id
stringlengths 36
36
| title
stringlengths 1
1.29k
| state
stringclasses 37
values | issuer
stringclasses 37
values | document
stringlengths 300
1.94M
|
|---|---|---|---|---|
669c02a8-7fe9-4ab8-8d87-e52b9f1d4428 | In re Browning | hawaii | Hawaii Supreme Court | No. 29057 28)
IN THE SUPREME COURT OF THE STATE OF HAWAT'
IN RE RONALD L. BROWNING, Petitioner.
ORIGINAL PROCEEDING
on URRENDER LICE}
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of Petitioner Ronald L. Browning’ s
Petition to Resign and Surrender License, the attached
affidavits, and the lack of ebjections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai" (RSCH). Therefore,
IT 18 HEREBY ORDERED that the petition is granted.
IT IS FURTHER ORDERED that Petitioner Browning shall
return his original license to practice law to the Clerk of this
court forthwith. The Clerk shall retain the original license as
part of this record. Petitioner Browning shall comply with the
notice, affidavit, and record requirements of subsections (2),
(b), (a), and (g) of RSCH 2.16.
IT 18 FINALLY ORDERED that the Clerk shall remove the
nane of Ronald L. Browning, attorney number 3925, from the roll
of attorneys of the State of Hawai'i, effective with the filing
of this order.
DR: Honolulu, Hawai'i, April 7, 2008.
Ca
Pessstss O17 castryas en
g. Pantgs Ye
ox14
|
a5d9226d-f205-4e31-ad70-4535d362a5d3 | Grindling v. State | hawaii | Hawaii Supreme Court | No. 28997
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
CHRIS GRINDLING, Petitioner,
STATE OF HAWAI'I, Respondent.
ORIGINAL PROCEEDING
(CR, NO, 07-1-0833)
(By: Hoon, €.J., Levinson, Rakayana, Acoba, and Duffy, 99.)
Upon consideration of the petition for a writ of habeas
corpus filed by petitioner Chris Grindling and the papers in
support, it appears that habeas corpus relief is available to
petitioner in the circuit court and petitioner presents no
special reason for invoking the supreme court's original
jurisdiction. See Oili v. Chang, 57 Haw. 511, 512, 557 P.2d 787,
788 (1976). Therefore,
17 IS HEREBY ORDERED that the petition for a writ of
habeas corpus is denied without prejudice to seeking habeas
corpus relief in the circuit court.
DATEL
Honolulu, Hawai'i, February 22, 2008.
Drm
>
Reseeue Oo Nenteeryeunt
po
Camm Avid she
aad
|
cefee75e-022a-448a-8c2f-7edc94840f6d | Hawaii Public Housing Authority v. Kim | hawaii | Hawaii Supreme Court | NO. 28675
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
HAWAT'T PUBLIC HOUSING AUTHORITY, a public body and a
body corporate and politic of the State of Hawai'i,
Respondent-Plaintiff-Appel lee, i
ANTHONY KIM,
Pet itioner-Defendant-Appellant .
APPEAL FROM THE DISTRICT COURT OF THE FIRS? CIRCUg
(CIV. NO, 1RCO7-1-0717) Es
ER REJECTING APPLIC FOR F_CERTIORART
(By: Moon, C.J. for the court")
2
=
m
o
62:9 fi LL NVE eave
Petitioner-defendant-appellant Anthony Kim’s ‘notice of
appeal” and “statement of jurisdiction” to the supreme court
filed on November 27, 2007 are deemed an application for writ of
certiorari. ‘The application is hereby rejected.
DATED: Honolulu, Hawai'i, January 11, 2008.
FOR THE COURT:
LE Justice
* considered by: Moon, C.J., Levinson, Nakayana, Acoba, and ouffy, 33
|
765cf4b1-3947-44b2-8fd4-55bccced2c48 | State v. Bayly | hawaii | Hawaii Supreme Court | No, 27954
oa
IN THE SUPREME COURT OF THE STATE OF HAWAI
STATE OF HAWAI'I, Respondent /Plaintitt-Appeifee
22 Zin 2) eagane
DAVID H. BAYLY, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO, 2DTA-05-00234)
(By: Duffy, J., for the court?)
Petitioner/Defendant-Appellant David H. Bayly’s
application for a writ of certiorari, filed on January 9, 2008,
The
is hereby accepted and will be scheduled for oral argument.
parties will be notified by the appellate clerk regarding
scheduling.
DATE! Hawai'i, February 12, 2008.
Honolulu,
FOR THE COURT:
Yona & Daeg, By +
Associate Justice
Jon N. Tkenaga,
Deputy Public Defender,
for petitioner /defendant-
appellant on the application
considered by: Moon,
C.J.) Levinson, Nakayama, Aeoba, and Duffy, 33
|
258a8191-f811-42dc-9db1-c186722b0cc8 | In re Elion | hawaii | Hawaii Supreme Court | No. 28909
IN THE SUPREME COURT OF THE STATE OF HANAT';
ORIGINAL PROCEEDING
ORDER GRANTING ON TO RESIGN AND SURRENDER LICENS!
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, Jv.)
upon consideration of Petitioner Gary Douglas Elicn’s
Petition to Resign and Surrender License, the attached
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai's (RSCH). Therefore,
IT IS HEREBY ORDERED that the petition is granted.
IT 18 FURTHER ORDERED that Petitioner Elion shall
return his original license to practice law to the Clerk of this
court forthwith. The Clerk shall retain the original License as
part of this record. Petitioner Elion shall comply with the
nts of subsections (a),
notice, affidavit, and record requi
(), (4), and (g) of RSCH 2.16,
IT IS FINALLY ORDERED that the Clerk shall remove the
name of Gary Douglas Elion, attorney nunber 5637, from the roll
of attorneys of the State of Hawai'i, effective with the filing
of this order.
art
Dr Honolulu, Hawai'i, January 17, 2008.
Litton
Brant OS taste es b+
Be
ne nay ar
oss
|
e2ad46b2-27ef-4ea9-b219-6570ad5c3e06 | Office of Disciplinary Counsel v. Blair | hawaii | Hawaii Supreme Court | No. 28824
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
ix
SAMUEL R. BLAIR, Respondent. aE
ORIGINAL PROCEEDING
(00c 07-087-8547)
‘orn |9- ease
RECIPROCAL DISBARMENT ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the Office of Disciplinary
Counsei’s petition for issuance of reciprocal discipline notice
to Respondent Samuel R. Blair, pursuant to Rule 2.15(b) of the
Rules of the Supreme Court of the State of Hawai'i (RSCH), the
menorandum, affidavit, and exhibits appended thereto, and the
record, it appears that:
(1) on October 4, 2007, the Supreme Court of the state
of Oregon entered an order accepting Respondent Blair's
resignation from the practice of law in Oregon while disciplinary
matters were pending:
(2) RSCH 2.15(b) requires the sane or substantially
equivalent discipline in the State of Hawai'i, unless Respondent
Blair shall show cause under RSCH 2.15(c) as to why imposition of
the same or substantially equivalent discipline should not be
imposed:
(3) Respondent Blair has not filed a response to our
November 26, 2007 notice and order; and
a3
(4) a substantially equivalent discipline (disbarment
= s9@ RSCH 2.14(4)) is warranted in this jurisdiction.
Therefore,
IT IS HEREBY ORDERED that Respondent Samuel R. Blair is
disbarred from the practice of law in the State of Hawai'i.
Notwithstanding RSCH 2.16(c), Respondent Blair's disbarment is
effective upon entry of this order.
IT 18 FURTHER ORDERED that Respondent Blair’s
reinstatement in the State of Hawai'i is conditioned (1) upon
payment of all costs of this proceeding, and (2) compliance with
ASCH 2.16.
DATED: Honolulu, Hawai'i, February 6, 2008.
Grw—
carole R. Richelieu,
Chief Disciplinary Counsel, .
for petitioner Slice DkiLarrnee~
Samuel R. Blair, Esq.,
seelt. Ruumcorunayare
PS
Cone €. Duin
|
f5a9eb10-7216-40d0-aec9-2a410bf50a43 | First Hawaiian Bank v. Lau | hawaii | Hawaii Supreme Court | No. 26704
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
FIRST HAWAIIAN BANK, Petitioner-Appellee,
MABEL LAU, also known as MABEL M.Y. LAU, Respondent-Appellant,
and
JOHN DOE 1 as Trustee, Personal Representative or Administrator
cf the Trust or Estate of Wai Man Fung? JOHN DOES 2-50; JANE DOES
1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES
1-50; and DOE GOVERNMENTAL UNITS 1-50, Defendants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(crv. No. 03-1-0101)
(By: Nakayama, J., for the court’)
Petitioner-Appellee’s application for writ of
certiorari filed on December 20, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, January 30, 2008.
FOR THE COURT:
Pn Co name Ore
Associate Justice
Ken T. Kuniyuki of
Kuniyuki § Chang for 3
petitioner-appellee 2
on the application S
ae S =
a2 a
ae = o
considered by: Moca, C.J. Levinson, Nakayama, Acoba, and Duffy, J3.
|
c7d52fa8-2620-45bc-b920-a320e2ec5c6a | State v. Tsui | hawaii | Hawaii Supreme Court | LAW LIBRARY
no. 27775
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
5
STATE OF HAWAI'T, Respondent /Plaints¢#-AppeLli 3
Bie §
vs. ad
aa = 7
Sg s 3
OREVIS TSU, Petitioner/Oefendant-AppellapHs =
Bie a
3
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(HPD CR. NO. 05207153)
0
(By: Duffy, J., for the court")
Petitioner/Defendant-Appellant Drevis Tsui's
application for a writ of certiorari, filed on December 4, 2007,
is hereby rejected.
DATED: Honolulu, Hawai'i, January 10, 2008.
FOR THE COURT:
Gomme. ally he
Associate Justice
Leighton K. Lee (Law Office
of Leighton K. Lee) and
Gary Y. Okuda (Leu & Okuda)
for petitioner /defendant-
appellant on the application
+ Levinson, Nakayama, Acoba, and Duffy, 3
Considered by: Moon, c.J
|
918aac9a-d8c9-4fcb-9019-1799b26f23f6 | State v. Hiramoto | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 28046
IN THE SUPREME COURT OF THE STATE OF HANAT'T
STATE OF HAWAI'I, Respondent-Appellee,
DONNY HIRAMOTO, Petitioner-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR, NO. 05-1-0085)
(By: Nakayama, J., for the court")
Petitioner-Appellant’s application for writ of
certiorari filed on January 8, 2008, is hereby rejected.
DATED: Honolulu, Hawai'i, February 6, 2008.
FOR THE COURT:
Associate Justice
Jeffrey A. Hawk of
Hawk, Sing & Ignacio
for petitioner-appellant
fon the application
VAL VRUON
aa
Shszind 9~eadeuue
‘considered by: Moon, C.J
wvingon, Nakayama, Acoba, and Duffy, 99.
|
8fc362b3-2fa5-4aa2-94a8-e07238a853a2 | State v. Dias | hawaii | Hawaii Supreme Court | No. 27721
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 05-1-0083)
NG_APPLICAI WRIT OF CERTIO
(By: Acoba, J., for the court")
The Application for Writ of Certiorari filed on
Decenber 11, 2007 by Defendant-Appellant/Petitioner Christian
Bradley Dias is hereby rejected.
Honolulu, Hawai'i, January 18, 2008.
FOR THE COURT
DATED:
Associate’ Justice
Phyllis J. Hironaka,
Deputy Public Defendant,
on the application
for defendant-appellant/
petitioner.
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 39.
|
0ef5821f-fece-42bf-849d-8bb311e08f60 | State v. Rumbawa | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27902
IN THE SUPREME COURT OF THE STATE OP HAWAI'T
STATE OF HAWAI'I, Petitioner-Appellant, 3
vs. @
a: §
VASON B- RUMBANA, ROSALINO 8. eaves, angEIE
amon atom herpedente-hpperiees, gg SP
se 2
and jo = 8
MICAH KANAHELE and KEVIN KARRIS, Defendant:
Se
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-2501)
(By: Moon, C.J., for the court")
Petitioner-appellant State of Hawaii's application for
writ of certiorari, filed December 17, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, January 29, 2008.
James M. Anderson, FOR THE COURT;
Deputy Prosecuting Attorney,
for petitioner-appellant,
on the application
Karen T. Nakasone,
Deputy Public Defender,
for respondent-appellee Ranos,
in opposition
Jettrey A. Hawk (of Rawk Sing
& Ignacio), for respondent-
appellee Brown, joining Ranos
in opposition
Arthur &. Ross, respondent-
appellee Rusbawa, joining Ramos
in opposition
* considered by: Noon, C.3., Levinson, Nakayama, Acoba, and Dufty, 39
|
d8d2e29e-f9d0-4357-93c8-d632a17f85de | In re Grell | hawaii | Hawaii Supreme Court | No. 28959
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
IN RE CAROL A. GRELL, nka CAROL A. GRELL MORRIS, Petipjoner.
ORIGINAL PROCEEDING od
DR GRANTING PETIT
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Dafa
Upon consideration of Petitioner Carol A, ri
Petition to Resign and Surrender License, the attached
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai'i (RSCH). Therefore,
IT IS HBREBY ORDERED that the petition is granted.
IT IS FURTHER ORDERED that Petitioner Grell shall
return her original license to practice law to the Clerk of this
court forthwith. The Clerk shall retain the original license as
part of this record, Petitioner Grell shall comply with the
notice, affidavit, and record requirements of subsections (a),
(b), (di, and (g) of RScH 2.16.
IT IS PINALLY ORDERED that the Clerk shall renove the
name of Carol A. Grell, attorney number 5043, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order
DATED: Honolulu, Hawai'i, February 6, 2008.
Slave ee rnco—
sate Tawi no
Ainenane \P
a34s
|
49f0c0fb-fb72-47fa-87e4-fd040cfca51b | State v. Lopez | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27969
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAI'I, Plaintiff-Appellee-Respondent,
ask, LOPES, Defendant-Appettant-etieiondiele
O34
CERTIORARI TO THE INTERMEDIATE COURT OF APPI
(CR. No. 05-1-1244)
40:1 Hd 8) nar amg
CATION FOR WRIT OF CER
(By: Levinson, J., for the court")
Upon consideration of the application for writ of
certiorari filed on Decenber 7, 2007 by the defendant-appellant-
petitioner Mark K. Lopez, the application is hereby accepted.
IP IS ORDERED that orel azgunents shall be conducted in
this case. The parties will be notified by the appellate cler!
regarding scheduling.
DATED: Honolulu, Hawai'i,
yanuary 18, 200
FOR THE COURT:
—StamcG hace <
FE
STEVEN H. LEVIN
Associate Justi
Karen T. Nakagone,
for the defendant-appellant-petitioner
Mark K. Lopez,
on the application
Considered by: Moon, C.J., Levinson, Nakayans, Resbe, and Ouffy, 23.
|
efc4ffd3-7032-4435-b949-408574ceebbb | Thompson v. State | hawaii | Hawaii Supreme Court | No. 27649
STATE OF HAWAI'Z, Respondent -Appellee.
ssssSSSS—
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO. 05-1-0041/CR. NO. 97-2402)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Moon, C.J., for the court)
Petitioner-appellant Janes Thompson's application for
writ of certiorari, filed January 9, 2008, is hereby rejected.
DATED: Honolulu, Hawai'i, February 13, 2008.
Keith S. Shigetoni, FOR THE COURT:
for petitioner-appellant,
on the application
Utter. en
Ceo
Considered by: Moon, Cod busty, as.
|
2a51e87b-29d1-404f-9d6e-a97b0f9ee9dc | Office of Disciplinary Counsel v. Brittain | hawaii | Hawaii Supreme Court | Wo, 28951
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
STEVEN T. BRITTAIN, Respondent.
O89 HY 62834
ORIGINAL PROCEEDING
(ove 07-148-8608, 07-062-8522, 07-06-8466)
(ay: Noon, CJ) Levinson Nekayana; Aedba, end Dutty, 3.)
upon consideration of the Office of Disciplinary
Counsel's “petition for order granting request of steven 7.
Brittain to resign from the practice of law in Liew of
discipline” (petition to resign), the Disciplinary Board's
“report and recommendation for the disbarment of Steven 7.
Brittain’ (report and recommendation for disbarment), and the
nenotandum, affidavit, and exhibits in support thereof, it
appears the petition to resign is supported by Respondent
Brittein’s affidavit and that the affidavit meets the
requirenents of Rule 2.14(a) of the Rules of the Supreme Court of
the State of Hawal's (RSCH). Therefore,
TT 18 HEREBY ORDERED that the petition is granted and
the request of Respondent Steven 7, Brittain to resign in Lieu of
discipline is granted, effective thirty (30) days after entry as
provided by RSCH 2.16(c).
IT 15 FURTHER ORDERED that the Disciplinary Board's
report and recommendation for disbarment is dismissed as moot.
See RSCH 2.14(d) (“resignation in lieu of discipline is a
disbarment for all purposes under these rules, including
aa
reinstatenent”) «
IT IS FURTHER ORDERED that (1) upon the effective date
of this order, the Clerk shail renove the name of Steven 7.
Brittain from the roll of attorneys licensed to practice law in
this jurisdiction, and (2) within ten (10) days after the
effective date of this order, Respondent Brittain shall deposit
with the Clerk of this court the original certificate evidencing
his License to practice law in this state.
IT 18 FURTHER ORDERED that Respondent Brittain shall
comply with the requirements of RSCH 2.16, and the Disciplinary
Board shall provide notice to the public and judges, as required
by RSCH 2.16(e) and (f).
I? IS FINALLY ORDERED that Respondent Brittain shall as
2 condition for reinstatement: (1) make restitution to Nainoa
opunui in the amount of $11,040.94, the State of Hawai'i in the
amount of $11,000.00, and Acclamation Insurance Management
Services/iawai'i Medical Services Association in the anount of
$25,279.96: (2) participate in and be monitored by the Attorneys
and Judges Assistance Program (“AAP”) until he completes his AAP
contract; and (3) pay to the Disciplinary Board all costs
associated with these proceedings.
patel
Honolulu, Hawai'i, March 4, 2008.
Ginn
lia Lira
|
b3471a38-e02f-48d6-979a-8567e8e550aa | State v. Bayly. J. Nakayama concurring in the results only. ICA s.d.o., filed 09/24/2007 [pdf], 115 Haw. 476. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/12/2008 [pdf]. | hawaii | Hawaii Supreme Court | s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HANAT'T
000.
STATE OF HAWAI'I, Respondent/Plaintif£-Appellee
DAVID H, BAYLY, Petitioner/Defendant~Appelant
wo. 27984 ze, 3
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS g
(CASE NO. 2DTA-05-00234)
MAY 29, 2008
MOON, C.J., LEVINSON, ACOBA, AND DUFFY, JJ.,
WITH NAKAYAMA, J., CONCURRING’ IN THE RESULT ONLY
OPINION OF THE COURT BY DUFFY. J.
Petitioner/Defendant-Appellant David H. Bayly seeks
review of the October 11, 2007 judgment of the Intermediate Court
of Appeals (ICA), which affirmed the district court of the second
circuit’s March 31, 2006 final judgment adjudging Bayly guilty of
inattention to driving in violation of Hawai'i Revised Statutes
(HRS) § 291-12 (Supp. 2006).* We accepted Bayly’s application
for a writ of certiorari and oral argument was held on April 17,
2008.
Bayly asserts that the ICA gravely erred in affirming
his conviction because there was insufficient evidence to prove
that he operated a vehicle without due care or in a manner as to
' the Honorable Rhonda Loo presided.
ons
#42 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *
cause a collision with, or injury or damage to, as the case may
be, any person, vehicle or other property.
Based on the following, we reverse the ICA’s judgment.
T. BACKGROUND
On December 6, 2005, Bayly vas charged by complaint
with Operating a Vehicle Under the Influence of an Intoxicant
(OUI) in violation of HRS § 291£-61,? and inattention to driving,
in violation of HRS § 291-12.’ A bench trial was held on
March 31, 2006.
a ty. a
The following facts are dravn from the testimony of
officer Mark Hada and defendant Bayly at trial.
+ urs § 2916-62,
Antoxicant,” provide:
operating a vehicle under the influence of an
in relevant part!
(a) A person comits the offense of operating 2 vehicle under the
influence of an intoxicant if the person operates or assunes actual
physieal control of a vehicle:
(2) White under the influence of alcohol in an amount sufficient
£0 impair the person's normal mental faculties oF ability to
care for the person and guard against casualty:
(2) nile under che infisence of any drog that smpairs the
person's ability to operate the vehicle in a careful and
Prugent manner;
(3) With''0e"or more grams of alcohol per two hundred ten Liters
of breath} oF
(4) With 08 or more grams of alcohol per one hundred
millsiseers or cuble centimeters of 100d,
> uRS § 291-12 provides:
Inattention to driving. whoever operates any vehicle without due care or
{n'a manner as to cause a collision with, of Injury of damage to, as the
case may be, any person, vehicle or other property shall be fined not
hore than §400 sr iaprisoned not more than thirty days, oF both,
REPORTS AND PACIFIC REPORTER ***
On October 1, 2005, at around 12:
Oa.m., the Mavi
Police Department dispatch sent Wailuku patrel units to the
parking lot of 1325 Lower Main Street, on the island of Maui.
Officer Hada, who was assigned to the traffic department at that
time, heard the dispatch and arrived at the scene at
approximately 12:30 a.m. Officer Hada was told by other officers
at the scene that the driver was suspected of being intoxicated.
Officer Hada described the parking lot at 1325 Lover
Main Street as a flat, paved concrete parking lot. The parking
lot was an elevated structure, raised about seven to eight feet
above Lower Main Street, which ie north of the lot, and separated
by @ concrete wall. Between the edge of the parking lot and the
concrete wall is a grassy dirt area approximately two feet wide.
‘The parking lot is raised about one foot to one foot and a half
above the grassy dirt area, The parking spaces are angled so
that vehicles on the side where Bayly’s truck was parked face
northwest. Officer Hada observed that the lighting in the area
was “very adequate,” and that weather conditions were clear.
Although Bayly was not in the vehicle at the time
Officer Hada arrived, Hada testified that the front driver's side
of Bayly's truck was hanging off of the concrete parking area and
wes onto the grassy area. Hada did not notice any damage to any
property or to Bayly's truck.
FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER.
According to Officer Hada, the truck was stuck in this
position, and “there was not enough torque in the vehicle to
actually reverse it out without having to call for = tow.”
After approaching Bayly, Officer Hada observed that
Bayly was disheveled, had a circular and side-to-side sway, had a
strong odor of liguor, and had red, watery eyes, and slurred and
mumbling speech. Hada also testified that Bayly was “very
arrogant, very cocky, very uncooperative” in his interactions
with the officer. Hada perforned the horizontal and vertical
gaze nystagmus field sobriety tests on Bayly, and based on his
observations arrested Bayly for OUI. Bayly was given a blood
test at 2:15 a.m., and the parties stipulated that the test
showed Bayly to have 0.068 grams of alcohol per 100 milliliters
of blood.
At trial, Officer Hada was shown a video of the parking
lot at Lower Main Street. Upon viewing the video, Hada recalled
+ officer Hada testified that sayly exhibited “six clues” during the
horizontel nystagmus test, and exhibited vertical gaze nystagmus ae well’
+ the prosecution also called or. Clifford wong, an expert in
toxicology, to testify regarding Bayly's likely level of intoxication at the
Eine of the incigent. Wong performed # retrograde extrapolation and. test ifiet
that Bayly’s blood-alcohol Level would have been “definitely greater” than
0.08 at sfound midaiont. The district court, however, found that because of
Gacertasney about the anount of tine elapsed between the incident and eh
blood test, the testimony was insufficient to establish the earlier Level
Because the prosecution failed to nest its burden of proving the OUT
charge, end nas not Brought an appeal on the cistrict court's Fuling, evidence
ssterial only to the OUI charge is not at issue in this case. Although the
fact that Bayly was under the influence of alcohol 1s “germane” to his
inattention to driving chacge, gee intra, the specific ang uncertain evidence
Eagarding the precise bloed-aicohel level is not inportant in this case,
“
‘+** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
that there was a yellow “bumpster [sic]” in the parking stalls
where Bayly’s truck had been parked, and that the driver's side
tire of Bayly’s vehicle was off the ledge. When asked whether
the “other side was still on” the parking lot, Hada testified
that he thought it was “partially off” and “believ[ed) it was
hanging on the edge.”
Bayly, testifying on his own behalf, stated that it was
the front passenger side of his truck that went off the edge of
the parking lot, while the left tire or driver's side was
touching the bumper.‘ According to Bayly, he slowly entered the
parking lot stall to ensure that his truck would touch the yellow
bumper with the driver’s side tire so that he would know when to
stop. Bayly explained his car going off the edge as follows:
Unfortunately that bumper isn't even attached to the
concrete and it was pet in a position to where my right side
Went off the embankment at the sane tine that I wae
Cechnically trying to be, you know, touch that bumper with
ny tire
Bayly added that he thought his car going off the edge “ha[d) to
do with @ bad parking stall,” not “anything to do with impairment
or judgment.” With respect to the bumper, Bayly also stated that
they are “completely loose,” and that “there's holes in then
where they're supposed to be mounted in the parking lot so that
they're stationary, but they’re not. They're loose.”
«an ite summary disposition order (S00), the ICA noted disagreenent on
this point, stating that “while the parties disagreed av to which tire went
over the edge of the parking surface, the parties agree that one Wheel did in
fact go over the edge.” Ica’ S00 at 2.
s
FoR Pui
CATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
On cross-examination, Bayly testified that he had been
to the parking let once before in the daytime, but that he was
not aware of the “parking situation” on the side of the lot in
which his car was parked on the night of the incident. Bayly
admitted that he had consumed two beers that night.
Before ruling, the district court summarized the
factual findings relevant to the inattention to driving charge
based on the testimony and video evidence. With respect to the
location of the vehicle, the court reiterated that Officer Hada
testified that the front end of the vehicle’s driver’s side tire
was over the parking concrete area, and based on the video stated
that there was a foot to a foct-and-a-half drop to the grassy
dirt area below. The court reiterated Officer Hada’s testimony
that the bottom of Bayly’s vehicle was touching the concrete area
and that the vehicle’s tire was hanging over the front.
Regarding the yellow bumper, the court found that it was heavy
but mobile with some force, and did not cover the whole length of
the parking stall, such that one tire of a vehicle could pass to
the side of the bumper and end up in the grassy dirt area.
B. Procedural History
After a bench trial, the district court acquitted Bayly
of the OUI charge, but found him guilty of inattention to
driving. The court explained the basis for Bayly’s conviction as
follows:
2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Count tho deal with the inattention to driving and,
again, the date end the defendant driving is not in contest
"phe court needs to setersine here whether or not lr
ate “sith iniury or dansae 13 =
vehicle, of other orooerty.
So this particular case, as far as the inattention to
griving, the Court does tind that Mr, Bayly wae operating
his venicle withost due-cars, 1 lookea at the derunitions
Sf Intentionally, knowingly and recklessly which would apply
Sn this particular area and the Court finds either by the
Getendant's intentional actions, by his knowing actions oF
by his reckless actions, that he definitely was acting
without oe care in this particular manner:
T o understand that driving 1s a muitit
activity whereby you need your hands to drive, your feet to
Sperate the ges pedal, your eyes to watch the road, and your
Brain to compute sll of this
Obviously the application of force on a gas pedal
combined with slowed reaction time due to the drinking, that
Mr. Bayly at the very least aduitted to two beers, net being
able to stop in time, and ending up in this grassy ar
i kind of
2 cinively thal
vehicle without duecare
‘Go the court does find the defendant guilty of coun
tuo and Finds tl the officer, Or- Wong”
Eestinony to be very credible in this particular area, and
Y'll find the defendant guilty of count two.
Bayly appealed, contending, as he does in his
application, that there was insufficient evidence to support his
conviction.
The ICA affirmed the judgnent of the district court,
entering its judgnent on October 11, 2007. In its SD0, the ICA
stated that “HRS § 291-12 specifies that the elements of
inattention to driving are that a person: (1) operated a vehicle,
(2) without due care or in a manner as to cause, (3) a collision
with, or injury or damage to, as the case may be, any person,
vehicle, or other property.” ICA's SD0 at 2. After reviewing
each element, the court found that sufficient evidence existed
‘#* FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
for each. The first element, operation of a vehicle, was
admitted. Id, The ICA found that there was sufficient evidence
for the second element, operation without due care, based on the
following:
Ofticer Hada testified that the area was adequately 1it
Further, while the parties disagreed as to wiich tire went
over the edge of the parking surface, the parties agree chat
one wae? dia in fact go over the edge. Sayly's treck endes
Sp hanging off the edge of the parking lot, insobilizes te
the point where a tow truck was’ required to ewtricate it
Based on the evidence, the district court could have
inferred that Bayly wes not operating his vehicle with doe
care, Bayly admitted consuming two Deere pricr to parking
the vehicle. Officer Hada testified that Bayly displayed
signs of intoxication and was arrogant and cocky. Or. Wong
testified that Bayly's Likely level of impairment at the
tine of the incident waz a blood alcohol content in excess:
of .08 grams. Evidence of impairment is “germane to 9 charge
of inattention to ariving.”” state v. Mitenell, 98° Havel’!
See, 401, 15 .3d 316, 327 (Appr 2000)
‘White tayly is Correct in his asiertion that the mere
occurrence of an accisent is insufficient to sustains
Conviction for inattention to Oriving, here we have the
eeldence of an accident, evidence of bayly's intoxication,
fand the testimonies of Bayly, the arresting officer, and the
Intoxication expert. viewed in the Light mest faverable te
the State, this is enough to sustain the conviction.
Michell, 94 Mawai't at 401-02, 18 P.3d at 327-26. "We need
hot Getermine that the evidence shows negligence ss 2 matter
ef law but merely that the evidence shows s possibility that
hegligence could be found es # matter of fact. Ja. ck 402,
15 3d at 328 (quoting State v. Tamanaha, (6 Haw. 245, 256,
S07 b.2d' 688, 696 (1962)
ICA's SDO at 2-3. With respect to the third element, the ICA
held that “the State adduced sufficient evidence of @ collision
between the botton of Bayly's truck and the concrete parking lot
surface to sustain Bayly’s conviction,” ICA's $b0 at 3, citing
this court's decision in State v. Williams for the proposition
that “the vehicle must nevertheless ‘collide’ with another
object.” 114 Hawai'i 406, 410, 163 P.3d 1143, 1147 (2007).
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
Bayly filed an application for writ of certiorari on
Janvary 9, 2008. No response was filed and oral argument was
held on April 17, 2008.
11, STANDARDS OF REVIEW
sufti f Judi couittal
[Elvicence adduced in the trial court must be considered in the
strongest Light for the prosecution when the appellate court
passes on the legal sufficiency of such evidence to support a
Conviction; the same standard applies whether the case wae before
2 Judge or jury. The test on appeal 1s not whether guilt is
@stablished beyond a reascnable doubt, but whether there wes
Substantial evidence to support the conclusion of the trier of
fact.
State v. Richie, 68 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998)
(quoting State v. Quitoa, 85 Hawai'i 128, 145, 938 P.2d 559, 576
(1997)). “Substantial evidence’ as to every material element of
the offense charged is credible evidence which is of sufficient
quality and probative value to enable a person of reascnable
caution to support a conclusion.” Richie, 88 Hawai'i at 33, 960
P.2d at 1241 (internal quotation marks and citation omitted) .
‘The standard to be applied by the trial court in ruling upon a
notion for a Judgeent of acquittal ia whether, upon the evidence
‘sewed in the ligne most favorable to The prosecution and in full
Fecognition of the province of the trier of fact, @ reasonable
Bind might faicly conclude guilt Deyond a seaeonable doubt. An
appellate court employs the sane standard of review.
State v. Keawe, 107 Hawai'i 1, 4, 108 P.3d 304, 307 (2005)
(brackets omitted) (quoting State v. Pone, 78 Hawai'i 262, 265,
892 P.2d 455, 458 (1995)).
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
8. or ation
Statutory interpretation is a question of law
reviewable de nove.” State v. Levi, 102 Hawas's 262, 265, 75 P.3d
1273, 1176 (2003) (quoting State v. Arceo, 64 Hawai'i 1, 10, 928
F.2d 843, 852 (1996)). This court's statutory construction is
guided by established rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself,
Second, where the statutory language is plain and
unambiguous, cur sole duty ie to give effect te its plain
‘and obvious’ meaning. Third, implicit in the task of
Statutory construction is our foremost obligation to
ih and give effect to the intention of the
ture, which 1s to be obtained primarily from the
Contained in the statute seself. Fourth, when
Ts Goubt, “doubleness of neaning, oF indistinctivensss
of uncertainty of an expression used in a statute, an
ambiguity exis
Peterson v, Hawaii Elec, Light Cou, Inc., 85 Hawai'i 322, 327-28,
944 P.2¢ 1265, 1270-71 (1997), superseded on other grounds by HRS
§ 269-15.5 (Supp. 1999) (block quotation format, brackets,
citations, and quotation marks omitted) .
In the event of ambiguity ina statute, “the meaning of
the ambiguous words may be sought by examining the context, with
which the ambiguous words, phrases, and sentences may be
compared, in order to ascertain their true meaning.” Id.
(quoting HRS § 1-15(1) (1993)). Moreover, the courts may resort
to extrinsic aids in determining legislative intent, such as
legislative history, or the reason and spirit of the law. See
RS § 1-15(2) (1993).
10
“* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
TIT. DISCUSSION
A. ‘The Elemente of Inattention to Driving
HRS § 291-12, “Inattention to Driving,” provides as
follows:
Whoever operates any vehicle without due care or in a manner
as to cause a collision with, or injury or damage to, as the
Case may be, any person, vehicle or other property shall be
fined not nore than $500 or imprisoned not more then thirty
days, oF beth.
‘The ICA interpreted the offense to be composed of three parts:
(2) operation of a vehicle, (2) without due care or in a manner
as to cause, (3) a collision with, or injury or damage to, as the
c
nay be, any person, vehicle or other property.
As presented at oral argument, the statute is
susceptible to another interpretation, in which the disjunctive
‘orm provides for two alternative means of proving the offense
(the “alternative means” theory).’ The ambiguity in the statutory
text thus concerns whether the “without due care” requirement is
tied to the “collision”/*injury"/"damage” requirement (the
* This view was set forth by the ICA in an earlier published opinion
that examined the inattention to driving statute to determine whether it
punished the “sane conduct” as a forner statute for the offense of “Driving
Ender the influence of drugs,” HRS § 291-7(a) (1993) (repealed 2000). state
rtenoks, 96 Hewel'l 168, 46 P.54 1 (app. 2002). The ICA stated that “the
Sianent of driving ‘without due care’ is an alternative one to the element of
Griving ‘ina manner as to cause a collision with, or injury cx damage to, a8
the cae say De, any person, vehicle, or cther property(.)’" 1d, at 198) «6
Pid at @ (alteration in original).
‘Under the “alternative means” theory, the prosecuticn is required to
prove two things: (1) operation by defendant of a vehicle, and (za) "without
Sie"tare” or (2b) “in a manner ae to cause, a collision with, or injury or
Gamage to, az the case may be, any person, vehicle or other property.”
n
ct FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_
“physical harm” element) or stands alone as a sufficient basis
for charging the crime.
Wie are convinced, based on our reading of the statute
in the context of the Hawai'i Penal Code, canons of statutory
interpretation, and prior precedent, that the ICA's
interpretation in the current case is a better construction of
the statute.
1, Problems With the "Alternative Means" Theory
ow care”: absur
Unconstitutional vagueness
The “alternative means” theory creates problems of
interpretation with regard to the firet means by which the
offense of inattention to driving could be committed -- namely,
to operate a vehicle “without due care.” It is a basic rule of
statutory interpretation that “[p}rovisions of a penal statute
will be accorded a limited and reasonable intezpretation . .. in
order to preserve its overall purpose and to avoid absurd
results.” State v. Bates, 84 Hawas'< 211, 220, 933 P.2d 48, 57
(1997), Under the first part of the “alternative means” theory,
one may be prosecuted for slips in attention or other instances
of “inattentiveness” while driving, such as momentarily taking
one’s eyes of the road, even when no harm results. Such
* We ditter slightly, however, in how we would parse the three parts of
the statute, See intra Section II1.A.3.
2
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
possibilities show the potential for arguably absurd applications
resulting from the “alternative means” interpretation.
The “alternative means” theory also raises potential
constitutional concerns. “[WJhere possible, we will read 2 penal
statute in such a manner as to preserve its constitutionality.
To accord a constitutional interpretation of a provision of broad
or apparent unrestricted scope, courts will strive to focus the
scope of the provision to a narrow and more restricted
construction.” Id. Interpreting the statute to apply to any
Griving that betokens, without more, a lack of “due care” raises
potential problems of unconstitutional vagueness, by granting
indeterminate discretion to arresting officers to apply the
statute. This court has explained that
{clue process of law requires that 2 penal statute state
with reasonable clarity the act it prescribes and provide
xed standards for adjudicating guilt, or the statute ie
veld for vagueness. Statutes suse give the person of
ordinary intelligesce 2 ressonable opportunity to know what
Conduct is prohibited so that he or she may choose between
Teweal ang Unlawful conduct:
vagueness is measured by the following standard:
A) criminal statute is void for vagueness unless it:
i) gives the person of ordinary intelligence a reasonable
opportunity to know what is prohibited 40 that he or she may
act accordingly, snd 2) provides explicit standards for
those uno apply’ the statute, in order to avold arbitrary and
Gisershinatory enforcenent and the delegation of basic
Policy matters to policemen, Judges, ana juries for
Fesolution on an ed hoc and subjective basis
Id. Because it fails to specify an explicit standard, the mere
command that one not drive “without due care” -- regardless of
B
++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
any physical harm caused by such driving -- raises potential
problems of arbitrary and discriminatory enforcenent. The
potential of the “alternative means” theory to violate important
penal and constitutional principles suggests that a nore sensible
interpretation would be preferred.
b. Hawai'i o: not. m
“alternative means” theory.
Past decisions also provide implicit disapproval of the
“alternative means” theory in the context of inattention to
driving. In State v Mitchell, the ICA upheld a conviction for
inattention to driving when the defendant’s vehicle “plowed inte
the rear” of a car in front of it, which sustained “rear-end
damage.” 94 Hawai'i 388, 401, 15 P.3d 314, 327 (App. 2000). In
explaining its opinion, the ICA stated that
Witohelt contends, and se aatee, that mere occurrence of an
accident without tore, is anauféscrent to sustains
Conviction for inattention £0 ariving: ‘Adeittedly™ the
Fecord does not suffer fron plethors of evicence’ as to the
phyoteel circanatances of the accident. However” as
Seteiied Shove, there is nove in thas Zecord than the mere
occurrence of an accident”
Id. (citation omitted). By rejecting the possibility that a mere
accident could lead to Liability, the TCA also rejected,
impliedly and sub silentic, the non-culpable alternative of the
“alternative means” theory of the statute.* But see Momoki, 98
+ im tact, a8 alscvssed intra, it would violate the Hawal'i Penal Code
ke altow conviction for inattention'to driving based en homesipable sender,
Secause every elenent of « penal offense must cory a stare of bing of oe
Teast “recklessness” unless legislative purpose to inpose ebsolute Liability
(continued.--}
4° FOR PUBLICATION IN WEST'S 1
WAN'T REPORTS AND PACIFIC REPORTER ***
Hawai'i 188, 46 P.3d 1 (endorsing the “alternative means” theory,
discussed supra note 7).
Moreover, in all prior published decisions concerning
HRS § 251-12, the physical harm element has been present, usualy
in the form of 2 collision. See State v, Reves, 57 Haw. 533,
533, 560 P.2d 114, 115 (1977) (defendant, “intending to make a
left turn froma tyo-lene highway into a gravel road, moved the
vehicle he vas driving from the right to the left lane, where it
was struck from behind by a vehicle which was overtaking a line
of three cars”); Mitchell, 94 Hawai'i 388, 18 P.3d 314 (xear-end
collision); State vs Lee; 55 Haw. 505, 523 P.2d 315 (1974)
(clarifying that the inattention to driving statute applies to
activity on private roads and accordingly reversing trial court's
dismissal of two cases: in both, the charge was that the
defendant's vehicle had collided with another vehicle).
2, A Unitary Approach to HRS § 291-12
A better starting point 1s to analyze the elements of
the inattention to driving offense according to the framework of
(.. .continued)
is strikingly clesr. See State v, Rushing, 62 Haw. 102, 105, 612 F.2d 103,
4106 (1380) (*(3]he mere absence of = specification of the requisite state of
ind does not provide a sufficient basis fron which to override the general
policy of the Hawaii Penal Code that ansolute or strict Liability in the penal
Taw ie indefensible if conviction regults in the possibility of imprisonment,
land condesnation. “That the legislative purpose to impose absolute liability
Should not be discerned lightly by the courts seens very clear.” (Citations
enitted.)]. When an offense fails to specify the nentel state required, the
Gefault mental states of vintentionsliy,” “knowingly,” and “recklessly” are
Spplied.” fae WRS 702-204; dnfra Section 211-Ac2-
1s
on
CATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,
the Hawai'i Penal Code. See HRS § 702-205 (“Elements of an
offense,” include “conduct,” “attendant circumstances,” and
vresults of conduct”).! HRS §§ 701-114(1) and 701-114(2) (1993)
require proof beyond 2 reasonable doubt of “[e]ach element of the
offense,” as well as “(t]he state of mind required to establish
each element of the offense.” See also HRS § 702-204 (“[A]
person is not guilty of an offense unless the person acted
intentionally, knowingly, recklessly, or negligently, as the law
specifies, with respect to each element of the offense.”
(Emphasis added.)).
‘The inattention to driving statute, HRS § 291-12, is
comprised, inter alia, of @ conduct element and a result of
conduct element. First, the statute includes a conduct elenent.
‘The conduct element, itself composed of several parts, includes
operation of @ vehicle," and the phrase “without due care or in a
manner.” The statute concludes with a result element, “as to
\ Although HRS § 291-12 was first enacted in 1971, 1972 Haw. Ses. L
Act 150, § 2, at 347, prior to the adoption of the Hawai'i Penal Code, 1972
Naw. Sess. L! Ret 9, $1, at 32-162, the Code nevertheless applies to it. ERS
$'761-102(3}" (1993); entivies, “All' offenses defined by status
Spplicabitity to offenses committed after the effective date,”
provisions of chapters 701 through 706 of the Code are applicabl
Sefined by other statutes, unless the Code otherwise provides.”
‘offenses
4H that one is operating a zshicla, rather than something else that can
be “operated” (e.g. @ bicycle), could also be analyzed as an attendant
Circumstance element cf the crime. However, because there is no dispute that
Bayly operated a vehicle, it is uinecessary to engage in this analysis.
_*#t FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_
cause a collision with, or injury or damage to, as the case may
be, any person, vehicle or other property... .” HRS § 291-12.
‘Two aspects of the phrase “without due care or in a
manner,” which modifies the type of driving punishable by the
statute, should be noted. First, the phrase refers to the manner
in which a vehicle is operated, or the nature of that operation.
It thus describes conduct. In State v. Reves, this court,
apparently relying only on the “without due care” verbiage of the
statute, read the phrase to suggest state of mind requirenent,
and concluded that inattention to driving “requires only a
showing of negligence in the operation of [the] vehicle... .”
57 Haw. 533, 534-35, 560 P.2d 114, 115-16 (1977). However, the
Hawai'i Penal Code sets a higher standard for criminal negligence
than the mere lack of “due care.” For example, HRS § 702-
206(4) (a) (1993) specifies that “[a] person acts negligently with
respect to his conduct when he should be aware of a substantial
and_uniustifiable risk taken that the person's conduct is of the
specified nature.” (Emphasis added.) HRS § 702-206(4) (d) makes
clear that “[a] risk is substantial and unjustifiable within the
meaning of this subsection if the person’s failure to perceive
it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the
obs
n
14+ FOR PUBLICATION IN WEST'S HAWA' REPORTS AND PACIFIC REPORTER.
game situation.” (Emphasis added.).” “Gross deviation” from a
law-abiding person's standard of care denotes a higher level of
culpability than 2 mere deviation from the “due care” standard.
To the extent that the “without due care” designation fails to
map the state of mind requirement described as “negligently” in
the Hawai'i Penal Code, we believe that no state of mind is
clearly specified by the statute. Therefore, the default states
of mind of “intentionally,” "knowingly," or “recklessly,” would
be required as to each element of the statute. See HRS § 702-204
(then the state of mind required to establish en element of an
offense is not specified by the law, that elenent is established
if, with respect thereto, a person acts intentionally, knowingly,
or recklessly."). Accordingly, we overrule Reyes on this point.
‘The second important aspect of the phrase “without due
care or in a manner” follows naturally from the above analysis,
1 RS $ 702-206(4), defining “Negligently,” provides in fui2
{a} A person acts negligently with re
snould be aware of 9 substantial
the person's conduct is of the specified nature
(b) A person acts negligently with respect to attendant circunstances
nen he should be aware of a substantial and unjustifiable risk
that such clrounstances exist.
(c)_ A person acts negligently with respect to a result of his conduct
vinen he should be aware of a substantial and unjustifiable risk
that his conduct will cause such result.
(a) A Fisk Ls substantial and unjustifiable within the meaning of this
subsection if the person's failure to perceive it, considering the
ature and purpose of his conduct and the cireunstances known to
Involves a gross deviation from the standard cf care taat 2
sbiding person would cbserve in the sane situation.
1
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,
namely, that the phrase should be understood as a unitary
expression of the type of driving punishable by the statute,
rather than a construction establishing alternative means to
prove the offense. Under this reading, the phrase “in @ manner
as to cause” is best understood as an extension of the “without
due care” language, linking the conduct and result elements. In
other words, beth phrases describe the manner of operation of the
vehicle -- which we have interpreted as requiring a mental state
of at least recklessness -- and link that manner to the result
element of causing a collision, injury, or property damage. In
this case, the term “or” is best read conjunctively. See HRS §
1-18 (1993); In. ze City é County of Honolulu Corp, Counsel, 54
Haw. 356, 374, 507 P.2d 169, 178 (1973) ("We are of the opinion
that the disjunctive ‘or’ in the context as used in [the statute]
actually imparts the meaning of the conjunctive ‘and’. The sense
of a word which harmonizes best with the whole context of the
statute and promotes in the fullest manner the apparent policy
and objects of the legislature mst be adopted.”). Because under
the Hawai'i Penal Code each of the two expressions, “without due
care” and “in a manner [as to cause], connote at least a
reckless state of mind with respect to the conduct of operating a
vehicle, interpreting them together best harmonizes the phrase
with the statute as a whole.
rr
{** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
This interpretation avoids the problems outlined above
-- potential absurdity and unconstitutional vagueness -- while
fulfilling the dictate that “[p]rovisions of a penal statute will
be accorded @ limited and reasonable interpretation... in
order to preserve its overall purpose,” Bates, 84 Hawai'i at 220,
933 P.2d at 57. It also represents a sensible approach to a
statute that is not 2 model of clarity, and is consistent with
the manner in which the statute has been applied in our caselew.
Based on the foregoing, we hereby reject the
“alternative means” theory of HRS § 291-12 expressed by the ICA
in Momoki and require that the conduct and result elements all be
proven, along with the requisite state of mind, to convict under
the statute.
3. Applying This Construction of HRS § 291-12 to the
Instant Case
Therefore, in order to convict under HRS § 291-12, the
prosecution had the burden of proving beyond a reasonable doubt
that Bayly (1) operated a vehicle “without due cere or in a
manner," (conduct) (2) “as to cause 2 collision with, or injury
or damage to, as the case may be, any person, vehicle or other
Property” (result of conduct), HRS § 291-12, and that he did so
(3) intentionally, knowingly, or recklessly, HRS § 702-204.
1 We acknowledge that “reckless driving” is also punishable by another
statute. See HRS § 281-2 2007} ("Whoever operates any vehicle or rises any.
(Continued.
20
FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
Bayly asserts that the ICA gravely erred in affirming
his conviction of inattention to driving, because there was
insufficient evidence to prove that Bayly operated a vehicle
without due care or in a manner as to cause a collision with, or
injury or damage to, as the case may be, any person, vehicle, or
other property. Because Bayly does not dispute that he operated
the truck on the night in question, we restrict our analysis to
the evidence of any collision, injury, or damage caused by
Bayly’ driving.
5 i
Sugties “collision With.
‘The Collision Requirement and Bayly’s Argument,
Under the result element of HRS § 291-12, the
prosecution must prove that there was @ collision, that a person
was injured, or that property was damaged. As no evidence of
property danage or personal injury was presented at trial, this
case hinges on the evidence of a “collision.”
(continued)
animal recklessly in disregard of the safety of persons or property is guilty
Of reckless Griving of vehicle or reckless riding of an animal, as
Sppropriate, snd shall be fined not more than $1,000 or imprisoned not more
than thirty days, or both.").. Indeed, this fact'supporte the idea that the
legislature criginally intended the “physical harm” component inthe
inattention fo driving statute to be a mandatory part of the offense, so as to
distinguish ceiving "without due care” from ite close relative, “recklessly in
Gieressra of the safety of persons of property.” Compare HRS $ 251-12 mith
hes §°251-2.
a
HAWAII REPORTS AND PACIFIC REPORTER
In his application, Bayly argues that the prosecution
failed to adduce evidence that Bayly collided with any person,
vehicle, or other property. Bayly does not deny that his truck
“came into contact with the concrete parking lot surface.”
Rather, Bayly argues that “this incidental contact [did not]
constitute[) a ‘collision.’”
Notably, the district court made no findings with
respect to this element of the inattention to driving charge."
The ICA, in its S00, treated the issue as follow:
‘As to the third element, the State adduced sufficient
evidence of a collision between the bottom of Sayly's truck
Sha) the concrete parking lot surface to sustain Bay's
Conviction 114 Hawai'i 406, 410,163
bola 11463, 118) TOOT) the wehicle mast neverthelces
Scollige’ ‘with ancther object”)
Ica’s Spo at 3.
In its brief to the ICR, the prosecution argued that
Bayly’s “operation of his truck resulted in @ collision between
his vehicle and the surface of the parking lot,” based on Officer
Hada’s testimony that the bottom frame of Bayly’s truck was
M in its oral ruling, the court focused only on the “due care” elenent
of the statute, discussing the various pieces of evidence in favor of that
Ending, The absence of eny consideration of the “collisien"/"inguey")
“ganage” clement is clear from the manner in which the court conciuded its
Obviously the application of force on a gas pedal combined with
Slowed reaction time due to the drinking, that Hr. Bayly at the very,
least adnitted to two beers, not being able to stop in tine, and ending
“i
up in this grassy ares. xt dose nee!
So the court does sind the defendant quiltv of count two...
2
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
touching the concrete parking lot surface. According to the
prosecution, it could reasonably be inferred “that the bottom
frame of [Bayly’s] truck collided with the parking lot surface
when it went over the edge of the parking lot.” The prosecution
also noted that “the bottom frane of a truck is not @ portion of
the vehicle that normally cones into contact with the ground, as
the truck's tires usually keep the body above ground level.”
2. ‘The Meaning of “Collision”
Because the evidence adduced regarding the alleged
“collision” is not in dispute, the question whether 2 “collision”
occurred is a pure question of law. Specifically, at issue in
this case is whether contact between the botton of @ truck and
the surface on which the vehicle sits -- be it a road or a
parking lot -~ constitutes a “collision.” More broadly, the
basic issue is whether a “collision” occurs when some part of a
vehicle contacts only the road itself.
In order to answer this question, this court must heed
the “plain and obvious meaning” of the statute in order to give
effect to the intention of the legislature. See Beterson, 85
Hawai'i at 327, 944 P.2d at 1270. If the statute is ambiguous,
land no such plain or obvious meaning emerges, it is permissible
for the court to resozt to context and extrinsic aids. See HRS
§§ 1-15(1) and 1-15(2).
2
OR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER ***
We focus on the critical phrase: “collision with .
any person, vehicle or other property." HRS § 291-12. The term
“collision” is not defined in HRS chapter 291. As a general
matter, “(t]he words of a law are generally to be understood in
their most known and usval signification, without attending so
much to the Literal and strictly grammatical construction of the
words as to their general or popular use or meaning.” HRS § 1-14
(2993). To determine what meaning to attach to the term
“collision,” we first review relevant caselaw on the meaning of
“collision” in other criminal statutes as well as in the context
of automobile insurance policies that cover “collisions.”
a. saselaw definitions of “collision”
This court recently exanined, although in a different
context, a similar “collision” requirement in HRS § 2916-21
(supp. 2004), which mandates that police officers take a blood
sample to determine intoxication in the event of a “collision”
where the officer has probable cause to believe a person involved
committed an enumerated traffic offense. State v. Williams, 114
Hawai'i 406, 163 P.3d 1143 (2007). In Williams, a police officer
arrived at an accident scene to find a motorcycle on the side of
the roadway, and a male party about fifteen feet away, close to
the shoulder of the roadway. Id, at 407, 163 P.34 at 1244, The
male was bleeding from a cut on his lip and the officer detected
2
+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
an odor of alcohol from him. Id. At trial, the officer
testified that he did not find any debris on the ground, skid
marks, or “anything like that,” and concluded that the party fell
from his motorcycle to the ground, Id, at 408, 163 P.3d at 1145,
‘The officer later ordered that a blood draw be taken of the
defendant, without the latter's consent.
The defendant in Williams had asserted that the police
officer was not authorized to order a blood draw under HRS $
2916-21, because evidence of a “collision” was lacking. Id. at
410, 163 P.3d at 1147. In order to assess whether the evidence
was sufficient to constitute a “collision,” this court consulted
the Webster's dictionary definition:
“collision” ie defined as “the action or an instance of
colliding, violent encounter, of forceful striking together
typically by accident and so'as to harm or impede.
o : 46 (2385)
Williams, 114 Hawai'i at 410, 163 P.3d at 1147. The court further
stated that “although single-vehicle accidents may qualify as
collisions, in such a case the vehicle must nevertheless
‘collide’ with another object.” Id, (citing State v. Entrekin,
98 Hawai'i 221, 223, 47 P.3d 336, 338 (2002), in which a
automobile crossed the center divide of a highway and “collided
with a dirt embankment”)!
% “collide” is defined 2s “to becone impelled into violent contact”;
sto strike or dash together in collision typically by accident with a degree
cf ferce and shock angwith solid rather than lancine or sidssviping impact.”
(eontinued.--)
ey
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
Noting the absence of any evidence of danage to the
motorcycle or of the motorcycle’s position with respect to the
road, the 1ack of physical evidence indicating a collision, and
the officers testimony concluding that the defendant “fell off
the bike,” this court concluded that the evidence was
insufficient to establish a collision. Id.
Williams did not directly address the question whether
the motorcycle’s position at the side of the road indicated that
it “collided” with the road when the defendant apparently fell
off the bike. However, by finding the evidence of collision
insufficient, we implicitly rejected the notion that a vehicle
striking the roadside qualifies as a “collision.”
A more direct consideration of the meaning of
“collision” can be found in an older Hawai'i case, Alexander vs
Home Insurance Co., 27 Haw. 326 (Terr. 1923). The sole question
in Alexander was “the liebility of the insurer under the
‘collision clause’ of its policy for damages occasioned an
automobile insured by it which accidently capsized or tipped over
on to the road over which it was being operated.” Id, at 326-27.
‘The insured car capsized when the driver applied the brakes
suddenly to avoid a collision with a horse that had dashed into
the road, coming into “violent contact with the ground at the
added).
26
FOR PUBLICATION
REPORTS AND PACIFIC REPORTER *
side of the road sustaining danage to its body, machinery, and
equipment.” Id. at 327. The insured, arguing that the accident
was covered under the “accidental collision” policy of its
contract, asserted that the violent contact with the road was a
“teollision’ between the automobile and the side of the road
within the definition of that term as employed in the policy.”
Id.
‘The Alexander court ultimately held that the accident
did not involve a collision. Id. at 332. To reach this
conclusion, the court relied upon the generally accepted meaning
of the word, rather than what it termed the “technical
lexicographical definition," under which the accident might be
classified as the “striking together of two bodies” and thus a
scollision.” Id. at 328. The court explained the popular
meaning of “collision” in the following passage:
one describing the accident in the instant case would
not refer to it as a “collision.” the term “capsize” or
Neiprover" as esployed in the submission would be more
Feasonably descriptive of the accident. Were one to refer
Eeuan auterobile a2 Being “in collision” without giving
Further details, the mind of the auditor would naturally
‘Sisuelize an autonehsle cosing in contact with same other
BPittorecress: thie thought is best iilustrated, perhaps
Eycthe not ancsomon accident to 2 pedestrian slipping ena
failing to the pavenent.. One would not say that he collided
with Ene pavement, "A fall 48 not spoken of a8 2 collision.
[ds at 326-29 (emphasis added). The court also quoted the
Wisconsin Supreme Court's similar rejection of a hypertechnical
meaning of “collision”:
2
FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER
*opon, its face this appears to be good logic, but the
conclusion is neither convincing nor satisfying, One
instinctively withholds assent to the result, "the reason is
that it makes & novel and unusual use and application ef the
word ‘collision’. We do not speak of falling bodies as
Colliding with the earth.” In common parlance the apple
Eells to the ground; it does not collide with the
with all falling Bodies, We speak of the descent as a fall,
hnot @ collisions In popular understanging 2 collision does
nnot result, we think, from the force of gravity alone. Soch
fn application of the term lacks the support of ‘widespread
dnd frequent osage’.”
Id, at 331 (quoting Bell v. American Ins. Co., 181 N.W. 733 (Wis.
1921).
Courts in other jurisdictions have also examined
whether similar accidents were “collisions” in the context of
insurance coverage. A notable case representing a view opposite
to that of Alexander is Rayne v, Western Casualty & Surety Cou,
379 S.W.2d 209 (Mo. Ct. App. 1964). In Bayne, the insured’s
tractor and trailer slipped and went onto the soft shoulder of a
highway, causing the tractor and trailer wheels to be submerged
in soft soil and materially damaging the trailer and its load.
Id. at 210. The court was required to determine whether such
contact with the soft shoulder of the highway was a “collision of
the automobile with another object” under the insurance policy.
i
& sayly cites @ Louisiana case, Brow v. Union Indemnity Co., 105 so,
918 (ua, 1925), that ia similar to Alexanger both factually and Interns of
the court's reasoning. In Brown, the Suprene Court of Loulsiens determined
that a there was no collision when the plaintiff-insured, to avoid hitting an
onccosing car, made 2 sharp turn that resulted in the cat tipping over and
coming into "violent contact with the surface of the road, dd.
2
FOR PUBLICATION IN WEST’
HAWANI REPORTS AND PACIFIC REPORTER ***
With regard to “collision,” the court set out the
following reasoning:
Generally speaking, the determination of whether there
hag been a ‘collision’ within ehe intent and mesning of the
policy involves (1) whether there was an object which was
Struck, end (2) the manner of the striking. As noted by the
authorities, there is an irreconcilable conflict in the
efforts of the various courts in construing the meaning and
application of the word ‘collision’ as it appears in
Insurance policy clauses of the type before us. Some courts
constrve the word narrowly by limiting its meaning to a so
called spopular conception’, Le, £he
one 2 Select, and thers
‘SouLact with the around of the hiaheay or shoulder. The
majority of the courts, often noting there 1 no proof that
the word ‘collision’ hes some commonly known and generally
Fecognized restrictive meaning in insurance contracts take
the viewpoine that the word ‘collision’ ‘showls be
Sefined broadly and in ite dictionary ‘striking against’,
thus including every contact with eny part of the highway
Id. at 201.
Adopting a broad definition of “collision,” the
Missouri appellate court next addressed the holdings of other
courts with respect to impacts between motor vehicles and the
roads they travel on:
Courts which have ascribed to 2 dictionary or bread
definition of the word ‘collision’ have held that an impact
between a notor vehicle and obstacles on the rosd such ss
Focks, barricades, noles, excavations, and washoute are
Eollissene with ancther object within the policy provisions
nthe cther hand it has been held that contact of an
Giruepile sith the road itself as where the road surface
icimteaular or hes roush spots. does not consticute a
Spon ith an ebtect within the meaning of the policy
Sig this Senet ines because of 2 genera) feeling chat the
Dolley ai ~pomularly underatood” was not intended to furnish
Soverace Zor that tyse of scciaent and sometimes Because it
was felt that since the autonobile wheels were already in
EGistant contact with the highesy curtace and Tao -senge
striking it ae the eheels tumned around the collision clause
Spon which the autosobile ie Being driven.
However, it is obvious from 2 study of the decisions
that where the impact of striking occurs other than on the
29
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
road proper, i.e, not on that part constructed, intended and
used for travel thereon, the tendency 12 more Libersl toward
Finding coverage upon impact between the vehicle and ancther
object, incluging those formed by the terrein.
Id. at 212 (emphasis added). In applying these principles to the
stipulated incident, the Missouri appellate court ultimately
concluded that a “collision” within the meaning of the insurance
contract had taken place. In reaching this result, the court did
not conclude that 2 mere striking of the road was sufficient;
rather, it described the incident as the “sudden contact of a
moving body, the vehicle, with an obstruction in ite Line of
notion,” which it characterized as 2 “solid bank of earth . .
not part of the regular roadway intended and used for travel,” as
well as “the somewhat perpendicular dirt.” Id, at 212-13.
b. neanii * -
Based on Williams and Alexander, as well as the mandate
of HRS § 1-14 that “[t]he words of a law . . . be understood in
their most known and usual signification,” we believe that the
term “collision” in HRS § 291-12 should be understood in a
colloguial, rather than a technical sense. Under such @
construction, “collision” generally refers to “an automobile
coming in contact with sone other vehicle or some perpendicular
object obstructing the course of its progress.” Alexander, 27
Haw. at 328.
30
FOR PUBLICATION IN WES
*S HAWAII REPORTS AND PACIFIC REPORTER ***
Basic canons of statutory construction provide
additional support for the adoption of this narrover
interpretation of “collision.” In the Bayne case, although the
Missouri appellate court adopted a broader interpretation of
“collision,” which covered the vehicle’s running off of the road
onto soft soil, the court made clear that its interpretation was
Limited to the context of insurance contracts. Indeed, the court
explicitly invoked “the fundamental principle of construction of
insurance contracts that where reasonable to do so such contracts
are to be construed in favor of the insured so as to provide
coverage and against the insurers who drafted the instrument.
379 S.W.2d at 211.°" The broader interpretation of “collision”
was consistent with this principle.
In contrast to Bayne, the instant case arises under the
penal law, where the basic canons of statutory construction
counsel in favor of a less expansive definition. This court has
"this principle has been recognized in Hawai'i, see Dairy Road
partners gy -dsland Ins Co., 92 Howoi's 398, 411-12, 952°P.2a 93, 106-07
fib00) (Ile have Long esbscribed to the principle that [insurance contracts]
host be construed Liberally in favor of the insured and (any) ambiguities
{must be) resolved against the insurer.” (Quoting Estate of =
{hss Grove, 86 Hawai! 262, 271, 948 P-2d 1103, 1132 (1997).)), and has bee
Gpplied in numerous cases construing collision insurance policies. See
Annotation, Recovery under automobile property danace oolicy expressly
nelods ‘exclu ae, uhere venicli -
23 A.L-R. 24389, 395
tigtei Minis, in accordance with the fandenentel principle of construction of
Insurence contracts that such contracts are to be construed in favor of the
insureds dt has been held in s number of cages that the word ‘collision,’ as
Sted in’ provisions insuring @ motor vehicle asainst collision, is to be
construed more strongly against the insurer.").
2
"OR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER **
stated that, “[wlhere a criminal statute is ambiguous, it is to
be interpreted according to the rule of lenity. Under the rule
of lenity, the statute must be strictly construed against the
government and in favor of the accused.” State v. Shimabukuro,
100 Hawai'i 324, 327, 60 P.34 274, 277 (2002) (citations omitted).
This rule makes it more appropriate to adopt @ less expansive
meaning of the term “collision.”
Therefore, for the reasons stated above, the term
“collision” in HRS § 291-12 should carry its common meaning, and
not the more expansive technical definitions used in sone
contexts.
3. Applying this Interpretation of “Collision” to the
Evidence in this ci
The prosecution asserts that there was a collision in
this case based on the contact of the bottom of Bayly's truck ~~
which normally does not touch the road surface -- with the
surface of the parking lot when one side of the truck went over
the parking lot edge. The prosecution has neither adduced
evidence nor proffered any theory about the severity of impact
the truck bottom had with the road surface. No evidence of
damage to the truck bottom appears in the record.
under these circumstances, we cannot say that Bayly
“operate(d] any vehicle . . . in @ manner as to cause a collision
with... other property.” HRS § 291-12. ‘The prosecution's
2
FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER ***
interpretation strains credulity in the face of the commonly
understood concept of “collision.” As the court recognized in
the similar circumstances of the Alexander case, “{o]ne
instinctively withholds assent to the result.” 27 Haw. at 331.
Unlike @ typical “collision,” there was no contact with a
“perpendicular object obstructing the course of [the vehicle's]
progress.” Id, at 328. As Bayly notes, the bottom of a vehicle
comes into contact with the road surface in other circumstances
that are not commonly understood as “collisions,” such as when 2
car “bottoms out” in a pothole or over a speed bump.
In short, Bayly’s vehicle was not involved in a
collision as a matter of law. Without satisfying the result of
conduct element, Bayly cannot be convicted of inattention to
driving. As such, it is unnecessary to reach Bayly’s argument
that the ICA erred in upholding the circuit court's determination
the he operated a vehicle without due care.
IV. CONCLUSION
Accordingly, we reverse the ICA's judgment and the
district court’s March 31, 2006 final judgment.
Sandra Kim (Jon N. Tkenaga,
fon the application and
Teresa D. Morrison, on the Powe in
brief), Deputy Public
Defenders, for petitioner/
defendant“appellant
2
#** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
Renee Ishikawa-Delizo
(Gerald K. Enriques, on the
brief), Deputy Prosecuting
Attorneys, for respondent/
plaintiff-appellee
CONCURRENCE BY NAKAYAMA,
I concur in the result only.
Naa cornea
»
|
08c49bcf-f534-411d-af3e-af32c717655e | Borges v. Department of Water Supply of the County of Hawaii | hawaii | Hawaii Supreme Court | vo. 2enne/
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STELLA I. BORGES and RICKIE BORGES, Petitioners-Appellants,
vs.
DEPARTMENT OF WATER SUPPLY OF THE COUNTY OF HAWAI'I, WATER BOARD
OF THE COUNTY OF HAWAI'I, JOHN DOES 1-25, DOE LIMITED
PARTNERSHIPS 1-25, DOE CORPORATIONS 1-25, DOE GOVERNMENTAL
AGENCIES 1-25, DOE JOINT VENTURES 1-25, INCLUSIVE,
Respondent s-Appellees.
CERTIORARI "0 THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 02-1-0112)
(By: Nakayama, J., for the court")
Petitioners-Appellants’s application for writ of
certiorari filed on December 27, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, February 1, 2008
FOR THE COURT:
Pettit: “ruudaurives
Associate Justice
Robin R. Horner for
petitioners-appellants
on the application
asta
‘considered by: Moon, C.9., Levinson, Nakayama, cobs, and Duffy, 99.
|
e7b47048-6537-43a1-baa5-7dc576a8970a | State v. Vesper | hawaii | Hawaii Supreme Court |
no, 27875 a3
IN THE SUPREME COURT OF THE STATE OF HAWAT'T el &
Ey 2
=r
STATE OF HAWAI'I, Respondent /Plaintiff-Appelledis}= =
Bos
aS
DANIEL VESPER, IIT, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04-1-2430)
‘Acoba, J., for the court")
The Application for Writ of Certiorari filed on
Novenber 21, 2007 by Petitioner/Defendant-Appellant Daniel
Vesper, III, is hereby rejected.
DATED: Honolulu, Hawai'i, January 3, 2008.
FOR THE COURT:
‘Associate Justice
Jeffrey A. Hawk, on
the application’ for
pet itioner/defendant~
appellant.
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and
Dotty, 32.
aad
|
80edee83-bfda-4280-aad6-5f52b7925624 | State v. Mars | hawaii | Hawaii Supreme Court | LAWLIBRARY
No. 27977
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
MICHAEL MARS, Petitioner/Defendant-Appellant,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04-21-1617)
/RDE WRIT OF CERTIO!
(By: Duffy, J., for the court")
Petitioner/Defendant~Appellant Michael Mars’ s
application for a writ of certiorari, filed on January 3, 2008,
is hereby rejected.
DATED: Honolulu, Hawai'i, February 6, 200
FOR THE COURT:
Yann e. Date he
Associate Justice
James 8. Tabe,
Deputy Public Defender,
for petitioner /defendant-
appellant on the application
LUs2ind 9-634 8000
ans
considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 29
|
bb403a40-7108-48ec-8b00-cb34bdfaee8f | Freeman v. Hara | hawaii | Hawaii Supreme Court | No. 29025
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
DIANA FREEMAN, WAYNE UTA, and JAMES IRETJO, Petitioners,
THE HONORABLE GLENN S. HARA, JUDGE OF THE CIRCUIT COURT
OF THE THIRD CIRCUIT, STATE OF HAWAI'I,
HAWAII EMPLOYERS’ MUTUAL INSURANCE COMPANY,” ING.
SERVCO INSURANCE SERVICES CORP. dba AMERICAN ‘1NsBExNcE,
‘AGENCY, INC., and HMP, INC. dba BUSINESS SER
HAWAII,” Respondents.
ORIGINAL PROCEEDING
(eave No. scisozte) Ee
(By: Moon, C.J., Levinson, Nakayama, Acoba, and out}, 39.
Upon consideration of the petition for a writ of
nandanus or ptohsbition filed by petitioners Diana Freeman, Hayne
Uta and Janes Ireijo and the papers in support, it appears that a
judgnent against petitioners on the settlement lien in Civil No.
05-1-0240 will be appealable pursuant to HRS § 641-1(a) (Supp.
2007) by petitioners Freeman and Uta, as plaintiffs, and by
petitioner Ireijo, as a real party in interest (see e.c. Gap v.
Puna Geothermal Venture, 106 Hawai'i 325, 104 P.3d 912 (2004);
State v. Adam, 97 Hawai'i 475, 482, 40 P.3d 877, 884 (2002).
Petitioners can seek a stay of the judgment pending appeal from
the circuit court and from the appellate court pursuant to HRAP
8. Therefore, petitioners are not entitled to extraordinary
relief. See Kema v, Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334,
338 (1999) (A writ of mandamus or prohibition is an extraordinary
remedy that will not issue unless the petitioner demonstrates a
clear and indisputable right to relief and a lack of alternative
aqaw
means to redress adequately the alleged wrong or obtain the
requested action. Such writs are not intended to supersede the
legal discretionary authority of the lower courts, nor are they
intended to serve as legal remedies in lieu of normal appellate
procedures.). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus or prohibition is denied.
DATED: Honolulu, Hawai'i, March 7, 2008.
Sr
Pasi Gr aetey lie
Komen Dues
|
9a5e14ea-1836-4b56-93fd-dfefd21a2795 | State v. Gomes. Dissenting Opinion by J. Nakayama [pdf]. ICA s.d.o., filed 07/11/2007 [pdf], 114 Haw. 284. S.Ct. Order Accepting Application for Writ of Certiorari, filed 12/12/2007 [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRARY
“+++FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER'*#
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00:
aa
KEITH DANIEL GOMES,
Petitioner/Defendant-Appellant
gl zind 02834
wo. 27906
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NOS. 05-1-0661; 05-1-1181)
FEBRUARY 20, 2008
MOON, C.J, LEVINSON, ACOBA, AND DUFFY, JJ.7
‘AND NAKAYAMA, DISSENTING
OPINION OF THE COURT BY ACOBA, J.
Petitioner/Defendant-Appellant Keith Daniels Gomes
(Petitioner) filed an application for writ of certiorari on
October 31, 2007, seeking review of the judgment of the
Intermediate Court of Appeals (the ICA) filed on August 2, 2007,
pursuant to its Summary Disposition Order (SD0) filed on July 11,
2007,! affirming the March 28, 2006 judgment of the first circuit
The $00 was issued by Chief Judge Mark £. Recktenweld and
Associate Judges Corinne K.A. Watanabe and Daniel R. Foley.
‘+eP0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERSS#
court? (the court) in Cr. No. 0S-1-1181,? convicting Petitioner
of bribery of a Witness, Hawai'l Revised Statutes (HRS) § 710-
1070 (1993), and sentencing him to five years’ imprisonment.‘ We
hold that the ICA erred in affirming the court’s denial of
Petitioner's motions for judgment of acquittal of the charge of
bribery under HRS § 710-1070(1) (b) because even in viewing the
evidence in the light most favorable to the prosecution,
substantial evidence did not exist to support the jury’s finding
that Petitioner offered money to a potential witness with the
nt to her to av rvice of process.
HRS § 710-1070 states in relevant part, as follows:
Bribery of or by a witness. (1) A person comits the
offense of bribing a witness sf he confers, or offers oF
‘agrees to confer, directly ox indirectly, any benefit upon 2
itness or a person he believes is about to be called as a
Witness in any official proceeding with intent ta:
a)" “Ineluence the testimony of that persons
@)
‘ummoning nin to testitw or
(c) Tnuce that person to absent himself from an
official proceeding to which he has been legally
Stnmoned.
(Emphases added.) The indictment in this case charged a
violation of HRS § 710-1070(1) (b) and read as follows:
+ the Honorable Steven S. Alm presided.
>the ICA's judgment algo vacated the court's March 31, 2006 anended
Judgment in Crs No. 051-0661, that convicted Petitioner of two Counts of
Assault in the Second Degree, #RS'§ 7O7-711(1) (a) and (1) (@) (1993), and
Tenanded Cr. No, 0S-1-0661 to the court for entry of a new Judgaent’ consistent
ith the S00. Petitioner's Application does not contest this part of the
Sodgment..
+ __Respondent/Plaintiff-Appeliee State of Hawai'i (Respondent) did
not file a memorandum in opposition:
2
‘++ePOR PUBLICATION IN WEST'S HAWAI'E REPORTS AND PACIFIC REPORTER*
the Grand Jury charges;
con or about the 25th day of March, 2005, to and
including the 17th day of April, 2005, in the City and
Gounty of Honoluls, State of Havals, [Petitioner], believing
Leah Zook [(Zeok)] was to be called as a witness in an
Gificial proceeding, did confer, offer, oF agree to confer,
directly or indirestiy, @ benefit upon’ said (Zook), with
(Emphasis added.)
a.
the relevant facts are taken from the record.! As best
as can be reconstructed, the sequence of events as reiterated in
the Application and supplemented by the appellate briefs follow.
(took) moved to tanaii, from Mignesots in Secenber 1959
and noteg'buck to Manescta La Sune 2008" "an Febrsnry 2005,
She fos living in che Botton story of
Gverlooking Mokoles Drive with her young son
PEenes Dena Fennes (*Fannes”)~ On February 28, 2008, Zook
fai 0
Kathy Schoite (*Senaee"l. about the fant she had
sitneased.
(emphases added.) According to Respondent, Schulte testified
that Zook told her about the incident “within [approximately] two
weeks{.]” (Brackets in original.) Schulte also testified that
on occasion, Zook “would tell me how she was involved and how she
was a witness in a trial” arising from the incident she had
witnessed. As Petitioner relates from the record,
Schulte confirmed that within s few days up to two weeks
after the incident, her good friend Zook told her about the
Fight she had witnessed.” Zook also periodically updated
Schulte on her status ai a witness in that case. Schulte
+ Facts in excerpts referred to or quoted from the Application and
from the appellate briefs have been verified in the record
the proceedings arising out of the fight that Zook and Fannes
witnessed are hereinafter referred to es "the essault case.”
3
‘#eFOR PUBLICATION 18 WEST'S HANAI'T REPORTS AND PACIFIC REPORTERS+®
learned trom her then-bovteten: "
hat nie coo sriend, (Petitioner, ang (co-derendant Lance
Lataen Abguin (anousny) wee defendants in a Februaty 2e
pesault case:
(emphasis added.) AhQuin was arrested on February 28, 2005.
Petitioner testified on cross-examination that he knew AhQuin had
been arrested but claimed that he did not know “the degrees (of
assault] or what they meant” or that AhQuin “was supposed to go
to court soon after he was arrested(.]”
The Application recounts from the record that “Zook was
subpoenaed to testify at a March 31, 2005 preliminary hearing on
the [assault] case.” Tt is not clear from the Application, the
briefs, or the Record on Appeal when this subpoena was issued or
served. However, Zook did not actually testify on March 31,
2005. Apparently, according to Respondent, Zook was not required
to appear on March 31, 2005 because the preliminary hearing was
“continued from Mazch 31st to a month down the road.”
‘The record verifies the following, as the Application
states:
Near the end of March 2005, Schulte was with Nolta
[tlhe O'Lounge when they ran into [Petitioner]. Out of
Gorseesty,
‘Schulte struck upa conversation with
Petitioner| to find cut whether the incident fer which Zook
was now_a-criel witness was the came assault with which
Petitionsr| eas charced-Schalte tagrified that-ehen she
nnd [Petitioner| concluded that it wast
‘Tatitionerl “asked [aehultel to tell
Zosk\ not to show up-to court and testify.
‘Gouldplesce tell her not te come te court, that
wen Schulte expressed her doubt that Zook could be
convinced not'to appear in court, Schulte describes
[Fetitioner’s} reaction: "We didn’t
wos could tell hee
'/POR PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER***
1...” On the drive hone, Schulte reviewed with Nolte
the Giscussion she had had with [Petitioner]
(Emphases added.) Nolta confirmed that he encountered Petitioner
“at (T]he © Lounge sonetine in March, mid-March or sometine in
April” of 2005 on “either a Friday or a Saturday.” (Enphasis
added.) Nolta claimed that before this encounter, Petitioner had
not mentioned being involved in a fight in Lenikai.
According to Nolta, he introduced Schulte to Petitioner
and as “a little icebreaker[,]” Schulte mentioned that her friend
had “witns
ed something in Lanikai{.)" Nolta related that
Schulte and Petitioner “put two and two together” and determined
that Zook had seen the fight in which Petitioner was involved.
Nolta testified that Schulte did not tell him that Petitioner had
asked her to do something for him. However, he did state that as
they were leaving The 0 Lounge, he observed Schuite tell
Petitioner, “I/11 take care of it,” and pat him on the back.
According to the record, as stated by Petitioner,
Sehbite thet fis phone showed’ a fev missed calls’ from
[Petitioner]
z sho ie i
Salked to Zook, When tolta said that she bad oats
Petitioner) insistent told Nolte to tell Schulte to talk
‘to-dook, tell iook not te-show ub.and that (Petitioner)
fould-aive Zook money. About three to four hoore tal
[petitioner] again called about the sane subject.
(snphasis added.) Nolta testified that he recalled telling the
Prosecutor's Office that when he finally spoke to Petitioner on
the phone, Petitioner instructed him to ask Zook “if maybe she
would take some money” in exchange “[flor her not to show
up... .” Nolta testified that he did not accompany Schulte to
“++APOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTERS**
Zook's house that day (ise., the day after encountering
Petitioner at The 0 Lounge), but rather “the day after .
Regarding the visit, the record indicates, as Petitioner states,
that
alt about 4:00 or $100 that efternoon,(") Schulte want te
BE # $
hulee’s net Bat renaine
SGoustaixe in che cxuck, Zook, Fannes, and Zock's son were
Rome. Schalte also testified:
Thad told [Zook] that T encountered
[Petitioner] the night before at The O Lounge and that
Ihad asked him whether the involvenent waa the sane
Scenario and he aia yes,
isase tell sour. and that
(Emphases added.) According to Respondent, Petitioner elicited
testimony from Schulte that Zook asked “how much” money the offer
was for, to which Schulte replied that Petitioner “didn’t mention
an amount.” Schulte also answered in the negative when
Petitioner’s counsel asked her whether there was any discussion
regarding “logistics about testifying or not testifying(.]”
The xecord sets forth that thereafter, as Petitioner
relates,
Zook refused the offer, telling Schulte that she didn’t want
an arrest warrant for failing to appear, and that she
wouldn't accept noney because it was a bribe. when Schulte
Feturned to the truck, she related her discussion with Zook
fo Nolta. Noles later told Schulte that he had relaved the
essage to [Petitioner] either later that evening or the
Noita testified that he told the prosecutor and the
prosecutor's snvestigator that
and asked [Noles] to-ask (Soneltel task [zookl it
x 7 te
» mere ia a discrepancy of a day between the Application’s
statenent and tlolta’s testimony.
seePOR PUBLICATION IN WEST’ § HAMAZ'T REPORTS AND PACIFIC REPORTER*#*
—_——————————————
‘not to show uplii” Nolta also told the prosecutor and the
prosecutor's investiga"
‘aubposhaedt. 1, fe
hat she ty
Sate oe Mavett wien (iineudible()) abe
(emphases added.)
Petitioner and his co-defendant, AhQuin were indicted
for two counts of Assault in the Second Degree on April 5, 2005."
According to Petitioner, he was not aware that he might be in any
trouble related to the February 28, 2005 incident until early
April. On redirect examination, Petitioner answered in the
affirmative when asked, “Unlike your brother, who was charged
relatively quickly, you weren't actually charged until early
April; ia that (correct]?"
According to the record, and reiterated in the
Application, Zook testified about a conversation she had with
+ There is no Sndication in the record as to what this subpoena was
for.
+ the indictaent read as follows:
‘the Grand Jury charges
ST" On or about the 26[th) day of February
2005, in the City and County ef Honolulu, State of Hawaii,
fanguin]. .. and [Petitioner] did intentionally or
knowingly Cause substantial bodily injury to Fenokalafi
Misi, thereby committing the offense of Assault in the
Second Degree, in violation of section 707=711(1} (a) of the
Has]
‘count Li: on or about the 28[th) day of February,
2005, In the City and County of Honoluiy, State of Hawaii,
{anauin] . sand [Petitioner] did intentionally oF
knowingly cause bosily injury to Fonokalafi Misi, with a
Gangerous instrument, hereby committing the offense of
Assault in the Second Degree, in violation of Section 707-
TIL(2) (a) of the [HRS]
‘S+¢FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*##
Schulte in mid-April regarding an offer of money in exchange for
Zook refraining from testifying.
nnid-Aoril, Schulte approached took and asked that she pot
relurnto mail to testify in that case, Schulte made chis
Bouse on a weekend wien Zook, her child, and Fannes were
Rone. Schulte told Zook that her {(Schulte’ s]] ex-
boyffiens, [Nolte] knew the defendants. Zook testified
shOtLl “Schulte! sold me that these aentlenen told [Noltal
Eoutell (scholtel to tell [2eok and Fannesl if we didn't
Eeskifyue would Be civen monev.~ Zook also clarified
snd ss {in exchange for us not testifving in
‘shia teil
(Bmphases and some brackets added.) (Internal citations omitted.)
Tt appears from the record that the two accounts concerning
Schulte’s conversation with Zook conveying Petitioner's alleged
offer pertain to the same occasion although Schulte places it at
the end of March and Zook places it at mid-April. In other
words, Schulte and Zook only discussed the alleged offer on one
occasion, either in late March or in mid-April.
Thus, it seems under both accounts that the subpoena
summoning Zook to testify at a March 31, 2008 preliminary hearing
for the assault case had been served before the entreaty from
Petitioner was allegedly conveyed by Schulte. See supra at 4.
It is not clear from the record or the briefs whether Zook had
been summoned to appear at any other court proceedings such as
the trial on the assault case and if she had, on what date the
summons was issued or served.
5
At trial, Petitioner testified on his own behalf that
when he spoke to Schulte at The 0 Lounge, he had not yet been
seeFOR PUBLICATION IN WEST’ § HAWAI'T REPORTS AND FACIFIC REPORTER*#*
——
charged in the assault case, “had not reviewed any reports(, 1”
and “did not know whether there were any witnesses to the
incident.” Additionally, he denied asking Schulte to “tell her
Eciend don’t testify.” He also said that on the day after seeing
Schulte and Nolta at The 0 Lounge, he left only one message for
Wolta, which simply asking Nolta if Zook “could tell them . .
what she had seen.” Petitioner denied that in the message he
told Nolta to tell Zook not to testify or that he would give Zook
money.
At some unspecified time, Zook reported the alleged
offer to the authorities. Officer Neil Han, who was working the
assault case, interviewed Zook on April 24, 2005 or May 2, 2005
regarding the possible bribery. After Officer Han’s interview
with Zook, she testified before the Grand Jury regarding the
alleged bribery offer from Petitioner. On June 8, 2005,
Respondent filed an indictment against Petitioner charging hin
with the offense of Bribery of a Witness in violation of HRS
§ 710-1070 (2) (b) (the bribery case).
