GERALD H.

KURASHIMA 5071-0 American Savings Bank Tower, Suite 1310 1001 Bishop Street Honolulu, Hawaii 96813 Phone: 545-5120 Attorney for Plaintiff Duncan Sunahara IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA, Plaintiff, vs. DEPARTMENT OF HEALTH, STATE OF HAWAII, LORETTA FUDDY, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF HEALTH, STATE OF HAWAII; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; AND DOE GOVERNMENTAL ENTITIES 1-10, Defendants. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO.: 12-1-0006-01 [RAN] [DECLARATORY JUDGMENT] PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMPLAINT, FILED ON JANUARY 3, 2012; MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS; EXHIBITS 1 TO 5; DECLARATION OF DUNCAN SUNAHARA; DECLARATION OF GERALD H. KURASHIMA; CERTIFICATE OF SERVICE HEARING DATE:MARCH 8, 2012 TIME: 9:30 A.M. JUDGE: RHONDA A. NISHIMURA

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMPLAINT, FILED ON JANUARY 3, 2012 COMES NOW Plaintiff Duncan Sunahara, through his attorney, Gerald H. Kurashima, and files This Memorandum in Opposition to Defendant Department of Health, State of Hawaii’s Motion to Dismiss Complaint, filed January 3, 2012. For the reasons stated, this Court should find that Plaintiff has stated claims for relief and Defendant is not entitled to dismissal under HRCP, Rule 12(b)(6), or summary

judgment under Rule 56, and Defendant’s motion should be denied. DATED: Honolulu, Hawaii, .

GERALD H. KURASHIMA Attorney for Plaintiff Duncan Sunahara

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA, ) ) Plaintiff, ) vs. ) ) DEPARTMENT OF HEALTH, STATE ) OF HAWAII, LORETTA FUDDY, IN ) HER OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF ) ) HEALTH, STATE OF HAWAII; JOHN ) DOES 1-10; JANE DOES 1-10; DOE ) CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; AND DOE ) GOVERNMENTAL ENTITIES 1-10, ) Defendants. ) __________________________________ ) ) I. STATEMENT OF THE CASE Plaintiff Duncan Sunahara is the natural brother of Virginia Sunahara, deceased. On or about November 22, 2011, Plaintiff requested from the State of Hawaii, Department of Health (hereafter referred to as “State”), an estimate of the cost and expense to obtain a certified copy of Virginia Sunahara’s original Certificate of Live Birth (hereafter “Birth Certificate”), pursuant to Hawaii Revised Statute § 338-13(a). As stated in the Complaint, the Department of Health did not provide an estimate of the costs or provide a copy of Virginia Sunahara’s original Birth Certificate. The Department of Health had previously provided a “computer generated abstract” of Virginia Sunahara’s birth certificate. (See Abstract of Birth Certificate as Exhibit 1). However, a “computer generated abstract” is not a certified copy of an original birth certificate. Defendant State contends that because it provided a “computer generated abstract of the birth certificate,” the Plaintiff is not entitled to a certified copy of Virginia Sunahara’s original Birth Certificate, and Plaintiff also is not entitled to “have access to that original.” (State’s Memorandum in Support of Motion to Dismiss, at pp. 2-3). However, HRS § 338-13(a) expressly states, “the department of health shall upon request, furnish to any applicant a certified copy of any certificate, or the contents of any certificate on file in the department. . .” (Emphasis added). (See HRS § 338-13, as Exhibit 2). HAWAII RULES OF CIVIL NO.: 12-1-0006-01 [RAN] [DECLARATORY JUDGMENT] MEMORANDUM IN OPPOSITION TO DEFENDANT’S TO MOTION TO DISMISS

MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

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EVIDENCE, Rule 202(b) requires “mandatory judicial notice of law.” “The court shall take judicial notice of (1) the common law), (2) the constitution and statutes of the United States and of every state, territory, and other jurisdiction of the United States, . . .” (Emphasis added). Defendant State is required to produce a copy of Virginia Sunahara’s original Birth Certificate, and not merely a “computer generated abstract” HRS § 92F-11(d) also states, “Each agency shall assure reasonable access to facilities for duplicating records. . .” The Plaintiff has sufficiently stated claims for relief which precludes dismissal or summary judgment. II. ARGUMENT A. THE DEPARTMENT OF HEALTH IS REQUIRED UNDER HRS § 338-13(A), TO PROVIDE “A CERTIFIED COPY OF ANY CERTIFICATE.” THE DEPARTMENT HAS NOT MET ITS STATUTORY OBLIGATION BY PROVIDING ONLY A “COMPUTER GENERATED ABSTRACT.” 1. Plaintiff is Entitled to a Certified Copy of Virginia Sunahara’s Original Birth Certificate Under the Plain and Unambiguous Language of HRS § 338-13(a)

Defendant State claims that it produced a “computer generated abstract” of Virginia Sunahara’s birth certificate and that is all Plaintiff is entitled to obtain. The State contends, “there is no provision in either section 338-13 or 338-18, HRS that states that Plaintiff is entitled to obtain a certified copy of Virginia Sunahara’s original birth certificate. . .” In addition, the State claims that the Director of the Department of Health has the “authority to choose the process by which copies of vital records are made.” (Emphasis added). (State’s Memorandum in Support, p. 4). The issue before this Court is the interpretation of HRS § 338-13(a) and whether the Department of Health and State have properly interpreted, implemented and complied with the statute. Interpretation of a statute is a question of law for the courts. Maile Sky Court Co., Ltd. v. City & County of Honolulu, 85 Haw. 36, 39, 936 P.2d 672 (1997). “The construction of statutes and other laws is a matter which ultimately is for the court. More than a power, construction is a duty which the court must exercise and cannot surrender or waive. . . final responsibility for the interpretation of the law rests with the courts.” (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE LAW § 85. Under Hawaii law, “The primary duty of the courts in interpreting statutes is to ascertain and give effect to the intention of the legislature which, in the absence of a clearly contrary expression, is conclusively obtained from the language of the statute itself.” (Emphasis added). Stop H-3 Association v. State of Hawaii, 68 Haw. 154, 161, 706 P.2d 447 (1985). 4

