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1c885405-9de0-45b9-89fe-16926e6d9432 | Kramer v. Ellett. | hawaii | Hawaii Supreme Court | LAW LIBRARY
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IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00"
SERENA KRAMER, Plaintiff-Appellant,
LIBBY ELLETT, ESQ., SPECIAL ADMINISTRATOR OF THE ESTATE OF
BELINDA ANNE PIPEO, ‘Deceased; STATE OF HAWAI'I, DEPARTMENT OF
TRANSPORTATION; COUNTY OF HAWAI'I, DEPARTMENT OF PUBLIC WORKS;
DOE ENTITIES 1-10, Defendants-Appellees.
No. 24890
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 97-256)
Lie
OCTOBER 19, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFIg
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OPINION OF THE COURT BY NAKAYAMA, J.
Plaintiff-appellant Sezena Kramer (hereinafter
“Kroner") appeals from the January 28, 2002 Amended Judgment of
the circuit court of the third circuit, the Honorable Riki May
Amano presiding, ruling that the applicable tort threshold
established by Hawai'i Revised Statutes (hereinafter “HRS”)
Chapter 431:10C and Hawai'i Administrative Rules (hereinafter
HAR”) § 16-23-10 was clearly and unambiguously $13,900 on
November 3, 1995, and that the amount of medical-rehabilitative
expenses proved by Kramer was $11,954.21, which fell short of the
aforementioned threshold.
Kramer argues that: (1) the trial court
on appeal,
erred by failing to include evidence of $2,530.21 in medically
necessary expenses which, when added to the $12,154.21 in
expenses stipulated to as a result of an automobile accident,
w
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would have been adequate to meet the medical-rehabilitative limit
threshold; (2) the trial court erred by failing to include the
$15,000 jury verdict for future medical expenses in its
calculation of the medical-rehabilitative limit threshold; and
(3) the trial court erred in applying a retroactive medical-
rehabilitative limit threshold requirement as a basis for
granting the defendant-appellee County of Hawai'i, Department of
Public Works’, (hereinafter “County”) Motion for Judgment as 2
Matter of Law.
Kramer’s final point of error has merit because the
insurance commissioner may not, absent express statutory
authority, amend the current threshold requirement and give it
retroactive effect so as to exclude Kramer’s tort claim. Because
the trial court’s grant of the County’s Motion for Judgment as a
Matter of Law must be vacated based on Kramer's final point of
error, it is unnecessary to address Kramer's first two points of
Accordingly, the circuit court’s January 28, 2002
Amended Judgment, and the September 13, 2001 Order Granting
Defendant County of Hawai'i, Department of Public Works’ Motion
for Judgment as a Matter of Law are vacated, and the case
remanded to the circuit court with instructions to enter judgment
in favor of Kramer based upon the jury verdict.
1. BACKGROUND
A. Statement of Facts
‘This case arises out of a motor vehicle accident that
occurred on November 23, 1995, in the County of Hawai'i. At
approximately 4:30 p.m., Kramer was driving south on Route 11
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during heavy rush hour traffic. She subsequently came to a
complete stop in the left turn lane of the intersection of Route
11 and Route 130. Because of the heavy traffic, there were two
cars in the turn lane in front of Kramer’s car, as well as two
cars behind. Both Kramer and Alvin Orita (hereinafter “Orita”),
an eyewitness driving two or three cars behind, testified that
Kramer had the green left-turn arrow when she entered the
intersection. Although Kramer admitted to seeing an oncoming car
approaching in one of the north-bound lanes of Route 11, she
testified that she expected the car to stop because she had the
green left-turn arrow. However, as Kramer entered the
intersection, her car was hit by the oncoming car, which was
driven by Belinda Anne Pippo (hereinafter “Pippo”.
bespite the fact that Kraner and Orita testified that
Kramer had the green left-turn arrow, Donnell Akana (hereinafter
vakana”), an eyewitness driving approximately two to three car
lengths behind Pippo, testified that Pippo also had 2 green
light. Dr. Robert Shanteau, an expert witness, testified that
the statements of the foregoing witnesses, in addition to his
personal review of the traffic signal and its components,
suggested that the traffic signal at the intersection of Route 11
and Route 130 malfunctioned, creating a dangerous situation
called “conflicting greens.”
As a reeult of the accident, in her Third Amended
Complaint, Kramer claimed that she suffered serious injuries,
including but not limited to the following:
blunt chest trauma with chest wall pain and difficulty breathin:
thest/rit contusion; sternal fracture; costochondral fracture ribs
S"tnrough 47 rotator cuff impingenent syndrome, ‘right shoulder;
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SLAP lesion or superior Labral tear hich will require future
arthroscopic surgery! neck and back sprain/strain; bilateral
CErpal tunnel ang paresthesia in right upper extremity; post
Eraunatic stress disorder necessitating professional medical
Creatnent, Plaintiff KRAMER farther incurred pain, suffering,
Serious emotional distress and a loss of enjoyment of Life.
Following the accident, Kramer engaged in various rehabilitative
fitness regimes to facilitate her recovery. However, although
her doctor recommended arthroscopic surgery to repair her damaged
shoulder, Kramer refused the surgery and engaged in alternative
forms of rehabilitation. Although Kramer has recovered somewhat
from the accident, she can no longer engage in many of her
previous recreational activities, including, but not limited to,
running, swimming, biking, and competing in triathlons.
Procedural History
1. The parties.
on May 22, 1997, Kramer filed her complaint, against
Pippo and Doe Entities 1-10, alleging negligence on the part of
Pippo. Kramer was subsequently informed that Pippo died on
November 2, 1996. Libby Ellett was appointed as the special
administrator of the estate of Pippo on February 9, 1998.
Accordingly, on March 5, 1998, Kramer filed = Second Anended
Complaint against Libby Ellett, (hereinafter “Ellett”) as special
administrator of the estate of Pippo, and Doe Entities 1-10.
on September 23, 1998, Kramer filed a Motion for
certification of Doe Entity Number 1 and to Amend Complaint.
Having learned that Pippo also claimed to have a green light, and
that Pippo also had credible eyewitnesses to support her claim,
Kramer became aware of the possibility of a traffic signal
malfunction. Thus, Kramer moved to identify the State of
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Hawai", Department of Transportation (hereinafter “State”), as
Doe Entity Number 1 because the State owned the intersection’ at
which the accident occurred.
on October 30, 1998, Kramer filed a Motion for
Certification of Doe Entity Number 2 and to Amend Complaint.
Having spoken with the State of Hawai'i Attorney General's
office, Kramer became aware of 2 contract between the County and
the State, under which the County is primarily responsible for
the maintenance of the traffic signal in question. Accordingly,
Kramer moved to identify the County as Doe Entity Number 2.
Kramer subsequently combined her two certification
motions into one Notion for Certification of Doe Entities 1 and 2
‘and to Amend Complaint. Kramer then withdrew her Septenber 23,
1998 Motion for Certification of Doe Entity Number 1 and to Amend
Complaint and her October 30, 1998 Motion for Certification of
Doe Entity Number 2 and to Amend Complaint. Accordingly,
Kramer's Third Amended Complaint, filed on December 9, 1998,
alleged negligence on the part of Pippo, the State, and the
county.
2, gury trial.
‘A jury trial commenced on October 23, 2000. At trial,
the parties stipulated to $11,529.16 in past medical-
rehabilitative expenses. Kramer also introduced some evidence as
to additional past medical-rehabilitative expenses.
Specifically, Kramer testified that she made payments totaling
$741.96 to 2 fitness club called “The Gym.” Furthermore, Kramer
also testified that she hired a housekeeper from approximately
the beginning of September 1997 through mid-June 1998. Kramer
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testified that she paid the housekeeper “approximately 50 to $55
every two weeks and then more during the holidays and more when
[she] moved.” Kramer then testified that when she moved “George
[came] in twice a week for about two weeks so that would be 100
to 110 for the last two weeks, and then during Passover it was
also more.” When asked how much her housekeeping expenses were
curing Passover, Kramer responded “Um, I don't recall exactly. T
would say maybe $100, $110.” Finally, Kramer also claims to have
offered evidence of charges in the amount of $284.25 from Long's
Pharmacy and $84.00 from Walgreen‘s Pharmacy. However, there is
no testimony in the record as to any specific amount, and
although Kramer offered exhibits specifying the foregoing
amounts, the trial court excluded such evidence based on a lack
of foundation.
At the close of Kramer's case, Ellett orally moved for
judgment as a matter of law on the grounds that Kramer did not
satisfy the jurisdictional tort threshold of $13,900 in medical-
rehabilitative expenses incurred, and the State and the County
both joined in the motion. The circuit court tock the motions
under advisement, and the case was allowed to go before the jury.
on November 8, 2000, the jury returned a verdict awarding Kramer
$11,529.16 in past medical-rehabilitative expenses, $15,000 in
future medical-rehabilitative expenses, $6,765 in lost wages,
$1,992 in special damages, and $50,000 in general damages. The
jury also found that Kramer, Pippo, and the State were not
negligent, and that the County was one-hundred percent negligent.
on November 14, 2000, the County filed a written Motion
for Judgment as a Matter of Law, alleging that Kramer failed to
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satisfy the jurisdictional threshold and thus could not prevent
the statutory abolition of tort liability resulting from motor
vehicle accidents. On September 13, 2001, the circuit court
filed an Order granting the County’s November 14, 2000 Motion for
Judgment as a Matter of Law. The circuit court ruled that the
applicable tort threshold, established by HRS Chapter 431:10C and
HAR § 16-23-10 was clearly $13,900 and that Kramer proved
nedical-rehabilitative expenses in the amount of $11,954.21,
which fell short of the applicable threshold. The circuit court
ruled that Kramer proved an extra $425.05 over and above the jury
verdict because, after the verdict, the County stipulated to
accumulated charges in the amount of $425.05 for Kramer's
membership at 24-Hour Fitness. The County also stipulated to
$200 of miscellaneous over-the-counter medical products, and
therefore the total stipulation before this court is $12,154.21.
on January 28, 2002, an Amended Judgment was filed in
favor of Ellett,, the State, and the County from and against any
and all claims brought by Kramer. On February 5, 2002, Kramer
filed a timely Notice of Appeal. Although Kramer appeals from
the Amended Judgment filed on January 28, 2002, Kramer only
appeals from that portion of the Amended Judgment pertaining to
the Order Granting Defendant County of Hawai'i, Department of
Public Works’ Motion for Judgment as a Matter of Law filed
November 14, 2000. Consequently, the only active defendant-
appellee is the County.
XI, STANDARDS OF REVIEW
A. Motion for Judgment as a Matter of Law.
In Nelson v. University of Hawai'i, 97 Hawai‘ 376, 392
7
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n. 14, 38 P.3d 95, 112 n, 14 (2001), this court stated that
snp en ey nnd mys et aa ae
te ctetdaatiy ithe ale heh tad eh
Bole 20 {ot weeaes oclone age efter trisi are referred to ae
judgment.” Id. (citing Carr v. Strode, 79 Hawai'i 475, 486, 904
statutory Interpretation.
ssn, rscoesron
medical expenses sufficient to satisfy the threshold, and (2) the
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trial court should also have included the jury's award of $15,000
for future medical expenses because under the plain languagé of
HRS § 431:10C~306(b) (2) (1993) such expense had “accrued.” In
the alternative, Kramer's third point of error states that even
if the trial court did not err by refusing to include the
foregoing expenses, the applicable tort threshold at the time of
the November 3, 1995, accident was $11,000. As previously
mentioned, it is unnecessary to address Kramer's first two points
of error because the present case may be resolved based solely
upon an analysis of Kramer's third point of error.
A. At the Time of the Accident, the Insurance Commissioner
Failed to Set a Medical-Rehabilitative Limit for the New
Period.
1. Each medical-rehabilitative period commences on
September 1 and terminates on August 31.
Generally, HRS § 431:10C-306 (1993) abolished tort
liability in motor vehicle accidents.’ There are, however,
several specific exceptions. HRS § 431:10C-306(b) (1)-(3). The
exception applicable in the present case states that tort
Liability is not abolished where
[injury cours to such person in a motor vehicle accident in
which the anount paid or accrued exceeds the nedical~
Tehabilitetive Linit established in section 431:10¢-208 for
expenses provided in section 431:10C-103(10) (A) and (B); provided
that the expenses paid shall be presuned to be reasonable and
necessary in establishing the medical-rehabilitative Limit
HRS § 431:10C-306(b) (2). HRS § 431:10C-308 (1993) established
' Although HRS § 431:10¢-306 was amended several tines, sge HRS §
431:100-306 (Supp. 2004), and HRS § 421:10C~208 was eventually repealed, see
1597 Maw. Sess. L- Act 262, $ 56 at SSi, the version of the statute at the
tine of the accident ie the version that governs the present case.” Thus,
Because the accident occurred on Novenber 3, 1998, the version of the statute
effect st nat tine se controlzing.
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the medical-rehabilitative limit and stated in relevant part:
a) The commissioner shall annually revise the medical—
rehabilitative limit by accumlating experience date on a yearly
Essie for all moter venicle accidents in the State resulting in
acekdental harm:
(b) For the purposes of this section, the no-fault policy
term year shall commence annually on September 1 and terminate the
Eelloving August ai for each term year, the Commissioner shall
Rake the tabulation of dats necessary for the computation of the
Redicelsrehabilitetive Limit during the period January 1 to .
peeeher SI breceaing the Sepeanber 1 start of the no-fault policy
term year!
(a) The nedical-rebabilitative Limit for the one-yeer period
commencing Seprenber 1, 1992, shail be $10,000, provided that if
Get comicsioner is unable to revise the nedicel-rehabilitetive
UIniEoulthin che one-year period, the nedical-renabilitative Limit
Zhai Continue at $10,000 for the next no-fault policy term year
Commencing September i, 1993.
RS § 431:10C-308(a) clearly made the insurance commissione:*
responsible for setting the new medical-renabilitative limit for
each no-fault policy term year. Furthermore, HRS § 431:10C-
308(b) specified that each no-fault policy term year commenced on
September 1 and terminated on August 31. Therefore, the logical
conclusion is that each medical-rehabilitative limit set by the
insurance commissioner was required to commence on Septenber 1
and terminate on August 31 as mandated by HRS § 431:10C-308(b).
To that effect, HRS § 431:10C~308(c) provided a specific
threshold, stating that the one-year medical-rehabilitative limit
was $10,000, effective September 1, 1992.
3 gag § 421:2-102(b) (1999) clarifies that the term “commissioner” in
nS § 431:106-308 refers to the insurance commissioner
> wns § 431:10C-308(c) specifically designated $10,000 as the medical~
renabilitative Limit for the no-fault policy term commencing Septenber 1,
[S02 because there was a chenge in the formula used to calculate the medica
Eenabilitetive fimits, See Conf. Comm. Rep. No. 150 on House 8. No. 3974,
House Journals Reg, Sese-, 16eh Leg. 878 (1982). 1982 was the intervening
oer inunieh the formule could not be implemented, and thus the legislature
Reclered the sedical-rensbilicative limit to be $10,000. Id.
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Consequently, it is clear that the insurance
commissioner determined the new medical-rehabilitative Limit’ and
that the no-fault policy term during which the medical-
rehabilitative limit was effective commenced on September 1 and
terminated on August 31 of the following year.
2. = n.
Perm: Aus i -
Sqmnissione: did ootsela-nev pedical-rehabilitative
‘he schedule of medical-rehabilitative limits is set
forth in HAR § 16-23-10(c) (1993). The County contends that HAR
§ 16-23-10(c) expressly states that the medical-rehabilitative
Limit is “$13,900 for accidents between Septenber 1, 1995 -
August 31, 1996," that Kramer’s accident occurred on November 3,
1995, and therefore that the applicable medical-rehabilitative
Limit is $13,900. Kramer, however, points out that the insurance
commissioner did not implement the new medical-rehabilitative
Limit until August 12, 1996.
For support, Kramer refers to an amendment to HAR § 16-
23-10, filed with the Lieutenant governor on August 2, 1996. The
amendment states that “[p]ursuant to section 431:10C-308(a), HRS,
the medical-rehabilitative limit during September 1, 1995 through
August 31, 1996, shall be $13,900.” Dep’t of Conmerce and
Consumer Affairs, Amendments to the Motor Vehicle Insurance Law
$16-23-10(c) (1996). However, the amendment was filed on August
2, 1996 and was scheduled to take effect on August 12, 1996. Id.
‘Thus it appears that the insurance commissioner failed to timely
implement a new medical-rehabilitative limit for the no-fault
policy term commencing on September 1, 1995, Accordingly, there
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was no stated medical-rehabilitative limit from September 1, 1995
through and including August 11, 1996. The insurance
commissioner later filed the new medical-rehabilitative limit and
tried to apply it to the entire period commencing from September
1, 1995 through August 31, 1996. Thus, inasmuch as the amendment
purported to apply to the approximately nine-month period prior
to its effective date, it purported to have a retroactive effect.
B. ERS § 431:10C-308 Does Not Authorize the Retroactive
Application ‘of the Medical-Rehabilitative Limit.
Kramer persuasively contends that the new medical~
rehabilitative limit cannot retroactively apply so as to preclude
her prior claim. Kramer first argues that HRS § 91-4 (1993)
states that “[eJach rule hereafter adopted, amended, or repealed
shall become effective ten days after filing with the lieutenant
governor. . . ." Furthermore, the amendment itself provides that
“ [this] amendment [] shall take effect ten days after filing with
the Office of the Lieutenant Governor.” Dep't of Conmerce and
Consumer Affairs, Amendments to the Motor Vehicle Insurance Law
16-23-10 (1996). Kramer also contends that inasmuch as the
amendnent purported to retroactively apply the new medical-
rehabilitative limit, it contradicted the plain language of HRS
ch. 431:10C. Kramer thus concludes that the new medical-
rehabilitative limit, $13,900, took effect on August 12, 1996 and
lasted for nineteen days before terminating on August 31, 1996.
Generally, the law disfavors the retroactive
application of statutes and rules. The United States Supreme
Court, in Bowen v. Georgetown University Hospital, 484 U.S. 204,
208 (1968), stated the following:
12
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Retroactivity 1s not favored in the law. Thus, congre!
ehactnents and administrative rules will not be constroe
Tetroactive effect unless their language requires thi
By the same principle, # stetutory grant of legis:
Eulemating authority will not, as a general matter,
to encompess the power to promlgete retroactive rules unless that
Power is conveyed by Congress in express terms.
See also Landaraf v. USI Film Products, 911 U.S. 244,, 272 (1994)
(zeaffirming the generally accepted principle that “congressional
enactments and administrative rules will not be construed to have
retroactive effect unless their language requires this result”);
Kaiser Aluminum & Chemical Corp. v. Boniorno, 494 U.S. 827, 851
(1990) (reaftizming the presumption against retroactivity set
forth in Bowen). furthermore, this court, in Gap v. Puna
Geothermal Venture, 106 Hawai'i 325, 333, 104 P.3d 912, 920
(2004), stated that “Hawai'i statutory and case law discourage
retroactive application of laws and rules in the absence of
Language showing that such operation was intended.” Accordingly,
in the present case, the insurance commissioner could not
retroactively apply a medical-rehabilitative limit unless “such
operation was intended.” The relevant question, then, is whethe:
an intent to permit the retroactive application of the medical-
rehabilitative limit is ascertainable from the language of the
enabling statute, HRS § 431:10C-308.
A review of the language of BRS § 431:10C-308 does not
support the retroactive application of the medical-rehabilitative
Limit. First, HRS § 431:10C-308(b) states that the insurance
commissioner “shall make the tabulation of data necessary for the
computation of the medical-rehabilitative limit during the period
January 1 to December 31 preceding the September 1 start of the
no-fault policy term year.” Id, (emphasis added). The statute’s
13
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use of the word “shall” negates any doubt as to the flexibility
of the timetable. The statute clearly mandates that the
completion of the tabulation of data for the new medical-
rehabilitative limit will be completed eight months before the
new limit is implemented. If the data must be tabulated eight
months before the new medical-rehabilitative limit is to be
implemented, it seems inconsistent that the statute would not
also contemplate the timely implementation of the new medical-
\ rehabilitative Limit.
Second, and even more conclusive, is the fact that ARS
§ 431:10¢-308(c) stated that “(t]he medical-rehabilitative Limit
for the one-year period conmencing September i, 1992, shall be
$10,000, provided that if the commissioner is unable to revise
the medical-rehabilitative limit within the one-year period, the
nedical-rehabilitative limit shall continue at $10,000 for the
next no-fault policy term year connencing September 1, 1993." As
previously mentioned, the formula for calculating the medical-
rehabilitative limit was revised, and the legislature set the
medical-rehabilitative limit at $10,000 during the intervening
year in which the new formula could not be implenented. See
supra note 3. Of particular relevance is the fact that the
legislature expressly envisioned the situation in which the
insurance commissioner would be unable to timely implement a new
nedical-rehabilitative limit. The legislature expected the
insurance commissioner to revise the medical-rehabilitative limit
during the preceding one-year no-fault policy term, and stated
that “if the commissioner is unable to revise the medical~
rehabilitative limit within the one-year period, the medical-
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rehabilitative limit shall continue at $10,000 for the next no-
fault policy term year. . . .” HRS § 431:10C-308(c). The
legislature did not give the insurance commissioner the power in
this situation to retroactively apply the medical-rehabilitative
Limit; rather the legislature expressly provided that the
preceding year’s medical-rehabilitative limit would carry over.
Thus the logical conclusion is that the legislature did not
intend the retroactive application of the medical-rehabilitative
Limit.
Furthermore, assuming that the language of HRS §
431:10C-308 is ambiguous as to whether it authorized the
retroactive application of the medical-rehabilitative limit, ve
may look to other statutes within the HRS for clarification. HRS
§ 1-16 (1993) states that “[LJaws in pari materia, or upon the
same subject matter, shall be construed with reference to each
other. What is clear in one statute may be called in aid to
explain what is doubtful in another.” In the present case, HRS §
431:10C-308 is arguably ambiguous as to whether it authorizes
retroactivity. However, the medical-rehabilitative limit is
revised by administrative rule, and the legislature has generally
prohibited retroactivity in administrative rules. HRS § 91-4(b)
clearly states that “[eJach rule hereafter adopted, amended, or
repealed shall becone effective ten days after filing with the
Lieutenant governor. ” purthermore, HRS § 91-3 (1993)
requires notice and a public hearing prior to the adoption,
anendnent, or repeal of any administrative rule. Consequently,
while not expressly prohibiting retroactivity, the legislature
has clearly emphasized prospectivity in the administrative
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rulemaking process.
‘The County attempts to escape the inevitable by
asserting that the result of the foregoing conclusion is that the
new medical-rehabilitative limit would be in effect for only
nineteen days, from August 12, 1996, through August 31, 1996.
‘The County thus contends that HAR § 16-23-10 and HRS Chapter
431:10¢ cannot be interpreted in this way because it would lead
to an absurd result. Apparently, the County’s argument is that
because any statutory intexpretetion against retroactivity would
result in a strange nineteen-day effective period, the
legislature must be deemed to have intended to authorize such
retroactive application of the medical-rehabilitative limit.
However, the fact that the medical-rehabilitative limit was
effective for only nineteen days in the present case does not
warrant the conclusion that the legislature must have intended to
authorize such retroactivity. The legislature clearly intended
that there be a medical-rehabilitative limit, and it therefore
does not logically follow that 2 subsequent attempt to implement
a prospectively revised medical-rehabilitative limit for the
remainder of the term is absurd.
C. The Applicable Medical-Rehabilitative Limit is $11,000.
Having thus established that the $13,900 medical-
rehabilitative limit wae effective from August 12, 1996 through
August 31, 1996, the final question is what medical-
rehabilitative limit applied to the period from September 1,
1995, through August 12, 1996. Kramer argues that the applicable
nedical-rehabilitative Limit was $12,000 because the medicel-
rehabilitative limit from the preceding no-fault policy term
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FOR PUBLICATION °°
continued to remain in full force and effect. Although Kramer
does not provide any support for this conclusion, we believe that
it has merit for the following reasons.
First, pursuant to the plain language of HAR § 16-23-
10(d) (1993), in effect at the time of Kramer's accident, the
nedical-rehabilitative limit for the period conmencing on
Septenber 1, 1994 and terminating on August 31, 1995 was $11,000.
Tt is therefore clear that the $11,000 medical-rehabilitative
Limit terminated on August 31, 1995 and did not continue in full
force and effect. Accordingly, there was a period of time during
which the insurance commissioner had not implemented an effective
medical-rehabilitative Limit.
HRS § 431:10C+308 does not dictate specific remedial
measures in the event that there is no effective medical-
rehabilitative limit, and therefore the statute is ambiguous es
to how to deal with the present situation. However, HRS $ 1-
15(2) (1993) states that “(u]here words of @ law are ambiguous .
_. [t]he reason and spirit of the law, and the cause which
induced the legislature to enact it, may be considered to
discover its true meaning.” According to HRS § 431:10C~102(a) (3)
(2993), one of the primary purposes of the chapter is to limit
tort liability for motor vehicle accidents. Consistent with that
purpose, HRS § 431:10C-306 abolished tort liability for motor
vehicle accidents except in certain limited situations. HRS §
431:10C-306(a)-(b). The specific exception applicable in the
present case allowed a tort claim to proceed if the injured
person's paid or accrued expenses exceeded the medical-
rehabilitative Limit. HRS § 431:10C-306(b) (2). In Light of the
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foregoing abolition of tort liability, it is clear that to permit
a period of time with no medical-rehabilitative limit would be
inconsistent with the “reason and spirit of the law.” HRS § 1-
15(2). Furthermore, as previously mentioned, there is evidence
0C-308(c) that the
legislature contemplated the situation where “the commissioner
in the plain language of HRS § 43:
[was] unable to revise the medical-rehabilitative limit within
the one-year pericd.” Rather than authorizing the commissioner
to retroactively apply the medical-rehabilitative limit, HRS §
431:10C-308(c) provided that “the medical-rehabilitative limit
shall continue . . . for the next no-fault policy term year. . .
." While the legislature was not sp
king in general terms, but
only referring to the specific no-!
ault policy term year
commencing on September 1, 1992 and terminating on August 31,
1993, it nonetheless provided some evidence of its intention in
the event that no medical-rehabilitative limit was established
for a given period of time. See supra note 3. Consequently,
considering the “reason and spirit of the law,” we conclude that
there is sufficient evidence in HRS § 431:10¢-308(c) to suggest
that the legislature would intend the medical-rehabilitative
Limit from the preceding no-fault policy term to carry over if,
as here, the commissioner was unable to revise the medical-
rehabilitative limit during the one-year period.
IV. CONCLUSION
In the present case, the parties initially stipulated
to $11,529.16 in medical-rehabilitative expenses, and the jury
returned a verdict also finding that Kramer's medical-
rehabilitative expenses, paid or accrued, were $11,529.16. The
ae
FOR PUBLICATION ***
County also stipulated to an additional $425.05, which represents
charges from 24-Hour Fitness, and $200, which represents charges
for miscellaneous over-the-counter medical products. Thus, the
parties stipulated to a total of $12,154.21, This stipulated sum
is greater than the medical-rehabilitative limit/tort threshold
in effect at the time of Kramer’s accident, on November 3, 1995.
‘Therefore, the circuit court’s Januery 28, 2002 Amended
Judgment, and the September 13, 2001 Order Granting Defendant
County of Hawai'i, Department of Public Works’ Motion for
Judgnent as a Matter of Law are vacated, and the case is remanded
to the cizcuit court with instructions to enter judgment in favor
of Kramer based upon the jury verdict.
on the briefs:
Richard Turbin, rr
fai seine Choy and
Set ptyen Firagereid
Se ene Law Offices of ae
Richer Turpin for
the plainei ff appellant
Serena Kramer Dette Caney vb
Earl 1, Anzai, Attorney a >
General, and Caron M. Inagaki yo A
and Cindy 8, Inouye, Deputy t
Attorneys Generel, for the
defendant-appeliee County of Kane over dh s
Hawai'i, Department of Public Works
as
|
40a12246-0842-4850-8093-ed73676ab93b | The Estate of Kam, Deceased | hawaii | Hawaii Supreme Court |
No. 25398
IN THE SUPREME COURT OF THE STATE OF HAWAI'I:
THE ESTATE OF
EDITH I. KAM, aka BDITH ING KAM, Deceased.
es
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(2. NO, 0-1-0281)
(by: Nakayama, J. for the court)
Petitioner/appellee Cedric C.1. Kam’s application for a
writ of certiorari filed on September 6, 2005, is hereby granted.
DATED: Honolulu, Hawai'i, September 14, 2005.
FOR THE COURT:
Pecsues Creve Qrse
Associate Justice
Edward R. Bendet
and Denis Lee
for petitioner/appellee
on the writ
|
73c898f4-8d57-47f5-9bb8-1adfb4500ec0 | Kaluau v. Kaluau | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOT FOR PUBLICATION ***
wo. 27240
IN THE SUPREME couRT oF THE stare oF mawaras| = &
LEONARD AINAHAU KALUR'U, SR., Plaintiff-appelignt =
> oF
ws. z €
3
EDITH KALETALOMAOKAHAKU KRLUA'U, Defendant-Appiél lee
APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT
(FC=D NO. 02-21-0241)
ORDER DISMISSING APPEAL
(py: Nakayama, J., for the court")
Upon review of the record, it appears that this court
informed Appellant by letter dated September 2, 2005 that the
time for filing the opening brief expired on August 24, 2005 and
that, pursuant to Rule 30 of the Hawai'i Rules of Appellate
the matter would be called to the attention of the
Procedure,
court for such action as the court deemed proper including
dismissal of the appeal. Appellant having failed to respond to
said letter or to otherwise oppose dismissal,
IT IS HEREBY ORDERED that the appeal is dismissed.
December 8, 2005.
FOR THE COURT:
Beta Oca iey|
Associate Justice
DATED: Honolulu, Hawai'i,
considered by: Moon, C.J. Levinson, Nakayama, Acoba, and Duffy, 22.
|
cca9560a-c76e-4437-bdd9-1a5ef2d8b31e | Kaneshiro v. Rapozo | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26518 8
IN THE SUPREME COURT OF THE STATE OF HAWA: 2 2
— a &
& 2
=
é
GARY KANESHTRO,
Plaintiff-Appellee-Respondent,,
ELIZABETH RAPOZO, Successor Trustee under the unrecorded Ernest
Texeira Revocable Living Trust Agreement dated July 22, 1987,
Defendant and Third-Party Plaintiff-Appellant-Petitioner, and’
JOHN DOES 1-50, DOE ENTITIES 1-50, Defendants,
SCOTT NASANAO SAKATA, Third-Party Defendant-Appellee-Respondent
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIVIL NO.00-1-196K)
ORDER DENYING APPLICATION FOR WRIT OF CERTIORARI
Levinson, J., for the court*)
(By:
Upon consideration of the application for a writ of
certiorari filed on October 12, 2005, by the defendant and third-
party plaintiff-appellant-petitioner Elizabeth Rapozo, the sane
is hereby denied.
DATED: Honolulu, Hawai'i, October 24, 2008.
FOR THE COUR!
LEBEL nam
Christopher J. Roehrig,
‘of Roehrig, Roehrig & Wilson,
for defendant and third-party
plaintiff-appellant-petitioner
Elizabeth Rapoza on the writ
Noon, C.J, Levinson, Nakayama, Acoba, and Duffy J.
Considered by
|
20cdabf1-1046-4d69-8114-a674da498b3d | Nakamura v. State | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 26782
IN THE SUPREME COURT OF THE STATE OF RANAT'T
FRANCIS . NAKAMURA, JR., Petitioner-Appellant,
8
8
APPEAL FROM THE FIRST CIRCUIT COURT
(S.P.P. NO. 4-1-0012 (FCCR 93-0001)
S16
EAI
-, for the court?)
(By: Nakayama,
upon review of the record, it appears that the circuit
court's July 27, 2004 order denying appellant’s HRPP Rule 40
petition for post-conviction relief was appealable by notice of
appeal filed with the circuit court within thirty days after the
order was entered. See HAPP 40(h); HRAP 4(b) (1). Appellant's
notice of appeal was filed with the circuit court on August 30,
2004, thirty-four days after entry of the July 27, 2004 order and
was untimely. There is no evidence in the record that the notice
of appeal was tendered to prison officials for forwarding to the
court clerk on or before the thirty-day appeal deadline. our
recognized exceptions to the requirement that notices of appeal
be tinely filed do not apply in this case. Thus, we lack
jurisdiction. See Grattafiori v. State, 79 Hawai'i 10, 13, 997
P.2d 937, 940 (1995) ("[Clompliance with the requirement of the
timely filing of a notice of appeal is jurisdictional, and we
‘considered by: Moon, C.J., Levingon, Nakayama, Acoba, and Duffy, 20.
aq
‘*** NOT FOR PUBLICATION ***
must dismiss an appeal on our own motion if we lack
jurisdiction.”). Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, October 13, 2005.
FOR THE COURT:
Aa Oeeeyane
|
2335349c-ad04-4642-b486-f8f2dfff2692 | Gagarin v. State | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 26727
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
EDWARD GAGARIN, Petitioner-Appellant
WW 1 199)
STATE OF HAWAT'I, Respondent-Appellee
a
APPEAL FROM THE FIRST CIRCUIT COURT
(S.P.P. NO. 0-1-0010)
(By: Nakayama, J., for the court)
Upon review of the record, it appears that the circuit
court's June 22, 2004 order denying appellant’ s HRPP Rule 40
petition for post-conviction relief was appealable by notice of
appeal filed with the circuit court within thirty days after the
order was entered. See HRPP 40(h); MRAP 4(b) (1). Appellant's
notice of appeal was filed with the circuit court on July 27,
2004, thirty-four days after entry of the June 22, 2004 order and
was untimely. There is no evidence in the record that the notice
of appeal was tendered to prison officials for forwarding to the
court clerk on or before the thirty-day appeal deadline. our
recognized exceptions to the requirement that notices of appeal
be timely filed do not apply in this case. Thus, we lack
jurisdiction. See Grattatior v. State, 79 Hawai'i 10, 13, 897
P.2d 937, 940 (1995) ("(C)ompliance with the requirement of the
timely filing of a notice of appeal is jurisdictional, and we
‘considered by: Moon, C.J., Levinson, Hal
ames
*** NOT FOR PUBLICATION ***
must dismiss an appeal on our own motion'if we lack
jurisdiction."). Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, October 13, 2008.
FOR THE COUR!
Beceese Co unter
Associate Justice
|
03235ecc-dd1d-4815-95a8-2426c21b79d4 | State v. Kalaola | hawaii | Hawaii Supreme Court | *** NOTFOR PUBLICATION ***
No. 26687
THE SUPREME COURT OF THE STATE OF HAWAL
OF HAWAI'I, Plaintiff-Appellee,
91:8 HY {Oe 43s son
CLINT KELAT KALAOLA, Defendant -Appellant.
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. No. 98-0699)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, J3.;
‘Acoba, J., Concurring)
Defendant-appellant Clint Kelai Kalaola appeals from
the findings of facts (FOFs), conclusions of law (CoLs), and
order of the Circuit Court of the First Circuit, the Honoreble
Sandra A. Simms presiding, filed on May 26, 2004, denying
Kalacla’s Hawai'i Rules of Penal Procedure (HRPP) Rule 35 motion
to dismiss his conviction of and sentence for habitually driving
under the influence of intoxicating liguor (habitual DUI),
in violation of Hawai'i Revised statutes (HRS) § 291-4.4
(2995), and reduce the sentence (Rule 35 notion).
\ RS § 291-4.4 provided, in relevant part, that:
Mabitually driving under the influence of intoxtesting
Liquor or Gruge. (2) A pereon commits the offense of
habitually driving under the influence of intexieating
Liguor or rugs if, during 3 ten-year period the person hae
been convicted three or more tines for'a driving under the
influence offense; snd
(G) © The person operates or agsuses actual phyaical
Control of the operation of any vehscle while
Gnder the influence of sntoxicating liquor,
Yeoneinued...)
aad
*** NOTFOR PUBLICATION ***
on appeal, Kalaola contends that the circuit court
erred in denying his Rule 35 motion after he had offered evidence
that two of his four predicate DUI convictions used to support
his habitual DUI conviction were dismissed by the district court.
Specifically, Kaleola asserts that: (1) HRPP Rule 35 clearly
allows him to raise a post-judgment challenge to an illegal
sentence at any time; (2) his plea of nolo contendere, or “no
contest,” to the habitual DUI charge did not bar his right to
attack any of the predicate prior DUI convictions upon which the
habitual DUI offense was based; and (3) his post-judgment attack
on the habitual DUI conviction was permissible under state v.
‘Shimabukuro, 100 Hawai'i 324, 60 P.3d 274 (2002), and State v.
Veikoso, 102 Hawai'i 219, 74 P.3d 575 (2003).
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 by the parties, we
hold that:
*(..-eontinuea)
hneaning that the person is under the influence
OF intoxicating Liguor in an asount sufficient
to impair the persons nornal mental faculties
Gr ability to care for oneself and guard again
eaeusley;
(2) The person operates or assumes actual physical
control of the operation of any venicle with .08
of nore grans of alcohol per one hundred
liliiicere or cubic centimeters of blood or .08
Gr nore grans cf alcohol per hundred ten liters
Of breathy)
(ec) fiabitualty driving under the influence of intoxicating
Liquer or drugs is @ class ¢ felony.
(Bold emphasis in original.)
NOT FOR PUBLICATION ***
(2) the circuit court did not err in concluding that
Kalaola “has no renedy under (HRPP] Rule 35" because he failed to
file his Rule 35 motion within the ninety-day time period
mandated by HREP Rule 35° or pursuant to ERPP Rule 40.
(2) the circuit court did not err in concluding
that Kalaola “waived his right to challenge the factual basis
that he had been convicted of DUI, a violation of HRS § 291-4,
three times within ten (10) years prior to the commission of the
[habitual] offense" in view of the fact that Kalaola
unconditionally, knowingly and voluntarily pled no contest to the
habitual DUI chase. See State v. Morin, 71 Haw. 159, 162-63,
785 P.2d 1316, 1318 (1990); and
(3) the eireuit court did not err in concluding that
there was “no basis to reduce the sentence within either
> At the tine Kalaola filed hie motion, HRPP Rule 35 provided, in
relevant part, that:
a) Correction of rilega? Sentence. the court may
correct an illegsl sensence at any time and ty correce a
jentence imposed in an illega: Within the tine
provided hereia for the reauetion of sentence. A.notion
tade_by a defendant to correct an_illecal sentence more than
So dave after the sentence Le Iaposed shall -be nade porsuear
Eo-Rule 40 of tnebe rules. A motion to correct a sentence
Ehat is made within the 90 day tine period shall enpower the
© Sa such notion even though the tine hae
court to
expires
(italics in original) (Underscored emphasis added.)
> HREP Rule 40(a), se amended effective Duly 2, 2003, provides, in
‘evant part
() .. At any tine but net prior to final
Judgnent, any person may sesk relief Under the procedure set
forth in thie rule from the juognent of conviction, oni,
inter alia.) the { | ground(]
Git) that the sentence ie illegal
NOT FOR PUBLICATION ***
{Shimabukuro or Veikoso] as the procedural and factual history in
this case are distinguished from those aspects of the other two
cases" because *(nJone of [Kalaola’s] pricr DUI convictions [ ]
had been vacated at the time he pled guilty,” Veikoso, 102
Hawai'i 223, 74 P.3d at 579 (distinguishing Shimabukuro)
(emphasis added). Moreover, unlike the defendants in
Shimabukuro, 100 Hawai'i at 225-26, 60 P.3d at 275-76, and
Weikoso, 102 Hawai‘i at 221, 74 P.3¢ at 577, Kalaola’s plea was
unconditional. See Morin, 71 Haw. at 162, 785 P.2d at 1318.
‘Therefore,
IT 18 HEREBY ORDERED that the May 26, 2004 order of the
Circuit Court of the First Circuit denying Kalaola’s motion to
Gismiss the habitual DUI conviction and sentence filed pursuant
to HRPP Rule 35 is affirmed.
DATED: Honolulu, Hawas', September 30, 2005.
on the briefs Grr
Karen T. Nakagone, A irQoccue—
for the defendant appellant
Clint Kelai Kalaola
Pee ON ae ork
Ryan Yeh, ,
Deputy Prosecuting Attorney, Una «Rut h-
for the plaintiff-appellee b
State of Hawai'i
RENCH
Z concur in the result only.
Goose,
é Ss
|
eb9c45ff-67be-43fa-b96f-41bec11ece1d | State v. Yamada. Dissenting Opinion by J. Acoba [pdf]. Dissenting Opinion by J. Duffy [pdf]. | hawaii | Hawaii Supreme Court | LAW LIPRARY,
*** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATS OP HAWAT'T
STATE OF HAWAT‘T, Plaintiff-Appellant,
KALEOKALANI YAMADA, Defendant-Appellee.
No. 26506
a
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 03-31-1509)
‘oavHVH
gas
ocToBER 21, 2005
02:2 Kd 12 19080
HOON, C.J., LEVINSON, AND NAKAYAMA, Jd. 7 3
ACOBA, J., DISSENTING; DUFFY, J., DISSENTING
OPINION OF THE COURT BY MOON, c.g.
Plaintitt-appellant State of Hawai'i (hereinafter, the
prosecution] appeals from the March 15, 2004 findings of fact,
conclusions of law and order of the Circuit Court of the First
Circuit, the Honorable Michael A. Town presiding, granting a new
trial co defendant-appellee Kaleokalani Yanada, who had been
convicted of two counts of robbery in the first degree, in
violation of Hawai'i Revised Statutes (HRS) § 708-840(1) (b) (4)
and one count of assault in the first
and (ii) (Supp. 1998),
+ HRS § 708-840 provides in pertinent pare:
Robbery in the first degree. (2) X person commits the
offense of robbery in the firet degree if, in the course of
connitting theft:
(continued...)
*** FOR PUBLICATION ***
in violation of HRS § 707-710 (1993).* On appeal, the
degree,
prosecution contends that the trial court abused its discretion
in granting Yanada’s motion for new trial inasmuch as the court
based its decision on the sole ground that a juror slept through
twelve minutes of defense counsel’s one-hour long closing
argument, “without a showing of actual prejudice from the defense
or a finding of prejudice by the circuit court, and where the
record as a whole evinced no prejudice to defendant." For the
following reasons, we vacate the circuit court’s March 15, 2004
order and remand this case for sentencing.
1. BACKGROUND
on duly 9, 2003, Yamada was charged by complaint with
two counts of robbery in the first degree and one count of
jault in the first degree, Trial commenced on November 24,
2003, The sole issue contested at trial was the identity of the
perpetrator. During his opening statement, defense counsel
stated to the jury:
(continued)
(b) The pergon {8 armed with a dangerous instrument
ands
(me person us
of anyone pr
Ehat person's physical resistance or
physigal power of resistat
(i) The person threatens the i
force against the
present with intent to compel acquiescence
Eo the taking of or escaping with the
Property.
2 ues § 707-710 provides in pertinent part: “A person commits the
offense of assault in the firet degree if the person intentionally or
Wmowingly cases serious bodily injury to another person."
*** FOR PUBLICATION ***
SSS
Mistaken identity, ladies and gentlemen... . The
evidence will show that [Yamada] Se not guilty(.] itike
evidence will show that there are a lot of inaccuracies
here. There’s a lot of inconsistencies. There's reasonable
Goubt, and the State cannot prove these chargen beyond a
Feasonable doubt because [vanada] aid not do cnis.
At trial, the prosecution presented two witnesses who positively
identified Yamada in a police lineup. Yamada presented one alibi
witness who testified that she was with him at her house on the
night of the incident and that Yamada had remained with her until
the next afternoon. Additionally, Yamada’s then-enployer
testified for the defense as to Yamada’s physical appearance and
Pertinent company policies regarding physical appearance to
contradict the prosecution witnesses’ physical descriptions of
the perpetrator.
on Decenber 2, 2003, after the court read its
instructions to the jury, the parties presented closing
arguments. During defense counsel's closing argunent, the
bailiff signaled to the judge that a juror “might be sleeping.”
The judge noticed that one of the jurors’ “head was over,"
although he could not see her eyes.? At that point, the judge
interrupted defense counsel, asking, “Everybody wide awake?
Everybody awake? You can rest your eyelids, but lieten.* At
that point, the judge noticed that the foreperson either *Al,]
opened her eyes and was awake, or BI,] woke up." Despite the
interruption, defense counsel continued his argument without
repeating or requesting to repeat any portion of his argument.
* this particular juror later turned out to be the foreperson of the
jury
*** FOR PUBLICATION ***
After the prosecution's rebuttal, the court made its final charge
130 a.m. the next
to the jury with instructions to return at
morning, unless it reached a verdict that afternoon. The jury
Gid not reach a verdict and was, therefore, instructed to return
the following day.
The next morning, outside of the jury's presence,
defense counsel moved for a mistrial on the following grounds:
(2) several jurors “seemed sleepy [during defense counsel's
closing argument) and did not consider the closing argument” and
(2) the prosecution made improper statements regarding certain
evidence during its closing argument.‘ In support of Yamada’s
motion for mistrial, defense counsel recalled:
Vink {¢ was two or three jurors who seemed to be very
spy. infact, one of the Juror looked like she was
Sleeping. in fact, that juror turned out to be the
foreperson of the jury.
The prosecution similarly recounted that another juror, Joe
Gomez, appeared drowsy during closing argument:
[Prosecution] : Your honor, T did not notice (the
foreperson). However, T did notice the gentlesan right next
toher. 1 forget hie nane
‘fue COURT: Gomez.
[Prosecution [Gonez) had hie eyes closed 20 what =
id te 1 dropped -~ while T was doing ny closing argument,
he had Ais eyes closed and wasn’t locking at ne sof dropped
the pictures and made kind of a loud sound and it didn‘
appear that he was sleeping because as soon as I did that,
he locked up and, you know, it’s like he focused his
+ specifically, Yanada argued that the prosecution referred to certain
inadmissible evidence relating to Yanada’e identification; hovever, thie
je ia not before thie court on appeal
*** FOR PUBLICATION ***
a
After hearing further argument, the court rule
on the allegation there may have been a sleeping Juror, I'm
sein ea deny the mistrial now without prejudice to raise it
eiNG Sepending un the verdict, with your preference,
(Ettense) counsel. to take sone testisony from the
teeten tea if she wan asleep later agsuming today and if $0,
Galy Tene forepereon] or KE» Gomes (.)
The court also noted that, because a third juror, Thomas Saka,
emight have had his eyes closed[,] . . . I gotta talk to ‘em. We
gotta get it right.*
After the court denied Yamada’s motion, the jury
returned a unanimous verdict finding Yamada guilty as charged on
all counts. ‘The court then dismissed the jury, except for the
three jurors, who were believed to be sleeping during closing
arguments, The court then proceeded to voir dire Saka, Gomez,
and the foreperson. Of the three jurors, only Saka admitted to
sleeping during the parties’ closing arguments:”
HE court: [Saka], it's the procedure if someone ~~
Af a juror ie perceived to maybe have clor
Sine 23"Sieep Suring <= not the trial but closing, did at
Bene ES during clowing argunente when [the prosecution] oF
Tatkense counsel] were arguing the case, did you go to
sleep?
[sakal: I may have passed out @ couple of seconds,
pot 1 did notice on the Power Point, I think it vas during
ihe prosecution’® closing argument) and when T did open
{R06 Pie"Sane back up, st was Pretty mich on the sane bullet
point
‘THE COURT: What would ha
you would have gone to sleep?
geka). Maybe ten, 15 seconds. I'm not sure,
fae cour: Ten or 15 seconds? Okey «=.
Tee couRtioa)s Tf 1 understand correctiy, (Saka), this
was on my closing?
[Gera]: I'm pretty sure
[eekel clon)’ and you Yecall any similar evest when
[defense counsel] vas presenting their closing?
been the longest tine that
+ ge foreperson stated that she was not, sleeping: according to her,
she was novely Sloving her eyes aa her vay of "handling that kind of
ste wet Devcifncue getting disteactes with the repetitions.” Gones similarly
{eormed the court that he “never fell asleep.”
*** FOR PUBLICATION ***
The court
The court
[Saka]: 2 think it might have been [during defense
counsel's closing argunent] Because actually it was on this
sete was on the -- this boara that vas being shown.
Prosecution]: You're saying the waite board
underneath the clock?
{sakal: ves
THE COURT: Any questions, [defense counsel)?
[Defense counsel]: dust briefly. (Saka], do you
renenber what bullet point it was possibly, what area?
{Saka}: No, T don’t,
(Defense counsel]: Do you remenber what witness T vas
talking about or what part of the case I vas talking about?
‘saka): Not specificaliy, no.
[Betense counsel}: And you said it was just ten to 15
seconds oF 80?
{eaka}s. T think ao. t think when
on the same bullet point, yes.
[Defense counsel]: And you weren't really drifting
out in any pare or were you drifting?
(Saka): Tsay have been drifting. r/m not sure.
(Detense counsel]: You were drifting In ané out throughout
any closing?
spe tineal! 1 don't Ehink throughout the whole thing
[Defence counsel) +
you were stil
‘Throughout half of it or so?
‘than that.
‘About how mach? I'm sorry.
20 percent_at the nos
[Defense counsel) :" 20 percent at mest? Okay.
okay. And do you recall if it wae basically at th
beginning part of sy closing or the end of my closing?
(Saxal: Probably more towards the middle.
(Defense counsel]: More cowards the migdie? Okay.
‘Tank you very much.
summarized the jurors’ statements:
co me like [che foreperson], even though her eyes
ble to hear. She may have been a little
‘20 to speak, but people get drowsy. xr. Gomez
clearly was wide avake. acleep.
fo'ls seconds, but he doesn't know. Me may have miased as
uch #2 20 pecent of the defense closing.
dismissed the jurors and directed defense counsel to
file a written motion for new trial.
on December 12, 2003, Yamada filed a motion for new
trial, wherein he argued that, inter alia, juror misconduct
deprived him of a fair trial and a new trial was required “in the
interests
of justice.” On January 29, 2004, the court heard
argument on the motion.
*** FORPUBLICATION **
On March 14, 2004, the court entered an order granting
Yamada’s motion for new trial, finding and concluding as follow:
EINDINGS OF FACT
2. A complaint wae filed on July 8, 2003, charging
(vamadia] with ewo (2) counte of Robbery in the First
Degree and one (1) count of Assault in the Firat
Degree for an incident that occurred on Pebruary 1
2003. Following « jury trial, (Yamada) was convicted
45 charged of all offenses on Decenber 3, 200
2. Defendant's Motion for a New trial (hereinafter
SMotion") was f1led on December 12, 2003, within the
time period specified by Rule 33, Hawai
Donal Procedure. Inter alia, the Notion claimed chat
avnew trial should be granted because a juror fell
al Sounsel'® closing
or was ne 203) of
efende_counsel-2 closing arsunent. that was
auprcxiiately one hour long. thus the iurorwas asleep
4. The Coure had “serious discomfort’ with (the
prosecution] "a use of the bat as evidence establishing
{vamada}’s identity. (*)
ONCLUSIONS OF LAH
2. This court has jurisdiction over the Hotion pursuant
to Rule 33, ae ie was
fies within the tine period proscribed by that Rule.
2, pie Motion ie granted in the interest of justice.
AcconDINGLY I7 15 HERESY ORDERED that [Yamada'e] Motion for
@ Yew Trial be and the sane is hereby granted
(Bmphasis added) .
On April 12, 2004, the prosecution filed its timely
notice of appeal
TI. STANDARD OF REVIEW
As a general matter, the granting or denial of a
motion for new trial is within the sound discretion of the
Erial courr and will not be dieturbed absent a clear abuse
of discretion. The sane principle is applied in the context
of motion for new trial premised on Juror misconduct. The
Exial court abuses ite discretion when it clearly exceeds
Ehe bounds of reason or disregards rules or principles of
law or practice to the substantial detriment of = party,
Litigant. State v, Furstani, "76 Mawall 172, 176-79, 673
P.2g'5i, 57-58 (198a) (citations and quotations omitted) -
* see supra note 4
*** FOR PUBLICATION ***
State v. Kim, 103 Hawai'i 285, 290, 81 P.3d 1200, 1205 (2003).
IIT. DISCUSSION
on appeal, the prosecution argues that the trial court
abused its discretion by granting Yamada’s motion for new trial
based on a juror sleeping during defense counsel’s closing
argument, “without a showing of actual prejudice from the defense
or a finding of prejudice by the circuit court, and where the
record as a whole evinces no prejudice to [Yamada] .”
Specifically, the prosecution asserts that finding that a juror
was sleeping, without more, does not demonstrate prejudice and
because (1) he
that any misconduct on Saka’s part was harmli
did not sleep through any testimony, evidence, or jury
instructions and (2) the portion of the argunent allegedly missed
waa not significant. Moreover, the prosecution pointa out that,
4€ defense counsel believed Saka slept through significant
1 wae under the duty
portions of the proceedings, defense coun!
to bring the misconduct to the court’s attention at that time for
the court te correct the problem immediately.
With respect to jury misconduct, this court has note
‘the sixth amendment to the United states
conetitution|)| and article I, section 14 of the Hawai't
Constitution "] guarantee the criminally accused a fair
7 ete sixth amendment to the United states Constitution provider in
relevant part that, "[iJa all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been comiteed wis, 203,
Bawal't at 290-91 a.5, 81 P.3¢ at 1205-06 n.5,
* sarticle 2, section 14 of the Hawai'i state Constitution, provides in
relevant part that, {iJn all criminal prosecutions, the accused shall enjoy
(Continued.
*** FOR PUBLICATION ***
trial by an impartial jury. state v. Gaballe, 63 Hawai'i
40, 45, 924 Piad 534, 539 (1996) (citation omitted). If any
juror was sot impartial, a new trial mist be granved. Id.
However, not all juror misconduct necessarily dictates the
granting S¢-a-sew trial Anew trial sili not be aranted if
‘can be shows that the lury coulé not have been influenced
bythe alleaed misconduct." Furuta, 76 Havart at 160,
a7 P.2d at 59)
im, 103 Hawai'i at 290-91, 61 P.3d at 1205-06 (emphasis and
brackets added) (footnote numbers altered). Consequently,
(when the basis for the motion [for new trial) is juror
misconduct (,]
ine hath
i
Qfaizcrial, whether it does rise to that level is
Sfainarily left to che discretion of the trial court.
76 Hawai'i} at 180, 873 .24 at 59 (citing skate
VaKeliinolokai, 58 Hav. 3s6,' 359, 569 7.24 991, 935)
G77)
tt
Far reabls
toreiudice {e taised and the court must investigate the
Eotality of circumstances fo determine if the sisconduct
impacted the jury's impartiality. Buritani. 76 Wawai't at,
isi, 873 P.2d at 60 (citing Stake v, Wilisnson, 72 Haw. 97,
02, 807 Pi2d 593, 596 (1981))-. In order to overcome the
rebuttable presumption, the prosecution quat show that the
Alleged deprivation of che right to a fair trial wae
Harmless bevond a reasonable doubt. Furutani, 76 Mavai't at
isi, 873, P2d at 60 (enphasis added)
State v. Adams, 10 Haw. App. 593, 599-600, 880 P.2d 226, 231-32
(2994) (ellipses pointe and emphases added). stated differently,
this court, in State v. Pauline, 100 Hawai'i 356, 381-82, 60 P.3d
306, 331-32 (2002), noted:
‘The defendant mst first make a prisa facie shoving of a
deprivation that could substantially prejudice he or her
right to a fair trial by an impartial jury. We aleo
suggested chat defendant shoulé firet present gone anecitic.
i wing a turer
Snee the deZendeat tae satisties this barton ete poet
court then determines whether the nature of the alleged
deprivation rises to the level of being substantially
Prejudicial. If the trial court determines that the alleged
deprivation is substantially prejudicial, the trial court
"(cont inued)
the right! to @ speedy and public trial by an impartial jury of the district
wherein the crime shail have been committed... '* Kim, 103 Hawai't at 291
aie, 81 Pood at 1206 1.6.
*** FOR PUBLICATION ***
then becomes duty bound to further invastisate the totality
sf circumerances murtounding the alleced deprivation to
‘Sete: jury inpas
(Citations, brackets, and quotation marks omitted.) (Emphases
added.) Additionally, this court has stated that:
Error is not to be viewed in isolation and considered purely
in the abstract. I mst be examined in the light of the
entire proceedings and given the effect which the whole
Fecord shove it to be entitled. In that context, the real
Guestion becones() whether theze is a reasonable poasibility
that the error might Have contributed to the conviction
State v. Perez, 64 Haw. 232, 234, 638 P.2d 335, 337 (1981)
(citation omitted) .
Assuming that Saka’s sleeping constituted misconduct,
the trial court was under the duty to “determine whether the
misconduct [was] of a nature which could substantially prejudice
[vamada]‘e right to a fair trial.” Adams, 10 Haw. App. at 599,
860 P.2d at 232. The trial court did not expressly enter 2
finding of prejudice, but granted the motion for new trial von
the sole basis that a juror was asleep for about . . . twelve
(12) minutes.” Finding No, 3. Generally, courts have held that
“the mere falling asleep for a short time, by a juror, during the
argument of counsel for the defendant in a criminal cause, does
not of itself constitute a sufficient cause for a new trial.”
Whiting v, State, 516 N.F.2d 1067, 1068 (Ind. 1987) (citation
omitted); see also U.S. v. Springfield, 929 F.2d 860, 864 (9th
Cir, 1987) (finding no prejudice where a juror missed a portion
of witness testimony during a nap)
In U.S. v. Barrett, 703 F.2d 1076, ag amended, (9th
me test, noting:
Cir, 1982), the court followed the
-10-
*** FOR PUBLICATION ***
ven if the juror in the present case is found to have been
asleep during portions of the trial,
‘anew trial nay not be
Eequized if he dig not mise essential portions of che erie)
2 sider
Id. at 1083 (emphasis added); see also State v. Hampton, 549
N.W.24 756 (Wis. Ct. App. 1996); State v, wright, 453 P.2d 1
(Kan. 1969); Hasson v. Ford Motor Co., 185 Cal. Rptr. 654 (cal.
1982). Notwithstanding the trial court's failure in the instant
case to make a specific finding “that the juror misconduct could
+ substantially prejudice [Yamada’s] right to a fair and
impartial jury,” Adams, 10 Haw. App. at 600, 880 P.2d at 232, we
believe such finding was implicit in its grant of Yamada’s motion
for new trial. See Ala Moana Boat Owners’ Ass’n v, State, 50
Haw, 156, 158, 434 P.2d 516, 518, reh’a denied, 50 Haw. 181, 434
and
P.2d 516 (1967) (noting the “presumption of correctne:
regularity that attend the decision of the lower court")
(Citations onitted.), Thus, the dispositive question for us in
this appeal is whether the prosecution has overcome the
rebuttable presumption by showing that the alleged deprivation of
the right to a fair trial was harmless beyond a reasonable doubt.
We believe it ha:
Initially, as the prosecution points out, there is
nothing in the record of the instant case to suggest that Saka
slept through any of the evidence adduced at trial’ or any of the
jury instructions that were given. There is also nothing in the
+ AB this court has previously noted, “arguments of counsel are not
evidenc 85 Hawai'i 128, 144, 958 P.2d $59, 875 (1997)
(elears
coaitted):
oe
*** FOR PUBLICATION ***
record to suggest that he was unable to fully participate in jury
deliberations. At the hearing on the motion for new trial,
defense counsel argued that his client was substantially
prejudiced because Saka missed crucial argunents “focused on
reasonable doubt and the inability of the [prosecution] to prove
the charges beyond a reasonable doubt.”
During closing argument, defense counsel focused on:
(2) hie contention that the prosecution's witnesses mistakenly
identified Yamada; (2) the lack of physical evidence confirming
Yamada’s involvement; and (3) what constitutes reasonable doubt.
Ae noted aupra, the defense presented ite theories of mistaken
identity and lack of evidence during his opening statement.
Further, the defense’s theory of the case was clearly presented
to the jury during the presentation of the its two witne:
Moreover, the prosecution argues that there is nothing to suggest
that Saka did not hear the instructions given prior to the
parties’ closing arguments, which included an explanation of the
reagonable doubt standard:
What the law requires before the defendant can be found
guilty is not suspicion, not probabilities, but proof of the
Sefendant’* guilt beyond reascnabie doubt
What ig reasonable douse?” Ie is a doubt in your mind
about the defendant's guilt which arises fron the evidence
Presented or from the lack of evidence and which is based on
Pesson and comon sense, Zach of you mst decide
Individually whether there is oF is not much a doubt in your
mind after careful and inpartisi consideration of the
evidence Whaat is proof beyond a reasonable doubt?
$e, steer consideration of the evidence and the law, you
hhave a reasonable doubt of the defendant's guilt, then the
prosecution has Ror proved the defendant's guile’ beyond a
Peasonable doubt, and it ie your duty to find the defendant
not guilty.
-12-
FOR PUBLICATION ***
If, after consideration of the evidence and the law,
you do not have a reasonable doubt of the defendant's guilt,
ind Le Ts your ducy to find the defendant guiiey-
‘you ust consider only the evidence that Aas been
presented to you in this case and such inferences therefrom
‘may be justified by reason and common sense.
Even if Saka was sleeping and did not hear a portion of defense
counsel's closing arguments, he was given the correct
instruction, and we presume he followed it. See State v.
Kupihea, 80 Hawai'i 307, 317-18, 909 P.2d 1122, 1132-33 (1996).
We, therefore, believe, based on the totality of circumstances,
that the prosecution has met its burden in establishing that the
alleged deprivation of the right to a fair trial was harmless
beyond a reasonable doubt.
‘The dissent, relying on People v. Evans, 710 P.2d 1167
(Col.), reh’g denied, cert, denied, 710 P.2d 1167 (1985),
maintains that, because closing argument is “one of the most
consequential parts of the trial,* id, at 1168, juror inattention
during argument is prejudicial. In our view, the decision of the
and those of other
court in Bvang ie consistent with our ca
jurisdictions that require more than an assertion that a juror’s
inattention -- or that sleeping per ae -- constitutes prejudice,
dictating the need for a new trial, In gvang, one of the jurors
was asleep during defense counsel’s closing argument. Defense
counsel, however, was unaware of the misconduct until the trial
court initiated contenpt proceedings against the juror following
the verdict. ven after finding that the juror’s conduct was
“unsatisfactory[] and was contemptuous of the seriousness of what
<23-
*** FOR PUBLICATION ***
we are talking about here," id., the trial court denied
defendant's motion for judgnent of acquittal, or alternatively
for a new trial because it believed that the facts “dlid] not
suggest that the defendant's rights were violated.” Id.
on appeal, the Colorado Court of Appeals agreed “with
(the trial court’s] conclusion that the juror’s inattention
Guring that stage of the proceedings was not only ‘contemptuous
of the court, but contemptuous of the rights of the defendant.’”
4d. (emphasis added). Recognizing the inconsistency between the
misconduct was
trial court’s finding that the juror
“contemptuous of the rights of the defendant” and its ruling that
the defendant's rights were not violated, the appellate court
stated: Since the trial court obviously determined that the
juror’s misconduct was sufficiently grave to warrant a contempt
proceeding and imposition of a penalty, we fail to see how this
same misconduct falls short of constituting prejudice to the
defendant.” Id, (emphasis added). In other words, the appellate
court clearly recognized that the juror’s inattention was not
merely a case of sleeping per ge, but that the juror’s conduct
was 80 egregious it not only warranted a contempt proceeding, but
resulted in a finding of contempt, which the appellate court
equated with a finding of prejudice.
In the instant case, the trial court, unlike Evang,
specifically determined that its grant of a new trial was based
“sole [ly on the fact] that a juror was asleep . . . for twelve
wae
*** FOR PUBLICATION ***
minutes [of defense counsel's closing argument] ," gee Finding No.
3., and nothing more. Although we do not condone jurors sleeping
or being otherwise inattentive while court is in session, we
recognize -- as did the Supreme Court of California in Hasson vi.
Ford Motor Company, 650 P.2d 1171 (1982), that, at some point
during a trial, even the most diligent jurore may be less than
one hundred percent focused on the proceedings and may “reach the
end of [their] attention span at sone point during a trial and
allow [their] mind[s] to wander temporarily from the matter at
hand.* id, at 1190. At the outset, we emphasize that our
citation to Hasson should not be construed as indicating our
agreement with the ultimate decision to affirm the trial court’s
denial of the defendant's motion for new trial given the totality
of circumstances of the incidents of juror misconduct described
therein. As indicated, intra, we cite with approval the
principles espoused by the California Supreme Court with regard
to a jury's duty and the rebuttable presumption that arises from
any juror misconduct.
In Hagson, the court addressed a number of instances of
juror misconduct, including allegations of inattentiveness. ‘The
mieconduct involved, inter alia, five of twelve jurors reading a
novel or other extraneous materials and/or doing crossword
puzzles while witnesses and evidence were being presented. It
was alleged that such activities occurred “over approximately a
one-month period,’ ‘{ol]n many occasions,’ and ‘intermittently
-15-
*** FOR PUBLICATION ***
over a period of many days.‘* Id, at 1185. In addressing the
arguments made by the parties, the California Supreme Court
prefaced its analysis by stating:
We agree with the basic premise that 2 jury's failure to pay
ntcention to the evidence presented at trial is a form of
Misconduct which will justify the granting of a new erial if
= et Suty £0
[Iseen carefully during the presentation of evidence
trial is anong the most elenentary of = juror’s obligation.
Id. (emphasis added). The court concluded that,
by failing co fulfill their duty of attentiveness, the
Surore comitted misconduct.
‘shies snot, 7
i
‘fhe surore’inattent veness- ‘exiate if, in the
‘Of proven miaconduct, jsonably probable that
2 regule nore favorable to the complaining party would have
been achieved.
ime defendant) urges that ve should presuse
prejudice irom the fact of inattentivensss alone.” In People
i Soneveute (2977) 20 Cal. 34 150, 156, 141 Cal. Rptr. 688,
Bip pad 1050, wo stated: “Ie ie vell settled that a
euspeion of ee 2
Jd. at 1186 (emphases added) .
Although the trial court in the instant case did not
explicitly determine that the juror’s sleeping constituted
misconduct, we agree with its implicit finding that, by sleeping
for twelve minutes, the juror breached his duty of attentiveness
and that he was, therefore, guilty of juror misconduct. However,
as emphasized by the court in Haseon and as thie court has
repeatedly stated, “not all juror misconduct necessarily dictates
the granting of a new trial." Kim, 103 Hawai'i at 290-91, 61
P.3d at 1205-06 (citation omitted). As previously stated, once
the trial court determines that juror misconduct could
-16-
*** FOR PUBLICATION ***
substantially prejudice the defendant’s right to a fair and
impartial jury, -- which we believe was implicit in the trial
court’ granting of a new trial, -- a rebuttable presumption is
raised, and the prosecution mst then show that the alleged
deprivation of the right to a fair trial was harmless beyond a
reasonable doubt. And, as previously discussed, we agree with
the prosecution that, based on the totality of circunstances, the
juror misconduct in this case was harmless beyond a reasonable
doubt.
Finally, we emphasize, as the court did in Hasson,
chat:
Retrials are to be avoided unless necessitated by a more
substantial dereliction of jurora’ duties than wan evident.
in this case. ["] “Society has a manifest interest in
avoiding needless retriais: they cause hardship to the
Litigants, delay the adsinietration of Justice, ang result
in social and economie waste.”
Ad. at 1190 (citation omitted). We believe that the requirements
set forth in our case law and as discussed herein provide the
fate that we do not concur with the Hasson court's
‘conduct in that case. In fact, it would appear that,
the dissent’s view would have been more appropriate
This misconduct was pervasive, involving five of the twelve
jurors including the “forewoman." It continied over an
extended period of tine, variously described as
‘Tapproximately one-month period,” or over « period of
several weeks,” of on many cecasions,” or “intermitcently
Over a period of many daye." It occurred
and evidence were being presented." The misconduct was not
the monentary dozing of a single juror in an isolated
Aneident. Rather, it involved almost half the Jury in
Erequent, prolonged, intentional mental activity of a type
that was diverting and that required thought and
contemplation... Such activities, invmy opinion, were
wholly incompatibie with a jurors duties (1
Hasson, 650 P.2d at 1193 (Richardson, J., dissenting) (underscored exphases in
original) (boi emphasis added)
-17-
*** FOR PUBLICATION ***
assurance that the hardship and delay of a new trial are not
needlessly imposed.
Accordingly, we hold that the trial court abused its
discretion in granting a new trial
IV. CONCLUSION
Based on the foregoing, we vacate the circuit court's
March 15, 2004 order granting a new trial and renand this case
ar BE ian
Rescea Corny linen
for sentencing.
on the briefa:
James M. Anderson,
Deputy Prosecuting Attorney,
for plaintiff-appellant
Harrison L. Kiehm,
for defendant -appellee
-10-
|
ad6e4504-444f-4b6d-ad72-3c06e979b2bf | Crespin v. A&B Hawaii, Inc. | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 25465
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
JOSE M. CRESPIN, Respondent /Claimant-Appellant
vs.
ACCLAMATION INSURANCE MANAGEMENT SERVICES,
Petitioner/Insurance Adjuster-Appellee
AGB, INC.» dba HAWAIIAN COMMERCIAL AND SUGAR COMPRIY, a
Pecieloner/Exphoyer Appel ee 2
and & a a
oF
z 6
2
3
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO. AB 2001-132(M) (7-8-03222))
ORDER DISMISSING CERTIORARI PROCEEDING
Moon, C.J., Levinson,
3a.)
(By:
Nakayama, Acoba, and Duffy,
Upon further consideration of the records and files in
this case, it appearing that the writ of certiorari herein was
improvidently granted,
IT IS HEREBY ORDERED that this certiorari proceeding is
dismissed.
Hawai'i, October 3, 2005.
DATED: Honolulu, :
Doe
Bute, Brearsyare
ame NN
|
e3ed62a0-989d-4fbb-a0a5-a6b2b375910d | Liberty Mutual Fire Insurance Company v. Dennison. Dissenting Opinion by J. Acoba [pdf]. | hawaii | Hawaii Supreme Court | Law tise
*** FOR PUBLICATION ***
ee
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000 ===
SSS
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
Plaintiff-appellant,
DONALD H. DENISON and LYNN T. DENISON,
Individually and as Next Friend of TYRONE
DENNISON, a minor, Defendante-Appellees.
SS
No. 24975
Ley Jo
sel RAT a
11 400 $00
APPEAL FROM THE FIRST CIRCUIT COURT
(crv. NO. 00-21-1323)
aad
Wil LViSION
ocTosER 11, 2005
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.
ACOBA, J., DISSENTING
OPINION OF THE COURT BY MOON, C.J.
This action for declaratory relief arises out of an
automobile accident in which then-fifteen year old Tyrone
Dennison (Tyrone) suffered severe injuries, including brain
damage. The dispute on appeal centers around Tyrone’s father,
defendant-appellee Donald H. Dennison (Donald) and hie separate
claim for underinsured motorist (UIM) benefits. Briefly stated,
although Donald was not involved in the accident, he claimed
emotional distress as a result of seeing his son being attended
to by emergency medical personnel at the triage area near the
*** FOR PUBLICATION ***
accident scene and eventually taken away by the medi-vac
helicopter. Plaintiff-appellant Liberty Mutual Fire Insurance
Company [hereinafter Liberty Mutual] tendered a policy limit
payment for UIM benefits? to Donald and defendant-appellee Lynn
‘Tr. Dennison (hereinafter, collectively, the Dennisons) as next
friends of Tyrone. Donald also filed a separate claim for UM
benefits based on his emotional distress. Liberty Mutual
subsequently filed this declaratory judgment action, requesting
the Circuit Court of the First Circuit, the Honorable Richard W.
Pollack presiding, to declare that, because Donald was not
involved in nor witnessed the accident, he was not entitled to
compensation under Hawai'i Revised Statutes (HRS)
§ 431:10C-206(b) (1993)? and First Ins. Co. of Hawai'i v.
\ Ae the Eine of the accident, Tyrone’e parents were the naned
insureds under a soter vehicle insurance policy issued by Liberty Mutual that
iheluded a UI" coverage endorsement of a policy Limit of §35,000:00 per
aceldent
2 gns_g 431:10¢-306(b) (1993), which has since been anended, was in
tect at the tine of the February 21, 1987 accident and is, therefore,
Gpplicable in the instant case. See i987 Haw. Seas, 1. Act 347, 9 4
$337 uaw. Sees. L. Act 252, § 70 at S53, It provided in pertinent part
(®) Tort Liability is not abolished as to the following
persons, their personal representatives, or their legal
Guaraiane in the following circumstances:
fi) Ta) "beath occurs to such person in such a motor
vehicle accident;
(2) injuty’oceura to euch person in a motor vehicle
ing in which the azount paid cr accrued exceeds
Eke medical-rehabilicative lime established in
Section 431:10C-308 for expenses provided in section
431;10¢-203 (10(a) and. (8) ; provided that the expenses
paid shail be presumed to be reasonable and necessary
Ehlestabliening the nedical-rehsbilscative limit; oF
(3) Injury‘occure to such person ip auch an accident and
aa 2 result of such injury that the aggregate limit
Of no-fault benefite cutiined in sectin
51:200-103 (10) payable to such person are exhausted.
(continued...)
*** FOR PUBLICATION
Lawrence, 77 Hawai'i 2, 681 P.2d 489, reconsideration denied, 77
Hawai'i 373, 684 P.2d 1149 (1994) (hereinafter, Lawrence) .”
Liberty Mutual appeals from the circuit court’s:
(2) September 26, 2001 order denying its motion for summary
judgnent (hereinafter, motion or motion for sunmary judgment] ;
and (2) February 5, 2002 judgment in favor of the Dennisons,
individually and as next friends of their son, Tyrone. on
note that Lawrence concerned the then-repealed HRS chapter 294
‘“[al 1though Hawas‘s’s No-Pault Law, HRS chapter 294 (1968)
Fepeaied in 1967, it. (vas) applicable [in Laurance] because the recodified
chapter HRS chapter 431:10C, becane effective after the dave of the accident
involved in (lawrence].” Lawrence, 77 Hawai'i at 4 n.3, €81 P.2d at 91m)
(citation onitted). The precise statute at issue in Lawrence was HRS § 34-6
(G05), which provides in relevant parts
Molition of tort liability. (a) Tor: Liability of the
omer, operator, of user of an insured actor veicié, or the
Operator cr use! of an uninsured moter vehicle, oF the
ator or user of an uninaured moter vehicle’ who operate:
SFuses euch vehicle without Fesscn co believe feiee'se ae
Uningured motor vehicle, with respect to accidental harm
arising fron motor vehicle accidents occurring in chis
Accident; cr injury eccurs to such person which consists, in
whole or in part, ina significant permanent loss of use of
a part or function of the body; or injury ccoura te gush
Reisen which consicts of a permanent and sericus
Gifigurament which resulte in subjection of the injured
Person co mental or emotional suffering,
(2). injury occurs
in which the amount paid or accrued exceeds the medical
yehabilitative limit established in section 294-20(b) for
expenses provided in section 294-1(10) (a) and (B); provided
Chat the expenses paid shail be presumed to be reasonable
and necessary in establishing the medical “rehabilitative
sity or
(3) Injury occurs and as
@ result of such injury the aggregate limit of no-fault
benefits outlined in section 294-2(10) payable to such
person are exhausted
Id, at 8, 691 7.26 at 495 (cleing HRS § 294-6(a) (2885)) (emphasis in
original). However, a previously indicated, we apply che subssantively
similar HRs § 431:10c-306 (b) (1993) to the inetant cave
“ae
*** FOR PUBLICATION ***
appeal, Liberty Mutual contends that the circuit court erred in
denying ite motion and entering judgment in favor of the
Dennisons based on its conclusion that Donald was not precluded
from filing, under hie insurance policy, a separate and
independent claim for emotional distress allegedly arising from
the instant accident.‘ Liberty Mutual maintains that, because
Donald was neither involved in the car accident ‘nor witnessed the
accident, he is precluded from recovering for any emotional
distress under HRS § 431:10C-306(b) and Lawrence, 77 Hawai"i 2,
e61 P.2d 489.
As discussed more fully infra in section ITI, we vacate
the circuit court’s September 26, 2001 order and February 5, 2002
Judgment and remand this case for entry of judgment in favor of
Liberty Mutual.
+ gpeeitically, Liberty Mutual contends that the circuit court
"notion for summary judguent based on ite holding that
the Injury-producing event at the tine it occurred but arrived onto the
accident scene shorely thereateer,’ and thus, Donald ia not ‘precluded
matter of lav from asserting an itdependent claim for emotional distres:
Regarding the circuit coure’s judgment, Liberty Mutual arguen:
‘the [cirevit) court erred in entering a judgnent in favor of
the Dennisone and against Liberty Mutual following the
hon-jury trial, besed on its conclusions that:
‘3) Donald “suffered hie ‘accidental hare’ ip the
accident within the peaning Of HRS Chapter 432:10¢-308 (b)~
(emphasis in original)
5) s*divect emotional trauma’ may be inflicted where
the claimant did not witness the injury-producing event at
the tine it occurred but arrived onto rhe accident scene
shortly thereafter") and
2) sIbonald) is not precluded from aaserting a
separate [UIN] policy limit under the applicable policy for
Rie enotional distress claim.”
(omphas:
in original.)
*** FOR PUBLICATION ***
I. BACKGROUND
A. Eactual Backoround
The parties stipulated to the following statement of
facts:
2. At approximately 2:06 a.m. on Friday, February
22, 1997, (Tyrone) was a paseenger in a 1992 Toyota Corolla
@riven by nineteen year old Michael Lutz
2." {lutz) hada blood alcohol level of .08
and had lose control of the Teyota Corolla which crashed
into a utility pole on Kuloa avenue ia Kapolei.
3. Tyrone), the son of [the Densisons] , was
t1tceen youre Sid'at' che’ sine (Dos denusry 13, 1583)
Inyrone) suffered severe injuries, including
brain Sinase ‘and jaw injuries in the collision.
(Iyrone]_ was founé unconscious and in critical
condition in the back teat of the Lute vantcle,
Go” "(ine Dennigons) “were not in the Lstz car when
the collisicn occurred and they did not witness the actual
sellision
7” At about 1:30 a.m., police officer Joseph
TabareJO, one of the investigating officers, went to the
Dennison’ hone and told (tke Deanisons) that Tyrone was in an
accident and that they vere going to medevac him.
a. "At that tine, (Donald) had already heard
helicopter overhead
3. “Prior to notification by officer Tabarejo,
[Donald] was not aware that hie son had been involved or
injured in an accident.
10. Tanedi sti
bie ceraae house
a whieh us he aies
Sollision, [Donald] estimated that the distance from The
Wail behind his house to the ambulance may have been about
the length of a football fiele-
it." (Donald) looked closely at two boys who were on
gurneys.” either was his son Tyrone. Both boye were
ned £0 be wrong with then. After
he saw those two boys, [Donald] knew that the medevac
helicopter was for nis son
32. “{Donald) proceeded toward the ambulance at the
scene and looked inside
13, “Wedical technicians and a fireman were in the
ambulance intubating a patient, i.e. placing 2 mask ateached
fo a manual pump, over the patient's nose and mouth
4. The patient's face was partially covered, so
(Donaid) “could not recognize nis. on.
25. ""one of the medical technicians asked (Donald)
wwho you looking for?” "{Donald) said "my son." The
attendant said “what, che kid with the tattoo’ (oenald]
Said "yeah" and the medical technician said “that’s him
there)", referring to the individual the medical
Eechnicians were working on
*** FOR PUBLICATION
26. [tyrone] was unconscious and completely
unresponsive.
Tr. {Donald} knew that his son's condition was
serious when be ea 1 eechaiel
Turone. “He wondered how long his son haa nor been breathing
End how long his brain had been deprived of oxygen.
Ye. [Donald] asked if Tyrone was going to make it
land no one would give Aim an answer, The medical
technicians just fold (Donald) that they were going to fly
[nyrone) to Queen's Medical Center and that he should go
there.
19. The medica technicians then took Tyrone out of
tthe ambulance and wheeled him by gurney to the helicopter
hich was waiting. -[Sonsid] cowie gee bleod on is son's
20. Ae [Tyrone] was being taken to the medevac
helicopter, [Donald] told him to chang ont and "I love you"
i.’ [Donald] van back to hie Rouse and told his wife
what happened. (Donald) then broke down and cried,
‘Er [ine Dennigons] then went to the hospital and
were told that Tyrone was in critical condition. (Tyrone)
aa in a coma, which lasted approximately two months.
25. Madcer the accident, [Donald] underwent
individual and group counseling on the mainland for
paychological injuries
24. Robert C. Marvit, 1g0 reviewed medical
records and examined [Donald] ahd states in his February 20,
2001 report that wit is {his} opinion with reasonable
Probabliity that Sndeed, (Oonala had suffered a
Eigniticast, severe, sental and emotional distress of this
Gutoncbile accident and hie coming upon the scene in the
manner described.”
Der ag the time of the accident, [the Dennisons] were the
famed insureds under «motor vehicle ineurance policy issued by
Liberty Mutual, wich & polley period of January’ 10, 1997 to
Sanuary 30,1998, whieh included an (UIN coverage] endorsement.
Ze.” the insuring agreement for the Ur" endorsement
provided in pertinent part:
fhe will pay damages which an insured is
Jegally entitled to recover from the omner
or operator of an underinsured motor
veniele because of bodily injury:
TI" Sustained by an insured; and
2) Caused by an accident,
The omer's of operator's liability for
these damages must arise cut of the
Owerenip, maintenance or use of the
Snderingured motor vehicle:
We will pay under this coverage only after
the Limits of iabiiiey under any
applicable bodily injury Tiability bends
OF policies have been exhausted by payment
of Sucguents or settlenents
27, The UIM endorsenent provided that the (Ur
policy limit wae $25,000 per accident, stacked tines two
Benicle(e), oF $70,000.
Ger” Re the eine of the underlying accident, tLutz)
was insured by AIG Hawaii (“AI0"), with a bodily injury
policy limit sf 625,000 per persos.” On Auguet 30, 1999,
Rio, on benalf of [itz], tendered the sum of $50,000. One
£25,000 policy limit van paid for the injuries to’ (Tyron
“6
*** FOR PUBLICATION ***
es
A neparate policy limit of $25,000 was paid for what AIG
characterized as (Donald)’s' independent’ claims.
25. “Thereafter, Liberty Mutual tendered a UIM policy
Limit in'the amount of $70,000 to [the Deanisons), as Next
of Friend of [Tyrone]
30 te . Bo)
under Butual SE Bs
‘motional distress.
policy linit tor (Donald) -2 clains_and filed the above:
Ssptioned declaratory ludenent action Of Aerii sa seed
(rackets and underscored emphases added.) (Bold emphases in
original.)
B. Procedural Backaround
On April 24, 2000, Liberty Mutual filed a complaint for
declaratory judgment, wherein it sought “[a] declaration that
(Wonald) is not entitled to [VIM] benefits under the policy
arising out of the underlying accident [.]* on May 17, 2000, the
Dennisons filed an answer to the complaint.
On August 14, 2002, Liberty Mutual filed a motion for
sunmary judgment, acknowledging that “the crux of this case is
whether [Donald]’'s alleged emotional distress is derivative of
Tyrone’s injuries in the accident.” Liberty Mutual contended
‘Under the controlling authority of Eirat Insurance Co. of Hawaii
ve. Lawrence, 77 Hawai'i 2, 881 P.2d 489 (1994), (Donald) ‘s
alleged enotional distress is clearly derivative of tyrone’s
injuries, and [Donald] is therefore not entitled to a separate
UIM policy limit as a matter of law.” (Bnphases in original.)
(Parenthetical notation omitted.) Liberty Mutual also asserted
that, “since it is undisputed that [Donald] was not ‘in’ the
motor vehicle accident that injured hie gon, his claim for
*** FOR PUBLICATION *
ee
[negligent infliction of emotional distress (NIED)] is derivative
and he is not entitled to a separate UIM policy limit as a matter
of Hawaii motor vehicle insurance law.* (Capital letters
altered.) On September 7, 2001, the Dennisons filed a memorandum
in opposition to Liberty Mutual’s motion for summary judgment,
arguing that Donald’s claim for emotional distress was not
derivative -- i.e., it was separate from and independent of
ayrone’s claim -- and that, therefore, he was not precluded from
recovering UIM benefits from Liberty Mutual.
on September 17, 2001, the circuit court held a hearing
on Liberty Mutuals motion. The court entered an order denying
Liberty Mutual’s motion for summary judgment on September 26,
2001. Therein, the court noted that, under Lawrence, “tdirect
joi cauma’ i whe laimant
witness the injury-producing event at the time it occurred but
arrived onto the accident scene shortly thereafter." (Emphasis
added.) Thus, the court denied Liberty Mutual's motion and ruled
that Donald was not precluded from asserting an independent claim
for emotional distress.
Following the denial of Liberty Mutual’s motion for
summary judgment, a bench trial commenced on November 13, 2001.
on November 26, 2001, the parties entered into the foregoing
stipulated statement of facts, The stipulated statement phrased
the issue before the circuit court as follows:
*** FOR PUBLICATION ***
Whether (Donald) ie precluded from making
claim ona separate policy limit of [UIN] ‘coverage for
hiv emotional distress allegedly suffered in the
Subject February 21, 1997 motor vehicle coliieien,
Because (Donald) was not in the motor vehicle with his
son (Tyrone] at the time of the collision snd aia not
witnest the actual collision it
Liberty mutual and (the Dennia
above captioned [alecla Giudgment
The following issues which are re
private [UIk] arbitration under the terns of the Liberty
Mutual auto policy issued to (the Dennigons) :
Li" The extent of damages, 1f any, to which (Donald)
is entities for his enotional distress claim:
2. Tesues of proximate cause.
3. Issues of Regiigence and tort Liability of the
responsible driver in thie single car accident, (Lite).
on February 5, 2002, the circuit court entered ite
judgment in favor of the Denniscne and against Liberty Mutual,
concluding that “[Donaid) is not precluded from asserting a
separate (UIM] benefits policy limit under the applicable policy
for his enotional distress claim.” Liberty Mutual filed its
timely notice of appeal on March 7, 2002.
TI, STANDARDS OF REVIEW
A. Statutory Interpretation
wthe standard of review for statutory construction is
well-established. The interpretation of a statute is a question
of law which this court reviews de nove. where the language of
the statute is plain and unambiguous, our only duty is to give
effect to ite plain and obvious meaning." Labrador v. Liberty
Mut. Group, 102 Hawai'i 206, 211, 81 P.3d 386, 392 (2003)
(citations, internal quotation marks, and brackets omitted).
B. Conclues
we review the circuit court's conclusions of law de
nove." Chock v. Gov't gmplovees Ins. Co., 103 Hawai'i 263, 265,
“3.
*** FOR PUBLICATION ***
e1 P.3d 1178, 1180 (2003) (citing Trover v, Adams, 102 Hawai'i
399, 409-10, 77 P.3d 83, 93-94 (2003)).
TIT. PESCUSSION
‘The sole issue in the instant case
cher (Donald) is precluded from making a claim on a
arate policy limit of [UIM) coverage for his enotional
Siseress allegedly suffered in the subject February 21, 1937
motor vehicle collision, because [Donald] was not in the
motor vehicle with his gon (Tyrone) at the tine of the
collision and did not witness the actual collision itselt?
As the parties suggest, ERS § 431:10C-306(b) and this court's
decision in Lawrence are dispositive of the issue before this
court
Liberty Mutual contends that, under the plain language
of HRS § 431:10C-306(b), see supra note 2, “Donald did not
sustain his alleged accidental harm ‘in’ a ‘rotor vehicle
accident’* and, thus, is precluded fron recovering UIM benefits
for his emotional distress. Liberty Mutual also argues that,
pursuant to Lawrence, ‘a claimant is required to ‘witness an
event that caused injury’ in order to assert an independent claim
for negligent infliction of emotional distress." (Brackets
omitted.) Thus, Liberty Mutual urges that, because Donald did
not witness the car accident and arrived at the “triage area”
thirty minutes after the accident occurred, Donald is precluded
from recovering UIM benefits separate and apart from Tyrone’s
claim.
In response, the Dennison assert that the circuit
court properly concluded that Donald was not precluded from
-10-
*** FOR PUBLICATION ***
covering for his emotional distress inasmuch as “Lawrence did
not establish a requirement that the actual impact must be
observed.” (Capital letters altered.) The Dennisons argue that:
All of the Sa
raised on this appeal are controlled
ee P24 .
sither che accl ereafter:
(Enphasie added.)
tion
Preliminarily, we note that the Dennisona’ ai
emphasized above is merely their interpretation of the holding in
Lawrence. No such language exists in that opinion. Moreover,
@iscussed infra, the holding in Lawrence does not allow for
independent YIM claims where the claimant did not witness the
event causing injury or death to the host plaintiff.
As this court noted in Lawrence, the state legislature
abolished tort liability for accidental harm arising from motor
vehicle accidents such that accident victims are no longer able
“to maintain a traditional negligence tort action against an
alleged wrongdoer’ except in specific circunstances as delineated
under HRS § 431:10C-306. 77 Hawai'i at 7-8, 882 P.2d at 494-95
(quoting Parker v. Nakaoka, 68 Haw. 557, 560, 722 P.2d 1028, 2030
(986). In that regard, ERE § 431:10C-306 does not abolish tort
liability where, inter alia, *[iJnjury occurs to such person in a
motor vehicle accident {.]* (Emphasis added.) As such,
-1n-
*** FOR PUBLICATION ***
Se
s{p]ureuant to the plain and unambiguous language of [HRS
§ 431:210¢-306(b)], persons . . . may assert a claim for
accidental harm[*] as long as the threshold requirements are met
-- the first being that death or injury occurs ‘to such person
a motor vehicle accident." Lawrence, 77 Hawai'i at 8, 882
P.2d at 195 (emphasis in original). Although the parties in thie
case agree that, pursuant to HRS § 431:10C-306(b), Donald may not
recover insurance benefits from Liberty Mutual unless he suffered
emotional distress ‘in’ the February 21, 1997 car accident, they
disagree as to whether Donald was *in* the accident for purposes
of HRS § 432:10C-306. Thus, the issue before this court is
whether Donald, who was not a passenger in the Lutz car, did not
witness the car accident, and arrived “down the street from the
site of the collision” approximately thirty minutes after the
accident occurred, sustained his emotional distress “in” the car
accident for purposes of HRS § 431:10C-306(b) and, therefore, may
maintain an independent claim against Liberty Mutual.
In Lawrence, 77 Hawai‘ at 4, 861 P.2d at 491, this
court addressed whether emotional distress claims brought by
family members, who were not involved in and did not witness the
car accident that killed their relative, are entitled to
independent protection under Hawaii‘s no-fault law. Tn that
case, Christopher smith, Jr. (Christopher), a pedestrian, was
‘tm bawrence, this court held that ‘the statutory definition of
accidental hara incluses emotional distress {.)" 77 Hawaii at 4, 861 P.2é at
ir
-12-
*** FOR PUBLICATION ***
OO ————
struck and killed by a car being pursued by the police
Lawxence, 77 Hawai'i at 5, 881 P.24 at 492. Christopher's
parents, wife, and children {hereinafter, collectively, the
Smiths) thereafter filed an action claiming NIED against the
ariver and the driver's parents, who were insured by First
Insurance Co. of Hawai'i (First Insurance). Id. Tt was
undisputed that “[t]he Smiths were not involved in nor did they
witness the accident." Id. Thus, First Ineurance argued that
the Smiths’ NIED claims ‘were derivative and, therefore, subject
to a single limit of liability coverage under the policy." Id.
The circuit court disagreed, ruling that *NIED is an independent
tort requiring proof based on ordinary tort principles and exists
apart from the underlying tort claimed by the host tort
plaintiff." Id. (ellipses points, brackets, and internal
quotation marks omitted) .
on appeal, this court reversed in part the circuit
court’s order, holding that, “although NIED claims are entitled
to independent protection under general Hawai'i tort law, such
derivative, [‘] subject to the exception discussed below!.]" id.
at 4, 881 P.2d at 491 (emphasis added); see alec id, at 10, 862
P.2d at 497 (noting that “derivative claims . . . arising from
bodily injuries suffered by one’s spouse in an automobile
‘this court noted that ** [dlerivative’ means ‘that which has not
ite origin in itself, but owes itu existence to something foregeing.=
Lawrence, 77 Hawai'd at 10 2.10, 862 P.24 at 496 N.10 (sone brackets omitted,
Some acsed)
-13-
*** FOR PUBLICATION ***
accident . . . are not independent to the extent that they may be
asserted without regard to the nature or extent of the injuries
to the person suffering accidental harm’ (citing Doi v. Hawaiian
Ins. & Guar. Co., 6 Haw. App. 456, 727 P.2d 884 (1986) (emphasis
omitted))). This court formated the “exception” to the general
rule after reviewing the following cases from other
jurisdictions: Employers Cas. Ins. Co. v. Foust, 105 Cal. Rptr.
505 (Cal. Ct. App. 1972) (hereinafter, Foust]; Crabtree v. state
Farm Ing. Co.,, 632 So. 24 736 (La. 1994) (hereinafter, Crabtree];
Wolfe v. State Farm Ins. Co., 540 A.2d 871, cert. denied, 546
A.2d 562 (N.J. 1988) [hereinafter, Wolfel; State Farm Mut. Auto.
Ins. Co. v. Ramsey, 368 §.B.2d 477 (S.C. Ct. App.}, aff'd, 374
8.8.24 896 (S.C. 1988) [hereinafter, Ramsey]. With respect to
Ramsey, Wolfe, and Foust, this court stated:
fe cases and find a common, factually
Qlscinguishable thread running through thes. in Zamsey, the
other wie be ettuck in an
Tutonsbile accident’ in Holt, the father pulled hie
Guughter from a car where she had been fatally exposed co
Garbon monoxide and carried her into the hone where he and
fie wite belplesely watched 2 first aid squads attempr at
fevival foil. Pinally, in Bouse, = nother witnessed che
‘itomeblie accident where her son was atruck and the father
fearned of his child's severe injuries within ten minutes of
the accident
ie have reviewed th:
ee casea, a family member sein
the accidents Here, none of the Smiths were present at the
accident scene and their basis to recover damages is upon
the enotional distress they allegedly suffered after
Christopher's death Thus, the Ssithe’ claims are
Conseguentially related to Christopher's death
Lawcence, 77 Hawai'i at 11, 681 7.24 at 498 (footnote omitted)
(emphases added). This court also discussed Crabtree v. state
Farm Ins. Co., 632 So. 24 736 (La, 1994), wherein “the wife of a
motorcycle rider . . . witnessed a vehicle strike him head-on.”
-14-
*** FOR PUBLICATION ***
77 Hawai'i at 12-13, 881 P.2d at 499-500 (emphasia
added). Relying on these cases, this court “adopt [ed] the
proposition that, if the Smiths had been witnesses to the event
that caused Christopher's death, they would have non-derivative
and wholly independent NIED clains that would trigger separate
single limits under the policy as to each proven claim." Id. at
13, 881 P.24 at 500 (some emphasis in original, some added). In
other words, the Lawrence court held that NIED claims are
derivative under Hawaii’s no-fault law unless ‘the claimant
witnessed the event causing injury or death to the host
plaintiff. On this basis alone, it appears that, because it is
undisputed that Donald *[was) not in the Lute car when the
collision occurred and . . . did not witness the actual
collision" and because Tyrone survived the car accident, Donald's
claim for enotional distress ie derivative of Tyrone’s claim for
UIM benefits.
Notwithstanding the foregoing, however, the Dennisons
point to the Lawrence court's conclusion that:
Ta) arise in the context of
= are derivative if they.
‘motor vehicle accidents ana (b) *owe their existence” to any
Sirect emotions! trsums to 2 witness oF bvetande;.as in
Hantey Wolfe, Foust, and Crabtres(.1*
Id, at 17, 681 P.2d at 504 (emphases added). Based on thie
statement, the Dennisons assert that “the dispositive question in
this appeal is therefore whether [Donald] experienced the kind of
‘direct emotional trauma’ illustrated in Ramsey, Wolfe, Foust,
-15-
*** FOR PUBLICATION ***
and Crabtree.” The Dennisons focus on Wolfe inasmuch as they
believe the claimants in that case “did not see the actual impact
or injury-producing event."” Rather, contrary to the Lawrence
court's characterization of Molfe as a case in which “a family
member directly witnessed the accident (,]" Lawrence, 77 Hawai'i
at 11, 881 P.2d at 498, the Dennigons assert that, in Wolfe,
“{w]hat her parents actually witnessed was an unsuccessful
attempt to revive her.” Thus, the Dennisons believe that the
Lawrence court did not limit recovery to only those claimants who
witnessed the injury producing event. Ne disagree.
In Wolfe,
Brenda Haines hereinafter, Brenda) died from being exposed
to carbon sonoxice while she gat in a car belonging to David
A. Phillipe. srenda’s father pulled her from ene car, and
Carried her into the house and called the local first ald
Squad. Brenda's parente and their other children watched
helplessly ae the fire: aid squad's revival attompr failed
540 A.2d at 872 (brackets added). Inasmuch as Brenda’s father
opened the car door, exposing himself to the carbon monoxide that
caused Brenda’s death, we believe her father was involved in the
circumstances of her death. In other words, in coming upon the
* We note that the Dennisons further cite to cases from other
jurisdictions that concern NIED generally =~ i.@,, not in the context of
ho-fault insurance coverage. Similarly, im Lawreice, the Siths referred to
the following cases, which did not concern automobile ingurance:
State: 52 Hav. 56, 472 P.24 509, rehva denied, 52 Haw. 156, 472 F-24509
(i570) (claim for property damage caused by surface waters overfloving a
blocked dvainage culvert), and Campbell v, Animal Quarantine Station, 63 Haw.
359, €32 F.2d 1066 (196)) (claim for emotional distress surferea wnen the
plaintiffs’ dog died in the Animal Quarantine Station), 77 Havai's at 9) 681
Bidavat 456. However, the Lawrence court stated: “the crucial distinction
Overlooked by the appellees if that the Smiths’ NIZD clains are not being
Yeviewed within a ‘pure’ tort context’. . the appellees have apparently
overlooked the fact that Rodrigues and campbell were not considered within the
Context of automobile insurance coverage.” id. at 9, 861 P-2d at 496.
Sinilarly, the casee cited by the Dennison do not céncern no-faule insurance
Coverage and are, therefore, inapposite eo the instant ca
-16-
*** FOR PUBLICATION ***
scene of Brenda’s death as he did, Brenda's father witnessed the
fatal “accident.” Thus, the Lawrence court properly
characterized Wolfe as a case in which the claimant, Brenda’s
father, witnessed the event causing her death. Furthermore, this
court noted that the Wolfe court
ied in ite reasons a aicte zen
‘Slaimanta have not witnessed the accident ceaultiog in
Spiury oF death:
While any harm to a spouse or a family member causes
Sorrow, we are here concerned with a more narrowly
Confined interest in mental and emotional stability.
hen contronted with accidental death, the reaction to
be expected of normal persons, is shock and fright
it is the sensory perception of a shocking event which
causes a separate, compensable injury. in 3 Portee
clais,*" se ie the piainesff's perception which causes
the perceiver to suffer a traumatic sense of lot
Such emotional distress ie not equivalent of grief
from losing a loved one, but is inflicted by the
trauma of seeing a loved one suffer or die or of
Hing efforts to revive her being unsuccessful
refers to Portes v. dating, 8¢ N.0. a8,
herein the court hela that enoticnal
Gistréss clains are’ not derivative, but separate snd
independent actions.
Lawrence, 77 Hawai'i at 11-12, 681 P.2d at 498-99 (quoting Wolfe,
540 A.2d at 873) “(ellipses points omitted). This court
additionally found it significant that Wolfe distinguished United
Pacific Ing, Co. v, Edsecomb, 706 P.2d 223 (Wash. 1985), wherein
a father’s claim was held to be “derivative from his son's
injuries particularly because he did not witness the accident
Ad. at 12, 881 P.2d at 499 (brackets omitted) (emphasis in
original) (quoting Molfe, 540 A.2d at 674). Consequently,
because Brenda’e father witnessed the event which caused her
death, the Wolfe court held that his claim was separate from and
independent of Brenda’s claim.
-17-
*** FOR PUBLICATION ***
Citing Wolfe, the Dennisons assert that Donald may
recover for his emotional distress inasmuch as he observed Tyrone
“suffer or die or . . . efforts to revive [him] being
unsuccessful." It is noteworthy, however, that the Lawrence
court did not expressly adopt that assertion and, moreover, even
assuming that this court agreed with Wolfe's assertion, the facts
of this case do not permit such recovery. First, inasmuch as
Tyrone survived the accident, Donald did not witness unsuccessful
revival efforts or Tyrone’s death. Second, it is undisputed that
‘Tyrone was “unconscious and completely unresponsive" when Donald
saw him and remained as such for two months after the accident.
Thus, it cannot be said that Donald observed Tyrone suffering in
pain. As euch, Donald's claim for emotional distress is
See id. at 9,
derivative of Tyrone’s claim for UIM benefits.
861 P.2d at 496 (noting that “[clonmon sense dictates that but
for Christopher's death, [the Smiths] would not have any clains
+ We agree with the diesent’s proposition that this court in Lawrence
recognized the potential for an independent claim by a family menber for
Seitnessing serious injury to's close relation... coming Gato the
fr Dissent at 3 (citation oniteed) (emphasis in
original), fod ih Crabtres ané Leteune v. Rayne Branch Heap. 586 80.
However, we do not believe Chat it applies to the facts of
the inetant case. In Crabtree, the court held that a voman’s claims for
notional distrece were independent because she was "in the accident.” 632
So. 24 at 745. There, the claimant, who was following her husband in another
vehicle, witnessed a vehicle strike him head-on, and rushed to nis side where
‘the saw bis leg nearly completely severed below the knee. Tn Lejeune, the
Court approved of a cause of action by the wife of a comatose patient who
arrived at his hospital room shortly after a rat had bitten him on the face
and before he had either been moved or bandaged. $56 So. 2d at S72. These
facts do not align thenselves with the instant cage inasmuch ss Sonalé di@ not
Stinely arrive at the immediate acene of the accident." Crabtree, €32 80. 24
at 745 nsl3. Rather, Donald learned of the accident while at home and arrived
at the “riage ares waich wae "down the street fron the site of he
collision," stipulated Statements of Pact (68?) No. 10, approximately chirty
minutes after the accident occurred and saw Tyrone uncenecioue in the
ambulance. gee SEP Nos. 1, 7, 3, and 26
2a 355 (La.
-18-
*** FOR PUBLICATION ***
of severe emotional distress to assert in the first instance” and
that, “{blecause the Smiths’ claims clearly originate[] from the
primary claim -- the death of Christopher
we conclude that
such claims are derivative.”). Therefore, we hold that the
circuit court erred in concluding that Donald was not precluded
from asserting a separate and independent UIN benefits claim for
his enotional distress.
1V. coNCLUSION
Based on the foregoing, we hold, ae a matter of law,
that Donald’s claim for enotional distress is derivative of
Tyrone‘s claim for UIM benefits. Accordingly, we vacate the
circuit court’s September 26, 2001 order denying Liberty Mutual's
motion for summary judgment and February 5, 2002 judgment in
favor of the Dennisons and renand this case with instructions for
the circuit court to enter judgment in favor of Liberty Mutual.
tends, anaoco na Tro
Ing & Kawashima), for Rete
min tae
Komeya (of Cronin, Fried, mes
Sekiya, Kekina & Fairbanks),
for defendants-appellees
-19-
|
a8884f11-1ca8-48c5-bb7d-5a519fa55ae2 | In re Estate of Kam | hawaii | Hawaii Supreme Court | 2
No. 25398 ae
IN THE SUPREME COURT OF THE STATE OF HAWAIE |
te
THE ESTATE OF
95:1 Wd 62 d3S S002
EDITH I. KAM, aka EDITH ING KAM, Deceased.
oe
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(P. NO, 00-1-0281)
ORDER GRANTING BPPLICATION FOR WRIT OF CERTIORARI
(By: Duffy, J. for the court)
Petitioner/Petitioner-Appellant Paz F. Abastillas’
application for a writ of certiorari filed on September 23, 2005,
is hereby granted.
DATED: Honolulu, Hawai'i, September 29, 2005.
FOR THE COURT:
Ban. sys for
Associate Justice
Roger Y. Dewa
for petitioner/
petitioner-appellant
Paz F, Abastillas
on the writ
oats
|
e6192ba3-d3bd-4927-a575-eb92c8eb4719 | State v. Daniels. | hawaii | Hawaii Supreme Court | LAWLIBRARY
*** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
CLIFFORD DANIELS, Defendant-Appellant.
oats
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-CR NO. 01-1-1371)
OCTOBER 21, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
endant-appellant Clifford Daniels (hereifiafter
“paniels”) appeals from the July 31, 2001 judgment of the family
court of the first circuit, the Honorable Michael D. Wilson
presiding, convicting Daniels of abuse of a family or household
member in violation of Hawai'i Revised Statutes (HRS) § 709-906
(1999), sentencing him to serve a term of 90 days’ imprisonment
and placing him on probation for two years. On appeal, Daniels
argues that: (1) the trial court erred in (a) failing to require
the prosecution to present facially non-discriminatory reasons
for its peremptory challenges and (b) denying Daniels’ motion for
a mistrial due to the discriminatory use of peremptory challenges
by the State of Hawai'i (hereinafter “the prosecution”) (a so-
HRS § 709-806 (3999) provides, in relevant part, that [i]t shall be
unlawful for say person, singly er in concert, to physically abuse @ family or
household nenber. . for the purposes of this section, ‘fenily or hovseholé
Reaber" means. . .persone jointly residing in the same unit.”
FOR PUBLICATION,
called Batson violation, per Batson v, Kentucky, 476 U.S. 79
(1986) and State v, Batson, 71 Haw. 300, 788 P.2d 841 (1990)17
(2) the trial court erred in instructing the jury to clarify its
verdict rather than acquitting Daniels when the jury returned
both “guilty” and “not guilty” verdict forms, inasmuch as Daniels
vshould have been acquitted because there was no objective
evidence as to which verdict was rendered first; and (3) double
jeopardy bars a retrial (a) due to the erroneously denied Batson
motion and (b) because the jury erroneously returned both
“guilty” and “not guilty” verdict forms. Upon review of the
record, we conclude that (1) the trial court erred in failing to
require the prosecution to present facially non-discriminatory
reasons for its peremptory challenges, and (2) reprosecuting
Daniels would not constitute double jeopardy. Accordingly, we
vacate the family court's July 31, 2001 judgment of conviction
and remand the matter for a new trial.
I. BACKGROUND
The present case arises out of a donestic dispute
between Daniels, a caucasian male, and Joyce George,
(hereinafter “complainant” or “George”) occurring between
February 28 and March 1, 2001. The incidents were reported to
the police and Daniels was arrested. The prosecution filed a
complaint charging Daniels with one count of abuse of = family or
household menber in violation of HRS § 709-906, see supra note 1.
Evidence was adduced at Daniels’ jury trial, which commenced
May 24, 2001 and concluded on May 28, 2001, providing factual
support for the charge, i.e. that George and Daniels were joint
+ FOR PUBLICATION ***
residents in the same unit and Daniels abused George.
In the course of jury selection, the prosecution
exercised its three peremptory challenges against three caucasian
mall
‘Two of the challenged jurors, John Olson and John Morgan,
were among the original twelve; the other, Arnold Schulmeister,
was drawn to replace a juror perenptorily challenged by the
defense.” All three jurors were passed for cause, and the
answers of at least two of the veniremen, Morgan and Olson,
contained nothing to suggest any prejudice or lack of
understanding of a juror's duties.‘ Daniels’ attorney made @
Batson challenge and moved for a mistrial.
[Defense counsel]: Your Honor, we'd Like to make a
Batson chellenge at this tine end nove for a mistrial. The
Prosecutor has stricken (sic) -- a1 three persons are male
anc caucasian, and Defendant 1s male and caucasian. And she
Strock tr. olson, Mr. Schuineister, ang Mr. Morgan
‘the ‘coure’’ Me: Suzuki
(Deputy Prosecuting Attorney (DPA)}: Your Honor, that
Ae not the reason way 1 struck those particular people.
‘complainant testified that Deniels kept clothes in her apartment, would
spend the night, and wae domiciled with her at the time of the incidents in
Questions “Complainant further testified that in the course of an argument on
Fobroary 22, 2003, bansele grabbed the complainant from behind, placed his
fara under her arms, then Brought his hands together behind her head, forcing
her head Gown towerds her chest (2 grappling technique knows as @ “EULl
heison"), st which point she bit hin, Daniels then pushed her against a wall
Tepestedly and struck her on both sides of ner face.” The complainant found
herself of the ground with Daniels holding her mouth and pinching her nose,
preventing her fron breathing. Daniels subsequently released her end began to
Choke ner by placing one arm around her neck and pulling that arm with Ale
‘other arm.
othe racial categorizations at issue are subjective and based on the
attorneys" impressions. Daniels’ sttorney characterized the three challenged
Surore ae caucasian and neither the court nor the prosecution offered any
Geament "on the characterization,
‘the answers of the third perenptorily challenged caucasian male, Arnold
Schuineister, arguably reflect sone degree of confusion, though not
necessarily prejudice cf lack of understanding of » juror’s duties, and not
pecessarily toa 9
Jurors not challenged
ter degree than the answers provided by other prospective
*** FOR PUBLICATION
—____* FOR PUBLICATION "97
me Court: All right. Your motion is denied. You
can return to your seat.
baniels’ attorney later revisited the Batson challenge during a
recess following jury selection:
[Defense counsel): Your Honor, as a preliminsry
matter, 1 would Iike to revisit lenge, Your
Honor, According to =~ ay unders sony f make &
prelininary showing and then the State is supposed to makt
Fes (eic) neutral statements as to why they challenged e
of the three Jurors.
‘and. ail the prosecutor indicated at cide bar wag that
that woan't the resson shy she excluded then. We don't know
sihet_ the reasons are and whether or not they are res {eic]
nevtral
‘The Court: 1 leave to the government their response
vo your motion. I have denied it
tier Susuki, if you want to supplement your record, you
nay do'so et thig time. Otherwise, we'll move along. is
There anything elee you'd like to add at this tine?
{DPA}: “No, Your Honor, except for the fact that there
a-"Pinse of ails strenuously deny that ie was based on
ioe as the reason why 1 excluded the three jurors. In
fect, ene of == 80 that's not the feason behing it. And in
fact, even the last busp for the alternete, he was Asien,
Race se not a factor, Your Nonor, There also is a caucasian
Suror who is on the -- in the Sury.[*)
The Court: Thank you. We'll move on now to the
2 motion in liminer
ste
‘The trial proceeded. At the conclusion of the trial,
the jury foreman signed both the “guilty” and “not guilty”
verdict forms and returned them to the court. The court excused
the jury, explained the situation to counsel, permitted counsel
to review the forms, and said “So, counsel, what I will do is
return these forms to the jury and instruct them to clarify what
their verdict is.” Defense counsel signified his assent to this
procedure. At the conclusion of this procedure, the jury
ch menber
returned a guilty verdict. The jury was polled and
confirmed that they agreed with the verdict.
Sthe remaining caucasian juror referred to was @ female.
FOR PUBLICATION,
FOR PUBLICATION "7
Judgment was entered on July 31, 2001. Daniels was
sentenced to serve a term of 90 days’ imprisonment and placed on
probation for two years. Notice of appeal from the judgment, as
authorized by HRS §§ 641-11 and 571-54, which allow an appeal
from the judgment in a family circuit court criminal case, was
timely filed on August 20, 2001, within the thirty-day period for
appeal prescribed by Hawai'i Rules of Appellate Procedure Rule
4b) (1).
IZ, STANDARDS OF REVIEW
In reviewing an appeal based on a criminal defendant’ s
denied Batson motion, where such motion was denied without the
trial court compelling the prosecution to proffer a non-
discriminatory explanation for the disputed peremptory challenge,
we step into the trial court’s position, review the same trial
record, and redecide the issue; because our determination of
‘whether the trial record indicates that the criminal defendant
had established 2 prima facie case of discriminatory purpose’ is
a question of law, the review is de novo. See State v. Batson,
71 Haw. 300, 301-02, 788 P.2d 841, 842 (1990)7 see also Dan v
State, 76 Hawai's 423, 427, 879 P.2d 528, $32 (1994).*
When the trial court is faced with an incomplete or
‘although federal courts have described the trial court's determination
whether the opponent of a peremptory challenge party hes made © prima facie
Cece of Giscrisinetory purpose a%, in general, 3 finding to be reviewed
Geferentialiy, ane, @1ac, Tolbert v, page, 162 F.3d 677, 681-85 (9th, Cir
$$58], the standard of feview applicable here is'the de’ nove standerd applied
in sane S. Hargen. In Etase Bataan, we disregarded the trial court's
Hodinge evamined the record, end, with particular attention to certain
Gromerated factors, nade a de novo determination with respect to whether the
Erie! seecrd indicsted that the defendant had raised an inference that the
prosecoticn’s exercise of its peremptory challenge was motivates by an
Papermissitie discriminatory purpose. 11 Maw, at 301-02, 708 P.2d at 642,
5
+** FOR PUBLICATION
ambiguous verdict and reinstructs the jury to complete the
verdict, we review the trial court’s actions for an abuse of
discretion. See State v. Maninon, 70 Haw. 175, 177, 765 P.2d
1091, 1093 (2989).
III, DISCUSSION
A. The trial court erred by failing to require the prosecution
to offer non-discriminatory explanations for its exercise of
its peremptory challenges to remove three caucasian males
from the jury.
Daniels argues that the trial court erred in denying
his motion fora mistrial due to the facially discriminatory use
of peremptory challenges by the prosecution. Daniels is correct.
our precedent demonstrates that the trial court erred in not
requiring the prosecution to offer non-discriminatory
explanations for ite exercise of its peremptory challenges.
It ig impermissible to exercise peremptory challenges
in a manner which discriminates on the basis of such categories
as race, religion, ancestry, or gender. See generally State ve
Batson, 71 Haw. 300, 788 P.2d 841 (1990); State v. Levinson, 71
Haw. 492, 795 P.2d 845 (1990). A trial court’s constitutional
review of peremptory strikes follows a three-step procedure.
First, the defendant must make out a prima facie case
by showing that the totality of the relevant facts gives rise to
an inference of discriminatory purpose. Batson v. Kentucky, 476
U.S. at 93-94, To establish the prima facie case, the defendant
must make @ showing that the challenged juror is a member of a
protected group, that the opposing party exercised a peremptory
challenge to remove the juror, and that the facts and
FOR PUBLICATION
circumstances surrounding the exercise of the peremptory
challenge raise an inference of discrimination. Cooperwood vw.
Cambra, 245 F.3d 1042, 1045-46 (9th Cir.), cert. denied, 534 U.S.
900 (2001), The rule in Hawai'i, announced in State v, Batson,
is that whenever the prosecution exercises its peremptory
challenges so as to exclude entirely from the jury all persons
who are of the same protected group’ as the defendant, and that
exclusion is challenged by the defense, there will be an
inference that the exclusion was motivated by an impermissible
discriminatory purpose," and the prosecutor must, to the
satisfaction of the court, provide a category-neutral
explanation’ for the peremptory challenges. 71 Haw. at 302-03,
788 P.2d at 842. In other words, if the effect of the
prosecution's exercise of its peremptory challenges is to exclude
from the jury all members of the same protected group as the
defendant, and the defense raises a Batson challenge, the
defendant's prima facie case is automatically established. Id.
Second, once the defendant has made out a prima facie
case, the burden shifts to the State to explain the exclusion by
offering permissible category-neutral justifications for the
strikes, Batson v, Kentucky, 476 U.S. at 94, See alse Levinson,
71 Haw. at 499, 795 P.2d at 850 ("[W]hen a prima facie case of
the use of peremptory challenges by the defense to discriminate
‘in State v. Batson, “ethnics! minority,” bot the rule in Batson hes
been expanded beyond Yace and ethnicity by subsequent controlling precedent,
‘in State v. Baten, “racially motivated.”
Yin State v. gatzon,
FOR PUBLICATION
against potential jurors because of their race, religion, sex, or
ancestry is established, it is incumbent upon the court to
require a non-discriminatory explanation of the challenge, which
satisfies it that the challenge is not based on a prohibited
discriminatory basis, before excusing the juror.”). At this
second step, a prosecutor cannot satisfy his or her burden of
production by merely denying that he/she had 2 discriminatory
“motive or by merely affirming his/her good faith. Burkett ve
Elem, 514 U.S. 765, 769 (1995). As the United States Suprene
Court explained earlier this year, “when illegitimate grounds
like race are in issue, a prosecutor simply has got to state his
reasons as best he can and stand or fall on the plausibility of
the reasons he gives.” Miller-E] v, Dretke, 545 U.S. __, 125 S.
ct. 2317, 2332 (2005). Where the prosecutor refuses to answer,
which the Court has described as “an unlikely hypothetical,”
the evidence before the Judge would consist not only of the
original facts from which the prima facie case was
Getablished, but also the prosecutor’ s refusal to justity
hie strike in light of the court's request. Such 2 refusel
would provide additional support for the inference of
OiscrEination raised by 2 defendant’ s prima facie case."
dJohnson v, California, $45 U.S. __, 125 S. Ct. 2410, 2417 2.6
(2005) (citing United States ex rel, Vaitauer v. Commissioner of
Immiaration, 273 U.S. 103, 111 (1927) (stating that “*{c]onduct
which forms a basis for inference is evidence. Silence is often
evidence of the most persuasive character.’”) (quoting United
* FOR PUBLICATION ***
States ex rel, Bilokumsky v. Tod, 263 U.S. 149, 153-54 (1923))).
Hawai'i law goes further: we have held that, where the inference
has been established, if the prosecutor refuses to offer a
category-neutral explanation for the peremptory challenge, and
the trial judge fails to compel an answer, any resulting
conviction must be vacated. State v, Batson, 71 Haw. at 302, 788
P.2d at 842.
‘Third, if a category-neutral explanation is tendered,
the trial court must then decide whether the opponent of the
strike has proved purposeful discrimination. Burkett, 514 U.S.
at 767 (citations omitted); Levinson, 71 Haw. at 499, 795 P.2d
850.
In determining whether an inference that the challenge
was motivated by an impermissible discriminatory purpose has been
raised, we consider (1) the answers given by the juror to the
questions put to him, (2) the delay in exercising the challenge,
(3) the colloquy between the court and counsel when the challenge
was exercised, (4) the refusal of the prosecutor despite the
citation to the court of [either] the United States Supreme
Court’s opinion in Batson v. Kentucky, 476 U.S. 79 (1986) [or our
opinion in State v. Batson, 71 Haw. 300, 788 P.2d 841 (1990)], to
give 2 reason for the exercise of the peremptory challenge, and
(5) whether the effect of the challenge is to exclude from the
panel menbers of [a category] that includes the opponent of the
*** FOR PUBLICATION
strike. State v, Batson, 71 Haw. at 301-02, 788 P.2d B41, 842;
see also Levinson, 71 Haw. at 499, 795 P.2d at 850. The remedy
for a Batson violation is vacatur of the judgment of conviction
and remand to the trial court for anew trial. State v, Batson,
71 Haw. at 301, 788 P.2d at 942.
In this case, the prosecution exercised its peremptory
challenges to entirely exclude caucasian males from the jury.
