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034205f2-f57c-403b-8ecf-17bdb54c49af | Hawaii Insurers Council v. Lingle | hawaii | Hawaii Supreme Court | LAW LBRARY
No. 27840
IN THE SUPREME COURT OF THE STATE OF HAWAT'g
HANAII INSURERS COUNCIL, Plaintiff-Appelleg
aaws
LINDA LINGLE, GOVERNOR, STATE OF HAWAT'T
KAWAMURA, DIRECTOR OF FINANCE, DEPARTMENT OF BUDGHi| AND
FINANCE; LAWRENCE M. REIFURTH, DIRECTOR, DEPARTMENT
OF COMMERCE AND CONSUMER AFFAIRS; J.P. SCHMIDT,
INSURANCE COMMISSIONER, INSURANCE DIVISION, DEPARTMENT
OF COMMERCE AND CONSUMER AFFAIRS, Defendants-Appellants.
AZHRY S-
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 02-1-2295)
(By: Moon, C.J.
for the court’)
Upon consideration of defendants-appellants’ motion for
partial reconsideration or, in the alternative, for clarification
of this court’s December 18, 2008 opinion, filed January 6, 2009,
the papers in support thereof, the plaintiff-appellee’s
menorandun in response thereto, filed on January 20, 2009, and
the record herein,
XT IS HEREBY ORDERED that the motion is denied
DATED: Honolulu, Hawaii, February 6, 2009.
FOR THE COURT:
ae gustice
«Nakayama, Acoba. and Duffy, J.
sppointed by reason of vacancy.
+ Considered by: Moon, Cut
Retired Justice Levinson
+ and
|
425a0a0e-7b3a-4843-8d22-722bfcf5dc0f | Ka Waihona O Ka Naauao v. State of Hawaii, Board of Education | hawaii | Hawaii Supreme Court | =
{#4* NOT_FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER *
No. 26666 2
gS 2
TW THE SUPREME COURT OF THE STATE OF HAWAT'T)? = mj
Dixie
a
KA WAIHONA 0 KA NR'AUAO, Ho'opio DeCanbra, Poka Laenui, Jeanatte
d of directors
Ka'uluwehi, Kenneth Ka'uluwehi, Stella’ Pihana-Young,
adello, Mona Bernardino, Ku'tlei Weathington, and Leimana
rs
individually and as members of the
Kahikina,
of Ka Waihona 0 Ka Na‘auao, Cherienne Akau, and Kim Ha'upu
individually and as menbers-elect to the board of directors of Ka
Waihona 0 Ka Na‘auao, Mauna‘ala Burgess, Carl ‘Imiola Young, Jody
Pihana, Puanani Burgess, Judy Opunui, Will Joseph Weathington,
‘and Cameron-Joseph Auhoon, Plaintiffs-Appellants,
STATE OF HAWAII BOARD OF EDUCATION, through its Chairman Herbert
Watanabe, STATE OF HAWAII DEPARTMENT OF EDUCATION, through its
Superintendent of Education, Patricia Hamamoto, Alvin Parker,
Glenn Philhower, Chrissy Pilila'au, Fran Villareal, Wayne
Hirakawa, Opu Seminavage, Zana Hughes, and Bill Sutkus,
Defendants-Appellees.
(CIV. NO, 03-1-0800)
Hotopio
Ku'uled
KA WATHONA © KA NA'AUAO, a 21% Century Charter School
Poka Laenui, Jeannette Ka'uluvehi, Kenneth Ka‘uluwehi,
Dixie Padello, Mona Bernardino,
DeCanbra,
Stella Pihana-Young,
Weathington, and Leimana Kahikina, individually and as members of
the local school board of Ka Waihona 0 Ka Na‘auao, a 21" Century
Charter School; Cherienne Akau, and Kim Ha‘upu, individually and
as menbers-elect to the local school board of Ka Waihona 0 Ka
Mauna'ala Burgess, Carl
Na‘auao, a 21% Century Charter Schoo:
“Imicla Young, Jody Pihana, Puanani Burgess, Judy Opunui, Will
Joseph Weathington, and Cameron-Joseph Auhoon,
Plaintiffs-Appellants,
ALVIN PARKER, GLENN PHILHOWER, CHRISTINA PILILR'AU, FRANCES
VILLAREAL, WAYNE HIRAKAWA, EUGENE SEMINAVAGE, ZANA HUGHES, and
BILL SUTKUS, Defendants-Appellees,
and
DOE CORPORATIONS 1-50; and
JOHN DOES 1-50; DOE PARTNERSHIPS 1-50;
DOE ENTITIES 1-50, Defendants.
(crv. No. 0341-1137)
HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NOS. 3-1-0800 and 03-1-1137)
SUMMARY DI:
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Plaintiffs-Appellants Ka Waihona © Ka Na'auao (“Ka
Waihona Corp."), Poka Laenui (“Laenui”), Ho'opio DeCambra
("Decambra”), Jeanette Ka'uluwehi, Kenneth Ka'uluwehi, Stella
Pihana-Young, Dixie Padello, Mona Bernardino, Ku'vlei
Weathington, and Leimana Kahikina, individually and as members of
the board of directors of Ka Waihona Corp., Cherienne Akau, and
Kim Ha'upu individually and as members-elect to the board of
directors of Ka Waihona 0 Ka Na‘auao, Mauna‘ala Burgess, Carl
‘Imiola Young, Jody Pihana, Puanani Burgess, Judy Opunus, William
Joseph Weathington, and Cameron-Joseph Auhoon; and Plaintiffs-
Appellants Ka Waihona 0 Ka Ne‘avac, A 2ist Century Charter School
("21st Century Charter School”); DeCambra, Laenui, Jeanette
Ka'uluwehi, Kenneth Ka'uluvehi, Stella Pihana-Young, Dixie
Padello, Mona Bernardino, Ku'ulei Weathington, and Leimana
Kehikina, individually and as menbers of the board of directors
of 2ist Century Charter School; Cherienne Akau, and Kim Ha‘upu
individually and as menbers-elect to the board of directors of
2ist Century Charter School, Mauna‘ala Burgess, Carl ‘Imicla
Young, Jody Pihana, Puanani Burgess, Judy Opunui, William Joseph
Weathington, and Caneron-Joseph Auhoon, appeal from the first
circuit court’s' June 10, 2004 judgment in favor of all the
defendants, State of Hawai'i Board of Education (“BOE”), through
its Chairman Herbert Watanabe, State of Hawai'i Department of
Education ("DOE"), through its Superintendent of Education,
Patricia Hamamoto, Alvin Parker ("Parker”), Glenn Philhower,
* the Honorable Sabrina S. McKenna presided.
2
‘NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
chrissy Pilile’au, Frances Villareal, Wayne Hirakawa, Opu
Seminavage, Zana Hughes, and Bill sutkus, and against all the
plaintiffs on all claims in Civil Nos. 03-1-0800 and 03-21-1137.
‘two cases, which have been consolidated, arose after
the BOE allegedly interfered with 21st Century Charter School by
directing an election (*DOE-run election”) for its Local School
Board. In the first case, Ka Waihona Corp. et al., which
contracted with the BOE to establish 2 charter school, sued the
befendants-Appellees for breach of contract, fraud, and
collusion. In the second case, 2ist Century Charter School et
al. sought a cease and desist order against the individuals
elected in the DOE-run election to prevent them from sitting on
2ist Century Charter School’s Local School Board.
on appeal, Plaintiffs-Appellants argue that the circuit
court erred by concluding that: (1) the charter was issued to a
local school board and not to a non-profit corporation, even
though Ka Waihona Corp., a non-profit corporation, submitted the
Detailed Implementation Plan (“Contract”), and thereby received
the charter and therefore has standing to bring its breach of
contract claim against the BOE; (2) Ka Waihona Corp. did not
comply with the Contract to run the charter school and was not
“organizationally viable,” despite its subsidiary, 21st Century
charter School, establishing an eleven-member Local School Board:
(3) “(Hawai'i Revised Statutes) [$] [302A-]1186(b)? did not
HRS § 302A-1186(b) (Supp. 2002) provides in pertinent part that,
the BOE must:
initiate an independent evaluation of each nev (charter_gcveet]
ann to assure organizational viability and compliance
Sith appuicabie state Tavs, statewise stodent convent and
perfornence standards, and’ fiscal accountability: « Upon a
Setermination by the bord that student achievenent within &
[charter school] does not meet the student performance standards
(continued.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
prohibit the [08] from doing something less than revoking the
charter,” although this level of authority contradicts the
purpose of autonomous charter schools; (4) the BOE-directed
election for 21st Century Charter School's Local School Board was
consistent with state law governing charter schools, inasmuch as
it breached the Contract and thereby violated state statutes
governing charter schools; (5) the individuals elected in the
Dog-run election are menbers of the 2ist Century Charter School’ s
Local School Board, although the election was illegals and (6)
2ist Century Charter School did not contract with Parker although
the Chairman of 21st Century Charter School's Board of Directors
signed the contract.
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the argunents advanced and the issues raised, we hold that:
(1) The charter school’s charter was issued to the
local school board of Ka Waihona 0 Ka Na'auao, inasmuch as the
charter states that the BOE granted “the duly organized local
school board of Ka Waihona 0 Ka Na'auao” responsibility “to
operate as a public charter school”;
(2) Nevertheless, Ka Waihona Corp., a non-profit
-continuea)
‘Of that the (charter school) 1s not f1scally responesbl
charter senoel] shell be placed on probatinary status and shall
have one year to bring student performance into compliance mith
statewide standards and improve the school's fiscal
accountability. Tf a [charter schocl] fails to neet ite
probationary Pequirenents, or £ wieb ans
reouirenents of this section, the board, upon a two-thirds
ajority vote,
zehool]”
(Exphases added.)
in 2006, HRS Chapter 302A, part IV, subpart D (HRS $$ 302A-1181 to -
1192) was repealed by 2006 Haw. Sess. L. Act 298, § 3,” The legsalature
simultaneously enacted HRS Chapter 3028 (HRS $§ 3028-i to “16), which 1
entitled "Publis Charter Schools:
++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER:
corporation, which contracted with the BOE to establish 21st
Century Charter School, has suffered an injury in fact from the
DOE-run election inasmuch as it violated the Contract, and
therefore, it has standing? to assert a breach of contract claim
against the BOE;
(3) 2ist Century Charter School breached the Contract
and was “not organizationally viable” as defined by Hawai'i
Revised Statutes (“HRS”) § 302A-1186(b),* inasmuch as it did not
establish a fifteen-member Local School Board in accordance with
its charter:
(4) HRS § 302A-1186(b) did not prohibit the BOE from
doing something less than revoking the charter:
(5) The BOE was statutorily authorized to direct the
DOE-run election under HRS § 302A-1186(b), inasmuch as it was
“reasonably necessary”* in order for the BOE to ensure that 2ist
+ the United States Supreme Court has stated that in order to
establish standing, “the plaintiff must have suffered an ‘injury in fact'-an
‘hich se (a) concrete. and
Particularized, and (b) ‘actos! or imminent.” Luten v, Defender
Hilalife, 040.8, 555, 560-61 (1992)) (citations omitted) (amphi
‘added «
RS § 302K-1186(b) provides in pertinent part:
For the purposes of this subsection, torsanizational viability’
‘eeana that a now century charter achcoli
(1) Has been duly constituted in accordance with its charter;
(2)
ang its charter:
(3) Buploys sufficient faculty and staff to provide the
necessary educationel program and support services and to operate
the facility in accordance with its charter? and
(4) “Maintaine comprehensive records regarding students,
Employees, end complies with federal and state health and safety
Fequirenents.
(Emphases added.)
legislature granted the £08 the authority to discontinue
charter schools and act as "reasonably necessary” to assure that the charter
‘School vas organizationally viable. See Hacle v. State, 111 Hawai'i 144, 152,
140.34 377, 365 (2006) (van administrative agency's authority includes those
Inplica powers that are reasonsbly necessary to carry out the pouers expressly,
(continued...)
+ NOT _FOR PUBLICATION IN WI
"'$ HAWAII REPORTS AND PACIFIC REPORTER
Century Charter School was “organizationally viable” and
established according to its charters®
(6) Inasmuch as the DOE-run election was “reasonably
necessary” to assure that the Local School Board was established
with fifteen members, the individuals elected in the DOE-run
election are members of the Local School Board; and
(7) 21st Century Charter School was not a party to the
$40,000 contract between Parker and the Local School Board,’ and
therefore does not have standing to claim that Parker breached
the contract. Therefore,
IT IS HEREBY ORDERED that the circuit court's June 10,
2004 final judgment is affirmed.
DATED: Honolulu, Hawai'i, December 13, 2007.
on the beiefe: om
foka Laenui, (Hayden Surgess) :
Holly T. Shikada and Rewe? Deeg.
Selle k. hiss
Deputy Attorneys General
for Defendant s-Appellees Gene Dede
24s continued)
granted. "The reason for inplied powers 1s that, as @ practical matter, the
Tegisiature cannot foresee sll the problems incidental to cartying out the
duties and responsibilities of the sgency.")
«Although Hawaii's charter schools are uniquely autonomous, the
legisisture intended to require each charter school te se organizarionaily,
viable or risk losing its charter “to engure [charter schools’) ongoing
‘iability.” ‘Sen, Conf. Comm. Rep. No. 136, in 2002 Senate Journal, at 1010-
in
>The Second Local Schoo! Board does not have standing to sue Parker
for breach of the Parker-centract because it evolved into the Pest-election
Local School Board which presently sets se the functioning and permanent Local
School Board, Rather, the presently functioning Local School Beard, the Post™
election Local School ‘Board, hes standing to bring suit against Parker for
breaching the Parker-contract.
|
19acc9e0-3760-4bbd-802d-545a883f2c3c | Martinez v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 29488
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MARSHALL MARTINEZ, Petitioner,
STATE OF HAWAI'I, Respondent. i=
ORIGINAL PROCEEDING “ a
ORDER
(By: Duffy, J. for the court’)
Ha 08 Nur
aang
Upon consideration of the motion for reconsideration
and clarification of the Decenber 19, 2008 order denying the
petition for writ of habeas corpus, it appears that the motion
was filed more than ten days after the filing of the Decenber 13,
2008 order and is untimely. See HRAP 40(a). Therefore,
IP IS HEREBY ORDERED that the motion for
reconsideration and clarification is dismissed.
DATED: Honolulu, Hawai'i, ganuary 30, 2009.
FOR THE COURT:
Gnen €: Dag Ore
Associate Justice
fon of vacancy, on January 28, 2009,
* considered by: Moon, C.J., Nakayama, Acoba, and Daffy, 29.
Retired Justice Levinson, appointed by rei
|
c730f70c-7130-44d4-b850-b07cc9800990 | State v. Gututala | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27749
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
ARTHUR SAMOA GUTUTALA, Petiticner/Defendant-Appellent
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CR. NOS. 05-1-1378 and 05-1-1921)
Duffy, J., for the court’)
Petitioner/Defendant-Appellant Arthur Samoa Gututala’ s
application for a writ of certiorari, filed on November 3, 2007,
is hereby accepted.
DATED: Honolulu, Hawai'i, December 7, 2007.
FOR THE COURT:
Car ree.
Associate Justice
Phyllis J. Hironaka,
Deputy Public Defender,
for petitioner /defendant-
appellant on the application
Ef o3
Be EF
Bee 6
"considered by: Moon, €.9., Levinson, Maayan, Aeba, and Dotty, 39.
|
1c385481-4d6d-4e88-9d5c-6f8f5cef4ee5 | Jardine v. Read | hawaii | Hawaii Supreme Court |
LAW LIBRAF
No, 26804
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
ALVIN JARDINE, Petitioner,
THOMAS L. READ, Administrator, Offender Management,
Department of Public Safety; NETTIE SIMMONS, Offender
Management, Department of Public Safety, Respondents.
ORIGINAL PROCEEDING
(By: Moon, C.d., Levinson, Rakajama, Acoba, and Duffy, JJ.)
Upon consideration of the petition for a writ of
mandamus end/or prohibition by petitioner Alvin Jardine and the
papers in support, 1¢ appears that (1) petitioner fails to
denonstrate that his maxinun tern release date, as computed by
the Department of Public Safety on June 28, 2007, is not
commensurate with the maximum term of imprisonment imposed by the
eiroutt court, and (2) petitioner's challenge of his maximim term
release date as not conensurate with the maximum term of
Smprisonnent imposed by the circuit court is @ challenge to the
legality of petitioner's custody for which relief is available
from the circuit court pursuant HRPP Rule 40 (cf. Widldanson ve
Havai'4 Paroling Auth, 97 Howai's 163, 187, 35 P.3d 210, 214
(2001)). Therefore, petitioner is not entitled to a writ of
mandamus or prohibition. See Kena v, Gaddia, 91 Hawai'i 200,
204, 962 P.2d 394, 338 (1999) (A writ of mandamus or prohibition
is an extraordinary remedy that will not 4
sue unless the
petitioner demonstrates a clear and indisputable right to relief
and @ lack of alternative means to redress adequately the alleged
wrong or obtain the requested action.). Accordingly,
IT TS HEREBY ORDERED that the petition for a writ of
mandamus and/or prohibition is denied.
DATED: Honolulu, Hawai'i, November 19, 2007.
|
fe264141-bcb6-4342-bbb3-fa75d1edaa79 | Santiago v. Chan | hawaii | Hawaii Supreme Court | z
w. 28885 g
IN THE SUPREME COURT OF THE STATE OF HAWAI'I 3 .
FRANK J. SANTIAGO, Petitioner, 5 z OF
. ) og
THE HONORABLE DERRICK H. M. CHAN, JUDGE OF THE CTRCUIT
COURT OF THE FIRST CIRCUIT, ‘STATE OF HAWAI'I, Respondent.
ORIGINAL PROCEEDING
(CR. NO. 011-2230)
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 93.)
Upon consideration of Frank J. Santiago's “writ of
mandamus for entire transcripts of Cr. No, 1-1-2230", which is
deemed a petition for a writ of mandamus, it appears that
petitioner does not have a statutory or constitutional right to
free transcripts of Cr. No, 01-1-2230 to aid petitioner in
preparing @ petition for collateral relief. See HRS § 802-7
(1993); United states v, MacCollom, 426 U.S. 317, 323-26 (1976).
‘Therefore, petitioner is not entitled to mandamus relief. see
Kena v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (a
weit of mandamus is an extraordinary renedy that will not issue
uniess 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 18 HEREBY ORDERED that the clerk of the appellate
court shall file petitioner's papers as a petition for a writ of
mandamus without payment of the filing fees.
JER ORDERED that the petition for a wr.
mandamus is denied,
DATED: Honolulu, Hawai'i, December 10, 2007.
|
1e915a6a-d530-4a53-9199-b039c1f6ca3e | Office of Disciplinary Counsel v. Gumpel | hawaii | Hawaii Supreme Court | No, 15404
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
Petitioner,
OFFICE OF DISCIPLINARY COUNSEL,
GUMPEL, Respondent :
KATHY J. =
3 =
—.JT————_—"ST
ORIGINAL PROCEEDING = c
=
(ove 99-174-2698, 89-225-2749, 90054-2872
(By: Moon, C.J., Nakayama, Acoba and Duffy, JJ.,
and Intermediate Court of Appeals Associate Judge Nakamura,
assigned by reason of vacancy)
Upon consideration of the Office of Disciplinary
Counsel’s Submission on Dr. Altman's Report Dated Decenber 6,
2008, Respondent Gumpel’s medical records, and the record, it
appears Respondent Gumpel has shown that her disability has been
removed and she is fit to resume the practice of law. Therefore,
IP 1S HEREBY ORDERED, pursuant to Rule 2.19(f) of the
Rules of the Supreme Court of the State of Hawai'i, that
Respondent Kathy J. Gunpel is reinstated to active status in this
jurisdiction, subject to payment of all registration fees and
costs required by our rules.
IT 1S FURTHER ORDERED that the Office of Disciplinary
Counsel may resume disciplinary proceedings, including
proceedings identified as ODC 89-174-2698, 89-225-2749, and 90-
054-2872, if warranted.
DATED: Honolulu, Hawai'i, January 30, 2009.
Form
Pecaca Gao, Ove
Cog U Aliarram
|
80191a98-72fc-4e57-9c02-ede0084ea237 | Loman v. Gerber | hawaii | Hawaii Supreme Court | ‘++ NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
No. 26527
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
ee
ANTON LOMAN, Plaintiff,
MELISSA GERBER, and JOHN DOES 1-20, Defendants.
ANTON LOMAN, Plaintiff-Appellee/Cross-Appellant,
INEZ BUTTERFIELD, Defendant-Appellant/Cross-Appellee,
and g
CITY AND COUNTY OF HONOLULU, 3
Defendant-Appellee/Cross-Appeliee, 23 x
and ae OF
JOHN DOES 1-20, Defendants. 7 38
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO, 02-1-2710)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Defendant-Appellant/Cross-Appellee Inez Butterfield
(“sutterfield”) appeals and Plaintiff-Appellee/Cross-Appel lant
Anton Loman (“Loman“) cross-eppeals from the first circust
court's! April 8, 2004 amended judgment (“amended judgment”) (1)
in favor of Defendant-Appellee/Cross Appellee City and County of
Honolulu (“the City”) and against Loman and Butterfield, and (2)
in favor of Loman and against Butterfield.
+ the Honorable Victoria S. Marks presided.
agama
[NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
On appeal, Butterfield argues that (1) the circuit
court erred by awarding the City $5,952.21 in costs against
Butterfield inasmuch as the City was not a “prevailing party”
under Hawai'i Arbitration Rules ("HAR") Rules 25? and 26? and (2)
the circuit court erred by assessing Butterfield and the city
$15,000.00 each in attorneys’ fees.
On cross-appeal, Loman argues that the circuit court
+ HAR Rule 25 (1999) states as follows:
The Prevailing Party in the Trial De Novor Costs.
(A) The "Prevailing Party” in a trial de novo is the party who (2)
appealed and inproved upon the arbitration award by 308 ot nore,
OF (2) did not sppeai and the appealing party failed to improve
tipon the arbitration award by 308 or more.
Yule, "improve" or “improved” means to increase thi
plaintife or to decrease the auard for the defendant
(®) The “Prevailing Party" under these rules, as defined above, is
Geened the prevailing party unser any statute or rule of court,
Ae such, the prevailing parey is entitied to costs of trial and
all other remedies 25 provided by lav, unless the Court otherwise
direct:
> WAR Rute 26 (1995) provides:
Sanctions for failing to prevail in the trial de novo.
(A) After the verdict 1s Feceived and filed, or the court! s
decision rendered in a trial de novo, the trial court may, in ite
Giscretion, impose sanctions, a2 aet forth below, against the noo
rsvailing sarty whose appeal resulted in the trial de novo.
(e)
(a) Reasonable costs and fees other than attorneys” fees)
actually incurred by the party but not otherwise taxable under the
Taw, including, but not Limited to, expert witness fees, travel
costs, and deposition costs:
(2) Costs of jurors:
G) irses not to excess 2
(C) Sanctions Imposed against a plaintiff will be deducted from
any judgment rendered at trial, If the plaintiff does not receive
a judgment in his or her favor or the judgment is insufficient to
pay the sanctions, the plaineit® will pay the ancunt of the
Geficiency. Sanctions imposed aginst s defendant will be added to
ny Juagnent rendered at trial.
‘o) ing sanctions, it sider al
(OT _FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER.
abused its discretion by awarding him prejudgment interest
accruing from Septenber 24, 2002 rather than from the date of the
accident, May 19, 1998, pursuant to HRS $ 636-16."
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:
ite discretion® by
(1) The circuit court did not abusi
awarding the City $5,921.21 in costs against Butterfield because
Lomané as well as the City’ can be prevailing parties under the
+ wns § 636-16 (2593) states:
jarding interest in civil cases, the judge is authorized
ee the commencement date to conform with the
‘the saxbiest
aire ‘and in cases arising by Breach of
Sontract, Te may be the date when the breach first occurred.
(Emphasis added.)
+ See Richardson v, Sport Shinko (Waikiki com, 76 Hawai'i 494,
521, 680 e.2d-Tes, 186 (1998) (holding that when reviewing « circuit court's
Gecision to impose Rule 26 sanctions, “the only relevant inquiries are: (1)
\ihether the party against whom the sanctions Were isposed is a. ‘non-prevailing
party,’ in the tf1a! de-nove end (2) whether the decision to inpose sanctions
Constituted an abuse of discretion”).
"sae Rosa vs Johnston, 3 Haw. App. 420, 431, 651 P.24 1228, 1237
(19e2) ("in multiple parties cases, a party may be & losing party visca-vis,
tno other parties.") (citing suothers z, Renander, 2 Haw. App. 400, 633 Pe2d
556 (19611)
‘Our ruling in Molinar v. Schweizer, 95 Hawai'i 331, 22 P.94 998
(2001), sn which we declined to name two prevailing parties does not apply to
the present case.” In Holinaz, we rejected Molinar’s argunent that she was 2
Sprevailing party” under Hace Rule Sta) because this rule is superceded by
Hak Rule 25, which states that the “prevailing party” pursuant to WAR Rule 25
“is deened the prevailing party under
98 Hawal's at 334, 22 F.34 at 961, However, in the BE
Loman falfiil the requirenents of HAR Pole 25 as “prevailing parties” and
either rely on ARCP Rule S4(d) to argue their status
HAR Rule 25 defines how a party may qualify as a “prevailing
party” regardless of whether the party 1s 2 plaintiff, defendant, co-
Sefendent, oF co-plaintsff. Thus, HAR Rule 25 doss not preclude a co-
Gefendant’ or any ether party from the status of a “prevailing party.”
3
‘+ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
plain language of HAR Rule 25;
(2) The circuit court erred by ordering Butterfield to
pay @ total of $30,000.00 in attorneys’ fees, because HAR Rule 26
Limits the sanctions against the non-prevailing party to
$15,000.00 total in attorneys’ fees;
(3) the City and Loman should share the $15,000.00 in
attorneys’ fees in proportion to their work and reasonable rates
as calculated under the lodestar doctrine?
(4) The circuit court did not abuse its discretion by
ordering Butterfield to pay prejudgment interest accruing from
Septenber 24, 2002, rather than fron the date of the accident."
+ the legislative purpose in establishing the CAAP was to “reduce
delay and cost” and to provide an “alternative to costly and protracted
Litigation." spec. Coan. Rep. No. 88-86, in 1986 Senate Journal Special
Session, at 29. See Kealoha-v. County of Hawai'i, 74 aw. 308, 325-26, 844
Bead 670, 67 y S47 P.24 263 {1993}. HAR Rule 26, which
entorces’ these Objectives, authorizes a trial court to sanction nonprevailing
Parties “shose decision to appeal the arbitration
hove was unre
grounded to sone degree in law or fact.” Aichardschy 76 Hawai'i at S11, 660
Piad'at 166,” HAR Rule 26 1s designed to discourage “incurring further costs
‘and expenses of trial” through "baseless or frivolous sppesis from an
arbitration decision . , « because they prevent proapt and equitable
Fesolutions of actions." “id; Kealoba, 74 Haw. at 326, 844 F.2d at 679.
+ the “lodestar method” reflects the amount of work done on the
case: the reasonable hourly rate of compensation (in consideration of the
Coamunity's hourly rate) is multiplied by the actual houre worked and then may
bbe adjusted based on the “contingent nature of succes” and "quality of [the]
attorneys’ work.” Montalye ¥. chang, 64 Haw, 245, 358-59, 641 F.2d 1921, 1351
(2982)" (overruled on etner grounds by Chun v. Bd.’ of Trustees of the
4 92 Hawai'i 432, 982 F.2d 127 (2000) (eitatione
omitted)
™ this court has previously observed the extent of the trial court's
Giscretion to deny prejudgment interest, as follons:
[ile is clearly within the discretion of the circuit court to deny
Prejudgnent interest where appropriate, for example, where: (1)
the defendant's conduct did not cause any delay in che
proceedings, age “
Haw.°65,] 137, 639 8.20 (10,] 36, (recon, genieg, 74 Haw, 650, 643
Pi2d 144 (1992)]; (2) the plaineige himself has caused or
Teontinved,..)
[NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
therefore,
IT 15 HEREBY ORDERED that (1) the circuit court's
April 8, 2008 anended judgment with respect to its award of
$30,000 of attorneys’ fees to Loman and the City is vacated and
renanded vith instructions to divide the $15,000.00 in attorneys’
fees between the City and Loman in proportion to their xeasonable
fees and houre, as calculated under the “lodestar method": and
(2) the ekreult court's April 8, 2004 amended judgment is
affizeed in all other respects.
DATED: Honolulu, Hawal'l, December 22, 2007.
on the briets: From
hoy F. Epstein and Carios 0.
Seler-Mese of Epstein & SéecBihat to
Perez-Mesa for Defendant~
Appellant /Cross-Appellee Peet OT Radley Our
Inez Butterfield
Yawn © Dubie Ore
(continued)
‘contributed to the delay in bringing the action to trial, see
Sehmidt(], 73 Ham. on} ort)
an extraordinary danage award has alré sated
the plaintitt, gee 2es,
295,°788 F.2d 833, 838 (holding that it was an abuse of discretion
for’ the clicust court to auard prejudgnent interest to a treble
Ganages award), recon. denied, 71 law. 664, 839 P.24 899 (1990).
Rouge v, Marcos, €9 Hawai'i 91, 153, 9€9 P.2d 1209, 1271 (1998), cecom
Henied, 09 fawai's 91, 969 P.26 1209 (1999) (emphasis added)
Tie have also elaborated that guise recognized that the trial court was
‘to award prejudgment interest:
(a) if faute 4
dental of inte:
found on the part of the party seeking interest,
ye wil not be considered an abuse of discretion:
(2) if fault is found on the part of the party opposing interest,
an aard of interest. will not be considered an abuse of
lscretion; ana (2) where no fault is found on aither side, the
a snging on rar
Teis$ Comp, vs Morld Ins. Cou, 110 Maw, 473, 498, 135 P.3d 62, 107 (2006),
Tecan. denied’ 2006 Haw. LEXIS 462 (2006) (enphasis’ added) -
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
Randall L.K.M. Rosenberg and
Charles E. Mckay of Garcia
Rosenberg & Mckay for
Plaintiff-Appellee/Cross~
Appellant Anton Loman
Moana A. Yost, Deputy
Corporation Counsel, for
Defendant ~Appellee/Cross-
Appellee City and County
of Honolulu
|
702584c1-5169-4d66-9ec5-ef8e348d1883 | Doe v. Doe. | hawaii | Hawaii Supreme Court |
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
‘o00-=~
JOHN DOE and JANE DOE, Petitioner-Appellants,
JOHN DOE AND JANE DOE, Respondents-Appellees.
No. 26471
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUET
(FCM NO, 03-1-027K) =
DECEMBER 13, 2007
MOON, C.9., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY) ad. &
OPINION OF THE COURT BY NAKAYAMA, J. “i
Petitioners-Appellants, the grandparents
1 from the
(“Grandparents”) of a minor child ("child"), app
third circuit family court’s' February 27, 2004 order and
February 27, 2004 judgment dismissing their petition for
visitation rights filed pursuant to Hawai'i Revised Statutes
The solitary issue presented by
(OHRS") § 571-46.3.7
sed.
‘The Honorable Willéam S. Chillingworth pr
MRS $ 571-46.3 (Supp. 2003) provides
A grandparent or the grandparents of 2 minor child may file
‘a petition with the court for an order of reasonable visitation
‘The court may avard ressonable visitation rights provided
Fights:
that the following criteria are met
(1) This State is the home state of the child at the tine
‘Of the conmencenent of the proceeding; and
(2) Reasonable visitation rights are in the best interests
of the chile.
‘order of reasonable visitation rights under this
te and the
No hearing for ar
fection shell be hed
child's custodians
Constructive, of the allegetions of the petition and of the tine
Gnd place of the hearing thereot.
}n ceder nade pursvant to this section shell be enforceable
(continued...)
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
Grandparents on appeal is whether the family court correctly
concluded that HRS § 571-46.3, Hawaii's grandparent visitation
statute, which allows the court to award reasonable visitation to
a minor child’s grandparent if it is “in the best interests of
the child,” is unconstitutional on its face in light of the
United States Supreme Court’s decision in Troxel v. Granville,
530 U.S. 57 (2000).
For the following reasons, we hold (1) that HRS § 571-
46.3 can be interpreted to comply with Troxel, but (2) that it
implicates a fundamental right and is not narrowly tailored to
further a compelling governmental interest. We therefore affirm
the family court's February 27, 2004 order and judgment.
I. BACKGROUND
Grandparents filed a petition for visitation in the
third circuit family court on September 16, 2003. According to
Grandparents’ petition, Mother and Father divorced in 2002.
child, six years’ old at the time of the petition, resided with
Mother, who was the sole custodial parent, in the County and
State of Hawai'i. Father resided in California. Grandparents
asserted that reasonable visitation was in Child’s best interest.
Mother filed a motion to dismiss Grandparents’
petition, asserting that Hawaii's grandparent visitation statute,
which allows the court to avard visitation to grandparents if it
is in the best interests of the child(ren), is unconstitutional
on its face, pursuant to Troxel.
On February 27, 2004, the family court filed an order
"1. sontinved)
by the court, and the court may iseue other orders to carry out
these enforcenent powers if in the best interests of the child.
2
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dismissing Grandparents’ visitation petition, ruling, in
pertinent part, that “[HRS) § 571-46.3 . . . is unconstitutional
on its face in light of the United State’s [sic] Supreme Court’s
decision in (Troxel) . . . .” The family court also filed a
judgment that same day.
on March 24, 2004, Grandparents filed a tinely notice
of appeal.?
On August 15, 2007, the State filed s “Notice As To
Possible Moctness.” ‘The State informed this court that the
present appeal may be moot inasmuch as sole legal custody of
Child was transferred to Father in a related case (FC-S No. 04-
094k). As a result, this court filed an order to show cause as
to why the present appeal should not be dismissed as moot.
Grandparents filed a response on September 7, 2007, stating that
they did not oppose dismissal of the case on mootness grounds.
Mother, however, filed a response asserting that (1) the case is
not moot, and (2) even if moot, the present matter falls within
one of the well-recognized exceptions to the mootness doctrine.
IT, STANDARDS OF REVIEW
AL Mootne:
Generally, this court will not entertain “noot
questions or abstract principles of law.” Diamond v. State, Bd.
of Land & Natural Res, 112 Hawai't 161, 169, 145 P.3d 704, 712
(2006) (citations omitted).
B. Constitutional Questions
It is well settled that constitutional questions of law
> Hon-parties State of Hawai"l ("State") and the American
Association of Retired Persons were each granted leave of court to file amicus
briefe.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
are reviewed de novo under the right/wrong standard. See In xe
Guardianship of Carlsmith, 113 Hawai'i 236, 239, 181 P.34 717,
720 (2007).
IIT. Discussion
Grandparents’ Appeal Falle Within the Public Interest
Exception to the Mootness Doctrin
Mootness is one aspect of this court's prudential rules
of justiciability concerned with ensuring the adjudication of
live controversies. See Hong v. Bd, of Recents, Univ, of
Hawai'i, 62 Haw. 391, 394, 616 P.2d 201, 204 (1980) (“Judicial
tribunals sit only for the determination of real controversies
between parties who have a legal interest of at least technical
sufficiency in the subject-matters embraced in the records of
causes pending in courts.”) (Quoting Castle v. Irwyn, 25 Haw.
786, 792 (1921).). It is well-established in Hawai'i that
{s] case Ss moot where the question to be determined is abstract
doctrine Ss properly Savoked where vevents s : . have so aggected
the relations between the parcies that the ©wo conditiona. for
Sosticiability relevent on eppesl-vedverse interest and effective
Fenedy--have been compromised
Okada Trucking Co., Ltd, v. Sd. of Water Supply, 99 Hawai'i 191,
195-96, 53 P.3d 799, 803-04 (2002) (citations omitted) (brackets
in original) (ellipses in original). Synonymously,
As moot if St has lost its character a¢
rey of the kind that must exist if courts are to avoid
Scrisory opinions on abstract propositions of law. The rule is
one of the prodential rules of judicial self-governance founded in
Concern about the proper--and properly linited--role of the courts
Sn’ Genocratic society. Me have said the suit must remain alive
Throughout the course of Litigation to the moment of final
appellate disposition to escape the moctness bar
Kaho'chanohano v , 114 Hawai'i 302, 332, 162 P.3d 696, 726
resent, Live
(2007) (emphasis removed) (citations omitted). In sum, *
a) case
is moot if the reviewing court can no longer grant effective
*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
relief." Id. (brackets in original) (emphasis removed)
(citations omitted) .
Here, Mother asserts that the appeal is not moot for
the following reason:
lihether the statute is constitutional remains 2 live question
Because the grandparents’ right to visitation were never
aojidicates in the related Fanily Court case. Furthermore,
Because the Fanily Court for the Third circuit retains
jurisdiction of the related Fanily Court case until the child
Feaches the age of eighteen, nother retains the right to seek 2
edification ef the court order and an award of custody until that
tine. H.R.S. §571-46. As such, both mother and the grandparents
have a vested interest inva final determination of their rights in
this matter
We disagree. Under the general rule stated, the
transfer of custody of Child to Father destroyed the controversy
created by the filing of the petition for visitation. Indeed,
this court cannot grant Grandparents the remedy they seek on
appeal -- enforcenent of the petition for visitation -- inasmuch
as the petition expressly requested court-ordered visitation from
Nother and Mother no longer has legal custody of Child. See,
f.a., Wong, 62 Haw. at 396, 616 P.2d at 205 (holding that the
appeal was moot because “there [was] nothing left to grant [the]
appellant”); Okada Trucking, 99 Hawai'i at 196, 53 P.3d at 604
(holding that the appeal was moot “because the contract has
already been completed” and that the remedy was “no longer
available”). Grandparents appear to accept this outcome inasmuch
as they expressly state that they do not object to the dismissal
of their appeal on moctness grounds. Hence, given the apparent
lack of an adverse interest and an effective remedy, the
continued vitality of the present appeal has been conpromised.
Nevertheless, this court has recognized several
exceptions to the mootness doctrine. Of particular relevance
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
here is the public interest exception clarified in Slupecki v.
Admin, Dir, Of the Courts, 110 Hawai'i 407, 133 P.3d 1199 (2006).
Therein, we stated that “when the question involved affects the
public intes
t and an authoritative determination is desirable
for the guidance of public officials, a case will not be
considered moot.” Id, at 409 n.4, 133 P.3d at 1201 n.4.* See
infxa at 7. When analyzing the public interest exception, we
look to “(1) the public or private nature of the question
presented, (2) the desirability of an authoritative determination
for future guidance of public officers, and (3) the likelihood of
future recurrence of the question.” Kaho'chanchano, 114 Hawai'i
at 333, 162 P.3d at 727 (citing United Pub, Workers, APSCME,
Local 646, AFL CIO v, Yoai, 101 Hawai'i 46, 58, 62 P.3d 189, 202
(2002) (Acoba, J., concurring)) (brackets omitted) .
Here, there can be no question that it is in the
public's interest for this court to review the fanily court’s
ruling that Hawaii's grandparent visitation statute is
unconstitutional on its face. As to the first factor for
consideration, the underlying proceedings are, at bottom, a
private battle between Mother and Grandparents over whether
Grandparents’ access to Child is in Child’s best interest.
Nevertheless, the family court's wholesale invalidation of HRS
§ 571-46.3 injects the requisite degree of public concern. As
Mother asserts, the family court’s ruling stands to affect the
fundamental rights of many Hawai'i families. With respect to the
«We distinguished the public interest exception from the exception
Gesigned to preserve issues that are “capable of repetition, yet evading
Feview.” SlupckL, 110 Hawai't at 409 n-4, 139 B.3d at 1201 auf. We heve
recently pointed cst that although these two exceptions have been merged at
tines, they are, in fact, “separate and distinct.” Kako'ohanchang, I1# Rawai's
at'333 9.23, 162 Pad at! 727'n.23.
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
second factor, the present matter begs for an authoritative
determination inasmuch as the shadow cast over this
jurisdiction's grandparent visitation statute creates a
significant degree of uncertainty for any public officer involved
in the child custody and visitation processes. As to the third
factor, there is a strong likelihood that the issue presented
will recur. To wit, the family court found the statute
unconstitutional on its face. Thus, the issue may arise where
any custodial parent is confronted with a petition for visitation
under HRS § 571-46.3.
For these reasons, we hold that, notwithstanding the
transfer of custody of Child to Father, the present appeal is not
rendered moot in light of the public interest exception to the
mootness doctrine. See supra at 6.
We May Reasonably Conclude That HRS § 571-46.3 Is Not
Facially Unconstitutional In Light of Troxel
‘Turning to the merits of the appeal, the sole issue
presented by Grandparents is whether HRS § 571-46.3, which allows
the court to award the grandparent of a minor child reasonable
visitation if it is “in the best interests of the child,” is
facially unconstitutional in light of the United States Supreme
Court's decision in Troxel.
1. Troxel _v. Granville
In Troxel, Tommie Granville ("Granville") conceived two
daughters over the course of her relationship with Brad Troxel
("Troxel"). $30 U.S. at 60. Granville and Troxel eventually
separated and, for a period of time, Troxel regularly brought the
children to his parents’ ("Grandparents’”) home for weekend
visitation. Id. Tragically, Troxel then committed suicide. Id.
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
Following Troxel’s death, the children continued regular visits
with Grandparents until Granville decided to limit visitation to
“one short visit per month.” Id, at 60-61.
Grandparents responded by filing a petition for
visitation under Wash. Rev. Code § 26.10.160(3) (1994).* Id. at
61. Wash. Rev. Code. § 26.10.160(3) provides as follows: “Any
person may petition the court for visitation rights at any time
including, but not limited to, custody proceedings. The court
may order visitation rights for any person when visitation may
serve the best interest of the child whether or not there has
been any change of circumstances.” 530 U.S. at 61 (citing Wash.
Rev. Code § 26.10.160(3)).
Following trial, the Washington Superior Court for
Skagit County ordered “visitation one weekend per month, one week
during the sumer, and four hours on both of the petitioning
grandparents’ birthdays.” Id. The Washington Court of Appeals
reversed the trial court’s visitation order on the grounds that
Grandparents lacked standing to seek visitation under Wash. Rev.
code § 26.10.160(3) unless a custody action was pending. Id. at
62.
On appeal, the Washington Supreme Court concluded that
the plain language of Wash. Rev. Code § 26.10.160(3) imparted
standing on Grandparents. Id, at 62, However, it affirmed the
court of appeals’ ultimate decision that the Troxels could not
obtain visitation on the grounds that the statute
“unconstitutionally infringes on the fundamental right of parents
to rear their children,” without requiring a show of harm to the
* Grandparents also invoked Mash, Rev. Code § 26.09.240 (1994), but
that statute was not at issue on appeal. S30 U.S. at 61
8
177 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *°_
children. Id. at 63. Moreover, the Washington Suprene Court
declared that the visitation statute too broadly allows the state
to intrude on the affairs of the family inasmuch as “*any person’
may petition for forced visitation of a child at ‘any time’ with
the only requirement being that the visitation serve the best
interest of the child.” Id. (quoting In xe Custody of Smith,
969 P.2d 21, 30 (Wash, 1998)). It held that "[i]t is not within
the province of the state to make significant decisions
concerning the custody of children merely because it could make a
‘better’ decision,” and emphasized the need for parents to “be
the ones to choose whether to expose their children to certain
people or ideas.” Id. (Quoting Smith, 137 Wash.2d at 20-21, 969
P.2d at 31-).
On appeal, a fractured United States Supreme Court
affirmed the Washington Supreme Court's judgment, but for a
variety of reasons.
a. Plurality opinion
Justice O'Connor announced the judgment of the Court,
and her plurality opinion was joined by Chief Justice Rehnquist,
Justice Ginsburg, and Justice Breyer. Id. at 60. The plurality
held that Wash. Rev. Code § 26.10.160(3), as applied, violated
Granville’s fundamental right to make decisions concerning the
care, custody, and control of her children. Id. at 67.
‘The plurality first noted that Washington’s visitation
statute was “breathtakingly broad.” Id, In the plurality’s
view, the Washington statute permitted “any third party seeking
visitation to subject any decision by a parent concerning
visitation of the parent's children to state-court review,” and
allowed the trial judge to determine what visitation is the best
‘1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
interest of the child(ren). Id. Hence, the “practical effect”
of Washington's visitation statute was to allow a court to
“disregard and overturn any decision by a fit custodial parent
concerning visitation whenever a third party affected by the
decision files a visitation petition, based solely on the judge’s
determination of the child's best interests.” Id. (emphasis in
original).
Turning to the facts of the case, the plurality pointed
out that “[Grandparents] did not allege, and no court has found,
that [Granville] was an unfit parent.” Id. at 68. The plurality
thereafter emphasized the importance of the established
presumption “that fit parents act in the best interest of their
children.” Id. at 68. The plurality reasoned that the trial
court’s visitation order contravened the foregoing presumption
inasmuch as it (1) accorded no “special weight” to Granville’s
determination of her children’s best interests, and (2) appeared
to place the burden on Granville to disprove that visitation
would be in her children’s best interests. Id, at 69. the
plurality sunmarized its rationale as follows:
the
In an ideal world, parents might slways seek to cultivet
bonds Between grandparents and their grandenildren, Need.
say, however, our woria is far from perfect, and in it the
Gecision wether such an intergenerations) relationship would be
beneficial in any specific case 1s for the parent to make in the
first instance. And, if {it carent’s dectsion of the kind at’
iumis bere becomes aubiect to tudicial review, the court must
accord at least sone special welant to the parent's own
setermination-
Id, at 70 (emphasis added) .
‘The plurality also considered that Granville did not
seek to terminate visitation with Grandparents. Id. at 71.
Rather, Granville requested that the trial court order one day of
visitation per month and participation in Grandparents’ family
10
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holiday celebrations. Id. The trial court appeared to give no
weight to Granville’s suggested visitation plan and “settled on a
middle ground, ordering one weekend of visitation per month, one
week in the summer, and time on both of the petitioning
grandparents’ birthdays.” Id. The plurality noted that other
state statutes preclude judicial involvement unless the parent
has unreasonably denied visitation to the third party. id. at
n-2.
The plurality further observed that the trial court’s
findings denonstrated “nothing more than a simple disagreement
between [the trial court] and [Granville] concerning her
children's best interests.” Id. at 72. For example, the trial
court found that (1) Grandparents “are part of a large, central,
loving family, ali located in this area, and (Grandparents) can
provide opportunities for the children in the areas of cousins
and music,” id, at 72, and (2) “[t]he children would be
benefitted from spending quality time with (Grandparents),
provided that that time is balanced with time with the childrens’
{sic} nuclear family.” Id, (sone alterations in original and
sone added). The trial judge also reflected on his oxn personal
experiences with his grandparents in making his decision: “I
look back on some personal experiences . . . . We always spen[t]
as kids @ week with one set of grandparents and another set of
grandparents, [and] it happened to work out in our family that
{it} turned out to be an enjoyable experience. Maybe that can,
in this family, if that is how it works out.” Id, (brackets in
original).
In light of the foregoing, the plurality held that
Wash. Rev. Code § 26.10.160(3) was unconstitutional as applied to
n
‘4** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
the facts of the case, concluding as follows:
As we have explained, the Due Process Clause does not permit a
State co intringe on’ the fundamental right of parents to make
child rearing decisions simply because 2 state judge believes a
Specter” deciaion could be nade. Neither the Washington
nonparental visitation statute generally--which places no linits
on either the persons who may petition for visitation or the
Circunstences in which sucha petition may be granted--nor the
[erial court) in this specific case required anything more.
Ida at 72-73.
b, Justice Souter’ s concurring opinion
Justice Souter filed an opinion concurring in the
judgment. Id. at 75 (Souter, J., concurring). Justice Souter
stated that the dispositive analysis required no more than a
“facial
recognition that the Washington Supreme Court’
Anvalidation of its own state statute” was consistent with the
precedent established by the United States Supreme Court. Id
To wit, he perceived
no error in the second reason [iterated by the Washington Suprene
Court}, that because the state statute authorizes. any person at
any tine to request (and 2 judge to award) visitation rights,
Subject only te the State's particular best-interests standard,
the state statute sweeps too’ broadly and is unconstitutional on
Sts face.
Id, at 76. Hence, Justice Souter stated that he would affirm the
Washington Supreme Court's judgment because he did “not question
the power of a State's highest court to construe its domestic
statute and to apply @ demanding standard when ruling on its
facial constitutionality . . . ." Id, at 79 (footnote onitted).
©. Justice Thomas’ concurring opinion
Justice Thonas wrote separately to iterate his view
that the matter was more properly disposed of via a strict
scrutiny analysis
(P)arents have 2 fundanental constitutional right to rear their
children, incleding the right to determine who shall educate and
sccigiize then... 1 Would apply strict scrutiny to
Infringements of fundamental Fights. Here, the state of
2
‘+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
ashington lacks even a legitimate governmental interest--to say
nothing of @ compelling one--in second-quessing a fit parent's
Secision regarding visitation with ehira parties.
Id. at 60 (Thomas, J., concurring).
4. Justice Stevens’ dissenting opinion
Justice Stevens dissented. He opined, inter alia, that
the Washington Supreme Court's opinion was flawed, inasmuch as it
held that Wash. Rev. Code § 26.10.160(3) was unconstitutional on
its face. Id, at 85-91 (Stevens, J., dissenting). Justice
Stevens explained that, “[a]s the statute plainly sweeps in a
great deal of the permissible, the State Supreme Court majority
incorrectly concluded that a statute authorizing ‘any person’ to
file a petition seeking visitation privileges would invariably
run afoul of the Fourteenth Anendnent.” Id, at 85, He iterated
that under the Washington statute, “a onc
custodial caregiver,
‘an intimate relation, or even a genetic parent” may seek
visitation, which, depending on the facts of the case, may be
constitutional. Id.
Justice Stevens also observed that Washington Supreme
Court's holding that the Constitution requires a threshold
showing of actual or potential harm to the child before a court
may order visitation over a parent’s objection was not supported
by United States Supreme Court's case law and that “even a fit
parent is capable of tr
ting a child like a mere possession.”
Id, at 86. Justice Stevens concluded that
tthe Washington law merely gives an individval——with whom a child
nay have an established relationship--the procedural right to ask
tthe State co act ae arbiter, through the entirely well-kiows best
interests standard, between the parent’s protected interests and
the child's... (T]he Due Process Clause of the Fourveesth
Jendnent leaves’ room for States to consider the impact one child
Of possibly arbitrary parental decisions that neither
are motivated by the best interests of the child.
Id. at 91.
13
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e. Justice sali
dissenting opinion
Justice Scalia took a different tack. He first
acknowledged that, in his view, parental rights to direct the
upbringing of their children are “unalienable” under the
Declaration of Independence and the ninth amendment to the United
States Constitution. Id (Scalia, J., dissenting). However, he
questioned whether he, or any other judge, had constitutional
authority to enforce his, or their, 1
st of unalienable rights
“against laws duly enacted by the people.” Id, at 92.
Justice Scalia subsequently pointed out that only a
handful of the Court’s holdings relied on a “substantive
constitutional right of parents to direct the upbringing of their
children,” but he would not “extend the theory upon which they
rested to this new context.” Id.
Finally, Justice Scalia cautioned that if the court
desired to further develop constitutional jurisprudence with
respect to parental rights, such jurisprudence required “not only
a judicially crafted definition of parents, but also. . .
judicially approved assessments of ‘harm to the child’ and
judicially defined gradations of other persons . . . who may have
some claim against the wishes of the parents.” Id. at 92-93.
But, to do so would be tantamount to creating “judicially
prescribed, and federally prescribed, family law.” Id, at 93.
Justice Scalia stated that such issues are best left to the
discretion of state legislatures: “I have no reason to believe
that federal judges will be better at this than state
legislatures; and state legislatures have the great advantages of
doing harm in a more circunscribed azea, of being able to correct
their mistakes in a flash, and of being removable by the people.”
4
+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
Id. (footnote omitted) .
£, Justice Kennedy's dissenting opinion
According to Justice Kennedy, the Washington Supreme
Court's ruling was flawed because it essentially announced “a
categorical rule that third parties who seek visitation must
always prove the denial of visitation would harm the child.” Id.
at 96 (Kennedy, J., dissenting). In Justice Kennedy’s view, the
use of a categorical harm to the child standard is overly broad
inasmuch as it may operate to sacrifice substantial relationships
between children and third parties in order to protect the
arbitrary exercise of a parental right. Id. at 98-99. He
cautioned that “a fit parent’s right vis-a-vis a complete
stranger is one thing; her right vis-a-vis another parent or a de
facto parent may be another.” Id, at 100-01,
Given his disagreement with the proposition that the
best interest of the child standard is insufficient in all cases,
Justice Kennedy would have remanded the matter for further
proceedings to determine whether the best interest of the child
standard is insufficient under the facts of the case presented
(Lies, whether Wash. Rev. Code § 26.10.160(3) was
unconstitutional as applied) :
1 would remand the case to the state court for further
Proceedings. If it then found the statute has been applied in an
Sneonstitueional manner because the best interests of the child
Standard gives insufficient protection to # parent under the
Circunstances of this case, or if it again declared the statut
hullity because the statute sees to allow any person at all to
Seek visitation at any tine, the decision would present other
SSsues which may or nay not warrant further review in this Court.
‘The judgment tow under review should be vacates and
Feranded on the sole ground that the harm ruling that was so
ral to the Suprene Court of Washington's decision was error,
in ita broad formulation.
Id. at 94-95.
a5
‘** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
2. Troxel _does no’ Jusion that Hi =
46.3 is facially unconstitutional.
It is appropriate to commence the present analysis by
reiterating the axiom that “every enactment of the legislature is
presunptively constitutional, and a party challenging the statute
has the burden of showing unconstituticnality beyond a reasonable
doubt.” State v. Crouser, 81 Hawai'i 5, 14, 911 P.2d 725, 734
(1996) (citing State v. Gaylord, 78 Hawai'i 127, 137-38, 890 P.2d
1267, 1277-78 (1995)). Moreover, this court has said that it
will interpret a statute so as to preserve its constitutionality
whenever feasible, See State v. Raitz, 63 Haw. 64, 73, 621 P.2d
352, 359 (1980) (*(I]£ feasible within bounds set by their words
and purpose, statutes should be construed to preserve their
constitutionality.”) (Citing Altman v. Hofferber, 28 Cal.3d 161,
175, 616 P.2d 636, 846, 167 Cal. Rote. 854, 864 (Cal. 1980).).
As Mother contends, HRS § 571-46.3 does not expressly
direct the family court to give “special weight” to a fit
parent's decision regarding grandparent visitation. See supra
note 2, Mother argues that we may not simply create new
statutory requirenents under the guise of interpretation inasmuch
as such an approach would be tantamount to judicial legislation.
Mother further avers that such an interpretation would be
contrary to legislative history which “nakes clear that the
purpose of the statute was to afford the courts with discretion
to override parents’ decisions about his or her child’s best
interests."
Inasmuch as the issue presented is one of statutory
interpretation, our analysis must rest upon the plain language of
the statute and any legitimate construction thereof. See Honda
16
FOR PUBLICATION IN WEST'S HAWAll REPORTS AND PACIFIC REPORTER ***
v. Bd, of Trs. of the Pmplovees’ Ret. Svs. of the State, 108
Hawai" 212, 233, 118 P.3d 1155, 1176 (2005) (*{O]ur foremost
obligation is to ascertain and give effect to the intention of
the legislature, which is to be obtained primarily from the
language contained in the statute itself. And we must read
statutory language in the context of the entire statute and
construe it in a manner consistent with its purpose.“)
(Citations omitted.). As always, the focal point of the analysis
must be the intent of the legislature, id., keeping in mind that
the legislature is presumed not to intend to enact laws that are
unconstitutional. See Application of Ferauson, 74 Haw. 394, 400
846 P.2d 894, 898 (1993) ("[T]he legislature is presumed to have
enacted valid statutes in harmony with all constitutional
provisions.”
Here, the legislature has enacted the “best interests
of the child” standard as a precondition to court-ordered
visitation under HRS § 571-46.3. Legislative history indicates
that the “best interests of the child” standard was intended to
act as a safeguard protecting the rights of the parents:
recarcing this bill's sossibie interference with the ricnts of 2ne
Eriteria that such visitation be in the beet interests of the
Ghild. The avard of the grandparent’s visitation is not meant to
Be at the expense of the parents’ relationship with the child and
the best interests of the child. Your Conmittee believes that
Usually, absent special clrcunstances, it is in the best interests
of the child to have resonable visitation with the parents. If
the visitation of the grandparents would adversely affect. th
reasonable visitation of the parents, it would probably not be in
the best interests of the child to permit the grandparents’
wiseeation
Hse. Stand. Comm. Rep. No. 514, 1993 House Journal at 1181
uv
‘** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
(emphasis added)
the "best interests of the child” standard is to operate, the
legislature has left it open for interpretation.
Having provided no further guidance as to how
Other jurisdictions with similar opportunities have
interpreted their nonparent visitation statutes in various ways
80 as to conform with the Troxel plurality’s minimum
requirements. See Koshko v, Haining, 921 A.2d 171, 185 (Md.
2007); Soohoo v, Johnson, 731 N.W.2d 615, 824 (Minn. 2007); E.Se
MAB.Di, 8 -N.Y.3d 150, 159, 863 N.E.2d 100, 106, 831 N.Y.S.2d 96,
102 (N.Y. 2007); JW.J., Jr. vs PKR, 2007 WL 1874294, *4 (Ala.
Civ. App. June 29, 2007); Barry v. McDaniel, 934 So.2d 69, 76-77
(La. Ce. App. 2006); Dem v. Lobato, 96 P.3d 1166, 1191-92 (N.M.
Ct. App. 2004); Glidden v. Conley, 620 A.2d 197, 204-05 (vt.
+ _Mether argues that several legislative committee reports indicate
that the legislature intended to “allow a court to order grandparent
Visteation whenever the court Geterained such visitation to
Interests of the child even over the objection of & parent.” We do not
necessarily disagree with that assertion. Indeed, there can be no doubt that
the legislature intended that visitation, if found by a court to be in the
best intereste of the child, may be ordered over a parent's objection. See
Sen. Stand. Com. Rep. No. i053, in 1993 Senate Journal, at 1154 ("Your
Committee finds that. grandparente play a significant role in the lives of
incr children and should be silowed Feasonsble visitation rights #0 long as
it'is in the best interests of the child.”); lise. Stand. Comm. Rep. No. 6l1-
96, in 1996 House Journal, at 1276 ("In today's society grandparents play an
integral part in the lives of children. In the United States, millions of
grandparents care for their grandchildren when parents are sway. Your
Gconittee believes that there are tines when visitation by grandparents is in
the best interest of the child and thus shovld be encourages.) However,
Such an approach 8 not inconsistent ith Troyel. “To wit, che iroxel
plurality stated that {t]he problem « . {was} not that’ the Washington
Superior Court intervened, but that when it did so, it gave no special weight
at all to Mother's} determination her caughter’s best interests.” 530 U.S.
at 70. Ty other words, "if a fit parent's decision... becomes subject to
judicial review, the court must accord at least sone special weight to the
parent's own ceternination.” id, sence, it is irrelevant under Troxel that
nS'§ S)1-46.3 authorizes 2 court to order grandparent visitation over a fit
parent's objection. Rather, what matters is that the family court gives "at
Teast sone special weight” to the parent’s opinion. The legislative history
cited by mother certainly conveys sn intent £0 authorize a court to order
‘Visitation notwithstanding a parent's objections, but it does not contain any
indication either for or against applying a rebattable presumption in favor of
‘the parent’s objections
18
‘#** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
2003); McGovern v. MeGovern, 33 P.3d 506, 511-12 (Ariz. Ct. App.
2001); Rideout v. Riendeau, 761 A.2d 291, 298-99 (Me. 2000).
Given our obligation to adopt constitutionally sound
interpretations where “feasible,” we may reasonably conclude that
the “best interests of the child” standard in HRS § 571-46.3(2)
requires the family court to give “special weight” to (ie.
uphold a rebuttable presumption in favor of) the visitation
decisions of a custodial parent whose fitness has not been
challenged. Such @ conclusion comports with the limited
requirements expressed in Troxel and does not do violence to
either the words or the purposes of the statute. Hence, the
femily court erred to the extent that it relied on Troxel to
invalidate HRS § 571-46.3.
€. HRS § 571-46.3 Implicates a Fundamental Right and Is Not
Narrowly Tailored to Further a Compelling Governmental
Interest.
Nevertheless, we agree with Mother’s alternative
argument challenging the constitutional validity of this
jurisdiction’s grandparent visitation statute on the grounds that
the “best interests of the child” standard is insufficient in
nonparent visitation proceedings. Specifically, Mother contends
that the infringement of her fundamental right to direct the
upbringing of Child triggers a strict scrutiny analysis,
requiring that the statute be narrowly tailored to further a
compelling governmental interest.’ According to Mother, only a
showing of “harm” will satisfy the compelling governmental
te note that this is the approsch advocated by Justice Thomas in
his concurring opinion. See Troxel, 530 U.S. at 60 (Thomas, J., concurring).
as
‘+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER:
interest inguiry.*
The Troxel plurality did not address the question
wnether a finding of harm is constitutionally required. Rather,
the plurality stated:
Because we rest our decision on the eveeping breadth of
§ 26.10,160(3) and the application of that broad, unlinited power
ve do not consider the primary conaticutional
in this case, ue aon
Sendition erecedent to -aranting wisitatien We de nots and need
ot, define today the precise scope of the parental due process
Fight in the visitation context. In this respect we agree with
Sustice Kennedy that the constitutionality of any standard for
yrding visitation turns on the specific manner in which that
Stancard is apalied and that the constitutional protections in
this area are best “elaborated with care.” . . - -. Decause much
Statercourt adjudication in this context occurs on’a case-by-case
Basis, we would be hesitant to hold that specific nonperental
visitation statutes violate the Due Process Clause aes per ae
Troxel, 530 U.S. at 73 (emphasis added). Here, however, that
issue is squarely presented, and we address it.
The applicable substantive due process analysis has
been stated thus:
To state claim under the fourteenth amendment, a Létigant
must assert that sone state action has deprive the litigant of 2
Constitutionally protected “liberty” or “property” intere
See, gud, State e. Gusdey, 105 Hawai 222, 227, 96 B34. 242, 247
(Z00¢); State v. soue, 77 fawas't Si, $9, 861 P.2d 538, 546
(2394). “in determining whether « statute conflicts with the Due
Process Clause, we have applied tho tests. If a fondanental right
is inplicated, ‘the statute is subject to strict scrutiny. If,
however, 2 fundamental right is not implicated, the statute is
subject’ to the rational basis test.” state v, Mallan, 86 Hawai'i
$40;"G5a, 950 ede 178, 169" (2998)-
Ghild support Enforcenent Agency v. Doe, 109 Hawai'i 240, 247,
125 P.3d 462, 468 (2005). A majority of the Troxel Court
recognized that a parent's fundamental right to direct the
* og mlustice Kennedy's dissenting opinion strongly opposes the position
advocated by Mother == that the "best interests of the chila” standard is,
Sivays insufficient in visitation cases and that the party seeking visi
fost demonstrate that withholding visitation would harm the child: See
Teouel, $300.5. at 96 (Kennedy, J., dissenting).
20
‘+** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
upbringing of his or her child is implicated where a nonparent
third party petitions for visitation. Troxel, 530 U.S. at 67-68
(O'Conner, J., Rehnquist, J., Ginsburg, J., Breyer, J.), 17-79
(Souter, J. concurring), 80 (Thonas, J. concurring). The Troxel
plurality discussed the history of its court's recognition that
the Due Process Clause of the Fourteenth Anendment protects the
fundamental right of parents to make decisions concerning the
care, custody, and control of their children:
More than [seventy-five] years ago, in Mever 2. Nebraska,
262 0,8. 390, 399, 401 11923), we held that the “Aiberty”
brotected by’ the bus Process Clause includes the right cf parents
eS gna home and bring up children” and “to control the
education of thelr own.” Two years later, in Bierce v. 5:
268 U.8. 510. (1925), we again held thet the “liberty of
Parents and guardians” includes the right “to direct the
Uperinging aiid education of children uncer their control.” We
explained in Bierce that "(t]he child is not the mere creature of
the Stove; those who nurture hin and direct his destiny nave the
Eight, coupled with the high duty, to recognize and prepare him
for additional obligations.” Jay, at $55.” Me returned to the
subject in Prince v. Massachusetta, 321 U.s. 156 (1944), and again
Contiveed there ia a constitutional dimengion to the right of
parents to direct the upbringing of their children. “it is
Sardinal with us that the custody, care, and nurture of the
fesides first in the parents, wnose prinary function and fr
include preparation for cbligations the state can neither supply
nor hinder.” Ida, at 166
Troxel, 530 U.S. at 65-66. In Prince, the United States Supreme
Court expressed its concern for the constitutional protection of
parental rights inasmuch as it noted that the state cannot
interfere with “the private realm of family life.” Prince, 321
U.S. at 166. See Hawk v. Hawk, 855 S.W. 24 537, 578 (Tenn. 1993)
("The [United States Supreme] Court’s protection of parental
Xights thus evidences @ deeper concern for the privacy rights
inherent in the federal constitution.” (Emphases added.)).
Hawaii's appellate courts have also recognized that
parents have a fundamental Liberty interest in raising their
children. See In re Doe, 77 Hawai'i 109, 114-15, 883 P.2d 30,
2
*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
35-36 (1994) (ruling that “fundamental liberty interests” in the
custody and care of (Nother's] child compel appellate review even
though the degree of finality normally required for an appeal has
not been met”); In re D.W., 113 Haw. App. 499, 502, 155 P.3d 682,
685 (2007) (recognizing that “decisions have by now made plain .
+ that a parent’s desire for and right to “the companionship,
care, custody and management of his or her children” is an
important interest that “undeniably warrants deference and,
absent a powerful countervailing interest, protection,” but
holding that “the Constitution [does not) require{] the
appointment of counsel in every parental termination proceeding”)
(citation omitted). Parents’ right to raise their children is
protected under article I, section 6 of the Hawai'i Constitution,
which requires the showing of a compelling state interest prior
to infringing on privacy rights. Under the constitutional right
to privacy, “among the decisions that an individual may make
without unjustified government interference are personal
decisions ‘relating to marriage . . . , procreation... ,
contraception . . . , family relationships . . . , and child
rearing and education.'” State v. Mallan, 86 Hawai'i 440, 495,
980 P.2d 178, 233 (1998) (quoting Carey v, Population Serve,
Antern., 431 U.S. 678, 684-85 (1977)) (emphasis added). See also
Inve Doe, 108 Hawai'i 144, 157, 118 P.3d $4, 67 (2005) (holding
that “parents have a substantive liberty interest in the care,
sustedy, and control of their children protected by the due
Process clause of article I, section § of the Hawai'd
Constitution” (quoting In re Doe Children, 99 Hawai'i 522, 533,
87 B.3d 447, 458 (2002) (internal quotation marks omitted)
(emphasis added)); In_ce Doe Children, 99 Hawai'i at 534, 57 P.3d
22
121 FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***_
at 459 (stating that “‘parents have a fundamental liberty
interest in the care, custody and management of their children
and the state may not deprive a person of his or her liberty
interest without providing a fair procedure for the deprivation”
(quoting Hollingsworth v. Hill, 110 F.3d 733, 738-39 (10th Cir.
1997) (citations and internal quotation marks omitted)). Thus,
inasmuch as this jurisdiction's grandparent visitation statute
implicates parents’ right to raise their children as protected
under the right to privacy, it must be strictly scrutinized.
In order to survive strict scrutiny, “the statute must
be justified by compelling state interest, and drawn
sufficiently narrowly that it is the least restrictive means for
accomplishing that end." Conaway v. Deane, _A.2d _, __, 2007
WL 2702132, at *14 (Md. Sept. 18, 2007); see also St. John’s
United Catholic Church of Christ v, City of chicas, _ F.3d _,
__, 2007 WL 2669403, at *16 (7th Cir. Sept. 13, 2007); Washinaton
va Klem, 497 F.3d 272, 285 (34 Cir. 2007).
Other jurisdictions have held that the strict scrutiny
inquiry is satisfied only where denial of visitation to the
nonparent third party would result in significant harm to the
child. See In re Marriage of Cieslak, 113 P.3d 135, 145 (Colo.
2005) (“[I]n the absence of demonstrated harm to the child, the
best interests of the child standard is insufficient to serve as
‘a compelling state interest overruling the parents’ fundamental
} Moriarty v, Bradt, 827 A.2d 203, 222 (N.J. 2003)
("Because the Grandparent Visitation Statute is an incursion on a
rights.
fundamental right (the right to parental autonomy), . . . it is
subject to strict scrutiny and must be narrowly tailored to
advance a compelling state interest. Our prior jurisprudence
23
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
establishes clearly that the only state interest warranting the
invocation of the State’s parens patriae jurisdiction to overcone
the presumption in favor of a parent's decision and to force
grandparent visitation over the wishes of a fit parent is the
avoidance of harm to the child."); Roth v. Weston, 789 A.2d 431,
445 (Conn. 2002) ("Without having established substantial,
emotional ties to the child, a petitioning party could never
Prove that serious harm would result to the child should
visitation be denied. This is as opposed to the situation in
which visitation with a third party would be in the best
interests of the child or would be very beneficial. The level of
harm that would result from denial of visitation in such a
situation is not of the magnitude that constitutionally could
justify overruling a fit parent's visitation decision.”);
Williams v. Williams, 501 8.8.2 417, 418 (Va. 1998) (agreeing
with the intermediate appellate court's conclusion that “(flor
the constitutional requirement to be satisfied, before visitation
can be ordered over the objection of the child's parents, a court
must find actual harm to the child's health or welfare without
such visitation”); In re Parentage of C.AM.A., 109 P.34 405, 413
(Wash. 2005) (concluding that “RCW 26.09.240's presumption in
favor of grandparent visitation is unconstitutional under Troxel
and the application of the ‘best interests of the child’ standard
rather than a ‘harm to the child’ standard is unconstitutional
under (Smith, 969 P.2d 21, aff'd sub nom, Troxel, 530 U.S.
571")+ Ince Herbst, 971 P.2d 395, 399 (Okla. 1998) ("(A) vague
generalization about the positive influence many grandparents
have upon their grandchildren falls far short of the necessary
showing of harm which would warrant the state’s interference with
24
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
this parental decision regarding who may see the child.”); Beagle
ve Beagle, 678 So.2d 1271, 1276 (Fla. 1996) (concluding under the
privacy clause of the Florida Constitution, that the state has 2
compelling interest in ordering grandparent visitation over the
wishes of a fit parent only “when it acts to prevent demonstrable
harm to the child”); Brooks v. Parkerson, 454 S.E.2d 769, 773
(Ga, 1995) (*(W]e find that implicit in Georgia cases, statutory
and constitutional law is that state interference with parental
rights to custody and control of children is permissible only
where the health or welfare of a child is threatened.); Hawk,
855 S.W.2d at 582 ("We hold that Article I, Section 8 of the
Tennessee Constitution protects the privacy interest of these
parents in their child-rearing decisions, so long as their
decisions do not substantially endanger the welfare of their
children. Absent some harm to the child, we find that the state
lacks a sufficiently compelling justification for interfering
with this fundamental right.”). We agree with these
jurisdictions that proper recognition of parental autonomy in
child-rearing decisions requires that the party petitioning for
visitation demonstrate that the child will suffer significant
harm in the absence of visitation before the family court may
consider what degree of visitation is in the child's best
interests.
As previously noted, HRS § 571-46.3 may be interpreted
to afford “special weight” to a fit parent's visitation decision,
thus preserving its validity under Troxel. However, there is no
basis for reading in a “harm to the child” standard when the
statute’s plain language expressly refers to the “best interests
of the child.” Although we will interpret a statute in a manner
25
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
that will preserve its constitutionality, reading in a “harm to
the child” standard goes beyond interpretation and essentially
constitutes judicial legislation. See Honbo v. Hawaiian Ins. &
Guar, Co., Ltd., 86 Hawai'i 373, 376, 949 P.24 213, 216 (App.
1997) (“IE there ie any inequality or any situation that was
overlooked in the law, it is up to the legislature to make the
correction. For this court to do so under the guise of statutory
construction is to indulge in judicial legislation which we are
prohibited from doing under the doctrine of separation of
powers.”
In sum, because we believe that a “harm to the child”
standard is constitutionally required and cannot be read into HRS
§ 571-46.3 without making a substantive amendment to the statute,
we agree with Mother and the family court that HRS § 571-46.3, as
written, is unconstitutional.
IV. contusion
Based upon the foregoing analysis, we affirm the family
court's February 27, 2004 order and February 27, 2004 judgment
dismissing Grandparents’ petition for visitation rights.
on the briefs:
Elizabeth B. Croom,
for petitioners-appellants
Lois K. Perrin of the PtP anton
American Civil Liberties
Union on Foundation and
Earle A. Partington of Derain Boru Or
tthe Law office of zarle A.
Yorn 6. Ratu
26
+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER
Rochelle Bobroff for
amicus curiae AARP
Foundation Litigation
Dorothy D. Sellers and
Deizdre Marie-Iha, Deputy
Attorneys General, for
amicus curiae State of Hawai'i
2
|
bb5cad5f-0cef-4a68-9e76-e9081cf1a59b | Keller v. Bennett | hawaii | Hawaii Supreme Court | No. 28878
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
THOMAS R. KELLER, ADMINISTRATIVE DIRECTOR
‘OF THE COURTS, Petitioner,
WORK J. BENNETT, ATTORNEY GENERAL, 8
Stale OF HAWAI'T, ‘Respondents z
atte
ORIGINAL PROCEEDING
‘ORDER DISMISSING PROCEEDING
(By: Levinson, Acting C.J., Nakayama, Acoba, and Duffy, JJ.
and Intermediate Court of Appeals Judge Fujise,
in place of Moon, C.J., recused)
upon consideration of petitioner Thomas R. Keller's
motion to withdraw petition for writ of mandamus, which is deemed
a motion for dismissal pursuant to HRAP 42(b),
IT IS HEREBY ORDERED that the motion is granted and
this proceeding is dismissed.
Honolulu, Hawai'i, December 24, 2007.
Alea Penden
Pocate truer
aS
Cone Reds:
DATED:
|
107cd173-91a5-4c70-b1ff-b865384c963f | Cooper v. Liberty Mutual Insurance Company | hawaii | Hawaii Supreme Court | LAW LiseaRy
No. 27091
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
SS
HILDA COOPER, as next friend of Natasha Cooper, a minor;
GEORGE CRONACK, D.C. ; JOEL GRIMWOOD, D.C.; and SCOTT
McCAFFREY, M.D., Respondent s/Plaintifis Appellees.
LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts El
corporation, Petitioner/Defendant-Appellane.
aa
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 1RC04-1-2950))
U6 RY C2 AON LODZ
BE, PPI ON TOP CERTIORARI
Moon, for the court’)
Petitioner Liberty Mutual Insurance Company's
application for writ of certiorari, filed Novenber 5, 2007, is
hereby rejected.
DATED: Honolulu, Hawai'i, November 27, 2007,
FOR THE couRr,
Considered by: Moon, C.J., Levingon, Nakayama, Accba, and Duffy, ov.
|
26663395-9de7-4281-b27f-f399768e7729 | State v. Howe | hawaii | Hawaii Supreme Court | No. 27867
IN TRE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAT'I, Plaintiff-Appellee-Respondent,
RONALD J, HOWE, Defendant-Appellant-Petition
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04=1-0873)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Levinson, J., for the court")
Upon consideration of the application for writ of
certiorari, filed on Novenber 9, 2007, by the defendant-
appellant-petitioner Ronald J. Howe, the application is hereby
rejected.
DATED: Honolulu, Hawai"i, December 17, 2007.
FOR THE COURT: Cie,
Q.
STEVEN H. LEVpNSQU—
Associate Jusqice?
oy
AL}
James S. Tabe,
Deputy Public Defender
for the defendant-appellant-petitioner
Ronald J. Howe,
on the application
3
oats
{considered by: Moon, ¢.J., Levineon, Nakayans, Acobe, and Duffy, JJ.
|
2b383568-f257-4b3c-819d-f353a152c815 | Jou v. Argonaut Insurance Company | hawaii | Hawaii Supreme Court |
No. 27281
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
EMERSON M.F. JOU, M.D., Plaintiff-Appellant-Petitioner
vs.
ARGONAUT INSURANCE COMPANY, an Entity, Form Unknown; CITY AND
COUNTY OF HONOLULU, A Self-Insured Governmental Entity: HEMIC,
aka Hawaii Employers Medical Insurance Company, An Entity, Form
Unknown; And MARRIOTT CLAIM SERVICES CORPORATION, a Corporation,
Defendant s-Appel lees-Respondents..
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO, 03-1-1445)
(By: Levinson, J., for the court, and
‘Acoba, J., dissenting!)
Upon consideration of the application for writ of
certiorari filed on October 29, 2007, by the plaintiff-appellant-
petitioner Emerson M.F. Jou, M.D., the application is hereby
rejected.
DATED: Honolulu, Hawai'i, December 13, 2007.
FOR THE COURT:
STEVEN H. LEVI}
Associate Just:
Stephen M. Shaw,
for the plaintiff-appellant-petitioner
Emerson M.F. Jou, M.D.,
on the application
Richard F. Nakamura and
Steven L, Goto of
Ayabe, Chong, Nishimoto, Sia & Nakamura,
for the defendant-appel lee-respondent
Mariott Claim Services Corporation,
fon the opposition
Wa ©1930 L002
qa
Considered by:
Moon, €.J., Levinson, Nakayama, Acoba, and Dufty, JJ
John Reyes-Burke of
Burke NcPheeters Bordner & Estes,
for the defendant-appellee-respondent
HEMIC, aka Hawaii Employers Medical Insurance Company
fon the joinder to the memorandum in opposition to the
application
|
06daa5ec-68d2-4cf1-87c8-f2b0e9cca2c1 | Coulter v. State. ICA s.d.o., filed 01/05/2007 [pdf], 113 Haw. 160. S.Ct. Order Accepting Application for Writ of Certiorari, filed 05/29/2007 [pdf]. | hawaii | Hawaii Supreme Court |
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
IN THE SUPREME COURT OF THE STATE OF HANAT'T
---000---
MICHAEL EDWARD COULTER, &
Petitsoner/Petitioner-Appellant S
2
STATE OF HAWAI'I,
Respondent /Respondent Appellee
No. 27025
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(SPP NO. 03-1-0038; CR. NO. 2-1-1513)
NOVEMBER 30, 2007
C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
DUFFY,
Petitioner Michael Edward Coulter seeks review of the
(ICA) January 22, 2007 judgment,
MOON,
Intermediate Court of Appeals’
which affirmed the circuit court of the first circuit's
November 29, 2004 Findings of Fact, Conclusions of Law, and Order
Denying Petition for Post-Conviction Relief.’ We accepted
Coulter's application for a writ of certiorari and vacate the
judgment of the ICA.
K. Perkine presided over this matter.
Tt BOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_
Coulter asserts that the ICA gravely erzed in affirming
the circuit court order which denied his Hawai'i Rules of Penal
Procedure (HRPP) Rule 40 Petition for post-conviction relief.
Coulter argues that the manner in which the Hawai'i Paroling
Authority (HPA) set his minimum terms of imprisonment was in
violation of his constitutional rights, the applicable statute,
and. the HPA’s own guidelines.
jecause we agree that the HPA violated its guidelines
in setting Coulter’s minimum term, we reverse the judgment of the
ICA, vacate the circuit court’s order, and remand to the circuit
court with instructions to order the HPA to provide Coulter with
a néw minimum-term hearing under Hawai'i Revised Statutes (HRS)
§ 706-669.
1. BACKGROUND
a te Minsmuy and & io
In July 2002, Coulter pleaded guilty to one count of
Negligent Homicide in the First Degree, in viclation of HRS
§ 707-702.5 (1993), and one count of Accidents Involving Death or
Serious Bodily Injury, in violation of HRS § 291C-12 (1993). The
circuit court, in September 2002, sentenced Coulter to ten years
of imprisonment for each count, to run concurrently.
Subsequently, in November 2002, Coulter received =
notice informing him that the HPA would hold a hearing to fix his
minimum term of imprisonment and explaining his rights in such a
FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
hearing. A later notice set the minimum term hearing date of
January 6, 2003, which was continued until March 11, 2003 at
coulter’s request. On January 7, 2003, Covlter’s counsel sent
copies of support letters, Coulter’s autobiography, and two
transcripts to the HPA for review by the HPA Board prior to the
minimum term hearing.
Coulter appeared with counsel at the minimum term
hearing that was held on March 11, 2003.
on March 15, 2003, the HPA issued a notice and order
(“order”) setting Coulter's minimum terns of imprisonment at
seven years for each count. The Order did not specify Coulter's
level of punishment and the significant criteria upon which his
minimum decision was besed, as required by Section 111 of the
HPA’s 1969 Guidelines for Establishing Minimum Terms of
Imprisonment.
Section III of the Guidelines, entitled “Issuance of
Decision,” states:
‘he Order Establishing Minimum Terns of Inprisonment
(voc 430025) will include the specific minimum terns(s)
[sie established in years ond/er months, ‘the level of
poniensent (Level I, II, or 111) under which the inmate
Felis, and the significant criteria upon which the decision
wae Besed.
HPA's Guidelines for Establishing Minimum Terms of Imprisonnent
(1989), available at http://hawaii.cov/psd/documents/hpa/
Minimom_Guidelines.pdf (hereinafter, “HPA Guidelines
‘* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
LER PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_
Coulter, acting pro se, filed a Rule 40 Petition
challenging his minimum term order on August 21, 2003. In the
petition, Coulter made six allegations, including claims that the
HPA hearing did not comply with the statutorily-required
procedural requirements, that the HEA violated his statutory
Fight to be considered for parole, and that the minimum term
established by the HPA violated his constitutional equal
protection rights. Relevant to the present action, Coulter also
challenged the Order itself, asserting (1) that he was placed
into the wrong level of punishment, and (2) that the HPA failed
to follow its guidelines when it set his minimum terms without
stating in the Order Coulter's level of punishnent or providing
any written criteria upon which the HPA based its decision.
The State filed an answer to Coulter's petition on
September 19, 2003 and a supplemental answer on Decenber 4, 2003.
Coulter filed replies to both answers.
On December 31, 2003, the HPA, sua eponte and without
holding a hearing, issued an anended Notice and Order of Fixing
Minimum Term(s) of Imprisonment (“Amended Order”). In the
Amended Order the HPA set Coulter's mininum terms at seven years
for each count, the level of punishment at Level ITT, and
identified the significant factors used in determining Coulter's
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_
level of punishment as the nature of the offense and the degree
of injury/loss to person.?
‘The circuit court held a hearing on Coulter’s Rule 40
Petition on August 24, 2004. On November 28, 2004, the circuit
court issued findings of fact, conclusions of law, and an order
denying Coulter's petition.
B. HEA Board Composition
‘The HPA is composed of three members, one of which
serves as chairperson, and each of which is appointed for four-
year terms. HRS § 353-61 (1993).
The March 15, 2003 order setting Coulter’s minimum term
of imprisonment was signed by the Acting Chair Mary Juanita
Tiwanak. The letterhead at the top of the March Order also
Listed Lani Rae Garcia as an HPA member and Tommy Johnson as
administrator.
‘The December Amended Order, on the other hand, wa
signed by Chairman Albert Tufono. The letterhead of that order
indicates that the HPA at that time was compo:
d of two other
members, Dane K. Oda and Edvard M. Slavish, as well as
administrator Tommy Johnson. Therefore, none of the individuals
+ this information wes represented in the Anended Order in the
following fashion:
‘Level of Punishment:
factors
Level 111
\dentified in determining the level of punishnent
‘nd 2) Degree of Injury/Loss to Person.
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
who Were HPA members at the time that the March Order was issued
continued to be HPA members by December 2003, when the Anended
order was released.
‘The ICA's Decision
Before the ICA, Coulter argued that the circuit court
erred in denying his Rule 40 Petition because it wrongly
concluded that (1) Coulter's constitutional rights to due process
and equal protection were not violated and (2) the HPA properly
followed its guidelines in identifying Coulter as a Level IIT
offender. The ICA rejected these argunents, stating
Upon careful review of the record ané tl
submitted by the parties and havin,
fo the arguments advanced and the by the
Farties, we conclude that Coulter's contentions are without
Rerit. The circuit court aid not err in coneloding that
Coulter failea to prove facts sufficient to justify relic
on any of his clains, Furthernore, the HPA did not abuss
Ste dlecretion nor violate the constitutional rights of
Couiter, in setting Coulter's minimum terms of inprisennent.
9) hawal't 163,
185, 35 F.3d 210, 222 (2002)
ICA's S00 at 6.
We heard oral argument in this case on August 22, 2007.
IT, STANDARD OF SEVIEW
An HRPP Rule 40 petition is an appropriate means to
challenge a minimum term of imprisonment set by the HPA.
Williamson v, Hawai'i Paroling Auth., 97 Hawai"i 156, 34 P.34 1055
(wp. 2000), rev'd on other arounds, 97 Hawai 163, 34 P.3d 210
(2001).
ttt FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER ***_
“the disposition of an HRPP Rule 40 petition is based
on FOF [findings of fact] and COL [conclusions of law].” Raines
ws State, 79 Hawai'i 219, 222, 900 P.3d 1286, 1289 (1995).
Accordingly, we review the circuit court’s conclusions of lew de
novo and findings of fact for clear error. See id. (citing Dan
ws State, 76 Hawai'i 423, 428, 879 P.2d 528, 533 (1994).
With respect to HPA decisions establishing a minimum
term, this court has stated that “judicial intervention is
appropriate where the HPA has failed to exercise any discretion
at all, acted arbitrarily and capriciously so as to give rise to
a due process violation, or otherwise violated the prisoner's
constitutional rights.” Williamson 97 Hawai at 195, 34 P.3d at
222.
With respect to claims of procedural violations, the
court will assess whether the HPA conformed with the procedural
protections of HRS § 706-669 and complied with its own
guidelines, which the HPA was required to establish by statute.
HRS § 706-669(8) (1993).
IIT, — puscUSSION
A. Coulter's pue Process Claim
In his Application, Coulter separately challenges the
March 2003 and December 2003 actions of the HPA, alleging that
both were in violation of his due process rights. The challenges
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
he mounts are based on three grounds: constitutional due process
protections; violation of the HPA’s own guidelines; and
violations of the statutory procedural requirements.
Although Coulter raises separate challenges to each of
the two HPA actions, they are factually linked. Coulter asserts
that the first violation was committed by the HPA board as
composed on March 11, 2003, which issued the March 15, 2003
minimum-term order that failed to specify either the level of
punishment or the significant criteria upon which the decision
was based, both of which must be specified according to Section
IIT of HPA’s 1989 Guidelines. This failure, Coulter maintains,
violated his due process rights.
The second violation was allegedly committed by the HPA
board as composed on Decesber 31, 2003, when it issued the
Amended Order -- maintaining the term decision but providing the
level of punishment and significant criteria information --
without providing the normal procedures set out in HRS § 706-669,
such as notice and a hearing. Although the amended decision
could be considered a “cure” of the conclusory March Order,
Coulter contends that because the membership of the HPA
completely changed in the interim, the decision wi
in reality a
“new” decision for which he was entitled to another hearing under
HRS § 706-669. As an alternative, Coulter argues that the mere
SL EOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER“.
fact that the HPA Board completely changed composition between
the original and amended orders effected a violation of Coulter's
due process rights. In support of this argument Coulter asserts
that the new HPA Board had no basis to provide the justification
for the decision of the original, March HPA Board, in the absence
of a showing that it considered the evidence adduced at the March
hearing before issuing the December Amended Order.”
The March Order Violated the HPA Guidelines
Because we find that the HPA's minimum term decision
was in violation of the HPA Guidelines, we do not reach the
question whether the HPA violated Coulter’s constitutional due
process rights.
‘The HFA adopted the HPA Guidelines for Establishing
Minimum Terns of Imprisonment pursuant to HRS § 706-669(8), which
states:
‘The authority shall establish guidelines for the uniform
Geternination of minimum sentences which shall take inte
Secount both the nature ane degree of the offense of the
Prisoner end the prisoner's criminal history and character.
The guidelines shall be public records and shall be made
avilable to the prisoner and to the prosecuting attorney
anc other interested goverment agencies.
In connection with this alternative claim, Coulter highlights
critically important whet he terms “the complete Lack of evidence tha
32/31/03 HPA Beard reviewed oF coneidered any of the evidence eaduced at the
3/11/03 HPA hearing before Aseuing its 12/31/03 Anendea Orcer.” This fact is
Important, Coulter seerte, because “the 12/31/03 HPA Board, not having been
privy to the discussions of the 3/11/03 HPA Board, could not substitute its
bin reasoning (e.g. level of penisment and sienificent criteria upen which
the minimums were based) in support of the 3/11/03 HPA Boord’ e minimums.”
TTL EOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_
HRS § 706-669(8) (1993). Section III of the Guidelines, entitied
“Issuance of Decision,” states that “[t)he Order Establishing
Minimum Terms of Imprisonment [] will include the specific
minimum terms(s) . . . , the level of punishment . . . , and the
significant criteria upon which the decision was based.”
Coulter asserts that the HPA violated its guidelines
because its March 2003 minimum term order failed to specity
either the level of punishment or the significant criteria upon
which the decision was based, as required by the HPA Guidelines.
The failure to include this information, Coulter argues, was
arbitrary and capricious.
‘The proposition that the government must follow the
rules it sets out for itself is not controversial. Here, where
the legislature has delegated the creation of guidelines for the
uniform determination of minimum sentences to the HPA, the HPA is
not free to ignore the guidelines it has established. Cf. Peek
vs Thompson, 980 P.2d 178, 161 (Or. Ct. App. 1999) (plurality
opinion) ("Even if an agency is not required to adopt a rule,
once it has done so it must follow what it adopted.”). Even
though these guidelines do not have the force of statutory law,
compliance with such rules is required to serve the legislature's
goal of “uniform determination” of minimum sentences. HRS § 706-
669(8). Indeed, this court has described the availability of
10
{2 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER °**_
such guidelines as one of the procedural protections afforded to
prisoners by statute. See Williamson, 97 Hawai'i at 194, 35 P.3d
at 221. Deviating from such rules, without explanation,
constitutes arbitrary or capricious action that violates a
prisoner's right to uniform determination of his or her minimum
sentence.‘ See id, at 195, 35 P.3d at 222 ("(JJudicial
intervention is appropriate where the HPA has . . . acted
arbitrarily and capriciously so as to give rise to a due process
violation... .")-
Nor does the State contest the fact that the March
order was not in conformity with the HPA Guidelines. The only
remaining question, then, is whether any other consideration
renders HPA’s omission harmless or otherwise deprives Coulter of
‘a remedy. The State makes two arguments: (1) that the
deficiency was “cured” by the Decenber 2003 order, rendering
Coulter's complaint moot; and (2) that Coulter did not suffer any
“actual prejudice” such that he is entitled to a remedy.
c. ecenbe: o cure”
Violation
The State argues that “at best, what (Coulter) is
entitled to is to have the HPA reissue his minimum term order
+ the Guidelines thenselves provide that the HPA nay deviate either
above or below the minimum tern Lengths that the Guidelines suggest, but that
ny such deviation “ehell be acconpenied by written justification and be nace
a'pert of the Order Establishing Minimum Terme ef Imprisonment.”
n
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND.
|C REPORTER ***
with the level of punishnent and significant criteria stated,
which 1s what the [HPA] did in issuing the 12/31/03 Notice.”
In support of this argument, the State relies on the
Utah Suprene Court’s decision in Preece v, House, 686 P.2d 508
(Utah 1994). In Preece, a prisoner petitioned for habeas release
after the parole board set his recommended sentence departing
from the sentencing guidelines, but did not give an explanation
for this departure as required by its rules. Agreeing that the
board failed to comply with its rules, the Utah Suprene Court
concluded that the petitioner was nonetheless not entitled to
habeas relief on this ground, stating that
the appropriate renedy in this case was to order the beard
to comply’ with its rules by giving Preece » written
explanation for its decision te retain the October 1996
Wowever, this relief ‘can no longer affect
of the Iitigants’” because the Board gave Ereece
‘planation for ite decision during the. pendency
Gr this appesl. Therefore, this aspect of the petition it
Id. at 512 (citation omitted). The State argues that because
‘the December Amended Order apparently satisfied the Guidelines by
including the information missing from the earlier order, that
Coulter received all the remedy to which he was entitled.
* the court in Eraece ultimately helé, however, that the parole board
violated hie procedural ane substantive due process rights uncer the Utah
Constitution which entitle 2 prisener to know, with resscnable edvance notice,
inforsation the beard will be considering at the original parole grant
hearing. id, st £12. On this ereund, the court ordered a new hearing before
the board. Ia
2
—1*2. BOR PUBLICATION IN WEST'S HAWAS'I REPORTS AND PACIFIC REPORTER ***_
Without passing on the merits of the Preece analysis,
At is clear that the procedural defects in this case distinguish
Coulter's situation from that of the petitioner in Preece.
Because the HPA, at the time it issued the Amended Order,
consisted of completely different members, it is unclear whether
the Amended Order reflected the same level of punishment and
significant criteria “upon which the [original] decision was
based.” HPA Guidelines at 2. Moreover, the correction came a
full nine months later, only after Coulter sought relief through
a HRPP Rule 40 petition. Under these circumstances, the HPA has
veered from the legislature's directive of “uniform
determination” of minimum sentences, and the December Amended
order cannot be said to have “cured” the initial violation.
D. Coulter Need Not Demonstrate Prejudice to Seek Relief from a
Violation nes.
‘The State also argues that under State v. Monalim, 89
Hawai'i 474, 974 P.2d 1064 (App. 1998), Coulter did not suffer a
procedural due process violation because he has not shown that
the HPA’s actions caused hin “actual prejudice.” In Monalim, a
prisoner raised constitutional, statutory, and administrative-
rule based challenges to the failure of the HPA to hold his
parole revocation hearing within the statutory and rvle-based
sixty-day period, when a power outage necessitated that the
originally-scheduled hearing be cancelled. Id. at 475, 974 P.24
3
#** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,
at 1065. The ICA remanded the case for further consideration
after holding that:
2 petitioner is not entitied to relief for the HPA's failure
fo comply with the tine limit specified in HRS §.706-670(7)
Unless the record shows that the failure to comply (1) wae
unreasonable and (2) caused the petitioner actusl prejudice.
Id. In support of this proposition, the ICA relied on a case
from the United States Court of Appeals for the Fifth Circuit,
which held that a habeas petitioner is not entitled to habeas
relief when the United States Penal Commission failed to grant a
parole revocation hearing within ninety days of arrest but no
actual prejudice to the petitioner was shown. See Villarreal v
WS. Barole Comm'n, 985 F.2¢ 835, 837 (Sth Cir, 1993).
The present case is distinguishable from Monalim, as
that case was confined to the parole revocation context and
concerned a time delay rather than other procedural
irregularities. The absence of the level of punishment and
significant criteria information in Coulter's minimum term order
Anfected the validity of the order itself in a very different way
than would the procedural delay of such a hearing due to
circumstances beyond the control of any party. When a hearing is
merely delayed, it is unclear what purpose @ remedy could serve
where a proper hearing is eventually held and no prejudice
results. In this case, however, it is possible that a new
hearing could lead to a different minimum term order because the
FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *
HPA’s decision-making will be constrained by the requirement that
it provide a basis for its decision, or otherwise explain a
deviation from its guidelines. See supra note 4.
IV. GoNcLUSTON
Therefore, the HPA’s minimun term order was in
violation of the HPA Guidelines. Accordingly, the ICA erred in
affirming the ruling of the circuit court denying Coulter's HRPP
Rule 40 petition.
‘The January 22, 2007 judgment of the ICA is vacated and
the case is remanded to the circuit court to enter an order
(1) vacating its Novenber 29, 2004 order, and (2) directing the
HPA to hold a new hearing to determine Coulter's minimum term of
imprisonment, pursuant to HRS § 706-669.
Phyllis 3. Hironaka,
Deputy Public Defender, Gre
(sat K. Freedman, Deputy
Public Defender, with her MRLs
on the brief), for petitioner/
petitioner-appellant
Rescues © Tease Te
Lisa M. Itomura,
Deputy Attorney General,
(Bryan C. Yee and Diane K.
Taira, Deputy Attorneys General,
with her on the briefs), for Yores «Adi
respondent /respondent appellee
1s
|
6399a1ec-28ee-4f39-b211-3d5d88023e55 | State v. Gomes | hawaii | Hawaii Supreme Court | LAW LIBRARY
no. 27906
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
eee
STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
vs.
KEITH DANIEL GOMES, Petitioner/Defendant~Appellant
OO
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NOS. 05-1-0661; 05-1-1181)
Et eR
(By: Acoba, J., for the court")
Petitioner/Detendant-Appellant Keith Daniel Gones's
application for writ of certiorari, filed on October 31, 2007, is
accepted and will be scheduled for oral argument. The parties
will be notified by the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai'i, December 12, 2007.
FOR THE COURT:
Phyllis J. Hironaka, Deputy
Public Defender, on’ the
pplication for’ petttiones/ =
SElendaneceppeitene. g
ae 2
BE 2
RF
7 y
o
|
2a1389e6-0cd9-450d-afc7-930fc50691a4 | In re Duchek | hawaii | Hawaii Supreme Court | No. 29600
IN THE SUPREME COURT OF THE STATE OF HAWAL Tey
IN RE SUSAN M. DUCHEK, Petitioner.
ORIGINAL PROCEEDING
JON 10 RESIGN AND SURRENDER
(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ-,
and Intermediate Court of Appeals Associate Judge Foley,
‘assigned by reason of vacancy)
Ont Ra [el ead ue
Upon consideration of Petitioner Susan M, Duchek'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 Duchek 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 Duchek shall comply with the
notice, affidavit, and record requirements of sections (a), (bl,
(a), and (g) of RSCH 2.16.
If IS FINALLY ORDERED that the Clerk shall remove the
name of Susan Mary Duchek, attorney number 4382, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order.
DATED: Honolulu, Hawai'i, February 13, 2009.
Gre
Punta CRagajame
n——
& oN
TK r
oats
|
4769fa2e-dad5-4cd0-822c-3765f56b5fdf | State v. Huynh | hawaii | Hawaii Supreme Court | No. 25640
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
nY 02 AON LOZ
STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
vs. =|
TAM VAN HUYNH, Petitioner/Defendant-Appellant
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 0-1-2474)
oi JECTING AP! FOR Wi
(By: Duffy, J., for the court)
Petitioner/Defendant-Appellant Tam Ven Huynh’ s
application for e writ of certiorari, filed on October 8, 2007,
is hereby rejected.
DATED: Honolulu, Hawai‘, November 20, 2007.
FOR THE couRT:
Cone deat. +
Associate Justice
cynthia A. Kegiwada
for pet itioner/defendant-
appellant on the application
| Ache, and Ooty, 29.
considered ty: Meer, €.9., Levingen, Ne
aaws
|
09f4e3bb-f639-45b0-8265-b4255807fd66 | State v. Marshall | hawaii | Hawaii Supreme Court | LAW LIBRAR
No. 27694
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
i
STATE OF HAWAI'I, Respondent-Plaintiff-Appellee
vs.
THOMAS W. MARSHALL, Petitioner-Defendant-Appellee.
ee
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFFIC NO. 005320490)
(By: Nakayama, J., for the court®
‘and Acoba, J, dissenting)
Petitioner-Defendant-Appellant’s application for writ
of certiorari filed on October 29, 2007, is hereby rejected.
December 13, 2007.
DATED: Honolulu, Hawai'i,
FOR THE COURT:
Picea CPE ees
Associate Justice
Timothy I. MacMaster
for petitioner-defendant-
appellant on the application
OZ kd C1 3u co
Moon, C.J. uevingon, Nakayona, Acoba, and Duffy, J
‘considered by:
azn
|
3cf8f6f9-b1ce-43e1-a4b2-b9d8aef906b4 | Office of Disciplinary Counsel v. McNeff | hawaii | Hawaii Supreme Court | No. 26539
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
vs. i
92 40M tang
CYNTHIA KAY McNEFF, Respondent
(ope 04-036-8016) ai
SI
ORDER OF REINSTATEMENT
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Respondent cynthia Kay MeNeff"s
petition for reinstatement to the practice of law, Chief
Disciplinary Counsel's affidavit regarding reinstatement, and the
record and files in this case, it appears that Respondent McNert
has complied with requirenents of Rule 2.17(b) of the Rules of
"1 (RSCH) and has paid
the Suprene Court of the State of Hawa
court-ordered costs, but, as Respondent McNeff readily admits,
did not comply with the requirements of RSCH 2.16(d). Respondent
NeNeff is adnonished that she is obliged to know the court rules,
but we will not deny reinstatement when no harm has resulted from
the failure to comply with RSCH 2.16(d). Therefore,
BP IS HEREBY ORDERED that Respondent Cynthia Kay McNeff
is reinstated to the practice of law in the State of Hawai'i and
may resume the practice of law upon payment of all required
registration fees. See RSCH 17, This order is effective upon
entry.
DATED: Honolulu, Hawai'i, November 20, 2007.
cynthia Kay MeNefe,
reopondent, on the O
petition.
carole R. Richelieu, Chief Bey Lacenae~
Disciplinary Counsel, for
petitioner, on the s, Cee
affidavit.
|
c91a1efb-163c-48d5-a32b-ceb40cbd1194 | Shiga v. Hawaiian Mission Academy | hawaii | Hawaii Supreme Court |
No. 27857
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
KIYOSHI SHIGA, individually and in his capacity as parent, agent,
and assignee of the rights and claims of his son, Daisuke Shiga,
and DAISUKE SHIGA, Petitioners,
Plaintiffs-Appellants, Cross-Appellees,
HAWAIIAN MISSION ACADEMY and JOSUE ROSADO,
Respondents, Defendants-Appellees, Cross-Appel lam}
and
qa
DOE persons and/or Entities 1-5, Defendants. &|
ah sitny 61 230 L002
HAWAIIAN NISSION ACADEMY and JOSUE ROSADO, Respondents,
‘Third-Party Plaintiffs-Appellees, Cross-Appellants
AYA OHARA and CHIKAKO TSUDA, Individually and in her capacity as
the parent and natural guardian of Aya Ohara, Defendants.
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CIV. NO, 04-1-1705)
(By: Nakayama, J., for the court’)
Petitioners-Plaintiffs-Appellants, Cross-Appellees’
application for writ of certiorari filed on November 16, 2007, is
hereby rejected.
DATED: Honolulu, Hawai'i, December 19, 2007.
FOR THE COURT:
Dennis ¥. Jung for
petitioners on the a
application et a Neale nee |
Associate Justice
‘considered by: Moon, C.J., Levinson, Nal
|
74361831-dc2f-48ce-994a-a6b27753e622 | Brower v. Cardoza | hawaii | Hawaii Supreme Court | No. 28860
¢- 330.002
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
1
6422 |
ANDREA BROWER, Petitioner,
‘THE HONORABLE JOSEPH E. CARDOZA, JUDGE OF THE CIRCUIT COURT
Respondent.
OF THE SECOND CIRCUIT, STATE OF HAWAI'I,
THE SIERRA CLUB, a California non-profit corporation
registered to do business in the State of Hawai'i;
MAUI TOMORROW, INC., 2 Hawaiian non-profit corporation,
KAHULUI HARBOR COALITION, an unincorporated associatior
‘THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAI"
BARRY FUKUNAGA, in his capacity as Director of the
Department of Transportation of the State of Hawai'i;
MICHAEL FORMBY, in his capacity as the Director of
Harbors of the Department of Transportation of the State
of Hawai'i; and HAWAII SUPERFERRY, INC., Respondents,
Real Parties in Interest.
ORIGINAL PROCEEDING
(cIv. No. 05-1-0114)
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of petitioner Andrea Brover’s
petition for a writ of mandamus and the papers in support, it
appears that (1) the setting of the December 14, 2007 hearing
date on petitioner’s motion to intervene in Civil No. 05-1-0114
was within the discretion of the respondent judge and was not a
flagrant and manifest abuse of discretion, and (2) petitioner's
challenges to Civil No. 05-1-0114 may be raised in the circuit
court if petitioner is granted intervention. 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. 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. where 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 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,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATE!
Honolulu, Hawai'i, December 7, 2007.
See Ecrnse—
Pccuse Case your
eon—e
Gore Sete
|
a6a720c3-5a26-4d6a-b963-b691ab6b3ed6 | Sher v. Cella | hawaii | Hawaii Supreme Court | No. 27715
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
EDWARD SHER and MONA SHER, Petitioners/Plaintiffs/appellees,
vs.
ROBERT J. CELLA, CBIP, INC., dba COLDWELL BANKER ISLAND
PROPERTIES; TOM TE2AC;’Respondents/Defendants/Appellants,
and
SOTHEBY'S; WAILEA REALTY CORPORATION: and DOES Be.
Defendants /Appellees.
oat
CERTIORARI TO THE INTERMEDIATE COURT OF APPEAI
(CIV. NO. 05-1-0100(3))
(By: Nakayama, J., for the court’)
Petitioners-Plaintiffs-Appellees Edward Sher and Mona
Sher’s application for writ of certiorari filed on October 1,
2007, is hereby rejected
DATED: Honolulu, Hawai'i, November 9, 2007
FOR THE COURT:
uate bade er
Associate Justice
William M. McKeon, Keri C.
Mehling, and Jason C. Zhao of
Paul Johnson Park & Niles
for petitioners-plaintiffs-
appellees on the application
‘considered by: Moon, €.J., Levinson, Na
1a, Reobe, and Duffy, 33
|
cde3d17f-1bac-4856-a2de-b26d8e429b1f | Del Monte Fresh Produce | hawaii | Hawaii Supreme Court |
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HANAT'I
00:
2 930 Lane
DEL MONTE FRESH PRODUCE (Hawaii), INC., Plaintiff-Appelled
8
FIREMAN’S FUND INSURANCE COMPANY; AMERICAN HOME ASSURANCE
COMPANY; AMERICAN RE-INSURANCE COMPANY; COMMERCIAL UNION
INSURANCE COMPANY; LEXINGTON INSURANCE COMPANY; NATIONAL
CONTINENTAL INSURANCE COMPANY; MOTOR VEHICLE CASUALTY COMPANY,
and LONDON MARKET INSURERS, Defendants-Appellants,
and
CONTINENTAL INSURANCE COMPANY, LUMBERMENS MUTUAL INSURANCE:
COMPANY, CIGNA PROPERTY & CASUALTY COMPANY; PROGRESSIVE CASUALTY
COMPANY, ACCIDENT & CASUALTY COMPANY, ACCIDENT & CASUALTY COMPANY
NO. 2 A/C, ACCIDENT & CASUALTY INSURANCE COMPANY NO. 3 A/C,
ANDREW WEIR INSURANCE COMPANY, LTD., ARGONAUT NORTHWEST INSURANCE,
COMPANY, LTD., ASSICURAZIONI GENERALI DI TRIESTE DE VENEZIA,
ASSICURAZIONIS GENERALI S.P.A., BELLAFONTE INSURANCE COMPANY,
BERMUDA FIRE & MARINE INSURANCE COMPANY, BISHOPSGATE INSURANCE
COMPANY, LTD., BRITISHGATE INSURANCE COMPANY, LTD., BRITISH
NORTH-WESTERN’ INSURANCE COMPANY, LTD., DELTA‘LLOYD NON LIFE
INSURANCE COMPANY, LTD., EDINBURGH ASSURANCE COMPANY, LTO. ,
EXCESS INSURANCE COMPANY, LTD., FIDELLIDADE INSURANCE COMPANY,
LTD., HAWK INSURANCE COMPANY, UTD., HELVETIA INSURANCE COMPANY,
LTD., HIGHLANDS INSURANCE COMPANY, LONDON & OVERSEAS INSURANCE
COMPANY, LTD., MENTOR INSURANCE COMPANY, (UK), LTD., MINSTER
INSURANCE CO., LTD., MUTUAL REINSURANCE COMPANY, LTD., NATIONAL
CASUALTY COMPANY OF AMERICA, NEW LONDON REINSURANCE COMPANY,
LTD., RIVER THAMES INSURANCE COMPANY, LTD, ST. HELEN'S INSURANCE
COMPANY, LTD., ST. KATHERINE INSURANCE’ COMPANY, STRONGHOLD
INSURANCE COMPANY, LTD., SWISS UNION GENERAL INSURANCE CO., LTD.,
TUREGUM INSURANCE COMPANY, LTD., WALBROOK INSURANCE COMPANY,
LTD., WINTERTHUR SWISS INSURANCE COMPANY, WORLD AUXILIARY
INSURANCE CORPORATION, LTD., YASUDA FIRE & MARINE INSURANCE
COMPANY (UK), LTD., CERTAIN’ UNDERWRITERS AT LLOYD'S LONDON,
CERTAIN UNDERWRITING SYNDICATES AT LLOYDS, LONDON, DEL MONTE
CORPORATION, RJR NABISCO, INC., AND DOES 1 THROUGH 2000,
INCLUSIVE, Defendants.
SSS
No. 24647
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 97-3323)
DECEMBER 26, 2007
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.,
AND ACOBA, J., CONCURRING SEPARATELY, WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY NAKAYAMA, J.
Defendant-Appellant Fireman's Fund Insurance Company
("Pirenan’s Fund”), appeals from the order of the Circuit Court
of the First Circuit (“ezeuit court”) filed August 29, 2001,
granting partial sunmary judgment in favor of Plaintiff-Appellee
Del Monte Fresh Produce (Hawai'i), Inc. ("Del Monte Fresh”), and
denying Fireman's Fund's motions for summary judgment.’ On
appeal, Firemen’ s Fund presents the following points of error:
(2) the circuit court erred when it chose to apply the law of
Hawai'i rather than Californias (2) even assuming, arguendo, that
Hawai'i law applies, the circuit court misapplied this court's
jurisprudence relating to insurance contracts; (3) the circuit
court misinterpreted and misapplied the word “suits” in its
insurance policies when it determined that Fireman's Fund owed a
duty to defend to Del Monte Fresh; and (4) the circuit court
erred when it determined that Fireman's Fund oved a duty to
indemnify on the basis that costs incurred in administrative
proceedings are covered under the insurance policy as “damages.”
Defendants-Appellants American Home Assurance Company
(“American Home”), Lexington Insurance Company (“Lexington”),
American Re-Insurance Company (“American Re~Insurance”),
+ the Honorable Gary W.
chang presided.
2
'* FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
—EQR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** _
Commercial Union Insurance Company ("Commercial Union”), tiondon
Market Insurers, Motor Vehicle Casualty Company (*Motor
Vehicle"), and National Continental Insurance Company (*National
Continental”) appeal from the circuit court’s separate August 29,
2001 order denying their joinders in Fireman's Fund's motions for
summary judgment. On appeal, these remaining insurers
essentially reiterate the points of error raised by Firenan’s
Fund, with London Market Insurers, National Continental,
Commercial Union, and American Re-Insurance additionally
asserting that, as excess liability insurers, providing coverage
is contingent upon the primary insurers’ responsibility to
provide and exhaust their coverages under their respective
policies.
For the following reasons, we hold that the circuit
court erred when it determined that insurance coverage was
assigned by operation of law to Del Monte Fresh. We also hold
that the assignment by contract was invalid inasmuch as none of
the insurers consented to the assignment. Accordingly, the
circuit court’s August 29, 2001 orders are vacated, and the ca:
is remanded with instructions to enter summary judgment in favor
of Defendent-Appellant insurers and against Del Monte Fresh
consistent with this opinion.
A, Factual Background
1. Corporate history
In the 19408, California Packing Corporation began
Pineapple growing operations on the island of C'ah, Hawai'i,
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
California Packing Corporation renamed itself Del Monte
corporation in 1967, In February 1979, Del Monte Corporation
merged with R.J. Reynolds Merger Corp. (a subsidiary of R.J.
Reynolds Industries, Inc.), pursuant to a Plan of Merger dated
Noverber 3, 1978. The surviving corporation, R.J. Reynolds
Merger Corp., renamed itself Del Monte Corporation ("Del Monte
corp.") immediately following the transaction.
Pursuant to a stock and asset purchase agreement dated
‘August 23, 1989, Del Monte Corp. agreed to sell various of its
subsidiary fruit companies along with its operations in Hawai'i
to Profwheel B.V. (a Dutch corporation owned by Polly Peck
International PLC, an English corporation). On October 11, 1989,
PPI Del Monte Fresh Produce (Hawaii) Inc. (“PPI-Del Monte Fresh")
was incorporated in Delaware. ‘Through a Bill of Sale and
Assumption Agreement executed on October 17, 1989, Del Monte
Corp. and its corporate parents transferred the assets and
Mabilities associated with its Hawai'i operations to PPI-Del
Monte Fresh. PPI-Del Monte Fresh removed the “PPI” prefix from
its corporate name on October 14, 1992.
2 ts ice letter”
Fron the early 1940s to at least 1978, Del Monte Corp.
and its predecessors owned and operated a six-thousand acre
pineapple plantation located in Kunia on the island of O'ahu,
Hawai'i, At the time of commencement of the instant case, this
land was operated by Del Monte Fresh. In 1994, this land was
placed on the U.S. Environmental Protection Agency's (“EPA”)
National Priorities List of contaminated sites after an EPA
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
investigation revealed that the land had been contaminated with
fumigants.
‘This investigation revealed that on April 7, 1977, a
“trailer-type container owned by (Dow Chemical Company)”
delivered the fumigant ethylene dibromide to Del Monte Corp.,
which reportedly may have been contaminated with dibrono-3-
chloropropane. While the funigant was being transferred from 2
“trailer-type container” to the on-site storage through a
connecting hose, the connection broke or ruptured. The EPA
determined that this caused the release of hundreds of gallons of
fumigant into the soil located in the area on the plantation
known as Kunia Camp, which is in the vicinity of a drinking water
well known as the Kunia Camp Well. The EPA further noted that
“folther releases of fumigants to the soils are believed to have
occurred over time at the Site, during transfer of fumigant fron
bulk storage to supply trucks.”
On April 14, 1980, the EPA collected groundwater
samples from the Kunia Camp Well. Testing of the water samples
indicated that the water contained both fumigant and contaminant
in levels exceeding federal and state limits. Additionally,
testing of the soil by the EPA in the vicinity of the storage
area resulted in the same conclusion. On April 25, 1980, the
Kunia Camp Well was disconnected from the potable water systen.
On April 28, 1995, the EPA issued a “special notice
Letter" to del Monte Fresh as a “potentially responsible party”
under the Comprehensive Environmental Response, Compensation, and
1+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
Liability Act (“CERCLA").? In a separate “special notice letter”
dated on the same day, the EPA also named Del Monte Corp. as a
spotentially responsible party.” EPA asserted that Del Monte
Fresh was liable for cleanup of the site, for reimbursement of
the costs of the EPA investigation, and for conducting a renedial
investigation and feasibility study.” Del Monte Fresh responded
to the EPA and, in September 1995, entered into an
vadministrative Consent Order” with both the EPA and the State of
Hawai'i, whereby Del Monte Fresh agreed to undertake the renedial
investigation and feasibility study. Following its receipt of
the EPA’s “special notice letter,” Del Monte Fresh tendered the
defense of the EPA claim to all liability insurers of the Kunia
land since the 1940s. Most of the insurers denied coverage.
3. The insurers
‘There are several insurers whose policies are relevant
to the instant appeal. It is undisputed that the insurance
policies in the instant case contain a no assignment clause that
requires the consent of the insurer to bind it to any assignment
+ sa8 42 U.8.C. $8 9601-3675 (2000).
> the EPA noted in its “special notice letter” that it had incurred
400, 622.€0 in estimated response costs related to the Kunia site, and also
that it intended to conduct 2 "Remedial Investigation/Feasibility Study” of
the site, where Del Monte and the other potentially responsible parties were
SIfvices” te perticipates This invitetion was co “conduct or finance” the
analyses required for site renediation. The EPA demanded payment for the
aforementioned $60, 622,60 of coats Lt had incurred, and put the potentially
Fespensible parties on notice that they were “potentially liable for all
Expenditures plus interest” with respect to any additional costs the EFA would
SMEcrin the futue. The EPA notice stated that if the potentially
Fesponsibie parties oid not respond, the EPA had the ability to, jater aliar
(i) onlatersily order the potentially responsible parties to perform the
Senediation analysis, of (2) bring civil suit against the potentially
Fesponsible parties
FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER **
made by Del Monte Corp., who is the named insured.‘ It is
further undisputed that a1 insurance policies were in effect but
expired prior to the 1989 sale.
Primary liability insurance was provided by both
Fireman's Fund and American Home. The relevant Fireman's Fund's
policies provided continuous coverage to Del Monte Corp. as the
named insured from May 31, 1969, until May 31, 1978. American
Home provided primary liability insurance naming Del Monte Corp.
as the named insured from March 1, 1982, until May 1, 1986.
American Home also provided excess liability insurance
coverage to Del Monte Corp. between March 1, 1982, and December
31, 1985. Excess Liability insurance was provided to Del Monte
Corp. by the remaining Defendant-Appellant insurers during
different periods of time between 1967 and 1982.
Procedural Background
On Auguat 13, 1997, Del Monte Fresh filed a complaint
in circuit court seeking, inter alia, a judicial declaration that
numerous insurers owed it duties to defend and indemnify in the
EPA investigation.
On May 10, 2001, Fireman’s Fund filed a motion for
<The parties do not dispute that Del Monte Corp. was the named
ingured on all relevant ineurance policies:
+ _,Specifically, remaining Defendant-Appellant sngurers adnit thet
coverage wes provided between the following time Periods: (1) Londen Market
Insurers between 1967 and 1979; (2) Commercial Union between Febraary 26,
1870, and Februsry 22, 1973; (3) American Re-insurance between Haren 10, 1975,
and Hay 31, 1977;"(4)' National Continental Between August 91, 1970, and’ August
31, 1973, ae well a3 between September 23, 1973, ang Septenber 23, 1376) 13)
Lexington Insurence Conpany between Septenber 25, 1976, and Septesber 23,
1979; and (6) Motor Vehicle between September 29, 1979, and September 29,
1982.
FOR PUBLICATION IN WES
HAWAII REPORTS AND PACIFIC REPORTER
summary judgment asserting that Del Monte Fresh was not an
insured under the terms of its policies. Fireman’s Fund filed a
second motion for summary judgment on May 10, 2001, claiming that
there was no “suit” and also no “legal damages” that would serve
to trigger coverage for the benefit of Del Monte Fresh under its
policies. All other defendant-appellant insurers filed
substantive joinders in Fireman’s Fund's motions for summary
judgment. Del Monte Fresh responded with corresponding cross~
notions for summary judgment.
The circuit court granted Del Monte Fresh’s cross-
motions for summary judgment and orally explained its reasoning
at a hearing held on August 6, 2001.‘ In particular, the circuit
court expressed the following conclusions: (1) “believeld] it's
not necessary really to make a formal finding on the conflict of
law issue[]s (2) determined that “some or all of the claims . .
. for which (Del Monte) is seeking coverage|] arose at the time
when Del Monte [Corp.] was the insured and . . . arose under (Del
Monte Corp.'s] watch[
(3) “where a successor corporation seeks
coverage and that coverage really does not increase the risk to
the [insurance] carrier, then by operation of law, coverage
should be extended to the [claimant] (]”s (4) pursuant to Henkel
corp. v. Hartford Accident and Indemnity Co., 88 Cal. App. 4th
876, 106 Cal. Rptr. 24 341 (2001), rev'd, 29 Cal. ath 934, 62
circuit court's August 28, 2001 written order denying
Fireman's Fund's notions for summary Judguent and granting Del Monte’ s cross~
notions for sinnary jodgnent did not contain any reasoning
8
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
P.3d 69, 129 Cal. Rptr. 2d 828 (2003),” and Northern ins, Co. of
New York v, Allied Mut, Ins, Co., 955 F.2d 1353 (9th Cir. 1992),
the insurer's policies were assigned to Del Monte Fresh from Del
Monte Corp. by operation of law; and (5) the Defendant-Appellant
insurers had a duty to defend and indemnify Del Nonte Fresh
inasmuch as (a) there was “sone level of ambiguity” as to the
term “suit,” (b) “[t]he [EPA] proceedings . . . are largely the
functional equivalent of civil actions (and) take on all the
characteristics and obligations of those of a lawsuit{,]” such
that “those . . . administrative matters(] are law suits,” and
(c) “the term ‘suit’ is not limited to civil actions only and the
word ‘damages’ is not limited to compensation awarded in a civil
action.”
The circuit court issued two orders on August 29, 2001.
The first order denied Fireman’s fund’s two motions for summary
Judgment and granted Del Monte Fresh’s two corresponding cross-
motions on the “not an insured,” “no suit,” and “no legal
damages” issues. The second order denied a1 joinders in
Fireman's Fund’s motions, except as to Commercial Union's
regarding the duty to defend issue." On October 24, 2001, the
circuit court certified the first summary judgment order for
appeal pursuant to Hawai'i Revised Statutes (HRS) § 641-1(b)
At the time of the circuit court’s ruling, Henkel wes pending
appeal in the Supreme Court of Caliternis.
Connercial Unicn is asserting in ite points of error thet the cisculs court
erred in its resolution of the duty to defend Lesue.
8
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
(2993).? Certification of the second summary judgment order for
appeal followed on October 25, 2001. All Defendant-Appellant
insurers filed timely notices of appeal on October 25 and 26,
2001.
ITT. STANDARDS OF REVIEW
A. Summary Judgment
on appeal, the grant or denial of summary judgment is
reviewed de nove. See State ex. rel. ity and County of
Honolulu, 99 Hawai'i 508, 514, 57 P.3d 433, 439 (2002); Bitney ve
Honolulu Police Dep't, 96 Hawai's 243, 250, 30 P.3d 257, 264
(2002).
[Slunmary judgment is appropriate 1f the pleadings, depositions,
Enevars to interrogatories, and sdnissions on file, together with
the affidavite, if any, show that there is no genuine issue as to
any aateriai fact and that the moving party 1a entitied to
Judgment az a matter of law. A fact 1 material if proof of that
Fact would have the effect of establishing or refating one of the
fueential elements of a cause of action oF defense asserted by the
farties. The evidence mist be viewed in the Light most. favorable
Eolthe non-noving party. In ather words, we must view all of the
cvicence and inferences draun therefrom in the Light most
favorable to the party opposing the motion
Kahale v. City and County of Honolulu, 104 Hawai" 341, 344, 90
P.3d 233, 236 (2004) (citation omitted).
B. Interpretation of Insurance Policies
Hewai"s Revised Statutes (*HRS") § 641-1(b) (1993) provide
pon applicetion made within the time provided by the rules of
court, sn appeal ina civil matter may be allowed by a circuit
Sourt’ in ite discretion from an order denying @ moticn to dismice
of trom any interlocutory Judgment, order, or decree whenever the
Gircoit court may think the sane advisable for the speedy
fermination of iitigation before it. The refusal of the circuit
court to sllow an appeal fron an interlocutory Judgment, order, or
Gecree shall not be reviewable by any other court.
This text was unchanged by the 2004 amendnent to HRS § 642-1,
10
FOR PUBLICATION IN WEST'S HAWAH REPORTS AND PACIFIC REPORTER ***
Regarding interpretation of insurance policies, this
court has state
[Insurers have the sane rights az individuals to Limit their
Liability and to inpose whatever conditions they please on their
cbligaticn, provided they are not in contravention of statutory
inhibitions Sr public policy. "As such, insurence policies are
Subject to the general roles of contract constructions the cerns
Of the polley should be interpreted according to their plain,
ordinary, and accepted sense in connon speech unless it appears
from the policy that a different meaning is intended. Moreover,
every insurance contract shall be construed according to the
entirety of ite terms and conditions as set forth in the policy.
Nevertheless, adherence to the plain language and liters) meaning
Of insurance contract provisions se not without limitation. Me
have acknowledged that’ because insurance policies are contcact® of
adhesion and are premises on standard forms prepared by the
insurer's attorneys, we have long subscribed to the principle that
they aust be construed Liberally in fevor of the insured and any.
ambiguities must be resolved against the insurer. Put ancther
ey, the rule is that policies are to be construed in accord with
the’ reasonable expectations of a layperson.
Dairy Rd. Partners v, Island Ine. Co. Ltd., 92 Hawai'i 398, 421-
12, 992 P.2d 93, 106-07 (2000) (citations, quotation marks, and
brackets omitted).
C. Statutory Interpretation
Regarding statutory interpretation, this court has
stated:
First, the fundamental starting point for statutory interpretation
the language of the statute itself. Second, wnere the
statutory language is plain and unambiguous, our sole duty is to
Give effect to its plein and cbvious meaning. Third, implicit in
the task of statutory construction ie our forenost obligation to
ascertain ana give effect to the sntention of the legislature,
hich is to be obtained primarily from the language contained in
the statute itself, Fourth, when there is doubt, doubleness of
eaning, of indistinctiveness or uncertainty of an expression used
inva statute, an ambiguity existe. And fifth, dn construing en
snbiguous statute, the meaning of the anbiquose words may De
Sought by exanining the context, with which the ambiguous words,
phrases, ana sentences may be compared, in order to ascertain
Eneir true meaning.
Awakuni v. Avana, 115 Hawai'i 126, 133, 165 P.34 1027, 1034
(2007) (citation omitted).
n
For
IBLICATION IN WES
REPORTER
D. Choice of Law
This court has recently stated that “[t]he question of
the choice of law to be applied in a case is a question of law
reviewable de novol.] . . . Therefore, @ choice of law issue is a
question of law we review under the right/wrong standard.”
Mikelson v. United States Auto Ass‘n, 107 Hawai'i 192, 197, 111
P.3d 601, 606 (2005) (quoting and citing Jenkins v. Whittaker
Corp., 785 F.2d 720, 724 (9th Cir. 1986)) (quotation marks,
brackets, and other citations omitted).
IV. DIscussroN
A. Hawai‘ Law Applies To the Instant Ca
‘This court discussed its choice of law jurisprudence in
Mikelson, which was decided after the appellate briefs in the
instant appeal were filed. Therein this court observed the
following:
‘This court has moved away from the traditional and rigid conflict-
St-iove rules in favor of the modern trend towards a nore flexible
Gpproach locking te the state with the most significant
Eelotionship to the parties and subject matter. This flexible
approach places prinary emphasis on deciding which state would
Ave the strongest interest in seeing its laws applied to che
Particular case. Hence, this court has said that the interests of
Ete states and applicable public policy reasons should determine
whether jiawas'd Iaw of another state's law should apply. “The
Preferred analysis... would be an sgsesament of the interests
Gnd policy factors involved with s purpose of arriving at
desirable result in each situation.”
Mikelson, 107 Hawai'i at 198, 111 P.3d at 607 (citations,
brackets, and some quotation marks omitted) .
In light of this court’s discussion in Mikelson,
Fireman's Fund's reliance on Ball, Stephens Contractors, Inc. vs
Mid American Indem. Ins. Co., 605 F. Supp. 854 (D. Haw. 1992),
Airao, Inc. v. Horizon Cargo Transp., 66 Haw. $90, 670 P.2d 1277,
2
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **¢
1281 (1983), and California Fed, Sav. & Loan Asa’a vs Bell,
Haw, App. 597, 735 P.2d 499 (1987), for the proposition that
Nawas"t courts have consistently applied the factors set forth in
the Restatement (Second) of Conflict of Laws § 168 (2001)? when
confronted with a conflict between the law of Hawaii and that of
another state is not persuasive. First, Fireman's Fund's reading
of Bull, Stephens is inaccurate because the federal court clearly
observed that this court “lookled) to but reject {ed} the
[Restatement (Second)] approach” in Peters v, Peters, 63 Ha
653, 634 P.2d 586 (1961). Pi, Stephens, 805 F. Supp. at 856.
Second, Fireman's Fund’s reading of Bell is also inaccurate
inasmuch as the ICA in Bel) did not rely on any provision of the
Restatement (Second) of Conflict of Laws in making its choice of
law decision. See Mikelson, 107 Hawai'i at 201, 111 P.3d at 610
("hile the [ICA] made reference to the Restatement in [Bell],
the ICA decided the underlying choice of law issue utilizing
Professor Leflar’s ‘choice-influencing considerations’ approach
referred to in Betere.”); Bell, 6 Haw. App. at 606, 735 P.24 at
Restatement (Second) of Conflict of Laws § 188 provides, in
pertinent part:
[2) The rights and duties of the parties with respect to an 4
in contract are determined by the local Law of the state which,
to, that issue, has the nost significant relationship
ction and the parties. s+
(2) Ih the absence of an effective choice of law by the parties .
the ‘contacts to be taken into account’. . to determine the
jaw applicable to an issue includ
(a) the place of contracting,
(2) the place of negotiation of the contract,
(c} the place of performance,
(4) the Location of the subject matter of the contract, and
(e) the comicil, resigence, nationality, place of
incorporation ahd place of business of the parties.
‘These contacts are to be evaluated according to their relative
importance with respect to the particular 1
13
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505 (applying “Professor Leflar’s ‘choice-influencing
considerations’ ” approach) .
Finally, the parties in Airgo “expressly agreed in both
service agreements that any disputes were to be resolved under
Texas lew.” Ida at 595, 670 P.2d at 1281 (emphasis added). In
Airc, this court was guided by the Restatement (Second) of
Conflict of Laws § 187(1) (1971)" for the proposition that a
choice of law provision provided in a contract between the
parties will generally be upheld “[wJhen . . . the chosen law has
some nexus with the parties or the contract[.]" Aixao, 66 Haw.
at $95, 670 P.2d at 1261, However, because none of the insurance
policies in the instant case contain a choice of law provision,
‘Aixgo is distinguishable.”
In applying the approach articulated by this court in
Restatement (Second) of Conflict of Laws § 187(1) provide:
5.187, Law Of The State Chosen By The Partin
{athe lew of the state chosen by the parties to govern their
Soneractual rights and duties will be applied if the particular
{Stue is one which the parties could have resolved by an explicit
provisien in their agreenent directed to thet issue,
Porsuent to the Restatenent (Second), Firenan’s Fund argues thet
cauifornia low applies te the instant case because (1) all of the contracting
parties to the insurance policies were located in California, (2) the policies
Rete negetiated in california, (3) the insurance contract would be
"persorniea}" in California by Fireasn’s Fund in the event that policy,
benefits were provided, (4) Del Monte Fresh tendered clains to Fizenan’s Fund
Te"Eilifornie, and (2) California was the principal place of business for all
Sneracticg parties, This argument is without merit because the Restatenen=
(Second) itself provides that the rights created by on insurance contract "are
Sterined by the locel low of the state which the parties understood mas to
be the, ‘daring the term of the policy,
Ghess-uith respect te the particular issue, some other state has » more
Significant reletionship . ..- ." Restatenent (Second) of Conflict of Laws $
153" (Emphasie added) see BLM. Stephens Contractors, 605 F. Supp. at 856 (*the
place of contracting ia relatively insignificant wnen there is no other
Elgniticant relationship Between the transaction and that place."). No other
nificant reletionship between California and the instant case hes been
fered by Fireman's Fund.
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Mikelson, we hold that Hawai'i has a greater interest in applying
its own law to the instant case for the following reasons.
First, the environmental pollution that engendered the instant
case occurred on land located in Hawai'i. Second, the Hawaii
State Department of Health is overseeing the Kunia plantation
site remediation, having (1) entered into @ separate memorandum
agreement with the EPA, and (2) concurred in the EPA/Del Monte
Fresh consent order such that it will not pursue its own
available remedies against Del Monte Fresh so long as it
continues with its site renediation. Finally, the state of
Hewas'i has expressed an interest in favor of protecting its
environment for the public's welfare. HRS § 341-1 (1993)
provides, in pertinent part:
bi the State. the legislature further finds that the determination
of an optimum balance between economic development and
savironment the ost thoughtful consideration,
aud that the ssintenance of the optimum quality of the environsest
Segarves the saat intensive care.
(Emphases added.)
In light of the above interests, we hold that Hawai'i
law applies to the instant case.
B. The Circuit Court Erred When It Determined That Insurance
Coverage Was Assigned From Del Monte Corp. to Del Monte
Fresh By Operation Of Law.
‘The threshold issue is whether a valid assignment was
either expressly made or effected by operation of law that placed
Del Monte Fresh as an insured under the insurance policies in
effect prior to the 1989 sale. The circuit court ruled in
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pertinent part:
[THE COURTI: . . . There are basically two approaches that
courts ‘take when construing insurance policies. One is a strict
Construction approach and the other is'a more iiberal type of
Spproach where the court considers various factors, including the
effect of aw upon the contract.
‘This court har slweys been of the mind that when the reason
for the rile cesses, the Tule itself should also cease. And
applying that approach to the issues in this case, the court
Ubked heavily es to uhat the insurance carrier was trying to
aceosplish when it drafted the contrect and really, the provisions
Tequiting the claimant to be an insured and the non-assignment
Erovisions are really designed to Lisit the risk co the carrier
Gnd ery co avoid unanticipated risk to the carrier.
The have a situstion here where sone or all of the
claine that... Del Monte Fresh 18 seeking coverage] arose at
the time when bel Monte [Corp] wae the insured and it arose under
bel Monte’ [Corp.’e] wateh. And I'make particular reference to the
ost recent Keniel c
‘pplying the reason for the rule logic,
that case took on greater appeal to this court and so what this
Sourt concludes is thet shere a successor corporation sgeks
Soveraue and that coverase really does not increase the cick ic
ihe eration sutenes
There, Nowever, the successor corporation engages in, conduct
‘hat increases the risk, that 1s, exposes the carrier to risks
that were notin existence when the insured sas ~~ before che
Succescor corporation was creates, then you have the situation
here there is unanticipates risk and therefore, the definition of
Gn insured snd the honvessignment provisions then become very
Stitleal"to'liniting the exposure to the carrier.
And it it primarily for this reason that the court is going
to follow, in this case, the Henkel and urance cases
Father than the Quenssco and Genssa, Accident cases. For this
Feazon, the court is going to deny Fireman's Fund's motion for
Summary judgnent and grant Del Monte Fresh’s cross motion for
Suneaty judgaent with the express intention of entitling Del Monte
Frecn to # cefense for the 1995 E.P.A, agninistrative claim.
(Emphasis added.)
Northern Insurance concerned a dispute between two
insurers, Northern Insurance and Allied Mutual Insurance Company,
wherein Northern Insurance sought contribution from Allied Mutual
for defense costs incurred by Brown-Forman Corp, in a products
Liability tort action. 955 F.2d at 1355-56. The coverage action
was tied to the gestation of a child who was born with fetal
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alcohol syndrome in October 1983. Id, The child's parents
brought suit in November 1987, alleging that the mother’s
consumption of California Coolers during her pregnancy resulted
in the child's suffering from fetal alcohol syndrome. Id. at
1356. Brown-Forman purchased California Cooler in July 1985,
through an asset purchase agreement that, inter alia, “excluded
from the sale the assignment of any contract that required
consent to assign.” Id. at 1355-56. Brown-Forman made tenders
of defense to both Northern Insurance and Allied Mutual. Id. at
1356.
on appeal, the Ninth Circuit held that even though the
asset purchase agreement did not serve to assign Allied Mutual's
Liability policy to Brown-Forman Corp., the policy benefits were
transferred to Brown-Forman by operation of law. Id. at 1357.
specifically, 1t held that as to “presale occurrences,” Allied
Mutual's policy benefits, “including the right to a defense,
transferred by operation of law to Brown-Forman when [it]
purchased substantially all of California Cooler's assets." Id.
at 1358, It observed that California follows the tort rule of
“product-line successor liability(,]" under which “a purchaser of
substantially all assets of a firm assumes, with some
Limitations, the obligation of product liability clains arising
from the selling firm's presale activities. Liability is
transferred irrespective of any clauses to the contrary in the
asset purchase agreement.” Id. at 1357 (citing, inter alia, Ray
vs Alad Corp., 19 Cal.3d 22, 34, 960 P.2d 3, 11, 136 Cal. Rptr.
574, 582 (1977) (holding that “a party which acquires a
v
S HAWAII REPORTS AND PACIFIC REPORTER,
manufacturing business and continues the output of its line of
products under the circunstances here presented assumes strict
tort liability for defects in unite of the same product line
previously manufactured and distributed by the entity from which
the business was acquired”). Because tort liability transfers
from the predecessor company to the successor, the Ninth Circuit
ultimately concluded that the right to a defense transfers as
well, See id, at 1358 ("We agree with the (Eighth Circuit in
Ocean Accident 4 Guar, Co. v, Sw, Bell Tel, Co., 100 F.2d 441
(8th Cir, 1939), cert. denied, 306 U.S. 658, 59S. Ct. 775, 83 Li
Ed. 1056 (1939),] that the rationale for honoring ‘no assignment’
clauses vanishes when liability arises from presale activity.").
Ineurers take account of the nature of the insured when issuing a
Policy. Risk characteristics of the insured determine whether the
Insurer will provi ie, and at what rate, An assignment
could alter drasticsily the in
ature of the nev insured, "Ne protect
against any such unforeseen increase in risk. When the oss
‘occurs before the transfer, however, tI acteristics of the
Successor are of little importance: regardless of any transfer
the insurer still covers only the risk it eveluated when it wrote
the polsey.
Id. (citation omitted).
However, a California appellate court disagreed with
the Ninth Circuit's analysis and application of California law.
In General Accident Insurance Co, of America v. Superior Court,
55 Cal. App. 4th 1444, 1445-46, 64 Cal. Rptr. 2d 781, 782-83
(2997), Western MacArthur Company, an asbestos distribution
company that had taken over Western Asbestos Company, sought a
declaratory judgment that certain insurers owed it duties of
defense and indemnification. Western MacArthur operated in
essentially the same manner as Western Asbestos post-takeover,
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retaining alnost all of the sane employees, distributing the sane
products, and owning Western Asbestos’ customer Lists and
corporate goodwill. Id. at 1446-47, 64 Cal. Rptr. 2d at 783-84.
In the underlying case giving rise to General Accident,
Western MacArthur was found Liable under the successor Liability
rule for Western Asbestos’ product liabilities, which led to the
filing of thousands of asbestos lawsuits against Western
MacArthur due to its predecessor's products. Jd. at 1447-48, 64
cal. Aptr 2d at 783. Western MacArthur's own coverage limits
under ite Mability insurance policy was eventually exhausted.
Id. at 1448, 64 Cal. Rptr. 2d at 783. At that point, Western
MacArthur attempted to call upon insurance policies issued to
Western Asbestos. Id, Because Western MacArthur was not a named
insured under any of these policies, the insurers denied
coverage. Id. at 1448, 64 Cal. Rptr. 2d at 763-84.
‘The insurers moved for sunmary judgment, arguing that
they end Western MacArthur shared no “insured~insurer contractual
relationship[,]” and also that “Western Asbestos’ insurance
coverage did not transfer to Western MacArthur by operation of
law by virtue of the finding of successor liability [in the
underlying case]. Id. at 1449, 64 Cal. Rptr. 2d at 784. In
response, Western MacArthur contended, inter alia, thet “the
insurance policies were transferred by operation of law{,]" and
alternatively, “there was an express assignment of the Western
Asbestos policies” pursuant to a security agreement between the
two companies. Id, The trial court denied summary judgment,
relying on Northern Insurance “for the proposition that ‘(t]he
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benefits of a predecessor's insurance policy may transfer
matter of law to a successor corporation if liability for a
predecessor's activity transferred as a matter of law under a
product liability successor theory."" Id.
On appeal, the appellate court disagreed with and
declined to follow Northern Insurance. Id, “(T]he finding of
successor liability in tort does not entitle the successor
corporation, by operation of law, to the insurance coverage of
its corporate predecessor.” Id, at 1454, 64 Cal. Rptr. 2d at
788. After discussing both Northern Insurance and Ocean
Accident, the court opined that the principles of Ocean Accident
“[did) not provide authority for the Northern Insurance
Proposition that insurance coverage transfers by operation of law
by the finding of successor liability for product liability
torts[,]” inasmuch as Northern Insurance improperly intermingled
Ocean Accident’s contract principles with the tort of successor
Liability, Id, at 1450-51, 64 Cal. Rptr. 24 at 785 (concluding
that unlike Northern Insurance, Qcean Accident involved an
express assignment of an insurance policy by the predec
corporation to its successor, and the underlying issue was
whether the policy’s “no assignment” clause, which required the
consent of the insurer, was applicable to a loss that preceded
the assignment) .
do Anaured-insurer relationship is a matter of contract.
Successor liability is a aatter of tort duty and lisbility. It is
ene thing to deen the successor corporation 2iable for the
predecessor's torts; it is quite another to deen the successor
Corporation a party to insurance contracts it never signed, aid
for'which it never paid a premium, and to deen the insurer’ to be
in a contractual relationship with 9 stranger.
Ad. at 1451, 64 Cal. Rptr. 2d at 785; see Red Arrow Prod.’s Cou,
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Inc. v. Employers Ins, Co, of Wausau, 607 N.W.2d 294, 301 (Wis
Ct. App. 2000) ("The successor liability rule was intended to
protect an individual who, not being in a contractual
relationship with a manufacturer, cannot otherwise protect
himself or herself from an injury arising from a product
manufactured by a company that no longer exists."). The court
thus concluded that “a transfer by operation of law is a
violation of the basic principles of contract and is also bad
public policy.” Id. at 1454, 64 Cal. Rptr 2d at 788.
It is well settled in Hawai'i that “[t]he objectively
reasonable expectations of (policyholders) and intended
beneficiaries regarding the terms of insurance contracts will be
honored even though painstaking study of the policy provisions
would have negated those expectations.” Hawaiian Ins. § Guar
Co. v. Brooks, 67 Haw. 285, 290-91, 686 P.2d 23, 27 (1984)
(alterations in original) (citations and quotation marks
omitted), overruled on other grounds, Dairy Rd, Partners, 92
Hawa
4 398, 992 P.2d 93, These “reasonable expectations” are
derived from the insurance policy itself, which is “subject to
the general rules of contract construction{.]" Dairy Rd.
Bartners, 92 Hawai'i at 411, 992 2.24 at 106. This involves
construing the policy “according to the entirety of its terms and
conditions[,]” and “the terms [themselves]. . . should be
interpreted according to their plain, ordinary, and accepted
sense in common speech unless it appears from the policy that a
different meaning wae intended.” Id, (brackets omitted).
“(Blecause insurance policies are contracts of adhesion and are
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*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *#*
premised on standard forms prepared by the insurer's attorneys,
we have long subscribed to the principle that they must be
construed liberally in favor of the insured and any ambiguities
must be resolved against the insurer.” Id. at 411-12, 992 P.2d
at 106-07 (citation, quotation marks, and some brackets omitted).
The foregoing common law framework s consistent with
the plain language of HRS § 431:10-237 (2005), which mandates
that “[elvery insurance contract shall be construed according to
the entirety of its terms and conditions as set forth in the
policy, and as amplified, extended, restricted, or modified by
any rider, endorsement or application attached to and made a part
of the policy.” Furthermore, pursuant to language unchanged from
its enactment in 1987, HRS § 431:10-226(a)" clearly provides
that “[a] policy may be assignable or not assignable, as provided
by ite terms.” (Emphasis added.) Because Hawai'i Law requires
every insurance policy to be subject to the general rules of
contract construction, seg HRS § 431:10-237, and an assignment by
operation of law is merely an extension of the common law tort
Wns § 431:10-228 provides, in its entirety:
(a) & policy may be assignable or not assignable, a8 provided by
(b) Subject to the ters of the policy, any policy providing the
beneficiary say be changed upon the sole request ef the insures,
Say be assigned by either pledge of transfer of title, executed by
Ene insured alone, snd delivered £0 the insurer, regardless of
whether the insured is the pledgee of assignee,’ Any such
assignment shall entitle the ingurer to deal with the assignee as
the owner or pledges of the policy in accordance with the terns of
the ausignnent until the insurer hae received at its nome office
written notice of termination of the assignnent or plesge, oF
written notice by of on behalf of sone other person claiming some
Interest in the policy in conflict with the assignment.
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rule of successor liability, see Northern Inaurance, 955 F.2d at
1958, we hold the circuit court erred when it concluded that an
assignment by operation of law is consistent with Hawaii's rules
governing construction of insurance policies.
C. The Assignment By Contract Was Invalid Because Del Monte
Corp. Failed To Obtain Its Insurers’ Consent Pursuant To the
Terms Of the Insurance Polic:
‘The pertinent language contained in the Bill of Sale
that transferred Del Monte Corp.'s assets to Del Monte Fresh is
as follows:
2. {Del Monte Corp.) hereby conveys, assigns, transfers and
Soiivere to [pPi-Oei Monte], sll of ite right, title and interest
© the concurrence points cut that “several courts have given great
Weight to timing, ‘.e., whether CERCLA was in effect when the policies were
"Ssted Such tnet the insurer could have considered potentis! risks under
CERCLA.” Concurring opinion st 11-12. Although this is true, it has also
been held that the sore germane consideration is whether an insurable loss
existes, notwithstanding the point an times particslar environmental eeatute
was enacted. See Minnesota Mining & Mia, co. x, Travelers Indam, Cou, 457
Niw.24'275, 163" (Minn. 1950) ("The issue of coverage Goes fot depend mere)
the form of action taken against the snsured. - . +. [T]he parties in thes
es were auare of the potential Liability for groundwater contamination at
the tine they entered [into] the insurance policies at issue... «The
Advent of [the Minnesota Environmental Response Liability Act’ (°MERLA")] and
Other environsental statutes have merely changed the form of the Liability for
Groundwater pollution, not che nature of that Isabiitey.°)) Gopher Gil Coys.
Au Heraware Mut, Ing, Co,, 588 N.W.2d 756, 764 (Minn. Ct. ADp. 1993) (IAT
Toss occurs at the tine of contamination, even if the clain is brought under
subsequently enacted legislation. Minnesota Mining ¢ Mfg., 457 N.We2d at 163
(recognizing longstanding prohibition of contamination of groundwater
predating CERCLA and MERLA]-").. To consider tining sesunes that 1iabi1ity
Coola not be isposed Under similar circumstances prior to the enacteent of
CERCA.
Additionally, in the instant case, both Anerican Home end Motor
Vehicle provides 1iability insurance coverage to Del Monte Corp. after CERCLA
was enacted. Specifically, prinary Liability insurance was provided by
Bnerican Hone from March 1, 1982, until May 1, 1966. Excess liability
Snsurance coverage was also provided by Anerican Hone between March 1, 1962,
and December Sl, 1965. Excess liability insurance was provided by Motor
Venkele between Septenber 29,1979, and September 29, 1982. Therefore, the
‘concurrence’ s timing consigeration is inapplicable 22 to then.
Nonetheless, we need not express an opinion as to what constitutes
fan insurable loss io Light of HRS $8 ¢31:10°237 ond 431:10-228 (a) 8s applies
fo the facts and circunstances presented in this case.
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in and to all the Assets, subject to the releted Liabilities, as
the Same shell exist on the Gate herest. ‘The Assets shall include
S1l of the properties ond assets (reel and personal, cangible and
Intangible) of [0el Monte Corp.) constituting a part of, used ny
arising out of or pertaining or relating in any manner whatsoever
£6 the business of the Del Monte Tropical Fruit Division 1oct
in Hawai! (the “Hawaiian Business”) of every nature, king
jeter, description, absolute, contingent and otherwis
ver located or situated, including, without lin
(a) any and ali other assets of the favatzen Bussnees, Anciding
without Limitation, amy. insurance policies of the
Hawaiian Gusiness, “anv causes of action, iudomente, claims, end
demands of whatever qature of the finwitan pusiness(.1
(Emphasis added.)
‘The pertinent language contained in the Assumption
Agreement that transferred Del Monte Corp.’s liabilities to Del
Monte Fresh is as follows:
2, [Del Monte Fresh) hereby undertakes, assumes and agrees to
ferform, pay or discharge when due, to the extent not heretofore
Performed, paid or discharged, and subject to che limitations
Eontained ip Paragraph 2 hereof: . ... (vi) all liabilities end
Sbligations arising sut of and relating to the operations of the
Hawaiian Business, including, without Linstation, any and sl
Eater of the use hepeachioriel
(Emphasis added.)
Del Monte Fresh points out that it is not arguing that
the insurance policies were assigned to it as a result of the
above agreenents. Del Monte Fresh instead asserts that Del Monte
Corp.'s transfer of all assets and liabilities to it effectively
assigned to Del Monte Fresh the right to claim and recover under
Del Monte Corp.'s insurance policies in effect prior to the 1989
sale, notwithstanding the no assignnent provisions in the
policies.
It has been said that “insurance is a means of
transferring the risk of loss from the insured to the insurence
company. The insurance company is in the business of evaluating
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risks, assuming risks in return for periodic premiums, and
spreading the costs of the risks.” Elliot vy, Donahue, 485 N.W.2d
403, 407 (Wis. 1992) (footnote omitted). “In return for the
premiums paid by the insured, the insurance company assumes the
contractual duties of indemnification and defense for claims
described in the policy." Id. (emphasis added).
In this regard, this court has stated that “insurance
policies are subject to the general rules of contract
construction[.) . . . [B]very insurance contract shall be
construed according to the entirety of its terms and conditions
as set forth in the policy.” Dairy Rd, Partners, 92 Hawai'i at
411, 992 P.2d at 106 (brackets, quotation marks, and citations
omitted). Accordingly, the duties to defend and indemnify arise
under the terms of the insurance policy, and it is through an
interpretation of the terms of the policy that such duties are
deemed to be owed. See Havaiian Ins. & Guar. Co., 67 Haw. at
290-91, 686 P.2d at 27 ("[T]he objectively reasonable
expectations of [policyholders] and intended beneficiaries
recarding the terms of insurance contracts will be honored even
though painstaking study of the policy provisions would have
negated those expectations.” (Alterations in original, emphasis
added, and citations and quotation marks omitted)). Therefore,
under Hawai'i law, it cannot be said, as Del Monte Fresh asserts,
that the duties to defend and indemnify are separable from the
terms of the insurance policy itself, and are assignable as such
25.
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notwithstanding the existence of a no assignment provision.”
HRS § 431:10-228(a) provides that “{a] policy may be
assignable or not assignable, as provided by its terms.”
Furthermore, this court has observed that “liability insurers
have the sane rights as individuals to limit their liability, and
to impose whatever conditions they please on their oblication,
provided they are not in contravention of statutory inhibitions
or public policy.” iret Ins, Co, of Hawaii, Inc. v. State of
Hawaii, 66 Haw. 413, 423, 665 P.2d 648, 655 (1983) (emphasis
added) (citations and quotation marks omitted). The relevant
insurance policies in the instant case contain a no assignment
clause that requires the consent of the insurer to bind it to any
assignment made by the named insured. It is undisputed that Del
Monte Corp. is the only named insured covered by the policies.
Tt As also undisputed that Del Monte Corp. did not obtain any of
the insurers’ consent prior to the 1989 assignment. Because the
policies were assigned by Del Monte Corp. without the insurers’
consent, we hold that Del Monte Fresh is not an insured under any
of the Defendant-Appellant insurers’ policies, and is therefore
not owed duties to defend or indemnify by Defendant-Appellant
insurers."*
© pel Monte Fresh cites to numerous cases from other jurisdictions
An support of its assertion that “courts have repeatedly enforced assignments
of ineurence clains te successor corporations,” inasmuch as a Liability that
Secure prior to an assignment does not involve any increase in risk to che
Snsurer:. However, this argunent is Unpersuasive because it eppears to be
noely an extension of the rationale ciscussed and rejected, supra, in
Connection with the assignsent-by-operation-of-law issue
Mim Light of the foregoing disposition, resolution of the remaining
points of error rsised by Firenan's fund and other defendant-appellant
‘continued.
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IV. CONCLUSION
Based upon the foregoing, the circuit court's
August 29, 2001 orders are vacated, and the case is remanded with
instructions to enter summary judgment in favor of Defendant~
Appellant insurers and against Del Monte Fresh consistent with
this opinion.
on the briefs:
Keith K. Hiraoka, April Gi
Luria and Jodie D. Roeca
of Roeca Louie & Hiraoka Bee A Linco
for defendant-appeliant
National Continental Insurance ¥
Company Peete OT iene Te
Peter W. Olson and Stacey Kawasaki
Djou cf Cades Schutte Fleming & Wright
and Ray Tamaddon, (Pro hac vice), of
Berman & Aiwasian for defendant-
appellant Motor Vehicle Casualty
Company on the brief and joinder
W. Thomas Fagan and Kelvin H.
Kaneshiro of Reinwald O'Connor &
Playdon LLP and Patrick A. Cathcart
(pro hac vice), Yvette D. Roland (Pro
hac vice), Gina P. Mak (Pro hac vice),
Michael R. Fischer (Pro hac vice),
Banchnalak T. Abegaze (Pro hac vice)
of Hancock Rothert & Bunshoft LLP for
defendant s-appellants Certain
Underwriters at Lloyd's London, and
Certain London Market Insurance
Companies
Paul T. Yamamura and Wesley D. Shimazu
M(, scontinved)
Angurers ‘is unnecessary.
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of Kanae and Yanamura and Jeffrey C.
Segal, (Pro hac vice), and Richard D.
Bremer, (Pro hac vice), of Selman
Breitman LLP for defendant-appellant
Commercial Union Insurance Company
Faye M. Koyanagi and Adrian Y. Chang
of the Law Office of Faye M. Koyanagi
and Donald T. McMillan, (Pro hac vice),
and George J. Keller,’ (Pro hac vice), of
Rivkin Radler LLP for defendant-
appellant Fireman's Fund Insurance
Company
Kevin S. W, Chee, Keith K. Kato and
Jeffrey 'S.'Masatsugu of Chee & Markham
and Maria G. Enriquez, (Pro hac vice),
for defendant-appellant American
Re-Insurance Company on the joinder
Michael A. Lorusso and Brian A.
Kang of Watanabe, Ing & Kewashima
and J. Karren Baker, (Pro hac vice),
of Sinnott, Dito, Moura & Puebla
for defendants-appellants American
Home Assurance Company and Lexington
Insurance Company on the joinder
John R. Myrdal, Scott I. Batterman
and Tred R. Eyerly of Stanton Clay
Chapman Crumpton & Iwamura and
Michael J. Lynch, (Pro hac vice), of
Kirkpatrick & Lockhart LLP for
plaintiff-appellee Del Monte Fresh
Produce (Hawaii) Inc.
28
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5a9aed0e-b52e-4589-9bf5-9ff25ad04305 | Delos Santos v. Hayashi | hawaii | Hawaii Supreme Court |
a 8
No. 28886 g
ER
IN THE SUPREME COURT OF THE STATE OF HAWAISE|S Sy
i fi
RAY DELOS SANTOS, Petitioner, ® oO
THE HONORABLE LESLIE A. HAYASHI, JUDGE OF THE DISTRICT
COURT OF TAE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent.
ORIGINAL PROCEEDING
(HED No. 07-486087)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioner Ray Delos Santos and the papers in
support, it appears that petitioner's initial appearance before
the district court on December 10, 2007 was the appropriate
proceeding in which to seek redress from the district court’s
finding of probable cause. Petitioner did not seek redress from
the district court at the December 10, 2007 proceeding and he is
not entitled to mandamus relief. See Kama vs 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 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, December 12, 2007,
Ati hcnse—
Pease CMa are
Pee
Gan € Ot dr.
|
4ef46476-7cc4-441f-9a16-114f394ebbde | Chay v. State, Department of Education | hawaii | Hawaii Supreme Court | Uwuprany
+1** NOT FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTER
No. 26496
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
JOSEPHINE $. CHAY, Claimant~Appellant,
aad
vs.
yaya L VHUGN
STATE OF HAWAI'I, DEPARTMENT OF EDUCATION,
Enployer-Appellee, Self-Insured.
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2002-436 (2-98-40651))
(ey: Moon, €.3., ‘Levinson Nakayama, ‘Reobe, and Duffy, 33.)
Clainant-Appellant Josephine S. Chay ("Chay") appeals
from the Labor and Industrial Relations Appeals Bosra’ s!
(*appeais Board”) March 10, 2004 Decision and Order, which
concluded that she is entitled to benefits from Exployer~Appeliee
State of Hawai't, Department of Education (“Enployer") for twenty
percent permanent partial disability of the whole person, as a
result of the June 4, 1998 work injury, and # not permanently
totally disabled’ either medically, under Hawai'i Revised
statutes (“HRS”) § 386-31," of under the odd-lot doctrine.
Board Chairman Randall Y. Iuese and Board menber Carol K, Yamamoto
presided.
2 ans § (1993) defines total disability as “disability of such
fan extent that the disabled employee hes no reasonable prospect of finding
regsler enployzent of any Kind in the normal labor market.”
2 Rs § 386-31 (2993) provices, in pertinent part:
dn the case of the following injuries, the disability caused
thereby shell be deened permanent and total:
{a)"" the permenent and total loss ef eight in both eyes
(2) te ese of both feet at or before the ankle:
(3) he Jess of both hands at or above the wrist;
(4) the lees of one hand and one foot?
(5) An snsury to the spine resulting in permanent
ind complete parelyeis of both legs or beth arms
Gr one eg end one arm
‘+ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
On appeal, Chay argues that the Appeals Board erred
inasmuch as it: (1) found that her psychiatric impairment does
not render her medically permanently and totally disabled under
HRS § 386-31; (2) found that she is not permanently and totally
oi
findings regarding her psychiatric impairment, (b) not crediting
bled under the odd-1ot doctrine, based on (a) insufficient
a vocational expert's opinion that she is unemployable based on
her. age, presentation, and psychiatric impairment, and (c) the
finding that she retired because she lacked motivation, although
and (3)
her treating psychiatrist did not release her to wor!
(.-eontinved)
jes_the permanency and totality of the
‘be cetermined on the facts.
+ the odd-Lot doctrine may be invoked:
where an employee receives a work-related permanent partial
Gisability which combined withother factors such a= 296,
Saucation, experience, etc-, renders him, in fact, unable to
obtain employment, he’ is entitied to be treated as being
permanently totally disabled, It seems to be accepted chat the
employee has the burden of establishing prima facie that he falls
Within the odé-lot category.
fan vs Ks » 2 Haw. App. 659, 660-61, 638
Piza i381, 1982 (1982) (citation omitted)
* _ Technically, Chay failed to comply with Hawai'i Rules of Appellate
Procedure ("HEAP") Rule’ 26(b} (4) (C)y inasmoch az her points of error de not
quote the disputed finginge of fact. Employer contends that pursuant to HRAP
ule 26(b) (4) (C), this court must disregard Chay’s assertions that the Appesl®
Board erred in its findings. "See Morgan v. Elanning Dep't, County of Kauai,
206 Hawai's 173, 180, 86 P.3d 982, 989 (2004) ("Indeed, it is well settled
that failure to comply with HRAP Role 26(b) (4) is alone sufficient to sffirm
the circuit court's Judgment") (Relying on,
AOL Erods., #6 Hawai'i 214, 235, S¢8 F.2d 2058, 1076 (2597)-)~
Nevertheless, the disputed findings of fact are encompassed within
the points of error and argunent section of her opening brief. Therefore, Me
address the merits of Chay’s argunente, notwithstanding the technical
violation of HRAP Rule 26(B) (4) (C). See Schette vs Reliable Collection
, $6 Hawai'i 408, 420, 32 Pid 52, €€ (7001) {aGdressing the
merits of the issues on appeal despite WRAP Rule 28(b) (4) (c) violations, to
Support ** the policy of etfording’1itigente the opportunity te have their
heard on the merits, where possibie’™) (eltetions onitted) =
2
_— 222. NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER °° _
found that she is only twenty percent permanently and partially
impaired although it is not supported by the 2nd Edition of the
AMA Guides and her psychiatric condition.
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) Chay is not medically permanently and totally
disabled, inasmuch as the substantial evidence in the whole
record, specifically, her testimony about her self-sufficiency
and the opinions of Dr. Slomoff and Dr. Tsushima, reflects that
she is not precluded from workin
(2) Based on substantial evidence in the whole record,
Chay is not permanently and totally disabled under the odd-lot
doctrine, and the Appeals Board properly (a) made sufficient
findings regarding the psychometric evidence of the extent of
Chay's psychiatric impairment,” (b) found that Chay's psychiatric
impairment did not render her unemployable based on substantial
evidence in the record, (c) did not credit Mizono’s opinion that
Chay was unemployable, inasmuch as it observed him testify and
found his opinion inconsistent with Dr. Slomoff’s; and (é) found
‘Soe Tansehire vs Control Snecialist, Incs, 97 Hawai'i 86, 92, 34
P.36 16, 22 [2001] ruling that when reviewing the Appeals Board's findings,
Nine creaibility of witnesses and the weight to be given their testimony
within the province Of the trier of fact and, generelly, will not be disturbed
on appeal”)
1 60 Haw. 166,
Texplsining that an
fe basic facts, from
‘dete in terme of the statutory criterion are inferred .
1s cefinitely upen what besic facts the Conniseion reached
snd came to its decision")
(citations onittes)
+" NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
that she retired because she lacked motivation,* based on her
statements that she is “not interested in unskilled or semi-
skilled jobs”; and
(3) Chay is no more than twenty percent permanently and
partially disabled as a result of the June 4, 1998 work injury,
inasmuch as this level of psychiatric impairment is substantially
supported by the whole record. Therefore,
IT IS HEREBY ORDERED that the Appeals Board’s March 10,
2004 Decision and Order is affirmed in all respects.
DATED: Honolulu, Hawai'i, November 30, 2007.
on the briefs
Lowell K.¥. Chun-Hoon of Grr
King, Nakemure.¢ Chun-Hoon
fore
imant-appellant ’
Josephine S. Chay Bln
Janes E. Halvorson and re
Kathryn-Jean T.K. Taniguchi, » a a
Deputy Attorneys General,
for enployer-appellee,
State of Hawai'i,
Department of Education
+ see Atenley v. + 80 Hawes"s 239, 245, 909 F.36 S67,
873 (2996) (affirming the Bppeais Boare’s determination thet claimant, =
“highly educated, professicnal man with marueteble skills” was not. permanently
totally Gissbles' onder the cad-iet doctrine, in part because he wae not
working due to his “lack [of] interest”)
4
|
f16bf163-441d-4e7b-9c1e-1fe4325e1397 | State v. Owens. ICA Opinion, filed 02/05/2007 [pdf], 113 Haw. 472. S.Ct. Order Accepting Application for Writ of Certiorari, filed 08/10/2007 [pdf], 115 Haw. 200. | hawaii | Hawaii Supreme Court | ‘s++7OR PUBLICATION IN WES?’S HAMAI'T REPORTS AND PACIFIC REPORTER*##
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00.
STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
CHARLIE OWENS, JR., Petitioner/Defendant-Appellant
No. 27714
CERTIORARI TO THE INTERMEDIATE COURT OF APPEA|
(fC-cR. NO. O1-1-1261),
di
136 HY 61 AON Lone
NOVEMBER 19, 2007 /
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
Petitioner/Defendant-Appellant Charlie Owens, Jr.
(Petitioner) filed an application for writ of certiorari on
guly 12, 2007, requesting that this court review the April 13,
2007 judgment of the Intermediate Court of Appeals (the ICA),
issued pursuant to its February $, 2007 opinion! that affirmed
the Decenber 20, 2008 Revocation of Probation; Order of
Resentencing of the Family Court of the First Circuit? (the
court), and its January 10, 2006 Findings of Fact, Conclusions of
+ the published opinion was authored by Chief Judge James 3. Burns
and joined by Aesociate Judges Corinne K.A. Watanabe and Craig H. Nakamura,
+ the Honorable Russell S. Nagata presided.
gaz
'*FOR FUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTERS+®
Law, and Order Denying Defendant's Motion to Dismiss for
Violation of Hawai'i Rules of Penal Procedure (HRPP) Rule 9,
except that Conclusions of Law Nos. 1, 2, 4, and 5 were vacated
because they were wrong, State v. Ovens, 113 Hawai'i 472, 477,
155 P.3d 655, 660 (App. 2007). Petitioner's application wi
accepted on August 10, 2007, and oral argument was heard on
Cctober 31, 2007.
Petitioner presents the following question in his
application:
Whether, despite its recognition that under State v. Maaco,
78 Hawai'i 33, 689 P.20 1082 (App. 1995)(,) and State
Ugh, 95 Hevad's 278, 21 P34 860 (2001), Rule 9(e) SIT) of
the’ (HREP) clearly requires [Respondent /Plaintitt-Appeli
State of Hawaii (Respondent)) to serve a bench warrant of
probationer “without unnecessary delay,” the ICA gravely,
erred in affirming the order revoking (Petitioner's)
Probation based on the erroneous conclusions Ehst the
and in the absence of any factual record to support the
Conclusion that [Petitioner] had violated s substantial
Condition of probation.