In Mathewson v. Aloha Airlines, Inc., 82 Haw. 57, 71, 919 P.2d 969 (1996), the Hawaii Supreme Court held that, “The fundamental starting point is the language of the statute itself. . . Where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning.” In addition, “departure from the plain and unambiguous language of the statute cannot be justified without a clear showing that the legislature intended some other meaning would be given the language or that a literal interpretation would produce absurd or unjust results that are clearly inconsistent with the purposes and policies of the statute.” The court concluded, “[W]here there is no ambiguity in the language of the statute, and the literal application of the language would not produce an absurd or unjust result, clearly inconsistent with the purposes and policies of the statute. . . the statute must be given effect according to its plain and obvious meaning. (Emphasis added). See also Reefshare, Ltd. v. Nagata, 70 Haw. 93, 99, 762 P.2d 169 (1988). The statute in question, HRS § 338-13 states, (a) Subject to the requirements of sections 338-16, 338-17, and 338-18, the department of health shall, upon request, furnish to any applicant a certified copy of any certificate, or the contents of any certificate, or any part thereof. (b) Copies of the contents of any certificate on file in the department, certified by the department shall be considered for all purposes the same as the original, subject to the requirements of sections 338-16, 338-17 and 338-18. (c) Copies may be made by photography, dry copy reproduction, typing, computer printout or other process approved by the director of health. (Emphasis added). (See HRS § 338-13 as Exhibit 2). Under the plain and unambiguous language of HRS § 338-13(a), the Department of Health is required, “to furnish to any applicant a certified copy of any certificate.” Therefore, pursuant to HRS § 338-13(a), Plaintiff is entitled to a certified copy of the original Birth Certificate of Virginia Sunahara, which is “any certificate.” “[W]here no ambiguity appears, it has been presumed conclusively that the clear and explicit terms of a statute express the legislative intention. A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, . . .” (Emphasis added). 73 Am Jur 2d STATUTES § 194. “[I]n interpreting a statute, we give the words their common meaning, unless there is something in the statute requiring a different interpretation.” (Emphasis added). Iddings v. Mee-Lee, 82 Haw. 1, 7, 919 P.2d 263 (1996). 5

The Department of Health is required to comply with the express terms of a statute. “A statute is to be taken, construed, and applied in the form enacted. . . the legislature must be presumed to know the meaning of words, and to have used the words of a statute advisedly.” (Emphasis added). 73 Am Jur 2d STATUTES § 196. “[L]egislative enactments are presumptively valid and should be interpreted in such a manner as to give them effect.” State v. Mun Chung Tom, 69 Haw. 602, 752 P.2d 597 (1988) (Statutes must be read so as to give them effect). The plain language of the statute, HRS § 338-13(a) does not require any “interpretation.” “In order to justify construction by either an administrative agency or court, it must first appear that construction is necessary. An unambiguous statute may not be supplemented or altered in the guise of interpretation. Generally, inconvenience or hardships, if any, that result from following the statute as written, must be relieved by legislation, and construction may not be substituted for legislation.” (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE LAW § 78. A court may not depart from the literal construction of a statute unless it would produce an absurd result and “the literal construction. . . is clearly inconsistent with the purposes and policies of the act.” Richardson v. City & County of Honolulu, 76 Haw. 46, 54, 60, 868 P.2d 1193 (1994). A literal construction of the statute would not produce an absurd result and it is not inconsistent with the Department of Health’s obligation to provide certified copies of vital records to applicants. HRS § 338-13(a), requires the Department of Health to furnish “a certified copy of any certificate,” which includes original birth certificates. Pursuant to HRS § 338-13(a), Plaintiff is entitled to a certified copy of the original Birth Certificate of Virginia Sunahara, and Plaintiff has stated claims for relief which precludes dismissal or summary judgment. 2. The Department of Health Has Not Complied with the Law by Providing a “Computer Generated Abstract.” The Department Cannot Rely on HRS § 338-13 (c), Which Only Provides Authority as to the Method of Copying Records, but Not Discretion as to the Records the Department Must Provide

Defendant State and the Department of Health have not complied with the requirements of HRS § 338-13(a) merely because a “computer generated abstract” was provided to the Plaintiff. (See Abstract as Exhibit 1). Defendant State claims that, “The Director (Department of Health) has the authority to select and adopt the process of providing computer generated abstracts of vital records. . .” (Memorandum in Support, at pp. 4-5). The State relies on HRS § 338-13(c), which states, “Copies may be made by photography, dry copy reproduction, typing, computer printout or other process approved by the director of health.” (Emphasis added).

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However, the State misinterprets this statutory provision because it merely provides the Director with discretion to choose the “method or process” of producing copies, either by “photography, dry copy, typing or computer printout.” Contrary to the State’s “interpretation,” HRS § 338-13(c) does not grant the Director any “discretion” or authority to disregard the requirements of HRS § 338-13(a) to provide a “certified copy of any certificate.” This section only grants the Director the discretion and authority to approve the “manner or process” of making copies. If the Legislature had intended to grant the Director the sole discretion of providing only a “computer generated abstract,” the Legislature would have eliminated the requirement of providing “a certified copy of any certificate,” or alternatively, the Legislature could have expressly granted the Director with similar discretion or authority as in HRS § 338-13(a), but the Legislature has not done so. In addition, HRS § 338-13(c) cannot be construed as granting the Department of Health the sole discretion to provide a “computer generated abstract,” in lieu of a copy of a certified original Birth Certificate. This would effectively nullify the requirement of HRS § 338-13(a) of providing a “certified copy of any certificate.” HOH Corp. v. Motor Vehicle Industry Licensing Bd, DCCA, 69 Haw. 135, 736 P.2d 1271 (1987) (The law has long been clear that agencies may not nullify statutes). It is also a general rule of construction in the interpretation of a statute, “courts may not take, strike, or read anything out of a statute, or delete, subtract, or omit anything.” 73 Am Jur 2d STATUTES § 200. “[I]t is a cardinal rule of statutory construction that significance and effect should, if possible, . . . be accorded to every part of the act, including every section, paragraph, sentence or clause, phrase, and word, phrase, sentence and word.” (Emphasis added). 73 Am Jur 2d STATUTES § 250. “When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature which is to be obtained primarily from the language contained in the statute itself. Moreover, it is well-settled that courts are bound to give effect to all parts of a statute, and that no clause, sentence or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute.” (Emphasis added). State of Hawaii v. Magoon, 75 Haw. 164, 177, 858 P.2d 712 (1993); Hi Kai Inv. v. Aloha Futons, 84 Haw. 75, 929 P.2d 88 (1996) (The court, whenever possible, interprets every word, clause and sentence of a statute to give them effect). The Court must give effect to both HRS § 338-13(a) which requires the Department of Health to provide a 7

