Legal Defense to State of Hawaii Versus Leonard G. Horowitz for alleged "Truancy" of Child Quarantined from School for Failing to Take the TB Skin Test Due to Religious Objections


 


 

 

Tuberculosis skin testing of low risk school children in violation of national public health standards and CDC advisories is still ongoing in Hawaii. Dr. Horowitz has been laboring legally and legislatively since 2002 to rebuke this affront to the public's health. This answer to the State's charge of "Truancy" pertaining to Dr. Horowitz's daughter's forced quarantine was filed on Dec. 12, 2006 in Hilo's Third Circuit Court. The hearing is Dec. 18.

Dr. Leonard G. Horowitz co-authored this legal challenge to the state's TB skin testing program with attorney Gary C. Zamber. Dr. Horowitz is an internationally known authority in public health and emerging diseases. One of his three national best-sellers, Emerging Viruses: AIDS & Ebola—Nature, Accident or Intentional? is credited by federal health officials as being among the most persuasive vaccine risk awareness texts in America.

Dr. Horowitz lives with his wife and three unvaccinated children on the Big Island of Hawaii. His official website is www.drlenhorowitz.com.

 

Leonard G. Horowitz
13-3775 Kalapana Highway
Pahoa, HI 96778
Telephone: 808-965-2112
Facsimile: 808-965-2002

Attorney for Defendant, pro se

 

IN THE FAMILY COURT OF THE THIRD CIRCUIT

STATE OF HAWAII

STATE OF HAWAII

              Plaintiff

          vs.

 

LEONARD G. HOROWITZ

              Defendant

                           

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Family Case-J No. 0075006
(Hilo)
(School Non-attendance))

 

ANSWER TO COMPLAINT; EXHIBITS “A-F”; NOTICE OF ANSWER TO COMPLAINT AND CERTIFICATE OF SERVICE; MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND DECLARATORY RELIEF; MEMORANDUM IN SUPPORT OF MOTION; NOTICE OF MOTION AND CERTIFICATE OF SERVICE; DECLARATION OF LEONARD G. HOROWITZ; DECLARATION OF ALENA N. HOROWITZ; DECLARATION OF JACQUELINE G. LINDENBACH; NOTICE OF DECLARATIONS AND CERTIFICATE OF SERVICE

Hearing:
Date: Monday, Dec. 18, 2006
Time: 2:00 p.m.
Judge: Ben H. Gaddis        

 

 

ANSWER TO COMPLAINT

COMES NOW Defendant LEONARD G. HOROWITZ, by and through pro se representation, pursuant to Rule 7(a) and (b) of Hawaii Rules of Civil Procedure (HRCP), HRS § 711-1106 (b)(c), HRCP Rules 9 and 13, for cause of action against the above-named Defendant, alleges and avers as follows:

PARTIES

  1. Defendant Leonard G. Horowitz is the Overseer of a Judeo-Christian Ministry committed to sustaining Biblical blood purity laws; an expert in public health and emerging diseases; and a resident of Hawaii County whose legal address is 13-3775 Kalapana Highway, Pahoa, HI 96778.

 

  1. Defendant Horowitz is Guardian Ad Litem of minor child Alena Netia Horowitz, a fourteen year-old Hilo High School Freshman, varsity athlete, and straight “A” student of record.
  1. Hilo High School Principal Robert Dircks filed this complaint allegedly on behalf of the minor child and as agent for Department of Education and the State of Hawaii.

 


FACTUAL ALLEGATIONS

 

  1. Between July 27 and September 1, 2006, Defendant presented Hilo High School officials with two signed written notices requiring religious exemptions to vaccinations and “TB Clearance” for child, Alena Horowitz, along with “TB Free” status certificate issued by licensed medical doctor.
  1. Disregarding these documents, and numerous statutes cited below, on September 1, 2006, Principle Robert Dircks administered Alena Horowitz’s embarrassing and stigmatizing removal from class and forced quarantine (initially in nurses room and subsequently at home), for failure to consent to the religiously objectionable blood intoxicating tuberculosis skin test.