(Emphasis added.)?
We hold, respectfully, that the ICA’s April 13, 2007
judgment issued pursuant to its February 5, 2007 opinion is
reversed, because (1) HRPP Rule 9 require
Respondent to serve
warrants in both pre-conviction and post-conviction contexts
without unnecessary delay, (2) Respondent's delay of n
rly five
years in serving Petitioner with a bench warrant for his arrest
amounted to an unnecessary delay under HRPP Rule 9 where
+ Respondent did not file 2 menorendum in opposition.
2
‘s+P0R PUBLICATION IN MEST’S KAWAI'T REPORTS AND PACIFIC REPORTERS*®
Petitioner was available for service in the jurisdiction of this
state over the period of non-service, there w
no evidence that
Petitioner intentionally avoided service, and there was no
evidence that attempts had been made by Respondent to
Petitioner over the nearly five-year period, and (3) Respondent's
duty to comply with HRPP Rule 9 in the service of the bench
warrant is not excused by Petitioner's failure to obey a court
order that resulted in the issuance of the bench warrant.
1
on February 20, 2001, Petitioner was charged by
complaint with Abuse of Family and Household Members, Hawai'i
Revised Statutes (HRS) § 709-906 (Supp. 2001). He pled guilty on
the same day and was sentenced to one year probation, inter alia,
and ordered to appear on February 21, 2001, for an intake
interview at the Adult Services Branch (ASB).
Petitioner failed to report to the ASB on February 21,
2001, for the intake interview. The ASB then mailed him a
Noncompliance Report, which said Petitioner was “hereby requested
to be present at 10:30 a.m. on Tuesday, the 13% day of March
2001” at the ASB. The ASB letter was returned, stamped “RETURN
TO SENDER,” and the phrase “no longer at this address” was
written on the envelope.
Respondent then filed a “Motion for Revocation of
Probation, Resentencing and Issuance of Bench Warrant” (MRP) on
March 27, 2002, when Petitioner did not appear at the ASB and did
"FOR PUBLICATION IN WEST’ § HAKAI'T REPORTS AND PACIFIC REPORTERS
SSS
not notify his probation officer of any address change. on the
same day, the court issued a bench warrant for Petitioner's
arrest. The bench warrant was stamped “URGENT SERVICE NEEDED
DOMESTIC VIOLENCE.” Despite this statement, no attempts were
nade to serve the bench warrant on Petitioner from March 27,
2001, to Novenber 28, 2005, The warrant was served on Petitioner
on November 28, 2005, on Maui, four years and eight months later.
On Decenber 15, 2005, Petitioner filed a motion to
dismiss for violation of HREP Rule 9.
According to Petitioner the following procedural
matters took place:
[tlwo separate matters concerning (Petitioner were] set for
hearing in the [flanily (clourt on becenber 20, 2006. The
Spcrant. “filed tareh 21. ani, “Theritioner's] moties fe
5 was heard first ‘because, if granted, it would have
Gismissed [Respondent's motion. « «
During the bearina on [Petitioner's Motion te
Entep andthe Sout aia Soe Pages ce pene teatincny
anvining,
(Emphases added.) Petitioner states that the court's decision
was rendered as follows:
in its decision th “1 ave ate
son revocsti
= the dates later reduced to written
findings were i) February 20, 2001, when [Petitione®] was
‘sentenced to one-year probation, 2) March 27, 2001, when
Respondent] filed a Motion fer Revocation of Frobstion,
Resentencing, and Issuance of Bench Warrant. end
3) Novenber 26, 2005, when [Petitioner] was finally served
‘
JFOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REFORTER*+#
ees
with the warrant, In ita written [conclusions of Lay
sir eat ‘Ehee 1) Hae u
‘2bivietion context, 2) BAPE Rule 9's placement within the
REP indicates it only applies pre-conviction,
3) ner mt =: 7
4} THRs] § 106-€27's tolling of probation provision
Logleally dictates that HAPP Rule 9 does not apply to
prabation proceedings (,] and 5) {Maceol and {ueil. = .
hotapplyt-1
(Emphases added.)
on December 20, 2005, the court denied Petitioner's
Motion to Dismiss for violation of HRPP Rule 9. HRPP Rule 9
states in relevant part that “[t)he warrant shall be executed
without unnecessary delay by the arrest of the defendant.”
Petitioner relates that “[s]ubsequent to the first
matter, [Petitioner] did not contest [Respondent's MRP] .”
Petitioner declares he “waived his right to @ hearing on the
{MRP} because” as he stated at the MRP hearing, “To tell you the
truth, I don’t recall, It was so long ago I don’t remember what
was going on. It was -- I think it was eight years, five years.”
Petitioner stipulated to the MRP “provided that [he vas}
reserving [his] right to appeal [his] motion to dismiss for
violation of (HRPP] Rule 9.” Thus Petitioner waived his right to
+ WREP Role 9(c)(3) (4) in dts entirety states as follows:
aa eat of th nt
fave The warrant in the officer's possession at the tine of
arrest, but upon request, the officer shall show the warrant
fo the defendant as s00n as possible. If the officer does
het have the warrant in the officer’ a possession at the tine
Of the arrest, the officer shall then inform the defendant
Gf the offense charged and of the fact that a warrant has
Been issued, The officer executing the warrant shell Bring
the arrested person promptly before the court.
(emphasis added.)
'FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTERS
SS
a MRP hearing. At sentencing Petitioner “informed the court
+ + that he had never absconded from the jurisdiction . . .
‘[a]nd I have been here and I have been working and I never left
the state.
qr.
In Petitioner's application for writ of certiorari he
argues the ICA’s affirmance of the court's judgment should be
overturned because (1) “HRPP Rule 9 requires [Respondent] to
serve a bench warrant on [Petitioner] with due diligence,” and
(2) “as HRPP Rule 9 applies, the [court’s] 1/10/06 Order must be
reversed and [Petitioner's] motion to dismiss [Respondent’s) MRE
must be granted” inasmuch as (a) “[u]nder the standard
articulated in Lei, [Respondent's] failure to attempt to serve
the warrant on [Petitioner] constitutes ‘unnecessary delay’ as it
clearly infringes on his basic constitutional due process
rights,” (b) “[t]he ICA gravely erred in affirming the 12/20/05
Revocation of Probation because the ICA’s determination that HREP
Rule 9 applied to [Petitioner’s] case and that there was no
evidence that [Respondent] exercised due diligence in attempting
to serve the warrant on [Petitioner] required that the MRP be
denied” and (c) “{t]he ICA gravely erred in making erroneous
conclusions that [Petitioner] violated his probation based on
unproven facts outside of the evidentiary record.”*
+ yy Tn Petitioner's opening brief, filed June 1, 2006,
alleges (1) “(e)he court erred by failing’ to grant [Petitioner
(continued...)
sesoR PUBLICATION IN WEST'S HOMAL'T REPORTS AND PACIFIC REPORTER*#*
SSS
In its answering brief filed July 19, 2006, Respondent
averred that (1) “[Respondent] agrees with [Petitioner], albeit
for different reasons, that HREP Rule 9 is applicable to the
bench warrant in the instant case,” and that (2) “(nJotwith-
standing the applicability of HREP Rule 9, the court did not
abuse its discretion by denying [Petitioner's] motion to disniss”
inasmuch as (a) “[Petitioner’s] ovn criminal conduct caused the
delay at issue, [and] his reliance on Mageo and Lei is
misguided,” and (b) “{blecause (Petitioner's) ovn criminal
conduct caused the delay at issue, his reliance on Nauven {v.
State, 109 $.W.3d 820 (Tex. App. 2003)] is misguided, "* and
“[olther jurisdictions [hold otherwise].
In reply, filed August 17, 2006, Petitioner argued
(2) “fals [Respondent] now concedes that its duty of due
diligence to serve warrant applies to the post-conviction bench
warrant served on [Petitioner] after nearly four years delay,
[Petitioner's] motion to dismiss must be granted,” and (2) “{t]he
continued)
diemias for Respondents’) failure to exercise due diligence in serving
{retitioner) fora period of four years, eight sonths in viclation of his due
process rights as enbodled by IIAP Rule 9” inasmuch as (a) "(t)he court
Erroneovely concluded, without ruling on the evidentiary issues, that HREP
Role 9 was Linited to a pre-conviction context,” and (b) “(t]he court erred in
Concluding thet Rule 9's application post-conviction would nullify HRS § 706~
G27," and that (2) “(plosteconviction due process, rights derived from the
{ieerey interest are guaranteed in U.S. and Hawel's Law" inasmuch
(a) "Iplost-conviction due process rights are well established in this
Jarisdiceion,” tb) *{d]ue process requires that probation revocation warrants
ved with due diligence,” and (e) “(t]he court erred in concluding that
‘provided ne due process protection once # determination of guilt was
spplication, Petitioner does not mention Nouven and so that
7
‘FOR PUBLICATION IN WEST'S HAKAI'T REFORTS AND PACIPIC REPORTERCH#
SS
record contains sufficient factual information to determine that
{Respondent} failed its duty to serve the bench warrant within
the time required by Rule 9” because “[a] thorough examination of
the case law cited by: [Respondent] reaffirms the fact that
{Respondent} failed to serve the warrant on [Petitioner] with due
diligence.”
qn.
As to the first argument in his application, Petitioner
maintains that “[t]he [court] clearly erred by concluding that
RPP Rule 9 has no application in the post-conviction context.”
In its order denying the motion to dismiss, the court stated in
pertinent part that HRPP Rule 9 only applied to post-conviction
proceedings as follow:
1, The language contained in Rule 9 of the (HRPP]
(rRuie 9") indicates that the rule applies ony to pre
conviction situations. . . ."{S]ubsection (a) (2) states[,)
cc {thle warrant shail issue upon a-complaint sss.
(udnmpnasis aaaeat-1)
Second, subsection (b) (2) sta
wthe warrant... shall |
iin” ((eimphaase Sesed(.1)
2. nar, Rule 9... ds preceded by Rule 7...
ile 7 and Rule 3 are’ contained in Section Tit,
in pertinent part:
be nse plies
“the charge."". «Role 9 is followed by
sgh 17-1 contained in’section IV, which
sed “arraigneent and preparation for trial." From a
Eva) standpoint, Rule 9... applies to obtaining the
appearance of the defendant prior to trial
4." Sectéon 706-627 of the [HRS] addresses the tolling
of probation... The exii
provision logically dictates
Probation proceedings.
see
= Mage and Lei dealt with... matters that
had not yet been adjudicateds
However, in its answering brief Respondent contends
that HRPP Rule 9, “when read in pari materia with HREP Rules 1,
2, and 49, is applicable to the bench warrant in the instant
FOR PUBLICATION 18 WEST'S IAWAT'T RETORTS AND PACIFIC REFORTERE#®
case{,]" and applies to both pre-conviction and post-conviction
proceedings. Sunmarized, Respondent's analysis is as follows:
REP Rule 1 provides that “(tJhese rules shall govern the
procedure in the courts of the State in
sedinas, with the exceptions stated in Rule $4." HRPP
Rule 1. “ROP Role 2 then provides that *(t]hese rules are
intended to provide for the just determination of avery
penal proceeding. They shall be construed to secure
Simplicity in procedure, fairness in adainistration and the
elimination of unjustifiable expense and delay.
<_s « HREP Rule 49(b) (1) provides in relevant part
that sisjervice of the complaint, indictment, bench warrant,
Whe? Role 49(c) provides in relevant part that. “ip]foot of
Service of complaint, indictment,
Role 49(6)- A bench warrant 1s defined
issued by the court itself, oF ‘from t
attachment or arrest of a person). eithe
‘contempt, or where an indictment has been found, or to bring
ina withess who fale to obeys subpoena.” Black's Law
Dictionary 156 (6th ed. 1990),
‘Sourt issued a bench warrant for [Petitioner“al.
Sirest ss HNPP Rule 49 euslicitly provides that
sock, when Oi Ht
SAS HEPP ules 11—2,_and 49, MEP Rule 2 Te applicable to
wciltjne existence of # Tolling statute does not
logically dictate that HRPP Rule 9 4s inapplicable to
pecbation proceedings. .. - HRS § 706-62) tolls the period
bf probation becavse without a tolling provision, “it mas
possible for the period of probation s - . to run out before
fesmination of the hearing, relieving the defendant of any
further obligation even though the defendant
comitted acts Justitying change in the defendant” s
probation ..'.”." Conmentary.on HRS § 706-627. HRPP
Rule 9(e) (3) (4), "on the other hand, requires that o warrant
be executed "without unnecessary delay.”
nate Hes © 7062677
(Some emphases in original and some added.) As Respondent
concludes, then, “[the HRP] apply to all penal proceedings.
Thus, any distinction between pre-conviction proceedings and
post-conviction proceedings is irrelevant.” As set forth above,
Respondent's analysis is cogent and correct.
wv.
x.
With respect to Petitioner's second argunent, because
HREP Rule 9 applies, Respondent was obligated to serve Petitioner
the warrant without unnecessary delay. The paraneters of a
violation of HRPP Rule 9 were first discussed in Mageo. In
Maaeo, the defendant was cited for driving without proof of
insurance on July 12, 1989, October 9, 1989, and March @, 1991.
78 Hawai'l at 34, 889 P.2d at 1093. The defendant did not report
to court in response to the citations and penal sunnonses were
issued for him on August 1, 1989, Novenber 1, 1969, and April 5,
1991, for the citations, respectively. Id, There was no record
of the sunnonses being served, returned unserved, cancelled, or
reissued for service. Id, The sunmonses were not served until
over two years had passed. Id, The district court dismissed the
case and the ICA in Mageo upheld the dismissal. Id, at 35, 969
P.2d at 1094.
Mageo said the trial court must balance the “interest
of the state against fundamental fairness to a defendant with the
added ingredient of the orderly functioning of the court
system.'"" Id, at 37, 889 P.2d at 1096 (quoting State v.
Morivake, 65 Haw. 47, 56, 647 P.2d 70S, 712 (1962) (internal
? waceo indicated that, [Jn the future, trial courts exercising
this power should sesue written factual findings setting forth their reasons
for dismissal with prejudice so that a reviewing court nay accurately assess
whether the trial court duly exercised its discretion.” 78 Hawai's at 38, 689
P.2d at 1097 (citation omitted)
10
FOR PUBLICATION IN EST’ HAWAI'T REFORTS AND PACIFIC REPORTER*##
quotation marks and other citation omitted). Similar to the
court's reference to Petitioner being present in the
jurisdiction, the defendant in Maceo indicated to the court that
“he had been in Hawai‘i since 1989[, ive. the entire tine the
summonses were outstanding,] and had not left the State.” Id. at
34, 889 P.2d at 1093. Maceo noted that “[tJhe record indicates
the Defendant was available for service in the jurisdiction over
the period of non-prosecution and there is no evidence Defendant
intentionally avoided service.” Id, at 38-39, 889 P.2d at 1097-
98.
In Magee the ICA declared that, “under the facts, ve
fail to see any viable basis for holding that the State, after
‘the long unexplained delay, may be revarded with an opportunity
to reinstate the case, thus engendering further delay and the
usurpation of the orderly and prompt disposition of criminal
“ Id. at 38, 889 P.2d at 1097. That court explained that
the State’s interest was outweighed by its failure to tinely
prosecute and the orderly functioning of the court system:
Ii}e acknowledge the State’s interest in punishing criminal
conduct. Thst ie clearly ostweighed, however, by the
sxeerly fon ‘ourt-svatem. There was 6 delay
of over two yeors from the issvenen of the pened eumaonees
£0 the prosecution of the case.” No explanation for the
3 he
Gelay. am ei
in service of the sunmonses.
Id. (emphases added). Accordingly dismissal was affirmed.
nn
‘*¢+FOR PUBLICATION IN WEST'S IDWAI'T REFORTS AND PACIFIC REPORTER*##
This court subsequently adopted the Maceo test in Lei.
In Lei this court sunmarized the ICA's analysis in Maceo as
“focus{ing] primarily upon whether the defendant was amenable to
service while the penal sunmonses were outstanding and whether
there vas a reason for the delay in serving the summonses." Lei,
98 Hawai'i at 285-86, 21 P.3d at 687-88.
There, the district court denied the defendant's motion
to dismiss for unnecessary delay in serving arrest warrants that
extended more than two y
rs. On appeal by the defendant this
court reversed the district court for abuse of discretion. This
court reiterated that “[w]e acknowledge the State’s interest in
punishing criminal conduct. That is clearly outweighed, however,
by the State’s failure to timely prosecute,” id, at 285, 21 P.3d
at 887 (quoting Mageo, 78 Hawai'i at 38, 889 P.2d at 1097), under
the circumstances. As in Magee, no bright-line rule for what
constituted “unreasonable delay” was established in Lei."
However, in determining whether “unreasonable delay” had occurred
in violation of HRPP Rule 9, this court, as did Mageo, focused on
whether the defendant vas amenable to service of the warrants
+ nie Petitioner seens to posit thet a two-year delay is an
unnecessary Gelay per se) snd prior decisions have made nention of delays of
more than two years, this state has never adopted #uch @ Bright-1ine temporal
Yule. See Lei, 95 Howai'l ot 266, 21 Psd at O66; Ovens, 113 Hawaivt at 476,
155 P.3a at €5€; Skate v. Deryke, 113 Hevai'i 120, 126, 148 P.36 1222, 1228
(ipp. 2006) (Foley, J-, dissenting) (citing Led, ‘95 Mawai'd at 266 n.3, 22
P.sd at 868 1.7), cert, 116 Hewes 61, 158 P.36 278 (2007); Maceo,
‘To Mawat's at 38," Ge Fea at 1097)
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during the period they were outstanding and whether there was a
reason for delay in serving the warrants. Lei, 95 Hawai‘ at
286, 21 P.3d at 888. This determination involved inquiry into
whether the defendant was “available for service while the bench
warrants were outstanding[,]” whether there was “indication in
the record that [the defendant] intentionally avoided service(,]”
whether the prosecution could “adduce any evidence that it
attempted to serve [the defendant] during that time; and whether
the prosecution could
stablish that an attempt to serve [the
defendant) would have been futile.” Id. Accordingly this court
held “that the trial court abused its discretion in failing to
dismiss the charges based on HRPP Rule 9.” Id. at 287, 21 P.3d
at 889.
v.
Petitioner's case is similar to Masco. First,
Petitioner maintained there was a violation of his due process
rights. According to Petitioner the five years’ passage
inhibited his ability to confront any witnesses against him and
the fading of memory that accompanies the passage of time made it
more difficult to defend himself.
Second, like the defendant in Maceo, Petitioner failed
to respond to a court order to appear. Subsequently in Maaso, @
‘summons was issued. In the instant ci
) @ bench warrant was
issued after a failure to report in accordance with a condition
33
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Snr
of probation, Similar to Mageo, in this case there is no record
of an attempt to serve the warrant and no record of any followup
attempts to serve over the nearly five-year period. In both
c the defendants were apparently present in the jurisdiction
during the time the warrants were outstanding, and there was no
evidence the defendants intentionally avoided service. As in
Mageo, here Respondent had no explanation for the delay in
service after the warrant was issued. Under Mageo, then, the
delay of nearly five years in serving Petitioner with a warrant
for his arrest amounts to an unnecessary delay in prosecution,
warranting disnissal,
vr.
In its answering brief, Respondent contends, however,
that “[Petitioner’s] failure to follow the terms and conditions
of his probation during February and March 2001 left {Respondent}
without the information needed to contact him causing the delay
at desue.” Specifically, Petitioner failed “to (1) appear in
Person at ASB on February 21, 2001, in violation of the court's
order and the terms and conditions of his probation, and
(2) notify his probation officer of any changes in his mailing
address before any such change, in violation of the terms and
conditions of his probation[.]” According to Respondent,
“[Petitioner’s] own criminal conduct ca
sd the delay in
executing the warrant for his arrest and any attempt to serve the
address on record would have been futile.” Thus, Respondent
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ee
argues, “Because the delay was due to (Petitioner's) on criminal
behavior, there was no unnecessary delay on the part of the
[Respondent].
Tt may be observed that Respondent produced no facts to
support this allegation. Respondent failed to adduce any
evidence at all that Petitioner's failure to report to the
probation officer or the returned letter from the probation
department marked “return to sender” affected its ability to
serve Petitioner after the warrant was issued. Such matters, in
fact, preceded the issuance of the warrant. This court has never
held that delay in serving the warrant under HRPP Rule 9 because
of alleged pre-varrant issuance conduct is to be considered in
determining whether a warrant subsequently issued was served with
unnece:
ry delay. The reason is obvious, To hold otherwise
would render HRPP Rule 9 a nullity. The HREP Rule 9 requirement
that unnecessary delay be avoided refers to delay in serving the
warrant and, thus, such delay is measured after the warrant is
issued.
Significantly, Respondent does not contest the court's
statement that Petitioner w
present in the jurisdiction and
Respondent made no attenpt to serve him. Indeed, Respondent does
not indicate what, if any attempts it made to serve over the
nearly five year peried. Thus, Respondent only speculates that
“it would have been futile” to serve under these circumstances.
As in Lei, Respondent did not attempt to “adduce any evidence
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SSS
that it attempted to serve” Petitioner during the subject period.
98 Hawad's at 286, 21 P.3d at 888 (emphasis added). Under such
circumstances Respondent's interest in prosecution “[was] clearly
outweighed . . . by . . . [its] failure to timely prosecute and
by the impact on the orderly functioning of the court system.”
Maceo, 78 Hawai'i at 38, 689 P.2d at 1097.
vir.
‘The ICA apparently agreed with Respondent. Citing Lei,
the ICA declared that periods of necessary delay in serving a
bench warrant are: “(a) periods when the volume of outstanding
warrants is unusually high due to exceptional circumstances;
(b) periods when the defendant was not reasonably available for
service; and (c) periods when reasonable but unsuccessful
attempts were made to serve the bench warrant.” Ovens, 113
Hawai‘ at 476, 155 P.3d at 659,
‘As to (a) and (c), the ICA conceded that, “[i]n this
case, there is no evidence of any period when the volume of
outstanding warrants was unusually high due to exceptional
circumstances or the prosecution made reasonable but unsuccessful
attempts to serve the bench warrant.” Id, at 477, 155 P.3d at
660. As to (b), the ICA found, however, that “[Petitioner) would
have been timely served with the motion, and the bench warrant
would not have been necessary, had [Petitioner] not [violated
Probation]” and, thus, ruled that “the violation by [Petitioner]
of [his terms of probation] are periods of necessary delay in
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serving the bench warrant on him.” Id, (emphasis added). The
ICA's reasoning was purportedly based on a policy that
IA) person on probation should not be allowed to benefit
fron not being tinely served a bench warrant issued because
‘one of nore terms and conditions of the person’ s probation
were violeted unen, But ens
‘obstion and eareant baw
been necessary.
Id (emphasis added) .
‘AAs mentioned before, under the ICA’s theory, there
could never be unreasonable delay under HRPP Rule 9 if the
failure to obey a court order that resulted in the issuance of
the arrest warrant counts as a necessary period of delay. As in
this case, neither Mageo nor Lei responded to court orders to
appear. Thereafter, bench warrants were issued. Mageo, 78
Hawai'i at 34, 889 P.24 at 1093.
Mageo also considered whether the defendant was
available for
vice and whether he intentionally avoided
service, but never suggested the defendant’s failure to appear at
court, necessitating issuance of the warrant, started a necessary
period of delay running under HRPP Rule 9. Mageo, 78 Hawai'i at
38-39, 889 P.2d at 1097-9
‘That Petitioner failed to appear pursuant to court
order is not germane to the analysis under HRPP Rule 9, except as
‘the ground for initiating the summons or arrest warrant. It is
the reasons for the delay engendered after the arrest warrant is
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SSS
issued that are pertinent to whether “execut (ion]” of the warrant
was accomplished “without unnecesary delay by the arrest of the
defendant” under HRPP Rule 9. In both Maceo and Led, dismissal
vas upheld because there was an undue delay in failing to serve
the summons or warrant in a timely fashion in the absence of
evidence the defendants were avoiding service.
8
Additionally, if as the ICA contends, “but for” the
Probation violation, “the person would have been served with a”
revocation motion and the bench warrant would not have been
necessary, HREP Rule 9 would not have been in issue at all. as
Petitioner argues, the ICA blurs the difference between a HRPP
Rule 9 hearing and a hearing to revoke probation. Petitioner
maintains that “(i]n a HRPP Rule 9 hearing, the court’s inguiry
focuses on the state’s duty of due diligence . . . [whereas iJn a
MRP hearing, the court’s inguiry focuses on whether the Defendant
has inexcusably failed to comply with a substantial term of
Probation.”
Petitioner contends that “[i]f [Respondent] had failed
its duty to serve the bench warrant according to the law, then
the MRP would have been dismissed . . . .” Secondly, if
Respondent proved the delay in service was not unfair, “then the
court could address (Respondent’s MRP] in a separate hearing to
determine if [Petitioner] had inexcusably failed to comply with
the terms and conditions of his probation.”
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SSeS
‘The probation violations cannot be denominated as
“periods when the defendant was not reasonably available for
service,” Qvens, 113 Hawai'l at 476, 155 P.3d at 659 (emphasis
added), for HRPP Rule 9 periods relate to the period after the
ssuance of the arrest warrant. As stated by Petitioner, the
faulty logic by the ICA “relieves [Respondent] of its burden of
due diligence for a period of time that is more than twice as
long as that contemplated in Lei despite an evidentiary record
where there are no attempts to serve and there was no reason to
believe [Petitioner] was not amenable to service.” Respondent's
lack of diligence in serving Petitioner for almost five years is
uncontested. Respondent had no explanation for the delay in
service. There is no evidence that Petitioner was not amenable
to service had an attempt at service been nade.
vitt.
As to the third argument, Petitioner argues that “(tJhe
ICA included a number of supposed factual findings in its opinion
that were never considered by the trial court, including many
that were never asserted in written argument by any of the
parties,” and further that “in the absence of an evidentiary
record, the ICA concluded that [Petitioner] didn’t have
permission to be in Maui and that he didn’t go to Maui after his
probationary term was already completed.” According to
Petitioner, “InJone of those facts had been decided or even
contemplated during the HRPP Rule 9 hearing.” While it appears
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Ss
Petitioner is generally correct, in light of the foregoing
analysis, further discussion of this argunent 4s not require
m.
Based on the foregoing, the ICA's April 13, 2007
Judgment, the court's December 20, 2005 order revoking probation
and order of resentencing, and its January 10, 2006 Findings of
Fact, Conclusions of Law, and Order Denying Defendant’ s Motion to
Dismiss for Violation of HRPP Rule 9 are reversed.
Nathan Kanale Sadowskt, Gor
Deputy Public Defender,
for petitioner/defendant-
appellant. :.
anne K, Clarkin, Deputy
Prosecuting Attorney Races Oreotee yore
(Sonja P. McCullen,
plaintift-appellee. Ren «. Busty be
20
|
170a4ed5-5efc-4168-a017-287f784fb162 | In re Contested Case Hearing on the Water Use Permit Application filed by Kukui | hawaii | Hawaii Supreme Court | ++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00"
92 9300
IN THE MATTER OF THE CONTESTED CASE HEARING ON THE WATER USE
PERMIT APPLICATION FILED BY KUKUI (MOLOKAI), INC.
No. 24856
130
APPEAL FROM THE COMMISSION ON WATER RESOURCE MANAGEMENT
(CASE NO. CCH MOS7-1)
DECEMBER 26, 2007
MOON, C.J., LEVINSON, NAKAYAMA, AND ACOBA, JJ.,
AND CIRCUIT JUDGE SAKAMOTO, IN PLACE OF DUFFY, J., RECUSED
OPINION OF THE COURT BY NAKAYAMA, J.
‘The present matter involves multiple appeals from the
December 19, 2001 final decision and order of the Commission on
Water Resource Nanagement
(“the Commission”) approving Kukui
(Holoka'i) ,
Inc.'s (“KNI's") application for water use permits.
on appeal, intervenor-appellants (collectively referred to as
~pppellants”) Department of Hawaiian Hone Lands (“HHL”), Office
of Hawaiian Affairs ("OHA"), and Judy Caparida (“Caparida”) and
Georgina Kuahuia ("Kuahuia") generally allege multiple violations
of the Commission's public trust duties under the Hawai'i
Constitution, the State Water Code ("Code"), and the public trust
doct rin
Specifically, the Appellants raisi
the following
points of error.
DHL asserts that: (1) the Commission failed to
recognize that the preservation of a sufficient and accessible
water supply for the current and future development of Hawaiian
Hone Lands is a distinct public trust “use”; (2) the Commission
failed to apply even minimal scrutiny to KMI’s request to divert
public trust resources; (3) the Commission erroneously placed the
‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
burden of proof on DHEL to produce “conclusive evidence” of harm
to the public trust resource:
(4) the Commission's decision te
grant KMI's application, subject to recall or modification if it
is later denonstrated that the public trust resources have been
harmed, violated the precautionary principles (5) the Commission
exceeded its statutory authority by considering an untimely
existing use application; (6) the Commission lacked authority to
grant new or proposed uses at a hearing to determine existing
uses; and (7) the Commission lacked authority to grant existing
uses that were not claimed in KMI's application.
OHA contends that: (1) the Conmission erred by
allocating water for “proposed uses” during proceedings to
determine existing uses; (2) the Commission erred by concluding
that KMI had correlative rights to transfer ground water; (3) the
Commission erred by not utilizing the precautionary principle
espoused by this court in In re Water Use Permit Applications, 94
Hawai'i 97, 9 P.3d 409 (2000) (“Waiahole 1”); (4) the Conmission
erred by concluding that OHHL's constitutional water reservation
Was not an “existing use” and thus did not limit the granting of
other permit applications; (5) the Commission erred by ignoring
the fact that KMI’s hotel and golf course closed, thus
eliminating the “purpose” of the water sought; and (6) the
Commission’s utilization of Attorney Yvonne ¥. Izu created a
direct conflict of interest requiring vacatur of the Commission's
final decision and order.
Caparida and Kuahuia argue that: (1) the Commission
failed to comply with the five-year deadline set forth in Hawai'i
Revised Statutes ("HRS") § 174C-S0(g), thus rendering its
2
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application of HRS § 174C-50(b) inappropriate; (2) the Commission
erred by approving new uses insofar as KMI represented that its
application was only for existing uses; (3) the Commission
erroneously concluded that KMI's proposed use would have no
measurable impact on traditional and customary gathering rights
of native Hawaiians; (4) the Commission erred by failing to
recognize DHHL's constitutional water reservation as an “existing
legal use” and concluding that KMI’s request could be
acconnodated without compromising the reservation or exceeding
the sustainable yield of the Kualapu'u aquifer: and (5) the
Commission erred by denying their motions to (a) reopen the
record to receive information regarding the closing of KMI’s
hotel and golf course, and (b) continue the October 17, 2002
hearing until the foregoing information could be incorporated
into the parties’ arguments and considered by the Conmission.
For the following reasons, we hold that: (1) DHHL's
reservation is a public trust “purpose” and not an “existing
legal use”; (2) the Commission failed to adequately scrutinize
fort's request to divert water? (3) the Commission appears to have
placed the burden of proof on DHHL to demonstrate that pumpage at
KOI's well would increase the chloride concentration at the DHHL
well site (4) the Conmission’s decision did not violate the
precautionary principle; (5) the Comission erred by considering
an untimely application; (6) KMI requested both existing and new
uses; (7) pursuant to HRS § 174C-49(c), KMI may transport water
from Well #17; (8) the Connission erred when it failed to
consider the impact that the closing of the hotel and golf course
would have on its allocation of water to KMI; and (9) the
3
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Commission impermissibly shifted the burden of proving harm to
those claiming a right to exercise a traditional and customary
native Hawaiian practice.
Accordingly, we vacate the Commission's Decenber 19,
2001 final decision and order, and remand the matter for further
proceedings consistent with this opinion.
1. BACKGROUND
on May 13, 1992, the Commission designated the island
of Moloka‘i as a Water Management Area. The Commission’ s
designation took effect on July 15, 1992, thereby triggering a
one-year period’ during which users were required to file
applications for a permit to continue any pre-existing
wwithdrawal, diversion, impoundnent, or consumptive use of
water[.J" HRS § 174C-48(a) (Supp. 1992).
on June &, 1993, Moloka'l Irrigation System and Moloka‘t
Ranch submitted an initial joint application for a water use
permit to divert water from Well #17 (Well No. 0901-01) for use
at the Kaluako'i Resort and Kualapu'u Town. Moloka' Ranch owned
the land overlying Well #17 at that time. However, on October
19, 1993, ownership of the land was transferred to KMI. On
1 HRS $ 174c+50(¢) (Supp. 1992) provides as follow:
An applicetion for a permit to continve an existing use must be
Rade within period of one year from the effective date of
Gesignation. Except for appurtenant rights, failure to apply
Within this period creates s presumption of abandonment of the
se, and the user, if the user desires to revive the use, must
apply for a permit under section 174C-S1, If the commisolon
Setermines that there se just cause for the failure to file, it
ey allow a late filing. However, the comiesion may not allow a
[ete Hilng more than five years after the effective date of rules
Ssplenenting ehie chapter. The commission shall send two notices,
one of which shail be by registered mail, to existing users to
file for an application for a permit to Continue an existing use
4
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December 15, 1993, KMI submitted its own application requesting a
permit authorizing the use of 2.0 million gallons of water per
day ("mgd").
on April 14, 1994, the Conmission staff recommended
that the Commission consider KMI’s submittal as a late filing,
pursuant to HRS § 174C-S0, insofar as it was not filed within one
year of the July 15, 1992 effective date of the Commission's
Water Management Area designation, Nevertheless, the staff
recommended that the Commission find good cause for the late
filing based upon the following:
‘The opplicant has stated that the deed to the land was in the
Process of being transferred at about this time. le did not
Eoresee the unexpected delays caused by three changes in the
anagenent staff cf the party selling the property. He has stated
Thots as soon as the transfer was secure, he was able to sigh a2
Jondowner, thereby allowing his suamitesl of
application te the Commission, Staff finds the
Suee cause for a late filing.
on March 14, 1995, following several revisions, the
Commission staff recormended that the Commission authorize an
interim use of 871,420 gallons per day ("gd"). The Commission
voted to accept the staff's reconmendation. The Conmission filed
its notice of action on Mazch 30, 1995. KMI thereafter filed a
motion for reconsideration and also appealed the March 14, 1995
decision to this court and the second circuit court. KMI's
motion for reconsideration vas denied on June 14, 1995, and its
appeals to this court and the second circuit court were disnissed
for lack of appellate jurisdiction.
on May 21, 1996, the Commission reviewed 2 staff
reconnendation to amend the interim existing use allocation and
authorize 1.169 mgd. Following public comment, the Commission
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
voted to reject the staff's recommendation and reaffirm the March
14, 1995 interim existing use allocation of €71,420 ad. KMT
thereafter requested a contested case hearing on the matter.
The contested case proceedings commenced on Noverber
23, 1998, before hearings officer Peter Adler (“Adler”). On May
15, 2000, following the evidentiary portion of the proceedings,
the Comission filed its “Proposed Findings Of Fact, Conclusions
Of Law, And Decision And Order{.]” On July 31, 2000, DHHL, OHA,
WI, and Ceparida and Kuahuia filed their respective exceptions.?
on October 15, 2001, Caparida and Kuahuia filed
*wotion For Reopening Of Record And Continuance Of Argument On
Exceptions To Hearing Officer’s Proposed Decision And Order”
based upon a discrepancy between the actual metered water uses
reported by KMI and certain information provided by Molokai
Public Utilities, @ subsidiary of KMI.?
‘The Conmission filed its “Findings Of Fact, Conclusions
Of Law, And Decision And Order” on Decenber 19, 2001.‘ Therein,
‘the Conmission denied Caparida and Kushuia’'s notion, and awarded
HUT an existing use permit, pursuant to HRS § 174C-50,
authorizing the withdrawal and reasonable and beneficial use of
$36,000 gd. The Commission further awarded HMI a permit for
proposed uses, pursuant to HRS § 174C-49(a), authorizing the
withdrawal and 4
sonable and beneficial use of 82,000 gd.
+ iL and OHA filed joint exceptions to the Commission's “Proposed
Findings of Fact, Conclusions Of Law, And Decision And Order{.)"
> ge appears that Coparida and Kuahuia refiled the same motion on
ceteber 18, 2001
«me particulars will be set forth as they becone relevant in the
forthcoming discussion
*#** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Given that the sustainable yield of the Kualapu'u aquifer was
close to full allocation, the Commission subjected both permits
to the following special conditions:
1
If there are significant of unexpected increases in
chioriaes er drawdowns in the two DHKL wells, the DNS
Well, or KO's Well 17, substantially in excess of
What’ they were on the effective date of designation,
any party nay petition the Commission, or the
Commission may on ita own notion, order a show caust
hearing ae to why the permittea amounts of withdrawal
of water should not be reduced along with lawful and
equitable reductions in punpage from other wells in
the Kualapu'u Aquifer.
‘The approxinately 100,000 (qd) of water used to clean
the flitere through back washing near the Moana Makant
Subdivision are to be metered, recaptured, and used
for irrigation of the golf course or for other outdoor
Uses. A flow meter, approved by the Chalrperson,
Shall be installed to measure the back wash water used
to clean the filters, ‘The flow meter shall be
operational within 30 days of the issuance of the
Aforenentioned pernite, Meter readings are to be
taken monthly and made available to the Comission
pen request. “If and when the back-washing system is
bo longer needed, that amount of water may be used to
Blend with non-potable alternative sources for the
Fesort’s other non-potable applications and uses.
Meters are to be installed within 90 days of the
issuance of the aforenenticned permits (2) to measure
the amount of non-potable sewage effluent going into
the golf course irrigation lake; and (b) to measure
‘the snount of non-potable water withdreun from the
golf course irrigation lake for irsigation of Moles 2
Through 6 of the golf course. Meter readings are to
be taken monthly and nade available to the Commission
st thelr request.
Within six-months of the date of issuance of the
aferenenticned permits, KMI will prepare and present
fo the Consission a report on the affirmative steps it
is taking to contrel leskage and evaporation from the
Wir water systen, This report need not include
Leskage or evaporative losses incurred az Ril’ s
permitted water passes through the Molokas Irrigation
System.
Within twenty-four months of the date of Lesuance of
the aforementioned permits, si will prepare and
present to the Commission & feasibility study on the
Bevelopnent of a new source of nonpotable water near
Mahana which con be blended to ierigate the golf
"+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
6 ‘Through xeriscaping, low-flow fixtures, water
Elencing, and other similar practices, Koko!
(Woloka't), Inc., or its successors or assigns, will
make every resscnable effort to encourage and practice
the conservation of potable and non-potable water at
its hotel ana resort’ condoninium operations lots and
at private residences that are users of water pamped
fiom well #17. fol will submit a written report to
the Commission, within six months of the date of
issuance of the aforenentioned peraite, on the
progress of compliance with the terms of thi
Eonaition.
7 four will prepare and distribute a memorandum to all
ot and condesiniun omners notifying then of the need
to practice conservation of potable and non-potable
waters, A copy of the menorandum shall be sent to the
Conmiszicn.
@ 2 and when HOH is able to establish its oun potable
water delivery system fron Well 17 to the Kaluako!
Notel, resort condominiums, and residential lets, the
anounte permitted a2 “WIS System User charges”
SEIT be Feseinded.
DAHL filed a notice of appeal on January 17, 2002. OHA
filed @ notice of appeal on January 18, 2002. Caparida and
Kuahuia filed a notice of appeal on January 18, 2002.*
IT, STANDARD OF REVIEW
A, Administrative Decisions
HRS § 174C-12 (1993) provides: “Judicial review of
rules and orders of the commission under this chapter shall be
governed by [HRS] chapter 91 [of the Hawai'i Administrative
Procedures Act, or HAPA]. ‘Trial de novo is not allowed on review
of commission actions under this chapter.”
Regarding appeals from agency decisions generally,
+ on February 22, 2002, while the appeal was pending, Kaluakoi Land,
LIC filed a “Motion For Substitution Of Parties[.)" Therein, Faluakos Land,
LLC explained thet it acquired the assets of WI.
8
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HRS § 92-14 (g) (1993) enumerates the standards of review
applicable te.an agency appeal and provide:
dpon review of the record the court may affirm the decision of the
agency or renand the case with instructions for further,
proceedings; or it may reverse or modify the decision and order if
Ehe substantial rights of the petitioners may have been prejusiced
Because the administrative findings, conclusions, decisions, oF
orders ere:
(1) in eiolation of constitutional and statutory provisions or
(2) In excess of the statutory authority or jurisdiction of the
agency oF
3) "Made upon unlawful procedure: or
(4) Affected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative, and
Subetantial evidence on the whole record; oF
(6) Arbitrary, or copricious, or characterized by abuse of
discretion or clearly unearranted exercise of discretion.
GATRI v. Blane, 88 Hawai'i 108, 112, 962 P.2d 367, 371 (1998)
(citing Poe v, Hawai'i Labor Relations Bd., 87 Hawai'i 191, 194-
95, 983 P24 $69, 572-73 (1998).
{Fors} are reviewable under the clearly erroneous standard
to determine if the agency decision was clearly erroneous in view
of reliable, probative, and substantial evidence on the whole
record. Alw AT 295, 297, 942
Pi2d' $39, 541
cecision was in violation of conseitucsonal or statutory
provisions, in excess of statutory authority or jurisdiction of
Sgency, or affected by other error of law. isrdin v-Bkibs, 84
Hawai! 305, 310, 933 7.28 1339, 1348 (2997) (elestione omitted) 7
ARS 6S 92-149) (2), (21, and (4)
“A COL that presents mixed questions of fact and law is
reviewed under the clearly erroneous. standard because the
Conclusion is dependent upon the facts and circumstances of the
particular case.” Price‘, Zoning Bd of Ampeals of City and
u TP Hewat 166, 172, 683 6-24 625, 633 (1954) .
‘an appellate
and experience
linen nixed questions of law and fact are presented,
court must give deference to the agency's expert
in the particular field. visions
fc, Yi RaniL, 72 Haw, 419, 420, 794 F.2d 1115, 1216 (1990)
S[rfhe court should not substitute is own judanent for thet of the
agency.” Id (citing Canara v. Aasnlud, 67 Hox. 212, 216, 685
Plze 794, 787 (1984))-
Boe, 87 Mawas"t at 197, 983 P.2d at $73
Ince Water Use Permit Applications, 94 Hawai'i 97, 119, 9 P.3d
408, 431 (2000) (“Waiahole 1”) (quoting Curtis v, Board of
Appeals, 90 Hawai'i 384, 392-93, 978 P.2d 822, 830-31 (1999).
An FOF or mixed determination of law and fact is clearly
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erroneous when (1) the record Lacks substantial evidence to
Support. the finding cr determination, or (2) despite substantial
Svidcnce to support the finding or determination, the appellate
Court is left with the definite and firm conviction thats mistake
fae been made.” See Leslie v, Estate of Tavares, sl Hawai'i 394,
309, 384 Pe2d 1220, 1226 (1995). "We hove defined ‘substantial
as credible evidence which 1s of sufficient quality and
Value to enable a person of reasonable caution to
Support a conclusion.” id, quoting Skate v, Kotig, 91 Hawai'i
Sib, 328, 984 P.2d 78, 67 (1999)).
B. Statutory Interpretation
In construing statutory language, this court has
adhered to the following framework:
First, the fundenentel starting point for statutory interpretation
[elthe language of the statute itselz. Second, where the
Statutory languege i¢ plain and unambiguous, our sole duty is to
Give effect to ies plain and obvicus meaning. Third, inpiicit in
the cask of Statutory construction is cur foremost obligation to
ascertain and give effect to the intention ef the Legislature,
nich is to be obteined primarily from the language contained in
The statute itecl£. Fourth, when there is doubt, doubleness of
neaning, of incistinetiveness or uncertainty of an expression used
Tha statute, an ambiguity existe. And fifth, in construing an
anbiguoss statute, the seaning of the ambiguous words may be
SSoght by examining the context, with which the ambiguous words,
Phrases, and sentences nay be compared, in order to ascertain
Eheir true meaning.
Auakuni v, Awana, 115 Hawai'i 126, 133, 165 P.3d 1027, 1034
(2007) (citation omitted).
III, DISCUSSION
It 4s now well established that the public trust
doctrine is a “fundamental principle of constitutional law in
Hawai'i,” Waiahole 1, 94 Hawai'i at 131-32, 9 P.3d at 443-44, and
that its principles permeate the State Water Code. See id. at
130, 9 P.3d at 442 ("[(T]he legislature appears to have engrafted
the doctrine wholesale in the [State Water] Code.”); see also In
re Wai'ola 0 Moloks'i, Inc., 103 Hawai'i 401, 429, 83 P.3d 664,
692 (2004) ("(T]his court traced the historical development of
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eee cwweeeuvw).042o
the public trust doctrine in Hawai'i and reasoned therefrom that
article XI, sections 1 and 7 of the Hawai'i Constitution .
adopted ‘the public trust doctrine as a fundamental principle of
constitutional law in Hawai'i’ and that the legislature, pursuant
to the constitutional mandate of article XI, section 7,
incorporated public trust principles into the (Water] Code.”
(Citing Kalahole 1, 94 Hawai'i at 130-32, 9 P.3d at 443-45.)).
We have recently explained the basic precepts of the
state water resources trust as follows:
cunder the public trust [doctrine] and the Code, permit
applicante have the burden of justifying their proposed uses in
{Ugnt°SF protected pubiie sights in the rescurce.”" Mgianole I, 94
onai's at 160, 9 Paid at 472, The Water Code requires,
Alia, that the opplicant prove that the proposed use of water 4s a
Rfeatonable-beneficisl use" and is “consistent with public
dneerest.” HRE 46 174CM49(a) (2) and. (4) (1993). "Reasonable~
beneficial use” is defined a “the use of water in such a quantity
be i pacesaary for economic and efficient utilization, fora
porpeses and in a manner which is both reasonable and consistent
Wieh the state and county land use plans and public interest.”
ins'§' 1740-3. (2993) (emphasis added) «
Furthermore, besides advocating the social and economic utility of
their propeved uses, permit applicants must also genonstrate the
Eitennstive water sources. Such a requirenent ss intrinsic to the
public trost, the seatstory instream use protection scheme, and
fhe definition of "zeasonable-beneficiel" use, and is an essential
part of any balancing between competing interests.
Meiahole 1, 9¢ Hawai'i at 161, 9 P.3d at 473 (citation onitted)
Tenphasi? added). In addition, “applicants must stiil dencnstrate
thelr actual neede and, within the constraints of available
knowledge, the propriety of draining water from public streans to
Taty those needs." dd, at 162, 9 P.3d at 47ée
‘the Water Commission, on the other hand, is duty-bound to
place the burden on the applicant te Justify the proposed water
Use in Light of the trust purposes and "weigh competing public and
private water uses on a caserby-cace bagis(,]” requiring a higher
Tevel of scrutiny for private commercial water usage. id, at 142,
S'Piid at 454, Horeover, es discussed aupra in section TIT-A.1.,
the Water Commission’ findings aust reasonably explain and
Sustity its conclusions ang rulings. 1d, at 157-58, 9 F.3d at
tes-70.Finalty,
the Commission must not relegate itself to the role of
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ere “onpire passively calling balls and strikes for
Sdversaries appearing before it,” but instead must take the
Initiative in considering, protecting, and advancing public
Eights in the resource at every stage of the planning and
decisionnaking process... = Specifically, the public
trust compels the state duly to consider the cumative
Impact of existing and propésed siversions on trust purposes
nd to inplenent reasonsble measures to mitigate thie
Impact, including using alternative resources. «= + Ip
the ata
Silssense, and forest re with
Heke riahts comand under the laws of our state.
Ld. st 143, 9 P.36 at 455 (citations omitted) (emphasis added)
In‘Light of the foregoing, this court must take a "close look” at
the Water Commission's action to determine if it complies with the
Water Code and the public trust doctrine.
Inte Water Use Permit Applications, 105 Hawai
P.3d 643, 657-58 (2004) (“Waiahole II”).
Although expressed in terms of the diversion of water
1, 15-16, 93
from public streams, this court has stated that the doctrine
“applies to all water resources without exception or
distinction[,]" Waiahole I, 94 Hawai'i at 133, 9 P.3d at 445, and
“unlimited by any surface-ground distinction.” Id, at 135, 9
P.3d at 447. With these general principles in mind, we turn to
the arguments presented on appeal.
A. DHEL's Points of Error
Le ‘
o eT
DHHL, OHA, and Caparida and Kuahuia each assert that
DHHL's 2.905 mgd reservation is a distinct or existing “use”
under the public trust. They thus challenge the Commission's
conclusion of law (“COL”) #24, which states as follows:
24. Di, OWA, and Intervenors, Judy Caprice (eke)
Georgina Kuahuta, and Sarah Sykes.
thet the water reservation in favor Of ol
Kuslapo'u Aquifer te an existing legel use that is
being interfered with by this proposed use. The
Comission disagrees because @ water reservation i
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not an existing legal use,
However, that issue has been conclusively resolved by
this court’s opinion in Mai‘ola, filed during the pendency of the
present appeal. Therein, se concluded that, “pursuant to the
plain language of HRS § 174C-49(d) and HAR § 13-17-63, a
‘reservation’ of water does not constitute an ‘existing legal
usa’ for purposes of HRS § 174C-49(a) (3). lai‘ola, 103 Hava
at 427, 63 P.3d at 690 (emphasis added). Nevertheless, we held
that DHHL’s constitutional reservation of water resources
“constitutes a public trust purpose[,]” Wai'ola, 103 Hawai'i at
430, 83 P.3d at 693 (emphasis added), “entitled to the full
panoply of constitutional protections afforded the other public
uy." Ia
trust purposes enunciated by this court in Waiahole
As such, the Commission was obligated to “take (DHHL's
reservation] into account in the planning and allocation of water
resources, and to protect [it] whenever feasible(,]” id. (citing
Maiahole I, 94 Hawai'i at 141, 9 P.3d at 453 (quoting Nat‘)
Audubon Soc'v v. Superior Court of Alpine County, 33 Cal.3d 419,
169 Cal. Rpte. 346, 658 P.2d 709, 728 (cal. 1983), cert, denied,
464 U.S. 977 (1983))), insofar as its status as a public trust
purpose rendered it “superior to{) the prevailing private
‘th Maianole 1, this court identified the following three public
trust purposes:
(1) water resource protection, which includes “the maintenance of
asters in their natural state” as "a distinct use” and “disposes
of any portrayal of retention of waters in their natural state 2
‘waste’"; (2) domestic use protection, particularly drinking
waters and (3) the exercise of native Hawaiian and traditional and
Costomary rights.
203 Hawas's at 429, 83 F.3d at 692 (citing Maiahole J, 4 Hawai'i at
9 P.3G at 448-50)
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interests in the resources at any given time.” Id, at 429, 83
P.3d at 692 (citing Waishole I, 94 Hawai'i at 138, 9 P.3d at
450). As previously mentioned, the public trust doctrine
“effectively prescribes 2 ‘higher level of scrutiny’ for private
commercial uses . . . (and) that the burden ultimately lies with
those seeking or approving such uses to justify them in light of
the purposes protected by the trust.” Id. (citing Waiahole 1, 94
Hawai'i at 142, 9 P.3d at 454), That being said, the Commission
is, by no means, categorically precluded from approving uses
which may compromise DHHL's reservation, so long as the
Commission's decision is “made with a level of openness,
diligence, and foresight commensurate with the high priority
these rights command under the laws of our state.” Id. (citing
Wajahole I, 94 Hawal' at 143, 9 P.3d at 455)7 gee also Najahole
LZ, 105 Hawai's at 16, 93 P.3d at 658 (same); Hai'ola, 103 Hawai‘
at 433, 83 P.3d at 696 (“Thus, to the extent that the
Commission's decision compromised DHHL’s existing wells in the
Kualapu's aquifer system, we believe that the Commission did so
‘with a level of openness, diligence, and foresight commensurate
with the high priority these rights command under the laws of our
state.’” (Citation omitted.)).’
+ ie also note that OWA additionally asserts that D#iL' s water
reservation rights are grounded in the "federal-reserved-water-rights”
Sect rine pronounced in the United States Suprese Court's decision in Minter,
Si Uniced states, 207 U.S. 564 (1906). In Hal‘ala, however, this court
Fejected that precise svgiment, stating that “the 1991 amendments to [the
sn Womes Cormiesion Act) § 220, HRS $ 174C-€9(a) (7), and HRS § 2
2Ol{a) comprise the state law equivalent to the Winters doctrine for purposes
of honesteaders on Hawaiian homelands. Thus, eh Soctrine is
Inapplicable to the present matter.” 103 Hawai at 420 n.20, 83 F.3d at 631
poze
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‘The Commission failed to adequately scrutinize Kuz!
peguest to divert water.
DHHL’s second point of error contends that the
Commission failed to apply even minimal scrutiny to KMI's request
to divert water from the Kualapu'u Aquifer for private connercial
use. This is an apparent reference to this court’s previous
admonition in Haiahole I, that “[u)nder no circumstances . . . do
the constitution or the Code allow the Commission to grant permit
applications with minimal scrutiny.” 94 Hawai'i at 160, 9 P.3d
at 472, For the following reasons, we agree with DHKL that the
Commission's decision lacked the requisite degree of scrutiny.
a. The sustainable yield
Specifically, DHHL argues that the Commission failed to
apply the requisite level of scrutiny insofar as it relied on the
5.0 mgd sustainable yield determination in spite of evidence that
the Kualapu'u Aquifer may be overdrawn and that the sustainable
yield may actually be as low as 3.2 mgd. The Commission counters
that the 5.0 mgd sustainable yield is statutorily deemed to be
the appropriate planning guideline when balancing such competing
interests. Utilization of the sustainable yield, the Commission
clains, is neither “rigid” nor “inflexible” to the extent that
any uncertainty as to the accuracy of the sustainable yield is
adequately addressed by the fact that any party may petition for,
or the Commission may on its own order, a hearing to show cause
as to why the permitted anounts of water should not be reduced.
KuI also argues that the sustainable yield is the appropriate
guidepost when allocating water from the Kualapu'u Aquifer. KM
points out that the sustainable yield was set by rulemaking
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procedure, and that any challenge to the accuracy of the
sustainable yield must be made via a petition to amend or modify
the sustainable yield pursuant to HRS § 174C-31(p). We agree
with the Commission and HMI that the Commission did not err by
relying on the sustainable yield determination.
The Commission is mandated by the Code to determine a
sustainable yield for each hydrological unit within the state.
See HRS § 174C-31(f) (2) (1993). The term, “sustainable yield,”
is defined by the Code as “the maximum rate at which water may be
withdravn fron a Water source without impairing the utility or
quality of the water source as determined by the commission.”
HRS § 174C-4 (1993). The Commission is instructed to calculate
the sustainable yield “using the best information available
HRS § 174C-31() (2). At the time of KMI's application, the
sustainable yield for the Kualepu' Aquifer was determined to be
5.0 nad.
As the Conmiseion and KMT suggest, the Code precludes
the ad hoc revision of the sustainable yield. The sustainable
yield figures are critical components of the state water plan,
see generally HRS § 174C~31, and may not be modified absent
notice and a public hearing, See HRS § 174-31(m) (1993) ("The
commission shall not adopt, approve, or modify any portion of the
Hawaii water plan which affects a county or any portion thereot
without first holding @ public hearing on the matter on the
island on which the water resources are located. At least ninety
gays in advance of such hearing, the commission shail notify the
affected county and shall give notice of such hearing by
publication within the affected region and statewide.”)
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Moreover, in Haiahole I, this court has impliedly endorsed
reference to sustainable yield determinations in the context of
ground water permit applications:
Early designation of instream flow standards furthers
several inportant objectives. First, it fulfills the Ca
Gury of protection under constitution and statut
Shetzean uses do not. suffer inadvertent ang needless inpaimen'
He alse preserves the integrity of the Commission's comprehensive
Planning function. If the Comission deciges instream flow
este tno wilt have ah Setahh
ses. Bs wen
eaedlate demande. See [dovgies W_ Macoougal,
ie Values Sfessonsble Benet Pot Heal
z te U. Haw. C. Rev. 1, €6 6 n. 302
(issei] (citing Unites stetee v. State Water Resources Control
Baa, 162 Cal. App. 34.82, 227 Cal. RptE. Jez, 160 (1966)).
Fintuly, initial designetion of instream flow standards relieves
the Commission, ae well ae existing and potential offstrean users,
of the complexity and uncertainty presented by the unsettled
Guestion cf instfeam flow requirenents. S2¢ id. [at] 56-55, 66.
Shoe the Connission tranelates the public interest in instream
flows into "a cereain and nanegeable quantity (, tJhe reference to
Consistency with the pablic interest in the definition of
Feascnable beneficial use likewise becones a reference to that
quantity.” Ids at 62
94 Hawai'i st 148-49, 9 P.3d at 460-61 (emphasis added) (sone
brackets added and some in original). Although the foregoing
excerpt expressly refers to surface water instream flow
standards, this court has analogized ground water sustainable
yield determinations to instream flow standards, See id, at 148,
9 P.3d at 460 ("The
recognized in its decision, that the Code contemplates the
provisions confirm what the Commission
instream flow standard as the surface water corollary to the
ground water sustainable yield.” (Quotation marks onitted.}).
hence, contrary to DHHL's assertions, it would be
inappropriate for the Commission to reevaluate the sustainable
yield figure in a permit application proceeding.
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b, DEEL’ s application to withdraw water
DHHL additionally asserts that the Comission’s
approval of Hill's request to divert water cannot be reconciled
with the Commission's refusal to grant DHHL's request for water
on the grounds that there were “very real concerns” over
sustaining the “potable quality” of the wells located in the
Kualapw'y Aquifer. Although the Conmission does not address this
point, KMI asserts that the Commission staff's reconmendation to
reject DHHL's application for additional pumpage was based upon
the fact that increased punpage in the two existing DHHL wells
would increase chloride content in not only DHHL's wells, but
also the County Department of Mater Supply's ("DNS") wells. The
Commission's staff recommended that increased withdrawals cone
from new wells located elsewhere in the aquifer. KMI now accuses
DIL of seeking to have KUI’s preexisting uses reduced so that
DHRL can obtain permits for new uses of water without incurring
the expenses of creating new wells in the Kualapu'u Aquifer.
For the following reasons, DHHL’s argument is without merit.
‘The Commission explained its treatment of DHHL's
application in its findings of fact, summarized as follows. DHHL
controls 25,383 acres of land on Molokai reserved for Hawaiian
homesteaders and services these areas with water drawn from two
wells located at a single site overlying the Kualapu's Aquifer.
DHHL previously obtained a permit to withdraw .367 mgd to serve
its Hoolehua and Kalamaula homestead areas. On September 13,
1996, DHL filed an application to increase its pumpage to 1.247
mgd. The Commission staff recommended the denial of DHHL's
application on the grounds that the geographic concentration of
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the DHHL, DS, and KI wells “militated against granting a permit
for the requested new withdrawals of .879 mgd from the existing
DHHL wells... .” The staff suggested that “such new
withdrawals from the Kualapuv aquifer should be from new wells
strategically located elsewhere within the aquifer so as not to
interfere with the water quality in the existing wells.
Specifically, the staff submittal cautioned that
[che] two OWN wells (WelL nos. 0801-02 6 02), the County
Department of Water Supply (OMS) well (Well no. 0801-03), and the
Kokol Molokai Well 17 (Weil no. 0901-01) all resid
half mile of each other. In terme of @ regional sea
Wells are concentrating punpage in one spot in the aquifer system.
Chicrige levels in the two ONL wells and the ‘ONS well are
Lensitive to pumping rates... Early low chloride readings
from those weilt were around 60 mg/l during the 1980's but hu
Hisen above 100 mg/l daring more recent years of the 1980's. On
Sccasion, chloride levels Rave reached 180 mg/1, The EPA
potability guideline for chloride is to 250 ng/i. ‘Therefore, the
Enereases in chloride levels in response to relatively small
increoses in punpage from this well fleld is an indication that
LScalized upcening and interference between these wells is
occurring:
At a January 28, 1998 public hearing, DHL proposed reducing its
request to .21 mgd, to be taken fron its 2.905 mgd reservation.
‘The Conmission requested that DHHL arrange for the United states
Geological Survey (“USGS”) to determine whether an approximate .2
rgd increase in punpage would cause chloride levels in the well
field to rise to “unacceptable levels.” DHHL thereafter informed
the Comission that the USGS was not able to ansver that
question, inasmuch as the USGS hydrological model was designed to
simulate regional draxdowns and could not predict local scale
upconing and drawdowns in the innediate vicinity of a particular
well, The Commission also found that chloride increases in one
of the DAHL wells was “in large part attributable to the
conmencenent of pumping in the (DNS well] in 1991, which raised
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the level of withdrawal from 0.367 to 0,867 mgd in the immediate
area.” DHEL asserts that its application now “languishes
unapproved” due to the Commission staff’s recommended denial of
its application."
Obviously, the Commission was concerned with the effect
of increased pumpage on the chloride content in the well field.
Hence, inasmuch as KMI's application to continue an existing use
did not threaten to increase pumpage, the Commission could
reasonably have granted KMI's request for existing uses and
denied DHHL’s request for new uses. Moreover, the Commission
correctly recognized that the Code contemplates a preference for
existing uses.? See HRS § 174C-49(a) (3) (1993) ("To obtain @
permit pursuant to this part, the applicant shall establish that
the proposed use of water . . . (wlil] not interfere with an
euisting use of water... .” (Emphasis added.)); Waiahole 1,
94 Hawai'i at 165 n.67, 9 P.3d at 478 n.67 (“[T]he Code gives
‘existing’ legal uses priority over ‘new’ uses in the permitting
Ke'olau Acric, Co., Ltd, v. Comm'n of iater Res.
Momt., 83 Hawai'i 484, 492, 927 P.2d 1367, 1375 (1996) (“Existing
process.”
uses are given preferences under the Code... .”). In
accordance with that preference, the Commission declined to
uproot a preexisting use in favor of a new use. Therefore, the
Commission's decision in that regard does not appear
+ tere is nothing in the record that indicates any further action
con DiL's application.
+ 4m its coL 424, the Commission stated that “[sJection 174C-50(4),
Rs, states that an existing use shall be given priority over any other
Spplication provided that the sge remains the same and 12 reasonable
beneficial ang water is available:
a
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unreasonable, arbitrary, or capricious.
‘The same cannot be said, however, for the Conmission’s
decision to permit KMI to withdraw 82,000 gd from the aquifer for
“new” uses. As mentioned, the Commission's staff recommended
that the Commission deny DHHL’s request for new, public uses on
the grounds that (1) the DHHL, DNS, and KMI wells “all reside
within one-half mile of each other(,]”" (2) the wells “are
concentrating pumpage in one spot in the aquifer system(,]” and
(3) “increases in chloride levels in response to relatively small
increases in pumpage from this well field is an indication that
localized upconing and interference between these wells is
occurring.” Inasmuch as KMI’s well is, per the Commission's
staff’s own recommendation, contributing to the concentrated
pumpage, we are compelled to wonder why the Commission did not
similarly toll KMI’s request for new uses. We do not suggest
that the Commission did not have a valid reason for its
conclusion or that the Commission was absolutely barred from
reaching its result. Rather, the Commission has simply failed to
explain the rationale behind the disparate treatment. Due to the
apparent contradiction, we remand the issue for additional
findings of fact and conclusions of law. “Clarity,” we have
said, “is all the more essential ‘in a case such as this where
the agency performs as a public trustee and is duty bound to
demonstrate that it has properly exercised the discretion vested
in it by the constitution and the statute.’” Waiahole II, 105
Hawai" at 11, 93 P.3d at 653 (citing Save Ourselves, Inc, v.
louisiana Envtl, Control Comm'n, 452 So.2d 1152, 1159-60 (La.
1964)). See also Waiahole I, 94 Hawai'i at 163, 9 P.3d at 475
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* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
("A reviewing court must judge the propriety of agency action
solely by the grounds invoked by the agency, and that basis must
be set forth with such clarity as to be understandable.”
(Quoting Louisiana=| 52 F.3d 255, 259
(9th Cir, 1995).) (Quotation marks omitted.)).
©. The Commission failed to consider the feasibility
of alternative sources of water.
DHHL further points out that the Commission failed to
provide any indication that it considered the feasibility or
practicability of alternative sources of water for KMI’s
requested uses.” The record confirms DHHL’s allegation, and
that omission requires us to vacate KMI’s permits.
This court has, on multiple occasions, expounded on the
necessity of considering alternative sources of water in
balancing the distribution of a scarce public trust resource.
In Waiahole I, the Estate of James Campbell (“Campbell
Estate”) was among various applicants before the Commission
requesting diversion of water from the Waiahole Ditch. 94
Hawai'i at 164, 9 P.3d at 476. The record indicated that
Campbell Estate already possessed permits to pump 35 mod of
ground water from beneath its lands to support its agricultural
Id, The record
purposes, but lacked proper pumping mechanism
also contained testimony that “it would require millions of
dollars to put infrastructure in place to pump water from the
Pearl Harbor aquifer wells to the Campbell Estate fields which
currently use Waiahole Ditch water." Id. at 164-65, 9 P.3d at
\ Neither the Commission ner KMI respond to this argunent in their
oppellate briefs.
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476-77. ‘The Commission expressed findings recognizing Campbell
Estate’s permits. Id. at 165, 9 P.3d at 477. The Commission
also made “various general findings on the effects of irrigation
on leeward aquifers, the costs of developing other alternative
sources, and future growth in water demand.” Id, The Commission
ultimately decided to conditionally approve the leeward
agricultural uses “[i]f and until treated effluent or ground
water is available(.]" Id, This court found the Commission’ s
decision to be unacceptable insofar as the Conmission’s findings
failed to “answer, with any reasonable degree of clarity, why it
As not practicable for Campbell Estate to use ground water
permitted to it and not otherwise in use as an alternative to
diverting the sole source of water for windward streams,
especially given the still unsettled state of instream flow
standards.” Id, Accordingly, we vacated Campbell Estate's
permit and remanded the matter for further proceedings. Id.
on remand, the Commission determined that Campbell
Estate had no practicable alternatives and issued Campbell Estate
a water use permit for 4.74 mgd. Waiahole II, 105 Hawai'i at 16,
93 P.3d at 658. On appeal before this court in Waiahole II,
appellants argued that Campbell Estate failed to meet its burden
of establishing that no practicable alternative sources of water
existed. Id, This court again found the Conmission’s analysis
deficient:
tn the instant case, the Mater Commission entered no FOF# oF CoLs
a5 to whether Canpoell Estate met ite burden. Instead, the Water
Geenieaion found, based on the testimony of Bert Hatten (Hatton),
S'conpell Estate witness, that “ontil che Supreme Court issued
ics decision in August 2000, Campbell Estate was assured of
Welahole Ditch water, so they did not conduct s systematic study
Ghalternative water sources. During the past € months, there
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FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
sn some informal and very genersi discussions about
igs if Diten water were no longer available.” D
Informal” and “very general discussions” are
Gnautticient to satiety Campbell Estate’ burden.
Id. We subsequently opined that “(t]he Water Commission’ s
analysis should have ceased when Campbell Estate failed to meet
its burden of establishing that no practicable alternative water
sources existed.” Id, We thus concluded that, “inasmuch as the
Water Commission entered no FOFs or COLs as to whether Campbell
Estate satisfied its burden of establishing that no practicable
alternatives existed, we renand the matter for further
proceedings relating thereto.” Id. at 17, 93 P.3d at 659.
Here, the Commission entered no FOFs or COLs as to the
existence or feasibility of any alternative sources of water
whatsoever, The Commission has thus failed to hold KMI to its
burden of denonstrating the absence of feasible alternative
sources of water. See Waiahole I, 94 Hawai'i at 161-62, 9 P.3d
at 473-74 ("Furthermore, besides advocating the social and
economic utility of their proposed uses, permit applicants must
also denonstrate the absence of practicable mitigating measures,
including the use of alternative water sources.”). "Such a
requirenent 42 intrinsic to the public trust, the statutory
instream use protection schene, and the definition of
‘reasonable-beneficial’ use, . . . and is an essential part of
any balancing between competing interests... ." Id. (footnote
and citations omitted).
Indeed, the Commission appears to have reserved
consideration of feasible alternative sources of water until
after the permit has been granted. In its decision and order,
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the Commission included, as a condition to the granting of KNI's
permits, the following contingency: “Within twenty-four months
of the date of issuance of the aforementioned permits, HMI will
prepare and present to the Commission = feasibility study on the
development of a new source of nonpotable water near Mahan which
can be blended to irrigate the golf course.” Such a practice is
fundamentally at odds with the Commission's public trust duties.
the feasibility of a new source of nonpotable water (1
alternative source of water) should have been considered prior to
the granting of KMI‘s permit, not after the fact. The Commission
cannot fairly balance conpeting interests in @ scarce public
trust resource if it renders its decision prior to evaluating the
availability of alternative sources of water. ‘Thus, KMI's
failure to demonstrate the absence of practicable alternatives
should have terminated the inguizy. See, g.ae, Waiahole Ii, 105
Hawai'i at 16, 93 P.3d at 658 (“The Water Commission's analysis
should have ceased when (the applicant} failed to meet its burden
of establishing that no practicable alternative water sources
existed.”)
For the foregoing reasons, we conclude that the
Commission has failed in its public trust duty to hold HMI to its
burden of denonstrating the absence of other practicable
alternatives. The Conmission has thereby failed to establish an
adequate basis for the amount of water allocated to KMI.
4. the Safe Mater Drinking Act
DHHL avers that the Conmission rejected, without
explanation, uncontroverted evidence that KMI was in violation of
the Safe Drinking Water Act ("SDWA”), codified as HRS chapter
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3408.
KNI initially responded that DNL waived the argument
inasmuch as the SOWA was not raised when the Commission and the
parties determined the issues for the proceedings below.
However, KMI only refers this court to a minute order in the
record stating that the parties were limited to the following
matters:
1. bo the existing and proposed uses of mater meet the
criteria for the issuance of « water use permit av provides in
Haw, Rev. Stat. §§ 174C=49(a) and 174C-S0(0) 7
2, Are the existing and proposed uses. reasoneble:
beneficial uses as defines in Haw: Rev. Stat. § 114C-3, and
sllowble under the coanon law of the State?
Are the existing and proposed uses consistent with the
public interest, including but not limited te, the statement of
policy objectives declared to be in the public interest as set
Forth in flaw, Rev. stat. § 174C-2(c}. Without limiting any other
factual public inerest issues that the parties deen relevant ae
the time, the parties shall address the quantified effect, if eny,
fof the well pumping ef ground water on stream flow and nearehore
4. Are the exteting and proposed uses allowable under the
common iaw of the State. mithout limiting any other relevant
factual issues that could be present hereunder, the parties shall
\Sdress whether any party has any appurtenant or riparian right
Under Haw. Rev, Stats § 174C-101, oF any ceher right to water that
is equal to or has priority over’ the exieting and proposed uses of
water by Applicants: the parties shall quantify the amount of
water they axe claiming.
5. In the event the above-referenced water use
application is not denied, the conditions, if any, that should be
imposed on the Applicants’ water permit for the existing and
Proposed water uses.
To the extent that DHEL argues that violations of the SDWA are
relevant to the question whether the requested existing and
proposed uses are reasonable-beneficial, see discussion infra,
the SDWA violations are fairly subsumed within the second issue
expressed by the Commission above, and the argument has not been
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waived.
HMI additionally asserts that any violations of the
SOWA were irrelevant insofar as (1) full compliance with the SOWA
is not @ prerequisite to obtaining a water use permit under the
Code, (2) the specific violation referred to by DHHL is with
respect to the treatment facility and does not compromise the
quality of water produced by that treatment facility, and (3)
factual evidence of compliance with state and federal regulations
was presented before the Commission. The record indicates that
the Department of Health (“DOH”) filed a "Notice and Finding of
Violation” against KMI, dated August 18, 1993. The DOH found, in
relevant part, that “[KMI] ha(d) been using the Kaluakoi water
system to supply water to the public, after June 29, 1993,
without £Litration that meets the criteria of HAR § 11-20-46(c)
or the Surface Water Treatment Rule ("SWTR”) Administrative
Nanual, as required by HAR § 11-20-46(a) (4).” DHHL submitted
proposed findings of fact describing the foregoing violation,
but the Commission, in its Decision and Order, rejected then
without explanation.
Despite evidence in the record that KMI failed to
comply with the SDWA, we hold that neither the Code nor the
public trust preclude the Commission from allocating water to KM
for the purpose of supplying water to domestic end users from a
delivery system that may not comply with the provisions of the
SOWA. It is clear that this jurisdiction separately regulates
water allocation, sae HRS chapter 174C, and drinking water
standards, see HRS chapter 340E. The Code and the SOWA do not
reference each other, and we can discern no legislative intent to
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make water use permit applications subject to compliance with the
SOWA, See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 964
(9th Cir, 2006) (rejecting the argument that granting a permit to
mine gold violated the water quality provisions of Nevada’s Clean
Water Act, in pertinent part, because “Nevada does not regulate
water withdrawal in the same [statutory] regime as water quality
Although DHHL asserts that the distribution of
potentially unsafe water to donestic users is neither reasonable,
beneficial, nor in the public interest, the public interest is
adequately protected by the enforcenent provisions of HRS chapter
340E. See HRS § 3408-8 (Supp. 1995) (authorizing civil and
criminal penalties). Violations of the SOWA are simply not
germane to a review of the propriety of water allocations under
the Code and the public trust
3. The Commission appears to have placed the burden of
root ‘chat pumpa: KMI"s wi
would increase the chloride concentration at the OHil.
uel] site.
DHHL also asserts that the Commission erred by placing
the burden of proof on DHHL to produce conclusive evidence of
harm to public trust resources. HHL specifically challenges the
Commission's COL #51, which states as follows:
Finally, DMML asserte that continuing the existing and permitting
the proposed uses would make st inpossible for Dail te ueilize see
fulll allocation in Rualapwo by increasing the chloride
Concentration levels. There was no conclusive evidence presented
(Emphasis added.) DHHL also continues to assert that the
Commission has, by granting KMI existing and proposed uses,
precluded DHHL from making full use of its reservation. DHHL
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claims that the Commission
allowed powerful private interests to complete their rush-to-
Ronopolize Rualapou water before DUHL could utilize its own
Teservations Ané, with cruel irony, at the same tine it was
Allowing MH to export water for its distant golf course in the
Geserts the Conmission staff recommended denial of Dili” » request
fo°bse' ite reserved water within the boundaries of the aquifer on
Concerns over the vitality of Hualapu's.
(Emphases omitted.)
The Commission, on the other hand, argues that it
correctly required KMI to justify its existing and proposed uses.
With respect to KMI’s existing uses, the Commission refers this
court to its COL #15, which states as follows: “Based on the
evidence presented, the Commission concludes that accountable
existing uses of water from Well 17 remain the same and the
allocation herein is reasonable and beneficial and allowable
under the common law.” As to KMI's proposed uses, the Commission
refers to its COLs Nos. 16, 17 and 18:
16. Section 174C-49(2), RS, places the burden on an applicant
fo establish that the proposed water uses meet all the
following seven criteria:
2. Can be accommodated with the available water source:
D. 1g a reasonable-beneficial use as defined in section
1040-3;
fc. WALL not interfere with any existing legal use of
d, Ts consistent with the public interest:
2, Is consistent with state and county generel plans and
Lend ‘use designations:
£, Te consiatent with county land use plans and polici
ana
4g. WALL not interfere with the rights of the department
Of Hawaiian hone lands as provided in section 221 of
the Hawaiian Homes Commission Act.
27, The applicant’ burden of proof is by @ preponderance of the
evicence. Section S1710(5), HRS.
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18. Based on the evidence presented, the Comission concludes,
for the reasons set forth below, that the water se permit
application for proposed uses, "as amended by this decision
and order, meets all the conditions in sections 14C"43(a),
RS, “by 8’ preponderance of the evidence
KMI additionally contends that the evidence in the
record suggests that increased chloride concentration in the D#iL
wells was caused by pumpage in the nearby Das well, and that the
impact of pumpage in KMI’s well on the DHHL wells was unknown:
in this case, the two existing DHAL wells, the DNS well, and
Applicant's well are all within one-half nile of each othe:
P"naeed thereon, it as found that an opconing effect. reaulted
4s "well punpage was concentrated around the tvo OWiL wells and the
bus"well' and that chiorige levels in these wells were sensitive to
Panpage rates. tio finding wae made that Well 17 was similarly
Sffected by increased well puspage.
We agree with DHKL that the Commission's COL #S1 is
cause for concern. Although the Commission found that the
increase in chloride concentration at the DHKL well site is, in
large part, caused by punpage in the nearby DWS well, it is
undisputed that KMI’s well is also in close proximity to the DAHL
and DWS wells and its impact on the DAHL wells is unknown. Under
these circumstances, rejecting DHHL's argument by simply stating
that “[t]here was no conclusive evidence presented that the
se the chloride
proposed punpage in Well 17 alone would iner
concentration to unacceptable levels at the DAHL wells,” gives
the impression that the Conmission improperly placed the burden
of proof on DEEL.
Wie do, however, recognize the Commission’ s predicament
when inconclusive allegations raise a specter of harm that cannot
be dispatched by readily available evidence. We note that in
such situations, the public trust doctrine does not handcuff the
Commission. Under the Code and the public trust, it is the
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applicant's burden to demonstrate that the use requested is
“reasonable-beneficial,” meaning “the use of water in such
quantity as is necessary for economic and efficient utilization,
for a purpose, and in a manner which is both reasonable and
consistent with the state and county land use plans and the
public interest.” HRS § 174C-3. Hence, to the extent that harm
to a public trust purpose (i.@,, the DHHL’s reservation) is
alleged, the permit applicant must demonstrate that there is, in
fact, no harm, or that any potential harm does not rise to a
level that would preclude a finding that the requested use is
nevertheless reasonable-beneficial. To that end, although the
present matter involves an allegation of harm that is not readily
ascertainable, the Conmission may nevertheless permit existing
and proposed diversions of water if KMI can demonstrate that such
diversions are reasonable-beneficial notwithstanding the
potential increase in chloride concentration at the DHHL well
site.
It may well be that the Commission believed that KMI’s
existing and proposed uses were reasonable-beneficial in spite of
the potential increase in chloride concentration at the DHHL
Wells, but the Commission did not say as much and merely
responded to DHHL’s concerns by pointing to a lack of “conclusive
evidence.” Therefore, we hold that the Commission should be
given the opportunity to clarify COL #51 on remand.
‘The Commission's decision did not violate the
precautionary principle.
DHHL next asserts that the Commission violated the
precautionary principle described by this court in Waiahole 1.
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DHL argues that the Conmission’s decision to grant KMI's permit
and reserve jurisdiction to amend it in the event of unexpected
and significant adverse impacts on DHiL’s wells “flies in the
face” of the foregoing principle. DHHL highlights the following
special condition imposed by the Conmission’s Decision and Order:
C. Because the sustainable yield of the Kuslapu'y Aquifer
system is close to full allocation, the issuance of both
permits ie subject to the following special conditions
1. If there are significent or unexpected increas
Chlorides ar drawdowne in the two OHML wells,
ell, oF MMI’s Well 1, substantially in
What’ they were on the effective date of designation,
Sny party may petition the Comission, oF
Conniasisn may on ite on motion, orders
bearing se fo why the peraitted snounts of withdrawal
of water should no be reduced along with lawful ang
equitable reductions in pumpage from other wells sn
‘the Rualapu'y Aquifer.
In Waiahole I, this court endorsed the Commission's
application of precautionary principles in recognition of the
lack of scientific certainty in the allocation of instream flows.
The Commission stated that, “where there are present or potential
threats of serious damage, lack of full scientific certainty
should not be a basis for postponing effective measures to
prevent environmental degradation.” 94 Hawai'i at 154, 9 P.3d at
466. We agreed with the Commission, confirming that, “at
minimum, the absence of firm scientific proof should not tie the
Commission's hands in adopting reasonable measures designed to
further the public interest.” Id, at 155, 9 P.3d at 467.
Here, the scientific uncertainty raised by DHAL is
whether the 5.0 mgd sustainable yield calculation for the
Kualapu'u Aquifer is accurate. However, as previously mentioned,
@ permit application proceeding is an inappropriate forum for
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reevaluating the sustainable yield calculation. Hence, it
would be inappropriate for this court, in an appeal of = permit
application proceeding, to nullity a sustainable yield
calculation.
Waiahole I, as applied to the case at bar, instructs
the Commission to faithfully apply the sustainable yield
determination. 94 Hawai'l at 148-49, 9 P.3d at 460-61. Having
Gone so, the Commission did not simply ignore DHHL’s concerns
that the sustainable yield figure does not account for localized
upconing and drawdown effects. Rather, the Commission further
reserved jurisdiction to modify KMI’s permits in the event of
“significant or unexpected increases in chlorides or drawdowns in
the two DHHL wells, the DWS well, or KMI’s Well 17, substantially
in excess of what they were on the effective date of
designation.” Under the circumstances presented, the
Conmission’s methodology constitutes a faithful application of
the sustainable yield figure and includes reasonable
precautionary measures. We have said that
the Commission may make reasonable precautionary presumptions or
allowances in the public interest. The Commission may still act
nen public benefits and risks are not capable of exact
Guantification. At all tines, however, the Comission should not
Ride benina scientific uncertainty, but should confront it a3
Systematically and judiciossly a8 poseible--considering every
CListream ose sn view cf the Cumlstive povential harm to instream
es ond values” and the need for neaningfui stedles of stream flow
Feguizenents, ss.
‘evs practical matter, the Commission may decide that the
foregoing balance supports postponing certain uses, or holding
then'co's higher stanoard of proof, pending nore conclusive
evidence of instream flow requirenents. Even if it
Etntatively decides to allow certain offeirean uses to proce
' pil may challenge the sustaineble yield in an appropriaty
independent proceeding, and the Comission’s ruling may give rise to an
appeal. However, a8 i¢ stands, that issue is not before this court
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the Conmissicn may still subject the uses to permit conditions
Gesigned to protect the public interest, Saa"ane § 194e-310)
Atte very legek. the Comission should, asvit did in this case,
Ssluitlon beraite ae aa te contise ite const Teutional and
5 Sahar
inter determine that present insisean floes ars inadequate.
Ids at 159-60, 9 P.3d at 471-72 (emphasis added); cf. Wai‘ola,
103 Hawai'i at 444, 83 P.3d at 707 ("(T]he Commission did not
abuse its discretion in imposing a well monitoring system as 2
condition to granting MR-Wai'ola a water use permit in the
present matter and utilizing the Kakalahale well for such
purpose.”) -
5. The Comission erred by considering an untimely
application.
DHHL next argues that the Commission violated HRS
§ 174C-80(c) by considering an untimely existing use application.
HRS § 174C-50(c) provides as follows:
An application for a permit to continue an existing use must be
ade within a period Of one year from the effective date of
Gesignation [of the water management Except for
Sppurtenent rights, failure to apply withia this period creates a
presumption of abandonment of the use, and the user, if the User
Sesizea to revive the use, must apply’ for a permit under section
$Vie-si. “z4°the conméssicn determines that there 42 just cause
for the failure to file, it may allow a late filing, Nowever, the
Conmissicn may not allow 2 late filing more than five years after
the effective date of rules implementing this chapter
DHHL contends that the Water Commission designated the island of
Moloka'i as a water management area effective July 15, 1992, and
that existing use permit applications were due by July 15, 1999.
DilHL concludes that KMI’s application, filed on Decenber 15,
1993, could not be considered as an existing use application
inasmuch as (1) the application was not a legitimate amendment to
an earlier timely application, and (2) the untimely application
the just cause
could not be excused for just cause becau:
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exception ceased to be available on May 27, 1993."
WOT and the Commission do not contest DHAL's assertion
that late filing was statutorily precluded after May 27, 1993.
Rather, they contend that the December 15, 1993 application was
an anendnent to an earlier application filed by Moloka'i Ranch,
Kaluakoi Moloks'i, and Moloka'i Irgigation System on June 8, 1993.
A similar situation was presented in Waiahole I.
Therein, the Commission granted Pu'u Makakilo, Inc. ("PMI") a .75
ngd water use permit. Id. at 165, 9 P.3d at 477. In doing so,
the Commission treated PMI’s requested uses as “new,” rather than
“existing,” apparently because PMI’s application to continue
existing uses was not timely filed. id, The Conmission
designated the windward aquifers as ground water managenent areas
effective July 15, 1992. Id, at 166, 9 P.3d at 478. On dune 3,
1993, Waiahole Irrigation Company ("WIC"), the former operator of
the Waiahole ditch, filed a joint use permit application that did
not mention PMI. Id. On June 14, 1994, WIC filed an amended
joint use permit application that referred to PMI in attached
exhibits but did not designate PMI as an applicant. Id, PMI was
not named as an applicant until a subsequent amendment was filed
on October 24, 1994, Id, None of the applications characterized
SpBiL, zelies on Haiahole I for ste conclusion that late filings
could not be accommodated after May 27, 1993, Indeed, we stated as follows:
HRS § 174C-50(c) allows, the Commission to accept late
flings based on “just cause,” but precludes the Comission from
accepting ipplications more than five years after the
effective date of rules inplenenting this chapter.” The
Conmission promulgates the rules inplenenting the Code
1988 and, thus, could not accept any late applications
2, 1383.
n tay 27,
cer May"
9 Hawai's at 166, 9 P.3d at 478
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PMI's requested uses as “existing.” Id. Although PMI asserted
that it did not acquize title to the property in question until
Novenber 21, 1994, and that the initial failure to identity PMI
as an applicant was an “oversight,” this court stated that
“[those) exigencies [did] not compel the Commission to ignore the
express statutory deadline for existing use permit applications.”
Ide
In the case at bar, the Commission should have strictly
applied the statutory deadline for existing use permit
applications as it did in Wajahole I. Here, Moloka'i was
designated a water management area effective July 15, 1992.
Pursuant to HRS § 174C-50(c), existing use applications were due
by July 1, 1993. On June &, 1993, a timely application was
filed requesting permission to withdraw ten percent of the total
pumpage fron Well #17. The application identified Moloka'i Ranch
as the landowner, and Kaluakoi Moloka'i and Moloka'i Irrigation
System were identified as the applicants. KMI was not mentioned.
WT obtained title to the land overlying Well #17 on October 19,
1993. HHT then submitted its own application on December 15,
1993, The application identified KMI as the landowner and sole
applicant, We hold that these circumstances are sufficiently
analogous to the facts presented in Waiahole I, such that
Waiahole I's strict application of the statutory deadline
controls. In Waiahole I, despite the fact that the timely filed
application was eventually amended to incorporate PMI’s requested
uses, this court approved the Conmission’s conclusion that PMI’s
application for existing uses was untimely. Consequently, even
assuming, arquendo, that KMI's application constituted a
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legitimate amendment of the timely application filed by Moloka's
Ranch, Kaluakei Moloka'i, and Moloks'i Irrigation System, Waiahole
I denonstrates that such an amendment will not preserve a party's
existing uses if that party is not identified as an applicant for
existing uses in the application filed within the statutory one-
year deadline.
In Light of the foregoing, DHHL is correct that the
Commission erred by considering KMI’s untimely request for
existing uses. Therefore, we vacate the Commission's Decision
and Order to the extent that it grants KMI a permit for existing
uses. If, on remand, KMI wishes to “revive” these expired uses,
ie must apply for a permit under HS § 174C-$1 as the uses are
now presumed abandoned. See HRS § 174C-50(c)
6. HOM requested both existing and new uses.
DIL also argues that despite checking the box for
“existing & new uses” in its application, KMI represented at the
contested case hearing that it was requesting only existing uses.
Based upon KMI's repeated representations at the hearing, DHHL
asserts that KMI waived any request for new uses. DHHL further
contends that the Comission expressly recognized in its Decision
and Order that KMI’s application was for existing uses, but went
ahead and granted a permit for proposed uses. DMHL avers that
the Commission thereby abused its discretion and violated
established practice, its own adninistrative rules, and
principles of procedural due process.
KNI and the Commission, on the other hand, claim that
fait’s application clearly indicated that the application was for
existing and new uses, inasmuch as the box labeled “existing &
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new uses” was checked.
Preliminarily, we note that the parties do not dispute
that the Commission has the authority to consider requests for
existing and new uses in the sane contested case hearing.
Indeed, HRS § 174C-51 (Supp. 1992) states that “[t]he Commission
in its discretion may allow a person to apply for several related
withdrawals in the same application for a water permit.
Rather, DHHL focuses on (1) the allegedly inconsistent
representation of KMI’s vice president, Ben Neeley ("Neeley"),
and (2) the Conmission's statement, in COL #7, that KMI’s request
was for existing uses.
With respect to its first subargunent, DHL refers this
court to a transcript of proceedings held on November 24, 1998,
wherein Neeley stated that KMI's application was only for
existing uses in the amount of 1.244 mgd. However, Neeley’s
t for new
statement, fairly viewed, did not vaive KNI’s requ
uses. The transcript adequately reveals KMI’s position:
A The applicetion says 2 million gallons and we've changed it
2 0 you've changed the application?
A Welly what we're applying for is 1.25. That's the way it's
stated in the briefs and everything else.
e So T understand your testimony your application is for
i244 for uses identified on the exhibit in the anounte
Ldentstied on the exnibic, 2 that correct?
° =. Now, if your spplication is limited to uses and
Amounts on the exhibit, then at you said, any representation
for an application in excess of 1.244 isin error, is that
correct?
A Yes, we're applying for the 1.21
© So'uhen KUT applied for 2 million in ite initial application
of 2miiiion gallons per day, in ite amended application.
that was an error?
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[COUNSEL FOR 10H]: I object. Objection, Tt's
argumentative. Reasons are stated in the opening brief. I stand
By ay cbjection, Re have stated in our opening Drief quite simply
that you know, wevdon't agree that we don't have the right to-?
million as on existine use.
However, for purposes of this contested case hearing
in large part because we Unserstand that. puaping out more than
‘ehat our historical punpage would be is 2 problem given the
proxinity of the wells, we can’t punp more from that well
7 ‘ie understand that's a concern for the Kater
commission. “That for cur opening brief and for pursoses of this
contested case hearing we have Limited ourselves to requesting as
‘Snsxisting use the tance of 1283 to-Lez4d-- how often dot have
fo-say that?
HEARINGS OFFICER ADLER: I understand what your
application is for, I believe. And we know there have been many
Gifterent noving averages in the life of this application. You've.
cent ified what ie the water that vou sre seeking, You ack ther
be under an existing use. And 1-presune that inthe
Seige new use, Je that correct?
TeobwsEL FOR Rl]: I that’s the only way we're coing
jet it, eure, a 1
searecoing to say it's a new use.
(Emphases added.) Clearly, it was KMI’s position that it was
entitled to an allocation of 2.0 mgd of water for existing uses.
However, it acknowledged the Commission's concern regarding the
effects of pumpage from Well #17 on other wells in close
proximity, and voluntarily limited its request to 1.259 to 1.244
mgd of water. HMI consistently asserted that its request was for
existing uses, but it asked, in the alternative, that the
Commission award the requested uses as new uses if it could not
satisfactorily establish them as existing at the time of
designation.
Under these circumstances, we cannot say that Mr.
Neeley’s statements advocating KMI's primary position constituted
a voluntary or intentional abandonment of KMI’s alternative
position. See generally Enoka v. AIG Hawaii Ins, Co., Inc., 109
Hawad's $37, 585 n.18, 128 P.3d 850, 868 n.18 (2006); Fireman's
Fund Ins, Co, v. AIG Hawaii Ins, Cou, Inc, 109 Hawai'i 343, 354,
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126 P.34 386, 397 (2006).
[As mentioned, DHHL also contends that the Commission
expressly recognized that KMI's application was for existing
uses. DHHL specifically refers to the Commission’s COL 47, which
states that “[t}he application is for an Existing Use Permit
issued under section 174C-50(b), HRS.” DHHL argues that the
Commission nevertheless included a section entitled, “application
for Proposed Water Use Permit,” in which it evaluated KMI's
request for new uses under HRS § 174C~49(a). Contrary to DHHL's
assertions, however, the Commission's approach vas consistent
with the views it expressed in the aforequoted portion of the
transcript of proceedings. To wit, the Commission understood
KMI’s azgunent to be that (1) it was entitled to 1.244 to 1.259
ngd of water for uses existing at the time of the designation of
Molcks'i as a water management area, and (2) if it failed to
establish that all of the water requested was for existing uses,
then it desired an award of whatever remained as new uses.
Hence, it was not inconsistent for the Commission to recognize
that KMI requested existing uses in COL #7 and subsequently grant
new uses in accordance with KNI’s alternative argument.
For these reasons, the argunents presented by DHHL are
without merit.
7. Whether the Commission lacked authority to allocate
Se En
DRHL’s final point of error asserts that the Commission
lacked authority to allocate water to KMI for existing uses not
claimed in its application, DHHL essentially claims that KMI‘s
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failure to include certain other existing uses in its application
constituted an abandonment of those uses, and as such, the
Commission violated HRS § 174C-S0(c) when it allocated water to
these excess uses. As discussed, supra, because we vacate the
Commission's Decision and Order to the extent that it grants KMI
a permit for existing uses, and, upon remand, hold that KMI must
apply for a permit under HRS § 174C-51 to “revive” its expired
uses pursuant to HRS § 174C-50(c), resolution of this point of
error is unnecessary.
B. OHA’s Remaining Points Of Error
1. 4c! water
from well #7.
OA asserts that the Commission erred when it concluded
that KNI had correlative rights to make reasonable use of the
water. The Commission, however, contends that this court
continues to recognize the correlative rights rule articulated in
City Mill Co. v. Honolulu Sewer and Water Commission, 30 Haw. 912
(Haw. Terr. 1929).
‘This court addressed the applicability of the common
law rules governing correlative rights in Wai‘ola, 103 Hawai'i at
447, 83 P.3d at 710. Therein, we determined that “[{]nasmuch as
the entire island of Moloka‘i has been designated a [water
management area], the conmon law doctrine of correlative rights
is inapplicable to the present matter.” Id. at 449, 83 P.3d at
711, Accordingly, the Commission erred when it relied on city
Mill for the proposition that “KMI has correlative rights to make
reasonable use of the water with due regard to the rights of
other co-owners in the sane waters and subject to regulation by
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the government.”
Instead, KMI's transport of water is contingent on its
satisfaction of the statutory requirements enumerated in HRS §
174c~49(c) (1993). See dda at 449, 83 P.3d at 712. HRS § 174C~
49(c) provide:
‘the conson lax of the State notwithstanding, the commission shail
Ground nacer beyond overlying lend of outside the wateruned fon
Ghich itis taken {tthe ceamlasion determines that such
Transportation and use are consistent with the public interest and
the general plana end Land ase policies of the State and countles-
In Mal'ola, this court determined that even though “the
Commission did not expressly invoke HRS § 174C-49(c) . . . [it]
nevertheless made the necessary findings in the context of
determining that MR-Wai‘ola’s application satisfied the
conditions prescribed by HRS $§ 174C-49(a) (4), (5), and (6)."
103 Hawai'i at 449, 83 P.3d at 712. Me stated that the
Conmission’s “favorabl{e] consider|ation] of the impact of the
proposed use on Molokai’s econony and natural environment” was
sufficient for the Commission to find that the “proposed use was
consistent with the public interest, as required by HRS § 174C~
49(ay (4) de
OHA contends that KMI did not prove that its
traneportation and use are consistent with the public interest
because it failed to demonstrate that its uses met the
requirenents of the Safe Drinking Water Act, as argued by DHHL.
HRS $5 174-432) (4), (5), and (6) recite the following
requirenente: "(a) To obtain a permit pursuant to this part, the applicant
Shall establish that the proposed use of water: . .. (é) i3’consistent with
the public interest) (5) Ia consistent with state and county general plane snd
[end'use designations; (6) I consistent with county land use plans ond
policies."
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However, as discussed, supra, the SDWA and the Code are two
@istinctly separate laws. Therefore, we cannot say that
satisfying the requirements of one also satisfies the
requirenents of the other.
As in Wai‘ola, the Commission in the instant case
considered the impact that KMI’s use would have on Molokai’s
economy and the environment. OHA does not contend that the
Commission’s findings in that regard are clearly erroneous.
Moreover, OHA does not contend that the Commission erred when it
found and concluded that KMI’s uses are consistent with state and
county general plans and land use designations, see HRS § 174C-
49(a) (5), as well as county land use plans and policies. See HRS
§ 174c~49(a) (6); Consistent with Wai‘ola, “the Commission’s FOF
with respect to HRS §§ 174C-49(a) (4), (5), and (6) establish the
findings as set forth in HRS § 174C-49(c), requisite to allowing”
KMI to transport and use water from Well #17, which overlies the
Kualapu'u Aquifier system. See Mai‘ola, 103 Hawai'i at 449, 63
P.3d at 712.
2 i
impact that the cli
would have on its allocation of water to KMI.
OHA and Caparida and Kuahuia contend that the
Commission erred when it refused to consider the impact that the
closing of HMI’s hotel and golf course would have on KMI’s water
use. They assert that a hotel and golf course that has been
closed for many months with no announced reopening date does not
present 2 reasonable-beneficial use under HRS $ 174C-49, and as
defined in HRS § 174¢-3.
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OO
‘The Commission asserts that its decision to refuse to
consider the evidence was proper in that the contested case
hearing was held to determine KMI’s past water usage from the
date of July 15, 1992, rather than at the time of the hearing.
Both KI and the Commission urge that the Commission did not err
because HRS $§ 174C-58(4)" and 174C-50(e)* (1993) permit KMT
four years to fulfill its proposed uses before the Commission may
suspend or revoke a permit.
In Wai'cla, we agreed with the Commission that HRS §
174C-58(4) “constitutes an enforcement, rather than a planning,
tool.” Was'ola, 103 Hawai'i at 446, 83 P.3d at 709. Accordingly,
wwe interpret HRS § 174C-56(4) as an enforcement mechanism by
which the Commission may suspend or revoke a water use permit
upon knowledge that a permitted allocation of water, which the
Commission has expected to be used within a four-year time frane,
has not been utilized.” Id. (emphasis in original).
‘The Commission in the instant case authorized 871,420
Mung § 174-58(4) provides, in its entirety:
(4) fartial or total nonuse, for reasons other than
conservation, of the water allowed by the permit for a period of
four continuous years or more, The commission may permanently
evoke the permit as to the sfount of water not in use unless the
liner can prove that the User"s nonuse was doe to extreme hardship
Geused by! factors beyond the user's control.” The commission and
the permittee may enter into a written agreement that, for reasons
Satisfactory te the commission, any period of honuse may not apply
tGnarde the four-year revocation period. Any perieg of nonuse’
whieh is caused by a declaration of water shortage pursuant to
Section 174¢-62 shell not apply towards the four-year period of
forfeiture.
provides that "[tihe commission shall issue an
interim permit; provided that the existing use meets the conditions of
Subsection (b). Interim persits are subject to revocation under section
inacese.”
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gd to be allocated to KMI as an interim existing use. This
amount was based on the following “estimates of usage”: (1)
100,000 gd allocated to the hotel, and (2) 475,600 gd allocated
to the golf course.
In its final Decision and Order, the Commission issued
KUL a water use permit, authorizing it to “withdraw[] and [make]
reasonable-beneficial use of” 936,000 od from Well #17 as an
existing use pursuant to HRS § 174C-50, and 82,000 gd from the
same well as @ proposed use pursuant to HRS § 174C-49. Of the
936,000 gd authorized as an existing use, 64,000 gd was allocated
to the hotel, while 379,000 gd was allocated to the golf course.
Of the 82,000 od authorized as a proposed use, 3,000 gd was
allocated to the hotel, while 21,000 gd was allocated to the golf
course. We can discern no reasoning in the Commission’s findings
and conclusions to suggest that it took into consideration
whether and to what extent the closing of the hotel and golf
course had on its proposed use allocation decision. Indeed, the
Conmission’s position appears to be that it need not consider
this information because HRS § 174C-58(4) was “designed to
provide water use permittees with flexibility in managing their
operations.”
caparida and Kuahuia contend that HMI is required to
demonstrate whether and to what extent the closure of the hotel
and golf course has on its existing use application. However, as
discussed, supra, because we vacate the Commission’s Decision and
order to the extent that it grants HMI a permit for existing
uses, and, upon remand, hold that KMI must apply for a permit
under HRS § 174C-51 to “revive its expired uses, resolution of
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this issue is unnecessary.
OA contends that the Conmission’s and KMI’s reliance
on HRS § 174C-58(4) is misplaced, inasmuch as KMI has the burden
of establishing that its “proposed use” of water under HRS §
174¢-49 is a “reasonable-beneficial use” as defined in HRS §
174¢-3. To reiterate, HRS § 174C-3 defines a “reasonable~
beneficial use” as “the use of water in such a quantity as is
necessary for economic and efficient utilization, for a purpose,
‘and in @ manner which is both reasonable and consistent with the
state and county land use plans and the public interest.” OHA
emphasizes that the closure of the hotel and golf course does not
present a “purpose” that requires an allocation of water that is
wnecessary for economic and efficient utilization.”
This court has stated that “the Commission must not
relegate itself to the role of a mere ‘umpire passively calling
balls and strikes for adversaries appearing before it,’ but
instead must take the initiative in considering, protecting, and
advancing public rights in the resource at every stage of the
planning and decisionmaking process.” Waiahole II, 105 Hawai'i
at 16, 93 P.3d at 658 (quoting Waiahole I, 94 Hawai'i at 143, 9
P.3d at 455) (block format omitted). In this regard, the
commission must “prescribe @ higher level of scrutiny for private
commercial uses . . . . In practical terms, this means that the
burden ultimately lies with those seeking or approving such uses
to justify them in light of the purposes protected by the
[public] trust.” MNaiahole 7, 94 Hawai'i at 142, 9 P.3d at 454
(footnote, citations, and quotation marks omitted). Moreover,
‘the public trust compels the state duly to consider the cumulative
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impact of existing and pr
fo implement reasonable
josed diversions on trust purposes and
sures to mitigate this impact,
including Using alternative sources Yocum, the state may
Sompromise public richts in the resource sursuant only toa
Secision nage witha level of openness, diligence and foreeiant
Sommensurate with the hich priority these cients cOuand onder the
Tnws-of our-atate.
Haiahole I, 105 Hawai'i at 16, 93 P.3d at 658 (quoting Waiahole
I, 94 Hawai'i at 143, 9 P.3d at 455) (emphasis in original).
In this connection, we cannot say that the closure of
the hotel and golf course would have no impact on KMI’s proposed
uses in light of the Commission's findings and conclusions
pursuant to the “reasonable-beneficial use” standard as set forth
in HRS § 1740-49 and defined in HRS § 174C-3. Accordingly, the
Commission's and KMI’s reliance on HRS § 174C-58(4) is misplaced.
Because the Commission failed to consider whether and to what
extent the closure of the hotel and golf course would have on
kos proposed uses when it made its proposed use allocation
decision, we vacate the Conmission’s Decision and Order to the
extent that it grants KMI a permit for proposed uses, and remand
the matter for further proceedings.
3. QUAYS final point of error 1s disteaarded pursuant to
Seg SP lea oe er) ake Dacia ae CERT Ee
OHA asserts that Yvonne Y. Izu, Esq.'s “representation”
of the Commission in her capacity as a deputy attorney general
when the Commission was preparing its final Decision and ord
presented a conflict of interest, because her former client wa
in the process of purchasing the applicant in the instant case.
However, OHA fails to point, in either its points of error or
axgunent section of its opening brief, to where in the record it
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suggests that a conflict of interest occurred.
RAP Rule 28(b) (4) requires that
(elach point [of error] shall state: (i) the alleged error
connitted by the court or agency: (it) ahere in the record che
alleges error accursed; and (iii) where sn the Fecord the alzeged
Stror was cbjecred to or the manner in which the alleged error was
Brought to the attention of the court oF agency,
(Emphasis added.) HRAP Rule 28(b) (7) further requires that the
appellant’s opening brief shall contain “[t]he argument,
containing the contentions of the appellant on the points
presented and the reasons therefor, with citations to the
authorities, statutes and parte of the record relied on.”
(Emphasis added.)
Because OHA fails to indicate to where in the record
ite factual assertions are supported, this point of error is
disregarded. See HRAP Rule 28(b) (4) ("Points not presented in
accordance with this section will be disregarded, except that the
appellate court at its option, may notice a plain error not
presented."); HRAP Rule 26(b)(7) ("Points not argued may be
deemed waived.”); Sprague v. Cal. Pac. Bankers @ Ins. Ltd., 102
Hawai'i 189, 195, 74 P.3d 12, 18 (2003) (“It is within the
appellate court's discretion whether to recognize points not
presented in accordance with HRAP 28(b) (4).”)
©. Caparida’s and Kuahuia’s Remaining Points Of Error
fo WBS § 174C=' .
1
The Commission issued an interim water use permit to
WUT on March 14, 1995. As a preliminary issue, Caparida and
Kuahuia contend that HRS § 174C-50(g) applies and that the
Commission's December 19, 2001 decision and order constituted the
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aoaooo_l_oranaeesree eo
“£inal determination” as described in the statute." They assert
that because the “final determination” was made beyond the
mandated five-year time limit, the Commission was required to
evaluate KMI's existing use application as a proposed use under
HAS § 174C-49(a),"” rather than as an existing use under HRS §
174c-50(b) ."" However, KM and the Commission assert that the
HRS § 174C-50(g) Provides, in its entirety:
(g) Tf an interim permit is issued pending verification of the
dStual quantity of water being consumed under the existing se,
fine! eeteraination of that quantity shall be made within five
Yours of the filing of the application to continue the existing
User" Gh the final determination, the commission may increase oF
Teduce the snount initially granted the permittee.
HRS § 174C-49(a) provides, in its entirety:
(a) To obtain a permit pursuant to this part, the applicant shall
SSLaE1sSh thee" she proposed use of water:
(G) Gan be accommodated with the
(2) fsa reasonable-beneficial u
piroen
(2) Will not interfere with any existing legal use of watery
(2) Te consistent with the public interests
(3) 1s consistent with atate and county general plans and
land use Gesignetions:
(é) 1s consistent with county land use plans and policies;
and
(3) WiLL not interfere with the right
fowatian home lands as provided in
Heuaisan Homes Comission Act.
wvailable water source:
8 defined in section
of the department of
fetlon 221 of the
RS § 174C-50(B) provides, in its entirety:
(b) After publication aa provided in section 174c-52, the
comission shall issue 2 perait for the continuation of ¢ use in
Guistence on July 1, 1967; if the exiteria in subsection (a) are
Ret sng the existing use ie reasonable and beneficial.
Whether the existing Use ia a rearoneble-beneficial use and
is ellousble under the common law of the State shall be determined
by the commission after a hearing provided that the commission
Biy‘hexe such a determination without a nearing, if the quantity
fiwater applied for does not exceed an snount per month
ataslished by rule or if the quantity of water applied for
Skeeeds an andunt per month established by rule, but no objection
{o°the epplication ia filed by any person having standing to file
5h Gblection. dn determining whether an application does not
(Continued...)
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statute's absence of consequences for failing to comply with the
time requirement should be construed as requiring neither a
denial of KMI’s application, nor different statutory criteria to
be applied to the application after the five-year deadline.
As discussed, supra, because we vacate the Commission’ s
Decision and Order to the extent that it grants KMI a permit for
existing uses, and, upon remand, hold that KMI must apply for a
permit under HRS § 174C-51 to “revive” its expired uses,
resolution of this point of error is unnecessary:
2. ission i sibly shifted the burden of
‘proving harm from KMI to Caparida and Kuahuia.
rt that the Commission err
Caparida and Kuahuia as:
because it impermissibly shifted the burden of proving harm to
those claiming a right to exercise a traditional and customary
native Hawaiian practice. K¥I asserts that it satisfied its
burden of proof through the testimony of its expert witnesses.
The Commission entered, based on this testimony, the following
FOF No. 163:
Aetuning a1 other things being constant, if there is no increase
in the amount of water being punped by Well 17, there will be no
Gecrease in the amount of water that discharges into the marine
Guvironsent as # result of the continued punpage of Well 17 at
Status quo levels. Hence, there would be ne impact on the marine
environment a9 it now exists az a result of Hil'a continued
Bumpage of Well 17 s© status quo Levels.
Article XII, section 7 of the Hawai'i Constitution
provide:
The State reaffirms and shall protect all rights, customarily and
traditionally exereised for subsistence, coleursl and religicus
cont inued)
excead the snount per month established by rule, the comission
Shall consider an sverage of water use over the three-month period
Imediately preceding the filing of the application,
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Eutive fawolinne she inhabited. the Wewaiian Telands price to 177,
abject to the right of she State to regulate such rights.
The protection of traditional and customary native
Hawaiian rights is also provided for in the Code under HRS §§
174C-2(c) and 174¢-101(c) and (4) (1993)."" Additionally, this
court has upheld “the exercise of Native Hawaiian and traditional
and customary rights as a public trust purpose.” Majahole I, 94
Hawai'i at 137, 9 P.3d at 449 (citing Haw. Const. art. XII, $77
Public Access Shoreline Hawai'i v, County Planning Commission
(“PASH”), 79 Hawai'i 425, 903 P.2d 1246 (1995), cert. denied, 517
U.S. 1163 (1996); Kalipi v, Hawaiian Trust Co., 66 Haw. 1, 656
P.2d 745 (1982). Although “the state water resources trust
acknowledges that private use for economic development may
uns § 274c-2(e) provides, in its entirety!
(©) The state water code shall be Liberally interpreted to
obtain maximum beneficisl use of the waters of the Seate for
Porpones such as domestic uses, aquaculture uses, irrigation and
Sther agricultural uses, power development, and Connereial. and
Sndustrsal uses. However, adequate provision shell be made for
the protection of traditional and customary Hawaiian rights, the
protection and procreation of fish and wildlife, the maintenance
bf proper ecslogical balance and scenic vaes, public recreation,
public water supply, agriculture, and navigation. Such ebjectives
Ste deciared to be in the public interest.
HRS § 174C-101(c} and (a) provides, in its entirety
{c) Traditional and customary rights of ahupua's tenants who
are descendants of native Hawailans who inhabited the Hewal len
‘elands price to 1772 shail not be abridged or denies by this
chapter. Such traditional and custonary rights shall include, but
not be limited to, the cultivation of propogetion of tare on one’s
Own kuleana and the gathering of hihiwal, opse, copy, Lima,
thateh, ti leat, aho cord, ond medicinal plants for subsistence,
cultural, and religious purposes.
{a} The appurtenant water rights of kuleana and taro land
along with those traditional and customary rights assured in his
fection, shall not be dininished or extinguished by s failure to
apply for or to receive a perait under this chapter.
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produce important public benefits and that such benefits must
figure into any balancing of competing interests in water, it
stops short of enbracing private conmercial use as a protected
trust purpose.” Id, at 138, 9 P.3d at 450. Therefore, to the
extent that “the public trust . . . establishes use consistent
with trust purposes as the norm or ‘default’ condition, . . . it
effectively prescribes a ‘higher level of scrutiny’ for private
commercial uses.” Id, at 142, 9 P.3d at 454 (footnote omitted).
In thie regard, “the burden ultimately lies with those seeking or
approving such uses to justify them in light of the purposes
protected by the trust.” Id.
The Commission found and concluded in its Decision and
order that “(t]he gathering of crab, fish, limu, and octopus are
traditional and customary practices that have persisted on
Moloka‘i for generations.” The population of the island of
Moloka'i consists primarily of Hawaiians, many of whom “rely on
the natural resources of the land and ocean{]” for such
“subsistence activities” that include “gathering of marine
resources including fish, shellfish, ‘ula, he'e and lim to feed
their ‘ohana (extended fanily).”
The Commission also found and concluded that
groundwater is a source of nutrients for such plants as the limu,
and fresh water is a “necessary and integral part of the live
food pyramid” for certain fish species that feed on
phytoplankton. Additionally, there are springs located
throughout the shoreline that “create a nursery habitat of
indeterminate size.” However, the Commission concluded that it
“is impossible to determine what the precise effect will be if
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the freshwater is reduced by a certain amount, because you don’t
know which springs the reduction is going to affect{,]" and “it
is difficult to determine the exact percentage of freshwater
required to create and maintain a viable and healthy nursery
habitat.” Possibly, “(s]mall nursery habitats may spring up
wherever freshwater comes up fron the ground, and collectively
form a lazge nursery habitat.”
Caparida and Kuahuia contended before the Commission,
as they do here, that a reduction of marine life, if severe
enough, will diminish their ability to practice their traditional
and customary native Hawaiian gathering rights even if access is
not impaired by KMI’s proposed use. In response, however, the
Conmission merely observed that the “(potential adverse impacts
of the current level of ground water pumpage on the ground water
flux at the coastline in support of [the] natural habitat should
already be visible.” As such, the “[e]vidence does not show that
nearshore resources are in decline, that ground water flux has
changed over the course of historic pumpage, or that any such
change should be considered anything more than one of a number of
potentially causative factors if the biological resources do
indeed decline.” Indeed, in its COL #40, the Commission
concluded that
no evidence was presented that the use of water from Well 17 would
Sdversely affect the exercise of traditional and custonary native
Havelian rights. Nor does the Comission conclude that any
Gvidence was presented that the existing or proposed uses would
Ruversely affect any access to the shoreline or the nearshore
freas., fherefore, the Commission concludes that the allocation
Shit not in any way diminish access for traditional and custonary
Rative Heweitan practices in the project area, shoreline, oF
In Wai'ola, this court reviewed @ similar decision made
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by the Commission.” Therein, we held that “an applicant for a
water use permit bears the burden of establishing that the
proposed use will not interfere with any public trust purposes;
Likewise, the Commission is duty bound to hold an applicant to
its burden during a contested-case hearing.” 103 Hawai'i at 441,
83 P.3d at 704. This obligates the applicant
to demonstrate affirmatively that the proposed well would not
afsect ative Hawaiian’s rights: in other words, the absence of
‘that the proposed use would affect native Havailan’s
Fights sab ineutticient to ect the burden imposed upon (the
spplicent) by the public trust doctrine, the Hawai't Constitution,
sha the Code,
Ida at 442, 83 P.3d at 705 (emphases added and omitted). Through
the foregoing, we determined that the Commission's conclusion of
law ‘was unsupported by any clearly articulated FOF and
erroneously placed the burden on the Intervenors to establish
that the proposed use would abridge or deny their traditional and
customary gathering rights.” Id.
Similarly, the Commission’ s FOF #163 and COL #40 in the
instant case are insufficiently clear when read with its FOF #154
and #155, which found the following:
15¢, ‘Tere 2 9 statistical curve which these in fisheries refer
toa the maximum sustainable yield. This is a general
curve which could be used to show overall productivity for
specifically, in Mai‘ola, the Commission concluded in ite “COL No.
‘that no evidence was presented that the drilling of the well would
Affect the exercise of traditional and customary native Hawaiian
Lights. Nor does the Commission find that any evidence was
presented that the proposed use will affect any acces
‘shore areas. Therefore, the Commi.
Fights in the project area, shoreline, er nearshore
103 Hamas's at 442, 63 P.3¢ at 705.
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Fish, rather than a specific species of fish. The object is
fo stay Just below the curve so that the resource 4s
Continuowely being naturally replenishes. If you are below
The curve, Jou could increage the enount of freshwater being
taken our of tne aquifer, But if you are above (the) carve
oF the maxinum sustainable yield, the result will be a
Change in the habitat. the difficulty is determining where
ne is on the curve, One way to determine this io
onitoring. A decrease of abundance wil signal @ change of
habitat.
ass.
Eithout negative effects Could pe batt
Baseline information does not currently exist.
(Emphasis added.) Furthermore, the Commission's conclusion that
‘no evidence was presented” to suggest that the rights of native
Hawaiians would be adversely affected erroneously shifted the
burden of proof to Caparida and Kuahuia. See Wai'ola, 103 Hawai'i
at 442, 83 P.3¢ at 705. Accordingly, we hold that the Commission
failed to adhere to the proper burden of proof standard to
maintain the protection of native Hawaiians’ traditional and
customary gathering rights in discharging its public trust
obligation. See id, at 443, 83 P.3d at 706.
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IV. CONCLUSION
Based upon the foregoing analysis, we vacate the
Comnission’s final decision and order filed on December 19, 2001,
and remand for further proceedings consistent with this opinion.
on the briefs:
Jon M. Van Dyke, for Intervenor~
Appellant Office of Hawaiian
aeeairs
Clayton Lee Crowell, Deputy Rie harem
Attorney General, for Intervenor-
Appellant Department of Hawaiian 8
Home Lands le Or ouatenyare~
Haia, III of Native Hawaiian ASE S
Appellants Judy L. Caparida and
Georgina Kuahuia
Jean Polhamus Creadick, Deputy
Attorney General, for Appellee
Commission on Water Resource
Management
Alan M. Oshima, Randall K.
Ishkawa and Scott 7. Miyasato
of Oshima Chun Fong & Chung,
LLP for Applicant-Appellee
Kaluakoi Land, LLC
56
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14bd1c9e-e4cf-4909-9364-eec1070047b2 | State v. Klie | hawaii | Hawaii Supreme Court | No. 27992
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
anu
STATE OF HAWAI'I, Respondent/Plaintif£-Appellee,
THOMAS E. KLIE, Petitioner/Defendant Appellant ..|
———
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD CR. NO. 06078163)
a PEIN
(By: Moon, C.J., for the court’)
Petitioner/defendant-appellant Thomas E. Klie’s
application for writ of certiorari, filed on December 4, 2007, is
hereby accepted
DATED: Honolulu, Hawai'i, December 20, 2007.
FOR THE COURT:
Lf
Considered by: Moon, C.J., Levinson, Nakayana, Acoba, and Duffy, Jy
|
9b7e697e-e93b-4e06-9306-93d72c94f781 | State v. Cho | hawaii | Hawaii Supreme Court | No. 27799
IN THE SUPREME COURT OF THE STATE OF HAWAT'T Sj
23,
2
STATE OF HAWAT'I, Plaintift-appellee-Respondent
16 HY |
KUN OK CHO, Defendant-Appellant-Petitioner. Ҥ)
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Case No. TRE2 1P102-05$90, HPD No. 02211575)
(By: Levinson, J., for the court’,
and Acoba, J., dissenting separately)
Fy
Steven. Sere
Associate Just!
Dwight C.#. Lum,
for the defendant-appellant-petitioner
Kun Ok Cho,
on the application
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
aa
|
6e0129a6-e85c-477b-bc7f-bc2e891c8299 | Office of Disciplinary Counsel v. Vassar | hawaii | Hawaii Supreme Court | No. 28687
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
JOHN C. VASSAR, Respondent
(DC 07-119-8579) e
s
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the Office of Disciplinary
Counsel’s petition for issuance of reciprocal discipline notice
to Respondent John C, Vassar, pursuant to Rule 2.15(b) of the
Rules of the Supreme Court of the State of Hawai'i (RSCH), the
to, and the record, it
memorandum, affidavit, and exhibits the:
appears that:
(1) on dune 19, 2007, the Supreme Court of the state
of New York, Appellate Division: Second Judicial Department
disbarred Respondent Vassar from the practice of law in New York,
pursuant to New York's Judiciary Law § 90(4), based on his 2003
felony conviction for unlawful inprisonment in the first degree
in the State of New York;
(2) RSCH 2.15(b) requires the sane or substantially
equivalent discipline, or restrictions or conditions upon the
attorney's license to practice law in the State of Hawai'i,
unless Respondent Vassar shall show cause under RSCH 2.15(c) as
to why imposition of the same or substantially equivalent
O24
discipline should not be imposed;
(3) Respondent Vassar had not filed a response to cur
August 28, 2007 notice and order; and
(4) the same discipline is warranted in this
jurisdiction.
Therefore,
IT IS HEREBY ORDERED that Respondent John C. Vassar is
disbarred from the practice of law in the State of Hawai't.
Notwithstanding RSCH 2.16(c), Respondent Vassar’s disbarment is
effective upon entry of this order.
IT IS FURTHER ORDERED that Respondent Vassar’ s
reinstatenent in the State of Hawai'i is conditioned upon
(2) payment of all costs of this proceeding, and (2) full
reinstatement to the practice of law in New York.
DATED: Honolulu, Hawai'i, Novenber 19, 2007.
carole R. Richelieu, chief hm
Disciplinary Counsel, for
petitioner, on the petition. -
Presta Lo realty Oumee
ANY
Youre, Bute th
|
5e3a5019-987f-4f91-a804-fb70a2f04a73 | Office of Disciplinary Counsel v. Gravelle | hawaii | Hawaii Supreme Court | no. 27808
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
—
OFFICE OF DISCIPLINARY COUNSEL, Petitionedilln
vs. o
2
HOWARD J. GRAVELLE, JR., Respondent.
ORIGINAL PROCEEDING a
(onc 03-292-7892, 06-046-8388, 06-058-8398, 06-076-8416)
(By: Moon, ¢.9., Levinson, Nakayana, Aeoba, and Duffy, 20.)
pen consideration of the Disciplinary Board's Report
ane Reconnendation for the Disberment of Howard J. Gravelle, Jr,
the exhibits thereto, the record, and Respondent Gravelle's lack
of objection thereto as evidenced by his lack of response, ©
appears Respondent Gravelle violated Rules 2.2, 1.2(8), 2.3,
LeMay, 264(b), 2.2668), 3.2, 3.4U0), 8.210), 8.418), 8.4 (ee
snd 8.4(d) of the Pavai'i Rules of Professional Conduct when he
abandoned his practice and failed to cooperate with the office of
disciplinary Counsel's investigation of nis misconduct. Tt
further appears that Respondent Gravelle has been suspended fron
the practice of law since April 6, 2006 and hes act been
reinstated, Therefore,
17 1S HERESY ORDERED that Howard J. Gravelle, Jr. $s
disbarred fron the practice of law in this jursadiction effective
upon entry of this order.
rf 19 FURTHER ORDERED thet in addition to any other
requirenents for reinstatenent inposed by our Rules, Respondent
Gravelle shall pay any costs of these proceedings as approved
q
o
upon timely submission of a bill of costs.
IT IS FINALLY ORDERED that Respondent Gravelle shall,
within ten (10) days after the date of this order, file with this
court an affidavit in full compliance with RSCH 2.16(¢).
DATED: Honolulu, Hawai'i, November 8, 2007.
|
e87ab286-47ef-4528-8af8-018d43fc897b | State v. Kiaha | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
No. 27692
aw |
IN THE SUPREME COURT OF THE STATE OF HAWAT'T =
E38
STATE OF HAWAI'I, Respondent /Plaintif£-Appellee,
RYAN-SETH KIAHA, Petitioner/Defendant-Appellant.
SS
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR.NO. 04-21-1410)
ORDER ACCEPTING APPLICATION FOR A WRIT OF CERTIORARI
[MING IN PART i rT
‘THE SEPTEMBER 6, 2007_JUDGMENT OF THE
TAT ‘OF APPEALS
(By: Moon, C.J., Levineon, and Nakayama, J2.;
Acoba, J., concurring and dissenting separately,
with whom Duffy, J., joine)
on September 27, 2007, petitioner/defendant-appellant
Ryan-Seth Kiaha timely petitioned this court for a writ of
certiorari to review the Intermediate Court of Appeals’ (ICA)
September 6, 2007 judgment on appeal, entered pursuant to its
July 27, 2007 summary disposition order. Therein, the ICA
affirmed the Circuit Court of the First Circuit’s! april 5, 2005
judgment, convicting Kiaha of the offense of unauthorized control
of @ propelled vehicle, in violation of Hawaii Revised Statutes
(HRS) § 708-836 (Supp. 2004). The ICA also affirmed the trial
‘The Honorable David M. Lo presided over the underlying proceedings
Ws
court's imposition of an extended ten-year term of imprisonment
as a “persistent offender," under HRS §§ 706-661 (Supp. 2005)
and 706-662(1) (Supp. 2005), with a mandatory minimum of five
years as a repeat offender.
Having given due consideration to the argunents
advanced and the issues raised by Kiaha in his application and
upon careful review of the record and the briefs submitted.by
Kiaha and respondent/plaintiff-appellee state of Hawai't,
TT 18 HEREBY ORDERED that Kiaha’s application is
accepted, and
IT IS FURTHER ORDERED that the September 6, 2007
judgment of the ICA is affirmed in all respects, with the
exception of the extended term sentence inposed against Kiaha in
Light of this court's recent opinion in State v. Mauggoteaa, No.
26657 (Haw. Oct. 1, 2007) (holding the extended sentencing schene
in HRS §§ 706-661 and 706-662 unconstitutional). That portion of
the ICA’s judgment, affirming che trial court’s imposition of the
extended term sentence, is vacated, and the case is renanded to
the trial court for resentencing.
DATED: Honolulu, Hawai'i, October 30, 2007.
Naomi Hirayasu, for Fore
petitioner/defendant- 7
appellant on the .
application Toone
SERPAEAINENTccomey, Renew or awayanren
on the record for respondent /
plaintiff-appellee
|
94384b61-61bd-4020-96a9-0fa898d1686e | Williams v. Circuit Court of the First Circuit | hawaii | Hawaii Supreme Court | no. 28851
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
DAVID V. WILLIAMS, JR., Petitioner,
CIRCUIT COURT OF THE FIRST CIRCUIT, Respondent.
ORIGINAL PROCEEDING 2
(ey: Moon, ¢.J., Levinson, Nakayama, Acoba, and Duffy, 0d.)
Upon consideration of David V. Williams, Jr.'s
october 22, 2007 motion for appointment of counsel and tor an
evidentiary hearing and the Novenber 5, 2007 supplemental papers,
which axe deemed @ petition for a wist of mandamus, St appears
that the matters of whether counsel should be appointed and
whether an evidentiary hearing should be granted in SPP tos.
071-0006 and 07-1-0007 is for the determination of the cixcust
court pursuant to HRPP 40(£) and 40(1). ‘The circuit court's
determination of those matters is reviewable on appeal fzom any
judgnents that may be entered against petitioner in SPP Nos.
071-0006 and 071-0007 and petitioner will have # renedy by way
of appeal. Therefore, petitioner is not entitled to a writ of
mandamus. See Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334,
338 (2999) (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 neans to
redress adequately the alleged wrong or obtain the requested
action.). Accordingly,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall file the October 22, 2007 and November 5, 2007 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.
DATED: Honolulu, Hawai'i, November 16, 2007.
|
34763567-2264-40b0-af75-a72dcbac949a | State v. Beltran. ICA Opinion, filed 04/05/2007 [pdf], 114 Haw. 100. S.Ct. Order Accepting Application for Writ of Certiorari, filed 09/05/2007 [pdf], 115 Haw. 200. | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘*070R PUBLICATION IN WEST'S IDWAI'T REPORTS AND PACIFIC REPORTER'S#
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000:
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
. a
MARIE BELTRAN, Petitioner/Defendant-Appellant!"/>
oS
No. 26096
91] AON coog
CERTIORARI 10 THE INTERMEDIATE COURT OF APPI
(HPD NO. 54264940) ai
0016 hy
NOVEMBER 16, 2007
C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J,
Petitioner/Defendant-Appellant Marie
Moon,
tran
(Petitioner) filed an application for writ of certiorari on
July 31, 2007, requesting that this court review the judgment of
the Intermediate Court of Appeals (the ICA) filed on May 3, 2007,
pursuant to its April 5, 2007 published opinion’ vacating the
November 10, 2003 judgment of the district court of the first
circuit? (the court) convicting Petitioner of Camping Without a
Permit, and xemanding the case to the court to determine the
classification of the offense with which Petitioner was charged.
State v. Keavemauhili, 114 Hawai'i 100, 122, 157 P.3d 539, S61
+ the opinion was authored by Assoclate Judge Corinne K.A. Katanabe
and joined by Chief Judge Janes S. Burne and Associate Judge Craig
Rakainora.
ded.
+ The Honorable Clarence Facarro pre!
O23
‘S**TOR PUBLICATION J WEST’ S KAWAI'T REPORTS AND PACIFIC REPORTER#®
(app. 2007). According to the ICA, the camping regulation
involved was not constitutionally overbroad or vague and the
offense is one of absolute or strict liability under Hawai'd
Revised Statutes (HRS) § 702-213 (1993). Id, at 118, 121, 122,
157 P.3d at 557, S60, 561. The ICA ordered that if the charge
against Petitioner did not allege a negligent state of mind
element, the court shall enter judgment for camping without a
permit as a civil violation under HRS § 702-213(1). Id, at 118,
157 P.3d at 557. If, however, the charge included a negligent or
higher state of mind, the court shall enter judgment as a
criminal petty misdemeanor offense of camping without a permit
under HRS § 702-213(2). Id, at 122, 157 P.3d at $61.? We hold
that the canping regulation involved is overbroad and vague and
with all due respect, reverse the ICA’s May 3, 2007 judgnent and
the November 10, 2003 judgment of the court.
I.
The following matters adduced, some verbatim, are from
the record and the submissions of the parties.
On May 29, 2003, LPatitioner] appeared before the
wemauhili [eeane 2
Bidna
strict Iispiliey. 7
He the hearing on the motion to dismiss, the parties
ved the na |. (Petitioner) and Lucas
orally joined in Keawenauhili's notion to dismiss which
Respondent/Plaintift-Appellee State of Hawai'i (Respondent) did
not file a memorandum in opposition:
challenged the cenping ordinence based on “Defendant's
Notion to Dismiss #2” and "Defendant's Anended Motion to
Dienise.* The declaration and the mexorendum in support of
Defendant’ s Hotion to Dismiss #2 alleged that Keavomsuhili
bas cited by Honsluly police officers st 10:00 e0m. on
Beach park in ofelation of “Hawai nes
L.3kQ) (sic].” In [Respondent's] Nenorandum in Opposition
£5 Defendant's Motion to Dississ, the prosecutor state:
Shevendent was sleeping ins van next toa pitched tent."
ny The prosecutor argued HRS § 702-204 spplied to
the ordinance designating a state of mind of intentional,
knowing or recklessness...
(Some emphases in original and sone added.)
Following argument on the motions to dismiss, the court
denied the motions.
‘THE COURT: ALI right, the court agrees with
[Respondent] that notwithstanding that the [ROM] does not
specifically reference the particular MR requirement that
the court can leak towarda 102-204 with respect to the
ental state as to shatter or not the defendants acted
find the the [ROH] Te A
Hates “go the court will deny the notions.
MR. KIM: Your Honor, I'm sorry to keep on dragging
this but the fact that there's two parts to the motion(el,
the’ seen as that it use too! overly bros
The ICA related that procedurally, after denial of the motions to
dismiss,
[tyke [court] then set all three cases for trial on the same
date. Arpellants thereafter entered conditional no-contest
rt
OLiohs co-cisnisg. The (court) accepted the pleas and
Gntered seperate Judgnente convicting Appellants as charged
and sentencing each of then to pay 2 $20 fine, payment of
Which was suspended pending appeal. Appellants. filed
Separate sppeals, which [tne ICA) consolidated pursuant to
an order entered on Decenber 2, 2008.
Id, at 105, 157 P.3d at 544 (emphasis added) (footnote omitted).
‘The Petition refers to ROH § 10-1.3 regarding camping
permits and Amended Camping Policy, Rules and Regulations
Governing Camping at City Parks § 3(5), City and County of
3
‘*+FOR PUBLICATION I MEST’ HAWAI'T REPORTS AND PACIFIC REPORTERS
Honolulu, Department of Parks and Recreation (1996) [hereinafter
Rule or the Rule]. The relevant ROH state:
Sec, 10-1,3 Permits.
(a), Required
areas and facilities under the control, saintenance,
starts soa Parseenel oy eter teen a
Fecreation irae at
te) sixccot to eromulgate Rules end Regulations. the
Sod’ ropnlations purse to
ieecter shal orcas
(e)_ conditions of Permit. permis 2
and regulations promulgated by the directors + >
(Emphases added.) Also, ROH § 10-1.6 § 5 Penalties Violations --
Penalty (d) (1), indicates that camping without a permit is a
criminal offense and provides that any person violating any
Provision of these rules shall be punished by a fine not
exceeding $500 or by imprisonment for not more than 30 days, or
by both such fine and imprisonment.
As the ICA correctly notes, the camping ordinance does
not contain a definition for “camping” or any state of mind with
respect to the offense. A definition of “camping,” however, is
contained in the Rule:
Accommodation nurnoses auch as sleeping activities, or
ating preparations to sleep (including the laying’ down of
bedding for the purpose of sleeping), or storing personal
belongings, or making eny fire, oF using
shelter or other structure or vehicle for sleeping er doing
any digging or earth breaking or carrying on cooking
activities ih
Ene partic nguctin
‘**7OR PUBLICATION IN MEST’ WANAT'T REPORTS AND PACIFIC REFORTERC##
nt of the particioan
(Bnphas
qr.
‘The questions presented by Petitioner are “[w]hether
the ICA gravely erred in concluding [(1)] that the camping
ordinance and rule were not unconstitutionally overbroad and
vague, and [(2)] that HRS § 702-213(1) was applicable to a
camping charge.”
Viewing Petitioner's petition logically, Petitioner's
first objection is that “[t]he ICA gravely erred in concluding
‘[t]he record on appeal is absent of any facts surrounding the
circumstances for [Petitioner's] arrest(,]’ thus concluding they
[sic] were unable to determine if the ordinance and the rule
violated [Petitioner’s] and the co-defendants’ constitutional
rights." (Quoting Keawemauhili, 114 Hawai'i at 122, 187 P.3d at
S61.) Petitioner argues that
Lp) the record shows that the parties agreed to submit the
notion to dismiss on the (record,] which included the
Silegation in the declaration and the nenorendum in support
Of Defendants Motion to Dismiss #2 that Keswemauhili vas’
ited by Honolulu police officers at 10:00 p.m. on Gctober
ZL2002 For scmoine without a permit at Mokuiets peach natk
{sie},” "end [Responcent”s) Menorandus in Opposition to
Defendant's Hotion to Dismiss, wherein the prosecutor
alleges: " Jeebine ech
Eent") [(2)] "iReepondest] aid -not argue at any point below
thet the record was inadequate as the parties hed agreed
upon the state of the recora before submitting the
motion. <. " [(3)] Tenis (eloure may entertain « facse
overbreadth’ challenge to the extent that enforcenent of the
carping ordinance infringes on the constitutions) rights of
others who nay desire to engage in such activities but
Fefrain from doing so rather than risk prosecution.
M62 U.S. 352, 358 ney es (1983)
(held, facial cverbreacth and vagueness challenges permitted
FOR PUBLICATION IM WEST’ S KAVAZ'T REPORTS AND PACIFIC REPORTER’
when the disputed law reaches 2 ‘eubstantial anount of
Constitutionally protected conduct’).
(Emphases in original.) Although Petitioner joined in
Keawemauhili's motion to dismiss, the facts giving rise to the
violation relate to Keawemauhili. Petitioner does not indicate
such facts were identical to the oné
leading to her arrest.
Accordingly, on the face of the record, the ICA did not gravely
err in deciding that the record is devoid of the facts
surrounding Petitioner's arrest. However, Petitioner did enter a
conditional plea of no contest to violation of the ordinance,
thereby incurring a conviction to that extent for purposes of
appellate review.
qr.
As to the second argument, Petitioner argues “the
overbroad definition of ‘camping’ infringes on the exercise of
the freedoms of movement and association . . . guaranteed by the
due process clauses of the federal and Hawai'i constitutions and
the right to privacy and freedom of movement under [a]rticle 1,
section 2 of the Hawai'i constitution.” According to Petitioner,
“freedom of movement and freedom of association . . . are
necessary foundations to our American way of life since their
absence or denial characterizes confinement and imprisonment [,]”
(quoting State v. Shicematsu, 52 Haw. 604, 609-10, 483 P.2d 997,
1000 (1971)), under the Hawai'i Constitution, “[£]zeedom would be
incomplete if it does not include the right of men to move from
Place to place, . . . to stand under open sky in a public park
‘
"FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS+®
and enjoy the fresh air, to lie down on a public beach and enjoy
sunbath, ani rt Jate with others in
enjoyment of an avocation or a vocation[,]” (quoting id. at 610,
483 P.2d at 1001 (emphasis added)), and “freedom of movement is
‘a vitel aspect of the right of privacy’ under [aJrticle 1,
[slection 2 of the Hawai'i Constitution(,]” (quoting State vw.
Abellano, 50 Haw. 384, 386-87, 441 P.2d 333, 335 (1968)
(Levinson, J., concurring, joined by Richardson, C.J.)).
Petitioner thus argues the Rule is overbroad in that it would
infringe on activities that “anount to spending a day at the
beach":
‘ameunk to Goending a day at the beach, People should be
able to bring tents, iteas for sleeping, cooking, and engage
in activities which’ certainly pay appear to amount te
setting up “living scccmodstions” under the camping
definition... « Requiring @ permit based on conduct
Which "reascnabiy'appeara” that one is “using the park ae a
Living accennodation,” without regard to the individual's
actual intent, *
sere based on the spoesrance tht their elaborate
Dicnickina activities =~ cooking oF sleeping under an awning
Sate ssetting up camp). - - (and) is an unressonsble
restraint on their constitutional rights. [Jn effect
Petitioner argues t]he overbroad definition of “camping”
mmnecessarily infringes on the freedons of association,
novenent and oxivacy(.1*
(Emphases added.)
Petitioner maintains that “the ICA avoided the need to
address the extent to which such activities are constitutionally
protected by concluding{,} in {a} completely circular fashion(,)
that the ordinance do
not prohibit such activities but ‘nerely
require[s) that a permit be obtained to engage in these
activities.’ (Quoting Keawenauhili, 114 Hawad'l at 120, 157
POR PUBLICATION IN WEST'S KAWAI'T REFORTS XN PACIFIC REFORTER:
P.3d at $59.) According to Petitioner “[tJhe ICA failed to
recognize that while requiring permits to regulate the use of
public parks is a legitimate exercise of the government's police
power, the sweeping definition of conduct that requires a permit,
es, comping, goes further than necessary to achieve the
governments purpose and unreasonably limits constitutionally
protected as well as unprotected conduct.”
The ICA did observe further that, as to her overbreadth
challenge, Petitioner must show how she was affected and, to
reiterate, the ICA stated that “[t]he record on appeal is absent
of any facts surrounding the circumstances for Appellants’
arrests.” Keawemauhili, 114 Hawai'i at 122, 157 P.3d at S61.
Gaulerg, 78 Haval's 12%, ez, 690 ec20 1167, nee TTS)
(gooting State vy Trigg, 71 Naw. 479, 483, 795 P24 260, 202
(2580) "(quotation warks omitted)). *a:pereon to whom a
statute may be constitutionally applied cannot challenge the
Statute on the ground that it say conceivably be applied
lunconstitutionally to others.” state v. Sturch, 02 Hawal'd
269, 274, 921 F.24 1170, 1178 (App, 1996). (quoting. (state
ul Kanebiua, 61 Haw. [136,] 144, 697 F.2d 1390,] 598
TU979)] (quotation marks omitted) ) (-)
‘Id, at 121-22, 157 P.3d at 560-61. In Sturch, the ICA said that
laws sre overbroad because they would punish innocent,
constitutionally protected behavior as well aa conduct which
may be validly regulated... (Otherw
Soctrine ie generally lintied to a i
Anendnent rights of those ast pres
Tacs, #55 0.5. 485, 50
T8¥2) tinste, v., concurring).
82 Hawai'i at 273-74, 921 P.2d at 1174-75 (other citations
omitted). Generally, then, “‘one who alleges that a statute is
unconstitutionally overbroad, other than a statute affecting the
‘s0FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REFORTER##
freedom of expression, must be directly affected by the clained
overbroad aspects." Id. at 274, 921 P.2d at 1175 (quoting
Tnipp, 71 Haw. at 483, 795 P.2d at 282 (citing Kaneakua, 61 Haw.
at 143-44, 597 P.2d at 594)) (brackets omitted). Because there
are no facts in the record as to the circunstances resulting in
Petitioner's arrest, it cannot be determined how Petitioner was
“directly affected” by the ordinance. Further, as in Sturch,
Petitioner here “did not claim that the statute infringed upon
(her] constitutional right to freedom of expression,” id, oF
privacy.
As mentioned before, Petitioner did enter a no-contest
plea to violation of the ordinanct
By her joinder in the motion
to dismiss, Petitioner concedes that, as was Sturch, she “is a
Person to whom (the ordinance] directly applies(.)” Id, Becaus
+, Aestated in Erietas v. adnin, Dir, of Courts, 104 Hawai'i 463,
406 n.6, 92 P.3d 993, 996 n-6 (2008
For example, this court has held that with regard to the
right to privacy ond first snencnent rights, 2 person whose
righte are not violated nay raise then for othe!
Kap, €9 law. 483, 06, 768 P.24 372, 375 (1993) (holding
thet “sellers of pornographic itens possess the standing to
assert the privacy rights of those persons sho wish to Buy
those itens to read of view in the privacy of the home”
Decause buyers of pornography will vaually never be subject,
to prosecution under the statute at issue); State v. Manzo,
58 Hiaw. 440, 465, 573 P.2d 945, 949 (2977) (explaining that
overbreath [sic] doctrine as applied to the first amendment
is an exception to “traditional rule that @ person may not
Challenge statute upon the ground that it aight be applied
onconststuticnaily in cireusstences other than those before
tthe court") (.]
(Brackets and cther citations omitted.) It may be noted that although freedom
of movenent was identified as # separate freedom in shisenatey, 52 Haw. at
609-10, 483 P.24 st 1000, st was ientified as an aepect of the right to
privacy in the concurring opinien in Abellano, $0 Hew. at 386-87, 441 P.2d at
335, to which Fetitioner cites. At its center, however, Petitioner's
‘argiments reat on freedom of movenent and association,
9
‘s#+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
her “expressive conduct is not at issue,” id., generally
Petitioner would “not have standing to challenge [the ordinance]
as overbroad{,]” id.
qv.
However, as related supra, Petitioner maintains that
“this court may entertain a facial overbreadth challenge to the
extent . . . the ordinance infringes on the constitutional rights
of others[.]” (Citing Kolender, 461 U.S. at 358 n.8.) In
Kolender, the Court was faced primarily with “a facial
{vagueness} challenge to a criminal statute that requires persons
who loiter or wander on the streets to provide a ‘credible and
reliable’ identification and to account for their presence when
requested by a peace officer[.]" 461 U.S. at 353. The Court
indicated that “[u]nder the terms of the statute, failure of the
individual to provide ‘credible and reliable’ identification
permits the arrest.” Id. at 357 (footnote omitted).
As stated by the Court, “the void-for-vagueness
doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does
Rot encourage arbitrary and discriminatory enforcement.” Id.
(citing Hoffman Estates, supra) (other citations omitted).
According to the Court, the statute “contain{ed] no standard for
determining what a suspect has to do in order to satisfy the
requirement to provide a ‘credible and reliable’ identification.
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As such, the statue vests virtually complete discretion in the
hands of the police to determine whether the suspect has
satisfied the statute[.]” Id. at 358.
Although its “concern . . . [was] based upon the
‘potential for arbitrarily suppressing First Anendnent
liberties{,]’” id, (quoting Shuttlesworth v, City of Birmingham,
362 U.S. 87, 91 (1965)), the Court declared that the statute
“[iln addition, . . . implicates consideration of the
constitutional right to freedom of movenent{,]” id. (citations
and footnote omitted) (emphasis added), and, thus, involved an
overbreadth violation. In footnote 8 to the foregoing statement
the Court said, “First, . . . we permit a facial challenge if a
law xi
ches ‘a substantial amount of constitutionally protected
conduct.’ [Hoffman Estates], 455 U.S. [at] 494. . . . Second,
where a statute imposes criminal penalties, the standard of
certainty is higher.” Id, at 358 n.8 (citation omitted). Thu:
the Court concluded, “[t]his concern has, at times, led us to
wi minal statute of ce even when it cot
sonceivably have had some valid application." Id. (emphasis
added) (citations onitted). Ultimately, the Court held “that the
statute . . . is unconstitutionally vague within the meaning of
the Due Process clause of the Fourteenth Anendzent by failing to
clarity what is contemplated by the requirenent that a suspect
provide a ‘credible and reliable’ identification” Id. at 353-54.
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v.
Hoffman Estates, referred to in Kolender, involved a
“facial challenge to a drug paraphernalia ordinance on the ground
that it is unconstitutionally vague and overbroad.” Hoffman
Estates, 455 U.S. at 491. That case stated that “[iJn a facial
challenge to the overbreadth and vagueness of a law, a court’s
first task is to determine whether the enactment reaches a
substantial amount of constitutionally protected conduct.” Ida.
at 494 (footnote omitted). In determining whether a substantial
amount of protected activity was affected, “a court should
evaluate the ambiguous
18 well as the unambiguous scope of the
enactment. To this extent, the vagueness of a law affects
overbreadth analysis.” Id, at 495 n.6.
On its face the Rule in the instant ca
states that
certain conduct, according to the definition of camping,
constitutes camping “regardless of the intent of the participants
or the nature of any other activities in which they may also be
engaging.” (Emphasis added.) However, such “other activities”
conceivably may be activities as innocent as those described in
Shigematay relating to freedom of movement and association, or
that involve expressive conduct subjecting the camping regulation
to greater scrutiny. In sweeping activity into its ambit
“regardless” of its nature, the Rule by definition includes any
activity not specifically regulated by the camping ordinance.
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Such other activity, even if predominant in nature, is
not separable from, but ensnared by, the camping regulation. The
Limitless net cast by the Rule would seemingly reach “a
substantial amount of constitutionally protected conduct, }”
Hoffman Estates, 455 U.S. at 494, under the Hawai'i Constitution,
as described in Shigematsu. Under these circumstances the
camping regulation would appear void because it would subject
“innocent, constitutionally protected behavior as well as conduct
which may be validly regulated[,]” Sturch, 82 Hawai'i at 273-74,
921 P.2d at 117
-75, to a criminal penalty.
vr.
If the camping regulation is overbroad, the vagueness
question need not be reached. However, for completeness, as to
the third argument, it is noted that Petitioner agrees with the
ICA's statement that
4 criminal statute is void for vagueness unless st:
Li gives the person of ordinary intelligence a reasonable
opportunity to know what conduct ie prohibited so that he oF
she may act accordingly, and 2) provides explicit standards
for these who apply the statute, in order to avoid arbitrary
and discrininatory enforcenent and the de
policy matters to policenen, judges, and juries for
Fesolution on an ad hoc and subjective basis.
Keawenauhili, 114 Hawai'i at 119, 157 P.3d at 558 (citing State
Maates, 64 Hawai'i 211, 220-21, 933 P.2d 48, 57-58 (1997).
Petitioner argues (1) although the ICA stated the
“Camping Ordinance, in conjunction with the Camping Rules, is not
unconstitutionally vague[,]” id. at 121, 157 P.3d at 560, “the
number of areas which the director regulates is so varied and
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numerous, that there is no way for an individual to know how,
whether or where to find a definition of camping”; (2) “the rule
itself is unconstitutionally vague” because (a) “sleeping,”
“sleep,” “sleeping activities” or “making preparations to sleep”
“are . . . amorphous and dependent on subjective interpretation";
(b) “the definitions of ‘storing personal belongings,’ ‘doing any
@igging or earth breaking,’ and ‘carrying on cooking activities’
suffer from the sane lack of specificity”; (c) “conduct from
which {t ‘reasonably appears’ that one is ‘using the park as a
living acconmodation,’ without regard to the individual's actual
intent, . . . based on a third-party’s perception . . . does not
Provide fair notice . . . to avoid arrest"; and (d) “[t}he rule
defines the prohibited uses . . . for ‘living accommodation’ as
those activitii
which ‘reasonably appear’ to be those where the
park ie being used as a ‘living acconmodation(]’ . . . [18 a]
circular definition[.1”
In Ate answering brief Respondent maintained that
(ene Role] . . . states camping “neans the use of public
Perk for living accommodation purposes." [The Rule) then
Aste the specific activities that could constitute camping,
but would only be considered comping if st reasonably,
appeared the participants were in fact using the park area
fer “living accommodation purposes." (Emphasis added.)
Such language is... . adequate notice ‘of what constitu
(camping] .". . ROW’S'10-1-3(a) (2) and Section 3(5) state
with reasonable clarity the act proscribed and provides
(sic) fixed standards for sdjudging guilt.
(Citation omitted.)
vir.
With respect to Petitioner’s argument (1), it appears
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that ROH § 10-1.3(a) that concerns permits in general and
includes “camping” permits, in particular ROH § 10-1.3(a) (2),
also vests authority in the Director to promulgate rules, ROH §
10-1.3(b), and further mandates in relevant part that “permits
shall be issued pursuant to. . . rules . . . promulgated by the
director[,]” ROH § 10-1.3(c). As mentioned before, the Rule
contains a definition of camping.
‘The provision in ROH § 10-1.3(c), on its face, notifies
potential campers that a camping permit is issued “pursuant to
+ rules,” and thus, that a permit is subject to the rules
Promulgated by the director, In that situation, the reader is
“connect [ed]” from the ordinance to the rule ag Petitioner argues
should be the case.”
vant.
As to the definition of “camping,” referred to in
Petitioner's items (2) (a), (b), and (d), read in context, the
Phrase “for living accommodation purposes” is exemplified in
conduct “such as” “sleeping,” “preparations to sleep,” “storing
personal belongings,” or the use of “tents or shelter. . . for
sleeping” and “cooking activities
“Such as” refers to an
“adjectival clause[,]” Webster's Third New Int’) Dictionary 125
+ Although Petitioner's position at oral argument vacillated between
agreeing that the camping definition in the rule was sincorporated" in the
Camping ordinance and not sgreeing that it was, the letter position wes,
apparently with respect to its argunent (1) that there was no way an
Sndividual could know where to find the rule. Insofar a Petiticner argues
thet the ordinance, in conjunction with the rule, was overbroad and enbiguous,
At concedes the rule wes incorporated into the ofdinance.
1s.
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(1961), “of @ kind or character about to be indicated, suggested,
or exemplified{,]” id. at 2283, Inasmuch as the examples of the
Prohibited conduct are intended to “indicate[], suggest {], or
exemplify[]” what is meant by living accommodation, accommodation
in the Rule connotes lodging. The definition of “accommodation”
includes “lodging, food, and services (as at a hotel) [.]”
Hebster’s Third New Int’] Dictionary at 12. Use of the public
Park as @ living accommodation, then, is reasonably
distinguishable from recreational conduct such as “spending a day
at the beach.”
Howeve:
the foregoing is modified by a “reasonably
appears” standard in the definition of camping. To repeat, that
standard instructs that a violation occurs where “it reasonably
appears. in light of the circumstances, that the participants in
conducting these activities, are in fact using the area as a
living acconmodation regardless of the intent of the participants
or the nature of any activities in which they may also be
engaging.” (Emphases added.)
Arguably, the standard would seem internally
inconsistent and incomprehensible to “a person of ordinary
intelligence,” State v, Bul, 104 Hawai'i 462, 464, 92 P34 472,
473 (2004), and invites “delegation of basic policy matters to
policemen . . . for resolution on an ad hoc and subjective
basis,” Bates, @4 Hawai'i at 221, 933 P.2d at 58, in violation of
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the due process clause of the Hawai'i Constitution, article T,
section 5.
First, the stendard requires the actor to view his or
her conduct as a third person would, rather than informing the
actor as to how to avoid violating the regulation. Additionally,
the term “reasonably appears” is susceptible of subjective
application among persons enforcing the regulation and those who
must abide by it. The prepositional phrase “in light of the
circumstances,” does not instruct the actor on what is
permissible or impermissible, but is broadly all encompassing,
and again invites ad hoc and subjective resolution of the
regulation policy by the police officer.
Relatedly, the phrase “in fact,” meaning in common
parlance “actual” or “real,” Black's Law Dictionary 792 (#th ed.
2004), modifying “us[e] of the area as a living accommodation,”
is seemingly contradictory of the earlier directive that a
person’s conduct of activities “reasonably appear(]” to be of
Such use; connoting that the appearance, .e,, to “look{,] to
seem[,]” Webster's Third New Int'] Dictionary at 103, of such
utilization as a “living accommodation” need not be in actuality
‘article I, section 5 of the Hawai'i Constitution states as
follows:
[No person shail be deprived of life, liberty oF
property without due procese of law, nor be denied the equal
protection of the lave, nor be denied the enjoyment of the
Person's civil rights or be discriminated ageinet in the
exercise thereof because of race, religion, sex or ancestry.
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such use, so long as it reasonably, i.e., “to a fairly sufficient
extent[,]" id, at 1892, seems to be of such usage.
“In fact” seems also inconsistent with the
qualification that “use” is to be evaluated “regardless of
intent.” It would appear logical that the intent of the parties
would be a factor in determining whether “in fact,” the
Participants were utilizing the area as a “living accommodation”
or not. The phrase excluding consideration of “the nature of any
other activities in which they may also be engaging” is at the
least confusing in view of the prior directive that the
Prohibited activities are to be viewed “in the light of the
circumstances,” which would include an evaluation of the
activities in which the participants were engaged. in effect,
the standard vests virtually complete discretion in the hands of
the police to determine whether a person has violated the
regulation, See Kolender, 461 U.S. at 358.
mx.
The ICA found the ordinance was not vague, relying on
lark v. Cnty. for Creative Non-Violence, 468 U.S. 268 (1984),
and Beople v. Scott, 26 Cal. Rptr. 2d 179 (Cal. App. Dep't Super.
Ct. 1993), According to the ICA, “(t]he (Honolulu) definition is
almost identical to one contained in a National Park Service
regulation that was upheld [in Clark]” and in Scott where “a
California eppellate court upheld . . . a municipal ordinance
that was similar to the one upheld in Clark[.)" 114 Hawai'i at
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119-20, 187 P.3d at 558-59. The ICA concluded that “most
individuals have a conmon-sense understanding of what ‘camping’
iss... (The definition of ‘camping’ in [the Rule) provides
sufficiently definite guidelines and exnples . . . (and)
objective standards to law enforcenent officials . . . so as to
prevent arbitrary enforcement {.]" Id, at 121, 197 P.3d at 560.
Similarly Respondent, in its answering brief,
maintained that “{s]imilar camping ordinances have withstood
unconstitutional challenges due to vagueness in other
jurisdictions. In Scott, a camping ordinance, that had the same
definition of camping as Section 3(5) was upheld, despite a
constitutional challenge based on vagueness.” (Citing 26 cal.
Rptr. 2d. at 182-63.) (Other citations omitted.) However,
Respondent mischaracterizes the Scott ordinance as being the
“same.” In fact in Scott, the term living acconmodation was
expressly defined as “remaining for prolonged or repetitious
periods of time not associated with ordinary recreational use[.]”
Id. at 180 n.1. Scott d
scribed the ordinance as follows
est Hollywood Muntespal Code section 4902...
Subdivision 8(a). . . states: "No person’ shall within the
Limits of any public park or recreation area: - (a)
Canp at any time.” The ordinance slso provides the
following definition of camping:
‘"*Ganping’ shall mean residing in or using a park for
Living accommodation purposes, a5 exemplified by
Bot sesociated w restionsl use of
EAEE with one's personal possessions (including But
fot limited to clothing, sleeping bags, bearolis,
Blankets, sheets, luggage, backpacks, kitchen
Utensils, cookware, and similar materiel), sleeping oF
aking preparations to sleep, storing personal
Belongings ve defined, regularly cooking oF
consuning meals, of living ins parked vehicle. These
"8 constitute camping when it reasonably
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appears, in light of all the circumstances, that &
person(s) is using a park as living acconmodation
Fegardless of their intent or the nature of any other
activities in which they might also be engaging.”
Ad. (emphasis added). the California court said that “[alt
arraignment in each case, the defendants made oral motions to
dismiss the case . . . (and) also requested the court rule on the
constitutionality of the ordinance, specifically whether it was
vague as to the definition of camping.” Id, at 160. The court
noted that the ordinance was similar to a National Park Service
regulation:
The... ordinance at i
to, and possibly medeled
regulation prohibiting unauthorized camping (with
ban on sleeping) examined by the United States Suprene Court
in {Clark}. In that cese, the Suprene Court upheld ene
Fegulation’s ban on camping when it was challenged by
Gesonstrators who wished to camp in 3 park across frém the
mnie Bow
Id, at 181-82 (footnote omitted).
But as noted, the California ordinance, unlike the
Honolulu ordinance, specifically defined “living accormodation.”
Significantly, in determining that “(t]he ordinance also provides
adequate guidelin
for the police sufficient to prevent
arbitrary enforcement of the ordinance(,]” Scott relied, inter
alia, on the more definitive Liniting language that is not
included in Rule 3(5):
bevexenplified by their “retsining for erolenses oe
Kebetitiou: periods of tine not associated wich ordinary
Lectestions] use of a park with one's personal possessions”
hich include indicia of camping(.]
Id. at 182 (emphasis added) .
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Finally, Scott held in contradiction to Kolender, that
the defendants had to show the statute was vague in all of its
applications:
So long as 2 statute does not thresten to infringe on the
exercise of Firet Anendeent or other constitutional rightay
however, such asbiguities, even if numerous, do not justify
the invalidation of a statute on ite face. In order to
Succeed on # faclal vagueness challenge to a legislative
easure that does not threaten constitutionally protected
conduct .". . aparty mat do more than identity sone
Sngtances in’ vhieh he spplscation of the erature my be
ieperatsaTbly waa Soni
Scott, 26 Ca. Rptr. 2d at 183 (emphasis added) (internal
quotation marks, citations, and emphasis omitted) (ellipses in
original). As mentioned before, Kolender, however, indicated
that “[t}his concern has, at times, led us to invalidate a
eximing svably have
had_sone valid application.” 461 U.S. at 358 n.8 (emphasis
added) (citations omitted). In light of the foregoing and the
specific analysis regarding Rule 3(5) supra, Scott cannot be
considered persuasive.
In Clark, the cenping prohibition was similar to the
instant case but did not include the limiting language “remaining
for prolonged or repetitious periods . . . not associated with
ordinary recreational use” in Scott:
Comping is defined os
Behe se of perk land for Living accomodation
purposes Such a8 sleeping activities, or making
Preperations to sleep (including the’ Laying den of
Esdaing for the purpose of sleeping), oF storing
Personal belongings, oF aking any fire, of using any
Eines or - other structure." «for sleeping or
Going sny digging or earth breaking or carrying on
cooking activities,
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activities, the regulation provides, “constitute
camping when it reasonably spears, in light of all the
cizcunstances, that the participants, in conducting these
activities, are in fact Using the area ss a living
‘accommodation regardiess of the intent of the participants
oF the nature of any other activities 4n which they may iso
be engaging.”
Glark, 468 U.S. at 290-91 (ellipses in original) (citations
omitted). However, in Clark, the majority of the Court did not
discuss the question of vagueness but focused on whether the
camping regulation was ar
sonable time, place and manner
restriction on expr.
ive activities:
‘The issue in this case ie whether @ National Park Service
regulation prohibiting camping in certain parks violates: the
Firat Anendnent when applied to prohibit denonetrators. from
sleeping in Lafayette Park and the Mall in connection With &
Genonstration intended to call attention to the plight of
the homeless, We hold that it does not.)
Ud, at 289. As the majority noted, “Petitioners submit, as they
@id in the Court of Appeals, that the regulation forbidding
sleeping is defensible either as a time, place, or manner
restriction or as a regulation of symbolic conduct. Me agree[.]”
Id, at 294. similarly, the dissent focused on the reasonableness
of the restriction as to time, place, and manner, stating,
“First, the majority is either unwilling or unable to take
Seriously the First Anendnent claims... . Second, the
majority misapplies the test for ascertaining whether a restraint
on speech qualifies as a reasonable time, place, and manner
regulation.” Id, at 301 (Marshall, J., dissenting, joined by
Brennan, 3.).
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only the concurrence briefly referenced the vagueness
question as being
aifticult to conceive of what “camping” means, if it does
ot include pitching a tent and building @ fire... With
Bll its frailties, the English language, as used in'this
Country for several centuries, and as used in the Fark
Service regulations, could hardly be plainer in informing
the public that camping in Lafayette Park was prohibite:
‘Id, at 300 (Burger, C.J., concurring). While arguably Clark may
have implicitly assumed the National Park Service regulation was
not vague, it did not analyze or contain any discussion of the
vagueness doctrine as applied to the regulation. Clark, then, is
not specifically instructive in this regard.
x.
Respondent cites the following other cases.’ However,
in these cases the language, noted supra, as seemingly rendering
‘the Honolulu Camping regulation vague was not employed, and
qualifying language in the applicable law removed ambiguity. In
Joel v, City of Orlande, 232 F.3d 1353 (11th Cir. 2000), cert,
7 __aithough not cited in its Answering Brief, Respondent cited United
States v. thomas, G64 F.2d 188 (D.C. Cir. 1968), et oral argunent, where the
court there held that an anticasping regulation was not unconstitutionally
vague as epplied to defendants atteapting to maintain a “constant, «
expressive presence in Lafayette Park.” Id, at 190. There, the definition of
“camping” was nearly identical to the definition in'the instant case. Id.
Thomas ts distinguishs id not base sts holding on
Weether an ordinary person was provided with fair notice that contenplated
Conduct was prohibited by the statute, but on whether the specific defendants
Feceived such fair notice. Id, at 196. That court concluded that the
Gefendants, in attempting to achieve “continuous presence” in the park, had
Heir notice that their conduct, including “lying prone each night and early
norning in sleeping begs ond oh blenkets, motionless, with eyes shut, and
Surrounded by bags and (perhaps) clothingl,]” was prohibited by the
fanticanping regulation. Id, st 197
‘The D.C. circuit court did not inguire into whether the
could be unconstituticnally vague because “cases less clear than the
(Gefendants’) say exist” as such “review considers the overbreadth or facial
validity of the challenged enactuent.”" 1d, at 198. However, the defendants
Gia not allege that the regolation wan ovefbroad of facially invalid.
gulation
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denied, $32 U.S. 978 (2001), the federal court indicated that
additional indications of “actual camping” were required beyond
sleeping on city property.
Section 43.52 of the City Code provideld in part]:
Camping Prohibited; exceptions.
(a) For the purposes of this section, “camping”
is detinea
{2) Sleeping or otherwise being in @
temporary shelter out-of-doorey oF
(b} Sleeping out-of=doores oF
hg] cgeking over an open flame or fire
[in conginction with the Code}, the City promulgated a
handbook... [that in pertinent part] resd as follows:
‘cal court culinge have held that_in ofder to “camo.
ea ‘One oF more of the following should
‘exist Before an arrest unser this section ie
‘Sppropriate
(2) the property must be public property,
Ancluding highway overpass
(@) the sutpect te inside 9 tent or sleeping
inside sone form of temporary shelter;
T3) the suspect hos built # campfire,
(4) the suspect is asleep 2nd uhen svakened
yolunteers that be has no other place to live. «=
Simply being asleep in a poblic place during iate
‘night or early morning hours makes the camping case
stronger, but i not alone sufficient to justity an
arrest under this section unless there is sone indicle
Of true “camping” as noted above.
Ids at 1356 (emphases added). Unlike the instant case, that
court noted the parties stipulated that the conduct of the
defendant, Joel, fell within the definition of camping.
The affidavit supporting the first arrest stated that Joel
2 sb
tas eh ater ares The
affidavit supporting Joel's second arrest stated that he
“ned his head on his plastic shopping bag that contained
miscellaneous clothing.” ... Joel stated that he we
Using @ plastic bag with sone possessions asa pillou, . .
the partie: ed th ver at
‘canpina” ae “sleeping cut-of=doors(-]”
Ad. at 1360 n.4 (emphases added).
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In City of Portland v, Johnson, 651 P.2d 1384 (Or. App.
1962), rev. denied, 660 P.2d 681 (1983), the ordinance
prohibit (ed) “camping
+ in oF upon any . . . public right-of-way or any
other’ place to which the general public has access, OF
Under any Bridgeway or viaduct. =
(and) providied) that "'to camp’ means to’ set up or to
yenain'in oF at, a campsite.” “Campsite” is defined
ws 0s any place where any bedding, sleeping bi
other’ sleeping matter, or any stove or fire, is
Placed, established of maintained, whether or not such
Place incorporates the use of any’ tent, lean-to, shack
Sr any other structure, oF any vehicle or part
theress.”
‘Ids at 1385, Johnson related that, in addition, the ordinance
stated:
Section 1. The Council finda:
2. “that from tine to tine persons establish
campsites, for the purmose of maintaining a temporary
place to lives ss
Id, at 1386 (internal quotation marks omitted) (emphasis in
original). Thus, unlike the instant case, that court decided
that camping involved using the site as “a temporary place to
Live” based on the expressed purpose in the ordinance itself.