Daniels, 2 caucasian male, challenged the prosecution's exercise
of its peremptory challenges on the grounds that the challenged
jurors, like the defendant, were caucasian males. The
prosecution does not dispute that caucasian males constitute a
cognizable Batson group. Daniels thus satisfied all of the
conditions necessary to trigger the mandatory inference of a
discriminatory purpose pursuant to the rule announced in State v
Batson. The trial court was therefore required to compel the
“me bolded, bracketed language is net in State v. Batson, but is
either more consistent with current United States Supress Court case law (de,
the Use of "a category” rather than “black") or serves a necessary pragmatic
Purpose (dug, permitting citation to the decision in the Hawai case State va
Batson in eadition to that in the Suprese Court case Batson v. Kentucky
Mother state courts have recognized combined race-gender groups for
purposes of the Batson analysis. See, s.a., Comonwealch v. Jordan, 765
N.tv2d 366, 377-81 (Hass. 2003) (collecting cases and holding that caucssian
males ares cognizable group)? State ¥ shesherd, 989 P-2d 503, 511 n-¢ (Utah
Ct. App. 1899) (calling tril judge's assumption that caucasian males are not
a protected group "erreneous"); pacole vw. Garcia, 217 A.D.2d 113, 120 (N.Y.
app. Div. 1998), opinion after xemand, 23e A.D.cd 605 (1997), and appeal,
denied, 686 N.E.2d-229 {Nv¥. 1987] (nolding that african-anerican wonen “are
Protected from being perenpiorily challenged on 2 discriminatory basis"):
Becple ‘. Matton, 704 F.2d 176, 18i-€2 (Cal- 1965) (holding african-american
women fo bes "eognizabie group"). But see People ¥, Msshington, 626 N-E-23
381, 355-56 (r11, Ce. App. 1993), ‘Genieg, s1¢ U.S. €75 (1395) (refusing
to fecognize african-american males as a cognizable group) (relying in part on
2 series of cases subsequently overruled by J.f.8, vy Alsbans ex rel, TiS,
521'U,5. 127° (1994) (banning gender-based discriminatory challenges TT
10
'* FOR PUBLICATION.
prosecutor to provide a category-neutral explanation for the
peremptory challenges. Id. The trial court's failure to do so
was error; as in State v. Batson, the prosecution's rejection of
the chance to explain the suspect challenges necessitates a new
trial. Id, We therefore vacate the judgment of conviction and
remand the matter for a new trial. Id.
B, The trial court's procedure upon receiving inconsistent
verdict forms from the jury was not in error.
Daniels argues that the trial court erred when, upon
receiving both “guilty” and “not guilty” verdict forms from the
jury, rather than accepting the “not guilty” verdict the court
instead instructed the jury to return to the jury room and
clarify their verdict. Daniels’ argument is without merit, as
our precedent demonstrates that the trial court’s procedure was
not in error.
“as long as the jury remains under the direction of the
trial court, it is within the court's province to have them
render a correct verdict.” State vs Manipon, 70 Haw. 175, 177,
765 P.2d 1091, 1092 (1989). “The office of the juror is not
discharged until the acceptance of the verdict by the court.” Id.
at 178, 765 P.2d at 1093. See also State vs Lemalu, 72 Haw. 130,
135, 809 P.2d 442, 445 (1981). In the face of an incomplete or
ambiguous verdict, the trial court does not abuse its discretion
in instructing the jury to complete the verdict to reflect its
decision. Manivon, 70 Haw. at 177, 765 P.2d at 1093.
In this case, at the conclusion of the trial, the jury
u
FOR PUBLICATION
foreman signed both the “guilty” and “not guilty” verdict forms
and returned then to the court. The court excused the jury,
explained the situation to counsel, permitted counsel to review
the forms, and said “So, counsel, what I will do is return these
forms to the jury and instruct then to clarify what their verdict
Ss.” Defense counsel signified his assent to this procedure.
At the conclusion of this procedure, the jury returned a guilty
verdict. The jury was polled and each member confirmed that they
agreed with the verdict.
The court did not exr in finding the return of two
coextensive mutually-exclusive verdict forms to be incomplete or
ambiguous, nor vas its instruction to the jury in error. As in
Manipon, the trial court refused to accept an ambiguous verdict,
and reinstructed the jury to the satisfaction of counsel. The
jury's return of a guilty verdict, with which all twelve polled
jury members agreed, strongly suggests that even if error
occurred, there is no real possibility that such error could have
contributed to the defendant’s conviction.
C. Reprosecuting Daniels would not constitute double jeopardy.
Daniels argues that to reprosecute him would constitute
double jeopardy. This argument is wholly without merit. As the
Superior Court of Pennsylvania explains:
“since the Batson decision, hundreds of state and
federal courts have applied Batson, and, when Batson
violations have occurred after jeopardy has attached, those
Courts have remanded cases for Further evidentiary
Proceedings, reversed convictions, and remanded for new
Erials. No state or federel court has ever held that 3
Prosecutor's Batson vielation, no matter the circunst
Constitutes prosecutorial misconduct of such @ degree
2
** FOR PUBLICATION ***
implicate double jeopardy principles.”
Commonwealth v. Basemore, 875 A.2d 350, 353 & n. 7 (Pa. Sup. Ct.
2005) (discussing the interplay between discriminatory peremptory
challenges and double jeopardy, and collecting cases).
: Nor does a trial court's nonacceptance’ of the verdict
form and subsequent re-instruction to the jury violate a
defendant's protections against double jeopardy. Manipon, 70
Haw, at 177-78, 765 P.2d at 1093. As in Maninon, the trial court
refused to accept an anbiguous verdict, and reinstructed the jury
to the satisfaction of counsel. This procedure did not violate
Daniels’ protections against double jeopardy.
IV. CONCLUSION
Based on the foregoing, the family court’s July 31,
2001 judgment of conviction is vacated and the matter remanded
for a new trial.
on the vette Oro
'T. Stephen Leong :
for the defendant-appellant EH Lerman
Clifford Daniels
Mark Yuen, Deputy
Prosecuting Attorney,
for the plaintiff-appellee
State of Hawai'i
|
eeffbe54-4b1c-4bbc-8ece-bafe39245c09 | Camer v. Marks | hawaii | Hawaii Supreme Court | No. 27475
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
DOROTHY CAMER, Petitioner,
VICTORIA MARKS, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT,
Respondent,
and .
KIRK CAMERLINGO, Respondent, a
and z SoS
- e Cc
LORI KIM aka CAMERLINGO, Intervenor. zs &
ORIGINAL PROCEEDING al
(CIV. NO, 05-1-0198)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of Petitioner Dorothy Camer’s
petition for a writ of mandamus directed to Judge Victoria Marks,
Judge of the Circuit Court of the First Circuit, it appears
Petitioner fails to demonstrate that she is entitled to mandamus
relief. Therefore,
IT IS HEREBY ORDERED that the petition for writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, September 23, 2005.
Dorothy camer,
petitioner pro se
on the petition 7 .
|
61939ba8-12d5-4ecd-b84c-d13d156700c8 | State v. Gonsalves | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAI'T
~ dS S002
--— 00 —-
‘oayevs
ob 6
STATE OF HAWAI'I, Plaintiff-Appellee,
RICHARD GONSALVES, Defendant~Appel lant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO, 04-1-004)
no. 27078
SEPTEMBER 9, 2005
ORDER OF CORRECTION
(By: Levinson,
The opinion of the court, filed on September 9, 2005,
is hereby corrected as to the following:
Page 14, line 4: The sentencing beginning with “Prior
to" is to be the beginning of a new paragraph: and
Page 15, first paragraph, line 3 which reads “apply to
mandatory minimums, I believe that the circuit court in”: “I” is
to be deleted and “we” is to be inserted.
‘The Clerk of the Court is directed to incorporate the
foregoing changes in the original opinion.
DATED: Honolulu, Hawai'i, September 9, 2005.
STEVEN H. LEVINSON
Associate Justice
|
b8637c17-2ed0-4ef0-b0c1-d0a96907e763 | Shinn v. The Honorable Karen N. Blondin, Judge of the First Circuit Court of the State of Hawai'i | hawaii | Hawaii Supreme Court | LawupRary
No. 27465
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MICHAEL L. SHINN,
THE HONORABLE KAREN N. BLONDIN, JUDGE OF TH
FIRST CIRCUIT COURT OF THE STATE OF HAWAT'T
Respondent Judge, =
and
aa
BANK OF HAWAI'I,
Real Party in Interest-Respondent-Plaintif!
HWY 11 400 S02
Fi
98
and
DONALD T. EOVINO; KAHALA VENTURES, a Hawai'i general partnership;
FIRST HAWAIIAN BANK; and DONALD H. WILSON, as Trustee of the
Jerry T. Lynn Charitable Remainder Trust; BéT ENTERPRISES, a
California corporation; RICHARD WALLACE and PATRICIA DAVISON
WALLACE, as Trustees of the Muldoon & Associates Money Purchase
Plan and Trust; UNIVERSAL SECURITIES CO., LTD., a Japan
corporation: LOREN H. COOK; DARCY H. DOOK; J. ROGER ALLEN;
CATHERINE G. ALLEN; BAYS, DEAVER, HIATT, KAWACHIKA & LEZAK, a
Hawai'i partnership; JOHN DOES 1-50; JANE DOES 1-50; DOE
PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and
DOE GOVERNMENTAL UNITS 1-50, Defendants.
ORIGINAL PROCEEDING
(CIV. NO. 93-0-1151)
‘ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Michael L. Shinn’s
motion for reconsideration of this court's September 27, 2005
order denying the petition for writ of mandamus, the papers in
support, and the records and files herein,
IT 18 HEREBY ORDERED that the motion for
reconsideration is denied.
DATED: Honolulu, Hawai'i, October 11, 2005.
Gary Victor Dubin
for petitioner
fon the motion
|
b86453d1-f4ad-4003-b15d-ed51c46ce614 | State v. Kalili | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 27283 5
IW THE SUPREME COURT OF THE STATE OF HANAETIC
|
a
JAMES DAVID KALILI, JR., Defendant-Appellant.
‘OOH
STATE OF HAWAI'I, Plaintiff-Appellee,
a
APPEAL FROM THE THIRD CIRCUIT COURT
(CR. NO, 04=1-0271K)
coy: ERR or the eourt)
upon review of the record, it appears that the March
31, 2005 judgnent was appealable by notice of appeal fi1ed within
tnizty days after the judgment was entered. Sea HRAP 4(B) (1).
Appellant’s notice of appeal was filed on May 3, 2005, thizty-one
days after entry of the March 31, 2005 judgment and was untimely.
our recognized exceptions to the requirement that notices of
appeal be tinely filed to do not apply in this case. Thus, we
lack jurisdiction. See Grattafiori v. State, 79 Hawai's 10, 13,
097 P.24 937, 940 (1995) ("[Clompliance with the requirement of
the timely filing of @ notice of appeal [in a criminal matter} is
jurisdictional, and ve must dismiss an appeal on our own motion
Sf we lack jurisdiction.“); HRAP 26(b) (*{NJo court or judge oF
Justice is authorized to change the jurisdictional requirenents
[of the 30-day appeal period) contained in Rule 4 of (the
HRAP].”). Therefore,
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Oufty,
a3.
nats
'* NOT FOR PUBLICATION ***
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, September 22, 2005.
FOR THE COURT:
Praectes Corsten
Associate Justice
|
8dca644a-ed6b-425a-a975-ac97300aceae | First Hawaiian Bank v. Radomile | hawaii | Hawaii Supreme Court | LAW LIB FAs
‘+**NOT FOR PUBLICATION***
No, 25110
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
7
FIRST HAWATIAN BANK, Plaineite = BL
‘ 33.2 =
ee oS OF
MARCO A. RAOOMILE, in nis individvar Zag ye
Capscivy, oefendent-appetians BSS
and =
JAMES PARK, as Trustee of Dissolved Corporation
JAMES & CECILE, INC., Defendant-Appellee
and
COLONY SURF DEVELOPMENT CORPORATION; COLONY WEST, INC.;
CHARLES J. BARKHORN, JR., also known as CHARLES JOHN
BARKHORN, JR., JOHN BARKHORN, and CHARLES JOHN BARKHORN;
MARCO A, RADOMILE, as Trustee of the Charles J. Barkhorn III
Trust Dated August 3, 1994; MARIA JUAREZ MEDETROS; KURT
KAWAFUCHI,? in his official capacity as DIRECTOR OF TAXATION OF
THE STATE OF HAWAI'I; LIBERTY HOUSE, INC.; CHILD SUPPORT
ENFORCEMENT AGENCY, STATE OF HAWAI'I; BANK OF HAWAII; TOUCHSTONE
MANAGEMENT, INC. ; JOHN DOES 2-20; JANE DOES 1-10;
DOE PARTNERSHIPS 1-207 DOE CORPORATIONS 3-20; DOE ENTITIES
1-20; and DOE GOVERNMENTAL UNITS 1-20, Defendants
JAMES PARK, as Trustee of Dissolved Corporation,
JAMES & CECILE, INC., Cross Claimant~Appellee
MARCO A, RADOMILE, in his individual capacity,
Cross-Claim Defendant-Appellant
and
Pursuant to Hanai‘s Rules of Appellate Procedure Rule €3(c} (1),
kurt Kawatuehi, the current Director of Taxation of the State of Mawai's, ha
been substituted for Ray K. Kanikeus, the director at the time this case was
Gecided by the first circuit court
‘*sNOT FOR PUBLICATION*#*
COLONY SURF DEVELOPMENT CORPORATION, MARCO A. RADOMILE,
as Trustee of the Charles J. Barkhorn III Trust Dated’
August 3, 1994, Cross-Claim Defendants
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 95-3848)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama,
Accba, and Duffy, JJ.)
Defendant /Cross-Claim Defendant-Appellant Marco A.
Radomile (Radomile) appeals from the Septenber 10, 2002 second
amended final judgment of the cizcuit court of the first circuit?
(the court), ruling in favor of Defendant /Cross-Claimant-Appellee
James & Cecile, Inc. (JCI) and against (1) Radomile, both as
Trustee of the Charles J. Barkhorn III Trust dated August 3, 1994
and in his individual capacity, and (2) Cross-Claim Defendant
Colony Surf Development Corporation (Colony Surf) on JCI’s
fraudulent concealment cross-claim, Counts I and II. For the
reasons stated herein, the September 10, 2002 second amended
final judgment is affirmed.
On August 2, 2000, the court entered the following
relevant findings of fact and concluaions of law:
euiucs oF pact
2." nd cross-claim nerein arises out of a dispute
concerning @ commercial lease agreement for a 12,556 square
foot space thereinafter “Commercial Space") in a’ bullding
known a5 the Colony Surf East, which is located at 2885
Kalakaua Avenue in the City and County of Honolulu, state of
Hewes.
‘The Honorable Gary W.B. Chang presided.
2
‘++NOT FOR PUBLICATION*#:
@. on oF about January 1, 1994, Colony surt
Development (as the landlora} entered’ into 210 year lease
[hereinafter “Grill Lease") for the Commercial space with
Tocchstone Management, Inc. [(Touchstone) ] (as the tenant).
Seon oF about August 8, 1994, [First Hawaiian Bank
(the pank)) notifies Colony Surf Development of its position
that. [the Bank's] consent to the Grill Lease was required
lunder various mortgage agreements between [the Bank] and
Colony Surf Developsent. .
in! ‘oh or about Novenber 15, 1994, (the Bank] and
Colony Surf Development entered into a Restructuring
Agrecnent, which consolidated and restructured Colony Surf
Development's éebt
TR the Restructuring Agreement contained,
Anter alia, ‘the following provisions: (Sections 17.3,”
ty 23)
is
the sureau of Convevances of the State of Hauail
Te, Subsequent £9 the date of the Restructuring
Agreement, Jel entered into negotistions with Colony Surt
Development for JCI to lease the Conmercial Space
Thr colony. Surf Development. was represented by ite
agent, Radonile, in negotiations with JCI.
18. sci did retain attorney David Fong for the
Linited purpose of reviewing the proposed drafts of what
Ultinetely became the Space Lease, which he (attorney Fong)
dig accomplish in s coapetent manner.
{Sr Eventualay, on April 27, i995, Colony Surf
Deveiopment. (a landiced) and JcT (as tenant) entered into a
Io year lease (hereinaiter "space Lease") agreement for the
Commercial space
0. Radomile executed the Space Lease on behalf of
colony Surf Development.
‘at. ‘under the terms of the Space Lease, JCI was,
required te construct, at its sole cost and expense, all
Interior inprovements to the Comercial Space, the hard
costs for ahien wes not be less then $500,000.00.
22. 0
to the Space Lease transection.
3 7
ict was interested ina Lona term Tease for lo-veara (with
Sn option for snother consecutive 10 year term thereafter),
hot a snort term lease for no nore then 3 yearss
particularly in Light of the requirement that SCT expend not
Tens than $400, 000-00 for tenant isprovenent
2° beset te ex's execution
fe Gnace Lease transaction
25. Prior to the execution of the Space Lease,
Radomiie knew that Jci was about to enter into the Space
Lease casea upon mistekes of facts that were basic to the
transaction and that
a have axcected
‘++¢NOT FOR PUBLICATION*#*
Janse nor incurred expenses for tenant improvenents in the
Sou of sien sis gu, if Te (ict) were informed of
‘ndlsclosad facts thes were basic to the Spare Lease
‘Meansagtion’
27. Colony Surf Developeent entered into the Space
Lease with JCI without [the Benk’s) prior written consent.
26. ‘Therefore,
gag to ich
23. Kadonile's breach wes a leas] cause of danace to
ach.
30. JCI"s total special damages s2 $163,509.20.
32! there is eutticient evidence to show that Radomile
acted wantonly oF oppressively or with such malice as
Inplies « spirit of mischief cr criminal indifference to
Givil obligations by failing to disclose material
Snformation to UCT during the negotiations
‘othe who fails to aisciose to another # fact that he
knows may justifiably induce the cther to act in a business
Efansaction 15 subject to the sane Liability to the other 3s
though he had represented the nonexistence of the natter
that he has failea to disclose
5."Ser ‘ie encited co an avard of special damages
against Colony Surf Developaent, Trustee end Radonile,
{kuivigusily, joint and severally in the anount of
$163,509.20.
Frond
Clote-claim Plaintife JCT is entitled to judgeent
on the crossvclaiz in its favor and against cross-claim
Gefendants Colony Surf Developnent, Trustee and Radomile,
ndividually, joint and severally in the amount of
163,509.20
(Emphases added.)
on appeal, Radomile argues that findings nos. 15, 18,
24-26, 28-30, and 32 “are clearly erroneous and not support (ed)
by the substantial evidence elicited during the bench trial” and
that conclusions nos. 3-5 “are wrong.” Findings may be
overturned if clearly erroneous. See Bremer v, Weeks, 104
Hawai'i 43, 51, 85 P.3d 150, 258 (2004) (“[T]his court reviews
‘**NOT FOR PUBLICATION*#*
the trial court’s findings of fact under the clearly erroneous
standard.”). Conclusions of law are reviewed de novo under the
right/wrong standard. Leslie v. Estate of Tavares, 91 Hawai't
394, 399, 984 P.2d 1220, 1225 (1999).
Restatement § 551(1) applies and provides as follows:
(1) One who fails to disclose to encther 2 fact that: he
knows nay justifiably induce the other to act or refrain
from acting in a business transaction a
pene the hast ,
i he.
Regtatement (Second) of Torts § 551(1) (1977) [hereinafter
Restatement) (emphasis added). Because conclusion no. 4 is an
accurate reiteration of Restatement § 551(1), which this court
adopted in Molokoa Village Dev, Co, v. Kauai Elec, Co., 60 Haw.
562, 593 P.2d 375 (1979), Radomile’s challenge to conclusion no.
4 ds unfounded.
‘The first element for the tort of nondisclosure is the
failure to disclose. The court made this determination in
finding no. 24, Radomile challenges finding no. 24" as clearly
erroneous to the extent that “the [) Agreement, specifically, the
consent provision, was not a fact basic to the transaction.” To
the contrary, @ “basic fact” at issue was that the Lease was
+ Ragomile algo challenges the related finding no. 28 that “Radonile
breached his uty to disclose oned to Scr.” He contests this finding by
Grgeing thar “it}here ia no evidence thst demonstrated [JCr] relied on
Recomiie for information, sr that Radomile held hinself out as (JCI"a)
fiduciary.” These arguments are scdressea intra.
5
‘*sNOT FOR PUBLICATION*#*
subject to Bank consent. ‘Thus, Radomile’s contention that
finding no. 24 is clearly erroneous, then, is wrong.*
The second element of the tort inquires as to whether
Radomile knew that failure to disclose the consent requirément
vmay [have] justifiably induce[d]” JCI from refraining to act “in
2 business transaction,” or, stated in the alternative, whether
Radomile knew that failure to disclose “may [have] justifiably
induce[d]” JCI to act “in a business transaction.” Restatement
$ 551(1). Radomile maintains that finding no. 26 is clearly
erroneous “because there were no undisclosed facts that were
basic to the transaction.” But Radomile does not challenge
finding no. 23, in which the court found “Radomile knew during
the lease negotiations that JCI was interested in a long term
lease for 10 years (with an option for another consecutive 10
year term thereafter), . . . particularly in light of the
requirement that JCI expend not less than $500,000.00 for tenant
improvenents.” There was substantial evidence to support this
finding inasmuch as James Park (Park), founder of JCI, testified
that, had he known about the consent requirement, he would not
the
have entered into the Lease. Radomile’s failure to disclo
existence of the consent requirement in the Agreement may have
“helped induce” JCI to agree to lease the premises and to
$500,000 in tenant improvements resulting, subsequently, in
Based upon the sane analysis regarding finding no. 24, Radomile’
objection to. finding no. 32, that “it incorporates the prior finding that. he
Gig faill) to disclose material information to [JCI,]" must also be rejected.
6
‘+#aNOT FOR PUBLICATION®#*
a s
actual damages suffered. Thus, finding no. 26 is not clearly
erroneous. See Pancak wait, 0 .
85 Hawai's 300, 944 P.2d 97 (App. 1997) (holding that a lessor
had a duty to disclose pursuant to subsections (b) and (c) of
Restatement § 551(2))
As to finding no. 29, which states that “Radomile’s
breach was @ legal cause of damage to JCI[,]" Radomile contends
that the Lease “was extinguished not because the Bank withheld
consent, but because it was subordinated to the four recorded
mortgages encumbering the Hotel and [JCI] did not seek or obtain
2 non-disturbance agreement from the Bank.” But JCI maintains
that “[t]he lease provision that mandated JCI to make interior
improvement was the legal cause of the damages in the amount of
$163,509.20.” Park testified that he would not have entered into
the Lease, nor actually expended money on the improvements, if he
had known about the consent requirement. The court apparently
found Park’s testimony to be credible; thus finding no. 29 is
owed “due regard” and is not clearly erroneous. Lanai Co, vw.
* scr contends that “[the foreclosure action was definitely not the
cause of damages regarding the monies and costs of the interior improvenent:
Te argues that
[nlypethetically, even seeuning arguendo that JCI would have
entered into the’ 1 diese of the length of the
Tease, bas Sci known sbout the lencth of the Jesse, it could
z Sothse Te muse nak
iid: The Iease provision that mandated
Gntefior inprovenent was the legal cause of di th the
ancunt of 163,503.20. Being that 3 reasonable finder of
fect can #0 find, chere is no evidence of any error, let
alone eny clear error by the finder of fact.
o make
(Emphasis added.)
‘**4NO? FOR PUBLICATION*#*
and Use Comm'n, 105 Hawai'i 296, 307 0.23, 97 P.3d 372, 383 0.23
(2004) ("*Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge of the credibility of the witnesses./”)
(Quoting Hawas's Rules of Civil Procedure Rule 52(a).).
The final element of an action under § 551(1) is that
the defendant had a duty to exercise reasonable care to disclose.
Restatenent § 5512) refers to five modes of such a duty. This
appeal concerns the fifth mode stated in § $51(2) (e).
Restatenent § 551(2) (e) provides as follows:
(2) One party to a business transaction is under a
. To the other
Before the transaction 1s consummati
je) Zacte basic co the transaction, if he knows that
{Rtartand that the other, Seceuse of the Telationahip
between them, the customs of the trade or other objective
circumstances, would reasonably expect a dlaclogure of those
fects
(Emphases added.)
The first step, then, in determining whether Radonile
owed a duty involves identification of facts basic to the
transaction. It is undisputed that the transaction involved the
letting of 2 lease to JCI for the purpose of establishing 2
restaurant business. As a condition of the lease JCI was
required to “construct, at its sole cost and expense, all
interior improvenents to the premises], the hard costs for which
was not to be less than $500,000.00." Finding no. 21. Radomile
does not challenge finding no. 23 that JCI was interested in a
“long term lease” “in light” of the obligation to make
‘+#eNOT FOR PUBLICATION***
oy
$500,000.00 worth of improvements. He does not contest JCI’s
assertion that the “length of the lease is directly relevant to
how mich a lessee would agree to invest so as to improve (the
lessor’'s} premise(s].” He also does not challenge finding no.
22, to the effect that the term of the lease was a fact basic to
the transaction. The interrelationship of finding no. 22 and no. |
23 is that the term was related to the obligation to make
improvements of a specified amount. The ten-year term itself,
moreover, was dependent on @ basic fact that was not disclosed.
Radomile does not challenge finding no. 8, which
establishes that the commercial space was the same space
previously leased to Touchstone on or about January 1, 1994. The
necessity of the Bank's consent, then, was a fact basic to the
transaction, inasmuch as the length of the lease was tied to the
obligation to make improvements. The consent requirement was a
fact that went to the “basis, or essence, of the transaction.”
Restatement § 551 cmt. J.’ In finding no. 27, which is not
disputed, the court stated that “Colony Surf Development entered
According to the official comments to § 551(2) (e),
lal basic fact is a fact that 12 assumed by the parties as a
basis for the transaction steelf. [tig a fact thet aes 29.
Secor fhe sabes shat is bat
Egle with Ocher facts say serve a inportant ana
persuasive inducerents to enter into the transaction, but,
fot go to ste ereence. These facts may be material, but
They"are not basic. if the parties expressly of impliedly
Elace the risk as to the existence of a fact on one party or
Te the law places it there by custom or othervise the other
porty nas no duty of cisclosure
Restatement § 551 ont. 3 (emphasis added)
9
‘sor FOR PUBLICATION*#*
into the Space Lease with JCI without (the Bank's] prior written
consent" and as declared by the court in finding no. 28, that
“(t}nerefore, Radomile breached his duty to disclose{.)* Third
party consent has been detezmined a fact basic to a lease
transaction. See Apte v. Japra, 96 F.3d 1319, 1321 (9th Cir.
1996).
With regard to the second element under Restatement
§ 551(2)(e), the court found, in finding no. 25, that “Radomile
knew that JCI was about to enter into the Space Lease based upon
mistakes of facts that were basic to the transaction[.]”
(amphasis added.) Radomile posits that Bank consent was not
necessary because the Lease fell within the “ordinary course of
business” exception to consent in the mortgages. However,
Radomile knew that the Bank refused to consent to the prior
Touchstone lease of the sane commercial space for a similar ten-
year term, This was evidenced by section 17.3 of the Agreement,
to which Radomile was a signatory. Radomile also knew that under
the Agreement, the Bank would consent to a lease with a three:
year tern of the commercial space to Touchstone, but that it
would not consent to a longer term or a term that lasted beyond
October 31, 1997.
Radomile, then, had knowledge that JCI was entering the
Lease, agreeing to make improvenents, upon the mistaken belief
that it had received a ten-year term with an option to renew for
another ten years. Hence, the court's finding that Radomile knew
‘s#eNOT FOR PUBLICATION®**
eee
Park was proceeding under a mistake was supported by substantial
evidence. Thus, finding no. 25 is not clearly erroneous.
The final step in resolving the question of duty under
§ §51(2) (e) rests on whether JCI would “reasonably expect” that
Radomile would disclose an external agreement that might impact
the ten-year lease. Radomile does not address the reasonable
expectation elenent directly.* However, under the Restatement
§ 951, “ehen (the defendant] knows that the [plaintiff] is
unaware of the fact, could not easily discover it, would not
dream of entering into the bargain if he knew and is relying upon
the [defendant's] good faith and common honesty to disclose any
such fact if it is true[,]" “the plaintiff is entitled to be
compensated for the loss he has sustained.” Restatement § 551
is added) .
emt. 1 (enph
In that regard, JCI could “reasonably expect” Radomile
to disclose the existence of an agreement that might impede the
ten-year term under the Lease. First, Restatement § 551(2) (e)
does not employ the term “fiduciary.” The duty based upon a
+ Ragomite challenges finding no. 18, which states, t
that "ocr did retain sttorney Davia Fong for the limited purpos
the proposed drafts of what ultimately Secane the Space Lease, which he
(attorney Fong) did accomplish in a competent manner.” Radomile argues that
ENSese STRAY ceteneoue” because "Fong was retained for more than just
to review the Space Lease,” He cites to various testimony, including
Etatenent that Fong was hired to "conduct seme sort of due diligence.” He
alee asserts that Fong “did not discharge his duties and responsibilities in
Competent fashion.”
Rocever, Radomile does not clarity how finding no. 18 has any
bearing upon his liability for nondisclosure, Moreover, it appears that the
Court's determination ae to the scope of Fong's services and his competency
Were besed upon teetineny by Feng and fark at trial. Finding no. 18 is owed
“Sue resaré.”" Langi-co. v. Lang Use Comm'n, 105 Hawai'i 296, 307 n.23, 97
pois Sof; 983 coda (200d). in Iight of the evidence adduced, it cannot be
Seid that the finding wee “clearly exroneous-"
n
‘**4NOT FOR PUBLICATION*#*
fiduciary relationship is described in § $51(2) (a). Radomile
was, in effect, JCI’s “sole source of information regarding” the
consent requirement. While the mortgages encumbering the Hotel
referenced the Agreement and were filed with the Bureau of
Conveyances, the Agreement itself was never so filed.’ Hence,
UCI did not have “an equal opportunity,” Restatement § 551 cmt.
k, to learn about the consent requirement.
Therefore, the court correctly determined in conclusion
no. 3 that “Radomile owed JCI a duty to exercise reasonable care
to disclose to JCI, before the Space Lease was executed, all
facts that were basic to the transaction.” In not disclosing the
consent requirement, Radonile was “subject to the same liability”
to JCI as “though he had represented the nonexistence.of the
matter[.]” Restatement § 551.
Finding no. 30 states that “JCI’s total special
Gamages is $163,509.20.” Radomile requests @ remand for the
court “to explain or otherwise justify how the damages were
calculated.” In its answering brief, JCI argues that Radomile’s
“assignment of error is again defective,” and Radomile “does not
* ., Radomile asserts that finding no. 15 is clearly erroneous because
vit inplies that’ [the existence of the Agreement] was not s matter of public
record” when, instead, “the {] Agreenent was prominently referenced in each of
the four recorded sorégages.” He argues that there "should be no difference
between” “whether tne docusent was ‘filed’ at the Buresy of Conveyance and
Whether it was simply referenced in a related filed document,”
But finding no. 15 is not clearly erronesus. Radonile does not
Geny that the Agreement was not “filed.” That the document was not filed is @
factor in the determination of whether JCI "could not essily discover” the
document for ieself-
Radonile’s challenge here siso encompasses hie challenge to
conclusion no. s
12
‘+*NoT FOR PUBLICATION***
ee
even address any objections he made on the record with respect to
evidence[.]” Hawai'i Rules of Appellate Procedure (HRAP) Rule
28(b) (4) requires appellants to “show where in the record the
alleged error occurred and where it was objected to," along with
other requirements “where applicable.” Radomile argues that the
court's calculation of special damages was “unsupported by the
evidence at trial(,]”" but he does not identity the evidence that
was presented to calculate damages, nor does he explain why the
evidence was insufficient. Thus, his challenge to the amount of
special damages as determined in finding no. 30 need not be
addressed. See HRAP Rule 26(b) (4) (“Points not presented in
accordance with this section will be disregarded, except that the
court, at its option, may notice a plain error not presented”).
Moreover, the record indicates that there were approximately
sixty-five exhibits related to damages. This court need not
review each of these exhibits to decipher the ones Radomile
believes were questionable. See Lanai Co., 105 Hawai'i at 309
n.31, 97 P.3d at 385 n.31 (“This court is not obligated to sift
through the voluminous record to verify an appellant's
inadequately documented contentions.”).
Finally, Radomile argues that the court committed
reversible error when it refused to take judicial notice of
purported judicial admissions by JCI regarding the following
statements made by JCI in previously filed menorenda:
1. The subject Lease executed between (JCI] and Colony
Surti] for the ipremises) was within the ordinery
Gourse of (Colony Surf's) business
3
‘+*¢NOT FOR PUBLICATION***
ry prerequisite
2. (The Bank's) consent was not a neces
to the Lease, thus, it was irrelevant.
3. [The Bank] Bad no right £9 preapprove the. Le
(Citations omitted.)
Crs statements as to the Lease were not facts that
fell within the designated categories of “generally known,”
“capable of accurate and ready determination,” Hawai'i’ Rules of
Evidence (HRE) Rule 201(b) (2003), nor of “common knowledge,”
State v. Arena, 46 Haw. 315, 341, 379 P.2d 594, 609 (1963).
lence, the statements were not proper for judicial notice under
HRE Rule 202 (e).
Radomile argued that JCI’s “judicial admissions made
previously in this action bind [JCI].” (Emphasis added.) In his
opening brief, he argues that JCI “should not be allowed to
reverse course to meet its present litigation goals.” The
doctrine of judicial estoppel “estops a party from assuming
inconsistent positions in the course of the same judicial
proceeding.” Hosa v, CW Contractors, Ltd., 4 Haw. App. 210,
219, 664 P.2d 745, 752 (1983). However, the doctrine “does not
preclude a party from pleading inconsistent clains or defenses
within @ single action." Id. See Hawai'i Rules of Civil
Procedure Rule 8(e) (2) (1998) ("A party may set forth two or more
statements of 2 claim or defense alteratively or hypothetically,
either in one count or defense or in separate counts or
defenses." (Emphasis added.)). Thus, JCI could assume
alternative positions. Therefore,
In accordance with HRAP Rule 35, and after carefully
a4
‘**NOT FOR PUBLICATION***
reviewing the record and the briefs submitted by the parties, and
duly considering and analyzing the law relevant to the arguments
and issues raised by the parties,
IT IS HEREBY ORDERED that the court's September 10,
2002 second amended final judgment is affirmed.
DATED: Honolulu, Hawai'i, October 12, 2005.
on the briefs:
Richard £. Wilson! for Porter
Defendant /crose Claim .
Defendant-Appeliant Sec Girloc sae
Marco A. Radomile.
Gary ¥. Shigemura and Pecsetes Cente AEE
Junsuke Otsuka for
Defendant /Cross-Claimant~
Appellee James & Cecile, , aN
Ine.
|
ded9ec96-5dda-4f9a-93d1-37bbcb2e999a | Sheehan v. Grove Farm Company, Incorporated | hawaii | Hawaii Supreme Court | Nos. 25811 and 26030
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
sss
MICHAEL G. SHEEHAN, SR., Petitioner-Plaintiff-Appellant
GROVE FARM COMPANY, INCORPORATED, a Hawai'i corporation, ALPS
ACQUISITION SUB, INC/, HUGH W. KLEEANN, ALLAN A. SMITH, SANDRA L.
DRY, DONNA. CARSWELL, PAMELA W. DOHRMAN, ROBERT D. MULLINS,
WILLIAM D. PRATT, WILCOX PATTERSON, and’ RANDOLPH G. MOORE,
Respondent #-Defendant s-Appellees
and
SANDRA DAY and WILCOX PATTERSON, Respondents-
ALLAN SMITH,
Defendants
See
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 00-01-0211)
NG APE! FOR an
J.; for the court)
ORDER Gi
(ey: Nakeyans,
Petitioner-Plaintiff-Appellant’s Application for Writ
2005, is hereby granted.
of Certiorari filed on October 13,
DATED: Honolulu, Hawai'i, October 19, 2005.
FOR THE COUR’
Pula CSnattin ons
Associate Justice
Richard E. Wilson,
for petitioner-plaintiff-
appellant on the writ
ots
|
0d9aba45-12ce-4d4a-9eab-da508e090511 | Cobb-Adams v. Koga Engineering and Construction, Inc. | hawaii | Hawaii Supreme Court |
IW THE SUPREME COURT OF THE STATE OF HAWAT
ea
GERD K. COBE-ADAMS, Claimant-Appellee =.
No. 27419
3
5
KOGA ENGINEERING AND CONSTRUCTION, INC., Employer-Appellam®
and
SEABRIGHT INSURANCE COMPANY, Insurance Carrier-Appellant
a
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2003-501 (WH) )
ORDER
(ey: Duffy, J. for the court!)
upon consideration of Appellants Koga Engineering and
Construction, Inc. and Seabright Insurance Company's motion for a
stay of the decision and order filed on May 31, 2005 and the
order denying the motion for reconsideration filed on July 13,
2008, the papers in support and opposition, and the records and
files herein, it appears Appellants fail to demonstrate they are
entitled to a stay pending appeal. Therefore,
IT 18 HEREBY ORDERED that the motion is denied.
DATED: Honolulu, Hawai'i, November 29, 2005.
Roland Q.P. Them FOR THE COUR’
and Laurie E. Keenc
for employer-appellant Gre, Ouceyy qe
and insurance carrier~
appellant on the motion Associate Justice
Earl 7, Nakasato
for claimant-appellee
in opposition
Consigered by: Meony C.J.»
Levineon,
ayeme, Reoba, and Duffy, 52.
amt
|
c4dd105b-caef-4c9c-a916-a88636bd9d46 | Adam v. State | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION ***
Wo, 27366
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
RICHARD ADAM, Petitioner-Appellant,
vs. :
STATE OF HAWAI'I, Respondent~Appellee.
APPEAL FROM THE THIRD CIRCUIT COURT, KONA DIVISION
(SPP Ro, 09-1-00018)
(ey: Nakayama, J. for the court?)
Upon review of the record, it appears that the circuit
court has denied a hearing in SEP No. 03-1-0001K pursuant to HREP
40(£), but has not disposed of the proceeding by entering a
judgment dismissing or denying the petition pursuant to HRP
40(q)(2). Thus, the appeal of the June 1, 2005 order denying a
hearing is prenature and we lack jurisdiction. Sea HREP 40(n)7
HRS § 641-11. Therefore,
17 18 HEREBY ORDERED that this appeal ie dismissed for
lack of appellate jurisdiction,
DATED: Honoiulu, Havas't, September 21, 2005.
FoR THE couRr:
Peeta bi emtiny ants
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Dufty,
g9.
|
000740bf-4fda-4f80-b157-060915f1a725 | State v. Gaston | hawaii | Hawaii Supreme Court |
No. 26849
a2
N THE SUPREME COURT OF THE STATE OF HANI
STATE OF HAWAI'I, Respondent/Plaintiff-App®
RHUDEL G. GASTON, Petitioner/Defendant-Appellant
ee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFFIC NO. 04043629)
TION FOR WRIT OF ©
a
‘Acoba, J., for the court")
certiorari filed on August
‘The Application for Writ of
Soner/Defendant-Appellant Rhudel G. Gaston is
31, 2005 by Pe
hereby denied.
DATED: Honolulu, Hawai'i, September 12, 2005.
FOR THE COURT: {SPD
‘Ee a
‘Resociate Justice
Earle A. Partington, on
the weit.
Moon, C.J-+ Levinson, Nakayame, Acoba, and
considered by:
putty, 39.
|
600c4ea6-c728-4324-9fbb-db0df9d12eb7 | State v. Maldonado. ICA Opinion, filed 06/06/2005 [pdf], 108 Haw. 446. Dissenting Opinion by J. Nakamura [pdf]. S.Ct. Order Granting Application for Writ of Certiorari, filed 07/12/2005 [pdf], 108 Haw. 1. S.Ct. Order Denying Motion for Reconsideration, filed 12/14/2005 [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
|
aa
IN THE SUPREME COURT OF THE STATE OF HAMAIT,
~--000~
Lee fd ah
STATE OF HAWAI'I, Petitioner/Plaintiff-Appeliae,
ai
JOBERT LYLE MALDONADO, Respondent /Defendant-Appellant,,
and
KEVIN WAYNE ANTHONY and WENDY UALANI TOMIKO OKIMOTO, Defendants.
No. 25606
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 02-1-1297)
ccTosER 14, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY DUFFY, J.
Following a jury trial in the Circuit Court of the
First Circuit, the Honorable Victoria S. Marks prt
Aiding,
respondent-defendant-appellant Jobert Lyle Maldonado was found
guilty of
(1) one count of promoting a dangerous drug in the
first degree in violation of Hawai'i Revised Statutes (HRS)
§ 712-1241(1) (a) (Supp. 2001);! (2) one count of promoting a
‘HRs § 712-1242, entitled “Promcting @ dangerous drug in the first
ree,” provides in velevant part
(2) A person commits the offense of pronoting # dangerous drug in
the first degree if the person knowingly:
id) Manufactures # dangerous drug in any anount |]
(2) Promoting 2 dangeross orug in the first deoree is class A
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dangerous drug in the second degree, HRS.§ 712-1242(1) (b) (4)
(1993 & supp. 2001);7 (3) two counts of promoting a dangerous
drug in the third degree, HRS § 712-1243 (1993 & Supp. 20017;"
felony,
a) Notwithstanding any lew to the contrary, if the commission of
the offense of prometing a dangerous drug in the first degree under this
Section invelved the possession, distribution, or manufacture of
Rethanphetanine, st any of its salts, isomers, and salte of isomers, the
Person convicted shell be sentenced ¢o an inseterainate term of
Unprisonment of twenty years with a randstory minimum term of
imprisonment, the length of which shell not Be less than one year and
fot greater than ten years, st the discretion of the sentencing court
for & conviction under subsection 1(a), (1) (by oF (2) (e) and not less
than'ten years for 2 conietion under Subsection (1) (a). The person
Eonvicted shall not be eligible for parole during the mandatory term of
inprisonsent-
+ RS § 712-1242, entitled “Promoting a dangerous drug in the second
degree,” provides in velevant part:
(1) A person commits the offense of promoting # dangerous drug in
ond degree if the person knowingl:
(b) Foesesses one oF more preparstions, compounds, mixtures,
or substances of an aggregate weight off
Us)" cne-eignen cunce or more, containing
ethamphetanine, heroin, morphine, ‘oF cocaine or
ny of their reepective salts, isomers, and
Salts of iseners(e)
i2) Promoting s dangerous drug in the second degree is a Cl
felony.
i3) Notwithstanding any law to the contrary, if the comission of
tthe offense of promoting a dangerous drug in the second cegree under
this section involved the possession or distribution of methamphetamine,
Of any of its oalts, isomers, and salts of isomers, the person convicted
Shall be sentenced to an indeterminate term of imprisonment of ten years
‘ith a mandatory minimum tere of imprisonment, the length of which shall
Ee'not less than six months and not greater than five years, at the
Siecretion of the sentencing court. The person convicted shall not be
Gligible for parele during the mandatory term of imprisonment
> ns § 722-2243, entitled “Promoting a dangerous drug in the third
degree,” provide:
(2) A person commits the offense of promoting @ dangerous drug in
the third degree if the person knowingly possesses eny dengerous drug in
any amount
(2) Promoting 6 dangerous drug in the third degree is 2 Class C
felony.
2) Notwithstanding any lew to the contrary, if the comission of
(cont ined.
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and (4) one count of unlawful possession of drug paraphernalia,
HRS § 329-43.5 (1993).‘ On June 6, 2005, the Intermediate Court
of Appeals (ICA) issued a published opinion vacating the cizcuit
court’s January 24, 2003 judgment and remanding for further
proceedings. State v. Maldonado, No. 25606 (Haw. App. June 6,
2005) (hereinafter, ICA Opinion]. The State of Hawai'i
(hereinafter, the prosecution] subsequently applied for a writ of
certiorari to review the ICA Opinion.
We granted the prosecution's application for a writ of
certiorari for two purposes: first, to address the following
question raised by the prosecution -- whether HRS § 603-11
(1993),* the so-called “knock-and-announce” rule, may be
(continued)
the offense of promoting # dangerous drug in the third degree under this
Section savolved the possession cr distribution of methamphetamine, the
Person convicted shall be sentenced to an indeterminate term of
Exprisonment of five years with a mandatory minimum term of
fit, the length of which shall be net less than chixcy days and
jer than twovand-ashalf years, at the discretion of the
Sentencing court. The person convicted shall not be eligible for parole
Garing the mandatory term of imprisonment.
+ wns § 329-43.5, entitled “Prohibited acts related to drug
paraphernalia,” provides
(a) 1 4s unlawtel for any peraon to use, oF to possess with intent te
use, drug parephernalis to plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process, prepare,
analyze, pack, repack, store, contain, conceal, inject, snge:
of otherwise introduce into the hunan body a controlled substance in
violation of this chapter. Any person who Violates this section is,
guilty of a class © felony and upon conviction may be imprisoned
Pursuant to section 706-660 and, if appropriate aa provided in section
506-641, fined pursuant to section 706-600.
RS 603-11, entitled “Entering house to arrest,” provides:
Wnenever it is necessary to enter # house to arrest an offender, and
(cont Inve...)
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satisfied by substantial compliance. For the reasons stated by
the ICA and adopted herein, we agree that, based on the facts of
this case, where the police opened a closed screen door and broke
the threshold of Maldonado’s dueling prior to announcing that
they bore an arrest warrant and without waiting for 2 reasonable
time after demanding entry, #RS § 803-11 was violated, with the
consequence that the subsequent search of Maldonado’'s home and
seizure of evidence therefrom were invalid. Second, although we
agree with the ICA’s application of HRS § 803-11, we also granted
certiorari to notice error in the ICA’s analysis of the
sufficiency of the evidence supporting Maldonade’s convictions in
Light of the illegal search and seizure. Because there was
insufficient admissible evidence to support his conviction on any
of the counts, we now vacate the ICA Opinion in part and remand
the case to the circuit court for entry of a judgment of
acquittal.
+1. -continued)
entrance 1s refused, the officer or person making the arrest may force
Gn entrance by breaking doors or other barriers. But before breaking
ny door, the officer or person shall firse demand entrance ine loud
voice, and state thet the officer or person is the bearer of a warrant
Sf seresty or if it is ine case in wnich arrest is lawful withoot
warrant, the officer or person shel) substantial
Information in an audible voice
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1. BACKGROUND
Because it is not necessary to address any dispute
regarding the substantive facts, this court adopts the following
factual background set forth in the ICA Opinion:
(on June 25, 2002, the State charged Maldonado with five
counts relating to contraband. Maldonado filed his Motion to
Suppress Evidence (Wotion to Suppress) on August 7, 2002, asking
that “all evidence obtained ar s result of an silegel seizore and
fearch of the Defendant's residence” be suppressed. Hearings on
the motion took place on August 22, Septenber 5, and Septenber 16,
2002.
Atvthe hearings, Deputy Sheriff Cayetano’ (Cayetano)
testified that on June 10, 2002 he was contacted by the Honoluly
Police Department (HPD) recarding 2 tip HPD.had received on the
whereaboute of one of Hawaii's mest wanted fugitives, Rebert,
Maldonado (Robert], Maldonedo’s brother. The tipster provided
Information that Robert was at Maldonado’ s hone and thee. firearms
and drugs might be present. Police officers, including Officer
Yosenor (Yosenori) and Officer Pagan (Pagan), went to Maldonado’s
residence to assist Cayetanc in executing the arrest warrant for
Robert. Bese on Sober='s status as “nost-wantes,” the officers
Were armed and had oh bullet-proof vests. The officers approached
the house, and Cayetanc could see that the lights were on, the
exterior screen dost was closes, and the interior wooden door was
open.
Cayetano had his gun unhclstered and to his side. Cayetano
testified that he simulraneousiy knocked on and opened the screen
door and “announced, “Sheriff's Office, Police.” it was only
‘after Cayetano knocked and opened the screen door that Re asked if
he could enter and stated that he had a "retake warrant.”
Cayetano testified when he opened the screen door, he looked into
the house and ic war possible that a portion of his opper body
Erossed the threshold of the house, but he did not enter the
house. After Cayetano opened the door, he saw Maldonado, Wendy
Okimoto (Okimote}, and Kevin Wayne Anthony (Arthony)* in’a back
Yoon. The three individuals in the back room looked in the
direction of the officers
* Although the TCA opinion called into question the circuit court's
factual fingings regarding the precise sequence of events leading to the
search of Maldenade’s hone, we, like the ICA, decline to express an opinion as
to whether those findings are clearly erroneous because we agree with the ICA
that, even on the facts as found, the circuit court's conclusions cf law
regarding the motion to suppress were erroneous
co-defendants Wendy Okincto and Kevin Mayne Anthony were charged with
the sane first four counts ao Jobert Maldonado (Maldonado), but they were
acquitted of al counts. (Footnote in ICA Opinion.)
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Cayetano testified that he said(,) “serift's office,
police: is Robert here?” and Maldonado said(,] “Wo.” Cayetano
Eestified that he asked, "Oo you mind us coming in? We’ Fe locking
for Robert," and Msidenade said, "Yeah, yeah, yeah." The officers
then entered the house. Cayetano asked Maldonado if he was the
Dune of the place, and Maldonado said yee. Cayetano testifies
thet he Anstructes Maldonado, Okinoto, and Anthony £0 exit the
house for safety reagcna and’ wait cutaide with other polite
Ditivers; Haldonads, Okimote, and Anthony left che novee.
‘Yosenori testified that he knocked on the screen door, saw
tthe screen door wee unlocked, and then opened the screen door
‘hile announeing{,] “Police and sheriffs,” Yosenori testified
That he opened che screen door becsuse he could see people in the
house through the screen dooty but did not “have a good picture”
Of their movenents, "like if snyone might have Been pulling out a
Weapon or something.” Yosenori stated that the screen door opened
Outward and he had his back against the door holding 1t open snd
fied one fost on the platform in front of the door and one foot on
the Gooreiil. Yosenori hea his wespon cut, but he was holding it
Soun toward the ground. Yosenori testified that Cayetano told the
people to cone out of che Feo
There. Neldonado said no. Yosenori asked who lived ther:
Ualdenado said he did. Youenori asked Maldonado if he was
Rebert’s brother, snd Maldonado said yes. Yosenori testified that
Cayeteno asked if they could go inside and look for Robert, anc
Naldonado sai “yeah.”
Yosenori testified that he entered the house first and went
into the closest room, but found no one in the room. He then went
fo the back room from’ which Maldonado, Okimote, and Anthony had
exited. Yosencri noticed that “right oot in the open in the
iddle of the flocr” there were three glass pipes with residue
{aside Based on Yosenori’s experience and training, he believed
the pipes were used to snoke rethanphetanine, Yosenori also found
a'giass dish with sone crystal substance inside, a can of acetone,
and 2 box of Baking soda. Following procedure, Yosenori notified
the harcotice division clandestine Lab te
pagan testified that six or seven officers approsched the
house. The officers secured the perineter of the house, and
Pagan, Cayetano, and Yosenori went to the front door. As the
Officers spproached the house, Pagan was holding a shotgun towards
the hosse. While ne was standing behind Cayetano and Yosenor! at
the front door, he held the shotgun pointed downward. Pagan
testified that when Cayetano esked Maldonado if Robert was there,
Maldonado aneweres no. Cayetano then asked Maldonado if they
Could “make entry into the residence to mske sure that [Robert]
sen’ there.” Yosenori asked the same question. Pagan testified
thet he heard Maldonado answer yes to the officers’ questions:
After the officers entered the Meuse, Fagan raised his shotgun
but he dig not point i at Maldonado, Okimoto, and Anthony. Pagan
testified thet firearms were found by the police "on the side of
the noose.”
Maldonado testified that on June 10, 2002, he was with
Okimote and Anthony in a room in his house when'he Neard "one Loud
noise thet said oh, everybody, get cut of the room.” He stated
‘
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that by the time he cane out from the back room, the police were
Sright inside my decrway already; in fact, they were pretty much
snaide my house." The police hed their gins out and one officer
hag 2 rifle pointing in the general directicn of Meldonedo,
Okinote, and Anthony. Maldonado claimed he felt threatened and
Scared because of the presence of the police and their firearms,
even though no one sade any verbal threats. Meldonsdo testifies
that when the police asked whether they could look for Robert,
Maléonase said{,] “I guess[,)” or “yeah,” agreeing with the
request.
The circuit court denied Maldonade's Notion to Suppress and
issued its "Findings of Fact, Conclusions of Law and Orger Denying
Defendant's Motion to Suppress Evidence” on November 12, 2002.
‘The circuit court's Findings of Fact and Conclusions of Law were
3s follows!
FINDINGS OF FACT
1. On une 10, 2002, the Department of Public Safety and
the Honeiuiu Police Department acted ona tip that
parcle violator, Robert Maldonado (defendant JOBERT
EALoo\abo's brother) was currently st an apartment at
1706A Apaki Street.
2. A Sheriff's deputy and Honolulu Police Department
Seficers were in possession of an arrest warrant
Guthorizing then fo arrest Robert Maldonado; and when
the officers went to that address they confronted
Sefendant JOSERT MALDONADO.
3. According to the information given to the officers,
Firearms were purported to be present. at the premises
where Robert Noldonado had bean reported, Which Ww
Gefendant JOSERT MALDONADO" © reeigence.
4. hen they approached the premises where Robert
Maldonado was reported tobe, one or more officers
knocked on the door, announced thelr presence and
office (both the police and the sheriff) and denanded
Gntzyi then one oF nore officers pare daily entered the
Enent door of defendant HALDONADO's residence, by
Opening a screen door outward and crossing the
threshold with part of one officer's body.
5. The wooden interior door had been open before the
officers arrived at the premises, and the officers
Could see through the screen door te. the interior of
the residence before opening the screen door.
6. The officers asked defendant JOBERT MALDONADO if
Robert Maldonado was present, but when defendant
MALDONADO told them Robert was not there, the officers
asked to check the premises anyway.
7. Defendant MALDONADO gave the officers permission to
Check the premises st which tine the officers entered,
and once inside they saw what appeared to be &
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“elandestine 1ab" used for the production of
ethanphetanine.
©. Also chsezved within the residence were the two other
Covdefendents, KEVIN WAYNE ANTHONY ana WENOY UALANT
‘TEMIKO OKINOTO, who hag both exited the room where the
Purported clandestine iab was found.
CONCLUSIONS OF LAK
1. The officers who approached defendant MALDONADO were
in compliance with § 804-11 [sic] HRS requirements to
knock snd announce their office, and demand entry
before forcibly entering the promises to execute a
warrant of arrest. Seal,] gail) State vs larads, 98
Haw(ari ) 16(, 41 p.3a 174} (2002) -
2." Im addition to satisfying the “knock and Announce”
rule, the officers in this case also obtained
permission from defendant JOBER! MALDONADO to enter
the premises to search for Robert Maldonadc.
3. Even 4 the officers had not met the requirements of
the "Knock and Announce” rule, the officer's [etc]
premises constituted an exigent circumstance
Justifying entry into the residence.
4. Concerning discovery of egutpnent suspected of being a
Scvcslied “clandestine lap" ang other contraband
Gbserved by the officers, once the officers were
properly in the residence, observation of these
Rateriale was proper snd allowable as the evidence wae
Gn “open view.” State vy Stachlex, 56 Haw. 412, 570
Pid i323] (2577)
Following the circuit court’s oral denial of
Maldonado’ s motion to suppress on September 16, 2002, the case
proceeded to trial, and on Novenber 8, 2002, Maldonado was found
guilty by the jury on all five counts alleged in the complaint.
On January 24, 2003, the circuit court entered a final written
judgment sentencing Maldonado to an indeterminate term of varying
length for each count, the sentences to be served concurrently
but with a mandatory minimum of two and a half years.
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Maldonado appealed on January 28, 2003 and the case vas,
assigned to the ICA. Maldonado argued, inter alia, that the
circuit court erred in denying his motion to suppress and in
denying his motions for a judgment of acquittal. The ICA agreed
in part, and on June 6, 2005, issued a published opinion vacating
the judgment of conviction and sentence and remanding for further.
proceedings.
In its ppinion, the ICA found that the entry of
Maldonado’s hone was in violation of HRS § 803-11 and, thus, that
the cizeuit court had erred in denying Maldonado’s motion te
suppress the evidence collected as a result of the subsequent
illegal search and seizure. The ICA found, however, that there
was substantial evidence in the record to support Maldonado! #
convictions and that the circuit court’s denial of his motions
for acquittal was therefore not error. Specifically, the ICA
relied on the following evidence as being sufficient to support
Maldonado’'s conviction on each count: (1) contraband found in
the back corner rooms (2) the fact that Maldonado lived at the
residence and had control of the house; (3) the fact that
Maldonado was witnessed exiting the room where drugs and
contraband were found; (4) a pipe with the initials “JM” found in
the back room; and (5) methamphetamine found in Maldonado’ s pants
pocket.
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The prosecution filed an application for a writ of
certiorari challenging the ICR’s conclusion with respect to the
legality of the police entry into Maldonado’s home. In its :
application, the prosecution argued that the entry, as well as
the subsequent search and se{zure, was valid for any or all of
the following reasons: (1) the police substantially complied
with the “knock-and-announce” rule; (2) the possible presence of
firearms at Maldonado’s home constituted exigent circumstances
such as to excuse the police from compliance with the “knock-and-
announce” rules (3) Maldonado consented to the search; and (4)
the drug paraphernalia and other items of evidence were found in
plain view. The ICA rejected these arguments as follows: (1)
the police violated the “knock-and-announce” rule, HRS $ 803-11,
by (a) failing to announce that they bore an arrest warrant
before “breaking” Maldonado’s door, and (b) failing to wait a
reasonable time after demanding entry and before breaking
Maldonade's door; (2) the possible presence of fir
rms, without
more, did not constitute exigent circumstances excusing non-
compliance with HRS § 803-11; (3) Maldonado’s consent to the
police search of his home was based on duress and was also the
* Ag the ICA noted, “breaking” as used in HRS § 803-11 is a term of art
and does not imply or require the use of any physical force beyond thet
[Evolved fn opening @ closed but unlocked door. Harada, 9© Hawai'i at 22, 41
Pod ot 1767 Seate vy Dixon, 63 Howal' 13, 16, 920 F.2d 261, 186 (2396)
20
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been in plein view but for the sile58) entry By the police.
We granted the prosecstion's application tor
Inpcoperiy relied on the very evidence obtained a» reslt of
‘Il. STANDARDS OF REVIEW
A. Motion to Suppress
givclisira samamiiimn tents Seige
State v. Anderson, 84 Hawai'i 462, 467, 935 P.2d 1007, 1012
(907) (cltattone, embasen, and internal quotation signta
was ‘right’ or ‘wrong’.” State v, Kaubi, 86 Hawai'i 195, 197,
948 P.2d 1036, 1038 (1997).
un
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B. Sufficiency of the Evidence/Judgment of Acquittal
[Evidence adduced in the trial court must be considered in the
strongest light for the prosecuticn when the appellate court,
passes on the legal suéficiency of such evidence to support @
Conviction; the Sane standard applies whether the case was before
S'Judge or Jury. The cest on appeal ie not whether guilt, ss
Established beyond 2 reasonable doubt, but whether there was
Substantial evidence to support the conclusion of the trier of
fet
State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998)
(quoting State v, Quitog, 85 Hawai'i 128, 145, 936 P.2d $59, 576
(1997). “‘Substantial evidence’ as to every material element of
the offense charged is credible evidence which is of sufficient
quality and probative value to enable @ person of reasonable
caution to support a conclusion.” Richie, 88 Hawai'i at 33, 960
P.2d at 1241 (internal quotation marks and citation omitted).
‘The standard to be applies by
notion for a judgment of acquiteal 18 whether, pon the evidence
USewed in the light most favorable to the prosecution snd in fell,
Fecognition of the province of the trier of fact, a reasonable
hnind might fairly conclude guilt beyond a reasonable doubt. An
Gppellote court employs the sane standard of review
State v. Keawe, 107 Hawai'i 1, 4, 108 P.3d 304, 307 (2005)
(brackets omitted) (quoting State v. Pong, 78 Hawai'i 262, 265,
892 P.2d 455, 458 (1995)).
TIT. pIscussoN
A. The Circuit Court Erred When It Denied Maldonado’ s Motion to
5 “caus onclu e Police
Home and Seiure of Evidence Therefrom Were Tlleaal.
‘The ICA concluded that “[bJecause the [HPD and
trial court in reling upon
Sheriff's Department] officers failed to follow the mandate of
HRS § 803-11 and illegally entered Maldcnado’s home, the items
2
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seized as [a] result of the illegal entry should have been
suppressed." We hereby affirm this conclusion and adopt the
reasoning set forth in Section III.A of the ICA Opinion. Rather
than repeat the ICA's analysis in full, we will review two key
points in the ICA Opinion, as well as make a third point of our
1. The Police Violated HRS § 803-11 By Failing to Announce
That They Were Bearers of an Arrest Warrant Before
Breaking the Door of Maldonado’ s Dwelling.
As the ICA noted, this court has previously stated that
the requirement in HRS § 803-11 that law enforcement announce
that it is the bearer of an arrest warrant prix to “breaking any
door” is not to be taken lightly. Dixon, @3 Hawai'i at 17, 924
P.2d at 185, Here, the circuit court found that the police: (1)
knocked on the screen door: (2) announced their presence and
demanded entry: (3) opened the screen doors and then (4)
partially entered the house. Although the circuit court did not
make any express written findings with respect to whether the
police announced their purpose (i.e, that they had come to
execute @ retake warrant for Robert Maldonado) before opening the
screen door, the record demonstrates, as the ICA noted, that they
did not do so until after the four events above had already
transpired. By failing to state that they bore a warrant prior
to opening the screen door, the police violated HRS § 803-11.
3
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2. The Police Also Violated HRS § 803-11 By Failing to
Wait a Reasonable Time After Demanding Entry Before
Breaking the Door of Maldonado’ s Dwelling.
As the ICA also noted, law enforcement must wait a
reasonable time after demanding entzy before breaking the door.
See State v, Garcia, 77 Hawai'i 461, 469, 687 P.2d 671, 678 (App.
1995) (ten-second delay insufficient under HRS § 803-37"). Here
again, the circuit court did not enter any written finding, but
the evidence in the record as to the length of time between the
demand for entry and the opening of the screen door demonstrates,
as the ICA noted, that the two events were essentially
simultaneous, We therefore concur with the ICA and hold that the
police violated HRS § €03-11 by failing, prior to breaking the
screen door of Maldonado’s house, to (1) state that they were
bearers of an arrest warrant, and (2) wait a reasonable tine
after demanding entry. Accordingly, the ICA was correct in
* HRs § 203-37 (1993), the companion statute to HRS § 603-11, sets forth
‘the knock-and-announce rule with respect to the execution of search warrants
as opposed to arrest warrants), ond provides in pertinent part: “If the
doors are shut the officer must declare the officer's office and the officer's
Dusiness, and denand entrance. If the doors, gates, or other bars to the
fentrance ere not inesistely opened, the officer may break then.” This court
has previously trestes both statutes similarly, and we consider then jointly
for present purposes az well, See Wazada, 98 awai't at 29, 41 P.3d at 185
(preferring & reading that avoide necneruity between the two statutes}; State
wtlenekt, $2 Hawai 562, 65, 993 P.2a 1291, 2194 (2000) (wAltheugh the
Tenguege, of as $6 802-12 and €03-37 differs, ‘the purposes of the “knock and
announce’ rule are identical in each context |.]*)
a
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concluding that the circuit court erred in denying Maldonado’ s
motion to suppress."
3. The Doctrine of Substantial Compliance Contravenes the
Plain Language of BRS § 803-11.
In addition to noting our agreement with the ICA, we
now address a doctrinal point. Both the prosecution and the ICA
dissent contend that the validity of the search and seizure
should be analyzed under a “doctrine of substantial compliance”
(Le., a lack of ‘strict compliance with the terms of HRS § 803-11
should not warrant suppression of subsequently obtained evidence
Af the purposes of the statute are not offended). This
contention is without merit.
First, our prior case law contains no reference to
substantial compliance: rather, it establishes that the knock-
and-announce rule must be strictly followed. For example, in
Harada, we held that “the requirements of the knock and announce
rule are not met when police officers fail to orally demand
entry, and a demand of entry cannot be implied from simply
% We also agree with the ICA thet neither Maldonado’ e consent nor the
‘plain view" doctrine excuses the failure of the police to comply with #RS S
863-11 because both were premised on, and the fruit of, the prior illegal
entry. See State t. Pau, 72 Faw. 505, 508-10, 824 P.2d 893, £35-36 (1982)
(defendant's waiver of constitutional rights is invalid where induced by
iflegai search); State v. Phillipe, 67 Haw. 535, 541, 696 P-24 246, 351” (1985)
(A search is not to be mace 1egel by what it turns up.” (Citation, quotation
harks, and brackets omittea.)]. Finally, we agree thet the possibie presence
Of firearms does not constitute an exigent’ circumstance suspending, excusing,
Of otherwise obviating lew enforcenent's duty to comply with HiRE # 803-11,
where, as here, it does not require an innediate response "to prevent ininent
Ganger to life or serious danage to property, or to forestall the likely
escape of 2 suspect or the threstened renovel or destruction of evidence.”
Statevs Lloyd, 61 Haw. 505, £12, 606 P.2d 913, 918 (1980).
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‘Police, search wi +" 98 Hawai'i at 29, 41 P.3d at
185. (Emphasis added.) Significantly, we held that law
enforcement must explicitly make a demand for entry even though
it would be reasonable to infer that if law enforcement officials
standing at the entry to a residence state, “Police, search
warrant,” then it follows that they wish to enter the residence
to execute the warrant. Thus, given that we have previously
found a violation of the knock-and-announce rule where law
enforcement could be deemed to have substantially complied, the
ICA majority in this case correctly rejected the argument that
“substantial compliance” with HRS § 803-11 is legally sufficient
in the absence of exigent circumstances. To remove any remaining
doubt, we now expressly reject the doctrine of substantial
compliance because it violates the plain language of the statute.
To employ the substantial compliance analysis in a
statutory reconstruction of what is plain and unambiguous in HRS
§ 803-11 would infringe on the legislature's prerogatives in our
governmental system of separation of powers. It is true that
both the fourth amendent to the United States Constitution and
article I, section 7 of the Hawai'i Constitution require only
that a search or seizure must be r
sonable. See Dixon, 63
% the constitutional analysis is relevant because, although the ICA
dissent ie packaged in terme cf “substantial compliance,” its contents are
Simply the view thet law enforcement in this case acted reasonably under the
circumstances
1
*** FOR PUBLICATION ***
Hawai'i at 22-24, 924 P.2d at 190-92 (noting that the common-law
“knock-and-announce” principle is part of the constitutional
reasonableness inquiry and quoting with approval Wilson v.
Arkansas, 514 U.S. 927, 934 (1995), for the proposition that not
“every entry must be preceded by announcement” because the
“Fourth Anendnent’s flexible requirement of reasonableness”
allows consideration of “countervailing law enforcement
interests”). See also Richards v, Wisconsin, 520 U.S. 385, 394
(1997) (whether failure to comply with a common-law knock-and-
announce rule when executing a warrant will be excused depends on
whether compliance was reasonable under the circumstances of a
Given case). However, where the legislature has enacted a valid
statute that provides greater protection than the constitution,
conformance to the statutory mandate, and not the lower
reasonableness standard set forth by the state or federal
constitution, is required. Harada, 98 Hawai'i at 49-50, 41 P.3d
at 206 (Acoba, J. concurring in part and dissenting in part).
Because the statute thus affords greater protection than the
constitution, the constitutional reasonableness inquiry is not
implicated. Accordingly, we find no room in the knock-
© We caution, however, that in requiring strict compliance with HRS §
803-11 we do not mean to repudiate our prior case law using the constitutional
Feasonsbleness standaré as 3 aupnfiller (je, using reasonableness to
determine whether law enforcement has in fect’ strictly complied with the
Statute where the plain languege of the statute is silent}. For example,
neither HRS § 603-11 nor HRS § 803-37 states exactiy how long law enforcement
Hust wait efter announcing its presence before areaking a door. Accordingly,
(continued. --)
7
*** FOR PUBLICATION ***
and-announce statute for the doctrine of substantial compliance:
to limit the protection afforded by HRS § 803-11 with such an
overlay would violate the express language of the statute and be
incompatible with this jurisdiction's viable and controlling
precedents.
B. The Circuit Court Erred in Denying Maldonado’s Motions for
Sudgnent oi
vs 3 Support
Although the ICA correctly ruled that the evidence
seized from Maldonado’s hone as @ result of the illegal entry
should have been suppressed, it then erroneously relied on that
same evidence to conclude that “substantial evidence existed to
support a11 of the convictions, and the circuit court did not err
in denying Maldonado’ s motions for judgment of acquittal.” This
court has previously held that “[a)ssuming an unreasonable search
or seizure, any evidence derived therefrom is inadmissible in a
criminal prosecution, and a conviction obtained thereby must be
reversed.” State v. wallace, 80 Hawai'i 382, 393, 910 P.2d 695,
706 (2996) (internal citations, quotation marks, and ellipsis
omitted). However, this court in Wallace went further and held
not only that such a conviction must be reversed, but that, “for
purposes of determining whether the double jeopardy clause of
BU, -continued)
he court
law enforcement
abe, 867 Po2d Y sexasa,
5. Concurring in part and dies
whether, under the circumstances of the given case,
bie amount of time. Garcda, 17 Nawai'd at
Hawai's at 50-1, 41 F-3d- st 206-07 (Acaba,
ting in part)
*** FOR PUBLICATION ***
article I, section 10 (of the Hawai'i Constitution) precludes
retrial of a defendant whose conviction has been set aside
because of insufficient evidence, . . . sufficiency of the
evidence is reviewed based only on the evidence that was properly
admitted at trial.”? Wallace, 80 Hawai'i at 414 n.30, 910 P.2d
at 727 n.30 (emphasis in original). See also whiting v. State,
88 Hawai'i 356, 359 n.2, 966 P.2d 1082, 1085 n.2 (1998) (citing
Wallace for the proposition that material elements of the charged
offense or offenses must be supported by substantial and
admissible evidence).
Here, as the ICA correctly concluded, 211 evidence
obtained as 2 result of the illegal search and seizure of
Naldonado’'s home should have been suppressed and thus was not
properly admitted at trial. As set forth above, however, the ICA
nevertheless relied on the following evidence as being sufficient
to support Maldonado’ s conviction on each count: (1) contraband
found in the back corner room: (2) the fact that Maldonado lived
© Tt bears emphasis that this court in 0 holding relied solely on the
greater protections afforded under article 1, section 10 of the Hawal't
Sonstitution, as opposed to the protections provides under the fifth amendment
to the United States Constitution. wallace, 60 Howai's at 413 0.29, 1¢ 1.30,
Sto Pezd at 126 n.23, 12) 0-30. in Mallace, we expressly declined to follow
Surks y, United Giateg, 4370.5. 1 (1976), shich held that the fifth amendnent
Soc net ber the appellate court from considering inaduissible evidence in
Geciding whether retrial is permitted. id, at 1é-17. See also
Melson, a68 U.S. 35, 40-41 (1988) ("re is quite clear from Our opinion in
Eizis “hat 2 reviewing court must consider all of the evidence samitted by the
FLEE Score in deelding whether retrial 19 permissible under the Double
Jeopardy Clause."), Accordingly, we reject the ICA's application of Wallace
in 39 Hawaii 213, 218-19, 83 P.3d 1198, 1203-04 (App. 2001)
(holding that eliace allows the appellate court to consider inadmissible
evidence in measuring sufficiency)
9
* FOR PUBLICATION ***
at the residence and had control of the house; (3) the fact that
Maldonado was witnessed exiting the room where drugs and
contraband were found; (4) 2 pipe with the initials “JM” found in
the back room; and (5) methamphetamine found in Maldonado’ s pants
pocket. Because all of that evidence was discovered subsequent
to and as @ result of the illegal entry and thus was
inadmissible, it should not have been relied upon in measuring
the sufficiency of the evidence supporting the convictions.
Moreover, because it does not appear upon review of the record
that there was any other, admissible evidence against Maldonado,
the evidence was legally insufficient to support his conviction
on any of the counts. Therefore, jeopardy attached, and he may
not be retried.“ Consequently, the circuit court erred in
denying Maldonado’s motion for a judgment of acquittal.
TV. CONCLUSION
Based on the foregoing, we affirm the ICA Opinion with
espect to Sections I, II, and III.A, but vacate with respect to
hs in Wallace, we again emphasize that in those cases uhere there
remains substantisl, sdnissible evidence to support @ conviction, jeopardy
Goes not attach ond’ the appropriate appellate remedy is not to direct entry of
fo Judgment of acquittal, bat instesd to vacate the conviction and renand for e
new trial. gee 80 Wawai's at 414 n.30, 810 P.2d at 127 n.30
laistinguishing between reversel for trial error and reversal for evidentiary
inswfficiency:
20
*** FOR PUBLICATION ***
Sections III.B and IV. Accordingly, we remand this case to the
circuit court for entry of a judgment of acquittal.
on the wri
Ryan Yeh, Gi
Deputy Prosecuting .
Attorney, for petitioner/ Mic Delhorinnn~
plaintift-appellee
State of Hawas's Seeds ame
Jack Schweigert
for respondent /defendant- ou T
appellant Jobert Lyle C Am
Maldonado
Yartns, Digs Ore
|
486fb5c4-3a90-49ef-bc69-323ead5363fc | State v. Aragona | hawaii | Hawaii Supreme Court |
2 385002
No. 26102
IN THE SUPREME COURT OF THE STATE OF HawAr'E|°
__
STATE OF HAWAZ'I, Plaintiff-Appellee,
CONNIE ARAGONA, Petitioner-Appellant.
(Cr. No. 01-1-1876)
STATE OF HAWAT'T,
Plaintift-Appellee,
CARL DEPIETROPAOLO aka CARL Di
SR., Defendant.
EPIETROPAOLO,
(er. No. 01-1-2013)
CERTIORARI TO THE 7)
INTERMEDIATE COURT OF APPEALS
(cr.
NOS. 01-21-1876 & 01-1-2013)
ER DENYING APD] LON _F03 os
(By: Moon, C.J., for the court’)
Petitioner-appellant Connie Aragona’
® application for writ
Of certiorari, filed September 13, 2005, is denied.
DATED: Honolulu, Hawai'i, September 21, 2005,
Shawn A. Luiz, for
FOR THE courr:
petitioner-appellant,
on the writ i
ff Justice
* Soneidered by: Moos, C.3., Levinson, Nakayama, Acoba, and Duffy, oy
|
676826a7-8418-45d3-a1a4-8251659f7b86 | Office of Disciplinary Counsel v. Pallett | hawaii | Hawaii Supreme Court | no. 27086
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner, 8
JAMES M. PALLETT, Respondent. 8
(ope 99-037-5867, ODC 99-202-6032, ODC 01-375-7119)
F 108
(py: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of (1) Hearing Officer Ted A.
Chihara’s (Hearing Officer Chihara) July 9, 2004 findings of
fact, conclusion of law, and recommendation to suspend Respondent
games M. Pallett (Respondent Pallett) from the practice of law
for three months, (2) the Disciplinary Board’s January 28, 2005
report and reconmendation to suspend Respondent Pallett fron the
practice of law for five years, (3) Respondent Pallett’s
April 19, 2005 opening brief, (4) Petitioner Office of
Disciplinary Counsel’s (Petitioner ODC) May 31, 2005 answering
brief, (5) Respondent Pallett’s June 27, 2005 notice that he
would not file a reply brief, and (6) the record, we reject
Hearing Officer Chihara’s findings of fact, conclusions of law,
and recommendation, and, instead, we adopt Disciplinary Board’s
findings of fact, conclusions of law, and recommendation, except
to the limited extent that the Disciplinary Board concluded that
Respondent Pallett practiced lew while he was administratively
suspended from the practice of law.
The ODC proved by clear and convincing evidence that,
while Respondent Pallett was representing several clients in
various litigation matters, Respondent Pallett violated the
Hawai'i Rules of Professional Conduct (HRPC). While Respondent
Pallett was representing Eric Biel in a criminal case, Respondent
Pallett failed to appear in court on a Mr. Biehl’s behalf in
violation of
HRPC Rule 1.1 (requiring a lawyer to provide competent
legal representation for a client);
RPC Rule 1.3 (requiring a lawyer to act with
reasonable diligence and promptness in representing a
client);
HRPC Rule 3.2 (requiring a lawyer to make reasonable
efforts to expedite litigation consistent with the
legitimate interests of the client); and
HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRPC, knowingly assist or induce another to
do 80, of to do so through the act of another).
Respondent Pallett failed to maintain financial records regarding
Me.
Bieh1 in violation of
HRPC Rule 1.15(f) (3) (requiring a lawyer to maintain,
for at least six years, complete computerized or manual
record of all funds, securities, and other properties
of a client or third person coming into the possession
of the lawyer);
HRPC Rule 1.15(g) (requiring a lawyer to maintain
copies of cash receipts, records of disbursenents, a
subsidiary ledger, and bank statements for at least six
years after completion of the employment to which they
relate); and
HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRPC, knowingly assist or induce another to
do so, or to do so through the act of another).
Respondent Pallett failed to cooperate with Petitioner ODC’s
investigation of Mr. Biehl’s ethics complaint against Respondent
Pallett in violation of
HRPC Rule 8.1(b) (prohibiting a lawyer in connection
with a disciplinary matter from knowingly failing to
respond to a lawful demand for information from a
disciplinary authority)?
HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRPC, knowingly assist or induce another to
do so, or to do So through the act of another); and
HRPC Rule 8.4(d) (providing that it is professional
misconduct for a lawyer to fail to cooperate during the
course of an ethics investigation or disciplinary
proceeding) .
While Respondent Pallett was representing Susan Kim and
her husband, Kim Chung Sung, Respondent Pallett failed to respond
to an opposing party’s requests for production of documents,
failed to respond to the opposing party's interrogatories, and
failed to appear at court hearings on the opposing party's two
motions to compel responses to the discovery requests in
violation of
HREC Rule 1.3 (requiring a lawyer to act with
reasonable diligence and promptness in representing a
client);
REC Rule 3.2 (requiring a lawyer to make reasonable
efforts to expedite litigation consistent with the
legitimate interests of the client);
HREC Rule 3.4(e) (prohibiting a lawyer from knowingly
disobeying an obligation under the rules of a tribunal
except for an open refusal based on an assertion that.
no valid obligation exists); and
HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRPC, knowingly assist or induce another to
do so, oF to do So through the act of another).
Respondent Pallett misrepresented that he had served a copy of a
withdrawal and substitution of counsel document on opposing
counsel in violation of
HRPC Rule 3.3(a) (1) (a lawyer shall not knowingly make
a false statement of material fact or law to a
tribunal);
HRPC Rule 3.4(e) (prohibiting a lawyer from knowingly
disobeying an obligation under the rules of a tribunal
except for an open refusal based on an assertion that
no valid obligation exists);
HRPC Rule 4.1(a) (prohibiting a lawyer, in the course
of representing a client, from knowingly making a false
statement of material fact or law to a third person)
HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HREC, knowingly assist or induce another to
do so, or to do So through the act of another); and
HRPC Rule 8.4(c) (providing that it is professional
misconduct for a lawyer to engage in conduct involving
Gishonesty, fraud, deceit, or misrepresentation) .
Respondent Pallett converted Ms. Kim’s funds in violation of
RPC Rule 1.15(a) (1) (requiring a lawyer to maintain a
client trust account into which the lawyer must deposit
all funds that are entrusted to the lawyers care);
HRPC Rule 1.15(c) (providing that lawyer in
possession of any funds belonging to a client, where
Such possession is incident to the lawyer's practice of
law, is a fiduciary and the lawyer shall not conmingle
such funds or property with his or her own property or
nisappropriate such funds or property to the lawyer's
own use and benefit);
HRPC Rule 1.15(c) (requiring that 2 lawyer must deposit
all funds belonging in part to a client and in part
presently or potentially to the lawyer or law firm into
a client trust account) ;
HRPC Rule 1.15(d) (requiring a lawyer to deposit all
funds into a client trust account that are entrusted to
the lawyer, except for non-refundable retainers that
are earned upon receipt) ;' and
HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRPC, knowingly assist or induce another to
do so, or to do so through the act of another).
Respondent Pallett failed to maintain sufficient financial
records relating to his representation of Ms. Kim in violation of
RPC Rule 1.15(f) (3) (requiring a lawyer to maintain,
for at least six years, complete computerized or manual
record of all funds, securities, and other properties
of a client or third person coming into the possession
of the lawyer);
HRPC Rule 1.15(g) (requiring a lawyer to maintain
copies of cash receipts, records of disbursements, a
subsidiary ledger, and bank statements for at least six
years after completion of the employment to which they
relate); and
HRPC Rule 6.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRPC, knowingly assist or induce another to
do so, or to do So through the act of another).
Respondent Pallett misrepresented to Ms. Kim's previous attorney
that he had not filed the withdrawal and substitution of counsel
document when, in fact, he had actually done so, in violation of
HRPC Rule 4.1(a) (prohibiting a lawyer, in the course
of representing a client, from knowingly making a false
statement of material fact or law to a third person);
HRPC Rule @.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRPC, knowingly assist or induce another to
do so, or to do So through the act of another); and
Effective January 1, 2002, we amended Rule 1.15(d) of the Hawas's
Rules of Professional Conduct (RPC) by, among other things, deleting the
reference to “non-refundable retainers” and providing that “all f
retainers
fre tefundable until earned,” HRPC Rule 1-15(d) (aa amended on October 9,
2001, effective January 1, 2002).
HRPC Rule 6.4(c) (providing that it is professional
misconduct for a lawyer to engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation) .
Respondent Pallett misrepresented to opposing counsel that
Respondent Pallett did not represent Ms. Kim and her husband
when, in fact, Respondent Pallett was their attorney of record,
in violation of
HRPC Rule 4.1(a) (prohibiting a lawyer, in the course
of representing a client, from knowingly making a false
Statement of material fact or law to a third person);
HRPC Rule 8.4(2) (providing that it is professional
misconduct for a lawyer to violate or attempt to
Violate the HRPC, knowingly assist or induce another to
do so, or to do so through the act of another); and
HREC Rule 8.4(c) (providing that it is professional
misconduct for a lawyer to engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation) .
Respondent Pallett failed to cooperate with Petitioner ODC’s
investigation of Ms. Kim's ethics complaint against Respondent
Pallett in violation of
HRPC Rule @.1(b) (prohibiting a lawyer in connection
with a disciplinary matter from knowingly failing to
respond to a lawful demand for information from a
disciplinary authority);
HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRC, knowingly assist or induce another to
do so, or to do S0 through the act of another); and
HRPC Rule 8.4(d) (providing that it is professional
misconduct for a lawyer to fail to cooperate during the
course of an ethics investigation or disciplinary
proceeding) «
We reject the Disciplinary Board’s conclusion that
Respondent Pallett practiced law while he was administratively
suspended from the practice of law. Petitioner ODC alleged that
6
Respondent Pallett practiced law after the Child Support
Enforcenent Agency of the State of Hawai'i (the CSEA) had
informed Respondent Pallett that he was administratively
suspended from the practice of law based on Respondent Pallett’s
failure to comply with a child support obligation. However, the
CSEA was not authorized to administratively suspend Respondent
Pallett from the practice of law.
The Hawai'i legislature enacted HRS § S76D-13 (Supp.
1999) to authorize the CSEA to direct administrative agencies to
suspend licenses when the license-holders failed to meet their
mandatory child support obligations. Pursuant to the supreme
court’s exclusive power to promulgate rules and regulations
relating to the practice of law, the supreme court promulgated
Rule 17.1 of the Rules of the Supreme Court of the State of
Hawai'i (RSCH). RSCH Rule 17.1 authorizes the Hawai'i State Bar,
only, to suspend a lawyer from the practice of law if the CSEA
certifies that the lawyer is not in compliance with a child
support order:
Rule 17.1 Child Support Enforcement
(a) Suspension of License to Practice Law.
Upon receipt of a certification from the Child
Support Enforcement Agency of the State of Hawai‘i
(CSEA) that a person licensed to practice law in
this jurisdiction is not in compliance with an
order of support or is not in compliance with a
subpoena or warrant relating to a paternity or
child support proceeding, 7 Bar
shall_imediately suspend the license of the
person so certified.
(b) Reinstatement to Practice. A license
suspended under subsection (a) of this rule shall
not be reinstated until the CSEA or the Family
Court issues, in writing, an authorization
Canceling the certification of noncomplianc:
Upon receipt of the authorization canceling the
certification and payment of all fees and costs
7
RSCH Rule
assessed, including arrears, by the Hawai'i State
Bar, the Hawai'i State Bar shall reinstate the
license of the attorney.
(c) Fee Assessment. The Hawai'i State Bar
may assess @ reasonable fee for reinstating or
restoring a license and may also charge the
attorney a reasonable fee to cover the
administrative costs incurred by the Hawai'i State
Bar to comply with this rule.
17.1 (effective January 1, 1998) (emphasis added) .
The record shows that the CSEA sent a notice to the
Hawai'i State Bar and to Respondent Pallett that.
stated Respondent Pallett had failed to comply with his
child support obligation, and
directed the Hawai'i State Bar to immediately suspend
Respondent Pallett’s license to practice law pursuant
to HRS § S76D-13 (Supp. 1999).
However, absent clear and convincing evidence that the Hawai't
state Bar
administratively suspended Respondent Pallett from the
practice of law, the Disciplinary Board erred by concluding that
Respondent Pallett practiced law while he was administratively
suspended in violation of
HRPC Rule 1.4(a) (requiring a lawyer to keep a client
reasonably informed about the status of a legal matter
and promptly comply with reasonable requests for
information) ;
HRPC Rule 1.16(a) (1) (providing that a lawyer shall not
represent a client or, where representation has
commenced, shall withdraw from the representation of
the client if the representation will result in a
violation of the ERPC or other law);
HRPC Rule 1.16(d) (requiring a lawyer, upon termination
of a representation, to take steps to the extent
reasonably practicable to protect the client's
interests);
HRPC Rule 5.5(a) (prohibiting a lawyer from practicing
law in a jurisdiction where doing so violates the
8
law in a jurisdiction where doing so violates the
regulation of the legal profession in that
jurisdiction); and
+ HRPC Rule 8.4(a) (providing that it is professional
misconduct for a lawyer to violate or attempt to
violate the HRPC, knowingly assist or induce another to
do so, or to do so through the act of another).
Nevertheless, in light of Respondent Pallett’s other
numerous ethical violations,
IT IS HEREBY ORDERED that Respondent James M. Pallett
(attorney number 3786) is suspended from the practice of law in
this jurisdiction for a period of five (5) years, effective
thirty (30) days after entry of this order, as provided by
RSCH Rule 2.16(c).
IT IS FURTHER ORDERED that’ Respondent James M. Pallett
(attorney number 3786) shall successfully complete, at his own
‘expense, and pass the Multistate Professional Responsibility
Examination before he seeks reinstatement to the practice of law
in Hawai'i.
DATED: Honolulu, Hawai'i, September 2, 2005.
Alvin T, Ito, special
assistant disciplinary
counsel, for petitioner
WiLidam A. Harrison Slice Phtoning—
(Harrison & Matsuoka),
errigee ne Rew arnacenane
srs
Wane, Dads br
|
75fbe007-7a4d-40e9-bd4b-b64eec721f71 | State v. Myers | hawaii | Hawaii Supreme Court | LAW LISRARY
No. 25349
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I,
Respondent -Appellee,
aaud
SPENCER MYERS,
Petitioner-Appellant.
ONL Hd 6- dis:
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR NO. 02-1-0235(1))
ORDER DENYING APPLICATION FOR WAIT OF CERTIORARI
(By: Levinson, J., for the court!)
Upon consideration of application for a writ of
certiorari filed August 30, 2005, by the petitioner-appellant
Spencer Myers, the same is hereby denied.
DATED: Honolulu, Hawai'i, September 9, 2005.
FOR THE COURT:
Mimi DesJardins,
for petitioner-appellant
on the application
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and
Dotty, 99
|
306115a2-82a1-4e3e-b368-7add610797a4 | In re Tax Appeal of Alford v. City and County of Honolulu. S.Ct. Order Denying Motion for Reconsideration, filed 11/25/2005 [pdf], 109 Haw. 423. | hawaii | Hawaii Supreme Court | ‘***F0R PUBLICATION*#*
IN THE SUPREME COURT OF THE STATE. OF HAWAT'T,
000:
‘Wd 04 AON Soag
IN THE MATTER OF THE TAX APPEAL
oF
KENNETH & SOPHIA ALFORD, SURVIVOR’S TRUST, JERALD V.
DUNLAP, SEVERN STARZYNSKI, NOBUYUKI ISHINA, MCPROUD
FAMILY TRUST, HHBW FAMILY LTD. PARTNERSHIP, RICHARD C. &
JOAN ELLIOTT, BRADLEY W. BRIXON REVOCABLE TRUST, TED &
KAREN L. SIMON, THOMAS KHOY FONG WONG, WESLEY N. & JANICE M.
CALLAHAN, JEFFERY J. & ELISA V. RUNMEL, ADLOPH 6 ERICA
LAEPPLE, WAYLAND S. DUDLEY, GRACE KAE, CAROL A, LAECHELT,
HUGH C. & BARBARA J. PAPE, RUSSELL ANDERSON, DAVID J. 6
CAROL L. NOVICK, ERNEST W. @ PAMELA TUTTLE, JOHN H. COLEMAN,
WALTER S. & TERRY A. LEONG, HAROLD L. PREEMAN, WILLIAM
KOWALSKI, HENRI P. § RYOKO KOSTERMANS, RICHARD’ A. MOODY,
ERNESTO V. CASTRO, ET AL.,
GERTRUD EBERWEIN, BRUCE F. CONNELL,
PEARL R. GROVES, GLENN H. MEYER, LEO A. & JEANNETTE M. YOUNG,
GLENN R. & CYNTHIA R. CAKES, PETER © TERRY T. CHAN, ALFONSO
J. & FUJTKO BABZA, ALMA V. BROSIO, TRUSTEE, KAREN K. SCHUMANN,
AMERICAN TRUST CO. OF HAWAII, HARRIETTE 'W. RHODES, JOSEPH
MICHAEL MANKVITZ, JAMES W. WITT, WILLIS EDGAR III & LENA CHUNG
INC., BETTY JUNE CAULO, FRANK M.
HOWARD, BLACK PEARL VENTURES,
NOWDESHA, MARSHA E. LEWIS, BERNARD J. GAINEY, FRANK’ J. HATA,
YOUNG FANILY TRUST, KENDRICK WONG, RUSSELL & MAXINE ANDERSON,
YANG JA WANG, DENISE BAILEY EVANS, LEWIS G. WALDO, JAMES J.
HENRI PETRUS &
SULLIVAN, LELAND M. GARRISON, SANG TEA BOBAY,
HERBERT Y.K. WONG, PAUL N,
RYOKO KOSTERMANS, PATRICIA RUDY,
& ALICIA Y. CROMPTON, DONALD S-
BEST, ET AL., LOUIS W.
& MARILYN A. GUSTAFSON, CARL OLSON, DOROTHY
ROBERTSON, ROY D.
G. HOWARD, EDWARD RANDOLPH BROOKS & ARLENE SAYEKO KISHI, H.
VELMA JEAN BRIXON, JANES H. & DORA M. KANO,
JACK M. & MARIE A. FELIZ, YOLO TRUST,
© HELEN C. OLSON, WILLIAM C. WARREN,
BRUCE HOLLIDAY, ALBERT
HARRY MUEGGENBURG,
AUGUSTUS. TAGLIAFERRI,
JUDY L. MOORE, PAUL R.
GEORGE K. & SHARON D. IGI, MARY P. BERG,
W. & BEVERLY A. FINK, PETER & MYUNG CHOI, SALISBURY RESTAURANT
ENTERPRISE, JAMES R. TI & SANDRA R. JOHNSTON, MECHAM FAMILY
& MARY F. WITTEMAN, DANIEL W.
LIMITED PARTNERSHIP, MATTHEW H.
& SANDRA R. MOORMAN, RICHARD & KRISTINE BOSSELMANN, RONALD J.
SMERLING, FRANK & VIRGINIA REES, ANNE-MARIE VOLK, FRANKLIN M.
TOKIOKA, BARRY D. BERQUIST, WILLIAM R. KOWALSKI, JEANETTE M.
YOUNG, ERNESTO V. & NILA M. CASTRO, GAINEY TRUST, WILLIS E. I11
& LENA C. HOWARD, JOSEPH M. ¢ DOROTHY M. MANKVITZ, NEALE FAMILY
oad
FOR PUBLICATION***
ee
TRUST, JOHN & NANCY COLEMAN, TRUSTEES JACK H. COLEMAN LIFETIME
TRUST, AMNW TRUST A, UNIVERSITY OF NORTH DAKOTA FOUNDATION,
EARL STRINDEN TRUSTEE, PAPE REVOCABLE TRUST, ADOLPH & TRAUDE
(ERICA) LAEPPLE, MARGARET BERQUIST, MATTHEW & MARY WITTEMAN
RUST, LELAND M. GARRISON TRUST, HELFAND TRUST, PETER C. &
MyuNe Chor, HAROLD s BETTE L. PRESMAN, HOLLIDAY ASSOCIATES,
INC. KAREN TAGGART, GEORGE K. & SHARON D. IGI, JUDY L. MOORE
['paTRICIA HANSON, RICHARD K. RUDY, JAMES & MARGARET K-
SULLIVAN, DENISE B. EVANS, WHITE SAND VENTURES, INC.» ATILLA
(TED) & KAREN L. STMON, BRADLEY BRIXON, TRUSTEE, DOROTHY
MSLLER, SEVERN & GLORIA M. STARZYNSKI, CATHERINE GUIRING,
TRUSTEE, Appellants-Appellants
CITY AND COUNTY OF HONOLULU, Appellee-Appellee
a
No, 25275
APPEALS FROM THE TAX APPEAL COURT
(TAX APPEAL CASE NOS. 00-0084 THROUGH 00-0104, 00-0106,
00-0107, 00-0109, 00-0110, 00-0112 THROUGH 00-0169,
00-0171 THROUGH’ 00-0201, 01-0025, 01-0027 THROUGH
01-0115, 01-0117 THROUGH 01-0141)
NOVEMBER 10, 2005
MooN, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
AION OF THE Cot
fie hold that (1) the separate judgment provision of
pawai'i Rules of Civil Procedure (HRCP) Rule $8 does not apply to
tax appeal cases, (2) pursuant to Rules 3.4(a) and 6.1 of the
nules of the Boards of Review of the City and County of Honolulu,
appellants-Appellants Kenneth and Sophia Alford, et. al.
(collectively Taxpayers) provided sufficient proof that
authorization to sue on behalf of eighty fee unit owners
‘accompanied the “Taxpayers Notice of Real Property Tax Appeal,”
‘***20R PUBLICATION***
SSS
(raxpayers’ Appeal Notice) and (3) Taxpayers have not establish
that the tax appeal court! (the court) erred (a) in directing
that Appellee-Appellee City and County of Honolulu (the city)
promulgate 2 rule pursuant to Hawai'i Revised Statutes (HRS)
chapter 91 regarding classification criteria and reassessment of
the 114 subject properties for tax years 2000 and 2001, 34 of
which were “Leasehold Units” and 80 of which were “Fee Units,”
(b) in not restoring the classification of the disputed units to
an “Apartment” designation, or (c) in impliedly denying a refund
of monies collected pending reassessment. Therefore, the July
23, 2002 order granting in part and denying in part Taxpayers’
motion for summary judgment (order) issued by the court is
affirmed.
I.
This matter involves the real property tax
classifications by the City of condominium units located in the
Waikiki Shoreline Apartments (Waikiki Shoreline) for the 2000 and
2001 tax years.’ Taxpayers are apartment owners of units in the
Waikiki Shoreline. The Waikiki Shoreline is a fifteen-floor,
mixed-use, multi-family dwelling structure located on Waikiki
Beach. Presently, the top fourteen floors are residential
apartments and the bottom floor is commercial space.
* the Honorable Gary M.B. Chang presided over this matter.
one hundred fourteen appeals were filed for the 2000 tax year and
Mere filed for the 2001 tax y
117 appeal
#*+FOR PUBLICATION***
a
Prior to 1962, the State of Hawai'i exercised the 7
property taxing function, and both apartments and hotels were
combined into the same category of “hotel and apartment.” HRS
§ 246-10(a) (e) (1) (1993) (superceded by Revised Ordinances of
Honolulu (ROH) $$ 8-7.1(c) (1) (C) and (D) (2008)). In 1982, the
real property taxing function was transferred to the counties and
separate classifications were created, including one identities
as “Apartment” and another identified as “Hotel and resort." ROH
§5 8-7.1(c) (1) (C) and (D). For the 1982 and 1983 tax years, the
Waikiki Shoreline was classified as “Hotel and resort” in line
with these new categories.
In 1984, the “Hotel and resort” classification was
challenged in an appeal to the board of review of the City and
county of Honolulu (the board of review). In 1985, the parties
reached a settlement agreenent whereby the classification for the
Waikiki Shoreline was changed to “Apartment.”
tn 1993, the Waikiki Shoreline was again classified as
sHotel and resort.” A second tax appeal was filed. Because of
the settlement agreement reached in 1985, the classification was
changed back to “Apartment.”
In December 1994, the Waikiki Shoreline was converted
to a condominium. After this conversion, the City was required,
pursuant to ROH 8-7.1(c) (3) (A) and (B) (1996),? to separately
> Row $6 8-7.2(c) (2) (A) and (B) provide, in relevant part:
when property is subdivided into condominium units, each
(continued. -)
***P0R PUBLICATION***
assess and classify each condominium unit in the Waikiki
Shoreline based upon the unit's actual use.
In 1999, the City conducted an investigation of the
actual use of the units in the Waikiki Shoreline and determined
that there were three rental pools operating in the Waikiki
Shoreline involving (1) Outrigger Hotel and Resorts, (2) Aston
Hotel and Resorts, and (3) Captain Cook and Associates. The
operators of these rental pools provided the City with a Mist of
the units in their rental pools. On this basis, the units were
classified as “Hotel and resort” for the tax year 2000.
Sonetime in December 1999, owners of the classified
units received assessment notices of the reclassification to
“Hotel and resort.” On or about Jamiary 18, 2000, Taxpayers
appealed this classification as related to 114 units to the board
of review, Of these 114 units, 34 were “Leasehold Unite” and 60
were “Fee Units.”
>(. sseontinued)
‘unit and its appertaining common interest:
(A) Shall. be classified upon consideration of the
unit's actual use into one of the generel classes in the
Sane manner as land? and
(B) Shall be deemed 2 parcel and assessed separately
fron other units.
+ tn its answering brief, counsel for the City declared that 34 of
the 114 units were “held in leasehold as of January 16, 2000 with "Wadkikt
Shore, Inc., the leased fee owner, ha(ving) an ounership interest” in these 24
units. The City identified these’ 34 units jehols Unite",
distinguishable fron 80 units that are identified as "Fee Units.” Counsel for
the City declared that the 80 unite "were omed in fee sinple as of January
16, 2000""with "Waikiki Shore, inc. ha{ving] no ounership interest” in these
gnits. In ite reply brief, Taxpayers co not dispute this distinction between
“[eagchold Units” and "Fee Unita.”
‘+#*P0R PUBLICATION*#*
a
In each of these 114 appeals,* the Taxpayers’ appeal
notice was signed by an attorney. The attorney represented the
poard of Directors of the Waikiki Shoreline condominium
association. Two docunents were appended to the notice. ‘The
first, entitled “Authorization” signed by a Richard Elliot,
president of Waikiki Shoreline, Inc., stated in relevant part
that
(oly authority of the Board of Directors of Wetkiki
Shore(linel,, inc.
(2) the dai eb ase Bigelow
Sfearement” te "uote: sBonb", ane ih which Waikike
BSHHINI], nc. nae an ownership interest as the fee
jot, oF fee simple ownership.
‘The lessees of ail Apartments in the Waikiki
Shoretlinel condoninium . . . generally noted on the
taxpayer", are hereby authorized
RS°Eiie appeals cf the real property” tax assessments of all
SSehApartnent unite in the Waikiki Shore{iine] condominium,
hich Reve been classifies fren "Apartment to “Hotel and
Resort”
(Emphasis added.) The second attachment entitled “Consent to
Action Without a Meeting” (consent) was signed by officers‘ of
the Board of Directors of the Waikiki Shoreline condominium
association. The consent stated, in pertinent part, that:
+ om Novenber 20, 2000, Robert 0. Magota, a real property
fied 5 “Cortssicate of Appeal” with the court that certifies the p
£EbtS operty located at Tax Map Hey 2-6-004-012-0045. Four docunents we
reel Bea'es this certificate and include (1) the Taxpayers’ oppeal notice, (2)
sppenshorizations’ (3) a Nconsent £o Action Without a Meeting,” and (4) &
weeckaioa’ by the board of review as to all the disputed units. Based on
These actachtents, it appears that the notice, authorizetion, and consent as
saree aeeacorey at Tax Hep. Key 2-€-004-012-0085 is provided as an example of
scenetts nat were filed a2 to each unit and owner appealing the 2000 tax
jonent Eo the board of review.
«the officers of the Board of Directors of the Waikiki Shoreline
condoniniun iesocistion who signed the consent were President Richard Elliot,
Sener dent June A. Kokolsky, Secretary Louis Crompton, Treasurer David J.
wesc eifector william 2. Dornbush, and Director Thomas M, Mull
6
‘**#FOR PUBLICATION*+#
Pursuant to Article 111 section 16 of the Bylaws of
the Association of Apartment Owners [(R0RO)] of Waikiki
Shore [line], the undersigned, being all of the menbere of
‘Hind’ and direct as follows:
6," fo address the serious problem posed by the
isproper assessments, the i
cally thet plow ft to
se a0ea ter have ths
sath
any settlenent. or aborave any other resolution of the
Dstters sccressed herein. Any Aparsment owner so
sageiind nav. at any tine, upon written notice to the Board
of Directors, tale control of any sopeal fiied on behalf or
Eeapron! rea als Any such
partment owner shail not continue to use Counsel retained
by the President and shall not look to the (ROAO) for
Payment of therr ingividus! legal or other fees and costs:
Subsequent to taking control of the appeal
(Emphasis added.)
On September 1, 2000, the board of review upheld the
classification of “Hotel and resort.” The board of review's
decision identified the disputed units by, inter alia, individual
tax map key numbers and board of review case appeal numbers. On
September 28, 2000, Taxpayers appealed the board of review's
decision to the court.
In December 2000, most of the Taxpayers again received
assessment notices that their units were classified as “Hotel and
resort.” This second group of classifications was appealed
directly to the court. Both appeals were consolidated into one
tax appeal action.
‘*+#FOR PUBLICATION***
ee
u.
on March 8, 2002, Taxpayers moved for summary judgment.
they argued that the City reclassified the Waikiki Shoreline
units from “Apartment” to “Hotel and resort” by using
classification criteria not set forth in an agency rule, thereby
violating the rulemaking requirement of HRS chapter 91, the
hawaii Administrative Procedure Act (HAPA). Taxpayers sought =
judgment vacating the classification of “Hotel and resort,”
restoring the classification to “Apartment,” and refunding all
excess taxes collected under the “Hotel and resort”
classification. on March 22, 2002, the City filed its memorandum
in opposition.
on April 1, 2002, the court conducted a hearing on
maxpayers' motion for summary judgment. The court observed “that
although ROH defines ‘hotel,’ the ordinance does not have a
definition for ‘apartment.’ Tt concluded that a criteria used
for “Hotels and resort” should “have been adopted as a HRS
Chapter 91 rule.” ‘The court declined to order that the
classification be changed to “Apartment,” observing that “the
criteria for that classification [was] nebulous as well.”
on July 23, 2002, the court issued its order
(2) vacating the assessments in the 2000 and 2001 tax appeal
cases, and (2) directing the City (a) to promulgate a rule
regarding the classification criteria used for the Maikiki
Shoreline units and (b) to reassess the disputed units for tax
‘***POR PUBLICATION***
years 2000 and 2001 in accordance with the rule.” On August 19,
2002, Taxpayers filed a notice of appeal from the order.
nr
‘Taxpayers contend that (1) “the City cannot promulgate
a rule... regarding its classification criteria which will
have retroactive effect and allow the City to assess the
apartments in question on the basis of that rule for tax years
2000 and 2001," (2) “the tax appeal court should have restored
the classification of the disputed units to their preexisting
[*Apartment’) classification,” and (3) “the tax appeal court
should have ordered the refund of money collected on the basis of
the improper assessments and should not have permitted the city
to keep [the] funds collected{.)”
In response, the City argues that (1) this court lacks
jurisdiction to consider this appeal because final judgnent was
not filed pursuant to HRCP Rule 58, (2) this court lacks
jurisdiction over certain 2000 tax year appeals because “proper
authorization was not obtained from the owners of the . . . units
at the time the Board appeals were filed,” (3) the court “was
The court's order read as follows
IP IS HERESY ORDERED, ADJUDGED AND DECREED that
Appellants’ Motion in GRANTED in part and DENIED in part a
follows:
1. The Motion ie granted in that the assessments for
tax years 2000 and 200] are vacated as to the Appellants
only. Further, the City shall promulgate rule pursuant to
Chapter 91, Hawaii Revised statutes, regarding its
classification criteria and shell reassess the subject
properties only for tax years 2000 and 2001
2."the motion is denied as to all renaining relief
requested.
*#*FOR PUBLICATION***
a
correct in . . . concluding [as a remedy] that the City . -
promulgate @ rule pursuant to HRS chapter 91 regarding
condominium classification criteria to apply . . - for tax years
2000 and 2001,” under Hawail Prince Hotel Waikiki Cor, vw. Clty &
county of Honolulu, @9 Hawai'i 361, 974 P.24 21 (1999), (4) the
court ‘wes correct in not reclassifying the subject units to
tapartment,'” and (5) the court “was correct in not ordering the
city to refund the monies collected . . . pending reassessment.”
taxpayers contend in their reply brief that Hawais
prince should be overruled or, in the alternative, should be
distinguished from the instant case and that the form of notice
jesued by the City did not comply with the notice requirements of
[ROH § 8-2.1(C)]-
‘Taxpayers request that this court (1) reverse that
portion of the court’s decision which dixects the City to
promulgate a rule regarding its classification criteria and
directs the retroactive application of that rule to the Waikiki
Shoreline units for the 2000 and 2001 tax years, (2) require the
classification of the disputed units be reverted to “Apartnent,”
‘and (3) order the refund of all taxes in excess of those which
would have been collected if the real property had been
classified as “Apartment,” plus interest and earnings on such
excess, where applicable.
wv.
wunlike other appellate matters, in reviewing summary
-10-
**#FOR PUBLICATION***
judgment decisions an appellate court steps into the shoes of the
trial court and applies the same legal standard as the trial
court applied.” Beamer v, Nishiki, 66 Haw. 572, 577, 670 P.2d
1264, 1270 (1983) (quoting Fernandes v. Tenbruggencate, 65 Haw.
226, 228, 649 P.2d 1144, 1147 (2982).
Xt is well settled that, in reviewing the
decision and findings of the Tax Appeal Court, a
Presumption arises favoring its actions which should
hot be overturned without good end sufficient reason.
‘The appeilent has the burden of showing that the
decision of the Tax Appeal Court wes "clearly
-e Tax Aspeal court Cour Ltda, 85 Hawasi 26,
35, S36 Pizd 612, €75_(1957) (quoting
Hphglule s. steiner, 73 Haw, 640, 453, 854 Pred 1302, 1306
(1352) (Citation onitted)). A finding of fact is clearly
erroneous when it is not supported by substantial evidence
Gr "an appellate court is Left with te definite and firm
Conviction that a mistake has been mage.’” da. (quoting Ia
ze Tae Appeal-of Frank My Swan, ? Haw. App 390, (399, 796
P,2a395, 401 (19851)
Conversely, questions of Law are reviewable under the
Fight/wrong standard. Jn re-Waile Sty Court, 25 Hawaii at
33, 936 P.2d at 675. (citing.
swaii, Ines, 79 Hawaii 805; S08, 908 Pree Si, S22
(3338))
Hawaii Prince, 89 Hawai'i at 388, 974 P.2d at 28 (brackets
omitted) .
vy
In connection with its first argument, the city
contends that the separate judgment provision of HRCP Rule 58,
applicable to circuit court civil cases, applies to tax appeal
aA
In response, Taxpayers maintain that the July 23, 2002
order is the order that finally decided the underlying tax appeal
cases and that it constitutes the “decision of the tax appeal
-1-
*FOR PUBLICATION***
a
court” that is appealable under HRS $ 232-19 (1993). We believe
courte of the Sete." ARGE Role 58 seguires that *Telvery
sudsnent shel be ast forth on separate dooment."
venbisa v cadee Schutze flepina & Mish, 76 Hat's 138, 12,
peo 2a 1394, 198 (2894), HRCE Aude T states that the HRP
(1999), that statate pronides that
Seated meee te eh, BP tte beet
by ois ¢ 609-2. Rather, porevant bo HRS § 252-11 (1993)," the
+ Rs § 232-11, entitled “Court of record; general duties, powers,
seal” states, in relevant part, that
(t)ne tax appeal court shall hear and determine appeals as
[ideiscd sn? tins) “section 232-16 of 232-27. Te shall be 2
Pere of recora; have juriediction throughout the State with
Seopect to matters within ite jurisdiction: and shali have
TeePoSher and suenority in the manner provides in (HRS)
Secelon 252-13, te decide all questions of fact and all
Glestions of 6m, ineluding constitutional question
eeeieG sn any such matters, without the intervention of =
per.
n12-
+#*P0R PUBLICATION***
and determine, without a jury, appeals from tax assessments or
from decisions on such assessments made by the state boards of
review. The appeals are heard by a circuit judge of the first
circuit by assignnent of the first circuit court administrative
judge. HRS § 232-8 (1993), The tax appeal judge has “all the
powers and authority of a circuit court” in carrying out the
duties and functions of the court. HRS § 232-12 (1993).
Hearings before the court are hearings de novo to determine all
questions of fact and law, including constitutional questions,
involved in the appeal. HRS § 232-13 (1993).
The decision rendered by the court is appealable to
this court under HRS § 232-19. This provision states, in
relevant part, that
taxpayer or county aggrieved or the assessor may
appeal to the suprene court from
abbeal court by filing a written n
fax appeal court and depositing thi
sppeal within
‘The appeal shall be considered and treated for ail parpose:
‘a general appeal and shall being up for determination ail
and all questions of law, including
‘Questions, snvolved in the appeal:
ice of appeal with the
‘euith the costs of
(Emphases added.) See also Tax Appeal Court Rule 2 (2002) (“An
appeal to the Supreme Court and the Intermediate Court of Appeals
from any decision of the Tax Appeal Court in these actions must
be filed within thirty days after the filing of such deciaion.”),
Hence, the court is, by virtue of HRS § 232-11, separate and
distinct from the circuit court, although presided over by a
circuit court judge. Cf. In ze Campbell, 34 Haw. 10, 11 (1936)
(stating that the land court established under then-HRS § 5000 is
“13.
‘+#4F0R PUBLICATION***
—
‘a tribunal separate and distinct from the circuit court even
though a circuit judge sits by designation as a judge of the land
court).
Second, HRCP Rule 81(b) states that the “{Rules of
civil Procedure] shall apply to the following proceedings except
0! nd to the extent that are inconsistent with
cific statutes of the State or rules of court relating to such
proceeding (8) Actions for the collection of taxes{.]”
(emphasis added.) In contrast to HRCP Rule $8, the Tax Appeal
court Rules contain no provision requiring the court to enter @
sjudgnent” in a tax appeal. Rather, Tex Appeal Court Rule 29
(2002) provides, in pertinent part, that “[iln procedural matters
. ea} court! rules,
the he extent applic
by the Rules of the Circuit Courts of the State of Hawai"
[(RCCH) 1, and the IHRCP1.” (Emphases added.) Thus, Tax Appeal
court Rule 23 does not require the court to apply a separate
judgment rule in a tax appeal case. On the other hand, HRS
§ 232-19 specifically authorizes an appeal “from the decision of
the tax appeal court.”
he purpose of the separate judgment provision of HRCP
Rule 56 is to implement the finality rule of HRS § 641-1(a)
(1993), which authorizes appeals from “final judgments, orders,
or decrees” in circuit court civil cases. Jenkins, 76 Hawai'i at
118, 869 P.2d at 1337 ("We aze mindful, however, that we may hear
a4
+#*P0R PUBLICATION*++
appeals from only final judgments, orders, or decrees except as
otherwise provided by law. HRS § 641-1(a)."). “The separate
judgment rule [of HRCP Rule $8] is designed to simplify and make
certain the matter of appealability” and “[iJts sole purpose is
to determine when the time for appeal commences.” Id.
By contrast, in tax appeal cases, an appeal to this
court is taken from “the decision of the tax appeal court.” HRS
§ 232-19. “Decision” is not defined by the statutes or rules
governing tax appeals. However, consistent with the general rule
of finality governing appeals, the appealable “decision of the
tax appeal court,” HRS § 232-19, should be the decision that
finally decides all issues in the tax appeal.
B.
We concur with the reasoning of the Intermediate Court
of Appeals (ICA) in Lewis v, Kawafuchi, 108 Hawaii 69, 116 P.3¢
711 (2005). Tn Lewis, the taxpayer appealed from an “Order
Granting in Part and Denying in Part Director of Taxation, state
of Hawaii's Motion to Dismiss and for Rule 11 Sanctions Filed on
October 6 2003" and the “Order Denying Taxpayer/Appellant Donald
A. Lewis’ Supplemental Motion and Nemo filed on November 14,
2003.” Id. at 70, 116 P.3d at 712. The taxpayer opined that he
was conducting business within the sovereign territory of the
Kingdom of Hawaii and thus was not earning income within the
boundaries of the State of Hawaii. Id
n15-
#**FOR PUBLICATION*#*
ee
The Department of Taxation assessed the taxpayer incon
tax, penalty, and interest for the 1996 tax year, Id. at 71, 116
p.3d at 713. The taxpayer challenged the assessment before the
board of review, maintaining that he had not earned income within
the State of Haxai'i and arguing that O'ahu was not within the
boundaries of the State. Id, The board of review rejected the
taxpayer's claims and he appealed to the court. Id, The
pixector of Taxation moved to dismiss the taxpayer’s appeal and
for HRCP Rule 11 sanctions. Id, The court dismissed the
taxpayer's appeal but denied the request for sanctions. Id. at
42, 116 F.3d 714, Separate judgments were not filed after the
aforenentioned orders. Id.
‘the ICA conducted an analysis of HRCP Rule 58, Jenkins,
uns § 232-11, and HRS § 232-19 substantially similar to ours.
Jus at 72-73, 116 P.3d at 714-15. Insofar as the analysis of the
Ick corresponds to ours, we agree with its reasoning. As the ICA
stated, “[ulader the plain language of the statutes and rules
governing (Tax Appeal Court (TAC)] appeals then, no separate
judgment is required and appeals must be noted within 30 days of
a TAC decision.” Ida at 73, 116 P.3d at 715. The ICA then held
that a separate judgment was not required as a prerequisite to an
appeal and jurisdiction was proper. Id, at 74, 116 P.3d at 726.
the City cites to Rhoads v. Okamura, 98 Hawai'i 407, 49
p.ad 373 (2002), for the proposition that a final judgment be
entered before an appeal from the court may be heard by this
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‘**#P0R PUBLICATION***
OO
court. In that case, this court analyzed RCCH Rule 23 with
reference to the separate judgment provision in HRCP Rule 58. In
Bhoads, the taxpayer appealed to the court from an assessment of
state income taxes. Id, at 409, 49 P.3d at 375. The court
decided the appeal by summary judgment and entered: (1) a
June 21, 2002 order granting summary judgment in favor of the tax
director that affirmed the income tax assessment against the
taxpayer, and (2) an August 8, 2001 judgment on the June 21, 2001
order that entered judoment in favor of the tax director and
against the taxpayer. Ide
‘The taxpayer appealed the judgment to this court and
argued, inter alia, that the August 8, 2001 judgment was invalid
because it was submitted by the tax director to the court more
than ten days after entry of the June 21, 2001 summary judgment
order, in violation of RCCH Rule 23.* Id, at 410, 49 P.3d at
376. This court rejected the taxpayer’s argument by adopting the
tax director’s position that:
Roch Rule 23 is @ procedural provision regarding the
separate document requirement of HRCP Rule 58 (“Every
Susment shall be set forth on 2 separate docunent.”} and it
appears to relate solely to the expedition of the court's
Bheiness.. “The separate document provision was copied from
a similar provision of the Federal Rules of Civil Procedure.
fee sole purpose is to determine when the time for appeal
commences.” ienkins v. Cades Schutte Fleming ¢ Wriaht, 76
fiaweii 115, fie, 869 P24 1352, 1337 997) A Late
Susnission of @ proposed Judgment by a party would not,
contravene the purpose behind the separate document
Fequirenent because the time for appeal Would not commence
neil the Judgment is entered,
+ RocH Rule 23 requires # prevailing party to submit a proposed
judgment to the ciroust juage for settlenent within ten days after 2 decision
awarding judgment.
-10-
#**FOR PUBLICATION***
a
Ja. at 410-11, 49 P.3d at 376-77 (emphasis omitted). Although
Rhoads made reference to the separate document rule, it was
concerned with the requirement that a proposed judgment be
submitted to the trial court within ten days of an order granting
sunmary judgnent. The Rhoads court did not mention HRS § 232-19.
Hence, Bhoads is not dispositive.
Similarly, in In-re Cosmo World of Hawaii, Inc, 97
pawai'i 270, 271, 36 P.3d 814, 815 (App. 2001), taxpayers
appealed fron an order granting sunmary judgment to the state
pixector of Taxation, This court dismissed Cosmo World’s firet
appeal “for lack of appellate jurisdiction.” Id. at 275, 36 P34
at 619, After dismissal, “the tax appeal court entered a final
judgment” from which a timely appeal was filed and the ICR
adjudicated the case on its merits. 1d. Cosmo World, however,
is not dispositive inasmuch as, again, this court did not
consider HRS § 232-19 when it dismissed the appeal from the court
because an order granting summary judgment had not been reduced
to a separate judgment, as required by (HRCP] Rule 58. Id
c.
applying HRS § 232-19 and given that the purpose of the
separate judgment is to “make certain the matter of
appealability,” denking, 76 Hawaii at 119, 869 P.2d at 1338,
where the decision of the court finally deciding a tax appeal is
clearly ascertainable, the matter of appealability is not
-18-
‘***P0R PUBLICATION®#*
uncertain, and, thus, entry of a separate judgment on the
decision to “make certain the matter of appealability” would not
serve the purpose of the separate judgment rule. To the extent
Rhoads and Coamo World conflict with this proposition, they are
overruled. In the instant case, there was no uncertainty that
the July 23, 2002 order vacating the challenged tax assessments
and directing the City to take remedial action constituted “the
decision of the tax appeal court” that finally decided the
subject tax appeal cases. Consequently, the July 23, 2002 order
was appealable to this court by notice of appeal filed within
thirty days after the order was filed and the August 19, 2002
notice of appeal is a timely appeal of the July 23, 2002 order.
vi.
