Memorandum on Motion for Temporary Restraining Order in 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

                           

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

 

MEMORANDUM IN SUPPORT OF MOTION; NOTICE OF MOTION AND CERTIFICATE OF SERVICE; DECLARATION OF LEONARD G. HOROWITZ; DECLARATION OF JACQUELINE G. LINDENBACH; DECLARATION OF ALENA N. HOROWITZ; NOTICE OF DECLARATIONS OF LEONARD G. HOROWITZ, JACQUELINE G. LINDENBACH, AND ALENA N. HOROWITZ; CERTIFICATE OF SERVICE

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

 

 

MEMORANDUM IN SUPPORT OF MOTION

  1. INTRODUCTION 

 

On or about September 1, 2006 Plaintiff Alena N. Horowitz was forced to leave (i.e., expelled) from Hilo High School by order of State officials for failing to have a generally required TB skin test despite her bona fide religious exemption and conviction, established church affiliation, and father’s filing of a written religious exemption form with school administrators covering “immunization” and “TB skin testing.”

This memorandum covers seven primary areas concerning this case: 1) Constitutional entitlements, 2) Applicable Constitutional Provisions of the State of Hawai’i 3) Local religious exemption statutes, 4) Plaintiffs’ civil torts, 5) Plaintiffs’ arbitrary and capricious actions with special focus on vagueness of law, 6) Defendant child’s entitlement to declarative relief, 7) Legal basis for temporary restraining order and injunctive relief, and 8) Damages and awards.

 

  1. U.S. Constitutional Entitlements

A) Now Defendants’ fundamental rights have been violated. The terms of the Constitution of the State of Hawai’i derives its fundamental standing from the Constitution of the United States of America with adaptation made on behalf of the people of the State of Hawai’i. The following provisions of the U.S. Constitution are applicable to Defendant’s case and the rights expressed therein have been, and continue to be, violated by the actions or want of action of the Plaintiff:
i. Amendment I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. (Emphasis added)

ii. Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added)
 
iii. Amendment V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis added)

iv. Amendment IX:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
 
v. Amendment X:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.      
VI. Amendment XIV:
     Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.(Emphasis added)

 

B) The aforementioned fundamental rights are being violated by the Plaintiffs’ refusal to allow minor child, Alena N. Horowitz, attendance at Hilo High School classes, social events, and extracurricular events.

C) It is clear that a number of fundamental, guaranteed, and protected rights are being violated as Plaintiffs have refused to recognize, as required by clear State provisions, infra, the legal religious exemption from the Tb skin test which by legal definitions and immunological actions is akin to an “immunization” and/or “medical-examination” requirements.
 
2. Applicable Constitutional Provisions of the State of Hawai’i
                                          
          Plaintiff’s actions or want of action implicate and violate the following provisions of the Constitution of the State of Hawai’i:
A. CONSTITUTION OF THE STATE OF HAWAI’I

  1. Preamble, in applicable part,

 

          We reserve 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.  We reaffirm our belief in a government of the people, by the people and for the people, and with an understanding and compassionate heart toward all the peoples of the earth, do hereby ordain and establish this constitution for the State of Hawaii. [Am Const Con 1978 and election Nov 7, 1978].

     ii. Article I, BILL OF RIGHTS, provides: 

 

          RIGHTS OF INDIVIDUALS

          Section 2. All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities. [Am Const Con 1978 and election Nov 7, 1978]

 

          FREEDOM OF RELIGION, SPEECH, PRESS, ASSEMBLY AND PETITION

          Section 4. No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. [Ren and am Const Con 1978 and election Nov 7, 1978]

    

     DUE PROCESS AND EQUAL PROTECTION

Section 5. No person shall be deprived of life, liberty or property 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 race, religion, sex or ancestry. [Ren and am Const Con 1978 and election Nov 7, 1978]

     RIGHT TO PRIVACY

     Section 6. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right. [Add Const Con 1978 and election Nov 7, 1978]

     SEARCHES, SEIZURES AND INVASION OF PRIVACY

     Section 7. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978].

     RIGHTS OF CITIZENS

     Section 8. No citizen shall be disfranchised, or deprived of any of the rights or privileges secured to other citizens, unless by the law of the land. [Ren Const Con 1978 and election Nov 7, 1978].

Art. X-Sec.1  PUBLIC EDUCATION
     Section 1.  The State shall provide for the establishment, support and control of a statewide system of public schools free from sectarian control, a state university, public libraries and such other educational institutions as may be deemed desirable including physical facilities therefor.  There shall be no discrimination in public educational institutions because of race, religion, sex or ancestry; nor shall public funds be appropriated for the support or benefit of any sectarian or private educational institution. [Ren and am Const Con 1978 and election Nov 7, 1978]. (Emphasis added).