Reading the defini
lon of campes|
toget!
sr with ©
= statenent of purpose... , it is apparent that the
Grdinance (does) not... ; prohibit... activities. . +
Such as picnicking on’a blanket ina park... Te da
clear that the type of canping that the ordinance prohibits
Gevthat «(of a) "purpose of saintaining @ tesporary
place to ive."
In Tobe v. City of Senta Ana, 892 P.2d 1145 (Cal.
1995), the ordinance stated:
Sec. 10-402, Unlawful Camping.
It shall be unlawfal for any person to camp, occupy
facilities ox use camp saranhernalie in the following
fea, except as otherwise Proviced?
(a) any strest
(S) Shy public parking lot or public area, improved or
unimproved.
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Sec. 10-403 Storage of Personal Property in Public
Places.
it shail be unlawful for any person to store cersona
= ‘ld ee raphe
in the following arcas, except a8 otherwise provided by
resolution of the City Council:
(a) any parks
(b) any Streets
(c) any public parking lot or public ares, improved or
unimproved.
Id. at 1150-51 (emphases added) (footnote omitted). The relevant
words were specifically defined:
Camp means to pitch or occupy conp facilitie:
amp paraphernalia,
(b) Sane facilities include, but are not linited to,
tents, nits, or tonporary shelters.
(C) Cine paraphernalia includes, but is not limited
£0, Earpaulins, cots, beds, sleeping bags, hammocks oF
non-eity designated cooking facilities and similar
equipment.
(a) Bark means the sane
this Code.
(e) Store means to put aside or accumulate for u
when needed, ‘to put’ for safekeeping, to place of
Ina Location.
(2) "Skreet means the sane
this Coss.
Getined in section 31-1 of
defined in section 1-2 of
Id. at 1151 n.2. In deciding the ordinances were not vague, Tobe
said, “The terms which the Court of Appeal considered vague are
not so when the purpose clause of the ordinance is considered and
the terms are read in that context[.]” Id. at 1167. That court
indicated:
Ihe stated purnose of the ordinance is to make public
airaats ad other areas readily accesible to the public and
evant iplie proserty “for am ses
sents 3 fous for wh wer
= “No reasonable person would believe that # picnic
+ would constitute camping in violation of the
Grdihenee. ss
Nor ia the term “store” vague... . When read
An Light of the express purpose of the ordinanee--ts
avoid interfering with use of thote areas for the
Purposes for which they are intended «
Ad. at 1168 (emphasis added). As to an overbreadth challenge,
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the California court indicated that “{nJeither the . .
plaintiffs nor the . . . petitioners have identified a
constitutionally protected right that is impermissibly restricted
by application or threatened application of the ordinance.” Id.
at 1169.
As discussed above, the aforementioned cases cited by
Respondent are distinguishable from the instant case.
Furthermore, “as the ultimate judicial tribunal with final,
unreviewable authority to interpret and enforce the Hawai'i
Constitution, we are fr
to give broader protection under the
Hawai'i Constitution than that given by the federal
constitution,” State v, Maganis, 109 Hawai'i 84, 67, 123 P.3d
679, 682 (2005) (internal quotation marks and citation omitted).
See also State v. Texeira, 50 Haw. 138, 142, 433 P.2d 593, 597
(1967) (stating that “federal decisions do not . . . prevent this
court from extending greater protection in interpreting the state
constitution where we determine it to be appropriate” (footnote
omitted)). Thus, this court is not bound by the decisions of
other courts insofar as greater protection may be afforded under
article 1, section § of the Hawai'i constitution.
xr.
Because the ordinance (in conjunction with the Rule) is
unconstitutional, we need not reach Petitioner’s fourth argunent
that the ICA was mistaken in treating the regulation as one
imposing absolute liability. Accordingly, the May 3, 2007
27
TOR PUBLICATION IN wre
WOWAL'T REPORTS AND PACIFIC REFORTERSS*
judgment of the ICA and the Novenber 10, 2003 judgment of the
court are reversed.
Theresa S, Marshall, Dp
Deputy Public Defender
(Deborah L. Kim, Deputy
Public Defender’ on the Riza nan
application and briefs),
for petitioner/ ea ON etsy 1
defendant-appellant. Raut a
Ryan Yeh, Deputy Cc
Prosecuting Attorney,
City and County of
Honolulu, for respondent/ |
plaintiff-appellee.
28
|
60d9a4af-d3a9-49db-bf97-3c0de65e8bac | State v. Quiros | hawaii | Hawaii Supreme Court | No, 26569
12 AON LOI
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
aad
Se a
O12 tid
STATE OF HAWAI'I, Respondent/Plaintiff-appellee, =
RIGOBERTO QUIROS, Petitioner/Defendant-Appellant.
—
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-0483(2))
(By: Moon, C.J., for the court)
Petitioner Rigoberto Quiros’ application for writ of
certiorari, filed october 15, 2007, is hereby rejected.
DATED: Honolulu, Hawai‘i, November 21, 2007.
FOR THE COUR}
dered by: Moon, €.J., Levinson, Nakayama, Acoba, and Duffy, 39.
|
07e31fcb-b5a4-4054-bf13-6eccdd92e54d | State v. Sunderland | hawaii | Hawaii Supreme Court |
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
~000---
STATE OF HAWAT'Z, Plaintiff-Appellee, ~
ve ‘ze 8
= =
SF
=m
S
JOSEPH SUNDERLAND, Defendant-Appellant. ~~
sO
3 =
No. 26641 Ss
S
MOTION FOR RECONSIDERATION
(REPORT NO. H-54084)
OCTOBER 19, 2007
ACOBA,
AND DUFFY, JJ.
C.J., LEVINSON, NAKAYAMA,
Moon,
Defendant-Appellant Joseph Sunderland’ s motion for
reconsideration of the published opinion filed on September 21,
Deborah L. Kim, Grr—
Deputy Public Defender,
For defendant-eppeliant .
Recne> ee
St RO
Yarwe €, Daddy fr *
2007, is hereby denied.
|
e7306af0-c99d-4331-9449-df8d012a9153 | Flournoy v. State | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER
NO. 26339
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
aad
STATE OF HAWAI'I, Respondent~Appellee.
APPEAL FROM THE SECOND CIRCUIT COURT
(5.P.P, NO. 03-1-0011)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, and Nakayama, JJ.
and Accba, J., concurring with’ whom Duffy, J., joins)
Defendant-Appellant Calvin Flournoy, Jr. ("Flournoy"),
appeals from the second circuit court's! Order filed on
December 29, 2003, denying his “(Hawai'i Rules of Penal Procedure
(CHRPP*) Rule] 40 Petition to Vacate, Set Aside or Correct
Illegal Sentenc
On appeal, Flournoy argues that the circuit court erred
in denying his petition inasmuch as: (1) the circuit court's
imposition of four consecutive twenty-year terms was not based
upon findings of fact made by a jury, in violation of Apprendi v.
New Jersey, $30 U.S. 466 (2000); (2) his conviction of four
counts of Sexual Assault in the First Degree violated his
protection against double jeopardy; (3) defense counsel rendered
ineffective assistance by failing to investigate the charges
brought against him; (4) his privilege against self-incrimination
was violated inasmuch as he was under the influence of drugs when
he pled no contest; and (5) the circuit court’s imposition of
four consecutive twenty-year terms breached his plea agreement.
Upon carefully reviewing the record and the briefs
‘The Honorable Shackley F. Raffetto presided
7 NOTFOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***_
submitted by the parties and having given due consideration to
the argunents advanced and the issues raised, we hold as follows:
(2) The imposition of consecutive terms of
imprisonnent based upon facts not found by a jury did net violate
Flournoy’s sixth amendment right to a jury trial. A court may
order consecutive rather than concurrent terms without infringing
upon a defendant’s sixth amendment right to a jury trial. State
wa Kahapea, 111 Hawai'i 267, 280, 141 P.3d 440, 453 (2006)
(holding that Defendant-Appellant’s five ten-year terms of
imprisonment running consecutively does “not deprive him of his
right to a jury trial as interpreted by the United States Supreme
Court in Apprendi and Blakely [v. Washington, 542 U.S. 296
(20061);
(2) Flournoy previously alleged in his first Rule 40
petition that (a) the prosecution violated his protection against
double jeopardy, (b) he received ineffective assistance from his
defense counsel, and (c) his privilege against self-incrimination
was violated. The circuit court denied that petition on January
7, 2003 and he did not appeal the denial of that order.
‘Therefore, these claims were ruled on, and, under Rule 40(a) (3),?
he was not entitled to raise the same claims in his second MRPP
40 petition; and
(3) The circuit court’s imposition of four consecutive
twenty-year terms did not breach the plea agreement inasmuch as
the circuit court was not bound by the terms of the plea
£ HREP Rule 40(a) (3) (1993) provides, in pertinent part, “Rule 40
Proceedings shall not be available and relief theresnder shall not be granted
Where the issues scught to be raised have been previously ruled upon of were
Naived.”
2
ST NOIFOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **°__
agreenent,? and the record does not reflect that the prosecution
breached the plea agreement during Flournoy’s sentencing
proceeding. Therefore,
IT IS HEREBY ORDERED that the circuit court’s
December 29, 2003 Order denying Flournoy’s HRFP Rule 40 petition
is affirmed.
DATED: Honolulu, Hawai'i, November 1, 2007.
on the briefs:
Calvin Flournoy Jr.,
Defendant-Appellant pro se
Artemio C. Baxa, Ate Bleerise
Deputy Prosecuting Attorney,
for Plaintiff-Appelle
Stave of Havel’! Dassen Calne
I concur in the result only.
You 6 Dag.
* Seg HRPP Rule 13(e) (1) (1993) ("The court may participate in
discussions leading to such ples agreements ond may agree to be bound
reby.") (Emphasis scded.)~
3
|
3d95cadd-bf46-46c3-ba14-5f09a6ef71c8 | State v. Klie. ICA s.d.o., filed 07/19/2007 [pdf], 114 Haw. 301. S.Ct. Order Accepting Application for Writ of Certiorari, filed 12/20/2007 [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OP THE STATE OF HAWAT'T
000 ==~
STATE OF HAWAI'I, Respondent /Plaintif£-Appellee,
THOMAS E. KLIE, Petitioner /Defendant-Appellant
No. 27992
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD CR. NO. 06078163) ix
DECEMBER 27, 2007
1856 Wy 42 930.002
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFF®| JJ
OPINION OF THE COURT BY MOON, C.J.
on December 20, 2007, this court accepted a timely
application for a writ of certiorari, filed by
petitioner/defendant-appellant Thomas E. Klie on Decenber 4,
2007, requesting that this court review the September 5, 2007
judgment of the Intermediate Court of Appeale (ICA), entered
pursuant to its July 19, 2007 summary disposition order.
the ICA affirmed the District Court of the First
via his no
‘Therein,
Circuit's? May 19, 2006 judgment, convicting Klie
contest plea -- of and sentencing him for the offense of street
‘The Honorable Lono J. Lee presided over the underlying proceedings
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SSS
solicitation of prostitution, in violation of Hawai'i Revised
Statutes (HRS) § 712-1207 (Supp. 2006), quoted infra,
(hereinafter, street solicitation].
In his application, Kiie essentially reasserts the sole
argument made in his direct appeal, namely, that the district
court erred in denying his motion for a deferred acceptance of no
contest (DANC) plea, filed pursuant to HRS § 853-1 (1993), quoted
Anfza. specifically, Klie contends that a DANC plea is available
in street solicitation cases, and the district court, therefore,
committed error in finding that it lacked the discretion to grant
the motion. Based on the discussion below, we hold that the Ica
erred in concluding that the district court properly denied
Klie's motion for a DANC plea. Consequently, the May 19, 2006
judgment is vacated, and the case is remanded to the district
court for reconsideration of Klie’s motion consistent with this
opinion.
T. BACKGROUND
A core ict Court
On May 18, 2006, the respondent /plaintif£-appellee
State of Hawai'i (the prosecution) orally charged Klie as
follows:
lola or about February 23, 2006, in the City and County of
Honolulu, State of Hawai't, while within the boundaries of
Waikiki and while on any public property, [klie) did otter
OF agree to engage in sexual conduct with another person in
return for a fee, thereby committing the offense of [altreet
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in West’s Hawai'i Reports and the Pacific Reporter
[slolicieatior in Waikiki.) in violation of [lection
712-1207 subsection (1) of the (HRS."]
That same day, Klie entered a plea of no contest.’ The
Aistrict court accepted Klie’s plea, whereupon Kite moved for a
DANC plea, pursuant to HRS § 853-1.‘ Defense counsel argued
that: ”
Based upon ay review of State v.lamilil, €7 Hawai'i 102,
952 P.24 390 (2998), dicceseq fully infra.) the supreme
court had indicated that if a charge allows for probation as
ible sentence that that would permit the deferes ples
a in thie aituation
Kithough the statute(, Lae; MRS § 722-1207(4);] talks
about shall ("be sentenced fo a mandatory term of thirty
Gays imprisonment,"] there ie also the possibility of the
probation, (referring to HRS § 712-1207(5), quoted infra.)
find based on that, and I think the prosecutor would agree,
Mr. Kise would qualify for all purposes. ie'e never been
arrested or convicted of anything else in his life. He
nose! citizen
Tals lo a situation that certainly would never occur
again and he does « lot of good in his practice helping out
with regara to emergency care in the Brome, in rather
Indigent areas, tough areas as an emergency doctor. Based
fon that, we would asx the [court to deter acceptance of the
Bo contest plea.
* wes § 712-1207(2) provides that “(i]t shall be unlawful for any
person within the boundaries of Waikiki and while on any public property, to
Sefer or agree to engage in sexual conduct with another person én retur® for a
fee." “Street solicitation is a petty misdemeanor. HRS § 732-2207(4)
» Prior to its acceptance of the plea, the district court engaged in =
colloguy with Klie to determine whether he entered the plea knowingly,
voluntarily, and intelligently, and whether he understood the consequences
thereof.
+ Section 953-1 provides that a motion for @ DANC plea may be made:
(2) When a defendant voluntarily pleads guilty or
holo contendere, prior to commencement of trial,
to 2 felony, misdemeanor, or perty nisdenesnor;
(2) Tt appearn to the court that the defendant i2
not likely again to engage in a criminal course
of conduct; and
(3) The'ends ‘of Justice and the welfare of society
do not require that the defendant shall
presently sutfer the penalty impoaed by law,
the court, without accepting the plea of nolo contendere or
fentering & judgnent of guilty and with the consent of the
Getendant and atter considering che recommendations, if any,
of the prosecutor, may defer further proceedings.
3
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SSS
In opposition, the prosecution asserted tha
in regards to sentencing, your Honor, {the prosecution) will
be asking for a five bundved dollar fine inthis case and
£ix months probation. the [prosecution] 's reading of the
BLL is that {[,] when a statute, when the
sentencing schene is very specific and mandatory, in this
case mandatory use the word shall, the (elourt has no
Siseretion to go beyond the scope of the sentencing scheme.
Here in this case, it’s either jail of probation, your
Honor. And based upon the reading of state vy, Hamill, your
Honor, when the scheme in mandatory and it's specific,
deferral is not an option at this time, your Konor.
‘The district court denied Klie’s motion, ruling that:
‘The position of this {clourt as counsel you are aware after
pretrial in thie matter that Tagree with the
(prosecution) 's position in this case, okay.” fortunately
for Dr. Klie, T don't doubt the good you do with your
Practice. However, this statute is specific and does
indicate that. However, you would be entitied to probation
and jail certainly would fot be appropriate in thie case-
In other words, the district court believed that it had no
Giscretion to entertain Klie’s motion for a DANC plea.
Thereafter, the district court sentenced Klie to six months’
Probation and ordered him to pay various fines and fees. The
district court filed its judgment on May 19, 2006. Klie filed a
timely notice of appeal on June 23, 2006.
B. Appeal Before the ICA
On direct appeal, Klie maintained that the district
court erred in finding that it had no discretion to consid
granting his motion for a DANC plea. Klie argued that, because
“the offense charged is probationable, (DANC] ple
may be
considered by the [district] sentencing court." The prosecution
responded that the subject statute's sentencing scheme would not
Permit DANC pleas, discussed in more detail infra.
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
On guly 19, 2007, the ICA issued its summary
disposition order, wherein it concluded that:
Upon careful review of the record and the briefs aubmitted
by the parties and having given due consideration to the
arguments. advanced and the issues as raised by the parties,
te conclude that the district court properly denied Ki
otion for a DANC plea. MRS § 712-1207(2) & (4); State v.
‘a law. 75, 037 P.24 776 (1392); Statenve
HAMLLL, 87 Hawai'l 202," 952 P.24 390 (1930)
ICA's Sunmary Disposition Order (SD0) at 2. Thereafter, on
Septenber 5, 2007, the ICA entered its judgment on appeal. on
Decenber 4, 2007, Klie filed his application, which this court
granted on Decenber 20, 2007.
TT. STANDARDS OF REVIEW
A. Writ of certiorari
This court reviews the decision of the Ica for
(2) grave errors of law or of fact or (2) obvious inconsistencies
in the decision of the ICA with that of the supreme court,
federal decisions, or ite own decisions and whether the sagnitude
of such errors or inconsistencies dictate the need for further
appeal. HRS § 602-59(b) (Supp. 2006).
B. Motion for a DANC Plea
‘The grant or denial of a motion for a DANC plea ie
within the discretion of the district court and will not be
Aisturbed unless there has been manifest abuse of discretion.
State vi Tom, 69 Haw, 602, 603, 752 7.24 597, 597 (1988). “An
abuse of discretion occurs if the trial court has clearly
exceeded the bounds of reason or has disregarded rules or
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
principles of law or practice to the substantial detriment of a
party litigant.* State v. Davia, 87 Hawai't 249, 253, 953 P.2d
1347, 1351 (1998) (internal quotation marka and citation
omitted) .
C. Statutory Construction
‘The interpretation of a statute is a question of law,
which is reviewed on appeal de novo. State v. Wells, 78 Hawai't
373, 376, 894 P.2d 70, 73 (1995).
IIT. DISCUSSION
on application, Klie essentially reasserts the argument
he made before the district court and the ICA, i.e., that the
district court erred in refusing to grant his motion for a DANC
plea. Klie’s entire argument consists of the following four
points:
(2) The question presented 1s whether the [district] court
is prohibited fron accepting a deferred plea under
limms'§) 853-1 for violation of [uas §] 742-3207
offering £0 engage in sexial conduct with another
person on public property in Waikiki, Hawal'l
(2) THAie) pled'no contest £0 the charge of HS [5]
712-1207, and the [district] court refused to consider
or grant’ (Kiie]’s motion £0 defer acceptance of his
plea, because the {district} court stated it had no
Power to do so under the statute
(3) The [district] court refused co consider the granting
ofa motion for deferred plea to Violation of HRs (8)
12°30,
(4) tn (State v. mamili,) 07 Hawai'i 192, 982 P.24 290
(1998), the Suprene Court of Hawai'i stated BANC pleas
are not applicable where offenses charged are non-
probationable. Under MRS (5) 712-1207(8) (, quoted
Infra,] «defendant nay be placed on probation for
violating the street solicitation statute in maikikt,
Hawai'i, therefore, a court should have the power to
Grant 4 deferred plea for violation of [ims s)
iiz-a2070)
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
The sole issue, therefore, is whether the charged offense with
respect to which Klie ent
1 a no contest plea is excluded from
the possibility of deferral under HRS chapter 853.
Preliminarily, we observe that, when construing a
statute, this court “foremost obligation is to ascertain and give
effect to the intention of the legislature, which 1s to be
obtained primarily from the language contained in the statute
itself." State v. Valdivia, 95 Hawai'l 465, 472, 24 P.3d 661,
668 (2001) (citation omitted). ‘where the statutory language ia
unambiguous, the court's sole duty is to give effect to its plain
and obvious meaning.” State v. Sakamoto, 101 Hawai‘ 409, 412,
70 P.3d 635, 638 (2003) (citations omitted).
HRS chapter 853 sets forth the procedure for the
acceptance of, inter alia, a DANC plea. As noted above, the
district court
may defer final adjudication of a criminal cage vhen (2) a
Gefendant voluntarily pleads guilty or no contest prior to
Che comencenent of trial and (2) the court concludes (a)
Chat the defendant is not likely to engage in a criminal
course of conduct and (b) that the ende of justice and
welfare of society do not require that the defendant
mnt ly suffer the penalty imposed by lav. RS § 033~
However, sluch deferrals are constrained by HRS
which sets out the circunstances under which
Chapter e53 “eball not apply."
Id. at 412, 70 P.34 at 638. Specifically, DANC pleas do not
apply when “(t}he offense charged is nonprobationable.” HRS
§ 853-4(5) (emphasie added) .
In this case, Klie pled no contest to the offense of
street solicitation, in violation of HRS § 712-1207(1). The
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in West's Hawai'i Reports and the Pacific Reporter
penalties for violating section 712-1207 are set forth in HRS
§§ 712-1207(4) and (5), which provide in relevant part
(4) Wotwithstanding any law to the contrary, any
person violating this section shall be guilty of « petty
Risdeneanor and shall be sentenced to a mandatory tern of
thirty days imprisonment. The term of imprisonment shall be
imposed imediately, regardless of whether the defendant
appeals the conviction, except as provided in subsection
e-
(5) At an option to the mandatory term of thixty dave
mu finds ie
‘5 BE a perioa oes
lHoaths. subject to the mandatory condition chat the
Gefendant observe geographic restrictions that prohibit the
Gefendant from entering or remaining on public property. in
Waikiki and other areas in the State designed by county
ordinance during the hours from € p.m. £0. a.m. Upon any.
violation of the geographic restriccions by the defendant’
the court, after Rearing, shall revoke the defendant's
probation and inmeaiately impose the mandatory thirty day
Eerm of imprisonment.
(Bnphasis added.) By the express terms of subsections (4) and
(5), the offense under HRS § 712-1207 is probationable and, thus
is not excludable under HRS § @53-4(5)
This court's case law lends further support to the
above conclusion. In State v. Tom, 69 Haw. 602, 752 P.2d 597
(1988), this court held that the trial court did not err in
denying @ DANC plea when the statute at issue -- HRS § 291-4(b)
(2985) (driving under the influence (DUI))* -- did not afford the
* ums § 291-4(b) provides in part that:
1A person comitting the offense of (DUI) shall be sentenced
fas follows without possibility of probation or suspension of
(1) For the first offense, or any offense not preceded
within a five-year period by 2 conviction under this
section, by:
() A’ fourteen-hour minimum alcohol abuse
Fehabilitation program
(a) Mineey-day prompt. susp
absolute prohibition from operating a motor
(continued...)
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in West's Hawai'i Reports and the Pacific Reporter
defendant a probation sentence. Id. at 603, 752 P.2d at 598. In
that:
|, the trial court ruled that: (1) it lacked the
discretion to grant a DANC plea because HRS § 853-4(5) provided
that such a plea was not available in cas
2 involving
nonprobational offenses; (2) the sentencing provisions of HRS
§ 291-4 called for mandatory sentencing without the possibility
of probation; and (3) allowing a DANC plea in DUI cases would
enable a defendant to avoid the enhanced sentencing schene
mandated by the DUI statute. Id. at 603, 752 P.2d at 598. on
appeal, this court, after holding that the plain language of the
statutes involved prohibited the grant of a DANC plea in a DUI
case, stated:
‘The DUI statute provides for an enhanced sentencing schene
for multiple offenses within a five year period. A repeat
Offender given 2 DANC plea on the first offense could thus
‘eecape enhanced sentencing under the DUI statute by
Committing a second offense after DANC jurisdiction had
expired but within the five year period of the DUI
sntencing achene. This result would contravene the
Eecognized serious aature of DUT offense.
Id. (citation omitted).
‘Thie court again reviewed a DANC plea in Dannenberg, a
case cited by the ICA. In Dannenberg, the trial court granted a
*(. continued)
vehicle during suspension of License [;]
(©) Any one or more of the following:
Ui) “"Seventy-txo hours of commialty
service work; oF
(44) Not Jess than forty-eight hours of
imprisonment; oF
(Uy X Eine of not 1
‘than $1, 000.
than 6150 but not nore
(Emphasis added.)
0 Ten. 69 Haw. at 603, 752 P.2d at 588.
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SSS
DANC plea in a prostitution case, which was charged under HRS
§ 722-1200 (1985). At the time of the offense, HRS § 712-1200(4)
set forth the sentencing scheme in prostitution cases and
provided in relevant part that:
Notwithstanding any other law to the contrary, &
person convicted of committing the offenses of presritution
Shall be sentenced as follows
(a) For the first offense, a fine of $500 and the
Person may be sentenced to a term of imprisonment of no more
than ehirey' days (+)
(b) For any subsequent offense, a fine of $500 and a
term of imprisonment of thirty days, ‘without possibility of
suspeasion of sentence or probation.
74 Haw. at 79-80, 837 P.2d at 778 (emphases omitted). In
determining whether the aforementioned sentencing scheme
prohibited a DANC plea, this court initially stated that:
In State v. Bicel, 66 Haw. 101, 657 P.24 1026 (1983), we.
interpreted (nJotwithstanding any other law to the
contrary" in the above statute as language "taking aay the
trial court's power to grant (DANC] pleas in prostitution
caves." (Zd.] at 102, 657 P.24 at 1626. Today we affirm
that holding and clarity cur reasoning.
Id. at 80, 837 P.2d at 778 (original brackets omitted). In so
doing, this court reviewed the relevant legislative history, id.
at 81, 837 P.2d at 779, observing that “[t]he [legislative
intent was clearly to limit discretion of the trial court in
sentencing prostitution offenses and to provide a mandatory
sentencing structure unlike that for other petty misdemeanors.”
Ad. Consequently, this court reasoned that, “[i]f trial courts
were permitted to grant DANC . . . pleas, the mandatory fine for
first time offenders anticipated by the legislature would become
no more than a discretionary fine.” Id, at 62, 837 P.2d at 779.
-10-
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‘Thereafter, in Hamili, a case relied upon by both Klie
and the ICA, this court noted that, after the issuance of
Dannenbera, the legislature amended HRS § 712-1200(4) in 1993 to
allow the acceptance of DANC via its elimination of the phrase
snotwithstanding any other law to the contrary.” 87 Hawai'i at
106 n.5, 952 P.2d at 394 n.5. In Hamili, the defendant pled no
contest to the offense of prohibited fishing with gill nete, in
violation of HRS § 168-30.2(a) (2) (2993). Id. at 103, 952 P.24
at 391. The defendant then moved to defer his plea, which was
granted. Id, at 104, 952 P.2d at 392. On petition for a writ of
mandamus, thie court held that the district court abused its
discretion by deferring the defendant's plea, explaining that
‘4 DANC plea is unavailable for persone convicted of
Violating the gill net fishing statute. After conviction,
‘The use of the vero "shall" signals that this is a manaatory
sentencing provision. There ig no possible sentence apart
‘fron the three alternatives provided by the statute. The
‘entencine court has discretion in deciding wnich
alternative ig appropriate, but the court ia Limited to the
‘sholces provided. Recause the sentencing court ie Limited
Ko the altermatives expressly counexated in GRs s 180-70.
‘And probation in not an enumerated alternative, the offense
for which the sentence is imposed is nonprobationabie.
‘Thus, wRS§ 053-4 (5) which provides that the DANG plea is
not applicable where the offense charged is
nonprobationable, prohibits the alloy
(Phe
among three alzernatives, whieh do not
Consequently, the (aistrict court] manifestly abused (ité]
Aiscretion By alloving [the defendants] a DANC ples
Id. at 107, 952 P.2d at 395 (emphases added) (original emphasis
and citation omitted).
Although recognizing Hamili’s holding that the offense
under the gill net fishing statute was a nonprobationable offense
ue
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because probation was not an available sentencing option, the
Prosecution, on direct appeal, argued that the subject etatute’s
mandatory sentencing scheme preclude
a DANC plea. The
Prosecution grounded its contention upon the fact that HRS § 712-
1207(4) contained the phrase *[n]otwithstanding any law to the
contrary," which, under Rice and Dannenberg signaled removal of
the trial court’s power to grant DANC. The prosecution -- and
the ICA -- however, overlook the fact that HRS § 712-1200
specifically provides an alternative sentence of probation.
Further, the Dannenberg court did not rely solely upon the
aforementioned phrase to conclude that DANC pleas were
impermissible; in fact, it reaffirmed its holding in Rice and
clarified its reasoning, which reasoning demonstrated that,
because the prostitution statute carried enhanced mandatory
sentencing provisions, a DANC plea would render the mandatory
fine for first time offenders “no more than a discretionary
fine.” 74 Haw. at 82, 837 P.2d at 779
Here, HRS § 712-1207 clearly does not constitute an
enhanced sentencing scheme. Rather, like Hamili, subsections
712-1207(4) and (5) simply provide two alternatives (three in
Hamili) -- thirty days’ imprisonment or probation. “The
sentencing court has discretion in deciding which alternative is
appropriate, but the court is limited to the choices provided.”
Hamili, 87 Hawai'i at 107, 952 P.2d at 395. Because the
sentencing court is limited to the alternatives expressly
waz-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
enumerated in the subject statute, and probation ig an enumerated
alternative, the offense for which the sentence is imposed ia
probationable. Thus, we believe that HRS § 853-4(5), which
states that DANC is inapplicable when the offense charged is
nonprobationable, does not apply in the instant case.
Notwithstanding the clear and unambiguous language of
the subject statute, the prosecution -- on direct appeal and
relying on legislative history -- argued that the legislature did
not intend to permit DANC pleas
‘The legislature finds that the level of prostitution in
aikiki has become intolerable. One ie unable to walk down
the trects without repeatedly being accosted for purposes
of solicitation. Moreover, the legislature finds that =
igh level of prostitution is nearly alvays followed by an
increase in other criminal actsvitiee relating to theft,
robbery, assault, and drugs. Such activity is abhorrent to
Fesidente and visitors alike and 1s driving both from one of
the state's prine attraction. efforts by ehe Honoluly
police departnent to crack down on prostitucion and other
Criminal activity in the Waikiki area have had Limited
effect. The legislature further finde and declares that
more stringent measures are necessary to preserve Waikiki as
foprine ateraction and to protect the health, safety, and
Weléare of residents and visitors to Waikike
for prostitution
Ae a mandatory condition of probation and bail, defendance
must observe geographical restrictions prohibiting them from
entering or walking on the public
Waikiki during the hours from € p. Tra
Gefendant resides in Waikiki and chooses to remain in
Waikiki during the prohibited hours, the defendant must
therefore stay off the streeta and sidevalke during those
hours. Alehough the restriction covers + large physical
apace, it is narrowly tailored to cover only the hours most
Closely associated with the crime. Adaitionally, be
Festriction is sufficiently definite to provide the average
person with adequate notice of what behavior is prohibited.
(Quoting 1998 Haw. Sess. L Act 149, § 1 at $34.) (Format
altered.) Based upon the above findings, the prosecution argued
that permitting DANC pleas for street solicitation offenses is
-13-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
a sSssssseSSSSSSSSS
incompatible with the legislature's express findinge that street
solicitation in Waikiki has becone intolerable and poses serious
threats to the health, safety, and welfare of residents and
visitors
‘This court, however, hae previously stated that, where
the statute is clear and unambiguous, it is bound by its plain
and unambiguous language:
We cannot change the language of the statute, eupply a want,
cor enlarge upon it in order to make it auit 4 certain sate
of facta. We do not legislate or make lave.” Even when che
court is ‘convinces in ies ow mind that the (liegislatuce
Feally meant and intended something not expressed by the
phraseology of the [alct, it has no authority to depart from
the plain meaning of the language used.
Sakamoto, 101 Hawai'i at 413, 70 P.3d at 639 (citations omitted).
Here, the prosecution did not assert that HRS § 712-1207 is
ambiguous; yet, it resorted to an examination of the legislative
history. Nevertheless, even assuming arguendo that the statute
is ambiguous, the legislative history further supporta the
conclusion that DANC pl The aforementioned
are permissibl
Purpose clearly acknowledg
that probation is an alternative
option under HRS § 712-1207 -- with the added enhancenent of
Geographical restrictions. There is no indication from the
legislature that it intended to limit the district court's
discretion in sentencing street solicitation offenses. Indeed,
HRS § 712-1207(5) empowers the district court to determine
whether probation “is warranted based upon the defendant's
record."
nia
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Consequently, we hold that the ICA erred in eunmarily
affirming the district court's refusal to consider Klie’s motion
for a DANC ple
IV. CONCLUSION
Based on the foregoing, we vacate the May 19, 2006
judgment and remand this case to the district court for
reconsideration of Klie’s motion for a deferred acceptance of no
contest plea consistent with this opinion.
Scot Stuart Brower, for
pet itioner/defendant-appellant,
on the application
Daniel H. Shimizu, BaP hhrinmae
Deputy Prosecuting Attorney,
for respondent /plaineite- Presets Conran
appeliee
Yoon 6. Oubloith
-15-
|
59bb07f2-a325-419b-9c72-227cc56be677 | Jou v. Dai-Tokyo Royal State Insurance Company. J. Acoba concurring in the results only. | hawaii | Hawaii Supreme Court |
* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER +
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
00.
EMERSON M.F. JOU, M.D., and as to Some Claims, on Behalf of the
Class of Others Similarly Situated, Plaintiff-Appeliant,
DAI~TOKYO ROYAL STATE INSURANCE COMPANY, LIMITED and LAWRENCE M.
REIFURTH', as the Director, State of Hawai'i Department of
Commerce and Consumer Affairs, Defendants-Appellees,
and
JOHN DOES 1-50, DOE ATTORNEYS 1-50, DOE CORPORATIONS 1-10; DOE
PARTNERSHIPS 1-10, and DOE GOVERNMENTAL ENTITIES 1-10,
Defendants.
NO. 26310 ; ™
APPEAL FROM THE FIRST CIRCUIT coURT |; c
(crv, No, 03-1-1227) &
NOVEMBER 16, 2007
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.
AND ACOBA, J., CONCURRING IN THE RESULT ONLY
OPINION OF THE COURT BY NAKAYAMA, J.
Plaintiff-Appellant, Emerson M.F. Jou, M.D. (*Jou"),
appeals from the first circuit court's! December 17, 2003
judgnent in favor of Defendant~Appellants, Dai-Tokyo Royal State
Insurance Company, Limited (“DTRIC") and Lawrence E. Reifurth in
his capacity as the director of the Department of Connerce and
Consuner Affaire (“DCCA”), State of Hawai'i (“the director”). On
44 Roles of Appellate Frocesure ("HRAF*) Rule
en cubetivures
fark E, hecktenueie, an hie offieses cepacsty,
Pursuant
43(c) (2000), Lawrence Ms Fs
inetant appeai in place of
‘The Henereble Eden Elizabeth Hite presiced
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
appeal, Jou presents the following points of error: (1) the
circuit court reversibly erred by denying his motion for recusal;
(2) the circuit court reversibly erred by denying his oral motion
1 from the denial of his motion for
for an interlocutory app
recusal; (3) the circuit court reversibly erred by denying his
request to amend the complaint; (4) the circuit court erroneously
granted sunmary judgment in favor of the director inasmuch as his
Geclaration in support of summary judgnent was insufficient; (5)
the circuit court erred by granting DIRIC’s motion to dismiss, or
for summary judgment, inasmuch as “[t]he court was violating
state law [sic] of equitable tolling, the right to sue insurers
in tort notwithstanding administrative proceedings, and settled
law of third party beneficiaries{]": (6) the foregoing errors
violated his constitutional rights to equal protection and due
process of law uncer the state and federal constitutions; and (7)
“[t}he first circuit, by repeatedly assigning {Jludge Hifo to
pppellant's cases is creating @ ‘conduit court’ bent on damaging
Dr. Jou as much as possible on his way to the appellate courts.”
Also before this court is a motion for damages and costs filed by
the director, pursvant to Hawai's Rules of Appellate Procedure
(CHRAPY) Rule 38, asserting that Jou filed a frivolous eppeal.
For the following reasons, we conclude that Jou’ s
points of error are without merit. However, we disagree with the
Girector thet Jou's appeal is frivolous. Accordingly, we affirm
the judonent appealed from and deny the director's motion for
Genages and costs.
1. BACKGROUND
On May 30, 2003, Jou filed a “Complaint In Tort For
* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
Insurer Bad Faith” in the first circuit court against DIRIC and
the dixector. The case was assigned to the Honorable Judge Eden
Elizabeth Hifo on June 4, 2003.
Jou filed a first amended complaint on June 12, 2003.
Therein, he asserted four causes of action. Jou first claimed
that DTRIC breached a duty of good faith and fair dealing oved to
him as an intended third-party beneficiary by engaging in the
following unfair and deceptive business practices:
[DIRIC] . . . (a) failed to adequately address concerns stated in
[3eu's] communications about the balance due; (b) failed to
provide [Seu] with a Feasenable explanation for delays on claine
Unresolved for thirty cays; (c) die not attempt in geod faith to
effectuate settienentes (6) made payments to. [Jou) not accompanied
hy s etstenent setting ferth the coversge onder which the payments
Mere nade; (e] reqeired duplicetive proofe of loss from [Jou], &
physician (2) failed to prenptly provice an explanation of the
Batis in the ingurance pelicy fer the Genial or partial payment,
end (g) sent the equivalent ef “final” er "paid in full" partial
Beymente te [Joe]
Second, Jou requested declarstory relief, asserting that the
Gizector’s staff utilized “‘old boy’, ‘back door’, and other
corrupt procedures which deprive[d] [Jou] and others siniiarly
situated of adequate notice and a meaningful opportunity te be
heard a to their liberty and property rights... .” Jou
asserted further that the DCCA's “administrative hearing system,
in its entirety, on the face of its statutes rules and
procedures; and, as this schene is applied to [Jou], and others
ly situated, violates [Jou's] property and liberty rights
. and is completely unworthy of public confidence.” Jou's
third cleim requested injunctive relief against the DCCA and its
erting that “ell administrative remedies
hearings officers,
for [Jou) and others similarly situated, . . . are futile, void
and inadequate, and should be enjoined. . . .” Finally, Jou’s
FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER.
fourth claim alleged the existence of a numerous Class of
individuals who suffered similar injuries.
on July 3, 2003, the director filed a “Motion For
Summary Judgment Or Dismissal” asserting that (1) the Hawai'i
related
Administrative Procedures Act ("HAPA”) and the DCCA
procedural rules are not unconstitutional, (2) Jou’s complaint
contains only conclusory accusations of corruption, and fails to
state specific facts and circumstances that, if true, would
support a due process violation, (3) Jou may not attempt to
circumvent the contested case hearing procedure by declaring ‘
corrupt or unconstitutienal, and (4) the court lacks subject
matter jurisdiction over Jou's clains for declaratory and
injunctive relief.’
on July 10, 2003, Jou filed @ “Motion To Recuse Or
Disquality The Honorable Eden Elizabeth Hifo[.]” Jou asserted
that Judge Hifo rendered several “questionable” and adverse
rulings against him in prior civil cases in which she presided
that cumulatively demonstrate her bias against him end his
counsel.‘
on August 1, 2003, the circuit court filed an order
denying Jou's motion for recusal or disqualification. The order
additionally denied an oral motion for interlocutory appeal,
apparently raised st @ hearing on the motion for recusal or
disqualification. Also on August 1, 2003, the circuit court
filed an order granting the director’s motion for summary
cee filed & menorendun in epposition cn July 14, 2003.
«the dizecter filed 2 mencrancun in oppesition en July 16, 2003
DIRIC filed # sencrencun in oppesitien on duly 15, 20
4
HAWAI REPORTS AND PACIFIC REPORTER *
FOR PUBLICATION IN WES
judgment.
On August 14, 2003, DTRIC filed a motion to dismiss
Jou’s first amended complaint, or for summary judgment.
Therein, DTRIC asserted that (1) Jou elected to pursue
administrative remedies for his bill disputes with DTRIC and has
not exhausted those remedies; (2) certain claims are barred by
the statute of limitations; and (3) Jou is not DIRIC’s insured
and therefore has no standing to assert a claim for bad faith
against DTRIC.*
on September 28, 2003, Jou filed a motion for leave to
amend his first amended complaint in order to assert an
additional claim based upon United States v, Allstate, €9 Hawai's
290, 740 P.2d $50 (1987).
On Novenber 13, 2003, the circuit court filed an order
denying Jou’s moticn to amend his first amended complaint.
On November 16, 2003, the circuit court filed an order
granting DTRIC's motion for dismissal or summary judgment. In
its order, the circuit court provided the following conclusions:
1. _DPRIC's Motion to Disniss First Anended
Complaint or, in the Alternative, Motion for Summary deagnent is
GRANTED ae tO the clains arising from Dr. cute treatnent of Ny
Agbeyens, A. Agbayent end Kivem! Dixon by virtue of the starute of
Linitarione
2. DTRIC's Motion to Dismies First Anenced
Conplaint cr, in the Alternative, Motion for Scmmary Josgment ie
GRANTED as to those claine regarding payment of bills under the
no-fault eatute se Or. Jov elected admnistrstive renecies.
Se “SoRIc'® Notion to Dismiss First. Anensed
Conpleint cr, in the Alternative, Motion for Summary Jucgnent is
GRANTED ae t6 the cleins of bod faith or tortious relief ae the
Frovicer, Dr. los, a¢ en incidental beneficiary to the snsurance
Eentract fer ne-fault benefite, lacks standing te bring a claim
fer bad faith cr tortious relict BERIC.
* 00 £53e6 & menorendum in cppeeitson on Oeteber 3, 20:
«DTIC #iled mencrandun in opposition en Ceteber 8, 7003)
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
The circuit court filed its judgnent in favor of the
director and DIRIC on December 17, 2003. Jou filed @ timely
notice of appeal on Decenber 30, 2003.
TT, STANDARDS OF REVIEW
Motion for Recusal or Disqualification
“this court has adopted the abuse of discretion
standard for reviewing a judge's denial of a notion for recusal
or disqualification.” State v. Ortiz, 91 Hawai'i 181, 188, 981
P.2d 1127, 1134 (1999) (citing State v. Ross, &9 Hawai'i 371,
376, 974 P.2d 11, 16 (2998)) (internal quotation marks omitted)
(brackets omitted).
Interlocutory Appeal
According to Hawai'i Revised Statutes (“HRS”) § 641-
1(b) (1993), interlocutory appeals “may be allowed by @ circuit
court in its discretion from an order denying a motion to dismiss
or from any interlocutory judgment, order, or decree whenever the
cirevit court may think the same advisable for the speedy
termination of litigation before it.” (Emphasis added.) Because
the circuit court is vested with discretion over the matter, our
review is appropriately limited to the question whether the
circuit court abused that discretion. Cf, Tri-S Corp. v. Western
orld ins. Co., 110 Hawai'i 473, 489, 135 P.3d 82, 98 (2006)
("[T]he circuit court has discretion to grant extensions of tine,
and thus we review its orders in this regard for abuse of that
discretion.”).
¢. Motion for Lea
to Amend the Complaint
“orders denying motions for leave to amend @ complaint
are reviewed for en abuse of discretion.” offi aweiian
é
++ FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER ***
Affairs v. State, 110 Hawai'i 338, 351, 133 P.3d 767, 780 (2006).
D. Summary Judgment
In Kau v. City & County of Honolulu, 104 Hawai'i 468,
92 P.3d 477 (2004), we explained that the following principles
guide our review of a circuit court’s grant of sunmary judgment:
Me review the circuit court’s grant or densel of summary
judgnent de nove. #swai ld) Community Federal Credit Union
Keka, 9¢ Hevar't 213, 221, 11 Psa 1, 9 (2000). The etancard for
Grenting @ motion for summary judgnent is setled
[S)inesry juconent ie appropriate if the plescing
Gepositicns, answers to interrogatories, end admissions on
Eile, together with the affidavits, if any, show that there
is no gensine issue as to any material fact and that the
moving perty se entitied to Judgment as a aatter of law. A
fect as naterial if proof of thet fact wovld have the effect
of eetebisshing or refoting one of the cesential elenents of
Scouse cf action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
noneneving party. Invether words, we must view 611 of the
evigence end the inferences drawn’ therefrom in the Light
ost favorable to the party opposing the neticn
Ta, (citetions snd internal gueteticn marks emitted)
Soon v-City 4 County of Woneluly, $6 Hewas's 233, 246-48,
34e, 385-60 12002) (second elteration in ericinel).
Pas
Ad, at 473-74, 92 P.3d at 482-83 (some brackets added, some in
original). Subsequently, in French v. Hawaii Pizza Hut, Ince,
105 Hawai'i 462, 99 P.3d 1046 (2004), we discussed the particular
burdens of production and persuasion as follows:
‘The burden 18 on the party moving for sunmary judgment
(moving party) to show the sbeence of any genuine isgue ee to all
material fecte, which, under epplicable principles of substentive
Tau, entities the noving party to judgment oss matter of lew.
hit Borden nae two componente
First, the moving party has the burden of producing support
for ite claim that: (1) no genuine issue of materiel facte exists
with sespect te the essential elenente cf the clain or defense
“nich the motion seeks to establish or which the motion questions;
and (2) Eosed cn the unéiepoted facts, it is entitled te sumary
judgment ac a matter of law. Only when the moving party satisfies
ite initial burden of production does the burden shift to the nen
moving party te respond te the netien fer summary Judgment and
te specific fects, se cppesed to general ellegetions,
ent Sesue worthy ef trial.
pertvseion.. This burden siveye renaine with ©
Feguires the neving perty te convince the court tha
ieeve ef S that the roving
he meving party and
FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTE
entitied to sumery judgnent as a aatter of Law:
Ide at 470, 99 P.3d at 1054 (citing GECC Fin. Corp. v. Jaffarian,
79 Hawai'i $16, 521, 904 P.2é 530, $35 (App. 1995) (citations
emitted)).
E. Motion te Dismiss
This court has recentiy applied the following standard
when reviewing a circuit court's order denying a motion to
dismis:
A conplaint choulé net be disniesed for failure to state = claim
Golers it appears beyend coubt thet the plaintiff can prove ne set
ef fecte sn cuppert of his or her claim that would entécie him or
her to relief. We must therefore view @ plaintiff's ccmplaine in
2 light nest favorable te him or her in ofer to devernine whether
the sllegetions contained therein could warrant relief uncer any
alternative theory. For this reason, in reviewing « circuit
nt our coneiderstion ie strictly
Complaint, and we Must deem
In_re Estate of Rovers, 103 Hawai'i 275, 280-81, 61 P.3d 1190,
1195-96 (2003) (citations omitted) (brackets omitted) (ellip:
omitted).
F. Constitutional Law
“We review questions of constitutional law de nove,
under the right/wrong standard.” naka v, Onaka, 112 Hewai‘i
374, 378, 146 P.36 89, 93 (2006).
III. Discussion
A. Motion for Recusal or Disqualification
Jou''s first point of error asserts that Judge Hifo is
biased against him and his counsel and that her refusal to recuse
herself vicleted his right to due process in violation of the
state and federal constitutions. Jou specifically refers this
court to his motion for recusal, filed in the circuit court on
"+ FOR PUBLICATION IN WEST'S HAWAH REPORTS AND PACIFIC REPORTER *
July 10, 2003, in which he presented @ sunmary of multiple
adverse rulings rendered by Judge Hifo. Jou characterizes those
rulings 28 exhibitions of “extrene bias” and “unseemly
favoratiem.” Jou’s point of error is without merit.
It ds well-settled that mere adverse rulings are
insufficient to establish bias. See Bose, 89 Hawai'i at 380, 974
P.2d at 20 (“We have long recognized, however, that petitioners
may not predicate their clains of disqualifying bias on adverse
rulings, even if the rulings are erroneous."); James W. Gl
td. v. Fone, 39 Hew. 308, 316 (1952) (stating that “mere adverse
rulings, even if erroneous[,)” would not constitute @ “basis for
disqualificetion|]”). To the extent that Jou's motion for
recuse] is supported only by examples of adverse rulings in prior
proceedings before Judge Hifo, it did not sufficiently
demonstrate “a bent of mind that may prevent or impede
impartiality of judgment.” Ross, 89 Hawai‘i at 377, 974 P.2d at
17 (citing Wittemore v. Farrington, 41 Haw. 52, $7 (1955)].7 The
record is otherwise devoid of any indicia of bias or prejudice on
the part of Judge Hifo, and Jou’s characterizations of Judge
Hifo!
B. Interlecutory Appeal.
Jou''s second point of error asserts that the circuit
rolings appear to have no basis in fact.
court reversibly erred by denying Jou’s oral motion for an
interlocutory appeal from the denial of his motion for recvsal.
However, the conclusion, supra -- that the record lacks evidence
Although OTRIC asserts other Frecedsral defects in Jev'e motion
for recosei, we de net adcrees then te we have sirescy coneluced thet S00"
point of error i without merit
‘+4 FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
of any bias or prejudice on the part of Judge Hifo -- renders
Jou's present point of error moot.
C. Motion for Leave to Anend the Complaint
Jou's third point of error asserts that the circuit
court erred by denying his notion for leave to anend his first
anended complaint. More particularly, Jou claims that this
jurisdiction follows federal interpretations of Federal Rules of
Civil Procedure (“FRCP”) Rule 15 and that a motion to amend the
complaint in response to @ noticn to dismiss cannot be denied if
the amendment can state legally cognizable claims. DTRIC, on the
other hand, argues that Jou’s propesed second amended complaint
added “nothing substantial to the issues{.]”
A fair reading of Jou's proposed second amended
complaint indicates that Jou desired to supplement a previously
thet he is an intended thirc-party beneficiary
asserted claim
with additional legal authority. To wit, Jou desired to
assert “new” claim under Allstate. However, inasmuch as
Allstate does not support Jou’s assertion of a bad faith tort
claim against DTRIC, see discussion infra, we consequently
conclude that Jou’s proposed amendment would have been futile.
‘See Hiresa v. Burtner, 68 Haw. 22, 26, 702 P.2d 772, 778 (1985)
("in the absence of any apparent or declared reason . . . such as
1. futalsty of the amendment . . . the leave should, as the
roles require, be “freely given.'") (Some ellipses in original
and come added.) (Citations omitted.)
D. The Director’s Motion for Summary Judgment
Jou's fourth point of error asserts that the circuit
court reversibly erred by granting the director's motion for
10
1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER:
summary judgment. He argues that he desixed @ declaration that
“procedures in the DCCA and its rules are corrupted and violate
the state and federal constitutions.” Jou further requested an
injunction against the use of such “corrupt and unconstitutional
procedures.” Jou avers that the director did not meet his burden
of denonstrating the absence of genuine issues of material fact
inasmuch as the director supported his motion for summary
judgment with xerox copies of certain administrative rules. The
dizector counters that Jou hes asserted no specific facts
supporting an “ss-epplied” constitutional challenge, and that his
argunent must be construed as a facial attack on the DCCA's
administrative rules. The director contends that Jou has failed
to dencnstrate that the DCCA’s administrative hearing system is
facially unconstitutional.
We agree with the director. Jou's claim against the
dizector is franed as 2 facial constitutional attack. His first
amended complaint states: “The Director's administrative hearing
system, in ite entir he ¢ rules an
procedures; and, as this schene is applied to Plaintiff, and
others similarly situated, vielates the Plaintiff's property and
Liberty rights as aforesaid and is completely unworthy of public
confidence!.)" (Emphasis added.) Jou did not assert any
specific acts or omissions that limit his claim to an as-applied
challenge. & facial challenge, by nature, implicates no facts in
particular as it is purely @ question of law. See Am. Falls
Reservoir Dist. N Idaho Dep't of i s., 184 P36 433,
441 (Idaho 2007) (
‘purely @ question of law.'") (Citing State v. Cobb, 969 F.2d
® facial challenge to a statute or rule is
ua
FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER,
244, 246 (1998).); Shuser v. State, @59 N.E.2¢ 1226, 1231 (Ind.
Ct. App. 2007) ("Whether a statute is unconstitutional on its
face is a question of law.”); United States v. Quinones, 313 F.3d
49, $9 (2d Cir. 2002) (A challenge to the facial
constitutionality of @ criminal statute is a pure question of
law."). There being no genuine issue of material fact, the
director was only required to persvade the circuit court that the
adninistrative hearing system was not facially unconstitutional
as a matter of law. See Stanford Carr Dev, Co, v. Unity House,
Inca, 111 Hawai's 286, 295, 141 P.34 459, 468 (2006) ("{S)unmary
judgnent is appropriate if the pleadings, depositions, anewers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there ie no genuine issue as to any
material fact and that the moving party is entitled to judgnent
as a netter of law.") (Brackets in original.) (Block quote
formatting omitted.) (Citation omitted.). We therefore disagree
with Jou that the director was required to “demonstrate that if
the case went to trial there was no competent evidence to support
2 judgment for the DCCA Director.” To the extent that Jou offers
no further appellate argunent, he has failed to demonstrate that
the circuit court reversibly erred by granting sunnary judgnent
in favor of the director.
E. DTRIC’s Motion to Disniss or for Sunmary Judgment
Jou's fifth point of error asserts that the circuit
court erred by granting DIRIC’s motion for dismissal, or for
summary judonent, inasmuch as “[t]he court wes violating state
law of equitable tolling, the right to sue insurers in tort
notwithstanding administrative proceedings, and settled lew of
wz
‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
third party beneficiaries.”
1 1 es
For purposes of clarity, we first address Jou's third
sub-argument -- that the circuit court erred by concluding that
he was not an intended third-party beneficiary to the insurance
policy agreements between DTRIC and its insureds.
For support, Jou relies heavily on Allstate. However,
that reliance is misplaced.
In Allstate, Thomas L. Stratham ("Stratham"), an
enlisted member of the United States Navy, was injured in a
motorcycle accident on August 21, 1982, 69 Haw. at 291, 740 P.2d
at $51. The injured servicenan was initially treated at Castle
Memorial Hospitel, a civilian medical facility, then transferred
to Tripler Army Medical Center. Id, The United States
reimbursed Castle Memorial Hospital for the cost of the
servicemen’s medical care and subsequently made 2 claim against
Stratham’s no-fault insurer, Allstate Insurance Company
(walistate”). Id, at 292, 740 P.2d at $51. Allstate tendered a
check in the amount of the reimbursement that the United States
paid to Castie Memorial Hospital but refused to pay the
government for the expenses incurred in connection with the
serviceman's treatment at Tripler Army Nedical Center. Id, The
United States then filed @ complaint in the United States
Id. The district
court granted judgment in favor of Allstate. Id, On appeal, the
District Court for the District of Hawa:
United States Court of Appeals for the Ninth Circuit certified
the question “whether the United States may recover from 5
serviceman’s no-fault insurance cerrier the costs of medical care
‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
furnished in @ government hospital to the serviceman who was
injured in a motor vehicle accident.” Id. at 291, 740 F.2¢ at
ssi.
The United States argued before this court that (1)
“the Hawaii no-fault laws provide @ statutory basis for
recovery”? (2) it is “entitled to recover as 2 third-party
beneficiary of the insurance contract; and (3) Allstate “has
received a windfall and [has] been unjustly enriched and is,
therefore, . . . liable . . . for the costs of (the) health care
provided.” Id. at 294, 740 P.2¢ at $52 (brackets in original)
(ellipses in original).
Initially, we noted that the certified question was
Limited to whether the United States had # stetutory basie for
recovery, and we therefore stated that “we [would] not address
the government's contract and equity argunents separately.” Id.
at 294 n.7, 740 P.2d at $52 n.7. Reviewing the Hawai'i Motor
Vehicle Accident Reparations Act, then codified as HRS chapter
284, we concluded that the United States may recover the costs of
medical care received by Stratham. Id. at 294, 740 P.2¢ at $82.
Under HRS chapter 294, recovery was limited to a
“person, insured” who suffered @ “loss from accidental harm.”
Id, at 296, 740 P.2d at 553-54. Nevertheless, we opined that
denying the United States’ claim was inconsistent with (1)
“chapter 294's declared purpose to create a no-fault system of
reparations,” (2) “ite limitetion of tort lisbility,” (3) “ite
esteblishnent of right te ‘no-fault benefits’ for loss from
accidental harm arising out of the operation of a motor
vehicle[,)" and (4) “the comprehensive scheme designed to provide
4
11" FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
‘a speedy, adequate and equitable reparation for those injured or
otherwise victimized’ by motor vehicle accidents.” Id. at 296-
97, 740 P.2d at S54 (citations omitted). We thus interpreted the
term “person, insured” to include the United States and the term
“loss from accidental harn” to include the expenses incurred by
the United States in connection with Stratham's treatment at
‘Tripler Army Medical Center:
IWle read the terme “person, insured” and “loss from accidental
harm” in HRE § 296-3(6) [{1985)] expancively to effectuate the
bvoned legislative purpose of the Hotor Vehicle Accident
Reparations Act “eo creste s system of reparations for sccicentel
huis and lege arieing from moter vehicle accidents, to compensate
these cenages without regera te fauit, snd co limit tert 1iebility.
for these accigents.”
Ida at 299, 740 P.2d at $56 (citing HRS § 294-1(a) (1985)
(emphasis in original). We added that:
ham) the
[tio atlow [Alletete) to cenand and receive from [str
sme insurance grensun which it receives from al) other
wereely, snc then to Giselei= lisbility for the
Berefite sy Because fuch benefite have been paid
pdatory requirenents of 1am, wou
(@ bring about an
‘Ida at 300, 740 P.2d at $96 (citing United Servs, Auto, Ass'n ve
Dist. Ct. App. 1973) (brackets
Holland, 283 So.2d 381, 386 (FI
in original).
We therefore answered the certified question in the
affirmative. Ide
Jou is, to some extent, correct that his position as a
nedicel services provider is analogous to the United states’
position in Allstate. However, he mischaracterizes the import of
that similarity. As mentioned, the sole question in Alistate wes
whether the United States could recover under the no-fault
insurance statutory scheme then in effect. Indeed, HRS chapter
as
FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER *
294 did not expressly afford medical service providers with a
statutory right of action against insurers. See HRS § 294-3(a)
(1985) (“IE the accident causing accidental harm occurs in this
State, every person, insured under this chapter, and the person's
survivors, suffering loss from accidental harm arising out of the
operation, maintenance or use of a motor vehicle has @ right to
no-fault benefits.”); HRS § 294-4(1) (A) (1985) (cbligating
insurers to pay benefits for accidental harm to “any person .
who sustains accidentel harm as a result of the operation,
maintenance, or use of the vehicle. . - ‘This explains the
need to expansively construe the terms “person, insured” and
“loss from accidental harm.” As such, this court pointed to the
inequity that would result from precluding the United states to
recover its expenses from Allstate in tote.
Here, however, there is no question as to Jou’s
statute: ver. See HRS § 431:10C-304 (obligating
the insurer to pay “the provider of services” on behalf of the
injured insured).' Rather, Jou ergues thet Allstate also
authorizes recovery in tort. In that regard, Jou appeal
suggest that Allstate supports his assertion that medical
providers are intended third-party beneficiaries in the no-fault
automobile insurance context. Jou's reading of Allstate is
incorrect. In Allstate, this court did not address the United
States’ claim that it wes an intended third-party beneficiary,
instead deciding the matter on statutory and equitable groun
Sees. Li, Act 186, $2
e1 Li, Ret
+ uns chapter 286
ar 186, HFS c
i's 2 aut
cd by 1966
ehacted by 1867
ive duly 3, 1966.
ne
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
We also disagree with Jou’s subsequent assertion that
HRS § 431:10C~304 establishes his status as an intended third
party beneficiary.
ordinarily, third-party beneficiary status is a
question of fact as to whether the terms of the insurance policy
reflect an intent to benefit the provider. See Elsner v. Farmers
Ins. Group, Inc., 220 $.W.3d 633, 636 (Ark. 2005) (holding that
the trial court properly granted defendant-appellee’s motion to
dismiss inasmuch as “there [was] nothing in the contract to
indicate that [plaintiff-appellant] was an intended third-party
beneficiary « + United States v. United Servs. Auto.
Ass'n, 431 F.2d 735, 736 (Sth Cir. 1970), cert. denied by 400
U.S. 992 (1971) (concluding that, under the terms of the policy,
the United States was clearly an intended third-party
beneficiery); United States v. State Farm Mut, Auto, Ins. Cou,
485 F.2d 789, 792 (10th Cir. 1972) ("We hold that the United
States qualifies as a third-party beneficiary under the policy .
(Bmphasis added.) ; o . Inc. v. Great Am.
Ins. Cos., 720 F.24 805, 807 (Wash. 1986) (“In order to be 2
third-party beneficiary entitled to recover on an insurance
contract, it is not enough that it be intended by one of the
parties to the contract and the third person that the latter
should be a beneficiary. Both parties must so intend and must
(Emphasis added.); Eercerud v. Progressive Cas. Inga, 453 F.
Supp. 26 1241, 1247 (D. Nev. 2006) ("Whether 2 party is
(Citation omitted.)
considered a specific intended third-party beneficiary must be
gleaned from reading the contract as a whole in light of the
Vv
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
circumstances under which it was entered.) (Citing Canfora v.
Coast Hotels & Casinos, Inc., 121 P.3d 599, 605 (Nev. 2005).)
(Internal quotation marks omitted.); Cal. Bmeraency Physicians
Med. Group v, PacifiCare of Cal,, 111 Cal. App. 4th 1127, 1138, 4
cal. Rptr. 3d 583, 595 (Cal. Ct. App. 2003) (“Third party
beneficiary status is a matter of contract interpretation.”); 17
Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 241:25
at 241-34 (2000) (“In order for a third party to maintain an
action against an insurer, an intent to make the obligation inure
to the benefit of such person must clearly appear in the contract
of insurance, and, if any doubt exists, the contract should be
construed against such intent.”) (Footnotes omitted.).
In resolving the foregcing factual inquiry, this
jurisdiction follows the framework set forth by the Restatenent
{second) of Contracts $ 302 (1981), as follows:
(2) Unless otherwise egreed between pronisor snd promisee, &
beneficiary of @ premise is an intended beneficiary if recognition
of s right te perfermence in the beneficiary 1s appropriste to
effectuate the intention of the parties and either
(a) ‘the performance of the promise will satisty an
cbligation of the promisee to pey money to the Beneficiary: oF
{bl the circonstences ingicate that the promises intends to
give the benesicisry the benefit of the promised performance:
(2) An incidental beneficisry is 9 beneficiary who if not an
intended beneficiary.
See also Hovsh v. Pac. Ins. Co., Ltd., @3 Hawai'i 457, 468 n.15,
927 P.2d 858, E69 n.18 (1996) (quoting Restatement (Second) of
Contracts § 302).
Here, Jou dees not argue that the insurance policy
agreenents in the present case recognize him as @ third-party
0C-304 creates
beneficiary. Rather, he claims that HRS § 43
the alleged quasi-centractual relationship by operation cf law.
BRS § 43
0C-304 states, in relevant part, the
18
“OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
following:
Every personal injury protection insurer shall provide personal
InSury protection benefits for accidental harm as follows
ar Exeepe a ‘ise provides in section 431:10C~
205 (8) ing out of a notor
Vented ‘the witnose
Yecard te fault, ‘to the provider of services on behalf
EL the foljewing persona who sustain sccidental hare
See result of the cperation, neintenance, cr use of
the venscle, an ancunt equs) te the personel inary
protection benefits as defined in section ¢31:10C>
Sie) payable for expences to thet person as
Feeult of the snjury:
Ta). Any person, including the owner, operetor,
Sccupant, cr user of the insured acter vehicles
(B) Any pedestrian (ineluging a bicyclist): or
{e) Any ser or cperstor of © moped ee defines in
secesen 245-3
provides thst this paragraph shall not apply in the
Ease of iniory to cr death of ony operator or
patsenger ef 2 sotercycie or meter scocter ss defined
in section 286-2 arising out of a notor vehicle
accident, expressly provides for in the motor
Yeniele peliey = = =
(Emphases added.) Reletedly, HRS § 431:10C-308.5(f) precludes 2
provider from billing en insured directly or from recovering from
the insured the difference between the provider's full charge and
:10c-
the amount actually paid by the insurer. See HRS § 43
308.5(£) ("The provider of services . . . shall not bill the
insured directly for those services but shall bill the insurer
a2
for a determination of the amount payable. The provider sh
not bill or otherwise attenpt to collect from the insured the
difference between the provider's full charge and the amount paid
by the insurer.”)
Adnittedly, these statutory sections impose an
obligation on the insurer to pay the provider directly. However,
they Go not esteblish Jou’s status as an intended third-party
beneficiary under the Sestatenent (Second) as 2 matter of lew.
The Restatement (Second) eppreach contemplates two
19
FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTE}
types of intended third-party beneficiaries: creditor
beneficiaries and donee beneficiaries. See Restatement (Second)
of Contracts § 302 cnt. b, c.
According to the Restatenent (Second), a third party is
an intended creditor beneficiary under § 302(1) (a) if
“recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and. .
the performance of the promise will satisfy an obligation of the
promisee to pay money to the beneficiary... .” At first
glance, it may appear thet DIRIC’s payment to Jou (performance of
the promise) would satisfy an obligation of the insured (the
promisee) to pay money to Jou (the beneficiary) in exchange for
medical services rendered. However, there is persuasive
authority that the “obligation” referred to must pre-exist the
contract. See Sher v. Cella, 2007 WL 1064163, *6 (App. April 11,
2007) (stating, in relevant part, that a broker was an intended
third-party beneficiary of an acquisition agreement inasmuch as
“the benefit was intended in satisfaction of 2 pre-existing
gblication to that party (the requirement . . . that the Seller
pay 2 commission to the brokers in the event of @ sale). . .”);
E.l. DuPont de Nemoure & Co, v, Rhone Poulenc Fiber & Resin
Intermediates, S.A.S., 269 F.3d 187, 196-97 (34 Cir. 2001)
(under Deleware law, which is the law the parties discuss, to
qualify as @ third party beneficiary or a contract, . . . the
benefit must have been intended ss @ gift or in satisfaction of a
pre-existing obligation to that person .
added.) ; Guardian Constr, Co. v. Tetra Tech Richardson, Inc., $83
A.2d 1378, 1387 (Del. Super. Ct. 1990) (“It is abundantly clear
(Emphasis
20
“OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
to the Court that Plaintiffs were not creditors . . . at the time
the . . . contract was made... ."), Here, the obligation of
the insured to compensate Jou for medical services rendered did
not pre-exist the insurance contract. Thus, Jou does not quality
as an intended creditor beneficiary under § 302(1) (a).
Jou alse does not qualify as a donee beneficiary under
'§ 302(1) (b), which states thet @ third party is an intended
beneficiery if “recognition of @ right to performance in the
beneficiary is appropriate to effectuate the intention of the
parties and . . . the circumstances indicate that the promisee
intends to give the beneficiary the benefit of the promised
it is clear
performance.” We need not delve too deep inasmuch
that. payment to Jou was not 2 gift. See Restatement (Second) of
Contracts § 302 emt. c (stating that § 302(1) (b) pertains to
situations involving @ “gift promise” or @ “donee beneficiary”):
Guardian Constr. Co., 583 A.2d at 1387 ("It is abundantly clear
to the Court that Plaintiffs were not creditors . . . at the tine
the . . . contract was made nor were thev the subject of (a
party's] generosity.”) (Emphasis added.) .
Accordingly, inasmuch es (1) this jurisdiction's no-
feult legislative scheme does not establish his status as a
third-party beneficiary as a matter of law, and (2) Jou does not
assert that the insurance contract establishes him as a third
party beneficiary, we conclude that his present point of error is
without merit.*
rounent in Jey ¥ tet
7 P. 36 961 (App. 2007),
Therein, the Intermediate
continued.
detente,
‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
*(, . .continved)
court of Appeals ("ICA") rejected Jou's assertion that he was an intended
third-party beneficiary of a worker's conpensstion insurance policy as =
matter of lew. [dy st 134, 157 P.ad st S13. The ICh relied, in large party
on other Jurisdictions that have rejected similar claiss from health care
Providers. For exemple, in McFadden v. Liberty Mut. Ins. Cou, 603 F. Supp.
Tie (W.b. Miss, 1992), the District Court for the Northern District of
Mississippi reascred, inter alia, thet "[e]lthcugh they may directly benefit,
be a class, treating’ paysscians re not intended beneficiaries of the Wich
[Messseippi Workers’ Compensation Act].”” Jou, 11¢ Hawai't at 132, 187 8.36
at 871 (citing McFadden, €03 F. Supp. At 1284)’ (brackets in original).
Sinilerly, in UAins. Co, v. Scheffey, 626 5.M.26 765 (Tex. Ce- App. 1992),
the Texas Court of Appeals stated that
when a person contracts with an insurer for the benefit of
Ancthax, beth the perscn contracting and the thire party may
Expect thet the inesrer wovld we the sane duty te the deeignated
third party as it would to the person making the contract.
Scheftey centencs that, as 2 physician ef choice to [the ineurence
cerrier'e) shira-party insurede--the enployese of the companies
Insured by [the insurence carrier]-rhe 1s entitled te the sane
status as 2 third-party beneficiary te the insurance contract. No
Texas court hes extenced the insurer's duty of goos fasth end falr
dealing te persone in Scheffey's position. Scheffey dia not heve
any special relaticnship with [the insurance carrier], and he was
ot & person to whem [the insurance cezricr] ewed © duty of good
Feith and £257 dealing.
30g, 114 Hawes"s et 135, 187 P.30 at $72 (citing Scheffev, €2€ S.K.20 at 790-
S51" cemphesie in criginal) (brackets in original). ‘The ICA agrees with the
bebadsen anc’ Scheftey courts that “there ie ncthing inherent in Dr. Jou"
Etats ars physician who provided trestnent to the, insured employee that
tntities hin te sve Netionel in tore fer bad faith:” dd, the Jeh explained
that, even though this jursedictien’e worker'e conpensation schene regulates
physiciane by, among ether things, precluding them fren Billing the insured
employee snd’ requiring then to evgest billing e:eputes to the cirector of the
Department of Leber ond Industrial Relations for resolution, dda, the worker's
Cespensaticn schene is decigned te “eenpensate employees for work-related
Injuries, not to compensate physicians.” id, Ultimately, the ICA concluded
a0 follow
In the context of the Hawai's workers’ compensation schene,
4 physicion is an incisentsl beneficiary Tether then an intended
third-party beneficiory of the employer's workers’ compensation
Insurance policy. In providing workers’ cespensation insurance
coverage, the inturer pronises the employer that the inevrer will
fay benefits cued by the enployer to the injures employees: This
Fronise incidentally benefits the physician to the extent that the
Physician provides trestnent for which the employer 1 required te
Bey. We concluse that Dr. Joy is not an intenced thirc-rerty
cicnal's sneurance pelsey and sees net have 8
couse of setien in tort for eed faith ageine’ Neticne!
Je. ot 156, 187 Fed at $73.
(contsnved.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
Statute of Limitations
Jou also contends that the statutes of Limitations,
codified as HRS §§ 657-7 and 431:10C-315, were subject to the
tolling rule applied in State Farm Mut. Auto, Ins. Co. v, Murata,
88 Hewes’ 264, 965 P.2d 1284 (1998) and Wright v, State Farm
Mut. Auto, Ins, Cos, 86 Hawai‘ 357, 949 P.2d 197 (App. 1997).
However, because Jou has failed to establish his standing as a
third-party beneficiary to assert a bad faith tort claim, the
statute of limitations issue is moot.
3. Concurvent sdministrative proceedines
Jou's final sub-argument asserts that “Judge Hifo
reversibly ruled that [Jou] forvent his suit for insurer bad
faith by requesting administrative relief under HRS § 431:10C-
The circuit court
212." Jou misreads the circuit court's ordi
sserting hie statutory claims regarding his
precluded Jou from r
pili payment dispute with DTRIC in the court proceedings because
he elected administrative renedies. The circuit court did not
preclude his tort clain.
Rather, as discussed supra, the circuit court rejected
Jou's bad faith tort claim because he lacked standing as an
incidental, rather than intended, third-party beneficiary. DIRIC
conceded below that the DCCA di¢ not have jurisdiction over tort
clains and thet the election of remedies defense, set forth in
ss -continved)
fection of dcu's third-party beneficiery claim in the
Ue consistent with the ICR's treatment
ation context
ting ebligetsen, st ie clear
te Jeu cid net preenist the worker's compensaticn
seeve
Insurence pelicy
23
{++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Moss v. Am. Int’] Adjustment Co., Inc., 86 Hawai'i'S9, 947 P.2d
371 (1997), did not preclude the filing of a tort claim for bad
faith in the circuit court. The circuit court’s holding was not
to the contrary.
F. The Cumulative Effect on Jou’s Constitutional Rights
Jou's sixth point of error contends that the errors
asserted in his foregoing points of error violated his
constitutional rights to equal protection and due process of law
under the state and federal constitutions. However, to the
extent that Jou has failed to prevail on any of his points of
error, the basis for his constitutional azgunent is defeated.
G. Failure to Argue
Jou's seventh point of error alleges that “[t)he first
circuit, by repeatedly assigning [J]udge Hifo to Appellant's
cases is creating @ ‘conduit court’ bent on damaging Dr. Jou as
much as possible on his way to the appellate courts.” However,
Jou’s opening brief does not contain a related argunent section.
Accordingly, the point of error is waived. See HRAP Rule
28 (b) (7) (“Points not argued may be deened waived.”).
Jou's Remaining Argunents Need Not Be Addressed.
Jou's opening brief also asserts the following
arguments: (1) the circuit court, by failing to acknowledge
Allstate and otherwise remaining unfaithful to the common law,
has left him without an adequate remedy; (2) the state, through
its judiciary, is causing judicial and administrative remedies to
be inadequate to address the cleimed wrongs and is thereby
violating his constitutional rights and access to the courts;
ate, through its judiciary, deprived him of his
) the
24
> FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
property without due process of law; and (4) the circuit court
“exceeded its jurisdiction knowing injury would be compounded
during appellate delay”; However, these arguments have not been
preserved as they have not been presented as points of error.
See HRAP Rule 28(b) (4) ("Points not presented in accordence with
this section will be disregarded . . . ."). Accordingly, we do
not address then.
I. the Director’
Also before this court is a motion, filed by the
RAP Rule 38 Motion
director pursuant to HRAP Rule 3€,! requesting damages and costs
Anasmuch as Jou’s appeal as to him was frivolous. For the
following reasons, we deny the directors motion.
It is important to note that Jou does not argue on
appeal that the DCCA administrative hearing system is facially
unconstitutionel. Rather, as mentioned supra, his appellate
argument is thet the circuit court failed to hold the director to
his burden of production on summery judgment. Although Jou has
thereby mistaken the movant’s burdens on a motion for summary
judgment against a facial constitutional attack, his argument is
not akin to arguments that we have held to be frivolous in the
past. See, £.0., Child Support Enforcement Agency v, Doe, 109
4 240, 253-54, 125 P.3d 461, 474-75 (2005) (hereinafter
“CSEA") (finding father’s argument that the Hewes‘ Uniform
Parentage Act violates his rights to privacy end equel
protection, and his right to be free from compulsory service, to
WRAP Role nerszes an auard cf danages
determines to bef
an oppeal is
2s
'+__FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTER ***
be “palpably without merit). Accordingly, we deny the
director's motion for damages and costs under HRAP Rule 38.
IV. concLusroN
Based upon the foregoing analysis, we affirm the
judgment appealed from and deny the director's HRAP Rule 38
motion for damages and costs.
on the brief G
stephen M. Shaw, Yi
for Plaintiff-Appel lent :
Beeson Hes oeur M.be Wie WLeinee
J. Patrick Gallagher, x .
Joelle Segawa Kane, and Reta CN ne
Leah M. Reyes, for
Defendant Appellee Ure duty
Dai-Tokyo Royal State
Insurance Company, Limited
David A. Weber and Deborah
Day Emerson, Deputy Attorneys
General, for Defendant-Appellee
Lawrence M. Reifurth, Director,
Department of Commerce and
Consumer Affairs, State of Hawai'i
CONCURRING OPINION BY ACOBA, J.
I concur in the result only.
an.
pathevgh Jeu'e facial constitution ck on the Occ)
igs eysten more Closely rerenbles the arguent found te be
wae net reasserted on eppe
26
|
dd78e4b7-2f20-4907-b9cd-4297c0892fde | Silva v. Lingle | hawaii | Hawaii Supreme Court | LAW UBRARY
No. 28817
30 THE SUPREME COURT OF THE STATE OP HAWAT'Ip|
ORIGINAL PROCEEDING
(ay: Moon, €.9., Levinson, Nakayama, Acoba, and Duffy, 23.)
pon consideration of petitioner Edmund Keli's silva,
ge. 's Application for Quo Harrento Writ and Temporary Restraining
Order and the papers in support, it appears that a writ of quo
warranto is not issuable by the suprene court pursuant to HRS
chapter 659 inasmuch as chapter 659 applies to the circuit court,
not the suprene court.
It further appears that the writ sought by petitioner
ts not issuable by the suprene court pursuant to HRS §5 602-
5(a)(5) oF (6) (Supp. 2006) snasmich as the suprene court's
Jurisdiction in Sierra Club v. Department of Transportation (No.
27407) terminated on October 3, 2007 upon entry of the Judgment
fon Appeal end no other case concerning the Hawaii Superferry is
pending before the supreme court. HRS § 602-5(a) (Supp. 2006)
does not otherwise confer the suprene court with jurisdiction and
power to issue the writ sought by petitioner. Therefore,
IT IS HEREBY ORDERED that the application for a writ of
quo warranto is dismissed.
DATED: Wonclulu, Hawai'i, November 5, 2007.
G
Pei Oa Ore
BW er—e
Crore ddign
|
8b2bd9dd-37a0-4ec2-aa89-aa275449fa65 | Peralto v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
NOP FOR PUBLICATION 10 WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER ***
No. 27848
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
SVHY $1 soo une
MITCHELL PERALTO, Petitioner-Appellant,
ams
STATE OF HAWAI'I, Respondent~Appellee.
APPEAL FRON THE FIFTH CIRCUIT COURT
(S.P.P. NO. 04-1-0012)
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.,
‘and Acoba, J., concurring)
The petitioner-appellant Mitchell Peralto appeals from
the August 26, 2008 order of the circuit court of the fifth
circuit, the Honorable George M. Masuoke presiding, denying his
Hawai'i Rules of Penal Procedure (HAPP) Rule 40 petition without
a hearing.
on appeal, Peralto contends that the circuit court
erred in denying his petition because it failed to conclude:
(2) that the sentencing court retaliated against him for his
successful appeal in State v, Peralto, 95 Hawai'i 1, 18 P.3d 203
(2001), by imposing upon him @ harsher sentence at his
resentencing, in violation of HRS § 706-609 (1993);? (2) that his
new sentence violated his constitutional guarantees against cruel
and unusual punishment: and (3) that the ten-year mandatory
2 RS § 706-609 provides thet “(xJhen 2 conviction or sentence is
ck, the court shall not inpose 8 new
set aside on dsrect oF colisteral at
sentence for the ior fora different offense based on the sane
Conduct, which i= than the prior sentence.”
Nor FOR FUBLICATION IN WEST'S JANAT'T REFORTS AND PACIFIC REFORTER +9
ninimom term of imprisonment imposed in connection with his
second-degree murder conviction was imposed in a manner that
violated procedures set forth by this court in State v. Tafova,
91 Hawai'i 261, 982 P.2d 890 (1999).
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 affirm the order
of the circuit court for the following r¢
In his original HRPP Rule 40 petition, Peralto made two
argunents: (1) that the imposition of the mandatory minimun
sentence for murder in the second degree violated Apprendi v. New
dexsey, 530 U.S. 466 (2000); and (2) that the imposition of two
consecutive life sentences with the possibility of parole was
cruel and unusual punishment, in violation of the eighth
amendment to the United States Constitution and article I,
section 12 of the Hawai'i Constitution.
On appeal, however, Peralto does not cite to or rely
vpon Apprendi. This is not surprising insofar as this court,
subsequent to his petition but prior to his appeal, ruled that
Apprendi and its progeny do not implicate mandatory minimum
sentencing. See State v. Gonsalves, 108 Hawai'i 269, 296, 119
P.3d 597, 604 (2005) (reasoning that “the judicial fact finding
‘that give(s) rise to a mandatory minimum sentence . . . does not
expose a defendant to a punishment greater than otherwise legally
prescribed’ and, hence, does not violate Apprendi (quoting
Harris v. United states, 536 U.S. 545, 565 (2002)) (brackets and
ellipsis in Gonsalves)); see also State v, White, 110 Hawai'i 79,
+e NOP FOR FUBLICATION IN MEST’ HAWAI'T REPORTS AND PACIFIC REPORTER +1
86, 129 P.3d 1107, 1114 (2006) ("The judge may impose the
minimum, the maximum, or any other
tence within the range
without seeking further authorization from th{e] jurly] -- and
without contradicting Apprendi.’” (Quoting Harris, 536 U.S. at
565.) (Emphasis omitted.)).
Instead, Peralto makes a number of new arguments for
the first time on appeal. He has, therefore, waived those
arguments, for, 2s this court has noted,
als a general rule, Lf 2 party does not raise an
argunent at trial, that argument will be deened to
Rave been waived on appeals this rule appli
Clisine! ape civil cases. See State 'v. ildefonso, 72
Haw, 573, 564, 627 Pi2d 648, 608 (1992) (our review
Of the record’ reveals that (the defendent] id not
Faise this argusent at trial, and thus it is deened to
have been weives.”); State vHoglund, 71 Haw. 147,
0, 785 Pr2e 1311, 2313 (1850) (Generally, che
fasiure to properly raise an iteue et the trial Level
precludes @ party from rsising that issue on
Sppeal.")) daalsa) of Act 1.1 Owners of Wailea Elua vy
Nellea ‘Renore Cp. ted, 100 Nawat't 87, 207, 58 Pad
608, é1@ (2002) (“Legal issues not raised in the
Eriai court are ordinarily deemed waived on appeal.”)
State vs Moses, 102 Hawai'i 449, 456, 77 P.3¢ 940, 947 (2003)
(sone brackets in original and sone added). Specifically, by not
raising them below, Peralto waived his arguments: (1) that the
prosecution and the court reteliated against hin by imposing a
harsher sentence, in violation of HRS § 706-609, see supra
note 1; and (2) that the sentencing court violated Tafova in
imposing @ mandatory minimum sentence for his murder conviction.
Nevertheless, insofar as Peralto’s “retaliation”
argument could possibly be construed as a variation of his eighth
amendment azgunent and his Tafoya argument could with equal
effort be considered an iteration of his Apprendi argument, we
address them on their merits.
‘#0 oT FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REDORTER +++
1 wi
x Life with th i dex
HRS § 706~
Peralto argues that under his original sentence of life
without the possibility of parole for murder in the second degree
he was, pursuant to HRS $§ 706-665 and ~657, eligible for
commutation of the sentence after twenty years but, following his
jentencing to life with the possibility of parole, the Hawas‘i
Paroling Authority (HPA) set his mandatory minimum term at sixty-
five years,* resulting, he argues, in a harsher sentence,? in
violation of HRS § 706-603, see supra note 1, that effectively
constitutes 2 “death penalty” and violates his protections
against cruel and unusual punishment.
In State vs Loa, 83 Hawai'i 335, 925 P.2d 1258 (1996),
and State v. laukea, $6 Haw. 343, 537 P.2d 724 (1975), the
defendants committed their crim
See Loa, 03 Hawai'i at 339, 926 P.2d at 1262 (wherein the
in a similarly cruel manner.
defendant repeatedly sexually assaulted one of the victims while
taunting her legally-blind companion, made racial slurs, informed
them he meant to kill them, stabbed then, and left them to die);
Peralte failed to cite to the record for evidence that the HFA has
indeed issued a sixty-five year minimus term and we are unable to locate
support in the record for that assertion. Nevertheless, insofar a= we
Conclude that the argument is, on the whole, without merit, we take the
2 reraito also contends that his subsequent sentence was harsher
because the court, in resentencing him, imposes an extendes term of life with
the possibility of parole for the kidnapping conviction, Whereas in the
original sentencing ne use sentenced te tuenty years. this is simply not
true: a review of the record revesis that, in fact, the circuit ceurt imposed
on extended term of life wien the possinility of paole for the kicnapping
Conviction at Eoth the initial sentencing and the resentencing
Nor FOR PUBLICATION 10 WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER +++
Laukea, 56 Hawai'i at 346-47, 537 P.2d at 727-28 (wherein the
defendant threatened the psychiatric social worker assigned to
him with 2 knife in order to rob and repeatedly to sexually
assault her after she had offered to assist him in finding safe
lodging for the evening). The sentencing court imposed sentences
equally onerous as those received by Feralto. See Loa, 83
Hawai's at 35S, 926 P.2d at 1278 (seven life terms of
imprisonment with the possibility of parole and two twenty-year
terms of imprisonment, to run consecutively); aukea, 56 Haw. at
345, 537 P.2d at 727 (life imprisonment). This court,
nevertheless, concluded in both Loa, 83 Hawai'i at 356-57, 925
P.2d at 1279-80, and Iaukea, 56 Haw. at 361, $37 P.2d at 736,
that the sentences imposed did not violate the defendants’
constitutional protections against cruel and unusual punishment.
In the present matter, in light of the details of
Peralto’s crimes, it cannot be said that the circuit court erred
in concluding that the sentencing court did not violate Peralto’s
constitutional protections against cruel and unusual punishment
in imposing the sentence that it did, insofar as the sentence
does not “‘shock the conscience of reasonable persons or .
outrage the moral sense of the conmunity.’" Loa, 83 Hawai'i at
387, 926 P.2d at 1280 (quoting State v. Kumkau, 71 Haw. 218,
227, 767 P.2d 682, 687 (1990)), quoted in State v. Kahapea, 111
Hawai'i 267, 282, 141 P.3d 440, 455 (2006). The circuit court
did not, therefore, err in denying Peralto’s petition without a
hearing on this issue. See Hutch v. State, 107 Hawai'i 411, 414,
114 P.3d 927, 920 (2008).
‘44 NOP FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *+#
As for Peralto’s argument that his subsequent
resentencing violated HRS § 706-609, the commutation of which
Feralto speaks is commutation of 2 term of life without the
possibility of parole to a term of life with the possibility of
parole -- precisely the sentence he, in fact, received at his
resentencing.‘ He essentially argues that his initial sentence
gave him hope of a change after twenty years, whereas the current
sentence requires him to wait sixty-five years to hope for a
change. But the hoped-for change under his initial sentence was
the chance to have @ minimum sentence set by the HPA, a minimum
sentence which he, in fact, received upon imposition of the new
sentence. It is clear on this analysis alone that the current
sentence is not harsher.
+ peralto war sentenced initially to an extended term of life
without the possibility of parcle, pursuant to HRS § 706-657 (Supp. 1996),
ach provides in relevant part
The court may sentence # person who has been convicted of
murder in the second degree to life imprisonment without
Possibility of parole under (HRS $) 706-656 if the court finds
Skat the murder wae especially heinous, atrocious, or cruel,
Banifesting exceptions! seprovity = =
‘The provisions pertaining to commutation in [HRS
$) 706-686 (2), shall apply to persons sentenced pursuant to this
HRS § 106-€56 (Supp. 1996) in turn provides in relevant part:
che court inposes » sentence of life im
possibility of parole pursuant to (HRS §] 706-€57( (gee suDEa], a©
Part of that sentence, the court shall order the director of
ambLication for the covernor to connote the sentence to lite
inprisonsent with parole at the-end of teenty veers of
Gnpeiscnsents provices that perscns wo are Tepest offenders under
THRE] T0e-é0€.S shell sezve at least the applicable nandstery
sinimum term of inprisonnent
Emphasis added.
NOP FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER ***
Moreover, the HPA’s actions were only a collateral
effect of the sentence imposed by the circuit court; the HPA's
setting of a minimum term sentence of sixty-five years was wholly
independent of the circuit court’s resentencing Peralto to a
lesser sentence of life with the possibility of parole on the
murder charge and does not constitute part of Peralto’s sentence.
See Keawe v, State, 79 Hawai'i 281, 290, 901 P.2d 481, 490 (1995)
("[1]n Light of the language of HRS § 706-609 and the clear
distinction between sentencing and paroling, we hold that HRS
§ 706-609 is inapplicable to cases where a new sentence, which is
not more severe than a prior sentence, adversely affects a
defendant's parole status,” cautioning that “the terms ‘parole’
and ‘sentence’ should not be confused with each other” because
“{w)hile sentencing is the function of the judiciary, the
granting of parole is generally the function of the executive
branch of government . . . .”). And, we note, Peralto’s
resentencing did not threaten to affect adversely his parole
status, as was the case in Keawe, 79 Hawai'i at 289, 901 P.2d at
489, but, in fact, moved the date for the issuance of the minimum
term before parole became available forvard in time by at least
twenty years.
We therefore conclude that the circuit court correctly
denied Peralto’s HREP Rule 40 petition without a hearing on this
issue, Hutch, 107 Hawai'i at 414, 114 P.3d at 920.
‘#4 MOT FOR PUBLICATION IN WEST'S HAWAI'S REFORTS AND PACIFIC REPORTER ++#
2.
sentencs u SF convict
Peralto’s Tafova argument can be best summarized as
arguing (1) that the imposition of a mandatory minimum term of
imprisonment is subject to the same constitutional constraints as
the imposition of an extended term sentence, (2) that the process
through which the mandatory minimum is imposed must comport with
Apprendi and its progeny, and (3) that the court, in resentencing
him, did not comply with Apprendi.
As noted, approximately six months after the parties
briefed the present appeal, this court, in Gonsalves, 108 Hawai'l
at 295-97, 119 P.3d at 603-05, concluded that imposition of a
mandatory minimum term of imprisonment, pursuant to HRS
§ 706-606.5, did not implicate Apprendi and its progeny insofar
as “Apprendi pronounced rule regarding the judge-inposed
penalties that increase statutory maximum sentences, not
mandatory minimum sentences, because the judicial factfinding
‘that give[s] rise to a mandatory minimum sentence . . . does not
expose a defendant to @ punishment greater than otherwise legally
prescribed.’" Id. at 296, 119 P.3d at 604 (quoting Harris, 536
U.S. at 565) (brackets, ellipsis, and emphasis in Gonsalves).
Thus, even assuming arguendo that Peralto’s Tafova
argument is an iteration of the Apprendi argument raised in his
petition and is therefore preserved, the circuit court did not
err in denying his petition without a hearing, Hutch, 107 Hawai'i
at 414, 114 P.3¢ at 920.
+4 NOT FOR PUBLICATION IN WEST’ § HAKAI'T REPORTS AND PACIFIC REPORTER *
Therefore,
IT IS HEREBY ORDERED that the August 26, 2005 order of
the circuit court of the fifth cizcust from which the appeal is
taken is affirmed.
DATED: Honolulu, Hawai'i, October 15, 2007.
Gio
\Mtesp Gl ecesom~
Peat os Os Teale BS
Gorn &. Duly gy,
I concur in the result only.
Bt.
on the briefe:
Mitchell Peralto, pro se
Richard K. Minatoya,
Deputy Prosecuting Attorney,
for the respondent-appellee
State of Hawai'i
|
f06327c2-ce90-44dd-b6de-21518e02b827 | In re Powell | hawaii | Hawaii Supreme Court | No. 28706
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
HY 82 438 0
IN RE:
LAULIE SUE POWELL, Petitioner.
ORIGINAL PROCEEDING
506
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Daffy, JJ.
upon consideration of Petitioner Laulie Sue Powell'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
“4 (RSCH). It further appears that
of the State of Hawa
Petitioner Powell asserts that she has been unable to locate her
License to practice law in this jurisdiction due to relocation.
Therefore,
TT 1S HEREBY ORDERED that the petition is granted.
IT IS FURTHER ORDERED that the requirement that
Petitioner Powell return her original license to practice law to
the Clerk of this court forthwith is waived. If Petitioner
Powell locates her Hawai'i law license, she shall send it
forthwith to the Clerk of this court and the Clerk shall retain
the original license as part of this record. Petitioner Powell
shall comply with the notice, affidavit, and record requirements
of subsections (a), (b), (a), and (g) of RSCH 2.16.
IT IS FINALLY ORDERED that the Clerk shall remove the
name of Laulie Sue Powell, attorney nunber 6669, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order.
DATE!
Honolulu, Hawai'i, September 28, 2007.
Bran, Deter
|
2d73fdb8-7f03-4b82-815c-877cfeba2f7f | Office of Disciplinary Counsel v. Johnson | hawaii | Hawaii Supreme Court | No. 28686
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
OFFICE OF DISCIPLINARY COUNSEL, Petitioner, =|
STEVEN B. JOHNSON, Respondent.
ORIGINAL PROCEEDING
(ODC 07-028-8488)
(By: Moon, €.3.,"Eevinsone Wakayama, Rebar and Duffy, 99.)
upon consideration of the Office of Disciplinary
counsei’s petition for issuance of reciprocal discipline notice
ko Respondent Steven B. Johnson, pursuant to Role 2.18(b) of the
fules of the Suprene Court of the State of Hawai's ("RSCH"), the
memorandum, affidavit, and exhibits thereto, Respondent Johnson’ s
response thereto, and the record, it appears that
(2) on August 31, 2006, the Supreme Court of Oregon
suspended Respondent Johnson for ninety (90) days for his
violation of DR §-105(E) (current client conflict of interest);
DR 6-101(B) (neglect of a legel matter); DR 9-101(A) (failure to
deposit or maintain client funds in trust) (3 counts); DR 9-
101(C) (3) (failure to account for client funds or property) (3
counts); RFC 1.3 (neglect of a legal matter); RPC 1.4(a) (failure
to keep a client reasonably informed about the status of a
matter) (2 counts); RPC 1.4(b) (failure to communicate with a
client sufficiently to allow a client to make informed decisions
regarding the representation); and RPC 8.1(a) (2) (failure to
respond to a lawful demand for information from a disciplinary
authority) of the Oregon Code of Professional Conduct and the
aad
Oregon Rules of Professional Responsibilit:
(2) RSCH 2.15(b) requires the sane or substantially
equivalent discipline, or restrictions or conditions upon the
attorney's license to practice law in the State of Hawai'i,
unless Respondent Johnson 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 Johnson filed a response to our
Septenber 4, 2007 notice and order on October 19, 2007 that fails
to show cause:
(4) @ same discipline is warranted in this
jurisdiction: and
(5) 8 same discipline in this jurisdiction is
suspension for ninety (90) days. Therefore,
IT 18 HEREBY ORDERED that Respondent Steven B. Johnson
is suspended from the practice of law in the State of Hawat't for
ninety days effective 30 days after entry of this order, as
provided by RSCH 2.16(c).
IT 1S FURTHER ORDERED that Respondent Johnson’ s
reinstatement in the State of Hawai'i is conditioned (1) upon
Payment of all costs of this proceeding, and (2) full
reinstatenent to the practice of law in oregon.
DATED: Honolulu, Hawai'i, November 8, 2007.
Poem Casey oe
Anas
© Dalai be
|
22a4e326-4edd-45f2-91ab-5092aa845602 | In re N. M-O | hawaii | Hawaii Supreme Court | PAW LIBRENY
NOT FOR PUBLICATION IN WEST'S HAWAH REPORTS AND PACIFIC REPORTER
no. 27361
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
IN THE INTEREST OF N. N-O
(No. 27361; FC-S NO. 03-09097)
WwW 4 90002
oan
IN THE INTEREST OF AWC. M-o 3
(No. 27362; FC-S NO. 02-0802)
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NOS. 03-09097 and 02-08022)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.
and Acoba, J., concurring and dissenting)
The present matter concerns the decision of the
Department of Human Services (“DHS”) to place Daughter and Son
with non-relative Foster Parents following termination of
Mother's and Fathers parental rights. Appellants, the maternal
grandparents of the children, were deemed an unsuitable placement
by DHS because of their difficulty parenting three children from
Mother's earlier marriage. Foster Parents have since relocated
to Florida with Daughter and Son. Appellants were granted leave
to intervene, and the first circuit family court! considered
their request to bring the children back to Hawai'i. The family
court ultimately affirmed DHS’ placement decision based upon a
preponderance of the evidence standard of proof.
On appeal, Appellants assert that the children have a
constitutional right to be placed with family members after
termination of their natural parents’ parental rights and that
interference with that right (i.e., placement with non-relative
+The Honorable Paul 7. Murekani presided.
++ NOT _FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
Foster Parents) is justified only if DHS can establish, by clear
and convincing evidence, that available relative placements were
unsuitable. Accordingly, Appellants urge this court to hold that
the family court affirmed OHS’ placement decisions based upon an
insufficient standard of proof.?
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments and the issues raised, we hold that Appellants,
grandparents who are not the legal custodians or guardians of the
children, lack standing to assert the children’s constitutional
rights as a basis for arguing that a clear and convincing
evidence standard of proof was required.
It is well-established that, ordinarily,
“S{[clonstitutional rights may not be vicariously asserted.’”
Freitas v. Admin, Dir, of the Courts, 104 Hawai'i 483, 486, 92
P.3d 993, 996 (2004) (citing Kaneohe Bav Cruises, Inc, v. Hirata,
75 Haw. 250, 256, 861 P.2d 1, 9 (1993) (quoting State v. Marlev,
54 Haw. 450, 457, $09 P.2d 1095, 1101 (1973))); see also Powers
Ye Ohio, 499 U.S. 400, 410 (1991) ("In the ordinary course, a
Litigant must assert his or her own legal rights and interests,
+ in their opening brief, Appellants assert the following five
points of error: (1) the family court erred by failing to recognize a child
Constieutionally protected due process interest in being placed with
Felatives if a quolified placenent is available; (2) the family court
failing to require proof by clear and convincing evidence that the non-
fe of each child; (3) the family
‘authorized to determi
(a) the family coure
Concluding that Appellants, grandparents who were not the leg:
the children, die not have’ standing to assert the constitutional right to
Blacenent with fantly nenbers; (5) the family court erred by concloding that
fo appropriate placement with extended relatives was avellable as of the
Conclusion of trial. However, the argusents asserted do not align with the
foregoing points of error. ence, we address coly those points actually
argues. see Hawai'i Rules of Appellate Procedure ole 28 (b) (7) (2008)
ft argued may be deened waived.) ~
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
and cannot rest a claim to relief on the legal rights or
interests of third parties.”
However, the United States
Supreme Court has recognized certain exceptions to the foregoing
Limitation. In particular, the Court has approved
the rights of 1itigants to bring actions on behalf of third
parties, provided three important criteria are satisfied: The
Sleigant must have suffered an “injury in fact,” thus giving him
or her's "auéficiently concrete interest” in the outcome of the
Sssve in dispote .. - 7 the litigant must have a close relation
tothe thire party | | |} and there must exist some hindrance to
the third party's ability to protect his or her own interests.
‘Id, at 410-11 (internal citations omitted). The Court has also,
in the past, considered “the impact of the litigation on third~
party interests.” in 6 br ve 2
491 U.S. 617, 624 n.3 (1989).
In the case at bar, standing must be rejected inasmuch
as Appellants have failed to demonstrate a sufficient injury in
fact. In order to secure standing, Appellants were required to
demonstrate an injury in fact to a legally cognizable interest --
due., a recognized legal right.
Comm'n, $40 U.S. 93, 227 (2003) (unanimously concluding that the
failure to show injury to a recognized “legal right” precluded
satisfaction of the injury in fact component of the standing
doctrine); Smith v, Frye, 488 F.3d 263, 272 (4th Cir. 2007); Salt
Institute v. Leavitt, 440 F.3d 156, 159 (4th Cir. 2006); Bowen ws
First Family Fin. Servs., Inc., 233 F.3d 1331, 1339 (11th Cir.
2000); Curry v, Regents of Univ, of Minnesota, 167 F.3d 420, 422
(8th Cir. 1999); Lanadon v. Google, Inc., 474 F.Supp.2d 622, 629
(D. Del. 2007); Beople v. Clark, 869 N.E.2d 1019, 1034 (I11. Ct.
App. 2007); In-re Petition for Decertification, 730 N.W.2d 300,
304 (Minn. Ct. App. 2007); Indiana Democratic Party v. Rokita,
458 F.Supp.2¢ 775, 813 n.S7 (S.D. Ind, 2006); Wimberly v
* NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
—TTLNOT FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER ***
Ettenbera, 570 P.2d 535, $39 (Colo. 1977).
Here, Appellants assert the following ha:
Q) “the
Court determined that the children would remain with their (non-
related) foster parents and thus effectively terminated the
possibility of any future contact between the children and the
members of their biological family (including Appellants)”
(emphasis added); and (2) “applying an incorrect standard of
Proof caused them an injury-in-fact in that the relationship
between them and their grandchildren was terminated based only
upon a preponderance of the evidence and not by clear and
convincing evidence.” First, Appellants have no common law or
constitutional right to “the possibility of future contact” with
their grandchildren. See Mullins v. State of Oregon, 57 F.3d
789, 794 (9th Cir. 1995) ("[WJe are certain that [a grandparent’s
interest in @ potential, undeveloped relationship with his or her
grandchild) does not rise to the level of a fundamental liberty
interest."); Graham dren’ ir. Yt of Hu
Res., 991 P.2d 375, 379 (Or. Ct. App. 1979) (“In summary, we
conclude that grandparents have no liberty interest herein and no
rights superior to @ nonrelative applying for permission to
Robichaud v, Pariseau, €20 A.2d 1212, 1216 (Me. 2003)
(Grandparents do not have a conmon law or constitutional right
of access to their grandchildren."); In re Schmidt, 496 N.E.2¢
982, 958 (Ohio 1986) (concluding that grandparents "had no legal
right to custody or visitation with their grandson, and they held
no legally protectable interest that was related to [their
adopt."
grandson’s] care and custody").’ Appellants also do not assert
2, Other Jurisdictions have held that extended relatives may hi
interest in preserving an existing family relationship. See Heare w-_City of
*+** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
any statutory basis for recognition of such a right.‘ Second,
although Appellants appear to claim a deprivation of a
preexisting “relationship” with the children based upon an
insufficient standard of proof, they do not elaborate upon, and
the
cord lacks evidence of, the extent of that “relationship.”
See discussion supra at n.3. Given the lack of evidence, we may
presume that the “relationship” referred to is either (1) the
fact of consanguinity, and/or (2) another reference to the future
relationship Appellants wish to have with the children. As
mentioned, neither produces a legally cognizable interest.
To the extent that Appellants have failed to
scontinued)
}, 431 U.S. 494, 506 (1977) (plurality opinion) ("The tradition
Of uncles, aunts, cousins, a cially grandparents sharing a household
long with parente snd chileren hae roots aqually venersble and equally
Geserving of constivutional recognition.) Malling, 37 F.3d at 194 ("A
negative right to be free of governnental interference in an already existing
familial relationship does not translate into an affirmative right to create
an'entizely new family unit out of whole cloth.")7 Osborne vy. City of
Hiverside, ‘305 F.Supp.2d 1048, 1054" (C.D. Cal. 2008) ("the court conclude:
that; + grancparencs have no liberty interest in famiiial integrity oF
sssociation with their grandchildren by virtue of genetic link alone, but
Grandparents who have a long-standing custodial relationship with thesr
Grandchildren such that together they constitute an existing family unit do
Possess a liberty interest in fenilial integrity and ssscciation.)
{Quotation narks onittes.); iver v. Marcus, E96 F.2d 1016, 1024-25 (2d cir.
1962) ("We believe that custodial Felstives iike Mrs. Rivers are entitled to
due process protection when the state decides to renove s depencent relative
fron the fanily environment.*). Relatedly, the Suprene Court has explained
that “the inportance of the familial relationship . «+ stens from the
entional attacmnents that derive from the intimacy of daily association, and
From the role it plays sn ‘promot (ing) a way of life’ through the instruction
of children, . . + ag well as from the fact of blood relaticnship.”” Sith v
Srq.of Fostex families For fouel. é Reform, 451 0.5. 816, 864 (1977)
(citation omitted) (alteration in original). Although Appellants share
blood relationship with chilaren, @ fundanental inadequacy exists insemoch ae
Appellants do not sesert, and the record 1s devoid of, any evidence ef the
fenoticnal attachnents that serve as the cornerstone of the fanily relationship
(Liss, Gaily association, attributes of custody or guardianship, oF @ shared
househoid).” Under these circunstances, we do not perceive e fomily unit the
integrity Of which Appellants may have had a Liberty interest in.
«For example, Appellants do not sesert, this jurisdiction's
grendparent visitation statute, codified as Hawai"! Revived Statutes $ $71-
46.3, as 2 statutory basis for determining that Appellants hove 0 legally
Cognizabie interest in future visitation.
5
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
demonstrate an injury in fact to a legally cognizable interest,
they lack standing to assert a jus tertil claim on behalf of
Daughter and Son. A fortiori, they also lack standing to assert
the children’s constitutional rights as a basis for requiring an
elevated standard of proof. Therefore,
IT TS HEREBY ORDERED that the fanily court's May 6,
2005 Decision and Order and May 31, 2005 Order denying
Appellants’ motion for reconsideration are affirmed.
DATED: Honolulu, Hawai'i, October 5, 2007.
on the briefs:
for Intervenors-Appellants
Susan Barr Brandon and beg Delicnse~
Mary Anne Magnier,
Deputy Attorneys General,
for Respondent-Appellee Beste CO eerenyarre.
Department of Human Services
Ken 6. Oust «
|
3715985d-7409-478c-9f9c-b0a3311f8403 | Olelo: The Corporation for Community Television v. Office of Information Practices. | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000.
“OLELO: THE CORPORATION FOR COMMUNITY TELEVISION,
Plaintiff-Appellee,
OFFICE OF INFORMATION PRACTICES and LES KONDO, Director of the
Office of Information Practices, in his official capacity,
Defendants-Appellants.
No. 27421
=
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFYAlgz. B
QBINION OF THE COURT BY DUFFY, J.
Defendants-Appellants the Hawai'i Office of Information
Practices and Les Kondo, Director of Office of Information
Practices, in his official capacity (hereinafter, collectively
OTP], appeal from the June 30, 2005 final judgment of the circuit
court of the first circuit! entered pursuant to its May 23, 2005
order that (1) granted sumary judgment to Plaintiff-Appellee,
‘Olelo: the Corporation for Community Television (‘Olelo), and
(2) denied O18" cross-motion for summary judgment.
} the Honorable Victoria S. Marks presided over this matter
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on September 6, 2002, OIP issued OIP opinion lett:
number 02-08 (‘Olelo letter). OTP Op. Ltr. No. 02-08 (2002),
2002 WL 31126635. The ‘Olelo letter concluded that “Olelo met the
Gefinition of an “agency” contained in Hawai" Revised statutes
(HRS) § 92F-3 (1993) and, therefore, was subject to the
provisions of Hawai'i's Uniform Information Practices Act (UIPA),
HRS chapter 92. As an agency subject to UIPA, OIP concluded that
“Olelo was required to disclose “government records.”
The current controversy began in 2004 when ‘Olelo
received a request from three individuals for a master list with
contact information (names, addresses, telephone numbers, and
email addresses) for ‘Olelo's current clients, presenters,
producers, volunteers, and “all persons eligible to vote in
‘Olelo’s election.” When OIP subsequently demanded that ‘Olelo
disclose the requested information, ‘Olelo filed a complaint for
declaratory relief in cizcuit court requesting that the court
declare that it is not an agency under UIPA. After a de novo
review of the legal arguments and evidence submitted by both
parties, the circuit court granted ‘Olelo summary judgment and
Genied O1P’s corresponding motion for summary judgment.
OTP appealed to this court on July 26, 2005. o1P
alleges that the circuit court erred because (1) it did not apply
the correct standard of review to and/or grant deference to OIP’s
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conclusion that ‘Olelo was an agency subject to UIPA, and (2) it
concluded that ‘Olelo was not an agency as defined in UIPA.
Based upon the following analysis, we affirm the
circuit court’s declaratory judgment that ‘Olelo is not an agency
subject to UIPA.
1. BACKGROUND
A. ‘Dlelo's Creation
Under Hawai'i’'s Cable Television system’s Act (CTSA),
the director of the Department of Commerce and Consuner Affairs
(BCcA) is authorized to grant cable franchises. HRS § 4406-8(a)
(1993). operators of cable franchises are required to “designate
three or more channels for public, educational, or governmental
use” (PEG). HRS § 440G-8.2, PEG channels are funded by access
operating fees and equipment facilities fees that the DccA
directs cable franchise operators to pay directly to the PEG
facilitators. The allocated money does not pass through the
State’s general fund.
In 1988, the DCCA director granted a cable franchise to
Oceanic Time Warner Cable (Oceanic). Pursuant to the CTSA, the
director required that Oceanic set aside PEG channels. This
necessitated the creation of entities that would facilitate the
Production of programming that would be broadcast on the PEG
channels.
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The DCCA director intended that PEG facilitators be
“independent, private non-profit community based organization(s]”
that would operate “separately and independently from the state”
and not be considered ‘arm[s)’ of the State or be perceived as
taking ‘State action.’ Specifically, the OCCA director wanted
to structure the facilitation of PEG channels in such a way that
the State would be shielded “from any appearance of content
control in the future operation of ‘Olelo.” To accomplish this,
in 1989 the DCCA director “appointed a nine-person Access
Planning Conmission to make reconmendations to him regarding the
creation and implementation of a not-for-profit organization to
manage public, education, and government access channels,
facilities, equipment, and funding.” Based on the Access
Planning Conmission’s recommendations, the DCCA director
chartered ‘Olelo to manage PEGs on Oahu. ‘Olelo subsequently
incorporated and becane = nonprofit corporation with its
principal place of business in the state of Hawai'i.
Since 1989, ‘Olelo has facilitated all of the oahu PEG
channels pursuant to a contract between ‘Olelo and the DCCA.
According to the contract, ‘Olelo is responsible for (1) managing
PEG channels; (2) providing facilities and equipment to produce
and air PEG programs; (3) training governmental, educational, and
community organizations, as well as menbers of the general
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public, how to use “Slelo production facilities and equipment;
(4) marketing and promoting ‘Olelo channels and programming as
well as ‘Olelo production facilities; and (5) providing support
to PEG users through such methods as grants, production
assistance, and special projects to support PEG users. There is
nothing in the agreement that mandates, describes, or recommends
how ‘Olelo should accomplish its
sponsibilities.
The DCCA director retains the right to be generally
informed of ‘Olelo’s activities. ‘Olelo must submit to the DCCA
Quarterly and annual financial reports.
Quarterly and annual activity reports.
An annual operational plan.
Ba annual busget.
ba annial audit report.
Additionally, ‘Olele must provide the DCCA director “a current
roster of the Board of Directors,” and evidence of adequate,
reasonably conmercially-available insurance in several areas.
Currently, “Olelo functions as a nonprofit corporation
with a nine-menber board of directors. At the tine of ‘Olelo’s
creation, the DCCA director had the authority to appoint all
seven menbers of ‘Olelo’s initial Board of Directors (Board).
However, the DCCA director delegated his authority to the Access
Planning Commission, which appointed all of the initial Board
menbers. Eventually, the nunber of Board menbers was increased
to nine and the cable operator was granted the authority to
appoint Board members. At the time the dispute between ‘Olelo
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and OIP arose, the DCCA director had the authority to appoint six
of ‘Olelo’s nine Board members and the President of Oceanic had
the authority to appoint the remaining three Board members.
Presently, one of the DCCA’s six appointee positions is reserved
for a person who is elected by PEG users and approved by the DCCA
director.
‘Olelo’s Board participates in the DCCA’s selection of
new Board appointees. According to ‘Olelo’s bylaws, the current
Board must furnish the DCCA director and Oceanic with a slate of
recommended Board menbers. If the DCCA director or Oceanic
chooses to appoint an individual not on the slate, they must
first consult with the Board.
Tt is undisputed that the DCCA is not informed of and
does not exercise control over ‘Olelo’s day-to-day operations.
‘Olelo’s employees are paid from money collected from Oceanic and
are not considered state employees for any purpose. All
equipment and leases are in ‘Olelo’s name. ‘Olelo also retains
the intellectual property rights to its programming, logo, and
other material it develops. Day-to-day operations are managed by
the “Olelo Chief Executive Officer (CEO) who answers to the
Board. The DCCA has no direct control over the hiring or firing
of the CEO. Most important, there is no indication the DCCA has
any editorial oversight over ‘Olelo’s programming.
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B. Office of Information Practices:
O1P was established under UIPA, HRS § 92F-41. o1P's
authority and duties are enumerated in HRS § 92F-42 (Supp. 2006).
Relevant to this controversy are OIP's duty to “upon request,
review and rule on an agency denial of access to information or
records,” HRS § 92F-42(1), and authority to “[u]pon request
provide advisory opinions or other information regarding that
person’s rights and the functions and responsibilities of
agencies under [UIPA]." HRS § 92F-42(3).
OIP review is entirely optional. IP's authority is
triggered when a person who has been denied access to agency
records requests an advisory opinion from OIP in lieu of seeking
immediate judicial relief under section HRS § $2F-15.5(a) or when
a person requests that OIP provide an advisory opinion pertaining
to the person's rights to certain documents. Upon request, OIP
issues an opinion letter stating whether the agency records in
question are subject to disclosure under UIPA. HRS § 92F-42(3).
However, the issuance of an opinion letter “shall not prejudice
the person's right to appeal to the circuit court after a
decision is made by the office of information practices.” HRS §
92F-15.5(a). If judicial review is sought, OIP advisory opinion
letters are admissible, HRS 92F-15(b), but the opinion letters do
not constitute contested cases subject to the Hawai'i
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Administrative Procedure Act. HRS § 92F-42(1). An agency denial
of access to public records is reviewed de novo. HRS § 92F-
15(D)-
C. Procedural History
On several occasions, menbers of the public have
contacted OIP to request advisory opinions pertaining to the
applicability of UIPA to PEG facilitators. on October 20, 1993,
OIP issued an advisory opinion letter which concluded that Akaku-
Maui Television, Inc. (Akaku), the PEG facilitator on Maui, was
not an agency subject to UIPA because it was not “owned,
operated, or managed” by the DCCA or any State or county agency.
OTP Op. Ltr. No. 93-18 (1993), 1993 WL 531347. In reaching its
conclusion, OIP enphasized that community broadcasting was not a
required government function. On December 13, 1994, OIP issued a
similar advisory opinion letter concluding that Ho'ike: Kauai
Community Television Inc. (Ho'ike), the PEG facilitator on Kauai,
was not an agency subject to UIPA because it was similarly
situated to Akaku, and facilitating PEGs was not a government
function. OTP Op. Ltr. No. 94-23 (1994), 1994 WL 733580. on
December 13, 1994, OIP issued another advisory opinion letter
concluding that Na Leo ‘O Hawai'i Inc. (Na Leo), the PEG
facilitator on the island of Hawai'i, vas not an agency subject
to UIPA because it was similarly situated to Akaku and Ho'ike and
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facilitating PEGs was not a government function. OIP Op. Ltr.
No, 94-24 (1994), 1994 wi 733581.
However, in the 2002 ‘Olelo letter at issue herein, OIP
did an “about face” on its prior opinions concerning the
applicability of UIPA to PEGS, and concluded that ‘Olelo and
Ho'ike “are corporations owned, operated, or managed by or on
behalf of this State as set forth under section 92F-3 of the
Hawai" Revised Statutes.” OIP op, Ltr. No. 02-08, 34, otP's
revised opinion was based upon “the totality of circumstances,”
which included OIP’s view that (1) ‘Olelo and Hotike were
originally created by the government, notwithstanding their
current corporate form, OIP Op. Ltr. No. 02-08, 10-14; 20-277 (2)
the franchise fees paid by Oceanic are public funds, id. at 27-
327 (3) even though the DCCA does not exercise “day-to-day
control or management over the PEG Access Organizations,” the
Deca directly controls ‘Olelo and Ho’ ike through its power to
appoint a majority of directors to their Boards and the OCCA
indirectly controls ‘Olelo and Ho’ ike through its authority to
designate and fund PEG channels, id. at 14-207 and (4) two United
States Supreme Court First Amendnent decisions, when read
together, inply that providing community television is, in fact,
@ government function. See Lebron v, Nat'l R.R, Passenger Corp,
513 U.S. 374, 400 (1995) (holding that when “the Government
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creates a corporation by special law, for the furtherance of
governmental objectives, and retains for itself permanent
authority to appoint a majority of the directors of that
corporation, the corporation is part of the Government for
Denver Area Educ, Telecomm,
Consortium, Inc, v, FCC, S1€ U.S. 727 (1996) (holding that a
statutory provision that permitted a cable operator to prevent
purposes of the First Amendment.)
transmission of “patently offensive” programming on PEG channels
was an unconstitutional First Anendment restriction because the
provision was not necessary to further the governnent objective
of protecting children).
‘Olelo subsequently filed a declaratory judgment action
against OIP on August 18, 2004, requesting that the circuit court
determine that (1) “Olelo 1s not ‘owned, operated, or managed’
by the State under UIPA” and (2) “Olelo is not a state ‘agency’
under UIPA.” On April 15, 2005, ‘Olelo filed a motion for
summary judgment. OIP responded with a cross-notion for summary
judgnent on May 23, 2005.
The circuit court granted ‘Olelo’s motion for summary
judgment, and denied OIP's corresponding motion, on May 23, 2005.
The circuit court ruled that: “As a matter of law, ‘Olelo is not
an agency under the Uniform Information Practices Act, HRS $ 92F-
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‘The circuit court’s ruling was based upon the following
findings of fact:
1. helo 4s a private, nonprofit corporation.
2: Olelo is not supported aizectly by taxpayer funds.
Rather, it gets ite finds from the cable provider,
Tine Warner Cablevision, through access fees paid by
3. There 48 no government control over “Olelo’s
activities. “Glelo"s Chiet Executive Officer and
Staff ron its day-to-day operations
4. ‘Dielors employees axe not State Empl
5! Olelo has title to its equipment and Leases, not the
Stat
6. ‘Olelo’s activities are not a required function of any
government agency.
The circuit court entered its final judgment on June 30, 2005.
OTP filed a timely notice of appeal alleging the following points
of error:
2. the circuit court erred by not applying the judicial
Standaras of review applicable to agency
determinations.
The circuit court erzed by failing to defer to Ol?
statutory construction absent a finding of palpable
3. The circuit court erred in ite interpretation of HRS §
528-3, which renders certain statutory Language.
meaningless and conflicts with its invent and the
IPR’ purpose.
4. The clreult court erred by failing to defer to o1P's
determination absent s finding that OIP abused ite
Siseretion
Significantly, OIP did not allege that any of the
circuit court's findings of fact were clearly erroneous.
Consequently, no material facts are in dispute.
IT. STANDARDS OF REVIEH
A. Motion for Summary Judgment
A circuit court order granting or denying summary
judgment is reviewed de novo. Hawai'i Community Federal Credit
cy
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Union v. Keka, 94 Hawai'i 213, 221, 11 P.34 1, 9 (2000). the
standard for granting summary judgment is as follows:
(S]usmary judgment is appropriate if the pleadings,
Gepositions, answers to interrogatories, and admissions on
fle, together with the affisavits, if any, show that there
4s no genuine issue as to any material fact and that the
soving party is entitied to judgnent as a matter of Lam.
fact is material if proof of that fact would have the
of establishing or refuting one of the
cause of action of defen seted by the parties, The
evidence aust be viewed in ight most favorable to the
Bon-noving party. In other words, we mist view ali of the
evidence and the inferences dravn therefron. in the Light
most f
rable to the party opposing the notion.
Ag. (citations and internal quotation marks omitted); Coon v.
City and County of Honolulu, 98 Hawai'i 233, 244-45, 47 P.3d 348,
399-60 (2002); Kau v, City and County of Honolulu, 104 Hawai'i
468, 474, 92 P.3d 477, 483 (2004).
B. Deference to Administrative Acencies
In determining whether an agency determination should
be given deference, the standard to be applied is as follows:
Ilhen reviewing 2 determination of an adninistrative
agency, we first decide whether the legislature granted the
agency’ discretion to make the determinsticn being reviewed
Tf the legislature has granted the agency discretion over &
particular matter, then we review the agency's action
Pursuant to the deferential abuse of discretion standard
(bearing in mind that the legislature determines the
boundaries of that discretion). If the legisisture has not
granted the agency discretion over a particular matter, chen
the agency’ s conclusions are subject to de nove review.
Paul's Electr: ee . , 104 Hawai'i 412, 419-
20, 91 P.3d 494, 501-502 (2004).
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C. Statutory Interpretation
This court reviews the interpretation of a statute de
novo. Hawai'i Ora, of Police Officers v, Society of Prof.
Journalists Univ. of Hawai'i Chapter, 83 Hawai'i 378, 402, 927
P.2d 386, 410 (1996). Statutory construction is guided by
established rules:
1¢ Language of the statute itself.
fatutory Language 1 plain and
unambiguous, our sole auty ie to give effect to its
plain and obvious meaning: Third, implicit in the
task of statutory construction 18 our foremost
obligation to ascertain and give effect to the
{ntention of the legislature, which is to be obtained
Primarily from the language Contained in the statute
Ttself. fourth, when there Se doubt, doubleness of
meaning, or indistinctivensss or uncertainty of an
expression used ina statute, an ambiguity existe
Feterson v, Hawaii Elec, Licht Cou, Inc., 85 Hawai'i 322, 327-28,
944 P.2d 1265, 1270-71 (1997), superseded on other grounds by HRS
§ 269-15.5 (Supp. 1998) (block quotation format, brackets,
citations, and quotation marks omitted) .
TIT. pIScuSSION
OIP essentially asserts that the circuit court erred in
(2) not giving deference to OIP’s determination that ‘Olelo was
‘an agency subject to UIPA and (2) concluding that ‘Olelo was not
fan agency subject to UIPA. We respond to each argument in turn.
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a a ot
eau Decl me m7
In order to determine whether the legislature granted
OTP the discretion to determine whether ‘Olelo is an agency for
Purposes of UIPA, we first look to the statutory language setting
forth OIP's powers and duties:
The director of the office of information practices:
(2) Shall, upon request, review and rule on an agency
denial of access to’ information or records, oF an
agency's granting of access; provided that’ any review
by the office of information practices shall ot be >
Contested case under chapter $1 and shall be optional
fan without prejudice to rights of judicial
fenforcenent available under this chapter:
(2) Upon request by an agency, shall provide and make
public advisory guidelines, opinions, of other
information concerning that agency's functions and
responsibilities;
(3) pon request by any person, may provide advisory
opinions or other information regarding that person's
Fights and the functions and responsibilities of
agencies unser this chapters
(4) May conduct inquiries regarding compliance by an
ney and investigate possible violations by any
agency:
(5) May examine the records of any agency for the purpose
of paragraph (4) and seek to enforce that power in the
Courts of this Stat
(6) May recommend disciplinary action to appropriate
officers of an agency:
(7) Shalt report annually to the governor and the state
Legislature on the activities and findings of the
office of information practices, incisding
Feconmendations for legislative changes;
(8) Shall receive complaints from and actively solicit the
comment's of the public regarding the implementation of
this chapters
(9) Shall review the official acts, records, policies, and
Procedures of esch agency:
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ao
an
a2
03)
an
as,
as)
an
st agencies in complying with the provisions of
this chapte:
‘Shall inform the public of the following rights of an
individual and the procedures for exercising then:
(A) The right of access to records pertaining to the
Snatvicuals
(B) The right to obtain a copy of records pertaining to
the Individval
(C) The right to know the purposes for which records
pertaining to the individual are kept;
(D) The right to be informed of the uses and disclosures
of records pertaining to the individual:
(E) The right to correct or amend records pertaining to
the Individuals and
(F) The Andividuar’s right to place as
record pertaining to that individual
tement in a
‘Shall adopt rules that set forth an adniniatrative appeals
structure which provides for:
(A) Agency procedures for processing records requests;
(B) A aizect appeel from the division maintaining the
Fecora: and
(©) Tine Limite for action by agencies:
Shall adopt rules that set forth the fees and other charges
that may be imposed for searching, reviewing, or segregating
Alsclosable records, a8
fees when the public intel
‘35 to provide for a waiver of
would be served:
Shall adopt rules which set forth uniform standards for the
records collection practices of agencies:
‘Shall adopt rules that set forth uniform standards for
Sleclosure of records for research purposes:
Shall have standing to app:
of this chapter are called
1x in cases where the provisions
inte question:
eal rules pursuant to chapter 91
Shall adopt, amend, oF
3 of this chapter) and
necessary for the purpo
Shall take action to oversee compliance with part 1 of
chapter 92 by all state and county boards including:
(&) Receiving and resolving complaints:
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(8) Advising 21 government boards and the public about
Compliance with chapter 925 ai
(©) Reporting each year to the legislature on all
complaints received pursuant to section 92-1.5,
RS § 92F-42.
OIP was thus created to facilitate the implenentation
of UIPA, whose purposes are set forth in HRS $ 92F-2:
Purposes; rules of construction. Ins denscracy, the
people are Vested with the ultinate decision-making power
Government agencies exist to aid the people in the formation
land conduct ‘of publie policy. Opening up the governaent
Processes to public scrutiny and participation 2 the only
Viable and reasonable method of protecting the public's
interest. Therefore the legislature declares that it is the
policy of this state that the formation and conduct of
Public polley-the discussions, deliberations, decisions, and
action Of governnent agencies-shall be concucted a openly
as possibie.
The policy of conducting governnent. busins
as possible must be tempered by a recognition of
of the people to privacy, as enbodied in section 6
Section’? of Article 7 of the Constitution of the State of
This chapter =!
ite underlying purpot
1 be applied and construed to promote
‘and policies, which are to:
(1) Promote the public interest in disclosure;
(2) Provide for accurate, relevant, timely, and
Complete government records,
(3) Enhance governmental accountability through a
general polley of access to government records:
(4) Make government accountable te individuals in
the collection, use, and dissexination o:
information relating to thems and
(5) Balance the individual privacy interest and the public
access interest, allowing access unless it would
itute a clearly unwarranted invasion of personal
privacy.
In brief summary, OP's powers and dutie:
include: providing
guidance to the public and agencies as to when agency records
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should be opened to the public: monitoring agency compliance with
UIPA; and adopting procedural rules related to the disclosure of
agency records. Therefore, a matter such as balancing the
public's interest in open government records against an
individual's right to privacy under article I section 6 and
ction 7 of the Hawai'l Constitution is within OIP’s designated
azea of expertise and is reviewed pursuant to the deferential
abuse of discretion standard.
Conversely, threshold issues that relate to the
applicability of UIPA, such as the definition of “agency” or
“governnent record,” are not left to OIP’s discretion. Instead,
they were explicitly defined by the legislature in HRS § 92F-3.
See Paul's Elec. Serv., 104 Hawai'i at 417, 91 P.3d at 499
("[Alaministrative agencies are created by the legislature, and
the legislature determines the bounds of the agency's
authority”); Morgan v. Planning Dept., County of Kauai, 104
Hawai'i 173, 164, 86 P.3d 982, 993 (2004) ("*An administrative
agency can only wield powers expressly or implicitly granted to
it by statute.’") (quoting TG Ins. Co. vs Kauhane, 101 Hawai'i
311, 327, 67 P.3d 810, 826 (App. 2003)).
Because the legislature has defined “agency” in UIPA,
O1P’s determination that ‘Olelo was an agency subject to UIPA is
not entitled to the deferential abuse of discretion standard on
wv
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review. The circuit court thus correctly ruled that the issue of
whether ‘Olelo is an “agency,” as defined by UIPA, is a question
of law to be reviewed de novo.
B. ‘Dlele is Not an Agency for Purposes of UIPA,
The issue of whether an entity, such as ‘Olelo, is an
“agency” as defined in UIPA is one of first impression for this
court. “Agency,” in the context of the applicability of UIPA, is
defined as follows:
Agency" means any unit of government in this state, any
county, or any Combination of counties: departaent;
Snatitution; boards commission; district; couneil; bureaus
office; governing authority; other instrumentality of seate
oF county government; or aamporation or other eatabl is
re ‘or nas Eon ie
any county, but does not inclsde the nonada
functions Of the courts of this state.
iv
HRS § 92F-3 (emphases added) .
The dispute in this case is whether ‘Olelo is a
“corporation[’] . . . owned, ted, or managed by or on behalf
of this State.”
2. OP's position
Orr contends that ‘Olelo is a corporation “owned,
operated, or managed by or on behalf of this State” based on a
* interestingly, UPA does not provide OIP with enforcenent powers to
compel an agency to make governnent record: aveilabie o: to Ligai seek cout
stance to compel disclosure. Instead, UIFA provides that te-geraen,
sagrieved by 2 denial of access to a governnent record may Dring an action
against the agency” and that “the circuit court shall heat the matter ga
noua." HRS $°92F°15"(a)~(0) (emphasis added) -
» Although OTP suggests that ‘Olelo may be an “instrumentality” of the
State, both parties agree that ‘Olelo is a norprofit corporation
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“totality of the circumstances test,” adopted by the Connecticut
supreme court, which considers four factors:
(2) wether the entity performs governsental function;
(2) the level of government. funding;
(3) the extent of government involvement or regulations and
(2) imether the entity Was created by the government
Connecticut Humane Society v. Freedom of Info. Comm'n, 591 A.2¢
395, 397 (Conn. 1991). However, the Connecticut freedom of
information statute is substantially different from UIPA.‘
Significantly, it does not contain the provision at issue herein,
“a corporation . . . owned, operated or managed by or on behalf
of this State.” Therefore, the Connecticut suprene court test is
of Limited utility when determining whether ‘Olelo is an “agency”
within the meaning of UIPA.
OTP next contends that federal caselaw interpreting the
federal “state actor” test supports its position that ‘Olelo is a
state agency under UIPA, OIP initially cites Lebron, 513 U.S. at
400, for its test that finds an entity is a “state actor” when
me Connecticut Freedon of Information Act, General Statutes of
“public agency” or “agency” as:
‘baninistrative oF legislative office of the state or any
political subdivision of the state and any state or town agency, eny
Separement, institution, bureau, board, commission, authority of
official of the state of of any city, tows, borough, municipal
Corporation, school district, regional district or other district or
other political subdivision of the state, including any committee of any
uch office, subsivision, agency, department, institution, bureau,
board, commission, authority or official, and also includes any judicial
office, official or body or committes thereof but only in respect to its
oF their administrative functions.
Sonnacticut Humane Society, 991 A.2d at 396 n.1.
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the Government creates a corporation by special Law, for the
furtherance of governmental obiectives, and retains’ for
itself permanent authority to appoint 4 majority of the
airectors of that corporation, the corporation is part of
the Government for purposes of the First Anendnent’
OTP op. Ltr. No. 02-08, 10.
OIP also cites two additional federal cases to support
its contention that PEG facilitators perform a government
function: Denver Area Educ, Telecomm, 518 U.S. 727, and
Demarest v, Athol/Orange County Television Inc., 188 F. Supp. 24
82 (D, Mass. 2002). Denver Area Education Telecommunication
declared unconstitutional a provision of the federal Cable
Television and Consumer Protection and Competition Act of 1992
that permitted cable operators to prohibit the transmission of
“patently offensive” programming on PEG channels. In a plurality
opinion, the United States Supreme Court held that the provision
violated the first amendnent because the mixed public-private
supervisory scheme of most PEGs rendered the restriction not
“necessary” to the government purpose of protecting children from
offensive material.’ The first amendment was implicated not
because PEG channels were acting on behalf of the state, but
because the statutory provision at issue constituted a government
regulation of free speech. 518 U.S. at 740-41.
® gastices Kennedy and Ginsburg concurred in the result, but they
considered PEG channels to be designated public forums, and thus, would have
applied strict scrutiny to the restriction.
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In contrast, Demarest dealt with a PEG operator’ s
ability to regulate speech that was broadcast on PEG channels.
In Daenarest, the United States District Court for the District of
Massachusetts granted a preliminary injunction against a PEG
facilitator because it found a substantial likelihood that the
PEG facilitator would be found a “state actor” for purposes of
the first and fourteenth amendments. Central to the district
court’s finding that the PEG facilitator in question was “bound
by the mandates of the Firat Amendment” was the fact that it was
created by the government “to serve the community” and all of its
“directors [were] appointed by the government.” 198 F. Supp. 2d
at 91.
OIP’s reliance on Lebron, Denver Area Education
‘Telecommunication, and Denarest is misplaced because these cases
are not relevant to whether ‘Olelo is “owned, operated, or
managed by or on behalf” of the State for purposes of UIPA. The
aforenentioned cases deal with the applicability of
constitutional obligations, not whether an entity is subject to a
federal or state freedom of information law. Furthermore, in the
federal context, entities found to be “state actors” for one
purpose are not necessarily “agencies” for purposes of the
federal Freedom of Information Act (FOI), 5 U.S.C. § 552 et seq.
(2007). See invin Mem’) Blood Bank of the San Francisco Med,
21
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Socty v. Int'] Red Cross, 640 F.2d 1051, 1052 (9th cir. 1981).
In win, the Ninth Circuit Court of Appeals found that the
relevance of Department of Employment v, United States, 385 U.S.
385, 388 (1966), a Supreme Court case that determined the Red
Cross was an “instrumentality of the United states” for purposes
of immunity from state taxation, was “substantially diminished”
in the context of FOIA because Congress had “expressly defined”
what agencies FOIA applied to. Irwin, 640 F.2d at 1052. See
alse Dong v, Suithsonian Inst,, 125 F.3d 677 (D.C. cir. 1997)
(holding that even though the Smithsonian Institute was an agency
© pursuant to FOIA,
Tagency" a8 defined in section $51(1) of this title inciudes any
executive department, military department, Government corporation,
Government controlled corporation, or other establishment in the
executive branch of the Government (including the Executive Office
of the President), or any independent regulatory agency.
5 v.s.c. § 35218) (2007),
Pursuant to
a
C, § SSLI2), the Administrative Procedure Act,
mney” means each authority of the Government of the
United states, whether or not it is within or subject to
review by another agency, but does not include==
(A) the Congres:
(B) the courts of the United states;
(C)_ the governments of the territories or possessions of
tne United state
(D) the government of the District of Columbia:
or except as to
(E) “agencies composed of representatives of the part
(£) courts martial and military commissions;
(G) military authority exercised in the field in tine of
war or in occupied territory; or
(#) functions conferred by sections 1738, 1733, 1743, and
3744 of title 12; chapter 2 of titie’ 41; suvcnapter 12
Of chapter 471 of title 49; or sections 1884,
1891-1902, and former section 1641(b) (2), of title 50,
appendixy
9 U.8.c. § $51(2) (2007)
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for purposes of the Federal Tort Claims Act, it did not meet the
definition of “agency” under the federal Administrative Procedure
Act, or FOIA, from which the Federal Privacy Act derives its
definition of the term “agency”). Thus, we do not believe that
the federal courts’ “state actor” analysis used to determine
constitutional obligations is helpful in determining the scope of
the statutory definition of “agency” under UIPA.
2. ‘Olele’s position
‘Olelo bases its position that it is not an agency
within the purview of UIPA upon the following alternative
grounds: (1) Olelo is not an agency based on the plain and
unambiguous language of HRS § 92F-3 defining “agency”? (2) ‘Olelo
is not an agency under federal Freedom of Information Act
precedent, and (3) OIP is estopped from contradicting adnissions
it made in Morales v. Na Leo ‘0 Hawai'i Inc., No. 04-0107 (D.
Haw. May 4, 2005) (unpublished) .
For the reasons discussed below, we agree with ‘Olelo
that the language of HRS § 92F-3 defining “agency” is plain and
unambiguous and that the application of the undisputed facts to
the statutory definition establishes as a matter of law that
‘Olelo is not an agency within the purview of UIPA.
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Undisputed facts
The circuit court found that the following facts were
not disputed:
elo is a private, nonprofit corporation,
2, ‘Olelo 3 not supported airectly by taxpayer funds.
Rather, it gets its funds trom the cable provider,
‘Mee Warner Cablevision, through access fees paid’ by
viewers.
3. There 1s no government control over “Blelo's
activities. “Olelo's Chier Executive Officer and
att run its day-to-day operations.
{. ‘Dlelors ‘employees are not State Employees.
5: ‘elo has title to its equipment and leases, not the
6. ‘Olelo's activities are not = required function of any
government agency.
OIP did not challenge any of these findings of fact on
appeal, and thus, we will consider them undisputed facts. see
Okada Trucking Co., Ltd. v. ad. of Water Supply, 97 Hawai'i 450,
458, 40 P.34 73, 81 (2002) (“Findings of fact . . . that are not
challenged on appeal are binding on the appellate court.”):
Hawai't Rules of Appellate Procedure (HRAP) R. 28(b) (4) (the
opening brief must contain “[a] concise statenent of the points
of error set forth in separately nunbered paragraphs . . .
Points not presented in accordance with this paragraph will be
disregarded, except that the appellate court, at its option, may
notice a plain error not presented.”); HRAP R. 28(b) (7) ("Points
not argued [in the opening brief] may be deemed waived.”).
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4. ‘The language of HRS § 92F-3 is plain and unambiguous.
‘As noted earlier, the dispute in this case concerns the
statutory language of HRS $92F-3 defining “agency” as a
“corporation . . . owned, operated, or managed by or on behalf of
this State. . . .” Pursuant to our rules of statutory
construction, as we stated in a previous UIPA decision,
our foremost obligation is to ascertain and give effect to
the intention of the legislsture|,) which ie to be cbtained
primarily fron the language of the statute itself. And where
fhe language of the statute is plain and unambiguous, our
only duty is to give effect to its plain and obvious
meaning
Hawai'i Ora, of Police Officers, @3 Hawai'i at 402, 927 P.2d at
410 (citation omitted). As such, the court will attempt to
construe the meaning of words in a statute according to their
“general or popular use or meaning.” HRS § 1-14 (1993).” If the
words at issue are not defined in the statute, “we may rely upon
extrinsic aids to determine [the legislature's] intent. Legal
and lay dictionaries are extrinsic aids which may be helpful in
discerning the meaning of statutory terms.” Singleton v. Liguor
Comm'n, County of Hawai'i, 111 Hawai'i 234, 243-44, 140 P.3d 1014,
1023-24 (2006) (quoting Ling v. Yokovama, 91 Hawai'i 131, 133, 980
P.2d 1005, 1007 (App. 1999).
7 ns gi-24 51
‘The words of @ law are generally to be understood in their rost
known end usual signification, withost attending go much to the
Literal ang strictly grammatical construction of the words as to
their general or popular use or meaning.
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It is within this context that we examine the statutory
language in question: “a corporation . . . owned, operated, or
managed by or on behalf of this sta
a. ‘Delo is not “owned” by the state.
‘The word “owned” is not defined in the definitions
section of UIPA, HRS § 92F-3, and hence we will 100k to legal and
lay dictionaries as extrinsic aids to determine its meaning.
Black's Law Dictionary defines “own” as “[tJo have good legal
titles to hold as property; to have a legal or rightful title to;
‘to have; to possess.” Black's Law Dictionary 1105 (6th ed.
1990). Webster's third New International Dictionary similarly
defines “own” as “to have or hold as property or appurtenance:
have a rightful title to, whether legal or natural.” fiebster's
Third New International Dictionary 1612 (1993).
Te is undisputed that ‘Olelo is a nonprofit corporation
which is the sole title owner of its equipment and the lessee of
its offices and facilities. Although there are relinguishnent
provisions in the DCCA agreement regarding PEG fee accounts,
‘th PEG fees, the DCCA does
facilities, and equipment acquired
not have any present rights in this property. Moreover, the
relinguishment provisions do not include the intellectual
Property created by ‘Olelo, which includes written materials,
Programming, trademarks, the company name, logo, website, and
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other non-tangible property created by “Olelo; ‘“Olelo is the legal
owner of these assets, not the State. Even if its agreement with
the DCCA were termina
, ‘Olelo would still have sole title to
these assets and any other assets not acquired with PEG fees.
Under these facts, ‘Olelo is not “owned” by the State.
bs 2 not “operated” by the state,
‘The word “operated” is similarly not defined in UIPA.
Black's defines “operate” as “(t]o perform a function, or
operation, or produce an effect.” Black's Law Dictionary at
1091. Webster's similarly defines “operate,” as it relates to an
entity, as “to manage and put or keep in operation whether with
personal effort or not.” Wi a New
Dictionary at 1580-81.
‘The undisputed facts are that the State does not
perform the function of providing PEG channel access and
programming because it does not manage or control ‘Olelo’s day-
to-day operations. See infra Section III.b.4.c. ‘Olelo’s CEO
and staff perform all operating functions. Moreover, ‘Olelo’s
employees are not State employees.
Under these facts, the State does not operate ‘Olelo.
% * “ 3
The word “managed” is also not defined in UIPA.
Black's defines “manage” as
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[elo control and direct, to adainister, to take charge of
To conduct; to carry on’ the concerns of a business oF
establishment. Generally applied to affairs that are
Somewhat complicated and thet involve skill and judgment.
Black’s Law Dictionary at 960. Webster's defines “manage,” as it
relates to an entity, as “to direct or carry on business or
affairs.” i n Iai 1 Du at 1372.
‘The undisputed facts are that the State does not
control, direct, administer, take charge of, or exercise skill or
judgment over ‘Olelo’s activities or business affairs. Against
these undisputed facts, ‘Olelo claims the State does manage or
contzol ‘Olelo to some extent through the DCCA’s power to appoint
2 majority of ‘Olelo’s Board. This power, however, is mitigated
by ‘Olelo’s corporate bylaws, which require Board involvenent in
the appointments. When @ Board vacancy occurs, @ nominating
committee made up of board menbers must “develop a slate of
individuals it recommends to £111 Director vacancies and to serve
as officers.” See ‘Dlelo’s By-Laws, § 6.9a. The Board must then
“review the slate of Directors and forward its approved slate of
Directors to the Director of the DCCA and the president of
Oceanic. The Board shall reconnend no less than two (2) menbers
more than the number of vacancies.” Id, Although the siate is
technically “advisory,” the record shows that, in reality, the
DCCA director traditionally, if not universally, makes the Board-
member appointments from ‘Olelo’s slate of recommended
28
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appointees. Furthermore, with respect to OIP’s claim that
‘Olelo’s mandatory reporting of financial and other activities to
the DCCA demonstrates some control by the State, these reports
app
F to be intended to ensure compliance by ‘Olelo with its
contractual obligations to the State rather than to exert control
over ‘Olelo. See Public Health Research Group v, Dept. of
Health, Educ, 6 Welfare, 668 F.2d 537, 544 (D.C. Cir.
1981) (finding that reports intended to ensure contract compliance
were not sufficient indices of governmental control under the
FOIA definition of “agency”).
Under these facts, the State does not “manage” ‘Olelo.
a: Sow or managed.
babehalf of” the state.
‘The prepositional phrase “on behalf of” is also not
defined in UIPA. Webster's defines the phr:
“in the interest of: a the representative of: for the benefit
of.” Webster's Third New International Dictionary at 198
(emphasis added), The definitional phrase most relevant to
“on behalf of” as
whether ‘Olelo operates “on behalf of” the State is whether ‘Olelo
is a “representative of” the State. A “representative” is
defined as an “agent, deputy, substitute, or delegate usually
being invested with the authority of the principal.” Webster's
‘Third New International Dictionary at 1926-27 (emphasis added) .
Tt would thus appear that an entity is 2 representative of the
23
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
State when it substitutes for the state in the performance of a
governmental function.
The circuit court found that “Olelo’s activities are
not a required function of any government agency.” This fact,
not appealed, is consistent with OI? own view, stated in its
pre-2002 opinion letters, that PEG organizations were not
agencies under UIPA. In one such letter, OIP opined that,
“{allthough we believe that Akaku [the Maui PEG organization], by
Providing community broadcasting on Maui, is providing a service
that benefits the public interest, we do not believe it is
performing a governmental function.” OIP Op. Ltr. No. 93-18, 4
In another letter, OP concluded that “because providing
‘community’ broadcasting is not a required function of any
government agency, we do not believe that Na Leo [the Island of
Hawai'i's PEG facilitator) performs a governmental function.”
OIP Op. Ltr. No. 94-23, 2.
Moreover, the record shows that the DCCA director
purposely created PEG facilitators, such as ‘Olelo, with the
intention that PEG facilitators would operate “separately and
independently from the State." In fact, during ‘Olelo’s
formation,
There were explicit discussions about how to form
‘Bielo in a way that would separate it from the State so
that it would be able to operate a an independent, pri
non-profit comunity based organization, We did not want
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‘Delo to be “en arm of the State” or be perceived as taking
“state action.”
Under these facts, ‘Olelo does not perform a government
function “on behalf of” the State.
IV. CONCLUSION
Based upon the plain and unambiguous language of HRS §
92F-3 defining “agency,” the undisputed facts, and the record
before us, ‘Olelo is not an agency within the purview of UIPA.*
We affirm the circuit court's judgment.
on the briefs: y
Lestie Hondo,
athy‘us ratasey_ ana .
Jennifer 2. Brooks Balin
tor defendanescappeliants
Ofisee of tntorast ion
Practices and Les Kondo, Accs Co Newrieey 0.
blzector of" tne extice Ge
Information Practices, in
Ma oetiotea capecity aoe
aul Alston and Lea Hong
(of Alston Hane Floyd Vom 6 Dap
ing) tr plaintife=
tppetiee. ‘oles
TRE corporation for
Coneunsey telersason
* Having so held, we need not consider the alternative arguments raised
by ‘lelo.
3
|
9ef1298c-9175-44a6-9a3b-6db90f520fce | Wilton v. State. ICA s.d.o., filed 03/21/2007 [pdf], 113 Haw. 470. S.Ct. Order Accepting Application for Writ of Certiorari, filed 08/07/2007 [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRARY
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IN THE SUPREME COURT OF THE STATE OF HAWAI'I
==-000-
FREEDUS W. WILTON, IZ,
Pet itioner/Pet itioner-Appellant
H21Kd C1 ow eaee
a2
STATE OF HAWAI'I, 5
Respondent/Respondent-Appellee
No. 27129
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(3.P.P. NO. 01-1-0006; CR. NO. 97-0050)
NOVEMBER 13, 2007
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
QPINION OF THE COURT BY ACOBA,
Petitioner/Petitioner-Appellant Freedus W, Wilton, IT
(Petitioner) filed a petition for writ of certiorari on June 29,
2007. Certiorari was accepted on August 7, 2007, and oral.
argument was held on October 17, 2007.!
Petitioner seeks review of the judgment of the
Intermediate Court of Appeals (the ICA) filed on April 12, 2007,
equed for Petitioner. Peter Hanano argued for
Ppellee State of Hawai'i (Respondent)
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pursuant to its March 21, 2007 Summary Disposition Order (S00),?
affirming the December 1, 2004 “Findings of Fact, Conclusions of
law, and Order Denying Petition to Vacate, Set Aside, or Correct
Judgnent or to Release Petitioner from Custody,” filed by the
Circuit Court of the Second Circuit? (the court). Respondent did
not file a memorandum in opposition.
We respectfully vacate the April 12, 2007 ICA judgment
and the court’s December 1, 2004 findings and conclusions and
order, and remand for an evidentiary hearing under Hawai'i Rules
of Penal Procedure (HRPP) Rule 40 (2007)* for the reasons stated
2 ‘the $00 was issued by Chief Judge Janes S. Burns and Associate
Yudges Daniel R, Foley and Alexa .M, Fujise.
>The Honorable Joel &. August presided.
+ waee Rule 40, entitled Post-Conviction Proceeding, provides in
pertinent part:
(a) Proceedings and Grounde. The post-conviction
proceeding established by this rule shall encompass all
fonmon law and statutory procedures for the same purpos
Including habeas corpus and coram nobis Said
proceeding shail be applicable to judgeents of conviction
and to custody based on Judgments of conviction, as folloy
(0) Exon dudament,” AE any tine bat not prior te fir
judgment, any person nay seek relief under the procedure
forth in’ this rule from the judgment of conviction on ehe
following grounds:
iwi any around which is a basis for collateral attack
(e) “Haazings.
st ‘only tothe
ere ciain t
‘and is without trace of support ether in the
Fecord oF from other evidence submitted by the petitioner
HAAI'T REPORTS AND PACIFIC REPORTER
herein.
The following matters, some verbatim, are from the
record and the submissions of the parties. The pertinent
incident facts taken from the application, state in relevant
part:
(o]n January 27, 1997, @ skicmask-wearing intruder wielding
insta broke into the condominius of Mary Paulsen (Mary)
Gnd her sons, Jon and Jeff. Mary was stabbed and cut
Suleipie tines(.] + ; (Meither Marv, Jon or Jatt saw the
Sneraser" described fi rs
not-bellv, welanina approxinately 220 pounds, "The
Perpetrator ran from the unit and was pursued by security
Guard Christ Hoerser (loerner). doarner pursued the:
ait
ene tore isn as
Tretitioner’s} actual physical sppearance differed
significantly from the description of the perpatrator given
by'the wienesses. [Petitioner] aa about $10" tall and
Sv. Wnen the police arrived at the scene, they
recovered 2 ch ed 338 3l ibe
bandaun, “the aun wae registered £0 (eetiziener| and sone
sitnesses testified that thay had seen his wesrine a similar
*(.-seontinued)
The petits widentiars
bearing of the petition, The court shail receive all
Evidence that 1 selevant and necessary to determine the
petition, including affidavits, depositions, oral testimony,
Eertificate of any Judge who presided at any hearing during
the course of the proceedings which led to the judgm
custody which Ls the subject of the petition, and rel
The petitioner shall have a right to be
present st any evidentiary heating at which o material
Guestion of fact is litigated.
there the petition sileaes
shall serve written
“a stance is silessd to have
been inatfective and said counsel shall have an opportunity
obs heard.
(Boldtaced font in original.) (Baphases added.)
3
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{but not necessarily identical) cap. Some hair samples were
found in the cap, but (Respondent's) expert witnesses could
only testify chat the hairs weould" have originated trom
{Petitioner} and chat the ONA was “potentially” his. Ia
fact, extensive testing for finserprin un
in her shysical evidens
the eriee ag at th
person or iteas in his apartment.
‘scene oF on his
not_present any evidence to counter [Respondent's
sitcunatantial evidence supposedly identifving (petitioner)
‘athe perpetrate;
(Emphases added.)
After a four-day jury trial, Petitioner was convicted
of (1) burglary in the first degree, (2) robbery in the first
degree, (3) attempted murder in the first degree, (4) place to
keep firearms, (5) carrying or use of a firearm in the commission
of @ separate felony, and (6) use of a deadly or dangerous weapon
in the commission of a crime. The court? sentenced Petitioner to
concurrent terms of (1) life imprisonment without the possibility
of parole for the attempted murder conviction, (2) twenty years
each for the robbery and carrying or use of firearm convictions,
(3) ten years each for the burglary and place to keep firearms
convictions, and (4) five years for the use of a deadly or
dangerous weapon conviction. Additionally, the court imposed
restitution in the amount of $15,800.
Subsequently,
(4)n his (March 20, 2001) HREP Rule 40 petition...
APatitionerl raised the {esue of ineffective assistance of
rial counsel for ¢ailing to present evidence thar would
bye excluded hin as the cerpetrator.... (Petitioner)
Boted that Koerner... seated that the perpetrator hed
+ the Honorable Artemio C. Baxa presided.
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outrun him for a significant distance and at one point had
fallen, rolled and chen gotten back to his feet and
continued to run. However,
with evidence ea roe
skills 3 raakit
impossible for him to nave run In the manner
hoerner. The... . materials provided to trial coun:
prior to trial by (Petitioner) included copies of his
Eitety. a orivate iavestigstor acquaintance, ana a colerace
Bhvsicians (Petitioner) aiso included =a
Sexorsadt celal forming Bim
disability
A Sou “on the Petition!
bearis = restate ad facili
on the “return day” the court* expressed its
Amelination to deny Petitioner’s HRPP Rule 40 petition because it
had difficulty “even get [ting] to a point where there’s sort of a
colorable
claim of ineffective assistance of counsel{,]” noting
that the record contained
(Emphases
sone declarations of affidavits by (Petitioner’s} counsel at
tthe time and by [Petitioner] that they [had] reviewed this
matter thoroughly, they had very, you know, intense
discussions, that’ counsel signed’ a declaration, that
Shel, Vicky Russell (Russell), Petitioner’ s appellate
Counsel, ] had spoken to trial’ counsel (Sereno) about his
Situation and whe was a very experienced, even then,
Geiminal defense attorney and had spoken to the investigator
favolved.
‘So there area number of things said underoath
odicaring that not only with regard tothe allegations of
rE erish, bat
ith regard to having spent tise with (Petitioner)
Siscussing the benefice o Lack thereof of an sspeal versi
2 nee) “Rule 40 petition, when you have statenents unger
Oath by [Petitioner] and by his counsel.
added.)
on the return day, the court heard argument regarding
Petitioner's allegations that his appellate counsel rendered
The Honorable Joel £. August presided.
5
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ineffective assistance, but there was no argument regarding his
claims of ineffective assistance of trial counsel. The court
ruled inmediately on the HREP Rule 40 petition without receiving
any further evidence. The court's oral ruling declared that it
appeared
that whatever decisions were sade were based on strateay as
‘TL think there nav have been very qood reasons why
serteln matters were not provaht before the tury,
farticularly with regard to the underlying disease which
{arstloner] was claiming had’ signitleane efzect on his
ability to move. «=
nd 1"
fon between the court
<7 the Tachibana colloquy that went
sad’ [Petitioner], and it's quite clear
(Emphases added.)
on Decenber 1, 2004, the court filed its Findings of
Fact, Conclusions of Law, and Order Denying Petition to Vacate,
Set Aside, or Correct Judgment or to Release Petitioner fron
custody.
m1.
‘The ICA affirmed. The ICA decided Petitioner “hi
not
met his burden of establishing ineffective assistance of coun:
by showing ‘specific errors or omissions,’* $00 at 8 (quoting
State v. Wakisaka, 102 Hawai'i $04, 514, 78 P.34 317, 327
(2003)), and “tailed to show that the alleged specific errors or
omissions of his trial counsel resulted in the possible
impairment of a potentially meritorious defense,” id.
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ur.
‘The question presented by Petitioner is “{wJhether the
ICA gravely erred in holding that the (court) did not err in
denying (Petitioner’s] HRPP Rule 40 petition where his trial
counsel's failure to present exculpatory evidence in his defense
constituted ineffective assistance of counsel[.]” Petitioner
argues the “court's decision was erroneous for two reasons, first
because the [court] utilized an incorrect standard in ruling on
the merits of [the] Rule 40 petition and second because the
[court's] findings of fact [(findings)] and conclusions of law
[(conelusions)] upon which its ruling was based were in error.””
Petitioner correctly maintains that the applicable standard
imposes the burden of establishing ineffective assistance of
counsel on the defendant, requiring him to prove
) the following established standards apply. “A finding of fact is
clearly erroneous when (1) the Fecord lacks substantial evidence to support
the finding, oF (2) despite substantial evidence in support of the finding,
the appellate court is nonetheless Left with « definite and firm conviction
that aimistake has been made."” Fog, State, 106 Hawat's 102, 112, 102 B.34
346,386 (2004) (quoting State vw. Okumura, 78 Hawai'i 383, 392, 894'P.24 80,
a3 {a395)).
“substantial evidence” means “‘oredible evidence which is of
sufficent quality and probative value to enable person, of reasonable
Gaution to reach a conclusion.'" state v. Bui, 10¢ Hawat's 462, 467, 92 P.3d
G71, (76 (2008) (quoting state v, Silva, 75 Naw. 419, 432, 864 P.24s83, 590
(2983) (ellipses, brackets, and citations onitted)).’ furthermore, “appellate
courts will give due deference to the right of the trier ‘eo determine
Eredipility, weigh the evidence, and draw rt
evidence adduced." In re Dog, 107 Hawai'i 12, 19, 108 P.3d 966, 973 (2005)
(auoting Skakeres junenay 77 Hawal't 425, 432,"986' 0.23 766, 709" top. 1990
(citation omitted) «
othe circuit court's conclusions of lew are reviewed under the
xight/wrong standard.” State v, Diaz, 100 Hawai'i 210, 216, 58 P.3d 1257,
3263 (2002) (quotation marks and citations omitted).
1
‘*47OR PUBLICATION IN WEST! § HAMAI'E REPORTS AND PACIFIC REPORTERY+#
1) that there were specific errors or omissions
reflecting counsel's lack of skill, Judgment, oF
Giligence; and 2) that such errors’ of omissions
Eosulted in either che withdrawal or substantia!
aca, 74 Haw. [5%,] 66-67, 837 P-2d(1298,]
1308 T9927
nt] nead Snly show a -posiible impairment of a
impalement of actual preludice. State v. chrletian,
36 Hawai'i (407,] 415, 967 B.2d (239,] 251 [(1998)]
Wakisaka, 102 Hawai's'ae 516-17, 76 P.34 a 329-30.
(Emphasis in original and emphases added.)
1.
‘The court's findings relevant to the facts adduced at
trial and unchallenged by the application except for 9 and 22 are
8 follows:
1. On January 27, 1997, @ burglar broke into Unit
118 of ‘the Mau! Sunset’ located on South Kine! Road, Rines
Maul, Hawai't ag about 3:00 ag, through @ lanai screen
Sor!
2.4
ahs awoke, the buralar attach
Fepeatediy stabbing her with 2 xnife.
Se Mare”
Mori's to gona, Jeft, age 23, and Jon, ace 26,
were atieco in the bedroom and sare avakened by Wary's
‘thetassaTlank, wno stabbed Jon in the right forears.
t
to his chin and
An the hallway, and received injuri
forearm from the assailant’s knife
. a from
Oait s1is, and whi
‘Sut the Zrone door,
. fosener ch
‘toward South Kihei Road. The aagailant
the eae asteing sositl
z Tato a seall housing ares, throwing or
Gropping an underwater casera and scuba dive computer as he
7, Across South Kinel Road, Paula Behnken wae
her-wall, heat net the-shea
in her yard, and heard the poinckana pods in her yard being
crunched as’ though someone was walking on then.
3. s nexe = “
‘The panting left when the sounds of sirens
‘seefoR PUBLICATION IM WEST’ § HAKAI'T REPORTS AND PACIFIC REPORTER*#*
+ Istel and Hose the
TOs ropeed a aus pull
Ti. The gun found in Unit Bile was registered to
Petitioner
12. Before the ner _ouned a
fulls cab identical to the one found in S113.
TS? “when contact eto:
which he said he received
‘dion he bumped into a wall,
T¢, Petitioner had fo alibi except that he clained to
igo "tna searen of nie residence by police,
Té. Petitioner clained not to know when he had lost
the Bulls cap:
[it “petitioner had a jury trial from Apri 6, 1998,
to April’ 13, 1998, and was represented by counsel, (Sereno].
1. At teia1, Jonathan Good, 2 coworker of"
ELE to the date of the offenses.
19, "At trial, Maul Police Department Detective Brian
kaya testified that’ petitioner Lived within tuo miles of the
20. The evidence at trial established that Betitioner
an Scuba
Gove in dive tour[s) conductea By his employer.
21. ‘The evidence at trial also established that
patie se eran
23. Rt trial, nee” # Pan
notes of martial arts exercises, was _aduitced inte evidence,
Ee waa the testimony of Aarlense Brown, whe testified shar’
Petitioner asked her for $5,000.00 so he could go to Japan
23, Haat Police Departsent Lieutenant Glenn Cusso
testified at trial the Petitioner told Cuomo that he was a
pla bunter
24. Also aduitted into evidence at trial were nine
pages of detailed handwritten nates that police recovered
fron Petitioner and that related to events that occurred
25. On April 6, and April 13, 1998, during trial, the
79 Hawa 226, 231, 900 P-2d 1233, 1258
(1995), “af bis tight te testitv, and Petitioner advised the
court inst he understood his Tight to testity and responded
Syes" when the court askac hin if the decision not t.
Teatify waa nis decision.
26. Petitioner did not testify at his trie
27. petitioner's trial counsel did not call any
witnesses of snter other evidence for the defense during the
Era
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28. On April 13, 1998, che jury found Petitios
guilty of the offenses of Burgiary in the First Degree
{count One}, Aobbery in the First Degree (Count Two),
Attempted Murder in the First Degree (Count Thres), Place to
Keep Firearm (Count Four), Carrying or Use of Firearm in the
Commission of a Separate Felony (Count Five), and Use of
Deadly oF Dangerous Weapon in the Commission of a Crime
(Count Six)
(Emphases added.)
Relevant procedural and post conviction matters as
found by the court and unchallenged by the application are as
follows:
30. Petitioner was convicted and sentenced for the
foregoing offenses on July 30, 1998.
a
[Russell] represented Petitioner at his
30,1990, and for portions of both of Petitioner's post=
conviction proceedings.
, through Ms.
“Ih the present matter, eetitiones,
nussetl, lean Verified Petition to Yacete, Set Rade, Or
Correct’ Judgnent Or To fel Eitioner From custody on
March 20, 2001, alleging that Zetitionee’ I
betitioner hes IMS| and therefore wag unable to-run. as dig
it'trial (3) did nor call [Kraul as 2 witness to fast
[ngt_be advised Petitioner to seep the handeritten ootes
sSduce any evidence a part of 2 defense Cesewin-chi
“38. On October 19, 2001, Petitioner moved to amend
hhis petition, and on October 28, 2002, Petitioner’ s Hotton
‘To Reinstate HRDP Rule {0 Petition With Pro Se Addendum, Ia-
Forma Pauperis And Request For Appointaent Of Counsel
Notions was filed.
39. On Hay 28, 2004, the Court filed it (acl Order
Directing office Of the Public Defender To File Anended Rule
40 Petition On Petitioner's Behalf And Olrecting State To,
File Response To Said Petition.
(Bmphases added.)
v,
Apparently, as noted by the court, the fact that
Petitioner had MS was not presented at trial. Among the items
attached to Petitioner's petition were five pertinent items.
10
{POR PUBLICATION IN MEST’ § HAA'T REPORTS AND PACIFIC REDORTED
First, Petitioner's February 5, 2001 affidavit
1 stated to (Sereno) both in writing in that letter
digo stated directly to (Sereno), verbally, that I have
permanant damage to the motor mov kiius of ay lett
Yegy and ay left leg is incapacit ‘result of my
having had [MS] for many years.
Petitioner indicated that “[t]he disability afflicting ay left
leg was diagnosed as [MS] in 1989; T have been unable to run due
to that disability [for] some time prior to the diagnosis in
1989," his medical records “show my history of [MS] and the
effect of the disease on my gait, such that any competent medical
expert could have described the meaning of . . . those
records(,]” and “I informed my trial attorney, [Sereno] of ny
WS} induced disability, and on more than one occasion attempted
to provide trial attorney [Sereno] copies of my medical records
showing the [MS] disability so that [Sereno] would be able to
review and use that information defensively at trial.”
As to his desire to testify, Petitioner averred that
“although 1 re
atedly stated my wish to testify to [Sereno], and
in particular, with regard to my disability and inability to run
and my keeping notes on the recommendation of Mr. Krau, T was
repeatedly dissuaded from my wish by my attorney.”
8.
Second, an apparent undated pretrial letter from
Petitioner to Sereno indicated Petitioner advised Sereno he could
a
‘se4f0R PUBLICATION IN WEST’ S HAMAL'T
PORTS AND PACIFIC REPORTERS#*
do a jog for a short distance but not run because of MS, and that
he believed it was “important to speak to the jury.”*
c.
‘Third, a November 1, 2000 affidavit of Ira Chang, M.D.,
indicated the doctor examined medical records from Colorado which
showed Petitioner vas “first seen in 1989 for the following
+ petitioner attached a copy of this undated redacted letter from
Petitioner to his attorney prior to trial to his original Rule 40 petition.
Eitioner also attached an affidavit in which he attested to the content
the letter.” Im his letter, Petitioner explained that he "put together (a
List of information, ideas and questions for {counsel's} perusal” and stal
that he would appesciate 1t'1f counsel “would look then over and give, [nis] an
answer to the questions and [an] opinion on the ideas and information”
Contained therein. the leeter states in pertinent par
of
oe
re that 1 cannot walk. i-ride my bicyele as a
form of therapy and exercise. Secause T have toe clips on
the pedals T can se my Fight leg to assist my Left leg when
Se'gets fatigued and still get a lot out of the exercise for
ny eee leg.
Wy" Sado abL1sties have been drastically changed, I can no
longer nove with the agility and speed chat T once had.
However with ny experience and upper-body strength (although
greatly diminished) I can still workout and hold ay own witn
Rost Judo players
[Redacted text)
I have read in sone of the material(s} T have gone
through in the Law Library about
‘Siossrexanined. Ie this something that canbe done in
fy coald that bes possibility? t haven't been able to
find where T ead it, don’t know if it is 2 currently
allowed rule or if maybe I read it in a paperback book about
2 trial, I do get confused and forgetful at tine ((¥S))-
But no_matter where [read it 1 think it is important to
‘speak to the Jury in one wavi,]-shapeT, I or fore.
Tam going to mail this to you today as T want you to have
an opportunity to go over it before we talk again.
(Emphases added.)
