Part 2. 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.

 

 

6)  Defendant’s entitlement to declarative relief and damages

Under HRCP Rule 9, Rule 13(a)(b)(c) and (d), and Rule 11(b), Defendant is entitled to declaratory relief and even special damages based upon the following facts:

A. Department of Education and Department of Health has applied “rule” where the same violates constitutional or statutory rights.

The Public Proceedings and Records Title 8, Chapter 91, Administrative Procedure, Section 7 (§91-7) of the State of Hawaii decrees the “Declaratory judgment on validity of rules” may be provided by the Honorable Court when:

  1. Any interested person may obtain a judicial declaration as to the validity of an agency rule as provided in subsection (b) herein by bringing an action against the agency in the circuit court of the county in which petitioner resides or has its principal place of business. The action may be maintained whether or nor petitioner has first requested the agency to pass upon the validity of the rule in question.

 

  1. The court shall declare the rule invalid if it finds that it violates constitutional or statutory provisions, or exceeds the statutory authority of the agency, or was adopted without compliance with statutory rulemaking procedures.(Emphasis added)

B. In 1981, the Hawaii Supreme Court ruled “Constitutional safeguards were designed to protect individual from arbitrary, oppressive and harassing conduct on part of government officials. (Nakamoto v. Fasi, 635 P. 2d 946, 64 Haw. 17)(Emphasis added)

C.  Arbitrary and capricious conduct in violation of Constitutional rights is not tolerated in either a criminal or civil context. In the criminal domain, the Hawaii Supreme Court ruled that Fourth Amendment interest of the individual must be weighed against the public interest.  The Court noted in Nakamoto,

“The defendants have attempted to justify this policy on grounds of public necessity, but necessity in terms of possible harm to the public, in and of itself, will not justify the imposition of an unreasonable requirement, for the public interest must be weighed against the Fourth Amendment interest of the individual. (Citing U.S. v. Martinez-Fuerte, 428 U.S. 543, 555 (1976)).

This reasoning in Nakamoto, though admittedly in another context, is likewise applicable in the current case. It is clearly insufficient by statute and due process to merely assert possible harm to the public in order to justify a harmful breach of fundamental constitutionally protected rights.
  

  1. The requirement that all students in Hawaii’s public and private schools submit to the federally discouraged practice of tuberculosis skin testing (TST) of children at low or no risk for tuberculosis (TB) is an unreasonable, unconstitutional, and arguably a criminal imposition.
  1. The reasoning of the Nakamoto Court is applicable by analogy to the present case of a religious student being forcibly removed from socializing with her friends at school, competing athletically, and receiving her cherished education. Although in a civil administrative context the standard is somewhat lessened, fundamental rights shall not be subject to arbitrary and capricious decision making.

 

  1. More so, in the civil matter pertaining to Administrative Law in Hawaii ex rel. Attorney General v. Federal Emergency Management Agency (93 F. Supp.2d 1103, reversed 294 F.3d 1152) “Agency rule would be arbitrary and capricious if agency relied on factors that Congress had not intended it to consider, entirely failed to consider important aspect of problem, offered explanation for its decision that ran counter to evidence before agency, or rendered explanation so implausible that it could not be ascribed to difference in view or product of agency expertise. (5 U.S.C.A. §706(2))
  1. Also, an administrative rule cannot conflict with the statute it attempts to implement according to Foytik v. Chandler (966 P.2d 619, 88 Hawai’I 307, as amended) and Agsaluc v. Blalack (699 P.2d 17, 67 Haw. 588); and administrative rules may not enlarge, alter or restrict provisions of statute being administered as determined in Topliss v. Planning Com’n (842 P.2d 648, 9 Haw. App. 377) and Jacober v. Sunn 715 P.2d 813, 6 Haw. App. 160).

 

  1. As is clearly the circumstance in this case, “Court may invalidate agency regulation if it is not reasonably related to purpose of statute it seeks to implement or if legislative history reveals clear expression of congressional intent that runs contrary to regulation. (Vierra v. Rubin, 915 F. 2d 1372).(See EXHIBIT E for “Congressional Intent of rule.)   
  1. The Defendant advances as pertinent to his defense and counterclaims local Rules 9 and 13(g) for actions by State Department of Health in violation of current Hawaii Revised Statutes and Administrative Rules regulating the administration of “immunizations,” “vaccinations,” “TB Clearance” and religious “exemptions,” particularly as these violations were direct antecedents to this frivolous and harassing claim of “truancy.”