 

  1. This quarantine, and manner of serving it, violated the child’s and Defendants:
    1. Rights guaranteed by the First and Fourteenth Amendments of the U.S. Constitution;
    2. similar laws in Constitution of the State of Hawai’I,
    3. State of Hawaii statutes HRS §325-34 and §325-37 governing administrative requirements for the control and prevention of infectious diseases including tuberculosis;
    4. HRS §321-11(22) requiring religious exemptions for parents objecting to medical examinations and immunizations on religious grounds;
    5. HRS §302A-1156 requiring exemptions be administered to parents objecting for religious practices to immunization and “TB Clearance” (including TB skin testing);
    6. HRS §302A-1158 that provides additional support for the fact that religious exemptions exist and are required for parents and state agency administrators otherwise requiring the Tb skin test for school admission to children “who have not been exempted under section 302A-1156 . . .”; and
    7. HAR §157-5(b) of the Department of Health Administrative Rules that provides allowance for religious exemption from “immunization”—defined as an administrative process akin to “TB Clearance.”   

 

  1. Between September 5, 2006 and the present, Defendant has been harassed daily with victim-blaming telephone calls alleging “Truancy” of the child.
  2. Responding to these telephonic harassments, Defendant served several notices to child’s Principal Robert Dircks and academic Counselor Phil Geraci to cease and desist this flagrant harassment given officials caused Alena’s school suspension and this frivolous action.
  3. In an effort to further harass for the purpose of extorting compliance by the child with the aforementioned criminal infractions of state laws (i.e., violations regarding TB skin testing and required religious exemptions), during the month of September, 2006, Principal Robert Dircks:
    1. directed school administrators to block the child’s timely access to her homework assignments (EXHIBIT “A” “REQUEST FOR WORK” showing dates);
    2. conspired to threaten and emotionally traumatize the child to extort her submission to the TB skin test; (EXHIBIT “B” Letters of Oct 6 and 10.)
    3. performed willful and grossly negligent violations of school policy pertaining to faculty member Garrett Uemura’s threat that Alena would receive a failing grade, when she had previously earned an “A” in this class, without providing opportunity for her to make up intentionally delayed homework assignment;(See EXHIBITS “A” and “B”.) 
    4. falsely claimed to abide by school administration policy requiring equal educational attention be given to two-sided “controversial” subjects (such as “military recruiting” and “tuberculosis skin testing”). Dircks denied Defendant’s volunteered educational services and requested in-service training and assembly presentations offered by Defendant and requested by faculty member(s).  
    5. willfully neglected to publish, or have published, a rebuttal to the false, misleading (i.e., heavily biased) propaganda published in the school’s newspaper further stigmatizing the child causing her to be harassed by students. (See EXHIBIT “C”, The Viking News, September 25, 2006, seriously stigmatizing the quarantined child.
    6. jeopardized the child’s reintegration into the Hilo High School community due to the aforementioned torts affecting the child’s morale and undermining her desire to attend Hilo High School causing irreversible psychosocial and academic harm to Alena; and
    7. On Nov. 13, 2006, Principal Dircks fraudulently misrepresented this child’s “truancy” to this Honorable Court to instigate this frivolous and malicious abuse of process. (This fact is evidenced by this Court’s notice of “COMMANDED” appearance by Defendant and child on Monday, Dec. 18, 2006; whereas Black’s Law Dictionary defines “truancy” as “The act or state of shirking responsibility; esp., willful and unjustified failure to attend school by one who is required to attend.”) Dircks is/was acutely aware of this child’s burning desire to attend school; and her justifiable “failure to attend” as he, the school’s principal, illegally instigated and administered Alena Horowitz’s quarantine in the first place, and neglected to cease ongoing harassments.
  1. In administering this arguably criminal quarantine of Alena Horowitz, Dircks and other state officials have consistently justified their damaging actions by the Nuremberg Defense and ignorance of applicable state statutes.

 

  1. The Nuremberg Defense was claimed in two previous cases involving Defendant and child that were brought against the State of Hawaii in 2004 and 2006, neither of which received hearings on their merits. Thus, judicial determinations ex aequo et bono failed to occur. (Civ. No. 06-1-0296; and Civ. No. 04-00645 DAE-KSC)

 

  1. As evidenced by a careful reading of the aforementioned violated state statutes, additionally from the legal definition of “truancy,” facts cited in paragraph 7(a-f), and the letter of 10/31/06 sent to Defendant by child’s counselor, Phil Geraci, (EXHIBIT “D”) all record this malicious abuse of process is currently being waged to extort Defendant’s signature on the State’s home schooling declaration Form 4140.
  1. By signing this Form 4140 Defendant would certify his acceptance of conditions binding himself and child to submit to the whims, wishes, biases, illegalities, negligence, and academic reviews of Principal Robert Dircks who has consistently:

 