12
‘s++FOR PUBLICATION IN WEST'S HAAI'T REPORTS AND PACIFIC REPORTERS**
symptoms: a) recurrence of double vision; b) left-sided
clumsiness; c) difficulty with walking due to difficulty with
[sic] use of right leg,” an “examination showed that
[Petitioner's] left leg exhibited an upper motor neuron pattern
of weakness; [Petitioner's] gait was such that he had a tendency
to fall to the left on tandem walking and to have somewhat poor
ankle dorsiflexion on heel walking,” and upon further testing,
Petitioner was “ultimately diagnosed with the disease of (NS].”
>.
Fourth, a State of Hawai‘i Department of Public Safety
consultation Record of February 10, 2000, indicated Petitioner
has a “history of symptoms of [MS] that began in 1989. . . and
presents records that seem to support the diagnosis of (MS from]
the Rocky Mountain Multiple Sclerosis Center in Colorado.” The
consultation record examiner stated that, “although [Petitioner]
has records documenting that neurologists have said that he has
[MS], 1 do not have records documenting the exact imaging or
laboratory testing that supported this diagnosis.” The examiner
noted that “(t]he patient previously had episodes of weakness in
the lower extremities and diplopia.” The examiner also noted
that Petitioner had an “eight or nine month history of mild
increased fatigue, occasional double vision, and occasional
increase in stiffness, primarily in the lover extremities on the
left.”
13
FOR PUBLICATION IM WEST'S HAWAI'T REPORTS AND PACIFIC REVORTER
z.
Fifth, also attached to Petitioner's Rule 40 petition
vas a January 25, 2001 affidavit of Krau, a licensed private
investigator and neighbor of Petitioner. Krau’s affidavit may be
considered in two respects.
Kraus affidavit declared he has known Petitioner “for
some years, including a significant period of time prior to his
arrest on the charges at issue herein.” According to Krau, he
was Petitioner's neighbor in Kihei, Maui, and had “numerous
opportunities to observe him walk, attempt to jog and ride nis
bicycle.” Krau noted that “when walking, [Petitioner] hi
distinct gait which cause(s] him to limp due to weakness in the
left side of his body.” “When jogging,” Krau explained, “it is
impossible for [Petitioner] to do so for any distance.”
Additionally, “when attempting to exercise by Jogging,
(Petitioner's) gait is slow, labored{,) and hampered by a heavy
Limp due to the weakness in the left side of his body.”
Krau also stated in his affidavit that he was aware
that Petitioner “traveled by bicycle and I am familiar with the
toe clips on [his] bicycle.” As Krau explained, “the toe clips
were in place, not as racing clips, but in order for him to use
his right leg to pull up on the clip in order to compensate for
the weakness in his left leg... .” Finally, Krau stated that
he was “aware of the distance the perpetrator in this case ran in
u
‘+40 PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER!*#
order to elude pursuit by the Maui Sunset condominium security
guard at full chase,” and “would estimate that distance to be not
i
8 than 500 feet.”
As to the second aspect, Krau stated in his affidavit
that “{sJhortly after (Petitioner] had engaged in his first
discussion with the police, he contacted me and I instructed him
to take notes and to write down everything he could remenber
about the victims, any contact he may have had with them, and any
other information which may be of value in order to help the
police during their investigation.” Krau further stated that
“()e was at my instruction that these notes ve
made after the
fact of the crime in order to facilitate the police
investigation.” However, as indicated infra, it does not appear
the application focuses on this aspect of Krau’s affidavit.
vt.
The court's findings (apparently inferred from the
matters in the
cord) that reject Rule 40 relief are as follows,
findings 41, 42, 44 and 45 being specifically highlighted by
Petitioner for challenge:
41. from the record it appears that Petitioner's
briga potmeri' fablute be sideee gridienas of Exeiianas’s,
Feflecting @ lack of skill, Jodgnent, OF
GiTigence, and it didnot result in the withdrawal oF
substantial impairnent of 2 potentially-neritorious defense.
42. The affidavite attached to Fetitioner’s petition
do not ectablisn that Petitioner uae Gnsble to run st the
43. in Light of the fact that Petitioner's registered
gun and & chicago Bulls cap identical to Petitioner's were
found in vale Bi18,
15
**47OR PUBLICATION IM WEST! § HAWAI'I REPORTS AND PACIFIC REPORTER*
‘al_that fetitioner’s (Msi prevented him from running. the
the eeidense thy geil wile in
Eke Maul Sundet parking lot and that loud eanting wag chen
heaed outside che badraom windows 2 (eehaken] and tEnns]s
Girectly across the Wasi Sunset.
aon se have deen a
defense of being unable to run due to (MS| to be
consistent vith sbjective evidence of the range of various
ical an Eies that Si
Prior to the offense,
45. From the record, and in Light of [Respondent’s]
idence as a whole bearing upon Petitioner's guilt,
Petitioner's trial counsel”s decision not to call (krau) to
testify that he told... Petitioner to make notes of his
activities surrounding the tise of the offense was nat an
error or onission reflecting a lack of skill, judgrent, oF
Giligence, nor did it roguit in the withdrawal or
Substantial ispalraent of a potentially-meritorious defense,
nee tha a leven A
n havi to avoid penal
Tiabitity rather than having been s documentation of actual,
events.
is. In addition, Keau's testimony might have impaired
Petitioner’ s"derense by focusing more ateention on
Petitioners’ notes, which stated that Detective Koya told
Petitioner about a crine dnvolving a lady and nar’ two\ sons,
a" fact which Detective Kays denied
Ai. Petitioner's tfial counsel’ s decision not to calt
Petitioner aS a witness was not an seror or omission
reflecting a lack of skill, Gare, and diligence, and it did
hot Fesule in the withdrawal or Substantial ingaitneat of @
fontially-neritorious defer
Potene{a. vie appears from the ecord involving Petitioner's
Tachibana colloquy by the [eloure on April 13, 1996, thet
destity, aad that the leloast told Petitioner That one
45~ “ven if, as Petitioner clains, his counsel
repeatadiy told him not to testify at trial, that is not an
error of oaisaion.
50. It is one of defense counsel's responsibilities
at trial to advise Ais client snether or not {tol testify,
51. tn light of the record respecting Petitioner's
April 13, 1998 colloquy with the (cloure on his right. to
testity, Petitioner's waiver of his constitutional right to
testify’ in his own defense was both knowing and voluntary.
52." In Light of the substantial evidence implicating
Petitioner at trial, Petitioner has not show how trial
counsels decision not to put on a defense cage-in-chiet was
an error or omission reflecting a lack of skill, juagect,
Or diligence, and that the decision resulted in the
‘withdrawal of substantial impairment of a potentially-
Reritorious defense.
(Emphases added.)
16
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vir.
Petitioner asserts that as to the first “reason” in his
application, the court’s application of the relevant standard was
incorrect.
= requiring that (Petitioner] establish he
Sposaible impairment, rather than the probable impalement,
of a potentially meritorious defense,” Wakisake, supra, the
(court) effectively utilized a standard akin to the more
ateingent federal standard rejected by the Hawal'l Supreme
Court in Briones v. State, 74 Haw. 442, 462 n.12, B48 F.2d
966, 976-77 n.12 1993}, which would require {Petitioner} to
prove chat it was peobsble (versus possible) that trial
Counsel's errors affected the results of the proceedings.
(Emphasis in original.) Applying this first “reason” in
connection with the second “reason,” Petitioner challenges
several findings that are discussed herein, in seriatim.
A
As to finding 9, Petitioner maintains that “(t}his
+. wholly omitted the fact that the witnesses had also
provided estimates of the height, weight and hair color of the
perpetrator that were markedly inconsistent with (Petitioner's)
actual physical appearance.” In its answering brief, Respondent
argues that
‘there was substantial evidence in the record to support the
finding = =
1)" (Mary) “testified that the man wore dark colored
clothing, dark gloves, and a dark ratty looking ski
2) [Weed] cestisied that the attacker was a “fairly good
sized man in a ski mask holding a knife all dressed in
Bleck(;]" wearing long sleeves and glove:
3) (Gon) testified that the attacker was “all dressed in
dark clothing{,1* with "Long sleeves and something
that covered his whole upper torsol,” gloves, and a
oki mask.
a
"FOR PUBLICATION TN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER!
4) [Woerner) testified that the attacker wore a black ski
snask, black gloves, black pants, and camouflage. long
Sleeved shire
on review of the transcripts, the testimony as stated above is
correct, and indicates that there was substantial evidence to
support the finding. As Petitioner maintains, however, the
finding omits evidence of the inconsistency in the descriptions
of the perpetrator as compared to Petitioner's actual person.
But so far as the finding goes, it was not clearly erroneous.
8
As to finding 22, Petitioner argues that “the court's
recollection of Brown's testimony as stating that [Petitioner]
went to Japan to study martial arts was simply incorrect. In
fact, Brown testified that [Petitioner] had stated that he was
going to Japan to teach English and that she had only assumed
that he wanted to also study (klarate.” fut in its answering
brief, Respondent states that
1d that[] [Petitsoner’ s]
because "he wanted to go to San
Francisco and take english as # second language 30 he could
teach in vapan”; and that [Petitioner] wanted to go to Japan
“fblecause of his incerest. in karate.” “The fact that it wag.
Brown” say Fea ar as to
(Emphasis added.) According to the relevant transcript, the
following was asked of Brow
Q. And why did he want to go to Japan?
A. believe because of his interest in (k)azate.
id you know of his interest in (k) arate?
ter of conversation in the group, he
had a ftiend with him who had taught him karate T suppos
18
‘+4FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REVORTER*®+
‘The responses garnered from Brown tend to support Petitioner's
position that the interest in karate came from Brown's
supposition and not from Petitioner’s stated intent. Thus the
finding vas partially erroneous, insofar as it definitively
indicated Petitioner was going to Japan to study martial arts.
virr.
a
‘The following findings require extended discussion.
As to finding 42, Petitioner contends that it
erroneously states that the “evidence did not establish . . . he
was unable to run at the time of the offen:
TncluaTing] a physician's report chat
“Showed that the left leg exhibited an upper motor neuron
pattern of weakness,” and that he had a tendency to fall to
Ene left on tandes walking and to have somewhat poor ankle
Gorsifiexion on heal walking.”
(Emphasis added.) In respon!
in its answering brief,
Respondent contends that
‘the “consultation Record” from the Department of Public
Satety 12 inconclusive. The “evaluation” was apparently
done on February 10, 2000(,] .... over three years after
the January 27, 1997 . . . attack’ on the Paulsens. In
neurologic complaints
in stitiness,
‘on the left:
except
primarily 4a the lower extremiti
(Emphasis in original.) Further, Respondent argued:
Neither (Petitioner's nor Krau’s] affidavit denonstrate()
'S physically incapable of running at the
of the offenses. |... « [Petitioner's] own affidavit
that (Petitioner) could run, albeit at a slow
a9
‘470 PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER+#*
(t)he aftidavit of Tra chang, 4.0., merely says...
he reviewed (Petitioner’ s] medical cacotda from 1989 which
Indicated [Petitioner] had Sone left-sided clumsiness,
weakness and alleged difficulty walking, and that
[Petitioner] had Been dlagnosed with (MS, but [here is no
spinion or conclusion that [Petitioner] would have been
Physically unable to run at all
(Emphases in original.)
8
i.
As to findings 41 and 43, Petitioner apparently argues
that it is a “recitation of the correct standard, {but} the
[court's] application of the standard was erroneous” because
“none of (Respondent’s] witnesses could directly identity
[Petitioner] as the perpetrator{,]” “the physical descriptions
provided by the witnesses differed significantly from
(Petitioner’s} actual physical appearance(,]”" and “the only other
evidence... was. . . that a cap similar to one worn by
(Petitioner) contain{ed] DNA that was ‘potentially’ his and a gun
+ + was registered to him (both of which [Petitioner] would
have explained had been stolen from his apartment).”
2.
With respect to finding 43, Petitioner repeats that
“the [court] had taken it upon itself to go beyond evaluating the
possible effects of the omitted evidence and instead based its
decision on its speculation as to what would have been the
piobable effects of the evidence on the jury's decision-
making(.]” (Emphases in original.)
20
FOR PUBLICATION IN WEST’ HAMAI'T REPORTS AND PACIFIC REDORTERS#*
Similarly, as to finding 44, Petitioner contends “[ilts
supposition . . . of what the jury ‘could’ have done . . .
indicates that the [court] had usurped the role of the jury at
trial, instead of assuming its . . . role as a court ruling ona
motion alleging ineffective assistance[.]”
c
Petitioner’s application did not present any argument
as to the “notes” referred to in finding 45,% except to state
that the court should not have decided that the jury could have
Gisregarded the notes as manufactured, but “should have strictly
Limited itself . . . to the possibility that . . . [Petitioner’s]
MS impaired his ability to run.”
1@ “notes” aspect of finding
45 thus is not discussed further.
+ with respect to finding 45, Respondent asserts (1) “any such
testimony by Keau would have enphasized the falsehoods contained in the notes
relating to statenents allegediy made by the police to Petitioner!” becaus
[Petitioner] knew that the crime involved a lady and
| Detective Kays never disclosed any of chose facts as
notes claimed{,|” (2) "if Krau testified that he advised
[Petitioner] to make notes of his activities in order to ‘facilitate the
police investigation{,]’" this *woald have further exacerbated [Petitioner’s)
Eredipility problens because [Petitioner] never offerea those notes or the
information Contained therein to the police to ‘assist’... thelr
investigation(,]" inasaueh as “ehe notes were recovered through the execution
of a search warrant of the backpack [Petitioner] wore at the tine of his
Srrest(,] . «+ days after police initially contacted (Petitioner, |”
(3) “since the nine handueitten notes contained material which alleged
Improper police tactics, Keau’s proposed teatinony that the notes were created
“to help the police during their investigation’ and ‘to facilitate the police
investigation’ would have been laughable,” (4) *Krau’s testinony would have
-v'Tenpnasized that there were corrections to [Petitior
{indtes] which were more consistent with having been mans!
having been @ documented actual event (1.”
an
FOR PUBLICATION IN WEST’ § HAMAI‘E REPORTS AND PACIFIC REPORTER:
.
In its answering brief, Respondent responds with
respect to the foregoing findings 41, 42, and 44, that (1) “none
of [Respondent's] witnesses could directly identify [Petitioner]
as the perpetrator. Recognizing this, [Sereno] apparently
decided, as a matter of sound trial strategy, not to put forth
any evidence[,] . . . [but] simply to argue ‘reasonable doubt’";
(2) “according to the ‘undated redacted’ pretrial letter to
[Sereno], [Petitioner] apparently informed [Sereno] of his
physical disability and the effect it’ had on his alleged
inability to run[,]” and [Petitioner] stated, '(I]£ the trial is
going well and you don't want me to testify could that be a
possibility?/” and “(blased on this statement, it is cl
ie that
[Sereno] advised [Petitioner] to evaluate the strength of
[Respondent’s} ca
in-chief before deciding whether or not to
testify"; (2) (a) “evidence that (Petitioner's MS] restricted oF
prevented him from running would only have strengthened and/or
corroborated [Respondent's] case against [Petitioner]” because
“Islecurity guard Hoerner testified that the assailant fell,
‘rolled’ into a sitting position -- not unlike a martial arts
move ~~ and then ran across the street into a small housing
area[,]” (b) “Behnken and Enns testified to being awakened by the
sound of a man, loudly panting and out of breath,
consistent with a person with a physical disability such as
22
‘*¥+0R PUBLICATION IM WEST’ S HAWAI'T REPORTS AND PACIFIC REDORTERS®#
[MS1"; and (4) “evidence that (Petitioner) was unable to run
- would . . . contradict the . . . undisputed evidence” “that
[Petitioner]: [(a)] regularly rode a bicycle; [(b)] was an avid
scuba diver; ((c)] was an admitted pig hunter; [(d)] was trained
in the martial arts; and {(e)] worked out at the gym.”
IK.
In his application, Petitioner does not
cifically
pinpoint any conclusion for challenge but maintains generally
that the “{conclusion: + upon which [the court’s} ruling vas
based were in error.”
Conclusion 1, that
the burden of establishing ineffective
counsel, and must meet the following two-part
1) that there were specific errors or omission:
3 Tack of skill, judgment, or diligence;
rors or omissions resulted in either the
wtendra sneial inpairment of a povent Lally.
hneritorious defenses, State v. sith, 62 Hew. 204, 309, 712
P.24 496, 500 (1986); State ve Morishioa, 65 Haw.” 354, 369,
S52 12d" 1119, (1130 (1302) State's Antone, 62 aw. 348,
348-49, 615 P.2d 101, 104 (2980) (,]
is not entirely right. Conclusion 1 contains only a portion of
the applicable standard. As discussed infra, this court has
elaborated on the second prong of this &
it) explaining that a
determination of “whether a defense is ‘potentially meritorious’
requir
an evaluation of the possible, rather than the probable,
affect of the defense on the decision maker.” Briones, 74 Haw.
at 464, 848 P.2d 996, 977 (emphasis added) (footnote omitted) .
23
FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS+#
8,
Conclusion 2, in part states that “{s]pecific actions
or omissions alleged to be error but which had an obvious
tactical basis for benefitting the defendant’s case will not be
subject to further scrutiny.” (Citing Briones, 74 Haw. at 462-
63, 848 P.2d at 976. (Citation omitted.)). In arriving at the
decision that “it was tactically advantageous for Petitioner's
trial counsel not to assert Petitioner's [MS] as a defense,” the
court stated:
The affidavits that Petitioner submitted . . . do not
bLish that Petitioner could not run at the tine of the
offense. Moreover, there was substantial evidence of record
in the tial that fetitioner waa capable af a range ol
‘Alternately, the
fant’ Falling white being pursued and the loud panting
1ed by Behnken and Enns outside thelr windows were not
Inconsistent with someone with a physical disability,
(Emphasis added.) Accordingly, also as set forth in conclusion 2
regarding “trial counsel's decision not to adduce evidence that
Petitioner was unable to run due to (MS,]” the court declared
“Petitioner has not met his burden” of showing “ineffective
stance of counsel{,]” apparently based on an evaluation of
Respondent's evidence against Petitioner as “substantial.”
c.
With respect to Petitioner’s failure to testify, the
court ruled in conclusion 3 that “Petitioner told the (court)
that he knew it wi
his decision, not that of his counsel,
whether or not to testify, and then Petitioner did not testify.”
24
‘se4f0R PUBLICATION IN WEST! § HAWAI'T REPORTS AND PACIFIC REPORTER
Relatedly, in conclusion 4, the court ruled that Petitioner had
not demonstrated how Sereno’s advice that Petitioner not testify
on his own behalf amounted to ineffective assistance of counsel
because “(i]t is one of defense counsel's responsibilities .
to advise the defendant on the question of whether or not he or
she should testify." (Internal quotation marks, citations, and
brackets omitted) (ellipses in original.)
In conclusion 5, the court stated that Petitioner had
not met his “burden of establishing that” the decision not to put
on a defense ca
An-chief “reflected a lack of skill, judgment,
or diligence(] . . . that resulted in the withdrawal or
substantial impairment of a potentially-meritorious {sic]
defense.” Thus, the court concluded that Petitioner was not
entitled to relief under HRPP Rule 40 on this basis.”
x,
We observe that the correct standard to apply in a HREP
Rule 40 proceeding, as noted by Petitioner in his opening brief,
is that
Lin any claim of ineffective assistance of tris:
‘Gounsel, the burden ie upon the defendant to.
‘Ganonsefate that, in light of all the circumstances,
5 not objectively reasonable -
f competence demanded of
"Tn [Botonel, we set
25,
FOR PUBLICATION TM WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERSS®
cspecitic ercore or omissions reflecting
har “thew ineither the
withdrawal or substantial impairment of potentially.
beritorious dafenans
BrionesiL, 14 Haw. (at] 462, 848 P.24 [at] 976. .
Cinternal citations omitted) [(ellipaes and brackets in
original) )
® = sn evaluation of the
Gacision gales. Appellate courts defer to the Judge
Of jury as fact finder unless no substantial evidence
ekisted for their finding because the fact finder 13,
Gniquely qualified to evaluste the credibility of
witnesses and to weigh the evidence
# actual” prejudice {s requir
inelfective assistance of counsel.
lida) at 464, 840 P.2a at 577 (Footnote and citations
onitees) .
(Emphases added.) As Briones indicated, the court, in
determining a “potentially meritorious” defense, evaluates “the
possible” (as opposed to probable) “effect . . . on the decision
maker,” at least with respect to whether “a defense is
potentially meritorious.” 74 Haw. at 464, 848 P.2d at 977.
Again, Petitioner maintains that, in applying the standard, the
court rather than “evaluating the possible effects of the omitted
evidence . . . , instead engaged in a prediction of the
credibility, weight, and effect that the evidence would have
probably had on the jury's verdict.” (Emphases in original.)
Tt would appear that a court should not determine
credibility or weight of the evidence in a HRPP Rule 40
Proceeding. See Briones, 74 Haw. at 464, 848 P.2d at 977
("Appellate courts defer to the judge or jury as fact finder
26
/"F0R PUBLICATION IN WEST’ 8 HAWAI'T REPORTS AND PACIFIC REPORTER*S#
unless no substantial evidence existed for their finding because
the fact finder is uniquely qualified to evaluate the credibility
of witnesses and to weigh the evidence.” (Footnote and citations
omitted.)); Aplaca, 74 Haw. at 72, 837 P.2d at 1308 (stating that
“we, as an appellate court, cannot predict the exact effect these
prospective witnesses would have had on the trial court's
assessment of [the complainant's] and (the defendants}
credibility”).
Based on the record at present, evidence at trial, as
stated in findings 43 and 44 regarding identity, must be
counterpoised with evidence attached to Petitioner's Rule 40
petition: (1) “the ‘Consultation Record’ from the Department of
Public Safety dated February 11, 2000, states that due to his MS,
[Petitioner] had ‘episodes of weakness in the lower extremities
and diplopia(,]/" (2) Petitioner's “affidavit states that he has
‘permanent damage to the motor movement skills of {his} left leg,
and {his} left leg ig incapacitated as a result of [his] having
(Ms] for many years{,]‘" (3) “the affidavit of (Krau] states that
[Petitioner], when walking, ‘has a distinct gait which cause(s]
him to limp due to weakness in the left side of his body . .
[and w)hen jogging it is almost impossible for him to do so for
any distance[,]” (4) “the affidavit of Ira Chang, M.D., states
that, ‘[e]xamination showed that the left leg exhibited an upper
motor neuron pattern of weakness,’ and that [Petitioner] ‘had a
20
‘09OR PUBLICATION IM WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS+®
tendency to fall to the left on tandem walking and to have
somewhat poor ankle dorsiflexion on heel walking.’”
Hence finding 42 (stating the affidavits do not
establish that Petitioner was unable to run) arguably engages in
a weighing of the evidence, inasmuch as the import of the
affidavits was whether Petitioner could run as the perpetrator
had. The weight to be given the evidence in the affidavits, if
presented at trial, would be one for the jury, and not for a
judge at the HRPP Rule 40 stage. The omission of such evidence
may possibly impair the defense of mistaken identification. see
Hakisaka, 102 Hawai'i at 516, 78 P.3d at 329 (citation omitted).
Likewis
in deciding in finding 43 that the “Jury
could reasonably view" evidence of Petitioner's MS as
“consistent” with the assailant falling and panting loudly
involves a weighing of the evidence and is akin to a review for
substantial evidence, not for the evaluation of whether the
omitted evidence possibly impaired a potentially meritorious
defense.
Also, finding 44, that “the jury could also have
dened” MS Limitations “to be inconsistent” with evidence of
Petitioner's physical activities, again involves a weighing of
evidence in the manner in which the substantial evidence rule
would be applied, rather than whether the failure to adduce such
evidence would have possibly impaired a meritorious defense
28
‘s**F0R PUBLICATION IN WEST'S HAMAI'L REFORTS AND PACIFIC REPORTER®
(here, obviously, the requirement that identification must be
established beyond a reasonable doubt). See id.
Petitioner points out in his opening brief that, in
Aplaca, this court said:
Although we, as an aspellate court, cannot predict the
soapact ive witnesses would hav
Gefendant’s| cresibility, ve fimmly believe thst such
festinony could have had a direct Dearing on the uitinate
putcons of the case. We therefore disagree With the ICA's
Conclusion that the unproferred testimony would not have
East any Light on the sole defense in ehis case, that 3,
the lack of criminal intent. The materials and affidavits
ara punitestly adverse to the ToArs finding.
74 Haw. at 73, 837 P.2d at 1308 (emphases added). Tt would
appear that evidence regarding restrictions on Petitioner's
ability to run, as attached to his HRPP Rule 40 petition, “could
have had a direct bearing on the ultimate outcome of the case,”
Ada, because it bore on whether Petitioner could run in the same
nanner as the perpetrator had and, thus, on whether Respondent
had proven beyond a reasonable doubt the identity of the
perpetrator.
xr.
Respondent's response in its answering brief was to
cite the “obvious tactical basis” exception to the impairment
rule:
soecitic acto Leaed to be error but uh
‘had_on obvious tactical basis for benefitting the
sefendant's case will not be sublect to further scrutiny,
benefitting the defendant's case and it tented ip the
sithdrsws! or supstanrial
Reritorious defense, ‘chen it will be evaluated as
29
‘**+f0R PUBLICATION IN WEST’ S HAMAI'T REFORTS AND PACIFIC REPORTERS #
information that an ordinary competent criminal attorney
should have had.
State v, De Guair, 108 Hawai'i 179, 187, 118 2.34 662, 670 (2005)
(sone emphases in original and emphasis added) (internal
quotation marks, brackets, ellipses, and citation omitted). In
this regard the ICA noted that “(t]he (court) denied
(Petitioner's) claims against . . . Sexeno, stating{,]” as noted
before, that “there may have been very good reasons why certain
matters were not brought before the jury, particularly with
regard to the underlying disease which [Petitioner] was claiming
had a significant effect on his ability to move.” S00 at 7.
Respondent argues that because the perpetrator wore a ski mask
and there were discrepancies among the witnesses as to the
description of the perpetrator, as Petitioner points out, a
seemingly obvious tactical basis would be to “argue ‘reasonable
doubt’ regarding Respondent’ s case.
xrr.
First, as to Petitioner's own request to testify
(findings 47-51), the ICA observed that the court sai
(Oln the Tachibana colloquy . . . it’s quite clear
there was an adequate colloquy.
50 Af. : « (Petitioner) wanted to indicate to the
(clout. : it’was Bis decision and not his attorney's
EME he santed to testify, he certainly could have
indicated ss =
800 at 7 (emphasis added). Relatedly, in Jones v. state, 79
Hawai'i 330, 331, 902 P.2d 965, 966 (1995), the defendant argued
fon appeal from the circuit court’s denial of his HREP Rule 40
30
FOR PUBLICATION IM WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTERSY#
petition that “the circuit court erred in concluding that his
trial counsel had provided effective assistance of counsel with
respect to [the defendant's] failure to testify in his own
defense.” At the HREP Rule 40 hearing, the defendant “testified
that his trial attorney had not told him that the decision to
testify was his decision to make or that he could change his mind
‘about testifying even after signing the written waiver.” Id. at
333, 902 P.2d at 968.
on the other hand, the defendant’s trial attorney
“testified that he did not recall ever discussing (the
defendant’ s] decision not to testify after the written waiver had
been signed, but was sure that he had stressed to (the defendant]
that the decision whether not to testify was his decision to
make.” Id, After conducting the hearing, the circuit court
found that “the [d]efendant was properly advised of his right to
t
tify and of his subsequent waiver, and that he knew of that
right and knowingly and intelligently waive(d) that right.” Id.
at 333-34, 902 P.2d at 969-69,
The Jones court recognized that under Tachibana, “‘in
order to protect the right to testify under the Hawai"
Constitution, trial courts must advise criminal defendants of
their right to testify and must obtain an on-the-record waiver of
that right in every case in which the defendant does not
a1
FOR PUBLICATION IH MEST’ S HAKAI'T REPORTS AND PACIFIC REPORTER:
testify.” Id. at 333, 902 P.2d at 968 (quoting Tachibana, 79
Hawai'i at 236, 900 P.2d at 1303 (footnotes onitted)).
But the Jones court concluded, “based on [its] review
of the record, [and) particularly the testimony presented by (the
defendant's} trial counsel, . . . that the circuit court's
findings that (the defendant] was properly advised of his right
to testify and that he knowingly and intelligently waived that
right were not clearly erroneous.” Id. at 334, 902 P.2d at 969.
Accordingly, this court held that “to the extent that (the
defendant's HRPP Rule 40] petition was b
don an alleged
violation of his right to testify, . . . the circuit court did
not err in denying the petition.” Id, Thus, on similar fact:
Petitioner cannot claim ineffective assistance of counsel as to
his not testifying at trial.
xur.
As to evidence other than Petitioner’s own testimony,
Respondent argued, as indicated supra, that there were “obvious
tactical bas[e]s” for not producing such evidence. Respondent
contended that the omitted evidence (1) would have “strengthened
and/or corroborated the. [Respondent's] case” because of evidence
that the assailant fell, rolled into a sitting position, and
apparenty exhibited “loud panting and heavy breathing,” and
(2) would have “contradict{ed] . . . evidence of {Petitioner's}
physical activities.”
32
POR PUBLICATION IM WEST’ HAKAI'T REPORTS AND PACIFIC REPORTERS ®
However, it is questionable that there was an “obvious
tactical basis” for suppressing countervailing evidence as
presented in the Consultation report, Dr. Chang’s affidavit, and
Krau's affidavit, age supra, which would contradict or mitigate
the effect of Respondent’s evidence. Such evidence, at the
least, presented a colorable claim of ineffective assistance of
counsel. Hutch v, State, 107 Hawai'i 411, 414, 114 P.34 917, 920
‘Eing should be held on a Rule 40
(2005) (noting that “a ni
petition for post-conviction relief where the petition states a
colorable claim(,]” and that “{t]o establish a colorable claim,
the allegations of the petition must show that if taken as true
the facts alleged would change the verdict” (quoting Dan vs
State, 76 Hawai'l 423, 427, 879 P.2d 528, 532 (1994) (quoting
State v. Allen, 7 Haw. App. 89, 92-93, 744 P.2d 789, 792-93
(1987))) (emphasis omitted) .
Apparently the jury was not informed of the fact that
Petitioner had MS and that there was evidence contradicting
whether Petitioner could run the distance involved or in the
manner described while being chased. Rather than
“strengthen[ing] or corroborat {ing]” Respondent’s case, such
evidence could cast doubt on its identity evidence. As to
“contradicting” evidence of Petitioner's physical activities,
such information would seemingly qualify such activities. Thus,
according to Petitioner, the ICA gravely erred because in this
33
+¥+¥OR PUBLICATION IN WEST'S HAWAL'T REPORTS AND PACIFIC REPORTER!
context “trial counsel’s failure to present evidence that would
have further excluded [Petitioner] as the perpetrator (i.e.
evidence that would have shown that he could not have run as the
perpetrator did . . . ) would have at least possibly affected the
jury's verdict” and “did in fact result in the ‘possible
impairment, rather than a probable impairment, of a potentially
meritorious defens
+" (Quoting Wakisaka, 102 Hawai'i at $14, 78
P.3d at 327.) (Citation omitted.)
xIv.
A.
As stated previously, HRPP Rule 40(a) (1) entitles
Petitioners to relief from judgment if there is “any ground which
is a basis for collateral attack on the judgment.” HRPP Rule
40(c) (1) requires petitioners to set forth in their petitions
all the grounds for relief which are available to the
Petitioner and of which the petitioner has or by the
Sxercise of reasonable diligence should have knowledge and
Shall set forth in summary fora the facts supporting each of
the grounds thus specified. [t hall also state the relief
requested.
HRP Rule 40(f) dictates that “[i]f a petition alleges facts that
Af proven would entitle the petitioner to relief, the court shall
grant a hearing. . .
As an exception to this general rule, HRPP Rule 40(f)
further provides that “the court may deny a(n evidentiary]
hearing if the petitioner’s claim is patently frivolous... .”
34
{s#4fOR PUDLICATION IN WEST!S HAWAI'T REPORTS AND PACIFIC REPORTER®
(Emphasis added.) despite its statement regarding “get [ting] to
2 point . . . of a colorable claim,” the court did not find or
conclude that Petitioner’s claim was “patently frivolous.”
Rather, it entered numerous findings concerning the evidence at
trial and concluded that that trial counsel’s “decision not to
call (Krau] or produce other evidence in a defense case-in-chief
does not constitute ineffective assistance of counsel and does
not support relief pursuant to Rule 40{.)”
‘Thus, the court apparently found that Petitioner's Rule
40 petition raised at least a colorable claim of ineffective
assistance of counsel inasmuch as (1) it did not rule that the
petition was “patently frivolous” and (2) it resolved the merits
of the arguments raised in the petition. Furthermore, we note
that on their faces, the affidavits present a colorable claim of
ineffective assistance of counsel because if the facts therein
were taken as true, they could change the verdict. See Barnett
waState, 91 Hawai'l 20, 26, 979 P.24 1046, 1052 (1991) (noting
that a petition raises a colorable claim if the allegations
therein, “if taken as true(,]” “would change the verdict”
(citation omitted)). Specifically, Petitioner could have been
able to establish that he could not run in the same manner as the
Perpetrator, coupled with the inability of Respondent's witnesses
to unequivocally identify Petitioner as the perpetrator.
35
‘**47OR PUBLICATION IM WEST’ HAKAI'T REPORTS AND PACIFIC REPORTE
If a Rule 40 petition raises a colorable claim of
ineffective assistance of counsel, the court must hold an
evidentiary hearing. HRPP Rule 40(f) ("If a petition alleges
facts, that if proven would entitle the petitioner to relief, the
court shall grant a hearing which may extend only to the issues
raised in the petition or answer.") Accordingly, a full and fair
evidentiary hearing is required on Petitioner’s clains. Hutch,
107 Hawai'i at 414, 114 P.3d at 920 (holding that “a hearing on a
Rule 40 petition is required whenever the allegations in a
petition, if taken as true, (1) would change the verdict rendered
oF (2) would establish the illegality of custody following a
Judgment{]" (citing HREP Rules 40(a) and (€); Turner, 93 Hawai'i
at 310, 1 P.3d at 780))7 gee also HRPP Rule 40(f) (“The
Petitioner shall have a full and fair evidentiary hearing on the
petition, The court shall receive all evidence that is relevant
and necessary to determine the petition... ."). The
evidentiary hearing should also include an opportunity for Sereno
to explain his trial strategy. See id. (“here the petition
alleges ineffective assistance of counsel as a ground upon which
the requested relief should be granted, the petitioner shall
serve written notice of the hearing upon the counsel whose
assistance is alleged to have been ineffective and said counsel
shall have an opportunity to be heard.”); see also State
36
seFoR PUBLICATION IN WEST
HAAI'T REPORTS AND PACIFIC REPORTER
Moses, 107 Hawai'i 282, 293, 112 P.3d 768, 779 (App. 2005)
(noting that “counsel should [be] given every opportunity to
explain the reasons for” the challenged conduct (citing Matsuo v.
State, 70 Haw. 573, $78, 778 P.2d 332, 335 (1989); State v.
Smith, 106 Hawai'i 365, 378, 105 P.3d 242, 255 (App. 2004)
(stating that the decision not to call witnesses is “normally a
matter within the judgment of counsel and will rarely be
second-guessed” by the courts (citing State v. Richie, 88 Hawai'i
19, 39, 40, 960 P.24 1227, 1248 (1998))).
‘The court acted conscientiously in the disposition of
Petitioner’s Rule 40 petition. However, in light of the issues
raised on certiorari, a full and fair evidentiary hearing on
Petitioner’s claims related to his MS evidence, other than
Petitioner’s own trial testimony, must be held. Therefore, the
ICA's April 12, 2007 judgment and the court’s December 1, 2004
Findings of Fact, Conclusions of Law, and Order Denying Petition
to Vacate, Set Aside, or Correct Judgment or to Release
Petitioner From Custody are vacated, and Petitioner's HRPP Rule
40 petition is remanded for such a hearing.
Jon N. Ikenaga, Deputy
Public Defender, for
Petitioner/Defendant~ Qc Aplane—
Appellant.
Peter A. Hanano, Deputy Peete Cae arer
Prosecuting Attorney,
County of Haul, for OO
Respondent /Plaintiff-
Appellee. oor 6 att Oe
2
|
ef9f2400-027e-4086-8570-4bcf81c9920e | Jou v. National Interstate Insurance Company of Hawaii | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26204
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
EMERSON M.F. JOU, M.D., And As To Some Claims,
on Behalf Of The Class of Others Similarly Situated,
Petitioner/Plaintiff-Appellant
vs.
NATIONAL INTERSTATE INSURANCE COMPANY OF HANAII,
A Corporation; ADP INTEGRATED MEDICAL SOLUTIONS,
An Entity, Form Unknown; and DARWIN CHING,* Interim
Director, Department of Labor, State of Hawai'i, ~
Respondents Defendant s-Appellees =
ove
and
JOHN DOE 1-10; DOE CORPORATION 1-10;
DOE PARTNERSHIP 1-10; and DOE GOVERNMENTAL.
ENTITY 1-10, Defendants.
92 Nd Oz dasimy
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO, 03-1-0233)
‘Rcoba, J., for the court")
The Application for Writ of Certiorari filed on
August 14, 2007 by Petitioner/Plaintiff-Appellant Emerson M.F.
is hereby rejected.
Honolulu, Hawai'i, September 20, 2007.
pare:
FoR THE COURT
Te an
Alcon &. xc08n, 38
Associate Justice
Jou, M.D.,
Pursuant to Hanai't Rules of Appellate Procedure Rule 43{c) (1),
Darwin ching, the current interim Director of the Deparenent of Labor, ‘state
of Hauai'l, has been substituted for Nelson Befivel, the Director at the time
this case was decided by the first cireuit court.
Considered by Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 7.
Stephen M. Shaw for
Petitioner/Plaintiff-
Appellant, on the
application.
Randall ¥.S. Chung and
James H. Monma (Matsui
Chung) for National
Interstate Insurance
Company and Respondent/
Defendant Appellee National
Interstate Insurance
Company of Hawaii,
on the response.
George W. Playdon, Jr. and
Kelvin H Kaneshiro (Reinwald,
O'Connor & Playdon LLP) for
Respondent /Defendant~
Appellee ADP Integrated
Medical Solutions, on the
opposition.
No. 26204 ~ Jou v, National Interstate Ins, Co.
Order Rejecting Application for Writ of Certiorari
|
73efc2ed-188c-428f-9008-eaad7bb64c8b | Muasau v. State | hawaii | Hawaii Supreme Court | Law LiegaRy
#04 Not FOR PUBLICATION I WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ###
No. 27413
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
LIVINGSTON G. MUASAU, Petitioner-Appelient, =|
STATE OF HAWAI'I, Respondent Appellee. = =F
aS
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRQUIT
(8.P-P. No. 5-1-0008) =
Moon, C.J., Levinson, Nakayama, Duffy, JJ.,
and Acoba, J., concurring)
‘The petitioner-appellant Livingston G. Muasau appeals
from the June 21, 2005 order of the circuit court of the first
circuit, the Honorable Steven S. Alm presiding, denying his
Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition.
on appeal, Muasau contends that the circuit court erred
in denying his petition inasmuch as: (1) Apprendi v. New Jersey,
530 U.S. 466 (2000), and its progeny require that the facts upon
which his extended-term sentence is. based be included in the
indictment and proven to the trier of fact beyond a reasonable
doubt; and (2) the circuit court, in 1984, failed to enter into
the record findings of fact (FOFs) (a) that he was a multiple
offender or (b) that an extended-teim sentence was necessary for
the protection of the public (hereinafter, “the necessity
finding], as required by HRS § 706-662 (Supp. 1961).!
RS $ 706-662 (Supp. 1981) required that “(tIhe finding of the
court shall be incorporated in the record.”
MOT FOR PUBLICATION IN WEST'S HANAI'T REFORES AND PACIFYC REPORTER #+*
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 affirm the order
of the circuit court for the following reasons:
In State v. Gomes, 107 Hawai'i 308, 113 P.3d 184
(2005), this court held “that Apprendi does not apply
retroactively in this jurisdiction to cases on collateral
attack.” Id. at 314, 113 P.3d at 190, Muasau fails to advance
any arguments as to why this court should reconsider its holding.
Therefore, insofar as his extended-term sentence was imposed in
1984 and Apprendi was issued in 2000, his contentions that
Apprendi and its progeny rendered his extended-term sentences
illegal and required the circuit court to grant his HREP Rule 40
petition are without merit, and the circuit court correctly
denied his petition on that basis.
Muasau alleges that the circuit court in 1984 failed
“to follow procedure” by failing to enter FOFs into the record
that he was a multiple offender for whom an extended-term
sentence was necessary for the protection of the public. Absent
application of the Apprendi rule, however, which Gomes instructs
does not apply to his case, Muasau fails to allege how the
circuit court’s omission was to his “substantial detriment,”
State v, Rivera, 106 Hawai'i 146, 154-85, 102 P.3d 1064, 1052-53
(2004).
Nuasau does not contest the fact that, in 1984, he was
sentenced concurrently for multiple felonies, rendering him
Subject to HRS § 706-662(4), and does not contest on appeal the
‘164/sop FOR FUBLICATION IN WEST’ S HAMAI'T REFORTS AND PACIFIC REPORTER *
circuit court's June 21, 2008 FOF to that effect. Moreover,
insofar as the prosecution’s motion for the extended-tera
sentence was based on the assertion that the sentence was
necessary for the protection of the public, the sentencing court
made the necessity finding, at least implicitly, when, at the
close of the January 5, 1984 hearing, it granted the motion.
Indeed, in issuing its written order, which followed the earlier,
oral granting of the motion, the circuit court referenced both
the motion and the contents of the hearing.
Muasau, in raising the sentencing court’s failure to
enter the relevant FOFs in its written order, essentially alleges
a violation of his rights to procedural due process. However,
“the appellate courts of this jurisdiction have, in other
settings, applied procedural due process protection only where an
individual's rights are substantially affected.” In re doe, 98
Hawai'i 522, $34 n.18, $7 B.34 447, 459 n.18 (2002) (citing Ince
Doe, 91 Hawai'i 147, 150, 981 F.2d 704, 707 (App. 1998), rev'd on
other arounds, 90 Hawai'i 246, 978 P.2d 684 (1999); In xe Doe, 62
Haw. 70, 74, 610 P.2d 509, 512 (1980); Stafford v. Dickison, 46
Haw. 52, 64, 374 P.2d 665, 672 (1962)). Indeed, HRPP Rule 52
provides that “lalny error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded.”
Muasau fails to articulate how the omiesion of the
express multiple felony or necessity findings in the 1984
sentencing court’s written order affected his substantial rights.
The record reflects that, on January $, 1984, the sentencing
court (1) provided both parties a full hearing on the motion for
‘#* NOT FOR PUBLICATION IN WEST'S HAMAT'T REFORTS AND PACIFIC REPORTER +++
extended-term sentencing, (2) provided Muasau the opportunity to
Present witnesses and to testify himself, and (3) orally granted
the motion at the conclusion of the hearing based upon the
evidence and testimony elicited. The record further reflects
that Muasau’s attorney at the time approved the written order as
to form, raising no objections to the lack of express FOFs in the
order. Muasau does not allege, and offers no evidence, that the
circuit court’s failure to include the express FOFs in its
written order denied him notice of the basis of his sentence, nor
does he allege that the sentence imposed would have been
different but for the omission, and he fails to articulate any
justification for waiting more than twenty years to bring the
omission to the attention of the court, absent its utility as a
bootstrap to secure application of the Apprendi rule to his
sentencing.
In light of the foregoing, Muasau fails to meet his
burden of establishing abuse of discretion by the sentencing
court that was to his “substantial detriment,” Rivera, 106
Hawai" at 184-55, 102 P.3d at 1052-53, State v, Okumura, 78
Hawai'i 383, 399, 894 P.2d 80, 96 (1995) (quoting State ve
Faulkner, 1 Haw. App. 651, 654, 624 P.2d 940, 943 (1981)) ("*The
burden of establishing abuse of discretion is on appellant and a
quoted in State
MaCordeiro, 99 Hawai'i 390, 420, 56 P.3d 692, 722 (2002).
Accordingly, the circuit court did not err in denying Mu
petition without a hearing. Hutch v, State, 107 Hawai'i 411,
414, 114 P.3d 917, 920 (2005); BRPP Rule 40(£) (providing that
strong showing is required to establish it./”
OT FOR FUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *
“{tlhe court may . . . deny a hearing on a specific question of
fact when a full and fair evidentiary hearing upon that question
was held during the course of the proceedings which led to the
judgment or custody which is the subject of the
petition...
‘Therefore,
IT IS HEREBY ORDERED that the June 21, 2005 order of
the circuit court of the first circuit from which the appeal is
taken is affirmed.
DATED: Honolulu, Hawai'i, September 24, 2007.
lesion
Poe Oey per
Gone Bettys & +
Ae
I concur in the result.
on the briefs:
Livingston G. Muasau, pro se
Lisa M. Itomura and Bryan C. Yee,
Deputy Attorneys General,
for the respondent-appeliee
State of Hawai'i
|
e65f8154-2bd6-4aa6-b43a-087bbc66bd1b | Office of Disciplinary Counsel v. Brown | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27688
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
vs.
CHARLES R. BROWN, Respondent.
(opc 02-165-7363) =
ORDER OF DISBARMENT
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the Disciplinary Board’s Report
and Reconmendation for the Disbarment of Charles R. Brown, the
exhibits thereto, the record, and Respondent Brown's lack of
objection thereto, it appears Respondent Brown committed multiple
violations of Rules 8.1(a) and 8.1(b) of the Havas" Rules of
Professional Conduct by his fall
misleading, and incomplete
answers to question number 10 and question nunber 37 in each of
seven Hawai'i bar examination applications, and by failing to
report to the Board of Examiners of the Hawai'i Supreme Court the
two false social security numbers, two false dates of birth,
arrest and conviction arising from July 1990 incident, and arrest
for criminal trespass arising from the Novenber 4, 1990 incident,
and failing to supplement Respondent Brown's Novenber 1997
application, May 1998 application, Novenber 1998 application,
June 1999 application, Novenber 1999 application, May 2000
application, and November 2000 application.
Tt further appears that Respondent Brown had a
dishonest or selfish motive. Respondent Brown concealed the
information to facilitate his admission to the practice of law.
There were multiple offenses, a pattern of misconduct, and a
refusal by Respondent Brown to acknowledge the wrongful nature of
his conduct.
It finally appears that Respondent Brown has been
suspended from the practice of law since March 28, 2006 and has
not been reinstated. Therefore,
IT IS HEREBY ORDERED that Charles R. Brown is disbarred
from the practice of law in this jurisdiction effective upon
entry of this order.
TT IS FURTHER ORDERED that in addition to any other
requirements for reinstatement imposed by our Rules, Respondent
Brown shall pay any costs of these proceedings as approved upon
timely submission of a bill of costs.
IT IS FINALLY ORDERED that Respondent Brown shall,
within ten (10) days after the date of this order, file with this
court an affidavit in full compliance with RSCH 2.16(4) .
DATED: Honolulu, Hawai'i, October 4, 2007.
f :
Sie ifliowise~
Rusa Co rertoyaner
Boon
Gone Bells
|
05a983af-7c4c-4b65-84ee-390ea38b5758 | Melo v. AIG Hawaii Insurance Company, Inc. | hawaii | Hawaii Supreme Court | LAW UBRAF
No. 26081
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
ROLANDO L. MELO, Special Administrator for the
Estate of Emiliana L. Melo, CORBETT 0. ROY, JR., and
GARLA K. SOUZA-ROY, Plaintiffs-Appellees,
AIG HAWAII INSURANCE COMPANY, INC., Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(Civ. No. 02-1-0676-03)
ORDER
(By: Levinson, J., for the court!)
Upon consideration of the stipulation for dismissal
with prejudice of all claims and parties submitted, which we
consider to be a dismissal of the appeal and that we approve,
IT IS HEREBY ORDERED that this appeal is dismissed.
DATED: Honolulu, Hawaii; September 25, 2007.
FOR THE COURT:
»
Behan aa ®
steven e. Levmngon SEAL
Associate Justi
10:6 WY Sz 438 L002
aad
Considered by: Moon, C.J.) Levinson, Nakayama, Acob
ws,
and Dusty,
|
8f866849-9619-4708-9558-06f6d2400c99 | State v. Espiritu | hawaii | Hawaii Supreme Court | LAW LIBRA.
No. 27354
IN THE SUPREME COURT OF THE STATE OF HAWAI'I 5
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee \2
vs.
CHRISTOPHER K. ESPIRITU, Petitioner/Defendant-Appellant
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CR. NOS. 02-1-0666; 3-1-0635)
RI ING API
By: Aeoba, J., for the court’)
Petitioner /Defendant-Appellant Christopher K.
Espiritu's application for writ of certiorari, filed on
cetober 3, 2007, is accepted and will be scheduled for oral
argument. The parties will be notified by the appellate clerk
regarding scheduling.
DATED: Honolulu, Hawai'i, November 13, 2007.
FOR THE COURT:
FX
a Seren a
owecn a. accen, oe. (VSEAL |)
Aavociate Justice §
oe wi”
cynthia A. Kagiwada
for petitioner/
defendant-appellant,
on the application.
Considered by Moon, C.J., Levinson,
|
1332650f-8d6b-4aad-9258-830f390dc1fe | Ragsdale v. Administrative Director of the Courts | hawaii | Hawaii Supreme Court | LAW LIBRARY
1BUTHE SUPREME COURT OF TE SUATE OP sawn
SS
MICHAEL RAGSDALE, Petitioner Appellant, .
gs
ze
x &£
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF
HAWAII, Respondent -Appellee-
ay
CERTIORARI TO THE INTERMEDIATE CouRT OF appears = &
(JRIDAA-06-0016)
(original Case No. 06-03017)
ENG x OR 1
for the court")
on
(By: Moon, C.J,
Petitioner-appellant Michael Ragsdale’s application for
“BRTIOS
weit of certiorari, filed September 5, 2007, is hereby rejected
DATED: Honolulu, Hawai'i, September 21, 2007.
FOR THE COURT:
Earle A. Partington,
for petitioner-appellant,
on the application
Justice
fama, and Duffy, J3.;
Moon, €.J., Levinson, Maks
considered by:
Acoba, J., Dissenting
|
9be546c8-b384-4584-a978-c5fccdd66533 | State v. Tactay | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘#4 oT FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER *##
No. 27271
‘IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Plaintiff-Appellant,
ROWENA NAZARENO TACTAY, Defendant-Appellee.
ons
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 04-1-1266)
MEMORANDUM OPINION
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.
‘Acoba, J., dissenting separately)
‘The plaintiff-appellant State of Hawai'i (hereinafter,
“the prosecution”] appeals from the April 8, 2005 judgment of
conviction and sentence of the circuit court of the first
the Honorable Michae2 A. Town presiding, convicting the
No. 4-1-1266
circuit,
defendant-appellee Rowena Tactay in Criminal (cr.
of promoting a dangerous drug in the third degree (Count I), in
violation of Hawai'i Revised Statutes (HRS) § 712-1243 (Supp.
2002), unlawful use of drug paraphernalia (Count IZ), in
+ effective July 3, 1996, the legislature amended HRS § 712-1243 by
adding subsection (3), infxa: Sea’ 1996 Haw. Sess, L. Act 308, $8 4 and 7 at
571-72. Eetective July 1; 2002, the legislature further amended HRS
§ 712-1243 by adding the Underscores language, infra?
(2) A person commits the offense of promoting 2 dangerous
rug in the third degree if the person knowingly possesses any
Gangerous drug in any amounts
(2) Fronoting 8 dangerous drug in the third degree is
clase ¢ felony,
(3). Nobiithstanding any law to the contrary, except for
fence; 706-€22.8(, 200 intra
note 2}, if the. coanlasion of the offense of proncting a cangereus
Grug in’ the third degree under this section involved the
possession of distribution of methamphetamine, the person
(continued.
+ NOP FOR PUBLICATION IN WEST'S HAWAI'S REFORTS AND PACIFIC REPORTER ++
violation of HRS § 329-0043.5(a) (1993), and promoting a
detrimental drug in the third degree, in violation of HRS
§ 712-1249 (1993) (Count 111), and sentencing her, inter alia, to
a five-year period of probation, pursuant to HRS § 706-622.5
(supp. 2004) .?
+1. continued)
convicted shall be sentenced to an indeterminate tere of
imprisonment of five years with s mandatory minimum term of
Imprisonnent, the length of which shall be not less than thirty
Gays and not greater than two-and-a-half years, st the discretion
of the sentencing court. The person convicted shall not be
eligible for parcle during the mandstory period of inprisonment.
Sea 2002 Maw. Sess. L. Act 161, $6 8 and 12 at $75. Effective July 1, 2004,
the legislature again anended ARS § 712-1243 by striking subsection (5) in ite
entirery, returning the low to ts 1993 form. See 2004 Hav. Seas. L, Act 4d,
§§ 7 and 33 at 211, 227.
‘Although Act’ 44,
ction 7 anended RS § 712-1243, the anendnent dows
not impact the ultinate disposition of Tactay’s sentencing, regardless of
whether Act 44 applies to her case. If Act 44 does apply, subsection (3)
Eupra would be inspplicable tovher sentencing, returning the penalty for a
Miolation of HRS § 712-1243 to a standard class C felony subject to repeat
Gffender sentencing pursuant to HRS § 706-606.5 (Supp. 1995), age inte
note 3. If Aet 4¢ does not apply to her case, subsection (3) continues to
Govern but only dictates the andscory minsmim for a first-time offender: st
Goes not preclude application of HRS § T06-606.5 to the sentencing of s repeat
offender such a Tactay.
2 Effective duly 1, 2002, the legislature enacted the predecessor
statute to MRS § 706-622.3 (Supp. 2004) in Act 161, § 3, later codified at HRS
§ 706-622-5 (Supp. 2002), which provided in relevant part?
Sentencing for first-tine drug offenders...
(1) Notwienstending any penalty or sentencing provision
under (HRS ch, 712, pt. 1V (concerning offenses related to drugs
and intoxicating compounds) ], 2 person convicted for the first
Eine for any offense under (WRS ch. 712, pe. IV] tnvolving
possession . . .', not including to distribute or manufacture as
Sefined in {HAs'$} 712-1240 [ (Supp. 1997)], of any dangerous drug
= who is non-violent, as determined by’ the court after
Feviewing the:
(a) Criminal history of the defendants
(b) Factual circumstances of the offense for which the
defendant is being sentences; end
(c) Other information deemed relevant by the court
shail be sentenced in accordance with [paragraph] (2) provided
Ghat the person cose not have s conviction for any violent felony
for five years imediately prece|]ding the date of the coamission
of the offense for wnich the defendant 1s being sentences.
(continved. .
Mo? FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER +**
on appeal, the prosecution asserts that the circuit
court illegally sentenced Tactay to probation, inasmuch as, in
Light of an undisputed prior conviction, she was a repeat
offender and, therefore, should have been sentenced pursuant to
HRS § 706-606.5 (Supp. 1999)”
7(., continued)
(2) Berson eligible under (paragraph) (1) shall be
sentenced to probation to underge and conplete a drug treatment
Program.
‘See 2002 Hew. Seas. L. Act 161, $53 and 12 at $72, 575. Effective July 1,
2004, the legislature anended fins § 706-622.5 to read:
Sentencing for first-tine drug offenders...
(1) Notwithstanding [HRS §) 70€-€20(3) {(@isallowing
probation for repeat offenders}), a ei
Eine for any offense under [ARS che 712, pb, TV) involving
Eepincg in tues el Tio-1 240, of sav cancerous dns... is
STigible to be sentenced to probetion uncer {paragraph} (2) if the
Seren meets the following criteria:
(a) The court hae determined that the person is nonviclent aft
Teviewing the person's criminal history, the factual
Eltcunstances of the offense for which the person is being
sneenced, and any other relevant snfornation[.)
(2) A person eligible under (paragraph) (1) may be sentenced
to probation’to underge and complete a sunstance abuse treatment,
program if the court determines that the person can benefit from
EGbetance abuse trestuent and, notwithsta the pers
foule-be subsect to sentencing #5 rebest offender under [HRS
iitest tne subiie.
See 2004 Haw. Sass. L. Act 44, $6 11 and 33 at 214, 227; HRS § 706-€22.5(1)
rnd (2). (Supp. 2004). (Eephases cded.) Section 29 of Act 44, absent from
the Gouified version found at HRS § 706-622.5, reads as follows: “This Act
Goes not affect rights and duties that matured, penalties that were incurred,
Gnd proceedings that were begun, before ite effective date.” Sag 2004 Kaw.
Sess: i. Act 44, § 29 at 227.
> RS § 706-€06.5 provided in relevant pert:
(2) Notwithstanding [HRS §) 706-669 [ (Supp. 1996) (providing
for parole hearing and procedure therefor)] and any cther law to
the Conteary, any person convicted of . «+ (HRS §) 222-2243.
Sno who bee's prior conviction.» . for’. . . any of the cless C
felony offenses enumerated above [including HRS § 708-836,
Helating te unauthorized control of (a) propelled vehicle,
(continued...)
NOT FOR PUBLICATION IN WEST'S IAAI'T REPORTS AND PACIFIC REFORTER +
For the reasons discussed infra in section III, we hold
that the circuit court erred in sentencing Tactay as a first-tine
drug offender rather than a repeat offender. We therefore vacate
the April 8, 2008 sentence and remand for resentencing as a
repeat offender, pursuant to HRS § 706-606.5 (Supp. 1999).
I. BACKGROUND
On June 30, 2004, Tactay was charged by complaint in
Cr. No. 04-1-1266 with, inter alia, promoting a dangerous drug in
the third degree (Count 1), in violation of HRS § 712-1243 (Supp.
2002), unlawful use of drug paraphernalia (Count II), in
violation of HRS § 329-0043.5(a) (1993), and promotion of a
detrimental drug in the third degree, in violation of HRS
§ 712-1249 (1993), in connection with events that occurred on
June 21, 2004. On November 29, 2004, Tactay pled guilty to all
thr!
counts.
3. continued)
shall be sentenced to a mandatory minimum period of inprisonnent
without possibility of parole during such period ag follows:
al One prior feleny conviction:
4s)" Were the instant conviction is for a class ¢
Felony offense enunerated above -~ one year, eight
onthe:
i2) Except as in (paragraph) (3) (concerning special terns
for young sdults)}, a person shail not be sentenced to s mandatory
minimum period of inprisonnent under this section unless the
Instant felony offense was committed » +.
jel | iitnin tive years after a prior felony conviction
where the prior felony conviction was fora class C
Felony offense enumerates above(-]
Effective May 8 and Mey 26, 2006, the legislature amended HRS $ 70€-606.5 in
Eespects annateriel to the present matter. gee 2006 Haw. Seve. L. Act 40,
S51 and Tat 234-37; id. Act 134, §§ 4 and Tat 385-66.
4
0+ Non FOR PUBLICATION I MEST’S HAWAI'T REPORTS AND PACIFIC REPORTER ++
On December 20, 2004, the prosecution filed a motion
requesting the court to impose a term of imprisonment in Count I
based upon Tactay’s status as a repeat offender, pursuant to HRS
§ 706-606.5 (Supp. 1999), see supra note 3. The prosecution's
motion was based on Tactay’s prior conviction on February 28,
2003, in Cr. No. 01-1-1148, of unauthorized control of a
propelled vehicle (UCPV), in violation of HRS § 708-836, and the
fact that, had Tactay been sentenced to the maximum term of
imprisonment for that offense, her term would not yet have
expired at the time of the instant offense.‘
On April 8, 2005, the circuit court conducted a hearing
‘on the motion for repeat offender sentencing. The circuit court
first addressed the question whether the amendments of Act 44,
gee supra notes 1 and 2, applied:
‘The Court: [Defense counsel, w)het do you say.
to [the prosecution]"s excellent argument
(that) penalties .. . are incurred when
you commit the offense, not when they’ re
Imposed at a later cate?
(Oefense): Tsay two things, Judge. The use of the
word “incurred,” as opposed to “imposed,”
wo believe is significant. And T
know the case that [the prosecution] cites
but T would note that that’® & 1902
kod T'.”.”. "honestly [believe] the
Legislative intent is s0 clear, here,
gudge «
The court: Tage
But the language dan't clear.
‘The intent, the spirit is clear, but
they put in language which was
+ ractay stipulated to the fact of the prior UCPV conviction and te
the revocation of probetion inposed for thet conviction which resulted from
her Instant conviction. The prosecution requested that any term of
imprisonment resulting from the violation of Tactay's probation be served
Concurrently with ita requested term of imprisonment for the instant
violations
‘04 NOT FOR FUBLICATION IN MEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER ##¢
Andeed unfortunate. And my obligation
when I became a judge... was not to
inpose my personal sence of morality and
Legality... . it's not about me, it's
about the’ law,
Defense]: But I think the Court can use the
Legislative intent. I'll agree with you
this is pure sausage making. «Bur T
think the Court can, as a principle of
Law, use that legislative intent to
clarify Language that is less than clear.
And we would note that =. . it does use
the word “incurred” rather than “imposed”.
(erosecutionj: While (defense counsel) is correct that the
Qfiginal quotation on that “incurred” versus
ixposed” as from 2 1908 case. - from
1 Uo Vihad cited |. . modern cases as
te are talking across 312
jurtadiceione and, most notably, federat
jurisdictions. Penalties incurred, there
Leno ambiguity. This means at the tine
the act 2 committed and one incurs the
penalty upon thenselves(,] makes them
Subject to the penalty.
‘As the Court has noted, this is
about the rule of Law
The court: Exactly.
[Prosecution]: =~ not the rule of man. Tf there ie no
ambiguity in the term, then we do not look to
Gonmittes reports or anything else unless it's
(going to be claimed that it 1s an absurdity not
fou + + make Act #4 retrospective
I think even in intent and spirit
there was no other reason to put [the
savings clause) language there except to
ake 2 cutoff point. Did the Legislature
Intend -. + prospectively for the courts
fo have discretion? Certainly. However,
ONT would say it would be
Undonetitutional for them to say the Cosrt
San choose to have Act 44 apply in one
person's case and Act 161 apply in other
person's case. It has to be the sane lew
for everyone in the sane
circumstances. = = =
The only other thing t would edd,
Your Honor, ie [the defense] has brought
up lot of Heuse committee intent, that
Sort of thing. =
NOP FOR PUBLICATION IN WEST’ HAMAI'T REPORTS AND PACIFIC REPORTER *##
Nothing in those House hearings says
that there usa an intent for discretion
Tetreactively, that the Line drawn in the
Tanguage wae meant to be other
Goirt: . . . I don't hesitate to follow the law.
But in'this case I want you to make &
Fecord, but I’m going to find it's
Giseretsonary.. .- And what convinces
he is reading the legislative history,
Jooking at State v. Avilial, 63 Haw. 503,
350 P.24 78 (1988)}, the word “incurred”
hat certain legislative seanings but T
Bast don't think that’s what ehey
intended -
And to me this ie clearly 2
proceeding under (Avilla, the intent of
Efpeur.” I don't think [the legislature)
vias) that precise and it’s clear to me
thet the legislative intent was to give
Giseretion, be it “imposed,” "incurred."
Ty think there is not’ clear direction
do ‘Act #4 20. do otherwise.
‘The circuit court then accepted Tactay’s guilty pleas and entered
its judgnent of conviction, sentencing Tactay to five-year terms
of probation for Counts I and II and for the prior uCeV
conviction, based upon its reading of Act 44. The circuit court
ordered the sentences to run concurrently.
on May 3, 2005, the prosecution filed a timely notice
of appeal of the judgment and sentence.*
+ the circuit court sentenced Tactay to 250 days of incarceration on
count 11 with credit for tine sizesdy served.
+ the prosecution's notice of appeal reads in relevant part:
Inlotice is hereby given that the (prosecution) . ... , pursuant
foe. + HRS [6] 641-13(6) (1953... ], and Hawai'd Rules of
dppeliate Procedure, Rule 3, eppeals | .'. from the Judgment,
Giuer of Sentence of Probstion, and Notice of Entry filed ne
fe April 6, 2005. . . + The (prosecution) intends to cont
propricty of the Judgnent, Order of Sentence of Probation, and
Entry, filed on April 8, 2008.
(Some paragraph structure altered.)
+4 Nop FOR PUBLICATION IN MEST’ HAWAI'T REPORTS AND PACIFIC REPORTER #44
1. STANDARDS OF REVIEW
A. Sentencing
“the authority of a trial court to select and
determine the severity of a penalty is normally undisturbed on
review in the absence of an apparent abuse of discretion or
unless applicable statutory or constitutional commands have not
been observed." State v. Aplaca, 96 Hawai'i 17, 22, 25 P.3d
792, 797 (2001) (quoting State v. Jenkins, 93 Hawai'i 87, 100,
997 P.2d 13, 26 (2000).
B. Conclusions Of Law (COLs
“*R COL 4s not binding upon an
eppellate court and ss freciy reviewable
for ite correctness.” AIG Hawait Ing,’
Go, v. Estate of caraang, 74 Haw~ 620,
G26, 851 P28 321, 326 (1993) (quoting
Rafe, Ine! v. Wsikiks Seache
Goa, 7 Haw. 5, 119, 38 P.20 10, 28
{i9h2})." The court ordinarily revie
Cols under the right /wrong standard. Ip
za stage of fiolt, 75 Haw. 226, 232, 657
Pia 1358, 1359 (1993). Thus, °*(a] COL
that is supported by the trial court's
[fingings of fact) and that reflects an
application of the correct rule of law
SER not be overturned." Estate of
Gargang, 74 Haw, at 620-25, 851 Poad at
326 (quoting antec, Inca, 74 Haw. at 119,
839 p.zd at 29). ‘However, a COL that
presents mixed questions of fact and law
Pofeviewed under the clearly erroneous
‘Standard because the court’ s conclusions
fare dependent upon the facts and
circusstances of each ingividusl case.”
dj at 629, 651 p.2d at 326 (quoting
74 haw, 3 115, (839 Pod at
25) (internal quotation marks omitted)
1 76 Hawai'i 172, (280}, 873 P.2d 52, (59)
(isse7-
ee NOP FOR PUBLICATION TS WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER **¥
Allstate Ins. Co. vs Ponce, 105 Hawai'i 445, 453, 99 P.3d 96, 104
(2004). (Some brackets and internal citations omitted.) (Some
bracketed material altered.)
c. i sta
The interpretation of @ statute is a question of law
reviewable de nove. State v, Arceo, 84 Hawai'i 1, 10, 928 P.2d
843, 852 (1996).
Furthermore, our statutory construction is guided by
aetablisned rules:
nen construing @ statute, our forenost
Gbligation is to ascertain and give effect
fo the intention of the legislature, which
SS tebe sotained primarily from the
Jenguage contained in the statute itself.
Kad we must read statutory langusge in the
Context of the entire statute and construe
fe'ln's manner consistent with its
Purpose.
When there ss doubt, doubleness of
Statute, an ambiguity exists.
Th construing an anbiguous statute,
[t]he meaning of the ambiguous words may
be sought by examining the context, with
hich the ambiguocs words, phrases, and
In order to
ings” HRS
Moreover, the courts
Fay resort to extrinsic aids in
Seteraining legislative intent. one
Gvenue is the use of legislative history
‘an interpretive tool,
Gray [y. Adnin, Dir, of the Courtl, 64 Kawai'i (236,
{ae, gsi €.2d [580,] 880 [119971] (footnote omitted) .
State v. Koch, 107 Hawai'i 215, 220, 112 P.3d 69, 74 (2005)
(quoting State v. Kaua, 102 Hawai'i 1, 7-8, 72 P.3d 473, 479-80
(2003)). Nevertheless, absent an absurd or unjust result, see
ev. Hausen, 104 Hawai'i 71, 77, 85 P.34 178, 184 (2004),
this court is bound to give effect to the plain meaning of
NOP FOR PUBLICATION IN MEST’ S HANAT'T REPORTS AND PACIFIC REPORTER *
unambiguous statutory language; we may only resort to the use of
legislative history when interpreting an ambiguous statute.
State v. Valdivia, 95 Hawai'i 465, 472, 24 P.3d 661, 668 (2001).
IIT. DISCUSSION
* - ly means
The prosecution notes that this court, in State v
Walker, 106 Hawai'i 1, 10, 100 P.3d 595, 604 (2004), concluded
that Act 44 does not apply retroactively and argues, therefore,
that “the relevant issue is when the ‘proceedings’ in this case
began.” It maintains that precedent supports the conclusion that
“proceedings” begin with the initiation of the prosecution
through the issuance of a charging instrument. (Citing State v.
Feliciano, 103 Hawai'i 269, 61 P.3d 1164 (2003); State v. Van den
Berg, 101 Hawai'i 187, 65 P.3d 134 (2003); Avillay Holiday vs
United States, 683 A.2d 61 (D.C. 1996).)
2. Tactay ari hi rocedur:
precedential barriers exist to arenting the
prosecution relief.
a. Procedural barriers
Tactay asserts that the prosecution failed to appeal
the circuit court's resentencing of Tactay in Cr. No. 01-1-1148
(the 2003 UCeV conviction) to probation, which “renders that
Judgment final and unappealable which in turn precludes the
relief [the prosecution) seeks in this appeal as to Cir}. Nlo}.
10
NOP FOR PUBLICATION IN MEST’ HAKAI'T REPORTS AND PACIFIC REPORTER
04-1-1266," because HRS § 706-629 (1993)? “prohibit(s] [the]
simultaneous dispositions of probation and imprisonment.”
b.
Act 44's amendments
i. Prospective application
Tactay argues that the language of Act 44, section 29,
see supra note 2, is ambiguous, particularly the phrase
wproceedings that were begun.” She insists that “proceedings”
may refer not only to @ criminal prosecution initiated by a
charging instrument, but also “'to a mere procedural step that is
part of a larger action or special proceeding.'” (Quoting
Black's law Dictionary 629 (Sth ed. 1983).) She asserts thet the
alleged onbiguity of “proceedings” justifies @ review of the
legislative history, which, she contends, reflects an intent to
provide greater discretion to the lower courts in sentencing
decisions. She essentially argues that the circuit court, by
implication, correctly concluded: (1) that “proceedings” was
ambiguous; (2) that interpreting “proceedings” as including
sentencing proceedings conported with the legislature's intent,
reflected in Act 44, to return greater discretion to the
sentencing court; and (3) that her sentencing proceeding was
excluded from Act 44’s savings clause, insofar as it was
HRs § 706-629 provides in relevant part:
(1). then the disposition of a defendant involves more than one
ceine:
ai the court shall net impose a sentence of probetion and
Tentence of inpelsonnent except as authorized by section
Joeveee 2) (a) {concerning inpriscnnent as 2 condition of
probation.)
u
#4 NOT FOR PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REPORTER *¥¢
conducted on April 8, 2005, more than nine months after Act 44’s
effective date, thereby allowing the court to sentence her to
probation.
Tactay also asserts that the phrase “penalties that
were incurred” unambiguously refers to a sentence imposed upon
judgment and that, because her sentence was imposed after July 1,
2004, the circuit court therefore properly applied Act 44's
amendments in sentencing her to probation.
ii. Retroactive application
Tactay urges, in the alternative, that even if her
sentencing hearing were part of a unitary criminal prosecution
initiated prior to July 1, 2004
retroactive application of Act 44 for her to benefit from its
which would require
amendments -- she challenges this court’s conclusion in Walker,
106 Hawai'i at 10, 100 P.3d at 604, that Act 44 does not apply
retroactively, asserting that precedent requires this court to
apply aneliorative amendments retroactively regardless of the
presence or absence of a savings clause. (Citing Koch
Feliciano; Yan den Berg: Avilla; State v, Von Gelder, 64 Haw.
210, 638 P.2d 319 (1981).)
5B hat.
= Su 7s Cas
In State v. Smith, 103 Hawas's 226, €1 P.3d 408 (2003),
this court analyzed the plain language of HRS § 706-606.5 (Supp.
1999), regarding sentencing for repeat offenders, and HRS
§ 706-622.5 (Supp. 2002), allowing probation for first-time drug
offenders, and held that “in all cases in which HRS § 706-606.5
12
1+ oF FOR PUBLICATION JN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER *#*
is applicable, including those in which a defendant would
otherwise be eligible for probation under HRS § 706-622.5, the
circuit courts must sentence defendants pursuant to the
provisions of HRS § 706-606.5." 103 Hawai'i at 234, 81 P.3d at
414.
The legislature then enacted Act 44 in response to
smith, amending HRS § 706-622.5 to include language expressly
allowing for probation for first-time drug offenders, even those
found by the court to be repeat offenders. See HRS § 706-622.5
(supp. 2004), supra note 2.
In Walker, we reiterated the holding of Smith and
concluded that, “consistent with Act 44, . . . §§ 29 and 33, HRS
§ 706-606.5 trumps HRS § 706-622.5 with respect to all cases
involving ‘rights and duties that matured, penalties that were
incurred, and proceedings that were begun, before [the] effective
date of [Act 44], i.e., July 1, 2004." 106 Hawai'i at 10, 100
P.3d at 604 (brackets in original).
In State v, Beis, No. 27171 (Haw. Aug. 21, 2007), we
held “that the term ‘proceedings,’ as employed in Act 44,
section 23, unambiguously means the initiation of a criminal
prosecution against a defendant through a charging instrument and
subsumes within its scope hearings and other procedural events
that arise as a direct result of the initial charging instrument”
land (2) “that a defendant incurs, at the moment he or she conmits
the offense, Liability for the criminal penalty in effect at the
time of the commission of the offense,” and concluded that the
inclusion of the specific savings clause in Act 44, section 29
3
NOT FOR PUBLICATION IN MEST’S HAWAT'I REFORTS AND PACIFIC REPORTER +##
evinced legislative intent that the Act’s provisions apply only
prospectively. eis, slip op. at 28, 34, 41 (emphasis omitted).
Therefore, we reiterate cur conclusion that the
provisions of Act 44, in their entirety, do not apply to any
defendant who committed the charged offense and whose prosecution
was conmenced prior to July 1, 2004, regardless of the date of
the defendant's subsequent conviction or sentence. See Halter,
106 Hawai'i at 9, 100 P.3d at 603; Reis, slip op. at 29, 34, 41.
Accordingly, as required by Walker and Reig, insofar os
the prosecution against Tactay began on June 30, 2004, with the
filing of the complaint, the circuit court was obligated by the
language of Act 44, section 28 to exclude Act 44s anendnents
from its consideration and, instead, to apply the 2002 version of
HRS § 706-622.5 to her case. It therefore erred in sentencing
her according to the 2004 version of HRS § 706-622.5 enacted by
Act 44. Aplaca, 96 Hawai" at 22, 25 P.3d at 797.
Moreover, in line with Smith, 103 Hawai‘ at 234, 62
P.3d at 414, and Walker, 106 Hawai'i at 10, 100 P.3d at 604, and
insofar as Tactay conceded her status as a repeat offender under
HRS § 706-606.5 (Supp. 1999) by conceding the existence of an
applicable prior conviction of unauthorized control of a
propelled vehicle, the circuit court could not sentence her to
probation pursuant to HRS § 706-622.5 (Supp. 2002), the first-
time drug offender statute in effect at the time of the
commission of her offenses. Rather, the circuit court was
4
+ NOP FOR PUBLICATION 18 WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER **#
required by Smith to apply HRS § 706-606.5 (Supp. 1999) to
sentence her to a mandatory minimum sentence of one year and
eight months.
c. The Prosecution’s Alleced Failure To Appeal The
Ser Tn Cr, NO, 011-1148 Do Bar Remand
Resentencing.
upon remand, the circuit court, in applying HRS
§ 706-606.5 (Supp. 1999) in Cr. No. 04-1-1266, will be obligated
to sentence Tactay to an indeterminate five-year term of
imprisonment with a mandatory minimum of twenty months, see supra
note 3. Although the prosecution's notice of appeal, see suora
note 6, refers to the whole judgnent, which includes all three
sentences for probation running cencurrentiy, the prosecution
nevertheless concedes “it did not appeal the sentence of
probation ordered in Cr. No, 1-1-1148," and, in its opening
brief’s statement of the points of error on appeal, it only
challenges the sentence of probation for Count I. Insofar es the
only count for which the circuit court arguably had no discretion
under HRS § 706-606.5 to impose probation rather than
imprisonment was Count I, this procedural posture by the
prosecution on appeal is not surprising.
Tactay argues, essentially, that @ defendant in her
procedural position -- under three concurrent sentences of
probation, with one sentence overturned on appeal and requiring a
term of imprisonment -- has somehow obtained a “get-out-of-jail-
free” card and has become immune from imprisonment. We need not
address the absurdity of the logical outcone of such an argument,
however, because HRS § 706-629 does not prevent, on remand, the
as
[NOT FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER +++
imposition of the mandatory minimum term ae required by HRS
§ 706-606.5 (Supp. 1999). The probation imposed for Tactay’s
violation of probation in Cr. No. 01-1-1148, as well as for
Count II, are still subject to correction as illegal sentences by
motion of the prosecution, pursuant to Hawai'i Rules of Penal
Procedure Rule 35(a) ("the court may correct an illegal sentence
at any time... ."). Upon such a motion, the circuit court has
broad discretion to ensure that the imposition of a term of
imprisonment in Cr. No, 04-1-1266, sentencing for Count 12, and
any punishment resulting from the revocation of Tactay’s
probation in Cr. No, 0l-1-1148 all comport with the requirenents
of HRS § 706-629.
IV. CONCLUSION
In light of the foregoing, we vacate the April 8, 2005
sentence of the circuit court and remand for resentencing, with
HRS § 106-606.5 (Supp. 1999) being applied to Count 1.
DATED: Honolulu, Hawai'i, September 24, 2007.
on the briefs:
Daniel H. shinizu,
Deputy Fresecucing Attorney,
for the plaintiff-appellone
State of Howalt .
Phyllis J. Hironaka, Beet mneo
Deputy Public Defender,
for the defendant-apreilee Pus ON ae are
Rowena Nazarene Tactey
Came Duty bo
16
|
67592372-e38c-4ce5-990d-a08c374fc6bc | State v. Mariano | hawaii | Hawaii Supreme Court | No. 27303
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAI'I, Petitioner-Appellee,
vs.
BERNARDINO MARIANO, Respondent -Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR. NO, 03-1-2633)
NG APPLICA’
(By: Nakayama, J., for the court’)
Petitioner-Appellee’s application for writ of
certiorari filed on September 24, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, October 29, 2007.
FOR THE COUR!
Peter C1. rae Oe~
Aasociate Justice
Janes M. Anderson,
Deputy Prosecuting Attorney,
for petitioner-appellee
on the application
considered by: Moon, C.J., Levinson, Nakayama, Accb:
and Duffy, 99.
190 L00e
IS: Hd 62
qa
|
5998ee25-50ad-4d55-8804-9fca9cd63a69 | Fong v. Oh. ICA mem.op., filed 10/27/2006 [pdf], 112 Haw. 372. S.Ct. Order Accepting Application for Writ of Certiorari, filed 03/21/2007 [pdf]. S.Ct. Order of Correction, filed 12/19/2007 [pdf]. S.Ct. Order | hawaii | Hawaii Supreme Court | LAW UBRAAY
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000.
CONNIE Y. FONG,
Respondent /Plaintif£/Counterclaim Defendant-Appellee
ve. 8
SEMIN OH and MYUNG HUI OH, 28 2 x
petiticners/Defendants/counterciainants/ ade
Crose-Claisante-Appellants eS F
Bros 6
and ae
CELIA OLAES BATLE, Defendant /Cro:
4
é
x
and
CLIFF ENTERPRISES, INC.; DAVID JON TAMURA? ANNE JU TAMURA; RENATO
VITO BATLE; MICHAEL TAMURA; and DOES 1-100, Defendants
and
SEMIN OH and MYUNG HUT OH,
Petitioners/Third-Party Plaintiffs-Appellants
KEITH M. KIUCHI,
Respondent /Third-Party Defendant-Appellee
No. 27635
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. No, 02-31-2007)
NOVEMBER 30, 2007
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
OPINION OF THE COURT BY DUFFY, J.
Petitioners Semin Oh and Myung Hui 0h seek review of
the Intermediate Court of Appeals’ (ICA) November 16, 2006
judgment affirming the November 2, 2005 judgment of the circuit
court of the first circuit.! We accepted the Ohs’ application
for @ writ of certiorari and oral argument was held on August 15,
2007.
‘The Ohs assert that the ICA gravely erred in vacating
in part and affirming in part the circuit court's judgment in
favor of Respondent/Plaintiff/Counterclaim Defendant-Appellee
Connie Fong and Respondent/Third-Party Defendant-Appellee Keith
Kiuchi. With respect to Fong, the Ohs assert that the ICA
jistakenly held that the anti-fraud provisions of Hawai" Revised
Statutes (HRS) chapter 485, known as the Uniform Securities Act,
do not apply to transactions in which “a party sels all, a
opposed to only a portion, of the stock of a corporation.” with
respect to Kiuchi, the Ohs assert that the ICA was mistaken in
its ruling that an escrow agent's duty of disclosure is limited
to agreenents or instructions imposing such a duty, and that
there was no evidence of any such agreement or instructions in
this case. Because we do not believe the ICA‘s conclusion with
le Gary W.B. Chang, presided over this matter.
FOR PUBLICATION IN WEST'S HAWAF'T REPORTS AND PACIFIC REPORTER ***
respect to Kiuchi was in error, we focus on the Ohs’ HRS § 485-25
Based on the following, we vacate the ICA’s judgment in
part and remand to the circuit court on the Ohs’ counterclaim
with respect to HRS § 485-25, and affirm the judgement of the ICA
in all other respects.
‘BACKGROUND
Although the initial transactions and lawsuits involved
six parties,’ the present appeal concerns four individuals: Mr.
and Mrs. Oh, Fong, and Kiuchi.
A. » Factual Backaround
1. Ownership and Operation of Cliff Enterpri
1 Ine.
Cliff Enterprises, Inc. (CEI) was incorporated on May
15, 2000 by Clifton Yamamoto, at Fong’s direction.? Yamamoto
subsequently transferred ali of the shares of stock of CEI to
Michael Tamura, who paid part of the purchase price with a
promissory note in favor of Fong. Ownership subsequently passed
to Batle in October 2000. Pursuant to an agreement between
+ these other parties include: Celia Betle, who filed for benkruptey
land against whom all claims vere as Michael Temura? Ann Tamura
(Wtichsel’s # and Davie Tamer
+ CEI obtained ite lesse and initial assets from another corporation
that opersted # store at the sane location. Feng had Losned £400,000 to the
owner of this prior store, and has had a financial stake in the
Involved since 1989." These details, not relevant to this sppesl,
Subsequent financial arrangements concerning CEI.
3
** FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
Tamura, Fong, and Batle, a promissory note designating Fong as
the payee of a sum of $280,000 in monthly payments of $8,000 vas
signed in October 2000 by CEI (Batle signing as President),
Batle, Ann Tamura, and David Tamura. The note was secured by
mortgages on two condominiums owned by Ann and David Tamura, a
well as a mortgage on Batle’s house.
Under Batle’s ounership and operation, she sold
cigarettes to retail customers at discount prices, allegedly
because she was not paying the requisite Hawai'i excise tax of
five cents for each cigarette sold required by HRS § 245-3.”
Batle testified that she purchased cigarettes from the mainland
via a wholesale company she owned, and would resell them at the
store. This “gray market or illegal sales practice continued
until December 2000, after which she did not make further
2 HRS § 245-3 provides that every wholesaler or dealer of cigarettes
“shail pay for the privilege of conducting business... [an excise tax
equal £65.00 cents for each cigarette sold. « efter June 30, 1996." Prior
te dune 2000, cigarette bexes contained no indicia of whether of not the tex
had been paid; this schene sllowed sone merchants like Satle to “purcha
Cigarettes at wholesale prices . . . not pay the excise tox, and fell the
Cigarettes to shop owners and bor cuners at discount prices." In June 2000,
the legislature anended the law to require that all packs of cigarettes sold
In the state have affixed stamp showing that the excise tax had been paid,
and making it a erine to sell 2 package of cigarettes without stamps.” 2000
How. Sess. L, Act 245, § 1 st €16-19 (approved on June 19, 2000). The law
took effect on April i, 2003, HRS § 248-87 ("Beginning April 1, 2001. - =
"}, shortly before the date of Betle’s arrest.
‘
FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER **%
purchases from her mainland company but continued to sell the
renaining inventory.‘
Batle was arrested on April 3, 2001 for selling
cigarettes without the required stamps. Ten months later, on
vanuary 31, 2002, she was formally charged with selling
cigarettes without stamps, with one count against her
individually and one count against her as corporate
representative of CEI. Batle reached a plea agreenent with the
state, in which she would plead no contest, agree to a five year
+ Batle’s deposition contains the following testisony confirming this:
0. You would purchase the cigarettes from the Mainland through
your wholesele business called Discount Cigarettes, and you
Mould then sell those cigarettes at retell tnrough’ the D.C.
Lees store at 152 North Pauahi street) is that correct?
a. T'stopped’-* wait. 2 stopped the cigarette Business in
2000, end of 2000
So uwhavever i we just put there to sell
outa ves
So'then You say the end of 2000, are you talking about
December of 2000?
Yes:
©." ” Go for the period between October when you took over through
the end of Becesber, the cigarettes you were selling out of
the store were cigarettes which yoo obteines from the
Mainland, correct?
a Yen.
&." "After vecenter of 2000, you still had sone cigarettes left
Over that you had ebtained on the Mainland, Fight?
aA Yes.
Ane you continued to sell those through the store until they
Zan Gut; ie this correct?
a. Yee.
Based on this testinony, it appears that Batle continved to sli “liege?
Cigarettes” after Decencer of 2000, although it is unclear to what extent and
for how long. Batie elto purchased cigarettes from a Costco store located in
Rawat for ressle, slthough the dete this activity began and the relative
proportions of neinlanc-besed end Costco cigarette =: unclear.
5
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
term of probation, and pay a $10,000 fine, in return for a
Gismissal of the charge against CET.
2. Sale of CEI to the ohe
Subsequent to her arrest in April 2001, Batle sought to
sell her interest in CEI and no longer work at the store. At
this point, Myung oh contacted Fong regarding purchase of the
store. At this time, CEI had the following assets: (1) a
commercial lease for premises located at 152 North Pauahi street
in Honolulu; (2) a liquor license, issued by the Honolulu Liquor
Commission, which allowed the sale of packaged liquor at the
stove; and (3) the food and liquor inventory located at the
store. Fong offered to sell the business to Mrs. Oh for
$228,000, the amount that was still owed to her on the promissory
note signed by Batle,
While negotiating the sale, Wr
Oh asked Fong about
the monthly income of the store. Fong referred Mrs. oh to Harry
Lee, the accountant employed by CEI, whom Mrs. Oh knew from prior
business dealings. Mrs. Oh spoke with Mr. Lee, who confirmed the
income of the store for the previous three months. Fong knew
that Batle sold cigarettes from the store and that she had a
wholesale cigarette business as well. Fong also knew that Batle
+ Although Fong wae not the owner of CEI, she was the mortgages of
Batle's house pursuant te pricy promissory note, snd uae to receive the
Purchasing funds as a discharge of Gatle’s cbligation to Fong,
«
$+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER
had been arrested for selling cigarettes without the requisite
stamps.
On May 25, 2001, Mrs. Oh signed @ Stock Purchase
Agreenent, in which she agreed to purchase 1008 of the stock of
CEI for herself and her husband Semin as the sole shareholders.
Although Batle was the seller of the stock, payment would not be
made directly to Batle. Under the agreement, Mrs. Oh agreed to
pay $30,000 innediately as a non-refundable deposit and $50,000
at the time of closing, which funds were to be made to the
Client’s Trust Account of Kiuchi 6 Nakamate and disbursed
according to a separate agreenent between Batle and Fong. As
part of the agreement, Mrs. Oh also signed a promissory note in
favor of Fong in the anount of $148,000, payable at the rate of
$5,000 per month. The Stock Purchase Agreement also provided for
additional compensation for the food and Liquor inventory in
existence at closing of the stock transfer, the amount of which
was negotiated after the closing, Under the agreenent, Batle
assumed responsibility for all of CEI’s liabilities incurred
during her ownership of the corporation, except for those
specifically disclosed.
On the date of closing for the stock sale, May 30,
2001, Fong and the Ohs also signed a document entitled
“Disclosure Re: Stock Purchase Agreement.” Among the disclosures
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
in this document were: (1) a statement acknowledging that Fong
makes no representations or warranties regarding the condition of
assets of CEI, which were to be accepted “as is,” and that the
Ohs agreed to indemnify Fong for any claims arising out of the
condition of the asset:
(2) @ disclosure that CEI had recently
eceived a citation from the Honolulu Liquor Commission for
selling liquor to a minor, for which Batle was deemed to be
responsible, accompanied by an agreenent to indemnify and hold
Fong harmless for any clains arising out of the violation? and
(3) an acknowledgment that Fong has not made any warranties
regarding the success or failure of the business, accompanied by
an agreement to indemnify and hold Fong harmless for any
liability arising out of the success or failure of the busines:
3. Keith Kiuchi’s Role
Kiuchi acted
Fong's attorney in the sale of Batle’s
stock in CEI to the Ohs. Kiuchi’s role as Fong's attorney was
@isclosed to the Ohs both orally and in writing in the Stock
Purchase Agreement:
The parties acknowledge that the law firm of Kiueht &
Nakamoto reprecente Connie Yon Fong and has previously
represented the Seller and the Seller's corporation. In
this transaction, however, the law firm of Kiuehi & Nokenote
represents only Connie Yon Fong and its only other duty will
be to act es escrow and to avaft docunents.” Seller and
Buyer Both acknowledge that they have the right to retain
Separate counsel te represent then and that the law firm of
Kivchi & Nakanoto does not represent them in this
transaction.
‘++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
While the Stock Purchase Agreenent provided that
certain payments be received by Kiuchi “as escrow,” the
undisputed evidence is that Kiuchi received no money to hold in
‘escrow as payments were made and received by the parties
directly. Kiuchi’s role was limited to drafting the transaction
docunents and facilitating their execution and exchange. Kiuchi
testified in his deposition as to his understanding of the
meaning of “escrow’
Escrow in a transaction such a2 this normally would be
that escrow drafts the docunents, Escrow may or may not
handle the money. But St ie not escrow ae me know it With 2
real estate transaction
‘ihenever 7 have referred to escrow, it’s simply to
draft documents. “It's to act really to make sure that stl
Socunents sre signed, that the parties have signed then.
Tn sone cases, it may oF nay not invelve handling
money. In this case, because of certain circumstances, it
Sic not involve us handling money,
The Ohs did not give any instructions to Kiuchi in connection
with the manner in which the documents should be drafted or the
money exchanged.
After Batle’s arrest for illegal cigarette sales,
Kiuchi contacted Deputy Attorney General Earl Hoke on Batle's
behalf
at the request of both Fong and Batle
apparently
seeking information regarding whether Batle would be charged with
a crime. Kiuchi's conversations with Mr. Hoke led Kiuchi to
believe that Batle would not be charged with eny crime.
According to Kiuchi, he did not tell the Ohs sbout the cigarette
FOR PUBLICATION IN WEST'S HAWAET REPORTS AND PAC!
REPORTER ***
sales of Batle, “because based on [his] knowledge, [he]
believe(d] Celia Batle wasn’t going to be charged with any
crime.” Kiuchi further stated in his deposition: “I mean, what.
was disclosed was the sale (Batle] made to a minor and she was
going to be responsible for that. So I think at that point if ve
had any idea she was going to be charged or had been charged, we
would have disclosed that.” Batle vas charged with a violation
of HRS § 245-37(a) (2) on January 31, 2002, seven months after the
sale of CEI to the Ohs.
While Kiuchi attended several meetings between the
parties in April and May 2001, in which the transaction was
discussed, he did not make any representations regarding the
financial value of the business, nor did the Ohs make any such
inquiry of him.
4. Post:
Je events leading to litigation
The Ohs began operating the store on June 1, 2001.
Under their managenent, the monthly income of the store was
$22,000 to $23,000. Sometime in May or June of 2002, Mrs. Oh
called Fong regarding tax liabilities for the previous year of
‘about $30,000. The Honolulu Liquor Commission would not issue a
new liguor license to CEI unless all delinquent federal and state
income texes were paid. Fong was not willing to pay the taxes
owed.
10
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
The Ohs did not pay the taxes, and the liquor license
was lost. In August 2002, the Ohs offered to convey all of the
CEI stock to Fong, which offer was refused. The Ohs subsequently
failed to make a payment owed to Fong under the promissory note.
Litigation ensued.
B. Procedural Background
1. Circuit Court Lawsuit
‘The procedural history of this case is summarized in
the ICA’s Memorandum Opinion:
men CEI defaulted on its debt to Fong, Fong sued Cet,
Myung, Senin, Davi Tamura, Anne Tamura, Michael Tamura,
Celia’ and Renato Vito Batle (Renato). Fong's complaint
alleges that Senin and Myung are “ebiigors” of approximately
5120, 000, and Davie Tamura, Anne Tamura, Hicheel Tenure,
Celia and Renato are "guarantors". It further states that
GEE owed Fong $120,000 secured by the assets of CET and
Celle's residence.
Semin and Myung counterclained against Fong."
Semin and Myung cross-clained against Celia.
Semin and Myung filed a Third-Party Complaint against
Kivens. i
‘Im thete opening brief to the ICA, the ohs claim that “the unpaid
corporate income taxes were a direct result of datle's cale of illegal
cigarettes.” Although the argument ie not clear, apparentiy Batle's failure
to pay the excise tax, a8 well as her choice of including the incone from
cigarette sales from her separste vnclesale business on ner gersonal income
tex return, left CEI with s net profit =~ because it was unable to effset the
Seoets of goods sold” from the cigarette purche:
tox that was net paid => resulting in the tax 1
The Ohe raised the following clains in their coaplaint:
(2) Violation of the Uniform Securities Act, HRS chapter 485; (2) Frau
Negligent Misrepresentation: and (4) Breach of Contract-
3
+ The Ohs raised the following elaine in their third-party complaint
(1) Viclaticn cf the Uniform Securities Act, ARS chapter 65; (2) Breach of
(cont inves.)
u
*#** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACH
REPORTER
on Decenber 17, 2003, the court entered 2 stipulated
judgnent_in favor of’ Fong and against Davia Jon Tamara and
Rane Ju Tonura in the amount of $112,000 "eogether with pre
Judgnant interest of ten percent (108) from April 16, 2001
through October 7, 20031."
On Novenber 15, 2004, Fong filed a motion for sumary
Judgment (HPS2). Although’ not clearly stated, it appears
Ghat Fong's FSI was against. {) Semin and Myung. On
Novenber 18,2004, Kiveni filed a MESS against Semin and
Myung.
fon January 3, 2005, in Light of Celia'e discharge in
bankruptcy, the court dismissed all claine by Fong, Sein,
and Myong against Celia, without prejudice.
On January 7, 2005, the court entered an order
granting Fong's WFSJ against Senin and Myung. On January
127"2008, Fong, Semin, and Myung stipulated that the ancunt
ue on the Promissory Note "including interest, but net
Gneavding costs, expenses and attorneys” fees, Ls
$136, 400-00[.)" On Janvary 18, 2005, the court entered an
Order granting Kiuchi"s MFSJ against Semin and Myung.
on January 20, 2008, Senin and Myung filed » motion
for reconsideration’ (MFR) of both summary judgeent orders:
In the MPR, Senin and Hyung argued:
It 1s the position of (Semin and myung) that
both (Fong) and (Kivchi] may be held Liable to (Senin
ane Myung] fer fa1ling to disclose, prior to. (Senin,
and Myung's) purchase of the stock of (CEI) that the
Seller of the stock, (Celia}, was illegally selling
Untaxed cigarettes from the store premises leased by
{cet}. tn’ (Senin and Myung’s) view, the fact that «
signiéseant portion ef the incone fron the store wae
due to illegal sales is a "naterial fact" within the
purview of felevent Hauaii appellate court decisions.
Although Fong was not nominally the seller of
the stock, [Semin and Myung] contend that she may be
hel liable as an agent of the seller under the
provisions of the Uniform Securities Act, as well as
Eomeon law theories of fraud and negligent
Eisrepresentation, Riuchi's duty te disclose arose
from his underteking to act as “escrow” in the
the stock.
This MER was denied on March 21, 2008.
+s scontinued)
duty as escrow; (3) Breach of uty as crafter of documents; and (4) Conspiracy
to commit fracd,
2
sry 15, 2005, the court entered an order
‘granting Fong's request for attorney fees in the anount of
$34,000. Presumptively, this order is sgainst Semin and
Myung.
fon August 12, 2005, the court entered a default
Judgment in favor of Fong and against CEI for the following
amounts:
$148,000.00 principal
59,200.00 interest {5-30-01 to ¢-1-05)
attorney fees
248, €40.00 subtotal
150,000.00 payment
5°96; 640-00 Judgment.
on October 4, 2005, Fong voluntarily dismissed all
claims ageinst Michael. Tamura, and Renato Batle. On Novenber
212008, "the court entered » Final Judgnent in favor of Fong
‘and against CET for $98, 640; in favor of Fong and against
David Jon Tamura end Anse Jo Tenure (correct legal none is
Ann Ju 8) in the smount of $112,000 plus pre~Judgnent
Interest of 108 from April 26, 2002 through October 7, 20037
in favor of Fong and sgeinet Semin and Myung in the amount
‘of 622,679; and in favor of Kivchi and againet Semin and
Myeng.
eno Op at 7-9 (alterations in original). The Ohs appealed.
2, ICA Decision
On appeal, the ICA issued a final judgnent affirming
the circuit court in all respects except with regard to the ohs’
claim that Fong committed fraud when she collected one month's
rent on the representation that it was a security deposit. With
regard to the two issues raised by the ohs to this court, the Ica
affirmed the grant of summary judgment on the Ohs’ claim under
MRS § 485-25" as well
the ohs’ claim that Kiuchi breached a
* HRS § 495-25, entitled “Fraudulent and other prohibited practices,”
provides in relevant party
(continued. .
a
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CIFIC REPORTER ***
duty of care that he owed to the Ohs as “escrow” for the stock
purchase transaction.'*
With respect to the HRS § 485-25 issue, the ICA
summarily concluded that § 485-25 does not apply “when a party
sells all, as opposed to only a portion of, the stock of a
corporation,” relying on State v. Hawaii Market Center, Inc., 52
Haw. 642, 485 P.2d 105 (1971). Memo Op at 11.
With respect to the claim that Kiuchi has a duty as an
escrow by “failing to inform [the Ohs] of the illegal cigarette
sales made by [Batle],” the ICA found no such duty. Instead, the
court cited the following statement from Delello v,'Home Escrow,
The general rule is that an escrow depository cccups
Lisueiary relationship with the parties to the escrow
agreencnt or instructions and must comply strictly with the
provisions of such agreement or instructions. See 30K,
E.5.8. Escrows § & (1965); Noocworth v. Recwood Empire
Saxings 4 Loan Ass'n, 22 Cel. hp. 34207, 99 Cal. Rptr. 373
(is11)? Union Title Cossany v, Burs, 102 Ariz. 421, 432 Pr2d
433 (1567).
"1 sscontinuea)
(a) It is unlawful for eny person, in connection with the offer,
le, oF purchase (whether in a transaction described in
or otherwise) of any security (whether or not of = clase
Section 485-4), in the State, di
(a), 30! exploy any device,
(2) To meke any untrue statement of @ material fact or omit to
state a saterial fact necessary in order to make the
Statenente made, in the light of the circumstances under
wien they are nede, not misleadingy
(3) To engage in any act, practice, or course of business which
‘or would operate as 8 fraud of deceit upon any
the Ica
acsinst Feng.
50 rejected the Ohs’ negligent misrepresentetion claim
“u
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4 Haw. App. 41, 47, 659 P.2d 759, 763 (1983). The ICA concluded
“that there is no evidence of an agreement or instructions
imposing on Kiuchi a duty to take the steps to protect [the Ohs)
that [the Ohs] contend was his duty to take.” Memo Op at 20.
11. STANDARD OF REVIEW
We review the circuit court’s grant or denial of summary
Jocgnent de novo, davall isicl community Pederai credit
we. Hekay 94 Hewat 213, 221, 11 F-38 1, 9 (2000)
The standard for granting # notion for summary judgnent ie
settle
(Slumnary Judgment Le appropriate if the pleadings,
Gepositicns, answers to interregstories, snd
Scniseions on file, together with the affidavits, if
any, show thet there ss no genuine issue as to any.
Baterial fact and thet the moving party is entitled to
Sudgnent ass matter of law. A fact is material if
proof of that fact wosld have the effect of
stablishing or refuting one of the essential eles
oe ‘action or cefense asserted by the
parti Gvidence most be viewed in the Light
Rost favorable to the nob
words, we must view allo
joving party.” In other
the evidence and the
Unterences drawn therefren in the light most favorable
to the party opporing the action.
Id, (citations and internal quetaticn marks omitted).
and count 5 98 Mawas's 233, 244-45, «7
Pisa 38, 35)
#0 (2002) teacond siteration in original) «
, 104 Hawai'i 468, 474, 92 P.3d
477, 483 (2004).
TIT, DISCUSSION
A. The Ohs’ HRS Chapter 485 Claim Against Fong
The Ohs contend that the ICA erred in applying the
standard from Heweii Market Center to conclude that the anti-
fraud provisions of Hewaii’s Uniform Securities Act, HRS § 485-
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25, do not apply when a party sells all, as opposed to only a
portion, of the stock of a corporation. Memo Op at 11. The ohs
make two arguments in support of this contention: (1) that the
ICA misinterpreted this court’s decision in Hawaii Market Center;
and (2) that the proper standard for what constitutes a
“security” should be supplied by Landreth Timber Co, v, Landreth,
471 U.S. 681 (1985), a United States Supreme Court case that
interpreted Section 10(b) of the Securities Exchange Act of 1934,
35 U.S.C, § 783 (b) (Supp. 2007), which has similar language to
the Hawai'i law.)
1. The statutory language
Analysis of whether HRS § 485-25 applies to this
transaction must begin with the statute itself, HRS § 485-25
makes it unlawful for any person to engage in various types of
fraudulent conduct or other prohibited practices “in connection
with the offer, sale, or purchase . . . of any security (whether
or not of @ class described in section 485-4), in the State,
Girectly or indirectly.” HRS § 485-25(a) (emphasis added) .
Among the provisions prohibiting certain conduct is Section 485-
25(a) (2), which makes it unlawful “(t]o make any untrue statement
of a material fact or omit to state a material fact necessary in
e State of Hewai'i Conissioner of Securities (the Commissioner)
filed an anicus curiae brief supporting the Ohe” position
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order to make the statements made, in the light of the
circumstances under which they are made, not misleading.
The chief dipute between the parties is whether this
section applies to the stock purchase transaction in this case;
ues, whether the transaction involved a “security.” “Security
is defined by HRS § 485-1(13), as follows:
“security” means any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest
or participation in any profit-sharing agreenent,
Collatersletrust certificate, preorgenization certificate or
Stbseription, transferable share, investnent contract,
Soriable annuity contract, voting trust certificate,
certificate of deposit for a security, certificate of
interest in an oil, gas, or mining title or lease, option on
Conmodity futures contracts of, in general, any interest oF
[Seerument commonly know as a “eecority", or any,
Certificate of interest or participation in, tesporary or
interim certificate for, guarantee of, cr warrant or Fight
to subscribe to oF purchase, any of the foregoing.
NSecurity” does not include any insurance or endowment
policy of fixed snnoity contract.
HRS § 485-1(13) (1993) (emphases added)? The Ohs contend that
the security was “stock,” as denominated by the conveying
instrument.
tn addition, ERS chapter 485 indicates that its definitions are to
be construed literally. The definitions contained in HRS § 485-1 are prefaced
Wich the fellowing instruction: "when esed in this chapter the following
tems, ss y have the following meaning.” Cia.
Securities Exchange Act of 1934, 3a}, 15 U.S.C. Tela) (prefacing
inition of terme in Act with’ stetenent that “(a) . ... When used in this
chapter, unless the contest otherwise requires -- [enunerated terms wil be
Getines as folloKe)”) =
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- Hawaii Market Center: Does the risk capital approach
apply to all securities, or just “investment,
contracts"?
In its Memorandum Opinion, the ICA held that HRS § 485-
25 does not apply “when a party sells all, as opposed to only a
portion, of the stock of a corporation,” based on our decision in
Hawaii Market Center, which adopted the “economic reality”
approach to defining an investment contract. In reaching thi
conclusion, the ICA did not distinguish between “stock” and
“investment contracts” as different types of “securities” for
Purposes of HRS § 485-1(13) and applied Havaii Market Center
without further analysis.”
At issue in Hawaii Market Center was “whether the
*Founder-Menber Purchasing Contract Agr!
nts’ issued by Hawais
Market Center, Inc. . . . constitute[d] securities within the
meaning of . . . HRS § 481-1(12)." $2 Haw. at 643, 485 P.2¢ at
106. Although framed broadly in the first sentence of the
opinion, subsequent references make clear that the court's
analysis only concerned a subset of the “securities”
The ICA stated: “Based on the following Hawai'i precedent, the
anewer (to the Ohs question of whether HRS § 65°25 applies te the trencaction
et issue] is no." Meno Op at 11. This conclusion was followed by # lesgehy.
gutation from Hawaii Market Center, as well as a subsequent lengthy quctation
from Landreth, with regards to which the ICA opined: “Ine fact thet the
United States. Suprene Court sutsequently decided essentially the
opposite to the Hawai'i Suprene Court's decision does not authoriz
to contradict the Hawai'i Suprene Court's prececent.- Meno Cp at 13
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determination: whether the agreements at issue constituted
“investment contracts
‘Thus, after, setting out “the risk capital approach to
defining an investment contract,” id. at 648, 485 P.2d at 109
(emphasis added), this court concluded that the contracts in
question constituted such “investment contracts” within the
meaning of HRS $ 485-1(12). Under the risk capital approach
adopted by the court, an {nvestment contract is created whenever:
(2) An offeree furnishes initial value to an offeror, and
(2) a portion of thie initial value ie subjected to the
risks Of the enterprise, and
(3) the furnishing of the initial value i induced by the
offeror's promises or representations which give rise toa
Yessonable understanding that a valuable benefit of sone
ver and above the initial value, will accrue to the
‘ae a result of the operation of the enterprise, and
Sf the enterprise,
Id. at 649, 485 P.2d at 109 (emphasis added). In adopting this
test, the court rejected what it considered the overly-mechenical
approach to determining what constitutes an “investment contract”
enunciated by the United States Suprene Court in SEC v. WJ.
Howey Cou, 326 U.S. 293 (1946), which the court believed to be
based on a narrow concept of investor participation. The court
preferred the broader economic realities test because it
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(2) recognized the economic reality of a security," (2) was
considered broad enough to fulfill the remedial purposes of the
Securities Act,"* and (3) supplied “the necessary broad coverage
to protect the public from the novel as well as the conventional
forms of financing enterprises.” Hawaii Mkt, Ctr, 52 Haw. at
649, 485 P.24 at 109.
The Ohe argue that Hawaii Market Center should not
control this case, for two reasons. First, the Ohs contend that
the Hawaii Market Center test applies only to determine whether
an “investment contract" exists, not whether the instrument is a
“security.” the ohs argue that @ stock is by definition a
“security.” Secondly, the Ohs argue thet this court should apply
the reasoning set out by the United States Supreme Court in
Landreth, which analyzed whether a stock was a “security” within
the meaning of the Securities Exchange Act of 1934.
The United States Supreme Court's analysis in Landreth,
although not binding as to the interpretation of our state law,
M As the court stated, “The salient feature of securities sales is the
poblic solicitation of venture capital to be used in a Dasine
enterprise... This subjection of the investor's money to the risks of an
fenterprive over which he exercises no managerial control ie the basic economic
reality of 3 security trancsction.”” Hawaii Wkt. Ctr, 2 Haw. at 648, 485
Pizd at 109 (estations omitted)
B The court cited two such purposes: (2) te prevent fraud, and (2)
to protect the public egainst the imposition of unsubstantial schenes bY
Tegulating the transactions by which proncters go to the public for ritk
cepital.” ld.
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provides guidance on both arguments raised by the Ohs. In
Landreth, the Court was asked to consider whether the sale by a
father and his sons of all the common stock of a lumber business
they operated was the sale of a “security” within the meaning of
the federal securities laws. The Court held that when an
instrument is both labeled “stock” and “possesses ‘some of the
significant characteristics typically asseciated with’ stock
+++ ‘@ purchaser justifiably (may) assume that the federal
securities laws apply.'" Landreth, 471 U.S. at 686 (quoting
nited Hous. Found., Inc. v. Forman, 421 U.S. 837, 50-51
(1975))." Those characteristics are: “(i) the right to receive
dividends contingent upon an apportionment of profits: (41)
negotiability; (iii) the ability to be pledged or hypothecated;
(iv) the conferring of voting rights in proportion to the nunber
of shares owned: and (v) the capacity to appreciate in value.”
Id. (quoting Forman, 421 U.S. at 851). Under Landreth, the
“investment contract” analysis of Howey is only used, therefors
“ on the sane cay it decided Landreth, the United States Suprene Court
leo handed down Gould v. fustenacht, in which it restated Landreth’ s primary
holding in this manner?
here an instrunent bears the Label “stock and possesses a11 of the
Characteristics typically asecciated with stock, s court will not be
Eequired to look Beyond the character of the instrument to the economic
abstance of the transaction to deternine whether the stock is 2
security" within the meaning of the Acts
472. 9,8. 702, 704 (2985)
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for instruments unlike stock that do not bear these
characteristics. The Court therefore rejected the “sale of a
business” doctrine, followed by various courts prior to Landreth,
according to which the sale of a business via a stock transfer
was not covered by the federal securities laws.
The Court in Landreth discussed three reasons why an
econonic reality analysis need not apply to a sale of stock that
has the characteristics of stock. First, the Court distinguished
prior cases thet applied an economic reality test, stating that
those cases “involved unusual instruments not easily
characterized as ‘securities(,)'" such that an economic reality
epproach was appropriate to determine “that the instruments were
actually of a type that falls within the usual concept of a
security.” Id, at 690. Secondly, the Court noted that “the
Howey economic reality test was designed to determine whether a
Particular instrument is an ‘investment contract,’ not whether it
fits within any of the examples listed in the statutory
definition of ‘security.'” Id. at 691. Lastly, the Court
rejected the contention that the securities acts were “intended
to cover only ‘passive investors’ and not privately negotiated
transactions involving the tranefer of control to
ventrepreneurs,’" id, at 692, based on the purposes of the Act:
The 1936 Act contains several provisions specifically
governing tender offers, disclosure of transactions By
2
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corporate officers and principal atockholders, and the
Fecovery of short-swing profits gained by such persons.
Eliminating from the definition of “security” instruments
involved in transactions where control passed to the
Purchaser would contravene the purposes of these provisions.
Id. (citations omitted).
The logic of Landreth applies with equal force to
Interpretation of Hawai'i law in this case. As described in
Landreth, the instruments in Hawaii Market Center constituted
“unusual instrument(s] . . . not easily characterized as
curities,’” see Landreth, 421 U.S. at 690. Specifically, they
were “Founder-Menber Purchasing Contract Agreenents” issued by
Hawaii Market Center, under which individuals who purchased from
Hawaii Market Center certain goods (at highly-narked up prices)
gould become either founder-member distributors or founder-member
supervisors entitled to certain commissions and fees for their
activities in promotion of the company. Second, like the
Howey case, Hawaii Market Center (which discussed Howey in some
detail) involved the question of whether an instrument was an
“investment contract,” not the broader question of whether it fit
into any of the types of “securities” delineated in HRS § 485-
1(12). Specifically, the four-point risk-capital approach was
adopted by the court to determine whether “an investment contract,
is created,” 52 Haw. at 549, 485 P.2d at 103, not as a general
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rubric for determining whether a “security” exists.”
Furthermore, HRS chapter 485 provides for registration of certain
securities when offered for sale to menbers of the public, and
nothing indicates that the legislature intended to limit these
provisions to security transactions that do not pass control to
the purchaser. Therefore, Landreth supplies convincing reasoning
to hold that the Hawaii Market Center test should not apply to
every security described in chapter 485.
The majority of states with laws similar to Hawaii's
Uniform Securities Act (so-called “blue sky laws”) have also
followed the reasoning of Landreth to require that a stock
“characterization” test be applied to determine whether an
* this application of the risk-capital approach to investment
contracts has been maintained in subsequent cases of this courts “In
‘Tnivectra z, Ushiiina, this court stated:
Tn Hawaii Mic, Cor,, $2 Naw, €42, 405 P.24 105, this court articulated a
four-pronged test to determine when 2 schene oF trancaction involved
‘within the purview of the Uniform
Securities Act, KS ch. {05, helcing that, for purposes of the act, an
investment contract is created whenever.
112 Hawai'i 30, 98, 144 P.3d 1, 9 (2006) lempheats added). Throughout its
subsequent ansiysis, the court in Zrivectra discussed Hanaii Market Center as
a tet to determine whether an investment contract is formed, not a security
Sn general.” The “securities” at issue in Trivectra were contracte in which
Trivectra sold online “shopping malls" that allowed private individuele to
host a customized website containing links to brand name retailers, for which
menbers peid $79.00 for three months of service, and allowed then to make
hnoney through sales conmissions and recruitment of future purchasers of online
shopping mails. Jd, at 94, 14¢ Psd at 5. This court concluded that the
contracts were “investnent contracts” under the Hausl{ Market Center test,
thereby affirming the circuit court, which had affirmed the sane conclusion
arrived at by the Conmissicner of Securities of the State of Hewat
Department of Commerce and Consuner Affaire. Id. at 101, 144 Pe3d at 22
Therefore, Trivectia only spplied the Havaii Market Center test to determine
whether eh unusual type of contract constituted @ Tzecurity,” and did ner eal
with stock or the definition of “securities” in a nore general sense.
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instrument labeled stock is considered a ™:
N. Rapp, Blue Sky Redulation, § 2.02, at 2-18 to 2-19 (2006)
curity.” See Robert
(citing cases from Georgia, Kensas, New Hampshire, Michigan,
Alaska, North Dakota, Minnesota, and Washington); see, e.g,
‘chen v. Wi: 2, 423 S.B.2d 231, 233 (Ga.
1992) (“Landreth Timber provides appropriate guidance in
resolving issues of whether particular ‘stock’ is a security
under [the Georgia Securities Law]. In applying the Landreth
stock characterization test to. . . transaction(s] . . . we will
use a balancing test. The appropriate test to be employed is
whether the . . . stock bears such characteristics usually
associated with conmon stock that a purchaser justifiable may
assume that appropriate security laws apply.”). Nevertheless,
some courts have rejected the Landreth approach. See, e.g,
Anderson v. Heck, $54 So, 2d 695 (La. Ct. App. 1989) (declining
to follow what it termed “the literalist approach” taken by the
court in Landreth, and therefore finding that Louisiana Blue Sky
law did not apply to transaction in which 1008 of the stock of a
closely held corporation was sold to the purchaser, because the
purchaser had free access to and ample opportunity to examine the
financial records, assets, and other matters relating to the
business enterprise); Saunders, Lewis & Rav v. Evans, 512 N.E.2d
59 (111. App. Ct. 1987) (refusing to extend coverage of blue sky
2
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law rescission remedy to an individual who, simultaneously with
Purchasing what was undeniably corporate stock, was elected to
the corporation's board of directors and made an officer).
Against this majority of opinion, Fong argues that
economic conditions in Hawai'i and the long-reign of the Hawaii.
Market Center approach counsel against adoption of the Landreth
approach to “stock” under our law. Instead, Fong maintains that
an economic reality test should govern business sales in Hawai'i,
because although many transactions take the form of a stock
transfer, they are often arms-length transactions among small
businesses owners for which common law remedies are adequate to
Protect against fraud. Fong also suggests that adoption of a
Landreth test would unsettle expectations and lead to an
explosion of litigation by small business purchasers disappointed
by businesses failure.
in its
‘The Commissioner, on the other hand, argu
amicus brief that applying a test based on managerial control to
stock tran:
tions would produce uncertainty for investors and
lead to Litigation over whether @ given stock transaction
actually conveyed managerial control to a shareholder. The same
concern was expressed by the United States Supreme Court in
andreth. See Landreth, 471 U.S. at 696 (“[I]£ applied to this
case, the sale of business doctrine would also have to be applied
2
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to cases in which less then 1008 of a conpeny's stock was sold.
This inevitably would lead to difficult questions of
Line-drawing. The Acts’ coverage would in every case depend not
only on the percentage of stock transferred, but also on such
factors as the nunber of purchasers and what provisions for
voting and veto rights were agreed upon by the parties. -
[Cloverage by the Acts would in most cases be unknown and
unknowable to the parties at the tine the stock was sold. These
uncertainties attending the applicability of the Acts would
hardly be in the best interests of either party to a
transaction.”).
It is noteworthy that no decision of this court has
applied the Hawaii Market Center test to bona fide stock
transactions." Although many business sales take the form of
stock sales, it Ss not incongruous, as Fong suggests, to apply
HRS chapter 485 to such transactions when consummated through
stock purchases as opposed to asset sales. The purchase of
the United States OLetrict Court for the District of Hawai'i, in a
pre-Landreth decision interpreting Hawai'i law, applied the Hawaii Marker
Eggcer cest to the transfer of sheres nade in connection with = corporate
Feorganization. fiawai's Comp, v, Crossley nce Hawal's Corot, 567 F. Supp.
603 {D. Haw. 1983). It should be notea that the court in Hewat Corp, also
found the transfer of shares in thet case not to qualify as a “security” under
the federal securities laws, besed cn the United States Supreme Court decision
in Forman. Ae later expleined by the court in Lancreth, the relevant question
onder Forman is not simply whether an inetrunent ie Llebeled “stock,” but also
Whether the inetrunent conteine characteristics typically associated with
[Stock so as to gain protection under the securities laws. See intra Section
III.A.3. “We ere not bound By Havaii Core., and do not find it persvasive in
Light ‘of eubsequent decisions of the United States Supreme Court.
2
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securities entails greater risk than asset purchases, because the
purchaser assunes all debts and liabilities of the company in
addition to its physical inventory. It is the purpose of the
Uniform Securities Act to protect against fraud in such a
transaction, so long as it involves a “security.
Therefore, based on (1) the Landreth case and the many
state courts who have adopted its interpretation with respect to
their state securities laws, (2) the inclusion of “stock” within
the definition of “security” in HRS § 485-1 and the intent of the
legislature that definitional terms hew to the text of Hawaii's
Security Act, see supra note 12, and (3) the remedial purposes of
Hawaii's Uniform Securities Act, ses Hawaii Mkt. Ctr., 52 Haw. at
648, 485 P.2d at 109 (discussing the “remedial purposes of the
Securities Act;” noted supra at note 18), there are convincing
Feasons to apply the Landreth test to determine whether an
instrument labeled stock is a security under Hawas's law.
Accordingly, the ICA erred in applying the Heuaié Market Center
not intended.
test to a type of instrument for which it w
4 It should be noted that neither the ICA nor the circuit court made
any rulings relevant te whether HRS § 425-25 would have been violated if the
Anstronent in question was determined to be a security
ze
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Did the instrument in this case have the traditional
characteristics of stock such that it qualifi a
“security” under ERS § 425-1(12)?
As the above analysis makes clear, whether the anti-
fraud provisions of HRS chapter 485 apply to the stock purchase
in this case depends on whether it had the traditional
characteristics of stock. See Landreth, 471 U.S. at 686 ("(i)
the right to receive dividends contingent upen an apportionment
of profits: (41) negotiability; (111) the ability to be pledged
or hypothecated; (iv) the conferring of voting rights in
proportion to the number of shares owned; and (v) the capacity to
appreciate in value.” (Quoting Forman, 421 U.S. at 852.)).
Furthermore, an ingtrument may qualify as “stock” under the
Landreth test even if the corporation is a close corporation,
see, €.a., Sulkow v. Crosstown Appare]l Inc., 807 F.2d 33, 37 (24
Cir. 1986) (“The fact that Crosstown was a close corporation,
with the Shareholders’ Agreement envisioning some limitations on
the stock's negotiability and pledgeability, is insufficient to
negate the character of the stock as a security. Limitations on
the transfer of stock in close corporations are common, but
neither the snall size of the corporation nor the restrictions on
transferability remove such @ corporation's stock from the reach
of Rule 10b-5."), or if the buyer purchases 1008 of the common
stock of the corporation and intends to manage the business. See
Fy
*** FOR PUBLICATION IN WEST'S HAW,
‘IREPORTS AND PACIFIC REPORTER ***
Golden v. Garafalo, 678 F.2d 1139, 1146 (2d Cir. 1982) (*So far
as the anti-fraud policies of the Acts are concerned, the
possibilities of fraud and the ability to protect oneself through
contract are the same as to a ‘passive’ investor buying 308 of a
corporation's shares from a sole shareholder or an ‘active’
purchaser taking 100% and expecting to manage it directly... .
In truth, purchasers of a business rightly regard themselves as
investors as well as managers. Transfers of corporate control
frequently are motivated by a hope for capital gains resulting
from improved management, and it is altogether artificial to
classify such transactions as exclusively conmercial.”) .
Fong's motion for summary judgment sought dismissal of
the HRS chapter 485 claim on the grounds that the stock purchase
agreement was not @ “security” under the Hawaii Market Center
test for investment contracts. The circuit court granted this
motion without explaining its basis and the ICA affirmed on the
grounds that the Hawaii Market Center test controls.
Because this basis is incorrect, and Fong has not
demonstrated that the stock purchasing agreement does not have
the characteristics of stock explicated in Forman and Landreth,
there remain genuine issues of material fact regarding whether
the instrument qualifies es stock. Fong’s motion for summary
judgment did not allege that the instrunent lacks the
0
‘+8 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
characteristics of stock, nor has Fong shown an absence of any
genuine issue as to the material facts regarding this
characterization.”
Therefore, Fong has not met her burden on summary
judgment to show the absence of any genuine issue as to all
material facts regarding whether the transaction at issue
involved the sale of security. Accordingly, the ICA erred by
affirming the circuit court's judgment granting summary judgment
‘to Fong on the Ohs’ HRS chapter 485 claim.
B. ‘ons? Kivet
The ICA affirmed the circuit court's grant of summary
judgement in favor of Kiuchi on the basis that an escrow agent’s
duty of disclosure is limited to agreements or instructions
imposing such a duty, and there is no evidence of any such
agreement or instructions in this case. We agree that Kiuchi did
not owe @ duty of disclosure to the Ohs under the facts of this
case. See supra Sections I.A.3 and I.B.2. However, we caution
In Fong's answering brief subaitted to the ICk, Fong presents a
brief argurent that responds to the Ohs’ contention thet the instrument
Guelifies as 8 security because it 1s stock. Quoting Forman, Fong states that
Ske Ouner-cperators, the One cbviously were not expecting “divicends."” See
Forman, 421 0.8. et 651. (describing ost common feature of stock”
pen Spportionnent of profite,’™
359 (1967)).. However, the
Goestion is not one of expectation, but of what rights are associated with the
Fistronent labeled “stock.” Regardless, however, this argusent ~~ raised for
the first time on sppecl -- does not extinguish ol] gencine issues about
Whether the dnetrunent in this case qualifies as “stock.”
3
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *+*
attorneys about the potential for conflicts of interest in
situations such as this where an attorney for one party also
purports to act “as escrow” for the transaction between the
attorney's client and another party. See Hawai'i Rules of
Professional Responsibility Rule 1.7(b).
Iv. conewstoN
Therefore, the November 16, 2006 judgment of the ICA is
vacated in part and the case is renanded to the circuit court for
further proceedings in light of this opinion. In all other
respects, the ICA’s judgnent is affirmed.
‘Thomas T. Watts
(of Kemper & Watts)
for petitioners/defendants/
counterclaimants/cross-
claimants/third-party
plaintiffs-appellants HeLa ar
Semin Oh and Myung Hui Oh
David J, Gierlach iB a
for respondent/plaintiff/ ® ree
counterclaim defendant
appellee Connie ¥. Fong aooeeey
Keith K. Hiraoka (of Rosca,
Loule @ wlraoka) for respendent/ Yume. Aap he
third-party defendant-appellee
Reith #. klochi
on the brief:
Patricia J. Moy
for amicus curiae State of
Hawai'i Commissioner of
Securities
32
|
6cbaef2b-f3d1-4565-9627-ab92c416ab8c | Paul v. Department of Transportation. | hawaii | Hawaii Supreme Court |
[Ale onARY
‘#4 FOR PUBLICATION IN WEST'S HAWAI'E REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
-— 000 ~~
ANNIE PAUL, Inspector #260 and AUTO SHINE II, Inspector Station
#429, Respondent-Appellant-Appellee,
DEPARTENT OF TRANSPORTATION, STATE OF HAWAI'I,
SEPTEMBER 24, 2007
Appellee-Appeliant a)
No. 27238 ae OS 2
APPEAL FROM THE THIRD crRcUIT couRT =a? eM
(CIV. NO. 04-1-0097K) f = 9
2
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
opt yIN
The appellee-appellant State of Hawai'i Department of
‘Transportation (DOT) appeals from the March 18, 2005 judgment on
appeal of the third circuit court, the Honorable Ronald tbarra
pr
ding, entered in favor of the respondent-appel ant
Annie Paul and against the DoT.
ppellee
The director of the DOT (hereinafter, “the director”]
had earlier: (1) adopted the reconnended order of a 00T
administrative hearings officer (AHO), following a contested-case
hearing in which the AHO found and concluded that Paul had failed
to perform vehicle safety inspections in accordance with Hawai'i
Administrative Rules (HAR) chs. 19-1332 (1994) (governing the
periodic inspection of vehicles) and 19-133.5 (1994) (governing
the suspension or revocation of an official inspection station or
‘#4 FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *¥*
inspector's certification) and Hawai" Revised Statutes (HRS) ch.
286 (1993) (pertaining to highway safety); and (2) affirmed the
September 23, 2002 notice of revocation of Paul's right to
conduct vehicle inspections.
on July 8, 2004, Paul appealed to the third circuit
court, which, on February 7, 2005, concluded that HAR
$§ 19-133.2-28 to 19-133.2-38,! the relevant HAR provisions at
issue (hereinafter, “the inspection procedures"), were not vague
when read individually but, when read in conjunction with HAR
§ 19-133.2-40 (Rule 40),? were, in the aggregate
“vague and
indefinite . . . [and,] therefore(,] unconstitutional under [HRS]
‘wan § 19-133.2-28 through -38 (1) set forth detailed procedures to
be followed by Licensed motor vehicle safety inspectors in carrying out
Enepections on steering and suspension systems, tires and wheel alignment,
wheels, brakes, lazps snd reflectors, horns, glazing materiel, body and sheet
etal components, the exhaust system, the intake and fuel systems, and the
Speedometer and odeneter, and (2) establish criteria constituting failure in
ach of those areas.
+ aR § 19-133.2-40 provided that “[{]nepection of all required
components, as set forth in (HAR §6].19-133.2-27 te 19-133.2-38, may be
perforsed visually and a venicle certified in compliance with this chapter
Based upon the general appearance of the vehicle.” Effective December’ 2,
2008, the OOT" s Motor Vehicle Safety Office repealed HAR § 19-133.2-40
2
‘e+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
§ 91-14(g) [(1993)] . . . .? On March 18, 2005, the circuit
court entered judgment in favor of Paul and against the DoT.
On appeal to this court, the DOT asserts: (1) that,
under rules of statutory construction, the inspection procedures
and Rule 40, read together, are not void for vagueness; (2) that,
insofar as Paul does not dispute that forty of the seventy-five
documented failures to inspect that she committed did not
implicate Rule 40, she did not establish any prejudice to her
substantial rights, see HRS § 91-14(g), supra note 3; and (3)
that, inasmuch as she conceded under oath that she was unaware of
Rule 40 until more than a year after her inspector's license vas
revoked, she could not have been prejudiced by any purported
vagueness imported into the regulations by the wording of
Rule 40.
> aRS § 91-1415) (2993) proviced:
view zecord the court may affirm the decision
of the agency oF renand the case with instructions for further
proceedings; or St may reverse or sodify the decision and order if
becau . ‘usions, decisions
(i) Inviolation of constitutional or statutory
provisions; or
(2) Trvexcess of the statutory authority or jurisdiction
of the agency: or
(3) Made upon unlawfut procedure; or
(a) Kefected by other error of law; or
(5) Clearly erroneous in view of the reliable, probative,
fand substantial evidence on the whole record) or
(6) Arbitrary, or capricious, or characterized by sbuse of
Giseretion or clearly unwarrented exercise of
Giscretion
(Emphases sdded.) On July 1, 2006, the Legislature amended HRS § 91-14 in
Tecpects immaterial to the present matter.” See 200¢ Haw. Sess, L. Act 202,
$8 and 85 at 921, 94
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For the reasons discussed infra in section III, we hold
that the inspection procedures and Rule 40, taken as a whole,
were not unconstituticnally void for vagueness. We therefore
vacate the circuit court’s March 18, 2005 judgment and remand for
further proceedings consistent with this opinion.
1. BACKGROUND
A. The Initial Revocation
During July and August 2002, DOT inspector Tyrus
Takimoto conducted video surveillance of Paul's inspection
station to observe the manner in which she conducted vehicle
safety inspections. Paul testified that she was aware of the
surveillance. Takimoto observed Paul issuing safety stickers
without conducting required system checks, in many instance:
failing to conduct even visual inspections of relevant vehicle
systems such as steering and suspension, brakes, and the intake
and fuel systems.‘
On September 23, 2002, the DOT revoked Paul's motor
vehicle safety inspector certificate. The DOT based the
revocation upon seventy-five incidents observed by Takimoto in
which Paul failed to conduct required inspections of vehicle
components during the inspection of eighteen vehicles. On
September 30, 2002, Paul filed a petition for a contested-case
«the circuit court found that none of the director's findings of
fact were clearly erroneous and Paul did not challenge the director's findings
‘either on appeal to the circuit court or to this court. Rather, she focuses
her arguments on the conclusion of law that HAR §§ 19-133.2-28 through =36,
read in conjunction with Rule 40, are veld for vagueness. The we cite
to the recomended decision and order, adopted by the director
entirety, for salient uncontested facts,
‘4 FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *+¢
hearing. Hearings were conducted on January 15 and March 5,
2004.
Testimony at the hearings focused in part on the DOT's
harmonization of the inspection procedures with Rule 40:
(pat):
Takimoto:
(Paul):
Takinoto:
(Paul):
Takinoto:
(pavt):
Takinote:
(Paull
Takinote:
ieauiy?
‘Takinoto:
[Rule 40) tells you that there doesn’t have to be
brake test. You ean do an inspection visually,
correct?
Not necessarily.
What Goes it say? It says sections 27 through 38.
‘That includes brakes, right?
Correct
And it says tests can be performed visually. Now
visually an't driving the car around is it?
Right. "But it says may be performed, and in the
specific section about brakes it does indicate about
the brake ‘2 test drive, that four to
eo deive.
Tals sest save it can be done visially, cosen'e 12?
This section save, the tests for all these sections
‘fan be done visuslly.Visualiy means you don"t drive,
Ebr those-aress, sections, conconents ... thet (are!
applicable, to be done a tinued inspection.
Ohiso thet’s your sntermretsrion thst sien ic cave
sidual here, it dosn't mean visual for all these
sctions. Dir just certain sections?
iene
ORS and then Le
in’ compliance wit
inspection chapter,
the vehicle. What does
of the venicle, Oo you
ks far as ite condition.
50 you can just look st the general appearance of the
venlele end certify it. Is that what that says?
Again, in compliance with the ether specified sections
Where. . sit 4s applicable.
can be certified
inde means the entire
2 appearance of
I appearance
wea.
(Emphases added.) Paul herself testified that when she tested a
vehicle’s brakes she would perform more than a visual inspection:
Paul's counsel asked her, “So, . . . how would you check the
‘04 FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER ***
brakes, or what . . . observations{] could you make regarding
them?" to which she responded, “You could just go in the car and
pr
floor.”
8 on the brakes and make sure it doesn’t go right down to the
John Lovstedt, a motor vehicle safety officer with the
DOT’s Highways Division who bore primary responsibility for
enforcing the periodic motor vehicle inspection program
testified that DOT inspectors had interpreted Rule 40 in
conjunction with the inspection procedures in order (1) to
harmonize them in practice and (2) to support “the objective [o
which} is to reduce
the motor vehicle safety inspection progr:
the number of mechanical or component failures(,] thereby
reducing the probability of crashes and improving highway
safety”:
[aut]: filnen (Rule 401 savs the certificate of
ingpestion “can be -iasyed based unon the cenera,
‘Sopesrance cf the vehicle, wnat cose thar mean-to vou?
Lovatedt: That means that there are tines when iust a viaual
‘inspection will be adequate, There are other times
wien it won't be adequate.
(rout): oes te say there that there are tines when it's not
st + adequate?
Lovetedt: it doesn’t in that phrase right where you are reading.
{Paul}: That’s your interpretation.
Lovetedt: But if you were to take that and read it the way you
want to understand it, you might as well throw
everything out.
tau}: T'didn"t make the rules
Lovetedt: Tm showing you how these rules are to be
Interpreted. And if you look a(t] the part on brakes
aban illustration, s€ says that it shail be based
Spon a perfomance test. It doesn’t say observation.
(Paw Where's it say that? It doesn’t . . . say that in the
rules
tovetedt: ["]Service and parking brake systems shall be
inapected for performance. ("]
pavt Perioa. Ok:
Lovetedt: Te doesn’t say observation; it says performance.
(Paul [Rule 40] says regarding the inspection requirenents
set fortn in HAR §§ 19-133.2-]27 through [-138,
6
‘te FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
general appearance of the vehicle can support a
Certificate of inspection. That is what it says.
Now, the purpose of that is not to negate everything
that was written before it. You're taking the Last
section there and canceling everything out.
ST’m not canceling it out. i'm Feading what it
says.
How would you . . . inspect the horn visually? You
wouldn’s be able'to do it
trau2l: Te says you can do it here. f didn’t make the rul
It says regarding all the previous requirenents, th
Scan be done visually. =
toveredt: °°!" Te says may. The word ’may ie there so that
eel
(eau2}: o'that lenves an alternative to people doing
inspect r7
ahs
tovetedt: Ef'they tind » way that they can do the inspection
without a _measurenent, they may,
(eau): Sere does it gay that?
Tovevedt: In the rules, That's the pursose of the word may.
ipaui]: Rave you tolé (DoT motor vehicle control inspector
Michael} Hlanchano ands. = Takinsto or any of your
«ss people that work for the County that an
Ingpection may be done visually, and they don’t
necessarily have to drive the vehicle?
I never said that they don't have to drive a vehicle.
Did you tell them that they may do it visually?
The brake test?
Any of the tests, brake test included.
+ Moy T dian’ tay’ thee.
[Paul]: Way not? That's what ‘the rules say.
Lovetedt: Thats not the intent sss «
(Emphases added.) Hanchano and Takimoto both testified that they
had consistently informed Paul that it was necessary to enter the
vehicle, look under the hood, and, with respect to some
components such as brakes, to perform more than purely visual
inspections in order to certify @ vehicle properly. Takimoto
recalled that, when Paul's license to inspect had first been
suspended in June 2001, “it was the same type of . . . cursory
checks, . . . the basic operation of Lights, turn signals, brake
Lights and whatnot, no test-drive, no getting into the vehicle,
checking under the hood or under the vehicle for suspension
7
‘#4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
checks, that resulted in (her) suspension.” Paul responded that,
Previous to the issuance of the challenged revocation in
Septenber 2002, she had never been informed by DOT personnel that
a test-drive was required and that she believed that she was
complying with the safety inspector requirements, asserting that
she was aware she was being videotaped but nevertheless did not
change her procedure in the belief that it was sufficient. she
testified that, to her knowledge, no inspection stations test-
drove cars and that she believed Takimoto, upon assuming
Hanohano's duties, had changed the inapection standards and had
singled her out for enforcenent.
Takimoto conceded that, in the approximately twenty
instances that he submitted his own vehicle for inspection, no
inspector had ever test-driven it. He also conceded that he had,
in the past, issued violations to Paul for infractions that,
after further research (often at Paul’s instigation), were found
to be groundiess or had resulted fron conflicting advice to Paul
from other DOT employees. He further conceded that he had been
informed of other inspection stations that did not test-drive
vehicles and that he had not investigated any of those reports.
On May 5, 2004, the AKO submitted his recommended
decision and order (RDO) to the director of the DOT. The AHO
found that Paul had failed to perform vehicle inspections
pursuant to requirements set forth in HAR chs. 19-133.2,
‘44+ FOR PUBLICATION IN WEST’S HAWAI'E REPORTS AND PACIFIC REPORTER ***
19-133.5,° and HRS ch. 286, Part IT. The AHO concluded that, in
order to conduct a proper inspection, it was “necessary to enter
the vehicle and look underneath the vehicle (steering and
suspension), test-driv[e the] vehicle (brakes), (and) look(]
He found, based on the
under the hood (intake and fuel system).
videotape evidence, that Paul had failed to perform these tasks
during eighteen vehicle inspections, resulting in a total of
seventy-five infractions of the inspection rules. The AHO added
that “[w]hat is more troubling is the fact that on every car
which [Paul] inspected she had neglected to comply with
requirements which are the most important in determining how road
safe the cars were. . . . This, of course, defeats the whole
objective of the inspection program.” The AHO then concluded
that Paul “failed to establish by a preponderance of the evidence
+ WAR $ 19-133.5, entitled “Suspension or Revocation of an official
Inspection Station or Inspector's Certification,” sets forth the DOT's
regulations and procedures for revoking certification of inspectors and
inspection stations. Atailable at http://wew.state.nivus/dct/highways/
adeinrvies/133.5.pa
Spgs ch. 286 ie entitied “Highway Safety": part II concerns the
Anspection of vehicles. HRS 206-21 (1993), entitled "{vJehicles wehout
required equipnent or in unsafe condition,” is cited by the DOT for the
Tegialature’ s stated purpose behind « responsibly run vehicle inspection
pregrs
No person shall drive or cause to move on any highway any motor
vehicle, trailer, semitratler, or pole trailer, or any conbinaion
thereof, unless the equipsent thereon is in good working order and
adjustment as requires in this pare
ether occupant of anv person upon the bichway.
(Wnderscored portion quoted by the DOT.)
8
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
that the (DOT) did not present sufficient proof to establish the
violations alleged.”” The AHO then noted that
[t}he foregoing conclusion is further strengthened by
the record that reflects that (Paul]’s License had
been previously suspended for a period of ninety da
This notice of suspension (dated June 26, 2001) wae
for violations whieh mirror these found in the present
Proceeding: failure to test drive the vehicle,
failure to enter or check under the vehicle and
failure to check under the hood to conduct
inspections. Therefore, for [Paul] to now claim she
was unaware of these requirenents has to be regarded
as disingenuous.
‘The AHO affirmed the Septenber 23, 2002 revocation.
On May 18, 2004, Paul submitted written exceptions and
arguments opposing the AHO’s RDO but, on June 15, 2004, the
director concluded “that the exceptions and argunent do not
warrant the denial, modification, or reversal of the hearing
officer's (R00]” and adopted the AHO’s RDO as his final decision
and order (£00).
5. The Circuit Court Appea
on July 8, 2004, Paul filed a notice of appeal in the
third circust court, arguing, inter alia, that the director erred
(2) Rute 40
authorized purely visual inspections based upon the general,
in revoking her inspection license becau:
overall appearance of a vehicle; and (2) that the rules were “so
vague and indefinite as to allow arbitrary and discriminatory
enforcement.” Paul also reiterated her arguments that she had
been improperly singled out for enforcement, contending that she
The hearing was conducted pursuant to HRS § 91-10 (Supp. 2003),
whieh provides in relevant part that "(e]xcept ae othercise provided by lem,
the party initiating the proceeding shall have the burden of proof, including
the burden of produsing evidence as well as the burden cf persuesion. The
degree or quantum of proof shall be a preponderance of the evidence.”
10
++ FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***
conducted inspections in reliance on what she alleged was
accepted practice under previous inspectors and that, in the case
of uncertainty, had consistently sought guidance from the DoT.
She alleged that Takimoto dealt unfairly with her and engaged in
discriminatory enforcement against her. (Citing State vw.
Villeza, 85 Hawai'i 258, 942 P.2d 522 (1997); Eilipo v. Chang, 62
Haw. 626, 618 P.2d 295 (1980).)
‘The DOT maintained that the rules were not void for
vagueness but, rather, (1) characterized HAR §§ 19-133.2-28
through -38 as specific rules and Rule 40 as a general rule that
could be reasonably interpreted in pari materia (a) to avoid
absurd interpretations and (b) to effectuate the purposes behind
their promulgation, (2) that the agency interpretation should be
given deference, and (3) that reps
1 by implication vas
disfavored. (Citing, inter alia, State v. Batson, 99 Hawai'i
118, 120, 53 P.3d 257, 259 (2002); Maha‘ulepu v. Land Use Comm'n,
71 Haw. 332, 339, 790 P.2d 906, 910 (1990).) It further alleged
that, assuming arguendo that Rule 40 allowed for purely visual
inspection of components, forty of the seventy-five infractions
committed by Paul involved a failure to inspect the component in
question through even a visual inspection, establishing a
sufficient basis for revocation of her inspector's license.
Finally, it argued that, insofar as Paul herself conceded that
she was unaware of Rule 40 prior to October 16, 2003, more than
one year after the DOT initiated the revocation proceedings, she
could not have suffered prejudice to her substantial rights, see
n
‘14 FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *##
HRS § 91-14(g), supra note 3, in relying on any alleged vagueness
in its wording.
On Novenber 22 and 23, 2004, the circuit court
conducted a hearing. Paul argued that, insofar as the cor
promulgated Rule 40 later in time than the specific inspection
procedures, Rule 40 controlled and, hence, that an inspector
could grant a certificate “based upon the general appearance of
the vehicle” without having to test any of the required functions
of the car as described in the inspection procedures. The court
then inguired:
‘The Court: How do you intpect the speedometer... 7
(Paul): One way'to do it would be to drive it. ‘or if the
siuen they made this... But you don't have to do
The ame type Inspection jof an Cider car as] you
would do based upon s vehicle whose geneval eppearance
is okay.
fon't ws nies
spect fleaily refers to ail the prior
seys: Irrespective of these, 2 vehicle may be
certitied based upon a general appearance, and that
nay be perforsed visually.
= This is in reality what people do, this is how
inspections take place. You know, this List of things
under what the brakes, body, of anything =~ none of
"hose ever take place on an inspection. They sust
don’t happen.
a sn all th es,
Son't mene sense, Clean then up
(Emphases added.)
‘The DOT acknowledged “that (Rule 40} is not perfectly
written” but contended (1) that the court owed deference to the
agency's interpretation and (2) that the inspection procedures
Were specific requirements that should take precedence over the
12
‘+ FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *#*
general language of Rule 40. The court observed that the
specific nature of the inspection procedures would appear to
render Rule 40 surplusage, but the DOT maintained that Rule 40
was, in fact, complementary to the inspection procedures,
creating the alternative of a visual inspection in sone
instances:
{oor} “ nent) visually bi
lodkingat it oF vou could have sone Hind of
‘snstruments.
Te Court: That's what [Paul] says... , right? You could look
ae it visually.
wor) Or there could be a requirement of instruments. So 1
would azgve that.
«+s T wish, could have pulled up sone kind of
iegidiativel*] history. But people are gone and
retire here ia the Languege of
the rule,” fing based on the Language of thier
Compared to the specific inspection rules, tha
ay the department has been interpreting it.
Components vou can insnect visually...
‘Eerfomance or function of components, Iike brakes,
visi aot to dria it.
(Emphases added.) The circuit court pursued this line of
reasoning, challenging Paul's assertion that a general visual
inspection could satisfy the detailed requirements of the
Anspection procedures. Speaking specifically of HAR
$ 19-133.2-31,? the eireuit court inquire:
+ “to be precise, the promulgation of the HAR is an executive, not
Legislative, activity. Counsel for the Oo? was, therefore, presumably
referring to possible adsinistrative statenents of purpose cr Working Papers
Fegarding Rule 40.
+ wan § 3)
provides
133.2°31 (1989), entitled “{i)nspection of brakes,”
@
fervice and parking bra)
systems shell be inspected for
(continved
23
‘*** FOR PUBLICATION IN MEST’S HAWAI'E REPORTS AND PACIFIC REPORTER
Te Court: . . . How can you physteally inspect?
Paragraph B-3:/ The steering wheel moves abruptly to
eft or right of center when the brake is applied at ¢
to @ miles per hour on 2 clean, smooth, ayn] hard
surface.
ah Ye en een! ense,
ludae. - . . But everything else .-. Telven the
Griving 4g ¢isual.” Everything is visual. There is no
test thet's not visual. The jerking of the steering
wheel is visual. Everything is visual
‘The Court: How would an inspection take place in this
interpretation?
Soke ‘sehicle Zonetnin
Rons-Gurat your But It’s not driving st
(Emphases added.) Paul contended that the level of detail in the
ipaviy
inspection procedures made it “impossible” for an inspector to
comply fully with all the testing requirenents set forth therein
and that Rule 40 addressed the problem by making the general
appearance of the vehicle as a whole a sufficient basis upon
which to certify it.
"1. seontinued)
performance.
{(B) No certificate of inspection shall be issued 4£ any of the
following occurs:
(2) "The Brake pedal height deci when the pedal is deprei
and Light pulsating pressure is applied to the brake pecel?
(2) Excessive brake pedal travel is required to apply the
brake
(3) The steering wheel moves abruptly to left or right of center
when the brake is applied at four to eight miles per hour on
2 clean, smooth, Level, dry, hard surface,
(4) There is visible indication of hydraulic fluid leakage
around reservoir, cylinders, calipers, backing plates,
tubing, hoses, of connections,
(5) The parking brake, when applied on a level dry surface,
cannot hold the vehicle in place with transaiseion in iow
range and engine RPM increased to double idle REM,
(6) Required clipe, clevis, or cotter pins sxe not properly
led or missing: or
system components rubbing against the body, frane!,]
or suspension systes
4
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on December 14, 2004, the circuit court entered a
minute order granting Paul’s appeal on the sole ground that the
inspection procedures and Rule 40, when read together, were
wyvague and indefinite, and [we]ze therefore unconstitutional
under HRS § 91-14(g) (1)," see supra note 3. It did not, however,
find any of the FDO's findings of fact [FOFs] to be clearly
erroneous but, rather, stated that “[w]ith the exception of the
foregoing error, the Administrative Decision entered in the
proceedings below does not contain any error that would warrant
reversal or modification under § 91-14(g), HRS.” On March 17,
2005, the circuit court entered a judgment on appeal in Paul's
favor and against the DOT. On April 13, 2005, the DoT filed a
timely notice of appeal.
IT. STANDARDS OF REVIEW
a. wiew 0 so)
Review of a decision made by the
circuit court upon sts review of an
Sgency's decision se. secondary sppest
the standard of review is one in mich
this court mist detersine whether the
Elreule: court was Fight or wrong dn its
See upping the standaras sot forth
Seine’ §’sizieg) to the agency's
This court's zeview is further
by the principle that the
Sjency's dediston carries a presumption of
Salleity and appellant hee the heavy
Turden Sf making & convincing showing that
the Gecision ia savalsd because St 15
jonabie in ita
consequences:
v, state Auto. Ins.) 61 Nawat't 302,
508, 916 P.24 1203, 1205 (1996) (quoting
Se een Reea 79 Hawai'i 134,
187, 900 P.2a 161, 164 (1885) HAS § S1-14(g)
provides:
as
‘*# FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *#*
Upon review of the record the court
nay affirm the decision of the agency or
Fenand the case with instructions for
further proceedings; or it may reverse or
modify the decision and order if the
Substantial rights of the petitioners may
have been prejudiced because the
Administrative findings, conclusions,
Secisions, or orders art
(2) in violation of constitutional or
statutory provisions; or
(2) tn excess of the statutory authority
Of jurisdiction of the agency! oF
(3) ‘Mage upen unlawful procedure; or
(a) Affected by other error of Laws oF
(5) Clearly erroneous in view of the
Eeliable, probative, and substantial
evidence’ on the whole record; or
(6) Arbitrary, oF capricious, of
characterized’ by abuse of discretion or
clearly unwarranted exercise of
Siseretion”
RS § 91-14(g) (1993). “Under BRS $ 91-1419),
conclusions Of law are reviewable under subsections
(2), (2), and (4); questions regarding procedural
defects ire reviewable under sussection (3)? [FOFs)
are reviewsble under subsection (8)? and an agency's
Guercise of discretion 18 reviewable under subsection
(eh. Beaaa, 81 Hawai'i at 308, 916 Bead at 12%
Konno v. County of Hawai'i, 85 Hawai'i 61, 77, 937 P.2d 397, 413
(2997), quoted in In_re Water Use Permit Applications, 94 Hawai'i
97, 118-19, 9 P.3d 409, 430-32 (2000).
B. Conclusions of Law (cous)
%*% COL Le not binding upon an
appellate court and is freely reviewable
for ite correctness.’” AiG Hawaii Ine.
ate ot td aw. G20,
2d 321, 326 (1993) (quoting
fou, 7 How. 85, 118, B38 F.20 10, 26
(2992)). This court ordinarily reviews
Cols under ‘the right/wrong standard. In.
reEstate of folt, 78 faws 226,232) €7
PiZd 138s; 1388 (1993). Thus, **{a) COL
that is supported by the trial court's
[F0Fs} and that reflects an application of
the correct rule of law will not be
overturned.’" Eatate of Caraang, 74 Haw.
fr 628-25, 651 Pad at 28 (quoting Bates
28, 251
16
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Lietat
74 Maw, at 219, 639 P.2¢ at 29)
‘2 COL that presente mixea
questions of fact and law 18 reviewed
Under the clearly erroneous standard
because the court's conclsions are
Gependent upon the facts and circumstances
fof each individual case.” Id, at 629, 851
F.2d at 326 (quoting antac, Inc, 74 haw,
a0 119, 639 P.2a at. 28) (anternal
quotation marks omitted) .
+ 76 Hawas"t 172, [180], 673 P24 $1, 159)
(ass.
, 105 Hawai'i 445, 453, 99 P.3d 96, 104
(2004) (some brackets and internal citations omitted and some
bracketed material altered.)
ce.
Interpretation Of Statutes
The interpretation of a statute is a question of law
reviewable de novo, State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d
843, 852 (1996).
Furthermore, our statutory construction 1s guided by
established rules:
en construing a statut
Sbligation ie to ascertain snd give effect
fo the intention of the legislature, which
is to be obtained primarily from the
Language contained in the statuce itself.
And we must read statutory Language in the
Contest of the entire statute and construe
Se"in'e manner consistent with its
porposes ss
our foremost
Grav (v, Admin, Dix, of the Court, 8¢ Hawai'i 1238, )
148, 931 P.2a (580,] 580 [(1997)] (footnote omitted) .
State v, Koch, 107 Hawai'i 215, 220, 112 P.3d 69, 74 (2005)
(quoting State v. Kaua, 102 Hawai'i 1, 7-8, 72 P.3d 473, 479-80
(2003).
Furthermore,
[Jn construing an sdninistrative rule, general rules
of statutory construction are applicable.
Suu, 69 Haw. 363, . . «358, 742 F.2d 359, 366
(2587). When @ rule does not conflict with statutory
ang constitutional requirements, courts will ascertain
uv
‘*## FOR PUBLICATION IN MEST’ HAWAI'I REPORTS AND PACIFIC REPORTER ##¢
and effectuate the intent of the agency which
promulgated the rile. Lif es
1 €3 Maw, 329, $31, 631 P.24 568, 590
(2301); Mahal, 69 kaw. at 350, 742 P.20 at 366.
“courts strive to give seaning to all parts of an
adinistrative rule ond to aveid construing any part
as superfluous. i
Fee Howat ian, y @8 aw. 316, 305, 713 FZ
545, 351 (i986). courts
manner which produces an absurd ¥
Mow. at" 358, 142 P.2d at 367.
Williams v, Hawaii Med. Serv. Ass'n, 71 Haw. 545, 549-50, 798
P.2d 442, 445 (1990). Moreover, “*[a statute or ordinance] will
not be held unconstitutional by reason of uncertainty if any
sensible construction embracing the legislative purpose may be
given it. Mere difficulty in ascertaining its meaning, or the
fact that it is susceptible to interpretation will not render it
nugatory.’" State v, Kamal, 88 Hawai'i 292, 294, 966 P.2d 604,
606 (1998) (quoting State v. Taylor, 49 Haw. 624, 635, 425 P.2d
1014, 1021 (1967)) (brackets in original).
TIT. DISCUSSION
A. The Rarties’ Arguments
1. The por
‘The DOT contends that the circuit court erred by
reading the inspection procedures and Rule 40 in conflict,
thereby concluding that they were vague and indefinite, rather
than harmonizing them to give effect to all and furthering the
legislative purpose of pronoting highway safety. (Citing Gardens
at West Maui Vacation Club v. County of Maui, 90 Hawai'i 334,
343, 978 P.2d 772, 781 (1999); Exxon Corp, v. Bushee, 644 F.2d
1030, 1034 (Sth Cir. 1981).) It points out that, while Paul
18
444 FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *#*
asserts, as an example, that Rule 40 authorized purely visual
inspection of the brake components, she herself concedes that
physical test is necessary to assess the integrity of a vehicle's
brakes and argues that the language of Rule 40 authorized
certification based upon a visual inspection of individual
components, if practical, but not upon a mere cursory visual
inspection of the overall vehicle.
‘The DOT also contends that Paul could not have suffered
prejudice to her substantial rights -- within the meaning of HRS
§ 91-14(g), see supra section II.A - from any alleged vagueness
introduced by Rule 40 because (1) she conceded in testimony she
was unaware of the provisions of Rule 40 until more than a year
after her inspection license vas revoked and (2) assuming
arauendo that Paul relied upon Rule 40, insofar as forty of the
seventy-five infractions upon which her revocation was based
involved failures to inspect components even visually -- as
prescribed by Rule 40 -- the record contained sufficient evidence
to support revocation of her inspection license. (Citing, int
alia, Mabiai, 69 Hawai'i at 359, 742 P.2d at 367.)
2. Baul
Paul ar: he pena!
est for vagueness
Paul asserts that her inspector’s license should be
considered a due process interest “in property and [an] ability
to work,” revocation of which requires this court to apply the
more stringent penal standard for vagueness. (Citing, inter
alia, Giscco v. Pennsvivania, 382 U.S. 399 (1966); Kemals State
19
‘#4 FOR PUBLICATION IN MEST’ S MAWAI'T REPORTS AND PACIFIC REPORTER +*
Ye Gaylord, 78 Haw. 127, 890 P.2d 1167 (1995); State v. Lee, 75
Haw. 80, 656 P.2d 1246 (1993); Kernan v. Tanaka, 75 Haw. 1,
21-22, 856 P.2d 1207, 1218 (1993); State v. Kameenui, 69 Haw.
620, 753 P.2d 1250 (1986); Maeda v. Ameniva, 60 Haw, 662, 669,
$94 P.2d 136, 141 (1979); State v, Manzo, 58 Haw. 440, 573 P.2d
945 (1977).) (Quoting State v. Grahovac, 52 Haw. 527, 534-35, 480
P.2d 148, 153 (1971) ("It is fundamental that a penal statute
clearly define proscribed behavior, for failing this,
definitional uncertainty denies an accused ‘due process of law’
guaranteed by the 14th Anendnent to the Federal Constitution and
Art (icle] I, s{ection) 2 of the Constitution of Hawasi.”).) She
contends that the penal standard should apply because the term
“penal” “pertains to any punishment or penalty and relates to
acts which are not necessarily delineated as criminal.” (Citing
HRS § 701-107 (concerning grades and classes of offenses); state
¥.Sincona, 10 Haw. App. 220, 231, 864 P.2d 1109, 1115 (1993),
overruled on other grounds by State v. Ford, 84 Hawai'i 65, 929
P.2d 78 (1996); Black's Law Dictionary 1132 (6th ed. 1990).)
b. Paul ma: sth vaguen the
tules_allows arbitrary and inconsistent
enforcement that violates her richts to due
process.
Paul reiterates her argument that Takimoto selectively
enforced the inspection requirements against her. She catalogues
2 list of alleged infractions for which Takimoto had issued her
citations but which the DOT ultimately determined were not based
on valid interpretations of the regulations and that were later
20
##* POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER ***
withdrawn.!® She specifically abandons, however, her earlier
argument that Takimoto’s allegedly arbitrary, selective
enforcement alone should nullify the revocation of her license
and instead insists that she now raises the issue of allegedly
selective enforcement only to demonstrate the constitutionally
unsound nature of the regulations, in that they are so vague and
standardiess as to allow “arbitrary and discriminatory
enforcement and the delegation of basic policy matters to persons
for resolution on an ad hoc and subjective basis.” (Citing Lee,
75 Haw. at 93, 856 P.2d at 1254 (1993).)
B.
T9-133.2- ugh 36 40, thi
Together, Were Void For Vaqueness.
As a preliminary matter, we note that Paul fails to
identify the point in the agency hearings or in the circuit court
at which she argued that the criminal rather than civil standard
for vagueness should apply to the inspection procedures and
Rule 40, It ig well settled that appellate courts
will not consider an issue not raised below unless
deuates Encl, Se Haw. 406, UG, S40 Pea 970, 98
(i275); Hany. Yang €4 Hawai'i 162, 176-77, 931 P.2d
60, 618619 (App. 1997). In determining whether to
paul also requests that this court take judicial notice, pursuant
to Hawai'i Rules of Evidence (HRE) Rule 201, that “prior to... Takimeto
[esuing . Paul a citation... (,] inspectors in the State of Hawaii were
hot test driving a persons’ [aici] vehicle during inspections.” HRE Rule
Boltb) requires that “(al judicially noticed fact must be one not subject to
Featonable dispute in that it ie eieher (1) generally known within the
Eerritorie: jurisdiction of the... court, of (2) capable of accurate and
Feady cetermination by resort to sources whose accuracy cannot reasonably be
Guesvioned." As it 1s abundantly clear that the accuracy of the “fact” at
issue
, procedures generally followed statewide by motor vehicle safety
‘neither "generally known” nor “capable of accurate and ready
determination,” we decline Paul's request.
2
‘** FOR PUBLICATION IN WEST’S EAWAI'E REPORTS AND PACIFIC REFORTER +#*
address ¢ new issue raised on appeal, this court must
Gecide “*whether consigeration ef the issue requires
additional facts; whether the resolution of the
gueation will affect the integrity of the findings of
fact of the trial court; and whether the question is
of great public inportance.’* Jorgensen Co., 56 law.
at 476, 540 P26 at 985 (quoting Fulioks ¥. kam, 5S
Haw. 7, 9, S14 P.2a 568, $70 (1973) +”
Hil1_v.Inouve, 90 Hawai'i 76, 82, 976 P.2d 390, 396 (1998)
(quoting State Farm Mut, Auto, Ins, Co, v, Dacanay, 87 Hawai'i
136, 145 n.14, 952 P.2d 893, 902 n.24 (App. 1998).
Paul's argunent for a heightened standard of scrutiny
does not necessitate any additional fact-finding on this court's
Part, and our resolution of it will not “affect the integrity of
the findings of fact of the [circuit] court,” id. But neither is
the question of great public import, insofar as Rule 40 has been
repealed and Paul's point of error on appeal is unlikely to arise
again. We would, therefore, be justified in deeming the argument
waived. Nevertheless, assuming arauendo that Paul properly
Preserved the argument, it fails on ite merits.
1 revocation o! tsi or" nse ¥,
sivil, rather than criminal, in nature.
HAR chs. 19-133.2 and -133.5 do not contain an express
statement that the regulations should be considered civil rather
than criminal or penal in nature. See HAR chs. 19-133.2 and
-133.5, passim. However, this court, in State v, Guidry, 105
Hawai'i 222, 96 P.36 242 (2004), adopted a seven-factor test to
determine whether @ statute or regulation was criminal or civil
in nature for purposes of constitutional review:
“*CG)) (wlhether the sanction involves an affirmative
disability or restraint; [(2)] whether it hes
historically been regarded a2 punishments ((3))
22
‘44+ FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *#*
whether it comes into play only on a finding of
Scienter; ((4}} whether its operation will promote the
Ereaitional aine of puntahnent-retribution and
Geterrence; [(5)] whether the behavior to which: it
applies ie already # crime; [(6)] whether an
alternative purpose to which it may rationally be
Connected is assignable for it; and {(7)) whether it
appears excessive in relation to the alternative
purpose assigned are all relevant to the inguiry, and
Ray often point in different directions.’”
Id, at 235-36, 96 P.3d at 255-56 (brackets in Guidry) (quoting
Russell v, Gregoire, 124 F.3d 1079, 1084 (9th. Cir. 1997)
(quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69
(1963))); see also Tauese v. State, 113 Hawai'i 1, 31-33, 147
P.3d 785, 815-17 (2006) (quoting Mendoza-Martinez). Analyzing
the revocation of Paul's inspector's license in light of the
Guidry factors demonstrates that the sanction is civil in nature.
Revocation of an inspector’s license does not involve
an affirmative disability or restraint but, rather, merely
represents the withdrawal of the state’s permission, granted
previously, to implement a program on behalf of the state and to
collect a fee from the citizenry for doing so. In contrast to
the license revocation in question, the cases that Paul cites in
support of applying the penal standard for vagueness involved
statutes that carried the possibility of imprisonment upon
conviction or implicated the right to free speech. See Kamal
(wherein the defendant was convicted of peddling in a proscribed
area, in violation of Revised Ordinances of the City and County
of Honolulu § 29-6.2, which at the time carried a penalty of up
to $1000.00 in fines and a one-year term of imprisonment);
Gaylord (theft by failure to make a required disposition of
funds, in violation of HRS § 708-830(6) (a), is, at a minimum, a
23
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misdemeanor carrying the possibility of imprisonment); Lee (a
violation of HRS § 329-43.5 (Supp. 1992) (prohibited acts related
Kameenui (a
violation of HRS § 703-906 (Supp. 1986), abuse of a family
to drug paraphernalia) was a class C felony);
member, carried a minimum term of imprisonment of forty-eight
hours); Manzo (a violation of HRS § 712-1214 (1976), promoting
pornography, was a misdeeanor and implicated free speech
concerns) «
Nevertheless, the Intermediate Court of Appeals (ICA)
has concluded in at least one instance that a statute may be
penal in nature despite the fact that it does not carry the
threat of imprisonment or implicate free speech. In Simeona, the
defendant purposefully placed his boat in a DOT dry-storage area
without proper authorization, hoping to provoke a citation in
order to establish in court that the land upon which the storage
area was located was, in fact, owned by his family and not the
state. 10 Haw. App. at 223-27, 864 P.2d at 1111-13. Simeona
requested a jury trial, based on the fact that a violation of HRS
§ 226-25 (Supp. 1992) carried the possibility of @ maximum fine
ef $10,000.00 for each violation, but the circuit court denied
his request. Id, at 225, 864 P.2d at 1112.
The ICA, in answering the question whether the circuit
court improperly denied Sineona his right to a jury trial,
applied a two-pronged test borrowed from United States v. Mard,
448 U.S. 242 (1980), to determine whether the penalty was
24
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criminal or civil. 10 Haw. App. at 230, 864 P.2d at 1114, The
ICA implicitly recognized that HRS § 266-25 characterized any
failure to comply with DOT harbor regulations as a “violation, *
which, as defined in HRS § 701-107(5) (1985), was non-criminal in
nature. 10 Haw. App. at 231, 864 P.2d at 1115. Nevertheless,
it concluded that the legislature intended that the penalties in
question be considered penal in character. Id. The ICA grounded
its conclusion (1) in the language of HRS § 832-3.1(b)(3) (Supp.
1992) (pertaining to criminal records for prior convictions) that
ecognized “tpenal offense[s]’ for which no jail sentence may be
imposed” but which, nonethel:
) generated a criminal record, (2)
in the fact that the legislature did not describe the penalties
in HRS § 226-25 as civil penalties, and (3) in the language of
HRS § 266-24 (Supp. 1992), which vested law enforcement powers in
Dot employees to enforce the rules set forth in HRS § 226-25,
© In Bard, the United states Supreme Court ingsired, first, whether
Congress intended that the penalty be civil or criminal in nature, andy
Second, if Congres® indicated en intention that the penalty be civil in
Rsture, whether the penalty was so punitive either in purpose or effect as to
egate that intention, 440 U.S. at 248-49. The Court warned, however, that
WNGnly the clearest. proof could’ suffice to establish the unconstitutionality
ofa statute on suchs ground.’ id, at 249 (quoting Elamming v, Nestor, 3€3
O.s. 603, 617 (29601), quoted in Simeone, 10 Haw. App. at 250, 664 P20 ot
Lilds “see alao Tavese, 113 fawai'i at 31, 147 Pad at 15-16 (quoting Hard)
HRS § 226-25 provided in relevant part that “any vessel,
lor) ower . 1 + which violate(s] the rules of the departnent or this
Chapter!) shai2'be fined not more than $10,000(-00) for sash
vislation - . . .” (Esphasis added.