As to the second issue of jurisdiction raised by the
City, we conclude that proper authorization for their attorneys
to file appeals with the review board was tendered by the
‘Taxpayers.
AL
‘The City maintains that the appeals of the 60 fee units
for the 2000 tax year must be dismissed because the
authorizations attached to these appeals were signed by the Board
of Directors of the AORO, and not by the taxpayer, owner, or a
person under contractual obligation to pay the assessed tax as
© The parties appear not to have raised this issue in the court.
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—
required by ROH §§ @-12.1 (1996)" and 8-12.2 (1998)"" and Rules
6.1 (1998)! and 6.3 (1998) of the Rules of the Boards of Review
of the City and County of Honolulu. Thus, according to the City,
the Board of Directors “does not have standing to authorize a
representative to bring appeals on behalf of the owners of (flee
{ujnits.” ‘The City “acknowledges that HRS [§] 5148-93 ((1993)"")
ss ROH $ €-12.1 provides, in relevant part that
‘any taxaver or omnex who may deen himself or herself
any ampsver th gssesenent aade by the director. - Bay
Yo the board of review or
apeegl tres titctort pursuant to HRS Section 232-16 on oF
Before sanuary isth preceding the tax year, as provided in
this areiel
(Bephases added.)
© ROR § 812.2 provides, in relevant part thet
(whenever any person 2 contractual obligatios
yithe person shall have
Bars san setensed tibeal to the beard of review and the tex
reveal court and the Supreme Court, in such person’ s ow
appeal court pe tat were esseesed against such person. The
person against. whom the ‘Ssecssed shall also nave a
Pigne to appear and be he ny auch application oF
appeal
(emphasis added.)
Rule 6.1 state:
‘the notice of appeal shall (a) identity the ai
[Rvolved in the appeal, (b) state the grounds of
Gbjeceion to the sesesanent, and (c) be signed by the
oor hie thorized resreseneative. Proof
iPoRnorisation to represent taxpayer must be
Submitted with the appeal.
(Emphasis added.
«pute 6.9 states that “{£]ailure to comply with the provisions of
G1, and 6.2 "58 this Rule shall be grounds for dismission of the sppeal.”
ss ns § 5148-99 provides, in pertinent part, that
Iw)ithout Liniting the rights of any epartment owner,
Banager oF of
Teont ined.
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provides that actions may be brought by a board of directors with
respect to any cause of action relating to more than one
apartment.”
However, the City rejects this statutory directive on
the ground that “county law prevails . . . over conflicting state
law" inasmuch as “the language [of HRS § $14A-93) is Limited by
the constitutional grant of real property taxing authority to the
various counties” pursuant to article VIII, section 3 of the
Hawai'l Constitution,”* Weinberg v, City & County of Honolulu, 82
Hawai'i 317, 922 P.2d 371 (1996); Gardens at West Maui Vacation
Club v, County of Maus, 90 Hawai'i 334, 978 P.2d 772 (1999)? and
State ex rel Anzai v. Citv & County of Honolulu, 99 Hawai'i 508,
57 P.3d 433 (2002). The City maintains that pursuant to ROH
$§ 8-12.1 and 8-12.2 and Rules 6.1 and 6.3 of the Rules of the
Boards of Review of the City and County of Honolulu, “only a
taxpayer has standing to bring an appeal and . . . duly authorize
a representative.”
(continued)
dn elther case
aor ent ewnere, as their
Fespective interests may appear, sith resect to any cause
sLaction relating to, "nore than one apartaent
(Enphases added.)
Article VEIZ, Section 3 states
‘The taxing power shall be reserved to the State, except so
much therect as may be delegated by the legislature to the
political subdivisions, and except that all functions,
Powers and duties relating to the taxation of
Shall be exercised exclusively by the counties,
exception of the county of Kalawao. The legislature 2)
have the power to apportion state revenues among the S
political’ subdivisions
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In response, Taxpayers argue that (1) “[t}here is no
rule of other authority” that (a) “prescetbes any particular form
of ‘proof of authorization’ or execution by any particular
person,” (b) states “that the authorization granted under the
condominium statute or under the condominium by-laws ia somehow
inadequate," or (c) indicates “that counsel's mere assertion of
representation of . . . [Tlaxpayer{s] is not sufficient,” and
(2) “[tyhe City [cannot] impose additional requirements for the
sauthorization’ in the complete absence of the prior proper
promulgation of @ rule” under HRS chapter 91.
he Taxpayers’ appeal notice, which was submitted to
the board of review by the Texpayers, was signed by Roger S-
moseley, Esq. of the law firm Case, Bigelow 4 Lombardi, This
form nay be filed by the “Owner,” “Taxpayer,” or “other.” With
respect to “other,” the form states that “[w]ritten authorszation
to represent taxpayer must accompany this appeal.” (Emphasis in
original.) As previously mentioned, Taxpayers attached to this
form as proof under Rule 6.1, a document entitled “Consent to
ction Without a Meeting” (consent form) indicating that “the
president of the [AOAO], Richard Elliot, is authorized and
directed, pursuant to [HRS] Section 514A-93, to file appeals
| to retain counsel, specifically the firm of Case Bigelow &
Lombardi . . . to represent the owners of the individual
apartments affected . . . [with] the complete authority to direct
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the appeals.” The consent form, purported to be written pursuant
to Article ITI Section 16 of the Bylaws of the AOAO of Waikiki
Shoreline, specifically addressed “the serious problem posed by
the improper assessments” for the tax year 2000 - 2001. Any
apartment owner was permitted at any time to take his or her own
appeal. On its face this consent form was signed by officers and
directors of the AOAO, was to be filed with the minutes of the
Board of Directors of the AOAO, and contained a provision that it
was to be mailed to each individual apartment owner.
Rule 6.1 states in relevant part, that “[t]he notice of
appeal shall . . . (c) be signed by the taxpayer or his duly
aut! representative.” (Emphasis added.) The
“authorization” document signed by the President of the AOAO
designated the law firm to file appeals. The “consent” document
extended to the President the power to give such authorization on
behalf of the individual apartment owners. Given its ordinary
meaning, “authorization” is defined as “the act of authorizing”
and “authorize” as “to endorse, empower, justify, or permit by or
as if by some recognized or proper authority.” Webster's Third
Mew Int’ Dictionary 146 (1961). The documents attached to the
‘Taxpayers’ appeal notice plainly purported to “empower [and]
permit” counsel to represent the Taxpayers." Nothing more
specific is set forth in Rule 6.1(c) as to the nature or quantun
We note also that under Rule 3.4(a) (1987) of the Rules of the
Boards of Review of the City and County of Honoluls, “attorneys at sw duly
Gualifsed and entitled to practice before the Supreme Court af the State of
Hawaii” cen appear before the board ins representative capacity.
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of proof of authorization required. In view of the attached
docunents, it would appear self evident that the signature and
designation of the attorney on the face of the notice of appeal
would suffice to satisfy Rule 6.1(c)-
he board of review apparently construed the provision
in this way since it did not reject the notice for “lack of
authorization.” We observe, also, that the City failed to rai
any objection to the authorization presented in its memorandum in
opposition. In view of the foregoing, the Taxpayers’ appeal
notice satisfied Rule 6.1 of the Rules of the Boards of Review of
the City and County of Honolulu."
vit.
AL
there being jurisdiction herein, we consider Taxpayers’
tiret argument that the City cannot promulgate a rule pursuant to
yrs § 91-1(4) (1993) and ROH $ 1-2.2(g) (1998) which will have
retroactive effect via reassessment of the subject properties.
he subpoints to this argument, Taxpayers (1) urge this court in
their reply brief to overrule Haxaii Prince or, in the
alternative, to distinguish it from the instant case, (2) argue
that HRS § 91-1(4) does not allow for the retroactive application
Mtn Light of this disposition we do not consider Texpayers’
argument thatthe Bylaws of the AORO provide contractual authorization to tile
argument chat iG, we observe that the Bylaws were not a part of the record of
the moticesg ginal Roles of Appellate Procedure (NRAP) Rule 20 (s
appeal: Saf Mornay be nade a part of the record on appesl).. References and
forth item Srebart ef the record on appeal cannot be considered. This 18 8
appendices 10 Ee jo and ssucn a practice cannot be tolerated.” Grea v. City
TeMaESS oe nonolulu, 58 Haw. 37, 39, 514 P.2d 859, 860 (2973)
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of a rule and that ROH § 1-2.1(g) creates a presumption that
rules are not retroactive, (3) cite Tax Appeal of County of Maui
Ma KM Hawaii Inc., 61 Hawaii 248, 915 P.2d 1349 (1996), which
allows for a refund, and (4) contend that the promulgation of =
retroactive rule creates a “catch 22” that results in an equal
protection violation. In response, the City argues that the
court “was correct in. . . concluding [as a remedy] that the
city . . . promulgate a rule pursuant to HRS chapter 91 regarding
condominium classification criteria to apply . . . for tax years
2000 and 2001,” under Hawaii Prince.
2
to deternine the deduction for inparted value [as related to a
goiz covese tax desesimene] vss cleeciy i ‘rile’ within she
aesning of HRS § S1-1(4).° 09 Hawas't at 292, 974 P.24 at 92,
imparted value.” Ii, at 369, 974 P.2d at 23, ‘The taxpayer
sprcpereten MAS SoU datertneg te cence of foperted velee tyteg cnet
party rauations avo their prosniey foe gole, curse, The, yuation
fo the Surrounding properties on # doller-for-dellar basis.” await Prince,
89 await ot 391, 974 P.2d at i.
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i
guidelines were promulgated to determine imparted value in 1985.
In
the City appraiser testified, however, that he
discontinued using the guidelines in 1994 because, due to adverse
court rulings, the guidelines caused him “too much heartache and
too much problems.” Id. He testified, however, that he retained
the guidelines “in his head.” Id. No written rules or
guidelines were used to determine imparted value after 1994. Id.
his court reviewed the credits given to various golf courses and
could not determine any coherent method for determining imparted
value. Ida at 391-92, 974 P.2d at 31-32. The City’s procedure
thus was seen as “result [ing] in a lack of uniformity and
Inequality in golf course assessments.” Id. at 392, 974 P.2d at
32.
it was concluded that the City appraiser’s unwritten
methodology for determining deductions for imparted value fell
within the definition of a rule for purposes of HRS § 91-1(4)-
Ids at 393, 974 P.2d at 33, The City was directed to follow
rulemaking procedures set forth in HRS § 91-3 before applying
imparted value deductions to golf course assessments. The City’s
total assessment of the golf course was therefore vacated and
this court “order[ed] the City to reassess the taxpayer's
property after it promulgates a rule establishing a methodology
for imparted value, pursuant to the rulemaking procedures in the
[RAPA], HRS § 91-3 (1993). Id. at 363, 974 P.2d at 23 (emphasis
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added). Thus, Hawail Prince itself is an example of this court
specifically ordering the promulgation of a rule under chapter 91
and its retroactive application.
We decline Taxpayers’ invitation to overrule Hawaii
Bxince. Further, the entirety of Taxpayers’ argument that Hawai
Brince should be overruled is as follows:
Taxpayers believe that the (court, in all probability,
specified an inproper renedy in Hawai{ Prince[, aural.
years to be no indication of the Court! =
fon of the implications of the specific provisions
of Chapter 91, and/or potential violations of the equal
protection provisions o£ the U.S. Constitution, by the
application of the remedy chosen in that case.” Taxpayers!
position is that, if applied in the present case ac the City
lorges, the retroactive rulenaking remedy expressed in Hawai
Exinca, (auptal, should not be followed and should be
expressly overruled.
This argument does not contain any reasoning, supported by
citations to case law other than Hawaii Prince or other
authority, to constitute a discernible argument. Taxpayers
provide no argument as to why chapter 91 or the Equal Protection
Clause would lead to a different result, nor do they point to any
error in the reasoning of Hawaii Prince.” Accordingly, we are
not persuaded by this contention. See Wisconsin v. Pettit, 492
N.W.2d 633, 642 (Wis. Ct. App. 1992) (stating that the appellate
court “cannot serve as both advocate and judge”). Thus, we do
not overrule Hawaii Prince.
® this court did not consider any equal protection issue in Haxaid,
‘Exinca.
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ee
As we understand Taxpayers’ argument for distinguishing
Hawaii Prince from the instant case, they argue that in Havall
prince, the classification provisions had not been previously
applied to the golf course, whereas here, the classification
provisions had been applied prior to the reclassification
raxpayers seem to argue that in Hawaii Prince a retroactive rule
was required to avoid a continuing discrepancy between HPGC and
other similarly situated golf courses. According to Taxpayers, @
retroactive rule is unnecessary in the instant case because the
previous classification can be reverted back to and the status
quo ante maintained.
But Taxpayers have provided no authority for
distinguishing Hawaii Prince from the instant case. Taxpayers
assume that the prior classification of “Apartment” should be
reverted back to, despite the fact that the court found that the
classification criteria used for determining whether a unit is an
wapartment” was “nebulous.” Accordingly, we are not convinced
the instant case should be distinguished from Hawaii Prince.
c.
1.
With respect to Taxpayers’ subpoint 2, ROH § 1-2.1(¢
states in relevant part that “(no ordinance, resolution, o:
rules and regulations has any retrospective operation, unless
otherwise expressed or obviously intended.” (Emphasis added.
The plain language of ROH § 1-2.1(g) makes it clear that rules
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can be applied retrospectively if that intent is “otherwise
expressed or obviously Intended.” We therefor reject Taxpayers’
assertion that under ROH § 1-2.1(g), @ rule can only have a
future effect and cannot have a retroactive application. “When
interpreting @ municipal ordinance, we apply the same rules of
construction that we apply to statutes.” Weinberg, 62 Hawaii at
322, 922 P.2d at 376 (quoting Bishop Square Assoc. v. City &
County of Honolulu, 76 Hawai'i 232, 234, 873 P.2d 770, 772 (1994)
(quoting Waikiki Resort Hotel v. City & County of Honolulu, 63
Haw. 222, 239, 624 P.2d 1353, 1365 (1981)). “The purpose of the
ordinance may be obtained primarily from the language of the
ordinance itself[.]” Id, The ROH grants power to promulgate
rules that are retroactive. Insofar as the court’s order may
require a rule to be retroactive, the ROH authorizes such a rule.
2.
le perceive no apparent conflict with HRS chapter 91.
HRS § 91-1(4) defines a rule as an “agency statement of general
or particular applicability and future effect that implements,
interprets or prescribes law or policy.” The definition of a
the definition of “rule” in HRS § S1-1(4) was taken from
subsection 1(2) of the Revised Model Act. Hse. Stand. com. Rep. No. 8 in 1961
House Journal, at 656, The final definition of “rule” adopted in the Model
State Auminiateative Procedire Act (1961) read as follows?
vimjule* means each agency statement of aeneral
Bepglicy, of ceseribes the ofganizaticn, procedure, oF
practice requirenents of any agency. The term includes the
Gnendnent of repeal of a prior rule, but does not include
ta) stetenente concerning only the internal managenent of an
agency. and not affecting private rights or procedures
available to the public, er (8) deciaratory rulings issued
(continued...)
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ee
wrule” in the Federal Administrative Procedure Act (the Federal
APA) contains language similar to HRS § 91-1(4). Tt provides at
5 U.S.C, § $51(4) that a rule is
tthe whole or a part of an agency statenent of general oF
Ebieclouiar applicability and {ature effect designed to
Paplesent, interpret, oF prescribe lew oF policy oF
Gascribing the organizstion, procedure, or practice
SeSulrencts of en agency and includes the approval or
Eedicripticn for the future of rates, wages, corporate or
Ginancial structures or reorganizations thereof, price:
finiietles, appliances, services or allowances therefor’ or
EP aiuationss costs, or accounting, or practices bearing on
any of the foregoing.
(emphasis added.) Hence both the Federal APA and HRS § 91-1(4)
refer to an “agency statenent of general or particular
applicability and future effect” that implements, interprets or
prescribes “law or policy.”
‘The United States Supreme Court discussed the
retroactive application of rules in Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204 (1988). At issue was whether or not the
secretary of Health and Human Services could use the rulemaking
authority granted by Congress to promulgate retroactive
regulations setting limits on the levels of Medicare costs that
would be reimbursed. Id, at 206. Although finding that the
secretary did not have authority to promulgate retroactive cost~
Limit rvles, dd. at 215, the Court did not foreclose the
retroactive application of a rule, id, at 208. It stated:
*(,- continued)
Tporsuant to Section @, or (C) intra-agency menorenda.
= fe Acts (anended 1981), 15 U.L.A. 185 (waster ed.
Be00) (emphasis edged)
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Retroactivity ie not favored in the law. Thue,
Congressional enactnents and adainistrative rules will not.
be construed to have retroactive effect unless their
Language requires this result. By the sane principle, «
‘statutory orant of legislative rulemaking authority will
ot, as a general matter, be understood to encompass the
power to promulgate retroactive rules
Substantial justification for retroactive rulemaking 12
Presented, courte should be reluctant to find euch authority.
absent an'express statutory arent.
Id, at 208-09 (emphases added) (internal citations omitted).
Thus, despite the plain language of U.S.C. § $51(4), the Court
determined that a “rule” may have retroactive effect if it
contains language to that effect. In promulgating ROH § 1-
2.1(g), the City, Like Congress, expressly conveyed the power to
adopt retroactive rules in express terms. Thus, a rule
promulgated pursuant to ROH § 1-2.1(9) can be applied
retroactively if its language so requires.
This court discussed the validity of retroactive tax
legislation in Gardens at West Maui. In Gardens at West Maui,
the taxpayer, who vas an owner of a time share interest,
challenged the retroactive application of @ county ordinance that
changed the taxpayer’s real property classification from
“apartment” to “Hotel Resort,” thus subjecting the taxpayer to
higher tax rate. 90 Hawai'i at 337, 978 P.2d at 775. This court
stated:
The validity of retroactive tax legislation under the
due process clause depends on whether, in light of tne
ature of the tax and the circumstances in which it is laid,
the law is so harsh and oppressive as to tranagress the
constitutional limitation... . In United stares y
Garlton, (512 v.3. 26 (1994),j the United States Suprene
Court set forth two primary factors to be considered when
Setermining whether retroactive taxation violates the due
JSe. First, the court oske shether the
's purpose in enacting the legislation was
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jilegitinate or arbitrary. Second, the court
sate tee iegislature acted promptly and established only
winodest period of retroactivity.
as at 344, 978 F.2d at 782 (internal quotation marks and
citations omitted). This court then applied the test fron
carlton and found that retroactive application of the ordinance
gid not infringe upon the taxpayer's due process rights." Id
at 345, 978 P.2d at 783. As the proposed rule referenced in the
instant case is not before us, such an analysis would be
premature. However, Gardens at West Maui and Carlton make it
evident that a tax may be applied retroactively without violating
due process.
D,
tn subpoint 3, Taxpayers refer to KM Hawaii. In KM
Hawaii, the County of Maui appealed from a court judgment
regarding real property tax assessments against KM Hawaii Inc.
9 Hawai'i at 249, 915 P.2d at 1350. The subject property was
the Hyatt Regency Maui. id, at 250, 915 P.2d at 1351, The
county assessor testified that the County used the Cost
———_——_
in United States vy, Carlton, 512 U.S, 26, 27 (1994), the Court,
hold that the seBHSEGHte appiication of an amendrent to a provision of the
held thee ente eax starute, 26 U.S.C. § 2057, Limiting the deduction for the
feces eer soles of stock to employee stock-omership plans, did not violate
proceeds of ees Clause of the Fifth Anendnent. The Court noted that
ne ove reef legisiation had repeatedly Deen upheld against due process
Ferenc eee “Eds at 30. The Court then applied # tworprong test to determing
challenges: ids thcess Clouse was violated. Id, at 32, Firat, it concluded
whether treso’a purpese in enacting the amendment to the statute was neither
SEES Cengsee ‘or groitrary. id. Second, "ene Court concluded that the
ALlegitiness oGniy a modest period of retroactivity and that Congress had
fiteg quickly in enacting it. Id. at 32.
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Approach” for “mom and pop-type hotels” and “brand new” resort
hotels, but the Market Data Approach to assess properties like
the Hyatt, which was classified as 2 “Class A” resort hotel. Id.
at 251, 915 P.2d at 1352. The Tax Appeal Court found that the
County's assessments were not uniform and equal and were in
violation of HRS chapter 232 and the equal protection clauses of
both the federal and Hawaii Constitutions. Id. at 252, 915 P.2d
at 1353. These finding were not challenged on appeal. Id, This
court then listed three potential remedies to address the
discriminatory tax, stating that,
2 taxing authority “found to have isposed an impermissibly
Giscrininatory tax retains flexibility in responding to this
Setermanation.” I Div. of Alea!
‘43e Us, 18, 29 (1990)]. The taxing
authority may correct the inpermissible discrimination 6)
a)
and tis tax that Tt would have oald bad Te been aaseaseq in
Hhesats nether ae others in its clase; (2) retroactively
Seeing, “to the extent conasatent with other
tutional restrictions,” members of the taxpayer’ s
Class in the manner that the taxpayer had been assessed; or
(3) using a conbination of a partial refund to the taxpayer
and 2 partici retroactive assessment of the others within
the taxpayer’s class. Id, at 40-41
Id, at 256-57, 915 P.2d at 1357-58 (footnotes omitted) (emphasis
added). The case was remanded to the Tax Appeal Court with
instructions to allow the county to choose one of the
aforementioned remedies. Id, at 257, 915 P.2d at 1358.
2 the opinion a
jcribed the Cost Approach as follows: “Under the
‘cost approach,’ one determines the cost of constructing the building end
subtracts an anount for depreciation to determine the building's present value
and then adds the value of the underlying land.” of cat Mest
ELM tavals Inc,, 61 Hawai'i 248, 251, 918 F.2d 1543, 1552 T1996)
The Market Data Approach was described ag follows: “Under the
‘market data approach, one surveys the market to determine if there have been
a'sufticient nunber of recent voluntary sales of similar property to provide
Gopendable information a3 to the selling rate of ‘comparable property.’” Ida
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ee
As we understand Taxpayers’ argument, the first KW
Hawai cenedy of a refund should be afforded in the instant case.
put in KM Hawaii, there were clear and established methods for
assessing real property that the county was not applying
uniformly. In the present case, however, there was no rule
promulgated regarding classification for the “Hotel end resort”
category and the classification for “Apartment” was “nebulous.”
accordingly, were such a renedy appropriate, it would be
premature at this point to order it inasmuch as the rule has not
yet been promulgated and an assessment nade.
the Taxpayers’ fourth subpoint is that the use of
retroactive rule will result in a “Catch 22” because,
[ijn short: a new rule ig not a rule if it is applied
Lge S2eivery. “even if the rule could be sppiied
recreacrjuely, it sould have to be required to be applied to
Te'eeSSomin {um apartment in the county involved in any
BUS Ttie) of short-term rental, because the ordinances [ROH
PRLS} require uniformity. The condominium spartments
Soe dawslved in this appeal, [sic] cannot have their
BCheassents changed, so application of a new rule
Setreactively cannot be done uniformly
qo the contrary, as mentioned previousiy, ROH § 1-2.1(g) allows
for the retroactive application of a rule if the rule expressly
indicates that it should so apply or if the intent to apply it
retroactively is obvious. See discussion, supra. ROH § 8-7.1(a)
states in relevant part:
ne director of finance shall cause the fair market value of
INI taxable real property to be determined and annvslly:
SUesaed by the market data and cost approaches to value
Seine apprepriste systenatic methods suitable for mass
DELOgIBETOR properties for texation purposes, s0 selected
Ep ipelied te cbtein, as far-as possible, uniform anc
Gqualised assessnente throughout the county
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(Emphasis added.) This ordinance does not require complete and
exact uniformity as Taxpayers seem to suggest but, rather,
provides that the valuations should be as uniform and equal as
possible. Also, Taxpayers merely suggest that there are other
properties that are similarly situated to the properties in the
instant case without providing any evidence of the existence of
auch properties, and in the absence of specific cases we need not
decide such a question.
vant.
In their reply brief, Taxpayers ask this court to take
judicial notice “that the form of notice sent out by the City did
not comply with the specific and clear notice requirements of
[ROH § 6-2.1(c)]." Taxpayers argue that a change in the
classification of property is not effective unless the City
complies with the requirements therein. This argument was not
raised before the court. “As a general rule, if a party does
not raise an argument at trial, that argument will be deemed to
have been waived on appeal; this rule applies in both criminal
and civil cases.” State v, Moses, 102 Hawaii 449, 456, 77 P.3d
940, 947 (2003); see, e.c., State vs Hoalund, 71 Haw. 147, 150,
785 P.2d 1311, 1313 (1990) (Generally, the failure to properly
raise an issue at the trial level precludes a party from raising
that issue on appeal.”). Accordingly, we do not address this
argument.
% — gaxpayers algo did not raise the issue of proper notice in their
opening Brief:
356
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mx.
In their second argument Taxpayers maintain that “the
tax appeal court should have restored . . . the disputed units to
their preexisting (‘Apartment’) classification.” Taxpayers do
not specify for what period the classification should be changed
to “apartment.” In ordering promulgation of a rule and
reassessment thereunder, the court impliedly rejected Taxpayers’
argument that the classification of Waikiki Shoreline should be
restored to “Apartment.”
Neither party directs this court to any authority
pertaining to this issue other than Haaii Prince. However,
hawaii Prince is not dispositive because that case did not
address restoration of a classification. The parties’ arguments
focus on their views as to how Waikiki Shoreline should be
classified - either as an “apartment” or “hotel and resort."
ie cannot say, based upon the arguments of the parties, that the
court was wrong inasmuch as the court determined the “Apartment”
classification criteria was “nebulous.”
x
raxpayers’ last argument is that “the tax appeal court
should have ordered the refund of money collected on the basis of
the improper assessments and should not have permitted the City
the City reiterates that the court “wes correct in not
reclassifying the subject units to, ‘Apertnent’* because the classification
roclassifving for determining whether a unit is an “apartment” were 2350
geiteria oged for tir suneary judgment menorandun, Taxpayers requested thet
Pagbulouse, Moriel the... former classification os ‘Apartment./* In its
sees. the court denied ail remaining relief requested,
=36-
‘+4#20R PUBLICATION***
SSS
to keep [the] funds collected{.]” The City maintains that the
court “was correct in not ordering the Clty to refund the monies
collected . . . pending reassessment.” In their summary judgment
nesorandum, Taxpayers requested a “refund of . . . taxes... in
excess of those which would have been otherwise collected had the
properties not been inproperly reclassified as ‘Hotel and
resort.’" By its order, the court impliedly rejected Taxpayers’
argument that a refund should be ordered.
The parties have provided only limited argument on this
issue and have referred this court only to ROH § 6-1.7 and to
jlavaii Prince. Again, the entirety of Taxpayers’ argument that a
refund should be ordered is as follows:
Since the Tax Appesl Court did not order the classification
te revert to ita previous status, as Apartment” with the
accompanying lower fate, the Tax Appeal Court coulé not have
Graered the refund of the excessive taxes collected.
However, it is clear that even under the present
Circumstances, the City ie not entitled to Keep the taxes
Collected, ROH Sec, B-1.7 states in parti “The director
Shall coliect ail taxes under thie chapter according to the
Sesesanents se"Gince there is presently no assossnent
for the apartment’ in guestion for the tax years 2000 end
2001, the director of Budget and Fiscal Services has no
Guthority to keep the soney collected. This is problematic,
Since (Taxpayers) actually agree that the director should be
Gneitied to keep the amount attributable to taxation on an
‘Apartaent” classification. The only real solution to this
anomaly 14 to order the epartments returned to “Apartment”
abe refund the balance under established procedures.
ROH § 8-1.7 does not address refunds either explicitly or
impliedly. Although Taxpayers do not specifically argue KM
Hawaii in the portion of their Opening Brief addressing refund,
it appears, as stated supra, that they rely on that case.
However, as noted previously, the renedies set forth in KY Hawaii
were imposed upon a finding that a taxing authority had imposed
-37-
‘**#F0R PUBLICATION***
a
an impermissibly discriminatory tax. No such finding has been
made in the instant case.
the City maintains that Hawaii Prince is dispositive.
In Hawaii Prince, however, the taxpayer did not request a refund
and the court did not order one pending reassessment. 69 Hawaii
at 28-29, 974 P.2d at 33-34. In any event, the parties do not
cite to any law or doctrine compelling such a course.” Hence,
we cannot say that the court was wrong in not ordering a refund.
xr.
Based on the foregoing, we affirm the court's July 23,
2002 order granting in part and denying in part Taxpayers’ motion
for summary judgment.
on the brief:
Roger S. Moseley (Case
Bigelow & Lombardi) for eta Aen ane
appellants-appellants.
susan A. Bender, Deputy Pecetes OM tec enuy ries
Corporation counsel,
City & County of Honolulu,
for appellee-appelle
Yane, Drags th»
> For example, ROH § 6-12.12(a) provides in relevant part that
[1in any case of any appeal to the tax appeal court, $0
percent of the tax paid upon the amount of the assessment
Rctusily in dispute and in excess of that adnitted by the
Cexpayer shall, pending the final determination of the
Seneals be paid by the director into the "litigated claims
SeBSank.n” Tr the’ final determination is in whole or in part
[e’gaver of the appealing taxpayer, the director shell repay
£0 the Eaxpayer out of the account]
-38-
|
3ad7a534-7ccc-42a1-b114-c1c44f6416c3 | Sasaki v. Morisako | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION ***
No. 27210
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
oe
ERNEST J. SASAKI and KATHERINE K. SASAKI, Plaintiffs-Appellees,
vs. 3
GEORGIALYNN MORTSAKO and KEVIN SANTANA, JR., 5
Defendant s-Appellants, 3
and =
STERLING OGATA, Defendant. s
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(ctv. NO, 3RC04=1"0308)
(ey: Makayanns Je for the court!)
Upon review of the statenents supporting and contesting
jurisdiction and the record, ‘t appears that entry of the
Septenber 2, 2004 judgment for danages against defendants
Morisako and Santana did not finally end the Litigation in civil
No. 38¢04-1-0304 inasmuch the plaintiffs! claims against
defendant ogata have not been resolved. The September 2, 2004
Judgnent was not certified as a final Judgnent pursuant to OCRCP
S4(b). Thus, the appeal of the September 2, 2004 judgment 19
premature and we Lack jurisdiction. fae HRS $ 641-1(a)1
Casumpang v, ILWU, Local 142, 91 Hawai'i 425, 427, 984 P.2d 1251,
1253 (1999) (a district court judgment or order ie final and
appealable under HRS § 641-1(a) if it ends the litigation by
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
a3.
az
‘*** NOT FOR PUBLICATION ***
fully deciding the rights and liabilities of all parties and
leaves nothing further to be adjudicated.); Ciesla v. Reddish,
78 Hawai'i 18, 889 P.2d 702 (1995) (a district court summary
possession case is appealable within thirty days after entry of a
judgment for possession and/or after entry of an order finally
determining all claims). Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATE!
Honolulu, Hawai'i, August 31, 2005.
FOR THE COUR
SHER
Prete CO Reacparen Dy
Associate Justice e -
m
|
d4388f91-f588-4d06-9396-4be77473dc0e | Century 21 Liberty Homes v. Reddish | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION **
No. 25887
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
CENTURY 21 LIBERTY HOMES, oy
Plaintiff/Counterclaim Defendant “Appellee, &
1-38 $00d
LINDA A. REDDISH,
Defendant /Counterclaimant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE FIRST cael
(CIV. No. 1RCO1~8542)
aqatd
eek Had
(By: Moony Cade, Levinson, Nakayama, Reobee and Dufty 39.)
Defendant /counterclainant-appellant Linda Reddish
appeals pro se from the District Court of the First Circuit's
Novenber 19, 2002 final order’ (1) decreeing that sunnary
possession was obtained by plaintitt/counterciain defendant
appellee Century 21 Liberty Hones; and (2) dismissing Reddish's
counterciain,
Upon carefully reviewing the record, we hold that this
court does not have jurisdiction to hear the instant appeal
because Reddiah's original March 15, 2002 notice of appeal was
already docketed in this court and dismissed by sunnary
deposition order for lack of jurisdiction. See Century 2
Liberty Hones v. Reddish, No, 25037 (Oct. 29, 2002) (order
dismissing as premature the March 15, 2002 appeal because the
the Honorable David L. Fong presided over this matt
*** NOTFOR PUBLICATION ***
February 14, 2002 judgment from which appeal was taken did not
conclusively determine all claims in the case). Reddish’s second
notice of appeal, filed on June 6, 2003, was untimely because it
was filed more than 30 days after the Novenber 19, 2002 entry of
the final order that did terminate all claims. See Hawai'i Rul
of Appellate Procedure (HRAP) Rule 4(a) (1) (“When a civil app
2
is permitted by law, the notice of appeal shall be filed within
30 days after entry of the judgment or appealable order."). The
failure to file a timely notice of appeal in a civil matter is a
jurisdictional defect that cen neither be waived by the parties
nor disregarded by the appellate court in the exercise of
judicial discretion. Bacon vs Karlin, 68 Haw. 648, 650, 727 P.2d
1127, 1128; HRAP Rule 26(b) (* [No court or judge or justice is
authorized to change the jurisdictional requirenent [of the 30-
day appeal pericd) contained in Rule 4 of [the HRAP]."). Thus,
we lack jurisdiction over this eppeal. Therefore,
17 IS HEREBY ORDERED that the instant appeal is
disnissed for lack of appellate jurisdiction
DATED: Honolulu, Hawai'i, September 1, 2005.
Linda Reddish, yr
defendant /counterclaimant- y :
appellant, pro se Shc Eatso
kevin S28. Chee Races Erdle ja.r7e
(of Chee & Markham),
for plaintiff/counterclaim
defendant-appellee uv
Century 21 Liberty Homes © Dato
|
b14b32f3-e7d2-4d27-96af-346fbbb393b0 | Mikelson v. United Services Automobile Association | hawaii | Hawaii Supreme Court | ‘+*#P0R PUBLICATION*+*
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000:
MATHEW S. MIKELSON, Plaintiff-Appellee
UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appel lant
and
JOHN DOES 1-25; JANE DOES 1-25; DOE CORPORATIONS 1-25;
DOE PARTNERSHIPS 1-25; and DOE GOVERNMENTAL
ENTITIES 1-25, Defendants
wo, 25217
REQUEST FOR ATTORNEYS’ FEES AND COSTS
(CIV. NO. 99-1856)
SEPTEMBER 26, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, JJ.,
AND CIRCUIT JUDGE WONG, ASSIGNED BY’ REASON’ OF VACANCY
OPINION OF THE COURT BY ACOBA, J.
Plaintiff-Appellee Matthew S. Mikelson (Mikelson) filed
@ request for attorneys’ fees and costs pursuant to Hawai't
Revised Statutes (HRS) § 431:10-242 (1993). Defendant-Appellant
United Services Automobile Association (USAA) filed a memorandum
in opposition. On the grounds set forth herein, Mikelson’s
request for fees is denied and his request for costs is granted.
I.
on June 9, 2005, Mikelson filed his request. Mikelson
asserts he is “entitled to reasonable attorney’s fees and costs”
pursuant to HRS § 431:10-242, see infra Part II, and Hawai'i
‘**FOR PUBLICATION*#*
Rules of Appellate Procedure (HRAP) Rule 39 because “this Court
affirmed the trial court's judgnent in (his] favor... ,
ordering USRA to confer benefits promised by the policy.”
Mikelson maintains (1) that “attorney's fees and costs are
mandatory when the insurer erroneously denies coverage and is
ordered to confer benefits” and (2) that he is “entitled to a
lodestar fee.” On June 15, 2005, Mikelson filed an errata
request for fees and costs and an errata memorandum in support of
the request for attorney’s fees and costs under HRS $431:10-242
and HRAP Rule 39. On July 22, 2005, Mikelson filed 2 Supplement
to the request for fees and costs.
on June 22, 2005, USAA filed a memorandum in opposition
to Mikelson’'s request for fees and costs. USAA contends that HRS
$ 431:10-242 is inapplicable because the trial court “never
ordered that [USAA] was ordered ‘to pay’ (underinsured motorist
(IM) } benefits” and “(Mikelson’s} counsel admitted that USAA was
not being ordered to pay benefits.”
USAA''s memorandum in opposition was not timely filed
under HRAP Rule 39(d) (3) (2005) which states that
lolbjections to requests for fees and costs must be filed
with the appellate clerk, with proc of service, within 10
Gays after service on the party against whom the fees and
Geate are to be taxed unless the tine is extended by the
appellate court
USAA was served w:
Mikelson’s request for attorney's fees and
costs on June 9 but did not file its objection until June 22,
more than ten days after the date of service, Although USAA’s
objection was not timely filed, attorneys’ fees cannot be awarded
‘***FOR PUBLICATION®**
to Mikelson because USAA was not ordered to pay benefits under
the insurance policy within the meaning of HRS § 431:10-242.
m.
With respect to an award of attorneys’ fees, “in the
absence of contract or statute @ litigant has no inherent right
to have his attorney's fees paid by his opponent.” Larsen ve
Pacesetter Sve. Inc., 74 Haw. 1, 51, 637 P.2d 1273, 1297 (1992).
Mikelson asserts that he is entitled to an award of attorneys’
fees pursuant to HRS § 431:10-242 which provides in pertinent
part:
linere an insurer has contested ite Iiability under 2 policy
fan is ordered by tne courts to pay benefits under the
policy, the policyholder, the beneficiary under a policy, or
Che person who has acquived rights of the policyholder of
beneficiary under the policy shall be awarded reascnable
attorney's fees and the costs of suit, in addition to the
Benefits under the policy
(Enphasis added.)
USAA argues that HRS § 431:10-242 is inapplicable as
the circuit court of the first circuit (the court) has not
ordered it to “pay benefits." It directs attention to the fact
that the court ordered that Mikelson “is entitled to UIM coverage
under the Policy for injuries and damages resulting from the
January 17, 1999 accident, including but not limited to whatever
UIM payments are determined to be due at arbitration pursuant to
the Policy.” (Emphases added.) USAA thus argues that the court
has not ordered payment of such benefits as the amount is yet to
be determined through arbitration.
‘The Honorable R. Mark Erowning preeided:
‘***FOR PUBLICATION*+*
qr.
The fundamental question with respect to the issue of
awarding attorney's fees is whether USAA has in fact been ordered
to pay benefits within the meaning of HRS § 431:10-242. USAA
urges a literal interpretation of the phrase “ordered to pay
benefits.” In contrast, Mikelson argues that HRS § 431:10-242 is
2 renedial statute and should therefore be construed liberally
such that the court's order entitling Mikelson to UIM coverage
under the policy be equated with an order to pay benefits.
“(T]he starting point for interpreting a statute is the
language of the statute itself.” State v. Moniz, 69 Haw. 370,
374, 742 P.2a 373, 376 (1987) (citations omitted). Furthermore,
“where the language of the law in question is plain and
unambiguous” courts must “give effect to the law according to its
plain and obvious meaning.” Hubbell v. Iseke, 6 Haw. App. 485,
489, 727 P.2d 1131, 1134 (1986) (citations omitted). Since HRS
§ 431:10-242 does not define the phrase “pay benefits” the plain
and obvious meaning of that phrase must be considered. In Ranger
Ins. Co. v. Hinshaw, this court held that the insured was not
entitied to attorney's fees under HRS § 431:10-242 when the
insurance company contested its liability under a policy because
“it was not ordered by the court to pay any benefits thereunder.”
103 Hawai'i 26, 34, 19 P.3d 129, 127 (2003).
Rangsr emphasized the language in HRS § 431:10-242 as
follows: “iiJhere an insurer has contested its liability under @
ed by the cou efits under
icy and
4
‘***FOR PUBLICATION***
policy, the policyholder . . . shall be awarded reasonable
attorney’s fees and costs of the suit.” Id. (emphasis in
original). This court then concluded that HRS § 43
0-242 was
“inapplicable” where the insurer “contested its liability under
the policy” but “was not ordered by the court to pay any benefits
thereunder.” Ide
Similarly, in the instant case, USAA has not been
ordered to pay benefits to Mikelson. The trial court instead
ordered that Mikelson “is entitled to UIM coverage.” It appears
that sufficient attention was devoted to the specific wording of
this order as transcripts of proceedings held on July 13, 2001
show that Mikelson’s counsel, in response to USAA’s objection
regarding Mikelson’s Proposed Findings of Fact and Conclusions of
Law filed on May 15, 2001, agreed to have the court's order read
that Mikelson “is entitled to UIM coverage” rather than “UIM
benefits”? Thus, Mikelson’s counsel, in a letter to the court
dated July 16, 2001, stated that the order should be changed to
read that Mikelson “is entitled to UIM coverage” rather than “UIM
benefits.”
The final order of the court entered on July 16, 2001
did indeed reflect this change, as it acknowledged Mikelson's
Plaintitt's attorney stated
In our findings of fact, conclusions of lax, Your Honor, the
only cbjection that we believe is well taken in [USAA’s)
Writing was chat the order does very end
[wathes Mikeleon] i¢ entitled to One be the
policy.» I'm quite willing £0 say that [Mathew Mikelson)
Te entitied - tochave the (Hatnew mixelson) is
policy, including but net
tes to whatever Benefits, if any, are aerded at
stration pursuant to the policy.
5
‘***FOR PUBLICATION***
SSS
entitlesent to coverage but made no mention of Mikelson being
entitled to the payment of benefits. The fact that the court and
the participants in this case appear to have given due
consideration to the language in the order that entitles Mikelson
to coverage rather than benefits, suggests an intent by the court
to refrain from ordering that benefits be paid to Mikelson, as
such payment issue will be decided via arbitration. Under the
circumstances, Mikelson’s request for attorney’s fees is denied.
Ww.
Wikelson also requested compensation of $61.60 for
copying costs incurred in this appeal. USA did not object te
Mikelson’s request for costs. MRAP Rule 39(a) (2003) states that
“if @ judgment is affirmed or a petition denied, costs shall be
taxed against the appellant or petitioner unless otherwise
ordered.” Given this court's affirmation of the court's
judgnent, Mikelson should be awarded his request for costs
Pursuant to HRAP Rule 39.
HRAP Rule 39(c) (4) defines costs in the appellate court
as including “the cost of printing or otherwise producing
necessary copies of briefs and appendices, provided that copying
costs shall not exceed 20¢ per page.” With respect to the number
of copies required for sutmission, the HRAP states that two
copies of the answering brief must be submitted to the appellate
clerk at the time of filing,? two copies must be served on each
WRAP Rule 32,2(a) provides in relevant part thé
jepening, answering, ang reply Briefs, “[t]ws copies are rel
with respect to
‘es when filing.”
é
‘***FOR PUBLICATION***
party to the appeal (in this case there is one party for a total
of two parties),* and an additional number of copies (usually
three or four) may be directed by the appellate clerk,* for a
total of approximately eight copies. The sum of $61.60 in costs
for seven copies requested by Mikelson should thus be awarded in
full as this sum represents costs authorized under HRAP Rule
39(c) (4) associated with printing the requisite nunber of
answering briefs as directed under HRAP Rules 32.1 and 28.
v.
For the foregoing reasons, Mikelson’s request for
attorney's fees is denied but his request for costs in the amount
of $61.60 from USAA is granted.
Alan Van Eten and Gi
Tred R. Eyerly (Damon Key
Leong Kupchak Hastert) LP Lana
on the request for
plaintiff-appellee.
Terrence M. Revere,
Jacqueline E. Thurston,
and Jason P. Healey
(Notocka Yamamoto &
Revere), in opposition
for defendant-appellant.
< BRAP Rule 28 (a) provides in relevar
conform with Rule
each pa
part that “(a)i] briefs shall
‘and be Secompanied by proof Of service of two copies on
'y £0 the eppeal.”
5 BRAP Rule 32.1(c) provides in relevant part
the appellate clerk may direct’ that a specific nunber of adh
furnished en or before a specified gate.”
Yt [In ali cases,
onal copies be
|
c46d572d-d4a1-43b6-b8e0-ea353bcf7e1e | Kamaka v. Goodsill, Anderson, Quinn & Stifel | hawaii | Hawaii Supreme Court | ‘++ NOT FOR PUBLICATION ***
No. 24577
a2q8
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
KITTY KAMAKA, Plaintitf-Appellee,
GOODSILL, ANDERSON, QUINN & STIFEL, A Law Corporation,
Defendant-Appellant,
and
JOHN DOES 1-10, Defendants.
a
APPEAL FROM THE FIRST CIRCUIT COURT
(CIVIL NO. 97-4007)
01 PEN
(sy: Moon, C.J., Levinson, Nakayama, and Duffy, JJ., and
Intermediate Court of Appeals Judge Fujise, in place of Acoba,
Je, recused)
‘The defendant-appellant Goodsill, Anderson, Quinn &
Stifel, a Law Corporation (hereinafter, “Goodsill”] appeals from
the following collateral orders of the circuit court of the first
(2) the
circuit, the Honorable Virginia L. Crandall presidin:
September 6, 2000 order granting plaintiff-appellee Kitty
Kenaka’'s March 29, 2000 motion for sanctions against Goodsill
(hereinafter, “the September 6, 2000 order granting Kamaka’s
second motion for sanctions”) and (2) the March 9, 2001 order
granting Kamaka’s March 29, 2000 motion for sanctions against
Goodsill with clarification with respect to the Septenber 28,
2000 affidavit of Jared Kawashima pursuant to the September 6,
2000 order granting the June 8, 2000 motion for clarification of
+#% NOT FOR PUBLICATION ***
the May 23, 2000 oral ruling granting Kamaka’s motion for
sanctions [hereinafter, “the March 9, 2001 order granting
Kamaka’s motion for sanctions”).'
* on January 28, 2002, this court entered an order denying Kanaka’s
December 3, 2001 motion to dismiss for lack of appellate Jurisdiction, stating
In relevant pare as. follows
[e}t appears that the order sanctioning [Goodsill] to pay (Kanaka]
59,499-57 is a collaterel order that is appealable as a final order
Under [iawai's Revised Statutes (uks)) § e41-2(a) [(1993)) inasmuch as
the sanction for disobeying the circuit court’s rulings concerning
Slscovery from Larry Song iss matter completely separate fron the
nerits of [Kanaka’s] complaint end the directive to pay the sanction by
Zepteaber 24, 2001 placed (Goodell) in inmediate Jeopardy of being
found in contenpt of court for failure to make payment as directed. See
7 60 Haw. 467, 480, 591 P.2d 1060, 1070 (1979).
Dituissal’ of the appeal ie not warranted on the grounds raised in
‘the motion to dismiss appeal inasmuch ae: (1) the sanction matter,
Sppealed does not concern the propriety of [Goodsill's) assertion of the
Ritorney-client privilege ana the assertion of the privilege is not
Felated co the merits of (Kamaks’a] complaint; (2) the appealability of
ihe sanction order under Garada is based on the immediate enforceability
Sf the sanction through contempt proceedings before entry of Final
Sudguent, ‘not on whether the sanction is punitive or renedial or on
Shether contempt can be avoided; (3) (Goodsill's) appeal is not an
Uppeal of the circuit court's ruling that discovery from Larry Seng 1s
fot barred by the attorney-client privilege and is not an appeal of
Eecovery order involving the attorney-client privilege for which an
Gneediate oppeal 12 diesilowed; and (4) we have recognized, but declined
to follow the rule of the federsl courte disallowing immediate appeals
SE sanctions for discovery abuse; gee Harada(]y 60 Maw(-] at 480 hel,
591 P.20 at 1070 nil. Therefore,
TE 18 HERESY ORDERED that the motion to dlaniss appeal for lack of
jurisdiction is denied,
Et ds noteworthy thet in her answering brief on appeal to this court,
Kanaks "respectfully requests that (this) court reconsider its decision
Eegarding Jurisdiction in light of the fact that the arguments advanced in her
{sjotion co. [d]isnise effectively ask for overruling, modifying, or limiting
Unrada.” fanaka furthermore reiterates the contentions set forth in her
otion to dismiss.
ro F court ture all
ine carcicular case, including culinas made by the sides hinselt.—
fiopev. City and County of Honolulu, 66 Haw. 303, 396, G69 P-zd 157, 162
T1963)
‘taw of the case does not, however, have the inexorable effect of
kat ‘and dose not preclude the court from reconsidering an
Earlier ruling if the court feels that the ruling was probably
Cftonesus and more harm would be done by adhering to the earlier
Fale than from the delay incident to a reconsideration and the
‘continued.
‘**# NOT FOR PUBLICATION ***
on appeal, Goodsill asserts as follows: (1) that “the
[circuit] court . . . abused its discretion when it sanctioned
[Goodsill] because nothing stated by [Goodsill] in its February
16, 2000 Letter can be deemed to have violated Judge Nakatani’ s
February 24, 2000 order”; (2) that “a (Hawai'l Rules of Civil
Procedure (HRCP)] Rule 37 [(2000)?] sanction cannot be based
\(sscontinued)
Possible change in the rule of Law to be applied.
f(g 12-14) p. 2266, nll.
caras SERRE GE law, 375, 382, 408 P.24 732, 779 (1965). In, fact,
Séihas been noted thet, 4 ne
Seats a a ee eee eee eeconere
SSB R is ase th-a.P.2a cir. 1999) (rejecting an argument that @
Judge was bound by law of the case established by his own prior oral
2 moore,
Order) (citing, inter alia, Eerxara & Hantnan vy Alvares, 124 F.34_567,
Ses (aa cir. 1997); Onited states v; Adeabite, 677 F.2d i74, 176 (2d
Cir. 1989))-
v " 8" 2. 2 of Hi, 92 Hawai’
Tir S52 F.28 127, 156 (2000) (enphases added)»
‘Sven that Kanata simply aezerte the same arguments in her answering
brief ss she did in her motion to dismiss, wo do not reconsider our January
36, 2002 crder denying Kamaka’s motion to dismiss for lack of appellate
jetediceions and we viow the claw of the case” doctrine as applying to the
Retsene acters 2d. We therefore disregard Kamaka's jurisdictiona
Brgunents.
RCP Rule 37 provides in relevant part:
(b) Failure to comply with order [compelling discovery].
‘zi Sacrrons wy Count ax Wien Action Ts Prnorea. If @ party oF an
offices, director, of managing agent of a party or a person.
Sesignated under Rule 30(b)(6) oF 31(a) to testify on behalf of a
Safty satis to cbey an order to provide or permit discovery,
Pheldding an crder mage under subdivision (a) of this rule or Rule
35, of if a party fails to obey an order entered under Rule 26(f),
Ene court in'wnich the action is pending may make such orders in
Fegare to the failure ag are just. + +
In Lieu of any’of the foregoing orders or in addition thereto, the
court shall require the party {a:ling to obey the order or the attorney
Savising that party or both co pay the reasonable expenses, including
Seietney's fees, caused by the fellure, unless the court finds that the
fallure wae substantially Justified or that other circumstances make an
award of expenses unjust
+#* NOT FOR PUBLICATION ***
simply on a vague and ambiguous finding that 2 party violated the
sintent and spirit’ of a discovery order”; (3) that, “even if it
were allowable to enter [HRC] Rule 37 Sanctions based on a
party's alleged violation of the ‘intent and spirit’ of a
discovery order, it was an abuse of discretion to sanction
{Goodsill] under the facts of this case,” inasmuch as (a)
Goodsill “cannot be sanctioned for maintaining the position that
it did not waive the attorney-client privilege and that Song's
disclosure of communications was to be made over (Goodsill’s]
objection[,]” (b) Goodsill’s “February 16, 2000 letter affirmed
ite obligation and intent to comply with Judge Nakatani’s
discovery order(,]” and (c) Goodsill’s “statement had nothing to
do with Song’s refusal to testify as to communications he
considered covered by the attorney-client privilege”; and (4)
that the circuit court’s “award of fees and costs incurred by
[Kamaka‘s] attorneys in connection with the July[] 1999
deposition of Larry Song should be vacated because it sanctions
{Goodsill) for conduct that Judge Nakatani specifically found was
not wrongful.”
Kamaka counters as follows: (1) that this court should
“overrule, modify[,) or limit{] Haradal v, Ellis, 60 Haw. 467,
480, 591 P.2d 1060, 1070 (1979),} and dismiss the present
appeal(,]” see supra note 1; (2) that “sanctions may be imposed
for violation of the ‘intent and spirit’ of a court's discovery
order”; and (3) that “the circuit court did not abuse its
discretion in imposing sanctions.”
‘*# NOT FOR PUBLICATION **1
Goodsill replies as follows: (1) that Kamaka “cannot
point to an unequivocal discovery order that was violated by
[Goodsi12’s] February 16, 2000 letter”; (2) that, “contrary to
what (Kamaka] contends, Judge Nakatani did not require [Goodsill
to release its claim to the attorney-client privilege nor did she
order (Goodsill] to ‘direct’ Song to speak” because (a) “Judge
Nakatani expressly rejected (Kanaka’s] request that (Goodsill] be
ordered to ‘direct’ Song to testify[,]” (b) “Judge Nakatani and
Judge Crandall understood that [Goodsill] could not be ordered to
waive the attorney-client privilege[,]” and (c) “Judge Nakatani
never contemplated, much less unequivocally ordered{, Goodsill}
to take a certain position with respect to Song’s testimony in
the event it w ed to do so prior to the actual commencement
of Song's deposition”; (3) that Goodsill’s “February 16, 2000
letter was only written because (Kamaka] required that [Goodsill]
state what it{Js position would be concerning the communications
it considered privileged”; and (4) that “the February 16, 2000
letter did not ‘impede’ Song from testifying[.1”"
For the reasons discussed infra in section III, we
hold: (1) that the circuit court abused its discretion in
entering September 6, 2000 order granting Kamaka’s second motion
for sanctions and (2) that the circuit court abused its
Giscretion in entering the March 9, 2001 order granting Kamaka’s
notion for sanctions, which itself was based upon the September
6, 2000 order. Accordingly, we (1) vacate (a) the September 6,
2000 order granting Kamaka’s second motion for sanctions and (b)
the March 9, 2001 order granting Kamaka’s motion for sanctions
+#* NOT FOR PUBLICATION ***
and (2) remand this matter to the circuit court for further
proceedings consistent with this opinion.
1. BACKGROUND
‘The present matter arises out of the termination of
Kamaka’s employment with Goodsill. On October 1, 1997, Kamaka
filed a complaint against Goodsill alleging, inter alia, that
Goodsill had discriminated against Kamaka in violation of
Hawaii's Family Leave law, Hawai'i Revised Statutes (HRS) Chapter
398. On October 27, 1997, Goodsill filed an answer to Kamaka’s
complaint.
AL on a
on December 23, 1998, after she had filed several
unsatisfied discovery requests, Kamaka filed, inter alia, 2
motion to compel the testimony and production of documents
relating communications by Larry Song, Esq. Song was @ former
partner with Goodsill who was also “retained by (Goodsill] to act
as their attorney in connection with issues involving . .
Kamaka.” On March 5, 1999, the circuit court, the Honorable Gail
C. Nakatani presiding, entered an order “granting item no. 5 (re:
Larry Song) of (Kamaka’s) motion to compel(,]” specifically
ordering, inter alia, “[t]hat (Goodsill] ha(d) not carried its
burden of establishing that the communications between (itself]
and... Song. . . [met] the test for establishing the
attorney-client privilege.” On June 9, 1999, Kamaka noticed
Song's deposition.
on July 6, 1999, Kamaka’s counsel deposed Song in Los
Angeles, California, where Song had resided since his departure
6
*** NOT FOR PUBLICATION ***
from employment with Goodsill. During the deposition, song
stated as follows:
Moreover,
I wag asked to render ay expertise, my legal advice, and ay
counseling to (Goodsili], by and through its key employees,
the managenent conaittes, partners, lofty partners and very
eli respected partners of the firm. I was engaged to act
fe the fire's attorney, the firm being {Goodsiii,) sn
Approximately Septeaber 199, and 1 continuously’ advised
{Goodeil1] a client until’ sometime around Decenber of
1955, Therefore, any inquiries regarding wat was discussed
Goring those mestings that 1 Sttended are protected by the
attorney-client privilege and are absolutely sacred.
Goodsil1’s counsel stated:
[GOODSILL'S COUNSEL:) Just. go the record is clear, it
Ae (Goodaiil’s} position that as of Septenber 21st (, 1998,)
Mr. Song was acting as legal counsel to (Goodsill),’and for
the purpose of providing legal advice to (Goodsil1)
regarding ts. Kanakal. ‘t]herefore, it("]s. (Goodsil2" s)
position that all communications between (Goodsill) and Mr.
Bong during that tine were in our privilege pursuant to
[Rule] $03 of the Hawas["}i (RJules of (E]¥idance [(HRE)].
Daring that tine[,] Mr. Song's role as consultant to the
fizm was separace’and part from his ole as Miss Kamaka’ s
Supervising parsner, which he Began on Novenber 21st of
1985. After November 2ist of "38, Mr. Song served in a dual
capacity, both as consultant to the firm, as Ms. Kanaka’s
Supervising partner, and we will rely upon Mr. Song to,
exercise the attorney-client privilege with respect to
Subsequent communications that are in an appropriate manner.
(Goodsi11) does not... vaive the attorney-client
privilege.
Kamaka’s counsel subsequently engaged Goodsill’s
counsel in the following colloquy:
(HAMAKAS COUNSEL:} Let me just make a statement for
tthe record, and I think we are going to have to go off the
Fecord to call the court. The issue with respect. to the
attorney-client privilege wae thoroughly briefed and decided
By the (circuit) court. in Hawal(]i by a court order that T
had previously given to the parties involved. 1
Understand Mr. Song's position, and 1 understand that?
position he would need to take in view of his purported
Client's positions however, I intend to make a phone call
ind have & conference call not involving Mr- Song
hecessarily of nis counsel, Dut the counsel for [Goodsiil)
in this cage. When we go Off the Fecord, and we are going
£0 be asking for sanctions because our purpose of coming to
line Angeles at this tine was specifically the tine to be
after the court ruling with respect to that privilege issue,
and we would not have made this trip had we known that
he
testified
‘4% NOT FOR PUBLICATION ***
[coodsitl was) going to violate thet court{] order. So I do
{Ste thie satter off the record right now and we willl make
that conference. call.
TGOSDSTLL’S COUNSEL:) Just before I do, let's make
the relord clear we are fot violating any court order, we
are simply not waiving the attorney-client privilege end
ore Sybu say that the matter was choroughty briefed before.
ie'was not thoroughly briefed. There was not a proper
foundation, and the Judge in her ruling said simply at that
point we had not carried the burden of establishing the
Egamunieation between Hr. Song and [Goodsill] meets the
teat.
Mr, Song's testinony now makes it clear that ne was
acting ao consultant to the firm, and the testimony .
[sslocher ss attorney [for Goodsili) since the judge’ s
Follngi] eiso sakes it clear that Mr. Song's role during the
pertinent persed was solely and exclusively as the attorney
For the firm, and although subsequently he . . . went into
the duel capacity after Novenber the 21", even during that
Eine, certainly things thet were told to him in his capacity
be ah attorney ought to be privileged. taw firms . when
they are clients are entitled to be able to rely upon the
Stedeney-client privilege, And all (Goodsili] has done is
Sinply declined fo waive the Ton" ehink
fhe jodge"s ruling to date ha: fies of Mee
Song's Cestinony and without the benefit of the other...
attorneys. [for Goodsill], Aas done anything to require Mr.
Song to testify .
TKRMAKA’S GOUNSEL:) the court order reads as follows:
teen Non 5, to compel testimony relating to communications
Ey'Larcy Song, (Esqe], ie hereby granted. So what the court
Rentioned we will get’ from the juage.
TcooDStLL'S GOUNSEL:)~ Well, Keep in mind that that,
follows the sentence that (Goodsill} has not carried the
[KAMAKR’s COUNSEL:] Well, the judge will decide. So
ett make that call
When the parties returned on the record, however, Song
as follows:
(als was made perfectly clear on the record by [Goodsii1's
Ehnseil, the elients in this case... ha(vel not waived
the sttofney-client privilege. Therefore, have no
Fecourse, given my duty ae an attorney to that firm,
Fegarding eaters that are clearly covered by the attorney
Eilent privilege. I cannot testify as. . . to those
atte
iret. For ns
on November 1, 1999, Goodsill filed a motion for
consideration of the March 5, 1999 order granting Kamaka’s
* NOT FOR PUBLICATION ***
motion to compel. On November 5, 1999, Kamaka filed a memorandum
in opposition to Goodsill’s motion for reconsideration.
on November 9, 1999, Kamaka filed a motion for
sanctions against Goodsill based on Song’s refusal to testify on
certain matters at the July 6, 1999 deposition. Kamaka attached
to her motion the affidavit of her counsel, which stated in
relevant part:
During the deposition, I asked the (circuit
clourt to intervene in che dispute over [Goodsili‘s claim of
Sttorney-client] privilege. The [cireuit cjourt called the
‘and heard arguments regarding Song’s statement and
deill"s] continued assertion of the privilege. The
jously stated on the
re Was no motion oF
Nigpede” ‘the deposition and that Song was to answer all
gucsetong Fegnraing hie Somunisatione wich (Gcodeh31] with
on November 10, 1999, Goodsil1 filed a reply memorandum
in support of its motion for reconsideration of the March 5, 1999
order granting Kamaka’s motion to compel.
on December 6, 1999, Goodsill filed a memorandum in
opposition to Kamaka’s November 9, 1999 motion for sanctions,
arguing, inter alia, that it “had both the right and the
obligation to state on the record that it was not voluntarily
waiving the attorney[-Jclient privilege through Mr. Song’ s
testimony(.1”
on December 14, 1999, the circuit court conducted a
hearing regarding Kamaka’s motion for sanctions. During the
hearing, the circuit court stated as follows:
THE COURT: . . . [I]t does appear to me that to a
great extent that this decision was. . Song's decision
Sfp discussion with his attorney.” So. +. By
incalnation now: ss i@. + €0 4s4ue an Order basically
** NOT FOR PUBLICATION *#*
‘advising (Goodsill) that if there is a redeposition of
Song, which Iwill allow at (Kanaka’ s} discretion and
election, that the position of (Goodsill] is that. . Song
Comply with this court's order
GWAKA"S COUNSEL: T-agree. 1 think that’s an
appropriate order to give to [Geodsill].
After entertaining arguments by both parties, the circuit court
issued the following oral ruling:
‘THE COURT: ALL right. Here's what the court's going
to do. The court will grant the motion as follows.
The court will allow the redeposition of Larry Song
and he court will order Ghat’ (Goodelil"e] 1. obsection
ith respect to the (attorney-client) privilege is preserved
nd the Firm at the Feseposition may only take the position
that Me. Song comply with the court's ruling and order to
fanewer all questions posed to him-
The coure will allow [Kanaka), at (Kamaka‘s] election,
to conduct Mr. Song’ deposition either by phone,
teleconferencing or in person, [or] redepdeition in Los
Angeles.
‘The court believes that . . . good faith arguments
have been sade by (Goossill] in connection with their
actions at the deposition of Me- Song and st does appear
thet to sone extent Mr. Song along with his attorney made
tthe decision about not answering some of the questions, and
so'the fault is not all of [Goodsill’s]. And'so for these
Feasons, in all other respect(s] at this tine the motion
(ill be’ denied and the request for fees and sanctions,
Ronetary sanctions will be denied. However, with the
Sanonition that this deposition mist go forwardi:] Lf the
Court concludes thet, st the] depesition{,) {Goodsill)
fonehow inpedes [Kanaka’s] ability to conclude that
Geposition, then the court will grant leave to (Kanaka) to
Fefile its request for sanctions.
ALL righe.
[KAMAKR’S COUNSEL:} Your Honor, just for a point of
clarification, 1a it correct to say that the court directs
(Goodsil!) to tell Hr. Song thet ne answer?
THE COURT: He’G represented by counsel, T mean,
[Goodsill) is not ME. Song's attorney, right? =. -
[tine position they must take is that their position is that
Mr. Song. comply with the court's order,
THAMAKA’S COUNSEL:)\ And that their claim of privilege
wnich a preserved will not stand in the way of hie
anewering?
HE COURT
tha
correct.
on January 3, 2000, the circuit court entered an order
denying Goodsill’s November 1, 1999 motion for reconsideration of
the March 5, 1999 order granting Kamaka’s motion to compel,
10
ruling as
requested
By letter
‘+## NOT FOR PUBLICATION ***
follows:
‘The [circuit clourt concludes that {Goodsill] did not
exercise die diligence in that [Goodsiil] knew where Mr
‘Song was and never contacted Mr. Song to get the evidence
Tof'the attorney-client privilege) (Goods:11] merely
jueption that Hr, ‘Song would be
fees) however, (Goodsil1] declined his request.
Hae Gong's testimony and/or declaration was available prior
fo the Motion to compel. The [circuit c)ourt concludes that
forte did not amount to due diligence
Sh’any event, the absence of Mr. Song's testimony was
onty one factor, which this [c]ourt considered in reling on
Ghe’uotion to Compel. she {cizeult clourt concludes thet ie
Sia not erroneously rule on the remaining four reasons for
Fejecting Igoedsill’s] arguments in opposition to the Motion
to Compel (-1
‘Sherefore, the motion ie hereby DENIED.
By letter dated February 3, 2000, Song’s counsel
the following of Kamaka’s counsel:
id a wasteful trip and sore importantly to avoié
ing He. gong’s tine and mine, the parties should have
The glgne, if one renains, fully’ worked out before traveling
{ts Los Angeles}, At the very least, we would like the
fosetGectoton position of [eoedsill) which it. intends to
Boke at the next deposition session relative to the issue of
{nformation fer which attorney-client privilege has, to.
Gate, been asserted. A letter from (Goodsill] mill’ suffice.
dated February 10, 2000, Kamaka’s counsel relayed
Song's counsel's request to Goodsill. Goodsill’s counsel
responded
by letter dated February 16, 2000, stating as follows:
‘This letter responds to [Song’s counsel's] letter of
Fepruary 3 and [kanske's counsel's) letter of February 10,
2000 and ateempts to set forth (Goodsill's] position
Zogarding the attorney-client privilege between it and Mr.
Seng
{Goodsii2} has not waived the attorney-client
privilege between st and Me. Song and we believe the
Feireuit clourt understood and acknowledged that no waiver
hes occurred. (Goodaiil] will abide by the (circuit)
Cjeure’s order ang will not take any position to hamper or
prevent Mr- Song ezom complying with the (circuit clourt’ s
Eiger compelling disclosure of information over (Goodsill' =]
Objection. It ia up to Mr. Song and his counsel to decide
the iesue of whether the Hawai (yi (circuit clourt’s Order
Eesches He. Song #8 deponent subpoonsed under California
un
‘** NOT FOR PUBLICATION ***
dew.
on February 24, 2000, the circuit court entered an
order granting in part and denying in part Kanaka’s motion for
sanctions, which provides in relevant part:
The Motion is GRANTED as follows: The motion is based
fon (Kanaka's) aasertion of the attorney-client privilege at
Lazy Song's deposition on July 6, 1999. The
Clout had previously rejected (Goodsiii’ 8)
Such attorney-client privilege; [Goodsill’ s]
been preserved. The (circuit clourt orders thet (Kanaka]
may retake Larry Song's deposition in person, or via
Relephone or teleconference. At such further deposition,
(Soodsii1) aay take only the position that Mr. Song comply
with the court("]e ruling and order to answer all questions
Bored to his.
‘he remainder of the Motion is DENTED.
on February 28, 2000, Song’s counsel sent a letter to
both parties, which asserted in relevant part:
[2m the face of the position set forth by (Goodaiii}
through [its counsel], by letter dated February 16, 2000,
Ehat *(Goodaiii] has Hot waived the attorney-citent
privilege between it and Mr. Songl,]"{) it ie our assessment
Ehat resumption of the deposition would be a waste of time,
money and energy by everyone, In this regard, I note that
[Goodeill's} position chat it has not waived the attorney-
client privilege between itself and Mr- Song() forces Mey
Seng to maintsin and protest sll privileges information, and
precludes Mr, Song from testifying as to matters which are
Protected by the attorney-client privilege. (]
‘The effective result of Mr. Song's obligation to
maintain the client's confidence, absent waiver, i that
There would be very lictle information discoversble through
the deposition of Mr. Song.
From our vantage point, it seems that the parties
should achieve a workable and intelligible resolution
Fegaraing the attorney-client privilege issue in order to
hake resumption of Mr. Song’s deposition meaningful.
Riternatively, ‘the (eizeuit) court. . - will have to speak
fo the issue with greater clarity and specificity.
‘should the parties maintain interest in proceeding
with Mr. Song's deposition, the foregoing notwithstanding,
Please call me for scheduling consideration far in advance.
‘Second Motion For Sanctions And Motion For
Clarification
on March 29, 2000, Kamaka filed a second motion for
sanctions against Goodsill. On May 15, 2000, Goodsill filed a
2
‘+4 NOT FOR PUBLICATION ***
memorandum in opposition to Kamaka’s motion for sanctions. On
May 17, 2000, Kamaka filed a reply memorandum in support of her
motion for sanctions. On May 23, 2000, the circuit court, the
Honorable Virginia Lea Crandall presiding, conducted a hearing
regarding Kamaka’s second motion for sanctions. After
considering arguments by both parties, the circuit court orally
ruled as follows:
TRE COURT: Based on the [circuit clourt's review of
the record, Judge Nakatani has already determined the issue
thet Me. Song 2 to testafy and that (Gosdsill is) to take
ictione with respect to that matter, Judge Nakatani,
id the privilege for purposes of the record But,
Jled, in this [clourt's estimation, that Mr. Song
that transpired with respect to this last
go-round of his deposition raised some concerns for the
feizcult cloure with respect to, if not directly violating
[Sodge Nakatani") Order, going against the intent and
Spirit of her Order by continuing to indicate that. With
Fespect to preserving the privilege, Judge Nakatani has
‘Aiready preserved the privilege. The privilege is
freserved. she ruled there 1s to be no other action other
Phen to allow nim to testify and certainly the letters, T
think, were clearly within che spirit of thet with respect
fo nig testimony.
goat this time the (circuit clourt grants the motion
fas follows with respect to awarding (Kanaka her] fees end
Gosts for bringing this motion and the prior trip to L.A.
The [circuit clourt makes it clear that the privilege is
Preserved and that Hr. song is directed to testify. If
Ehere is 2 question with respect to compelling Mr. ‘Song to
testify in California, what the (circuit court would
Soggest, sf ME. Song and his attorney are amenable to that,
{o°Enat (Goodell) pay for their expenses to fly to
Nawal tli, we conduct the deposition in Hawai("]2, and be
Wocld then be in the jurieaiction of this [clout and the
eiecuit clourt could be available during the course of the
deposition.
on June 8, 2000, Goodsill filed a motion for
clarification of the circuit court’s oral ruling granting
Kamaka’s second motion for sanctions, and alternatively moved for
reconsideration of the order. On July 5, 2000, Kamaka filed a
memorandum in opposition to Goodsill’s motion for clarification.
3
‘48 NOP FOR PUBLICATION ***
on July 13, 2000, the circuit court conducted a hearing regarding
Goodsill’s motion for clarification. On September 6, 2000, the
circuit court entered an order granting Goodsill's motion for
clarification, ruling in relevant part:
1. The [etroust clourt did not impose sanctions on .
[Geodsili"s counsel] personally;
2. This [elourt made no Finding of bed faith on the part
Sf. {osodeiil) ae the hearing on May 23, 2000;
3. Shdge Nakatani": Order of Februsry 26, 2000[] did not
order [Goodsil1} to vaive its attorney-client
privilege with Larey Songer
4, Fhis (eloure, by its ruling on May 23, 2000, did not
Order (Goodsill} to waive its attorney-client
privilege with Larry Song:
5s. he [eteult cjourt imposed sanctions on May 23, 2000,
because (Goodsill’s) statement in its letter of
February 16, 2000, ‘that (Goodaill) has not waived the
attorney-client privilege between it and Mr. Song and
we believe that the (circuit clourt understood and
Eeknowledged that no waiver has occurred(,]” violated
the intent and spir[i]t of Judge Nakstanie Order of
February 24, 2000
6. This (elourt ordere that (Goodsill) comply with Judge
Nakatani's Order of February 24, 2000(,) that [alt
Sach furcher deposition, (Geodsili) may take only the
Position that Mr. Song Comply with the [circuit]
Gourt’s ruling and order to answer all questions posed
fo hinf.J"U)
7. Tanaka] is to submit 2 Declaration or Affidavit
getting forth the attorneys’ fees and costs requested
sanctions and (Goodail!] will have an opportunity
submit a response in writing. The [circuit court
MILI fasue a subsequent order specifying an award
Biter due consideration.
‘That same date, the circuit court entered an order
granting Kamaka’s second motion for sanctions, which provided in
relevant part: “IT IS HEREBY ORDERED that Kamaka’s Motion for
Sanctions against {Goodsill] is hereby granted and (Kamaka] is
awarded fees and costs for bringing the Motion and for the prior
trip to Los Angeles.”
on Septenber 28, 2000, Kamaka filed an affidavit of her
counsel setting forth the attorneys’ fees and costs requested as
4
‘44% NOT FOR PUBLICATION ***
sanctions pursuant to the order granting Goodsill’s notion for
clarification. On October 6, 2000, Goodsill filed a memorandum
in opposition to the affidavit of Kamaka’s counsel. On March 9,
2001, the circuit court entered an order granting Kamaka’s second
motion for sanctions against Goodsill, with clarification with
respect to the affidavit of Kamaka’s counsel, ruling that Kamaka
and costs as sanctions agsinst {Goodsill) as
SI One-helf of attorney time spent preparing for
And attending notion for sanctions ($2,685.75); b) (Kamaka’s
Counsel's] tine spent preparing for ME. Song’ s deposition
from the period of July 2, 1999 through July 26, 1399 (26.3
hours x $215 ~ $€,084,50)7 c) airfare cost for deposition
trip. (9499.20); and a) hotel accommodations $259.92), for =
grand total of $9,499.37
ns For
Tor se
by letter dated April 25, 2001, Goodsill informed
Kamaka that it “decline(d] to pay the amount awarded and expects
to have the sanctions reversed before this matter is finally
resolved." On duly 17, 2001, Kanaka filed a motion to enforce
the sanctions order and for contempt sanctions. On September 6,
2001, Goodsill filed a memorandum in opposition to Kamaka’s
motion to enforce the sanctions order and for contempt sanctions.
on September 11, 2001, Kamaka filed a reply memorandum in support
of her motion to enforce the sanctions order and for contempt
sanctions. On September 14, 2001, the circuit court conducted a
hearing on Kamaka’s motion to enforce the sanctions order and for
contempt sanctions. Following the parties’ respective argunents,
the circuit court orally ruled:
THE COURT: With respect to [Kanaka’s) motion to
‘enforce the sanctions order(], it’s granted. As to the
15
*#* NOT FOR PUBLICATION *#*
Icirowtt clourt orders, (Goodsill) is ordered to pay the sum
Of 85,499.57 within ten days of today's date.
Based on the [circuit clourt’s review of the
correspondence - - . from Mr. Song's attorney, the (circuit
ESoaLt's peter order, ‘which intent was to recognize that the
[erecuit clourt hed not ordered (Goodsill] to waive the
ietofney client privilege, but the [errcuit cloure
Previously ordered that it could not be asserted, but
Epparentiy that wee confusing language for (Song! s cou
So the {circuit clourt would clarify and order that
with respect to the deporition of Me. song, the (circuit
‘cedere that the atrorney[-JeLient privile
Srouit c)ourt directs (Goodsi]2)
fo make the following statement to Mr. Song(:
TeGoadsiil’s} position, pursuant to (the) order of the
[circuit clourt, i that you mst answer all questions to
you by [Kenake’ ¢) counsel.("]
‘me other requests are denied without prejudice,
on September 24, 2001, Goodsill filed a notice of
appeal from (1) the September 14, 2001 oral order granting
Kamaka’'s motion te enforce sanctions and for contempt sanctions,
(2) the Mazch 9, 2001 order granting Kamaka’s second motion for
sanctions against Goodsill, with clarification with respect to
the affidavit of Kamaka’s counsel, (3) the September 6, 2000
order granting Kamaka’s second motion for sanctions, and (4) the
September 6, 2000 order granting Goodsill’s motion for
clarification. Goodsill cited, inter alia, the collateral order
doctrine as allowing for its appeal. See supra note 1. it is
noteworthy that Goodsill’s notice of appeal was premature because
the circuit court had not yet entered a written order
memorializing its September 14, 2001 oral ruling.
on September 25, 2001, Goodsill filed a motion for stay
of execution of the circuit court's September 14, 2001 oral order
granting Kamaka’s motion to enforce
nctions and for contempt
sanctions pending appeal. On October 19, 2001, Kamaka filed a
memorandum in opposition to Goodsill’s motion for stay of
16
‘0s Nor FOR PUBLICATION ***
execution of the circuit court’s oral order. On October 29,
2001, the circuit court conducted a hearing regarding Goodsill's
motion for stay of execution of the circuit court’s oral order.
on November 1, 2001, the circuit court entered an order
granting in part and denying in part Kamaka’s motion to enforce
the sanctions order and for contempt sanctions, ruling in
relevant part:
HP 18 ORDERED that . . . Kanaka’s Motion for Sanctions
to Enforce Sanctions Order and for Contempt Sanctions, filed
Say 17, 2001 Ls] is hereby GRANTED a8 follows:
1} “TGeodaii}) "shall pay (Kamake) the amount of
199,499.37 by September 24, 2001
2) The [eiroult clourt confirms the [elourt*
previous order that (Goodsi11] shall not assert the
Ettorney-client privilege with respect to Me. Larry Song,
ind confirma the order of the (circuit) court to have Me.
Song's depesitson proceed without interference. The
Teiroust clourt orders that [Goodsill] may not assert any
auch privilege, thst. (Goodsill) may only take the following
position, and which (Goodsiil} shall state to Mr. Song:
‘Sfgcodsill's) position, parsuant to (the) order of the
[circuit clourt, 12 that you gust answer all questions posed
to you by [Kanaka‘s} counsel.”
3), Other requeste
without prejudice
on Novenber 8, 2001, the circuit court entered an order
(ctlons are denied at this tine,
granting Goodsill’s motion for stay of execution of the circuit
court’s September 14, 2001 oral order, ruling as follows:
IT 1S HEREBY ORDERED that (Goodsill's) motion is
GRANTED a8 follow
(a), This. [e]ourt’s September 14, 2001 order
directing (Goodsill] te pay $8,499.37 within ten days of
that date (the “Order*) {a hereby stayed pending resolution
bf [Goadsill’s} appeal of said Orders
(2). This stay 9 limited to the payment of the
39,499.37
13) me supersedeas bond in the form of an
irrevocable standby letter of credit ("LOC") 1s hereby
approved; and
Ta) "the Loc is to be delivered to (Kamaka) following
the entry of this order,
uv
‘** NOT FOR PUBLICATION ***
on November 14, 2001, Goodsill timely filed a second
notice of appeal, again citing the collateral order doctrine.
With regard to the orders from which Goodsill stated that it was
appealing, Goodsill substituted the November 1, 2001 order
granting in part and denying in part Kamaka’s motion to enforce
the sanctions order and for contempt sanctions for the September
14, 2001 oral order granting Kamaka’s motion to enforce sanctions
and for contempt sanctions, but otherwise reiterated the same
orders as set forth in the September 24, 2001 notice of appeal.
In that connection, insofar as Goodsill alleges error
nly as to (1) the September 6, 2000 order granting Kamaka’s
second motion for sanctions and (2) the March 9, 2001 order
granting Kamaka’s motion for sanctions, we do not address infra
the November 1, 2001 order granting in part and denying in part
Kamaka’s motion to enforce the sanctions order and for contempt
sanctions. See Hawai'i Rules of Appellate Procedure (HRAP) Rule
28(b) (4) (2002) (“Points not presented . . . will be disregarded
+ + +s). Moreover, because Goodsill does not advance any
arguments as to the Noverber 1, 2001 order, we deem any point of
error as to the November 1, 2001 order waived.’ See HRAP Rule
28(b) (7) (2002) ("Points not argued may be deemed waived.").
2 Although the Novenber 14, 2001 notice of appeal stated that
Goodsi1i was appealing the Septenber 6, 2000 order granting Goodsill's motion
for clarification, Goodsiil also failed to specifically aliege error = to
that order in its points of error on appeal. Nevertheiess, Goodsiil argues in
Sts opening brief, inter alia, that the reasoning set forth in the September
6, 2000 order granting Goedsiil’s motion for clarification was erroneous. AS
Such, we discuss the September 6, 2000 erder granting Goodsiil’s motion for
clarification {nfra, although our disposition of the present matter does not
alter the order~
18
*# NOT FOR PUBLICATION ***
It ig noteworthy that, on December 24, 2003, the
circuit court entered final judgment on the merits of Kamaka’s
complaint in favor of Goodsill and against Kamaka.
TI. STANDARD OF REVIEW
A circuit “court's imposition of a discovery abuse sanction
Te teviewabia on appesl for abuse of discretion. A
[circuit] court abuses ite discration whenever it exceeds
tke bounds of reason or disregards rules or principles of
{ik Sr practice to the substantial detriment of a party.”
79 Hawas's 527, 532-33,
Sor Fiza Set, Ste-4? Tapp. 1995) {citation end internal,
quotation marks omitted)
Kawamata Farms, Inc, v. United Aori Products, 86 Hawai'i 214,
241, 948 P.2d 1055, 1082 (1997).
TIT. DISCUSSION
Goodsill contends that “the [circuit c]ourt’s award of
sanctions should be vacated for two independent reasonsi,]” to
wit: (1) that Goodsill “could not have viclated Judge Nakatani’s
[olrder (that, at the continued deposition, Goodsill take only
the position that Song comply with the court’s ruling and order
and fully testify,] since . . . Song's deposition was not
retaken”; and (2) that Goodsill’s February 16, 2000 “letter was
an affirmation, not a repudiation of [Goodsili’s] intention to
comply with Judge Nakatani’s order.” We agree.
Hawai'i Rules of Evidence (HRE) Rule 503 (1993)
describes the “[LJawyer-client privilege” in relevant part as
follows:
A client has privilege to refuse to disclose and to
prevent any other person from disclosing confidential
PGmmunications nade for the purpose of facilitating the
Fendition of professional 1e9: fo the client
between the client or the client's representative and
19
‘4+ NOT FOR PUBLICATION ***
Lawyer of the lawyer's representative...
HRE Rule $03(b). Moreover, “[t]he privilege may be claimed by
the client (,]” and “[t]he person who was the lawyer . . . at the
time of the communication shall claim the privilege on behalf of
the client unless expressly released by the client.” HRE Rule
503(c), It is noteworthy that at no point during the present
matter did the circuit court expressly apply any of the
exceptions listed in HRE Rule 503(d) to Goodsill’s claim of the
attorney-client privilege.
As discussed supra in section I.B, the February 24,
2000 order granting in part and denying in part Kamaka’s motion
for sanctions ruled, inter alia: (1) that the circuit court had,
+ uRE Rute 503(¢) provide:
(a) Exceptions. There is no privilege under thie rule:
(2) Furtherance of Crine or Fraud. If the services of the lawyer were
sought, obtained, oF used to enable or aid anyone to commit or
plan £0 commit what the client knew or reasonably should have
Known to be a cris oF fraud?
(2) Prevention of Crime or Fraud, As to @ communication reflecting
the client's a'riminal or fraudulent act that
the lanyer reasonably believes is likely to result in death or
Substantial bodily har, or in substantial injury co the financial
interests or property of another:
(2) Glainants Through Same Deceased Client. As to a communication
Felevant to an itsue between parties sho claim through the sane
Geceased client, regardless of whether the claims are by testate
oF intestate succession or by inter vivos transaction:
(4) Breach of Duty by Lawyer or Client. “As to a communication
Felevant to an issue of breach of duty by the lawyer to the client
of by the client to the lawyer:
(5) Document Attested by Lawyer, As to a communication relevant to an
issue concerning an attested docusent to which the lawyer is an
attesting witness;
(6) Soint Clients. As to a communication relevant to 2 matter of
Connon interest between two or more clients if the communication
vas made by any of then to a lawyer retained or consulted in
Common, when offered in an action between any of the clients; or
(7) Lgnyer's" Professional Responsibility. As to 2 communication the
Gisclogure of which is required or authorized by the Hawaii rules
of professional conduct for attorneys
20
+#* NOT FOR PUBLICATION ***
prior to the July 6, 1999 deposition, “rejected [Goodsill’s}
assertion of [the] attorney-client privilege”; (2) that
“{Goodsill''s} exception [to the circuit court’s rejection of the
privilege had] been preserved”; and (3) that, at the retaking of
Song's deposition, “{Goodsill could) take only the position that
Mr. Song comply with the court {’]s ruling and order to answer all
questions posed to him.” We note that, although the September 6,
2000 order granting Goodsill’s motion for clarification states
that the May 23, 2000 oral order granting Kamaka’s second motion
for sanctions was based upon the circuit court’s conclusion that
Goodsill’s February 16, 2000 letter “violated the intent and
spir[iJt of Judge Nakatani’s Order of February 24, 2000," the
relevant order was necessarily Judge Nakatani’s December 14, 1999
oral ruling. In other words, Goodsill’s February 16, 2000 letter
could not have violated the circuit court’s February 24, 2000
order because it had not yet been entered. Cf. CRSC, Inc, ve
Sage Diamond Co., Inc., 95 Hawai'i 301, 305, 22 P.3d 97, 102
(app. 2001) (quoting Ellis v. Crockett, 51 Haw. 45, 59-60, 451
P.2d 814, 824 (1969), for the proposition that “H.R.C.P.() Rule
S8[,] providing that the judgment is not effective until filed or
entered[,] is equally applicable to orders dismissing a case”)
‘The cdreuit court’s December 14, 1999 oral ruling is
substantially similar to the February 24, 2000 written order,
stating in relevant part: (1) that Goodsill’s attorney-client
privilege objection was preserved; (2) that, at Song’s
redeposition, Goodsill could “only take the position that . .
Song comply with the [circuit] court’s ruling and order to answer
2
‘+#* NOT FOR PUBLICATION ***
all questions posed to him”; (3) “that [the] deposition must go
forward”; and (4) that, “if the [circuit] court [ultimately]
conclude(d] that{, at the] deposition[,] [Goodsill] somehow
impede[d] [Kamaka’s] ability to conclude [the] deposition, then
the court [would] grant leave to [Kamaka] to refile its request
for sanctions.”
Judge Crandall explained in the September 6, 2000 order
granting Goodsill’s motion for clarification that her May 23,
2000 oral ruling imposing sanctions upon Goodsill was predicated
upon the statement in Goodsill’s February 16, 2000 letter “that
*{Goodsill] ha[d] not waived the attorney-client privilege
between it and Mr. Song and we believe that the [circuit clourt
understood and acknowledged that no waiver has occurred[,]""
which Judge Crandall concluded was a “violat {ion of} the intent
and spir[i]t of Judge Nakatani's Order of February 24, 2000.”
Goodsill’s statement that it had not waived its attorney-client
privilege must therefore have somehow conflicted with Judge
Nakatani’s February 24, 2000 rulings (1) that the circuit court
had, prior to the July 6, 1999 deposition, “rejected [Goodsill’s]
assertion of [the] attorney-client privilege” or (2) that, [alt
{Song's [re]deposition, [Goodsill] may take only the position
that . . . Song comply with the court [‘]s ruling and order to
answer all questions posed to him.”
Nevertheless, the February 24, 2000 order did not
require either that Goodsill refrain from asserting its attorney-
client privilege or that Goodsill waive the privilege, but merely
reiterated that the circuit court had, prior to the July 6, 1999
22
‘+#* NOT FOR PUBLICATION ***
deposition, “rejected (Goodsill’s] assertion of [the] attorney-
client privilege.”? Moreover, Judge Nakatani’s December 14, 1999
oral ruling, which, as we have said, was the only order actually
in effect at the time of Goodsill’s February 16, 2000 letter,
merely affirmed that Goodsill’s “claim of privilege [was]
preserved [but would) not stand in the way of” Song’s testimony.
With regard to Judge Nakatani’s determination that, at the
xedeposition, Goodsill could only take the position that Song
comply with its ruling and to fully testify,* Goodsill could not
have contravened that order because the deposition was never
taken. Goodsill also asserted in the February 16, 2000 letter
that it would “abide by the [circuit cJourt’s order and [would)
not take any position to hamper or prevent . . . Song from
+ We acknowledge that the November 1, 2001 order granting in part
land denying in part Kanara’ motion to enforce the sanctions order and for
Contempt sanctions “eonfizn{ed) the [elourt’s previaus order that (Goodsill)
‘fesert the attorney-client privilege with respect to. . . Song
snel-Ot Emphasis added.) Nevertheless, the Hovenber 1, 2001 order and its
Characterization of the March 3, 2001 order granting Kenaka’s second motion
for sanctions against Goodsill are clearly prospective with regard co their
andate that Coodsiil not assert the privilege, as evidenced by the word,
Sthalle". Thus, our determination thet the February 24, 2000 order did not
require that Goodsill refrain from asserting its attorney-client privilege is
Consistent with the Novenber 1, 2001 order.
Te"is"also noteworthy that the foregoing mandate ultimately did not
amount to an order thet Goodsill expressly waive its attorney-client
privliege, aa evidenced by the relative narrowness of the statement to Song
Senanded cf Goodsill by the Novenber 1, 200] order: °*(Goodsill's) position,
Pursuant to [the] order of the (circuit clourt, is that you must answer all
Questions posed to you by (Kanaka's] counsel-'* More specifically, Judge
Elandail herself stated in the Septenber 14, 2001 oral ruling granting in part
land denying in part. Kenaka’a motion to enforce the sanctions order and for’
Contenpt canctions thet the Septenser 6, 2000 order granting Goodsill’s motion
for clarification recognized “that the {circuit e]ourt had not ordered
[ceodsill} to waive the attorney client privilege, but [acknowledged that] the
[eirouit court previously ordered that it could ot be asserted(.1”
Both the December 14, 1999 oral ruling and the February 24, 2000
written order mandated that Goodeiil take the position set forth supra.
23
+#* NOT FOR PUBLICATION ***
complying with the court’s order compelling disclosure of
information over [Goodsill’s] objection.” In light of the
foregoing, Judge Crandall’s conclusion that Goodsill’s February
16, 2000 letter had “violated the “intent and spirit’ of Judge
Nakatani’s order of February 24, 2000” was so broad an expansion
of Judge Nakatani’s order as to constitute an abuse of
discretion. Kawamata Farms, 86 Hawai'i at 241, 948 P.2d at 1082.
Furthermore, neither Judge Nakatani’s nor Judge
Crandali's rulings mandated, nor could they properly mandate,
that Goodsill waive its attorney-client privilege, as Judge
Crandall herself explained in the September 6, 2000 order
granting Goodsill’s motion for clarification: (1) “Judge
Nakatani’s Order of February 24, 2000{] did not order {Goodsill'
to waive its attorney-client privilege with Larry Sona”; (2) the
circuit court, “by its ruling on May 23, 2000, did not order
Goods. o waive its attorney-client privilege with Larry
Song{.]” (Emphases added.) See also supra note 3. Kamaka
herself concedes that “(t]he circuit court did not order
[Goodsil1] to affirmatively waive any attorney[-]client
privilege.”
We therefore hold (1) that the circuit court abused its
discretion in entering September 6, 2000 order granting Kamaka’s
second motion for sanctions and (2) that the circuit court abused
its discretion in entering the March 9, 2001 order granting
Kamaka’s motion for sanctions, which itself vas based upon the
September 6, 2000 order.
24
‘4 NOT FOR PUBLICATION ***
IV. CONCLUSION
Based on the foregoing analysis, we (1) vacate (a) the
September 6, 2000 ozder granting Kamaka’s second motion for
sanctions and (b) the March 9, 2001 order granting Kamaka’ s
motion for sanctions and (2) remand this matter to the circuit
court for further proceedings consistent with this opinion,
DATED: Honolulu, Hawai'i, August 31, 2005.
on the briefs:
John Winnicki, %y
‘of Ning, Lilly & Jones,
for plaintiff-appellee
kitty K, Kamaka
Edmund K. Saffrey,
Of Goodsili Anderson
Quinn « Stifely Becta Celie Arie
for defensant-appellant
Goadsill, Anderson,
Quinn « Stifel Goran €: Dubey dhe
25
|
c0ab7aa9-d1a8-468e-9f78-0b6ef813fdbc | Shipman v. State | hawaii | Hawaii Supreme Court | No. 27257
IN THE SUPREME COURT OF THE STATE OF HAWAT,
NNN
GAMES T. SHIPUAN, Petitioner-Appellant -&
vs
‘OONYEI HF
STATE OF HAWAI'I, Respondent-Appellee.
ZH Hd Nd
APPEAL FROM THE FIRST CIRCUIT COURT
(8.B.P. NO. 05-1-0003 (CR. NO. 97-2556))
DENYING Mi piswiss R-APPELLANT’
(By: Levinson, J., for the court")
upon consideration of Respondent-Appeliee State of
Hawas'i’s motion to dismiss the appeal of Petitioner-Appellant
James T. Shipman for lack of jurisdiction, the papers in support
and opposition, and the records and files herein, it appears
that: (1) the circuit court granted Appellant's motion for
extension of time to file the notice of appeal; and (2) the
notice of appeal received by the circuit court on April 15, 2005
and filed on April 26, 2005 was timely filed. Therefore,
IT 18 HEREBY ORDERED that the motion to dismiss appeal
for lack of jurisdiction is denied.
DATED: Honolulu, Hawai‘i, September 14, 2005.
FOR THE COURT:
STEVEN H. LEVINSON
Associate Justice
Lisa M, Itomura,
deputy attorney general,
for respondent~appellee
James 7. Shipman,
petitioner-appellant
pro se, in opposition
Considered by: Moon, C.J-, Levinson, Nakayama, Acoba, and Duffy,
qa
|
71de373b-5fde-4eda-8c53-660043ae146c | Bonty v. State | hawaii | Hawaii Supreme Court | No. 27205
IN THE SUPREME COURT OF THE STATE OF HAWAT‘I:
aaus
TBS 2
NATHANIEL BONTY, Petitioner-Appellant & 2
STATE OF HAWAI'I, Respondent-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(8.B.P. NO. 04-1-0002; CR. NO. 58523)
(By: Moon, C.J., Levinson, Nal
ama, Roba, and Duffy, JJ.)
Upon consideration of Respondent-Appellee State of
Hawaii's motion to dismiss Petitioner-Appellant Nathanial £.
Bonty’s appeal as untimely, the papers in support and opposition,
and the records and files herein, it appears that: (1) the
circuit court's February 1, 2005 order denying Petitioner-
Appellant's petition for post conviction relief was appealable by
notice of appeal filed within thirty days after the order was
entered. See HRPP Rule 40(h); HRAP Rule 4(b) (1); (2) Petitioner-
Appellant signed the notice of appeal on March 20, 2005 and filed
the notice of appeal on March 31, 2005; (3) the notice of appeal
was filed more than thirty days after the order being appealed;
(4) Petitioner-appellant’s contention that his notice of appeal
vas late because his legal service provider, EXPRESS LEGAL
SERVICES, failed to timely prepare the document for filing does
not excuse the late filings and (5) due to the untimely filing of
the notice of appeal, we lack jurisdiction. See Grattafior
mi
State, 79 Hawai'i 10, 13, 897 P.2d 937, 940 (1996) (compliance
with the requirements of the timely filing of a notice of appeal
is jurisdictional, and we must dismiss an appeal if we lack
jurisdiction). Therefore,
IT TS HEREBY ORDERED that the motion to dismiss is
Granted, and this appeal is disnissed for lack of jurisdiction.
TT TS FURTHER ORDERED that the supreme court clerk's
office shall forward a copy of this order and Petitioner-
Appellant’ s response in opposition to Respondent-Appellee state
of Hawaii's motion to dismiss appeal to the Attorney General for
review and investigation, if warranted, of the possible
unauthorized practice of law by persons affiliated with EXPRESS
LEGAL SERVICES, 1088 Bishop Street, Suite 903, Honolulu, Hawas‘t
96813, and 1750 Kalakaua Ave., Suite 103-3624, Honolulu, Hawai'i,
96820.
DATED: Honolulu, Hawai'i, August 30, 2005.
Lisa M. Ttomura,
Deputy Attorney General,
for respondent-appellee
on the motion r
Nathaniel Bonty,
et itioner-appellant,
ro se, in opposition Bate O. TNeeney dense
Gane Dads be
|
8259b91d-43a8-4eb3-9397-4e5a4e223711 | Taomae v. Lingle | hawaii | Hawaii Supreme Court | LAW LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
000---
PATRICK Y. TAOMAE, BARBARA L. FRANKLIN, GENE BRIDGES,
NAN KAAUMOANA, A. JORIS WATLAND, GEORGE HARRIS,
HACKSOON ANDREA LOW, ESTHER SOLOMON, RICHARD G. CHISHOLM,
MICHAEL J. GOLOJUCH, CHRISTOPHER A. VERLEYE, HEATHER K.L-
CONAHAN, JULIET BEGLEY, PAMELA G. LICHTY, SHERYL L.
NICHOLSON, ERIC G. SCHNEDIER, CAROLYN M. GOLOJUCH;
COLIN YOST, WILLIAM A. HARRISON, NORMAN V. BODE, RODNEY B.
AIU, RICHARD C. JACKSON, THEODORE N. ISAAC, MARK R. EWALD,
REV. MICHAEL G. YOUNG, PAULA F. MYERS, LOUIS ROSOF, JOAN H.
RICH, SUSAN L. ARNETT, PAMELA O'LEARY TOWER, DAVID
BETTENCOURT, LUNSFORD DOLE PHILLIPS, MARY ANNE SCHEELE,
RAYMOND SCHEELE, ROBERT P. MCPHERSON, JEAN A. EVANS,
DONALD E. EVANS, and ARTHUR E. ROSS, Plaintiffs
LINDA LINGLE, in her official capacity as Governor
of the State of Hawai'i; and DWAYNE D. YOSHINA, in
his official capacity as Chief Election Officer
for the State of Hawai'i, Defendants
No. 26962
a0
ORIGINAL PROCEEDING
aad
SEPTEMBER 2, 2005 BS
Vaal
1:8 We 2- d39S0UL
ORDER OF CORRECTION.
(By: Acoba, J.)
y
saynt Bv
Upon review of the Opinion of the Court filed in this
case on September 1, 2005, it appears that the Opinion does not
reflect that a brief was filed by Amicus Curiae The Legislature
of the State of Hawai'i. Therefore,
IT 1S HEREBY ORDERED that the following shall be added
to the end of the Opinion following the reference to the
Defendants:
Susan Jaworowski (Senate Majority
Attorney) and Richard Dvonch (Chief
Attorney of the House of
Representatives) for Amicus Curiae
The Legislature of the State of
Hawai't.
IT 1S FURTHER ORDERED that the clerk of the court is
directed to incorporate the foregoing change in the original
opinion and take all necessary steps to notify the publishing
agencies of this change.
|
a23e20cc-d69a-4af6-8061-c208d40d1b4a | In re Doe Children: John, born 09/06/92, John, born 12/16/97, John, born 12/16/97, John, born 10/23/2000, and John, born 01/31/2002 | hawaii | Hawaii Supreme Court |
Nos. 26739 and 26080
Sz Snv sone
oss
I THE SUPREME COURT OF THE STATE OF HAAAT'T
if =
IN THE INTEREST OF DOE CHILDREN: = "3I3 =
JOHN DOE, BORN ON SEPTEMBER 6, 1992,
BORN ON DECEMBER 16, 1997,
JOHN DOE,
JOHN DOE, BORN ON DECEMBER 16, 1997,
JOHN’ DOE, ‘BORN ON OCTOBER 23, 2000, AND,
‘BORN ON JANUARY 31, 2002, MINORS.
JOHN DOE,
oo
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Fo-S No. 02-08044)
PP
Levinson, J., for the court’)
upon consideration of the application for a writ of
certiorari filed on August 15, 2005, by the father-appellant-
petitioner, the same is hereby denied.
Honolulu, Hawai'i, August 25, 2005.
FOR THE COURT:
STEVEN H. LEVINSON
Associate Justice
DATED:
Herbert Y. Hamada,
for father-appeliant
on the writ
Francis T. O'Brien,
for intervenors-
appellees, in
opposition
Moon, Gude» Levineon, Nakayama, Acoba, and Duffy, JJ.
considered by:
|
7f37ea85-a977-48ab-af52-d2c92e862b95 | S.Ct. Coronel v. State | hawaii | Hawaii Supreme Court | *** NOTFOR PUBLICATION ***
No. 26403
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
PAUL KAY CORONEL, Petitioner-Appellant
evn Sone
STATE OF HAWAI'I, Respondent-Appellee
(No. 26398; CIV. NO. 03-1-1088)
PAUL KAY CORONEL, Petitioner-Appeliant
STATE OF HAWAI'I, Respondent-Appellee
(NO. 26403; S..P. NO. 03-1-0006K)
APPEAL FROM THE FIRST AND THIRD CIRCUIT COURTS
(ey: Moon, C.J., Levineon, Nakayama, Acoba, and OUELY J.)
Plaintiff-appellant Paul fay Coronel, aka Paul Dennis
coronel, appeals pro se from: (2) the Circuit Court of the Third
circuit's February 2, 2004 final order! denying his petition
under Havai't Rules of Penal Proceduse (HRPP) Rule 40 for relief
from his judgment of conviction for multiple counts of theft in
the first degrees and (2) the Circuit Court of the First
circuit's August 23, 2003 interlocutory order? transferring venue
te the third circuit and reclassitying his petition for
declaratory judgment as a HRPP Rule 40 petition for post~
\ the Honorable Ronald Ibarra entered the February 2, 2004 order
! the Honorable Sabrina S. McKenna entered the August 29, 2003 order
ayes
*** NOT FOR PUBLICATION ***
conviction relief.’ As points of error on appeal, Coronel
contends that: (1) Hawai'i Revised Statutes (HRS) § 708-835
(1985) violates the Hawai‘ and United States Constitutions by
allowing defendants to be convicted of crimes for which they were
not indicted (2) Coronel himself was denied due process and
grand jury rights because he was convicted, with the aid of HRS §
108-835, of a theft offense different from that for which he was
indicted; and (3) the first circuit court erred in transferring
his petition to the third circuit and compelling him to use HRPP
Rule 40 to test the constitutionality of HRS § 708-835.
upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the argunents advocated and the issues raised, we hold as
follows:
(2) the first cireuit court did not err in transferring
Coronel’s petition because it did not have jurisdiction
to entertain it as a petition for declaratory judgment,
and only the third circuit court had jurisdiction to
hear it as a non-conforming HRPP Rule 40 petition for
> As an interlocutory order, the August 23, 2003 order was not
Andependently appealable, but becase so upon entry of the February 2, 2004
Hinal order, See State v, Adan, 97 Hawaii 475, 462, 40 P.30 877, 684 (2002)
(an appeal froma final order of Judgment brings up for review all preceding
interlocutory orders in the case). Coronel filed separate appeals from each
of the first circvit'e interlocutory order and the third circuit's final
order, which were docketed in this court as Nos. 26398 and 26403,
Fespectively. the appeals were consolidated by order of this court under No.
26403.
*** NOT FOR PUBLICATION ***
post-conviction relief. First, neither court had
jurisdiction under the declaratory judgment statute,
HRS § 632-1 (1993), because Coronel had an adequate
renedy at law
the defense of his own criminal
prosecution -- for challenging the constitutionality of
HRS § 708-835. See Pacific Meat Co, v. Otagaki, 47
Haw. 652, 655-56, 394 P.2d 618, 620-21 (1964)
(declaratory relief is not available to enjoin the
enforcement of a criminal statute where its
constitutionality may be tested by defense of 2
criminal prosecution). Second, only the third circuit
court, and not the first circuit court, had
jurisdiction under the criminal jurisdiction statute,
HRS § 603-21.5 (1993), because Coronel’s offenses were
conmitted within the third circuit and his case was not
transferred from a court of that circuit to the first
circuit for trial. See HRS § 603-21.5(1) (circuit
courts shall have jurisdiction over offenses “committed
within their respective circuits or transferred to them
for trial by change of venue from sone other circuit
court”)
(2) Coronel’s petition was properly treated as a non-
conforming HRPP Rule 40 petition because it constituted
a post-conviction attack on his conviction based on a
*** NOT FOR PUBLICATION ***
constitutional challenge to the sufficiency of his
Andictment. See HREP Rule 40(a) (1) (1) (post-conviction
proceedings under Rule 40 encompass challenges to a
judgment of conviction on the grounds that the judgment,
was obtained in violation of the federal or state
constitution); HRPP Rule 40(c) (2) (the court may, upon
written order, require that non-conforming post-
conviction petitions claiming illegality of judgment be
conformed to the requirements of Rule 40 with the
filing of a supplenental petition);
(3) Coronel’s argument regarding the constitutionality
of HRS § 108-835 is precluded, and thus his petition
properly denied, because he has previously challenged
the constitutional sufficiency of his indictment on
Gizect appeal and in other post-conviction
proceedings.‘ See HRPP Rule 40(3) (3) (Rule 40 relief
not available where the issues sought to be raised have
been waived or previously ruled upon). Therefore,
IT 18 HEREBY ORDERED that: (1) the third circuit
court’s February 2, 2004 final order denying Coronel’s petition
‘ cozonel’s conviction was affirmed on direct appeal by memorandum
‘opinion of this court on June 18 1990. state v, Corane], No. 13919, 71 Haw.
687, 194 F.2d 616 {1990}. His HREP Rule 40 petition for post-conviction
Felief was denied by sumtary disposition order of this court on Septenber 30,
1999. Stace 'v. Coronel, No, 21369, 92 Hawai'i 632, 994 P.2d S6¢ (1999)
Coronel raised challenges to the constitutionality of his indictment
Uneluding, inter alia, that the sedictnent was impermissibly smended) that
were ruled upon in both of those proceedings.
4
*** NOT FOR PUBLICATION ***
for post-conviction relief; and (2) the first circuit court’s
August 29, 2003 interlocutory order transferring and
reclassifying Coronel’s petition are affirmed.
DATED: Honolulu, Hawai'i, August 30, 2005.
on the briefs: Gone —
Paul Kay Coronel, :
petitioner-appellant, i oe
pro se
Dale Y. Ross, Bessetes CN eapcioey Ve
Deputy Prosecuting Attorney,
for respondent-appellee
State of Hawai'i YX
Vane, Buatgs be
|
2e7b5c9c-2e42-4e4f-95e6-aa50ab7b9ebc | Custer v. Administrative Director of the Courts. S.Ct. Order Denying Motion for Reconsideration, filed 11/08/2005 [pdf]. | hawaii | Hawaii Supreme Court | ‘***P0R PUBLICATION***
a
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000:
te
iF
CURTIS C. CUSTER, Petitioner-Appellant
et
|
ADMINISTRATIVE DIRECTOR OF THE COURTS,
‘STATE OF HAMAT'I, Respondent~Appellee 5]
oe —
No. 26026
$2
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. JR 03-0010)
SEPTEMBER 23, 2005
MOON, C.J-, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold, in this appeal by Petitioner-Appellant Curtis
c. Custer (Custer), from the July 16, 2003 judgment of the
district court of the first circuit! (the court) affirming the
May 5, 2003 decision of Respondent-Appellee Administrative
Director of the Courts, State of Hawai't! (Director), that the
+ the Honorable Lono J. Lee presided.
2003) states that,
Hawai'i Revises Statutes (RS) § 2918-2 (Supp.
“sbirector! means the administrative director of the courts or any other
person within the judiciary appointed by the director to conduct
Ecuinistrative reviews or hearings or carry out other functions relating to
fatinistrative revocation under part III [entitied ‘Adainistrative Revocation
(continued.
)
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Director may not, in an administrative hearing filed pursuant to
Hawai'i Revised Statutes (HRS) § 2918-38 (Supp. 2003), consider
an offense occurring after the HRS § 2916-31 (Supp. 2003) notice
of administrative revocation had been issued, as a basis for
increasing an administrative revocation period already determined
on adniniatrative review by the Director under HRS §§ 2916-37 and
2916-41 (Supp. 2003). In Light of our holding, we reverse the
additional thr
month revocation period imposed by the Director
relating to Custer’s March 7, 2003 arrest for an offense that
occurred after the January 6, 2003 arrest for which the notice of
revocation had been issued in this case, We affirm the aforesaid
judgment in all other respects.
1
on January 6, 2003, Custer was arrested for driving
under the influence of an intoxicant (DUI), in violation of HRS
§ 2918-61 (Supp. 2002). Police confiscated Custer’s license and
issued him 2 thirty-day temporary driving permit valid through
February 5, 2003. On January 10, 2003, following the
adninistrative review by the Director that automatically followed
Custer’s arrest pursuant to HRS § 2918-37, a hearing officer of
the Administrative Driver's License Revocation Office (ADLRO)
sustained the revocation of Custer’s driver’s license in an
2(.. ,continued)
Process’]." By virtue of this provision, the hearing officer exercises the
Powers of the administrative director of the courts in conducting
Adzinistrative review nearings. See
96 Hawai's 114, 115 m2, 26 F.3d 1214, 1215 nt (2001),
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OO
administrative review hearing. Custer’s License was revoked for
the three-month period between February 6, 2003 and May 5, 2003.
on January 22, 2003, the AOLRO received Custer’s request for an
administrative hearing pursuant to HRS $ 2916-38.
on February 5, 2003, Custer's temporary permit for the
January 6, 2003 arrest expired. On March 7, 2003, Custer was
arrested for a second DUI, HRS § 2916-61 (Supp. 2002), while
driving without a valid License.
By an April 1, 2003 letter, Custer was notified to
appear at the ADLRO on April 30, 2003, at 9:30 a.m. for his
hearing. The matter had been set for earlier dates (on
February 13, 2003, March 13, 2003, and April 1, 2003), but had
been continued pursuant to Custer’s requests and upon finding
good cause for Custer’s continuances.
Prior to the hearing, Custer requested a subpoena to
Chief Adjudicator Ronald Sakata (Sakata), which was
administratively denied. Just before the April 30, 2003 hearing,
Custer alleges that an unidentified woman came into the ADLRO and
asked to attend his hearing. This woman was informed by the
receptionist and hearing officer that she could not attend the
hearing unless she showed identification and signed in at the
reception desk. The wonan refused to produce identification or
sign in, and therefore was denied entry.’
2 Custer contends that the Wonan had no objection to a physical
search, but refused to produce identification er sign in as she believed this
fe be an invasion of her privacy.
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ee
n.
Custer appeared with counsel at the April 30, 2003
hearing.* The hearing began with the hearing officer receiving
the arrest report, the sworn statements of the arresting officer
Christopher Chung (Chung) and Medical Technician Edgar Talaver
and Custer’s traffic violation record which showed no prior
offenses, but one subsequent revocation.
custer’s counsel requested a hearing on the security
‘The hearing officer denied the request stating it
procedur
was beyond the scope of her authority, but allowed counsel's
objections to become part of the record. The hearing officer
also noted that she had denied counsel's request to subpoena
Sakata, since the subpoena went to the issue of whether or not
the security sign-in procedure was warranted.
Custer then requested that @ proposed “Intoxilyzer
5000/Blood Test Case Procedure” be followed at the hearing. The
hearing officer emphasized that the hearing must be conducted
pursuant to HRS § 291£-38," which prescribes the administrative
+ _Atthough the ADLRO’s Findings of Fact, Conclusions of Law, and
Decision (decision) state that Custer “was not present,” the April 30, 2003
transcript indicates that he was present.
+ RS § 2916-38 states in relevant part as follows:
(b) The hearing shall be held at 2 place designated by
the difector as close to the location where the notice of
Soninistrstive revocation was issued as practical
(e) The respondent may be represented by counsel and,
if the respondent is under che age of eighteen must be
accompanied by a parent of guardian.
{a} the director shall conduct the hearing and have
aurnority £0:
(2) “Administer oaths and affirmations:
{2} Eeamine witnesses aad take testimony:
(contin
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hearing and procedure.
‘The hearing was conducted de nove based on prior
judicial review decisions. Custer objected, arguing that HRS
§ 2918-38 “states that the Director shall affirm the review
decision if he finds certain things” and that tr
ting the
‘ring a8 de novo is contrary to clear law in this jurisdiction.
Custer also objected to admitting the unsworn statements
submitted by Officer Michele Yoshiki (Yoshiki) as well as the
results of the standard field sobriety tests she administered to
Custer. The hearing officer did not consider Yoshiki’s unsworn
statement or the field sobriety test in making her decision.
Custer then objected to the admission of the sworn
statement of Officer Scott Tanacka since the officer referred to
a preliminary breath test. However, the hearing officer
*{.sseontinued)
(3) Receive and determine the relevance of
wy
{5} Regulate the course and conduct of the
hearings and
(6) Make @ final reling
igi ine respondent's pricr alcohol and drug
enforcement contacts shall be entered into evidence.
{h) Tne sworn etatenents provided in section 2916-36
shall be admitted into evidence. The director shall
Consider the evorn statements in the absence of the law
Gnforcenent officer or other person. Upon written notice te
the director, no later than five days prior to the hearing,
that the respondent wishes to examine o law enforcenent
Sfficer of sther person whe made a sworn statement, the
Gizector shall istve a subpoens for the officer oF othe
person to appear st the hearing. Personal service upon the
Tow enforcenent officer or other person no made a sworn
statenent shall be made no later than forty-eight hours
Prior to the hearing tine, If the officer or other person
Eannot appear, the officer or other person st the iseretion
Of the directér, may testify by telephone.
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overruled the objection because the test pertained to the issue
of probable cause.
Custer next objected that jurisdiction was absent
because Chung had failed to sign the jurat* on the Notice of
Administrative Revocation but instead had signed the Certified
Statement of Dismissal section, dating it January 6, 2003.
However, Chung had not marked the section that states, “This
certifies that the administrative revocation proceeding against
you has been terminated with prejudice and that your driver's
License and motor vehicle registration and License plates, if
applicable, have been returned to you (1) because your alcohol
concentration test was less than .08 if your case involved an
alcohol related offense.”
Custer objected, first asserting that because there was
no date, time or location given on the line that affirms the
notice was issued, there is no evidence that the notice was ever
provided to him and this is 2 fatal defect. Second, Custer
argued that even though he had signed the notice to acknowledge
that he had received it, all he had acknowledged was receipt of a
document saying the matter had been dismissed. The hearing
officer inferred that the case was not dismissed because Chung
had submitted the required documents and the case was before her.
«the jurat states, “I SWEAR OR AFFIRM THAT THIS NOTICE WAS TSSUED
‘TO YOU ON THE SATE, ‘TIME, ANO LOCATION PROVIDED HEREIN,” and provides a space
beneath this statement for the arresting officer to sign and specify the tine,
Gate and location the notice was issued to the arrestee.
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OO
Custer also objected to the implication in the Honolulu
Police Department (HPD) 3968 Implied Consent Form (Form 3968)
that the only issue in an administrative revocation is a test
showing a breath or blood alcohol of .08 or higher or a refusal:
that the distinction between a criminal suspension and an
adninistrative revocation is not explained on the Notice of
Adninistrative Revocation as required by HRS § 2916-34 (a) (2)
(supp. 2003); that HPD Form 396B does not notify a person that
the word “vehicle” includes a vessel and a moped; and that Custer
was not informed that he had a legal right to refuse a test.
on May 5, 2003, the hearing officer sustained the
revocation of Custer’s driver's license. The hearing officer
also increased the revocation period from three months to six
months, ‘The hearing officer in her “Findings of Fact,
Conclusions of Law, and Decision,” stated inter alia as follows:
lastly, this (hlearing [o]fficer has determined that
[ouster’s] revocation is amended toa six-month revocation.
Opeard adjustment of the revocation period is within the
hearing officer's discretion. See, Gray v. [adnin. Dir. of
Sti, 64 Haw(ara} 138, 931 Pad
5e0-(1997)-_ This InJearing (o]fticer notes thet (Custer).
Was arrested for a violation of (HRS) §{J281E-€1 on March 7,
3ooas This (Rjearing [0] fflcer further notes that
{[custer's] tenporary permit for the January 6, 2003 arrest
je) expired on February 5, 2003,” [Custer] would,
‘Sriving without a valid’ license for the Mazch 7,
2003 arrest. This (hJearing (officer finds that (Custer}
had exercised extrenely poor judgment in continuing to drive
find shown wanton disregard for his safety as well as the
safety of the goneral public.
mr.
Custer sought judicial review and appealed to the
court. On July 16, 2003, the court affirmed the hearing
officers decision and entered a separate judgnent.
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Ww.
on appeal, Custer essentially argues that (1) the
court erred in holding that Custer’s state and federal
constitutional rights to a public hearing were not violated with
respect to (a) restrictions on public access to his ADLAO
hearing, (b) his right to a hearing on the validity of those
restrictions, (c) his right to challenge the validity on those
restrictions on behalf of the public, and (d) the State’s failure
to justify the restrictions on the ADLRO hearings; (2) the court
erred in holding that the hearing officer (a) had the power to
increase Custer’s revocation period from that set in the
administrative review, and (b) properly considered Custer’ s
subsequent DUI arrest as the basis for extending the revocation
period; (3) the-court erred in ruling that Custer had not been
denied due process of aw based on (a) a seeming contradiction in
HRS § 2916-38 (a) which declares the revocation hearing will
vreview the (administrative review) decision,” yet allows
motorists to call witnesses and offer evidence, suggesting that
the hearing is de nove, (b) the lack of 2 uniform hearing
procedure, (c) the admission of the entire ADLRO file, and
(a) the hearing officer's adherence to Desmond v, Adnin Dir. of
the Courts, $1 Hawai'i 212, 220, 982 P.24 346, 354 (App. 1998),
rev'd on other grounds, 90 Hawai'i 301, 978 P.2d 739 (1999)
(holding that hearing officers should inform the parties of the
procedures at the beginning of the hearing); (4) the court erred
in holding the ADLRO had jurisdiction because (a) the arresting
8
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officer had failed to sign the jurat on the Notice of
Administrative Revocation and instead had signed the Certified
Statement of Dismissal and (b) the procedure in HRS § 2916,
Part III, which requires a valid chemical test result or refusal
to confer jurisdiction on the ADLRO, had apparently been
disregarded; (5) the court erroneously upheld the revocation when
HPD Form 3968 (a) informed Custer that operating a vehicle on a
public street meant that he had consented to a blood or breath
test, but failed to tell him he had a right to withdraw that
consent, (b) erroneously implied that the only issue in an
administrative revocation is whether a test is over .09 or is
refused, and (c) failed to inform Custer that the word “vehicle”
Includes a “vessel” and “moped”; (6) the court erred in holding
that HRS § 291-34(a) (2) was not violated in view of the fact
that HPD Form 3968 does not adequately explain the distinction
between administrative revocation and criminal suspension; and
(7) the hearing officer reversibly erred in citing to unpublished
district court ADLRO decisions to justify her decision. Custer
requests that this court reverse the decision of the court
upholding Custer’s driver's license revocation and order that
Custer's driver's license be returned to hin.
ve
“ ‘Review of a decision made by a court upon its review
of an administrative decision is a secondary appeal. The
standard of review is one in which this court must determine
whether the court under review was right or wrong in its
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Sse
decision.’” Freitas v. Admin, Dir, of the Courts, 108 Hawai'i
31, 43, 116 P.3d 673, 685 (2005) (quoting Soderlund v. Admin.