    1. demonstrated bad faith and bad will against Defendant and child,
    2. instigated and administered frauds and this malicious abuse of process,
    3. seriously challenged this child’s psycho-emotional well being, degraded her peer-group social status, and jeopardized her general well-being,
    4. repeatedly harassed Defendant and child,
    5. conspired to threaten child and coerce her violation of religious principles and Bibilical blood hygiene laws,
    6. violated Defendant’s right to life, liberty, and the pursuit of happiness through public education;
    7. conspired to inflict physical injury upon the child justified by Nuremberg Defense, symptomatic of institutionalized bias, negligence, fraud, and false and dangerous condition of mind,
    8. administered conditional assaults damaging to the child, Defendant and their family (i.e., give up your religious convictions to gain access to school and a social life in Hawaii, and/or submit to blood-intoxications or else suffer socially, athletically, emotionally, and academically.)
  1. Form 4140 openly threatens Defendants by stating, “High school principals . . . are reminded that, per Chapter 12 §8-12-20, ‘No course credits (Carnegie units) are granted for time spent being home schooled.’” This is perceived as additional evidence of willful damage to the academic standing of child knowingly administered by Dircks.

 

15. As a direct and proximate result of the aforementioned facts, Alena Horowitz and her family has suffered and continues to suffer immediate and irreparable injury, loss, or damage from statutory violations prohibiting her access to high school classrooms, athletic participation, and constitutional rights to education, socialization, and extracurricular activities well known to positively influence the psycho-social, emotional, and physical well being and healthy development of children. Facts evidencing immediate and irreparable injury, loss, or damage include: 
          a) Alena Horowitz is being wrongfully excluded from school classes and extracurricular activities by decree of ignorant and abusive state agents.
          b) The right to public education and bona fide religious beliefs of Defendant and child are currently being violated, and unless or until injunctive relief is granted, these violations will continue.
          c) Defendant and child are being subjected to harassment, stigmatization, and radicalization due to the actions of Dircks and other State agents as evidenced by the filing of this frivolous and fraudulent complaint before this Honorable Court. 
          d) The Defendant has a mounting burden of taxation without representation of his and his child’s rights to access public schools funded by his tax dollars.
          e) Defendant has paid thousands of dollars in alternative education expenses for quarantined child, and thousands more on related legal fees to perform ex aequo et bono.  

          f) Forced signing of Form 4140 and subsequent home-schooling does not relieve the burdens, irreparable injuries, losses, and/or damages to child and her parents from daily mounting deprivation of child’s unusually high need for socialization and academic stimulation. It is the expressed opinion of both Defendant and child’s counselor, Phil Geraci, that Alena’s immediate return to school is in her best interest.

          g) Subjecting Defendant and child to forced home-schooling does not relieve the burdens, irreparable injuries, losses, and/or damages to these parents who are responsible for this unusually gifted child’s academic advancement since professionally-directed daily work assignments and credentialed teachers are preferred by most parents, including Alena’s. This burdening condition is largely due to normal, reasonable, and customary socioeconomic conditions, financial limitations, and time constraints on working parents in modern America.

          h) Subjecting Alena to forced home-schooling with less academic opportunity, less control in life, and more restricted physical fitness programming creates the burden of sedentary living increasing the risk of obesity, diabetes, and heart disease according to peer reviewed science. (See Exhibit “E”.) This generally neglected risk and stress presents additional threats of irreparable injuries, losses, and/or damages to this child and her family.

          h) State’s forced quarantine subjects Alena Horowitz to psychological and emotional distress with immediate and potentially irreparable long term injuries, losses, and damages such as damages to self-esteem, locus-of-control, and faith and confidence in authority figures and officials operating arbitrarily, capriciously, and illegally in violation of state and federal laws.

 

  1.  This extortion is a gross injustice advanced by “fraud, mistake, [and] condition of mind” of school administrator(s) (and culpable health officials) as per HRCP Rule 9(b) in “Pleading [of] Special Matters.” Condition of mind, including ignorance of the law, is no excuse for misrepresenting and violating the aforementioned statutes.
  1. The Defendant holds bona fide religious beliefs and child’s family are members or adherents of established churches whose religious beliefs and tenets are not in accordance with requirements for the Tb skin test medical examination / immunization procedures.