© The TCA noted that the conmentary to HRS § 701-107(5) states that
“{s]ubsection (5) erestes @ clase of pon-criminsl offenses, called violations.
No imprisonment may follow conviction of a violation, nor nay any civl
Gisabilities be imposed.” 10 Haw. App. at 231, 864 P.2¢ at 1115 (emphasis
‘dged) -
25
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including the powers of executing warrants and arresting
offenders. Id, at 231-32, 864 P.2d at 1115.
In the present matter, the HAR provisions pursuant to
which Paul’s inspection license was revoked do not involve fines
of any sort. See HAR § 19-133.5, available at http://
state.hi.us/dot /highways/adminrules/133.5.pdf. Therefore, by the
plain language of HRS § 701-107(5) (1993), they do not qualify
as penal measures under the HRS -- not even as violations, the
lowest level of infraction that itself does not constitute a
crime =~ and the DOT's revocation of Paul’s inspector's licens
does not, therefore, generate a criminal record to which HRS
ch. @31 would apply. Moreover, ve are unaware of any powers
vested in the DOT officials overseeing the vehicle inspection
program to serve and execute warrants or arrest “offenders.”
Rather, as the United States Supreme Court noted in
Hudson v. United States, $22 U.S. 93 (1997), in considering a
defendant’ debarment from the banking industry, it has been
“long recognized that ‘revocation of a privilege voluntarily
granted,’ such as debarment, ‘is characteristically free of the
SM uRS § 701-107(5) provides
An offense defined by this Code or by any other statute of
this state constitutes a violation if it if so designated in this
Code or in the law defining the offense or if no other sentence.
‘authorizes Gben conviction or if it i defined by a statute other
than this Cove which provides that the offense shell not
constitute @ crime. g violation dose not constituce g crime, and
conviction of a violation shail not give rise to any civil
Gisability based on conviction of 8 criminal offense.
([Eephases added.)
26
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punitive criminal element.‘ Id. at 104 (quoting Helvering v.
Mitchell, 303 U.S. 391, 399 @ n.2 (1938). Barring an individual
from operating in an industry “dofes] not involve an ‘affirmative
disability or restraint,’ as that term is normally understood”
and “is ‘certainly nothing approaching the “infamous punishment”
of imprisonment.’” Id. (quoting Flemming v. Nestor, 363 U.S.
603, 617 (1960)).
Nor does consideration of any of the other Guidry
factors lead to the conclusion that the penal standard for
vagueness should apply in the present matter. A violation of the
required inspection procedures does not, by the plain language of
the inspection procedures and Rule 40, entail a finding of any
requisite state of mind, see HAR § 19-133.5, passim. We are
unaware of any indication that the conduct at issue is already
considered “criminal” elsewhere in the state's statutes and
regulations. While it is arguable that a component of the
purpose underlying the revocation procedures is deterrence, they
also serve to enforce the inspection procedures, which in turn
were promulgated to achieve the stated legislative objective of
ensuring that vehicles on the state’s highways are “in good
working order and adjustment . . . so as not to endanger the
driver or other occupant or any person upon the highway,” HRS
§ 286-21, see supra note 6. The DOT’s revocation of a license to
inspect in response to a failure to inspect a vehicle with
sufficient diligence to ensure that it does not endanger its
occupants or others cannot be said to be ‘excessive in relation
2
FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER +++
to the . . . purpose,’” Guidry, 105 Hawai'i at 236, 96 P.3d at
256 (quoting Russell, 124 F.3d at 1084).
‘Therefore, we hold that the inspection procedures and
Rule 40 must be reviewed under the civil test for vagueness
at 343, 978 P.26
2 12 ins: 1. Bu ns
uy rat
Neither party challenges the circuit court's COL that
the inspection procedures, “in and of themselves, are not vague
and indefinite.” Rather, the present dispute centers upon
whether the presence of Rule 40 rendered the procedures
unconstitutionally vague and standardless.
vwhen a statute is not concerned with criminal
conduct oF first anenduent considerations, the court
must be feirly lenient in evaluating a ciais of
vagueness.” Dos v. Staples, 706 F.2d 985, 988 (sth
Cir." 1983) (citing Buon Corp, v, Busbee, 644 F.2d
1030 (Sth cir. 1961)... }. Ag the Unites stoi
Court of Appeals for the Sixth Circuit explained,
(t)o constitute « deprivation of due
process, [the civil statute) must be “so
‘Yaque afd indefinite at really to be. no
role of standard at ail."
Go. 8. ba. Su yy 267
(2537, B39"... 11925), To paraphrase,
uncertainty ia this statute ds net enosgh
for it to Be unconstitutionally vague
rather, it must be substantially
incomprehensible, 684 F.2d at 1033,
Id. (sone citations and brackets omitted) (some
breckets added). Seu algo Sutherland,
Sonstiucticn § 21.16 (Stn ea.) ("Where economic or
Consercial interests are involved, a lesser standaré
is utilizes for determining vagueness.) {Citation
omitted.1/ cf. In re Wall, 295 N.W.2a 455, ¢57 (Towa
1960) (tne Segeee of specificity constitutionally
required of non-criningl statutes will vary, depending
fon “the various interests affected, the purpose’
Underlying the enactment in question anc the potential
28
+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
deprivation which could result from its
application".
Gardens at West Maui, 90 Hawai'i at 343, 978 P.2d at 781, quoted
in Ince Carlemith, 113 Hawai'i 236, 245, 151 P.3d 717, 726
(2007). And, as noted, “the Administrative Procedures
Act . . . precludes judicial reversal or modification of an
administrative decision even where affected by error of law...
unless substantial rights of the petitioner may have been
prejudiced.” Survivors of Medeiros v, Maui Land 6 Pineapple Co.,
66 Haw. 290, 293, 660 P.2d 1316, 1319 (1983); see also Paul's
Elec. Serv., Inc. v. Befitel, 104 Hawai'i 412, 421 n.11, 91 P.3d
494, $03 n.11 (2004) (noting the same).
In order to harmonize Rule 40 with the plain language
of the inspection procedures and to uphold their overall purpose
of Smproving highway safety," the DoT concluded that visual
inspections of individual components could be substituted for
diagnostic testing where applicable and that a vehicle could be
certified upon the general appearance of those components taken
in tote. If all components appeared physically sound or
functioned properly after physical testing (if such testing were
logically required by the nature of the component, e.a., in the
case of the horn or brakes) the inspector could issue a safety
certificate to that vehicle. ‘Therefore, an inspector, at a
minimum, would be required to inspect visually, inter alia, the
\ paul does not contest the fact that the purpose of the vehicle
safety inspection program is to ensure that the moter vehicles on the state's
highways afe "in good working order and adjustrent so as not to endanger
the driver or other occupant or any person upon the highway." See HRS
$ 206-21, supra note 6.
29
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ++
fuel intake system, the exhaust system, the undercarriage of the
vehicle, and various components such as the driver’s door window
lever or switch to ensure that no clear damage threatened the
safe operation of the component and, subsequently, of the
vehicle, As Lovstedt noted, to adopt Paul’s interpretation would
have rendered the entirety of the inspection procedures a
nullity." Such a result would clearly conflict with the purpose
of enacting the inspection program in the first instance and
would adversely affect the safety interests of the motoring
Public. Rather, the DOT interpreted the specific requirements of
the inspection procedures with the general wording of Rule 40 in
such a way as to preserve the integrity of the program and
further its purpose.
We therefore hold that the DO?’s harmonization of the
inspection procedures with Rule 40 achieved the underlying
Purpose of the motor vehicle inspection program and was not so
vague as to “tbe substantially inconprehensible’” or “‘so vague
and indefinite as really to be no rule or standard at all.”
Gardens at West Maui, 90 Hawai'i at 343, 978 P.2d at 781 (quoting
Staples, 706 F.2d at 988 (quoting A.B, Small, Co., 267 U.S. at
239).
In any event, Paul fails to establish any prejudice to
her substantial rights as required by HRS § 91-14(g), see
emphasized language supra note 3; see also discussion supra this
* paul cont
speedometer can bee
Fonctsening
the brakes and the
[Sual neans to ensure that they are
that such an interpretation mocks
‘she tests the brakes, st least mininally,
by entering the car and depressing the pedal
30
‘444 FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *#*
section. Any contention by Paul that the relevant provisions
were unconstitutionally vague on their face and that she was
misled by a personal perusal of the inspection procedures and
Rule 40 is belied by her concession that she was unaware of
Rule 40 until after her inspection license vas revoked and she
sought the advice of counsel. As for Paul's claim that the DOT's
interpretation of the rules was vague and standardiess when
applied to her, the DOT regulators testified that they informed
Paul of the practical requirenents of their interpretation of the
relevant HAR sections and the actions expected of her when
conducting a vehicle inspection, including, at a minimum, the
requirement that a visual inspection be conducted of individual
components such as the fuel intake system and the suspension.
Hanohano and Takimoto both testified that they had repeatedly
informed Paul that it was necessary to inspect visually the
conponents of a vehicle by entering the interior, raising the
hood, and inspecting the undercarriage. Moreover, Takinoto
testified that the DOT suspended Paul's license to inspect in
June 2001, approximately a year before the present: revocation,
for “the same type of . . . cursory checks, . . . no getting into
the vehicle, (no] checking under the hood or under the vehicle
for suspension checks.” Moreover, in neither the circuit court
nor the present appeal did Favl challenge the director’s FOF that
she had been apprised of the necessity of performing such checks.
Nor does she contest the fact that, of the seventy-five
infractions found by the director, forty did not involve a
failure to conduct physical tests but, rather, a failure to
zn
FOR PUBLICATION IN MEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER **#
conduct @ purely visual inspection of the particular component in
question.
In light of the foregoing, we conclude that the DOT's
decision was not “‘unjust and unreasonable in its consequences,”
Konne, 65 Hawai'i at 77, 937 P.2d at 413 (quoting Bragg, 81
Hawai'i at 304, 916 P.2d at 1205), but, rather, was supported by
evidence in the record and based upon a valid interpretation of
the rules as applied to Paul’s conduct.
Iv. CONCLUSION
We therefore vacate the March 18, 2005 judgment on
appeal of the circuit court and remand for proceedings consistent
Gow
on the briefs: ‘
Christopher J. Roehrig of
Roehrig, Roehrig, & Wilson Rrcssese Oraedeeyorm
for the’ respondent-appel lant-appellee
santo Baul
Deputy Attorney General « ne
for the appellee-appel lant Cam €: toy
Department of Transportation,
State of Hawai'i
with this opinion.
32
|
aeb33660-6cc5-48c4-8a3b-d0a34d15a69e | Office of Disciplinary Counsel v. LePage | hawaii | Hawaii Supreme Court | No. 24616
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
THOUS R. LEPAGE, Respondent. :
el
“ 2
(ORIGINAL PROCEEDING)
(ove 00-265-6611, 00-26-6612, 01-136-6880)
(By: Moon, C.J., Levinson, and Nakayama, JJ., Intermediate Court
of Appeals Judge Watanabe, in place of Acoba, J., who is
unavailable, and Circuit Judge Chang, assigned by ‘reason of
vacancy)
Upon consideration of the Disciplinary Board's Report
and Recommendation for the Suspension of Thomas R. LePage, the
exhibits thereto, the record, and Respondent LePage’s lack of
it appears Respondent LePage committed
1.40),
objection thereto,
multiple violations of Rules 1.1, 1.2, 1.3, 1.4(a),
2.2548) (1), 2.18(b), 1.25(e), 1.18(8), 2.25(E) (3), 1-15(£) (4),
2.1549), 2.26(a) (2), 1.16(d), 3.2, 3.4(€), 5.4(a), 5.5(a),
8.1(b), 8-4(a), 8.4(c), and 8.4(d) of the Hawai" Rules of
Professional Conduct. It further appears that there were
multiple acts of unethical behavior and a pattern of misconduct.
Respondent LePage also has prior discipline involving similar
(a one year and one day suspension in
qe
professional misconduct
2001) and substantial experience in the practice of law.
finally appears that Respondent LePage was suspended from the
practice of law since November 6, 2001 and has not been
Anstated.
In mitigation, Respondent LePage hi
experienced past
suffering, shame, and humiliation by virtue of his imprisonment.
ory
Disciplinary Board v, Beran, 60 Haw. 546, 592 P.2d 814 (1979).
Respondent LePage has expressed extreme remorse, and has
denonstrated candor and a cooperative attitude toward these
proceedings. Respondent LePage also had good character and
reputation prior to his ice addiction, had taken steps toward
rehabilitation, and there has been a lengthy pi
.ge of time
since his misconduct and the completion of this disciplinary
proceeding. However, where “disciplinary violations are severe
land extensive and include misappropriation of clients’ funds,” as
they do here, disbarment is appropriate. See Office of
Disciplinary Counsel v. Silva, 63 Haw. 585, 594-5957 633 P.2d
538, 545 (1981); Office of Disciplinary Counsel v. Lau, 85
Hawai'i 212, 215-216, 941 P.2d 295, 298 (1997). Therefore,
IT IS HEREBY ORDERED that Thomas R. LePage is disbarred
from the practice of law in this jurisdiction. ‘The disbarment is
effective from Novenber 7, 2002 (the date of expiration of the
November 7, 2001 suspension of one year and one day).
TT 1S FURTHER ORDERED that in addition to any other
requirements for reinstatenent imposed by cur Rules, Respondent
LePage shall pay for all costs relating to this proceeding, as
recommended by the Board.
IT IS FINALLY ORDERED that Respondent LePage shall,
within ten (10) days after the date of this order, file with this
court an affidavit in full compliance with RSCH 2.16(d).
DATED: Honolulu, Hawai'i, October 2, 2007.
Pesca la rnmdine Aner
Cuniak Watanebe,
2 Com WB Ke
|
b5cb4dd4-ea7a-4933-8324-ac61a65ece46 | State v. Cruz | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTER *#*
Wo. 27242
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAI'I, Plaintiff-Appellant,
vs.
RUSSELL KELA CRUZ, Defendant-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 04-1-1169)
MEMORANDUM OPINION
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.,
‘and Acoba, J., dissenting)
‘The plaintiff-appellant State of Hawai'i (hereinafter
the prosecution) appeals from the April 11, 2008 judgment and
sentence of the circuit court of the first circuit, the Honorable
Virginia Lea Crandall presiding, convicting the defendant-
appellee Russell Kela Cruz of promoting @ dangerous drug in the
third degree, in violation of Hawai'i Revised Statutes (HRS)
§ 712-1243 (Supp. 2004), see infra note 1, and unlawful use of
drug paraphernalia, in violation of HRS § 329-43.5(a) (1993) and
sentencing him, inter alia, to a five-year term of probation.
on appeal, the prosecution asserts that the circuit
court erred in sentencing Cruz to probation under HRS § 712-1243
(Supp. 2004) rather than @ mandatory minimum term of imprisonment
of thirty days to two-and~
§ 712-1243 (Supp. 2002).
half years, pursuant to HRS
oats
NOP FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER ***
For the reasons discussed infra in section I11, we hold
that the circuit court erred in sentencing Cruz pursuant to the
2004 version of HRS § 712-1243 and, therefore, vacate his
sentence and renané for resentencing pursuant to HRS § 712-1243
(Supp. 2002).
1. BACKGROUND
In connection with events occurring on June 9, 2004,
Cruz was charged on June 16, 2004 by complaint with promoting a
dangerous drug in the third degree, in violation of HRS
§ 712-1243 (Count I), see infra note 1, and with unlawful use of
drug paraphernalia, in violation of HRS § 329-43.5(a) (Count II).
During its 2004 session, the legislature amended HRS
§ 712-1243 through the passage of Act 44, which went into effect
on July 1, 2004. See 2004 Haw. Sess. L. Act 44, $§ 7 and 33 at
211, 227. As part of its amendments, the legislature removed the
provision from HRS § 712-1243 (Supp. 2002) that required a
mandatory minimum sentence of at least thirty days and not more
than two-and:
half years,
turning discretion to the sentencing
court to impose probation.*
‘effective July 3, 1996, the legislature anended HRS § 712-1243 by
‘aeding subsection (3), infra. Sae'1996 Haw. Sess. L. Act 308, $§ 4 and 7 at
521-12." Effective July 1, 2002, the legislature further amended HRS
§ 712-1243 by adding the underscored language, infra
(2). A person conits the offense of promoting = dangerous
drug in the third degree Lf the person knowingly possesses any
dangerous drug in any amount.
(2) Fronoting s dangerous drug in the third degree is 2
class € felony.
(3). Notwithstanding any law to the contrary, except for
Lirstetine offeners sentenced under IHRE $1 J06-62205, if the
Commission of the offense of pronoting a dangerous drug in the
third degree under this section involved the possession oF
(continued...)
‘+4 Nor FOR PUBLICATION IN WEST’S HAWAI'I REFORTS AND PACIFIC REPORTER +4
on Janvary 21, 2005, Cruz filed a motion for a
determination by the cizcuit court that Act 44"s amendments
applied to the proceedings against him. ‘The prosecution filed a
memorandum in opposition, arguing that HRS § 712-1243 (Supp.
2002) =~ in effect at the time of the commission of the offense
and at the time the prosecution filed its complaint against cruz
=~ governed Cruz's proceeding and required that he be sentenced
to a mandatory minimum term of imprisonment of thirty days to
two-and-a-half years.?
\(.. seontinued
distribution of methamphetamine, the person convicted shall be
Sentenced to en indecerminave term of imprisonment of five years
with s mandstery minimum tern of imprisonment, the length of which
Ghali be fot lese than thirty days and not greater than two-and:
f years, at the discretion of the sentencing court. The person
Convicted shall net be eligible for parole during the mandstory
period of inprisonsent
fee 2002 Haw. Sess. L. Act 161, $6 6 and 12 at 875, Effective July 2, 2008,
the legielavare again enendes HRS § 712-1243 by stiiking subsection (3) in its
entirety, returning the law to ite 1999 form. gaa 2004 Maw. Seas. L. Act 4,
fe't'and! 25 at 21], 227. "The legiclature also included 2 savings clause in
Ret (4 that read in Sts entirety: “This Act does not affect rights and duties
Chat matured, penalties that were incurred, and proceedings that were begun,
before its effective date.” See dd § 29 at 227,
+ unlike previous cages before this court concerning Act 44,
Ancluding state v. Beis, No. 27171 (haw. August 21, 2007), and State
Halker, 106 Hawas'l 1, 100 P.3¢ 595 (2008), the present matter does not
Thvelve the question whether the amendments to HRS § 706-6225 (Supp. 2002) -~
provided fervin Act 44, section 1l and allowing probation for first-time drug
Sffenders =~ are applicsble to the defendant. Cruz's eligibility for
prebation as a first-tine drug offender was not at issue in this matter, in
Tight of 2 1988 conviction of promoting a dangerous drug in the third degree,
in'vlolation of SRE § 712-1243" (1965). The present appeal instead focuses on
whether the circuit court, in sentencing Cruz, could spply the amendments to
ARE § 712-1243 (Supp. 2002) provided for in Act 4, section 7, gee supra
Rote 1, which excised subsection (3) and thereby returned discretion to the
Court to impose @ sentence of probation rather than a mandatory minimum term
of imprisonment.
Te is also worth noting that, regardless of the version of HRS
§ 112-1043 applicable to Crus, he could not be sentenced asa repeat offender
Pursuant to HRS § 706-606.5.. ‘The Aet 11 version of HRS § 712-1243 sete forth
S'nandatory minimum tern of thirty days to two-and-achalf years,
(continued...)
3
‘4 NOT FOR PUBLICATION IN WEST'S IAMAI'T REPORTS AND PACIFIC REPORTER #*#
On January 26, 2005, Cruz pled no contest to both
charges. following arguments by the parties on Cruz’s Act 44
motion, the circuit court orally ruled that “{w]ith respect to
sentencing, the court adopts the arguments set forth by the
defense in its memorandum filed January 21, 2005, and the court
finds and concludes that it has the discretion with respect to
this case to sentence the defendant to probation.” The circuit
court then sentenced Cruz to a five-year term of probation,
relying on Act 44"s amendments to HRS § 712-1243, see supra note
1, to do s0.
‘The prosecution filed a timely notice of appeal on
Aprit 20, 2005.
#1. continues)
snotwithstanding any law to the contrary, except for first-time offenders
sentenced under [HRS §]” 706-622.5,” thereby, by its plain language, excluding
application of HRS § 706-606.5. Sea guna note 1. The Act 44 version, by
Fenoving subsection (3) fron HRS § T12-12¢3, reinstates the applicability of
HRS $ 706-€06.5 to Cruz's sentencing: but, insofar as he was previously
convicted of a class c felony in 1980 -~ sixteen years before the present
offense ~~ HRS § 706-606.5(2} (e) (Supp. 1999) exenpted Cruz from repeat
Offender sentencing in 2004 by providing that:
(2) Except as in subsection (3)( pertaining to prior felony
convictions resulting ins specisl term onder HRS § 306-667], 2
Person shail not be sentenced to a mandatory minimun period of
inprisonsent under this section unless the instant felony offense
was committed during such period a8 follows?
le)” Within tive years after 2 prior felony conviction
where the prior felery conviction was for aclase © felony offense
Gnunerated above.
(Emphasis added.)
NOT FOR FUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER +*#
TI. STANDARDS OF REVIEW
A. Sentencing
“the authority of a trial court to select and
determine the severity of a penalty is normally undisturbed on
review in the absence of an apparent abuse of discretion or
unless applicable statutory or constitutional commands have not
been cbserved.’" State v, Aplaca, 96 Hawai'i 17, 22, 25 P.3d
792, 797 (2001) (quoting State v. Jenkins, 93 Hawai'i 87, 100,
997 P.2d 13, 26 (2000).
8 staws
“[t)he interpretation of @ statute
of law reviewable de novo." state
Mawai's 1, 10, 926 P.2d 843, 852 (1996) (citations
onitted).” See alse State v.Tovonura, €0 Hewai't @,
16, 904 P,2¢ 693, 903 (1995); Stabe t. Hsaa, 79
Rewei's 2," , 097 P24 926, 930 (199817 State
Nakata, 76 Hawai'i 360, 365, 878 P.20 693, 70
(os.
Grave! Adtihl.) Dizi.) of the court, 66 Haass 138,
144, 957 P.2d 560, 586 (1997). Furthermore, our
statutory construction is guided by established rules:
Wen construing # statute, our foremost
Sbligation i to ascertain and give effect
to the intention of the legislature, which
to be ebtained prinarily from th
inguage contained in the statute iteeif.
And we must ead statutory language in the
Content of the entire seatute and conetrue
Se'in'a manner consistent with its
parpose.
Gray, 64 Nawat"i at 148, 931 F.2d at 590 (footnote
omitted).
ate v. Kaua, 102 Hawai'i 1, 7-8, 72 P.3d 473, 479-80 (2003)
(some internal citations omitted) (some brackets and ellipses
added and sone in original), quoted in State v. Koch, 107 Hawai"t
215, 220, 112 P.3d 69, 74 (2005). Nonetheless, absent an absurd
or unjust result, see State v. Haugen, 104 Hawai'i 71, 77, 65
5
‘#8 NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER #¢
P.3d 178, 184 (2004), this court is bound to give effect to the
plain meaning of unambiguous statutory language and may only
resort to the use of legislative history when interpreting an
embiguous statute. State v. Valdivia, 95 Hawai'i 465, 472, 24
P.3d 661, 668 (2001). Finally,
Wwe construe penal statutes narrowly, considering
then in the light of precedent, legislative history,
land common sense." [Whatever may be said of the rule
of strict construction, it cannot provide 2 substitute
for common sense, precedent, ond Legislative history.
We cannot construe (a statute. <]- ina vacuum. Nor
Gan we read it as Baron Parke would read a pleading.”
Stare vs Zavlar, 49 Hau. €24, 634, 425 8.20 1034, 021
(367). ana], where possible, we will read a penal
statute... in'such & manner az to preserve its
Const stutsonality,
State v. Kanal, 8€ Hawai'i 292, 294, 966 P.2d 604, 606 (1998)
(some internal quotation marks omitted) (some bracketed material
in original) (some paragraph structure altered).
TIT. DISCUSSION
Cruz's Arounents
1. Cruz alleces that the phrases “proceedinas that
and “i haw
Act 44, section 22 support the prospective
application of Act 44, section 7 to his case.
Cruz argues that the language of Act 44, section 29,
ase supra note 1, is ambiguous, particularly the phrase
dings that were begun.” He insists that “proceedings” may
refer not only to @ criminal prosecution initiated by a charging
instrument, but also “'to a mere procedural step that is part of
@ larger action or special proceeding.’ (Quoting Black's Law
Dictionary 629 (Sth ed. 1983).) He asserts that the alleged
ambiguity of “proceedings” justifies a review of the legislative
6
‘+8 NOT FOR PUBLICATION IH MEST’ HAWAI'T REPORTS AND PACIFIC REPORTER *+*
history, which, he contends, reflects an intent to provide
greater discretion to the lower courts in sentencing decisions.
He essentially argues that the circuit court, by implication,
correctly concluded: (1) that “proceedings” was ambiguous; (2)
that interpreting “proceedings” as including sentencing
proceedings comported with the legislature's intent, reflected in
Act 44, to return greater discretion to the sentencing court; and
(3) that his sentencing proceeding was excluded from Act 44's
savings clause, insofar as it was conducted on April 11, 2005,
nore than nine months after Act 44s effective date, thereby
allowing the court to sentence Cruz to probation.
Cruz also asserts that the phrase “penalties that were
incurred” unambiguously refers to a sentence imposed upon
judgment and that, because his sentence was imposed after July 1,
2004, the circuit court properly applied the amended version of
HRS § 712-1243 (Supp. 2004) to his sentence.
2. Grup argues in the alternative that Act 44 should
apply retroactively,
cruz maintains that even if his sentencing hearing were
part of a unitary criminal prosecution initiated prior to July 1,
2004 ~~ which would require retroactive application of Act 44 for
him to benefit from its amendments -- he challenges this court's
conclusion in State v, Walker, 106 Hawai'i 1, 9, 100 P.3d 595,
603 (2004) that Act 44 does not apply retroactively, arguing that
precedent requires this court to apply ameliorative amendnents
retroactively regardless of the presence or absence of a savings
clause. (Citing Koch; State v. Feliciano, 103 Hawai'i 269, 61
P.3d 1164 (2003); State v, Van den Berg, 101 Hawai'i 167, 65 P.3d
7
++ NoT FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND FACIFIC REPORTER +**
134 (2003); State v. Avilla, 69 Haw. 509, 750 P.2d 78 (1988);
State v. Von Geldern, 64 Haw. 210, 638 P.2d 319 (1981).) Me
disagree. .
B. The Circuit Court Erred In Applying The Provisions of
Act 44, Section 7 To Cruz's Case,
In Walkex, this court concluded that, by the plain
language of Act 44, section 29, the legislature did not intend
the anelicrative provisions of Act 44 to apply retroactively to
proceedings that were begun prior to July 1, 2004. See Walker,
106 Hawai'i at 9, 100 P.3d at 603.
More recently, in State v. Reis, No. 27171 (Haw. August
21, 2007), this court considered, at great length, the question
whether the provisions of Act 44 applied to a defendant who
committed the charged offense and against whom a prosecution was
commenced prior to July 1, 2004, We held that, because of the
Presence and wording of the specific savings clause contained in
Act 44, section 28, the provisions of Act 44 -- including its
ameliorative amendments -- were unavailable to such defendants,
regardless of whether the application was characterized as
retroactive or prospective. Reis, slip op. at 29, 34, 41
(holding (2) “that the term ‘proceedings,’ as employed in Act 44,
section 29, unambiguously means the initiation of a criminal
prosecution against a defendant through a charging instrument and
subsumes within its scope hearings and other procedural events
that arise as a direct result of the initial charging instrument”
and (2) “that a defendant incurs, at the moment he or she conmits
the offense, liability for the criminal penalty in effect at the
time of the commission of the offense,” and concluding that the
e
NOT FOR PUBLICATION IN MEST! § HAWAL'T REPORTS AND VACTFIC REPORTER +++
inclusion of the specific savings clause in Act 44 evinced
legislative intent that the Act's provisions apply only
prospectively). (Emphasis in original.)
Wie, therefore, reiterate our conclusion that the
provisions of Act 44, in their entirety, do not apply to any
defendant who conmitted the charged offense and whose prosecution
was conmenced prior to July 1, 2004, regardless of the date of
the defendant’s subsequent conviction or sentence. See Walker,
106 Hawai'i at 9, 100 P.3d at 603; Reis, slip op. at 29, 34, 42.
Accordingly, insofar as Cruz vas indicted on June 16,
2004 ~~ two weeks before the effective date of Act 44's
amendments -- the 2002 version of HRS § 712-1243, see supra
note 1, applied to his case, and the circuit court therefore
erred by sentencing him to probation pursuant to HRS § 712-1243
(supp. 2008).
IV. CONCLUSION
In light of the foregoing, we vacate the circuit
court's April 11, 2005 sentence based upon HRS § 712-1243 (Supp.
2004) and renand for resentencing pursuant to HRS § 712-1243
(supp. 2002).
DATED:
Honolulu, Hawai'i, September 7, 2007.
on the brief:
James M, Anderson,
Deputy Prosecuting Attorney,
for the plaintiff-appellant
State of Hawai'i
Pea O%r
Phyllis J. Hironaka, ON redanjare.
Deputy Public Defender, Gen €, Duly. th
for the defendant-appellee
Russell Kela Cruz
|
48882980-7ace-45a5-a27e-47c838484443 | In re Marquez | hawaii | Hawaii Supreme Court |
Wo, 28207 3
3
ORIGINAL PROCEEDING oS 8
capes STITION TO RESIGN SE
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Avilds R. Marquez! s
Petition to Resign and Surrender License, the attached and
supplenental affidavits, the lack of objections by the Office of
Disciplinary Counsel, and the record, it appears that the
petition complies with the requirements of Rule 1.10 of the Rules
of the Suprene Court of the State of Hawai‘ (RSCH). Therefore,
IT 1S HEREBY ORDERED that the petition is granted.
IT IS FURTHER ORDERED that Petitioner Marquez shall
return her original License to practice law te the Clerk of this
court forthwith. The Clerk shall retain the original license as
part of this record. Petitioner Marquez shall comply with the
notice, affidavit, and record requirements of sections (a), (b),
(a), and (g) of RSCH 2.16.
I? I8 FINALLY ORDERED that the Clerk shall remove the
name of Avilda R. Marquez, attorney number 758, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order.
DATED: Honolulu, Hawai'i, September 15, 2008.
aa
|
6b3e83e3-fb5e-4b46-80dc-92f132de317c | Shanghai Investment Company, Inc. v. Alteka Co., Ltd. | hawaii | Hawaii Supreme Court |
‘NOT FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTER *
No. 26613
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
OO
SHANGHAI INVESTMENT COMPANY, INC., a Hawai'i corporation,
Plaintiff-Appellee,
vs.
ALTEKA CO., LTD., @ Japan corporation, Defendant-Appellee.
(CIV. NO. 94-2683-07)
ALTEKA CO., LTD., a Japan corporation, Plaintiff-Appellee,
WINDWARD PARK, INC., @ Hawai'i corporation, THOMAS ENOMOTO,
Defendants-Appellees,
and
Defendants.
JOHN DOES 1-10, DOE PARTNERSHIPS 2-20, DOE CORPORATIONS) 1-20, ay
(CIV. NO. 95-3483-09)
RONALD G.S. AU, Petitioner-Appellant.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NOS. 94-2683-07 and 95~3483-09)
‘SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, and Nakayama, JJ.,
Circuit Judge Hara in place of Acoba, J., recused
and Circuit Judge Blondin, in place of Duffy, J., recused)
Petitioner-Appellant pro se Ronald G.S. Av ("AU")
appeals from the June 1, 2004 order of the Circuit Court of the
First Circuit (“circuit court”)? denying his motion to enforce an
attorney's lien against his former client, Respondent-Appellee
Alteke Co., Lté. ("Alteka”). On appeal, Au raises seven points
of error, which are that the circuit court (1) erred in declining
‘The Hencrable Eden Elizabeth #ifo presides.
++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
to enforce Au’s retainer agreement with Alteka, which contained a
contingency fee provision; (2) unjustly enriched Alteka by
including Au’s contingent fees within the judgment in favor of
Alteka, but denying Au’s motion to collect such fees; (3)
committed clear error to the extent that it found that Au did not
fully perform under his retainer agreement; (4) committed clear
error to the extent that it found that Au was either terminated
by Alteka or abandoned his representation in its case; (5) abused
its discretion by derogating Hawai'i law recognizing the validity
of attorney
liens; (6) erred by implicitly ruling that Alteka
was not judicially estopped from contesting Au’s attorney's lien;
and (7) abused its discretion by deciding Au’s motion without a
hearing or trial on the merits
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 as follows:
(2) Au’s first point of error has merit. Following
this court’s ruling in Shanghai Inv. Co, v. Alteka Co., Ltd., 92
Hawai'i 482, 487, 993 P.24 516, 521 (2000) (*Alteka z*), Alteka,
through present counsel, filed a January 10, 2001 amendment to
its January 8, 2001 motion for attorneys’ fees and costs against
the adverse parties in that case, specifically seeking “an award
of a 108 contingency fee on recovery of proceeds and interest on
the promissory note between Alteka and [a non-party to the
instant appeal], pursuant to the Agreement for Legal Services
[(*retainer agreement*)] between Alteka . . . and [Au] dated
March 11, 1995,* attaching said agreement as the sole exhibit.
Of the various itens claimed by Alteka for attorneys’ fees, the
contingency fee provided by the Alteka/Au retainer agreement is
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER.
the only iten based on a contingency fee arrangement. In its
March 19, 2001, order the circuit court ultimately awarded Alteka
attorneys’ fees, portions of which were attributable to
contingency fees. This order provided, inter alia, "8 of the
principal [amount of the promissory note] ($1,171.949.70) (sicl,
interest thereon, attorneys’ fees and costs actually collected of
received in connection of this action. . . [against the adverse
parties in Alteka I].*
‘The Alteka/au contingency fee was a component in the
two April 25, 2001 judgments (one against Shanghai Investment Co.
Inc. and the other, a Third Amended Judgment against Windward
Park, Inc. And Thomas Enomoto) in favor of Alteka, awarding it
attorneys’ fees and costs. No appeal has been taken from these
two judgments. The record on appeal indicates there has been
partial satisfaction of the Third Anended Judgment by way of an
execution on real property owned by Shanghai Investments Co. Inc.
‘There is no indication that these two judgments are other than
final judgments.
Although the contingency fee was awarded at 8¢ rather
than the 10% provided for in the Au-Alteka retainer agreement,
upon careful review of the record and in the absence of any other
explanation by the circuit court or Alteka, we are inexorably
Grawn to the conclusion that the contingency portion of the
circuit court's attorneys’ fee awarded in the aforenentioned
april 25, 2001 judgments were derived directly from the
contingency fee provision within the Au-Alteka retainer
agreement. In other words, the circuit court impliedly upheld
the validity and legal effect of the contingency fee provision in
NOT _FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *¥
the Au-Alteka retainer agreenent.?
‘The circuit court erred in denying Au’s request for a
Lien because Alteka’s opposition to the imposition of the lien
contradicted the basis on which it obtained the earlier judgments
awarding attorneys’ fees. Judicial estoppel applies here to
foreclose Alteka’s opposition to Au’s motion for a lien after it
successfully obtained a judgement from the circuit court based on
the same contingent fee sought by Au.
Alteka correctly observes that Au did not raise the
issue of judicial estoppel in the adjudication of the non-hearing
motion for the charging lien. This court has, however, noted
that it has the discretion to invoke, aua sponte, the construct
of Judicial estoppel upon a clear showing that inconsistencies
and unfairness would resvit. Kahala Roval Corp, v, Goodsill,
Anderson Quinn é Stifel, 113 Hawai'i 251, 272 n. 21, 181 P.3d
732, 783 n. 21 (2007). Here Alteka’s position in claiming the
Alteka/Au contingency fee as a component of its award for
attorneys’ fees against Windward and Enomoto in the Third Amended
Judgnent is clearly inconsistent with Alteka’s position in
claiming that Au is not entitled to the contingency fee and a
charging lien based thereon. It is obvious that an unfairness
would result if Alteka is allowed to recover sums based on an
avard of the contingency fee and then be allowed to avoid
Liability on that same fee.
(2) Because this single point of error has merit and
is determinative of the entire appeal, we need not address Au’s
remaining points of error.
+ the validity cf the auard of attorneys’ fees, including that
porticn theres! attrizotable to the Alteks-Av contingency fee, ie not at Seve
+= NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
‘THEREFORE,
IT IS HEREBY ORDERED that the June 1, 2004 order of the
circuit court is vacated. This case is renanded to the circuit
court with instructions to (1) enter a attorney's lien in favor
of Au as to the contingency fee portions of the April 25, 2002
circuit court judgments, and (2) conduct further proceedings to
determine which portions of the amounts remitted to Alteka in
satisfaction of the circuit court's April 25, 2001 attorneys’
fees and costs judgments, if any, include contingency fees to be
remitted to Au.?
DATED: Honolulu, Hawai'i, October 16, 2007.
on the briefs: Sprbn—
Ronald 6.8. A%, coh
Petitioner-Appellent oro 28
basi Atston, Davis A, Neate chr .
Nakashima and Laura P. Couch te fae
of Alston Hunt Floyd & Ing for
Respondent-Appellee Deo
Alteka Co., Ltd.
> inasmuch e# the contin:
agreenent were te be pesd to" "the
Televant constituents ef which (ether than Av) are uF
inser alia, whether any other parties may have 3 valid Lien.
|
c1a4ef40-700f-4251-8bfb-740236be8564 | Exotics Hawaii-Kona, Inc. v. Du Pont. Dissenting Opinion by J. Acoba [pdf]. S.Ct. Order Order Denying Motion to Dismiss Cross-Appeal, filed 01/11/2006 [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
12 AON Loo
---000:
2
EXOTICS HAWAIT-KONA, INC, ; SHARON MURAKAMI,
as Special Representative for the ESTATE OF Gj)
CHIAKI KATO; HARVY TOMONO; ANDRAEA PARTNERS;
ARVAK AGRONOMICS, INC.; C & L ORCHIDS and ISLAND
AGRIBUSINESS, LTD.; ERNEST CARLBOM and DONNA CARLBOM;
CYMBIDIUM PARTNERS; FLORAL RESOURCES/HAWAII, INC.
FLOWERS, TNC. ; GLENWOOD CYMBIDIUM PARTNERS;
GREEN POINT NURSERIES, INC.; DANIEL HATA d/b/a
leg
HATA FARM; HANATIAN ANTHURIUMS, LTD.; HAWATZAN
GREENHOUSES, INC.; HAWATIAN HEART, INC.; ALBERT ISA
G/b/a ALBERT ISA NURSERY; KAIMU NURSERY, INC.
KAOHE NURSERY; MARGARET KINCAID and PETER KINCAID
@/b/a ANUENUE FARMS; KONA ORCHIDS, INC.: KUPULAU
ANTHURIUM PARTNERS; ALAN KUWAHARA @/b/a PUNA FLORICULTURE;
JAMES KUWAHARA 4/b/a JAMES S. KUWAHARA FARM; YOSO
KUWAHARA, INC. ; HENRY LILJEDAHL; NALAAI PARTNERS;
JAMES MCCULLY; MITSUO MIYATAKE d/b/a MIVATAKE FARMS;
CURTIS NAKAOKA G/b/a KONA GROWN NURSERIES; GEORGE J.
NAKASHIMA d/b/a NAKASHIMA FARM; JEFFREY NEWMAN d/b/a
NEWMAN'S NURSERIES; MARK KX. NOZAKI @/b/a NOZAKI FARMS:
BIG ROCK ANTHURIUNS, INC.; PATRICK OKA d/b/a OKA NURSERY;
CARL OKAMOTO d/b/a CARL OKAMOTO & LEHUA TROPICAL FLOWERS;
‘CLYDE OKAMOTO d/b/a HO'ONANEA FARMS; WADE OKAMOTO d/b/a
PARADISE ANTHURIUMS; RONALD OKAZAKI and DORA OKAZAKI
@/b/a LEHUA ANTHURIUM NURSERY; NEAL OKIMOTO 4/b/a
PACIFIC PARADISE ORCHIDS; ORCHID PARTNERS; PACIFIC
NURSERIES, INC.; POLYNESIAN ORCHIDS & ANTHURIUMS, INC. ;
PUNA FLOWERS & FOLIAGE, INC.; SUNSHINE FARMS; GEORGE
SHIROMA d/b/a G. SHIROMA FARMS; MASATO SHIROMA d/b/a
MAE'S NURSERY; MASAO SUNADA; SAMUEL H. TAKA & SYLVIA A.
TAKA d/b/a S. TAKA; YOSHIO TAKEMOTO, MIDORI TAKEMOTO,
CARY TAKEMOTO, MORRIS TAKEMOTO and NORMAN TAKEMOTO
@/b/a TAKENOTO' FARM; FETULIMA TAMASESE d/b/a PACIFIC
KONA ORCHIDS; HAROLD S. TANOUYE & SONS, INC.;
HENRY TERADA and LORAINE Y. TERADA d/b/a H & L TERADA
FARM; VANTANAGE PARTNERS; UNIWAI I LIMITED PARTNERS;
UNIWAI IT LIMITED PARTNERS; WAIAKEA PARTNERS; DWIGHT
E. WALKER, JR. and BERNICE X. WALKER d/b/a PUNA
HANA FLOWERS; MARK WILLMAN 6/b/a HAWAII ORCHIDS;
EXOTICS HAWAII, LTD., Plaintiffs-appellante/Cross-Appellees
ve
aats
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in West’s Hawai'i Reports and the Pacific Reporter
E. I. DU PONT De NEMOURS & COMPANY; ALLEN TESHINA;
and REGINALD HASEGAWA, Defendants-Appellees/Cross-Appellants.
no. 27489
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 97-103K)
NOVEMBER 21, 2007
MOON, €.9., LEVINSON, NAKAYAMA, JJ., AND CIRCUIT
‘To0GE LEE, IN PLACE OF DUFFY, J., RECUSED:
ACOBA, J., DISSENTING
OPINION OF THE COURT BY MOOK, C.J.
‘The instant action arises from product ability cases
initiated by the pleintiffs-eppellants/cross-appellees Albert Isa
dba Albert Isa Nursery (Isa), Samuel H. Teka and Sylvia A. Taka
dba §. Taka (the Tekas), Mark Willman dba Hawai'i orchids
(witiman), and James Necully {hereinafter, collectively, the
plaintiffs} in 1992 end 1993 against, inter alia, the defendant-
appellee/cross-appellant F.1. du Pont de Nenours and Conpany
(DuPont), alleging that contaninated Benlate, an egricultural
fungicide manufactured by DuFont, had killed or damaged their
plants and nurseries.* Between 1994 and 1995, the plaintiffs
} there were originally sixty plaintiffs in the present action:
however, futty-sin pleintiiie resolved their coses sgeinst DuFont Guring the
Circuit court proceedings. Specifically, thirty-seven of the original sixty
pleintitfe settled their claine against DuFont en Septexber 27, 2002, four on
Beptenber 2, 2003, and thirteen on June 24, 2008. The remaining six
pleintiffe proceeded with their case te ite conclusion; however, epperently
(continued...)
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in West's Hawai'i Reports and the Pacific Reporter
oy
settled their product liability cases. In 2000, the plaintiffs
commenced the instant action against, inter alia, DuPont,
alleging that only after settling their claims did they discover
that DuPont had improperly failed to reveal certain vital
scientific data and information indicating that Benlate was
contaminated. As such, the plaintiffs believed that DuPont was
guilty of fraudulently withholding such evidence in order to
induce them to eettle for less than the fair value of their
clains.
In three sumary judgment orders, the Circuit Court of
the Third Circuit, the Honorable Ronald J. tbarra presiding,
found in favor of DuPont on all of the plaintiffs’ claims.
Significantly, the circuit court, without determining whether
DuPont indeed committed fraud, found as a matter of law that the
plaintiffs could not meet their burden of proving damages.
According to the circuit court, the damages available to the
plaintiffs wes ‘the fair compromise value of the claim at the
time of the settlement." A judgment, pursuant to Hawai'i Rules
1. cont inves)
two of the six pleintiffe cettled thelr clains against DuPont inasmuch #8 only
{he Inetant four plesntiffe appealed to this court. Socn after the filing of
the notice of appeal. th intilfe thet apparently settled with DuPent
fied their stipulation of partial dismiceal of action with preiudice.
Accordingly, unvete ctherise incicated, any proceedsnge redeting to th
Fftyceix plaineiffe will not be menticned 4 ‘nencrandum inesmuch
are vot relevant to the disposition of the eppeal
‘they
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in West's Hawai'i Reports and the Pacific Reporter
of Civil Procedure (HRCP) Rule 54(b) (2007),* in favor of DuPont
was entered on August 10, 2005.
The plaintiffs appeal -- ond DuFont cross appeals
from the HRCP Rule 54(b) judgment. The plaintiffs challenge,
{inter alia, the circuit court's order granting summary judgnent
on the basis that they were unable to prove damages. Although
DuPont's position is that the HRCP Rule $4(b) judgment should be
upheld, it cross appeals in apparent recognition of the
possibility that this court may not agree with its position,
challenging another order granting in part and denying in part
DuPont's motion for sunmary judgment, discussed infra.
For the reasons stated herein, we hold that the circuit
court properly granted sunmary judgment in favor of DuPont on the
basis that the plaintiffs could not, as a matter of law, prove
damages and, therefore, affirm the circuit court's August 10,
2005 judgment.
I. BACKGROUND
‘This court has previously presented a brief factual
summary of the underlying product liability ceses in Exotics
Hewai‘i-Kona, Inc, v. E.I, Dupont De Nemours & Co., 104 Hawai'i
* MRCP Rute 54 (b) providi
in relevant part that
hen rere than one claim for relief ie prei
action, whether 26 # cleim, counterclaim,
thiré-arty claim, or when multiple parties are involves,
the court nay direct the entry of final judgment ae to one
or nore but fever than sll of the laine or parties only
pen an exprese determination that there ie no Just reason
For delay a6 Upon an express direction for the entry of
juegment,
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in West's Hawai'i Reports and the Pacific Reporter
358, 90 P.34 250 (2004). However, given the resolution of this
case and the fact that the instant appeal involves only four of
the sixty original plaintiffs, see supra note 1, a concise
version of the facts dre provided below as they relate only to
those four plaintiffs and the pertinent summary judgment orders
-- specifically, the order granting summary judgment based on the
plaintiffs’ inability to prove damages.
A. The Complaint
As previously mentioned, between November 1992 and
March 1993, the plaintiffs, who were commercial growers, brought
product liability actions against, inter alia, Dupont, alleging
that ite Benlate product was defective and that it caused damage
to their plants and nurseries. In 1994 and 1995, the plaintiffs
entered into individual settlement agreements with DuPont that
resulted in DuPont's payment of certain sums in exchange for the
execution of releases by the plaintiffs. As a result of these
settlement agreements, the plaintiffs entered into stipulations
to dismiss their product 1iability actions with prejudice.
on January 6, 2000, the plaintiffs filed an eighty-four
page first amended complaint against, inter alia, DuFont. The
plaintiffs claimed that DuPont had defrauded them “into settling
for pennies on the dollar for danages* caused by its Benlate
product. Specifically, the plaintiffs alleged that DuPont
wrongfully, illegally, and fraudulently withheld from discovery
vital scientific éata and information that it was under an
*** FOR PUBLICATION **
in West’s Hawai'i Reports and the Pacific Reporter
obligation to produce in the underlying product liability
actions, The plaintiffs’ first amended complaint alleged that:
208. if, at the tine the (p)laintitts accepted
settlonent of their underlying (product liability] clains,
they hed received full, fair, truthful and complete
Gieclocure of material information, the [plaintiffs would
ot have sceepeed the coneiderstion offered for eettlanent
Which vas substantially lese than the loses which they had
suffered
209. [the pliaintitts would have continued to press
their Clains if full, complete and truthful disclosures had
been ade. Reliance by those ipliaintiffs on full, fair and
Gizclocure by Dofont, which in fact was not forthcoming,
Ferulted in injury in the form of settienent for lower
Compensation than wae adequate or would otherwise have been
available.
the plaintiffs asserted that the ‘appropriate measure of recovery
for said conduct is the difference between [the p]laintiffs’
actual
total damages (e.a,, crop and plant losses, soil injuries,
lost market positions and lost economic advantage) and the
amount,
if any, previously received" from DuPont. Accordingly,
the plaintiffs alleged ten counts, to wit:
1 intentional spoliation of evidence
2 [negligent spoliation of evidence
a _| frove
4 | Fravéulent misrepresentation
5
é
cation
negligent miarepren
non-@isclesure?
nondiecl
ond) of Torts § $61 (1977), entitled “Liability For
ovure,” provider in relevant pert:
(2) one who fails to disclose to another & fect that
he knows may justifiably induce the other to act oF refrain
from scting ins business transaction is subject te the sane
TTebility to the other as though he he reprevented the
Ronexistence of the matter that he has failed te eisclese,
Ge, but ony if, he ie under a duty to the other to exercice
wont inved...)
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in West's Hawai'i Reports and the Pacific Reporter
| civil conspiracy
(9 | violation of due process rights and righte
Yova fair trial as guaranteed by article I.
Section € of the lawal's State Constitution
30 | exenplary dareses
DuPont filed ite answer to the first amended complaint on
February 14, 2000.
>(seontinved)
Feasorable care to disclose the matter in question.
(2) One party to a business transection ie under 6
duty to exercise reesonable care to disclose to the ocher
before the transaction is consumated|:)
(a) ‘nattere known to him that the other Se entstt
fo know Because of « flesctary or other eimilé
Felation of trust and confidence between them
ane
(b) Batters know to him thet he knows to be
Recestary to prevent his partial or anbi
Stetenent of the fects from being misleading:
and.
(cl) Subsequently acquired information that he knows
“ill make untrue or éeleading © previous
Fepresentetion that shen nede wee true oF
Believed to be 0; end
(a) the falsity of representation not made with
the expectation that it would be acted upon, if
he eubeequently learns that the other is about
fo act in reliance upon it ina traneaction with
Rims ane
(e) facts basic to the transaction, if he knows that
the other ie shout to enter into st under 8
mistake as to them, and that the other, because
Of the velationship between then, the Custons of
the trade or other objective circunstances,
would reasonably expect © disclosure of those
fects
«tn angwering the complaint
seeking, inter sia. des
poreving their ecticn in violation of the settlement egveem
Covenant not to sue. Mewever, the circuit court has yet to
countercleim and, in fact, etéyed a1] proceedings relating to the counterclaim
Pending resolution of the instant appeal
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in West’s Hawai'i Reports and the Pacific Reporter
B. Exoceedings Regarding the Motions for Sunmary Judament
As previously stated, the circuit court, in three
summary judgment orders, found in favor of DuPont on all of the
plaintiffs’ claims. However, in light of our disposition, we
recount only two of the three motions, focusing especially upon
the motion concerning the plaintiffs’ lack of evidence to support
their damages. The other motion for summary judgnent is
addressed infra in section 111.A.2. as it becones relevant to the
plaintiffs’ other contentions.
1. Motion for Summary Judgment as to All Clains
on January 8, 2004, DuFont filed a motion for sunmary
judgment on all of the plaintiffs’ claims. Relying on this
court's answers to the questions certified by the United states
District Court for the District of Hawai'i in Matsuura v. ELI. a
Bont de Nemours & Co., 102 Hawai'i 149, 73 P.34 687 (2003)
[hereinafter, Matsuura 1], -- another Benlate settlement fraud
action -- DuPont argued, inter alia, that summary judgment was
proper for the non-fraud claims inasmuch as this court, in
Matsvura I, determined that "a party is not immune from liability
for civil damages based upon that party’s fraud engaged in during
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in West's Hawaii Reports and the Pacific Reporter
———
prior litigation proceedings." Id, at 162, 73 P.3d at 700.
DuPont, thus, maintained that:
Since St Se now clear in Hawai'i that, absent fraud,
i existe oa
fcr litigation *.. - DuPont therefore ie immune
from ali of [the plisincitie’ non-fraud clains because thes
Elaine exe besed on allegations of "misconduct engaged in
Goring pricr litigation’ such as improper discovery
Ferponses, false statements of counsel, etc.
(emphasis in original.)
Moreover, DuPont also argued that it was entitied to
summary judgment on the freud-based clains inasmuch as “no
zational jury could conclude that these (p)iaintitts reasonably
believed the truth of DuPont's alleged misrepresentation.*
(emphasis adéed.) In determining whether the plaintiffs are
precluded as a matter of lew from bringing @ cause of action for
fravdvlent inducenent to settle, this court in Matsuura
sclarif [ied] that, under Hawai'i lew, to prevail on a cleim of
fraudulent inducement, [the] plaintiffs must prove that their
+ priefly steted, the plaintiffe in Metevura J settled their product
Liabiaiey ecticne egainet DuPont, and, thereafter, Brought a cleim in the
feseral district court for, inter alia, fraud and interference with
prospective economic advantsge. 102 Hawai'i at 152, 73 P.3¢ at 690. The
Federal district court subsequently certified three questions te this court,
the anseere to which are discussed infra ac applicable. Id. at 154, 73.38
avez.
neo, during the pendency of Matsuura Z, the circuit court in the
inetant cose, at the request of the parties, submitted four reserved questions
iEthls court, three of which were identical to the certifies questions
‘natant ceee wot
consolidated with Hetauure Z for purposes of ore: eispesition
SE *rhe fourth renerved question, which 4s not relevant to thie
BesereS ty thie court in Exotics Heval ia
fitge, 300 uowas'i 388, 90 P-3a 250 12006)
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reliance upon a defendant's representations was reasonable." Id.
at 163, 73 P.3d at 701 (emphases added).* DuPont argued that:
In their product liability ceses, where (the
plaintiffs sued DuPont for millions of dollars claiming
Benlate wes defective, it was (the p]iaintiffs’ financial
interest to el Ineesbelieved
concerning the nature of and/or non-existence of [alaverse
Benlate (scientific data were false, and that they
Kneu/belleved that laldverse Benlate (scientific daca
quieted, And, as the record of thie [elourt denonstrates,
that Is exactly what [the pllaintiffe claimed =
consistently, repeatedly, and vehenently.
In thig case, however, where [the p)iaintiffe have
sued DuPont for millions of dollere claiming they were
"Sefrauded" in their product liability settienente, it Se in
[the pllaineifts' {ineneial interest to claim they did Mor
DePont“ etatenents concerning the nature of
and/or noh-extstence of Benlete {scientific data
Hom [the pllaintiffe’ elenpleint and nterrogatory
anevers, that ie exactly what they are claiming ==
Consistently, repeatedly, and vehenently.
(emphases and capitalization in original.)
on January 16, 2004, the plaintiffs filed their
menorandun in opposition to the motion. A hearing was held on
vanuary 26, 2004, wherein the circuit court orally denied the
motion to the extent that “there's @ genuine issue of material
fact as to the reasonableness of the fraud claims.* The circuit
court, however, granted the motion as to the clains of
intentional and negligent spoliation of evidence (Counts 1 and
+ re Ge weld-sereied that
[tle constitute fraudulent inducenent sufficient te
invalidate the terns of a contract, there must be (2) @
Fepresentetion of e material fect, (2) rade for the purpose
of inducing the other party to ect, (3) knew to be falee
but ressouably believed true by the other party. ané (é)
‘pen whieh the other party relies and acts to his OF her
carast
1G, at 162-63, 73 P.36 at 700-01 (citations ané internal brackets omitted)
(emphaeis edded).
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2), Antentional interference with prospective economic advantage
(Count 7), and violation of constitutional rights (Count 9). A
written order was entered on February 25, 2004, granting in part
and denying in part the motion for summary juégment.
Specifically, the circuit court granted summary judgment as to
the non-fraud clains, .e., Counts 1, 2, 7, and 9, and denied
summary judgment as to the fraud and deceit claims, i.e., fraud
(count 3), fraudulent misrepresentation (Count 4), negligent
nisrepresentation (Count 5), and non-disclosure (Count 6). The
circuit court also ruled that civil conspiracy (Count 8) and
exemplary damages (Count 10) ‘are not separate counts, but are
merely derivative to [the p]laintiffs’ remaining claims.*
2, The Motion for Summary Judgment Based on the
Plaintiffs’ Inability to Prove Danage:
on February 3, 2005, DuPont filed a motion for sunmary
Judgment based on the plaintiffs’ inability to prove damages.
Relying on E.L, Dufont de Nemours & Co. v. Florida Everareen
Eoliace, 744 A.24 457 (Del. 1999), Richardson v. Economy Fire &
Casualty Co,, 485 N.E.24 327 (711. 1985), and Urtz v. New York
Central & Huéson River Railroad Co., 95 N.E. 711 (N.Y. 1911),
Giscussed infra, DuPont maintained that the plaintiffs’ remedies
are limited to either: (1) rescinding their settlement
agreements, returning any benefits they may have received, and
seeking @ return to the status quo ante; or (2) affirming the
agreenents and suing for daneges in a fraud action, which damages
one
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are measured based upon “the fair compromise value” of their
ctlement. DuPont further
released tort claims at the time of
contended that:
Despite electing to forego their clains for the actual
judgnent value of their (product Liability) clains ~
ingeed, settling these claine, releasing these clains, and
keeping DuPont's settlenent money for these elaine —~" [the]
Disintsffe nave not sousht the faix compromise value of
Their ipreduct 2iabiiity] claine as of the cay of their
settlenents.
Rather, [the] plaintiffs in thie case seek the “actual
Svdgment valve’ of thelr RELEASED [product Liability) casee
of today(, se ccronetreted by the plaintiffs’ statenent
Of the appropriate neneure of recovery in the first amended
complaint)
(emphases and capitalization in original.) DuFont argued that,
inasmuch as
hat the compreniee value factors are in a parti
fe well as hoy they would be evaluated in thet c
fattere within the common knowledge ané experience of
Surerel.) Capert cestinony By lawyere experienced in
[Veigating ana’ compromising cates is required to ald the
jury in cetermining the fair compronize valve of a case
(Footnote omitted.) (Emphases in original.) Consequently,
DuPont asserted that the plaintiffs did not have the expert
testinony required to sustain their burden of proof on the proper
measure of damages, stating that:
[the pleintstfe’ underlying product lability action)
lnwere(, in thely expert reports, as Glscusted infra, dsé)
not opine, shout the factorg Feievent ro the determination of
Of each plaintiff's cose on the
Eife‘et the settlenent, nor how these factors would be
applied -- to each case. They simply state, generally, that
their respective cliente’ [product liability) cases would
have been gizonser Fad they had the "hidden evidence,” and
thus the settienent value of the cases would heve been
higher.
(Emphases in original.)
In their memorandum in opposition to DuPont's motion,
filed February 17, 2005, the plaintiffs argued that their renedy
-12-
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should not be limited to the reasonable settlement value absent
fraud. Rather, they ergued the remedy should be measured by the
plaintiffs’ change in circumstances resulting from the fraudulent
conduct, which, according to the plaintiffs, is "the value of the
position that was foregone, plus any consequential costes incurred
as a result of the misconduct. The plaintiffs contended that:
If [the p)laintiffe in thie case are Linites by the [clourt
solely to the recovery of the value of a vreasenable"
Settlenent in 1994, DuPont receives the benefit of Ste
fraud, Such @ ruling would serve to encourage fraud in
settlénents. “Allowing s frevd-fearor to first reduce the
Value of a plaintiff's settienent (or even judgrent) by.
witmholdine evidence, but then, [if] froud ie discovered,
Liniting the veney i, 2, 3 (or, in thie cose, 12) yeare
later to thet ancunt the’ defendant ‘might heve paid towards
settlenent in the absence of that frevé, bot no nore, would
Feeard the fraudsfeasor, who would firet have had the use of
the unpaid portion of the nrecovered gettlenent or
Judgnent, end then protection from ehe court againet
imposition of any fuller reneéy. If that were the law,
every defendant in litigation would be motivated to fret
try fraud, and only later try te be “reasonsble
‘The plaintiffs maintained that
the duty of the jury will be to measure the entire velue of
[the pliaintiffe’ lee resulting from the freudulent induced
settionente, which naturally includes consideration of the
Value of the settled [preduet Tiability) claims. Tt will be
the jury's role to ceternine if the coneideration paid in
the Griginal settlenent is nore or less than the los.
3n this case, only after the jury had first considered the
Selue-of [the plisineltfe” [ered i
(rjuagnent valuer), should the jury next consider what the
value the Jury Believes wae actually lost through {reva,
s in original.) Lastly, the plaintiffs argued that their
(Emph
expert opinions fully satisfied the evidentiary requirements
inesmuch as these opinions “repeatedly touch{ed) on the issues of
factors related to ibility, settlenent, client reconmendations,
and the relation between Mebility, damages, settlement, end
judgments in the product [1ability) action(s).
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Following a hearing on the motion, the circuit court
‘entered an order on February 28, 2005, granting DuPont's motion
for sunmary judgment, concluding that,
audulentiy induced to 26th
Giscovery/iitiostion fraud. (s/he has two options [, i.e
wo-cholces of remedies): “G1 to sue to rescind the
Bettlerent contract; or (2) to-sffirm the contract and sue
for-traud. It eine chootes to sue for {raud, the remedy
Dusilsble to [che glisintit? ts the fair conpfosise valve of
Khe claim at the tine of the settlesent, In order to neck
‘helt burden of proving the fair cosproniae valve at the
Eine of settlenant. [the pilaineiffe would need to net thie
Burden with eavert lamer cestinony directed to the numerous
Eosprenise factors. and bow they would have applies to gee, e.g, Turkish v. Kacenetz, 27 F.34 22, 26 (26 Cir. 1996)
applying New York law); authentic Ars ives ‘SoM Grou
piece, Fhe 628 cae 728 Gh Sgn.) HignanSnan Eee Hi 8
BES es wresda 227, 330. (212. 198s) citing & collection of ceses from
‘SSEtesat wichican and New York); Sleoe) v, Williams, 628 N.£.2¢ 510, £16 Ind.
Ce. App, 2004}; Ware v. State Farm Mut Auto, Ing. Co,, 31: 7,26 316, 320-22
(ran, Pas); Bilotei y-Accurate Formine Corp, 168 A-2é 24, 30-25 (io
3963): S14 £6.26. 730, 733, (N.C. Ct. App. 3999); Sabbatis
PEREES WE s0 28, 332 Ohio ce. App. 2006); Fields v. varboroven
cont need.)
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conclusion of the circuit court in the instant case to allow
defrauded tort plaintiffs the traditional contract renedies of
either (1) rescinding the contract, returning any benefits
received, and being returned to the status quo or (2) affirming
the contract, retaining the benefits, and seeking damages.
Additionally, when there exists two or more concurrent
but inconsistent remedies, as here, the equitable doctrine of
election of remedies provides that:
Ia] plaintséf need not elect, and cannot be compelled te
elect Between inconsistent renedies during the course of
trial. If, however, e plaintiff hee unequivocally and
Knowledceably elected to proceed on one of the Teneaies he
Sr she is porsving, ne or she ray be barred recource to the
Other. The doctrine acte as a bar precluding o pleintitt
from geeking an inconsistent renedy asa rerult of his or
her previous conduct or election
Cieri v. Leticia Query Realty, Inc., 80 Hawai'i 54, 72, 905 P.2d
29, 46 (1995) (internal quotation marks, citations, brackets, and
is in original). The purpose of the
ellipses omitted) (emphat
election of remedies doctrine ‘is not to prevent recourse to any
remedy, or to alternative remedies, but to prevent double
recoveries or redress for a single wrong." 25 Am. Jur. 24
Election of Remedies § 3 at 665 (2004) (footnotes omitted).
In the instant case, the plaintiffs did not seek
rescission of their settlenent agreenents in their first amended
complaint. In fact, the complaint wholly rested upon allegations
of DuPont's fraudulent misrepresentations and concealment of
8. seontsnves)
or, Inc., #14 -F.26 164, 366 (S.C, 1992)
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scientific data and information that were allegedly vital to the
plaintiffs’ settlenent negotiations of their product liability
claims. Thus, based on the allegations of their complaint, the
plaintiffs have ‘unequivocally and knowledgeably" elected to
affirm their settlement agreements and pursue an action for
fraud. Consequently, we next examine the appropriate measure of
damages in the plaintiffs’ asserted fraud action.
b. the proper measure of damages
‘The circuit court concluded that, when a defrauded
party elects to affirm the settlement agreenent and sue for
fraud, ‘the remedy available [(i.e., damages)) . . . is the fair
compromise value of the claim at the tine of the settlement.+
(emphasis added.) The plaintiffs, however, argue that the
circuit court erroneously *limit{ed) the anount of recoverable
damages to the difference between what (they) actually settled
for, and what they could have settled for, had there been no
fraud.* Such limitation, according to the plaintiffs, ‘has never
been accepted in this jurisdiction. To the contrary, the Hawai'i
lalppellate [cJourts have continually held that the desired
remedy in fraud cases is to restore the victim to the position he
would have occupied but for the misrepresentation.* (Citations
omitted.) The plaintiffs, thus, believe that the circuit court's
ruling
deviated from the goal of the available veredy -- to restore
then to the former positions they occupied but. for DuPont's
Geceit ~~ and inetead cerved to deprive [the p)ieintitfe of
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any possibility of recovering that which, in all likelihood,
they’ could reasonably have achieved had the fraudulent
Condvet not occurred. ‘The decision was contrary. to the
tablished law of Hawai'i, and contrary to the proper
Sutcone dictated by the facts of the litigation, and should
now be set ssice.
DuPont, on the other hand, maintains that the “fair
compromise value is the proper measure of damages for full and
adequate compensation of a fraudulent inducement claim, and is
not a cap or limit on damages.” (Emphasis in original.)
(internal quotation marks and other emphases omitted.) In
DuPont's view,
[t]hie weasure of damages se consistent with the general
objective of freud, which is to place the Gefrovdes
pleintife Sn the position he would have been "but fort the
Fraud. Since [the plaintiffe] claim their cettlenent
ancunte were less than they were worth becouse DaPont had
Induced then to settle through certain fravéclent
nisrepresentations, their nessure of daneges logically ie
hat thelr eettienent ancunt would have been if there had
Been no fraus.
It is well-settled that all tort claims require that
damages be proven with reasonable certainty. see, e.¢., Weinber
vaMauch, 78 Hawai'i 40, 50, 690 P.24 277, 267 (1995) (*{Z]t is
of the essence in an action . . . that the plaintiff suffer
garages as @ consequence of the defendant's conduct, and these
ganages cannot be speculative or conjectural losses." (Internal
quotation marks and citation omitted.)); see also Hoxas
Marcos, 89 Howai'i 91, 141 n.33, 969 P.26 1209, 1259 n.33 (citing
a collection of cases for the sane proposition). specifically,
in a fraud case, “the plaintiff must have suffered substantial
actual darage, not nominal or speculative." zanakis-Pico v.
Cuter Dodce, Inc., 98 Hawei'i 308, 320, 47 P.36 1222, 1233
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(2002) (citation and emphasis omitted). The “plaintiffs suing in
fraud are required to show both that they suffered actual
pecuniary loss and that such damages are definite and
ascertainable, rather than speculative. Id.; see also Hawaii's
Thousand Friends v. Anderson, 70 Haw. 276, 286, 768 P.26 1293,
1301 (2989) ("plaintiff must show that he {or she) suffered
substantial pecuniary damage"). The aim of compensation ‘is to
put the plaintiff in the position he or she would have been had
he or she not been defrauded.* Zanakis-Pico, 98 Hawai'i at 320,
47 P.3d at 1233 (quoting Ellis v. Crockett, 51 Haw. 45, 52-53,
451 P.24 614, 620 (1969)) (original brackets and ellipsis
onitted).
‘This court has further explained that:
1A Glatinction is nade in the law between the ancunt of proof
required to establish the fact that the injured party hse
fustained sone Canage and the measure of proof necessary to
enable the jury to determine the ancunt of danage. IE
zecovery is uncertaint ng not ae
Xo_ite fount, jiovever the rule that uncertainty ae to the
angunt does not necessarily prevent recovery te not to be
interpreted ai ara
-erteinty and th ing er concivsien
‘founded _ubon_nere speculation or ques.
Chung vy. Kacnohi Ctr, Co,, 62 Haw. 594, 605, 618 P.26 283, 290-91
(2980) (emphasis added) (citation and brackets omitted) (format
altered), abrocated on other arounds by Francis v. Lee Enters..
Ings, 89 Hawai'i 234, 971 P.24 707 (1999). In other words, where
the fact of damage is established, this court will not insist
upon a higher degree of certainty as to the amount of danages
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than the nature of the case permits, particularly where the
uncertainty was caused by the defendant's own wrongful acts.
Coney v. Lihue Plantation Co., 39 Haw, 129, 138 (1951). This
court, however, has recognized that
(t]he problem of how to measure danages, and how to
getablich then in frau@ caces, is slvays a cifficult one
Since the percon defrauded hag, because of the fraud, not
pursued alternative courses of action, and the results of
these untaken courses therefore renain speculative. In 3
Restatenent (Second) of Torts (1977), a discussion of the
problem of danages proof appears under § 549.("] in the
Coment to eubsection (2) of that section, the following
‘appeas
hen the plaintiff has made a bargain with
the defendant, however, situations arice in
which the rules stated in subsection (1), and
farticularly that stated in Clause (a) of that
Subsection, do not afford compensation that is
Suet ana eatistactory.
‘The frequency ef these eituations has 1ed
the great majority of the Anerican courts to.
- é ana
making that the normal measure of recevery in
betions of deceit
Leibert v. Fin, Factors, Ltd., 71 Haw. 285, 290-91, 788 P.24 833,
837 (1990) (emphases added); see also Zanakis-Pico, 98 Hawai'i at
* Section 548, entitied ‘Measure of Danages for Fraudulent
Mierepresentation,* provides that:
Sgeinet the ssker the pecuniary loss to him of which the
lerepresentation is a legal cause, including
(a). the difference Between the value of whet he hes
received in the yetion and 1
price or other valve given for st
(b) Pecuntary lose euffered otherwice a6 8
Eonscquence of the recipient's reliance upon the
Bisrepresentation.
(2) the recipient of f fraudulent alerepresentation in
a businese transaction ie sico entitied to recover.
Seeitsonal Canegen sufficient to give him the benefit of hie
Contract with the meker, if these danages ave provee with
* certeinty:
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320, 47 P.34 at 1233 (*In fraud or deceit cases, the measure of
pecuniary damages is usually confined to either the ‘out-of-
pocket’ loss or the ‘benefit of the bargain{.]'* (Citation and
ellipses omitted.)).
Notwithstanding the aforementioned well-established
general principles regarding the proof of Gamages, this court has
not had the occasion to articulate what must be proven in order
to bring a meritorious settlement fraud claim. To this end,
Living Desiong, Inc, v. E.1, Dupont de Nemours & Co., 431 F.34
353 (9th Cir. 2008), cert. denied, _ U.S. _, 126 8. Ct. 2861
(2006), is instructive. In that case, the Ninth Circuit reversed
the federal district court’s ruling in Matsuure v. B.2. du Pont
de Nemours & Co., 330 F. Supp. 24 1101 (D. Haw. 2004)
Uhereinafter, Matsuura 11]. Relying upon Urtz v. New York
Central & Hudson River Railread Co., 95 N.E. 711 (N.¥. 1911), and
Automobile Underwriters, inc. v. Rich, $3 N-E.24 775 (Ind. 1944),
the federal district court in Matsuura 11 hed determined thet "a
‘settlement fraud’ plaintiff must prove not only that the settled
claim hed merit, but also that the value of the claim exceeded
the anount of the fraudulently-induced settlenent.* 330 F. Supp.
26 at 1123. applying this rule to the facts of that case, the
federal district court concluded that “DuFont [wa]s entitled to
sunmary judgnent on all of the Matsuura [p]laintiffs’ clains éve
to their inability to prove either the fact or [the] ancunt of
Gonages with reasonable certainty." Id, at 1125.
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In Urtz, the New York Court of Appeals determined that,
where the underlying claim has no viability, there is no
potential for recovery for fraud in the inducenent of settlement
because plaintiff would not be able to show any injury by reason
of abandonment of an entirely valueless claim. 95 N.E. at 713.
In Uxtz, the plaintiff, relying on alleged misrepresentations,
settled her claims for the wrongful death of her husband. Id, at
732, The jury found in favor of the plaintiff in her freud
8 bi
action but the appellate court revel 44 upon the trial
court's refusal to charge the jury that, in order to maintain the
action, the plaintiff must denonstrate that her original claim
for Wrongful death was valid and existing at the time of
settlement. Id, at 714. The court offered the following example
of a plaintiff claiming that she was fraudulently induced to
settle a claim besed on a promissory note and stated:
Isite, in an action to recover her damages caused by the
frandi,] must have given evidenc
ip proof of the validity
farting point for the
they found that the note
“ by [the] defendant, they would find
Reo that che had evetained no canage and coulé not raintain
the action, Unless she had the valid note of the defendant,
he had and released in the compromise nothing of value
Id. at 712. By ascribing error to the jury instructions, the
Urtz court essentially specified that, in the trial of a
the plaintiff carries the
fraudulently induced settlement claim,
burden of proving sone merit to the underlying cause of action.
Likewise, in Automobile Underwriters, the Indiana Supreme Court
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indicated that, when the plaintiff elects to proceed with the
fraud action, he or she
recognizes that the settlenent {sa ber to the original,
action and thee {et ove
snot only that the Settlement wea procures by fraud and to
Riis danage, but also
posinet the original tort teaser at the tine Of the
settlenent’
53 N.E.24 at 777 (emphases added) .
In Living Desiang, the Ninth Circuit implicitly
expressed its disapproval of Urtz and Automobile Underwriters to
the extent that these cases required a plaintiff in an action
based on settlement fraud to prove that he or she had a “good
cause of action against the tortfeasor at the tine of settlement.
The Ninth Circuit reasoned that, to concluée that
plaintiffs most denonstrate thet their settied claim hed
herit ie inconsistent with the sim of compensation in fraud
Cates, which ie to restore plaintiffs to the position they
Would’ be in abeent the fraud and to provide plaintiffs with
the benefit of the targain, see Leibert, (72 Hew. at 268
90,) 788 P.2d at 636-37, particularly ee a party's decision
fo settle i often made ae 2 recult of 2 cost-benefit
analysis rother then an asvcesnent of the claim's nerite
431 F.3d at 367. Father, the Ninth Circuit, relying upon
PiSabating, held that
the relative etrength of the claim in the absence of fraud
theuld be used by the trier of fact to determine the ancunt
of the defrauded party's danages. whether the defrauged
Party could have won its cese if it proceeded to trial 1s
[rrelevant co this calculation i ice
See reaches, Such ¢ determination ie not Beyond the pow?
bf a Jury to determine. The vee of probability anaiyeie
Yor example, in calculating settlenent Value is not
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431 F.3d at 368 (emphasis added) .*
As stated above, DiSabatino dealt with the question
whether the plaintiff was permitted to affirm the settlement
agreement and institute an independent cause of action based on
fraud, to which the court answered affirmatively. 635 F. Supp.
at 351. In declining to follow other courts’ limitation of
remedies to rescission based, inter alia, on the assunption that
damages are too speculative, the court explained that:
tn any action beeed on fraud, the fact finder will simply
Reasure the extent of the plaintiff's denages by exenining
het the agreement would have been, had the parties. known
the actual material facts. The nature of the injuries i
the foregone tort action are relevant ohly to the extent of
how they would affect the value of the claim to be
compromises.)
Ed, at 355. The court further indicated that:
ction exieted at the tine
fect that the parties
q Genscee fron the
Id. (citation omitted) (emphasis added). According to the
pisebatino court, the better approach is for the trier of fact to
determine "the probsble amount of settlement in the absence of
fraud after considering 211 known or foreseeable facts and
circumstances affecting the value of the claim on the Gate of
+ gaged on evidence indicating that knowledge of the withheld evidence
fed the eettienent value of the ceees,
Jarger ancunts ené expert
Seve of fact oe
Into ruling, the
es were “not so speculative that canages are
Sneepable of calculation.” id. 0 369.
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settlement[;] the amount in settlement already received should
[then] be deducted from this total amount. Id, at 355 (citation
omitted), Stated differently, the defrauded plaintiff may
‘recover such an amount as will make the settlement an honest
one.* Ia, (internal quotation marks and citation omitted).
"(T]he measure of Gamages{, therefore,] is the loss of the
bargain." Id, (citation omitted).
Moreover, although the Ninth Circuit rejected the
holdings in Urtz and Automobile Underwriters that a defrauded
plaintiff must prove that his or her settled clains had merit,
the analyses of both courts as to the method of determining
damages are in accord with Living Desiang and Disabatino
specifically, the Urtz court explained that the measure of
damages is
how much could the plaintiff have reasonably denanded and
the defendant renecnably heve sllowed es (6) final
Compromise above end beyond the (amount) in fact allowed ané
Feceived? .. [In determining the amount. the jury] would
take into view the probebiiities of the successful
enforcenent of the Cause of action, the probable extent and
expense of the expected 1itigation over this disputed claim,
st ‘probebiiity of the continuing solvency
of the defendant, and such other facts pertinent to the
‘question of danages as the evidence presented.
95 NE, at 713. Stated differently, the court believed that “the
plaintiff, affirming the compromise agreement and unable to
recover the contract belance, is entitled in accordance with the
general rule to have such compromise agreenent made as good for
him as it reasonably and fairly would have been if only the truth
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had been told instead of a falsehood asserted." Id, at 714
(internal quotation marks omitted) .
‘The Automobile Underwriters court expressed that the
measure of damages in @ fraud action “must take into
consideration the salable value of the right of action for the
purpose of compromising, and the nature and extent of the
injuries known and foreseeable as of the time of the settlement,
then shown
under the particular circumstances of the parti
existing. 53 .N.E.24 at 777 (citations omitted), The proper
for
procedure for determining damages, in the court's view,
would
the jury to calculate the "probable amount’ the parti
have agreed upon absent the fraud, taking into account "all of
the known or foreseeable facts and circumstances which in any way
affected the value of the claim on the date of settlenent/.
1d. at 779, The amount received by the releasor in exchange for
signing the release is then deducted, and the balance constitutes
the “true messure of the danage suffered* inasmuch as “(t]he
ultimate fact to be ascertained is the actual damage caused by
the fraudulent representations and not the danage for the
see also Slotkin v, Citizens cas. Co. of
NewYork, 614 F.2d 301, 312-13 (28 Cir. 1979), cert. denied, 449
original injury." 3¢
U.S. 981 (1980) (holding that, under New York law, the plaintiffs
could recover as Garages the “fair settlement value" less the sum
they had received under the settlement; the true measure of
Ganages was “the difference in settlement value before end after
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discovery of the frau"); Dillev v. Farmers Ins, Group, 441 P.24
594, 595 (Or. 1968) (tif fraud had been connitted, the measure of
damages was the difference between the amount plaintiff received
in settlement and that she would have received by way of
settlement had the alleged false representations not been made");
Rochester Bridge Co, v. McNeill, 122 N.B, 662, 6€5 (Ind. 1919)
(same) .
The plaintiffs, however, urge this court not to follow
the aforementioned measurement of damages enunciated by the Ninth
Circuit and other jurisdictions because such *limited* remedy
(2) 4s “contrary to several significant policy concerns
expressed by this court in Matewure I and (2) ‘clearly deviated
from the goal of the available remedy -- to restore them to their
former positions they eccupied but for DuPont's deceit.* the
plaintiffs’ contentions are without merit.
In support of their position that the limited remedy
imposed by the circuit court is contrary te policy concerns, the
plaintiffs rely upon this court’s pronouncenent in Matsuura I
that limiting liability for fraud is unfavored in light of the
policy of encouraging settlenents. 102 Hawai'i at 155-62, 73
P.3d at 693-700. Specifically, the Matevure 1 court was
presented with the certified question whether, under Hawai'i law,
a party is “inmune from lisbility for civil danages based on that
party's misconduct, ineluéing fraud, engaged in during prior
Litigation proceedings{.)* Id, at 184, 73 P.36 at 692. In
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answering negatively to the inguiry, we examined several policies
underlying the litigation privilege, such as those promoting the
candié, objective, and undistorted disclosure of evidence,
avoiding the chilling effect resulting from the threat of
subsequent litigation, encouraging settlement, and discouraging
abusive litigation practices. Id, We essentially determined
that the policies associated with the litigation privilese
doctrine do not favor limiting liability in a subsequent
proceeding where there is an allegation of fraud committed in the
prior proceeding. 1d. at 155-62, 73 P.34 at 693-700. we,
therefore, concluded that, *[ulnder Hawai'i law, a party is not
immine from liability for civil damages based upon that party's
fraud engaged in during prior litigation proceedings.* Id, at
162, 73 P.34 at 700. The plaintiffs’ reliance upon the Matsuura
I's policy reasonings, however, is misplaced. The court in
Matsuura I wes not confronted with the issue concerning the
method of measuring Garages, but only whether a fraud action
based on a party's conduct in prior Litigation proceedings exists
in the first instance.
Furthernore, the plaintiffs’ argunent that the
Limitation of their Garages to the settlenent differential is
essentially contrary to the well-settled aim of compensation in
deceit cases, ie., "to put the plaintiff in the position he or
she would have been had he or she not been defravéed|,}" Zanakie-
Bice, 98 Hawai'i at 320, 47 P.36 at 1233 (citation and original
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brackets omitted), is unavailing. The plaintiffs argue that the
appropriate remedy i¢ to allow ‘the parties to determine what
damages they claim and seek to prove under the particular
circumstances of the claim." In other words, the plaintiffs
appear to assert that the proper measurement of their damages, if
the jury so determined, could be the ‘actual judgment value" of
their product liability claims (less the amount they received
pursuant to the settlement agreements) .
In support of their position, the plaintiffs cite to
Ei au Indiana v. 179 NB.28
760 (Ind. Ct. App. 1962), Siecel
ct. App. 2004), and Edrei v, Copenhagen Hendelsbank A/S. No. 90
Civ, 1860 (CSH), 1992 WL 322027 (S.D.N.¥. oct. 29, 1992)
william, 818 N.E.24 510 (Ind.
(unreported). the plaintiffs partially quote from Zam Bureau
mutual Insurance that the proper evidence of danages involves
‘the nature end extent of the injuries inom end forseeable (sic)
a[t) the tine of the settlement, under the particular
circunstances of the parties then shown existing.” 179 N.E.28 at
764. ‘The full quote, however, actually makes clear that the
sature and extent of injuries’ are pertinent only for measuring
the *conpromise’ value of the claim:
[T]he neaeure of donages must Lake into consideration the
delable valve of the Fight of ection
sromising, and the nature ané extent of the ins)
Kno and fereecable {eie) alt} the tine of the
under the particular
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eee
Id. (emphases added). In fact, Farm Bureau Mutual Insurance, an
Indiana appellate case, follows its supreme court’s Automobile
Underwriters case, which held that, when a plaintiff affirms the
ettlement agreement, his damages are the “probable amount" the
parties would have agreed upon absent the fraud, taking into
account ‘all of the known or foreseeable facts and circumstances
which in any way affected the value of the claim on the date of
settlement{.]* Automobile Underwriters, 53 .N.E.24 at 779.
Similarly, the plaintiffs rely upon Siegel to
demonstrate that the parties in that case proffered an estimation
of the potential jury verdict in the underlying claim as evidence
of damages. 818 N.E.2d at 513-14. The Siecel court, however,
was not presented with the issue as to what would be the proper
measure of damages. Rather, the issues before the court
concerned the sufficiency of the evidence to support a finding of
fraud and the weight of expert testimony. Id. at 515-17.
However, Seicel is encther Indiana appellate court case and,
thus, followed Automobile Underwriters in allowing the plaintift
to recover the “probable” settlement amount, absent fraud.
the plaintiffs’ reliance on Eérei for the proposition
that ‘[t]he case law is clear that[,] when a party is defrauded
into releasing a cleim against another party, the proper measure
of danages is the value of the foregone claim," 1992 wh 322027,
at *4, is also mieplaced, The Edrei court, in explaining whet
the “value of the foregone claim’ means, quoted Slotkin for the
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proposition that the “true measure of damages was the difference
between the settlement value before and after the discovery of
the fravd{.]* Id. (emphasis added) (citation omitted).
Accordingly, the plaintiffs have failed to provide any authority
that would convince us that the proper measure of damages should
be, as they contend, extended to the actual judgment value of
their product liability clains.’*
Indeed, as previously indicated, the plaintiffs hed
made an unequivocal and knowledgeable election of renedies to
affirm the settlement agreements and pursue an action for fraud.
However, the plaintiffs apparently sought to recover damages
based upon what they would have been able to recover in their
product liability suite against DuPont.” They cannot have it
% the plaintiffs also cite to number of cases that merely stand for
the general proposition that defrauded plaintifts are entitled co adequate
compensation or that the nescure of davages ig whatever losses were Sevelly
caused by the fraud or misrepresentation. For example, they ive to ane
provide parentheticale for the following ceses:
ch ie nea 1. 76 P38 66:
App. 2003] (plaintiffs entitled to ail danagee as
‘naturally, and proximately’ result fron the frevd); Matte
yu Erebbs, 962 P.26 387, 392 (1éaho 1996) (*[T]he victin of
Ereud is entitied co compensation for every wrong which ie
the naturel ané prexinate reeult of the fraud, The measure
of garages which should be adopted under the facts of a care
fe the one which will effect euch reault.*): See
Leavitt, 521 $..26 720, 612 (W.Va. 1998) (rit Se exienatie
thet (he plaintiff's measure of damages in a cause of action
for fraud woulé be Sny insory incurred es e result of the
Gefendant“e fraudulent conduct.) le]
tor. ee.)
‘These general principles le
ho support to the pleintiffe’ aforementioned
¥ puring the circuit court proceedings, the plaintitts’ discovery
ses confirmed thet they were claiming the totel product 15
ts Sune ¢, 2003 anewers to
(ont ined. =)
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both ways, i.e., affirm an agreement not to sue for such product
liability injuries and yet recover damages for those injuries.
In other words, they cannot accept the settlement money, sign a
release, affirm the release, keep the money, and then sue for the
same Gamages. As DuPont asserts, the plaintiffs ‘are seeking the
rescission remedy that, by their election to affirm their
settlenent contracts and sue . . . for fraud, is not available to
them.* (Emphasis in original.) See Morse/Diesel, Inc. v. Fid. &
Penosit Co, of Marviang, 768 F. Supp. 115, 117 (S.D.N.Y. 1992)
(stating the rule that a plaintiff cannot elect to pursue danages
for fraud ang rescission because ‘an award of camages for fraud
2, scontinued)
conpencatcry ané punitive damages which coulé have been recovered by [the
p)ieintiffe at trial of [their product liability cases], Dut for the
Eracdulent cettienent.* In their June 10, 2003 anewers to interrogatories,
the plaintiffs, in response to the ingviry as to how the “actual gettienent
Value* wee determined and what factors were considered in reaching the valve,
stared:
Please note that “actual settlement velue* of the
underlying [product Iiability] case Goes not represent a
Sstatenent of danages for this "litigation freud" action,
the current cleins seek recovery of the lorees caused bY
[DuPont‘s) fraudulent conduet, which include But are not
Limited to the onrecovered value of the proguct clain(.)
Indeed, in their opening brief, the plaintiffs indicated that ‘their clains
were not confined to the ‘actual settlenent value” [DuPont night have paid hed
Ie hot ected fraudulently]. The plaintiffe further state that DuPont
was well advised through discovery, and through [the firet
Gnended] Complaint, of the nature of damages. (the
piieintiffe lain. (The plaintiffs’) fravd count
Banages clained are the “nonetary injuries" caused by
DuPont's fraud. The fraudulent mierepresentetion, negligent
Slerepresentation ané non-disclceure elaine nore
specifically seek Garages “equal te the cifference between
the actus] settienent or Sudgrent value of their [product
Liability) laine and the actual value, if any, received for
uch elaine
ee the
to the first avended complaint onsttes.)
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affirms the contract” while *(rJescission vitiates the contract
and places the partiés in status quo prior to the transaction")
(citation omitted); Davis v, Harcete, 92 $.8.24 782, 786 (N.C.
1956) (holding that the plaintiff could not affirm the release
and recover the difference between the value of his original
claim and what he received in settlenent) .
Here, the plaintiffs had foregone seeking the actual
judgment value of their product liebility clains via rescission
\4 elected to affirm the
of the settlement agreements and inst
agreenents and seek danages in a fraud action, and, thus, their
election precludes them from seeking danages for the injuries
sustained in the product lability actions. To conclude as the
plaintiffs would have it would constitute an impermicsible double
recovery. If this court were to permit the plaintiffs to retain
the benefits of the settlenent agreements while seeking to
recover the actual judgment value of their product liability
claims, the plaintiffs would be in a better position than they
would have been had the settlement negotiations been conducted in
good faith. Such a result would be inconsistent with the aim of
compensation in deceit cases, i.e., “to put the plaintiff in the
position he would have been had he not been defrauded." Ellis,
51 Haw. at 52, 451 P.26 at 820 (citation omitted).
Accordingly, we believe that the method enunciated by
the pisebstine court and followed by the Ninth Circuit in Living
Desions is pereusive -- namely, that the trier of
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determines "the probable amount of settlement in the absence of
fraud after considering all known or foreseeable facts and
circumstances affecting the value of the claim on the date of
settiement(.J* Dissbatine, 635 F. Supp. at 355 (citation
omitted). Stated differently, *{t]he critical consideration is
the settlement value of the case on the date settlement was
reached.* Living Desions, 431 F.3d at 368. Consequently, we
hold that the circuit court did not err in concluding that the
measure of damages for the plaintiffs’ fraud action is ‘the fair
compromise value of the claim at the time of the settlement.*
Inasmuch as the plaintiffs submitted evidence in
opposition to DuPont's motion, we examine whether the circuit
court properly determined thet the evidence was insufficient, as
a matter of law, to establish the plaintiffs’ damages.
preliminarily, however, we must first determine whether, in
proving danaces, i.e., the fair compromise value of the claim at
the time of the settlement, attorney expert testimony was
necessary in the first instance.
c. the requirement of attorney expert testimony
Lisbility for freud, as for other torts, requires proof
of duty, breach of duty, causation, and damages. Hong, 5 Haw.
App. at 161, 683 P.24 at 840 (*[f)raud is 8 common-law tort");
Von Holt v. Izumo Teisha Kvo Mission of Hawaii, 42 Hew. 671, 722
(1958) (“Fraud in its generic sense, especially as the word is
used in courts of equity, comprises all acts, omissions|,] and
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concealnents involving a breach of legal or equitable duty and
resulting in damage to another." (Internal quotation marks and
citation omitted.)), overruled on other arounds by State v.
Pauline, 100 Hawai'i 356, 60 P.34 306 (2002). Specifically, to
establish a fraud claim based on a failure to disclose a material
fact,
there mst be (1) a representation of a material fact,
(2) sade for the purpose of inducing the other party to act,
i at 162-€3, 73 P.34 at 700-01 (citations
and internal brackets omitted) (emphases added). However,
DuPont's motion for summary judgment was premised solely on the
element of damsges, i.e,, the plaintiffs’ inability to prove
amages. In light of the circuit court’s ruling, it must be
assuned that the parties and the court presumed, for purposes of
sunmary judgment, that DuPont breached ite duty by disclosing
certain material scientific data and information that it knew to
be false, on which the plaintiffs reasonably relied and acted
upon to their detriment. Thus, the inguiry on appeal is whether
the plaintiffs have supplied the evidentiary showing of canages
necessary to defeat summary judonent.
According to the circuit court, to carry thelr burden
of proving camages, i.e., "the fair compromise value* of the
product liability claims at the time of settlement, the
plaintiffs ‘would need . . . expert lawyer testimony directed to
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the numerous compromise factors, and how they would have applied
to each [plaintiff's case.* The plaintiffs, however, argue
that
(Emphasis
(anphesis
provides that:
Moreover,
Tt has never béen the law in the State of Hawai"t that
expert evidence is a randatory element of a claimant's cese.
Nor hac it ever been required that such experts be of @
particular cceupation oF persuasion; it Se only necessary
that they be appropriately "qualified" to render an opinion
Which aeciste the trier of fact in ite eliberatione. The
(elircuit [cloure's ruling violated beth of these
established tenete.
omitted.)
In retort, DuPont contends that
determining the fair compromise value of a conplex products
Lfebility case, coking into consideration ail the facts and
circunstances of a particular case at a particular point in
Eine, is a complicated undertaking and something clearly
beyond the ability of a lay jury.” Gbvicusly, a jury should
pot speculate in an sree where i¢ could not be expected to
have sufficient knowledge or experience. And without preper
expert testinony, a jury would be specuiating because © Jury
Imply does not have the knowledge or experience to
determine the fair conpronise value of @ complex, products
ability action.
The Teason why expert testimony i required is
beceuse, unlike special and general cansges in ® typical
tort action, feir compromise value Ss not bered upon the
judgment of a reasonably prudent person, but the
a Feasonably prudent attorney. Clearly, whet ar
Knowledgeable’ an prudent attorney would do in a complex
producte Liability cave is beyond the experience of & ley,
Jury
in original.)
Hawai'i Rules of Evidence (HRE) Rule 702 (1993)
If scientific, technical, or other specializes
knowledge will cesist the trier of fect to understand the
evicence or to determine a fect in Semue, 8 witness
qualified es an expert by knowledge, ekiil, experience,
training, or edveation nay testify thereto in the form of an
opinion cr cthereive. in determining the iesve of
Steietance to the trier of fect, the court may consider the
rrostwerthiness and valigity of the selentifie technique oF
noe of analysis employed by the proffered expert.
this court has declared that:
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where the cubject matter is technical, scientific or
medical and not of common cbservation or knowledge, expert
Cestinony is allowed into evidence. Such testineny is to
‘aid the Jury in the determination of the issues involved and
fo provide sufficient basis for the conclusion to be éravn
by the jury rather than by conjecture snd cpeculaticn.
Expert testimony ie not conclusive and Iike any testimony,
the jury may sccept or reject it.
Rachran v, Morishiae, 52 Haw. 61, 67, 469 P.26 808, 812 (1970)
(citations omitted); see also State v, Batangan, 71 Haw. 562,
556, 799 P.24 48, $1 (1990) (Expert testimony assists the trier
of fact by providing @ resource for ascertaining truth in
relevant areas outside the ken of ordinary laity, Specialized
knowledge which is the proper subject of expert testinony is
knowledge not possessed by the average trier of fact who lacks
the expert's skill, experience, training, or education.*
(internal quotation marks ané citations omitted.)).
It ig well-settled that, in medical malpractice cases,
which have been generally predicated on the negligent feilure of
fa physician or surgeon to exercise the requisite degree of skill
and care in treating or operating on a patient,
the question of negligence met be decided by reference to
Felevant medical standarés of care for which the plaintiff
Carries the burden of proving throvgh expert mesical
Eestinony. The standard of care to which a doctor has
failed to adhere mst be established by expert teetineny
Because a jury generally lacks the requisite epecial
skgreund to be able to
craft vai" 287, 298, 893 P.24 138, 149 (1995)
(citations and internal quotation marks omitted). As this court
has stated,
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[In the ordinery negligence case[,] the jury can determine
thetner there hes been # breach of defendant's guty to the
Plaintiff on the basis of their everyday experience,
Sbeervatione{,] ané judment. The erdinary negligence case
Will not require expert opinion evidence to delineate
nderée of cere. Mewever, in
Jay Jurore are {li prepared to
cal data for the purpose of
Setermining whether professional conduct conformed to a
Fessonable standard of care and whether there ies causal
Felationship between the violation of a duty and an injury
fo the patient, Therefore, expert opinion evidence is
Seneraiiy required to aid the Jury in ite terke
Bernard v. Char, 79 Hawai'i 371, 377, 903 P.24 676, 682 (App.
1995) (citations, brackets, and emphasis omitted); see alse Carx
ws Strode, 79 Hawai'i 475, 486, 904 P.24 489, 500 (1995) (in an
informed consent claim, expert medical testimony is required to
establish the materiality of the risk of harm that in fact
occurs); Phillins v. Queen’s Med, Ctr,, 1 Haw. App. 17, 18, 613
P.2d 365, 366 (1980) (in a case for wrongful death of the
wif
plaintitt
expert medical testimony as to the cau
death was necescary to sustain case against defendant hospital
and physicians). Clearly, a jury of lay persons generally lacks
the knowledge to determine the factual issues of medical
causation, the degree of skill, knowledge, and experience
required of the physician, and the breach of the medical standard
of care.
unlike medical malpractice cases, cases involving
actions against attorneys “have rarely involved questions of the
necessity ané adni
ibility of expert testimony, probably because
in such cases the court iteelf sits as an expert on the subject.*
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collins v. Greenstein, 61 Hew. 26, 39 n.8, 595 P.24 275, 283 n.8
(1979) (citation omitted). This court, however, recognized that:
More attention will probably be given in the future to the
need for expert evidence. In nany types of situations such
ae letting the statute of limitations run before a suit 8
fied, no testimony of lawyer
is one of intersretation re iikely to be
iu
1d. 40 n.9, 595 P.2d at 283 n.9 (emphasis added). Although this
case does not involve an attorney malpractice suit, the stated
principle in Collins that an issue concerning the interpretation
of law requires expert assistance is appliceble here. In our
view, the determination of the fair value of what the plaintiffs
would have received had there been no fraudulent conduct at the
time of settlement entails guidance from legal experts.
Indeed, parties settle to avoid a trial on the merits
because of the uncertainty of the outcone and the high costs of
litigation. Gossincer v. Ass‘n of Apartment Owmers of Regency of
Ala Wai, 73 Haw. 432, 424, 835 P.2 627, 633 (1992) (noting that
public policy “favors the finality of negotiated settlements that
avoid the costs and uncertainties of protracted litigation")
(citation omitted). In every settlenent, the agreed upon arcunt
undoubtedly is not the "best case scenario" for either side, but
rather is a compromise of their respective positions to avoid the
multiple risks of trial where they might face their “worse case
scenario.’ Naturally, the compromise range of a claim will be
different at different points in time based upon what is known,
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——
or reasonably foreseeable, at the tine of the compromise,
including the state of the lew. In this respect, there are many
variables that experienced lawyers routinely consider in weighing
the potential risks and revards inherent in going forward with
Litigation against the certainty of @ compromise solution. This
court has enunerated sone of these factors in determining whether
a settlement was made in good faith, such ai
(2) the type of case and aifficulty of proof at trial, eas,
Fearsend motor vehicle collision, medicel malpractice
product 1iabilsty, ete.; (2) the realistic approximation of
Eotal Garages that the plaintiff secke; (3) the strength of
the plaintiff's claim and the reslistic likelihood of his or
her success at trial; (é) the predicted expense of
Titsgacions (5) the relative degree of fault of the settling
tortiesecrs; (6) the sncunt of coneiGeration paid to settle
the eleiss! (J) the insurance policy linies and solvency of
the Joint tortfeasers; (&) the relationship anong the
parties and whether it is condu
Conduct; ané (9) any other evie
Sined at injuring the intereste of @ non-settiing tortfeasor
or motivates by ether wrongfel purpose.
Trover v. Adame, 102 Hawai'i 399, 427, 77 P.3d €3, 112 (2003).
In other words, whether the fair settlenent value would have been
greater than the actual settlenent itself is @ matter that would
be nearly impossible for a lay person to determine without
guidance from expert legal testimony. Moreover, the fact that
the settlenent wes less than the potential recovery in the
underlying product Iisbility cases does not mean that the
plaintiffs suffered danages as a result of fraud. Rather, the
fred Gamage claim would be the difference between the fair
settlenent value absent frevd and the amount of the plaintiffs’
actual settlement. As one court indicated:
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‘The fact that proposed cettienent may only amount to
fraction of the potential recovery does not, in and of
itself, mean that the proposed settlenent is grossly’
inadequate and should be disapproved. in fact.) there Se
no resson, ot least in theory, why & satisfactory settlenent
could not’ anount to a hundredth or even a thousandth part of
a single percent of the potential recovery.
‘In_xe Warner Conme'ns Sec, Litia., 618 F. Supp. 735, 745
(S.D.N.¥, 1985) (quoting City of Detroit v. Grinnell Corp., 495
P.2d 448, 455 n.2 (24 Cir, 1974)) (ellipsis and other citations
omitted).
For these sane reasons, the question whether DuPont's
fraudulent misrepresentation caused damage to the plaintiffs in
this case by preventing them from receiving the “fair compromise
value* of their claims is one upon which the trier of fact must
be guided by expert lecal testimony. Accordingly, we hold that
the circuit court did not err in concluding that “expert lawyer
testimony directed to the numerous compromise factors, and how
they would have applied to each (p]laintiff’s case” is required.
the plai + fail ir bur:
Proof as a matter of law
We next address whether the plaintiffs produced
sufficient evidence -- in the form of expert testimony -- to
defeat summary judgment. Preliminary, we recite the well-settled
legal principles governing motions for summary judgment --
specifically, that
eumary 4 tion challences the very existence or
Jecai_eutts £ the claim.
Bderensed. in effect, the soving
thet he oF she fs entitied to prevail becav
oppenent hae no valid claim for relief or defense to the
Section” Xecoresngly,
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Senonstrating the absence of =
he a
reat case went to triai [1th
ns tent eva a jusmment for bi
ch
= (1986) (a-carty moving for sumary sudenent under
federal Rules of Civil Procedure Rule 56
esate his-or her crsonenk‘s claims, but need only goint out
‘that there te {an]-abeence of evidenes to supsors the
‘Supeent‘a cling), For if no evidence covle be mustered to
Sveeain the rermeving party's position, © trial would be
Seeleee.
‘Wien a notion for summary juégrent is rade and
supported,
‘an adverse party may not rest upon the mere
Silegations or denials of his or her pleads
but hie or her reeponte, by affidavite or a
otherwise provided in HRCP Rule 56, met set
forth specific facte showing that there is a
Senulne iseue fortriel. if he oF ene doet not
0 respond, sunnary judgment, if appropriate,
Shall be entered egainst him’ or her
WRCP Rule S6(e) (2998) (emphasis added). In other words, a
fetor fone thar
‘can prodice some evicence at that tine. On notice for
Suimary judgsent, the evidence is viewed in the Light most
favorable to the non-noving party.
Young v. Planning Comm'n of the County of Kaua'i, 89 Hawai'i 400,
407, 974 P.24 40, 47 (1999) (internal quotation marks, citation,
and original brackets omitted) (emphases adéed). Moreover,
“(t]he evidentiary standard required of a moving party in meeting
its burden on a summary judgment motion depends on whether the
moving party will have the burden of proof on the issue at
Qcwen Fed, Bank, FSB_v, Russell, 99 Hawai'i 173, 162, 53
P.34 312, 321 (App. 2002) (citation omitted). where the moving
trial.
party is the defendant, who does not bear the ultimate buréen of
proof at tril
party=plaintitt
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{nile to make a showing sufficient to establish the
Sn such @ situstion, there can be no genuine {neue os to any
material fact, since a conplete failure of proof concerning
fan extent ial elenent of the nomoving party's case
hecesearily rendere all other facts immaterial. the moving
party ie entitled to judgnent ae a matter of low because the
Pennoving party hae failed to make « sufficient showing on
‘essential elenent of her case with respect to which che
hae the burden of proof
dally, State, 7 Hew. App. 274, 264, 756 P.26 1048, 1055 (2988)
(emphasis aééed) (internal quotation marks and citations
omitted). Bearing the foregoing principles in mind, we now turn
to the issue at hand, i.e., whether the plaintiffs’ expert
reports ere *legal{ly] sufficient)" to sustain their clains
against DuPont such that, “if the case went to trial[,) there
would be . . . competent evidence to support @ judgment’ in their
favor. Young, @9 Hawaili at 407, 979 P.24 at 47 (internal
quotation marks and citations omitted).
Im this case, the plaintiffs proffered reports of their
economic expert and attorney experts as evidence of damages. AS
indicated above, one factor anong many relevant fectors in
Getermining the fair compromise value of a particular claim on
or lack thereof -- of
the date of settlement is the validity
the plaintiffs’ claim for dameges at the tine of trial: “The
nature of the injuries in the foregone tort action are relevant
only to the extent of how they would affect the value of the
Disahatino, 635 F. Supp. at 355
Indeed, such factor requires the application of economic
principles to ascertain the reascnably certain future
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income/profits of the plaintiffs in a particular market, and,
thus, economic experts would likely be necessary to aid the jury
in determining the underlying tort damages at least in the
affect the settlement
context of how those économic danagi
value, if at all.
The plaintiffs’ economic expert reports (prepared by
David J. Weiner of Valvoulis and Weiner) revealed that Necully
in the sum of $11,647,889.00, Willman in the
sustained danagi
in the sum of $967,222.00, and the
sum of $3,278,202.00, 1
Takas in the sum of $649,871.00, weiner calculated the total
value of each plaintiff’s underlying product liability claim,
beginhing with the alleged first day of Benlate loss through June
2005 -- ten years after their settlements, However, the
submission of the economic reports does not negate the fact that
the plaintiffs are also required to adduce evidence -- via
attorney expert testimony -- as to the factors that must be
considered when determining the fair compromise value for each of
the plaintiffs’ cases. In that regard, the plaintiffs presented
reports from five attorneys, designated as experts, four of whom
had litigated the underlying product liability actions. They
were: (1) Wayne D. Parsons, who elong with Kevin A, Malone” (a
Florida attorney) represented Isa and the Takas; (2) J. Richard
arly eitueced plaintiffs in Hewa's
ang Floriée and in ther cases filed ecrose the country." Netsvure 2. 102
Rawai's oe 181, 73 P.3@ av 68
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Peterson, who represented Willman; (3) Judith Pavey, who
negotiated Willnan’s settlement; (4) George W. Playdon, Jr., who
represented McCully; and (5) Jeffrey S. Portnoy, the only
designated expert not involved in the underlying product
ability cases.
According to the circuit court, however, the
aforementioned attorney expert report:
discussed more fully
infra, were insufficient as a matter of law to establish the
plaintiffs’ damages. Specifically, the circuit court ruled tha
[the pllaintifte have not submitted the expert veetinony
required to eustain their burden of proof on the proper
nescure of danages in their cares, The deadlines for [the
Pliaintiffe to subst their finsl expert reporte and anend
Eneir pleadings were October 18, 2004, and december 14,
2006, Feepectively. This court previcusly nade clear that
Expert reporte were to be final ané that the experts would
not be allowed to testify on matters beyond their respective
Feports in its Oréer Related te Trial Procedures, filea May
6, 2006. "(The pliaintiffe are therefore unable to prove the
fact or ancunt Of ettlenent fraud caneges as a matter of
aw, and summary judgrent is granted on all remaining claine
herein.
(enphasis omitted.) The plaintiffs, however, contend that the
circuit court ‘ignored the numerous expert attorney
[declarations which [the p}laintiffs did, in fact, submit to
substantiate their danages.* he plaintiffs argue that their
legal experts *averred that the valuation of (the plaintiffs’
cases would have been substantially higher had the truth of
DuPont's duplicity been known.* Conversely, DuPont maintains
that the plaintiffs
cennot establish [Jesther the fact [Jor the amount of
Gerage. (The plaintiffs) cannot meet this buréen for a
Variety of reasons, the pertinent one here being that they
Sinply connot prove the correct measure of {reud ersce
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based upon the way they have positiened thi
have no expert testimony to provide 2s6ie'
fon how to evaluate [the] fair compromise value of each [of
the plaintiffe’] eleine, what the pertinent settlenent
factore would be ang how they would be applied in this
hor what methodologies could be used to determine what those
‘snounts should be.
(emphasis omitted.)
As previously stated, although the determination of
Ganages is an ultimate issue to be decided by the trier of fact,
Ganages must be based on evidence that shows loss with reasonable
certainty and eliminates speculation. Chung, 62 Haw. at 605, 618
P.24 at 291 (*(T]he rule that uncertainty as to the snount does
not necessarily prevent recovery is not to be interpreted as
requiring no proof of the amount of damage. The extent of
plaintiff's loss must be shown with reasonable certainty and that
excludes any showing or conclusion founded upon mere speculation
or guess.* (Citation onitted.))
Parsons’ report described the documents that were not
properly produced during discovery in the product liability ca
by DuPont and contended that these docunents ‘would have proven
or tended to prove that Benlate caused the damages and losses to
crops suffered by [his] clients.‘ Parsons, therefore, concluded
that the concealed docunents would have ‘increased the strength
of the liability cases for (the p)laintiffs* and the plaintitts
swould have been in @ stronger position regarding settlenent.*
Parsons further concluded thet:
‘The decision of whether to settle the cese for the snount
Cfferes by DuPont to en individual client, or to take the
case to tris) before jury is ultimately the decision of
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the client
5 joreing the srcpeeition that
‘Benlate could couse darage to my cliente crops would have
reduced the risk of going to trial. ‘The client would have
een informed about the riek of going to trial in terms of
the strengeh of the (pllaineiffa’ liability elaine se well
ae the strength of the cliente’ damages cleine. If the’
rad to take the cia:
Knowing the [concealed docimentel would fave made the
plsintiffe’ csse stronger wnen taking an individval case to
‘Axial if the client reiected Dupont’s settlenent offer.
(Emphases added.)
before n-any event. and
Peterson's report opined that, had he and his client,
Willman, had the concealed information, *it most definitely would
have a substantial difference in [their] analysis of
Lability/causation in the case against DuPont. The information,
taken as a whole, would have greatly strengthened Mr. Wilinan’s
claim that Benlate was defective and the cause of hie crop damage
and loss.* Peterson believed that had
Willman now_in_Sentesber 192¢ a} the informationt.1 be
Bndagse to trial. The information is strong ond persuasive
that Benlere wae defectivel.) ..... Wiliman's case would
have been substantially stroneeri.j
(mnphases added.)
Pavey’s report averred that:
Tt has been 10 years eince we settled those cases, but 7
recall [that] we discueted and applied the came range of
probability of winning on negligence/product defect to #1)
[ability ascessnent was nade on the basis of the
evidence which had been produced by DuPont, evidence
Geveloped by us a6 of the time of tettienent and, te sone
extent, on pricr trial ané settienent cuteones. It ie clear
forme that DuPont fraudulently withheld significant evisence
from us an even more from plaintiffe who tried or settled
their cates pricr to the tine cur cliente settled.
fraudyi ent:
wit i rie6 oricr t
Shur settlerent.-Dufont would probably have teat ail ef those
‘sree on the sence and product defect. =
fet thet gone of the ca
Knew fore that settled pricr to
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our cares would have either been gettied for eubstantially
higher sune or gone co trial had DuFont vefuced to pay @
fair eettlenent{.
‘we Fepretented many clients, sone of whom had a
lengthy track record of Being successful nurserymen and
Earmere, other who 62 not. ‘There were Sndividval causation
and dansges issues that algo figured into our settlesent
fvalustione. However,
u findin
i slustior
"i ‘because, typically,
ie ig true that the stronger the liebility case, the nore
valve both sides assign to any canagen claim.
(Emphases added.) Playdon also stated that, in his opinion, “the
concealment and/or misrepresentation of factual information by
DuPont inpaired [his] ability to fairly evaluate the status of
(his) client's [product liability] litigation.’ He asserted that
the information would have made a ‘substantial difference’ in his
garding “the strength of the liability/cavsation
analysis
cases" against DuPont. Playdon concluded that, if the
information had been properly disclosed, he "would not have
reconmended {his} client settle his claim for the anount DuPont
offered during negotiations* becau:
{S)m (his) opinion, she valve of Ihiel cliente economic
Geses creat! 3 which
no 'In (his) opinion, assuming timely and
Sppropriate access to all of the infornation{,] and further
fetelenent consideration orester than that which wae in fact
rz ve taken the eli
(Emphases added.)
Lastly, the plaintiffs indicated in their answers to
DuPont’s June 4, 2004 interrogatories that “Portnoy’s opinion
will not be based on any particular documents of [the plaintiffs)
relating to the prior Benlate product litigation, but will be
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based on [the] general litigation experience of Mr. Portnoy.
consequently, in his report, Portnoy explained the general
Litigation and settlement practices and concluded that *had (he)
been representing these clainants, the settlenent value of the
cases would have been draratically impacted had the wrongfully
withheld information been available and ‘would have
significantly increased.*? In eum, the plaintiffs’ experts
offered es:
intially two opinions, to wit, that, if the plaintiffs
and/or their attorneys had known about the concealed evidence,
(2) they would not have settled and would have proceeded to trial
and (2) the valuation of the plaintiffs’ cases would have been
“eubstantially higher.*
Viewing the evidence in the light most favorable to the
plaintiffs, as the nonnoving party, Lau v, Bautista, 61 Haw. 144,
147, 598 P.24 161, 163 (1979), we agree with the circuit court's
implicit ruling that the plaintiffs have not demonstrated the
existence of a genuine issue of material fact as to damages to
defeat summary judgment. As indicated above, the plaintiffs’
attorney experts merely presented conclusory opinions that would
do little to assist @ jury. Of crucial importance is the fect
© tn thelr anewers to DuPont's interrogatories, the plaintifts sso
steted that Stanley Reehrig, couneel for the plaintitfe in another Benlate
product iebility cese, Kexcnate Ferme, inc. v. United seri Ereds., 66 Hewes't
Bie, 948 P.26 2055 (1997), "ney be celled to testify regarding the nature of
Garages cleined in thet action, and the darages awarded by the Sury in that
action.” he record ces not reflect that Roehrig cubsitted
expert ining that he would De permitted to tee
Roehrig's testinony would be directed only es to whet another jury ¢i¢ an
another cose
ty.
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that none of the attorney experts provide any opinion testimony
to what specific settlement factors were or should be
considered in settling each of the plaintiffs’ underlying product
liability cases and the evaluation of how those factors would
have been altered had they known about the concealed evidence.
Although the plaintiffs have filed their claims jointly, they
each have separate claims against DuPont, and each of their
claims must be individually established. The experts did not
explain how DuPont's conduct affected the plaintiffs’ evaluation
such that they would have settled for more, what each plaintiff
claimed as his damages in the product liability cases at the tine
he Settled and what he recovered, and how the settlement factors
would apply to each plaintiff's cese. It is not sufficient for
an expert to simply state that he or she believed that, had the
concealed evidence been known, the settlement value would have
been greater because the existence of the concealed evidence
strengthened the liability aspect of the litigation. See Accba
v.Gen. Tire, Inc., 92 Hawai'i 1, 14, 986 P.2a 288, 301 (1999)
("Although expert testimony may be more inferential than that of
fact witnesses, in order to defeat a motion for summary
judgment [,] an expert opinion must be more than a conclusory
aegertion about vltinate legal issues." (Internal quotation
marks and citation omitted.)); see, e.g,, Zelinski v, Brunswick
Corm., 185 F.34 2321, 1317 (Fed. Cir. 1999) (ruling that the
federal district court properly characterized patent attorney
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expert's statenent as conclusory because the statement was an
assertion without further explanation); Philline Petroleum Co, v.
Huntenan Polymers Corp., 157 F.34 866, 876 (Fed. Cir. 1998)
(reasoning that conclusory expert declarations devoid of facts
upon which the conclusions were reached fail to raise a genuine
issue of material fact to resist sunary judgment); Burrow v.
Arce, 997 8.W.24 229, 235-36 (Tex. 1999) (holding that the
attorney expert affidavit stating that he considered the relevant
facts and concluded that the settlenents were fair and reasonable
was conclusory because he did "not explain why the settlements
were fair and reasonable for each of the (plaintiffs) (emphasis
added); Griswold v. Kilpatrick, 27 P.34 246, 248-49 (Wash. ct.
App. 2001) (the plaintiff's expert testimony that, but for the
Gelay in prosecuting the case, the claim would have settled for a
larger sun was speculative and conclusory and therefore
insufficient to create a genvine issue of material fact ina
legal malpractice case). The unsubstantiated conclusions of the
plaintiffs’ experts are insufficient to raise 2 genuine issue of
material fact that would preclude summary judgment." The
sertion that, *[elven if
‘alculating éanages, [the
Me are unconvinced by the diesent's bald
the ‘fair compromise velue’ is used ae a basie for
piieintifte have eutficiently identified ‘compromise factors’ to pur the "fair
Conpronise valve’ in issue," L.e., creating "genuine issues of ssterial fact
be to the faiznese of the prior settlenent|-]* Dieeent Op. at 17. The
Elesent feile to cite to eny authority in support of its position that the
Conclusory statenente found in the aferenentioned attorney expert reports are
Sufficient to create cenuine Jerues of saterial fact. instead, the dissent
sisply and inferences mist be viewed by this court in
Ligne more Ip)laintiffe.*” internal quotation
fake, citation, and oripinal srackere omitted.) 1d, Although the aiesent
(wont inved:.-)
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ee
circuit court properly concluded that the plaintiffs are ‘unable
to prove the fact or amount of settlement fraud damages as a
matter of law." Accordingly, we hold that the circuit court was
correct in granting stmary judgment in favor of DuPont.’
H(.. continued)
correctly relates the principle in reviewing an avaré of sunnary judgment,
Such principle Goes not negate the fact, as the Gievent even acknowl edat
that expert afficavite ‘oust at least include the factua) basis and the
os " inorder to defeat a
Ebtion for sumary sodgnent- (Enprasie added.) (interne) quotation rarks
Gnd citation omitted.) id, at 16 n.4. Yet, the diccent mistakenly believes
that the expert reports, whieh merely ‘opined that the settlenent value was
Higher than that fer which the case wae previously settled, were clearly based
wiepSces and inference drawn thereon." id. As stated above, for plaintiffs"
Gtperts to opine thet the plaintiffe would not have settled
frbceeded te trial hed they known of the concealed docunents
Rencealed inforration would have increseed the strength ef their product
STability cecee, does not render such opinion sufficient to identify the
Rnpronize factors of the plaintiffs’ particular cases, Sven seeuning, but
Sot agreeing, that the attorney expert reports sufficiently identified the
Conprenise factors, the reports fail to eet forth how these factors epplied to
Gach of their cases
Moreover, the dissent, relying upon HRE Rule 702 (governing
saniesibility of expert testimony], points out that the sttorney expert
Spores ‘would have been sdnieeible st trial-* Discent Op. et 12, 16. We
Etagree, Ae previously quoted, Rule 702 provides in relevent part that “(4)E
SEER Mic, “Eethniced. cr other specialised knowledge wil} assist the trier of
a seidencs
Gualifiee ae fence, training, or education
Sey cestify thereto in the form of én opinion er otherwise." (Biphasis
Gaded:) Ae Siscuseed supra, the plaintiffe’ attorney experte’ reports sinply
Gonsiated ef conclusory opinions, which would have provided "no assistance to
She Jury. snd therefore, should not be agcitred” pursvant to HAE Rule 702
Entangan. 13 Haw. at S56, 799 P.2d at $2 (observing that, expert testimony
sreeneeely stares s iegel conciveion ané that Goes not assist the jury in its
Getermination ip excludable under Rule 702)
She plaintiffe sdditionslly argue that the circuit court's ruling
exceeded the bounds of reson and disregarded rules or principles of law or
Stectice to the plaintiffe’ substantial detriment. First, the plaintiffs
REintain that, at the gene tine DuPont vas asserting that the proper nessure
Of damages was the fair conpromiee velve, it reserved the right te argue that
Sich danages were speculative. Durent, sowever, contends thet, bec
[eine contrelling Hewas's lew, ic reserved the right to later arg.
Hinority petition that eettlenent fraud canages are isherentiy speculative:
Honethelere, the plaintiffs do not explain how DuPont's reservation would
Prejudice tien. Feccnd, the pleintiffe argue that they were prejudiced by
Elfont's inconsistent position throughout thie 1itigetion that ii "would never
Fave poid ony nore te Settle the pleintitfe’ elaine than wes in fact pase sn
Eettienente'? ogein, the plaintiffs dié not explein how they were prejudiced
fy'bofont's aecerticn and euch ersertion is irFelevant to the determination of
Teontinved. .-)
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Notwithstanding the foregoing, the plaintiffs maintain
e
that:
At the tine [they] responded to DuFont's discovery, and
Submitced their final expert reporte for trial, 1)’ they
believed (and till believe) that Hewe!'i lew allowed for
recovery of the losses they sustained tnaturally” and
“proximately” from DuPont's misrepresentations, without
alnitation.” their trial preparation reflected th:
expectation of the availability of general damages for
fraud.
=-continved)
the iecuec in this appeal. Third, the plaintiffs contend that they were
prejudiced because DuPont's experte did not offer opinions on the fair
Ecuprenise value in their written reports. Indeed, the aicsent takes desue
with DuPont'® attorney expert reporte, stating that
Zt would be frente to sustain sunnary judgment in this
because epperently [DuPont] itself never named an expert
sttorney regarding “fair compromise value" factors pric: to
the expert Seadline and before the court's summary Judgment
ruling.
Dissent Op. at 18. However, a€ DuPont points out, the burden se upen the
plaintiffs to prove damages, and the pleintsff® cannot complain thet DuPont,
814 not establish & prina facie elenent of ease. Ae
previously stated, DuPont, a5 the moving perty sn ® notion for sunmaxy
Susgment, may discharge (ies) burden by Genonstrating thati.) if the cose
ent to trial{,] there would be no competent evidence to support a judgment
for (the plainciffe).* Young, 69 Yawaii at 407, 97¢ P.2d ee 47 (estation
omitted); gee alse 10A Wright, Miller k Kane, and Fri
e2727, et 47 (1598) (7[I}e ie not necessary for the wovant to
Shereduce any evidence in crder to prevail on surmary judgment. Ratver, at
Least in cases in which the nonmoving perty will besr the burden of proof at
trial, the movant can seek summary judgeent by establishing that the opposing
party has insufficient evidence to prevail ae a matter of lew[-)*);
103 Nawai"i 468, 63 P.36 731 (2004) (cA® the Federal
Riles of Civil Procedure are substantially cimilar to the RCP,“ “this court
can lock to parallel federal lew for guidance.* (Internal quotation marke and
citation onitted.1)
Finally, the plaintiffe argue that they were prejudiced because Duront
arcerted attorney-client privilege regarding their analysis of the plaintiffs’
Underlying product 2iability ceses. Novever, the discussions between Duront
fang ite etterneys have no relevance to the ceterminetion of the fair
Eettlenent value. the pleintitfe provide no explanetion et to how they were
prejudiced by Dufont's cesertion of privilege,
ag previously indicated, the parties hed submitted their tina)
srt reporte by the tine DuPont Ercught its notion for summary judenent
Dated on the plaintiffs’ inebility to prove damages. The cireust court had
aleo nade clear thet the parties’ experts would not be allowed to testify on
attere beyond their respective reperte
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+ [T]he possibility of the {elircuit {elourt
imposing a'linited seettienent fraud" Teredy vas unknown to
the parties and wae not foreseeable under Hawaii law at the
Eine [the plaintiffs obtained their reporte, and anewered
Giseovery(")
Consequently, the plaintiffs request that, *{sJhould this [clourt
ultimately adopt the settlement differential as the prevailing
measure of damages,* i.e., the fair compromise value absent the
fraud, they should “be given the opportunity (on remand) to make
an appropriate record for such purpose." Stated differently, the
plaintiffs believe that, because it was "unknown" and *not
foreseeable" that the circuit court would adopt the fair
compromise value as the measure of damages in settlement fraud
actions, their case should be renanded to allow their legal
experts an opportunity to present their opinions regarding the
fair compromise value of the case absent the fraud.
In the instant case, DuPont filed a motion for summary
judgment, aeserting thet the plaintiffs’ danages were limited to
the ‘fair compromise value of their released tort claims at the
time of settlement. In opposition thereto, the plaintiffs
maintained -- as they had up to the time Duront filed the subject
motion for eunnary judgment -- that their éamages should not be
so restricted and should be extended to the judgment value of
their released claims, In giving the benefit of the doubt to the
plaintiffs, we presume that DuPont's theory of damages was either
first raised, or only became clear, upon the filing of its motion
for summary judgment. Therefore, it can hardly be said, es the
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plaintiffs contend, that it was “not foreseeable" for the
circuit court to conclude that the measure of danages would be
the fair conpronise value, especially in light of the arguments
advanced by DuPont in ite motion for summary judgment.”
Clearly, this is not a case where the circuit court gua sponte
rendered an outcome that could not have been expected by the
parti
More importantly, the opportunity the plaintiffs now
seek, i.e., to allow their experts the opportunity to opine
value of the case absent the fraud,
regarding the fair compronis
was available to them, via HRCP Rule 56(f) (2007), at the time
the circuit court was considering DuPont's motion for sunmary
Judgment. HRCP Rule 56(f) states that:
Shoulé it appear from the affidavite of party opposing the
notion that the party cannot for reasone steted present by
affidavit facts exvential to justify the party'® opposition,
2 speliestion
r lecovery to be be
(Emphases added.) Rule 56(f) -- like its federal counterpart,
Federal Rules of Civil Procedure (FRCP) Rule 56(f), -- provides a
me @iesent contends that *[1Jt was not until the Februsry 28, 2005
corer, i.e.) the crder granting Dufont's motion for eumary judgrent,| that,
the pilaintitfe were nade cware of the specific standaré to which these
reeponse would be held. Dissenting Op. at 8. Mewever, the Giceent faile to
fake into secount that the plaintiffs were placed on notice of iduPent
position on damages ~~ at the latest ~- when Dufont filed ite notion for
Eumazy judgment. Father, the ditrent Ealély and mistakenly stetee thet the
fact *ic}hat {the p)leintitts nay have been put on notice of Dufont'® position
ae nothine to de with th ithe plieintifte were not
iwire of the specific camages hat would be adopted by the ceure
Until the Febroery 28, 2008 order." 34. (erphesis added) internal quotation
ris and citation to’ the ralerity opinion emitted) Inesd, ae incicated
nize, the plaintiffs cannot wait until efter Dufont prevaile on ite stated
theory to seek an alternative renedy.
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mechanism for litigants to seek a continuance or avoid summary
Judgment when they “need{] to discover essential facts" to
justify their opposition. Hall v. State of Hawai'i, 791 F.24
759, 761 (9th Cir. 1986) (stating that FRCP Rule 56(f) empowers
the court to continue or deny a motion for sumary judgment “if
the opposing party needs to discover essential facts* to justify
the opposition) (citation omitted); see also Stallard v, Consol.
Maui. Inc., 103 Hawai'i 468, 475, €3 P34 731, 738 (2004) (vas
the (FRCP) are substantially similar to the HRCP, we look to
federal case law for guidance.*). The purpose of Rule S6(f) is
*to provide an additional safeguard against an improvident or
premature grant of summary juégnent.* Brice v, Gen, Motors
Corm., 931 F.24 162, 166 (2st Cir. 1991) (internal quotation
marks and citation omitted). Moreover,
[e]he rule should be applied with a spirit of liberality.
Although Siscovery neeé not be complete before a case 18
Gienieeed, cunnary judgment is proper only if the nonnovant
bas had adequate tine for discovery. To this end, Rule
S6(t) allows a Farty to request « delay sn granting suery
Sudgent if the part
thea =
Rexty is required to show what specific facts further
‘Siscovery nicht unveil
McCabe v. Macaulay, 450 F. Supp. 2d 928, 933 (N.D. Towa 2006)
(emphasis added) (internal quotation marks, citetions, original
brackets omitted) (fornat altered); ral Tire, Inc.,
92 Hewei'i 1, 11-12, 986 P.28 268, 298-99 (1999) (an MRCP Rule
56(£) affidavit must provide valid reesons why @ continvance is
necessary and denonstrate specifically how postponenent would
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enable rebuttal); Josue v. Isuzu Motors Am, Inc., 87 Hawai'i
413, 416, 958 P.2a 535, 538 (1998) (came). In sum, the circuit
court has the discretion to “deny the motion for summary
judgment, order a continuance for additional discovery or make
‘such other order as is just.‘* densen v, Redevelopment Agency
of Sandy City, 996 F.2d 1550, 1554 (10th Cir. 1993) (footnote
omitted); se@ also Josue, 87 Hawai'i at 416, 958 P.24 at 538 ("A
[circuit] court’s decision to deny a request for continuance
purevant to HRCP Rule 56(f) will not be reversed absent an abuse
of discretion. (citation omitted.)).
Here, rather than request a continuance of the hearing
“to permit affidavits to be obtained or depositions to be taken
or discovery to be had or . . . [to seek] such other order es is
just,’ HRCP Rule S6(f), the plaintiffs continued to assert their
contrary position on damages, disregarding DuPont’
position and
the fact that the circuit court might be persuaded to adopt
DuPont's view of the measure of damages. Having failed to
request @ Rule 56(f) continuance, the plaintiffs cannot now
complain that the circuit court -- based on the submissions by
the plaintiffs -- granted summary judgment in favor of DuPont."
MWe are mindful that, at the tine DuPont filed the subject notion for
sumary jvégent, final expert reporte had been submitted pursuant to the
Circuit court's pretrial echedul ing oréer and that the circuit court hed
Geclared that testincny outside of the experte’ respective reports would not
be allowed. Indeed, the dissent go cheerves and contends that the pretrial
scheduling order "thus barred the possibility of a continuan
Elecovery* Dissenting Op. at 2) ‘footnote emitted). However,
Rule Se(f) "should be eppiied with a epirit of liberality,” uecCabe.
Supp. 2 at 935, and given the wide discretion efferded vO the cafe
(cone ined. =.)
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Weinbera v. Whatcom County, 241 F.3d 746, 751 (th Cir. 2000)
(internal quotation marks, citation, and original brackets
omitted) (interpreting FRCP Rule $6(f) and holding that the
istrict court properly granted summary judgment in favor of the
defendants when the plaintiff ‘never moved the court under Rule
56(£) for additional time to obtain expert testimony necessary to
substantiate his allegations of damages"); see also Pasternak v
gar Petroleum Exploration, Inc., 790 F.2d 628, 832-33 (10th Cir.
1986) (‘where a party opposing summary judgment and seeking a
continuance pending completion of discovery fails to take
advantage of the shelter provided by Rule S6(f) . . . , there is
no abuse of discretion in granting summary judgment")
keg Josue, #7 Havas! at 616, 958 P.2@ at $38 (citation enitted)), to “make
fueh other order ee is Just," MRCP Rule S6(f), eny grant by the cirevit court
Sta continvance to allow further Giscovery ahd the submistion of additional
Evidence from the plaintiffe' experts to rebst DuPont's position would have,
Sn cur slew, Sndiceted the circuit court’s implicit ruling that ite prior
STnitacion on expert testineny would be lifted with respect to the additional
evidence. See Spiller v. Ella Suithers Geriatric Cer., 919 F.24 338, 343 (Sth
Elz 1990) ‘Uindicating that, by allowing defencent to nove for summary
Sudment after cot-off date for pretrial motions, district court impliedly
Granted notion to anend scheduling créer). Thue, the dissent ’s contention
Shee Siche plisineif#e coulé not have eppropziately saved to, continve the
Gecision on [Dupont] ‘s motion for sumary judgnent,” dissenting op. a
Secieion on te Circuit court's pretrial achedsling order everiots’ the plain
Feeding of SRCP Rule 56(f), which confers upon the circuit court the authority
to snake euch other order se is just.’ voreover, although the deadline for
Eitelesion of expert reports had expired by the tine the circuit court entered
fee ruling on DuPont's eurnary Sudgrent, i.e., on Tebruary 26, 2008, the
Alecovery cot-off had net yet expired. ‘the diecovery cut-off date was set for
April 24, 2008)
The United States Court of Appeals for the Third Circuit, in Mid
South Grizzlies v. Nations) Foothal League, 720 F.26 772 (34 Cir. 1963),
SSUD thet treet courte which have coneicerea the iesue agree that [compliance
With the requirenente of Rule S6(f}) ie necessary for the preservation of
Fale Sete] “contention that eunmary’ Judgnent should be delayes pending further
Bitcovery" and cited to a cellection of cases for the eforenenticned
proposition. 28, et 760.n.6
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To permit the plaintiffs to now establish another
record relating to the proof of danages, after unsuccessfully
maintaining their position and failing to take advantage of the
Rule 56(£) remedy available to them, would entitle them to two
bites of the apple.” Daiichi Hewai's Real Estate Corp. v.
Lichter, 103 Hawai'i 325, 348, 82 P.34 411, 434 (2003) (in an
action seeking to vacate the arbitration decision, this court
stated that it “cannot accept that parties have a right to keep
two strings to their bow -- to seek victory before the tribunal
and then, having lost, seek to overturn it for bias never before
claimed"). Accordingly, in our view, the plaintiffs waived their
% Given the renedy available pursuant to HRCP Rule S6(f), we cannot
agree with the dissent that "the only opportunity [the p)laintiite would have
hed to acquire expert testinony re-evaluating their fraud elaine ‘ould
have been after the court nade its February 28, 2008 order granting summary.
judgnent.*" (bsecenting Op. a 26 (bold enphasic added) (underscored enphasis
in origins)
Moreover, the Gissent"s contention that, "per the Febrvary 28,
2005 order, [the circuit court) was not disposed to grant any motion for
further discovery even if [the p]laintiffs moved fer euch discovery" is
hothing more than sere speculation. Diesenting Op. at 28. However, inasmuch
the plaintiffs failed to move for a Rule S6(f) continuance, the circuit
Court var not precented with an opportunity €o pace on the iecue. Che
Eg, $1 Havel 319, 240, 98¢ P-2a 78, 99 (2998) (holding that the
Befendant *had the opportunity to raise the iesue [ (now challenged on appeal?)
sernetn the eireuse court, but he Gid not do £0. Insemuch ap he is the party,
anleging error, it vas his burden to reise the iseue, and any ambiguity in the
circuit court's ruling may therefore be attributed to hint). Interestingly,
the dissent exiticizes the najerity for "epecvlet|ing) that the (eireuie]
Court might have granted @ Rule S6(f) continuance’ if the plaintiffs had #0
Fequested. Diecenting Op. at 28. However, we do net opine #6 to whether the
circuit court would have granted the request for a continuence; rather, a
Sndiceted above, the plaintiffs dia not even request such relief, and, thus,
the cizevit court vas net given a chance te rule on the natter. ‘Hae the
notion been reieed ané 8 ruling nade, the seaue woud properly be before this
Court to review whether the circuit court abused ite Glecretion in granting or
Mewes at 416, 986 P-26 at S36 le censad
Senying the requert. fee Jcmus.
of ta Pequest for continuance pursuant te HACP Rule S€(f) will not be reversed
Gheent an abuse of discretion*) (citation omitted). However, euch ie net the
case here.
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opportunity to cecure further opinions from their experts to
submit to the circuit court and cannot now raise it on appeal.
‘See aenerally Chung v. McCabe Hamilton & Renny Co., 109 Hawas's
520, $37, 128 P.34 833, 850 (2006) ("the failure to properly
raise an issue at the {circuit} level precludes a party from
raising that issue on appeal") (internal quotation marks and
citation omitted); see also Avila v. Travelers Ins. Co., 652
F.2d 658, 660 (9th Cir. 1981) (stating that *[a] contention by an
opposing party that he had insufficient time in which to present
specific facts in opposition to the motion [for summary judgment)
normally cannot be successfully raised for the first time on
appeal") (citation omitted) .*
1 the afesent contends thet, *[{Jnasmich as HACP Rule S6(f) wae not
raised by any party but by the majority gua sponte... . under the
Elreanatances St 18 not properly before thie court!,}° dissenting op. at 23
(enghosis cnitted), ie wholly izrelevent to the facte(,]" i6., and, that by
Applying BECP Rule S6(£), we *he[ve) given [DuPont] another “bite at the
piece id, st 24 The relevence of HACP Rule S6(f) is triggered by the
fikined#¢e/ alternetive argusent thet the case be reranded in order to allow
Rhein experte the opportunity to opine regarding the fair compromise valve and
fo present such evidence to he circuit court. As discussed supra, the
Pleineifs had at their Slepcea) the procedural nechaniem, Le, Rule S6(f),
Pode exactiy what tiey now eek. Noreover, as previously @iscussed, the
Foeeibitity chet the circuit court might elect the fair compromise value as
Peetneasare of cansses was not unforeseeable nor unknown to the plaintiffs.
Hheliy, we seiterate that ouPont wer the prevailing party at the circuit
Court; ihe plaintiffs, a2 the non-prevailing party end the
Spread, have the burden of Genonetrating that they sre entitied to the relief
Sought before thin court. See Eettencourt v. Bettencourt, 60 Wowai's 225,
350, 909 F.2d S53, £58 11995) ("t]he burden Ie upon eppellant in an eppeel to
thew error by reference to matters in the recorée") (internal quotation marks
Dd citation omitted). Ae etated in Costa v. Gunn, 5 Maw. App. 619, 697 P26
3 (3988)
(rihe boréen ie on appellant to convince the appellate body
[lat the presumptively correct ection of the cireuit court
fs incorrect, So great ie the burden on appellant to
cvercone the presumption ef correctness that appellee's
{allure co fsle an anewering Brief Goes not entitle
appellant to the relief cought from the eppellate court,
(eontinved. ..)
-67-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
2. The Plaintiffs’ Remaining Contention
‘The plaintiffs also challenge the circuit court's order
granting DuPont's motion for sunmary judgment based on the test
results conducted by Alta Analytical Laboratories, Inc. (Alta).
‘They contend, inter alia, that the circuit court erred in
concluding that the Alta test results were ‘not material’ to the
plaintiffs when they settled their cases and subsequently
dismissed them. However, in light of the foregoing conclusion
that the plaintiffs have not presented sufficient evidence on
damages to defeat summary judgment, we need not address the
instant issue.
(continued)
‘even though the court may accept appellant's statement of
facts 25 correct.
Id. at 430, 697 P.2¢ at 50-51 (citing HEAP Rule 30) (other citations omitted) .
Thos, it can hardly be aid that DoPont ie being afforded @
apple.
# pita wes hired on behalf of DuPont te conduct tests of oi] and
water collected from the properties of certain plaintiffs who hed brougne
Benlate cleint againet DoPent. Alta was one of the few isborateries, 1f not
the only one in the United states, capable of performing the sophisticated
soil ond weter aneiysie to determine whether the Benlate wee contaminates
During the couree of 1itigating the products liebslity actsone, the
following were concealed, withheld, and fraudulently mierepresentes fy DuFont
(2) the Alta test reculte; (2) the test results conéscted in Morte Viete.
Costa Aiea, denonetrating that Benlate wes harmful to Plante; end (3) the
teste perfcrned by A L Midwest lanoretories and by Dufont's in-house testing
facilities
68
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
B. _DuPont’p Crose-Appeal
on cross-appeal, DuPont raises an additional basis to
affirm the circuit court's judgment. Specifically, DuPont
challenges that part of the circuit court's order denying ite
first motion for summary judgnent as to the plaintiffe’ fraud
claims, contending that the circuit court erred in failing te
dismiss the fraud claims. However, based on the above
Aiscussion, we need not reach DuPont’s cross-appeal inasmuch as
it is essentially moot. Indeed, as DuPont maintains, its cross-
appeal was “filed only in the event this court reverses the
[circuit court's) dismissal of the entire case."
IV. CONCLUSION
Based on the foregoing, we affirm the circuit court's
August 10, 2005 judgment.
on the brief
Melvin ¥. Agena, for :
plaintiffe-appellants/ ee Weharmoo—
Exoes-eppelices
we Price III Ree «
warren Price 111, oe
Kenneth 7. Okarote, ee OCKo.#
Robert A. Marks, and Ko
Susan C. Weleon’ (of Price
Okencte Mineno & Lun),
for Getendent appellee/
croses appellant E-1-
Du Pont de Nemours and
Company
-68-
|
d9126c47-5f24-4675-aec5-ce423e2f1e0a | Wasson v. T.H. | hawaii | Hawaii Supreme Court | No. 27571
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
T, LYNNE WASSON, Guardian Ad Litem Prochein Ami for T.P, a Minor,
Pet it ioner-Appellee-Respondent,
T.H., aka 7.K., Respondent-Appel lee-Respondents:
ii.
Ohl Hd 41 dhs LOU
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS:
(EC-P No. 89-0172) &
oR x (CATION
(By: Levinson, J., for the court’) a)
Upon consideration of the application for a writ of
‘oo
nate
certiorari filed on August 16, 2007 by the movant-appellant-
petitioner, the application is hereby rejected.
DATED: Honolulu, Hawai'i, September 14, 2007
FOR THE COURT:
~ [& »
ay TEvidon SE }
Associate Justice: s/
‘The movant-appellant-petitioner,
pro s€, on the application
+ considered by: Moon, C.J, Levinson, Nakayama, Accba, and Ouffy, JJ.
|
c30c7671-13fb-443c-a695-92b2219cece2 | State v. Beltran | hawaii | Hawaii Supreme Court | No. 26096
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
— —
STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
vs.
MARIE BELTRAN, Petitioner/Defendant~Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD NO. 5426494MO) Z
(By: Acoba, J., for the court")
Petitioner/Defendant-Appellant Marie Beltran’s
application for writ of certiorari, filed on July 31, 2007, is
accepted and will be scheduled for oral argument. The parties
will be notified by the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai'i, September 5, 2007.
FOR THE COURT:
Associate Justice
N
Le og vs
Deborah L. Kim, Deputy
Public Defender, on the
application for
petitioner /defendant-appellant.
» considered by Moon, C.J-, Levinson, Nakayama, Acoba, and Dufty, 39.
|
ed0c3cda-15dc-4eda-8be1-30f6dffa97b2 | State v. Awana | hawaii | Hawaii Supreme Court | LAWLIBRARY
No. 27145
5
IN THE SUPREME COURT OF THE STATE OF HAWAT'x®)
um
oa
STATE OF HAWAI'I, Respondent-Plaintiff-Appellee,
E36 iY
GREGORY AWANA, Petitioner-Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-1913)
(By: Nakayama, J., for the court’)
Petitioner-Defendant-Appellant's application for writ
of certiorari filed on August 14, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, Septeber 21, 2007.
FOR THE COURT:
Dera Oa oe
nascclate Justice
avid J. Glerlach for
petitioner-defendant-appellant
on the application
Sconsidered by: Moon, C.J., Levinson, Nal
wna, Acoba, and Duffy, 30.
|
ba7ff0fa-b3b2-48c8-8207-b269e6fa1f9c | State v. Sunderland. Concurring and Dissenting Opinion by C.J. Moon [pdf]. Dissenting Opinion, by J. Levinson [pdf]. Concurring and Dissenting Opinion by J. Acoba [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 10/19/2007 [pdf], 116 Haw. 2. | hawaii | Hawaii Supreme Court | ' LAW UBRAH
‘+4 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
IN THE SUPREME’ COURT OF THE STATE OF HAWAI‘T
000:
STATE OF HAWAT'L, Plaintiff-Appellee,
JOSEPH SUNDERLAND, Defendant-Appellant.
aqawd
Wo, 26641
B16 HY 12 43S LON
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(REPORT NO. H-54084)
SEPTEMBER 21, 2007
NAKAYAMA, J., WITH WHOM DUFFY, J., JOINS:
MOON, C.J., CONCURRING AND DISSENTING; LEVINSON, J., DISSENTING:
AND 'ACOBR, J., CONCURRING AND DISSENTING ‘SEPARATELY
OPINION OF THE COURT BY NAKAYAMA, J.
ANNOUNCING THE JUDGMENT OF THE COUR?
Defendant-Appellant, Joseph Sunderland ("Sunderland"),
appeals from the third circuit district court's! June 23, 2004
judgment convicting him of the offense of Promoting a Detrimental
brug in the Third Degree, in violation of Hawai‘ Revised
Statutes (“HRS”) § 712-1249? Sunderland’s sole point of error
on appeal asserts that his possession of marijuana at home and
for religious purposes was protected by the free exercise clause
of the first amendment to the United States Constitution, as well
as his right to privacy under article I, section 6 of the Hawai'i
Constitution.
For the following reasons, we hold that Sunderland’ s
\ the Honorable Colin L.. Love presided:
FURS § 712-1249 (1993) provides that “fal person connits the
offense of promoting a detrimental drug in the third degree if the person
Knowingly possesses any marijuana or any Schedule V substance in any anount.”
"+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
argument is without merit and affirm the district court's
judgment of conviction.
1. BACKGROUND
‘The material facts of the present case are not in
dispute.
on June 27, 2003, Officer Denise smith (“Officer
smith”) was investigating a report of a missing adolescent.
officer smith was informed that the missing child was known to
retreat to the Sunderland residence. Upon arrival, Officer smith
spotted Sunderland on the lanai and inquired about the child.
Sunderland responded that he did not know and went inside the
house to check. From her vantage point on the lanai, Officer
smith observed three girls sleeping on a futon bed in the living
room, She subsequently observed a six-inch marijuana pipe on the
kitchen table. When Sunderland returned, Officer Smith asked him
to retrieve the pipe. She asked him who the pipe belonged to,
and Sunderland responded, “That's mine. I use it for religious
purposes.” Sunderland then produced a “religious card” from his
wallet indicating his membership in a religious organization
called the “Cannabis Ministry.” Sunderland informed Officer
smith that it was his right to exercise his religious beliefs.
officer Smith instructed Sunderland not to say anything further
and placed him under arrest.
At the police station, Sunderland waived his Miranda
rights and made a statement. He claimed that he had been
practicing his religion since he was sixteen years of age. He
further indicated that he had used the pipe to smoke marijuana
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
that morning, and he forgot to put it away.’
on January 9, 2004, Sunderland was orally charged with
committing the offense of Promoting a Detrimental Drug in the
Third Degree. Sunderland thereafter filed a "Motion To Dismiss
or Judgment Of Acquittal” asserting that the charged conduct
constituted protected activity pursuant to his constitutional
right to the free exercise of religion.‘ The matter proceeded to
trial on January 23, 2004.
At trial, the prosecution orally charged Sunderland for
fa second time, as follows:
‘The charge is that on or about the 27th day of June, 2003, in the
District of forth Kohala, County and State of Hawaii, Joseph
Sunderland did knowingly possess marijuana, thereby connitting the
offense of Promoting 8 Detrimental Drug in’ the Third Degree, in
Vielation of Section 712-1249, Hawai! Revised Statutes, as
linended.
Following the close of the prosecution’s case in chief,
Sunderland called Reverend Roger Christie ("Christie") to the
witness stand. Christie testified that he was ordained in the
~Religion of Jesus Church,” and that he subsequently organized a
sect called the “Hawaii Cannabis Ministry.” Christie explained
that his religion centers around the sacramental ingestion of
cannabis, and that the use of cannabis is mandatory in his
ministry. He pointed to multiple passages from the Bible and
interpreted them as indirect references to the cannabis plant.
» the parties stipulated that, 1f called as a witness, the
criminologist would testify that the residue in the pipe was marijuana.
«the State of Hawai'i (“prosecution”) filed 2 responsive “Trial
Memorandum” on May 12, 2006. On May 13, 2006, Sunderland fled a
“Supplemental Memorandum In Support Of Motion’ To Dismiss Or Judgnent Or
acquittal.”
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
For example, Christie claimed that “the word ‘kannabosm’ in the
holy anointing ofl of Moses and the christening oil of Jesus is
cannabis.” According to Christie, cannabis “has a unique way of
elevating the consciousness{,]” distinct from other mind-altering
substances, and that prohibiting the use of cannabis would have a
“devastating” effect on his ministry.
Sunderland subsequently exercised his right to testity.
Sunderland admitted possession of the pipe recovered by officer
smith, and he further admitted that the residue in the pipe was
marijuana. However, Sunderland thereafter testified that he was
2 menber of Christie’s ministry and used marijuana for religious
purposes. Sunderland clained that ingesting marijuana was
religious experience that produced a “very unique state of mind”
that brought him closer to what he considered “God.” Sunderland
explained, “And . . . I believe that -- in part of .
understanding God, I believe that God put the holy herb onto this
earth to help mankind to better understand Hin.”
At the close of the evidentiary portion of trial, the
court rejected Sunderand’s argunent that his constitutional
right to the free exercise of religion precluded his prosecution
for possessing marijuana. First, the court assumed that
Sunderland's religious beliefs were sincere, as follows:
THE COURT: The question of whether or not St Le a
iS%aincet inposeibie’tor a Court to actress: whether or not
scnsboay eincerely believes in a Feligsoue natter: We fight ware
Over who has the Only true God.
1£'3 Judge happened to be an atheist, how would you
mor her
convince
(Emphasis added.) The court nevertheless perceived a compelling
+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
state interest in precluding the use and possession of illicit
drugs in the presence of minors:
5 using and possessing marijuana in his
there's four
ninore. tate does have @ compelling interest. in
Protecting minors, juveniles, children, from an environment where
Rarijuana se being died, from an environment where its use ss
Gneouraged. because minore use arijuana., And this Court sees
the preblens that weed by that ail the tine.
30 in thie case, not sone other case, in this case
do find 9 compelling state interest in prohibiting the possession
Of uae of marijuana for religious purposes... in the home when
Binors are present.)
‘The court thereafter found Sunderland guilty of the
charged offense, and sentenced him to a $150 fine and $25 in
fees.
Sunderland filed a timely notice of appeal on June 17,
2004.
IT, STANDARD OF REVIEW
Sunderland’s sole point of error on appeal questions
the constitutionality of his prosecution for possessing marijuana
in the privacy of his home for religious purposes. “We review
questions of constitutional law de novo, under the right/wreng
standard.” Qnaka v. Onaka, 112 Hawai'i 374, 378, 146 P.3d 69, 93
(2006) .
XII, DISCUSSION
ve His Right to Privacy Argument
As an initial matter, we note that Sunderland failed to
preserve his constitutional right to privacy argusent on appeal.
In his opening brief, Sunderland claims that trial
counsel “franed the constitutional question as a blend of freedom
of religion and privacy interests . . . .” However, that
5
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER:
assertion is belied by the record. The parties did not address
any right to privacy argument in any of their written submissions
before the circuit court.’ Sunderland attempts to bootstrap a
privacy argument by referring to the following arguments orally
presented before the circuit court at a hearing conducted on May
19, 2004:
‘The next question is: Has the state shown a
compelling interest? “I'say that. the
While you're under the inflvencs of marijvans
fare red herrings because that’s not what this case is about.” This
fese is about someone in his omm hone possessing a small anount of
marijuana for religious purposes, That is the only issue in this
Tt As not an iesue in this case whether or not you can
smoke marijuana and drive car, whether or not pregnant women
Should snoke marijuana, any of those others [sic] things. Tals Se
fan adult hale in his cun home snoking sarijuana for religious
Purposes. That ie the iseve, There's no sesue Beyond nat
So whether or not any of these other things 18 @ good
idea ien't before this Court, and it's not what we're addressing.
going down the highway at ninety
They're not asking, hey, he
Riles an hour snoking # large
Trosble for that. No. He's
Ris hoase.. And that's all the
precedent for doing it sone place els
Feligious purposes.
only in your own hone for
‘he state -- I'm not here to litigate whether or not
to permit soneone not to drive a car while intoxicated on
marijuana. That's a totally different issue than can you do
fenething at your own house, which would bring ss to this general
idea of wnat isa compelling state interest.
+e note that Sunderland cited Ravin vs State, 534 P.2d 494 (Alaska
1975) in nis supplenental remorandum in support of his motion to dismiss of
for a judgeent of acquittal. In Ravin, the Alaska Suprene Court held that the
defendant's personal, non-commercial use of marijuana in his hone was
Constituticnally protected. 1d, at S11. However, Sunderland did not cite
Ravin for the purpose of ssserting a right to privacy ergunent. Rather,
Sunderland cited Ravin for its reasoning that the prohibition on the
possession of marijuana in the privacy of the possessor’s home did not further
f legitimate state interest. Sunderland sought to se the savin court's
Feasoning to buttress his argument chat the prosecution failed to demonstrate
2 compelling state interest in the case at bar.
‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
This case is only about the use of marijuana in the
home. Supre
ee adsressu “ai Basic
ney hi pat case in faweit, Ans on Level
So T would say that . . . it is not reasonable to say
that there's @ compelling state interest against the religious use
Of nari jucna in your own heme because that’s the only. issue here.
fers found in his home with Just a small amount. It's not 1've
Saye avanall amount in your home, Thats
Noe the dréving
women shouldn't, all those things could be compelling interest.
Thet's net what we're esking for. We're asking @ very limited
thing here: Only in your omn home Because that's the issue
presented here.
(Emphasis added.)
Although Sunderland asserted that he used marijuana for
religious practices in his own home, he did not seek to draw the
conclusion that his right to privacy was implicated. Indeed, as
denonstrated by the afore-enphasized portion of the transcript,
he expressly disavowed any right to privacy argument. Rather,
Sunderland argued that, despite the inability to succeed on
privacy grounds in this jurisdiction, his right to the free
exercise of religion required the prosecution to demonstrate @
compelling state interest justifying a prohibition on the
personal, home-use of marijuana. His focus on the home was meant
only to distinguish other potential compelling state interests in
preventing public harm that may flow from the use of marijuana
outside the home. That argument differs from the argument
that his right to
Sunderland now seeks to assert on appeal
privacy encompasses the right to possess marijuana for religious
purposes within the confines of his own hone.
7
+ FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER ***
‘Therefore, inasmuch as Sunderland did not raise his
right-to-privacy argument before the trial court, we do not
address it. See HRS § 641-2 (Supp. 2004) ("The appellate court .
|. . need not consider 2 point that was not presented in the trial
court in an appropriate manner.”); State v, Nacole, 62 Haw. 563,
510, 617 P.2d 820, 826 (1980) (stating that it is well-
established that “an issue raised for the first time on appeal
will not be considered by the reviewing courts”); State ws.
Kahalewai, 56 Haw. 481, 491, 541 P.2d 1020, 1027 (1975)
("Generally, appellate courts will not consider questions which
Territory v. Kelley, 38
Haw. 433, 435 (1949) (*[NJo question of constitutionality of the
were not raised in the trial courts.”
ordinance was . . . called to the attention of the trial court
and ruled upon, nor has any failure to rule been preserved by
proper exceptions. No such question, therefore, can be properly
raised for the first time in this court.”); Qnaka, 112 Hawai'i at
386, 146 P.3d at 101 ("[T)he rule in this jurisdiction .
prohibits an appellant from complaining for the first tine on
appeal of error to which he has acquiesced or to which he failed
to object.”) (Ellipses in original.) (Citations omitted.).
B. Enforcement of HRS § 712-1249 Does Not Violate Sunderland’ s
First Amendment Right to the Free Exercise of Religion.
1. The parties’ arguments
Sunderland’ s argument is thus reduced to his assertion
that HRS § 712-1249 violates his right to the free exercise of
religion guaranteed by the first amendment to the United States
Constitution ("First Amendment”). Specifically, Sunderland
refers this court to the analysis set forth by the United States
“OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
Supreme Court in Sherbert v, Verner, 374 U.S. 398 (1963). He
asserts that under Sherbert, a governmental regulation will be
scrutinized for a compelling interest where the party challenging
the regulation’s constitutionality has demonstrated that the
regulation substantially burdens the party's religious practices.
See, e.a., Sherbert, 374 U.S. at 406 ("We must next consider
whether some compelling state interest . . . justifies the
substantial infringement of appellant's First Amendment right.)
Wisconsin v. Yoder, 406 U.S. 205, 214 (2972) ("[I]n order for
Wisconsin to compel school attendance beyond the eighth grade
against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the
State does not deny the free exercise of religious belief by its
requirement, or that there is a state interest of sufficient
magnitude to override the interest claiming protection under the
Free Exercise Clause.”). Sunderland points out that the district
court presumed that the “religious aspect” was met and argues
that the district court erroneously found that the state had a
compelling interest in protecting minors from an environment
where marijuana was used and encouraged. He contends that the
record is devoid of any evidence that (1) the minors present had
actual knowledge of the marijuana pipe, or (2) Sunderland
encouraged the use of marijuana in any way.
‘The prosecution appears to agree with Sunderland that
the Sherbert/Yoder analysis is appropriate. The prosecution
concedes that the district court presumed that the “religious
aspect” was satisfied, but defends the district court’s finding
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
of @ compelling interest based upon the presence of the minors in
close proximity to the marijuana pipe and the ease of access to
it. The prosecution also asserts that in Employment Div., Dep't
of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990), superseded
by Religious Freedon Restoration Act (“RFRA”) of 1993, 42 U.S.C.
$ 2000bb-1 (Supp. V 1993), statute invalidated by City of Boerne
vs Flores, $21 U.S. 507 (1997), the United States Supreme Court
later “questioned” the propriety of a compelling interest
analysis where the regulation in question (1) is of general
applicability and (2) interferes with only the right to free
exercise.
In reply, Sunderland asserts, inter alia, that the
prosecution's reliance on Smith is misplaced. sunderland argues
that Congress enacted RFRA in an attempt to expressly supersede
Smith's elimination of the compelling interest analysis in the
context of generally applicable governmental regulation.
Contrary to Sunderland’s assertions, however, Smith
plainly controls.
2. Employment Div.. Dep’t of Human Res, of Oregon vy, Smith
Ordinarily, when evaluating clains advanced under the
free exercise clause of the First Anendnent,
it [1s] necessary to examine whether or not the activity
i0plLinate and sivcerely held religious felist, whether oF net the
Bgulations the eatent of inpast of the reguistion on the parties?
Feligicas practices, snd whether or not the state had s compelling
Interest ih the regulation which Justified such a burde
Korean Buddhist Dae Won Sa Temple v, Sullivan, 87 Hawai'i 217,
247, 953 P.2d 1315, 1345 (1998) (brackets in original) (citing
10
1" FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
State ex rel. Minami v, Andrews, 65 Haw. 289, 291, 651 P.2d 473,
474 (1982); accord Yoder, 406 U.S. at 215-19,
Nevertheless, in Smith, the United States Supreme Court
distinguished governmental regulations of general applicability,
holding that they are, under certain circumstances, immune from
claims or defenses raised under the free exercise clause of the
First Amendment. See discussion infra. Specifically, the Smith
Court addressed the issue whether applicants may be denied
unemployment compensation benefits based upon an Oregon statute
disqualifying persons terminated for work-related misconduct, if
the misconduct relied upon as the basis for disqualification is
the religiously motivated ingestion of a substance prohibited by
oregon’s controlled substance law.
‘The Smith Court first reiterated the well-settled
notion that religious beliefs are beyond the reach of permissible
governmental regulation, to the extent that government may
neither compel nor preclude acquiescence in a particular belief
as such, 494 U.S. at 877 ("The free exercise of religion means,
first and foremost, the right to believe and profess whatever
religious doctrine one desires.”). Moreover, although attendant
conduct does not enjoy the same degree of immunity, id. at 879
(“laws . . . are made for the government of actions, and while
they cannot interfere with mere religious belief and opinions,
they may with practices . . . .”) (Quotation marks omitted.)
(Some e11ipses in original and some added.) (Citing Reynolds vw.
United States, 98 U.S, 145, 166-67 (1878).), governmental
regulation that targets the religious motivation behind such
nn
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
conduct would not pass constitutional muster. To wit, “a State
would be prohibiting the free exercise of religion if it sought
to ban such acts or abstentions only when they are engaged in for
religious reasons, or only because of the religious belief that
they display.” Id. at 877 (quotation marks omitted) (brackets
removed) «
Respondents, however, desired to expand the analysis
fone step further in seeking to preclude interference with
religiously motivated conduct by a governmental regulation that
does not target the religious motivation behind the conduct and
that is concededly constitutional as applied to other persons
seeking to engage in such conduct for non-religious reasons
‘ recreational purposes). Id. at 878. The Court pointed
out that previous opinions have upheld neutral and generally
applicable laws against constitutional challenges based upon the
free exercise clause of the Firet Amendment, citing such cases as
Reynolds v. United States, 98 U.S. 145 (1878) (rejecting a clain
that laws prohibiting polygamy could not be enforced against
those whose religion commanded the practice), Minersville School
Dist, Bd. of Educ, v. Gobitis, 310 U.S. 586, 594-95 (1940)
("conscientious scruples have not, in the course of the long
struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or
restriction of religious beliefe."), Prince v. Massachusetts, 321
U.S. 188 (1944) (holding that child labor laws may
constitutionally be applied to preclude a mother from causing her
children to distribute literature on the streets in spite of her
2
)R PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
religious motivation), Braunfeld v, Brown, 366 U.S. 599 (1961)
(plurality opinion) (upholding Sunday-closing laws against the
claim that such laws burdened the religious practices of those
whose religions precluded them from working on other days),
Gillette v. United states, 401 U.S. 437 (1971) (upholding
conscription against a claim asserted by persons who opposed the
war on religious grounds), United States v. Lee, 455 U.S. 252
(1982) (rejecting a claim for a religious exemption from social
security taxes on the ground that the Amish faith prohibited
participation in governmental support programs, and Hernandez v.
Commissioner, 490 U.S. 680 (1989) (rejecting a claim that the
payment of income taxes burdened the free exercise of religion by
making participation in religious activities more difficult).
Smith, 494 U.S. at 879-80.
The Court acknowledged that it had, in the past, upheld
First Amendment challenges to the application of neutral and
generally applicable laws to religiously motivated conduct, but
only in such cases where the free exercise clause was inplicated
“in conjunction with other constitutional protections, such as
freedom of speech and of the press . . . or the right of parents
|. . to direct the education of their children... .” Id at
881 (internal citations omitted). Thus, the Court concluded that
Reynolds and its progeny “plainly controll {ed]” inasmuch as
Oregon's controlled substances law was neutral, generally
applicable, and did not implicate other core constitutional
concerns. Id. at 882.
Respondents also argued that “even though exenption
13
‘++ FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER ***
from generally applicable criminal laws need not automatically be
extended to religiously motivated actors, at least the claim for
a religious exemption must be evaluated under the balancing test
set forth in [Sherbert].” Id, at 882-83. However, the Court
expressly rejected the application of the Sherbert test to “a
generally applicable criminal law.” Id. at 884. The Court
reasoned as follows:
‘The governnent’s ability to enforce generally applicable
prohibitions of socially hermful conduct, 1ike its ability to
Earry out other aspects of public policy, “cannot depend on
measuring the effects of a governnental action on 2 religious
objector's spiritual development." Lynal
4080-8, 439, 451 (19887)
Inaivioual’s obLigetion to obey auch a law contingent upon th
law's coincidence with his religious beliefs, except where the
State's interest 1s Ycompelling"--permitting him, by virtue of his
beliefs, sto becone a law unto himeelf," Reynolds(, 98 U.S. at
167}"-contradicts both constitutional tradition and common sense.
Id. at 885 (footnote omitted)
Accordingly, the Court reversed the decision of the
Oregon Supreme Court, concluding that “[b]ecause respondents’
ingestion of peyote was prohibited under Oregon law, and because
‘that prohibition is constitutional, Oregon may, consistent with
the Free Exercise Clause, deny respondents unemployment
compensation when their dismissal results from use of the drug.”
Id. at 990.
+ we note, however, that smith left open the possibility that the
Sherbert test might nevertheless retain its vitality where statutory
Eonditions called for “individualized governmental assessment of the r
for the relevant conduct (,]” jd. at 684, thus creating « "mechanism for
Snatvidualized exenptions." 498 0.8. at 883 (Citing Bowen vy. Ray, 476 U.S
693, 108 (1986); gee also Sullivan, 67 Havai'l at 246 nal, 953 P-2d at 1344
n.3i (stating that although SMiGh makes generally appli:
Tegulation inmune fron Firat Anetdnent attack, Suith cai
the regulation creates system of individualized exemptions)
4
1+* FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER ***
3. BRERA
As mentioned by Sunderland, in 1993 Congress reacted by
enacting RFRA, which was designed to supersede the Smith decision
and reinvigorate the Sherbert/Yoder analysis.’ See RFRA, Pub. L.
No. 103-141, 107 Stat. 1488 (1993). RFRA, 42 U.S.C. § 2000bb-1
set forth the following standard:
(a) In generat
Government shell not substantially burden a person's
exercise of religion even 1f i fren
except as provides in subsection (b) of
this section.