1,
‘The assault and bribery cases were consolidated and
went to trial on December 13-22, 2005. In its Opening Statement,
Respondent described the alleged conversation between Schulte and
Petitioner thusly:
‘The bottom line 1s that sometime at the end of March 2005
[Petitioner] fand{ Schulte]... [and Nolta gel to
[2}ne 0° {Lounge} fone evening, probably a
Friday... + (T)hey got together and [Schulte] basically
aeked (Petitioner, “Hey, is this the same thing what I
heard [fron] my feiend?(*) And, it turns out that it was
s++70R PUBLICATION IN WEST’ S HAWAI'I REPORTS 2ND PACIFIC REFORTERS*#
ee
confsemed that [Schulte’ ] Information from (Zook) was the
Sone incident that (Nolta] got from [Petitioner] . And,
{retstioner] tolls (Schulte, “ley, tell your friend (Zook),
jou Keon, if she doy’t Jeiel come back ang testitvs it mich!
= So, (Schulte)
Baysi See, fdow’e think (Zook) would do anything Like
chat a het
ne bach te Cand
Petitioner ssid, “iGo ahead, try. Heap we out{,]” words to
that effect
(emphases added.) Also, in its Opening Statement, Respondent
said the conversation between Schulte and Zook was, “So, at some
point . . . [Nolta] drove [Schulte] to (Zook’s] residence . . .
and put it to her that . . . [‘Hley, [Zook], there’s some money
involved if you don’t come back.[‘] That’s basically what
[Petitioner said.]”
According to Petitioner, during trial,
[Petitioner's] defense counsel thrice aoved for judgment of
acquittal of Bribery, arguing that the evidence presented
Woo insufeicsent co make outs violation of HES § 710-
Tovo(a) (bi, as charged. After thrice denying (Petitioner's)
notions, the icourt] subeitted the Bribery case to the Jury,
tho [2ic] then convicted [Petitioner] as charged.
Petitioner first moved for 2 judgment of acquittal at the end of
opening Statements, arguing that “[Respondent] adduced evidence
that there was intent to adduce -- process by an assertion by
[Respondent] that there was not to show up which is different
actually [from the HRS § 710-1070(1) (c)} charge that [Respondent]
raised versus [a HRS § 710-1070(1)(b)] charge which is process
somebody to receive.” The court ruled, “Okay, I heard
\ this portion of Respondent’ s Opening Statement is inaccurate. The
evidence shows that Zook did not leave Hawai'i until June 2005. In fact,
Reapondent’s Anawering Brief avers that “before (Zook) left Newai's in June of
Dod. "she was, ‘approached (in April) by [Schulte] asking (her) not to cone
Eitk co teatity in this case.’ (Some brackets in original) (Emphasis
sdsed.)
10
seeFOR PUBLICATION IN WEST'S IAWAI'T REPORTS AND PACIFIC REPORTER'##
[Respondent] talk about force. So, the motion is denied as far
as -- basis the motion is denied on that basis{,] too."
When Petitioner made his second motion for judgment of
acquittal at the close of Respondent’s case in chief, the court
ruled that
because of the way the evidence has cone out, we've had
Several statements... that were nade both to [Schulte]
allegedly by [Petitioner] as well as to (Nolta) by
[Petitioner]. And [Respondent] believes that based on all
Of those different statements, that based on the standard we
have here [Respondent] has proven [the bribery charge]. I
sex £ pat toe ser
a Je infers ear
ng hat in Lesking st he nose
# See he on-set
‘SSament of acovites! ts Tustified.”
(emphasis added.)
Finally, Petitioner moved for a judgment of acquittal
at the close of his case, incorporating “by reference the
arguments . . . previously made.” The court ruled, “All right.
And the [clourt will deny it at this time, as well.”
mr.
Petitioner presents the following question in his
Application.
Whether the ICA gravely erred, in violation of
(Petitioner's) due process Fights to be convicted goly upon
proof of every material element Beyond 2 reasonable doubt,
By aftizning the [court's] deniel ef Petitioner’ s] notions
for Judgment of acquittal of Bribery despite # complete lack
% me transcript of this portion of the proceedings is extrenely
gexbied, and the bases for both the motion and the court’ s denial are not
Siscernible to any degree of certainty. However, because Petitioner put on
Svidence after soving for a Judgment of acquittal at the end of Respondent's
Ghse, he waives any error in the denial of his first two motions for Jusgment
Geacquittel, See State v, Puciquet, 62 Hawai" 419, 423, 922 P.2d 1032, 1036
(app. 1996) (citations omitted) -
u
"FOR PUBLICATION IN WEST’ S HAKAI'T REPORTS AND PACIFIC REPORTER:
Leridence that Petitionerl had violated HRs §710-
ian She -
(First emphasis in original and second emphasis added.) This
question seens to raise two issues, namely, (1) whether the court
erred in denying Petitioner's motions for judgment of acquittal
and (2) whether there was sufficient evidence for the jury to
find Petitioner guilty under HRS § 710-1070(1) (b).
Ww.
As set forth above, HRS § 710-1070 recognizes three
distinct culpable acts with respect to a witness's testimony.
Petitioner argues that Respondent must prove “all of the elenents
of the crime charged . . . beyond a reasonable doubt.” (Quoting
State v. Cuevas, $3 Haw, 110, 118, 488 P.2d 322, 325 (1971).)
HRS § 702-205 (1993) provides that “[t]he elenents of an offense
are such (1) conduct, (2) attendant circumstances, and
serve that the commentary to HRS § 710-1070 states
It 4s apparent that substantial interference with any
pert of the process whereby a witness is called to vestify
{nan official proceeding 1s to be condemned. And since
each part of the process ie of unigue importance in assuring
the availability and integrity of the witness, it follows
that the sanction ought to be the sane regardless of which
Part of chia process is obstructed or perverted.
offense to by'neans of conferring
ab tecelting a teneiie siee either’ (1) cegeimoays ia
Note that the person whom the actor attenpes to induce
Gefenses end emphasizing that the ha
Sttompe to interfere weh the course of the official
proceeding
Commentary on HRS § 110-1070 (1993) (emphases added).
2
s+4POR PUBLICATIGN IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTER**#
ee
(3) results of conduct as: (a) (a]ze specified by the definition
of the offense, and (b) [n]egative a defense . . «
‘The court’s bribery instruction read as follows:
‘There are three material elenents of . . . Bribery of
1a Witness, each of which the prosecution must prove beyond ©
Eeasonable doubt
‘These three elements are:
TIS** Ghat, on or about March 15, 2005, to and
Uneliding the i7th day of April, :
[Petitioner] conferred, offered,
Genter, directly or indirectly, any bene£it upon
(Zook) ((conduct) 17 and
2. That (200k) was a person that [Petitioner]
‘Seout! to be called as a witness in
(emphases omitted and emphasis added.) (Some brackets in
original.) ‘The court also instructed the jury that “legal
process means a subpoena.”
Petitioner maintains that none of his purported
statements “evidenced an intent to induce Zook to avoid legal
proceas(] [under HRS § 710-1070(1) (b)] (rather than appearance at
court to testify) [under HRS § 710-1070(1) (c)]."” (Emphasis in
original.) He asserts that “[t]he testimony by witnesses Zook,
Schulte, and Nolta . . . is completely devoid of evidence of the
third element: that [Petitioner] acted with the intent to induce
Zook to avoid the legal process (L.e., evade service of a
subpoena) .”
v
The ICA held with respect to the question raised in the
Application that, “[v]iewing the evidence in the light most
3
‘s*9FOR PUBLICATION IN MEST’S HAKAI'T REPORTS AND PACIFIC REPORTER**#
favorable to [Respondent], there was sufficient evidence that
[Petitioner] offered Zook money with the intent to induce her to
avoid legal process summoning her to testify.” SDO at *1. As
noted previously, Petitioner argues that the ICA's conclusion
constituted grave error and states, further, that “[nJo rationale
elucidates the terse conclusions” of the ICA that the court did
not err in denying Petitioner’s motions for judgment of acquittal
and that there was “sufficient evidence” to support Petitioners
conviction.
vr.
As noted by Petitioner, appellate courts view the
evidence “in the strongest light for the prosecution” to
determine “whether there was substantial evidence to support the
conclusion of the trier of fact.” State v, Richie, 88 Hawai'i 19,
33, 960 P.2d 1227, 1241 (1998) (internal quotation marks and
citations omitted). “Substantial evidence” is “evidence which is
of sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion.” Id. (internal
quotation marks and citation omitted) .?
2 the appellate courts, in review of # denial of a motion for
judgment of acquittal, consider ‘whether, open the evidence viewed in the
Light ost foverable to the prosecution and in full recognition of the
province of the trier of fact, a reasonable mind might fairly conclude guilt
beyond a reasonable doubt.” fudiquet, €2 Hawai'i at 423, $22 P.2d at 1036
(eltations and internal quotation marks omitted). As stated in Pudlguet,
HRPP Rule 29(a) provides in relevant part that a
court on motisn of defendant or of ite own motion shall
order the entry of judgnent of acquittal of one or more
Offenses alleged in the charge after the evidence on either
sise 1s closed if the evidence is snsuffiesent co sustain =
Conviction of such offense cr offenses.” A motion for
(continued,
14
seefoR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER*®*
ee
vir.
Several of the terms used in the statute and
corresponding jury instruction" are defined by statute.
“Benefit” is defined as “gain or advantage, or anything regarded
by the beneficiary as gain or advantage, including benefit to any
other person or entity in whose welfare the beneficiary is
Anterested{.]” HRS § 710-1000(2) (1993). “Official proceeding”
is defined as “a proceeding heard or which may be heard before
any legislative, judicial, administrative, or other governmental
(continued)
“Josoment of acquittel, therefore, “tests the sufficiency of
BheTevidence” with regards to cach elenent of the charged
offense. (state vl) Alston, 75 flaw. (517,] 527, 865 P.2d
[ists] 167 [ta594}T.— then an appellate court reviews the
ottigsency of the evidence, it examines
whether there was substantial evidence to support the
Conclusion of the trier of fact. «. + Substantial
Gvidence as to every material elesent of the offense
Charged is credible evidence which is of sufficient
Guelity and probative value to enable 2 person of
{tion to support. conclusion.
state vil fone, 18 Hawsi't (262,] 265, 892 F.20 [485,} 458
THO5STT Ieitstions and internal quotations omitted) «
ik
‘the Application and the briefs argue in tema of the substantial
evidence standard. For the reasons set forth infra, it was error to heve
Senied the motion for judgnent of acquittal at the end of all the evidence.
Setause there was insufficient evidence to support the verdict, further
analysis of the acquittal denial is unnecessary.
4 the Howas's Standard Jury Instructions states that to prove HRS
§ 7110-10702) (9) beyond a Zeasonable doubt, the prosecution must establish
faut (1) the defendant conferred, offered, ‘or agreed to confer, directly or
[nlrectiy, # benefit upon another person; and (2) the other person was a
ideness of a person that the defendant believed was about to be calle:
Wdeness in any official proceeding: and (3) the defendant did so with the
Yntent to inguce the person to avoid legal process summoning him to testity.
{emay be nated that “while the (Hawai'i Standard Jury
Instructions Criminal (HANIIC)] ‘have been approved fer publication, the
owas Suprene Court has not approved the substance of any of the pattern
[Rstructions{s)” ANIC Introduction, and (the courts) are not bound by then.”
States. Calaie, 107 Hawai'i 452, 463, 114 P.3d 958, 969 (App. 2005) (quoting
f 90 Hawai'i 175, 101 n+9, 977 P24 163, 189°n.3 (RPP.
3583))-
15
‘+ *+f0R PUBLICATION IN WEST’ HAWAI'Z REPORTS AND PACIFIC REPORTERY*#
agency or official authorized to take evidence under oath,
including any referee, hearing examiner, commissioner, notary or
other person taking testimony or deposition in connection with
any such proceeding[.]” HRS $ 710-1000(12). Finally,
“testimony” is defined as “oral or written statenents, documents,
or any other material that may be offered by a witness in an
official proceeding.” HRS § 720-1000(17).
Several other terms require definition for a proper
understanding of the proof required under HRS § 710-1070(1) (b).
Witness is defined as (1) “[olne who sees, knows, or vouches for
something” or (2) “[o]ne who gives testimony under oath or
affirmation [(a)] in person, [(b)] by oral or written deposition,
or [(c)] by affidavit.” Black's Law Dictionary 1633 (8th ed.
2004). “Service” is defined as “[t}he formal delivery of a writ,
summons, or other legal process” and is “[a]lso termed service of
process.” Id, at 1399 (emphasis in original). Relatedly,
*process” is defined as “[a] summons or writ, [especially] to
appear or respond in court{.]" Id, at 1242,
Applying these definitions to the jury instruction,
Respondent was required to prove that, first, Petitioner
conferred, offered, or agreed to confer, directly or indirectly,
something that Zook would consider @ gain or advantage to herself
or to sone other person or entity in whose well-being she was
interested. Second, that Petitioner believed Zook wi
going to
be called to give testimony under oath or affirmation in person,
16
s+*P0R PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER:
by oral or written deposition, or by affidavit in a proceeding
heard by any governmental branch authorized to receive evidence
under oath. Finally, that Petitioner acted with the intent to
induce Zook to avoid delivery of a writ or aunmone calling her to
appear or respond in court.
vitr.
Petitioner does not dispute that there is substantial
evidence that Respondent proved Petitioner offered to confer a
benefit on Zook, a person Petitioner believed was a witness or
about to be called as a witness in an official proceeding. As
mentioned before, in his Application, Petitioner focuses on the
lack of substantial evidence that he acted specifically with the
intent to “[ilnduce that person to avoid legal process summoning
him to testitv(,)” as required under HRS § 710-1070(1) (b).
(mphasis in original.)
1%.
In its Answering Brief, Respondent maintains that there
was sufficient evidence to support the jury’s conclusion that
Petitioner “intended to induce Zook to avoid legal process
sunmoning her to testify” because Respondent had shown that:
(2) Schulte asked Zook in April “not to come back to testify,”
(2) Petitioner was the individual who made the offer, and
(3) “[Petitioner] believed that without Zook as a witn
[Respondent] would likely be unable to prosecute him.”
According to Respondent, Petitioners intent could be
“inferred from the evidence of the statements he made to the
”
‘seaFOR PUBLICATION I WEST’ S HAWAI'T REFORTS AND PACIFIC REFORTER'*#
——
various witnesses{] in conjunction with the circumstances
surrounding his making of the statements.” (Citing State v. Bui,
104 Hawai 462, 467, 92 P.3d 471, 476 (2004). (Citations
omitted.)) Respondent maintains that “(t]he use of such evidence
and inferences r
Jonally drawn therefrom is inevitable because
direct evidence of a defendant's state of mind is rarely
available.” (Citing Pudiguet, 82 Hawai'i at 425, 922 P.2d at
1038. (Citations omitted.))
x.
As a threshold matter, it must be determined whether
Respondent could prove Petitioner’s intent by evidence other than
Petitioner's statements. Our courts have recognized that,
although “a defendant's state of mind can rarely be proved by
direct evidence,” Pudiguet, 82 Hawai'i at 425, 922 P.2d at 1038,
“proof by circumstantial evidence and reasonable inferences
arising from circumstances surrounding the defendant’s conduct is
sufficient. . . . Thus, the mind of an alleged offender may be
read from his acts, conduct and inferences fairly drawn from all
the circumstances.” Bui, 104 Hawai'i at 467, 92 P.3d at 476
(ellipses points in original) (quoting State v. Batson, 73 Haw.
236, 254, 831 P.2¢ 924, 934 (1992) (quoting State v, Sadino, 64
Haw. 427, 430, 642 P.2d 534, 536-37 (1982)) (brackets omitted));
nee alec State v, Yabusaki, 58 Haw. 404, 409, 570 P.2d 844, 847
(1977) (explaining that intent may be proved by circumstantial
evidence and it may be shown by ar
sonable inference arising
from the circumstances surrounding the act).
ae
s++POR PUBLICATION IN WEST'S EAWAI'T REPORTS AND PACIFIC REPORTER'+#
a
The decision in Pudiquet is particularly instructive on
this issue. In that case, the defendant was charged with
Intimidation of a Witness pursuant to HRS § 710-1072 (1) (a)
(1993). the elements of Intimidation of a Witness are similar to
the elements of Bribery of a Witness. HRS § 710-1072(1) (a)
prohibits (1) the use of “force upon or a threat, (2) directed to
a witness or a person [the defendant] believes is about to be
called as a witness in any official proceeding, (3) with the
Intent to influence the testimony of that witness or person.” 82
Hawai‘i at 423, 922 P.2d 1036 (citing HRS § 710-1071(1) (a).
on appeal, the defendant contended that the prosecution
had not proved any of these elements beyond a reasonable doubt.
‘Id. at 424, 922 P.2d at 1037. With respect to the intent
component, the defendant “maintain{ed] that the verbal exchange
between him and [the complainant was] not sufficient to show that
he intended to influence [the complainant's] testimony.” Id. at
425, 922 P.2d at 1038. During the relevant exchange, the
defendant had allegedly yelled at the complainant, *{YJou fucker,
I’m going to get you,” after being informed that the complainant
had filed a police report alleging that the defendant had stolen
merchandise from the conplainant’s store, Id, at 422, 922 P.2d
at 1035, The ICA held that the defendant’s statements, the
surrounding circumstances, and the inferences that could be drawn
therefrom provided “sufficient evidence to support a conclusion
by a reasonable person that” the defendant intended to influence
19
‘+*4F0R PUBLICATION IN MEST’S HAMAI'T REPORTS AND PACIFIC REPORTERS+#
the complainant’s testimony in the theft case. Id, at 425, 922
P.2d at 1038.
Based on the foregoing, it is clear that Respondent
could use evidence other than, or in addition to, Petitioner's
statements to prove his intent to induce Zook to avoid service of
process. Respondent was not required, as Petitioner would have
it, to introduce explicit statements made by the Petitioner
vask[ing] Zook to refuse to receive any subpoena or make herself
scarce in order to evade service of any subpoena.” Rather,
Petitioner’s state of mind could be proved by circumstantial as
well as direct evidence.
xr.
However, viewing the evidence in the Light most
favorable to Respondent, there was not substantial evidence to
support the jury's finding that Petitioner offered Zook money
with the intent to induce her to avoid service of process. HRS §
710-1070(1) (b) requires proof that Petitioner intended to induce
Zook to avoid service of process. In contrast, HRS § 710
1070(1) (c) requires proof that Petitioner intended to induce Zook
to absent herself from a proceeding to which she had been
summoned.
The trier of fact could r
sonably conclude that
Petitioner knew Zook was a witness or could be called as a
witness in the assault case because Schulte told him Zook had
seen the February 28, 2005 incident and Petitioner knew that
20
seepoR PUBLICATION 11 WEST'S HAWAI'Z REPORTS AND PACIFIC REPORTERS**
SSS
‘AnQuin had been arrested for his participation in that incident.
‘The testimony was that Petitioner offered Zook money to “not show
up" or “not show up and testify.” The plain meaning of the
statements attributed to Petitioner is that Zook should not
appear in court to testify about what she witnessed on
February 28, 2005. Hence, based on the evidence, the jury could
reasonably infer that Petitioner sought to avoid punishment in
the assault case by preventing the presentation of eye-witness
testimony.
However, the leap from asking a potential witness to
“not show up” or to “not show up and testify” to the conclusion
that a defendant thereby intended to induce that witness to avoid
service of process is untenable in light of the structure of HRS
§ 710-1070. “(T]he starting point for interpreting a statute is
the language of the statute itself.” State v, Moniz, 69 Haw.
370, 374, 742 P.24 373, 376 (1987) (citation omitted). Moreover,
“where the language of the law in question is plain and
unambiguous,” courts are obligated to “give effect to the law
according to ite plain and obvious meaning.” Mikelson v. United
Ass'n, 108 Hawai" 358, 360, 120 P.3d 257, 259 (2008)
{citation omitted). Here, the language of HRS § 710~1070(1) (b)
is plain and unambiguous. Neither party argues to the contrary.
Under a plain reading of the statute, substantial
evidence was necessary to support Petitioner's conviction for
inducing a witness or a person Petitioner believed was to be
called as a witness “to avoid legal process summoning him to
21
‘+*FOR PUBLICATION I WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**#
” RS § 710-1070(1) (b). In that regard there was
testityl.
insufficient evidence to lead a person of reasonable caution to
reach the particular conclusion that Petitioner intended to
induce Zook to avoid service of process under HRS § 710-
1070 (1) (b)
There is a paucity of facts regarding evidence of an
intent to “induce . . . avoid{ing) legal process{, ive. a
subpoena, ] summoning [the witness) to testify.” Id. There is no
evidence of what particular subpoena was the subject of the
indictment. There is no evidence of when any relevant particular
subpoena was issued or served. No subpoena ordering Zook to
appear at any official proceeding is on the court's exhibit list.
‘The evidence fails to indicate what subpoena or subpoenas were
the alleged subject of Petitioner’s culpable state of mind.
There is no evidence of what “official proceeding” was the
subject of the bribery indictment or of Petitioner's state of
mind.!* The record on appeal does not contain any subpoena
ordering Zook to testify at any official proceeding.
Based on the testimony and sequence of events, there is
testimony that a subpoena for a preliminary hearing to be
\ Respondent's Answering Brief appears to indicate that the bribery
case was focused on Zook’s potential appearance at Petitioner's trial.
(lPetitioner] knew Zook was a percipient witness to the assault and ber
absence from his trial would bean effective means of undermining the
prosecution's case against him.”) However, the analysis of the sufficiency of
fhe evidence with regard to the charge under HRS § 710-1070(1) {o) remain the
ane whether one is focused on Zook’s appearing (1) at the preliminary
Rearing, (2) before the Grand Jury on the assault case if in fact Zook
Sppeared at thst proceeding, or (3) st trisl,. In sil three scenarios, there
IS Insuttictont evidence to prove that Petitioner intended to induce Zook to
fold service of process sumoning her to testify.
22
seeFOR PUBLICATION 8 WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER***
Sees
conducted on March 31, 2005 had been served, prior to the alleged
offer by Petitioner. That hearing was apparently postponed for a
month. The subpoena itself is not in evidence. Petitioner's
alleged monetary offer was based on Zook not appearing to
testify, rather than on her avoiding the service of @ subpoena.
‘The Application does state that “(i]n mid-April,
Schulte approached Zook and asked that she not return to Hawai‘
to testify in [the assault] case.” (Emphasis added.) The
testimony to which the Application cites, elicited during
Respondent’s direct examination of Zook, is as follows:
0. (Respondent). {B)efore you left the islands here
in June’ (2008) and sonetine after you made your initial
Feports to the police regarding this incident [(the alleged
fessule) |, a
cone back’ eo eatity in [the assault] case?
R.(aook. Yan.
Q. Youhave an ides when this may have happened?
KR. Tt happened in April.
Q: Any part of April that you recall?
Rl Couia'have been (the) micdle of April.
9; And wno was this person who approached you?
Rl my frtenal,] (Schulte)
Q! And, what did she tell you?
A. Sno told me that ner ex-toyfriend{, Nolta,] knew
‘the people Iwas planning on testifying against...
[Schulte] told me that these gentenen told (Nolta] ‘to tell
hher to tell us if we didn’t testify we would be given money
(emphases added.) Without more, the exhortation “not to cone
back” is Just that -- a request that Zook not appear at trial
without regard to whether she had (or had not) been served with a
subpoena. Hence, that statement would not be sufficient to
sustain a conviction under HRS § 710-1070(2) (b) .*
Although not cited by the parties, cases from cther jurisdictions
provide sone examples of what conduct would support a finding that a defendant
Etta with the intent to induce a witness or porential witness to avoid
Seevice of process. For example, the Cauzt of Appeals of Texas affirmed @
(continued.
23
‘s++f0R PUBLICATION IN WEST'S HAKAI'T REPORTS AND PACIFIC REPORTERS**
The record reflects that Petitioner asked Schulte to
request Zook not to come to court” and not “to show up.” Nolta
testified Zook’s response “vas that she was subpoenaed,” and
therefore, had to testify. There is no mention at all by
Petitioner of avoiding service of a subpoena. There is also
nothing in the evidence circumstantially indicating Petitioner's
intent was to have Zook avoid impending service. Under the
circumstances, a person exercising reasonable caution could not
conclude that there was substantial evidence that Petitioner
intended that Zook avoid being served with a subpoena compelling
her to testify against him, as opposed to simply not “showing up”
to testify against hin.
xtr.
a
In its Answering Brief Respondent argues that the jury
could have “rationally concluded” that (1) Petitioner “knew Zook
vas a percipient witness to the assault and her absence from his
trial would be an effective means of undermining Respondent’ s}
case against him"; (2) “people generally know that they are
subject to arrest for not appearing at a trial after accepting a
subpoena”; (3) Petitioner “believed that without Zook as a
continued)
Gefendant’'s conviction for tampering with @ witness in violation of Vernon's
Texas statutes and Codes Annotated § 36.05(a) (3) (1997), where the defendant
(2) informed the witness that she could avoid being subpoenaed if she remained
100 miles outside of Dallas, (2) paid her living and travel expenses to leave
Dallas, (3) told the witness not fo reveal where she was staying, and (é) paid
for her to return to Dallas at the conclusion of the trial, Amold v, State,
6 S.w36 93, 96 (Fex. Ct. App. 2001)
24
“t++PoR PUBLICATION IN WEST'S HAVAI'T REFORTS AND PACIFIC REFORTER**
Oo
witness [Respondent] would be unable to prosecute hin":
(4) Petitioner ‘would not have expected Zook to risk running too
far afoul of the law in order to assist him or jeopardize her ovn
freedom by not appearing at his trial after she accepted a
subpoenal,]“" so “the jury could have reasonably inferred that
ner] made the offe wins 200) kn
would not be subject to arrest for not appearing to testify at
his trial if she avoided being served with a subpoena” (sone
emphasis added); (5) “{bly avoiding service of a subpoena Zook
would assist [Petitioner] in accomplishing his goal of derailing
[Respondent's] assault case against him without facing the
specter of arrest for ignoring a subpoena”; (6) “not returning to
Hawai'i would have been an effective means for Zook to avoid being
served with a subpoena, and thereby preventing her from being
legally obligated to appear at trial to testify against
[Respondent]; and (7) the “lack of evidence that [Petitioner]
made any statements to the effect that Zook should avoid
receiving legal process” does not constitute a failure to prove
that intent because (a) Petitioner “cites no authority that holds
that such statenents aze the only evidence upon which his intent
| ss could be proved” and (b) “any such authority would seem to
run counter to the spirit of [HRS] § 710-1070(2) (b), which . . .
is directed at preventing ‘the harm that inheres in the attempt
to interfere with the course of the official proceedingl,1'”
(quoting Connentary to HRS § 710-1070). Respondent's brief fails
to set forth how the jury could draw such inferences or
25
s+spoR FUBLICATION JN WEST'S HAWAI'I REPORTS AND FACIFIC REFORTER®
ee
conclusions from the evidence. Even when viewing the evidence in
the light most favorable to Respondent, the conclusions and
inferences offered to justify Petitioner’s conviction for bribery
are not supported by the record.
8
As to conclusions (1) and (3), although the jury could
reasonably infer from the evidence that Petitioner knew Zook
might be a witness in the assault case and that Respondent’s case
against Petitioner would be weaker if a “percipient witness” was
not available to testify, that does not lead reasonably to @
conclusion that Petitioner made the alleged offer with the intent
to induce Zook to avoid service of process as opposed to simply
not appearing at trial.
As to conclusion (2), Petitioner argues Respondent
improperly contends that in the “absen{ce of] any evidence, the
jury could essentially take judicial notice of [an] unspecified
law to conclude that people generally know that they are subject
to arrest for not appearing at a trial after accepting 2
subpoena.”"” Petitioner argues this conclusion “constitutes pure
speculation” and cannot be deemed sufficient evidence to support
Petitioner's conviction, In any event, assuming, arguendo, that
people “generally know” a person who does not appear pursuant to
1 Respondent does not cite authority to support the proposition that
the jury nay take "Jusieisl notice” of any matter
26
sespoR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER**#
‘@ subpoena may be arrested, that would not support the conclusion
that there was evidence Petitioner intended for Zook to “avoid”
being served, as the indictment alleges.
As to conclusion (4), Petitioner maintains that
absolutely NO evidence was presented upon which the Jury
Geuid conclude whet [Petitioner] ‘could or could not have
Sxpected Zook to do, Nor was any evidence presented upon
tunieh the jury could have inferred chat (Petitioner's) offer
ties premised on his purported belief as to what Zook would
Knew about ner exposure (Luts, that she could
Prosecuted for failing to appear at trial if
Rervice of 2 subpoena). + «+ Any inferen
Jory Based on this type Of “reasoning” c
Bpeculation, ‘rather than a conclusion ba
evicence.
(capitalization in original.) The record is devoid of any
evidence that could support conclusion 4, The evidence showed
that Zook and Petitioner did not know each other. There was no
evidence of any direct communication between Petitioner and Zook,
much less any discussion regarding 2ook’s potential criminal
Liability and “how far” she would be willing to go to help
Petitioner. Thus, as Petitioner correctly observes, there was no
evidence “upon which the jury could conclude what [Petitioner]
could or could not have expected Zook to do.” Based on the
evidence adduced, and without resorting to pure speculation, the
jury could not reach any conclusion about what Petitioner would
have expected Zook to do to help him.
Also, there was no direct or circumstantial evidence of
Petitioner's intent to have Zook avoid receipt of a subpoena.
‘he only evidence adduced at trial by Respondent was that Zook
had already been subpoenaed when she received the alleged offer.
20
sespon PUBLICATION IN WEST'S EAWAI'T REPORTS AND PACIFIC REPORTERS+®
a
Assuming that only Petitioner’ belief as to whether Zook had not
yet been subpoenaed was relevant, there is no evidence that
Petitioner believed Zook had not yet received a subpoena.
As to conclusion (5), assuming, arauende, that Zook
could have avoided any legal obligation to testify at
petitioner's trial if she avoided being served with @ subpoena,
there is no mention of avoiding subpoenas made by Petitioner in
the offer that was conveyed. Respondent does not cite to any
evidence that Petitioner knew or believed 2 subpoena had yet to
be served to compel Zook's appearance at the assault trial and
thus intended to induce Zook to avoid a subpoena
As to conclusion (6), again the evidence adduced at
trial was that Zook had already been subpoenaed (although this
evidence is ambiguous as to what subpoena was involved) when she
received the offer. There was no evidence that at the time of
the offer Petitioner knew Zook was planning on leaving the
tn its Anguering Brief Respondent implies that Petitioner sought
to have Zook avoid a trial subpoer
ton the other hand, the cumblative force of the evidence and
the reasonable inferences that could be drawn therefrom when
properly viewed in the light most favorable to the
Prosecution support the conclusion that. (Petitioner) made
Rls offer with the intent to induce Zook to avoid being
Served with a subpoena for his upcoaing assault trial.
Record, [Bone], 76 sawai't [at] 265, 892 P-2d (at) 458.
Even focusing exclusively on took's potential appearance at trial, the
evidence viewed in the light most favorable to Respondent does not support
this conclusion. The direct evidence of Petitioner's state of mind, Le, Me
Statements, merely indicates that he intenced for Zook not to appear at triel.
Agzeovers there 1s no cireunstantial or other evidence that would contradict
the'plain aeaning cf Petitioner's statesents and lead one to conclude that
Whee" Petitioner sctually intended was for Zook to avoid being served with @
‘pubpoena
28
‘seePOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS**
ee
jurisdiction or that he had asked her to leave or that he
believed a subpoena had yet to be served on her. ‘Thus, the
conclusion that Zook could have successfully avoided service of
process by leaving Hawai'i cannot, without more, prove that
Petitioner intended to induce Zook to avoid service of process.
Finally, as to conclusion (7), Petitioner responds that
[Respondent] cites to no non-statenent evidence of
[Petitioner's] purported intent that Zook should avoid receiving
any subpoena.” Moreover, as observed supra, Respondent’ s
suggested course, which would essentially allow any evidence of a
bribe to satisfy any of the three subsections under HRS § 710-
1070(1), would “run counter” to the legislature’s intention to
create three distinct culpable acts. See Commentary to HRS
§ 710-1070 (stating that “each part of the process [of obtaining
witness testimony) is of unique importance in assuring the
availability and integrity of the witness”).
xrit.
To read HRS § 710-1070(1) (b) as encompassing statements
merely requesting that a potential witness “not show up” at trial
would broaden HRS § 710-1070(1) (b) beyond its express language
and blur the distinction between inducing @ witness to avoid
receiving a summons to testify and inducing someone who has b
summoned to disobey such 2 sunmons. For, if asking a witnes:
snot to show up” at a trial could be used to support a conviction
for inducing a person to avoid service of process, HRS $ 710-
29
‘s+eFOR PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REFORTERS*#
1070(1) (b) would swallow up HRS § 710-1070(1) (c), contrary to the
plain language of the statute. Thus were this court to interpret
HRS § 710-1070(1) (b) as urged by Respondent, such interpretation
would render the other subsections of HRS § 710-1070(1) a
nullity. See Citv & County of Honolulu v. Hsiung, 109 Hawai’
159, 173, 124 P.3d 434, 448 (2005) (noting that this court has
held that “our rules of statutory construction requires us to
reject an interpretation of @ statute or an ordinance that
renders any part of the statutory language a nullity” (internal
quotation marks and citation omitted)). HRS § 710-1070(1) (c)
would then be rendered superfluous, in violation of the “cardinal
rule of statutory construction” that, if possible, “no clause,
sentence, or word shall be construed as superfluous, void, or
insignificant if @ construction can be legitimately found which
will give force to and preserve all words of the statute.” In xe
Waikoloa Sanitary Sewer Co., Inc., 109 Hawai'i 263, 273, 125 P.3d
484, 494 (2005) (quoting Coon v, City 6 County of Honolulu, 98
Hawai'i 233, 259, 47 P.3d 348, 374 (2002)) (internal quotation
marks omitted). To hold otherwise would also result in an absurd
interpretation of the express language of HRS § 710-1070(1) (b).
See Tauese v, State, Dep't of Labor & Indus, Relations, 113
Hawai'i 1, 31, 147 P.3d 785, 815 (2006) (stating that this court
is “bound to construe statutes so as to avoid absurd results”
(internal quotation marks and citation omitted)).
30
[FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS*®
xiv.
For the foregoing reasons, the ICA gravely erred in
upholding Petitioner’s conviction for bribery under HRS § 710-
1070(2) (b), and, therefore, the ICA’s August 2, 2007 and the
court’s March 28, 2006 judgments are reversed as to the bribery
count.
As Petitioner has not contested the ICA's judgment with
respect to Cr. No. 05-1-0661, the ICA’s judgment is affirmed in
all other respects.
Phyllis J. Hironake, Deputy
Public Defender, for
petitioner /defendant-
appellant.
Donn Fudo, Deputy Prosecuting
Attorney, City and County
of Honolulu, for
respondent /plaintiff-
appellee.
31
Gro—
Rh Peerme-e—
T=
Game Rustin he
|
b2e36f25-1e5f-4436-bf0a-ea6b8bb145a7 | Flores v. The Rawlins Company, LLC. S.Ct. Order Granting Motion for Reconsideration in Part, filed 03/06/2008 [pdf], 119 Haw. 287. S.Ct. Order Denying Motion for Reconsideration, filed 03/27/2008 [pdf], 117 Haw. 335. | hawaii | Hawaii Supreme Court |
‘s+ FOR PUBLICATION IN WEST'S HAWAL REPORTS AND PACIFIC REPORTER “
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00"
ALBERT FLORES and DONALD R. RAPOZA, Plaintiffs-Appellees
THE RAWLINGS COMPANY, LLC, Defendant-Appellant
02
wo. 28124 8
APPEAL FROM THE FIRST CIRCUIT COURT —
(CIV. NO. 04-1-2388) =
2
FEBRUARY 1, 2008
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY DUFFY, Ju
Defendant-Appellant The Rawlings Co., LLC [hereinafter,
Rawlings), appeals from the August 1, 2006 interlocutory order of
the circuit court of the first circuit,’ denying Rawlings’ s
motion for sunmary judgment in this action initiated by
Plaintiffs-Appellees Albert Flores and Donald Rapoza
(hereinafter, collectively, Plaintiffs] against Rawlings. The
case was subsequently transferred to this court pursuant to
Hawai'i Revised Statutes (HRS) § 602-58(b) (1) (Supp. 2006) .
Although the heart of Plaintiffs’ claim is that
Rawlings violated the registration requirement for collection
‘The Honorable Karen §.S. An presided over this matter
qq
TL EOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_
agencies under HRS § 4438-3(2) (1993), this appeal also concerns
two threshold issues regarding whether Plaintiffs may bring this
claim: (1) whether Plaintiffs have established injury within the
meaning of HRS § 480-13 (Supp. 2004), and (2) whether Plaintiffs
are “consumers” within the meaning of HRS § 480-13. The circuit
court, in denying Rawlings’s motion for summary judgment, found
that these prerequisites for bringing suit had been met and that
Rawlings was subject to the registration requirement of HRS §
4438-3(2).
On appeal, Rawlings argues that: (1) the circuit court
erred in ruling that Plaintiffs’ respective payments of what
Rawlings terms “valid obligations” constituted “actual injury”
sufficient to give them standing to bring suity (2) the circuit
court erred in ruling that Plaintiffs were “consumers” under HRS
chapter 480, because the transaction involving Rawlings was a
recovery of subrogation/reinbursement claims arising from tort
rather than a consumer transaction concerning the delivery of
medical services; and (3) the circuit court erred in ruling that
Rawlings was recovering “debts” within the meaning of HRS chapter
4438, such that it was a “collection agency” subject to that
chaptt
Based on the following, we vacate the circuit court’s
interlocutory order and remand to the circuit court to enter an
order granting summary judgment in favor of Rawlings.
2
* FOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER ***
1. BACKGROUND
A, Factual Backeround
Rawlings is @ Kentucky-based company that contracted
with the Hawaii Medical Services Association (HMSA) to provide
subrogation and “claims recovery services.” As part of the
agreement, Rawlings would retain a portion of the amount
recovered. In 2001, Rawlings recovered money from 191 Hawai'i
residents. Since 2001, Rawlings has recovered money from Hawai'i
residents as follows: 288 in 2002, 309 in 2003, and 347 in 2004.
Rawlings has never registered as a collection agency with the
Director of Commerce and Consumer Affairs.
Plaintiffs were both injured in separate incidents,*
and subsequently sought medical treatment for their injuries -~
Flores in April 2001, and Rapoza in May 2002. Prior to receiving
treatment, Flores and Rapoza were each required to sign a
contract undertaking legal responsibility for payment and
assigning any insurance benefits each might receive to the
treating hospital.
Flores and Rapoza are both menbers of employer-based
medical benefits plans administered by HMSA.? Pursuant to their
+ Rapozs slipped and £611 due to some Liquid on the floor at Foodland
in Pearl City, on April 11, 2002. Flores was assaulted on April 3, 2001
2 lores was covers’ exployee of the Theo H. Davis & Company,
Ltd.) Rapoza’s coverage was as dependent under his wife's plan, provided by
the Unied States Office of Personnel Management ("ORM")
3
‘+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND. REPORTER.
respective medical benefits plans, certain of their medical bills
were paid by HSA. Shortly after Plaintiffs received treatment,
HUSA demanded that Plaintiffs sign agreements stating that any
money HMSA might pay for their treatment was an “interest free
loan” from HMSA to them.*
After their accidents, Plaintiffs pursued tort clains
against the third parties allegedly responsible for their
injuries. Subsequently, Rawlings sent “Notice of Lien” letters
to Plaintiffs’ attorneys giving notice that EMSA was asserting a
claim for the benefits it had paid on behalf of Plaintifts.* The
letters essentially stated that HMSA claims @ lien on the anounts
it has paid out in medical benefits on behalf of the insured,
« sapors and Flores signed identical forms, which included the
following section entitled "Lown Agreenent Between You and WMG: Please Read
the Following Carefully"!
Your plan will not cover your medical expenses if someone else cused or
nay have caused your injury or illness because that person may be
Fesponsible for paying your expense
Since it may take a long time to determine whether any other person is
responsible for your injury or illness, you may request MUSA to pay your
plan benefits as an interest-free loan until that question is resolved
Gnd the other person takes payment, If you accept our lean, you sgree
fo notify HMSA when ® financial settlement is reached, and yoo agree
‘that ony reimbursement or recovery you receive from any person(s)
responsible for your injary or lliness, must Eitat be veed to repay your
have caused your injury or illness, you do not ha
Proper docunentation must be sent to HUSA for verification.
By signing below, 1 request EMSA to pay my medical expenses as a loan
hd agree to the above loan agreement terns
5 Rawlings sent the letter to Flores’s then-counsel on July 5, 2002,
‘and to Repoze's coungel on February 7, 2003.
‘
FOR PU HAWATLREPORTS AND PACIFIC REPO!
"ATION IN WEST"
which applies to any amounts recovered from notified third
parties, and asks for notification of any such recovery.
After Plaintiffs settled their claims against the third
parties, they each submitted money to Rawlings to settle the HNSA
claims on @ compromise basis.’ Plaintiffs assert that both
Flores and Rapoza did not admit that either “owed any money or
that (Rawlings’s] demand was based on a valid or meritorious
claim"? In separate release agreements on Rawlings’s
«me text of the letter written to Flores is as follows:
four client has paid medical benefits on behalf of its menbers as the
Fesult of the accident referenced above. This letter shall serve a5
fotice to you of the lien our client ts claiming for these benefits
‘this Lien applies to any amount now due or which may hereafter become
Payable out of recovery or recoveries collected or vo be collected,
Shether by Judgment, settlenent or compromise, fon any party hereby
Mo settlement of the claim, which includes medical expenses paid by our
Client, should be made prior to notifying our office of the potential
etlement and reaching an agreenent for reimbursement of these
nefits.
we are notifying all interested parties of our client's clain/lien and
Feqoest that you provide all pertinent information regaraing the adverse
and their insurance carrier
Jo confirm your representation of our client's meaber and provide
the requested information by completing snd returning the encloses form.
> aus paid medical benefits on behalf of Flores in the anount of
$8,149.68. Flores received $18,006.09 in settlement of his claim against the
third-party tortfeasor on March’ 22, 2004, Flores, through his attorney, paid
§€,076-95 to Rawlings
‘ga paid medieai benefits on behalf of Rapoza in the amount of
$4,399.97, Rapoza received §23,000.00 in settlement of his claim against the
third-sarty tortfeasor on Mazch'12, 2003. Rapoza, through his attorney, paid
'$2,200-00 to Rawlings.
+ the record ie devoid of any evidence that Flores or Rapoza made any
adaission of owing money oF thet Rawlings's desand wae valid. As support. for
(cont insed.--)
WAIT REPORTS AND PACIFIC REPORTER
FOR PUBLICATION IN.
letterhead, both in December 2004, HMSA released Flores and
Rapoza “fron any and all claims and liens for subrogation or
reimbursement for medical expenses which the undersigned now has
or which may hereafter accrue as a result of the accident
Procedural History
On December 28, 2004, Plaintiffs commenced this action
in the first circuit court, alleging claims under HRS chapters
4365,? 4438, and 480. Rawlings admitted that it had not
registered as a collection agency under HRS chapter 443B, which
it contends does not apply to its business activities. On June
1, 2006, Rawlings moved for summary judgment, arguing that:
(1) Plaintiffs could not show any injury from Rawlings’s alleged
violation of chapter 4438; (2) Plaintiffs were not “consumers”
under chapter 480; and (3) Rawlings was not required to register
under HRS § 4438-3 because it did not collect “debts” from
#1. -continued)
this fact, Plaintiffs point to the Brief settlenent letter and an email
Ceamunication from their counsel to Rewlings “urgling] [Rawlings] te
Feconsider" the Plaintiff's "reasonable offer to reduce HINSA’s 1ien by SOt to
avoid any litigation’... ."" The settlement letters did not Anclude any
Suniscions. The letter settling Rapoza’ s claim stated sinply that “(tins
letter will confirm our agreenent to settle the above referenced matter,”
hich was referred to above by inclusion of the patient nane and date of loss.
‘The letter confirming settionent of Flores’ claim stated! “i have discusses
your offer with our client and they will agree to reduce their lien and accept
£5,99.91," an anount that was reduced in further negotiation. Likewise,
further cenminications between Plaintiffs and Rawlings fail to evidence
acnission by Plaintiffs that they owed money of that Rawlings’ s demand ¥
Based on a valid claim.
* Xt 4s not clear what claim was brought under HRS chapter 4368. In any
event, any such claim ie not part of this sppea!
‘
++ FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER ***
Plaintiffs. Plaintiffs countered that: (1) they showed injury
because they paid money to Rawlings in direct response to
Rawlings’s illegal acts of demanding payment; (2) they were
“consumers” because the money Rawlings claimed that they owed was
money owed for the purchase of personal healthcare services; and
(3) the money paid was a “debt” because it arose from Plaintiffs’
own pre-treatment agreenents with their personal health care
providers.
Rawlings’s motion was argued on July 18, 2006. The
circuit court denied the motion, reasoning, in relevant part:
chapter 4438 . . . is broad and it ains to eliminate
abusive debe collection practices by collectors «
‘Chapter {438 and the cerm “consumer” in [cjhapter 480,
read in the context of thelr purpose and reading the
provistons together, cannot be (as) Limited as” (Rawlings)
Seeks co argue.
Section 4438-3 clearly says that a collection agency
cannot collect of try to collect a debt without first
registering.
Section 4438-20 says that any viclation of (c]hapter
14438 by such on agency 18 actionable under [s]ection 480-2
low, the relevant alleges violation here is the
collection of an alleged dest without first having
Fegistered in Hawai. The Court agrees that when, pursuant
toan agreenent, EMSA paid medical bills for [P]laintifts,
then [Rawlings] by contract collected out of [Pllaintifts!
Settlenente for those nedics) bills, (P]laintifts were
actually injured.
‘no Court fundamentally agrees with [Plaintiffs] that
the term "debt" and “consumer” can and should be read to
apply to [Pllaintiffe" payment of money arising out of the
trantacticn, under our facts, of consensual arrangenent for
poynent for delivery of medical services.
on August 1, 2006, an order denying Rawlings’s motion for summary
judgment was entered. On August 30, 2006, the circuit court
signed an order permitting Rawlings to take an interlocutory
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
appeal under HRS § 641-1(b) (1993). Rawlings filed its opening
brief on January 10, 2007, raising the same three points of error
raised in its motion for summary judgment. The case was
subsequently transferred to this court pursuant to § 602-
58(b) (1), by order of the court.
Oral argument was held on October 17, 2007. In
addition to the arguments made in their appellate briefs, at oral
argument Rawlings made several additional arguments about the
nature of the amounts owed by Plaintiffs to HMSA, discussed
herein. Rawlings also brought to the court’s attention several
egal authorities not cited in their appellate briefings,
including: a recent decision of the Washington Court of Appeals,
Stephens v. Omni Insurance Co,, 159 P.3d 10 (Wash. Ct. App.
2007); 2 1987 informal staff opinion of the Federal Trade
Commission; and an unpublished disposition of the United states
District Court for the Middle District of Louisiana, Pantin vs
‘The Rawlings Co., Case 3:03-cv-00116-JVP-CN (M.D. La. Apr. 13,
2005).
‘The standard for granting # motion for summary judgment Le
settled?
(Slumary judgment is appropriate if the plesdings,
depositions, answers to interrogatories, and
sanlssions on file, together with the affidavits, if
any, show thet thefe is no genuine issue as to any
Baterial fact and that the moving party is entitled to
e
Judgnent as a matter of law, A fact ia material sf
proof of that fact would have the effect of
ishing of refuting one of the essential elements
Sf a cause of action or defense asserted by the
parties. The evidence mist be viewed in the light
Rost favorable to the non-moving party." In other
Sods, we must view sll of the evidence and the
Inferences dravn therefrom in the Light mest favorable
to the party opposing the motion.
Ad. (citations and internal quotation marks omitted)
Goon v. City and County of Honolulu, 98 Hawai'i 233, 244-45,
Fr3a 348, 389-60 (2002) (second alteration in origina)
Kauv. City and County of Honolulu, 104 Hawai'i 468, 474, 92 P.3d
477, 483 (2004).
B. Statutory Interpretation
Statutory interpretation is “a question of law
reviewable de novo.” State v. Levi, 102 Hawai'i 262, 285, 75
P.3d 1173, 1176 (2003) (quoting State v. Arceo, 84 Hawai'i 1, 10,
928 P.2d 843, 852 (1996)). This court's statutory construction
is guided by established rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language 18 plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, Amplicit in the task of
Statutory construction ss our foremost cbligation £
ascertain and give effect to the intention of the
Iestsleeare, which 1s to be obtained primarily from the
Language contained in the statute itself. fourth, shen
there 1s doubt, doubleness of meaning, of indistinctiveness
or uncertainty of an expression used in a statute,
ambiguity exists
Peterson v. Hawaii Elec. Light cov, Inc., 65 Hawai'i 322, 327-28,
944 P.2d 1265, 1270-71 (1997), superseded on other arounds by HRS
§ 269-15.5 (Supp. 1999) (block quotation format, brackets,
citations, and quotation marks omitted).
In the event of ambiguity in a statute, “the meaning of
the ambiguous words may be sought by examining the context, with
which the ambiguous words, phrases, and sentences may be
compared, in order to ascertain their true meaning.” Id.
(quoting HRS § 1-15(1) (1993)). Moreover, the courts may resort
to extrinsic aids in determining legislative intent, such as
legislative history, or the reason and spirit of the law. See
HRS § 1-15(2) (1993).
TIT. pIscussION
AL Raul “collection Agency" th:
Alleged to be Due and Oving Within the Meaning of HRS §
Ags
Rawlings argues that the circuit erred in holding that
Rawlings is a debt collector subject to HRS chapter 4438, because
it does not recover “debts” as defined by HRS § 4438-1.
HRS § 4438-3 provides that
No collection agency shall collect or attempt to
collect any money or any other foras of indebtedness alleged
to be due and owing from any person who resides or does
business in this State without first registering under this
chapter
10
"++ FOR PUBLICATION
wes’
IAWAI'I REPORTS AND PACIFIC REPORTER ***
HRS § 443B-3(a).° Tt is not disputed that Rawlings did not
register within the meaning of HRS chapter 4438. Therefore,
the relevant issues in determining whether Rawlings was
required to register under HRS § 4438-3(a) are (1) whether
Rawlings is a “collection agency” and (2) whether Rawlings
“collect [ed] or attempt [ed] to collect any money or any
other forms of indebtedness alleged to be due and owing”
from a Hawai'i resident.
Rawlings is a “Collection Agency.”
Rawlings’s principal argument is that it is not subject
to the registration requirement because it does not collect
“debts.” To the extent this argument relies on federal law,
however, it is misconceived. Because regulation of a “collection
agency” under chapter 4438 only requires that a “person” -~ Like
Rawlings -- “offer{] to undertake or hold{] oneself out as being
able to undertake or does undertake to collect for anothe
person, claims or money due on accounts or other forms of
indebtedness,” HRS § 443B-1 (1993) (emphasis added), for a fee,
\ RS § 443-3(b) explaina that “(rJegistration shall inclu
(2) Submission of # complete application for registration:
{2} Souaission of & certificate of good standing or 2 certificate of
authority from the business registration division:
(3) Payment of appropriate fee:
(4) Filling ang seintenance of a bond in the anount prescribed in
(5) Maintenance of a regular active business office in the State: end
(6) Designation of a principal collector, as prescribed in section
Besar
n
9+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,
it is not required that the collection agency at issue collect
‘debts.” Rawlings has not argued that it does not collect
“claims or money due on accounts,” but only that it does not
collect “debts.” Furthermore Rawlings did not rebut this
argunent in its reply brief, although it was clearly raised by
Plaintiffs in their answering brief.
Rawlings’s misreading of our statute appears to be
based on an erroneous supposition that the federal Fair Debt
Collection Practices Act (POCPA) has the same coverage as our
law, which is evidenced by Rawlings’s extensive reliance in its
briefings on federal caselaw interpreting the FOCPA. Hawaii's
law defines “collection agency” more broadly than the federal
law, which regulates entities it defines as “debt collectors.”
Whereas 2 “collection agency” in our law includes persons who
collect claims or money due on accounts, the FOCEA definition of
“debt collector” is limited to collection of “debts.” gee 15
U.S.C. § 1692a(6) (2006) ("The term ‘debt collector’ means any
person who uses any instrumentality of interstate commerce or the
ails in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to
S Neither is HRS § 4438 jistration requirenent, linited to
debt collection, but expressiy prohibits any unregistered collection agency
fron “collect(sng] or attempt [ing] to collect any Roney or eny other
indebtedness alleged to be due and owing sss 1 HRE § 4438-3. (empha
adsed) See intra.
2
FOR PUBLICATION IN WEST'S HAWAET REPORTS AND PACIFIC REPORTER
collect, directly or indirectly, debts owed or due or asserted to
be owed or due another.” (Emphases added.)).
The statutory structure of the Hawai'i Revised Statutes
reinforces the view that HRS chapter 4438 is broader in its
coverage that the federal statute. Hawai'i law contains a
separate chapter entitled “collection practices,” HRS chapter
4800, that is “intended to cover collection activities by debt
collectors in collecting consumer debts.” HRS § 4800-1 (1993).
Unlike chapter 4438, chapter 480D specifically covers “debt
collectors,” which are defined as “any person, who is not a
sollection agency, and who in the regular course of business
collects or attempts to collect consumer debts owed or due or
asserted to be owed or due to the collector.” HRS § 4800-2
(1993) (emphasis added). Both chapters were passed by the
legislature in the sane act. 1987 Haw. Sess. 1, Act 191, at 423-
30. The differences between the two chapters provide a clear
indication that the legislature intended the regulation of
“collection agencies” in HRS chapter 4438 to be distinct from its
regulation of “debt collectors.” ‘Therefore, federal law
interpreting the latter term cannot be interpreted to cover
“collection agencies."
Rawlings argues that federal law should set the precedent in teu of
Law on point. However, federal law does not set precedent merely
based on an absence of Hawai'i case law. Foreign law can be persuasive in
Ranai's, but only when there ts a basis for its application. See
(continued. ..)
a
++ FOR PUBLICATI
IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER
The critical distinction between our law and the
federal law is that our statute is targeted towards those who
collect “claims or money due on accounts or other forms of
indebtedness” while the federal law is limited to those who
collect “debts.” The terms “claims” and “money due on accounts”
are not defined in HRS chapter 4438 and, as such, should carry
their ordinary meanings. It is apparent that Rawlings was
collecting “claims” that HNSA hed against Plaintiffs. Even
Rawlings characterized its collection activity in this manner,
stating in its opening brief that it had sent the Plaintiffs’
attorney “notice that HNSA was asserting a claim for the benefits
HMSA had paid on behalf of each (Plaintiff) for the injuries
sustained as a result of the third-parties’ actions.” (Emphasis
added.)
2 (. continued)
Fresh Prodice await. Inc, v. Way, 112 Hawai'i 489, 507 0.33, 146 P.3d
Toe, 1084 N33 (2006) (AIthough thie court has used federei precedent on
cccasion in the past to guide its interpretation of state... laws, such
Consultation is solely to aid interpretation and only makes sense wnere the
statutory language is the sane or similar in ail relevant respects.” (Citation
saitted.|)
the term “claim” is defined in the following ways relevant to this
issue: (1) “The assertion of an existing right; any right to peyment oF to an
equitable remedy, even if contingent or provisional"; (2) A demand for money,
Property, or s legal renedy to which one asserts a right’. <<" and (3) san
interest or renedy recognized av law. sy. a zea (th
ed, 2004) (some definitions are not Anciuded herel. This extreerdinee sty
broad definition would appear to encompass the amoints that Rawlings sought to
Fecover from Plaineiffs on behalf cf HRA.
u
s+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
Rawlings Collected "Money or Any Other Forms of
Indebtedness Alleged to be Due and Owing.”
A collection agency that collects or attempts to
collect “any money or any other forms of indebtedness alleged to
be due and owing” from a Hawai'i resident must register. HRS §
4438-3. ‘The moneys collected from Plaintiffs by Rawlings would
appear to fit under this broad category.
At oral argument Ravlings asserted, for the first tine,
that the amounts it collected were not “due and owing,” and thus
not subject to the registration requirement of HRS § 4435-3.
Separate and apart from the fact that Rawlings failed to assert
this argument in the circuit court, it fails on its merits.
Rawlings did not present a clear factual argument for
its assertion that the money it had collected from Plaintiffs was
not,
Lieged to be due and owing.” At different pointe Rawlings
recast its argument into separate assertions (1) that the amounts
collected were “unliquidated” and (2) that they were not in
“default” at the time Rawlings sought to collect upon them.
However, contrary to Rawlings’s argunent, neither of these
scenarios negates the conclusion that because of the loan
obligation, these amounts were “alleged to be due and owing” when
Rawlings collected upon then.
Although it is true that the amounts collected were
“unliguidated,” nothing in HRS chapter 4438 limits its
1s
BOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER,
application to the collection of “liquidated” claims. The term
wunliquidated” means “not previously specified or determined.”
Black's Law Dictionary, supra at 1574, Black's defines the more
specific term “unliquidated debt” as “a debt that has not been
reduced to 2 specific amount, and about which there may be 2
dispute,” id at 433, and the term “unliquidated claim” as “a
claim in which the amount owed has not been determined.” Id. at
254. Bven though the amounts collected by Rawlings were not
“Liguidated,” Rawlings nevertheless attempted to collect
wnoney . . . alleged to be due and owing.” As its “Notice of
Lien” letter indicated, the lien claim “applie(d] to any amount
now due or which may hereafter becone payable out of recovery or
recoveries collected or to be collected, whether by judgment,
settlement or compromise, from any party hereby notified.” As
such, Rawlings clearly attempted to collect money that it alleged
was “due and oving.”*
4M ‘the distinction between “due and owing” and the “unliquidated”
status of a debt is clear from the following discussior
In a broad sense, ‘debt’ simply means something dus_and oxina.
Mowever, Eraditionally’ in the Lav, ie hes been given a nazrovor end nore
Hestricted meaning, A debt arises out’ of a coneractual relationship Bot
hot ali contracts result in a debt. At common lax, a tdest’ signified @
Certain or definite sum of noney. However, this nas not meant ¢
Bartlewiar fixed sum of money, bot, such a sus ae can be
Eixed data by computation, oF which is capable of being
v"SGiearly, within the purport of the rule discussed at the
beginning of this section, sun which 1s sought to be recovered by way
of sttachnent of garaishaont which is entirely hypothetical oe
Sonjectursi, and sniiguidated or uncertain ae to the amount owed, i not
fan action fora *debt” within the statutes.”
(continued...)
16
2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Rawlings’s assertion that the amounts collected were
not in “default” at the time collection was sought is also not
relevant to our HRS § 4438-3 analysis. Rawlings’s argument
appears to be based on the FOCPA, and not Hawai'i law. In an
unpublished decision of the United States District Court for the
Middle District of Louisiana proffered to the court by Rawlings
at oral argument, the District Court dismissed an FDCPA claim
against Rawlings because the debt asserted was not in default at
the time it was obtained. Dantin v, The Rawlings Co., Case 3:03-
cv-00116-JVP-CN (M.D. La. Apr. 13, 2005). The court relied upon
a statutory exception to the definition of “debt collector” under
the FDCPA, according to which a party is not a debt collector if
its collection activities “concern{] a debt which was not in
default at the time it was obtained by such person. . . .” 15
U.S.C, § 1692a(6) (F) (441). The District Court in Dantin
concluded that this exception applied, because Rawlings had
obtained information from the insurance company regarding
M(, continued)
This view that the concept of ‘debt’ is opposed to an unliquidated
sum or claim was clearly expressed in Henriques v. Vinhaca, supra, 20
Haw, 702. While the claim in Zenriques was not only unliquidated in the
sense of being uncertain put aise contingent, still the fact remains
that while not contingent. the instant claim is still clearly
Gnligaidsted in that sts ascertainment requires the exercise of
Judgment, discretion and opinion and not mere calculation or
Gonputation. As indicated generally, as well as in Henrigues, the tine
for ascertainsent of the certainty of the claim, or the capacity of the
claim to be reduced to certainty, is the tine when process 1s issued.
¥ 47 Haw. 252, 260-61, 386 P.34 886, 689-90 (1963) (emphasis
sage)
u
* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
payments made by the company on behalf of the plaintiff one year
prior to the time at which the plaintiff received settlenent
funds from the third-party tortfeasor. Id, at 9. Therefore,
there was no “default,” i.e., the amount oved to the insurance
company based on the subrogation provision in its policy, at the
time the debt was obtained by Ravlings for collection; “default”
occurred only later, when the plaintiff reached a third-party
settlement. Because HRS chapter 4438 lacks the FOCPA exemption
for debts not in default at the time obtained, the Dantin case
has no relevance to Rawling
status as a collection agency
subject to the registration requirement of HRS § 4438-3.
‘Therefore, based on the undisputed facts, Rawlings is a
“collection agency” within the meaning of HRS chapter 4438,
subject to the registration requirement of HRS § 4438-3."
% the remaining authorities that Rawlings brought to the court’s
attention at oral argument are similarly unhelpful to ita case.
In the Stephens case, 2 Washington appellate court determined that a
credit collection agency had violated the Washington Consumer Practice
en it sent collection notices stating an parties on
Dehaif of insurance companies sho were asserting subrogation rights against
those parti ‘oma 159 Pes 10 (Wash. Ce. AP
2007), reconsideration denied, Fanaa v. farmers Insurance Co,, No. 56625-3-1,
2007 itash. App. LEXIS 1332 (Wash. Cty App. Hay 25, 2007), geconeideration
senies, Oar No. $7068"¢-1, 2007 Wash. APB. LEXIS
1593 wash. Ct. App. Way 25, 20071, Th Stephens, the’ Washington court
concluded that even if subrogation ‘claims are not regulated by the FOCPA,
collection activities in this area are not exenpt from the Mashington Las,
Which applies broadly to “unfair or deceptive act lel or precticels).” 1d. at
32. ‘Rawlings cited Stephens for the proposition that subrogation clains are
not voebts, which the court determined in the context of the FOCPA. 1d. at
21-22. However, not only is this analysis inapplicable to Hawati law, put
the Sianhens court also repeatedly referred to the clains at ie
“subrogation Claims," which are encompassed within the broader’
“collection agency” under HRS § 4438-1.
‘The FIC letter cited by Rawlings 1s algo inapplicable, as it merely
(cont insed, .
8
{#** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
B. Plaintiff: to wirements for
Bringing Suit Against Rawlings under HRS $ 460-13,
In order for Rawlings’s failure to register to be
actionable by private litigants, the threshold requirements of
HRS § 490-13 must be satisfied.
HRS § 480-13 governs lawsuits whose subject is
“anything forbidden or declared unlawful by this chapter,” HRS §
480-13(a), and “unfair or deceptive act[s] or practice(s}
forbidden or declared unlawful by section 480-2.” HRS § 480-
13(b)."* ‘The Latter provision, which concerns “consumer”
lawsuits and applies to this case, provides that
Any consumer who is {niured by any unfair or deceptive act,
or practice forbidden or declared unlawful by section 450-2:
(2) May sue for damages 2 and
(2) May bring proceedings to enjoin the unlawful practices
continued)
interprets the term “debt” under the FOCRA. In any event, the letter ie
Feadily distinguishable, as it concerns the collection attempts by an insurer
against 0 thira-party tortfeasor who did not receive any personal services
f¥om the ingurer, rather than collection attempts against an insured who did
Eeceive such services.
MRS § 480-2 include:
competition and unfair or
trade or coamerce are unlawst
sleo provides that!
a) No pergon other than a consumer, the attorney general or
the director Of the office of consuner protection may bring at
ction based upon unfair or deceptive acts or practices declared
unlawfal by this section,
2 declaration stating that “[ulnfair methods of
tive acts or practices in the conduct of any
re“yms'§ 480-2(a) (Supp. 2008). HRS $ 480-2
(e) Any person may bring an action based on unfair methods
of conpatition declared uniauful by this section”
uns § 480-2.
a9
WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
(OW PUBLICAT
HRS $ 480-13(b) (emphases added). Any violation of chapter HRS
4438, which regulates “collection agencies," constitutes an
wunfair or deceptive act{] or practice[] in the conduct of any
trade or commerce for the purpose of section 480-2." HRS § 4438-
20 (1993).
Therefore, the relevant issues regarding Plaintiffs’
right to bring this lawsuit are (1) whether Plaintiffs were
“consumers” within the meaning of HRS § 480-13, and (2) whether
Plaintiffs were “injured” within the meaning of HRS § 480-13.
Because, based on the undisputed facts, Plaintiffs have failed to
show that they were injured, they may not bring suit under HRS §
480-13.
1. Plaintiffs are “Consumer:
In order to bring 2 private cause of action based on
vunfair or deceptive act(s] or practicels) forbidden or declared
unlawful by section 480-2," such as violations of HRS § 4438-3,
fone must be a “consumer” within the meaning of HRS chapter 480.
Rawlings clains that the circuit court erred in holding that the
Plaintiffs were “consumers,” because they neither purchased nor
attempted to purchase, nor were they solicited to purchase
anything from Rawlings or HMSA, as required by the definition of
"consumer." Rather than consumers, Rawlings contends that
Plaintiffs were third-party beneficiaries of employer health care
contracts with HMSA, and as such may not bring suit as consumers
20
s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
under our caselaw. Plaintiffs maintain, on the other hand, that
one nay qualify as @ consumer in the context of a violation of
HRS chapter 4438 by showing that the debt collected upon arose in
a consuner context. Because consumers do not typically purchase
services from collection agencies, Plaintiffs contend that
requiring such a purchase would lead to an absurd result.
aR a et
“consumer” is defined by statute to mean:
fa natural person who, primarily for personal, family, ox
household purposes, purchases, attempts to purchase, or is
Belicived to purchase goods of services or who connits
oney, Property, of services in a persenal investment «
HRS § 480-1 (1993).
Rawlings argues that neither of the Plaintiffs meet
this definition because neither Flores nor Rapoza purchased,
attempted to purchase, or was solicited to purchase goods or
services from Rawlings. Rather, both are participants in
employer health benefit plans: Flores directly as an employee of
‘Theo Davies, and Rapoza as a dependent on his wife’s plan through
her employer, the federal government. Rawlings points out that
the contracts between the employers and HMSA are exclusively
between the naned parties.
Rawlings further argues that rather than consumers,
plaintiffs are third-party beneficiaries of their employer's
contracts with NSA, and as such cannot bring suit under HRS
2
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
§ 480-13. In support, Rawlings points to this court's decision
in Hough v, Pacific Insurance Co,, 83 Hawai'i 457, 927 P.2d 858
(1996), and the Intermediate Court of Appeal’s (ICA) decision in
Hunt v, First Insurance Co. of Hawai 2, 82 Hawai'i 363, 922
P.3d 976 (App. 1996).
In Hough, this court considered whether an injured
employee, who had brought multiple tort claims against the
insurer based on its conduct in handling his attempt to obtain
workers’ compensation benefits, could also bring a separate claim
for damages against the insurer based on HRS chapter 480. 63
Hawai'i at 462, 927 P.2d at 863, This court held that the
plaintiff could not bring an unfair or deceptive practice clain,
because
ough 12 not 2 consumer within the meaning of thie statute.
He did not purchase workers" compensation insurance fron
Pacific. He is a third party beneficiary of the contracts
of inaurance purchased by his employer:
Id. at 470, 927 P.2d at 871. The court further held that Hough
could also not bring a derivative third-party claim under HRS
chapter 480, because the insurer, as a corporation, was not a
consumer. id, at 471, 927 P.2d at 872. See alse Hunt, 62
Hawai" 363, 922 P.3d 976 (holding that customer of grocery
store, who was injured by slip and fall at store, could not bring
HRS chapter 480 claim against store's insurance company which had
refused payment of medical claims, because customer, not having
2
+++ FOR PUB!
made any purchase from the insurance company, was not a
“consumer” who could bring suit)."”
b. Plaintiffs’ arcument
Plaintiffs do not claim to have made or attempted any
purchase from Rawlings, nor do they claim that Rawlings solicited
any. Rather, Plaintiffs argue that in the context of debt
collection, the proper focus should be on whether the underlying
obligation or debt is a consumer debt, as opposed to a commercial
or business one, In other words, if the alleged debt arises in a
consumer context, then the debt holder is a “consumer” who may
bring suit under HRS § 480-13(b). Under Plaintiffs’ theory, they
would qualify as “consumers” becau
Rawlings was collecting on
the “loan agreement” from HMSA puzporting to advance Plaintiffs
the expenses for their medical treatment, which is akin to
“service” for “personal” purposes. See HRS § 490-1, Plaintiffs
contend that the opposite result would lead to an absurd result
and controvert the clear intent of HRS chapter 4438 to “protect
debtors from abusive collection agencies.” Sen. Comm. Rep. No.
541, in 1987 House Journal, at 1355.
» Plaintiffs claim that Houah and flunt are distinguishable because
those cases do not concern debt collection and Plaintiffs are not trying to
enforce
Plaineiete
Lbility snsvrance are for the purpos
Giaine arieing from the operation of the busine
mandated by tne state
fomployees.”
age is
insurance coverage for
'1 REPORTS AND PAC!
REPORTER
In support of their argument, Plaintiffs cite the
definition of “debt” in HRS § 4438-1, which they contend shows
that “in the context of debt collection, the focus is on the
nature of the alleged debt.” HRS § 4438-1 defines “debt” to mean
any cbligation or alleged obligation of » consumer to pay
honey or other forms of payment arising out of # transacticn
Ee WOLGh the’ noney, property, insurance, or services, which
‘are primarily or
personal, family, oF household purgoses, whether of not such
ebligation has been reduced to judgment.
HRS § 4438-1 (emphases added). Based on this definition,
Plaintiffs assert that the loan agreement from HNSA to pay for
their personal medical treatments amounts to a “transaction”
within the meaning of “debt.”
In the context of collection agency abuses actionable
under HRS § 480-13, it is unlikely that the legislature intende
to Limit the ability to sue to those who had made, attempted to
make, or were solicited to make a purchase by a collection
agency. This would be an inconsistent, if not absurd, result
that the legislature would not have intended. See Beneficial
Hawai'i, Inc v. Kida, 96 Hawa’ 289, 309, 30 P.3d 895, 914-15
(2003) ("[T)he legislature is presumed not to intend an absurd
result, and legislation will be construed to avoid, if possible,
inconsistency, contradiction, and illogicality.” (Citations and
internal quotation marks onitted.)).
HRS § 4438-20 states that any violation of chapter 4438
“shall constitute . . . unfair or deceptive acts or practices in
2
FOR PUBLICATION IN WEST
|AWATT REPORTS AND PACIFIC REPORTER
the conduct of any trade of commerce for the purpose of section
480-2." HRS § 4438-20. HRS § 480-2 in turn specifies that
consumer “may bring an action based upon unfair or deceptive acts
or practices,” HRS § 480-2(d), and the prerequisites for bringing
suit are laid out in HRS § 480-13. See HRS § 480-13(b) ("Any
consumer who is iniured by any unfair or deceptive act or
practice forbidden or declared unlawful by section 480-2. .
(2) May sue for damages . . . . ; and (2) May bring proceedings
to enjoin the unlawful practices . . .
By deening violations of HRS chapter 4438 an unfair or
deceptive act or practice for the purposes of HRS § 480-2, it is
evident that the legislature wished to have chapter 4438 be
enforceable in the same manner as other unfair trade practices
under chapter 480. If enforcement were limited to individuals
who had purchased, attempted to purchase, or were solicited for
purchase of a service or good from 2 collection agency,
enforcement of HRS chapter 4438 would be left entirely in the
hands of the state. In view of the expressed purpose of HRS
chapter 480 to “encourage those who have been victimized by
persons engaging in unfair or deceptive acts or practices to
prosecute their claim,” Hse, Stand, Comm. Rep. No. 541, in 1987
House Journal, at 1355, and the intent of HRS chapter 4438 to
‘protect creditors from unscrupulous or dishonest collection
agencies, and to protect debtors from abusive collection
Ea
agencies,” this result would not be in keeping with the statutory
structure and would appear to be the type of “inconsistent,” or
“absurd,” result that this court must presume the legislature
would not have intended."
Rather, in the context of consumer debt, the
determination of whether the individual seeking suit is 2
“consumer” should rest on whether the underlying transaction
which gave rise to the obligation was for a good or service that
is “primarily for personal, family, or household purposes,” HRS §
480-1. This reading is supported by the definition of “debt” in
HRS § 4438-1, as well as the fact that the statutory structure of
HRS chapter 480 does not require that one be 2 “consuner” of the
defendant's goods or services, but merely a “consumer.” Cf.
Elenniken v. Lonaview Bank and Trust Co., 661 S.W.24 705, 707
(Tex. 1983) (“Privity between the plaintiff and defendant is not
4 consideration in deciding the plaintiff’s status as a consumer
under the (Texas Deceptive Trade Practices Act]. A plaintiff
establishes his standing as a consumer in terns of his
relationship to a transaction, not by a contractual relationship
with the defendant. The only requirement is that the goods or
™ plaintit{s also suggest that were a consumer required to have made a
purchase in order to bring suit ageinst a collection agency, common
Such as denanded payment ona debt the victin never incsrrea beca
isentity theft, of demanding that a parent pay sn alleged credit card debt of
4a child away from home, would not be enforceable by individual action under
ns'§ 480-13.
26
‘OR PUBLICATION IN WEST'S HAWAET REPORTS AND PACIFIC REPORTER,
services sought or acquired by the consumer form the basis of his
complaint.” (Citations omitted.}).
c. the underlying purchase
In this case, Plaintiffs assert that they are
“consumers” because after receiving medical services HMSA
demanded payment in the form of an interest-free loan should they
recover from a third-party. The services received had 2
“personal” purpose within the meaning of HRS § 480-1. Cf. Adams
vs Law Offices of Stuckert & Yates, 926 F. Supp. 521, 526 (E.D.
Pa. 1996) (characterizing plaintiff's receipt of medical
treatment at a plastic surgery center as “personal medical
services,” and finding that the plaintiffs’ obligation to pay for
such services was a “debt” under the FOCPA, which requires that
% Arthough operating with at tse
have concluded that debt collection
works, other states
‘Co consuner laws.
font statutory fra
Ivities are aubje
Sea In ce Mestern Aecentonce Corp, 766 .2d 214, 216 (Idaho
$Slottineerpreting idaho consumer iaw, the coure’ conclude(a) that the
collection of 2 debt arising oot of a sale of goods or services is subject to
the provisions of the Act, even when the collection of the debe is by a third
party who hss parchasea the debt from the seller {because iJt 1s the
fale that brings the debt into existence that is the crucial event”);
wi broe"] Recovery Serss., Ines, 261 F. Supp. 24 1249, 1260 (D. Kan. 2003)
{the Fansas Suprene Court has held that ‘en independent debt collect ion
* Ss subject to the provisions of the KCPA’ if three conditions are
{a)"the debt arose from 2 consumer transaction; (2) the underlying
Consumer transaction involved @ ‘aupplier’ anda ‘consumer’ as defined inthe
KCPA; and (3) [t]he conduct complained of, either deceptive or
unconscionable, occurred during the collection of, or an attempt to collect, a
Gost sich arose from the consumer transaction and was owed by the consumer’ to
the original supplier.’"); Liaging x. May Cou, 44 Ohio Misc. 81, 83 (Ohio.
Gon, £2. 1915) ("lt 1g this court's opinion that the intent of A.C. Chapter
$31, particolarly relating to the various sections referred to, were >
prohibit certain types of consuner practices to apply from the initial contact,
Between the supplier and the consuser until the relationship terminates. In
other woFds, that relationship continues from the initial inception between
SSnsuner and supplier until, se inthis case, the debt is fully paid.")
a
REPORTS AND PACIFIC REPORTER *
the underlying transaction be “primarily for personal, family, or
household purposes”). ‘Therefore, based on the obligations
arising from the “loan agreements,” which HMSA required
Plaintiffs to sign when they received their medical treatment,
Plaintiffs appear to be “consumers.”
However, at oral argument, Rawlings asserted that the
“Loan agreement” could not be the basis of one’s “consumer”
status, arguing that the “loan agreement” was an inartfully-
titled docunent that did not create any new rights. Rather,
Rawlings contended that HMSA had pre-existing subrogation rights,
arising as a matter of ley, to some portion of the amounts that
Plaintiffs recovered from third-party tortfeasore, such that the
Joan agreenent was nothing more than a written formalization
giving Plaintiffs notice of these rights. Although the precise
This court's basic principles regarding subrogation were recently
ned, Mausts es Oba,
This court has defined subrogation as “the substitution of anothe:
person in the place of = creditor, so that the person in whose favor it
Is exercised succeads to the rights of the creditor in relation tothe
debt.” Eaters vu, Weatheruax, 69 Haw. 21, 27, 131 P.24 1s), 1e1 (1367)
(internal quotation marks omitted) (quoting fapena v. Kaleleonalani, 6
Haw. 573, $83 (1865)).. “When subrogation occurs, the substiture 1@ put
in all respects in the place of the party to whose rights he is
‘Subrogated. In effect, he ‘seeps into the shoes’ of the party.”
Beters, 69 law. at 27, 731 Pa2e st 161 (citations, internal qlotetion
Rarks, "snd brackets omitted); gee alec Beneficial Hawaii, inc, v. Kida,
36 Hamas's 269, s13-14, 30 P.3d 695, 91920 (OL). Subrogation Tis
broad enough to include every instance in which one party pays a debt
for which another is prisarily answerable, and whieh, in equity end. good
conscience, should have been discharged by the latter.” Peters, €9 fam
at 27, 731 P.zd at 161 (internal quotation marke, eltaticn and brackets
omitted) «
124 Hawai's 438, 483, 166 F.3d 696, 741 (2007)
2
‘+8 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
status of the “loan agreement” was neither put at issue below nor
discussed extensively in the appellate briefings, if correct,
Rawlings’s assertion would mean that there was no underlying
transaction and that Plaintiffs were therefore not “consumers” of
medical services
Rawlings’s theory is not convincing. The “Loan
agreement” provided by HMSA and signed by Plaintiffs is also
known as a “loan receipt.” “A loan receipt is an agreement which
states that the insurance proceeds paid by the insurer to the
insured constitute an interest-free loan which must be repaid to
the extent that money is recovered in an action brought by the
Angurer in the name of the insured.” 4 Rowland H. Long, The Law
of Liability Insurance § 23.03(2) (b) {ii} (2007).
In other contexts, courts have considered whether such
loan receipts are “true loans.‘ ‘The weight of authority holds
that loan receipts are valid, although as in any agreement, the
intention of the parties should be considered. See Annotation,
ity and, of loan receipt or agreement betwe
oan receipts are used primarily to avoid what is known as the “real
perty in interest” doctrine, under which insurers who have paid to the insured
fhe entire amount of loss must sue third party tortfeasors in their own name
rother than that of the insured, which is thought to prejudice insurance
coapanies in jury trials. See 4 Long, supra, $ 23.03{2)(b]; Hawai'i Rules of
Civil Procedure Rule 17(a) ("Every action ehall be prosect
the Feal party in interest."). A loan receipt obviates this result by keeping
the insured af a real party in interest but Pequiring repayment of any funce,
recovered. 4 Long, gupta, § 23.03(2) (b] [ii]. coures have thus considered
thether loan recoigts are valid’ in order to determine whether an insurer
paying pursuant to such a loan receipt may sue in the insured’ name. id.
2
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
and insurer for a loan repayable to extent of insured's recovery
from another, 13 A.L.R.34 42 (1967).#
Without specific arguments to the contrary, the
plainest conclusion is that the “loan agreement” in this case
constituted a true loan that could have been enforced by HNSA.
As such, the loan agreement has created obligations, and could be
considered a form of payment for the health care Plaintiffs
received. Accordingly, Plaintiffs were “consumers” who, by
virtue of the agreement, engaged in a consumer transaction.
2, Plaintiffs Were not “Injured.”
Rawlings argues that the circuit court erred in
concluding that Plaintiffs were injured within the meaning of HRS
§ 480-13(b), primarily contending that because Plaintiffs paid
amounts that were less than their original obligations to repay
WMSA, they arguably received some benefit and could not therefore
have suffered any injury. In support of this argument, Rawlings
asserts that: (1) there vas no injury that was “fairly
traceable” to Rawlings’s alleged violations of HRS § 4438-3; (2)
this court’s decisions, as well as cases in the federal district
court following then, require that, for an injury to exist, one
must incur “private damages”; (3) this court’s decisions
& mere is a divergence of opinion, however, as to whether @ loan
receipt transaction constitutes a valid losn where the insurer's Liability is
absolute, In most of the cases where such a situation existed, the
transaction was deened to be a valid loan sss -” 13 B-lsf 3d gt 43.
20
#** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +
demonstrate that payment of a valid obligation does not
constitute injury; and (4) this conclusion is “consistent with
the regulatory system the Hawaii State Legislature authorized in
order to combat abusive collection practices.”
In response, Plaintiffs argue that the trial court
correctly held they were injured because the fact of payment of
money to Rawlings in response to Rawlings’s denand constituted an
injury. In support of this contention, Plaintiffs argue that:
(2) the plain text of HRS chapter 4438 does not recognize any
distinction between valid and invalid obligations that would mean
injury could only follow from payment of an invalid obligations
(2) the purpose of the law to allow individual enforcement would
be defeated if an individual could only sue on the basis of
invalid obligations; (3) Rawlings’s denand of payment without
registering was illegal, so that Plaintiffs were injured when
they paid money in response, a conclusion Plaintiffs contend is
in line with our caselaw as well as that of other jurisdictions:
and (4) Rawlings’s policy argument in support of limited
enforcement of HRS chapter 4438 by the Attorney General is not in
keeping with the purposes of the law and would result in
needlessly burdening the state.
As explained below, Plaintiffs’ payment of the HMSA
Lien to Rawlings does not constitute an injury for which they may
bring suit under HRS § 480-13(b).
2
+" FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
a rv in the contex chapt 5
As our caselaw commands, in interpreting the standing
requirenents of HRS § 480-13(b), we must start with the language
of the statute, which allows “(]ny consumer who is injured by
any unfair or deceptive act or practice forbidden or declared
unlawful by section 480-2" to sue for damages or injunctive
relief.
The statute does not define the term “injury.” Accord
Zanakis=Pico v. Cutter Dodge, Inc., 98 Hawai'i 309, 316, 47 2.34
1222, 1229 (2002) (“HRS chapter 490 defines neither ‘injury’ nor
‘damages,’ . . . .”), Rawlings and Plaintiffs put forth two
different interpretations of what it means for a consumer to be
injured in the context of claims based on a violation of the
registration requirement of HRS § 4438-3. Plaintiffs point to
the statute, which states that “{nJo collection agency shall
collect or attempt to collect any money . . . from any person who
resides . . . in this State without first registering,” HRS §
4438-3, in support of their argument that the act of paying money
to, or being collected upon by, an unregistered collection agency
caused injury to Plaintiffs, Rawlings posits a narrover view,
that one is not injured when one pays a valid obligation to a
collection agency that has conmitted the unfair trade practice of
collecting money without registering.
2
214 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_
As none of our cases have dealt with injury in this
precise context, this court must draw on the concept of injury in
analogous cases. As a general matter, “injury” means a
“judicially-cognizable injury, that is, a harm to some legally-
protected interest.” Sierra Club v, Dep't of Transp., 115
Hawai'i 299, 321, 167 P.3d 292, 314 (2007). Our caselaw on HRS
§ 480-13 elucidates the nature of the injuries cognizable under
that statute.
As we stated in Ai v, Frank Huff Agency, Ltd., “{w]hile
proof of a violation of chapter 480 is an essential element of an
action under Sec. 480-13, the mere existence of a violation is
not sufficient ipso facto to support the action; forbidden acts
cannot be relevant unless they cause private damage.” 61 Haw.
607, 618, 607 P.2d 1304, 1312 (1980) (emphasis added), overruled
inpart on other grounds by Robert's Haw, Sch, Bus. Inc. ve
Jaupahoehoe Transp, Co., $1 Hawai'i 224, 982 P.2d 853 (1999);
accord Sambor v, Omnia Credit Serva., Inc., 183 F. Supp. 2d.
1234, 1244 (D. Haw. 2002).
Although these cases suggest that Plaintiffs’
allegation of injury is insufficient, because of the varying
> im Gieri vs Leticia Query Realty, Inc., this court also required
that the injerpalieges under iia § M00-14 be fairly traceable to the
Sefensant’s actions.” 80 Hawai'i 54, 66, 905 P.2d 23, 41. (2 However,
Pesause Plaintiffs were not sinjured” in the first place, causation is not at
issue herein,
3
“*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
factual contexts of these cases a further examination of A and
Sambor is in order.