Dir. of the Courts, 96 Hawai'i 114, 118, 26 P.3d 1214, 1218
(2001)) (internal quotation marks, citations, and brackets
omitted). “HRS § 291E-40 (Supp. 200(3]) governs judicial review
by the district court of an administrative revocation of a
driver's license by the Director." Id. (footnote omitted).
wephe interpretation of a statute is a question of law reviewable
de nove.'” Gray, 84 Hawai"l at 144, 931 P.2d at 586 (quoting
State v. Arceo, @4 Hawal'l 1, 10, 928 P.2d 843, 852 (1996)
(other citations omitted).
vr.
We have previously resolved the issues raised in
> ans § 2928-40 is the recodified version of HRS 286-260 (1993).
In provieion (a), ‘arrestee! waa substituted with ‘respondent’ and ‘offense’
was’ substitutes with “incident.” Section (d) was added to the new version
Eisigas, 108 Hawaii at 43 nelly 116 P.ad at 689 nll.
Re § 2926-40 states in relevant part as follow
Sadicial reviews procedure. (a) Tf the director
sustains the administrative revocation after an
adsinistrative hearing, the respondent . .. may file @
petition for Judicial review within thirty days after the
EGsinisteative nearing decision is mailed. The petition
Shall be filed with the clerk of the district court in the
Gletrict in which the ineigent occurred and shall be
Gcconpanied by the requires filing fee for civil actions,
ici ine sole issues before the court shall be whether
the aizector:
i) Exceeded constitutional or statutory authority:
(2) Erroneously interpreted the laws
(3) Reted in an arbitrery or capricious manner;
(G) Committed an abuse of discretion; or
(5) Mace a determination that was unsupported by the
evidence in the record.
(a) the court shell not remand the matter back to the
dixector for further proceedings consistent with its order.
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arguments (1) (a), (1) (b), (2) (+ (2) (a), (3) (a) ¢ (3) (b) (3) Koy
(3) (a), (4) (bd, (5) (ad, (5) Cb), (5) CC), (6), and (7). See
‘Exeitas, supra, and Dunaway v. Admin, Dir, of the Courts, 108
Hawai‘ 78, 117 P.3d 109 (2005).
vit.
‘As mentioned, in arguments (2) (a) and (2) (b), Custer
maintains that the hearing officer (a) did not have the power to
increase Custer’s ‘revocation period from that set in the
administrative review, and (b) improperly considered Custer’s
subsequent DUI arrest as the basis for extending the revocation
period.* We conclude that Custer was correct with respect to
these arguments.
A
It is pertinent to first consider the relevant steps
involved in the administrative driver’s revocation process.
in interpreting HARDLA’s (Hawai'l Administrative
Revocation of Briver'# License Act] provisions, we must, of
necessity, observe sone established rules of statutory
Wen construing 2 statute, our forenost
cbligaticn' is to ascertain and give effect to the
IRtention of the legislature, which is to be obtained
primarily from the language conteinea in the statute
Efeelf. and we mat rea statutory language in the
Context of the entire statute and construe it ine
Banner consistent with its purpose.
ft Gvomusa, 60 Hawai'i [8,] 18-19, 90¢ F.2d (893,1
soso Casas
Gray, @4 Hawai's at 148, 931 P.2d at 590 (footnote omitted) .
Pursuant to HRS § 291E-34(b) (Supp. 2003), the notice of
+ Custer alse maintains that to allow an increased License
revocation period would penalize Caster for an offense for which he was not
Convicted but only arrested
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administrative revocation issued by the arresting officer refers
to the initial procedural step leading to administrative review
as follow:
(b) The notice, when completed by the law enforcenent
officer and iseved = = contaia 2
ia] | The date issued and the date the administrative
Favocation 18 scheduled to go into effects
tei" mat the iesuance of the notice of
Biaiitretivettevocatien will be
sginistratively reviewed
(Emphases added.) At the next stage denominated as
“administrative review,” the director is charged with
“review[ing]” the issuance of a notice and determining the
appropriate revocation period. HRS § 2918-37 provides in
relevant part:
‘
The dizector automatically shall review the
Tb) The respondent shall have the opportunity to
denonstrate in writing wiy the respondent’ s License and
privilege to operate a vehicle « .\. should not be
MGninistratively revoked and, within three days... shall
Supele eny written information... to the director's
office ss
igi ‘rf the director administratively revokes the
respondent's License and privilege to operate a vehicle,
‘the director shall mail a writen review decision to
leopondent ss ss The writen review decision shall
by
iz " indicate that the respondent has six days from
the date the decision 1s mailed to request an
(ininistrstive hearing to review the director's
decision:
hj ‘Faiture of the respondent to request @ hearing
within the time provided... shall cause the
Adninigizative revacation to take effect for the period and
SARA Enditions provided in the edsinistrative review
Secision issued by the director under this section.
(Emphases added.) HRS § 291-41 entitled “Effective date and
period of administrative revocation; criteria,” (emphasis added)
sets forth the different lengths of revocation periods that may
12
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—_—ssssssSsSSSSSSSSSSSSsSSses
be imposed by the director. It states that “[ulnless . . . the
temporary permit, and temporary motor vehicle registration and
temporary nunber plates if applicable, are extended by the
director, administrative revocation shall becone effective: on the
day specified in the notice of administrative revocation.” HRS
§ 2918-41 (a). The period of administrative revocation runs for
the period designated by the director pursuant to HRS § 2916-
41(b). With respect to the instant case, that section mandates
in relevant part that
[tlhe periods of administrative revocation with respect to #
License and privilege to operate a vehicle... thet shall
becinpssed under the part ace as follows:
ar of
‘OF lice
ind PELVS
year evocation,
SERS enitie, it the respondent’ s record
Shows ro pricr alcohol enforcement contact
drag enforcenent contact during the five
Prevesing the date the notice of acninistrative
Fevocation was sesued{ J
HRS § 2918-41(b) (emphases added). Hence, the foregoing
establishes that the administrative revocation period begins on
“the day specified in the notice” and, in this case, continu
for a period not less than three months nor more than one year
from that date as determined by the Director, inasmuch as the
driver's record apparently contained no enforcement contact
during the five years that preceded the date of the notice.
Under HRS § 2916-34 (c) (5) (Supp. 2003), the
acninistrative review decision 1s mailed to the respondent and,
as indicated in HRS § 2918-34(e) (9) (Supp. 2003), the decision
“shall contain” “the duration of the administrative revocation.”
Under the foregoing scheme, then, the period of revocation is set
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by the director during the administrative review process, subject
to objection by the driver.
Following mailing of the decision, HRS § 291E-34(f) (1)
(Supp. 2003) provides that the driver has six days within which
to request an adninistrative hearing. As noted above, if the
driver does not request an administrative hearing, HRS § 2918-
37(h) provides that the revocation “period . . . provided in the
administrative review decision issued by the director” “shall
«take effect.”
on the other hand, if the driver contests the
director's administrative review decision, HRS § 291E-38(a)
states that “[iJ£ the director administratively revokes the
respondent’s license . . . , the respondent may request an
administrative hearing to review the decision . . . (after the]
administration review decision is mailed.” Following the
hearing, HRS § 291E-38(j) designates the scope of the
administrative hearing decision as follows:
‘The director's decision shall be rendered in writing
Ie the decision is to averse the administrative revocation,
the director shall return the respondent's license. +
Ef the decision ugtains the sdninistrative revocation, the
director shail sail to the respondent a written decision
Gndicating th wocation and
any other conditions or rererictions ag nay ba iabesed
sion 20ie4i.
(Emphases added.)
As indicated previously, the revocation period is
imposed under section 291E-41 by the director as part of the
“administrative review” process, not as part of the
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ee
“administrative hearing process.” This comports with the purpose
of the administrative hearing as a “review” of the director’s
wreview decision” as stated in HRS § 291E-38(a). Accordingly, in
the administrative hearing the administrative review decision may
either be “revers[ed)” or “sustain(ed]” ai
indicated in HRS
§ 2918-38(3). “Reverse” is defined as *[t]o overthrow, vacate,
set aside, make void, annul, repeal, or revoke(,]" Black's Law
Dictionary 1319 (6th ed. 1990), and is used, for example, “as, to
reverse a judgment sentence or decree of a lower court by an
appellate court {.]” Id, “Sustain” is defined as “[tlo affirm,
uphold or approve, as when an appellate court sustains the
decision of a lower court.” Id. at 1447. Hence, the
adainistrative hearing decision may only nullify the director’s
administrative review decision or affirm it.’
HRS § 2918-38(e) mandates that the hearing officer
“shall affirm” the “administrative revocation” if certain
criteria are satisfied." “Affirm” is defined as “[t]o ratify,
+ nde the manner of disposition following the hearing is Limited
by ans § 2918-36(e) and {3}, HRS § 2918-8 provides for # hearing comporting
Wleh due process although not strictly “de novo.” Sea Freitas, 108 Hawat't a
44, Le Psa at 686.
© tn relevant part, HRS § 2918-38(e) states
‘the director shall affirm the adninistrative
revocation only if the director determines that:
2)” “There existed reasonable suspicion to stop the
vonicle ss 7
(2) There existed probable cause te believe that the
Tespondent operates the vehicle while under the
influence cf an intoxicant; and
(3) The evidence proves by a preponderance that.
(a) The respondent operated the vehicle while
Under the influence... 7 OF
(s) The respondent operated the vehicle and,
(continued...)
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Sees
uphold, approve, make firm, confirm, establish, reassert.”
Black's law Dictionary at 59. Thus, in “the practice of
appellate courts, to affirm a judgment, decree, or order, is to
declare that it i valid and right, and must stand as rendered
below; to ratify and reassert it; to concur in its correctness
and confirm ite efficacy.” Id, (emphases added). Analogously,
Af the written decision affirms the administrative review
decision, it must be as that decision was rendered by the
director in the administrative review. This is buttressed by the
provision in HRS § 2918-37(h), see supra, that if the driver does
not request a hearing, the administrative revocation period “to
take effect” is that contained in “the administrative review
decision issued by the director.” Thus, as Custer argues,
nothing in HRS § 291E, Part III, “authorizes a hearing officer to
increase the period of revocation that was set in the
administrative review." Accordingly, no statutory authority
exists in the statutes to modify the director’s determination of
the revocation period that took place during the administrative
review process.
virr.
‘The Director, citing to Gray, argues that an increase
in an administrative revocation period is permissible where the
hearing officer “'state(s] on the record his or her reasons for
after being informed of the sanctions of
{s\part, refused to subsit to 2 oresth,
Blood, oF urine test.
16
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determining that the extended period is necessary for the
protection of the public interest’” and that the h
ring officer
did just that. Gray, 84 Hawai'i at 161, 931 P.2d at 603 (quoting
State v. Okumura, 7€ Hawai'i 263, 413, 894 P.2d 80, 110 (1995)
(citation and internal quotation marks omitted)) (brackets
omitted). In Gray, the appellant’s driver's license was revoked
for life, pursuant to former HRS § 286-261(b) (4) (1993),
“following his fourth ‘alcohol enforcement contact’ within the
ten years preceding the date of his arrest for DUI that
precipitated this appeal.” Id. at 140-41, 931 P.2d at 582-63.
‘The appellant’s lifetime administrative revocation was
subsequently affirmed by a hearing officer of the ADLRO and the
district court. Id.
at 141, 931 B.2d at 583. On appeal to this
court, the relevant issue was whether and to what extent the
director was authorized to determine the periods of
administrative driver's license revocation under HRS § 286-261
(1993). Id, at 148, 931 P.2¢ at 590.
‘This court held that “the Director is accorded the
discretionary authority to increase the minimum periods of
administrative revocation for ‘non-refusing’ arrestees (those
larrestees who have consented to a BAC test and failed it).” Id.
at 160, 931 P.2 at 602. The “Director's discretion{] . . . to
increase [such] periods . . . pursuant to HRS § 286-261(b) [was]
‘capped’ by the mandatory and nondiscretionary periods enumerated
in HRS § 286-262(c).” Ids at 160-61, 931 P.2d at 602-03
(footnote omitted). Furthermore, “where the Director does
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exercise the discretion, accorded by HRS § 286-261(b), to extend
the period of administrative revocation, the Director must state
on the record [his or her) reasons for determining that (the
extended period] is necessary for [the] protection of the public
[interest] and . . . (to) enter into the record all findings of
fact which are necessary to (his or her} decision.” Id, at 161,
931 P.2d at 603 (emphasis in original) (internal quotation marks
and citations omitted).
However, Gray does not suggest that the director may in
an adninistrative hearing held pursuant to HRS § 2918-38,
consider an offense, occurring after the HRS § 2918-31 notice of
administrative revocation had been issued, as a basis for
increasing an administrative revocation period already determined
on administrative review by the director under HRS §§ 2916-37 and
2918-41. As discussed supra, the statutes indicate the director
4s vested with discretion to increase the revocation period as
part of the administrative review process, not in the
administrative hearing process. Moreover, the potential length
of revocation appears premised “on [the number of) prior
enforcement contact (s]” during the designated period “preceding
the date the notice of administrative revocation was issued.”
HRS § 291E-41(b). Hence the director’s revocation period
determination is circumscribed by that period of time preceding
the date of the revocation notice, in this case, January 6,
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eee
2003." In increasing the revocation period fron three to six
months, then, the hearing officer, in acting for the Director,
see aupra note 2, exceeded the statutory authority granted the
Director."
‘The court accordingly committed reversible error in
sustaining the hearing decision in its entirety. See HRS § 2916-
40 (stating that the court may determine “whether the
director[ e]xceeded . . . statutory authority[ or e]rroneously
interpreted the law”). It is therefore ordered that the judgment
shall be amended by affirming the Director's hearing decision,
except that the additional three-month revocation period relating
to Custer’s March 7, 2003 arrest is reversed.
mK.
In argument (4) (a), Custer contends that ADLRO did not
have jurisdiction to hold 2 valid hearing because Chung, the
arresting officer, signed the Certified Statement of Dismissal
portion of the notice. Custer argues that “[iJt should be self
evident that the police may not inform a driver that the
administrative revocation proceeding against him ‘had been
8 tn Light of the plain language of the statutes, we need not reach
the Director's argument thet’ "nothing in the Due Process Clause prohibits an
Sriginal penalty from being increased st a later stage, based upon anti-social
Schavicr perusing after the orianal penalty was imposed(.) Cf, North
Caroline te -Pearse, 392 U.S. 71, 128-26 (1969), . . . gverruled on other
‘Gesingy Alabama v. Smith, 490 01s. 794 (1989).* "(inphasie in original).
Assuming, axauende, 9 case in which driving without a license hed
been establishes such conduct ia subject to criminal penalty, See HRS
$ 2518-62 (Supp. 2003]. We express no opinion in this case as to whether such
Sonduet falling within a preceding designated period under HRS § 2918-41,
ould be a basis for increasing the revocation period in the director's review
proce:
19
++#7OR PUBLICATION*#*
terminated with prejudice’ and then the ADLRO may claim that they
have jurisdiction to revoke his license.” The Director counters
that Custer could not have been misled by the misplaced signature
because Chung “did not check the box next to the language
regarding termination, quite unlike his checking of the other
boxes on the form." Furthermore, according to the Director,
custer “signed and thereby acknowledged receiving page 1 of the
Notice, . . . , which expressly details that he is being
subjected to the Administrative Revocation Process, that his
License is being terminated thirty days later, and that his
License must be surrendered in exchange for a temporary permit”.
It is evident that the police did not terminate the
proceedings because the places on the notice that were marked
indicated that Custer would face an administrative licens
revocation. Chung also forwarded the required documents for an
administrative review. Thus, we are unpersuaded by Custer’s
argument. As stated on the notice,
You are the respondent in this adsinistrative
processing, Pursuant to the Adainistrative Revocation
Process, Chapter 2018, Pare 112, [lRS], your License and
privilege te operate 4 vehicle in the State of Havel‘ oF on
Erin the waters of the State are terminated...
You were arrested for operating a Vehicle Under the
Influence of an intoxicant in violation of HRS S 2918-61,
arrestin ap aD rary Bes
you
(Boldfaced font in original.) (Emphasis added.) Custer had to
surrender his license, He was issued the Temporary Permit. The
Certified Statement of Dismissal states in relevant part that
20
FOR PUBLICATION
“[tihis certifies that the administrative revocation proceeding
against you has been terminated with prejudice and that your
driver's license and motor vehicle registration and license
plates, if applicable, have been returned to you (1) because your
alcohol concentration test result was less than .08. . . .” The
record indicates that Custer’s BAC was .15 and, thus, not “less
than .08." If the proceeding had been terminated with prejudice,
Custer’s driver's license would have been returned. Plainly the
revocation proceeding had not been terminated. As such, we hold
that argument (4) (a) is not meritorious.
x
Therefore, the July 16, 2003 judgment of the court is
affirmed, except that that part of the judgment relating to an
additional three-month revocation period arising from the
March 7, 2003 arrest of Custer is reversed.
on the briefs:
Earle A. Partington for H
petitioner-appellant.
Bere Ibis moon
Girard D. Lau, Deputy
Attorney General, for
tespondent=-oppetiee. Panes borate ere
pm
Gone. Dillye th -
21
|
181ed308-6759-4b3a-b615-91e25939a496 | Taomae v. Lingle. S.Ct. Order of Correction, filed 09/02/2005 [pdf]. S.Ct. Opinion | hawaii | Hawaii Supreme Court | ***POR PUBLICATION***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00---
PATRICK Y. TAOMAE, BARBARA L. FRANKLIN, GENE BRIDGES,
NAN KAAUMOANA, A, JORIS WATLAND, GEORGE HARRIS,
HACKSOON ANDREA LOW, ESTHER SOLOMON, ‘RICHARD G. CHISHOLM,
MICHAEL J. GOLOJUCH, CHRISTOPHER A." VERLEYE, HEATHER K.L.
CONAHAN, JULIET BEGLEY, PAMELA G. LICHTY, SHERYL L.
NICHOLSON, ERIC G. SCHNEDIER, CAROLYN M. GOLOJUCH,
COLIN YOST, WILLIAM AL HARRISON, NORMAN V. BODE, RODNEY 5.
AIU, RICHARD C. JACKSON, THEODORE N. ISAAC, MARK R. EWALD,
REV. MICHAEL G. YOUNG, PAULA F. MYERS, LOUIS ROSOF, JOAN H.
RICH, SUSAN L. ARNETT, PAMELA O'LEARY TOWER, DAVID
BETTENCOURT, LUNSFORD DOLE PHILLIPS, MARY ANNE SCHEELE,
RAYMOND SCHEELE, ROBERT P. MCPHERSON, JEAN A. EVANS,
DONALD E. EVANS, and ARTHUR E. ROSS, Plaintiffs
vs.
LINDA LINGLE, in her official capacity as Governor
of the State of Hawai'i; and DWAYNE D. YOSHINA, in
his official capacity as Chief Election Officer
for the State of Hawai's, Defendants
No. 26962
ORIGINAL PROCEEDING £
SEPTEMBER 1, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
QRINION OF THE COURT BY ACOBA, J.
We conclude that articles IIT and XVII of the Hawai'i
Constitution require that (1) a proposal to amend the
constitution must be reflected in the title of the bill and (2) a
Proposed constitutional amendment must be read three times in
each house to be validly adopted. For the reasons stated herein,
We determine that House Bill 2789, House Draft 1, Senate Draft 1,
aye
*#+#FOR PUBLICATION*
2004 Haw. Sess. L. Act 60 at 301 (hereinafter, H.B. 2789, H.D. ty
$.0. 1] violated these requirements.
sa
tn this original proceeding, thirty-eight! registered
yoters of the State of Hawai'i (collectively, Plaintiffs)
challenge the passage of H.B. 2789, H.D. 1, 5.0. 1, which
proposed) = constitutional amendment to allow the (Hawai's
Becke'Leglelatore. (legislature)] to define what behavior
seefitetes a contineing course of conduct in sexual assault
SGes fend) anend[ed) the law defining continuous sexual
asesuit of 2 minorl.]
See Complaint at 2, 12.7 Plaintiffs contend that this bill was
not validly adopted because its title was insufficient and
because the constitutional amendment did not receive three
readings in each house of the legislature. Plaintiffs thus seek:
a declaratory judgnent that H.B. 2783, H.D. 1, 5.0, 2 was not
validly passed and, therefore, should not have been signed by
pefendant Governor Linda Lingle (Governor Lingle) or submitted to
the voters in the Noverber 2, 2004 general election; an
injunction prohibiting Governor Lingle and Defendant Dwayne D.
Yoshina, Chief Elections Officer (collectively, Defendants) fron
certifying any votes cast on Question 1 (pertaining to H.B. 2769,
+ the Plaintiffs are Patrick ¥. Taonse, Barbera L. Franklin, Gene
Bridges, Nan’ Rasunosne, A. Joris Wetland, George Harris, Haksoon Andres Low,
Either Solenon, Richard 6. Chisholm, Michael J. Golojuch, Christophe: A.
Gerleyes Heather Kote conahan, Juliet Begley, Panola G. bichty,, shery2 1.
Miholscn tris Ge schneider, Carolyn M. Golojuch, Colin Yost, Wiliam 4.
meeeTesee’ Norman V. Bode, Rodney E. Alu, Richard ¢. Jackson, Theodore W-
Hee ee oR Gusid, Rev. Michael G- Young, Peula £. Myers, Louis Koso, Joan
Ae Alger Susan be Arnett, Famela O'Leary Tower, David Bettencourt, Lunsford
BaS'Sialiger Mary Anne’ Scheele, Raymond Scheele, Robert P. Mctherson, Jean
A. Evans, Donaad E. Evans, and Arthur £, Ros:
Because this is an original proceeding, there is no record on
1. The beste facts are not disputed by the parties
op
2
FOR PUBLICATION***
HD. 1, S.D. 1) in the November 2, 2004 general election; an
injunction prohibiting Defendants from allowing Question 1 to be
printed or published as part of the Hawai'i Constitutions
attorneys’ fees and costs? and such other relief as this court
may deem just and proper.
Defendants respond that H.8. 2789, H.D. 1, S.D. 1 was
properly enacted because the legislature followed the procedure
set forth in articles IIT and XVII of the Hawai'i Constitution.
Article III, entitled “The Legislature,” provides in pertinent
part:
ach lan shall sibrace but one subiect, which ehall be
Seoressed in ita title, The enacting clause of each law
Shell be, “Be it enacted by the legislature of the state of
PASSAGE OF BILLS
Section 15.
Ng biLL shall become lax undess is _shald
bass three readinas in each house on separate ces. No bil?
Theil pase third or final reading in either house une,
printed copies of the bill in the form to be passed shall
fave been sade available to the menbere of that house for at
Teast’ forty-eight hours
Every bi2 when passed by the house in which st
originates, of in uhich anendnents thereto shall he
Originated, shall innediately be certified by the pr
officer and clerk and sent co the other house for
Consideration
Ading
Any bill pending at the final adjcurnsent of a regular
sston in an odd-numbered year shall carry over with the
Zane status to the next regular session. Before the
Garried-over bill is enacted, it shall pase at least one
Feeding in the house in which the bill originated.
(Emphases added.) Article XVII, entitled “Revision and
Amendment,” provides in pertinent part:
AMENDVENTS PROPOSED BY LEGISLATURE
Section 3. The legislature may propose anendnents to
he constitution by adesting the sane; in the manner
xemuixed for leaielation,
z by a twontniFas vote of each house
Sn final reading at any session, after either or beth houses
Shall have given the governor at least fen days" written
FOR PUBLICATIO!
notice of the final form of the proposed amendnent, or, with
Drruienout such notice, by 2 majority vote of each’ house on
Gindl reading at each of two successive sessions.
Upon such adoption, the proposed anendnents shall be
entered upon the journala, with the ayes and noes, and
Bubilened once in each of four successive weeks in at least
Bae newepeper of general circuletion in each senatorial
Stectice wherein such a newepaper is published, within the
Gistmonens’ period immediately preceding the next general
electicn.
At such general election the proposed amendments shall
be submitted te the electorate for approval or rejection
pon 2 separate ballot.
‘the conditions of and requirenents for ratification of
such proposed ancnonente shall be the same ss provided in
Best this article for ratification at @ general
(Emphasis added.)
Defendants also maintain that the process by which H.B.
2789, H.D. 1, SD. 1 was approved was in conformity with the past
practice of the legislature, which had not been previously
challenged. ‘They assert that Plaintiffs cannot show a “grave
offense” to the constitution and, therefore, urge this court to
give deference to the legislature’s interpretation of the
constitutional requirements for passing a constitutional
amendment.
The legislature submitted an amicus brief echoing the
arguments of Defendants, According to its brief, the legislature
approved H.B, 2789, H.D. 1, SD. 1 in compliance with the
language of the Hawai'i Constitution and with this court’s
decision in Watland v. Lingle, 104 Hawai" 126, 140, 85 P.3d
1079, 1091 (2004), which held that clear and unambiguous
constitutional provisions must be construed as they are written.
The legislature further asserts that a decision favorable to the
“FOR PU
Plaintiffs in this.case would “interfere with the Legislature’ s
normal course of business(.)”
In
H.B. 2789 was introduced in the legislature in response
to this court's decision in State v. Rabage, 103 Hawai'l 236, 61
P.3d 1151 (2003). In that case, a majority of this court struck
down Hawai'i Revised Statutes (HRS) § 707-733.5(2) (Supp. 2002)”
because it infringed on a defendant’s constitutional right to s
unanimous jury verdict under article I, sections 5* and 14° of
+ ps § 707-733.5, entitled “continuous sexual assault of a minor
under the age of fourteen years,” states, in pertinent part
(2) Any person who:
fa} Either resides in the same hone with a minor
Under the age of fourteen years OF has recurring
access to the minor and
(o) Engages in three or more acts of sexual
pesetration or sexsel contact with the minor
Byer a period of time, but while the minor is
Geser the age of fourteen years,
ke guiity of the offense of continuous sexual assault of 6
incr under the age of fourteen years.
{2) fo convict under this section, the trier of fact,
ita gary, t
<7 he net
Mich acts conapitute the requisite qusber.
(imphasis added.)
© grticie 1, section 5 of the Hawai'i Constitution, entitled "Dve
Process and Equal Protection,” state:
to person shall be deprived of life, Liberty or
property without due process of lav, nor be denied the equel
Frotection of the laws, nor be denied the enjoyment of the
Person's civil rights or be discriminated against in the
Exercise thereof Because of race, religion, sex or ancestry.
+ article 1, section 14 of the Hawas'i Constitution, entitled
Rights of Accused,” states:
tn ll criminal prosecutions, the accused shall enjoy
the right ‘to s speedy snd public trial by an impartial jury
of the district wherein the crime shalt have been committed,
hich district shall have been previously ascertained By
Shu cr of such cther district to which the prosecution may
be renoved with the consent of the accused; to be informed
(continued.
*+4POR PUBLICATION***
the Hawai'i Constitution, inasmuch as it did not require the jury
to agree on which three specific acts constituted the “continuous
sexual assault.” Id, at 253-54, 81 P.3d at 1168-69.
on January 28, 2004, 4.8, 2789 was introduced in the
House of Representatives as “A Bill for an Act Relating to Sexual
Assault.” It passed its first reading on the same day. H.B.
2789 proposed to amend HRS § 707-733.5(2) to read, “To convict
under this section, the trier of fact, if a jury, need not
unanimously agree that all of the alleged acts have occurred
provided that the jury agrees on which acts constitute the
requisite number.”
The amendment was intended to harmonize HRS § 707-
733.5(2) with the decision in Rabage. On February 23, 2004, H.B.
2789 was amended upon the advice of the House Committee on
Judiciary and designated H.B. 2789, H.D. 1. These amendments did
not affect the proposed changes to HRS § 707-733.5(2). On
February 23, 2004, H.B. 2789, H.D. 1 passed its second r}
\ding in
the House of Representativ
on February 25, 2004, H.B. 2789,
H.D. 1 passed its third reading in the House of Representatives
by @ vote of forty-nine to zero with two members excused.
% continued)
‘of the nature and cause of the accusation; to be confronted
With the witnesses against the accused, provided that the
Yegislature may provide by law for the inadnissibility
privileged contitential communications between an alle
Eine victim ond the alleged crine victin's physician,
psychologist, counselor of Licensed mental health
Professional; co have conpulsory process for obtaining
Mlenesses in the accused's favor) and 0 hat sistance
Of counsel for the accused's defense. Juries, es
Crime charged s# serioas, shall consist of twelve persons.
‘The ‘State shall provige Counsel for an indigent defendant
Charged with an offense punishable by imprisonment.
6
“FOR PUBLICATION’
on February 26, 2004, H.B. 2789, H.D. 1 passed its
first reading in the Senate. On March 31, 2004, the Senate
Committee on Judiciary and Hawaiian Affairs submitted a report
agreeing with the Attorney General’s opinion that it was
necessary to amend the Hawai'i Constitution in order for the
legislature to effectuate the statutory amendment because the
change proposed in H.B. 2789, H.D. 1 did not “do anything to
avoid the Rabage decision.” The committee recommended that the
bill be amended by “{aldding @ constitutional amendment to allow
the Legislature to define what behavior constitutes @ continuing
course of conduct in sexual assault crimes[.]” The bill was so
amended and designated as H.B. 2789, H.D. 1, S.D. 1. As amended,
the bill stated in pertinent part,
SECTION 1. The purpose of this Act is to propose an
anendment to article 1 of the Constitution of the Sts
Hawaii co provide that the legisleture may define wnat
Denavicr constitutes & continuing course of conduct in
Benue] aseaule crines and to anend the Hawaii penal code to
Statutorily define the behavior.
eof
SECTION 2. Article T of the Constitution of the State of
Rewall is anended by adding a new section to be
appropriately designated and to read as follows:
“SEXUAL ASSAULT CRIES
Section . The legislature may define what behavior
Constitutes @ continuing course of conduct in sexvel assault
2004 Haw. Sess. L. Act 60, $§ 1-2 at 301, On March 31, 2004,
HB. 2789, H.D. 1, S.D. 1 passed its second reading in the
Senate. On April 2, 2004, H.B. 2789, H.D. 1, S.D. 1 passed its
third reading in the Senate by a vote of twenty-three to zero
with two menbers excused. On the same day, H.B. 2789, H.D. 1,
5.0. 1 was certified by the Senate President and Senate Clerk as
*++FOR PUBLICATION***
having passed the Senate and was sent back to the House of
Representatives for consideration. On April 5, 2004, the House
of Representatives informed the Senate that it disagreed with the
amendments proposed by the Senate in H.B. 2789, #.D. 1, S.D. 1.
2004 Senate Journal at 508.
on April 6, 2004, the Senate sent notice of the final
form of H.B. 2789, H.D. 1, .D. 1 to Governor Lingle as required
by article XVIZ, section 3 of the Hawai'i Constitution. On April
8, 2004, menbers from both the Senate and the House of
Representatives were appointed to a conference committee to
consider the amendments proposed in H.B, 2789, H.D. 1, $.D. 1.
2004 House Journal at 764, 793. As acknowledged by counsel at
oral argument, the conference conmittee did not issue a report.
on April 22, 2004, the House of Representatives (1) advised
Governor Lingle that the conference managers on the part of the
House of Representatives agreed to the amendments proposed by the
Senate and (2) sent notice to Governor Lingle of the final form
of H.B. 2789, H.D. 1, S.D. 1 to be considered for final reading
by the House of Representatives as required by article XVII,
section 3 of the Hawai'i Constitution. 2004 House Journal at
1063.
on April 26, 2004, H.B. 2789, H.D. 1, S.D. 1 passed its
final reading in the House of Representatives by a vote of forty-
four to zero with seven members excused. Thereafter, the House
informed the Senate that it had agreed to the amendments made and
that the bill had passed final reading in the House of
#**FOR PUBLICATION***
Representatives. 2004 Senate Journal at 715. On April 27, 2004,
H.B. 2789, H.D. 2, S.D. 1 wi
nt to Governor Lingle.
H.B. 2789, H.D. 1, $.D. 1 was presented to the voters
as Question 1 at the November 2, 2004 General Election. It wai
one of four proposed constitutional amendments submitted to the
electorate. A total of 282,852 voters (65.68) voted in favor of
Question 1. On the other hand, 148,152 voters (34.4%) voted
against Question 1 or left the question blank.
qin.
on October 15, 2004, eight Plaintiffs involved in this
case filed a related suit! in the Circuit Court of the First
Circuit (circuit court case).’ The circuit court case sought,
inter alia, (1) a declaration that the final bill was not
properly adopted by the legislature and, therefore, should not
have been signed by Governor Lingle and submitted to the voters
at the November 2, 2004 general election and (2) an injunction
prohibiting Defendants from placing Question 1 on the November 2,
2004 ballot, disseminating voter information concerning Question
and tabulating or certifying any votes cast on Question 1.
plaintiffs also filed a motion for a temporary restraining order,
which was denied on October 26, 2004.
on Novenber 22, 2004, Plaintiffs filed their complaint
in this matter. On November 23, 2004, Defendants filed their
+ Seq Taomae v. Lingle, Civ. No. 04-1-1689-10,
‘The Honorable Victoria S. Marks presided.
9
*+*FOR PUBLICATION***
answer. On January 21, 2005, Plaintiffs filed their opening
brief. On March 4, 2005, Defendants filed their answering brief.
on March 17, 2005, the legislature filed its amicus brief. on
March 18, 2005, Plaintiffs filed their reply brief. on July 12,
2005, Plaintiffs filed a request for judicial notice of several
undisputed facts. On July 14, 2005, this court heard oral
argument! and, at that time, Chief Justice Moon orally granted
the request for judicial notice on behalf of the court without
objection.
Ww.
As mentioned previously, Plaintiffs challenge the
validity of the passage of H.B. 2789, #.D. 1, S.D. 1 and its
presentation to the electorate in the 2004 general election.’
The present case is not a typical “election contest” that is
reviewed pursuant to HRS § 11-172 (1993). This court has
jurisdiction over cases challenging the validity of
constitutional amendnents presented to the voters at a general
election under HRS chapter 11, Part XI,"° HRS § 602-5(6) (1993),
+ tote Pereiny Anerican Civil Liberties Union, argued for the
Plaintiffs. Also present for the Plaintiffs was Earle A. Partington. Mark J.
Bennett, Actorney General, State of Hawal"t, argued for Defendants. Also
present for Defendants was Charleen 4. Alna, Deputy Attorney General.
* Because this is an original proceeding, there is no standard of
* HRS chapter 11, Pert XI governs elections.
ns § 602-5(6) confers the authority upon this court to "make or
Assue any order or writ necessary of appropriate in aid of its appellate or
original surisaietion, and in such case any justice may iesue 8 writ or an
order to show cause returnable before the suprene court.”
10
)R PUBLICATION*
and HRS § 602-5(7) (1993). Watland, 104 Hawai'i at 133 n.8, 135
n.12, 85 P.3d at 1084 n.8, 1086 n.12; Kahalekai v. Dol, 60 Haw.
324, 330-31, $90 P.2d $43, 548-49 (1979). Because the basis for
jurisdiction over this manner of election challenge is not HRS
$ 11-172, the burden of proof is different; the complaint does
not need to allege that different action by Defendants would have
affected the outcome of the election,'? nor are Plaintiffs
required to prove such an allegation in order to prevail.
Matland, 104 Hawai"i at 134-36, 85 P.3d at 1085-87.
This court has stated that constitutional amendments
that have been approved by the voters “will be upheld unless they
can be shown to be invalid beyond a reasonable doubt.”
Kehalekai, 60 Haw. at 331, 590 P.2d at 549 (citing Keenan vw.
Brice, 195 P.2d 662 (Idaho 1948); City of Raton vs Sproule, 429
P.2d 336 (N.M. 1967)). “The burden of showing this invalidity is
upon the party challenging the results of the election.”
Watland, 104 Hawai'i at 133, 85 P.3d at 1084, “(T]he infraction
BRS § 602-5(7) authorizes this court to “make and award such
decrees, orders and nandstes, issue such executions
; and do such other acte end take such other stepe a:
y'to carry into full effect the powers which are or shall be given to
30 oF for the promotion of justice in matters pending before it
a “typical” election challenge, which would be reviewed pursuant
to the standards ‘set forth in HRS § 11-172, would be one in which « candidate
fed that the election procedure was flawed in sone wey as 0 cause tht
Candidate to lose, HRS § 11-172 states, in pertinent part, that "(t]he
complaint shall set forth any cause or causes, such as but not limited to,
provable fraud, overages, or undersges,
lection resulia.” (Emphasis added.) Sea, eca., Akaka ¥- Voshing, 6¢ Havel
385, 384-65, 959 P.2d 98, 99-100 (1997) (candidates for Office of Hawaiian
Affairs Trustee positions contended thet ballots were mishandled). This court
has determined that such suits are inapposite to cases like the one at bar, in
Which a constitutional amendment that has been presented to the voters at
General election is disputed. Matland, 10¢ Hawsid at 124-25, BS Pad
oss-86.
“FOR PUBLICATION***
should be plain, clear, manifest, and unnistakable.” Blair v
Gavetane, 73 Haw. 536, 541-42, 836 P.2d 1066, 1069 (1992)
(brackets in original) (quoting Schwab vs Ativoshi, S@ Haw. 25,
31, 564 P.2d 135, 139 (1977)). Thus, Plaintiffs must prove
beyond a reasonable doubt that the process by which H.B. 2789,
H.D. 1, S.D. 1 was passed in the legislature was a “plain, clear,
manifest, and unmistakable” violation of article III, sections 14
and 15 and article XVII, section 3 of the Hawai'i Constitution.
State ex rel. Bronster v. Yoshina, 84 Hawai'i 179, 166, 932 P.26
316, 323 (1997).
In this regard, constitutional provisions regarding
constitutional amendments are not directory, but mandatory, and
wsatrict observance of every substantial requirement is essential
to the validity of the proposed amendment.’” Blair, 73 Haw. at
543, 036 P.2d at 1070 (quoting Andrews vw, Governor of Marviand,
449 A.2d 1244, 1146 (Md, 1982) (citations omitted)). Therefore,
Sf plaintiffs can show that even one “substantial requirement”
was violated, they have satisfied their burden of proof;
Plaintiffs need not demonstrate that the results of the election
would have been different if the requirement had been fulfilled.
v
“In interpreting constitutional provisions, the general
rule is that, if the words used in a constitutional provision
|... are clear and unambiguous, they are to be construed as they
are written.” Hatland, 104 Hawai'i at 139, 85 P.3d at 1090
(internal quotation marks, citations and brackets omitted). We
2
***POR PUBLICATION*
believe the words in article III, sections 14 and 18 and article
XVII, section 3 are clear and unambiguous. Because these
provisions regulate the procedure by which the constitution is
amended, failure to strictly comply with the requirements of
these sections invalidates a proposed constitutional amendment.
The plain and unambiguous language of article XVII, section 3
requires that a constitutional amendment first be proposed by the
legislature. The clear and unambiguous language of article III,
section 15 requires that a proposal for a constitutional
amendment be subjected to three readings on different days in
each house.
We conclude that H.B. 2789, H.D. 1, S.D. 1 did not
conform to the procedures set forth in the Hawai'i Constitution
for two reasons. First, the proposed amendment was not titled as
a constitutional amendment pursuant to article XVII. Second, the
Proposal to amend the constitution was not subjected to three
readings in each house as article XVII, section 3 requires.
vr.
As indicated before, article XVII, section 3 provides
that “[t]he legislature may propose amendments to the
sonatitution(.J” (Emphasis added.) Given its ordinary meaning,
“propose” means “to put forward for consideration.” Merriam
Webster's Colleciate Dictionary 936 (10th ed. 1993). Under
article XVII, section 3, such proposals must be “adopt(ed) . .
in the manner required for legislation.” One of the requirements
for the passage of legislation is that the subject of the bill
1B
FOR PUBLICATION:
“shall be expressed in its title.” Haw. Const. art. III, $14
(emphasis added). The term “shall” is ordinarily used in @
mandatory sense. See Coon v. City & County of Honolulu, 98
Hawai'i 233, 256, 47 P.3d 348, 371 (2002) ("The use of the word
‘shall’ in the context of [Revised Ordinances of Honolulu § 38-
5.2/8] award of ‘actual out-of-pocket expenses’ is clearly
mandatory.”); Schefke v, Reliable Collection Agency, Ltd, 96
Hawai'i 408, 451-52, 32 P.3d $2, 95-96 (2001) (“HRS $§ 388-11(c)
and 378-5 . . . mandate an avard of attorney's fees to the
prevailing party by employing the word ‘shall’ [.]”
However, as noted in this case, the title of H.B. 2789
was “A Bill for an Act Relating to Sexual Assault” and did not
refer to a proposal to anend the constitution. Hence, despite
the mandates in article XVII, section 3 and in article III,
section 14, the title did not announce that @ proposal for an
amendment to the constitution was the subject of the bill, In
the absence of an indication in the title that the bill set forth
an amendment to be made to the constitution, the constitutional
amendment was not properly “put forward for consideration,” i.e.,
“proposeldi” by the legislature within the meaning of that term
as employed in article XVII, section 3.
While the title given H.B. 2789 upon its introduction
was sufficient under article III, section 14 with respect to a
statutory amendment, such a title was insufficient to “propose”
that the constitution be amended by H.B. 2789, H.D. 1, S.D. 1,
the final form of the bill. ‘The bill failed, therefore, to meet
4
*##FOR PUBLICATION***
the first requirement of article XVII, section 3, that is, that
the legislature “propose” the amendment as one to the
constitution.
vin.
Manifestly, there is no more effective or adequate
manner in which the legislature can fulfill its obligation to
“propose” to the electorate changes to the constitution than by
designating its action in the title of the bill as required under
article XVII, section 3 and article ITI, section 14. It is
essential that constitutional amendments be proposed as such
before they are considered in the legislature and presented to
the public for approval because “[p]rovisions of our Constitution
Constitutional
are of a higher order of law than statuti
provisions are more basic and permanent than statutes.” afford
vs Pemberton, 409 So. 2d 1367, 1373 (Ala. 1982) (per curiam). It
is imperative then that in the case of constitutional amendments
the purpose of a bill's title to “apprise the people of proposed
matters of legislation[,]” Schwab, 58 Haw. at 30-31, S64 P.2d at
139, is effectuated.
‘To that end, it is noteworthy that the other three
constitutional amendments proposed by the legislature and
ratified by the electorate in 2004 stated in their titles that
the bills were proposed constitutional amendments, thus adhering
to the directives of article XVII, section 3 and article III,
section 14. The bills were entitled, “A Bill for an Act
Proposing an Amendment to Article I of the Constitution of the
1s
***FOR PUBLICATION
state of Hawaii,” "A Bill for an Act Proposing Amendnents to
Article I, Section 14, of the Hawaii Constitution,” and “A Bill
for an Act Proposing an Anenduent to Article I of the
Constitution of the State of Hawaii.” (Emphases added.) The
titles of those bills provided the public with clear notice
concerning the nature and content of the legislation and, thus,
alerted the citizenry to the opportunity to legislatively conment
and debate those bills in a meaningful way. These bills
attracted fifty, thirty-four, and twenty pieces of written
testinony, respectively.
In contrast, H.B, 2789, H.D. 1, $.D. 1 attracted only
seven pieces of written testinony. Two of those pieces were
virtually identical submissions from the Attorney General
suggesting that the legislature add a constitutional amendment
giving itself the power to enact the statutory amendment. Two
other pieces of testimony were essentially verbatim submissions
from the Office of the Public Defender conveying its belief that
the statutory amendment did not remedy significantly the flaw
upon which the decision in Rabago was based.
‘As counsel confirmed in oral argument, because of the
manner in which the subject bill was amended and adopted, the
general public had no opportunity to provide comment in the
legislature on the proposed amendment itself. ‘The procedure
followed hereunder eliminated “the mature deliberation, amendment
and compromise usually necessary to produce sound and lasting
16
Legislation” contemplated by the framers.“ Stand. Comm. Rep.
No. 47 in 1 Proceedings of the Constitutional Convention of
Hawaii 1950 at 184. The words “in the manner required for
Legislation” in article XVII, section 3 instruct that, at the
Least, as to a constitutional amendment, the framers intended
that there must be public participation as ordinarily
contemplated in the case of statutory legislation. See infra
discussion.
viii.
Furthermore, based on the constitutional amendments
passed in 2004, it appears that the legislature's current
practice ig to designate in the title that a bill is a
constitutional amendment. See supra. “(W]hile . . . past
practice is not conclusively determinative in interpreting the
text of the constitution, it does factor into our analysis.”
Bronster, 84 Hawai'i at 190, 932 P.2d at 327. The predominate
practice of the legislature has been to entitle proposed
constitutional amendments with some version of the phrase,
“proposing an amendment to Article __ of the Constitution of
Hawai'i.”
As mentioned previously, the titles of the bills
“The Comittee on Revision, Anendnents, Initiative, Referendum and
Recall stated "All goot citizens must, to ome extent, neglect their everyday
their work and their business, to take part in these important
Brecesseal, elections and legislative sessions), whether it be to advocate
Good candidates or good lave, or oppose bad ones. This responsibility they
fore cheerfully accept as the price of Liberty and efficient goverment.”
Bland, Com, Rep, to” 47 in 1 Proceedings of the Constitutional Convention of
Howaii 1950. at 163.
7
***FOR PUBLICATION*
proposing the other three amendments ratified in the 2004 general
election expressly referred to constitutional amendments. See
text guora at 15-16. In the 1996, 1998, 2000, and 2002 general
elections, ten proposed constitutional amendments presented to
the voters for ratification were also entitled as proposed
constitutional amendments through the legislative process.
Thus, based on our analysis of the constitutional requirements
Between 1996 and 2002, ten constitutional anendnents presented to
the electorate for ratification were entitied az follows: "A Bill for an Act
Proposing an Anendnent to Article VIZ, Section 11, of the Constitution of the
State of Hawaii[,]" 1996 Haw, Sess. L. at 961, “A'Bill for An Act Proposing an
Anendnent to Article VII, Section i2, of the Hawaii Constitution, to Allow the
GSe"of Revenue Bonde for'the Funding’ cf @ State Property Insurance Program
Providing Hurricane Insurance Coverage(, 1” id at 982, "A Bill for an Act
Proposing an Anendnent to Article Vil, Section 3, of the Constitution, to
Provide for the Appointnent of a Tax feview Comission svery Ten Years,”
1997 Haw. Seas. Lat 1246, "A Bill tor an Act Proposing s Constitutional
Jmendment Relating to Marriagel,]” id. “A Bill for an Act Proposing an
Anendnent to Article X, Section 6 of the Hawaii Constitution te Provide the
Gniversity of Hawei! with Autonomy in All Matters Related to the
University(, 1” 2000 Haw. Sess. 1. at 2178, "A Bill for an Act Proposing an.
Anenanont to Article Vii, Section 3, of the State Constitution to erovide for
the lippointment of a Tax’ Review commiseion Every Ten Yeare(,]” i at 1179, "A
Bill for en Act Proposing an Amenduent to Article 1V, Sections 7 and 8, of the
Constitution of the state of Hawaii, to Stagger Senate Terme After
Reapportionment (,]* 2000 Haw. Seas, L. Act 1 at 1 (2d Special Sess.), “A Bill
for en Act Proposing an Anendsent to feticle iit, Section é of the Hamest
Constitution, to Change the Eligibility to Serve’ as a Menber of the Sonate oF
House of Representatives[,]” 2002 Haw. Sees. L. at 1021, and °A Bill for an
Ret Proposing Anendnents to Article Vit, section 12, and Article X, Section 1
of the Constitution of the State of Hawaii eo Authorize the State to Issue
Specisl Purpose Revenue Bonds and use the Proceeds from the Bonds to Assist
Not-For-Profit Private Elenentary Schools, Secondary Schools, Colleges, and
Universities.” Ig. at 1022.” The only amendment not entitled a 2 proposs)
between 1996 and 2002 was an onencment proposed in 1996 which was entitled “A
ELL for an Act Relating to School Construction Projects,” 1996 Haw. Seas. L
at 980.
Of these ten proposed amenduents between 1996 and 2002, the
relevant House ang Senate Journals are unclear a2 to whether two of these
Proposed amendments were given three readings in both houses of the
Hegisisture. As to the two said amendments, the respective Legislative
journals indicate that they were given second and third readings in the hous
here the amenanent originates. gee 2000 Senate Journal 1531 (3.8. 535, "%
Bill for an Act Proposing an hnendsent £0 Article %, Section 6, of the dawoii
Constitution, to Provide the University of Hawai! with Autonomy in All Matters
Relates to the University") and 2002 House Journal 1849 (Hi.3. Ko 1032, "A Bill
for an Act Proposing an Anendnent to Article Til, Section 6 of the Havait
Constitution, to Change the Eligibility to Serve as A Member of the Senate or
House of Representatives”). There is fo Indication of when these proposed
anendnents were introduced or when they received their first readings in the
Senate or House of Representatives, respectively.
#**FOR PUBLICATION"
set forth in articles III and XVII, including the predominate
legislative practice, we conclude that the failure to designate
HB, 2789, H.D. 1, S.D. 1 as a constitutional amendment in its
title was a plain, clear, manifest, and unmistakable violation of
the constitution beyond a reasonable doubt.
mk,
Defendants argue that there is no constitutional
provision which expressly directs the legislature to entitle
constitutional amendments in 2 certain way. They rely on the
language of article III, section 14 that the title of the bill
must “express” the single subject of the bill, in this case,
sexual assault. While that interpretation of article IIT,
section 14 is appropriate when applied to ordinary legislation,
it must be remembered that article XVII specifically governs
constitutional amendments.
Under article III, sections 14 and 15, statutes are
amended in the manner required for ordinary legislation. A
statutory amendment must be introduced, read three times in each
house, and passed by a sinple majority. Haw. Const. art. 12,
$5 13-15. In contrast, under article XVII, section 3, while
the legislature has the authority to propose a constitutional
amendment in a single session, the legislature cannot make that
amendzent law. In the single session process, a constitutional
% Article 112, section 13 of the Mawes" Constitution, entitied
“ouorumy Compulsory Attendsnce,” states, in pertinent pert, "the {inal pass2ge
of a bill in each Rouse. shail require the vote of @ majority of ali the
henbers to which such house de eititled, taken by ayes and foe and entered
‘upon its journal.”
9
**FOR PUBLICATION***
amendment can only be effected if it is proposed as such, given
three readings in each house, and meets the other requirements
set forth in article XVII. Haw. Const. art. XVII, § 3. The
critical distinctions between “enacting” ordinary legislation
pursuant to article III, section 14 and “proposing” a
constitutional amendnent under article XVII are exemplified by
the fact that constitutional amendments are governed by a
separate article.
Defendants cite to Schwab to support their proposition
that the title of H.B, 2789, H.D. 1, 8.D, 1 “embraced” the
subject matter of the entire bill. ‘They rely on the proposition
that the single subject requirement means that a bill's parts are
“so connected and related to each other either logically or in
popular understanding as to be parts of or germane” to the
subject expressed in the title. Schwab, 58 Haw. at 32-33, 564
P.2d at 140. However, as presaged above, Schuab is
distinguishable from the case at bar. In Schwab, this court
considered the requirements embodied in article III alone, id. at
30-39, S64 P.2d at 139-44; in this case, we construe the
requirenents of article III as incorporated in the specific and
separate provisions of article XVII. There was no constitutional
amendment at issue in Schwab; therefore, it is not dispositive in
the case at bar.
x
Additionally, in considering H.B. 2789, H.D. 1, $.D. 1,
the legislature failed to satisfy the requirenent set forth in
20
OR PUBLICATION***
article XVII, section 3, that a proposed constitutional amendment
be passed “in the manner required for legislation” because the
constitutional amendment, gee §§ 1 and 2 of the bill, did not
receive three readings in each house as required by article 111,
section 15. ‘The plain reading of article XVII, section 3
requires that a proposed constitutional amendment advance through
the processes set forth in article III, section 1, including the
requirement that “[nJo bill shall become law unless it shail pass
three readings in each house on separate days." Haw. Const. art.
III, § 15 (emphasis added) .”
In this instance, the constitutional amendment included
in H.B. 2789, H.D. 1, $.D. 1 received only three readings in
total. As previously stated, the bill in its final form,
including the constitutional amendment, was read and passed in
the Senate on March 31, 2004 and on April 2, 2004, and read and
passed in the House of Representatives only once, on April 26,
2004. This was a patent violation of article III, section 15.
Allowing constitutional amendments to be approved in this manner
precludes the public from participating in the legislative
process with respect to constitutional amendments as discussed
previously, and also undermines the intent of the framers that
the constitution not be “easily amended.” Comment by Delegate
= pefendants! contention in oral argument thet the term “propose{dl”
An article xVil refere to a proposal of the constseutional amendment £o the
fe incorrect inasmuch as article XVII sets forth one of the
Prerequisites that must be followed prick to any submission to the public for
Res'vores By incorporating the procedure for legislation set forth in article
TH, "section 16 the franers plainly directed that any proposed constitutional,
anehdnent would be subject to the reading procedure,
2
***FOR PUBLICATION***
Fukushima, in 2 Proceedings of the Constitutional Convention of
Hawaii 1950 at 744.
In the Committee Debates at the Constitutional
Convention of 1950, Delegate Fukushima explained that the process
for amending the State Constitution was to ensure that “the
Constitution should not be easily amended and. . . , at the same
time, the procedure of amending the Constitution should not be
rendered practically prohibitive or impossible.” Id. The
Committee on Revision, Anendnents, Initiative, Referendum and
Recall instructed, “This framework [ise,, the Federal
Constitution], which cannot be changed except with creat effort
and deliberation, produces an enduring stability not found in
other types of government.” Stand. Comm. Rep. No. 47 in 1
Proceedings of the Constitutional Convention of Hawaii 1950 at
183 (emphasis added).
As part of this framework, the Committee noted that
[e]he system of checks and balances between departnents
Ismich) tends to prevent excesses, abuses and usurpations,
and the short but certain tenure of the legislators ane
Governor insures that, by and large, the government will be
Fesponsive to the true snd enduring dictates and cesires of
Dut will not necessarily follow the dangerous
storms of hasty, temporary
land changeable public enotion.
Id, With respect to the legislature and in evident consonance
with such a framework, the Committee indicated that
[o}ne of the necessary features of Laws adopted by the
legisleture is the gecessity for three readings and the
opportunity for full debate inthe open. . . during the
Course of which the purposes of the measures, end thelr
meaning, scope and probable effect, and the validity of the
alleged facts and argunents given in their support can be
fully examined and, If false or unsound, can be exposed,
bafate any action of consequence 1s taken thereon-
2
##*FOR PUBLICATION**
8 added) «
Ida at 164 (some emphasis in original and some empha:
‘These premises confirm that the three reading requirement in each
house must be afforded to a proposed constitutional amendment.
The three-reading requirement not only provides the
opportunity for full debate; it also ensures that each house of
the legislature has given sufficient consideration to the effect
of the bill. Schwegmann Bros, v. Calvert Distillers Corp., 341
U.S. 384, 396 (1951) (Jackson, J. concurring) (concluding that
the three-reading requirement in the United States Constitution
is intended to “make sure that each House knows what it is
passing and passes what it wants”). Thus, the three-reading
requirenent serves a critical purpose in ensuring that
constitutional amendments are adopted only after deliberate
forethought. On the other hand, requiring a constitutional
times in each house (ixea,
amendment to be read and passed thre
“in the manner required for legislation”) would not render the
process for amending the constitution “practically prohibitive or
impossible[.}” Comment by Delegate Fukushima in 2 Proceedings of
the Constitutional Convention of Havaii 1950 at 744. For as this
case demonstrates, three of the four constitutional amendments
adopted in the 2004 legislative session were passed in this
manner. See supra. In light of the foregoing reasons, we also
conclude that the failure to give the proposed constitutional
anendnent three readings in each house on separate days was a
plain, clear, manifest, and unmistakable violation of the
constitution beyond a reasonable doubt.
23
***POR PUBLICATION"
xr.
Because the requirements of article XVII, section 3 and
article III, sections 14 and 15, were not fulfilled, as discussed
above, H.B. 2789, H.D. 1, S.D. 1 was not constitutionally
adopted. Based on the foregoing, we grant Plaintiffs’ request
for (1) a declaration that #.8. 2789, #.D. 1, 8.0. 1 was
invalidly passed and should not have been signed by Governor
Lingle or presented to the voters in the 2004 general election
and (2) an injunction prohibiting Defendants from allowing H.8.
2789, H.D. 1, 5.D. 1 to be printed or published as part of the
Hawas's Constitution.
xIT.
Defendants contend that: (1) any bright line rule
adopted by this court regarding the requirements of articles IIT
and XVII “apply only to bills or amendnents the Legislature
considers in future legislative sessions” (emphasis omitted);
(2) invatidation of H.B, 2769, H.D. 1, 8.D. 1 will violate the
separation of powers doctrine established in article IV, section
4 of the United States Constitutions and (3) voiding the
amendment would violate the fourteenth amendment to the United
States Constitution.
a
As to its first argument, Defendants contend that any
other course of action would be unfair because the legislature
and the voters did not have @ bright line rule to follow
regarding the application of article XVII, section 3 and its
4
***FOR PUBLICATION
relationship to article III, section 14. Defendants rely on the
holding in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i
115, 869 P.24 1334 (1994) (per curiam), in which this court
established a bright line rule regarding the strict application
of Hawai'i Rules of Civil Procedure (HRCP) Rule 58. In that
case, we noted,
rigid enforcement of HRCP $8 and application of our holdings
inthis opinion to cases currently pending before this court
and the Intermediate Coart of Appeals would work an
Unnecessary hardship on those who have relied upon our prior
ase law. Me will not rigidly apply the Rule 58 requirement
of a separate judgeent or our holdings in this opinion to
appeals currently pending. Wowever, for all appeals from
CERSUE courts clued etter March 31, 1994, we will enforce
Strict compliance with the separate document requirement of
nace se
Id. at 119, 869 P.2d at 1338. Defendants argue that it would be
wrong to invalidate a constitutional amendment which received
nearly two-thirds of the votes in the general election. However,
in oral argument, counsel acknowledged that the vote margin has
no legal significance in the determination of this case. The
legislature has the opportunity to propose identical
constitutional and statutory amendments in compliance with the
Constitution. Thus, the legislature will suffer no permanent
hardship comparable to the threat of losing the opportunity to
appeal an adverse ruling of the court that was present in
denkins.
Furthermore, the requirements of HRCP Rule 58 were not
plain and clear before the decision in Jenkins. Id, On the
other hand, the requirements for adopting a constitutional
amendment are established in the plain and unambiguous language
25
“FOR PUBLICATION***
of articles III and XVII; the legislature fulfilled the
requirenents of article XVII, section 3 and article III, sections
14 and 15 with regard to the three other proposed constitutional
amendments that were presented to and ratified by the voters in
the 2004 general election; and the framers of the constitution
manifestly contemplated public participation in the legislative
procedure that was precluded in this case. See discussion supra.
8
As to the second argument, Defendants assert that if
this court invalidates H.B, 2789, H.D. 1, 5.0. 1, we will intrude
upon the province of the legislature, a co-equal branch of
government, thus violating the separation of powers doctrine.
‘The separation of powers doctrine is enbodied in the Guarantee
Clause, article IV, section 4 of the United States Constitution,
which reads:
‘me United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect
tech of them against invasion; and on Application of the
Legislature, oF of the Executive (when the Legislature
Cannot be convened) against domestic Violence,
Questions arising under the Guarantee Clause are nonjusticiable
because they are “political, not judicial, in character, and thus
are for the consideration of the Congress and not the courts.”
Ohio v, Akron Metro, Park Dist. for Summit County, 281 U.S. 74,
79-80 (1930) (citations omitted).
Defendants’ arguments that this is a political, and not
judicial, question are unconvincing. It is well settled that the
courts, not the legislature, are solely vested with the
26
***FOR PUBLICATION***
responsibility to determine whether a constitutional amendment
has been validly adopted.
wone power to ascertain the validity of changes in the
constitution resides in the courts, and they have, with
practical uniformity, exercised the authority to determine
the validity of proposal, submission, or ratification of
henge in the organic 1a
fhe asostson of sn amendment te the constitanien is
Guudicial and-not a political question,”
Kahalekai, 60 Haw, at 330-31, 590 P.2d at 548-49 (quoting 16
Am.Jur.2d, Constitutional Law, § 43) (emphasis added). Thus,
this court does not improperly encroach upon the legislature's
power by invalidating H.B. 2789, H.D. 1, S.D. 1.
ce
As to the third argument, Defendants contend that
invalidation of H.B. 2789, H.D. 1, $.D. 1 would violate the
fourteenth amendment to the United States Constitution, which
provides in pertinent part that “[nJo state shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of
law[.J” However, Defendants present no discernible argument
regarding the alleged violation of this amendment. This court
may “disregard [a] particular contention” if the appellant “makes
no discernible argument in support of that position{.]” Noxton
Ma Adnin, Dir, of the Court, 80 Hawai'i 197, 200, 908 P.2d 545,
548 (1995) (citing Hawai'i Rules of Appellate Procedure (HRAP)
Rule 28(b)(7)), recon, denied, 80 Hawai‘i 357, 910 P.2d 128
a
#**FOR PUBLICATION***
(1996). See HRAP 28(b) (7) ("Points not argued may be deemed
waived,
The entirety of Defendants’ argument that invalidation
of H.8. 2789, H.D. 1, S.D. 1 would violate the fourteenth
amendment is this: “For similar reasons tied to notions of
fundamental fairness [referring to the argument that invalidation
would violate the Guarantee Clause, supra], we also respectfully
submit that invalidating the amendment would also violate the due
Process clause contained in the [fourteenth amendment of the
United States Constitution.” This argument does not contain any
Feasoning, supported by citations to case law or authority to
constitute a discernible argument; thus we decline to decide the
issue
xrmt.
Plaintiffs’ prayer for relief requested that this court
award them attorneys fees and costs because “this case presents a
novel issue of constitutional significance.” We order that any
request for attorneys’ fees and costs be submitted in accordance
with the procedure set forth in HRAP Rule 39(d) (2005). See
HEAP Rule 35(d), entitled “Request for fees and costs:
objections,” states, in pertinent part
(1) A party who desizes an award of attorney's fees or
costs shall request then by subaitting an itemized and
Verified bill of fees oF costs, together with # statement of
authority for each category of items... Requests for
on-indigent attorney’ s fees and costs allowed by statute or
Contract shall be submitted ina form that substantially
Gomplies with Form § in the Appendix of Forms
(2)"R request for fees and coats must bo fLled with
tthe appellate clerk, with proof of service, no later than 14
days after entry of judgment. An untimely’ request for fees
and costs may be denied... . If oral argument is had oF
(cosines.
8
“FOR PUBLICATION***
also HRS § 11-175 (1993).
xiv.
‘Therefore, IT IS HEREBY ORDERED that Plaintiffs’
requests for (1) a declaration that H.B. 2789, H.D.1, 8.0.1 is
invalid, (2) and an injunction prohibiting Defendants from
printing or publishing Question 1 as part of the Hawai'i
Constitution are granted and judgment thereon shall be entered
upon proper submission by Plaintiffs. It is further ordered that
Plaintiffs shall submit their claim for attorneys’ fees and costs
pursuant to HRAP Rule 39(d)
Lois K. Perrin, American Goro
Civil Liberties Union of -
Hawaii Foundation; Rem Melber
lgatle Ay Fartington on
the briefs) for Plaintiffs. Pech Geary,
Mark Bennett, Attorney
General of Haval'is
(Ghatieer Me ane Yon at:
& Russell A. Suzuki, *
Beputy: Attorneys General,
with'hin'on ene beleda)
Ter befendantas
%contimed)
Taditicnal work 4e performed thereafter, the attorney may
Suonit s request for additional fees and costs.
(3) Oebections to Tequeats for fees and costs must be
filed with the appellate clerk, with proof of service,
within 10 days after service on the party against whom the
Tees and costa are to be taxed unless the time is extended
by the appellate court. A reply to the objections must be
flied with the appellate clerk, with proof of service,
within? days after service of the objections on the
Initiating party.
IRS § 11-275, entitled “Powers of supreme court: costs,” provide
‘The supreme court may conpel the attendance of witnesses, punish
jary folly te
Getermine the proceedings, and enforce its decrees therein. The
Court nay make such special rules ae it may find ne
Broper, the costs shill be as provided by the supreme court by
Fale:
»
|
68dd49ea-6ef9-44d7-9544-ffbfb4d70f64 | State v. Furtado | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION
No, 27333
IN THE SUPREME COURT OF THE STATE OF HAWAZ!
STATE OF HAWAI'I, Plaintiff-Appellee,
vs.
MELVIN A. FURTADO, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CITATION NOS. 5811055MO, 5811056MO and 58110570)
(By: Nakayama, J. for the court!)
Upon review of the record, it appears that the district
court's March 23, 2005 judgments were appealable by notice of
appeal filed by April 22, 2005. See HRAP 4(a) (1) and 4(b) (1).
The time for appealing the judgments was not extended by the
April 22, 2005 motion for reconsideration. See HRAP 4(a) (3) and
4(b) (2). The notice of appeal filed on May 31, 2005 was untimely
and we lack jurisdiction. See Grattafiori v. State, 79 Hawai'i
10, 13, 897 P.2d 937, 940 (1995) ("[C]ompliance with the
requirement of the timely filing of a notice of appeal [in a
criminal matter] is jurisdictional, and we must dismiss an appeal
on our own motion if we lack jurisdiction.”); Bacon v, Karlin,
68 Haw. 648, 650, 727 P.2d 1127, 1128 (1986) (The timely filing of
notice of appeal in a civil matter is a jurisdictional defect
that can neither be waived by the parties nor disregarded by the
appellate court in the exercise of judicial discretion.)+
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
3,
woos
NOT FOR PUBLICATION
MRAP 26(b) ("(N]o court or judge or justice is authorized to
change the jurisdictional requirements [of the 30-day appeal
period] contained in Rule 4 of (the HRAP)."). Therefore,
IT 18 HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, September 2, 2005.
FOR THE COURT:
Pee Oye
Associate Justice
|
a74099f0-0af2-480f-9a2c-7719b99d13ad | Hutch v. State | hawaii | Hawaii Supreme Court | LAWLIERARY
No. 26728
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
ee
EUGENE JAMES HUTCH, Petitioner-Petitioner-Appellant,
STATE OF HAWAI'I, Respondent-Respondent-Appellee-
a
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(8.P.P. NO. 03-1-0027)
ORDER DENYING AP! wal OF CERTTO:
‘By: Nakayama, J., for the court’)
Petitioner-Petitioner-Appellant’s application for writ
of certiorari filed on August 30, 2005, is hereby denied.
DATED: Honolulu, Hawai'i, September 9, 2005.
FOR THE COURT:
Reta, ramerare| Q
Associate Justice
s
M4,
Eugene James Hutch,
petitioner-petitioner-
appellant, pro se,
on the writ
135 SON ke
é
Xz,
bra:
45:9 Wi
‘considered by: Moon, CiJ+, Levinson, Nakayama, Acoba, and Duffy, 9.
|
e6445725-cc5a-4788-ad8e-921cbebf5d25 | State v. Coronel | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 25975
IN THE SUPREME COURT OF THE STATE OF HAWAT'T 8
STATE OF HAWAI'I, Plaintiff-Appellee,
PAUL DENNIS CORONEL, aka PAUL KAY CORONEL, Defendant-Appellant.
APPEAL FROM THE THIRD CIRCUIT COURT
(CR. NO. 87-437)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, and Nakayama, JJ.; with Acoba, J.,
concurring separately, and with whom’ Duffy, J., joins)
Defendant-appellant Paul Dennis Coronel, aka Paul Kay
Coronel, appeals from the Circuit Court of the Third Circuit’s
July 29, 2003 final order! denying his second amended motion
under Hawai'i Rules of Penal Procedure (HRFP) Rule 35 for
correction of sentence for multiple counts of theft in the first
degree. As points of error on appeal, Coronel contends that in
denying his motion, the circuit court erred when it failed to
correct a sentence that was: (1) an illegal extended and
consecutive sentence; (2) based on an unconstitutional
indictment; and (3) based on improper instructions to the jury.
‘The State of Hawai'i counters that: (1) the appellate court
should not consider claims previously waived or ruled upon on
direct appeal or other collateral attacks, including HRPP Rule 40
The Honorable Greg K. Nakamura presided over this matter
*** NOTFOR PUBLICATION ***
proceedings; and (2) the rule in Apprendi v, New Jersey, $30 U.S.
466 (2000) (holding that where factors other than prior
convictions are used to increase the maximum sentence authorized
for a crime, those factors must be submitted to the jury and
proved beyond a reasonable doubt), does not apply retroactively
to preclude extended term sentences in cases where the judgment
and direct app.
1 were already final prior to the announcement of
the rule in Apprendi.
Upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advocated and the issues raised, we resolve the
parties’ contentions and hold as follows: (1) Coronel’
arguments regarding the indictment and jury instructions are
barred because they were already raised and ruled upon in his
Girect appeal and other post-conviction proceedings.’ See
Babieros v. Clark Equip. Co., 85 Hawai'i 336, 252 n.8, 944 P.2d
1279, 1295 n.8 (1997) (law of the case doctrine prevents a party
from subsequently reopening 2 question of law already decided in
2 prior appellate proceeding in the sane case); of, HRPP Rule
40(a)(3) (Rule 40 relief not available where the issues sought to
2 coronel’'s conviction was affirmed on direct appeal by menorandun
opinion of this court on dune 16, 1990. geate v, Coranel, No. 13919, 71 Haw.
657, 734 P.24 618 (1990)- His HREP Rule 40 petition for post-conviction
relief was denied by summary disposition order of this court on September 30,
1999. State v. Corensl, No- 21363, 52 wawai'l 632, 994 P.2a S64 (1999). Ae
Coronel concedes here, he raised both the indictment and jury instruction
issues in those proceedings.
*** NOT FOR PUBLICATION ***
be raised have been previously ruled upon); (2) Coronel’s
extended sentence argument ie also precluded because his judgment
of conviction and direct appeal were already final prior to the
announcenent of the rule in Apprendi. See State v, Gomes, 107
Hawai'i 308, 314, 113 P.3d 164, 190 (2005) (rule in Apprendi does
not apply retroactively on collateral attack). Therefore,
IT IS HEREBY ORDERED that the circuit court’s July 29,
2003 order denying Coronel’s second amended motion for correction
of sentence is affirmed.
DATED: Honolulu, Hawai'i, August 30, 2005.
on the brsefe: gee
Richard D.
for defendant-appellant Mrs iarve —
Paul Dennis Coronel,
ake Paul Kay Coronel d a janes
Charlene Y. Iboshi,
Deputy Prosecuting Attorney,
for plaintiff-appellee
State of Hawal'l
|
3ab8d0d0-5d09-4cb6-ac24-3ae0775e4b55 | U.S. Bank National Association as Trustee for Salomon Brothers Mortgage Securities VII, Inc. v. Ragasa | hawaii | Hawaii Supreme Court | Wo, 25974
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
oo
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR SALOMON
BROTHERS MORTGAGE SECURITIES VII, INC., ASSET-BACKED
FLOATING RATE CERTIFICATES SERIES 1998-NC6,
Respondent /Plaintiff-Appellee,
JOYCE RIOPTA RAGASA and BONTFACIO G. TUMANENG,
Petitioners/Defendants-Appellants, 3
and
JAMES LOPES, JUDY LOPES, and JOHN and MARY DOES 1-10,
Defendants.
ee
CERTIORAR! TO THE INTERMEDIATE COURT OF APPEALS
(CIV. No. 03-1-0007)
(By: Duffy, J. for the court!)
Petitioners/defendants-appellants’ application for writ
of certiorari filed on August 8, 2005 is hereby denied.
DATED: Honolulu, Hawai'i, August 18, 2005
FOR THE COUR’
Cama, Autlys h-
Associate Justice
Gary Victor Dubin
for petitioners/
defendants-appellants
on the writ
* considered by: Moon, jana, Aceba, and Duffy, 32
C.Jey Levinson, Wa
ase
|
7db219c9-006d-46da-99c3-7c56246a533e | Kim v. Ko | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION ***
No. 27269
1 Sue
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
a1
ANTHONY KIM, Plaintiff-Appellant, 5
NONI KO, aka NONI ANNE JUD, and CATHERINE EILEEN JUD,
Defendant s-Appellees.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 99-0322)
(By: Nakayama, J., for the court*)
Upon review of the record, it appears that (1) the
Suprene Court Clerk's Office informed Appellant, ANTHONY KIM, by
letter dated July 15, 2005, that the record on appeal cannot be
filed without payment of the filing fee pursuant to Rule 3(f) of
the Hawai'i Rules of Appellate Procedure (HRAP) or an executed
motion to proceed in forma pauperis pursuant to HRAP Rule 24 and
that the matter would be called to the attention of the court for
such action as the court deemed proper pursuant to HRAP Rule
11(a), including dismissal of the appeals and (2) Appellant
failed to pay the filing fee or submit a motion to proceed in
forma pauperis; therefore,
IT 1S HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, August 18, 2005.
FOR THE COURT:
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, Jv.
|
616be47c-a265-43b1-80d0-610069043ecb | State v. Flournoy | hawaii | Hawaii Supreme Court | No. 26759
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Respondent-Plaintiff-Appellee,
&
ndant-Appellant *
CALVIN FLOURNOY, R., Petitioner-Defer
OO
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 95-0303(2))
(By: Nakayama, J., for the court")
Petitioner-Defendant-Appellant’s application for writ
led on August 15, 2005, is hereby denied.
of certiorari
Honolulu, Hawai'i, August 24, 2008.
FoR THE COURT: on
Baie Ons arf
SEAL
Associate Justice (
DATED:
ey
3
To
g
4
Can,
calvin Flournoy, Jr.,
petitioner-defendant—
appellant, pro se
onthe writ
Pe
> &
3 c
oon, 613s, Levinson, Wakayana, Acobe, and DUtty, 3.
‘considered by:
|
3b214986-f468-49f3-ada7-ffb0f014ec7d | The Bank of New York v. Blanco | hawaii | Hawaii Supreme Court | UAW UBRARY
wo, 27197
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
THE BANK OF NEW YORK, as Trustee AMRESCO Residential Securities
Mortgage Loan Trust 1997-1 Under the Pooling & Servicing
Agreement Dated as of March 1, 1997, Plaintiff-Appellee
EDITHA CASTANAGA BLANCO, DWYER IMANAKA SCHRAFF KUDO MEYER &
FUJIMOTO, a Hawai'i Law Corporation, CHICAGO TITLE INSURANCE
COMPANY: LORRIE C. RUMBAUGH, Defendants-Appellees
and
JOHN and MARY DOES 1-10, DOE PARTNERSHIPS, CORPORATIONS
‘ox OTHER ENTITIES 1-20, Defendants
CHICAGO TITLE INSURANCE COMPANY, Third-Party Plaintiff-Appellee
A. EDUARDO G. BRINGAS, Third-Party Defendant-Appellant
and
JOHN and MARY DOES 1-10, DOE PARTNERSHIPS, CORPORI
or OTHER ENTITIES 1-10, Third-Party Defend:
6 HY 01 nV seu
oad
APPEAL FROM THE FIRST CIRCUIT couRT
(civ, NO. 98-0276) a
‘ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
6S
Upon consideration of the motion filed by Appellant
A, Eduardo G, Bringas to dismiss his appeal pursuant to HRAP Rule
42(b), the papers in support, and the records and files herein,
17 18 HEREBY ORDERED that the motion is granted, and
this appeal Ss dismissed pursuant to HPAP Rule 42(b). The
parties shall bear their ovn appellate costs and fees.
DATED: Henetuts, Howas"iy August 10, 2005.
beisn X, Yonone
Pee Sefandent Sepettane
fe aceasta eeinges
ba She noeion
Deets Creda
aa
Varma, elise dhe
|
5e4b529f-19bd-43bc-aec6-83a9ea400b5a | State v. Shabazz | hawaii | Hawaii Supreme Court |
NOS. 25655 & 25657
IN THE SUPREME COURT OF THE STATE OF HAWAT'r
Hd 2~ d3ssone
No. 25655
HABIB SHABAZZ, also known as “T-Bone,” Petitioner-Appeliant,
STATE OF HAWAI'I, Respondent -Appellee,
and MARIO CRAWLEY, also known as “Quick,” HARVEY
CARVIS, JAMES SHAKESPEARE, MEKA UGOBZI, and
LLOYD SWANSON, Defendants.
MARIO CRAWLEY, aivo Known! sd *OLick,” Pet itioner-Appellant,
vs.
STATE OF HAWAI'L, Respondent-Appelee,
WABIB SHABAZZ, also known as “T-Bone, * HARVEY
CARVIS, JAMES SHAKESPEARE, MEKA UGOEZI, and
LLOYD SWANSON, Defendants -
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 99-0693)
DENYING APP]
(By: Moon, C.J., for the court®)
The application for writ of certiorari, filed by
Petitioners-appellants Habib Shabazz, also known as “T-Bone,” and
Mario Crawley, also known as “Quick,” on August 24, 2005, is
denied.
DATED: Honolulu, Hawai'i, September 2, 2005,
Lane ¥. Takahashi, for FOR THE COURT:
petitioner-appellant
Habib shabace Giiptrn~
Gienn D. choy, for (be Justice «
petitioner-appellant
Mario Crawley
* Considered by: Moon, ¢.3., Levinson, Nakayama, Acob:
and Dutty, a3.
|
3f4245eb-446e-457b-8e93-a41f5bb8912b | Orthopedic Associates of Hawaii, Inc. v. Hawaiian Insurance Guaranty Company, Ltd. | hawaii | Hawaii Supreme Court |
FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I.
00
ORTHOPEDIC ASSOCIATES OF HAWAII, INC.
ATKINSON, M.D.; GREGORY H. CHOW, M.D
CHUN-HOON, M.D. DARRYL M. KAN, M.D.; THOMAS J. MANE,
III, M.D.; DEAN'G. LORICH, M.D.; JAY M, MARUMOTO, M.D.
CALVIN S. OISHT, M.D.; ALAN N. OXI, M.D.; ALAN PAVEL,
M.D.; ALLEN B. RICHARDSON, M.D.; DANIEL I. SINGER,
M.D.; HONOLULU SPORTS MEDICAL CLINIC, INC. ; CHET
NIERENBERG, M.D.; ROBERT SMITH, M.D.; PETER DIAMOND,
M.D. MAUT RADIOLOGY CONSULTANTS; EUGENE C. WASSON,
III, M.D.; DAVID J. HEENEY, M.D.; GEORGE S. BOREN,
M.D.; CHRISTOPHER A. NEAL, M-D.; SCOTT R. BOREN, M.D.
JAMES A. BENDON, M.D.; GEOFFREY M. MURRISH; HAWAIT
ORTHOPAEDICS, INC.; EDWARD GUTTELING, M.D. ; JEAN
MARINE, M.D.; ARTHUR REHME, M.D.; JOHN’ AZZATO, M.D.;
PRANK OSBORNE, M.D.; ROLF DRINHAUS, M.D.; JOHN CHASE,
M.D.; THOMAS SCHOTT, M.D.; WILLIAM FALOON, M.D. ;
PATRICK PADILLA, M.D.; DENISE WILLIAMSON, M.D.; JON
SCARPINO, M.D.; ALAN LARIMER, M.D.; ROBERT MEDOFF,
M.D.; LINDA J. RASMUSSEN, M.D.; EDWARD A. ALQUERO,
M.D., individually and dba EDWARD A. ALQUERO, M.D.,
INC.; KHENG SEE ANG, M.D.; STEVEN AZUMA, M.D.; LEE AU,
M.D.; ERNEST L. BADE, M.D., individually and dba ERNEST
LL. BADE, INC.; ALISTAIR BAIROS, M.D.; CHARLES H.
BALLARD, D.O., individually and dba KIHEI WAILEA
MEDICAL CENTER; JOHN BELLATI, M.D., individually and
dba WEST HAWAII ORTHOPEDICS, INC. ; "BARRY BLUM, M.D.,
individually and dba BARRY BLUM, M.D., INC.; WILEY
BRUNEL, M.D.; SUSAN CAULEY, M.D., individually and dba
SUSAN CAULEY, M.D., INC.; DENIS CHAN, M.D.,
individually and dba DENIS CHAN, M.D., INC.; ROBERT K
CHINN, M.D.; KEVIN C. CHEN, M.D., individually and dba
KEVIN C. CHEN, M.D., INC., F.A.C.0.C.; NARK L. COHEN,
M.D., individually and dba MARK L. COHEN, M.D., INC.
MAXWELL A. COOPER, M.D., individually and dba MAXWELL
A. COOPER, M.D., LTD.; KENT DAVENPORT, M.D.; GEOFFREY
V. DAVIS, M.D., individually and dba GEOFFREY V.
DAVIS, M.D., INC.; TERESA ANN DENNEY, D.0.; ALAN C.
GeSILVA, M.D., individually and dba ALAN C. deSILva,
M.D., INC.; MICHAEL J. DIMITRION, M.D., individually
‘and'dba MICHAEL J, DIMITRION, M.D., INC.; LORNE K.
DIRENFELD, M.D., individually and dba MAUI NEUROLOGICAL
‘ASSOCIATES, INC.; FORTUNATO V. ELIZAGA, M.D.; JUDY ANN
EMANUEL, D.O.; PAUL T. 2SAKI, M.D., individually and
dba PAUL T. ESAKI, M.D., INC.; FRANK A. PARREN, M.D.,
individually and dba FRANK A. FARREN, M.D., INC.;
; ROBERT=B)
ALBERT AK.
aams
*** FOR PUBLICATION **
GERALD D, FAULKNER, M.D., individually and dba GERALD
D. FAULKNER, M.D., INC.; PETER GABIN, M.D.; PETER A.
GALPIN, M.D. KRISTIN GEBROWSKY, M.D.; JAMES L. GROBE,
M.D.; JED'A. GROOM, M.D.; JON HARRELL, M.D.; ROBERT S.
HARVEY, M.D., individually and dba ROBERT S. HARVEY,
M.D., INC.; JOHN HEASTER, M.D.; W. DOUGLAS B. HILLER,
M.D., individually and dba HILLER ORTHOPEDIC, INC.;
JONATHAN JANES, M.D., individually and dba KONA COAST
INTERNAL MEDICINE, INC.; ALFONSO JIMENEZ, M.D.; DONALD
‘A. JONES, M.D.; AARON S. KAICHT, M.D.; RAYMOND KANG,
M.D., individually and dba OMNICARE MEDICAL CLINIC;
NEIL THOMAS KATZ, M.D., individually and dba MAUI
SPORTS MEDICINE CENTER, INC.; WILLIAM G. KEPLER, M.D.;
BRADON YOSHIO KIMURA, M.D.; RICHARD ¥. KIMURA, M.D.,
individually and dba RICHARD Y, KIMURA, M.D., INC.
ROGER T. KIMURA, M.D.; ALLAN R. KUNIMOTO, M.D.
CLIFFORD K.H. LAU, M.D., individually and dba CLIFFORD
K.H. LAU, M.D., INC.; DELLA LIN, M.D.; BLASE B. LEE
LOY, "M.D.} PANU'LIMPISVASTI, M.D.; STEPHEN LIM, M.D. ;
DENNIS B. LIND, M.D.; ROBERT F. LINDBERG, M.D.; JAMES
LUMENG, M.D.; EUGENE MAGNIER, M.D.; SCOTT MANDEL, M.D.;
FRANKLIN MARCUS, M.D.; TKUO MAEDA, M.D.; CHRISTOPHER W.
MARSH, M.D.; ROBERT C. MARVIT, M.D.; GERALD W.
MAYF[]ELD, M.D.; MICHAEL R. MCCARTHY, M.D.,
individually and dba McCARTHY ORTHOPEDIC REHABILITATION
& SPORTS MEDICINE, INC.; TIMOTHY F. McDEVITT, M.D.;
GERALD J. McKENNA, M.D.; MORRIS MITSUNAGA, M.D.,
individually and dba MORRIS MITSUNAGA, M.D., INC.;
PATRICK CHANDLER MURRAY, M.D.; ROLAND K. NAKASHIMA,
€.D., individually and dba ROLLAND K. NAKASHIMA, M.D.,
INC.; GEORGE F. NARDIN, M.D.; FREDERICK A. NITTA, ¥.D.,
individually and dba FREDERICK A. NITTA, M.D., INC.
JAMES E. ODA, M.D., individually and dba’ JAMES'E. ODA,
M.D., INC.; TIMOTHY PF. OLDERR, M.D.; DAVID LEE PANG,
individually and'dba DAVID LEE PANG, M.D., INC.;
MICHAEL ANTHONY PASQUALE, D.O.; RICHARD ALEXANDER
PERRIE, M.D.; RONALD P. PEROFF, M.D., individually and
dba RONALD P. PEROFF, M.D., INC.; ROBERT L. PETERSON,
M.D., individually and dba ROBERT L. PETERSON, M.D.,
INC! ; MICHAEL SOO-CHEN PI, M.D.; JORDAN S. POPPER,
M.D., individually and dba JORDAN S. POPPER, M.D
INC.; DAVID J. RANDELL, M.D.; ELMBER H. RATZLAFF, M.D.,
individually and dba’ KIHET CLINIC; GARY S. RINZLER,
M.D.; PETER ANDREW RONEY, M.D.; CHARLES SALZBERG, M.D.
individually and dba CHARLES SALZBERG, M.D., INC.7
THOMAS H. SAKODA, M.D.; ROBERT L. SCHIFF, M.D.; JAMES
F, SCOGGIN, III, M.D.; MICHAEL H.7. SIA, ™.D.,
individually’ and dba MICHAEL H.T. SIA, M.D., INC.;
ROBERT REID SLOAN, M.D.; JOHN S. SMITH, M.D.,
individually and dba JoHY S. SMITH, M.D., INC.; TERRY
*** FOR PUBLICATION ***
a
G. SMITH, M.D.; CHARLES A. SOMA, M.D., individually and
Gba NORTHSHOR ORTHOPAEDICS AND SPORTS MEDICINE; KEITH
‘SOPER, M.D. individually and dba MAUI SPINOSCOPY;
THOMAS J. SPALLINO, M.D.; SUSAN STEINEMANN, M.D.; JOHN
W. STILLER, M.D., P-A.A.N.; ALLEN STRASBERGER, M.D.,
Yndividually and dba PACIFIC PLASTIC SURGERY, INC.;
RANDALL M. SUZUKA, M.D., individually and dba HALEIWA
FAMILY CLINIC, INC. dba HALRIWA FAMILY HEALTH CENTER;
RAMON SY, M.D.; MASAO TAKAT, M.D., individually and dba
M. TAKAT, M.D,, INC.; TERRY A, VERNOY, M.D.,
individually and dba TERRY A. VERNOY, M.D., INC.
DENNIS b. WATKINS, M.D.; FRANKLIN YAMAMOTO, M.D.; CHOON
KIA YEO, M.D., individually and dba CHOON KIA YEO,
M.D., INC.; WALTER K.W. YOUNG, M.D.; IRA D. ZUNIN,
M.D., M.P.#.7 CHOLBAE KIM, M.D.; FRANKLIN RAMOS, PH.D.;
JAMES A. FERRIER, M.D.;
and
HAMAII STATE CHIROPRACTIC ASSOCIATION, INC.; ROBERT J.
ABDY, D.C., individually and dba ROBERT J. ABDY, D.C.,
INC.; LISA BAPTISTA, D.C., individually and dba)
BAPTISTA CHIROPRACTIC; LARRY BELCHER, D.C.; GARY BELL,
D.C.; GARY M. BELL, D.C., individually and dba SPINAL
BYNAMICS HEALTHCARE CLINIC, also dba KAMAAINA
CHIROPRACTIC; CRAIG BENZEL, D.C.; BEVERLY BIGBEE, D.C.;
THOMAS EDWARD BOWLES, D.C., individually and dba
HALEIWA CHIROPRACTIC CLINIC; CHALMERS LAWSON CANNON,
D.C.; JOSEPH CARDINALLI, D.C.; KEITH CASTILLOUX, D.C.
RIK CEDERSTROM, D.C.; DONALD T.L. CHING, D.C.; DONNA-
LYNN CHING, D.C., individually and dba KAIMUKI BACK
CARE CENTER; AMES CHOW, D.C.; RODNEY CHUN, D.C.; TED
CHUN, D.C., individually and dba MILILANT BACK CARE
CENTER, INC., also dba DOWNTOWN CHIROPRACTIC CENTER;
RANDY R. COLLINS, D.C., individually and dba RANDY R.
COLLINS, D.C., INC., also dba T.A.R.G.E.T.; LAWRENCE
CONNORS, 'D.C., individually and dba FAMILY CHIROPRACTIC
CENTER, also dba WINDWARD REHABILITATION CENTER, also
dba WINDWARD THERAPEUTIC MASSAGE CENTER; JEFFREY DASO,
'D.C., individually and dba KEAHOU CHIROPRACTIC; FRANK
DAVIS, D.C., EDAARD DAWRS, D.C. and JILL DAWRS, D.C.,
individually and dba KEAWE CHIROPRACTIC CENTER; RHODY
EDWARDS, D.C.; LINDA A, PICKES, D.C.; ROBERT GALLAGHER,
D.c., individually and dba TRI STAR HEALTH CARE, INC.;
WILLIAM CARL GALLEGOS, M.S., D.C.; TIMOTHY A, GRIFFIN,
D.C.; ROBERT HARRISON, D.C., individually and dba
ROBERT HARRISON, D.C., INC., also dba SPINAL DYNAMICS
HEALTHCARE CLINIC; JAMES HATTAWAY, D.C.; TIM H.
HENDLIN, D.C., individually and’ dba HENDLIN
CHIROPRACTIC HEALTH CENTER? RANDALL W. HILL, D.C.;
*** FOR PUBLICATION
individually and dba CHTROCENTER; SCOTT T. HIRASHIKI,
D.C., individually and dba HIRASHIKT CHIROPRACTIC
CENTER, formerly known as OAHU FAMILY CHIROPRACTIC
CENTER; ALICE HOLM-OGAWA, D.C.; KARL HYNES, D.C. ;
ANDREW M. JANSSEN, D.C. ; JOHN JAROLIMEX, D.C.; STEVEN
KEY, D.C., individually and dba OHANA HALE CHIROPRACTIC
CLINIC, INC.; GINA KIM, D.C.; WILLIAM KIM, D.C.,
individually and dba INJURY CARE CLINIC; LINDSEY J.
KIMURA, D.C.; individually and dba HAWAII CHIROPRACTIC
CLINIC; EUGENE KITTS, D.C., individually and dba
NEWTOWN CHIROPRACTIC’ & NATUROPATHIC CLINIC, INC. ;
ROBERT KLBIN, D.C., individually and dba KLEIN
CHIROPRACTIC CENTER; TIM P. KRANTZ, D.C., individually
‘and dba CHIROPRACTIC CARE OF HAWAII; DOUGLAS KROLL,
D.C.; PAUL W.¥. KURIHARA, D.C., LMT, individually and
dba CHIROPRACTIC SHIATSU HEALTH CENTER; ANN LANDES,
D.C.; ALEJANDRO LAZO, D.C., individually and dba
ALEJANDRO LAZO, D.C., INC., also dba MAUI SPINAL CARE,
formerly known'as MASTERS, 'D.C., individually and dba
MASTERS BACK AND NECK’ PAIN RELIEF CENTER; DALE
McSHERRY, D.C.; DENNIS MOMYER, D.C., individually and
dba MOMYER CHIROPRACTIC; STACY T. NAGAREDA, D.C.; DEAN
NELSON, D.C., individually and dba WINDHORSE
HEALTHCARE; “YU NGUYEN, D.C.; SUSAN A. NICKERSON, D.C.
individually and dba DIAMOND HEAD CHIROPRACTIC; ‘REX K
NEIMOTO, D.C.; individually and dba REX NIIMOTO, D.c.,
INC., also dba PEARLRIDGE CHIROPRACTIC CENTER; | CHRIS|
NOWICKI, D.C. BARRY J. NUTTER, D.C., individually and
dba HOLISTIC WELLNESS CENTER OF HAWAII, INC., also dba
NUTTER CHIROPRACTIC & SPORTS MEDICINE CLINIC, INC.
RYOICHI OGAWA, D.C., individually and dba OGAWA|
CHIROPRACTIC, INC.; NICHOLAS G. OPIE, D.C.,
individually and dba NICHOLAS G. OPIE, D.C., INC.;
MAUDS PANGANIBAN, D.C.; GREG Y. SONG, D.C.,
individually and dba VALLEY ISLE CHIROPRACTIC; HARVELEE
LEITE-AH YO, D.C.; HOWARD M. MARTIN, IZ, D.C.,
individually and dba BIG ISLAND CHIROPRACTIC, alo dba
‘ACCIDENT INDUSTRIAL INJURY CLINIC; KURT MARIANO, D.C.
MICHAEL J. PANGANIBAN, D.C.; ALAN R. PEARSON, D.C.
RAND PELLEGRINO, D.C.; PAUL K. PESTANA, D.C.;
individually and dba AINA HAINA CHIROPRACTIC CLINIC;
MICHAEL C. PIERNER, D.C., individually and dba KIHE!
CHIROPRACTIC CENTER, INC.} CLINIC; JAMES PLEISS, D.C.;
ALBERT L. POLICE, 'D.C.; JILL POPTER, D.C.; JOHN 7.
RATHJEN, D.C., individually and dba RATHJEN CLINIC;
LAWRENCE A. REDNOND, D.C., individually and dba KAIMUKT
CHIROPRACTIC CENTER; DENNIS G. RAHTIGAN, D.C. ; JEPFREY
B. RONNING, individually and dba RONNING CHIROPRACTIC
RESEARCH, also dba PAMILY CHIROPRACTIC CLINIC OF
KAIMUKI; GARY RYAN, D.C., individually and dba RYAN
*** FOR PUBLICATION ***
See
CHIROPRACTIC OFFICES; GARY K. SAITO, D.C., individually
‘and dba SAITO CHIROPRACTIC OFFICE; LAURIE SHEBS, D.C.;
MITCHEL T. SHIMAMURA, D.C.; GARY M. SOLI, D.C.,,
individually and dba GARY M. SOLI, D.C., INC., dba
CHIROPRACTIC HEALTH SERVICES; BRET STEELS, D.C.;
PATRICK J. SULLIVAN, D.C., individually and dba PATRICK
3. SULLIVAN, D.C., INC., also dba MOANALUA CHIROPRACTIC
CENTER; HOWARD TANG, D.C., individually and dba SPORTS
& FAMILY CHIROPRACTIC CLINIC; GARY TANKSLEY, D.C.,
individually and dba TANKSLEY CHIROPRACTIC OFFICE,
also dba GARY TANKSLEY, INC.; STEPHEN A. TAREK, D.C.
ROBERT T. TODA, D.C.; ROSS TRIVAS, D.C.; FRANCES TULLY,
‘D.C., individually and dba CHIROPRACTIC HEALTH CARE OF
AWAIT; ALFRED R. VALENZUELA, D.C.; DIANA WALTON, D.C.
‘and STEVEN WALTON, D.C., individually and dba LAHAINA
HEALTH CENTER; THOMAS WALTON, D.C., individually and
‘dba LEEWARD CHIROPRACTIC CENTER, INC.; WILLIAM K.
WATANABE, D.C., individually and dba TED S. WATANABE,
INC., also dba McCULLY CHIROPRACTIC CENTER; REX WEIGEL,
D.C. RICHARD L. WILCOX. D.C., individually and dba
WILCOX HEALTH & REHABILITATION CENTER; CANDACE
WILLIAMS, D.C.; KENNETH WILLIAMS, D.C., individually
and dba KENNETH WILLIAMS, D.C., INC., also dba WAIMEA
CHIROPRACTIC CLINIC; DALE K. YAMAUCHI, D.C.,
individually and dba YAMAUCHI CHIROPRACTIC, INC.;
MICHAEL YOUNG, D.C., individually and dba YOUNG HEALTH
CLINIC, INC., also dba HEALTH & ACCIDENT CLINIC, INC.;
RAYMOND YOZA, D.C., individually and dba YOZA
CHIROPRACTIC OFFICE; LOTS CAMPBELL, D.C.; NALAMA
CHIROPRACTIC CLINIC; JOSEPH MORELLI, D.C.; MICHAEL J.
MASTERS, D.C.; LEZLIE BIGNAMI, D.C.
and
HEALTHSOUTH, fka PACIFIC REHABILITATION & SPORTS
MEDICINE (“PRSM"); HEALTHSOUTH, fka PRSM dba EAGLE
REHAB CORP,, a Division of Horizon/CMS; HEALTHSOUTH,
‘tka PRSM dba NAUI REHABILITATION & SPORTS MEDICINE;
HEALTHSOUTH, fka PREM dba KONA REHABILITATION & SPORTS
MEDICINE; HEALTHSOUTH, fka PRSM dba HILO REHABILITATION
& SPORTS MEDICINE; HEALTHSOUTH, fka PRSM dba MAUI
REHAB; HEALTHSOUTH, fka PRSM dba KONA REHAB;
HEALTHSOUTH, £ka PRSM dha HILO REHAB; HEALTHSOUTH, fka
PRSM dba PACIFIC REHAB; HEALTHSOUTH, fka PRSM dba
PACIFIC REHAB, INC.; HEALTHSOUTH, fka PRSM dba THERAPY
‘SPECIALISTS, INC.; HEALTHSOUTH, fka PRSM dba CENTRAL
OAHU REHABILITATION; HEALTHSOUTH, fka PRSM dba ADVANCE
REHABILITATION & SPORTS MEDICINE, INC.; HEALTHSOUTH,
fka PRSM dba LEEWARD BACK & NECK,INC; HEALTHSOUTH dba
FOR PUBLICATION ***
HEALTHSOUTH REHABILITATION CENTER OF HAWAIT (MAUI) ;
HEALTHSOUTH dba HEALTHSOUTH REHABILITATION CENTER OF
HAWAII SATELLITE 1 (MAUI); HEALTHSOUTH dba HEALTHSOUTH
REHABILITATION CENTER OF HAWAII SATELLITE 2 (MAUI
HEALTHSOUTH dba HEALTHSOUTH REHABILITATION CENTER OF
ANAII SATELLITE 3 (MAUI); HEALTHSOUTH dba HEALTHSOUTH
REHABILITATION CENTER OF KAIMUKI; HEALTHSOUTH dba
HEALTHSOUTH REHABILITATION CENTER OF HONOLULU;
HEALTHSOUTH dba HEALTHSOUTH REHABILITATION CENTER OF
HONOLULU SATELLITE i; HEALTHSOUTH dba HEALTHSOUTH
REHABILITATION CENTER OF WAIPAHU; HEALTHSOUTH dba
HEALTHSOUTH SPORTS MEDICINE & REHABILITATION CENTER
(HILO) ; HEALTHSOUTH dba HEALTHSOUTH SPORTS MEDICINE &
REHABILITATION CENTER SATELLITE 1 (PAHOA) ; HEALTHSOUTH
dba HEALTHSOUTH SPORTS MEDICINE & REHABILITATION CENTER
OF KONA; HEALTHSOUTH dba HEALTHSOUTH REHABILITATION
CENTER OF KAUAI; HEALTHSOUTH dba KINESIS HAWAII INC.;
HEALTHSOUTH dba ALOHA PHYSICAL THERAPY INC. ; THE
INDEPENDENT PHYSICAL THERAPY NETWORK OF HAWAII;
PATIENTS IN TRANSITION; RAINBOW REHABILITATION SERVICES
INC. dba PERCH; ACTION REHAB, INC.; HAWAII ERGONOMIC
AND REHABILITATION CLINIC, INC. ; HAWAII PHYSICAL,
‘THERAPY, INC.; ISLAND REHAB, INC.; MAUKA PHYSICAL
THERAPY; JOHN EASON, P.T., individually and dba KONA
PHYSICAL THERAPY, LTD.; RICHARD E. BLITZER, R.P.T.
GREG S. COLLINS, L.M.T.; ANTHONY DiFRANCISCO, L.M.T.;
CHARLES GARDNER, individually and dba LAHAINA
ACUPUNCTURE & MASSAGE CENTER; BETTY LAU, L.M.T.
individually and dba HALOA; RONALD ¥. HANAGAMI, P.T.;
SCOTT HARVEY, individually and dba BIOFEEDBACK’ CENTER
OF THE PACIFIC, INC.; BRIAN H. HOZAKI, individually and
dba HOZAKI PHYSICAL THERAPY; JONATHAN B. LIGHT, M.D.,
B.A.C.; MAITREYI R. LIGHT, L.M.T.; K.T, MELLON, L.A.C.,
M.A.S.; JENNIFER NICKLAW, L.M.T.; NEIL PRIMACK, P.T.,
individually and dba INTEGRATIVE PHYSICAL THERAPY;
LORITA WHITNEY, individually and dba WITKO, INC. dba
HAWAII KAI THERAPEUTIC CENTER, also dba HOLISTIC CENTER
OF THE PACIFIC, INC.; VICTOR M. YAMAMOTO, individually
and dba UNIVERSAL MASSAGE; KALIHI REHAB SERVICES, INC.
WAIANAE VALLEY PHYSICAL THERAPY, INC. ; WAIPAHU PHYSICAL
THERAPY, INC.; RUSSELL K. YAMADA, P.T. dba TOTAL
FITNESS PHYSICAL THERAPY; ACTIVE REHAB; ACUPUNCTURE
ASSOCIATES OF OAHU; HEALTH VENTURES, INC.; PACIFIC
PHYSICAL THERAPY, INC. ; ALLAN YAMAUCHI, L.M.T.
HAWAIIAN REHAB SERVICES, INC.; DREW YAMAMOTO, L.M.T.;
and
*** FOR PUBLICATION ***
WORKSTAR OCCUPATIONAL HEALTH SYSTEMS, INC.; MAUI
OCCUPATIONAL HEALTHCENTER, INC.; KABBA ANAND, D.A.C.;
ELLY HUANG, D.P.M.; PAULA LENNY, M.D.; JENNIFER
NICKLAW, L.M..; BRETT SNELLGROVE, R.P.7.;
Plaintiffs-Appellants,
vs.
HAWAIIAN INSURANCE & GUARANTY COMPANY, LTD. ; FIRST
INSURANCE COMPANY OF HAWAII, LTD.; GEICO; PACIFIC
INSURANCE COMPANY, LTD.; DAI-TOKYO ROYAL STATE
INSURANCE COMPANY, LTD.; PROGRESSIVE ADJUSTING COMPANY,
INC.; BUDGET RENT-A-CAR SYSTEMS, INC.; AIG HAWAIT
INSURANCE COMPANY, INC. ; UNITED SERVICES AUTOMOBILE
ASSOCIATION; ISLAND INSURANCE COMPANY, LTD.; ADP
INTEGRATED MEDICAL SOLUTIONS, INC. fna MEDICAL BILLING
REVIEW SERVICES, INC.; MEDCOST, INC. ; ALLSTATE
INSURANCE COMPANY; ALEXIS; LIBERTY’ MUTUAL GROUP; STATE
FARM INSURANCE COMPANY; TIG INSURANCE COMPANY; AETNA
LIFE & CASUALTY; CRAWFORD & COMPANY; FIREMAN’S FUND
INSURANCE COMPANY; TOKIO MARINE & FIRE INSURANCE
COMPANY, LTD.; TRAVELERS PROPERTY CASUALTY; JOHN DOES
1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOB
CORPORATIONS 1-10 and DOE ENTITIES 1-10,
Defendants-Appellees.
NO. 24634
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 98-1752-04 (VLC))
DECEMBER 7, 2005
MOON, C.J., LEVINSON,JJ.; CIRCUIT JUDGE WALDORF,
IN PLACE OP NAKAYAMA, J., RECUSED;
INTERMEDIATE COURT OF APPEALS ASSOCIATE JUDGE LIM,
IN PLACE OF ACOBA, J., RECUSED; AND CIRCUIT JUDGE
HIRAI, IN PLACE OF DUFFY, J., RECUSED
OPINION OF THE COURT BY MOON, C.J.
Plaintiffs-appellants, approximately 322 unaffiliated
Hawai'i health care providers (hereinafter, collectively, the
providers], bring this interlocutory appeal pursuant to Hawai'i
-7-
*** FOR PUBLICATION ***
Revised Statutes (HRS) § 641-1(b) (1993),* challenging the August
30, 2001 nonfinal appealable ruling of the Circuit Court of the
First Circuit, the Honorable Virginia L. Crandall pré
ting,
denying their motion for partial summary judgment ané granting
partial summary judgment in favor of defendants-appellees
automobile insurers and adjusters (hereinafter, collectively, the
insurers).*
2 ums § 641-1(b) provides, in relevant part, as follows:
pen application made within the tine provided by the miles
of court, an appeal in a civil matter nay be allowed by a
circuit court in ite discretion... from any interlocutory
‘whenever the circuit court may
for the speedy tersination of
Litigation before it.
2 pitially, Dai-Tokyo soyal state insurance Company, Ltd.; First
Ingurance Company of Hawaii, Ltd.) Governnent Enployees Insurance, Co.
(GEICO); Progressive Adjusting Company, Inc.; Budget Rent-A-Car Systems, Inc.;
AIG Hawaii Ingurance Company, Ine.} Teiand Ineurance Company, Ltd.; Liberty,
Mutual Group; State Farm Insurance Company; TG Insurance Company; Firenan’s
Fund Insurance Conpany: and Tokio Marine and Fire Insurance Company, Led.
hereinafter, collectively, the Dai-Toyko insurers) were the only asur
jointly file the cross-notion for summary judgwent. "On February 9, 200%,
Hawaiian Tegurance and Guaranty Conpany, Led, filed ite motion to join the
Daf~Tokyo insurers’ crose-moticn for sumary judgenent. "On February 13, 2001,
Pacific ineurance Company, utd. filed ite joinder notion and on February 21,
2001, Crawford & Conpany filed the sane
om appeal, the Dai~Toyko insurers filed their answering brief, which
crawford and Company joined. Pacific Insurance Company, Aecaa Life &
Gasuaity, and travelers Property Casualty filed a separate anawering brief.
‘This court need not address the arguments presented in that brief because the
providers, on Novesber 18, 2002, fiied a stipuiation for partial dismissal of
Eheiz appeal against these three insurers, Tt should further be noted that
Island ingurance filed ite own angwering brief after it substituted The
Pacific Law Group as counsel, essentially adopting and incorporating by
Feference the argunents set forcn by the Dai-Tokys ineur
Aithough not relevant to this appeal, other nared defendants in this case
include Hawailan Insurance and Guaranty Co., Led. Allstate Insurance Co-1
Alexis; John Does 1-10; Jane Does 1-10; Doe’ Parsnerships 1-10; Doe
Corporacions 1-10) and Doe Entities 1-10, ‘The procedural history of this c
Shows that the providers stipulated to the dismissal of ADP Integrated Medi
Solutions, Ine. fka Medical Billing Review Services, Thc., end Nedcost, Tne
on May 10, 2000, United Services Automobile Association on Decenber 29, 2000,
land Acclanation Insurance Managenent Services on August 3, 2001
*** FOR PUBLICATION ***
a
on appeal, the providers argue that the circuit court
erred in: (1) finding that the written notice of denial of
benefits mandated by HRS § 431:20C-304(3) (B) (1993), quoted
infra, (hereinafter, HRS § 431:10C-304(3) (B), Section (3) (B), oF
the subject statute] is inapplicable to the subject billing
disputes; (2) concluding that Hawai'i Administrative Rules (HAR)
§ 16-23-120 (1993), quoted infra, applies; and (3) retroactively
applying the May 30, 2000 legislative amendments to the subject
statute and the September 16, 2000 Insurance Conmissioner’s Order
in GEICO v. Dep't of Commerce & Consumer Affairs (DCCA), INS-DR-
2001-1.
For the reasons discussed herein, we vacate the circuit
court's August 30, 2001 order denying the providers’ motion for
partial summary judgment and granting partial summary judgment in
favor of the insurers and remand this case for further
proceedings consistent with this opinion.
1. BACKGROUND
A. Factual Backaround
‘The facts of thia case are uncontested. Between
January 1, 1993 and December 31, 1999, each of the providers
submitted bills to one or more of the insurers for non-emergency
treatments rendered to thousands of personal injury protection
(PIP) ingureds allegedly injured in motor vehicle accidents. The
insurers were obligated to pay appropriate PIP benefits under HRS
chapter 431:10C on behalf of their insureds. For purposes of
*** FOR PUBLICATION ***
——
billing, the existing workers’ compensation fee schedule was
adopted as the payment fee schedule applicable to medical and
rehabilitative services provided as no-fault benefits for persons
0c-308.5(a) and (b)
injured in automobile accidents. HRS §§ 431:
0C-308.5(a), “the term ‘workers’
(2993), Under section 43
compensation schedules’ means the schedules adopted and .
establishing [the] fees and frequency of treatment guidelines.
The workers’ compensation schedule assigns a medical procedure
code and a fee to each item of service rendered by health care
providers. The providers, in preparing their bills for
submission to the insurers, are required to follow the “fees and
frequency of treatment guidelines" contained in the workers’
compensation schedules. HRS § 431:10C-208.5(b). The insurers,
however, rather than pay the bills as submitted, or deny the
claim (in whole or in part), altered the treatment code because
they believed that, “{blased on the available information, the
services rendered appear to be best described by [a different
medical treatment) code. The resulting effect of changing the
treatment codes was a reduction in the payment for the service
rendered, which the parties generally refer to as “down-coding.”?
2 A description of ‘dowm-coding” can be found in several affidavite
that were attached to the summary judgnent notions and basically explain the
sene procedure. For example, the affisavit of Darcy Tavares, a provessional
coder certified by the Anerican of Acadeny of Profersional Codere and a
Licensed independent bill reviewer, describes several snetances where 2
provider listed a redical treatnent code and its attendant cont on the billing
Statenent, and her reasons for dows-coding. In one of those instances, @
charge was subsitted by the provider for an initial office visit, with code
99203 and the corresponding fee of §76.37. Tavares notes that code 9209
requires the provider to meet “three conponents of subscantiating che clais by
‘continued...
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* FOR PUBLICATION ***
‘The insurers, thus, (1) paid the bills pursuant to the adjusted
treatment codes and (2) offered to negotiate with the providers
as to the unpaid portions.
B. Procedural Backaround
on April 15, 1998, the providers filed a complaint
against the insurers for the alleged underpayment for services
rendered under their respective no-fault insurance contracts.
count I alleged that the insurers unlawfully down-coded, thereby
xeducing the amounts of the providers’ bills without issuing
0c-304(3) (B), oF
denial letters, in violation of HRS § 43:
seeking peer review, as required by HRS § 431:10C-308.6 (1993).
(continued)
the subuission of ~ (i) history, (4i) physical exanination information, and
(340) ‘wedical decision making(.j* The provider, hovever, submitted only a
Schacked-off" list that these three itens were done, withost he proper
Gocunentation. Because the provider failed to meet the three submienion
Fequirenents for code 39203, the changed the code to. 99202, which, in her
View, sore appropriately conformed to she documentation eubmitted. As a
Fesuit, the provider was paid the applicable fee for code 99202, ie., $55.40
Tavares’ affidavit explains other Gown-coding instances that basically amount
to matching the documentation provided with what was deemed to be the
appropriate treatment. code.
+ on gune 19, 1997, HRS § 432110C-308.6 was repealed by Act 251. 1997
Hav. Sega. L., Act 251 § 50 at 551. The repeal went into effect on January 1,
1998. "Id. ai'ss3. However, at the relevant times herein, HRS § 4321100-308.6
provided in relevant pare:
(a)... . 1€ an insurer desires to challenge:
treatment and rehabilitative services in excess of the fee
Schedules or treatment guidelines, the insurer may 40 20 by
filing, within five working days Of a request made pursuant
to subsection (4), a challenge with the commissioner for
Submission to a péer review organization
ig) “1 the incurer challenges a bill for medical
eveatnest or rehabilitative services within thirty days of
Feceipt, the insurer need not pay the provider for the
Aigputed portion of the bill subject to the challenge until
2 determination has been nade by the peer review
Organization
(h) Té @ peer review organization determines that
erestnent of rehabilitative services were sepropriste and
(continued
-1n-
*** FOR PUBLICATION ***
Count 11 alleged that the insurers breached their no-fault
insurance contracts by failing or refusing to pay for services
rendered.’ The complaint sought declaratory and injunctive
relief against down-coding of the providers’ bills and danages
for the underpaid amounts of the bills. ‘The providers’ complaint
involves disputes regarding over 30,000 bills, approximately
10,000 of which have been produced in discovery.
In May 2000, Act 138 was signed into law, which anended
HRS §§ 431:10C-304 and 431:10C-308.5 by, anong other things,
adding section 6 to HRS § 431:10c-304 and section (e) to HRS
§ 431:10C-308.5. Section 4 of the act stated that *[t]his act
shall take effect upon its approval.* 2000 Haw. Sess. L. Act
138, § 4 at 271. The act was approved on May 30, 2000. Id. The
new subparagraph (6) of HRS § 431:10C-304 (Supp. 2004) states:
Disputes between the provider and the insurer over the
anount of a charge or the correct fee or procedure code to
be used under the workers’ compensation supplemental medical
fee schedule shall be governed by section 431:10C-308.51.)
HRS § 431:10C-308.5(e) (Supp. 2004) states:
-continued)
Yeasonable, che insurer shall pay to the provider the
Outstanding ancunt plus interest at a rate of one and
Gne-half percent per month on any amount withheld by the
insurer pending che peer review.
‘The complaint originally contained five counts. Counts 2, Ir, and
Ut allege chat the insurers arbitrarily, unlawfully or {Llegally “dow coded"
the bills subsicted by the providers so that coverage for the services
provides would be less; Count iv alleges that the insurers’ action
Feonstitutes an unfair claim settienent practice,” in violation of HRS
§ 431:13-103 (a) (10); and Count V alleges a cause of action for unfair and/or
deceptive acts and/or practices, in violation of HRS § 480-2. In thelr second
‘anended complaint, the providers added Counts VI and VII, alleging clains of
violations of HRS’ $§ 431:10C~10i, ex gag, 431:10¢-304, and 431:30C-308. The
complaint, however, was finally anendea 20 contain only Counts T and IT
wie
*** FOR PUBLICATION ***
in the event of a dispute between the provider and the
insurer Over the amount of a charge or the correct fee or
procegure code to be used under the workers’ compensation
Ripplenentel medical fee schedule, the insurer shall:
Ti) pay all undieputed charges within thirty days
After the insurer has received reasonable proot
Gf the fact and amount of benefits accrued ané
Genand for payment thereof; and
(2) Negotiate sf good faith with the provider on the
Gleputed charges for a period up to sixty days
atter the insurer has received reasonable proot
Gf the fact and amount of benefits accrued and
Genand for paynent. thereof
if the provider and the insurer are unable to resolve the
Aleputer the provider, insurer, or claimant may mubmit the
Gispute to the comissioner, arbitration, or court of
Competent juriediction. Tee parties shail include
Gotinencation of the efforts of the insurer and the provider
fo reach a negotiated resolution of the dispute,
‘Thereafter, on January 10, 2001, the providers moved
for sunmary judgment on Count I as to eleven bills, involving
five providers and ten insurers, for services rendered between
May 28, 1993 and August 5, 1998. The providers asserted that
these bills were unlawfully reduced twenty to sixty percent by
down-coding and without complying with certain statutory
provisions, The providers specifically contended that: (2) the
insurere’ practice of “unilaterally changling] the medical
procedure codes or refus(ing] to pay the procedure codes, as
submitted, to reduce the overall amount of the bill[,]" was
“t1iegai{,]* because such practice is contrary to the peer review
procedure mandated by HRS § 431:10C-308.6; and (2) the insurers
were in technical violation of Section (3) (B) for failure to
provide written notices of their denials of all or part of a
claim within the mandated period.
on February 2, 2001, the insurers filed cross-motions
for partial summary judgment on Count I as to the eleven bills,
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*** FOR PUBLICATION ***
arguing that the bills were lawfully adjusted and that the
underpayments were negotiable. The insurers averred that,
because they accepted all treatments rendered in connection with
the eleven bills as reasonable, neceesary, and appropriate, they
were not obligated to issue a written denial purauant to Section
(3) (B) or seek peer review under HRS § 431:10C-308.6. The
insurers sought a ruling, as a matter of law, that they utilized
the correct billing dispute resolution mechanism when they paid
the undisputed portion of the bills at issue and offered to
negotiate the remaining balance in accordance with HAR
§ 16-23-120 and the 2000 amendment to HRS § 431:10C-308.5. In
support of their position, the insurers relied upon (1) the
Insurance Commissioner's Order in GEICO, issued on September 18,
2000, adopting the insurers’ position in its entirety and (2) the
May 30, 2000 legislative amendments to HRS §§ 431:10C-304 and
431:10C-308.5.
After a hearing on February 23, 2001 on both motions,
the circuit court, in its minute order of August 3, 2001, denied
the providers’ motion for partial summary judgment and granted
the insurers’ cross-motion, essentially adopting the insurers’
arguments, namely, that HRS §§ 431:10C-304 and 431:10C-308.6 are
inapplicable to the facts of this case and that HAR § 16-23-120
applies. On August 30, 2001, the court entered it written
ruling, wherein it found and concluded that
o14-
*** FOR PUBLICATION ***
phe bitte at 4
insurer has accepted the treatment as reasonable and
appropriate and has paid the undisputed amount of the bill
and are not bills for which the [insurers] were required to
issue a forsal denial or sesk peer review of the billing
Aieputes. Further, the Court finde that the *72-hour
treatment" cases are inapposite to che instant matter
GWAR} Sec. 16-23-120 (1993) applies. The Court holds that
the [insurers] utilized the correct billing] dispute
nechanisn. (*)
Im the meantime, the providers, on August 27, 2001, filed a
motion for clarification of the circuit court’s minute order.
‘The motion sought to clarify that the court's order applied to
only those billing disputes arising after January 1, 1998, the
date the peer review statute was repealed. ‘The court denied the
motion on October 15, 2001.