() Exception
Government may substantially burden a person's exercise of
religion only if it demonstrates that application of the burden to
the person—~
(2) 42 An furtherance of a compelling governmental,
Anterest) and
7 RERA’s stated purposes were to (1) “restore the compelling
Interest test ar set forth in Sherbert v. Verner, 274 U.S. 998 (1963) and
Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its applicetion in
Gil cases where free exercise of religion is substantially burdened{,]” and
(2) “provide a clain or defense to persons whose religious exercise 1s
Nibetantlally bardened by government.” RERA, 42 U.S.C. § 2000bb(b). Congr
‘adcitionally found that:
(2) the framers of the Constitution, recognizing fre
exercise of religion as an unalienable right, secured its
protection in the First Anendment to the Constitutions
(2) tans vneutral* toward religion mey Durden religious
cxgectte! ae sucely 2 lave intended fo interfere with religious
(3) governments should not gubstantially burden religious
exercise without compelling Justification:
(4) in Exploynent Division v. smith, 494 U.S. 872 (1990),
tthe Suprene Court virtually eliminated the requirement that the
Governsent justify burdens on religious exercise imposed by laws
Beutral toward religions and
(s}"the compelling interest test os set forth in prior
Federal court rulings it a workable test for striking sensible
Balances between religious liberty and competing prior
governsental interests.
RERA, 42 U.S.C. § 2000BB(a) .
4s
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
(2) 4s the Least restrictive means of furthering that
compelling governmental interest
(Emphasis added.) RFRA purported to make that framework
applicable to “all Federal and State law, and the implementation
of that law, whether statutory or otherwise . . . .” RFRA, 42
U.S.C. § 2000bb-3(a).
However, this court has already taken note of the fact
that the United States Suprene Court, in Boerne,' invalidated
RFRA insofar as it “exceeded the enumerated powers of Congress
and was, therefore, unconstitutional.” Sullivan, 87 Hawai'i at
246, 953 P.2d at 1344. As a result, RFRA is inoperative as to
the individual states. See Hankins v, Lyght, 441 F.3d 96, 105
(2d Cir, 2006) (“The Supreme Court held that the RFRA could not
be enacted under Section 5 of the Fourteenth Amendment, which
‘empowers Congress to enforce the Amendnent’s other provisions
against the states.”); Spies v. Voinovich, 173 F.3d 398, 403 (éth
Cir. 1999) ("[T]he Supreme Court has declared {RFRA
Denson v. Marshall,
44°F. Supp. 2d 400, 402 (D. Mass. 1999) ("The Supreme Court
unconstitutional as applied to the states.”)
recently held RFRA unconstitutional as applied to state
governments.”
. stated that “RFRA was designed to control
the one before usy but a8 the provisions of
the federal statute here invoked are beyond congressional authority, it is
this Court’s precedent, not RFRA, which must control.” S21 U.S. at S36.
government. jelvery
Gppellote court that nae squarely addressed t) held that the
RFRA governs the activities of federal officers and agencies.) (Citing
; 349 F.3d 399, 401 (7th Cir. 2003}.) (Brackets
{noriginal.}-— In 2000, Congress anended RFRA, expressly limiting sts
(Cont inved. ..)
16
{++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
‘The present matter involves a state criminal statute
prohibiting, inter alia, the possession of marijuana, Thus,
‘Smith, not RFRA, controls.
According to Smith, a generally applicable law is not
subject to First Amendnent attack unless (1) it interferes with
“the Free Exercise Clause in conjunction with other
constitutional protections,” or (2) it creates a mechanism that
calls for “individualized governmental assessment of the reasons
for the relevant conduct (]” (ines, individualized exemptions).
See discussion supra
Here, HRS § 712-1249 falls squarely within the scope of
permissible governmental regulation, consonant with the rule
enunciated in Smith. HRS § 712-1249 is a neutral law of general
applicability to the extent that it purports to prohibit, without
exception, the possession of marijuana and any other substance
defined as a “Schedule V substance” by HRS chapter 329.
Additionally, the statute does not, in this case, also interfere
with other constitutional rights, such as
freedom of speech and of the press, ace Cantwell v, connecticut,
$10 Ur8.5 at 3017207. (invalcating # Licensing systen for
SSLISISEEACUe fadaleceecion to Geny'a License to" any cause he
eee erie Slat Mana PEMD tied tothe
dissenination of religious ideas); Eollett v. HeComick, 322 0.5.
513 (944) (eae), or the right of parents... to direct the
ecocation of their children, see Wisconsin ¥. Yodel, 406 U.S. 205
*(. continued)
applicobiiity te "ell Federal law, and the implementation of that law, whether
stitutery er otherwise... .” Religious Land Use and Institutionalized
Persons Act, Pub. L. No. 106-274, 114 stat. 603, 806 (2000).
vv
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
(1872) (invalidating compulsory school-attendance laws as applied
fo Anish parents who refused on religious grounds to send their
children te school)
Smith, 494 U.S. at 881 (footnote omitted). Thus, the present
matter does not present the type of hybrid rights situation that
‘Smith implies would merit a strict scrutiny analysis. Rather, we
are faced with “a free exercise claim unconnected with any
communicative activity or parental right.” Id. at 682.
Moreover, HRS § 712-1249 does not create a mechanism for
governmental assessment of individual applicants for exemptions.
Rather, HRS § 712-1249 presents an across-the-board prohibition
on specific conduct deemed to be socially harmful by the
legislature.
‘Therefore, pursuant to Smith, we hold that, under the
circumstances of the present case," the free exercise clause of
the First Amendment is not a viable defense to prosecution under
HRS § 712-1249. See 494 U.S. at 884 (“Even if we were inclined
to breath into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exenptions
from a generally applicable criminal law.”); People v. Tripped,
56 Cal. App. 4th 1532, 1542, 66 Cal. Rptr. 2d $59, S65 (Cal. Ct.
App. 1997) ("Under Smith, therefore, a state may enact and
enforce generalized criminal sanctions for marijuana possession
and transportation without running afoul of the Free Exercise
clause of the First Amendnent.”); State v, Mevers, 95 F.3d 1475,
* We express no opinion as to what effect a properly preserved
privacy argunent may have had on the analysis, insofar as privacy argument
hoy present the type of hybrid rights scenario that SMith implies would merit
a strict scrutiny analysis.
18
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
1481 (10th Cir. 1996) (rejecting a criminal defendant's claim
that his prosecution for and conviction of the offenses of (1)
conspiracy to possess with intent to distribute and to distribute
marijuana, and (2) aiding and abetting possession with intent to
distribute marijuana violated the free exercise clause of the
First Amendment) -
Iv, concnusrow
Based upon the foregoing analysis, we affirm the
district court's June 23, 2004 judgment.”
Deborah L. Kim,
Deputy Public Defender, 2
for defendant-appeliant late 6 Tawle are
Janet R, Garcia, Yre. eran
Deputy Prosecuting Attorney, 7
for plaintiff-appellee
% Ag @ technical we note that the district court erred by
‘applying a compelling sinters ci" fevertheless, our disagreenent with the
QieeLice court's methodology does not preclude our affirmance of its ultimate
Conclusion. Seg Aluinum Shake Roofing, Inc, va Hixavasu, 110 Hawai't 246;
S8e, 331 Pr3d 1230, 1298 (2006) ("this coure nay affirm a’ judgnent of 0
Erisi court on any ground in the record which supports affirmance.”) (Quoting
Tavlorsslee state, 91 Hawai’ 60, 73, 979 P.24 1086, 1099 (1998).)
(Quotation marks omitted.)
19
|
8bf727ac-da50-4c5a-8719-8bde07b96e58 | The Sierra Club v. The Department of Transportation of the State of Hawaii | hawaii | Hawaii Supreme Court | No. 27407
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
THE SIERRA CLUB, a California non-profit corporation
registered to do business in the State of Hawai'i; MAUI
TOMORROW, INC., a Hawai'i non-profit corporation; and the
KAHULUI HARBOR’ COALITION, an unincorporated association,
Plaintiffs-Appellants
THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF
HAWAI'I; BARRY FUKUNAGA, in his capacity as Director of
the DEPARTNENT OF TRANSPORTATION OF THE STATE OF
HAWAI'I; MICHAEL FORMBY, in his capacity as Deputy Director
for Harbors of the DEPARTMENT OF TRANSPORTATION OF
THE STATE OF HAWAI'I and HAWAI'I SUPERFERRY, INC.,
Defendants-Appellees
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO, 5-1-0214)
ORDER OF CORRECTION
Duffy, J. for the court’)
IT IS HEREBY ORDERED that the opinion of the court filed
fon August 31, 2007 is hereby corrected as follows (deletions are
italicized in brackets and additions are double underscored) :
Page 2, line 13: the Hawai‘ Environmental [Protection]
Policy Act (HEPA),‘ before
Page 2, footnote 4, last lint
[Protection] Policy Act.
Page 4, footnote 5, line 12: The PUC further
“condition[ed [it’s] its) authorization in this docket upon
1 considered by: Moon, C.J.) Levinson, Nekayena, Acobs, end Deffy, JJ.
Page 6, line
Lerocedure} policy Act
|) ine
A. The Hawai'i Environmental
Page exemption rules provide for (10) gen
classes of exenpt actiong,
Page 8, line 9 (delete extra space): specified in []
HAR § 11-200-8(A) (1)-(10) (1996), available at
Page 8, footnote 7, line 4: Rules of Practice &
Procedure,” available at http: //ww.state.hi.us/health/
Page 8, footnote 8, line 1: HAR § [12) 11-200-8(A)
provides:
31, Lines 20 and 21: the process: (1) when no EA
is prepared, (2) when [a FONSI is prepared, (3) and) ap agency
determines that an £16 vill or vill not be required, and (2) when
an EIS is accept
HRS § 343-7(a)-(c).
Page 18, line 6: Waleakal4) Yaleakels National Park,
National Park Service; the Maui Invasive
Page 19, line 13 (after block quote!
Aimphases_ added.)
Garibaldi also discussed hi's company’s work with “the State
Page 25, line 9 (add underscore): [de novo] de novo
review of the circuit court’s judgnent.
Page 27, line 11: purpose,’” 77 [Haw.] Hawai'i 446,
457, 687 P.2d 656, 667 (App. 1993)
Page 27, footnote 20, line 15: [EISes} EISs are or
aren't required, the availebility of [ETSes] E1S$g for review and
Page 41, line 10: Prot. of North Kohala Coastline v.
County of Hawai'i, 91 (#aw.) Hawas' 94,
Page 42, line 13 (after block quote): plaintiffs, and
the court will recognize harms to [a plaintiff’s) plaintiffs
Page 43, footnote 28, line 2 (delete underscore from
space): approach to standing in environmental cases, see, e.g. /]
Life of the Land, 63
Page 43, footnote 28, line 3: Haw. at 177 n.15, 623
P.2d at 443 n.15, [this court has] ye have not directly
Page 43, footnote 28, 1ine 21: enforce laws intended to
protect the environment” (Alteration) alteretion in original /.1)
Page 43, footnote 28, 1
fe line: (/Emphasis) emphasis
added/.))-"
Page 55, line 21 (after block quote): subsection: (1)
[the) SJtthe council or office, any agency responsible
Page 65, line 11: show that: (1) [they have] the
plaintiff has been accorded @ procedural right, which
Page 65, line 15: right protects [a] the plaintiff's
concrete interests; and (3) the
Page 65, line 16: procedural violation threatens the
plaintigf’s concrete interests,
Page 74, line
increased traffic and use of
recreational areas was due to the
Page 77, line 13 (delete underscore): {nesbersh
shi era] end the renedy provided to the
organization
Page 80, line 3: (1985); (Cf.) cf, Playboy Enter., Inc.
v.Bub, Serv, Comm'n, 906 F.2d
Page @2, line 9: because DOT's determination was
supported by the record,
Page 85, line 13: Appellants (argues) aroue that DoT
committed legal error in its
Page 101, line $: (flipside) £1ip side of this caution,
however, is that this court “must
Page 103, line @: Environmental (Protection) Zolicy
Ret.
Page 103, line 9: Based on the foregoing, we (reverse)
yacate the circuit court's
The Clerk of the Court is directed to incorporate the
foregoing changes in the original opinion and take all necessary
steps to notify the publishing agencies of these changes.
DATED: Honolulu, Hawai'i, October 1, 2007.
FOR THE COURT:
GYoron 6: Beene -
Associate Justice
|
fb79e793-9142-4b38-a975-ab962145cf3b | Cho v. State | hawaii | Hawaii Supreme Court | LAWLISRARY
No. 27458
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
CALVIN K. CHO, HEE CHO, DAVID CHO, TENNY CHO, KAREN CHO,
and SHARON’ CHO, Petitioners/Plaintiffs-Appellanta.
STATE OF HAWAI'T, Respondent /Defendant Appell
aaws
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. wo. 97-1939)
sPTING AI ION IT OF CER
(By: Moon, C.J., for the court)
titioners/plaintiffs-appellanta Calvin X. Cho, Hee
cho, David Cho, Tenny Cho, Karen Cho, and Sharon cho!
application for writ of certiorari, filed on August 6, 2007, is
hereby accepted.
DATED: Honolulu, Hawai'i, September 7, 2007
FOR THE COURT:
e J
Ve oe wh
considered by: Woon, C.J., Levinson, Wakayama, and Acobs,
Circuit Judge Tom, in place of Duffy,
a0, and
recused
|
27263299-fbbc-494c-b404-b00981ccedc4 | State v. Booth | hawaii | Hawaii Supreme Court | No. 2782
IN THE SUPREME COURT OF THE STATE OP HAWAI'T
a
aang
EMILY LOUISE BOOTH, Petitioner-Appellant
| 8
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE No. 00536388M)
(By: Moon, C.J., for the court")
Petitioner-appellant Emily Louise Booth’s application
is hereby rejected.
for writ of certiorari, filed July 6, 2007,
DATED: Honolulu, Hawai'i, August 15, 2007.
FOR THE COURT:
Jon N. tkenaga,
Deputy Public Defender,
for petitioner-appellant
and oufey, ay.
Moon, C.J., Levinson, Makayama, Acoba
© considered by:
|
485bc697-e583-4145-a4c9-295c9da6cdbe | Jou v. Schmidt | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27880
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
EMERSON M.F. JOU, M.D., Petitioner-Appellant-Appellant,
Insurance Commissioner, Department of Conmerce and
Consumer Affairs, State of Hawaii, Appellee-appdilee py
J.P. SCHMIDT,
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO,y
Respondent Appel lee-Appelllee.
CERTIORARI TO THE INTERMEDIATE COURT OF aPPems &
(CIV, NOS. 051-1085, 05-1-1054, AND 05-1-1056)
ORDER REJECTING APFLICATION FOR WRIT OF CERTIORARI
Hd 6~ ony,
aang
(By: Nakayama, J., for the court’)
Petitioner-Appellant-Appellant’s application for writ
of certiorari filed on July 10, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, August 9, 2007.
FOR THE COURT:
Prssetes Oey anc e
S,
Associate Justice
Stephen M. Shaw for
petitioner-appellant-appel lant
on the application
Mocn, €.J-, Levinson, Nekayane, Acobs, and Doffy, J3.
ered ty:
|
6c771942-bef5-42c7-bf51-1c1a8f741d83 | Brescia v. North Shore Ohana | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 27212
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ee
JOSEPH A. BRESCIA, Plaintiff /Appellant-Appellee
NORTH SHORE OHANA, HAROLD BRONSTEIN and CAREN DIAMOND.
Defendants/Appellees-Appellants
and,
PLANNING COMMISSION OF THE COUNTY OF KAUAI)
Defendant/Appellee 2
=
APPEAL FROM THE FIFTH CIRCUIT COURT G|
(CIV. NO. 03-1-0177) =
1
‘and Duffy, JJ.)
3
&
3
oats
(By: Moon, C.J., Levinson, Nakayama, Acobé
upon consideration of the motion for reconsideration
and/or clarification filed on August 1, 2007 by Plaintitt/
Appellant-Appellee Joseph A. Brescia, seeking “reconsideration
and/or clarification of the decision [filed herein on July 12,
2007,] on the limited issue of which map would be applicable for
the determination of the so-called “Zoning District Boundary
Setback Line,” the attachnents thereto, and the record herein,
IT 18 HEREBY ORDERED that the motion is denied, without
prejudice to any other renedy regarding the aforesaid issue
August 31, 2007.
raised in the motion.
Hawai'i,
DATED: Honolulu,
Walton D.Y. Hong, on the
motion for Plaintift/
Appellant-Appellee. VimPheannor
|
98fe5594-8285-4d98-a7f4-4f1e2939d4c4 | Mausert v. Department of the Attorney General, State of Hawaii | hawaii | Hawaii Supreme Court | No. 28650
XW THE SUPREME COURT OF THE STATE oF uawar'r BEE
Ed
KURT MAUSERT, Petitioner, 22)
vs. 3
DEPARTMENT OF THE ATTORNEY GENERAL, STATE OF HAWAI'I:
MARK BENNETT; CHRISTOPHER YOUNG
DEPARTMENT OF THE PROSECUTING ATTORNEY, CITY AND
COUNTY OF HONOLULU; PETER CARLISLE, Respondents.
ORIGINAL PROCEEDING
‘ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 9J.)
upon consideration of the petition for a writ of
mandamis filed by petitioner Kurt Mausert and the papers in
support, it appears that Hawai'i Revised statutes (HRS) § 8020-
4(a)(1) (Supp. 2006) affords petitioner the right to notice of a
final disposition or a major development, as defined by HRS §
8010-2 (1993). Petitioner acknowledges notice from the Attorney
Genera, which is notice in accordance with HRS § 8010-4 (a) (1)
(Supp. 2006) inasmuch as it is notice of a major development, as
defined by HRS § 801D-2 (1993), and the basis for the notice is
not a statutory requirenent. Petitioner fails to demonstrate
that a final disposition or a major development, as defined by
HRS § @01D-2 (1993), hae been effected by the Prosecuting
Attorney for which petitioner is entitled to notice under HRS §
801D-4(a) (1) (Supp. 2006). Therefore, petitioner fails to
demonstrate @ clear and indisputable right to relief and is not
entitled to a writ of mandamus. See Kena v. Gaddis, 91 Hawai'i
200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus will not
aaa
issue unless a petitioner demonstrates a clear and indisputable
right to relief and a lack of other means to redress adequately
the alleged wrong or obtain the requested action; In Re
Disciplinary Bd, of Hawaii Supreme Court, 91 Hawai'i 363, 994
P.2d 688 (1999) (Mandamus relief is available to compel an
official to perform a duty allegedly owed to an individual only
Af 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.). Therefore,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, August 14, 2007.
Gr
Aca Phone
ease OY umiltsed oem
Wo Dig bo"
|
0d331d74-2bcd-40a6-98e4-ea50ef8be0dd | Cho v. State. ICA s.d.o., filed 04/18/2007 [pdf], 113 Haw. 507. S.Ct. Order Accepting Application for Writ of Certiorari, filed 09/07/2007 [pdf]. | hawaii | Hawaii Supreme Court | LAWLIBRARY.
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000
CALVIN K. CHO, HEE CHO, DAVID CHO, TENNY CHO,
KAREN
Ho, and SHARON’ CHO,
Petiticners/Plaintiffe-Appellants,
ve.
STATE OF HAWAT'Z, Respondent /Defendant -Appel1/
No. 27458
CERTIORARI TO THE INTERMEDIATE COURT OF APPI
(crv. NO. 97-2939)
3
gas
avai 4096
ni AE ao
"yaviT YON
SEPTEMBER 19, 2007
MOON, C.dJ., LEVINSON, NAKAYAMA, AND ACOBA, Od. ,
AND CIRCUIT JUDGE TOWN, IN PLACE OF DUFFY, J., RECUSED
OPINION OF THE COURT BY MOON, C.J.
on Septenber 7, 2007, this court accepted a tinely
application for writ of certiorari, filed by petitioners/
plaintiffe-eppellants Calvin K. Cho (Calvin), Hee cho (Hee),
pavid cho (Pavid), Tenny Cho (Tenny), Karen Cho (Karen), and
sharon Cho (Sharon) [hereinafter, collectively, the Chos] on
August 6, 2007. The Chos requested that this court review the
May @, 2007 judgrent of the Intermediate Court of Appeals (ICA),
entered pursuant to its April 18, 2007 summary disposition order.
‘Therein, the ICA generally “affirned" the Circuit Court of the
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
August 25, 2005 first amended judgment, finding
First Circuit’
in favor of reepondent/defendant-appellee State of Hawai'i (the
State) ae to all counts in the Chos’ conplaint.?
Briefly stated, the complaint in this case was filed by
calvin, a school custodian, and his family, i.e., hie wife, Hee,
their two sons, David and Tenny, and their twin daughters, Karen
and Sharon. The Chos sought damages for injuries allegedly
caused by long-term exposure to lead, mercury, and arsenic during
their ten-year occupancy of a governnent-leased cottage on the
grounds of Washington Intermediate School, now known as
Washington Middle School, located in Honolulu, Hawai'i. The
complaint alleged negligence and breach of warranty of
habitability of leased premises [hereinafter, breach of varranty]
against the State. The central issue -- challenged by the Chos
both on direct appeal and on application -- involves the trial
court's authority to reconsider a discovery sanctions order three
+ plese otherwise stated, the Honorable Eden Elizabeth Hifo presided
over the underlying proceedings. Further, the phrase “trial court’ in thie
pesorandun opinion specifically refers to Judge Hite.
+ paehough de ultimately agreed with the trial court's finding in favor
of the State, the 1cA vacated the suguet 25, 2008 firee amended Judanent and
Feeanded the coe to the trial court for, inter alia, reentry of jusgnent in
Hover of the State on all counts in the Complaint. the ICA cbeerved that che
August 25, 2005 first enended judguent referred to the Chos’ comp
tedcend aiendea complaint’ shen, in fact, the chos filed only one complaint.
Sumary Disposition Order (S00) at 21. Hlowever, the ICA concluded that such
ustake did not render the August 25, 2008 first anended Juégnent non-
Sppealable. £00 at 11. The ica relied upon (2)
fiitoter Vehicles, 99 7.24 326 (Or. Ct. App. 2004), aff"d, 120 F.3d 29 (Or
Gt. App. 2005), for the proposition that a “clerical mistake did not prevent
Seatry’ of judgnent under pertinent statutes and thus judgrent was enforceable
and appeslable® and (2) Haval'd Rules of Civil Procedures (HRCP) Rule 60(a)
(2007), which authorizes the exial court to correct clerical errors. S00 at
preety}
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years after it was isaued by the trial court. The sanctions
order was imposed as a result of the State's failure to produce a
fifty-five gallon drum, which contained debris collected from the
now-denolished cottage, that wae eventually shipped to a toxic
dunp eite in Utah, The trial court initially sanctioned the
State by barring it from contesting the contamination of the
cottage. Three years later, the trial court, in granting the
State's notion for reconsideration, essentially vacated its
initial sanctions order and, instead, barred the State from
introducing evidence of any tests it had perforned on the debris
contained in the drum, After a jury-waived trial, the trial
court concluded that the Chos “failed to prove by a preponderance
of the evidence that [the State] was negligent and/or any such
negligence was a legal cause of [their] injur[ies]." The trial
court further concluded that the Ches failed to prove their
breach of warranty claim.
In their application, the Chos maintain that the Ica
gravely erred when it affirmed the trial court’s reconsideration
of the initial sanctions order inasmuch as: (1) the tine to file
a notion for reconsideration under HRCP Rule 60(b) (2007), quoted
nfra, had passed; and (2) the State merely reargued iss
already raised and heard by the trial court. The Chos also
contend that the ICA gravely erred in affirming the trial court’
Aismissal of their claims because the trial court failed to
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address all of the elenente of their negligence and breach of
warranty clains.
Although we believe that the ICA erronecusly failed to
determine whether the trial court abused its discretion in
reconsidering ite initial sanctions order, we nevertheless affirm
the ICA’s May 8, 2007 judgment on appeal based upon the reasone
discussed below.
A. Factual
Since 1975, Calvin worked as a custodian for the state
Department of Education at Kalihi Uka Elementary School. In
1985, Calvin became the head custodian at Mashington Intermediate
School (the school). From April 1965 to the end of September
1995, the Chos lived in and rented -- from the state for $50 per
month -- a two-bedroom cottage (the cottage) located on the
school grounds that was made available for the school’s head
custodian.?
> when the Chos soved into the cottage in April 1985, Calvin was fifty-
cone yeare old; Hee wae fifty; David wae twenty-one; Tensy wae fifteen; and
Karen and Sharon were thirteen.
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‘The cottage wae built around 1920 and was located on
property owned by the Boys and Girls Club of Hawai‘, which it
leased to the Stat
According to the Chos,*
when they soved into the cottage, st was dirty and had
Uesuites. “The paint wae peeling, the ficore were stained,
and the indove were painted over, The Chos patched the
fCinite Gensge, palaced the interior and exterior with paint
Supplied by the {elchool, cleaned the floors, and scraped
the windows.
spo at 2.
In December 1989 (nearly four and a half years after
the Chos moved inte the cottage),
the state hired private architect Gerald Inouye to inspect
the condition of all ite custodial cottages. Inouye
Seported that the [cloteage vas well-cared for and "very
clean,” despite “cone termite The root was
coneldered “very old" and bad “leaks,” but no repaire wert
Sone by the State becsure “a nev root would have cost nor’
then §3,000, exceeding svailable funds,” and “exceeded the
Allowable repair sncunt per Depertnent of Education policy
Of twice the annual rent{(.]*
Id. (original brackets omitted). However, as a result of
calvin's subsequent requests for repairs, the State had its
facilities maintenance enployees inspect the cottage exterior to
determine the economic feasibility of maintaining and repairing
the cottage. During this inspection, which occurred on May 12,
1995,
Steven Nong, a facilitses maintenance employee of the
Departnent of accounting and Ceneral Services (GAGS), tested
the exterior of the (clettage for lead paint. the strip
test for lesd peint was positive. The State determined that
fepaix and saintenance costs wosid not be economically
4 the majority of the factual and procedural background are taken from
che Icke susmaty disposition order (S00), uhick, in turn, relied upon the
Erlal court's Findings of fact. (POFs) and ‘Conclusions of Law (COLs). The
facts Go not appear to be in dispute. indeed, the Chos did not challenge on
appeal before the ICA ~- nor do they challenge on spplication to this court —~
ahy of the erial court's Fors.
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Feasible end decided to demolish the [elottage. calvin vas
notified by letter{, dated July 24, 1995,] that the rental,
agrecrent for the [clottage would not be renewed and that
the Chols) mist vacate by the end of August 1958." The
letter did not disclose the results of the strip test for
lead. The Choe asked for more time to nove for stated
fizsncial reasons. The State gave the Choe until Septerber
30, 1998 to vacate. "The Chos vacated on of about Septenber
30; 1995 snd soved into a hone they owned in Kapolei [4]
‘The {cottage vas denolished on oF about Jeruary 26,
isse.14)
Id, at 3-4,
on or about April 25, 1996 (three months after the
demolition of the cottage),
Calvin called the state inspector, who inforned Calvin that
the May 1995 strip test for lead sae poeitive, Calvin
Innediacely sought and obtained the report and began his ow
Suvestigation. In carly July of 1596, Calvin returned to
the tite of the {demolished clottage to collect samples of
nips, and water. It ie unknown whether the
id paint chips vere from the interior of the
[elottsge. ‘Calvin tock the eanplee he collected to inalabl,
a toxicolegy laboratory," . = for testing. the inalab
fest of the paint chipe indicated a high level of lead and a
very low level of sereury. The Inalab test of the water
Undleated low and unremarkable levels of lead and detected
no rereury.
In July 1996, when their blood, hair, and urine teste
Andicated the presence of lead, mereury, and arsenic 4m
their bodies, the Chos underwent chelation therapy to renove
the metals ffom their bodies. At various tines #fom 1596
Enrough 2002, cach of the Choe submitted nusercus tamples of
their blood, ‘heir, and urine for laboratory teste to
Getermine lead, arsenic, and mercury content, iecesced
pore fully infzal-
+ puring the tine they had rented the cottage, Calvin and Hee acquired
two houses -- ene in Kepole! and ancther on Vaicnea Street, -- both of which
they Jesced to tenante. The record also reflects that the Chos sold one of
thelr hovses in order to pay for the instant lawsuit. As Celvin testified, “T
had to sell one house . .'. for the medical expenses ang court expenses. nd
so out of selling of the house, I's using that money for the court and the
eaiea expences
4 ‘the denolition was done by a company hized by the Boye and Girls Club
of Havai'l with the State's permission.
> analab provided “services primarily in the fields of forensic
toxicology, Basic Iaboratory services, industrial hygiene, end environmental
service
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on Octcber 4, 2996, the state had Brewer Environmental
services{, an independent testing company, (Brewer)] collect
shoo’, paint chips|,) snd soil camples from the site of the
Genolitned [clottage » - «+ Teste of the (vood, paint
chips,
Ye
Eorser site of the (clottage were then collected in = drum
and shipped to a toxic dump site in Grassy Mountain, Utah
Ida at 4-5.
B. Procedural History
1. ‘The Complaint and the Orders Compelling Discovery
soil samples] chewed elevated but not hazardous
Of lead. “Fifty-five gallons of debris from the
on May 12, 1997, the Chos, proceeding pro se,"
£510@ a complaint alleging that{,) “during the tine they
rerided in the {cottagel, the chos were poisoned by lead and
uercury through exposure’ to paint and other sources in the
Telotteger and vere seeking general and special dansges
caused them (sic) by the state's (1) negligence and (2)
Breach of warranty (0)
S00 at 5 (original brackets omitted). As previously stated, in
early July 1996 (after the January 18, 1996 demolition of the
cottage), Inalab, at Calvin’s request, tested paint chips and
water taken from the debris of the demolished cottage, which
tests showed a low and unremarkable level of lead and no mercury
in the water samples. the teste also revealed a high level of
lead and a very low level of mercury in the paint chip samples.
on June 2, 1997, three weeks after the filing of the instant
complaint, Inalab tested water and paint chip samples for
arsenic, which were negative
on March 4, 1999, the chos requested production of the
“fifty-five gallon drum containing wood debris left from the
demolition of the [cottage] . . . , which Brewer . . . collected,
4 shortly after the £i2ing of the complaint, the Choe retained counsel.
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tested, and removed at [the State's] instruction[,]" for testing
purposes. On July 14, 1999, the State filed a “notion to quash”
the request, arguing that:
‘The requested fifty-five gation drum is buried in a tanéfi21
located [ia] Grassy Mountain, Utah. The drum vas placed in
the Utah landfill at the administrative convenience of
Brever. .- , and sot at the direction of the State.
Further) ihe fequested item ie not with: snes:
vont rel of the grate [and. there! pest of retrieve
ould be Si5,.0001.
(Emphasis added.) After a hearing, on Septenber 20, 1999, the
circuit court, the Honorable Gail C. Nakatani presiding, entered
its written order, denying the state’s sotion [hereinafter, the
aiscovery order]. specifically, the discovery order stated that:
‘THE COURT... PENDS that dt de catiefieg that the
that the. [c]otes
particularly evident by the exters
Ebut may 12, 1598." Instead of
Feconvended ty Dr. (Ajit) Arora, ("] the State alloved the
[elottage to be denolished and removed to a Local lendfiil
in Pebrasry 2996, Subsequently, om October 25, 2996[,]
Hiety-five gallon érum of {clottage debris vas collected and
Eventually shipped to Grassy Mountain, Utah.
IE 18 FURTHER ORDERED, ADJUDGED' AND DECREED that the
[state] shall be required to produce the fifty-five gallon
drum at ite ow expense to (the Chos] in Hawai'i for testing
purpe!
+ ns dlecueted infra, Dr. Arora conducted an independent evaluation of
celvin in connection with he workers’ cowpeneatéon claim for chemical
Sensitivity. in hie Novenber 22, 1995 report. (two monthe after the Cho
Yacated the cottage), Dr. Arora stated in relevant part that:
(tlhe most inportant aspect of Mr. Cho's care at the present
tine chould be addressing his nercury poisoning,
Tnvestigating hs hone eavirennent, and getting the Health
Departuent involved in figuring out who ele is being
exposed to sercury in hie hone environment and how. Once
the mercury poisoning has been treated and his blood le
brought below 10 micrograms per iter, one would have t
give a(t] least a year's worth of tine before one could
Gctermine how much improvenent has ocurred after treatrent
of mercury poisoning.
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‘Thereafter, on September 28, 1999, the State moved for
reconsideration of the discovery order, pursuant to ERCP Rule
60(b) (2) and (6) (governing relief from judgment, order, or
proceeding for euch reasons as “mistake, inadvertence, surprise,
or excusable neglect"). ‘The State essentially argued that it did
not have knowledge that the cottage could be a cause and source
of toxic exposure to the Chos when the fifty-gallon drum wae
shipped to Utah. To the contzary, the Chos responded that:
‘The State has taken the position that the drum of
Construction debris was not toxic, yet, instead of nerely
Storing it at a state facility, St went to the trouble of
Shipping the denrie sll the way to Grassy Mountain, Utah
a federally licensed toxic facility. There the drum was
foried in landfill under tone of coil and asbestos
Containing tage and contaizers[.J .. . Upon further
Ioguley te eanegenent of the Grassy Mountain Facility in
bse, [the Choa)’ attorney was adviced .. . that the drum
Gould be recovered but it vould cost. approximately
$350,000.00 [=~ ae opposed to $15, 000-00 initially stated
yitherseate'in ste setion to quash ==} in expense to do
on March 3, 2000, Judge Nakatani denied the motion, finding that
the state
sought relief pursuant to HRCP [Rule] 60; however, (the
State] failed to demonstrate "mistake, inadvertence,
‘or excusable neglect." In support of the motion,
the state] provided three stfidavits[) which could have
been provided with ite original motion and repeated the sane
arguments.
‘The state did not produce the fifty-five gallon drum.
the state provided affidavite of: (1) Leslie K. L. Au, a
toxicologiet, which attested that = [l}ead paint on ones in not toxic to
persons six yeare and cléer without active ingestion of quantities of large
Efeinle flaxee of paint’y (2) Dr. Arora, who stated that, in his Novenber 22,
see report. (ace susra note 9), he “did not intend that the state or any other
HElic Agency ehould conduct an investigation of the exterior or interior
Bult of the cottage, ef any wood material ceed in the construction of the
‘ded in by Calvite(;] and. (3) Kevin Mizuno, who tested the soil and
ae the request of Brewer.
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The orders Imposing Discovery Sanctions
on Septenber 1, 2000, the Chos moved for sanctions
nections for failure to
under HRCP Rule 37(b) (2007) (governing
make discovery), requesting either an entzy of a default judgnent
or a sanction barring the State from contesting the contamination
of the cottage, pursuant to Hong v, Citv & County of Honolulu, 66
Haw. 369, 665 P.24 187 (1963). Responding that retrieval would
now cost $1 million, the State alternatively suggested that the
trial court follow the Hong court by ordering that
tthe State will be estopped from contesting the presence of
Yeed, sercury or arsenic in the vood chips of the denoliched
eottige, but leaving it to (the Choe) to meet thelr burde
Of proof on these “facte" by competent evidence
on Decenber 22, 2000, the trial court entered an order, granting
in part and denying in part the Chos’ motion (hereinafter, the
initial sanctions order]. The initial sanctions order
specifically stated that:
A, Kith respect to [the chos’] request for default
Judgnent, ‘the request is denied.
B. With respect to [the Cho
Uisposing eanctions
granted as follows:
2. (Te State) vas negligent in that ie
kad a custodian [e]ottage which contained toxic
Chemicals, nanely lead, sercury and
sreenie ‘Erén April 1985 to septenber 1995.
2. (The state) ie estopped from claining
chat the custodian lelottage {aié not) contaia(]
toxic chenicale, nately, lead, mercury and
areenie, which were the byproducts of cther
Substances which were the cause of the toxic
Ghenicale in the custodian {clottage from April
1985 to Septesber 1955.
3. (the State) ie estopped from denying
that the ches have actually been exposed to. 8
dceage within the cstablicned range for vnich
there {¢ an establighed causal relationship
Between exposure to the texine(,] namely lead,
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—_—_—
mercury snd arene, and the occurrence of
Gisesee from april 1985 to Septenber 1995.
‘4. the State shall not be estopped from
accerting ite clains as to proximate cous
Conparative negligence, sssunption of risk or
Sy cther affirmative defenses against any other
party in this action.
In other words, the initial sanctions order appears to have
resolved thé duty and breach of duty elenents of negligence” in
favor of the Chos, i.e., finding that the State was negligent.
As the Ches cbserved, trial wae, therefore, to be limited to the
remaining two negligence elements -- causation and damage:
However,
ola December 13, 2002, the state di
president /lead toxicologiat Mark Hot
Ezsadone stated in bie deposition that the laboratory teste
conducted ca the .. « samples [that Calvin collected)
Showed sonchasardous levels of lead and “ineignificant
Jevele of arsenic and sercury."
on December 32, 2002, [two years after the initial
wnetione order,] the State flied a (tnon-hearing motic
for {x]econsideration(, citing HNCP) Rule 60[, discussed
[nica]. Eleven monthe Jater, on Nevenber 5, 2003, without a
Abii. tthe tetal coure) entered an order granting In part
and denying in part the state's [motion for reconsideration
(ene anended eanctions order)], implicitly vacating t
[inielal eJanceions (elrder, ahd stating that:
(2) The (trial clourt . . . imposes the
lege severe sanctions which axe cet fort!
the) seate’e supporting sencrandon at page 22,
se follows: —[DJuring the trial[,] the State is
Precluded from using Brewer Pindings and Report;
i) only the inalab findinge are cdmissibiey
state]. (3) at trial{,] the inference will be
cade that, if (ene fifty-five gallon drum vae)
Tested, the results would have been sinilar to
Eanpies that the chos abeained and that were
tested by Inalab.
qe de vell-eatabliched that, in order for a plaintiff to prevail on
a negligence claim, the plaintif® ie required to prove ail four of the
Secefeesy elenente of negligence: (1) duty; (2) breach of duty: (3)
eetetlox, and (4) demoges. Takavana v. Kaiser Found, Hoep,, 62 Havai'i 486,
GSeras, 92s pead 903, 915-6 (1996) (eitation omitted).
ae
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on January 3, 2004, pursvant to ERCP Rule 68 (2007)
(entitled, “offer of eettlenent or judgeent,*)) and Haval'd
Rules of Evidence, Rule 408, the state served on cach of the
Choe « 200 per pereon offer of eettlenent. All of the Cho
rejected the offer.
spo at @ (original brackets omitted).
3. The Trial Proceedings
A jury-waived trial conmenced on February 17, 2004 and
ended on March 5, 2004. As discussed in more detail in the
Discussion section, infra, nuverous witnesses testified on behalf
of the Chos, including, inter alia, medical experts, as well as
each member of the Cho family, i.e., Calvin, Hee, David, Tenny,
Karen, and Sharon. The State also presented their own medical
expert witnesses.
on the last day of the trial, March $, 2004, the trial
court ordered the trial bifurcated, informing the parties that it
would first rule solely on liability and causation, and reopen
for evidence of darages if the Chos prevailed. on April 5, 2005,
the trial court i
ed its FOPs and COLs, finding in favor of the
state. Specifically, the trial court found that:
59. there {8 no credible evidence of [the Choe]
texle exposure to arsenic, lead or mercury from [the
State) ’e cottage.
60." There {e no credible evidence of sny physical or
peychological injury to any of the [ches] as a result of
Eisenic, lead or mercury from [the State] 's cottage.
i, There Is no credible evidence of economic injury
go any of the [chos) se result of arsenic, lesd oF mercury
fom {the State]'s cottage.
Consequently, the trial court concluded that:
1. [the Choe} have failed to prove by a preponderance
of the evidence that [the State] was negligent snd/or that
any such negligence was a legal cause of injury to any
Inenber of the chos) -
oa
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[the chos] failed to prove their claits of breach
of warranty of Hsbitability |... as set forth in Lenle wv
Exgeden, $1 Kaw. [4]26{, 4€2°P.24 470] (1369) [4] or
otherwise.
3. {The Chee] failed to prove any and all of their
elaine by a prepender
Judgment etall enter in favor of the [state] ané against the
{chee}.
‘The trial court entered judgment for the State on June
27, 2005, Thereafter, the Chos filed a notice of appeal on
August 25, 2005. Two days later, on August 25, 2005, the trial
court iesued its firet amended judgment.
4 the Lemig court recognized the application of the theory of inplied
warranty of babltebility to residential lessee, explaining that:
tt has cone to be recognized that ordinarily the
lessee doce not have ae mich knowledge of the condition of
Dreniece se the lessor. Duilding code requirenente and
Vlovstions aze know or made known to the lesor, not the
Tie is na better position to know of latent
Structural and otherwise, ina building which might
to unnoticed by a lescee who rarely has sufficient knowledge
of expertise £6 see oF discover thi
Td, at 432-33, 462 7.26 at 474 (citation omitted) (format altered). The Lene.
doiee sizther’ cbeerved that, “"[{]n considering the sateriality of an allegea
Breach, both the seriousness of the cleined defect and the length of tine for
Which dt persiete are relevant factore. Each case suet turn on ite own
facto." Id at 436, 462 P.2d at 476
ne the Tea noted:
[t]he appeal ie not tinely if applied to the June 27, 2005
fosgneatl, fee Heval't mules of Appellate Procedure ‘(HRAP)
fale 4 (a) (2). (2009) (ten a civil appeal de permitted by
Jaw, the notice of appeal shall be filed within 30 cays
after entry of the Judgrent or appealable crder.")
Hlonever, since the June 27, 2005 judgeent did not identity
the claim for which it wae entered, 1€ ie not an appealable
fucguent under [Havai'l Reviced statutes (Hs)] § 641-1 (8)
(3993), [RCP Rule] 58[,] and the holding in Jenking va
gages fa leming &/ieiahe, 76 Hawaii 128, 119, 668
P.2a i334, 2538 (1584).
po at 12 25.
% the Choa’ August 22, 2005 notice of appeal ie 2 tinely appeal from
the august 25, 2008 firet ancnded sudgrent. fee HRAP Rule 4(a) (2) (2007) (cxf
s'Sotice cf agpeal se filed after snnouncevent of o decision but before entry
Sethe jusguent or order, uch notice stall be considered as filed innediately
(continued. --)
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Appeal Eefore the ICA
on their di
ct appeal, the Chos contended that the
trial court: (2) lacked jurisdiction to reconsider the initial
sanctions order pursuant to HRCP Rule 60(b) when, inter alia, the
time period to bring such motion had passed and the State offered
no new evidence or arguments that could not have been raised
previously; and (2) failed to make findings regarding all of the
elements of negligence and breach of warranty claims." On April
18, 2007, the ICA issued ite Sb, cesentially affirming the trial
court's conclusions, discussed more fully infra. SDO at 13-14,
on May 8, 2007, the ICA entered its judgment on appeal.
‘The Chos timely filed their application on August 6, 2007."
4(. continued)
after the tine the judgrent or order becones final for the purpose of
appeal.*)-
™ the Chos also disputed the trial court
arount of $59,402.56 to the State. However, thi
the Choe of
Sehe record
$59; 4021-56)
of the aura. 5 constquentiy,
Erial court for an itemization of the co
the state. 650 at 16.
it declined to cecige the valiaity
1e ICA ressnded this secue to the
‘the chos were ordered to reinburse
on August 21, 2007, the state filed ite response to the Choe!
application. erein, the State argues, inter alia, that the Chos
application is untinely incamich an the Joh's 60 tan filed en 99f42 28, 2007.
Eke Rote 0:1 200") provides dp'televane part chat "fnlo tater then 96 aye
After the #iiog of the [ICA's ercany. party ay appa
in testing to the. suprene court fora wilt of certicrari.*” (anguatie nese)
As previously indicated, the 1cx'a Sadgvent was filed on Nay €,"2007 and the
Shoe filed their application on Auguste, 1007 ~~ the ninccleth cay.
o14-
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TT, STANDARDS OF REVIEW
AO cert:
This court reviews the deciaion of the ICA for
(1) grave errors of law or of fact or (2) cbvicus inconsistencies
in the decision of the ICA with that of the suprene court,
federal decisions, or its own decisions. IRS § 602-59(b) (Supp.
2006).
B. son sderatior
othe trial court’ ruling on a motion for
reconsideration is reviewed under the abuse of discretion
standard." Ass’ partment Owners ea Blua v. Waile
Resort Co., 100 Hawai'i 97, 110, 58 P.3d 608, 621 (2002)
(citation omitted). An abuse of discretion occurs if the trial
court has “clearly exceeded the bounds of reason or disregarded
rules or principles of law or practice to the substantial
detrinent of a party litigant." Amfac, Inc. v. Waikiki
Reachconber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (2992)
(citation omitted) .
TIT. DISCUSSION
on application, the Chos argue that the ICA committed
grave error: (2) when it affirmed the trial court’s decision to
set aside the initial sanctions order and impose a lesser
sanction against the State; and, (2) when it affirmed the trial
court's diemieeal of the Chos’ negligence and breach of warranty
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clains without addressing all of the elements of those clains.
We address each contention in turn.
A 4a] Court's Reconsideral “
order
As previously stated, the trial court issued the
initial sanctions order on Decenber 22, 2000. Two years later,
on Decenber 31, 2002, the State filed its motion for
reconsideration, citing HRCP Rule 60. Eleven months later, the
trial court granted the State’s notion, issuing an anended
sanctions order on Noverber 5, 2003 (nearly three years after the
initial sanctions order). On appeal, the Chos challenged the
trial court’s authority te reconsider ite initial sanctione
order. Specifically, the ches argued that the trial court erred
An reconeidering its initial sanctions order because: (1) the
time limitation to bring a motion for reconsideration under HRCP
sed, and, thus, the trial court was without
Rule 60(b) had p:
Jurisdiction; and (2) the State failed to adduce evidence that
the natters raised in ite motion for reconsideration could not
have been raised in the earlier proceeding. However, the ICA, in
its S00, addressed only the first issue and made no nention of
the latter. Specifically, the ICA -- without analysis --
sunmarily concluded that the trial court did not lack
jurisdiction to enter its anended sanctions order, thereby
replacing its initial sanctions order. D0 at 13. The Chos
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raise the identical icoues in their application, which are
addressed below.
1
Whether the Trial Court Had Jurisdiction to
Reconsider the Initial Sanctions Order
‘The Chos contend that the trial court erred in
considering and granting the State’s motion for reconsideration
and that the ICA gravely erred in affirming the trial court's
decision to do so. Specifically, the Chos argue that:
First, the state's notion cited “Rule 60,* but 44 not
Feference any section of the rule or authority interpreting
ie. See Ditto v, Mecurdy, 103 Hawas't 183, 80 P.3d 374
(Zi03) ("bitte completely faile to argue or explain how any
of the provisicns of HRCP Rule 60(b) are inplicsted.-)~
Moreover, "Rule €0(b) tpplies to notions seeking to amend
final orders in the nature of Jedgrente, Tratevings Hotel
vi Cochran, 8 Haw, App. 256, 262, 789 P24 60. (1990), and
helther Judge Nakatant'e. (@iscovery order] nor Judge’ Hifo's
[initial esnctions order) were final sussnenta or order
Second, eesuming RCP Rule 60(b) applies, the seat
notion vas Bleed on mistake, new evidence and fraud, and
therefore “shall be made. . - not nore than one year after
the juaguent, order OF pro Cecding vas entered or taken.”
RCP Rule €0(b) (.1
“Third, aesuming Rule 60(b)‘s time Limitations did not
apply, this motion for reconsideration “failed to séeuce
evidence that such satters could not have been rained during
the earlier hearing.” gank of Haveli v.-Kuninote, 52
Hawai 427, 438, 964 P.2d 1253 (app. 2997)
HRCP Rule 60(b) provides in relevant part that:
Op motion and upon auch terns as are just, the court
say relieve a party oF a party's legal representative from a.
ss for the following
(G) alstake, inadvertence, surprise, or excveable
(2) newly discovered evidence which by due
Giigence coula not have been discovered in tine to sove for
2 nev trial under Rule £9(b); (3) fraud (whether heretofore
Geneminated intrinsic oF extrinese), mierepresentation, oF
(4) the Judgment is
Void; (5) the Judgnent hae been catiafied, relesced, oF
Glecharsed, or # prior judgeent opon which Se 1s faced has
been reverted or cthervice vacated, or it ie no longer
equitable that the judgrent should have proopective
ication; or (6) sny cther reason justifying relief from
the operaticn of the Juégnent. The notion chall be rade
within a ressonable tine, and for reasons (1), (2), snd (3)
dot sore than one year after the judgrent, order, Or
proceeding was entered or taken.
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(emphasis added.) This court has noted that the ERCP do
ation, Cf, HRAP Fule 40(a) {(*Motion for
Feconsideration’)]; Havas" Family Court Rules Rule 59(b)
[New erisle, reccneiderstion of snencnent of Sudgrent and
crdere")},, Haval't appellate courts, however, have
Fecognized that a action for reconsideration can be filed
pursuant to HCP Rule 59(e) (notion to alter or anend
Sadguent) ‘or SCP Rule 60° (notion for vellef from judgrent
or oxeer)
Soderlund v. Admin. Dir. of the Courts, 96 Hawai'i 114, 119 n.7,
26 P.3d 1224, 1219 n.7 (2002) (internal quotation marks and
citation omitted). Nevertheless, the ICA has also observed that
a motion for reconsideration, pursuant to ERCP Rule 60(b), “is
authorized only in situations involving final judgnents.* crow
Prope. Inc, ¥. Fin, Sec, Life Ins,, 6 Haw. App. 105, 112, 712
P.2d 504, 509 (2985); see algo Tradewinds Hotel, Inc. vs
Cochrane, @ Haw. App. 256, 262, 799 P.24 60, 65 (1990) ("Rule
60(b) applies to motions seeking to amend final orders in the
nature of judgnents.” (Citation omitted.)). Indeed, by ite
terms, Rule 60(b) only applies to a “final judgment, order, or
proceeding." This court has defined ‘final order* to mean “an
order ending the proceedings, leaving nothing further to be
accomplished. Consequently, an order is not final if the rights
of a party involved renain undetermined or if the matter is
retained for further action.* Bocalbos v, Kapsolani Med. ctr.
© Analogously, the Advisory Committee Notes (2946 Anendnent) for URCP
Rule 60's federal counterpart, Federal Rules of Civil Procedure (FRCP) Rule
Colby, explained that “(eb tadition of the qualifying word final’
Sep the character of the judgrents, ordera oF proceedings from which
foie ¢0(b) affords relief." See also stailard v, Consol, aul. nea, 103
Hawai 468, 475, 03 P94 732, 738 (2008), ‘@ (rncb]-are substantially
binilar te the ERCP, we lock ‘to federal case law for guidance.)
wae.
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—_—_——
fox Wonen & Children, 89 Hawai'i 436, 439, 974 P.2d 1026, 1029
(1999) (inte:
1 quotation marke and citations omitted).
Clearly, an order imposing sanctions under HRCP Rule 37 for
failure to comply with a discovery ord
as here, is not a final
order. See Cunningham v, Hamilton County, Ohie, 527 U.S. 198,
200 (1999) (holding that an order imposing eancticns ia not a
final decision). Further, a final judgnent or order had not yet
been entered at the time the State filed its motion for
reconsideration. Ae euch, the initial sanctions order wi
merely
interlocutory. Accordingly, relief pureuant to NRCP Rule 60(b)
was not available in relation to the aforenentioned sanctions
order. see alse Advisory Conmittee Notes (1946 Amendment) to the
FRCP Rule 60(b) (observing that “interlocutory judgments are not
brought within the restrictions of the rule, but rather they are
lefe subject to the conplete power of the court rendering them to
afford such relief from them as justice requires").
Moreover, as the State pointed out in its answering
brief:
se fst sz py te ni pg
Tie regia Jeary dal gate
oo eee
BLLELE Sie eile shetty
ipahand' did cieataie 2 imeieas
cision Gr eaann an ER
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We agree with the State to the extent that the trial court has
inherent power to reconsider interlocutory order:
See, 2.c4,
Fayetteville Investors v. Commercial Builders, Inc,, 936 F.2d
1462, 1469 (4th Cir. 1991) ("An interlocutory order is subject to
reconsideration at any tine prior to the entry of a final
judgnent."); Peterson v, Lindner, 765 F.2d 698, 704 (7th Cir.
1985) (notions for reconsideration of interlocutory order cannot
be properly characterized ae a motion under FRCP Rule 60(b)
“[elather, the motion must be considered to be directed to the
court's inherent power to modify or rescind interlocutory orders
prior to final judsnent*) (citation omitted). “Of course, if the
order [is] interlocutory, [the trial court] hals] the power to
reconsider it at any time before final judgment." Id, (citation
omitted). As another court stated:
Rule 60(b)"s primary purpose is to
Of a closed case or a final order;
Dlvays bas the power to modify earlier ordera in a pending
‘esehout relying upon Rele 60(b)- And, it is well
tablished that a district court has the inherent pover to
yeconsider interlocutory orders and reopen any part of &
fare before entry of final judgeent. Woreover, thie
\othority ie not predicated on any federal rule, But
enanates from the isherent power of the court. ‘Not only is
svsotion to reconsider an allowable method of reviewing @
prior order, it is the ost appropriate and advantageous
fethod of |
king relief from an interlocutory order for
party to pursue.
Fisher v. Nat'l RR. Pascencer Corp,, 152 F.R.D. 145, 149 (S.D.
Ind. 1993) (internal quotation marks, citations, and original
brackets omitted) (emphases in original); see also Greene v
fe Ins. Co, of am, 764 F.2d 19, 22 (ist Cir. 1985);
cf. also BRCP Rule $4(b) (2007) (providing that interlocutory
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oréers that resolve fewer than all clains are ‘subject to
revision at any tine before the entry of judgment adjudicating
all the clains and the rights and liabilities of all the
parties"). Stated differently, the trial court possesses the
inherent power to reconsider ite initial sanctions order at any
time prior to the entry of final judgment. Accordingly, the ICA
correctly concluded that the trial court had juriediction to
reconsider ite initial sanctions order.
2. Whether the Trial Court Abused its Discretion in
Reconsidering the Initial Sanctions Order
The Chos maintain that the trial court erred in
reconsidering the initial eancticne order because the ‘motion for
reconsideration failed to adduce evidence that such matters could
not have been raised during the earlier hearing." (Internal
quotation marke, citation, and original bracket omitted.) As
previously stated, the 1CA’s S00 was eilent with respect to thie
i
It ie well-recognized that the trial court’s inherent
euch as the initial
power to reconsider interlocutory order:
sanctions order, at any tine before final judgnent 1s not without
restrictions. Althcugh the power of reconsideration is committed
to the sound discretion of the trial court, Ass'n of Apartment
owne: wi ua, 100 Hawai'i at 110, $8 P.3d at 621, @
motion for reconsideration is limited in scop
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[t]he purpose of a notion for reconsideration is to allow
the parties to present new evidence and/or argunente that
coula not Have been presented during the earlier adjudicated
Setion. Reconelderation Je not a device to relitigate old
matters or to raise argusente or evidence that could and
should have been brought during the earlier proceedin
Sousaris v. Miller, 92 Hawai'i 50s, 513, 993 P.2d 539, 547 (2000)
internal quotation marks, citations, and
(original bracket
footnote omitted) .
Preliminarily, we reiterate that, in its memorandum in
opposition to the Chos’ motion for sanctions, the State argued
that the fifty-five gallon drum
Ae not within the care, custody or contro} of the statel
and ite retrieval under the circumstances is not practical
[insemich se the cost to retrieve the rum vas eativated at
§1 million). ‘Further, the Department of the Attorney
General ceed not have the ability to comply with the
Tdiscevery créer] since ite entire budget for litigation
GSpensea for the curvent fiscal year ie spproxicately $1-4
million{,] from which it mist pay for all the litigation
Cnpenses for the year, with two specific cese exceptions not
Selevant here; and the prior yeare budget was similarly.
[faited, "Purtner, the value Of the instant case ie legs
than [the] $2 siliion . . . required to be spent in recovery
of the drum,
‘The State further indicated that it is unaware of any
statute waiving the state's sovereign ssmuniey with respect
tov ceurt ordered sanction, let alone one for in essence
he million doliare!. Zt {e evident that (the trial court]
888 not know of the cost of retrieval, since the only
figures before her were for $15,000.00 initially, then
$280,000.00 on the notion for relied from the [aisccvery
Order]. Therefore, thle trial court) should not now insist
fon production, shich (would) {n essence be tantancunt to a
SCelelal sbecgetion of sovereign inmunity and e judsuent
Against the state for che million dollars.
Lastly, the State urged the trial court to fashion a sanction
eimilar to the cne in vong v. City & County of Honolulu, 66 Haw.
389, 665 P.2d 157 (1983), in which this court affirmed a sanction
that essentially estopped the City and County of Honolulu (the
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ee
city) from claiming that a traffic signal control box was
defective in design or manufacture,” stating that:
[me trial) court could order that the state wil be
dotepped from contesting the presence of lead, mercury or
Sreenle in the wood chips of the demolished cottage, Dut
Setving it to the [Choe] to sect their burden of proof of
these “fact” by competent evidence.
As previously indicated, the trial court’s initial
sanctions order, filed on December 22, 2000, provided that the
State wae estopped from, inter alia,
[(2)] claiming that the custodian cottage contained toxic
eicsis, samely lead, sereury and arcenie [and (2)]
Senying that the (Choe) have actually been exposed to a
deeage within the established range for vhich there ia an
EGtablssned caveal relationship between exposure to the
Eexine » «and the occurrence of diseese from April 1985
to septenber 1995.
‘two years later, on December 31, 2002, the State filed
a notion for reconsideration, arguing that:
Although (HRS) § €03-21.9 gives the courts authority to
Zechion appropriate sanctions, in HRS § 662-2, the state
Sete noe expressly vaive ite imunity from such sanctions
The {trial} court’ order that the state had to provide the
Teiety-five gallon drum of debria] at ite omm expense wan
Eiptancunt coe monetary sanction. “The order that the state
had to provide the (Srus] at a cost of $15,000 or nore vas
Egntancunt co judicial abrogation of the State's sovereign
Tmeunity. An order that the State must provide (the drum]
ata cost of approxinately $1 million would be tantenount to
judicial abrogation of the State's sovereign inmunity.
Binilarly, (RCP) Rate 37{,] which governe the types
of sanctions that the courts nay’ inposed for a party's
failure to take discovery, prohibite the sanctions that vere
inielalty, and subsequently{,] imposed on the State in this
Cove.” SHCP Rule 37(e) provides in pertinent part:
% The Hong case involved a personal injury action commenced by a
pedeatrian and ber parents agaizat the City for injuries sustained by the
Pegestrian at # street corner at which traffic lights were ralfunctsoning.
Reonaw, ae 90°91, €€5 F.2d at 59. In that cese, the City was cancticned for
olny aescrcyea the eignal control box.
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Repences Against the State. Except to the
extent permitted by statute, expenses and fees
Say not be awarded against the state or @ county
under this rule.
‘The [tr4a1) court crdered the State to retrieve and produce
the [Grun] at its own expense. Thst order vas an svard of
expe ‘That order was contrary to Rule 37.
(Emphasis in original.) Further, the State contended that the
initial eancticns were disproportionately severe inasmuch at
Anter alia,
the eciaion to denolish the cottage was made well before,
nd not because of, Dr. Arora’s Novenber 22, 1595 . « «
Feport regarding Calvia(.] Moreover, there ie no cvidence:
thet there was any communication between the facilici
Personnel vho nade the decieion to demolish the cottage, and
thote state attorneys who vere handling [Calvin's] workere”
conpensation claim shat would even suagest any sntent to oF
grees neghigence In not having [ehe debris) tested earlier
for the Heavy setale, or even suggest any deliverste
Spellation of evidence that might arguably be critical to
Stne lawsuit that had not yet Deen filed.” Yorecver, there
Exever seked the state for
(éitey"five gallon drum of cebrie) to
fe no evidence that
pernfesion to send ti
Sten.
(Emphasis in original.) The State also attached excerpts from
three depositions of (1) Dr. Hagadone, (2) Hong, and (3) Calvin.
However, as the Chos argue -- and we acree:
[elven if the state's three deposition excerpts vere "new
wvidence,* it nade no attenpt to show such raters could not
have een raiced during the earlier nearing. (The Chos]
filed their complaint in 1997, and the state did not take
[calvin)'e deposition until 2002, Stephen tong found lead
in the cottage valle in 1995, but vas not deposed until
2603. The state Iisted Dr. mark Hagedone ae an expert
wituges in ite Sancary 11, 1999, pre-trial etatesent, 20
snonthe before [the initial] sanctions hearing.
Based upon the foregoing, we believe the State’s motion for
reconsideration wae an attempt to re-Litigate the issues
presented in its menorandum in opposition to the Chos’ motion for
sanctions. Ae indicated aupra, a motion for reconsideration is
not an opportunity for a party to present a better and more
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compelling argurent th
ft the party could have presented in the
original briefs. See also Frietsch v, Refco, Inc., 56 F.3d 625,
828 (7th Cir. 1995) ("It ie not the purpose of allowing notions
for reconsideration to enable a party to complete presenting his
case after the court has ruled against him. Were such a
procedure to be countenanced, some lawsuits really might never
end, rather than just seeming endless.") ial Cos
cured Creditors of C v. Coopers & Lvbran
LLB, 222 F.3d 147, 167 (24 Cir. 2003) (*[W]here litigants have
once battled for the court's decision, they should neither be
required, nor without good reeson permitted, to battle for it
again.” (Internal quotation marke and citation omitted.)). The
State, therefore, failed to raise any arguments or offer any
evidence that could not have been presented during the original
motion for sanctions proceeding. See State v, Honolulu Univ. of
Arts, Sciences & Hunanities, 110 Hawai'i 504, 518, 135 P.3d 113,
127 (2006) (holding that the defendant “could and should have
raised ite. . . argument in its memorandum in opposition to the
frst
[plaintiff]’s motion for relief inasmuch as reconsideration is
ntiff}’s motion for relief or at the hearing on the
not a device to raise argurents that could and should have been
brought during the earlier proceeding") (citation omitted) .*
Giccretion in granting ies is
Gxpiain hew the argunente raised in ite motion for reconsideration were not
(Continued...)
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Consequently, the trial court clearly exceeded ite bounds of
reason in reconsidering ite initial sanctions order -- three
years after its issuance -- to the substantial detriment of the
ches, whose case was delayed for trial for another year. Anta
Inc., 74 Haw. at 114, 839 P.2d at 26. Consequently, the ICA
erroneously failed to address whether the trial court abused its
discretion in issuing the amended sanctions order, via its grant
of the State's notion for reconsideration.
(, .,continved)
argunente ‘that could have been valeed in the previcus motion for sanctions
Proceeding. In fact, the state attenpte to reargue the eanctione matter in
Tee response, contending -- ae it did before the trial court ~~ that:
the Choa] aia gather and teat their own samples of debria
even before the state had gathered and tested cemples, and
Therefore were not prejudiced in any way by the cut-of-evate
Sterage, and inability to retest the [the fifty-five gallon
Grom)... . There was no evidence that the State
deliberately destroyed or even sent [the drun] out-of-state.
In fact, it was nerely the fact that the cost of retrieving
the (drum) vas prohibleive.
™ the Choe, in their direct appeal, alo argued that that the stat
notion for reconsideration:
ignored the doctrine of judicial estoppel, and flatly
by predecessor counsel in
leadings and hearing argueent with recerd to law
‘sovereign ismuniey, (HRCP) Rule $5. [(2007)
concerning’ default judgrent)], and the legality of Judge
Hifo's [initial sancticns order]. Deputy Attorsey Ceneral
Charles Fell acknowledged that Judge Nakatani’s ordere were
the law of the case, stipulated that the cancticns imposed
G16 not viclated [uicP] Rule 55(e) [(relating to defaule
Sudguent against the State)) or sovereign icmunity, and
Senittea the Seste could have recovered che drum for $15,000
if de hae simply complied with Sudge Nakatani’ orders on
eine]
‘The chos further ceserted that the trial court/s decision to grant the state's
fotion for zeccnsideration violated the law of the case doctrine in that "the
State did zt argue, and Judge Hifo did not find, that cogent reasons
Surtified her Gecision to Sisresara the law of the case.’ The SCA, sowever,
Indicated thae it woule
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See
B lure to Aédrees All of the of Nealics
‘The Chos argue that the ICA gravely erred in affirming
the trial court’e conclusions when the trial court failed to make
adequate FOFs and Cols in that it did not address duty or breach
of duty with regard to negligence, or the elements of breach of
warranty. Specifically, the Chos maintain that the trial court
failed to make
(continued)
‘hot reach the question whether the [amended s] anctions
{elsder ignored the doctrine of Judicial estoppel by
SSENTg the" State 'co contradict the positions ite
predecessor counsel had tak{en) in ice 2000 pleading
fegegene that ted to [ene trial court's) [initial slanctions
feirder-
Tit would ats0) not reach the question whether the
doctrine of the law of the case, Querubin v. Thronss, 107
Havalt 4, 60, 109 P.94 609, 701 (2008), precluded ithe
trial court) #zom entering [ite anended ‘s}enctions (o] der
[hn place of her (initial elanctions (olrder.
00 at 14. The Choe, on application, made the came arguments as it did before
the Tex.
This court hae recognized that the doctrine of ‘aw of the case” is ™
rule of practice besed on consideration of efficiency, courtesy, and conity,
Flelefere, snlese cogent reasons support the second court's action, any
Milficaticn of a prior ruling of another court of equal and concurrent
Jurisdiction will be Geened an sbuse of discretion. Stencer v. Vincent, 92
faval't es, 362, 992 P-24 50, 57 (2000) (internal quotation marke, citation,
es original beseketa omitted). Alehough, in Tight of the above discussion
RES Ceseiueion, this court need not address these contentions, ve ckserve that
Seago bite aid not in any vay reconsider of reverse any of Judge Nakatani
Beate “Rather, Suage Hifo wae seked to feehicn a discovery sanction for the
Haters failure to comply with Judge Nakatani’s discovery cider. Indeed, the
State sceerte in ite response to the Chos’ application ~~ as it did before the
yea =~ tha
[she trial court] reconsidered [ite] own, and not another
judge's dlecovery sanction order. Une trial court) ‘«
dieer reconsidering (ite) initial [sanctions order] still
Gepese sanctions on the State for non-compliance with Judge
Nexateni'# order.
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findings about the State’s duty to inepect, maintain or
Eepair the cottage, or any bresch of that duty. (The trial
Court] die not decide whether the State had a duty to
[Sopece fer texie chenicale before (the Chos] soved in, or
Guring their tenancy. (The trial court] did not decide
ihether the state uae obligated to renove contanination if
Leas found, of sake repairs, [It] did not decide whether
the State bad a duty to inform (the Chos) of lead
Contamination discovered by Stephen Hong. (Ze) ald not
Gecide whether the State wae cbiigeted £9 respond to
[calvinj 's requests for vepairs, fo tend to ternites
Heplace diesciving ceiling tiles, or to patch the leaky,
Foot, (It) did not address the State's spoliation of
evidence, of [the Chos]' argunent that this destruction of
Evidence virtually guaranteed they would be unable to prove
contamination.
to
As argued on direct appeal, the Chos believed that, *[aJbeent a
finding of duty and breach, or ‘negligent conduct,’ there is no
way a trier of fact can determine causation." Also, the Chos
assert that the trial court erred in failing to address the
elenents of their breach of warranty claim.
on this point, the ICA seked and answered as follows:
Age the Choe right that without deciding the other saterial
Clenente cf the two causes of action, [the trial court) was
fot authorized to decide the issue of causation of damage?
The arever is no, Assuming all of the other material
Elenents of the two causes of action have been proven, one
Srinore of the Choe met also prove that the breach of duty
Gaured bim, her, oF them danage.
500 at 13. He agree with the ICA's above conclusion. The Choe
fail to present any authority requiring the trial court to also
expressly address the duty, breach of duty, and breach of the
warranty." Therefore, the Chos fail to satisfy their burden of
positively showing error committed by the ICA. Consequently, the
IA properly concluded as it did in connection with the chos
aforenentioned argument.
% we note that the trial court aié conclude that the chos “failed to
prove thet clsim{] of Breach of warranty of habseabiliey("
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In Light of the above conclusion -- namely, that the
trial court abused ite discretion in granting the State’s motion
for reconsideration, -- it would appear that the case should be
remanded to the trial court for a new trial. However, we cbserve
that the State spparently contended on direct appeal that,
irrespective of whether the trial court abused its discretion in
granting the motion for reconsideration, *{tJhere is ample
support in the credible evidence of the court's findings and
conclusions" regarding causation. As auch, the State asserted
that the appellate court “need not substitute its own
determination of credibility, weight, and causation.” In retort,
the Chos argued that they had “not asked thle appellate] court to
dot so, as the State so contended, and, in fact, they did “not
claim that insufficient evidence supported the trial court's
ruling, but rather, the court failed to render adequate findings
and conclusions," as discussed in section III.3. supra.
As previously discussed, the amended sanctions order is
vacated inasmuch as the trial court inappropriately granted the
motion for reconsideration. The initial sanctions order,
therefore, would be reinstated, resulting in the resolution of
the duty and breach of duty elements of negligence in favor of
ues narrow to causation and
the chos. Consequently, the é
Ganages. To this end, we believe that, based upon the evidence
adduced at trial, the Chos have failed, as a matter of law, to
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demonstrate that their injuries were caused by their alleged
exposure to mercury, lead, and arsenic during their ten-year
occupancy of the cottage.
We have stated:
Generally, @ court finding that 19 not challenged on app
ie binding open thie court. see Brener v, Wecks, 104
Hawal's 43, 63, 05 P-36 250, 270. (2004) (holding that
“Eindioge of fect that are not challenged on appeal are
binding on the appellate court"); a
Bug, ing, v. Laupthoehse Transp. Coq, 31 Bavalt 224,239,
562 P.20 653, ecb (1959) (holding that “findings of tact
that are unchallenged on appeal aze the operative facts of a
se"); Kavanata Ferme, Ine. v. United nari Prots., 66
Hawat't 214, 262, 960 Po2d 1085, 1093 (2997) (erating that
Sie'a ineing Se noe properly ateacked, iv is binding, and
any conclusion which fellows from it and fe a correct
Statenent of law is valid (quoting Wisdom v. Pflueser, 4
8 (2583) )7
Haw. App. 655, 459, 667 P24 €44,
Kelly v, 1250 Oceanside Partners, 111 Hawai'i 205, 227, 140 P.3d
985, 1007 (2006) (ellipsis and brackets omitted). Moreover, we
observed that:
cre de well-settled that an appellate court will not pass
pon Sesues dependent cpon the credibility of witnesses and
the weight of the evidence; this is the province of the
trier of fact." 93 awes'd 87, 102, 597
Pi2d'13, 27 (2000) (eltaticns and internal quotation ‘signals
onitted), (erackete in criginal); see also Lelay v. Leander,
$2 laval't ce, 626, 994 F.2d 546, 588 (2000) ("thie court
fae long chsevved that it ie within the province of the
trier of fact to weigh the evidence and to sscese the
credibility of witzesces, and this court will refrain from
Snterfering in these determinations.) (Citation onitted.).
Inre Dos, 95 Hawai'i 183, 190, 20 P.34 616, 623 (2001) (ellipsis
and brackets omitted). Bearing the aforementioned principles in
rind, we examine the facts of this case.
initially, we chserve that the Chos do not challenge --
either on application or on dixect appeal -- any of the Fors
entered by the trial court on April $, 2008. Specifically, the
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OE
relevant unchallenged FOFs, which are binding upon this court,
reveal the following:
Sf, vegieal records from aicer Permanente [(the
Kaiser reccrés)}, beginning in 1971, show that before [the
Choa] soved to the cottage ("pre-cottage"), Calvin...
Segeleriy sought treatment for numerous sincr ailments.
These include treateent for colds, fu, fal, contusion,
uccle strain, naval congestion, worm, ‘headache, dizzy
Spells itchy cye, sore throat, episode of gastroenteritis,
She pain, etonseh ache, palpitation, [and] episode of
Ssarthea.
‘BE, as carly ae the mid-19708, calvin .
Qiognosed with recurring allergies, itchiness, Yathe
Geratitie, athietel'le foot over hie body, hearing ct
Sow back pioblens, repeated episodes of headaches,
Alzziness, chest pain, gas, and stoach pain. He’ also ha
Geen Giaghosed with nigh Blood pressure.
‘De, he carly ae the wid-19708, he began to experience
back and leg pain due toa sunber of back injuries.
‘Dr. ds early ae the wid-19708, Calvin... had fears
of being poisoned.” in the ¥aieer records, the tay 5, 1976
Shey seated chat Calvin =. . reported that he suspected
Chee ecsecne had tried to’ poison him by contaminating hie
Eee, and therefore he wanted his tea tested for poison.
Ze. some two years later{,) the Decerter 20, 2978
entry stated that he was convinced that sone kind Of poison
wae affecting his eyes
55, she canary 26, 2979 entry stated (tbat Calvin}
wae convinced @ forner co“worker was trying to poison him,
So, Ae early se the mid-i9708, Calvin ; = . reported
a tong nietory of varital diteicultios with nie witel, Heel.
fn the aieer records, the June 13, 3977 entry stated that
he bed fighte with hie wife about her lying to him and
Rising seyenecks. He eaid that ais wife's fanily was crazy.
« . fled & workers!
coupencation cisim afieing from his Concerns that he had
Ecen expoced to asbestoe in the work place. He was scen by
Cecupational medical expert John Endicott, M.D. at Straub
Giiskee heepital sho detected no asbectos related disease.
32. Br. Endicott again saw (Calvin) on May 16, 2990,
regarding (hia) concerne of chenical poisoning at work due
terthe cee of organcphoephate pesticides. There were no
physieal signe, and the leberatery tests were normal. Dr.
Endicott conelaged the symptoms were purely peychosocatic,
after [calvin] reported feeling better becaute of his
TMeteken belief the phlebotonist had injected medication
When drawing [his] blood.
33, an Decenber 2990[,] Calvin. . . began seeing
aniergist Dr. [George] Ewing for chemical Sensitivity to
Srsenophcephate rateriale at work. In the doctor's Decenber
SUP i950 report(,] he concluded that (Calvin] vas "generally
2d exceedingly healthy despite a myriad of complaints,
Br. wing referred (Calvin) for evaluations regarding those
wae
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
complaints, cone of which comprise his allesed injurik
thie action.
54. in considering Calvin{'e) complaints of munbzese,
tingling end pain in his lege, (a]eurologiee Uanes Pierce,
M.D. Giagncsed (Calvin} with 2 aild neuropathy, the most
Coenen causes of which were diabetes and alcohol
Consumption. Dr. Pierce thought the condition was stable
@ should not progress. AE trial[, Calvin] denied heavy
Grinking sod in 1991 bed told Br. Bving [that] he was
compliant with his orders to stop snd at the cane tine told
Br. Pierce he had drank no nore than 2 beers and not every
Gay. Earlier sedical records contain a history of daily
Grinking for more than 20 years.
438. Urologist Cary Lattscer, M.D. addressed
calvini’a} conpiainte of decreseed 1Sbido and erectile
Syetuncelon. At erial{,) Br. Lateiner testified that the
Laboratory results were within
age and that he had no opinion of {calvin}
Complainte. He hed earlier (1999) declined to give any
Fsting for vorkere’ conpensation purpetes. At that timel,]
the reported inpotence, for which’ [calvin] declined to
undergo cbiective testing, and the alld neurcpathy were
Eeing explored in connection with [calvin] "# workers”
conpensation claim for exposure to pesticides. Indeed, Dr.
(Richard) Lau'e reports record (Calvin's) hisiory of
erectile dysfunction dating back to [his] 1578 back
Injury (,) which (Calvin) at trial eaid wae inaccurately
reported history.
436. On Sanuary 31, 2991, Dr. Eving referred
calvin: . back to DE, Endicott, in hie February 20, 1992
entry, dr! indicoce indicated that the laboratory tests he
Srdered shoved *borderline abnertal nercury level in the
Blood of 47 ug/L," but that lead and arsenic had not heen
Getected. De Endicott further noted that Calvin... do
Sfngest ceafood on a regular basis" and concluded that ‘the
Likely source of the nercury was contaminated sesfocd,
although other sources vere possible. Other sources
foggected to (Calvin) at trial sncloded his teeth because he
hada Jot of silver analgam dental work.
37. “Dr. Ewing then referred Calvin . . . to physical
redical and rehabilitation epecialiet Cary Ckancto, M.D.
Dr. Okaccto reiterated Dr. Plerce's early diegnesle of
peripheral neuropathy in the lege, and possibly in the are,
io a result of repeated expeaure to organcphcephate
chenicale at work:
438, Tn connection with calvin{’s} workers’
conpensation for chenical exposure, he vas evaluated by
neurologist John Henrickson, .D. tn his June 4, 1987
Yeport, Dr. Hendrickson concluded that the peripheral
neuropathy vas not the result of exposure to orsancphosphate
Chenieaia, Bue instead vas possibly due to mercury
poisoning!
33. to the allegation made in this case that
the cottage wae the cource of lead, areenic and sercury
poisoning, shen Calvin... . vas avay from work because of
the alleged work injuries, ind therefore necesearily
spending nore tine at hong, according to Dre. Bving and
Okamoto, Calvin('a) condition wae actually improving
232
*** FOR PUBLICATION ***
‘West's Hawai'i Reports and the Pacific Reporter
eS
40, tn connection with the workers’ compensation
clain for chenieal seneitivicy, calvin. . » was evaluated
Sy allergist stuart fuerak, McD. In hig Novenber 8, 1992
Peper, Br, Rusnak concluded that the peripheral *neuritiet
was related to Calvin('s] chronic alechol consumption and
YSngrter treateent by Rulvicin for hie achletel’le foot,
Pather than related £0 any sensitivity to chenicals in the
Work place, furnak testified at trial to the cane effect.
The (Cleurt finds thie testinony creaible and persuasive.
42. Dr, Swing nevertheless maintained in Decesber|
ge that Celvinl'el condition was a result of the work
piece, in the end[,] the State denied [Calvin]’s workers’
Ponpeneation claim, and he becane embittered by that
Litigation.
42, By Avguet 2992[,) Dr. Ewing Getersined [that
catvin) had sufficiently recovered from the toxic effects of
Chenical exposure to revurn to full tine work after one and
a'half years. The first day he returned Co school,
oe2, [Calvin] sought energency treathent for
Sfurning eyee(,] shortness of breath and bilateral chest
pain due to alleged exposure to toxic funes from » broken
EStele containing chemicals, The next day, Dr. Lau found
bimnersal st @ follow-up vieit and (Calvin) filed» new
workers’ conpeneation claim.
Recasse of the incident at work, Dr. Bving had a
Gietogue with [the] school séninietrator in 1992 and. 2993
Shout what Calvin , ... could and could not de at work.
Tee Gp Aoguee 20, 2994, ‘Calvin... sustained a back
injury at vork. DF. bau treated (Calvin) for that injury
ana. in May 1999 opized [that Calvin] could not return to
Stork. [calvin] took diesbility retizenent in connection
NEEh ene Back injury when dnformed the state would otherwise
Yoetinate him effectively July 30, 1599. In a post
Fetirenent entry ordering a dlagncatic WI for back pain,
Dr. Lau notes of [Calvin]: “Unfortunately rany of the
Findings are subjective and gifficult to
guestify.
42) at trfal{,] there vere objective evidence of
blood and cther testing for heavy metals in (Calvin). On
Sancary 18, 1952, [calvin)’e biced test results detected no
Jead and nd arsenic.
ae. while he Lived in the cottage, Calvin... had
fal blood tanpies tested for mercury. The levels
Setectea in his syetem fluctuated. =
Moreover, in connection with one of his workers’ compensation
claims for chemical sensitivity, FOF No. 15 provided that Calvin
was evaluated by Dr. Arora, who
233+
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
concluded that calvin('s] eymptone were the result of
Rereury Poisoning. He suggested that the source of the
Rercury vee in the hone environment, protably due to
Caivin{‘e] self-medication with Astan folk renedie
fae to Me diet. (1
2 veld
With respect to the Chos’ conditions post-cottage period, the
unchallenged FOFs revealed at follows
47. br, Eying, in hie Septesber 20, 1896 letter to
br. Uns, ‘noted that Hee(’s) mercury levels vere normal and
that be’ vee snot convinced, personally, that either of these
Feoplel, ica, Calvin nd fee, have any significant
Eyikenes hat’ ve could relate to mercury or lead even though
[Calvin] ie ineietent that this way be the problem,"
‘calvin... - also ineleted that his famiay
nesbers be trested for heavy setal poiecning, and they
Undervent a course of chelation therapy norsally reserved
for acste toxic exposure. At trial.) expert testimony)
proved the trestnent wee unnecessary and inadvicable because
Be the attendant potential side effects of the bonding
Sgente used.
‘co. in connection with the chemical exposure claim,
in hie dune 8, 1957 report, occupational medicine specialist
Leonard cupo, M.D. concluded that Calvin{'s) syeptoms
pot indicative of lead or mereury poisoning. He reitereted
that Calvin... never had elevated lead levels. He
further concluded that the fluctuating elevated mercury
levels were due to diet.
‘sd, DE. Cupo followed that report with another dated
ceptenter 26, 2597, in which he sursarized the records he
Fevieved, and reiterated his opinions regarding lead and
hercury. He also addressed the issue of arsenic. ie
Concloced again that the most 1ikely source of che slightly
elevated arsenic level wae diet.
% specifically, Dr. Arora indicated that test results denonstrated
that the level of lead in Calvin’ Blood was “normal at 1.9 micrograns per
Seciaitert and that hie mercury level "vas
micrograne per liter, the norral being les
Dr. Arora stated that,
beyond reasonable doubt, [Calvin] has been expeced
Tnternittently to sereury in hie hone environment...
The source of nercury exposure at hone could be food,
Certain hobbies (for example, antique cleaning and polishing
with netallie nereury), hose renedies, old antique furniture
Treated wlth mercury-containing fungicides.)
fora concluded that “the question of nercury exposure (in the
‘pot even resotely arise. There 1s no cleaning chemical #
‘Sieg by [Calvin] were non-nercury
workplace) do
Containe nereury and the insecticdee
conpeusds
<34-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
see
52. After the fanily lefe the cottage, [the chos] had
their blcod, hair and urine samples tested for lead, arcente
Sha sercury{, which teste shoved fluctuating, and even
Gnevessing levels of these metala years after the Cho moved
out of the cottage.)
s2:, [dhe Choa) retained expert toxicologiet névard
Massaro, N.D., sho concluded that the family vas subjected
fo iong-term iow level cottage exposure of lead, arsenic and
Sezcury that they ingested, inhaled and absorbed by skin
Contact. ie also concluded that ali fanily cenbers have
Sarlous medical conditions sone of which nanifest
[Eeitabélity sna peychological or mental deficits as a
result of the exponure.
3. fal aro and witnes
she suaal taste co creda cea ele eT ores
ae ee enc credible
SEE the 7 aie ont a
sestion, snd Skin. fermi cont
=
of ios] were expos
syst opel ba
caused by cottace exaceure, Dr. Cuno credibly testified to
Sfetitee ctiect. the scientific Basse inclodeL1 inter
2 ale fe Beas
asap nae bleed ng ge the as teee Seaieny sacord
Bee “the [chos]’ nedical records (beginning with
kaiser in 1571 for all except the teins which begin at their
{Ster'birch) are voluminous and include many referrals
Gdthin Kaiser, within the workers’ compensation system,
Uddin the no-fault autosobile insurance syste and others
Ghesen by [the ches) for forensic purposes in connection
Goh thie 1itigaeion, 1
the eek of complaints feo ied
Seni beat ioe.
isoncses thal Te-evistine =edica zee 2
ae ee ane Sedicsl a of 2
Egpordel. bealnning fi atsig myriad com
heaithefpeluging daraeed ied
Shes. -At-trial il sh the ore=cotta
iftieation ciate dsb ie 7
Spliten docantation roviders than eh
-38-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Hee’ s]_testineny(-1
paren”, recarding besdad
es chey existed at al
0.155 motor vehicle sccisent , discussed intra)
56. Calvin... unsuccessfully liticsted vorke
sompensation claims retarding asbestos and chemical
Sensitivity and oulded Me dauchters to exdoaerste anv 298;
FZ F fa] eating
‘ghelation treatnent and mandated hia children underag
£ 2 west
of fone bees
elective recorda he provided in hones of recovering noney
Sscsere in this. = ent
secondary cain cotivation, and hia teatinony recerding
Fe oe = ible by the
(Emphases added.) Moreover, as aptly and correctly summarized by
the State in its ancwering brief, the medical records of the Cho
children revealed the following:
The [Kaiser] records shoved that David... had a
nietory of palpitations, and frequent visite for
psychosonatie symptoms.” His pre-cottage school records
Indicated below average aptitude and poor grades. He
aropped out of high school, and did not graduate.
Tennyl'e) Heiser recorde ... is only interesting for
its Decenber 1, 1972 entryl,] which stated that his father
yeported that he felt his con was “slow,” and for ite
February 23, 1974 entry(,] which documented a bead injury
and post-infury headaches. His pre-cottage school records
Snatested below average to average eptitude in vocabulary,
Yeading, spelling, language, and below average to above™
average aptitude in math. Mie grades were average to above
average at best-
Faren . . . experienced a variety of minor ailzente
ranging from itchy ever, colde, coughe, bronchitia, fever,
stersch aches, vomiting, oral sores, réshes, and pinworas-
The nest noticeable entty in the Kaiser reccrde vas on
August 23, 1963() that indicated [Chat che) was undervesght
ted had nind seotioeie, “ner school records clearly
indicated that her pre-cottage aptitude for vocabulary vas
the lowest, reading xas below average, and sone of her
lath aptitude levels were also below average. ‘The records
60 showed that sone [of her] wath levels were low average
And spelling wae low average
Like Ber twin, Skaron{'s) records indicated a variety
of aitvente, abéomial pain, poor eating habite, as vell as
parental veforts of her odd behavior. Also 1ike her twin,
Staron{*s] school records clearly indicated that pre-cottige
aptitude for reading vocabulary, and language were below
average, and that spelling and cath aptitude were at most
average:
-36-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
os
2, During cottage
Zhe recorde vere devo!d of any complaints compatible
with lead, arsenic or mercury poisoning by the chilren
Goring the pericd that the (ches) lived in the cottage. In
fact, Tenty s - + Gid not seek nedical care for any reason
Until hie father directed him to see Dr. Tau.
Galy the evine[,] Karen and sharoal,] . . - complained
of heataches and less’ of menory Beginning’ in Decenber’ 1553.
However, contrary to their later claine that the sysptoms
here the result of exposure to the lead, arcenic and
mercury, netale (eiel, their om medical records showed that
These Complaints, if eal, were the result of a Decenber 6,
{5s3 cctor vehicle accident in which the twine clained that
they eustaized head injuries and for which they sought
Extensive nedical care even after they noved from the
ESteages[¥] At trial, although in support of their claim
thet Caused their illnesses, they would “recall”
instia about the condition of the cottsge, they would feign
[allure to recall their extensive treatnent for what they
Glained at the tine were serious head injuries
3. Fost-cottage
Bividi'e) nedieal records show a eixteen year gap in
health care from April 2, 1981, snd March €, 1997, shen he
Wee seen by Dr. Lav at hie father's ineistesce. At the
tine!“Sivid . | . dented any history of Headaches, nausea or
stomach probiens.
Urblegist Dr. Lattimer examined and tested David...
at his father's insiatence, and fear of fertility problens.
Teeulte were normal.)
However, the leboratory ©
ithe hie brother, Tenny . . . did not seek health care
for ten years until after the laveiie vas filed. The Chos
Argued that urologiat Dr. Joseph Mezvoy concluded that Tenny
stShad fertility protiens. However, there is no evidence
{nat’pr. Mevoy wa able to give an opinion to a ressonsble
Gegree of medical probability that exporure to lead, arsenic
Gnd sercury wae the cause, snd admitted that there were a
Humber of other possible Causes.
ie their father’s insistence, . . . Karen and
sharon’... subaiteed to evaluation by gynecologist Dr.
keneth Vi,” Karen's «. gave a history having beadaches,
but did sot disclose chat they had begun only after the i993
Roter vehicle accident. Dr. vu concluded that the headaches
Mere not abnormal and tended to be around the tine of
Uenses, Sesed on the reaules of laboratory teste he
Gréered, he concluded that her hornene levels were normal
for her age group.
ae trial, Haren related that she and her sister, sharon, were
involved Ip a actor vehicle accident in 19931 “My slater was driving,
in the paseenger eest, anda Jeep —- it was a hit-and-run accident, and
Beep fata the scene." then asked shether Karen recalled having headaches
tbe Secigene, she replied that °2 still renesber having headaches.”
Jiovever, Keren indicated that she also had headaches before the accident.
F
-37-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
More significant vere Dr. Vu'g observations of the
father-daughter relaticnshipll and interaction.
+ Sexanéed to be present during Dr. Yu's
and rather than allow his csughtere to provide
2 history, he insisted on doing so. ‘Tike her
sister, Sharon{'e] fertility test results vere algo sorsal.
Based upon the foregoing FOFs, the trial court ruled in
favor of the State, finding that:
58. There ie no credible evidence of [the Choe]
toxie experure te arsenic, lead or sercury from (the
State) 'e cottage.
60," There is no credible evidence of any physical or
Feychelogical injury to any of the (Chos) as a result of
Sreenic, lead or nercury from the State] 'e cottage
Gi, “There Je no creaible evigence of economic injury
to any of the (ches) as a result of arsenic, lead or mercury
from {the State) 's cottage.
Irrespective of the trial court's erroneous decision to
reconsider the initial sanctions order, we agree with the trial
court's above findings inasmuch as (1) the chos fail to challenge
any of the FOFs and (2) we refrain from interfering in the trial
court’s determinations of credibility of the witnesses and the
weight of the evidence. Indeed, aa the State argued on appeal:
[t)he taboratory ¢ from Calvin che
Guring the tine the chos lived in the cottage shoved
negative findings of leed and arsenic, and fluctuating
Tercury levele shich Dre. Endicott, cupo, and Tardice
Concluded vere due to diet undercute the Choe’ argunent
regarding causation.
Dr. Bving's adniesion that (,] when Calvin cho w
pursuing his workers’ compensation claina for "chemical
Sensitivity," and staying at hone in the cottage, instesd of
Getting sore 111 he wae actually getting better aleo
Gndercuts causation. ‘The lack of any evidence recorded
Guring the period the family lived in the cottage of
Siisenee, illnesses snd symptone suffered by hie wife and
Children that can be attributed to the vetale further
Gndercute csusation:
+c (fhe test results of canples taken from all of
the chés after they had noved from the cottage which shoved
that the metsie were either not detected, or that the levele
Were fluctuating, and sometimes even increasing the longer
they hea been ceay from the cottage alee proves a source of
other than the cottage.
-38-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
‘The shove alone was encugh to support the [eréal]
court's findings snd conclusions, but there was such nore.
She [trial] court chose either to dieregara the vestinony of
the ches’ expert texicslogist Dr. Mascaro, oF at least €©
give nore weight to the testinony of cccupaticnal and
Snvirorsental medicine specialist Dr. Cupo, and the stat
i ‘There is ample cupport for the
Accordingly, we believe the Choa failed to meet their burden with
respect to the causation elenent of negligence. Consequently, we
hold that the ICA, ultimately, was correct in affirming the trial
court's conclusion and judgnent in favor of the state.
IV. CONCLUSION
Based on the foregoing, we affirm the ICA's May 8, 2007
judgment on appeal.
Peter Van Nam Beser and Go
hack’ s. Ravata, for .
petitioners/plaintiffs-
Eppeliante, on the Alam Panator~
application eantee Caden aren
Robin M. Kishi and
Caron M. Inagaki, JOP Co
Deputy Attorneys General,
for respondent /defendant-
appellee, in respon
-39-
|
df761657-3481-4393-8141-cb68d451546f | State v. Owens | hawaii | Hawaii Supreme Court | No. 27714
Vian
01 on tone
E
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
rh
coliviaty Ha
STATE OF HAWAI'I, Respondent /Plaintif¢-Appelleé §|
ze
CHARLIE OWENS, JR., Petitioner/Defendant-Appellant
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(FC-CR. NO. 0171-1281)
(By: Acoba, J., for the court")
‘The application for writ of certiorari filed on
July 12, 2007 by Petitioner/Defendant-Appellant Charlie Owens,
Je. is accepted and will be scheduled for oral argument. The
parties will be notified by the appellate clerk regarding
scheduling.
DATED: Honolulu, Hawai'i, August 10, 2007.
FOR THE COURT:
SHMEON R. ACOBA, JR.
Associate Justice
Nathan Kenale Sadowski, Deputy
Public Defender, on the
application for petiticner/
defendant-appellant.
| Levinson, Nekeyans, Aecbs
Duffy, 32.
osu
|
1ca30a00-0b5e-4d31-a58a-f3e854c8f064 | State v. Fetelee | hawaii | Hawaii Supreme Court | AW LIBRARY
No. 27482
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
aaws
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-1374)
DESIGNATING CASE FOR 0} ‘AND ORDER
(py: Moon, C.J., for the court!)
Petitioner/defendant-appellant Faa P. Fetelee’s application
for writ of certiorari, filed July 17, 2007, is accepted and will
be scheduled for oral argument. The parties will be notified by
the appellate clerk regarding scheduling.
XT IS FURTHER ORDERED that the parties shall, within 21 days
from the date of this order, file a supplemental brief addressing
the following issues:
(2) Weether the res gestae doctrine maintains any
viability in the wake of the Hawai'i Rules of
Evidence (HRE); and
@
if so, whether res gestae evidence is subject ¢
the ERE Rule 403 balancing test
Woon, ¢.J-, Levineon, Nakayama, Acoba, and Duffy, 23
‘The supplemental briefs shall not exceed 15 pages, exclusive of
title page(s), indexes, appendices, and certificate of service,
DATED: Honcliiu, Hawai'i, August 29, 2007
Taryn R, Tomasa, FOR THE COURT:
Deputy Public Defender,
for petitioner/defendant-
appellant, on the
application ff Justiog
z
ey
3
|
3689f4bc-2268-4f22-bce7-a5989984a47f | State v. Matavale | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27476
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
MSE Kd ty aay
STATE OF HAWAT'L, Respondent /Plaintif£-appellee
Cross-Appellant,
oss
IUBVA MATAVALE, Petitioner/Defendant-Appellarit/
cross-Appellee. 3
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR. NO. 05-1-1337)
(By Moon, C.J., for the court)
It appearing that the attorney credits at the end of
the opinion of the court, filed August 14, 2007, is inaccurate,
XT IS HEREBY ORDERED that the attorney credits at the
end of the opinion is corrected as follows.
James Tabe (katie L.
Lambert and Deborah 1.
Kim, on the briefs),
Deputy Public Defenders,
for petitioner-appel lant
Stephen K, Tsushima (also
on the brief), Deputy
Prosecuting Attorney,
‘Acoba, J., concurred
* court: Moon, ¢.3., and Levinson, J;
separately: Nakayama, J., dissented, vith vhom Duffy, Ju, Joined
The Clerk of the Court is directed to make the
aforementioned correction to the original opinion and take all
necessary steps to notify the publishing agencies of the
correction.
DATED: Honolulu, Hawai'i, September 24, 2007
FOR THE COURT
No. 27476 State v, Matavale: Order of Correction
|
2daeb2c5-9d2b-43a4-b75f-89c68d2813f6 | Hamaoka v. Hyatt Corporation | hawaii | Hawaii Supreme Court | LAW LIBRARY
NO. 28329
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
LESLIE L. HAMAOKA, Petitioner-Plaintiff-Appellant,
ny wag
HYATT CORPORATION, a foreign corporation doing business
under the trade name HYATT REGENCY WAIKIKI RESORT,
SILL FISHER, BONNIE KIYABU, and CARLA THOMAS),
aziz
ae
aay
Respondent s-Defendants-Appellees
and
e
WY 2.
oF DOES 1-5 and JANE DORS 1-5, Defendants
APPEAL PROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIV. NO. 04-1-0390)
(By: Woon, C.J. for the court)
Petitioner-plaintiff-appellant Leslie L. Hamaoka’s
of certiorari filed on June 20, 2007 is
application for wr:
hereby rejected.
DATED: Honolulu, Hawai'i, August 2, 2007.
FOR THE COURT:
and
rea by: Moon, C.J., Levinson, Nekeyene, Ac
|
5cbcc162-e132-4824-9673-b424bca2f2cb | Siquig v. Dellew Corporation | hawaii | Hawaii Supreme Court | {++ NOT _FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
No. 26734
IN THE SUPREME COURT OF THE STATE OF HAWAT“By
SIMPLICIO B. SIQUIG, Plaintiff-Appellent,.
aaa
DELLEW CORPORATION, Defendant Appellee,
OnsHHY LZ SHY L002
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE
PARTNERSHIPS 1-10, Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(cIv. No. 03-21-0407)
SUMMARY DISPOSITION ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 9.)
Plaintiff-Appellant Simplicio B. Siquig ("Siquig”)
appeals from the judgment of the Circuit Court of the First
Circuit (“circuit court”)? filed July 9, 2004 in favor of
Defendant-Appellee Dellew Corp. ("Dellew”). The circuit court
granted summary judgment for Dellew on all claims, which
consisted of Siquig’s age discrimination claim and intentional
infliction of emotional distress ("ITED") claim.
On appeal, Siguig argues that the circuit court erred
by (1) applying an incorrect burden of proof for establishing his
prima facie case for his age discrimination claim brought under
Hawai'i Revised Statutes ("HRS") $§ 378-1 (Supp. 2002)
(definitions statute) and 378-2 (Supp. 1999);? (2) granting
‘he Honorable Sabrina &. Mexenna presided,
1 HRS $8 378-2 provides in pertinent part:
Te shall be an unlawful discriminatory practic
1 $0, Sexual orientation, age,
(eontinued.
++ NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
summary judgnent for Dellew on his age discrimination claim
because he had adduced evidence of pretextual reasons for his
termination; and (3) granting summary Judgnent for Dellew on his
pendant IZED claim inasmuch as summary judgment on his primary
(age discrimination) claim w.
inappropriate.
With respect to Siguig’s second argument (as to the age
discrimination claim), Siquig essentially argues that (1) Siquig
was terminated on the basis of prior warnings that were either
never given or could not have been given under the circumstances;
(2) Siquig was not on notice by Dellew that issuance of a
lawnmower (bearing black tape) to @ store patron violated any
work policy; (3) in any event, Dellew changed its rationale for
terminating Siguig (citing reasons other than the lawnmower
issuance) after Siguig filed his complaint; (4) Dellew vice
President Drucilla Lewis could not have terminated Siquig,
because Timoteo was the true terminating party; (5) certain
evidence by Dellew should have been excluded as “unauthenticated,
inadmissible hearsay”; (6) Markle, @ supervisor, sabotaged Siquig
by intercepting his unfinished post-working shift paperwork
instead of leaving it for the next shift’s workers to complete;
and (7) Markle and Timoteo, in a time period from December 2001
*(s,continuea)
Feligion, color, ancestry, disability, marital statue
of arrest and court record:
(A) For any enployer to refuse to hire or employ or
to bar or discharge fron enployzent, or otherwise to
Giecriminate against any Ineiviauel in compensation oF
in the terms, conditions, oF privileges of employment
fee also shoppe v, sa, Inc,, 94 Hawai'i, 368, 378-83, 14 P.34 1049,
shenpe v.Gucct bmerics, Inc.,
1058-60 (2000); Hac vw. Univ. Of Hawai, 102 Hawai'i 32, 103, 73 P.3¢ 46, 55
(2003)
2
(OT _FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
until mid-July 2002, made, inter alia, seven and two remarks
about Siquig’s age, respectively.
pon 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 as follows:
(2) We first observe that Siquig’s points of error
violate Hawai'i Rules of Appellate Procedure (“HRAP”) Rule
28(b) (4) (44) and (444) (2004) due to Siquig’s failure to point
out “where in the record the alleged error occurred” and “where
in the record the alleged error was objected to or the manner in
which the alleged error was brought to the attention of the court
or agency.” As such, all of Siguig’s points of error may
properly be disregarded by this court. See e.a., HRAP Rule
26(b) (4). However, because of this court’s longstanding policy
of “affording litigants the opportunity to have their cases heard
on the merits, where possible[,]” we accordingly address the
merits of this appeal. See e.g., Moraan v. Planning Dep't,
County of Kevai, 104 Hewai'i 173, 180-81, 86 P.3d 982, 989-90
(2004) (citation omitted) (internal quotation marks omitted) .
(2) As to Siquig’s first main argument, that the
circuit court should not have applied a preponderance of the
evidence burden of proof to an age discrimination claim in
establishing his prima facie c:
that both this court's caselaw and the United States Supreme
for age discrimination, we note
Court expressly apply the preponderance of the evidence standard
in this situation. See Shoppe v. Gucci America, inc., 94 Hawai'i
368, 378, 14 P.3d 1059, 1069 (2000); Tex. Dep't of Cnty, Affairs
Ww. Burdine, 450 U.S. 248, 252-53 (1981). Therefore, this
argument is without merit.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER +
(3) As to Siquig's second main argument (ie.,
Siguig’s seven subarguments comprising it), we hold as follows:
(a) Even assuming arquende that Siquig's assertions
that (1) his employee warning notice dated June 27, 2002
contained time discrepancies ané (2) a prior, purported May 18,
2002 oral warning from Dellew employee Markle was never given are
correct, the necessity of prior warnings in order to terminate
Dellew employees is irrelevant to the question of whether Siquig
suffered age discrimination. Per the plain language of Dellew’s
work policies, which Siquig received, employees engaging in
“{u}nsatisfactory or careless work,” “mistakes due to
carelessness,” or “failure to innediately report damage to. . .
company equipment” may be subject to “possible innediate
Gismissal.” Upon careful review, we hold that Siquig fails to
raise a genuine issue of material fact against the evidence in
the record that he had engaged in such proscribed conduct. Thus,
Siquig's first subargunent fails
(b) Siquig argues that one of Dellew’s rationales for
terminating him, relating to his issuance of @ Lawnmower to a
store customer, was pretextual because the item was in working
condition, the customer did not complain, and no Dellew policy
was violated in the transaction. However, Siquig, in his
deposition testimony below, admitted that something was “wrong”
with the lawnmower at the time he issued it, but that it was
“still repairable.” (Emphasis added.) As noted supra, Dellew’s
work policies specifically proscribed “failure to immediately
report damage to . . . company equipment” under express penalty
of “possible immediate dismissal.” Thus, even when viewing the
evidence in a light most favorable to Siguig, we hold that Siquig
‘+++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
has not a raised a genuine issue of material fact as to whether
Dellew’'s reasons for terminating him were pretextual in this
respect. See Shoppe, 94 Hawai'i at 379, 14 P.3d at 106
o dic Assocs, of Hawai’ ye Hawai:
Ltd, 109 Hawai'i 185, 194, 124 P.34 930, 939 (2005). Thus, his
second subargument is without merit.
(c) Siguig argues, in the alternative, that Dellew
terminated Siguig based on pretext due to its advancement of six
new rationales for terminating him after the filing of his
complaint, all of which were inconsistent with Dellew’s pre-
Litigation reasons for terminating him. However, we observe that
five of these rationales are disputed by Siquig for the first
time on appeal. See Kemp v, State of Hawat't child Support
Enforcement Agency, 111 Hawai'i 367, 391, 141 P.3d 1024, 1038
(2006). Thus, of the eix challenged reasons advanced by Dellew
post-litigation as to why Siguig was terminated, only one -- that
Siguig “failed to input or properly enter data into [Dellew’s]
computerized inventory system” -- may be considered by this
court. In the June 27, 2002 warning note issued to Siquig, this
purportedly new, post-litigation reason for terminating him is
directly mentioned (and is also referenced in Siquig’s July 12,
2002 termination notice). Thus, Siguig’s third subargument is
without merit.
(d) As to the Siguig’s argument that Lewis was not the
decisionnaker in his termination, Dellew adduced evidence during
summary judgment proceedings that Lewis, its Vice President, was
the sole decisicnnaker in terminating Siquig. At orel argunent,
Siguig, in response to the circuit court's questioning, expressly
adnitted having no evidence to refute Dellew’s evidence. Thus,
+++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
assuming arauende that the question of who terminated Siquig is
relevant to this api
1, Siquig’s fourth subargument must
nonetheless fail because he did not set forth “specific facts” to
counter Dellew’s submitted evidence. Hawai'i Rules of Civil
Procedure ("HRC") Rule 56(e) (2000); see also Lee v. Puamana
sty. Ass'n, 109 Hawai'i 561, 567, 128 P.3d 874, 880 (2006)
(quoting French v. Hawal's Pizza Hut, Inc., 105 Hewai"i 462, 99
P.3d 1046 (2004)).
(e) Siguig aroues that certain exhibits appended to
Dellew’s motion for partial summary judgment as to the age
discrimination issue constituted “unauthenticated, inadmissible
hearsay” which should not have been considered by the circuit
court. However, this argument is not supported by a predicate
point of error preserving the evidentiary objection. We
therefore hold that Siquig’s fifth subargunent is waived. See
HRAP Rule 28(b) (4).
(£) Siquig argues that Markle would create paperwork
discrepancies for Siquig’s employment file by collecting his
unfinished paperwork at the end of his shift and making notations
on it, in alleged violation of the employee policy to simply
leave the paperwork for the next shift’s employees to complete.
However, the deposition transcript excerpt cited by Siguig as
support denotes only one incident involving one document. Thus,
Siguig’s apparent generalization that Markle sabotaged him by
continually intercepting his incomplete paperwork before the next
shift’s workers could address it is flawed. Further, even when
viewing the evidence of this single incident in the light most
favorable to Siquig, there remains, inter alia, express findings
from the State of Hawai'i Department of Labor and Industrial
{OT _FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER
Relations’ Employment Security Appeals Referees’ Office (made
pursuant to an unemployment benefits appeals proceeding involving
Dellew and Siquig)? that Siquig “made too many errors in
recording the equipment loan transactions [from Dellew to its
customers].” As such, we hold that Siquig could not meet his
burden of persuasion to prove that Dellew’s reasons for
terminating him were “unworthy of credence” in this regard,‘ and
accordingly held that his sixth subargument is without merit.
(9) Finally, Sigquig asserts that “age based animus”
existed as evidenced by, inter alia, nine conments made to him
about his age (seven by Markle, two by Timoteo) from “about,
December 2001 until his termination on July 12, 2002[.]” Siquig
argues that Markle’s and Timoteo’s age-related statements
denonsteated that the reasons given by (Dellew) for treating
[siquig) aifferent than younger employees was [sic] his age ~
Sixty seven (67). [Dellew's] explanations for its actions
Jnscticns [sic] were false and inconsistent and not to be
believed, They were instead pretext for age discrimination, there
Ss no cther reasonable explenaticn.
However, these conclusory assertions do not demonstrate any nexus
between Markle’s and Timoteo’s alleged taunting and any
illegitimacy of Dellew’s stated reasons for terminating him
(dues, pretext).? Thus, Siquig’s seventh subargunent is without
merit.
(4) Upon careful review of the record, we hold that
Siquig's remaining arguments as to his age discrimination claim
> Siquig prevailed in this proceeding.
«see Sheope, 94 Hawes's st 379, 14 P.3d at 1060 (quoting Eurdine,
450 0,8. at 258) internal quotation marks omitted) -
+ siguig's allegations of Markle’s and Tincteo' s coments about his
lage would oppear in the abstract to be eppropriately directed to a claim of
age Giscrisinetion due to a hostile work environment. However, Siquig’s
Counsel specifically disavowed any hostile work environment claim during oral
argument on Dellew's motions for partial summary judgment.
7
+#** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
are waived because they are raised for the first time on appeal.
See Kemp, supra. Accordingly, we hold that the circuit court
properly granted partial summary judgment in favor of Dellew as
to Siquig’s age discrimination claim.
(5) Because (a) Siquig has expressly noted that his
IIED claim is pendant with his age discrimination claim, (b)
Siguig does not advance independent argument as to why the
cireuit court’s grant of partial summary judgment in favor of
Dellew as to his ITED claim is inappropriate, and (c) we hold
that the circuit court properly granted partial summary judgment
in favor of Dellew as to Siquig's age discrimination claim, we
therefore hold that the circuit court properly granted partial
summary judgment in favor of Dellew as to his ITED claim.
IT IS HEREBY ORDERED that the July 9, 2004 judgment of
the circuit court is affirmed.
DATED: Honolulu, Hawai'i, August 27, 2007.
on the briefs:
Venetia K. Carpenter-Asui
for Plaintif£-Appellant
Simplicio B. Siguig .
Corianne M. Lau, and Me Ornsn
Peter Knapman, (of Alston
Hunt Floyd « Ing) for C
Defendant-Appelice Braet Oster orrenr
Dellew Corp.
Goon t, Dull
|
f208ad8c-dcd7-4850-aa8f-237b0e1d633d | Sinkin v. Department of the Attorney General | hawaii | Hawaii Supreme Court | No. 28862
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
LANNY SINKIN, Petitioner, 8
DEPARTMENT OF THE ATTORNEY GENERAL, Respondent. 1,
————
ORIGINAL PROCEEDING
OS :2 Hy
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of petitioner Lanny Sinkin's
petition for an order to show cause and the papers in support, it
appears that the order to show cause sought by petitioner is not
Issuable by the supreme court pursuant to HRS $§ 602-5 (a) (3)
(Supp. 2006) and 710-1077 (1993) inasmuch HRS § 710-1077 does not
confer the supreme court with original jurisdiction to issue an
order to appear before the suprene court.
It further appears that the order to show cause sought
by petitioner is not issuable by the supreme court pursuant to
HRS $6 602-5(a) (5) oF (6) (Supp. 2006) inasmuch as the suprene
jurisdiction in Sierra Club v, Department of
‘Transportation (No. 27407) terminated on October 3, 2007 upon
court’
1 and no other case concerning the
entry of the Judgment on App
Hawaii Superferry is pending before the supreme court. HRS §
602-5(a) (Supp. 2006) does not otherwise confer the supreme court
with jurisdiction and power to issue the order to show cause
sought by petitioner. Therefore,
IT IS HEREBY ORDERED that the petition for an order to
show cause is dismissed.
DATED: Honolulu, Hawai'i, December 7, 2007.
ore
Maiormi~
Peaute CSneecyeirn
mS
Genre. Dugtys thy
|
ac733e7d-e43e-464a-871b-88118b195d9c | Sheehan v. Grove Farm Company, Inc. | hawaii | Hawaii Supreme Court |
a, 3
ze 8
NO. 25811 332 =
IN THE SUPREME COURT OF THE STATE OF HAWAI'T Big
MICHAEL G. SHEEHAN, SR., naa nine a
GROVE FARM COMPANY, INCORPORATED, a Hawai'i corporation, ALPS
ACQUISITION SUB, INC‘, HUGH W. KLEEAHN, ALLAN A. SMITH, SANDRA L.
DAY, DONNA, ‘CARSWELL, PAMELA W. DOHRMAN, ROBERT D. MULLINS,
WILLIAM D." PRATT, WILCOX PATTERSON, and RANDOLPH G. MOORE,
Respondent s-Defendant s-Appel lees
and
ALLAN SMITH, SANDRA DAY and WILCOX PATTERSON, Respondents-
Defendants
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 00-01-0211)
‘QRDER DISMISSING CERTIORARI PROCEEDING
(By: Moon, C.J., Levinson, Nakayama, Acoba, JJ.,
and Circuit Judge Biondin, in place of Duffy, J., recused)
Upon further consideration of the records and files in
this case, it appearing that the writ of certiorari herein was
improvidently granted,
IT 18 HEREBY ORDERED that this certiorari proceeding is
dismissed.
DATED: Honolulu, Hawai'i, July 31, 2007.
Gortm
BORD rnte~
Peete, Catan Bes
Lt. KUL
aad
|
48718f3c-5e2e-4dbc-a3ab-cc4d4b6198d0 | In re Petition of Allen | hawaii | Hawaii Supreme Court | ™- 28689
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
IN THE MATTER OF THE PETITION OF
BERTRAM W. ALLEN
OF sn came
ORIGINAL PROCEEDING
LE:6 HY
ORDER
(By: Moon, C.3.)
upon consideration of Bertram W. Allen's petition to be
certified as an attorney to appear in matters before the second
circuit court, it appears that petitioner may appear as an
attorney in matters before the second circuit court only in
accordance with the provisions of Rule 1 of the Rules of the
Supreme Court of the State of Hawai'i, Rule 1 does not provide
for the certification sought by petitioner. Therefore,
YT IS HEREBY ORDERED that the petition shall be
processed without payment of the filing fee.
YP 1S FURTHER ORDERED the petition is denied.
DATED: Honolulu, Hawai'i, August 20, 2007.
it Justice {
oats
|
b44a0c05-14e3-4fe0-b088-db903e5134a7 | Allen v. Lahaina Yacht Club | hawaii | Hawaii Supreme Court |
No. 26904
IN THE SUPREME COURT OF THE STATE OF HAWAI'I:
BRYON ALLEN, Petitioner-Appellant, 3
ke 22 ony 02
aa
es
LAHAINA YACHT CLUB, and FIREMAN’S FUND INSURANCE CO.,
Respondent s-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO. AB 2001-323(M) (7-$7-01046)
‘ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI
(ey: Nakayama, nr £0E the court!)
Petitioner-Appellant’s application for writ of
certiorari filed on August 16, 2007, is hereby dismissed as
untimely.
DATED: Honolulu, Hawai'i, August 22, 2007.
FOR THE COURT:
Buse OS rurou ove
Associate Justice
Kevin H.S. Yuen, for
for petitioner-appellant,
on the application
considered by: Moon, C.J.) Levinson, Nekeyens,
nd Duffy, 99.
|
aaf959bf-108f-4bb6-8468-128d1041ac15 | State v. Leiato | hawaii | Hawaii Supreme Court | No, 27795
TALALEMOTU LEIATO, Petitioner-Appellant .
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Respondent-Appellee, 8]
ae
ve se oN 2
ae > oF
ese &
#
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 05-1-0530)
(By: Noon, C.J., for the court")
soner-appellant Talalenotu Leiato’s application
iorari, filed June 27, 2007, is hereby rejected.
for writ of cer
guly 23, 2007.
DATED:
Honoluly, Hawai'i,
FOR THE COURT:
Ys Sustice
batty,
coneise:
|
b171f97c-c947-451d-89cf-f509a792be3a | State v. Ford | hawaii | Hawaii Supreme Court |
No. 27688
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
™
=
fr
oc
FOOSEVELT FORD, JR., Petitioner-Defendant-Appeliant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(eencR. NO. 051-2068)
exec r ERTTOBAR
tay: Nakayena, Je, for the court’
ang Reoba, 3.) gonesrring separately)
Petiticner-Defendant-Appellant’s application for writ,
of certiorari filed on July 23, 2007, is hereby rejected.
DATED: Honolulu, Hawai'i, August 29, 2007.
FOR THE COURT: Pre,
\ f 4)
Rae Conemtqare {* SEAL
associate Justice \c 5
Pe oe wast
Karen T. Nakasone on wi
for petitioner-defendant-
appellant on the application
Yceneidered by: Moon, C.d., Levingen, Nekeyame, Recba, and Duffy, 29.
|
aa6d696a-e906-478b-b614-07d3d0720090 | State v. Spillner | hawaii | Hawaii Supreme Court | LAW LIBHAD
No. 27722
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Plaintiff-Appellee-Respondent,
MICHAEL SPILLNER, Defendant-Appellant-Petitioner.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Traffic Nos. 5878068M0, 5878063MO)
ac PPLICAT) WRIT oF BI
(By: Levinson, J., for the court’)
upon consideration of the application for a writ of
certiorari filed on July 20, 2007 by the defendant-appellant~
petitioner Michael Spillner, the application is hereby accepted
and will be scheduled for oral argument. The clerk of the court
will contact the parties regarding scheduling.
DATED: Honolulu, Hawai'i, August 21, 2007.
FOR THE COURT:
on the applicatior
Deborah L. Kim, Deputy Public Defender
for the defendant-appellant-petitioner
Michael Spillner
aad
al
§
Considered by: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, 9.
|
17193e1c-339a-46ce-b0e5-19d534073530 | State v. Maugaotega. Dissenting Opinion by J. Acoba, with whom J. Duffy joins [pdf]. S.Ct. Opinion, filed 06/29/2005 [pdf], 107 Haw. 399. Dissenting Opinion by J. Acoba, with whom J. Duffy joins [pdf]. By a Petition for a Writ of Certiorari, the U.S. Supreme Court vacated the judgment, and remanded the case to the Hawaii Supreme Court, filed 02/20/2007. S.Ct. Notice Regarding Reopening of Appeal No. 26657 and Order to Transmit Trial Records to the Hawaii Supreme Court, filed 05/15/2007 [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRARY
06 FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER *+*
IN THE SUPREME COURT OF THE STATE OF HAWAT':
--— 000
STATE OF HAWAT'I, Plaintiff-Appellee,
Defendant-Appellant .
MITI MAUGAOTEGA, JR.,
a
No. 26657 g
ORIGINAL APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NOS. 03-1-1897, 03-1-2724, 03-1-2725, 03-1-2726, 03-1-2727)
I 190 cong
O27,
OCTOBER 1, 2007
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.,
J., CONCURRING ‘AND DISSENTING SEPARATELY
AND ACOBA,
WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY LEVINSON, J.
on February 20, 2007, on petition for a writ of
certiorari, the United States Supreme Court vacated the judgment
of this court in State v, Maugaoteaa, 107 Hawai'i 399, 114 P.3d
905 (2005) (Maugactega I), in which this court affirmed the
defendant-appellant Miti Maugaotega, Jr.‘s extended terms of
imprisonment, and ordered that we reconsider Maugaotega’s appeal
in light of Cunningham v, California, 549 U.S. __, 127s. ct.
856 (2007). Maugaotega v, Hawai'i, 549 U.S. __, 127.5. Ce. 1210
(2007).
For the reasons discussed infra, we vacate Maucaotega’s
original extended term sentences and remand to the circuit court
for non-extended term sentencing.
‘** FOR PUBLICATION IN MEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER *:
T. BACKGROUND
On June 16, 2004, Maugactega appealed from the extended
term sentences imposed upon him pursuant to Hawai'i Revised
Statutes (HRS) § 706-661 (Supp. 1999)! and HRS § 706-662(4) (a)
* tn 2004, HRS § 706-661 provides
In the cases designated in (HRS $} 706-662 (zee infra
ote 2}, 2 person who has been convicted of @ felony nay be
Sentenced to an extended indeterminate term of imprisonment, When
Ordering such a sentence, the court shall impose the maximum
length of imprisonment which shall be as follow
(2)"""Fer murder in the second degree -- life without the
possibility of parcler
(2) Fora class & felony
Andeterninate Life term of
oe B felony =~ indeterminate twenty-year term of
ona
w © felony -- indeterminate ten-year term of
Imprisonment
‘The minimum length of imprisonment for sections 2, 3, and 4
shall be determined by the Hawai[]1 pareling authority in
accordance with (HRS 5] 706-669.
Effective June 22, 2006, the Legislature amended HRS $§ 706-661 and ~662, see
2006 Haw. Sess. L. Act 230, $§ 23, 24, and S4 at 1012-13, 1025, to addre:
Concerns raised by the Hawai'i Judicial Council that Hawaii's extended term
Sentencing schene faced challenges in federal court that it viclated &
sndant's right to # jury trial, protected under the sixth amendnent, to the
United States Constitution, as articulated in agprendi v. New Jersey, 530 U.S.
466 (2000), and its progeny. See
naive Review g ae 21-274 (2008); Sen Stand.
Conn. Rep. No. 3215, in 2008 Senate Journal, at 1557; Hse. Stand. Coun. Rep.
No. 665-06, in 2006'House Journal, at 1359. The amended version of HRS
§ 706-561 provided in relevant part:
The court may sentence 2 person who satisfies the criteria
for any of the categories set forth in’ (HRS $). 706-662 to an
extended term of imprisonment, which shall have a maximum length
8 follow
(2)""" for murder in the second degree ~~ life without the
possibility of pero
(2) Fora class A felony =~ indeterminate 1ite ter of
imprisonment?
(3) For a cless B felony -- indeterminate twenty-year term
of imprisonment; and
(4) For class C felony ~~ indeterminate ten-year tern of
imprisonment.
In_exercising ite discretion on whether to innose the
suterded term of inprigonsent of to use other available sentencing
(continued...)
'** FOR PUBLICATION IN WEST’S HAWAT'T REPORTS AND PACIFIC REPORTER ***
(1993 6 Supp. 2003),?
-continued)
When ordering an extended term sentence, the court shall
impose the maximus length of imprisonment...
(Emphasis added.) Effective June 30, 2007, the amended version of HRS
$ 706-661 expired and the Supp. 2003' version, supra this note, was reenacted.
See 2006 Hau. Seas. L. Act 230, § S¢ at 1025:
+ tn 2004, HRS § 706-662 provided in relevant part:
A convicted defendant may be subject to an extended term of
imprisonment under (HRS §] 706-661{, gg8 aupta note 1], if the
convicted defendant satisfies one of nore of the following
(a) "The defendant is a persistent offender shose imprisonment,
for_an extended term is necessary for crotection of the
‘public. the
Sefendant nas previously been convicted of two felonies
Committed at different tines when the defendant was eight
years of age or older.
(2) The defendant is a professional criminal whose imprisonpent
for an extended term is necessary for the protection of the
public. The court shail not make this finding unless:
(a) the eizcunstances of the crine show that the defendant
has knowingly engaged in criminal activity as a major
Source of Livelshosdy oF
(b) The Gefendant has substantial income or resources not
explained to be derived fron a source other than
criminal activity.
(3) The defendant is 2 dangerous person whose imorisonment for
an_extended term ie necessary for the protection of the
Bublic. the court shail not mate this findsng uniese the
Gefendant has been subjected to a psychiatric or
paychological evaluation that docunents a significant
history of dangerousness to others resulting in crinii
vielent conduct, and this history makes the defendant @
serious danger to others.
(4) The defendant 1s a multiple offender vhose cripina) actions
sere so extensive that a sentence of imeriscoment for an
ty
he court stall not sake this finding unless!
(a) The Gefendant_is being sentenced for two or more
felonies or is already Under sentence of inprisonsent
for felony: of
(b) The maxinum terme of imprisonment authorized for each
Gf the defencant’s crimes, if ade to ron
Consecutively, would equai or exceed in length the
maximum of the extended term inposed or would equal or
(Cont ined...)
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21, ssontinued)
‘exceed forty years if the extended term inposed is for
Selase A felony.
(5) The defendant is an offender against the elderly,
handicapped, or a minor under the age of eight, whose
rotection of che sublic. he court shall aot make this
‘finding unless:
(a) The defendant attempts or commits any of the following
crines: murder, manslaughter, a sexval offense that
constitutes a felony under [HRS] chapter 701, robbery,
felonious assault, burglary, or kidnapping; and
(b) The defendant, in’ the course of committing oF
attempting to’ conait the crine, inflicts sericus or
Gubstantial bodily injury upon’ a perton who i
Ui) Sixty years of age of olders
(41) Blind, "a paraplegic, or a quadripl
(EL) Elghe’ years of age or younger
(c) Such'dissniaity ie known or Feasonably should be known
to the defendant.
(6) The defendant is's hate crime offender whose imprisonment
[uslle. the coure shell not mene this finding unless’
(G) the defendant is convicted of a crime under [ARS
chapter 107, 708, or 711) and
(b) The aefendane intentionally selected a victim, or in
the case of a property crime, the property that w
the object of a crime, because of hostility toward the
actual of perceived race, religion, disability,
Ethnicity, national origin, gender identiey of
expression, of sexual orientation of any person...
(Emphases added.) In section 24 of Act 230, effective June 22, 2006, the
Legislature amended HRS § 706-662 to address the same alleged constitutional,
infirmities discussed supra in note 1. Act 230 amended HRS § 706-662 to
provide in relevant part:
[A defendant who has been convicted of @ felony qualifis
fan extended term of inprisonsent under (MRS $] 706-66) if the
Convicted defendant satisfies one or nore of the following
eriteria:
{1} The defendant is @ persistent offender in that the defendant
has previously been convicted of tho felonies committed at
different times when the defendant has eighteen years of age
or older
(2) The defendant is a professional criminal in that:
(2) The circumstances of the crime show that the defendant
has knowingly engaged in criminal activity as a major
source of Livelihoods oF
(b) The defendant has substantial income or resources not
explained to be derived from 2 source other than
Eriminal activity:
(3) The defendant is a dangerous person in that the defendant
(continved,
for
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by the circuit court of the first circuit, the Honorable Patrick
Border presiding, following Maugactega’s conviction of twenty-two
w
6)
«
esfects
Supp. 2003 version, gupta this note, was reenacted. See 2006 Haw. 5
continues
hhas been subjected to @ psychiatric or psychological
evaluation that docunents @ significant history of
Sangerousness to others resulting in criminally violent
conduct, and this history makes the defendant & serious
Sanger to others.
‘The defendant is a'muliiple offender in that:
(a) "The defendant is being sentenced for two or more
felonies or is already under sentence of imprisonment
for felony: oF
(b) The maxinun Lerme of imprisonment authorized for each
ef the defendant's crimes, if made to run
Eonsecutively, would equal or exceed in length the
aximun of the extended term inposed or would equal or
Gaceed forty years if the extended term imposes 1s fOr
selass A felony?
The defendant is an offender against the elderly,
handicapped, or a minor under the age of eight, in that
(a). The defendant attempts or commits any of the
following crines! murder, manslaughter, a
Sexual offense that constitutes @ felony under
[HRS] chapter 707, robber
Burglary, oF kidnopping; end
(b) The defoncant, in the course of committing or
Attempting to conait the crine, inflicts serious
Gr substantial oily injury upon a person who
[4) Sixty years of age or olders
(1d) Bling, a paraplegic, or a quadriplegic; or
(L4) Eight’ years of age or younger and
(e) Such disability is know oF reasonably should be
known to the defendant; oF
‘The defendant is a hate crime offender in that
(a) The defendant is convicted of @ crime under (HRS)
Ghapter 10,708, or 1117 and
(b) The defendant intentionally selected a victim or, in
the case of @ property crine, the property that was
the object of s crime, because of hostility toward the
actual oF perceived race, religion, disability,
ethnicity, national origin, gender identity or
expression, oF sexual oflentation of any person...
pired and the
ue
one 30, 2007, the amended version of HRS § 706-662
Act 230, § 54 at 1025.
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offenses alleged in five separate indictnents. see
Mausaoteaa I, 107 Hawai'i at 401-03, 114 P.3¢ at 907-09
(detailing a total of twenty-two counts of which Maugactege was
convicted, including one count of attempted murder in the second
degree, in violation of HRS $$ 707-701.5 (1993) and 707-500
(4993), five counts of robbery in the first degree, in violation
of HRS § 708-840(2) (b) (1) and/or (14) (1993 & Supp. 2003), three
counts of burglary in the first degree, in violation of HRS
§ 708-810(1) (c) (1993), two counts of sexual assault in the first
degree, in violation of HRS § 707-730(1) (a) (1993 6 Supp. 2003),
and two counts of promoting a dangerous drug in the third degree,
in violation of HRS § 712-1243 (1993 & Supp. 2003)). The
prosecution filed five separate motions for extended tems of
imprisonment. Id, at 402-03, 114 P.3d at 908-09.
on May 17, 2004, the circuit court conducted a
ventencing hearing during which 1t concluded that Maugaotega
qualified as a multiple offender under HAS § 706-662(4) (a), a2
supra note 2. In Cr. No, 03-1-1897, the court ruled:
onder 706-6624) (a) the requirement
LMprlsctert ff a anand tem To acenary for he
defendant {2 being sentenced for two or move felonies:
sesaye"thagecteggs ta being senvencee forte
felonies, 14 of which involved the named victin,
thelve of those involving the use of a firesrm in the
> the allegations against Naugactega were contained in five criminal
cases, namely, Cr. Nos. 031-1897, 031-2726, 031-2125, 03-1-2726, and
031-2727. For the details of the counts contained within each indictment,
soe Maugactegs 2, 107 Hawai"! at 402-03, 114 F.3¢ at 908-09. None of the
indictnents sileged that, if convicted, Maugactega could be subject to
extended sentencing as multiple offender for whom extended terms of
imprisonment were necessary for the protection of the public.
6
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connission of the offence. Yet another offence,
(p}romoting (p}rison (contraband in the (f)irst
(Glegree, involves the use or introduction into the
prison of a device which is dangerous in nature, to
Mitr a shank(,] and (this) represents a heightened
Sanger, particularly when introduced ints a prison
setting.
careful examination of [Maugsotega}’s conduct
An the period between May and June of 2003)
Gencnstrates a pattern of escalating violence
The... first offenses in late May were burglaries,
prinieiiy involving 2 risk to property. The second
Eluster of offenses involved -r escalated to robbers
With the use of 2 seni-suvonatic weapon in furtherance
of crines!
The ‘third cluster of offenses involved [s)exual
[a}esaule and (xJobbery, once again facilitated by the
Use of a firearm. The most violent of the offenses
followed in June 26th with the attenpted murder of
Eric Kawanoto. There were a total of
victims of wiolent or potentially vio
‘thin the relative short period between late May and
the end of June, 2003.
‘Given the facts of these offenses, the court
concludes that. (Maugsctega] is 2 multiple offender
Snder (aks §) 706-6424) (a).
were 20 extensive that the sentence of amoc.scnnenk
ST ee a erates
Hf the publics Conscasent ies the forcseeueaent =
Hamer Ossieies? te erences.”
Maugactege I, 107 Hawai'i at 403-04, 114 P.3d at 909-10 (quoting
May 17, 2004 circuit court proceedings) (brackets in
Mauaacteas I) (some emphasis added and some in original). The
circuit court rendered similar findings of fact regarding
Maugactega’s multiple-offender status and the necessity of
extended terms for the protection of the public (hereinafter,
“the necessity finding”) in granting the other four motions for
extended terms of imprisonment and proceeded to sentence
Maugactega to extended terms on all twenty-two counts. Id. at
403-05, 114 P.3d at $08-11. On May 17 and May 18, 2004, the
circuit court entered judgments convicting Maugaotega of and
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sentencing him for the twenty-two counts charged in the five
criminal cases. Id. at 401, 114 P.3d at 907.
on September 8, 2004, the circuit court entered written
findings of facts (FOFs) and conclusions of law (COLs) and orders
granting the prosecution's motions for extended terms of
imprisonment as a multiple offender. Id. at 405, 114 P.3d at
911. The circuit court found, inter alia that:
=, Maugactega . . . is a multiple offender” whose
Commitment for an extended term is necessary for the
protection of the public because of the following
‘races
‘2. [Maugactega) has an extensive juvenile
criminal history.
., -[Maugactega]’s criminality has continued
despite his prior contacts with the criminal justice
systen.
. {Maugactega] has failed to benefit from the
criminal justice systen.
@. (Maugactega] has demonstrated a total
disregard for the rights of others and & poor attitude
tonara the law.
‘e., (Maugaotega) has denonetrated a pattern of
criminality which indicates thet he is Likely to be a
Fecidivist in that he cannot conform his behavior to
the reguirenents of the lax.
£. Due to the quantity and seriousness of the
instant offense, (Maugactega) poses a serious threat
to the community and nis leng(*]term incarceration is
necessary for the protection of the public.
Id. at 405, 114 P.3d at 911 (some brackets added).
Maugaotega timely appealed from the May 17 and 18, 2004
judgments, arguing that
tthe circuit court erred in granting each of the
prosecution's five notions for extended terms of
inprisonnent because the [FOF] that extended terns
were necessary for the protection of the public was
fot, subaitted toa Jury and proved beyond’ a reasonable
Goubt, in violation of the sixth anendnent to the
United States Constseueion,
Id. at 407, 114 P.3d at 913. He contended that “*{aJllowing a
judge to pick and choose which factors [a]re “intrinsic” or
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“extrinsic” leads to the same type of arbitrariness and
absurdity’ that the United States Supreme Court sought to curb in
Apprendif v. New Jersev, 530 U.S. 466 (2000),] and Blakely
Washineton, 542 U.S. 296 (2004)].” Maugaotega I, 107 Hawai'i at
407, 114 P.3d at 913. A majority of this court rejected
Maugaotega’'s arguments and, on July 29, 2005, entered a notice
and Judgment on appeal, affirming the circuit court’s May 17
and 18, 2004 judgment and sentences.
on October 27, 2005, Naugactega filed a petition for a
writ of certiorari with the United States Supreme Court, which,
on November 2, 2005, docketed the application as No. 05-7309. on
February 20, 2007, the Court granted the application and entered
a mandate and judgment, vacating our July 28, 2005 judgment and
remanding the matter to this court for reconsideration in light
of Cunningham.
II. pEscussION
the 1 si Court's Inte:
Distinction And Jones v. United States, Apprendi, And
Thesr Progeny
1. This court's anal oteaa I
In State v. Kava, 102 Hawai'i 1, 72 P.3d 473 (2003),
this court drew a clear distinction between findings that
qualified a defendant for an extended term of imprisonment and
findings that a sentencing judge made in the traditional exercise
of discretion in deciding whether to impose an extended term
pursuant to HRS § 706-662(4). Id, at 9-10, 72 P.3d at 481-82.
The former determination -- i.e,, that the defendant was a
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multiple offender -- arose out of multiple felony convictions
obtained by proof beyond @ reasonable doubt in adjudicative
proceedings, before a trier of fact, subject to criminal due
due, the
necessity finding -- entailed a traditional exercise of
process protections, while the latter determination
discretion by the sentencing judge, reviewable for abuse of
discretion:
Tt is settled that an extended term sentencing
hearing is "a separate criminal proceeding apart. trom
the trial of the underlying substantive offense,”
wherein “all relevant iaaues should be established by
the state beyond a reasonable doubt.” State v. famae,
56 Maw. 626, 635, S40 P.20 632, 63) (1976). In Seaee’
wHusleman) €0 Haw. 71, S88 2.24 394. (1975), this
Court addressed the procedural protections to be
accorded criminal defendants at’ an extended ter
Sentencing hearing and announced 9 two-step process in
which a sentencing court must engage in order to
Impose an extended term sentence. id. at Je, £68 P.2d
at 356. For purposes of a motion for en extended term
Of imprisonment under HRS § 706-662(4), the first step
Eeguires @ finding beyond a reasonable doubt “tnat the
Gefendant is a multiple offender, which finding may
hot be made unless the defendant is being sentenced
for two or more felonies or is under sentence fers
felony ang the maxinun terns of imprisonment
authorized for the defendant's crines meet certain
Fequisites.” Jd. In the event that the sentencing
court finds that the defendant is a miltiple offender
Under subsection (4), the second step requires the
Sentencing court to determine whether “the cefendant’s
connitment for an extended term is necessary for the
protection of the public.” Ig, at 77, 588 F.20 at
Soe
The deternination that the defendant is =
nenber of the class of offenders to which
the particular subsection of [ARS]
§ (706-1662 applies involves “historical
facts,” the proof of hich exposes the
int to. punishment by an extended
term sentence, similarly to the menner in
hich the proof of hie quilt exposes him
to ordinery sentencing... But when
the status of the defendant has been
established, the process by uhich the
court deternines that the defendant's
Commitment for an extended term i
necessary for the protection of the public
10
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=. Ae one which deals with the subject
matter of ordinary sentencing.
Ids at 79°60, $88 P.2d at 400. As such, the first
phase of the Huslenan twowstep process must afford a
Sefendant "the full panoply of constitutional
protections guaranteed in criminal proceedings,” ses
; 63 Haw. 488, 498-99, 630 P.2d" 619,
ELT TSEI), which includes the rights to notice and an
opportunity fo be heard, cross-examination of
Witnesses appearing at the sentencing hearing, and the
Gvidentiary safeguards set forth in the Hawai'i Rules
Of Evidence (HRE). Son Kamas, 56 Haw. at 638, 548
Piz at 638-39. By contrast, the procedual
"afeguards to which the second phase of the uelsnan
tnorstep process is subject are those applicable to
ordinary Sentencing, and, therefore, “the NRE are not
Controlling.” Stas v. Loa, 63 Hawat'l 335, 355, 926
P-2a 1258, i278 (1996), Moreover, “(under ordinary
sentencing procedures, the court is ‘afforded wide
Iatitude in the selection of penalties fron those
Brescrited and in the determination of their severity.
his authority is normally undisturbed on review in
the absence of an apparent abuse of siscretion or
Unless applicable statutory and constitutional
consande have not been cbserved.’” State v, Okumura,
‘8 Hawai'i 363, 423, 894 F.2d 80, 110 (1995)
Kaua, 102 Hawai'i at 9-10, 72 P.3d at 481-82. We explained that
the two-stage extended term sentencing process articulated in
Huelsman
Ag Limited to enhanced sentencing, such as
extended prison terms. pursuant to. HRS
$5 106-661, 106-682, and 706-664 (2993)*],
in which the “determination that the
Getendant 1s a menber of the class of
offenders to which the particular
statute) applies snvolves ‘historia
+ Rs $ 706-664 provides:
Hearings to determine the grounds for inposing extended
terme of inprisonsent may be initiated by the prosecutor or by the
court on its own notion. The court shall not impose an extended
term unless the ground therefor has been established at a hearing
after the conviction of the defendant and on written notice to the
Gefendant of the ground proposed. subject to the provisions of
[HRS'§} 706-6041, pertaining to notice and opportunity to be heard
ith Feepect to tentence], the defendant shall have the right to
hear and controvert the evidence against the defendant and te
offer evidence upon the issue.
a
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facts.‘ uelsnan, 60 Haw. at 79, 568
P2aat 400. Thi ds because such
“historical facts” are wholly extrinsic to
the specific cireunstances of the
Gefendant’s offense and therefore have no
Dearing on the issue of guilt per ae. By
contrast, if the “aggravating
Circumstances” justifying the imposition
of an enhanced sentence are “enmeshed in,"
or, put differently, sntrineic £0 the
“commission of the crime charged,” then,
An accordance with the
69
812. (is87)1, such agers
circunstances "must be alleged in the
indictment in order to give the defendant
notice that they will be relied on to
Prove the defendant's guilt and support
the sentence £0 be imposes, and they must,
be determined by the trier of fact.”
State vl Scnraeser, [10 Haw. App. $35,
545, 880 Pz (208, 212 (1992)]
ve , 76 Hawal"s (517,] 528, 880 P20
1192/1 203 (1994) hereinafter, Schiceder I1}) (sone
brackets added and soe in eriginal) (enshaeis sn
original)
Ady at 10-11, 72 P.3d at 482-83 (some brackets added and some in
original).
Prior to Kaua, in State v, Tafova, 91 Hawai'i 261, 982
P.2d 890 (1999), this court had augmented the groundwork for the
intrinsic/extrinsic distinction, noting that
iin reviewing ovr previous case law, it is apparent
that “intrinsic” factors, required to be plea in the
indictment and found by the jury, are distinguishable
in that they are contemporaneous with, and enmeshed
in, the statutory elements of the proscribed offen
Contrarily, “extrinsic” factors are separable from the
offense itself in that they involve consideration of
collateral events or inforaetion. Occurrence at a
pricr tine is indicative, although not dispositive, of
S conclusion that s factor is “extrinsic.”
Id. at 271, 982 P.2d at 900. We held that the factors set forth
in HRS § 706-662(5), see supra note 2, involving offenses against
the elderly, handicapped, or very young, were intrinsic to the
a2
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offense charged and, therefore, had to be pled and proved to the
trier of fact, overruling Huelsman to the extent it permitted all.
facts enumerated in HRS § 706-662 to be found by the sentencing
judge. Id, at 271-72, 982 P.2d at 900-01.
We reached the foregoing result in part based upon our
concerns that the United States Supreme Court, in Jones v. United
States, 526 U.S. 227 (1999), “called into question the
constitutional vitality of allowing a sentencing judge to make
[POFs} leading to an extended term of imprisonment.” Tafova, 91
Hawai'i at 272, 982 P.2d at 901. As we later noted in Kaua,
however, the reasoning articulated in Jones could ultinately be
reconciled with this court's intrinsic/extrinsic analysis:
In Jones | the United States Supreme Court
Addressed’ the question whether certain provisions of =
careJacking statste, which prescribed enhanced
sentencing penalties, creates acditionsl elenents of
the offense, which would have to be found by the Jury,
of rerely sescribed sentencing considerations, which
Could permissibly be determined by the sentencing
Sudge.” in conelding the former, the Jones Court
jssentsally drew 2 distinction, 25 this court did in
Schicadert “111 and Tafova, between (1) factual
Findings thet were inextricably enmeshed in the
Charged offense and therefore probative of the
Gefendant’ s commission of thet offense and (2) factual
Fingings that were wholly independent of the offense
in'the indicenent and spoke coly to
Setice of the defendant that were pertinent
fo the appropriate degree of punishment, The Jones
Court noted that “{mJuch turns on the determination
that a fact io sn elenent of an offense rather than @
sentencing consideration, given that elesents must be
Charged in the indictment, submitted to a Jury, and
proven by the Government beyond a reasonable doubt.”
foe ues. at 232... Thos, Jones declares that
Many fact’ (other thai [e) prior conviction) that
increased the maxinon penalty for 2 crime must be
Charged in an indictment, suemitted to a Jury, and
proven beyond a reasonable doubt." [Idi] at
243... Zafoua recognized, however, ‘that to extend
the jones tationale to “extrinsic” facts "would
contaminate the jury's required focus on the factual
Circumstances surrounding the (charged) offense and
13
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potentially require the introduction of inadnissible
rior bad act(s] oF overly prejudicial evidence to
Fequire the jury to make such findings.” Tafova, 91
Hawai" ae 273 nei, 902 P-24 at 902 ne15.
Kaua, 102 Hawai'i at 11-12, 72 P.3d at 483-84 (some brackets
added and some in original). In short, in Kaua we concluded that
songs (1) merely confirmed our analysis that, where a fact was
intrinsic to the offense charged, it had to be proved to the
trier of fact beyond a reasonable doubt and (2) left unchanged
the rule that the sentencing court, not the trier of fact,
Weighed extrinsic facts in an exercise of its traditional
discretionary sentencing authority, Id.
We further concluded in Kaua that, insofar as the
“hate-crime” law at issue in Apprendi -- establishing an extended
term for a defendant who committed a crime motivated by an
improper bias toward, inter alia, the victim's race, gender, or
religion® -- was clearly intrinsic in nature, Apprendi, like
Jones, comported with our intrinsic/extrinsic analysis in Tafova
and Schroeder It and did not require that extrinsic facts,
including those extrinsic facts implicated in HRS § 706-662(4),
* Ids at
be found by the trier of fact rather than the judge
+ tn so concluding, we noted the similarity between the New Jersey
statute at iseue in Aporendi and HRS § 706-€62(6) (Supp. 2001), se
ote 2; which established a similar racial basis for sn extended sentence, if
the crine in question were motivated by an improper bias. Id, at 12.9.8, 72,
Pidd at 484 m6
‘Moreover, we concluded that the factors set out in HRS
$ 206-662 (5) and (6), in contrast to those erticslated in ARS § 706-662 (2),
(3), and (4), 98 supra note 2, were intrinsic co the crine charged and,
hence, had to be pied in the charging instrunent and proved beyend a
Feaschable doubt to the trier of fact. Kaua, 102 Havait at 13, 72 P.3d at
485 (citing Tafoya, 91 Hawai'i at 271-72, 982 P.2d at 900-01; Schroeder I], 76
Hawai'i at 258; 680 P.24 at 203).
4
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12-13, 72 P.3d at 484-85 (citing Tafova, 91 Hawai'i at 271-72,
982 P.2d at 900-01; Schroeder II, 76 Hawai'i at $28, 880 P.2d at
203; State v. Carvalho, 101 Hawai'i 97, 63 P.3d 405 (App. 2002)
(holding that HRS § 706-662 was not constitutionally infirm and
reading Tofova in harmony with Apprendi).
In the years following Apprendi, the United States
Supreme Court refined its sixth amendment analysis in, inter
alia, Blakely and United States v, Booker, $43 U.S. 220 (2005);
neither case altered our conclusion that Hawaii’s extended term
sentencing regime complied with Apprendi and a criminal
defendant’s constitutional right to @ jury trial.
In Blakely, the United States Supreme Court overturned
a Washington state determinate-sentencing-guideline scheme
wherein the defendant's conviction of kidnapping rendered him
Liable to a “presumptive guideline range” sentence of betu
forty-nine and fifty-three months of imprisonment. 542 U.S. at
298. The Washington court, however, had sentenced Blakely to an
exceptional “upper range” term of ninety-months’ imprisonment by
making a required judicial finding that Blakely had committed the
crime with “deliberate cruelty.” Id, On Blakely’s appeal to the
United States Supreme Court, Washington argued that the statutory
maximum for Blakely’s offense was, in fact, 120 months, dependent
upon the appropriate findings being made, and, therefore, that
the sentencing court had acted within its legitimate
discretionary authority in sentencing Blakely to ninety month
imprisonment. Id, at 303. The Blakely majority rejected this
argument, concluding that “[the Court's] precedents make clear .
as
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+ that the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the
defendant.” Id. (citing Ring vs Arizona, 536 U.S. 584, 602
(2002); Harris v. United States, 536 U.S. 545, 563 (2002);
Apprendi, 530 U.S. at 488) (emphasis in Blakely). Insofar as the
Washington court could exceed the presumptive range only by
relying on additional, judicially-determined facts such as that
the defendant had acted with “deliberate cruelty,” Blakely’s
sentence violated the Apprendi rule because “the relevant
‘statutory maximum’ is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may
impose without any additional findings.” Id. at 303-04 (emphasis
in original)”
In State v, Rivera, 106 Hawai'i 146, 102 P.3d 1064
(2004), we distinguished Blakely on the grounds: (1) that our
indeterminate sentencing scheme contains no presumptive guideline
> Relevant to our statutory structure, wherein the inposition of an
extended term sentence is discretionary, sg8, ide, MKS 106-66) ("(A) person
Who has been convicted of 2 felony pay be sentenced to an extended
Andeterminate term of imprisonnent."} (emphasis added), the Blakely Court also
conclused that
nlor does it matter that the judge must, after finding
eqgravating facts, make a judgment that they present compelling
(ground for departure. Me cannot sake that judgment without
Hinding some facts to support. it beyond the bare elements of the
offense. Whether the judicially deteraines facta requie ®
Sentence enhancerent of merely allow it, ‘the verdict alone does
Rot authorize the sentence
542 0,5. at 305 n.8, quoted in Cunningham, 549 0.8. at _, 127s. ce
(chardcterizing the foregoing lenguage asa holding snd"Féiteraticg thet
“road discretion. ... to determine whether an enhanced sentence is warranted
in any particular Case{) does not shield a sentencing system fren the force of
our decisions”) (brackets and emphasis added)
16
‘48* FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***
ranges? and (2) that the facts at Sssue in Blakely ~~ i.e, that
Blakely had acted with deliberate cruelty -- were intrinsic to
the charged offense, which, under our precedent, would be for the
trier of fact, rather than the sentencing judge, to find in any
event. See id. at 159-60, 102 P.3d at 1057-58. We affirmed
Rivera's extended term sentences, imposed pursuant to HRS
$ 706-662(1) and (4), see supra note 2, as a persistent and
multiple offender because the facts upon which the sentence
relied -- i.e., prior and concurrent convictions -- were “outside
the purview of the jury’s fact-finding function.” Id. at 160,
102 P.3d at 1058. With regard to the necessity finding, we
reasoned that, insofar as a sentencing judge was required to
consider the same factor during standard sentencing, pursuant to
HRS § 706-606(2) (c) (1993),* the necessity finding was not
requisite for imposing an extended term but, rather, was an
+ ars § 706-606 (39!
Amposing a sentence,” provide
+ entitled "Factors to be considered in
‘The court, in determining the particular
shall consiges
mntence to be imposed,
(iy The nature and circumstances of the offense and the
history and characteristics of the defendant?
(2) The need for the sentence impos
(ay “"Zo reflect the seriousness of the offense, to
promote respect for law, and to provide just
Punishment for the offense;
() ‘To afford adequate deterrence to criminal
conduct
(c) __Tovprotect the public from further crimes of the
Gefendant; and
(4) To provide the defendant with needed educational
or vocational training, medical care, or other
Correctional treatment’ in the most effective
(3) The kinds of sentences availabley and
(4) The need to avoid unwarranted sentence disparities
rong defendants with similar records who have been
found guilty of similar conduct.
vv
‘+# FOR PUBLICATION IN WEST’S HANAI'I REPORTS AND PACIFIC REPORTER *#*
expression of traditional judicial sentencing discretion and,
therefore, did not implicate or violate Blakely. Id, at 161-64,
102 P.3d at 1059-62.
2. Maugaotega I
In Maugacteaa I, we opined at the outset that both Kaua
and Rivera confirmed that Hawaii's extended term sentencing
scheme comported with Apprendi and, therefore, disposed of
Maugactega’s point of error. 107 Hawai'i at 402, 114 P.3d at
908. Nevertheless, being aware of the United States Supreme
Court's opinion in Booker, we took the “opportunity to reassert
the viability of this court's analytical ‘intrinsic/extrinsic’
approach to Hawaii's statutory extended term sentencing schene.”
Is
In Booker, the United States Supreme Court analyzed the
federal sentencing guidelines in light of Apprendi and its
progeny. $43 U.S. 226-44. The Court concluded that the
mandatory nature of the guidelines violated Apprendi because they
required the sentencing judge to find additional facts before a
sentence could be extended beyond the standard prescribed range,
which was based on the elements of the crime proved beyond @
reasonable doubt to a jury. $43 U.S. at 235 (quoting Blakely,
542 U.S. at 305) (reiterating that no matter whether the judge
must make a specific finding -- e.a., in Apprendi, of racial bias
“+ or any additional finding, a defendant's right to a jury trial
is violated when “*the jury's verdict alone does not authorize
the sentence( but, rather, tJhe judge acquires that authority
usted in
only upon finding some additional fact.’”!
18
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Maugotega I, 107 Hawai'i at 408, 114 P.3d at 914. The United
States Supreme Court explained that
LiJE the Guidelines as currently written could be read
a5 rerely advisory provisions that reconnensed, rather
than required, the selection of particular sentences
in respense to differing sets of facts, their use
would hot implicate the sixth Anendment. We have
ever doubted the authority of 2 judge to exercise
broad discretion in inposing « sentence within a
statutory range.
Booker, 543 U.S. at 233 (emphasis added). Therefore, the Booker
Court's solution was to excise the mandatory portion of the
sentencing guidelines in order to render them actually
discretionary, thereby establishing a true sentencing range up to
the absolute maximum authorized by the elements of the charged
offense, within which a judge was fre
to select a just sentence
in the exercise of traditional discretion. Booker, 543 U.S. at
234-35, 245.
In Maugacteaa I, we held that “inasmuch as (1) Booker’s
holding is limited to the federal sentencing guidelines, and (2)
Hawaii's extended term sentencing structure is not mandatory, ”*
“Booker has no bearing on this court’s disposition (of
Maugactega’s appeal].” 107 Hawai'i at 402, 409, 114-P.3d at 908,
In Cunningham, the Court emphasized that “Lalay fact that
increases the pensity for a crine beyond the prescribed statutory naxinun must
be'submitted toa jury, and proved beyond a reasonable doubt-" 5490.5. at
we etiié, 127 8. Cey a¢ B69 nile. (quoting Acprengi, 530 0.8. at 430)
Tacketed saterial altered) lesphasis odded in cuaninahaa). “Noreover, the
Court held that whether an extended tere sentence was manaatory oF
Siscretionory was irrelevant for purposes of Auarendi coupiiance so long ae
the extended sentence peauited a Judicis! finding of fect. ide ay 22? 5.
Ge. SE'865. (quoting Blaney. 542 vs. at 305.n-6). In Light of ehiF end ovr
Conclusion ‘hat the Cunpinatan saJority would view the necessity finaing
inhether in SRS § 106-€e2 oF enscenced sn HRS § 7067606) ae a predicate
required findingy gee infea section if.0rl, it 1a unlikely that the
tadzacteas | distinction would survive scrutiny under Conninahan
1s.
‘4+ FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND FACIFIC REPORTER
915. In reaching this conclusion, we again relied on the
distinction between intrinsic factors, such as those found in HRS
§ 706-662(5) and (6), see supra note 2, involving factors
pertaining to the age, race, or other characteristics of the
victim, which are enmeshed in the circumstances surrounding the
commission of the charged offense, and extrinsic factors
pertaining to the character of the defendant and reaffirmed our
conclusion that the necessity finding remained the province of
the sentencing court in the traditional exercise of its
discretion. 107 Hawai'i at 408-10, 114 P.3d at 914-16 (citing
Rivera, 106 Hawai'i at 150, 157, 163, 102 P.3d at 1048, 1055,
1061).
8. Cunningham Leaves No Doubt That A Majority of The
United States Supreme Court Rejects The
Intrinsi inct ion.
Justice Kennedy, joined by Justice Breyer in his
dissenting opinion in Cunningham, eloquently articulated an
iteration of this court's intrinsic/extrinsic distinction and the
compelling rationale underlying it:
In my view the Auprendi line of cases remains
incorrect.” Yet there my be @ principled rationale
Permitting those cases to control within the central
Sphere of their concern, while reducing the
collateral, widespread harm to the criminal justice
system and the corrections process now resulting from
the Court’ s wooden, unyielding insistence on expanding
the Aporends doctrine far beyond ite necessary,
boundaries. The Court could distinguish between
Sentencing enhancenents based on the nature of the
offense, where the Apprendi principle would spply, and
Sentencing enhancenents cased on the nature of the
offender, where it would not. California ateenpted to
make this initial distinction. Compare Cal. Rule of
Court 4.423 (a) (Criminal Cases) (West 2006) (24aeing
aggravating *[fJacts relating to the crime”),
Rule 4-421 ib) (iisting aggravating “(flacte relating
to the defendant”). The Court should net foreclose
20
‘s4 FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ¥*
ite efforts
ie’ distenting opinions have suggested before,
‘the Constitution ought not to be interpreted to strike
Soen sli aspects of sentencing systens that grant
Sudielal discretion with sone legislative direction
and control. dodges and legislators must have the
Capacity to develop consistent standards, standards
thet individual juries enpanelea for only 2 short tine
Cannot elaborate in any permanent way. 9a, g.du,
Blakely, 542 U.s.[] at 314... (opinion of O'Connor,
Sei dda{] at. 326-327... (opinion of Kennedy, J.)
(explaising that "[slentencing guidelines are a prine
Gnanple of [the] collaborative process” between courts
Gna Legislatures). Judges and sentencing officials
have a broad view and long-term commitment to
Correctional systems. Juries do not. Judicial
officers and corrections professionals, under the
Guidance and control of the legislature, should be
Gheouraged to participate in an ongoing manner ‘to
Improve the various sentencing scheses in our country.
ais aysten of guided discretion would be
permitted to a large extent if the Court confined the
‘role to sentencing enhancenente based on the
fature of the offense. These would include, Tor
example, the fact that @ Weapon was used; violence was
Cnployeds a stated amount of aruge of other contraband
as involved; or the crime was motivated by the
vicein's race, gender, or other status protected by
Statute. ‘Juries could consider these setters without
Serious disruption because these factors often are
pare of the statutory definition of an sggravates
Erine in any event and becouse the evidence to support
these enhancements iz Likely to be # central part of
the prosecution's case.
Ge the other hand, Judicial determination is
appropriate with regard to factors exhibited by the
Gefendant.. These would include, for example, prior
convictions; cooperation or noncooperation with law
Snforcenent) renorse o the lack of it; or cther
Sopects of the defendant's history bearing upon his
Background and contribution to the conmunity. This is
bo even if the relevant facts were to be found by the
jucge by # preponderance of the evidence. These are
Zacks that should be taken into account at sentencing
but have little if any significance for whether the
Gefendant committed the crime. Sas Berman ¢ Bibas,
Heking Sentencing Sensible, ¢ Onie st. J. Crim. L. 37,
55-57 (2006)
The Line between offense and offender would not
always be clear, bot in most inevances tne nature oF
the Offense is defined in a manner that ensures the
problem of categories would not be difficult.
Koprends suffers fron @ similar line-drawing problen
Between facts that must be considered by the jury and
other coneiderations that @ judge can take into
2
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account. The main part of the Aucrendi holding could
bbe retained with far less systemic disruption. It is
to be regretted that the Court's decision today
appears to foreclose consideration of this spproach or
other reasonable efforts to develop systens of guided
Giscretign within the general constraint that 2oprends
imposes
Cunningham, 549 U.S: at |, 127 S. Ct. at 872-73 (Kennedy, J.,
dissenting, with whom Breyer, J., joined) (some underscoring in
original and sone added). The majority tersely rejected what it
called “the bifurcated approach Justice Kennedy proposes.” Id.
at __n.14, 127 S.Ct. at 869 n.14 (quoting Apprendi, 530 U.S. at
490) (“JAlny fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
Proved beyond a reasonable doubt.) (brackets and enphasis in
Sunningham) .
©. Cunnin inated The Th
act Th on 0
Extended Term Of Inprisonment Outside The Maximum
uth a 7s Verdi
Cunningham addressed California’s determinate
sentencing law (DSL), which allowed a sentencing judge to depart
from a presumptive middie-range sentence and increase a
Gefendant’s sentence if the court found, by a preponderance of
the evidence, that additional facts in aggravation, relating
either to the crime or the character of the defendant, were
present that justified an upper range sentence. 549 U.S. at __
6 nul, 127 S, Ct. at 860-62 6 n.1. The DSL expressly required
that no elenents necessary to convict the defendant of the
underlying offense could be relied upon to impose an enhanced
term. id at __, 127 S.Ct. at 263.
22
‘444 FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *#*
Justice Ginsburg, writing for the majority, made it clear
at the outset of Cunningham that
the Federal Constitution's jury-trial guarantee
proscribes a sentencing schene that allows a judge to
Tnpose a sentence sbove the statutory asximin based oo
a'fact, other than a prior conviction, not found by a
Jury of sdniteed by the defendant. "(T]he relevant
setatutory maximum,’ this Court has clarified, "is
not the maximum sentence a judge may inpose afte:
Finding additional facts, bot the maximun he may
Impose without any additional findings.”
549 U.S. at __, 127.8. Ct. at 860 (citing Booker; Blakely; Ring
Apprendi) (quoting Blakely, $42 U.§. at 303-04) (internal
citations omitted) (emphasis in Blakely). Moreover, by its
rejection of Justice Kennedy's intrinsic/extrinsic compromise,
supra, the majority nailed down the proposition that “facts”
included any findings of fact made by a judge -- even those
pertaining to matters within the traditional sphere of judicial
sentencing discretion -- that were prerequisites to the
imposition of an extended term sentence. See 549 U.S. at __
n.14, 127 8, Ct. at 869 n.14.
‘This court has consistently asserted that the necessity
finding, strictly speaking, is not a “fact” subject to
determination by the trier of fact but, rather, a traditional
expression of a sentencing court's expertise in weighing the
factors set forth in HRS § 706-606, see supra note 8, which
include the protection of the public, in order to determine the
appropriate punishment. See State v. White, 110 Hawai'i 79,
89-90, 129 P.3d 1107, 1117-18 (2006); Rivera, 106 Hawai'i at
162-64, 102 P.3d at 1060-62. We reasoned that only after the
sentencing judge has determined that imprisonment, not probation,
23
‘s** FOR PUBLICATION IN WEST’S HANAT'T REPORTS AND PACIFIC REPORTER
is necessary for the protection of the public do the factors
enumerated in HRS § 706-662(4) -- i.e., prior convictions
expressly exempted from the Apprendi rule -- authorize the
imposition of an extended term sentence. white, 110 Hawai‘i at
89-90, 129 P.3d at 1117-18; Rivera, 106 Hawai'i at 163, 102 P.2¢
at 1061.
Justice Alito made much the same argument in
Gunningham, 5490.8. at __ 6 n.2, 127 S. Ce. at 873-74 € 0.2
(Alito, J., dissenting) (arguing that “the Court has consistently
stated that when a trial court makes a fully discretionary
sentencing decision . . . the Sixth Amendment permite the court
to base the sentence on its own factual findings” and noting that
four of the justices on the Court when Booker was issued
concurred that “history does not support a right to jury trial
in respect to sentencing facts’) (quoting Booker, 543 U.S. at
328 (Breyer, J., dissenting in part)) (some internal quotation
signals and brackets omitted). He questioned, first, whether
determination that an aggravating factor justified an extended
sentence was, indeed, 2 “fact” for sixth anendnent purposes:
[2)t is not at all clear that 2 California court must
opposes to identifying & relevent policy
iat California sentencing Goure fist fing is's
s Sanioh, California's
Court fules make cleat, can include any “criteria
reasonably related to the decision being made.”
Cunningham, 5490.8. at __, 127 8. Ct. at 879 (Alito, J.,
dissenting) (quoting California Penal Code Ann. § 1170(b):
California Rule of Court 4.408(a)) (emphasis in Cunningham).
Justice Alito then noted that:
24
s** FOR PUBLICATION IN WEST’S HANAI'T REPORTS AND PACIFIC REPORTER ***
California courte are thus enpowered to take
inte account the full panoply of factual and policy
Considerations that have traditionally been considered
By Judges operating under fully discretionary.
sentencing regines ~~ the constitutionality of which
the Court hes repeatedly resffirgd. California law
explicitly authorizes @ sentencing court to take into
account, for exemple, broad sentencing objectives like
Punishnent, deverrence, restitution, ana uniformity,
fee Rule 4-410, and even a judge's “subjective belief”
Seto the
‘of the
tence, a8 long a
° Policy considerations
‘been outside the province of
the jury and do not implicate the Sixth Amendnent
concerns expressed in Anorendi.
Id, (some internal citations omitted) (emphasis added) .
In Hawai'i, our “broad sentencing objectives,” set
forth in HRS § 706-606, see supra note 8," encompass, like Cal.
Court Rule 4.410, the traditional sentencing objectives of
punishment, deterrence, restitution, rehabilitation, and
uniformity. As noted, we have long concluded: (1) that the
necessity finding, as articulated throughout HRS § 706-662, is,
in fact, merely an expression of a sentencing judge’s traditional
application of HRS § 706-606 to determine that a period of
imprisonment was warranted as provided by HRS §§ 706-656(2)
(Supp. 1996) (terms of imprisonment for second degree murder and
Compare HRS $ 706-606, supEa note €, with Cal, Rule of Court
4.101)
(a) General objectives of sentencing include:
(1) Protecting society?
(2) Punishing the defendant:
(3) Encouraging the defendant to lead @ law-abiding life in the
foture and deterring him oF her fron future offensi
(4) Deterring others fren criminal conduct by
consequenc
(5) Ereventing the defendant from conmitting new crimes by
{golating him or her for the period of incarceration:
(6) Securing restitution for the victims of criney and
(7) Achieving uniformity in sentencing
25
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attempted second degree murder},"" -659 (Supp. 1994) (terms of
imprisonment for a class A felony), and ~660 (1993) (terms of
imprisonment for a class 8 or class C felony}; (2) that any
extended term sentence was separately predicated upon the other
“facts” articulated in HRS § 706-662(1) to (6); and (3) that,
insofar as the necessity finding was not a finding made solely
within the extended sentencing statute, it was not dissonant with
Apprendi and its progeny. white, 110 Hawai'i at 89-90, 129 P.34
at 1117-18; Rivera, 106 Hawai'i at 162-64, 102 P.3d at 1060-62.
% RS § 706-656(2) provides in relevant part
Except 28 provided in (HRS $1 706-657, pertaining to
enhanced sentence for second degree murder, persons convicted of
Second degree murder and attenpted second degree mirder shall be
Sentenced to 1ife imprisonment with possibility of parol
URS § 106-659 provides in relevant part:
Notwithstanding part TZ{, pertaining to probation] [HRS $6)
706-605, 106-606, 70€-606.5, 7066.1, T06-G61, and 106-662) and
any other law to’ the contrary, a person who has been convicted of
2 Glass A felony, except class A felonies defined in chapter 122,
[pertaining te drugs and intoxicating compounds), shall
be sentenced to on indeterminate term of inpriscnment of twenty
years without the possibiiicy of suspension of sentence or
Probation...
URS § 706-660 provides in relevant part:
A person who has been convicted of s class B or class C
felony may be sentenced to an indeterminate tem of inprisonment
except a8 provided for in [HRS §) 706-660.1 relating to the use of
Hirearms in certain felony offenses and (iiRS $).106-606.5 relating
to repeat offenders. When ordering such a sentence, the court
shall inpose the maxinun length of impriscnment which shall be
follows:
ony “= 10 years; and
fC felony =- § yea
26
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Sunnincham rejected our long-held belief. California's
DSL system created @ presumptive middie term from which the
sentencing court could not depart without first entering into the
zecord findings of circumstances in aggravation or mitigation, to
be determined by considering all aspects of the defendant's case,
including statements submitted by the victim or the victin's
family." Id. at __
in aggravation were defined as “‘facts which justify the
127 S. Ct. at 861-62. The circumstances
Amposition of the upper prison term.'" Id. at __, 127 8. Ct. at
862 (quoting Cal. Court Rule 4.405(d)) (emphasis in Cunningham) .