Pomete
Rawlings contends that based on Ai, there is no
cognizable injury under HRS § 480-13 when plaintiffs are not
required to make “payments beyond the amount of their existing
obligation.” (Citing Ai, 61 Haw. at 620, 607 P.2d at 1312).
In Ai, the plaintiffs brought suit against a collection
agency for preparing a promissory note, which the plaintiffs
executed and delivered to the defendant agency, that contained an
“attorney's fees” provision that violated the debt collection
laws." The note provided that in the case of default, if the
note were placed in the hands of an attorney for collection, the
plaintiffs would have to pay an attorney’s fee rate of “33 1/38
of the amount due thereon.” Ai, 61 Haw. at 610, 607 P.2d at
1307. After making nineteen payments, the plaintiffs filed a
complaint for declaratory judgment, alleging, inter alia, that
the defendant “had represented in the August promissory note that
the existing obligation of the plaintiffs might be increased by
Mint the tine the plaintiffs brought oult in AL, HRS § 480-13 lacked
any provision for consumer lawsuits. Rather, the plainciffs’ suit was based
fon HRS § 480-13(a), which provided at the time, as it does now, thet “lalny
Person who is injured in his business or property by reason of anything
forbidden or declared unlawful by this chapter ... . may sve for damages
ww Although a different provision, both provisions require an "injury,
and applying the concept of in pars paterisy the meaning of anjory as
interpreted by the court in Ai Ray De of assistance when Interpreting HRS
s a80"13 (8)
3
the addition of attorney's fees when in fact such fees could not
legally be added to the existing obligation,” in violation of the
former law on “collection agencies," and HAS chapter 480. Id.
The circuit court granted the plaintiffs’ motion for summary
judgment on this count, declared the promissory note null, void,
and unenforceable under HRS § 480-12,% and avarded damages to
the plaintiffs in the amount of $1,000 plus costs as provided by
HRS § 480-13 (a) (1). Id. The holder of the promissory note
appealed.
8 the complaint was based on two laws under HRS chapter 443, the
entirety of which was repealed in 1973, which was after the events of the
Stwouit in Ale 1979 Haw. Seas. L, Act 76, § 1. Ae quoted by the court, HRS §
debe44ie) provides in relevant part that:
Mo collection agency shall use . . . any conduet which is described as
Eoliows
(8) Any representation that an existing obligation of the debtor
or alleged debtor nay be incressed by the addition of attorney's
fees, investigation fees, service fees, ana any other fees or
charges uhen_in tact such fees or charaes may tot eaaily bs added
61 naw, BEET Rs 2, 607 F.2d at 1907 12° (quoting HRS § 443-4481)
snasis added). The plaintiffs’ HRS § 443-44(8) claim of misrepresentation
Un turn based on HRS § 443-23, which barred certain fee provisions such a5
one drafted by the defendant in Bi. HRS § 443-23, as quoted in Al, stated
A lcensee shall not collect, or attenst te collect, any
collection fee or attomey's fee of connissien fron any cebtor; provided
however, attorney's fee oF commission gay be collected after <iling ofa
LE against any debtor and such fee or comiseion shall
Au, 61'laws ae G10 2-3, 607 Pr2d-at 1307 n-3 {quoting HAS § ¢i-23) (emphasis
Baded) His § 443-23 is siniisr to today's HRS § 4635-9, entitled
SGofiection, attorney's, or commission fees; exception.” HRS § 4435-9 (Supp.
2008)
BRS § 480-12, ontitled "Contracts void," provided then, as it does
row, that [ajay contrast of agreenent in violation of this chapter is void
Gna is not enforceable at law cr in equity.” HRS '§ 480-12 (1995)
35
{#42 FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER,
On appeal, the court reviewed both whether the
plaintiffs had standing to bring the claim and whether they
should recover on the merits. With respect to standing, the
defendants had claimed that private persons did not have standing
under chapter 480 to sue, and that even if they did, “a private
plaintiff must allege and prove thet he was injured in his
business or property before damages will be assessed.” Id. at
612, 607 P.2d at 1309. Taking a broad view of “injury in...
property,” the court held that “it is sufficient that plaintiffs
allege that injury occurred to personal property through a
payment of money wrongfully induced” . . . and “accordingly
[found] plaintiffs’ allegation of injury in their property
sufficient for standing purposes under § 480-13.” Id, at 613,
607 P.2d at 1310,
Proceeding to the merits, the court concluded that the
representation in the promissory note indeed violated HRS § 443
44(8). However, the court stated:
i
essential
proof of a violation of chapter 480 4
fnent of an action under $ 480-13, th
Fg violation is not sufficient ipso f
ction: forbidden acts cannot be relevent unless
Elaintitts eccordinaly allece
Id. at 618, 607 P.2d at 1312 (citation omitted) (emphasis added)
In considering this allegation of injury, the court then turned
to the enforceability of the promissory note under the voidness
2
{++ FOR PUBLICATION IN WEST'S.
\WAI'T REPORTS AND PACIFIC REPORTER,
provision of HRS § 480-12, holding that while the attorney's fee
clause was unenforceable, it could be severed and the remainder
of the note enforced. Id. at 620, 607 P.2d at 1312. With
respect to this remainder, the court stated:
In view of the continuing cbligaticn of the plaintiffs to
‘take payments under the note severed of its offending
Clause, and in view of the fact plaintiffs have actually
2 _pavaens i thelr extatin
Ep award of $1,000.
Id. at 620-21, 607 P.2d at 1912 (emphasis added).”” The court
thus affirmed the grant of declaratory judgment regarding the
offending clause, but reversed and remanded for further
proceedings based on its finding of no damages. Id, at 621, 607
P.ad at 1312.
Therefore, Ai tells us two things about the injury
requirement under HRS § 480-13. First, a plaintiff sufficiently
alleges injury for purposes of standing by alleging that the
plaintiff was made to pay money that was “wrongfully induced,”
such as because the pronissory note requiring payment included
illegal terms. Id. at 614, 607 P.2d at 1310. Second, an
individual suffers a cognizable injury allowing the recovery of
Tt 1s apparent that the court viewed the “injury” element as
gequiring s different showing for purposes of standing than for the question
on the merits regarding entitlenent to relief. Although the court held that
the plaintifes in Al sufficiently “allege[d] that injury occurred to persons)
property through a payment of money wrongfully induced, ig, at 613, 607 P-24
St 1810, it found no cognizable legal injury because they would not’ be
Poquired to pay any parce of the agreenent that were vold.
x
{29+ FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORT!
damages under HRS § 480-13 when the individual is made to make
payments pursuant to a void or illegal provision of some
agreement.
Neither theory of injury applies to Plaintiffs in this
case. Unlike Ai, where the lower court had ruled that the
promissory note was void, Plaintiffs do not assert that any
agreement between it and Rawlings violated the law. Rather, they
focus on the mere fact that Rawlings attempted to collect, and
Plaintiffs accordingly paid, some portion of the Plaintiffs’
debts to HMSA. Because nothing in the underlying obligation was
void, nor is it alleged that Rawlings’s methods of collection
were wrongful, Plaintiffs’ payment of the sums did not cause
them any injury.
‘The essential difference between this case and Ai lies
in the nature of the unfair trade practice at issue. In Ai, the
collection agency had made, in the promissory note it prepared
for the plaintiffs in that case to sign, a representation
regarding attorney's fees that was not legally allowable under
another provision -- HRS § 443-23, see supra note 25 -- governing
the collection of attorney's fees by collection agencies. The
% Echoing the “wrongfully induced” language of Ai, Plaintiffs assert
that “Defendant indices Plaintiffs to pay it money by wrongfully demanding
payment without registering in violation of section 4435-3;" However,
(erengful inducement, while not 2 term of legal precision, implies sone
\erongful method or act of deceit in extracting payment, none of which occurred
here:
2
+ FOR PUBLICATION IN WEST'S HAWALT REPORTS AND PACIFIC REPORTER.
representation therefore violated HRS § 443-44(8), see supra note
25, and the promissory agreement was partially voided under HRS §
480-12. The underlying obligation was thus tainted by an illegal
provision which would have extracted an illegal profit for the
note holder. Once this provision was removed, the plaintiffs in
Ai were required to pay on the remaining obligations of the note.
In contrast to the prohibition in Ai under the former
“collection agencies” statute, the provision at issue here does
not bear on the validity of the underlying obligation and
Anvolved no illegal representations by Rawlings such that payment
on the obligation would have caused Plaintiffs to incur private
damage. Rather, Plaintiffs had a valid loan agreement with HMSA,
which was settled through Rawlings. Although Rawlings’ s
activities in collecting money were in violation of HRS chapter
4438, the collection cannot be said to have “injured” Plaintiffs
under Ai. Cf. Zanakis-Pico, 98 Hawai'i at 318, 47 P.3d at 1231
("Deception [is] the evil that consumer fraud statutes seek to
rectify... 1").
44, Sambor
Although factually different from the instant case,
bor confirms this view. In Sambor, the plaintiff asserted
various violations of the FDCPA, and also argued that the
defendant collection agency, Omnia, violated HRS chapter 4438 by
failing to register as a collection agency. 183 F. Supp. 2d at
8
29+ FOR PUBLICA’
IN TN WEST'S HAWAT'
PORTS AND PACIFIC REPORTER
2235. Sambor had an account with Capital one Services, which was
referred to Omnia for collection. Omnia called Sambor regarding
her “delinquent account” and sent a follow-up letter indicating a
balance due. Id, at 1236. After Omnia sent a return letter
disputing the debt, Omnia stopped all further collection activity
on her account. Id.
The court found that Omnia’s letter violated the FOCPA
and awarded statutory damages. The court also noted that Sanbor
had not shown that she suffered any actual damages, discounting
the expenses she incurred in determining whether Onnia’s activity
was illegal as well as the postage costs incurred in sending
omnia a letter. Jd, at 1241. Finding that Omnia had violated
the registration requirenent, the District Court stated that
“[t]o recover under section 480-13, however, a plaintiff must
demonstrate damages caused by the violation.” Id. at 1244
(citing Ai) (emphasis added). Because Sanbor had not established
any actual damages as a result of Omnia’s violation, the court
denied her HRS § 480-13 claim. Id, at 1245.
Plaintiffs point out that Sambor is distinguishable
from the present case because Sanbor did not pay any money to the
collection agent. While this is true, Plaintiffs nevertheless
fail to show any damag
as a result of their payment to Rawlings
based on their obligations to HMSA. Just as the “attempt to
collect” money in Sambor did not, without more, cause any damage
40
21* FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER **
to Sanbor, likewise the actual collection, by Rawlings, of
amounts Plaintiffs owed to HMSA did not cause any damage to
* Therefore, Plaintiffs have not demonstrated that
Plaintiffs.
they were injured as result of Rawlings’s violation of HRS $
4438-3. See also Higinton v. Pacific Credit Corp. 2 Haw. App.
435, 444, 445, 634 P.2d 111, 118, 119 (2981) (stating that injury
exists, under prior version of HRS § 480-13, if “expenses were
incurred because of the statutory violation and not because of a
valid debt” and framing the issue in that case as whether the
plaintiff “was wrongfully induced by the statutory violation(s)
to pay money on a debt that was not owed or to incur expenses
that would not otherwise have been incurred”); cf. Fuller vs Pac.
% plaintiffs have also relied on Keli vy. Universal Fidelity Corp., No.
civ, 96-00366ACK, 1997 WL 33620142 (0, Naw. Feb, 25, 1997), an onroperted
Secision of the United States District Court for the district of Hawai'i that
sd Sambar. “The plaintiff in Keli had brought suit under the FOCPA and
fserted that the defendant had violated ins § y failing to be
‘Id at +1. The court awarded statutory damages on this latter
Count in the amount Of $1,000 to the plaintiff. However, the court did not
Consider whether the plaintiff was injured or whether the puaintiff had
Suffered actual danages. Io fact, the court in Sambar precisely noted this
fact, snd concludea thet “[i]f statutory damages were awarded in Keli in the
Absence of actual danages, this court declines to follow Keli on this point.”
Sanbor, 183°F. Supp. 24 at 1245 1.12.
% tn favor of thelr theory of injury, Plaintiffs also cite to several
unpublished federal district court cases interpreting Connecticut’ s Untsir,
Practices Act, as well as federal district court cases interpreting the
federal Fair Debt Collection Practices Act. However, Plaintiffs fail to
provide any basis for isporting foreign lau into the interpretation of Hawad"t
Statutes, by, for example, showing that the lows are similar. Moreover,
Plaintiffs do not demonstrate that these cases support their claim that ‘money
paid to an unregistered collection agent itself constituves injury. Finally,
Ehe vast majority of state courts have held “that the claimant mst establish
thet it suffered damages, harm, or loss a5 2 result of the deceptive, unfair,
or iulegal act or practice under the consumer protection act before the
Court." Gee Annotation, ate Act
Exotectson Sct“ Preconditsons so Aatien, iI? Arb.# Stn 188 To00d)
a
= ** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
Mec. Collections, Inc., 78 Hawai'i 213, 221, 691 P.2d 300, 308
(app. 1995) (Acoba, J., dissenting in part) ("Because there can
be no injury to Plaintiffs by the collection agency's failure to
remit all attorney’s fees collected on the judgment to its own
attorney, the requirement that there be such injury under HRS §
480-13(b) is not satisfied.”).
b. purposive and policy arguments
Notwithstanding our conclusion that Plaintiffs have
failed to demonstrate an injury based on our caselaw, the
purposive and policy arguments advanced by Plaintiffs do not
point to a different conclusion. In addition to the Language of
the statute, Plaintiffs assert that failing to find injury in
this case would controvert the purpose of HRS chapter 4438.
Specifically, Plaintiffs claim that if Rawlings’s view that one
is not injured for paying a valid debt were adopted, HRS chapter
4438 would be rendered “virtually unenforceable by the victims of
Allegal collection activities.” Plaintiffs also claim that
Limiting enforcement of chapter 4438 to the Attorney General
would needlessly burden the state.
First, requiring some injury beyond payment of a valid
underlying obligation that was not wrongfully induced does not
bar consumer enforcement of all of chapter 4438. Several
provisions of that chapter concern methods of collection that are
in themselves injurious. For example, HRS § 4438-9, an analogue
2
** FOR PUBLICATION IN WEST'S HAWAT'L REPORTS AND PACIFIC REPORTER.
of the attorney's fee statute at issue in Ai, see supra note 25,
bars the collection of excessive fees by collection agencies.
HRS § 4438-15 (1993) prohibits collection by means of “any
threat, coercion, or attempt to coerce,” and expressly bars five
iterations of such conduct. HRS § 4435-18 prohibits the “use
(of] any fraudulent, deceptive, or misleading representation or
means to collect, or attempt to collect, claims or to obtain
information concerning a debtor or alleged debtor” and includes
nine types of representations that are expressly prohibited. HRS
§ 4438-18 (Supp. 2006). The title of remaining sections of
chapter 4438 express similar prohibitions on certain means of
collecting: HRS § 4438-16 (1993), “Harassment and abuse”; HRS §
4438-17 (1993), “Unreasonable publication”; and HRS § 4438-19
(1993), “Unfair or unconscionable means.”
Second, denying individual enforcement of valid debts
collected by an unregistered collection agency, where no
% sinilar observations were made by Justice Acobs, who wrote 2
dissenting opinion in Dulles. Then-ICA Judge Acoba argued that the structure
Sf chapter 4438 supported & Conclusion that sone provisions were more amenable
fo individeal enforcement than others!
Chapter 4438 (Supp.1952) is organized as follows: (1) definitions ( HRS
$'4838-1), (2) declaration of the powers and duties of the director of
Commerce and consumer affaire (HRS S 4436-2), (3) provisions selating to
Fequirements for operating a collection agency (HRS §§ 4435-3 to =6),
{4} provisions relating t9 sgency clients (creditors) and HRS § 4436-9
(iRS'§5 4430-8 Co 11), (5) provisions relating to criminal prosecution
dnd other remedies (HRG $§ 4438-12 to -18),. (6) provisions setting forth
prohibited acts against debtors (HRS $5 4435-15 to -15), and (7) the
Brovision thst any violation of the chapter is an unfair method of
Competition and an unfair or deceptive act (HRS § 4435-20).
78 Hawai'i at 222 n.9, 891 P.2d at 309 2.9 (Rcobs, J., dissenting in part)
e
WALREPORTS AND PACIFIC REPORTER
+ FOR PUBLICATION IN WEST"
inJurious method of collection was alleged or shown, does not
abrogate the purpose of chapter 4438. Justice Acoba, then an ICA
judge, discussed the legislative history of this chapter in
euller:
In 1987, the legislature enacted chapter 4438 to provide
“general regulation of collection practices(,)" to sprotect
cfeditors fom unscrupulous or dishonest collection
agencies, and to protest debtors from abusive collection
3 {.]" ‘ilge. Stand. Coma. Rep, No. S41, in 196? House
£1355." provisions like 4438-3 involve the
genersi“ regulation of collection agencies and. are
Shforeeable by the director
78 Hawai'i at 221-22, 891 P.2d at 308-09 (Acoba, J., dissenting
in part). This court has also discussed the purpose of chapter
480, which allows enforcement of chapter 4438:
HRS chapter 480"s parazount purpose was to Tencourage those
Who have been victimized by persons engaging in unfair or
deceptive acts of practices to prosecute their clais,"
thereby affording "an additional deterrent to those who
would practice unfair and deceptive business acts.” "Sen.
Stand.” Comm. Rep, No. 600, in 1968 Senate Journal, at titi;
Stand. Comm: Rep. No. 661, in 1969 House Journal, at
be2-0e3.
‘The foregoing statutory construction ie consistent
with HRS chapter 60's function as a nechanigm for absting
Practices that potentially iniure consusers in general.
Zanakis-Pico, 98 Hawai'i at 317, 47 P.3d at 1230 (emphases added).
Although a consumer may sue an unregistered agency who
also causes the consumer sone injury -- either by charging a
prohibited fee, a,c, HRS § 4438-9, or by attempting to collect in
a way that causes non-economic injury -- without an “injury,”
enforcement of HRS § 4438-3 is in the hands of the Attorney
General and the Director of the Office of Consumer Protection.
HRS § 480-2(d) (1993). As stated by then-Judge Acoba in Fuller,
“
2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
HRS § 4438-3, Like the provision analyzed in Buller, “is one of
those sections in chapter 4438 concerned with the general
regulation of collection agencies, and not . . . a section such
as HRS §§ 4438-15 to -19, which has to do with prohibited acts
involving debtors,” and which therefore allows for individual
enforcement, 78 Hawai'i at 222, 891 P.2d at 309 (Acoba, J.,
dissenting in part). As such, Ravlings’s conduct in violation of
HRS § 4438-3, while injurious to the state's interest in
regulation of collection agencies, did not directly harm
Plaintiffs.
Therefore, Plaintiffs have not denonstrated any
“injury” and may not bring suit for their claim under HRS § 480-
13 0b).
Iv. coNcLUsTON
Based on the foregoing, we vacate the circuit court’s
interlocutory order and remand to the circuit court with
instructions to enter an order granting summary judgment in favor
of Rawlings.
Thomas R. Grande,
(Jeffrey P. Crabtree,
and Norman K.K. Lau, on the
brief; substituted 10/9/07);
(Margery 8. Bronster, Robert
Hatch, and Jeannette #.
Castagnetti of Bronster,
Crabtree & Hoshibata, on the
brief; withdrew 10/8/07) for
Plaintiffs~Appellees Albert
Flores and Donald Rapoza
45
2+ FOR PUBLICATI
'ST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***
iesa H. Andrews
(Devon i. Peterson
of Rush Moore LLP with
her on the briefs)
for Defendant-Appellant
The Rawlings Company, LLC
“
|
e6483f5d-1dda-4b64-9f9b-9c395785729d | Office of Disciplinary Counsel v. Kiefer | hawaii | Hawaii Supreme Court | No. 28957
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner, ”
3
=
WILLIAM R. KIEFER, Respondent.
3
ORIGINAL PROCEEDING 8
(ooe 07-020-8480)
ORDER OF PUBLIC CENSURE
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the Office of Disciplinary
Counsel's ex parte petition for issuance of reciprocal discipline
notice to Respondent William R. Kiefer, pursuant to Rule 2.15(b)
of the Rules of the Supreme Court of the State of Hawai's (RSCH),
the menorandum, affidavit, and exhibits thereto, Respondent
Kiefer's response thereto, and the record, it appears that: (2)
on Novenber 30, 2006, the State Bar Court of California publicly
reproved Respondent Kiefer for his ethical misconduct in two
cases, and ordered Kiefer to pay disciplinary costs and attached
conditions; (2) RSCH 2.15(b) requizes the same or substantially
equivalent discipline, or restrictions or conditions upon the
attorney's license to practice law in the state of Hawai't,
unless Respondent Kiefer shall show cause under RSCH 2.15(c) as
to why imposition of the same or substantially equivalent
discipline should not be imposed; (3) Respondent Kiefer filed a
response to our February 7, 2008 notice and order on April 11,
2008 that fails to show cause; (4) a substantially equivalent
discipline is warranted in this jurisdictions and (5) 2
substantially equivalent discipline in this jurisdiction is
public censure by the supreme court. Therefore,
eats
IT IS HEREBY ORDERED that Respondent William R. Kiefer
is publicly censured in the state of Hawai'i.
IP IS FURTHER ORDERED that Respondent Kiefer shall (1)
comply with the conditions imposed by the State Bar Court of
california, or if he has already complied with said conditions,
show proof of such compliance, and (2) pay all costs of this
proceeding
DATE!
Honolulu, Hawai'i, April 29, 2008,
Evan R. Shirley, for Gre
respondent
Michael . Lee, (Btrieve
assistant disciplinary
counsel, for petitioner % S
Pecan ue be Merisey aoe
PN
Goro. Deby br
|
cbfdd9a7-5236-4c6a-a5c9-53666254d02d | State v. Hatori | hawaii | Hawaii Supreme Court | No, 27239
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
Stare OF HANAT'T, 3 8
miaintifenppelive-tespondent, gle &
Bi 2
vs. ae 8
JOSEPHINE K. HATORI, BE
Detendant-Appeliant-Petitioner. Sag =
2
“
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR. NO. 04-1-2353)
(By: Levinson, J., for the court’)
Upon consideration of the application for a writ of
certiorari filed, on December 18, 2007, by the defendant-
appellant-petitioner Josephine K. Hatori, the application is
hereby rejected.
DATED: Honolulu, Hawai'i, January 23, 2008.
FOR THE COURT:
AE py
STEVEN H. LEVIRSQHE ay ©
Associate Jus ig EAL ~
Veog wi
Deborah L. Kim,
for the petitioner
Josephine K. Hatori
on the application
+ considered by: Moon, C.J., Levinson, Nakayama, Accba, and Duffy, 3¥.
oad
|
ed3fc9dc-7fcc-46c8-9647-69789fc594f8 | State v. Kolia | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 28071
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HANAI'E, Respondent /Plaintif#-Appelien
SOLA KOLA, algo tnown as sola Kolio, °F
eocitloner/betendant-appelies "aie
CERTIORARI TO THE THTERNEDIATE COURT OF APFEREP
(Ga. ho. oft 1135)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Acoba, J., for the court")
The Application for Writ of Certiorari filed on
Sola Koll
a3
4856 AY 62 nur auae
also
ganuary 2, 2008 by Petitioner/Defendant-Appell
known as Sola Kolio, is hereby rejected.
Honolulu, Hawai'S, January 29, 2008.
DATE!
FOR THE COURT:
ASsociate Justice
Karen T. Nakasone, Deputy
Public Defender, on
the application, for
petitioner /defendant-
appellee.
Hoon, C.J. Levinscn, Nakayama, Acobe, and
» considered by:
putty, 93.
|
ad6f4333-1584-47e1-a443-da78345ee5da | State v. Fang | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 27876
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'L, Respondent/Plaintitt-Appellees| gy
vs. Se §
GAUTIER TIENNI FANG, Petitioner/Defendant-appeliait &
CERTIORARI TO THE INTERMEDIATE COURT OF APPERYS
(CR. NO. 01-1-2082) s
93414
FOR WRIT OF CERTIO!
(By: Acoba, J., for the court")
The Application for Writ of Certiorari filed on
January 17, 2008 by Petitioner/Defendant-Appellant Gautier Tienni
Fang is hereby rejected.
DATED:
Honolulu, Hawai"i, January 29, 2008.
FOR THE COURT:
BE
LEER
AER
simmow . acosy, SR. |" SEAL")
Associate Justice \s, 2s)
oe. us
Stuart N. Fujioka Le o= wey
(Nishioka 6 Fujioka),
on the application
for petitioner/
defendant-appellant.
* Considered by Moon, C.J., Levinson, Nakayama, Acobe, and Dufty, JJ.
|
8a9a697c-7019-4f1c-96d8-bf75be43ccc3 | Office of Disciplinary Counsel v. Woo | hawaii | Hawaii Supreme Court | No. 28442
IN THE SUPREME COURT OF THE STATE OF HAWAT'
vn au0d
qa
OFFICE OF DISCIPLINARY COUNSEL, Petitioners.
CHRISTOPHER S. B. WOO, Respondent.
1:8 WV 91
ORIGINAL PROCEEDING
op 07-025-8485, 07-026-8486, 07-027-8497
VI
ORDER OF TRANSFER 70 ACTIVE STATUS
AND_RESUMPTION OF DISCIPLINARY PROCEEDINGS
(By: Moon, C.J., Levinson, Nakayama, Accba, and Duffy, JJ.)
Upon consideration of the Affidavit of Charles H. Hite
Regarding Novenber 26, 2007 Order, the “Report Complex Evaluation
Re: Christopher 5. B. Woo,” the report submitted by Robert C.
Marvit, M.0., the medical expert appointed by the court to
exenine Respondent Woo, the Supplemental Declaration of Pamela
O'Leary Tower in Support of the Affidavit of Charles H. Hite, the
exhibits in support, and the record, it appears: (1) on March
23, 2007, we (1) transferred Respondent Woo to inactive status
pursuant to RSCH 2.19(c) until a determination could be made of
Respondent Woo's capacity to continue the practice of law, (ii)
ordered that disciplinary investigations could continue, and
(184) ordered pending disciplinary proceedings against Respondent
oo be held in abeyance while Respondent Woo remained on inactive
status pursuant to RSCH 2.19(c); (2) on November 26, 2007, we
appointed Robert C. Marvit, M.D. to examine Respondent Woo and
his medical records to determine whether Respondent Woo was
incapacitated fron continuing the practice of la; and (3) on
April 21, 2008, we received Dr. Marvit’s February 12, 2008
examination report that found Respondent Woo is not suffering
from a substantial impairing mood disorder or cognitive
dysfunction thet would preclude his transfer to active status,
and that determined Respondent Woo is competent to defend hinself
in disciplinary proceedings. Therefore,
BT IS HEREBY ORDERED, pursuant to RSCH 2.19(c), that
Respondent Woo is returned to active status, with entry of this
order.
17 18 FURTHER ORDERED that the Office of Disciplinary
Counsel may resune disciplinary proceedings against Respondent
Woo, including proceedings identified as 00C Nos. 07-025-8485,
097-026-8486, and 07-027-8487.
DATED: Honolvly, Hawai'i, May 16, 2008.
Deputy chief DiSciptinary opr
Counsel, for petitioner
Pamela 0’Leary Tower, (Mir Peat
samle octane
Prensa Oren on
Geek
Gano €. Dlg tr
|
72cff75e-1c33-4af3-b216-eb9f6d0037f0 | State v. Ignacio | hawaii | Hawaii Supreme Court | No. 28607
IN THE SUPREME COURT OF THE STATE OF HAWAET
woe
lt
STATE OF HAWAI'I,
Plaintiff-Appellee-Respondent,
OY 6~
WENDELL M. IGNACTO,
Defendant-Appellant~Petitioner.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 06-1-1730)
R REJECTING APPL! WI cenrroRaar
(By: Levinson, J., for the court')
upon consideration of the application for writ of
certiorari filed on August 4, 2008 by the defendant-appellant~
petitioner Wendell M. Ignacio, the application is hereby
rejected,
DATED: Honclulu, Hawai'l, September 9, 2008.
FOR THE COURT: [FRR
Seen,
Sicelate TCHR SSA
Jeffrey A. Hawk, Le a
for the petitioner, Bog
on the application
2 considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 29.
ave
|
49184dfc-64b0-43bf-864d-6cdfabc7033f | Fong v. Oh | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27635
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
CONNIE Y. FONG,
Respondent /Plaintiff/Counterclaim Defendant-Appellee
a
a
SEMIN OH and MYUNG HUI OH,
Petitioners/Defendants/Counterclaimants/ =
Cross-Claimants-Appellants
S201 Sz myn egg
qaqa
and a
Defendant/Cross-Claim Defendant
CELIA OLAES BATLE,
and
ANNE JU TAMURA; RENATO
DAVID JON TAMURA;
Defendants
CLIFF ENTERPRISES, INC.
VITO BATLE; MICHAEL TAMURA; and DOES 1-100,
and
SEMIN OH and MYUNG HUT OH,
Petitioners/Third-Party Plaintiffs-Appellants
KEITH M. KIUCHT,
Respondent /Third-Party Defendant-Appellee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(cIV. No. 02-1-2007)
ORDER (1) GRANTING IN PART NOTION 10 CORRECT JUDGMENT ON APPEAL
AND (2) VACATING JUDGMENT ON APPEAL ENTERED ON DECEMBER 27, 2007
(By: Duffy, J. for the court’)
upon consideration of Petitioners/Defendants/
Counterclaimants/Cross-Claimants-Appellants Semin Oh and
Myung Hui Oh’s motion to correct Judgment on Appeal, filed on
Acoba, and buffy, 93.
} considered by: Moon, C.J.) Levinson,
January
records
granted
entered
7, 2008, the papers in support and in opposition, and the
and files herein,
IT IS HEREBY ORDERED that the motion to correct is
in part.
IT IS FURTHER ORDERED that the Judgment on Appeal
fon December 27, 2007 is vacated.
DATED: Honolulu, Hawai'i, January 25, 2008.
FOR THE CoUuRt:
Koreas, Aaya r+
Associate Justice
|
99017c83-ebf7-4364-8d61-67bacfe06864 | Flores v. The Rawlins Company, LLC | hawaii | Hawaii Supreme Court | LAW LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
-000-=~
ALBERT FLORES and DONALD R. RAPOZA, Plaintiffs~Appellees
THE RAWLINGS COMPANY, LLC, Defendant-Appeliant
No. 28124
hve
MOTION FOR RECONSIDERATION
CO-0N0 5 wage
oats
(CIV. Wo. 04-1-2388)
MARCH 6, 2008 =3)
LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, 3.
MOON, C.J.
upon consideration of Plaintiffs-Appellees Albert
Flores and Donald Rapoza’s motion for reconsideration filed on
February 11, 2008 and the record herein,
IT IS HEREBY ORDERED that the motion is granted in part
and the published opinion of the court filed on February 1, 2008,
is hereby amended as follows (deleted material is bracketed and
new material is double underscored) :
Line 3 from the bottom of page 2: Fased on the
following, we vacate the circuit court’s interlocutory order and
remand to the circuit court to enter an order granting partial
summary judgment in favor of Rawlings.
Line 11 from the top of page 45: Therefore, Plaint
have not demonstrated any “injury” and may n for
their claim) under HRS § 480-13(b).
Iv. cONCLUSION
Based on the foregoing, we vacate the circuit court's
interlocutory order and remand to the circuit court with
instructions to enter an order granting partial summary judgment
in favor of Rawlings on all claims dependant upon a showin of
The Clerk of the Court is directed to incorporate the
foregoing changes in the original opinion and take all necessa:
steps to notify the publishing agencies of these changes.
IT IS FURTHER ORDERED that the motion is denied in all
other respects.
Norman K.K. Lau,
Jeffrey . Crabtree,
‘and Thomas R. Grande :
for plaintiffs-appellees Mare Pb Larntso—
on the motion
Peete Creator are
e—~\
Yen, ntl
|
e1e50c42-50a0-4fef-bfbd-0c795288d3e1 | State v. Akau | hawaii | Hawaii Supreme Court | LAW LIBF
NO. 26989
‘THE SUPREME COURT OF THE STATS OF HAWAI'I
eee
STATE OF HAWAI'I, Respondent/Plaintift-appellee,
ANTHONY KALANI AKAU, Petitioner/Defendant -Appellant
a
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 03-21-2285)
ER ACCEPTING APPLICATION FOR WRIT OF CERTIORART
(By: Moon, C.J., for the court’)
Petitioner/defendant-appellant Anthony Kalani Akau’a
application for writ of certiorari, filed on January 7, 2008, is
hereby accepted and will be schedule for oral argument. The
Parties will be notified by the appellate clerk regarding
scheduling.
DATED: Honolulu, Hawai'i, February 8, 2008.
FOR THE COUR’
85:8 WY g~ usa aun
oats
Considered by: Moon, C.J., Levinson, Nakayama, Accba, and Dutfy, a
|
0fb21a6d-cba3-4cb9-9c92-b86b20f258dd | Marks v. State | hawaii | Hawaii Supreme Court | RONALD. YAMOON
No. 30101
y
IN THE SUPREME COURT OF THE STATE OF HAWAT'ELS
«bby
t
Au oad
DONALD B. MARKS, Petitioner, th gs
iS
vs. qos
STATE OF HAWAI'I, Respondent. 4 2
ORIGINAL PROCEEDING
2
ORDER
(By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of Donald 8. Marks‘ “application for
federal writ of habeas corpus under 28 U.S.C. § 2241,” which we
treat as a petition for a writ of mandamus, it appears that
petitioner fails to demonstrate a clear and indisputable right to
relief. See Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334,
338 (1999) (A writ of mandamus is an extraordinary remedy that
will not issue unless the petitioner demonstrates a clear and
indisputable right to relief and a lack of alternative means to
redress adequately the alleged wrong or obtain the requested
action.). ‘Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall process petitioner's papers as a petition for a writ
of mandamus without payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
mandamus is denied.
DATE!
: Honolulu, Hawai'i, october 30, 2009.
Gor
Receeun le Teale ne
Yount Roddy de
Ms & Me lin
oad
|
9c82a44e-7b03-49ac-9d0b-ece4f243dd9a | Mussack v. State, Department of Education | hawaii | Hawaii Supreme Court | LAW LIBRARY
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPOR’
Wo. 27534
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
JOHN E. MUSSACK, Claimant-Appellant,
3
vs =
2
°
g
a
Gans
STATE OF HAWAI'I, DEPARTMENT OF EDUCATION,
‘Employer-Appellee, Self-Insured,
and
Insurance Adjuster-Appellee.
JOHN MULLEN AND COMPANY,
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO, AB 2004-023 (2-00-41331))
(py: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.
‘and Acoba, J., concurring in the result only)
Claimant-Appellant John E. Mussack ("Mussack”) appeals
from the Labor and Industrial Relations Appeals Board’ s*
(*LIRABY) July 28, 2005 decision and order affirming the decision
of the Director of Labor and Industrial Relations (“director”)
denying his claim for workers compensation against his. employer,
("DOE")? and the
the State of Hawai'i, Department of Education
Iwase and Board members Carol K,
* posed chairman Randall ¥,
Yenamoto and Vicente f- Aguino presided
"1 Revised Statutes ("HRS") § 386-3 (Supp. 2000) stati
son
(a) 1f an employee suffers personal injury either by
ind in the course of the exployment or by
Sisease proxinstely coused by or resulting from the nature of the
exploynent, ‘the employee's employer or the special ‘compensation
fund shall’ pay conpensstion to the employes or the employee’ s
dependents 28 provided in this chapter.
‘Recident arising out of and in the course of the employment
includes the wilful act of a third person directed against an
exployee because of the employe’ s employment,
accident arising out of
+ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REFORTER
LIRAB's September 1, 2005 order denying Mussack’ s motion for
reconsideration.
On appeal, Mussack argues that the LIRAB erred inasmuch
a5 it (1) departed from lawful procedure by admitting the file of
the case (a) without giving him notice, in violation of the
pretrial order, (b) without his agreement, and (c) without
affording him the opportunity to object, (2) admitted a report by
De. Daryl B. Matthews ("Dr. Matthews’ Report”) and 00E files
regarding Mussack (“DOE documents”) into evidence although they
were not authenticated and hearsay evidence, and (3) concluded
that Mussack had not sustained an injury on September 28, 2000
even though “there was a variety of evidence that Mussack
sustained an injury.”
Upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold that
(2) The LIRAB did not depart from lawful procedure
(b) No compensation shall be allowed for an injury incurred
by an enployee by the employee's wilful intention to injure
oneself cr ancther by actively engaging in any unprovoked non-vork
related physical altercation ctner than in self defense, or by the
exployee’# intoxication.
{e) A Claim for montal stress resulting solely fron
‘iplinary action taken in good faith by the employer shall not
flowed; provided that if @ collective bargeining agreement oF
other employment agreement specifies a different standard than
good faith for disciplinary actions, the standards set in the
collective bargaining agreement or other employment agreement
shall be applied in 1ieu of the good faith standard. for purposes
of this subsection, the standards set in the collective bargaining
agreenent or other’ enploynent agreenent shail be applied in any
Proceeding before the department, the appellate beesd, and the
Sppeliate courts
\OT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
where it admitted Dr. Matthews’ report and DOB documents as part
of the file of the case. The LIRAB’s pretrial order did not
require the DOE to provide Mussack with notice where the DOE did
net introduce these documents. Moreover, inasmuch as stipulation
is voluntary? and not @ prerequisite to admitted evidence, the
LIRAB may admit evidence that was not stipulated. Further,
Mussack’s failure to object to the Director’s file does not
amount to a LIRAB violation of “lawful procedure” where the
record does not indicate that the LIRAB refused to hear
objections to this evidences‘
(2) De. Matthews’ Report and DOE documents were
admissible because they are relevant® to the issue of Mussack’s
» _sgtipuration” se defined as “a voluntary agreenent between
Jsing parties concerning sone relevant point; especisily, an agreenent
fehating teva proceeding made by attorneys representing adverse parties to the
proceeding.” Black's Lau Dictionary 1455 (eth ed. 200¢)
‘see Hawai's Rules of Evidence ("MRE") 103 (“Error may not be
predicted upon ruling which sdnite or excludes evidence unless a substantial
Pigne of the party ia affected, and... a timely cbjection or motion to
Strike appears of record, stating the specific ground ef objection, if the
Specific ground was not apparent fron the context”)
+ the LIRAB Se an agency within the definition of the Hawai'i
Adninistrative Procedure Ret, gee Cazinero v. Kohala Susar co. 54 aw. 479,
teh, 510. P.2d 85, 91 (1973), and therefore, under Haval't Administrative Rule
$'1b-4)-41, “statutory and Connon lew rules relating to the admission or
Fejection of evidence” do not apply to the LIRAB. fawas's Aaministrative Rule
SioslorF201, “eneitied “Mearings Process,” describes the adaissicn of evidence
38 follows:
The admissibility ef evidence at the hearing shell not be governed
by the rules of evidence, and all relevant ccal and documentary
ividence shal)
evant i
Bocunentary evidence may De receives 1h the form of copies,
provides that, upon request, all other parties to the proceeding
Shell be given an opportunity to compare the copy with the
Gfigine!. if the original is not available, a copy say still be
Gdnssibie, but the unavailability of the original snd the reasons
3
*** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
injury on September 29, 2000;
(3) the LIRAB did not clearly err‘ by concluding that
Mussack did not sustain a psychiatric injury on September 29,
2000. We decline to disturb the LIRAB’s determination of the
therefor shall be considered by the hearings officer when
considering the weight of the documentary evidence... - The
Girector shall notify the parties whenever possible before the
hearing of the material to be co noticed and the parties shall be
afforded an opportunity at the hearing to contest the facts s0
Poticed.
(Emphasis added.) See also HRS § 91-10 (1993) (*[AIny oral oF docunentary
evidence may be received, but every agency shall as a matter of policy provide
for the exclusion of irrelevant, iamaterial, of unduly repetitious
eridence."); Cazinere, 54 Haw. st 483, 510 2.26 at 33 ("{h]hen an agency is
faced with evidence of doubtful adnissibility, it is preferable that it allow
the adnission of such evicence rather than to exclude the same, (because).
‘If the record on review contains not only all evidence which was clearly
Admissible, but algo all evidence of doubtful adniseibility, the court which
is called upon to review the case can usually sake an end of it, whereas if
evidence was excluded which that court regards aa having been admissible, 6
few trial oF fehearing cannot be avoided.)
“The rules of evidence governing administrative hearings are much less
formal than those governing judicial proceedings. This is due in part (sie)
the absence of 2 jury. Thus, the general rule ia that hearsay evidence is
ganiesible in agency proceedings.” Price v. Zoning bd. of Appeals, 77 nawai't
26, 176 n. &, 663 P20 €25, 637 n.8 (citing 4 J. Stein, Gy Mitchell &
Mezines, Raninistrative Low § 22.01 (1996))+ Thus, Ore Matthews” Report and
the DOE’ documents nay be adnissible even ae hearsay documents.” As long as Dr.
Matthexs' Report and the DOs documents were relevant =~ "having any tendency
to make the existence of any fact that is of consequence to the deverminaticn
of the action nore probable or less probable than st would be without the
evidence” == the LIRAB properly adaitted it. HRE 401. See Loui Ws Bd. of
Med. Exam'rs, 78 Hawai'i 21, 31, 869 P24 705, 718 (1995)
«See tosua v, Koa House Rest., 97 Hawai'i 402, 406, 38 P.3¢ 570,
574 (2001) ("A [Conclusion of Law] that presents mixed questions of fact and
law 45 reviewed under the clearly erroneous standard because the conclusion is
Gependent upon the facts and circumstances of the particular cese,” {internal
quotation marks, citations and brackets in original onitted)); in re Mate
x 94 Hawai'i $7, 219, 9 P34 408, 431. (2000) “Th finding
Of fact] or a nixed determination of law and fact is clearly erroneous wher
(2) the recore lacks substantial evidence to support the finding or
Getermination, of (2) despite substantial evidence to support the finding oF
Gevermination, the appellate court is left with the definite and firm
Conviction thet a mistake has been nade.”)
/* NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
weight and credibility of the evidence,’ and the substantial
evidence in the record did not support Mussack’s claim
(4) The LIRAB did not abuse its discretion by denying
Nussack’s motion for reconsideration where Mussack “raise(d]
argunents or evidence that could and should have been brought
during the earlier proceeding:"* and
(5) The LIRAB did not commit reversible error by
Finding that Mussack was not injured on September 29, 2000, where
his ongoing injuries began on September 25, 2000 because (a) he
did not seek to amend the LIRAB’s March 2, 2004 pretrial order
which plainly listed this issue and (b) even if the LIRAS erred,
it was harmless because Mussack did not present evidence other
> See taawa, 97 Hawai'i at 409-10, 38 F.3d at 577-78 ("It is well
established that courts decline te consider the weight of the evidence to
Socertain whether it weighs in favor of the administrative findings, or to
Heview the agency's findings of fact by passing upon the credibility of
Witnesses of conflicts in testimony, especially the findings of an expert
agency dealing with a specislized field.” (citations and block quotation
fermateing omitted) }
+ the presunption that @ workers’ compensation claim is for a
“covered work infury” erelates solely to the ‘work-connectedness’ of ai
injury.” "See Tamashize v. Contral Specialist, Inc., 97 Hawai'i 86, 31, 34
brbd"Yé, at 1200) thoiding thet the Ich extended TAS § 386-05 too far when it
Biglied’ the presumption to the "able-te-secuneswork™ Sasue) An employer
{bbnot be expected £0 Gtaprove the existence of an injury to the pleintitf,
father, the Elsinant has the burden to establish that he or she wae. injared
Enrough physicians” reports ana diagnoses.” Gfe Bottle. Sivahiza, 95\Baves's
Sos JeshZ3 bead t16;/724, (2001) eo estabiiah standing, the Plaines ef omose
show a distinct ang polpable injury to himself (or herseif]")." At that point,
St°the Linas Concludea, there ia & presunpeion that the injury ss connected tO
+ see Sousarie vs Miller, 92 Hawes": 505, 513,
(2000) (*{t}he purpore of @ motion for reconsideration is to allow tl
io present new evidence and/or arguments that could not have been pr
Goring the earlier adjedicated motion, Reconsideration is not s device to
Felitigate old mattere of to raise arguments or evidence that could and should
have been brought during the esrlier proceeding.” (quotation marks and
cieations casted) ).
sor eg ULC ION WEST'S AWAMRERORS AN PACHICREPORTER
Maura M. Okamoto, lice bles
Deputy Attorneys General,
for enployer-appellee,
State of Hawai't, Pate 6 Naweene vem
Department of Education
ea
SONCURRENCE BY ACOBA, J.
T concur in the result only.
aN
Mussack’s three physicians’ reports list only two dates of
injury/itinens, Septenber 29, 2000 and Octeber 13, 2000.” Homever, Musi
fd’ thst he was injured on Osteber 13,2000.
Sea Laaua, 97 Howas's at 409-10, 38 Fad at $77~
6
|
df568c30-09ba-4a54-b9b1-a71b9b318e42 | Vandenberg v. State | hawaii | Hawaii Supreme Court | AWE
No, 28083
IN THE SUPREME COURT OF THE STATE OF HAW
a
STATE OF HAWAI'I, Respondent-Respondent -Appellee:
CERTIORART TO THE INTERMEDIATE COURT OF APPEALS
(8.P.P. NO. 05-1-0023)
(By: Nakayama, J, for the court’)
Petitioner-Petitioner-Appellant’s application for writ
of certiorari filed on August 25, 2009, is hereby rejected.
DATED: Honolulu, Hawai‘i, October 9, 2009.
FOR THE COURT:
Eq
Dawueorruenyafen
Associate Justice |< S
DISSENT BY ACOBA, J.
I dissent and would accept certiorari.
Dwight C.H. Lum for
petitioner-petitioner-
appellant on the writ
‘considered by:
Moon, uJ.) Nakayama, Acoba, and Duffy, JJ., and
Circuit Judge Trader, in place of Recktenwald, Ju, recused.
aams
|
2de7e832-48eb-45dc-84ea-a2d8d5be61ed | Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
--+ 000
OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA, HAUNANT APOLIONA,
DANTE CARPENTER, DONALD CATALUNA, LINDA DELA CRUZ,
COLETTE MACHADO, ‘BOYD P. MOSSMAN, OSWALD STENDER, and
JOHN WATHE'E, IV, in their official capacities as menbers of the
Board of Trustees of the Office of Hawaiian Affairs,
PIA THOMAS ALULI, JONATHAN KAMAKAWTWO'OLE OSORIO, CHARLES
KNATAI, and KEOKI'MAKA KAMAKA KI'ILT, Plaintiffs-Appellants,
HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF
AWAT'T (HCDCH), ROBERT J. HALL, in his capacity as Acting
Executive Director of HCDCH, CHARLES STED, Chair,
STEPHANIE AVEIRO, FRANCIS L. JUNG, CHARLES KING, LILLIAN B
KOLLER, BETTY LOU LARSON, THEODORE E. LIU, TRAVIS THOMPSON,
TAIAOPO, ‘TUINALEIALTIPANO, ‘Members of the Board of Directors of
HCDCH,' State of Hawai'i, ‘and LINDA LINGLE, in her capacity as
Governor, State cf Hawai'i, Defendants-Appellees.
No. 25570
APPEAL PROM THE FIRST CIRCUIT COURT
(crv. No. 94-4207),
GANUARY 31, 2008
MOON, C.J., LEVINSON, NAKAYAMA, AND ACOBA, 9:
AND CIRCUIT JUDGE CHAN, IN PLACE OF DUFFY, J.,
OPINION OF THE COURT BY MOON, C.J.
ppellante -- (1) the Office of
Two sets of plaintiff
Hawaiian Affairs (OHA) and its Board of Trustees (hereinafter,
collectively, the OHA plaintiffs] and (2) Pia Thomas Aluli,
Jonathan Kamakawiwo'ole Osorio, Charles Ka'ai‘ai, and Keoki Maka
Kamaka Ki'ili (hereinafter, collectively, the individual
9974
*** FOR PUBLICATION ***
plaintiffs and, together with the OHA plaintiffs, collectively,
the plaintiffs] appeal from the Circuit Court of the First
Circuit's January 31, 2003 final judgment,’ entered pursuant to
Hawai'i Rules of Civil Procedure (HRCP) Rule $4(b) (2007).*
Following a jury-waived trial, the trial court found in favor of
defendants-appellees State of Hawaii (State), the Housing and
Community Development Corporation of Hawai'i, and the executive
director and menbers of the board of directors of the HCDCH,’ as
well as Linda Lingle, in her capacity as Governor of the state
Thereinafter, collectively, the defendants] and against the
plaintiffs.
Briefly stated, the instant action arises from the
defendants’ efforts in the mid-1990s to transfer certain parcels
of ceded lands to private entrepreneurs for the purpose of
residential development. On August 11, 1995, the plaintiffs
filed suit, seeking an injunction against the defendants from
selling or otherwise transferring to third parties two specific
\ the Honorable Sabrina 8. MeKenna pré
iaing.
2 Rc Rule 4(b) provies
in rele
sat part thats
nen wore than one claim for relief is presented in an
fetion, whether as a claim, counterclaim, cross-claim, or
thire-party claim, or when multiple parties are involves,
the court may direct the entry of final judgnent as to one
or more but fewer than all of the clains or parties only,
Spon an express determination that there le ho Just reason
for delay and upon an express direction for the entry of
judgrent
> donald K.w. tau is the executive dixector of HCDCH, and the board of
Girectore includes chairperson, Wesley R. Segawa, and members Hadine K.
Nakamora, Kurt H. Mitchell, Dos Fujimeto, Allan Gos Banos, Jr., Susan
Chandler, Craig Hirai, Ronald 8. Lim, and Bradiey J. Mossman.
*** FOR PUBLICATION ***
parcels of ceded lands located on the islands of Maui and
Hawai'i,® as well as any ceded lande from the public lands trust
Alternatively, the plaintiffs sought a declaration that the State
was not authorized to alienate ceded lands from the public lands
trust or, if the trial court ruled the State was so authorized, a
declaration that (2) such alienation would not limit the claims
of native Hawaiians to the ceded lands
on Decenber 5, 2002, the trial court ruled in favor of
the defendants, concluding that the plaintiffs’ claims were
barred by the doctrines o!
(2) sovereign immunity; (2) waiver
and estoppel; and (3) justiciability -- specifically, political
question, ripeness, and the mandate against advisory opinions.
Nevertheless, the trial court also concluded that the State had
the express authority to alienate ceded lands from the public
lande trust. An HRCP Rule 54(b) judgment was, the:
fer,
entered on January 31, 2003, and the plaintiffs appealed.
on appeal, both sets of plaintiffs challenge the
aforenentioned determinations made by the trial court.
Additionally, the OHA plaintiffs
jert that the trial court
erred in making several evidentiary rulings,
‘the plaintiffs filed suit before the parcel on the island of Hawai'i
(the aig Teland) waa transferred. It appears that, at sone point, che Big
[sland parcel {hereinafter, also referred to as the La'sopua parcel]
transferred to the Department of Hevailan Nowelands (DHKL}, which transfer ie
hot specifically challenged by the plaintiffs. Accordingly, other than a few
Feferescer to the ta'i'opua parcel in this opinion, the disposition of the Big
Eeland parcel ie not specifically addre
*** FOR PUBLICATION ***
For the reasons discussed infra, we vacate the January
31, 2003 judgment and remand this case to the circuit court with
ingtructions to issue an order granting the plaintiffs’ request
for an injunction against the defendants from selling or
otherwise transferring to third parties (1) the parcel of ceded
land on Maui and (2) any ceded lands from the public lands trust
until the claims of the native Hawaiians to the ceded lands has
been resolved.
1. BACKGROUND
A. Historical Backsround
‘The issues presented in this case have their genesis in
the historical events that led to the overthrow of the Kingdom of
Hawai'i, the surrender of 1.8 million acres of crown, government,
and public lande to the United states, the admission of Hawai'i
ag a state of the Union, and the creation of OHA and the public
lands trust. See Office of Hawaiian Affaira v. state, 110
Hawai'l 338, 340-42, 133 P.34 767, 769-71 (2006) (hereinafter,
QUA 12]; Office of Hawaiian Affairs v, State, 96 Hawai'i 388,
389-92, 31 P.3d 901, 902-05 (2001) (hereinafter, OHA tl; Pele
Defense Fund v. Paty, 73 Haw. $78, 585-87, 637 P.2d 1247, 1254-55
(1992); and Tre, of the office of Hawaiian Affaire v. Yamasaki,
69 Haw. 184, 159-65, 737 P.2d 446, 449-53 (1967), cert, denied,
404 U.S. 898 (1987); see algo Rice v. Cayetano, 528 U.S. 495, 501
(2000).
*** FOR PUBLICATION ***
the Uniced states Ina public land trust for tive
Durboses(-] See Acwission Act of Narch 18, 1959, Pub
No. 86-3, § 5, 73 Stat. 4, reprinted in, [avait Revi
Statutes’ (Hes), vol. 1 at'§'5 of the Adwiseions Act)
QUAI, 96 Hawai'i at 390, 31 P.34 at 903 (emphasis added). The
aforementioned five purposes are specifically delineated in
section 5(f) of the Admission Act, which provides in relevant
part:
‘The lands granted to the State of Havaii by subsection (b)
‘ction and public lands retained by the United
der subsections (c) and (a) and later conveyed to
the State under subsection (e), together with the proceeds
fron the sale or other disposition ef
incone therefrom, shall be beld by sai
trust
St-lands for niblicuse. such tands, proceeds, and income
Shall be managed and disposed of for one or more of the
foregoing purposes in such manner ae the constitution and
laws of sald State may provide, and their use for any other
object shall constitute a breach of trust for which uit may
be Brought by the United states
(Bmphasis added.) The management and administration of the ceded
lands subject to the section 5(f) trust, i.e., the public lands
< the Havaiian Homes Comission Act vas enacted by the United state
Congress (Congress) to set aside over 200,000 acres of ceded lands for
lusive honesteading by native Hawaiiang. Kez. Rep. $0. 629, seth Cong., 2
ia. 4 (1920). As a condition of statehood, the Unived state:
State fo adopt the act as a provision of the state constitution,
Const. art. XI, §.2 (1959) (renumbered art. XII, § 2 (1978)); ase also Anua
i Dep't of Hatalian Hone Lande, 64 Haw. 327, 336-38, 640 P.24 1361, 1167-68
(ide2) (detailing the purpose of the Hawaiian Homes Commision Act and the
creation of the Commission) -
Although the Hawailan Hones Comission Act defines the term “native
Hawaiian” as “any descendant of not leas than one-half part of the blood of
the races inhabiting the Hawaiian Ialands previous to 1776," HRS, vol, 1 at
4201(7) of the Hawaiian Hones Commission Act, for the purposes of this
opinion, we use the tera to mean “any individual who is a descendant of the
aboriginal people who, pricr te 1772, occupied and exercised sovereignty in
the area that now constitutes the state of Hawai'i.” Pub. L. Wo. 203-150, 107
Stac. 2510 (1993),
*** FOR PUBLICATION ***
trust, is vested in the Department of Land and Natural Resources
(puNR), pursuant to HRS § 171-3 (Supp. 2006). See also Pele
Defense Fund, 73 Haw. at 586-87, 837 P.2d at 1254. ***
In 1978, the people of Havai'i clarified the state's trust
Obtigation to native Havaisane during a Constitutional
Convention, ae set forth in various provisions of the
Hawaii Conetitution, including article x12, sections 4
through €,- . wherein OWA wae created and charged with
fanaging proccede derived from the ceded lands and
Geeignated for the benefit of native Hawai lane,
Reditionally, article ti, section 7 of the Hawai'd
Const itution requires the state £0 enact legislation
Fegarding ite trust obligations. Thus, in 1979, legislation
wee enacted that set forth the purposes of OHA and described
the powere and duties of the trustees... «1979
Bese i. het 196, §-2 at 398-99, § 8 at 406 (codified at HRS
chapter 10) {.]- in 1980, the legialacure anended HRS chapter
fe by adding Hes § 10°13.5, which proviged that “twenty Ber
cent of all {unde derived from the public land trust shall
bbe expended by OHA for the purposes of thie chapter-" = =
3580 Haw. Seas. L. Act 273, $1 at 525(.")
QHA II, 110 Hawai'i at 340-41, 133 P.3d at 769-70 (citations,
original brackets, and ellipsis omitted) (emphasis in original).
Although not pertinent to the instant appeal, we concluded, in
Yamasaki, that the construction of the ter= “funda,” ao used in HRS § 10-13.5,
*provide[d) no judicially discoverable and manageable standards for resolving
the Gisputes|, ive.) whether OHA wae entitled to (1) a portion of damages
received by the State for illegal mining of sand from public land and (2) a
pro rata share of incone and proceeds fron sales, leases, or other
Bispositions of certain public lands,) and [that the disputes] cannot be
Geclaed withost initial policy determinations of a kind clearly for
fonjudicial discretion.” 69 Haw, at 273, 737 P.24 at 457 (citation, internal
Quotation marks, and original Brackete omitted). Consequently, the
[egisiacure enacted Act #04, amending HRS § 10-i3.5 by essentially
gubetituting sincones" for "funds" and defining the term “revenue.” 1950 Haw.
Sess. Le Act 304, $83, 7 ac 948, 951; HR SE 20-15.5 (2993), 10-2 (1983),
Rowever, in QHA-T, we invalidated and effectively repezied Act 304 as
conflicting with federal law, 96 Hawai'i at 399, 31 P.3d at 912.
+ Me observe that the trial court found that, *[i]n recent years, there
have been discussione and sovenent toward the creation of a sovereign Hawaiian
Government, and thie rovenent has received both state and federal
Fecognitios." Sone echolare dispute that this movenent has been of recent
Snception, stating instead that, "{elver since the illegal overthrow and
annexation, the native people of Hawali -- identified as ‘Kanaka Mali,’
Shative Havaiiang’ or ‘Hawaiians’ -- have struggled to regain their culture,
recover thelr lands and restore their sovereign nation." Jon M. Van Dyke ©
Melody K. WacKentie, An Intvodction to the Richte of Native Havailan People,
io-JUL Maw. B-d. 63, 63 (2006) (foothore omitted).
(continued...)
*** FOR PUBLICATION ***
Moreover, in 1993, the year that marked the one-
hundredth anniversary of the overthrow of the Kingdom of Hawai'i,
both houses of Congress passed the Joint Resolution to
Acknowledge the 100th Anniversary of the January 17, 1893
overthrow of the Kingdom of Hawaii (hereinafter, the Apology
Resolution], which was signed into law by then-President Bill
Clinton on November 23, 1993 as Public Law No. 103-150, 107 stat.
14. continued)
‘he trial court further found that ‘various Hawaiian groups support ()
aitterent forms of sovereionty.- However, ae observed by one scholar,
“fulieinacely,, (native Hawaiians seek return of [the ceded Lands} from both
“How such lands would be cared for and
fmanaged, who would have Jurisdiction over then, and what rights [nJative
Ravailane could exercise upon them are crucial aspects of [slative Hawaiian
felf-governance and sovereignty.” ative Hawaiian Eights Handbook, 40 (Welody
Kapiiialoba MacKenzie, ed:, 1981)
Additionally, we note that the trial court found that the federal
legislation comoniy referred to as the "akska Bill”
was passed cut of the Senate Comittee on Indian Affairs on
September 21, 2001... .. The Comittee Report on the
Akaka Bill expiaine that iee purpose "is to authorize a
Process for the reorganization of = [nJative Havaiian
Government and to provide for the recognition of the
{plative Hawaiian goveranent by the United States for the
purpose of carrying on a governnent-to-government
Felationship.
The Akaka Bil1, if enacted(,] . . . provides that the
federal government 16 authorized to Aegotiate with the Seate
and the Feorganized [native Havalian goverment for a
transfer of land and resources to « (njative Hawalian
government. The [n]ative Hawaiian governuest created by
{ene Akaka 8i11) would thus have a land base and resource
and a status einilar to that over other native peoples in
the United States, The Comittee Report to [ehe Akaka B111]
‘That "it de the Committee's intent that the
Feferences to ‘land, resources, and assets dedicated to
injative Hawaiian use" include, but not be limited to Lande
set asise under the Hawaiian Homes Commission Act and ceded
Tends"
‘The legislation is still pending before the United
Congress,
sea
(footnotes omitted.) We take judicial notice that the current version of the
Akaka Bill was passed by the House of Representatives on October 24, 2007.
asi0
*** FOR PUBLICATION ***
(1993). The Apology Resolution provides, in its entirety,
as followa:
Yoint Resolution to acknowledge the 100th anniversary of the
Sanuary 17, 1693 overthrow of the Kingdom of Hawail, and to
offer an apology to (slative Havaiians on behalf of the
United States for the overthrow of the Kingdom of Hawaii
Whereas, prior to the arrival of the firat Suropeans in
2076, the {n)ative Hawaiian people lived in a highly
organized self-sufficient, subsistent social eyaten based on
communal land tenure with'a sophisticated language, culture,
and religion;
Wiereas{,] @ unified monarchicel government of the Hawai lan
Islands uss establishes in 1610 under Kamehameha , the
first King of Hawaii;
Wnereas, from 1626 until 1893, the United states recognized
the independence of the Kingdon of Hawaii, extended full and
complete diplonstic recognition to the Hawaiian Governnent.
land! entered into treaties and conventions with the Hawaiian
Ponarchs to govern comerce and navigetion in 1626, 1962,
Tees, 1975, ana 2667;
Whereas.) the Congregational Church (now known as the
United church of Christ), through ite Anerican Board of
Connissioners for Foreigh Missions, sponsored and sent nore
than 100 missionaries to the Kingdom of Hawail between 1620
nd 1850;
Whereas, on January 14, 1693, John L. Stevens (hereatter
Yeferred to in this Resolution ae rhe “United States
Minister"), the United states Minister asaignea to the
jovereign and independent Kingdom of Hawaii conspired with =
‘nall group of non-Hawaiian resident of the Kingdos of
Nawaii; including citizens of the United States, to
overthtow the indigenous and lawful Government of Hawaii;
Whereas, in pursuance of the conspiracy to overthrow the
Goverment of Hawall, the United States Minister and the
naval representatives of the United States caused armed
aval forces of the United staten co invade the sovereign
Mawaiian sation on January 16, 1893, and to position
themselves near the Hawaiian Government buildings snd the
Tolani Palace to intimidate Queen Liliuokalani and her
rand financiers
sea the Haxalian monarchy and proclaimed the
establishment of a Provisional Government
Wnereas(,) the United states Minister thereupon extended
Giplonstic recognition to the Provisional Goveranent that
Was formed by the conspirators without the consent of the
Inlative Hawa‘ian people or the lavful Government of Hawaii
*** FOR PUBLICATION ***
land in violation of treaties between the two nations and of
international Iaw;
lihereas, soon thereafter, when informed of the risk of
Bloodshed with resistance, Queen Liliuokalant issued the
following statenent yielding her authority to the United
Statew Government rather than to the Provisional Governnent:
I{,] Lilivokalani, by the Grace of God and under
the constitution of the Hawaiian Kingdon, Queen,
Go hereby solemiy protest against any and ail
Seco done against myself and the Constitutional
Goverment of the Hawaiian Kingdon by certain
persons claiming to have established =
Provisional Government of and for ehis Kingdom.
mat I yield to the superior force of the United
States Of America whose Minister
Plenipotentiary, His Sxcellency John L. stevens,
has caused United States troops to be landed at
Nonolwiu and declared that he would support the
Provisional Government
he Tae th:
Biotest and impelled by sald force vield mr
sathoril hn time. of
‘fheUaited States shall, spon facts being
sent che
Tepresentatives aod reinstate me in the
Bithericy whieh I clain as the Constitutional
Sovereign of the Hawaiian Telands.
Done at Honolulu this 17th day of January, A.D.
3099,
whereas, without the active support and intervention by the
United States diplosatic and miltary representatives, the
[nsurrection ageiner the Government of Queen Liliuokalant
would have failed for lack of popular support and
Snougficient ares;
Whereas (,) on February 1, 1893, the United states Minister
Taised the Anerican flag and proclaimed Hawaii to be a
protectorate of the United states;
Whereas, the report of a Preaidentially established
Ynvestigation conducted by former Congresanan Janes Blount
into the evente surrounding the insurrection and overthrow
of January 17, 1693, concluded chat the United states
Giplomatic and military representatives had abused their
Guehority and were responsible for the change in government;
here a renult of this investigation, the united
States inieter to Hawaii wae recalled from Ris diplomatic
port and the military commander of the United States arned
Rorces stationed in Hawail was disciplined and forced to
fesign his comission;
*** FOR PUBLICATION ***
Whereas, in a message to Congress on December 18, 1893,
President Grover Cleveland reported fully and accurately on
7 comitted with the participation of 2
Aipionatic representative of the United States and without
futhority of Congress”, and acknowledged that by such acts
the governsent of @ peaceful and friendly people was
overthrown;
Whereas.) President Cleveland further concluded that a
= ognd called for
the restoration of the Hawaiian monarchy?
Whereas(,] the Provisional Government protested President
Cleveland's call for the restoration of the monarchy and
continued to hold state power and pursue annexation to the
United states;
Whereas{,] the Provisional Government successfully lobbied
the Comittee on Foreign Relations of the Senate (hereafter,
referred to in this Resolution as the "Conmittee") to
conduct a new investigation into the events surrounding the
overthrow of the monareny;
Whereas(,) the Comittee and’ its chairman, Senator John
Morgan, conducted hearings in Washington, D.c., from
Decenber 27, 1093, through February 26, 180, in which
mnenbers of the Provisional Government justified and condoned
The actions of the United States Minister and recommended
annexation of Hawaii?
Wnereas, although the Provisional Goveranent was able to
Obecure the role of the United states in the illegal
Overthrow of the Navaiian monarchy, it vas unable to rally
the support from two-thirds of ene Senate needed to ratizy a
treaty of annexation;
Whereas, on July 4, 1894, the Provisional Government
Geclared itself to'be the Republic of Havails
Whereas, on January 24, 1895, while Imprisoned in Iolani
Palace, Queen Lilivokalans was forced by representatives of
the Republic of Hawaii to officially abdicate her throne
Whereas, in the 1896 United states Presidential election,
William McKinley replaced Grover Cleveland;
Wnereas, on July 7, 1698, as a consequence of the
Spanish-Averican War, President McKinley signed the Newlands
Soint Resolution that provided for the annexation of Mawail;
Weereae, through the Newlands Resolution, the self-declared
Republic of avail ceded sovereignty over the Hawaiian
Islands to the United States;
-10-
*** FOR PUBLICATION ***
OO
wnereas, ie 1 also 290
ii
[nlative Havaiian people of Havail or their soversian
government: ("1
hereas{.1 the Congress, through the Newlands Resolution,
Taritied the cession, annexed Havaii as part of the Usited
States, and vested title to the lande in Hawaii in the
United’ states;
Whereas.) the Newlande Resolution also specitied that
Westies existing between fawaii and foreign nations were to
Immediately cease and be replaced by United states treaties
with sch ations;
Whereas.) the Newlands Resolution effected the transaction
Between the Republic of Hawaii and the United states
her
ft ela te tank oa
Whereas, on April 20, 1900, President McKinley signed the
Organic Act that provided a governnent for the territory of
Revell and defined the political structure and powers of the
herly established Territorial Government and its
Felationship with the United Staten:
whereas, on August 21, 1959, Hawaii became the soth state of
the United states;
Whereas (,] the health and well-being of the {native
Hawaiien people is intrinsically tied to their deep feelings
and attachment to the Land;
ihereast,) the long-range economic and social changes. in
Hawsli over the nineteenth and early twentieth centuries
have been devastating to the population and to the health
ane well-being of the Hawaiian peopley ***
> As this court stated in OWA I:
tn addition to ite sovereignty, the Republic "ceded and
transferred to the United States the absolute fee and
Ownership of all public, Government, or Crom lands
belonging to the Goverment of the Hawaiian Islands together
wich every right and appurtenance thereunto appertaining.”
Yasuaakl, 69 Hav. at 159, 737 Po2d at 449, Following
Zanexation and until 1989, Hawaii's seat of power was vested
inva Territorial Government. gee Organic Act § 3, Act of
April 30, 2990, c. 339, 31 Stat. 141, reprinted in (HRS,
Mel vat $8) 43, 44 [Of the Organic’ Act} (establiching’ the
Sovernment of the Territory of Hawas'l)
96 Mawas'{ at 269-90, 92 P.3d at 902-03.
oa
*** FOR PUBLICATION ***
Whereas(,) the [nlative Hawaiian people are determined to
preserve, develop end transmit to future aenerations their
ancestral territory. and their cultural identity in
Accordance with their ow spiritual and traditional beliefs,
SUAKOME, practices, language, and social institutions:
Whereas, in order to promote racial harmony and cultura?
Understanding, the Legislature of the State of Hawaii has
determined that the year 1993 should serve Hawai as a_year
of special reflection on the rights and dignities of the
Injative Hawaiians in the Hawaiian and the Auerican
sockets
Whereas (,] the Eighteenth General Synod of the United Church
of Christ in recognition of the denomination's historical
Complicity in the illegal overthrow of the Fingdom of Hawaii
in 1883 directed the oftice of the President of the Uniced
Church of Christ to offer a public apology to the [alative
Hawalian people and to initiate the procese of
reconciliation between the United Church Of Chriet and the
(alative Hawaiians; and
Whereas, it is proper_and timely for the Congress on the
cccasicn ot the Tependiog one hundredth afniversaty of the
event, £0 acknow) orie sian)
Eo the inlariy ea che
KeconciLiation efforts of the State of Hawaii and the United
Ghurch of christ with Inlative Havaliane, “Now. therefore,
best
Resolved by the Senate and House of Representatives of the
United state of American in Congr venbied,
SECTION 1, ACKNONLEDaRGHET AND APOLOGY.
‘The Congres
(2) _on the occasion of the 100th anniversary of the éllegal
overthrow of the Kingdon of Hawai on January 1, 1893,
ledges 1 itiean at which
ive
(2), recognizes and comends the efforts of reconcitiation
initiated by the State of Hawaii and the United church of
Christ with (nlative Havasianey
(2), ,apolosizes te Inlative dawalians on bebalt of the
people of the sited States for the overthrow of the Kingdon
of Hawaii on January 17, 1893 with the participation of
Agente and citizens of the United states, and the
Seprivation of che richte of [nlative Havaiiane to seif-
(4) expresses ite commitment to acknowledge the
ranifications of the overthrow of the Kinggom of Hawaii, in
eo provs 8
one
-12-
*** FOR PUBLICATION ***
(5) urges the President of the United states to also
Acknowledge the ramifications of the overthrow of the
Kingdom of Mawai! and to support reconciliation ef forte
Between the United Seates and the (alative Hawaiian people
sec{Tiow] 2. Dermurrrons.
As used in thie Joint Resolution, the term *(alative
Ravallant meane any individval wo is 2 descendent of
the aboriginal people who, pricr to 1778, occupied and
cnerelsed sovereignty in the avea that now constitutes
the state of Hawaii
Sec(riow) 3. Drsctamwen.
x a ase
‘asttlamant of any claima againat the United States,
Approved Novenber 23, 1993
Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (emphases
added) (internal quotation marks omitted) .
Factual Backsround
In 1987, the legislature, in an effort to renedy the
problem of the "critical shortage of safe and sanitary housing
unite which are affordable to lower incone residents of the
State(,]* established the Housing Finance and Development
Corporation (HFDC)"® via ite enactment of HRS chapter 2018, 1987
L. Act 337, § 15 at 1045; HRS §§ 2018-2 and -3 (2993).
HDC was authorized to, inter alia, develop
© tm 1997, the legislature consolidated MPDC with the Hawal't Wousing
Authority and the fental housing trust fund into che Housing and Community
Development Corporation of Hawaii (HCDCH) 1997 Haw. Sess. Ly Act 350, $2 at
Yoio-2h7 HRS chapter 20:6 (2001)- However, the legislature, in 2006, divided
HeoeH into two separate agencies ~~ the Hawai'i Housing Finance and
Development Corporation ané the Mavai'l Public Housing Authority. See 2006
Haw. Sean. L. Act 280, $2 at 709; 2007 Haw. Sess, L. Act 249, § 2 at 777-806
(codified sn ues chaptere 201K and 3560). Wevertheless, inasmuch ae the
{netant action commenced prior to the afSrenentioned legislative changes, we
continue to utilize “HFDC,” as do the parties, throughout this opinion.
-13-
*** FOR PUBLICATION ***
fee simple or leasehold property, construct dwelling unite
thereon, including condoniniuns, ‘planned units, and cluster
developments, and sell, lease, or rent or cause to be leased
for rented, at the lowest possible price to qualifies
Tesidente, nonprofit organizations, of government agenci
with an eligible developer or in its om benalf, either:
(a) Fully completed dwelling units with the
appropriate interest in the land on which the
Gvelting unit is located; or
(2) Unite which are substantially complete and habitable
with the appropriate interest in the land on which the
Gvelling unit ls located; oF
(3) The land with siee inprovenente (other than the dwelling
unit) “either partially or fully developed.
HRS § 201E-201(a) (1993). Consequently, that same year, 1987,
the HFDC began to examine areas in the State that had a ‘critical
shortage of housing" and selected two potential sites --
(2) Weiali'i in West Maui and (2) La‘i‘opua in North Kona," both
of which were comprised of ceded lands -- for the development
of housing projects.
After conducting feasability studies of the potential
sites, the HFDC filed a petition with the Land Use Commission
(LUC) in December 1989, seeking to reclassify the Leials‘i parcel
from agricultural to urban use, At a public hearing on April 10,
1990, OKA, through its Land and Natural Resources Officer, gave
oral testimony reconmending conditional approval of the petition.
on May 18, 2990, the LUC granted the petition, recl.
fying the
property for urban use. Thereafte:
HEDC began a residential
housing development project for the parcel. As the “Master
% As stated gupra note 5, other than a few references to the La'iopua
parcel in this opinion, the transfer of said parcel is not specifically
Challenged by the plaintiffs. woreover, the parties’ briefs and argunente
focus primarily on the Leiali'i parcel and the ceded lands in general
The ueiali'i parcel was part of the former crown lands subject to
subsection 5(b) of the Admission Act
o14-
*** FOR PUBLICATION ***
Developer" for the Leiali'i project, HFDC was responsible for
providing the major infrastructure, i.e., roadways, lighting
poles, and sewer hook-ups, needed for the residential
development. HFDC contracted with a private developer to build
the houses.
In 1992, the legislature enacted Act 318 (codified as
HRS § 10-13.6 (1993)) that set forth a forma to compensate OHA
for the “villages of Leiali'i, Maui and villages of La‘i‘opua,
Hawai'i" that were to be conveyed from DNR to HFDC. HRS
§ 10-12.6(e) (Supp. 2007); see algo 1992 Haw. Sess. L. Act 318,
§ 10 at 1016-17. According to Act 318’s formula, OHA was to be
compensated twenty per cent of the fair market value of the
subject lands. HRS § 10-23.6(a). As a result, OHA and DLNR each
retained an appraiser to determine the fair market value of the
Leiali'i parcel.
In November 1993, Congr
adopted the Apology
Resolution, quoted fully supra and discussed more fully infra,
wherein it expressly recognized, inter alia, that: (1) the
overthrow of the Kingdom of Hawai'i waa illegal; (2) the taking
of crown, government, and public lands of the Kingdom was without
consent or compensation; and (3) “the indigenous Hawaiian people
never dizectly relinguished their claims . . . over their
national lands to the United States.* Apology Resolution, Pub.
L. No. 103-150, 107 Stat. 1520. Congress also formally and
publicly apologized to native Hawaiians on behalf of the United
-15-
*** FOR PUBLICATION ***
States for the overthrow and the deprivation of native Hawaiians’
rights to self-determination. Jd, Thereafter and as a result of
the adoption of the Apology Resolution, OHA denanded, based on
the advice of attorney William Meheula, that a disclaimer be
included as a part of any acceptance of funds from the sale so as
to preserve any native Hawaiian clains to ownership of the ceded
lands, of which the Leiali‘i parcel was a part.
In October 1994, HFDC declined to honor OHA’s requested
disclaimer because "to do so would place a cloud on [the] title,
rendering title insurance unavailable to buyers in the Leali‘i
Isic] project." Thereafter, on Novenber 4, 1994, *DINR
transferred about 500 acres of ceded lands” at Leiali‘i to HDC
for the consideration of $1.00, HFDC tranenitted to OHA a check
in the amount of §5,573,604.40 as OHA’s entitlement in accordance
with Act 318. Based on advice from then-OKA counsel Earl Anzai
Chat the Apology Resolution created a cloud on the title of the
ceded lands, OHA refused to accept the check. The plaintiffs
thereafter filed suit in Novenber 1994.
Subsequent to the filing of the plaintiffe’ lawsuit,
the HFDC made a policy decision to stop work on the project. By
that time, all of the roadways, utilities, lighting poles, and
sewer hookups had been completed, including sone landscaping
Work. As of December 1994, HFDC estimated it had already
invested $32 million into the Leiali‘i project.
-16-
*** FOR PUBLICATION ***
B wi
1. The Complaint and Pretrial Motions
on August 11, 1995, the plaintiffe filed an amended
complaint (First Anended Complaint), seeking injunctive and,
alternatively, declaratory relief." The plaintiffs requested:
(2) an injunction against all sales of ceded lands (Count 1);
(2) an injunction to specifically bar the sale of the Leiali'i
parcel (Count II); and, alternatively, (3) a declaratory judgment
that “(a) any conveyance to a third-party violates the Hawai'i
State Constitution and the Admission Act, and/or (b) any sale of
ceded landa does not directly or indirectly re!
ave or Limit
claims of [nJative Hawaiians to those lands" (Count 12I)." The
plaintiffa alleged that they would suffer irreparable harm if the
defendant were allowed to transfer ceded lands to third-parties
inasmuch a:
salienation of the land to a third-party would erode
the ceded lands trust and the entitlenente of the native Hawaiian
people.” In other words, the plaintiffs alleged that an
injunction was proper because, in light of the Apolosy
sesolution, any transfer of ceded lands by the State to third-
» initially, the plaintiffs filed separate complaints. On Novenber
1994, the OMA plaiatifes filed a complaint in the Circuit Court of the First
Cirelit.. On Novenber 9, 1994, the individual plaintiffs filed 2 complaint in
the Circuit Court of the Second Circuit. Upon che filing of the First Anended
Complaint in Auguet 1995, the individual plaintiffe and allegations pertaining
to their clains were added to those of the OHA plaintiffs in the First Circuit
Court action.
an their First Anended Complaint, the plaintiffs asserted two other
alternative claime that addressed valuation tesues concerning the Lesalii
parcel (Counts IV and v). However, these counts were bifurcated from the
Case for later determination and are not at issue in this appeal. Counts IV
and V are currently stayed pending this appeal.
-17-
*** FOR PUBLICATION ***
parties would anount to a breach of trust inasmuch as such
transfers would be ‘without regard for the claims of Hawaiians to
those lands* to whom the State, as trustee, owes a fiduciary
duty.
2, The Trial and the Trial Court’s written Decision
A jury-waived trial commenced on Novenber 19, 2001. At
trial, the plaintiffs adduced evidence regarding the events that
surrounded the transfer of the Leiali‘i parcel, the importance of
the land to the native Hawaiians, analogies to Native American
property rights, and the developing body of international law
that favors the rights of indigenous people to traditional lands,
‘The defendants primarily adduced evidence that the State was
authorized to alienate ceded lands from the public lands trust.
Additionally, the defendants argued that the plaintiffs were
collaterally estopped “from even arguing that the State does not
have the power to sell [the ceded lands)” based on the
unpublished decision in Trustees of the Office of Hawaiian
Affaire v. Board of Land and Natural Resources, No. 19774 (Haw.
Mar. 12, 1998) (mem.) hereinafter, Ewa Marina),"* wherein thie
court held that the State, as ceded lands trustee, did not breach
its duties by granting a dredge permit for submerged lands to a
private party, discussed more fully infra,
“As correctly cited by the trial court, Hawai'i Rules of Appellate
Procedure (MRAP) Rule 38(c) (2007) prohibite citation to an unpublished
esorandum opinion, "except when the opinion or unpublished dispositional
Order establishes che law of the pending case, ree judicata or collateral
eevoppel [.1*
-18-
*** FOR PUBLICATION ***
on December 5, 2002, the trial court issued a 105-page
written decision, entitled "Opinion of the Court” [hereinafter,
the written decision]. As discussed more fully infra, the trial
court ruled that, although Ewa Marina did not collaterally estop
the plaintiffs from bringing their claims, such claims were
barred by the doctrines of: (1) sovereign immunity; (2) waiver
and estoppel; and (3) justiciability -- specifically, political
question, ripeness, and the mandate against advisory opinions.
Notwithstanding the above rulings, the trial court also concluded
that the state had the express authority to alienate ceded lands
from the public lands trust.
on December 13, 2002, the plaintiffs filed a motion for
RCP Rule 54(b) certification or, in the alternative, for leave
to file an interlocutory appeal, which was granted. The trial
court, on January 31, 2003, filed ite HRCP Rule 54(b) judgment in
favor of the defendants. Both sets of plaintiffs separately
filed timely notices of appeal on February 3, 2003.
TT. STANDARDS OF REVIEW
A. Findings of Fact
The (erial court's findings of fact) axe reviewed on
appeal under the “clearly erroneous" standard. A (finding
of fact] is clearly erroneous when (2) the record lacke
Substantial evigence to
jpport the finding, or (2) despite
Substantial evidence in support of the finding, the
Appellate court ia nonetheless left with a definite and firm
Conviction that a mistake has been made. Substantial
evidence is credible evidence which ia of euffictent quality
nd probative value to enable a person of reasonable caution
to support a conclusion.
<19-
*** FOR PUBLICATION ***
Estate of Klink ex rel. Klink v, State, 113 Hawai'i 332, 351, 152
P.3d 504, 523 (2007) (citations, internal quotation marks,
original brackets, and ellipses omitted) (format altered) .
B. Conclusions of Law
This court reviews the (trial court's conclusions of
ew) de nove. A [conclusion of law) is not binding upon an
appellate court and is freely reviewable for ite
Correctness. Moreover, a [conclusion of lew) that Se
Supported by the [eriai coure’s finding of facte) and that
Peflects an application of the correct rule of law will not,
be overturned
Hui Kako'o Aina Ho'opulapula v. Bd. of Land & Natural Res., 112
Hawai'i 28, 38, 143 P.3d 1230, 1240 (2006) (citations, internal
quotation marki
and original brackets omitted).
111. PIScUSSION
Ae previously stated, the plaintiffs seek to enjoin the
defendants from selling or otherwise transferring the Leiali'i
parcel to third parties and selling or otherwise transferring to
third parties any of the ceded lands in general until a
determination of the native Hawaiians’ claims to the ceded lands
is made. Alternatively, the plaintiffs seek a declaration that
the State is not authorized to alienate ceded lands from the
public lands trust or, if the trial court ruled that the State is
s0 authorized, a declaration that such alienation would not limit
the clains of native Havaiians to the ceded lands. at the heart
of the plaintiffs’ claims, before the trial court and on appeal,
is the Apology Resolution. The plaintiffs essentially believe
that the title to the ceded lands is clouded as a result of the
Apology Resolution’s recognition that the native Hawaiian people
-20-
*** FOR PUBLICATION ***
never relinquished their claims over their ancestral territory
and that, therefore, the defendants have a “fiduciary obligation
to protect the corpus of the (public (Lands {t]rust until an
appropriate settlement is reached between native Hawaiians and
the state."
specifically, the plaintiffs argue that the trial court
erred in concluding that
(2) the doctzine of sovereign immunity
barred consideration of the plaintiffs’ claims; (2) the defenses
of waiver and estoppel barzed the plaintiffs’ requests for
injunctive and declaratory relief with respect to the sale of the
Leiali‘i parcel; (3) the State's transfer of the Leiali"i parcel
did not breach
and any future transfer of ceded lands would
not breach -- the State’s fiduciary duties as trustee of the
public lands trust of which the ceded lands are a part; and
(4) the doctrine of political question barred the plaintiffs’
requests for injunctive and declaratory relief. Additionally,
the OHA plaintiffe assert that the trial court erred in:
(2) determining that their claim for injunctive relief with
regard to the future sale of ceded lands in general was barred by
the ripene:
doctrine; and (2) making several evidentiary
rulings.
Preliminarily, we believe it appropriate to first
examine the language of the Apology Resolution inasmuch as the
plaintiffs’ current claim for injunctive relief is, as more fully
described infra, based largely upon the Apology Resolution, which
-21-
*** FOR PUBLICATION ***
the defendants believe is inapplicable. Me also believe it
appropriate to examine related state legislation enacted around
the same time that Congress adopted the Apology Resolution. In
our view, thie preliminary examination is critical to an
understanding of the plaintiffs’ claim for injunctive relief.