Prior to the denial of their motion for clarification,
the providers, on September 14, 2001, filed a motion for
certification of the order granting the insurers’ cross-notion
for partial summary judgment and denying the providers’ motion,
pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 54(b)
(2000),” or, in the alternative, for leave to file interlocutory
§ Although the minute order stated that Judge Crandall granted partial
sumary judgnent as to the joinders to the Dal-Tokyo insurers’ ‘cross-motion,
the foreal order only expressly reflects the grant of partial summary Jodgment
In favor of the Dai-Tokyo insurers.
nce mule 54(b) provides, in pertinent part, as follows
(b) udgnent upon multiple clains or involving
multiple parties. when nore than one claim for relief is
resented in an action, the court nay direct the entry
of a final judgrent as to ‘one or nore but fever than all of
the claims or parties only lupen an express direction
for the entry of judgment. “ra the ahsence of such
determination and direction, any order or other form of
Geciston, Rovever designated, which adjudiestes fewer than
al! the clains or the rights and abilities of fewer than
11 the parties shall not terminate the action as to any of
the elaine or parties, and the order or other form of
(continued.
o15-
*** FOR PUBLICATION ***
After a hearing on September 27, 2001, the circuit
appeal
court filed ite order, dated October i, 2001, denying the
providers’ request for HRCP Ru’e 54(b) certification, but
granting leave to file an interlocutory appeal, finding that,
under the specific circumstances of this case(.] a
significant riling has been issue on che bill (ing) dispute
mechanism and that an interlocutory appeal will provide for
W'apeedier termination of the litigation.
on October 18, 2001, the providers filed a timely notice of
appeal.”
12. STANDARDS OF REVIEW
A. Summary Judament
“We review the circuit court’s grant or denial of
summary judgment de novo.” Yamagata v. State Farm Mut. Auto.
Img. Co., 107 Hawai'i 227, 229, 112 P.3d 713, 725 (2008) (citing
continued)
Gecivion se subject to revision at any tine before the entry
Of judgment adjudicating all ehe claims and the rights and
Uabiiseles of all the parcie!
(Bephasie in original.)
+ mis court hae indicated thats
Ae a general matter, an appellate court's jurisdiction is
Pieleedto's review of einel judgmenta, orders and decrees
A judgeent le final when sil Claims of the parties to the
Cage have been terminated. Absent the entry of final
Sosgnest, ae to all claims, an appeal nay generally be taken
froma nontinal order or decree if (1) leave to take
Enterlocutory appeal has been granted by the circuit court
pursuant to HRS § €41-1(b);, (2) the order or decree has been
Gereified as final for appeal purposes pursuant to [HRCP)
Rule s4(b) (01
1 a ion, Te-, 87 Hawai'i 37, 49, 951
AE 94, 98-59, 924 P.28
Fought & co, inc, v, Steel fna’a & Erection,
Brad 487, 495-(2998) (eiting Kong v. Takevehi, 63 ia
568, 292-93 (app. 1996)) (eone Brackets added) (sone brackets in criginal).
+ an order extending the tine for appeal was entered september 25,
2002, extending the tine for appeal fron Septenber 29, 2001 to October 29,
2oot ‘because the notion for interlocutory sppesl had bean calendared for
hearing on October 22, 2002
-16-
*** FOR PUBLICATION ***
ee
wad red: v 94 Hawai" 223, 223, 22
P.3d 1, 9 (2000)). The etandard for granting a motion for
summary judgment is well established:
[slunmary judgeent is appropriate if the pleadings,
depoeieigns, snawers to interrogatories, nd admissions on
file, together with the affidavite, if any, show that there
{eno genuine issue as to eny material fact and that the
noving’party ie entivied to judgment as a satter of law. A
fact Je material if proof of that fact would have the effect
Of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
Evidence must be viewed in the Light most favorable to the
Sonmoving party. Invcther words, we must view all of the
Gvidence and the inferences dvawn therefros in the Light
fost favorable to the party opposing the motion,
Querubin v. Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 697 (2008)
(citations omitted) (brackets in original).
Statutory Interpretation
“Questions of statutory interpretation are questions of
law to be reviewed de nove under the right/wrong standard." Guth
v. Freeland, 96 Hawai'i 147, 149-50, 28 P.3d 982, 984-65 (2001)
(citations omitted).
IIT, DISCUSSION
As previously stated, the providers, on appeal, advance
three points of error regarding the circuit court’s order denying
their motion for partial summary judgment and granting the
insurers’ cross-motion, alleging that the circuit court erred in:
(2) finding that the insurers were not required to issue formal
written notices of denial for partial payment of medical bills
pursuant to HRS § 431:10C-304(3) (B); (2) ruling that HAR
-17-
FOR PUBLICATION ***
§ 16-23-120 applies to the subject billing disputes; and
(3) relying on the subsequent legislative amendments and the
Insurance Commissioner‘s decision in GEICO for any medical bill
submitted prior to May 30, 2000.
A. - BI
Preliminarily, we note that an insurer's obligation to
pay no-fault benefits" is set forth in HRS § 431:10¢-304(3) (A),
which provides that “[p]ayment of no-fault benefits shall be made
within thirty daye after the insurer has received reasonable
proof of the fact and amount of benefite accrued, and demand for
payment thereof.” (Emphasis added.) In other words, an insurer
shall pay no-fault benefits within thirty days of receipt of a
provider’s billing statement showing “the fact,” ive., the
“Because the providers, on appeal, error in the circuit
court’s conclusion that the indurers’ dispute over fees and procedure codes ie
hot subject to the (now repeaied) peer review statute, HRS §'431:100-308-€,
the providers have waived thie argunent for purposes of this appeal. gee iing
a vokovana, $1 Hawai'i 131, 135, 80 7.24 1005, 1009 (App. 1999) (citing Zou
78 Hawai'i 21, 29 0.19, 889 P28 705, 73 n.39,
(oesiy-
% stlonfault benefits are defined in HRS § 432:100-203(20) (A) and
states in relevant pare
(A) o-fault benefits, sometines referred to as personal
injury protection benefice, with respect to any,
accidental harm mean:
(i) R12 appropriate and reasonable expenses
ily incurred for medical, hospital
Surgical, professional, nursing, ‘dental,
optonetric, anbulance, prosthetic services
products and accomodations furnished, and
x-ray
All appropriate and reasonable exsensee
necessarily incurred for peychiatric, physical,
‘and occupational therapy and renabilitatients]
-18-
*** FOR PUBLICATION
treatment services, and ‘the amount of benefits," ise, the
charges or cost of treatment services
At the time the providers’ claims arose, Section (3) (8)
provided:
(B) Subject to section 431:10C-308.6, relating to peer
Feview, if the inurer elects to deny'a claim for’
benetite in whole or in part. the insurer shall
‘within
thirty days gotity the Claimant i writing of the
i ‘The denial
Botice shall be prepared and salted by the ineurer in
triplicate copies and be in a forsat approves by the
Commissioner. In the case of benefite for services,
Specifies in’ section 431:10¢~203(10) (A) (1) ana (1!)
the insurer shall also mail a copy of the denial eo
the provider.
(Emphases added.) The providers maintain that the subject
statute clearly sets forth the applicable procedure when an
insurer wishes to deny ‘a claim for benefits,* that is, treatment
services and/or costs, “in whole or in part" and that any partial
Payment of medical bills constitutes a denial and triggers the
insurer's obligation under the statute to provide written notice
within thirty days. In response, the insurers assert that, where
they have accepted the treatment rendered as reasonable and
appropriate and the sole dispute concerns the appropriate charges
for that treatment, such dispute is outside the scope of the
subject statute. Thus, the dispositive issue on appeal is
whether ‘a claim for benefits" under HRS § 431:10C-306(3) (B)
encompasses treatment services and the costs attendant thereto
such that a denial of services and/or costs, in whole or in part,
triggers the notice requirement specified in the statute.
-19-
FOR PUBLICATION ** *
We begin our analysis by examining the plain language
of the statute at issue. Zanakis-Pico v, Cutter Dodge, Inc., 98
Hawai'i 309, 316, 47 P.34 1222, 1229 (2002). Tn ao doing, “our
foremost obligation is to ascertain and give effect to the
intention of the legislature, which ie to be obtained primarily
from the language contained in the statute itself." Yamagata,
107 Hawai'i at 229, 112 P.3¢ at 715 (citations omitted); see also
Allstate Ins. co. v. Schmidt, 104 Hawai'i 261, 265, 88 P.3d 196,
200 (2004) (*{WJhere the language of the statute is plain and
unambiguous, our only duty is to give effect to its plain and
obvious meaning." (Citations omitted.) (Brackets in
original.)).
As previously indicated, the insurers maintain that
they were not obligated to provide notice because the sole
dispute centered around the charges and not the treatment
services. Section (3) (8), however, does not limit an insurer’s
obligation to provide notice only when the insurer elects to deny
a claim for treatment services. In reading the first and second
sentence of Section (3) (5), it is clear that "a claim for
benefita’” includes both treatment services and the charges
attendant thereto. The first sentence of Section (3) (B)
indicates that any denial of ‘a claim for benefits," either in
whole or in part, requires the issuance of a denial notice to the
-20-
*** FOR PUBLICATION ***
claimant. The second sentence states: ‘In the case of
benefits for services . . . the insurer shall also mail a copy of
the denial to the provider." (Bmphases added.) In other words,
if an insurer elects to deny a claim for treatment services
and/or cost, in whole or in part, it must notify the claimant; if
the denial involves treatment services, the insurer -- in
addition to notifying the claimant -- mist also notify the
provider of the denial. If we were to limit the phrase “claim
for benefits’ as used in the first sentence of Section (3) (8) to
treatment services only, as the insurers urge, the second
sentence would be rendered superfluous. See In xe City & County
of Honolulu Corp, Counsel, 54 Haw. 356, 373, 507 P.2d 169, 178
(1573) (applying the “cardinal rule of statutory construction
that a statute ought upon the whole be so constructed that, if it
can be prevented, no clause, sentence or word shall be
superfluous, void, or insignificant” (citations omitted)
(emphases added) ).
We further note that nowhere in HRS § 431:10C-304 does
to down-code the billings. tn fact,
it authorize the insur
HRS § 431:10C-304(3) (C) specifically provides
under ERS § 432/10C-204(3) (B), denial notices of a claim for
benefits are made to the claimant and not the providers, as they suggest.
Nonetheless, Jt ie undisputed that the snaurere di not provide notices to
either che claisants or the providers
o21-
*** FOR PUBLICATION ***
if the insurer cannot pay of deny the claim for benefice
because additionsl information or loss documentation se
heeded, the insurer shall, within thirty days, forvard to
the claimant an itemized iiet of all the requirea documents
In the case of benefits for services specifies in section
aS11100-103 (a) (1) and (44) (eee gupra note 13], the insurer
shall algo forvard the list to the service provider.
(Bnphases added.) Inasmuch as the insurers’ down-coding was
based on lack of sufficient information to support the declared
treatment code, the insurers were required to forward to the
claimant and the provider “an itemized list of all the required
docunents.*
In light of the unambiguous mandatory language of HRS
§ 431;100-304(2) (B), an insurer ie required to provide written
notice of its denial -- in whole or in part -- of the clain for
benefits. written notice to the clainant is required where the
to the treatment service and/or
denial or partial denial relat:
the charges therefor. where the denial or partial denial
involves treatment services, the insurer must also provide
weitten notice to the provider. We, therefore, hold that the
circuit court erred in ruling that “billing disputes where the
Ansurer(s] halve] accepted the treatment as reasonable and
appropriate and halve] paid the undisputed amount of the bill
_ are not bills for which the [insurers] were required to
issue a formal denial [in accordance with Section (3) (B) .]*
B. Dicabilit 120
‘The providers next contend that the circuit court
erroneously concluded that HAR § 16-23-120 applies to the instant
billing disputes. The insurers maintain that HAR § 16-23-120,
-22-
*** FOR PUBLICATION ***
which provides a billing dispute resolution mechanism, controls
and that, therefore, the billing disputes at issue fall outside
the purview of HRS § 431:10C-304(3) (B)
HAR § 16-23-120, entitled “Dispute Regarding Charges,”
adopted by the Ineurance Commissioner in 1993, provides in
fd pursuant to Exhibit “A to
ie) the insurer shall pay
all charaes notin dispute i negotiate in good faith
With the provider on the disputed charges. Such diaputes
(b)- Tf che provider and the insurer cannot resolve
the dispute, either party nay make @ request to the
commissioner for a nearing.
(Emphases added.) We recognize that the Insurance Commissioner
has the authority to promilgate administrative rules pursuant to
HRS § 43)
oc-214 (1993)” and, most significantly, "to adopt
administrative rules relating to fees or frequency of treatment*
as permitted by HRS § 431:10C-308.5(b). We also recognize that
an administrative agency's interpretation of its own rules ‘is
normally accorded great weight.” Coon v. City & County of
Honolulu, 98 Hawai'i 233, 251, 47 P.3d 348, 366 (2002). However,
“i]t is axiomatic that an administrative rule cannot contradict
SERS § 492:200-214 provides in pertinent part!
In order to carry out the provisions and fulfill the
purpose of thie article, the commissioner shall:
{2} Aaope, amend and repeal such rules, pursuant to
chapter $1, a the commissioner dens necessary to carrying
out and fulfilling the purposes of this article, and to
establishing standards for the prompt, fair and equitable
Gigposition of all claine arising out of moter vehicle
accidents {1
-23-
*** FOR PUBLICATION *
oF conflict with the statute it attempts to implement." Aggalud
Blalack, 67 Haw. S88, 591, 699 P.24 17, 19 (1985) (citations
omitted). Pursuant to HRS § 91-7(b) (1993), this court “shall
declare the [administrative] rule invalid if it finds that it
violates . . . statutory provisions, or exceeds the statutory
authority of the agency, or was adopted without compliance with
statutory rulenaking procedures.” See also In re Water Use
Remit Applications, 94 Hawai'i 97, 145, 9 P.34 409, 457 (stating
that ‘we have not hesitated to reject an incorrect or
unreasonable statutory construction advanced by the agency
entrusted with the statute's implenentation"), reconsideration
denied, as amended, 94 Hawai'i 97, 9 P.3d 409 (2000).
under HAR § 16-23-120, disputes relating to “the amount
of a charge or the correct fee and procedure code" need not "be
filed with the [Insurance] Commissioner for submission to [pleer
[rleview." Rather, it authorizes insurers to make partial
payment of charges “not in dispute’ and negotiate with the
providers on “the disputed charges." The peer review exemption,
however, clearly conflicts with the plain language of HRS
§ 431:10C-304 (3) (B) that was in existence before the repeal of
the peer review statute. Prior to the repeal, an insurer's
denial of benefite, in whole or in part, was *[s]ubject to
e review." HRS
section 431:10C-308.6, relating to p
§ 431:10C-304(3) (B), Inasmuch as HAR § 16-23-120 exempts
ingurere from the peer review procedure for controversies
-24-
*** FOR PUBLICATION ***
relating to treatment services and/or the coste attendant
thereto, we hold that HAR § 26-23-120 contravenes the express
requirement of Section (3) (B) and is therefore void and
unenforceable to this Limited extent.
As a result of the January 1, 1996 repeal of the peer
review statute, the legislature deleted the phrase *[s]ubject to
section 431:10C-308.6, relating to peer review" from Section
(3) (B) ae part of the 2000 amendments to HRS § 431:10C-304.
‘Thue, an insurer's denial or partial denial of a claim for
benefits is no longer subject to peer review." Accordingly, HAR
§ 16-23-120 does not conflict with the plain language of the
subject statute as of the repeal date of the peer review statute.
However, we emphasize that nothing in HAR § 16-23-120
(a) relieves the insurers of their obligation to provide the
written notice required by HRS § 431:10C-304(3) (B) when the
insurer wishes to challenge, in whole or in part, a bill for
medical treatment or (2) authorizes the insurers’ practice of
down-coding. Accordingly, to the extent that HAR § 16-23-120 is
consistent with the subject statute after January 1, 1998, we
MWe note that HRS § 432:10C-212 (1993) provides a remedy for a denial
of benefits, stating that:
(a) If a claimant or provider of services object to
the denial of benefits by an ineurer or self-insurer
pursuant to section 432-100-204 (3) (3) and desires an
Administrative hearing thereupon, the claimant or provider
Of services shall file with the Commissioner, within
Gaya after the date of denial of the claim, |. (2) a
written request for review(.]
Further, ed § 431/100-2129 (1993) permite the submisaion of any dlepute
felating to a so-fault policy to an arbitrator fy filisg written request with
the clerk of the circuit court in the circuit where the accident occurred.”
-25-
*** FOR PUBLICATION ***
hold that the insurers remain obligated to provide formal
denial notices of a clain for benefite in accordance with
Section (3) (3).
cc. Retze: Ov. BOCA
The providers argue that, in concluding that HAR
§ 16-23-120 applies, the circuit court erred in retrospectively
applying (1) the subsequent legislative anendnents to HRS
§§ 431:10C-304 and 431:10C-308.5 as well as (2) the Insurance
Commissioner's Order in GEICO issued on September 18, 2000. In
support of their contention, they point to the August 30, 2001
order. The order, however, made no reference to the amendments
or the GEICO decision, and it is unclear from the record whether
the circuit court relied, if at all, upon them. Because the
providers did not direct us to anywhere else in the record that
demonstrates the circuit court retroactively applied the
amendments or the decision, we believe they have failed to meet
their burden of showing that the circuit court erred. Ala Moana
Boat Owners’ Asa’n vy. State, 50 Haw. 156, 159, 434 P.2d 516, sia,
xeb’o denied, 50 Haw. 181, 434 P.2d 516 (1967); see also Inze
Eetate of Lee Chuck, 33 Haw. 445, 451-52 (1935) ("[There is] a
general presumption . . . in all legal proceedings that judicial
tribunals . . . act according to law. On appeal . . . from the
decision of an inferior judicial tribunal an appellate court will
presume in review that it has complied with all the requirements
-26-
FOR PUBLICATION ***
of law and that its determination rested on facts sufficient to
sustain them." (Citations omitted.))
IV. CONCLUSION
In light of the foregoing, we vacate the First Circuit
Court’s August 30, 2001 order denying the providers’ motion for
partial summary judgment and granting partial summary judgment in
favor of the insurers, and remand this case to the circuit court
for further proceedings consistent with this opinion.
on the briefs ore
Guy A. sibitla and
Joseph L. Wildman ecciByloLn
(of Sibilla & Wildman),
for plaintiffs-appellants
Richard B. Miller (of
Tom Petrus & Miller),
for defendants-sppellees
Dai-Tokyo Royal State :
Ins. Co., Ltd., et al.
Jeffrey H.K. Sia, Steven
L. Goto, and Gary 8.
Miyamoto (of Ayabe, Chong,
Nishimoto, Sia & Nakamura),
for defendants-appellees
Pacific Ins. Co., Aetna
Life & Casualty, and Travelers
Property & Casualty
Nancy Ryan and Patrick
K. Kelly (of The Pacific Law
Group) for defendant -appellee
Teland ins. Co., Ltd.
George W. Playdon, Jr. and
Jefizey K. Hester (of Reinwald,
0’ Connor & Playdon), for
defendant -appellee Crawford
& Company
-27-
|
167a991c-7f51-4d23-b4ea-2ef0adca8493 | State v. Abordo | hawaii | Hawaii Supreme Court |
JPREME COURT
vUBRARY
26 2005 7
*** NOT FOR PUBLICATION ***
No. 26111
IN THE SUPREME COURT OF THE STATE OF HAWAI'I of Howat
STATE OF HAWAI'I, Plaintiff-Appellant,
RICKY N, H. ABORDO, Defendant-Appellee.
qaws
APPEAL FROM THE SECOND CIRCUIT COURT
(CR. NO. 02-1-0561(1))
‘SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
£0
Plaintift-appellant the State of Havai'i (the State)
appeals from the August 26, 2003 findings of fact, conclusions of
law, and order of the cizcuit court of the second circuit, the
Honorable Joel &. August presiding, granting defendant~appellee
Ricky N.H. Abordo’s motion to suppress.
The cireult court ordered suppression in part because
the warrant that authorized a search for the evidence seized
erroneously commanded police to search a location different from
that described in the warrant’s recitation of probable cause.
On appeal, the State contends that suppression based on this
discrepancy was wrong because: (1) 3 mere typographical error
should not invalidate the seizure of evidence from @ location
sufficiently described in the warrant; and (2) the error did not
prejudice Abordo.
Upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we hold that:
(2) the search warrant violated Hawai'i Rules of Penal Procedure
‘*** NOT FOR PUBLICATION ***
ech a
(HREP) Rule 41(c) (2002) because it commanded police to
location different from that described in the warrant’s
recitation of probable cause and (2) the violation of HRPP Rule
41(c) required the fruits of the search to be suppressed. See
State v, Endo, 83 Hawai'i 87, 924 P.2d 581 (App. 1996).
‘Therefore,
IT IS HEREBY ORDERED that the order from which the
appeai is taten is attimmed,
Simone C. Polak, Y
Bepiey Bioseetting attozney, 7
for the plaintiff-appellant SRM orroe—
State of Hawaii
Bentley C. Adams, IIZ, Psctes eerie ere
Deputy Public Defender,
for the defendant-appellee
Ricky N.H. Abordo POT
Vane, Duddgy br +
|
d41b1277-5fbd-4c0b-a1aa-c6d2ab61279c | Ramsey v. State | hawaii | Hawaii Supreme Court | 1-8¥0 LIBRARY
No. 26557 al
1M THE SUPREME COURT OF THE STATE OF HAWAT'T: =| a”
=
mi
a = 8
WILLIAM WENDELL RAMSEY, JR., sie =
Petitioner/Petitioner-Appellant. 8
STATE OF HAWAI'I, Respondent /Respondent-Appellee
ee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(8.P.P. NO. 03-1-0016(3))
(By: Acoba, J., for the court)
‘The Application for Writ of Certiorari filed on
august 4, 2005 by Petitioner/Petitioner-Appellant William Wendell
Ramsey, Jr. is hereby denied.
DATED: Honolulu, Hawai‘i, August 15, 2005.
FOR THE COUR!
fE
oN if
‘Associate Justice
William Wendell Ramsey,
drs, petitioner/petitioner-
appellant, pro se, on
the writ.
Considered by: Moon, C.J-, Levinson, Nakayama, Acoba, and
betty, 99.
|
73b580c0-8c6a-4fe1-b57d-3bf6716eade0 | Aarona v. GTE Hawaiian Telephone Company, Inc. | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 24166
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
ARTHUR L. AARONA, Claimant-Appellant,
GTE HAWAIIAN TELEPHONE COMPANY, INC. ,
‘Employer-Appellee, Self-Insured,
and
‘TRAVELERS INSURANCE COMPANY, Insurance Adjuster-Appellee.
i
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 99-587 (2-95-05865))
s ESPOSITION ORI
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Claimant-appellant Arthur Aarona (Aarona) appeals from
the February 20, 2001 decision and order of the Department of
Labor and Industrial Relations (DLIR) Appeals Board (LIRAB),
reversing the decision of the Director of the Disability
Compensation Division of the DLIR (Director) and concluding that
(2) Aarona’s shoulder dislocation on February 5, 1999 was not a
compensable consequence of his April 7, 1995 work-related injury,
and, therefore, not the Liability of GTE Hawaiian Telephone
Company, Inc. (hereinafter, "GTE Havaiian Tel.”J, and (2) GTE
Hawaiian Tel. was not liable for the treatment Aarona received at
Kapiolani Medical Center at Pali Momi on February 5, 1999. On
‘appeal, Aarona argues that (1) GTB Hawaiian Tel, was collaterally
estopped from challenging compensability for, and precluded from
*#* NOT FOR PUBLICATION ***
relitigating the nature and scope of, the April 7, 1995 work-
related injury, (2) the February 5, 1999 injury was a
“recurrence” of the April 7, 1995 work-related injury, and,
therefore, compensable, (3) GTE Hawaiian Tel. did not present
substantial evidence to overcome the presumption that the
February 5, 1999 injury was work-related, and (4) GTE Hawaiian
Tel. should not be allowed to “reopen” the issue of
compensability.»
Upon carefully reviewing the record and the briefs
subriitted and having given due consideration to the issues raised
and arguments advanced, we initially note that the stipulation
and settlement agreement did not preclude GTE Hawaiian Tel. from
challenging Aarona’s claimed compensability for the February 5,
+ parona challenges the following findings of fact and conclusions
of Law:
FINDINGS OF FACT
18. (Aarona] has not presented any medical evidence
that his left shoulder isiocstion on February 5, 1999, was
causally related to the work injury on April 7, 1995.
(CONCLUSIONS OF Law
1. We conclude that the dislocation of (Aarons s]
Lege shoulder on February 5, 1999, was not a compensable
consequence of the April 7, 1895 work injury and is,
Sccordingly, not the Liability of (GTE Hawaiian Tel.) We
Based our conclusion on the opinions of Dr. Davenport, Dr.
Lichter, and Or. Bagby that [Aarone’s) work injury was 3
Kenporary aggravation, and that the dislocation on February
5, 1999 wes a recurrence of a pre-existing recurrent left
shoulder dislocation. (GTE Hawaiian Tel.) has presented
Substantial evidence for us to make this conclusion.
2
‘*** NOT FOR PUBLICATION ***
1999 injury. Contrary to Aarona’s contention, GTE Hawaiian Tel.
was not attempting to challenge its liability for or relitigate
the nature and scope of the April 7, 1995 work-related injury.
Inst
4, when Aarona reopened his case for the April 7, 1995
work-related injury for further benefits for the February 5, 1999”
injury, GTE Hawaiian Tel. challenged Aarona’s claimed
conpensability -- the critical issue of which was whether the
February 5, 1999 injury was a compensable consequence of the
April 7, 1995 work-related injury. The stipulation and
settlement agreement does not preclude GTE Hawaiian Tel. from
challenging as much.
With respect to Aarona’s remaining points of error on
appeal, we hold that: (1) the LIRAB did not err in concluding
that the February 5, 1999 injury was not a compensable
consequence of the April 7, 1995 work-related injury, inasmuch as
the record provided ample evidence to establish that the
February 5, 1999 injury was not @ “direct and natural result” of
the April 7, 1995 work-related injury, and, therefore, not 2
compensable consequence for purposes of workers’ compensation,
see Davenport v. City and County of Honolulu, 100 Hawai'i 297, 59
P.3d 932 (App. 2001); Korsak v. Hawaii Permanente Med. Group, 94
Hawai'i 297, 12 P.3d 1238 (2000); Tate v. GE Hawaiian Tel, Co,
77 Hawai'i 100, 881 P.2d 1246 (1994); and (2) GTE Hawaiian Tel.
*** NOT FOR PUBLICATION ***
produced substantial evidence expressly, directly, and
specifically rebutting the statutory presumption that Aarona’s
February 5, 1999 injury was a compensable consequence of his
April 7, 1995 work-related injury, see HRS § 386-85(1); Nakamura
ws State, 98 Hawai'i 263, 47 P.3d 730 (2002); Akamine v. Hawaiian
Packing & Crating Co., 53 Haw, 406, 495 P.2d 1164 (1972).
‘Therefore,
IT IS HEREBY ORDERED that the LIRAB’s February 20, 2001
decision and order, from which the appeal is taken, is affirmed.
DATED: Honolulu, Hawai'i, August 31, 2005.
on the brief:
Herbert R. Takahashi,
Stantord Wl. Masus, Danny J. HE cag
Vasconcellos end Rebecos L.
Covert, for claimant=
appellant Arthur L. Aarona ecu Cuatro
Stanford M. J. Manuia, for .
employer-appeliee,
self-insured and insurance
adjuster-appellee Gn
GTE Hawaiian Telephone Co., Inc.
and Travelers Insurance Co.
|
b13dc87d-bd1b-4c5a-96e3-61d107acf2bb | Honda v. Board of Trustees of the Employees' Retirement System of the State of Hawaii | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘*#*P0R PUBLICATION***
eee
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000"
—_— SSS
KATSUMI HONDA, Deceased, by ARLENE S. KAMAKANA,
SPECIAL ADMINISTRATOR OF THE ESTATE OF HELEN SHIZUKO
HONDA, Deceased, Petitioner, Appellant~Appellee
BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT
SYSTEM OF THE STATE OF HAWAT'I, Appellee-Appellant
No. 23625
MOTION FOR RECONSIDERATION
(CIV. NO. 99-3473)
SEPTEMBER 15, 2005
NE :Z Md G1 das Sie
aa
oSUIR RIANA, ROouR, JU. AND CLROULT JUDGE
Det ROSARIO, IN PLACE OF DUFFY, J.y RECUSED)
xo LevINSon, 9-7 DISSENTING, WI3H WHOM HOON, C-J-y JOINS)
Appellee-Appellant Board of Trustees of the Employees’
Retirenent System of the State of Hawai'i (the ERS or ERS Board)
filed a notion for reconsideration (the motion) of this court's
une 17, 2008 published opinion (the opinion), which (1) vacated
the July 28, 2000 final judgment of the circuit court of the
iret circuit (the court) and (2) remanded the case to the court
with instructions to remand the case to the ERS to hold further
proceedings. Honda vy, Bd, of Trs, of the Employees’ Ret, Sys,
No. 23625, slip op. at 2-2, (Haw. une 17, 2005).
In the motion, the ERS Board argues that this court has
violated the separation of powers doctrine by (1) “cloaking the
***FOR PUBLICATION*#*
ERS with the jurisdiction to decide contract and tort clains,”
(2) “waiving the State's sovereign inmunity for those clains,”
and (3) “vesting the court with the legislative function of
deciding a new set of fiduciary duties for ERS.” Tt requests
that this court “reconsider (the] opinion and decide this appeal
fon the argunents presented in the parties’ briefs.” In the
e the
alternative, the ERS Board asks that this court vacat
opinion and allow the parties to brief this court regarding the
mattere decided in the opinion and the question of whether the
Helen Honda
untimely passing of Petitioner /Appellant-Appelle
(tielen) has rendered some or all of the issues presented in this
appeal moot."
on August 15, 2005, this court filed an order directing
Helen to respond to the motion for reconsideration. on
September 2, 2005, Helen filed a memorandum in opposition to the
motion, arguing that (1) the opinion does not require ERS to
adjudicate tort and contract claims, (2) the opinion does not
waive sovereign immunity for tort and contract claims, and
(3) ERS and its trustees have a fiduciary duty to its menbers.
Inasmuch as the opinion did not “overlook” or “misapprehend” the
matters raised by the ERS, the motion for reconsideration is
* deten died on May 30, 2003. On August 25, 2005, Arlene 8.
Kanakana (Kanakana), Special Administrator of the Estate of Helen Shizuko
Honda, wes substitutea as the proper party Appellee pursuant to Hawai't aules
Of Appellate Procedure (WRAP) Rule 43{e) (2005). For purposes of this
opinion, however, the reference to Helen made 1a the originel opinion i=
retained
‘**#F0R PUBLICATION*#*
denied.”
In its first point, the ERS Board argues that the ERS
does not have jurisdiction to decide remedies under Hawai't
Revised Statutes (HRS) chapters 661 and 662? because the circuit
courts have original jurisdiction to hear contract and tort
claims against the State and the ERS can only interpret and apply
HRS chapter 88. These arguments are based upon a misreading of
the opinion.
a.
‘The ERS Board states that the opinion “appears to vest
ERS with the jurisdiction to decide and provide remedies for
clains for rescission of contract and the torts of breach of
fiduciary duty and negligent misrepresentation.” (Emphasis
added.) The opinion, however, does not direct the ERS to “decide
civil, judicial remedies,” but remands the case to the ERS Board
for it to hold further proceedings in light of its fiduciary duty
to retirees. Slip op. at 3, 24. The theories of unilateral
mistake and negligent misrepresentation were discussed in the
opinion to illustrate the basis upon which the ERS‘s failure to
provide Katsumi Honda (Katsumi) “with clear, understandable
information concerning retirement benefits” might be premised.
+ RAP 40(b) (2008) provides that a motion for reconsideration
wehail state with particularity the pointe of law or fact that the moving
party contends the court hes overlooked of sisapprehended, together with a
Brief argument on the points raised.”
> as chapter 661 governs actions by and against the state and HRS
chapter 662 fe the State Tort Liability Act.
3
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Slip op. at 1, Indeed, as the opinion states, the court’s
judgment was vacated and the case xenanded “pursuant to HRS § 91-
14(g)."" Slip op. at 24. Accordingly, this court did not
Yoverlook” or “misapprehend” the ERS Board’s jurisdiction to
decide and provide remedies.
8.
The ERS Board further argues that “{nJo statute
authorizes ERS to allow an
yet unasserted estate or personal
representative of a beneficiary to change an ERS member's
retirement option” and that “[oJn remand, ERS is therefore left
in the position of either exceeding its statutory authority or
violating this court's order.” First, it should be noted that
none of the parties notified this court of Helen’s death prior to
the filing of the opinion. Hence, this court could not have
“misapprehended” a fact that was never presented to it.
«ns § 91-1619) (1993) provides:
(a) Upon review of the record the
decision of the agency or remand the case with instructions
for further proceedings; of it may reverse or modify the
Gecision and’ order if che substantial rights of the
petitioners may have been prejudiced because the
Rauinistrative findings, conclusions, decisions, or orders
sourt_ may affirm the
(2) In violation of the constitutional of statutory
provisions? oF
(2) Th excess of the statutory authority or
jusisdiction of the agency: OF
(3) Made spon onlawfol procedure) or
(a) Affected by other error of Law; or
{5} Clearly erfoneous in view of the reliable,
Probative, and substantial evidence on the whole
Fecord; or
(6) Arbitrary, oF capricious, of characterized by
bose of discretion or clearly unwarranted
exercise of discretion
4
‘**#FOR PUBLICATION***
se
According to a declaration attached to the motion,
Deputy Attorney General Diane S. Kishimoto spoke with Helen’s
attorney, Reid Nakamura, on June 21, 2005, at which time he
informed her that Helen “had passed away approximately two years
ago.” Kishimoto declares that to “the best of (her] knowledge,
this [vas] the first time (the ERS Board had] learned of
elen’s} death.”
Pursuant to HRAP Rule 43(a),
LiJf a party dies after the notice of appeal is f1led, or
hile the proceeding is otherwise pending in a Hawai'i
Gppeliate court, 2
a i a a
Heettiete'tierk: “the notion of a party shall be served upon
2p raiterentative in accordance with the provisions of Rule
25 "Ip the deceased party has no representative, any party
‘uai_suasast the death oa the record, and proceedings shell
(Emphases added.) In the criminal context, HRAP Rule 43 has been
construed to afford the appellate court with two options in the
absence of 4 motion for substitution as follows:
‘The appellate court may, in its discretion, allow for
fubstitution of a proper party-defendant. ‘Absent such =
fotion, the appellate court nay, in its discretion, either
Ti) dississ the appeal. as most, vacate the original judgment
SF conviction, and dismiss all relsted criminal proceedings,
Gr, in che alternative, (2) enter such other order as the
Gppellate court deens appropriate pursuant to MRAP Rule
Gar
State v. Makaila, 79 Hawai'i 40, 45, 897 P.2d 967, 972 (1995).
Because @ “death” of a party had been “suggest [ed], on
August 11, 2005, this court ordered (1) Nakamura to confirm
Helen's death by filing a death certificate in this court and
(2) for either party to move for substitution of a proper party
Appellee pursuant to HRAP Rule 43(a) or advise this court that no
3
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motion would be filed. On August 25, 2008, following the probate
court's appointment of Kanakana, Helen's daughter, as Special
Administrator of the Estate of Helen Shizuko Honda, Nakamura
filed a motion to substitute Kanakana as the proper party
Appellee. This court granted the motion for substitution on
ntative of the
August 25, 2005. See supra note 1. A repr
beneficiary has thus been identified. If in any way relevant,
the event of Helen’s death has becone part of a case which has
been remanded. Therefore, this matter was not “misapprehended”
or “overlooked.”
Second, it should be emphasized that because “the ERS
made no findings with respect to the specific nature and
sufficiency of information provided to Katsumi,” slip op. at 24,
the opinion remands the case to the ERS to hold further
proceedings “in the framework of the entire record and in view of
the ERS’s fiduciary duty to retirees,” id, The opinion confirms
the ERS’s fiduciary duty, but the application of that duty has
been remanded to the board in light of the principles established
in the opinion. As discussed infra, the remand is consistent
with HRS chapter 88 and, hence, does not compel the ERS Board to
“exceed[] its statutory authority.”
m,
Relatedly, in its second argument, the ERS Board
maintains that the courts cannot waive the State’s sovereign
immunity because, (1) pursuant to Chun v. Bd, of Trustees of the
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Employees’ Retirement Svs., 106 Hawai'i 416, 106 P.3d 339 (2005),
the legislature must expressly waive immunity, (2) pursuant to
Pele Defense Fund v. Paty, 73 Haw. 578, 609-10, 837 P.2d 1247,
1266 (1992), “relief that is tantamount to an award of damages
for a past violation of law, even though styled as something
else, is barred by sovereign immunity(,]" and (3) pursuant to
Edelman v. Jordan, 415 U.S. 651 (1974), equitable restitution,
Like other forms of danages, is barred by the state’s sovereign
immunity.
As in the first argument, however, these points all
stem from the ERS Board’s presumption that the opinion determined
contract and tort remedies. It should also be noted that the ERS
did not raise the issues of sovereign immunity and “retrospective
injunctive relief and damages” until after the opinion was filed.
Accepting its view of the essential nature of the case, for the
sake of argument, the ERS had multiple opportunities to raise the
defense.
Although Helen’s request for “a declaratory order . . «
allowing [her] to select new mode of retirement for Retirant
Katsumi Honda, deceased, to be effective retroactively to
April 1, 1994[,]" and the court's order implicated what the ERS
now characterizes as sovereign immunity concerns in reference to
“retroactively,” “benefits,” and “pay,” the ERS did not raise
sovereign immunity arguments at the agency hearing, in its agency
decision, or on the appeal to the court. The court’s July 6,
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2000 findings of fact and order reversing the decision of the ERS
Board and awarding relief to Katsumi, by Helen stated, inter
alia, as follows:
2. The relief requested by Petitioner/Appellant in
ste pening Brief... shall hereby be granted. The
specific grant of relief by this Order ig the authorization
for Mrs, Helen 8, Honda to revise Mr, Katsumi Honda,
Geceased’s election of a node of distribution of retirement
Gilowance to one of the three statutorily authorized methods
Seserined in [HRS] §88-263.. Such revision of the election
Of a nethod of distribution shall be made within €0 days
from the date of entry of this Order and shall apply
Eetroactively to the date of lr. Kateuni Honda's retirement,
peti 1, 1994." Benefits shall be calculated in the
following manner:
1)" From Appl 1. 199 to the date of Me. Kateumi
Honda's death, the Denefits payable shall be based upen Mr.
Honda’s entitioment as a Clase c retirant’
2 ua , [plenefies
shali be payed [sic] to Mrs. Honda as the beneficiary under
the method Sf distribution selected until - -- Mra. Honda's
Eights to such enefits shall terminate as provided under
uch election.
‘The payment of such benefits shell be made forthwith.
(Some emphases in original and some added.) Even after the court
ordered the ERS to allow Helen to select @ new retirement option
and to pay her benefits, the ERS did not raise the issue of
sovereign immunity in its briefs before this court.
Now, in its motion for reconsideration, the ERS Board
refers to “retrospective relief” and a “retrospective danages
award[.]” Previously, the ERS Board had obviously believed the
doctrine of sovereign immunity did not apply. The failure to
raise this issue in the history of this appeal renders the ERS
Board's sovereign immunity argunents on a motion for
reconsideration unconvincing. This court could not have
“overlooked” or “misapplied” what was not raised.
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eee
‘The ERS Board additionally argues that “even if the
contract and tort claims could be brought against the State --
which under Chapter 91 they could not -- the court has overlooked
the two-year statutes of Limitation[,]” HRS 5§ 661-5" and 662-4.°
Helen, however, filed an administrative appeal pursuant to HRS
§ 91-14, ‘The ERS did not refer to any statute of limitations
during the appeal. Again, the opinion could not have
“overlooked” or “misapprehended” what was not raised.
qn.
Finally, the ERS Board asserts that “(aJbsent statutory
authority, this court lacks jurisdiction to assign a new trust
duty to ERS.” Its subsidiary points are that (1) “[n]o statute
in Chapter 88 provides that ERS owes a duty, let elone a
fiduciary duty, to individual menbers to provide individual.
notice and counseling, particularly absent a request for
information” (emphases in original), (2) “[o]ther state courts
5 uRS § 661-5 (1993) provides:
661-5 Limitations on action. Every claim against
the stste, cognizable under this chapter, shall be forever
barred unless the action ¢ commenced within two years after
the cleim first accrues? provided that the clains of persons
Under legal disability shall not be barred if the action 1s
Comsenced within one year after the disability has ceased.
(Baphasis added.)
«ars § 662-¢ (1993) states:
662-4 statute of Limitations. A tort claim against
tthe state shall be forever barred uniess action is begun
Within two years after the claim accrues, except in the case
Of a medical tort claim when the limitation of action
provisions set forth in section 6577.3 shall apply,
18 added.)
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have held that because retirement systems are creatures of
statute, a court has no authority to impose new requirements on
them[,]” (3) “ERS’s duty to responsibly manage state funds may
extend a general duty to ERS members as a whole to ensure that
the State will have sufficient money to meet its statutory
obligations{,]” (4) “(elven under [the Employees Retirement and
Income Security Act (ERISA)], the majority of courts . . . have
not imposed upon an ERISA plan fiduciary the duty individually to
notify participants and/or beneficiaries of the specific impact
of the general terms of the plan upon them” (internal quotation
marks and citation omitted), (5) “[a]bsent a request from the
member, it is also impossible for ERS to anticipate each of the
approximately 99,000 members’ needs before they retirel,}” and
(6) the legislature “grants the [BRS] Board discretion regarding
how to administer state ERS funds, but it vests the authority
regarding what benefits will be paid out, to whom, and when, with
itself.”
Before addressing these subsidiary points, it must be
observed that the opinion cites to an opinion of the Attorney
General's office itself that had previously determined that “the
tuustees of the [ERS] are, in both common and legal
contemplation, trustees . . . entrusted with the duty and
responsibility of administering the System for the benefit of the
members of the System.” Slip op. at 20 (citing Op. Att'y Gen.
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SSSSSSsseseseses
No. 64-25, at 8 (1964)) (emphases added). Trust duties, then,
are hardly “new” to the ERS Board.
a.
In point (1), the ERS Board maintains that “no statute
requires or implies that ERS must send out information to menbers
or counsel them on their retirement options.” But to the
contrary, HRS § 88-22 (1993), the statute establishing the ERS,
provides that the. retirement system “shall have the powers and
privileges of a corporation.” (Emphasis added.) It is axiomatic
that a corporation's directors and officers assune fiduciary
duties. Ses Chambrella v, Rutledge, 69 Haw. 271, 274, 740 P.2d
1008, 1010 (1987) (finding that plaintiffs-union members should
not be precluded from equitable relief in an action against
defendant nonprofit corporation for breach of fiduciary duties);
Hawaiian Int'l fin. v. Pablo, 53 Haw. 149, 153, 488 P.2d 1172,
1275 (1971) ("It is a well established rule both in Hawaii and in
a majority of the [s]tates that the relation of directors to the
corporations they represent is a fiduciary one.”); Luv. Kwong,
39 Haw. 532, 538 (1952) (“The relation of directors to
corporations is a fiduciary one and the well-established rule
both in Hawaii and in a majority of the [s]tates is that when
fiduciaries deal with themselves relative to their trust property
the burden is upon such fiduciaries to establish the fairness of
the transaction.”); Bolte v, Bellina, 15 Haw. 151, 183-54 (1903)
("Directors stand towards the corporation which they represent
***FOR PUBLICATION*+*
and act for in the relation of trustees to a cestui que trust.
+ + They must act in good faith and for the interests of the
stockholders whom they represent.”); Lussier v, Mau-Van Dev,
Ince, 4 Haw. App. 359, 361, 667 P.24 804, 819 (1983) ("A
corporate director or officer occupies a fiduciary capacity.”
(Internal quotation marks, brackets, and citations omitted.)).
See also HRS $§ 414-221, -233 (1993) (delineating standards of
conduct for corporate directors and officers).
Additionally, HRS § 88-23, which creates the ERS Board,
vests the “general administration and the responsibility for the
proper operation of the retirement system and for making
effective the provisions of this part and part VII(’] of this
chapter . . . in a board of trustees{.]" (Emphasis added.)
Trustees, by definition, are imbued with fiduciary duties. See
Black's Law Dictionary 1514 (6th ed. 1990) (defining “trustee” as
“{o]ne who holds legal title to property ‘in trust’ for the
benefit of another person (beneficiary) and who must carry out
specific duties with regard to the property. The trustee oves a
fiduciary duty to the beneficiary.” (Citing Reinecke v. Smith,
289 U.S. 172 (1933)))? see also Miller v, First Hawaiian Bank, 61
Haw. 346, 350, 604 P.2d 39, 42 (1979) (*[T]he trustee(] is under
a duty to communicate to the beneficiary material facts affecting
the interest of the beneficiary which he knows the beneficiary
does not know and which the beneficiary needs to know for his
+ part VIE governs retirement for clase © public officers and
employees, HRS chapter 88 pt. VII
2
‘***FOR PUBLICATION*#*
ee
protection in dealing with a third person with respect to his
interest.” (Quoting Reatatement (Second) of Trusts § 173, cmt. d
(1989). (Block format omitted.)).
‘The ERS Board contends that the “only trust duties
expressly imposed by Chapter 88 are those of a prudent financial
manager{,]" noting that the “two statutes that expressly
reference ‘trust’ duties are HRS $§ 88-110 and 88-127 (1993).”"
‘The ERS Board directs this court's attention to. the language in
HRS § 88-110 that “[t]he board of trustees shall be trustees of
the several funds of the system and may invest and reinvest such
funds as authorized by this part and by law from time to time
provided.” It also emphasizes the language in HRS § 88-127 as
follows:
talny and all suns contributed of paid from whatever source
to the systen for the funds crested by this part,
2/the ayetes including any and all. inte
Sarnings of the sane,
is
and
Pottthe nenbers of the aystam and shall not be subject to
appropriation for any other purpose whatsoever.
(Emphases in original.) The ERS Board, however, ignores the
phrase following the language it emphasizes, which states, “and
for the members of the aystem.” Thus, it would appear that the
ERS Board owes a “trust” duty to not just the “systen” as a
whole, as the ERS Board contends in point (3), but to the
“pembers of the system” as well.*
* The ERS Board states that ste “primary duty is to properly invest
and manage” the "é9 billion” in state funds." The existence of “prudent
Hinancial anager” duties, however, would not preclude the existence of other
fiduciary duties: Indeed, the Attoeney General has previously advised the ERS
Bosrd shat it is subject to “comuon-law restrictions” in aaaition to statutory
(cntinvet..)
B
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In a footnote, the ERS Board dismisses HRS § 88-27
(1993), which pertains to the “[oJath of trustees{,]” as not
“expressly refer(ring) to ‘trust’ duties." HRS § @8-27 provides,
in pertinent part, as follows:
Bach trustee shall, within ten days after the trustee’ s
appointment or election, take en oath of office that, so far
St devolves upon the trustee, the trustee will giligsntiy
‘EEgateng, and chat the trustee sili not knowingly violate or
SEilingly permit to be violated any of the provisions of law
applicable to the systes.
(Emphasis added.) Reading HRS $§ 88-27 and 88-127 in part
materia, see HRS § 1-16 (1993) ("Las in pari materia, or upon
the same subject matter, shall be construed with reference to
each other."), the ERS Board is charged with the duty to
“diligently and honestly administer,” HRS § 88-27 (emphasis
continued)
qualifications. See Op. Att'y Gen. No. 64-25, at 2. sae also Anantiad vs
90 Hawai'd 152, 166-7, 977 P-2d 260, 174-75 (1993) (concluding that
Stns’ 86-151 (2995) ous upon the Director of Labor the fiduciary
obligation of administering and maintaining the special compensation fund”
even though the statute does not expressly refer to fiduciary duties)
The ERS Board cites te
72 A.D.24 698. (W.Y. App. Oly. 1979], to support ite
Etgunent that ite ‘primary duty 12 to properly invest and manage [public
Pension] funds.” in liste, the retires argued that the comptrciler, "ae
Erustes of the retizenent’ fund, ha(d) an affirmative duty to make the members
auare of the benefits and insure that they receive the best possible
entitienent.”” Ld, at 900. “The New York appellate court responded that *[a)ny
Such duty. . . ie tempered by the bounds of reasonsbleness and the primary
duty of preservation of the fund.” Id, Tt held that “(to require the
(retirenent slysten to inform every applicant of the effect of their
retirenent date as indicated on their application in the absence of any
Fequest therefor before accepting said application would impose an
Unreasonable burden on the [s]ysten.”
The facts in Katsuni's case differ from the facts in Nutt. The
opinien requires the ERS to “provige retirees sutticigas iniamutien to mak
n dnfamed deciaian in electing retizenent option.” Slip op: at 20
(quoting Ricks + Mfegcuri Local Gov't iaplovess’ fet, Gye.r Sb S.w.24 585,
382 (No. Ct. ADP. 1996)) (emphases added). Given that “(t]he choice of
Fetirencnt options is a pivotal decision that may substantially affect the
retires's quality of Living for the remainder of his or her life and the
Provision for loved ones upon the retiree’ death(,1” ad. at 23, this duty
Mould not “impose an unreasonable burden,” Mutt, 72 A.-24 at 900, on the ERS.
“4
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eee
added), “all funds. . . held in trust . . . for the exclusive use
and benefit of the system and for the menbers of the system,” HRS
§ 88-127 (emphasis added). Diligence denotes “(vligilant
activity; attentiveness(.J” Black's Lav Dictionary at 457,
Hence, vigilance and attentiveness in administering the funds for
the benefit of ERS members would encompass the duty to provide
such members with understandable information of the retirement
options. The ERS Board’s contention that “(nJo statute in
chapter @8 provides that ERS owes a duty,” thus, is incorrect and
this court did not “misapprehend” or “overlook” the duties
accorded the ERS Board through its enabling statutes in chapter
88.
B.
Next, the ERS Board cites to case law from other
jurisdictions to support its point (2) that “because retirement
systems are creatures of statute, a court has no authority to
impose new requirements on them.” However, the fact that the ERS
Board was created by statute does not insulate it from common law
duties. The same Attorney General opinion cited in the opinion,
discussed supra, determined that the ERS Board may be subject to
conmon law trust duties, including the duty of loyalty. Op.
Att'y Gen. No. 64-25, at 2, The Attorney General advised that
the statutes governing the ERS Board
fe mainly declaratory of the common lav, and where the
Statute prescribes certain qualifications of
disinterestesnens,, it is noe necessarily inconsistent with,
fand may be held
EL EhE commensiaurrale saccoraingiy it is necessary €0
1s
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consider whether there are any applicable common-law
restrictions
Id. (emphasis added). Cf, Maxa v. John Alden Life ins, co., 972
F.2d 980, 985 (8th Cir. 1992) (*(A]s fiduciaries, the duties of
plan administrators [under ERISA] go beyond those specified in
the statute, and include duties derived from common law trust
principles.”). Therefore, the ERS Board’s contention that
“pecause retirement systems are creatures of statute, a court has
no authority to impose new requirements on them” and that
“whether the . . . ERS has a fiduciary duty to individual members
to ensure that they make ‘informed decisions’ is a non
justiciable question” are unavailing.’ This court did not
“impose” a “new” duty.
The ERS Board cites to Lee v. Board of Administration
ofthe Public Euplovees’ Retirenent Svstem, 181 Cal. Rptr. 754,
760 (Cal. Ct. App. 1982), for the proposition that “courts must
take a statute as they find it” and that if “its operation
results in inequity or hardship in some cases, the remedy
therefor{] lies with the legislative body.” Although the court
in Lee denied the plaintiff retirement benefits under the
applicable statute, id., the court entertained the plaintif#’s
+ Accordingly, the ERS Board's reliance on City of New York ve
Schgeck, 62 N.E.26 104 iN.¥, Ce. App. 1545), for the proposition that “[i}n
equity, a court has no power to direct how a statutory trustee performs its
Guties,"4a misplaced. "Although the Schogck court helé that “such equitable
Principles have no application in case... . where the pension fund is
Created by statute and the powers and cities of the board of trustees of the
fund aze defined ond regulated by statute(,]" id. at 108, it determined thet =
court could direct the board of trustees to perform its duties under the
Statues, id. ar 103, Ultimately, the Schosck court ordered the board to pay
the employes from the pension fund. Lae
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alternative argument that the retirement system was “nonetheless
estopped from denying her claim” due to “misleading” retirement
Literature, id. at 761 (emphasis added). Lee, then, did not
altogether preclude judicial relief.
Moreover, Lee implicitly held that retirement
information provided to the employee must be “clear.” Id, at
762. ‘The Lee court determined there was no estoppel because the
“retirement pamphlets distributed by [the retirement system madel
clear that the information provided therein [was] general and
simplified and [did] not purport to be the definitive statement
of the retirement law.” Id, (emphasis added). In contrast here,
the ERS’s retirement application form and pamphlet “did not
contain unambiguous and understandable terms” but, rather,
“contained insufficient and seemingly inconsistent information.”
Slip op. at 21.
‘The ERS Board also relies on Kinzy v. Oklahoma, 20 P.3d
818, 822 (Okla. 2001), for the rule that a public retirement
system “whose authority is deraigned solely from statute
. + [y] is without power to act in a manner contrary to what
the law prescribes[,]” which would be a “vain and useless act.”
‘The Oklahoma Supreme Court had to determine the time when the
plaintiffs-firefighters’ claim to recover pension benefits
accrued so as to initiate the running of the applicable
Limitations period. Id, at 620. The trial court had “ruled that
because of the existence of a trust-based relationship” between
7
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the plaintiffs-firefighters and the retirement system, the
firefighters’ pension board had to “first unequivocably repudiate
the trust . . . to intiate the applicable (statute of)
Limitations period.” Id. at 622.
‘The Oklahoma Supreme Court reversed, holding that the
the
plaintiffs-firefighters’ claim was time-barred becau:
Oklahoma statutes “reveal{ed) no instance where the (bJoard [was]
empowered to or given authority to abrogate its statutorily-
prescribed fiduciary relationship with the pension funds.” Id.
According to the Oklahoma Supreme Court, “were [the bloard to do
80, it would be acting outside its statutory mandate(.)” Id.
Here, the opinion does not direct the ERS Board to act “outside
its statutory mandate[,]” id., but to conduct further proceedings
“in view of the ERS’s fiduciary duty to retirees[,]" slip op. at
24, which, as stated supra and in the opinion, slip op. at 20, is
in consonance with chapter 68. See e.g., HRS § 68-23.
‘The ERS Board further notes that “(iJn Washington, the
state retirement system is not even considered a trust, but a
state fund that is solely a creature of statute[,]” citing
Retired Public Emplovees Council of Washington v. Charles, 62
P.3d 470 (Wash. 2003). In Charles, organizations representing
retired public employees and teachers petitioned for a writ of
mandamus against the director of the Washington Department of
Retirement Systems. Id, at 474-75. The Washington Supreme Court
held that the director “may not be characterized as a trustee of
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OO
(the) funds” because the “funds [were] not truste[.]” Id. at
481. That is not the case here. As discussed supra, the ERS
Board, by express statutory mandate, is a “board of truste;
HRS § 88-23, and, therefore, the fact that another state does not
regard its retirement system director as a trustee is
inconsequential.
Finally, the ERS Board relies on Emplovees’ Retirement
System Board of Control v, Givhan, No. 2030075 (Ala. Civ. App.
oct. 8, 2004) (per curiam). The Board’s reliance is misplaced.
In Givhan, there was no allegation that the retirement forms used
by the Enployee Retirement System Board of Control of Alabama
were confusing or misleading. It was simply argued that the
retiree lacked capacity to make a proper election due to illness.
Also, Givhan does not make mention of any fiduciary obligations
of Board members or plan administrators. Again, the fact that
another state does not choose to impose a fiduciary obligation is
unpersuasive.
c.
In point (4), the ERS Board maintains that the
legislature could enact legislation similar to the provision in
ERISA that provides a cause of action for “breach of fiduciary
duty,” 29 U.S.C. § 1109," and that
" 29.v.8.c. § 1109(a) provides, in relevant part, that
[alay person who is a fiduciary with respect to a plan who
Breaches any of the responsibilities, obligations, or duties
Imposed upon fiduciaries by this subchapter shall’ be
personatly iiabie to make good to such plan any losses to
(contin...
19
‘*#*P0R PUBLICATION*#*
[elven under ERISA, “the majority of courte . . . have not
Ipposed upon an ERISA plan fidvclery the asty individually
to notify participants and/or beneficiaries of the specific
Tepact of the general terms of the plan upon them.” Maxa vs.
John Alden Lite Ing. coy, 972 F.24 980 (Bth Cir. 1992). See
also Stahl v, Tony's Butlding materiale, Inc., 875 F.2d 1408
{etn Cir. 1983)
In Maza, under the circumstances in that case, the
Eighth Circuit did
not construe ERISA or the regulations under it to require
Chat the appellee had a duty individually to warn, upon
their sixtyetizeh birthdays, each and all of the menbers of
the plane which st insured that their Benefits would be
Fedueed according to the plan's coordination of benefits
provision unless they enrolled in Medicare.
972 F.2d at 986. It was held that the appellee did not have the
duty to provide individualized notice, the rationale being that
fiduciaries should be able to rely upon the detailed and
lnifors guidance ERISA provides with regard to disclosure
fequirenents rather than bearing the practically impossible
borden of anticipating, and comprehensively addressing, the
individualized concerns of thousands of employe
Sepecisily without notice of those concerns.
Id, (emphasis in original). ‘The instant case, however, does not
concern individualized notification. The duty confirmed in the
opinion is the duty to provide clear and understandable
information on a standard application form and pamphlet that was
distributed to all retirees, not just Katsumi. Hence, Maxa is
not on point.
It should be noted that ERISA is a federal statutory
scheme involving statutes and regulations, the complexities of
(continued)
‘the plan resulting from each such breach, and to restore to
uch plan any profite of such fiduciary which have been made
through use of ascete of the plan by the fiduciary, and
Shall be subject to such other equitable or remedial relief
asthe court may Geem appropriate, including removal of such
fiauesary.
20
***FOR PUBLICATION*#*
eee
which, even the ERS Board acknowledges, “can be confusing.” For
instance, ERISA requires that a “summary plan description of any
employee benefit plan . . . be furnished to participants and
beneficiaries.” 29 U.S.C. § 1022. These summary plans must
comport with numerous standards under ERISA and its accompanying
regulations, Sea Stahl, 875 F.2d at 1406. Plans offered
through the ERS, however, are exenpt from ERISA as “governmental
plans.” see 29 U.S.C. § 1003(b) (2) ("The provisions of this
subchapter shall not apply to any employee benefit plan if. .
such plan is a governmental plan{.)" (Emphasis added.));!! 29
U.S.C. § 1321(b) (2) (excluding from ERISA coverage, plans that
are “established and maintained for its employees by the
Government of the United States, by the government of any State
or political subdivision thereof, or by any agency or
instrumentality of any of the foregoing” (emphasis added)); see.
also Hightower v, Texas Hosp. Ass'n, 65 F.3d 443, 447 (Sth Cir.
1995) (*[ERISA] was enacted to encourage the establishment and
growth of piivate pension plans and to protect the participants
in those plans.” (Emphasis added.)).
Nonetheless, the recognition of a duty to provide clear
information to ERS menbers is consistent with the mandates of
ERISA. In Stahl, the Ninth Circuit observed that a “summary plan
description ‘must not have the effect of misleading, misinforming
% A Sgovernmental plan” 1s defined as “a plan established or
naintained for ite employees by the Covernnent of the United States, by the
Governacst of any State or political subdivision thereof, or by any’ agency or
Ineteunentality of any of the foregoing.” 29 U.S.C. § 1002(32)-
2
FOR PUBLICATION*+*
or failing to inform participants and beneficiaries."" 875
F.2d at 1406 (quoting 29 Code of Federal Regulations § 2520.102-
2(b) (1987)) (brackets omitted). Similarly, in Swanson ws. UA.
Local 13 Pension Plan, 779 F. Supp. 690, 700 (W.D.N.¥. 1991), the
court held that “ERISA. . . impose(s] a duty upon fiduciaries to
fact in the interest of plan participants” and that “(t)hat duty
includes correctly and adequately informing participants about
their rights and obligations under the plan.” Assuming,
arquende, that ERISA cases provide an appropriate analogy for
Katoumi’s case, the objectively “misleading” nature of the ERS’s
retirement application and pamphlet would not constitute “correct
and adequate” information on Katsumi’s “rights and obligation:
Therefore, the opinion is not in conflict with the parallel
rationale in ERISA and this court did not “overlook” or
‘misapprehend” this matter.
b.
In point (5), the ERS Board contends that without a
request froma member, it is impossible for the ERS to meet the
needs of its approximately 93,000 menbers and that “without
notice of [Katsumi‘s] need for more information, or of his
"Stab does not support the ERS Board's position that no duty w
owed in Katsumivs case.” The summery plan at issue there was held to conta
Sperfectly understandable terms.” 875 F.28 at 1408. fone of the
court's atated bases for denying the plaintiff-retizee's claim that more
‘explanation was needed in th that a “summary plan
description does no good ual land digest it~" Id. at
1403. The plan already exceeded fifty pages. Id, Thus, requiring further
‘explanation would have contravened the federal Fegulations, which require that,
summary plans be “concise so that eaployees will yesd then-” [dA similar
page burden was not implicated in Kateumi's case. The focus of the opinion
Mas the objectively confusing and misleading language end format in the
Gpplication and pamphlet provided to
FOR PUBLICATION®**
particular circumstances, ERS could not have known that the
unambiguous choice he marked on his retirement option form was
misleading to him, when it had been satisfactorily chosen by
countless others.” The ERS Board’s contention that the ERS could
not have known that Katsumi did not understand the effect of his
election is unpersuasive inasmuch as the application form and
pamphlet it distributed to him and to all ERS members were
apparently misleading. Additionally, the statement that
“countless others” had chosen the “normal” option to their
satisfaction, assuming its relevance, is not substantiated with a
citation to the record and, therefore, amounts to conjecture.”
B.
In its final subsidiary argument, point (6), the ERS
Board argues that “the legislature has decided to make Hawaii's a
legislatively circumscribed benefits plan . . . [, meaning that
the legislature] grants the Board the discretion regarding how to
administer state ERS funds, but it vests the authority regarding
what benefits will be paid out, to whom, and when, with itself.”
Assuming, arguendo, that the ERS meets the definition of a
“defined benefit plan” as the ERS Board contends, the opinion
Finding no. 18 states as follow
Upon review of the ERS forme and documents completed
and submitted by Katauai Honda, it does not appear that he
had trouble understanding the forms or following
Instructions. There is no credible evidence in the record
that Kateum! Honda did not understand,
“th dts motion the ERS Board states that a
(contin.
B
‘+#*P0R PUBLICATION**
does not determine “what benefits will be paid out.” It
addresses the manner in which the ERS fulfills its obligation to
“administer” the ERS funds.
‘The duty of providing clear and accurate information in
the retirement application and pamphlet does not alter “what
benefits will be paid out” under the statutes, but goes to the
ERS's adninistration of such benefits. The ERS Board, in its
motion, acknowledges that “the ERS's primary duty to non-
contributory menbers is to ensure that the state funds dedicated
for their retirenents are properly managed and distributed.”
(Emphasis added.) The dissemination of misleading retirement
Literature frustrates the ERS meaber’s statutorily prescribed
right to “elect” a retirenent allowance option, HRS $ 88-263
(1993), and implicates the ERS’s management and distribution of
the funds.
The ERS Board argues that Katsumi “was not short-
changed” by pointing out that “he was a non-contributory Class
member . . . [who] did not contribute his own monies tovard his
retirement, though he did contribute his service to the state.”
It would seem self-evident that the distinction between
.omtinued)
(defined benefit plan entitles the menbers to a predetermined
Sistribution upon retirement and to an actuarially sound
plan to ensure thet the plen is adequately funded to mest
those distribution requirenents. it does not entitle then
to any use of the contributions other than to ensure the
above entitlenents are met
(Quoting Koster v. City of Davenport, Tova, 183 F.3d 762, 767 (Sth cir.
1999).
4
‘***FOR PUBLICATION***
———_— SSSSSSSSSSSSSSsSSSSSs
contributory and non-contributory members is irrelevant to the
question of whether the ERS fulfilled its obligation to properly
manage and administer the state funds inasmuch as the ERS’s duty
applies to all members.
‘Therefore, upon consideration of the subsidiary points,
the opinion did not “overlook” or “misapprehend” law or fact in
confirming the ERS’s “duty to provide its members . . . with
clear, understandable information concerning retirement
benefits.” Slip op. at 1.
wv.
Alternatively, the ERS Board requests that the opinion
be vacated and that the parties be given the opportunity to
“fully brief: (1) the issues raised in this court’s opinion; and
(2) the issue of whether [Helen's] death has rendered some or all
of the issues on appeal moot.” As to point (1), the opinion
already notes that “Helen did not raise” the erroneous findings
of fact before the court. Slip op. at 2, This matter, then, as
the ERS Board concedes, has “already been fully considered by
this court” and need not be reconsidered. Noreover, the
opinion expressly provides the statutory authority for remanding
‘the case to the court, and in turn, to the ERS. It states that
the majority is “exercis[ing] . . . (this court's] general
superintendence of the trial courts . . . and [its] power to make
% th the motion, the ERS Boerd states that it “does not raise the
matters addressed in the court's dissenting opinion because (the ERS Board),
While it fully agrees with che dissent, assunes thet those matters have
Biready been fully considered by this court
25
‘*#8POR PUBLICATION*#*
such orders and mandates as necessary for the promotion of
justice[.]” Slip op. at 2. Based upon the foregoing discussion
of the ERS Board’s arguments, further briefing on these matters
is unnecessary. The mootness issue has been addr
fed, as stated
supra.
v,
Accordingly, the ERS Board’s motion for reconsideration
is denied.
Russell Suzuki and Adina
Kobayashi Cunningham,
Deputy Attorneys General,
fe abpelioe:Agpelione,
on the motion. 47
eid A. Nakamura and Al dd ud Peraice
Rare f. Leong (oliver, Lau,
Tawhny Ogawa’ Nakanarals
for Appellant-Appellee,
in opposition.
Vsoctes Outre
26
|
1a858a60-3f5a-4b74-887c-382e42a34bf8 | In re Kuchler, Inc. v. State, Department of Transportation | hawaii | Hawaii Supreme Court |
*** NOTFOR PUBLICATION ***
No, 26897
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
In the Matter of
PHILLIP G. KUCHLER, INC., Petitioner-Appellant-Appellant,
. gle
STATE OF HAWAI'I, DEPARTMENT OF TRANSPORTATION
Respondent-Appel lee-Appel lee
aaws
APPEAL FROM THE FIRST.ciRcUIT court “|
(CIV. NO. 04-1-0872)
00:6 Wy sz 100 st
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.;
with Acoba, J., Concurring Separately)
Petitione:
jppellant-appellant Phillip G. Kuchler, Inc.
(Kuchier) appeals from the first cireust court’s September 17,
2004 final judgment! affirming the March 18, 2004 Findings of
Fact, Conclusions of Law and Decision of the Hearings officer,
Office of Administrative Hearings, Department of Commerce and
Consumer Affairs, State of Hawai'i (Hearings Officer) affirming
the July 9, 2003 denial by respondent-appellee-appellee State of
Hawai'i, Department of Transportation (DOT) of Kuchler’s April 4,
2003 bid protest of Dot's decision to cancel its solicitation of
contract bids for the managenent of real property known as
Kepalama Military Reservation (HMR), Project No. HAR-PM-03-1. on
appeal, Kuchler contends that the circuit court erred when it
‘The Honorable Sebrina S. Mexent
vresided over this matter.
*** NOT FOR PUBLICATION ***
affirmed the Hearings Officer’s: (1) eréoneous “conclusion that
DOT had unfettered discretion to cancel the solicitation unless
Kuchler demonstrated favoritism, corruption or bad faith on Dot's
part"; (2) clearly erroneous finding that “the solicitation was
validly cancelled on the ground that it ‘did not provide for
consideration of a factor of significance to the agency’ (iste, @
one-month cap or limit on leasing commissions)"; (3) erroneous
conclusion that DOT provided adequate notice of its true reasons
for cancelling the solicitation; and (4) clearly erroneous
finding that “DOT's actions in cancelling the solicitation were
not tainted by favoritism and bad faith.”
upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advocated and the issues raised, we hol
(2) An agency does not abuse its discretion where it
complies with applicable law. See, e.a., West Alabama
ity of ition 2
Adnin., 302 F. Supp.2d 672, 682 (S.D. Tex. 2004)
(holding that where an agency complies with applicable
law, its decision “cannot be classified as arbitrary,
capricious, or an abuse of discretion”). In the
instant case, DOT complied with applicable law in
cancelling the bid solicitation because the
cancellation was permissible under Hawai'i
*** NOTFOR PUBLICATION ***
Administrative Rules (HAR) implementing provisions of
the Hawai"i Procurement Code governing cancellation of
bid solicitations. See Hawai'i Revised Statutes (HRS)
§ 1030-308 (Supp. 1997) ("An invitation for bids, a
request for proposals, or other solicitation may be
canceled, or any or all bids or proposals may be
rejected in whole or in part as may be specified in the
solicitation, when it is in the best interests of the
governmental body which issued the invitation, request,
or other solicitation, in accordance with rules adopted
by the policy board.”); HAR § 3-122-96(a) (2) (c) (1997)
(a solicitation may be cancelled if it “did not provide
for consideration of all factors of significance to the
agency”
(2) The Hearings Officer's finding that the solicitation
did not provide for consideration of a factor of
significance to DOT -- a one-month cap on commission
fees -- is not clearly erroneous because it is
supported by substantial evidence, including the
credible testimony of DOT’s contracting officer. See
Lsslic v. Estate of Tavares, 91 Hawai'i 394, 399, 964
P.2d 1220, 1225 (1999) (appellate court’s scope of
review under the clearly erroneous standard is limited
to (1) determining whether there is substantial
3
8
“
*** NOT FOR PUBLICATION ***
evidence in the record to support the ruling; and (2)
if there is such evidence, determining whether the
record nevertheless leaves the court with the definite
‘and firm conviction that a mistake has been made); In
reDoe, 95 Hawai'i 183, 196-7, 20 P.3d 616, 629-30
(2001) (testimony of one credible witness may
constitute substantial evidence) ;
ons for
DOT provided adequate notice of its x
cancelling the solicitation because it provided Kuchler
notice of the actual circumstances and facts leading to
the cancellation of the solicitation. See HRS § 103D-
308 ("reasons [for cancellation of a solicitation]
shall be made part of the contract file”); HAR § 3-122-
96(b) (2) (requiring a “brief explanation of the
reason(s) for cancellation”);
The Hearings Officer's finding that DOT did not act in
bad faith or with favoritism is not clearly erroneous
inasmuch as there is sufficient evidence in the record,
including the credible testimony of DOT's contracting
officer, to support the finding that DOT cancelled the
solicitation in good faith (i.e., because it was
concerned that without @ one-month cap on commission
fees it risked paying more in commissions than it would
*** NOT FOR PUBLICATION ***
recoup in rent). See Leslie, 91 Hawai'i at 399, 984
P.2d at 1225. Therefore,
IT 18 HEREBY ORDERED that the circuit court's
September 17, 2004 final judgment is affirmed.
DATED: Honolulu, Hawai'i, October 25, 2005.
LOR
Neantees Crore cure
Gene Duceys br
I concur in the result.
ree
on the briefs:
Dennis W. King’
and John Winnicki
(of Deeley King & Pang),
for petitioner-appellant-
appellant Phillip G.
Kuchler, Inc.
Deirdre Marie-tha
and Dorothy D. Sellers
Deputy Attorneys General,
for respondent-appellee
appellee State of Hawai't,
Department of Transportation
|
9dff1feb-cdd6-4e82-9269-11737e10774d | In re Civil Complaints and Summons Filed by Lee | hawaii | Hawaii Supreme Court | no. #7496
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
IN THE MATTER OF CIVIL COMPLAINTS AND SUMMONS,
FILED BY ROBIN M.S. LEE 2,
Bon a
ROBIN M.S. LEE, Petitioner o °
ve. joe
3
a
et al., Respondents
MYLES S. BREINER,
ROBIN M.S. LEE, Petitioner
Respondents
SHERATON WAIKIKI, et al.,
ROBIN M.S. LEE, Petitioner
JUDGE SABRINA McKENNA, Respondent
ROBIN M.S. LEE, Petitioner
DONALD TRUMP, Respondent
aaa
ROBIN M.S. LEE, Petitioner
BANK OF AMERICA, et al., Respondents
ROBIN M.S. LEE, Petitioner
BANK OF HAWAII, et al., Respondents
ROBIN M.S. LEE, Petitioner
T-MOBILE, et al., Respondents
ROBIN M.S. LEE, Petitioner
UNITED AIRLINES, et al., Respondents
ROBIN M.S. LEE, Petitioner
ALA MOANA HOTEL, et al., Respondents
ROBIN M.S. LEE, Petitioner
vs.
E*TRADE SECURITIES, Respondent
ROBIN M.S. LEE, Petitioner
vs.
HILTON, Respondent
ROBIN M.S. LEE, Petitioner
OFFICE MAX, et al., Respondents
ROBIN M.S. LEE, Petitioner
NORDSTROM CORP., et al., Respondents
ROBIN M.S. LEE, Petitioner
UNICHECK CORP., Respondent
ROBIN M.S. LEE, Petitioner
OFFICE DEPOT, et al., Respondents
ROBIN M.S. LEE, Petitioner
vs.
HAWAII PRINCE HOTEL, et al., Respondents
ORIGINAL PROCEEDING
(crv. NO. 04-1-1263)
‘ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Robin M.S. Lee’s civil
complaints and summons, the papers in support, and the records
3
and files herein, the appellate court does not have jurisdiction
to consider complaints for damages in the first instance and
cannot issue default judgments. Therefore,
IT IS HEREBY ORDERED that the complaints and summons
are dismissed.
IT 18 FURTHER ORDERED that the clerk’s office shall
accept no further complaints, summons, or requests for default
judgment for filing by L
unless otherwise ord
d by the court.
DATED: Honolulu, Hawai'i, August 23, 2005.
Robin M.S. Lee
petitioner pro se
|
7df34273-d58c-400d-991a-764f4382e338 | BG Incorporated v. P.F. Three Partners | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION *** ia g
wo. 27308 2 8
IN THE SUPREME COURT OF THE STATE OF HAWATES|S |
3
BG INCORPORATED, a Hawai'i corporation,
Lienor-Appellee,
vs.
PF, THREE PARTNERS, @ Hawai'i limited partnership,
Respondent Appellant,
and
DOES 1-100, Respondents
APPEAL FROM THE SECOND CIRCUIT COURT
(eb. NO. 04-1-0018(3))
(oy: Moon, C.J.) Levineons Hakayanas Aeaba, and Duffy, 9.)
Upon review of the record, it appears that the appeal
of the May 25, 2005 order denying the motion to compel
arbitration is moot inasmuch as the application for a mechanic's
Lien was decided by the circuit court and the appeal of the May
25, 2005 order will afford appellant a remedy in name, but not an
adequate remedy in fact. See Assn. of Owners of Kukui Plaza v.
‘Swinerton & Walbera, 68 Haw. 98, 107, 705 P.24 28, 35 (1985);
Koolau Radiclioay, Inc, v. Queen's Medical Center, 73 Haw. 433,
444, 024 P.2d 1294, 1300 (1992).
It further appears that the appeal of the May 25, 2005,
order granting the application for a mechanic's lien is prenature
inasmuch as the order was not reduced to a separate judgment, as
aaa
*** NOT FOR PUBLICATION ***
required by HRCP 58. See Jenkins v. Cades Schutte Fleming &
Weight, 76 Hawai'l 115, 869 P.2d 1334 (1994) (an order that
resolves claims in a circuit court civil case is not appealable
unless the order is reduced to a separate judgment pursuant to
RCP 58). Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed.
Dated: Honolulu, Hawai'i, August 25, 2005.
Gorm
Sire Rlilore—
Petts Create res
aoe
Kone, Buty re
|
1aab9ec4-519b-44f5-8cb0-e625cb13995d | State v. De Guair | hawaii | Hawaii Supreme Court | LAW LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
= 000
S36 WY 2290
aad
STATE OF HAWAT'T, Plaintiff-Appellee,
WALTER WAYNE DE GUAIR, Defendant-Appellant.
(Nos. 25390 & 25625 (Cr. No. 92-509)
WALTER WAYNE DE GUAIR, Petitioner-Appellant,
STATE OF HAWAT'I, Respondent~Appellee.
(NO. 26560 (3.P.P. No. 98-003)
eee
No. 25390
APPEALS FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(Cr. No. 92-509 and §.P.P, No. 98-003)
AUGUST 22, 2008
ORDER OF CORRECTION
(By: Levinson, J.)
pon review of the opinion filed in this case on August
xe, 2005, s¢ appears that the renainder of the finel sentence on
page 19 of the opinion was not printed: therefore,
Xf 15 HEREBY ORDERED that the opinion 9 corrected by
adding, after *. . « De Goair now challenges the cizeuit court's
fentencel,]" the following to the botton of page 19: “and asks
that this court reduce it by ten years.” The clerk of the court
is cirectes to incorporate the foregoing change in the original
opinion and take ell necessary steps to notify the publishing
aeencies of this change.
Sic Lviam
Associate Justice
|
723b11bd-eddf-4826-b87b-ae3f7fc2719c | In re Doe, born 11/22/2002. 108 Haw. 144 | hawaii | Hawaii Supreme Court | *#*FOR PUBLICATION***
IN THE SUPREME COURT OF THE STATE OF HAWAT'L,
000:
1 ony souz
In the Interest of
JANE DOE, Born on November 22, 2002, a Minor
(No. 26721; FC-S NO. 02-08654)
In the Interest of
JANE DOE, Born on November 22, 1998, a Minor
(WO, 26722; FC-S NO, 02-08475)
no. 26721
APPEALS FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(EC-S NOS. 02-08654; 02-08475)
AUGUST 10, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
Mother-Appellant (Mother)' appeals from the May 4, 2004
order of the family court of the first circuit (the court)
awarding permanent custody in favor of the Department of Human
Services-Appellee (DHS) and the June 29, 2004 orders denying
Mother's May 21, 2004 motion for reconsideration. We hold the
* For purposes of preserving confidentiality, Mother-Appellant is
referred to az “Mather,” and the gubject children, born on Novenber 22, 1998
and Novenber 22, 2002, are referred to a8 “Jane 1” and “Jane 2,” respectively
aay
***FOR PUBLICATION***
in remanded because
orders must be vacated and the matters h
(2) the court abused its discretion in reappointing the guardian
ad litem without @ hearing pursuant to Hawai'i Revised statutes
(RS) § $87-34(d) (1993) and (2) Mother was deprived of her
parental rights without a fair hearing.
rt
The facts as set forth by the parties follow. On oF
about August 6, 2002, DHS received a report alleging physical
neglect, threatened neglect, and lack of supervision of Jane Doe,
born on November 22, 1998 (Jane 1), by Mother. Jane 1 and her
Mother had been residing at the Institute of Human Services since
August 1, 2002. Based on its investigation, DHS believed there
existed an inminent threat of physical neglect to Jane 1 and lack
of supervision of Jane 1 by Mother.
on August 26, 2002, Jane 1 was taken into police
protective custody, released to DHS, and placed in a DHS foster
home. Upon placement, Jane 1 appeared to be in good health.
Jane 1 did not appear to be afraid of Mother. DHS filed a
Petition for Temporary Foster Custody of Jane 1 on August 23,
2002. The court accepted jurisdiction over Jane 1 on
Septenber 3, 2002, pursuant to HRS $$ 571-11(9)? and 587-117
+ gs § $71-21(9) states that “the [family] court shall have
exclusive original jurisdiction in proceedings . . . (fJor the protection of
‘Shy child under chapter 567.”
> ns § $87-12 states as follows:
Pursuant to [section] 571-1119), the (family) court
shell have exclusive original jurisdiction sna child
(continued...)
***FOR PUBLICATION®#*
eee
(1993).
eat the initial hearing on
Mother did not apps
September 3, 2002, was defaulted, and a bench warrant was issued
for her arrest.‘ All parties were ordered to appear at a
sing on
review/return on Motion for Permanent Custody h
Novenber 1, 2002. Mother did not appear at the review hearing.
The court continued foster custody. All parties were ordered to
appear at a review hearing on February 21, 2003.
mu.
on November 20, 2002, DHS filed a Notion for Order
Awarding Permanent Custody and Establishing a Permanent Flan
(Motion for Permanent Custody) for Jane 1. The hearing on the
Motion for Permanent Custody was set for February 21, 2003, at
the sane time as the review hearing.
on November 22, 2002, Mother gave birth to a baby girl
(sane 2). On November 25, 2002, Jane 2 was taken into police
protective custody, released to DHS, and placed in a DHS foster
home. On November 29, 2002, 2 Petition for Temporary Foster
2(.- continued)
protective proceeding concerning any child who was or is
Found within the State at the time the facts and
Circumstances occurred, are discovered, or are reported to
the [Departeent of Human Services), which facts and
Elvcunstances constitute the basis for the finding that the
‘physical or psychological health or
‘gkeinent harm, has been harned, or is
or omissions of the
Snild is a ehild who
elfare is subject t
Subject to threatened harm by the acti
child's family,
+ the Honorable John C. Bryant, Jr. presided.
* The Honorable Marilyn Carlenith presided at the hearings on
Novenber 1, 2002, January 24, Febrosry 21, June 13, September 30, and Decenber
30,2003, and January 22, May 4, and June 29, 2004,
3
‘***FOR PUBLICATION***
Custody of Jane 2 was filed.
On December 3, 2002, a hearing on temporary foster
custody of Jane 2 was held.* Mother was present and was served
1d to
in open court with the petition and exhibits. Mother agr
jurisdiction, foster custody, and the service plan dated
November 27, 2002. The court took jurisdiction, ordered foster
custody and the service plan dated Novenber 27, 2002. ALL
parties were ordered to appear at a review hearing on February
21, 2003.
on January 17, 2003, Mother filed a Motion for
Imnediate Review to discuss why Mother’s visitation with Jane 2
had been stopped.
on January 22, 2003, a “full psychological evaluation”
of Mother was conducted by clinical psychologist Dr. Steven Choy
(Dr. Choy) of the Kapiolani Child Protection Center.
on January 24, 2003, @ hearing was held on Mother’s
Motion for Inmediate Review. The court ordered that Mother would
have visits with Jane 2 twice a week. Mother’s motion was
withdrawn.
on February 21, 2003, a review hearing was held. The
case for Jane 1 was set for a contested permanent custody trial
on July 21, 2003. A pretrial hearing was set for June 13, 2003.
A review hearing for the case of Jane 2 was also set for June 13,
2003.
* The Honorable Paul T. Murakant presided
4
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EE
on May 28, 2003, DHS filed a Motion to Continue Trial
for the purpose of ordering a service plan in Jane 1's case. The
hearing on the motion was set for June 23, 2003.
on May 29, 2003, DHS filed a Motion for Order Awarding
Permanent Custody and Establishing a Permanent Plan (Motion for
Permanent Custody) for Jane 2. ‘The hearing on the Motion for
Permanent Custody for Jane 2 was set for June 13, 2003, at the
sane time as the hearing on the Motion to Continue Trial in Jane
1's case.
am.
on June 13, 2003, a hearing was held on the Motion to
Continue Trial in Jane 1/s case and the Motion for Permanent
custody in Jane 2/s case. The deputy attorney general (DAG)
representing the DHS raised “the issue of whether Mother needs 2
guardian [ad litem]." Mother's counsel made an oral motion to
withdraw as counsel. The court denied the motion. The court
ordered that a guardian ad litem be appointed, over Mother's
counsel's objection. The court consolidated the two cases for
trial and set aside the trial scheduled for July 21, 2003 in Jane
1's case. The trial was set for October 16, 2003. A pretrial
hearing was set for October 3, 2003.
‘on August 1, 2003, Mother filed a Motion for Immediate
Review to discuss visitation and placement of the children. A
hearing on the motion was set for August 8, 2003.
on August 6, 2003, the Order Appointing Guardian ad
‘***FOR PUBLICATION*#*
Litem for Mother effective August 4, 2003, was filed. on
August 8, 2003, a h
ring was held on Mother's Motion for
Inmediate Review.’ The court denied without prejudice Mother’s
request or demand for visitation with Jane 1 pending the trial.
‘The court partially granted Mother!s motion as to visitation with
Jane 2 “and condition[ed] any supervised visits as recommended by
DHS, [the guardian ad litem,] and Dr. [Gregory] Yuen
[(Or. Yuen)].” On September 16, 2003, Mother filed a Motion for
Inmediate Review to discuss visitation with the children. The
motion was set for September 30, 2003.
on September 30, 2003, 2 hearing was held on Mother's
Motion for Inmediate Review. By agreement, the pretrial hearing
set for October 3, 2003 was advanced to September 30, 2003.
Mother’s Motion for Inmediate Review was denied.
Ww.
on October 16, 2003, a contested Permanent Plan hearing
was to be held.* Mother’s counsel made an oral motion to
withdraw as counsel. Mother stated that counsel could serve as
her attorney for that day. The court denied Mother's counsel's
oral motion to withdraw.
On October 16, 2003, the court also ordered DHS to
clarify whether Mother needed a guardian ad litem “by obtain(ing]
a report from Mother's psychiatrist” or “arrang[ing] a
* The Honorable Lillian Ramirez-Uy presided over the hearings on
‘August @ and Decenber 16, 2003,
+ The Honorable Michael Broderick presided.
6
‘4**FOR PUBLICATION***
ee
psychological evaluation of Mother” “on the issue of whether
Nother needs a [guardian ad litem, i.e.) whether she has the
capacity to understand the proceedings and to meaningfully assist
her counsel.” The court indicated that “[i]f a (guardian ad
Litem] is necessary for Mother, [the guardian's] appointment
shall continues Mother's counsel shall consult with Mother's
(guardian ad litem] and take direction from Mother's [guardian ad
Litem); the (cJourt will give further clarifications.” Lastly,
the court continued the trial to December 30, 2003.
on December 16, 2003, 2 pretrial hearing was held. The
DAG reported to the court that “the previous court has actually
prenaturely appointed @ guardian ad litem for Mother.” The DAG
further reported to the court that clinical psychologist Dr. choy
completed an evaluation and assessment of Mother and determined
that she did not need 2 guardian ad litem, Mother's guardian ad
Litem requested to be excused in light of Dr. Choy’s
determination that Mother did not need a guardian ad litem.
vother's counsel informed the court that at every hearing Mother
believes her children are going to be returned to her that day.
Mother's counsel advised the court that he was not sure if Mother
could adequately assist him in trial. The parties “stipulate(d)
to [Dr. Choy’s] verbal report to DHS that Mother does not need a
{guardian ad Litem)” and the guardian ad litem was discharged.
However, on December 18, 2003, Nother purportedly
appeared at the courthouse, demanded to see a judge to get her
***FOR PUBLICATION:
children back, and refused to leave for several hours.”
‘Thereafter, on December 19, 2003, apparently without notice or a
hearing, the court reappointed the guardian ad litem. Also, on
Decenber 19, 2003, an Order Substituting Counsel for Mother
effective December 18, 2003, was filed.
on December 30, 2003, a contested Permanent Plan
hearing was to be held. Mother did not appear. The court
defaulted Mother and granted the Motion for Permanent Custody.
Following the entry of default, Mother's substitute counsel
requested a continuance because of Mother’s history of coming to
hearings but sometimes being late. ‘The court denied the motion
for a continuanct
Additionally, on December 30, 2003, the court received
into evidence Dr. Choy’s written report dated October 28, 2003.
This report concluded that Mother “is able to understand the
court proceedings and the service plan” and that “{s]he,
therefore, does not need @ guardian ad litem to make decisions
for her.” The report stated in relevant part as follows:
+ Mother's conduct on December 18, 2003 is only described in
(2) finding number 29 5 rendered by the court, gee text intra st 14, and
(2) the guazdian ad Liten’s Special Report co the Court flied January 21,
2004, "the Special Report described other's actions as follows:
Around 12/19/03 Court Officer S. Holden informed this
[guardian ad litem) thet she was being reappointed for
Ulother, who had shown up at Family Court on/about 12/18/03
around ii p.m. and had refused to leave the courthouse until
She was allowed to see a judge. (Mother) renained waiting,
ntil'3:30 pom, and then left.
Aside from this, no testimony or affidavits fron eyewitnesses concerning
Nother’s behavior appears in the record on appeal.
44*FOR PUBLICATION*#*
ss
(Emphases
THother] wae referred for # paychological ne to
Getermine her current mental status in order to assess her
Gbliity to understand the court proceeding and the service
plan. f art eernes other’
it Teaical oval nas n OUsgeZ008,
ERxditttse givens possible diagnosis of Schizophreni:
Peranold Typey Depression, 10S, and Mild Mental Retardation
fer paychiatric care hae been inconsistent and there are
Concerts about her ability to care for her special needs
ehilaren.
fhother! was referred for 2 psychological assessment
primarily to determine the need for a guardian ed litem and
Po Geterdine her current meneal status. Although she has
hod a long history of subatance abuse and suspected mental
Mines, she cusfencly did not have any acute syaptons of &
peychosis, “This dees not mean that she doesn’t have any
Rental iliness a2 the psychotic symptoms could be under
Control with medication and/or she may be in remission,
ShetThowover, is net acutely peychotic at this time and abe
a rs ad the service
pian “then therefore, docs not need a quardian ad Titen to
ie =
‘pcotminoarion
Feeeneether] will need to be consistently followed by a
poychiatelat that will provide consistent feedback to
Besta order to ensure that she is obtaining the
hecessary treatment
but the
sda te be writeen in a very simple and
for her to understand the
Fenifications of her decisions.
added.)
Based on this report and Dr. Choy’s finding that Mother
could make decisions and did not need a guardian ad litem, the
guardian ad litem placed an objection on the record to being
reappointed as Nother’s guardian ad litem. The court noted at
this hearing that Dr. Choy’s report “does not reflect him
observing
[Mother] in a very highly emotionally charged
situation, which it was when [Mother] was here that day[.]" The
court also stated that Mother “was here for a very long time [on
December 18, 2003], making a really difficult situation for the
***POR PUBLICATION*#*
court officer and some of the bailiffs. . . . And, so, that
swayed the court to make that unusual reappointment.”
v.
On January 2, 2004, Mother filed a Motion for Inmediate
Review to set aside Mother’s default and schedule a permanent
custody trial on the merits and a Motion for Reconsideration of
the granting of the Motions for Permanent Custody and approving
the foster family and children's relocation from the State of
Hawai'i.
on January 22, 2004, a hearing was held on Mother’ s
Motion for Inmediate Review and Mother's Motion for
Reconsideration. Mother's substitute counsel objected to the
receipt of Mother's guardian ad litem’s first report. ‘The report
was received into evidence over objection. The court granted the
motions. Trial was set for June 3, 2004. Mother’s guardian ad
Litem orally moved to withdraw. Mother's substitute counsel
advised the court that if Mother’s guardian ad litem is taken off
the case, he “would have to pursue withdrawal at that point.”
The court denied the guardian ad liten’s motion to withdraw.
vr.
on May 4, 2004, a pretrial hearing was held. Prior to
the hearing there was a prehearing conference conducted without
Mother. Mother’s guardian ad litem disclosed to the court that
Mother had bought plane tickets, Mother’s counsel objected to
Mother's guardian ad litem disclosing privileged and confidential
10
***FOR PUBLICATION #*
Ee
Information, The court noted the objection and permitted
Mother’s guardian ad litem to proceed. Mother's counsel
requested a running objection, which the court granted.
Mother's guardian ad litem advised the court that she
had a statement by Dr. Yuen, Mother’s treating psychiatrist, and
that she did not agree with Dr. Yuen’s statement. After reading
tthe record reflect that T am
the letter the court stated,
looking at the letter from [Dr. Yuen] dated April 29th .
which indicates stability if she is medicated.” Mother's
guardian ad litem disclosed to the court that Mother “had
confided to me that she doesn’t need medication and, therefore,
is acting accordingly.”
Mother's counsel advised the court that should Mother's
guardian ad liten “leave this case, I would have no other
alternative but to proceed on my client's wishes.” Mothers
counsel stated, “{O}bviously my client wants a trials but
[Mother's guardian ad litem) will control whether there will be @
trial, and I guess that’s where we’re -- we're factored in.”
After the prehearing conference, Mother was brought
into the courtroom. Mother asked if she could have custody of
her children because she was asking for leave to go back to
california, Mother informed the court that she had plane
tickets. Mother complained of discrimination by her counsel and
her guardian ad litem.
Following a pause in proceedings during which Mother’s
un
FOR PUBLICATION***
counsel and her guardian ad litem conferred, Mother’s guardian ad
Litem advised the court, “Lbelieve at this point it is in
Mother's] best interest to have the Motion for Permanent Custody
granted, Your Honor, with all the ramifications flowing
therefrom, so that [Mother] can get on with her life.” (Emphasis
added.) Mother's counsel agreed with the recommendation stating
in relevant part that
[ene guardian ad 1item) and I have labored on the subject of
the proceeding, the strategies, the plans... - while there,
‘auardian ad Litenl has nade a recommendation, es well as the
Fecommendation of the Das, the chilaren’s [guardian ad
ifcem)s a
Liem 5 hae, aad t
axe te follow shat. recomendation(.7
(Emphases added.) Mother stated that she was “able to provide a
‘safe home” for her children and “begg(ed]” the court to allow her
to “have a chance with them.” The court, however, found “that
Mother cannot now nor in the reasonably foreseeable future, even
Mother
with the Service Plan, provide a safe family hone
stated, “I can’t move. My leg hurts, I can’t mover I can’t
move.” An ambulance was called.
The court reconvened in another courtroom. Mothe:
guardian ad Litem waived Mother’s presence. The court granted
the Motion for Permanent Custody, found that the Permanent Plan
dated May 19, 2003 was in the best interest of the children, and
ordered said Permanent Plan. The court discharged Mother’ s
guardian ad litem and her counsel. The court ordered that
“Mother stated, “i'm able to provide 2 safe hone for ay kids.
could T have a chance with then? . - . I'm begging you please.”
12
‘+**POR PUBLICATION***
oe
appellate counsel be appointed for Mother.
‘The court noted that Mother strongly objected to the
granting of the Motion for Permanent Custody. The court set
aside the June 3, 2004 trial date. Mother’s counsel advised the
court that “we were prepared to fully go to trial except that the
developments that led up to today, and even beyond today -- T
mean, prior to today, and we had no choice, Your Honor.”
vin.
on May 21, 2004, Mother's Motion for Reconsideration
was filed. on June 24, 2004, Mother's counsel's Notion to
Withdraw as Counsel was filed. On June 29, 2004, a hearing was
held on Mother’s motions. The Motion to Withdraw was granted.
Following a recess, substitute counsel argued the Motion for
Reconsideration. The Motion for Reconsideration was denied. On
June 30, 2004, an Order Substituting Counsel for Mother effective
June 29, 2004 was filed.
on July 26, 2004, Mother's Notice of Appeal was filed.
on Septenber 1, 2004, Findings of Fact and Conclusions of Law
were filed. As related to the appointment of the guardian ad
Litem, the court entered the following relevant finding:
5. The court first appointed . . . Mother's [guardian
ad lites] «effective August 4, 2003, "At the hearing on
Becenber 16, 2003...» the court granted [the guardian ad
[feem's) oral notion to withdraw as Mother's [guardian ad
Litem). Qn-December 18,"2003, the court resopointed . |
Mother‘s [auardian ad Litem).
25, at the consolidated hearing in both cases on
gone 15, 2003, the court denied the o¥al motion of Mother's
Gounsel, Tae Chin Kin, to withdraw as other's counsel. The
3 Mother's (guardian ad
appointed effective August 4, 2003,
13
‘***POR PUBLICATION***
26. At the October 16, 2003 scheduled consolidated
trial on'bis" “Notion for Permanent Custody” in both ca
the court denied tir. Kin's oral motion to withdraw a
Mother's counsel lat the request of Mother). ‘The court
further orgares DHS to obtain 2 report from Mother’ =
treating paychsatrist to determine whether Mother needed a
[guardian 2d Litem), i.e., wether Mother had the capacity
tO understand the proceedings and to meaningfully assist her
Counsel, and that Lf Mother's psychiatrist was not available
fo obtain an opinion from Mother's psychiatrist, then DAS
es to arrange a psychological evaluation on this issue,
‘The court further ofdered that if the opinion of Mother's
peychlatrist or the psychologist conducting the
Psychological evaluation was that Nother did not need 2
[guardian ad Listen], and then Mother's (guardian ad Litem)
would be discharged.
3 . ‘
cithieaw ae tether tne
Seat tenor tron Oc Sevan ote. habs las Cela BY
Siso dented Mz. Kin's oral notion to withdraw a2 Mother's
Counsel but ruled that Mother may make an oral motion to
proceea pro se st trial.
Zen the court discharged Mr. Kim as Mother’ s counsel
in both Gases and appointed Byron K.H. Hu as Mother's
counsel in both cases, effective Decenber 18, 2003.
29."
ith $
‘(auardian ad Litem! after learning that on Dacesber it,
2003, iicther cane to tne family Court waiting room afound
TOs aun, denanded to see a iudae to cet her chiidran
eck aculanee tate ne fer-an answer, did not sespond to a
‘Sount officers cencated explanations, and finally left the
‘Sourthouse around $30 oo.
531 "A consolidated pretrial sn both cages was held on
Mav 4, 200¢" “[n'the sroceséinas, Mother wes observed to
thipyherselt co the {oor and lav imnobile when told_she
Sosid-not cet her children back, aos trial on permanent
Sustody in both cases had been set for June 2004, Mother’ s
(guardian ad Litem], who had consistently requested a trial
on the merits regarding the State’s Motion for Permanent
Custody in both children’s cases, stated on the record that
She.ne lonoer felt it uss in [Miother’s best interests 2°
At the pretrial, therefore, Mother's [guardian ad litem)
Stated on the record that it was in Mother's best interests
that DuS"s "Motion for Permanent Custody" in both cases be
granted, and that Mother was not willing and able to provide
S'eafe family hone for the children, even with the
Gssistance of a service plan, now and in (sic] reasonably
foreseeable future ‘The representation of Mother's
(gusrdisn 2d liten| was a stipulation to DMS" "Motion for
Permanent Custody" in both cases. Mother and her counsel
obiected to the position of Mother's guardian ad Litem.
3¢. Based on the Fi
4
***FOR PUBLICATION***
ee, th Te both ued ore
Granting bie” "Hotion. for Permanent custody,”
1 right ‘and the respective fathers of
the children, anarding permanent custody of the Children to
DUS, and establishing the respective permanent plans
Eegarding the Chilaren.
guardian ad litem for Mother
106. The court "
ne dune 13 ine dus -
Eauserns about the effects of Mother's mental health on ber
psn 24
‘id the nature of these child protective proceedings and her
abiLity to assist her counsel (diasareenante with her
‘Sounsel cus ner -sental health and her inability 2
The court
BbstHea her exsatic behavior in the courtroom, which, in
part, was’ the basis for the court’ decision
17. The cot
Peuchoisalcal sesessnent of Mother by Or--Choe-abich Dee
Shey epines that wether understood the proceedings and dig
aed:
$08; Hlowever, Mother's behavior after Dr. Choy" s
Poychological Assessment wee inconsistent with Mother’ s
Teported behavior during Dr. Choy's Psychological
Assessment. Mod a
rr i
unigia she spoke toa iudae, despite being intemed by ber
‘hunssl and the Zentiy court start that ene cous not aces
Bornes: Titan Mother
BE the issues and the tature of these chila protective
Proceedings and to neaningfully assist her counsel
(Emphases added.) The court entered the following pertinent
conclusions:
2. The court may appoint a (guardian ad lites] for a
party (parent) shen the court determines that a party is
Thespable of comprehending the legsl significance of the
insuee or the nature of the child protective proceedings:
ARE § 587-734(e) [ese]
3. Ifa [gUardien ad litem) has been appointed for =
parent, ‘the parent's counsel should look to the parent's
{guardisn ad litem) for decisions on behalf of the client.
Haweii Rules of Professional Conduct, Rule 1.14, coment 3.
‘an Mother's. (guardian ad Liten] had authority to
stipulate to DKS’ "Motion for Permanent Custody.”
-. . Lalekes v, Laupahoshoe Slugarl Cav, 35 Haw.
262, 263-(je8 (1939), rehearing denied, 35 Haw[.1 363
(1940) (.].- « (ia] nots. s applicable . ss The
Hawaii Suprene court. | {dig} not [rule] that’a (guardian
ad lites} for a party canfot enter into an (alc) stipulation
Gaiving the rights of the party, as stated by Mother's
Counsel. ge Leslie w Estate of Tavares,
fevers) St Ge ee
6. The court's independent review of both cases ot
as
***FOR PUBLICATION***
bar constitutes a review of the stipulation of Moth
guardian ad liven) for fairness in accordance with the
above cases.
virt.
Mother raises nunerous points on appeal. In her
argument she maintains inter alia that (1) Mother’s guardian ad
Litem did not have the authority to waive Mother's right to a
trial on the merits and stipulate to the DHS’s Motion for
Permanent Custody, (2) Mother's guardian ad liten’s disclosure of
privileged and confidential information to the court violated the
Hawai's Rules of Professional Conduct and the guardian ad liten’s
fiduciary duty to Mother, (3) Mother’s counsel's agreement with
her guardian ad Liten to waive her right to a trial on the merits
and stipulate to the DS's Motion for Permanent Custody
2, (4) the
constituted ineffective assistance of coun
psychologist who assessed Mother for the DHS determined that
Mother was able to understand the court proceedings and did not
need a guardian ad Litem to make decisions for her, and (5)
Mother's treating psychiatrist reported that she is stable when
she takes her medication and that she could provide a safe home
for her children.
In response to Mother's arguments related to the
guardian ad litem, DHS maintains that “[a] family court has the
authority to appoint a guardian ad litem for an adult under
HRS § $87-34(d). . . [inasmuch as it] permits the court to
4 Rs § 587-381) states as follows
16
*#*FOR PUBLICATION***
ee
appoint a (guardian ad litem) for any ‘party’ who cannot
“2 DHS argues
comprehend the significance of the proceeding
further, that “[dlespite the psychologist’s conclusion” “that
Mother did not need a (guardian ad litem,]” “{t)he court was not
obligated to consult with the psychologist, nor was the
psychologist's report binding” because the psychologist had not
seen Mother in the situations presented at court, and given
Mother's erratic and confused behavior, the court was well within
its discretion to appoint the guardian ad litem. The court
entered an order pursuant to “HRS [SS] 571-8.5{(a)] (8),
2 (., scontinued)
finen the court determines, aft y hearin
court deome to be apnronciata, that a party is incapable of
SSHESSRSREIng the legal significance of the issues or the
Soreie ce the child protective proceedings, She cour may
HRriys provides thet 2 guardian ag litem appointed
SRERHINE his section shall investigate and report to the
persis writing ot six month intervals, or as is. otherwise
Stdered by the court, regarding the current status of the
Sarty's disability, including, but not Limited to, =
Pertnendation as to available treatment, if any, for the
Efsanilicy and 2 recommendation concerning the manner in
Shish the court should proceed in order to best protect the
TheSleses of the party in conjunction with the court's
Agteiminaticn as to the best interests of the child.
(emphases added.)
4: DHS also maintains that “Mother does not separately argue that the
family court should not have appointed @ [guardian ed 1iten] for Mother.”
fam the Itsue of whether # hearing is required pursuant to HRS § $67~
SETS) Ebr the resppeinenent of a gosrdian ad Liten is feirly implicated and
2ALSLGBY Notner’s arguments on appeal that “Mother's guardian ed litem did
sa eee a et nSchority to weive Mother's right to trial on the merits and
Beipelace ts Ous's Motion for Permanent Custody” and “the psychologist that
ascerced Mother ‘Getersined that Mother was able he
(Emphasis 2ace
bags § $71-8.5(a) (8) (Supp. 2004) states in pertinent part that
sdistrict fanily Judges” have the power to “[alppoint guardians ad liter for
“persons who are incompetent (.1"
7
***FOR PUBLICATION***
571-24, 587-34[(d)] or Family Court Rule 152" effective
August 4, 2003.
1K,
First, it ds noted that in its conclusions of law, the
court relied on HRS § 587-34(d) as authority for appointing
Mother's guardian ad litem. Because that statute states that
‘the court “may” appoint a guardian, discretion resided in the
court as to whether to do so or not. See supra note 11. see
Gray v, Admin, Dir, of the Court, 84 Hawai'i 138, 149, 931 P.2d
580, 591 (1997) ("[WJhere the verbs ‘shall’ and ‘may’ are used in
the same statute, especially where they are used in close
juxtaposition, we infer that the legislature realized the
difference in meaning and intended that the verbs used should
carry with them their ordinary meanings."). In reviewing a
M wns § 574-26 (2992) states in pertinent part as follows:
Failure to anaver summons; warrante. .
Tf, after being sunmoned or notified to appear, a
parent fails to do #0; a warrant may be issued for the
Parent's appearance, and the hearing shall not take place
xithout she presence of cne or both of the arents or the
Suadish, or. if none is present, “a quardian ad Lites
‘appointed by the court to protect the interests of the
‘Minot, The court may also appoint a quardian ad Iiten,
whenever this 1s Recessary dor the eeliare-<I-U02 plnsk,
ihether or not a parent of guardian 15 pre
(Emphases added.)
% Family Court Rule 152 (2003) entitled “Presence and Exclusion of
Parties,” states in pertinent part that “{i]f for sone reason found valid by
tthe court no parent can be present, the court may appoint s guardian ad lites
prior to the hearing.”
Ag noted previously, RS § S71-8.5(a) (8) authorizes district
fanily Judges to “[alppoint guardians ag litem for. .- persone who are
Snconpetent(.]" There is no evidence that Nother ic “incompetent” and 08S
does not argue that she is incompetent. The relevance of HRS § 571-24 oF
Fonily Court Rule 152 12 not pointes out by OHS. Rather, appointment is
justified, according to DNS, under HRS § 587-344)
18
***FOR PUBLICATION***
eee
court's exercise of discretion it must be determined whether the
court abused its discretion. See Kavamata Farms, Inc. v. United
Axi Brods., 96 Hawai'i 214, 241, 948 P.2d 1055, 1082 (1997)
(stating that an abuse of discretion occurs when the trial court
exceeds the bounds of reason or disregards rules of principles
of law or practice to the substantial detriment of a party”).
wrhis court reviews the trial court’s findings of
fact under the clearly erroneous standard.” Bremer v. Weeks, 104
Hawal's 43, 51, 85 P.3d 150, 158 (2004) (citing Beneficial
Hawai'i, Inc. v. Kida, 96 Hawai'i 289, 305, 30 P.3d 895, 912
(2001).
oR finding of fact 4s clearly erroneous when, despite
‘evidence to support the finding, the appeliete court is left with
the definite ana firm conviction in reviewing the entire evidence
thet's mistake hae been conaitted. A finding of fact ie elso
ly erro inen the record lacks substantial evidence to
Support the Finding. We have defined substantial evidence as
Eredible evidence which is of sufficient quality and probative
Selue to enable s person of reasonable caution to support «
Conclusion.”
Id. (quoting Beneficial Hawai'i, 96 Hawai'i at 305, 30 P.3d at
911) (internal citations, quotations marks, brackets, and block
quotation format omitted) .
x.
HRS § 587-34(d) requires that the court hold a “hearing
2 the court deems appropriate” before appointing a guardian ad
Litem, In related circumstances, this court has said the
appointment of a guardian ad item “presupposes a finding by the
trial court that the affected party labors under a disability,
making it necessary for another person to represent his or her
19
**#FOR PUBLICATION***
interests in the litigation.” Leslie v. Estate of Tavares, 91
Hawai'i 394, 400, 984 P.2d 1220, 1226 (1999). Hence, “*{t}he
‘ ‘
person under disability. Indeed, courts should appoint guardians
ad litem for parties litigant when reasonably convinced that a
party litigant is not competent, understandinaly and
Antelligently, to comprehend the significance of legal,
ofte
in terms of the best interests of such party litigant./" Id.
(quoting sta jon v. Hamilton, 482 8.8.24 192, 200
(W.Va. 1996) (emphases added)). As a result, “the powers of a
guardian ad litem . . . to act on behalf of a ward are strictly
circumscribed by the court’s own responsibility to ensure that
the interests of the ward are not compromised.” Id, at 400 n.8,
984 P.2d at 1226 n.8.
‘This court has stated further that “the continuing
incompetence of an adult party for whom a [guardian ad litem) has
previously been appointed must be raised before the trial court.”
Id. at 401, 984 P.2d at 1227. “When @ substantial question
exists regarding the mental competency of 2 party, a court must
determine whether the party is or is not competent to proceed
with the action before it.’” Id, (quoting McMahon, 482 S.E.2d at
201).
xr.
Here, a guardian ad litem was appointed for Mother on
20
***FOR PUBLICATION***
gune 13, 2003. At this hearing, the court summarily determined
that a guardian ad litem should be appointed:
[WoTHER’ S COUNSEL]: ~~ 1 would make an oral notion to
withdraw as counsel and have substitute counsel for ay
Client
‘twe count: okay. I'm going to deny your motion,
And you may not — yos may not know, But you have one
of the nost experienced and best people in =~ in this kind
Of case in this cours.
Rp worden? wnat
WE COURT: -- a guandian for Mother would be
fittbinss couse): Me'xe and to obtact ~
‘ae women at!
TRiroch Sco ee Ee Ere, for the
secoea!
“ee COURT: that bjection will be noted. And-L xd
ee,
Eoncerned about her capacity. And, ciearly, she -~ I mean,
She's been in fzont of this {ejourt now long and she’s nad a
very experienced attorney, and she still doesn't understand
hy the children are =~ the State has taken custody of then.
‘TRE MOTHER: No, because -— excuse mes Nou Dos
indevetand. the nosan called when Twas in HIS
isi), They took my kids from se, and they said it was an
G51 lawyer 2- law, and I'-- Lt wasn't, Thad to
(indiscernible) of the girls in the shelter. That's how my
Gaughter = my first daughter got tooken [sic] from me. I
des aot ‘en ne
Gwe MOTHER: Excuse me -- excuse me, Your Honor
Souhen do midds return to ne”
Becduse f canvt have any nore Kids, and this i my
last set, and J “= I’m =~ I-got an spartnent and one
bedroom, “and a .
‘The couNt: Okay: Welly that’s what =~ there wai. be
Taante think there’ anything available till probably
october
mat {9 the first date for a full-day trial?
THE MOTHER! October?
THE CLERK: October 16,
THE MOTHER: Sg 8 iona tine
scone?
me WoTWER: Excuse me, T can’t =~ I can’t get 2 leave
to another state, to my hometown?
Because I'm from New York. I want to leave, because
1m not getting no fair trial here, “I'm saying =~ I'm not
‘TE COURT: There's no law that mekes you stay here.
However, the children are in the jurisdiction.
‘Tie MOTHER: Can I cone back and get ay kids, then?
await a eninet
* xplain.
1 think that there's =~ your guardian can.
2a
‘***FOR PUBLICATION***
ee
Because given the =~ you know, T don't think any explanation
T'nake £2 going to do any good. Apparently any explanation
your attorney made has not done any good, and he 1s
Setrenely —~
‘THE MOTHER: He didn’t explain nothing tome. He -~
ell -T’= goima to a sen"
THE COURT? Otay. You know, there 1s no guarantee,
leven after somebody does all the services, that they can get
their child back because =~ Just because you go doesn't mean
thet you Learn and can use what you go for. So the court,
cen use what I -- 1 can use ~
etl, that’s going te be the subject of
for pre-trial. And state's
‘THE COURT?
witnesses ==
THE MOTHER: Excuse me.
imormeR's counsti): Your Honor, one other question:
In regards to ~- ne 6: tes of
tet ane =
THE MOTHER? (indiscernible). Exeuse ue, I don’t,
(MOTHER'S COUNSEL) hs Mother.
iodeiry artomusy GENERAL): Te would probably be the
sane day as [Jone 2's], the same day, so one day 8 week.
Because prior to this, Mother hed never asked for =~
ub CodRr: okay. I'm not going to order any make-up
visits Tt’ only fof a week time. And apparently Mother
heen’ t requested visite prior to this time.
‘THE MOTHER: Yea, requesting now, i requesting it.
‘HE couRr: ‘anything
THE MOTHER: TIT Get to see her twice
a week, my daughter.
‘THe Court: . .
you back at those dates in
october.
[oepury ATTORNEY GENERAL): Yes, Your Honor.
THE COUR! fan wil for
‘Tae MOTHER: wha dian for?
{worker's CouNSeL]: 'il-explain it to vou
(Emphases added.)
The foregoing colloquy between the court and Mother
denonstrates Mother's understanding of the legal significance of
8 (1) she recognized that the State
the proceedings insofar
22
‘***FOR PUBLICATION***
Oe
continued to have custody of her children; (2) she understood a
trial was to be held at which she had the opportunity to “prove”
she could be “a good mother"; (3) she perceived the trial was
“too far” in the future inasmuch as, at that point, the court had
scheduled an October 3, 2003 trial date; (4) she objected to the
court allowing her child to leave this jurisdictions and (5) she
requested visits with her children following the court’s
statenent that she had not requested visits prior to the June 13,
2003 hearing. In light of this evidence of Mother’s ability “to
understand the legal significance of the issues and the nature of
[the] . . . proceedings,” the court's finding number 106, gee
text at p. 15 supra, is not supported by the record on appeal.
on October 16, 2003, after the appointment of the
querdian ad Litem, the court ordered either a report from
Mother's psychiatrist or a psychological evaluation as to whether
Mother needed @ guardian ad litem. On December 16, 2003, the
court considered the psychologist’s conclusion that Mother did
not need @ guardian ad Litem and said guardian was dismissed.
Thus, the psychologist’s report and findings that Mother “is able
to understand the court proceedings” and “[s]he does not need a
guardian ad litem to make decisions for her” indicate Mother was
competent to proceed without a guardian ad litem.
Mother's apparent behavior on December 18, 2003
seemingly led the court to reappoint the guardian ad litem on
December 19, 2003, as explained in the court’s findings numbers
23
FOR PUBLICATION***
29 and 108. See text at pp. 14-15 supra. Finding nunber 29
states that the court reappointed the guardian ad litem “after
learning” about Mother’s behavior of “demand{ing] to see a
judge," “not tak{ing] no for an answer,” “not respond[ing] to a
court officers repeated explanations,” and leaving the
courthouse “around 3:30 p.m.” after waiting there since “around
10:30 a.m." Finding number 108 reiterates that the court
reappointed the guardian based on Mother's “erratic{)” behavior
of “appear [ing] at the family court” and “refus{al] to leave
; unless she spoke to a judge, despite being informed by her
counsel and the family court staff that she could not see a
judge.”
These findings, however, are clearly erroneous as “the
record lacks substantial evidence” “of sufficient quality and
probative value” “to support [such] finding(s).” Bremer, 104
hawai'i at 51, 65 P.3d at 158. The court (1) did not witness
Mother's behavior but “Learn(ed)” of her behavior, (2) seemingly
relied on hearsay by “a court officer,” “{Nother’s] counsel and
the family court staff,” and (3) evaluated Mother's conduct in
the absence of testimony or affidavits from the court officer,
Mother's counsel or family court staff as eyewitnesses. Indeed,
in contrast to the characterizations in findings 29 and 108, the
only apparent evidence in the record of Mother's behavior on
December 18, 2003, is in the guardian ad litem’s Special Report
which states in relevant part that
{a)round 12/19/03 Court officer 5. Holden informed this
24
‘#**POR PUBLICATION***
ee
[guardian ad Litem) that she was being reappointed for
[tjether, who had shown up st Panily Court on/about 12/18/03
fround ii gra, and had refused to Jeave the courthouse until
She was allowed to see a Juage. Ess 2
(Emphasis added.) The parties do not point to anything else in
the record to support the court’s finding of Mother's “erratic
behavior” on December 18, 2003. See finding no. 108 at p. 18
supra. In any event, the events of December 18, 2003 fail to
establish Mother’s inability to “comprehend the significance of
the legal proceedings and the effect and relationship of such
procedures,” Leslie, 91 Hawai'i at 400, 984 P.2d at 1226, with
respect to her interests. If anything, the record reflects that
Mother was well aware of the significance of the proceedings and
the adverse legal consequences of a motion for permanent custody
to her interests as a parent.
Additionally, Mother’s actions do not necessarily
evidence her misunderstanding of the court proceedings. Rather,
Mother’s apparent December 18, 2003 request to see a judge is
consistent with evidence of her June 13, 2003 expressed desire
that her children be “return[ed)” to her and her frustration with
the length of the proceedings that the trial date was set “too
far along.” See text at pp. 22-23 supra.
xII.
As mentioned before, the “continuing incompetence of an
adult party for whom a [guardian ad litem] has previously been
appointed,” Leslie, 91 Hawai'i at 401, 984 P.2d at 1227, is a
matter to be determined by the trial court. No hearing was held
25
***FOR PUBLICATION*#*
pursuant to HRS § 587-34(d) to determine Mother’s incompetence
although the court reappointed a guardian ad litem on
December 19, 2003. The record does not indicate any notice wa
given to Mother of the court’s intention to reappoint a guardian
fad litem. This lack of notice and failure to conduct a hearing,
therefore, afforded Mother no opportunity to respond to the
court's reasons for reappointment of said guardian.
In light of (1) Mother's understanding of the legal
proceedings and their effect as demonstrated by her statements
during the June 13, 2003 hearing: (2) Dr. Choy’s report
indicating that a guardian ad litem for Mother was unnecessary;
(3) Dr. Yuen’s treating psychiatrist's report that medication
would control any problem; (4) the court’s reappointment of
Mother's guardian ad litem based only on Mother’s purported
erratic behavior on December 18, 2003; (5) the absence of
“substantial evidence,” Bremer, 104 Hawai"i at 43, 85 P.3d at
158, in the record concerning the nature of the December 18, 2003
“incident” and (6) the lack of any indication from the December
18, 2003 incident that Mother did not comprehend the significance
of the proceedings, the court’s decision to reappoint a guardian
without conducting a hearing was contrary to evidence that Mother
did understand the legal significance of the proceedings. Hence,
the court abused its discretion in failing to convene a hearing
pursuant to HRS § 587-34(d).
It should be observed that at the subsequent May 4,
26
FOR PUBLICATION***
ee
2004 pretrial conference and hearing, at which permanent custody
of Mother's children was granted to DHS and her parental rights
were terminated, Mother's statements and conduct also
demonstrated her understanding of the proceedings. Her
statenents there were consistent with Mother's belief at the
gune 13, 2003 hearing that a trial would afford her the
opportunity to “prove” she would be “a good mother” and regain
custody of her children. Mother urged that she would provide a
safe family home, and in response to the guardian ad liten’s,
counsel's, and the court's adverse statements, “beggled]” the
court to give her a “chance” with her children. Mother's counsel
confirmed at the pretrial conference that Mother “want(ed] @
trial.” Mother's counsel also represented to the court on May 4,
2004, that Mother was “prepared to fully go to trial{.]”
XIII.