 

  1. In addition to Robert Dirck’s aforementioned harassments, and violations to Defendant and child’s civil rights and religious freedoms, the Defendant asserts with expertise the practice of TB skin testing of low risk children, including Alena Horowitz, is a medical malpractice involving gross professional negligence in breaching national public health policy standards discouraging TB skin testing of low-to-no risk children.
  1. The Hawai’i Revised Statutes, as amended, provide variously for the right to religious exemption to “medical examinations,” “immunizations,” and “TB Clearance” as follows:

 

     a)  HRS §321-11(22) provides for allowance of religious exemption to medical examinations and immunizations such that “[n]o child shall be subjected to medical examination ... or immunization, whose parent or guardian objects in writing thereto on grounds that the requirements are not in accordance with the religious tenets of an established church of which the parent or guardian is a member or adherent...” [EXHIBIT “F”];

     b)  HRS §302A-1156 provides generally for allowance of religious exemption to immunization “[i]f any parent, custodian, guardian, or any other person in loco parentis to a child objects to immunization in writing on grounds that the immunization conflicts with that person’s bona fide religious tenets and practices.” [EXHIBIT “F”];

     c)  HRS §302A-1158 provides additional support for the fact that a religious exemption exists to the Tb skin test as an indigent “child immunized or tested for tuberculosis, and who have not been exempted under section 302A-1156” is afforded immunization and testing by public funds [EXHIBIT “F”];

     d)  HRS §325-34 additionally provides for allowance of religious exemption to immunization with language mirroring that of HRS §321-11(22) [EXHIBIT “F”];

     e)  HAR §157-5(b) of the Department of Health Administrative Rules provides allowance for religious exemption from immunizations.  [EXHIBIT “F”]

f)   Pertaining to quarantines administered for public health threatened by TB outbreak or other infectious disease epidemics, HRS §321-1(d) compels Hawaii’s health department directors to make public the specific “evidence of a health hazard within seventy-two hours of the action taken or rescind the action. The director shall make public the findings” which caused the quarantine including the specific statistics legitimizing cause of action. (Emphasis added.)

 

20. Defendant had requested this required epidemiological information from State health and education officials but they refused, on several occasions, to provide anything in writing in response to Defendant’s reasonable and responsible request.

  1.  This procedural reporting, and gross negligence from the lack thereof, is also required under HRS §321-1(g) that states:

“The department, during the prevalence of any severe pestilence or epidemic, shall publish a weekly report of the public health.”

22. Since this “weekly report” has never been published by the
Department of Health, this evidences either:
 
       a. there has never been any severe TB epidemic, and all TB testing mandates for low risk persons have been fraudulent, or
       b. the department’s delegated officials have been grossly negligent.

  1. Since nearly four months have passed since this illegal tort of quarantine against the Defendant’s child has occurred without the director’s required “seventy-two hours” response as per §321-1(d), the State is in breach of this statute and irresponsible officials should be held accountable and even subject to criminal prosecution as per the following statutes:
      1. §321-18 Penalty. Except when another penalty is provided, every person who violates any rule of the [health] department, after the same has been adopted, as provided in section 321-10, shall be guilty of a misdemeanor. [PC 1869, c 59, §8, RI. 1925, §914; RL 1935 §906 . . . HRS §321-18; am L 1983, c 100, §3].

 

      1. §325-14 Penalty. Any person violating this chapter, or any rule or regulation of the department of health relating thereto, shall be deemed guilty of a misdemeanor. Except as herein otherwise provided the punishment therefore shall be the same as provided by section 321-18. [L 1911, c 118, §16; RL 1925, §953; RL 1935, §1113; am L 1943, c 43, §5(b)(2); RL 1945, §2342; RL 1955, §49-14; HRS §325-14]
      1. §325-37 Fraud; willful misrepresentation; failure to comply; penalties. Any person who by fraud or willful misrepresentation circumvents or defeats or attempts to circumvent or defeat any purpose or provision of any of sections 325-32 to 325-34 [religious exemptions] or who, required by any provision of section 325-32, to be vaccinated or immunized, fails to be so vaccinated or immunized shall be fined not more than $25 or imprisoned not more than thirty days, or both. [L 1945, c 171, pt of §1; am L 1947, c 165, §1(d); RL 1955, §49-37; HRS §325-37; am L 1974, c 6, §2(4)](Emphasis added).

 

      1. §321-10 Rules, adoption, effect. All rules and regulations made by the department of health shall be made in conformity with chapter 91. They shall have the force and effect of law. [PC 1869, c 59, §7; RL 1925, §913; RL 1935, §905; am L 1939, c 136, §1; RL 1945, §2012; am L 1945, c 116, §1(a); RL 1955, §46-12; am L Sp 1959 2d, c 1, §19; am L 1965, c 96, §28; HRS §321-10]

 

24. Plaintiffs actions as detailed above have been arbitrary and capricious.  State officials have failed to provide any reasoned analysis for their deprivation of minor child’s fundamental rights, notwithstanding the fact that this information has been repeatedly requested by Defendant.