“certified copy of any certificate,” and HRS § 338-13(c) which provides the Director only discretion as to the method of copying records. 3. The Department of Health Does Not Have Any Discretion to Provide a “Computer Generated Abstract,” In Lieu of a Certified Copy of an Original Certificate

Although HRS § 338-13(a) states the Department of Health is to, “furnish to any applicant a certified copy of any certificate, or the contents of any certificate, or any part thereof,” this does not grant the Department an option or discretion to provide a “computer generated abstract” instead of a certified copy of Virginia Sunahara’s original Birth Certificate. While the term “or” is normally used a disjunctive, with a choice among two or more things, Hawaii law, HRS § 1-18, expressly states, “Each of the terms ‘or’ and ‘and,’ has the meaning of the other or both.” (Emphasis added). Therefore, under HRS § 1-18, the term “or” as used in HRS § 338-13(a), is to be interpreted as “and.” In re City & County of Honolulu Corporation Counsel, 54 Haw. 356, 374, 507 P.2d 169 (1973), the Hawaii Supreme Court held, “We are of the opinion that the disjunctive “or” in the context as used in Section 20 actually imparts the meaning of the conjunctive “and.” The sense of a word which harmonizes best with the whole context of the statute and promotes in the fullest manner the apparent policy and objects of the legislature must be adopted.” (Emphasis added). Even if “or” is used as a disjunctive, this does not grant the Department of Health the sole discretion or authority to decide the form of the document to provide to applicants. While, HRS § 338-13(c) specifically grants the Director of the Department of Health, “discretion” to approve the manner of copying vital records, it is significant that, such “discretion” is conspicuously absent in HRS § 338-13(a). “Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other.” HRS § 1-16. State by Attorney General v. Kapahi’s Heirs, 50 Haw. 237, 437 P.2d 321 (1968) (In the interpretation of section of the statutes, other sections of the statute in pari materia must be considered). Under Hawaii law, “where a statute with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject. . . is significant to show that a different intention existed.” (Emphasis added). State v. Rodgers, 68 Haw. 438, 718 P.2d 275 (1986). While the Director of the Department of Health has authority to approve the manner of copying vital records under HRS § 338-13(c), there is no such discretion to determine the form of the documents to provide under HRS § 338-13(a). The Department of Health’s lack of discretion 8

or authority leads to the logical conclusion that the Legislature intended for the Department to provide a “certified copy of any certificate” and this requirement is not met by merely providing a “computer generated abstract.” The obvious “solution” to the interpretation of HRS § 338-13(a), is that it is the applicant who can elect either a “computer generated abstract” or a “certified copy of an original birth certificate.” The statute does not give the Department of Health any discretion to make the decision for an applicant. The Court should find that the Department of Health does not have the discretion or authority under HRS § 338-13(a), to provide a “computer generated abstract” in lieu of a certified copy of Virginia Sunahara’s original Birth Certificate. 4. The Department of Health Is Not Entitled to Deference in its Interpretation of HRS § 338-13(a).

The Court is not required to give any deference to the Department of Health’s “interpretation” of HRS § 338-13(a), because it does not require any specialized expertise and interpretation of the law is a function of the courts. “[C]ourts have held that deference should be applied only where the agency’s special expertise is relevant, . . when a statutory interpretation presents a question of law, no particular deference is owed the agency’s interpretation of the applicable statute. (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE LAW § 85. Kaufman v. State Dept. of Social & Rehabilitation Services, 811 P.2d 876 (Kan. 1991) (In reviewing questions of law, the court may substitute its own judgment for that of the administrative agency). In Haole v. State, 111 Haw. 144, 150, 140 P.3d 377 (2006), the Hawaii Supreme Court held that an agency’s interpretation and application of a statute is generally accorded judicial deference. “However, an interpretation by an agency of a statute it administers is not entitled to deference if the interpretation is plainly erroneous and inconsistent with both the letter and intent not the statutory mandate.” City & County of Honolulu v. Ing, 100 Haw. 182, 58 P.3d 1229 (2002) (Judicial deference to administrative agencies does not apply when the agency’s reading of the statute contravene the legislature’s manifest purpose). In this case, the Legislature’s manifest purpose requires the Department of Health to provide a “certified copy of any certificate” to a qualified applicant. The Department of Health is not entitled interpret HRS § 338-13(a), as merely requiring it to provide a “computer generated abstract,” because this “interpretation” is erroneous and it effectively nullifies HRS § 338-13(a). 5. The Claim that the “Computer Generated Abstract” is to be Considered the Same as the Original is Irrelevant

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Defendant State claims that Plaintiff is only entitled to “computer generated abstract” because under HRS § 338-13(b), it is considered the same as the original. HRS § 338-13(b) states, “Copies of the contents of any certificate on file in the department, certified by the department shall be considered for all purposes the same as the original, subject to the requirements of sections 338-16, 338-17, and 338-18.” (Emphasis added). However, the fact that a certified “computer generated abstract” is “functionally equivalent” to the original document, does not relieve the Department of Health of its statutory obligation under HRS § 338-13(a) to provide a “certified copy of any certificate.” If the Legislature intended for a “computer generated abstract” to be a “substitute” for a “certified copy of any certificate,” the statute would have stated so. Instead, the Legislature only provides that “copies of the contents” like a certified “computer generated abstract,” is only a “functional equivalent” and not a substitute for providing an original birth certificate. B. THE DEPARTMENT OF HEALTH MAY NOT PROMULGATE REGULATIONS THAT CONTRAVENES THE LAW AND THE DEPARTMENT CANNOT VIOLATE ITS OWN REGULATIONS WHICH ARE CONSISTENT WITH THE STATUTE