AL The Resolu Late islati
The plaintiffs’ claims for injunctive relief and,
alternatively, for declaratory relief, are based on their belief
that the *recognition in{, inter alia, the Apology Resolution] of
the illegality of the transfer of lands and the ongoing
reconciliation and negotiation process dramatically reinforces
the State’s fiduciary obligation to protect the corpus of the
[p]ublic (lands [t]rust until an appropriate settlement is
reached.* Specifically, the OHA plaintiffs argue that the
“congressional recognition of illegality, and its accompanying
call for a ‘reconciliation’ through a proc
now underway, has
changed the legal landscape and restructured the rights and
obligations of the sta
"The OHA plaintiffs further ai
that
the failure of the Apology Resolution to complete the
process of settling [nlative Havaiian elaine does not
undercut its significance in recognizing the bagea for ithe
plaintifes| caine... . As the lerial cloure explained
the Apolosy Resolution ‘contires the factual foundarion for
‘the claims that previously had been asserted.©
(Bmphagis added.) Additionally, the OHA plaintiffa maintain that
the “Apology Resolution by itself does not require the state to
turn over the lands to the [nJative Hawaiian people, but it puts
-22-
*** FOR PUBLICATION ***
the State on notice that it must carefully preserve these lands
so that @ subsequent transfer can take place when the political
branches reach an appropriate resolution of this dispute.
The defendants admit that the Apology Resolution
vposits that the overthrow was illegal and that the [cleded
(Ilands were transferred without compensation." However, relying
on the disclaimer language contained therein, the defendants
assert that ‘nothing in the Apology Resolution serves as a
settlement of claims." Additionally, the defendants maintain
that the Apology Resolution’s “historical statements provide no
guideline as to what renedy, if any, is appropriate.”
‘The trial court, in analyzing the effect of the Apolosy
Resolution on the plaintiffs’ claims, stated:
jolution apologizes for the overthrow of the
Kingdom of Hawas't on January 17,2693, with the
jarcicipation of agente and citizens of the United states,
Bhd for’ the deprivation of the inherent rights of native
Hawaiians to self-detersination and sovereignty. It also
Supports, recognizes, and commends reconciliation efforte of
the'Stace cf Mwai with native Hawaiians. Congress
is binding upon this cosrt. that the overthrow of the
Kipade nied ernst
‘Tecould not have been accomplished without the assistance
SOUS acente. and that the subsequent “cession of these
i ed st 96 wae "Vil e
Gongiesa also expressed its conmitment to acknowledge
the ramifications of the overthrow of the Kingdon of Hawai'i
[norder te provide a proper foundation for reconciliation
between the United states and the [alative Hawaiian
(pleople, and urged the President of the United states to
dies acknowledge the ranifications and £0 support
Feconeiiiation efforte
-23-
*** FOR PUBLICATION ***
Although, by ite terms, the 1993 Apology Resolution
the Onited Staten." or "result in any chanaes in entat ina
dau," (8. Rep. No. 105-123 (1953) at 35,] of ieeelt create a
Gaim ciont, or cause of action, Tmice’v. cavetans, 961 F
Supp. 1523, i546 2.24 1b. Haw. 1996), rev'd-on other
‘grounds, 520 0.8. 495 (2000) ,) 4 confixme the factual
elaine chat pt sh asserted
(Emphases added.) (Footnotes omitted.)
As previously stated, the Apology Resolution was
adopted by both the House and the Senate, signed by then-
President Clinton on November 23, 1993, and designated as Public
Law No. 103-150. Generally, when a joint resolution
such as
the one at issue in this case
has emerged from legislative
deliberations and proceedings, it is treated as law. Ann Arbor
R. Go, v. United States, 281 U.S. 658, 666 (1930). Consequently,
the rules applicable to statutory interpretation are also
applicable to the Apology Resolution. Norman J. Singer, Statutes.
and Statutory Construction § 29:8 (6th ed. 2002
Statutes § 306 (2007).
It is well-settled that,
(when construing a statute, our foremost obligation is to
certain and give effect £5 the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Ang
in the conte ve statute:
‘sonstius it ina nanner consistent with ite purmose.
Soon vw. City & County of Honolulu, 98 Hawai'i 233, 245, 47 P.3d
348, 360 (2002) (emphasis added) (citation omitted).
Additionally, “the legislature is presumed not to intend an
abeurd result, and legislation will be construed to avoid, if
possible, inconsistency, contradiction, and illogicality."
Keliipuleole v. Wileon, 65 Hawai'i 217, 222, 941 7.24 300, 305
-24-
*** FOR PUBLICATION ***
(997) (internal brackets and citations omitted). In other
words, “a rational, sensible and practicable interpretation of a
statute is preferred to one which is unreasonable or
impracticable{.]* Id. at 221-22, 941 P.2d at 304-05 (internal
brackets and citation omitted). Moreover,
Lilt is a cardinal rule of statutory construction that
Courts are bound, if rational and practicable, to give
Effect coall pate of @ statute, and that no clause,
Sentence, or word shall be construed as superfluous, void,
Se"ineignéticant if a construction can be legitimately found
Ghich will give force to and preserve all the words of the
Camara v. Agsalud, 67 Haw. 212, 215-16, 685 P.2d 794, 797 (1984)
(citations omitted)
As previously quoted, the Apology Resolution stat
relevant part:
Whereas{,] the indigenous Hawaiian people never directly
ope of ehele ‘esas to ated,
feterendum,
hereas(,] the health end well-being of the (nlative
25d tr eats. =
Ancestral territery._and their cultural identity in
22iSriance with their ovn spiritual and eraditional beliets:
TT
-2s-
*** FOR PUBLICATION ***
‘Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (emphases
added). Based on 2 plain reading of the above passages, we
believe Congress has clearly recognized that the native Hawaiian
people have unrelinquished claims over the ceded lands, which
were taken without consent or compensation and which the native
Hawaiian people are determined to preserve, develop, and transmit
to future generations. Equally clear is Congress’s “express [ed]
+ commitment to acknowledge the ramifications of the
overthrow of the Kingdom of Hawaii, in order to provide a proper
foundation for reconciliation between the United States and the
[nlative Hawaiian people.” Id. We agree with the OHA plaintiffs
that the "Apology Resolution by itself does not require the state
to turn over the [ceded] lands to the [nlative Hawaiian
people[.]* In our view, the Apology Resolution acknowledges only
that unrelinguished claims exist and plainly contemplates future
reconciliation with the United States and the State with regard
to those claims.
‘The defendants place great reliance on the Apology
Resolution’s disclaimer that *[nJothing in [the resolution] is
intended to serve as a settlement of any claime against the
United States." Apology Resolution, Pub. L. No. 103-350, 107
Stat. 1510, In 0 doing, they essentially maintain that the
plaintiffs are precluded from using the language contained
therein to establish or support a claim for the return of the
ceded lands. when reading the disclaimer language -- as we
-26-
*** FOR PUBLICATION ***
must -- “in the context of the entire [Apology Resolution] and
constru[ing] it in a manner consistent with its purpose,” Coon,
98 Hawai'i at 245, 47 P.3d at 360, the disclaimer provision
dictates only that the Apology Resolution itself does not
constitute a settlement of any of the unrelinguished clains to
the ceded lands; in other words, it does not bestow upon native
Hawaiians any ownership interest in the ceded lands. As we have
stated, the Apology Resolution recognizes, inter alia, that
native Hawaiians (1) never "directly relinquished their claims to
. thesr national lande to the United States" and (2) ‘are
determined to preserve, develop and transmit to future
generations their ancestral territory." If we were to determine,
as the defendants appear to urge, that the disclainer bars the
plaintiffs from relying upon the Apology Resolution -- a public
law -- in pursuing what the resolution clearly recognizes --
their unrelinguished claima to the ceded lands, -- we would be
violating one of the cardinal rules of statutory construction,
namely, that this court ie bound “to give effect to all parts of
a statute* so that “no clause, sentence, or word shall be
construed as superfluous, void, or insignificant." Camara, 67
Haw. at 215, 685 P.2d at 797. Subscribing to the defendant:
reading of the disclainer would render superfluous the Apology
Resolution's acknowledgnent of the plaintiffs’ unrelinguished
claims to the ceded lands. In fact, given the Apology
Resolution’s clear contemplation of future reconciliation, i.e.,
-27-
*** FOR PUBLICATION ***
settlement, it is not surprising that Congrese would include the
aforementioned disclaimer after having clearly acknowledged the
illegality of the overthrow, the existence of the native
Hawaiians’ unrelinguished claims to the ceded lands, their deep
feelings and attachment to those lands, and their determination
to pursue their claims. Clearly, the Apology Resolution is not
per sea settlement of claims, but serves as the foundation (or
starting point) for reconciliation, including the future
settlement of the plaintiffs’ unrelinguished clains.
Such interpretation is supported by the october 23,
2000 report, issued by the United States Departments of interior
and Justice (the Departments), entitled “From Mauka to Makai
The River of Justice Must Flow Freely." As indicated by the
trial court, the principal recommendation of the report states:
Te is evident from the documentation, statements, and
views received during the reconciliation process undertaken
by (the Departeente] pursuant to [the Apology Resolution]
that’ (alative Havailan people continue to maintain =
Giseinct’ conmunity and Certain governmental atractures and
They desire to increase their control over their own affaire
fand institutions. As [al matter of justice and equity, this
gelf-detersijation over thelr ovn atfaira within the
‘fwanework of [ilederal law, as do Native American tribes
For generations, the United Staten has recognized the righte
and promoted the welfare of [nJative Hawaliana as an
Indigenous people within our nation through legislation,
In March 1999, Senator Daniel K. Akaka requested Secretary of the
Interior Bruce Babbitt ‘and Attorney General Janet Reno designate officie
from their respective Deparenents whose task vould be "to Comence the
Eeconciliation process."” John Berry, Assistant Secretary, and Mark Van
Norman, Director of the Office of tribal Justice for the Department of Justice
Were s0 designated and commenced public consultations in Hawai'i in Decesber
i999.” over forty houre of public etatenente were heard, and the public
consultation process ended in two Gays of formal hesrings on O'ehu. The
Departments’ report “contains recomendations {(ineludiag « “proposed
action’}] with respect to the continuation of the reconciliation prec
should be read as merely the next step, as the United States and [nlsvive
Mevalians sove forward in further dialogve.©
-28-
#8 FOR PUBLICATION ***
Sees
administrative action, and policy statenents, To sateauard
ws tee avert
= mr cule hee
te clarify inbative Hawaiians’ political status
dha to create @ framework for recognizing a government -to-
Government relationship with @ representative [nlative
Havaiian governing Body.
(Format altered.) (Emphases added.)
‘The above interpretation is also supported by related
state legislation enacted at around or subsequent to the adoption
of the Apology Resolution
specifically, Acts 354, 359, 329,
and 340, Act 354, entitled "A Bill for an Act Relating to
Hawaiian Sovereignty,” stated in pertinent part that:
on January 16, 1893, John L. Stevens, American
inister in Hawaii and friend of those supporting the
Tnnexation of Mawa‘t to the United states, ordered the
Gnited states marines to invade Honolulu under the pretext
of protecting Awerican citizens and their property. Stevens
Chefeafter recognized a new provisional government even
before Queen Lilivokalani surrendered. The actions by the
annexationiace were condensed by President cleveland”
Special envoy and the President himself. when President
Cleveland refused to submit a treaty of annexation to the
Sesate, the new provisional government established the
Republic of Hawai'i which lasted until annexation in 18
Sixty-one years later, Hawai'i Decane a state.
‘neil the provieional government vas recognized by
John L. Stevens, the Kingdom of Hawai'i wae recognized as an
Yndependent nation by the United States, France, and Great
Britein. Many native Ravalians and other view the
Overthrow of 1293 and subsequent actions by the United
States, such as gupporting establishment of the provisional
Goverment and Later the Republic of Nawai'i, the
Gesignation of the crom and government lands as public
{Shds, annexation, and the ceding of the public lands to the
Federal government without the consent of native Hawaiians.
as lilegel. Because the actions taken by the United states
here viewed a8 illegal -ané done without the consent of
Bative Haeallaie, samy native Wawaiians feel there ina
val elsia fo tions ve Haas
PERESSa end if not, nonetary reparations wade, and that
Ehey should have the right to sovereignty, or the Tight to
belé-determination and self-governeent as do other native
Reerican peoples.
che ea uere and lessee
pea ea ation
Signity of native Hawaiians.
-29-
*** FOR PUBLICATION ***
1993 Haw. Sess. L. Act 354, § 1 at 999-1000 (emphases added). In
Act 359, also entitled "A Bill for an Act Relating to Hawaiian
Sovereignty," the legislature made findings similar to those
expressed in the Apology Resolution. 1993 Haw. Sess. L. Act 359,
S§ 1-2 at 1009-11. ‘The stated purpose of Act 359 was to
“facilitate the efforts of native Hawaiians to be governed by an
indigenous sovereign nation of their own choosing.” 1993 Haw.
Sess. L. Act 359, § 2 at 1010. The legislature established the
Hawaiian Sovereignty Advisory Comission “to advise the
legislature in carrying out the purposes of [the] Act." Id, § 4
at 1011. In enacting Acts 354 and 359, the legislature
recognized that ‘the indigenous people of Hawai'i were
denied . . . their lands,” 1993 Haw. Sess. L. Act 359, § 1(9) at
1010, and contemplated further action by the legislature to “to
tak[e] steps to promote the restoration of the rights and dignity
of native Hawaiians." 1993 Haw. Sess. L. Act 354, § 1 at 1000.
In 1997, the legislature enacted Act 329. 1997 Haw.
Sess. L. Act 329, § 1 at 956-58. Act 329, which attempted to
clarify "the proper management and disposition of the Lande
subject to the public land{s] trust and the proceeds and income
therefrom, and to effectuate article XII, section 6 of the
Hawai'i Constitution," stated that:
‘The legisiagure finde that the evente of history
relating to Hawai'i and [njative Hawaiians, including those
set forth in (the Apology Resolution) continie to. contribute
today toa deep sense of injustice among many [a]ative
Hawaiisne and others.
vesoncll iat beat i
-30-
*** FOR PUBLICATION **
is possible only if it fairly acknowledses the past while
‘The Tegiviature further finds that over the last few
decades, the Hawat fduents co
hav nth Le perenne
EecancLiiation, forenost anong these achieVenents have been
the creation of che (0) ffice of Hawaiian (Alffaire and the
Sliccation by legislative action co the [0] fice of Hawaiian
ialffaire of substantial funda cut of a portion of the
public land[s) trust established by section 3(f) of the
Raniesion Act. The overriding purpose of this Act is to
Continue this nonentum, through furcher executive and
Tegielative action in conjunction with the people of
Mawal't, re) n
resolution.
1997 Haw. Sees. L, Act 329, § 1 at 956 (emphases added) .
Adéitionally, we observe that, in 1993, the legislature
found that “the island of Kaho'olawe{"] is of significant
cultural and historic importance to the native people of
Hawai'i,” 1992 Haw. Sess. L. Act 340, § 1 at 803, and dictated
that:
be return [of Kaho'olave] to the state, the
Fesources and waters of Kahoolawe shall be beid in trust as
Dare of the public lands trust; provided chat the state
Sheil transfer management end control of the island and its
waters to the sovereign native Havaiian entity upon its
Tecognition By the United states and the state of Hawai'i.
Id, at § 2 at 806 (codified as HRS chapter 6K)
It is well-settled that native Hawaiian beneficiaries
of the ceded lands trust have a “right to bring suit under the
Hawai't Constitution to prospectively enjoin the State from
‘The island of Kaho'olave was used by the United states “as a military
target range since 1941." 2993 Maw. Seve, L. Act 340, § 1 at 803.
in 1990, the bombing and shelling of the isiand vas halted
by Congtese ane the president of che United states, A
federal commission, known a5 the Kabo'olave teland
Conveyance Comission, was created by Congress to determine
the terme of conveyance of the island to the state of
Hawai
oan
*** FOR PUBLICATION ***
violating the texms of the ceded lands trust." Pele Defense
Eund, 73 Haw. at 601, 837 P.2d at 1262. Moreover, we have
previously indicated in an analogous case dealing with the
Hawaiian Homes Commission Act that the State, as trustee, “must
adhere to high fiduciary duties normally owed by a trustee to its
beneficiaries." Ahuna, 64 Haw. at 338, 640 P.2d at 1168. In
describing the scope of the State's relevant fiduciary duties,
this court, in ahuna, analogized such duties to the fiduciary
duties of the United states to native Americans by quoting, with
approval, the words of the United states Suprene Court and
stated:
Under a hunane and self imposed policy which has found
expression in many acts of Congress and Mnerous decieions
Of this Court, [the Government, has chazged iteslf with
Tes coaguct, as disclosed in the acts of those who represent
it in dealings with the Tndians, should therefore be iudaed
by the most exacting fiduciary atandards.
1d. at 339, 640 P.2d at 1169 (quoting Seminole Nation v. United
States, 316 U.S. 286, 296-97 (1942)) (brackets and emphases in
original) (format altered). In ahuna, we held that “(eJhe use of
the term ‘most exacting fiduciary standards’ imports the notion
that (this] court will strictly scrutinize the actions of the
government." Id, at 339, 640 P.2d at 1269. Moreover, we
observed that “the nature of the trust obligations of the [state]
toward beneficiaries . . . may be determined by examining well-
settled principles enunciated by the federal courts regarding
lands set aside by Congress in trust for the benefit of other
native Anericans(.]* Id. at 339, 640 P.2d at 1168. In
-32-
*** FOR PUBLICATION ***
a
particular, we cited three specific trust duties applicable to
the State as trustee: (1) “the obligation . . . to administer
the trust solely in the interest of the beneficiary"; (2) the
obligation that the trustee “deal impartially when there is more
than one beneficiary; and (3) the “obligation to use reasonable
skill and care to make trust property productive[.J" Id. at
340, 604 P.2d at 1169-70 (citations omitted)
Ae native Hawaiians, the individual plaintiffs are
clearly beneficiaries of the ceded lands trust. Additionally,
OHA, waich is charged ‘with managing proceeds derived from the
ceded lands and designated for the benefit of native Hawaiians,”
ONAIL, 120 Hawai'i at 341, 133 P.3d at 770 (citation omitted),
can be said to be representing the interests of the native
Hawaiian beneficiaries to the ceded lands trust. The State, as
trustee, is under an obligation to “administer the trust solely
in the interest of the beneficiary" and to “deal impartially when
there is nore than one beneficiary." Ahuma, 64 Haw. at 340, 640
P.2d at 1269-70 (citations omitted). As previously discussed,
the Apology Resolution and the aforenentioned related state
legislation clearly contenplate that native Hawaiians (1) “never
directly relinguished their claims to. . . their national lands
to the United States," and (2) ‘are determined to preserve,
develop and tranamit to future generations their ancestral
an eo doing, ve stated that the “reasonable prudent person standard
applies to protecting and caring for the (erust] property(.J* Ahuna, 64 Haw.
at a4G, 640" F.2d at 2269.
<3
*** FOR PUBLICATION ***
SSS
territory. Apology Resolution, Pub. L. No. 103-150, 107 stat.
1510. Ae such, we believe and, therefore, hold that the Apology
Resolution and related state legislation, discussed supra, give
rise to the State’s fiduciary duty to preserve the corpus of the
public lands trust, specifically, the ceded lands, until such
time as the unrelinguished claims of the native Hawaiians have
been resolved. Such duty is consistent with the State's
“obligation to use reasonable skill and care” in managing the
public lands trust and the Ahuna court's declaration that the
State’s conduct “should . . . be judged by the most exacting
fiduciary standards." Ahuna, 64 Haw. at 339, 640 P.2d at 1169
(citations and emphasis omitted) .
Keeping the aforementioned discussion and holding in
mind, we now turn to examine the issues raised by the parties in
this appeal -- the first of which is the defendants’ contention
that the plaintiffs’ claim for injunctive relief is barred by the
doctrine of collateral estoppel.
B. Collateral Estoppel
Relying on Ewa Marina, the defendants
ext, as they
Gid before the trial court, that the plaintiffs are collaterally
topped from relitigating whether the state has the power to
alienate ceded lands from the public lands trust. The OHA
Plaintiffs maintain that the trial court addressed the issue and
“correctly rejected the argument presented by the [defendants] .*
-34-
*** FOR PUBLICATION ***
In Ewa Maring, the plaintiffs -- OHA, Save Ewa Beach
ohana, and two individual plaintiffs -- challenged the Board of
and and Natural Resources’ (BLNR) issuance of a conservation
district use area (CDUA) permit to Haseko, Inc. (Haseko). Ewa
Marina, slip op. at 2. “Haseko submitted a CDUA permit
application to the BLNR[,] seeking a permit to dredge a channel
through state-owned submerged lands. The purpose of this permit
was to allow Haseko to construct a 1400-slip marina as part of
the proposed ‘Ewa Marina development project." Id. BLNR
conditionally granted Haseko’s application for the CDUA permit on
December 29, 1994. Id, at 8. The plaintiffs timely appealed the
decision and order of the BLNR to the circuit court, which
affirmed the decision of the BLNR. Id, at 8-9. The plaintiffs
then appealed to this court, arguing, inter alia, that “the
issuance of the permit violated the fiduciary obligations of the
State of Hawai'i under section 5(£) of the . . . Adm
ion Act
and the public trust doctrine’ and that “issuance of the permit
constitute(d] an improper disposition of public lands.” Ids
ar 8
‘This court upheld the decisions of the circuit court
and BINR, reasoning that ‘section 5(f) does not limit the use of
the ceded lands thengelves to the five purposes[] 80 long as the
proceeds fron the disposition of these lands are held in trust.”
Id, at 21, Additionally, based on article XIZ, section 6 of the
Hawai'i Constitution, this court concluded that the state
-35-
*** FOR PUBLICATION ***
has the power to dispose of ceded lands. The actual use to
Which these lands is put by this disposition does not have
to comport with one of the five enumerated purposes in the
Agnission Act ac long as fair compensation for the
@isposition of these lands ie used for trust purposes, The
actual seve in this case, therefore, is whether the
Ammuance of the COVA permit in a proper disnosision-of ceded
tends
Id, at 21-22 (emphasis added) (footnote omitted). This court
held that the “grant of the permit for the dredging of a marina
entrance channel has an undisputably public purpose" and that,
therefore, *BLNR‘s conditional grant of the permit to Haseko did
not violate the public trust doctrine and was a proper
disposition of public lands." Id, at 26-27.
“Collateral estoppel is an aspect of ee judicata which
precludes the relitigation of a fact or issue which was
previously determined in 2 prior suit on a different claim
between the same parties or their privies.” Pele Defense Fund,
73 Haw. at 599, 837 P.2d at 1261 (citations omitted) (format
altered). Thus, the elements of collateral estoppel are:
(2) the issue decided in the prior adjudication {s identical
to the one presented in the action in question; (2) there ie
a final Judgnent on the merits; (3) the isaue decided in the
Prior adjudication vas essential to the final Judgment; and
a) the party against whom collateral estoppel is asserted
wae a party or in privity with a party to the prior
Adjudication.
Keahole Def, Coal., Inc. v. Bd, of Land & Natural ges., 110
Hawai'i 429, 429, 134 P.3d 585, 595 (2006) (citations omitted)
nee algo Citizens for the Prot. of the W
Kohala Coastline v. County of Hawai'i, 91 Hawai'i 94, 102, 979
P.2d 1120, 1128 (1999). These elements “are tempered only by the
(format altered
prerequisite that a plaintiff have a full and fair opportunity to
-36-
*** FOR PUBLICATION ***
a
litigate the relevant issues." Pele Defer 73 Haw. at
600, 837 P.2d at 1261 (citations omitted) .
In this case, the trial court ultimately determined
that Ewa Marina did not collaterally estop the plaintiffs’ clains
in this case because the “issue of whether the State has the
power to gell ceded lands . . . was not ‘essential’ to the final
judgment in Bva Marina, which merely decided whether the BLNR
could issue @ permit to dredge submerged ceded lands." (Emphases
in original.) Curiously, the trial court also found that “the
issue of whether the State could sell or dispose of ceded lands
for public purposes was actually litigated.” However, the trial
court, after taking judicial notice of the files in the awa
Maxina case, seemingly concluded to the contrary, i.e., that the
plaintiffs in the instant case -- against whom collateral
coppel is asserted -- did not have a **full and fair
opportunity’ in Ewa Marina to litigate” the State’s authority to
alienate ceded lands from the public lands trust.
Neverthe
the trial court app
‘3 to have correctly
determined that two of the elements of collateral estoppel were
met in this case, to wit: (1) there was a final judgment on the
merits in the Ewa Marina c
; and (2) the individual plaintiffs
are privies of OHA for the purposes of collateral estoppel.
However, it is apparent that the other two elements of collateral
estoppel are not met here. First, the issue decided in Ewa
Marina -- ‘whether the issuance of the CDUA permit [was] a proper
o37-
*** FOR PUBLICATION ***
disposition of ceded lands,” Bwa Marina, slip op. at 22 (footnote
omitted), -- is not identical to the issue raised by the
plaintiffs in this case, i.e., whether the State, as trustee,
should be enjoined from alienating ceded lands from the public
lands trust until such tines as the claims of the native Hawaiian
People to the ceded lands are resolved. Second, the issue
whether such an injunction should be issued wae not essential to
the final judgment in Ewa Marina inasmuch as this court in Ewa
Marina needed to determine only whether the state violated its
fiduciary duties by issuing the CDUA permit. Accordingly, we
hold that the trial court correctly determined that Ewa Marina
did not collaterally estop the plaintiffs’ claims in this case.
We now turn to the plaintiffs’ contention on appeal as they
relate to (1) the Leiali'i parcel and (2) the ceded lands in
general. We then examine the political question doctrine and the
plaintiffs’ request for injunctive relief,
©. The Leiali‘i Parcel
Sovereign Immunity
‘The trial court determined that the plaintiffs’ claims
with regard to the Leiali‘{ parcel were barred by sovereign
inmunity because title to the Leiali'i parcel had already been
transferred to the HFDC. The trial court reasoned that, in order
to return the Leiali'i parcel to the public lands trust, it would
be required “to ‘turn back the clock and examine actions already
taken by the State.’* Thus, the trial court concluded:
-38-
*** FOR PUBLICATION ***
oo
‘The Leali'{ [aie] (parcel is] no longer in the {plublic
Tijande [elrust, Although the [pllaintitfe argue that the
(perce! was) merely transferred to another State entity and
that sovereign immunity therefore does not apply, the facts
Show that the state of Havai'i received payment for the
Efansfer of this parcel) to the HFDC. (HRS §] 172-2
Specifically exenpte from the definition of public land
ihsse lance to which the HDC holds title in its corporate
Enpacity. To return the (parcel) at Leals'i (sic) to the
iphubliz lands (e]ruse, the DIR would have to expend
seneye from che State treamury. Moreover, the HFDC has
Tirerdy epent millions of dollars improving those
properties
Aecordingly, thie court cannot compel HPDC to return
‘the [parcel] at Leaii' [sie] to the (plublic (lands
Telruet without directly affecting the state treasury,
Pursuant to Pele Defense Fund v.aty, (73 Haw, $78, 637
piod 1247 (1992);1 [ehe pliaineifte’ request for injunctive
Pollet «with respect to Leall'i (sic) is, therefore,
Barred by sovereign immunity.
on appeal, the plaintiffs argue that the trial court
erred in concluding that their claim with regard to the Leiali‘t
parcel was barred by the doctrine of sovereign immunity.
specifically, the plaintiffs take issue with the trial court’s
reliance on Pele Defense Fund. The plaintiffs assert that their
claim regarding the Leiali‘i parcel was not barred by sovereign
immunity because the claim is for prospective injunctive relief.
Additionally, the OHA plaintiffs contend that: (1) the requested
injunction would not directly affect the State treasury inasmuch
e the transfer “from DLNR to HFDC was a paper transaction
shifting title from one State agency to another for which DLNR
received a mere $1[.00]"; and (2) the “dispute over the Leiali‘i
[parcel] involves governmental agencie:
rather than private
parties." Consequently, the OHA plaintiffs argue that the case
at bar is distinguishable from Pele Defense Fund.
‘The defendants, on the other hand, believe -- as did
the trial court -- that “the State has already transferred the
-39-
*** FOR PUBLICATION ***
Leiali‘i [parcel] to HFDC" and, therefore, to return the parcel
to the public lands trust, "DLNR would have to expend moneys from
the State treasury." The defendants, therefore, maintain that
the trial court correctly determined that Pele Defense Fund
mandates the conclusion that the plaintiffe’ claim is barred by
sovereign immunity. Moreover, the defendants argue that the
exception to sovereign immunity recognized in Pele Defense
Eund -- “for ‘the limited purpose of enjoining state official
breach of trust by disposal of trust assets in violation of the
Hawai'i constitutional and statutory provisions governing the
public land trust'* -- ie inapplicable in this case “because the
Admission Act and state constitutional and etatutory provisions
explicitly authorize the State to sell ceded lands.”
The doctrine of sovereign immunity dictates that
the State cannot be sued without its consent or waiver of
its inmunity in matters “iovolving the enforcenent of
contracte, treasury Liability for tort, and the adjudication
of interest in property which tas become unsullied by tort
into the boson of government." Hovever, govereign iaminity
maynot be invoked ay a defense by state officisla aha
ackion Lf attacked aa beina unconstitutionai, wer vill
sqvereian inunity par suits to enioin state officials trom
siglating state statutes
Bele Defense Fund, 73 Haw. at 607, 637 P.2d at 1265 (emphasis
added) (internal brackets, ellipsis, and citations omitted)
(format altered). Additionally, this court has adopted the rule
from EX parte Young, 209 U.S. 123 (1908), which makes an
important distinction between prospective and retrospective
relief. Id. at 609, 637 P.2d at 1266.
-40-
*** FOR PUBLICATION ***
ed by
EXemuxy, However, relief that is tantamount to an avara of
Ganages for a past’ violation of law, even though styled as
something else, is barred by sovereign immunity.
stantial ane!ia
Id. at 609-10, 837 P.2d at 1266 (emphasis added) (citations,
ellipsis, footnote, and internal quotation marks omitted). The
burden is on the State to prove “with specific facts that the
effect on the State treasury will be directly, substantially, and
quantifiably impacted." QHA II, 110 Hawai'i at 357, 133 P.3d at
786 (footnote omitted) .
Pele Defense Pund involved a claim brought by a non-
profit corporation comprised of native Hawaiian beneficiaries of
the section 5(f) Admission Act trust, challenging the exchange of
ceded land in Puna on the island of Hawai'i for privately owned
lands. 73 Haw, at 584-05, 837 P.2d at 1253. The plaintiff
prayed for, inter alia, injunctive relief to restore the Puna
parcel to the public lands trust, arguing that the transfer
constituted a breach of the trust created under section S(f) and
article XII, section 4 of the Hawai'i Constitution. Id. This
court held that, although the plaintiff's claim was couched as a
claim for prospective injunctive relief, its “request that the
trust status of the exchanged lands be restored by means of a
constructive trust [was] essentially equivalent to a
nullification of the exchange and the return of the exchanged
lands to the trust res." Id, at 611, 837 P.2d at 1267 (internal
quotation marks omitted). This court, therefore, concluded that
-a1-
*** FORPUBLICATION ***
the "effect on the state treasury would be direct and
unavoidable, rather than ancillary, because imposing a
constructive trust on lands [then privately owned] would
require . . . the State to compensate [the purchaser] for its
property." Id. at 611, 837 P.2d at 1267 (citations omitted) .
Consequently, we held that the plaintiff's “requested relief
[was], in effect, a request for compensation for the past actions
of the [State] and was, accordingly, barred by sovereign
immunity. Id.
Subsequent cases decided by this court have reaffirmed
the continued viability of the analysis articulated in Bele
Defense Fund. See, £.g., OHA II, 110 Hawai'i at 356-57, 133 P.3d
at 785-86 (holding that, under Pele Defense Fund, plaintiffs’
claims alleging a breach of the State's fiduciary duties were
barred by sovereign immunity because the plaintiffs requested
relief -- a share of revenues that the State had collected from
the ceded lands trust -- was essentially a request for past
monetary damages, and, therefore, the relief requested was
“retrospective"); Bush v, Watson, 61 Hawai'i 474, 481-82, 918
P.2d 1130, 1137-38 (1996) (holding that claims by native Hawaiian
homestead lessees, challenging the validity of third
arty
agreements (TPAs) between other le!
and non-Hawaiian farmers
ae violating the Hawaiian Homes Commission Act, were not barred
by sovereign immunity because they sought declaratory and
injunctive relief that would void exiating TPAs and enjoin the
-42-
*** FOR PUBLICATION
OO
Hawaiian Homes Commission from approving future TPAs); Aged
Hawaiians v. Hawaiian Homes Comm'n, 78 Hawai'i 192, 208 n.26, 851
P.2d 279, 295 n.26 (1995) (noting that, with respect to clains
against state officials, claimants cannot recover money damages
or the equivalent for past violations of law; nevertheless,
relief that is prospective in nature may be allowed regardless of
the state's sovereign immunity) .
Most recently, this court affirmed the Pele Defense
Fund analysis in Kaholchanchano v. State, 114 Hawai'i 302, 162
P.3d 696 (2007). Kaho'chanohano involved a class action lawsuit
brought by members of the Employees’ Retirement System of the
State of Hawai'i (ERS), the State of Hawai'i Organization of
Police Officers, and the trustees of BRS (hereinafter, the
plaintiffs] against the State alleging a breach of trust. Id. at
310, 162 P,3d at 704, The plaintiffs sought declaratory and
injunctive relief based on a challenge to a statute that
authorized the diversion of $346.9 million from the ERS fund,
which the plaintiffs alleged violated the state's constitutional
and contractual obligations to ERS menbers. Id, at 315, 162 P.3d
at 709, This court determined that, inasmuch as the State had
not expressly waived sovereign inmunity and the plaintiffs did
not claim money danage:
sthe relevant inquiry [was] whether the
relief sought for a past violation of law [was] ‘tantamount to an
award of damages’ or would merely have an ‘ancillary’ effect on
the state treasury." Id, at 337, 162 P.3d at 731 (citation and
<43-
*** FOR PUBLICATION ***
and other internal quotation marks omitted). ultimately, this
court concluded that, by granting the plaintiffs’ requested
relief, the effect on the state treasury, if any, would be only
vancillary" inasmuch as the state would be prohibited from any
future “skinming" from the ERS fund. Jd, Accordingly, this
court held that the plaintiffs’ clains were not barred by
sovereign immunity. Id, at 337-38, 162 P.3d at 731-32.
In this case, the plaintiffe seek to enjoin the actions
of state executive officials from transferring the Leialii
parcel because they believe such transfer would further diminish
the corpus of the public lands trust -- in violation of the
State’s constitutional and statutory fiduciary duties -- before
their unrelinguished claims to the ceded lands could be resolved.
‘As in Kaho'chanchano, the State, here, has not expressly waived
sovereign inmunity, and the plaintiffs do not claim money
Gamages. Although the plaintiffs characterize their claim with
respect to the teaili'i parcel as being one for prospective
injunctive relief, ise., enjoining the transfer of the Leiali‘i
parcel, the parcel was, in fact, transferred from DLNR to HFDC on
the eame day the plaintiffs filed suit. Accordingly, in this
case, as in Kaho'ohanchano, “the relevant inguiry is whether
We note that this court'# conclusion in xaho! As consiseent
with Bush. wherein we “decline (@) ‘to adopt the federal courts’ narrow view
Chat a claim for relief based on past iiiegal action ie necesearsiy,
Sretrospective[,|'" holding instead that ene crucial inguisy under our
sovereign immunity principies is whether the relief sought for s past
violation of law ie" ‘tantamount to an avard of damages’ oF would merely have
an ‘ancillary’ effect on the state treasury. Bush, 81 Hawail at 462 n.3, 318
Diag ae 1338.5. (eitations omitted)
-46-
*** FOR PUBLICATION ***
a
the relief sought for a past violation of law(, i.e., the
transfer of property,] is ‘tantamount to an award of damages’ oF
would merely have an ‘ancillary’ effect on the state treasury.”
Kaho'chanohano, 114 Hawai'i at 337, 162 P.3d at 731 (some internal
quotation marks and citation omitted).
unlike Pele Defense Fund, in which ceded lands were
exchanged for privately owned lands, the Leiali‘i parcel was
transferred from one state agency to another, i.e., from DLNR to
HPDC. Moreover, the consideration of $1.00 was also paid from
one state agency to another. In other words, the return of the
property and purchase price between both state agencies
effectively changes nothing. Both the parcel and the $1.00 would
remain within the control of the State, To the contrary, because
the lands at iseue in Bele Defense Fund had been transferred to a
private third-party, thie court concluded that the State would
have to compensate the private third-party for the return of the
property in the public lands trust. 73 Haw. at 611, 837 P.2d at
1267, In that regard, Pele Defense Fund is distinguishable from
the instant case because the Leiali‘i parcel would remain within
the control of the State. Returning the parcel to the public
lands trust would require only that the HFDC transfer title back
to DIN and that DLNR pay only $1.00 for such transfer, As such,
the effect on the State treasury, if any, would be only
ancillary.
-45-
*** FOR PUBLICATION ***
However, in concluding that sovereign inmunity barred
the plaintiffs’ claims with regard to the Leiali‘i parcel, the
trial court additionally relied upon the fact that, prior to the
transfer of the Leiali'i parcel, HFDC had spent $31 million
developing infrastructure on the property. In so doing, the
trial court did not provide any explanation as to how the
expenditure of $31 million prior to the plaintiffe’ filing of the
present lawsuit resulted in a “direct” ae opposed to ‘ancillary
effect on the state treasury. We further observe that the
parties do not any present argument on this issue.
Although we recognize that $31 million dollars is a
significant sum of money, that fact alone is insufficient to
support a conclusion that such past expenditure constitutes a
“direct” future effect on the state treasury. Indeed, as
previously stated, sovereign immunity does not bar a claim for
Prospective injunctive relief “even though accompanied by a
substantial ancillary effect on the state treasury." pele
Defense Fund, 73 Haw.
(internal quotation marks, citation, and footnote omitted). In
at 609, 837 P.2d at 1266 (emphasis added)
the casé at bar, the plaintiffs are not asking that the $21
million be returned to then or even to the state treasury.
Moreover, the benefit of the $31 million expenditure by HPDC on
infrastructure remains with the State. Thus the plaintiffs’
requested relief -- i.e., an injunction -- is not “tantamount to
an award of damages for a past violation of law.” Id. at 609-10,
-46-
*** FOR PUBLICATION ***
a
837 P.2d at 1266 (internal quotation marks, citation, and
ellipsis omitted). As such, the effect of the expenditure of $31
million on the state treasury is “ancillary* -- albeit a
substantial one. We, therefore, hold that the plaintiffs’ claim
for injunctive relief with regard to the Leiali‘i parcel is not
barred by sovereign immunity, Accordingly, we also hold that the
trial court erred in determining otherwise:
2. Waiver and Estoppel
‘he plaintiffs argue that the trial court erred in
determining that the defenses of waiver and estoppel barred the
plaintiffe’ request for injunctive relief with respect to the
Leiali‘i parcel. Because waiver and estoppel are distinct
doctrines, we analyze them separately below.
a. waiver
‘The trial court concluded that the
[pllaineitts, by thelr actions and inactions during the
Lig years beeween 1987 and 1994. = waived any right
they nay have had to contest the sale of [the teialit
parcel] to HFDC a5 illegal
no [individual (p)aineifes argue that hey and
their counsel relied on Congress's 1993 apology Resolution
an the Legis) ‘het 329 of 1993 a8 central bases to
Seek an injunction in the fall of 1994 on the
[Sodas pending resolution of the Hawaiians’ claim to
Uatetantp of the ceded lands. Mr. Meheula’ discussions
QIEE the” ofa Board aid cause OHA Co insist in the fal] of
SG5s that a disclaimer be placed in the HFDC agreenente
Reva practical matter, hovever, neither OHA nor the
(individual, Ipllaistltts objected to the sale of the
{deisis parce:) uatil the £211 of 1994. Te any event,
ISH uh piiaineiite aid not consider challenging the
Skilers power to sell ceded lands until after the Apology
Resolution wae adopted in 1993, OHA's continuing to
Resoeiste for sarket value after the Apology Resolution wa
Befoea is eiso tconduct from which an intention to waive may
Peasonably be inferred.” (The pllaintiffe’ failure to
Effect tothe development plan, which included market hore
Sekore the Luc and Legislature in testimony relating to Act
-41-
*** FOR PUBLICATION ***
318 is “wholly inconsistent with any diseatiafaction’ with
the development pian, alo suggesting waiver of any right to
challenge thes. "(Goo va Hee Fat, 34 Hav. 123, 129° (198),
Goo. v. Gao, 36 Haw. 530
sony
Moreover, HFDC and the state were prejudiced by their
reliance on Ipilaintitta’ acquiescence in the development
plan to sell che Leiali'i parcel]. he testified to by the
Project managers for both uealii [sie] and La'Vopua, there
(tere no objections from OHA ae to the State's power to sell
Public trust lands for those projects until Novenber 1994.
By that tine, however, $31 million had already Deen invested
in beali'i Tele]
(Footnotes omitted.)
The plaintiffs argue that they did not waive their
claim with regard to the Leiali'i parcel. The OHA plaintiffs’
maintain that,
[elfter the passage of the Apology Resolution, and as the
FULL import Of the congr
[glovernment’ and [pubis
‘of Haval'l oF their sovereign
government” and that “the indigenous Hawaiian people never
Sivectly relinguished their claine to eheir inherent
sovereignty as a people or over their national lands to the
United Staten{l" becane evident, the OA Trustees took
sppropriate action to assure that che claim to the “national
As indicated by the trial court, the individual plaintiffs posit
that, “la}ithough OHA did not earlier object to the transfer of
ceded lands for the ultimate sale to honeowners in the Leiali‘i
project, the 1993 legislation [(ise., the Apology Resolution, as
well as, Acts 359 and 329, discussed gupra)] and Mr. Meheula’s
discussions with the OHA Board in [September 1994] were new
events that justified their objection in [September 1994].”
Relying on the ruling and rationale of the trial court,
the defendants maintain that the plaintiffe waived their clains
regarding the Leiali'i parcel because the “[p]laintiffs’ failure
-48-
*** FOR PUBLICATION ***
Oe
to object to the development plan at the LUC and before the
hegislature in testimony relating to Act 318 [(setting forth a
rormila to compensate OHA for the ‘villages of Leiali'i, Maui and
villages of La'i'opua, Hawai'i')] is ‘wholly inconsistent with any
Gissatisfaction’ with the development plan. . . andl,
therefore,] clearly waived any right to challenge the plan." The
defendants further maintain that, *[elven if plaintiffs did not
think to challenge the State’s power to sell [cleded lands until
after the Apology Resolution, OHA’s continuing to negotiate for
smarket value’ after the Apology Resolution was passed is clearly
‘conduct from which an intention to waive may reasonably be
inferred.’*
‘This court has defined waiver as "an intentional
relinguishment of a known right, a voluntary relinquishment of
rights, and the relinguishment or refueal to use a right." Coon
City & County of Honolulu, 98 Hawai'i 233, 261, 47 P.34 348,
376 (2002) (emphasis added) (citation omitted).
‘To constitute a yaiver, there must have existed a right
Tiained co have been waived and the waiving party gust have
had kum adoe—apua) ok cone te ey tater namie the
Sttrich whether a valid waiver existe is genersily ©
eseion of fact, “when the facts are undisputed it may
become a question of law." Hawaiian Hones Comm'n v. Bush,
SSuaw. 201, 266, (3955) (citations omitted); eg alea
Steuart v Spalding, 23 Haw. 502, 527 (1916) ("The question
SENSHar Ts usually a mixed one of law and fact but where
ite undisputed and are susceptible of but one
Tnference it becones one of law for the court."
(eltations omiteed-))
Id. at 261-62, 47 P.3d at 376-77 (some citations and original
ellipsis omitted) (emphasis added). Furthermore,
-49-
*** FOR PUBLICATION ***
must nal. Such intention may be
Indicated by language or conduct, nay be either express or
implied but does not necessarily’ imply that one hat been
misled to his prejudice or into an altered position. waiver
Gepends upon the intention of the party who ie charged with
the waiver. Te say be proven by an expre:
Geclaration Of the party charged with the waiver, Tt may
also be proved by the existence of acts or language so
inconsistent with the purpose of the person charged ¢o stand
upon his rights as to leave no opportunity fora reasonable
inference co the contrary.
v. Lalakes, 35 Haw. 213, 218-19 (2939) (emphasis added)
(internal quotation marks and citations omitted).
In this case, the record indicates that the first tine
that OHA had knowledge that DLNR intended to alienate the
Leiali'i parcel from the public lands trust for the purposes of
residential development was in December 1969 when HFDC filed a
petition with the LUC to reclassify the Leials‘i parcel from
agriculture to urban use. It is undisputed that OHA did not
object to the transfer of the Leiali'i parcel and participated in
negotiations with HFDC regarding the parcel’s fair market value,
pursuant to Act 318, As previously stated, it was not until the
adoption of the Apology Resolution that OHA requested the
@isclainer that its acceptance of funds would not affect any
further claim the native Hawaiian people may have to the Leiai's
parcel. hen HFDC declined to honor their request, the
plaintiffs filed suit.
In support of their position that they did not waive
their claim with regard to the Leiali'i parcel, the plaintitts
essentially maintain that the Apology Resolution gave rise to
their breach of trust claim. Pointing to language in the Apology
-50-
#** FOR PUBLICATION ***
a
Resolution that "the indigenous Hawaiian people never directly
relinguished their claims to their inherent sovereignty as a
people or over their national lands to the United states,”
‘Apology Resolution, Pub. L. No. 103-250, 107 Stat. 1510, the
plaintiffs submit that title to the ceded lands is now clouded.
Having held that the Apology Resolution and related
state legislation give rise to a fiduciary duty by the State, as
trustee, to preserve the corpus of the public lands trust,
specifically, the ceded lands, until such time as the
unrelinguished clains of the native Hawaiians have been resolved,
dt necessarily follows that it was not until at least Novenber
23, 1993, when the Apology Resolution was signed into law by
President Clinton, that the plaintiffs “had knowledge, actual or
constructive, of the existence of . . . a right [clained to have
been waived) at the time of the purported waiver." Coon, 98
Hawai'i at 261, 47 P.3d at 376 (citation omitted). Consequently,
we cannot say that the plaintiffs’ purported waiver was
“intentional,” expressly or impliedly. Hewahewa, 35 Haw. at 218.
Accordingly, we hold that the trial court’s conclusion that OHA’
actions between 1987 and 1994 constituted a waiver of the
plaintiffs’ claims w
clearly erroneous and that, therefore, the
trial court erred in determining that the plaintiffs waived their
claim for injunctive relief with regard to the Leiali‘i parcel
2 the trial court also based its holding on the fact that the
Getendante expended over $21 million dollars on improvenents to the Leieli't
parcel prior ro the tranefer from DLNR to HFDC. However, the question on
(cont ined. .
-51-
*** FOR PUBLICATION ***
b. estoppel
‘The trial court ruled that, *[fJor the same reasons
that (the p]laintiffs waived any challenge to the legality of the
sales of Leali‘i [sic] lands, [the p]laintiffe are estopped from
making that challenge." Specifically, the trial court found
that,
applying equitable estoppel and quasi estoppel principles
to the cage at hand, during the years of negotiationa. and
Planning fer Leal [eiel before [the pllaintitts flea
this lawsuit, [che pllaintisfe did not suggest that they
would file a'lawouit challenging the right ro sell the
Geiais's parcel] to Hoc ana in urn to third parties for
thelr hones. During the
‘The state epent substantial
ing. [the parcel] before
Noveber 1984 when (the pJiaintiffs first filed euit
By their action (or inaction with respect £0 the
(individual [pl laineifes) and conduct {the
plaintiffs caused the HFDC to believe chat no one would
Challenge its acquisition of the [Lelali't parcel) as 1osg
fas OHA and Dine received fair monetary compensation for che
Tends. “Ite pliaineites’ acquiescence in the cevelopment of
Yeali'i [sic] ‘and HPOC'® expenditure of funds: for
infrastructure, and OlA's active participation in
negotiations for an appraised value for the ceded lands
Tnduced the State to continue moving forward with the
housing developeent. The State obtained neces!
changes, eatered into agreements with develope!
agreements vies county officials and pent over 431 million
for infrastructure at Lealli (sic) alone. the state
significantly altered ita position because of the statements
And conduct Of OHA, ae vell ag the inaction of the
[individual [pliaintitfs. Te p)iaineifts are, therefore,
algo estopped from challenging the State's sale of public
trust lands at Leali't (ele).
*(. seontinued)
waiver is “strictly whether che party charged with waiver intended to waive @
Keown claim, lswaewa, 35 Kaw, at 218-19, pat whether the party seeking to
prove waiver wag prejudiced, as was determined by the trial coure, Ae such,
the trial court's! finding that, because OHA aid not object to the transfer of
the Leialit parcel until 1994," #FDC and the State were prejudiced by ehelr
Fellance on the plaintiffs acquiescence in the project does not apply te an
analysis of waiver
-52-
*** FOR PUBLICATION ***
a
Te de true, as argued by the OHA [p]lainestfe, that
the doctrine of equitable estoppel cannot be invoked against
W"Sovermmental agency euch as OKA in the absence of overt
Gelrinenral reliance and "manifest injustice.” The Law
‘eccgnizes that governmental bodies must be able to change
ERSTE"EIGG. Un‘ eSee circumstances. Thus, a mere change of
SREs' by the government does not iaveke estoppel unless the
Seber party fad detrimentally relied upon the agency’
ceeteP petition to such an extent chat it would constitute
SEanieeee injustice" to fail to invoke and apply the
Jocttiae, tn this case, however, based on the facts above,
Ske requisite showings of extensive detrimental reliance by
Gnd manifest injustice £0 the (dlefendants have been
antiafied to invoke equitable estoppel against the OHA
RINRifte:° Thust the doctrine of estoppel prohibits both
rete of [piiaintifts from seeking injunctive relief with
ect to the sale of (the ueiall'i parcel)
(internal footnotes omitted.) (Format altered.)
‘The OWA plaintiffs argue that the trial court erred in
concluding that the doctrine of estoppel barred the plaintiffe
clains because it is ‘manifestly unjust to [nJative Hawaiians to
allow alienation of [cleded [1]ands -- their national lands --
prior to a final resolution of the [nJative Hawaiian land claim.”
Additionally, the OHA plaintiffs argue that the application of
the doctrine of equitable estoppel against the government is not
favored, and, furthermore, “there can be no suggestion here that
OHA wilfully misled the HFDC in its earlier position on the
Leiali'i [parcel] or acted in bad faith.” The individual
plaintiffs appear to contend that estoppel is not applicable in
this case because it is an equitable defense, which cannot be
raised against the plaintiffs because “the 1993 Legislation
obligated the state to seek instructions from the [court before
selling ceded lands without prompting by [the p]laintitts.”
-53-
*** FOR PUBLICATION ***
‘The defendants insist that the trial court correctly
determined that the plaintiffs were estopped from challenging the
transfer of the Leiali‘i parcel because the “unchallenged
findings of facts show that HFDC spent more than $31 million at
Leiali'i over a seven-year period in reliance on OHA’s failure to
object to the project." Accordingly, the defendants assert that
“(e]hese facts squarely raise the defense of equitable
estoppel [.]”
“The theory of equitable estoppel requires proof that
one person wilfully caused another person to erroneously believe
a certain state of things, and that person reasonably relied on
this erroneous belief to his or her detriment.” potter v.
Hawai'i Newspaper Agency, 89 Hawai'i 411, 419, 974 P.2d 51, 59
(2999) (citation omitted). °A species of equitable estoppel, the
Principle of quasi estoppel, precludes a party from asserting to
another's disadvantage, a right inconsistent with a position
Previously taken." Id, at 420, 974 P.2d at 60 (internal brackets
and citation omitted) .
As the OHA plaintiffs correctly point out, *[t)he
application of the doctrine of equitable estoppel againet the
government is not favored." Turner v, Chandler, 87 Hawai'i 330,
333, 995 P.2d 1062, 1065 (App. 1998) (citations omitted) .
However, this court has also stated that the doctrine “is fully
applicable against the governnent if it ie necessary to invoke it
to prevent manifest injustice.” state pavashi v.
-54-
*** FOR PUBLICATION ***
a
Zimring, 58 Haw. 106, 126, $66 P.2d 725, 737 (2977) (internal
quotation marks and citation omitted).
As previously discussed, it was not until the Apology
Resolution was signed into law on November 23, 1993 that the
plaintiffs’ claim regarding the State's explicit fiduciary duty
to preserve the corpus of the public lands trust arose. As such,
it was not until that time that the plaintiffs’ lawsuit could
have been grounded upon such a basis. Consequently, the
plaintiffs cannot be deemed to have ‘wilfully caused [the
defendants] to erroneously believe a certain state of things,
Potter, 69 Hawai'i at 419, 974 P.2d at 59, upon which the
defendants relied to their detriment.
Accordingly, we conclude that the trial court
incorrectly determined that the plaintiffs were estopped fron
challenging the transfer of the Leiali‘i parcel based on their
pre-1993 actions and hold that the plaintiffs’ claims are not
barred by the principles of equitable and quasi estoppel. We now
turn to the plaintiffs’ arguments as they relate to the ceded
lands in general
‘The Ceded Lands in General
2. Sovereign Immunity
With regard to ceded lands in general, the trial court
concluded that:
-55-
*** FOR PUBLICATION ***
Case lay has held that sovereign immunity does not bar
4 suit for injunctive relief to prohibit state officials
from acting in an illegal manners ((Citing in a footnote to
Bele Defense Fund, Gupra.)] The State of Hawai'i has nos
consented, ‘however, to be sued in a lawsuit contesting the
validity ot its title to the ceded lands. "it is the daw in
this jurisdiction that a proceeding againat property in
wien the State of Hawai'l hag an interest ie a suit against
the State and cannot be maintained without the consent of
the state, so that the State ‘and ite interest in land are
inmune fron suit." [(Citiag ina footnote to A
Ld. Kaneahira, 51 Mav. 87, 80, 451 P.26 809, 811
(G963) J) "If it ie made to appear at any stage of the case
that the state clains title, the court’s jurisdiction over
the merite of such claim thereby is ousted under the
Goctrine of sovereign immunity.” {(Citing ins footnote to
40 Haw. 92, 94, 295 rad 620, €22 (1964) ©))
claim for injunctive aad declaratory reliet would
have the effect of depriving the state of control over
Public lands under (HRS) ‘chapters 171 and 2018 ie the
“tunctionat equivalent of a quiet title action,” and ie
barred by sovereign imaunity, [(citing Ina footnore to
ashe o $21 U.S. 261 (1989) -))
Looking Beyond the pleadings to examine the effect” of the
suit and “its impact on these special sovereignty interes
{of the state)," sovereign immunity bare (pi laincifte’
clains to the extent they seck relief based on an allege
[sic] cloud on the State's titie to ceded lands. Where the
"requested injunctive relief would bar the State's principal,
officers from exercising their governmental powers ad
authority over the disputed lands and watera,* and “would
Giminish, even extinguish, che state's control over 2 vast
Feach of land and vaters long deened by the State to be an
integral part of its territory,” sovereign immunity applies.
(iciting ina footnote to Cousr d'Alene)
(Internal footnotes omitted.)
‘The plaintiffs take issue with the trial court’s
reliance on Couer d'Alene. Specifically, the plaintiffs
challenge the trial court's determination that their claims with
regard to the sale of ceded lands in general “were the functional
equivalent of a quiet title action’® and, therefore, barred by
sovereign immunity inasmuch as “*[iJt ie the law in this
jurisdiction that @ proceeding against property in which the
An action to quiet titie is defined as an action brought *by any
person against another person who claina, oF who may claim adversely to the
Plaintétf, an estate or interest in real property, for the purpose of
Getermining the adverse claim." Wks} 669 1a) (1995)
-56-
*** FOR PUBLICATION ***
a
State of Hawai'i has an interest in is a suit against the state
and cannot be maintained without the consent of the state(.]'*
on appeal, the OHA plaintiffs contend that they are not seeking
ownership of property from this court, but “only an order
prohibiting the transfer of [cleded (lands pending the
resolution of [nJative Hawaiian claims." (Emphasis in original.)
As such, the OHA plaintiffs argue that the trial court’s reliance
on Cousr d'Alene, discussed infra, was error. The OHA plaintiffs
submit that the trial court should have, instead, been guided by
Mille Lace Band of Chippewa Indians v. Minnesota, 124 F.34 904
(eth cir. 1997), aff'd, 526 U.S, 172 (1999), discussed infra.
‘The individual plaintiffs similarly maintain that they "do not
seek an ownership determination or even a declaration that they
are entitled to the beneficial use and/or occupancy of the ceded
lands."
The defendants, however, contend that the trial court
correctly relied on Couer d'Alene because, as in this case, *'the
requested injunctive relief would bar the state's principal
officers from exercising their governmental powers and authority
over the disputed lands and waters,’ and ‘would diminish, even
extinguish the State's control over a vast reach of lands. . .
long dened by the State to be an integral part of its
territory.’* (Citing Couer d'Alene, 523 U.S, at 262).
o57-
*** FOR PUBLICATION ***
In Couer d’Alene, the sole issue before the Court was
whether the federally recognized Couer d'Alene Tribe’s (the
Tribe) suit against the State of Idaho, seeking “the beneficial
interest, subject to the trusteeship of the United States, in the
beds and banks of all navigable watercourses and waters (the
‘subnerged lands’) within the original boundaries of the Coeur
@’Alene Reservation,” was barred by sovereign immunity. 521 U.S.
at 264-65. The Tribe styled its suit as a claim for declaratory
and injunctive relief, “alleging an ongoing violation of its
property rights in contravention of federal law and [seeking]
Prospective injunctive relief." Id. at 266, 281. The Court
recognized that “[aJn allegation of an ongoing violation of
federal law where the requested relief is prospective is
ordinarily sufficient to invoke the Young (exception) . [*]
However, this case is unusual in that the Tribe's suit is the
functional equivalent of a quiet title action which implicates
special sovereignty interests.” Id, at 261. The Court, in its
principal decision, determined that the Tribe’s suit was the
as previously indicated, this court, in Pele Defenge Fund, adopted
the rule expresses in x Parte Young, which differentiated between prospective
and retrospective relief, 73 Haw. at 609, 637 P.24 at 1266.” Accordingly. it
Ss the law in this state that, “[ilf the relief aought against « state
official is prospective in nature, then the relief may be allowed regardless
fof the state's sovereign immunity: This ie true even though acconpasied by a
Substantial ancillary effect on the state treasury.” id. (internal quotation
marke and citations omitted); gee discussion suDra
-58-
*** FOR PUBLICATION ***
a
functional equivalent of a quiet title action “in that
substantially all benefits of ownership and control [in the
submerged lands] would shift from [Idaho] to the Tribe." Id. at
282. Moreover, the Court reasoned that the submerged lands ‘have
historically been considered ‘sovereign lands[,’ and] State
ownership of then has been considered an essential attribute of
sovereignty.” Id. at 283 (internal quotation marks and citation
omitted). The Court concluded:
re is apparent, then, that[,) if the Tribe were co prevail)
TaiddPerecelgn Interest in Ste lands and waters would be
Affeccea ina degree fully as intrusive as almost any
Scnceivaple retroactive levy upon funds in ite Treasury.
Sader these particular and special circunstances, we find
the ound exception inapplicable. The dignity and statue of
[e HEME, Sca°eilow idaho to rely on ite Bleventh Asendment
[munity aed te insist upon responding to these claims in
ite own courts, which are open to hear and determine the
Id, at 287-88.
In a concurring opinion, Justice 0’Connor seemingly
attempted to clarify the Court's decision by distinguishing Coeur
@Alene from Ex parte Young. She noted that
tthe Tribe does ot merely seek to possess land chat would
Stheruise remain subject to state regulation, or to bring
S"Tegutatory schese into coupliance with federal
Yee. Rather, the Tribe seeks to eliminate altogether the
Binte's regulatory power over the submerged lands at
Senue _- to establieh not oaly that the state has no right
iSTposaces the property, but also that the property i# not
Sichin Idaho's sovereign jurisdiction at all
Id. at 289 (O'Connor, J., concurring).
As previously stated, the OHA plaintiffs suggest that
the trial court erred in applying the Couer d/Alene analysis and
should look instead to the Eighth Circuit's opinion in Mille
Lacs. In Mille Lace, the Mille Lacs Band of Chippewa Indians
-59-
*** FOR PUBLICATION ***
(the Band), amongst others, brought an action for injunctive and
declaratory relief, seeking to enforce ite alleged treaty rights
to hunt, fish, and gather on state and private lands free of
state regulation. 124 F.3d at 914, The Eighth Circuit held that
the Band’s claims were not barred by sovereign immunity,
reasoning, inter alia, that the Bands’ claims “{sought]
prospective injunctive relief against state officials in their
official capacities for continuing violations of the Bands’
federal treaty rights. As such, they fall squarely within the Ex
parte Young exception to the [sovereign immunity doctrine] .* Id.
‘The court further noted that its holding was supported by the
Coeur d'Alene Court's concurring opinion, which observed that
“{a] Young suit is available where a plaintiff alleges an ongoing
violation of federal law, and where the relief sought is
prospective rather than retrospective." Id, (quoting Couer
diAlene, 521 U.S. at 294 (0’Connor, J., concurring)) (internal
quotation marks omitted) .
In the present cai
the plaintiffs, unlike the Couer
aiAlene plaintiffs, do not seek a determination from this court
that would shift “the benefits of ownership and control [of the
ceded lands} from the state to [thenselves].”" Cover d’Alene, 521
U.S, at 282. Rather, they seek only to enjoin the defendants
from alienating ceded lands.
Based on Mille Lacs and Justice 0’Connor’s concurrence
in Couer d’Alene, a claim seeking injunctive relief with regard
-60-
**% FOR PUBLICATION ***
a
to property rights may be maintained, if it falls within the
Young exception, i.e., allowing only prospective injunctive
relief. Here, as the plaintiffs have repeatedly made clear, they
are not asking this court to return the ceded lands to the
possession of the plaintiffs; they seek only an injunction
barring the future alienation
by way of sale or transfer -- of
ceded lands until their unrelinguished claims to those lands are
resolved via the reconciliation process contemplated by the
Apology Resolution and related state legislation. As such, the
plaintiffs’ requested relief is clearly prospective in nature
and, therefore, not barred by sovereign immunity under the Young
exception.
Based on the foregoing discussion, we hold that the
plaintiffs’ claims with regard to the sale or transfer of the
ceded lands in general are not barred by sovereign inmunity.
Accordingly, we also hold that the trial court incorrectly
determined that sovereign immunity barred the plaintifte’
claims.»
® zn addition to the arguments stated above, the individual
plaintitte, in theit opening brief, argue that the state waived sovereign
Enunicy usder the *Netive Hawaiian Trusts Judicial Relief Act" contained in
Has chapter 673° (Supp. 2006). However, in a previous motion filed with the
Mecuie court, the individual plaineités argued that "{eJhapter 673, Native
fawalian Trusts Judicial Relief Act, does not permit [native Hawaiians to sue
The gtace for return of ceded lande.* inasmuch ae the individual plaintifte
SGuit inva prior pleading thst HRS chapter 673 does not apply in thi
Situation and there ie no other mention of thie argunent in the proceedings
Before the erial court, the plaintiffs have waived this argunent.
~61-
*** FOR PUBLICATION ***
SSS
2. Ripenes:
The trial court, in ruling that the plaintiffe’ clains
with regard to the ceded lands in general were also barred by the
ripeness doctrine, stated:
With respect to ripeness,” Pele Defense fund makes clear
Phat beneficiaries Of the ceded lands trust have standing to
bring suit to enjoin disposition of ceded lands that would
constitute breaches of trust. io evidence wan presented.
however, of any proposed sales of codes lands other than at
Lealt't ‘{eicl. In fact the evidence suggests that the state
has been ‘following a self {-]inposed moratorium on the sal
Of additional ceded lands. ("| Proposed sales could
tn explaining the
t-imposed moratorium,” the trial court stated
‘The Adsinietrator for the Lande Division of the DLNR ((i.e.,
Michael Wilson)) wrote [a senorandual to {the} then Chait of
DLW, stating that ‘a moratorium’ on the sale of ceded lange
was in effect {] and that “the current moratorium ie Saeed of
fhe concern that the sale of ceded lands dininiches the
corpus of the public lands and thereby diminished the
potential return to OHA [[hereinafter, the Hilson
Menorandunl."
At trial, Gilbert Colona-Agaran, chair of the SLNR, testified regarding
the Wilson Memorandum a follows:
© By oma Plaineieee: 80, vere you
working for Michael Wilson at the time, deputy
Girector?
A: Tuy’ Coloma-agaran] : In april ‘95, yes.
Are you familiar with that menorasdin?
Ri Tivelseen ie.
@: And are you familiar with a moratorium that
(then-|pirector Wilson refers to?
A: Yee!
(continued...)
-62-
*** FOR PUBLICATION **
a
constitute breaches of trust, but... not abi sales of
Seded lande would violate the ceded lands trust
(Footnotes omitted.)
‘the OHA plaintiffs argue that the trial court erred in
determining that their claims were not ripe because “the court
need not resolve the breach of trust issue in order to grant
injunctive relief." Additionally, the OHA plaintiffs assert thet
the (trial) court's ruling places [the plaintiffs] on the
horns ofa dilemma, [The plaintiffs] it seems, filed both
fos early and too iate. [They] waited too long on the
Eelalii barcet and not long enough on the moratorium. | (the
Pleineiéfe) must wait until che state takes preliminary
Bigg to enjoin the sale of (cleded (1Jands, but because the
Sete took preliminary steps in the Leielivt transfer,
SGunctive seliet is Barres because it would ‘turn back the
egck and exanine actions already taken by the State.’
‘The defendants
jert that the trial court correctly
determined that the plaintiffs’ claine were barred by the
doctrine of ripeness because the plaintiffs “preemptive [2y]
challenge” the “sale of any and all [cleded [1lands." The
defendants reason that “any particular sale of [cleded [1] ands
could present @ conflict of interest or a breach of fiduciary
auty (for example, if the State proposed to sell for less than
fair market value to a state official for hie or her private
(continued)
eet Rnd could you -- could you tell us what that was
‘bout.
ks Teguess shortly after we got there Michael decided
Ende given the controversy over the sale of ceded
Tends chat we would try not co sell but that if ve
Aanted to nove Forward sone transaction, we would.
Sor if there were basically sales were (sic) already
SSbraves by the oard before we got there we couldn't.
TP properties was (eic] necessary because of some
s you now, we take it case by case.
-63-
*** FOR PUBLICATION ***
eee
benefit) [,]* but that “this (clourt should decline to speculate
as to such future events." Additionally, the defendants argue
that "the trial court rightly declined to enter relief based on
the assumption that the coordinate and co-equal executive and
legislative branches will engage in bad faith and wrongful
conduct in the future. This [court should also decline to do
We have stated that ‘ripeness is peculiarly a question
of timing, and a ruling that an issue is not ripe ordinarily
indicates the court has concluded a later decision may be more
apt or that the matter is not yet appropriate for adjudication.
Sounty of Kaua'i ex rel, Nakazawa v. Baptiste, 115 Hawai'i 15, 36,
165 P.3d 916, 937 (2007) (internal quotation marks and citation
omitted). Moreover, “prudential rules of judicial
self-governance founded in concern about the proper -- and
Properly limited -- role of courts in a democratic society, fand]
considerations flowing from our coequal and coexistent system of
government, dictate that we accord those charged with drafting
and administering our laws a reasonable opportunity to craft and
enforce them in a manner that produc
a lawful resule.* gave
Sunget_Beach Coa: City & County of Honolulu, 102 Hawai'i 465,
483, 78 P31, 19 (2003) (internal quotation marks, original
brackets, and citation omitted). The federal courts have applied
the following test, which we believe is instructive, in
determining whether a particular case is ripe:
-66-
*** FOR PUBLICATION ***
a
because ripeness is peculfarly a question of timing, the
Court must look at the facts as they exist today in’
Gvaluating whether the controversy before us is sufficiently
Concrete to warrant our intervention. The ripeness inguiry
EGtvtko pronger the fitness of the issues for judicial
Secision and the hardship to the parties of withholding
SE oasideracion. The fitness element requires that the
SSoue be prisarily legal, need no further factual
Gevelopment, and involve a final agency action. To meet the
Sirasnip requirement, a party must show that withholding
judicial review would result in direct and imediate
AudéSnip and would entail more than possible financial loss
Rice v. Cayetano, 941 F. Supp. 1529, 1538 (D. Haw. 1996)
(citations and internal quotation marks omitted), rev'd on other
grounds, 528 U.S. 495 (2000).
With respect to the first prong of the federal test,
the plaintiffs mst show that the issue regarding their
entitlement to injunctive relief is fit for judicial decision
because the issue is “primarily legal, need{s] no further factual
development and involve(s] a final agency action." Id, (internal
quotation marks and citation omitted). Here, as the plaintiffs
argue, the issue is fit for judicial resolution inasmuch as they
are not seeking a determination whether the native Hawaiian
people are entitled to ownership of the ceded lands; what they
are seeking is a determination whether an injunction is
appropriate to allow for a resolution of their claims to the
ceded lands without further diminishment of the trust res. There
is no doubt that the issuance of an injunction involves a legal
question. See, €.g., ERCP Rule 65 (2007) (governing the issuance
of injunctive relief); Wahba, LIC v. USRP (Don), LLC, 106 Hawai'i
466, 106 P.34 1209 (2005) (describing injunctions ané temporary
restraining orders), Moreover, the record demonstrates that
-65-
*** FOR PUBLICATION ***
eS
there is no need for further factual development inasmuch as the
facts necessary to decide ripeness are currently before this
court. With regard to the Leiali'i parcel, a final agency action
(i.e, the transfer of the parcel from DLNR to HFDC) has been
taken, and, although “final agency action” with regard to the
ceded lands in general has yet to be taken, the very nature of
the plaintiffs’ requested relief -- that an injunction issue to
protect the corpus of the public land trust until the
reconciliation efforts contemplated by the Apology Resolution and
related state legislation has been completed -- dictates that a
judicial decision regarding the issuance of such an injunction is
appropriate. We, therefore, believe that the fitness element hi
been met.
With respect to the second prong of the federal test,
isc., the hardship requirement, the plaintiffe must show *that
withholding judicial review would reault in direct and inmediat
hardship and would entail more than possible financial 10
Rice, 941 F. Supp. at 1538 (internal quotation marks and citation
omitted). Here, inasmuch ae the Leiali‘{ parcel was transferred
to the HFDC for purposes of developing a residential housing
project, and, although the defendants have voluntarily
@iscontinued development, there exists a real threat that, should
the HFDC proceed with the housing development project, the parcel
could be transferred by the HFDC to third parties. Moreover, as
indicated by the trial court, "the State has been following a
*** FOR PUBLICATION ***
a
self {-Jimposed moratorium on the sales of additional cede
lands." Thus, by the same token, should the State decide to lift
its own moratorium, there is a potential for the sale or transfer
of additional ceded lands. Once the ceded lands are alienated
from the public lands trust, they will be lost forever and will
not be potentially available to satisfy the unrelinguished claims
of native Hawaiians to the lands, as recognized and contemplated
by the Apology Resolution and the related state legislation,
discussed supra. Were this court to withhold consideration of
the plaintiffe’ request for injunctive relief, the State would be
free to alienate the ceded lands from the public lands trust.
And, in so doing, the resulting hardship to the plaintiffs would
be obvious
the alienated lands would be lost forever -- and,
as discul
4 more fully infra, the loss of the land itself
entails a mich greater injury "than possible financial loss."
Were we to determine that the plaintiffs’ claim for injunctive
relief wi
not ripe, they may be left without a remedy while the
corpus of the public lands trust continues to diminish, a result
surely not contemplated by the Apology Resolution and our own
state legislative pronouncements in Acts 354 and 359.
Moreover, were this court to grant the plaintiffs’
requested injunctive relief, it would not be over:
epping
sprudential rules of judicial self-governance," Save Sunset Beach
coal., 102 Hawai'i at 483, 78 P.3d at 19 (original brackets
omitted), because, as previously indicated, such a decision would
-67-
*** FORPUBLICATION ***
OS
not involve a determination whether the native Hawaiian people
are entitled to ownership of the ceded lands; we need only
address whether an injunction is appropriate to allow resolution
of these claims without further diminishment of the trust res.
As such, any injunctive relief granted by this court would allow
Congress and/or the state legislature a “reasonable opportunity
to craft and enforce,” id., relevant laws consistent with the
congressional and legislative calle for reconciliation and
settlement of native Hawaiian clains.
Based on the foregoing discussion, we hold that the
Plaintiffs’ claims -- to the extent they seek injunctive
relief -- are ripe for adjudication and, accordingly, hold that
the trial court erred in determining otherwise. Because the
Plaintiffs’ remaining claims do not necessitate a distinction
between the Leiali'i parcel and the ceded lands in general, the
Following discussion encompasses both the Leiali‘i parcel and the
ceded lands in general.
Rolitical Question
“The political question doctrine, often considered the
most amorphous aspect of justiciability, holds generally that
certain matters are political in nature and thus inappropriate
for judicial review." Nishitani v. Baker, 62 Hawai‘ 281, 250,
921 P.24 1162, 1291 (App. 1996) (citation omitted). In deciding
whether the political question doctrine should be invoked, this
court, in the offs. Hawaiian Affairs ak
-68-
*** FOR PUBLICATION ***
ee
69 Haw. 154, 737 P.2d 446 (1987), adopted the test recited by the
United States Supreme Court in Baker v, Carr, 369 U.S. 186
(2962):
Prominent on the surface of any case held to involve a
political question is found(: (2)] a textually denocstrable
Ronatiestionel commitment of the iesue toa coordinate
political department; {(2)] a lack of judicially
Rfecoverable and manageable standards for resolving ity
{(S)) the iepocsibiiity of deciding without an initial
policy determination of a kind clearly for nonjudicial
Sfecreeions [lal] the impossibility of a court’s undertaking
{neependent regolution without expressing lack of respect
due foordinate branches of goverment; ((5)] an unusual need
for unquestioning adherence co 2 political decision already
tude; or [{6)] the potentiality of enbarrasement from
Guiciferious pronouncements By various departments on one
question
Yamasaki, 69 Haw. at 170, 737 P.2d at 455 (quoting Baker, 369
U.S. at 217) (format altered). The presence of any one of these
ix factors renders a ca
nonjusticiable. Id, Moreover, the
political question doctrine is "essentially a function of the
separation of powers." Id. (citation omitted).
‘The trial court concluded that all the plaintiffs’
clains were barred by the doctrine of political question.
specifically, the trial court ruled that this court has held that
“the issue of whether the Territory of Hawai'i received good
title to the ceded lands ie a non-justiciable political
question,” and, as such, it was precluded from “consider [ing] the
nerits of [p]laintiffe’ claim that the sale of ceded lands is
prohibited due to a cloud on the States’s title due to the
illegality of the overthrow."
= xs previously indicated, the trial court, nevertheless, weat on to
determine that the State had the legal authority to sell ceded lands.
-69-
*** FOR PUBLICATION ***
In challenging the trial court's ruling, the OHA
plaintiffs assert that their claims do not present a non-
justiciable political question because, in their view, they are
“not seeking a judicial resolution of the underlying claim for a
return of lands,” but, instead, are asking only that this court
“protect the trust assets while the diepute is being resolved by
the political branches." In other words, the plaintiffs
specifically assert that they are not “ask{ing] thie [cJourt to
resolve any claim [to the ceded lands}, but only to protect the
trust assets that are in dispute by issuing an injunction barring
the sale or transfer of the [ceded] lands. [The plaintiffe] are
seeking only to have this [clourt protect the [eJeded [1]ands
from dissipation until the political branches can reach a just
solution to this dispute.” In fact, the OHA plaintiffs admit
that “the ultimate resolution of the [nlative Hawaiian clains
must be through the political processes, and it is actively
engaged in these proce:
But this struggle for justice will
te e. au
longer exist when a solution is found." Additionally, the
individual plaintiffs point out that their claims are not barred
by the political question doctrine because the standards that
apply to trusts provide this court with “judicially discoverable
and manageable standards for resolving this issue.”
-10-
*** FOR PUBLICATION ***
a
‘The defendants maintain that the trial court correctly
determined that the plaintiffs’ clains presented non-justiciable
political questions inasmich as, *(flor nearly 100 years{,] the
Hawai'i Suprese Court has foreclosed judicial inquiry into the
State’s title to the [ceded [1]ands because the issue presents a
political question, inappropriate for decision by the judicial
branch.’ Moreover, the defendants argue that there are four
specific re
lone why the plaintiffs’ claims present a non-
justiciable political question: (1) “the case involves
examination of questions for which there is a ‘textually
denonstrable constitutional commitment of the issue to a
coordinate political department’*; (2) “there is a ‘lack of
judicially discoverable and manageable standards for resolving’
this case"; (3) “the ca
ip impossible to decide ‘without an
initial policy determination of a kind clearly for nonjudicial
discretion’
and (4) “[thie clourt cannot undertake an
‘independent resolution without expressing lack of the respect
due coordinate branches of government .‘*
The primary question before this court on appeal is
whether, in Light of the Apology Resolution, this court should
sue an injunction to require the State, as trustee, to preserve
the corpus of the ceded lands in the public lands trust unti2
such time as the clains of the native Hawaiian people to the
ceded lands are resolved. ‘The important distinction here is that
this court is pot being asked to decide whether native Hawaiians
one
*** FOR PUBLICATION ***
SSS
are entitled to the ceded lands. As even the plaintiffs
recognize, the “ultimate resolution of the [nlative Hawaiian
claima must be through the political process." We believe, as
discussed supra, that the Apology Resolution -- which is at the
heart of the plaintiffs’ claim -- and the related state
legislation, give rise to the State’s fiduciary duty to preserve
the corpus of the public lands trust, specifically, the ceded
lands, until such time as the unrelinguished claims of the native
Hawaiians have been resolved. Accordingly, we hold that the
Apology Resolution and the related state legislation provide the
standards needed for determining whether the issuance on an
Andunction is proper. In other words
court -- whether an injunction should issue
the question before this
presente a type of
Givpute that ie traditionally resolved in the judiciary and,
therefore, does not present a non-justiciable political question.
Moreover, we believe that the defendants’ argunente
with regard to four of the six Baker factors, previously
enunerated, are without merit. First, this case does not involve
van examination of questions for which there is a ‘textually
demonstrable constitutional commitment of the issue to a
coordinate political department’ inasmich as the plaintiffs only
Fequest an injunction pending the resolution of the plaintiffs’
underlying claims in the legislative process, and this court need
ot encroach on any issues that have been constitutionally
committed to a coordinate political department in order to
o12-
*** FOR PUBLICATION ***
a
determine if injunctive relief is appropriate. Second, there
are, ao discussed infra, judicially manageable standards for
issuing an injunction. Third, this court need not make "tan
initial policy determination of a kind clearly for nonjudicial
discretion’* in order to determine whether the plaintiffs’
requested injunction is appropriate inasmuch as this court need
only look to the Apology Resolution and, additionally, the
related state legislation, as discussed supra. Lastly, were this
court to grant the plaintiffs’ requested injunctive relief, this
court would not be “undertak [ing] an ‘independent resolution
without expressing lack of the respect due coordinate branches of
government’* because, as previously indicated, the question
whether an injunction is warranted in this case is the kind of
question traditionally reserved for the courts.
Therefore, we agree with the plaintiffs that "the
[trial clourt’s analysis and citations miss(ed] the mark because
[ene plaintiffs are] not seeking a judicial resolution of the
underlying claim for a return of lands, but [are] rather asking
the judiciary to protect the trust assets while the dispute is
being resolved by the political branches. This modest goal is
well within the domain of the judiciary(.1* Accordingly, we hold
the trial court incorrectly determined that the claims pr
ented
by the plaintiffs in thie cage -- to the extent they seek
injunctive relief -- were barred by the political question
doctrine.
“73
*** FOR PUBLICATION ***
ee
Fr Pu fe" Reque: niunction
As previously stated, the trial court -- although not
required -- concluded that the defendants had the explicit
authority under the Admissions Act and the Hawai"i state
Constitution to alienate the ceded lands. Having so concluded,
the trial court summarily denied the plaintiffa’ claim for
Anjunctive relief, reasoning only that,
for injunctive relief to issue on (the pllaintifte’ claim
seeking @ permanent injunction based on the allegation chat
sales of ceded lands constitute a breach of trust, (ene
Pllaintitts mst first prevail on the merits of the
underlying cause of action. The [trial] court only reaches
the issue of “balance of irreparable harm” and "public
interest in support” if the plaintiffs prevail on the
merits.
‘The plaintiffs assert that the trial court erred in
denying their request for injunctive relief because it was not
necessary to first ‘resolve whether the State received ‘good
title’ to grant injunctive relief in this case." As previously
Giscussed, the plaintiffs’ request for injunctive relief is
grounded in their view that the “recognition in [the Apology
Resolution and Acts 354 and 359] of the illegality of the
transfer of [the ceded] lands and the ongoing reconciliation and
negotiation process dramatically reinforces the State's fiduciary
obligation to protect the corpus of the [plublic (1]and [t}rust
until an appropriate settlement is reached.” Additionally, the
plaintiffs maintain that injunctive relief is critical to their
ability to “protect the status quo before these [cleded lands are
lost and the [native Hawaiian people suffer irreparable harm."
The OHA plaintiffs cite to a number of international situations
1
*** FOR PUBLICATION ***
oe
chat they claim *illustrate(] that a moratorium on governmental
action is appropriate to protect the rights of the natives while
efforts to reach a proper settlement are underway." The
individual plaintiffs suggest that this court should look to
general trust law for guidance in determining whether to issue an
injunction and that trust law mandates that an injunction be
issued inasmuch as any sale or transfer of the illegally obtained
ceded lands by the State would constitute a breach of its
fiduciary duties to preserve the assets of the public lands trust
until a settlement is reached
The defendants maintain that the trial court correctly
denied the plaintiffs’ request for injunctive relief because the
plaintiffs have not shown they can prevail on the merits.
specifically, the defendants argue that “the State has the
undoubted and explicit power to sell [cleded [1]ands pursuant to
the terms of the Admission Act and pursuant to [s]tate law. (7)
[The pliaintifts have completely failed to show any basis for
deviating from the terns of the trust or for finding that
applicable [2] tate laws are unconstitutional or void." The
= Rithough ve recognize that international law and situations cited by
the plaintiffs provide support for their requested injunction, we do not
Belitve it is necessary to engage ina discussion of these issues inasmuch at
Sur holding is grounded in Hawai and federal law.
2 the defendants assert that there are five “reasons or bases" for the
state's ‘unchallenged power to sell” the ceded lands: (1) ‘enabling acts
generally and historically have affordea the power to sell to new states";
Sy" the Adaiseion Act specifically grants the power to sell"; (3) ‘the Hawad't
Constitution contirns the power to sell"; (4) "state statutes embody the power
fovseliv; and (5) “the Hawai’ Supreme Court has previously held that the
State has power to sell."
-15-
*** FOR PUBLICATION ***
SS
defendants also argue that “the plaintiffs in our case
specifically disclaim title to the (ceded [1Jands. There simply
are no ‘merits’ on which plaintiffs did or could prevail." The
defendants further assert that “the unprecedented nature of the
plaintiffs’ request is highlighted by their use of the term
‘moratorium.’ It is not even clear whether this term is supposed
to mean something different from ‘injunction,’ and if s0, what.”
‘The test for granting or denying temporary injunctive
relief is three-fold: (1) whether the plaintiff is likely to
Prevail on the merits; (2) whether the balance of irreparable
Gamage favors the issuance of a temporary injunction; and
(3) whether the public interest supports granting an injunction.
Life of the Land v. Arivoshi, 59 Haw. 156, 158, 577 P.2d 1116,
11 (1978); see also Morgan v, Planning Dept’, County of Kauai,
104 Hawai'i 173, 86 P.3d 982 (2004). However, as observed by the
Intermediate Court of Appeals in Penny. Transportation Lease
Hawaii, Ltd., 2 Haw. App. 272, 630 P.2d 646 (1981), “[t]he more
the balance of irreparable danage favors 41
uance of the
injunction, the less the party
king the injunction hae to show
the likelihood of his success on the merits." id. at 276, 630
P.2d at 650 (citations omitted). As pointed out by the parties
and the trial court, *Inlo reported Hawai'i case discusses the
requizemente for entry of a permanent injunction.* However, we
agree with the trial court that ‘it is generally held that ‘ [t]he
standard for a preliminary injunction is essentially the same as
-76-
** FOR PUBLICATION ***
oo
for a permanent injunction with the exception that the plaintiff
must show a likelihood of success on the merits rather than
actual success.’* Accordingly, we believe that the appropriate
test in this jurisdiction for determining whether a permanent
injunction is proper is: (1) whether the plaintiff has prevailed
on the merits; (2) whether the balance of irreparable danage
favors the issuance of a permanent injunction; and (3) whether
the public interest supports granting such an injunction.