25. It should be known that every other health department engaged in TB control throughout the U.S. with equal or even higher incidence of TB provides religious exemptions for TB skin testing for those who demand them. This is precisely as is done with all vaccinations based on honored separations of church and state.

26. Thus, the aforementioned facts strongly evidence those responsible for instigating this malicious abuse of process in claiming Alena Horowitz’s “truancy,” particularly Robert Dircks, have harmed all students and families with children at Hilo High School who, for religious reasons, would elect to exempt from TB skin testing, but were fraudulently coerced into submitting to the test.

27. By so doing, Principal Dircks and other responsible agents for the State have violated the faith and trust granted them by the public and legislature by:

a. misapplying statutes and definitions of law to carry out illegal, apparently criminal, medical malpractices and public deceptions that;
b) set a dangerous national precedent challenging fundamental human rights constitutionally preserved and broadly cherished.

28. In light of the abundantly clear language of HRS §321-11 which provides for religious exemption from “medical examination” and “immunization,” even if we were to falsely assume an imminent danger of TB epidemic as required by law to suspend otherwise required religious exemptions, the State would need to:

a) publicly account for their allegations of imminent danger with intelligence and comparative statistics as per HRS §321-1(d)(g) which they have failed to do in Alena’s quarantine; and

b) clarify for public knowledge what compelling reason(s) exists for asserting the TB test is neither a type of “medical examination” and/or “immunization” contrary to definitions of these and related terms in Administrative Rules. 

29. State officials and attorneys general argue that TB skin testing is not a “medical examination,” or an “immunization,” yet they provide no alternative descriptors or definitions for this more than 100-year-old antiquated practice. “TB Clearance” is not defined legislatively or in the Administrative Rules. This vagueness of 302A statutes, however, is insufficient to justify Plaintiff’s actions damaging to Defendant and other Hawaii citizens.

30. A reasonable person would alternatively interpret the language of the statutes covering TB skin testing as an “immunization” as defined in HAR §157-2 “Definitions.” Herein, the word is defined as: “the process of administering a specific substance to promote an immune response, including antibody production.” This definition precisely describes the purpose and/or result of TB skin testing.

Contrary to the officially promulgated misconception that “immunization” equals “vaccination,” official definitions cite “immunization” as different from an “immunizing agent” used for “vaccination.” An “immunizing agent” is defined as “a vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease.” The State’s actions and public proclamations obfuscate these clear definitions and critical distinctions proving the similarity of the administrative process of “immunization” and “TB Clearance.”

31. Substantial science in peer-reviewed journals evidences the fact that the TB skin testing routinely causes system-wide antibody production and an enduring immune system response. Therefore, there are no reasonable causes, other than fraud and mistaken condition of mind, for health officials to consistently claim that for the purpose of denying religious exemptions, “TB Clearance” is different from “immunization” and not a medical examination affected by antibody response and cell mediated immunity.
 

32.  Notwithstanding the fact that Defendant submitted documentation of religious exemption in accordance with the aforementioned provisions of the Hawai’i Revised Statutes and administrative regulations, and despite the provision of medical evidence (including two medical examinations proclaiming Alena, a Varsity cross-country team runner, to be “TB free,” Robert Dircks et. al. did subject Alena to forced quarantine from Hilo High School.

33.  The Constitution of the State of Hawai’i provides Defendant with a number of fundamental rights as follows:
     a)  Preamble; provides the “right to control our destiny, to nurture the integrity of our people and culture and to preserve the quality of life that we desire.”
     b)  Article I, Bill of Rights, Section 2, provides rights of individuals, including liberty interests;
     c)  Article I, Bill of Rights, Section 4 provides for freedom of religion;
     d)  Article I, Bill of Rights, Section 5 provides for due process and equal protection of the laws and states in relevant part that “[n]o person shall be deprived of ... liberty ... without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of ... religion ... or ancestry.”
     e)  Article I, Bill of Rights, Section 7, provides “[t]he right of the people to be secure in their persons ... against unreasonable searches ... and invasions of privacy ...”.

34.  The actions or negligence of Robert Dircks have had the effect of violating the rights of the Defendant and child aforementioned as guaranteed by the Constitution of the State of Hawai’i.