Defendant State has submitted as the “Department of Health’s Public Health Regulations, Chapter 8B” (hereafter “Regulation”), “Exhibit A,” and cites Regulation 2.4B(2) that, “Abbreviated copies may be prepared by typing, by computer printout, or by any other process approved by the Director.” As discussed above as it relates to HRS § 338-13(c), this merely refers to the “method or process” of copying vital records, and does not grant the Department of Health any discretion to provide a “computer generated abstract” in lieu of “a certified copy of any certificate,” as required by HRS § 338-13(a). The Court can take judicial notice of Regulation 8B. “Upon reasonable notice to adverse parties, a party may request that the court take, and the court may take, judicial notice of. . .(2) all duly published regulations of federal and state agencies. . .” HAWAII RULES OF EVIDENCE , Rule 202(c). The Department of Health’s Rules and Regulations must conform and cannot conflict with HRS § 338-13(a). “Administrative rules must conform to the laws enacted by the legislature. . . [a] regulation may not enlarge, restrict, modify or contravene an existing statute, even with broad rulemaking authority has been granted, and that administrative regulations in conflict with the constitution or statutes are generally declared to be null or void. When a conflict exists between a statute and a regulation, the regulation must be set aside to the extent of the conflict.” (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE LAW § 227. 10

In Puana v. Sunn, 69 Haw. 187, 737 P.2d 867 (1987), the Hawaii Supreme Court held that, “The DSSH’s authority, however, is limited to enacting rules which carry out and further purposes of the legislation and do not enlarge, alter, or restrict the provisions of the act being administered.” See also In re Doe Children, 73 Haw. 15, 19, 827 P.2d 1144 (1992) (Rules enacted by administrative agency cannot contravene the statute the agency is implementing.) In Jacober v. Sunn, 6 Haw.App. 160, 167, 715 P.2d 813 (1986), the court held that an agency, “may not enact rules and regulations which enlarge, alter, or restrict the provisions of the act being administered.” (Emphasis added). “It is axiomatic that an administrative rule cannot contradict or conflict with the statute it attempts to implement.” Hyatt Corp. v. Honolulu Liquor Commission, 69 Haw. 238, 241, 738 P.2d 1205 (1987). 1. The Department of Health’s Own Regulation Allows it to Provide “Certified Copies of Original Birth Certificates.” The Department of Health Appears to be Violating Its Own Regulations.

The Department of Health has promulgated “Department of Health’s Public Health Regulations,” Chapter 8B, Exhibit A to their pleading. The Regulation actually is consistent with HRS § 338-13(a), and expressly provides that the Department of Health shall provide to an applicant, a certified copy of an original birth certificate. Regulation 2.5 states: 2.5 Eligibility for Copies of Birth Certificates A. Standard Copy A certified copy of the original birth certificate on file with the Department of Health as described in paragraph 2.4(b)(1) may be issued to: (1) The registrant, his descendents, his authorized agent or upon order of a court of competent jurisdiction. . . . (Emphasis added). (See Excerpt of Regulation, as Exhibit 3). The Department of Health’s own regulations authorizes the issuance of a certified original birth certificate, rather than a “computer generated abstract.” It appears that the Department’s Regulation complies with the statutory requirements of HRS § 338-13(a). However, the Director and Department of Health have disregarded both the statute and their own regulation. Thomas v. Dept. of Social and Health Services, 793 P.2d 466 (Wash.App. 1990) (An agency’s interpretation of its own rule remains subject to independent appellate review). Under Hawaii law, the court interprets an agency’s rules and regulation according to the general rules of statutory construction. “[T]he general principles of construction which applies to statutes also apply to administrative rules. As in statutory construction, courts look first at an 11

administrative rule’s language. If an administrative rules language is unambiguous and its literal application is neither inconsistent with the policies of the statute the rule implements[,] nor produces an absurd or unjust result, courts enforce the rules plain meaning.” (Emphasis added). In re Doe Children, 105 Haw. 38, 53, 93 P.3d 1145 (2004). The plain and unambiguous language, of the Department of Health’s Regulation, paragraph 2.5 A is consistent with the HRS § 338-13(a), requiring the Department to provide a “copy of any certificate.” “When a rule does not conflict with statutory and constitutional requirements, courts will ascertain and effectuate the intent of the agency which promulgated the rule.” (Emphasis added). Williams v. Hawaii Medical Service Association, 71 Haw. 545, 549-50, 798 P.2d 442 (1990). The Department of Health is not entitled to “deference” of interpreting its own Regulations because its “interpretation” contradicts both the statute, HRS § 338-13(a) and the Department’s own Regulation 2.5 A. “We grant deference in reviewing an administrative agency’s interpretation of its own rules unless a decision is clearly erroneous or inconsistent with the underlying legislative purpose.” (Emphasis added). Malama Maha’ulepu v. Land Use Commission, 71 Haw. 332, 339, 790 P.2d 906 (1990). [A] court construing a regulation will give substantial deference to the administrative construction or interpretation by an agency of its own regulation so long as it is reasonable, and not in conflict with the plain language of the statute. . . Nevertheless, it is the court rather than the agency, which must ultimately determine the true construction or interpretation, and court will not construe rules in a manner inconsistent with the governing statute or the regulation itself. (Emphasis added). 2 Am Jur 2d ADMINISTRATIVE LAW § 240. Although the Department of Health’s Regulation 2.5 A is consistent with HRS § 33813(a), the Department has chosen to violate its own regulation by only providing “computer generated abstracts” instead of certified copies of “original birth certificates.” “[O]nce promulgated, the rules made by an agency to govern its activity cannot be violated or waived by that agency. Agencies are bound by the rules they promulgate. . . and agencies cannot arbitrarily disregard their rules. . . .” 2 Am Jur 2d ADMINISTRATIVE LAW § 237. Dyniewicz v. United States, 743 F.2d 484 (9th Cir. Haw. 1984) (Agencies are generally bound by regulations they promulgate, procedural rules as well as substantive rules are binding).