‘Thus, where a permanent injunction is sought from an
appellate court, the first elenent of the test is necessarily
concerned with whether the plaintiffs have prevailed on the
merits of the appé See indian Motorcycle Ass’n, 66 F.3d at
1249. Having held that the Apology Resolution and related state
Legislation give rise to the State’s fiduciary duty to preserve
the corpus of the public lands trust, specifically, the ceded
lands, until such time
the unrelinguished clains of the native
» see, e.g., Indian Motorevele Ass'n IZ Ltd. p’ship v, Massachusetts
Mowning Bins asensy, €6 F.3d 1266, 1249 (let Cir. 1995):
Four principal factore govern the appropriateness of
Permanene injunctive relief: (1) whether the plaintitt has
Brevaiied on the merits; (2) whether the plaintif£ will
Bitter irreparable injury absent injunctive relief;
(3) whether the harm to the plaintiff outweighs any harm
threatened by the injunction; and (4) whether the public
[dterest will be adversely affected by the injunction.
(internal quotations marke and citation omitted.)
-17-
*** FOR PUBLICATION ***
$$
Hawaiians have been resolved, we believe the plaintiffs, as a
matter of law, have succeeded on the merits of their claim
inasmich as any future transfer of ceded lands by the state would
be a breach of the State’s fiduciary duty to preserve the trust
res.
Specifically, the language of the Apology Resolution
itself supports the issuance of an injunction. As previously
discussed, we believe, based on a plain reading of the Apology
Resolution, that Congress has clearly recognized that the native
Hawaiian people have unrelinguished clains over the ceded lands,
which were taken without consent or compensation and which the
native Hawaiian people are determined to preserve, develop, and
transmit to future generations. Equally cl
r is Congres
vexpress{ed) . . . commitment to acknowledge the ramifications of
the overthrow of the Kingdom of Hawaii, in order to provide a
proper foundation for reconciliation between the United states
and the [nJative Hawaiian people.” Apology Resolution, Pub. L.
No, 103-150, 107 stat. 1520 (emphasis added). Accordingly, the
Apology Resolution dictates that the ceded lands should be
Preserved pending a reconciliation between the United states and
the native Hawaiian people. Without an injunction, the ceded
lands are at risk of being alienated and, as previously stated,
once the ceded lands are sold or transferred from the public
lands trust, they will not be available to satisfy the
unrelinguised claims of native Hawaiians and will, as discussed
-78
*** FOR PUBLICATION ***
a
more fully infra, undoubtedly have a negative impact on the
contemplated reconciliation efforts.
the plaintiffs’ argument that an injunction is
lary to preserve the status quo pending the resolution of
the native Hawaiians’ clains to the ceded lands is further
supported by the Justice and Interior Departments’ report,
entitled *Prom Mauka to Makai: The River of Justice Must Flow
Freely." As previously stated, the report states: “As [al
matter of justice and equity, this report recommends that
[nJative Hawaiian people should have self-determination over
their own affaire within the franework of [flederal law, as do
Native Auerican tribes.’ (Format altered.) (Emphases added.)
Moreover, the Departments asserted that, “[t]o safeguard and
enhance {nJative Hawaiian self-determination over their lands,
cultural resources, and internal affairs, the Departments believe
congress should enact further legislation to clarify [nJative
Hawaiians’ political status and to create a framework for
recognizing a governnent-to-government relationship with a
representative [native Hawaiian governing body.”
More importantly, the state legislature itself hi
announced that future reconciliation between the State and native
Hawaiians will occur. The Hawai'i legislature, in Acts 359 and
329, discuesed supra, recognized that “the indigenous people of
Hawai'i were denied . . . their lands,” 1993 Haw. Sess. L. Act
359, § 1(9) at 1020 (creating a Hawaiian Sovereignty Advisory
-19-
*** FOR PUBLICATION ***
ee
Commission), and contemplated further action by the legislature
to reach a “lasting reconciliation so desired by all people of
Mawai'i.* 1997 Haw. Sess. L. Act 329, § 1 at 956. Although Act
359, which created the Hawaiian Sovereignty Advisory Commission,
not specifically address the issue of native Hawaiians’ title
to ceded lands, the stated purpose of the Act was to “facilitate
the efforts of native Hawaiians to be governed by an indigenous
sovereign nation of their own choosing." 1993 Haw. Seas. L. act
359, § 2 at 1010, As previously stated, Act 354 recognized that
“ImJany native Hawaiians believe that the lands taken without
their consent should be returned and if not, monetary reparatione
made, and that they should have the right to sovereignty, or the
Hight to self-determination and self-governnent as do other
native American peoples." 1993 Haw. Se:
L. Act 354, § 1 at
1000. Moreover, the legislature "acknowledged that the actions
by the United States were illegal and immoral, and pledge[d) ite
continued support to the native Hawaiian community by taking
steps to promote the restoration of the rights and dignity of
native Hawaiians." Id. Additionally, in act 329, the
moving “toward a comprehensive,
iust.and lasting resolution" regarding native Hawaiian claims to
the ceded lands. 1997 Haw. Sess. Law. Act 329, § 1 at 956
legislature indicated that it w.
(emph
is added) .
-80-
*** FOR PUBLICATION ***
‘The governor, herself, has indicated her commitment -
and, by association, that of the executive branch -- to settling
the native Hawaiians’ clains to the ceded lands. On January 21,
2003, in her “State of the State Address," Governor Lingle
stated, “Here at hone in Hawai‘i[,] I will continue to work with
you [ise., the menbers of the legislature] and with the Hawaiian
community to resolve the ceded lands issue once and for all
Linda Lingle, Governor, State of Hawai'i, State of the State
Address: An Outline of the Governor’s Agenda (Jan. 21, 2003).
Riso, as previously noted, testimony was adduced at
trial that the state has been following a self-inposed moratorium
since 1994 on the sales of ceded lands until a resolution of the
present lawsuit. Such a
1f-imposed moratorium leads to an
inference that questions regarding the title to the ceded lands
exist and, additionally, that the State is apparently able to
comply with ite duties
public lands trustee without having to
alienate the ceded Lands
In sum, all of the aforementioned pronouncements
indicate that the issue of native Hawaiian title to the cede
lands will be addressed through the political process. In this
case, Congress, the Hawai" state legislature, the parties, and
the trial court all recognize (1) the cultural importance of the
land to native Hawaiians, (2) that the ceded lands were illegally
taken from the native Hawaiian monarchy, (3) that future
reconciliation between the etate and the native Hawaiian people
e1-
*** FOR PUBLICATION ***
eee
is contemplated, and, (4) once any ceded lands are alienated from
the public lands trust, they will be gone forever. For present
purposes, this court need not speculate as to what a future
settlement might entail -- i.e., whether such settlement would
involve monetary payment, transfer of lands, ceded or otherwise,
@ combination of money and land, or the creation of a sovereign
Hawaiian nation; it is enough that Congress, the legislature, and
the governor have all expressed their desire to reach such a
settlement. In other words, the aforementioned pronouncements as
they relate and impact the plaintiffs’ claim for injunctive
relief clearly support the plaintiffs’ position that the state
has a fiduciary duty as trustee to protect the ceded lands
ending a resolution of native Hawaiian claims. As such, we
believe that the plaintiffs have met the first prong of the
three-part test for issuance of a permanent injunction, i.e.,
Prevailing on the merits of their claim.
‘The second prong of the test for an injunction is
whether “the balance of irreparable damage favor[s] the issuance
of a temporary injunction. Life of the Land, 59 Haw. at 158,
577 P.ad at 1118. Obviously, without an injunction, any ceded
lands alienated from the public lands trust will be lost and will
not be available for the future reconciliation efforts
contemplated by the Apology Resolution, Acts 354, 358, and 329,
and Governor Lingle. Although an argument could be made that
monetary reparations would be the logical remedy for such loss,
-02-
#** FOR PUBLICATION ***
a
we are keenly aware -- as was Congress -- that “the health and
well-being of the [nJative Hawaiian people is intrinsically tied
to their deep feelings and attachment to the land[.1* Apology
Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (emphasis added) .
Indeed, as more eloquently stated by the trial court:
‘The [native Hawaiian [pleople continue to be 2 unigue and
Ziseinee people with their ovn language, social system,
Gneestral’ and national lands, customs, practices
{hetitutions, ‘The health and well-being of the (native
Mjawallan people ie intrinsically tied eo their deep
‘ond attachsent to the land.” ((Citing in =
to the Apology Resolution.j) 3 .
pudticiene hele at r -
wie f sti
Hawaiian cosmology, and {a ixreplaceable. The satural
Uiitencs < land, air, vater, ocean ~~ are interconnected
find interdependent.
ssatyy Se ee ee om
vaina if part of their
epriiud they care for it aa they do for other members of
their families 1
Euvizonnent ip alive ea sd,
‘ven moraines.
(Footnotes omitted.) (Emphases added.)
Moreover, testimony adduced at trial further supports
and underscores the importance of the land to native Hawaiians
and to their continued “cultural identity . . . spiritual and
traditional beliefs, customs, practices, language, and social
institutions," Apology Resolution, Pub. L. No. 103-150, 107
stat. 1510, ae well as the historical and cultural reasons
therefor. For example, David H. Getches, a professor at the
univereity of Colorado School of Law, was called to testify as
the plaintiffs’ expert. Getches testified that he was a menber
of the editorial board for the 1982 edition of the Felix Coven’s
Handbook of Federal Indian Law, considered “one of the leading
-03-
*** FOR PUBLICATIO!
ee
treatises on Indian law,* and authored the chapter on native
Hawaiians, He was qualified as an expert in the field of
“natural resources law," without objection. with regard to the
ceded lands, Getches testified:
Q. (By plaintiffs’ counsel] You have said that
Preventing ceded lands from being transferred would keep the
glains situation from becoming more complicated, preserve
Flexibility, and be consistent with the incent of cone
and the state legislature. Based on your knowledge of the
history of native Hawaiian claime[,] weat ss 20 special
about these lands?
A. (By Getches) 1 think that what ie special about
7 mx. This Te haghly umveual to be able fo
trace thie mich land otiil in public Gwership back to tre
time of dispossession, the very root of these Claire
Secondly, this ie land waich my understanding ie ha
been traditionally used in sone places by native people for
traditional purpose:
‘thir, fa ” mn s 1
on ie one rr
So there is certainly sonething special above tines tesa
when if cones to their use and disposition in the future,
Purther, T think that it ie notable that the objection
Eo the use of these lands is coming now by the only lessliy,
constituted voice for the present aay successors to the
people who were dispossessed, Thi Je as
Hhis cage. "And I think those reasons all support she
Conclusion that there ia something special about ‘the
snae’
© “can'a political entity have governance without
having any territory?
* u ave relanty with
land. ‘There afe sone exceptional examples. Terseiiees
before there was an Terael had a notion of governance, It
is very difficult for'a government to operate without
territorial boundaries.
O Is governance important? re land important to
native people for cultural survival as well?
‘a Yea. Ae I indicated, there are traditional uses of
land, and in'particular the land you were asking me aboce,
that'make it especially important. Land generally for
hnative people -- I am now speaking based on my kaowicdge of
Indian tribes throughout the United States and the on
have worked with =~ dai jeneraLiy ext) i as
2) ieterninati ‘Spteasion,
2 of a: 2 a)
people have said Tt 0 me. at weil, Eo
ne al roots, going back to the ancestors that cam
be felt and who vere known and the ancestors who were
unknown and exist only in the epiritual world, raat
connects present day communities with one another, within
84.
*** FOR PUBLICATION ***
oo
(Bmphases
those cultural roots. So the Jand is sysbolic for that,
SRStE SS HEIs tor burial places or Just the feeling that
this Je the place of inportance
Finally, a ual fulfilinent
someening we 68 not ae Oe love cert ene tna-apiritual way. I love certain
HMREEARES CT Go and sone that rown. But it is really,
pitegiaisferent. having the Land, water, nature connection
That native people have. I don’t Like seneralizations about
sath veGroupe. "And what {4-conmon among thes. hie is the
« ety 2
with tend eh or
added.)
olive Kanahele was called as a witness by the
plaintiffs. She holde a bachelor of arts degree in Hawaiian
Studies and is a "kumi hula” or dance teacher. In addition to
teaching dance, ise., the hula, Kanahele described learning about
ancient Hawaiian chants and testified specifically regarding
chants that tell the story of Pele and Hiiaka, deities of the
Life cycle. According to Kanahele,
pele cones and she erupts and her lava goes all over the
Jelge Gna also extende land. And Hilaka comes along and her
function as the eg3 chile {eto allow things to grow
saree and. and'co he’s the healer of the family and she
PEaio ene ands and things begin to grow. And as the things
Begin co grow, then it becomes suitable for. . - humans
vei? te live'on.
linen asked about “the land," Kanahele testified:
‘the land itself... {9 the deity, Pele, The land it
TEE fade from fire and it comes fron out of the earth.
oa Know, Toean give you a little geneaology (sic) of the
yee fominy. “tne pele family comes from -~ the mythological
Reneaclogy: (eicl of the Pele fanily is that the nother is
EERE TORL. {eStne other Earth, she is the earch and all of
tiiue Ghilires are born fron different parts of her.
Pele i born from the natural channel of @
fenale, the conse from the wonb. And eo... Ber
feeaSssbiticy 12 co go back into the wonb of the nother and
Eon bring cut ail of these things that ve call land, that
we UU Peagha ane lava and eventuaily will becose Land.
‘One af the -- one of the ost amazing Literary work
that ve have ie the kumlipo. .. . The kemulipo spane
Seterations of people... And the first era of the
*** FOR PUBLICATION ***
eee
sumulipo, the very first Line of the kumlipe talks about
the making of the earth
© 1 find why does it have to be earth, you ask me?
it has to be earch because as man we need -—- we need
land to live on. That le =~ that is our foundation” kat
ze a ae their
foundation. and ie their identity.
(Bmphases added.) Based on the foregoing, we believe the second
Prong of the test for an injunction, i.e., irreparable danage,
has been met. Life of the Land, 59 Haw. at 158, 577 P.2d at
aus.
‘The last prong of the test for an injunction is whether
“the public interest supports granting an injunction." Id.
Here, we need look no further than the legislative pronouncement
contained in Act 329, declaring that a “lasting reconciliation
(is] desired by all people of Hawai'i,” 1997 Haw. Sess. L. Act.
329 § 1 at 956, to conclude that the public interest supports
granting an injunction.
We firmly believe that, given the “crucial inportance
lof the ‘aina or land to] the (native Hawaiian people and their
culture, their religion, their economic set-sufficiency, and
their
je of personal and community well-being,* any further
diminishnent of the ceded lands (the ‘aina) from the public lands
trust will negatively impact the contemplated
conciliation/settlenent efforts between native Hawaiians and
the state,
-86-
*** FOR PUBLICATION ***
a
Ie is well-settled that 2 “[e]ettlement is an agreenent
to terminate, by means of mutual concessions, a claim that is
disputed in good faith . . . and is designed to prevent or put at
end to Litigation.” a ve ker, 102
Hawai'i 237, 251, 65 P.3d 1028, 1043 (2003) (internal quotation
marks, original brackets, citation, and footnote omitted). The
continued diminishment of the public lands trust means that any
land sold or transferred to third parties will be lost and, thus,
unavailable for settlement purposes. As such, native Hawaiians
would be placed in an unfair and disadvantaged position inasmuch
as they may, ultimately, be forced to accept less-than-desirable
settlement terms and make concessions that they would not have
otherwise made had certain ceded lands, for example, been kept in
the public lands trust. Moreover, the State, acting as both the
trustee of the land (with the power to alienate it) and a major
participant in the negotiation process, would be in a more
advantageous position and have greater bargaining power. In our
view, enjoining the defendants from selling or otherwii
transferring to third parties any ceded lands from the public
land trust until the claims of the native Hawaiians to those
lands ave resolved and, thus, preserving the status quo and the
trust res, would help in leveling the playing field during the
pendency of settlement negotiations and reconciliation process
-87-
*** FOR PUBLICATION ***
SS
contemplated by the Apology Resolution and related state
legislation discussed supra. Cf. Hosp, Klean of Tex., Inc, v.
United States, 65 Fed. Cl. 618 (2005) (finding lost opportunity
to compete for contract on level playing field sufficient to
constitute irreparable harm for purpose of issuing temporary
restraining order); Regal-Beloit Corp. v, Drecoll, 955 F. supp.
849, 867 (N.D. I11. 1996) (injunction iesued to level the playing
field of the parties).
Finally, as indicated by the plaintiffs, their request
for an injunction is further supported by the United states
Supreme Court’s decision in Lane v, Pueblo of Santa Rosa, 249
U.S. 110 (1919). In Lane, the plaintif£, ‘an Indian town,”
brought a claim seeking to enjoin certain governmental officials
from “offering, listing, or disposing of certain lands in
southern Arizona as public lands of the United stati
" 249 uL8.
at 111, The plaintiffs alleged two grounds for their suit:
(2) “that under the laws of Spain and Mexico it had, when that
region w
acquired by the United States, and under the
Provisions of the treaty it now hae, a complete and perfect title
to the lands in question"; and (2) “that in disregard of ite
title the defendants are threatening and proceeding to offer,
List and dispose of these lands as public lands of the United
States.” Id. The court “of first instance" granted the
defendants’ motion to dismiss. Id. On appeal, the Court of
*** FOR PUBLICATION ***
a
Appeals of the District of Columbia held that the plaintiff's
claims entitled it to relief and granted its requested permanent
injunction. Id, The defendants challenged the Court of Appeals
decision. Although, ultimately determining that the Court of
Appeals should not have granted the permanent injunction because
that proceeding did not afford the defendants the opportunity te
answer the merits, the Court observed:
‘the defendants assert with mich earnestness that the Indians
Techie pucbio are wards of the United States -- recognized
So such by the legislative and executive departnent
that, in consequence the di spo
Adthu"ehels owe contol, bue subject to such regulations
“Sggrees my prescribe for their benefit and protection.
Seeiming. without eo deciding, that ehis La ali true, we
Shinn ie nae ne reel bearing on the point we are
Sonsidering, ‘certainly(,] it would not justify che
Seleadante in treating the lands of these Indians -- to
Gnich, according to the Dill, they have a complete and
Dereece title, as public lands of the United States and
Bftponing of the ame under the public land laws. That
wid not be an exer:
zt the indians are not bere
sataplieh any over oF SanAGL sn dioonat or
Sasiniatrative officers in disregard of their full
SDN DOr their capacity to maintain such a suit we
Gneereain no doubt. The existing wardship Ss not an
Sbetacie, as ie shown by repeated decisions of this court(.)
bane, 249 U.S. at 113 (emphasis added) (footnote omitted). The
Court held that
the decrees of both courts below should be reversed and the
Care remanded £0 the court of firet instance, with direction
eegyekEule’ ene motion to ditmiss, to afford the defendants
So Sppertunity to answer the bill, (and) to arant an order
Seacreining then from in any wise offerin
i 2 ‘he final
‘Secreel! 7
Id. at 114 (emphasis added) .
-89-
*** FOR PUBLICATION ***
«Sao
As the defendants in this case point out, the facts in
the instant case differ from those in Lang inasmuch the
plaintiffs do not assert that they have “complete and perfect
fitter and do not “seek judicial resolution of any controversy,”
#8 well as the fact that “Lane considered only the executive
branch’s power to deal with Indian land.” Nevertheless, Lane is
instructive to the extent that it demonstrates the Court's
rationale for ordering that injunctive relief be granted pending
final resolution of claims. The fact that Lane involved a
Judicial resolution for a controversy versus a legislative
resolution as in the instant case is, in our view, a distinction
without a difference
Based on the foregoing discussion, we conclude that the
plaintiffs have established that injunctive relief is proper
Pending final resolution of native Hawaiian claime through the
political process, Accordingly, we hold that the trial court
erred in denying the plaintiffs’ request for injunctive relief,
G. The Plaintiffs’ Remaining contentions
Tn light of the above discussion, we need not address
fhe OHA plaintiffa’ remaining contentions regarding declaratory
relief or certain evidentiary rulings made by the trial court.
IV. concuuszon
Based on the foregoing, we hold that: (1) the Apology
Resolution and related state legislation, give rise to the
State's fiduciary duty to preserve the corpus of the public lands
-90-
#** FOR PUBLICATION ***
ee
trust, specifically, the ceded lands, until such time as the
unrelinguished claims of the native Hawaiians have been resolved;
(2) the trial court correctly determined that this court's
unpublished decision in Trustees of the Office of Hawaiian
Affaire v. Board of Land and Natural Resources, No. 19774 (Haw.
Mar. 12, 1998) (mem.), did not collaterally estop the plaintiffs’
claims in this case inasmuch as the elements of collateral
estoppel, see Keahole Def. Coal., Inc, v. Bd, of Land & Natural
Ress, 110 Hawai'i 419, 429, 134 P.3d 585, 595 (2006), are not
pre
wnt; (3) the plaintiffs’ claim for injunctive relief with
regard to the Leiali‘i parcel is not barred by sovereign inmunity
based on our conclusion that the $31 million expenditure on
infrastructure for the Lesali‘i parcel had only an ancillary
effect -- albeit a substantial one -- on the state treasury, gee
Kaho'chanchano v. State, 114 Hawai'i 302, 337, 162 P.3d 696, 732
(2007); (4) inasmuch as the Apology Resolution and related state
legislation give rise to a fiduciary duty by the State, as
trustee, to preserve the corpus of the public lands truat until
such time as the unrelinguished claims of the native Hawaiians
have been resolved, the trial court's conclusion that OHA's
actions between 1987 and 1994 constituted a waiver of the
plaintiffs’ claims was clearly erroneous and, therefore, the
plaintifts did not waive their claim for injunctive relief with
regard to the Leiali'i parcel; (5) the plaintiffs were not
estopped from challenging the transfer of the Leiali'i parcel
-91-
*** FOR PUBLICATION ***
oo
based on their pre-1993 actions because it was not until the
Apology Resolution was signed into law on Novenber 23, 1993 that
the plaintiffs’ claim regarding the State’s explicit fiduciary
Guty to preserve the corpus of the public lands trust arose;
(6) inasmich as the plaintiffs’ requested relief is clearly
Prospective in nature, the plaintiffs’ claims with regard to the
sale or transfer of the ceded lands in general are not barred by
sovereign inmunity; (7) the question whether an injunction is
appropriate to allow resolution of the plaintiffs’ unrelinguished
claims without further diminishnent of the trust res is ripe for
adjudication; (@) the question whether an injunction should issue
Presents a type of dispute that ie traditionally resolved by the
courts and, therefore, does not present a non-justiciable
political question; (9) the appropriate test in this jurisdiction
for determining whether a permanent injunction is proper ie:
(a) whether the plaintiff has prevailed on the merits,
(®) whether the balance of irreparable damage favors the issuance
©f @ permanent injunction; and (c) whether the public interest
Supports granting such an injunction; and (10) the plaintiffs
have
‘ablished that injunctive relief is proper pending final
resolution of native Hawaiian claims through the political
proces
Accordingly, we vacate the trial court’s January 31,
2003 judgment and remand this case to the circuit court with
instructions to issue an order granting the plaintiffs’ request
-92-
*** FOR PUBLICATION ***
for an injunction against the defendants from selling or
otherwise transferring to third parties (1) the Leials‘i parcel
and (2) any other ceded lands from the public lands trust until
the claims of the native Hawaiians to the ceded lands have been
resolved.
on the briefs: Gpor—
sherry P. Broder, Bi fotoansmr
Jon M. Van Dyke, and
Melody MacKenzi¢,
for plaintiffe-appeliants
Office of Hawaiian Affairs Ooo
William Meheula (of Winer
Meheula & Devens) and etal Rbe
Hayden Aluli, for individual
plaintiffs-appellants
Aluli, et al
Petes Gr nueere pose
William J. wynhoff
and Sonia Faust,
Deputy Attorneys General,
for defendants-appellees
-93-
|
00b1d270-5dfa-4328-ac3d-0b8ea84cf0fa | Berinobis v. Siu | hawaii | Hawaii Supreme Court |
No. 28864
IN THE SUPREME COURT 0
TE STATE OF HAWAT‘z
SHARON A. F. BERINOBIS, Respondent /Plaintiff-Appellee,
DARRELL
aka Nicky Catering aka Nicky Barbeque,
Petitioner/Defendant-Appel lant
CERTIORARI TO THE INTERMEDIATE COURT
(CIV. NO. 1RCO7-1-3660)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORART
(By: Moon, C.J., for the court")
Petitioner/defendant-appellant Darrell Siu's
application for writ of certiorari, filed August 18, 2009, is
hereby rejected,
DATED: Honolulu, Hawai'i, September 28, 2009.
Richard Hacker, FOR THE COURT:
for petitioner/defendant-
appellant, on the
application
00 S:HY 82 43S e002
aa
Considered by: Moon, C.J., Nakayana, Acoba, Duffy, and Recktenald,
|
d622e38a-ad2b-42ff-84e0-758dfb39be0f | Cawthon v. Ching, Director, State of Hawaii, Department of Labor and Industrial Relations | hawaii | Hawaii Supreme Court | no. 30086
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ss SS
DEBBIE L. CAWTHON and RONALD D. CAWTHON,
Petitioners, 3
t 490 6002
DARWIN CHING, DIRECTOR, STATS OF HAWAI'I DEPARTMENT
OF LABOR AND INDUSTRIAL RELATIONS and
GARY HAMADA, ADMINISTRATOR, WORKER'S COMPENSATION
DIVISION, STATE OF HAWAI'I, DEPARTMENT OF LABOR
AND INDUSTRIAL RELATIONS, Respondents.
ORIGINAL PROCEEDING
(By: Moon, C.J, Nakayama, AGObEY Duffy, and Recktenvald, JJ.)
Upon consideration of the petition for a weit of
mandamus filed by petitioners Debbie L. Cawthon and Ronald 9.
Cawthon and the papers in support, ‘t appears that the furnishing
of medical care and the payment of benefits under HRS Chapter 366
are not ministerial duties of the respondents. Therefore,
petitioners are not entitled to mandamus relief. See HRS § 602-
5(3) (Supp. 2008) (The supreme court has jurisdiction and power
to issue write of mandamus directed to public office!
to compel
them to fulfill the duties of their offices.); In Re Disciplinary
Rd. Of Hawais Supreme Court, 91 Hawai'i 363, 368, 984 P.2d 688,
693 (1999) (Mandamus relief is available to compel an official to
perform a duty allegedly owed to an individual only if the
individual's claim is clear and certain, the official's duty is
ministerial and so plainly prescribed as to be free from doubt,
and no other remedy is available.); Salling v. Moon, 76 Hawai'i
273, 274 n, 3, 874 P.2d 1098, 1099 n.3 (1994) (“A duty is
ministerial where the law prescribes and defines the duty to be
oan
performed with such precision and certainty as to leave not
to the exercise of discretion and judgment.”). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ
mandamus is denied.
DATED: Honolulu, Haw
+ October 19, 2009.
Gm
Beewen Gromer ree
(2
Pore, Sasa +
Now €, Aelita
|
ea274ac4-0c7c-40fe-95fc-e59bb61ceff7 | In re RGB, a Minor | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 20582
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
IN THE INTEREST OF 3 g
— “8B
A wzwon 8 oF
oz 8
3
ado
8
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FO-S NO. 01-0063)
(By: Acoba, J., for the court")
The Application for Writ of Certiorari filed on
August 13, 2009 by Petitioner/Mother-Appellant is accepted and
will be scheduled for oral argunent. The parties will be
notified by the appellate clerk regarding scheduling.
Honolulu, Hawai'i, September 23, 2009.
DATED:
FOR THE COURT:
—
Associate Justice
James Ireijo, on
the application for
petitioner/mother-
appellant.
) considered by: Moon, C.J., Nakayama, Acoba, Duffy, and
Recktenwald, Jd
|
2958524b-4a2f-45bc-a54f-633c5ef02f1b | Keliihananui v. Evans | hawaii | Hawaii Supreme Court | Considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and
1
Intermediate Court of Appeals Chief Judge Nakamura, assigned by reason of
vacancy.
NO. 29737
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
JANICE K. M. CHUNG KELI#IHANANUI, Petitioner,
vs.
DR. EVANS, PSYCHIATRIST, OAHU COMMUNITY CORRECTIONAL
CENTER, Respondent.
ORIGINAL PROCEEDING
ORDER
(By: Duffy, J. for the court1)
Upon consideration of petitioner Janice K. M. Chung
Keli#ihananui’s papers filed on October 13, 2009, which request
additional time to file a motion for reconsideration of the
April 21, 2009 order denying the petition for a writ of mandamus,
IT IS HEREBY ORDERED that the request for additional
time to file a motion for reconsideration is denied.
IT IS FURTHER ORDERED that the clerk of the appellate
court shall not accept any further filings in this case.
DATED: Honolulu, Hawai#i, November 2, 2009.
|
2ab16106-896d-4abf-bff7-ca85edc0cfdd | Mathison v. Hawaii Paroling Authority. | hawaii | Hawaii Supreme Court | No, 30117
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
KENNETH WAYNE MATHISON, Petitioner, 3
HAWAII PAROLING AUTHORITY, Respondent. =
ORIGINAL PROCEEDING J 3
(By: Moon, C.J. Nakayama, AGoEa Duffy, and Recktenwald, 33.)
Upon consideration of the petition for a writ of
mandamus filed by petitioner Kenneth Wayne Mathison and the
papers in aupport, it appears that providing inmates with
discovery of minimum term fixing materials is discretionary under
the Hawaii Paroling Authority’s administrative rules and is not
mandated by HRPP Rule 16. See HAR § 23-700-22(g) ("An inmate may
be afforded the opportunity, subject to security considerations,
to consider and review materials the [Hawaii Paroling] Authority
has that pertain to the fixing of the inmate’s minimun term.”
HRPP Rule 1 ("[The HRPP] rules shall govern the procedure [in all
penal proceedings] in the courts of the State(.]"). Therefore,
petitioner is not entitled to mandamus relief. See HRS § 602-
5(3) (Supp. 2008) (The suprene court has jurisdiction and power
to issue writs of mandamus directed to public officers to compel
them to fulfill the duties of their offices.); In Re Disciplinary
Bd. Of Hawaii Supreme Court, 91 Hawai'i 363, 368, 984 P.2d 688,
693 (1999) (Mandamus relief is available to compel an official to
perform a duty allegedly owed to an individual only if the
individual's claim is clear and certain, the official's duty is
oats
ministerial and so plainly prescribed as to be free from doubt,
and no other renedy is available.); Salling v. Moon, 76 Hawai'i
273, 274 n. 3, 874 P.2d 1098, 1099 n.3 (1994) (“A duty és
ministerial where the law prescribes and defines the duty to be
performed with such precision and certainty as to leave nothing
to the exercise of discretion and judgment.”). Accordingly,
I? 1S HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, October 30, 2009.
Spm
Beas COT Sepa
Dae
Gare Rigs oe
lo Cllr Cod
|
651eaf93-b5a8-4260-bff6-477ab7b7a918 | State v. Driessen | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28894
IN THE SUPREME COURT OF THE STATE OF HAWAT'.
62.38 sug
STATE OF HAWAI'I, Respondent-Plaintiff-Appe
ors
Petitioner-Defendant-Appe:
GREGORY DRIESSEN,
ne
CERTIORARI TO THE INTERMEDIATE COURT OF APP!
(CR. NO. 07-1-0211)
NG_APPLICATION
(By: Nakayama, J., for the court!)
Petitioner-Defendant-Appellant’s application for writ
is hereby rejected.
oni
of certiorari filed on August 19, 2009,
e Fy
FOR THE COURT:
SEAL”
Beets Le toy uri os.
Associate Justice
Boe wt
Linda C.R, Jameson
for petitioner-defendant-
appellant on the application
‘considered by: Moon, C.J.» Nakayame, Acoba, Duffy, and Recktenwald, J
|
a02eac42-2d49-47c2-97aa-00467b3dcf9b | State v. Mattson | hawaii | Hawaii Supreme Court | No. 29170
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAT'L,
Respondent /Plaintiff-appellee
vs
gaus
JOSEH MATTSON, IIT,
Petitioner /Defendant-Appellant al
a
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 07-1-1984)
By Reoben de for the core et
‘The application for writ of certiorari filed by
DATED: Honolulu, Hawai'i, October 14, 2009.
oe
Qa cw
(SIMEON R. ACOBA, JR.
Associate Justice > of
James S. Tabe, Deputy
Public Defender, on the
application, for
petitioner /defendant-
appellant.
* Considered by Moon, C.J. Nakayama, Acoba, Duffy, and Recktenwald,
as.
|
06af8647-7bb7-4b14-b4aa-1776eb25dbe1 | Carswell v. Department of Land and Natural Resources, State of Hawaii | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28730
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
DONN CARSWELL, GALE CARSWELL, FRANK 0. HAY, PAUL T. MATSUNAGA,
ARLINE Y. MATSUNAGA, LINDA M. ALIMBAYOGUEN, PETER’ BECKERMAN,
PETER K. BALDWIN, SAMUEL BLAIR, PAULETTE BURTNER, JOEL CAVASSO,
ERIK P. COOPERSMITH, PRANK W.N. COX, VIRGINTA’N.#. DUNAS,
ELIZABETH DUNFORD, GLENN HONTZ, WAYNE JACINTHO, CRYSTAL S. JONES,
RICHARD C. JONES, DAVID KOCH, 'LEALANI CORPORATION, JOANN GIVENS,
MICHAEL GIVENS, BASIL L. MAYO, SHERILL E. MILLER, BARBARA
PUTZIER, KARL RAMIREZ, PATRICIA SHEEHAN, ROBERT T. SWENEY, VICKY
TAYLOR, A.J. TOULON, JR., ELIZABETH TOULON, WAIMEA GARAGE, LTD.,
CECILIA A, WILLTAMS, HARWOOD D. WILLTAMSON, NANCY H. WILLIAMSON,
CYNTHIA WILSON, JAMES WILSON, WATYEE CARMEN WONG, AND DOES 1-94,
Pet itioners/Plaintiffs-Appellants,
and
PAUL KYNO AND CRAIG WISEN, Respondents/Plaintifts~
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE 0}
INDIVIDUAL DOES 1-10, DOE PARTNERSHIPS 1-10,
CORPORATIONS 1-10, AND DOB ENTITIES 1-10,
Respondents/Defendants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. No. 6-1-0049)
CATION FOR WR)
(By: Duffy, J., for the court")
Petitioners/Plaintiffs-Appellants’ application for writ
of certiorari, filed on September 9, 2009, is hereby rejected.
DATED: Honolulu, Hawai'i, October 12, 2009.
Daniel G. Hempey FOR THE COURT:
for petitioners/
plaintiffs-appellants Vom e Deine
on the application
Associate Justice
Considered by: Moon, C.J., Nakayama, Acsba, Duffy, and Recktenwald,
aa
G3,
|
ea9b6036-84aa-4d44-aa38-e41abfe94638 | State v. Rapozo | hawaii | Hawaii Supreme Court |
wo. 29215
IN THE SUPREME COURT OF THE STATE OF HAWAZ'T
STATE OF HAWAI'T,
Respondent /Plaintiff-appellant, | 3
vs. 3
TANYA RAPOZO, aka Tanya Rapoza, =a]
Petitioner /Defendant Appellee. ag. =
sf =
—
CERTIORARI 10 THE INTERMEDIATE courr oF ape? |B
(CR. NO. 07-01-0760)
ORDER _ACCEPTH LORART
(By: Recktenwald, J. for the court")
Petitioner/Defendant-appellee Tanya Rapozo’s
application for writ of certiorari filed on September 1, 2003, is
hereby accepted and will be scheduled for oral argument. the
parties will be notified by the appellate clerk regarding
scheduling,
DATED: Honolulu, Hawai"i, October 9, 2009
FOR THE COUR
Associate Justice
Alvin K. Nishimura,
on the application’ for
petitioner/defendant-
appellee.
2 Considered by: Moon, ¢.J., Nakayama, Acoba, Duffy, and
Recktenwalé, JJ
oad
|
b505fe85-ce41-4efd-911b-683076d018b3 | Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28840
IN THE SUPREME COURT OF THE STATE OF HANAT'T
KONA VILLAGE REALTY, INC., et al., Respondents-Appgqlees
o3ns
SUNSTONE REALTY PARTNERS XIV, LLC, et al.
Pet itioners-Appellants.
MOF AY Sz a39 cage
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. No. 05-1-88k)
ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI
WITHOUT PREJUDICE
(By: Nakayama, J., for the court*)
1 in the above-
Tt appearing that the judgment on app
referenced matter has not been entered by the Intermediate Court
of Appeals, see Hawai'i Revised Statutes § 602-59(a), as amended
by Act 149 of the 2006 Hawai'i Session Laws; sea algo Hawai"!
Rules of Appellate Procedure (HRAP) Rule 36(b) (1) (2006),
IT IS HEREBY ORDERED that petitioner-appellant’s
application for writ of certiorari, filed on September 24, 2009,
is dismissed without prejudice to re-filing the application
(Mo later than 90 days after the
pursuant to HRAP Rule 40.1(a)
judgment on appeal
filing of the intermediate court of appeals’
or dismissal order, any party may apply in writing to the supreme
court for a writ of certiorari.”).
DATED: Honolulu, Hawai'i, September 25, 2009.
FOR THE COURT:
ER
Ruut : 2
Associate custice | SEAL |
Ve oe wh
court: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit
udge Crandall, in place of Recktenwald, J-,| recused,
|
3be56ca7-b23d-43cf-9fe1-bf0c99911872 | Birano v. State | hawaii | Hawaii Supreme Court | wo. 29050
IN THE SUPREME COURT OF THE STATE OF HAWAPE!=
oa
STATE OF HAWAI'I, Respondent/Respondent-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.2.P. NO. O7-1-0012; CR. NO. 01-1~1154)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORART
(By: Nakayama, J., for the court!)
Petitioner/Petitioner-Appellant’s application for writ
of certiorari filed on July 23, 2009, is denied without prejudice
to Petitioner filing another Hawai'i Rules of Penal Procedure
(HRPP) Rule 40 Petition.
DATED: Honolulu, Hawai'i, September 4, 2009.
FOR THE COURT:
Peuen Bs
Associate Justice
cynthia A. Kagiwada
for Petitioner/Petitioner-
Appellant on the application
‘considered by: Moon, C.J.» Nakayama, Acoba, and O¥ffy, 93. and
Circuit Judge Kim, in place of Recktenwald, J., recused.
|
00a3a96f-8cf2-485a-8815-49741f7683f4 | Unite Here! Local 5 v. City and County of Honolulu | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28602
IN THE SUPREME COURT OF THE STATE OF HAWAT'Z
Civil No, 06-1-0265
ERIC W. GILL:
UNITE HERE! LOCAL 5;
‘TODD A.K. MARTIN, Plaintiffs,
CITY AND COUNTY OF HONOLULU, a municipal corporation;
KUILINA RESORT COMPANY, a Hawai'i corporation, Defendants,
=
Bole
ana
Ha €1 100 my
exis
KUILIMA RESORT COMPANY, a Hawai'i general =
partnership, Counterclaim Plaintiffs s|e
Ie
\
in
vs.
y
UNITE HERE! LOCAL 5 HAWAI'I, a Hawai'i labor organizat&@:
ERIC W. GILL, an individual, Counterclaim Defendants.
67
KEEP THE NORTH SHORE COUNTRY, a Hawai'i non-profit corporation;
and SIERRA CLUS, HAWAI'I CHAPTER, a foreign non-profit
corporation,’ Petitioners/Plaintiffs-appellants,
vs.
CITY AND COUNTY OF HONOLULU; HENRY ENG, Director of Department
of Planning and Permitting, in his official capacity;
KUILIMA RESORT COMPANY, a Hawai'i general partnership,
Respondents /Defendants-Appellees.
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
6-1-0265 & 06-1-0867)
(crv. Nos.
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
(By: Moon, C.J., for the court)
Petitioners Keep the North Shore Country and sierra Club,
Hawai'i Chapter’s application for writ of certiorari, tiled
September 8, 2009, is accepted and will be scheduled for oral
argument, The parties will be notified by the appellate clerk
regarding scheduling
DATED: Honolulu, Hawai'i, October 13, 2009.
FOR THE COURT
Et gusticgf
No. 28602 Unite Here! v, City and County of Honolulu -- order
‘Accepting Application for Writ of Certiorari
* Considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ; and
circuit Judge Chan, in place of Recktenwald, J., recused:
|
f541e822-6d94-4830-8010-e07b97121cde | Hawaii Medical Service Association v. Adams | hawaii | Hawaii Supreme Court |
UBRARY
wo, 28899
IN THE SUPREME COURT OF THE STATE OF KAWAI‘!
HAWAII MEDICAL SERVICE ASSOCIATION,
Respondent Appellant Appellant,
PATRICIA £.G. ADAMS, IN HER CAPACITY AS 3)”
PERSONAL REPRESENTATIVE OF THE ESTATE OF BRENT ADAMS;
Pet itioner-Appellee-Appel lee,
Oost Ks £2 100 40le
and
‘THE INSURANCE COMMISSIONER and the DIVISION OF INSURANCE OF THE
DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS; STATE OF HAWAI'I,
‘Appellees-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(crv. No. 071-0918)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Nakayama, J., for the court’)
Petitioner/Appellee-Appellee’s application for writ of
certiorari filed on September 8, 2009, is hereby rejected.
DATED: Honolulu, Hawai‘, October 23, 2009.
FOR THE COURT:
Recs Co rey anor
Associate Justice
‘considered by! Moon, C.J., Wakayama, Acoba, and Duffy,
Bey and
circuit Juage Chang, in place of Recktenwald, J, ‘recused,
oat
|
75155ae8-d8f5-4dab-a209-be6cc4f759e1 | State v. Mainaaupo. Concurring and Dissenting Opinion by J. Acoba [pdf]. ICA mem.op., filed 08/31/2007 [pdf]. Dissenting Opinion by J. Nakamura [pdf]. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/18/2008 [pdf]. Consolidated with No. 27969. S.Ct. Order of Amendment, filed 04/04/2008 [pdf]. | hawaii | Hawaii Supreme Court | 414 FOR PUBLICATION IN MEST’S HAWAI'I REPORTER AND PACIFIC REPORTER
LAW LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000 —
No. 27764
STATE OF HAWAI'I, Plaintiff-Appellee-Respondent
WILLTAM MAINAAUPO, JR., Defendant~Appellant-Petitioner.
(CR. NO. 05-1-1213)
No. 27969
STATE OF HAWAI'I, Plaintiff-Appellee-Respondeffé, x
MARK K, LOPEZ, Defendant-Appellant-Petitioné¢!
(eR. NO, 05-1-1244)
3
5
Ld §
Nos. 27764 & 27969,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(cre
MARCH 5, 2008
NAKAYAMA, AND DUFFY,
Nos, 05-1-1213 & 05-1-1244)
33.
MOON, C.J., LEVINSON,
AND ACOBA, J., CONCURRING AND DISSENTING SEPARATELY
OPINION OF THE COURT BY LEVINSON, J.
on December 7, 2007,
the defendant-appellant-petitioner
Mark K. Lopez filed an application for a writ of certiorari,
urging us to review the memorandum opinion (mem. op.) of the
Intermediate Court of Appeals (ICA) in State v. Lopez, No. 27969
[hereinafter, “ICA's Lopez mem. op,
+ and,
on Decenber 11, 2007,
oad
‘10+ FOR PUBLICATION I WEST’ S HAWAI'T REPORTER AND PACIFIC REPORTER *#*
the defendant-appellant-petitioner William Mainaaupo, Jr., filed
an application for a writ of certiorari, asking us to review the
ICA's memorandum opinion in State v. Maingaupo, No. 27764
{hereinaftez, “ICA's Mainaaupo mem. op.”]. Although these cases
are factually unrelated, they share a common legal question:
Wether the ICA erred in concluding that the circuit court of the
first circuit? correctly declined to instruct the jury on the
mistake-of-fact defense, as provided by Hawai'i Revised Statutes
(HRS) § 702-218 (1993),? in relation to charges of the offense of
unauthorized control of @ propelled vehicle, in violation of HRS
§ 708-836 (Supp. 2001),? where the defendant clains a mistaken
belief that the person who authorized his use of the vehicle was
the registered owner of the vehicle. Beyond this shared issue,
Mainaaupo argues that the ICA gravely erred in concluding that
£ the Honorable Karl K. Sakancto presided in Lanz, and the Honorable
victoria Les Crandall presides in Mainaaups,
% uns § 702-238, entitied “Ignorance or mistake as 4 defense,” provides in
relevant part: “In'any prosecution for an offense, it is 2 defense that the
Sccused engaged in the pronibsted conduct under ignorance or mistake of fact
TES) “the Ignorance Or sistake negatives the state of mind required to
Gstablign an element of the offense... .” (Formatting altered.)
3 as § 708-836, entitled “Unauthorized control of propelled vehicle,”
provides as follows!
(2) A person commits the offense of unauthorized control of a
propelled vehicle 1f the person intentionally or knowingly exerts
Unauthorszed control over another’ s propelled vehicle by operating
the vehicle without the owners consent. - =
igi "Ht de an aftismative defense to 2 proses
this section that the defencant
a) Received authorization to use the vehicle from an
agent of the owner where the agent had actual or
Spparent authority to authorize such use.
(4)" For the purposes of this section, “owner” means the
registered owner of the propelled vehicle or the unrecorded owner
of the vehicle pending transfer of ownership -
2
{FOR PUBLICATION IN WEST'S HAWAI'T REFORTER AND PACIFIC REPORTER ***
the circuit court correctly instructed the jury that, under HRS
$ 708-836, the defendant has a legal duty to obtain consent to
operate the vehicle directly from the registered owner of the
vehicle. And Lopez contends that the ICA gravely erred in
concluding that the remarks during closing argument by the
plaintiff-appellee-respondent State of Hawai'i (hereinafter, “the
prosecution"] regarding Lope2’s post-arrest silence and his
failure to produce a critical defense witness to corroborate his
testinony were legitimate conment on the evidence and not
misconduct. We accepted Lepez’s and Mainaaupo’'s applications on
January 18, 2008 and consolidated the cases for disposition the
same day.
For the reasons discussed herein, we hold (1) that the
circuit court erred in declining to give Lopez's and Mainaaupo’ s
mistake-of-fact jury instructions, (2) that the circuit court
erred in instructing the jury that Mainaaupo had a legal duty to
obtain consent to operate the vehicle directly from the
registered owner of the vehicle, (3) that the prosecution’ s
comments regarding Lopez's post~arrest silence were improper, and
(4) that the prosecution's comments regarding Lopez’s failure to
produce a critical defense witness were not improper.
Accordingly, we vacate the judgments against Lopez and Mainaaupo
and remand their cases for new trials.
‘s+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +
T. BACKGROUND
A. Backaround In Lopez
1. Factual backaround
In May and June 2005, Gregory S. Gittens and Mona S.
Gittens were the registered owners of an automobile, a 1995 Honda
Accord, and their son, Brian Harris, was the primary driver.
Gregory and Harris each had a set of keys to the car, neither of
which was ever lost. Aside from some damage to the front of the
car, the car was in “pretty good” condition; its door locks and
steering column were not damaged, and an after-market sound
system, the initial cost of which was between $300.00 and
$400.00, was installed in it.
At around 5:00 p.m. on May 31, 2005, Harris drove the
car to his workplace at Bandito’s Cantina in the Pearlridge
Center, located in the City and County of Honolulu, parked the
car in the mall's parking lot, locked the doors, and went to
work. He left some clothes, his wallet, and over one hundred
compact discs in the car. Harris finished work at about 9:00
p.m. only to discover that the car was gone. He contacted
security guards and the police, reporting that the car had been
stolen.
Shortly after midnight, at approximately 12:45 a.m. on
June 8, 2008, Honolulu Police Department (HPD) Officer Edward
Hawkins was in a police cruiser at Mai'anae Mall, employing a
laser device to identity and stop drivers speeding on Farrington
Highway. Using the laser device, he observed a car traveling
sixty miles an hour in a thirty-five mile-per-hour zone. officer
YOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER *
Hawkins pursued the car and activated his cruiser’s blue lights
and siren, and the car pulled over immediately. Officer Hawkins
exited the cruiser and approached the car to find Lopez behind
the wheel. Lopez provided his Washington State driver's license
but was unable to produce either the vehicle’s registration
certificate or any proof of insurance. Lopez stated that the car
belonged to a friend and that he did not know where the paperwork
was located.
officer Hawkins instructed Lopez to turn off the
vehicle's ignition and, in response, Lopez retrieved what
appeared to be a house key from his pocket, put his hands
underneath a towel on the steering column for fifteen to twenty
seconds, and turned off the ignition. Deeming the towel
suspicious, Officer Hawkins called dispatch, ran a check on the
vehicle's license plate number, and was informed by dispatch that
the car was stolen. The officer ordered Lopez out of the car,
handcuffed him, and placed him under arrest for driving a stolen
vehicle. The record does not reflect whether Officer Hawkins, or
any other police officer, administered warnings pursuant to
Mixanda v. Arizona, 384 U.S. 436 (1966), during or after the
arrest. Officer Hawkins processed the car, removing the towel
and observing that all of the plastic around the steering column
was gone, such that he could see its internal mechanisms. HPD
officer Kepi Visoria, who assisted in processing the car, noticed
that the ignition was broken and dangling and that the door locks
had been “punched,” which means that the locks had been shoved in
‘t+ FOR PUBLICATION 8 MEST’ HAWAI'I REPORTER AND PACIFIC REPORTER ++
with a blunt object, such as a screwdriver, in order to open the
doors.
‘The police returned the car to Harris, whereupon he
noticed that, in addition to the other damage, the compact discs,
the sound system, and Harris's wallet were missing, and a door
window was “flexed,” which is a method by which @ person breaks
into a car by flexing a window so that he can place his hand
through the window and open the door, Harris never gave Lopez,
or anyone else, permission to drive the car at any time, and
Gregory and Mona, the vehicle’s owners, likewise never authorized
Lopez, oF anyone other than Harris, to drive the car.
2. Proceedings in the circuit court
2. Charging
On June 17, 2005, Lopez was charged by complaint with
intentionally or knowingly exerting unauthorized control over a
propelled vehicle, by operating the vehicle without the consent
the owners of the vehicle, thereby
of Gregory and/or Mona,
committing the offense of unauthorized control of a propelle
vehicle, in violation of HRS § 708-836, see supra note 3.
b. Trial
At the February 1, 2006 trial, the prosecution called
Harris, Gregory, Mona, and Officers Hawkins and Visoria as
witnesses during its case-in-chief. On cross-examination by
Lopez, Officer Hawkins affirmed that, when he stopped Lopez for
speeding, Lopez was calm and cooperative and that, when he asked
for Lopez's license, registration, and insurance, Lopez told him
that “the car belongs to a friend and he doesn’t know where the
‘++ ZOR PUBLICATION IN WEST'S EAA REPORTER AND PACIFIC REPORTER +++
paperwork is.” On redizect examination by the prosecution, the
officer testified that Lopez did not volunteer his friend’s nane
or address or the means by which he acquired control of the car
from his friend. The deputy prosecuting attorney (DPA) asked,
“pid he say anything at all about this friend except (*]well, 1
got it from a friend, I don’t know where the paperwork is("]?,
to which Officer Hawkins responded, “That's all he said.” on
recross-examination, the officer admitted that he could not
recall whether he had asked Lopez for his friend’s name and other
pertinent information.
After the prosecution rested, Lopez testified on direct
examination that he had grown up in Hawai'i and, in June 2005, he
had returned to the islands from Seattle to visit friends and
family for a couple of weeks. He acquired the Honda fron a
friend, Greg Ramba, an automotive mechanic who he had known for
approximately two years. lWhen Lopez arrived at Ramba’s house, he
noticed four or five cars parked in the driveway. Ramba offered
to let Lopez use one during his two-week stay. Lopez observed
that the car’s exterior was damaged in the front, that its
interior was very dirty and filled with rubbish, that its
steering column was missing and covered by a towel, and that its
ignition was broken, but he did not notice that the door locks
were punched in. Lopez believed that the car was abandoned but
did not find its poor condition suspicious because Ramba was
simply a “broke mechanic." Ramba gave Lopez a key to the car.
Lopez testified that he did not know that the car was stolen
until he was pulled over by Officer Hawkins.
‘46+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +++
On cross-examination, Lopez admitted that he had
neither seen nor asked to see any paperwork for the car and that
the car key he received from Ranba was not the actual key to the
car, because it looked like a house key. When questioned about
Ramba, Lopez claimed that Ramba was twenty-six years old,
unmarried, law abiding and honest and that he lived with his
parents in Makakilo. Lopez could not, however, remember Ranba’s
precise address. Lopez maintained that he believed that the car
belonged to Ramba or Ramba’s family, because the car was in
Ramba’s driveway and because he had observed Ramba’s family
members driving the car. Lopez used the car for two days before
he was arrested.
c. gy euction:
Lopez requested that the circuit court instruct the
jury on the mistake-of-fact defense, as set forth in HRS
§ 702-218(1), see supra note 2, as follows:
in any prosecution for an of1 ete
defense that the Defensant engaged in the prohibited
Gonduct under ignorance oF mistake of fact if the
Ggnorance or aistate negates the state of mind
required to establish an elenent of the offense.
‘Thus, for example, & person is provided s
defense toa charge based on an intentional or knowing
‘State of mind, if the person is mistaken (either
Feasonably, negligently, or recklessly) as to 2 fact
that negates the person's state of mind required ts
eotablish an element of the offense.
‘The burden is upon the prosecation to prove
beyond a reasonable doubt that the Defendant was not
Sonorant cr mistaken as to 2 fact chat negates the
afave of mind required to establish an elenent of the
offense. “If the prosecution fails to meet its burden,
Then you must find the Defendant not guilty.
‘This instruction tracks Hawai'i Jury Instruction Criminal
(HAWIIC) No. 7.13, available at
‘+6 FOR PUBLICATION IN WES!
AMAT REPORTER AND PACIFIC REPORTER ***
http://www.courts, state. hi.us/attachment /S06FD371721EBBCBEC4445E5
3c/erimjuryinstruct.pdf (last visited Dec. 28, 2007). The
circuit court declined to give the instruction, citing State v.
Palisbo, 93 Hawai'i 344, 3 P.3d 510 (App. 2000), and reasoning
that there was “no evidence showing that [an] actual registered
owner, either [Gregory or Mona], or an agent thereof, [Harris],
gave permission to [Lopez;] in fact, that (possibility) was
specifically rejected by the defense [and by Lopez's] testimony,
and, therefore, that instruction is not supported by the
evidence.”
‘The prosecution asked the circuit court give the
following instructions in light of Balisbo:
[THE PROSECUTION’ S] INSTRUCTION NO. 3
te is not a defense to the offense of
Unauthorized Control of Propelied Venicle that the
Defendant nay nave receives permission to operate the
Veniele from another person, unless that person was
tither the vehicle's regieteres onner cr the agent of
the registered owner with either actual oF apparent,
authority to authorize such use.
(Formatting altered.) The prosecution argued that the circuit
court should give its instruction because, under Balisbo, the
prosecution is only required to prove knowing operation of the
automobile without the consent of the registered owners and that,
although the defendant may have been mistaken in his belief that
the person who authorized his use of the vehicle was the
vehicle’s true owner, he is nevertheless subject to criminal
Liability. According to the prosecution, Balisbo “turns [the
authorization} element into an element of strict liability.” The
circuit court declined to give the prosecution's instruction,
because it was confusing and not required under Balisbo.
FOR PUBLICATION 1 WEST'S HAMAI'T REPORTER AND PACIFIC REPORTER
4. Closing and rebuttal arqunent
During closing argument, the DPA, over the objections
of the deputy public defender (hereinafter, “defense counsel” or
“DPD”, commented on Lopez’s post-arrest silence:
[oeA:] Again, consult your own reason and common sense, you
Sone ip with a story, you know, shat you think might
work. ("JOn, T-cannot find se{;] e's my friena’s
Gar.1") Yeah, be does say that. Okay. Does he say
Gnything mere? Bear in sind within alnutes he's out
Of that car in caffe being arrested for driving that
Stolen car(,] right? Did he say anything more? The
Gop tela you he didn't say what his triend”'s nane was,
Sisn't say the address or dicn’t say anything about
the details, dign't say nothing.
‘Again, you consult your om reason and common
sense about how people normaly act. A person is
Stopped in a stolen car and ne really is innozent,
What's the first thing he's going to do? ("]ey, wait
2 'minute, wait = minute =-[")
(oro}: Your Hone, I'm sorry, I'm going to cbject (,)
Conmenting on the defendant's right £0 renain ailent.
(oe]:, Tete in evidence, Your Honor.
(eourt): Overeuled, You may continue.
(Deal: (i]Wait a minute, wait a minute, 1 got it from ay
friend Greg Ranba, he lives in takakslo, he fixes
cars; he told me f could drive it, wait, wait,
wait.("] Again, think, you're ali adults here, you
now how people react to things. that's what an
innocent person would do(s] he didn’t do anything Like
that. He got cuffed, he got arrested, he got taken
away. Way? Because he got caught red-handed ang ne
knew ie. That's why.
Defense counsel responded in his closing argument:
00}
<_« . [hopes] was telling you the truth, he was
felting you the truth.
"You know, . .« (Lopez's) actions on . . . the
fed Rater, too...
sn't know there’ anything wrong with the
Sar, you know. Ke does tell the police it's his
friend's car. And, you know, the officer
hinself saysl, “well, T can't remember if 7
asked hin anything more about the friend. ("]
So, you know, (ehe DPA] ts raking a big deal
about [Leper] not sayingl, "Mly friend is this,
he Lives there, he lives there,(*] We don’t
Know if he did or he dian’t(;] the officer
himself doesn’t know. (Lopez's) actions on that
Gay aatver
10
‘++ FOR PUBLICATION IN WEST’ HAWA'T REPORTER AND PACIFIC REPORTER
on rebuttal, the DPA replies
toe}
Well, the officer didn't ask hin, that’s why he didn't
say anything about the friend’s name, where he could
be" soung, the details of the car, et cetera, Again,
‘Sse your common sense. The (prosecution’ s] position
{a that the officer wouldn't need to a9k(i] on
innocent person would just start talking and try to
Eonvince the person arresting him that he didn’t do it
Gna nere’s why. I'mean, don’t yeu think [that the
Hire thing] 2 reasonable person would have said [is].
[hil got it from my friend, Greg Ramba, brah, go
faik'to him, he'll tell youl]? Nothing like that.
In addition, during closing argument, the OPA, over
defense counsel's objections, commented on Lopez's failure to
call Ramba during trial:
(DPA:}__What_the defense is going to argue is ne didn’t know,
he didn't reslly know because he didn’t know the car
Mas stolen and he thought his friend Greg gave hin
Dezrission to drive tne car. Okay, So iets 100%
ore closely at that because that’s really sort of the
Rub of this case. ALL right?
First of sil, bear in mind trials are all sbout
evigence, yesh, evidence. What's the evidence for
Shat? [Lopez's] testimony. That’s it, that's all you
10RD) ‘Objection, Your Honor, burden shifting.
{Court}: Overruled,
[bpa}:| | All you have on this, his testimony that he borrowed
fhe Gar, that he disn't know it wag stolen, et cetera.
There's’ not one single bit of correboration for what
he told you in this case, not a single bit.
10RD}: ‘Same objection, Your Honors
[court]: Overrules!
During rebuttal argument, the DPA, again over defense counsel's
objections, returned to the same theme:
(ora And, by the way, this Greg Ranba ~~ now it's erue, you
Tow, the defense doesn’t have s burden, he dian’
have to eeutify, he doesn’t have to cali witnesses.
Bat ne nas 2 2ignt to do so and he can put on any
evidence he wants. Ar I said, the evidence for his
Story ic just that, his story: Zero corroboratien.
Wouldn't you have Liked to have heard fron Greg?
1peo}: Gbjectiony Your Honor, again burden shifeing.
[Coure): Oversulea!
[DPA]! Wouldn't you have Liked to have heard from Greg Ranbe?
He says he’s 2 local boy, lives [in] Makakile with his
family. Yow know, would Lt have been go hard to get
Aim. |. ince court te tell you guysl, “Y]eah I lent
a
'+ FOR PUBLICATION IN WEST'S HAWAI'T REFORTER AND PACIFIC REPORTER +
him the car, 1 told him ét was okay, and I neva know
it was stolen either("}? He hinselt said Greg is law
abiging, honest, nis friend. "You knox, don't you
think his friend would come in? And ai] ne would nave
to say is(, "Yeah, I lene him the car-[*]” I would
probably vote not guilty maybe at chat point.("]
Why didn't ne do that? T suggest to you one of
two possibilities: There is no Greg Ranbs ar Grea
Ranba would have cone in here if he called him and
Sala sonething very different from what he would nave
wanted Greg to say
(oro) Objection, Your Honor, that calls for speculation.
[Court]: Overrulea
e. dudament and notice of appeal
‘The jury found Lopez guilty of the charged offense of
unauthorized control of a propelled vehicle. The circuit court
sentenced Lopez to an indeterminate five-year term of
imprisonment, subject to a mandatory minimum term of five years
as a repeat offender, entering its judgnent of conviction and
sentence on May 9, 2006. Lopez filed a timely notice of appeal
on June &, 2006.
3. Appellate proceedinas
In his opening brief, Lopez argued that the circuit
court erred by refusing to give his proposed instruction on the
mistake-of-fact defense and by overruling his objections to the
prosecution's remarks regarding his failure to call Ramba at
trial and his post-arrest silence. Relying on Palisbo and the
legislative history underlying HRS § 708-636, the ICA concluded
that the circuit court correctly declined to give the mistake-of-
{ _ sprosecutors are. bound to refrain from expressing their personal
views a5 to the defendant's quiit "State v. Marah, 68 Haw, 659,
660-61, 728 P.2d 1301, 1502 (1886) (holding that the prosecutor improperly
expressed nis personal opinion chat the defendant was guilty, asserting, “I’m
Sure she coanitted the crine”|; see also state v, Valdivia, 99 Hawai's 465,
S54, 24-e.34 661, 680 (2001). Secauge Lopes does not argue that the OF%
imptoperly gave his personal opinion by commenting cn how he would have voted
Unser the cizcunstanses, the issue need not be addressed here.
12
[FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER ***
fact instruction, because “the only factual mistake that would
absolve Lopez of liability for the offense charged would be a
mistaken belief that the registered owners of the vehicle, the
Gittens[es}, had authorized Lopez's use of the Honda” and Lopez
made no such claim. ICA's Lopez mem. op. at 7. The ICA also
concluded that the prosecution's closing argument legitimately
commented on the evidence and drew reasonable inferences
therefrom. Id. at 10.
‘The ICA entered its judgment on appeal on September 10,
2007, and Lopez filed his timely application on December 7, 2007.
Backaround In Meinaaupo
1. Bactual backaround
In June 2005, Nancy Cordova was the registered owner of
2 1991 Nissan Maxima four-door sedan. On the night of June 4,
2005, at approximately 8:00 p.m., Cordova and her boyfriend,
Brian Cornel, parked the car at Pupukea Beach Park, located on
the Worth Shore of O'ahu, locked the car, and went scuba diving
at shark's Cove. When they returned to the parking lot at around
9:00 pam, the car was gone, so they called the police.
Two days later, in the Wai'anae area of O'ahu, Cornel
observed Mainaaupo driving what appeared to be Cordova’s caz, so
he followed Mainaaupo to a nearby store, whereupon Nainaaupo
exited the car, locked the door with a shortened, three-quarters-
of-an-inch-long key, and entered the store. Cornel called the
police and, when HPD Officer George Martin arrived, informed the
officer that Mainaaupo was in the store. Officer Martin entered
the store and arrested Mainaaupo for unauthorized control of a
3
‘446 FOR PUBLICATION It WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER *#*
propelled vehicle. Officer Martin determined that Mainaaupo’s
key, which was not a standard vehicle ignition key, could start
the car because, in some vehicles that are over ten years old --
Like Cordova’s 1991 Nissan -- the ignition tends to become worn
out, so that any key will start the vehicles.
‘The car was in about the same condition as when Cordova
had last seen it on June 4, 2005: no items were missing, and the
locks, doors, and ignition remained undamaged. Cordova did,
however, discover that 2 few of the couple’s personal items -- an
underwater camera case, towels, clothes, footwear, a purse, a
wallet, and a backpack -- had been taken from the seating area
and placed in the trunk. Cordova did not at any time give
Mainaaupo, or anyone other than Cornel, authority to drive the
car, and Cornel did not at any time give Mainaaupo, or anyone
else, permission to drive the car either.
2. Proceedings in the circuit court
a. Charging
On June 14, 2005, Mainaaupo was charged by complaint
with intentionally or knowingly exerting unauthorized control
over a propelled vehicle by operating the vehicle without the
consent of Cordova, the owner of the vehicle, thereby committing
the offense of unauthorized control of a propelled vehicle, in
violation of HRS § 708-836, see supra note 3.
b. Trkal
In the course of its case-in-chief, the prosecution
called Cordova, Cornel, and Officer Martin. After the
prosecution rested, Mainaaupo testified that, on June 3, 2005, he
4
‘104 FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER ***
was a passenger on a bus traveling toward his brother's house in
Wai'anae, when he noticed his friend “Doug,” a fellow passenger,
whom he had known for three to six months. Although he claimed
to have previously socialized with Doug at Shark’s Cove,
Mainaaupo could not recall Doug’s last name. Because Mainaaupo
believed that Doug owned a car, he asked him why he was catching
the bus, to which Doug responded by handing Mainaaupo a long,
silver key from his pocket. Mainaaupo asked what the key was
for, and Doug said, “(Flor my car{z] I don’t need it{.] 1 [am]
joining the militaryl[,] and 1/11 be back in three months.”
Mainaaupo testified that he believed that the key belonged to
Doug and that the key would start Doug's car.
Mainaaupo also testified that, on June 4, 2005, he
called Doug, who told him that the car was located at Shark’s
Cove but did not disclose its make, model, or color. At around
5:00 p.m., Mainaaupo traveled to Shark’s Cove, where he observed
a number of cars in the parking lot, such that he could not
determine which car belonged to Doug. Consequently, Mainaaupo
waited by the bathroom and, at around 7:30 p.m., he returned to
the parking lot to see only one car, Cordova’s car, remaining.
Mainaaupo successfully unlocked the car’s doors with the key and,
accordingly, concluded that the car belonged to Doug and that he
had Doug’s permission to use the car. He drove the car to his
brother's house
Mainaaupo further asserted that, at around noon on June
6, 2005, he was driving to the store where he was later arrested,
when he heard a cellular phone ringing in the back seat. He
45
‘++ FOR PUBLICATION IN WEST'S HARAI'I REPORTER AND PACIFIC REPORTER ++
noticed other itens in the back seat, so he placed all of them in
the trunk of the vehicle for safekeeping until Doug returned.
c. Jury instructions
Nainaaupo requested that the circuit court give the
following mistake-of-fact instruction, which tracks the language
of HANJIC No. 7.13:
Th any prosecution foF an offen:
Sefense that
Conduct unde!
Sgnorance oF
required to
‘Thus, for example, & person is provided 3
defence to'a charge besed on a intentional of knowing
State of mind, if the person is mistaken either
Feasonably, negligently, or recklessly, as too fact
that negates the person's state of mind required to
establish an clement of the offense? however, 9
Teckless mistaxe would not afford s defense to a
charge based on # reckless state of mind.
‘The Burden 19 upon the prosecution to prove
beyond a reasonable doubt that the defendant. was not
Sgnorant or mistaken es toa fact that negstes the
state of mind required to establish an element of the
offense. “Tf the prosecution fails to meet its burden,
then you must find the defendant not guilty
Mainaaupo attempted to distinguish Palisbe, arguing that that
decision did not, in fact, hold a defendant strictly liable under
the authorization element of HRS § 708-836. The circuit court
declined to give the instruction, citing Palisbo.
For its part, the prosecution requested that the
circuit court give the following instruction, relying on Palisbo:
“[PROSECUTION’S} INSTRUCTION NO. 7[:] Under the law relating to
the offense of ‘unauthorized control of propelled vehiclel,]/[] @
non-owner driver of a vehicle has a legal duty to obtain consent
to operate the vehicle directly from the registered owner of the
16
‘t++ POR PUBLICATION IN WEST'S HAMAr'T REPORTER AND PACIFIC REPORTER *#+
vehicle.” (Formatting altered.) The circuit court gave this
instruction over Nainaaupo’s objection.
4. Judament and notice of appea!
‘The jury found Mainaaupo guilty as charged, and the
circuit court sentenced him to a five-year term of probation.
‘The cireuit court entered its judgment on January 18, 2006, and
Mainaaupo filed his timely notice of appeal on February 15, 2006.
3. Appellate proceedings
In his opening brief, Mainaaupo argued that the circuit
court erred in declining to give his mistake-of-fact jury
instruction and by giving Prosecution’s Proposed Instruction
No. 7. The ICA disagreed, relying, as it did in Lopez, primarily
on Palisbo and the legislative history underlying HRS § 708-836.
‘The ICA expressly concluded that the circuit court did not err in
declining to give the mistake-of-fact instruction and implicitly
concluded that the circuit court was not remiss in giving
Prosecution’s Proposed Instruction No. 7. ICA’s Mainaaupo men.
op. at 6-8. Accordingly, the ICA affirmed Mainaaupo’s conviction
and probationary sentence. Id. at 8.
Associate Judge Craig H. Nakamura dissented
(hereinafter, “Nakamura dissent”], reasoning that, although the
circuit court's instructions were correct under Palisbo, he
disagreed with the holding in Palisbo because he believed that
the mistake-of-fact defense yas available to defendants to refute
the authorization element of HRS § 708-836. Nakamura dissent
at 1. Judge Nakamura relied on the plain language of the
statute, reasoning that:
uv
‘t+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER *4*
The statute requires that the defendant “intentionally
OF knowingly exert (ed) unauthorized control” over
Soneone else's venicie. ia ny view, 2 defendant
Cannot intentionally of knowingly exert “unauthorized”
control unless the defendant atended or knew that Ale
of her use of a Vehicle was without the owner's
Sonsent: Thus, I believe that under the most natural
and comnon reading of the statutory language, pros!
that the defendant knew that his of her use of the
vehicle was without the owier's consent is required
Ida at 5 (brackets in original). In Judge Nakamura’s view, HRS
§ 702-207 (1993)* “provides guidance on how to apply the mental
state specified in an offense to its elements” and “creates a
presumption that the ‘intentionally or knowingly’ mental state
specified in HRS § 708-836 applies to both the requirement that
the defendant exerted control over ancther’s vehicle and the
requirement that the defendant engaged in such act without the
consent of the owner.” Nakamura dissent at $-6. Judge Nakamura
also noted that the statute’s legislative history is
contradictory, particularly in light of committee reports related
to the 1999 amendments to the statute, and, therefore, argued
that the legislative history did not establish that the
legislature intended to foreclose the mistake-of-fact defense
with respect to defendants charged with a violation of HRS
§ 708-836. Id, at 6-12. Judge Nakamura also concluded that the
circuit court undermined Mainaaupo’s mistake-of-fact defense by
giving Prosecution’s Proposed Instruction No. 7. Id, at 14.
® ups § 702-207, entitied "specified state of mind applies to all
elements,” provides’ that “[w]hen the definition of an offense specifies the
State of sind sufficient for the comission of that offense, without
Sistinguishing anong the elenente thereof, the specifies state of mind shall
Spply fo all elements of the offense, unless contrary purpose plainly
‘Sppears.”
18
‘10+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER +++
The ICA’s judgment, entered on September 13, 2007,
vacated the circuit court’s judgment and remanded the case for a
new trial. Because this disposition was inconsistent with its
memorandum opinion, see ICA's Mainaaupo men. op. at 8, the ICA
entered an amended judgment on October 8, 2007, which affirmed
the circuit court’s judgment. Mainaaupo filed his application on
December 11, 2007.*
In Mainaaupo’s application, the Office of the Public Defender re
that this court clarify whether the ninety-day time perio, under Hawas
Rules of Appellate Procedure (HRAP) Rule 40.1(a), for filing an application
for'a writ of cortiorari in this court began to run anew wen the ICA filed
its anonded judgnent. Although this point is moot, insofar as Mainaaupo filed
his application within 90 days of the ICA's original Jedgment, and the
timeliness of nis application is thus not in question, we foreeee that this
issue will probably arise in the future and, therefore, address st here
Under SRAP Rule 40,1, "whore a judgnest is anended in a material and
substantial respect, the tine within which an appeal from such determination
nay be taten begins to run from the date of the amenduent, although where the
auendaent relates only to correction of a clerical error, it does not affect
the tine allowed for appeal.’* Korgak vy dawail Permanente Med. Group, 94
Hawai'i 297, 304, 12 P.sd 1238, izes (2000) (quoting interstate Pristine Co,
459 N.M24 $19, 523 (Med. 1990)) (eltipses omitted)
(interpreting the tine period to £116 an application for certiorari under the
former version of MRAP Rule 40.1 and holding that the tine period conmences
from the ICA's original order denying s motion for reconsideration, because
the anended order denying reconsideration only corrected clerical errors). In
this casey the ICA’s anendeent did not simply eliminate clerical errors but,
rather, changed the fundanental disposition of this matter from a "vacste and
Fenand* to an affirmance. The anendnent, although by no means surprising
Given the ICh's menorandum opinion affirming the circult court's judgment, was
both material and substantive and, accordingly, we believe that Mainaaupo’«
Eine period within Which to file his application Began to run anew when the
TA filed its amended Judgsent.
19
‘4+ FOR PUBLICATION IN WEST’ § HAWAI'I REPORTER AND PACIFIC REPORTER #*#
II, STANDARDS OF REVIEW
AL Certiorart
‘The acceptance or rejection of an application for a
writ of certiorari is discretionary, HRS § 602-59(a) (Supp.
2007). In deciding whether to accept the application, this court
considers whether the ICA's decision reflects “(1) [g]rave errors
of law or of fact] or (2) [o]bvious inconsistencies . . . with
[decisions] of this] court, federal decisions, or [the ICA's}
own decision(s]” and whether “the magnitude of those errors or
inconsistencies dictat(es] the need for further appeal.” Id.
$ 602-59(b).
8. dury Instructions
“the standard of review for a trial court's
issuance of refusal of a jury instruction is whether,
lien read and considered as a whole, the instructions
Given are prejudicially insufficient, erroneous,
Inconsistent, or misleading.” gtaue'v, Balanza, 93
Wawai'i 279, 283, 1 Pi3d 261, 265 (2000) {quotation
fad internal quotation marks omitted). *[E]reoneous
instructions are presumptively haraful and are a
Ground for reverssi unless it affirmatively appears
fron the record as a whole thet the error wae not
prejudicial.” stave vs Sia, 32 Hawal't 61, 69, 967
24959, 967 (1999) (quoting Stats v. Pinero, 70 Haw
509, $27; 778 P.2a 104, 716 (29891 {quotation
onitted)} (brackets in’ original). In other words,
lelzror is not to be viewed in isolation and
considered purely in the abstract. rt must be
Sxamined in the Light of the entire proceedings
Gnd given the effect which the whole record
Showa It to be entitled. In that context, the
Zeal question becones wbether there i= 2
Feasonable possibiiiey that error may have
Contributed co conviction.
de (quoting State vs Keard, 64 Haw. 193, 194, 638
Beda 307, 308 (1961) (citations omictes) |.
20
‘tee FOR PUBLICATION IN MEST’ HAMAI'T REPORTER AND PACIFIC REPORTER
State vy. Van Dyke, 101 Hawai'i 377, 383, 69 P.3d 88, 94 (2003)
(quoting State v. Aganon, 97 Hawai'i 299, 302, 36 P.3d 1269, 1272
(2001).
Statut:
wo [The interpretation of a statute is a
question, of law reviewsble de nove."
Be nauai's i, 10, 928 P24 603, 882 (19961 | Tauoein
Gravv. Adela. dir of the coure, 8¢ Hawai 13s, 1
531 F.2d 560, S86 (1997) [)] (sone brackets added and
sone in original) Furthermore, our statutory
Construction 4s guided by established rules:
hen construing 2 statute, our foremost
obligation 1a to ascertain and give effect to
the intestion of the legislature, which is te be
Obtained primarily from the language contained
in the statute itself. And we mse read
statutory Language in the context of the entire
with its purpese.
Seay, 84 awas"t at 148, 932 P.24 at 590 (quoting
Seats ¥. Tevomsra, 60 await 8, 18-19, 904 P.24'893,
503-04 {1995)) =. (footnote omitted).
Van Duke, 101 Hawai'i at 383-84, 69 P.3¢ at 94-95 (quoting State
va -Rauch, 94 Hawai'i 315, 322-23, 13 P.3d 324, 331-32 (2000))
(some ellipses added and some omitted) (brackets omitted)
(formatting altered).
[Albsent an absurd or unjust result, gee State,
106 Hawai'i 71, 77, 85 2.30 178, 18 (2004),
this court is bound to give eftect to the plain
eaning of Gnaniguovs statutory language and may only
Fesort to the use of legislative history when
interpreting an smbigueas statute... - Valdivia, 95
Mawai't at) 472, 24 P.3d (at) 666
‘Thompson v, Kvo-Ya Cou, 112 Hawai'i 472, 475, 146 P.3d 1049, 1052
(2006); accord Courbat v, Dahana Ranch, Inc., 111 Hawai'i 254,
261, 141 P.3d 427, 434 (2006); see also State v. Kupihea, 98
Hawai'i 196, 206, 46 P.3d 498, SOB (2002) ("*[W]e do not resort
to legislative history to cloud a statutory text that is clear.'”
21
‘s+ FOR PUBLICATION IN WEST'S HANAI'T REPORTER AND PACIFIC REPORTER ++
(Quoting State v. Kalama, 94 Hawai'i 60, 64, @ P.3d 1224, 1228
(2000) .)).
D. Prosecutorial Misconduct
“Allegations of prosecutorial misconduct are reviewed
under the harmless beyond a reasonable doubt standard, which
requires an examination of the record and a determination of
whether there is a reasonable possibility that the error
complained of might have contributed to the conviction.” State
veIuli, 101 Hawai'i 196, 204, 65 P.3d 143, 151 (2003).
“Misconduct of a prosecutor may provide grounds for a new trial
Af the prosecutors actions denied the defendant a fair trial.”
Id
III. prscussion
A. The ICA Erred In Concluding That The Circuit Court
Correctiv Instructed The Jury On The : =of=
Defense in Lopez And Mainaaupo.
Lopez and Mainaaupo argue that the circuit court erred
by declining to give their respective HRS § 702-218 mistake-of-
fact instructions because each claimed a mistaken belief that the
person who consented to his use of the vehicle was the registered
owner of the vehicle. Mainaaupo also argues that the circuit
court erred by giving prosecution's Jury Instruction No. 7 to the
effect that, pursuant to HRS § 708-836, a defendant is subject to
a legal duty te obtain consent to operate a vehicle directly from
the registered owner of the vehicle. The prosecution argues, and
the ICA agreed, that Palisho and the legislative history
underlying HRS § 708-836 dictate that the mistake-of-fact defense
22
‘s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER +++
was not available to either Lopez or Mainaaupo.’ See ICA's Loven
men. op. at 5-8; ICA’s Mainaaupo mem. op. at 6-8.
1. Balisho is distinguishable
In Paligbo, the defendant, Palisbo, testified that his
friend, Kanchokula, arrived at Palisbo's home in a van and that
Kanohokula indicated that the vehicle belonged to a cousin, 93
Hawas'i at 349, 3 P.3d at S15. At Kanohokula’s request, Palisbo
drove the vehicle, whereupon the police stopped the van and
arrested both Palisbo and Kanohokula. Id. The vehicle did not
belong to Kanohokula’s cousin but was, in fact, stolen. Id.
at 351, 3 P.3d at 517. Palisbo was charged with unauthorized
control of a propelled vehicle, in violation of HRS $ 708-836,
id. at 347, 3 P.3d at 513, and he sought to assert the mistake
of-fact defense at trial, dd. at 354, 3 P.3d at 520, The circuit
court refused to give Palisbo’s proposed mistake-of-fact
instruction, and he challenged the circuit court's ruling on
appeal. Id, The Palisbo court held that the circuit court
correctly declined to give the mistake-of-fact instruction,
reasoning that:
Here, the only factual mistake which would have
absolved (balisbo) from Lisbility onder the stetute
7 ane prosecution's position is difficult to reconcile with its coments
during rebuttal argunent in Lopez. In emphasizing that Lopez had failed co
Corroborate his defense that “Re Fecelved permission to use the car from Rasba,
the DPA renarked that, if Lopez had called fanba to testify and if Ranba had
Sdniteed that ne had ent Lope: the car and that he did not know that the car
ae stolen, then the DPA would perhaps have voted not guilty if given the
Spportunity.. The purpose of such testimony from Rambs would have bean £9
Support and reinforce Lopes's defense that ne had Been unaware that Raaba was
ot the vehicle's owner and that he hag thus been mistaken a5 to the icentity
Of the car’a true owner. The OPA's implicit concession that he would
Potentially vote nov guilty based on chat defense stance in sharp contrast to
The stance ne took during the settionent of jury instructions that the defense
was simply onavailable.
23
‘** FOR PUBLICATION IN WEST'S HANAI'T REPORTER AND PACIFIC REPORTER +++
would be 2 mistaken belief that the ower himself nad
authorized [the dlefendant’s use of the vehicle
[Palisbo! dia not adduce evidence suggesting he had
obtained the consent of ... . the van’s [actual
Fegisterea) guuerl] to operate it. If (Palisbol had
resented evidence tending to show that he was under
the mistaken belief that he camer had aushorizad him
to operate the vehicle, then the jury would have had
£5 be instructed on the mistake of fact defense,
However, (Palisbe’s) defense hag nothing to do
with believing thet he himself had the owner’ =
Tadeed, on appeal, (Palisbo) maintains that
fake of fact instruction should have been given
Since *he believed that Kanohotulars use of the
venisie was lawful.’ (eephasie added.)
Id. at 355, 3 P.3d at 521 (emphases in original).
The prosecution relies on the Palisbo court's
conclusion that, “Here, the only factual mistake which would have
absolved [Palisbo] from liability under the statute would be a
mistaken belief that the owner himself had authorized [the
dlefendant’s use of the vehicle.” Id, In the prosecution's
view, the only mistake that could have absolved Lopez or
Mainaaupo of Liability under HRS § 702-218 would be a mistaken
belief that the true owners of the vehicles had themselves given
‘Lopez and Mainaaupo permission to drive the cars. We do not,
however, read Palisbo so broadly. The sentence cited by the
prosecution is prefaced by the word “here” and proceeds to
address the specifics of the case, See id. As Lopez and
Mainaaupo observe, the defendant in Palisbo plainly admitted that
he was aware that the person who had authorized his use of the
vehicle was not the vehicle's owner but, rather, merely the
cousin of the alleged owner. Id. at 349, 3 P.3d at 515. Thus,
Palisbo did not claim a mistaken belief that he had permission to
use the vehicle from the person who owned the car. See id. That
is, however, precisely the claim advanced in the present matter
24
44+ OR PUBLICATION IN WEST'S HAWAL'T REPORTER AND PACIFIC REPORTER *¥*
by both Lopez and Mainaaupo. Therefore, in our view, Balisho
simply does not speak to the specific question before us.
Putting Balishe aside, we now turn to the plain language of HRS
§ 702-218.