‘The Cunningham majority relied on the California
language defining the circumstances in aggravation as “facts,”
distinguished those findings from the general sentencing factors
enunerated separately in Rule 4.410(a), and concluded that, in
determining that an aggravating circumstance justified an upward
departure fron the default middle term of imprisonment, the
Californie sentencing court was engaging in fact-finding that
increased the defendant's sentence beyond that authorized by the
jury’s verdict, thereby offending the Apprendi rule. Id. at __,
127.8. ct. at 863, 870-71.
In considering whether “(t]he defendant is 2 multiple
offender whose criminal actions were so extensive that a sentence
‘of imprisonment for an extended term is necessary for the
protection of the public[,]” HRS § 706-662(4) expressly
M the noneshaustive list of aggravating circumstances are provided
in Cal, Court Rule 4.421 relating to the defendant, the crime, and "*{alny
other facte statutorily declared to be circumstances in aggravation,” id. at
127 S. Ce, at 662,
2
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prescribes certain criteria. As directed by the plain language
of HRS § 706-662(4), see supra note 2, the circuit court in the
present matter expressly entered the necessity finding in its
written orders granting all five motions for extended term
sentencing. Although the necessity finding is also a traditional
sentencing’ consideration articulated in HRS § 706-606(2) (c), see
supra note 8, as was true in California’s system, the reasoning
of the Cunningham majority leaves no doubt that, like
California’s DSL system, a majority of the United States Supreme
Court would consider the necessity finding set forth in HRS
$ 706-662(4) as separate and distinct from traditional sentencing
considerations and, instead, as a predicate to imposing an
extended prison term on @ defendant that, under Aporendi and its
progeny, must either be adnitted by the defendant or be proved
beyond a reasonable doubt to the trier of fact, $30 U.S. at 490.
Moreover, it is a near certitude that the
Cunningham majority would deem HRS $$ 706-656(2), -659, and -660,
nee supra notes 11, 12, and 13, as the presumptive, standard
felony sentences, akin to the middie term in Cunningham, 549 U.S.
at __, 1278, ct, at 861-62, and the standard range in Blakely,
$42 U.S. at 299. The Cunningham majority reiterated what it
perceived as a core message of Apprendi and its progeny:
Sour precedent makes clear... that the ‘statutory
erinun’ for auocandd purposes is the naximun sentence
4 judge may impose golely on the
~ sin other words, the Felevant
“statutory Saxisun’ is net the naxinum senvence 2
guge may impose after finding sdditional facts, but
the maximum he sey inpose sachout any additional
Hindings. when a judge inflicts punishment that the
jury's vercict alone does not allow, the jury has not
Found sil the facts ‘which che law make essential to
28
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the punishment,’ . . . and the judge exceeds nie
proper authority.”
Cunningham, $49 U.S. at __, 127.8. Ct. at 865 (quoting Blakely,
542 U.S. at 303 (quoting 1 J. Bishop, Criminal Procedure § 67
at 55 (2d ed. 1872)) (citing, inter alia, Ring, 536 U.S. at 6027
Harris, 536 U.S. at 563)) (emphasis in Blakely). Later in the
opinion, the Cunningham majority repeated the point:
We cautioned in Blakely that broad
discretion to decide what facts may support an
enhanced sentence, or to determine whether an enhanced
sentence is warranted in any particular case, doe!
Shield 2 sentencing system from the force of our
decisions. If the jury's verdict alone does not
Buthorize the sentence, if, instead, the Judge must
find an additional fact to'inpose the longer term, the
Sixth Amendment requirement 12 not satisfied,
Id. at __, 127 8. Ct. at 869 (citing Blakely, 542 U.S. at 305 &
1.8). In light of our conclusion, supra, that a majority of the
United States Supreme Court would characterize the necessity
finding in HRS § 706-662(4) as a predicate judicial finding for
Apprendi purposes, the statutory maximum under our current law
would be the standard indeterminate maximum sentences set forth
in HRS §§ 706-656, -659 and -660, insofar as they represent “the
maximum [2 judge] may impose without any additional findings,”
ide
Inasmuch as (1) HRS § 706-662, in all of its
manifestations, authorizes the sentencing court to extend a
defendant’s sentence beyond the “standard term” authorized solely
by the jury’s verdict (2) by requiring the sentencing court,
rather than the trier of fact, to make an additional necessity
finding that (3) does not fall under Apprendi’s prior-or-
29
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concurrent-convictions* exception, we hold that the statute is
unconstitutional on its face." Therefore, Maugactega’s extended
term sentences imposed by the circuit court violated his sixth
amendment right to a jury trial and were illegal. Moreover,
similar constitutional infirmities infect HRS § 706-662 as a
whole, to the extent that each subsection requires the sentencing
court to make the offending necessity finding." See supra note
2.
The United states Supreme Court has always exempted prior
convictions from the Acprengi rule: "(t]he Federal Constitution's)
Guarantee proscribes a sentencing schene that silos a judge to, inp
Sentence above the statutory maximum based upon a fact, gther than's friox
sonviction, not found by a jury or adnitted by the defendant.” cunningham,
569 Us. at“, 127s. ct. at 860 (citing Bosker Blakely; Rings Arorendt)
(enphasis added), “the Court beses the exception on the fact that prior
convictions have thenselves been subject to the sixth snendnent Fight to a
uty telal’ and the accompanying reguirenent of proot beyond a reasonable
Goubt.” See Auorandi, 530 U.8. at 487, 497. Although, to cur knowledge, the
Court nas never cirectly addvessed the issue, we see No reason uhy the seme
gxception would not apply to multiple concurrent convictions under HRS
$'706-662(¢), insofar as they are subject to the sane sixth ameninent
protections.
As noted, the 2006 session of the legislature, through Act 230,
temporarily excised the lenguage offensive to Cunninghas from HRS § 706-663,
see SubEa note 2, and inserted it into HRS § 706-661, sg0 supra note 1.
However, for the’ reasons discussed infra in section I1:D:1, we do not believe,
An Light of Cunninahan, that sections 23 and 24 of Act 230 wale survive
scrutiny in the federai courte.
© fy aggravating fact that HRS § 706-662 requires the sentencing
court to find as a precondition to an extended prison term 1s now
constitutionally infirm if not exempt under Cunningham, such as prior or
Gencurrent convictions or fact adnitted by the defendant. S49 U.S. at
127°. Ct. at 860; see also supra note 15.
‘This court recognized the constitutional infirmities contained in
HRs § 206-€62(5) and (6) in Tafoya, 91 Hawai at 272-72, 982 .24 at 800-01
(holding that the facts pertaining to the victin’s special status and the
defendant's knowledge of that status were intrinsic to the erine and, hence,
that ‘the sixth anendnent required that the facts be found by the trier of
fact) and in Kaya, 102 Hawai'i at 13, 72 P.3d at 405 (holding that the facts
set forth in HRS $ 706-662 (5) and (€) were intrinsic to the crime and for
determination by the trier of fact). The legislature did not, however, amend
the language of HRS § 706-662(S) and (6) to reflect the requirenents of Zafeva
or Kaua.
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D. ‘The Task Of Conforming The Extended Term Sentencing
‘Statutes To Cunningham Lies With The Leaislature,
Justice Ginsburg suggested two remedies available to
the states with respect to their extended term sentencing schemes
in the aftermath of Cunningham:
1 States have modified their
of Aoprendi and Blakely to retain
‘hey, have dane 49 by calling
pen the jury ~~ either at trial or ina
‘sentencing proceeding —— to find any fact
the inposition of an elevated :
States have chosen to permit jusges genuinely “to
exercise broad discretion... within s statutory
ange, "which, “everyone agrees," encounters no Sixth
Amendment shoal.
We note thet
systens in tl
Seterminate
549 U.S. at 127 8. Ct. at 872 (quoting Backer, 543 U.S. at
233) (footnotes omitted) (some ellipsis points added and sone in
original): see alse Smylie v. State, 823 N.£.2d 679, 685 (Ind.
2005) (recognizing two solutions in a sentencing scheme very
similar to Hewaii’s: (1) the present system of fixed terms, with
fact-finding assigned to a jury or (2) reform of the system to
create a true sentencing range). Our legislature attempted to
chart a third course by enacting amendments to HRS $§ 706-661 and
~662 in Act 230 of the 2006 legislative session, see supra notes
a and 2.
7 repeal ne Act 230 woul
likely survive review post= 7
In light of the Cunningham majority's insistence that
as a basis for an extended
any fact, however labeled, that serv
term sentence must be proved beyond a reasonable doubt to the
trier of fact, we believe that the United States Supreme Court
(or, at least, @ majority of it) would give short shrift to the
3
#4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
“solution” offered in Act 230, which relocated the necessity
Einding from HRS § 706-662 to HRS § 706-661 and cross-referenced
it to the traditional sentencing factors contained in HRS
§ 106-606. The Cunningham majority would obviously characterize
any extended term sentence based upon a sentencing court’s
necessity finding -- regardless of the particular statutory
source of that finding
a8 an unconstitutional denigration of
the jury’s role, because such a system would be deemed to
“allocate{] to judges sole authority to find facts permitting the
imposition of an upper term sentence, . . . violat{ing] the
Sixth Amendment.” Cunningham, 549 U.S. at __, 127 8. ct. at
870.
It ds noteworthy that the Cunningham majority rejected
California’s attempt to analogize its three-tier sentencing
structure to the newly discretionary federal sentencing
guidelines scheme established and sanctified in Booker:
California’ s OSL does not resemble the advisory
system the Booker ‘Court had in view. Under
California's systen, judges are not free to exercise
their “discretion to select a specific sentence within
a defined range.” California's Legislature has
adopted sentencing triads, three fixed sentences with
no anges between then. Cunninghan’s sentencing jusge
had no discretion to select a sentence within « range
of 6 to 16 years. Mis instruction was to select 12
years, nothing less and nothing more, unless he found
facta’ allowing the imposition af a sentence of € or 16
years. Factfinding to elevate 2 sentence from 12 to
16 years, cur decisions make plain, falls within the
province’ of the Jury employing s beyond-a-reasonable
Goubt standard, not the bailiwick of a judge
Geternining where the preponderance of the evidence
ies
Id at __, 127 S. Ct. at 870 (quoting Booker, $43 U.S. at 233).
‘The Cunningham majority would no doubt similarly find
the Hawai'i extended term sentencing scheme constitutionally
32
‘##* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *#*
wanting. We are convinced that it would view our sentencing
structure, like California’s, as failing “to permit judges
genuinely ‘to exercise broad discretion . . . within a statuory
range,’ which, ‘everyone agrees,’ encounters no [s]ixth
{almendnent shoal." Cunningham, $49 U.S. at __, 1278. Ct. at
871 (quoting Booker, $43 U.S. at 233) (ellipses in original) ."
2. In Light of the expressly stated legislative
rt 230, we dec
our inhere: der, on ©:
hata jury be empaneled
In State v. Peralto, 95 Hawai'i 1, 18 P.3d 203 (2001),
this court recognized its inherent judicial power to authorize,
‘upon remand, the enpaneling of a jury to serve as the trier of
fact in the event that the prosecution sought extended term
sentencing of a criminal defendant. In considering whether newly
established procedures for extended term sentencing ~~ fashioned
during the pendency of the defendants’ appeal -- should appiy to
the defendants’ own cases, we concluded that
(abeots *Sfettan eettoact ively, he.
Sentences ist te tocated sed the cases remanded #08"
few sentencing Rearing? in which a jury would be
Instructed according to Young.
© tn mnite, we concluded that Hawai'i had a range system, “(t]he
range inherent in Heusii's indeterminate sentencing schene (being)
SNSe between probation and the statutory meximim prison term, But, rather
indn’the sentencing Jodge setting the specific term that a defendant 1s £0
Serve, the minimum time served 3 set by the parole board.” 110 Hawai'i at
85, 129 P.34 at 1117. Our conclusion today is not necessarily irreconcilable
mith our reasoning in Woite but, insofer a® the statutory maximum is clearly,
ow the “standard tern” set forth in HRS § 706-656, ~659, and ~S€0, seg guna
notes il, 12, ond 13, any upvara departure to an extended term sentence would
implicate Cunninghas because the sentence would not be authorized solely by
the juryeveraice. Seg, gcg., Cunninoham, 549 Urs. ats 127 S.Ct. ae
Bes.
33
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> For examples of bifurcated adjudicative and
penalty proceedings where the court may enpanel a new
Jury after the appellate court remands the case for a
pew penalty proceeding, gee, fay, Ala. Code
$ Ish-s-46(b) (1994), bel. Coae Ann. tie. 12
§ 4209(9) (4) (1995), ueah ‘Code Ann. §76-3-207 5) (a)
(1399), Wash. Rev, Code Ans. § 10-95-050(4) (West
180).
«os. Because the sufficiency of the jury
instruction is procedural error, renand for
§ 706-657 hearing is posaible in the present case.
Gefendant’™ tence’
old that
§ 206=857 hearing or nav consent to-cesentencing
Eh Stesee
ies ork ed 5 ‘hal
‘the court.
Peralto, 95 Hawai'i at 6, 18 P.3d at 208 (emphasis added); see
also id. at 7, 18 P.3d at 209 (“Any prejudice that [the
defendants] may have suffered can be cured by granting them a new
HRS § 706-657 hearing in which the parties and the jury are
required to address the Young standards.”).
A number of foreign jurisdictions similarly recognize
that empaneling juries to accommodate Apprendi requirements
implicates an inherent power of the judiciary. See Aragon v.
Wilkinson ex rel, County of Maricopa, 97 P.3d 886, 891 (Ariz. Ct.
App. 2004) (*[A]ithough the statutory sentencing scheme does not
currently provide for convening @ jury trial during the
sentencing phase of a non-capital case, nothing in our rules or
(citing Acker v.
CSO Chivera, 934 P.2d 616, 818 (Ariz. Ct. App. 1997) (quoting
rior C jaricos 1» 5 P.2d 192, 194
statutes prohibits the court from doing so.
(Ariz. 1931) ("A court’s inherent authority may be defined
such powers as are necessary to the ordinary and efficient
34
‘** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
exercise of jurisdiction.”))}; Galindez v, State, 955 So. 2d 517,
27 (Fla. 2007) (Cantero, J., concurring) ("To remedy the
violations of Apprendi and Blakely, we would be entirely
justified in adopting a procedure for the empaneling of new
juries on resentencing. Nor would we be the first court to do
State v. Schofield, 895 A.2d 927, 937 (Me. 2005)
("Although state law does not specifically provide for a jury
trial on sentencing facts, our recognition of such a procedure is
well within our inherent judicial power to ‘safeguard and protect
within the borders of this State the fundamental principles of
government vouchsafed to us by the State and Federal
Constitutions.’”) (quoting Morris v. Goss, 83 A.2d 556, 565
(1951)). But see State ex. rel, Mason v. Griffin, 819 N.E.2d
644, 647-48 (Chic 2004) (concluding that, in light of
constitutional reasons unique to Ohie and statutory language
similar to Hawaii's requiring the sentencing court, not a jury,
to find aggravating factors for an extended sentence, the trial
court “patently and unambiguously lacks jurisdiction to hold a
jury sentencing hearing” and granting a writ of prohibition).
Nevertheless, in Act 230, the legislature expressed its
intent regarding how best to conform our extended term sentencing
regime to the requirements of Apprendi and its progeny and, in so
doing, did not vest in the jury the power to find the requisite
aggravating facts but, rather, directed that the sentencing court
should retain that responsibility. See 2006 Haw. Sess. L. Act
35
‘** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *#¢
230, $§ 23 and 24 at 1012-13; notes 1 and 2, supra.” We
therefore do not believe it to be appropriate for this court to
assert its inherent authority to empanel a jury on remand
In the wake of Blakely, a number of states reformed their
sentencing systems to comport with the Apprendi Line of cases by assigning the
necessary fact-finding responsibilities to jury. Ses, fads Aris. Rev
Stat. Ann. §13-702.02 (2006); Minn. state. Anns § 244,10" (West 2007)7 Hash
Rev. Code Ann. § 9.348.537 (Mest 2007). Both Minnesota's and Hashington's
statutes allow for bifurcated trials 1h cases in which notions for extended
term sentencing would inplicate evidence that would be prejedicial or
otherwise inadaiseible during the guilt adjudication phase. See Hino. State
nny § 248.10(5) (e? Wash: Rev. Code Ann. § 9-34A.537(0)
This court hae already articulated the manner in which = trial
would be conducted in connection with a motion for an extended term sentence
Based upon facts intrinsic to the offense charged. “see Stare v. Jena, 32
Hawat's 18, 34-38, 986 P.24 306, 321-22 (1999) (addresting the prosecution’ «
notion for an enhanced sentence pursuant to HRS § 706-65) (1993) for murder
especially heinous and cruel"). Cunningham, however, by rejecting the
Antrinsle/extrinsic distinction, seg 349 U-8. at faldy 127 8. te at B69
B.ld, essentially reinstates the role asserted in Eateada’ for boch intrinsic
Abd Gxtringic facts: "a defendant [must] have ‘fair notice of the charge
Sgsinst™ hint the aggravating circumstances must be alleged in the indictment
fand found by the jury,” Eatrada, 69 Haw. at 223, 738 P.2d at 029. (quoting
stew node, 59 Haw. 625, 635-36, 586 Pr2d 250, 258" (2578)).. "[Siuch
augravating circumstances “gust be’ alleged in the indictment in order to give
the defendant notice that they will be Felied on to prove the defendant’ =
guilt and support she sentence tobe inposed .. . .'* Tafoya, $1 Hawai'i at
270, 982 P24 at 099 (quoting Schroeder IL, 76 jiawai'i at 28,80 P.2d at 203
(ciscussing intrinsic aggravating factors) (some enphasis in Schroeder fi and
gone added). tt is therefore noteworthy that the indicenents against
Mevgactega dia not allege that, if convicted, he would be subject te extended
term sentencing nor allege the’ facts upon which the prosecution would base its
notions for extended terms. See susra note 3.
Without deciding the issue, we foresee that, in a reformed
extended term sentencing achene in uhich the jury is vested with the
Tesponsibility of making the requisite findings, notice of the prosecution's
intention to seek an extended sentence and the facts requisite to that
extended sentence ~~ but irrelevant and potentially prejudicial to the
defendant during the guilt phase of the trial -- would be included in the
Andictment but withheld from the Jury until the second phase of the trial,
@aring which the motion for extended term sentencing would be considered.” In
that Ranner, both the defendants due process right to notice of the potential
sentence to’be imposed ang the right te a fsir trial on the charged offense
before an impartial jury would be preserved. But geo Gtate ©, Chauvin, 123
Now.2d 20, 28-30 (Winn. 200€) (cefendent’s Apprends rights and right to ave
process were not violated by the prosecution's failure to include aggravating
Circumstances in the complaint, particularly in light of the fact thats three
weeks prior to trial, the prosecution provided the defendant separate notice
Of Ste intention to seek an extended term sentence and notice ef the facts
‘upon which it would rely in Seeking the sentence).
36
‘** FOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *
because, as a rule,
Ipleudentiat rules of judicial self-governance
Properly limit the role of the courts ina democratic
Socteey es S65 haw.
iS0,Ti, S57 Pataca, abe 907) aatevae the: Land
$3 same 106, 198, e28 Foe
498 izet) (esting Marchi. Saidin, 422 0.5, 490,
UStb)s so. MGnal“aoch ie is that,
Sesen_in'ehe sbennce £ constitutional restrictions,
(courte) most still ‘carefully weigh the sisson,
cfficacy, and finelinest of an'exereiee of thelr power
Sefore acting, sapecially share there-may-be an
strusisn into Stans sean Stes ce athe bretches of
“Tas tenphaste added) (citation
Saittedl
{ Atthough judicial review serves as a check
fon the unconstitutional exercise of power by the
executive and legislative branches of government, “the
only check upon (the Judicial branch’ a) exerci:
power ts: {ste) own sene of selivrestraine,” Des
Butter, 257 U.s. 1, 70-79. « . (1936) (Stone,
Sissenting) -
In_re Attorney's Fees of Mohr, 97 Hawai'i 1, 9-10, 32 P.3d 647,
655-86 (2001) (some brackets added and some in original) (some
ellipses added and some in original) (emphasis in original). See
also Ross v. Stouffer Hotel Co., 76 Hawai'i 454, 467, 879 P.2d
1037, 1080 (1994) (Klein, J., concurring and dissenting) (“*{T)he
[clourt’s function in the application and interpretation of .
laws must be carefully limited to avoid encroaching on the power
of (the legislature] to determine policies and make laws to carry
them out.‘) (quoting Boys Markets, Inc. v. Retail Clerks Union,
cal 770, 398 U.S. 235, 256-57 (1970) (Black, J., dissenting);
Bremer v. City ¢ County of Honolulu, 96 Hawai'i 134, 139, 28
P.3d 350, 355 (App. 2001) (quoting Life of the Land, 63 Haw. at
171-72, 623 P.2d at 438).
® sunsequent action by the legislature during its 2007 session
bolsters our conclusion. House Bill Ne. 1152, introduced on Januery 24,2007,
Sought to amend HRS $$ 706-662 and -668 to assign to the Jury the role of
(continsed.
7
‘+48 FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Wie are not alone in exercising such self-restraint.
See State v. Brown, 99 P.3d 15, 18-19 (Ariz. 2004) (declining to
prescribe a solution for aspects of Arizona’s extended term
sentencing scheme that viclated Apprendi, in part to allow the
legislature the opportunity to address the issue); State v.
Shattuck, 704 N.W.2d 131, 148 (Minn. 2005) (concluding that the
court “has the authority to establish procedures to apply the
requirements of Apprendi and Blakely to sentencing,” but
declining to impose a jury solution because “[i]t is the
legislature that created the [sJentencing . . . system and
retains authority over its development. For us to engraft
sentencing-jury or bifurcated-trial requirements onto the .
sentencing statutes would require rewriting them, something our
severance jurisprudence does not permit.”); State v. Dilts, 103
P.3d 98, 100-01 (Or. 2004) (declining to address the issue of
empaneling @ jury upon remand in order to allow the parties to
develop arguments at the new sentencing hearing); State v.
Exovest, 896 A.2d 55, 66-67 (Vt. 2005) (Ndeclin[ing] to follow
the example of those courts that have created their own
sentencing procedures to replace legislative schemes held
unconstitutional in the ake of Apprendi and Blakely”); State v.
Hughes, 110 P.3d 192, 208 (Wash. 2005), abrogated on other
(.. .continued)
aking the Findings requisite for the imposition of an extended term of
Smpriscnnent. gg H.B. 1152, 24th Leg., Reg. Sess. (2007), available at
etp://eapitol .nawaii.gov/sessioncurrent /bilis/HB1i82_S02_<hem: Haw. state
Leg. Bill Status for HB, Mo, 1152, available at httpi//eapitol -nawall
(gov/sitel /docs/getstatus?.asprbilliossstisz. On August 27, 2007, following
House disagreements with Senate anendnents to the bill, the measure was
Gelayed until the 2008 legislative session. Seg Haw. State Leg. Bi] status
for it-b. No. 2152, available at http: //capitol hawaii.
gov/siter/docs/getstatusz.asprbiline-#Bi 182.
38
‘4¢ FOR PUBLICATION IN WEST'S HAWAI'E REPORTS AND PACIFIC REPORTER *#*
grounds by Recuenca, 126 S. Ct. at 2553, (noting that the
relevant extended sentencing statute “does not include any
provision allowing a jury to make [the required findings) during
trial, during a separate sentencing phase, or on remand” and
concluding that “[t]o allow exceptional sentences here, we would
need to imply a procedure by which to empanel juries on remand to
find the necessary facts, which would be contrary to the explicit
language of the statute.”).” But see Svlie, 623 N.E.2d at
685-86, 691 (remanding to allow the prosecution “to prove
adequate aggravating circumstances before a jury or accept the
statutory fixed tern”).
TIT, CONCLUSION
In light of the foregoing, we vacate the May 17 and 18,
2004 judgments and sentences of the circuit court and remand this
matter to the circuit court for resentencing consistent with this
opinion.
on the briefs
James M. Anderson,
Deputy Prosecuting Attorney,
ree ye piatne etappel ice
Stee oe taxes Rss Oden
Karen T. Nakasone,
Deputy Public Defender
for the defendant-appellant
Miti Maugaotega, Jr.
the second renedy sanctioned by the Cunninsham majority -- Les,
the creation of a true sentencing range which "permit (s] Judges genuinely “to
tnereise broad discretion... within # statutory range,’ which, "everyone
Sores,’ encounters no Sixth Avendrent shosl," 549 0.8. at, 127.5. Cr. at
B51 (quoting Booker, "5¢3 U.S. at 233) (footnote omitted) =~ "would require us
to rewrite HRS ch. 706 in such a way as to transform it from an indeterns
yntencing schene. Sich wholesale reform, and the asce
rly best left te the legislature.
39
|
98af1330-feaf-441b-9195-9bcd8b957370 | Wilton v. State | hawaii | Hawaii Supreme Court | 121 Rd L~ 90 L002
FREEDUS W. WILTON, 11, Petitioner/Petitioner-Appellent
STATE OF HAWAI'I, Respondent /Respondent-Appellee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P, NO. 011-0006; CR. NO. 97-0050)
‘Acoba, J., for the court)
Petitioner/Petitioner-Appellant Freedus W. Wilton’s
application for writ of certiorari, filed on June 29, 2007, is
accepted and will be scheduled for oral argument. The parties
will be notified by the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai"i, august 7, 2007.
FOR THE COURT:
SIMEON R. ACOBA, JR.
Associate Justice
Jon N. Tkenaga, Deputy
Public Defender, on
the application’ for
Fetitioner/Petitioner~
Appellant.
Considered by Hoon, C.9., Levinson, Nal
jane, Reobe, and Duffy, 29.
ose
|
db3392ec-38d4-41d7-be61-889dcd8c4a97 | State v. Williams. ICA s.d.o., filed 12/21/2006 [pdf], 113 Haw. 58. S.Ct. Order Accepting Application for Writ of Certiorari, filed 04/10/2007 [pdf]. | hawaii | Hawaii Supreme Court |
{++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000.
STATE OF HAWAI'I, Respondent/Plaintift-Appellee
THOMAS WILLIAMS, Petitioner/Defendant~Appellant
_— um
No, 27286
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NOS. 00424005M and TB35: 04/08/05)
JULY 24, 2007
Shel hd 92 Tor LOU
MOON, C.J., LEVINSON, NAKAYAMA, RCOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY DUFFY. J.
Petitioner Thonas Williams seeks review of the
Intermediate Court of Appeals’ (ICA) January 22, 2007 judgment
affirming the April 8, 2005 judgment of the district court of the
second circuit.? We accepted Williams's application for a writ
of certiorari and reverse the judgment of the ICA.
Williams asserts that the ICA gravely erred in
affirming the district court judgment denying Williams's motion
to suppress evidence. Williams claims that there was no evidence
of a “collision” and an insufficient basis to support a finding
} the Honorable Paul Horikaua, Fer Diem Judge, presided over the motion
Bu Hanili, Fer Dies Judge, presided over the
nteneing
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
of probable cause to arrest Wiilions with the charge of Operating
Vehicle Under the Influence of an Intoxicant (OUI), Hawai'i
Revised Statutes (HRS) § 2918-61, both of which are required for’
an officer to order a mandatory blood extraction under HRS
§ 2918-21(c). Based on this contention, Williams filed a motion
to suppress the evidence gathered from the blood extraction,
which was denied by the district court and affirmed on appeal.
Wie hold that the district court was wrong in denying
Willians’s motion to suppress the blood test results, because
there was insufficient evidence that Williams was involved in a
“collision.” Therefore, we reverse the judgment of the ICA end
vacate the district court's April @ 2005 judgment, and remand
the case to the district court with instructions to enter an
order granting Willians’s motion to suppress and to allow
Williams to withdraw his conditional no contest pl
made
pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule
11 (2) (2). See State v, Kealaiki, 95 Hawai'i 309, 314 6 n.6, 22
P.3d 588, 593 & n.6 (2001) (observing “that in the case where the
pretrial motion seeks to suppress the evidence incriminating the
defendant and the appeal is decided against the government, the
proceedings would also ordinarily come to an end, the question
appealed being the underlying predicate reason for the
conditional plea” and that HRPP “Rule 11(a) (2) contemplates by
‘#** FOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER ***
its terms that the case would be remanded to allow withdrawal of
the conditional plea, after which . . . dismissal’ (may]’ follow
kecause of the, absence of the evidence suppressed”).
. 1. BACKGROUND
The facts in this case are drawn from the testimony of
Maui Police Department Officer Thonas Martins at the February 18,
2005 hearing on Williams's motion to suppress.
on March 5, 2004, at around 4:00 p.m., Officer Martins
was called to investigate @ motor vehicle accident involving a
male party and a motorcycle on the shoulder of the Haleakala
Highway, which is located in the Division of Mailuku, County of
Naui.
officer Martins arrived unaccompanied at the scene, and
observed the motorcycle on the side of the roadway and the male
party about fifteen feet away, close to the shoulder of the
roadway. Officer Martins saw that Williams was bleeding from the
mouth and complaining of pain to his mouth. According to Officer
Martins, Willians had @ laceration on his lip that was
approximately one-inch long.
pon making contact with Williams, Officer Martins, who
has received Driving Under the Influence (DUI) training for
detection of odor on @ party's breath and blood shot or watery
‘OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **
eyes, noticed an odor of alcohol on Williams’s breath. Officer
Martins had gotten close to Williams in order to request
Williams's driver's license, insurence card, and registration.
Medics arrived while Officer Martins was taking
Williams’ s information and then transported Williams to the
hospital, where a blood draw was taken at Officer Martins’s
request and without obtaining Williams's consent or a warrant.
On direct examination, Officer Martins testified that
based on his investigation -- which considered the lack of any
debris on the ground, skid marks, “or anything like that”
he
concluded that the cause of the accident wae that the party wes
intoxicated and fel1 from his motorcycle to the ground. However,
when asked whether the defendant had made any statements as to
what happened, Officer Martins replied, “I don’t recall exactly
what was said."? Subsequently, on cross-examination, Officer
Martins acknowledged that he did not know what caused the
accident:
0. And now, and you alse safé you don’t recall how the
accident was caused. “Let ne ask you this way? Do you know
Wat caused the accident?
A. We -= just. from the investigation that we got,
yes. No debris Gn the ground, no skid marks of anything
+ an a declaration attached to Milliane's motion to suppress, Joseph 7.
Toma, Williams's attorney at the hearing, stated that “Officer Martine also
noted in his report a stetenent from Defencant providing that. ‘while driving
Gown Haleakala Highway he lest control of his motorcycle and fell to the
Ground. State that’s all he can renenber.’* This purported statenent ty
wins ented a5 evidence in the motion te
super
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Like that, #0 the conclusion was that the party had fallen
‘own on the ground.
. @.. You don’t know that, right?
RW.
€!_ And you don't know whether there was ancther car
' that cane into the notoreycle’s lane of travel that caused
the motorcycle to fall to the ground?
Be.
G! You don’t know thats right?
on ré-cross examination, the following colloquy took
place: '
0. So just by the fact thet s person has alcohel on
his breath, that doesn't necessarily support 2 conclusion
that that person is intoxicated and inpaireds correct?
Be Compared to driving sctorcycies and getting into
fan acesdent?
Qe Right.
AL Unless there was sonething else: that caused the
secident.
@, Now, in Mr. WiLlJams" case, we don’t know what
caused the accident?
‘a. 'We con't know exactly.
officer Martins also acknowledged that while the
detection of an odor of alcchol on someone's breath indicates
that the person has been drinking, one could not conclude from
such an oder the amount of alcchol imbibed.
B. Procedural History
on May 5, 2004, the State of Hawai'i charged Williams
by complaint with one count of Operating a Vehicle Under the
Influence of an Intoxicant (OUI), in violation of HRS § 2916-61
(supp. 2004),? and one count of Conditions of Operation and
> HRS § 2918-61 provides in relevant pert:
Operating a vehicle under the influence of an intoxtcant. (a) A person
Cimaite the offence of epersting 6 vehicle under the influence cf an
Teontinved.
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Registration of Motorcycles and Motorscocters, in violation of
HRS § 431:10G~301, the latter of which is not at issue in this
ase. Williams filed a motion to suppress evidence on
February 7, 2005, in which he argued that no probable cause
existed to justify the forcible extraction of his blood pursuant
to HRS § 291E-21(c) (Supp. 2004). On April 8, 2005 the district
court issued a written order denying William's motion to
suppress. That order, in its entirety, stated the following:
A hearing was held on February 18, 2008, 0
Defendant’s Motion to Suppress Evidence’ filed he
Febroary 7, 2005, and the Court hav:
of Officer’ thomas Martins and the rs
therefrom and the record on file herein,
‘The Court finds thet Officer Thonss Martine had
probeble cause to arrest Defendant Thonas Allan Williens for
the offense cf Operating A Veniele Unser The Influence Of Rn
Intoxicant. Further, Defendant Thomas Allan Williams had
signiticent injuries thet justified the forced of Ieic]
withdrawal of a blood sample. Hawaii Revised Statues §
2918-21" See also, State v Entrekin, 98 Hew. 221 (2002)
‘Based upon the foregoing, the Notion to Suppress
fence filed on February 7, 2008, is hereby denied.
DATED: Wailuku, Mavi, Hawai'i APR O« 2005,
Williams entered into a conditional plea under HREP
Rule 11(a) (2), and timely appealed the district court’s order
Genying the motion to suppress.
41. continved)
Anteiteant’ 1! the person ope:
a venieze
(2) iste under the influence of alcohol in an amount sufficient
to impair the person's norms] mental faculties er ability to cere for
the person end guard ageinet casualty!
‘
tes oF assumes actual physical control of
(spo),
motion to suppre
the ICA affirmed the district court’s deni,
In ite December 21, 2006 summary disposition order
stating:
bbpon ca¥eful Yeview of the record and the briefs submitted
by the parties ane having given due consideration to the
sryuments advances and the issues se raises by the parties,
‘conclude thet the facts and elreustances were sufficient
fo warrant a person of ressonable caution (Officer Martins)
te believe that an offense had been conitted (Williams
Hlaing his sctereyele ander the influence of alcohol) and
Significant injury had cccarred (the laceration to Williams"
Ligh, and therefore sufficient prossble cause was
established to order that a blced extraction be perforned on
Williams. Williens’ ponconseneual blood extraction pursuant
to HRS § 2916-21 was sound. State v, Agvinaldo, 72 Haw. 57,
6,
Hawai'i 221, 47 P.3¢
pi2d 1228, 1228 (1989); State-w Entretin, 98
36 (2002).
ICA's S00 at 3.
m. BEVIEI
|LICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
of Willians’s
The appellate court reviews a “circuit court's ruling
on a motion to suppress de ncvo to determine whether the ruling
was ‘right’ or ‘wrong.’" State v. Kauhi, 86 Hawai'i 195, 197,
948 F.2d 1036, 1038 (1997) (citation omitted).
In motions to suppress evidence under the exclusionary
rule of the fourth amendment, we have said that
(z}he proponent of a motion to suppress has the burden of
Establishing not only that the evicence sought to be
excluded waz onlewfully secured, but slso, that nis or her
‘om Fourth Anendnent rights were violated by the
Seizure sought to be challenged.
eh and
State v, Anderson, 84 Hawai'i 462, 467, 935 P.2d 1007, 1012
(1997) (internal citations, quotation marks, brackets, and
emphases omitted). Rather then constitutional issues, however,
‘OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **
this appeal concerns whether the blood evidence was secured in a
manner that complies with our statute, HRS § 2928-21(c).
Therefore, in this de novo review, we must ask whether Willians
has met his burden of establishing that the blood draw was
unlawful under. the terme of the statute.
III. DISCUSSION 1
A, The Requirements for a Nonconsensual Blood Draw under
HRS $ 291-21(c)
The central issue in this case is whether officer
Martins complied with the statute mandating blood teste in
the event of 2 collision that results in injury or death and
for which the officer has probable cause to believe an
enunerated offense was conmitted. That statute, HRS § 2918-
21(c), provides in relevant part:
In the event of a collisicn resulting in injury or death and
Af law enforcenant officer le caus i
ction 707=702,5, 707-703, TOT=T0e, 701-705,
707-706, Ze1E=61, 2915-61.5, cf Z51E-EL, the law’ enforcement
officer’ shall request that & sample of blood or urine be
Fecovered from the vehicle operater or any other person
suspected of connstting # viclation.
HRS § 291E-21(c) (emphases added). Although framed in
mandatory terms (“the law enforcement officer shall”), this
court has also interpreted this statute as setting out the
basis of a police officer's authorization to obtain a blood
sample without consent. See Entrekin, 98 Hawai'i at 226, 47
P.3d at 341 ("HRS § 266-163 [the predecessor of HRS § 291E-
‘
++** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
21) authorizes the police to obtain a blood sample of a
driver involved in a collision resulting in an injury to or
death of any person, including the driver.” (Emphasis
added.) .
‘Therefore, @ police officer can lawfully obtain a
blood draw without consent if (1) there has been “a
collision resulting in injury or death” and (2) the officer
“has probable cause to believe that a person involved in the
collision has committed” one of the enumerated offenses.
HRS § 291-21. The results of nonconsensual blood draws
‘that do not comply with the statutory requirements are
unlawful and may be excluded from evidence (or suppressed by
appropriate motion) under the “fruit of the poisonois tree”
doctrine. See State v, Fukusaku, 65 Haw. 462, 475, 946 P.2d
32, 45 (2997) (“[T)he ‘fruit of the poisonous tree’ doctrine
prohibits the use of evidence at trial which comes to light
as a result of the exploitation of a previous illegal act of
the police.” (Quoting State v. Medeiros, 4 Haw. App. 248,
251 n. 4, 665 P.2d 161, 184 n. 4 (1983).)).
8 “collision” Reavire
Williams argues that “there is no real evidence of
a ‘collision’™ in this case. “Collision” is defined as “the
action or an instance of colliding, viclent encounter, or
‘OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
forceful striking together typically by accident ani so as
to harm or impede.” Webster's Third New Int’1 Dictionary
446 (1993). Based on the facts adduced at the motion to :
suppress hearing, there is insufficient evidence to conclude
that Williams was involved in a collision.
Officer Martins testified that he found Williams
sitting alone, on the shoulder of the highway, about 15 feet
away from the motorcycle, and that he was bleeding from the
mouth and had lacerated his lip. He further testified thet
his investigation revealed no debris on the ground, skid
marks, “or anything like that.” Notably absent from Officer
Martins’s testimony vas any indication that the motorcyle
was damaged or of its position with respect to the road.
Furthermore, by his own testimony, Officer Martins concluded
that, based on his investigation, Williams “fell off the
bike.”
‘These facts are insufficient to establish that
there was a collision. Although single-vehicle accidents
nay qualify as collisions, see Entrekin, 98 Hawai'i at 223,
47 P.3 at 338 (“Entrekin'’s auto crossed the center lane
marking of Haleakala Highway, sideswiped the guardrail along
the opposite side of the highway, and then crossed back into
his original lane of travel and collided with a dirt
20
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,
embankment.” (Emphasis adéed.)), in such a case the vehicle
must nevertheless “collide” with another object. Here, the
factual record does not establish any collision, and even
officer Martins’s theory of the incident merely suggests
that Williams “£el1," which is insufficient, without more,
to imply a collision. Without any collision, the blood draw
under HRS § 2916-61 was unlawful.
The district court did not make express
determinations regarding whether or not 2 collision
occurred, nor did the ICA consider the matter. Rather, the
lower courts focused on the injury requirenent, which was
apparent and not contested by Williams, and the probable
cause issue. .
As pointed out by the prosecution, Williams
appears to have conceded that he was involved in an
“accident,” as revealed by the questions his attorney asked
of Officer Martins at the hearing on the motion to suppress
However, Williams nowhere adnits to being invelved ina
“collision,” and, rather, has contested that very point.
‘The prosecution argues thet “the fact that Willians vas
involved in @ motor vehicle ‘accident’ as opposed to a
‘collision’ does not preclude the police from obtaining a
blood sample from Wil
ms pursuant to HRS Section 291£-21,"
‘*** FOR PUBLICATION IN WEST'S HAW!
REPORTS AND PACIFIC REPORTER ***
and notes that, in Entrekin, this court used the terns
“accident” and “collision” interchangeably in discussing the
applicability Sf HRS § 2916-21 to the facts of that case.
Tt 4s plain that in conmon parlance, an automobile
collision is often referred to as an “accident.” In fact,
autenobile “accidents” usually involve a collision, as the
Webster definition of the term “collision” -- an act that is
“typically by accident” -- recognizes. See supra. However,
while @ traffic accident can occur in various ways, the
statute requires thet there be collision. officer
Martins's theory that Willians “fell” from his bike would
qualify as an accident that falls short of @ collision, The
prosecution has not presented a persuasive argument that the
plain lenguage of HRS § 2916-21 is meant to enbrace
accidents that do not involve collisions. Although this
court, in Entrekin, at tines used the word “accident” te
refer to what wae clearly a collision, in no way were we
suggesting that the latter is not a necessary part of the
statutory requirement.
Furthermore, the legislative history of HRS
291E-21 buttresses the conclusion that “collision” cannot be
read as synonymous with “accident.” Although the current
statute was enacted in 2000, its predecessor was first
22
** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
enacted in 1981 and codified as HRS § 286-163. In its
initial form, it applied to “the driver of any vehicle
involved in an accident resulting in injury to or death of
any person.” 1961 Haw. Sess. 1. Act 67, § 3, at 101
(emphasis added). However, in 1995, the law was amended to
apply te collisions rather than accidents. See 1995 Haw.
Sess. L, Act 197, § 1 at 372-73 ("In the event of a
collision resulting in injury or death. . . .” (Emphasis
added.)). This change makes clear that the legislature
intended the amended law to apply only in case of a
collision, not merely an accident. When the law was
reenacted in 2000 as part of a consolidation of provisions
relating to operating a vehicle while using an intoxicant,
see 2000 Haw. Sess. L. Act 189, Part III, at 406-07, what
would become HRS § 2916-21 kept the prior law's reference to
“collision” rather than accident. Id, § 11, at 410-11,
Therefore, because there is insufficient evidence
of @ collision in this case, the statutory requirements of
HRS § 2916-21 were not met. For this reason, the blood draw
was improper and should have been suppressed. Having found
that the motion to suppress was improperly denied on this
ground, we need not address Williams's argument that the
district court erred in its determination that Officer
JON IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
Martins had probable cause to believe Williams had committed
the ‘OUT offense.
‘ TV. coNcLUSTON
Therefore, the January 22, 2007 judgment of the
ICA is reversed and the district court’s April 8, 2005 is
vacated and the case is remanded to the court with |
instructions to enter an order granting Williams’s motion to
‘suppress and to allow Williams to withdraw his plea pursuant
to HRPP Rule 11(a)(2). See Kealaiki, 95 Hawai'i at 314 6
n.6, 22 P.3d at $93 6 n.6.
Matthew S. Kohm
for petitioner/defendant- .
appellant Thomas Williams .
Peter A. Hanano,
bopety rosceneing Attorney, Ress Creare
for respondent /plaintif£-
appellee State of Hawai'i Or
|
19d39fa9-165d-4019-b344-ceb89e1412f5 | Awakuni v. Awana. Concurring Opinion by J. Moon [pdf]. | hawaii | Hawaii Supreme Court | ++ FOR PUBLICATION IN WEST'S HAWAF‘I REPORTS AND PACIFIC REPORTER ***,
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
‘000-=-
GAIL AWAKUNI; JANIS BUSH; DIANE KELLET; MONA STEVENSON; SUE
STOCK; NANCY TERUYA AND RAYMOND UYENO, FOR THEMSELVES AND ALL
OTHER SIMILARLY SITUATED EMPLOYEES,
Plaintiffs-Appellants,
ve.
ROB AWANA; HAROLD DECOSTA; MARK RECKTENWALD; KATHERINE ‘THOMASO}
KATHLEEN WATANABE; WILLARD MIYAKE; JOAN LEWIS; GERALD MACHIDA;
‘JOHN RADCLIFFE; DAYTON NAKANEIUA; STATE OF HAWAI'I,
Defendant s-Appellees,
and
JOHN DOES 1-10, Defendants.
mn a
APPEAL FROM THE FIRST CIRCUIT COURT 5
2
AUGUST 24, 2007 »
5
cnn aca, ves bey a
CIRCUIT JUDGE MARKS, IN PLACE OF LEVINSON, J.,
WITH MOON, C.J., CONCURRING SEPARATELY
OPINION OF THE COURT BY DUFFY, J.
Plaintiffs-Appellante Gail Awakuni, Janis Bush, Diane
Kellet, Mona Stevenson, Sue Stock, Nancy Teruya, and Raymond
uyeno, for themselves and all other similarly situated employees
Plaintiffs}, appeal from the February 24, 2005
[hereinate:
final Judgment of the Circuit Court of the First Circuit, the
oats
'* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
Honorable Gary W.B. Chang presiding, which granted sunmary
8, the trustees of the
judgment in favor of Defendants-Appell
Hawai" Employer-Union Benefits Trust Fund (EUTF), Bob Avana,
harold Decosta, Mark Recktenwald, Katherine Thomason, Kathleen
Watanabe, Willard Miyake, Joan Lewis, Gerald Machida, John
Radcliffe, and Dayton Nakaneiua [hereinafter, EUTF Board or
Trustees), and the State of Hawai'i (hereinafter, collectively
with the Trustees, Defendants}. Based on the following, we
affirm the final judgnent of the circuit court.
1. BACKGROUND
A. Background on the BUTE
‘The EUTF was established to provide a single health
benefits delivery system for State and county employees,
retirees, and their dependents. Hawai'i Revised Statutes (HRS)
§§ 87A~15, 31 (Supp. 2001).! It replaced the Hawai'i Public
Employees Health Fund (PEHF) on July 1, 2003. Act 88 of the 2001
Session Laws of Hawai'i, partially codified as HRS chapter &7A,
+ RS § G7A-15 states that “(e)he Board shall administer and carry out
‘the purpose of the fund. Healeh and other benefit plans shell be provised st
fa cont affordable to both the public employers and the public employees.”
SRS § 67A-31 states in relevant part that “(t]he fund shall be used to
provide enployee-beneficiaries and dependent beneficiaries with health and
Other benefit plans, end to pay administrative and other expenses of the
fond.” HRS § 87A-1 defines "Exployee-beneficiary” to include [a] retired
nenber of the employees’ retirenent system; the county pension systen; or the
Police, flrefighters, or bandsnen pension systen of the State or county” as
Nell sg “(ala employee who retired prior to 1962 -
2
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **
sets forth the statutes governing the EUTF. It is administered
by a board of ten trustees, appointed by the governor, who all
serve without compensation. HRS $§ 87A-5, -8 (Supp. 2001).?
Five trustees represent the enployee-beneficiaries and five
trustees represent public employers. HRS § 87A-5.? The BUTF
Trustees were responsible for, inter alia, establishing the
health benefits plan or plans. HRS § 87A-16 (Supp. 2001).*
As mandated by HRS § 87A-25(4) (Supp. 2001),* the EUTF
procured and maintained fiduciary liability insurance and public
officiale and employment practices liability insurance. The EUTF
is the named insured under the following policies underwritten by
+ HRS § 87A-§ provides, in relevant part, that “(t}he board of trustees
of the enployer-union health benefits trust fund shall consist of ten trustees
Spointed by the governor . «+ .” HRS § €7A-5 was amended ip 2005, but such
Shendnente are aot pertinent to this case.
HRS § 87A+8 states that “[e]ach trustee shall serve without
compensation, but the trustees may be reinburse from the fund for any
Fensonable expenses incsrred in carrying out the purposes of the fund.”
) the relevant portions of HRS § 87A-S. sta
‘rustees, one of whon shall rep
that the Board shall
nt retirees, to
(a) The board shell establish the health benefits plan
or plans, which shall be exenpt from the minimum group
Fequirenents of chapter 431.
(] The board may contract for health benefits plans
or provide health benefits through # noninsured schedule of
benefits.
+ uns § €1A-25 provides that “[t)he board shall: . . . . (4) Procure
Higociary Liability insvrance and error and omissions coversge for sll
trustees se =
3
+8 FOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER ***
National Union Fire Insurance Company of Pittsbursh,
Pennsylvania: (1) a Public Officials and Employment Practices
Liability Policy in the amount of $3,000,000.00; and (2) a
Fiduciary Liability Policy in the amount of $10,000,000.00. The
policies cover the EUTF and its trustees, and the second policy
also extends coverage to the State.
8. Deciding on a Rate Structure
The EUTF Trustees began meeting in January 2002. on
June 28, 2002, Garner Consulting (hereinafter, Garner] was hired
as a benefits plan consultant, and was asked to determine the
economic effect that various rate structures would have on future
participants in the EUTF plans. Garner determined that at that
time, United Public Workers utilized a four-tier plan -- i.e,
one premium rate for single employees (individual rate), a second
premium rate for employees with one dependent, a third rate for
employees with two dependents, and a family rate for employees
with three or more dependents -- and the Hawai'i Government
Employees Association utilized a three-tier plan -~ ive.
individual rate, individual plus one dependent rate, and family
rate for employees with two or more dependents. Two-tier rate
structures ~~ j.e., an individual rate and a family rate for
employees with one or more dependents -- were being used by the
PEHF, the Hawai"i State Teachers’ Association, the University of
++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Hawai'i Professional Assembly, the State of Hawai'i Organization
of Police Officers, and the Hawai'i Fize Fighters Association
(HFFA). Garner prepared charts for the Board, comparing the
effects of inplenenting a two-tier structure as opposed to three-
or four-tier structures. The charts showed that the smallest
percentage of exployees would be adversely affected by the EUTF
using plans with a two-tier rate structure, i.e., approximately
92% would have the same or lower rates and 9% would have higher
rates.
on or about August 8, 2002, the EUTF Board sent to the
public employers and unions a “Sunmary of Health Benefits Plan”
for their review and comment. ‘The sunmary stated that the EUTF
benefits committee had reconnended that the EUTF adopt a two-tier
rote structure. In response, it appears that only the County of
Maui expressed concern over the use of a two-tier structure.
Just prior to iesuing the request for propo:
is, the
Board again considered the rate structure issue at a Board
meeting. While at least one Trustee argued that a four-tier
structure would be more equitable, other Trustees relied on the
chart prepared by Garner and asserted, in relevant part, that:
(1) a four-tier structure would increase the costs for those
least able to afford it,
, families with two or more
dependents; (2) it would be “nore prudent to stick with the
#** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
current 2-tier structure” because collective bargaining was
“geared to a 2-tier structure” and “a move to a é-tier structure
may change the way collective bargaining is done”; and (3) “all
plans are subject to inequity? large families are subsidized by
others, high users are subsidized by lower users, etc.”
After public meetings and consultation with public
employers and unions, the EU?F Trustees established health
benefits plans, effective July 1, 2003, with two tiers of
insurance prenium rates.
In or about April 2003, collective bargaining
agreenents setting forth public employer contributions to the
EUTF health benefits plans were reached. The agreements provided
for employer contributions on a two-tier basis.
In or about Septenber 2003, the EUTF Board requested
Garner to determine the effect of moving to a three- or four-tier
rate structure, Garner requested proposed rates from the
insurance carriers providing the EUTF health plans. One or more
of the insurance carriers advised Garner that the proposed rates
for three or four-tier plans were dependent on all public
employers and public sector unions agreeing to the same rate
structure. If some chose different rate structures, the proposed
rates would be different. Further, the current two-tier rates
could also change if some public sector unions wanted to
+++ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***
implement three or four-tier plans for their menbers.
Additionally, the Board sent a letter to the public employers and
unions to see if they were interested in moving to a three- or
four-tier rate structure. Only HFFA responded, stating that the
existing two-tier structure should be maintained because “the
unions have negotiated contribution rates based on the two-tier
structure.”
procedural History
on February 26, 2004, Plaintiffs, State and County
employees with only one dependent whose health insurance is
obtained through the BUTF,* brought the instant suit,’ on behalf
of thenselves and others similarly situated, against Defendants
alleging, inter alia, thai
only two tiers of insurance premium rates rather than three or
(1) the BUTF Trustees, by offering
four tiers of premium rates, breached their fiduciary duties of
loyalty and impartiality owed to all the beneficiaries of the
EUTF because the two-tier plan overcharges and unfairly
discriminates against two-member famili
7 (2) the State was
« plaintéffs Awakuni and Kellet apparently did not have a dependent
whose health insurance was cbteined through the EUTF, but "Joined
Disineiefs beceose they wished to nave the option to purchase insurance
through the EUIF at a Feascnable and proper cost for themselves and another
eligible insured.”
> the complaint was initially filed en December 18, 2003 against the
‘trostees. the First Anendes Complaint was filed on January 27, 2004 and adéed
The State asa defendant. The Second Amended Complaint was filed on February
26, 2008.
2** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTEI
vicariously liable for the actions of the Trustees; and (3) the
State was directly liable for negligently training and advising
the Trustees with respect to their duties and obligations to the
beneficiaries of the EUTF.
On March 1, 2004, Defendants filed @ “Motion to Dismiss
Complaint or in the Alternative for Sumary Judgment.” The
matter was heard on October 22, 2004. Both parties subsequently
filed supplemental menoranda regarding the discretionary function
exception to the State Tort Liability Act (STLA), HRS chapter
662. By order dated February 18, 2005, the circuit court,
“having found no genuine issue as to any material fact and that
Defendants are entitled to judgment as a matter of law,” granted
Defendants’ motion for sunmary judgment. Final judgment was
entered in favor of Defendants and against Plaintiffs on all
claims on February 24, 2005. On March 17, 2005, Plaintiffs filed
their timely notice of appeal.
on March 27, 2007, Defendants filed a timely motion to
retain oral argument, which this court granted on April 26, 2007.
Oral argument for this case was held on July 11, 2007.
TT, STANDARDS OF REVIEW
A. Summary Judoment
He review the circuit court’s grant or denial of
summary judgment de novo. awe att
Eadaxal Credit union v, Keka, 94 Wawai't 213, 221, 11
‘+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
P.3d 1, 9 (2000). The standard for granting a motion
for sunmary judgnent is settled:
[shunmazy judgnent is eppropriate if the
Pleadings, depositions, answers to
[nterrogatories, and adeissions on file,
together with the affidavits, if any, show that
there ia no genuine itsue as’ to. any material
fact and that the moving party is entitled to
jusament ae a eater of Law. A fact is material
Le proof of thet fact would have the effect of
setablishing or refuting one of the essential
Glenents of a cause of action or defense
acserted by the parties. The evidence nust be
Siewed in the 1ight most favorable to the
Ronvmoving party. In other words, we must view
11 of the evidence and the inferences. drawn
fhereizom in the Light most favorable to the
Party opposing the notion.
Jd, (citetions and internel quotetion marks cnittea) .
pv. City and 98 Hawai'i 233, 244-45,
G7 #36 S68, 359-60 {2002} Iaecond alteration in original.
Kay v. City & County of Honolulu, 104 Hawai'i 468, 473-74, 92
P.3d 477, 482-83 (2004). This court has further explained the
burdens of the moving and non-moving parties on summary judgment
as follows:
The burden ts on the party moving for summary judgment
moving party] £2 show the sbeence of any genvine isaue ee
fo all neteria facts, which, under applicable principles of
substantive lov, entities the moving party to judgment as &
Batter of law. This Burden has two components.
First, the moving party has the burden of producing
support fer ite claim that: (1) no genuine iseue of
aterisl fact existe with respect to the essentisl elements
Of the claim oF defense which the motion seeks to establish
Of which the motion questions; and (2) based on the
Sndisputed facts, it is entitied to summary judgment as a
matter of law. Only when the moving party satisfies ite
Initial burden of production dees the burden shift to the
Ronenoving party te respond to the motion for sunnary
Josgment and denonstrate specific facts, as opposed to
Geperei allegations, that present a genuine insue worthy of
trisl.
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Second, the moving party bears the ultimate burden of
persuasion. ‘This burden slwaye remains with the moving
party and requires the moving party to convince the court
that no genuine issue cf material fact exists and that the
Roving pert 1s entitles to summary judgeent as a matter of
Tow.
Exench v. Hawaii Pizza Hut, Inc., 105 Hawai‘ 462, 470, 99 P.3d
1046, 1084 (2004) (quoting GECC Fin. Corp. v. Jaffarian, 79
Hawai'i $16, $21, 904 P.2d $30, $35 (App. 1995)).
B. Statutory Interpretation
Statutory interpretation is “a question of law
reviewable de novo.” State vs Levi, 102 Hawai'i 262, 265, 75
P.3d 1173, 1176 (2003) (quoting State v. Arceo, 64 Hawai'i 1, 10,
928 P.2d 643, 852 (1986)). 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 an
rambiguous, our sole duty is to give effect to ite
plain and obvious meaning, Third, implicit in the
fsck of statutory conetruction ie’ our foremost
obligation to sacertain and give effect to the
intention of the legislature, which is to be obtained
prinarily from the language contained in the statute
Eieelf. Fourth, when chefs is doubt, doubleness of
feaning, of indistinctiveness of uncertainty of an
Supression used in a statute, an anbiguity exists,
And fifth, in construing an ambiguous statute, the
eaning of the ambiguous words may be sought by
Guanining the context, with which the eabigsous words,
Phrases, and sentences nay be compared, in order to
Sscertain their true meaning
Peterson v, Hawaii Elec. Light Co., Inc., 85 Hawai'i 322, 327-28,
944 P.2d 1265, 1270-71 (1997), superseded on other grounds by HRS
10
FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER *
§ 269-15.5 (Supp. 1999) (block quotation format, brackets,
citations, and quotation marks omitted).
TIT. pEScUSSION
A. The EUTF Trustees Did Not Abuse Their Discretion in Adopting
a Tuo-Tier Rate Structure,
Plaintiffs claim that: (1) the EUTF Trustees have the
fiduciary duties of conmon law trustees; and (2) the EUTF
Trustees’ violated their fiduciary duty of impartiality in
adopting a two-tier rate structure. Defendants reply that: (1)
“the use of general truat language does not impose the full
panoply of common law fiduciary duties: (2) the Trustees were
granted broad discretion to design and establish the BUTF plans,
and such discretion is not subject to court control except to
prevent abuse thereof; and (3) the BUTF Trustees did not abuse
their discretion in selecting and maintaining @ two-tier rate
structure. We agree with Defendants.
1. Whether the EUTF Trustees owe common law fiduciary
duties to Plaintiffs
Although HRS chapter 87A utilizes general trust
terminology, it is clear that the EUTF is not a typical common
law trust such that the Trustees are subject to all of the common
law fiduciary duties. For example, under the common law, a
trustee owes a duty of loyalty to the beneficiaries
administer the trust solely in the interest of the beneficiaries.
u
FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
See Restatenent (Third) of Trusts: Prudent Investor Rule §
170(1) (“The trustee is under a duty to administer the trust
solely in the interest of the beneficiaries.”). In the case of
the EUTF, however, the design and establishment of health
benefits plans is not to be done solely in the interests of the
employee-beneficiaries. Rather, according to HRS § 87A-5 and ~
15, supra notes 2 4 4, half of the BUTF trustees represent the
public employers, and the health benefits plans are to be
provided at a cost affordable to both the public employers and
the public employees. Further, the legislative history of
chapter 87A states that one of the main purposes of creating the
EUTF was to establish 2 single health benefits delivery system to
make the cost of insurance affordable for the State. Conf. Comm.
Rep. No. 124, in 2001 House Journal, at 1097-98. Thus, HRS
chapter 87A’s use of general trust language does not impose upon
the EUIF Trustees all of the conmon law fiduciary duties.
This conclusion is supported by the Court of Appeals of
the Ninth Circuit's decision in Price v, Hawai'i, 921 F.2d 950,
955-56 (9th Cir, 1990). Therein, the Ninth Circuit held that the
use of the term “public trust” in section 5(f) of the Hawai'i
Admission Act did not subject the State to all aspects of common
Jaw trust duties. ‘The court reasoned:
[itjothing in that state
the compact agreed that
nt indicates that the parts
provisions of the common
2
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trusts would manacle the State as it attempted to deal with
the vast quantity of land conveyed to it for the rasher
broad, although fot all-enconpasaing, list of public
purposes set forth in section 5(f)-
921 F.2d at 955. Here, as in Price, the use of trust terminology
does not subject the EUTF Trustees to all provisions of the
common law of trusts.
Furthermore, as the Restatement (Third) of Trusts § 1,
emt. a(1) state:
Several bodies of state and federal legislation
‘of charitable, public, or pension
iy oF impliedly
incorporate rules of the general trust law that is the
subject of this Restatement. See Reporter's Notes. See
1s0 § 90, Connent = (Restatenent Third, Trusts (Prodent
Investor Rule) § 227, Comment al; and Reporter's General
$30 (id. $227). See also Uniform Managenent of
Institutional funds Act, briefly discussed in the Reporter's
Notes cn § 67.
‘The principles of this Restatement are generally
appropriate to those statutory Bodies of rules, both by
anslogy and insofar as those fules expressly of impliedly
Incorporate general principles of trust law.
Seehis Restatement except as Similar circusstances are
Faken into account in the elaboration of general trust-lax
prinespl
(Emphasis added.) It is therefore apparent that, rather than
relying entirely on the common law of trusts, we must take into
consideration the “[s]pecific provisions and special
circunstances” of the EUTF, as expressed in the statutory
Language of HRS chapter 87A and its legislative history, in
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determining how to review the Trustees’ decision to adopt a two-
tier rate structure,
2. The Trustees’ decision to adopt a two-tier rate
structure is subject to a review for an abuse of
discretion.
HRS chapter 87A does not expressly provide whether the
EUTF Trustees owe to the employee-beneficiaries the connon law
fiduciary duty of impartiality in determining the rate structure
of the health benefits plan. According to Plaintiffs, this
silence indicates that the fiduciary duty of impartiality applies
to the Trustees because “[nJothing in Chapter 87A modifies the
common law duties of trustees, or suggests that the EUTF trustees
wore vested with discretion to ignore or override their fiduciary
duty of impartiality. In fact, the word ‘discretion’ appears
nowhere in the text of Chapter 87A."* Defendants reply that “(al
+ Plaintiffs also allege thet the statute's silence with respect to the
Trustess? fiduciary duties indicates that the legislature intended to. inpos
on the Trvstees all of the conmon law fiduciary duties, arguing thar “(ejhere
a statute creates a statutory trust relationship, ‘{eourts) must infer that
[che legislature] intended to inpose on trustees traditional fiduciary duties
uniess [the legislature] hes unequivocally expressed an intent to the
contrary."* (Emphases in original.) (Quoting cobell v. Norton, 263 F. Supp.
aalets is (o.2-€-"2002)" sgchted in sare on ssher arastde by 562 F.20' een,
(0.C, clr. 2004).) Plaintiffs misconstrue the court's decision in Cabell.
‘The issue therein was whetner the 1994 Indian Trust Fund Nanagenent Reform Act
altered the nature or scope of the fiduciary duties =~ described as "the ‘most
exacting fiduciary standards’ of the common law" -- already cued by the
governaent to individuel indian Money (IM) trust beneficieries. Cabell, 263
Fr'Supp. 24 at 144-45, The court seated:
Enactnent of the Indian Trust Fund Management Reform Act in
1554 did not alter the nature or scope of the fiduciary
duties owed by the government to TIN trust beneficsari
Rather, by its very terms the 1994 Act identified @ portion
(continued...)
u
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"1 REPORTS AND PACIFIC REPORTER ***
grant of discretionary authority does not hinge on incantations
of the word ‘discretion’ or any other magical word.” (Citing
Block v, Pitney Bowes, Inc., 952 F.2d 1450, 1453 (D.C. Cir.
1992).). We agree with Defendants, Although the text of chapter
878 does not use the word “discretion” in requiring the Board to
decide upon the structure of the health benefits plan, the
legislature clearly intended that the Board have broad discretion
in its design. ‘Therefore, the Trustees’ decision to adopt 2 two-
tier structure is reviewed for an abuse of discretion.
This court has recognized that “[w]here discretion is
conferred upon a trustee with respect to the exercise of a power,
its exercise is not subject to interference by the court except
to prevent an abuse by the trustee of his discretion.” Miller v
continued)
Of the government's specific obligations and created
Sdditicnsl mesns te ensure that the obligations would be
Gorriea outs indeed, the 1994 Act explicitly reaffirmed the
Gnterior Secretary's’ obligation to fulfill the "trust
Hesponsibilities of the United States.” From this express
lansuace, we must infer chat Congress intended to innose on
rustese traditions) ‘iduciary duties unless Conaress Tas
nequisocsily expresied an intent to the conixary.
Ld, at 145 (emphasis added). then read in the context of the case, it is
Hearent that the language quoted by Plaintiffs was intended to convey that
the Ace dig not alter the imposition of traditional fiduciary doties on the
trustees ‘Thos, Gobel is clearly inapplicable here. Rathe!, Plaintifea’
Citation to Branch v White, which states that “(t]he extent of the duties of
G trustee depends prinerily upon the terms of the trust,” 239 A.2d 665, 671
(weg. Super. Ce. ABp- Div. 1968] (citing 2 Scott, Trusts § 164 at 1254" (3d ed.
1963}, presents a more tenable contention. Sea’alag Restatenent (Thirc) of
trusts’ g'¢ omt. g (eteting thet the tems of a statutory trust "are either set
forth in the scatute or are supplied by the default rules of genere trust
Itw'|. “therefore, we aust Lock to the terms of the statute to determine the
paroncters of the EUTF Trustees’ powers and duties.
a
#9 FOR PUBLICATION IN WEST'S HAWAF REPORTS ANI
REPORTER
rt an Bank, 61 Haw. 346, 351, 604 P.2d 39, 43 (1980)
(citing Dowsett v. Hawaiian Trust Co., 47 Haw. 577, 581, 393 P.2d
89, 93 (1964); Restatement (Second) of Trusts § 187 (1959).
Here, contrary to Plaintiffs’ contention, it is apparent that the
Trustees were granted discretion with respect to the design of
the health benefits plan rate structure. HRS § @7A-16 provides
that “[t]he Board shall establish the health benefits plan or
plans... ." Chapter 87A does not provide any guidance for the
development of such plans, but only states in HRS § 87A-15 that
the plans “shall be provided at a cost affordable to both the
public employers and the public employees.” By empowering the
Trustees to establish the health benefits plan, the legislature
granted the Trustees discretion in developing the plan. Cf.
Citizens Against Reckless Dev. v, Zoning Bd. of Appeals, 114
Hawai'i 184, 194-95, 159 P.3d 143, 153-54 (2007) ("By empowering
agencies generally with the authority to adopt rules regarding
‘the manner in which declaratory ruling petitions shall be
considered and disposed of, the legislature has granted agencies
discretion with regard to the consideration of declaratory
rvlings.”), The legislative history of chapter @7A strongly
supports this interpretation. The conference committee report
states that “(t)his bill will give the governing boards of the
Trust Fund and the Health Fund, during the transition period,
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complete discretion, authority, and flexibility to devise and
maximize the levele and types of benefits available for public
employees and retirees." Conf. Comm. Rep. No. 124, in 2001 House
Journal, at 1098. Thus, broad discretion was conferred upon the
EUIF Trustees with respect to the structure of the health
benefits plans. As such, the Trustees’ decision to adopt a two-
tier rate structure is subject only to review for an abuse of
discretion. See Miller, 61 Haw. at 351, 604 P.2d at 43.
3. The Trustees did not abuse the broad discretion they
were granted to devise the structure of the health
benefits plan.
Plaintiffs contend thet even if the Trustees’ decision
is reviewed for an abuse of discretion, the Trustees abused this
discretion because “the violation of a legal duty or principle,
in this case the duty of impartiality, would go outside the
bounds of reasonable judgment and discretion.” (Citing 3 Scott
on Trusts § 187 (4th ed. 2001).) We disagree that the Trust
abused thelr discretion in adopting the two-tier rate structure.
‘This court has established that “[a]n abuse of
discretion occurs when the decisionmaker ‘exceeds the bounds of
reason or disregards rules or principles of law or practice to
the substantial detriment of a party.’” In re Water Use Permit
Applications, 94 Hawai" 97, 183, 9 P.3d 409, 495 (2000) (quoting
Bank of Hawaii v. Kunimote, 91 Hawai'i 372, 387, 984 P.2d 1198,
”
2** FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER ***
1213 (1999)). Even assuming, arguende, thet the Trustees’
decision was subject to a duty of impartiality, the Trustees did
not abuse their discretion in adopting a two-tier rate structure.
The Restatenent (Third) of Trusts § 79, discussing the
duty of impartiality, states:
(2) & trustee has a cuty to scminieter the trust in 0
manner thet is impartial with respect to the varloue
Beneficiaries of the trust, requiring that:
ip investing, protecting, and éistributing
the trust estate, and in other adniniserative
Functions, ‘the trustee mist ect inpartially and with
ue regard for the diverse beneficial ini
created by the terns of the trust
Here, by virtue of the terms and purpose of the EUTF, the
Trustees could not treat every beneficiary equally. Any plan
that the Trustees chose could not have pleased all of the
beneficiaries. For example, had the Board chosen to adopt @
three-tier structure, those employees who had two dependents
could have argued that the three-tier structure was inequitable
and that a four-tier structure would be more equitable. In turn,
had the Board adopted a four-tier structure, those employees who
had three dependents could have argued that a five-tier structure
would be more equitable. Indeed, as the conment to the
Restatement notes, “[i]t would be overly simplistic, and
therefore misleading, to equate impartiality with some concept of
‘equality’ of treatment or concern -- that is, to assume that the
interests of all beneficiaries have the sane priority and are
1
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entitled to the same weight in the trustee’s balancing of those
interests.” Restatement (Third) Trusts § 79 cmt. b. The conment
goes on to explain:
It 4s not only appropriate but required by the duty of
impartiality that 2 trustee's treatsent of beneficiarie:
lana the belancing of their competing interests, reascnat
reflect any preferences and priorities that are discern:
from the verme (§ 4), purposes, and circunstances of the
Erust and from the nature and terns of the beneficial
Here, in deciding on a rate structure, the Trustees were required
to not only balance the competing interests of the public
employers and the different groups of enployee-beneficiaries, but
also had to consider the effects that the chosen structure would
have on the employee-beneficiaries as a whole, including the
impact their decision would have on collective bargaining, As
recognized in Hearst vs Ganzi, “a trustee must act impartially
with respect to all beneficiaries, doing his or her best for the
entire trust ag a whole.” 145 Cal. App. 4th 1195, 52 Cal. Rptr.
3d 473, 481 (2006) (quoting 76 Am. Jur. 2d Trusts § 359 (2005)).
Even assuming, arquende, that a four-tier structure would have
been the most equitable choice if collective bargaining and the
effects of changing from previous rate structures were not at
issue, the Trustees were not operating in such a vacuum. As
mentioned above, in discussing which rate structure to adopt, the
‘Trustees considered the rate structures from which the employees
would be transferring -- as set forth in Section 1.B, supra, five
8
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unions had two-tier structures, one union had a three-tier
structure, and only one union had a four-tier structure -- and
expressed concern regarding the impact the change to a three- or
four-tier structure would have on the collective bargaining
process, which was geared toward a two-tier structure. The
Trustees also determined that a two-tier structure would have a
negative impact on the smallest percentage of EUIF participants.
Defendants clearly satisfied their burden of producing evidence
that the Trustees acted properly and with the terns and purpose
of the BUIF in ming. Plaintiffs, however, failed to produce
specific facts showing that the Trustees abused their discretion.
Rather, Plaintiffs merely rely on their repeated argument that 2
two-tier system is inherently inequitable. Accordingly, there is
no genuine issue of material fact for trial regarding whether the
‘Trustees abused their discretion in adopting a two-tier rate
structure, and the circuit court did not err in avarding summary
judgnent in favor of Defendants. We discuss Plaintiffs’
remaining arguments in turn.
The BUTE Trustees Are Immune from Suit Under HRS § 26-
35.5(b) (1993) Because Thev Are Members of a State Board and
‘There Here No Genuine Issues of Material Fact as to Whether
rustes of with an Impri i
Deciding to Adopt a Two-Tier Rate Structure,
Plaintiffs argue that the statutory immunity from civil
damages under HRS § 26-35.5(b) does not justify the dismissal of
20
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Plaintiffs! clains against the individual Trustees because: (2)
RS § 67A-25(4) mandated a waiver of immunity: (2) the Trustees
were not “nenbers” of a “state board” as those terms are used in
HRS § 26-35.5; and (3) there are genuine issues of material fact
regarding whether the Trustees acted with a malicious or improper
purpose. Defendants maintain that the Trustees are immune from
civil damages under HRS § 26-35.5(b) because they are clearly
cnembers” of a “state board” and their actions were not for a
malicious or improper purpose. We agree with Defendents.
HRS § 26-35.5, entitled “Members of boards and
conmissicns; immunity from or indemnification for civil
Liability: defense of members,” provides, in relevant part:
12) For purposes of this section, “nenber” means eny
person whe is appointed, in accordance with the lav, to
Eerve on a temporary er permanent state boerd, .
established by Law -
(b) Notwithstanding ery law to the contrary, po member
be est
wots fi Tai se
‘Giuses by or cesultina fron the nenber's pertorsina of
et 3a which te oe 3
SRUSRSE ES ibictated, unless tne menber acted with
malicious or improper Purpose, except when the plaintiff in
2 civii action is the State.
1. HRS § 87A-25(4) does not mandate a waiver of HRS $ 26-
35.5(b) immunity.
Plaintiffs contend that “[e]ven if the EUTF trustees
may qualify for sovereign or other immunity (i.e., pursuant to
HRS § 26-35.5(b)), the evident intention of HRS § 87A-25(4) was
2** FOR PUBL
ATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
to mandate a waiver of inmunity as to fiduciary liability, errors
and omissions.” Plaintiffs, however, do not provide any support
for their assertion, Defendants, for their part, assert that the
legislature's insurance requizenent was not intended to waive
immunity, but vas intended to cover claims against the State and
the BUTE’ s Trustees by EUTF employee-beneficiaries (many of whom
reside in other states and foreign countries) in federal court,
other state courts, or foreign courts, where the Trustees are not
immune. HRS § 87A-25(4), supra note §, requires the Trustees to
procure insurance; it says nothing of waiving immunity.
Accordingly, Plaintiffs’ contention that HRS § 26-35.5(b)
immunity is waived is without merit.
2. The Trustees are "nombers” of a “state board” pursuant
to HRS § 26-35.5.
Plaintiffs support their assertion that the EUTF Board
is not a “state board” as that term is used in HRS § 26-35.5 with
the following reasons: (1) the EUTF Trustees do not take an oath
of office (citing Haw. Const. art. XVI, § 4°); (2) they do not
* aw. Const. art. xv1, § 4 provides:
ALL eligible public officers, before entering upon the
duties of their respective offices, shall take and subscribe
to the following oath or atfirmaticn: “I do sclenniy swear
(er affirm) thet Twill support and defend the Constitarien
of the United States, and the Constitution of the state of
Hevali, and that 1 will faithfully discharge my duties es
= to best of my ability." As used in this section,
“eligible public officers” means the governor, the
(continved. .
2
FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER ***
sit ex officio by virtue of their position with any state agency
(3) they are not elected (citing HRS § B7A~5); (4) their
appointment is not subject to the advice and consent of the
Senate (citing HAS § 87A~5, which exempts Trustees from
application of HAS § 26-34(a) (1993)'#); (5) although they are
appointed by the governor, they do not serve at her pleasure, and
she may not remove them from office (citing HRS § 87A~5, which
exempts Trustees from application of HRS § 26-34(¢)"); (6) they
are not bound by the State Procurement Code, HRS chapter 103D
(citing HRS S§ 87A-18(c), -20, -24 (Supp. 2003)"*); (7) they are
*(..seontinued)
(emphasis added.) (Ellipsis in original.)
8 uRS § 26-24 (a) states that “[t]he members of each board and
conmission eseablished by law shall be nominated ang, by and with the advice
Sho censent of the senate, appointed by the governor.”
1 Rg § 26-24(¢) provides that “(t]he governor may remove or suspend
for cause any rember of any board or coamission after due notice and public
hearing.”
© ng § 87A10(c} states that “[w]ithout regard to chapter 103D, the
boerd may contract with a carrier to provide fully insured benefits or with a
Ciitd-pafty scuinistrator to aqminister self-insured benefits.”
{5 § 87-20, which wos repealed in 2004, stated that “[p]rocurenent of
a carrie® or third-party adninistrator for any benefits plan shall be exenpt
from chapter 1030.”
BRS § 874-24 states:
In addition to the poner to administer the fund, the board may:
(continced.-.)
2
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TL EOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER ***_
not bound by, nor are their actions reviewable under, the state
Administrative Procedures Act, HRS chapter 91 (citing HRS §§ 67A-
19, -26 (Supp. 2003)"; (8) they are not subject to any
8 (. .seontinved)
(2) "Collect, receive, deposit, and withdraw money on
behalf of the fond:
(2) Tnvest moneys in the sane manner specified in section
88-1192) (A), (1) (BD, 11 (Chy (2s Cds aly Udo (ey
sell, assign, transfer, or dispose of
for other investments of the fund, a
well as the proceeds of those investments anc ay’
snoney belonging £0 the fond?
(4) -Rppolnt, and at pleacure dismiss, an adninistretor and
other fund staff. The aduinistrator and staff shell
be exenpt from chapter Je and shall serve under and at
the plessure of the boards
(5) Make: paysents of periodic chergi
Feaschable expenses incurred in
of the funds
for the performance of financial audits of
the fund and clains audits of ite inevrance carrier
(7) Retain auditors, actuaries, davestment fens and
managers, benefit plan consultants, or other
Professional advisors to carry out the purposes of
this chapter:
‘ablish health benefits plan and cng-term care
benefits plan rates that include administrative snd
‘other expenses necessary to effectuate the purpos
the fund? and
(8) Require any department, agency, or enployee of the
State or counties to furnish information to the board
to carry out the purposes of this chapter.
and pay for
sarrying out the
© BRS § 878-29 provides in relevant part thet “[t)he board ney
determine eligibility for part-time, tesporary, and seasonal. or casual
fenployees by rules exempt from chapter 31 az provided in section €18-26."
ARS § 87A-26 states:
(a) The board may adopt rules for the purposes of
this chapter. "Rules shell be adopted without regere to
chapter 91. "Role-naking procedures shell be adopted by the
bosrd and shail minimally’ provide for?
(2) "Consultation with employers and affected
employee organizations with regerd to proposed
rules?
(2) Adoption of roles at open meetings that permit
(continued...)
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++ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER
executive department; (9) they do not deal with public assets or
public funds (citing HRS § 87A-30 (Supp. 2003)%); (10) they are
accountable only to their beneficiaries and not to the public at
large or any public official (citing HRS §§ 87A-5, ~26, -30, -31
(Supp. 2003)"); and (11) they are insured at the expense of
their beneficiaries (citing HRS § 87A-31(a)). Plaintiffs argue
that the Board is, therefore, more similar to a private or non-
profit trust than to a “state board.” Plaintiffs, however, do
8 (..-continuea)
the attendance of any interested person:
(3) Approval of rules by the governor! and
{i} Filing of roles with the Iieutenant. governor.
(D) The Board ay also issue policies, standards,
and procedures consistent with its rules.
fe). The board ay adopt rules, without regard to
chapte! 91, governing aispite resolution procedures in the
Event of inpasee in decision-making; provided that the
Fules shall be adopted with the concurrence of six trus
Rs § 67A-30 stated:
‘There is established outside the state treasury, a trust
Fund te be known os the “Hawaii Enployer-Unien Health
Benefits Trost Fund". The fund shall consist of
Contributions, interest, income, dividends, refunds, rate
Credits, and other retulns.” The fund shall be under the
control of the board and placed under the departnent of
Budget and finance for sdministrative purposes.
& Rs § @7A-21 provided, in relevant part:
a) the fund shall be used to provide
enployee-beneficiaries snd dependent“beneficiaries with
feclth and other benefit plane, and to pay administrative
and other expenses of the’ fund
(B) The fund, including any earnings on investments,
and rate credits of reimbursements from any carrier or
Geifcinsured plan end any earning of interest derived
therefrom, may be used Co stabilize health and other benefit
plan rete: provided that the approval of the governor end
Che Legisieture shall be necessary to fond administrative
and obser expenses necessary to effectuate these purposes.
3
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not cite to any statutes or caselaw stating that those
characteristics, if true, indicate that the EUTF Board is not @
“state board” for purposes of HAS § 26-35.5.
Defendants respond that the following characteristics
support their contention that the BUF Board is a “state board”:
(1) it was created by, and its methods of operation are
controlled by, state statute, HAS chapter 87A; (2) it is attached
to the department of budget and finance, which means its
communications with the legislature, its budget, and its hiring
and purchases must go through that department, (citing ERS $5
87A-26 to -35)7 (3) it is subject to the public meeting and
government record requirements of HRS chapters 92, Public Agency
Meetings and Records, and 92F, Uniform Information Practices Acti
(4) aside from rulemaking, it is subject to HRS chapter 91; (5)
HRS § 87A-26, supra note 15, sets the EUTF’s rulemaking procedure
which requires the EUTF’s rules to be approved by the governor:
(6) although the EUTF initially had a limited exemption from
public procurenent laws regarding contracts with insurance
carriers, third-party administrators, and professional
consultants, such exemption was eliminated in 2004 by Act 216,
2004 Haw. Sess. L. Act 216 § 15 at 993-947 (7) the EUTF serves a
th and other benefit
public purpose, i,e,, the provision of h
plans for public employees, retirees, and their dependents; (8)
26
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its administrative expenses, which include the cost of its
.ce, are paid for by the public employers; and (9) its
funding largely cones from public employer contributions, which
‘are general funds appropriated as cost items by the legislature,
(citing HRS § 87A-32 (Supp. 2003) and HRS § 88-10(b) (Supp.
2003)). Defendants, however, also do not cite to any statutes
or caselaw supporting their contention that these
characteristics, if true, evidence a “state board” within the
meaning of HRS § 26-35.5. Nevertheless, we find Defendants’
MRS § 67A-32 provides, in relevant part:
(a) The State, through the department of budget and
finance, and the counties, ‘chrough thelr respective
Gepartnents of finence, shall pay to the fund a monthly
Contribution equal to the amount establishes under chapter
Soc or specified in the applicsble public sector collective
bargaining agreements, whichever is appropriate, for each of
thelr respective enployee-beneficiaries and
Snployee-beneficiaries with dependent-beneficiaries, which
Shell be used toward the payment of costs of @ health
benefits plan.
Rs § €9-10(b) st
ALL cost Stens shall be subject to appropriations by
tthe appropriate legislative bodies. The employer shall
Suoait within ten gaye of the date on which the agreement is
fatified by the employees concerned all cost itens contained
therein to the appropriate legislative bodies, except that
ifany cost itens require appropriation by the state
legislature and it is not in session at the tine, the cost
ifdns shall be subaitved for inclusion in the governor's
next operating budget within ten days after the date on
hich the agreenent is ratified. The state legislature or
tthe legislative bosies of the counties acting in concert, as
tthe case tay be, may approve oF reject the cost itens
Susmitted to thom, asa whole. If the state legislature or
the legislative body of any county rejects any of the cost
{tens submitted to them, ail cost items subsitted shall be
returned 0 the parties for further bargaining.
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FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER
position more persuasive. Indeed, the legislative history of HRS
§ 26-35.5(b) supports Defendants’ position inasmuch as it states
that the statute was intended to encourage people such as the
Trustees to contribute their knowledge and experience without
pay, in the community interest, by protecting them from civil
Liabilit:
The purpose of this Bill is. . . to exempt fron civil
Lsebility members of state Boards and Commiseions who serve
without Pay, unless the menber acte with 2 malicioss
Purpose, in bad faith, or a wilful or wanton manner
Your Connittee supports protecting “volunteer” boards
and commission menbers fron frivolous suits, suits extended
fas harassnent, and nore inportantly, suits which may be
intended to intimidate these persons to influence policies
and decisions. Such protection she ural
ot aed promote Bo Seliberate
Sen. Stand. Comm. Rep. No. 538-84, in 1984 Senate Journal at 1267
(emphasis added). The EUTF Trustees serve on the EUTF Board
without pay for the purpose of contributing to the community
interest, namely, designing and administering health benefits
plans at a cost affordable to both public employers and
employees. It is clear that HRS § 26-35.5(b) is intended to
protect them. Accordingly, the EUTF Trustees are “members” of a
“state board” for purposes of HRS § 26-35.5, and thus, are
entitled to immunity from civil suit, unless they acted with
malicious intent or an improper purpose, as will next be
discussed.
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3. ‘There are no genuine issues of material fact as to
whether the Trustees acted with a malicious or improper
purpose
Plaintiffs next argue that there is a question of fact
nether the Trustees acted for a “malicious or improper purpose,”
which would take them outside the immunity provided by HRS $ 26-
35.5(b). Plaintiffs contend that, pursuant to Touse v, State, 64
Hawai'i 624, 647 P.2d 696 (1982), the issue of whether the
trustees acted for a malicious purpose is determined by 2
“reasonable person” test." Defendants respond that the
sreasonable person” test is inapplicable here, and that there is
no evidence that any of the Trustees acted with a malicious or
improper purpose.
in order to understand Touse, it is helpful to examine
Medeiros v. Konds, 55 Haw. 499, 522 P.2d 1269 (1974), which we,
in part, relied upon in Zouse. In Nedeizos, civil service
enployee of the State Department of Taxation brought suit for
damages against the director of the department alleging that the
director had maliciously and wilfully attempted to force the
employee to relinguish his Jeb. Id. at 500, 522 P.2d at 1269-70.
We rejected the view advanced by federal courts that non-judicial
governnental officers are absolutely inmune from tort actions,
Although the Touse Court referred to the test as the “reasonable
nan” test, we refer to the test herein as the “reasonable person” test.
2
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stating that “if an official in exercising his authority is
motivated by malice, and not by an otherwise proper purpose, then
he should not escape liability for the injuries he causes.” Id,
at $01-03, 522 P.2d at 1270-71. We intended, however, “to limit
Liability to only the most guilty of officials by holding
plaintiff to a higher standard of proof than in @ normal tort
case." Id, at 504-05, $22 P.2d at 1272. To this end, we
“allocate(d) to plaintiff the burden of adducing clear and
convincing proof that defendant was motivated by malice and not
by an otherwise proper purpose.” Id, at 505, 522 P.2d at 1272.
Eight years later, we decided Towse. Therein, prison
guards and their wives brought suit against state officials for,
inter alia, defamation in connection with a series of incidents
during a purported “overhaul” of the Hawai'i State Prison.
Towse, 64 Hawai'i at 625, 647 P.2d at 698. In discussing whether
the state officials had been motivated by malice, which would
strip them of their inmunity, we discussed Medeiros’s malice and
improper purpose requirement, noting that “the word malice *has
acquired a plethora of definitions[.]’” Id, at 632, 647 P.2d at
702 (quoting Aku v. Lewis, 52 Haw. 366, 376, 477 P.2d 162, 168
(2970)). In deciding between adopting the constitutionally-based
20
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wactual malice” test!” and the “reasonable person” test, we chose
to apply the latter, which we had previously utilized in Aku and
Russel] v. Am, Guild of Variety artists, $3 Haw. 456, 497 P.2d 40
(1972). According to the “reasonable person” test, “in the
instance where malice is alleged to extinguish a qualified
privilege, defendant is required to act as reasonable [person]
under the circumstances, with due regard to the strength of his
[or her] belief, the grounds that he [or she] has to support it,
and the importance of conveying the information." Touse, 64
Hawai'i at 632-33, 647 P.2d at 703 (quoting Russell, 53 Haw. at
463 n.4, 497 P.2d at 45 n.4 (quoting Prosser, The Law of Torts,
795-96 (4th ed. 1971))) (quotation signals omitted).
Plaintiffs aver that Towse requires this court to apply
a “reasonable person” test to the malice requirement of HRS § 26-
35.5(b). Because Towse is distinguishable, we disagree. Touse
involved state officials’ qualified privilege in a defamation
case. Although we discussed Medeiros in Touse, the rule
enunciated in Towse arose from Russel] and Aku, both of which
were also defamation cases. Indeed, in Aku, we stated that “[iJn
adopting the standard of reasonable care, we conclude that it is
1 We adopted the “actual malice” test in Tagawa vs Maui Pubs Co,
tdi, 43 Hows 695) 427-P.24 79 (1987). Therein, malice vas defined as ‘with
Fnowledge that it'war false or with reckless disregard of whether it was false
eenots dade et 663, (2) P.2d at 84 [quoting New York Times Co. v, Sullivan,
Ste U.S. 25¢y 280 (3968)).
3
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IC REPORTER *
in society’s interest in these circumstances to make defaming
publishers less willing to speak due to the risk of being found
gligent.” §2 Hew. at 378, 477 P.2d at 169. This reasoning
does not apply here. Moreover, in Russell, when this court first
adopted the “reasonable person” test, quoting it from Professor
Prosser, we explicitly recognized in a footnote that Professor
Prosser was addressing hinself directly to the use of the word
malice in the context of the qualified privilege in defamation
cases. 53 Haw. at 463 n.4, 497 P.2d at 45 n.4; gee Prosser, The
Law of Torts, 795-796 (4th ed. 1971) (discussing the definition
of “malice” in chapter 19, entitled “Defamation”). Furthermore,
the language of the test espoused in Touse, quoted from Russe:
(zequiring 2 person to act “with due regard to the strength of
his [or her] belief, the crounds that he [or she] has to support
it, and the importance of conveying the information”), clearly
was intended for purposes of analyzing the qualified privilege in
a claim for defamation, not for immunity pursuant to HRS § 26-
38.5. It is therefore apparent that the “reasonable person” test
was adopted for use in the defamation context.
The legislative history of HRS § 26-35.5, which makes
clear that the legislature did not intend for malice in this
context to be defined by the lower standard of the “reasonable
person” test, bears repeating:
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‘the purpose of this Bill is . . . to exempt trom civil
isebility nenbers of state boards and Comnission who serve
without pay, unless the senber ects with a malicious
forpose, in bad faith, or 2 wilfol of wanton menner.
Your Committee supports protecting “volunteer” boards
and consission nenbers from frivolous suits, suits extended
Sovharacanent, and nore importantly, suits which may be
Sntended to intimidate these persone to influence policies
and decisions. Such protection should encourage more people
iO'contribure thelr valuable knowledge and experience in the
ECununity interest, and promote nore open, deliberate policy
Sha decision meting in xesponse to the general public.
[Yiour Committee amended the bi2] to give “volunteer” board
Ane consiscion nenbere sore immunity; it raised the stangard
from en act with @ malicious purpose, in Ded
PEith or s wilfel or wanton manner to an act. for a
naliclous purpose oF improper porpose
sen, Stand. Comm. Rep. No. $38-84 in 1984 Senate Journal at 1267
(emphasis added).
Accordingly, Zowse and the “reasonable person” test are
inapplicable to this case, and the phrase “malicious or improper
purpose” should be defined in its ordinary and usual sense. See
HRS § 1-14 ("The words of @ 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.”). Black’
Law Dictionary defines “malicious” as “(s]ubstantially certain to
cause injury” and “[w]ithout just cause or excuse.” Black's Lay
Dictionary 977 (8th ed. 2004). “Malice” is defined as “[t]he
intent, without justification or excuse, to commit a wrongful
3
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act[,]" “reckless disregard of the law or of a person's legal
righte[,]" and “[4J11 wills wickedness of heart.” Id. at 976.
With these definitions in mind, we turn to the
evidence. Defendants produced evidence that the Trustees adopted
the two-tier rate structure for the following non-nalicious and
proper reasons:
((20) a two-tier structure would have @ negative inpact on
the smallest percentage of EUTF participants; ({2]) ie would
avoid the potential of increasing costs fer ia:yer faniiies
who were the least likely to be able to afford such
Sneresses: and ({3}) Guring @ period of uncertainty, it was
the most prudent choise to facilitate che collective
Bargaining that would be necessary to fund the EUT health
Benefit plans.
Plaintiffs, however, contend the following demonstrates a
“malicious or improper purpose":
(The trustees] (1) were unaware of the duty of impartiality,
(2) were unaware of the megnitude of the iapact of thert
WHEE Class, (2) chose not to
obtain that data although it was readily availebie, and (4)
sgnored warnings regarding the inequity of the approach te
tlering that they were adeptingis)
Plaintiffs’ assertions, even if true, do not evince malice or an
improper purpose, while Defendants’ contentions provide “Just
cause” for the Trustees’ decision. Plaintiffs do not provide any
evidence that any of the Trustees’ actions were motivated by il
will or an intention to commit, or @ reckless disregard of
conmitting, @ wrongful act against any of the enployee-
beneficiaries. As such, Plaintiffs did not cerry their burden of
demonstrating “specific facts . . . that present a genuine issue
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worthy of trial.” french, 105 Hawai" at 470, 99 P.3d at 1054,
Accordingly, the circuit court did not err in awarding summary
judgment in favor of Defendants.
c. Whether Plaintiffs’ Claims Against tate eres
vereian
Plaintiffs next aver that the circuit court erred in
awarding sunmary judgment in favor of Defendants on the basis of
the State's sovereign immunity because the State expre:
ly waived
Ate immunity pursuant to HRS § 661-11 (1993) and the STLA, HRS
chapter 662." Defendants, for their part, contend that the
state retains its immunity because the discretionary function
exception te the STLA applies and HRS § 661-11 does not apply.
Plaintiffs’ arguments are unavailing.
The EUIF Board is an arm of the State for purposes of
sovereign immunity.
Preliminarily, Plaintiffs argue that the Board is not
an arm of the State and thus, is not entitled to sovereign
Anmunity in the first instance, arguing essentially the same
reasons they expressed in support of their argument that the
Board is not a “state board” for purposes of HRS § 26-35.5, set
1% pefendants mention in passing that breach of fiduciary duty 1s not a
tort claim shut implying chat neither #RS chapter 662 nor ARS § 61-11 would
ReEtyo dhe’ that the State retains its sovereign immunity. This court,
eco thas in the past classifies breach of fiduciary duty as a tort claim.
fees s.dq, TSB Int"D Lid, vs Shimisa Compa, 92 Hawai'i 243, 264, 990 P-2d 713,
Sete tele: TRAMs Ciaine for fraud and breach of fiduciary duty sound in
torts")
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forth in Section 11.8.2, supra. Defendants counter that the
State’s sovereign inmunity covers boards that, like the BUTE, are
attached to executive departments,
Plaintiffs do not cite any statutory authority or
caselaw stating that the characteristics they identified, if
true, aze more persuasive than those identified by Defendants,
see supra Section III.B.2, in the determination of whether the
Board is @ private, rather than a governmental entity.
Defendants, on the other hand, cite to HRS § 26-35(b) (Supp.
2004), which provides that “[e]very board or conmission
established or placed within a principal department for
administrative purposes or subject to the administrative control
or supervision of the head of the department shall be considered
an arm of the State and shall enjoy the same sovereign inmunity
available to the State.” Here, the EUTF Board is “placed under
‘the department of budget and finance for administrative
purposes.” HRS § 7A-30. For their part, Plaintiffs argue that
HRS § 26-35(b) was not enacted until 2004, and thus, during the
relevant time period (2002-2003), the state’s sovereign immunity
did not extend to boards that are attached to executive
departments. See 2004 Haw. Sess. L. Act 16, § 8 at 35 (stating
that the effective date is April 23, 2004). Plaintiffs’ argument
is unavailing.
36
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It appears from HRS § 26-35(b)’s legislative history
that the addition of subsection (b) was not intended to extend
the State's sovereign inmunity to administratively-attached
boards, but rather, merely to clarify that such boards were
already entitled to sovereign inmunity. See Hse. Stand. Conn.
Rep. No. 642-04, in 2004 House Journal, at 1655 (“The purpose of
this bill is to clarify that all administratively-attached boards
land commissions are arms of the State and entitled to the sane
sovereign immunity as the State itself.” (Emphasis added.));
sen. stand. Comm. Rep. No. 3079, in 2004 Senate Journal, at 1525
("Your Conmittee believes that this measure provides
clarification that all administratively attached agencies are
entities of the State and are covered by the state sovereign
immunity, despite variances in their powers or duties.”
(Emphasis added.)). As such, the fact that the subsection was
not enacted until 2004 does not mean that administratively-
attached boards pricr to that were not arms of the State entitled
to sovereign immunity. See Brown v. Thompson, 374 F.3d 253, 259
(4th Cir. 2004) (relying on legislative history to determine
whether amendment changes or merely clarifies existing lew); City
of Colorado Springs v. Powel), 156 P.3d 461, 465 (Colo. 2007)
(stating that presumption that “by amending the law the
Jegislature has intended to change it” can be rebutted “by 2
2
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showing that the legislature meant only to clarify an ambiguity
in the statute by amending it”); Carter v. California Dept. of
Veterans Affairs, 38 Cal. 4th 914, 922, 135 P.3d 637, 642 (2006)
("In deciding the anendnent’s application, we must explore
whether the amendment changed or merely clarified existing law.
A statute that merely clarifies, rather than changes, existing
law is properly applied to transactions predating its enactment.”
(Citation omitted.)). Accordingly, we hold that the EUTF Board
is an arm of the State entitled to assert the defense of
sovereign immunity.
2, Plaintiffs’ claim against the State for vicarious
liability for the Trustees’ choice of a two-tier rate
structure is barred by the State's sovereign inmunity
because the design and structure of the health plan is
a broad policy matter which is a “discretionary
function” within the meaning of HRS § 662-15(1).
Plaintiffs next argue that their claim against the
State for vicarious liability for the Trustees’ choice of a two-
tier health plan rate structure is not barred by the
discretionary function exception to the State's waiver of its
sovereign inmunity. We disagree.
“[1]t is well established that the State’s liability is
Limited by its sovereign immunity, except where there has been a
‘clear relinquishment’ of immunity and the State has consented to
be sued.” Tavlor-Rice v, State, 105 Hawai‘ 104, 109-10, 94 P.3d
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659, 664-65 (2004) (cktation omitted). HRS § 662-2 (1993)
provides that “[t)he State hereby waives its immunity for
Liability for the torts of its employees and shall be liable in
the sane manner and to the sane extent as @ private individual
under Like circunstances(.)" Notwithstanding this general waiver
of immunity, HRS § 662-15 (1993) provides, in relevant part,
that:
‘This chapter shall not apply to:
[1 Any claim based upon . . . the exercise or performance
GF the failure to exercise or perform a discretionary
function cr duty on the part of a state officer or employee,
hether of not the discretion involved has been abvsed[.)
this portion of section 662-15(1) is generally referred to as the
“discretionary function exception,” and, if a government actor's
decision or conduct falls within that exception, chapter 662 does
not apply and the State retains its immunity. The purpose of the
discretionary function exception is to “recognize(] the separate
powers and functions of the legislative and executive branche
of
state government and protect |] them from any attempted
disturbance through the courts.” Breed v. Shaner, 57 Haw. 656,
666, 562 P.2d 436, 442 (1977).
our precedent makes clear that, in deciding whether
actions of State officials fall within the discretionary function
exception, we must “determine whether the challenged action
involves the effectuation of a ‘broad public policy[,]’ on the
39
one hand, or routine, ‘operational level activity(,]’ on the
other.” Tseuex rel, Hobbs v, Jevte, 88 Hawai'i 85, 88, 962 P.2d
344, 347 (1996). Operational level acts are “those which concern
routine, everyday matters, not requiring evaluation of broad
policy factors.” Breed, 57 Haw. at 666, 562 P.2d at 442.
In Julius Rothschild & Co, v. State, 66 Haw. 76, 80,
655 P.2d 877, 881 (1982), this court held that the state's
decision not to reconstruct the Moanalua Stream Bridge to conform
to a fifty-year flood criterion constituted a discretionary
function. The project involved a “costly reconstruction of a
two-span permanent concrete structure which is presently an
integrated part of a heavily-travelled highway.” Id. We stated
that whether such @ project should be authorized would require “a
weighing of priorities at the higher levels of government, and
would surely entail evaluations based on financial, political and
economic considerations.” Id. at 80-61, 655 F.2d at 881. other
activities we have deemed to involve the evaluation of broad
policy factors, and are therefore discretionary, include “a
decision to purchase certain aircraft, a decision to activate an
airbase, (and) 2 decision not to build a prison.” Breed, $1 Hew.
at 667, 562 P.2d at 443 (footnotes onitted) .
On the other hand, activities we have deemed
operational include the decision to improve guardrails, Taylor=
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Rice, 91 Hawai'i at 78, 979 P.2d at 1104 (rejecting the State's
argument that “the decision to inprove guardrails, 1ike the
decision not to reconstruct a bridge in Julius Rothschild,
involves the evaluation of broad policy considerations”); and
decisions regarding the placement of road signs and the painting
of road stripings, Rovers v. State, $1 Haw. 293, 298, 459 P.2d
378, 381 (1969) ("[SJuch matters as the kinds of road signs to
place and where to place them, and which center line stripings to
repaint and when to repaint them, did not require eveluation of
policies but involved implementation of decisions made in
everyday operation of governmental affairs.”).
Here, the decision about the structure of the EUTF
health benefits plans clearly was not a routine, everyday matter,
but involved the evaluation of broad policy factors including:
(1) the percentage of employee-beneficiaries that would be
adversely affected by s change to the various rate structures:
(2) the fact that a four-tier structure would increase the costs
for those least able to afford it, ise, families with two or
nore dependents; (3) the potential impacts of adopting tier
structures that were new and could complicate the collective
bargaining process, which was geared to a two-tier structure,
thus possibly leading to enployee-beneficiaries having to pay the
full cost of their premiums; and (4) the possibility of a strik
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In sum, the Trustees’ decision to adopt a two-tier rate structure
falls within the discretionary function exception.
3. HRS § 661-11 does not save Plaintiffs’ claim against
the State for vicarious liability for the Trustees
breach of fiduciary liability.
Plaintiffs next contend that, pursuant to HRS § 661-11,
even if the discretionary function exception applies with respect
to their claim against the State for vicarious liability for the
Trustees’ breach of fiduciary liability, the State's sovereign
inmunity was nevertheless waived by the purchase of fiduciary
Liability insurance, see supra Section 1.8, as was required to be
procured by HRS § 87A-25(4), supra note 5.
HRS § 661-11, entitled “Tort claims against State where
covered by insurance,” provides:
‘This section applies to an action where (1) the state
party defendants (2) the subject matter of the claim is
policy entered into by the
‘and (3) chapter 662 does not
ign imnunity shall be raised in
n.” However, the State's
Tability uncer this Section shail not exceed the onount of,
land shall be defrayed exclusively by, the primary insurance
peltey.
[An action under this section shall not be subject to
sections 661-1 to 661-10.
(Emphasis added.) whether or not the State's sovereign immunity
is waived pursuant to HRS § 661-11 with respect to Plaintiffs’
claim against the State for vicarious liability, as discussed in
Section III.A, supra, the Trustees’ choice of a two-tier rate
a
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structure was not an abuse of discretion. As such, the Trustees
did not breach a fiduciary duty, and thus, the State cannot be
vicariously liable therefor. In sum, the applicability of HRS §
661-11 is immaterial to this case.
Plaintiffs’ claim against the State for negligent
training must fail because it is dependent upon a
breach of duty by the Trustees.
Plaintiffs also assert that their claim against the
State for negligent training or advice is not barred by the
State's sovereign inmunity. HRS § 87A-9 (Supp. 2001) states that
“[tdhe attorney general shall serve as legal adviser to the board
. so" Plaintiffs allege that the Attorney General
“negligently performed its duties as [the BUTP’s] adviser with
respect to the fiduciary duties of the . . . trustees,” which
resulted in a breach of fiduciary duty owed by the Trustees to
Plaintiffs and others similarly situated. Plaintiffs further
allege that “{wJhen a person in a fiduciary relationship to
another violates his duty as @ fiduciary, a third person who has
notice that the trustee is committing a breach of trust and
participates in the violation of duty is liable to the
beneficiary.” (Citing Restatement (Second) of Trusts § 326
(1959)). Thus, Plaintiffs contend, “Af the Attorney General knew
or should have known that the (T]rustees were ignoring or were
ignorant of their fiduciary duties to Plaintiffs and sat silent,
3
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and if that advice or lack of advice/training was a substantial
factor contributing to the [T]rustees’ breach of their fiduciary
duties, . . . the State is liable for the Attorney General's
misconduct or lack of training... .”
Plaintiffs’ assertions are premised on the conclusion
that the Trustees breached @ fiduciary duty. Because, as
Giscussed in Section 111.8, supra, the Trustees did not breach a
fiduciary duty, Plaintiffs’ claim against the state for negligent
training or advice must fail. Thus, the circuit court did not
err in awarding summary judgment on this claim in favor of
Defendants.
Although £1 ifs" Claim jeclaral Pros
r < is
Ne nied Bi ie ‘Trustees’ Did Not 73
ni Tier Ral
Plaintiffs’ Second Anended Complaint sought, inter
alia, declaratory and injunctive relief prohibiting the two-tier
rate structure and requiring the Trustees to solicit proposals
for multi-tier health plans, to adopt the most advantageous
proposal, and to obtain training on the nature of their fiduciary
duties. Defendants concede that Plaintiffs’ clains for
declaratory and injunctive relief are not barred by either
sovereign immunity, see Office of Hawaiian Affairs v. State, 110
Hawai'i 338, 357, 133 P.3d 767, 786 (2006) ("[Slovereign immunity
may not be invoked by the State if the suit seeks ‘prospective,’
“
‘2+ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
dues, injunctive, relief and the State fails to carry its burden
of proving with specific facts that the effect on the state
treasury will be directly, substantially, and quantifiably
Ampacted."), or the Trustees’ HRS § 26-35.5(b) immunity.
Because, as discussed in Section ITI.A, supra, the Trustees did
not abuse their discretion in adopting the two-tier structure,
Plaintiffs’ arguments that the Trustees should be (1) prohibited
from adopting a two-tier system, (2) required to solicit
proposals for multi-tier health plans, and (3) required to obtain
training on the nature of their fiduciary duties, are unavailing.
Vv. conchusron
Based on the foregoing, we affirm the circuit court’s
February 24, 2005 judgment.
on the brief:
George . Brandt,
Bonnie Moore (Lyons, Pane CNet ye
Brandt, Cook & Hiranatau)
and Janes X. Duca
(Kessner Duce Unebayashi
Sain & Hatsunaga) for
atiffs-appellants
plaintiffs-appel lant: Yuet. Debby be
Brian P. Aburano,
Deputy Attorney General, Wiles Séhe
Janes Kavashina,
Kristine Tsukiyana,
(Watanabe Ing Kawashina
& Koneiji LLP),
Brien T. Ortelere, and
Beth M. Henke (Morgan,
Lewis & Bockius, LLP)
for defendants-appeilees
a
|
43ed054f-877f-403c-aaa4-a05317212b52 | Kuamoo v. State | hawaii | Hawaii Supreme Court | No. 26370
IN THE SUPREME COURT OF THE STATE OF HAWATIZ
WILLIAM J. M. KUAMOO, SR., Petitioner/Claimant-Appellant,
OF HAWAII, DEPARTMENT OF AGRICULTURE,
Senne
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO. AB 2002-122 (H) (1-80-02492))
OF CERTIOS
“TING APPLICATI(
x the court)
(By: Moon, C.J.
Petitioner William J. M. Kuamoo, Sr.’s application for
2RDER
writ of certiorari, filed August 15, 2007, is hereby rejected.
lulu, Hawai't, august 28, 2007.
PATED: Her
FOR THE COURT:
|
5bdaa7a0-4b69-449a-a7dc-52fc9cf25dd2 | Zane v. Liberty Mutual Fire Insurance | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAI'I
=-+ 000
DAWNA C, ZANE, Plaintiff-Appellee-Respondent,
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
Defendant-Appellant-Petitioner.
No. 27317
L438 WY) 41 OW L002
CERTIORARI TO THE INTERMEDIATE COURT OF APPEAI
(CIV. No. 02-1-1140-08)
AUGUST 14, 2007
MOTION FOR RECONSIDERATION
NOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, 23., AND
CIRCUIT JUDGE STRANCE, IN PLACE’ OF ACOBA, J., RECUSED
‘This court having considered the plaintiff-eppellee-
respondent Dawna C. Zene’s April 25, 2007 notion for
reconsideration of our April 16, 2007 opinion, the defendant-
appellant-petitsoner Liberty Mutual Fire Insurance Company's May
28, 2007 response, and Zane’s June 4, 2007 reply,
IP 18 HEREBY ORDERED that the motion for
reconsideration is granted in part as fellows:
(2) Ger April 16, 2007 opinion in Zane v. Libert
Mutual Fire Ins. Co., No. 27317 (Haw. Apr. 16, 2007), is vacated
and shall not be published.
aad
(2) This order shall not be construed as a disposition
on the merits. We will file a new opinion shortly.
DATED: Honolulu, Hawai'i,
Ward F.N. Fujimoto,
of Matsui Chung, for the
defendant -appel lant -petitioner
Liberty Mutual Fire Insurance
Company
Bert S. Sakuda, of Cronin,
Fried, Sekiya, Kekins &
Fairbanks, for the plaintiff-
appellee-respondent Dawna C. Zane
August 14, 2007.
Pate CNet LE
Yaron & days 8+
Dabhid Gomer
|
86c49008-f7b2-4879-8d1b-a32b695d9a39 | State v. Thurston | hawaii | Hawaii Supreme Court | No, 27813
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
STATE Of HAWAI‘L,
Plaintiff-Appellee-Respondent,
PAUL THURSTON,
Defendant-Appel lant-Petitioner.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NOS. 05-1-1270, 5-1-1389, 5-1-1546)
a
8
(By: Levinson, J., for the court’)
Upon consideration of the application for a writ of
certiorari filed on July 9
petitioner, Paul
DATED: Honolulu, Hawai'i, August 15, 2007.
FOR THE COURT:
Christopher R. Evans
for the defendant
appellant petitioner
Paul Thurston,
on the application
onsidered by: Hoon, C.J., Levinson, Nakayama, Accba,
2007 by the defendant-appellant-
‘Thurston, the application is hereby rejected.
and Ovffy,
ws,
Ps
g:
|
eb6403f2-2193-4ddf-bd5e-5ac041721ff5 | State v. Hulama | hawaii | Hawaii Supreme Court | No. 26561
a 8
IN THE SUPREME COURT OF THE STATE OF HAWAT'T®!
al
STATE OF HAWAI'I, Respondent /Plaintif£-Appel 1Be|
OGNvRT
‘|
2
EDWARD HULAMA, Petitioner /Defendant~Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR. NO, 04-1-0130)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
Duffy, J., for the court)
(By?
Petitioner/Defendant-Appellant Edward Hulama’s
application for a writ of certiorari, filed on July 2, 2007, is
hereby rejected.
DATED: Honolulu, Hawai'i, August 9, 2007.
FOR THE COURT:
Cane Adit:
Associate Justice
Lars Peterson
and Deborah L. Kim,
Deputy Public Defenders,
for petitioner/defendant—
appellant on the application
Hoon, C.J., Levinson, Nakayama, Accba, end
potty, 3.
* considered by:
om
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812c8636-15a6-48ef-915d-8db2cd92b1fd | State v. Reis. Dissenting Opinion by J. Acoba [pdf]. | hawaii | Hawaii Supreme Court | ‘44 FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER #*#
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
200
STATE OF HAWAI'I, Plaintiff-Appellant,
SUSAN REIS, aka SUZANNE REIS, Defendant-Appellee.
No. 27171 (CR. NO. 04-1-0028)
STATE OF HAWAI'I, Plaintiff-Appellant,
SUSAN REIS, ska SUZANNE REIS, Defendant-Appellee.
(CR. NO. 04-1-0675)
‘wo. 27172
No. 27171
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NOS. 04-1-0028 AND 04-1-0675)
auGusT 21, 2007
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.7
AND ACOBA, J., DISSENTING
OPINION OF THE COURT SY LEVINSON, J.
‘The plaintiff-appellant State of Hawai'i (hereinafter,
“the prosecution”) appeals from the January 11, 2005 judgment of
conviction and probation of the circuit court of the first
circuit, the Honorable Steven S. Alm presiding, convicting the
defendant-appellee Susan Reis in Criminal (Cr.) Ne. 04-1-0028 of
promoting @ dangerous drug in the third deoree (Count I), in
(igs) § 722-1243 (Supp.
violation of Hawai'i Revised Statutes
awful use of drug paraphernalia (Count 11), in
2002), un
anys
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violation of HRS § 325-43.5(a} (1993), and prostitution, in
violation of HRS § 712-1200 (Supp. 1998) (Count 111), and
convicting her in Cr. No. 04-1-0675 of the sane drug offenses
based upon a separate incident, and sentencing her, inter alia,
to @ five-year period of probation, pursuant to ERS § 706-€22.5
(supp. 2008).
2 B&tective July 1, 2002, the legislature enacted the predecessor
statute to HRS § 1067622.5 (Supp. 2004) in Act 161, $3, later codified at BRS
§ 706-622.5 (Supp. 2002), which proviged in relevant part
Sentencing for first-tine drug offenders .
(2) Notwithstanding any penalty or sentencing provision
unger [HRS eh. 712, pt. IV igeheerning offenses related to drugs
land intoxicating cospounds)], 2 person convicted for the firet
Cine for any offense under (HRS Gh. 112, pt- IV) involving
possession } not aneluding to distribute cr menvfacture as
Sefined in inis's} 712-1240 [ (Supp. 1999)], of eny dangerous drug
Vino is non-violent, se determined by'the court after
Feviewing the:
(g] Criminal history of the defendant,
(5) Factual cireunstanc
Gefendant is being
(c) Other information deened relevent by the court:
shall be sentenced in accordance with (paragraph). (2)7, provided
that the person does net have @ conviction for any violent felony
for five years immediately prece[iding the date of the commission
of the offense for wnich the defendant is being sentences.
(2) person eligible under paragraph) (2) shall be
sentenced to!prchation to Undergo ahd cenplete & drug treatment
progran.
See 2002 Haw. Sess. L. Act 161, §6 3 and 12 at 572, $75. Effective July 1,
2004, the legislature amended RS § 706-622.5 to read:
for wich the
Sentencing for first-tine drug offenders |.
(2) Notwithstanding (HRS) 706-620(3). { (disallowing
probation for repeat offenders) ], a cexson convicted for the first
Kins for any offense under (HRS ch. 712, ph V1 invelving
onsession % tribute or ment
5 ie
eligible to be centencea to probation unser [paregroph) (2) if the
person neets the following criteria:
‘The court has determined that the person is nonviolent after
reviewing the person’ criminal history, the factuel
Circumstances of the offense for which the person is being
sentenced, ano any other relevant information|.
{2 A person eligible under (paragraph) (1) may be sentences
(cont snves
‘44 FOR PUBLICATION IN WEST'S JUKAI'T REFORTS AND PACIFIC REPORTER
on appeal, the prosecution asserts that the circuit
court imposed an illegal sentence in sentencing Reis to
probation, inasmuch as, in light of an undisputed prior
conviction, she was a repeat offender and, therefore, should have
been sentenced pursuant to HRS § 706-606.5 (Supp. 1999).
11. scontinues)
te probation to undergo and complete a substance sbuse treatment
Erogran if the court determines thst the person can benefit from
Sobstance abuse treatment and, not
would be eublect to sentencing ss2 rapes neat
ErGtect the public.
see 2004 Haw, Seas. 1. Act 44, $§ 11 and 33 at 214, 227) HRS $ 106-622.5(1)
Sha 12) (Supp. 2008) (emphases eadea).” Section 29 of Act 44, absent from the
Codified version found at HAS § 706-622.5, reads ae follows:| “This Act doe
not affect rights ane duties thet matured, fenalties that were incurred, end
Proceedings thet were begun, before ite effective Gate.” See 2008 Haw. Sess.
Ei net aay § 28 at 227
+ uRS § 106-606.5 provides in relevant part:
(2) Notwithstanding [HRS §] 706-669 (Supp. 1996) (providing
for parole hearing anc procedure therefor)] anu any other iaw to
the Contrary, any person convicted of... (HRS §) 712-1243
and who has’ price conviction... for"... any of the class C
felony offenses eninersted above [including HRS § 708-836,
Felating to unauthorized control of (a) propelled vehicle,}. .
Shall be fentences to 2 mondstory ninisum period of inpriscnment
Without pessibility ef parole ouring euch peried as follows:
al one prior felony conviction:
(av)' there the instant conviction is for a class C
felony offense enumerates above ~~ one year, eight
‘zi Except os in (paragraph) (3) (concerning special terms
for young adults) I, a person shell not be sentences to's mandatory
inimon period of imprisonment under this section unless the
Unstane felony offense wae committed »
je)" Within five years after @ prior felony conviction
where the pricr felony conviction wae for a class C
felony offense enumerated ebove |]
Effective May 8, 2006, the legislature snended HRS § 706-606.5 in respects
Unmoterie! to the present netter- See 2006 Haw. Sess. L. Act 80, §§ 1 and 7
at 234-3
FOR PUBLICATION 10 WEST’ © HAWA'T REFCRTS AND PACIFIC REPORTER «#4
For the reasons discussed infra in section III, ve hold
that the circuit court erred in sentencing Reis as a first-time
drug offender rather than a repeat offender. We therefore vacate
the Janvary 11, 2008 sentence and remand for resentencing as @
repeat offender, pursuant to HRS § 706-606.5.
1. BACKGROUND
on January S, 2004, Reis was charged by complaint in
Cr. No. 04-21-0028 with Counts 1, II, and III in connection with
events that occurred on or about December 23, 2003.
on April 13, 2004, in Cr. No. 04-1-0675, Reis was
charged by complaint with new violations of HRS § 712-1243 (Supp.
2002) (Count I) and HRS § 329-0043.5(a) (1993) (Count 11) in
connection with events that occurred on or about April 1, 2004.
on June 22, 2004, in a consolidated proceeding, Reis
pled guilty to all counts. On July $, 2004, the prosecution
filed a motion for sentencing as @ repeat offender. The
prosecution's motion was based on Reis’s prior conviction in
2001, in Cr. No. 1-1-1533, of unauthorized control of a
propelled vehicle, in violation of HRS § 708-836. Reis did not
contest the fact of the prior conviction.
On January 10, 2008, the circuit court conducted &
hearing. Reis stipulated to her eligibility for sentencing as @
repeat offender. The prosecution opposed probation, requesting
FOR PUBLICATION IN WEST'S WANAT'T REFORTS AND FACIFIC REPORTER ++*
the court to impose concurrent indeterminate five-year terms of
imprisonment in all three cases.”
After reviewing Reis’s efforts at rehabilitation since
her arrest, the circuit court ultimately reasoned that
che législature hae given the Court the discretion and
the opportunity when we think it's appropriate not to
Bevgiving repeat offender and not to be giving prison
tine» (ryalk is Very cheap, bor you have
Gone nat you said you were going to dow Since you
felts brought this op in the sumer, you've gone
through one place et [the] Queen's Medical Center]
then you've transferred te Csancnd Head [2 crug
Fehebilitation program)... [Yieu've done well sn
there. I'm going te give you 8 chance to continue on
this toad. So i'm going to deny the motion for repest
Elfenders 1 will place you on probation for five
Jeers. the Jail ie credit for time served. 1 con't
Think that's appropriate Fight pow.
on January 12, 2005, the circuit court entered its judgment of
conviction and sentence, sentencing Reis to a five-year term of
probation.
on January 26, 2005, the prosecution filed a motion for
reconsideration of sentence, and the circuit court conducted
February 22, 200 hearing on the notion. The prosecution argued
that the circuit court erred in sentencing Reis to probation
under HRS § 706-622.5 (Supp. 2004), originally enacted as Act 44,
‘see gupra note 1, noting that Act 44 did not go into effect until
July 1, 2004, while Reis''s convictions were based upon incidents
that occurred on December 23, 2003 and April 1, 2004 and
complaints that were filed on January 5, 2004 and April 7, 2004,
respectively. The prosecution argued that, pursuent to our
precedent in State v, smith, 103 Hewai'i 228, €1 P.3d 408 (2003),
2 Rede acknowledged that her guilty pleas in Cr. No. 04-21-0026 and
_ to. Of-1"0675, see supes, sutonstically revoked the probetion she was
frving in Cr, Ne. O9-i-1883
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and State v. Welker, 106 Hewai'i 1, 100 P.3d 595 (2004), Reis’s
repeat offender status under HRS § 706-606.5, see supra note 2 -~
based upon Cr. No. 01-1-1533
trumped the provisions of HRS
§ 706-622.5, see supra note 1, “‘with respect to all cases
involving rights and duties that mature(d), penalties that vere
incurred, land) proceedings that were begun, before the effective
date of Act 44*" and contended that, insofar as both prosecutions
in the present matter were begun before July 1, 2004, Reis shovld
have been sentenced to a period of imprisonment as a repeat
offender.
Reis argued that because she was sentenced after
Duly 1, 2004, the provisions of Act 44 applied to her cases
because the language of Act 44, section 29 refers to “proceedings
that were begun” before the effective date of the act, and Reis’s
sentencing hearing (in her view a “proceeding” within the meaning
of Act 44, section 29), wholly separate and apart from her ple
and conviction dates, was commenced after July 1, 2004. she
distinguished the prospective application of Act 44 to her case
from the retroactive application at issue in Walker, noting that
in Walker, the defendent . . . was sentenced... in
Decenter 2003. "So nis actual sentencing was prior to
the July 1, 2004 [effective date] of Act 44.
In the present case, .. . Reis was sentenced
=. after the July lst, 2008 [effective aate) of
ict 44°" “Rael we would argue th
ying proceedings begun befo
het applicable. in our pert ice:
Proceeding is the sentencing itself.
Ad. Reis then argued that
[ilt's clear from the language in... act 4
that [the legislature is) intensing to give the courts
nore or greater discretion in terme of sentencing te
Silow for probation even for those persone sho ave
eligible Gr repest offencer, and thet 1s enscely
é
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what occurred in this case. she war sentenced after
the effective date of the statute
So, for all those ressons, we believe
thet's exactly what Act 44 intended in this case, and
tie co not believe for thst reason that Welker is
Gispositive
The court conducted the following analysis
ALL right. I agree with (Reis). [in] Walker,
«ss the arrest, the plea, the conviction,
Jehténcing, all took place before Act 46" effective
Gate, Suly 2, 2008. Ane Act 44 does say the Act
[acer not affect rights and duties thet meture(d),
pensitier that were incurred, and proceedings that
Mere begun before the effective cate-[")
here, Reis was arrested, she pled, and
think the plea ‘was opproxinately a week before the Act
4¢ gate. [$] But the sentencing was well after that
And there ie no question the legislature in their word
MMtended a broader group of non-violent druc offenders
Mill be eligible for consideration for probation in
Sreer to undergo drug treatnent. And that the
Jegialature wants to present more discretion by the
Court in sentencing. “I'believe that Ms. Reis fits
Snte thar ersteri (on), end that Both she ano society
wild be better off with her getting duai-diagnosis
Core an the drug treatrent care that ere set up for
her rather than sentencing her as a repeat offender
tnd sentencing ner to priser.
Toehink (this case is) éifferent from
fauker'peckuse of the timing. - +. Penalties were
Uncurred after the effective date of Aet 44.” And
preceedinge thet were begun, the Court is of the
belief chat when... proceedings [are] being
sti eferring to the sentencing
s (739 State w. Avilla, 69 Haw. 509, 1750
adee],] there’s @ similar... clacte
ct the
P.2d
Geseribing that. [*]This Act does fot of
Hlghte and duties that mature (o,) penalti
Inesrred(,] and proceedings thet were begun before its
effective’ date. ("] And the prosecution in
Sigued thet proceedings that were begun shculd refer
forthe initiation of the prosecution. The Suprene.
Court cisagrees.” They seid that proceedings con also
Fefer to bail proceedings, and in Avilla, this was =
post-conviction bail preceeding. Sete accurred after
Ehe conviction, and thet, J think, certainly comporte
with our situation sn thie ca
< _ae bears noting thet Reis entered her guilty pless in both Cr.
4-1-0026 and 0471-0675 ang the circuit court sdjucged ner guilty on’ all
Js before the provisions of
Nes
counts in both aatters on June 22, 2004, nine
Ret 44 cook effect.
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In addition, the Suprene Court alse pointed out
in Avilla thet when there is doubt or dovbleness of
meaning, of indistinctness, or uncertainty of an
expression vsed in the atetute, thac on ambiguity
exists. And in such case, the Court should lock at
the intent of the legislature for guidance. And as T
said before, the intent is clear, and that’s to give
the Court more discretion in sentencing.
The circuit court then denied the prosecution's motion.
Pursuant to an extension, on March 11, 2005, the prosecution
timely filed notices of appeal in both Cr. No. 04-1-0028 and cr
No. 04-31-0675, which were docketed as Supreme Court Nos. 27171
and 27172, respectively. Our June 2, 2008 order consolidated the
two appeals under No. 27171.
IT, STANDARDS OF REVIEW
AL Sentencing
“The authority of a trial court to select and
determine the severity of a penalty is normally undisturbed on
review in the absence of an apperent abuse of discretion or
unless applicable statutory or constitutional commands have not
been observed.’” State v, Aplaca, 96 Hawai'i 17, 22, 25 P.3¢
792, 797 (2001) (quoting State v. Jenkins, 93 Hawai'i 87, 100,
997 P.2d 13, 26 (2000)).
B. Conclusions of Law (coLs:
“YA COL is not binding upon an
appellate court and is freely reviewble
for its correctness."" AIG await Ine.
So. 2, Estate of Carsang, 19 Haw. Got,
626, 851 Pr2a 321, 32 (1995) (qdoting
2 lide
TT naw. 65, 119, 039 Puta 10, 26
(1882})." ‘This court ereinarily reviews
COLs under ‘the right /wren
ze Estate of folty 75 Haw. 224,
Fie tsss, 1359 (1983). Thue, **{a) COL
that is supportea by the trisi court's
44 FOR PUBLICATION IN MEST’S HAMAI'T REFORTS AND PACIFIC REPORTER ***
[sindings of fect) and that reflects
application of the correct rule of law
Will not be overturned.’” Estate of
74 Mase, at 626-29, 851 Przd at
See (Geoting anéac, Inc., 74 Haw. at 115,
839 Pa2d et 29). ‘Wowever, a COL that
presente mined questions of fact and lew
[ereviewed under che clearly errenesvs
tandard because the court's conclusions
are depencent pon the fects sna
of each individual casi
is} Po2d at 326 (quoting
174 Haw, at 119, 039 Pead at
Ger (intertal quotation marke emitted) -
State vs Burutani, 76 Hewas's 172, 1180), 673 P.28 51, 159)
T185e7-
Allstate Ins. Co. v. Ponce, 105 Hawai'i 445, 453, 99 P.3d 96, 104
(2004) (some internal citations omitted) (bracketed material
altered).
Cc. Interpretation of Statutes
The interpretation of a statute is a question of lew
reviewable de nove. State v, Arcec, 84 Hawai'i 1, 10, 928 P.2d
843, 852 (1996).
Furthermore, our stetutery construction
Gatabiisned roles:
vides by
linen construing @ statote, our foremost
cbligation 1 to zecertain and give effect
fo the intention of the legislature, which
Is to be cbtained prinariiy from the
‘anguage contesned in the statute itself.
And we must. Tead #tatutory Language in the
Content of the entire statute and construe
Stina manner consistent with ite
purpose,
Tihen there is doubt, doubleness of
neaning, cr Indistinctiveness oF
Uncertainty of an ewpresescn used in 2
statute, en ambiguity exists. .
Yh construing am ambiguous statute,
wieyhe mesning of the anbiguovs words may
be sought by examining the content, with
Walch the anbigueus words, phrases, anc
Sentences nay Be compared, in order te
ascertain their true pearing.” HRS
S's15(1) 1(1993)}., Moreover, the courts
hay resort to extrinsic eigs 30
°
+4 FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER #+4
Getermining legislative intent. one
avenue fs the se of Legislative history
a5 an interpretive tool,
Gesu! vs admin, Dir. of the Court], 64 Hawai'i (138,)
448, 931 F.2d 1980,] 290 [11987] (footnote omitted)
State v. Koch, 107 Hewai'i 218, 220, 112 P.3d 69, 74 (2005)
(quoting State v. Kaua, 102 Hawai'i 1, 7-8, 72 P.3d 473, 479-80
(2003)}. Nevertheless, absent an absurd or unjust result, see
State v. Hauoen, 104 Hawai'i 71, 77, 85 P.3d 178, 184 (2004), we
are bound to give effect to the plain meaning of unambiguous
statutory language; we may only resort to the use of legislative
history when interpreting an ambiguous statute. State v
Valdivia, 95 Hawai'i 465, 472, 24 P.3d 661, 668 (2001).
IIT. piscussion
A, The Parties’ Arounente
1. Reis contends that the circuit court correctly
Aet_44, section 2005
Act 44, section v se.
Reis and the prosecution disagree regarding the meaning
of the following underscored phrases within Act 44’s savings
chavs
matured, penalties that vere incurred, and proceedings that were
begun, before its effective date,” see supra note 1, Reis
“This Act does not affect rights and duties that
maintains that the meaning of “incurred” and “proceedings” cannot
be divined with certainty from the plain language of the savings
10
444 FOR FUELICATION IN WEST'S JOMAL'T REFORTS AND PACIFIC REFORTER #+*
clause? and that the cases cited by the prosecution, which
Anterpret the same language in other legislation, merely
illustrate how statutory interpretations have varied, thereby
bolstering her argument that the language of Act 44’s savings
clause is inherently ambiguous. (Citing Walker; State v
Feliciano, 103 Hawai'i 269, 274, 81 P.3d 1184, 1189 (2003);
Avilla, 62 Haw. at 512, 750 P.2d at 60; State v. Kel, 98 Hawai'i
137, 44 P.3d 286 (App. 2002); State v. Werner, 93 Hawai'i 290,
295, 1 P.3d 760, 765 (App. 2000); State v. Johnson, 92 Hawai's
36, 44, 986 P.2d 987, 995 (App. 1999).)
Reis argues that, inasmuch as the foregoing terms are
ambiguous, the circuit court correctly delved into the Act's
legislative history to support the circuit court’s COL that the
word “proceedings” can refer, in isclation, to 2 sentencing
hearing conducted after Act 44's effective date, thereby
authorizing the circuit court's application of Act 44,
section 11/s amendments to HRS § 706-622.5, see supra note 1, so
+ Reis quotes HRS § 701-101(2) (19931, which provides that
vanendnents made By Act 214, Session Laws of Hawsii 1986, to this Code do not
apply to offenses: committed before the effective date of Act $14, Session Laws
cP igwest 1986" a8 en example of an tnasbiquous savings clauses that clearly
Sncludes offenses committed prior to en effective date, she argues that the
[egisleture, in Act #4, section 29, “chose to use the anbiquous tems of
thet were begun’ and spensities thet were incurred” and argues
che'tno phrases are net ambiguove woul vielate rules of
Statutory interpretation. —lEnphasis eaced.)
The Gissent, too, aszerte thet to avoid ambiguity the legislature was
sonchow requires to use the phrase “offense committea” in the savings clause
fang, by failing to do so, created ambiguity. Dissenting opinion at 12-13 1.7,
he digevesed antzg, this court, in State v. van den Bera, 101 Hawas's 187,
To1, 68 F.3d 154, 138. [2008], Anplietezy concluded that the plain language of
the term “proceedings” in the etangsré savings clause betokened ~~ so clearly
ae not to werrent further coment -- the initiaticn of = criminal prosecution.
Contrary to the implication of Reis’s and the dissent's logic, the absence of
fone unesbiovcus tern dees not, ipso Zacig, render encther otherwise
Ghambiguous cere spontaneously ambaguous:
a
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as to authorize sentencing Reis to probation.* In conclusion,
she asserts that any ambiguity should be construed in her favor,
in keeping with the rule of lenity, citing State v. Shimabukuro,
100 Hawai'i 324, 327, 60 P.3¢ 274, 277 (2002), State v,
Vallesteros, &¢ Hawai'i 295, 302, 933 P.2d 632, 639 (1997), and
State v. Rosers, 68 Haw. 438, 443, 718 P.2d 275, 277-78 (1986).
In light of the dissent’s insistence on arguing that
the provisions of Act 44, section 11 should be applied
retroactively” (gee, e.c., dissenting opinion at 12, 33 6 n.32),
St As important to emphasize that Reis herself does not
characterize her argunent as implicating retroactive application.
Reis contends only that the terms “proceedings” and “incurred”
are ambiguous, which she argues justifies a review of the
legislative history underlying Act 44, The legislative history,
she argues, supports @ construction of the tern “proceedings” to
include @ sentencing hearing and of the term “incurred” to mean
imposition of sentence, both of which would allow a prospective
application of Act 44, section 11, see supra note 1, to her case
‘Reis cites to legislative committee reports to denonstrate that
the intent underlying Act 447s anendnents to HRS § 106-€22.5 was "te clear Up
ding repeat offenders ana the eriteria for eligibility for
Grug treatment, and permit more discretion by the court in sentencing” and
thereby to incvease the number of non-vielent drug effenders eligible for
probation under HRS § 706-622.5. (Quoting 200¢ Hew. Secs. L. Act €¢, § 9 at
Bige13.) ke that the circuit court's interpretation of the savings
clause Congorte with that intent,
he dissent argues that Act dé, section 29 does not prevent
retroactive application of the aneliorative anendnents to Reis's case, See,
Eig, Giseenting opinion at 12, 33. Ie 4¢ worth noting, therefore, that th
Slate wv. brantiey, "98 sawas't 4e3, 56 P.3a 1262 (2002), after anelyeing en
Hcenticat savings clause, compare 1999 liaw. Sees. L. Ket 12, € 2 ac 19 with
2004 How. Sess. L. Act 4, § 29 st 221, the dicsent aeserted thot the same
language represented “the' legislature's exprest itection that the enencnent
wes not to be eppised retresctively.” Id. at 483, S6 F.3d et 172 tnecber Su,
Slesenting)
az
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by grounding the relevant events chronologically after Act 44"s
effective date. she docs not, by contrast, characterize the
application of Act 44’s amendments to her case at sentencing as
retroactive -- which would require viewing the sentencing
proceeding as part of the unitary criminal prosecution initiated
by the charging instruments dated January 5 and April 13, 2004
and, therefore, does not challenge this court's conclusion in
Halker, 106 Hawai'i at 10, 100 F.3d at 604, that Act 44 does not
apply retroactively.
Nevertheless, to the extent that Reis’s arguments could
be construed as implicitly arguing for retroactive application,"
and in the interests of thorough analysis,’ we address, infre,
the dissent’s arguments in favor of retroactive application of
Act 44, section 11 to Reis’s ca
2.
unambioususly refers to offenses that were
inits rte i's effective
The prosecution contends that the plein language of the
savings clause bars Reis from access to Act 44's amendments
because “a penalty is ‘incurred’ upon commission of the criminal
+ Black's Law Dictionsry 1343 (8th ed. 1999) defines @ “retroacti
law® as one thst icoks becmwara cr contemplates the past, affecting scts or
facts thet existed before the act cane into effect." Therefore, although Reis
Goes not employ the ters “retroactive” in her arguments, insofar es she does
Seek to appiy het 44°F anenanents to events that occurred prior to the Act's
etfective cate, we con conserve an implicit argunent for retroactive
applicstion.
+ the cigsent notes tuo pending cases, State v. Cruz, No. 27242, and
Sate v tactay, Ne. 27271, which implicste Act 44, section 78, Dissenting
EIST ETs.3°° the present opinion enconpasses the arguments nade by the
perties in those matters, including the retroactivity ergunent nade, at the
fest, eniy inplicitiy by Reis. We Leave a ciscussion of the merits of those
cose for ancther tine
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offense,” whereas the penalty itself “is imposed by the court at
sentencing,” and that Reis “incurred” the penalties at ‘issue in
December 2003 and Apri 2004, prior to Act 44's effective date.
(Bmphasis in original.) (Citing State v. McGranahan, 206 N.W.24
88 (Iowa 1973); Bilbrey v, State, 135 P.2¢ 999 (Okla. Crim. App.
1943); State v. Matthews, 310 A.2d 17 (Vt. 1973).) Therefore,
the prosecution argues, Reis “incurred” the penalties before
July 1, 2004, and the plain language of the savings clause in Act
44, section 28, see supra note 1, prevents the sentencing court
in the present matter from applying Act 44’s amendments to Reis’s
convictions.
The prosecution further asserts that we have previously
interpreted “proceedings” as unambiguously referring to unitary
criminal proceedings initiated with a formal charge and have
rejected the argument that a sentencing hearing can qualify as 3
severable “proceeding” for purposes of escaping the effect of a
savings clause. (Citing, inter alia, Feliciano, 103 Hawai'i at
273, €1 P.3d at 1188; State v. Van den Bere, 10] Hawai'i 187,
191, 65 P.3d 134, 138 (2003)). The prosecution also challenges
the circuit court's reliance on Avilla, insisting that bail
Proceedings are distinct in nature and character from criminal
Proceedings, distinguishing the ambiguity discerned by this court
in villa in the term “proceeding” from the plain language of
Act 44, section 29. (Citing State v. Miller, 79 Hawai'i 194,
201, 900 P.24 770, 777 (1995) (for the proposition that during
appeal, the circuit court loses jurisdiction over the criminal
proceeding but retains jurisdiction over bail).)
PY]
FOR PUBLICATION IN WEST’ # HAWAI'E REFORTS AND PACIFIC REFORTER #**
3 0
‘con wo dis irua=re offense:
several nonthe apart, her conviction for the
at recll he <: rt fros
ing “he stot
Finally, the prosecution argues that the circuit court
erred by failing to note that because Reis was convicted of two
separate offenses of possession of cocaine
December 23, 2003 and the cther on April 1, 2004
one occurring on
she could not
be a first-time drug offender with respect to the second of the
two offenses and, hence, regardless of the interpretation of
Act 44’ savings clause, could not be eligible for sentencing as
a first-time drug offender. (Citing Koch, 107 Hawai'i at 224,
112 P.3d at 18 (holding that Koch did not qualify es @ first-time
drug offender for two chronologically separate drug offenses for
which he was convicted and sentenced on the same day at @
consolidated hearing); State v, Rodrigues, 68 Haw. 124, 706 P.2¢
1283 (1985) (holding that two offenses committed at separate
times but for which sentence was imposed on the sane day
constituted separate convictions for purposes of HRS § 706-606.5
(Supp. 1984)).)
Reis attempts to distinguish her cases from the
proceedings in Kech by noting that, while in Koch the simultaneous
entry of judgment of conviction was based on two separate findings
of guilt entered on different days with respect to the two charges
== one following a July 2003 jury trial and the other following an
Octcber 2003 no-contest plea -- Reis entered a change of plea to
guilty on both charges on the same day at the same proceedings,
with the clear intention of doing so in order to be eligible for
as
"+ FOR PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REFORTER ++
parole sentencing as a first-time drug offender, (Citing 107
wei'i at 223-24, 112 P.3d at 77-78.) She further argues that
application of Koch to her cases would result in substantial
prejudice to her, given her reliance on circuit court sentencing
practices before the Koch decision, and would violate her right to
due process because she committed the offenses in question and
pled guilty prior to the date of the Koch decision. (Citing,
Anter alia, State v. ikezawa, 75 Haw. 210, 220-21, 857 P.2d 593,
599 (1993) (setting forth a three-pronged test for analyzing the
fairness of retroactive applicability of a decision); Boule vs
Columbias 378 U.S. 347 (1964); United States v. Newman, 203 F.3d
700 (9th Cir. 2000).)
2 ircwi Erred ine
706 I lied 7 Y's Case:
1. *Pre¥ asd in Bi
‘criminal 4 ution Ta def
‘The initiation of criminal proceedings -- through “a
formal felony prosecution, preliminary hearing, indictment,
information or arraignment” -- “‘is the starting point of our
whole system of adversary criminal justice.” State v. Luton, 63
Hawai'i 443, 449-50, 927 P.2d 844, 850-51 (1996) (footnotes
omitted) (quoting State v. Maseniai, 63 Haw. 254, 360, 628 P.2d
1018, 1023 (1981) (following Kirby v. Illinois, 406 v.s. 662
(1972))). In Van den Berg, analyzing an identically worded
savings clause," this court construed the term “proceedings” to
* _.im Vanden Berg, we noted that the act in question contained «
sovings clause that "expressly stated thet the amenanents to the act were not
ieont inves)
as
[FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER ¢*#
mean the initiation of prosecution through a charging instrument
and concluded that the amendments in question were therefore not
available to the defendants:
In the present case, the record indicates that [the
defendants'] respective proceedings were “begun”
before [the effective date of the enendnente): (2)
Yan den Berg war indsctea on October 25, 199)
and (2) Keraglenes wos chsrged on July 6, 19892
Becsuse the proceedings involving [the defendants)
of Act 288, the 1993
Stotoce didaar eppiy to (trent
101 Hewai'i at 191, 65 P.36 at 138 (emphases in original).
Van den Gera raised the question whether the 1980 or
1993 version of HRS § 134-6(a), involving use of a firearm in the
connission of 8 felony, applied to the defendants’ cases. Id. at
190-91, 65 P.3d at 137-38 (majority opinion). In State v
Brantley, 99 Hawai'i 463, 469, $6 P.34 1252, 1258 (2002), this
court had concluded, based on a reading of the 1992 version of
the statute and its legislative history, that the legislature
intended to create a separate offense in HRS § 134-6(a) (Supp.
1993) and, therefore, that second degree murder was not @ lesser
included offense, overruling State v. Jumile, 87 Hawai'i 1, 950
P.3¢ 1201 (1998), which was similarly based on an analysis of HRS
to ‘aftect Fights sha duties that matured, penalties that were incurred, and
’ ivective gate.” “1d. at 151, 65 7.36
Tn Yan-den-Bera) (quoting 1993 Haw. Sexe. L, Act 238, § 2 at
Seas tempha
a9).
the digsent eeserte thet this court, “{in) Yen den Serg[,] did net
conclude thet ‘proceedings’ seans ‘criminal prosecutions.’ Dissenting
opinion at 21 ni20. A carefel reading of the language immediately supra
Feveals just such an inplicit conclueion, which this court determined did not
Narrant further explication or analysis in light of the normally unambiguous
Beening of the term 25 explcyed in the standard savings clause Nething in
Vanden Bexa's treatment of the term “proceedings,” certainly, renders it
Snepplicable oe illoetrative of how this court hee treated the term in the
poet
Vv
+14 TOR PUBLICATION 11 WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER +++
§ 134-6(a) (1993), Yan den Berg, 101 Hawai'i at 191, 65 P.3d at
138. By contrast, in Yan den Berg, this court concluded that the
Plain language of HRS § 134-6(a) (Supp, 1990) revealed no
legislative intent to create a separate offense; accordingly, 2
Gefendant could not be convicted of both a violation of HRS
§ 134-6(2) (Supp. 1990) and murder in the second degree. Id. at
192, €5 P.3d at 139. We then concluded that “proceedings”
Plainly meant the initiation of a criminal prosecution against
both defendants," and, noting that their “proceedings” had been
initiated before the effective date of the 1993 amendnents, held
that the 1990 version of HRS § 134-6(a) applied to their cases
and reversed their convictions of and sentences for the HRS
§ 134-€(a) offense. Id, at 191-92, 65 P.3d at 196-39.
The dissent argues that this covrt’s interpretation in
Ven den Berg of “proceedings” to clearly betoken the initiation
of @ criminal prosecution against the defendant is inepposite to
the present case becouse an aneliorative sentencing statute was
not at issue. Dissenting opinion at 20-23 6 n.24, The dissent
contends that it is the ameliorative nature of an amendment that
4 We noted in Yan den Bexe thet Gary Karagianes, one of the
Gefendents, yas charged and tried prior to the effective date of the 1992
enendnents, but sentenced after, and concluded that his “proceecings” hed
begun prior to the effective date, preventing application of the 1983 version
of HRS § 134-(a) to his case. 102 Hawai'i at 191, 65 Podd at 136, our
ise as it applied to Karagianes in Ven den Bera is
of particular Inport, norecver, because it represents this court’ only,
opinion of which we are amare, asice from Brilla, 69 How. S08, 750 Prod 78,
Giscussed iutzg, in which e einilar eavinge classe applied to legisistion
governing 2ucrinine prosecution initisted prigr to ah anenceent’s effective
'e but in which s sentencing hearing was conducted after the effective det
mirroring the procedural stance of the present matter fee Walkers 106
Hewei'i at 4-5, 100 F.3e at 586-99 (sefendant charges, pled ve contest, and
sentenced gricr to Act 44's effective date)? Feliciang, 103 Hawald at 27¢, 62
F.3d at 11E9 (gefencant incictes on Septenber €, 1894, sentenced on March 25,
1895, "and amencnents became effective Joly 20, 1958) +
ae
{7+-yoR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER 4+
determines whether retroactive application is available to @
defendant but fails to articulate how an unambiguous term can be
rendered ambiguous merely because the statutory provision urged
as applicable by the defendant is ameliorative.” See dissenting
opinion at 20-23, 33-37 (citing Koch, 107 Hawai'i st 221-22, 112
P.3d at 75-76; Avilla, 69 Hew. at 509, 750 P.2¢ at 787 State ws
Von Geldern, 64 Haw. 210, 212-15, 638 P.24 319, 321-24 (1982)).
In short, nothing in the Van den Berg analysis conflicts with our
conclusion in that case that “proceedings” unambiguously commence
with the initiation of a unitary criminal prosecution and the
various proceedings subsumed within it.
a
act_can create al where normal
none exists,
Tt is not the amelictative nature of statutory
provision that has prompted us in the past to construe the term
“proceedings” as meaning sonething other then the initiation of a
criminal prosecution but, rather, the unique subject matter of
the act in question. Avilla is illustrative.
2 he cincurned inte in section 121.8.3.b, Act 44" savings claus
apptice to all eines tt, Eetbuslng she neny amendments vo the avere’# arvp
ithe Chat sdatense panssimente: sno create iu crimes and iiseilicies.. Secause
thcee provisions sce not aueliorutive, the Gissent's position begs the
Gucctils wheter the Gefaule, plain language interpretstion of “proceedings”
In'van den Bers applies to. then er wretter ambiguity continues to exsat,
dtopite the lack of any anelioretive provisson st Seave in those prev
SuFfaneiyeie resvite in avclesner construct, co wit, (1) that the term
proceedings” Sn the = S triminal peovecvtsone, ge
wasn nese, sei 'mivell ot sty 02 2.5 nd [ey thse the tone
Eutciig-apeiies to'aii sections of het tt
Tloreevers Sp. fight ef the feregeing anslysse concerning th
anedicrative provisions at iseve in lan-gen Sela, the diesen’ s
Ge'ignete this sietinctaon, siseenting opinions: Si'nczb; se eutloves he ge
Nic'TGncse'the sistinction! se simply 'co'net conclude that $= fe dlapseitive
at
19
14% FOR PUBLICATION IN WEST'S HAWAT'T REPORTS ASD PACIPIC REFORTER +4
In Avilla, this court held that the ameliorative
amendments to HRS § 804-4 (1985) provided for in Act 138 of
1967" ~~ allowing bail to convicted felons while on appeal
were available to a defendant who was indicted prior to June 5,
1987, the effective date of the amendments, but whose motion to
continue bail pending appeal was heard and denied thereafter. 69
Haw. at $11, 513, 750 P.2d at 78, 81. Me so held, not because
the amendments were ameliorative,’® but because the subject
matter of Act 139 -~ which pertained solely to bail, its
injected ambiguity into
availability, and related conditions
the term “proceedings.” Id, at 512-13, 750 P.Zd at 60, We noted
that, while proceedings normally would mean “prosecutions,” in
the context of statute concerned solely with bail,
“proceedings” could also be interpreted as bail proceedings. \*
Id. at 512, 750 F.2d at 60. It was that ambiguity, and that
ambiguity alone, that led us to the relevant conmittee reports in
Me Ste 1987 ew, Seas. L. Act 239) $6 2-9 at 212-16. net 139,
section 10 contained 2 savings clause identical to the language in Act 44,
section 29.
Bait ths regard, the dissent oversinplifies the analysis in avila
When ic asserts that [t]hie court held thet, in ligne of the
Reture of the legislation, the term "proceesinge’ included 6
occurring atter the effective cate” of the act in question, ai
1. "igvuse first
anbiguous before the aneliorative
“ 1¢ dissent mischeracterizes the discvesion in Avilla as
recognizing “multiple” meanings of "proceedings." Dissenting opinion at 16
There vere, in fact, only tac, the presumptive reaning cf “prosecution” ane
the alternate “pei ’proceedinge” creates by the unique subject matter of the
act, 65 Haw. et $12, 750 F.2d at 60 (Proceedings, 8s employes in the
section of Act 139 in question, can mean prosecutions; bur within the context
of the statutes regulating the release of defendants on
bail proceessnge.
20
++ POR PUBLICATION 18 WEST'S HANAT'T REFORTS AND PACIFIC REPORTER +
order to determine that the legislature’s concerns in enacting
the measure could be addressed by allowing Avilla to benefit from
the amendments, Id. at $13, 750 P.2d at 80-81.
In Avilla, this court presupposed that the term
“proceedings” in the savings clause normally meant
“prosecutions.” Jd. at 512, 780 P.24 at 80. Insofar as Act 139
dealt exclusively with bail, the distinct nature of bail
proceedings!” wae sufficient to inject ambiguity into the term,
Avilla, 69 Haw. at 512, 780 P.2d at 60. Act 44, however, is
comprehensive legislation enacted to address the epidemic of
crystal methamphetamine use in the state, and includes sections
increasing penalties for exposing children to the methamphetamine
industry, inflicting injuries during its production, for ssles of
related drug paraphernalis, and for undertaking methanphetanine
production near a park or @ schocl. See 2004 Haw. Sess. L.
Act 44, $§ 3, 4, and @ at 206-10, 212. It amends penalties for
promoting the drug. Id. $$ $-7 at 210-11. It adopts a nore
» 952, proceedings are indeed separate and distinct in nature. See
wilder, 78 Wawel" ot 201, 900 F.20 at 777 (rhinen a convicted defencent is
fad on bail pending eppeal, the circuit court is temporarily without
intence that i the subject of the
defencant’s appeal; however, the circuit court nay enforce or modify the
Cenditione related to the defendant ‘on Beil penging eppesi.")s
Daxson v tanngn, 53 Maw. 76, €2-63, 468 Pozd 329, 399 (1972) (Beal
Fequirenente survive quathing of indietaent without prejudice during pendency
ef prosecution's sppeai)? Bates v, Gagia, $2 He. 575, 575-76, 462 P26 183,
Jéstse (1991) 1A boil hearing, ses nonsury proceeding, is limited in its
porpose and 1s not necestarily governed by “strict adherence to exclusionary
Foles of evidence" but, rather, “hearssy nay support 2 finding if in the eng
Nie ie the king of evidence on which responsible persons are accustomed to
rely in serious sffsire."") lgveting Net) Song fd. Beminct
foe Fa26 862) €73 (26 Cir, 1938) Nand, 3.1); Bates vs Hawkins, 52
Haws Ge3y- 460-70, 476 F.26 640, 843-44 (1970] ("(P)he bail nearing 32 not 8
fF guilt or innocence but ratner 9 determination cf the
ject the right tos Feasonable bail. Unless the accu!
Insists otherwise, it may well be coneucted scnewnat
abicavite.")
‘01 FOR PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REFORTER
treatment-oriented approach with respect to first-time offenders.
Ada §§ 9-12 at 212-15. It addresses tort Liebility for drug
dealers, insurance coverage for substance abuse, and civil
commitment and treatment centers for substance abusers. Ids
$§ 13, 18-22 at 216-19, 221-24. It supports citizen empowerment
in combating the drug. Id, $§ 24-26 at 225. In contrast to
Act 139 of the 1987 legislature at issue in Avilla, which dealt
solely with bail, see 1987 Haw. Sees. L. Act 139, passim at
312-16, no ambiguity is introduced by Act 44/s subject matter
that would lead us to question, as we did in Avilla, the standard
interpretation of “proceedings” as the initiation of a criminal
Prosecution. Cf. 69 Haw. at $12, 750 P.2d at 60.
Avilla, therefore, does not stand, as Reis contends,
for the proposition that this court construes the language of the
standard savings clause “in 2 manner that best effectuates the
underlying legislative intent and purpose of that particular
statute.” We resort to legislative history only when there is an
ambiguity in the plain language of the statute. Valdivia, 95
Hawai'i at 472, 24 P.3d at 668. Rather, Avilla stands for the
unremarkable proposition that, if a statutory amendment on a
single subject addresses proceedings other than criminal
Prosecutions -- and the numerous hearings subsumed within
criminal prosecutions, including hearings on evidentiary matters,
motions for reconsideration, and sentencing -- so as to give rise
to an ambiguity, the defendant may benefit from the amendment if
* We the:
axguendo, the term “preceesinge” in the savings 1
sreigueus " Dissenting opinion et 2
fore also decline the dissent’ invitation te “assuniel,
eis viewed as
22
+ FOR PUBLICATION IN WEST'S HAKAI'S REPORTS AND PACIFIC REPORTER ++
doing so would comport with the intent of the legislature as
reflected in the amendnent’s underlying legislative history.
b .
within the body of the amending sta
the contents ef the act do not apply.
retroactively,
It is important to note that in both Koch and Yon
Gelder, upon which the dissent relies, see dissenting opinion at
33-37, neither of the statutes at issue contained speci:
savings clauses, crucial fact that informed the discussion of
the underlying legislative history and the ultimate conclusion in
both cases that the ameliorative amendments could apply to the
defendants. See Koch, 107 Hawai'i at 221-22, 112 P.3d at 75-76,
(citing 2002 Haw. Sess, L. Act 161 at 568-75)? Yon Geldern, 64
Haw. at 215, 638 P.2d at 323 (citing 1980 Haw. Sess. L. Act 264
at 544-46). In both cases, only the general savings clause,
1 the digesnetion between the intent expressed by the general
savings cleuse, codifies at HRS § 1-, gee infra note 20, anc a specific
Savings cleuse enacted ae part of particular legislation, euch ae Act 44,
section 29, is erveisi te the analysis. The dissent seeks to conflate the
Ene, dissenting cpinion st 27-35, in an attempt to reduce the express,
inclusion of a sevings clause in'Act 4¢ = which by ies plain language bers
of Act ¢ == to @ nullity that hes no more import than
nd we Were confronted only with the general savings
S323. “Ta ge 4ses3. (queting He .
Seates, “€83 A.28 61, 66 (0.C. 1996)] [asserting “thot state courte ‘fevor()
Fetroactive pplication of anelicrative sentencing legislation despite a
General sevings statute’™ and that "the generic savings language in Section 29
Uepetlective of the ‘general sovings’ provisions in ARS §§ 1-3 and I-11")
(brackets in diecent). in the present meter, we are confronted with @
specific eavings clause, Les, @ savings clause epecificelly and purposefully
includes in z particular plete of legislation ae en exprescicn of Legislative
intent regarding that legitiseien, and the inport of tne distinction becones
cles! alter eneiysing the fereign case lew upon which the diseent relies, see
iniza.
23
FOR PUBLICATION I WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER **#
codified at HRS § 1-3 (1993),* presented an obstacle to
retroactive application of the anelicrative amendnents, and this
court concluded that HRS § 1-3 “‘is only a rule of statutory
construction and where legislative intent may be ascertained, it
is no longer determinative.’" Koch, 107 Hawai'i at 222, 112 P.3¢
at 76 (quoting Yon Geldern, 64 Haw. at 213, 638 P.2d at 322).
‘The foreign case lew upon which the dissent relies for
the purpose of bolstering ite argument that ameliorative
amendments must be applied retroactively, regardless of savings
clauses, dissenting opinion st 49-83 (citing People v, Schultz,
460 W.W.2d $05 (Mich. 1990); State v. Cummings, 386 N.W.2d 468
(W.D. 1986); People v. Oliver, 134 N.E.2d 197 (N.Y. 1956),
merely comports with our conclusion, appearing in Von Geldern and
Koch, that the existence of 2 genera) savinos clause does not
Prevent ameliorative amendments from being applied retroactively
Af euch application would conform to specific legislative intent
Givined from the statute itself or from legislative history
surrounding the specific statute in question.” See Koch, 107
Hawai'i at 222, 112 P.3d at 76; Yon Gelder, 64 Haw. at 213-14,
638 P.2d at 222; Schultz, 460 N.W.2d at 511-12; Cummings, 366
N.W.2d at 478 (concluding “that, unless otherwise indicated by
the Leaislature, an ameliorating amendment te @ criminal statute
= ons §
unless otherwise expr
Moreover, the dissent's rellence on Eecple vs Malker, 623 N.E.26 2
wey, contributes little to the ciscussicn, © Halker relies heavily on
Glines anc serely restates the anelicrative doctrine already recognized in
Hoch and Von" Geldern that, absent o specific savings cleuse, omelioretive
Snendnents can be applied retroactively. Sse id. at £6
any retrospective operation,
24
‘+8 FOR PUBLICATION 18 WEEE! KAWAII REPORTS AND PACIFIC REPORTER *
As reflective of the Legislature’s determination that the lesser
punishment is the appropriate penalty for the offense”) (emphasis
added); Oliver, 134 .N.£.2d at 201). None of the cases that the
dissent cites implicate a specific savings clause enacted as part
of the anelicrative amendments, as is found in Act 44, section
28, see supra note 1. Indeed, Schultz, Cumminas, and Oliver all
relied upon legislative silence regarding solely prospective
application within the four corners of the legislation at issue
in order to conclude retroactive application was implicitly
endorsed by the ameliorative nature of the amendments. See
Schultz, 460 N.W.2d at 509; Cummings, 386 N.W.2d at 470
(observing that the legislature did not “expressly state” whether
the new law or the old law would apply to offenses committed
before the amendments); Oliver, 134 .N.E.2d at 201-02." By
contrast, 2 specific savings clause, expressly contained within
the body of the amending legislation, is clear evidence of
Legislative intent thet the act “not affect rights and duties
that matured, penalties that were incurred, and proceedings that
% the cases cites by the dissent contain other infirmities. In
Oliver, the court applied emeiscrative anenanents toa defendant who had
ordered his tuo-yeat-old brother se 8 fourteen-year ele ane was indicted
three years pricr te the anendente, ruling that the defendant coulé not be
tried 2s an Sdvlt and, ence, could net be subject to the death penalty. In
applying the new lew, the court ressoned thet, sithough the legislature had
clearly provided that “[t]he repeal of any statute shall net affect
ny... offence committed. . prior te the tine such repes:
ofiect," 134 .£,26 at 200-04, the amelicrative amendment nevertneles
Lo the defendant, resscning thet the dissent characterized as "rewrit (ing)
statute eno supplyling) that which legielatures in their wisdom. . . refuse
es ids et 204, (Froesse2, ., Gissentine]- Moreover, the appellate
Courts of Michigan nave noted ch scversi occasions “that (Eeople wv. JSchultzl,
Geo News2e 508 ich. 1990) (plurality cpinien),) dig not garner «majority
ang ole not represent binding precedent” even 3° Michigan, Zeople v. Doxey,
G27 Now.2e 360, 363, IMich, Ce. App. 2004). gee also Peonle vy winnitield,
Dood wt 1978790 et € (Mich. Ct. App. 2004); Zeotle v. Tnenad, 618 N-W-Zo 631,
@37 nt ich. Ct, App. 2008)
to en
28
‘104 FOR PUBLICATION 26 WEST'S HAWAT'T REPORTS AND PACITIC REPORTER +
were begun, before its effective date,” i.e., that it not epply
retroactively, eliminating any justification for further
analysis. The dissent attempts to avoid the distinction when it
asserts that, in the instant case, “[aJs was the case in Yon
Gelder, Avillz, and Koch, here there is simply no express
indication thet the legislature desired to prohibit retrospective
effect to the remedial provisions,” dissenting opinion at 40
(emphasis omitted), but, in doing so, ignores the very real and
clear legislative intent represented by the inclusion of a
specific savings clause barring retroactive application within
the very body of Act 44.
2 <“ineure”
ion of an of;
This court has not previously had occasion to define
the plain meaning of the term “incurred,” as employed in the
standard savings clause, Nevertheless, courts in other
jurisdictions have analyzed the phrase “penalties incurred” in
the context of @ savings clause and have concluded that
defendant incurs the penalty at the tine of the commission of the
offense.” See McGranzhan, 206 N.W.2d at 91 (“The penalty is
imposed by the court after the fact of guilt is legally
Getermined. It is incurred when the act for which the law
Prescribed the penalty is conmitted.’) (quoting In re Schneck,
86 P. 43, 44-45 (Ken, 1908)); State v. Alley, 263 A.2d 66, 69
This Ss not to suggest that we pr
proven innocent bot, rather, that “[ujnder 9 saving classe cr stavutel,) the
‘tory rights end penalties are cetermined by the statute in effect at the
tine of the occurrence of the facts ang may De enforces after reseal if the
unéerlying facts are proves” later at trial. Matiiens, 10 A.28 e039,
rime the defendant guizty untéi
26
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
(Me. 1970) ("*Punishment, penalty or forfeiture is ‘incurred’
+ + + at the time the offence for which punishment is imposed is
conmitted.'”) (ellipses in original) (quoting Patrick v. Comm'rs
of Corr, 227 N.£.2¢ 348, 351 (Mass. 1967)); State v, Johnson,
402 A.2d 876, B80 (Md. 1979) (holding that 2 penalty is incurred
+ Commonwealth v.
Benoit, 191 N.£.2d 749, 781-52 (Mass. 1963) (concluding that
Massachusetts jurisprudence had settled since 1869 that a penalty
“at the time of the commission of the offense”
is incurred at the time of the offense, “emphasiz(ing) incurrence
resulting from the offender's wrongful act as distinguished
from any proceeding by public authority to impose the
consequences of the wrongdoing” and that “*[pJunishment incurred’
is not ‘sentence imposed,’ ‘conviction found’ or ‘judgment
entered’ ” and denying application of ameliorative amendments in
effect after the date of the commission of the offense but before
the issuance of the indictment) (quoting the applicable savings
clause); Schultz, 460 N.W.2d at $10 ("[I]t is clear that the two
defendants before this Court have incurred criminal liability for
which they may be punished . . . .”); Bilbrey, 135 P.2d at 1000
“*hold[ing] . . . that th[e] defendant was subject to any
penalty inposed by Jaw for this crime on the date of its
commission, and any subsequent statute repealing such penalty can
only operate prospectively, and is applicable only to offenses
committed after the statute took effect’) (emphasis added)
(quoting Benn v. State, 164 P. 992, 993 (Okla. Crim. Ap. 1927);
State v, Moore, 233 P.2d 283, 256-57 (Or. 1951) (concluding that
an ameliorative amendment was unavailable to the defendant,
‘*4 FOR PUBLICATION IN WEST’ HAWA'T REPORTS AND PACIFIC REPORTER +#*
insofar as he incurred the original penalty before the effective
Gate of the new statute, reasoning that “to have ‘incurred
penalties’ implies a time past cr present as to the act and
future time as to the assessnent of the penalty”); State ve
Eetrucelli, 592 A.2d 365, 366 (Vt, 1991) ("AS @ result of the
saving clause, a criminal irrevocably incurs liability at the
time of the offense: not even the repeal of the statute imposing
that Iability affects that liability."); State v. Senna, 321
A.2d 5, 6 (Vt. 1974) ("*Criminal Liability ds incurred when the
criminal act is conmitted.'”) (quoting Matthews, 310 A.2d at 20);
Matthews, 310 A.2d at 21 ("Defendant's penalty was ‘incurred’
when he committed the act."). But see State v. Tapp, 490 P.2d
334, 336 (Utah 1971) (concluding thet “no penalty is incurred
until the defendant is convicted, judgment entered and sentence
imposed,” thereby allowing aneliorative amendments to be applied
to a defendant who was tried and convicted, but not sentenced,
prior to the effective date of the act).
The dissent mates Zapp the centerpiece of its argument that @
defendant incurs the penalty of ah offense at the time the sentence 12,
imposed. Dissenting opinion st 27-30, In 20b, the defendant was dadicted
before the effective date of the anelicrative sentencing stetute But erica,
Eenvicted, and sentenced thereafter. 490 F.id st 335. Interestingly, the
Zapp court inplicitly concludes in analyzing very simile: savings clavee
Ehat “proceedings” do not encompass centencing proceedings when If conelsded
that *[t)he only wey [the] statute [in question] can apply to the preblen here
+ would be through its provision that. "(e)he repeal of a statute doe not
affect. . any penalty incurrea,'” 450 £.2d at 396 (queting the
applicable savings clause). In light of the fact that the cefendorts iike
Reis, was sentenced after the effective date of the anenanent, 420 F.2d e¢
535) "the Zaup court implicitly rejected the proposition thet @ sentencing
Proceeding wes severable proceeding that coule quality the defendant fer
Sentencing Under the new lax, be it termed retroactive or prospective
application, We aze ata lows, therefore, as te how thet reasoning supports
the dissent’s position that 2 ¢entencing preceesing can be s separate
Eroceesing for the purposes of the savings claure which dats quality the
Sefendant for sentencing under the neu leu, ae the Gissent araues. gee
28
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In our view, the reasoning of the foregoing authority
is conpelling.# Accordingly, we hold that a defendant incurs,
at the monent he or she conmits the offense, Iiability for the
criminal penalty in effect at the time of the conmissicn of the
offense.