 

  1.  Rule 11 (b) sanctions authorizes this Honorable Court to award special damages to Defendant for Plaintiff’s official’s dereliction of duty to legitimize “Representations to court.” The charge of “Truancy” by official Robert Dircks, certified by State’s attorneys general in filing this complaint, is patently absurd. Principal Dircks, and Plaintiff’s representing attorney general, cannot claim to have done an “inquiry reasonable,” under the circumstances, nor have “formed after an inquiry reasonable under the circumstances” a reasonable belief in the Defendant’s exercise of “Truancy” as charged in this claim. Along with Defendant’s and child’s ongoing harassment beginning Sept. 1, 2006, this continuing gross negligence and Defendant’s persecution by the State cannot be ascribed to simply bureaucratic “mistake” as per Rule 9(b) inclusion.
  2.  This action by the State proves how “out of control” health and education officials are in performing their duties. A restraining order by this Honorable Court is needed not only for this child’s protection, and to remedy her persecution, but to send valuable messages to: 1) officials to perform due diligence in their legal analysis of duties they are called to administer; and 2) the public that seeks reassurance that justice can be obtained for the prevention of damage caused by negligent and malfeasant officials.
  1.  Declarative relief is needed since the Administrative Rules and State statutes conflict only as a result of official dereliction of duty to adequately review, understand, and justly administer these policies. The public should be likewise informed to legally consent to medical procedures including the TB skin test, as other agencies are doing nationwide according to their laws, as is the legislative reasoned intent of §302A 1154-1157, particularly mandating religious exemptions. Arbitrary, vague, and capricious administrative communications and negligent, arguably criminal, medical mal-practicing officials affecting the lives and rights of children and families throughout the State serve no positive purpose in public health.

 

  1. The claimant has violated fundamental rights and liberties of Defendant as guaranteed by the U.S. Constitution, the Constitution of the State of Hawaii, calling to question the egregiously suspect public health practice standards for TB prevention practiced locally. Local codes, as misinterpreted by Plaintiff, do not grant unbridled powers to officials in violation of fundamental religious rights of citizens. Local laws do not give officials authority to stigmatize and ostracize religious school children. The rules and statutes do not grant violations of public health practice standards in required informed consent for TB screening procedures established by the U.S. Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP). These federal entities have repeatedly and presently directed “public health and school officials . . . to develop a screening program that avoids stigmatization of the at risk group [and obviously low/no risk children as well] . . . by using the AAP-endorsed risk-assessment questionnaire . . .” discouraging routine TB testing of children without low/no risk factors for TB as is the case for this Plaintiff.
  1. Plaintiffs pray for declaratory relief in the form of a judicial determination that the religious exemption to TB skin testing shall not be denied.

 

7. LEGAL BASIS FOR TEMPORARY RESTRAINING ORDER                         AND INJUNCTIVE RELIEF

A.   The Defendant’s child was forced by negligent and malfeasant agents of the State to leave school. Health and education department officials blocked several reasonable good will efforts by Defendant to return this gifted child to school where she longs to be. Now their harassments and malfeasances extend to this complaint with the State filing a frivolous and fraudulent complaint against Defendant for “Truancy.”

B. By the aforementioned proceedings, officials have violated the public’s trust, and Defendant’s legal rights, by justifying their criminal actions ambiguously, including publicly proclaiming a TB threat disproportionate to the actual non-imminent “danger” of TB epidemic. This tenuous defense they argue compels their violation of fundamental civil rights, state statutes, and national public health policy.

C. This child should not be further victimized by malfeasant officials in the departments of education and health who have not followed reviewable administrative procedures and have violated laws cited. Department of Health personnel, that direct Department of Education agents in this matter, have generally operated beyond scrutiny by failing to provide to the public and Defendant any specific published scientific rationale for their decision to suspend religious exemptions to TB skin testing as required per HRS §321-1(d) and (g). By so doing, said officials are administering a dangerous, nationally unprecedented, TB Control Program.

D. The Department of Health has no legal or scientific basis to suggest that the quarantined child would somehow allegedly pose a threat to other students. In fact, substantial evidence exists to the contrary including child’s medical examination certifying her TB-free status. As a result of denying her the exemption required by law, Alena Horowitz has been socially ostracized, religiously persecuted, educationally hampered, and placed at physical health risks associated with compelled sedentary lifestyle, by the Plaintiffs’ malfeasant actions. It is thus urgent that she return to school.

E.   Hawai’i Rules of Civil Procedure (“HRCP”), Rule 65, provides a remedy to enjoin and provides requirements for injunctions and restraining orders respectively.  HRCP Rule 65 provides for INJUNCTIONS; a Preliminary injunction. (1) NOTICE. And (2) CONSOLIDATION OF HEARING WITH TRIAL ON MERITS. This rule states:

“Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

(b) Temporary restraining order; notice; hearing; duration. A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained a temporary restraining order shall proceed with the application for a preliminary injunction and, if that party does not do so, the court shall dissolve the temporary restraining order. On 2 days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
(c) Security. In all cases, the court, on granting a temporary restraining order or a preliminary injunction or at any time thereafter, may require security or impose such other equitable terms as it deems proper. No such security shall be required of the State or a county, or an officer or agency of the State or a county.
The provisions of Rule 65.1 apply to a surety upon a bond or undertaking under this rule.
(d) Form and scope of injunction or restraining order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
(e) Civil defense and emergency act cases. This rule shall not modify section 128-29 of the Hawai‘i Revised Statutes.(Emphasis added.)