2. The plain Languase of HAS $ 702-218 dictates that
Lopez_and Mainaauno were cach entitled to assert
the mistake-of-fact defense with respect to the
duthorization clenont of HRS 6 708-076
HRS § 702-218 provides in relevant part that
tisa
defense that the accused engaged in the prohibited conduct under
ignorance or mistake of fact if . . . [t]he ignorance or mistake
negatives the state of mind required to establish an element of
the offense. . . ." See supra note 2 (formatting altered). “The
elements of an offense are such (1) conduct, (2) attendant
circumstances, and (3) results of conduct, as. . . [alre
specified by the definition of the offense... .” HRS
§ 702-205 (1993) (formatting altered). In the present matter,
Lopez and Mainaaupo were each charged with unauthorized control
of a propelled vehicle, in violation of HAS § 708-836, see supra
note 3, which provides in relevent part that “[a] person conits
the offense of unauthorized control of a propelled vehicle if the
person intentionally or knowingly exerts unauthorized control
over another's propelled vehicle by operating the vehicle without
the owner's consent,” HRS § 708-636(1). “Owner” is defined to
include the “registered owner” of the vehicle. id. $ 708-836(4)
Accordingly, the elements of the relevant iteration of HRS
§ 708-836 are (1) the person’s conduct of exerting control over a
thing by operating it, (2) the attendant circumstance of the
thing being “ancther’s” (ise., the registered owner's) propelled
25
‘406 FOR PUBLICATION INV WEST’ S HAWAI'T REPORTER AND PACIFIC REPORTER +++
vehicle, and (3) the attendant circumstance of the person's
control/operation being without the registered owner's consent
(hereinafter, “the authorization element”], see State v. Aiwohi,
109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005) ( ‘(Alay
circumstances defined in an offense that are neither conduct nor
the results of conduct would, by default, constitute attendant
circumstances elements of the offense.’” (quoting State
107 Hawai'i 159, 172, 111 P.3d $4, 67 (App. 2005)))1 cf. dd
Moser,
at 128, 123 P.3d at 1223 (holding that, under the manslaughter
statute, the defendant did not recklessly cause the death of
another “person,” because the attendant circumstance of
“personhood” did not exist at the time the defendant engaged in
the allegedly culpable conduct of prenatally ingesting
methamphetamine, insofar as the defendant's inchoate child, who
died after being born, was a fetus at the tine of the defendant's
proscribed conduct, and “a fetus is not a ‘person’ within the
plain meaning of the statute”); State v, Valentine, 93 Haw. 199,
207, 998 P.2d 479, 487 (2000) (holding that the elements of a
firearm possession statute include the conduct of @ person
possessing 2 thing and the attendant circumstance of the thing
exhibiting the attributes of a firearm). With respect to the
authorization element, Lopez and Mainaaupo each assert a mistaken
belief that the person who authorized his use of the vehicle was
the registered owner of the vehicle. Assuming that HRS
§ 708-836’s intentional or knowing state of mind applies to the
authorization element, an attendant circumstance, gee HRS
§ 702-205, the mistake alleged by both Lopez and Mainaaupo would
26
‘166 FOR PUBLICATION IN WEST'S HAWA1'T REPORTER AKD PACIFIC REPORTER
“negative(] the state of mind required to establish [the
authorization] element of the offense.” See supra note 2. Thus,
the question becomes whether the state of mind specified by the
statute applies to the authorization element. We agree with
Judge Nakamura that HRS § 702-207 provides guidance in addressing
this question, See Nakamura dissent at 5-6.
HRS § 702-207, entitled “specified state of mind
applies to all elements,” provides that, “[wJhen the definition
of an offense specifies the state of mind sufficient for the
commission of that offense, without distinguishing among the
elements thereof, the specified state of mind shall apply to all
elements of the offense, unless a contrary purpose plainly
appears.” The state of mind prescribed by HRS $ 708-836 is
intent ox knowledge, and the statute does not distinguish among
its elements. See supra note 3. Accordingly, the intentional or
knowing state of mind required by HRS § 708-636 applies to the
authorization element, unless the statute “plainly appears” to
hold that state of mind inapplicable to the authorization
element, see supra note 4. In our view, HRS § 708-836 does not,
on its face, evidence a clear intent to hold its expressly
articulated requisite state of mind inapplicable to the
authorization element but, on the contrary, provides that a
person commits the offense if he “intentionally or knowingly
exerts unauthorized control,” see supra note 3. See Kalama, 94
Hawai‘ at 66, 8 P.3d at 1230 (holding that the intentional state
of mind set forth in an indecent exposure statute applied to all
elements of the offense, because “on its face” the statute did
20
64 FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +++
not “‘distinguish among [its] elements’ (quoting HRS
§ 102-207)}; State v. Bone, 78 Hawai’ 262, 265-66, 892 P.2¢ 455,
458-59 (1995) (holding that the intentional mind state set forth
in a fourth degree criminal property damage statute applied to
each of its elements, because “no contrary purpose ‘plainly
appears’ on the face of the statute” (quoting HRS § 702-207))7 In
re Doe, 76 Hawai'i 85, 92, 869 P.2d 1304, 1311 (1994) (holding
that, inasmuch as the intentional state of mind is prescribed by
a harassment statute and “no contrary purpose ‘plainly appears’
on the face of the statute,” the intentional state of mind “is
the requisite state of mind for each of the elements set forth in
[the statute]” (quoting HRS § 702-207)). As Judge Nakamura
observed, “a defendant cannot intentionally or knowingly exert
‘unauthorized’ control unless the defendant intended or knew that
his or her use of the vehicle was without the owner's consent,”
and, consequently, “under the most natural and common reading of
the statutory language, proof that the defendant knew that his or
her use of the vehicle was without the owner's use is required.”
Nakamura dissent at 5.
Nevertheless, the thrust of the prosecution’s argument,
in light of its heavy reliance on legislative history, appears to
be that a “contrary purpose plainly appears” in the legislative
history of HRS § 798-836 sufficient to render the statute's
expressly recited state of mind inapplicable to the authorization
element. This court may not, however, rely upon a statute's
legislative history, unless the statute’s language is ambiguous
28
‘4+ FOR PUBLICATION IN WEST'S EAKAI'T REPORTER AND FACIFIC REPORTER *+*
or produces an absurd or unjust result, see Thompson, 112 Hawai'i
at 475, 146 P.3d at 1052, because, as this court has explained:
‘vie cannot change the language of the statute, supply
avant, of enlarge upon if in order to make it salt a
Gereain state of facts, Wwe do not legislate or make
Tees. Even when the court is convinces in ste oun
find that the Legislature really meant and intended
Sonething not expressed by the phraseology of the Act,
it has no authority to depart from the plain meaning
of the language used.”
State v. Dudoit, 90 Hawai'i 262, 271, 978 P.2d 700, 709 (1999)
(quoting, inter alia, State v. Mever, 61 Haw. 74, 77-78, 595 F.2d
288, 291 (1979)) (emphasis omitted); see also State v. smith, 103
Hawai'i 228, 233, 81 P.3d 408, 413 (2003); State v. Mueller, 102
Hawai'i 391, 394, 76 P.3d 943, 946 (2003).
The prosecution does not argue, and we do not discern,
that the language of HRS § 708-836 is ambiguous with respect to
the applicability of the state of mind requirement to the
authorization element. See ICA’s Lopez men. op. at 5-8; ICA's
Mainaaupo men. op. at 6-8. To the contrary, the prosecution
affirmatively characterizes the statute's “language” as “plain,”
and, as we mentioned previously, the statute provides that the
applicable state of mind for the authorization element is
intentional or knowing. CE, State v, Klie, 116 Hawai'i 519, 525,
174 P.3d 358, 364 (2007) (questioning the prosecution’s “resort
to an examination of the legislative history” of a street
solicitation statute, because “the prosecution did not assert
that [the statute] is ambiguous”). Mor has there been any
suggestion by the prosecution that a straightforward reading of
the statute would yield an absurd or unjust result.
23
In short, because the language of HRS § 708-836 plainly
and unambiguously applies its prescribed state of mind to the
authorization element and because 2 forthright reading of the
statute does not appear to produce an absurd or unjust result, we
are not at liberty to rely upon legislative history in
interpreting the statute, see Thompson, 112 Hawai" at 475, 146
P.3d at 1052, even if the history may show that the legislature
‘really meant and intended something not expressed by the
phraseology of the (statute],’” see Dudoit, 90 Hawai'i at 271,
978 P.2d at 709 (quoting, inter alia, Mever, 61 Haw. at 77, 595
P.2d at 291); see also T-Mobile USA, Inc. v. County of Hawai'i
Planning Comm'n, 106 Hawai'i 343, 352-53, 104 P.3d 930, 939-40
(2005) (holding that, inasmuch as this court has previously
recognized a statutory term “to be plain and unambiguous, (this
court 4s} not at liberty to look beyond the statute’s plain and
obvious meaning”); State vs Yamada, 99 Hawai'i 542, 952-53, 57
P.3d 467, 477-78 (2002) (“Inasmuch as the statute’s language is
plain, clear, and unambiguous, our inguiry regarding its
interpretation should be at an end.”); Kalama, 94 Hawai'i at 64,
8 P.3d at 1228 (declining to rely upon the legislative history of
an indecent exposure statute in determining whether the statute
encompassed nude sunbathing, because the statute was not
ambiguous) «
‘To summarize, because HRS § 708-836 does not “plainly
appear” to render its specified state of mind inapplicable to the
authorization element, the intentional or knowing states of mind
apply to the authorization element. See supra note 3; cf.
30
‘104 FOR PUBLICATION TN WEST'S WANAI'T REPORTER AND PACIFIC REPORTER +**
Nakamura dissent at 5-6. Consequently, we hold that a defendant
prosecuted under HRS § 708-836 may assert the mistake-of-fact
defense with respect to the authorization element, where he
claims that he mistakenly believed that the person who authorized
his operation of the vehicle was the vehicle’s registered owner,
because such a belief would potentially “negative(] the state of
mind required to establish (the authorization] element of the
offense.” See aupra note 2.
In this case, Lopez and Mainaaupo requested that the
circuit court instruct the jury on the mistake-of-fact defense,
because each testified to his belief, which each later realized
was mistaken, that the person who consented to his use of the
vehicle (Greg Ramba and Doug, respectively) was the registered
owner of the vehicle. The prosecution argues that, while
Mainaaupo may have testified that Doug gave him permission to use
a car, Mainaaupo did not testify that Doug gave him permission to
use Cordova’s Nissan Maxima in particular and, therefore,
whatever permission Mainaaupo may have allegedly received from
Doug could not have extended to the operation of Cordova’s Nissan
Maxima, Nevertheless, Mainaaupo did testify that Doug told him
that the car was located at Shark’s Cove, that he waited on the
evening of June 4, 2005 until only one car remained in the
parking lot at Shark’s Cove, and that the key he received from
Doug unlocked the doors to that car. ‘Thus, although Mainaaupo
admitted that Doug did not disclose the make or model of the car,
he did articulate the process of elimination by which he
attempted to identify the car that he claimed to believe belonged
31
‘+4 FOR PUBLICATION IN’ WEST’ S HAWAI'I REPORTER AND PACIFIC REPORTER +++
to Doug. However weak Lopez and Mainaaupo’s testimony may have
been, we think that they were each entitled to have the circuit
court give their mistake-of-fact jury instructions. See State v
Hixonaka, 99 Hawai'i 198, 204, 53 P.3d 806, 812 (2002) (**IA]
defendant is entitled to an instruction on every defense or
theory of defense having any support in the evidence, provided
such evidence would support the consideration of that issue by
the jury, no matter how weak, inconclusive, or unsatisfactory the
evidence may be.’” (Quoting State v, Maciega, 60 Hawai'i 172,
178-79, 907 P.2d 758, 764-65 (1995).)). Thus, the circuit court
erred in declining to give their requested instructions.
‘The circuit court did, however, over Mainaaupo's
objection, give Prosecution’s Proposed Instruction No. 7, which
directed that, “(ulnder the law relating to the offense of
‘unauthorized control of propelled vehicle[,]’[] a non-owner of a
vehicle has a legal duty to obtain consent to operate the vehicle
directly from the registered owner of the vehicle.” We agree
with Judge Nakamura that the instruction essentially mandated
that, “[b]ecause the defendant ha[d] the duty of obtaining
consent directly from the vehicle’s registered owner, the
defendant [was] subject to criminal liability if he or she
failled] to do so,” and, therefore, implied that “it is no
defense that the defendant obtained consent from someone the
defendant believed was the vehicle’s owner if the belief turns
out to be wrong.” Nakamura dissent at 3, Prosecution’s Proposed
Instruction No. 7 was both “prejudicial and misleading because it
improperly undermined Mainaaupo's mistake-of-fact defense.” Id.
32
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER *+*
at 147 see also Yan Dyke, 101 Hawai'i at 383, 69 P.3d at 94.
Consequently, the circuit court further erred in giving this
instruction to the jury.
Because there is a reasonable possibility that the
circuit court's erroneous jury instructions contributed to both
Lopez's and Mainaaupo’s convictions, we vacate the judgments
against them and remand their cases for new trials. See van
Dyke, 101 Hawai'i at 383, 69 P.3d at 94.
B. Lopez's Allegations Of Improper Prosecutorial Comment
The ICA erred by failing to conclude that the
DPATs improper comments on Lopez's post-arrest
i nable
doubt,
Lopez argues that the prosecution’s comments during
closing and rebuttal argument regarding his post-arrest silence
went beyond legitimate comment on the evidence, such that he is
entitled to a new trial. In evaluating whether improper
prosecutorial comment warrants anew trial, we consider the
following three factors: “*({1) the nature of the conduct; (2)
the promptness of 2 curative instruction; and (3) the strength or
weakness of the evidence against the defendant.” State vi.
Hauge, 103 Hawai" 38, 47, 79 P.3d 131, 140 (2003) (quoting State
vs Pacheco, 96 Hawai'i 83, 93, 26 P.3d 572, 582 (2001)).
a. The nature of the DPA‘s conduct
Lopez contends that the DPA’s remarks during closing
and rebuttal argument improperly commented on his post~arrest
silence and, therefore, violated his right to remain silent.
“there is nothing more basic and more fundamental than that the
accused has a constitutional right to remain silent, and the
3
‘e+ FOR PUBLICATION I WEST'S HAWATT REPORTER AND PACIFIC REPORTER +++
exercise of this privilege may not be used against him." state
ve Bblo, 57 Haw. 428, 424, $58 P.2d 1012, 1016 (1976). Although
the record does not reflect whether Lopez received Miranda
warnings from Officer Hawkins or any other police officer at the
time or after he was arrested, we hold that the right against
self-incrimination attached at least ae of the time of the
arrest,” “because the right to remain silent derives from the
Constitution and not from the Mixanda warnings themselves.”
United States v. Velarde-Gomez, 269 F.3d 1023, 1029 (9th cir.
2001) (en banc) (citing United States v. Whitehead, 200 F.3d 634
(9th Cir. 2000)}. “Any other holding would create an incentive
for arresting officers to delay interrogation in order to create
an intervening ‘silence’ that would then be used against the
defendant.” United States v. Moore, 104 F.3d 377, 386 (D.C. Cir.
1997) 1°
§ the eight to remain silent resides in the fifth anendnent to the united
States Constitution, gaa U.S. const, amend. V (No persons c+ shall be
Conpelied in any crimiasl cage tose # witness against ninself’.
which applies to the states through the fourteenth amendment, 332,
Hogan, "S96 0-5-1, 6 (1964) ("We hold today that the Fitth Amendments
exception from compulsory self-incrimination is also protected by the
Fourteenth Anendnent against abriagnent by the States."), and in article 1,
section 10 of the Hawai'i Constitution, gee Haw. Const- art. 1, $10 ("(Nlor
shall any person be compelled in any criminal case to be a witness against
onesel!.
* mie the DEA’s conments could also be interpreted to refer to Lopes's
precarrest silence, Lopes does not raise that point on appeal, and, therefore,
We do aot address it, As an aside, courts are divided on whether the
Government may comestt on 3 defendant"s prevarrest silence. Ses Combe v
Seler 208 Fs34°269, 282 (6th Cir. 2000) (eotlesting cases).
wo Aub see United States v Frazier, 408 F.3¢ 1102, 1111 (ath cir. 2005)
(concluding that the prosecution could comment on the’ defendant’ s post-arrest,
pre-Mizanda silence because, “{a]lthough (the defendant] was under arrest,
Phere was no governmental action at that point inducing his silence"|) Moore,
lof F.3d at 395 (Silberman, J., concurring) (asserting that the rationele of
Hlecchar ¥ Wois, 4590-8, 603" (1962) (per curiam) ~~ which held that. t
continsed.
34
‘e+ FOR PUBLICATION JN WEST'S HAKAI'T REPORTER AND PACIFIC REPORTER +
Lopez takes issue with the DPA’s comments pertaining to
what an “innocent person” would have done in Lopez's situation
when arrested by Officer Hawkins. The DPA’s remarks related to
the testimony of Officer Hawkins, who confirmed on cross~
examination by defense counsel that, when he stopped Lopez for
speeding, Lopez told him, “(T]he car belongs to a friend and he
doesn’t know where the paperwork is.” On redirect examination by
the DPA, the officer testified that Lopez did not disclose his
friend’ s name or address or how he might have acquired the car
from his friend. The DPA asked, “Did he say anything at all
about this friend except [‘]well, I got it from a friend, I don’t
know where the paperwork is(']?,” to which Officer Hawkins
responded, “That’s all he said.” On recross-examination, the
officer admitted that he could not recall whether he asked Lopez
for “his friend’ s name and information Like that.”
After sunnarizing Officer Hawkins’s testimony during
closing argument, the DPA asserted, “A person is stopped in a
stolen car and he really is innocent, what’s the first thing he’s
going to do?” Lopez objected on the ground that the DPA's
comments offended his right to remain silent, but the DPA
countered that Officer Hawkins’s testimony was “in evidence,” and
the circuit court overruled the objection. Continuing, the DPA
18(. . seonttnued)
government may use the defendant's post-arrest, pre-izanda silence for
‘because, st that point, the defendant has not been assured that
Ris silence will not be used against nim +~ snculd be extended to the
proposition that the government may affirmatively use the defendant’ s post-
Errest, pre-Wigange silence as substantive evidence of guilt); United States,
yuRiverg, 94¢ F-26 1563, 1567-68 < n.11 (2lth cir. 1991) ("(2)he government
may comment on a defendant's silence when it occurs after arrest, put before
Migansa warnings are given.” (Citing Pletcher, #58 0.5. 633-1)-
35
FOR PUBLICATION IM WEST’ S HAWAI'T REPORTER AND PACIFIC REPORTER
asserted that an “innocent person” in Lopez’s situation would
have told Officer Hawkins, “[*JWait a minute, wait a minute, 1
got it from my friend Greg Ramba, he lives in Makakilo, he fixes
cars, he told me 1 could drive it, wait, wait, wait.(’]" During
his closing argument, defense counsel raised Officer Hawkins’ s
inability to remember whether he
ked Lopez for information
regarding his friend, apparently to imply that Lopez did not
disclose that information because Officer Hawkins probably did
not ask. On rebuttal, the DPA responded that “the officer
wouldn't need to ask{+] an innocent person would just start
talking and try to convince the person arresting him that he
didn’t do it,” because a “reasonable person” in Lopez's position
would have said, “[]I got [the car] from my friend, Greg Ramba,
brah, go talk to him, he‘ll tell you.["}" According to the OPA,
Lopez said “(njothing like that.”
The prosecution asserts that defense counsel’ s
questions during his cross-examination of Officer Hawkins
regarding what Lopez did say about his friend opened the door to
the DPA’s inquiry on his redirect examination of the officer with
respect to what Lopez did not say. Lopez responds that he takes
issue not with the DPA's redirect of the officer but, rather,
with the manner in which the DPA commented on that evidence
during closing and rebuttal argunent. The prosecution asserts
that the DPA’s comments on Officer Hawkins’s testimony during
closing and rebuttal argument were “entirely proper,” because the
testimony was “in evidence," and, as such, the DPA could
“properly discuss the import of [Lopez's] failure to provide
36
+9 FOR PUBLICATION IN WEST’ S HAWAI'T REPORTER AND PACIFIC REPORTER +++
(officer) Hawkins with his friend’s name, address, and other
information.”
Although a prosecutor has wide latitude in commenting
on the evidence during closing argument, it is not enough that 2
his conments are based on testimony “in evidence”; his comments
must also be “legitimate.” See State v, Clark, 83 Hawai'i 289,
304, 926 P.2d 194, 209 (1996) (*[A] prosecutor, during closing
argunent, is permitted to draw reasonable inferences from the
evidence and wide latitude is allowed in discussing the evidence.
It is also within the bounds of legitimate argument for
prosecutors to state, discuss, and comment on the
evidence . . . .” (Citations onitted.)). A prosecutor's
comments are legitimate when they draw “reasonable” inferences
from the evidence. See Juli, 10 Hawai'i at 208, 65 F.3d at 155
("The prosecution is permitted to draw reasonable inferences from
the evidence... .”).
In this case, the DPA’s comments were not “legitimate”
because, in contravention of Lopez's fundamental right to remain
silent, see Alo, 57 Haw. at 424, 558 P.2d at 1016, the DPA argued
the unreasonable inference that Lopez was guilty in light of his
post-arrest silence, that is, his failure to act like an
“innocent person” and disclose to Officer Hawkins Ranba's name,
address, and occupation. See Whitehead, 200 F.3d at 638-39
(holding that the district court erred in permitting the
prosecutor to comment on the defendant’s post-arrest silence
during closing argument by remarking that, after the defendant
was arrested, he failed to ask “what is going on here?,” “Why T
3
‘44 FOR PUBLICATION IN WEST’ § HAKAI'T REPORTER AND PACIFIC REPORTER #*+
am being treated like this?,” and “hy am I being arrested?” and
by commenting that “the defendant didn’t say a word because he
knew"); United States v. Branson, 756 F.2d 752, 753-54 (9th Cir.
1985) (holding that the prosecutor improperly referred to the
defendant's post-arrest silence during closing argument by
asserting that an “honest person” in the defendant’s position
would have told the law enforcenent officer, “I don’t know this
was counterfeit, I just got it somehow,” and that the defendant
refused to tell law enforcenent where he received the counterfeit
bills); Scarboroush v. Arizona, $31 F.2d 959, 961 (Sth Cir. 1976)
(finding “fundamental exzor” where the prosecutor conmented
during closing argument that the defendant renained silent after
he was arrested and that, “if he were arrested for armed robbery,
he would have said something -- if he were not guilty"); ef.
State v. McCrory, 104 Hawai'i 203, 208, 87 P.34 275, 280 (2004)
(observing that a defendant “has no affirmative duty to proclaim
his innocence”).
‘The prosecution cites two cases in support of its
azgunent that the DPA's conments were “entirely proper,” to wit,
Haue and State v. Brigaman, 316 N.E.2d 121 (I11. App. ce. 1974).
In Hauge, this court concluded that, because the defendant
undertook to “*explain away’ much of the prosecution's evidence,”
he “virtually invited” the prosecutor to cross-examine him and
later comment, during rebuttal argument, on his failure to
“explain away” the DNA evidence showing that his blood was found
at the scene of the crime. 103 Hawai'i at 57, 79 P.3d at 150,
In Brigaman, the Illinois Appellate Court held that, because the
38
‘s+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER ++
defendant volunteered on cross~examin
tion that he had been
“smoking reefers” on the night in question, “he assumed the risk
that his testimony would be subject to elaboration by cross-
examination or conment in closing argunent” and, therefore, the
prosecutor's conment during closing argument that “he had smoked
some reefers” was proper. 316 N.8.2d at 127. hile these cases
permit prosecutorial comment on issues raised by the defendant,
We conclude that they are distinguishable. They do not suggest,
much less hold, that a prosecutor may argue to the jury that a
defendant’s failure to disclose facts to the police during and
following his arrest may be equated with guilt, which is
precisely what the DPA did in the present matter by suggesting
that the “import of [Lopez's] failure to provide (Officer)
Hawkins with his friend’s name, address, or other information,”
was that Lopez “didn’t do” “what an innocent person would do.”
In light of the language employed by the DPA, we think
that the jury would “naturally and necessarily” interpret his
remarks during closing and rebuttal argument as comments on
Lopez's post-arrest silence and that the comments are
consequently “improper.” See State v, Wakisaka, 102 Hawai'i 504,
515-16, 78 P.3d 317, 328-29 (2003) (holding that, “given the
language used, the jury would naturally and necessarily interpret
the prosecution’s rebuttal argument as a comment on [the
defendant's] failure to testify,” where the prosecutor commented
during closing argument that the defendant would know certain
facts and that, “(4)£ he doesn’t tell us, we can only look to
(the evidence} and see what [the evidence] tells us”); State vw
39
FOR PUMLICATION TN WEST'S HAWAL'E REPORTER AND PACIFIC REPORTER +
Vild, 746 P.2d 1304, 1348 (Ariz. Ce. App. 1987) (holding that the
prosecutor improperly conmented on the defendant's post-arrest
silence because, “[w]hile the prosecutor did not flatly state
that the (defendant) remained silent after his arrest, his
description of what an innocent person would have said when first
informed of his arrest for cocaine-related offenses implied that
this is what the (defendant) would have said at the time of his
arrest or shortly thereafter if his testimony had been true”
(emphasis onitted)).
Accordingly, the ICA erred in concluding that the DPA
was legitimately conmenting on the evidence and drawing
reasonable inferences therefrom. ICA’s Lopez mem. op at 10. The
nature of the DPA's conduct
favor of granting Lopez a new trial. See Wakisaki, 102 Hawai'i
at $15-16, 78 P.3d at 328-29.
>. and
‘the strength or weakness of the evidence
against Lopez,
Generally, this court considers “a curative instruction
the first factor -- weighs in
sufficient to cure prosecutorial misconduct because [it)
Presune[s] that the jury heeds the court’s instruction to
disregard improper prosecution comments.” Id. at 516, 78 P.3d
at 329, In this case, however, the circuit court declined to
give a curative instruction when Lopez objected to the DPA’s
conments and, instead, overruled the objection. Thus, the
circuit court's failure to give any form of curative instruction
militates in Lopez's favor. See id. (holding that the circuit
court’s failure to give a curative instruction in response to the
40
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER +1
prosecution's comment on the defendant's decision not to testify
at trial weighed “heavily” in the defendant's favor); State v,
Bogan, 91 Hewai'i 405, 415, 984 P.2d 1231, 1241 (1999)
(concluding that the second factor weighed “heavily” in favor of
the defendant, because the circuit court did not give a curative
instruction in the wake of the defendant’s objection to the
prosecutor's “inflanmatory” argument) «
Nevertheless, the prosecution argues that the evidence
against Lopez was strong because, pursuant to HRS § 708-836, see
supra note 3, it “only” had to prove that he intentionally or
knowingly operated the car without first obtaining Gregory's or
Mona's consent and because Lopez admitted those facts. The
prosecution's argunent rests on the false premise that it was not
subject to the burden of proving that Lopez was not mistaken as
to the identity of the registered owner. As we explained supra
in section ITI.A, we believe that the intentional or knowing
state of mind prescribed in HRS § 708-836(1) applies to the
authorization elenent of the offense, such that the prosecution
bore the burden of proving that Lopez did not mistakenly believe
that the person who authorized his use of the vehicle was the
registered owner of the vehicle. Proof of this element turned
principally on whether the jury believed Lopez’s account of how
he acquired the car. Accordingly, under the third factor, we
think that the evidence in this case is not so overwhelming that
we are convinced that the DPA’s intrusion into Lopez‘s right to
renain silent may not have contributed to his conviction. See
Rogan, 91 Hawai'i at 415, 984 P.2d at 1241 (holding that the
al
‘104 FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER *
evidence against the defendant, which essentially turned on the
credibility of the complainant and the defendant, “was not so
overwhelming as to outweigh the inflamatory effect of the deputy
prosecutor's (racial] comments").
In summary, we hold that all three factors counsel that
the DPA’s improper comments were not harmless beyond a reasonable
doubt and, consequently, that Lopez is entitled to @ new trial on
remand." See Wakisaka, 102 Hawai'i at 316, 78 P.3d at 329
(holding that, because all three factors denonstrated that the
prosecution's improper comment on the defendant's failure to
testify was not harmless beyond a reasonable doubt, the defendant
was entitled to a new trial). The ICA erred insofar as it
reached a contrary conclusion.
2. The ICA correctly concluded that the DPA‘s
Lopez argues that the DPA’s comments during closing and
rebuttal argument with respect to Lopez's failure to call Greg
Ramba were improper, because they unreasonably implied that Lopez
bore the burden of proof.
“‘when it would be natural under the circunstences for
a party to call a particular witness, and he fails to do so,
tradition has allowed his adversary to use this failure as the
basis for invoking an adverse inference.’" State v, Padilla, $7
Lopez does not argue, and we do not believe, that the DPA's comments on
his postrarrest silence were so egregious that double jeopardy shosla attach
bo ap to prevent Ais retrial. See Wakisahi, 102 Hawai at 516, 78 P.3a
fat 325 (holding that the prodecuter’s improper coment on the defendant's
failure to testify was not “so egregious that double jeopardy should attach to
prevent retrisl”). “Indeed, Leper only requests a new trial.
42
+++ OR PUBLICATION IH WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +4
Haw. 150, 160, 552 P.2d 357, 364 (1976) (quoting McCormick,
Evidence 656-67 (2 ed. 1954)). Tt is “natural” for a party to
call a witness when “‘a party has it peculiarly within his power
to produce [a] witness(] whose testimony would elucidate the
transaction.’" 2 Kenneth S. Broun et al., McCormick on Evidence
221 (6th ed. 2006) (quoting Graves v. United States, 150 U.S.
118, 121 (1893)), Under those circumstances, the permissible
inference is that, if the witness had been called by the party,
the witness's testimony would have been unfavorable to the party.
See id. In Badilla, this court held that, because the defendant
invoked an adverse inference with respect to the prosecution's
failure to call a witness, the prosecution was entitled to
explain why it had not done so. 87 Ha. at 161, 562 P.2d at 364.
This court has not, however, addressed the question whether the
prosecution may invoke an adverse inference against the defendant
by virtue of his failure to cali a witness.!?
12 in State ve Napalu, 85 Hawai'i 49, 936 P.24 1257 (App. 1597), the TCR
held thateiahere"s defendant relies on an alibi defense and presenta sone
evidence concerning the alibi, ne opens she door to prosecutorial comment on
Sthe state of the evidence, [the defendant's] failure to call logical
Witnesses, and/or [the defendant's failure to) present material evidence.”
Ha. st 49; 59, 936 F.2d ot 1307, This court discussed Napelu in Hauge
in Hauge, the prosecution adduced DNA evidence showing that. the
defendant's bied wae found at the scene of the crime. 103 Hawai't at 45-66,
459 pead at 138-39, ‘The defendant testified that the blood found at the scene
wee fet his but, on cross-oxamination, admitted that his testimony was
Tnconsistent with the DNA evidence. id, at 54, 79°P.3d at 147. During
Closing ergunent, the prosecution asserted, “we explained away everytning
except the ost inportant evidence of all. He could not explain away why the
Binks evidence pinpointed him inside that rosm.’” Id, at 138, 79 B30 at 46,
On appeal, the defendant argued that the prosecutor's coments were inproper,
Gletinguishing Hapelu on the ground that the defendant in chat case agserted
an alibi defence, whereas he Gia not assert an alibi defense. Id. at 55, 79
Plag ae 148, Tale court held that, although the defendant aid not raise’ an
alibi defense, he did undertake to’ “explain auay” such of the prosecution's
evidence and, consequently, opened the door to the prosecution's cross~
Chamination ang Later "‘ounment on the state of the evidence.’” Isat 57,
(Font inved...)
43
FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER +++
Lopez cites Ross v, State, 803 P.2d 1104 (Nev. 1990),
in which the Nevada Supreme Court held that “[ilt is generally
outside the boundaries of proper argument to comment on a
defendant's failure to call a witness,” because such comment
improperly “‘suggests to the jury that it was the defendant's
burden to produce proof by explaining the absence of witnesses or
evidence.’” Id, at 1105 (quoting Barron v. State, 783 P.2d 444,
451 (Nev. 1989)). In response, the prosecution quotes several
paragraphs from Napolu, which include a citation to United states
MaBautista, 23 F.3d 726 (2d Cir. 1994), a decision upon which
Lopez also relies, apparently for a fall-back position in the
event that this court declines to follow Ross. In Bautista, the
United States Court of Appeals for the Second Circuit observed
that “the government may comment on a defendant's failure to call
witnesses to support his factual theories,” but “may not. . . go
further and suggest that the defendant has the burden of
producing evidence.” Id, at 733.
Unlike the Boss court's relatively hard and fast rule
against commenting on the defendant’s failure to call witness,
the Bautista court's approach permits such comment to the extent
that it does not impermissibly shift the burden of proof to the
defendant. See id. We believe that the more flexible rule in
2. continues)
103 Pod at 150 (quoting Napolu, 85 Hawai'i at 59, 936 F.24 at 1307).
Jn our view, Hauas only adopted jlanoiu insofar as Nanaly held that,
defendant adduces evidence at trisl, the prosecution may comment On the
evidence during closing argument, See id, Hauge did not sddress liapaly’s
rule that the prosecution say conment on the defendant's fa:lure tevesit
witness, because the missing witness issue was not before this court. Thus,
Chis court has not addressed whether the prosecution may invoke an sdverse
inference by virtue of the defendant's failure to call a logical witness.
“4
HAWAI'T REPORTER AND PACIFIC REPORTER +++
see FOR PUBLICATION IN WES
Bautista is consistent with the “wide latitude” that this court
affords prosecutors when they comment on evidence. See Clark, 83
Hawai'i at 304, 926 P.2d at 209. At the same time, the rule also
safeguards the defendant's right to require the prosecution to
shoulder the burden of proving guilt beyond a reasonable doubt.
See State v. Murray, 116 Hawai'i 3, 10, 169 P.3d 955, 962 (2007)
("The defendant's right to have each element of an offense proven
beyond @ reasonable doubt is constitutionally and statutorily
protected right.”); Hauge, 103 Hawai'i at 55-56, 79 P.3d
at 148-49 (“[E]£forte by the prosecution to shift the burden of
proof onto a defendant are improper and implicate the due process
clauses of the fourteenth amendnent to the United states
Constitution and article I, section 5 of the Hawai['li
Because we believe that the Bautista rule
strikes a fair balance between the interests of both the
Constitution.
prosecution and the defense, we adopt it and conclude that the
prosecution may invoke the adverse inference against the
defendant for his failure to call a witness “[w]hen it would be
natural under the circumstances for (the defendant} to call [the]
witness,” Badilla, 57 Haw. at 160, $52 2.24 at 364 (quoting
McCormick, Evidence 656-67), and when the comments do not
“suggest {] to the jury that it was the defendant's burden to
produce proof by explaining the absence of witnesses or
evidence,” Bautista, 23 F.3d at 733.
In the present matter, Lopez does not dispute that it
would have been natural for him to call Ramba but, instead,
maintains that the DPA’s comments on his testimony impermissibly
45
‘0+ FOR PUBLICATION It WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +++
implied that he bore the burden of proof. At trial, Lopez
testified that Ranba was a friend, law abiding, and honest.
Consequently, during rebuttal argument, the DPA azgued as
follows:
Kouldn’t you have Liked to have heard from Greg Ranba?
[Lopez] says he's a local boy, Lives [in] Makakile
With hie family.” You knox, would it have been so hard
to get him in here into court to tell you
guys(, “Yeah, T lent him the car, T told him it was
Skay, and T neva know it was stolen either("]?
[Lopez] hinself said Greg is law abiding, honest, his
friend. “You snow, don’t you think his Eriend would)
fone ia? “And all’ he would have to say isl, "Yiean, I
Tent him the car.(*] “I would probably vote not guilty
maybe at that point. [°)
hy didn't he do that? T suggest to you one of
two povsibilieies: There is no Greg Ranbs Or Greg
Ranba would have cone in here if he called him and
id something very different from what [Lopes] would
have wanted Greg to say
Lopez argues that the DPA shifted the burden of proof
by repeatedly referring to his failure to call Ramba and by
asserting that, had he called Ramba, Ramba’s testimony would have
been unfavorable. The DPA’s comments on Lopez’s failure to call
Ramba and Ramba’s potentially unfavorable testimony did not,
however, shift the burden of proof. See United States v, Caccia,
122 F.3d 136, 140 (2d Cir. 1997) (holding that a jury instruction
that permits “the jury to draw an adverse inference against [the
defendant] for his failure to call an available material witness”
does not deprive him of his “right to have the prosecution bear
the burden of proof as to all elements of the crime”). Lopez
further argues that the DPA suggested to the jury that “Lopez
deliberately withheld Ranba from the jury because Ramba would
have said ‘said sonething very different from what [Lopez] would
2 see supra note «.
46
‘+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER ***
have wanted Greg [Ramba] to say.’ (Emphasis added.) (Brackets
in original.) The record does not, however, reflect that the DPA
asserted, or even implied, that Lopez was deliberately
withholding Ramba from the jury. To be sure, the OPA’s comments
suggest that Lopez made a strategic decision not to call Ramba,
but they do not, in our view, insinuate foul-play on Lopez's
part.
Lopez next asserts that the DPA shifted the burden of
proof by arguing that, if Lopez had called Ramba and Ramba had
provided favorable testimony, the DPA would perhaps vote not
guilty. According to Lopez, the DPA implied that, “because Ramba
did not testify, Lopez must be found guilty.” (Emphasis added.)
It is true that the prosecution may not expressly or impliedly
assert that the defendant's failure to call a witness obligates
the jury to find the defendant guilty. Cf. United states v.
Mares, 940 F.2d 455, 461 (9th Cir. 1991) (holding that a
prosecutor's comments to the jury did not shift the burden of
proof, because the prosecutor simply stated that, if the defense
failed to mention or adequately explain unfavorable facts, “ask
yourselves why” and because “(t]he prosecutor did not argue that
a failure to explain [the uncomfortable facts) adequately
required a guilty verdict”); Bautista, 23 F.3d at 733 (observing
that “prosecutors should avoid statements suggesting that the
defense is ‘obligated’ at any time ‘to come forward with
evidence’”). Nevertheless, we do not think that the prosecution
made that argument here. The DPA’s precise language was that, if
Lopez had called Ramba to testify and Ramba provided favorable
a
++ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER
testimony, the DPA “would probably vote not guilty maybe at that
point." In our view, this statement implies that, because Lopez
did not call Ramba, the DPA would likely vote guilty. Although
the DPA should have refrained from interjecting his personal
opinion on Lopez's guilt by suggesting how he would vote if he
were a juror, see supra note 4, an issue that was not raised on
appeal or in the proceedings below, we do not believe that he
implied, as Lopez suggests, that Lopez's failure to call Ranba
required the jury to return a guilty verdict, see Mares, 940 F.2d
at 461. Accordingly, we do not perceive that the OPA’s comments
regarding how he would vote shifted the burden of proof to Lopez.
Finally, Lopez contends that the DPA inappropriately
implied that Ranba did not exist by virtue of Lopez's failure to
cali him as a witness. The inference that Ramba did not exist
sonable inferences that the OPA was
falis within the reain of r
permitted to draw from the evidence adduced at trial, especially
given Lopez's inability to recall Ramba’s hone address, despite
the fact that he had allegedly been to Ramba’s house and had
known him for two years. See Juli, 101 Hawai"i at 208, 65 P.3¢
at 155; Alston v. United states, 552 A.2d 526, 528 (D.C. 1992)
(holding that the prosecutor properly commented during closing
argument that the person who allegedly gave the defendant
permission to use a stolen automobile did not exist, because that
theory “could reasonably be inferred from the evidence adduced at
trial," such as defendant's testimony that he did not know the
person’s last name).
48
FOR PUBLICATION 11 WEST'S HAWAT'E REPORTER AND PACIFIC REPORTER ***
Accordingly, we do not believe that the DPA’s comments
regarding Lopez’s failure to call Ramba were improper and,
consequently, we do not address whether they were harmless beyond
a reasonable doubt. See Valdivia, 95 Hawai'i at 483, 24 P.3d
at 679 (*[Wle hold that the [prosecutor's] statement did not
constitute prosecutorial misconduct in the first instance and
need not reach the question whether it was harmless beyond a
reasonable doubt.”). The ICA was correct on this issue. see
TCA’s Lopez mem. op. at 10.
IV. CONCLUSION
For the foregoing reasons, we vacate Lopez and
Mainaaupo’'s convictions and remand their cases for new trials.
James S. Tabe,
Deputy Public Defender (DPD),
for the defendant-
appellant-petitioner
William Mainaaupo, Jr. “Dees TLon
Donn Fudo, b
Deputy Prosecuting setts Oro
Attorney (DPA),
for the plaintiff-appellec~
respondent State of Hawai'i Krone, Batty:
in No. 27764 or
Karen T. Nakasone,
DPD (katie L. Lambert, DPD,
on the briefs) for the
defendant -appel lant-petitioner
Mark K. Lopez in No. 27969
Brian R. Vincent,
DPA (Daniel H.’ Shimizu, DPA,
on the briefs) for the
plaintif£-appellee-respondent
State of Hawai'i in No. 27969
49
|
d8649f89-6fa1-46db-8afe-eada2e5ba9ab | Dominguez v. Price, Okamoto, Himeno & Lum | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26140
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ERLINDA OOMINGUEE, dba 12W OFFICES OF ERLENOA DOnMGUES oe
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(crv. NO. 03-1-2372)
(By: Duffy, J., for the court’)
Petitioner/Plaintiff-Appellant’s application for writ
of certiorari, filed on July 22, 2009, is hereby rejected.
Hawai'i, September 1, 2009.
FOR THE COURT: (Fr
Wa e Dade by" SEAL °|
Associate Justice \ s
Bog ws
DATED: Honolulu,
Erlinda Dominguez,
petitioner/plaintiff-
appellant, pro se,
on the application
William C. McCorriston,
Kenneth J. Mansfield,
and R. John Seibert
(of McCorriston Miller
Mukai MacKinnon LLP)
for respondent /defendant-
appellee in opposition
5 Considered by: Moon, C.J, Nakayama and Duffy, Jd. Chreule
dodge Chan, in place of Accba, J.y recuse, and Circuit Judge Crangall,
fe of Racktenwald, J., rac
Bu
|
6d796f31-6120-4932-b3d8-8572b4782b32 | Keliihananui v. Trinh | hawaii | Hawaii Supreme Court | No. 29763
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
JANICE K. M. CHUNG KELI'THANANUI,
JULIA TRINH, M.D. PSYCHIATRIST, HAWAII STATE Hi
‘and JUDGE 'REYNALDO GRAULITY,
ORIGINAL PROCEEDING
ORDER
(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and
Intermediate Court of Appeais Judge Foley,
assigned by reason of vacancy)
Plaintiff Janice K. M. Chung Keli‘ihananui’s letter and
“brief” dated August 7, 2009 were received and filed in the
supreme court on Septenber 14, 2009 and are deemed a motion for
reconsideration of the April 22, 2009 order dismissing
plaintiff’s complaint. ‘The deadline for filing a motion for
reconsideration of the April 22, 2009 order expired on May 2,
2009. See HRAP 40(a) ("A motion for reconsideration may be filed
by a party only within 10 days after the filing of the opinion,
dispositional order, or ruling unless by special leave additional
time is granted during such period by a judge or justice of the
appellate court involved.). Therefore,
IT IS HEREBY ORDERED that the motion for
reconsideration is dismissed as untimely.
DATED: Honolulu, Hawai'i, September 25, 2009.
arm
Besceten Or et ety ores
aaa
Crane Duty dhe
hee me
o3t4
|
fef7cbaa-23a3-4794-b06f-de6030000f62 | Title Guaranty Escrow Services, Inc. v. Szymanski | hawaii | Hawaii Supreme Court | No, 27254
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
TITLE GUARANTY ESCROW SERVICES, INC.,
Respondent/Plaintiff-Appellee,
a Hawaii corporation,
(CHAEL J. SZYMANSKI, Petitioner/Defendant/
cross-Claimant/Third-Party Plaintiff/Cross-Claim
Defendant /Third-Party Counterclaim Defendant-Appellant,
and
LTD., a Hawaii
WAILEA RESORT COMPANY,
corporation, Respondent /Defendant/Cross-
Claim Defendant /Crose-Clainant-Appellee,
B12 He C1 easeaay
O374
and
ADOA-SHINWA DEVELOPMENT CORPORATION,
@ Hawaii corporation, and SHINWA GOLF HAWAT'T'CO., LTD.,
a Hawaii corporation, Respondents/Third-Party
Defendants/Third-Party Counterclainants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIVIL No. 02-1-0352(2))
sTTORART
SLICATION FOR
(By: Nakayama, J., for the court!)
etitioner Michael Szymanski’s application for writ of
certiorari filed on August 13, 2009, is hereby rejected.
DATED: Honolulu, Hawai'i, September 17, 2009.
FOR THE COURT:
Pesset se Cr ettiy
Associate Justice
ORDER Rt
Peter Van Name Esser
and Edvard A. Jaffe
for petitioner on
the application
Acoba, and Duffy, JJ., and
‘considered by: Moon, C.J., Nakays
circuit Judge Lee, in place of Recktenuald,’ J., recused.
|
3518e855-227a-4bac-aece-09d6e6ba6ecc | State v. Nicholson | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27555
TN THE SUPREME COURT OF THE STATE OF HAWAT'T
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 03-1-2404)
(By: Recktenwald, J. for the court’)
Petitioner/Defendant-Appellant Rodney L. Nicholson's
application for writ of certiorari filed on August 17, 2009, is
hereby rejected.
DATED: Honolulu, Hawai'i, September 29, 2009
FOR THE COURT:
[Mur ©. Necks
Associate Justice
shawn A, Luiz,
on the application for
petitioner /defendant-
appellant.
2 considered by: Moon, C.J., Nakayama, Aco
ckverwald, Jd.
putty, and
|
2589de11-b43a-467e-8f68-7512d453bd32 | Dupree v. Hiraga. | hawaii | Hawaii Supreme Court |
'++FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*!
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
---000.
MICHAEL P, DUPREE, Petitioner/Appellant-Appellee,
vs.
ROY T. HIRAGA, Clerk of the County of Maui, and SOLOMON P.
KAHO'OHALAHALA, Respondents /Appellees-Appellants.
No, 29464
APPEAL FROM THE BOARD OF REGISTRATION, COUNTY OF MAUT
(CASE NO. BOR-08-01) 5)
octoser 20, 2009
MOON, C.J., NAKAYAMA, ACOBA,
DUFFY, AND RECKTENWALD, JJ)
OPINION OF THE COURT BY RECKTENWALD, J. 5)
Roy T. Hiraga and Solomon P. Kaho'ohalahala appeal from
9656 HY 02 Lo060N
the November 1, 2008 decision of the Board of Registration for
Maui County (Board) which determined that Kaho‘ohalahala was not
a resident of tuna'i *[£]or purposes of [the Novenber 2008)
election{.]*
‘he case began in September 2008, when appellee
Michael P. Dupree and eleven other registered voters from Léna'i
sent letters to Hiraga, the Clerk of the County of Maui, which
alleged that Kaho'chalahala was not a Lana'i resident. Hiraga
subsequently found, inter alia, that Kaho'chalahala was a Lana‘
resident when he registered to vote there in July 2008. Dupree
Gaia
‘++POR PUBLICATION IN WEST'S HANA REPORTS AND PACIFIC REPORTER
appealed that determination to the Board, which concluded that
Kaho'chalahala was in fact a resident of Lahaina rather than
Lana‘
‘The questions on appeal include whether: (1) the Board
lacked jurisdiction because Dupree’s complaint was an untimely
challenge to Kaho'ohalahala's eligibility to be a candidate for
the Lana'i seat on the Maui County Council, rather than to his
voter registration, (2) the Board exceeded its jurisdiction by
addressing issues beyond Kaho'chalahala's voter registration, and
(3) the Board erred in concluding that Kaho‘ohalahala was not a
Lana'i resident
For the reasons set forth below, we conclude that the
Board had jurisdiction to hear the appeal, the Board did not
exceed its jurisdiction by addressing issues beyond
Kaho'ohalahala’s voter registration status, and the Board did not
err in concluding that Kaho'chalahala did not have the right to
remain a registered voter of Lanai. Accordingly, we affirm the
Board's Novenber 1, 2008 decision.
1. BACKGROUND
A, Dupree and other Lina‘i residents submit complaints to
Hiraga concerning Kaho’chalahala’s residency
Kaho'chalahala was originally from the island of Lanai
He was registered to vote on tana‘i from June of 1982 until July
‘s++PoR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**#
of 2006, when he registered to vote as a resident of Lahaina,
Maui. In July of 2008, he registered to vote as a resident of
Lana'i City, with an address on Fraser Avenue, and also filed
nomination papers to run for the Lana‘ seat on the Maui County
Council. Two of the qualifications for election to the Maui
county Council are that the candidate must be a voter in Maui
County and must be, at the time of filing nomination papers, a
resident in the area from which the person seeks to be elected.’
Kaho'chalahala’s nomination papers included a certification by
Kaho'ohalahala that he met those qualifications.’ Hiraga did not
Maui County Charter, Section 3-1, provides for a County Council
coaposed of nine members, one from each of the following areas: Lany‘i,
Moloka'l, zage maul, Weat Maui, South Maul, Kahulut, Mokawao-Ho'tko “Pasa,
Pukalani-fula~Ulupalakua, and Wai luku-Waihe'e-Waikapd. Maui County Charter §
3-1 (2003), available at hetp://wne.co.maul.hi,us/ index. aepx?nidel62
2 he qualifications for County Council menbers are set forth in
Maui County Charter, § 3-3
Section 3-3 qualifications. To be eligible for
election er appointment te the council. = person mist
be a citizen of the United Staten, a voter in the
coutty, a resident of the county for a period of
ninety’ (90) days next preceding the filing of
Roninacion papers and at the tine of filing of
Rosination papers a resident in the area from which
Che person seeks to be elected. Tf a council mesber
ceases to be a resident of the county, or ceases to be
a resident of the council member's reaidency ai
Guring the council menber's term of office, or 1
Gounei! mesber is adjudicated guilty of a felony, the
‘council menber shall innediately forfeit office ana
the seat shall thereupon become vacant.
» ams § 22-3 (Supp. 2005) Nomination paper format) Limitations.
(a) No candidate's nane shali be printed upon any official ballot to be used
at any prinary. special primary, cf special election uniess a nomination paper
was filed in the candidate's behalf and in the nane by which the candidate ts
-FOR PUBLICATION IN MEST’S EAWAT'T REPORTS AND PACIFIC REPORTER:
receive any challenges to Kaho'ohalahala’s nomination papere
prior to the September 20, 2008 primary.‘ Kaho'ohalahala voted
in the primary as a tana'l resident, and finished first among the
five candidates who ran for the Lana‘ seat. He and the
candidate receiving the second highest number of votes, John
ornellas, advanced to the November 4, 2008 general election.
on September 23, 2008, Hiraga received two letters from
Lana'i City residents. ‘The letters were identical in form, and
stated as follows:
re ie my understanding that you are responsible for
investigating complaints made regarding elections. in
Maul county, Hawaii "in the 2008 primary election for
the Maui County Couscii[,] Sol P. Kaho‘ohalahala
Fopresented hineelf as a resident of Lanai. Although
hie father resides here and he establiched = fost
Office Box in order to receive sail, it is widely
believed that he actually resides with his wife on
cormonly known. The nomination paper shall be in a form prescribed and
provided by the chief election officer containing substantially the following
infornstion:
ia) “the residence address and county in which the candidate resides:
‘ei “n'sworn certification by self-subscribing oath by the candidate
that the candidate qualifies under the law for che office the candidate ie
Seeking and that the candLdate has determined that, except for the information
brovided by the registered voters signing the nomination papers, all of she
Tnormation on the nomination pepers ie true and correct («]
‘uns 5 12-8 (supp. 1999) Momination papers) challenges evidentiary
hearings and decisions. (2) All nomination papers filed in conformity sith
Section 12-3 shall be deoned valid unless objection is made thereto by &
Fegistered voter, an officer of a political party whose name is on file with
the chief election officer, the chief election officer, or the county clerk in
the cae of a county office. All objections shall be filed in writing not
later than 4:30 p.m. on the thirtieth day or the next earliest working Gay
prior to the primary or special election
‘*8POR PUBLICATION In WEST'S HAWAI'T REPORTS AND FACIPIC REPORTER***
Would you please investigate hia claim to residency
here? “Many residents of this island would like to
know what the criteria (arel for establishing
Fesidency. I would like to know how to proceed to
file a claim that Mir, fahoshalahais falsified
Gocunents filed with his signature to run for the
office of Maui County Council, tana't Seat.
one of the writers added a handwritten note at the
bottom which stated, “In the nine yrs. I’ve lived here T have
never seen Sol at the gas station, stores, Bank or Post Office!
‘This is a small island; where is he?”
on September 24, 2008, Hiraga wrote to Kaho'ohalahala
as follows:
The Office of the County Clerk, County of Maui,
has received two written challenges to your voter
registration, pursuant to Section 11-25 (1993), Hawaii
Revised Statutes. *] The challenge alleges that you
© ng § 11-25 Challenge by voters; grounds; procedure. (a)
Challenging prior to election day. Any registered voter my challenge the
right of a person to be or to renain registered as a voter in any precinct for
any cause not previously decided by the board of registration or the supreme
court in respect to the sane person; provided that in an election of meubers
Of the board of trustees of the office of Havaitan affairs the voter making
the challenge must be registered to vote in that election. The challenge
shall be in writing, setting forth the grounds upon which it is based, and be
‘Signed by the persoh making the challenge. ‘The challenge ahali be delivered
to the clerk who shall forthwith serve novice thereat on the person
challenged. The clerk shall, as soon as possible, investigate and rule on the
challenge.
(b) Challenging on election day. Any voter rightfully in the polling
place may challenge the right to vote of any person who cones to the precinct
bfticials for voting purposes. The challenge shall be on the grounds that che
Voter is not the person the voter alleges to be, or that the voter 18 not
eatitied to vote in that precinct; provides that only in an electicn of
menbers of the board of trustees of the office of Hawaiian affairs, a person
Fegistered to vote in that election may also challenge on the grounds that the
voter is not Hawaiian. Wo other or further challenge shall be allowed. Any
person thus challenged shall first be given the opportunity to make the
Felevant correction pursuant to section 11-21. The challenge shall be
Considered and decided immediately by the precinct officials and the ruling
soall be announced
(G)" Tf neither the challenger nor the challenged voter shall appeal che
ruling of the Clerk or the precinct officials, then the voter shall either be
-s-
JOR PUBLICATION IN WEST“S HAWAI'I REPORTS AND PACIFIC REPORTER***
do not reside on the Isiand of Lanai
‘you are hereby informed that our office will
conduct an investigation as soon as possible and will
Subsequently issue a ruling on the challenge. As part
Of oar investigation, we Fequest that you respond to
the challenge allegation, i-e., that you do not reside
at {] Prager Avenue.[*) Please send your response to
Our Office no later than October 3, 2008.
Kaho'ohalahala responded on October 3, 2008. He
submitted an affidavit dated october 2, 2008, in which he stated
that “I am a resident of Lanai City,” that *(mly residence is
fixed at [] Fraser Avenue, Lana‘i City and whenever I am absent
from the island of Lana'i, I intend to return{,]* and that at the
time of "fixing my residence in Lana‘i City, it was with the
intention of making it my permanent dwelling place."
Kaho'chalahala also stated that his family has continuously lived
on Lana‘i throughout his life, that he had “filed an affidavit of
voter registration with the belief and understanding that [he is]
a legal resident of Lana'i because of [his] permanent residence
at [) Fraser Avenue[,]* and that he had filed nomination papers
and voted in the primary ‘with the belief and understanding” that
he was a legal resident of Lana'i
allowed to vote or be prevented from voting in accordance with the ruling. If
fan appeal is taken to the board of registration, the challenged voter shail be
Allowed to vote; provided that ballot is placed in a sealed envelope to be
later counted or rejected in accordance with the ruling on appeal. The chief
election officer shall adopt rules in accordance with chapter 91 to safeguard
the secrecy of the challenged voter's ballot.
«We have deleted residential street numbers for purpos
opinion.
of thie
-FOR PUBLICATION IM WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
Kaho'ohalahala also submitted an affidavit by his
brother, Gaylien Kaho'ohalahala, in which Gaylien stated that
Gaylien was a resident of Lana'i City and *[iJn the beginning of
July, 2008, (Kaho'chalahala] telephoned me and discussed with the
family his intention of returning to Lana‘ to live." Gaylien
further stated that ‘{wle welcomed (Kaho'ohalahala’s] return home
and he presently resides at {] Fraser Avenue and resided there
since the beginning of July, 2008."
Kaho'ohalahala also submitted a response arguing that
the letters were not challenges to his voter registration status
under HRS § 11-25, but were challenges to his nomination papers
under HRS § 12-8. Kaho'ohalahala noted that HRS § 12-8 required
objections to have been made to his nomination papers, which
included @ sworn statement declaring his residency, no later than
thirty days prior to the September 20, 2008 primary election,
that no timely objections were made, and that his nomination
papers were therefore presumptively valid. Kaho'ohalahala argued
that the complaints were underhanded attempts] to circumvent
the legal requirements for proper objections to nomination papers
and challenges to election results.” Additionally,
Kaho'chalahala argued that the complaints constituted a challenge
"FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER’
to an election pursuant to HRS § 11-172 (1993),” and that the
office of the County Clerk of Maui did not have jurisdiction te
hear such a challenge. He requested that Hiraga dismiss the
September 23, 2008 complaint letters as untimely challenges to
his nomination papers and for lack of jurisdiction to decide
election contest complaints.
Meanwhile, between September 24, 2008 and October 3,
2008, Hiraga received ten additional letters from Lana't
residents. Six letters were identical to the September 23, 2008
letters. The content of the other letters varied. one resident
submitted a letter alleging that Kaho'ohalahala falsified his
residence on his filing papers, that Kaho'chalahala’s siblings
resided at {] Fraser Avenue in Lana'i, and that Kaho'shalahala
actually resided in Lahaina, Maui. This resident requested that
Hiraga disqualify *Kaho'ohalahala(’s) results from the
(September’20, 2008 primary][,]* “exclude him from the General
Election{,]* and "restore Alberta de Jetley's eligibility in the
RS § 11-172 Conteate for cause; generally. ith respect to any
election, any candidate, or qualified political party directly interested, oF
any thirty voters of any election district, may file a complaint in the
Soprane cture. ‘The complaint shall set forth any cause or causes, such as but
Rot limited to, provable fraud, overages, oF underages, that could cause a
Bitterence in the election results. he complaint shail also set forth any
Yessons for reversing, correcting, or changing the decisions of the precinct
Officials or the officials at a counting center in an election using the
Clectronie voting system. A copy of the complaint shal! be delivered to the
Chief election officer of the clerk in the case of county elections.
‘tevoR PUBLICATION IN WEST'S EAWAT'T REPORTS AND PACIPIC REPORTER***
General Election.*
Alberta de Jetiey, an unsuccessful candidate in the
primary election, submitted a complaint letter alleging that
Kaho'chalahala’s “statement to the Maui News about maintaining
his residency on Lanai while working for the Kahoolawe Commission
is false." De Jetiey requested that Hiraga ‘investigate this
matter so [that] we, the registered voters of Lanai, can move on
and elect soneone who is truly a resident of this island to
represent us.*
Dupree submitted a complaint letter alleging that
although Kaho'ohalahala was from Lana‘i, he did not own a hone,
manage a business, work on, or farm on, Lanai, that he had not
campaigned or held rallies there, and that he had not been seen
by local residents on the island. Dupree stated that
Kaho‘chalahala won the primary based on “off island voting
patterns[,]* but that residents of Lana‘i preferred several other
candidates for the Lana‘i seat, as they ‘are all local residents,
and they are in touch with the pulse of tanai[.]* Dupree
requested “that off
islanders give (Lana'i residents) the right
and opportunity to govern [them]selves[.]" Dupree stated that
although Kaho‘ohalahala was a "fine candidat
* he should “run in
the district that he currently resides in and give a current
Lanai resident the opportunity to represent their home island[.]*
{POR PUBLICATION IN MEST’S HAWAI'T REPORTS AND PACIFIC REPORTER’
Another resident submitted a letter “challenging
(Kaho'chalahala‘s] running for County Council on behalf of the
island of Lanai, or being voted into that office in the general
election on Novenber 4, 2008, based on the question of [his]
permanent/legal residency on Lanai.* This resident cited to the
Maui County Charter and statements Kaho'ohalahala made to the
Maui News. ‘This resident asked if Kaho'ohalahala paid mortgage,
rent, utility bills or property taxes in Lana'i, and further
inquired as follows:
(2) What address did [Kaho‘ohalahala) use on his
Voter's Registration form; and, where is his
polling address?
(2) here did [Kaho‘ohalahala) vote on Septenber 20,
2008 in the primary?” Lahaina or anal?
‘his resident requested that Hiraga “investigate Mr
Kaho'ohalahala’s right to file nomination papers to run for
County Council to represent the island of Lanai, based on his
questionable residency in Lanai,* and further requested that it
Kaho'chalakala was found in violation of the residency
requirenent of the Maui County Charter, that Hiraga ‘remove Mr.
Kaho'chalahala’s name from the November 4, 2008 general election
ballot; or, if the ballots have already been printed, then any
votes he may receive NOT be allowed to be counted.”
Hiraga’s ruling on complaints
on October 10, 2008, Hiraga issued a ruling on the
n10-
'FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
twelve complaint letters. Hiraga treated the complaints
collectively, stating that *[glenerally, the writers of the
Complaint Letters allege that (Kaho'ohalahala} does not reside in
the Lanai residency area.“ The ruling stated in relevant part as
follows:
‘The Complaint Letters challenge mr
Kaho'chalahala’s residency based upon tyo separate
seacutary grounds, namely, [MRS § 12-8) and (MRS § 11
25).
Go'the extent that the Complaint Letters
constitute a challenge to Mr. Kaho'chalahala’s
Sandidacy pursuant to the provisions of [HRS § 12-8]
the challenge is untimely.” Section 12-8 clearly
provides that *All objections shall be filed in
Writing not later than 4:30 p.m. on the thirtieth day
OF the next earliest working day prior to the primary
oF special election."” The earliest date of receip: of
@ Challenge Letter by the Clerk's Office was Monday
[sic], Septenber 23, 2008, two days after the Primary
Election was conducted on Saturday, Seprenber 20,
‘The ruling went on to quote HRS § 11-13 (1993),* and
* wns § 12-19 Rules for determining residency. For the purpose of
this title, there can be only one residence fer an individual, but in
determining residency, a perton my treat oneself separate from the person‘s
spouse. Tie following rules shall determine residency for election purposes
only:
(2) the residence of a person Le that place in which the
person's habitation is fixed, and to which, whenever the
person is absent, the person has the intention to return;
(2) Riperson does not gein residence in any precsnct ints which
the person cones without the present intention of
establishing the person's permanent dreliing place within
Such precinet
(3) Tf-a person resides with the person's family in one place,
and deer business in another, the former is the person's
Place of residence; but any Gerson having a fanily, who
Establishes the person's dveiling place other than with the
person's fanily, with the intention of renaining there shall
Ee considered a resident where the person has established
Such dwelling place;
(4) The mere intention to acquire a new residence without
o1l-
+POR PUBLICATION IM WEST'S HANAI'T REPORTS AND PACIFIC REPORTER***
then concluded as follows:
Hight of the twelve Complaint Letters state,
+... eis widely believed thet’ [Me Kaho'chalahala]
actually resides with bis wife on Maui.” Assuming,
for the purpose of argurent, that this widely held
belief ie true, {HRS § 11-13) conterplates that a
person may have a residence separate and apart fron
fis or her spouse when it states as follows: "For the
purpove of this Eitie, there can be only one residence
for an individual, mut in detersining residency. a
Dereon may treat Sneself separate from the pereon’s
Spouse.
ie. Kaho‘ohalahala admits that he resided on
Maui when he was director of the Kahoolave island
Reserve Consission. However, [aRS § 11-13(5)) states
fas follows: *(5) A person dogs not gain or lowe a
Sesidency solely by season of the person's presence oF
abeence while employed in the service of the United
States or of this State, or while a student of an
{netitueion of learning, or while kept in an)
institution oy asylum, or whtle confined in prison{.)*
Therefore, Mr. Fahcohalahaia did not lose his
Fesidency die’ to his absence from Lanai vhile be was
erployed in service of the state
‘Que Complaint Letter alleges that “The [] Fraser
Ave. address is the hone of his father. iis siblings,
T believe, are listed on the deed of the hone. His
Fesidence for approxinately the last 10 years has been
(] Planing Road, Lahaina, HI.
‘The language of [HRS §°11-13(2), (2) & (4))
nakes it abundantly clear that physical presence or
absence from a particular place is not the deciding
physical presence at such place, does not establish
Fesldency, neither does here physical presence without the
Concurrent present intention to establish such place as the
person's repidence:
(5) _Riperson dees not gain or lose a residence solely by reason
of the person's presence or absence while employed in the
Service of the United States or of this state, or while a
Student of an institution of learning, or while kept in an
Gnetieution or asylum, or while confined ina prisons
(6) No menber of the armed forces of the United States, the
Penber's spouse or che mesber‘s dependent is a resident of
this stave solely by reason of being stationed in the Seater
(7) Aperson loses the person's residence in this state if the
Derson votes in an election held in another state by.
absentee ballot or in person.
In case of question, final determination of residence shall be made by
the clerk, subject to appeal co the board of registration under part 117
of this chapter,
-12-
‘s*47OR PUBLICATION I WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*"
factor in determining the residence of an individual
Stnder section 11-15, one's gtate of mind Seternines
one's place of residence." Atey. Gen: Op. 86-10.
(Baphasis added!
‘The Key to deciphering Mr. Kaho'chalahala’s
state of mind is found in his sworn affidavit. In ie,
he states
ie
3.” My residence is fixed at {] Fraser Avene,
Eana'i City, and whenever 1 an absent trom
che ieiand of tana, 1 intend to return
3. T'was born and raised on the island of
tana'i and retained ny residence on Lana'i
except for a brief period in which Iwas
In the service of the State of Hawai'l
with the Rahoolawe Taland Reserve
Commission
4. AE the time of fixing my residence in
Tasa'l city, ie vas with the invention of
making it my permanent dwelling place
tC)
(emphasis added.)
it is clear from the quoted portions of his
eworn affidavit that Mr. Kaho‘ohalehala intends to
Teside on the ieland of Lanal
‘The Office of the County Clerk, County of Maui,
has conducted an examination of Mr. Keho'ohalahala’
voter registration history and confirms that, with the
exception of the period from July 2006 to duly 2008,
Mr. Kaho'ohalahala’s residence address of record has
always been on Lanai
Pursuant co [MRS §§ 11-13 & -25), and based upon
the foregoing discussion, to the extent that the
Complaint Letters constitute 4 challenge to Me.
Kaho'chalahala’s right to renain a registered voter in
(Lanai) District/Precinet 13/07, the challenge se not
sustained
(Emphases in original; footnotes omitted)
Hiraga notified all of the complainants of his
decision, and of their right to appeal his decision to the Board
of Registration pursuant to HRS § 11-26 (1993).
C. Dupree appeals to the Board of Registration and the Board
overrules Hiraga’s decision
-13-
FOR PUBLICATION IN WEST’S HANAI'T REFORTS AND PACIFIC REPORTER"
Dupree, proceeding pro se, sent an appeal letter dated
october 16, 2008 to the Board of Registration. Dupree stated
that he was challenging Hiraga’s decision *not to sustain the
challenge as to the true residency of (Kaho'ohalahalal{,J* and
argued in relevant part as follows:
while T would agree that according to Hawaii
Revised statutes that the challenges were received on
fan untimely basis, it doean’t change the truth and
vanidity of this challenge. Te doesn't change the
fact that Sol Kaho'ohalhala and hie brother Gaylien,
ay both have given false statements in their sworn
affidavits. T would argue that in this specific
Situation an exception should be granted and further
Consideration be given to this challenge.
i live’at [) tana street, 2 fev blocks from (J
Peaster [sic] Avenue, where Soi claims that he lives:
[have passed by that house almost one thousand times
Zines duly 2008, ten tines a day for over one hundred
ays, ‘when Sel supposedly returned here
according to he and his brother's svorn affidavit, T
have not seen hin once. Not once in a hundred days oF
2 thousand passes. i'm not surprised that Sol would
Gistort the truth but Gaylien too? I haven't seen Sol
on Lanas once this year, although 1 an not saying he
hasn't visited, T'm saying he doesn’t Live her
Ravea'e seen hin onee at the poet office, efther bank,
not at any Lanai store, nor the gas station, nor any
Festaurant. T haven't seen him walking, driving a
far, riding a bike, surfing or paddling a canoe. He
Sertainly ie not commuting to Maul. Four times a week
Ttake the only road down to Expeditions Ferry Service
at Manele Harbor and pass everyone who is going 0
Saul, 1 vee ali the Lanat faces commuting on the
Hirst boat to Yaul at 8:00 A¥, and again 1 have not
een his face once in the last three months aince he
hoved here as he swore before a notary public.” He
Goes not commute from Lenai to tahaina and then to
Kahului; that would be inpractical- ‘The Harbor Master
Of anai, Sheri Menze, alto sent a letter challenging
Soi's reaidency because she doesn't see Alm either
Ee he invisible, are we Blind, or are he and his
Brother not teliing the ruth?
i ask that you please uphold the challenge to
Sol Kaho'chalahala{'s] true residency and help the
Fesidents of Lanai co take a step forward and not
Allow this dishonest man to represent our island on
n14-
POR PUBLICATION IM WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
the Maul County Counc!, Ke misrepresent (ed) himself
on hie voter registration, his aomination papers. and
his avorn affidavit. Please renove him from the
ballot and replace hin with a true Lanai resident.
Kaho'ohalahala then filed a Motion to Dismiss for Lack
of Jurisdiction. He argued that because there were no timely
objections to his nomination papers, which included a declaration
of his legal residency and registered voter status, his
nomination papers were presumptively valid. Kaho‘ohalahala
argued that this was an election contest within the meaning of
HRS § 11-172, which is within the exclusive jurisdiction of the
Hawai'i Supreme Court.
On October 21, 2008, Kaho'chalahala also filed a
Petition for Writ of Mandamus (petition) with this court, which
named Hiraga as the respondent. In his petition, Kaho'ohalahala
similarly argued that none of the complaints challenged his voter
registration, that his nomination papers were presumptively valid
as there had been no timely objections, and that the complaint
was an election contest within the meaning of HRS § 11-172
Kaho‘ohalahala requested that this court vacate Hiraga’s
October 10, 2008 ruling and dismiss the underlying action because
it constituted an election contest, which Hiraga did not have the
jurisdiction to decide.
Kaho'ohalahala also filed with the Board a Motion for
Stay of Proceedings pending disposition of his petition, and a
n15-
‘*#POR PUBLICATION IM WEST’S HAWAI'T REPORTS AND PACIFIC REPORTER
Motion in Limine to Exclude Accepting Testimony trom Witnesses by
‘Telephone or Video. A hearing on Kaho'ohalahala’s motions was
held on October 27, 2008. At the hearing, Dupree argued at one
point that ‘the fundamental reason that we are here is because
one clause in the Maui County charter . . . says that one
of the menbers of the Maui County Council must be a resident of
Lanai(,]* but later argued that ‘although in my original
challenge I didn’t list the word voter registration I didn’t list
the word nomination paper either but the thrust of the argument
was that (Kaho'chalahala] is not a resident{.J* After the
hearing, the Board denied Kaho'ohalahala’s motion to stay, motion
to dismiss, and motion in limine to exclude testimony given by
telephone or video. ‘The Board issued an order dated October 28,
2008, denying the three motions, concluding in relevant part as
follows:
EINDNGS oF Fac.
2." " he county Clerk's october 10, 2008 ruling
from which wr. Dupree bas appealed to thia poard
determined that the County Clerk does not have
Jurisdiction to determine Mr. Kaho'chalanala’s
Gandidacy pursuant to (Wes) § 12-8
3.) “the County Clerk's Octéber 10, 2008 ruling
construed Nr. Dupree's challenge to be a challenge by
a registered voter under IRS § 11-25, challenging the
fight of Mr. Kaho‘ohalahala to be a registered voter
inthe precinet that includes Lanai
42" Mr. Dupree’s appeal of the County Clerk's
fuling wae filed on detaber 16, 2008 and challenged
the application of the rules for determining residency
that Were applied by the County Clerk
CONCLUSIONS OF LAW
-16-
‘*+POR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER*
2. The Board of Registration for the County
of Maui has jurisdiction over the parties herein
hae primary jurisdiction of the subject matter of
appeal, which is a challenge by a registered voter
Under #RS 5 11-25, challenging che right of Mr:
Kaho'ohalahala to be a registered voter in the
precinct that. includes Lanai
3. Me. Dupree hau standing to being this
appeal of the County Clerk Roy #iraga’s determination
Fegarding the voter registration status of Solomon
Kano'ohalakala.
on October 30, 2008, this court denied Kaho'ohalahala’s
petition for writ of mandamus, holding in relevant part as
follows:
Upon consideration of the petition for a writ of
mandamss filed by petitioner Solomon P. Kahoohalahala
and the papers in Support, it appears that
Fespondent's October 10, 2008 ruling aid not decide
whether petitioner was nominated or elected as a
Candidate in the September 20, 2008 primary election,
but decided only that the challenges to petitioner's
nomination papers were untimely and that petitioner ie
@ registered voter on Lanai. The October 10, 2008
Fullng was not tantamount to a judgeent in 3 primary
Slection contest given pursuant to MRS § 11-173.5(b]
(1993), but was a ruling only on a challenge co
nomination papers and on a person's voter registration
Statue, Jurtediction to render such ruling wae with
Fespondent pursuant to MRS §§ 12-8(b) (1993) and
in=38 ta) (1393),
Kaho'chalahala v. Hiraca, No, 29415, 2008 WL 4769470, at *1 (Haw.
oct. 30, 2008)
A hearing was held on Dupree’s appeal on October 31,
2008. Board chair John Henry characterized Dupree’s appeal as a
“challenge to [] Kaho'chalahala’s right to remain a registered
-a7-
‘sseFOR PUBLICATION IN MEST’S HAVA'T REPORTS AND PACIFIC REFORTERY*®
voter on Lanai* pursuant to HRS §§ 11-13 and 11-25.” Dupree
initially presented his appeal as a “challenge of voter
registration(,]* but also argued that Kaho'ohalahala registered
to vote on Lana'i so that he could “file his nomination papers
for candidacy.* Counsel for Kaho'ohalahala objected that the
Board ‘has already determined that it’s not hearing questions
related to candidacy[,]* and that any evidence “along those lines
( is irrelevant and immaterial[.]* The Board sustained the
objection. Counsel for Hiraga joined in the objection,
additionally noting that ‘this Board does not have jurisdiction
to consider such matters." The Board agreed, and asked Dupree to
“keep it to his voter registration.*
Dupree argued that Kaho'chalahala’s residence was fixed
in Lahaina, and that Lahaina is where Kaho'ohalahala intends to
return to whenever he is away. Dupree argued that although
Kaho'chalahala registered to vote in Lana'i in July of 2008, he
lacked the present intention and corresponding physical presence
necessary to be a Lana'i resident
When asked if he had any personal knowledge about where
Kaho'ohalahala sleeps at night or resides, Dupree testified that
> estten transeripte of the October 27 and 31, 2008 hearings are
part of the Fecord on appeal, The record does not Indicate who prepared the
Erangeripts. Although Hiraga identifies two passages that he asserss were
inaccurately transcribed, all parties cite to the transcripts in their briefs
and do not otherwise dispute thelr sccuracy or authenticity.
n18-
‘s+4ron PUBLICATION I WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
he Ykn{elw [that Kaho'chalahala] was on the island [of Léna'i]
last weekend because . . . he showed up at the Aloha Festival and
stayed overnight a couple of nights{.]* Dupree also testified
that he had heard that Kaho'chalahala was at a political rally
just before the primary.
Dupree then called Ron McComber to testify." McComber
testified in part as follows:
(Mocomber}: I've Lived on lanai for thirty aine years,
I've known (Kaho'ohalahalal for those thirty nine
years, sometines he lived om cheve and sometines sh
he dogsnt. what I'm saying is now for the, the past
probably ten yeara he has not physically lived on
Tanai, that's, that’s addressing the, the problen of
him tiving on’ tanai, he has fot Lived there
(Dupree}: and ah as of July (2008) has he returned to
the isiand to Live en the ‘#land.
Wecomber]: For
[Dupree] + Ac far"as your understanding
WeConber]+ Av far ao I know, he's cone back one tine
since that time and it was for chat rally, and he has
ot Lived on Lana’
[Dupree]: tm, and 20, you're (sic} detection is that
he's not an actual resident of the island?
DlcConber]: That is my understanding, 7 Live there,
and it’s avery small island, not very many things go
On Lanai that people don’t know, and the population of
the island is very rare (sic] of who cones and who
Goes, who lives, ho ian't.. t's kind of a, a melting
pot and there 5 no ingication that I cen find
anyshere from anybody chat [Kaho'obalabelal has moved
Back thee and lived there for the last, at least, cen
years.
A Board member then asked McComber if, since July of
2008 when Kaho‘ohalahala registered to vote on Lanai, McComber
had seen “any signs that [] he had established . . . any material
“fon MoConber's name is spelled in several different ways in the
transcript and the briefs, For the purposes of this opinion, we adopt the
fag used by the Board in its Wovenner 1, 2008 decision.
-19-
“FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIPIC REPORTER:
goods there, a car, or moving van, anything along that line[.]*
McComber testified that he had ‘not seen [Kaho'chalahala) cone
back over there, and move in, move clothes in, bring a car over
there. wis brother picks him up at the dock and, and drives
around, he does not have a car that I know of over there.*
counsel for Kaho'ohalabala then moved for a directed
order or decision that Dupree “has not by preponderance of
evidence presented sufficient () evidence to support [the]
overturning of mr. Hiraga’s [decision] [,]" and deputy corporation
counsel joined in that motion. The Board denied the notion, and
corporation counsel called Hiraga to testify.
Hixaga testified that subsequent to receiving the
complaint letters alleging that Kaho'ohalahala was not a Lana‘i
resident, he conducted an investigation which included
researching Kaho'ohalahala’s voter registration history. Hiraga
testified that Kaho'ohalahala’s voter registration records dated
back to 1982, and that Kaho'ohalahala had been continuously
registered to vote on Lana‘i with the exception of the period
from July 2006 to July 2003. He also testified that it was his
understanding that during those two years, Kaho'chalahala was
employed by the State of Hawai'i
-20-
‘st+70n PUBLICATION It WEST'S HAMNAI'I REPORTS AND PACIFIC REPORTER*”
Ellen Pelesaro” then testified for Kaho'ohalahala. she
testified that she had known Kaho'chalahala since 1991, and that
Kaho'chalahala’s family had been on Lana'l for seven generations.
Pelesaro testified that Kaho'chalahala had an ‘immense love
affair with (the island of Lana't],* and that *he cane right back
from college and went to work there and began to do community
service on that island that led ultimately to his running for
office." she testified that Kaho'ohalahala had held a nunber of
elective offices requiring Lanai residency. He had previously
held the Lana‘i seat on the Maui County Council, was on a
citizen's advisory committee, was a state representative, and was
the Lana'i representative to the Hawaiian Sovereignty Comission.
Pelesaro stated that when Kaho'chalahala previously represented
Lana'i on the Maui County Council, he commited to and from work
on Maui because he received an allowance for that purpose.
Pelesaro testified that Kaho'chalahala had recently
served as Executive Director of the Kaho'olawe Island Reserve
Commission, and that he was currently employed by the state as an
instructor at Maui Community College (McC). She testified that
he resided’ with his wife at an address on Fleming Road in Lahaina
while employed at the Commission and MCC because “they've got no
8 there are different spellings of her nane in the record. For
purposes of this opinion, we adopt the spelling used by the Board.
w21-
‘s++POR PUBLICATION IN WEST'S HAWAT'T REFORES AND PACIPIC REPORTER***
appointment for him to conmute.* During a break between his
employment with the Commission and MCC, Kaho'ohalahala was on
Lana'i ‘for awhile* as well, helping to care for family menbers.
Pelesaro testified that Kaho'ohalahala’s wife was the Vice
Principal at Lahainaluna School, and Pelesaro did not know if she
joined him on Lana'i during that period.
Pelesaro stated that “(Kaho'chalahala] and his wife had
talked as long as [she had] known them, about remaining on Lanai
for the rest of their lives, their children are there, their
grandchildren are there, it was work related why he had to
physically not be there all the time.” she also testified that
she knew Kaho'ohalahala to be truthful, and that she did not
believe he would lie under oath.
The Board asked for the opportunity to ask
Kaho'ohalahala sone “questions for clarification,* but his
counsel objected and the Board responded that it would ‘not yield
to ask him questionst.]"
The Board entered the following decision dated
November 1, 2008, sustaining Dupree's appeal and overruling
Hiraga’s October 10, 2008 decision:
the decision 1s dated Novenber 2, 2008, but there is no indication
in the record of when it was served. However, Hiraga states in his opening
brief, and the other parties do not dispute, that they were served on
November 12,2008
-22-
"FOR PUBLICATION IM WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER**
‘CONCLUSIONS OF LAW AND DEcuszox
‘EMNDINGS oF pact
‘Mc, Dupree’s Complaint to the County Clerk
2. tar. Kaho'ohalahala is a candidate for the
Maul county Coune!l for the seat designated for the
Fesident of the Zeland of tans! for the 2008 general
election
3°’ ay leteer received september 29, 2008, Mr.
Phoenix Dupree, also known as Michael Phoenix Dupree,
Also known as Phoenix, a registered voter of the stave
GE Hawai'i, filed a challenge to Mr. Keho'chalahala’s
Fight to be or to remain registered as a voter of the
Eanal Distriet/Precinet 13/07
4." Mr. Dupree contends that while Mr.
Kaho'chalahala is from Lane! and has family on Lane’,
he is in face not @ resident of Lana't
Sr" Baged primarily on Mr. Kaho'ohalahala’s
stated intention of establiahing his residence in
Tana't city, with the intention of making 4¢ his
permanent veiling place, the County Clerk concluded
that “with the exception of the period from July 2006
to July 2008, Mr- xaho'ohalahala’s residence adaress
of record has always been on Lanai." accordingly,
the County Clerk detersined that Mr. Dupree'®
challenge was not sustained.
3. By letter dated October 16,2008,
Me. Dupzee appeals the County Clerk's decision that
Solomon P. Kaho'ohalahala is a registered voter in
(Lana's) District /Precinet 13/07.
7." Up until July 10, 2006, Mr. xabo'ohalahala
resided at [] Akolu Place, Lana't City, tana'l, Hawai't
56069.
8. on or about July 10, 2006, mr.
Kaho'chalahala changed his residence from Lana'i co ()
Flesing Road,’ cahaina, Maull1
‘On er about July 15, 2008, me.
Kaho'chalaals changed hie tesidense tot) Fraser
avenue, anal city, “here his brother and his
Brother's family reaiae.
for “Mr. Eaholchalahala ie employed by the
Research Corporation of the University If Hawai as
dn Instructor/facilitator et Maul Community College,
at ite campus in Wai luks, Maui (.]
tl, Mr. Kehoohalahala is married to Lynn
Kaho'chalabala, who is a vice principal at Lahainalus
High School, in Lahaina, Maul.)
12.” ‘while originally from tana‘i, and while
hi brother continues co live on Lanal, Mr
Kaho'chalahala does not own or work fora business on
Usna'i, nor does he own or rent a house or keep a car
i
23+
YOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER***
13. Mr, Dupree ha Lived on tana'i since 199
and 1s cirrentiy employed 25 the general manager of
the Blue Ginger café. We presented Ron MeComber, a
Fesident of Lanai, a@ a witness who testified that he
has not seen Mir. Faho'ohalahala on cans’:
id. Since July 2008 when Mr Kaho'ohalahala
claims that he moved back to tans), ur. Dopree has
ot seen Mr. Kaholohalahala at the post office, either
bank, the Lana'i store, the gas station, or any
1S. ‘The Couity Clerk received letters from
eleven other Fesidente of Lana'i disputing Me
Kaho'ohalahala’e Lana't residency.
36." In support of bis claim of residency on
the {eland of Lana't, Me. Kabo'chalahala submiteed an
affidavit in which he states that he "was born and
Faised on the island of Lana'i and retained (nis!
Fesidence on Lana'l except for a brief period in which
he] was in the service of the State of Hawai'i with
the Kaho'olawe Island Reserve Comission.*!(")
Ui. ir. Kaho'ohalansla further states that his
fantiy hae conésnuously Lived on the Leland of tana’
throughout hie life and that it is ha understanding
that he is a legal resident of tana‘ because [] hic
persanent residence is, and was at the time he filed
Bie nomination papers, {] Fraser Avenue, Lana‘i city.
Te. Mr. Kabochalahela's brother, Gaylien,
also submitted an affidavit in which he staves shat
Me. Kabo'ohaiahaia talked with him ebout returning to
Eana'i to live and that tr. Kaho'ohalaala has resided
at {] Frazer {sic} Avenue since [the] beginning of
Suny, 2008.
19." Other than Mr. Kaho'ohalahala’s self
proclaimed intention, which was corroborated by he
Brother, and a witness testifying as to his veracity,
Ro evidence was presented regarding his abandoneent of
Bis residency in Lahaina and his permanent relocation
fo tana’!
The Board's decision included a footnote at this point, which
stated the following:
‘The County Clerk concluded that Mr. Kaho'shalahata
said not lose his residency due to bis absence from
Lanai while he was employed in the service of the
Stacer, however, Mr. Kahsohalabala legally changed
his residency ffom Lana't to Lahaina on July 10, 2006.