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The Department of Health’s Regulation 2.5 A, states that it will provide “certified copies of original birth certificates.” However, the Department is not complying with its own Regulation, and claims it only needs to provide a “computer generated abstract” to satisfy the requirements of the statute. The Court should find that the Department of Health is violating the statute and its own Regulation. Under both the statute and the Department’s Regulation, Plaintiff is entitled to a certified copy of the original Birth Certificate of Virginia Sunahara. The Court should find that Plaintiff has sufficiently stated a claim for relief, which precludes dismissal of the Plaintiff’s Complaint. 2. Under the Department of Health’s Regulation, Plaintiff is Entitled to Access to the Original Birth Certificate of Virginia Sunahara

The State claims that Plaintiff is not entitled to “personally inspect and be present for copying the original birth certificate” because it would frustrate the government function of preserving the safety and security of governmental records. (State’s Memorandum in Support, pp. 7-8). However, Plaintiff is not requesting “unfettered access” to all of the Department’s vital records, and his request is limited only to the original Birth Certificate of Virginia Sunahara. A Department of Health employee can retrieve the document so no other record would be compromised. Plaintiff is entitled to access to the records under HRS § 92F-11(d) which states in relevant part, “Each agency shall assure reasonable access to facilities for duplicating records. . .” The Department of Health’s Regulation also provides for access to vital records. 2.1 Access to Vital Records C. Individuals Upon written request and proper identification, the state registrar or local registrar of a registration district (county) may permit an individual to examine a certificate for the purpose of verifying an entry or correcting an error; provided that the individual is eligible to receive such information as described in Paragraph 2.5 through 2.9 herein. (Emphasis added). (See Excerpt of Regulation, as Exhibit 4). As for security concerns, the Department’s Regulation 2.1 G provides, “. . . all persons granted access to the vital records shall be afforded access under the supervision of a person authorized by the Director of Health.” (Emphasis added). (See Excerpt of Regulation, as Exhibit 5). Plaintiff is willing to comply with the Regulations, if the Department of Health will comply with its own Regulations.

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C.

THE COURT SHOULD STRIKE AND DISREGARD COUNSEL’S INADMISSIBLE TESTIMONY AND ARGUMENT REGARDING THE DEPARTMENT’S COMPLIANCE WITH THE HAWAII ADMINISTRATIVE PROCEDURES ACT (HAPA).

The Court should strike and disregard inadmissible statements made by the Defendant State’s counsel, regarding compliance with the notice requirements under the Hawaii Administrative Procedures Act (HAPA), HRS §§ 91-1 to 4. “A party making or opposing a motion for summary judgment may only rely on facts which are before the court as provided by Rule 56, HRCP. . . Unverified statements of fact in counsel’s memorandum or representations made in oral argument cannot be considered in determining a motion for summary judgment.” (Emphasis added). Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981). In Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 297, 978 P.2d 727 (1999), the court held that, “The unverified statements of fact alleged in counsel’s memorandum, as well as counsel’s oral representations advanced at the hearing on Pioneer’s motion, cannot be the basis for the circuit court’s award of summary judgment. . . Indeed, those facts alleged that were unverified or improperly verified were not properly before the circuit court in its determination.” Similarly, in United States v. Property in Name of Alexander Morio Toki, 779 F.Supp. 1272 (D. Haw. 1991), the U.S. District Court held, “Legal memoranda and oral argument are not evidence. . . .” To the extent that Defendant State’s memorandum in support of its motion to dismiss presents inadmissible evidence, facts, and argument, the Court should strike and disregard such statements. D. DEFENDANT STATE HAS SUPPLEMENTED ITS MOTION TO DISMISS WITH MATTERS OUTSIDE THE PLEADINGS. THE COURT SHOULD CONSIDER THIS MOTION AS ONE FOR SUMMARY JUDGMENT.

Defendant State’s motion to dismiss is “supplemented” with Exhibit A, “Public Health Regulations,” Chapter 8B and an affidavit of counsel. If the Court considers appended material, the Defendant’s “motion to dismiss” should properly be considered as one for summary judgment pursuant to HRCP Rules 12(b) and 56(b). HRCP Rule 12(b) states, “if, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, . . .” Consideration of matters outside the pleadings transforms a motion seeking dismissal of a complaint into an HRCP Rule 56 motion for summary judgment. Au v. Au, 63 Haw. 210, 213, 626 14

P.2d 173 (1981). “A Rule 12(b)(6) motion to dismiss. . . shall be treated as a Rule 56, HRCP, motion for summary judgment when ‘matters outside the pleadings’ are presented to and not excluded by the court in making its decision on the motion.” Rosa v. CWJ Contractors, Ltd., 4 Haw.App. 210, 214, 664 P.2d 745 (1983). If the Court considers this motion as one for summary judgment, the Court should find that Defendant State has failed to meet its burden. A party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact properly before the court, even if the opposing party at trial would have the burden of proof on a particular issue. MOORE’S FEDERAL PRACTICE ¶ 56.15[3]. In a motion for summary judgment, the movant must show “the absence of a material and triable issue of fact.” Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Under Hawaii law, “if the evidence presented on the motion is subject to conflicting interpretations, or reasonable men might differ as to its significance, summary judgment is improper.” Kajiya v. Board of Water Supply, 2 Haw.App. 221, 224, 629 P.2d 635 (1981). In McKeague v. Talbert, 3 Haw.App. 646, 651, 658 P.2d 898 (1983), the court noted that, “It is only where it is perfectly clear that there are no issue in the case that a summary judgment is proper.” (Emphasis added) Citing Pierce v. Ford Motor Company, 190 F.2d 910, 915 (4th Cir. 1951). In this case, the Plaintiff has established a statutory right to obtain a certified copy of the original Birth Certificate of Virginia Sunahara pursuant to HRS § 338-13(a). The Department of Health’s own Regulation also provides for the issuance of, “A certified copy of the original birth certificate on file. . . .” (Regulation 2.5 A, Exhibit A). Accordingly, if the Court considers matters outside the record and treats this as a motion for summary judgment, the Court should find that there are disputed issues of material fact and Defendant State’s motion should be denied. E. COURTS DO NOT VIEW MOTIONS TO DISMISS FAVORABLY AND SHOULD DENY SUCH MOTIONS IF THE PLAINTIFF CAN PROVE ANY SET OF FACTS TO SUPPORT HIS CLAIM.