 

3) Religious Exemption Entitlements

 

  1. There is absolute certainty that legislative intent underlying, and verbiage within, State of Hawai’i statutory mandate compels health officials to honor religious exemptions from vaccinations and TB skin testing immunizing examinations.  These statutes include:

i. Hawaii Revised Statutes, Title 19 Department of Health Chapter 321 Section 11 Subjects of health rules, generally, states:  
"Medical examination, vaccination, revaccination, and immunization of school children.  No child shall be subjected to medical examination, vaccination, revaccination, 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, but no objection shall be recognized when, in the opinion of the department, there is danger of an epidemic from any communicable disease;" [HRS §321-11 (2005 Cumulative Supplement)] (Emphasis added).
    
ii. Hawaii Revised Statutes, TITLE 18. EDUCATION Chapter 302A, as amended, provides in relevant part:
[§302A-1154] Immunization upon entering school; tuberculosis clearance. (a) No child shall attend any school in the State unless the child presents to the appropriate school official documentation satisfactory to the department of health that the child has received immunizations against communicable diseases as required by the department of health.

(b) No child shall be admitted to attend any school for the first time in the State unless the child presents to the appropriate school official documentation satisfactory to the department of health that the child has been examined and tested according to the rules of the department, and is free from tuberculosis in a communicable form. [L 1996, c 89, pt of §2; am L 1998, c 60, §1; am L 2000, c 109, §1]

The words “immunization” and phrase “tuberculosis clearance” as above separated by a semi-colon, “;”, within the same sentence structure of §302A-1154, make these two clauses of one compound sentence unified as a whole in the title heading indicating the legislative intent of linking both together, with both affected by HRS [§302A-1156] Exemptions as follows:
[§302A-1156] Exemptions. A child may be exempted from the required immunizations:
(1) If a licensed physician certifies that the physical condition of the child is such that immunizations would endanger the child's life or health; or
(2) If any parent, custodian, guardian, or any other person in loco parentis to a child objects to immunization in writing on the grounds that the immunization conflicts with that person's bona fide religious tenets and practices. Upon showing the appropriate school official satisfactory evidence of the exemption, no certificate or other evidence of immunization shall be required for entry into school. [L 1996, c 89, pt of §2] (Emphasis added)

     The clear and reasoned statutory intent of the HRS §302A 1154-1157 series of laws pertaining to “immunization,” “TB clearance,” and religious “exemption” was to “make the education laws easier to understand,” and to “recodify the education statutes to create a state education policy framework that is less compliance and regulatory oriented and more supportive of schools becoming student focused.” (House Journal-Standing Committee Reports SCRep. 1438-96 Education on S.B. No. 2446; Senate Journal –Standing Committee Reports SCRep. 1966 Education on S.B. No. 2446).
     Oddly and ironically, the opposite result has been established by the Department of Health since these laws were enacted as will be further discussed below. (Emphasis added in quotes).

iii. Hawaii Revised Statutes, TITLE 19. HEALTH Chapter 325 Infectious And Communicable Diseases, as amended, provides:
  [§325-34. Exemptions.] ... “No person shall be subjected to vaccination, revaccination or immunization, who shall in writing object thereto on the grounds that the requirements are not in accordance with the religious tenets of an established church of which the person is a member or adherent, or, if the person is a minor or under guardianship, whose parent or guardian shall in writing object thereto on such grounds, but no objection shall be recognized when, in the opinion of the director of health, there is danger of an epidemic from any communicable disease.” [L 1945, c 171, pt of §1; am L 1947, c 165, §1(b); RL 1955, §49-34; am L Sp 1959 2d, c 1, §19; am L 1967, c 23, §4; HRS §325-34; am L 1974, c 6, §2(2); gen ch 1985] (Emphasis added)

B. Hawaii Administrative Rules, Title 11, Department of Health Chapter 157, “Examination and Immunization” provides definition and guidance to the application of relevant statutes. It appears therein that “immunization” by definition includes a TB skin test and that said immunizations are subject to religious exemptions. Here, specific exemption provisions exist to the general mandates found in the Chapter. It reads:
§11-157-2 Definitions. . . .
“Immunization” means the process of administering a specific substance to promote an immune response, including antibody production.

“Immunizing agent” means a vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease.