M re must be noted that the Board's findings made only a passing
reference to Pelesara, who was Kaho'ohalahala’e only witness at the
October 31, 2008 Board hearing. Also, although POF 3 susmarized Hiraga‘s
-24-
‘**POR PUBLICATION In WEST'S EAWAZ'T REPORTS AND FACIFIC REPORTER’
CONCLUSIONS OF LAW
3." " Appettant Michael P. Dupree has standing
to bring this appeal of County Clerk Roy T. Hiraga’e
decision regarding Mr. Dupree’s challenge to Solomon
P. Kaho'chalahala's residency for election purposes
bins} '§ 11-25 (“Any Togiatered voter may challenge the
right of a person to be or to remain registered as 3
voter in any precinct for any cause not previously
Gecided by the board of registratien or the supreme
court in respect to the sane person{.J")
4” “RGreuant’ to the Maul County Charter
Section 3-1, the Council shall be compesed of nine
nenbers elected at large, and ay it pertains to this
Case, one of whom shal! be a resident of the island of
Tana’s
Cetober 10, 2008 ruling, the Board did not discuss the details of Hiracs's
testinony in ite findings. see Auplication of Hawaii Elec. Licht Co. inc.
60 wa. 625, 641-42, 594 7.24 612, 623 [1979] ("The Toquirenent that the
[agency] set out findings of fact’ and conclusions of law is no mere technical
oF perfunctory matter. The purpose of the statutory requirement that the
agency set forth separately its findings of fact and conclusions of law is to
jure Feagoned deciaion making by the agency and enable judicial review of
agency decisions.) {citations omitted). In that regard, *"[aln agency's
findings mat be sufficient to allow the reviewing court to track the steps by
hich the agency reached ite decision.’ ‘Nakamura v. State, 98 Hawal't 263
276, 47 P.3d.730, 743 (2002) (Acoba, J., joines by Ramil, J., concurring in
part and dissenting in part) (quoting a
Goma, 7 Haw. App. 227, 250, 751 P-24 1031, 1034 (19941) orackate omictea)
Ke this court has stated:
‘The circumstance that the evidence is in the
transeript and that the court, by weighing it, can,
Getermine for itself "the facts" does not suffice.
‘The agency io the fact finder, and the undigested
transcript is not a substitute for a set of findings
of fact. Nor shoulda court be put inva position
wherein it is forced to ferret out the faces(.
- + 60 Haw. at 642, 594 P.2d at 623-24 (citation and
ellipsis omitted)
‘Thus, although che Soard’s ultimate decision was not clearly
‘erroneous for tho reasons set forth in section 1.8 infra, it ie important for
Sauinistrative agencies to be complete in thelr factual findings to encourage
Confidence in “reasoned decision Raking by the agency.* Nakamura, 98 Hawai's
av 276, 47 P.3d at 743 (Acoba, J, joined by Ramil, J., concurring in part and
Gissenting in part) (citation omitted); cf. Zaaua 2. Kea House Restauranc, 97
Mawal't 402, 412, 38 P.34570, 580. (200i) {acoba, J-> concurring in part and
Gissenting in part}. (*Pindings and conclueione by an administrative agency in
fa contested case must be reasonably clear to enable the parties and the court
foagcertain the basis of the agency's decision.")
325-
5. Pursuant to Maui County charter section 3-
3, to be eligible for election or sppoinement to the
council, a person mst be a citizen of the united
States, ‘a voter in the county, a resident of the
county for a period of ninety’ (30) days next preceding
the flting of"nonination papers and at the cime of the
filing of nomination papers, a resident in the area
from which the person’ seaks to be elected.
‘6. Pursuant to [HRS] § 11"13(1),, for election
purposes, Mr. Yaho'chalahala’s residence is that place
Tn'which his habitation is fixed, and to which,
whenever he is absent, he intends to return.
T° pursuant to [HRS] 6 11-1312), "Cal person
does not gain residency in any precinct into which the
Derson comes without the present Intention of
establishing the person's permanent dwelling place
within such precinee."
Pursuant ‘to (HRS) § 11-1313), *(4)E @
person resides with the person's family in one place,
find does business in another, the former te the
person's place of residence: but any person having a
Family, who establishes the person's dwelling place
other than with the person's family, with the
{ntention of remaining there shail be considered a
Fesident where the person haa established such
Guelling place.”
De purauane eo [HRS] § 12-13(4), *[eIhe mere
intention to acquire a new residence without physical
Presence at such place, does not establish residency,
either does mere physical presence without the
Concurrent present. intention to establish such place
a5 the persen’s residence.”
30. Pursuant to (HRS] § 11-13(5), *fa]_person
does not gain or lose a Fesidence solely by reason of
the person's presence or absence while employed in the
Service of the United States or of this state, or
While a student of an Snatitution of learning, or
While kept in an institution or aaylum, of while
Gontined ina prison."
Sr." § fational, sensible, and practicable
interpretation of a statute 18 preferred to one which
ig unressonable or impracticable, inasmuch as the
legislature is presuned not to intend an absurd
result, and legislation will be construed to avoid, if
possibie, inconsistency, contradiction, and
{Hogicaitty. organ V_ Planning Depavenent, county
of Kauai, 104 wawait 175, 66 p.2d 962 (2008)
12, In order to velinguish one’s domicile or
residence there mist be an invent to remain
persanently at the new place where one is physically
resent and to simultaneously abandon the previously
Permanent place of abode. Acquisition of the new
Gomiciie mist have been completed and the animus to
Fenain in the new location fixes, before the former
Gomiciie can be considered lost.” See kata v,.
-26-
"POR PUBLICATION IM WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
Bommel, 125 F.Supp. 6 1D. Hawai! 1954); Zoweld v.
Bowell, 40 Haw. 625" (2954); Anderson v. Anderson, 38
Maw. 261 (1940); Zumwale vi Zumale, 23 Haw. 376
(I3i6). Residence 18 not lost by ® temporary absence
nor by maintaining @ temporary home elsewhere. Hurley
okpdaen, 30 Haw. 887 (29291
3. The party initiating the proceeding shall
have the burden of proof, including the burden of
Producing evidence as weil ag the burden of persuasion
by a preponderance of the evidence. [HRS] § 91-10(51>
Tawai's Administrative Rules (HAR)) § 2-51-43 (3)
V4. Mr. Dupree, as the person initiating ‘the
proceeding, presented sufficient credible evidence co
Drove by a presonderance that Mr. Kaho‘ehalshala dia
Rot abandon his residence in tahaina, Maul... and
id not relocate his permanent residence to Lana'l
to
city, Lay
becrsrox
Based upon the foregoing findings of fact and
conclusions of law, the Board sustains Mr, Dupree’s
appeal of the County Clerk's October 10, 3008
determination and the County Clerk's deciaion’ te
hereby overruled. Por purposes of this 2008 election,
Mr. Kaho'ohalahale te @ resident of Lahaina, Maui(.)
Tn the event of an appeal of this decision, Me
Kaho'chalahale shall be allowed co vote “provided that
the bailot Le placed ins sealed envelope to be later
counted or rejected in accordance with the ruling on
appeal." Sea (HRS) § 12-25(6)
‘Three days after the issuance of the Board’s decision,
Kaho'ohalahala won the general election for the Lana'i seat on the
Maui County Council
Hiraga and Kaho'ohalahala both appealed to the
Intermediate Court of Appeals from the Board's November 1, 2008
decision. on June 10, 2009, Dupree applied for mandatory and
discretionary transfer of the appeal to this court. on July 1,
2009, this court granted the transfer on both grounds.
XI, ISSUES ON APPEAL
Kaho'chalahala raises the following issues on appeal
-27-
}POR PUBLICATION IN WEST’S HAMAI'T REFORTS AUD PACIFIC REPORTER’
1) “The Board lacked jurisdiction to hear and resolve
Dupree’s appeal because Dupree never challenged
kaho'ohalahala’s voter-registration status."
Specifically, Kaho’chalahala challenges Findings
of Fact (Fs0F) No. 3 and 4 and Conclusions of Law
(ce0L) No. 2 and 3 of the order denying his motion
to dismiss, and FOF No. 3 and CsOL No. 2-5 of the
Board’s November 1, 2008 decision.
2) “The Board erred in reversing the clerk’s ruling
because Dupree failed to adequately prove that
Kaho'ohalahala[’s] residence was uahaina, Maui.
Specifically, Kaho'ohalahala challenges FsOF No
5, 7, 8, 13, 14, 16 and 19 and Cs0L No. 4-6, 12,
and 14 of the Board's November 1, 2008 decision
Hixaga raises the following issues:
1) “The [Board] exceeded its statutory authority and
jurisdiction(.]* Hiraga argues that although the
Board has jurisdiction to determine voter
registration eligibility, "the (Board's) decision
improperly expanded the Board's jurisdiction co
rule on whether Kaho'ohalahaia’s candidacy for
County office met the criteria set out in the
County Charter” and it lacked juriediction to
determine residency “for election purposes."
Specifically, Hiraga challenges Fs0F No. 2 and
CsOL Nos. 3, 4, 5, and 6, and the “Decision”
section of the Board's November 1, 2008 decision.
2) “the (Board) erred in considering and relying on
immaterial and irrelevant criteria for
residency, ]* including the letters of citizen
complainants who did not appeal Hiraga’s opinion
or testify at the hearing on appeal," as well as
However, Hixaga failed to provide any argunent in his briet with
regard to whether it was appropriate for the Board to rely on the letters from
the other complainants, and accordingly this point is waived. Hawaii Rules
of Appellate Procedure (HRAP) Rule 28(b) (7) (+Pointe not argued may be deaned
waived."). In any event, although the Soard referred to the letters in FOF
No. 15, there 4a no indication that the Board relied on the Letters tn
Feachifg its decision. Moreover, HAR § 2-51-43(h) provides chat "rules of
evidence in HRS § 91-10 shall be applicable to appeals co the Boards of
Registration, and HRS § $1-10(1) provides, with some limitations, that ‘any
-28-
s++foR PUBLICATION IN MEST’S HAWAT'T REPORTS AND PACIFIC REPORTER***
whether Kaho'chalahala worked on Lana’, owned a
house or business there, kept a car there, or had
been seen by Dupree there. Specifically, Hiraga
challenges Fs0F 12, 13, 14, and 15.
3) CSOL No. 3, 4, 5, and 6 are erroneous because "the
[Board] lacked statutory authority and
jurisdiction to draw these legal conclusions." In
addition, COL No. 14 ‘does not accurately state
the law and is not supported by the evidence."
4) ~The [Board] erred in concluding that Dupree had
met his burden of proof[.]*
III, STANDARDS OF REVIEW
A. Adainistrative Agency Conclusions of Law and Findings of Fact
while the parties agree that findings of fact should be
reviewed for clear error and conclusions of law should be
reviewed uider the right/wrong standard, they disagree on the
standard applicable to the Board's ultimate determination that
Kaho'ohalahala was a resident of Lahaina rather than Lana'i
Kaho'chalahala states that findings of fact and conclusions of
law that present mixed questions of law and fact are reviewed
under the clearly erroneous standard. Hiraga states that the
principle issue in this case is whether he correctly interpreted
HRS § 11-13 that Kaho'chalahala was a Lana‘i resident, which is a
conclusion of law reviewable under the right /wrong standard.
Dupree states that the Board’s determination that Kaho‘ohalahala
oral or documentary evidence may be received.
-29-
'YOR PUBLICATION IN EST’S HAWAI'T REVORTS AND PACIFIC REPORTER*:
was not a Lana'l resident is entitled to *a presumption of
validity[,"] citing Keliipuleole v, wilson, 85 Haw. 217, 226, 941
P.2d 300, 309 (1997).
Tn Del Monte Fresh Produce (Hawaii), Inc. v, Int’)
Longshore & Warehouse Union, 112 Hawai'i 489, 146 P.34 1066
(2006), this court identified the applicable standard of review
as follows:
An agency's conclusions of law are reviewed de novo,
while an agency's factual findings are reviewed for clear
fact and law is reviewed under the clearly erroneous
‘Miandad -becouse the conclusion ia -deneodent upon the tacts
ing
As a general matter, a finding of fact or mixed
determination of lew and fact is clearly erroneous when (1)
the record lacks substantial evidence to support the finding
or determination, oF (2] despite substantia! evidence to
Support the finding of determination, the appellate court is
Jefe with the definite and firm conviction that a mistake
inne been made. Substantial evidence is credible evidence
which is of sufficient quality and probative value to enable
I person of reasonable caution to support @ conclusion
Ad. at 499, 146 P.3d at 1076 (emphasis added) (internal quotation
marks, citations, and brackets omitted); see Siexra Club v. Dep't
of Transp., 115 Hawai'i 299, 167 P.3d 292 (2007) (holding that in
general, an agency’s conclusion of law that presents mixed
questions of fact and law is reviewed under the clearly erroneous
standard, but questions concerning whether an agency has followed
Proper procedures or considered the appropriate factors in making
its determination are questions of law which are reviewed de
novo); Beroutka v. Cronin, 117 Hawai'i 323, 326, 329-30, 179 P.3d
=30-
‘*+POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER***
50, 1053, 1056-57 (2008) (holding that *(w]here both mixed
questions of fact and law are presented, deference will be given
to the agency’s expertise and experience in the particular field
and the court should not substitute its om judgment for that of
the agency(,]* and that the Chief Election Officer did not
clearly err in rejecting signatures on a petition for inclusion
on the presidential ballot (citation omitted))
B. gurisdiction
“the existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard.’ Captain
Andy's Sailing, I D
State of Hawai'i, 113 Hawai'i 194, 192, 150 P.34 833, @d1 (2006)
(internal quotation marks, brackets, and citation omitted).
©. Interpretation of a statute
Stnterpretation of a statute is a question of law which
we review de novo." Kikuchi v, Brown, 110 Hawai'i 204, 207, 130
P.3d 1069, 1072 (App. 2006) (internal quotation marks and
citation omitted).
XV. DISCUSSION
A. The Board had jurisdiction to consider Dupree’s appeal
o31-
‘s++POR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTERS**
1, Miraga had the authority to initiate an investigation
based on Dupree’s letter to him
Kaho'ohalahala argues that the Board did not have
jurisdiction to hear Dupree’s appeal because *{Dupree’s] initial
complaint to (Hiraga] did not challenge Kaho'ohalahala’s voter
registration{,]* but instead sought to “declare Kaho'halahala an
ineligible candidate." However, for the following reasons, we
conclude that Hiraga acted within the scope of his authority in
construing Dupree’s letter ae a challenge to Kaho'chalahala’s
right to vote as a Lina'i resident.
HRS §§ 11-25 and 12-8 impose two distinct
responsibilities on county clerks, First, under HRS § 12-8(a), a
voter may challenge a candidate’s nomination papers based on the
candidate's assertion of residency. See HRS § 12-8 (a voter may
file an objection to a candidate's nomination papers up to 30
days prior to the primary or special election day); MRS § 12-3
(Nomination paper: format; Limitations{}*) (a candidate's
nomination.papers must include the "residence address and county
in which the candidate resides"). Upon receipt of an objection
to nomination papers, the clerk has the authority to issue a
preliminary decision, and to file a complaint in the circuit
court if the clerk determines that disqualification may be
332
'YOR PUBLICATION IM WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
warranted.‘ HRS § 12-8(d) & (e).
Second, under HRS § 11-25, a registered voter may also
challenge ancther person's right to be or renain a registered
voter based on that person's assertion of residency. See HRS §
11-25(a) (noting that prior to election day, a voter may
challenge another person's right to be or renain a registered
voter “for any cause"); HRS § 11-15 (1993 & Supp. 1998)
(application to register*) (requiring a person seeking to
register to vote to submit an affidavit which includes a
declaration of that person's residence). upon receiving a
written challenge signed by the registered voter and “setting
forth the grounds upon which it is based," the clerk is required
Rs § 12-814) & (e) provider
(a) except for objections by an officer of a
political party filed directly with the eieuit court,
the chief election officer or the clerk in the case of
County offices shall have the necessary powers and
authority to reach a preliminary decision on the
nerits of the sbjection; provided that nathing in this
Subsection shall be construed to extend toe
Candidate right to an adniniserative contested case
hearing as defined in section 91-1(3) The chief
Glection officer or the clerk in the case of county
Offices hall render a preliminary decision not later
than five working days after the objection is filed.
(e) If the chief election officer or clerk in
the case of county offices determines that the
objection may warfant the disqualification of the
Sandidate, the chief election officer or clerk shall
file a complaint in the circuit court for a
determination of the objection; provided that such
complaint shall be filed with the clerk of the circuit
Gourt not later than 4:30 p.m. on the seventh working
Gay after the objection was filed
-33-
se+F0R PUBLICATEON IN WEST'S HAWAE'T REFORTS AND PACIFIC REFORTER***
to notify the person challenged and to “investigate and rule on
the challenge’ as soon as possible. HRS § 11-25(a).
Dupree’s letter to Hiraga alleged that although
Kaho'ohalahala was from Lana'l and had family there, he did not
Live there. Dupree alleged that Kaho'ohalahala did not own a
hone, own or manage a business, or work on Lana‘i. Dupree stated
that Kaho'ohalahala had not campaigned on Lana‘, and that he had
not been seen around the island shopping, going to the post
office, filling up his tank at the gas station, or driving on his
way to catch the commuter boat to Maul. In sum, Dupree’s letter
set forth a detailed factual basis in support of his contention
that Kaho'ohalahala was not a resident of Lana‘i.
As Kaho'ohalahala observes, Dupree’s letter focused on
Kaho'chalahala’s residency for the purpose of challenging his
eligibility as a candidate from Lanai, rather than his right to
vote on Lana'i. However, that does not mean that Hiraga was
required to ignore Dupree’s factual allegations insofar as they
cast doubt on the legitimacy of Kaho'chalahala’s voter
registration on Lana'i. To the contrary, Hiraga acted within the
scope of his authority when he construed the letter as a
challenge to Kaho‘chalahala’s right to vote as a Lana‘i resident,
and initiated an investigation on that basis, See Am, Newspaper
Publishers Ass'n v, NLRB, 193 F.2d 782, 900 (7th Cir. 1951) (in
ae
unfair labor practice proceeding under the Labor Management
Relations Act, court observes that when a complaint ‘clearly
describes an action which is alleged to constitute an unfair
labor practice but fails to allege which subsection of the Act
has been violated or alleges the wrong subsection, such failure
or mistake, if it does not mislead the parties charged, does not
prevent the (National Labor Relations Board] from considering and
Peraament United Sales. Inc.
ve NERS, 920 F.2d 130, 135-136 (2d Cir. 1990) (NLRB order finding
deciding the charge so presented")
that employer violated a section of the National Labor Relations
Act not charged in the complaint was enforceable, where the
employer had notice of the allegedly unlawful acts and the issue
had been fully litigated); cf. Maha‘ulepu v. Land Use Com‘n, 71
Haw. 332, 335, 790 P.2d 906, 908 (1990) (*ordinarily, deference
will be given to decisions of administrative agencies acting
within the’realm of their expertise."); see also Haole v. State,
111 Hawai'i 144, 152, 140 P.34 377, 385 (2006) ("it is well
established that an administrative agency's authority includes
those implied powers that are reasonably necessary to carry out
the powers. expressly aranted. The reason for implied powers is
that, as a practical matter, the legislature cannot foresee all
the problens incidental to carrying out the duties and
responsibilities of the agency.") (2006) (emphasis added).
-35-
‘s*+POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
Hiraga’s decision to investigate in these circumstances
did not cause unfair surprise or undue prejudice to
Kaho'ohalahala. In Perry v, Planning Commission, 62 Haw. 666,
685-86, 619 P.2d 95, 108 (1980), this court held that pleadings
in administrative proceedings are to be construed liberally
rather than technically. In Berry, the appellants sought a
special permit from the County of Hawaii Planning Commission and
the State Land Use Commission to use land within an agricultural
district for "quarrying" purposes. Id, at 669, 619 P.2d at 99.
After the permit was granted, several owners of property
adjoining the proposed quarry site appealed, arguing that the
permit exceeded the scope of the application by including
permission for a screening and crushing operation. Id. at 673,
619 P.2d at 101. ‘The circuit court agreed, and invalidated the
permit. Id at 685, 619 P.2d at 107. This court reversed,
holding that although the appellants originally sought permission
only for “quarrying operations,“ the full extent of the proposed
operations was fully disclosed in additional documents, the
notice of the public hearing, and during the public hearing, and
that communications between the adjacent land owners and the
commissions *reveal(ed] an awareness that the proposed use
extended beyond" quarrying. Id, at 685, 619 P.2d at 107. In
finding that the "circuit court’s holding is contrary to
-36-
‘sesv0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER***
Prevailing principles of administrative law that regard such
formalism with disfavor(,]* id. at 686, 619 P.2d at 108, this
court stated:
Modern judicial pleading has been characterized as
Sinplified notice pleading. Tes function is to give
Sppoeing parties fair notice of what the claim is and
the grounds upon Fests.” That the same, if
not more lenient st alee governs administrative
pleadings is indisputable,
Id, at 685, 619 P.2d at 108 (citation, internal quotation marks
and ellipsis omitted)
‘This court went on to cite Aloha Airlines, Inc. v
Civil Aeronautics Bd., 598 F.2d 250 (D.C. Cir. 1979) as follows:
Pleadings in adninistrative proceedings are not judged
by the standards applied to an indictment at coanon
Yaw. re te ufticient tf the respondent understood
the issue and was afforded full opportunity to justify
Les conduct during the course of the Litigation
‘Thos, the question on review is not the adequacy of
the pleading but is the fairness of the whole
procedure:
erry, 62 Haw, at 686, 619 P.2d at 108 (quoting Aloha Airlines
Inc., 598 F.2d at 262 (internal quotation marks and ellipsis
omitted) )
The analysis of Berry is instructive here, since there
were multiple forms of relief possible (loss of voter
registration in a particular precinct under HRS §§ 11-25 and 11-
26, disqualification as a candidate under HRS § 12-8) based on
the same underlying factual allegation concerning
Kaho'chalahala's residency. Bven in the context of civil
-3-
‘s*0F0R PUBLICATION IN WEST'S HAAr'T REFORTS AND PACIFIC REPORTER***
pleadings, the failure to expressly plead a particular claim for
relief is not dispositive, where the complaint alleges the
underlying facts relating to that claim and there is no prejudice
to the opposing party. Suzuki v, State, 119 Hawai'i 288, 296,
196 P.3d 290, 298 (App. 2008) (plaintiff's complaint construed as
including a claim for race discrimination)
Moreover, Dupree was proceeding pro se when he
submitted his letter to Hiraga. Pleadings prepared by pro se
litigants Should be interpreted liberally. see Giuliani v.
Chuck, 1 Haw. App. 379, 385-86, 620 P.24 733, 737-38 (1980) ("the
rules [of civil procedure] do not require technical exactness or
draw refined inferences against the pleader; rather, they require
a determined effort to understand what the pleader is attempting
to set forth and to construe the pleading in his favor. This is
particularly true when a court is dealing with a complaint drawn
by a layman unskilled in the law.
Kaho'ohalahala does not allege that because Hiraga
construed Dupree’s letter as a challenge to his residency for
voter registration purposes, Kaho‘ohalahala was denied full
opportunity to be heard in opposition. on the contrary,
Kaho'ohalahala acknowledges that Hiraga contacted him the day
after receiving the first two complaint letters, informed
Kaho'ohalahala that he was construing the complaints as
-3e-
‘s++FOR PUBLICATION IN WEST'S HAWA'T REPORTS AND PACIFIC REPORTER!
challenges to his voter registration status pursuant to HRS §
25, stated that he would conduct an investigation on the ma
and asked Kaho'chalahala to respond to the allegation.
Kaho'chalahala responded both by alleging that he was a resident
of tana'i, and by arguing that the complaint letters were
untimely challenges to his nomination papers. Kaho'ohalahala
continued to argue this point in his motion to dismiss, his
petition for writ of mandamus, and at the October 31, 2008
hearing on the merits. From the start, he was notified of the
allegations and took full advantage of the opportunity to
respond. Although Kaho'ohalahala disagrees with the outcomes of
the various rulings, he was not denied a fair opportunity to
respond.
In sum, Hiraga acted within the scope of his authority
in construing the complaint letters as a challenge to
Kaho'ohalahala’s residency under HRS § 11-25, and investigating
on that basis. The Board therefore did not err in denying
Kaho'ohalahala’s motion to dismiss, and had jurisdiction to hear
Dupree’s appeal from that aspect of Hiraga’s decision."”
YT ds unclear whether Kaho'shalahala also challenges the
sutticiency of Duproe's Octoner 20, 2008 letter of appeal to the Bosra
However, since we are cbligeted to ensure the existence of Jurisdiction, gee
073 Haw. 8,14, 828 2.28
260, 263 (19921; Hawadi Nomt Alliance Auaoc, vind. Comm'x, 106 Wawai's 21,
153; 100 p.3a 952, 167 12008), we nave reviewed that letter and conclude ¢
kt gufticiently challenged Kaho'ohalahaia’s voter registration status for th
Board to have jurisdiction to hear che appeal
-39-
‘s*4POR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER***
‘Therefore, the Board did not clearly err in entering Fs0P Nos. 3
and 4 in the order to dismiss and Fs0P Nos. 2 and 3 in its
November 1, 2008 decision. Nor was the Board wrong in entering
cs0L Nos. 2 and 3 in the order denying his motion to dismiss, or
Cs0L Nos. 2-6 in the Board’s November 1, 2008 decision
2, the Board dia not exceed its jurisdiction by referring
to Kaho‘ohalahala’s candidacy and the residency
vequirement of the Maui County Charter
Hiraga concedes that the Board had jurisdiction to hear
Dupree's appeal insofar as it challenged Kaho'chalahala’s voter
registration status. However, Hiraga argues that the Board
exceeded its jurisdiction in parts of its Novenber 1 Decision by
addressing matters related to Kaho'ohalahala’s candidacy
Specifically, Hiraga challenges FOF No. 2, which states that
Kaho'ohalahala “is a candidate for the Maui County Council for
the seat designated for the resident of the Island of Lana‘i[.]*
Hiraga next challenges Cs0L Nos. 4 and 5, which summarize maui
County Charter §§ 3-1 and 3-3 and state that the council shall be
composed of nine members, including one who is a resident of
HRS § 11-26(a) provides that in instances where the clerk rules on
fa challenge to voter registration prior to election day, "the person ruled
agsinst may appeal from the ruling to the beard of registration(.|*" In his
October 20, 2008 letter to the Soard, Dupree alleged chat Kaho'ohalahala
‘misrepresent (ed) hinself on his vorer registration, IMs nomination papers and
his sworn affidavit." Dupree’s appeal thus sufficiently notified
Kaho'chalahala that Dupree waa chatienging hia residency for voter
Fepistration purposes, and Fahoohalshale was given 2 full opportunity to
Fespond. faxky, 62 Haw. at 685-86, 619 7.2 108.
-40-
-FOR PUBLICATION IW WEST'S HAWAI'I REPORTS AKD PACIFIC REPORTER*
Lana'i, and that to be eligible to run for the seat, the
candidate must be a resident for 90 days next preceding the
filing of nomination papers. Kaho'chalahala also argues that the
‘maui County Charter references indicate that the Board's
decision went beyond its statutory authorization" in that they
‘suggest that Kaho'ohalahala did not truthfully certify in his
nomination papers that he qualified to run for the Maui County
Council.* .Hiraga also challenges CsOL Nos. 3 and 6, which
discuss the challenge to Kaho‘ohalahala’s residency ‘for election
purposes," as well as the portion of the decision holding that
Kaho'ohalahala is a resident of Lahaina *[£lor purposes of the
2008 election{.]" Hiraga argues that by including these
passages, the Board not only ruled on Kaho‘ohalahala’s voter
registration, but also exceeded its jurisdiction and ruled on his
qualifications as a candidate as well. For the following
reasons, we disagree with this interpretation of the Board’s
ruling
FOF No. 2, which states that Kaho'ohalahala is a
candidate for the Lana‘i seat, is an undisputed fact and the
Board did not exceed its jurisdiction by including it because it
provided background and context for the appeal. CsOL Nos. 4 and
5 contain extraneous information on the Maui County Charter and
the residency requirement for running for a council seat, and it
-41-
FOR PUBLICATION IW MEST’S HAWAT'T REPORTS AND PACIFIC REPORTER!
is not clear from the record why the Board included them in its
ruling. However, any error in including them is harmless because
they were not material to the Board’s holding and do not purport
to address Kaho'ohalahala’s candidacy.
Finally, although the Board stated in several instances
that it was ruling on residency “for election purposes,“ it is
apparent from the Board's decision that it was not purporting to
rule on whether Kaho'ohalahala was properly a candidate, but only
on whether he was properly registered to vote. First, the phrase
“for election purposes” appears in HRS § 11-13, which sets forth
the rules for determining residency for voting purposes. HRS §
11-13 ("The following rules shall determine residency for
election purposes only{.J"). Thus, the Board’s reference to that
phrase does not imply that it was making any determination with
regard to his candidacy. Second, the limited scope of the
Board's holding is also apparent when the challenged phrase is
examined in the context of the relief granted by the Board. Cf.
Tavlor-Rice v. State, 91 Hawai'i 60, 75, 979 P.24 1086, 1101
(2999) (clarifying the scope of a challenged conclusion of law by
viewing it in context with the trial court's other findings and
conclusions). tn the “Decision” section of its November 1, 2008
decision, the Board stated that, pursuant to HRS § 11-25(c), if
Kaho‘chalahala chose to appeal, he would be allowed to vote
-42-
FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*
vprovided that the ballot is placed in a sealed envelope to be
later counted or rejected in accordance with the ruling on
appeal." ‘The decision did not mention any possible consequences
for Kaho'ohalahala‘s candidacy under the provisions applicable to
a candidate whose nomination papers have been successfully
challenged. See HRS § 12-8. Accordingly, the Board ruled only
on Kaho'chalahala’s right to be or remain a registered voter,
which was within the scope of its jurisdiction. HRS §§ 11-25(a)
and 11-26(b) (1993). Thus, the Board did not exceed its
jurisdiction in entering FOF No. 2, Cs0L Nos. 4 and 5, and by
stating that it was determining Kaho'ohalahala’s residency for
purposes of the 2008 election.
B. The Board did not clearly err in finding that Kaho‘chalahala
was not a resident of Lina'i for the purpose of voting in
the 2008 election
The starting point for our analysis is HRS chapter 11,
which is entitled “Elections.* HRS § 11-12 (1993) provides that
a person may not register to vote in a precinct other than that
in which he or she resides. HRS § 11-13 provides in relevant
part as follows:
dency. For the
is title, there can be only one residence
widual, but in determining residency, a
person may. jolt separate from the person's
‘Spouse. The following rules shall determine residency
Hor election purposes only:
(2) “The residence of a person is that place in
which the person's habitation is fixed, and to
“hich, ‘whenever the person 1s absent, the person
-423-
+*POR PUBLICATION IN WEST'S HANATT REPORTS AND PACIFIC REFORTER!**
hae the intention to return;
(2) “A person does not gain residence in any
precinct into which the person cones without, che
Present intention of establishing the person's
Permanent dvelling place within euch precinct;
(3) Tf a person resides with the person"
family in one place, and does business in
another, the former {a the person's piace of
Fesidence; but any person having a family, who
establishes the person's dwelling place other
than with the person's family, with the
intention of remaining there chal! be considered
a resident where the person has established such
Gvelling place:
(a). the Bere intention to acquire a new
residence without physical presence at such
Place, does not establish residency, neither
Goes more physical presence without the
concurrent’ present intention to establish such
place as the person's residence:
{5}. A person does not gain or lose a residence
solely by reason of the person's presence or
absence while employed in the service of the
United States or of this state, or while a
Student of an inetitution of learning, or while
Kept in an inetitution er asylum, or while
confined in & prison;
ia] “a'person 1oses the peron’s residence in
thls Scate If the person vates in an election
held in another state by absentee ballot or in
person.
Tn case of question, final determination of
Fealdence shall be made by the clerk, subject to
appeal to the board of registration under part
THT of this chapter,
HRS § 11-13 was enacted in 1970 as part of a
comprehensive revision of the State’s election law." The House
Although Lt has been anended several tines since then, chose
amendments are not relevant to the substance of this appeal. For example, in
1975, the introductory paragraph of HRS # 11-13 was amended co eliminate a
requirement that if "a husband is a resident of this state, then the
Feridency of the husband shall determine the residency of che wife.” Comare
1970 Haw, Sess. Laws Act 26, § 2 at 19-20 wich 1975 Haw. Sess, Laws Act 6, 5
i at 49-50. I 1977, the Legislature, inter alia, eliminated a provision for
Computing the length’ of residence, 1977 Haw. Seao. Laws Act 189, 8 1 at 403-
Og” No substantive changes have been made co HRS § 11-13 since then.
Since ite adoption in 1970, there have been no published Hawai'i
cases interpreting HRS § 11-13.
44
“*+POR PUBLICATION In WEST’S HAWAr'T REPORTS AND PACIFIC REPORTER***
Judiciary Committee stated that *(tJ)he purpose of the bill is to
consolidate, streamline, and update all the material relating to
elections presently scattered throughout the statutes."
Stand. Comm. Rep. No. 1178, in 1969 House gournal, at 852.
Prior to the 1970 recodification, the Hawai‘ Revised
Statutes provided that *(nJo person shall register or vote in any
other precinct than that in which he resides,“ but provided no
guidance on determining residency other than noting that “[i]f
any person resides in more than one precinct he may elect in
which precinct he will register, but he shall register in one
precinct only." HRS § 11-2 (1968). Similar provisions were
* WRS § 11-2 (1968) stated as follows
Age, place of registering and voting. Every
person ho has reached the age of twenty years, or who
Will have reached the age of twenty years on or before
the date of the next election, and is cthervise
qualified to register may do go in the precinct in
nich Re resides.” No person shall register or vote in
any other precinct than that in which he resides;
provided, that where there is a mistake in placing the
ane of the elector on the list of electors of a
Drecinct in which he does not actually reside, che
elector shall nevertheless be allowed to vote therein,
it otherwise qualified: and the chairman of the
inspectors of election of the precinct where the
elector has voted shall notify the county clerk of the
error in order chat the nane of the elector may De
Placed on the next succeeding list of electors of the
Brecinct where he actually resides
3E any person resides in nore than one precinct
hhe may elect in which precinct he will register, but
he Shall resister in one precinct only
45-
‘s*+¥0R PUBLICATION IN WEST'S ERWAT'T REPORTS AND PACIFIC REPORTER’
included in Hawai'i’s election laws since at least 1897.”
In enacting HRS § 11-13, the Legislature noted that
*[rlesidency has been clarified’ to address various issues,
including the ‘many instances of voters residing in one area of
the State and claiming residency in another." H. Stand. coma,
Rep. No, 1178, in 1969 House Journal, at 852; $. Stand. Comm.
® civil Laws of the Mawaiian Island 1897, Appendix at § 28, stated
as follows
Piace of registering and voting. Every person
qualified to register may do so in the Precinct in
hich Ne resides; and no person shail register or vote
Yn any other [plrecinct chan that in which ne resides
Tf any person resides in more than one
(wirecinct, ne may elect which [plrecinct he will
register in: but he shall register in one [plrecinct
oniy
Provided, however, that at any epecial election,
any person who has previously registered, and since
registering has moved his residence to another
precinet without having had an opportunity to register
therein, may vote in the precinct in which he was last
Fesistered.
% Specificaliy, the House Judiciary Committee report provided:
21a. Residency has been clarified by
jtablishing that a person may only reside in one
place and my only register to vote from that place.
there are many instances of voters residing in
one area of the State and claiming residency in
Shother. ‘There are also inseances of out-of-state
Fesidents declaring the intent of becoming Hawaii
state residents pricr to the tine they are physically
{peated in the State. there are also many instances
ofa mate resident of this state marrying a fenale
Yesident of another state, who under the present law
hay not vote in this state until she has physically
Tocated here for one year, Under the present law the
voting zesidence of the above people ie vague
-46-
‘++P0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*
Rep. No, 830-70, in 1969 Senate Journal, at 1374-75.
Im substance, HRS § 11-13 sets forth general
requirenents for establishing residency in subsection (1), and
then provides additional rules in subsections (2)-(7) that
address specific situations that may arise. the definition in
subsection (1) requires the voter to both have a “habitation .
fixed* in the place where the voter registers, and to have the
intention to return to that place whenever absent. That
formulation adopts a commonly stated test for determining
domicile, which has been used by many other states to evaluate
residency for voter registration purposes, see Note, Collece
‘Student Voting: A New Prescription for an Old Ailment, 56
Syracuse L. Rev. 145, 151 (2005) (noting that “state election
laws uniformly equate ‘residence’ to ‘domicile’*
+ as well as by
this court in cases decided prior to the 1970 recodification, see
Ince Hurley, 30 Haw. 887, 996-97 (1929). Additionally, this
court has used similar formulations of the test to evaluate
domicile in other contexts. Yamane v, Piper, 51 Haw. 339, 340,
461 P.2d 131, 132 (1969) (defining -resident~ in terms of
‘domicile’ when determining whether a person is a resident of
he relevant portion of the Senate Judiciary Coamittes report was
identical to the House Judiciary Committee report.
-4a7-
"FOR PUBLICATION IN WEST'S NAWAI'T REPORTS AND PACIFIC REPORTER***
Hawai'i for income tax purposes); Blackburn v, Blackburn, 41 Haw.
37, 40-41 (1955) (construing "resided" to mean "domiciled* in the
divorce context); Rowell v. Powell, 40 Haw. 625, 628-30 (1954)
(applying domicile principles to evaluating whether husband was a
resident of the Territory of Hawai'i for the purposes of a
separate maintenance suit).
HRS § 11-13(4) addresses changes in residency, and
provides that “[t]he mere intention to acquire a new residence
without physical presence at such place” is not sufficient to
establish a new residence. Thus, consistent with HRS § 11-13(1),
this section requires both action and intent on the part of the
voter before a new residence is established. The requisite
intent is to ‘acquire a new residence." HRS § 11-13(4). This
necessarily implies a concurrent intent to abandon his or her
prior residence, since a person can have only one residence under
the statute. HRS § 11-13 ("there can be only one residence for
an individual”
In the instant case, the Board found chat
Kaho‘ohalahala was a Lana'i resident up to the 2006 election.
There is substantial evidence to support that finding. The
record establishes that he was born and raised on tana‘i, had
family there, returned periodically over the years, was
registered to vote there from 1982 up until 2006, and although he
-48-
s*4POR PUBLICATION I WEST’S HAMAI'T REPORTS AND PACIFIC REPORTER
lived and was employed elsewhere at various times, his stated
intent was always to return,
However, in 2006, Kaho'ohalahala changed his voter
registration to Lahaina, where he was living and working at the
time. The Board found that by so doing, he lost his residency on
Lana'i. The Board did not clearly err in reaching that
conclusion. By registering to vote in Lahaina, Kaho'ohalahala
represented that it was his place of residence. See HRS § 11-13
("there can be only one residence for an individual"); HRS § 11-
15 (a citizen seeking to register to vote must submit an
affidavit including a declaration of his residence). That
statement of intent, together with his habitation on Maui,
established Maui as his residence. HRS §§ 11-13(1) & (4).
Courts from other jurisdictions that apply a domicile
test have concluded that the act of registering to vote or voting
in a new district results in the loss of residence in a district
where the voter previously resided. See Klumker v. van Allred,
811 P.2d 75, 78-79 (N.M. 1991) (finding that three brothers were
not residents of the county where their fanily ranch was located
because, although they visited the ranch regularly and kept
personal items there, they had moved outside the county and voted
at those locations); Kauzlarich v. Ad, of Trs., 278 P.2d 888, 891
(Ariz. 1955) (husband and wife were not residents of a county for
-49-
“FOR PUBLICATION IN WEST'S HAAI'T REPORTS AND PACIFIC REPORTER‘
voting purposes even though they purchased property there, moved
fa house and some personal property onto the premises, and went
there each weekend to work on the property with the intention of
moving there because they were still living outside the count:
where they had registered to vote and voted); gee also Del Rio
Indep. sch, Dist, v, Aldrete, 398 §.W.2 $97, 603 (Tex. 1966)
(noting that the place where a person votes is evidence of
whether that person’s actions corroborate his stated intention to
change his residence for voting purposes)
Kaho'chalahala and Hiraga both argue that because
Kaho'ohalahala was working for the State of Hawai'i when he was on
Maui, HRS § 11-13(5) provided that he would not lose his Lana'i
residency. However, that statute provides that *[a] person does
not lose a‘residence solely by reason of the person's presence or
absence while employed in the service of . . . this State{.] *
(emphasis added). HRS § 11-13(5). In the instant case,
Kaho'ohalahala did not lose his Lina'i residence solely by reason
of being employed on Maui. Father, he lost it because he
registered to vote in Lahaina. While HRS § 11-13(5) protects the
preexisting residency of a state employee who retains the intent
to return to his original residence in the future and acts
consistently with that intent, it does not protect someone who,
Like Kaho‘ohalahala, renounces that pr
xisting residency by
-50-
‘s*+POR PUBLICATION IN WEST’ S EAWAI'T REPORTS AND PACIFIC REPORTER***
registering to vote elsewhere.
‘Thus, when Kaho'ohalahala registered to vote on Lana’
for the 2008 election, he did so not as someone seeking to vote
there after a long, unbroken period of residency on the island.
Rather, it was as someone who was seeking to change his residency
to Lana'i after having become a resident elsewhere, in this case
Maui. In addition to satisfying the basic residency test of HRS
§ 11-13(1), i-e., that he had a “habitation fixed" on
Lsna'i and that he intended to return there when absent, he also
needed to have a sufficient “physical presence’ on Lana'i under
HRS § 11-13(4) to corroborate his intent to abandon his Maui
residence.
‘The Board concluded in COL No. 14 that Dupree
established that Kaho‘ohalahala did not abandon his residence in
Lahaina and relocate his permanent residence to Léna‘i.” The
Board did not clearly err in reaching that conclusion. The Board
found, and there is substantial evidence in the record to
establish, that Kaho‘ohalahala did not om or work for a business
on Lana'i, and did not own or rent a house or keep a car on the
» tn his points of error on appeal, Hiraga contended that COL No. 14
was an inaccurate statenent of the law. fowaver, Hiraga failed to offer ay
SRrounent in support of this contention, and accordingly it ie desnes waived
WRAP 26(b) (7) (Points not argued may be deened waived.) in any event,
although this conclusion does not directly track the provisions of HRS § 11-
13, we believe that it fairly summarizes the showing Fequired under HRS § 11-
13° (I) g°(4) in the circunstances of this case
-s1-
‘**0F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
island, Hiraga and Kaho'ohalahala argue that those findings are
immaterial or not dispositive. while they are certainly not
dispositive, they are relevant because they support an inference
that Kaho'ohalahala had not established the necessary physical
presence on Lana'i.™ Cf. Yamane, 51 Haw. at 340-41, 461 P.2d at
132-33 (concluding that “the pulling of stakes was complete’ and
appellee was no longer a Hawai'i resident for income tax purposes
when he had moved to Wake Island with his wife and children, sold
his car, TV, and household furnishings, and did not leave real or
personal property or an open bank account in Hawai'i)
‘The Board further found that Dupree had not seen
Kaho'ohalahala at “the post office, either bank, the Lana‘i store,
the gas station or any restaurant on Lana'i.* There was
substantial evidence to support that conclusion as well. Once
again, while none of those observations are dispositive, they are
relevant. The record establishes that Lina'i is @ small, close
knit community where residents would likely see each other at
such locations. ‘Thus, the observations support the inference
that Kaho'chalahala had not established a sufficient physical
presence of tana’
% aho‘ohalahala sotes that the letters submitted by eight of che
citizen complaints staved that he had a-P.0. Bor on Lanai» However, the
Soard Gid'not enters finding on that Seoue; im any event, even if
Keho'ohalaala had a P.O. Box on Uana'l, there ie still ingufficient evidence
to establish the necessary physical presence on Lana'i
52+
WFOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER’
Although Kaho'ohalahala and his brother's affidavit
established that Kaho'chalahala had been ‘welcomed’ back to his
brother's home in July 2008, there was nothing in the record to
establish that Kaho'chalahala actually lived there or anywhere
else on Lana'i in any conmonly-understood meaning of the term.
Kaho‘ohalahala’s affidavit states that his “residence is fixed at
() Fraser Avenue in Lana'i City." Similarly, his brother's
affidavit states that Kaho‘ohalahala “presently resides at []
Fraser Avenue (and has} resided there since the beginning of
July, 2008." However, neither affidavit states that
Kaho‘ohalahala actually lives at that address, or that he has
stayed there for any particular number of nights, keeps personal
items there, shares in paying the utility bills, or provides any
other details consistent with actual residence at a particular
location.
Moreover, there is no evidence in the record
establishing that Kaho'ohalahala had abandoned his established
residence on Maui.* To the contrary, the record shows that he
* _kaho'ohalahata contends in his brief that the Bosrd erroneously
put the burden of proof on Kaho'ahalahala with regard to the question of
‘uhether he had abandoned his Lahaina residence after registering to vote there
in 2006. However, the Soard explicitly acknowledged in COL No. 13 that Dupre
had both the burden of proof and the burden of persuasion in the proceeding.
MRS §91-10(5) and WAR § 2-51-a)(hI, and there fa nothing in the record to
indicate that the Board misapprehended that burden.
-53-
‘sse70R PUBLICATION IN WEST'S HRWAT'T REPORTS AND PACIFIC REFORTERY*®
continued to work there, as did his wife,** and they continued to
stay at their home in Lahaina.” Cf, Arakaki v. Arakaki, $4 Haw
60, 62, 502 P.2d 380, 382 (1972) (party in a divorce proceeding
“had a job, home, family and financial obligations in this state”
and accordingly was a Hawai'i resident before becoming an
‘employee of the Federal Government working in Japan‘; this court
rejected his claim that he no longer was a Hawai'i resident since
“[t}here is insufficient evidence in the record to rebut the
presumption that appellant’s domicile in Hawai'i continued while
he resided in Japan").
‘There was evidence that Kaho‘chalahala visited Lanai
after registering to vote there in guly 2008. Dupree testified
that he had heard that Kaho'ohalahala was on Lanai for a rally
just before the primary, and that he had observed Kaho'ohalahala
on Lanai at the Aloha Festival in October 2008, when
Kaho'ohalahala stayed on the island for several days. McComber
also testified that Kaho'chalahala returned to Lana‘i for the
% Although under HRS § 11-13 @ person may have a separate residence
from that of the person's spouse, the location of one’s spouse and children
Gan nevertheless be relevant to determining whether a person actually
Felocated his or her residence. Cf. Yamane, 91 Haw. at 340-é1, 461 .2¢ at
152-33 (the fact that appelice had soved to Wake Teland with his wife and
Ghilaves, sold thelr personal belongings, and did ot leave real or personal
property or an open bank account in Hawai't, was evidence that he was no
Tonger a resident of Nawal'd)
P __Te dp unclear whether Kaho'ohalahala and hie wife owned or rented
their hone in Lahaina
o54-
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*"
rally, and that he had geen Kaho'ohalahala’s brother *pick[) him
up at the dock and. . . drive(] him around* on an unidentified
number of instances
‘hese visits do not constitute a sufficient physical
presence on Lana‘ to establish that Kaho‘chalahala had changed
his residence from Maui to Lana'i within the meaning of 11-13(4),
nor are they sufficient to establish a “habitation . . . fixed*
on Lana'i for the purposes of HRS § 11-13(1) in these
circumstances, i.e., where a previous resident has lost his or
her residence by virtue of registering to vote elsewhere, and now
seeks to reestablish it.
Although there are no Hawai'i cases directly on point,
several cases from other jurisdictions have considered challenges
to the registration of voters who sought to return to their
original residence after registering to vote elsewhere. Although
the voters in those cases had a nore significant physical
presence in their original areas of residence than Kaho‘chalahala
had on Lanai in July 2008, the courts nevertheless found that
they were not properly registered in those areas.
% FOP No. 13, which states that McComber testified that he *hald]
pot seen Mr. Kaho'chalahala on Lana'i,* is therefore clearly erroneous
However, we find the error was harnleas aince Neconber's testimony wae einilar
to that of Dupree. The brief vieits by Kahohalahala to bana’ were
ineufficient fo establish that Kaho'chalahala's "habitation (wale fsxed"
there. HRS § 11-1312)
-55-
-FOR PUBLICATION IN WEST'S HANA‘ REPORTS AND PACIFIC REPORTER***
In Klunker, the New Mexico Supreme Court considered a
challenge to the voter registration of three brothers in Catron
County, Arizona. The brothers were born and raised in Catron
County, had extended family there, and had a family homestead
which they visited several times a month. 811 P.2d at 76. ‘They
kept clothing and other personal effects at the homestead, and
stated that they intended to return to the homestead whenever
they were absent. Id, However, prior to the election in
question, the brothers had all moved outside of the county with
their immediate family members, had been employed and voted in
their new locations, and listed the new location as their
residence on their driver’s licenses, vehicle registration, tax
returns, and bank accounts. Id, at 76-77. The district court
found that because of a scarcity of employment in Catron County,
the brothers were required to maintain a second residence in
other locations, but that their habitation remained fixed at
Catron County. Id. at 77.
Applying New Mexico's elections statute,” the New
% sew Mexico's elections statute contained the sane basic definition
of renidency ao WRS § 11-13(1), Nuts, Stat, Ann. § 1-1-7(A) (est 1978), aa
ell’as a lise of additional principles which is sistlar in structure to HRS §
11-13, but with sone variations in individual provisions, gee, e.d., N.¥.
Stat. ann. § 1-1°7(c) (*(A] change of residence is made only by the act of
Fenoval Joined with the intent to resain in ancther place.*) and (Hl (* (Ml
Deron loses His residence in this state if he votes in another state in an
Slection requiring residence in that state, and has not upon his return
Fogained his residence in thie state under the provisions of the constitution
of New Mexico-")-
-56-
‘s*4POR PUBLICATION IN WEST’S HAVAZ'T REPORTS AND PACIFIC REPORTER***
Mexico Supreme Court concluded that the district court erred in
finding that the Allred brothers’ habitation was fixed in Catron
County, since “there was no substantial evidence that they had
the requisite physical presence in Catron County." Id. at
78. Although the brothers were present in the county when they
registered to vote, returned to their home in the county as often
as once a week and maintained personal property there, ~(wJhat is
required is not momentary, or occasional or sporadic physical
presence; it is significant physical presence consistent with the
ordinary conception of living (or abiding, or residing, or
welling, or maintaining a habitation) in a place." Id. at 78
(emphasis in original). After noting that the brothers had lost
their original residency in Catron County because they had
registered to vote and had voted elsewhere, the court went on to
hold “none, of the Allred brothers had a sufficient physical
presence in Catron County at the time each registered to vote
there in 1988 so as to effect a change in his residence for
voting purposes." Id, at 79.
In Kauzlarich, the Arizona Supreme Court considered an
election contest alleging that the Oak Creek School District
wrongfully denied a married couple their right to vote in an
election. 278 P.24 at 890, The couple purchased property in the
ak Creek district, moved a house and some personal property to
-57-
'POR PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REPORTER:
the premises, and worked on the house every weekend with the
intention of making it their future home. id, at 891. The
couple also stated that their residence had always been with the
husband’s parents, who had moved from Beaver Creek to the Oak
creek district. 4. However, the husband had been employed in
Beaver Creek for the three years preceding the election, and
continued to vote in Beaver Creek after his parents had moved to
Oak Creek. Id, at 890. The trial court found that the husband
and wife were not residents of Oak Creek for the purpose of
voting in the election. Id.
applying Arizona’s statute for determining residency,
the Arizona Supreme Court affirmed the trial court's
determination that the husband and wife were not residents of oak
creek. 1d. at 892. Although the couple stated that their
residence had always been with the hushand’s parents, the court
found that.the “fact that (the husband) voted in Beaver Creek
precinct . . . long after his parents had moved to [the] Oak
Creek district, completely refutes so far as establishing his
Arizona's elections statute also contains the sane basic
definition of residency as HRS § 11-13(2), A.C-A. § S5-512(1) (2939), ag well
a5 a list of additional principles which is similar in structure to iRS § 11-
15, "bur with sone variations in Individual provisions, gee, eae, A.C-A- § 55-
512(7) ("The place where a man's fanily permanently resides 12 his residence
Unies he be separated therefron, but if it be a piace of temporary
establishment for his family, or for transient chjects, it ia otherwise.) ond
(8) (The rere intention to acquire a new residence vichout act of renoval
avails nothing; neither does the act of renoval without ehe intention|<1*)
-58-
‘**POR PUBLICATION In WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER‘*#
right to vote in Oak Creek precinct is concerned, the statement
that he was residing with them [at that time].* Id. at 991. the
court also found that the couple's claim that they resided with
the husband’s parents was not supported by the evidence because
they did not purchase groceries for the parents’ home or pay the
parents rent or board, and the home was too small to accommodate
the couple and their two small children in addition to the
husband’s parents and grandparents, who lived there as well. Id.
at 892,
While there are some differences in the underlying
statutory schemes, the rationale of these cases is instructive in
applying HRS § 11-13 to the circumstances of this case. Although
someone who has established residency in a place can maintain
that residency despite being physically absent as long as he or
she intends to return and acts consistently with that intent,
see, €.0., Holton v, Hollingsworth, 514 $.8.24 6, 9-10 (Ga. 1999)
{although voter left his hometowm to serve in the military and
then lived in a house in another community, voter was properly
registered in hometown when he maintained significant ties there
and intended to return), different considerations apply once a
person has. established a new residence elsewhere. HRS § 11-13(4)
recognizes that principle by explicitly requiring that the person
have a "physical presence’ which corroborates the person’s intent
-59-
/+FOR PUBLICATION IN WEST'S HAKA'I REPORTS AND PACIFIC REFORTER***
to abandon his or her prior place of residence.
‘The requirement of a ‘physical presence* in HRS § 11-
13(4) must be read in pari materia with the other provisions of
MRS § 11-13. HRS § 1-16 (1993) (*Laws in pari materia, or upon
the sane subject matter, shall be construed with reference to
each other. what is clear in one statute may be called in aid to
explain what is doubtful in another.*). HRS § 11-13(1) requires
the voter to have a “habitation [that] is fixed" in order to
establish residency, while HRS § 11-13(2) provides that *[a]
person does not gain residence in any precinct into which the
person conés without the present intention of establishing the
person's permanent dwelling placel.1° (emphasis added). Both
habitation and dwelling place imply that the person is living at
the location. Thus, the statute requires that the person seeking
to relocate his residence to a new district must establich a
@welling or otherwise live in the district, in the connonly
understood meaning of those terms. HRS § 1-14 (“The words of a
law are generally to be understood in their most known and usual
signification, without attending so much to the literal and
strictly grammatical construction of the words as to their
general or popular use or meaning.
In arguing that Kaho‘ohalahala had a sufficient
physical presence on Lana‘i, Hiraga and Kaho'chalahala both invoke
-60-
VOR PUBLICATION IM WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER"
the principle that a person need not live in an area for any
particular time in order to establish residence there. see
o v. Anderson, 38 Haw. 261, 263 (1948) (*(T]he length of
actual residence is inmaterial to the acquisition of a domicile.
A day or an hour will suffice.") (citations omitted); Bowell, 40
Haw. at 630 (*Length of residence is not a factor where the act
and intention to acquire a domicile concur. . . . No definite
period of time is necessary to create a domicile and one day is
sufficient provided the animus manendi exists
(citation
omitted). “As a general proposition, that principle is correct.
Z£ a person who has been living on the mainland packs up their
belongings and ships them to Hawai'i, flies to Honolulu and moves
in with family members with the intent of making Hawai'i their
permanent home, they could be considered residents from the day
they arrived. at the other extreme, consider a person who has a
hone in Los Angeles, flies to Honolulu and registers to vote, and
then returns to Los Angeles on the same day, all with the stated
intent of making Honolulu his or her permanent residence.
Recognizing such a person as a Honolulu resident would render the
physical presence requirement in HRS § 11-13(4) an absurdity.
See State v. Haugen, 104 Hawai'i 71, 76-77, 85 P.3d 178, 183-84
(2004) ("the legislature is presumed not to intend an absurd
result, and legislation will be construed to avoid, if possible,
61.
-FOR PUBLICATION IM WEST’S HAWAI'T REPORTS AND PACIFIC REPORTER:
inconsistency, contradiction, and illogicality*) (citation
omitted). Rather, the voter in such a case would need to have a
more significant physical presence in Hawai'i, consistent with
the intent to abandon his or her California residence, before he
or she could be considered a Hawai'i resident
Kaho'ohalahala suggests that his absences from Lana'l
were not relevant, since temporary absence from a residence does
not result in the loss of that residence absent an intent to
leave it. See HRS § 11-13(2). Similarly, Hiraga cites In re
Huxley for the proposition that a county council member or
supervisor need not reside exclusively in his district, and may
maintain temporary homes in other places. 30 Haw. at 896-97.
However, those arguments presuppose that Kaho‘chalahala had
established residency on Lana‘i when he left after registering to
vote there in July 2008. Since we conclude that he had not done
so, the provisions of HRS § 11-13(2) do not apply to his
subsequent absences, and In xe Hurley is therefore
distinguishable.
Hiraga contends that *[t]he key to determining
In_z2 uurlev concerned @ chsllenge to the residency of a Kauai
county supervisor, Eric Knudsen, in 1927. Rnudsen bad homes ané substantial
business interests in both Waimes and Koloa, and split his time between the
Exo locations. 30 Haw. at 890-31. ‘This court concluded that Knudsen was a
Feeident of Waimea. Kiudeen ad a far nore established physical presence in
Sines than Xahoohalahal did on Lanwi. Algo, although Fowdsen had been
Fegistered to vote in Koloe for several onthe in 1923, he had transferred his
registration vo Wainea before the 1923 election and renained registered there
for the 1925 and 1927 elections. Ig. at 891-92.
362-
s*+POR PUBLICATION IN WEST'S HAWAZ'T REPORTS AND FACIPIC REPORTER"
residency is the person's state of mind[,)* and suggests that the
Board failed to provide proper weight to evidence regarding
Kaho'ohalahala‘s intent.” However, that argument is contrary to
the plain language of HRS § 11-13(4), which requires an analysis
of both intent and the existence of a physical presence which
corroborates that intent. Cf. Blackburn, 41 Haw. at 42, 44 (in
rejecting a claim by a party to a divorce proceeding that he had
changed his domicile from California to Hawai‘, this court noted
that *[i]ntention has always been given large consideration, but
claimed intention without acts to support it is not controlling*
‘and “since actions speak louder than words the conduct of @
person is the most important evidence of his intention to acquire
a domicil{e} in a place") (citations omitted).
Finally, we note that there are provisions in the
Hawai‘ Administrative Rules that relate to voter registration,
HAR §§ 2-51-20 to -31 (2000), including a provision that
% th support of this argunent, Hiraga cites to a 1986 opinion by the
state Attorney General, which concluded that a legislator who temporarily,
Lived outside of his district while his house inside the district was being
renovated did not lose his residency in the district. Op. Attn'y Gen. 66-10
(3986), 1986 WL 80018. In reaching that conclusion, the opinion staced chat
Inder section 11-13, one's state of mind determines one’s piace of
residence.” Jd, siip op. at *2. However, there was nothing in the opinion
te indicate chat’ the legislator had reyistered co vote in the tenporary
Gsstrict cr had otherwise acted inconsistent with maintaining his residency in
his original district during his tesporary absence from it. Thus, the opinion
Adivesses a factual situation diatinct from that here, and the opinion's
Comment about che importance of intent mist be considered in Light of ‘that,
fsctual context. In any event, “Attorney General's opinions are highly
instructive but are not binding upon thie court.” Taniguchi v. Age"n of
Apartnent Owners of King Manors Ine, 11 tawari 37, de n-12, 153 P-3d i138,
{itrenel2 (2007) (enphasie in origimal; citations omitted).
63
FOR PUBLICATION IM WEST'S EAWAZ'r REPORTS AND PACIFIC REPORTERS**
addresses the determination of residency, HAR § 2-51-25.” Hiraga
% aR § 2-51-25 provides in relevant part:
(a) In addition to the rules for determining residency
provided in MRS § 11-13, the following shall also be applicable in
Setermining the residence of a person for election purposes
a
a
‘The residence of a person ie that place in
ibich the peracn’s habieation is fixed,
sihere the person intends to renain, and
‘then absent intends to return:
When @ person has more than one residence
(A) “rE a person faincaine a homeowner's
property tax exemption on the
Gwolling of one of the residences,
there shail be a rebuttable
presumption that the residence
Subject to the homeowner's property
fax exemption is that person's
Fenisence,
() Tf’ pereon clains a renter’s tax
credit. for one of the residences,
there shall be a rebuttable
presumption that the residence
Subject to the renter's tax credit
fg that person's residence; and
[c) Tf a perton has not physically
resided at any one residence within
the year innediately preceding the
election, there shall be a
Febuttable presumption that the
Fesidence in which the person ha
not resided is not the person's
Fesidence:
jen a person of this State is employed in
the service of the United States, 1s'a
Student of an institution of leaning, o
{a in an institution, asylum, or prison
(A) A’person does not gain or lose
residence ina precinct or this
State solely by reason on being
present in or absent from a precinct
or this States and
1B) A'person once having established
Feeidency ina precinct shall be
allowed to register and vore and to
Continue to vote from the address at
which the person ia reglatered even
Though, while residing outside of
the precinct of the State, the
person no longer has a place of
bode in the precinct and the
person's intent co return to the
precinct may be uncertain
~64-
“*POR PUBLICATION IN WEST’ MAWAI'T REPORTS AND PACIFIC REPORTER***
did not refer to any of those provisions in his October 10, 2008
ruling, and the Board's Novenber 1, 2008 decision contain only a
brief reference in COL No. 13 to HAR § 2-51-43(h) (*Rules of
evidence as specified in HRS § 91-10 shall be applicable . . .*
to a hearing before the Board challenging voter registration
prior to election day). Neither Hiraga nor Kaho'chalahala
contend here that the Board erred by failing to consider HAR § 2-
51-25. while this court has the discretion to notice plain
error, HRAP Rule 28(b) (4), we decline to do so here since it does
not appear that the outcome would be any different under HAR § 2-
51-25.
In sum, the Board did not clearly err in concluding
that Kaho'ohalahala was a resident of Lahaina rather than Lana‘i
for purpose of voting in the 2008 general election, and that
Dupree's appeal should be sustained as a result. In light of
this analysis, Kaho'ohalahala’s and Hiraga’s challenges to FsOF
Nos. 5, 7-8, 12, 14-16, 19 and CsOL Nos. 3-6, 12-14 in the
November 1, 2008 decision are without merit.
() Should a person's statue change and the person takes
up residency in another precinct or state, there shal! be a
Feburegble presumption that the new place of residence is that
person's residence.
(G)_ For purposes of this section, a rebuttable presueption
is a presumption considered true unless prove false by evidence to
the contrary.
-65-
/*P0R PUBLICATION IN WEST'S HAWAI'I REPORTS AKD PACIFIC REPORTER***
v. conciusrow
We affirm the November 1, 2008 Findings of Fact,
Conclusions of Law, and Decision of the Board of Registration,
county of Maui.
Kenneth Kupchak, Robert
‘Thomas and Christi-anne
Kudo Chock (of Damon Key
Leong Kupchak Hastert) for
petitioner/appellant-appellee
Brian 7, Moto, Corporation
Counsel, and Jane Lovell,
Deputy Corporation Counsel,
County of Maui, for
respondent /appell
appellant Roy T. Hiraga
Benjamin E, Lowenthal
for respondent /appellee-
appellant solomon
Kaho'ohalahala
-66-
|
956063ba-e0cd-46e6-944d-385c248f8331 | State v. Grindling | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29307
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
SOATE OF HAWALZ, Respondent/Plaincitt-Appelieg,
CHRISTOPHER GRINDLING, Petitioner/Defendant-Appeliant
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS <>
(cR. NO. 07-1-0533)
(By: Moon, C.J., for the court")
Petitioner/defendant-appellant Christopher Grindling’s
vmotion for certiorari," filed on July 31, 2009, is deemed an
application for a writ of certiorari to review the July 22, 2009
order of the intermediate court of appeals. The July 22, 2009
order is not reviewable by the supreme court by application for a
writ of certiorari. See HRS § 602-59(a) (Supp. 2008).
‘Therefore,
XT IS HEREBY ORDERED that the application for a writ of
certiorari is dismissed.
IT IS FURTHER ORDERED that the “motion for leave from
certiorari to allow lower court to reconsider,” filed on August
2009, is also dismissed.
DATED: Honolulu, Hawai'i, August 27, 2009.
ron mu coonr:
Z £ Justice
considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald,
|
391e3cae-11c0-4612-a087-a69e07b2ddce | In re Cutler | hawaii | Hawaii Supreme Court | No, 29950
IN THE SUPREME COURT OF THE STATE OF HAWAT‘)
11 RE ZAURK JRVE COTLER, PeEittoner. a
Hy
az
ORIGINAL PROCEEDING
ORDER ING PETITION 70 RESIGN AND SURRENDERIL:
(By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of Petitioner Laura Jane Cutler's
Petition to Resign and Surrender License, the attached
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai'i (RSCH), Therefore,
IT IS HEREBY ORDERED that the petition is granted.
IT IS FURTHER ORDERED that Petitioner Cutler shall
return her original license to practice law to the Clerk of this
court forthwith. The Clerk shall retain the original license as
part of this record. Petitioner Cutler shall comply with the
notice, affidavit, and record requirements of sections (aj, (bl,
(d), and (g) of RSCH 2.16.
IT IS FINALLY ORDERED that the Clerk shall remove the
name of Laura Jane Cutler, attorney number 8687, from the roll of
attorneys of the State of Hawaii‘l, effective with the filing of
this order.
DATED: Honolulu, Hawai'i, August 5, 2009.
Gr
Pees CT 0eiy Le
|
c5da7c31-d4fc-415f-816c-1bca77ab78c8 | Smallwood v. Haseko | hawaii | Hawaii Supreme Court | No, 29650
1906002
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
CRAIG SMALLWOOD,
Petitioner /Plaintiff-Appellant,
80:5 wy ¢.
HASEKO (EWA), INC., and CITY AND COUNTY OF HONOLULU,
Respondent s/Defendants-Appel lees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(crv. NO. 4-1-2315)
for the court™)
(By: Moon, C.
Petitioner/plaintiff-appellant Craig Smallwood's
application for writ of certiorari, filed on September 16, 2009,
is hereby rejected.
DATED: Honolulu, Hawai'i, october 9, 2009. __
KES.
For Tue coun: (">
«, SEAL “)
Or... Soca
wa, Acoba, Duffy, and Recktenwald,
considered by: Moon, C.J, Nakay
3s.
oss
|
12e99f53-58fb-4571-a366-9c4edcfba140 | State v. Winfrey | hawaii | Hawaii Supreme Court | The Honorable Lenore K.J.H. Lee presided.
1
NO. 28737
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
_________________________________________________________________
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee,
vs.
KENNETH MICHAEL WINFREY,
Petitioner/Defendant-Appellant.
_________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFFIC NO. 1DTC-07-014931)
ORDER AFFIRMING JUDGMENT ON APPEAL
(By: Moon, C.J., Nakayama, and Recktenwald, JJ.;
and Duffy, J., Dissenting, with whom Acoba, J., joins)
Petitioner/defendant-appellant Kenneth Michael Winfrey
filed a timely application for a writ of certiorari from the
judgment of the Intermediate Court of Appeals (ICA) filed May 18,
2009, entered pursuant to the ICA’s April 29, 2009 Summary
Disposition Order, which affirmed the August 3, 2007 judgment of
the District Court of the First Circuit (district court). This
1
court accepted certiorari on September 16, 2009, and subsequently
held oral argument on November 5, 2009.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, and also having
2
heard and carefully considered the parties’ respective arguments
at oral argument, we conclude that Winfrey did not preserve his
objections to the testimony concerning the speed check, and that
those objections were therefore waived.
We further conclude that the admission of that
testimony did not constitute plain error. The decision to notice
plain error is discretionary and must be “exercised sparingly and
with caution because the plain error rule represents a departure
from a presupposition of the adversary system - that a party must
look to his or her counsel for protection and bear the cost of
counsel’s mistakes.” State v. Fields, 115 Hawai#i 503, 529, 168
P.3d 955, 981 (2007) (citation omitted); State v. Fox, 70 Haw.
46, 56, 760 P.2d 670, 676 (1988) (noting that the decision
whether to notice plain error “must turn on the facts of the
particular case to correct errors that seriously affect the
fairness, integrity, or public reputation of judicial
proceedings”) (citation and internal quotation marks omitted).
This court has previously declined to notice plain
error when a defendant fails to preserve his or her objection to
inadmissible evidence. In State v. Wallace, 80 Hawai#i 382, 409-
10, 910 P.2d 695, 722-23 (1996), the defendant argued that the
State failed to establish a sufficient foundation to admit a
police officer’s testimony about the gross weight of cocaine
seized from the defendant’s car because the State did not
3
establish that the scale used to measure the cocaine was
accurate. We held that the foundational objection was waived,
because although the defendant had objected to the testimony at
trial, he did so on the basis of relevancy, not on the basis that
the prosecution failed to establish the accuracy of the scale.
Id. at 410, 910 P.2d at 723. This court did not find plain error
in these circumstances. Id. (citing State v. Naeole, 62 Haw.
563, 570-71, 617 P.2d 820, 826 (1980)).
Moreover, Winfrey cannot overcome the effect of his
waiver by suggesting that the testimony was insufficient to
support a conviction because foundation was lacking. To the
contrary, this court stated in Wallace that “[t]he rule is well
settled that evidence even though incompetent, if admitted
without objection or motion to strike, is to be given the same
probative force as that to which it would be entitled if it were
competent.” 80 Hawai#i at 410, 910 P.2d at 723 (quoting 2
Wharton’s Criminal Evidence § 265 n.3 (14th ed. 1986) (internal
quotation marks omitted)). Accordingly, we observed that “[i]t
is the general rule that evidence to which no objection has been
made may properly be considered by the trier of fact and its
admission will not constitute grounds for reversal.” Id. (citing
Naeole, 62 Haw. at 570-71, 617 P.2d at 826); State v. Samuel, 74
Haw. 141, 147, 838 P.2d 1374, 1378 (1992)); see People v. Rigsby,
890 N.E.2d 1146, 1148-51 (Ill. App. Ct. 2008) (defendant was
4
convicted of driving under the influence of alcohol and argued
that a police officer’s testimony about defendant’s breath test
was inadmissible because the accuracy of the machine used to
conduct the test had not been properly established; the court
held that any error in the admission of the breath test results
was not plain error since “foundational issues go to the
admissibility of the evidence, not the sufficiency of the
evidence”) (citation omitted).
Accordingly,
IT IS HEREBY ORDERED that the ICA’s May 18, 2009
judgment on appeal is affirmed.
DATED: Honolulu, Hawai#i, December 22, 2009.
Brian Vincent
(Deputy Prosecuting Attorney)
for Respondent/Plaintiff-
Appellee
James S. Tabe
(Deputy Public Defender)
for Petitioner/Defendant-
Appellant
|
7e6d2498-ea1e-4cef-8c6c-4d368eb56905 | State v. Alston | hawaii | Hawaii Supreme Court |
RARY
wo. 28410
IN THE SUPREME COURT OF THE STATE OF HAWAT'r
STATE OF HAWAT'T, Respondent/Plaintif£-Appellee,
WILLIAM D, ALSTON, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 05-21-0936)
(By: Recktenwald, J, for the court™
Petitioner/Defendant-Appellant William D. Alston's
application for writ of certiorari filed on July 23, 2009, is
hereby rejected.
DATED: Honolulu, Hawai'i, August 27, 2009.
FOR THE couRT:
PPh & Pec taed
Associate Justice
$
s
I
2 considered by: Moon, C.J., Nakayama, Acoba, Duffy, and
Recktenvalé, JU)
|
85fdbee8-01b9-4330-bb70-28423cdcdeed | In re Z.M. | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29299
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
2
Z.M., a minor.
In the Interest of
Oats
=
CERTIORARI TO THE INTERMEDIATE COURT OF APREALS
(FC-S NO, 008-11755) 8
-ERTIORAR]
for the court")
(By: Moon, C.J
Petitioner mother-appellant’s application for writ of
filed July 23, 2009, is hereby rejected.
certiorari,
DATED: Honolulu, Hawai'l, September 1, 2009.
FOR THE COUR
Herbert ¥. Hanada,
for mother-appellant,
on the application
Li Justice;
and
and Duffy, J
recused.
Moon, C-J-, Nakayama, Acoba.
+ Considered by
Judge Hirai, in place of Rectenwald, J.
|
46ac4eda-6686-484d-9455-9d17e099ee50 | In re Application of 754 Castle | hawaii | Hawaii Supreme Court | No. 29516
IN THE SUPREME COURT OF THE STATE OF HAWAI'L
In the Matter of the Application of 754
to register and
HAROLD KAINALU LONG CASTLE,
confirm title to land situate at xailua, District
of Koolaupoko, City and County ef Honolulu, State of, Hawai'i,
ESTRELLA C.S. IGARTA,
Respondent /Petitioner-Appellee,
aang
AMON PAL LOCRIGCHZO and BARBARA YARIE LOCRIGOHZO,
Sotbend and etter
tet itiontt Rospatent kppeliante
6056 HY 6- Logg
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(LAND COURT APPLICATION NO. 754)
JON FOR WRIT OF CERTTORART
C.J., for the court")
ORDER REJI
(By: Moon,
Petitioners/respondents-appellants Anthony Paul
Locricchio’s and Barbara Marie Locricchio’s application for writ
of certiorari, filed on September 17, 2009, is hereby rejected.
DATED: Honolulu, Hawai'i, October 9, 2009,
SE
For THE courr: /4*" Oy
* Considered by: Moon, C.J., Wakayama, Acoba, and Recktenwald, 93. and
circuit Judge Wilson, in place of Duffy, J., recused.
|
540a742d-0a08-4f2c-990c-c9a474431868 | In re Tax Appeal of Spirent Holding Corp. & Subsidiaries v. State of Hawaii, Department of Taxation | hawaii | Hawaii Supreme Court | No. 29199
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
In the Matter of the Tax Appeal of
SPIRENT HOLDINGS CORP. 6 SUBSIDIARIES, =|
Petitioner/Taxpayer Appellant-Appellee,
DIRECTOR OF TAXATION, DEPARTMENT OF TAXATION, STATE OF HAWAT'L,
Respondent /Appellee-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(TAX APPEAL CASE NO. 06-0100)
DER REIE! carr IT OF RARI
(By: Duffy, J., for the court!)
Petitioner/Taxpayer Appellant-Appellee Spirent Holdings
Corp. & Subsidiaries’ application for writ of certiorari, filed
on August 27, 2009, is hereby rejected.
DATED: Honolulu, Hawai'i, October 5, 2009.
FOR THE couRr:
Gonen eRe he
Associate Justice
Ronald I, Heller
for petitioner/taxpayer
appellant-appeliee
on the application
Hugh R. Jones
and Damien A. Elefante,
Deputy Attorneys General,
for respondent /appellee-
appellant in opposition
‘Thomas Yamachika
for amicus curiae
considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald,
aa.
oat
|
dc076d7b-aed3-4c32-893a-0ed7b1a92e93 | State v. Fitzwater | hawaii | Hawaii Supreme Court | LAWUBRARY
No, 28584
IN THE SUPREME COURT OF THE STATE OF HANAI‘Z. }™
STATE OF HaAZ'z, 7 =
Respondent laiatitt-appellee, he
al S
vs
ZACHARIAH IAN FITZWATER,
Petitioner /Defendant-Appel lant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFFIC NO. 1D7C-07-020562)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, J. for the court")
Petitioner/Defendant-Appellant Zachariah Ian
Fitzwater’s application for writ of certiorari filed on August 3,
2009, is hereby accepted and will be scheduled for oral argument.
‘The parties will be notified by the appellate clerk regarding
scheduling.
DATED: Honolulu, Hawai'i, September 15, 2009.
FOR THE COURT: Kee,
Paw . ‘a
Associate Justice
Taryn R. Tomasa, Deputy
Public Defender, on
the application’ for
petitioner /defendant-
appellant.
+ considered by! Moon, C.J., Nakayama, Acoba, Duffy, and
Recktenwalé, 33.
|
070a10c8-362f-4651-90c1-c606ca28fa82 | State v. Metro Club, Inc. | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 24392
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
—————
STATE OF HAWAI'L, by its Office of Consumer Protection,
Respondent /Plaintiff-Appellee,
METRO CLUB, INC., a foreign corporation, and DAVID A. KERSH,
individually and as an officer of METRO CLUB, INC.,
Defendant s-Appellants,
and
Defendant and
METRO CLUB, INC., a Michigan corporation,
‘Third-Party Plaintiff-Appellant; and DAVID A. KERSH,
Petitioner/Defendant and Third-Party Plaintiff-Appellant,
INTERNATIONAL KITCHENS, a Hawai'i corporation,
INC., dba FOGCUTTER RESTAURANT, a Hawai'i corporation,
dba KING TSIN, a Hawai'd
a Texas
wor,
RATTORIA, C&W CORPORATION,
CHURCH'S PRIED CHICKEN, INC
corporation, GANNETT PACIFIC CORPORATION,
corporation,
ba HONOLULU STAR-BULLETIN, a foreign corporation,
BETTER BUSINESS BUREAU OF HAWAI'I, INC., a Hawai'i corporation,
Respondents/Third-Party Defendants-Appellees.
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(crv. NO. 00-0-63668)
LICATION FOR WRIT
‘AND_DENYING MOTION TO CONSOLIDATE:
C.J., for the court!)
(By: Moon,
Petitioner /defendant and third-party plaintiff-
appellant David A. Kersh’s application for writ of certiorari,
and Duffy, JJ. and Cireue
«Nakayama, Acob
recused.
3 considered by: Moon, C.J.
sudge Trader, in place of Recktenald, J
filed on August 5, 2009, seeks review of the June 17, 2009 and
June 30, 2009 orders of the intermediate court of appeals. the
June 17, 2009 and June 30, 2009 orders are post-judgment on
appeal orders that are not reviewable by application for writ of
certiorari. See HRS § 602-59(b) (Supp. 2008). Therefore,
petitioner’s application for writ of certiorari, filed on August
5, 2009, is dismissed. Petitioner's motion to consolidate No.
24392 with No. 29494, filed on August 5, 2009, is denied.
DATED: Honolulu, Hawai‘i, September 3, 2009.
FOR THE COURT:
LA Justice
|
7a0285ef-dd94-41c9-991a-0efd32aa0e08 | Keliihananui v. Kam | hawaii | Hawaii Supreme Court | No, 30051
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
JANICE K. M, CHONG KELI‘IHANANUT, Plaintiff, 8)
vs. Se
DR, BRUCE. HAM, PSYCHOLOGIST AT THE gait COMME
cOnnéctionne. CoNER, Defendant. See
74
4 8
ORIGINAL PROCEEDING
ORDER
Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
upon consideration of the complaint filed in the
supreme court by plaintiff Janice K. M. Chung Keli'ihananui, it
appears that we lack jurisdiction to hear and adjudicate
plaintiff's claims of criminal malpractice, conspiracy, and cruel
and unusual punishment. See HRS § 602-5 (Supp. 2008).
‘Therefore,
IT 1S HEREBY ORDERED that the complaint is dismissed.
September 24, 2009.
GOO os ocane
Orom—a
Une mandy
Mie fe (een toxtef
Honolulu, Hawai'i,
bate:
oats
|
677c3484-1380-4c9b-8ed6-551e794f31e7 | State v. Rivera | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29113
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
SADE OF BAEAI'T, Respondent/Plaintite-Ampelieg!
vs st 8
: ae 8 |
BEUAUN RIVERA, oR., Petisioner/Sefendant-Appeyiage. FF
ae 2
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 7
(eR. No. OYe1-0119)
for the court’)
(sy: Recktenwald, J.
Petitioner/Defendant-Appellant Benjamin Rivera, Jr.'s
2009, is
application for writ of certiorari filed on August 19,
hereby rejected,
September 29, 2009
DATED:
Monotutu, Hawai'i,
ror THe courr: —
Ps &. Mecbtmw ef
. SEAL *
SY
Associate Justice
s
oF ww
‘Taryn R. Tomasa,
Deputy Public Defender,
on the application for
petitioner /defendant-
appellant.
+ considered by: Moon, C.J., Makayana, Acoba, Duffy, and
Recktenwalé, J0-
|
d3b7bdfb-413d-49bd-902b-b3932bd866bd | State v. Greywolf | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29293
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'T,
Respondent /Plaintiff-Appellee
CHRISTOPHER R GREYMOLF,
Petitioner/Defendant Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE No. 17108-4366)
(By: Acoba, J., for the court")
‘The Application for Writ of Certiorari filed on
July 27, 2009 by Petitioner/Defendant-Appellant Christopher R.
Greywolf is hereby rejected.
DATED: Honolulu, Hawai'i, August 20, 2009.
ror THE couRT: - DB
QP 7-* EAL
{associate Justice
Craig W. Jerome,
Deputy Public Defender,
on the application for
tioner/defendant-appellant.
+ Considered by: Hoon, C.J., Nakayama, Acobs
Circuit Judge Crandall, in place of Recktemmala, J-y 7
dusty, J9., and
4
|
9cd9a163-ca39-494f-90f2-862c50e0ce4c | Pflueger v. Valenciano | hawaii | Hawaii Supreme Court | No. 30045
130 6002
IN THE SUPREME COURT OF THE STATE OF HANAI'I
arn
JAMES H. PFLUEGER, Petitioner,
8056 wy
E |
THE HONORABLE RANDAL G.B. VALENCIANO, JUDGE OF THE CIRCUIT
COURT OF THE FIFTH CIRCUIT, STATE OF HAWAI'I; and
DEPARTMENT OF THE ATTORNEY GENERAL, STATE OF HANAT‘L,
Respondents.
ORIGINAL PROCEEDING
(CR. NO. 08-1-0280)
ORDER
(By: Moon, C.J., Nakayama and Duffy, JJ.; and
Acoba, J.” and Circuit Judge Hifo, in place of
Recktenwald, J., recused, Dissenting)
Upon consideration of the petition for a writ of
mandamus filed by petitioner James H. Pflueger and the papers in
Support, it appears that the denial of the disqualification of
the Attorney General as prosecutor in Cr. No. 08-1-0280 is
reviewable on a appeal from a judgment of conviction, should such
a judgment be entered in Cr. No, 081-0280, and petitioner fails
to demonstrate that immediate review of the disqualification
matter is necessary to prevent harm that cannot be remedied on
appeal. Therefore, petitioner is not entitled to mandamus
relief. See Kema v, Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334,
338 (1999) (A writ of mandamus is an extraordinary remedy that
will not issue unless the petitioner demonstrates a clear and
indisputable right to relief and a lack of alternative means to
redress adequately the alleged wrong or obtain the requested
action.); Wong v. Fong, 60 Haw. 601, 604, 593 P.2d 386, 389
(1979) (a writ of mandamus will issue from the denial of
disqualification of counsel where irreparable and imnediate ham
would otherwise result); Chuck v. St, Paul Fire and Marine
Insurance Co., 61 Haw. $52, 560, 606 P.2d 1320, 1325-26 (1980) (a
weit of mandamus will issue from the disqualification of counsel
there the petitioner will be irreparably harmed by the delay
associated with the ordinary appellate process).
Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai't, october 30, 2009.
Fon
Beste be
hee 1
Cron. Polis y+
|
6616b715-1700-4055-85bc-1098e063c8af | Office of Disciplinary Counsel v. Narimatsu | hawaii | Hawaii Supreme Court |
No, 30038
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL, Petitionest
3
8
CURTIS 7. NARIMATSU, Respondent. =
ORIGINAL PROCEEDING
(ope 07-157-8617, 07-158-8618, 07-159-8619, 08-061-8704,
08069-8712, 08-072-8715, 09-05-8728, 09-06-8729, 09-007-8730,
09-010-8733, 039-046-8769, 09-051-8774, 09-052-8775, 09-053-8776,
039-054-8777, 09-055-8778, 09-056-8779, 09-057-8780, 09-058-8781,
09-05-8782, 09-060-8783, 09-061-8784, 09-062-8785, 039-070-8793,
(093-071-8794, 09-076-8799)
ORDER OF INTERIM SUSPENSION
(By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenvald, JJ.)