35.  The United States Constitution, Amendment I, IV, V, IX and XIV, as made applicable to the State of Hawai’i and the citizens therein, as well as the Right to Privacy in the Constitution of the State of Hawai’i provides Defendant and child with certain fundamental rights to their religious beliefs as well as guaranteed privacy and liberty interests which can only be infringed where there is a compelling state interest and the least restrictive means utilized to accomplish the ends. 

36.  The actions or negligence of Plaintiff have had the effect of violating the rights aforementioned as guaranteed by the Constitution of the United States of America and as made applicable to the State of Hawai’i and the citizens herein by the U.S. Const. Amendment XIV. 

37.  The State may have a compelling State interest in promoting public health, though no compelling interests exist for declaring a TB epidemic/emergency/imminent danger, or to deny religious exemption to Tb skin test. Under §302A statutes such declarations are required to suspend religious freedom to exempt from the test. Nor has there been least restrictive means employed to accomplish state interests.

38.  The Department of Health is required to administer the immunization and tuberculin test requirements by statutory mandate pursuant to HRS §302A-1163 which therein refers to include administration of the religious exemption found at HRS §302A-1156.

39.  State officials, including Robert Dircks, have refused to recognize and account administratively for the religious exemption that is guaranteed to Defendant and child.

40.  As a result of the actions and omissions of State agents, Defendant’s statutory and constitutional rights to religious exemption for Alena Horowitz from the immunization/examination laws of general applicability have been violated.

41.  Defendant and child have thusly been damaged, and caused to suffer financial losses, mental anguish, social and emotional distress, and academic deprivation. This harm, plus other burdens, have been continuing and mounting since child was forcibly quarantined with expulsion from school.
 
42.  Plaintiff continues to violate the fundamental rights of Defendants based on arbitrary and capricious actions, and Defendant’s child continues to be increasingly and irreversibly harmed.

  1. Defendant hereby files, simultaneously with this Answer to Complaint, a Motion for Preliminary Injunction and Declaratory Relief; a Memorandum in Support of Motion, along with declarations of Leonard G. Horowitz and Jacqueline G. Lindenbach, child’s parents, and Declaration of Alena Netia Horowitz.

 

COUNT ONE
INJUNCTIVE RELIEF AGAINST DEFENDANTS

 


44.  Plaintiff re-alleges the allegations contained in paragraphs 1 through 43 above and incorporates the same by reference.

45.  An actual dispute exists between Plaintiff and Defendant concerning matters set forth above.

46.  By reason of said dispute, Defendant and child is entitled to a preliminary injunction enjoining STATE OF HAWAII, DEPARTMENT OF HEALTH, and STATE OF HAWAII, DEPARTMENT OF EDUCATION, and each of them, and their agents, servants, to desist and refrain from denying readmission of Alena N. Horowitz to Hilo High School, or other public or private high schools best suited to the child’s needs, classrooms, and extracurricular activities during the pendency of this action.

47.  The Defendant and child pray that following a final hearing, this Honorable Family Court will rule that the STATE OF HAWAII, DEPARTMENT OF EDUCATION, and STATE OF HAWAII, DEPARTMENT OF HEALTH, and Principal Robert Dircks, and each of them, and their agents, servants, and employees shall desist and refrain from denying religious freedoms, and TB skin testing wavers to Alena Horowitz and other families holding bona fide religious convictions, to prevent further damage to said children and families in Hawaii.

48.  As a direct and proximate result of Plaintiff’s violations, Defendant and child has suffered and continues to suffer immediate and irreparable injury, loss, or damage from statutory violations prohibiting school access, usual attendance, and rights to education, socialization, and extracurricular activities well known to positively influence the psycho-social, emotional, and physical well being and healthy development of children. Facts evidencing immediate and irreparable injury, loss, or damage have been cited in paragraph 15 above.



49.  These violations constitute immediate and irreparable injury, loss or damage to Defendant, child and family, with an additional said injury, loss or damage accruing each day these violations continue.   

50.  It appears that there is an inadequate remedy at law as monetary damages would not suffice to cover the injury and loss or damage to Defendant as the education and extracurricular opportunities to Alena Horowitz would be forever lost and immeasurable by monetary damages.  It is questionable as to the extent monetary damages would be available.