Second, in the instant case, Mother was also “deprived”
of her “parental rights” “without a fair hearing.” In re Doe
Children, 99 Hawai'i 522, $33, 57 P.3d 447, 458 (2002). This
court has held as follow:
lic affirm, independent of the federal constitution,
ere, sia Tei thi sd
‘Hiedje orosese clause of anticle 1. section sof the
BPS renal lanes cusventeed unger the
Hawai'i constitution would mean litte if patente were
Hae Sn ay or nel children without a fad
Egaring, Indeed, parents have a fundamental Liberty
Interest in the care, custody, and management of their
children and the stste may not deprive a person of his or
her liberty interest
the deprivation. Furthermore, the Suprene Court has said
that parental Fights cannot be Genied without an opportunity
for then to be heard at a peapinaful tine and in a
neaninaiul sanner.
27
***FOR PUBLICATION***
Id (internal quotation marks, citations, and brackets omitted)
(emphasis in original and sone emphases added).
‘The court’s finding number 33 that on May 4, 2004,
Mother “thr[e]w herself on the floor and lay immobile when told
she could not get her children back,” is incomplete and
misleading because it fails to recite what had occurred before
this, As stated previously, on May 4, 2004, the court conducted
a pretrial conference and hearing for the trial set for June 3,
2004, initially in Mother’s absence. At that time the court
apparently read a letter from Mother's treating psychiatrist,
br. Yuen, indicating Mother was stable if “medicated.” Mother's
guardian expressed disagreement with the letter. The guardian
also informed the court that Mother had airline tickets for the
children. Counsel objected to this disclosure. Mother later
informed the court about the airline tickets when she was allowed
into court. Counsel indicated that Mother “wants a trial” but
that Mother's guardian ad litem “will control whether there will
be a trial.”
When Mother was present, the guardian recommended to
the court that the permanent custody motion should be granted
even though trial had been set for June 3, 2004. Counsel agreed
with this recommendation. Although counsel indicated that “there
is the ability to litigate this matter,” he stated the guardian
ad litem was speaking “on the best interest” of Mother and he had
to follow the guardian's recommendation. The guardian ad litem’s
28
‘#**FOR PUBLICATION***
ee
statement to the court that the motion for permanent custody
should be granted and counsel's agreement to that statement was
in clear contravention of Mother's stated desire for a trial and
of the already scheduled trial date in June. Following counsel's
agreenent with the guardian's recommendation, Mother stated she
could provide a safe family home, “begging” the court to give her
‘a chance” with her children. In response the court indicated
that Mother could not provide a safe family home. Only then did
Mother state she could not move and was removed by the ambulance.
After Mother’s removal, the guardian waived Mother's
presence, the court granted the permanent custody motion, and set
aside the June 3, 2004 trial date. Following this, Mother’s
counsel still noted, inter alia, that “we were fully prepared to
go to trial today and . . . prior to today.”
The record does not indicate that (1) Mother had any
notice that there would be no trial concerning her parental
rights, (2) the guardian ad litem notified Mother that she was
going to recommend that the court grant permanent custody to DES,
(3) Mother was advised by her counsel that he would join in the
reconmendation that the court grant DHS’s motion for permanent
custody, (4) Mother was advised of the effect of the guardian's
recommendation by the guardian or by her counsel before the
recommendation was made, (5) Mother was informed of the
consequences of the guardian's waiver of Mother’s presence at the
pretrial hearing and that she concurred, and (6) a disposition
29
FOR PUBLICATION:
regarding her parental rights would be rendered on that very day.
The recommendation by Mother's guardian ad litem and
counsel that the court grant permanent custody to DHS and the
waiver of Mothers presence led to the court’s termination of
Mother's parental rights. This court has said that the trial
“court’s own responsibility to ensure that the interests of the
ward are not compromised” “strictly circumscribe” “the powers of
the guardian.” Leslie, 91 Hawai'i at 400 n.8, 984 P.2d at 1226
n.8, Under these cizcunstances the court failed to meet its
responsibility. In light of these considerations, Mother was
“denied” “an opportunity . . . to be heard at 2 meaningful time
and in a meaningful manner,” In re Doe Children, 99 Hawai'i at
533, 57 P.3d at 458, as to the termination of her parental
rights. Ultimately, without 2 trial concerning these
“substantive liberty interest(s] in the care, custody, and
control of [her] children,” Mother was “deprived of the custody
of [her] children without a fair hearing.” Id.
xIv.
For the foregoing reasons, the court's December 19,
2003 order reappointing Mother’s guardian ad litem is vacated and
a hearing on such reappointment shall be conducted pursuant to
HRS § 587-34(d). Inasmuch as Mother did not receive a fair
hearing, ida, the court’s May 4, 2004 order awarding permanent
custody and its June 29, 2004 orders denying Mothers motion for
reconsideration are also vacated and the case is remanded to the
30
‘***FOR PUBLICATION***
court for further proceedings consistent with this opinion.
on the briefs:
Jeftry R. Buchli for Gg
Hother-Appellant.
Deirdre Narie-tha Bie eW Lave
Sha Dorothy 8. sellers,
Deputy Attorneys General,
State of Hawai'i, for Baan Cee Aer
Department of Human
Services-Appellee.
Grace meen
31
|
b81cee0b-166e-413b-a3bf-02c1f399fe17 | Freddy Nobriga Enterprises, Inc. v. State | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION ***
No, 27358
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
FREDDY NOBRIGA ENTERPRISES, INC. and ALFRED NOBRIGA,
Plaintiffs /Counterclaim-Defendants-Appellants,
vs. uo g
STATE OF HAWAI'I DEPARTMENT OF HAWAIIAN HOME
MICAH KANE and LINDA CHINN,
Defendants /Counterclaimants-Appellees.
ozs
x
:
APPEAL FROM THE THIRD CIRCUIT COURT, HILD§
(crv. NO. 03-1-0217)
&
(ey: Hakayanay J for the court?)
upon review of the statements supporting and contesting
Jurisdiction, appellee's motion to dismiss appeal, the papers in
support and in opposition and the record, it appears that final
judgment has not been entered in Civil No. 03-1-0217. The
March 14, 2005 order granting defendant's motion for a temporary
restraining order and denying plaintiffs’ counter motion for a
preliminary injunction is not a final order innediately
appealabie under the collaterel order or Fargay doctrines. Thus,
we lack jurisdiction. See HRS § 641-1(a). Therefore,
IP 1S HEREBY ORDERED that this appeal ‘a dismissed for
lack of appellate jurisdiction.
DATED: Honclulu, Hawai'i, September 22, 2005.
FOR THE COURT:
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
a3.
|
18e129ac-d372-46a1-b814-e96aa5cf47ef | State v. Dural | hawaii | Hawaii Supreme Court | No, 26265 »
aqaus
IN THE SUPREME COURT OF THE STATE OF HAWAI'T. (3
STATE OF HAWAI'I, Respondent-Plaintiff-Appellee,
ROYNES DURAL, aka Eric Dural and Bull, .
Petitioner-Defendant Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 02-1-2791)
a WING APPL yk WRIT O1 RI
(By: Nakayama, J., for the court")
Petitioner-Defendant-Appellant’s application for writ
of certiorari filed on July 29, 2005, is hereby denied.
DATED: Honolulu, Hawai'i, August 8, 2005.
FOR THE COURT:
Deborah 4. Kim,
Deputy Public befender,
State of Hawai'i,
for petitioner-defendant-
appellant on the writ
considered by:
Moon, C.J.) Levinson, Nakayama, Acoba, and Duffy, JU
|
6262376f-12a8-4169-914e-6897fba7a4c8 | McDonald v. Foote | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 27279
i $00
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
DUNCAN MCDONALD, Plaintif£-Appellee, =
vs. r
RICHARD M. FOOTE, Defendant-Appellant. ©
APPEAL FROM THE DISTRICT COURT OF THE SECOND crRCUIT
(CIV. NO. DC 051-0410)
(ey: Nakayama, Joy for the eourt!)
upon review of the record, it appears that (1) the
Suprene Court Clerk's Office informed Appellant, RICHARD M.
FOOTE, by letter dated July 15, 2005, that the record on appeal
cannot be filed without payment of the filing fee pursuant to
Rule 3(f) of the Hawai'i Rules of Appellate Procedure (HRAP) or
an executed motion to proceed in forma pauperis pursuant to
HRAP Rule 24 and that the matter would be called to the attention
of the court for such action as the court dened proper pursuant
to HRAP Rule 11(a), including dismissal of the appeals and
(2) Appellant failed to pay the filing fee or submit a motion to
proceed in forma pauperis: therefore,
IT TS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, August 18, 2005.
FOR THE COURT: é
fOr" DQ.
Reewen Oren ares con) 8)
Associate Justice iB. SEAL s/
og wis
or wi
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
|
5f24ff87-b6ee-4759-9e0f-90a23a5aea79 | Nowicki v. GMP Associates, Inc. | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26006
138 S002
IN THE SUPREME COURT OF THE STATE OF HAWAT'E”
JACEK NOWICKI, Claimant-Appellant,
aad
GNP ASSOCIATES, INC. and TRAVELERS INSURANCE cow,
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS
APPEALS BOARD
(CASE NO. A52000-503
(2-97-1102) (2-9a-04855))
iG REQUEST ON
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of claimant-appellant Jacek
Nowicki's ‘Request for Reconsideration" of this court's August
10, 2005 denial of his request for a sixty-day extension of tine
to file an application for a writ of certiorari, filed August 29,
2005, the papers in support thereof, and the record herein,
IT 1S HEREBY ORDERED that Nowicki’s request for
reconsideration is denied as untimely. See Hawai'i Rules of
Appellate Procedure, Rule 40 (providing that reconsideration may
be sought within ten days after the filing of che court's
ruling).
DATED: Honolulu, Hawai"i, September 2, 2005.
Jacek Nowicki, claimant- by lpn.
appellant, on the request 4 oe Lo
Pewie 0 -aeu oe
Ge rns by
|
94b40d5c-cb46-4495-846a-c2528734b470 | State v. Lee | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOTFOR PUBLICATION ***
no. 26182
sane
1 THE SUPREME COURT OF THE STATE OF HAWAT'T al
a
STATE OF HAWAI'I, Plaintiff-Appellee,
vs.
aad
HYE HYUN LEE, Defendant-Appellant.
lee: Kd S- aN
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1P102-6070 of 7/25/03; HPD CR. NOS. 02186505; 02186507)
(By: Moon, C.J., "Levinson, Nakayama, Aesba, and Duffy 39.)
Defendant-appellant Hye Hyun Lee appeals from the
istrict court of the First Clrcuit’s December 10, 2009 final
Judgment of conviction for misdemeanor prostitution, Havat's
Revised statutes (HRS) § 712-1200 (1993), and unlicensed massage,
URS § 452-2 (1993). Anong her points of error on appeal, Lee
contends that, in denying her motion to dismiss due to illegal
arrest, the district court erred when st ruled that the Hawa’
and United states Constitutions allow warrantless arrests based
on acts committed weeks before the arrest. The State of Hawai'i
argues in response that this court lacks jurisdiction to hear the
netant appeal and that the arrest was valid.
Upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advocated and the issues raised, we resolve the
\ the Honorable Clarence Facarro presided over this matter:
*** NOT FOR PUBLICATION ***
parties’ contentions and hold as follows: (1) this court has
jurisdiction to hear the instant appeal because Lee's notice of
appeal was filed on October 22, 2003,* after the district court's
January 17, 2003 announcement of her conviction but prior to the
court’s entry of judgment on December 10, 2003, and was thus
timely pursuant to the premature appeals provision of the Hawai'i
Rules of Appellate Procedure (HRAP). See HRAP Rule 4(b) (4) ("A
notice of appeal filed after the announcement of a decision,
sentence or order but before entry of the judgment or order shall
be deemed to have been filed on the date such judgment or order
is entered.”); (2) Lee's warrantless arrest was unlawful because
it took place twenty-two days after the police found probable
cause and there were no obstacles preventing them from making the
+ Lee's original October 22, 2003 notice of appeal and December 10, 2003,
amended notice of appeal purported to appeal the district court’ s september
23; 2003 order denying Lee's motion to dismiss the charges, which was an
interlocutory order not certified for, and therefere not subject to, appeal.
ee "86 Hawai'i 404, 406 967 P-24 236, 238 (1998) (LE a
Sefendant ina criminal case seeks to take interlocutory appeal, it is
hecessary to move for and recesve an order allowing the appeal): Beci
as not until ber January 26, 200¢ second amended notice of appeal that Lee
ave explicit notice that she was appealing from the judgment of conviction,
fer notice may technically have been defective. See State w, Ontiveros, 82
Hawai'i 446, 448 n.5, 523 P.24 388, 390 n.5 (1996) “Technically, the
Conviction was not properly appealed by the amendnent of the original notice
of appeal. “Since an amended notice of appeal relates back to the notice of
appeal it purporte to amend, it does not appeal an order, Judgaent, or decr
entered subsequent to the notice of appeal it purports to anend.”") (Internal
quotation signals and citation omitted). However, Lee’s intent to challenge
fer conviction was clear from the outset because the motion to dismiss was
both filed and denied after her conviction had already been announced
(effectively causing the denial to be more in the nature of @ final, rather
than interiscstory, oxder). Particularly in light of the procedural quirks of
the case, any failure to perfect the oppeal from the judgment does not
preclude her right of appesl. See id. ("we have established, as a general
Broposition, that counsel's failure to perfect an appeal in a criminal case
Soes not preclude sn appellant's right to appeal")
2
*** NOT FOR PUBLICATION ***
arrest in the interim, See State v, Keave, 107 Hawai'i 1, 6, 108
P.3d 304, 309 (2005) (holding that where the police have probable
cause to arrest, have no obstacle preventing them from making the
arrest, but wait a significant amount of time before making the
arrest, making such arrest without a warrant violates HRS § 803-
(3) although Le
S arrest was unlawful, that does not entitle
her to dismissal of the charges or a reversal of her conviction.
See Keawe, 107 Hawai'i at 7, 108 P.3d at 310 (“illegal arrest,
standing alone, is insufficient to entitle [the defendant] to a
reversal of her conviction”) (internal quotation signals and
citation omitted). Ordinarily the proper remedy would be to
suppress the evidence collected as a result of the unlawful
arrest, but in Lee’s case the prosecution did not introduce any
evidence resulting from her unlavful arrest; thus, there is no
evidence to suppress, such that dismissing the charges would be
meaningless. See Keawe, 107 Hawai'i at 7, 8 n.9, 108 P.3d at
310, 311 n.9 (holding that the proper remedy for unlawful arrest
is the suppression of evidence collected as a result but that
reversal would serve no purpose where no such evidence was
collected or presented because “the State could simply obtain a
warrant for [the defendant’s] arrest and re-prosecute her”
‘Therefore,
IT IS HEREBY ORDERED that the district court's
Septenber 23, 2003 order denying Lee’s motion to dismiss and
*** NOTFOR PUBLICATION ***
December 10, 2003 judgment of conviction and sentence are
affirmed.
DATED: Honolulu, Hawai'i,
on the briefs:
William A. Harrison
(of Harrison & Matsuoka)
for defendant-appellant
Hye Hyun Lee
Mangmang Qiu Brown,
Deputy Prosecuting Attorney,
for plaintiff-appellee
State of Hawai'i
August 5, 2005.
|
9eafe1f2-2cf4-46c1-ac38-40f79641443e | State v. De Guair. Concurring and Dissenting Opinion by J. Acoba [pdf]. S.Ct. Order of Correction, filed 08/22/2005 [pdf]. | hawaii | Hawaii Supreme Court | *##* FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00 ==~ 3
STATE OF HAWAI'I, Plaintiff-Appellee,
aaa
WALTER WAYNE DE GUATR, Defendant-Appellant « Gnd, thug, questions of constitutional law.
State v. Jenking, 93 Havait 87, 100, 997 P.2d 13, 26 (2000)
(eitations omitted) «
State v. Aplaca, 96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001).
c. Denial Of An HREP Aule 40 Petition Without An
vii
With regard to the denial of a HRPP Rule 40 petition
without an evidentiary hearing, HREP Rule 40(f) provides in
Felevant pare
tn addition, we hav
TE a petition alleges facts that if proven would
entitle the petitioner to relief, the court shall
Grants hearing which may extend’ only to the issues
feised in the petition or answer. However, the court
may deny @ hearing if the petitioner's claim is
Retentiy frivolous and is without trace of support
Cither in the record or from other evidence submitted
by the petitionse. ‘The court may also deny a hearing
Oh a specific question of fact when a full and fair
Cvidentiary hearing upon that question was helé during
the course of the proceedings wnich led te the
judgment or custody which is the subject of the
petition or st any Later proceeding.
reviously seated:
‘aaa general rule, a hearing should be held on &
nule 40 petition for post-conviction relief where the
petition states a colorable claim. To establish a
Eolorable claim, the allegations of the petition must
Show that if taken a2 true the facts alleged would
Change the verdieti7] however, a petitioner”:
Conclusions need not be regarded as true. where
Gnamination of the record of the trial court
proceedings indicates that the petitioner’ s
Eliegecions show no colorable claim, it is not error
fo deny the petition without » hearing. The question
on appeal of a denial of a Rule 40 petition without «
fering is whether the trial record indicates that
Petitioner's application for relief made such
showing of a celorable claim as te require « hearing
Before the lower court.
state val Allen, 7 BW. App. (89,) $2-93, 744 P.2d [785,)
ss
792-93 ( (1987) | (emph
ie added) «
[in this fegard], the appellate court steps into
tthe trial court's position, reviews the sane trie
Hecord, and redecides the issue. Because the
Gppellate court's determination of “whether the trial
Teised indicates that Petitioner” s application for
Eelief made such @ showing of colorable claim
Eequire # hearing before the lower court” is a
Guestion of lew, the trial court’ s decision is
Feviewed de nova. See United States v. Bursons, 872
an
+#% FOR PUBLICATION
F.24 915 (9th Cir, 1989) (denial of a post-conviction
otion based on ineffective assistance of counsel
Mithout conducting an evidentiary hearing ts reviewed
Je nove fora determination of whether the files and
SEITE of the case conclusively show that, petitioner
{fveneitied to no relief). Therefore, we hold that.
tthe issue whether the trial court erred in
Genying 2 Rule 40 petition without a hearing based on
he showing of 8 colozable claim is reviewed de
thusy the right/urong standard of review 1s
spplicasie.
anv. Beate, 76 Hawas's 423, 427, 879 P.2d $28, S32 (1994)
Rarnett v. State, 91 Hawai'i 20, 26, 979 P.2d 1046, 1052 (1999)
(some brackets added and some in original) .
D. f Assi nse!
In asseseing claims of ineffective assistance of
counsel, the applicable standard is whether, “viewed as &
Shole, the assistance provided (was) ‘within the range of
“Smpetence Genanced of attorneys in criminal cases.’” State
STEetone, G2 Haw. 346, 348, 615 F.2d 102, 106 (1960)
{Station omitted).
“General claims of ineffectiveness
Sfe"inausticient and every action or
omission ia not subject to inquiry.
Speeitic actions or omissions
sileged to be error but which had an
Sovicus tactical basis for
the defendant's case
Sill not be subject to further
Ecrutiny. If, Rowever, the action
Sf omtasion had no obvious basis for
Benefiting the defendant’ s case and
ft Sresulted sn the withdrawal or
Substantial impaiment of
potentially meritorious defense,”
Ehen [it] ss will be evaluated as
ene pfeimation that... an
Srdihary competent criminal ettorey
should have had.
Buiones v. Stage, 74 Haw. 442, 462-63, 049 P.2d
SEeNSSet tases) temphases in original) (internal
citations omitted). The burden of establishing
Snetfective assistance rests with the defendant
and can only be met by denonstrating specific
Srrore of omissions resulted in the withdrawal
Gr substantial impairment of a meritorious
Sefer
Sbetermining whether a defense is
spotentinlly neriterious’ requires an evaluation
of the possible, rather than the probable,
Gitect of the defense on the decision
faker. ©. +, Accordingly, no showing of
Nictual’ prejudice is required to prove
ineffective assistance of counsel.” Briones, 74
How, at 464, 648 Po2d at 977 (citing State v,
S14 Haws 94, 73, 837 Bead 1298, 1308
tise21)-
a2
‘##* FOR PUBLICATION *#*
v ipuni, 98 Hawai's 387, 392, 49 P.3d 353, 358 (2002)
(quoting State v, Pacheco, 96 Hawai'i @3, 93-94, 26 P.3d S72,
982-583 (2001) (quoting Dan v. State, 76 Hawai'i 423, 427, 879
P.2d 528, 533 (1994))) (some brackets added and some in original)
(some citations omitted in original).
III. DISCUSSION
A. The Circuit Court Did Not Err In Denying De Guair’s
REP Rule 40 Petition
on appeal, De Guair argues that the circuit court erred
in denying his Rule 40 petition because he “established error by
the trial court [in] allowing his plea to withstand scrutiny for
a crime( that) did not exist at the time of (his] change of ple
and for ineffective assistance of counsel based upon his counsel
allowing him to plead to a crime that did not exist.” De Guair's
argument is without merit.
De Guair challenges the circuit court's FOF No. 12 and
its four Cols filed on April 26, 2004. He argues that by
allowing him to plead to a non-existent offense, his trial
counsel's advice “resulted in the withdrawal or substantial
impairment of a meritorious defense(.]” De Guair’s argument is
mistaken. De Gueir’s trial counsel had obvious tactical reasons
for advising him to accept a plea agreement to, inter alia, the
lesser charge of attempted manslaughter, considering -- as trial
that “{b]ut for the plea
counsel advised the circuit court
agreement, (De Guair] would have faced a murder in the first
degree charge[.]” The assistance De Guair’s trial counsel
provided fell well “within the range of competence demanded of
attorneys in criminal cases,” and he omitted nothing that
resulted “in the withdrawal or substantial impairment of @
potentially meritorious defense.” See Poaipuni, 98 Hawai'i at
392, 49 P.3d at 358. Accordingly, we hold that De Guair’s
a3
#44 FOR PUBLICATION **#
allegation of error does not constitute ineffective assistance of
counsel in violation of his state and federal constitutional
rights.
Recause De Guair’s remaining point on appeal of the
circuit court’s denial of his Rule 40 petition is identical to
that of his appeal of the denial of his Rule 35 motion, we
address it infra in section 11!.B.
B. The it Di Err In Der De
RPP Rule 35 Motion,
be Guair argues, as he does in his appeal of the
circuit court’s denial of his Rule 40 petition, that the circuit
court erred in denying his HRPP Rule 35 motion, inasmuch as,
according to De Guair, he “established an abuse of discretion by
the trial court in allowing his [no contest] plea to stand to a
crime [that) did not exist at the time of {his} change of plea.”
1 is to the circuit court's Col
De Guair’s sole challenge on app*
finding that “[t]he Defendant was properly found guilty of
Attempted Manslaughter.”
be Guair maintains that “(t]he plea agreement form is
silent on a single fact constituting attempted manslaughter” and
that, “[a)t the change of plea hearing, the intentional firing of
a weapon is mentioned|,] but no where is {sic} [his] state of
mind mentioned or that he was under the influence of extreme
mental or emotional distress.” De Guair then argues that, during
the relevant period, he was not under the influence of any
extreme mental or emotional disturbance and thet his action in
shooting William Mariani was purely intentional. De Guair
therefore concludes that his conviction of the offense of
attenpted manslaughter is unlawful, inasmuch es attempted
sreckless” manslaughter does not exist, pursuant to this court's
decision in Holbron, and there was no “factual basis” for a
aa
4 FOR PUBLICATION
conviction of attempted manslaughter by virtue of extreme mental
or emotional disturbance. De Guair reasons that this court must
“reduce” his sentence accordingly and that “the judgment for that
count must be set aside.”
In Holbron, we held that “there can be no attempt to
commit involuntary manslaughter, and, thus, under the Hawai'i
Penal Code, there is no offense of attempted manslaughter by
virtue of attempting recklessly to cause the death of another
person.” 80 Hawai'i at 33, 904 P.2d at 918. Accordingly, there
is only one possible version of attempted manslaughter, iie.,
that “{iJn a prosecution for [attempted] murder in the first and
second degrees it is a defense, which reduces the offense to
[attempted] manslaughter, that the defendant was, at the time he
[attempted to] cause[] the death of the other person, under the
influence of extrene mental or emotional disturbance for which
there is a reasonable explanation.” HRS § 707-702(2).
De Guair does not dispute that he caused Kenneth
Mariani’s death and that he shot William Mariani. Moreover, he
insists that he did so intentionally. Nevertheless, De Guair’s
insistence that he intended to shoot William Mariani does not
Lift his conduct out of the realm of the attenpted manslaughter
offense to which he entered a no contest plea. De Guair’s
contention that the factual basis for his plea was not indicative
of attempted manslaughter by virtue of EMED assumes that a
“factual basis” is “a necessary precondition to the acceptance of
ano contest plea.” State v. Merino, 81 Hawai'i 198, 215, 915
P.2d 672, 689 (1996), But, as this court discussed in Merino, it
is not.
Noto contendere, or “no contest," is
defined as a "(tlype of plea which my be
Entered with leave of court to # criminal
Complaint or indictment by which the defendant
Goce not agait or deny the chares, though =
fine of sentence Ray be imposed pursuant to it
a5.
#44 FOR PUBLICATION *#*
‘The principal difference between a plea of
Guilty anda plea of nolo contendere is that the
[oeter may not be used against the defendant in
a'civit action Besed upon the same acts...
tstase vs -lGames, 19 Hawas's (32,1 33.n.3, 897 P.2d (959,
Seoac3 [iss8)1 (quoting Black"s Law Dictionary 1048 (6th
fed. 1990) (citatson omitted)) (some emphasis added and some
Seietea). ‘by contrast, a guilty plea is a “(floral
SGmissicn in court a te quilt of having committed [al
Ta ici ghich # defendant my make if he oF she
nuntarilyl.]” slaek’s Law
‘added «
Id, at 211, 915 P.24 at 685.
In Merino, the defendant Merino entered @ no contest
plea to conspiracy to commit first degree theft and then, after
his conviction, contended on appeal that the circuit court had
erred in accepting his plea because the factual basis for the
plea did not show that he had engaged in conspiracy to commit
first degree theft. Id, at 215, 915 P.2d at 689. We note that
Merino's argument was that the circuit court had erroneously
accepted his no contest plea because he had not in fact committed
the offense to which he had pled. Id. at 211, 915 P.2d at 685.
By contrast, De Guair argues that the offense to which he pled no
contest did not exist. As we discuss infra, the distinction
between the two arguments is without a difference with respect to
the applicability of the Merine analysis
In the present matter, as in Merino, De Guair
“tendered, and the circuit court accepted, a] no contest plea
pursuant to HRPP Rule 11” (1996).? Id, at 215, 915 P.2d at 689.
+ uREP Rule 21 provides in relevant pert:
(a) Alternatives.
‘A defendant may plead not guilty, guilty or
defencent refuses to plead or if the court
‘Of guilty or nolo contendere or if a
enter
Tefuses to accept a pi
Extendant corporetion fails to appear, the court sha
piea of not guilty
[wp Noic contendere. A defendant may plead nolo contendere
caly wlth the consent ef che court. such a plea shall be accepted
Sp tne court only after due consideration of the views of the
(continued...)
16
FOR PUBLICATION **#
Pursuant to HRPP 11(f), which is key to Merino's appeal,
‘the court is prohibited from entering judgment
Upon a guilty plea if st is not subjectively
Setiefied that there is a factual basis for the
ples, The court must satisfy itself that the
Ronduct which the defendant admits constitutes
the offense charged in the indictment [,
Conplaint,] or information or an offense
{included therein to which the defendant has
Pleaded guilty. While the factual basis may
Cone from various sources, st mist appear on the
Fecord.
State ve Teves, 4 Haw. App, 966, $69, 670 P.24 834, 837
(i503) {ektations and internal quotation marks omitted)
+1. sconténued)
perties and the interest of the public in the effective
Rdninistestion of justice.
{cl Advice te Defendant. ‘The court shall not accept @ plea
of guilty or nelo contendere without first addressing the
Getendant persenally in open court and determining that he
Understands the following?
{2} the nature of the charge to which the plea is offered;
and
(2) the maximum penalty provided by law, and the maximum
sentence of extended term of imprisonment, which may be inposed
for the offense to which the plea is offered; and
(a) that he haa the right to plead not guilty, or to persist
in that plea if st has already been made and
(4) that if he pleads guilty or nolo contendere there will
not bes further trial of ny kind, so that by pleading guilty or
holo contendere he waives the right to a trialy and
(S) that if he ie not « citizen of the United States, a
conviction of the cffense for which he has been charged may have
the consequences of deportation, exclusion from admission to the
United States, or denis) of naturalization pursuant to the laws of
tthe Unsted state
(a) Insuring Thet the Plea Is Voluntary. The court shall
not accept a piea of guilty or nolo contendere without firet
Rddressing the defendant personally in open court and determining
thet the plea is veluntary and not the result of force or threats
Orof promises apart from plea agreement. The court shall a
Tnguire as to whether the defendant's willingness to plead guilty
Orinole contendere reaulte from any plea agreenent.
{e) Plea Agreement.
(2) In General, The prosecutor and counsel for the
defendant, of the defendant when acting pro se, may enter into
pies agrecnents that, upon the entering of a plea of guilty or
hele contendere to a charged offense or to an included or related
Defense, the prosecutor will take certain actions or adopt certain
petitions, including the dismissal of other charges and the
Feconmending oz not oppoting of specific sentences or dispositions
on the charge to which a plea was entered, The court may
participate in discussions leading to such ples agreements and may
agree to be bound thereby.
is] determining Accuracy of Plea. Notwithstanding the
acceptance of a plea of guilty, the court shall not enter ©
Jucgnent. upen such plea without making such inguiry as shall
neiety dt that there ia a factual basis for the plea.
a7
#4 FOR PUBLICATION *#*
(emphases added) .
‘The sbsence of any reference to nolo contendere pleas
kn REP ILE) —- dn the face of the express Incorporation of
Guch pleas within the scope of HRPP lla), (bly (clr (3s
Gnd (ei == gives rise to the question whether the circuit
Court was under any obligation to ascertain « “factual
Saris fer Merino's no contest plea to criminal conspiracy.
Ritell settled canon of statutory construction, the history
Gnderlying the promilgation of HREP 11(£), and the appellate
Sige Law gf this jurisdiction all suggest’ a negative. anawer.
Of UTE this court had intended HRFP 11(£) to apply
to nolo Gontendere pleas, it ould not have expressly
Minded the section's subject matter to guilty pleas.
SUM inp 12(£) was patterned after Federal Rules of
ceiminal Procedure (FRCP) Rule 11(f), (State v. IMedeizos, @
Nowe App. (390) 43,791 Pe2d (730,] 493, (cent. denied, 72
Haw, 669, 633° P.22' 903 (1930),) which in turn substantially
USopeed the formulation recommended by the federal Advisory
Committee on Criminal Rules.
committee on Criminal Rule:
Of nolo contendere not be accepted without the
Court first satisfying iteelf that the defendant
Somuitted the exine charged. This overlooked
fhe fact that an innocent defendant may not wish
Eo'contest the charge and that the nolo plea is
a’means for him (or her] to do this.
Aecerdingly that proposal was not adopted and
Rule 11(#), requiring the court to determine the
Recuracy of a plea, applies to guilty pleas but
hot to ples of nolo contendere:
1 (c.] weight (Federal Practice and Procedure: —tedexal
fules of Criminal freceduse) $177, at 670-71 (footnotes
onitted) (emphasis added): ace also North Caroling va
ig. 400.8, 28, 35°36 ne 8s 91 S.Ct, 160, 166-67, 27
BESZ4 lez (leo) (othroughout’ ts history, | . . the plea
Ci nole contendere has been Viewed not as an expr
Sinission of guilt but ae a consent by the defendant that he
for she) may Be punished ae if he [or she) were
Galtty. (Face) 11 preserves this distinction in its
Zequitement that « court cannot accept a guilty plea ‘unless
HEM Satiaeied that there ie 4 factual basis for the pli
there is no similar requirenent for pleas of nolo
ESneenderes since it was thought desirable to permit
Sefendanes' te plead nolo without making any inguiry into
their actual guile.” (Citation omitted! )
By implication, the appellate cese law of Hawai'i has
recognized that, as is true of FRCP 11(f), HREP 11(f1 does
Sot Sequire the court to satisty itself that thers
nics only to ails ‘dnd thet, with respect to pleas
Ghali satisfy it that
for required to make “such
Merino, 81 Hawai‘, at 217-19, 915 P.2d at 691-93 (footnotes
omitted) (emphases added) .
a8
#44 FOR PUBLICATION ###
‘This court's holding in Merino therefore disposes of De
Guair’s argument on appeal. Inasmuch as there is no requirement
that the court elicit a factual basis for a no contest plea, it
matters not whether the facts laid out in De Guair’s change of
plea hearing failed to establish the offense of attempted
manslaughter by virtue of EMED. It is sufficient that the
offense of attenpted manslaughter exists in any form. No more
was required to convict De Guair of that offense pursuant to his
no contest plea. A defendant is convicted of “attempted
manslaughter,” not a varietal of attempted manslaughter, such as
“reckless” or “EMED.” Therefore, the circuit court’s conclusion
that De Guair entered a “valid plea” did not “exceed(] the bounds
of reason or disregard{] rules or principles of law or practice
to the substantial detriment of a party litigant.” Rauch, 94
Hawai'i 315, 322, 13 P.3d 324, 331 (citations omitted).
It is significant that De Guair received the “benefit
of his bargain” and avoided a possible sentence of life
imprisonment without the possibility of parole, which would have
resulted from a conviction of attempted first-degree murder, by
pleading no contest to the offense of attempted manslaughter.
See Merino, 81 Hawai'i at 219, 915 P.2d at 693 ("To allow . «
[d]efendants to plead no contest in exchange for the reduction
and dismissal of charges against them, and then to permit them to
attack the . . . convictions achieved by those pleas, where those
pleas were not conditioned upon the right to appeal, would
jeopardize the integrity of the plea bargaining process.”
(Quoting State v. Morin, 71 Haw. 159, 164, 785 P.2d 1316, 1319
(1990).) (Brackets in original.) (Some ellipsis points added and
some in original.)). Accordingly, we find that it “constitute(s]
the height of chutzpal,]” Merino, 61 Hawai"i at 212, 915 P.2d at
686, that De Guair now challenges the circuit court's sentence
19
#44 FOR PUBLICATION *#*
We therefore hold that the circuit court correctly
denied both De Guair's Rule 40 petition and his Rule 35 motion.
IV. CONCLUSION
Based on the foregoing analysis, we affirm the January
27, 2003 and the April 26, 2004 orders of the circuit court.
on the briefs:
Charlene Y. tboshi, ra io
‘Deputy Prosecuting Attorney,
for the plaintiff-appellee/
respondent/appellee
State of Hawai'i
wichae? Gat, ostendorp and blac Loin
Shawn A, “isle,
252 the defendant-appellant/
tok Elonerseppeliane
Relter Wayne be Guair
Dente rare are
Vm etiys b+
20
|
78025fec-e9f4-452f-9106-d238a6dcea6c | State v. Gorospe | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26885
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
eee
STATE OF HAWAI'I, Plaintiff-Appellant/Cross-Appellee
WARLITO GOROSPE, Defendant-Appellee/Cross-Appei
APPEAL FROM THE THIRD CIRCUIT COURT Zo|
(CR. NO. 02-1-248) es
ORDER
‘Acoba, J.)
CE Hs Gf dS SUNd
qavs
(By:
upon review of the record, it appears that (1) on
gune 17, 2005, Defendant-Appellee/Cross-Appellant’s cross-appeal
was disnissed by stipulation of the parties and (2) on
September 23, 2005, Plaintiff-Appellant/Cross-Appellee submitted
a stipulation for dismissal of its appeal, which was not approved
without prejudice to a subsequent stipulation that complies with
HRAP Rule 42(c): Therefore,
IT 1S HEREBY ORDERED that the order filed on
September 23, 2005, not approving Plaintiff-Appellant’s
stipulation for dismissal of appeal, is vacated.
37 IS FURTHER ORDERED that the stipulation to dismiss
Plaintiff-Appellant’s appeal, filed on September 23, 2005, is
approved.
DAYED: Honolulu, Hawai'i, September 29, 200
|
ac538aa2-8851-40cd-8b99-56a0b14501e1 | Puuohau v. Credit Services | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION *** Pla B
No. 27252 oR OB
=
JARED PUUOHAU, Plaintiff-Appellant, 5
CREDIT SERVICES, Defendant-Appellee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. NO. 1RCO4~1-7333)
(ay: Nakayama, doy for the court)
Upon review of the record, it appears that (1) the
Suprene Court Clerk's Office inforned Appellant, by letter dated
May 27, 2005, that the record on appeal cannot be filed without
Payment of the filing fee pursuant to Rule 3(f) of the Hawai'i
Rules of Appellate Procedure (HRAP) or an executed motion to
proceed in forma pauperis pursuant to HRAP Rule 24 and that the
matter would be called to the attention of the court for such
action as the court deemed proper pursuant to HRAP Rule 11(a),
including dismissal of the appeals and (2) Appellant failed to
pay the filing fee or submit a motion to proceed in forma
pauperis; therefore,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawas't, August 4, 2005.
FOR THE COURT: SE
Breet a
Associate Justice
considered by: Moon, C.
Levinson, Naka}
wna, Acoba, and Duffy, 39
aaws
|
eb380ded-0cdf-4f2f-ba54-00881d20ecbe | Deparini v. State | hawaii | Hawaii Supreme Court | ** NOT FOR PUBLICATION ***
No. 27187
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
hy 62 Or side
a
DANIEL DEPARINI, Plaintiff-Appellant, |
STATE OF HAWAT'T, HONORABLE BARBARA TAKASE, DEPUTY ATTORNEY
GENERAL JOANNA. FONG, LAWRENCE K. MAHUNA, STANLEY KAINA, "JOHN
GRISKE, POLICE SERGEANT JOHN DOE AND KENAU POLICE STATION,
Defendants-Appellees,
ant
GOMES, PORONA & LEROY, Defendants.
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 04-1-214)
tay: Nawayane, J. for the court?)
Upon review of the statements supporting and contesting
Jurisdiction and the record, it appears that the circuit court's
February 24, 2008 and March 1, 2005 orders dismissing the clains
against the state defendants and the county defendants vere not
reduced to separate certified judgments, as required by HACP 58,
See Jenkins v. Cades Schutte Fleming & Wzight, 76 Hawai" 115,
863 #.24 1934 (1994) (an order that resolves clains in @ cizcult
court civil case is not appealable unless the order 4s reduced to
a separate judgnent pursuant to HRCP $8). Thus, the appeal of
the February 24, 2008 and March 1, 2005 orders ia premature and
we lack jurisdiction. Therefore,
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
ga,
aaa
*** NOT FOR PUBLICATION * * *
IT 1S HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, July 29, 2005.
oR THE couRt:
ZONE &
Dessau Cromsaeyann lf @
Associate Justice
|
4d6d1ec0-96ec-4f10-8fc3-7e3648085381 | State v. Alderwerelt | hawaii | Hawaii Supreme Court | wo, 26161
IW THE SUPREME COURT OF THE STATE OF HAWAT'T .
90 $002
STATE OF HAWAI'I, Respondent-Appellant
SIS hye
DEREK VAN ALDERWERELT, Petitioner-Appellee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(BC=cR NO. 03-1-0242)
‘ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI AS UNTIMELY
(By: Nakayama, J., for the court’)
's application for writ of
Petitioner-Appell
certiorari filed ex officio on September 30, 2005, is hereby
dismissed as untimely.
DATED: Honolulu, Hawai'i, October 13, 2005.
FOR THE COURT:
Presets CO wader ourre
Associate Justice
Joel Edelman for
petitioner-appellee
on the writ
‘considered by! Moon, C.J., Levinson, Nakayama, Rcoba, and Duffy, 99.
oats
|
9f1d6f78-cd4b-4612-894a-4821f658d0ba | State v. Worman | hawaii | Hawaii Supreme Court |
No. 25984
IN THE SUPREME COURT OF THE STATE OF HAWAT'Z ’
"2 HY 6- 9nvso0e
STATE OF HAWAI'I, Respondent-Appellee,
JOHN PHILLIP WORMAN, Petitioner-Appellant.
SS
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 01-21-1520)
Moon, C.J., for the court*)
Petitioner-appellant John Phillip Worman’s application for
writ of certiorari, filed July 28, 2005, is denied.
DAI Honolulu, Hawai'i, August 9, 2005.
Mary Ann Barnard, FOR THE COURT:
for petitioner-appellant
Lt Justice
\ considered by: Moon, €.2., jen, Nakayama, Acoba, and Duffy, 39.
aad
|
f45746b4-d8af-4d87-9706-94d37341453c | The Bank of New York v. Quevedo | hawaii | Hawaii Supreme Court | ‘eemor FOR PUBLICATION***
Neen ae
No. 25512
ay
a
S0ud
IN THE SUPREME COURT OF THE STATE OF HAWAT'Z=)
et
‘THE BANK OF NEW YORK, AS TRUSTEE OF ANRESCO’|
RESIDENTIAL SECURITIES CORPORATION MORTGAGE LOAN
TRUST 1997-2 UNDER THE POOLING AND SERVICING AGREEMENT
DATED AS OF JUNE 1, 1997, Plaintiff-Appellee
WLI
cy
vs.
LOLITA VALDEZ QUEVEDO aka LOLITA QUEVEDO,
Defendant-Appel lant
and
AVELINO JARA MILLO QUEVEDO aka AVELINO QUEVEDO,
JOHN and MARY DOES 1-20, DOE PARTNERSHIPS, CORPORATIONS
‘or OTHER ENTITIES 1-20, Defendants
ee
APPEAL FROM THE THIRD CIRCUIT COURT
(cIv. NO. 998-117)
y TION
(By: Moon, C.J., Levinson, Nakayama,
‘Acoba, and Duffy, JJ.)
Defendant-Appellant Lolita Valdez Quevedo (Appellant)
appeals from a Novenber 4, 2002 order of the circuit court of the
third circuit’ (the court) denying Appellant's Hawai'i Rules of
Civil Procedure (HRCP) Rule 59(e)? motion for reconsideration of
+ The Honorable Riki May Anano presided.
+ Ree Rute $9(@) (2003)
Rule 59, NEW TRIALS) AMENDMENT OF JUDGAENTS,
ie) Motion to alter or azend judgaent. Any motion to
alter or amends judgment shall be filed no later than 10
Gays after entry of tne Juggment.
aad
/*NOT FOR PUBLICATION*#*
‘an August 28, 2002 order denying Appellant’ HRCP Rule 60(b)*
motion to set aside judgment and decree of foreclosure. We
affim.
on appeal, Appellant contends that the court erred in
granting summary judgnent and a decree of foreclosure because
(2) the only Loan ledger introduced at the summary judgment
hearing was that of a diffe
different mortgage loan, (2) Appellant had submitted a sworn
declaration that she and her husband (the Quevedos) had not
nt borrower, pertaining to a
received, at loan closing, two completed copies of the notice of
the right to cancel the mortgage transaction and had sent timely
notices of cancellation of their secured loan, copies of which
Were introduced into evidence without objection, (3) Appellant,
previously discharged in bankruptcy, was not asserting an
affirmative claim but a Truth-in-Lending Act (TILA) recoupment
defense which she had standing jointly with her bankruptcy
trustee to allege, (4) the court should have considered the
merits of Appellant's affirmative defenses and not merely decided
whether Plaintiff-Appellee, The Bank of New York, as Trustee of
AMRESCO Residential Securities Corporation Mortgage Loan Trust
1997-2 under the Pooling and Servicing Agreement Dated as of June
1, 1997 (Appellee) satisfied the test for foreclosures set forth
> RCP Rule 60(b) (2003) states in relevant part as follows:
Role 60. RELIEF FROM JUDGMENT OR ORDER.
(b) Mistakes; inadvertance; excusable neglect.
newly discovered evidence; fraud, ete. On motion and
lupon such terms as are just, the court may relieve a
party or a party's legal representative from a final
jent, order, or proceeding for the following
sons: |. - + (4) the judgnent is voids... oF
(6) any other reason Justifying relief from the
operation of the Judgment
‘s#*HOT FOR PUBLICATION***
Oe
in Bank of Honolulu, NA. vs Anderson, 3 Haw. App. 545, 654 P.2d
1370 (1982), and (5) Appellant is entitled to HRCP Rule 60(b)
relief as the errors conmitted by the court are, in part, not
only jurisdictional, but amount to @ serious violation of due
process and equal protection of the law.
“HRP [Rule] 59(e) motions for reconsideration are
reviewed under the abuse of discretion standard.” Kaneohe Bay
Cruises, Inc. v. Hirata, 75 Haw. 250, 258, 861 P.2d 1, 6 (1993).
Generally, HRCP Rule 60(b) motions are also reviewed for abuse of
discretion. See Hawai'i Hous, Auth, v. Uehara, 77 Hawai'i 144,
147, 683 P.24 65, 62 (1994) (citing Paxton v, State, 2 Haw. App.
46, 48, 625 P.2d 1052, 1054 (1981)). However, in the application
of HRCP Rule 60(b) (4), this court has said that “[i]n the sound
interest of finality, the concept of void judgment must be
narrowly restricted,” and thus, “{a] judgment is void only if the
court that rendered it lacked jurisdiction of the subject matter,
or of the parties, or if it acted in a manner inconsistent with
of law.” Meindl v, Geneave Pac, Techs., Inc. (in re
Genesys Data Teche., Inca}, 95 Hawai'i 33, 38, 18 P.3d 895, 900
(2001) (internal quotation marks and citations omitted). As
due proce:
such, HRCP Rule 60(b) (4) motions are reviewed under the
right/wrong standard. See Keno‘o v. Kane, 106 Hawai'i 270, 281,
103 P.3d 939, 950 (2005).
As to her first contention, Appellant argues that
Appellee failed to meet its burden of proof on its motion for
summary judgment inasmuch as its submission of an incorrect
ledger amounted to inadmissible hearsay. However, Appellant
admitted, under direct questioning by the judge and with her
attorney present, that she had not made mortgage payments for two
or possibly three years. Appellant's statements made in court
3
‘seNOT FOR PUBLICATIONS #®
Se
and on the record were admissions made by @ party-opponent. In
its summary judgment motion and at the hearing, Appellee pointed
out that Appellant had failed to deny Appellee’s interrogatory
request for an admission that she had “not made all the payments
due and owing” under the mortgage. See HRCP Rule 36(a) (2001).
Moreover, the court extended Appellant an opportunity to correct
the ledger discrepancies in the record by supplementing
Appellant's written opposition to the summary judgment motion, an
opportunity that Appellant did not act upon.
In Light of these considerations, the court properly
granted summary judgment and a decree of foreclosure in favor of
Appellee. The incorrect ledger, while indeed inadmissible, was
rendered immaterial by Appellant’s own admissions of nonpayment
at the summary judgment hearing and by the failure to respond to
the aforesaid interrogatory. Thus, the court did not abuse its
Giscretion in denying both Appellant’s HRCP Rule 60(b) motion to
set aside the summary judgment and the subsequent HRCP Rule 59(e)
motion to reconsider.
Appellant appears to argue that GE. Capital Hawai’
Inc. vs Yonenaka, 96 Hawai'i 32, 25 P.3d 807 (App. 2001), holds
that the submission of an erroneous ledger renders the order
granting a motion for summary judgment per ge reversible.
However, this court overturned Yonenaka in part. See Brice v
AIG Haw. Ins, Co., 107 Hawai'i 106, 111-12, 111 P.3d 1, 7-8
(2005) (holding that absent plain error, “a party who fails to
object to inadmissible affidavits and exhibits waives the right
to do 80 on appeal”).
As to her fourth contention, Appellant argues that the
court erred in applying the four-prong test set forth in
‘#eMOT FOR PUBLICATION®**
i
Anderson‘ without considering the merits of Appellant’s
“affirmative defenses.”* An examination of the record indicates
that although Appellant raised certain defenses in her initial
pleading, she argued only the mistakenly submitted ledger and a
TILA defense in subsequent filings with the court. Generally,
this court will “disregard [a] particular contention” if the
appellant “makes no discernible argument in support of that
position[.]” Norton v. Admin, Dir, of the Court, 80 Hawai'i 197,
200, 908 P.2d S45, 548 (1995), recon, denied, 80 Hawai'i 357, 910
P.2d 128 (1996). See Hawai’
28(b) (7) (“Points not argued may be deemed waived."). Based on
Rules of Appellate Procedure Rule
the record, Appellant has not made 2 discernible argument with
respect to the defenses listed in her Answer, except insofar as
the TILA defense may be impliedly incorporated.
As to Appellant’s second and third arguments, she
claims that the court incorrectly ruled that she lacked standing
to raise the TILA defense that Appellee failed to comply with
mandatory federal disclosure requirements at loan closing.
TIM s “buyer's
Business days to" F
tht uses their principal dwelling as secu
$ 1625(a).(') TILA and ite regulations,
sree" provision allows borrowers thre
jeind, without penalty, a consuner loan
ey. 1S U.S.C
by the
tn Anderson, the Intermediete Court of Appeals established that on
a motion for summary Judgment, mortgage foreclosures require proof of (1) the
Galstence of the Agreanent, (2) the terms of the Agreement, (3) default by the
borrower under the terms of the Agreement, and (4) notice by the lender of
Cencellation to the borrower. "3 Haw. App: at S51, 654 P.2d at 1375.
+ see Gece Fin, Comm v. Jaffarian, 79 Hawai's S16, 526, 904 P.2d
530, §40 (App. (Acoba, J, concurring) ("An affirmative defense ‘is one that
will defeat the plaintiff’ claim if it is accepted by the court.” | (Internal
Guotation sarks, brackets, and citation omitted-))y aff'd, 80 Hawai'i 118, 905
Bra 624 (1995).
+ 15 0,8.c. § 1635(a) (2997) stats
§ 1635. Right of rescission as to certain transactions
jal Disclosure ef obligor’s right to rescind.
Except as otherniee provided in this section, in the
of any conauner credit transaction (including opening
5
‘*sNOT FOR PUBLICATIONS #*
Federal Reserve System, 12 C.F.R, $§ 226.1-29 ("Reg 2"),
Fequire the lender to provide a form stating the specific
Gate on which the three-day rescission period expires. 15,
Orsvcy $1698 (a)y 12 CaPsRe § 226.2300) (5) -(°]
Semar_v. Platte Vallev Fed, Sav, & Loan Ass'n, 791 F.2d 699, 701~
02 (9th Cir. 1986). Tf the lender fails to deliver the required
notice of material disclosures, the borrower may rescind the loan
within three years after consummation. 15 U.S.C. § 1635(f)
(1997) 3" 12 C.E.R. § 226.23(a) (3) (1997). See also Semar, 791
or Ancreasing the credit limit for an open end credit plan)
in which a security interest, including any such interest
arising by operation of Iau, "is or will be retained oF
Acquired in any property which is used a5 the principal
dwelling of the person to whom credit ss extended, he
hntLLaldnicht of the third business day following the
‘fonsummation of the transaction or the delivery of the
Eogether with a statement containing the material
Giselosuses required under this subchapter, whichever is
Tater, by notitying the creditor, in accordance with
fegulations of the Board, of his intention to does. The
yin
‘Sccordance with regulations of the Board, to any obligor in
2 transaction subject to this section the rights of the
Sbligor under this section.
provide, in accordance with regulations of the Board,
ese eet
(emphases added.)
+ 12 8.8. 226.23(b) (1997) states in relevant part:
(b) (2) Notice of clone to rescind. in a transaction
subject to rescission, a creditor shall deliver 2 copies of
‘entitled
fo rescind. The notice shall be on 2 separate document that
identifies the transaction and shall clearly and
conspicuously disclose the following:
(7) The date the rescission period expires.
(Baphases added.)
+ 15 u.s.c. 1635 (4) (2997) states:
(£) Tine Limit for exercise of right
veors after the date of consummation of the transaction or
upon the sale of the provertys uhichever occurs iret,
6
‘*#*MOT FOR PUBLICATION***
F.2d at 701-02.
As to the standing question, the court held that
Appellant lacked standing to raise a TILA defense because she had
been discharged in bankruptcy. In a bankruptcy matter, the
estate consists of “all legal or equitable interests of the
debtor in property as of the commencement of the case.”* 11
notujthstandina the fact that the information and toms
Kegulred under this section of any other disclosures,
‘Shiiaer, except that if (1) any agency empowered to enforce
the provisions of this subchapter institutes a proceeding to
enforce the provisions of this section within three years
after the date of consumation of the transaction, (2) such
agency finds a violation of this section, and (3) the
Sbligde's right to rescind 1s based in whole or in part on
Gny wetter involved in auch proceeaing, then the obligor's
Fighe of rescission shall expire three years after the date
of consummation Of the transaction of upon tl
Of the property, or upon the expiration of one year
foLlowing the conclusion of the proceeding, or any judicial
feview of period for Suaicial review therect, whichever 1s
(Emphasis added.)
12 C.F.R, § 226.23(a) (3) (2987) states:
(a) Consumer's right to rescind,
ia} ine consumer say exercise the right to rescind
until midnight of the third business day following
Consummation, delivery of the notice required by paragraph
(b) of this section, ox delivery of all material
Gseclosures, whichever occurs last.
eicind shell expice 3 years after consummation, upon
Efanafer of all of the consuner's interest in the property,
upon sele of the property, whichever occurs first. In the
case Of certain acministrative proceedings, the rescission
period shall be extended in accordance with section 125(£)
Of the act
added.)
11 U.8.c, § $42(a)(2) (2998) stat
§ S41, Property of the estate.
(2) The Commencement of @ case under section 301, 302,
or 303 of this title creates an estate. Such estate is
Gonprised of ail the following property, wherever located
and by whomever held:
(2) "Excepe as provided An subsections (b) and (c) (2)
1
‘***MOT FOR PUBLICATION:
eee
U.S.C. § 541(a) (1) (1998). Additionally, inasmuch as 11 U.S.C. §
323" states that “the trustee in a [bankruptcy case] has capacity
to sue and be sued,” Appellee asserts that a discharged debtor's
causes of action belong to the bankruptcy trustee.
In Rowland v. Novus Financial Corp., 949 F. Supp. 1447
(D. Haw, 1996), the plaintiff-borrower sought rescission of a
refinanced mortgage, alleging TILA violations by defendant-
mortgagor. Id, at 1450, The plaintiff subsequently filed for
Chapter 7 bankruptcy. Id, at 1451, For this reason, the Unite
States District Court for the District of Hawai'i held that the
plaintiff lacked standing to bring his suit, inasmuch as his
“ITLA cause of action existed prior to the bankruptcy and
therefore [was) included in the bankruptcy estate.” Id. at 1453.
Consequently, the “bankruptcy estate [was] the proper plaintiff
in (that) case.” Ide
Likewise here, Appellant's cause of action existed
prior to her filing for bankruptcy. Appellee refinanced the
‘Quevedos’ loan on March 10, 1997. Thus, any TILA cause of
action, including the purported failure to provide notice of the
right to cancel the mortgage, would have accrued on this date.
Appellant filed for bankruptcy on October 6, 1998 and was
discharged from bankruptcy on January 6, 1999. Because her TILA
cause of action was in existence prior to these dates, it
constituted “property” belonging to the bankruptcy estate, see
of this section, all legal or equitable interests of the
Geptor in property as of the commencement of the cast
© La.s.c. $ 323 (1998) stat
§ 523. Role and capacity of trustee.
(a) The trustee in 2 case under this title is the
tative of the est
(p) the trustee in s case under this title hes
capacity to sue and be sued
‘seenon FOR PUBLICATION***
—
Ad ("[clourts have long held that the definition of ‘property
extends (to) causes of action, including TILA claims. As the 7th
circuit has articulated, there is ‘no question . . . that the
bankruptcy estate includes causes of action such as truth in
lending clains.’” (Quoting In xe Smith, 640 F.2d 688, 890, 692
(7th cir. 1981).) (brackets omitted)), and, hence, “must (have
been] asserted by the bankruptcy trustee rather than” Appellant,
iid. thus, pursuant to the general rule under Bowland, Appellant
lacked standing to raise a TILA claim.
The Rowland court, however, noted two exceptions to the
general rule. Plaintiffs-debtors may raise a TILA claim if they
scan show either (1) that the TILA cause of action falls under
the bankruptcy exemption or (2) that the bankruptcy trustee has
abandoned the TILA claims.” Id, Because the plaintiff in
Rowland had not even alleged that his TILA cause of action was
‘exempted from the bankruptcy estate or that it had been abandoned
by the bankruptcy trustee, the court held that “[i]n the absence
of such a showing, the bankruptcy trustee [was] the proper
plaintiff for [that] suit.” Id, at 1454.
Similarly, in the present case, Appellant has not shown
that her TILA right of rescission was exempted from the
bankruptcy estate or that it was abandoned by the bankruptcy
trustee. The court’s conditional grant of summary judgment
offered Appellant the opportunity to supplement the record with
documentation of her exemption and reaffirmation of the subject
property following bankruptcy, but Appellant failed to submit
this to the court. Therefore, to the court’s knowledge at the
summary judgment phase, the TILA cause of action based on the
right to rescind belonged to the bankruptcy estate and could only
be asserted by the bankruptcy trustee, not Appellant.
9
‘**NOT FOR PUBLICATION*#*
Nonetheless, Appellant submits that a discharged debtor
and the debtor's bankruptcy trustee both have the right to assert
a TILA recoupment defense. Appellant cites to Bacific Concrete
Federal Credit Union v. Kauance, 62 Haw. 334, 614 P.2d 939
(1980), and a number of federal cases regarding the standing
issue. In Pacific Concrete, this court recognized appellant-
debtor's counterclaim against appellee-credit union as
recoupment defense based on the credit union's TILA violations,
and held that, in contrast to an affirmative claim, such a
defense may be brought regardless of the one-year statute of
Limitations. Id, at 337, 614 P.2d at 938-939. Bacitic Concrete,
however, is distinguishable as it does not address the rights of
a debtor who has been discharged in bankruptcy." Moreover, the
case does not support Appellant's characterization of her TILA
claim as a recoupment defense.
Pacific Concrete did not involve a foreclosure action.
Rather, the plaintiff lender in that case was suing the defendant
for the outstanding balance owing on the loans. Id, at 335, 614
P.2d at 937. The TILA defense in that case was held to be “in
the nature of a recoupment defense” because it “arose out of the
same loan transaction as [the lender’s] suit and. . . [could]
Appellant algo cites to certain federal ca:
‘Tush Savings Bank z, Nasz (In ce Nasr), 120 8.8. 855,
1530) (holding that, In the context of plaintift-bank!
defendant-debtor’s dischargeability, the debtor's 7
Gefenses were not exclusive to the bankruptcy trustee
haa standing to reise then), Sulvester v. Martin
939 (Bankr. N.D. TLl, 1991)’ (recognising Gefengant-cebtor’s ©:
jetofi a2 a defense, pursuant to 11 U.S.C. $558, against pl
Adversary proceeding to defendant's Chapter 7 bankruptcy case, where
Plaintiffs sought to hold nondischargesble a judgnent-cebt they had previously
Obtained against defendant in a separate federal case), and Beach v. Ocwen
Fed. Bank, $23 U.S. £10, 419 (1998) concluding that TILA “permite so federal
Fight to rescind, defensively or otherwise, after the as
0.8.C.} § 1635 has run"), Like Pacific Concrete, however, these cases do not
specifically address the issue of a discharged debtor’ s right to raise a TILA
defense in a subsequent mortgage foreclosure proceeding.
10
oT FOR PUBLICATION***
ee
diminish [the lender’ s] recovery.” Id, at 341, 614 P.2d at 940
(emphases added). Appellant does not explain how her TILA clains
could “diminish” any “recovery” by Appellee in a foreclosure
action. As Appellee notes, “there is nothing in the record to
indicate that (the alleged TILA violations} cost her anything
which would be true recoupment.” Pacific Concrete, then, does
not transform Appellant’s TILA claim into a recoupment defense.
Appellant also emphasizes that she is not seeking to
prosecute a claim or counterclaim against Appellee; rather, she
is alleging TILA violations as a defense to Appellee’s
foreclosure action. She argues that “while it is true, as
[appellee's] counsel below correctly argued, that upon the filing
of a bankruptcy petition(,] all of the claims of @ debtor are
considered to be property of the debtor's estate, transferring
exclusive power to the estate’s trustee to prosecute all such
claims, pursuant to (11 U.S.C. § 541], [the rule) does not apply
to a debtor’s defenses[.]” Appellant contends that a trustee
would have no interest in raising a TILA claim on behalf of an
estate where the “secured creditor seeks to foreclose in state
court after the debtor’s discharge,” and therefore, “it would
make no sense to hold that [the] TILA recoupment had somehow been
lost to the discharged debtor who, unlike the trustee, is faced
with a loss of his or her property[.]” Within the context of a
bankruptcy proceeding, the court in Texas Trust Savings Bank v.
Nasr (in re Nasr), 120 B.R. 855, 858 (Bankr. S.D. Tex. 1990),
reasoned that “{a] trustee has no incentive to raise defenses in
a complaint to determine dischargeability since this would
© Appellee points out that “{alpplying (the] theory (in Bacitic
Concrete] to the instant cese, where the lender waived eny right to =
Geficiency judgment, recoupment, as a defensive tactic, 18 meaningless.”
n
‘**eMOT FOR PUBLICATION*#*
provide little or no benefit to the estate, but no reason has
been shown to bar debtor from raising these defenses.”
‘The Nasr court was persuaded by the reasoning supplied
by Collier on Bankruptey. Id, According to the treatise, the
Bankruptcy Code, at 11 U.S.C. § $58, “deals with all the debtor's
defenses,” and “provides the trustee with every defensive w
available to the debtor." 5 Collier on Bankruptey % 558.01(1) [a]
(Alan N. Resnick et al. eds., 15th ed. 2002). The treatise
further reasons:
The trustee is entitled to use a defense to its fullest
extent,
renin thie respect,
a right under {IT -U-8.c. $558) to assert the
She trsate
+ the reason for
thie difference is cl
Id. (emphases added). Nasr and Collier on Bankruptcy, however,
only address the right of rescission as it may be used
defensively during a bankruptcy proceeding, and do not shed light
fon the use of such a right following a debtor’s bankruptcy
discharge. Allowing Appellant to raise a TILA violation defense
in this case would not “prevent an unjust claim against” or
“minimize” the “possibility of recovery from the estate” inasmuch
as the bankruptcy case is now closed.
To reiterate, Appellant has been discharged in
bankruptcy. Appellant has said that she has standing to raise a
right of recoupment defensively, even if such a right belongs to
the bankruptcy trustee as a cause of action. But ultimately, the
remedy that Appellant seeks is rescission of a mortgage based on
the bank's alleged TILA violations. The effect of such a remedy
-- voiding of the mortgage -- is the same, regardless of whether
2
‘¢#*MOT FOR PUBLICATION®#*
As
the right to rescind is exercised as a claim or a defens
Appellee observes,
[clonstruing the TILA rescission right 2s an estate asset is
Yery logicel, as the rescission remedy under TILA clearly
Bilcts all of the assets of the estate which are available
fo other creditors. specifically, if the debtor is granted
Feseission, the lender joins the ranks of unsecured
Efediters because its lien is stripped off of the property:
{P the trustee wore to then sell the property, the proceeds
would be split among the unsecured creditors, rather than
Being applied to pay the lender's priority position.
Notably, Appellant had not documented to the court that
the debt had actually been exempted and reaffirmed, nor has she
taken this argunent up on appeal." Despite Appellant’s claims
that the subject mortgage had been exempted and that she intended
to reaffirm the debt, Appellant never filed bankruptcy documents
to support this contention.* The only bankruptcy documents in
the record were provided by Appellee and not Appellant. In its
opposition to Appellant’ s HRCP Rule 60(b) motion, Appellee
submitted bankruptcy documents that indicate Appellant elected to
exempt and intended to reaffirm the subject mortgage. However,
Appellant failed to point out the relevance of the bankruptcy
documents to her claim of standing, either (1) in her own HRCP
Rule 60(b) motion papers, (2) at the motion’s July 19, 2002
hearing, or (3) in later filings and motions to the court. In
“Appellant last argued that she intended to exenpt from bankruptcy
and reaffirm the subject mortgage st the October 3, 2001 summary Judgment
Rearing. Appellant does not advance this argument either in subsequent
motions to the court or on appeal
© Appellee submits that it filed these bankruptcy docunents merely
‘to show that Appellant had been discharged “from all dischargeable debts” on
January 6, 1999." In its opposition papers, Appellee argued that “although
TAppeliant) indicated an intention in [ner] bankruptcy documents to ‘reafficn’
the subject loan, (she) never properly documented any reaffirmation pursuant
Eo vbankzuptcy rules, thus nullitying the intention.” See in re Kamps, 217
R836, 840-842 (Bankr. C.0. Cal. 1998) (holding that the Bankruptcy Coc
Syeaftimnation rules are intended to protect debtors from compromising their
fresh start by making unwise agreements to repay dischargesble debts{,)” and
therefore, reaffirmation agreements are binding only Lf made in compliance
With the lengthy and substantial requirements set forth in (11 U.S.c.] §
S2e(e) and (a)
3
‘**¢NOT FOR PUBLICATION
Light of the record, Appellant failed to establish standing to
assert a right of rescission. ‘Thus, the court below did not
abuse its discretion and properly held that Appellant lacked
standing to raise her TILA defense.”
In her fifth and final argument, Appellant maintains
that the TILA violations rendered her mortgage unenforceable and
void as a matter of federal law, and therefore, the court's
granting of summary judgment was “clearly in excess of its
subject matter enforcement jurisdiction until the underlying
merits of that TILA issue could be determined." Appellant posits
that, under 15 U.S.C. 1635(b),"" if a borrower cancels a secured
Inasmuch ag the court was correct in determining that Appellant
did not have standing to raise a TILA defense, her argument that pursuant to
tera) Cr 3¢ Hawai 213, 223-25, 11,
Prsd-1, 11-3 (2000), federal law allows her to defensively assert a right of
rescission within three years of making the loan if a lender does not deliver
two mandatory “notices of right te cancel” to a borrower, need not be
Addressed. The discussion on standing also disposes of Appellant's arguments
on the merite of her THA claim.
% 15 0,8.c, 1635(b) (2997) states:
(b) Return of money or property following rescission.
‘under
subsection (a) of this section, he ia not liable for any
finance of other charge, and
She_abligas, inciuding any such inte
Spezation of Law,
Witnin 20 days after receipe of notice of Fesciasion, the
Creditor shall return to the obligor any money or property
Given as earnest money, dompaynent, or otherwise, and shall
Fake any action necessary of appropriate to reflect the
termination of any security interest created under the
transaction.
‘obligor, the ebiigse may Fe
he performance of the crediter-s oblications under this
‘ection. “the obligor shall tender the property to the
Exsditor, except that if return of the property in kind
Would be impracticable or inequitable, the obligor shall
fender its reasonable value. Tender shall be made at the
Location of the property or at the residence of the obligor,
atthe option of the obliger. If the creditor does not take
possession of the property within 20 days after tender by
the obligor, ownership of the property vests in the obligor
without obligation on his part to pay for it. The
Procedures prescribed by this subsection shail apply except
hen otherwise ordered ty 2 court.
arising By
14
‘**eNOT FOR PUBLICATION***
a
loan transaction, then the underlying security interest is to be
considered void by operation of federal law, preempting state
court enforcement under the Supremacy and Interstate Commerce
Clauses. It does not appear that 15 U.S.C. 1635(b) expressly
supports Appellant's assertion. In any event, as stated supra,
Appellant did not establish standing to raise the TILA defense.
Further, Appellant places great emphasis on the court
not having "subject matter enforcement jurisdiction," but does
not clearly define or substantiate it. Although Appellant cites
to a number of cases, she fails to provide any discernible
argument as to the applicability of the term “subject matter
enforcement jurisdiction.” See Wisconsin v. Pettit, 492 N.W.2d
633, 642 (Wis. Ct. App. 1992) (declining to address portions of a
brief “so lacking in organization and substance that for [the
court] to decide (the] issues, [it] would first have to develop
them{,] . . - [and] serve as both advocate and judge”).
Moreover, Appellee asserts that the court did have proper
jurisdiction. See Citicorp Mortgage, Inc, v. Bartolome, 94
Hawai'i 422, 434, 16 P.3d 827, 939 (App. 2000) (holding that a
determination under TILA that a note and mortgage were void and
unenforceable "would not oust personal or subject matter
jurisdiction"). Therefore,
In accordance with HRAP Rule 35, after carefully
reviewing the record and the briefs submitted by the parties, and
duly considering and analyzing the law relevant to the arguments
and issues raised by the parties,
IT IS HEREBY ORDERED that the court's November 4, 2002
order denying Appellant's HRCP Rule 59(e) motion to reconsider
(Bxphases added.)
as
‘+##NOT FOR PUBLICATIONS**
the August 29, 2002 order denying Appellant’s HRCP Rule 60(b)
motion is affirmed.
DATED: Honolulu, Hawai'i, August 17, 2005.
on the briefs:
cacy Victor Dubin for Gyn
Robert E. Chapman and Lea Ahonuro~
Mavy harcin tbeanton
UH Gepeen Ceumpton Neste Coates mee
Iwamura) for plaintiff-
16
|
20c4c238-66b9-448a-91f0-c5c05d3b7b59 | Schilleci v. Administrative Director of the Courts | hawaii | Hawaii Supreme Court | ‘***NOT FOR PUBLICATION*#*
No. 26323
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
FRANK D, SCHILLECI, Petitioner-Appellant
nay
ADMINISTRATIVE DIRECTOR OF THE COURTS,
SATE OF HAWAT'I, Respondent Appellee’ 3)
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. JRO3-0033)
SUMMARY DISPOSITION ORDER
C.J-, Levinson, Nakayama,
(By: Moon,
‘Acoba, and Duffy, JJ.)
Petitioner-Appellant Frank D. Schilleci (Schilleci)
appeals the Decenber 23, 2003 judgment of the District Court of
the First Circuit, Honolulu Division’ (the court), affirming the
administrative revocation of Schilleci’s driver's License by
Respondent-Appellee Administrative Director of the Courts, State
of Hawai'i (Respondent). Schilleci also challenges the court's
Findings of Fact (findings) and Conclusions of Law (conclusions)
filed on December 23, 2003.
On appeal, Schilleci essentially argues that (1) the
court erred in holding that Schilleci’s state and federal
constitutional rights to a public hearing were not violated with
respect to (a) restrictions on public access to his hearing
before the Administrative Drivers License Revocation Office
+ the Honorable Clarence Pacsrro presided.
NOT FOR PUBLICATION*#*
{ADLRO), (b) his right to a hearing on the validity of those
restrictions, (c) his right to challenge the validity on those
restrictions on behalf of the public, and (d) the State’s failure
to justify the restrictions on the ADLRO hearings; (2) the court
erred in ruling that Schilleci had not been denied due process of
law based on (a) a seeming contradiction in HRS § 2916-38 (a)
which declares the revocation hearing will “review the
[administrative review) decision” yet allows motorists to call
witnesses and offer evidence, suggesting that the hearing is de
nove, (b) the lack of a uniform hearing procedure, (c) the
admission of Respondent's entire file, (d) Respondent’s adherence
to Desmond v. Admin Dir. of the Courts, 91 Hawai'i 212, 220, 982
P.2d 346, 354 (App. 1998) (hereinafter, “Desmond 1”) (holding
that hearing officers should inform the parties of the procedures
at the beginning of the hearing), xev'd on other grounds, 90
Hawai'i 301, 978 P.2d 739 (1999), and (e) the apparent disregard
of the procedure set forth in HRS chapter 2918, Part III, which,
according to Schilleci, requires 2 valid chemical test result or
refusal to confer jurisdiction on Respondent; (3) the court
erroneously upheld the revocation because Honolulu Police
Department (HPD) form 396B (a) informed Schilleci that operating
a vehicle on a public street meant that he had consented to a
blood or breath test, but failed to tell him he had a right to
withdraw that consent, (b) implied that the only issue in an
administrative revocation is whether a test is over .08 or is
refused, and (c) failed to inform Schilleci that the word
2
‘***NOT FOR PUBLICATION®#*
vehicle” includes a “vessel” and “moped; (4) the court erred in
holding that HRS § 2926-34 (a) (2) was not violated in view of the
fact that HPD form 3968 does not adequately explain the
distinction between administrative revocation and criminal
suspension; and (5) Respondent reversibly erred in citing to
unpublished district court decisions to justify the hearing
officer's decision.
Schilleci"'s arguments have been raised before and have
been disposed of contrary to his position. As to arguments
(2) (a) and (1) (4), a majority of this court has held that the
State did justify its restrictions on public access to the
hearings and that these restrictions comported with due process.
See Freitas v. Admin, Dir, of the Courts, No. 25323, slip op. at
8 (duly 25, 2005) (hereinafter, “Exeitas II”]. As to argument
(2) (b), we hold there is no reason to conduct another hearing on
the validity of the hearing restrictions when the facts of the
case are nearly identical. See Dunaway v. .of the
Courts, No. 26616, slip op. at 10 (July 29, 2005). As to
argument (1)(c), we hold that Schilleci has no standing to
challenge the restrictions on behalf of the public. See Freitas
y 12 Courts, 104 Hawai'i 483, 486, 92 P.3d. 993,
996 (2004) (hereinafter, “Exeitas I”). As to argument (2) (2) and
(2) (b), we hold that there is no contradiction in HRS § 2918-38
and that the hearing procedure comports with due process. See
Exeitas Il, slip op. at 22-24.
NOT FOR PUBLICATION***
Ag to argument (2) (c), we hold that the hearing officer
did not err. With respect to Schilleci’s objections to certain
reports, although Schilleci lists the objections made at the
ction of his opening brief, he does not
hearings in the facts
raise points about the specific documents in the argument section
of the brief. “Inasmuch as Defendant ‘presents no discernable
argument in support of this contention{,] . . . it is our
prerogative to disregard this claim.’” State v. Bui, 104 Hawai'i
462, 464 n.2, 92 P.3d 471, 473 m.2 (2004) (quoting State vs
Moore, 82 Hawai'i 202, 206, 921 P.2d 122, 126 (1996)). In any
event, the hearing officer “separately” concluded without
consideration of the preliminary alcohol screening test result,
the intoxilyzer report, and the standardized field sobriety tests
objected to by Schilleci that, based on the remainder of the
record, Schilleci was operating a vehicle under the influence of
an intoxicant (OUI). See Spock v. Admin, Dir. of the Courts, 96
Hawai'i 190, 193, 29 P.3d 380, 383 (2001) (upholding license
revocation despite suppression of breath test results based upon
the hearing officer's separate findings of being under the
influence) .
5, 6B,
The “further findings of fact” nos. 1, 2
and 10 and finding of fact no, 5 and the conclusions of law nos.
5 and 6 made by the hearing officer were supported by sworn
statements with respect to the matters following. See Castro vw.
Admin, Dir, of the Courts, 97 Hawai'i 463, 470-71, 40 P.3d 865,
872-73 (2002); Spock, 96 Hawai'i at 193, 29 P.3d at 383.
‘s#eNOT FOR PUBLICATION***
ee
officer Sean Nahina observed Schilleci speeding and traveling
over the lane markings in the right lane for about fifteen feet
without signaling. Officers Nehina and Lance Yashiro indicated
that they noticed a strong odor of an alcoholic type beverage
coning fron Schilleci’s breath as he spoke, that Schilleci’s eyes
were red, glassy, watery and bloodshot and that Schilleci’s
speech was slurred. Officer Yashiro also observed that Schillect
“swayed back and forth.” Transporting officer Buanventura
Claunan corroborated that he “observed Schilleci to have red
glassy eyes and . . . detected a strong odor xesembling an
alconolic beverage emitting from his [Schilleci’s) breath as 1
spoke to him from about 2 [feet] away.” Such matters constituted
an alternative independent basis for sustaining the hearing
officer's determination of OUI. See Castxo, 97 Hawai'i at 470-
71, 40 P.3d at 872-73; Spock, 96 Hawai'i at 193, 29 P.3d at 383.
as to argument (2) (d), we decline to overrule Desmond
L. Seo Eraitas IL, slip op. at 22-24, As to argument (2) (e), we
hold the notice of the implied consent law is not a
jurisdictional prerequisite to a license revocation hearing. See
Ad. at 28, As to argument (3) (a), we hold that HED form 3963 did
Inform Schillect of his right to withdraw consent to a breath or
blood alcohol test. See Dunaway, slip op. at 14-17. As to
argument (3) (b), we hold that the police need only provide
statutorily-mandated warnings. See id. at 17-19. As to argunent
(3) (c), we held that HPD form 3968 did put Schilleci on notice
that the term “vehicle” includes “moped” and “water vessel.” See
5
‘**ANOT FOR PUBLICATION®#*
Ad at 19-20. As to argunent (4), we hold the notice of
administrative revocation does explain the distinction between
administrative revocation and criminal suspension. See id. at
20-21. As to argument (5), we held that @ lower court decision
will be reversed only if the legal result adopted by the lower
court is found to be erroneous as a matter of law. Soe Freitas
LL, slip op. at 29. Therefore,
I? IS HEREBY ORDERED that the court’s judgment filed on
December 23, 2003, from which the appeal is taken, is affirmed.
DATEI
Honolulu, Hawai'i, July 29, 2005.
on the briefs:
Earle A. Partington D
(Partington & Foley),
for Petitioner-Appeliant.. Blea Paria —
Girard D. Lau, Sees Guar
Deputy Attorney General,
for Respondent-Appellee.
|
c3480a7e-4ea7-4810-bd9d-b8e407ca39c4 | Office of Disciplinary Counsel v. Kugiya | hawaii | Hawaii Supreme Court |
No. 24948
IN THE SUPREME COURT OF THE STATE OF HAWAl
OFFICE OF DISCIPLINARY COUNSEL, Petitioner
~
Sid 91 SNPS
NEAL J. KUGIYA, Respondent
In Re Application for Reinstatement of
NEAL J. KUGIYA, Petitioner
(0pc 99-268-6098)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the record and the Disciplinary
Board’s Report and Recommendation for the Reinstatement of Neal
J. Kugiya to the Practice of Law in this jurisdiction, it appears
that Petitioner Kugiya has proven, by clear and convincing
evidence, his rehabilitation, fitness to practice lew,
competence, compliance with all applicable disciplinary orders
and rules, and compliance with other requirements imposed by the
court, as required by Rule 2.17(d) of the Rules of the Suprene
Court of the State of Hawai'i, and should be reinstated to the
practice of law. Therefore,
TT TS HEREBY ORDERED that Petitioner Neal J. Kugiya’s
Petition for Reinstatement is granted and Petitioner Kugiya is
Teinstated to the practice of law in this jurisdiction.
aaa
IT IS FURTHER ORDERED that upon payment of all required
dues and registration fees, the Clerk shall restore Petitioner
Neal J. Kugiya to the roll of attorneys eligible to practice in
the state of Hawai'i.
DATED: Honolulu, Hawai'i, August 16, 2005.
|
00a3901b-7bab-4e7a-9ed0-8d0c7d1123ce | Dunaway v. Administrative Director of the Courts | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAI'T
n--000-==
2 TA sale
qa
RICHARD J. DUNAWAY, Petitioner-Appellant
sian
LO: id
ADMINISTRATIVE DIRECTOR OF THE COURTS,
STATE OF HAWAT'T, Respondent-Appellee
No, 26616
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. JR 04-0005; ORIGINAL CASE NO. 04-00532)
‘ORDER OF CORRECTION
(By: Acoba, J.)
Upon review of the Opinion filed in this case on
July 29, 2005, it appears that there is an error in the filing
date of Freitas v, Admin, Dir, of the Courts, No. 25323 (Freitas
LL). Therefore,
IT 18 HEREBY ORDERED that the filing date of Freitas
LL, reflected on the second line from the top of page 2 of the
opinion, is corrected from July 22, 2005 to July 25, 2005.
IT IS FURTHER ORDERED that the clerk of the court is
directed to incorporate the foregoing change in the original
opinion and take all necessary steps to notify the publishing
agencies of this change.
DATED: Honolulu, Hawai
1 duly 23, 2005.
row Justice
|
80b0554a-f322-4638-ae8d-6102c2ad31ec | Botelho v. State | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 27130
IN THE SUPREME COURT OF THE STATE OF HAWAT'T | %
= OW SOOZ
ROONEY WESLEY BOTELHO, Plaintiff-Appellee,
Lg ik
JUDY ANN HARTEY, Defendant~Appellant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(fed NO. 011-2614)
(ay: Nakayama, doy S98 he court!)
Open review of the record, it appears that this court
informed Appellant by letter dated June 9, 2005 that the tine for
filing the opening brief expired on May 28, 2005 and that,
puravant to Rule 30 of the Havai't Rules of Appellate Procedure,
the natter would be called to the attention of the court for such
action as the court deened proper including dismissal of the
appeal. Appellant having failed to respond to said letter or to
otherwise oppose dismissal,
Tf 15 HEREBY ORDERED that the appeal is disnissed.
DATED: Honolulu, Havas's, Auguat 4, 2005,
FoR THE COURT:
Busan CE ES
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
aa
|
1e9f272a-312d-41e1-a306-d0e2cf1607fc | Abordo v. State | hawaii | Hawaii Supreme Court | No. 27436
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
EDMUND M. ABORDO, Petitioner-Appellant -
STATE OF HAWAI'I, Respondent-Appellee
Sse
APPEAL FROM THE FIRST CIRCUIT COURT
(S.P.P. NO. 05-1-0044)
‘ORDER
(By: Duffy, J.)
upon consideration of Petitioner-Appellant Edmund A.
Abordo’'s motion for dismissal pursuant to HRAP Rule 42, the
papers in support, and the records and files herein, it appears
that: (1) the record on appeal has not been docketed: (2) if a
record on appeal has not been docketed, HRAP Rule 42(a) requires
the appellant to file any motion to dismiss the appeal in the
and (3) upon entry of a dismissal order, the
jed ror
court app.
appellant must file a copy of the dismissal order with the clerk
of the supreme court. Therefore,
IT IS HEREBY ORDERED that the motion to dismiss is
denied without prejudice to Appellant filing the motion to
dismiss in the court appealed from as required by HRAP
Rule 42(a).
DATED: Honolulu, Hawai'i, August 24, 2005.
Edmund M. Abordo,
petitioner-appeliant, Cann e.rucgy th +
pro se, on the motion Associate Justice
|
bcecdc04-847e-4a29-a729-bfc98e34996c | State v. Gonsalves. Concurring Opinion by J. Acoba, with whom J. Duffy joins [pdf]. S.Ct. Order of Correction, filed 09/09/2005 [pdf]. | hawaii | Hawaii Supreme Court |
‘*#* FOR PUBLICATION *#*
IN THE SUPREME COURT OF THE STATE OF HAWAT'T. | &
ee OG
STATE OF HAWAI'I, Plaintifs-Appellee,
RICHARD GONSALVES, Defendant-Appellant
SS
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 0441-004)
No. 27078
SEPTEMBER 9, 2005
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ. AND ACOBA, J.,
CONCURRING SEPARATELY, WITH WHOM DUFFY, J., JOINS
QRINION OF THE COURT BY LEVINSON, J.
The defendant-appellant Richard Gonsalves appeals from
the judgment of the circuit court of the first circuit, the
Honorable Virginia L. Crandall presiding, convicting him of and
sentencing hin for the offense of promoting a dangerous drug in
the second degree, in violation of Hawai'i Revised Statutes (HRS)
$ 712-1242 (1) (c) (1993 & Supp. 2003).* On appeal, Gonsalves
HRS § 712-1242 provided in relevant part
1) A person commits the offense of promoting a dangerous
drug in the Second degree if the person knowingly!
ibutes any dangerous drug in any amount.
chetanding any law to the contrary, except. for
ndera sentenced under section 106-622-5, if the
f promoting = dangerous sruz in the
‘section involved the possession or
‘4+ FOR PUBLICATION ***
argues that the circuit court erred (1) by excusing the jury for
the day rather than receiving the jury’s non-verdict following
the jury's communication to the court, which stated that it was
sunable to reach a unanimous decision” and (2) by sentencing him
as a repeat offender to a mandatory minimum term of imprisonment
of three years and four months “without submitting the issue of
whether [he] qualifies as [a] repeat offender to a jury” to be
proven beyond a reasonable doubt, in contravention of the United
States Supreme Court's decisions in Apprendi v. New Jersey, 530
u.s. 466 (2000), and Blakely v, Washington, 542 U.S. 296 (2004).
I. BACKGROUND
on January 5, 2004, Gonsalves was charged by complaint
with promoting a dangerous drug in the second degree, in
violation of HRS § 712-1242(1)(c), see supra note 1.
the circuit court conducted a jury trial that commenced
on September 29, 2004 and concluded on October 8, 2004.
At 1:15 p.m. on October 6, 2004, during the first day
of jury deliberations, the jury foreperson sent communication No.
3 to the circuit court. The communication read, “What is the
procedure for returning a non-verdict?” The circuit court
ss scontinued)
Gistribution of methamphetamine, or any of te
Seles of isomers, the person shall be sentenced to an
[hdeterninate term of imprisonment of Een y
ength of watch shall
for than five years, at the
EELEEEIG."GF TRC" Sentencing Gourt. The person’ convicted shall
Sete eiiginie for parole during che mandatory period of
imprisonment
the Legislature amended HRS $ 712-1242 by, inter alia,
effective ouly 1, 2004
‘See 2004 Haw. Sees. L. Act 44, 5 6 at 212
deleting eubsection (3).
2
‘+** FOR PUBLICATION ***
responded, “You may advise the court by written communication if
you are not able to reach a verdict.” At 2:00 p.m. that same
day, the jury sent communication No. 4, which stated, “We are
unable to reach a unanimous decision.” The circuit court
responded, “You are excused for today. Return tomorrow at 9:00
a.m.” Gonsalves objected to the circuit court’s responses to the
jury's communication No. 4 as follows:
[DEFENSE COUNSEL): Defense objection was that they
should be allowed ~~ because they indicated that they were
Gnable to reach a unanimous decision, the court should have
Feconvened and taken their decision. I also informed the
Glezt’Sf"tne court that reserving my objection to the court
Sending then home for the day, I proposed an alternative
Uhsteueelon to the jury or response to the Juryly] whLeh
ies, "Would additional tine deliberating aeeist you in your
Seliberstions?”
‘and i believe then over that objection, the court sent
‘them hone, Again, . they should have been asked would
Aduitional time ateiet them Before they were sent hone
Because if they responded that no, additional tine would not
assist then, then the court should have reconvened and taken
their decision.
The jury did not deliberate on October 7, 2004. At
9:30 a.m. on October 8, 2004, the jury sent communication No. 5,
which stated, “We are submitting a non-verdict.” The circuit
court responded, “Would additional time deliberating assist you
in your deliberations?” At 2:10 p.m., the jury sent
communication No. 6, which stated, “Can you elaborate or explain
in layman’s terms element #2 on page 25 of the instructions.”
‘The circuit court responded, “Words are to be given their common
and ordinary meaning.” At 2:58 p.m. that same day, the jury
announced that it had reached a unanimous verdict. The jury
found Gonsalves guilty as charged of promoting a dangerous drug
in the second degree.
FOR PUBLICATION *#*
on December 1, 2004, the State of Hawai'i (hereinafter,
“the prosecution] filed a motion for consecutive term
sentencing, which sought to revoke Gonsalves’s probation with
respect to prior convictions in Cr. Nos. 0-1-0406, 99-0200, and
98-2519 and resentence him to terns of imprisonment that would
run consecutively to the term of imprisonment imposed in Cr. No.
04-1-0004.? That same day, the prosecution also filed a motion
+ the prosecution, in its menorandun in support of its motions for
consecutive and Fepest offender sentencing, stated
The Supreme Court of Hawail"]i recently addressed the
‘seeue by examining extended cerm sentencing
peereadARbecative sentencing. in State v, Bivera, (106 Hawas's
46, 102 P38 10t¢ (2004),] the court found that an extended term
Se imprisonment say be properly imposed without additional jury
findings, av long a2 the extended term does not exceed thet of an
applicable consecutive tern.
Bad the cirevit court sentenced Rivera to consecutive
1s of imprisonment in Counte I and IZ, the effect would
ir indeterminate maxiaun term of
Inpriscnment, 2 term equal to the two concurrent ten-year
extended terme of imprisonsent that the circuit court
Sctually ispesed in this case... It defies logic that
the circuit court could, consistent with Blakely,
[egitinstely inpose the sane ten-year sentence, comprised of
the consecutive five-year indeterminate maximun terms, under
Stainery sentencing principles, but run afoul of Blakely by
Gmposing concurrene Pen-yesr extended terns of imprisonment
bared on the finding of prior or multiple concurrent
{106 nowai'i at 168, 202 P.3 at 1062 (omphases in original).)
‘the foregoing statenent by the prosecution is false. Rivera held that
Hawaii's extended term sentencing schere does not contravene Blakely,
Nevertheless, aivera in ne way stande for the proposition that an extended
term of inprisonnent may be inposed "as long as it does not exceed that of an
applicable consecutive term.” Moreover, the prosecution seems to ignore the
Possibility that an extended term of imprisonment may, in some cases, be
Qaposea in’ connection with a single count and consecutive terms can gnly be
{necked if Squltipie terme of imprisonment are imposed on a defendent st the
bane tinel.J" HRS § 706-668.6 (1993). To clarity, the Rivera majority
Siscussed the reletionship between ARS §§ 706-668. and 706-662, the extended
term sentencing statute, in order to “underscore our point,” Rivera, 106
Howaitt ae 163, 102 P34 at 1061, thst judges have 2 broad ‘range of discretion
Inaentencing matters, including imposing consecutive sentences under certain
Lietunstances enen it’ nay be “necessary for the protection of the public.
‘++ FOR PUBLICATION ***
for sentencing of a repeat offender to a mandatory minimum term
of imprisonment of three years and four months, pursuant to HRS
§ 706-606.5 (1) (a) (441) (1993 6 Supp. 2004).”
on December 17, 2004, Gonsalves filed a memorandum in
opposition to the prosecution’s motions for consecutive and
repeat offender sentencing, arguing that both the “imposition of
‘a consecutive sentence” and “a mandatory minimum sentence upon
[him] pursuant to the repeat offender statute without a finding
by a jury that would support a consecutive sentence violates
[his] Sixth Amendment right to a jury trial and Fourteenth
Amendment right to due process under Apprendi v. New Jersey and
Blakely v. Washinoton.”
On January 13, 2005, the circuit court conducted a
sentencing hearing and a hearing on the prosecution’s motions for
(1) repeat offender sentencing, (2) consecutive term sentencing,
and (3) revocation of probation and resentencing, and (4)
sentencing together with Cr. Nos. 98-2519, 99-0200, and 00-1-
0406. At the hearing, the circuit court took judicial notice of
the records and files in Cr. Nos. 98-2519, 99-0200, and 00-1-
2 ERS § 106-606.5 provides in relevant pact:
(2) Notwithstanding section 706-669 and any other leu to the
ary, any person convictes of murder int
‘A felony’ (oz) any class B felony
Sonviction of price convictions for the following felonies,
{neluding an attempt to commit the sane: murder, murder in the
Hirst or second degree, a clase A felony, 2 class 8 felony, or any
felony conviction of another jurisdiction shall be sentenced toa
mandatory minimum period of igprisonment without possibility of
Parole during such period as follows:
(a) one prior felony conviction
(siL} tinere the instant conviction is for a class 8
felony -- three years, four monthe(.)
5
‘48 FOR PUBLICATION ***
0406. The circuit court noted that Gonsalves was on probation in
Cr. Nos. 98-2519, 99-0200, and 00-1-0406 at the time of his
conviction of promoting a dangerous drug in the second degree in
cr. No. 04-1-0004, such that, pursuant to HRS § 706-625 (Supp.
2003), the court was required to revoke his probation in the
foregoing three criminal numbers for his conviction of a felony.
Gonsalves argued against the imposition of consecutive terms and
sentencing as a repeat offender on the basis that both
contravened the holdings in Apprendi and Blakely.
‘The circuit court granted the prosecution's motion to
sentence Gonsalves as 2 repeat offender and denied the
prosecution’s motion for consecutive term sentencing. The
circuit court resentenced Gonsalves to five-year indeterminate
maximum terms of imprisonment in Cr. Nos. 98-2519, 99-200, and
00-1-406. In Cr. No. 04-1-0004, the circuit court
ntenced
Gonsalves to a ten-year indeterminate maximum term of
imprisonment subject to concurrent mandatory minimum terms of (1)
three years and four months as a repeat offender pursuant to HRS
§ 706-606.5, see supra note 3, and (2) two years and six months
based on the involvement of the substance methamphetamine
pursuant to HRS § 712-1242(3), see supra note 1. The circuit
court ordered all sentences to run concurrently with one another.
«Rs § 106-625(3) provies:
(3) the court shall revoke probation if the defendant hi
inexcusably failed te comply with a substantial requirenent
{posed a:'a condition of the order or has been convicted of @
Helonys The court may revoke the suspension of sentence oF
Erobetion If the defendant has been convicted of another crime
ether than a felony.
appeal.
‘+#* FOR PUBLICATION *#*
on January 21, 2005, Gonsalves timely filed a notice of
Swwmen jury instructions or the omission thereof are
at issue on appeal, ‘the standard of review is whether, wh
ead and considered as 8 whole, the instructions given ore
Prejudicially ineueficient, erroneous, inconsistent, or
Risieading.’* State v, Kinnane, 79 Hawal't «6, 49, 897 P.2d
973, 976 (i995) (quoting State v. Kelekolic, 74 maw. 479,
514415, 849 B24 86, 14 (1993) (citations emitted)].
See alge State v. Hoey, 17 Hawaii 17, 38, 861 P-2d 504, 525
(1590)
Ss(p)zroneous instructions are presumptively harmful
and are a ground for reversal unless St atfirmatively
appears from the record asa whole that the error was not
prejudicial.” “state v. Pinera, 70 Haw. $09, 527, 778 P.2d
504, 116 (1989) - + (quoting Turner v. Millie, $9 Haw
319) 326, 562 P.3¢'7i0, "715 (1978) +
[Elrror ie not to be viewed in
isolation and consisered purely in
the abstract. Tt most be examined
in the Light of the entire
Proceedings and given the effect
Shieh the whole Fecord shows it to
be entitled. In that context, the
Foal question becones whether’ there
isa reasoneble possibility that.
error might have contribated to
Sonviction.
State z Heard, 64 Haw. 193, 194, 638 P.2¢ 307,
308 (1s61) {eltations oniteed)..' Tf there 43
such a reasonable possibility in 4 criminal
Gaze, then the error ie not harmless beyond @
reasonable doubt, and the Judgnent of conviction
on which it may have been based must be set
Seide., See Yates vs Evatt, 500 Urs. 392, 402-03
=. (2951) C)
tite vs welbion, 80 Hawai'i 27, 32, 906 p.24 912,
917, reconsideration denied, 80 Hawai't 187, 307 'P.24 773
(199s} (some citations omitted) (brackets in original)
(emphasis deletes) ; gee also state. loa, €3 Hawai'i 335,
350, 326 P24 1258, 1273 (1996); Staxa vy Robingon, 62
Hawas't 30¢, 310-11, 922 P.24 386, 364705 (193e)
State v. Arceo, 84 Hawai'i 1, 11-12, 928 P.2d 843, 853-54 (1996)
(footnote omitted) .
‘+++ FOR PUBLICATION ***
“(t]he circuit court's response to a jury communication
is the functional equivalent of an instruction.” State v. waili,
103 Hawai'i 69, 101, 79 P.34 1263, 1275 (2003) (quoting State v
Wyesuat, 100 Hawai'i 442, 458, 60 P.3d 843, 859 (2002) (citations
and internal quotation signals onitted)).
B. Sentencing
IA) sentencing judge generally has broad
discretion in inposing @ sentence. . ,
Je Hawai'i 127, 43-44, 090 P-24 1167, 1183-86 (1998)
a feta, 14 Haw. 424, 438, 088 P.2d 376,
=r {1353).."“the applicable standara of review
for sentencing of resentencing matters is whether the
SSurt committed plain ane manifest abuse of discretion
fn its decieion. Gaylord, 78 Hawai'i at 144, 890 2.26
ae iss State y. Kumuway, 72 Haw, 218, 27°28, 787
Pizd 692, 687-98 (1990); State. Murcavl,) 63 Haw.
[br 25; bat poad 334, 342-43 (190); aeate vy Bry, 62
Baw, 206, 231, 602 P-24 13, 16 (1379)
Keaua ve Gtate, 19 Hawas't 261, 284, 902 P.2d dat, 404
WSsey eiFlactore which sndicate a plain and manifest
Abuse of discretion are arbitrary or capricious action by
the Juage and s rigid refusal to consider the defendant’ s
Contentions." Fry, 61 faw. at 231, 602 F.2d at 17. And,
SCigjeneraiiy, to constituce an abuse it must appear that
the dourt clearly exceeded the bounds of reason or
Gisregerded rules or principles of law or practice to the
Substantial detriment’ of a party litigant.'" Keawe, 79
Howai'i at. 266, 901 F.2d at 484 (quoting Gaylord, 78 Hawas's
ae ld, €90 P-2d at T1e¢ (quoting Kumukau, 71 Hew, at
250028, 767 P.2d at 68E))
‘State v. Rauch, 94 Hawai'i 315, 322, 13 P.3d 324, 331 (2000)
(brackets and ellipsis points in original).
C. Questions Of Constitutional Law
ie answer questions of constitutional Law ‘by
exercising cur own independent judgaent based on the facts
Of the care,’* and, thus, questions of constitutional law
Gre reviewed on appeal "onder the ‘right/wrong’ stendard.”
153 Howal't 87, 100, 997 P-2d 13, 26 (2000)
(citations omitted)
State v, Aplaca, 96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001).
‘*** BOR PUBLICATION *#*
IIT. DISCUSSION
wit +s suppl ry Inst Were
Nos Erroneous.
Gonsalves argues that the “trial court should have
reconvened the jury and received its non-verdict on October 6,
2004{,]” following jury communication No. 4, which indicated that
the jury was unable to reach a unanimous verdict.
Gonsalves contends that “[bly forcing the jury to continue to
deliberate for two more days before reaching a verdict {,] the
court denied [him] his right to trial by jury(.1”
Gonealves’s arguments are without merit.
In Allen x, United states, 164 0.8. 492, 17 8.ct. 154,
41 ued, S20 T1850), the United states’ Suprene Court held
that an instruction to's deadlocked jury that directs
Minority Jurors to reconsider their views in light of the
Stews of the majority wae permissible. Subsequently know
Ga the Alan instruction, the instruction beca
Incteastagiy popular bechuse of “its perceived efficiency si
a'neans of ‘blasting’ a verdict out of
Uo "Falards, €? Haw. at 592, 699 Pe2d-at 22 (quoting
hones. Gainer, 19 Cal-3¢ 635, 844, 138 Cal-Rptr. S61,
Bee gee Peta sss, 1001 (1979)), However, this. court
Specifically rejected the se of the Allah instruction in
SEate wv. Falarde, 67 Haw. $93, 699 P.2a 20 (1985)
Ti Eauarse, appellant wae tried for murder. Following
three days cf Jury deliberations, the jury reported that it
ECuId not reach s verdict. Ate conference called to
Siscuse the communication, the court stated its intent to
Give the Jury a supplenental instruction. Appellant
Sbsectes anc asked for s mistrial. the motion was denied.
‘The trial court gave a supplemental instruction to the
jury asking that 1t “continue. = deliberations in an
Gtfere to agree on a verdict.” Additionally, the court
Savised that if a verdict could not be reached,
aN Sputhough the court reminded the
Suess co consult ana deliberate with « view to reaching an
agreenent “uithout tiolsting your individual judgment,” the
Gourt also stated that"
Sn the einorsev should his ws ane
ond that the
shenselnisttanjerity shovid-de iikesise- The court then
Ineetucted the Jury t0 retire to the jury room and “exercise
your very best effort to resch s verdict." Jd, at 594-95,
99 P20 at 21-22 (esphasis in original)
‘#4 FOR PUBLICATION ***
on sppesl, eppellant Fajardo argued that the trial
court errea in giving the Allan instruction to the
Geadlocked jury. We agreed Decause in our view the
instruction was flawed for two reasons. First, whether or
ot a case must be retried ia not a factor that a Jury,
should consider in its deliberations. id. at €00, 699 F.2d
at 2.
Second, it was error for the triel court in Eatardo te
admonish the minority jurors to reconsider heir views in
Light of the opinicn ef the majority Jurors. ey Instructing
then in this vay, the dissenting jurors were required to
Consider not only the evidence presented, but also thelr
position in the minority. We held that this was error. AS
we stated, “A conscientious minority 1s the backbone of oUF
Bnerican way of life, No individual, group or snetitution,
however altruistic its intentions, can set aside the sincere
Convictions of s minority to conform to that of the majority
for the expedience of rendering a unanimous decision.”
at 601, 699 P.24 at 25, Therefore, we have explicitiy
Fejected the Allen instruction and’have held chat it was
error to instruct minority jurors to reconsider their views
In'Tight of the majority in their deliberations.
Eaiarda, 67 Haw. $93, 699 P.2d 20 (1985)
State v. Villeza, 72 Haw. 327, 334-35, 817 P.2d 1054, 1058
991.
In Villeza, this court extended its holding in Fajardo
by further holding that “it was error for the trial court to
instruct the Jury that it must unanimously decide that it was
unable to reach a verdict.” 72 Haw. at 335, 617 P.2d at 1958.
no basis in the
This court stated that “[s]uch an instruction ha
law and, like the Allen instruction, serves only to create a
coercive environment incapable of supporting a meaningful verdict
based solely upon the jury's consideration of the evidence.” 72
Haw. at 335, 817 P.2d at 1058.
In the present matter, the circuit court’s response to
jury communication No. 4, which excused the jury for the day, in
no way mirrored the erroneous instructions in Faiarde and villeza
that were deemed to have “blasted” verdicts out of deadlocked
juries. By contrast, the early dismissal of jurors on the first
10
‘#* FOR PUBLICATION ***
day of deliberations did net “create a coercive environment
incapable of supporting a meaningful verdict based solely upon
the jury's consideration of the evidence.” Villeza, 72 Haw. at
335, 817 P.2d 1058. Therefore, “when read and considered as a
whole, the instructions given” were not “prejudicially
insufficient, erroneous, inconsistent, or misleading,” Kinnane,
79 Hawai'i at 49, 897 P.2d at 976, and the circuit court did not
err in instructing the jury.
B. err ng Gos
Rey ier
Gonsalves argues that the “factual issue of whether
[he] is a repeat offender should have been determined by a jury
and subject [ed] to proof beyond a reasonable doubt.” Gonsalves
avers that “[t)he jury verdict only authorized a sentence ranging
from probation to an indeterminate sentence of ten years” and
that
(alpplication of Haaiits repeat offender statute . . . to
Ain decseased the prescribes range of penalties by
tlintesting the porsibility of probation and requiring the
Eourt to iepose sn indeterminate sentence of ten year(")s
Gmpeisonnent with a mandatory minimum sentence of three
youes and four sontha, without a finding by a jury based
pen proof beyond a reasonable doubt]
(Emphasis added).* Gonsalves insists that the United states
Supreme Court’s decisions in Apprendi and Blakely support his
foregoing contention. Gonsalves is mistaken.
Gonsalves does not raise as error on appeal the circuit court's
imposition of e mandatory minimum tern of isprisonment of two years and six
onthe based on the involvenent of the substance methamphetamine, pursuent to
Bee § 712-124213), ge supra note 1. Effective July 1, 2004, the legislature
anended HRS $ 712-1242 by, Apter alia, deleting subsection (3). See 2004 Haw.
Sess. L. Act 44, § 6 at 2i2
aa
‘#*# FOR PUBLICATION *#*
The rule declared by the United States Supreme Court in
Apprendi was that “[o]ther than the fact of a prior conviction,
any 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.” 530 U.S. at 490, The Court
in Blakely extended the Apprendi rule, explaining that “the
relevant ‘statutory maximum’ is not the maximum sentence a judge
may impose after finding additional facts, but the maximun he may
impose without any additional findings.” 42 U.S. at 302
(emphasis in original) -
In State v, Rivera, 106 Hawai'i 146, 102 P.3d 1044
(2004), thie court analyzed the effect of the Supreme Court's
decisions in Apprendi and Blakely on Hawaii's sentencing scheme:
Blakely focused on the perceived defects of washington
state’= determinate sentencing schene, applying the rule che
Court had previously crafted in Btmands, ie, that
Sfoltner than the fact of « prior conviction, any fact that
increases the penalty for @ orime beyona the prescribed
statutory maximum must be submitted toa jury, and proved
beyond a reasonable doubt.” Aograndl, $30 0.5."at 430)
Thos, the Elakely majority held that e Washington court’s
Sentencing of 2 defendant to nore than three years above the
SStnonth statutory maxinum of the prescribed “standard
Tange” for his offense, on the basis of the sentencing
jusge’s finding that the defendant had acted with deliberate
Eroelty, violated his sixth amendment right to telal by
jury. In our view, the Blakely analysis visca-vis Aoprend:
ie confined to the meaning of the construct “statutory
Raximun” within the context of determinate or “guideline”
Sentencing schenes. inasmuch as Hawaii's extended term
Sentencing structure Jo indeterminate, we believe tha!
Blakely does not affect the “intrinsic-extrinsic” analysis,
that this court articulated in (Stare v Ixaual, 102 Hewai's
1, 72:.36 473 (2003).
"e Blakely majority explained that “the ‘statutory
naxinun’ for Aeprendi purposes is the maximum sentence a
Suage may Sepose.
inthe ‘aapiteed By the de set
Bites a 2537 lenphasis in original). “in cther words, the
Felevant ‘statutory maximun’ Le not che saxinum sentence
Suoge may impose after finding additions) facts, bur the
inarimun he nay impose without any additional facts.” I.
a2
‘+++ FOR PUBLICATION *#*
(emphasis in original). Accordingly, the essential mandate
of Boprendi ~~ ives, that any fact other than a price
Sonviction must be cubnittes tos jury and proved beyond a
Feasonabie soubt =~ is unaffected by the Court's decision in
Eluuely. Blakely can reasonably be construed, then, a5 a
Sloss ch Apgrends, clarifying (1) that the upward Limit of
ny given presumptive sentencing range prescribed ina
Statutory scheme utilizing @ "determinate" sentencing
Sguideline” system constitutes the “statutory maximum” and
(2) that's defendant upon whom a sentence exceeaing this
Setatutory maxinun” is imposed is entitled to all of the
procedural protections thet apptandi articulates:
Rivera, 106 Hawai'i at 156, 102 P.3d at 1054 (emphases in
original) .
By its plain language, the rule in Apprendi, ise., that
“any 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 [,]” excepts from its purview
“the fact of a pricr conviction{.]" $30 U.S. at 490.
The Suprene Court exexpted “prior convictions” from
the auateadl ezuicenencsy"reassnie that, "sith cespect Co
Previous convictions, defendants have already received
the segoisize procedural safeguards. See Auprena, 530'0.5-
at 486, 120 8.€¢, 2340, This reasoning was consistent with
the Suprene Court's earlier decision in Alusndareg-Torres ve
United states, 523 U.8. 224, 118 S.ct. 1218, 140 L.ed.20 350
THSSEy, in stich tne Court held that vecidivisn was a
traditional basis for increasing an offender‘ s senten:
[t]he court said tong ago that a State need not
allege s defendant's prior conviction in the
Undictment or information that alleges the
Glenents of an underlying crime, even though the
Conviction was necessary to bring the case
Sithin the statute
Alnendarez-Torzes, 523 0-8. at 243, 118 S.ct. 1219.
Kaua v. Frank, 350 F.Supp. 848, 856 n. 7 (D. Hawai'i 2004).
Based on the foregoing, Gonsalves’s argument that
somehow the jury’s verdict did not authorize sentencing him to a
mandatory minimun term as a repeat offender is unfounded.
‘Apprendi pronounced a rule regarding the judge-imposed penalties
that increase statutory maximum sentences, not mandatory minimum
a3
‘88 FOR PUBLICATION *#*
sentences, because the judicial factfinding “that give(s] rise to
a mandatory minimum sentence . . . does not expose a defendant to
a punishment greater than otherwise legally prescribed.” Harris
v. United States, 536 U.S. 545, S65 (2002). Prior to
Apprendi, in McMillan v, Pennsvivania, 477 U.S. 79 (1986), the
United States Supreme Court “sustained a statute that increased
the minimum penalty for a crime, though not beyond the statutory
maximum, when the sentencing judge found, by @ preponderance of
the evidence, that the defendant had possessed a firearm.”
Harris, 536 U.S. at $50. Harris then answered the question of
“whether McMillan stands after Apprendi.” Id.
Aeprendite conclusions do not undermine Mestillan's.
‘There was no comparable historical practice of submitting
facts increasing the mandatory minimun to the Jury, a0 the
rule did not extend to those facts. Indeed, the
Gbart sade clear that ics holding did not effect Malian at
aul:
wwe do not overrule McMillan. We limit its
holding to cases that do not involve the
imposition of a sentence more severe than the
Statutory maxinus for the offense established by
the jury's verdict - a limitation Identifies in
the Batiiiian opinion itseif.” 530 U.S. at 487,
B.l3, 120 8.Ctr 2348
The Sentencing factor in Uctlillan dig not increase
the penalty for a azine beyond the prescribed statutory
maximus,” £30 U.S. st €30, 120 $.Ct. 23487 nor did ity
the concurring opinions in Janeai v. United states, 526 0.8
227 (1999),] "pot it, “alter the congressionally prescribed
Tonge of penalties to which a criminal defendant. is
exposed, "526 U.S. at 253, 1198.ct. 1215 (SCALIA, J.»
Goncurring)-. As the aporendi Court observed, the’ Moidillan
Ending merely required the Judge to impose “a specific
Sentence within the range authorized by the jury's finging
thet the defendant (was) guilty.” $30U.8. at 494, 1.33,
120 s.ct. 2348.
Harris, 536 U.S. at 563-64, The Supreme Court further explained:
Whether chosen by the judge or the legislature, the fact
Guiding jusietsl discretion below the statutory maximur need
hot be alleged in the indictment, submitted co the jury, oF
Proved beyond & reasonable doubt, ‘When a judge sentences
Fhe defendant to a mandatory minimum, no less than when the
Judge chooses 2 sentence within the range, the grand and
uu
‘+** FOR PUBLICATION *#*
petit juries already have found all the facts necessary to
Suthorize the Coverfaent to impose the sentence. Zhe iudae,
fay Snnese' the sinisum, che agximum, or any other sentence
fhose luries =-snd without contradicting Avorendt
536 U.S, at 565 (emphases added); see also State v. Tafova, 91
Hawai'i 261, 274 n.18, 982 P.2d 890, 903 n.18 (1999).
‘Thus, based on (1) the plain language of Apprendi and
(2) the Supreme Court’s holding in Harris that Apprendi does not
apply to mandatory minimums, I believe that the circuit court in
the present matter did not offend binding federal precedent in
sentencing Gonsalves to a mandatory minimum term of imprisonment
as a repeat offender. See also United States v, Jones, __ F.3d
__, 2005 WL 1903746 (7th Cir. 2005); United States v. Hitchcock,
286 F.3d 1064 (9th Cir. 2001), amended by 298 F.3d 1021 (9th Cir.
2001) (“It is now clear that mandatory minimums do not implicate
Apprendi.”); United States v, Antonakeas, 255 F.3d 714, 728 n.11
(9th Cir. 2001); United States v, Garcia-Sanchez, 238 F.3d 1200,
1201 (9th Cir. 2000).
IV. CONCLUSTON
Based on the foregoing analysis, we affirm the judgment
and sentence of the circuit court.
on the briefs:
clifford 8. Hunt,
for defendant-sppellant
Richard Gonsalves
Daniel H. Shimizu, Be Rcirrnner—
deputy prosecuting attorney
for the plaintiff-appellee Nsw romeeranen
State of Hawai'i
as
|
c2f6496b-2144-4b36-98b0-16d8f31a9907 | USRP | hawaii | Hawaii Supreme Court | s*¢NoT FOR PUBLICATION***
No. 25040
IW THE SUPRENE COURT OF THE STATE OF HAWAT'ES|S
OSRP (DON), DLC: USRP (GERNIFER), LLCy UsRP (stEvER, LIC
DSR! (SARAH), LECT USRP (BOB), LLC; USRP (FRED), LLC,
aii Texas Limited Liability compénies, Plaintiffs-Appellees
WAHBA, LLC., a Hawai'i Limited corporation; AMGAD B. WAHBA;
‘SNG, LLC, a Hawai'i limited liability company, and
SERVICE STATION SUB-TENANT LOCATED AT 1701 DILLINGHAM
‘BOULEVARD AND SERVICE STATION SUB-TENANT LOCATED AT
215 SOUTH VINEYARD BOULEVARD, Defendants-Appellants
(Nos, 25040, 25041, 25042, 25043,
25044, 25158 25159, 25160, 25161, 25162)
a
APPEALS FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. NOS. 1RCO1-5020; 1RCO1-5056; 1RCO1-S057;
ARCO1-5136; 1RCO1-$1347 1RCO1-5135; 1RCO1~5192
‘{RCO1-5020; RCO1-5022; 1RCO1-5021; 1RCO1-5193)
BOS o1
(By: Moon, C.J., Levinson, Nakayama,
‘Acoba, and Duffy, JJ.)
Defendants-Appellants WAHBA, LLC, Angad B. Wahba, SNG,
Lic, Service Station Sub-Tenant Located at 1701 Dillingham
Boulevard, and Service Station Sub-Tenant Located at 215 South
vineyard Boulevard (collectively Defendants) appeal from the
March 8, 2002, and March 11, 2002 judgments and writs of
possession issued by the district court of the first circuit
court (the district court or the court).' These judgments and
writs resulted from ten summary possession actions that were
consolidated and resolved by a trial before the court. These
1 The Honorable Rhonda A. Nishimura presided over this matter.
oad
‘*eNOT FOR PUBLICATION*#*
judgments were resolved in favor of Plaintiffs-Appellees USRP
(Don), LUC; USRP (Jennifer), LLC? USRP (Steve), LLC: USRP
(Sarah), LLC: USRP (Bob), LLC; and USRP (Fred), LLC
(collectively, Plaintiffs) and ordered that Plaintiffs were
entitled to possession of the disputed premises or service
stations as set forth in each sunmary possession action. we
affirm.
on March 10, 1999, Plaintiff:
lessors, entered into
two master gasoline station convenience store leases (master
leases or leases) with BC Oil Ventures LLC (BC Oi1) for twenty
seven service station locations in Hawai‘. US Restaurant
Properties (USRP) is a real estate investment trust whose
principal business is renting real estate. USRP is restricted
from owning underground storage tanks and earning a certain
amount of revenue from non-rental receipts, i.e. from the sale of
gasoline.
Paragraph 15.1 of the master leases required BC Oil, as
the tenant, to obtain Plaintiffs’ written consent prior to
subletting any of the subject locations to another party for use
as a gasoline station. Paragraph 17.1(c) of the master leases
define “default (,]” inter alia, as “[a] failure by [BC Oil] to
observe and perform any other provision of this Lease to be
observed or performed by [BC Oil], where such failure continues
for thirty (30) days after written notice thereof by [Plaintiffs]
to [BC Oi1].” This failure “constitute[s} a material default and
breach” of the said leases. In the event of any material breach,
2
NOT FOR PUBLICATION*##
the master leases provide Plaintiffs with the right to terminate
the leases under paragraph 17.2. Lastly, paragraph 18.15 of the
master leases include a choice of law provision that states that
the leases “shall be governed by the laws of the State of Texas.”
on or about July 31, 2000, BC Oil filed for Chapter 11
bankruptcy relief (bankruptcy proceedings) in the United States
Bankruptcy Court for the Central District of California
(bankruptcy court). Between Novenber 2000 and January 2001, BC
041 apparently entered into retail facility leases or subleases
(xetail facility leases) with Defendants for nine stations
between BC O11 and Plaintiffs.
covered by the master lea
‘These retail facility leases were negotiated by Hani Baskaron
(Baskaron), a principal of BC O11, Defendant Angad B. Wahba
(wahba), and Riyad Khoury. Paragraph 1 of these retail facility
leases mandate that BC Oil “shall secure the execution . . . of a
Consent, Nondisturbance, and Attornment Agreement” by Plaintiffs.
“consent, Nondisturbance, and Attornment Agreement (s]” are
attached to these retail facility leases, but these agreements
are not signed by Plaintiffs.
on January 22, 2001, BC Oil entered into a retail sales
agreenent for motor fuels (fuel sales agreement) with Defendant
Wahba. BC Oil and Defendant Wahba were the only parties to the
fuel sales agreement as described in the agreement. By this
agreenent, BC Oil agreed to sell Wahba motor fuel refined by ARCO
for resale by Wahba at the station located at 150 North
‘***NOT FOR PUBLICATION®#*
Kamehameha Highway in Wahiawa. The “initial term” of this
agreenent was “for a period of not more than five years.” The
fuel sales agreement also included a provision granting Defendant
Wahba the right to use the ARCO brand in the retail sale of BC
oil's motor fuels.
on May 8, 2001, in the bankruptcy proceedings,
Plaintiffs and 8C O11 entered into a stipulation for, inter alia,
BC Oil “to file a motion with the bankruptcy court to obtain an
order determining that any subleases entered into post-bankruptcy
without the bankruptcy court’s approval was null and void.” On
Jane 26, 2001, the bankruptcy court issued its “Order Approving
Stipulation Between the Debtor, the Official Committee of
and Claims as
Unsecured Creditors and USRP Resolving Disput
Modified.” ‘The bankruptcy court struck the parties’ agreement
that BC O11 would seek the bankruptcy court’s approval that the
subleases were “null and void,” and, instead, stated thai
APlaintites) wil) prosecute (a2 a party plaintitt or
(Plaineiffs) shall nave
nominal party to any such
quest his
the right to name the Trustes as
action, and the Trustee shali have the right to
dismissal as 2 nominal party from any such action.
(Emphasis added.) Additionally, the bankruptcy court approved 8C
Oi1’s rejection of its non-residential real property leases, i.e.
the retail facility leases.
on or about August 3, 2001, Plaintiffs filed the ten
separate summary possession actions underlying this appeal in the
district court to regain possession of the stations located in
Hawai'i. On August 22, 2001, the court consolidated the summary
‘+#9NOT FOR PUBLICATION***
possession actions under Civil No. 1RC01-5020 (consolidated
actions). Trial was conducted on February 7, 21, and 25, 2002.
The court held in favor of Plaintiffs and made the
following oral ruling!