3. “proces:
enspré stent not
avoids potentie) constitutional infirmity.
To interpret “proceedings” to mean any discrete hearing
pertaining te sentencing, motions for reconsideration, or
appellate review would, in practice, mean that the savings clause
would not operate to exclude @ defendant's case unless all stages
of @ prosecution and all appeals were entirely concluded prior to
the effective date of an amendment. Such a construction would
vitiate the very reason for enacting a savings clause, to wit,
(2) to delineate clearly which defendants fal1 under the new
H(, , continued)
dissenting opinion at 28-28 0.29.
Gh any case, the Tapp court appears to conflate the meaning of
“incur” ane “impose” and cites no authority supporting the conclusien that 9
pensity is, S Sincurred” at the tine of sentencing, gee
G50 Pode at SS7-58 (entied, Ju, dicsenting!. Moreover, ae discussed intra in
Section I1J.B.3.e, application of the Zeop role ultimately results in greater
Ineguities among defendant
% The dissent attenpte to distinguish the preceding foreign case lax
by characterizing it a5 either (1) concerning preventing abatement of criminal
prosecutions, {21 not involving aneliorstive statutes, or (3) drawn from
gislative statencnts of retroactivity.
sos, Insofar ae Act 44, section 29 by ite
plein longuage epplies to every section of Act (4, see supra note 1, the
Enterpretetion cf “incurree™ sleo implicates preventing abatement of criminal
prosecutions and most be enalyzed in ther light. oth the language of Act 44,
Etetion 2 ang SKS $ 1-3, see supra note 21, establish e presumption egeinst
Tetrosctivity and, regardless of the snelicrstive nature of amendnents, none
Sf the distinctions thet the dissent urges, in the end, explein why the plain
Seening of the term “incurred” should be equates with Cinposed,” particularly
Tehighe ef the policy considerations discussed intva in section 11.2.3.
Dissenting opinion,»
28
‘84 FOR PUBLICATION IN WEST’ § WAWAI'T REPORTS AND FACIFIC REPORTER +4
statute, in order to avoid producing inconsistent and unjust
outcomes among defendants arising from the vagaries of the
scheduling process, and (2) to avoid rendering portions of an
act -- Act 44 in the present matter -- potentially
unconstitutional es ex post facto measures. To construe
penalties as having been “incurred” only at the moment of the
imposition of sentence would similarly generate risks of
inconsistency and constitutional infirmity.
a se com
As the District of Columbia’s highest court hes
reasoned, in considering the application of aneliorative
sentencing amendments to defendant who committed the charged
offense prior to the amendment but was sentenced thereafter,
Iiele cannot say thet 2 legislature could net
rationally conciuce that the best approach would be @
purely prospective one, 0 that al! defendants who
Connitted crines before the statute become effective
would be treated equally. “Otherwise, sentencings
Could get caught up in manipulations with snfelt
Fesults overall. some convicted felons, for exemple,
night be eble to arrange sentencing deleys to cake
advantage of the new sentencing scheme, whereas others
Could net achieve the sane result before Te:
Sympathetic susges.
insivigaale shoul sn oreance i
‘Seaniccad a eresenyee see seime Os offen ak
‘aiatutes themselves,
Holiday v, United States, 683 A.2d 61, 72 (D.C. 1996) (emphasis
added). Adopting Reis's contention that “proceedings” is
ambiguous and could be construed to include sentencing hearings
a5 separate and distinct “proceedings” would invite just such an
arbitrary application.
30
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The result in Tapp, discussed supra in section 111.8.2
4 n, 24, S2lustrates the danger, In Tapp, the court reviewed
precedent regarding when @ penalty is “incurred,” citing, inter
alia, State v. Miller, 464 P.2d 644 (Utah 1970), and Belt wy
Turner, 479 P.2d 791 (Utah 1971). In those related cases, the
defendants, Miller and Belt, were each indicted for writing
fraudulent checks prior to the effective date of the same
ameliorative sentencing amendnent reducing the penalty, but one
of them, Belt, was convicted and sentenced after the effective
date while the other, Miller, was convicted and sentenced before.
wwiller vas subject to a felony with incarceration in State
Prison for upwards of 14 years, for doing the same thing, at the
same time, under the sane statute, with the same penalty, for the
same guilt, while Belt was subject to only six months,” despite
the fact that it was Belt who viclated parole and fled the state.
Papp, 490 P.2d at 33
that the majority's conclusion “sanctions such discrimination
8 (Henriod, J., dissenting) (asserting
under the illogical, unreasonable platitude and guise that ‘time
of sentence,’ -- not guilt . . . -- is of the essence”).
Moreover, the concerns expressed in Holiday have since been borne
out in Utah, where the Zapp rule has been extended to allow the
application of anelicrative sentencing amendnents to defendants
“even where the defendant's presentence misconduct resulted in
the defendant's sentencing being delayed beyond the effective
date of the anendnents.” State v. Patience, 944 F.2d 361, 385
(Utah Ct. App. 1997) (citing, inter alia, State v. Yates, 918
P.2d 136, 139 (Utah Ct. App. 1996) (noting that the “[Utah)
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FOR PUBLICATION IN WEST'S WAWAL'I REPORTS AND PACIFIC REFORSER #4
supreme court has determined (that the) defendant's actions that
delay sentencing are irrelevant” to receiving the benefits of the
amended sanctions)) .7
Nevertheless, the dissent insists that, by not applying
the ameliorative provisions of Act 44, section 11 to Reis’s case,
it is we who are being “arbitrary and unjust” and that our
decision runs counter to the general trend in other states.
Dissenting opinion at 49-82, $7-S8 (quoting In re Estrada, 408
P.2d 948, 981 (Cal. 1965)) (citing Schultz, 460 N.W.2d at $12;
Cummings, 366 N.W.2d at 472; Oliver, 134 N.E.2d at 203) State vy.
Macarelli, 275 A.2é 944, 947 (RI. 1977); Holiday, 6€3 A.2d at
66-68). Again, as discussed supra in section III.B.1.b, the
cases upon which the dissent relies implicate only general.
savings clauses, which, as this court itself has concluded in Yon
Geldern, 64 Haw. at 213, 638 P.2d at 322, and Koch, 107 Hawas'i
et 222, 112 P.3d at 76 (quoting Yon Geldern), represent a rule of
statutory construction that may yield, and often does, to more
express, specific intent regarding retroactive application of
ameliorative amendrents. See Schultz, 460 N.W.2d at $10
(concluding that the “historical and philosophical underpinnings”
of the state's genera] savings clause did not support barring
retroactive application of aneliorative amendments); Cummings,
“| Further to the foregoing, in In ce Delong, 99 Cel. App. 4th $2
discussed in the dissenting opinion et 2e-ze and intsa in note 2
nt twice moved successfully co have eentencing aelayesy the second
extension rescheduling her eentencing hearing te July 12, 200i, efter the
Duly 1, 200i esfective date of the aneliorative anendnents. 1d, at 260-65.
She filed = motion for sentencing under the new lew on duly 2 2002. 1d. at
B68, “By the reasoning in Delong, similarly situated defendante who accepted
their originel pre-July 1, 2001 sentencing dates dic not Denefit from the new
Io
32
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386 N.W.2d at 472 (concluding that the applicable general savings
clause “ie but © canon of statutory construction to aid in
interpreting statutes to ascertain legislative intent” and that
“[a]t 4s not an end in itself”); Oliver, 134 N.E.2d at 203
(concluding that the general savings clause has “been read by
this court to provide merely a principle of construction, which
governs in the absence of contrary intent”) (quotation signals
omitted); Estrada, 608 F.2¢ at 952 (characterizing the general
savings clause as “simply embod{ying] the general rule of
construction . . . that when there is nothing to indicate a
contrary intent in a statute it will be presumed that the
Legislature intended the statute to operate prospectively and not
retroactively[s] . . . [a] rule of construction, however, [that)
is not a streightjacket”); Macarelli, 375 A.2d at 947 (relying on
the unique wording of the general savings clause directing the
courts to lock to the record for legislative intent with regard
to specific statutes to overcome the presumption against
retroactive application).
However, a default presumption against retroactive
application remains alive and well both in our jurieprudence and
in the foreign jurisdictions that the dissent cites. See sau,
Taniguchi v. Assoc, of Apt, Owners of King Manox, 114 Hawai'i 37,
46, 185 P.3d 1138, 1149 (2007) ("[I]t is well settled that ‘all
statutes are to be construed as having only a prospective
operation unless the purpose and intention of the legislature to
give them 2 retrospective effect is expressly declared or is
necessarily implied from the language used.’") (quoting Robinson
33
OR FUELICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REFORTER +++
Ya Bailey, 26 Haw. 462, 464 (1925)); Kramer v, Ellett, 108
Hawai'i 426, 432, 121 P.3d 406, 412 (2005) (quoting Gap v. Puna
Geothermal Venture, 106 Hawai'i 325, 333, 104 P.3d 912, 920
(2004) ("*iswai" statutory and case law discourage retroactive
application of laws and rules in the absence of language showing
that such operation was intended.’”); Yon Geldern, 64 Haw. at
215-16, 638 F.2d at 323 (clarifying that “we are not suggesting,
as other courts have, see, e.c., . . . Estrada + Oliver,
that whenever sn amendatory statute is enacted... , it must be
Presuned that the legislature intended for it to apply in every
case where it could constitutionally apply” and reemphasizing
that “(w]here the intention of the legislature with respect to
retroactivity is incepable of ascertainment, the provisions of
HRS § 1-3 will determine the statute's interpretation");
Evangelatos v. Super, Court, 246 Cal. Rptr. 629, 642 (Cal. 1988)
(rejecting the characterization thet Estrada eroded the strong
presumption against retroactivity and asserting that “absen(t]
+ an express retroactivity provision, @ statute will not be
applied retroactively unless it is very clear from extrinsic
sources that the Legislature . . . must have intended a
retroactive application.”).
Therefore, insofar as the presumption remains against
retroactive application, the inclusion of a specific savings
clause within an amendment -- the polar opposite of an express
retroactivity provision -- must operate as clear evidence of the
legislature's intention that the act in question should apply
prospectively only. Indeed, where a specific savings clause has
34
FOR PUBLICATION IN MEBE'S HAWAI'I REPORTS AND PACIFIC REFORTER
been included in amendatory legislation, the general trend anong
the states nationally is, in fact, not to apply the anendnents
retroactively, even when they are ameliorative.
In People v. Floyd, 1 Cal. Rptr. 3d 685 (Cal. 2003),
the California Supreme Court refused to apply aneliorative
amendments requiring probation and treatment for certain drug
offenders where the amendnents took effect before the defendant's
conviction was final, relying on the language of a savings clause
included as part of the emending statute.” 1 Cal. Retr. 3d at
886-87. It concluded that the rule of Estrada allowing
retroactive application for aneliorative amendments did not apply
when the amendnents in question contained @ specific savings
clause, adding thet “[wle cannot embrace an interpretation that
makes [the specific savings clause] mere surplusage.” Id. at
ge7, 889. Similarly, in State v. Parker, @71 So. 2d 317 (La.
the savings clause read “[elxcept as otherwise provided, the
provisions of this act shall become effective July 1, 2001, and sts’ provisions
Shall be applied prospectively.” 1 cal. Rptt. 3d et’ 686.
* Eloud stance for the proposition that the presence of s snecitic
savings clause enboaies clear legisistive intent that anelicrative snenanents
be unaveilenie £0 defendants who were sireacy in the sycten pricr to the
effective date of the act in question but whose convictions were still not yet
Hing) efter that ate. Id. et e6)-89, Therefore, insofar as the proceecings
against Reis and Floyd began prior to the effective date of the relevant.
aneliorative smendnents, the Feasoning of the Californie Supreme Court is
Clearly not “inapposite” to our present analysis concerning the effect of the
specific savings Clause contained in Act 4é, section 29, despite the dissent’s
attempts te reduce it to “mere surplusage,” ig, at £68." See dissenting
Spinien at 24,3733,
Joan sttenpe fo distinguish Floyd, the dissent cites e Celifornie
appellate eciescn from two years earlier, in re belong, 93 Cal. App. sth $62
{2001}, discussing the same Celifcrnia state Proposition. Dseeenting opinion
at 24-26. The conclusicn in Delong, however, thet. the snencuente
ailable to the defendant hinged oh the term “convicted,” which the court
Concluded was ambiguous, leading the court to interpret the term so that it
Bete cenperted with the underlying purpese of the amendment. 05 Cal- App, éth
st s€7-e8, The Delong ceurt alee relied upen the fect thet the enelicrative
Teent inved
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FOR PUBLICATION 30 WEST'S HAWAI'Z REPORTS AND FACIFIC REPORTER +++
2004), the lower appellate court attempted to apply to the
Gefendant’s case aneliorative amendments to the state’s habitual
despite @ specific savings clause that
Provided that “the provisions of this Act shall only have
offender statute
Prospective effect” -~ by relying on the fact that the hearing in
which the lower court “found” that the defendant was an habitual
offender occurred efter the amenduent’s effective date. 871 so.
24 at 324. The Loui
aneliorative sentencing amendments (a) in light of the existence
ena Supreme Court (1) refused to apply the
of @ specific savings clause and (b) becaus
jon of the court schedule for the benefit of individual
Gefendants end (2) noted that, “had the legislature intended the
it sought to prevent
manipu:
more lenient sentencing provisions to be inmediately effective,
it could have signified that intent in the Act.” Id. at 322-23
(citing State v. sugasti, €20 So. 24 518, 520-21 (La. 2002);
State v. Dreaux, 17 So. 24 $59, S60 (Le. 1944)). The Washington
Supreme Court reached the same conclusicn in State v. Ross, 95
F.3d 1225 (Wash. 2004), wherein st rejected the defendant’ s
argument that state precedent required that ameliorative
amendments apply retroactively. Id, at 1232, 1234. The court
instead concluded that, by including a specific savings clause
(. . continued}
onendnents were, by the express provisions cf the proposition, else available
fo both individbels alreacy sentenced to probation end those on parcle, and
the court could discern no rationale for denying the Benefit of the new la to
hore recent defencents. "Jé at 569,” By contrast, in the present matter, we
Fecognize no corresponding ambiguity in the term’ “proceeding” arising from
Act 4472 subject matter and de fot confront in Act 44 8 similarly broad
extension of its snelicrative proviesons to those other than newiy-indicted
Gefendante, The legislature, by including the specific savings clause i
Act dé," section 2, expressed an intent thet the snelicretive amendments, be
unavailable to defendants indicted before duly 3, 2004
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FOR PUBLICATION IN WEST'S HAWAI'S REFORTS AND PACIFIC REPORTER *#*
that provided that the amendments in question “apply to crimes
committed on or after July 1, 2002," the state legislature had
expressed the opposite intent, j.e., that the aneliorative
amendments applied only prospectively. Id, at 1234. Indeed, @
number of other jurisdictions have refused to apply aneliorative
amendnents retroactively, even when only general savings clauses
were implicated. See, e.g., State v. Vineverd, 392 P.2d 30
(aria. 1964); State v. Ismascel, 840 A.2d 644, 655 (Del. Super.
Ct. 2004) (citing Holiday, 683 A.2d at 78-79, for its concern
that to conclude otherwise would bestow a “windfall” on
defendants whose sentencing proceedings had been delayed and
concluding that “[j]ust es the State will not surprise a
defendant with greater punishment in an ex post facto fashion,
neither should a defendsnt feign surprise about the penalties
that accompanied his [or her] conduct at the time”); Castle v.
State, 330 So. 26 10 (Fla. 1976); Tellis v. State, 445 P.2d 938
(Nev, 1968); Bollard v. State, 521 P.2d 400 (Okla. Crim. App.
1974); State v. Kane, § P.3d 741 (Wash. Ct. App. 2000). Our
decision today is not, therefore, out of step with the
jurisprudence of other states, nor is our analysis of specific
versus general savings clauses, despite the dissent’s
disparagement of the distinction, dissenting opinion at 50 n.S1
(discussing the “so-called specific savings clause in Section
29").
‘4 TOR FUBLICATION IW WEST'S HAWAI'I REPCRTS AND PACIFIC REPORTER
bo B in
atl whi
We must also interpret the language of the savings
Clouse to preserve, if possible, the constitutionality of the
statute. Kamal, @8 Hawai'i at 294, 966 P.2d at 606.
Interpreting the savings clause such that any hearing conducted
after the effective date could be considered a separate
Proceeding or that the defendant has not incurred the penalties
set forth in Act 44 until the date sentence is imposed could
expose some provisions of Act 44 te constitutional challenges.
This court has stated thet
[s)he 2x post {acta classe of the United states
ConatsEvtion[,) 0-8. Const. arte 1, 6 10, ef Il.)
pronibite states from enacting retforpective penal
Fegisiation
tn 437 U8. 37 (1590),
the United states Supreme Court was presented with’ the
question “shetner the application ef'e fexes statute,
hich was passed after respondent's crine and tanieh
Slloved the reforneticn of an improper jury veraice in
Fespondent’« case, vieiatele) the Ee Boa
Sabse ia 20138." In summerszing the
nesning of the ex Bist Zatic clause, the Court stated:
cit is settled, by decisions of this Court
so well knows that their citation may be
Gispenses with, that any statute (1!)
whieh punishes ae a crime an act
Previously committed, which was. innocent
when done[, (2)] which maxes nore
Burcensone’ the punisiment for a crine,
after ite comission, o [(3]] which
Geprives one charged with [a] crine of any
Gefense available sccording te lew at the
Eine when the act war connstted, te
Prohibited as gx post [acte-”
Hg, St 42 (quoting seazell v. ohic, 269 0.5. 167,
168-70 (1925)). “the Eeageil formulation is faithfur
fo our Dest knowledge of the original understanding of
the Bx Fest Facto Clause: lesisiatares say aot
incresse the punismen nee
64
(ier) tne new
496 POR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER +1
ve neesure may be applied to 0 crime already
Ecnewnnsted . ; Such legislation would be [an] ex
post facto awi.i").
State v. Nakata, 76 Hawai'i at 375, 878 P.2d at 714 (emphasis in
original) (foctnote and sone citations omitted) (sone brackets
added and some in original) (some underlining omitted in
original).
By ite plein language, the savings clause set forth in
section 29 applies to the entirety of Act 44. See supra
note 1. Act 44, section 3 provides for enhanced penalties for
exposing children to the process of manufacturing or distributing
methamphetamine, as well as new penalties for injuries to others
arising out of the manvfacture or distribution of the drug.
See 2004 Haw. Sese. 1. Act 44, § 3 at 206-08. If “proceedings”
and “incurrec” aze interpreted te allow pplication of Act 44 to
a defendant charged before July 1, 2004 but sentenced thereafter,
the provisions of Act 44, section 3, as an example, if properly
pled and proven, could be susceptible to challenge as
unconstitutional ex post facto measures because, at sentencing,
they would (1) “punish[] as a crime an act previously committed,
1 the dissent recegnizes the ex post facke danger of many of
Act 44"s provisions, e danger acaressed 6) the inclusion of the savings
ise, diesenting opinion at 44-45, but it appears to argue (1) that the
Sevings clause deee not spply uniformly to Act 4 and (2) thet the
Interpretation of the terme of the clause cen shift depending on the punitive
Ure cf the anendnent. Specifically, tne dissent esserts
t]he Act, es noted previously, substant:
related te drug possession, trafficking, and manufacturing. |The
‘Inge Clause here wae ef a generel nature obviously inciuded to
Prevent the 4x Dost {acto spplicetion of those penalty provisions.
Ads at 45 (footnote omitted) «
38
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which was innocent when done{, or (2)] . . . make[] more
burdensome the punishnent for a crime, after ite commission,”
Collins, 497 U.S. at 42.
4. The lecisleture unambiguously int bs
defendants shose Seininel pemeet ee ‘commenced
pricr to July 1, 2004,
The language of Act 44, section 29 does not present us
with a situation “[w)here the intention of the legislature .
is incapable of ascertainment,” Yon Geldern, 64 Haw. at 215, 638
P.2d at 323. Rather, we must presune that the legislature knows
the law when enacting statutes, Agustin v. Dan Ostrow Constr
Go, 64 Haw. 60, 83, 636 P.2¢ 1348, 1351 (1961) ("the legislature
is presumed to know the law when enacting statutes,” including
this court's interpretations of statutory language), and, hence,
we must presume that the legislature, in enacting Act 44, was
aware (1) of this court’s interpretation, in Yan den Berg, 101
Hawai'i at 191, 65 F.3d at 136, of the term “proceedings” as
being synonymous with the 4
tistion of a prosecution through the
analytical
issuance of criminal charces and (2) of the cruci
role the absence of @ savings clause played in Koch and Yon
Geldern; yet the legislature nevertheless chose to include a
savings clause that plainly states that its provisions do not
apply to proceedings begun prier to July 1, 2004.”
= hile there is no dispute thet the legislature, in enacting
Act 44, intended to give the lower courts nore discretion in applying
probation end eccess te drug trestnent in lieu cf inprisonnent, that intention
is not motvally exclusive with the act's savings clause, which, ae
Gencnstrated above, plainly affords that increased ciseretien prospectively to
ew viclatione eceurring after uly 3, 200¢
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‘The preceding analysis, in sum, leads to the conclusion
(1) that “proceedings,” absent ambiguity arising from subject
matter peculiar to the legislation, means criminal prosecutions
of which sentencing hearings are an inseparable conponent™ and
(2) that the legisleture did not intend to allow the sentencing
provisions of Act 44, section 11 to apply “prospectively” to a
sentencing hearing conducted after July 1, 2004, which resulted
from 8 criminal prosecution initiated prior to that date.
Therefore, we hold that the term “proceedings,” as employed in
Act 44, section 29, unambiguously means the initiation of a
criminal prosecution against a defendant through a charging
instrument and subsumes within its scope hearings and other
procedural events that arise as a direct result of the initial
charging instrument.
% The conclusion that sentencing is an inseparsble stage in the
progression cfs onitery criminal prosecution ie one shared by the Unites
States suprene Court. See Bradley states, 410 U.S. 605, 609 (2973)
(noting thet, "IiJn che legal sense, a prosecution terminates only when
Sentence is imposed” end conclusing that s defendant who committed drug
Stfences pricr to the effective date of an eneliorative sent
Soeld set’ eveil hinsel! of ite terme Geepite his conviction and
Sceurring after the effect date of the snencnent)
Harrere, 41? U.S. 683, €57, E56 (1974) (reiterating the
Court tela that sentencing is part of the concept of ‘prosecution’” and
Sfeasoned that, gince es . Gecieson to meke oh offender eligible for early
parole is sce’ at the tine of entering e jucgment of conviction, the decision
Kor pert of the sentence and therefore algo part of the ‘prosecution'”);
Heligay. 663 Ac2d st 72 (*(2)he [United States Suprene] Court confirmed in
Enudla: thet sentencing is part of the prosecution; the sentence is not part
bie subsequent, severable proceeding. ”)~
The cisvent seserts thet the preceding suthority is “inapposite” because
the savings clause at issue in Bradley and Warrere interpreted the term
Sprosecstiens” and fot “proceeding geenting opinion et s-10.p.
hector ee we have Gencrstreted thet thie court, in Yan cen Berg, interpretes
‘proceedings” to unambiguously betoken the initiation of eriminel
prosecutions, see supra st 16-19, it follows thet United States Supreme
Precedent interpreting “presecutione” to include sentencing proceedings
Eneeversble preceedings part end parcel of any prosecution is far from
Unepporite but, Father, quite persuasive,
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Hence, because Reis was charged on January $ and
Rpril 13, 2004, prior to Act 44’s effective date of July 1, 2008,
the circuit court erred in applying Act 44’s anelioretive
amendments to her sentence by feiling to observe the statutory
command of Act 44, section 28, Aplaca, 96 Hawai'i at 22, 25 F.2d
at 797. Furthermore, in keeping with this court’s holdings in
Smith, 103 Hawas's at 234, 61 P.3d at 414, and Walker, 106 Hawaii
at 10, 100 P.3d at 604, and insofar as Reis conceded that she
qualified as a repeat offender under HRS § 706-606.8 in Light of
@ prior conviction of unautherized control of a propelled
vehicle, the circuit court could net sentence Reis to probation
Pursuant to HRS § 706-€22.5 (Supp. 2002), the first-time drug
offender statute in effect at the tine of the comission of her
offenses. Rather, the circuit court was required to apply HRS
$ 706-606.5 to sentence her to a mandatory minimum sentence of
one year and eight months. § —
FOR PUELICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER ***
Iv. CONCLUSION
In light of the foregoing, we vacate the Janvary 11,
2008 judgrent and sentence of the circuit court, sentencing Reis
to probation, and remand for resentencing as 4 repeat offender,
pursuant to HRS § 706-606.5 (Supp. 1999).*
on the briefe: Gogo
Loren J. Thonas,
‘Deputy Prosecuting Attorney, tH ate
for plaintiff-appellant
State of Hawai’
Pras Creat eve,
stephen 7. Niwa,
Deputy Public Defender,
for defendant-appellee Yne Duchy
Susan Reis
% tn ight of our dispceition, we need not reach the prosecuticn’ ©
argunert, sez gugre section I1IUA.3, ascerting that the seperete nature of
fela'a tue Grug-relétes offentes prevented the circuit court from sentencing
RECS Ercesticn es « firet-time Orog offencer, purevent to HRE § 706-622.
Sopp. 2006).
43
|
1e4cdd7d-316f-45e2-b77e-43dcefdfe22d | Sugarman v. Bews | hawaii | Hawaii Supreme Court | AW LIBRARY
No, 26642
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
JOSEPH SUGARMAN, Fea
Fetitioner/plaintiti-appeliee/Cross-appeltenes)
vs. ¥ Ss
. Sf 4 2
son wews, wavr surLoERs, inc, Tap SE
Fetitioners/Defendants-Appeliees/Cross-Apreiizes, 2
Ey 2
an je
6 ~
Dor.
JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10,
DOE ENTITIES’ 1-10, and DOE AGENCIES 1-10,
CORPORATIONS 1-10,
Defendants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 01-1-0064(3))
(By: Nakayama, J., for the court")
Petitioner/Plaintiff-appellee Crose-Appellant Joseph
Sugarman’s application for writ of certiorari filed on June 28,
2007, and Petitioners /Defendants-Appellees/Cross~Appellees John
Bews and Maui Builders, Inc.’s application for writ of certiorari
fled on July 2, 2007 are hereby rejected.
DATED: Honelulu, Hawas's, August 8, 2007.
FoR THE couRT: {FF
h
Peaseate bbe re.
Associate Justice
John 8. Simpson for
Petitioner Joseph Sugarman
on the application
Peter Van Name Esser for
Petitioners John Bews and
Maui Builders, Inc.
on the application
Levinson, Nakayama, Aecbs, and Duffy, JJ.
Considered by: Moen, C.2.,
|
fb9a5310-cbdc-4dab-8f2d-0b1b0ba876df | State v. Ball | hawaii | Hawaii Supreme Court | No. 27843
3
=
STATE OF HAWAI'I, Respondent /Plaintitt-Appeliee
MERRIE CHRISTINE BALL, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CITATION NO. 3D7I-06-101004)
DER REJECTINt
PLICAI wa
(By:
Acoba, J., for the court")
‘The Application for Writ of Certiorari filed on June 5,
2007 by Petitioner/Defendant-Appellant Merrie Christine Ball is
hereby rejected.
DATE!
Honolulu, Hawai'i, July 17, 2007.
FOR THE COURT:
Merrie C. Ball, petitioner/
defendant-appellant, pro se,
on the application.
considered by:
dutty, 39.
Moon, €.J., Levinson, Nakayama, Recba, and
qn
|
3e381395-6d1b-435a-a0df-02fbba18ccf3 | State v. Tunoa | hawaii | Hawaii Supreme Court |
No. 27756
IN THE SUPREME COURT OF THE STATE OF HAWAy'?
63]
STATE OF HN, eepondent/PLeits tt pope
EMANUELU TUNOA, ake ELU, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-0721) 1
zc or
RR
(By: Duffy, J., for the court’)
Petitioner/Defendant-Appellant Emanuelu Tunoa’s
application for a writ of certiorari, filed on June 19, 2007, is
hereby rejected.
DATED: Honolulu, Hawai'i, duly 12, 2007.
FOR THE COURT:
Yor €. Bute rr
Associate Justice
Linda C.R, Jameson
for petitioner/defendant-
appellant on the application
Hoon, C.J. Levinsen,
2
=
m
o
|
09e9cae4-1974-4f90-9312-14051e449c95 | Jou v. Government Employees Insurance Company | hawaii | Hawaii Supreme Court | NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
No. 26311
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
EMERSON M.F, JOU, M.D. and as to Some Claims, on Behalf of the
Class of Others Similarly Situated, Plaintiff-Appellant,
GOVERNMENT EMPLOYEES INSURANCE COMPANY, LARRY M. REIFURTH,? BSQ.,
DIRECTOR, Department of Commerce and Consumer Affairs,
Defendants-Appellees,
Te woe
and
JOHN DOES 1-10, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS Wal an‘
DOE ENTITIES 1-10, Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 02~1-1603-07)
alenny! oz
(ey: Moon, c.d., Levinson, Wakayama, Recba, and Duffy, 39.)
Plaintstf-Appellant Enerson M.P. Jou, 4.0. (*¥eu")
appeals from the anended judgment of the Circuit Court of the
First circuit? (Tedreuit court”) filed on Decenber 10, 2003. on
appeal, Jou raises five points of error: (1) the eireuit court
erred in granting efendant-appellee Government Exployees Ins.
Co.'s (hereinafter “GEICO") motion to dismiss, or, in the
alternative, for summary judgment;? (2) the presiding judge, the
Honorable Gary M. 8. Chang (hereinafter “Judge Chang"), exred by
refusing to disqualify himself upon Jou's actions (3) the efrcuit
court erroneously denied Jou’s motion to amend his second amended
» og, PUtANE to Nawas"t Roles of Appellate Procedure ("HRAP*) Rule
43(c) (2000), Lawrence M. Reifurth has been substituted acs party to the
instant appeal in place of Mark £. Recktermald, in his officiel capscity.
+ the Honorable Gary W. B. Chang presided.
specify whether it was tresting or
ary jodgnent or for dismissal.
> the eizeult court is
ruling upon the motion es one for
aaa
TT NOTFOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER °°°
complaint; (4) the circuit court erred in granting the Defendant-
Appellee Lawrence M. Reifurth’s (in his official capacity as
Director of the Dep't of Conmerce and Consumer Affairs, State of
Hawai'i) (hereinafter “the DCCA Director”) motion for summary
judgment or dismissal, which the circuit court construed as a
motion for sunmary judgment; and (5) the final judgment appealed
from does not comport with the requirements of Jenkins v. Cades
Schutte Fleming & Wright, 76 Hawai'i 115, 869 P.2d 1334 (1994).
Additionally, the DCCA Director, within its Answering
Brief, moves for damages and costs under Hawai'i Rules of
Appellate Procedure ("HRAP”) Rule 38 (2000) on the ground that
Jou's appeal is frivolous.
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 as follows:
(1) With respect to Jou’s fifth point of error,
regarding the existence of this court's appellate jurisdiction,
we hold that the December 10, 2003 amended final judgment
complied with Jenkins. 76 Hawai'i at 119, 869 P.2d at 1338.
Thus, we have jurisdiction over the instant appeal.
(2) With respect to Jou’s first point of error, the
circuit court did not err in granting GEICO’s motion, which was
Gencminated as being for dismissal or summary judgment. Because
the record reveals that matters outside the pleading were
introduced on summary judgment which were expressly considered by
the circuit court in making its ruling, we note that GEICO’s
‘WRAP Rule 38 provides: “If a Haxas't appellate court determines
that on appeal decided by it was frivolous, it may, after a separately filed
otich of notice from the appellate court and reasonable cppertunity te
respond, snare darages, inciusing reasonable attorneys’ fees and costs, to the
appellee.”
bead eet er TA ZEEE sees set tt Sea
motion was converted into a motion for summary judgment. See
@.a., HRCP Rule 12(b) (2000); Gamino v. Greenwell, 2 Haw. App.
59, 62, 625 P.2d 1055, 1058 (1961); and Au v. Au, 63 Haw. 210,
213-14, 626 P.2d 173, 176-77 (1981). Upon careful review, we
discern two cognizable contentions by Jou: that (a) Jou should
have prevailed on his abuse of process claim, and (b) this
court’s decision in Moss v, Am, Int'l Adjustment Co., Inc., 86
Hawai'i 59, 947 P,2d 371 (1997) did not serve to preclude hin
from filing a lawsuit in circuit court.
We first hold that summary judgment in favor of GEICO
was proper as to the abuse of process claim. See e.a.,
Orthoredic Assocs. of Hawai'i, Inc. v. Hawaiian Ins. & Guar. Co
Ltd., 109 Hawai'i 185, 194, 124 P.3d 930, 939 (2008). We discern
neither any ulterior motive nor any wilful act for the purpose of
misusing or otherwise manipulating the State Department of
Conmerce and Consumer Affairs’ ("OCCA") Insurance Division's
administrative hearing process via GEICO seeking (in 2000) a
declaratory ruling as to whether formal written denial of claim
notices ere required to be sent to a provider of services (e.g.
a physician) where a submitted no-fault insurance claim is
approved and paid, but where a dispute between the insurer end
provider of services with respect to the proper amount payable
remains, See Wong v, Panis, 7 Haw. App. 414, 420-21, 772 P.2d
695, 699-700 (1989), abrooated on other grounds by Hac v. Univ.
of Hawai'i, 102 Hawas's 92, 105-07, 73 P.3d 46, 59-62 (2003).* In
that 2000 administrative declaratory proceeding, involving GEICO
as petitioner and the DCCA as respondent, the hearing officer
* See slec, eae, Haxai's Revised Statutes (“HRS”) §6 431:10¢-206
supp. 2000) end # ‘Supp. 2000 & Supp. 2006) (with respect to the
HAWAII REPORTS AND PACIFIC REPORTER
answered in the negative, and in doing so expressly reaffirmed a
preexisting advisory opinion by the Insurance Commissioner which
took the same position on the same subject matter in 1999.
Thus, not only was there no abuse of process as a matter of law,
there was also nothing GEICO could have obtained by initiating
the dectaratory proceeding, inasmuch as (1) the Insurance
Commissioner had already issued his advisory memorandum opinion
to all insurers on that issue months before GEICO initiated the
declaratory proceeding, and (2) for all intents and purposes, it
was the Insurance Commissioner, the original proponent of the
position, and not GEICO who ultimately “benefitted” from the
formal ruling on the matter. Accordingly, Jou’s contention that
he should have been granted sunmary judgment on his abuse of
process claim is without merit.
As to Jou's other contention, that Mose was
inapplicable to the instant case, we hold to the contrary. The
key Moss-related issue in this case, as pointed out by both the
circuit court and GEICO, was Jou’s having concurrent proceedings
before both the Insurance Comissicner and this court (in the
instant case), where both proceedings concerned medical claims
submitted as to the same ten patients. Jou did not and does not
discernibly contest or otherwise challenge the circuit court's or
GEICO’s understanding that Jou's initiated proceeding before
circuit court in the instant case was concurrent with the
administrative proceeding and also arose from the sane dispute.
+ solely in parsing, we cbserve, but do not hold of ctherwise find
er decide, that in any event, Jou's 1999 soministrative proceeding sn the
Insurance Divieicn adjudicated partially in hie favor war not affected by the
Geclaratery ruling "obtained" by GEICO, because it appeare from the record
that no payment determination or requect for information was ever issued By
GELCOae to specific subset cf clains submitted by Jeu.
4
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER.
And in the absence of any such challenge, this court declines to
sua sponte second-guess the circuit court’s understanding that
Jou’s circuit court lawsuit was concurrent and based upon the
same subject matter. Further, after careful review, we hold that
Jou has not presented any cognizable argument with respect to
either (1) whether the instant case and Moss involved
fundamentally different types of claims such that Moss was
distinguishable, or (2) Jou’s contention that Hawai'i agencies
have no jurisdiction to hear claims sounding in tort. See e.a.,
HRAP Rule 28(b) (7) (2004); Hawai'i Ventures, LLC v. Otaka, Inc.
, 2007 WL 1346603 at *29 (May 9, 2007); and Kienker
Ye Bauer, 110 Hawai'i 97, 104 n.12, 129 P.3d 1125, 1132 n.12
n+ P.3d -
(2006). Thus, we affirm the circuit court’s grant of summary
judgment in favor of GEICO.
(3) Regarding Jou’s second point of error, Judge Chang
did not abuse his discretion in declining to disqualify or recuse
himself from the instant case. See Found, Int'l, Inc. v. ET
Ise Constr., Inc., 102 Hawai'i 487, 503, 78 P.3d 23, 39 (2003)
(quoting State v. Ross, 89 Hawai'i 371, 375-76, 974 P.2¢ 11,
15-16 (1998)); Office of Hawaiian Affairs v. State, 110 Hawai's
338, 351, 133 P.3d 767, 780 (2006). We find no colorable
argument or record support from Jou establishing such an abuse of
discretion, and therefore Judge Chang's denial of Jou’s motion to
disqualify him is affirmed.
(4) Regarding Jou's third point of error, the circuit
court did not abuse its discretion in denying Jou’s motion for
leave to amend his second amended complaint. Office of Hawaiian
Affairs, 110 Hawai'i at 351, 133 P.3d at 780. On appeal, Jou
does not challenge the circuit court's express oral finding of
+++ NOT FOR FI
UBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER,
“unreasonable delay” in Jou’s bringing the motion for leave to
amend. Such a finding of delay is a specific exception to the
general rule that leave to amend a complaint should be freely
given, Triz$ Corp, v, WW. World Ins, Co., 110 Hawai'i 473, 490,
135 P.3d 82, 99 (2006). Accordingly, the circuit court’s motion
Genying Jou's motion for leave to amended his second amended
complaint is affirmed.
(3) Regarding Jou’s fourth point of error, the circuit
court did not err in granting summary judgment in favor of the
DCCA Director. In his second amended complaint, Jou challenges
the OCcA’s jurisdiction to hear “controversies involving issues
relating to automobile insurance” by seeking a declaration that
certain agency rules are invalid. However, the DCCA, as a
creature of statute, derives its jurisdiction from legislative
enactment, not agency rule.’ As such, Jou’s thirteenth claim is
without 2 valid legal basis. Thus, the circuit court’s grant of
summary judgment in favor of the DCCA Director is affirmed.
(6) Jou's remaining arguments (those not addressed
above) are waived for (a) lack of legally cognizable argument
and/or (b) lack of demonstrated or apparent nexus to Jou's five
points of error. See HRAP Rule 28(b) (7), Hawai'i Ventures and
Kisnker, supra.
(7) The DCCA Director's motion for damages and costs
for frivolous appesl under HRAP Rule 38 is denied.
‘Therefore,
Hee, gia, HRS § 26-9 (Supp. 2006) (establishing the DCCA! HRS §
431:2-101 (1983) [establishing the Insurance Division within the DOCAl; RS §
4 2 (Supp. 2000) (establishing the office of the insurance
Ceanissioner);'ané HRS $ 431:2-201 (Supp. 2003) (setting forth the general
Poners and cuties ef the Insurance Conmiseicner!
6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
IT IS HEREBY ORDERED that (1) the Decenber 10, 2003
anended judgnent of the circuit court is affirmed, and (2) the
DCCA Director’s HRAP Rule 38 motion for damages and costs is
denied.
DATED: Honolulu, Hawai'l, July 26, 2007.
on the briefs:
Stephen shaw, for
Plaineifiappellant
Emerson M. Fe Ou, M.D.
Kathy K. Higham, (of Kessner ERC nse —
Duca Unebayashi Bain &
Mateunaga, A Law Corporation)
for Defendant-Appellee Pretec CNet re
Government Employees Ins. Co.,
Inc. (ON
David A. febber, Deborah Day
Pactson, Eases depety Ynca
Attorneys General, for tbo we
Sefenuene-Appeiiee
Penrence Me Resfuren,
Innis efticiel capacity as
Dizectors Dep't of Comerce
tnd Consimer Affaire, seete
|
50031218-a930-4cee-b5a4-4706a1dd0989 | State v. Matavale. Concurring Opinion by J. Acoba [pdf]. Dissenting Opinion by J. Nakayama, with whom J. Duffy joins [pdf]. ICA s.d.o., filed 08/15/2006 [pdf], 111 Haw. 204. S.Ct. Order Accepting Application for Writ of Certiorari, filed 12/21/2006 [pdf]. S.Ct. Order of Correction, filed 09/14/2007 [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAMAT'E
000
STATE OF HAWAT'T, Respondent /Plaintiff-Appellee/
Cross-Appellant,
ve.
3)
TIBVA MATAVALE, Petitioner /Defendant -Appellant ga)
Cross-Appellee. Be!
| ony con
No. 27476
=
y
s
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR. NO, 5-1-1397)
AUGUST 14, 2007
CONCURRING;
MOON, C.J., and LEVINSON, J.; ACOBA, J.,
JOINS
NAKAYAMA, J., DISSENTING, WITH WHOM'DUFFY, J.,
OPINION OF THE COURT BY MOON, C.J.
On December 21, 2006, we accepted petitioner/defendant-
appellee Ijeva Matavale’s (Mother) timely
appellant /cro:
application for writ of certiorari (application), filed on
November 27, 2006, requesting that this court review the August
29, 2006 judgment of the Intermediate Court of Appeals (ICA),
entered pursuant to the August 25, 2006 summary disposition
2 Te should be noted that, although the dissent chai
opinion as “the plurality,” the concurring opinion clearly ag
iyi regarding the first iseue discussed herein.
Been decided by a vnajerity.~
aan
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
order. Therein, the ICA affirmed the Family Court of the First
Cixcuit’s? August 5, 2005 judgment, convicting Mother of and
ntencing her for the offense of abuse of family or household
members, in violation of Hawai'i Revised Statutes (HRS) § 709-906
(supp. 2005).”
In her application, Mother argues that the ICA gravely
erred in affirming her conviction inasmich as: (1) insufficient
evidence was adduced to rebut her parental justification defense
under HRS § 703-309(1) (1993), quoted infra; and (2) the trial
court erred in instructing the jury to continue deliberations and
directing the jury to a previously-promulgated instruction on how
to go about in ite deliberations, after the jury had indicated
that it was deadlocked. Respondent /plaintift-appellee/crose-
appellant State of Hawai'i (the prosecution) did not file a
response to Mother’s application.
For the reasons discussed below, we vacate the ICA's
August 29, 2006 judgment and reverse the trial court’s August 5,
2005 judgment of conviction and sentence.
‘The Honorable Patrick M. Border presided over the underlying
proceedings
+ MRS § 709-806 provides in relevant part that *[iJ¢ shall be unlawful
for any person, singly or in concert, to physically abuse @ family or
housenoid wember [|
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
1. BACKGROUND
AL The Tria:
on April 25, 2005, Mother was charged by way of
complaint with one count of abuse of family or household menbers,
in violation of HRS § 709-906, for “intentionally, knowingly or
recklessly [causing] physical (] abuse" to her fourteen-year-old
daughter (hereinafter, Daughter]. A jury trial commenced on
August 2, 2005 and lasted three days, until August 4, 2005. ‘The
following evidence was adduced at trial.
Daughter testified that, at the time of the incident on
April 15, 2005, she was fourteen years old and living with
Mother, her step-father, and five eiblings. Daughter was
attending Castle High School and was in the fourth and final
quarter of her freshman year. In the first two quarters of
Daughter’s freshman year, she was receiving low grades, including
two Fe. As a result, Daughter and Mother discussed what was
causing the low grades and how Daughter was going to improve
them, to which Daughter “suggested [that she) should go to
tutoring,” and Mother agreed. Daughter began attending the
tutoring cla
6 three times a week at the end of January.
However, by February, Daughter was only attending the class once
a week and started to “hang out” with her friends at the mall.
By March, Daughter attended tutoring classes “{nJot as much" and
“only when [she] needed help with a specific item.” Daughter was
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
not keeping up with her homework and continued to “hang out" with
her friends at the mall.
Nonetheless, Daughter led Mother to believe that she
was attending tutoring classes through February and March
specifically, Daughter testified that:
@. (By Defense Counsel:) During thie period of tine
when youl #eopped going eo tutoring, Uie., the nonth of
Bebrasey,| you"told your non that jou were still going eo
fakorig?
er
Ay [By Deughte
G. okay... . And during thie tie in Mazch you were
seit. Ee1liag your som that you were going to tuoring?
(emphasie added.) The third quarter ended after spring break in
March. At the beginning of April, Mother began to question
Daughter as to when she would be getting her report card for the
third quarter, to which Daughter responded that she was unsure as
to the date. Mother testified that:
1X reminded her from Monday{, ies, April 22, 2008/1
Spon‘ forget your report card.” You know I'm looking
forward to see[ing] these grades cone Up."
3 was looking forward because of her request to go to
tutoring. As a mom, Tvant to see chose grades (go) up for
her(-]
on Friday, April 15, 2005 (the date of the incident),
Daughter received her report card and found that she “didn’t do
too well.* Daughter, thus, “purposely left (her report card] in
school" even though she knew that Mother was waiting for her
grades. That afternoon, Mother picked Daughter up from school,
along with her brothers and sisters who were talking about their
report cards, in the family van. Mother Grove to Kaneohe
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Elementary School, where she and Daughter waited in the parking
lot while the other children attended Kunon (L.e., tutoring)
classes. Mother remained seated in the driver's seat, and
Daughter sat diagonally behind her in the second row seat of the
van. While waiting in the van, Mother asked to see Daughter’ a
report card, and Daughter answered that she forgot it at school.
Mother testified that, at that monent,
(ile sy mind|, Twas thinking) how could youl, Le,
Daughter,] forget ail along. T've asked [her], you know.
resinded [her] on Monday. i reminded her again on
Wednesday, and Friday came.
iim gitting in the driver's seat. I'm thinking, “How
could this be? How could you forget the report card?"
S0\then 1 ask{ed] her again, “How could you forget
your report card, (Daughter)?~ You know I'm looking forward
to seeing you ~- your grades."
ibaughter] didn’t respond right away. I say, “So tell
ne vhere if your Feport card?" "AE school." “where at
School?” "in my social studies textbook.”
init “chat monent (,) 1 tried to put two and two
together. S0'I'm saying -- 50, I. - - asked her = =
purpoely left it there?” And’ the
Signe say’
So r'eald her, “Piet
co touch base with ne[-l"
Je tell me the truth, I want you
Mother stated that Daughter eventually told her the truth, and,
at Mother's request, Daughter wrote her grades down on a piece of
paper, indicating that she received “four C's, one D and one 1,
iue., an incomplete. Mother testified that she was ‘very
worried" because she “didn’t know if [Daughter] was going to pass
(her classes] or not.”
Nother began questioning Daughter as to why there had
been no improvement of her low grades. Daughter refused to
*** FOR PUBLICATION ***
West's Hawai'i Reports and the Pacific Reporter
anawer. Daughter's testimony reveals why she refused to answer
Mother's quest ion:
©. Igy Defense Counsel:] okay. And at first you on’e
answer her{,] right?
‘a. [By Daughters) Wo.
O: okay. "On, mom {8 asking you for answers and you're
pot answering ber?
ae tes.
@ Okay. Un, seems ike nom's getting a little bit
frustrates?
Re Dahan. Yes.
. Okay. Um, and Le Se aie
A. Yeah,
0. Sovnon is asking you now, um, because you're
stalling, ‘are you lying to me?"
ctu not to anewer
Q! ckay. and were you in fact lying to her?
x. ves.
0. Okay. So mom asks you, “what about the tutoring?"
Right?
@! Okay. and -- and you told her that you were etill)
going £0 tuearingl.) right?
° You weren't answering her immediately
every Eine he asked you a question(,] right?
Bo hor
0: Okay. You were kind of stalling?
B! Yes
Q. Okay. Um, stalling for a long period of tine?
BI vee
Q: Okay. Because you didn’t want to answer her?
R! Yes
@! okay. Um, and that’s when mom disciplines youl.)
right?
A. Yes.
According to Daughter, because Daughter was sitting diagonally
behind Mother in the van, Mother could not reach Daughter easily
and used a plastic backpack (belonging to Mother’s younger
daughter), which was about sixteen inches by twelve inches in
size and contained a school folder and a jacket, to hit Daughter.
Daughter, however, used her left arm to block the backpack.
Mother testified that she was trying to hit Daughter’s leg in
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
order to get her attention: “I'm aiming to her to respond to me.
‘come on. You're not - you're not, um, touching base with me.’*
Mother continued to denand to know whether Daughter had
been attending the tutoring classes, to which Daughter finally
answered “no.” Mother then demanded to know where Daughter had
been going inetead. Daughter refused to answer, and, thus,
Nother tried to hit her with a plastic hanger, aiming at
Daughter's thigh. Mother testified that she began hitting
Daughter with the hanger because Daughter “wasn’t responding" to
her questions. Each tine, Daughter blocked the hanger with her
left arm. Daughter estimated that she was hit approximately five
times on the left forearm and upper arm.
Daughter finally told Mother that she had been hanging
out with her friends at the mall instead of going to the tutoring
classes. At this point, Mother “got more frustrated," “thought
that [Daughter] was dishonest," and “felt deceived.” Mother
picked up a “small car brush,” which was about four or five
inches long, and hit Daughter once on the top of her left hand
with the flat eide of the brush. Mother then hit Daughter once
on the knuckles with “the plastic handle" of an unspecified tool.
Mother indicated that she believed she had “to teach [her]
daughter @ lesson, to get back on the right track." Mother
testified that:
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E didn’t know it vas -- it was wrong, but 1 di¢ it for =
purpose, “I just wanted the best for my daughter. 7 tele
That she was’ going off the wrong track. Um, 1 felt that she
heedea to get back on the right path, Un, i don't kaow her
whereabouts to where che say, I don’t know who she made
contact with. I felt that she vas taking the risk of, um,
Complacence.
cli "em a 26/7 som, 1 support -- 1 support my kids a
Jhundred percent. Un, I just wanted the best for [Daughter]
spd =" because, ‘un, this school year was coming close to an
Us, 1 juct wanted her -- and hopefully that she would
tai grad
Daughter testified that, on the date of the incident,
her left “arm was red and. . . had. . . a few markings from the
hanger." Daughter further described the markinge ae “just lines"
and ‘small . . . like the size of a pencil (1ine}* with “tiny
epote of purplish-greenish." then asked whether Daughter “could
«tell from the way that (MJother was hitting [her] how hard
she wae hitting{,]* Daughter responded “not that hard, but it did
cause me pain.* With respect to the level of pain experienced
upon being hit with the various implements, Daughter specifically
teatified:
@. [By the Prosecutor!) Okay. Uh, 80 let’s talk about
fixat when [Mother] vas hitting you with the backpack. Dia
that hare?
7. (By Daughter:) Unban. When it hit ay arm, it
tinged, but after, no,
(. Okay. On'a scale from one to ten, uh, one being
@idn’t really feel it, ten being very painful, ‘how paints
would you say that waa?
Kote backpack?
©. the backpack,
K. mmm, Evo, three.
9: okay. Moving on to the plastic hanger, uh, did --
when Mother] "hit you with She plastic hanger, you said four
itive tines?
“id that hurt?
A. ua, at that point, yes.
0: And, “uh, on & scale from one to ten, how painful
was thse?
A. Mme, Sour, five.
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9. Okay. Un, che car brush. You said -- you
testified (ehat Mother) mit you on the band with that. Did
chat hore?
Be Now,
0) Teaiga’t nure?
he
@: Okay. And what about the, uh, the tool?
A. tm, “not really.
(Euphases added.) Daughter also stated that ehe was (at the tine
of trial on August 2, 2005) 5/4" or 5/5" and weighed about 150 or
184 pounds. When asked whether Mother vas taller, heavier, and
stronger than she, Daughter responded affirmatively.
As previously indicated, the incident occurred on a
Friday afternoon. That night, Daughter perforred her normal
household chores, i.e., helping to cook dinner and washing the
dishes. on Saturday, Daughter went to a family lv'au; on sunday,
she went to a family gathering/dinner at her grandmother's house
on Monday, Daughter asked Mother whether she was going to school,
to which Mother indicated in the negative after looking at
Daughter's left arm. On Tuesday and Wednesday, Mother let
Daughter decide whether she was going to attend school, and
Daughter decided to stay hone.
on Thursday, April 21, 2005 (six days after the
incident), Daughter decided to return to school. Apparently, a
teacher or counselor spoke with Daughter, which led to the police
being called to the echool. Honolulu Police Department (HPD)
officer Darryl Lee responded to the call from the school. He
testified that he “net with [2 Castle High School] staff| menber,
who] took (him to see Daughter] and. . . instructed [him] that
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[Daughter] had visible injuries and . . . that she was abused by
her mother." Officer Lee related that, upon meeting Daughter, he
waked her if she had any injuries. she said that she had
bruises on her forearms -- on her left forearm. And so I looked
at the injuries and asked her how she got it, and she said it was
from her mother." He then proceeded to take two photographs of
Daughter's left arm, which photographs were admitted into
state:
evidence ai Exhibits 1 (picture of Daughter’s left arm)
em). Officer
and 2 (a close-up picture of Daughter’s left fore
Lee identified state's Exhibits 1 and 2
accurately
representing the injuries he observed on April 21, 2005. When
asked by the prosecution whether he noticed anything in the
state’s Sxhibit 2, Officer Lee responded “[t]he bruise on her,
un, left shoulder area.* On cross-examination, however, Officer
Lee testified to the following:
@. [By Defense Counsel:] . . . (Ylou didn’ actually
see any, uh, yelling, screaming, any kind of incident?
‘Rhy Oeficer Leet] No. T'- 1 didn't witness the
“Q. okay. Um, and -- let's see. You took photos of
‘chat you did eee?
And you didn’t see any other injuries?
"Wo scratches
he.
Okay. No fractures?
Ko.
; Okay. Um, and, um, when you met with (Daughter! ,
wasn’t crying?
oe St the tine.
Okay. Un, she wasn’t angry?
Ua, ho.
ror¥orororopoper
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@. Okay. She wasn’t hyaterical?
Ri xe:
9. Chay. Um, and you offi
Q: She ‘retueea?
ed to get her medical
With regard to the two photographs taken by Officer
Lee, the prosecution questioned Daughter as follows:
Q. [By the Prosecutors] Looking at State's Exhibit 2,
(Daughter], ‘what are ve looking at here?
"h. (ay Daughters] Un, my upper are.
@: okay. And, um, at about right in the center of --
alot the center of State's Exnibie 2, there seems to be
Sone redness and discoloration. What are we looking at
there?
A. Us, right here?
9. Yes.
Us, a small brulee.
@! And Below chat, to the lower portion of state's
mxbibit 2, there seens to be another eimilar marking. what
‘a. The fame
Q: "The sane" meaning another email bruise?
B. veah
@: (ooking at pictures -- uh, the markings on
your am in State's Sxhibite 1 and 2, vou said that they
(Bnphases added.) In addition, Neil Nishikawa, a social worker
employed at Child Protective Services (CPS), who was assigned to
investigate the circumstances surrounding the incident, testified
that:
(Basically, [Mother] said that, uh, she -- she, um, was
Eaiking with [Deughter] about school, that, um, she waa ~
Chat the nature I guess of the conversation crcated = lot of
stress, and she just lost it fore moment and she hit the
Girl. ‘Us, she has since apologized. she hat since, un =
Gnd ivve talked to the girl, and the girl also felt safe at
hone, bo we didn't puree the case at that point~
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Further, when asked by defense counsel whether his decision not
to remove Daughter from Nother’s home was based upon his finding
that the home was safe and that Daughter wi
fe being with
Mother, Nishikawa answered in the affirmative.
Mother was also asked about her meeting with Nishikawa.
Specifically, Mother testified:
©. [By the Progecutor:] You admitted co. [tiahtkawa)
that you felt sorry for what you did on the isth; dent that.
Fight?
A. (By Mother:] I -- r admittedly, um, told him that
what T dig, it —- it hurts me co do that to my daughter
(Q. Now aia you have any bruises ~~
X! Excuse me.
Q. =" From that day?
A. No. “IE hurte me, sy feelinge, not physically.
Q. okay. And you felt sorry; Fight?
A. Te hurt me that I'had to take that route to teach
say daughter s lesson.
(@- You had to take that rout
A. Dhave tried other options. Didn't work. I don't.
enink fe asa:
And Mr. Nishikawa testified that you told hin
‘a gtressfu2 situation which you admitted you
ed; correct?
Re Twas frustrated.
0. Okay. And then you lost control a Little bit.
‘That’e what you told Mr. Nishikawa, tent it?
‘A. Uh, T iost_a little control. T'-~ yet
At the close of the defense’s case on August 3, 2005,
the trial court gave the jury general instructions, including the
instruction contained on page 16 of the jury instructions, which
reads:
A verdict must represent the considered judgnent of
each juror, and in order to return s verdict, it is
Recestary that each juror agree thereto. In other worde,
your verdict must be unanimous.
Bach of you mist decide the case for yourself, but it
4s your duty to consult with one another and to deliberate
vith a view to reaching an agreenent, if you can do #0
Without violating your individual judgnent, in the cours
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of your deliberations, do not hesitate to re-examine your
Own views and change your opinion if convinced it is
erroneous. But do not surrender your honest belief ae to
the weight or effect of evidence for the mere purpose of
returning a verdict.
‘he trial court further instructed the jury on the elements of
the offense of abuse of family or household menbers, as contained
in HRS § 709-906, and the parental justification defense in HRS
§ 703-309(1).
on the eae day, after closing argunents, the jury
deliberated for two hours before being excused for the day.
After less than three hours of deliberation on the next day,
August 4, 2005, the jury sent “Communication No. 1,* stating:
vWe are in @ deadlock decision. What next?* The trial court’s
proposed response -- “Continue your deliberations. see page 16
of the instructions" -- was objected to by the prosecution. The
prosecution, relying on State v. Fajardo, 67 Haw. 593, 699 P.2d
20 (1985), believed that the more proper response was “Would more
time assist you in. . . reaching a unanimous verdict?" Defense
counsel, on the other hand, objected to any response, contending
that the jury had indicated a final position that they were
deadlocked. Nevertheless, the trial court instructed the jury as
proposed, i.#., “Continue your deliberations. see page 16 of the
jury instructions.” Approximately two hours later, the jury
indicated that it had reached a verdict, finding Mother guilty as
charged.
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On August 5, 2005, before sentencing, Mother renewed
her motion for judgment of acquittal,‘ which was denied. Mother
then moved for a mistrial, arguing that:
Your Wonor, this is in response to the communication
umber one from the Jury which indicated that, un, hey were
Ena deadlock decision. Defense objects to the court's
Snetruceions because it anounced to sa Allen
instruction *) which gave the jury an impre
deadlock was not an appropriate cutcome to
believed that no further response was necessary.
‘The trial court denied the motion for a mistrial and imposed
sentence of two years probation with two days’ imprisonment. The
judgment of conviction and sentence was entered that same day,
August 5, 2005. On Septenber 1, 2005, Mother timely filed a
notice of appeal.©
c. Appeal Before the Ick
on appeal, Mother raised two points of error, to wi
(2) the trial court erred in convicting her becauee the
prosecution failed to prove beyond a reasonable doubt that
Mothers discipline of Daughter was not inminized by the parental
justification defense codified in HRS § 703-309(1); and (2) it
+ At the close of the prosecution's case-in-chief, Mother had orally
noved for 2 judgeent of acquittal, whics motion wae denied.
© An Allen instruction is traditionally understood a8 an instruction
to work towards unanimity by considering the views of othere when a jury hat
Yeached an impasse in sts deliberations." fodrique: y. Marshall. 128 P38
739, 750 (9th Cir, 1997) (citation omitted) »
, Payton v. Woodtord, 299 7.34 615 (Sth Cir, 2002)> The case that
Gives the instruction ite nane is , 164 U.S. 452 (1896).
‘Allen v. United states,
nie court specifically rejected the use Of the Align inetruction in Palards
7 Haw. at 601, 699 P.24 ae 25
“on September 13, 2005, the prosecution filed its notice of cross-
appeal, challenging the trial courts order pertaining to bail pending appeal.
However, the issue is not before this court.
we
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was reversible error for the trial court to instruct the jury to
continue with its deliberations after it had declared it could
not reach @ unanimous verdict. On August 15, 2006, the ICA
iwaued ite summary disposition order, affirming the trial court's
Auguet 5, 2005 judgment and sentence. Specifically, the ICA
resolved Mother's points of error as follows:
2, (Mother] contends the {prosecution} adduced
insufficient evidence et trial to lsprove her parental
(justification) defence. Tala point lacks serit, There ae
substantial evidence to support the jury's verdict. State
; 81 Hawar't 132, 135, 139, 913 P.2a 5, 61, 65
(ise).
For her other point of error on appeal, [Mother]
contends the (erlal) court comitted ‘reversible error” by
Instructing the Jury te continue deliberstions and directing
the jury te a previcusly-promilgsted instruction on how £0
Go about ies deliberations, after the jury had indicated it
as ung. He disagree
Pitee, a plain reading does not reasonably raise the
inference that the instruction "directes the jury to matters
Gutside the evidence presented,- [Mother's] opening Brief at
32, or “inplicitly led the jury to believe it'was held
hostage by the coure until a verdict was agreed on." Id. at
ie. oe, State v. Villesa, 72 Maw. 327, 335, 617 P.24 1054,
30Se (a9s1) ("it was error for che trial court co instruct
the Jury that Le must unanimously decide that Le wae unable
ko reach @ verdict:
‘Second, the instruction cannot be reasonably
Anterpreted a2\"a subtle form of the Allan eharge(-]*
Opening Brief at 23. Ck, Sate 1. Faiarda, 67 Haw. 99,
Gbo-01, 699 P.24 20, 26-25" (1965) [error to give the Jury an
Allen charge -- that a deadlock means the case sust be
Fetries, and that minority jurors should reconsider in Light
of their status as such).
Finally, the {trial} court’s response to the jury's
report of deadlock was consonant with the relevant case lav.
"Hed the trial court simply repeated an instruction given
earlier to the jury on how to go about ite deliberations, we
feel that no prejudicial effect vould have befallen
Imother].*" 1d, at 601, 699 P.2d at 28 (footnote omitted)
See also Villeza, 72 Haw, at 335, 637 P.zd at 1058-59 (when
the jury advised the court chat it vas unable to reach a
verdict, the trial court properly exercised its discretion
Tn determining chat the jury might not be “deadlocked” and
by providing ehe Jury with a complete set of the Jury
instructions")
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othe instructions, when considered as a whole, were
not prejudicially insufficient, erroneous, inconsistent, oF
misleading,” id, at 353, 617 P.2d at 1057. (citations
oaitted), and thus the (trial) court properly fulfitied te
Sobligation to exexeise ite broad discretion to obtain
verdict from the jury." Id. at 333, 817 P.ld at 1086
(Gitation omitted)
(original brackets omitted.) Subsequently, on August 29, 2006,
the ICA entered its judgment on appeal. Mother timely filed her
application on November 27, 2006, which this court granted on
Decenber 21, 2006.” Oral argument was held on April 24, 2007
um. sm REVIEW
AL Wed of Certiorar:
This court reviews the decision of the ICA for
(2) grave errors of law or of fact or (2) obvious inconsistencies
in the decision of the ICA with that of the suprene court,
federal decisions, or its own decisions. HRS § 602-59(b) (Supp.
2006) .
B. Sufficiency of Evidence
ie have long held that evidence adduced in the trial
court mist be considered in the strongest light for the
prosecution when the appellate coure passes on the lege)
Bufeiciency of such evs ‘conviction; the
jane standard applies whether the case was before a judge oF
a-jury.. The test on appeal is not whether guilt ie
Zablished beyond s reasonable doubt, but shether there was
tential evidence to support the conclusion of the trier
din a bench trial
of fact. indeed, even if ie could be
Chat the conviction ie against the weisnt of the evidence.
‘a5 long as there ie substantial evidence te support the
Hequisite findings for conviction, the trial court will be
affirmed
1 We pernitted the parties to file supplenental briefs on the sole
issue “whether the [trial ‘clourt comitted reversible error uhen it instructed
the jury to continue deliberations and directed the jury to a previcusly-
promulgates instruction after the jury had indicated that it vas deadlocked.~
Nother filed a supplenental brief, which expanded on the argument expressed in
her application, on February 20, 2007. The prosecution did not file =
supplenentel brief
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yeubecantial evidences 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 reasonable caution to support a conclusion, And ss trier
of fact, the trial judge is free to make all reasonable and
Fational inferences under the facts in evidence, sncludieg
cizcunstantial evidence.
State v. Batson, 73 Haw. 236, 248-49, 631 P.2d 924, 931 (1992)
(citations omitted)
ar. SION
As previously stated, Mother maintains that the ICA
gravely erred in affirming the judgment of conviction and
sentence wher
(2) there was insufficient evidence to prove
beyond a reasonable doubt that Mother's conduct was not justified
as parental discipline; and (2) the trial court issued what
amounted to an Allen instruction after receiving a communication
from the jury that it wae deadlocked.
A, Sufficiency of Evidence and the Parental Justification
Defense
Mother does not dispute that she used physical force
upon Daughter. However, Mother contends that the evidence
proffered by the prosecution was legally insufficient to disprove
her defense of parental discipline. As such, Mother believes
that her conviction for abuse of family or household members was
not supported by sufficient evidence. We agree with Mother.
Preliminarily, we recognize that “an appellate court
will not overturn a conviction by a jury if ‘viewing the evidence
in the light most favorable to the [prosecution], there is
substantial evidence to support the conclusion of the trier of
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fact.‘” State v, Moniz, 92 Hawai'i 472, 992 P.2d 741 (App.
1999), cert, denied, 92 Hawai'i 472, 992 P.2d 741 (2002) (qucting
State v. Matias, 74 Haw, 197, 207, 640 P.24 374, 379 (1992).
However, this court has, on numerous occasions,
‘sa:, Gtare 2 Basanga, 93 zee, 2
+ 230 (2000) ; State v. Bautista, 86 Havel"! 207,
8'p.2d 1048, oss (1987); stake Z, Malufau, 60
326, 133, 906 P.2d 612, 619, vacated in parton
other crouids, 60 Hawai'i 126, 906 ?.2¢ 612 (1995)) Skate v.
Eucke, 56 aw. 129, 152, 531 P.24 ess, ase (2975).
State v. Jones, 96 Hawai's 162, 180, 29 P.3d 351, 370 (2001)
(emphasis added)
We begin our analyeie with the well-established
principle that "parental rights are of constitutional dimension."
Inxe Doe, 99 Hawai'i 522, 522, 57 P.3d 447, 457 (2002). A
parent's right to direct hie or her child’s upbringing has found
protection in both the federal and Hawai'i constitutions. See
Ad. at 932-33, 57 P.3d at 457-58; Wisconsin v. Yoder, 406 U.S.
205, 213-18 (1972); Bierce v, Soc'y of the Sisters of the Holy
Names of Mary, 268 U.S. 510, 534-35 (1925); but
see Sveaney v. Ada County, Idaho, 119 F.3d 1365, 1391 (sth Cir.
1997) (although a parent has a privilege to use reasonable oF
moderate physical force to control behavior, there is no absolute
constitutional right to strike a child). The state, however, in
the interest of protecting the child's welfare, has a right to
Limit parental freedom in raising their children. Prince v
Massachusetts, 321 U.S. 158, 165-67 (1944). To this end, our
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ee
legislature has carved out a law, i.e., HRS § 703-309(1),
recognizing a parent's privilege to exercise physical control
over a child go long as it does not result in harm to the child
As originally enacted, HRS § 703-309(1) (1985) provided that:
‘me use of force upon or toward the person of anc!
ip justifiable under the following circumstances:
(2) the actor is the parent or guardian or other
Person similarly Pesponeible for the general
Care and supervision of @ minor, or a person
scting at the request of such parent, guardian,
Of other responeibie person, and:
a) ree ie purr
fatequarding or promotina the welfare of
She einer, ineiuding the prevention or
Sstleiment of his misconduct, and
(») ‘The force aed is not_desianed to cause or
news £o-creste 2 substantial righ of
Sausing death. serious bodily iniuny.
Sistiauresent= exttene pain or mental
‘Sistrese. or arose deavacation.
(Gmphases added.) The commentary to HRS § 703-309(1) indicated
that the statute “sete a fairly simple and unexceptionable
standard; the right of parents to use force to discipline their
children is recognized, subject to clear requirements not to
cause permanent injury." (Emphasis added.) Moreover, HRS
5 703-309(2) (1985) is derived from and is identical to section
§ 3.08(2) of the Model Penal Code. Compaxe HRS § 703-309(1) with
Model Penal Code § 3.08(1) (1965); see genexally Conf. Comm. Rep.
No. 1, in 1972 House Journal, at 1035, and in 1972 Senate
Journal, at 734. Specifically, the drafters of the Model Penal
code set forth the following comments regarding section 3.08(1):
‘The formation ja in some reapects less_atringent than that
in'Gection i47 of the Reptatement of Torts, which ebeaks of
be Sressonabl Bes =
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E 2 -
To require belief in necessity to avoid criminal conviction
was thought to be too extrene, Parente my defensibiy us
force less on the basis of « judgnent of neceseity than
simply with the belief that it is an appropriate preventive
Or cofrective measure. ‘Hence,
exercising parental authority aces for the mipose of
sees sof oF put uct
stantial ox ries
™ ation ale from ent in
believed that eo long asa parent Uses moderate force for
permissible purposes, the criminal law should not provice
for review of the reasonableness of the parent's. Suagnest.
of course, even ifs statute includes language about
necessity ‘or Feasonableness or both, it would be
extraordinary for a parent using moderate force for 2
Permissible purpose to be prosecuted because of alejudgnent.
Tous ,] the less stringent language of the Model Code is
unlikely to make a great practical difference, but it does
suore accurately refiect the latitude that is actually given
to judgeente of parente in disciplining their children
State v. Kaimimoky, 9 Haw. App. 345, 351-52, 841 P.2d 1076, 2079-
80 (1992) (quoting Model Penal Code § 3.08, Comment (1979)
(format altered) (some emphases added) (some emphases omitted) .
In other words, the original HRS § 703-309(1) granted “to parents
considerable autonomy to discipline their children, and[,] as
long as parents use moderate force for permissible purposes in
* Restatement (Second) of Torte § 147 (1965) provides that:
(2) & parent is privileged to apply such reasonable force or
£0 impose such reasonable confinement upon his child ae he
reasonably believes to be necessary for ite proper control,
training, ‘or education.
(2) One other than « parent who has been given by law or hae
voluntarily assuned in waole or in part the function of
controlling, ‘training, or educating « child, ie privileged
to apply such reasonable force or to inpose such reasonsble
confinenent as he reasonably believes to be necessary for
Ste proper control, training, or education, except in to far
the parent has restricted the privilege of one whon he
‘entrusted the child.
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disciplining their children and do not create a substantial risk
of the excessive injuries specified in subsection (1) (b), they
wi11 not be criminally liable.” Id. at 352, 841 P.2d at 1080.
In Kaimimoku, the trial court found the defendant -
father's use of force against his seventeen-year-old daughter
unjustified under HRS § 703-309(1) (1985) and convicted the
father of abuse of a family or household member. 9 Haw. App. at
348, 841 P.2d at 1078. In that case, the father slapped his
daughter on the face and punched her shoulder, leaving a scratch
and a bruise, and causing some pain of unknown duration. Id. at
347-48, 641 P.2d at 1077. The father testified that he used
force on his daughter to punish her for yelling profanities at
him, disobeying him, and being disrespectful. Id. at 352, e842
P.2d at 1080. The daughter admitted that she yelled profanities
at her father and did not obey him when he told her not to do so.
Id.
In reversing the father’s conviction, the ICA
determined that the elements of the parental justification
defense contained in HRS § 703-309(1) (1985) had been met, to
wit: (1) the father was undisputedly the parent of the daughter;
(2) “{t}here [was] no evidence on the record that [the fJather
struck (his dlaughter for any purpose other than for punishment’;
and (3) the force used was “not designed to cause or known to
create a substantial risk of causing death, serious bodily
injury, disfigurement, extreme pain or mental distres
or gros:
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degradation.” Id, at 32, 642 P.2d at 1080 (internal quotation
marke and citation omitted). In reaching ite concluaicn that the
force used was within the bounds afforded to the father aa a
parent, the ICA relied upon state v. Deleon, 72 Haw. 242, 813
P.2d 1362 (1991).
In Deleon, the defendant-father waa convicted of abuse
of family or household menbers upon the trial court’s finding
that he was guilty of causing ‘extrene pain," a prohibited result
under HRS § 703-309(1) (b) (1985), when he struck his fourteen
year-old daughter with a folded belt. Id. at 242, 013 P.2d at
1383. The undisputed facts revealed that:
The daughter testified that her father cold her every day
not to have her friends to the house. even so, (the
Gaughter’s) friends were usually there when [the father)
cane hone fror work.” (The father] had told [the daughter]
that if she Violated the house rules, he would spank her
with @ belt.” Nevertheless, according to her testimony, she
Getiberately brought her friends hone every day
‘on the day in question, [the father] heard [the
Gaughter] and her friends inthe houre and a gifl was
crying. three friends were with (the daughter] in her room.
(The Father] callea (the daughter] ‘out of her room and asked
what happened to [her friend who was crying] "Ke got no
Satistactory answer. He told. (the cauguter's] friende to go
hhome bot they refused. At thie point,
Sauahter] tr crisscross
on her stretch nants, above the knees. wish a 36-inch long
Bele. fale ras
wide. (The daushter] testified that she felt a little cain,
Ehat tie apanking atune her. and that the pain lasted an
hour -and es
cried for halt athour...
‘The police officer testified that{,] at 6:00 p.m., he
checked (the daughter's) lege and parts of her body Zor
injuries. He found a
The raised skin area
‘sae about three to three anda half inches wide and about
four and a half to five inches long.
ait sere fussing fiom
‘rey or Blas.
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eee
Id. at 242-43, 613 P.2d at 1363 (emphases added). We reversed
the father’s conviction, concluding that the pain inflicted upon
the daughter by her father did not “come, in degree, anywhere
near death, eerioue bodily injury, disfigurement, extreme mental
distress or groee degradation." Id, at 244, 613 P.2d at 1364.
In so concluding, we employed "the ancient canon of
construction,” noscitur a sociis, i.e., that “the meaning of
words or phrases in a atatute may be determined by reference to
the meaning of words or phrases associated with it,” State
Crouser, 81 Hawai'i 5, 13 n.6, 912 P.2d 725, 733 n.6 (2996), to
interpret the phrase “extreme pain” by examining the other
statutorily prohibited reeulte under HRS § 703-309(1) (b) .
In 1992, the legislature, in considering an amendment
to HRS § 703-309(2) (1985), expressly recognized -- through the
adoption of a standing committee report by the Senate Judiciary
Committee -- that
‘the line between physical abuse and appropriate parental
Glecipiine is a very subjective one. what one parent
Considers discipline may seem abusive to another. Your
eet 0 en rents (and)
Sosrdiane |. when determining guilt in a criminal trial.
ed zis iiseipls
Tea naserity of the comunity would find the extent of che
puniahsent inappropriate.
sen. Stand. Comm, Rep. No. 2493, in 1992 Senate Journal, at 1122
(emphases added). In its attempt to best “draw the line,” the
legislature amended HRS § 703-309(1) (1985) to include the
following underscored new language in subsections (1) (a) and
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(2) (®) and to remove the terns “death” and “gross degradation”
from subsection (1) (b) +
‘The use of force upon or toward the person of ancther
is justifiable under the folloving circumstances
(2) The actor is the parent or guardian or
other person similarly responsible for the
general care and supervision of a minor,
Sr a person acting at the request of the
parent, guardian, or other responsible
Person, and:
(a) The force {s emploves with due
regard for the ace and size of
‘She sinor and is reasonably
elated £5 tbe purpose of
feguareing or promoting the
Welfare of the minor,
Sncluding the prevention or
puniehnese of he minor's
Bigconduct; aad.
(») Fhe force used 4 not designed to
Cause of known to create a risk of
causing gubstantial bodily injury,
Sietigurenent, extrene pain or
mental distress, or neursloaical,
amass
(onphases added.) See 1992 Haw. Sees. L. Act 210, § 1 at 554
The legislature indicated that the purpose of the
aforementioned amendments was ‘to limit the amount of force that
parents and guardians can legally use in disciplining their
children to that which ie reasonable or moderate.“ Sen. stand.
comm. Rep. No. 2208, in 1992 Senate Journal, at 1022 (internal
quotation marks omitted) (emphases added); Conf. Comm. Rep. No
103, in 192 House Journal, at 843. The amendments also brought
the eubject statute "much closer to the formulation found in the
Restatement (Second) of Torts § 147[, see supra note é,] and that
used by a substantial majority of other jurisdictions.” state v.
Growser, 61 Hawai'i 5, 12, 911 P.2d 725, 732 (1996) (citation
omitted). As the conference committee report regarding the
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amendments makes clear, the amendment to subparagraph (a) of
subsection (1) was
intended to further clarify the Jevel_of force one may use
upon minore(.]. In determining whether or not the Level of
force ie permitted under law, @ court must consicer the age
and size of the recipient and vhether « reasonable
Eelationship existe between the force Used and 2 legitimate
Purpose ae specified in the statute
Conf. Comm, Rep. No. 103, in 1992 Senate Journal, at 783
(emphases added). Also, according to the Senate Judiciary
Committee, the amendment to subparagraph (b) of subsection (2)
was intended to lower the standard of harm
by lowering the level of risk, and
i which’ ip less than “eubstantial” a6
Gefined In section 707-700 of the Hawai'i Penai coge.()
While the permissible level of injury may still eppear high,
it is clearly @ lover and nore appropriate threshoié.
By using terms in the Hawaii Penal Code, your
committee believer that the standard Je clearer “Zor both the
Rolice and the public tc underesand and foliow
Sen. Stand. Conm. Rep. No. 2208, in 1992 Senate Journal, at 1022-
23 (emphases added). The legislature, nevertheless, opined that
“the terms retained from the prior law. . . mist be
reinterpreted by the courts, since the changes affect the
application of the rule of construction applied in [Deleon].
Sen. Stand. Comm. Rep. No. 2493, in 1992 Senate Journal, at 2123.
However, the legislature expri
ly indicated that “the changes
> ssubetantial bodily injury’ ie defined as bodily injury which caus
(2) A major avulsion, laceration, or penetration of the
akin;
{2) A burn of at least second degree severity:
(3) 2 bone fracture
(a) A serious concussion; or
(5) A tearing, rupture, or corrosive damage to the
Gsophagus, viscera, oF other internal orgai
ns § 707-700 (Supp. 2006).
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[were] not intended to create a standard under which the result
in Deleon would have been different. The force used by the
father in Deleon, as described in the decision, did not exceed
Tn 1996, this court, in Crouser, wi
called upon to
apply the amended statute for the first time, In affirming the
defendant's conviction, we concluded, inter alia, that the force
used exceeded the permissible level of discipline under the
statute. Crouser, 81 Hawai'i at 12-23, 911 P.24 at 732-33. The
undisputed facts revealed that the fourteen-year-old complainant,
who was a special education student, lived with her mother and
her mother’s boyfriend (the defendant). Id, at @, 911 P.2d at
mm an attempt to istinguish Deleon and Kaiminoku from the instant
case, the dissent asserts that,
waite the corporal punishments in Deleon { (hitting Daughter
lbove the knees aix to ten times with a folded belt)) and
" sgurenent,
fextrene pain or mental distress, or gross degraaation,” HRS
§ 703-3052) (b) (1985), neither thie court Sm Deleon, nor the
ICA in Raiminoks, comented se to whether such punishments
complieg with the greater linitations imposed on parental
Giseipline by [the 1992 amendment, i.e.,] HRS
§ 703"309%2) (b) (3993).
Dissenting op. at 21-12 (bold emphasis added). we rote, hovever, that pelecs
was decided in 1991 -- obviously, before the i992 anenduent was even
Considered by the legislature, ‘it is, therefore, inconceivable that thie
Court could or would comment on an anendnent that had not yet been paseed.
Noreover, although Kainineku was decides by the ICR six nonthe after the
effective date of the 1992 anenanent, the 1985 version of the parental
Justification defense controlled inasmuch ae the incident giving rise to the
affense charged in that case occurred on Pebruary 13, 421, 9 Raw. App. at’
346, e¢1 F.2d at 1077. Consequently, any comment by che ICA ae to the
inapplicable anendnent would have bean dicts,
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728. The complainant was required by her mother and the
defendant to bring hone a daily progress report signed by her
teachers. Id, However, on the day of the incident, the
complainant forgot to pick up the report from her counselor for
her teachers to sign. Id. She apparently used an old report and
changed some of the grades and her attendance record. Id. Upon
learning of the conplainant’s action, the defendant went to the
complainant's bedroom and
called her @ lar and hit her across both sides of her face,
Jnocking her to the floor. Ae she wae trying to get up,
[the defendant) grabbed hor and threw ber face down on the
bed. Recording to the (complainant's) testimony, [the
Gefendant] put his knee on [the complainant's] back, pulled
her panté end underwear Gow to her knees, and started
Nthacking" ner bare buttocks. Moen (the defendant] left the
room, (ehe complainant] pulled up her underwear and pants
bot (the defendant] returned with s plastic bet and closed
the door. Ke again pulled down (herl pante and underwear
and struck her with the bat on the suttocks, arm, thighs,
find torso until the bat broke. (The complainant} could sot
fCnenber the number of times chat she had been struck, but
testified that che incident lasted approximately thirty
minutes
Id. The complainant t
eified that she had a hard tine sitting
and felt dizzy for an hour or 90, and her bottom hurt for a
couple of weeks after the incident. Id. She further stated that
she could not sit on a hard student chair at school and stood in
some of her classes. Id, The school counselor and the health
aide both testified that the complainant's buttocks were bruised
and colored a deep reddish-purple. Id. at 8, 911 P.24 at 729.
We initially declared that, to invoke the parental
justification defense under the anended HRS § 703-309(2), the
defendant
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wae required to make @ showing that the record contained
Evidence eupporting the following elemente: (2) he [or she]
was a parent, guardian, or other person at described in ERS
$ 703-3013); (2) he [or shel used force against a winor for
‘whose care and supervision he [or she] vas responsible; (3)
Bis [or her] use of force was with due regard to the age and
size of the recipient and Feagonably relates to the purpose
Of safeguarding or promoting the welfare of the mincr,
Incluaing the prevention or punishrent of misconduct; and
(4) the force used wae not designes £0 cauee, or known £0
create a risk of causing, substantial bodily injury,
Gistigurenent, extreme pain or nental Gistrese, oF
neurological danage.
dy at 10-12, 911 P.2d at 730-31 (citations and footnote
omitted). We also stated that:
Although we have found no other statute employing the
identical language (Contained in the current Version of IRS
§ 703-309(2) (a)], st scene clear that to be “reasonably
Felated" to the purpose of punishing misconduct, use of
force must be both reasonably nroportional <0 the misconduct
‘being puniahed and reasonably believed neceuaary to protect
ghe welfare of the recipient. subsection (b) of HRS § 703"
309{7) defines the maximum degree of force that ie
justifiable under ehe evatute. Subsection (a), as amended,
yr that physical discipline may be 40 excessive
'g no longer Featonably related to safeguarding the
welfare of the minor, even if it does not exceed the bounds
et in subsection tb).
Id, at 12, 911 P.2d at 732 (emphasis added).
Upon considering, inter alia, (1) the age and size of
the complainant, (2) testimony that the force wi
caused the complainant to be unable to sit in her clai
(3) the nature of the injuries, we held that the force used by
the defendant was not reasonably related to protecting the
complainant's welfare. Id. at 12, 911 P.24 at 732. we further
held that the force inflicted upon the complainant exceeded the
permissible level of discipline. Id. at 12-13, 911 P.2d at 732-
33. As we explained,
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[iJnterpreting *extrene pain’ noacitur @ gociie vith
substantial bodily injury, las defined tn" fia # 707-700
Eupia note $,] we believeld the complainant's) pain was,
Comparable in degree to the other statutorily forbidden
fSults, such as 2 laceration of the skin or a burn of
was that. vextrene pain for aay
unable £0 sit without pain for weeks.
Id. at 13, $21 P.2d at 733 (enphasie added). Moreover, we
rejected the defendant’s assertion that HRS § 703-209(1) is void
for vagueness because the subject statute “describes, with
sufficient clarity, the level of force that may justifiably be
used in the discipline of a minor,” stating that
Society recognizes the primary role of parents in
preparing chiléren to sssune the obligations and
Pesponsibilities of adulthood, and it is well-established
that parents have a privilege to subject children to
Fesscnable corporal punishment. On the other hand, child
abuse ie @ serious and widespread problen, and the state nae
2 powerful interest in preventing and devarring ene
battering of children. ‘section 703-309 (2) represente the
Balance struck by the legislature between these competing
at 14, 911 P.2d at 734 (citation omitted) .
In State v. Stocker, 90 Hawai'i 85, 976 P.2d 399
(1999), we revisited the Crouser court’s interpretation of the
phrase "reasonably related" and declined to overrule Crouser.
Id, at 94, 976 P.2d at 408. In Stocker, the defendant-father was
convicted of harassvent for slapping hie eleven-year-old son
across the face when the son refused to obey the father’s
repeated instruction to cone to him. Id, at 88, 976 P.2d at 402.
In reviewing the evidence in stacker, namely, the son's testimony
that (1) his father slapped hin as a result of his failure to
come to him after several commands and (2) the fact that the slap
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was (a) ‘with an open hand," (b) “didn’t hurt . . . only hurt a
little bit," and (c) left no mark or bruise, thie court concluded
that a "single, mild slap to the face" wi
reasonably
proportional to the son’s misconduct. Id, at 96, 976 P.2d at 420
(ellipsis in original) (brackets and internal quotation marks
omitted). We, thus, reversed the father’s conviction, concluding
that the prosecution failed, as a matter of law, to negate the
father’s parental justification defense. Id, at 95-96, 976 P.2d
at 409-10. We further indicated that, although “the
eoiplature’s 1992 amendments to HRS § 703-309(1) accorded the
courts greater leeway to determine the parameters of permissible
parental discipline, they did not eradicate a parent's
1d fores ens
misconduct.* Id. at 96, 976 P.24 at 410 (emphases added).
In contvast, the ICA in State v. Tanielu, 82 Hawai'i
373, 922 P.2d 986 (App. 1996), agreed with the trial court that
the “viciousness of the attack [the] defendant was involved in
severed any relationship between the use of force and the welfare
of [the d]aughter which might be considered ‘reasonable.’" Id.
at 381, 922 P.2d at 994 (some internal quotation marks omitted) .
In that case, the defendant kicked his fourteen-year-old daughter
in the shin, slapped her six to seven tines, punched her in the
face five to ten times, stomped on her face, and pulled her ears
after discovering that she, inter alia, viclated his orders not
to see her verbally and physically abusive eighteen-year-old
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boyfriend. Id, at 276-77, 922 P.2d at 989-90, The ICA held
that, based on the nunber and nature of the slaps, punches, and
kicks inflicted upon the daughter and the police officer's
observation of the daughter's lacerations and contusions, the
fanily court did not err in rejecting the parental justification
defense. Id.; see aleo State v. Miller, 105 Hawai'i 394, 98 7.34
265 (App. 2004) (holding that the punching in the face and the
multiple kicking in the ribe of an eleven-year-old complainant,
as well as evidence of bleeding on the head and scratches to the
facial area and ears, were clearly not reasonably related to the
purpose of safeguarding or promoting the welfare of the
complainant)
In the present case, the critical inquiry is whether
the prosecution presented sufficient evidence to negate Mother’s
defense of parental discipline. we believe the prosecution has
not done 80.
When @ question of parental discipline is raised, the
prosecution must prove beyond a reasonable doubt that the
4 the digsent believes that Croueer, Miller, and Zanielu “provide
Little assistance in determining whether the corporal punishment delivered by
Nother is insufficient to constitute abuse as a matter of law’ because thove
Cases “do not establish the minimum degree of punishment that will constituce
Shuse(.1* Dissenting Op. at 7, Although, as stated infra, each c
[ivelving the alleged abuse of 2 child must be reviewed on # case-by-case
daria, the aforenentioned cases not only provide guidance in understanding the
evelution and interpretation of HRS §'703"309(2), but also serve to illustrate
the kind of conduct that clearly falle outeide the paraneters of parental
Giscipline. On the other hand, Stocker -~ a case decided after the 1952
anendhent -- gesonstrates the cther side of
Conduct that fella within the parameters of
more fully infra, the facts of this case, in our view, Gictate that the force
Used by Méther wae not #0 excessive as to exceed the boundaries of parental
Siscipline
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here, Mother's -- conduct did not cone within the
parent's
cope of parental discipline
prescribed in HRS § 703-309(1).
See Crouser, 81 Hawai'i at 11, 921 P.2d at 731 ("the progecution
had the burden of disproving beyond a reasonable doubt the
justification evidence that was adduced, or proving beyond a
reasonable doubt facts negativing the justification defense")
(citation omitted)). As previously discussed, the legislature,
in creating the parental justification defense law, recognized
the right of parents to discipline their children; that right,
however, is not absolute. In other words, parente may be
justified in physically disciplining their children, but such
discipline mst be with due regard as to the anount of force
utilized and must be directed to promote the welfare of the
child. qhe force used must (1) reasonably be proportional to the
misconduct being punished and (2) reasonably be believed
necessary to protect the welfare of the recipient. See id. at
10-12, 911 P.2¢ at 730-32. The means used to effect the
discipline must also be reasonable, In determining whether force
is reasonable, the fact finder must consider the child’s age, the
child’s stature, and the nature of the injuries inflicted, i.e.,
whether the force used was designed to cause or known to create a
risk of causing substantial bodily injury, disfigurement, extrene
pain or mental distress, or neurological damage given the child’s
age and size. These required factors are cbviously general in
nature and, by their very terms, place a large amount of
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discretion with the courts to determine whether the actions of a
parent fall within the parameters of parental discipline, as set
forth in HRS § 703-309(1). Clearly, there is no bright line that
dictates what, under all circumstances, is unreasonable or
excessive corporal punishment. Rather, the permissible dearee of
force will vary according to the child's physique and age, the
misconduct of the child, the nature of the discipline, and all
the surrounding circumstances. It necessarily follows that the
question of reasonableness or excessiveness of physical
punishnent given a child by a parent is determined on a case-by-
case basis and is dependent upon the particular circumstances of
the case.
Here, the uncontroverted evidence denonstrates that
Daughter had been lying to Mother for about two and a half
months, telling Mother she was attending her tutoring classes
when, in fact, she was hanging out at the mall with her friends
without supervision. Daughter lied to Mother about forgetting
her report card at school when, in fact, she "purposely" left her
report card at school because of her low grades. Daughter
repeatedly refused to answer Mother’s questions concerning her
report card, the reasons for the grades not improving, and
whether she was attending her tutoring classes. Given these
circumstances, it would not be unreasonable for a parent in
Mother's position to conclude that Daughter needed disciplining
for lying to, misleading, and disrespecting her mother. indeed,
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as Mother testified, she was “frustrated” and “felt deceived" by
Giehonesty and believed she had “to teach [her]
Daughter
daughter a lesson, to get back on the right track.’
With regard to the child's age and size, the evidence
reveals that, at the tine of the incident, on April 15, 2005 (a
Friday), Daughter was fourteen years old; her height and weight
were unknown. At the time of trial, which comenced on August 2,
2005 -- less than four months later, Daughter was 5/4" or 5/5"
and weighed approximately 150 or 154 pounds. Daughter testified
at trial that Nother was taller, heavier, and stronger than she.
With regard to the type and amount of force used by
Mother and the nature of Daughter's injury, the record reveals
that: (1) Mother used a plastic backpack to hit Daughter because
Daughter refused to answer Mother's questions concerning
Daughter's report card; (2) Mother tried to hit Daughter on the
thigh with a plastic hanger, but instead hit Daughter's left arm
about five times, when Daughter refused to answer Mother's
questions as to her whereabouts during the time she was
supposedly at her tutoring classes; and, (3) upon learning of
Daughter's activities, Mother hit Daughter once in the hand with
the flat side of a “small car brush" and once in the knuckles
with “the plastic handle” of a tool. According to Daughter,
Nother was not hitting her hard, testifying that, on a scale of
one to ten with ten being “very painful," being hit by (1) the
backpack was a two or three, (2) the plastic hanger was a four or
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five, (3) the flat aide of the car brush did not hurt, and (4)
the plastic handle of the tool also did ‘not really" hurt.
consequently, Daughter's left arm was ‘red and... had... a
few markings from the hanger[,]* which markings were "just lines*
<- ‘emall . . . like the size of a pencil (Line]* with “tiny
spots of purplish-greenish." Officer Lee observed *[t]he bruise
on her . . . left shoulder areal,]" but did not notice any
abrasions, welts, of scratches on Daughter.” Daughter herself
testified that the two photographs of her left arm (state's
Exhibits 1 and 2) showed only “small bruises,” and that, on the
date of the incident, her injuries were exactly as shown in the
photographs, except with “a little color, but you could barely
see it.
Considering the totality of the facts and
circunstances, we believe that the force employed by Mother was
reasonably proportionate to the Daughter’s defiant behavior
towards her mother and ws
reasonably believed to be necessary to
discipline Daughter and that the force used was “not designed to
cause or known to create “substantial bodily injury,
disfigurement, extreme pain or mental distress, or neurological
damage.” HRS § 703-309(1) (b). As stated above, Daughter
testified that, although she experienced sone pain at the tine of
2 indeed, had Officer Lee suspected that any of Daughter's injurie:
night dnciude “fractures (which, obviously, are undetectable without an x-
Seyi, he surely would not have acquiesced when she declined medical treatnent.
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the incident, Nother was not hitting her hard. In fact, Daughter
indicated that, out of the four implements used by Mother, two of
them (the flat side of the car brush and the plastic handle of
the tool) did not hurt or did “not really" hurt and the other two
(the backpack and the plastic hanger) only hurt between levels
two to five (on a scale of one to ten with ten being “very
painful"). In addition, unlike Crouser, in which the minor was
unable to sit at school for days as a result of a severe beating
to the buttocks area, or Tanielu, in which the minor received
numerous punches, kicks, and slaps to the face and shin area,
resulting in lacerations, or Miller, in which the minor received
multiples kicks and punches to the face and ribs, resulting in
scratches and bleeding, Daughter's injuries in thie case
consisted of a few eal bruises that were visible for about a
week. No evidence was adduced that the bruises required medical
attention. In fact, Officer Lee offered to get Daughter medical
attention, but Daughter refused medical help. Likewise, there is
no evidence to indicate any detriment to Daughter's overall well-
being or physical, emotional or psychological state. See HRS
§ 703-209(1) (B). The evidence indicated that Daughter was able
to tend to her normal household chores on the night of the
incident, as well as attend a fanily lv'au on Saturday (the day
after the incident) and a family gathering/dinner on Sunday
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bel_upset with, or concerned about, their children's
Behavior. Nor do parents elvave act pursuant tos clearly
Sefined cizcunstance of discipline or control. A reaction
Often occurs fron behavior s parent deena inappropriate that
frritates or angers the parent, causing s resctive,
demonstrative act. Heat of the soment sist not reault sn
Stmodevate physical force and mst be managed, however, an
een part ahd parcel of the Teal Site
‘hich prosecutors and courte should not interfere. what
Parent anong Us can say he OF she has not been angered to
Some degree from a child's Gefiant, impudent, or insolent
Conduct, suftiesent co call for spontaneous, stern, and
hesningtel discipline?
State v, Lefevre, 117 P.3d 980, 984-85 (N.M. Ct. App. 2005)
(emphases added) (holding that the father’s “demonstrative act,
even if an angry touching, result [ing] in only a temporary, dime-
sized bruise on [the d]aughter’s hand and transient pain" fell
within the parental privilege). Courts have also recognized
that, although corporal discipline may be considered excessive
when it results in significant bruises or welts, “bruises are not
necessarily indicative of excessive corporal discipline.” T.G.
Dep't of Children & Families, 927 So. 2d 104, 106 (Fla. Dist.
Ct. App. 2006) (holding that a bruise, without any evidence that
euch bruis
constitute abuse); gee also Sl. v. Dep't of Children & Families,
787 So. 24 973, 974 (Fla. Dist. Ct. App. 2001) (*Most corporal
required medical attention, was not sufficient to
punishment, even that which is not excessive, produces temporary
marks of some kind."). Moreover, as observed by another court,
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[if] the mare application of parent's hand to a child's
backside that results in even sinimal bruising vould, ae 8
matter of law, require a finding of physical abuse (,_i5)
easonable seat caus Even nore
Auarning ie that this interpretation Fequires « finding of
physical abuse when a parent attempts to save a child from
hharm but, in Going so, bruises or injures the child.
lovan C. v. Dep't of Children & Families, 860 A.2d 1283, 1289
(conn. App. Ct. 2004) (emphasis added). Indeed, this court and
the ICA have reversed convictions in cases where the parental
force employed was more severe than in this case, holding that
the discipline used was within the protection afforded by HRS
§709-309(1). See Deleon, 72 Haw. at 242-44, 613 P.2d at 1283-94
(involving fourteen-year-old complainant who was hit with a
folded belt six to ten times); Kaiminoku, 9 Haw. App. at 253, 642
P.2d at 1080 (involving seventeen-year-old complainant who was
slapped in the face and punched in the shoulder).
Nevertheless, the dissent takes issue with our holding,
contending that ‘the record, viewed in the Light most favorable
to the prosecution, contains substantial evidence to support the
jury verdict." Dissenting op. at 1. In advancing its position,
the dissent explains tha
tm Connecticut, section 528-18 of the General statutes provides that
tthe use of physical force upon ancther person which vould
Otherwise constitute an offense is justifiable and not
criminal under any of the following cizcunstances: (1) A
parent, guardian Or other person entrusted with the ca
supervision of @ minor... may use reasonable physical
ae ch te be necess
‘and
ros)
1a, at 1286 (orphasis added) (original brackets omitted) (ellipses in
original) .
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‘Throughout the conversation Mother graw increasing incensed
(Over Daughter's poor performance ang deception, snd (1)
feruck Daughter with a plastic backpack approximately.
sixteen inches by twelve inches in size, (2) struck Daughter
approximately five tines on her left forearm with a plastic
hanger, (3) struck Daughter on the top of her left hand with
the hard, flat side of (carl brush, and (4) struck
Daughter on the knuckles with the plastic handle of
Fisted, metal tool. Daughter testified that Mother was
taller, heavier, and stronger. Mother admitted that she
lost control, and
Wewed in the light most favorable to the prosecution,
‘the record establishes that Nother, 2 parent of supersor
size and strength, lost control and
Daughter, snong other things, with the plunt Randle cf @
fitted neta! tool, Such a biow carried with st an attendant
Fisk of causing “substantial bodily injury(."
(Citation and footnote omitted.) (Emphases added.) Dissenting
op. at 15-16 (citations to the record omitted) .
‘The dissent faile to account for the circumstances that
gave rise to the disciplining and the resulting bruises on
Daughter's left forearm. The dissent attempts to portray Nother
as an out-of-control parent who repeatedly used various
implenents to discipline Daughter for her poor performance in
school. See Dissenting Op. at 15-17. However, as discussed
above, the evidence reveals that Mother disciplined Daughter for
her continuously defiant behavior in refusing to answer Mother's
questions and in lying to her. Specifically, Mother hit Daughter
with a plastic backpack because Daughter refused to respond to
Mother's questions regarding Daughter’s report card. Mother hit
Daughter with a plastic hanger because Daughter again refused to
answer Mother questions
this time -- regarding her whereabouts
during the time she was supposed to be attending her tutoring
classes. And, only upon learning of Daughter's activities, ie.,
-39-
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skipping tutoring classes and hanging out with her friends at the
mall, did Mother hit Daughter once with the flat side of a small
car brush and once with a plastic handle of a tool, both of which
Daughter testified did not hurt.
Although we recognize Mother's admission that she lost
va Little control" is a factor to be considered, such admission
alone is not indicative of child abuse. As discussed above, the
parental justification defense statute requires this court to
take into consideration numerous factors in determining whether
abuse has occurred. Of great significance is the degree of force
employed, which the dissent appears to disregard. Rather, the
Gissent places strong emphasis upon the fact that this case
involved the use of multiple implements. For instance, the
Gissent admits that, although the “the case at bar bears some
factual resemblance to Deleon to the extent that the minors in
both cases suffered bruises lasting approximately one week{,]*
but states that *[t]he distinction, however, lies in the
modus operandi.” Dissenting op. at 12, According to the
Gissent, there is a “considerable difference between striking a
child with a belt{, as in Deleon,] and striking a child with
various hard. blunt implenents[ inasmich as) the latter method
presents a greater potential for substantial bodily injury --
Aue., major avulsions, lacerations, penetrations of the skin, and
bone fractures." Id, at 12 (emphases added). We, however,
perceive some major flawa in the diasent’s interpretation.
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First, the dissent predicates the offense of child abuse
exclusively upon the use of multiple implements (as opposed to
ingle inplenent, e.g, a belt). Second, the dissent effectively
alters the standard set by the legislature and contravenes the
purpose of the statute in recognizing a parent’s right "to ust
force to discipline their children . . . , subject to cl
requirement not to cause permanent injury." HRS § 703-309(2)
cmt. (emphasis added). We can see no support from the letter and
spirit of the subject statute to render a parent's use of
multiple implemente upon a minor ae child abuse per ge. As one
court stated,
the use of an object . . . should not blind a court to the
any other factors which should and must be considered when
(weighing the evidence to determine the "reasonableness” of
the discipline. We must take care not to create a legal
fandara from our personal notions of how best to discipline
Senile.
Inxe Z.P., 692 N.E.24 338, 346 (I11. App. ct. 1998).
‘The basic conception of the parental justification
defense is to allow a person responsible for a child's welfare to
use reasonable force to discipline that child. to determine
whether the force falls within the limitation of parental
discipline, the factors set forth in HRS § 703-309(1) must be
considered. Thus, the implements, if and when used in
Gisciplining a child, do not automatically render the parental
justification defense inapplicable; rather, the applicability of
the defense essentially depends upon the manner in which the
implenents were used, i.e, the degree of force exerted. The use
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in West's Hawai'i Reports and the Pacific Reporter
of physical force exceeds acceptable norms when such force has
the potential “to cause or known to create risk of causing
substantial bodily injury . . .[, or] extreme pain(.]* ERS
§ 703-309(1) (b). Contrary to the dissent’s contention, we cannot
perceive how the force employed by Mother, which, according to
Daughter, was not hard and only caused her temporary pain, could
somehow have the potential of creating “substantial bodily
injury," such as, “najor avulsiona, lacerations, penetrations of
the ekin,* “bone fracture," and “serious concussion." HRS
§ 707-700. Were that the case, even the use of mild force, which
this court held a permissible under HRS § 703-309(1),
nee Stocker, 90 Hawai'i at 96, 976 P.2d at 410, would now be
considered as capable of causing substantial bodily injury and
necessarily constitute child abuse.
Based on the foregoing, we hold that mother’s conduct
fell within the parameters of the justified parental discipline
statute and that, as a matter of law, the evidence in this case
was insufficient to support a determination of guilt on the
charge of abuse of a family or household menber beyond @
n42-
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in West’s Hawai'i Reports and the Pacific Reporter
reasonable doubt.'*. However, this court has previously stated --
that
and we believe it is worthy of reiteration at this point
our opinion today should not in any way be construed at
expression of approval of the parental conduct that
precipitated the prosecution of the satter before us.
Neither should oor opinion be viewed as an endorsenest, of
fany ind, of the use by parente of corporal punishment of
their chiieren.” It is conmon knowleage that the uesiity ~~
fot tovnention the sinple humanity -- of corporal punietnent
asa parental tool is the subject of considerable
Controversy within Anerican society. Nevertheless, it is
equally cbvious that the permissibliicy of corporal
Punianment reflects @ societal judgnent chat falls well
Within the paraseters of legitimate and constitutional
je policy-making. In this regard, the legislature
eed it jodgnent, for better or worse, through the
parental discipline defense, as enacted in ike § 703-309(1)
What, in ite wiedom, the legislature hae codified, it ic
free’ to amend of repeal: But ae long ae Wee § 703-309(3)
Fensine the law of thie state, we are bound to congtrue and
enforce it.
Stocker, 90 Hawai'i at 96, 976 P.2d at 410. We, therefore, hold
that the ICA gravely erred in affirming Mother's conviction and
sentence.
The Allen-Like instruction
Mother finally contends that the trial court, in
responding to the jury's communication, improperly issued what
amounted to an Allen instruction, which led the jurors to believe
Me do not see how cur holding today “narrow{s] the gat
restrict (e] the reain reserved for the trier of fact” as the ai
Dissenting Op. at 14. Ae stated earlier, although ve do nct lightly set aside
a jury's verdict, we will not hesitate to do so when such verdict, as here, is
fot supported by the evidence. Nor do ve believe that the result of this Case
Bends s message that "henceforth, where a parent losses (sic) control over a
Child's repeated and prolonged deception about failing to attend tutoring
Session which contributed to poor performance in school, that parent is
permitted, asa matter of law, co respond in the fashion Mother did here.”
Ea at 1 (enphasie in origingn) “again, we review child abuse cases on a
Basis, and, based upon all of the evidence in this c
Pit use of force falls within the Sounde of parental discipline
and thereby
ent contends.
43
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in West's Hawai'i Reports and the Pacific Reporter
that their “deadlocked” position was unacceptable. However, our
last contention moot .**
holding today renders Mother’
Iv. ONCLUSION
Based on the foregoing, we vacate the ICA's August 29,
2006 judgment and reverse the trial court’s August 5, 2005
judgment of conviction and sentence
Katie L, Lambert and
Deborah L. Kim, Zip
Deputy Public befenders,
for petitioner-appellant, :
on the application LEPPBrimpr
Stephen K. Teushina,
Deputy Prosecuting Attorney,
attorney of record for
respondent -appellee,
no response filed
% waving concluded that there was sufficient evidence to support
wocnervs convictlon, the Giesent wae required to address Wotter', next
Contention that the trial court erred in its re
Communication that it was Geadlockes, which response, according to Mother,
amounted to an improper Allen instruction. However, as discussed above, we
heed not entertain the emue in light of Our holding. ‘would violate
sone of the prudential rules of judicial self-governance’ that “courte are to
avold advisory opinions on abstract propositions of law.* ole
‘Trails Group v. Lyman, 69 Haw 61, 67, 734 7.20 261, 165. (987) (internal
quotation sarks, citation, and original brackete omitted). As this court hae
eaves:
tribunal, as
he duty of thie court, as of every other judicial
aa to decide actual controversies by a iudanent
which ca be carried into effect. and not to give opinions
‘apon Woot questions or abstract propositions, or to declare
Principles or rules of law which cannot affect the matter in
[eeu in the case before it~
Sours will not _conaune tine deciding abetcact
propositions of law or soot cases, and have no jurisdiction
odo 50.
sf Regente, univ. ii. 62 Hav. 392, 396-95, 616 P.2d 202,
20 (i900) (citations omitted) (emphases added). Moreover, we note that the
Allen instruction issue is clearly not cne waich faile within the exception to
he moctness doctrine, i.e, that the issue is “capable of repetition, yet
evading review.” 1d. at 396, 616 P.24 at 208 (citation omitted) -
n44-
|
d8c14321-f07a-43d4-bf73-5efa5f87f664 | State v. Kekuewa. Concurring and Dissenting Opinion by J. Acoba [pdf]. ICA Opinion, filed 08/10/2006 [pdf], 112 Haw. 269. S.Ct. Order Accepting Application for Writ of Certiorari and Requesting Further Briefing, filed 12/14/2006 [pdf], 113 Haw. 153. | hawaii | Hawaii Supreme Court | ‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPOR!
IN THE SUPREME COURT OF THE STATE OF HAWAZ'T
00
STATE OF HAWAI'I, Plaintiff-Appellee-Petitioner,
PHILIP KALA KEKUEWA, Defendant-Appellant-Respondent .
No. 27248
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(BD TRAFFIC NOS. 004151343; 004251341; 00415133)
JULY 31, 2007
MOON, C.J, LEVINSON, NAKAYAMA, AND DUFFY, J
AND ACOBA, J., CONCURRING AND DISSENTING
OPINION OF THE COURT BY NAKAYAMA, J.,
Tnetine Le 1 L002
Plaintiff-Appellee-Petitioner, State of Hawai'i
(“prosecution”), petitions this court to review the Intermediate
Court of Appeals’ (“ICA”) August 23, 2006 judgment reversing the
March 22, 2005 judgment of the first circuit district court
(“district court”) convicting defendant-appellant-respondent,
Philip Kala Kekuewa, IIT ("Kekuewa”), of the offenses of
Operating a Vehicle Under the Influence of an Intoxicant
OVUII"), in violation of Hawai'i Revised Statutes (“HRS”) §
2916-61," Driving Without a License (“DWOL”), in violation of HRS
HRS § 2918-61 (Supp. 2004) provide:
follow
in pertinent part, as
52928-61 Operating a vehicle under the influence of an
Antoxseant. (a) A person comits the offense of operating a
Yonscle under the influence of an ntoxicant Af the person
operates or assunes actual physical control of a vehicle:
(dy While under the influence of alcohol in an amount
aufficient to inpair the person's normal mental
faculties of ability to care for the person and guard
(continued. -.)
oa
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«
continued)
@
8
mw
i)
against casualty;
While under the influence of any drug that impairs the
Person's ability to operate the vehicle in a Careful
nd prudent manners
With’ .08 or more grams of alcohol per two hundred ten
Liters of breath; or
With .08 or more grams of alcohol per one hundred
nilliitters or cubic centinaters of blocd.
A person conmitting the offense of operating @ vehicl.
under the influence of an intexicant shall be sentenced as follows
without possibility of probation or suspension of sentence
‘ap
@
For the first offense, or any offense not preceded,
within s five-year pefied by a conviction for ae
offense under this section or section 2918-€ (a)
(a). A fourteen-hour minimum substance abuse
rehabilitation progran, including education and
counseling, oF other comparable program deemed
appropriate by the courts
(2) Nihety-day: prompt. suspension of License and
privilege to operate a vehicle during the
Suspension period, or the court may impo
1Let°Or the ninety-dsy prompt suspension of
License, a miniman thirty-day prompt suspension
of license with absolute prohibition fron
operating a vehicle and, for the remainder of
the ninety-day period, a restriction on the
License that allows the person to arive for
limited work-related purposes and £0 participate
in substance abuse treatment programe;
(C) Any one or nore of the followin:
("Seventy-two houra of community service
works
(44) Not loss than forty-eight hours and not
sore than five days of imprisonment? oF
(441) A fine of not less than 150 but not more
than" $1,000; and
(0) A surcharge of $25 fo be deposited into the
peurotrauma special fund;
For an offense that occars within five years of a
prior conviction for an offense under this section or
Eection 2918-4 a) by:
(A) Prompt suspension of License and privilege to
operate a vehicle for a period of one your with
fan absolute prohibition from operating a vehicle
during the suspension period;
(®) Either one of the followings
(i) Not less than two hundred forty hours of
conmunity service works or
(ii) Not less than five days but not more than
fourteen days of imprisonment of which at
least forty-eight hours shall be served
in
consecutively
(C) A fine of not less than $500 but not nore than
$1, 5007 and
(D) A Surcharge of $25 to be deposited into the
Reurotrauma special fund...
2
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ST EORPUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
§ 286-102,* and Speeding, in violation of HRS § 291C-102.? on
appeal, the prosecution argues that: (1) this court should
reconsider State v. Domingues, 106 Hawai'i 480, 107 P.3d 409
* ns § 286-102 (Supp. 2004) provides, in relevant part, as follows:
'$286-102 Licensing. (a) No person, except one exempted
lunder section 206-105, one who holds an instruction permit under
Section 286-110, one who holds a commercial driver's license
Hsaued under section 286239, of a commercial driver's license
instruction permit issued under section 266-236, shall operate any
category of motor vehicles listed in this section without first
being appropriately examined and duly licensed es © qualified
driver of that category of notor vehicles:
(b) “A person operating the Zollowing category oz
combination of categories of motor vehicles shall be examined as
Provided in section 286-108 and duly 1icensed by the examiner of
Srivers:
(1) Mopeds:
(2) Metareyeles and motor scooters;
(3) Passenger cars of any gross vehicle weight rating,
buses designed to transport fifteen or fever
occupants, and trucks and vans having 2 gross vehicle
weight rating of fifteen thousand pounds or less), and
(4) All’of the motor vehicles in categery (3) and trucks
having a gross vehicle weight rating of fifteen
thousand one through twenty-six thousand pounds.
A school bus or van operator shall be properly Licensed to
operate the category of vehicles that the operavor sperates aaa
school bus or van and shall comply with the standards of the
department of transportation as provided by rules adopted purauant
to section 286-181
»-wRS § 2910-102 (Supp. 2004) provides as follow:
S291C-102 Noncompliance with speed Limit prohibited. (a)
No person shall drive a vehicle at a speed greater than a waximm
peed limit and no person shall drive a moter vehicle at a speed
fess than 2 minimum speed limit established by county ordinance
(B) " The director of transportation with respact eo
highways under the director's jurisdiction may place signs
establishing maxim speed linies or minimum speed iimics, Such
signs shall be official signs and no person shell drive a venicle
at a speed greater than 4 maximum speed linit and no person shell
drive a motor vehicle at a speed lesa than a minimum Speed stated
on such signs.
(c) "TE the maximum speed Limit is excesded by more than
ten miles per hour, a surcharge of $10 shall be imposed, in
addition to any other penalties, and shall be deposited into the
Auerotraune special fund.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
(2005), in which this court stated that prior convictions are
essential elements of the offense of OVUII; (2) the ICA erred by
reversing Kekuewa’s conviction, rather than remanding the matter
for resentencing under HRS § 291E-61(b) (1); and (3) a reasonable
person would have found the overwhelming evidence sufficient to
support the conclusion that Kekuewa operated a vehicle under the
influence of an intoxicant.
For the following reasons, we vacate Kekuewa’ s
conviction of and sentence for the offense of OVUII under HRS $$
2918-61 (a) and (b) (2) (Supp. 2004), and remand the matter for
entry of judgment of conviction of and resentencing for the
offense of OVUIT pursuant to HRS S$ 291E-61(a) and (b) (1) (Supp.
2004). We also vacate the ICA’s August 23, 2006 judgment to the
extent that it reverses Kekuewa’s conviction of and sentence for
the offense of OVUIT under HRS $$ 291E-61(a) and (b) (2) (Supp.
2004).
1, BACKGROUND
On April 15, 2004, at approximately 1:45 a.m., Officer
Ryan Nishibun (“officer Nishibun”) observed a black truck
entering the H-1 Freeway, westbound, around the Kahala Mall ar
Officer Nishibun testified that his attention was dravn to the
vehicle because it was traveling at “a high rate of speed.”
Officer Nishibun proceeded to follow the truck and warned
officers stationed along the freeway of its approach. An officer
positioned on the Waialae Avenue overpass, using a laser device,
measured the truck's rate of speed at 88 miles per hour.
Officer Nishibun caught up to the truck around the 6th
Avenue overpass, and he observed it weaving within the left lane
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
of the freeway. Officer Wishibun subsequently activated his blue
Lights and siren, but the driver did not respond. Officer Jacob
Miyashiro (“Officer Miyashiro”), an officer also in pursuit,
positioned his vehicle in front of the truck and decelerated to
force it to slow down. When the truck eventually stopped,
Officer Nishibun and other responding officers surrounded the
vehicle.
Approaching the vehicle from the rear, Officer Nishibun
observed two adult male occupants. Kekuewa was seated on the
driver's side of the truck, and Stewart Conrad (“Conrad”) was
seated on the passenger's side. When Officer Nishibun asked
Kekuewa to step out of his vehicle, Kekuewa appeared to fumble
with the locking mechanism. When asked for his paperwork,
Kekuewa was unable to produce a driver’s license and later
admitted that he did not have one. Officer Nishibun described
Kekuewa’s physical appearance as follows: “(Kekuewa’s] face
appeared flushed. He had bloodshot, glassy eyes. And initially
when he opened the door, I could smell a strong odor of
alcoholic-type beverage coming from within the cab, and then
later while speaking with him, I could detect that odor coming
from his breath.” Officer Miyashiro also testified that Kekuewa
emanated a strong odor of alcohol, and that “[h]is eyes were red,
watery, glassy. When he spoke to me, his speech was slurred,
very slurred.” Officer Miyashiro further observed that, “fron
the moment [Kekuewa] got out of the vehicle, he appeared very
unsteady on his feet and for the duration of my observation,
while he was supposed to be standing, he appeared very unsteady
on his feet.”
‘7+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Due to the location of the stop, Officer Nishibun
subsequently ordered the transport of Kekuewa and Conrad to @
safe location to conduct @ field sobriety test. Kekuewa was
taken to the law Library parking lot on the University of Hawai'i
campus. Thereafter, Officer Dexter Gapusan ("Officer Gapusan”)
administered a standardized field sobriety test. Based upon
Kekuewa’s performance on the field sobriety test, Officer Gapusan
believed that Kekuewa was impaired and arrested him for OVUIT.*
Kekuewa was arraigned on October 11, 2004 and charged
as follows:
[Prosecution]: Me. Kekuewa, on or about the 15th day
of April 2004, in the city and County of Honolulu, state of
Nawali, island of Oahu, you did operate or assume’ actual physical
control of a vehicle walle under the influence of alcohol in an
Geoune sufficient to impair your hormal mental faculties or the
Gbility to care for yourself and guard against casualty thereby
tion 2916-61 of the Hawai! Revised Statutes {or your
‘Gn thet gene date, 15th day of April, 2004, you did,
Am the city and County of Honolulu, State of Hawaii, operate or
Permit the operation of or cause the operation or (indiscernible)
Che venicle on a public highway without a current official
certificate of inspection in violation of Section 286-25, Hawaii
Revised seatutes.
‘And on of about that same day, the 15th of April 2004,
you did, in the city and County of Honolulu, state of Hawaii, you
EG Gpetate a moter vehicle without first being appropriately
examined and sly licensed as a qualified driver of that vehicle
{n'viclation of ection 266-102 of the Havail Revised Stal
That's your third offense for driving without @ license.
And siz, on that same day in the City
Honolulu, State of Hawail, you did drive a vehicle at 2 speed
Greate: than the maximun speed Limit stated on signs placed by the
Gizector of transportation with respect to highways under the
Girector’ s jurisdiction by traveling at a speed of 88 niles per
hour in a Sd-mile-pershour zone thereby violating Section 291C~
102(b) of the Hawaii Revised statutes
(Emphasis added.) Kekuewa pled not guilty.
‘The court considered Officer Gepusan’s testimony as a lay opinion,
rather than an expert opinion. There is no evidence in the record a5 te
Whether Kekuews passed or falied the field sobriety test.
6
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
‘At trial, Kekuewa claimed that he was not the driver of
the truck and that he had switched seats with Conrad. Kekuewa
explained that he had been sleeping in the passenger’s seat when
conrad woke him up. Kekuewa testified that Conrad told him,
Kekuewe
“brah, I got a warrant, brah, just hop over. .
admitted consuming alcohol earlier in the day, but claimed that
he stopped drinking at approximately 4:00 p.m. He further
explained that he had been surfing and barbecuing at Sandy Beach
all day, and that those activities, in addition to fatigue,
caused the appearance of intoxication observed by the police
officers during the incident in question.
Based upon the evidence, the district court found
Kekuewa guilty of the offenses of OVUIT, DWOL, and Speeding.”
With respect to the offense of OVUIT, the court sentenced Kekuewa
to a ten-day tezm of incarceration, ordered him to pay 2 $1,000
fine, suspended his license for one year, and ordered him to
obtain substance abuse treatment. With respect to the offense of
DWOL, the court sentenced Kekuewa to six months of probation.
With respect to the offense of Speeding, the court ordered
Kekuewa to pay a $200 fine. The court filed a “Notice of Entry
of Judgment and/or Order and Plea/Judgment” on March 22, 2005.
Kekuewa filed a timely notice of appeal on April 20,
2005.
on appeal, Kekuewa argued that: (1) he did not have
adequate notice of the offense of OVUII because the prosecution
+The district court had earlier dismissed the charge alleging &
safety certification violation snasnuch as the prosecution failed to make =
Etina’escie case that Kekuewa operated a vehicle on a public highway without a
Current official certificate of inspection.
7
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
failed to properly allege the attendant circumstances of
Kekuewa’s prior conviction; and (2) the record lacks sufficient
evidence to support his conviction for committing the offense of
OVUIZ. The prosecution answered that: (1) Kekuewa had
sufficient notice that he was charged with OVUIT, insofar as (a)
prior convictions are extrinsic and need not be alleged in the
prosecution’s charge, and (b) Kekuewa was sufficiently apprised
of the elements of the offense of OVUII, the absence of the
language “within five years” notwithstanding; and (2) sufficient
evidence was adduced at trial to support Kekuewa’s conviction of
the offense of ovuII.
On August 10, 2006, the ICA filed a published opinion
reversing Kekuewa’s OVUII conviction. The ICA first rejected the
prosecution's “primary argument” that this court’s decision in
Domingues, designating prior OVUIT convictions as prima facie
elements, contradicts prior state and federal precedent and
should be overruled, State v. Kekuewa, 112 Hawai'i 269, 276 n.6,
145 P.3d 812, 619 n.6 (App. 2006). The ICA thereafter concluded
that “[t]he five-year time period omitted from the oral charge
was a critical part of the HRS § 291E-61(b) (2) attendant
circumstance, one with especial resonance in this case in light
of Defendant's several prior DUI convictions.” Id, at 277, 145
P.3d at €20. Accordingly, the ICA held that the absence of the
five-year time period rendered the prosecution's oral charge
defective. Id, In light of the dispositive nature of the
foregoing conclusion, the ICA did not reach Kekuewa’s claim that
the evidence was insufficient to support his OVUII conviction.
Id
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **¢
‘The ICA filed a judgment on appeal on August 23, 2006,
and the prosecution filed a timely application for writ of
certiorari on Novenber 6, 2006.
on Decenber 5, 2006, this court accepted certiorari and
filed an order requesting supplenental briefing as to whether
this court’s interpretation of HRS § 2918-61(b) (Supp. 2002) in
Domingues is applicable to the underlying prosecution commenced
on October 11, 2004, given the subsequent amendments made to HRS
§ 2918-61(b) by 2003 Haw. Sess. L. Act 71, $ 1, at 123-24 ("Act
71"), effective January 1, 2004, Oral argument was held on March
21, 2007.
IX, STANDARDS OF REVIEW
A. Certiorari
‘The appropriate standard of review for determining
whether to accept or reject an application for writ of certiorari
is set forth in 2006 Haw. Sess. L. Act 149, $ 1, as follows:
wuance of the intermediate appellate court's
‘order, a party may seak review of the
IntStmedsate appellate court's decision and judgment or dismissal
“Snly by application to the suprene court fora writ of
Gertiorarl, the acceptance or rejection of which shall be
Giseretionary upon the supreme court.
{b) the application for writ of certiorari shall tersely
state ite grounds, which shall include
Cd) Grave errors of law o of facts or
{2} Obvlous inconsistencies in the decision of the
Untermediate appellate court with that of the suprene
court, federal decisions, oF its own decision,
and the magnitude of those errors cr inconsistencies dictating the
heed for further appeal.
Sufficiency of the Complaint
“Whether (a complaint] sets forth all the essential
(a) After is:
judgment or dismiss
elements of [a charged] offense . . . is a question of law,’
which we review under the de novo, or ‘right/wrong’ standard.”
State v. Cummings, 101 Hawai'i 139, 142, 63 P.3d 1109, 1112
8
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
(2003) (citing State v. Merine, 81 Hawai'i 198, 212, 915 P.24
672, 686 (1996) (quoting State v. Welle, 78 Hawai'i 373, 379, 894
P.2d 70, 76 (1998))).
©. Sufficiency of the Evidence
When reviewing the sufficiency of the evidence, this
court has previously set forth the following standard of review:
the appellate court passes on th
evidence to support a conviction; the same standard spplies
Whether the case was before a Judge or a jury. The test on appeal
(Quilt is established beyond a reasonable doube, but
was substantial evidence to support. the conclusion
of fact. “Supstanvial evidence” aa to every material
flenent of the offense charged is credible evidence which is of
Sufficiency quality
Feasonable caution to support 2 conclusion,
State v. Vialielmo, 105 Hawai'i 197, 202-03, 95 P.34 952, 957-58
(2004) (block quote formatting removed) (internal citations
omitted) (some internal quotation marks omitted) (brackets
omitted).
IIT, DISCUSSION
‘A. State v. Domingues
The central issue on appeal is whether the ICA properly
ruled that the prosecution's oral charge was insufficient based
on its conclusion that the prosecution was required to inform
Kekuewa that the charged offense occurred within five years of a
prior OVUIT conviction, rather than merely informing him that he
was being charged with “violating Section 291E-61 of the Hawaii
Revised Statutes for this] second offense.” (Emphasis added.)
The prosecution acknowledges that Domingues indicates
that the contents of HRS § 2918-61(b) (1)-(4) (Supp. 2002)
constitute attendant circumstances that must be incorporated into
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the prosecution’s charge. However, the prosecution contends that
Doningues was erroneously decided inasmuch as: (1) the plain
language and legislative history of HRS §§ 2918-61(b) (1)-(3)
(supp. 2002) do not indicate an intent to make prior convictions
‘an element of the offense of OVUII; (2) Domingues’ conclusion
that HRS § 2916-61 (b) (1)-(3) (Supp. 2002) are intrinsic and must
be included in the prosecution’s charge is a misapplication of
the intrinsic/extrinsic analysis and contrary to establishe
state and federal case lav; and (3) prior convictions have
traditionally been considered as sentencing factors, and the
introduction of prior conviction evidence during the guilt phase
of a trial is prejudicial to a defendant.
In Domingues, on March 21, 2002, Kyle Evan Domingues
(“Domingues”) was charged with the following offenses: *(2)
habitually driving under the influence of intoxicating liquor
(2) driving
without Lights (Count 11), in violation of HRS § 291-25 (a)
(count I), in violation of HRS § 291-4.4. .
(1993); and (3) driving while license suspended or revoked (Count
qr1), in violation of HRS § 286-132 (Supp. 2001)." Domingues,
106 Hawai'i at 482-83, 107 P.3d at 411-12 (footnote omitted).
count 1 of the indictment alleged tha
on or about the 9th day of August 2001, in the City and County of
Ronoluity State of Hawai'i, KYLE EVAN DOMINGUES did operate oF
Nosome actual physical control of the operation of any vehicle
meaning thst be
mille uoetne in¢luence of intoxicating tiquor in an amount
Sofficient to inpair his normal mental faculties or ability to
fare for himself and guard against casualty, and had bean
ene re _ er ten
= Gid operate oF assume
eeransee silat costrol of the operation of any vehicle while with
“os or hove grant of alcohol per! one hundred milliliters, or cuble
centineters of block
Sz.08 oF more arama of alcohol per two
f ‘end had been convicted three ox more
ines for driving under the influence offenses during a ten year
na
{+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
period, thereby committing the offense of tabitually Driving Under
Sections 221-4461 (1) and/or 2oi-t.diali2) of the daveit fevised
‘Siatuen Tic]
Ids at 493, 107 P.3d at 412 (emphases in original)
HRS § 291-4.4(a) (Supp. 2000) reads, in.pertinent part,
as follow:
91-44 Habitually driving under the influence of
Antoxioating Liquor or drugs. (a) A person commits the offense of
habitually driving under the influence of intoxicating Liquor or
drugs if, during a ten-year period the person has been convicted
three or more tines for's driving under the influence offense; and
1)" The person operates or assumes actual physical control
Of the operation of any vehicle while under the
influence of intoxicating Liquor, meaning that the
Person is under the influence of intoxicating Liquor
En an anount sufficient to impsir the person's normal
ental faculties or ability to care for oneself and
guard against casualty;
(2) The person operates or assunes actual physical control
of the operation of any vehicle with .08 or more grams
Of alcohol per one hundred milliliters or cubic
Centineters of blood or .08 or more gran of alcohol
per two hundred ten liters of breath
Problematic, however, was the fact that HRS §§ 291-
4.4(a) (1) and (a) (2) were in effect at the time of Domingues’
conduct, but not at the time of his indictment. Dominaues, 106
Hawai'i at 484, 107 P.3d 413, Effective January 1, 2002, the
legislature had repealed HRS § 291-4.4 and enacted HRS § 2916-61.
Ida (citing 2000 Haw, Sess. L. Act 189 (“Act 189"), $§ 21-22 at
404). Accordingly, Domingues filed a motion to dismiss the
at 483, 107 P.3d at 412. The circuit court
indictment.
granted the motion and dismissed the indictment without
prejudice. Id. The court subsequently denied the prosecution's
motion for reconsideration, and the prosecution filed a timely
notice of appeal. Ids
On appeal, this court agreed with the prosecution’ s
argument that prosecuting Domingues “under the repealed statute
12
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“$ HAWAII REPORTS AND PACIFIC REPORTER ***
was permissible(,} as the new statute no[t) only encompasse[d)
the same conduct as the repealed statute[,] but also impose(d)
the same punishment upon conviction.” Id, at 484, 107 P.3d at
413 (sone alterations in original and some added). This court
concluded that ARS §§ 2916-61 (a) and (b) (4) (Supp. 2002)
substantially reenacted the provisions set forth in HRS $§ 291-
4.4 (a) (1) and (a) (2), despite the fact that HRS § 291-4.4 made
proof of three or more convictions within a ten-year period 2
prima facie elenent of the offense of habitually driving under
the influence of intoxicating Liquor or drugs and HRS § 291E-
61(b) (4) (Supp. 2002) appeared to reserve consideration of prior
convictions for sentencing. See ids at 486, 107 P.3d at 419 ("By
their plain language, the relevant provisions of HRS § 291E-61
‘re-enact’ the definition of the offense contained in HRS § 291-
1m) (Bootnote omitted.).
4.4 ‘without substantial change:
In achieving that result, this court acknowledged that
RS § 2916-61 (b) (Supp. 2002) was prefaced with language
indicating that it pertained to sentencing. Id, at 487, 107 P.3d
at 416, However, this court perceived a potential due process
problem with construing HRS $§ 2918-61 (b) (1)-(4) (Supp. 2002) as
sentencing factors, insofar as the prosecution would not be
required to allege them in its charge. Id. at 487 n.8, 107 P.3d
at 416 n.8. Excluding such information from the charge would
result in a defendant’s inability to ascertain whether he or she
was charged with a petty misdemeanor or a class C felony, thereby
preventing him or her from knowing whether he or she was entitled
to atrial by jury. Id.
This court thus concluded that
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the degree of punishnent for s violation of HRS § 2915-61 (a)
escalates as a function of whether the violation constitutes: (1)
2'first offense, or sny offense not preceded within a five-year
period by a [prior and Like] conviction,” RS § 2918-61(b) (117. (2)
San offense that occurs within five years of @ prior (and like]
conviction," HRS $ 2916-61(b) (2); (3) "an offense that occurs,
within five years of two prior (and like) convictions," ARE §
2918-61 (b) (3); or, as in the present case, “an offense that occurs
Mithin ten years of three oF more prior (end 1ike] convictions,”
HRS '¢'2912-61(5) (4). - - dn gther words, the fovesoing
Bretatory lancuace of HRS § 2e16-Gibi CT) chroaah Zolp=e1 ili
‘Sesoribes attendant clreunstancas That are Intrineic to and
Senmesned™ in the blerarchy of offenses that HAS € 291-61 asa
mole describes.
Ida at 487, 107 P.3d at 416 (emphasis added). This court
continued:
[IDE the “aggravating circumstances” justifying the
imposition of an enhanced sentence are "enmeshed in,” or,
put differently, intrinsic to the “comission of the crime
Charged,” then, in secordance with the (state v.}-Estradat,
{69 #aw. 204, 138 P.24 612 (1887)) rule, such aggravating
circumstances “push be alleged in the (charging instrument]
in order to give the defendant notice that they will be
Lied on to prove the cefencant’s guilt and support the
Sentence to be imposed, and they must be determined by the
trier of fact."
‘State wv. Schrosder, 76 Hawat's 517, 528, 880 P.2d 192, 203 (1994).
anim ution of
a iesdin ion ota
v + + We hold that when a fact susceptible to jury
Geterination is a predicate to the imposition of sn enhanced
sentence, the Hawai'i Constitution requires that such factual
determinations be sade by the trier of fact.
2 stor he. ia
he seat the aah
Eeeeattii ot tanlanuar eran ottenae ceistent oes ee
the anaiysie if Sahreeder protects the jury's role
Dy nandsting that the determination of tects intrinsic € the
offense be made by the trier of fact
Id, at 487-88, 107 P.3d at 416-17 (some brackets added and some
in original) (emphases in original) (ellipses in original)
1“
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(citing State v. Tafova, 91 Hawas'i 261, 270, 273, 982 P.2d 890,
899, 902 (1999)).
Based upon the foregoing analysis, we vacated the
circuit court's order dismissing the indictment and remanded the
matter for further proceedings. Id. at 488, 107 P.3d at 417.
Here the prosecution asks this court to overrule
Domingues to the extent that it characterizes the provisions set
forth in HRS §§ 291E-61(b) (1)-(4) (Supp. 2002) as attendant
circunstances. We do not lightly overrule precedent. In State
vs Garcia, 96 Hawai'i 200, 29 P.3d 919 (2001), this court stated
as follow!
Precedent is “(aln adjudged case or decision of a court,
considered a2 furnishing an example of authority for an identical
Sevsinilar case afterwards arising of a similar question of law.”
a Law Bic 1176 {6th e4-1990) , The “(plolicy of
Sorts To stand by precedent and fot to disturb settled point [2)”
[e'referred to an the doctrine of stare decisis, id at 1406, and
Operates "ag s principle of self-restraint . - with respect to
the overruling of prior decisions.” Robinson’ v. Arivoshi, 65 Har
Gel, €53 nelO, eS€ P.24 287, 297 n.10. (2982), reco
Ge aw. $28, 126 P.2d 1139 (1983). The benefit of stare
SERS, fF thac it Sturnish(es) a clear guide for the conduct of
Shaividuels, to enable then to plan their affairs with assurance
ageinet untoward surprise; . . = eliminat [es] the need to
SUeGate every relevant proposition in every caser and...
aintein{s] poblic faith in the judiciary as a source of
Gapersonal and reasoned Judgnents,” Id. (citing Moraane v._states
396 U.8. 375, 403, 90.5.Ct. 1772, 26 LiEd.26
Ss as70)7
hile “there is no necessity or sound legal reason to
perpetuate an error under the doctrine of stare decisis(,)” ida
(internal quotation marks and citation omitted), we agree with the
proposition expressed by the United States Supreme Court that «
Eourt should whot depart from the doctrine of stare decisis
Without =
.* Hilton vs South Carolina
.Cemagy $02 0.5. 137, 202, 1i2 $.ct- 560, 116 L.Ea.2d 960
{is91) (emphasis added). CE,
oe. 92 Bawai's 398, 421, 992 P-2a 93, 116 (2000) (stating
Fatt cuurt should not overrule ite earlier decisions unless the
post cogent reasons and inescapable logic require it”) (internal
Quotation narks and citations omitted). Thus, “when thle court
‘Retsanines a prior holding, ite judgment is customarily informed
By'a sevies of prudential and pragaatic considerations designed to
Ret the consistency of overruling a prior decision with the ideal
Ef the rule of la, and to gauge the Fespective costs of
1s
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *+*
firming and overruling a prior
p nis v.
5 0.8.
333, 884, 12 3.ct-
2791, 120 1.83.20 67¢ (1982) 4
of slare decisis have special sore in the ares Of starters
Anteroxaiation, for here, unlike in the contest of constitutional
jnteroretation the lecislative cover ia ieplicated. and [tne
Sad citation omitted)
Ada at 205-06, 29 P.3d at 924-25 (brackets in original) (ellipses
in original) (some emphases in original and some added) .
As previously mentioned, the prosecution contends that
Domingues was erroneously decided inasmuch as: (1) the plain
language and legislative history of HRS §§ 2916-61 (b) (1)~(3)
(Supp. 2002) do not indicate an intent to make prior convictions
an element of the offense of OVUIT: (2) Domingues’ conclusion
that HRS § 2918-61(b) (1)-(3) (Supp. 2002) are intrinsic and must
be included in the prosecution’s charge is a misapplication of
the intrinsic/extrinsic analysis and contrary to established
state and federal case law; and (3) prior convictions have
traditionally been considered as sentencing factors, and the
introduction of prior conviction evidence during the guilt phi
of a trial is prejudicial to a defendant.
1, The-plain language and leaislative history of HRS $6
2a1Be = (b)
Admittedly, a fair reading of HRS § 2918-61(b) (Supp.
2002) provides the initial impression that ite contents describe
sentencing factors, rather than attendant circumstances, given
the fact that HRS § 291E-61(b) (Supp. 2002) is prefaced with
language stating that “a person committing the offense of
operating a vehicle under the influence of an intoxicant shall be
sentenced as follows[.)” (Emphasis added.) Domingues conceded
that fact, but further recognized that construing HRS §§ 2918-
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(__t## FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER °° _
61(b) (2)-(4) (Supp. 2002) as extrinsic sentencing factors would
have raised serious concerns regarding the statute's
constitutionality, given a defendants inability to ascertain the
class and grade of the offense charged (ive., @ petty misdemeanor
or a class C felony) and whether the right to a jury has or has
not attached. Thus, Domingues concluded that HRS § 2916-61(b)
(supp. 2002) delineated attendant circumstances differentiating a
hierarchy of offenses. That conclusion is sustainable on the
grounds that this court impliedly conformed to the principle of
statutory interpretation that a statute shall be construed in a
manner that does not offend the state and federal constitutions.
See In-xe Jane Doe, 96 Hawai'i 73, 61, 26 P.3d 562, 570 (2001)
(othe doctrine of ‘constitutional doubt,’ 2 well-settled canon of
statutory construction, counsels that ‘where a statute is
susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of which
such questions are avoided, our duty is [to] adopt the latter.”)
(citations omitted.)
‘The same rationale was utilized by the United states
Supreme Court in Jones v. United States, 526 U.S. 227 (1999). In
Jones, the United States Supreme Court interpreted a federal
carjacking statute, which then read as follows
vinoever, possessing a firearm as defined in section 921 of
this title, taker a motor vehicle that has been transported,
Shipped, of Feceived in interstate or foreign commerce from’ the
person or presence of another by for’ ‘lolence or by
Tntimidation, or ateenpes to do a0, shail
SUI} be fined under this title or imprisoned not more then
18 years, or both,
S{g) de serious bodily injury (as defined in section 1365 of
this title) results, be fined under this title or imprisoned not
nore than 25 years, or both, and.
(3) if death results, be fined under this title or
imprisoned for any nusber of years up to life, or both.
uv
'+* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
Jones, 526 U.S. at 230 (citing 18 U.S.C. § 2119 (1988)). At the
outset, the Court noted that the dispositive issue was whether
the foregoing carjacking statute “defined three distinct offenses
or a single crime with a choice of three maximum penalties, two
of them dependent on sentencing factors exempt from the
requirements of charge and jury verdict.” Id, at 229. when
resolving that issue, the Court concluded that construing the
statute as describing a single offense would “raise serious
constitutional questions on which precedent is not
dispositive(,]” id. at 251, and that, based on the doctrine of
“constitutional doubt,” the statute must be construed as
“establishing three separate offenses by the specification of
distinct elements, each of which must be charged by indictment,
proven beyond a reasonable doubt, and submitted to a jury for its
verdict.” Id. at 252.
Similarly, Domingues involved a statute that arguably
presented itself as susceptible to two interpretations, one of
which produced a single offense with a choice of four maximum
penalties, and the other of which produced four separate offenses
by the specification of distinct elements. To reiterate, the
constitutional doubt in Domingues, precluding the former
interpretation, was that 2 defendant charged under HRS § 2912-61
(Supp. 2002) would not have had sufficient notice of (1) whether
he or she was charged with a petty misdemeanor or a class C
felony, and (2) whether he or she was entitled to a jury. Thus,
We avoided the constitutionally questionable interpretation, as
did the Court in Jones.
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Finally, the prosecution's argument that legislative
history does not indicate an intent to construe HRS § 2916-61 (b)
(Supp. 2002) as attendant circumstances does not undermine the
foregoing conclusion insofar as the absence of legislative
guidance one way or the other should not compel us to reverse our
recent position and reinterpret HRS $ 291E-61(b) (Supp. 2002) in
a manner that would cast doubt on its constitutionality.
2. The xtrinsi de) nal
hat wv
Furthermore, addressing the prosecution’s final two
sub-argunents, we believe that Domingues is not inconsistent with
the intrinsic/extrinsic analysis developed by this court’s prior
decisions in State v, Estrada, 69 Haw. 204, 738 P.2d 612 (1987),
State v. Schroeder, 76 Hawai'i 517, 880 P.2d 192 (1994), and
y. Tafoya, 91 Hawai'i 261, 982 P.2d 890 (1999).
In Estrada, we reviewed a defendant's appeal from the
second circuit court's judgment convicting him of the offense of
attempted murder and sentencing him to life imprisonment without
the possibility of parole for the shooting of an on-duty Maui
County police officer. Estrada, 69 Haw. at 206, 738 P.2d at 816.
‘The defendant-appellant argued that he did not have fair notice
of the enhanced sentence, in contravention of his due process
rights, because the prosecution did not allege the enhanced
sentencing statute -- HRS $ 706-606.1(1) (a) (1985) -- in the
12 follows:
* Rs $ 706~606.2(2) (a) (2985) provid
15706-606.1] Sentence for offense of atteapted murder. The
court shall sentence a person who has been convicted of attenpted
Sunder to an indeterminate orm of imprisonment a5. follows:
2) ““iife Imprisonment without possibility of parole in the
attempted murder of:
(continued...)
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complaint and the jury did not make the factual determination
that the police officer was on-duty when shot. Id, at 213, 738
P.2d at 819-20. We agreed, stating that appellant had a due
process right to have “‘fair notice of the charges against’ him,”
Ada at 230, 736 P.2d at 829 (citing State v. Anao, 59 Haw. 625,
635-36, 586 P.2d 250, 258 (1978), subsequent resolution, 66 Haw.
682, 693 P.2d 405 (1984), superseded by statute as stated in
Briones v. State, 74 Haw. 442, 456 n.7, 848 P.2d 966, 974 n.7
(1993)), and that “the aggravating circumstances must be alleged
in the indictment and found by the jury.” Id. (emphasis in
original). Thus, ve held that the jury, and not the sentencing
judge, was required to make the factual finding that the police
officer was on-duty when shot. Id.
In Schroeder, we further distilled the doctrine.
‘Therein, we explained that Estrada embodied the notion that.
intrinsic facts justifying the imposition of an enhanced sentence
must be alleged in the charging instrument. Schroeder, 76
Hawai'i at 528, 880 P.2d at 203. Extrinsic or “historical”
facts, on the other hand, need not be alleged in the charging
instrument, and are properly determined by the sentencing court
after the adjudication of guilt by the trier of fact. Id. We
ultimately concluded that the use of handgun ~~ a fact justifying
the imposition of an enhanced sentence pursuant to HRS 706-
660.1(a) (1985)” ~~ was a fact intrinsic to the charged crime of
ontinued)
(a) A peace officer while in the performance of his
autiest.)
7 Rs § 706-660.2(a) (1985) provides as follows
continved.«.)
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Kidnapping, and that the prosecution sufficiently alleged that
fact in the complaint. Id, at 528, 530, 880 P.2d at 203, 205.
Subsequently, in Tafoya, this court reviewed a
defendant’ conviction of the offense of second degree assault
and extended term of imprisonnent. The defendant was charged
with, and convicted of, committing the offense of assault in the
second degree, Tafoya, 91 Hawai'i at 266, 982 P.2d at 695.
Following the defendant’ s conviction, the prosecution filed a
motion for an extended term of imprisonment pursuant to HRS §
706-662 (5) (Supp. 1998). Id, The sentencing court granted the
prosecution’s motion and sentenced the defendant to an extended
indeterminate ten-year term of incarceration. Id, at 266-67, 982
P.2d at 895-96. On appeal, the defendant claimed that there was
insufficient evidence presented before the sentencing court that
(2) [the victim] was sixty years of age or older at the time of
the assault and (2) that (the defendant] knew or reasonably
should have known this fact.” Id. at 269, 982 P.2d at 698.
‘This court firet addressed the issue whether such
“findings, which are essential to the imposition of an enhanced
continued)
{5706-660.1] Sentence of imprisconent for use of a firearm
in a felony. {a} A person convicted of a felony, where the person
has’ firearm in his possession ang threatened its use or used the
Zivearn while engaged in the commission of the felony, may be
Sentenced toa mandatory term of imprisonment the length of which
shall be #3. follows:
(1) "For a elass A felony--up to 10 years; and
(2) For 8 class B felony--up to 5 years.
‘the sentence of imprisonment for a felony involving the use of =
Hreare ae provides in this subsection shall not be subject to the
procedure for determining inimim term of imprisonnent prescribed
Gncer section 706-€69, providea further that @ person who is
Unpeisoned in correctional institution as provided in this
Subsection shall become subject to the parole procedure as
prescribed in section 706-670 only upon the expiration of the term
Be mandatory imprisonsent fixed under (a) (1) oF (2), heres
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term of imprisonment, may legitimately be made by the sentencing
court [(ise., extrinsic facts)], or whether they are required to
be submitted to and found by the trier of fact [ (ives, intrinsic
facts)].” Id. at 270, 982 P.2d at 899. This court subsequently
extrapolated upon the difference between intrinsic and extrinsic
facts:
In reviewing our previous case law, it 19 apparent that
“intrinsic” factors, required to be pled in the ineictment and
found by the jury, are distinguishable in that they are
contenporaneous with, and enmeshed in, the statutory clenents of
the proscribed offense. Contrarily, “extrinsic factors are
separable from the offense itself ia that they inveive
Consideration of collateral events or infornation, Occurrence at
fa prior tine is indicative, although not dispositive, of a
Conclusion that 2 factor is “extrinsic.” for example, ARS § 706-
‘662 (a) (Supp. 1987) provides that a defendant may be gentenced to
fan extended tern of inpriscrment upon a finding that “[e}he
defendant is a professional crininel{.) The court shall not make
this. finding Unless. - the anc Show that
tthe defendant has knowingly engaged in criminal activity aso
ajor source of livelihood|.]"" (Eephasis added). Although this
section refers to the “circumstances of the crime,” and therefore
implies consideration of information contemporaneous with the
commission of the offense, this finding is nevertheless
“extrinsic.” A finding under this section is separable from the
statutory elenents of the offense in a aanner qualitatively
Gifterent fron, for example, the “intrinsic” finding that the
offender utilized a semiautomatic weapon in the course of
committing the offense charged. Requiring the jury to sake such a
Finding would require the samission of potentially irrelevant and
prejudicial evidence and contaminate the jury's required focus on
the specific elenents of the offense charged{.]
Ad. at 271, 982 P.2d at 900 (some brackets in original and some
added) (ellipses in original) (emphasis in original) (footnote
omitted).
Citing the “necessity of upholding a defendant's
constitutional rights to trial by jury and procedural due
process[,]” id, at 272, 982 P.2d at 901 (footnote omitted), this
court held, inter alia, that (1) for purposes of enhanced
sentences, “findings regarding (a) the age or handicapped status
of the victim and (b) whether ‘{sJuch disability is known or
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Teasonably should be known to the defendant’ entail ‘intrinsic’
facts{]" that are “inextricably enmeshed in the defendant's
actions in committing the offense charged{,]” Zafova, 91 Hawai't
at 271, 982 P.2d at 900, and (2) “when a fact susceptible to jury
determination is a predicate to the imposition of an enhanced
sentence, the Hawai'i Constitution requires that such factual
determinations be nade by the trier of fact.” Id, at 273, 982
p.zd at 902. Insofar as the foregoing factual determinations
were made by the sentencing court and not the jury, this court
reversed the imposition of an extended term of imprisonment under
HRS § 706-662 and remanded the matter for resentencing without
enhancement. Ide at 275, 982 P.2d at 904.
A fair reading of the foregoing cases arguably supports
the prosecution’s argument that recidivism (ie., prior
convictions) is generally a fact or circumstance extrinsic to the
charged offense. However, Domingues presented the rare occasion
in which recidivism was @ prima facie element of the crime
charged. As mentioned, this court interpreted the provisions of
RS § 291E-61(b) (Supp. 2002) as describing attendant
circunstances, and it would be disingenuous to suggest that such
prima facie elements are not intrinsic to or enmeshed in the
offense. Thus, while we acknowledge the general view that
recidivisn is extrinsic, the unique circumstances presented in
Domingues countenanced the conclusion that prior convictions were
intrinsic to, or enmeshed in, the habitual OVUII offenses
described by HRS § 2916-61(b) (2)-(4) (Supp. 2002) by virtue of
their status as prima facie elements.
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Accordingly, we perceive no compelling justification to
overrule this court's prior decision in Domingues, and the
Prosecution’s argument is without merit. Inasmuch as the
prosecution provides no further argument, it has failed to
demonstrate grave error on the part of the ICA.
B. The ICA Should Have Remanded the Matter for Entry of
Judgment of Conviction of the Offense Described by HRS §§
291E-61(a) and (b) (1) (Supp. 2004) and Resentencing in
Accordance Therewith.
The prosecution next argues that, even if this court
declines to overrule Domingues, the ICA erred by reversing
Kekuewa’s conviction as opposed to remanding for resentencing
under HRS § 2918-61(b) (1) (Supp. 2004). For the following
reasons, we agree.
It is a well-settled principle that a criminal
defendant’ s conviction will be reversed where the complaint,
indictment, oral charge, or information is defective in such a
way that it fails to state an offense:
1t Le well settled that an “accusation must
sufficiently allege all of the essential elenents of the
offense charged,” a requirenent that “obtains whether an
Sccusation is in the nature of an oral charge, information,
indictment, or complaint (.]”" 58 Baw.
279, 281, $67 p.2a 1242, ize STITT? meeord
Anzac, 18 Hewai'i 66, 69-70, #90 P.2d 303, 306-07 (1985);
77 Mawas's' 309, 311, 864'P.24 372, 374
(1987]- Put differently, the sufticiency of the charging
instrument is measured, inter alia, by “whether it contains
the elements of the offense intended to be charged, end
sufficiently apprises the defendant of what he (or she] must
bbe prepared to meet [-)" ye Wella, 78 Hawal'i 373,
379-80, 894 P.2d 70, 76-77 (1995) (citations and internal
quotation marks onltted) (brackets in original). "A charge
defective in this regard amounts to a failure to state an
offense, and a conviction based upon it cannot. be
for that would constitute a denial of due. proce
Aauinusch, $8 Raw. at 281, "S67 P.2d at 1248 (el
oaltteay
[Seate 2. IMaring, #1 Maval's (198,) 212, 915 P.24 (672,) 686
((1396)] Tsone Brackets added and ‘sone in original): Ia other
24
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
words, an oral charge, complaint, or indictment that does not
‘Beate’ on offense contains within it a substantive Jurisdictional
Gefect, rather than simply « defect in form, which renders any
Subsequent trial, judgment of conviction, of sentence a nullity.
dee 1 T Hawai'i at 73, 690 P.2d at 310 (quoting Eliiott, 77
Reraliat' 311, s8¢ P-20 at 374 (quoting Jandrusch, 58 Haw. at
261, S67 P.20 1244); ElLdost, 77 Hawai'i at 312, 606 P.2d at 375,
(tthe enisoion of oh essential element of the crine charged is «
defect in substance rather than form”) (quoting Jandrusch, 58 Haw.
at.201, 567 Pe2d-at 1266)); ra) Hews 1, 6
(isd) (failure to state an offense 13-8 “Jurisaictional point");
2) Haw, 65, 102, (1923) (Peters, C.J,
Pekktrring) (eislaslure of an’ indicement|,] complaint, or oral
Charge] te state facts sufficient to constitute an offense against
the Yew fe Jurisdictionsl(;].. - . an indictaent(,) (complaint, oF
Oral charge]... is essential to the court's jurisdiction,”
(brackets added) HRS § 606-34 (1993) (explaining that an
Indletaent say state an offense “with so much detail of time,
place, and circanstances and auch particulars as to the person (if
Eny) against whom, and the thing (If any) in respect to which the
Gtfense was committed, a are necessary(,]” inter alia, "to show
Ehat tne court has jurisdiction, and to give the accused
Feasonsble notice of the facts”). That being the case, reversal
Sf a conviction obtained on such a defective accusation does not
Soquire a showing of prejudice. See Elliott, 77 Hawai'i at 311,
i prddat 374 lagreoing with the ICA that inasmuch as defendant
Could not demonstrate and did not assert prejudice where an
Sienent was omitted from an oral charge, "(t]he question, then, {3
Whether the oral charges can be reasonably construed to charge
[the defendant] with the offenses [of waich the defendant was
Convicted)” (sone brackets added and gone in original) (citation
fand quotation signals cnitted) GE aw. 586,
586-87, 123 b.24 165, 105-86 (1986) (conviction obtained on oral
Charge’ reversed for failure to state ‘element” of intents
Presudice not addressed); State v, Faulkner, 61 Haw. 177, 177-7
Bos Poza 268, 2es-e6 (1979) (same)? state v. Borochow, 66 Hawa:
183, 193, 948 P.2d 604, 616 (App.1997) (reversing conviction
bechuse charge could not be reasonably construed to state an
offense). Gh, State v. Spratling, 99 Hawai'i 312, 320, 88 P.3¢
216, 264" (2002) toting that If an indictment merely omits @ word
father than “an essential element of the offense, the harnle:
Grror doctrine is applicable” and 2 defendant who challenges th
‘onizeion for the first time on appeal must demonstrate substantial
prejudice). This is because a defect ina complaint is not one of
here form, which {s waivable, nor simply one of notice, which may
Be Gecned harnless if 2 defendant vas actually avare of the nature
bf the accusation against him or her, but, rather, is one of
Sustantive subject aatter jurisdiction, ‘which may not be waived
or dispensed with,” see Jendrusch, 58 Haw, at 281, 567 P.2d at
Ted, and that is per-ge prejudicial, gaa’ (State ¥, JMotta, 66
How.” (89,] 81, 657 P-2 (4039,] 1020" ((1983)1
(quoting State v, Thompson, 356 F.2d 216, 226 (2d Cir.1965)).
25
FOR PUBLICATION IN WEST’
Cummings, 101 Hawai'i at 142-43, 63 P.3d at 1112-13 (some
brackets in original and some added) (ellipses in original)
HAWAII REPORTS AND PACIFIC REPORTER
(emphasis in original).
Our case law further supports the proposition that an
appellate court may nevertheless remand for entry of judgment of
conviction and resentencing as to any offenses adequately set
forth in the accusation (i.e., the complaint, indictment, oral
charge, or information).
In State v. Elliott, 17 Hawai'i 309, 884 P.2d 372
(1994), Hawai'i County Police officers Paula Watai ("Officer
Watai*) and Belinda Kahiwa (Officer Kahiwa") attempted to arrest
Marian Lois Elliott (“Elliott”) based upon an incident that
occurred on June 28, 1991 at a Kailu:
Elliott, 77 Hawai'i at 310, 884 P.2d at 373. During the arrest,
Elliott “unsuccessfully tried to bite Officer Watai and
-Kona apartment building.
subsequently bit Officer Kahiva.” Id. As a result, Elliott was
charged with committing the offenses of Resisting Arrest, Assault
Against a Police Officer, and Disorderly Conduct. Id. The oral
charge r
id, in pertinent part, as follows:
fon er about the 28th day of June, 1991 in Kona, County and
State of {Hawai'i}, Marian Lois Elliott attempted to prevent a
Peace Officer acting under color of hie official authority from
jeting an arrest by using or threatening to vse physical force
against the peace officer or another thereby committing the
Offense of resisting arrest in violation of Section 710-1026 (2) (a)
[Hawai'i] Revised Statutes es [elmended.
on or about the 28th day of June, 1991 in Kona, County and
State of [Hawai'i] Marian Lois Elliott intentionally,” knowingly
[or] recklessly caused bodily injury to Officer Belinda Kahiua by
biting her thereby committing the offense of assault in the third
degree, assault of police office [sic] violation of Section 107-
712.5" (wamai'i) Revised Statutes as (a)mended.
26
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
22, FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER "*_
Jd (brackets in original) (emphases in original) (footnotes
omitted). Following trial, Elliott was convicted of the charged
offenses. Id. at 309, 884 P.2d at 372.
on appeal, the ICA
recognized that the two counts of the oral charge onitted
Essential elements of the offenses charged, but ruled thet a
STiveral construction standard” applied and . . . held that under
thet standard, because the two otherwise flaued counts
Ngpecificaliy referred to the statutes defining the offenses, and
[elliott] hag clained no prejudice resulting from the deficiencies
dn the oral charge,” the oniesion of essential elements did not
require ri
Id. at 311, 884 P.2d at 374 (brackets in original) (quoting State
Elliott, 77 Haw. 314, 318, 884 P.2¢ 377, 381 (App. 1994),
cert, aranted, 76 Haw. 247, 671 P.2d 795 (1994)).
Reviewing the ICA's opinion on application for writ of
certiorari, this court agreed with the ICA that a “liberal
construction standard” applied, but rejected the view that a mere
statutory reference satisfied that standard. Id, We stated
that, “unless the challenged counts can otherwise ‘within reason
be construed to charge (crimes],’ the r
isting arr
and
assault against a police officer convictions must be reversed.”
Id, at 312, 884 P.2d at 375. Analyzing the language of the
prosecution's oral charge, we concluded that the assault against
a police officer charge was fatally defective because it did not
allege that the offense was committed against “a police officer
who [was) engaged in the performance of duty(.]” Id. at 313, 864
P.2d at 376 (some brackets added and some in original). The
resisting arrest charge was defective because it completely
omitted any reference to the requisite state of mind, and “we
perceive(d] no way in which we could reasonably construe it to
charge resisting arrest or any included offense.” Id. Based
2
*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
upon the foregoing, we reversed Elliott's convictions of the
offenses of assault against 2 police officer and resisting
arrest. Id, However, we remanded for entry of judgnent of
conviction of assault in the third degree and resentencing in
accordance therewith because, “without the element that the
offense was committed against ‘a police officer who [was] engaged
in the performance of duty[,]’ the defective count actually
charged assault in the third degree.” Id, We noted that
“Ellfott can claim no prejudice as a result of being convicted of
assault in the third degree because assault in the third degree
is an included offense of assault against a police officer, and
the circuit court had the authority to convict Elliott of assault
in the third degree if unable to convict of assault against a
police officer.” Id.
Per Elliott, the ICA should have remanded the matter
for entry of judgment of conviction and resentencing as to the
offense described by HRS $§ 291E-61(a) and (b) (1) (Supp. 2004).
Here, as with the assault against a police officer charge in
Elliott, the prosecution’s oral charge contained one factual
accusation that could have supported two separate offenses. As
previously noted, this court concluded that the prosecution's
oral charge failed to sufficiently allege the offense of assault
against @ police officer. However, the same factual accusation,
absent the phrase, “a police officer who [was] engaged in the
performance of duty,” set forth the essential elements of the
included offense of assault in the third degree. similarly, the
prosecution's oral charge in the case at bar failed to adequately
set forth the essential elements of the offense described by HRS
28
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117 FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *°"_
95 2918-61(a) and (b) (2) (Supp. 2004). Nevertheless, absent the
phrase “for your second offense,” the prosecution's oral charge
set forth the essential elements of the included offense
described by HRS $§ 291E-61(a) and (b) (1) (Supp. 2004). See.
State v. Ruggiero, No, 26940, plurality slip op. at 27-28 (June
5, 2007) (stating that a complaint mirroring only the provisions
set forth in HRS § 291£-61(a) (1), and making no mention of the
accused’s status as either a first-time or multiple offender,
sufficiently described the first-level OVUIT offense under HRS $5
2918-61(a) and (b) (1)); concurring and dissenting slip op. at 1
(same) (Nakayama, J., and Moon, C.J., concurring and dissenting).
Insofar as the oral charge sufficiently alleged an
offense under HRS §§ 291E-61(a) and (b) (1) (Supp. 2004), our
final inquiry is whether there was sufficient evidence to sustain
fa conviction thereunder. See Elliott, 77 Haw. at 313, 884 P.2d
at 376 ("[B]ecause all of the essential elements of assault in
the third degree were alleged in the oral charge and proven at
trial, we hold that the appropriate remedy for Elliott's post-
conviction challenge to the defective charge is to remand the
case for entry of judgment of conviction of assault in the third
degree and for resentencing in accordance therewith.”) (Emphasis
added.) Here, the record indicates that: (1) the vehicle in
question was traveling at an extremely high rate of speed and
weaving; (2) the driver of the vehicle did not initially respond
to officer Nishibun’s blue lights and sirens, and officer
Miyashiro had to force the vehicle to stop by positioning himself
in front of the vehicle and decelerating; (3) Kekuewa was seated
in the driver's seat when the police approached the vehicles (4)
29
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
Kekuewa appeared to fumble with the locking mechanism when
exiting the car; (5) Kekuewa had bloodshot and glassy eyes,
emanated a strong odor of alcohol, had slurred speech, and
appeared unsteady on his feet; and (6) Officer Gapusan testified
that, in his lay opinion, Kekuewa was impaired based upon his
performance on the field sobriety test. Viewed in the light most
favorable to the prosecution, see Vialielmo, 105 Hawai'i at 202,
95 P.3d at 957 ("We have long held that evidence 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
foregoing evidence is sufficient to sustain a conviction under
HRS §§ 291B-61(a) (1) and (b) (1) (Supp. 2004).
©. The Prosecution’s Third Point of Error is Moot.
‘The prosecution’s third point of error contends that
there was sufficient evidence to convict Kekuewa of the offense
of OVUIT. That point is rendered moot by our discussion supra.
IV. CONCLUSION
Based upon the foregoing, we hold that: (1) the
prosecution failed to offer a compelling justification to
overrule Domingues; (2) the prosecution’s oral charge
sufficiently alleged a violation of HRS §§ 2918-61(a) (1) and
() (1) (Supp. 2004); and (3) the record contains sufficient
evidence that Kekuewa committed the offense of OVUII under HRS 55
291E-61(a) (1) and (b) (1) (Supp. 2004). Therefore, we vacate
Kekuewa’s conviction of and sentence for the offense of OVUIT
under HRS $§ 291E-61(a) and (b) (2) (Supp. 2004), and (3) remand
the matter for entry of judgment of conviction of and
30
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
Tesentencing for the offense of OVUIT pursuant to HRS $$ 291E-
61(a) and (b) (1) (Supp. 2004). We further vacate the ICA's
‘August 23, 2006 judgment to the extent that it reverses Kekuewa’s
conviction of and sentence for the offense of OVUIT under HRS §5
292E-61(a) and (b) (2) (Supp. 2004).
Brian R. Vincent, Deputy
Prosecuting Attorney, for
Plaintif£-Appellee-Petitioner
on the application and
supplemental brief 2 6:
Taryn R. Tomasa, Deputy
Public Defender, for Due & anes
Defendant -Appel lant-Respondent
on the supplemental brief
31
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2f7bc9af-9637-40b9-b032-06acbae72b8b | State v. Latu | hawaii | Hawaii Supreme Court |
No, 27723
gz
IN THE SUPREME COURT OF THE STATE OF HANAT'E)
‘i 3
STATE OF HAWAT'I, - 3 =
Plaintif£-Appellee-Respondent, 7 =
= m
a °
g
KONILETT LATU,
Defendant~Appeilant-Petitioner.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04-1-0368)
R
(By: Levinson, J., for the court’)
Upon consideration of the application for a writ of
on September 28, 2007, by the defendant-
certiorari filed,
appellant-petitioner Konileti Latu, the application is hereby
rejected.
DATED: Honolulu, Hawai"i, November 5, 2007.
FOR THE COURT:
STEVEN H. LEVT
Associate Justi
Joyce K. Matsumori-Hoshijo,
for defendant-appellant-
petitioner Konileti Latu
on the application
Considered by: Moon, C.J., Levinton, Nakayama, Acobs, and Duffy, 29
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