 

F. It is obvious, based upon all the papers and their contents filed herein, that immediate and irreparable injury is current and compounding, and will continue, to the minor child before the merits of this case can be heard. The applicant, by pro se representation, has made all appropriate certifications as required by this rule.  [Declaration of Leonard G. Horowitz]

  1. Statutes §604-10.5, §711-1106, §711-1106.4 and §711-1106.5 provide “power to enjoin and temporarily retrain” Plaintiff from further harming by harassment and other criminal actions defendant and defendant’s child. These laws are included since the “course of conduct” advanced by Plaintiff is obviously harassing, including the torts and criminal actions cited in ANSWER TO COMPLAINT, the aforementioned continuing telephone harassments, and this malicious abuse of process by fraudulently alleging “Truancy.”

 

  1. In §604-10.5, “Harassment” is defined and satisfies the elements of this case, as:

     “(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault; or (2) An intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that, serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.”

I. As detailed in ANSWER TO COMPLAINT, this MOTION, and DECLARATIONS of Defendant father, mother and child, Alena has been physically harmed, psycho-socially and emotionally assaulted, and now threatened with imminent harm and assault if this Honorable Court exercises its power to condemn family and child for alleged violation (i.e., “Truancy”) and fails to administer justice securing cessation of ongoing harassment and mounting injury. Part (2) of the above definition of “Harassment” is also, obviously, fulfilled given the nightly telephonic harassment cited as “petty misdeameanor” in §711-1106(c)and(e), and the “Harassment by stalking” as defined in §711-1106.5, telephonically without consent and legitimate purpose, and by mail including service of this threatening, albeit frivolous and fraudulent, complaint (Civ. 0075006)

  1. Thus, the Defendant’s prayer for issuance of a temporary restraining order, preliminary and permanent injunctive relief, is highly reasonable based on the compelling evidence and ordinances. An immediate reversal of the untenable decision made by State officials to compel this high academic achiever’s “truancy” is undoubtedly justified and well deserved.  There is likelihood that the subject person will prevail on the merits of an appeal from the administrative proceeding to the court. Irreparable damage to the Alena Horowitz will result if a stay is not ordered. No irreparable damage to the public will result from the stay order. The public interest will be served by the stay order.

 

  1. The Defendant prays this Honorable Court will reverse or modify the administrative decision and order of the Department of Education and Department of Health as the substantial rights of Defendant and child have been prejudiced because the administrative findings, conclusions, decisions, or orders are: (1) In violation of constitutional and statutory provisions; and (2) In excess of the statutory authority and jurisdiction of the agency, and (3) Made upon unlawful procedure, and (4) Affected by other error of law, and (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record, and (6) Arbitrary and capricious, and characterized by abuse of discretion and clearly unwarranted exercise of discretion.

 

 

 

VIII. CONCLUSIONS

 
          As a result of gross negligence, criminal mischief, arbitrary and capricious abuse of power, and malicious abuse of process, the Defendant’s child, Alena Horowitz, has been called  before this Honorable Court. These actions by State officials have damaged child academically, psychologically, socially, emotionally, and even physically by risks associated with sedentary home schooling of a varsity athlete accustomed to intensive exercise, sporting competitions, and team support.

Alena N. Horowitz is being wrongfully excluded from Hilo High School activities notwithstanding the fact that she, by and through her father, filed an appropriate document of religious exemption with school officials. The Department of Health, without providing requested written rationale for decision, has taken the position that TB skin test examination is not covered by the exemption.  However, it is clear that the belief in religious blood purity provisions held as bona fide tenet of Defendant and child, as members of an established church holding such standards, would be breached by the TB skin test.  The minor child should, by legal right, be exempt from the general mandate of this immunization examination. 
The denial of school entry to Alena N. Horowitz by not honoring her bona fide religious exemption to the generally applicable immunization and examination laws, absent compelling state interest employing least restrictive means, is resulting in a continuous and compounding harm as outlined in the Answer to Complaint and Declarations respectively, and that can only be remedied by injunctive relief.

WHEREFORE, Defendant prays that the temporary injunction requested be granted and that the clerk of this court issue a writ of injunction pending final hearing and determination of the cause, restraining and enjoining Plaintiff from denying Alena N. Horowitz access to public school classes and extracurricular activities.
         

DATED: Hilo, Hawaii __________________________________

 

                            
                                       ________________________
     LEONARD G. HOROWITZ
     Defendant, Pro se