51.  Defendant has a strong likelihood of success based on the merits.

52.  It is in the best interests of justice that injunctive relief be administered such that the status quo ante the violations of rights be preserved subject to a full hearing on the matter, that is, to allow Alena Horowitz, and all Hawaiian children of parents with religious convictions to exercise their right to exempt from vaccinations and TB skin testing to attend school and extracurricular activities; and that a permanent injunction be issued upon a full hearing of this matter.

 

COUNT TWO

(GOOD FAITH AND FAIR DEALING AGAINST DOE, DOH and AG)

 

53.  Defendant re-alleges the allegations contained in paragraphs 1 through 52 above and incorporates the same by reference.


54.  Defendant has in good faith attempted to remedy this conflict and has exhausted administrative remedies as a circuitous relationship between the Department of Education, Department of Health, and the Office of the Attorney General appears as each is taking recommendation from the other to reach the same unlawful result.

  1. As an American citizen, Defendant has a constitutional duty to resist with protest unlawful and subversive government controls breaching constitutional freedoms and civil rights; and owes a duty of good faith and fair dealing to his community, the citizens of the State of Hawai’i at large, and to their children specifically in these important matters.

 

  1. Despite numerous efforts to inform school and health officials of the laws that exists in the State of Hawaii requiring recognition of, and respect for, the religious exemption rights of Defendant, Plaintiff continues to violate these and other rights in a manner inconsistent with good faith and fair dealing.
  1. DEPARTMENT OF EDUCATION and DEPARTMENT OF HEALTH agents, including Robert Dircks, have grossly neglected official duties to publish weekly tuberculosis reports substantiating their claim of “imminent danger of epidemic or serious outbreak” of TB between Sept. 1, 2006 and the present, to responsibly justify their forced quarantine of Defendant’s child; and further in violation of State DEPARTMENT OF HEALTH law §321-1 (c), (d) and (g) have failed to “rescind the action” of forced quarantine “within seventy-two hours of the action taken . . .” in responsible recognition that no such “imminent danger” or “serious outbreak” exists, or has existed.(EXHIBIT “F”)   

 

COUNT THREE

(BREACH OF DUTIES AGAINST DEPARTMENT OF EDUCATION)

 

59.  Defendant re-alleges the allegations contained in paragraphs 1 through 58 above and incorporates the same by reference.

60.  DEPARTMENT OF EDUCATION, and its agents including public and private schools, teachers, and administrators, has a duty under HRS §321-11(22), HRS §302A-1156, HRS §325-34, and HAR §157-5(b), to honor religious exemptions to TB skin testing, and other applicable laws, and to act reasonably in exercising due care in performing responsibilities to facilitate admission of Alena Horowitz to suitable chosen schools. [Exhibit “F”]


61.  As per their Declarations, during 2006, Defendant and child submitted reasonable evidence including medical records that Alena Horowitz was at low-to-no risk for TB and is “TB free;” yet at the direction of the Department of Health and other state agents DEPARTMENT OF EDUCATION and its officials did quarantine this exceptional athlete and honors student.

62.  Notwithstanding the Defendant’s demand for religious exemption from TB skin testing, and documents filed with the school exercising religious exemption from vaccinations for Alena, Robert Dircks violated his duty to perform lawfully as an administrator with respect to the Defendant’s religious exemption causing hardship to child and family, and damages as determined by this Honorable Court.

COUNT FOUR
VIOLATION OF CIVIL RIGHTS AND SUBSTANTIVE DUE PROCESS

63. Defendant re-alleges the allegations contained in paragraphs 1 through 62 above and incorporates the same by reference.

64.  Defendant has a number of statutory and Constitutional (state and federal) civil rights that have been violated by Plaintiff, including but not limited to rights of religious freedom, speech and association, education, equal protection, liberty interests, privacy including essential bodily integrity, rights preventing unreasonable searches, seizures and invasions of privacy. 

65.  Defendant has a fundamental right to have honored required religious exemption from Tb skin testing; laws pursuant HRS §302A-1156, HRS §321-11(22), HRS §325-34, HAR §157-5(b), the Constitution of the State of Hawaii and the Constitution of the United States of America. 

66.  Plaintiff violated the civil rights, including but not limited to rights to religious freedom, privacy and liberty interests, as aforementioned, and the fundamental substantive due process rights afforded and due Defendant.

67.  Damages to be ascertained by this Honorable Court.

68.  Declaratory relief indicating that the Tb skin test provisions of the law of the State of Hawai’i are subject to the religious exemption rights of Defendant as expressed on independent and adequate state law basis as well as grounded in the fundamental protections of the United States Constitution.