(1) a fuel sales agreement as to the
station located at 150 North Kamehameha Highway was entered into,
but Defendants failed to present any fuel sales agreements as to
the remaining stations in dispute, (2) nondisturbance agreenents
pursuant to the retail facility 1
yes were never executed,
(3) with respect to Defendants’ HRS chapter 486H arguments,
Plaintiffs are not “large petroleum distributors” and no
franchise relationships existed between the Plaintiffs and
Defendants, and (4) the court had “subject-matter jurisdiction
over the matter at hand and possession is proper with the
district court” inasmuch as the case did not pertain to a “long-
term residential lease” as was the case in Queen Emma Found. vs
Tingco, 74 Haw. 294, 845 P.2d 1186 (1992). Accordingly, the
court issued the judgments for possession and writs of possession
in favor of Plaintiffs. On April 8, 2002, Defendants appealed
from the judgments and writs in the ten cases comprising the
consolidated actions.
on appeal, Defendants apparently argue that (1) the
court “erred in failing to find that Plaintiffs gave its express
or implied consent to the [retail facility leases) to
[Defendants], and should be estopped from attempting to terminate
the [retail facility leases} by asserting lack of consent or lack
‘**sNOT FOR PUBLICATION*#*
of an executed attornment agreenent;” (2) the court “misconstrued
the effect of the rejection of a lease in Bankruptcy, such that
the rejection of the Master Lease(s] in the BC Oi] Bankruptcy
proceeding does not automatically terminate the sublease for
1s any of the affected service stations;” (3) the court. erred
An “finding that @ ‘franchise’ as the term is defined in [HRS]
chapter 486% . . . did not exist, such that protections afforded
to [Defendants] in (HRS) chapter 486H . . . did not apply”
(4) the court “erred in failing to find that the relationship
with (Plaintiffs) and BC O11 were joint venturers, such that
[Plaintiffs] assumed the obligations of BC O11 under the [retail
facklity leases] when [Plaintiffs] took over the service
station(s]* (5) the court “erred in failing to recognize that
= [1t] did not have jurisdiction” because this case involves
substantial “long-term” property “rights” in the form of
franchises pursuant to HRS $$ 486H-2, 486H-3, and 486H-10.5, and
must be tried before the circuit court in accordance with Tingso,
74 Haw. at 3047 and (6) Plaintiffs “did not comply with notice
requizenents for . . . termination of franchises [pursuant to ERS
§ 486H-3), and thus, the terminations are . . . invalid.”
As to Defendants’ first argument on appeal, Defendants
contend that “Plaintiffs gave its express or implied consent” to
the retail facility leases to Defendants, and therefore, are
“estopped” from “terminat[ing]” these leases “by asserting lack
of consent or lack of an executed attornment agreement.” As
‘s#sNOT FOR PUBLICATION***
ee
subpoints to this argument, Defendants maintain that (a) attorney
Richard Wilensky (Wilensky), as Plaintiffs’ agent, either
8 or had
‘expressly consented to the retail facility le
knowledge of the retail facility leases and impliedly approved
them by words or conduct; (b) “a landlord may be estopped? from
asserting lack of consent as grounds for termination of a le
citing Aickin v. Ocean View Inv, Co., 84 Haw. 447, 935 P.2d 992
(1997); (c) “if [Plaintiffs] are estopped from asserting lack of
consent to the subleases, the failure to have an attornment
agreement is not fatal to (Defendants’] tenancy,” citing Aickins
(a) Plaintiffs “could not reasonably withhold consent to the
[slubleases,” citing Brestin v, Mobil Co, of California, 741 F.2d
268 (9% Cir. 1984), and Cohen v, Ratinotf, 47 Cal. App. 3d 322
(1983), and “did not have a good faith basis for refusing
consent,” citing Best Place, Inc. v. Penn America Ins. Cou, 82
Hawai'i 120, 920 P.2d 33 (1996), in light of the special
relationship of franchisor-franchisee which allegedly existed
between Plaintiffs and Defendants;? and (e) “an absolute
2 As to subpoints (b) and (c) of Defendants’ first argument, in
defendants’ opening and reply briefs, Cefendants opine as to conduct by
Pleintsfis that would “estop(] (Plaintiffs) from asserting lack of consent”
fand “terminating the (retail facility leases)." Defendants fail to cite to
the record to support these factual assertions. Insofar as Defendants do not
Comply with Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b) (7)_ to
provide "citations > parts of the record relied on,” Defendants do not
Provide discernible factual arguments in support of subpoints (b) end (c) and
Tela not necessary to addresa these arguments, ggg HRAP Rule 28(b) (7) ("Points
ot argued say be deemed waived.”)
2 As to subpoint (d) of Defendants’ firet argunent thet Plaintiffs
could not “reasonably” or in “good faith” "refus(e) consent” to the retail
fociiity teases, to rhe extent that this subpoint relies on the existence of
ARS § 426#-1 franchises between Plaintiffs and Defendants and such franchises
Go not exist, es discussed infra, it 1s not necessary to address subpoint (d)
7
NOT FOR PUBLICATION*##
prohibition on assignment and subletting as [Plaintiffs] urge(]
in this case is an unreasonable restraint on alienation,” citing
Pacific Trust Co, v, Nagamori, 32 Haw. 323, 330 (1932).*
As to Defendants’ first argument on appeal related to
that Wilensky expressly consented to the
Defendants’ subpoint (a!
retail facility leases, under the plain and unambiguous language
of the master leases, BC O11 did not comply with the requirement
that it obtain written consent from Plaintiffs prior to
subletting the properties to Defendants. This failure to obtain
prior written consent from Plaintiffs (1) constituted a “material
breach” of the master leases under paragraph 17.1(c) of the
master leases and (2) enabled Plaintiffs to “terminate” the
master leases and “recover possession” of the disputed stations
from Defendants who claimed possession “through or under BC 041”
under paragraph 17.2 of the master leases.
Additionally as to Defendants’ subpoint (a), the
evidence is unclear as to whether Wilensky ever orally or
+ as to subpoint (0) of Defendants’ first argunent, Defendants
simply assert in their opening Brief that it is ‘well establiahed that an
absolute prohibition on assignment and subletting as (Plaintiffs) urge{] in
{his case is an unreasonable restraint on alienation.” Defendants cite to
Encific Trust for "the rule that restrictions on transfer through requirements
of written consent to certsin eransfers were void.” D
Felevant part, from Pacific Trust, that "[iJt was expressly provided in the
Instrument thet its terms were binding on the heirs executors, administrators
and permitted assigns of each parties. Such an attempted restraint on
alienation violates the rules Sgainst perpetuities which is law in this
Jurisdiction, and is vold.” Based on this argunent, it 18 unclear how the
Fequirenent in the master leases of written consent fron Plaintiffs for
gubleases of the disputed stations constitutes an “absolute prohibition” or an
SGnressonable restraint on siienation” and akin to a provision "binding on
. «permitted assigns” that “violates the rules against perpetuities.”
linere, as here, Defendants do not provide a discernible legal argument for
their position, such argunent need not be addressed. Seq #RAP Rule
28(b) (7) ("Points not argued may be deened waived.”)
‘##8NOT FOR PUBLICATION®*:
Sse
9 to the extent that he and
impliedly consented to such le
Plaintiffs acknowledged and consented to the fact that Defendants
were lessees pursuant to the master leases. At trial, Wilensky
testified that he never consented, either orally or in writing,
to the retail facility leases. In contrast to Wilensky’s
testimony, Hani Baskaron, a principal of BC Oil, testified on
direct examination to a conversation with Wilensky in which
Wilensky allegedly approved of the retail facility leases.
Wilensky’s and Baskaron’s statements demonstrate that
the court heard conflicting testimony by different witnesses as
to whether Wilensky ever orally or impliedly consented to the
retail facility leases. This court has “long observed that it is
within the province of the trier of fact to weigh the evidence
and to assess the credibility of the witnesses, and this court
will refrain from interfering in those determinations.” LeMav v.
Leander, 92 Hawai'i 614, 626, 994 P.2d 546, 558 (2000). Given
that there was evidence from which the court could determine
there was no oral or implied consent to the execution of the
retail facility leases by Wilensky, acting on behalf of
Plaintiffs, this court will not “interfer[e]” with the trial
court’s “determination.” Id.
‘As to Defendants’ second argument on appeal that the
court “misconstrued the effect of the rejection of a lease,”
yes] in
Defendants contend that “the rejection of the master 1
the BC O{1 bankruptcy proceeding does not automatically terminate
the sublease for . . . any of the affected service stations” but
8
‘+#aNOT FOR PUBLICATION*#*
ee
, citing Ine
constitutes a “simple breach” of the master lea:
Texas Health Enterprises, Inc., 255 B.R. 181 (Bkrtcy. E.0. Tex.
2000), In re Storage Technology Corp., 53 B.R. 471 (Bkrtcy. Colo.
1985), and Collier on Bankruptcy (Rel. 55-8/95), § 365.08 at 364-
65). As subpoints to this argument, Defendants also maintain
that: (a) Plaintiffs never “ma(de] any effort to terminate the
Imjaster (1lease(s]” and did “not obtain{) a termination of the
Imlaster [LJease(s) in the instant proceeding"; (b) “there is no
independent basis for termination” inasmuch as “the lack of
consent . . . has been shown to [be] an improper or insufficient
ground for termination”; and (c) Plaintiffs are “precluded from
terminating the (master [1Jease[(s] or subleases” because of the
existence of a “special relationship” between Plaintiffs and
Defendants such that Defendants have “vested franchise rights”
that are protected under HRS chapter 486H. Inasmuch as the court
did not render its judgment based on any construction of the
bankruptcy court's alleged rejection and termination of the
master leases or retail facility leases,’ and the Defendants’
* on August 23, 2001, Defendants filed a motion to disniss the
complaint af to the cons¢lidated actions. Defendants asserted in this motion
that the bankruptcy court “entered an [ojrder which modified the automatic
Stay and retected the (nlastar [lleages between USRP and BC Oil for the eleven
Oahu locations... + However, the (blankruptey (clourt did not reject BC
Oil's subleases With the Defendants nor did it declare them to be null and
Void." (Emphasis scded.) In a memorandum in opposition to the notion to
Gisniss, Plaineitts responded that "Bc O11 rejected the [master lea:
unieh the rights of BC 011 to sublea
Sander applicable bankruptcy Law, Defendants”
rejection and termination of the (slaster [2]:
filed written order by the court disposing of De
nor de any of the parties cite to facts of a written order disposing of this
motion £0 dlaniss.
‘On Novenber 19, 2001, Defendants filed a counterclaim that
alleged, inter alia, that Plainti¢fs “had knowledge of the retail facility
leases and approved thea orally.” Plaintiffs filed an answer to Defendants’
10
‘***NOT FOR PUBLICATION*®:
ee
subpoints to their second argument that relate to HRS chapter
486H are addressed infra, it is not necessary to discuss this
argunent.
As to Defendants’ third argument on appeal that the
court erred in finding that “franchises” as defined by HRS
chapter 486H did not exist, Defendants seemingly maintain that:
(a) the court’s construction of “franchise” was wrong inasmuch as
the intent of the legislature was to “preserve” and “protect”
i (b) “valid
“independent” gasoline dealers, i.e. Defendant
franchises were created” between BC Oil and Defendants pursuant
to HRS chapter 486H and with the alleged fuel supply agreements
and the retail facility leases; (c) HRS §§ 486H-2 and 486H-3
provide an “exclusive list” of grounds for termination of
Defendants’ franchises and none of these statutory grounds were
“alleged or proven” by Plaintiffs in the consolidated actions;
(d) Plaintiffs “succeed{ed) to the interests of BC O11” in light
of HRS § 486H-10.4(a); (e) Plaintiffs are “bound by the terms of
countezclain on December 12, 2001, and asserted as 2 defense that [t]he
‘election of the (nlaster Lilsases effectively terminated any end all of
Béfendante’ Fighte under The [a]ubleases.” (Enphasia added.) Once again, there
{sno written order disposing of Defendants’ counterclaim or addressing
Plaintiffs’ defense, nor do any of the parties cite to facts or a written
Grier resolving Defendants’ counterclaim and Plaintiffs’ answer.
‘additionally, the court apparently did not render its oral rulings
and judgments based on any construction of the bankruptcy court's alleged
Eelection and termination of the master leases or retail facility leases. See
supra text at 5
+ igth regard to the contention that the legislature intended that
eS chapter 486i preserve and protect independent gascline dealers, to the
extent chat (1) the language of HRS § é86H-1 plainly and unambiguously
feguires that a “franchise” is created, in part, when “petroleun products are
supplied by the petroleum distributor” and (2) no such supply agreenent
Betheen Plaintiffs and Defendants exists in the case at bar, see intra, it is
hot necessary to address Defendants’ suopeint (a) as to the legislative
Intent.
a
‘*#*NOT FOR PUBLICATION*##
the franchise(s] and [HRS] chapter 486K"; (f) the court’s finding
that no franchises existed between Plaintiffs and Defendants
Plaintiffs were not a “large petroleum distributor” “has
becau:
no support in the legislative history” and “allow(s} . . «
[Plaintig#s} to circumvent all dealer protections because it is
not a ‘large oil company’”;? (g) Plaintiffs are precluded from
arguing that HRS chapter 486H does not apply because Plaintiffs,
in 1998, represented that they would be bound by dealer
protection statutes such as HRS chapter 486H in order to convince
former gasoline dealers and the State of Hawai'i to withdraw
objections to the proposed sale of Equilon gas stations to USRP
and BC Oi1;" and (h) the court misconstrued the law regarding the
7 Width regard to subpoint (£) that there is “no support in
legislative history for the court's finding that franchises did not exist
betwe Plaineifts were not a “large
petroleun distributer,” font that (1) the Language of HRS
{§ 486H-1 plainly and unanbiguovsly “franchises” are created, in
Bart, when “petroleum products are roleua distributor” and
T2} ho such supply agreements between Flaintitts and Defendants exist in the
Case at Dar, ge8 inéta, it 19 not necessary to address Oefendants’ subpoint,
(£) as to the legislative history.
+ With regard to the contention that Plaintiffs previously
represented that they would be bound by HRS chapter (BH, Defendants recite in
thelr opening brief relevant background information” with respect to
Plaintiffs’ purchase of numerous service station properties in Hawai from
Equllon Enterprises, LUC, a Joint venture between Texaco, Inc, and shell Oit
Company. This purchase allegedly took place after Texaco and Shell entered
into an agreement and con Trade Conmisaion and the
State of Hawai relating \dants refer to fi
trial exhibits and 140 pages of t ‘trial in the instant
‘ase on February 21, 2002 to construct this "background information.”
Defendants also assert in their opening brief that “[1]s response
to objections and criticism of BC Oil's financial status, (Plaintif¢s)
represented to the then operators of Texaco service stations and the Attorney
General's Office that (Plaintiffs) would stand in the shoes of BC Oil in the
event that SC Oil could no longer operate and provide (Petroleum Marketing
Practices Act} rights to (Defendants]." For this assertion, Defendants refer
Generally to one trial exhibit. Defendants rely on transcripts snd trial
@knibits without specific citations and with citations that also appear to be
misleading. Because “(tJhis court is not obligated to sift through th
Yoluninous records to verify [Defendants’] inadequately documented citations,
Lanai Cou, Inv. v Land Use Coma’p, 105 Hawai'i 296, 309 n.31, 97 P. 3d 372,
12
‘*sNOT FOR PUBLICATION***
ee
requirements of a franchise under HRS § 486H-1 by requiring that
both the fuel supply agreement and the lease were necessary to
establish a franchise when only one document is required.
In 1975, Act 133 added a new chapter to the Hawai"t
Revised statutes. 1975 Haw. Sess, L. Act 133, $ 1, at 260. This
chapter is presently designated as HRS chapter 486H and is
Under HRS § 486H-2 (1993), “a
entitled “Gasoline Dealer:
petroleum distributor shall be liable to a gasoline dealer who
sells the products of the petroleum distributor under a franchise
the
from the distributor for damages and such equitable relief ai
court deems proper resulting from the wrongful or {illegal
termination or cancellation of the franchise during its term{.]”
Thus, to establish Liability under HRS chapter 486H, a
“franchise” must exist between a “petroleum distributor” and a
“gasoline dealer.”
HRS § 486H-1 (1993) defines “franchise” as
(1) Any agreement or related agreements between
petroteum divteibuter and a gasoline dealer under which the
Essoline dealer ie granted the right to uses trademark,
frede name, service mark, of other identifying symbol or
ene owned by the distributor a
distributor’ or
(2) Any agreement of related agreements described in
paragraph (1) and any agreement between a petroleum
Elseributor and a gasoline dealer under which the gasoline
Sealer 1s arant es
35 n.3t (2004), At ds net necessary that this argunent be addressed
3
‘s**NOT FOR PUBLICATION®#*
Leased. or controlled by the distributor, for the ourpose of
enaaasnain-the retail sale of petroleun products supplied
by the distributer.
(Emphases added.)
In the instant case, it is concluded that contrary to
Defendants’ contention that the court erred in finding that
franchises as the term is defined in HRS chapter 486H did not
exist, HRS chapter 486H is inapplicable because (1) there are no
agreenents for Plaintiffs as petroleum distributors to supply
petroleum products to Defendants under HRS § 486H-1(1), (2) there
are no agreements between BC Oi1 and Defendants for nine of the
ten disputed service stations that would create “franchises”
between BC Oi1 and Defendants under HRS § 486#-1(1) such that
Plaintiffs “succeed to the interest of BC Oil,” and (3) as to the
jes agreement was executed between
one station for which a fuel
BC O41 and Defendants, nothing in that agreement establishes that
Plaintiffs are liable to Defendants for an agreement entered into
by BC O12.
Pursuant to HRS §§ 486H-1(1) and (2), “franchises” are
created, in part, where “petroleum products [are] supplied by the
petroleum distributor.” In the case at bar, however, Plaintiffs
argue that (1) the evidence presented at trial established that
Plaintiffs had no agreement to supply petroleun products to
Defendants and (2) Plaintiffs never supplied petroleum products
to Defendants. Defendants do not dispute that there were no
agreements that Plaintiffs supply Defendants with petroleum
4
‘s#eNOT FOR PUBLICATION***
ee
products. Therefore, as between Plaintiffs and Defendants,
franchises did not exist.
Arguably, as Defendants assert, the fuel sales
agreement for the station located at 150 North Kamehameha Highway
(1) satisfies the requirements for a franchise under HRS § 496H-
1(2) because this agreement grants Defendants “the right to us
the ARCO tradenark, trade name, service mark, or other
identifying symbol or name owned by the distributor in connection
with the retail sale of petroleum products supplied by the
petroleum distributor, BC Oil,” and (2) is seemingly
wrepresentative” of fuel supply agreements for all the disputed
stations “because they were in the same form, the only difference
being the locations and lessee’s names.” According to this
theory asserted by Defendants, “[£]ranchises were created when BC
oil and [Defendants] entered into fuel supply agreements and
leases for the various stations” and Plaintiffs “should continue
to be bound by the terms of the franchise and (HRS) chapter
ancn.”
However, there is nothing in the fuel sales agreement
that establishes a relationship between Plaintiffs and BC O12
such that Plaintiffs have “franchise relationships” with
Defendants. Plaintiffs argue, intex alia, that although the fuel
sales agreement “is a plain and unambiguous (f)ranchise
[algreement [as] between Defendant... abba and BC Oil for the
ment is absolutely void of any
Wahiawa Service Station, that agr
indication that (Plaintiffs are) a party in any manner[.]" As
1s.
NOT FOR PUBLICATION*##
mentioned previously, this fuel sales agreement was entered into
between BC Oil and Defendant Wahba. Plaintiffs were not a party
to this fuel sales agreement and no evidence was presented to
establish any “successive” relationship between BC Oil and
Plaintiffs under this fuel sales agreement.
Defendants’ theory also lacks merit as to nine of the
ten disputed stations because, as pointed out by Plaintiffs, only
one fuel sales agreement was submitted into evidence for one of
the disputed stations. Assuming arguende that such an agreement
created franchises between BC Oil and Defendants to which
Plaintiffs succeeded BC Oi1 as a petroleum distributor, the
remaining stations still require fuel sales agreements. It is
not enough that Defendants assert, without citations to the
record, that one agreement was representative of agreements as to
each station. Because this court is not obligated to sift
through the voluminous records to verify [Defendants’}
inadequately documented citations, Lan: Inv. ve
Comm'n, 105 Hawai'i 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004),
the court was not wrong to conclude that “Defendants failed to
present any fuel sales agreements as to the remaining stations in
dispute.”
Accordingly, no franchises existed between Plaintiffs
and Defendants under HRS § 486H-1 because (1) the plain language
of HRS §§ 486H-1(1) and (2) instruct that a petroleum distributor
“suppl{y]” @ gasoline dealer with petroleum products in order for
franchises to exist and no supply agreements exist between
16
‘*#sNOT FOR PUBLICATION***
Plaintiffs and Defendants, and (2) the one fuel sales agreement
n BC O41 and
that is a part of the record was executed betws
Defendants and did not include Plaintiffs as a party. In the
absence of franchise relationships between Plaintiffs and
Defendants, HRS chapter 486H protection cannot be invoked for
Defendants and, to the extent that Defendants’ subpoints (b),
(ed, (a), (e), and (h) of Defendants’ third argument maintain
that HRS chapter 486H governs the case at bar, these subpoints
are without merit.
As to Defendants’ fourth argument on appeal that
Plaintiffs and BC Oil were joint venturers, with Plaintiffs
assuming the obligations of BC Oil under the retail facility
leases, Defendants contend a “joint venture” between Plaintiffs
and BC Oil was evidenced by the contribution of monies, joint
management and profit-sharing among Plaintiffs and BC Oil in the
operation of the stations, and control by Plaintiffs and
provision of a credit line and forgiveness of debt by Plaintiffs
to BC O11. According to Defendants, this “joint venture”
“establish(ed) the liability of [Plaintiffs] for the obligations
of BC Oil as a petroleum distributor under [HRS c]hapter 486H.”
‘The record on appeal, however, lacks sufficient
evidence that Plaintiffs assumed the liabilities and obligations
of BC O11 ag a “petroleum distributor” pursuant to HRS chapter
486H. “A joint venture is a mutual undertaking by two or more
persons to carry out a single business enterprise for profit. It
is closely akin to a partnership and the rules governing the
”
NOT FOR PUBLICATION***
creation and existence of partnerships are generally applicable
to joint ventures.” Shinn v. Edwin Yee, Ltd., $7 Haw. 215, 217,
553 P.2d 733, 736 (1976). “The existence of a joint venture
agement must be shown by the preponderance of the evidence
+ +, and its essential terms must be established with
reasonable certainty.” Id, at 218, 553 P.2d at 737 (citations
omitted).
In the instant case, Defendants (1) refer extensively
to testimony provided by Wilensky, Baskaron, and Timothy
Hamilton, a petroleum consultant and trade association executive
identified as Defendants’ witness in the trial below, and
(2) point generally to a 1998 letter to the Federal Trade
Commission from the Acquisitions Manager of USRP to establish the
existence of a joint venture between Plaintiffs and 8C Oil and
the terms of said joint agreement. However, Defendants do not
provide specific citations to the record for either testimony by
Wilensky, Baskaron, Hamilton, or to specific portions of the
letter as evidence of the existence of the alleged joint venture.
Because “[t]his court is not obligated to sift through the
voluminous records to verify [Defendants’] inadequately
lanaiCo., Inc. v, Land Use Comm'n, 105
Hawai'i 296, 309 n.31, 97 P.3d 372, 385 n.31 (2004), Defendants’
documented citations,
contention of the existence of a joint venture between Plaintiffs
suming arguendo that a
ive. Moreover,
and BC Oi1 is not pers
Joint venture existed between Plaintiffs and BC Oil, because no
franchises existed between Plaintiffs and Defendants, Plaintiffs
18
‘+#eNoOT FOR PUBLICATION***
are not liable te Defendants under HRS chapter 496H.
‘As to Defendants’ fifth argument on appeal that the
court lacked subject matter jurisdiction to resolve the
consolidated actions, Defendants contend that the instant case
(a) involves substantial property rights, i.e, franchises are a
“long-term right” pursuant to HRS §§ 46H-2, 486-3, and 486H~
10.5, and (b) can only be adjudicated in circuit court in
accordance with Tingce, 74 Haw. 294, 645 P.2d 1186 (1992). These
contentions are unpersuasive because, as asserted by Plaintiffs,
(a) there are no franchises between Plaintiffs and Defendants so
as to create a “long-term” right for Defendants in the disputed
service stations and (b) Zingco does not support Defendants’
position.
In Tingco, the disputed lease “involve(d] ownership
rights in the leasehold estate as well as the right to exclusive
possession” because the lease, inter alia, (1) was a “fifty-five
year, renewable ground lease[,]" (2) “enabled and required
lessees to build their residences on the leased land[,]” and
(3) “acknowledge (d) the possibility that (lessees) might mortgage
and later sell their ‘leasehold interest.'" 74 Haw. at 301-02,
845 P.2d at 1189 (emphasis added). The Tingco court held “that
long-term residential ground leases . . . cannot be cancelled or
forfeited in a district court summary possession action under HRS
chapter 666,” id, at 305, 645 P.2d at 1191 (emphasis added),
because the lessee in such leases “often holdi] more than a
possessory interest [in the property,]" id. at 304, 845 P.2d at
19
NOT FOR PUBLICATION*#*
1191 (emphasis added), and “HRS § 604-5(d) limits the civil
jurisdiction of the district court by excluding real actions or
actions involving title to real property.” id, at 306, 945 P.2d
at 1191 (emphasis added). Tingco does not apply to the instant
case and deprive the court of jurisdiction because the disputed
leases and fuel sale agreement, as noted by Plaintiffs,
“concern{] short-term leases of no more than [five] year terms”
and not “a long-term,” “fifty-five year lease.” Id. at 301, 305,
645 P.2d at 1189, 1191. Hence, the court properly exercised its
jurisdiction in the consolidated actions in light of (1) the
short-term nature of the fuel sales agreement and (2) the absence
of franchises between Plaintiffs and Defendants.
As to Defendants’ sixth argument on appeal that
Plaintiffs did not comply with the notice requirements for
termination of a gasoline dealer's franchise pursuant to HRS
§ 486H-3,? Defendants maintain that noncompliance rendered
termination of the franchises invalid. Inasmuch as there are no
franchises between Plaintiffs and Defendants as defined in HRS
§ 486#-1, Plaintiffs were not required to comply with HRS § 486H-
3 notice requirements. Therefore,
In accordance with Hawai'i Rules of Appellate Procedure
Rule 35, and after carefully reviewing the record and briefs
* RS § 486H-3 provides in pertinent part that “[a) petroleun
distributor shall not terminate, cancel, oF refuse to renew a franchise with &
Gasoline dealer without first giving the dealer writeen notice by certified
mail at Least ninety days in advance of the effective cate of such action as
set forth in the novice.”
20
‘+#sNOT FOR PUBLICATION:
submitted by the parties, and duly considering and analyzing the
law relevant to the arguments and issues raised by the parties,
HT 19 HEREBY ORDERED that the district court’s March 8,
2002 and March 11, 2002 judgments are affirmed.
DATED: Honolulu, Hawai", August 17, 2005.
on the brief.
Mark S. Kawata for
oars; tanned Pasta Cee ae
(McCorristion Miller
mibtnaleittgpelases. PR,
Conon e. bgt Bh
21
|
533e5cd9-2056-48a7-8e65-81a6fb04501e | Tran v. State | hawaii | Hawaii Supreme Court | LAWUBRaRY
*** NOT FOR PUBLICATION *"
No. 27166
IN THE SUPREME COURT OF THE STATE OF HAWAT'
ne so
DAT MINH TRAN, Petitioner-Appellant,
gawd
STATE OF HAWAT'I, Respondent-Appellee.
SOW ny nv Sova
eis
APPEAL FROM THE FIRST CIRCUIT COURT
(3.P.P. NO. 03-1-0052)
(By: Nakayama, J. for the court!)
Upon review of the record, it appears that the circuit
court's January 27, 2005 order denying appellant's HRPP Rule 40
petition for post-conviction relief was appealable by notice of
appeal filed with the circuit court within thirty days after the
order was entered. See HRPP 40(h); BRAP 4(b) (1). Appellant’s
notice of appeal was filed with the circuit court on March 8,
2008, thirty-eight days after entry of the January 27, 2005 order
and was untimely. Our recognized exceptions to the requirement
that notices of appeal be timely filed do not apply in this case.
‘Thus, we lack jurisdiction. See Grattafiori v. State, 79 Hawai'i
10, 13, 897 P.24 937, 940 (1995) ("[(CJompliance with the
requirement of the timely filing of a notice of appeal is
jurisdictional, and we must dismiss an appeal on our own motion
Lf we lack jurisdiction.”). Therefor
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, August 4, 2005.
FOR THE COURT:
Peet es Crue o-
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
a.
|
f1c6a14c-9e93-4f95-9afb-660497285149 | State v. Slepoy | hawaii | Hawaii Supreme Court | _ —no-26603-——— ee
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
see
STATE OF HAWAI'I,
Respondent /Plaintiff-Appellant,
STEPHEN A. SLEPOY, Petitioner/Defendant-Appellee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NOS. TB4P-TBIP: 2/20/04)
1 RT:
(By: Duffy, J. for the court!)
Petitioner /Defendant~Appellee’s application for writ of
certiorari filed on July 25, 2005, is hereby denied.
DATEL
Honolulu, Hawai'i, August 3, 2005.
FOR THE COURT:
Yorn Dag by «
Associate Justice
Deborah L. Kim,
Deputy Public befender,
for petitioner /defendant-
appellee on the writ
Kd &-
oats
ay
sand SAN.
Yuva 1 Vi
* considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
|
189e730b-4f89-411a-a1df-7a300717f070 | Liftee v. Boyer | hawaii | Hawaii Supreme Court |
No. 23760
Hd 4 oni sour
aad
IN THE SUPREME COURT OF THE STATE OF HAWAI'L
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 98-3809)
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
Upon further consideration of the application for
writ of certiorari, supplemental briefs, and the records and
files in this case, it appears that the writ of certiorari was
‘Therefore,
improvidentiy granted.
IT 18 HEREBY ORDERED that this certiorari proceeding is
DATED: Honolulu, Hawai'i, August 4, 2005,
Vladimir Devens for Pesce erty
appellee 2a —— C
Une uty be
|
83d878d6-bbbc-418f-9937-78bf623bfc6b | Sato v. Verizon Hawaii, Inc. | hawaii | Hawaii Supreme Court | *“** NOT FOR PUBLICATION *** i
No. 27266
Wd "ony save
a3as
TN THE SUPREME COURT OF THE STATE OF HAMAZ‘E
PAUL M. SATO, Claimant-Appellant, 3|°
is
VERIZON HAWAII, INC. and FIRST INSURANCE COMPANY OF HAWAII, LTD.,
‘Employer/Insurance Carrier-Appellee.
SS
APPEAL FROM THE LABOR & INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2004~541(2-92-26295)
‘ORDER DISMISSING APPEAL
(By: Nakayama, J., for the court!)
Dates once
Associate Justice
“considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
|
5cd5cd99-0686-4da6-b1c0-a33100f3a42d | State v. Sorino | hawaii | Hawaii Supreme Court |
LAW LinpaRy
No. 26009
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'E,
&
Respondent-Appellee, z =
* a 2 2
. ee F
GERVEN SORINO, Gs =
petitioner-Appeltant. ge = ©
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 98-0347)
ORDER GRANTING APPLICATION FOR Wi
(By: Levinson, J., for the court")
upon consideration of application for a writ of
certiorari filed July 28, 2005, by the petitioner-appellant
Gerven Sorino, the sane is hereby granted.
DATED: Honolulu, Hawai'i, August 3, 2005.
FOR THE COURT:
Sic Plionse~
STEVEN H. LEVINSON
Associate Justice
cnythia A. Kagiwada,
for petitioner-appellant
on the application
Considered by! Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
|
55b73e23-8b98-4b6e-9ca7-78657f8889c4 | State v. Rees | hawaii | Hawaii Supreme Court | No. 26470
STATE OF HAWAI'I,
Plaintiff-Appellee-Respondent,
aver
20:2 Wd be vor sug
oats
TIMOTHY C. REES,
Defendant-Appellant-Petitioner,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CITATION NO. 1803070MH)
(By: Levinson, J., for the court")
upon consideration of the application for a writ of
certiorari filed on July 18, 2005, by the defendant-appeliant~
me is hereby denied.
petitioner Timothy C. Rees, the
Honolulu, Hawai'i, July 28, 2005.
DATED:
FOR THE COURT:
Bhar tiinnee~
STEVEN H. LEVINSON
Associate Justice
Timothy C. Rees,
pr Se on the writ
and Duffy, 39.
Woon, C.J.) Levinson, Nakayama, Acob
* Considered by:
|
d3435b8d-ba81-483e-aaf7-3ef8a68ee18d | Villiarimo v. Aloha Airlines | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION ***
No. 27261
He f- ony 002
aad
is
HAROLD K. VILLIARINO, Claimant-Appellant,
ALOHA AIRLINES and SPECIALTY RISK SERVICES,
Employer/Insurance Carrier-Appellee.
APPEAL FROM THE LABOR & INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2004-447 (2-01-0582)
(By: Nakayama, J., for the court)
Upon review of the record, it appears that (1) the
Supreme Court Clerk's Office informed Appellant, by letter dated
July 8, 2005, that the record on appeal cannot be filed without
payment of the filing fee pursuant to Rule 3(f) of the Hawai'i
Rules of Appellate Procedure (HRAP) or an executed motion to
proceed in forma pauperis pursuant to HRAP Rule 24 and that the
matter would be called to the attention of the court for such
action as the court deemed proper pursuant to HRAP Rule 11(a),
including dismissal of the appeal; and (2) Appellant failed to
pay the filing fee or submit a motion to proceed in forma
pauperis; therefore,
IT IS HEREBY ORDERED that the appeal is dismissed.
parE!
Honolulu, Hawai'i, August 4, 2005.
Besseean Cates O04
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 29.
|
5656fac6-c4eb-40dd-acb3-474c70aac277 | State v. Mainaaupo | hawaii | Hawaii Supreme Court | No. 25904
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee a
DEBORAH K. MAINAAUPO, aka Debra K. Kanakaole,
Petitioner/Defendant-Appel lant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 00-1-1520)
(By: Levinson, J., for the court")
The Application for Writ of Certiorari filed on July 5,
2005 by Petitioner/Defendant-Appellant Deborah K. Mainaaupo, is
hereby denied.
DATED: Honolulu, Hawai‘, July 15, 2005.
FOR THE COURT:
SAY Lowrnne—
Associate Justice
DISSENT BY ACO! FY. ONS
I respectfully dissent from the denial of certiorari.
Based on my dissent in State v, Rivera, 106 Hawai" 146, 102 P.3d
1044 (2004), I would grant certiorari and vacate the circuit
court's sentence.
Mary Ann Barnard, on
the writ for petitioner/
defendant-appellant. &
+ Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and
putty, 39)
out
|
51112b18-2e81-456b-82ab-3a028ad276fb | Pacific Source, Inc. v. Tapia | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION ***
No. 27194 22/5
6 WY 62 nr sone
IN THE SUPREME COURT OF THE STATE OF HAWAE’
ee
PACIFIC SOURCE, INC., a Washington Corporation,
Lienor-Appellant,
ROBERT TAPIA and ALICIA H. TAPIA, Owners-Appellees,
and
BANK OF HAWAI'I, 2 Hawai'i corporation, Mortgage,
and
JOHN DOES 1-50; JANE DOBS 1-50; DOE CORPORATIONS 1-50; DOE
PARTNERSHIPS 1-50; and DOE ENTITIES 1-50,
Unidentified Respondents.
APPEAL FROM THE FIRST CIRCUIT COURT
(4.b. NO. 04-1-0034)
(ey: Rakayana, Se for the court)
Upon review of the record, 4t appears that the circuit
court's February 28, 2005 order denying the application for a
nechanie's and materiaiman’s Lien finally resolved the Lenor’
claim for a lien, ‘The February 28, 2005 order was not reduced to
a separate judgment, as required by HRCP S@. see dankins vs
cades Schutte Fleming & Wright, 76 Havai'i 115, 969 .2d 1394
(1994) (an order that resolves claims in a circuit court civil
case is not appealable unless the order is reduced to a separate
Thus, the appeal of the February
judgment pursuant to HRCP 58).
‘Therefore,
28, 2005 order is premature and we lack jurisdiction.
fonsidered by: Moon, C.J., Levinson, Nakayama, Acoba, and Ouffy,
a.
aa
*** NOT FOR PUBLICATION
I? IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, July 29, 2005.
FOR THE COURT:
|
f48cd7f5-b60a-44d2-bbda-e88ca8ca35e6 | In re Tax Appeal of Director of Taxation, State of Hawaii v. Medical Underwriters of California | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION *
No. 27137
IN THE SUPREME COURT OF THE STATE OF HAWAT'T |v
oo
We SI 1nr saz
aad
TH TE WROTER OG HE TK APPEAL ge
rescron oF taxRTrON, state GF HAVRE, Appellant-Appediee,
MEDICAL UNDERWRITERS OF CALIFORNIA, Appellee-Appellant.
APPEAL FROM THE TAX APPEAL COURT
(EASE NO. 00-0061)
(ey: Mabyanas Se Tor the cbure)
Upon review of the record, st appears that an order
disposing of the January 28, 2005 motion has not been entered on
the record of Tax Appeal Case No, 00-0061. sige HRAP 4a) (5)("A
Judgnent or order is entered when it ds filed in the office of
the clerk of the court."). The January 28, 2005 motion was not
Gooned denied under the 90-day provision of HRAP 4(a) (3) inasmuch
as the January 28, 2005 motion was not filed within ten days
after entry of the September 13, 2004 final judgment. Absent
entry of an order disposing of the Janvary 28, 2005 notion, this
appeal is prenature and we lack jurisdiction, See HRS § 232-19)
Tax Appeal Court Rule 2, Therefore,
IT 15 HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATE!
Desa rece,
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and
a3.
|
ecb07bea-3f32-45bd-b7c9-a22d8a0d81b5 | Dunaway v. Administrative Director of the Courts. S.Ct. Order of Correction, filed 07/29/2005 [pdf]. | hawaii | Hawaii Supreme Court | ‘***POR PUBLICATION®#*
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
---000"
Petitioner-Appellant
ante
°
S18 HY 6
RICHARD J. DUNAWAY,
ADMINISTRATIVE DIRECTOR OF THE COURTS,
STATE OF HAWAI'I, Respondent-Appellee
No. 26616
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. JR 04-0005; ORIGINAL CASE NO. 04-00532)
JULY 28, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
We hold in this appeal by Petitioner-Appellant Richard
Dunaway (Dunaway), from the May 13, 2004 judgment of the district
court of the first circuit! (the court) affirming the March 29,
2004 decision of the Director of the Administrative Driver's
License Revocation Office (Respondent),* that Exeitas vs Aduin.
Dix. of the Courts, 104 Hawai'i 483, 92 P.3d 993 (2004)
+ the Honorable Faye Koysnagi presides.
* Mawai's Revised Statutes (HRS) § 2918-1 (Supp. 2004) states thet,
“*pirector’ means the administrative director of the courts or any other
person within the judiciary appointed by the director to conduct
Administrative reviews of hearings or carry out other functions relating to
Adzinistrative revocation under part III entitled "Administrative Revocation
Procese’).” 96 Hawes's 214, 115
nul, 26 P34 1214, 1215 n.1 (2001). Hereinafter, “Respondent” is used
interchangeably to designate the adninistrative review officer and the hearing
ceticer.
‘*#*FOR PUBLICATION®#*
(hereinafter, “Exeitas 1°], and Exeitas v. Admin, Dir, of the
Courts, No. 25323, slip op. (July 22, 2005) {hereinafter,
“Freitas I1”], apply, and that as to issues not decided by those
cases, (1) Honolulu Police Department (HPD) form 3968, the
implied consent form, adequately informs drivers that they have a
choice to submit or to refuse a blood or breath alcohol
concentration test; (2) the police need only provide statutorily-
mandated warnings to drivers suspected of operating a vehicle
under the influence of an intoxicant (OUI), hence police need not
advise that reasonable suspicion to stop a vehicle and probable
cause to arrest must algo be established at a revocation hearings
(3) HPD form 3968 adequately served notice that the term
“vehicle” as it pertained to License revocation encompassed
“mopeds” and “vessels”; and (4) the Notice of Administrative
Revocation explained the difference between an administrative
revocation and a criminal suspension as required under Hawai"
Revised Statutes (HRS) § 2916-34(a) (2) (Supp. 2004). In Light of
our holding we affirm the aforesaid judgment.
1
on February 14, 2004, Dunaway was arrested in Kaneohe
for operating 2 vehicle under the influence of an intoxicant, HRS
§ 2918-61 (a) (Supp. 2004), and was issued a Notice of
Administrative Revocation. Duneway’s revocation for three months
was upheld at an adninistrative review by Respondent on
February 23, 2004, based on a blood test result of 0.08 or
higher. Dunaway requested a hearing pursuant to HRS § 2918-38
2
***FOR PUBLICATION®**
(Supp. 2004)? and a hearing was held on March 24, 2004, at which
time Dunaway appeared through counsel.
objection to
The hearing began with Dunaway’
Respondent’ s procedure of requiring visitors to sign in on a list
and produce identification in order to attend the hearing.
Dunaway filed a subpoena request for chief adjudicator Ronald
Sakata to testify on the justification far the procedure. The
hearing officer denied the subpoena request. Security was the
justification given for the identification and sign-in procedur:
Prior to the hearing, a woman cane in and asked to attend
Dunaway’s hearing, offering to be searched but refusing to show
identification or sign the list because this would invade her
privacy, Dunaway argued that if the subpoenaed police officers
were going to testify, then Dunaway had a right to have members
of the public present for his hearing.
The hearing officer stated that the public was not
denied access as long as they showed proper identification.
Dunaway countered by noting that the public must also sign in to
gain access to the hearing and he would waive examination of the
police officers if the public was so denied.
The hearing officer explained the procedure she would
use in the hearing. When asked whether the hearing was de novo
or a review of the administrative review decision, the hearing
) states in pertinent
We Fespondent may request an adein
hesring to review the decision within six Gaye of the date the scministrative
review decision fa matled, = + =”
‘**4F0R PUBLICATION!
officer responded that the hearing is de novo under HRS §2916-
38(e).! The hearing officer explained that the police have the
initial burden of proof which may be satisfied with docunentary
evidence received pursuant to HRS § 291E-38(h), sworn statements
required by HRS § 2916-36 (Supp. 2004), and documents which
pertain to prior alcohol enforcement contact as specified by HRS
§ 2916-38(f). Upon reviewing the police report, the hearing
officer concluded that the police had satisfied their initial
burden of proof. The report included the Preliminary Alcohol
Screening report, the field sobriety test report, and the sworn
statenents of Arresting Officer Shermon Dowkin dated February 14,
2004, transporting Officer Michael Moya (phonetic spelling),
Intoxilyzer Operator Daron Akiyama (Form HPD 396D) dated February
14, 2004, and Intoxilyzex Supervisor Lawrence Santos (Form HPD
3968) dated February 5, 2004.
Dunaway objected, arguing that HRS § 2916-38(2) states
that the purpose of the hearing is to review the administrative
review decision and nothing in HRS § 2918-38(e) indicates the
+ RS § 2918-38 (e) states as follow
‘The dixector shall affirm the administrative
revocation only if the director determines tha
a)” “There existed reasonable suspicion to stop the
venicle ss
(2) There existed probable cause to believe that the
Fesponsent operated the vehicle while under the
intiuence of en intoxicant; and
(3) The evidence proves by 2 preponderance that:
(a) "The respondent operated the vehicle while
Under the influence or an intoxicant) or
(B) The respondent operated the vehicle and,
After being informed of the sanctions of
this part, refused to subst to a breath,
Blood, oF urine test.
4
‘*4*POR PUBLICATION:
hearing is de novo. Dunaway then asked that the hearing officer
follow a procedure as set forth by him, claiming that the
“administrative revocation scheme contemplates that this
procedure will be followed pursuant to HRS § 2916-38."° The
procedure recommended by Dunaway would mandate a hearing officer
to rescind the revocation and end the hearing if the hearing
officer was satisfied that a three-prong test of (1) reasonable
suspicion to stop the vehicle, (2) probable cause to believe
respondent is OUI, and (3) proof of OUI, had not been satisfied.
If the hearing officer was satisfied that the test had been net,
* The written procedure proposed by Dunaway stated as follows:
‘The hearing officer receives into evidence only the sworn
Statenents described in HRS $2918-36(a) (1), (2), and. (3) end
fent evidence of any prior alcohol/drug enforcement
ee (HRS. $291E-38(g)and(nl)7
Tf the hearing officer 1s satisfied that the three
prong test has not been met, the
Fescinds the revocation snd’ the
2516-36 (0)7 the three-prong (2) reasonable
suspicion to stop, (2) probable cause to belis
Fespondent (0JUr, and (3) proof of (0)UI (Kernan v.
Tanaka, 75 Haw. 1, 30, 856 P.2d 1207, 1222 (1993))7
Ifthe hearing officer is satisfied that the three
prong test has been met, the hearing officer 20 finds
and the respondent 1s given the opportunity to offer
evidence to refute any’part of the three prong test or
Sny prior alcohol contact. {id
3. If there is any other comerent evidence which has
becone relevant by virtue of the respondent’ s
evidence, whether documents in the file, through
witnesses, or otherwise, the hearing officer may
Feceive sich evidence (HRS $2916~38(d) (3))7
4, The'hearing officer makes findings and either rescinds
of upholds the revocation (HRS §2916-38(d) (6) )7
5. If the revocation is upheld, the hearing officer makes
Findings 2s to any prior alcohol/drug enforcenent
Contacts and the consequences thereof (HRS $231E~
ae).
Pursuant to IRS §291E-38(a) and according to paragraph 7(b)
of “INFORMATION ABOUT REVOCATION PROCEDURES” on the back of
page 1 on the Notice of Administrative Revocation, the
Burpose of this hesring 1s "to review the [administrative
Feview) decision,” not conduct @ de novo hearing. Thus, the
saring officer has no paver to increase the revocation
period set at the adninistretive review
5
‘***FOR PUBLICATION*#*
oe
then the respondent would be given the opportunity to offer
evidence to refute any part of the test or any prior alcohol
contact.
‘The hearing officer declined to follow Dunaway’s
quested procedure. In the hearing, Dunaway objected to the use
of sone of the documents contained in the police report, arguing
that only the sworn statement of the arresting officer (the
arrest report) and evidence of prior alcohol or drug enforcenent
contacts were admissible. Dunaway objected to the consideration
of hearsay in any of the sworn statements except to establish
reasonable suspicion to stop his vehicle. His objections were
overruled.
Dunaway also objected to HPD form 3968 which he had
received and signed, claiming that the form failed to inform him
of the distinction between an administrative revocation and a
criminal suspension as required by HRS § 291E-34(a) (2). Dunaway
also argued that while the form informed him that driving on @
public street meant he had consented to a blood or breath test,
the form failed to disclose that drivers have a right to withdraw
that consent under State v, Entrekin, 98 Hawai'i 221, 223, 47
P.3d 336, 338 (2002). Finally, Dunaway argued that the form
failed to inform him that the adninistrative revocation of his
License and privilege to operate @ “vehicle” applied to a
“vessel” and a “moped.”
‘***FOR PUBLICATION
None of the subpoenaed witnesses testified. Ina
decision dated March 28, 2004, the hearing officer imposed a one~
year revocation of Dunaway’s driver’s license. The hearing
officer found that the hearing was conducted pursuant to HRS
§ 2918-38 which prescribes the administrative revocation hearing
procedure. The hearing officer did not agree with Dunaway’s
argument that the three-prong test was in conflict with her
findings.
The decision atated that an arresting officer is not
required to explain every consequence or aspect related to
refusing to take an alcohol concentration test or to taking the
test and failing it. The hearing officer further found, by the
preponderance of the evidence, and without consideration of the
alcohol concentration test result, that Dunaway was operating a
venicle while under the influence of an intoxicant.‘ Finally,
the decision stated that the police are not required to explain
the distinction between a criminal prosecution and administrative
revocation notwithstanding HRS § 2918-34(a) (2). The hearing
officer refused to hear Dunaway’s arguments regarding the issue
of public access.
In her decision, the hearing officer cited unpublished
district court decisions and two summary disposition orders of
© the hearing officer relied on the docunented evidence to surport
her findings. This included the qvorn statement from arresting officer
Shermon Dowein of Dunaway’s erratic driving where he weaved all over the road
The arresting officer's sworn statement a1s0 described Gunaway as having "red,
bloodshot, watery eyes, slur to his speech, flushed complexion, along with =
very strong alcoholic type beverage oder oh his breath when he spoke.”
1
‘*#*FOR PUBLICATION®**
ee
this court. Dunaway sought judicial review. In a May 13, 2004
decision, the court affirmed the hearing officer's decision.
nm.
on appeal, Dunaway argues that (1) the court erred in
sustaining Respondent's decision (a) to convene the
administrative license revocation hearing without permitting the
general public full and open access and (b) to deny a hearing on
the validity of Respondent’s security procedure; (2) the court
erred in ruling that Dunaway had not been denied due process of
law based on (a) a seeming contradiction in HRS § 291E-36(a)
which declares the revocation hearing will “review the
[administrative review] decision” yet allows motorists to call
witnesses and offer evidence, suggesting that the hearing is de
novo, (b) the lack of a uniform hearing procedure, (¢) the
admission of Respendent’s entire file, (d) the hearing officer's
adherence to Desmond v. Admin Dir. of the Courts, 91 Hawai't 212,
219, 982 P.2d 346, 353 (App. 1998) [hereinafter Desmond 1)
(advising hearing officers to inform the parties at the beginning
of the hearing of the procedure to be followed but not requiring
hearing officers to follow the procedure set forth by
petitioner), rev'd on other grounds, Desmond v, Admin Dir. of the
Courts, 90 Hawai'i 301, 978 P.2d 739 (1999) [hereinafter Desmond
LJ, and (e) the apparent disregard of the procedure set forth in
HRS § 291E, Part III, which requires a valid chemical test result
or refusal to confer jurisdiction on Respondent; (3) the court
erred in upholding the revocation although HPD form 3968
8
***FOR PUBLICATION*#*
eee
(a) failed to relate that Dunaway had a right to withdraw the
consent to a blood or breath test that was implied by his
operation of a vehicle on a public street, (b) implied that the
only issue in an administrative revocation is whether the
chemical alcohol test result reveals a blood alcohol
concentration’ (BAC) in the driver of over 0.08 or that the test
was refused, and (c) failed to inform Dunaway that the ord
Yvenicle” in HRS § 291E-1 includes “vessel” and “moped”? (4) the
court erred in holding that HRS § 2926-34(a) (2) was not violated
Ln view of the fact that HPD form 396B does not adequately
explain the distinction between administrative revocation and
criminal suspension; and (5) the hearing officer reversibly erred
in citing to unpublished district court decisions and surmary
disposition orders of this court.
uu.
Several arguments raised by Dunaway have been resolved
previously. In regards to argunent (1) (a), we have held that any
restriction on the right to a public hearing must comport with
the three-part test adopted in Freitas I." Subsequently, a
* gs §2916-21 (Supp. 2004) states that “*{bloed) [2] cohol
concentration’ means either grams of alcohol per hundred milliliters or cubic
Centimeters of blood or grang of aicohel per two hundred ten liters of
breach.”
+ the three-part test is as follows: “{1] that the regulation serve
an important governmental interest; (2) that this interest be unrelated to the
Content of the information to be disclosed in the proceeding: and [3] that,
Ehere be ho less restrictive way to meet that goal-” Ereitas [, 108 He
at 489, 92 F.3d at 399 (adopting the test outlined in Brown ¢ Wi
Tooaceo Corp. va Fed, Zeade Comm'n, 710 F.24 1165, 1179 (6th Cir. 1983),
Teieing United Stacey. O'Brien, 391 U.S. 367, 377 (1968))) (emphasis
omitted!
FOR PUBLICATION***
majority of this court affirmed that Respondent's procedure of
requiring the public to sign in and produce identification in
order to attend license revocation hearings is valid. Freitas
LL, slip op. at 8.
Dunaway correctly contends in (1) (b) that Respondent
erred in refusing to hold a hearing on the validity of the
security procedure inasmuch as in Freitas I, this court decided
that a respondent has a right to a hearing. 104 Hawai'i at 489,
92 P.3d at 999. However, Freitas Ii held that the Respondent's
sign-in and identification procedure for members of the public
Wishing to attend administrative license revocation hearings
comports with due process. Ereitas 11, slip op. at 8. The facts
in Freitas II are nearly identical to the facts in this case.
Because of the doctrine of stare decisis, Freitas Ii acts as
precedent and it is unnecessary to hold a new hearing on the same
issue. See State , 96 Hawai'i 200, 205, 29 P.3d 919,
924 (2001) (stating that “[p)recedent is an adjudged case or
decision of a court, considered as furnishing an example of
authority for an identical or similar case afterwards arising or
a similar question of law[]. . . {and the] policy of courts [is]
to stand by precedent and not to disturb settled points”
(internal quotation marks, citations, and brackets omitted)).
With respect to argument (2) (a), Dunaway proposes the
procedure he submitted in the hearing would reconcile the
purported contradiction raised by HRS § 291£-38(a), which states
10
‘**8FOR PUBLICATION***
the hearing’s purpose is to review the administrative review
decision, and HRS §§ 2916-38 (d) and (e), which allow for
witnesses to be examined and testimony to be taken in a de novo
hearing. In Exeitas II, this court found no contradiction in HRS
§ 291£, Part III and held that a procedure which permits notice
and hearing would not violate due process.’ Freitas II, #lip op.
at 23-24.
In argument (2) (b), Dunaway argues that due process
requires that a uniform procedure for administrative hearings be
known in advance and that hearings have a meaningful structure.
Again, in Fr . we “observe[d] that procedural due process
requires that a person have an ‘opportunity to be heard at a
meaningful time in a meaningful manner”, slip op. at 23 (quoting
Earner v. Admin, Dir, of the Courts, 94 Hawai'i 232, 238, 11 P.3d
487, 463 (2000)), and because the hearing is deemed to provide
such an opportunity, “{Respondent’s) program has been examined
and found not to violate due process{,]” id, at 23-24 (citing
farmer, 94 Hewai‘i at 238, 11 P.3d at 463; Kernan v. Tanaka, 75
Haw. 1, 25-32, 856 P.24 1207, 1219-22 (1993); Desmond I, 91
Hawai'i at 220, 982 P.2d at 354).
As to argument 2(c), Dunaway asserts that most of
Respondent’s file which was admitted as evidence in the hearing
should have been disallowed and that HRS § 291£-38(g) and (h)
+ Freitas II indicated that @ procedure like the one proposed by
Dunaway could be easptea if the hearing officer so chooses. fieitas Ii, slip
op. at 22 n13
n
‘+**FOR PUBLICATION®#*
ee
only permit the motorist’s prior alcohol enforcement contacts and
sworn statements described in HRS § 2918-36 into evidence. This
court stated that
\dniasion of [Respondent's] file and police
report may be barred if irrelevant or prejudicial.” Freitas I,
slip op. at 27, However, in Ereitas II, we held that the
petitioner “failed to demonstrate how adaitting the entire
[Respondent's] file and police report contravenes the
administrative revocation statute, and violates due process”
because the petitioner made no showing “that the admission of the
entire record or the police report was irrelevant or
prejudicial.” Id at 26-27. See dd. at 27 n.19 (citing Desmond
Li, 90 Hawai'i at 301-02, 978 P.2d at 739-40, for the proposition
that the only evidence a hearing officer must exclude are (a)
unsworn statements and (b) irrelevant and prejudicial evidence):
dds at 27 n.20 (noting in Miller v. Tanaka, 60 Hawai'i 358, 366-
67, 910 P24 129, 137-36 (App. 1995), cert. denied, 80 Hawai’
387, 910 P.2d 128 (1996) that the ICA determined that the
Director did not abuse his discretion in admitting the
petitioner's entire file into evidence when the petitioner failed
to identify which items in the file were objectionable) .
Similarly, in this case, Dunaway has made no showing that
specific documents in Respondent's file or the arrest report were
irrelevant or prejudicial. Thus, while the hearing officer is
not required by statute to adnit the arrest report for review,
she did not reversibly err when she did so. Freitas 11, slip op.
2
FOR PUBLICATION*#*
at 27. Relatedly, and in connection with argument 2(d), Dunaway
contends that Desmond I should be overturned. But in Freitas II,
this court reaffirmed Desmond I in response to the same argument.
Id. at 23-25.
With respect to argument (2) (e), this court had
previously ruled that a valid test result over 0.08 or a refusal
to take a chemical test is not a jurisdictional prerequisite for
a valid administrative license hearing. This court held in
Exeitas II that there is no “indicat (ion) that notice of the
Amplied consent law was intended to act as a jurisdictional
prerequisite to a license revocation hearing.” Id. at 28.
See Spock v. Admin, Dir, of the Courts, 96 Hawai'i 190, 192-94,
29 P.3d 380, 382-84 (2001) (upholding license revocation despite
suppression of breath test results based upon the hearing
officer's separate findings of being under the influence); state
vs Wilson, 92 Hawai'i 45, $3-54 n.14, 987 P.2d 169, 276-77 nid
(1999) (suppressing test results because the consequences of
consenting to or refusing to take the chemical alcohol test was
not properly conveyed to the motorist but allowing that “there is
nothing to prevent the prosecution from relying on other relevant
evidence of intoxication”).
Dunaway's fifth argument is that the hearing officer
reversibly erred in citing to unpublished district court
decisions and summary disposition orders of this court to justify
her decision. However, in Freitas IL, this court agreed with the
argument that a lower court decision will be reversed only if
13
FOR PUBLICATION*#*
“the legal result or position adopted by the lower court is found
to be erroneous as a matter of law.” Freitas II, slip op. at 29.
Because the h
ting officer's decision did not involve any
reversible error as held herein, the court did not reversibly err
in upholding the hearing officer's decision.
We now consider issues raised by Dunaway that have not
been previously decided.
v.
In argument (3) (a), Dunaway maintains that HPD form
396B failed to disclose that he had a right to withdraw his
consent to taking a breath or blood test. Dunaway relies on
Entrekin, which stated that “(t]he implied consent statute deems
any person who operates a motor vehicle or a moped on the public
highways of the state to have consented ‘to a test or tests .
of [their] breath, blood, or urine’ for the purposes of
determining whether they are driving under the influence of drugs
or alcohol[.]" 98 Hawai'i at 223, 47 P.3d at 338. Entrekin
noted that HRS § 286-151.5!° “permits drivers to withdraw their
consent.” Id, (citation omitted). However, Entrekin is
inapposite in that it was concerned with the statutory exception
“ Rnteekin noted thet
ins § 286-151,5 provided in relevant part: “If 9 person
Under arrest for driving after consuming a measurable snount
of alcohol, pursuant to section 291-43) rs
to a breath or blood test, none shail be 9}
provided in section 286-163(.)" HRS § 28
Fepealed and reenacted, in amended form,
RS § 290E=15(.)
98 Hawas"l ae 223 n.3, 47 F.3d at 338 1.3.
u
‘***FOR PUBLICATION!
to the implied consent law in HRS § 2918-21 that applied in the
event of “*a collision resulting in injury to or the death of any
person. Id, at 227, 47 P.3d at 342 (quoting HRS § 286-163).
Unlike Entrekin, this case does not involve a situation where
police were legally authorized to obtain a blood sample without
Dunaway’s consent.
Here, Ounaway was given notice about the choice
afforded him to take or refuse a test. The form informed the
driver of the “consequences for taking or refusing to take a
test” (emphasis added) and the consequences “if you choose to
take a test” and “if you refuse to take a test.” Although
Entrekin concerned the scope of HRS § 291-21 which states in
subsection (a) that “(nlothing in this part shell be construed to prevent a
law enforcenent officer fren obtaining a sample of breath, blood or urine,
fron the operator of any venicle in {na collision resulting in injury
tear the death of any person, as evidence that the operator was under the
influence of an intoxicant.” ERS § 2918-21 (a) (Supp. 2004) (replaced repealed
statute HRS § 286-163 (1993 & Supp. 2000))
8 UPD form 3968 seat
An the relevant part:
9. The administrative revocation of driver's License and
motor vehicle registration consequences for taking ox
cefusing to take a teat are aa follows:
(a) Lf vou sefuse to take ony teats end your record shows no prior
alcohol of drug enforcement contact during the five years
preceding the date.» - your license... will be revoked for =
Period of one year.
ve 2 your
License and privilege to operate a vehicle will be revoked
for a minimum of three months up tos maximum of one year:
(b) Tf you refuse to take any tests and your record shows one
prior alcohol or drug enforcement contact during the five years
Preceding the date... your license . . . will be revoked for a
Period of two years.
your
License and privilege to operate a vehicle “mili be
revoked for a minimum of one year up to a maximin of two
ye
(c) Lf you refuse to take any teste and your record shows two
prick Gleohel or drug enforcement contact during the seven years
(continued. -.)
4s
***FOR PUBLICATION*#*
eee
there is no express mention of a driver’s withdrawal of consent
under HPD form 396B, paragraph 9 of the form establishes the
consequences for taking or refusing to take a blood alcohol or
breath test. See HRS $§ 291E-41(d), (e) (Supp. 2004) and 291E-
44(a) (2) (B) (Supp. 2004). Because the form set out the
consequences of submitting to or declining a blood or breath
test, it adequately conveyed that refusal was the alternative
‘and, thus, the opposing option to consenting to a test. That a
choice was provided obviously indicated that in the event consent
was not given, no test would be administered.
In State v, Rodgers, 99 Hawai'i 70, 75, 53 P.3d 209,
214 (2002), this court rejected the motorist’s argument that her
8 (, . continued)
‘preceding the date . . . your License . . . will be revoked for =
Period of four year:
Rowevers if yoo choose to take test and fail it, your
License and privilege to operate a vehicle. « . will be
evoked for @ sinimum of two years up to a maxisum of four
yerrs.
(d) If you refuse to take any teste and your record shows three oF
nore prior alcohol or drug enforcenent contact during the ten
Jeers’ preceding the date... your license... will be revoked
for life.
noose to take 2 test and fail it, your license end
privilege to operate @ vehicle » . « will be revoked for life
(a) LL vou retuse to take any test, the administrative
evocation proceeding will not be terminated, and you will not
Guelity fora conditional permits
(enph
2 added.)
© ns § 2918-414) states that 2 refusal to be tested after being
informed of the sanctions will result in the maxima length of license
Fevocation possible, HRS § 2916-41(e) outlines sanctions for repeat
{ntoxtcated drivers (drivers wao have been criminally convicted for OUI 01
hove hod prior slechol enforcenent contact within 2 specified nunber of years)
to refuse chemical alcohol testing. HRS § 2916-46 a) (2) (B) prevents
Sohaitions2 Iscense permits from being issued to motorists who have refused
Chemical alcohol testing.
16
‘***FOR PUBLICATION*#*
consent to the chemical alcohol test was not knowing nor
intelligent because the form did not define “prior alcohol
enforcement contacts(,]” as “[nJothing before . . . (the court]
explains why or how . . . [the petitioner] could have been misled
into attributing the various interpretations she offers to the
relevant term[.]" Likewise, the form in the instant case makes
it plain that Dunaway had the choice to take the teat or to
refuse. Hence, Dunaway knew that refusal was @ course open to
him, but one that would result in legal sanctions.
B
In argument (3) (b), Dunaway asserts that HPD form 3968
incorrectly implies that the only issue at a revocation hearing
is whether a test result is over 0,08 or is refused when, in
fact, the police must also establish reasonable suspicion to stop
and probable cause to believe a driver is OUI. (Citing Kernan,
75 Haw. at 30, 856 P.2d at 1222.) Dunaway also relies on Wilson,
92 Hawai'i at 49, 987 P.2d at 272 (holding that “Hawaii's
implied consent scheme mandates accurate warnings to enable a
driver to knowingly and intelligently consent to or refuse a
chemical alcohol test”) and State v, Feldhacker, 76 Hawai'i 354,
357, 878 P.2d 169, 172 (1994) (holding that an older version of
the Respondent’s notice was void because it contained statements
of defendant's rights that conflicted with the then existing
implied consent statute, HRS § 286-253). Dunaway asserts that
v7
FOR PUBLICATION***
eee
his License revocation should be reversed as a remedy. In
response to argument (3) (b), Respondent argues that there is no
requirement under the Hawai‘l statutes that the arrested motorist
be informed about the entire administrative revocation process.
Because Dunaway was provided with a notice which met the
statutory requirements under HRS chapter 2916, Part ITT,
Respondent contends that argument (3) (b) is without merit.
We conclude that under the circumstances, the police
need only provide statutorily-mandated warnings. HRS § 2918~
34(b) (4) (Supp. 2004) requires the notice indicate that “the
. « [driver] was informed of the sanctions of this part and of
the consequences of refusing to be tested for alcohol
concentration or drug content in the blood or urine and whether
the respondent consented to be tested.” Notification of the
elenents of a stop and arrest for OUI required to be proved at
the revocation hearing is not mandated by any statute cited by
Dunaway. The cases cited by Dunaway do not support his
proposition. Therefore, we hold that HPD form 396B need not
notify drivers that the police must establish reasonable
suspicion to stop and probable cause to believe a driver is OUr
in an administrative license revocation hearing, in the absence
of a statutory directive to that effect.
Voellay vs Broderick, 91 Hawal"t 126, 129-30, 980 P.2d
999, 1003-04" (app. 1988) (determinang that an erresting officer's failure to
Indleate that the notice of aasinistrative revocation shall serve as a
temporary ariving permit as mandated by statute does not necessarily require
Feversal of a license revocation) «
18
‘***FOR PUBLICATION*#*
Dunaway further claims in argument (3) (c) that HPD form
396B failed to inform him that, in the event of a license
revocation prohibiting the operation of a “vehicle,” the term
“vehicle” includes “mopeds” and “[water] vessels.” See HRS $
2918-1 (Supp. 2004). Dunaway argues that this information would
have been material in his decision on whether to consent to a
test.
In response to argument (3) (c), Respondent asserts that
the form did adequately put Dunaway on notice that a “vehicle”
includes a “moped” or a “vessel” because Respondent claims that
common sense and a natural reading of the term “vehicle”
logically includes mopeds and vessels. We observe that the form
states that “[a]ny person who operates a vehicle upon a public
way, street, road or highway or on or in the watera of the State
shall be deemed to have given consent to a test or tests.” Under
HRS § 2918-1, “a ‘vehicle’ includes a motor vehicle, moped, and a
vessel.” “Vehicle” is defined as a “means of carrying or
transporting something.” i a 1
1309 (1993). We believe the term “vehicle” is a term of ordinary
nas § 2916-41(b) (1) (Supp. 2004) states in the pertinent part that
“[tyhe periods of adainiatrative revocation with respect to's license and
privilege to operate @ vehicle, and motor vehicle registration sf epplicable,
That shall be inposed under this part are as follows:” and lists the periods
which vary based on the number of prior slechol or drug enforcenent contacts
Dunaway clains that if he had “known that he could lose not only:
his License to drive a vehicle, but his ability to operste a vessel or drive a
Roped, ne might well have agreed to take a teat.” However, as
correctly notes, Dunaway did agree to take the test.
19
*FOR PUBLICATION*+*
usage and is broad enough to inform a person of ordinary
intelligence that it would include a means of ground
transportation such as a moped. Therefore, Dunaway’s claim that
he was unaware that a moped was a vehicle must fail.”
HPD form 3968 also puts Dunaway on notice that the term
“vehicle” includes a “vessel.” As mentioned supra, the form
stated that the term vehicle also refers to “a vehicle . . . in
" ‘This is consistent with HRS § 291E-1,
the waters of the Stat
which states that “a ‘vessel’ means all description of watercraft
that are used and are capable of being used as a means of
transportation on or in the water.” Hence, the HPD form 3968
references to “a vehicle . . . in the waters” provided notice to
Dunaway that a “vehicle” operational in waters would refer to a
means of transportation employed in the water." Therefore,
Dunaway was not erroneously informed as to the word “vehicle.”
D.
With respect to argument (4), Respondent argues that
the notice does adequately explain the difference between an
administrative revocation and a criminal suspension as required
Pe note that although the chapter on the use of intoxicants and
vehicles specifically includes mopeds in its definition of motor vehicles in
ERS § 291E+1, the Hawai! Highway Safety Act, section 266, defines “vehicle”
as “every device in, upon, or by which any person or property is or nay be
trensportes or drawn Upon @ highway, but gueludss devices moved by bunan power
oF devices used exclusively upon stationary raiis or tracks and mapeds.” RS.
$ 266-2 (1593) (emphases added) However, we consider the form as it relat
fo HRS chapter 2515.
* the form also states that “[i)f you are convicted of operating a
vehicle under the influence of intoxicants of have your vehicle license oF
privilege to operate a vessel suspended of revoked, you aay be ordered to
Feimburae the county for the cost of # blood of urine test oF both.
20
***FOR PUBLICATION*#*
under HRS § 291E-34(a) (2) (Supp. 2004). In relevant part, HRS
§ 2918-34 (a) (2) states that “[t]he notice of administrative
revocation shall provide, at a minimum and in clear language, the
following general information relating to administrative
revocatior
. Bn explanation of the distinction between
administrative revocation and a suspension or revocation imposed
under section 291-61 or 2915-61.5."
The backside of the notice states that
Stininal Drosscution. Criminal charges filed pursuant to
Hek-8. § 2518-61 may be prosecuted concurrently with the
adeinietrative proceeding. If convicted, your license ill
Be suspended or revoked, you will be required to attend a
Substance sbuse renabilitstion program, and you may have to
pay a fine, perform community service, and/or serve a prison
term... : If your license is administratively revoked
under ine Agninistrative Revocation Process and you are also
convicted of an offense under Hess. § 2918-61 arising out
Of the same occurrence, the total period of
Imposed in the two proceedings shall not exc
period of revocation imposed in either proceeding.
(Emphasis added.) Because the form explains the essential
diggerence between the civil nature of the revocation proceeding
and the penal characteristics of the criminal proceeding, the
various consequences that flow from each, and the
interrelationship between the two with respect to driving
privileges, we conclude it satisfies the directive of HRS § 2918-
34(a) (2) that “general information” about the “distinction”
between the two be explained.
2
+**FOR PUBLICATION®**
For the foregoing reasons the May 13, 2004 judgment of
the court is affirmed.
Earle A. Partington for
pet itioner-appeliant. Dena
Girard D. Lau, Deputy Secctes CMNaotney are
Attorney General, for 1a
respondent -appeliee. ay
Yorae. Duaogs Or
22
|
ec379225-527a-4226-a304-e39d4fd65e12 | Daigle v. State | hawaii | Hawaii Supreme Court | UW LBs
No. 26754
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
THOMAS R. DAIGLE, Petitioner-Appellent,
STATE OF HAWAT'I, Respondent-Appellee. ||
ne
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS) =
(S.P.P. NO, 04-1-0008 (CR. NO. 50114)) >
aad
ORDER
(py: Nakayama, J.)
upon consideration of Petitioner-Appellant’s ex-parte
motion to extend time to file certiorari in the supreme court,
the record herein and it appearing that HRS § 602-59(c) does not
allow for extensions of time to file a writ of certiorari,
I? 1S HEREBY ORDERED the motion is denied. However,
HRS § 602-59(c) and Hawai" Rules of Appellate Procedure Rule
40.1 allow Appellant thirty days from the filing of the
Intermediate Court of Appeals’ (ICA) Summary Disposition Order to
seek review of the ICA‘s decision by this court. The Summary
Disposition Order was filed on July 21, 2005 and Appellant ha:
until August 20, 2005 to file an application for writ of
certiorari, However, pursuant to Hawai'i Rules of Appellate
Procedure Rule 26, if the last day of the period is a Saturday,
sunday or legal holiday, then the deadline extends until the end
of the next day that is not a Saturday, Sunday or legal holiday.
‘Therefore, the application for writ of certiorari must be filed
in the Supreme Court Clerk’s Office by the close of business on
August 22, 2005.
DATED: Honolulu, Hawai'i, August 16, 2008.
Sen OS reer Gre
Associate Justice
iT
SEAL °
Thongs R- Daigle,
fitionér-appellant, pro se
Bathe motion® »
|
97cd91b1-df43-4737-b0cc-7ef2ec4eb69a | Teranishi v. MCP Restaurant & Lounge, Inc. | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
‘ar sae
oy No. 27183
ans “ioTHE SUPREME COURT OF THE STATE OF HAWAI‘T
acta
Be lhY 6z
‘THOMAS TERANISHT, Plaintiff-Appellant,=
MCP RESTAURANT & LOUNGE, INC., dba New Casino, a Hawai"t
Corporation, Defendant-Appellee.
and
DOES 1-50, Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO, 03-1-2134)
ORDER DISMISSING APPEAL
: Nakayama, J. for the court!)
Upon review of the statements supporting and contesting
jurisdiction and the record, it apps
not been entered in Civil No: 03-1-2134. The February 24, 2005
re that final judgment has
order denying the motion for sanctions under HAR 28 is not a
final order immediately appealable under the collateral order
doctrine inasmuch as the order is effectively reviewable on
appeal froma final judgment. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, July 29, 2005.
FOR THE COURT:
‘considered by: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy,
a3.
|
e7ef4185-a5ad-4d8e-b967-bd8d627bd834 | Hoyle v. Kaupulehu Land, LLC | hawaii | Hawaii Supreme Court |
I
Zinn, =F
4M cous 4, 2
f ‘<9, NOT FOR PUBLICATION *** Ss
oF Fy, 5 =
a Hi Hie“SuPREME COURT OF THE STATE OF HARA ra
PHILLIP C. HOYLE AND TERESA A. HOYLE, Plaintiffs-Appellants,
KAUPULEHU LAND, LLC, a Hawai'i Limited Liability Company,
Defendant-Appellee,
and
KAUPULEHU LAND, LLC, a Hawai'i Limited Liability Company,
Defendant and Third-Party Plaintiff-Appellee,
KAMUELA P & D, INC., a Hawai's corporation, Third-Party
Defendant-Appellee.
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 02-1-0393)
ORDER DISMISSING APPEAL
(By: Nakayama, J. for the court!)
upon review of the statements supporting and contesting
jurisdiction and the record, it appears that the circuit court’s
March 9, 2005 order granting summary judgment on the complaint
was not reduced to a separate judgment, as required by HRCP 58.
See Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai't 115,
869 P.2d 1334 (1994) (an order that resolves claims in a circuit
court civil case is not appealable unless the order is reduced to
a separate judgment pursuant to HRCP 58). Thus, the appeal of
the March 9, 2005 order is premature and we lack jurisdiction.
‘Therefore,
Sconsidered by: Moon, C.J.» Levinson, Nakayama, Acoba, and Duffy,
os.
qa
‘*** NOT FOR PUBLICATION ***
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, July 29, 2005.
son tHe cours: #
&
Peseta anol end
ie
Associate Justice
|
60d75fc2-ac40-4ab4-a2e5-5bbfa4a3e423 | Hawaii Medical Service Association v. The Insurance Commissioner | hawaii | Hawaii Supreme Court | *** NOTFOR PUBLICATION ***
|
Oly 8
No. 26636
IN THE SUPREME COURT OF THE STATE OF HAWATE:S
HAWAII MEDICAL SERVICE ASSOCIATION, Appellant-Appellant,
THE INSURANCE COMMISSIONER and the DIVISION OF INSURANCE
of the DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, STATE
OF HAWAI'I; and RENNE CHAPMAN, AS PERSONAL REPRESENTATIVE FOR
‘THE ESTATE OF GORDON CHAPMAN, (Deceased),
Appellees-Appellees.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV, NO. 03-1-2235)
(By:| Moon, c.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
Appellant-Appellant Hawaii Medical Service Association
(MSA) appeals from the June 9, 2004 final judgment of the
Cirevit Court: of the First Circuit.’ Among its points of error,
HNSA contends that, in affirming the October 8, 2003 order of the
Insurance Conmissioner (Commissioner), the circuit court erred
when St concluded that the external review procedure under
Hawai'i Revised Statutes (HRS) § 4326-6 (Supp. 2000) is not
preenpted by the Employee Retirenent Income Security Act of 1974
(ERISA), 19 U.S.C. $§ 1132(a) and 1144(a).
Upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advocated and the issues raised, we conclude that
‘The Honorable Eden Elizabeth Hito presided over this matter.
oats
*** NOT FOR PUBLICATION ***
there are insufficient facts in the record to draw a legal
conclusion whether decedent Gordon Chapman’s managed care plan,
HSA’ s Health Plan Hawai'i Plus Health Maintenance Organization
(the Plan), was or was not covered, pursuant to 29 U.S.C. § 1002-
1003 (2000),? by ERISA. See Hawaii Mamt, Alliance Ass'n v. I
comms (hereinafter, HMA], 106 Hawai'i 21, 27, 100 2.34 952, 958
(2004) (holding that @ health plan is an employee benefit plan
within the scope of ERISA if it is maintained by the
participant's employer). Therefore, the case must be remanded to
the Commissioner for further development of the factual record on
that issue
We also hold, however, that if the Plan was covered by
ERISA, the Conmissioner’s October 8, 2003 order must be vacated
and the case dismissed. In HMAA, we held that ERISA preempts
Hawaii's external review law, HRS § 432B-6; as a result, HRS
§ 4328-6 does not apply to ERISA-covered plans. 106 Hawai'i at
34-35, 100 P.3d at 965-66. If the Plan was an ERISA-covered
plan, then the Commissioner lacked jurisdiction to consider the
+ 29 u.S.c. § 1003(a) (2000) provides, inter alia, that the provisions
of ERISA “shall apply to any employes benefit plan if it is established or
aintained . . . by any employer engaged in comerce or in any industry or
Detivity affecting comerce” and is not subject to any exemptions enumerated
in 28 Dracc. § 1003(b) (2000) (excluding, inter alia, governmental and. church
plans from ERISA coverage). 23 'U.5.C. § 1002 (2000) in turn provides the
Gefinstions of "employee benefit plan,” “employee,” and other key terms used
in section 1003.
*** NOT FOR PUBLICATION ***
external review request and the circuit court lacked jurisdiction
to affirm the Conmissioner’s order. ‘Therefore,
IT IS HEREBY ORDERED that the circuit court's June 9,
2004 final judgment is vacated and this case is remanded to the
circuit court with instructions for the circuit court to, in
turn, temporarily remand this case back to the Commissioner for
development of the factual record relevant to ERISA coverage,
including: (1) the identity and nature of the entity that
established and maintained the Plan (i.e, who purchased the
coverage from HMSA); (2) whether Gordon Chapman was its employee;
and (3) any other facts relevant under 29 U.S.C. $ 1002-1003.
If, after the Commissioner enters findings in this regard and the
parties have briefed the issue, the circuit court makes the legal
determination that the Plan was covered by ERISA, the circuit
court is instructed to (a) vacate the Commissioner's October 8,
2003 order, and (b) enter an order dismissing the case for lack
of subject matter jurisdiction.
DATED: Honolulu, Hawai'i, August 18, 2005.
on the briefs: Gop
Ellen Godbey Carson and BG.
Dianne Winter Brookins s
(of Alston Hunt Floyd & rawr
Ing) for appellant-appellant
Hawaii Medical Service
Association
—
Kram # Dedoys
*** NOTFOR PUBLICATION ***
Arleen D. Jouxson and
Rafael G. Del Castillo
(of Jouxson-Meyers &
Del Castillo) for appellee-
appellee Renne Chapman,
as Personal Representative
for the Estate of Gordon
Chapman (Deceased)
Girard D. Lau,
Deputy Attorney General,
for appellee-appellee
The Insurance Commissioner
and the Division of Insurance of
the Department of Commerce
and Consuner Affairs, State
of Hawai'i
|
b230831b-729d-474c-bfa8-244a89a58b2f | In re Doe, born 04/29/2002 | hawaii | Hawaii Supreme Court | NOS. 26348 & 26349
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
80-018 L~ var soz
tn the Interest of
JOHN DOE, Born on April 29, 2002. |» =
In the Interest of
DOE CHILDREN:
JANE DOE, Born on May 7, 199
JOHN DOB, Born on April 4, 1993;
JANE DOE, Born on May 18, 2000.
eS
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-S NOS. 02-08252 & 00-06974)
and
DENy) a FOR oF
(By: Moon, C.J., for the court!)
Petitioner-Aunt/Intervener-Appellant’s application for
weit of certiorari, filed June 27, 2005, is denied.
DATED: Honolulu, Hawai'i, July 7, 2005.
Carl Debo, for petitioner- FOR THE COURT:
aunt /Invetvener-appeliant,
on the weit Bp
i acice
* considered by: Moon, ¢.J., Levinson, Nakayama, Accha, and Duffy, ov.
aa
|
90dcae5a-7ca4-409e-8bce-9302b7dcf42a | Office of Disciplinary Counsel v. Yoshimura | hawaii | Hawaii Supreme Court | No, 24947
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
JON CURTIS YOSHIMURA, Respondent.
(ope 99-511-6341) 2518
(By Moon, €.3., Levinson, Rekayase, Aeaba, and Duffy, 33.)
pen consideration of (1) the September 17, 2002
Aeeidavit of Respondent Jon Curtis Yoshimura (Respondent
Yoshimura) pursuant to Rule 16(@) of the Rules of the Suprene
court of the state of Hawas't (RSCH), (2) Respondent Yoshimura’
arch 29, 2005 petition for reinstatement to the practice of ev,
(3) the May 10, 2008 order denying without prejudice Respondent
Yoshimura’ March 29, 2008 petition for reinatatenent to the
practice of law, (4) Respondent Yoshimura’s July 6, 2005
supplemental affidavit in support of Respondent Yoshimura’ s
petition for reinstatenent, and (5) the record, it appears that
Respondent Yoshimura has substantially complied with the
requixenents of RECH Rule 2.26(@) and RSCH Rule 2.17(b).
therefore,
It 18 HEREBY ORDERED that Respondent Jon curtis
Yoshimura (attorney nusber 6101) ia 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 Rule 17. This order is effective upon entry.
DATED: Honolulu, Hawai'i, July 18, 2005.
Gor
AEM —
Penta, Crest ane
|
c4d13619-fb25-448d-aa7e-453f85bb792f | In re Writs Filed by Lee | hawaii | Hawaii Supreme Court | 5 VASE
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
Ne
IN THE MATTER OF WRITS FILED BY ROBIN M.S. LEE
ROBIN M.S. LEB, Petitioner
DARRYL N. PHILLIPS, Clerk of the Supreme Court, Respondent
ROBIN M.S. LEB, Petitioner
FIRST CIRCUIT COURT, Respondent
He 2 ONY SL
ROBIN M.S. LEE, Petitioner
CLERKS OF THE FIRST CIRCUIT COURT, Respondents
ROBIN M.S. LEE, Petitioner
STATE OF HAWAI'I and FAMILY COURT, Respondents
ORIGINAL PROCEEDING
(CIV. NO, 04-1-1263)
‘ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Robin M.S. Lee’s writs
of mandamus, the papers in support, and the records and files
gas
herein, it appears Petitioner is represented by counsel in the
underlying criminal case. Therefore,
IT 1S HEREBY ORDERED that the writs of mandamus are
dismissed.
IT IS FURTHER ORDERED that the supreme court clerk's
office shall file no further documents related to the underlying
criminal case unless submitted by Petitioner's court-appointed
attorney or otherwise ordered by this court.
DATED: Honolulu, Hawai'i, August 23, 2005.
Robin M.S. Lee,
petitioner pro se
on the writs Ger
Decetes Cantey AT
Baee—™*
{onan €. Bibby Oe
|
51f470d4-37bb-4cb6-b19f-be3ec89c374c | Lighter v. Yuen | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 27186 es
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
oad
Appellant-Appellant,
CHRISTOPHER J. YUEN, Planning Director, County of Hawai'i,
‘Appellee-Appellee.
APPEAL FROW THE THIRD CIRCUIT COURT, HILO DIVISION
(G1V. NO. 4-1-0224)
(ay: Nakayanay 3s Por the court!)
Upon review of the record, it appears that judgment has
not been entered on the circuit court's February 24, 2005
decision and order. Thus, this appeal is premature and we lack
jurisdiction. See HRCP 72(k) and 58; Jenkins v. Cades Sc!
Fleming & Wricht, 76 Hawas's 115, 869 P.24 1334 (2994).
teretore,
11 18 HEREBY ORDERED that this eppeal is dismissed tor
lack of appellate jurisdiction.
DATED: Honolulu, Hawas'i, July 15, 2005.
FOR THE COURT:
Benne Onan
Associate Justice
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
ga.
|
6b40ccfe-3ea5-486f-a917-f3a2edffbfcd | Hines v. Hines | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION *
No. 27131
WW) $1 Tr SOOZ
gas
JAMES J. HINES, Plaintiff-Appellee,
02 °6 Hi
KIMBERLY K, HINES, Defendant-Appellant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-D NO, 03-21-3701)
ERD!
(By: Nakayama, J. for the court!)
upon review of the record, it appears that 2 final
decree on the complaint for divorce has not yet been entered in
FC-D No. 03-1-3701. The February 3, 2005 orders are orders
granting and denying pre-decree relief that did not finally end
the proceeding on the complaint for divorce. The February 3,
2005 orders are not appealable final orders and the app.
1 of the
orders is premature. Thus, we lack jurisdiction over this
appeal. See HRS § 641-1(a). Therefore,
IP 18 HEREBY OROERED that thie appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai‘, July 15, 2005.
FOR THE COURT:
Poser |
Associate Justice
‘considered by: Moen, C.J., Levinson, Nakayama, Acoba, and Duffy,
a3.
|
11007a97-3ef5-49e8-a7d3-aa3bdb54126a | State v. Trueman | hawaii | Hawaii Supreme Court | S02
No. 26007
I-
VW,
“OV THE SUPREME COURT OF THE STATE OF HAWAI'T
02
“O'" STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
JAMES TRUEMAN, Petitioner/Defendant-Appellant
(NO. 26007; CR. NO. 92-3018)
Petitioner/Petitioner-Appellant
JAMES TRUEMAN,
STATE OF HAWAI'I, Respondent /Respondent~Appellee
(No. 26077; 8.P.P, NO. 02-1-0082)
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 92-3018 & S.P.P, NO. 02-1-0082)
(gy: Acoba, J., for the court’)
‘The Application for Writ of Certiorari filed on
July 21, 2005 by Petitioner/Petitioner-Appellant James Trueman is
hereby denied.
DATED:
Honolulu, Hawai‘, August 1, 2005.
FOR THE COUR’
Resociate Justice
James Trueman, petitioner/
petitioner-appellant, pro se,
on the writ.
Acoba, and
+ considered by: Moon, C.J, Levinson, Nakayama,
puffy, 39
|
f0f4a338-5e8e-481e-ba63-8e5a14c29078 | State v. Sorino. ICA Opinion, filed 06/29/2005 [pdf], 108 Haw. 115. Concurring Opinion by. J. Nakamura [pdf]. Concurring and Dissenting Opinion by Acting C.J. Watanabe [pdf]. S.Ct. Order Granting Application for Writ of Certiorari, filed 08/03/2005 [pdf], 108 Haw. 160. | hawaii | Hawaii Supreme Court | 4#* FOR PUBLICATION *#*
IN THE SUPREME COURT OF THE STATE OF HAWAI‘E®
LI on soaz
=== 000
oats
STATE OF HAWAI'I,
Plaintiff-Appellee-Respondent,
AL
GERVEN SORINO,
Defendant~Appellant-Petitioner.
No, 26009
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 98-0347)
AUGUST 17, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY LEVINSON, J.
on July 28, 2005, the defendant-appellant-petitioner
Gerven Sorino filed an application for a writ of certiorari,
requesting that this court review the Intermediate Court of
Appeal''s (ICA’s) published opinion [hereinafter, “the ICA's
opinion”) filed on June 29, 2005, affirming the July 2, 2003
order of the circuit court of the first circuit, the Honorable
Sandra A. Sinms presiding, denying Sorino’s April 8, 2003 motion
(2) to set aside the August 11, 1998 judgment, guilty conviction,
and probation sentence, (2) to allow defendant to withdraw his
plea of no contest, and (3) to set the case for trial
(hereinafter, “notion to set aside”) [collectively hereinafter,
“the order denying Sorino’s motion to set aside”). See State vw
Sotino, No. 26009, slip op. (Hawai'i App. June 29, 2005). on
August 3, 2005, we granted certiorari.
‘**# FOR PUBLICATION *#*
In his application, Sorino contends (1) that “the
majority of the [ICA] gravely erred when it affirmed the circuit
court’s order denying . . . Sorino’s motion to [set aside] where
the circuit court failed to comply with [Hawai'i Revised Statutes
(HRS)] § 802E-2 [(1993)"] so that withdrawal of . . . Sorino’s
plea was mandatory pursuant to HRS $ 802E-3 [(1993)}”;? and (2)
that “the majority opinion of the [ICA] is obviously inconsistent
with this court’s decision in State v, Nauyen{,]” 81 Hawai'i 279,
916 P.2d 689 (1996).
As discussed infra in section ITT, we granted
certiorari because the ICA's opinion suffers from a “grave
error(] of law” and is “inconsisten(t]” both with Nauyen and its
own reasoning. We therefore hold, consonant with our reasoning
in Nguyen, that Sorino is entitled to the protections of HRS
* ns § 8028-2 provides:
Court advisement concerning alien status required. Prior to
acceptance of a plea of guilty of nole contendere to any offense
punishable as a Crine under state lax, except offenses designated as
infractions under state lav, the court shall administer the following
advisement on the record to’ the defendant?
TE you are not a citizen of the United States, you are hereby
advised that conviction of the offense for which you have been
charged may have the consequences of deportation, exclusion from
admission fo the United States, of denial of naturalization
Pursuant to the laws of the United states.
Upon request, the court shail allow the defendant additional tine
to consider the appropriateness of the plea in light of the advisenene
as described in this section:
% RS § 8028-3 provides:
Failure to advise; vacation of judgment. If the court fails to
advise the defendant as required by section 8026-2 and the defendant’
shows that conviction of the offense to which the defendant piesded
guilty or nolo contendere nay have the consequences for the defenant of
Geportation, exciusion from admission to the United States, of denial of
naturalization pursuant to the laws of the United States, on defendant's
motion, the court shall vacate the Judgment and permit the defendant to
withdraw the ples of guilty or nolo contendere, and enter a plea of not
guilty. Absent a record that the court provided the advisenent required
by this section, the defendant shall be presumed not to have received
the required advisement.
4## FOR PUBLICATION *##
§§ 8026-2 and 802E-3, as well as Hawai'i Rules of Penal Procedure
(HRPP) Rule 11 (c) (5) (1998).? Accordingly, we (1) reverse the
ICA's opinion, (2) vacate the July 2, 2003 circuit court order
denying Sorino’s April 8, 2003 motion to set aside, and, (3)
pursuant to HRS §§ 802E-2 and 802E-3, remand this matter with
instructions to the circuit court (a) to vacate the judgment, (b)
to permit Sorino to withdraw his no contest plea and enter a plea
of not guilty, and (c) to conduct further proceedings consistent
with this opinion.
1. BACKGROUND
‘The following facts, adduced before the circuit court
and recited by the ICA in its lead opinion, are undisputed in
Sorino’s applicatior
on April 13, 1998, Sorine pled ne contest to
‘ecroristie Theeatening in the First Degree in vielation of
HRS. § 707-716(2) (4) (1993) .("] The circuit court sentenced
Sorine to five years of probation, and Judgment was entered
fon August 11, 1998. On July 9, 2002, the circuit court
Tevoked Sorino's probation, sentenced him to five years of
2 Rep Rule 11(e) provides in relevant part as follows:
(e) Advice to defendant. The cour’
shall not accept a plea of
guilty or pole sontendere without first addresaing the defendant
Personally in open court and determining that he understands the
following!
isi that 4£ ne ds not a citizen of the United states, a
conviction of the offense for which he has been charged may have
the consequences of deportation, exclusion from admission to the
United states, or denial of naturalization pursuant to the laws of
the United states.
‘rs § 707-716 provides in selevant part:
§ 707-716 Terzoristic threatening in the fizet degree. (1) A
person commits the offense of terroristic threatening in the first
Segre if the person comits terroristic threatening:
ii With the use of a dangerous instrument.
(2) Tervoristic threatening in the first degree is 2 class C
felony.
*#* FOR PUBLICATION *
Sgprisonment, and filed its Order of Resentencing/Revocation
of Probation:
On April @, 2003, Sorino filed the Motion to Withdraw
Plea, asking the clreult court to allow him to withdrew his
no contest plea and to set his case for trial Ton the
grounds: 1) that the Court did not advise Defendant of his
Smnigration status prior to accepting Defendant’ s plea of 20
contest and 2) manifest injustice.” Sorino argued that the
cizoust court had failed to advise him pursuant to HRS
§ 8028-2, (gee supra note 1,] and, therefore, pursuant to
Wns § 802z-3, (gee supra note 2,] the circuit Court was
mandated to vacate the Judgment, permit him to withdraw his
plea of no contest and enter a plea of not guilty, and set
The case for trial.” Attached co the motion was the April
23, 1998 transcript of proceedings at which Sorino hed
entered his no contest plea and a copy of « “Notice to
Appear In removal proceedings under ection 240 of the
Yemigration and Wationality Act” (Notice) from the
Immigration and Naturalization Service (2KS). (served on
Sorine on September 19, 2002). The Notice stated that
Scrine was departeble because he was not a citizen oF
ational of the United States and because he had been
convicted of Tecroristic Threatening in the First Degree
(committed against a person with whom he shared a child in
common} on August 11,1998 in the circuit court.” The Notice
farther stated that Sorino was subject to removal from the
United states pursuant to §237(a) (2) (B) (4) of the
Immigration and Naturalization Act, as amended, becau:
Sorino was an alien who, after entcy, had been convicted of
“a crime of domestic violence, 2 crite of stalking, of @
crime of child abuse, child neglect, or child abandonment.”
on May 28, 2003, the state filed a memocandus opposing
the Motion to Withdraw Plea, arguing that Serine did "not
held an absolute right to withdraw his plea” end there had
been no showing of “manifest injustice” entitling serine to
withdraw his pies. The State argued that the cecord showed
Serine had been advised by the circuit court and fully
understood the immigration consequences ef his plet
‘On June 2, 2003, the circuit court held a hearing on
the Motion to withdraw Plea. The circuit court issued ite
July 2, 2003 order denying the Notion to Withdraw Plea based
fon the’ following findings of fact and conclusions of law:
1. on March 20, 1898, Defendant’ s counsel requested
a nisdeneandr chatge for his client because of
“immigration consequences.”
2, on April 3, 1998, the court, by way of a
[p)ee-trial Conférence, advised Defendant’ s
counsel to contact the Innigrstion and
Naturalization Service regarding imigration
consequences for his client.
3. On Apel 13, 1998, Defendant was warned on the
record that his piea could have a bearing on his
relationship with the Immigration and
Naturalization Service: and based upon
colloquy with the court, Defendant was
sufficiently advised and fully understood the
potential inigration consequences of his plea.
4** FOR PUBLICATION **1
4. On April 13, 1998, Defendant signed a change of
Plea form which warned him that if he was not @
citizen of the United States, a conviction might
have the consequence of deportation.
CONCLUSIONS OF Law
1. The Court ts not required to resort to a
ritualistic Litany when advising a Defendant of
the consequences of hie plea. state v.
Cornelis, 68 Maw. 644, 727 P.2d 1125 (1986).
The Court may use additional sources other than
the Defendant to find » sufficient basis for his
1 67 Haw. 573, 698 P28
plea.
a7 (ses)
3. Based upon the Findings of Fact above, Defendant
hat failed to make a showing of manifest
injustice and therefore cannot withdraw his
plea. 776 Hawaii 408, 879 P.2d
513 (assal
ICA's lead opinion, slip op. at 3-5.
‘The TCA further noted that, at the April 13, 1998 plea
hearing,
[elather than reciting the advisement contained in BREP Rule
1 (ce) (5)(, see supra note 3,] and HRS § B0ZE-2, the circuit
court stated:
(THE COURT:) And then, lastly, you do not have
to tell me if you are or are not, but I'm required to
tell you that if you're not a citizen, this plea may
have 4 bearing on whatever relationship you have with
the Innigration end Naturalization Service. Do you
Understand that?
[Sorinol Yes
slip op. at 9. It is noteworthy (1) that the circuit court
Your Honor.
also asked Sorino (2) whether he had read the change of plea form
in its entirety, (b) whether he understood the form that he had
signed, and (c) whether he had any difficulty understanding and
speaking English and (2) that Sorino answered questions (a) and
(b) in the affirmative and responded that he could understand and
speak English.
on August 1, 2003, Sorino timely filed 2 notice of
appeal from the July 2, 2003 order denying his motion to set
aside. As recited by the ICA's lead opinion,
{elm appeal, Sorino contend{ed) (1) {that} the etzoutt court
erred unen it concluded it had complied with the requirement
Of Hawai'l Revised Statutes (HRS) § 802E-2 (1993) that it
#4 FOR PUBLICATION *##
adninister the statutory advisement on the record to Sorinoy
(2) (that) the circuit court erred when it denied [nis
motion to set aside) . .. because s grant of the mation was
mandatory, pursuant to ins § 8028-3 (1993), where the court
failed to’ comply with HRS § 802E-2; and (3) [that] Sorsno
was denied effective assistance of counsel with respect te
the Imotion te set aside]. because his counsel failed
to provide any legal authority other than HRS $§ €02E-2. and
GozB-3 and his counsel argued chat the circuit court should
apply the manifest injustice standard.
ICA's lead opinion, slip op. at 1-3.
On June 29, 2005, the ICA issued its published opinion
in the present matter. Writing for the majority, the Honorable
Daniel R. Foley noted (1) that the circuit court failed to recite
the advisement required by HRPP Rule 11(c) (5) and HRS § 8025-2,
ida slip op. at 9, and (2) that “{HRPP] Rule 11(c) (5) adopts the
advisement contained in HRS § 8028-2, making it clear that the
court shall address the defendant personally in open court and
determine that the defendant understands the advisement contained
in (HRPP] Rule 11(c) (5) and HRS § 802E-2." Id, (citing Nauven,
61 Hawas‘i at 268, 916 P.2d at 698). Judge Foley reasoned and
held in relevant part
Sorino did . . . sign a plea form that contained the
required advisenent: ‘rn anewer to the cizeust coure™s
1, Sorino answered that he had read the ples form
lauyer, understood it, and had no questions about
Sorino acknowledged that he understood end spoke
Nauven, the Hawas's Supreme Court discussed the
relationship among HRS $6 802E~2 and 0028-3 and HNPP Rules
11 (6) (5) end 32(d) [11998)].() Although Nauven concerned a
withdrawal of plea pursuant to HRPP Rule 32(d) peice to the
effective date of HRS Chapter £02E, the Hawai Supreme
Court, in quoting HRS § BO2E-3, indicated that HRS § G02E-3,
not HREP 32(d), would govern the withdrawal of a plea based
fon a court's failure to comply with the advisement required
* inpe Rule 32(d) provides:
(G) withdrawal of plea of guilty. A motion to withdeaw a plea of
guilty or of nolo contendere may be nade only before sentence is inpos
of Smposition of sentence is suspended; but to correct manifest
injustice the court after sentence shall set aside the judgment of
conviction and permit the defendant to withdrew his pit
* FOR PUBLICATION #*#
under HRS § 6026-2:
Nevertheless, Nguyen correctly asserts
chat @ statute, HRS Chapter 8028, currently
Fequires courts, prior to accepting a plea of
ole contendere, to advise defendants that, if
they are not citizens of the United stat
thelr convictions “may have the consequences of
deportation, exclusion from admission to the
United States, or denial of naturalization
pursuant to the laws of the United states.” RS
§ 602-2 (1993). Effective September 2, 1968,
an amendnent to HRPP Rule 11(c) (5) also’ requires
Courts to determine that auch defendants
Understand the collateral consequence of
possible deportation. “If the court fails to
Sdvise the defendant ae required by section
302e-2 and the defendant shows that conviction
of the otfense co which the defendant pleaded
o.pele contendere may have the consequence
for ine defendant of deportation, .... the
oust shall vacate the judgment.” “HRs'§ 8028-3
(assay.
Nguyen, 81 Hawai'i at 286-89, 916 P.2d at 698-99 (brackets
and footnotes omitted).
‘The circuit court therefore erred as a matter of law
in considering Sorino’s Notion to withdraw Plea under HRP
Rule 32(d) as opposed to HRS § 8028-3.
Dader tee § 6022°3, the ci ss se
i aay HAS
#t0ze-2, that advisement was to-be done by the cirouie
Serine personally in open court
‘SeterRining he understood that if he was “not «citizen of
She United Sestes, a conviction of the offense for which ne
‘on sdxisgion to the United Sea
“Alehouah the cireust court did not recite this
2 sly to Sorina, Sori
‘in_tesponse to an_inguiry trom the circuit court, that he
bed read thie advisement with bie attorney and understood
Ak Althovah the circuit court applied the wrong standard
n'denuing Serine’: Notion to Withdraw Ples; under the
‘Mandatd_set_forth in HAS $ O02E-2, Sorine’a motion should
je been denies
Sorino”s argument that his trial counsel was
ineffective in the filing and arguing of Sorine's. (motion to
set aside] is without merit.
Ids, slip op. at 10-11 (emphases added). Based on the foregoing,
the ICA affirmed the circuit court’s July 2, 2003 order denying
Sorino’s motion to set aside. Id. at 12.
The Honorable Craig H. Nakamura concurred separately,
‘*## FOR PUBLICATION *##
“agree[ing] with Judge Foley's conclusion that the circuit court
satisfied the requirements of [HRS] § 802E-2 and [HRPP) Rule
11{c) (5) in accepting [Sorino’s] no contest plea{,)” but
asserting that, insofar as “this conclusion disposes of Sorino’s
appeal regardless of whether the standard for plea withdrawal set
forth in HRS § 802E-3 or in HRPP 32(d) applies,” he “would not
reach the issue of which standard applies in Sorino's case.”
Judge Nakamura therefore “concur{red] in the result reached by
Judge Foley and join{ed) in his conclusion that the circuit
court's plea colloquy satisfied the requirements of HRS § 802E-2
and HRPP Rule 11(c) (5)(,]” but “express{ed] no opinion on the
relationship between HRS § 8025-3 and HRPP Rule 32(¢).”
‘The Honorable Corinne K.A, Watanabe, acting as Chief
Judge of the ICA, concurred separately with and also dissented
from Judge Foley's lead opinion. Judge Watanabe agreed with
Judge Foley (1) that the circuit court “erred by considering
+ Sorino’s {motion to set aside] . . . under [HRPP] Rule
32(d) instead of (HRS) § 802E-3[,]” (2) that “HRPP Rule 11(c) (5),
which was adopted by the Hawai'i Supreme Court to implement HRS
chapter 802£, ‘mak(es] it clear that the court shall address the
defendant personally in open court and determine that the
defendant understands the advisement contained in [HRPP] Rule
11 (c)(S) and HRS § 802-2," and (3) that “the circuit court
failed to ‘recit{e] the advisement contained in HRPP Rule
11(c) (5) and HRS § 802E-2" to Sorino in open court.” Concurring
and dissenting opinion, slip op. at 1 (some brackets added and
some in original). Nevertheless, Judge Watanabe “respectfully
disagree(d] with the majority's conclusion that Sorino’s motion
was properly denied.” Id.
Ides
slip
‘#4 FOR PUBLICATION *#*
Judge Watanabe explained, inter alia that,
(Jn ther] view, the language of HRS § 8025-2 is plain and
Unambiguous. Te mandated that the circuit court give a very
explicit edvisenent to Sorine "on the record” before
accepting his no-contest plea. The circuit court clearly
Gid not recite the advisement to Sorin and, therefore,
Violated the terme of HRS § 8025-2.
The Language of HRS § 8022-3 is also plain and
unambiguous in setting forth the consequences that must
follow Lf 4 court fails to give the statutory advisement
Since the circuit court failed to give Sorino the
statutory advisement required by HAS § 8022-2 snd Sorina
Showed that his conviction had deportation consequences, as
evidenced by the deportation proceedings initiated against
him by the Inigration and Naturalization Service on
Septenber 19, 2002, (Judge Watanabe] would conclude that MRS
$ 8028-3 required the circuit court to "vacate the judgment”
and permit Sorino to withdraw his no-contest. plea
op. at 3. Judge Watanabe also asserted that
(t]he majority overlooks the circuit court’s failure to
comply with HRS § 8026-2 and WAPP Rule 11(c) (5) by relying
fon the fact that Sorino read the advisement on a preprinted
written change of plea form. This written advisement.
however, did not satisfy ERs € 4028-2 because St was Dot
Ss cuise, the written edvisenant did not
gatiaiy HAPP Rule 11(c1(5) in chat it was not nade
Spersonally in-open court(.l" gee MRPP Rule Ii(c) (9).
‘Bh othersise gufficient advisement contained in
written change of plea form does not meet the expres!
Fequirenents of HRS § B02E-2.
Eender meaningless the Leisiature's comand that “the court
shell adninteter the following sdvicenent' on the Fecord to
he dafendantll= Rs § e02n-2.
Ida, slip op. at 6-7. Based, inter alia, on the foregoing
reasons, Judge Watanabe stated that she would have held “that
Sorino was entitled to the remedy provided by HRS § 8025-3.”
Ida, slip op. at 10.
on July 28, 2005, Sorino timely filed his application
for writ of certiorari.
an, VIEW
Appeals from the ICA are governed by HRS $ 602-59(b)
(1993)," which prescribes that
fan application for writ of certiorari shall tersely
9
‘### FOR PUBLICATION ##*
state its grounds which must include (1) grave errors
Of law of of fact, or (2) obvious inconsistencies in
the decision of the intermediate appellate court with
that of the supreme court, federal decisions, oF its
own decision, and the magnitude of such erro.
Inconsistencies dictating the need for further
Ante Jane Doe, Born on June 20, 1995, 95 Hawai'i 183, 189, 20
P.3d 616, 622 (2001).
1.
IIT. DISCUSSION
‘As we have noted, Sorino contends in his application:
(2) that “(t}ne majority of the ICA gravely erred by affirming
ide]
the circuit court's order denying the motion [to set
because the circuit court failed to comply with the plain,
unambiguous and explicit meaning of HRS § 8028-2,” see supra note
1; and (2) that “[t]he majority opinion of the ICA is also
obviously inconsistent with this [clourt’s decision in (Nauven].””
We agree and further note that the ICA majority has reached a
result that is inconsistent with its own reasoning.
vitihe interpretation of a statute. .
Sa @ question of Inv reviewable ae nove.”
iAcang, 04 Hawai't 1, 10, 920 fad #43,
(T3s6) (quoting state 'v. Camera, 81 Hawat's 324,
329, 916 F.2d 1225, 1230 (1996) (citations
onitted)).” Seq alge State v. Tovemura, 60
Hawai'i 8, 16, 904 P-2d 893, 903 (1995)7 state
weniiga, "79 Hawai't i, 3, 807 P.24 928, 990.
(3995); state vs Nakata, 76 Hawai'i 360, 365,
878 F.2d 699, 708 (1994). .
Gray vi Adninistestive Dizector of the court, 64 Hawai'i
158, 144, 931 P.24 580, $86 (1997) (sone brackets sdded and
sone in Original). See also State v. sete, 64 Hawa! 229,
236, 933 F.2d 66, 73 (1997). Furthermore, our statutory
Construction is guided by established cull
certain and aive effect to the 2
Jegislature, whi bs
She Language contained in the atetute itself. And we
must read statutory language in the contest of the
sntire statute ond construe it in a manner consistent
sith its purpose.
Gray, 84 Hawai‘i at 148, 931 P.24 at $90 (quoting State v.
Toyomura, 60 Hawai's 8, 18-19, 904 P.2d 893, 903-04 (1995)]
(brackets and ellipsis pointe in original) (footnote
10
#4 FOR PUBLICATION *##
omitted).
State v. Young, 107 Hawai'i 36, 39-40, 109 P.3d 677, 680-81
(2005) (quoting State v. Kaua, 102 Hawai'i 1, 7-8, 72 P.3d 473,
479-480 (2003) (quoting State v. Rauch, 94 Hawai'i 315, 322-23,
13 P.3d 324, 331-32 (2000) (quoting State v. Kotis, 91 Hawai‘
319, 327, 984 P.2d 78, 86 (1999) (quoting State v. Dudoit, 90
Hawas't 262, 266, 978 P.2d 700, 704 (1999) (quoting State vs
Stocker, 90 Hawai'i @5, 90-91, 976 P.2d 399, 404-05 (1999)
(quoting Ho v. Leftwich, 88 Hawai'i 251, 256-57, 965 P.2d 793,
798-99 (1998) (quoting Korean Buddhist Dae Won Sa Temple vs
sullivan, 87 Hawai'i 217, 229-30, 953 P.2d 1315, 1327-28
(1998)))))1)) (emphasis added) .
‘The lynchpin of the ICA’s lead opinion lies in the
following reasoning: Notwithstanding that “the circuit court did
not recite [the HRS § 802E-2) advisement orally to Sorino,”
because “Sorino did state in open court, in response to an
inquiry from the circuit court, that he had read (the) advisement
with his attorney and understood it,” “under the standard set
forth in HRS § 8028-3, [see supra note 2,] Sorino’s motion (to
set aside] should have been denied.” ICA’s lead opinion, slip
op. at 11 (emphasis added). The “standard set forth in HRS
§ 8026-3” mandates, however, that the circuit court either
‘advise the defendant as required by [HRS] section 602E-2" or
‘vacate the judgment and permit the defendant to withdraw the
plea of . . . nolo contendere, and enter a plea of not guilty.”
In that connection, the plain language of HRS § 802E-2 states
that “the [circuit] court shall administer the... advisement
on the record to the defendant” (emphasis added), and, as noted
supra, the ICA's lead opinion concedes that the circuit court
a
‘*#* FOR PUBLICATION #44
failed to recite the advisement to Sorino. Thus, it defies logic
to hold that the circuit court’s inquiry as to whether Sorino had
read and understood the advisement somehow satisfied HRS § 8025-3
when HRS § 802E-3 requires compliance with HRS § 802E-2 (ice.,
the administration of the advisement on the record to Sorino).
Further to the foregoing, as we stated in Nouyen,
soze! 21) on 4
accent: Lea of 221
‘convictions ‘nay have the conseauences of deportanion,
rt Eo the laws of the United states
ined by section €0ZE-2 and the defenasnt
ctor eo
0 2 the nee:
fhe setendant of deportation, the court -shall-vecate
She tudament i" nes § BOE, st)
81 Hawai" at 288-89, 916 P.2d at 698-99 (emphases added)
(footnotes omitted).
The ICA's lead opinion therefore suffers from (1) a
grave error of law -~ by way of its failure to apply the plain
language of HRPP Rule 11(c) (5) and HRS $§ 802£-2 and 802E-3 --
and (2) obvious inconsistencies with (a) our decision in Nguyen
oning. In re Jane Doe, Born
and (b) the lead opinion’s ovn x
© ggIt if undisputed that, as noted in the ICA's lead opinion, slip
op. at 4, for purposes of HRS § 802E"3, Sorino's conviction of the offense
tezroristic threatening in the first degree “may have the consequence|) for
[Sorino] . . . of deportation «+ ss” line § 8021
Tt is noteworthy that, in addition to characterizing the
Provisions of HRS §§ 8025-2 and 802E"3, Nauven observed that *HAEP Rule
11(c) (5S) alse requires courts to determine that such defendants understand the
collateral consequence of possible deportation.” 1 Hawaii at 288, S16 faa
at 698 (enphasis added) (footnote omitted). In other words, not only are
courts required to adninister the HRS § 0038-2 advisenent to defendsnte, but
courts mist also ensure that such defendants understand the advisement, [de
In the present matter, the circuit court failed to administer che HAE
$ #026-2 edvisenent to Sorino. Thus, the circuit court's query as co whether
Sorino had read and understood the change of plea form in sts entirety failed
te satisfy HRFP Rule 11(c) (5) because, per Nauven, the recitation of vhe
advisement prior to the circuit court’s determinacion as to whecher the
defendant understands the advisement 1s required.
a2
FOR PUBLICATION *#*
on June 20, 1995, 95 Hawai'i at 189, 20 P.3d at 622, We hold,
consonant with our reasoning in Nauyen, that Sorino is entitled
to the protections of HRS §§ 802E-2 and 802E-3, as well as HRPP
Rule 11(c) (5).
IV. CONCLUSION
In Light of the foregoing analysis, we (1) reverse the
ICA's opinion, (2) vacate the July 2, 2003 circuit court order
denying Sorino’s April 8, 2003 motion to set aside, and (3)
pursuant to HRS § 802E-3, see supra note 2, remand this matter
with instructions to the circuit court (a) to vacate the
Judgment, (b) to permit Sorino to withdraw his no contest plea
and enter a plea of not guilty, and (c) to conduct further
Proceedings consistent with this opinion.
On the applicatio:
cynthia A. Kagiwada,
for defendant-appellant-
petitioner Gerven Sorino
BAM Lrnce—
Deveetee CT cele 4 rree
ak
aren «. Dubs the
3
|
5df165fc-a7d6-4893-96e0-630cb65a8757 | Office of Hawaiian Affairs v. State. Concurring Opinion by J. Acoba. S.Ct. Order Granting Motion for Reconsideration, filed 12/23/2005 [pdf], 109 Haw. 578. S.Ct. Order Correcting Reference to Civil Number Reflected in Case Caption of the Opinion of the Court, filed September 9, 2005, filed 04/13/2006 [pdf]. S.Ct. Opinion, filed 04/28/2006 [pdf], 110 Haw. 338. J. Acoba Concurring in the Result Only. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
=== 000 ---
OFPICE OF HAWAIIAN AFFAIRS, TRUSTEES OF THE OFFICE
OF HAWAIIAN AFFAIRS, Plaintiffs-Appellante/
Cross-Appellees,
STATE OF HAWAI'T, Defendant -Appellee/
(Cross-Appellant -
No. 26615
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO, 03-1-0505-07 (GwBC))
SEPTEMBER 9, 2005
MOON, C.J., LEVINSON, and NAKAYAMA, J5., and
CIRCUIT ‘suDGE HARA, IN PLACE OF DUFFY,’ J., RECUSED;
ACOBA, J., CONCURRING IN RESULT ONLY
OPINION OF THE COURT BY MOON, C.J
Plaintiffe-appellante the Office of Hawaiian Affairs
(OHA) and the Board of Trustees of OHA (the trustees)
Ihereinafter, collectively, the plaintiffs) appeal from the
Circuit Court of the First Circuit’s' May 19, 2004 final judgment
in favor of defendant-appellee State of Hawai'i (the State). on
appeal, the plaintiffs contend that the circuit court erred in:
(1) granting the state's motion to dismiss their first amended
‘The Honorable Gary W.8. Chang presided over the instant case.
*** FOR PUBLICATION ***
complaint (hereinafter, motion to dismiss]; (2) denying the
plaintiffs’ motion for leave to amend the first amended complaint
(hereinafter, motion to amend]; and (3) denying the plaintiffs’
motion to bifurcate the justiciable and nonjusticiable i
Presented in this case [hereinafter, motion to bifurcate]. For
the following reasons, we affirm the circuit court’s final
judgment .
1. BACKGROUND
A. The Creation of oHn*
As this court detailed in OHA I, 96 Hawai'i at 390, 32
P.3d at 903 and Yamasaki, 69 Haw. at 158-65, 737 P.2d at 449-53,
the State holds ceded lands’ in a public land trust for five
Purposes, one of which is “for the betterment of the conditions
of native Hawaiians[.J* QHA I, 96 Hawai'i at 390, 31 P.3d at 903
(citing Admiseion Act § 5(£)) (emphasis onitted). The State's
trust obligation to native Hawaiians is set forth in various
Provisions of the Hawai'i Constitution, including article xI!,
sections 4-6," wherein OHA was created and charged with managing
+ ____For amore detailed factual account of the historical
circumstances leading up to the creation of OHA and the public land trust
Giscussed herein, ang Office of Hawaiian Affaire v. State, 96 Yavai'i 360,
390, 31 P.34 $01, $03 (2001) (hereinafter, OWA 1], Trustece of OHA v.
Yanasaki, 69 Hav. 154, 158-65, 737 P.2d 446, 443-53, cert. Genied, 466 U.S.
58" (2907) (hereinafter, Yamasaki).
2, The ceded lande are defined in section $(b) of the Admission Act
of March 28, 1959, Pub. L. No. 86-3 §5, 73 Stat. , reprinted in, 1 Hava?
Revised statutes (uRS) § 90, 91-92 (1993) {hereinafter, Admission Act). Bee
GHAI, 96 Hawai'd at 390, 31 p.2d at 903 (citing Admiseion Act # 5(b))-
‘article x11, sections 4-6 provide:
(continued...)
*** FOR PUBLICATION **
proceeds derived from the ceded lands and designated for the
benefit of native Hawaiians. Additionally, article XVI, section
7 of the Hawai'i Constitution® requires the state to enact
«
Haw. const
Haw. Const.
-continved)
Section 4. The lands granted to the state of Hawaii
by section stb) of the Admission Act and pursuant to Article
XW, Section 7, of the State Constitution, excluding
therefrom lands defined aa savatlable lande" by section 203
of the Hawaiian Hones Commission Act, 1920, ae amended,
shall be held by the state as a public trust for native
Mavaiians and the general public:
OPPICE OF HAWAIIAN APFAIRS:
There is hereby established an office of
Co all the real and perscr
ide ‘or conveyed to it which shall be held in trust for
ative Mawaiians and Hawaiians. There shall be a board of
Erustees for the Office of Hawaiian Affaire (.)
POMERS OF BORRD OP TRUSTEES
Section. The Board of trustees of (OHA) shall,
exercise power ao provided by law: to manage and acninieter
the proceeds from the eale of other disposition of the
lands, natural resources, minerals and incone derived from
havever sources for native Hawaiians and Nawaliane.
Ineluaing all income and proceeds from ehat pro rata portion
of che crust referred to in section 4 of this article for
ative Hawaiians; to formulate policy relating to affairs of
‘and to exercise control over
jonal property set aside by the state, federal
‘and transferred to the board for native
yeaiians and Hawaiians. The board shall have the power to
‘control over [OHA] through ite executive officer,
She sdninSerrator of [62a], who shell be appoinved by the
board!
art. xt, 68 4-6.
Article XVI, section 7 of the Hawai'i Constitution provid
Gf this state, in respect of the
by the United Staten oF the
proceeds snd income therefrom, shall b
Appropriate leaislation. such legislation shalt not
Giminian or limit the benefice of native Hawaliane under
Section 4 of Article XII.
art. XVI, § 7 (enphases added)
*** FORPUBLICATION ***
legislation regarding its trust obligations. Id, (citing Haw.
Const. art. XVI, § 7) (emphases added). Thus, in 1979,
legislation was enacted that set forth the purposes of OHA and
Id, at 391, 32
Gescribed the powers and duties of the trust
L. Act 196, § 2 at 398-99,
P.3d at 904 (citing 1979 Haw. se
§ 8 at 406 (codified at HRS chapter 10)). In 1980, the
legislature amended HRS chapter 10 by adding HRS § 10-13.5, which
provided that “(t]wenty per cent of all funds derived from the
public land trust . . . shall be expended by [OHA] for the
L. act
Purposes of this chapter." Id, (citing 1980 Haw. Se:
273, § 1 at 525) (emphasis added).