It is important to recognize the distinctions between the aforementioned definitions as they pertain to the exemption statute generally, and the religious allowance specifically in HAR §157-5 as follows:
§11-157-5 Exemptions.
(a) Medical exemptions from the requirements for specific immunizing agents shall be granted upon certification by a physician on the physician’s professional stationery that an immunization is medically contraindicated for a specific period of time.  The original certificate shall be provided to the exempt person or parent or guardian. A copy of the certificate shall be maintained in the student’s school health record. Reports of such certificates shall be submitted to the department by each school.
     (b) A religious exemption shall be granted to a student whose parent, custodian, guardian, or other person in loco parentis certifies that the person’s religious beliefs prohibit the [administrative] practice of immunization. Requests for religious exemptions based on objections to specific immunizing agents will not be granted. Students who have reached the age of majority shall apply on their own behalf. The certification shall be retained in the student’s health record. Reports of such exemptions shall be submitted to the department by each school. [Emphasis added.]
[Thus, it must be recognized that exclusive objection and exemption to the administration of TB skin testing with toxoid—Mantoux Tubersol—by religious persons is not recognized since exemption election is acknowledged to be exclusively provided to those exclusively holding the conviction of religious blood purity including the spiritual implications of blood contamination, blood being a “sacred fluid” to religious persons; effectively leaving the general vaccination/immunization statutes’ protection of religious freedom as the only option for persons with such boni fide religious convictions.]
            (c) If at any time, the director determines that there is the danger or presence of an outbreak or epidemic from any of the communicable diseases for which immunization is required under this chapter, the exemption from immunization against such disease shall not be recognized and inadequately immunized students shall be excluded from school until the director has determined that the presence or danger of the outbreak or epidemic no longer exists. [Eff 11/5/81; am and comp 6/17/93; am and comp 10/23/97; am and comp 8/27/01] (Auth: HRS §302A-1162, 321-9, 321-11(22), 325-13, 325-32) (Imp: HRS §302A-1156, 302A-1157, 321-1, 321-9, 321-11, 325-13, 325-32, 325-34, 325-35) (Emphasis added.)

          The religious exemption found at the above HAR §157-5(b) specifically exempts certifying parties from the “practice of immunization.”  Given the definitions found at §11-157-2, supra, the ‘religious exemption’ afforded by HAR §157-5(b) is broader than the ‘medical exemption’ found in HAR §157-5(a).  The religious exemption contemplates the practice of immunization techniques, and Defendant’s exclusion therefrom, while the medical exemption refers only to the more limited “immunizing agents.” 

The broader language of HAR §157-5(b) covers the Tb skin test as “immunization” is defined in the Definitions section of HAR §157-2 as “the process of administering a specific substance to promote an immune response, including antibody production.”  Whereas, the same set of definitions indicates “immunizing agent” means “a vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease.”  The distinction is clear.
While the Tb skin test is not an “immunizing agent” in that it is not a “vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease”, it is certainly an “immunization” as the specific substance (Tb antigen) is administered by through-the-skin (i.e., parenteral) injection to promote a systemic (i.e., whole body) immune response indicated by the “induration” observed in the Tb positive response.  At a hearing on a preliminary injunction, scientific experts may be called upon to clarify any ambiguities in this regard.
C. In sum, religious exemption to “immunization” is found in HRS §302A-1156, HRS §321-11(22), HRS §325-34 and HAR §11-157-5(b).  Additionally, and unambiguously, religious exemption to TB skin testing as a “medical examination” is clearly provided for in HRS §321-11(22).
Any difficulty with comprehending the statutes is resolved by a straightforward reading and application of the statutes.
4. Plaintiff’s Civil Torts

  1. It appears the Plaintiff has defrauded the Defendants and the public by claiming no religious exemption exists under present conditions alleged be of urgency implying “epidemic” or “outbreak”  risks are high, but without determining and detailing grounds for imminent danger as required by law HRS §321-1(c).  This General and Administrative Provision states:

When it is determined that there is imminent danger of epidemic or serious outbreak of communicable disease, the department may refuse, modify, or limit attendance at any school in the State.

 

  1. Webster’s Dictionary defines the term “Imminent” as “ready to take place,” or “hanging over one’s head” which is not the case with TB case rates in Hawaii nearly stagnant since the inception of these statutes in 1996.  Thus, there is no imminent danger of epidemic, or serious outbreak of TB, that would justify the department’s refusal to limit Defendant’s child’s attendance at schools throughout the State.
  1. Webster’s Dictionary defines Epidemic as “1.: affecting or tending to affect a disproportionately large number of individuals within a population, community, or region at the same time.  2. a: excessively prevalent. . . b.: contagious <contagious laughter>.”
  2. The online resource MedicineNet.com defines Epidemic as

“The occurrence of more cases of a disease than would be expected in a community or region during a given time period. A sudden severe outbreak of a disease such as SARS.”

