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Hawaii Attorney Schools Hawaii Department of Health and Vexatious Litigant on Hawaii Law and Procedure
Sunahara v Fuddy(Hawaii-DOH) - Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss -In the Circuit Court of the First Circuit State of Hawaii - 2/28/2012
Birther Report
2/28/2012
Excerpt:
Hearing set for March 8th, 2012 at 9:30 A.M. before Judge Rhonda Nishimura
Excerpts from local Hawaii attorney Gerald Kurashima's memorandum:
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMPLAINT, FILED ON JANUARY 3, 2012
"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 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.
-JUMP-
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).
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."
View the complete Birther Report presentation at:
http://obamareleaseyourrecords.blogs...ls-hawaii.html
View the complete original memorandum by Duncan Sunahara's lawyer, in opposition to the Hawaii DOH lawyer's Motion to Dismiss at:
http://www.scribd.com/doc/83139841/S...cuit-2-28-2012
Sunahara v Fuddy(Hawaii-DOH) - Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss -In the Circuit Court of the First Circuit State of Hawaii - 2/28/2012
Birther Report
2/28/2012
Excerpt:
Hearing set for March 8th, 2012 at 9:30 A.M. before Judge Rhonda Nishimura
Excerpts from local Hawaii attorney Gerald Kurashima's memorandum:
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS COMPLAINT, FILED ON JANUARY 3, 2012
"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 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.
-JUMP-
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).
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."
View the complete Birther Report presentation at:
http://obamareleaseyourrecords.blogs...ls-hawaii.html
View the complete original memorandum by Duncan Sunahara's lawyer, in opposition to the Hawaii DOH lawyer's Motion to Dismiss at:
http://www.scribd.com/doc/83139841/S...cuit-2-28-2012