Alternatively, if the Court considers this as a HRCP, Rule 12(b)(6) motion, the Court should nevertheless deny Defendant State’s motion to dismiss. A motion to dismiss under HRCP, Rule 12(b)(6) is generally viewed by the courts with disfavor. A motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted, “unless it appears to a certainty that no relief can be granted under any set of facts. . . .” (Emphasis added). Giuliani v. Chuck, 1 Haw.App. 379, 620 P.2d 733 (1980). Similarly, in Midkiff v. Castle and Cooke, Inc., 45 Haw. 409, 414, 368 P.2d 887 (1962), the Hawaii Supreme Court held, “In apprising the sufficiency of 15

the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, . . .” (Emphasis added). In Rosa v. CWJ Contractors, Ltd., 4 Haw.App. 210, 214, 664 P.2d 745 (1983), the court held, “A Rule 12(b)(6), dismissal is warranted only if the claim is ‘clearly without any merit and this want of merit may consist of an absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim.’” (Emphasis added). The court in Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981) also noted that in a motion to dismiss, the court deems the allegations contained in the complaint as true. “In considering the sufficiency of the allegations in the complaint as against a Rule 12(b)(6) motion, the plaintiff’s description of what happened along with any conclusions that can reasonably be drawn therefrom will be accepted.” (Emphasis added). Moore v. Allstate Insurance Co., 6 Haw.App 646, 650, 736 P.2d 73 (1987) citing 5 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1357. See also 61A Am Jur 2d PLEADINGS § 231 (A motion to dismiss is not favored by the courts, and pleadings alleged to state no cause of action or defense will be liberally construed in favor of the pleader). In this case, Plaintiff has established that he has a statutory right under HRS § 338-13(a) to obtain a certified copy of the original Birth Certificate of Virginia Sunahara. Plaintiff Sunahara has established the sufficiency of his claims of relief and Defendant State and the Department of Health are not entitled to dismissal of Plaintiff’s complaint under HRCP, Rule 12(b)(6). III. CONCLUSION Defendant State has filed this motion to dismiss pursuant to HRCP, Rule 12(b)(6), claiming that Plaintiff Duncan Sunahara has failed to state a claim for which relief can be granted. However, as discussed herein, Defendant State has misinterpreted the plain and unambiguous language of the statute, HRS § 338-13. The Court should find that HRS § 338-13(a) requires the Department of Health to provide Plaintiff a certified copy of the original Birth Certificate of his deceased sister, Virginia Sunahara. The Court should also find that the Department cannot meet its statutory requirement by merely providing a “computer generated abstract.” In addition, even if the “contents” of such an abstract can be “considered for all purposes, the same as the original,” is not dispositive and does not relieve the Department of its statutory duty to provide a “certified copy of any certificate.”

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For the reasons stated, the Defendant’s motion to dismiss, or if considered as a motion for summary judgment, should be denied. DATED: Honolulu, Hawaii, .

GERALD H. KURASHIMA Attorney for Plaintiff Duncan Sunahara

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TABLE OF AUTHORITIES CASES PAGE Au v. Au, 63 Haw. 210, 626 P.2d 173 (1981)........................................................................14, 16 City & County of Honolulu v. Ing, 100 Haw. 182, 58 P.3d 1229 (2002)..............................8 Dyniewicz v. United States, 743 F.2d 484 (9th Cir. Haw. 1984)............................................12 Giuliani v. Chuck, 1 Haw.App. 379, 620 P.2d 733 (1980)....................................................16 HOH Corp. v. Motor Vehicle Industry Licensing Bd, DCCA, 69 Haw. 135, 736 P.2d 1271 (1987)........................................................................................................6 Haole v. State, 111 Haw. 144, 140 P.3d 377 (2006)..............................................................8 Hi Kai Inv. v. Aloha Futons, 84 Haw. 75, 929 P.2d 88 (1996)..............................................6 Hyatt Corp. v. Honolulu Liquor Commission, 69 Haw. 238, 738 P.2d 1205 (1987)........................................................................................................ 10 Iddings v. Mee-Lee, 82 Haw. 1, 919 P.2d 263 (1996)...........................................................4 In re Doe Children, 105 Haw. 38, 93 P.3d 1145 (2004)........................................................10, 11 In re City & County of Honolulu Corporation Counsel, 54 Haw. 356, 507 P.2d 169 (1973)..........................................................................................................7 Jacober v. Sunn, 6 Haw.App. 160, 715 P.2d 813 (1986).......................................................10 Kajiya v. Board of Water Supply, 2 Haw.App. 221, 629 P.2d 635 (1981)............................15 Kaufman v. State Dept. of Social & Rehabilitation Services, 811 P.2d 876 (Kan. 1991).......................................................................................................................8 Maile Sky Court Co., Ltd. v. City & County of Honolulu, 85 Haw. 36, 936 P.2d 672 (1997)..........................................................................................................3 Malama Maha’ulepu v. Land Use Commission, 71 Haw. 332, 790 P.2d 906 (1990)..........................................................................................................12 Mathewson v. Aloha Airlines, Inc., 82 Haw. 57, 919 P.2d 969 (1996)..................................3 McKeague v. Talbert, 3 Haw.App. 646, 658 P.2d 898 (1983)..............................................15 Midkiff v. Castle and Cooke, Inc., 45 Haw. 409, 368 P.2d 887 (1962).................................16 Moore v. Allstate Insurance Co., 6 Haw.App 646, 736 P.2d 73 (1987)................................16 Pierce v. Ford Motor Company, 190 F.2d 910 (4th Cir. 1951)..............................................15 Pioneer Mill Co., Ltd. v. Dow, 90 Haw. 289, 978 P.2d 727 (1999)......................................14 Puana v. Sunn, 69 Haw. 187, 737 P.2d 867 (1987)...............................................................10 Reefshare, Ltd. v. Nagata, 70 Haw. 93, 762 P.2d 169 (1988)...............................................3 Richards v. Neilsen Freight Lines, 810 F.2d 898 (9th Cir. 1987)...........................................15 Richardson v. City & County of Honolulu, 76 Haw. 46, 868 P.2d 1193 (1994)...................5 Rosa v. CWJ Contractors, Ltd., 4 Haw.App. 210, 664 P.2d 745 (1983)...............................15, 16 18