  1. Outbreak is defined in Webster’s Dictionary as: “1. a: a sudden or violent increase in activity or currency <the outbreak of war> b: a sudden rise in the incidence of a disease <an outbreak of measles> c: a sudden increase in numbers of a harmful organisms, esp. an insect within a particular area <an outbreak of locusts>

 

  1. It is noteworthy that the Administrative Rule book for Hawai’i’s Department of Health defines “outbreak” and “epidemic” precisely the same way. That is:

 “The occurrence in a community or region of an illness clearly in excess of normal expectancy, as determined by the department.”

  1. It is clear that there has been no significant increase in TB case rate fluctuations in Hawaii over the past decade that would reflect an “illness clearly in excess of normal expectancy”
  2. Despite the Department of Health promoting ad odium threatening, allegedly “dangerous” TB “epidemic” statistics, with compelling persuasion graphics published in local newspapers, there is not, nor has there been, any substantial threat of TB “in excess of normal expectancy.”
  3. To put case rates in proper perspective the following table may help:

One case per 100 equals 1% . . . .  . . . . 1/100 = 1%
One case per 1000 equals one tenth of 1%  . 1/1,000 = .1%
One case per 10,000 equals one hundreth of 1% or 1/10,000 = .01%
One case per 100,000 equals one thousandth of 1% or 1/100,000 = .001% S

J. So the TB rate for Hawaii varies normally between 10-15/100,000 or approximately one hundredth to 1.5 hundredth of 1% which is very low as compared with numbers of children testing falsely positive and sustaining injury from prescribed TB antibiotics and chest X-rays known to be a cancer risk.
  This, plus the fact that as much as 30-50% of tests produce false positives, is the main reason federal officials and the AAP experts discourage TST among low risk children and adults.  The cost/benefit and risk/benefit of this practice proves more harm than good comes from this program currently ongoing in Hawaii.

K. EXHIBIT E contains data (See Table 20: “Tuberculosis Cases and Case Rates per 100.000 Population; States, 2004 and 2003”) that shows official statistics issued by the U.S. Government’s Census Bureau showing Hawaii’s TB rate (9.2) is significantly lower than the District of Columbia (14.6).  Even so, EXHIBIT E shows the TB control program in our nation’s capitol follows the American Academy of Pediatrics (AAP) and Centers for Disease Control and Prevention guidelines for Tuberculin Skin Testing in Children. These guidelines state:
 In 1996, the American Academy of Pediatrics (AAP) recommended targeted tuberculin skin testing (TST) of children while discouraging routine TST of children without risk factors for tuberculosis (TB). Recent studies have provided evidence in support of the targeted TST and recommendations that favor risk assessment over universal screening with TST. . . . The challenge for public health and school officials is to develop a screening program that avoids stigmatization of the at-risk group. Until then, pediatric healthcare providers will continue to have a key role in identifying children at risk for latent TB infection by using the AAP-endorsed risk-assessment questionnaire and should screen children with TST only when > 1 risk factor is present. (Source: Reznik M., Ozuah PO. Tuberculin skin testing in children. Emerg infec Dis [serial on the Internet] 2006 May 5; Vol 12, No. 5. Available from: http://www.cdc.gov/incidod/ElD/vol12no05/05-0980.htm (Emphasis added).

  1. It should be noted that Alena Horowitz has no risk factors for TB; has a “TB-free” status certification from her medical doctor (EXHIBIT B); yet has now developed a social stigma directly due to officials’ malfeasant actions contrary to the aforementioned guidelines.  Furthermore, in violation of the national standard of medical care in public health practice, Department of Health officials refused to apply the “AAP-endorsed risk-assessment questionnaire” that Dr. Horowitz recommended along with acceptance of Alena’s licensed medical doctor’s assurance that child was/is TB free. Besides all of the above, Plaintiff refused reasonable consideration of the fact that Defendant’s child ran cross country routinely at the time of her enrollment; up to 8 miles daily with her team, all sufficient proof of no active TB, nor high risk status. Plaintiff’s actions thus constituted bad faith operations in the administration of the TB Control Program of Hawaii as individualized decision-making—the legislative intent of the Dept. of Education’s §302A statutes was disregarded (i.e., gross negligence) along with bureaucratic relief this legislation promised. (See EXHIBIT E.)

 

  1. Moreover, as Department of Education and Department of Health officials have by their arbitrary, arrogant, and capricious actions quarantined this religious school-child by forcing her home study and school dismissal, HRS §321-1(d)advances immediate remedial action compelling the health department director 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.  Defendant Horowitz had requested this information from Plaintiff’s health official in charge of the TB testing program, Judith AKAMINI, and her subordinates, but these and school officials never provided any good-faith or informative response.(Emphasis added).
  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.”
      