Upon consideration of the Office of Disciplinary
Counsel’s petition for the interim suspension of Respondent
Curtis 7. Narimatsu from the practice of law pursuant to Rule
2.23 of the Rules of the Supreme Court of the State of Hawai'l
(RSCH), the memoranda, affidavits, and exhibits in support, and
the record, it appears the Office of Disciplinary Counsel has
presented sufficient evidence that Respondent Narimatsu may have
violated the Hawai'i Rules of Professional Conduct and poses a
substantial threat of serious harm to the public. Therefore,
IT IS HEREBY ORDERED that, pursuant to RSCH 2.23(b),
Respondent Curtis T. Narimatsu’s license to practice law in the
State of Hawai'i is suspended, effective upon entry of this
order.
IT IS FURTHER ORDERED, notwithstanding RSCH 2.23(4),
that Respondent Narimatsu shall promptly notify, by registered or
certified mail, return receipt requested, each of his clients
involved in pending litigation or administrative proceedings, and
the attorney or attorneys for each adverse party in such matter
oad
or proceeding, of his suspension and c inability to act
as an attorney after the effective date of his suspension. The
notice shall advise §
desirability of the prompt substitution of another attorney or
jespondent Narimatsu’s clients of the
attorneye in his place. Respondent Narimatsu shall comply with
all other requirements of RSCH 2.16.
IT IS FINALLY ORDERED that the Clerk shall forthwith
dist.
bute to all judges copies of this order
DATED: Honolulu, Hawai'i, September 22, 2009.
ae
Rice CON eboey Ore.
Lames, Cnet
Mw E Neaiermof
|
e2033478-fc97-40fc-bdcc-26de289ac67f | In re Honolulu Community-Media Council, Society of Professional Journalists, Hawaii Chapter | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West's Hawaii Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
.000-
In the Matter of the
HONOLULU COMMUNITY-MEDIA COUNCIL, SOCIETY OF
PROFESSIONAL JOURNALISTS, HAWAI‘T CHAPTER,
Petitioner.
no. 30046 qg 8
y 2
ORIGINAL PROCEEDING te -
(Motion for Waiver of Copying Fees) - ~
z
SEPTEMBER 11, 2009 -
MOON, C.J., NAKAYAMA, ACOBA, DUFFY, AND RECKTENWALD, JU:
Per Curian. By means of an August 28, 2009 letter to
the Chief Justice, the Honolulu Community-Media Council and the
Society of Professional Journalists (Hetitioners) seek waiver of
fees for copying judicial financial disclosure statements. we
accept the letter as a ‘motion for waiver of copying fees’ in an
original proceeding and deny the motion.
‘he Petitioners made similar requests in February and
March 2003. The requests were denied by order of this court on
March 13, 2009. ‘The March 13, 2009 order concluded that
Petitioners had failed to state good cause for waiver of the
copying fees. In support of the current request for waiver of
copying fees, Petitioners assert they have obtained an opinion
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
from the Office of Information Practices (OIP) that concludes
judicial financial disclosure documents are subject to the
uniform Information Practices Act (UIPA), chapter 92F of the
Hawai'i Revised Statutes. Petitioners argue it is in the public
interest, as defined by Hawai‘i administrative Rules (HAR)
§ 2-71-32(b) to waive the copying costs. As
cussed below, we
conclude that the OrP’s guly 8, 2009 menorandun opinion is wrong.
‘The records of Judicial Financial Disclosure statements
are not mere "administrative records concerning the management of
personnel subject to disclosure under the UIPA.* The oIP
concludes that Judicial Financial Disclosure statements are
records related to the supreme court's executive or
administrative functions. However, Judicial Financial Disclosure
Statenents are judicial records, created and governed by Rule 15
of the Rules of the Supreme Court of the State of Hawai'i (RSCH),
promulgated by this court pursuant to its inherent and
constitutional judicial authority to regulate judges. The
records created by RSCH Rule 15 form an evidentiary basis for
motions to disqualify judges and justices and may also provide
evidence that can be used to discipline judges and justices. The
authority to promulgate rules and keep records with regard to
judicial qualification and discipline matters (1) fall within the
scope of the court's power to adjudicate, and (2) is inherently
intertwined with such adjudicative power. Therefore, the rules
and records are not subject to HRS chapter 92F nor OIP review.
cf. Ince Kading, 235 N.W.2d 409, 412 (Wis. 1975) (adoption of
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
judicial code and financial disclosure rule were actions
performed by the supreme court under its inherent power to
function as the supreme and superintending court)
We have previously noted that the separation of powers
doctrine ‘is intended to preclude a commingling of
essentially different powers of government in the same hands and
thereby prevent a situation where one department would be
controlled by, or subjected, directly or indirectly to the
coercive influence of either of the other departments." See,
g.g., Pray v. Judicial Selection Comm'n, 75 Haw. 333, 353, 861
P.2d 723, 732 (1993) (internal quotation marks and citations
omitted); cf. Bester v. Louisiana Supreme Court Committee on Bar
Admissions, 779 So. 24 715, 721 (La. 2001) (*the inherent powers
doctrine exists as a protective mechanism to ensure our
independence as the head of a separate branch of state
government"; declining to apply public records law to bar
admission records) .
In our tripartite system of government, judicial
functions, such as promulgating rules and keeping records with
regard to judicial qualification and discipline matters, are not
subject to interference by an executive administrative agency.
Qudicial Financial Disclosure statements are subject to
disclosure under RSCH Rule 15(g), not the UIPA. Thus, HAR
§ 2-71-32(b) is not applicable. Accordingly, with regard to
records created through the exercise of our inherent and
constitutional judicial authority to regulate judges, we cannot
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
permit the OIP to “control . . . or subject [thie court],
directly or indirectlyl,] to [its] coercive influence." Bray, 75
Haw, at 353, 961 P.2d at 732 (internal quotation marks and
citations omitted)
‘The supreme court is currently seeking comments
regarding revisions to RSCH Rule 15 and the financial disclosure
statement form, anticipated to be adopted effective January 1,
2010, The recent and anticipated amendments to the form are
designed to make necessary disclosures while protecting the
safety and security of judges and their families. Judges will be
required to make their financial disclosures on the revised form,
‘The disclosures are due on or before April 30, 2010, These
disclosure statements will be posted on the judiciary’s website
thereafter.
With regard to Petitioner’s motion, this court may
waive copying fees upon a showing of good cause under Rule 45(e)
of the Hawai'i Rules of Appellate Procedure. In determining
whether good cause exists, this court requires applicants to make
a credible showing of indigency. Petitioners have failed to
establish indigency, and accordingly, the motion for waiver of
the copying fees is denied.
|
629cc21e-33db-4c84-ae4f-d29ce2979ef5 | Liberty Mutual Insurance Company v. Sentinel Insurance Company, Ltd. | hawaii | Hawaii Supreme Court | No. 27429
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
LIBERTY MUTUAL INSURANCE COMPANY,
Petitioner/Plaintiff-Appellant /Cross-Appellee,
SENTINEL INSURANCE COMPANY, LTD. and HARTFORD INSURANCE GROUP,
Respondent s/Defendants-Appellees/Cross-Appellees,
and
ZASHELL LABRADOR and PEMCO MUTUAL INSURANCE COMPANY; =
Respondenta/Defendants-Counterclaimants/
Appellees/Cross-Appel lants,
and
ELISA TOLFREE, et al., Defendants 23
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIVIL No. 01-1-0508)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Nakayama, J., for the court’)
Petitioner/Plaintift-Appellant /Cross~Appel lee! s
80K hd Sz any,
aaa
application for writ of certiorari filed on July 14, 2009, is
hereby rejected.
DATED: Honolulu, Hawai'i, August 25, 2009.
FOR THE COURT: ¥
Peete OT weep tre |
Associate Justice
‘Thomas Tsuchiyama for
Petitioner/Plaintiff-Appellant/
Cross-Appellee on the application
v4 byt Moon, CuJ+y Nakayama, Acoba, and Duffy, JJ., and
sakanoto, in place of Recktenwald, J., recused.
‘onside:
carcust Judge
|
49bceee1-4124-4274-a10d-9f36a5037cec | Brown v. Hawaii Medical Service Association | hawaii | Hawaii Supreme Court | no. 29627
IN THE SUPREME COURT OF THE STATE OP HAWAI'I
CAROL A. BROWN, M.D., and
CAROL A. BROW, 'M.D., "INC.
Petitioners/Plaintifis-Appellants,
HAWAII MEDICAL SERVICE ASSOCIATION,
‘a mitual benefit society;
and ALAN VAN ETTEN, Arbitrator,
Respondent s/Defendants-Appel lees.
ele Ww S2 sav 6aug
oats
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(crv. NO. 08-1-0288)
for the court")
(By! Moon, C-J-,
Petitioners/plaintiffs-appellants Carol A. Brown, M.D.,
and Carol A. Brown, M.D., Ine.’s application for writ of
certiorari, filed on July 14, 2009, is hereby rejected.
Hawai'i, August 25, 2009.
DATED: Honolulu,
FOR THE COURT:
Lo gustice
* considered by: Moon, C.J., Nakayane and Duéfy, JJ. and Circuit Judge
Alm, in place of Acoba, J-, recused, and Circuit Judge Chang, in place of
Reckvenwala, J-, recused
|
6159794b-39d6-4192-85e0-6e7a5bf8fe7a | State v. Vinhaca | hawaii | Hawaii Supreme Court | No. 28571
IN THE SUPREME COURT OF THE STATE OF HANAI'T
29
STATE OF HAWAT'T,
Respondent /Plaintiff-appellee
o3ns
ARTHUR VINHACA,
Petitioner/Defendant-Appel lant
02:2 Ne 06 easeamg
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(EC-CR NO, 06-1-0088)
(By: Acoba, J., for the court")
‘The application for writ of certiorari filed on
August 19, 2009 by Petitioner/Defendant-Appellant Arthur Vinhaca
is accepted and will be scheduled for oral argument. The parties
will be notified by the appellate clerk regarding scheduling.
Honolulu, Hawai'i, September 30, 2009.
FOR THE COURT:
DATE!
Linda C.R. Jameson, on
the application for
petitioner /defendant-
appellant.
5 Considered by: Moon, C.J., Nakayama, Acoba, Duffy, and
Recktenwald, 33
|
0560f96a-09bc-4fde-b8ba-381f48c06e74 | State v. Gonsalves | hawaii | Hawaii Supreme Court |
OF HAWAI'I, Plaintiff-Appellant,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04-1-0455)
ORDER REJECTH LICATION FOR WRIT
(By: Moon, C.J., for the court")
Petitioner/defendant-appellee Ivan Gonsalves's
filed July 6, 2009, is hereby
application for writ of certiorari,
rejected.
DATED: Honolulu, Hawai'i, august 10, 2009.
FOR THE COURT:
Ce cews
Considered by: Moon, Cut., Nakayama, Acoba, and Dut
fala, J.
Cireult Judge Nishimura, in place of Red
Gav
|
1b0cf6ae-f52b-4471-a98b-dd5edfa17291 | State v. Wheeler | hawaii | Hawaii Supreme Court | wo, 29149
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAT'T, 2 ¥
Petitioner/Plaintiff-appellee,
vs.
oats
CARSON LALEPA WHEELER,
Respondent /Def endant -Appel
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFFIC NO. 1DTA-07-07206)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, J. for the court’)
Petitioner/Plaintiff-Appellee State of Hawaii's
application for writ of certiorari filed on July 13, 2009, is
hereby accepted.
DATED: Honolulu, Hawaii, August 13, 2009
vor me coon «
Mw ©. fee tounnt )
SEAL
Associate Justice
SB y
oe ws”
Donn Fudo, on the
application for
petitioner /plaintifé-
appellee.
+ considered by: Moon, C.J., Nakayama, Acoba, Duffy, and
Recktenwald, J
|
fc00c031-7c78-4d26-9a44-879b720e606d | Rapozo v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29949
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
RICHARD B. RAPOZO, Petitioner,
STATE OF HAWAI'T, Respondent.
‘ORIGINAL PROCEEDING
ORDER <i
(By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of the petition for a writ of habeas
corpus filed by petitioner Richard 8. Rapozo and the papers in
support, it appears that the circuit court's treatment of
petitioner's June 19, 2009 petition for writ of habeas corpus as
a petition for post-conviction relief under HRPP Rule 40 allows
petitioner to seek the sane habeas corpus relief afforded under
HRS chapter 660. See HRPP Rule 40(a) ("The post-conviction
proceeding established by this rule shall encompass all common
law and statutory procedures for the same purpose, including
habeas corpus(.]"). Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall process the petition for a writ of habeas corpus
without payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
habeas corpus is denied.
DATED: Honolulu, Hawai'i, August 7, 2009.
Goren
Pel reenjane
Yrne Botts
Mot & Mele todd
oats
|
f9498df5-2721-47a2-9929-9749407a40b0 | Lighter v. Hara | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29943
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
ERIC AARON LIGHTER, Petitioner,
THE HONORABLE GLENN S. HARA, JUOGE OF THE CIRCUIT COURT
OF THE THIRD CIRCUIT, STATE OF HAWAI'I; RONALD ALAN OBER;
LESLIE W. BROWN; ‘and JAMES RIETVELD, Respondent
Jedd.
G1 ORY €1 on
ORIGINAL PROCEEDING
(CIVIL NO. 03-1-0103)
(By: Moon, ¢.J., Nakayanay Atcba, and Duffy, J3f)and
‘Intermediate Court of Appeals Judge Watanabe
in place of Aecktenvald, J. recused)
Upon consideration of the petition for a weit of
mandamus filed by petitioner Eric Aaron Lighter (petitioner) on
July 20, 2009 and the papers in support, it appears that
petitioner is seeking a ruling from this court that petitioner’ s
January 11, 2006 motion te compel discovery be ruled upon and
granted, The record indicates that the motion was granted on
January 30, 2006 by the Circuit Court of the Third Circuit, the
Honorable Gregg Nakamura (Judge Nakamura) presiding, but the
granting of the motion was set aside on May 25, 2006. Petitioner
grant” the motion on July 22, 2006,
asked Judge Nakamura to
but the request was by an unfiled letter, not by motion made
pursuant to Hawai'l Rules of Civil Procedure Rule 7(b) (1). Judge
Nakamura was not obliged to act on the July 22, 2006 letter
request that was not filed in Civil No, 03-1-0103. Petitioner
did not properly request a ruling on the motion to compel
discovery until the filing of petitioner’s June 23, 2009 request
directed to the respondent judge, who replaced Judge Nakamura as
aa
presiding judge in 2009. Defendant Ronald Ober responded to the
June 23,
09 request on June 30, 2009 and petitioner replied to
the response on July 6, 2009. Two weeks later, on July 20,
00,
petitioner filed the instant petition for a writ of mandamus
directing the respondent judge to rule on the June 23, 2009
request. The passage of two weeks after the filing of the July
6, 2009 reply is not an unreasonable period of time for ruling on
ne June 23, 2009 request and does not demonstrate that the
respondent judge is refusing to rule on the June 23, 2009
request. Therefore, petitioner is not entitled to mandamus
relief. See Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.24 334,
338 (1999) (A writ of mandamus is an extraordinary remedy that
will not issue unless the petitioner demonstrates a clear and
indisputable right to relief and 2 lack of alternative means to
redress adequately the alleged wrong or obtain the requested
action.). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, August 13, 2009.
Gor~
Pecuae O Noe ed
Poe
Gm 6 gs
Counrie K@ Wetanalee/
|
b8389c07-e608-493b-bb9b-de251f98fab8 | State v. Corder | hawaii | Hawaii Supreme Court | NO. 28877
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Petitioner/Plaintiff-Appellee,
vs.
LAWRENCE CORDER, Respondent/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR NOS. 07-1-1080, 06-1-2012, 07-1-1048)
ORDER DENYING MOTION FOR RECONSIDERATION
(By: Nakayama, Duffy, and Recktenwald, JJ.;
and Acoba, J., dissenting, with whom Moon, C.J., joins)
Upon consideration of the motion for reconsideration
filed on December 16, 2009 by Respondent/Defendant-Appellant
Lawrence Corder, requesting that this court review its opinion
filed on November 19, 2009,
IT IS HEREBY ORDERED that the motion for
reconsideration is denied.
DATED: Honolulu, Hawai#i, December 23, 2009.
Walter R. Schoettle
for respondent/defendant-
appellant on the motion
DISSENT BY ACOBA, J., IN WHICH MOON, C.J., JOINS
I dissent and would grant the motion for
reconsideration.
|
6256ef44-ad6f-4f22-93b4-f026ed46d851 | State v. Estabillio | hawaii | Hawaii Supreme Court |
STATE OF HAWAI'I, Respondent /Plain
JON CURTIS ESTABILLIO, Petitioner/Defendant-Appellant
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 06-1-0072)
ER ACCS CATION, 1E CERI z
(By: Woon, C.J., for the court’)
Petitioner /defendant-appellant Jon Curtis Estabillio’s
application for writ of certiorari, filed June 23, 2009,
accepted and will be scheduled for oral argument. The parties
will be notified by the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai'i, guly 31, 2009.
FOR THE COUR’
LOE
SEAL”
Ceo
Jui and Chreute
aa
|
8eea7085-6c46-4d70-a5e1-44f8746d6515 | State v. Ramos | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28356
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
REGINALD RANALDO RAMOS, JR., Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 05-1-0627) a
Ni 01 Er
for the court’)
(By: Nakayama, Jy
ams
a
S
Petitioner /Defendant-Appellant’s amended appl statict
for weit of certiorari filed on June 25, 2009, ts herélly
rejected.
Honolulu, Hawai'i, July 31, 2009.
FOR THE COURT:
Puamtte G. Meebee qr.
Associate Justice
DATE!
Peter Van Name Esser and
Myles 8, Breiner for
Petitioner/Defendant -Appeilant
on the application
+ Moon, C.J.» Nakayama, Acoba, and Duffy, 32.) and
srkins, in place of Recktenald, J., recused.
‘consid
cérouis Jvage
|
f8e259cb-1522-44cc-854f-69f9c646ff29 | Rivera v. State | hawaii | Hawaii Supreme Court | No. 29013
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STYRAN EDDIE RIVERA,
Petitioner/Petitioner-Appellant,
oan
STATE OF HAWAT'T,
Respondent /Respondent -Appell
len-9 Wy ez uas.qal
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO. 02-1-0037; CR. NO. 00-1-0029)
MING APPLICAT:
(By: Recktenwaid, J
Petitioner/Petitioner-Appellant Styran Eddie Rivera's
RDER
y
for the court
application for writ of certiorari filed on August 13, 2009, is
hereby rejected.
DATED: Honolulu, Hawai'i, September 23, 2009
aE
PER
FOR THE CoURT:
Pion & Ahesonet ln) *
associate Justice \S,
oe ws
oF ws
Mary Ann Barnard,
on the application for
petitioner/petitioner-
appellant.
+ Considered by: Moon, C.J,, Nakayama, Duffy, and Recktenwald, J9.,
{ Fecusea)
and Cireuit Juage Border, in place of’ Acoba, J
|
9582b7c4-a328-4f48-b883-4934d5cf9ce7 | In re Groth | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29975
IN THE SUPREME COURT OF THE STATE OF HAWAT'T)
IN RE GAYNELLE GROTH
ORIGINAL PROCEEDING
LON 70 BR LICE
(sy: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of Petitioner Gaynelle Groth’ s
Petition to Resign and Surrender License, the attached
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai'i (RSCH). Therefore,
IT IS HEREBY ORDERED that the petition is granted.
IT IS FURTHER ORDERED that Petitioner Groth shall
return her original license to practice law to the Clerk of this
court forthwith. The Clerk shall retain the original license as
part of this record, Petitioner Groth shall comply with the
notice, affidavit, and record requirements of sections (a), (b),
(d), and (g) of RSCH 2.16.
IT IS FINALLY ORDERED that the Clerk shall remove the
name of Gaynelle Groth, attorney number 3106, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order.
DATED: Honolulu, Hawai'i, August 25, 2009.
es Oath
Pe © Macks bk f
|
ec72a515-aef5-4a4d-a69f-5b865b658c04 | Karagianes v. State | hawaii | Hawaii Supreme Court |
No. 29572
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
GARY KARAGIANES,
Petitioner/Petitioner-Appel lant,
STATE OF HAWAII,
Respondent /Respondent-Appel lee
CERTIORARI TO THE INTERMEDIATS COURT OF APPEALS
(8.P.P. NO, 08-1-0008; CR. NO. 92-0340)
TION FOR,
(By: Moon, C.J., for the court)
Petitioner /petitioner-appellant Gary Karagianes’
application for a writ of certiorari, filed on July 6, 2009, is
hereby rejected.
DATED: Honolulu, Hawai'i, August 6, 2009,
FOR THE COURT:
Ge Justice
Considered by: Moon, C.J., Makayana, Acoba, and Duffy, oJ., and
Circuit Judge Wong, in place Of Recktenvald, J-, recused,
|
20126c2d-d7d6-4ffb-8076-b85bc583bf4d | State v. Nakama | hawaii | Hawaii Supreme Court | no. 28372
IN THE SUPREME COURT OF THE STATS OF HAMAT'T
STATE OF HAWAI'I,
Respondent /Plaintiff-Appellee
Oss
MAURICE NAKAMA, 3
Petitioner/Defendant-Appellant
and
Mz Hd Te sn
DANIEL JACOB MIYAMOTO, Defendant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 051-2325)
(By: Acoba, J., for the court)
‘The Application for Writ of Certiorari filed on
July 21, 2009 by Petitioner/Defendant-Appellant Maurice Nakana is
hereby rejected.
+ August 31, 2009.
DATED: Honolulu, Hawai’
FOR THE COURT:
‘Resociate Justice
Karen T. Nakasone,
Deputy Public Defender,
on the application for
petitioner/defendant-appellant.
and Duffy, 39., and
+ considered by: Moon, C.J., Nakayama, Acobs
Circuit Judge Ain, in place of Récktenuald, J.y recused.
|
c62efc9a-8cd4-4b9f-801b-837f97716b5b | State v. Jacobson | hawaii | Hawaii Supreme Court | No, 28863
IN THE SUPREME COURT OF THE STATE OF HANAI‘I
STATE OF HAWAI'I, Respondent /Plaintif£-Appellee,
BILL A. JACOBSON, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO. 2P107-01803)
ORDER PPLICATION OF centr
(By: Duffy, J., for the court
and Acoba, J., dissenting separately)
Petitioner/Defendant-Appellant Bill A. Jacobson’ s
application for writ of certiorari, filed on August 7, 2009, is
hereby rejected.
DATED: Honolulu, Hawai'i, September 18, 2009.
FOR THE couRT:
Yom «Dubey Ae
Associate Justice
David J. Peterson
for petitioner/
defendant-appellant
on the application
as
hung
UAT Yr
0d) He
su
‘considered by: Moon, C.J., Wakayama, Acsba, and Duffy, 2J., and
Circuit Judge Alm in place of Recktenwald, 2., recused.
aams
|
a2755296-3059-4797-a16c-ce6a3e5473c0 | Blaisdell v. Department of Public Safety | hawaii | Hawaii Supreme Court | NO. 30170
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
RICHARD BLAISDELL, Petitioner,
vs.
DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAI#I, Respondent.
ORIGINAL PROCEEDING
(SPP NO. 08-1-0041)
ORDER
(By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioner Richard Blaisdell and the papers in
support, it appears that petitioner fails to demonstrate a clear
and indisputable right to relief. Therefore, petitioner is not
entitled to mandamus relief. See HRS § 602-5(3) (Supp. 2008)
(The supreme court has jurisdiction and power to issue writs of
mandamus directed to public officers to compel them to fulfill
the duties of their offices.); In Re Disciplinary Bd. Of Hawaii
Supreme Court, 91 Hawai#i 363, 368, 984 P.2d 688, 693 (1999)
(Mandamus relief is available to compel an official to perform a
duty allegedly owed to an individual only if the individual’s
claim is clear and certain, the official’s duty is ministerial
and so plainly prescribed as to be free from doubt, and no other
remedy is available.).
It further appears that issuance of a declaratory
judgment is not within the original jurisdiction of the supreme
2
court. See HRS §§ 602-5 (Supp. 2008) and 632-1 (1993).
Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai#i, December 14, 2009.
|
3bc99577-6b47-4082-9bf5-376e3ec64b4c | Stanley v. State | hawaii | Hawaii Supreme Court |
No. 28811
{S ANTHONY STANLEY, Petitioner
Responde!
STATE OF HAWATT
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(cR. NO. 04-1-0049)
JECTING APPL ‘ 4
for the court")
(By: Moon, C.J.
Petitioner-appellant Charles Anthony Stanley's
filed June 8, 2009,
Honolulu, Hawai‘i, July 20, 2009.
DATED:
FOR THE COURT:
is hereby
Considered by: Moon, C.J., Nakayama, Acoba, and Dut
in place of Recktenwaid, ., recused.
a3
|
2b405290-ea0b-41ed-8f73-0b4dee8c129f | Koga Engineering & Construction, Inc. v. State of Hawaii | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28278
IN THE SUPREME COURT OF THE STATE OF HANAT
KOGA ENGINEERING & CONSTRUCTION, INC., &
Respondent & Petitioner/Plaintiff-Appellee >
O34
STATE OF HAWAI‘L,
Petitioner & Respondent /Defendant-Appel Lant.’/«
96 wi 21 say gaep
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CTV. NO, 01-1-3636-12(VSM) )
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
‘AND REQUESTING FURTHER BRIEFING
(By! Acoba, J., for the court’)
The July 8, 2008 applications for writ of certiorari
filed by Petitioner & Respondent/Defendant-Appellant State of
Hawai'i (the State) and Respondent @ Petitioner/Plaintift-
Appellee Koga Engineering & Construction, Inc. (Koga) are
accepted and will be scheduled for oral argument.
will be notified by the appellate clerk regarding scheduling.
IT IS FURTHER ORDERED that Koga shall file a
supplemental brief addressing the issue of whether the procedure
set forth in Hawai'i Revised Statutes § 1030-703 is mandatory,
and thus determinative of jurisdiction in the circuit court of
Supplemental briefing on this
‘The parties
the first circuit (the court).
issue is necessary because it has been raised for the first time
The issue
by the State in its response to Koga’s Application.
was not raised by either party before the court or the
1» Reba, and Duffy, JJ., and
1 Considered by: Moon, C.J. Naka
Circuit Judge Kin, in place of Recktenwsld, J-, recused.
Intermediate Court of Appeals (ICA), nor was
raised by the
ICR. The supplemental brief shall not exceed 10 pages in length
hall be filed by August 27, 2009,
DATED: Honolulu, Hawai"i, August 12, 2009.
and
FOR THE COURT:
oN
Associate Justice
Dorothy Sellers, Solicitor
General, and Rebecca A.
Copeland, Deputy Solicitor
General (on the Application)
and Michael Q.Y. Lau, Deputy
Attorney General (on the
Response) for Petitioner &
Respondent /Defendant-Appellant
State of Hawai'i.
Bert T. Kobayashi dr.
Christopher 7. Kobayashi
and Maria Y. Wang
for Respondent & Petitioner/
Plaintiff-appellee Koga
Engineering & Construction,
Inc.
|
3e396317-7f9f-441a-ba7b-b5321c2f2e7a | Tierney v. District Court of the First Circuit, State of Hawaii, Honolulu Division. | hawaii | Hawaii Supreme Court | Ar ia
No. 29903
IN THE SUPREME COURT OF THE STATE OF HANAI'T o
HAEL C, TIERNEY, Petitioner,
DISTRICT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I,
HONOLULU DIVISION, Respéndent
ORIGINAL PROCEEDING
(CASE NO.” 12108-06561)
ORDER GRANTING PETITION FOR WRIT OF MANDAMUS
(By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of petitioner Michael C. Tierney’s
petition for a writ of mandamus, it appears that the district
court of the first circuit received from petitioner, on November
24, 2008, a letter and other papers. The letter, inter alia,
instructed the district court to “Please file my Notice of
Appeal.” The letter’s other papers were entitled “Notice of
Appeal”, “Affidavit in Support of Motion for Leave to Proceed on
Appeal in Forma Pauperis”, and “Motion for Appointment of Counsel
on Appeal” (collectively “appeal papers”). The appeal papers
were all captioned with district court Case No. 1P108-06562 and
were all signed by petitioner and dated November 19, 2008. The
district court filed petitioner’s letter on November 24, 2008 and
entered the letter on the docket of 1P108-06561. The district
court placed the appeal papers in the file of 1P108-06561 as part
of petitioner's letter filed on November 24, 2008. The district
court did not file and process petitioner’s appeal papers.
A writ of mandamus will issue where a petitioner
demonstrates a clear and indisputable right to relief and lack
anys
of other means to redress adequately the alleged wrong or obtain
the requested action. Kema v. Gaddis, 91 Hawai'i 200, 204, 982
P.2d 334, 338 (1999), Mandamus relief is available to compel
official to perform a duty allegedly owed to an individual if the
individual's claim is clear and certain, the official's duty is
ministerial and so plainly prescribed as to be free from doubt,
and no other remedy is available. In Re Disciplinary Bd. of
Hawaii Supreme Court, 91 Hawai'i 363, 368, 984 P.2d 688, 693
(1999), citing Barnett v, Broderick, 84 Hawai'i 109, 111, 929
P.2d 1359, 1361 (1996).
The filing and processing of petitioner's appeal papers
are ministerial duties of the district court. Petitioner has an
indisputable right to have his appeal papers filed and processed.
‘The district court ignored petitioner’s request to file his
appeal papers. Petitioner has no remedy other than mandamus.
Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall process the petition for writ of mandamus without
Payment of the filing £
IT 18 FURTHER ORDERED that the petition for writ of
mandamus is granted as follows:
1, The District Court of the First Circuit, Honolulu
Division, shall forthwith: (1) file and process, in Case No.
1P108-06561, the papers entitled “Notice of Appeal”, “Affidavit
in Support of Motion for Leave to Appeal in Forma Pauperis”, and
“Motion for Appointment of Counsel on Appeal” that are part of
the letter filed on Novenber 24, 2008 in Case No. 1P108-06561;
2
ii) serve petitioner with file-stamped copies of the papers: and
ce of Appeal in accordance with HRAP 11 (b)
(414) process the No!
2. The Notice of Appeal filed by the district court
pursuant to paragraph 1 shall be deemed to have been filed
Novenber 24, 2008 for purposes of HRAP 4(a) (1).
3. The district court shall file a copy of this order
in Case No. 1P108-06561
DATED: Honolulu, Hawai'i, July 8, 2009.
Ire
eset ee CP Uereee | Mee
aoe
Guene, Duly +
SN &. Pectytn ht
|
6bf34532-13bc-4694-b845-f370c1cc6505 | In re N.C. | hawaii | Hawaii Supreme Court | Considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald,
1
JJ.
NO. 28294
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
IN THE INTEREST OF N.C., a Minor
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-J NO. 0063855)
ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI
WITHOUT PREJUDICE
(By: Duffy, J., for the court1)
On November 5, 2009, Petitioners/Parents-Appellants
(Parents) filed an application for writ of certiorari, pursuant
to Hawai#i Rules of Appellate Procedure Rule 40.1, seeking
further review of the Intermediate Court of Appeals’ June 26,
2009 summary disposition order in In re NC, No. 28294, and
October 28, 2009 judgment on appeal.
This court has previously stated that “[b]ecause
standing is a jurisdictional issue that may be addressed at any
stage of a case, an appellate court has jurisdiction to resolve
questions regarding standing, even if that determination
ultimately precludes jurisdiction over the merits.” Keahole
Defense Coal., Inc. v. Bd. of Land & Natural Res., 110 Hawai#i
419, 427-28, 134 P.3d 585, 593-94 (2006).
Additionally, “[i]n the absence of well recognized
exceptions, this court has clearly held that ‘[c]onstitutional
rights may not be vicariously asserted.’” Freitas v. Admin. Dir.
of Courts, 104 Hawai#i 483, 486, 92 P.3d 993, 996 (2004)
(footnote omitted) (quoting Kaneohe Bay Cruises, Inc. v. Hirata,
75 Haw. 250, 256, 861 P.2d 1, 9 (1993)). “Exceptions to the rule
against vicarious assertion of constitutional rights include the
right to privacy and First Amendment rights.” Tauese v. State,
2
Dep’t of Labor & Indus. Relations, 113 Hawai#i 1, 28, 147 P.3d
785, 812 (2006) (citing Freitas, 104 Hawai#i at 486 n.6, 92 P.3d
at 996 n.6); see also State v. Kam, 69 Haw. 483, 488, 748 P.2d
372, 375 (1988).
Parents do not argue that they fall within any
exception recognized by this court to the rule against vicarious
assertion of constitutional rights. Further, Parents do not
indicate why NC cannot assert his own constitutional rights, as
he did when he was represented by counsel before the Family Court
and the ICA. Indeed, NC has until January 26, 2010 to file an
application for writ of certiorari.
As Parents have not demonstrated that they have
standing to vicariously assert the constitutional rights of NC in
the questions presented to this court,
IT IS HEREBY ORDERED that Parents’ application is
dismissed without prejudice.
DATED: Honolulu, Hawai#i, December 9, 2009.
FOR THE COURT:
Associate Justice
Christopher J. Roehrig
for petitioners/parents-
appellants on the
application
|
affb68d7-13a7-48d1-8833-93b36b358752 | Suzuki v. Healthways, Inc. | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29714
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
LOLA SUZUKI,
Petitioner /Claimant Apps
road
lant,
BALTHWAYS, INC.
Respondent /Employer-Appellee,
and
SEG HV 12 1
ST. PAUL TRAVELERS,
Respondent /Insurance Carrier-Appeliee.
CERTIORARI 0 THE INTERMEDIATE COURT OF APPEALS
(CASE NOS. AB 2007-497 and 2007-498)
a PLICATION FOR WRIT OF CERTIORARI
(By: Moon, C.J., for the court")
Petitioner/claimant-appellant Lola Suzuki’s application
for writ of certiorari, filed on June 30, 2009, is hereby
rejected,
DATED: Honolulu, Hawai'i, July 27, 2009.
FOR THE COURT: r®
ope ( "SEAL
Aét Justice 2
meee ws
ral,
considered by: Moon, C.J, Nakayama, Acoba, Duffy, and Rech
on
|
6992f109-729a-4851-8b51-befbc5e9ec54 | Yasuhara v. Alm | hawaii | Hawaii Supreme Court | No. 29889
gate
IN THE SUPREME COURT OF THE STATE OF HAWAI'T-
MATTHEW YASUHARA, Petitioner, al
THE HONORABLE STEVEN S. ALM, JUDGE OF THE CIRCUIT
COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent.
ORIGINAL PROCEEDING
(CR. NO. 8-1-0391)
ORDER
(By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
upon consideration of the petition for a writ of
mandamus filed by petitioner Matthew Yasuhara and the papers in
support, it appears that bail after conviction of a felony is not
a matter of right after revocation of probation and before
resentencing. See HRS $$ 804-4 and 706-626(2) (Supp. 2008).
Therefore, petitioner fails to demonstrate a clear and
indisputable right to relief and petitioner is not entitled to
mandamus relief, See Kena v. Gaddis, 91 Hawai'i 200, 204, 962
P.2d 334, 338 (1999) (A writ of mandamus is an extraordinary
remedy that will not issue unless the petitioner demonstrates a
clear and indisputable right to relief and a lack of alternative
means to redress adequately the alleged wrong or obtain the
requested action.). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai‘i, July 8, 2009.
Yro—
Resse GM reaitiory ore
Kerme uate
Me & Meio
|
71c81b27-bfc0-402e-9e04-ed1ad0663f00 | Loher v. State | hawaii | Hawaii Supreme Court | No. 27844
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
FRANK 0, LOHER, Petitioner/Petitioner-Appellant,
STATS OF HAWAI'I, Respondent /Respondent-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(8.P.P. NO. 05-1-0067)
ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI
(By: Nakayama, J., for the court")
Petitioner/Petitioner-Appellant’s application for writ
of certiorari filed on July 7, 2009, is hereby untimely and
dismissed for lack of appellate jurisdiction.
DATE:
Honolulu, Hawai'i, August 5, 2009.
FOR THE COURT:
Pecute 0.
Associate Justice
Frank 0. Loher,
petitioner pro se,
on the application
+ Moons Cas» Nakayama, Acoba, and Duffy, JJ., and
Circuit Juage McKenna, in place of Reckrenwaid, Jv, recused.
|
ef002b14-2117-4e41-a581-90a663b728cd | Crook v. Fujino | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 29965
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
SHANNA LET CROOK, Petitioner,
THE HONORABLE MELVIN H. FUJINO, JUDGE OF FANILY COURT
OF THE THIRD CIRCUIT, STATE OF HAWAI'I, and
THOMAS NW, PACE, Respondents.
ant
ORIGINAL PROCEEDING
(FC=P No. 08-1-108K)
ORDER
Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioner Shawna Lei Crook and the papers in
support, it appears that the “simultaneous proceedings” provision
of HRS chapter 583A (Uniform Child-Custody Jurisdiction and
Enforcement Act (UCCJEA)) did not apply to FC-P No. 08-1-108K
inasmuch as: (1) HRS §§ 583A-206(a) and (b) (2006) apply when a
child-custody proceeding has been commenced “in a court of
another state having jurisdiction substantially in conformity
with the [UCCJEA]” and (2) the child-custedy proceeding conmenced
in California in GF0022980 was not commenced in the subject
child's home state, such that the California court did not have
jurisdiction substantially in conformity with the UCCJEA. see
HRS §5 583A-201(a) (1) and 563A-102, It further appears that the
Lifting of the stay of FC-P No. 08-1-108K was within the
discretion of the respondent judge and the lifting of the stay
was not a flagrant and manifest abuse of discretion. Therefore,
petitioner is not entitled to mandamus relief. See Kema vy.
Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (A writ of
mandamus is an extraordinary remedy that will not issue unless
the petitioner demonstrates a clear and indisputable right to
relief and a lack of alternative means to redress adequately the
alleged wrong or obtain the requested action. Where a court has
Giscretion to act, mandamus will not lie to interfere with or
control the exercise of that discretion, even when the judge has
acted erroneously, unless the judge has exceeded his or her
Jurisdiction, has committed 2 flagrant and manifest abuse of
discretion, or has refused to act on a subject properly before
the court under circumstances in which it has a legal duty to
act.). Accordingly,
BT 18 HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, August 7, 2009.
Gro
Pecsetee Cc ready ore
Goce Rett Br
Pd, lect Cum /
|
cdd2c46e-88d3-4f41-96ea-7ca12fb70c22 | Lemus-Perez v. Loo | hawaii | Hawaii Supreme Court | LAW LIBRAR
no. 29916
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
RAUL LEMUS-PEREZ, Petitioner, =
me
THE HONORABLE RHONDA I.L. LOO, JUDGE OF THE orsraRge cour
OF THE SECOND CIRCUIT, Stare OF HAWAL'I, Respondent. =
o3ns
ORIGINAL PROCEEDING
(CASE NO. 2DTA-07-01362)
ORDER
Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioner Raul Lemus-Perez and the papers in
support, it appears that the June 25, 2009 order resetting the
hearing date on the motion to dismiss Case No. 2DTA-07-01362 was
Signed by respondent Judge Rhonda Loo for Judge Simone Polak, the
presiding judge in Case No. 20TA-07-01362. The hearing date was
apparently reset to allow the motion to dismiss to be heard by
Judge Polak as presiding judge. Resetting the hearing date on
the motion to dismiss was within the discretion of Judge Polak
and was not 2 flagrant and manifest abuse of discretion.
‘Therefore, petitioner is not entitled to extraordinary relief.
See Kena v. Gaddis, 91 Hawai'i 200, 204, 982 P.24 334, 398 (1999)
(A weit of mandamus is an extraordinary remedy that will not
issue unless the petitioner demonstrates @ clear and indisputable
right to relief and a lack of alternative means to redress
adequately the alleged wrong or obtain the requested action.
Such writs are not intended to supersede the legal discretionary
authority of the lower courts, nor are they intended to serve as
legal remedies in lieu of normal appellate procedures. here a
court has discretion to act, mandamus will not lie to interfere
with or control the exercise of that discretion, even when the
judge has acted erroneously, unless the judge has exceeded his or
her jurisdiction, has committed a flagrant and manifest abuse of
discretion, or has refused to act on a subject properly before
the court under circumstances in which it has a legal duty to
act.). Accordingly,
I? 1S HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai't, July 13, 2009.
Gorm
Peete Oeuaeeny Ore
aN
nm Ab, Bye
Teer & Ae lebene{ /
|
22d5e4b9-88a0-4be7-b531-1477f45572ad | Save Diamond Head Waters, LLC v. Hans Hedemann Surf, Inc. ICA Opinion, filed 12/19/2008 [pdf], 119 Haw. 452. Application for Writ of Certiorari, filed 02/05/2009. S.Ct. Order Accepting Application for Writ of Certiorari, filed 03/16/2009 [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRARY
++ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
OF HAWAI'I
IN THE SUPREME COURT OF THE
‘000-==
RS LLC. a Hawaii limited
SAVE DIAMOND HEAD Wi
KAPIOLANI PARK PRESERVATION SOCIETY,
liability corporation;
LUC, a Hawaii limited liability corporations MIKE
an indi
BEASON,
and RICHARD K. QUINN,
‘an individual
rs /Rppellants-Appellees,
Petiti:
HANS HEDEMANN SURF, INC.
Respondent /Appellee-Appeliant,
=
co
SOHIKY CF nega
and
CITY AND COUNTY OF HONOLULU, by and through the
DEPARTMENT OF PLANNING’ AND PERMITTING,
Respondent /Appellee-Appellee,
and
McINERY FOUNDATION, a Hawaii corporation; and
HOTEL KAIMANA, INC., a Hawaii corporation,
Respondent s/Appellees-Appellees.
Waters,
Beason;
No. 27604
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO, 5-1-1145)
JULY 13, 2009
MOON, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ., AND
CIRCUIT JUDGE ALM, ASSIGNED’ BY REASON OF VACANCY
OPINION OF THE COURT BY DUFFY,
Petitioners/Plaintifts-Appellees Save Diamond Head
, LLC; Kapiolani Park Preservation Society, LLC; Mike
ollectively SDHW) filed a timely
and Richard K. Quinn
Application for Writ of Certiorari (Application) urging this
© FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
court to review the January 9, 2009 judgment of the Intermediate
Court of Appeals (ICA) based on its Opinion in Save D
Waters, LLC, V. Hans Hedemann Surf, Inc. (SDHW), No. 27804, 119
Hawai'i 452, 198 P.3d 715 (App. 2008). The ICA’s Opinion
lead
reversed the circuit court of the first circuit's! (circuit
court) April 19, 2006 Amended Final Judgment on Administrative
Appeal, Vacating and Modifying Decision of the Zoning Board of
Appeals Matter Number 2004/28A-04.
In its Application, SDM presented the following
questions:
1. Must a reviewing court use the de nove standard of
review to ascertain the scope of authority granted to
an administrative agency by a legislative body?
2. Goes an acministrative agency (here the [Department of
jernitting and Planning ("DE?)]} have the power to
{ft and interpret administrative rules in » fashion
contrary to the plain language of the governing
ordinances?
3. Must an administrative agency apply exieting statutory
standards when exercising its quasi-judicial function
or ray st ignore such standarde and craft new
Steasonable” standards?
4, Must the reviewing courts coneider and apply the
statutorily imposed standards in reviewing the quasi-
Judicial determinations of the agency?
5. Does an administrative agency exceed ite power by
conditioning a zoning variance on the applicant
lundertaking to fulfii1 a public police function, such
5 maintaining order on a seawall hundreds of yards
from the applicant’ s premises?
We accepted SDHi”s Application on March 16, 2009, and
oral argument was held on May 7, 2003.
‘The Honorable Eden Elizabeth Hifo presided.
2
FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
For the following reasons, we (1) vacate the ICA's
opinion and (2) affirm the circuit court's amended final judgment
fon the grounds that the Director's mixed finding of fact and
conclusion of law that the Hans Hedemann Surf, Inc.'s (Surf
School} use of the New Otani Kaimana Beach Hotel's (Hotel)
premises was a permissible change in nonconforming use was
clearly erroneous as it is not supported in the record,
BACKGROUND
AL Factual Backaround
The ICA set forth the following facts in its opinion:
Hedonann operates Hans Hedenann Surf School (Surf School], 2
commercial surfing school, at four O'ahu locations. This
Sispute relates te the surf School Located on the ‘ground
Floor (Shop #7) of the Hotel. The Hotel consists of 124
Unies and ts situated on WalkrkI beach, in che ares makas'"!
Of Kapiolani Fark and Kalakaus Avenue ‘and between Kaimana
Beach Park on the “Eval” side and various other properts
fon the opposite side.
The Hotel was constructed in 1950 and expanded in
1962, At the time it was built, the property underlying the
Hotei was toned as pare of the fotel and Apartment Oletriet
SL." This zoning district dia not allow for comercial uses
other than businesses that primarily served the tenants and
Occupants of the bulldings in unich they were located, know
a5 “accessory uses.”
# ~*Makait is a Hawaiian word meaning ‘on the seaside, toward the sea,
in the direction of the sea,’” OAM, 119 Hawai'i ar 455 n.3., 198 P.34 at 118
nl3. (quoting Mary Kawona Fukui, Sanuél #, Elbert, Hawaiian letionary, 224
(rey. ed. 1986)!
“'Ewa’ is a “{p]iace name wast of Honolulu used as a direction
kerm.’” SOM, 128 Hawaili ae 455 nev 198 B.3d at 716 n-4 (quoting Hawaiian
Dictionary at 42)
At the tine the Hotel was expanded, business uses were prohibited
within hotel and apartment districts, Revised Ordinances of Honolulu (ROH) 5
2is3. (1557). However, accessory uses were permitted 28 follows:
‘1° FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER ***
On January 2, 1969, the Comprehensive Zoning Code tock
effect. This placed the Hote! inte an Aud Apartment
District, whien did not allow hotels, “Again, only accessory
Gcanercial uses were permitted in buildings contaccing a
Biniman of $0 dvelling or lodging unite and no external
evidence of the existence of the accessory uae was
permissible
on Decenber 23, 1982, Ordinance £2-58 (the Land Use
Ordinance (400) codi fied ax ROH Chapter 21) changed the
zoning of the Hotel to ite current Av? Medium Density
Apartrent District designation. Hotel and accessory uses
fare not permitted in Ac? districts. However, because hotel
Use Was acceptable at the time of the Hotel's construction
(Clertain accessory uses incidental to and customarily
conducted within hotel and apartment districts shall be
permitted and allowed, provided they are in compliance with
Sil existing laws, ordinances, and Fegulatione spplicable
thereto. The form accessory uses” shal include, without
Liniting the generality of ts meaning, restaurants, barber
‘shops, Beauty parlors, massage studioe, haberdasheries,
Wearing apparel shops, flower shops, newestande, gift shops
and other personal service shops
ROH $ 21-3.1(a). Accessory uses were limited to apartrents and hotels with
ore than twenty rooms. RON § 21-3.1(a) (1)- Additionally, the “personal
shops and businesses shall be operated prinarily as a service to and for the
Convenience of the tenants and occupants of the building in which such
srvices are located(.)" KOM § 21-3.1(a) (2). Further, no doors, entrances,
signs, adverticanents, or displays could be locates on the exterior of she
Baildings. ROW § 21-3.1(a) (3)~(4) +
follow
“Accessory use" is currently defined
“Accessory use” means a use which meets the following conditions
(1) Tea use which is conducted on the same zoning let as the
principal use to which it is related uhether located within
fhe same building or an accessory building or structure, oF
a5 an accessory use of Lend)
(2) 2s clearly incidentat to and customarily found in connection
with the principal usey and
(3) Te operated and maintained substantially for the benefit or
convenience of the cuners, occupant, employees, custoners
of visitors of the zoning lot with the principal use.
Land Use Ordinance {100} § 21-10.1 (1990),
‘
**¢* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
land the Hotel has continued to b
Survives cea nonconforming use.
used as @ hotel, hotel use
The record is unclear as to when the Hotel's use of
Shop #7 ended and its use for commercial purposes began. As
early as. 1993, other commercial tenants used shop #) to rent
fut kayaks, body boards, ‘surfing and other seach equiprent
‘The record fails to establish wnether the prior rental
businesses constitutes an accessory use ora non-accessory
se, iver, whether the customers of these Basineases were’
prinarily’notel guests or the general public.
Hedesann began renting Shop #7 en January 1, 2002.
Hodemann both rents and sells equipment bot primarily wes
fhe space aa “an assembly point for its clients.” A
Scubstantiai partion” of Hedenann’ s custoners are Brought
the location via shuttle from other Waikiki locations. At
Shop #7, students are iseved surfboards and they use the
Hotei's’ property outside Shop #7 to reach the ocean, where
Surfing Lessons are conducted.”
Although shop #7 had been previously used to rent
ocean equipment, Hedensnn's use Sf Shop #7 genezates
“widespread Local opposition.” Tt ia onclear from the
record when that opposition began, but a petition signed by
approximately 700 people objecting to the Surf Schools
activities was submitted during these proceedings. Zn.
Particular, area residents conplained of noise, congestion,
Parking issues, vandaiion, erespassing and “other ili:
Eaused by the Surf school
* At the time the LUO changed the zoning of the Hotel, “a
nonconforming use” was defined a5
Any use of 2 structure or zoning lot which waa previously
Lawful but which does not conform to the applicable use.
regulations of the district in whicn it is loceted, either
fon the effective date of this Chapter or as a result of any.
Subsequent anendnent
wo Art, IX, (1983 ed.)
The current definition of “a nonconforming use” ss:
‘Nonconforning use" means sny use of a structure or a roning
ot which was previously lawful but hich does not conform
to the applicable use regulations of the district in which
it ig Located, either on October 22, 1986 or az a feault of
lany subsequent amendment to this chapter [LUO], or 2 zoning
nop amenament
wo $ 21-10.1,
“*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
‘SOHW, 119 Hawai'i at 454-56, 198 P.3d at 717-19 (some footnotes
omitted).
B. The Director's Declaratory Ruling
On March 4, 2004, SOHW filed a petition for a
declaratory ruling from the Director of the City and County of
Honolulu Department of Planning and Permitting (DPP) on whether
the Surf School “operates in compliance with the regulations of
the zoning ordinance for nonconformities.” In beginning his
analysis, the Director set forth the provisions of the Land Use
Ordinance (LUO) that relate to nonconforming uses. He quoted LUO
§ 21-4.110(c) (1), which states that
A nonconforming use shall not extend to any part of the
Structure or lot which wae not arranged or deeigned for euch
Use at the tine of adoption of the provisions of thie
Chapter or subsequent anenanent; nor shall she nonconforming
lise! be expanded in any manner, of the hours of operation
Increased: Notwithstanding the foregoing, a recrestionsl
lise that is accessory to the nonconforming use may Be
expanded or extended if the following conditions are met:
() The recreational accessory use will be expanded ox
extended to a structure in wnich a permitted use aso
{S'being conducted, whether that structure is on the
sane lot or an adjacent lot; and
(B) The recreational accessory use is accessory to both
the perritted ee and the nonconforming wee.
The Director then quoted LUO Sec. 21-4.110 (c) (4), which governs
changes in nonconforming uses, states that
Any nonconforming use may be changed to another
Ronconforming use of the same nature and general impact, ox
to a more restricted use, provided chat the change toa nore
restricted use gay be sade cnly if the relation of the use’
Xo_she surcounding property ie auch thet adverse effects on
‘Bocubants and -nelanbarina progert ies Mil nat oe srester
shat_if the ofiains! nonconforming use contanued.
6
*** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *
(Emphasis in original.)
The Director firat found that the Surf School was not
an accessory use of the Hotel because “{mjost of the students are
not guests of the on-site hotel.” See LUO § 21-10.1 (" ‘Accessory
use’ means a use which . . . [i]s operated and maintained
substantially for the benefit or convenience of the owners,
cccupants, employees, customers or visitors of the zoning let
with the principal use."). Rather, the Director concluded that
“the use should be considered an ‘office’ since the primary on-
site activity is the assembly and registration of students and
the distribution of surf boards to then.”
‘The Director further found that the Surf School was not
an expansion of a nonconforming use prohibited by LUO §
21-4.110(c) (1). He reasoned that the Surf School did not involve
“a new structure or the physical expansion of an existing
structure” and the hours of the surf school -- 8:30 a.m. to
Pom. == could not be considered an expansion of the Hotel's
‘twenty-four hour operation. Instead, the Director found that
“the establishnent of a surf school on the site more properly
represents a ‘change in use,’ rather than an ‘expansion’ of the
nonconforming us
To frame his analysis of whether the Surf School was a
permissible change in nonconforming use, the Director stated that
“+ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
current soning regulations clearly permit changes in
nonconforming use under LUO Section 21-¢.110(e) 14), provided
‘the change in use does not result in greater adverse effects
for occupants and neighboring properties. This means that
any of the ground-flocr commercial uses on the site
Considered principal uses, including the surf school,
Permissible so long as their impact on surzcunding
Properties is no greater than that of the hote! use,
‘The Director Limited the adverse effects under consideration to
the “adverse effects on the various land uses within the
neighborhood, including the seawall, rather than on the ocean
itself.” The Director noted that “(t]he LUO does not stipulate
criteria that must be applied to changes in nonconforming use in
order to determine whether a greater adverse effect will occur,
80 changes in nonconforming use must be evaluated on a
case-by-case basis.” As a result, he analyzed the nonconforming
use issue according to the framework provided by “Interpretation
No. 88/INT-6, issued by the DPP on December 19, 1988, [which]
addresses how changes in nonconforming use can be evaluated by
providing guidelines for decision-making on whether a proposed
change in use may involve greater adverse effects.” The
interpe
fon how to defin
ation number £8/INT-6 (Decenber 19, 1986) provid
‘sane nature” and "more restricted use":
guidance
Each change in use shall be evaluated on a case-by-case basis,
ting the following guidelines for decision-making?
Hours of operation Are the hours longer or changed in 9
Way which say create conflicts with
Surrounding conforming uses?
Chientele volume Are nore clients or visitors
Gxpectes to be attracted to the
site?
the parking standard higher, or
the parking demand expected to be
Parking
e
8" FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
following portions of the Director’s analysis are most relevant
to the dispositive issue of this appea:
School's use of the Hotel's premises was a permissible change
whether the surt
nonconforming use under the LUO. As analyzed by the Director:
eestNt-6
2. GLdentele Volume: Information available to the DFP
Concerning tne hanber cf sur! school customers
(students) indicates that class size varies greatly.
For purposes of this Analysis,
‘Sci school cpersting on the araunds of the note:
should be _nodreater than iit operated a2 an
‘Aocessary use of the hotel At issue then Te the
Tevet of activity or intensity of ase which results in
Greater adverse effects. OPP staff observed no
Significant impacts associated with the surf school
ietivities on the morning they conducted their site
Sisit. At that time, there were only 4 students in
the class. “On the other hand, @ large nunber of
Complaints from area residents, over a sustained
period of tine, clearly indicates that there are
Bdverse effects associated with the surf school's
activities, particularly when class size is Large.
Relevant sulsances include noise (shouting and
yelling) and congestion at the seawall. further, it
would be difficuit to find that a class savolving 30
£0150 students would be typinal for sn accessory use
sia l2éunit note).
higher?
Traffic Will" the new use attract heavier
vehicles or greater frequency of
vehicle ceips?
Noise Te more noise expected? During aight
hours?
Compared to the previous
non-conforming use, is the proposed
Use compatible with existing
Surrounsing uses? Wish conforming
Adjacent
Nonconforming commercial accessory uses in Waikiki would be
allowea to continue even if the Duilding is converted ts
apartment. us
oacenber 19, 1988)
0 FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
‘The DPP is not aware of any historical adverae effects
associated with the operation of the nonconforming hotel on
the site similar to those associated with the surf school
Felative to noise, seawall congestion, and tncompatibilitii
With surrounding and conforming uses on the properties in
the surrounding neighborhood. the relationship between the
surf schosl and these adverse effects are apparently
Associated with large surfing class site, and should be
Controlled by limiting class size. If the adverse effects
Gan be controlied by limiting clase sie, than she sure
achool's activities should aot have an inpact areater than
i itns| curt schesl cperated ae accectory ase of the hotel.
The clase site should be Limited to no more than Tz students
er Session, and no more than 3 sessions per day. The surf
School operator should also take appropriate actions te
Binimize congestion along the seawell edjacent to the
Shoreline in the vicinity of ite activities during the
periods of ita surfing insteuction.
Finally, it is the operator's responsibility to comply with
these Controls. Failure to comply may necessitate
reevaluation by the DFP concerning its conclusions about the
ability to mitigate the related adverse effects of the surf
School on the surrounding neighborhood. If the adverse
effects cannot be adequately controlled a discussed herein,
then the conclusions reached by this Analysis may need to be
revised accordingly, and, a conclusion that this particular
Shange in nonconforaing use cannot be permitted under any
Eondstscne.
(Emphasis added.)
Based on the above analysis, the Director made
conclusions of law which stated, in relevant part,
F, Since it constitutes a principal use, the surf school
festablishnent on the site shail be considered a change in
fonconferming use for the comsercial space specifically
identified ag Shop No. J. The change in use 13 from a
principal hotel to office use.
There is adequate evidence that the surf school
tablishment can involve greater adverse effects (in
Particular seawall congestion, noise, and
Unconpatibiiiey with surrounding residential end
apartment uses) cn surrounding properties within the
Beighborhood when the size of a surfing class is £00
large.
The change in nonconforming use, which occurred at the
Jocation identified as shop No. 7, has the potential
For greater adverse effects than if the hotel use of
10
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
that location been (sic) continued, ox a
Soetated a2 an accessory use of the Reter
Recordingiy, the change In use shall not be permitted
pursuant co LUO Section 21-4-110(e) (¢) unless the
Size of the surfing classes can be limited such that
the adverse effects are no longer a problem. This
Limit shall be 12 students per class and 3 classes pei
Gays equated to a maximum clase size of 18 people (52
Students ang 3 instructors). If the intensity of use
should ever exceed this level, then it shall
Constitute a soning vielation of 00 Section 21-
Elio (c) (41, and the establishment and/or Landowners
Gf lessees shall be subject to appropriate enforcement
seticn,
(Emphasis added.)
The Director’s Declaratory Ruling stated:
The Hans Bederann Surf Schcol may operate on the site as a
permitted change in nonconforming use (fren hotel to
bffice), subject to the provisions of 100 section 21-
4.110(c} (4), provided:
A, Its related surfing instruction operations shall not
at any time exceed a maximum size af 12 students per
Glass, and 3 classes per day: ang
B. The surf school operator shall take appropriate
actions to insure that the seawall adjacent to the
Shoreline in the vicinity of its operations is kept
free of congestion during its periods of instruction.
C. The Zoning Board of Appeals Decision
SDHW timely appealed to the Zoning Board of Appeals
(2BA) on June 29, 2004. The ZBA subsequently conducted a
contested case hearing pursuant to the ZBA’# rules and the
Administrative Procedure Act, Hawai'i Revised Statutes (HRS)
chapter 91, The 28A affirmed the Director's Ruling:
22, the Director's Ruling was not based on an
erroneous finding of material face and was not an aroitrary
Sr capricious (sic), nor did the Director abuse nie
discretion in concluding that (Hedenana)'s use of the Stop
fon the {Hotel} Property is 2 permitted change in
nonconforming use.
a
© FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
13, the Director*s determin: Hedemann) =
luce of the Shop [# 7] on the [aotel] Property as an office
for surfing instruction, subject to conditions war not Based
on an erroneous finding of material fact, was neither
"ous, Ror an abuse of hit dsscretion,
Pe ‘ “ or.
SDHW appealed to the circuit court. The circuit court
vacated the 2BA’s decision “insofar as it allows the operation of
a commercial surf school at [the Hotel).”
The circuit court focused on “whether the Director has
the power to grant a WO § 21-4.110(c) (4) exception by crafting
‘conditions’
in this case by imposing volume restrictions on
new use -- to mitigate any greater adverse effects on surrounding
Properties."” After considering the issue de nove, the circuit
court made the following conclusions of 1:
14, lhether the Director has the authority under the v0
and the City Charter to craft “conditions” to's change ia
Aonconforming use in order that the adverse effects on
Aeighboring properties will not be greater than the original
henconfarming use, and thereby bring a change in
onconforning use within the ambit sf the 1JO § 21-6,120(e),
Exception, is 9 Legal question subject to ge news review.
Yt requires the interpretation of the governing statutes,
including the L00'and the Honolulu Revised city Charter.
‘The circuit court did not reach the other issues in SDifi's appeal:
23, the Court, in Light of its decision here, does
not re: ised by Petitioners, including the
Tgufulnese of (1) the delegation by the Director of nis
authority co a private entieyi (2) the Direstor®
determination that the change from a Rotel uae to 6
commercial use and then a change from an accessory,
Commercial use to a non accessary commercial [sic] do not
constitute a forbidden “expansion of use”; and (3) she
Director's finding that the nonconforming surf school use
was of the “sane nature and general impact” as the hotel
2
“+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
15. No provision of the City Charter grants the Director
the power to craft conditions to anelisrate adverse effects
bf atehange in nonconforming use on neighboring properties,
80 that the L00 § 21-¢.110(2) (4) exception can be used
16. No provision in the 100, and particularly LUO $
284.2010) gives the Director the power to craft
Conditions to’aneliorste adverse effects of a change in
Renconforming ose on neighboring properties go thar the 10
$ 21-4-110(c] (4) excepeion can Be used. The ordinance
implies the opposite: “strict Limits are placed on
Ronconforming dacs to discourage the perpetuation of these
Uses and thug facilitate the timely conversion to conforming
17. the Director interpreted the LUO § 21-4.110(c) to
permit a change {rom one nonconforming use to a new
Ronconforming use, notwithstanding adverse effects from the
Renconforming uae, subject only to conditions he imposes ts
TiSie"Sacn adverse eetects.
18. The Director's interpretation of the 100 grants
broad authorsty to himself 20 allow certain variances by
eratting his omn conditions. this interpretation
contradicts the City Charter, which imposes a detailed
Fegulatory achene for allowing variances,
19. The Land Use Ordinance is subordinate to the city
Charter. Any interpretation of the 100 which conflicts with
the Charter ie contrary to law:
‘The proposition is self-evident that an ordinance must
Contorm to, be subordinate ts, not conflict with, and
pot exceed’ the charter, and can no more change oF
Limit the effect of tho charter than a legssiative act
can modify or supersede = provision of the
Constitution of the state. Ordinances must not only
Conform with the express terms of the charter, but
they must not conflict in any degree with its object
Sr with the purposes [of the charter).
Mazeie vs 09 Soto, 80 Haw. 425, 431, 911 P.2d 60, 66 (1996),
citing, Fasi-y. City council, 72 Haw. 513, 518, 623 P.2a
242, 744 (1992). Resord, Nedabborhood Boatd Now 24 Waianae
Coaae) v, State Lana Use Conmission, 6¢ Haw, 265, 639 P-2a
i037 (1982).
20. ‘They the Director's interpretation of the LUO to
‘Allow a 100 $ 21-4.110(c) (4) exception notwithstanding
Soverse effects of the new nonconforming use on the
Reighboring parcels and occupants, was in violation of the
Orainance itself, in violation of the Revised City Charter,
exceeded the Director's authority and the jurisdiction of
the agency and the Director's order was made upon unlawful
procedure. Accordingly, the detersinations of the Director
13
“+ FOR PUBLICATION IN WEST'S HAWAL'I REPORTS AND PACIFIC REPORTER ***
and the ZBA below were contrary to (1) the LUO and (2), the
Revises City Charter and (3} in excess of the Director's
authority. Pursuant to HRS § 91-18(1), (2) and (3), the
determinations of the 28h are overruled.
22.{aic] The Director's failure to follow the LUO and
the Honolulu Revised city Charter has allowed the surf
school's operation to continue in spite of she adverse
Impacts caused by such operation, Given the amount of
Raterials supnitees in the record cataloguing adverse
Gmpacts associated with the surf school and the Lengthy
period the surf school has been operating on the Eraperty,
the Court finds that substantial rights of che Fetseioners
have been prejudiced,
In the circuit court's Amended Final Judgment on
Administrative Appeal, Vacating and Modifying Decision of the
Zoning Board of Appeals Number 2004/ZBA-04, it stated that:
Pursuant to Hawal'l Revised Statutes § 91-14, it Le hereby
ordered, adjudged, and decreed that (SOHW)"S appeal is
Granted and the court. hereby’
Vacates the June 3, 2005 decision of the (204)
c"insofar az it allows the operation sf 2
Commercial surf school operation at or,on
{Hotel’s property] in derogation of it's a-2
Medium Density Apartment District Zoning
Modifies the June 3, 2005 decision of the 8A in
428A matter ‘munber 2008/28A-08, by inserting the
following:
The Director of the Department of Planning
3nd Permitting’s declaratory ruling that
the Hans Wedesann Surf School may operate
on the grounds of the New Otani Kaimana
Beach Hotel (sic) a permitted change in
Roneonforning use (from hotel to office) ,
Subject to the provisions on [sic] ROH §
2i-dtio(e), was arbitrary and/or
capricious and constituted an abuse of
Giberetion,
Orders Respondent /Appellee city and County of
Monolutu, by and through the Zoning Board of
Appeals and the Departeent of Planning and
Permitting, to take all necessary actions te
effectuate this orser{-)
(Some internal capitalization modified.)
u4
“*** FOR PUBLICATION IN WEST'S HAWAL'I REPORTS AND PACIFIC REPORTER ***
The Surf School appealed to the ICA. The ICA reversed
the circuit court's judgement, concluding that the Director had
discretion to grant the impact-aneliorating conditions and did
not abuse his discretion in finding that the Surf School's use
Shop # 7 constituted a valid change in nonconforming use of shop
# 7 because the “ruling was reasonably based on the evidence
before the Director and constituted a reasonable application of
the applicable zoning ordinance and the DPP’s previous
interpretation of that ordinance.” SDHM, 119 Hawai'i at 465, 198
P.3d at 728.
IT. STANDARDS OF REVIEW
A. Appeal from the ZEA
The ZBA As the administrative agency designated to hear and
Geternine appeals from the director’s actions. in the
administration of the City and county of Honolulu zoning
cose.
ip 77 Howat 168, 175, 683 Pea 623, 656 (1394) -
Thue, she 28's order was sn acministrsvive decision subyect
to review by the circuit court. Hawai Revised Statutes
(BRS) § 91-14 (2).
Windward Marine Resort, Inc. v. Sullivan, 86 Hawai'i 171, 177,
948 P.2d 992, $98 (App. 1997).
Review of a decision made by theo:
review of an agency's decision
Whether the circuit court wae right oF wrong in ite
Secision, applying the standards set fereh in HRS § 91-1
(1993) £0 tne agency’s decision.
Citizens Against Reckless Dev. v. Zoning Bd, of Appeals, 114
Hawai‘l 184, 193, 159 P.3d 143, 153 (2007) (citing Korean
35
“+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
mple of zu Livan, 87 Hawai'i 217,
229, 953 P.2d 1315, 1327 (1998), HRS $ 91-14(g), “Judicial
review of contested cases,” provides:
(a) Upon review of the record the court may affirm the
Gecision of the agency of remand the case with instructions
for further proceedings; or it may reverse oF modify the
snd order if the substantial rights of the
petitioners may have been prejudiced because the
Sdsinistrative findings, conclusions, decisions, or orders
(2) tn violation of constitutions
provisions; or
or statutory
(2) th excess of the statutory authority oF
jurisdiseion of the agency’ oF
(3) Made upon ui
awful procedure: or
(a) Affected by other error of law oF
(3) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
Fecord; of
(6) Arbitrary, or cepricious, of characterized by
abuse of discretion or clearly unarranted exercise of
Siseretion.
HRS § 91-14(g) (1993). “*Under HRS § 91-14(g), conclusions of
law are reviewable under subsections (1), (2), and (4)+ questions
regarding procedural defects are reviewable under subsection (3);
[findings of fact] are reviewable under subsection (5); and an
agency’s exercise of discretion is reviewable under subsection
(6)."" Paul v. Dept sp., 115 Hawai"i 416, 426, 168 P.30
546, 556 (2007) (internal brackets omitted) (quoting Konno v.
County of Hawai'i, 85 Hawai'i 61, 77, 937 P.2d 397, 413 (1997).
“A conclusion of law that presents mixed questions of fact and
law is reviewed under the clearly erroneous standard because the
16
‘*** FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER ***
conclusion is dependent upon the facts and cir
metances of the
particular case.” esh Produce (Hawaii), tne.
Internati
al_Longsh wi y ocal 142, AFL-CI0,
112 Hawai'i 489, 499, 146 P,3d 1066, 1076 (2006) (internal
brackets and quotation marks om:
ed) (quoting Brice v. Zoning
Bd. of L gi ty of Honolulu, 77 Hawai'i 168,
172, 883 P.24 629, 633 (1994).
B. Interpretation of the Revised Ordinances of Honolulu and the
Sharter of the City and County of Honoluly
We have stated that:
When interpreting municipal ordinances, we apply the sane
Fules of construction that we epply to seatates: While an
Aaziniscrative agency's interpretation of the ordinance that
Ges responsible for iaplenenting is normally accorded
great weignt, no deference is required when the agency”
Gneerpretation conflicts with or contradicts the manifest
purpose of the ordinance it seeks to implement
Colony Surf, Ltd. v. Dir. & Permitting, 116
Hawai'i 510, 514, 174 P.3d 349, 353 (2007) (quoting City 6 County
of Honolulu v. Hsiung, 109 Hawai'i 159, 172, 124 P.3d 434, 447
(2005).
‘This court reviews the interpretation of a statute de
Journalists Univ. of Hawai'i Chapter, 83 Hawai'i 378, 402, 927
P.2d 286, 410 (1996). Statutory construction is guided by
established rules:
First, the fundamental
Second, where the stat\
“+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
le duty i to give effect to ite
plain and sbvicus seaning, Third, implicit in the
Faek of statutory construction is’ our foremost
Obligation to ascertain and give ee!
intention of the legislature, which is to
inariiy from the language contained sn
elf. Fourth, when there is doubt, doubleness of
neaning, or indietinetiveness or uncertainty of an
expression used ina statute, an ambiguity exis
Peterson v. Hawai'i Elec, Light Co., Inc., 85 Hawai‘! 322, 327-28,
944 P.2d 1265, 1270-71 (1997), superseded on other grounds by HRS
§ 269-15.5 (Supp. 1999) (block quotation format, brackets,
Unambiguous, our
citations, and quotation marks omitted).
Likewise, “(t]he interpretation of [a] charter {
Similar to the interpretation of a statute.” Maui County Counc:
va Thompson, 84 Hawai"i 105, 106, 929 P.2d 1358, 1356 (1996).
Specifically,
[ijn interpreting zoning ordinance [under the LUO}, the
duty of this court ia to ascertain and give effect to the
intent of the Honolulu city council’... - Legislative
intent should be determined, if possible, from the Language
of the ordinance, and the language sust be read in the
Context of the entire ordinance and construed in a manner
Consistent with the purposes of the ordinance.
State v. Lum, 8 Haw. App. 406, 410, 807 P.2d 40, 43 (1992)
(citations omitted) .
TIT. DISCUSSION
As noted earlier herein, the dispositive issue is
whether the Surf School’s use of Shop # 7 of the Hotel's premises
was a permissible change in nonconforming use (from hotel to
office) under the 1U0. For the following reasons, we hold that
the Director's mixed finding of fact and conclusion of law that
18
*** FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER
the Surf School’s use of the Hotel’s premises was a permissible
change in nonconforming use was clearly erroneous as it is not
supported in the record,
A, Purpose of the 10
‘The stated purpose and intent of the LUO is as follow:
(a) The purpose of the 100 is to regulate Land use in a
Banner that will encourage orderly development in
Accordance with adopted and use policies, snslusing
the Oany general plan and development plans, and t2
promote and protest the public Health, tasaty ane
Nelfare by, hore particularly:
(i) Minktszing adverse effecte resulting from the
inappropriate location, use oF design of sites
and structures:
(2) Conserving the city's natural, historic ang
Scenic resources and encouraging design which
enhances the physical form of the citys and
(3) Asaiseing the publie in identifying and understanding
Feguiations affecting the developnent and ase of land.
WO § 21-1.204a) (1).
B. Permissible Nonconforming Uses Under the LUO
Notwithstanding the stated purpose of the LUO, HRS §
46-4 requires that the counties permit certain nonconforming
uses: “Neither this section nor any ordinance enacted pursuant to
this section shall prohibit the continued lawful use of any
building or premises for any trade, industrial, residential,
agricultural, or other purpose for which the building or premise:
is used at the time this section or the ordinance takes effect.”
HRS § 46-4 (a) (1993). The burden to prove that a nonconforming
use is valid is on the “owner, occupant or user,” who must “prove
that a lot, @ structure, a use, a dwelling unit, or parking or
19
**+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
loading was legally established as it now exist.” U0 § 21-
4.110 (emphasis added).
At the county level “[s]trict limits are placed on
nonconforming uses to discourage the perpetuation of these uses,
and thus facilitate the timely conversion to conforming uses.”
LUO § 21-4.110(c). See alse LUO § 21-4.110 ("Constraints are
placed on nonconformities to facilitate eventual conformity with
the provisions of [the LUO].
Several provisions of the LUO regulate nonconforming
uses. According to the Luo,
[al nonconforming use shall not extend to any part of the
structure or lot which was not arranged or designed for such
lise at the tine of adoption of the provisions of this
Chapter or subsequent anenauent; ner shall she nonconforming
lise be expanded in any manner, or the hours of operation
snereased.
WO § 21-4.110(c) (1). However, the LUO allows for changes in
nonconforming uses that do not conflict with Wo § 21-
4,120(c) (1). See 190 § 21-4.110(c) (4) (providing conditions that
must be satisfied to support a permissible change in
nonconforming use).
Even if a valid nonconforming use existed at the time
the zoning changed, that use will be terminated if there is an
extended discontinuation of the nonconforming use. LUO § 21-
4,110(c) (2) provides that:
Any nonconforming use that ie discontinued for any re
for 12 consecutive nonths, of for 12 months during any
20
o** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
three-year period, shat
temporary cessation of
inary repairs for a
ny 12-month perio’ oh
Ségcontinust ion.
1 however, a
use. for’ purposes
‘not exceeding 120 days during
Be considered
LUO § 21-4.110(c) (2). It logically follows that once a
nonconforming use is terminated there can no longer be a change
in nonconforming use based on the terminated use
‘This court construes zoning ordinances under the LUO in
parimateria. See Colony Surf, 116 Hawai'i at 516, 174 P.3d at
395; Waikiki Marketplace v. Zoning Bd, of Appeals, 86 Hawai'i
343, 354, 949 P.2d 183, 194 (App. 1997). Based on the provisions
of the LUO pertaining to nonconforming uses, the party who is
arguing for a change in nonconforming use bears the burden to
demonstrate that the prior nonconforming use (1) was an original
conforming use of the premises that was established before the
change in zoning: or (2) was the result of a valid change in
nonconforming use froma prior valid nonconforming uses and (3)
neither the original nonconforming use nor the prior
nonconforming use has been discontinued. See LUO § 21-
4.110, (c) (2), (4).
C. The Record Does Not Support a Finding That The Surf Schoo!
ilas_a_Rermissible Change in Nonconforming Use
Central to the determination of whether a change in
nonconforming use is permissible is an analysis of whether the
prior nonconforming use was legally established.
21
*** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
In this case, the Director compared the Surf School's
use of Shop # 7 with a prior nonconforming accessory use of the
hotel. Specifically, the Director stated:
6 of this Analysis, 1t seers reasonable te
ge invuse t2 2 suet
Srester than i: it operased as an Socsucory Uae of the botel
«Further; it would be difticsit to find that a Sta
Involving 50 to’ 50 students would bs typical for an
accessory use of a i2d-unit hotel.
(flor purpe:
(Emphases added.) Additionally, he stated that “if the adverse
effects can be controlled by limiting class size, then the surf
school's activities should not have an impact greater than if
Lthel surf school operated as accessory use of the hotel.”
(Emphasis added.) Moreover, the Director’s conclusions of law
state that “(t]he change in nonconforming use, which occurred at
the location identified as Shop No. 7, haa the potential for
greater adverse effects than if the hotel use of that Location
been [sic] continued, or if it were operated as an accessory use
of the hotel.” (Emphasis added.)
‘The Director erred when he compared the Surf School's
impact to that of “an accessory use of the hotel,” because the
Director could only weigh the Surf School's impact against a
ecally established prior nonconforming use. Here, the Surf
School's use of Shop #7 cannot be compared to “an accessory use
of the Hotel” because the Surf School did not meet its burden to
prove that there was a legally established prior nonconforming
22
*** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
accessory use of Shop #7. In other words, the Surf School did
not establish (1) that there was a valid accessory use of Shop #
7 by the Hotel before t
e 1969 Comprehensive Zoning Code 1
aged
the Hotel's zoning from Hotel and Apartment District “L" to A-4
Apartment Districts or (2) there was a valid accessory use of
Shop #7 before the LUO changed the Hotel's zoning from A-é
Apartment District to its current A-2 Medium Density Apartment
District designation.
There is no evidence in the record that there was a
legally established accessory use of Shop # 7 prior to the LUO.
The only prior commercial use of Shop # 7 in the record was the
use of Shop # 7 as a beach equipment rental shop. However, as
stated by the IC,
‘The record ia unclear as to when the Hotel's use of Shop #7
fended and ita use for commercial purposes began. Ae early
21993, other commercial tenants used shop #1 to rent out
kayaks, ‘body boards, surfing and other beach equipment. The
record fa11s to establish whether the prior rental
Businesses constituted an accessory use or a non-accessery
Use, Leery whether the customers of these businesses wore
prinarily’ hotel guests or the general public.
SDH, 119 Hawai"i at 456, 198 P.3d at 719, As the record does
not support a finding that the beach equipment rental use was an
accessory use of the Hotel, it cannot be considered a valid prior
nonconforming accessory use of Shop # 7. Even assuming that the
beach equipment rental use was a valid accessory use of the
Hotel, the Surf School has only shown that the use was
uninterrupted since 1993. Therefore, the Surf School has not met
23
*** FOR PUBLICATION IN WEST'S HAWAP' REPORTS AND PACIFIC REPORTER ***
its burden to show a “legally established” prior nonconforming
accessory use of Shop #7. See LUO $ 21-4.110. As a result, the
Director erred in comparing the Surf School's use of Shop # 7 to
that of a prior nonconforming accessory use of the hotel.’
Based on the foregoing, the Director's mixed finding of
fact and conclusion of law that a change in nonconforming use was
permissible under LUO § 21-4.110(c) (4) was not supported in the
record. As a result, the ICA erred when it concluded that the
Director's ruling “was reasonably based on the evidence before
the director and constituted a reasonable application of the
applicable zoning ordinance and the DPP’s previous interpretation
of that ordinance.” SDH, 119 Hawai'i at 465, 198 P.3d at 728.
‘SDiiii's Other Issues
Because the Director’s ruling was clearly erroneous, we
need not consider any of SDHW’s additional arguments.
IV. CONCLUSION
Accordingly, we vacate the ICA’s Opinion and affirm the
circuit court’s amended final judgment but on different grounds,
namely that the Director's mixed finding of fact and conclusion
of law that the Surf School’s use of Shop # 7 was a permissible
* thus, the only legally established prior nonconforming use on
record was the nonconforming hotel ise, Although the Director stated that
“any of the ground-floor comercial uses on the [Hotel] site considered
principal uses, including the surf school, are permissible as long os their
Inpact’on surrounding properties is no greater than that of the hotel use,”
ie clesr from his analysis that he did not follow this standard.
24
‘+ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
change in nonconforming use was clearly erroneous as it was not
supported in the record.
Dane L. Miller
‘and Wilma Sur (of Miller
Tokuyama © Sur, LLP)
for petitioners/appellants-
appellees Save Diamond Head
Waters, LLC; Kapiolani Park
Preservation Society, LLC;
Mike Beason; and Richard K. Quinn
William W.L. Yuen
‘and Philip W.T. Chang
(of Ching, Yuen & Morikawa)
for respondent /appellee-
appellant Hans Hedemann Surf,
Ine.
Don S. Kitaoka,
Deputy Corporation Counsel,
for respondent /appellee~
appellee City and County of
Honolulu, by and through the
Department of Planning
and Permitting
25
Grr—
Bite ON aes ert
i
Vann. Reedy I+
AKIA—
|
24a07c48-c440-4dac-876a-f45203caa0f1 | Tierney v. Perkins | hawaii | Hawaii Supreme Court | NO. 30189
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
MICHAEL C. TIERNEY, Petitioner,
vs.
THE HONORABLE RICHARD K. PERKINS, JUDGE OF THE CIRCUIT
COURT OF THE FIRST CIRCUIT, STATE OF HAWAI#I, Respondent.
ORIGINAL PROCEEDING
(CR. NO. 08-1-0869)
ORDER
(By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioner Michael C. Tierney and the papers in
support, it appears that petitioner is represented by appointed
counsel in appellate case No. 29993 inasmuch as the circuit
court’s May 22, 2009 order appointing counsel in Cr. No. 08-1-
0869 appointed counsel for petitioner for purposes of sentencing
and for appeal. Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall process the petition for a writ of mandamus without
payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai#i, December 3, 2009.
|
51ff758a-985f-46a5-ae4f-1dbdd7505fdc | State v. Denis-Silva | hawaii | Hawaii Supreme Court | No. 29613
IN THE SUPREME COURT OF THE STATE OF HAWAT
STATE OF HAWAI'I,
Respondent /Plaintif£-Appellee,
b
a
VICTORIA LEE DENTS-STLVA,
Petitioner /Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 08-1-0233K)
ORDER DISNISSING APPLICATION FOR WRIT OF CERTIORARI
(By: Moon, C.J., for the court")
Petitioner/defendant-appellant Victoria Lee Denis-
Silva's application for a writ certiorari, filed on August 13,
2009, seeks review of a circuit court order filed on December 31,
2008 in Cr. No. 08-1-133K. The December 31, 2008 order of the
circuit court is not reviewable by the supreme court by
application for a writ of certiorari, See HRS § 602-59(a) (Supp.
2008). Therefore,
IT IS HEREBY ORDERED that the application for a writ of
certiorari is dismissed
DATED: Honolulu, Hawai'i, August 27, 2009.
FOR THE COURT:
Me gustice
considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenvald,
ws,
|
243fef17-82bb-4ed3-8269-195455e59a73 | In re Conservatorship and Guardianship of Naito | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26118
IN THE SUPREME COURT OF THE STATE OF HAW
IN THE MATTER OF THE CONSERVATORSH: “
GUARDIANSHIP OF GENEVIEVE FERNANDEZ NAITO:
ams
CERTIORARI TO THE INTERMEDIATE COURT OF APPEA
(enc. NO. 06-1-0007) 3
(By: Duffy, J., for the court")
Petitioner/Appellant Pat L. Mulvey’s application for a
weit of certiorari, f1led on June 12, 2009, 1s hereby rejected.
Honcluts, Hawai'i, guly 21, 2009.
FOR THE COURT: err
Con 6 Bide + (,, SEAL *
rassciate sunice Oh
DATED:
Pat L. Mulvey,
petitioner/appellant,
on the application
pro se
Moon, C.J. Nakayama, Acoba, and Duffy, JJ., and
‘Sey recused
‘of Reckeonwald,
chreuie duuge Alm, in pla:
|
ae29229c-54f0-494a-ac82-25de7f59a95d | Shelton v. Chan | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29974
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
WANDA SHELTON, Petitioner,
THE HONORABLE DERRICK H.M. CHAN, JUDGE OF THE CIRCUIT
COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I; and
KAISER FOUNDATION HEALTH PZAN, INC., Respondents.
SE
ORIGINAL PROCEEDING
(S.P. NO. 09-1-0025) |
60a
ORDER al
(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and
Intermediate Court of Appeals Judge Fujise,
in place of Recktenwald, J., recused)
MHZ Hd 9259
Upon consideration of the petition for a writ of
mandamus filed by petitioner Wanda Shelton and the papers in
support, it appears that the notice of removal filed by
petitioner in the Hawai't federal district court pursuant to 28
U.S.C. § 1446 (a) was the Notice of Removal filed on July 7, 2003
as Civil No. 09-00309 SOM/LEK. Petitioner did not file a copy of
that notice in $.P. No. 09-1-0025 pursuant to 26 U.S.C. $
1446(d). Tt further appears that petitioner can move, in S.P.
No. 09-1-0025, for the disqualification of the respondent judge
and for the dismissal of the motion to compel arbitration.
Therefore, petitioner is not entitled to mandamus relief. see
Kema_v, Gaddis, 91 Hawai'i 200, 204, 962 P.2d 334, 338 (1999) (A
writ of mandamus is an extraordinary remedy that will not issue
unless the petitioner demonstrates a clear and indisputable right
to relief and a lack of alternative means to redress adequately
the alleged wrong or ob
the
quested action.). Accordingly,
IT IS HERI
SY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai’
August 26, 2009.
a——~
Goa «: Dey
Beewas OP Fi —
|