State by Attorney General v. Kapahi’s Heirs, 50 Haw. 237, 437 P.2d 321 (1968)..........................................................................................................7 State of Hawaii v. Magoon, 75 Haw. 164, 858 P.2d 712 (1993)...........................................6 State v. Mun Chung Tom, 69 Haw. 602, 752 P.2d 597 (1988)..............................................4 State v. Rodgers, 68 Haw. 438, 718 P.2d 275 (1986)............................................................7 Stop H-3 Association v. State of Hawaii, 68 Haw. 154, 706 P.2d 447 (1985)...................... 3 Thomas v. Dept. of Social and Health Services, 793 P.2d 466 (Wash.App. 1990).............................................................................................................11 United States v. Property in Name of Alexander Morio Toki, 779 F.Supp. 1272 (D. Haw. 1991)....................................................................................14 Williams v. Hawaii Medical Service Association, 71 Haw. 545, 798 P.2d 442 (1990).......................................................................................................... 12 STATUTES PAGE HRS § 1-16............................................................................................................................7 HRS § 1-18............................................................................................................................7 HRS §§ 91-1 to 4, Hawaii Administrative Procedures Act (HAPA).....................................14 HRS § 92F-11(d)....................................................................................................................2, 13 HRS § 338-13....................................................................................................................2, passim HRS § 338-13(a)...............................................................................................................2, passim HRS § 338-13(b)....................................................................................................................9 HRS § 338-13(c)....................................................................................................................5-9 RULES PAGE HRCP Rule 12(b)...................................................................................................................14 HRCP Rule 12(b)(6)..............................................................................................................15-17 HRCP Rule 56........................................................................................................................15, 17 HRCP Rule 56(b)...................................................................................................................14 HAWAII RULES OF EVIDENCE, Rule 202(b)..................................................................................2 HAWAII RULES OF EVIDENCE, Rule 202(c)..................................................................................10 Department of Health’s Public Health Regulations, Chapter 8B...................................9, passim TREATISES PAGE 2 Am Jur 2d ADMINISTRATIVE LAW § 78...................................................................................5 2 Am Jur 2d ADMINISTRATIVE LAW § 85...................................................................................3, 8 2 Am Jur 2d ADMINISTRATIVE LAW § 227.................................................................................10 2 Am Jur 2d ADMINISTRATIVE LAW § 237.................................................................................12

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2 Am Jur 2d ADMINISTRATIVE LAW § 240.................................................................................12 61A Am Jur 2d PLEADINGS § 231............................................................................................16 73 Am Jur 2d STATUTES § 194.................................................................................................4 73 Am Jur 2d STATUTES § 196.................................................................................................4 73 Am Jur 2d STATUTES § 200.................................................................................................6 73 Am Jur 2d STATUTES § 250.................................................................................................6 MOORE’S FEDERAL PRACTICE ¶ 56.15[3]....................................................................................17 5 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 1357......................................16

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TABLE OF CONTENTS TABLE OF AUTHORITIES i-iii I. II. STATEMENT OF THE CASE 1 ARGUMENT 2 A. THE DEPARTMENT OF HEALTH IS REQUIRED UNDER HRS § 338-13(A), TO PROVIDE “A CERTIFIED COPY OF ANY CERTIFICATE.” THE DEPARTMENT HAS NOT MET ITS STATUTORY OBLIGATION BY PROVIDING ONLY A “COMPUTER GENERATED ABSTRACT” 2 1. Plaintiff is Entitled to a Certified Copy of Virginia Sunahara’s Original Birth Certificate Under the Plain and Unambiguous Language of HRS § 338-13(a) .......................................................................................................................... 2 The Department of Health Has Not Complied with the Law by Providing a “Computer Generated Abstract.” The Department Cannot Rely on HRS § 338-13 (c), Which Only Provides Authority as to the Method of Copying Records, but Not Discretion as to the Records the Department Must Provide .......................................................................................................................... 5 The Department of Health Also Does Not Have Any Discretion to Provide a “Computer Generated Abstract,” In Lieu of a Certified Copy of an Original Certificate .......................................................................................................................... 7 The Department of Health Is Not Entitled to Deference in its Interpretation of HRS § 338-13(a) .......................................................................................................................... 8 The Claim that the “Computer Generated Abstract” is to be Considered the Same as the Original is Irrelevant .......................................................................................................................... 9

2.

3.

4.

5.

B.

THE DEPARTMENT OF HEALTH MAY NOT PROMULGATE REGULATIONS THAT CONTRAVENES THE LAW AND THE DEPARTMENT CANNOT VIOLATE ITS OWN REGULATIONS WHICH ARE

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CONSISTENT WITH THE STATUTE 9 1. The Department of Health’s Own Regulation Allows it to Provide “Certified Copies of Original Birth Certificates.” The Department of Health Appears to be Violating Its Own Regulations. .......................................................................................................................... 10 Under the Department of Health’s Regulation, Plaintiff is Entitled to Access to the Original Birth Certificate of Virginia Sunahara .......................................................................................................................... 13

2.