  1. Other relief as fashioned by this Honorable Court.

 

PRAYER FOR RELIEF


     By reason of the premises, Defendant and child have been injured in amounts which are presently unascertainable but which shall be shown at trial.
WHEREFORE, Plaintiffs pray as follows:
     That this Honorable Court set this matter for a hearing as soon as possible, and at the Conclusion thereof, a preliminary injunction be issued enjoining, State of Hawaii, Department of Health, State of Hawaii Department of Education, all schools throughout the state, and each of them, and their agents, servants, and employees to desist and refrain from denying admission of Alena Horowitz, and other law abiding citizens with bona fide religious convictions and medical examination exemption rights, to schools and extracurricular activities during the pendency of this action.
     That following a final hearing, State of Hawaii, DEPARTMENT OF HEALTH, State of Hawaii DEPARTMENT OF EDUCATION, and all schools throughout the state, and each of them, and their agents, servants, and employees shall desist and refrain from denying admission of Alena Horowitz, and all children at low-to-no risk of tuberculosis, to schools, classrooms and extracurricular activities.
     That this Honorable Court grant a Preliminary Injunction Order and ultimately a Permanent Injunction Order and Declaratory Relief in order to prevent further irreversible and irreparable harm to Defendant and child.
     That the Defendant be awarded general, special, and consequential damages in an amount to be proven at trial.
     That the Defendant be awarded punitive damages in an amount to be proven at trial.
     That the Defendant be awarded costs, expenses, attorneys’ fees, and child’s extraordinary educational expenses incurred in this matter.
     That the Defendant be awarded such other and further relief as the Court deems just and proper in the premises.

DATED: Hilo, Hawaii _____________________________

 

________________________
Leonard G. Horowitz
Defendant, pro se

 

 

Leonard G. Horowitz
13-3775 Kalapana Highway
Pahoa, HI 96778
Telephone: 808-965-2112
Facsimile: 808-965-2002

Attorney for Defendant, pro se

 

IN THE FAMILY COURT OF THE THIRD CIRCUIT

STATE OF HAWAII

STATE OF HAWAII

              Plaintiff

          vs.

 

LEONARD G. HOROWITZ

              Defendant

                           

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Family Case-J No. 0075006
(Hilo)
Truancy (School Non-attendance) filed 11/06/06

 

MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND DECLARATORY RELIEF; MEMORANDUM IN SUPPORT OF MOTION; NOTICE OF MOTION AND CERTIFICATE OF SERVICE; DECLARATION OF LEONARD G. HOROWITZ; DECLARATION OF ALENA N. HOROWITZ; DECLARATION OF JACQUELINE G. LINDENBACH; NOTICE OF DECLARATIONS AND CERTIFICATE OF SERVICE

Hearing:
Date: Monday, Dec. 18, 2006
Time: 2:00 p.m.
Judge: Ben H. Gaddis   

 

MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND DECLARATORY RELIEF

COMES NOW Defendant Leonard G. Horowitz (hereinafter “Defendant”),  on behalf of ALENA N. HOROWITZ, a minor child, born on June 1, 1992, and LEONARD G. HOROWITZ, Guardian Ad Litem of the minor child ALENA N. HOROWITZ, of Hilo and Pahoa, Hawai’i, by and through pro se representation of Leonard G. Horowitz, of Hilo and Pahoa, Hawai’i, and hereby moves this Honorable Court for an order granting a temporary restraining order and preliminary injunction during the pendency of this action prohibiting STATE OF HAWAII, DEPARTMENT OF EDUCATION and DEPARTMENT OF HEALTH, and Principal Robert Dircks, in their official capacities and as individual persons; their servants, agents, employees, and those working in concert with them, to desist and refrain from denying admission to Alena N. Horowitz to Hilo High School classroom and extracurricular activities.
This Motion is made pursuant to Rule 65 of the Hawai’i Rules of Civil Procedure, Hawaii Revised Statutes §604-10.5, §711-1106, §711-1106.4 and §711-1106.5, §661-1 and §661-12, §91-7, §603-23, the laws of the United States of America and the State of Hawai’i, and is supported by the Memorandum in Support of Motion, Declaration of Leonard G. Horowitz, Declaration of Jacqueline G. Lindenbach, Declaration of Alena N. Horowitz, the records and files herein and argument of counsel.
DATED: Hilo, Hawaii,                  .

 

                                      
                   LEONARD G. HOROWITZ
                   Plaintiff pro se