       Since this “weekly [TB] 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 responsible officials have been grossly negligent.

  1. Since nearly four months have passed since this tort against the Defendant has occurred without the director’s required “seventy-two hours” response as per §321-1(d), he/she is in breach of this statute and subject to criminal prosecution on at least two counts (the second being the violation of Defendant’s religious exemption). For these torts, the Plaintiff is liable for punitive action 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]

 

5) Defendants’ arbitrary and capricious actions with special focus on vagueness of law

A.  Defendants actions as detailed above have been arbitrary and capricious to the point evidencing a civil conspiracy.  The Defendants have failed to provide any reasoned analysis for their deprivation of minor child’s fundamental rights, notwithstanding the fact that this information has been requested by Defendant on several occasions. 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 precisely as they do with all vaccinations.(See: Declarations of Leonard G. Horowitz and Gary C. Zamber)

B. Thus, all evidence strongly suggests these Defendants have: 1. violated the faith and trust granted them by the public and legislature; 2. misapplied statutes and definitions of law to carrying out illegal, arguably criminal, medical malpractices and public deceptions that; 3) set a dangerous national precedent challenging fundamental human rights constitutionally preserved and broadly cherished.

C. 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 Plaintiff, its health and education departments, and officials would need to: 1) 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; and 2) 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 their Administrative Rules book using reasonable common sense analysis there-from which they have failed to provide.  Either of these legally-required actions yields an untenable result disrespecting fundamental rights and medical common sense.

TB skin testing is obviously a procedure for “medical examination” involving triggered antibody production as well as cell-mediated immunity; that is precisely “immunization” as defined by HAR §11-157 (2).

D. A reasonable person would 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.” These definitions differentiate and clarify that “immunization” is different from an “immunizing agent” which is defined as “a vaccine, toxoid, or other substance used to increase an individual’s immunity to a disease.” The Plaintiff’s actions and official public proclamations obfuscate these clear definitions. 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 sensitivity to the test substance(s). Therefore, there is no tenable cause, other than fraud, for health officials to consistently claim that for the purpose of denying religious exemptions, “TB Clearance” is different from “immunization” or “medical examination.”

The aforementioned evidences a conspiracy to commit lethal public health fraud at taxpayer expense.

E. The Defendant prays for this Honorable Court to consider this frivolous complaint damaging to one family, and civil conspiracy lethal to populations throughout the State, as largely the result of ignorance, and bureaucratic/institutionalized bias.

Defendant has on several occasions attempted to remedy this problem, that is, educate TB Control Program and Hilo High School officials. They have responded in bad faith by arrogantly asserting what they are doing is “good for public health.” Continuing to act in an arbitrary and capricious manner, while disregarding corrective counsel, evidences official actions expressing gross criminal negligence, not simply excusable neglect.

  1. To further prove the false state of mind and needless ambiguity of those that carry out this medical malpractice of routinely testing low risk children for TB, the primary term used by administrators in messaging schools and the public in this regard is “TB Clearance.” This phrase has not been defined legislatively, scientifically, or medical-legally.  Since this term is coupled with “immunization” in the lead compound sentence characterizing and asserting these statutes (§302A-1154; 1156), the two terms shall be considered as one descriptive administrative process demanding compliance of health officials in issuing religious exemptions under current, non-epidemic, low risk, failing imminent danger, conditions.

 

G. According to the Rules of Statutory Construction C1-15, either the language of these statutes is clear or they are void for vagueness. The Defendant reads these statutes as abundantly clear and perceives the exclusive confusion rests with the Plaintiff’s agencies, especially the Department of Health. The ambiguity to the point of absurdity in this case derives from officials’ malfeasance. If these officials continue obfuscating these clear statutes by their ignorance and arrogance, then these statutes effectively become vague to the point of absurdity and unconstitutionality.  The reason and spirit of the law is to be considered and construction that leads to an absurdity shall be rejected. Therefore, the Department of Health’s and Department of Education’s administrative obfuscation of these laws and rules shall be rejected. 

H. Hawaii’s religious exemption in matters of health exists to prevent unwanted invasions of overreaching officials into the lives of people who hold bona fide religious objections to medical experimentations, examinations, immunizations, and vaccinations. Our statutes are clear.  However, if there is such ambiguity that the administrative and executive departments of government in Hawai’i are unable to see this clarity then either the statute is overly vague or there simply needs to be a judicial determination on this matter once and for all. This prayer before this Honorable Court shall serve the best interest of public health and social welfare.