C.

THE COURT SHOULD STRIKE AND DISREGARD COUNSEL’S INADMISSIBLE TESTIMONY AND ARGUMENT REGARDING THE DEPARTMENT’S COMPLIANCE WITH THE HAWAII ADMINISTRATIVE PROCEDURES ACT (HAPA) 14

D.

DEFENDANT STATE HAS SUPPLEMENTED ITS MOTION TO DISMISS WITH MATTERS OUTSIDE THE PLEADINGS. THE COURT SHOULD CONSIDER THIS MOTION AS ONE FOR SUMMARY JUDGMENT..............14 COURTS DO NOT VIEW MOTIONS TO DISMISS FAVORABLY AND SHOULD DENY SUCH MOTIONS IF THE PLAINTIFF CAN PROVE ANY SET OF FACTS TO SUPPORT HIS CLAIM........................................................16

E.

III.

CONCLUSION...................................................................................................................17

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA, ) ) Plaintiff, ) vs. ) DEPARTMENT OF HEALTH, STATE OF ) ) HAWAII, LORETTA FUDDY, IN HER OFFICIAL CAPACITY AS DIRECTOR OF ) ) THE DEPARTMENT OF HEALTH, ) STATE OF HAWAII; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS ) ) 1-10; DOE PARTNERSHIPS 1-10; AND DOE GOVERNMENTAL ENTITIES 1-10, ) ) Defendants. ) ___________________________________ ) CIVIL NO.: 12-1-0006-01 [RAN] [DECLARATORY JUDGMENT] DECLARATION OF DUNCAN SUNAHARA

DECLARATION OF DUNCAN SUNAHARA I, Duncan Sunahara, declare the following: 1. I am the Plaintiff in the above-entitled case, and I have personal knowledge of the matters set forth herein. I am qualified to authenticate exhibits and I am competent to testify to the matters stated herein. 2. parents. 3. I previously requested a certified copy of Virginia Sunahara’s original birth certificate from the State of Hawaii Department of Health. However, the Department of Health provided me a “computer generated abstract” of Virginia Sunahara’s birth certificate. 4. Health. 5. In November 2011, I requested a certified copy of the original birth certificate of Virginia Sunahara and also for an estimate of the costs to pay for a certified copy of the original document. The Department of Health did not respond by Exhibit 1 is a true and correct copy of the record provided by the Department of I am the natural brother of Virginia Sunahara, deceased, and we share common

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providing me a certified copy of the original birth certificate, nor to my request for an estimate of the costs to obtain the records, which I was willing to pay. 6. 7. This civil action was commenced to compel the Department of Health to provide a I declare under penalty of law that the foregoing is true and correct. certified copy of the original birth certificate of my deceased sister, Virginia Sunahara. DATED: Honolulu, Hawaii, _________________________________________.

___________________________________ DUNCAN SUNAHARA

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA, ) CIVIL NO.: 12-1-0006-01 [RAN] ) [DECLARATORY JUDGMENT] Plaintiff, ) vs. ) DECLARATION OF GERALD H. KURASHIMA ) DEPARTMENT OF HEALTH, STATE OF ) HAWAII, LORETTA FUDDY, IN HER ) OFFICIAL CAPACITY AS DIRECTOR OF ) THE DEPARTMENT OF HEALTH, STATE ) OF HAWAII; JOHN DOES 1-10; JANE DOES ) 1-10; DOE CORPORATIONS 1-10; DOE ) PARTNERSHIPS 1-10; AND DOE ) GOVERNMENTAL ENTITIES 1-10, ) Defendants. ) _______________________________________ ) DECLARATION OF GERALD H. KURASHIMA

I, Gerald H. Kurashima, declare and states as follows: 1. herein. 2. 3. Exhibit 2 is a true and correct copy of HRS § 338-13. Exhibit 3 is a true and correct copy of an excerpt of the Department of Health’s I am an attorney at law, licensed to practice law in the State of Hawaii. I am Plaintiff Duncan Sunahara’s attorney and I have personal knowledge of the matters set forth

Public Health Regulations, Chapter 8B, 2.5 A, “Standard Copy,” Exhibit A to the State’s Memorandum in Support of its Motion to Dismiss. 4. 5. 6. Exhibit 4 is a true and correct copy of an excerpt of Public Health Regulations, Exhibit 5 is a true and correct copy of an excerpt of Public Health Regulations, I declare under penalty of law that the foregoing is true and correct. Chapter 8B, 2.1 C, “Access to Vital Records, Individuals,” Exhibit A to the State’s Memorandum. Chapter 8B, Regulation 2.1 G, “Limitations,” Exhibit A to the State’s Memorandum. DATED: Honolulu, Hawaii, _________________________________________. Gerald H. Kurashima IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAII DUNCAN SUNAHARA, ) CIVIL NO.: 12-1-0006-01 [RAN] ) [DECLARATORY JUDGMENT] 25

) ) CERTIFICATE OF SERVICE vs. ) DEPARTMENT OF HEALTH, STATE OF ) ) HAWAII, LORETTA FUDDY, IN HER OFFICIAL CAPACITY AS DIRECTOR OF ) ) THE DEPARTMENT OF HEALTH, ) STATE OF HAWAII; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS ) ) 1-10; DOE PARTNERSHIPS 1-10; AND DOE GOVERNMENTAL ENTITIES 1-10, ) ) Defendants. ___________________________________ Plaintiff, CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document will be served by hand delivery or U.S. Mail, postage prepaid, upon the following, through counsel, upon the filing of this document: David M. LOUIE Attorney General, State of Hawaii HEIDI M. RIAN JILL T. NAGAMINE REBECCA E. QUINN. Deputy Attorneys General 465 South King Street, Room 200 Honolulu, Hawaii 96813 Attorneys for Department of Health DATED: Honolulu, Hawaii, .

GERALD H. KURASHIMA Attorney for Plaintiff Duncan Sunahara

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