3. Yamasaki
In 1983, the trustees initiated the action in Yamasaki
against the State based on the state's alleged failure to fulfill
its obligation to allocate “twenty per cent of all funds derived
from the public land trust to OHA" as required by HRS § 10-13.5.
id. (citing Yamasaki, 69 Haw. at 165, 737 P.2d at 453). on
interlocutory appeal, this court held that it was unable to
determine the parameters of ERS § 10-13.5 “because the seemingly
clear language of ERS § 10-13.5 actually provided no ‘judicially
discoverable and manageable standards’ for resolving the disputed
issues in the case." Id, (citing Yamasaki, 69 Haw. at 173, 737
P.2d at 457) (brackets omitted). Stated differently, this court
“concluded that the construction of the term ‘funds’ [as used in
HRS § 10-13.5] . . . constituted a non-justiciable political
*** FORPUBLICATION ***
eS
question because the legislature had not provided judicially
manageable standards.“ Id, at 393 n.6, 31 P.3d at 906 n.6
(citing Yamasaki, 69 Haw. at 172-73, 737 P.2d at 457).
Cc. Post-Yamasaki Lesislation
In response to this court’s decision in Yamasaki, the
Jegislature enacted Act 304, which inter alia, amended HRS
§ 10-13.5 to provide: “twenty per cent of all xevenuel‘) derived
from the public land trust shall be expended by [OHA] for the
betterment of the conditions of native Hawaiians." Id, at
391-92, 31 P.3d at 904-05 (citing 1990 Haw. Sess. L. Act 304, § 7
at 951; HRS § 10-13.5 (1993)) (emphs
48 in original).
Additionally, section 8 of Act 304 provided a mechanism whereby
the State and OHA were to determine the amounts owed to OHA for
the period of June 16, 1980 through June 30, 1991. id. at 392,
32 P.3d at 905 (citing 1990 Haw. Sess. L. Act 304, § 8 at 951).
‘Thus, pursuant to section 8, the legislature appropriated funds
for the payment of approximately $130 million to OHA on April 16,
1993. Id. (citing 1993 Haw. Sess. L. Act 35, at 41). However,
«ogy TM levislature defined revenue* in section 3 of Act 306 to
include a22
Proceeds, fees, charges, rents, or other income. .
Serives from any... activity(] that ie situated upon and
results fron the actual use of... the public lend erust
1 but excluding any income, proceeds, f
Qther moneys derived through the exereise of sovereign
functions and powers including (11) enuserated descriptions
of sources of revenue that are excluded from che tere"
“revenue” under the statute
GHRL, $6 Hawai's ax 392, 32 7.34 at 905 (citing 1990 Haw. sess. L. at 308,
5 3 at 948; RS § 10-2) ‘(some brackets omitted) (eome brackets added)
(ellipses points in origina!)
* FOR PUBLICATION ***
the $130 million appropriation *{did) not include several matters
regarding revenue which OHA (had) asserted [was] due OHA and
Which [the state had) not accepted and agreed to.” Id.
(quotation marks omitted) (brackets added) .
D. OWA
1. Chreuit Court Proceedings
Based on the State’s refusal to appropriate funds for
sveral matters regarding revenue which OHA has asserted (was)
due," OHA initiated the action in OHA I on January 14, 1994,
alleging that the State had failed to pay OHA its full share of
wrevenues" that the State had collected from the ceded lands
since June 16, 1980. Id. OHA sought an accounting, restitution
or damages, pre-judgment interest, attorneys’ fees and costs, and
such other relief as the court deemed just and proper. Id.
The State moved to dismiss the case on the following
grounds: (1) lack of justiciability; (2) sovereign immunity;
(3) statute of limitations; and (4) and waiver/estoppel. Id.
The circuit court orally denied the State’s motion to dismiss and
ruled that OHA was entitled to revenues from each enumerated
source. Id, Thereafter, the State filed its notice of appeal on
Novenber 22, 1996. Id.
2. Federal Legislation Enacted While OHA I Was
Pending Appeal
During the pendency of the appeal in OHA I, the United
‘States Department of Transportation (USDOT), in 1995, conducted
an investigation into the propriety of the State’s payments to
*** FOR PUBLICATION ***
OHA from airport revenues. Id. at 396, 31 P.3d at 909. This
investigation was sought pursuant to: (1) the Airport and Airway
Improvement Act of 1962, Pub. L. No. 97-248, § Si1(a) (12), 96
Stat. 671, 687 (1982) (codified, as subsequently amended, at 49
U.S.C. § 47107(b) (1)), which directed aixport owners to use ‘all
revenues generated by the airport . . . for the capital or
operating costs of the airport, the local airport system, or
other local facilities which are owned or operated by the owner
oF operator of the airport and directly related to the actual
transportation of passengers or property”; and (2) the Federal
Aviation Administration (FAA) Authorization Act of 1994, Pub. L.
No. 103-305, § 212(a) (2) (B), 108 Stat. 1569, 1574-75 (1994)
(codified at 49 U.S.C. § 47107(1) (2) (b)), which prohibited the
wuse of airport revenues for general economic development,
marketing, and promotional activities unrelated to airports or
airport systems(.]* Id. (ellipses points in original)
(quotation marks omitted) .
In a 1996 report, the USDOT Inspector General concluded
that the State’s payments to OHA between 1992 and 1995 in the
amount of $28.2 million ‘were a diversion of airport revenue in
violation of 49 § U.S.C. 47107(b)" because “OHA provided no
services for the $28.2 million” [hereinafter, the USDOT Inspector
General's report will be referred to as the IG Report). Id.
(citing FAA Report No. R9-FA-6-015, Aixport Improvement Program
Grants Provided to the Hawai'i Department of Transportation
*** FOR PUBLICATION ***
(HoT), at 11 (Sept. 19, 1996)). The IG Report recommended that
the FAA “withhold paynents on current grants and approval of
recover the §28.2 million
"Ide
further grants if the State does not:
in airport revenues paid to OHA for nonairport purpot
(citation and brackets omitted). In response to the IG Report,
the State attorney general opined that ‘we view the subject
payment of $28.2 million in airport special fund moneys to OHA
Pursuant to Act 304 as an operating cost of the State's airports
within the meaning of 49 U.S.C.A. § 47107(b) (2) .*
In early 1997, the State began to escrow airport-
related payments owed to OHA pending resolution of the IG Report.
On April 25, 1997, the FAA issued a memorandum (hereinafter, the
FAA Memorandum), stating its concurrence with the IG Report’s
conclusion and recommendation. Id, (citing Memorandum from FAA
Acting Administrator to Acting Inspector General of 4/25/97,
arn.
on July 22, 1997, U.S. Senate Report 105-55 regarding
the Department of Transportation and Related Agencies
Appropriations Bill, 1998, state
Federal aviation law . . . prohibits the diversion of
Aixport revenues for non-airport purposes. Recently, the
Departnent of Transportation Inspector General identified
$30, 000,000 in past paynents to the Office of Hawaiian
Rttaize ae illegal diversions of airport revenues. The FAA
agreed with the (IG Report). However, it is unclear whether
a Federal court would agree with che {Inspector General) and
fhe FAA(,] should their determination be challenged. Given
fhe fact that the State of Hawaii ome the lands in trust
“for the bettersent of native Havailans, it is conceivable
that a reviewing court could find that ‘the payments of
Aizport revenues were in the nature of rent, which ie
Permissible use of airport revenue.
tne 3 2
*** FOR PUBLICATION ***
congress ature
(Bmphasis added.) On August 19, 1997, the State attorney general
authored a newspaper article, in which she stated that the state
would not challenge the FAA’s position that the use of airport
revenues to pay OHA was improper.
In 1998, Congress enacted the Department of
Transportation and Related Agencies Appropriations Act, Pub. L.
No. 105-66, § 340, 121 Stat. 1425, 1448 (2998) [hereinafter, the
Forgiveness Act], which states in pertinent part:
(7) (Clontrary to the prohibition against diverted airport
Fevenues fron alzport purpores under section 47107 of itie
45. Unites states cose.
‘evenlea may have been ‘nade for the betterment of Native
Hawaiians, or Alaskan natives based upos the claims related
Ho lands ceded to che United statest.1
(b) "TERMINATION OF REPAYMENT RESPONSIBILITY. -- Notwithstanding
the provisions of 47207 of title 49, United Sates Code, oF any.
other provision of law, monies paid for claing related to ceded
Ari Liss, by any entity for the bettersent of Native
Anericans, Native Hawaiians, or Alaska Natives,
ub
(c) — PRONTSITION ON FURTHER DIVERSION. -- There shall be no
Janie, vhether characterizes as operating expenses, rent, or
otherwise, and whether related to claims for periods of time prior
to or after the date of the enactment of this Act.
(a). CLARIFICATION.) =
ko affect any existing Federal statutes, enactments, OF rust
‘bligatione created chereunser, or any statute of the several
States that define she cblications of auch States to Native
americans, wualians or Alaska natives in conection with
used to satisfy euch obliastions.
OHA I, 96 Hawai'i at 396-97, 31 P.3d at 909 (citing Forgiveness
Act § 340) (emphases, brackets, and ellipses points in original).
FOR PUBLICATION ***
3. This Court's Decision in OHA T
After the Forgiveness Act became law, this court, on
appeal, acknowledged that the plain language of "Act 304
sought in
obligates the state to pay to OHA the airport revenu
this case." Id. at 396, 31 P.3d at 909. However, this court
further held that “Act 304, as applied to the airport revenue
sought in this case, conflicts with the provieione of the
Forgiveness Act. As such, by its own terms, Act 304 is
Anvalid.*? Id. at 399, 31 P.3d at 912, This court went on to
hold that, inasmuch as "the invalidity of Act 304 reinstates the
inmediately preceding version of HRS § . . . 10-13.5, which then
places this court precisely where it was at the time Yamasaki was
decided{,]* *[this court] is again left with no judicially
manageable standards by which to discern what specific funds OHA
is entitled to receive under chapter 10, without making ‘an
initial policy determination . . . of a kind normally reserved
Specifically, this court invalidated Act 304 pursuant to
section 16 of the act, which stated:
‘The provisions of this Act shall be enforced to the extent
they are not held to conflict with any federal or state law,
‘or reguiations. The provisions of this Act are not
Severable and it any provision of the Act, oF the
application thereot to any person or circumstance i held to
conflict with any federal or state law, rules, oF
Fegulations, this Act, in its entirety, shall be invalid and
‘Sections 10°2, 10-3, i0-5, 10-13 and 10-13,5, hawaii Revises
Statutes, shall be feenacted in the for= in which they vead
fon the day before the approval of this Act
1980 Haw. Sess. L. Act 304, § 16 at 952
-10-
*** FOR PUBLICATION ***
for nonjudicial discretion.’** Id, at 400-01, 31 P.3d at 913-14
(citation omitted). Accordingly, this court “dismiss[ed the]
case for lack of justiciability." Id, at 401, 31 P.34 at 914.
B. he Instant Case
1. The Plaintiffs’ First Amended Complaint and the
State's Motion to Diem:
The plaintiffs filed a complaint against the State on
July 21, 2003. On August 26, 2003, they filed a firet amended
conplaint [hereinafter, first amended complaint or complaint]
Therein, the plaintiffs alleged that “the Forgiveness Act would
not have become law if the State had properly challenged the FAA
Memorandum and thus there would not have been a federal law in
conflict with Act 304{.]” The plaintiffs asserted that the
State's refusal to challenge the FAA Menorandun was a
“substantial factor[] that resulted in the passing of the
Forgiveness Act and the Hawaii Suprene Court’s opinion rendered
in (OHA 1,]* which invalidated Act 304. As a result of Act 304’
invalidation, the plaintiffs could no longer recover airport-
related revenues from the State. Thus, the plaintiffs claimed
that the State breached its trust duties by allowing Act 304 to
become invalidated. Additionally, because the plaintiffe believe
that Act 304 constituted a contract and settlement agreement
between the State and OHA, they alleged that the state “breached
the Act 304 settlement” and “violated the Contract Clause of the
+ Additionally, this court held that the State wa not obligated “to
pay amounts “equivalent to! the airport revenie due to GHA from other source
Such'ae the general fund." OHA, Se Hawa at 398, 31 P.3¢ at 302
-1e
*+** FOR PUBLICATION ***
United States Constitution"? by allowing the Forgiveness Act to
invalidate Act 304. The complaint set forth OHA‘s claims and
Prayer for relief as follows:
of the native Hawaiian public Crust. preached the Act 30s
ual ‘Contract Units
" none ‘by the acts and
onissions set forth above including but not limited to: (1)
failing to challenge the positions set forth in the PAA
Mesorandum; (2) resolving ite diepuve with the FAA by
obtaining a forgiveness of the prior $30 million paywent in
exchange for a promise not to make future airport. revenue
Payments to OHA and not to appeal the positions set forth in
fhe FAA Memorandum; (3) breaching the trust duty of
Anpartiality by not challenging the positions set forth in
he FAA Memorandum in order co use then aa a aword in
(Gia Gand subsequent appeal; (4) failing to tinely aévisi
OWA that the State was not going to continue to challenge
tthe positions set forth in the #AA Memorandun ox 10 Report,
and that it was planning to settle with the federal
Government, in order to provide OWA with a
‘position £0 oppor
in inseruceione from the
tthe PAA and,
Court on how to proceed given its conflict position of
Gefending the state against OWA in GHA I and having a duty
fo challenge the positions set forth in the FAA Memorandum.
7" iieed_in
+ ca or
Gazades including but not iimited to: (1) relief alleged by
OuA'in [OHA T}; and, (2) amounts payable under Act 304 chat
have not been paid, including but not limited to, airport
landing tees.
36. OHA is entitled to a declaratory judament that
(2) ordere che state to reinstate act io4 on the grounds
thar the Forgiveness Act would not have become law sf the
State had properly challenged the FAA Memorandum and hue
Ehere woulé not have been 2 federal lay in conflict with Act
304; (2) orders the State to pay alrport-related income,
Proceeds, funds and/or revenues to OHA from sources other
han airport revenues) (3) appoints an independent trustee
Eo temporarily replace the State as trustee of the native
Hawaiian public trust with respect to natters relating to
Feinstatenent of Ret 30¢ and the paynent of alrport-related
Fevenues to OHA fron sources other than airport revenue
+ the Contract Clause of the United states Constitution provides
that co state shail... pase any Law inpairing the Obligation of
Contracts{.]*" U.8. const, art. I, § io, cl. 2
-12-
*** FOR PUBLICATION ***
and (4) determines whether disputed itens should be included
8 income, proceeds, funds and/or revenues owed to OHA.
37." “OHA is also entities to inuunctive celiet that
bars the state and its agents, employees and officials rom
opposing steps to reinstate Act 304 and
velated income, proceeds, funds and/or revert
sources other than airport revenues.
WHEREFORE, Plaintiffs pray for judgment against the
State for: (1) accounting, restitution and/or damages; (2)
declaratory relief set forth above; (3) injunctive relief
set forth above; (4) attorneys’ fees and costs; prejudgment
and post-judguent interest; and (5) such other relief a=
Geened fair and equitable to the [cloure,
pay aizport
‘co OHA from
In sum, the plaintiffs: (1) asserted claims for (a) breach of
fiduciary duties as trustee, (b) breach of the Act 304 settlement
agreenent, (c) violation of HRS chapter 10, (d) violation of the
Contract Clause, and (e) misrepresentation and non-disclosur
and (2) requested relief in the form of (a) accounting,
restitution, and/or damages, (b) declaratory relief,
(c) injunctive relief, (a) attorneys’ fees and costs, (e) pre-
and post-judgment interest, and (f) such other relief deened fair
and equitable to the court.
In response to the plaintiffs’ first amended complaint,
the State filed a motion to dismiss the complaint on September
18, 2003. Therein, the State argued that the circuit court
lacked subject matter jurisdiction over the case and that the
complaint failed to state a claim upon which relief could be
granted, Specifically, the State maintained that the plaintiffs’
claims were barred by: (1) lack of justiciability; (2) sovereign
immunity; (3) statute of limitations and various notice
requirements; (4) res judicata; and (5) collateral attack.
on october 13, 2003, the plaintiffs filed a memorandum
in opposition to the State’s motion to dismiss. Therein, the
-23-
*** FOR PUBLICATION ***
plaintiffs alleged that the State waived its sovereign immunity
in HRS § 661-1(1) (2993)*° and HRS chapter 673, entitled "Native
Hawaiian Truste Judicial Relief Act." The plaintiffs also
argued that their claims were not barred by the statute of
Limitations because the instant action was filed within two years
of the accrual date and that the notice requirements alleged by
the State were not applicable in this case. Further, the
plaintiffs contended that their claims were not barred by res
judicata and did not seek to improperly collaterally attack
ps § 661-1(2) provides in pertinent part:
Barisdiction. The seversl cizeuit courts of the state
. . , shall, subject to appeal as provided by law, have
original jurisdiction to heat and determine the following
matters, and, unless otherwise provided by law, shall
determine ali questions of fact involved without the
Sstervention of @ Jury
(2) "All elaine against che state founded upon any
statute of the State; or upon any regulation of
fan executive department; or upon any contract,
expressed or implied, with the state, and all,
Caine whieh nay be referred to any such court
by the legislature; provided that no action
shall be maintained, nor shall any process issue
Against the state, based on any contract or any
fet of any state officer which the officer ts
hhot authorized to nake or do by the laws of the
State, nor upon any other cause of action than
ae herein set forth.
8 ues § 673-1 (2593) provides in pertinent part:
Kaiver of immunity. (a) The state waives ite
Anmunity for sy Dreach of trust of fiduciary duty resulting
fron the acte of omissions of ite agents, officers and
Geployees in the managenent and disposition of trust funds
and resources of
i2i "ime native Hawaiian public trust under Article
XIE, "sections 4, 5, and 6 of the Constitution of
the state of Havali implementing section §(f) of
the Admission Act;
land shail be liable in the same manner and to the sane
extent ae 2 private individual under like circumstances, but
Shall not be liable for punitive danages.
o14-
*** FOR PUBLICATION ***
QHAI. On October 17, 2003, the State filed its reply
Memorandum, in which it reiterated arguments advanced in the
motion to diemi:
on November 10 and 12, 2003, the circuit court held
At the hearings, the
hearings on the State's motion to diems:
Parties reasserted arguments raised in their pleadings. after
indicating its inclination to grant the motion, the court stated:
Ehia [clourt is till of the mind chat there hae been no
legislation since OHA T was handed Gown, and in orger for
(the plaintiffe) to successfully prosecute any claim [they]
ay have against the State for breach of fiduciary duty,
Chere nas to be a measure of damages, and that’s where the
(elourt Le strusgling, is to find the measure of danagt
I don't know how [the plaintiffs) can succes
S01 thik ve are in the realm of non-justsciabilicy,
fe the fight over what revenues would have formed che
3 for the percentage to be taken Out and swarded to. (the
plaintiffs) still renaine unclear [sl"
Nevertheless, at the close of the November 12, 2003 hearing, the
circuit court “set a schedule for further briefing" because “this
[clourt needs to have further education on some of these
issues[.}*
On November 17, 2003 and in response to the court's
request for further briefing, the plaintiffs filed a supplemental
m
menorandum in opposition to the State's motion to dismi
serted, the plaintiffs
addition to argunents they previously
posited that, “even if the measurement of compensatory damages
Presents a political question, dismissal of the case is not
warranted." specifically, the plaintiffs argued that *[t)he
easurement -of -damages-using-Act 304 [iesue] does not
‘inextricably’ require dismissal here because it is clear that
nase
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the liability issues are justiciable and the [c]ourt has the
Power to formulate whatever appropriate renedies should flow from
(2) nominal damages”; (2)
a finding of wrongdoing[,]” such a
"an accounting"; and (3) “attorneys’ fees." The plaintiffs
ue
further noted that, “regardless of whether the damages
Presents a political question, the [c]ourt can appropriately
resolve the liability issue and leave the remedy for the
legislature to enact.” In other words, the plaintiffa maintained
that the "lability issues can be bifurcated in order that
Litigation my proceed.”
on Novenber 21, 2003, the State filed a supplenental
memorandum in support of its motion to dismiss. In addition te
reiterating argunente it had previously made, the state, in
response to the plaintiffs’ suggestion of bifurcation, posited
that such a “suggesticn{) constitute[s] a roadmap for waste of
judicial resource:
On November 25, 2003, the cixcuit court held another
hearing on the state’s motion to dismiss. After the parties
presented oral argunent, the court noted that the State’s
arguments regarding the statute of limitations, sovereign
inmunity, and res judicata did not warrant dismissal of the
complaint. However, the circuit court ruled:
Turning finally to the question of justiciability and
the political question. Thats where thio. (clourt believes
tthe Grux of the fight is on this matter. I chink that there
iano question that the supseme court in ol i made a
‘eierninstion that the dispute should eo back to the
ior chapter 10.-and without th
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ee
na ldveas the question
cecejodPlermeating everything that has been asserted.
in conhection with this’- # at bap it’
ek to ia
legislature the [sic] OHA is faced with
by'the legs che
case at bar, icugesl
and the (cloart simply could not get that out
of ike ming, ‘fotwithatanding the quality of briefing that
Ona suomiteed
go She —Iclourt does conclude that we still have at the
suecof the case at bar a political question, one that sacks:
Hecaeeaeest epi as Sg andthe beldna of Ok
tian, eSiAAT mnaseasie-atasard tor deternicioa
‘So for these and any cther good caus
record,
ieertrs
(Bmphases added.) The circuit court entered a written order
shown in the
@ismissing the first amended complaint on December 26, 2003.
2, The Plaintiffs’ Motion to Amend
After the State moved to diamiss the first amended
Complaint but prior to the court’s dismissal of the complaint,
the plaintiffs moved for leave to file a second anended complaint
on October 1, 2003. The proposed second amended complaint
(hereinafter, the original second amended complaint]: (1) added
“a cause of action for breach of the covenant of good faith and
fair dealing implied in the Act 304 Settlement because upon
further reflection counsel for [the plaintiffs] believe(] that
the State’s failure to oppose the FAA's position not only
constitutes a breach of the Act 304 Settlement as a contract but
@leo the covenant of good faith and fair dealing implied in the
Act 304 Settlement”; (2) deleted the clains for misrepresentation
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and non-disclosure; (3) deleted “relief seeking to reinstate Act
304 because upon further reflection [the plaintiffs] believe{]
that this can only be accomplished by the legislative branch";
and (4) clarified that, "although [the plaintiffs] alleged
damages measured by the standards established under Act 304, the
fact that {QHA I] effectively repealed Act 304 is not relevant
because the State’s alleged wrongs caused the effective repeal of
Act 304.*
On October 13, 2003, the State filed a memorandum in
opposition to the plaintiffe’ motion to amend, in which the state
argued that “the proposed amendments are futile" and that the
plaintiffs ‘knew or should have known of the proposed amendnents
when the initial complaint was filed.* In response to the
State’s memorandum, the plaintiffs a:
jerted that the proposed
anendnents were not futile.
After the circuit court orally dismissed the first
amended complaint, the plaintiffs’ filed a supplemental motion in
support of their motion to anend on Novenber 28, 2003. The
plaintiffs attached to the menorandum a revised second amended
complaint [hereinafter, the revised second amended complaint] .
In addition to changes proposed in the original second amended
complaint, the revised second amended complaint requested the
following declaratory relief:
(The plaintiffs are) entitied to a declaratory judgnent that
deciares that the State breached fiduciary duties ax trustee
Of the native Havaiian public trust, breached the Act 306
seelenent, breached the covenant of good faith and fair
Ling inplies in the Act 304 Settlement, violated H-R-S.
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Chapter 10 and/or violated Article XII, Sections 4-6 of the
Constitution of the State of Mavaii, and that the states
breaches, errors and omissions as set forth above were
Substantial factore that resulted in the passing of the
Forgiveness Act and the Mavall Supreme Court's invalidation
of Act 308 in (OHA 2].
On December 1, 2003, the State responded to the
plaintiffs’ supplemental memorandum and alleged that:
7o the extent that OHA seeks to engraft a “new claim
for deciarscory Judgment onto the old claim for declaratory
‘The law ie that
‘may only Senue in cases of actual
‘actual controversy,
cases
and injunctive
declaration that the State violated a fiduciary duty,
Breached a contract, ete., would be a purely advisory
‘Shinion, ‘Because OHA will not receive monetary oF.
Gnjuneeive relief sea reault of any such declaration, it
would have so judicial consequences for OHA.
(Sephases in original.) The State also asserted that, *[s]imply
as a matter of procedure, there is no basis for [the plaintiffs’)
filing.
on Decenber 19, 2003, without holding a hearing on the
matter, the circuit court entered an order denying the
plaintiffs’ notion to amend.
3. The Plaintiffs’ Motion to Bifurcate
After the circuit court had dismissed the first amended
complaint, the plaintiffs filed a motion to bifurcate on November
28, 2003. They asserted that the “request for bifurcation is in
part based on [their] request to amend [their] declaratory relief
prayer" in the revised second amended complaint. Thus, the
plaintiffs requested the court to ‘rule on the [the motion to
amend) before ruling on this motion because [the plaintiffs’)
prayer for declaratory liability relief is an important part of
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this motion." Specifically, the plaintiffe asked the circuit
court to “allow [them] to proceed with the liability issues in
this case including the pursuit of the declaratory liability
relief sought and any other relief that is not based on Act 304
(e.g., nominal damages, attorneys’ fees
a measure of danag
and costs), inasmich as these issues are clearly justiciable.*?
On December 1, 2003, the State filed its memorandum in
opposition to the plaintiffs’ motion to bifurcate. The state
argued that
Bifurcation is improper because: (2) (the plaintiffs)
ignore{] the expedition and econosy" requirenente of the
Pisin cext of Hawaii Role of Civil Procedure TllineP) Rule)
42(b) [(2372)"1; (2) [ene plaintiffs") position is,
Slogical, and the requested bifurcation can serve no legal
Purpose; and’ (3) ‘there is so case law supporting [the
Plaintiffs") request for bifurcation.
The State additionally asserted:
Even more fundamentally, [the plaintiffs’) request ie not
really « request for "bifurcation’ at all, Bifurcation
typically’ inves sparating two clains or issues and then
considering then sequentially. The purpore is to avoid
unnecessarily litigating the second claim or issue if the
Hirst is resolved a certain way (e-g., determining liability
first, #0 that issues of dasages need not be considered
unless and until the first phase results in a finding of
Liability). In stark contrast, there indisputably will not
bea second phase in this case because this court has
already ruled that there are no judicially manageable
Standards to provide OHA a renedy. OHA does not actually
Seek “bifurcation,” but, rather, seeks = one-step"
Fuling on Liability, with no Judicial remedy step ever to
fellow.
Rather than *bifurcater go that resolving a dependent
issue (e.g-, renedy) might be avoided once a preceding issue
& We note that the plaintiffs’ motion to bifurcate alternatively
Fequested “leave to conduct limited preservation discovery during the
indeterminate and potentially lengthy period of tine that this case may be on
appeal." “However, this issue is not reised on appeal
nce Rule 42(b) provides that courts ‘may order a separate trial
of any claim of issues, always preserving inviolate the right of trial
by Jury a8 given by the Constitution Or a statute of the State or the United
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ee
de determined (e.g., a ruling denying liability), OHA aske
for the exact opposite: it aeke this court to reach as
issue that it has already determined need not be reached
because no renedy can issue even if liability were found.
Move, rather than bifurcating to preserve scarce judicial
Fesources, OHA asks for "bifurcation" to burden judicial
resources for no practical purpose.
(Smphasis in original.)
After @ hearing on the matter, the circuit court
entered an order denying the plaintiffs’ request to bifurcate the
justiciable and nonjusticiable issues."
4. gudgment and Notice of Appeal
On May 19, 2004, the circuit court entered ite final
judgment in favor of the State and against the plaintiffs “as to
all clains asserted against [the state] in plaintiffs’ first
amended complaint.* The court also stated that “[t]here are no
Femaining claims” and that, in any case, “(any remaining claims
are diemissed without prejudice.”
On June 8, 2004, the plaintifés filed a timely notice
of appeal.
A ismiag Cor f
A trial court's dismissal for lack of subject matter
Jurisdiction is a question of law, reviewable
‘ve United . 850 Fad $50, 560° (3th Cir
3968), cert. denied, 469 0.5. 1052, 108's. ce. 13:2, 103 L.
4-24 561 (1989); age aleo Moir v. greater Clevela
Eegional Transit Auth. 695 F.2d 266, 269 {eth Cir 1990).
Moreover, we adopt the view of the Ninth circuit coure of
Appeals in Love v. U.S.) 871 7.26 1428 (3th Cir. 1985)
Our review fof a wotion to dismiss for lack of
subject matter jurisdiction 1s based on the
contents of the complaint, the allegations of
which we accept as true and construe in the
rect OES, that the court granted the plaintiffs’ motion with
te their request for leave to conduct limited discovery,
sect
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Light most favorable to the plaintife
Dismissal is improper unless "it appears beyond
Goube that the plaineif® can prove no set of
facte in support of his claim which would
entitle him to relief."
Ad, at 1491 (citations omitced) .
Norcia v. Hawaiian Airlines, Inc., 74 Haw. 235, 239-40, 942 P.2d
634, 637 (1992), aff'd, $12 U.S. 246, 266 (1994) (footnotes
omitted) (brackets added). Similarly, *[a] complaint should not
be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of hie or her claim that would entitle him or her to
" Dunlea v. Dappen, 63 Hawai'i 28, 32, 924 P.2d 196, 200
(2996), overruled on other grounds by, Hac v. Univ, of Hawad't,
102 Hawai'i 92, 105-06, 73 P.34'46, 59-60 (2003).
B. Motion for Leave to Amend Complaint
Orders denying motions for leave to amend a complaint
are reviewed for an abuse of discretion. Hirasa v. Burtner, 68
Haw. 22, 26, 702 P.24 772, 776 (2985).
relie!
‘The trial court abuses its discretion if it bases its ruling
on an erroneoss view of the law or on 2 clearly
Rescussent of the evidence. Stated differently,
Gisererion occurs where the trial court has clearly exceeded
the bounde of reason or disregarded rules or principles of
‘Law or practice to the substantial detrinent of a Party
Litigane
Ranger Ins Co, v, Hinshaw, 103 Hawai'i 26, 30, 79 P.3d 119, 123
(2003) (citation omitted) .
TIT. DISCUSSION
Plaintiffs Bi aint
As previously indicated, the circuit court dismissed
the complaint after concluding that it was “left with judicially
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SSS
unmanageable standards or the lack of a judicially manageable
standard for determining damages{.]“ The court stated: “{k]e
still have at the crux of the case at bar a political question,
one that seeks to collaterally attack the ruling and the holding
of OHA L.* In other words, the circuit court concluded that the
Plaintiffs’ damages as requested in their complaint presented a
political question that collaterally attacked OHA I inasmuch a
the damages were sought pursuant to Act 304, which this court had
Previously invalidated in QHA Z.
The plaintiffs’ primary contention on appeal ie that,
contrary to the circuit court’s conclusion that the requested
danages were nonjusticiable, the complaint did request
justiciable relief and that, in any case, the court was not
Limited to the relief pleaded in the complaint, but “had the
should flow
obligation to formulate whatever appropriate remedi
from a finding of liability, even if it ie not the relief prayed
for by [the plaintifte).* Additionally, the plaintiffs argue
that the claims in the complaint were justiciable inasmuch as
determining whether the State breached ite trust or contractual
duties iv “for the courts to decide.
In response, the State first argues that the complaint
was properly dismissed inasmuch as the plaintiffs failed to state
@ claim upon which relief could be granted. Regarding the relief
Sought in the complaint, the State agrees with the circuit court
and posits that, because the plaintiffs’ relief relied upon the
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now-invalid Act 304, the complaint lacked justiciability.
Specifically, the state assert:
(he plaintiee’) sole touchstone for relief in this
case ig invalidated Act 304. ‘The [complaint] sought (2)
the relief that OWA sought in OHA I under Act 304; (2) all
fecunte, including airport landing fees, "payable under Ack
43Ge that have not been paid" (exphasis addea); (3) an order
Ssrecting the State co reinstate Act 304 and to pay
equivalent alxport revenue anounts £0 OHA from nen-airport
sources, (4) the appointment of a trustee to oversee the
Teinstatenent of AEt 204 and the payment of equivalent
fizport revenue amounts to. [the plaintiffs) from non-airport
Sources; and (5) injunctive relief barring the state from
Spposing the reinstatenent of Act 304 and the payment of
equivalent airport revenue amounts to OWA from non-airport
Scurces. (IR 65, 78 p10 at $9 35-37) (App. A)
Gh shore, {the piaintitfe] asked che circuit court and
now aski] this court to pretend that OHA I never happened)
and to resurrect Act S04; Sut QHAI aid happen. This court
Cannot resurrect Act 304 wiehout running afoul of 49 U.5.C.
£47207, the Porgiveness Act, the Supremacy Clause, and § 16
of Act jos iteelt.
(Emphases in original.)
In the instant case, the circuit court dismissed the
complaint based only on its conclusion that the plaintiffs’
requested damages were nonjusticiable and sought to collaterally
attack QHAI. The court did not determine whether the complaint
stated a claim upon which relief could be granted. Moreover, ‘a
motion to dismiss may not be granted on the grounds that the
relief prayed for is improper, so long as plaintiffs may be
entitled to some relief if they are able to prove their clains.
Braun v. N, Ohio Bank, 430 F. Supp. 367, 380 (N.D. Ohio 1977)
(citation omitted); gee also Doss v. $. Cent, Bel) Tel. Co., 634
% Aw previously indicated, the State's motion to dismiss at
alternative grounds for diemiesal, including: (1) sovereign immunity; (2)
Statute of instations; (3) res judicata; and (4) collateral attack. Both
parties present argument on appeal regarding such alternative grounds
However, inasmuch ae we conclude that the complaint was properly dismissed for
yestons qiacussed intra, we deciine to address these alternative grounds for
Semiseal-
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SSS
F.2d 421, 424 n.3 (Sth Cir. 1987), reh’g denied 637 F.2d 1090
(2988) ("demand of an improper remedy is not fatal to a party's
pleading if the statement of the claim is otherwise sufficient to
show entitlenent to a different form of relief’ (citations
omitted)); Doe v. U.S. Dep't of Justice, 753 F.2d 1082, 1108
(D.C. Cir, 1985) (*A district court should not grant a [FRCP]
Rule 12(b) (6) motion to dismiss for failure to seek the
technically appropriate remedy when the availability of some
relief is readily apparent on the face of the complaint.*);
Sassidy v. Millers Cas. Ins. Co, of Texas, 1 F. Supp. 24 1200,
1214 (D, Colo. 1998) (“the test of a complaint pursuant to a
motion to dismiss lies in the claim, not in the denand{; t}hus,
the only issue on a motion [to] dismiss ie whether the claim as
stated would give the plaintiff a right to any relief, rather
than to the particular relief demanded” (citations omitted) ).
Accordingly, we must determine whether the plaintiffs’ complaint
stated any claim upon which relief could be granted rather than
determine, as did the circuit court, whether the plaintiffs’
demand for damages was justiciable.
2. The Plaintiffs’ claine
As previously indicated, the plaintiffs’ complaint
stated their claims as follows:
The state breached fiduciary duties as trustes of the native
Hawaiian public trust, breached the Act 304 settlement,
violated H.R.8. Chapter 10, violated Article Xi, Sections
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4-6 of the Constitution of the state of Hawaii, [] violated
the Contract Clause of the United states Constitution,
Article I, Section 10, clause 1, and is liable for
‘Sisrepresentation and’non-diaclowure 1
We note that the basis of each claim raised in the complaint
je Act. Essentially, the
concerns the passage of the Forgiven
plaintiffs allege that, had the State challenged the FAA
1d the Forgiveness Act.
Memorandum, Congress would not have p
The plaintiffs also allege that, had the state informed then of
ite decision not to challenge the memorandum, it would have
afforded then the “fair opportunity to take measures to step into
the State's position to oppose the FAA" and prevent the enactment
of the Forgiveness Act. We believe that such allegations are
mere speculation, and, more importantly, it would be impossible
for the plaintiffs to prove whether the State’s actions or
inactions led to Congresa’ passage of the Act. As such, each
claim necessarily relies upon the unprovable assertion that
Congress would not have passed the Forgiveness Act but for the
State’s actions. Nevertheless, we address the parties’ arguments
* _ Af previously indicated, article XII, section 4 provides that the
coded lande “shall be held by the state au a public trust for native Hawaiiane
‘and the general public." Haw. Const. art. XIT, § 4. article Xi1, section 5
sblishes OWA and states that *{OMA) shall hold titie to all the real and
personal property now or hereafter set aside or conveyed to ie which shall be
held in trust for native Hawaiians and Hawaiians." Haw. Const. art XII, § 5.
Article X12, section 6 details the powers of the OHA trustees. Haw. Conse.
art XII, § €. Accordingly, by positing that the State violated the foregoing
Sections of the Havai's Constitution, the plaintiffs argue that the seave
breached ite duties ae trustee of che public land eriet~
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and turn to whether each of the foregoing claims stated a claim
upon which relief could be granted.”
a. the plaintiffs’ claim for breach of trust
With respect to the plaintiffs’ claim for breach of
trust, the plaintiffs argue on appeal that “(t]he State, a
trustee of the ceded lands trust, may be held accountable under
standards applicable to trustees of private trusts." They also
assert that *[t]he questions raised by [their] breach of trust
claim do not present a political question because (1) they are in
fact the ‘traditional fare’ of the judiciary, (2) there are
adequate judicially manageable standards for resolving them, and
(3) they do not involve an initial policy determination of a kind
be
fe left to the legislature.*
In response, the State contends that the claim for
breach of trust is nonjusticiable because it violates the
separation of powers doctrine:
‘The FAA audit reports concerned improper diversion of
aixport revenues by the state. Under 49°U.8.C. § 471071),
fhe Stake vas the recipient of airport grant monies, and the
gate was bound by ite written assurances of non-diversion
Of airport revenues. FAA could seek reimbursement of
Liiegally diverced sonies only from the State, secause the
State was the FAA's sole target, resolution oF non=
Feolution of the claim by faa against the State vas the
sole responsibility of the Attorney General on behalf of all
the citizens of the state. For the judiciary to interpose
ite judgnent on how executive branch diseretion should be
vw __Although the plaintiffe’ first anended complaint stated a claim
for ‘misrepresentation and non-disclosure,” the plaintiffs, as noted above,
requested this clain be renoved from the complaint in thely motion to amend
and, in fact, renoved this claim fron their fevieed second amended Complaiat
Thus, the plaintiffs have consistently sought the resoval of this claim fron
their complaint. Additionally, on appeal, the plaintiffs do not mention this
claim or argue how it states a'claim upos which relief could be granted. fe.
Eherefore, decline to address whether the circuit court properly dismiased the
plaintiffs’ claim for sisrepresentation and non-disclosure
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exercised in state litigation matters would violate the
constitutional separation of executive and judicial powes
(Capital letters altered.) (Enpha:
in original.)
In the instant case, the complaint claims that the
State breached its trust duties by:
(2) failing to challenge the positions set forth in the PAA
Nenorandun; (2) resolving ite diapure with the PAA by
obtaining « forgiveness of the pricr $30 million payment in
exchange for a promise not to wake future airport revenue’
Payments to OHA and not to appeal the positions set forth in
fhe FAA Memorandum) (3) breaching the trust duty of
inpartiality by not challenging the positions set forth in
‘the PAA Mesorandum in order co use then as a aword in
(Gia {) and subsequent appeal; (4) failing to tinely advise
OWA that the State vas not going to continue to challens
the positions set forth in the FAA Memorandum or T@ Report,
and that it was planning to settle with the federal
Government, In order to provide OWA with a fair opportunity
fo take messures to ctep into the State's position to oppose
Ehe FAA; and, (5) failing to obtain instructions fron ehe
Court on how’ to proceed given its conflict position of
defending the state against OHA in OHA I and having 2 duty
to challenge the positions set forth in the FAA Memorandum.
In aum, the plaintiffs believed the State acted unlawfully when
it refused to challenge the FAA Memorandum, failed to advise the
plaintiffs that it would not challenge the FAA Menorandum, and
did not request instructions from this court as to how to proceed
im QUA I and against the federal governnent.
i, the State's decision to not challenge
the FAA Menorandum and to settle with
the federal government
The complaint first alleges that the state breached ite
trust duties when the State attorney general declined to
challenge the FAA Nencrandum and, instead, settled with the
federal government. During oral axguient, counsel for the
plaintiffs reiterated the plaintiffs’ theory that the State's
failure to challenge the FAA Memorandum caused the enactment of
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OT
the Forgiveness Act, which “procur led] the denise of Act 304" --
® result adverse to the plaintiffs’ interest. The plaintiffs
speculate that, *[i]f the state had timely and properly
challenged the positions set forth in the FAA Menorandum, it
would have prevailed because the payment to OHA for use of ceded
lands is a proper operating expense of the airport.’
This court stated, in Yamasaki, that, “Like the federal
government, ours is one in which the sovereign power is divided
and allocated anong three co-equal branches" -- the legislative,
executive, and judicial branches. Yamasaki, 69 Haw. at 167,
170-71, 737 P.2d at 454, 456 (citation omitted). “Thus, we have
taken the teachings of the (U.S.] Supreme Court to heart and
adhered to the doctrine that ws
of ‘judicial power to resolve
Public disputes in a system of government where there is a
separation of powers should be limited to those questions capable
Of judicial resolution(.]’* Id, at 171, 737 P.2d 456 (citation
omitted). In other words, “courts will not intrude into areas
committed to other branches of government." Id. at 168, 737 P.2d
at 455. Thus, this court has “adsonished our judges that ‘even
in the absence of constitutional restrictions, they must still
carefully weigh the wisdom, efficacy, and tineliness of an
exercise of their poner before acting, especially where there may
be an intrusion into areas committed to other branches of
government.‘* Id. at 171, 737 P.2d at 456 (citation omitted) .
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The attorney general is an officer of the executive
branch of the State. See Chun v. Bd. of Trs, of the Employees’
Ret. Sys, of the State of Hawai'i, 87 Hawai'i 152, 168, 952 P.2d
1215, 1231 (1998) ("The only constitutional provision that
@irectly pertains to the attorney general appeare in article V,
section 6 (“Executive and Administrative offices and
Departments!
/ within the context of describing the terms of
office of the various ‘single executives’ who head each
‘principal department of the executive branch of state
government [.]"); Newnan v, United States, 382 F.2d 479, 480 (D.c.
Cir, 1967) (noting that the attorney general is “the attorney for
the Executive, charged with faithful execution of the lawa,
protection of the interests of the United States, and prosecution
of offenses against the United states” (citation omitted). The
attorney general's “exclusive authority to control and manage for
the State all phases of civil litigation in which the State has
an interest . . . necessarily includes control of the settlenent
of inminent actions against the State.” Ieland-Gentry Joint
Venture v. State, $7 Haw. 259, 264-65, 554 P.2d 761, 765-66
(2976) hereinafter, Island-Gentry] (citations and footnote
omitted); see also HRS § 26-7 (1993) (*The department [of the
attorney general] shall administer and render state legal
services, . . . [and] represent the State in all civil actions in
which the State is a party"); Chun, 87 Hawai'i at 170, 952 P.2d
at 1233 (“HRS § 28-1 mandates that the attorney general
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SSS
‘represent the State in all civil matters where the State may be
an interested party." (Citation and ellipses points omitted.));
State v. Klattenhoff, 71 Haw. 598, 602, 801 P.24 548, 550 (1990)
(“The [attorney general] is mandated, by law, to administer and
render legal services to the governor, legislature and to the
State departments and offices as the governor may direct.”
(Citation omitted.) .
In the instant case, the plaintiffs sought review of
the attorney general’s decision not to challenge the FAA
Memorandum and her alleged settlement with the federal
government. Based on the facts alleged in the complaint, both
the USDOT Inspector General and the FAA Acting Administrator
issued reports alleging that the State had been violating federal
law by paying airport-related revenues to OHA. The complaint
also concedes that, in the absence of the Forgiveness Act, the
State would have been obligated to repay the federal government
the $28.2 million previously paid to OHA. See also OHA I, 96
Hawai'i at 396, 31 P.3d at 908. Faced with the alleged
violations and the consequence of repaying the federal
governnent, the attorney general chose to resolve the dispute,
successfully obtaining forgiveness from repaying the federal
governnent the $28.2 million already given to OHA. The attorney
general's decision to resolve the dispute between the state and
the federal government fell squarely within her exclusive
authority to control and manage “the settlement of imminent
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actions against the State.” See Island-Gentry, 57 Haw, at
265-66, 554 P.2d at 765-66. Therefore, the circuit court would
have clearly intruded into an area committed to another branch of
government if it reviewed the attorney general's actions and, as
such, would have violated the doctrine of separation of powers.
Yamasaki, 69 Haw. at 168, 171, 737 P.2d at 455, 456.
Accordingly, we hold that the circuit court properly dismissed
the plaintiffs’ breach of trust claim regarding the state's
decision to not challenge the FAA Memorandum.
AA. the State's alleged failure to inform
the plaintiffs of its decision not to
challenge the FAA Memorandum
‘The complaint next asserts that the State breached its
duties as trustee when it “fail (ed) to timely advise [the
Plaintiffs] that the State was not going to continue to challenge
the positions set forth in the FAA Memorandum or 1G Report, and
that {t was planning to settle with the federal government, in
order to provide [the plaintiffs] with a fair opportunity to take
measures to step into the State's position to oppose the FAA[.]*
Tt appears that the plaintiffs believe the state breached a duty
to inform them, as a beneficiary, of the state’s position
regarding the 16 Report and the FAA Menorandun.
‘The common law of crusts identifies two instances
where a trustee is under a "duty to inform.” First, a
ets Saidus ef on
i rT o De ck
Goo 9t Fosa es,
(Second) of 7
circumstances,
Eo tne benef
request:
Ge (4th Cir. 1596) (quoting Restatement
'@ $173 (1959)). Second, in 1inites
trustee is required co provide information
‘there has been 0 specific
-32-
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Ordinarily the trustee is not under a duty to the
beneficiary to furnish information to him in th
absence of a request for such information
Towever,)
nee fact thet
7 =
Bie oa a ira
keapect_to his interest]
Griggs v, B,J. DuPont de Nemours & Co,, 237 F.3d 371, 360-81 (4th
Cir. 2001) (emphases added) (ellipses points and some brackets in
original) (citation omitted); see algo Vartanian v, Monsanto Co.,
331 F.3d 264, 269 (1st Cir, 1997) (*[t)he common law impresses on
a trustee the duty to give a beneficiary upon his request at
to the
Teasonable times complete and accurate information
nature and amount of the trust property" (ellipses points and
quotation marks omitted)) (citation omitted); Faireloth v. Lundy
Packing Co., 91 F.3d 648, 656 (4th Cir, 1996) ("At common law,
trustees have a duty to give beneficiaries upon request ‘complete
and accurate information as to the nature and amount of the trust
property.’* (Citation omitted.) ; v. +1 Bank,
677 A.2d 1032, 1035 (D.C, 1996) ("the trustee is under a duty to
the beneficiary to give him upon his request at reasonable times
complete and accurate information as to the nature and amount of
the trust property” (citation and quotation marks omitted));
er v. Cent amste! 4 Welf: a, 12 F.3d
21292, 2300 (34 Cir, 1983) (*[t]he trustee is under a duty to
communicate to the beneficiary material facts affecting the
interest of the beneficiary which he knows the beneficiary does
not know and which the beneficiary needs to know for his
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protection in dealing with a third person” (citation and brackets
onitted)).
In the instant case, the complaint alleges that the
plaintifts requested from the State “all communications between
the State and the FAA regarding use of airport revenues to pay
OHAI.1* Because the plaintifts requested information from the
State, the state was under a duty to furnieh complete and
accurate infornation regarding the “nature and amount of the
trust property.” Gricgs, 237 F.3d at 380 (citation omitted)
However, the plaintiffs wanted the State to inform them of
whether it would “continue to challenge the positions set forth
in the PAA Memorandum or IG Report, and whether it was planning
to settle with the federal government [.]* This information does
not concern the nature and amount of trust property and, thus,
the State was not under a duty to provide such information to the
plaintifes.
Furthermore, as previously indicated, the State was
under a duty to inform the plaintiffs of material facts affecting
their interest which the State knew the plaintiffs did not know
and which they needed to know for their protection in dealing
with a third party. Geigs, 237 7.34 at 360. Based on the
plaintiffs’ claim, it appears that they are under the impression
that, had they known that the State would not challenge the FAA
Memorandum, they would have “step[ped] into the State's position
to oppose the FAA[.]” In that regard, the plaintiffs may have
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*** FOR PUBLICATION ***
$A
believed that the information was necessary for their protection
in dealing with the federal government. However, the dispute
regarding the FAA Memorandum was solely between the State and the
federal government; the FAA Memorandum concluded that the State
w+ not the plaintiffs -- had been violating federal law, and the
State was faced with repaying the federal government the $26.2
million already paid to OHA. In other words, the plaintiffs were
not a party to the dispute between the state and the federal
government and, as such, the plaintiffs were not “dealing with"
not,
the federal government. Inasmuch as the plaintiffs we:
dealing with the federal government (iie., the third party), the
State could not have been under a duty to provide information to
the plaintiffs for use in dealing with the federal government.
Moreover, because the State attorney general had exclusive
sontrol over how the State handled the federal government's
allegations, the plaintiffs could not have “step[ped] into the
State’s position’ without depriving the attorney general of her
exclusive control over the matter. Accordingly, we believe that
the plaintiffs assertion regarding the state's failure to inform
failed to state a claim upon which relief could be granted and
that, therefore, the circuit court properly dismissed this claim,
iii, the State’s alleged failure to obtain
instructions from this court as to how
to proceed in OHA I and ite dispute with
the federal government
Lastly, the plaintiffs allege that the State “fail (ed)
to obtain instructions from the Court on how to proceed given its
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conflict position of defending the State against OHA in OHA I and
having a duty to challenge the positions set forth in the FAA
Memorandum." It app
8 that the plaintiffs believe the state
was faced with a conflict of interest inasmuch ae it had to
defend against OHA in QHAI while simultaneously settling the FAA
Memorandum dispute with the federal government. The plaintiffs
allege that, prior to resolving the dispute with the federal
government, the State attorney general should have inguired with
“the Court" for instructions on how to proceed, given its
conflict of interest, in QHA I and with regard to its dispute
with the federal government.
Initially, we note that the complaint is unclear as to
whether the plaintiffs claim the State should have obtained
instructions from this court or the circuit court. However, by
the time the FAA Memorandum was issued, the State had filed its
notice of appeal in QHA I, which divested the circuit court of
jurisdiction over the case and transferred jurisdiction to this
court. SA Int'l Ltd. v. Shimizu Corp., 92 Hawai'i 243, 265, 990
P.2d 713, 735, as amended, (1999) (citations omitted). As such,
the circuit court would have lacked jurisdiction to entertain
such a request by the State. Therefore, for purposes of this
claim, we believe the plaintiffs argue that the State should have
obtained instructions from thie court in QHA I and that the
State’s failure to do so was a breach of its trust duties.
W36-
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However, appellate courts “cannot . . . render advisory
opinions, or give legal advice as to future events.” Shipp v.
County of Kankakee, 345 T11. App. 34 250, 289 (I11. App. ct.
2003) (citation omitted), appeal denied, 813 N.z.2d 229 (2004);
see also Contenpo-Tempe Mobile Home Owners Ass'n v, Steinert, 696
P.2d 1376, 1378 (Ariz. Ct. App. 1985) (noting that appellate
courts do not act as “fountain{s] of legal advices) (citation
omitted). In fact, thie court has noted the “prohibition against
rendering ‘advisory opinions,’* Yamasaki, 69 Haw. at 172, 737
P.2d at 456 (citation omitted), and that prudential rules of
judicial self-governance caution against then. state v. Lagat,
97 Hawai": 492, 499, 40 P.34 at 894, 902 (2002). After all, an
advisory opinion Yis one of advice and not of judgment as there
are no parties whose rights are adjudicated, and it is not
binding on anyone.” George v, Town of Watertown, 858 A.24 800,
804 (conn. App. Ct.) (citation omitted), appeal denied, e58 A.2d
800 (conn. 2004) .
Had the state requested legal advice from this court on
how to proceed in the instant case, it would have essentially
asked this court to issue an advisory opinion, which thie court
would likely not have entertained, given the prohibition against
advisory opinions. Moreover, as previously indicated, the
attorney general had exclusive authority to litigate or settle
both the FAA Menorandum dispute and OHA I, Island-Gentry, 57 Haw.
at 264-65, 554 P.2d at 765-66 (citations and footnote omitted) ,
-37-
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and, thus, this court could not have advised the attorney general
‘as to how to proceed in either dispute without violating the
separation of powers. Therefore, we conclude that the circuit
court properly dismissed the plaintiffe’ claim that the state
breached ite trust duties by not seeking instructions from this
court in OHA Z.
b. the plaintiffs’ claim for breach of
settlement
As previously indicated, the plaintiffs claimed that
the State “breached the Act 304 Settlement” by failing to
challenge the FAA Memorandum. A claim alleging breach of
settlement requires that the plaintiffs establish that a
settlement agreement, or contract, see Haxxia v, Desoto, 80
Hawai'i 425, 432, 911 P.24 60, 67 (1996) (“a settlement agreement
is a contract”), existed between the parties. Eilak v. Georse,
594 8.8.24 610, 619 (Va, 2008) (“The elements of a breach of
contract action are (1) a legally enforceable obligation of a
defendant to a plaintiff; (2) the defendant’s violation or breach
of that obligation; and (3) injury or damage to the plaintiff
caused by the breach of obligation." (Citations omitted.)).
‘Therefore, the plaintiffs’ claim for breach of settlement
requires that they first establish that a contract or settlement
agreement existed between them and the State.
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4. whether this court must accept as true
the plaintiffs’ allegation that Act 304
constituted a contract or settlement
agreement
‘The plaintiffs urge this court to accept as true their
“factual” allegation that Act 304 constituted a contract or
settlement agreement. However, the State argues that the
plaintiffs’ allegation is a “conclusory legal allegation" that
this court need not accept as true.
As previously indicated, thie court’s review of the
circuit court’s dismissal of the plaintiffs’ complaint mst be
“based on the contents of the complaint, the [factual]
allegations of which we accept as true[.]" Norris, 74 Haw. at
240, 842 P.2d at 637 (citation omitted); see also McDonald v.
Santa Fe Trail Transp, Co., 427 U.S. 273, 276 (1976) ("Because
the [d]istrict [clourt dismissed this case on the pleadings, we
take as true the material facts alleged in petitioners
complaint.” (Citation omitted.)). However, this court need not
‘accept as true any legal conclusions asserted by the plaintiffs
in their complaint. See URCH Int‘] Local 911 v, UFCW Int’)
Union, 301 F.3d 468, 472 (6th Cir.), xeh’a denied, 30: F.3d 468
1 of a claim,
(2002) (when reviewing a district court’s diemi
“we need not accept as true unsupported conclusions and
unwarranted inferences" (citation omitted)); Doug Grant, Ine. v.
Greate Bay Casino Corp., 232 F.34 173,
("while our standard of review requires us to accept as true all
(3d cir. 2000)
factual allegations in the complaint, we need not accept as true
-39-
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‘unsupported conclusions* (citations and quotation marke
omitted), cert, denied, 532 U.S. 1038 (2001). ‘Therefore, if the
question of whether Act 304 constituted a valid and enforceable
contract or settlement agreement is one of law rather than fact,
this court need not accept the plaintiffs’ allegation as tru
Generally, whether a contract or settlement agreement
exists is a question of fact. Island Directory Co, v. Iva’s
Kinimaka Enters,, 10 Haw. App. 15, 23, 859 P.2d 935, 940 (1993)
(Whether or not the parties entered into an agreement is
(Citation omitted.); see also
yentially a question of fact.
Bu Am. Int’ + 808 A.2d 672, 680 (Conn. 2002)
(tthe existence of a contract is a question of fact” (citation
omitted); Sullivan v. Porter, 861 A.2d 625, 631 (Me. 2004)
("Generally, the existence of a contract is a question of fact to
be determined by the jury." (Citations, quotation marks, and
brackets omitted.)). Nevertheless, whether a valid and
enforceable contract exists is a question of law for the court to
decide. Found, Int'l, Inc. v. E.7. oe Constr., Inc., 102
Hawai'i 487, 494-95, 78 P.3d 23, 30-31 (2003) ("as a general
rule, the construction and legal effect to be given a contract is
‘@ question of law” (brackets and citations omitted).
In the instant case, because the plaintiffs euggest
that legislation -- ise., Act 304 -- constituted a contract or
settlement agreement, this court must review the language of the
act and the circumstances surrounding ite enactment. “The
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*** FOR PUBLICATION ***
language and circumstances of the [legislation] must evince a
clear intent by the legislature to create contractual rights so
as to bind the state." Koster v. City of Davenport, 183 F.3d
762, 766 (Bth Cir. 1999) (citations omitted). Thus, determining
whether Act 304 constituted a valid and enforceable contract or
settlement agreement between the parties presente a question of
law for the court to decide. See Brown v, Smith, 64 Cal. Rptr.
2d 302, 307 (Cal. Ct. App. 1997) ("The construction of statutes
and the ascertainment of legislative intent are purely questions
of law.” (Citation, quotation marks, and brackets omitted.)).
As such, this court need not accept
true the plaineises’
allegation that Act 304 constituted a contract and settlement
agreement. Accordingly, we turn to the legal question of whether
Act 304 contractually bound the State to ite terms.
4d, whether Act 304 constituted a valid and
enforceable contract or settlement
agreement
‘The United States Supreme Court has addressed the
circumstances under which legislation contractually binds the
government:
For many decades, this Court has maintained that abeent sone
actual ree oerrs
intended to creste private contractual ox vested cichte but
shall ordain otherwise.~ Dodae v. Board of Education, 302
U.8. 7a, 79, 50 8, Ce 98, 100, 62 1. E687 (1997)-, Bee
ale Rector of christ church vi County of Philadelphia, 24
iow. 300, 302, 16 L. Ba. 602 (i861) ("Such an Interpretation
is not £9 be favored). This well-established presumption
is grounded in the elenentary proposition that the principal
function of a legislature is not to sake contracts, but to
make laws that establish the policy of the state. Indiana
, 303. U.S. 95, 204-205, S08. CF
443, 427-448, 62 L.Ed. 685 (1938). Policies, unlike
ae
*** FOR PUBLICATION ***
contracts, are inherently subject to revision and repeat
‘and to construe lavs as Contracts when the obligation
Clearly ané unegu:
Seastically the
Indeed, ** (t]he continued existence
of no. :
was disarmed of the powers neces
of ite creation.'* Keefe v. Clark, 322 0.8. 392, 297, 64
5. ct, 1072, 1074, ise (2944) (quoting Chatles
River Bridet v.Harcen Gridae, 11 Fet. 420, 548, 9 1. Ba.
333. ties7)) Thue,
Aupra, 302 U-5., ae 79, 585. Ce-, at 100, and we-proceed
upra, at 78, S88. Ct. at 100. ee alag
TREOG, EPS, Serooh ve Biacd’‘auora, 303S's tat 104,
58s. ce., at 447 (there the clain is that the state's
policy embodied n'a statute ie to bind ite
Instrumentalities by contract, the cardinal inguiry is as to
the terns of the statute supposed to create auch a
contract"). “if it provides for the execution of a written
Contract on_hehalt of the state the care for an obligation
Binding upon the state 16 clear." 302 U.S., at 78, 38
S. Cts, at 100 (emphasis supplied). But absent "an adequate
sxpression of an actual intent” of the State to bind icset,
iisconsin @ wichicsn #. Co. v. Powers, 1910.5. 378, 386
387,24 S.C. 107, 108-109, 48 L. Ba. 229 (1903), this
curt simply will ot Light
dition. s-private costract to which
4 esenger Corp. v. Atchison 7 “
470 U.S. 451, 465-67 (1985) (some emphasis in original, some
added); see also United States Trust Co. v. New Jersey, 431 U.S.
2, 16 n.14 (2977) ("In general, a statute is itself treated as a
contract when the language and circumstances evince a legislative
intent to create private rights of a contractual nature
enforceable against the State."). Courts proceed cautiously in
identifying those statutes which contractually bind the
government to its terms because:
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Finding a public contractual obligation has considerable
Gtfect. re meane that a subsequent legislature 1a sot free
fo sigaiticantiy inpair that obligation for serely rational,
Feasons. Because of this constraint on subsequent
Iegislatures, and thus on subsequent decisions by those vho
Yepresent the public, there funigher burden to
Setablish that's contractual obligation has been created.
ve Re nt + Ret. 173 F.3d
46, 60 (1et cir. 1999).
Based on the foregoing principles, this court mst,
with regard to Act 304, first “examine the language of the
statute’ to determine whether it provides for “the execution of a
written contract on behalf of the atate” or otherwise evinces
clear intent to bind the State to ite terms. Nat'l RRL
Passenger Corp., 470 U.S. at 466-67 (citations omitted) (emphasis
An original). the plaintiffs fail -- as they did before the
cixcuit court -- to point to any language in Act 304 showing
legislative intent to enter into a contract. Indeed, nowhere in
Act 304 does it provide for the execution of a written contract
or utilize language indicating an intent to create a contract
Nevertheless, the plaintiffs urge this court to look to “the
circumstances of Act 304s passage, including the legislative
history reflecting ite characterization as a negotiated
Settlement’ and ‘conclusion’ or *resolution[.]'* specifically,
in their complaint, the plaintiffs contended that:
‘the State executive and legislative branches and OHA entered
inte negotiations to clarify O#A's “income and proceeds from
that pro rata portion of the trust referred to int Article
XIz, Bection 4 of the Constitution of the state of Hawai’
‘The’ settlenent agreenent they reached vas docunented ae Act
30s (1990), hereinafter referred to as the "Act 304
Settlenent.* In virtually every committee report or coment
fon Act 204, the term “settlement” or "resolution is used to
Characterize the agreenent reached. In addition, the
43
*** FOR PUBLICATION ***
SSS
legisiative history surrounding Act 304 clearly demonstrates
a legislative commitment not to unilatersily repeal oF
modify Act 3
(Some brackets in original.) (Some brackets added.)
We acknowledge that the legislative history behind act
304 utilizes the terms “settlement” and *
solution.” However,
the stated purpose of the Act wa:
to clarify the basis for detersining the revenue due to
[onal for'the betternent of the conditions of native
Ravaisans under provisions of the state Constitution and
Chapter 10, Cans}
More specifically, this bill amends the definitions of
r * 2
for native Hawaiians and the
‘General public and wf 7 ws
Enangfarzed to" ronat tosetaeet fom ARG BLoEaae Fas
Hse. Stand. Comm. Rep. No. 648-90, in 1990 House Journal, at 1082
(2990) (emphases added). Further, the legislative history
indicates that Act 304 was meant to be “the first step in the
resolution of a series of complex questions about what
constitutes the extent of the trust holdings and the trust
obligations of the state to the native Hawaiians” and “Leaves
epen_for future nesotiationa the question of entitlements for
Hawaiians with less than fifty per cent Hawaiian blood and the
question of establishing a separate trust fund to benefit all
Hawaiians regardiess of blood quantum." Hise. Stand. comm. Rep.
No. 306-90, in 1990 House Journal, at 960 (emphasis added) ; Hse.
Conf. Conm. Rep. No. 91, in 1990 House Journal, at 601 (emphasis
added); pee alec Hse. Stand. Conm. Rep. No. 648-90, in 1990 House
Journal, at 108:
Sen. Stand. Comm, Rep. No. 3073, in 1990 Senate
Journal, at 1253 (1990). Therefore, we believe that the clear
-44-
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and specific stated purpose of the Act reveals that the
legislature did not intend, as the plaintiffs urge, to enter into
an enforceable contract with the plaintiffs or restrict
successive legislatures from modifying or repealing any language
therein. Accordingly, absent the "clear and unambiguous" intent
required to contractually bind the State, we hold that Act 304
does not constitute a valid and enforceable contract or
settlement agreement between the parties.
444. whether the plaintiffs can prove any
of facts entitling them to relief
As previously indicated, to recover for breach of
settlenent agreement, the plaintiffs must establish: (1) a valid
and enforceable settlement agreenent between the parties; (2) an
obligation or duty arising out of the settlement agreement; (3) a
breach of that duty; and (4) damages caused by the breach. See
Foreman Sch, Dist, No. 25 v. Steele, 61 $.W.34 801, 807 (Ark.
2001); ase also Amelco Elec, v, City of Thousand Oaks, 38 P.34
1320, 1129-30 (Cal.), xeh’a denied, 38 P.3d 1120 (2002); Eilak,
594 8.B.2d at 619, Based on our conclusion that Act 304 did not
constitute a valid and enforceable settlement agreement, we
conclude that the plaintiffs’ claim for breach of settlenent was
properly dismissed."
Based on ovr conclusion that Act 304 did not constitute # contrs
or settienent agreenent, the plaineitfe’ claim regerding the Contract Claube
of the United States Constitution similarly fails to state a claim upon which
Fellef could be granted. See In ve Herrick, 62 Hawai'l 329, 340, 922 P.2d
342, 953 (2996) (noting that, deciding whether a state lav has violates
the’ (Contract Clause], we sust assay the following celeeriarn Gh
(continued...
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¢. violation of HRS chapter 10
‘The plaintiffs additionally allege in their complaint
that the State “violated H.R.S. Chapter 10[.]" HRS chapter 10 ie
entitled ‘office of Hawaiian Affaire" and is divided into two
Parte: (1) “GENERAL PROVISIONS” and (2) “REVENUE BONDS.” The
plaintiffs do not allege which sectione of HRS chapter 10 the
State violated; however, the only sections in HRS chapter 10 that
Rs
could be read as mandating any action by the state
§§ 10-1 (1993), 10-13.3 (Supp. 1997), 10-3.5 (1993), and 10-14.6
(2993).
4. MRS § 10-2
HRS § 10-1" reiterates the State's trust obligation to
native Hawaiians and places on the state the ‘duty and
responsibility" to actively work toward the goals of HRS chapter
10 and to cooperate with and assist OHA. If the plaintiffs
*(.. .continved)
whether the sta
relaticnship(.]*" (inphas:
% ups § 10-1 provides:
fed ag © substantial impairment of a contractual
‘dded.})
Declaration of purpose. (a) The people of the state of
Hawaii and the United states of America as set forth and
approved in the Admission Act, established a public trust
Which includes anong other responsibilities, betterment of
‘The people of the state of
Hawail reaffireed their solenn trust obligation and
Tesponsibility co native Hawaiians and forthernore declared
in the state constitution that there be an office of
Hawaiian affaire co address the needs of the aboriginal
class of people of Hawai!
(p) Ie shall be the duty and responsibility of all
state departments and instrunentalities of state government
providing services and prograns vhich affect native
Hawaiians and Havaiiane co actively vork toward the goals of
this chapter and to cooperate with and assist wherever
Possible the office of Hawaiian af
-46-
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believe that the State violated its duties and responsibilities
under this provision, their claim is essentially one for breach
of trust, which was discussed in section IIT.A.1.a., supra.
ii. HRS $6 10-13.3 and 10-14.6
HRS § 10-13.3* sete the amount of income and proceeds
for expenditure by OHA for fiscal years 1997-1998 and 199
-1999
at $15,100,000; however, the plaintiffs have not alleged any
facts in support of a claim that the State failed to make such
Payments to OHA. HRCP Rule 8(a) (noting that a complaint shall
contain ‘a short and plain statement of the claim showing that
the pleader is entitled to relief"); In xe Genesve Data Teche.,
Inc., 95 Hawai'i 33, 41, 18 P.3d 895, 903 (2001) (*Hawaii’s rules
of notice pleading require that a complaint set forth a short and
plain statement of the claim that provides defendant with fair
notice of what the plaintiff's claim is and the grounds upon
which the claim rests.” (Citations omitted.)). Similarly, HRS
HRS § 10-13.3 provides:
Interim revenue. Notwithstanding the definition of revenue
contained in this chapter and the provisions of section
30-15.5, and notwithstanding any claimed invalidiey of Act
308, Setsion Laws of Hawaii 1990, the incone and proceeds
from the pre rata portion of the public land trust under
article XII, section 6 of the state constitution for
expendicure by the office of Wavaiian affaire for the
Eetternent of the conditions of native Havaiiane for each of
Fiscal year 1997-1996 and fiscal year 1998-1999 shall be
$15,100,000.
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§ 10-14.6% relates to various legislative duties; however, the
plaintiffs have not alleged any facts supporting an argument that
the legislature failed to perform such duties. HRCP Rule 8(a);
Inte Genesya Data Techa., Inc., 95 Hawai'i at 42, 18 P.3d at
903. Thus, without alleging any facts supporting a claim that
the State violated HRS §§ 10-13.3 or 10-14.6, we do not believe
that the plaintiffs stated a valid claim that the state violated
these provisions.
444, MRS § 10-23.5
HRS § 10-13.5" requires the state to pay twenty
percent of all funds derived from the public land trust to OHA.
Although Act 304 amended HRS § 10-13.5, the QHA I decision
invalidated Act 304 and reinstated the immediately preceding
version of HRS § 10-13.5, which was in effect at the time
Yamasaki was decided. HAI, 96 Hawai'i at 400, 31 P.3d at 913.
However, *[i]n Yamasaki, this court determined the issues
presented in this intragovernnental dispute to be nonjusticiable
due to the lack of judicially discoverable and manageable
% MRS § 10-16.6 provides:
Legislative review. The legislature shall consider the
boerd's proposed program and financial plan; evaluate
alternatives to the board's recomendations; and appropriate
y general fund portion of the budget and any matching
HRS § 10-13.5 provides:
Use of public and trust proceeds. Twenty per cent of all
funds derived fron the public land trust, described sn
ction 10-3, shall be expended by the office, as defined in
section 10-2, for the purposes of this chapter.
n48-
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standards for determining the specific revenues to which OHA was
entitled to receive under HRS { 10-13.5." Id, at 400, 31 P.3d at
913 (citing Yamasaki, 69 Haw. at 175, 737 P.2d at 458) (emphasis
added). In other words, the Yamasaki court held that application
of HRS § 10-13.5 presented a nonjusticiable political question.
As such, the Yamasaki case was dismissed for lack of
justiciability, Similarly, after invalidating Act 304, the OHA T.
court was placed in the same position as the Yamasaki court and,
thus, dismissed the c
stating: "In the absence of the
substantive definition of ‘revenue’ provided in the now invalid
Act 304, this court is again left with no judicially manageable
standards by which to discern what specific funds OHA ie entitled
to receive under chapter 10, without making ‘an initial policy
determination . . . of a kind normally reserved for nonjudicial
@iscretion.’* Id, at 401, 31 P.3d at 924 (citing Yamasaki, 69
Haw, at 174-75, 737 P.2d at 458).
In the instant case, the plaintiffs may be under the
impression that the State violated HRS § 10-13.5 by not paying
various income, proceeds, and revenues to OHA thereunder.
However, inasmuch as the current version of HRS § 10-13.5
provides no “judicially discoverable and manageable standards for
determining the specific revenues to which OHA was entitled to
receive under HRS § 10-13.5[,]* any claim that the state violated
this provision presents a nonjusticiable political question and
must be dismissed as this court did in Yamasaki and HAI. Id.
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at 400, 31 P.3d at 913 (citation omitted). Therefore, we
conclude that the plaintiffs can prove no set of facts
establishing that the state violated any of the provisions in HRS
chapter 10 and, therefore, hold that the circuit court did not
err in dismissing thie claim.
Accordingly, inasmuch
the plaintiffs’ firet amended
complaint (asserting claims for breach of trust, breach of
settlement agreement, violation of the Contract Clause, violation
of HRS chapter 10, and mis
presentation and non-disclosure)
failed to state any claim upon which relief could be granted,
dismissal of the complaint was warranted and, as auch, we affirm
the circuit court's order dismissing the complaint.
Bow Circuit Court Abused Ite Discretion in
Denying the Plaintiffs’ Motion to Amend
‘The plaintiffs next contend that the circuit court
erred in denying their motion for leave to amend their first
amended complaint. They contend that the revised second amended
complaint sought justiciable declaratory relief and that,
therefore, they "should have been accorded a chance to pursue
justiciable relief[.]* Furthermore, although the plaintiffs
acknowledge that a court may deny a motion for leave to amend a
complaint when the amendments are futile, they argue that *[t]he
requested amendments were not futile, because [the plaintiffs’)
claims for declaratory relief and other non-danages relief was
not ‘frivolous’ or ‘legally insufficient on its face. (']*
-s0-
*** FOR PUBLICATION ***
‘The state argues:
‘There is no abuse of discretion in denying a motion
tor leave te amend when the proposed amendnent. would be
futile. Here, the proposed amendments could not begin to
Overcone (the plaintiffs’) failure to state viable clains
for breach of contract or breach of trust, the
hon-Justiciability of the complaint, the jurisdictional bars
Sf sovereign immunity and the statute of limitations, the
Constitutional separation of powers chat requires
Yegisiative rather than judicial action to fill the Act 304
Yoid, and the legal consequences of the prior adjudication
Tn lat. “te circuit court properly exercised ite
Aleeretion in denying leave to re-anend.
ERCP Rule 15(a) (2000) governs the plaintiffs’ request
to amend their complaint and provides in pertinent part
Amendments. A party may anend the party's pleading once at
a'natter of course at any tine before a responsive
fe"terved or, if the pleading ie one to whieh no re
Pleading is persitted and the action has not been placed
pen the trial calendar, the party may 40 amend it at any
tine wiehin 20 days after ie is served. Otherwise a party
‘zitten consent of the adverse party: and leave shall be
(Euphasie added). Inasmuch as HRCP Rule 15(a) is identical to
FRCP Rule 15(a), this court has looked to the general standard
applied by federal courte in interpreting this rule. Gonsalves
v.Nissan Motor Corp,, 100 Hawai'i 149, 160, 58 P.3d 1196, 1207
(2002) (noting that, “[i]n interpreting (HRCP Rule 15(a)], this
court has looked to the general standard applied by federal
courts"); cf. Beneficial Hawai'i, Inc, v, Casey, 98 Hawai'i 159,
167 n.9, 45 P.34 359, 367 n.9, reconsideration denied, (2002)
(where, ag with HRCP Rule 15(a), a HRCP is patterned after an
equivalent rule within the FRCP, interpretations of the rule by
the federal courts are deemed to be highly persuasive in the
reasoning of this court.” (Citations omitted.)); Hirasa v.
Burtner, 68 Haw. 22, 25, 702 P.24 772, 775 (1985) (noting that
osi-
*** FOR PUBLICATION ***
SSS
HRCP Rule 15(a) “is identical to Rule 15(a) of the Federal Rules
of Civil Procedure). For example,
it
330, $88 Poza 1193 (ibe) 1
following statenent of the general standard enployed under
Rule i5(a) by the federal courte:
‘ich ag undue delay, bad faith or dilatory nerive os
Ehe part of the movant, repeated failure to cure
Geficiencies by anendnente previously allowed, undue
Brejudice to the opposing party by virtue of allovance
Sf tne srendnent . Eutility of amendneat. te. "~~ he
givenst (fonanv favig, 372 0.8. 176, at Te? #3
S.ce. 227, at 230, 9b. Ba, 24 232).
Fed. Hone Loan Mortgage Corp, v, Transamerica Ing. Co,, 89
Hawai'i 157, 162, 969 P.2d 1275, 1280 (1998) (citing Associated
Eng/ts_& Contractors v, State, 58 Haw. 187, 218-19, 567 P.24 397,
417 (1977)) (brackets and ellipses pointe in original) (emphasis
added); gee algo Gonsalves, 100 Hawai'i at 160, S@ P.3d at 1207.
Therefore, where the proposed amendments to a complaint are,
Anter alia, futii
the amended complaint. See, ¢.4,, Lucente v, IBM, 310 F.3d 243,
258 (2d Cir. 2002) (“One appropriate basia for denying leave to
@ court may deny a motion for leave to file
amend is that the proposed amendment is futile." (Citations
omitted.)). Federal courts have further explained that *[a]n
amendment to a pleading is futile if the proposed claim could not
withstand a motion to dismiss pursuant to [FRCP Rule] 12(b) (6).
lucente, 310 F.3d at 258 (citation omitted); see also Bradley v.
al-Meiias, 379 F.3d 892, 901 (10th Cir. 2004); Vargas-Harrison
Ws Racine Unified sch, Dist., 272 F.3d 964, 974-75 (7th Cir.),
reba denied, 272 F.3d 964 (2001), cert, denied, 537 U.s. 826
(2002); Alvin v. Suzuki, 227 F.3d 107, 121 (34 Cir. 2000).
-52-
*** FOR PUBLICATION ***
Accordingly, if this court determines that the proposed second
amended complaints could not withstand a motion to dismiss for
failure to state a claim, the circuit court did not abuse ite
discretion in denying the plaintiffs’ motion to amend.
Im the instant case, the plaintiffe twice sought to
amend their firet amended complaint -- once prior to the circuit
court’s oral dismissal of the firat amended complaint and once
thereafter. However, the claims presented in each proposed
second amended complaint were identical. specifically, both
second amended complaints deleted the claim for
*misrepresentation and non-disclosure and added a claim alleging
that the State “breached the covenant of good faith and fair
dealing implied in the Act 304 Settlement [.]* Inagmuch as this
court must determine whether the claims in the second amended
complaints would survive a motion to dianiss for failure to state
a claim and because we have already analyzed and concluded that
the claims in the first amended complaint were properly
dismissed, we now examine the sole new claim alleged in the
Proposed second amended complaints.
‘The plaintiffs’ claim for breach of good faith and fair
dealing is based on their belief that “the state’s failure to
oppose the FAA’s position not only constitutes a breach of the
Act 304 Settlement as a contract but also the covenant of good
faith and fair dealing implied in the Act 304 Settlement (.]" tn
other words, the new claim ie inextricably linked to the
o53-
*** FOR PUBLICATION ***
plaintiffs’ allegation that Act 304 constituted a settlement
yetion
agreement or contract. However, as discussed in
TIL.A.1.b.ii., supra, neither the language nor circunstanc
Surrounding Act 304’ enactment evinces the clear and unambiguous
legislative intent to contractually bind the state to Act 304s
terms and, as such, it cannot be said that Act 304 constituted a
settlement agreement. Inasmuch as the plaintiffe cannot
ablish that the State entered into a valid, enforceable, and
binding settlement agreement with the plaintiffs, we conclude
that the plaintifts can prove no set of facts entitling them to
relief based on this new claim. ‘Therefore, the proposed claim of
breach of good faith and fair dealing, Like the other claims in
the second amended complaints, fails to atate a claim upon which
relief could be granted and would not have aurvived a motion to
oni:
- Consequently, the proposed complaints are futile.
Accordingly, we hold that the circuit court did not abuse its
discretion in denying the plaintiffs’ motion to amend.”
inasmuch as the plaintiffs have failed to atate any claim upon
which relief could be granted, there existed no claine for the cirevit court
fo Biturcate. As such, we hold that the circuit court Gid not abuse ite
Giecretion in denying the plaintiffs’ motion to bifurcate!
54
*** FOR PUBLICATION ***
IV. CONCLUSION
Based on the foregoing analysis, we affirm the circuit
courts May 19, 2004 final judgment in favor of the state.
Robert G. Klein (Nadine Y.
‘Ando and Christopher J. GY
Cole, with him on the
briefs, of Mccorriston .
Miller’ Mukai MacKinnon) Deere
and William Meheula and
David F. Fasi, with him Nova Co Nmeane
cn the briefs, of Winer .
eneula & Devens, for Fee: Sos Bean
laine ets-appelants/
Exteovappeile
Dorothy Sellers (Charleen M.
Aina, Girard D. Lau, and
William J, wynhoff, ‘with
her on the brief, Deputy
Attorneys General) for
defendant -appellee/
CONCURRENCY
I concur in the result only.
a
-55-
|
7e697e02-7dc7-4065-922b-07484fb848a3 | State v. Kamanao | hawaii | Hawaii Supreme Court | no. 26592
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAII, £8 5 «
Plaintiteenppeltee-Reapondent, = Fg
vs. Eel m
He 2 6
AnoReW KAMANA‘O, BIE oe
defendant Appel lane-Petitioner. 8
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 56708)
(By: Levinson, J., for the court’)
upon consideration of the application for a writ of
certiorari filed on June 27, 2005, by the defendant-appellant-
petitioner Andrew Kamana‘o, the same is hereby denied.
DATED: Honolulu, Hawai'i, July 6, 2005.
STEVEN H. LEVINSON
Associate Justice
ENT BY aN EY,
I respectfully dissent from the denial of certiorari.
Based on my dissent in State v. Rivera, 106 Hawai'i 146, 102 P.2d
1044 (2004), T would grant certiorari and vacate the circuit
court's sentence.
Mary Ann Barnard, XQ] es
for defendant~appellant- & Badgy by
petitioner Andrew Kamana'o
on the writ
Considered by: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, JJ
|
5c1cb11a-2ef1-4203-940d-250392867222 | Ueoka v. Szymanski | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAT'T
---000-
MEYER M. UEOKA, as Special Administrator of2 > 5
the Estate of RYOICHI OKUNO, Deceased, z
Plaintiff/Counterclaim Defendant-Appellee, ~
98:2 Wd Si Tor swag
MICHAEL J. S2YMANSKT,
Defendant /Counterclainant-Appellant,
and
‘TITLE GUARANTY ESCROW SERVICES, INC., and JOHN DOES 1-5,
Defendants,
and
JOSEPH W. HARTLEY, III, Plaintiff-Intervenor-Appellee,
MEYER M. UEOKA, Special Administrator of
the Estate of Ryoichi Okuno, Deceased,
befendant /Crossclaimant/Crossciaim Defendant-Appellee,
and
MICHAEL J. SZYMANSKI,
befendant /Crossclaimant /Crossclaim Defendant~Appellant.
(No. 25575; CIV. NO. 00-1-0439)
gat
BANK OF HAWAII, SPECIAL ADMINISTRATOR
OF THE ESTATE OF RYOTCHI OKUNO, DECEASED,
Plaintiff /Counterclaim Defendant-Appellee,
MICHAEL J. SZYMANSKI,
Defendant /Counterclaimant-Appellant,
and
‘TITLE GUARANTY ESCROW SERVICES, INC.; AND JOHN DOES 1-5,
Defendants,
and
JOSEPH W. HARTLEY, IIT,
Plaintiff-Intervenor-Appellee,
BANK OF HAWAII, SPECIAL ADMINISTRATOR
OF THE ESTATE OF RYOICHT OKUNO, DECEASED,
Defendant /Cross-Claimant/Cross-Claim Defendant-Appellee,
MICHAEL J. SZYMANSKI,
Defendant /Cross-Claimant/Cross-Claim Defendant-Appellant.
(WO, 25870; CIV. NO. 00-1-0439)
No, 25575
MOTION FOR RECONSIDERATION
(CIV. NO. 0-1-0439)
JULY 15, 2005
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.7
AND ACOBA, J., DISSENTING
‘The motion for reconsideration filed on July 1, 2005 by
the defendant-appellant, Michael J. Szymanski, requesting that
this court review its published opinion, filed on June 21, 2005
is hereby denied.
James T. Paul, Ge ~
Judy A. Tanaka,
and Colin Yost SOD rear
cog en esata Net es
appellant on the motion
Geer c, Dus +
ENT.
I respectfully dissent and would grant reconsideration.
Pay
|
ba873f97-d4ee-4b59-b518-25c4fba59902 | Medeiros v. Hawaii Department of Labor and Industrial Relations. Dissenting Opinion J. Levinson, with whom C.J. Moon joins [pdf]. | hawaii | Hawaii Supreme Court |
FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00.
SUSAN C. MEDETROS, Appellant-Appellant,
HAWAT'T DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS,
UNEMPLOYMENT INSURANCE DIVISION; EMPLOYMENT SECURITY APPEALS
REFEREE’S OFFICE; CASTLE RESORTS & HOTELS; HILO HAWAIIAN HOTEL,
Appellees-Appellees..
r—— ee
No. 24318
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 00-1-0457)
a4
SEPTEMBER 1, 2005
NAKAYAMA, ACOBA, AND DUFFY, JJ. AND
LEVINSON, J., DISSENTING, WITH WHOM MOON, C.J., JOINS
QRINION OF THE COURT BY DUFFY, J.
Appellant-appellant Susan C. Medeiros appeals from the
May 4, 2001 final judgment of the Circuit Court of the Third
Circuit, the Honorable Riki May Anano presiding, alleging that
the circuit court erred in entering the May 4, 2001 order
affirming Decision No. 0001868 of the Employment Security Appeals
Referees’ Office (ESARO) for the following reasons: (1) “the
third circuit court committed error in affirming the decision of
the Appeals Officer because the findings of the Appeals Office:
are inconsistent with the conclusion that [Medeiros] was
terminated for misconduct connected with work as set forth in
*** FOR PUBLICATION ***
OO
(Hawa!
“{ Administrative Rule (HAR)] § 12-5-51 [(1981)]"s* and (2)
“the third circuit court committed error by addressing the
Appeals Officer's factual finding, although those findings had
not been challenged, and the issue before the [circuit] court was
S WAR § 12-5-51 provides as follows:
suspension or discharge for misconduct. (a) A discharge occurs
amen anvexployer 1s the "moving party” in the termination of the
Ghployment’ relationship
Tel A suspension occurs when the employer takes action to
refuse work and remuneration to an employee without terminating
the employment relationship.
Wc) Misconduct connected with work consists, of actions which
‘show a uilful or wanton disregard of the employer's interests,
Such ae'deliberete violations of or deliberate disregard of the
Standards of behavior which che employer has a right to expect of
an employee, or carelessness, or negligence of such @ degree or
Tocurkence as to show wrongfal invent oF evil design. Mere
Tneffieiency, unsatisfactory conduct, poor performance because of
inability ex incapacity, iaelated instances of ordinary negligence
Or inadvertence, er good-faith errors in judgment or discretion
Ste not misconduct. “The misconduct shall be related to the work
Gf 'the sndividuel or the individual's status employ
(Gy Tn determining whether an individual's act constituted
misconduct” the department shail consider any relevant evidence
presented which relates to:
(2) Employee’ jong for the act or omission, and efforts to
dvoid the set or failure to act;
(2) The relevant circunstances of the case and
Eiteative effect therefrom upon the employe
y
2 fare and importance to the employer of the offended
[nterest of the employer
(4) Any lawful and reasonable cospany policy or custom:
(S} Stpuoyer's actsons to curtail er prevent, if possible, the
objectionable conducts and
(6) The nature of the act or failure to act.
(S} situations where misconduct mey be found include, but
are not’ Limited tor the following where the evidence denonstrat
(2) Onexcused absence or recurring unexcused tardiness;
(2) Altercation at work: oF
(5) Material false Fepresentations by the employee to the
employer; oF
(4) Employee's gross neglect of duty: or
{S} Employee's wilfal sisobedience of employer's directives or
Employee's Ingubordination) oF
(6) Intentional conversion of employer's property by the
employee: oF
(7) Employee's unauthorized use of intoxicants on the jobs oF
(2) Employee's wilfol and substantial abuse of the employer's
equipment. of property.
2
*** FOR PUBLICATION ***
whether the findings of the Appeals Officer supported the
[ESARO’ 5] conclusion.” (Emphasis in original.)
On appeal, Medeiros argues: (1) that she “is entitled
to unemployment compensation because the findings of the Appeals
Officer are inconsistent with [a] wilful er wanton disregard of
the (appellees-appellees Castle Resorts’ & Hotels’ and Hilo
Hawaiian Hotel's [collectively hereinafter, “the Employer")}
interest"; and (2) that “the third circuit court’s [May 4, 2001]
order affirming [the ESARO’s] decision (No.] 0001888
(hereinafter, ‘the May 4, 2001 order’], final judgment, [May 4,
2001] notice of entry of judgment [,] and order” are erroneous
“because they fail to address the inconsistency of the Appeals
Officer's findings with the Appeals Officer’ s conclusion.”
‘The appeliee-appellee Director of the Department of
Labor and Industrial Relations’ (DLIR), State of Hawai'i
[collectively hereinafter, “the Director”) counters that, “under
‘the employment insurance laws,” Medeiros’s “conduct of placing
her hands all the way around her co-worker's neck and throat and
shaking her co-worker for five seconds because she was angry at
her co-worker for causing a work schedule change[] was
misconduct” and asserts that this court should affirm the May 4,
2001 final judgnent of the circuit court “that . . . Medeiros was
disqualified for unemployment insurance benefits because she was
discharged for misconduct connected with work.”
*** FOR PUBLICATION ***
a
Medeiros replies: (1) “that the Appeals Officer was
incorrect” in affirming the Director's decision denying Medeiros
unemployment benefits because the Appeals Officer (a) “either
employed the hotel's ‘zero tolerance policy,’ which flies in the
face of the legislative intent calling for liberal construction
of Hawai"i’s unemployment compensation statute” or (b) “the
Appeals Officer . . . inconsistently concluded on one hand that
Appellant’ actions lacked wrongful intent but on the other hand
concluded they were wilful and wanton”; (2) that the Director’ s
argunent on appeal “mis-characterize[s] the unchallenged findings
[of the Appeals Officer] and . . . (would have] this Appellate
court . . . rely on findings which do not exist”; (3) that,
spased on the findings of the Appeals Officer in this case, those
cases relied upon by the Director which represent intentional
acts or life threatening acts can not be factually relevant to
the issue at hand”; and (4) that Medeiros “has met her burden of
making a convincing showing that the decision is invalid because
|. it is} unjust and unreasonable (in its] consequences.”
(internal quotation signals and citations omitted.)
For the reasons discussed below in section III, we
affirm the circuit court's (1) May 4, 2001 order affirming
ESARO’s Decision No. 0001888, and (2) May 4, 2001 final judgment.
*** FOR PUBLICATION ***
1. BACKGROUND
The following unchallenged statement of procedural
history and factual background is set forth in Decision No.
oooreea:
‘The claimant [(Lses, MedeLros)} worked as a hostess
for the Employer fron Novenber 1978 until she was suspended
fon guly 30, 2000 for placing her hands around the neck of
Co-worker.’ She was discharged effective August 9, 2000.
‘The claimant's co-worker was dissatisfied with @
policy of the Employer related to work scheduling. ‘The co-
Worker Conplained abeut the policy to the food and beverage
director and thereafter the policy was changed. Ae a result
Of the policy change, many employees” schediles changed,
Including that of the Claimant. On the morning of July 30,
2000, when the schedules changed, the clainant came up
benihd'the co-worker in the bus station of the restaurant,
Put her hands around the co-vorker’s neck and throat. and
Shook her lightly for about five seconds, and said[,) "it's
all because of you.” The claimant then voluntarily’ renoved
her hands from the (co-worker’ s) throat. The co-worker was
shocked because she nad not seen the claimant sppreaching
her, and she was offended because she did not think she
should be touched in that manner. She was not, however,
actually afraic of being hurt by the clsimant.| The claimant
land the co-worker had known each other for nine years and()
Prior to this incident were on good terns and joked around
with one another.
This incident was witnessed by another co-worker, who
did not perceive the claimant's actions az either violent or
threatening(} and who was of the opinion that the co-worker
Whose throst was grabbed “took it the wrong way.” Agter the
lincident, the three of chen sat together and taiked ane
Laughed for a few minutes. Although she participated in the
conversation, the co-worker who had been grabbed by the
throat continued to be upset but did not say anything
because she dig not want to make [a] scene. She also did
ot want te disrupt the work schedule so she did not report
the matter until her work schedule ended at about 9 of 5:30
aun.” Tash she reported the matter co the food and beverage
director. She also related the matter to the human
resources manager and the general manager.
‘These three managers then met and discussed the matter
in Light of the company’s "zero tolerance for violence”
policy. The company policy, which had been distributed to
employees, including the claimant, in 1998, provides:
“(Employer] has zero tolerance for violence in the
workplace. Violence is defined to include but is not
Tinited to: physically herming another, shoving,
5
*** FOR PUBLICATION ***
a
pushing, harassment, verbal or physical intimidation,
Egereion, brandishing weapons, and/or threats or talk
Sfviotence.. Norkplace is defined to include but is
Sot" limited tor being on Company prenizes, Company
Tine cr Company Business. No talk of violence,
[neluding Joking above violence, will be
colersted."(")
‘the managers discussed this policy and the manner st should
Be applisdt] and determined that the claimant should be
Mhspehded pending an investigation. The food and beverage
Sieector prepared a corrective action suspending the
SUSTESSE,PESLIES nex into his office on July 31, 2000, read
SENS hers] end then gave her an opportunity to make any
Stitten comments she wished. (The claimant] wrote that she
Neel poe ner hands around her co-worker’s neck, but that she
Rasrbt punched in for work at the time and that she and her
TercSEcrkers were “laughing and playing" thereafter. (1
} the company policy continu
in relevant part:
Any employee who believes that the actions or words of 3 co~
worker ye thizeeparty, constitute intimidation, harassment, or a threat
se ende should report it as soon as possible to the General Manager
Sha'ehe Corporate Husan Resources department. All complaints of
WL SMGaticn, harasenent, or threats of violence will be investigated
sesaptly and will be kept confidential to the extent possible. Any:
ceetyed uno Ls found ro have engaged in any intimidation, harassment,
srinkeae"of violence to another employes will be subject to
Serminstion-
fon August 15, 1998, Medeszos signed and dated a form entitled "Castle Resorts
HULLS Atkhonlesgment of Employes Handbook,” which provides in relevant
part
1 acknowledge receipt of the Employee handbook and agree to read
ali policies and gules contained herein. I understand that violation of
hy Pole ana/or policy say result in corrective action up to [and]
Including termination.
1 acknowledge that employment is on an at-will basis and that I oF
castle Roseres s Hotels may tetminate employment at any time, with or
Without notice, with or without cause.
1 understand that the policies described herein are not conditions
of employment and this Handbook ia not intended to create or imply =
Sbntrace ‘petueen myself and Castle Resorts & Hotels. In consideration
Sf employments and continued employment, I agree to abide with the
cesepeeeroceduress rules and regulations of castle Resorts ¢ Hotels.
scorrective action," dated July 30, 2000, described the incident.
con 7/30/00 a comptaint of physical assault has been filed against
you. Te haa been stated that upon entering your work area, you cane
(continued.
*** FOR PUBLICATION ***
The co-worker was then asked to make a written
statenent sbovt the incident. she provided the statement on
Duly"31, 2000. Her statement 014, among other things:
Sr was quite in shock as well as very upset that
this event had just occurred. My reaction consisted
Of swallowing the words and che neck grabbing,
Continuing on wich my job duties.”
“To me, anytime someone places two hands or even
fone hand on another person’s neck/throat ares, the
Sole intent of that aggressive behavior is definitely
fo choke or even hang thst person up. If she was 0
upset with the new changes and had a problen, 1 feel,
she should have taken the tine to talk personally with
you and our supervisors regarding her concerns.”
+, «I strongly felt yesterday was [2] great
example of how actions speak Louder than words. 11"
‘The information about the incident, sncluding this
statenent (,] was sent to the corporate office in Honolulu
because the managers on the Big Island were not empowered to
discharge employees. On August 08, 2000, the corporate
Office advised the general manager’ there were Sno
exceptions” to the “ero tolerance” policy and that the
Glsimant should be discharged.
The claimant had worked for the Exployer for 22 years
and had never before Been involved in such an incident
Although she had received a copy of the “sero tolerance”
Policy tuo years earlier, she cid not remember it.
*(. continued)
from Behind another employee, put your hands around her neck, [shook
her] with a slight back and forth movenent and accused her of being
Fesponsible for's change of schedule which was implemented in the
Queen’s Court restaurant. This sa in violation of company policy
located on page 37 of your handbook.” It states under the Viclence-Free
Workplace section: (*JCastle Resorte 6 Hotels has sero tolerance for
violence in the workplace, Violence is defined to include but not {be}
Limited to: physicall[y) harsing ancther, shoving, pushing, harassment,
verbal or physical intimidation, [and] coercion{.*] It also states on
page 28, ["JAny eaployee who is found to have engaged in any
intiaidation, harasesent, of threat of violence to another employee will
be subjected to termination. ("1
(Emphasis in original.)
Medeiros hand-wrote the following coments on the “corrective action”
form, ina space "provided to the employee to agree or disagree and state
Feason(s) why": “when I walked in on [che complainant and the witness,] they
were complaining about the schedule. I did put my hands around (the
Complainant’ s] ‘eck and said{, *]because of this the schedule was changed(,”)
but we were laughing and playing in the station before we all started to Work.
And wasa't punched in at that time.” (Eqphasie in original.)
1
*** FOR PUBLICATION **
a
As noted above, Medeiros was suspended on July 30,
2000. on August 2, 2000, Medeiros filed a “common application
torn” for “determination of insured status” and/or “work
registration” with the Director's Unemployment Insurance Division
(ID). on August 14, 2000, the UID mailed two notices of
unemployment insurance decisions, which effectively ruled that
Medeiros was disqualified from receiving any unemployment
insurance benefits. ‘The first notice of decision explained as
follow:
you wore enployed with the Hilo Hawaiian Hotel as a
hostess from Novenber 1978. On July 20, 2000, you were
Mapensed until August €, 2000, for physically assaulting
Snether employee. on Jaly 30,2000, you placed your hands
Ground the neck of ancther employee, and insinuated thet a
Ghanget) tn the work schedule was due to this employes.
Kiehsogh you intended che incident as joking around, the
Biker auployes felt offended and assaulted, and reported the
{ncident’ eo the Employer. The company has a zero tolerance
policy Tegerding lolsnce in the workplace, of which you
Were issued a copy at hire.
You(r] physical assault on another exployee!]
constitutes @ wilful and deliberate disregard of the
Exployer’s and the other employee's interest. As such, you
ere suspended for misconauet connected with work.
the second notice of decision essentially provided the same
explanation as the first.
on August 15, 2000, Medeiros filed an “application for
reconsideration or notice of appeal” with the UID.
on September 28, 2000, an ESARO Appeals Officer
conducted @ hearing regarding Case No. 0001688, Medeiros’ s appeal
from the UID's two August 14, 2000 unemployment insurance
decisions. Medeiros testified, inter alia, that “[she] was not
*** FOR PUBLICATION ***
joking about violence . . . [but] was just joking with her{ co-
worker.]” The Appeals Officer also heard testimony that Medeiros
was a senior line employee in the highest pay grade (“Hostess
1"), while the co-worker was a part-time bus person.
As recited above,
on September 29, 2000, the Appeals
Officer issued Decision No. 0001888, which, inter alia, cited HAR
§ 12-5-51, see supra note 1, and ruled as follows:
‘REASONS FOR DecretoN,
‘The relevant issue in this case is whether the
claimant (Lue, Medeiros) was discharged for misconduct
Connected sith work.
Misconduct connected with work consists of actions
which show a wilful or wanton disregard of the employer's
Interests, sucn as deliberate violations of of Seliberste
Gisregard of the standards of behavior which the employer
has a right to expect of an employee. (See HAR § 12-5
Si(ch.} On the other hand, isolated instances of ordinary
negligence or inadvertence, or good faith errors in juagment
or discretion are not misconduct. (Sse id-] The burden of
proof is on the employer to show that the claimant was
Sischarged for misconduct
In this case, the claimant's attorney argues that the
claimant was discharged for an isolated instance of poor
Judgment, "and the claimant testified she Delieves she was
not “Joking about violence," but was only “Joking.”
Clearly, this was an isolated instance. Nothing itke it had
happened in the claimant's 22 year of prior enploysent. In
addition, it clearly constituted poor judgeent. While the
Claimant’ did not intend to actually threaten of harm her co-
Worker, she touched her co-worker in a clestly offensive
manner and without her permission.
Nowever, when the claimant
“joking about violence,” bur was only
denonstrated a Jack of forthright n
the claimant approached her covworker for behind, placed her
hands around the claimant's neck and throat and shook her,
however Lightly, her actions clearly constituted a “joke
about violence.” ‘Sokes about violence were pronipited by
the Enployer’s zero tolerance policy. Although the policy
refers to “talk” about violence, including “jokes about
Violence,” this should not be interpreted as excluding
physical jokes about violence, Jokes need not be verbal,
8
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they can consist of physical actions. As the offended co-
Norker seated, sometimes “actions speak louder than words.”
This is one of those tines.
With or without 2 “zero tolerance policy” ageinst
violence, employers have the right to expect that their
Gigloyecs will Petrain from treating co-workers in ¢ ment
thet fan shock and upset them. The claimant in this case
breached that duty. Furthermore, she did so wilfully.
Aithough she did not intend to harm or threaten the co-
Norkers she did net plut hler hands around her co-worker’ ®
neck aad throst inadvertently or accidentelly, but
Tseontionally, Under these circumstances, it's concluded
the claimant did commit sets which showed’ e deliberate
GlSeegard of standards of behavior which the Employer had «
HSRC aspect of her. It de therefore concluded the
Eikihane was discharged for misconduct connected with . «
works
pecrsioN:
‘Te determinations of the [UI0) are affirmed. The
claimant is disqualified for benefits « «on the basis
that ane was discharged for misconduct connected with «
work.
on October 27, 2000, Medeiros filed a notice of appeal
to the eireuit court, requesting judicial review of Decision No.
0001886, pursuant to HRS $ 91-14 (1993), Hawas's Rules of Civil
Procedure (HRCP) Rule 72 (2000), and HAR § 12-5-51.
on becenber 22, 2000, Medeiros filed her opening brief
in the circuit court, arguing as follows: (1) that “the {UI0)
did not correctly apply HAR § 12-5-51 when it found that .
Medeiros’ s isolated instance of poor judgment, not intended to
actually harm or threaten, rose to the level of misconduct
connected with work”; (2) that “the DLIR incorrectly used the
Employer's ‘zero tolerance’ for violence policy to determine if
[Medeiros’ s} conduct rose to the level of misconduct connected
with work as defined by HAR § 12-5-51"; (3) that “the DLIR’s
10
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conclusion that [Medeiros’s] actions rose to the level of
misconduct connected with work is clearly erroneous in view of
the testimony and HAR § 12-5-51,” inasmuch as (a) “Medeiros did
not violate the ‘violence-free workplace’ policy” and (b)
“Medeiros{’s] actions did not rise to the level of misconduct
according to the standards of HAR § 12-5-Si(c)""; and (3) that
“the decision of the DLIR is unjust and unreasonable under the
circumstances and consequences of this case.”
On February 5, 2001, the Director filed an answering
brief in the circuit court, contending that “the Appeals
Officer's credibility determination that (Medeiros) was joking
about violence when she placed her hands around a co-worker’s
neck should not be disturbed, and therefore, the Appeals
Officer's decision that [Medeiros] violated [the] Enployer’s zero
tolerance policy against violence is not clearly erroneous.” on
February 8, 2001, the Employer filed an acknowledgment of service
of, and joinder in, the Director's answering brief.
On February 14, 2001, Medeiros filed a reply to the
Director's answering brief, asserting, inter alia, as follows:
(2) that “Camfalra vs Agsalud, 67 Haw. 212, 685 P.2d 794
(1984) [,] is the controlling case as it provides that it is not
the action of the claimant which is at issue but it is the intent
of the claimant,” such that, “[w]here the claimant’s intent does
not rise to the level of wilful or wanton disregard of the
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employer's interest {,] the act itself does not allow for a denial
of unemployment. benefits”; (2) that she “reaffirms (her) position
that . . . [the] DLIR’s reliance on the (Elmployer’s ‘zero
tolerance for violence policy’ is an improper narrowing of the
unemployment security law which is to be liberally construed in
order to achieve the beneficent legislative purpose of relief of
workers under the stress of unemployment through no fault of
their own"; (3) that “[t]he threat of violence was neither
intended nor perceived and therefore the ‘zero tolerance to
violence policy’ does not apply’
(4) that “the Appeals officer's
decision is clearly erroneous because it is inconsistent with @
determination that . . . Medeiros acted in a manner inconsistent
with her employer's interests’
(5) that “(t]he decision is
unjust and unreasonable because . . . Medeiros was suspended and
terminated after 22 years of enployment without so much as her
employer investigating the circumstances of this incident"; (6)
that “the DLIR's reliance on [the Employer's ‘automatic
suspension/zero tolerance/ne case-by-case decision’) policy in
determining whether . . . Medeiros was entitled to unemployment
insurance compensation is wholly unfair and leaves the
determination of unemployment benefits in the hands of the
employer.” (Some internal quotation signals and citations
omitted.) Medeiros also stated that she would not submit 2 reply
to the Employer's joinder in the Director’s answering brief.
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On March 16, 2001, the circuit court conducted a
hearing regarding Nedeiros’s appeal, entertaining arguments from
counsel for Medeiros, the Director, and the Employer. Following
the parties’ arguments, the circuit court orally ruled as
follows:
‘THe counr: 1 think that
not just one matter thet we look at oF one dimension thet we
Took at and certainly that's not what the hearings officer
of appeals officer looks at. [The Appeals Officer] looks at
fait the circumstances, and she did make a finding that it
Was not . . « Medeiros’ intention to scare someone oF
intention to’ choke someone... ; But that in the context
of ali that was occurring that ‘the act constituted (a)
Sufficient basis for (3) finding of misconduct under the
Unemployment law and, therefore, preciuded the recovery by
the appellant for tne same Benefits.
Taleo agree that the record as it currently stands
« . sufficiently supports the finding of... the appeals
Officer. And... . Tuhave looked at it carefully. 1 read
Che transcript. “I try to read the transcript because I know
how important it is. Given that, I look for errors,
Procedural and... factuei[} mistakes. There are none in
This recore
‘50 T am going to accord the sppesis officer() due
deference and going to deny or rather affizm the appeals
offices’s decision.
and, of course, [Medeizos's Counsel,} that
renedy ana that ie further appeal
[Wedeiros’s Counsel:) Yes, Your Honor.
And 1 think we! ve made a secord teday of
my reasons.
on May 4, 2001, the circuit court entered an order
affirming Decision No. 0001888, ruling in relevant part as
follows:
The Appeals Officer considered all the facts of this
case An reaching the decision that. . - Medeiros was
Gischarged for misconduct connected with work. the Appeals
Otficer’s decision is supported by the relisbie, proseciver
and substantial evidence in the record and the [etrea!t
Clourt is satisfied that . . . Decision (No.] 0001888 ie not
clearly erroneous
Based on the foregoing
dated Septenber 29, 2000, 13
Medeiros is denied
= Decision {No.] 0001888
ciemed and the appeal of
43
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a
‘That same date, the circuit court entered final judgment in favor
of the Director and the Employer and against Medeiros.
on May 30, 2001, Medeiros timely filed a notice of
appeal.
TT. STANDARD OF REVIEW
Review of @ decision made by the circuit court
upon its review of an agency's decision is @ secondary
“peal: the standard of review is one in which this
wire ust determine whether the circuit court was
Signe or wrong in ite decision, spplying the standards
Hetforth in ans $ 91-19(g) ((1998)] to the agency’
Secksion.
uns § Si-14, entitled “Judiclad review of contested cal
provides in relevant part:
ig) Upon Feview of the record the court may
affiem the Secision of the mand the. c
Guth instructions for further proceedings: or it may
Teverse of modify the decision and order if the
EiEstanciai rights of the petitioners may have been
Srejudiced because the adinistrative findings,
Eonlusions, decisions, or orders are:
{i)"" in violation of constitutional or
statutory provisions; or
(2) Inexcess of the statutory authority oF
Jurisdiction of the agency! oF
(3) ade upon undawfal procedure; or
(G) Retectea by other error of law) oF
(5) Clearly erfoneous in view of the reliable,
probative, and substantial evidence on the
Mhole record; oF
(6) Arbitrary, of cepricious, or characterized
By abuse of discretion or clearly
Ghwarranted exercise of discretion.
[w)nder HRs § 91-14(g), conclusions of law are reviewable
{nsor subsections (1), (2) and (4); questions regarding
procedirel defects inder subsection, (3); findings of fact
Biger subsection (5) and an agency's exercise of discretion
Under subsection (6).
AEL“CIO, 107 Hawai'i 178, 183, 111 P.3d $67, 592 (2005) (quoting
Paul's Elec, Serv., Inc. v. Befitel, 104 Hawai
412, 416, 91
ua
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P.3d 494, 498 (2004) (citations and some quotation signals
omitted) (brackets in original).
B. Construction of Administrative Rules
‘The general principles of construction which
apply to statutes also apply to administrative rules.
AS in statutory construction, couree look first st an
Saninistrative rule's language. If an adninistestive
rule's Language is unambiguous, and its literal
application is neither inconsistent with the policies
of the statute the rule implements nor produces an
absurd or unjust result, courts enforce the rule's
plain meaning.
t 88 Haw. S16, 325 119 Brad 963, 550 (1908)
(eitatsone omiteed)
Allstate Ins. Co, v. Ponce, 105 Hawai'i 445, 454, 99 P.3d 96, 105
(2004) (quoting In xe Doe Children: John, Born on January 27.
1982,_and Jane, Born on July 31, 1988, 105 Hawai'i 38, 53, 93
P.3d 1145, 1160 (2004) (quoting In_xe Wai‘ola O Moloks'i, Inc.,
103 Hawai'i 401, 425, 83 P.3d 664, 688 (2004) (quoting Lee ve
Elbaum, 77 Hawai'i 446, 457, 887 P.2d 656, 667 (App. 1993)))).
ITT. DiscuSsION
Medeiros contends in her opening brief that (1) in
Light of the Appeals Officer's findings of fact (FOFs) in
Decision No. 0001988, the Appeals Officer wrongly concluded that
Medeiros “did commit acts which showed a deliberate disregard of
standards of behavior which the Employer had a right to expect of
her,” such that Medeiros “was discharged for misconduct connected
with . . . work,” and (2) the circuit court erred in entering its
order affirming Decision No. 0001888 and the accompanying final
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judgment because of the foregoing inconsistency between the
Appeals Officer's FOFs and conclusion of law (COL). We disagree.
AL *Disquats 2 " =
‘The cl
r and unambiguous language of HRS § 383-30
(1993) states that an individual is disqualified from receiving
benefits under Hawai'i unemployment security law when the
employee is discharged for misconduct connected with work.
specifically, section 383-30 provides:
Disqualification for benefita. An individual shell be
Giequalified fer benefits:
(2) Discharge or suspension for misconduct. For any week
prior to October 1, 1989, in which the individual hee
Been discharged for mis on ‘sith
Ges coneinsing until the individual has, subsequent to
the week in which the discharge occurred, been
Enployed for at least five consecutive weeks of
Geploynent.. For the week in which the individual has
Been Zuspendes for misconduct connected with work and
fer net ess than one or more than four consecutive
Necks of unemployment which insediately follow such
Meck, ss ceternined in each case in accordance «ith
the derloveness of the misconduct. For the purposes
Of this paragraph, “weeks of exployment” means all
Chose weeks within each of which the individual has
performed services inemployment for not less than two
Says or four noure per week, for one or more
SeBiojers, whether or not such employers are subject
fortis chapters For any week besinning on and after
Sceober 1, 1989; in which the individual has been
Gischarged for misconauct connected with wo!
Gntil the individual has, subsequent to the week in
hich the discharge occurred, been paid wages in
Covered employment equal to not less than five times
the indiviguel's weekly benefit amount ag determined
under section 383-22(b)
(Emphasis added.) The statute’s lack of ambiguity is both
confirmed and explained by a review of its statutory history
within the context of Hawai'i unemployment security law. As set
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forth below, this history shows that the intent of the
unemployment benefits provisions is to pay benefits only to those
claimants who became involuntarily unemployed through no fault of
their own,
1. HRS § 383-30(2) Prior to 1976
Prior to 1976, HRS § 383-30(2)* allowed individuals
discharged for misconduct to receive unemployment benefits after
waiting out a minimum disqualification period of three weeks, and
which allowed those suspended for misconduct to receive benefits
without any disqualification period.*
2. The 1976 Amendment to HRS § 383-30(2)
In 1976, Section 383-30(2) was amended by Act 157 of
the Session Laws of Hawai'i of 1976 to provide that an individual
be disqualified for benefits:
For the week in which he [or she) has been discharged or suspended
for misconduct connected with his (oF Ref] work, and continuing
until he [or she] tas, subsequent to the week in which the
Gischarge or suspension occurred, been employed for at least five
consecutive weeks of employment.” For the purposes of thi:
Subsection, “weeks of employment” means all those weeks within
each of which he [or she] has performed services in employment for
hot ess than two days or four hours per week, for one oF more
“The pre-1976 HRS § 383-30(2) provided that an individual was
dinqualified for benetite:
For the week in which he has been discharged for misconduct
connected with his work and for not less than two or more chan
Seven consecutive wocks of unemployment which inmediately follow
Such week, as determined in each case in accordance with the
Seriousness of the misconduct
HRS § 383-3012) (1968)
* In 1973, this court held thet the words “discharged for misconduct” as
then provided for by HRS 3€3-30(2) did not include suspension for misconduct
jateon Terminals, te. a, 54 Haw. 563, 568, 512 P24 1, 3 (1993)
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‘employers, whether of not such employers are subject to this
chapter
1976 Haw. Sess. L. Act 157, § 2 at 293. The effect of the 1976
amendnent to HRS § 363-30 was to narrow the scope of unemployment
benefits coverage by expanding the minimum disqualification
period for receiving unemployment benefits to five weeks when an
individual was discharged or suspended for misconduct connected
with work.
Act 157 arose out of Senate Bill (SB) 2326-76, entitled
“A Bill for an Act Relating to Employment Security." In
explaining the purposes of $8 2326, the Senate Hunan Resources
Committee stated as follows:
‘The purpose of this bill ‘s to make several amendnents to the
inenpleyment Conpensation Law to engure that benefits are paid
pely te those claimants ho are au ef 1
fe daule of their oun, co provide the seans to detect and prevent
Pizodutent claims, and to provide adequate financing of the
Unemployment Insurance Trust Fund to restore its solvency.
‘The specific proposals are
2. to amend the provisions for disqualification due to voluntary
Separation from exployment without good cause (Section 303-30(11),
Gigeherge or suspension for misconduct (Section 383-30(2)), end
faliure wiehout good cause to apply for oF accept suitable’ work
{Section 283-30(8)) in order to require an individual to requality
for benefits by beconing employed for # minimum of five
Consecutive weeks subsequent to the disqualification, and then
Being seperated from such subsequent employment under non~
Slaquelitying conditions, Under the present law, an individual
Sisduslified for any ef the aforenentiones reasons may not 4ré
Benefits for three to elght weeks; however, after serving his [or
Ret] ‘sisgualificstion period, the indiviaual may then draw his [or
her] full benefit entitlesent, if he [or she] is otherwise
MEjbie co'se so. dhe intent of the law is to pay benefits to
workers who axe involuntarily unemploved, Under the proposed
‘GEendeent. an indivicual who caused bis Tor_her| un unemploveent
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bis for her) attachaant to che labor force by working subsequent
Sen. Stand. Comm. Rep. No. 352-76, in 1976 Senate Journal, at
1037-38 (emphases added). The House Labor and Public Employment
Committee similarly noted that the disqualification provisions
for misconduct and voluntary separation were being amended to
require “unemployment insurance claimants to work five
consecutive weeks in order to requalify for benefits if they
voluntarily quit their jobs without good cause, were suspended or
fired for misconduct or failed to apply for suitable work” in
order to “correct weaknesses in benefit provisions.” Hse. Stand.
comm. Rep. No. 776-76, in 1976 House Journal, at 1647 (emphasis
added). The report added:
[B)ecause the State's unenployzent program was established to
aitigate the effects of susden or extended unemployment on the
involuntarily onenployed, si howl
‘Ausonatie fay the eorker who-by bis actions. creates his own
Stemotsvmene
‘Id, at 1648 (enphasis added).
‘The statutory history of HRS § 383-30(2) is thus
consistent with the plain language of the statute: individuals
discharged for misconduct connected with work are disqualified
from receiving unemployment benefits, at least until the
statutory disqualification period has been satisfied.
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B. HAR 12-5-51,
As noted above in note 1, HAR § 12-5-51(c), adopted to
define “misconduct connected with work” under HRS § 383-30(2),
provides that:
Misconduct connected with work consists of actions which
Show a uiliol or wanton disregard of the gmplover's
interests, such a
digtesard of the ecandards of behavior which the empiover
hess right to expect of an-emploves, or carelessness, or
negligence of auch a degree or Fecurrence es to show
wrongful intent or evil design. Mere inefficiency,
Unsatisfactory conduct, pose performance because of
Inspility or incapacity, isolated instances of ordinary
negligence or inadvertence, or good-faith errors in judgment
or discretion are not misconduct. The alsconduct shall be
(Emphases added.)
HAR § 125-51 (d) in turn provides that, in determining
whether an individual's act constituted “misconduct” for
unemployment insurance purposes, the Director shall consider any
relevant evidence presented which relates to:
(1) Employee's reascns for the act or omission, and efforts to
avoid the act or failure to act
(2) The relevant circunstances of the case and any causative
effort therefrom upon the employee's actions:
(3) The nature and inportance to the employer of the offended
Interest of the exployers
(4) Any lawful and reasonable company po
(8) Empuoyer's actions to curtail or pre
objectionsble conduct; ana
(6) The nature of the act or failure to act.
cy of customs
nt, if possible, the
‘An analysis of the factors listed in HAR § 12-5-51(d)
shows that Medeiros’s actions constituted “misconduct” for
unemployment insurance purpo:
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Employee's reasons for the act or omission, and efforts
te avoid the act or failure to act.
The Appeals Officer found that Medeiros’s conduct was
prompted by a change in her work schedule, which she attributed
to her co-worker’s complaint to management about work schedules.
Medeiros’s statement, “It’s all because of you,” accompanying her
physical contact with her co-worker's neck and throat, further
shows that Nedeiros’s reason for acting was that she blamed her
co-worker for a change in her work schedule with which she was
displeased.
The Appeals Officer found that Medeiros’s conduct was
related to the change in her work schedule, which became
effective on the day of the incident. The Appeals officer also
found that change in work schedules was occasioned by her co-
worker’s complaint to management.
3. The nature and importance to the employer of the
offended interest of the employer.
As noted above in note 2, the Employer had a “zero
tolerance for violence in the workplace” policy, which policy vas
distributed to employees, including Medeiros, in 1998. This
policy defined “violence” as follows:
Miolence is defined to include but is not limited t
physically harming another, shoving, pushing, harassment,
verbal or physical intimidstion, ceereion, brandishing
weapons, and/or threats or talk of violence... . Ne talk
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ef violence, including iokina sbout vislence, will be
Eolerated:
(Emphases added.) The policy further provided the following
warning: “Any employee who is found to have engaged in any
intimidation, harassment, or threat of violence to another
employee will be subject to termination.” (Emphasis added.) The
importance of the Employer's “zero tolerance for viclence in the
workplace” policy cannot be disputed.
4, Any awful and reasonable company policy or custom.
Tt cannot reasonably be disputed that the Employer's
‘zero tolerance for violence in the workplace” policy is a lawful
and reasonable conpany policy.
5. Employer's actions to curtail or protect, if possible,
the objectionable conduct.
‘The Employer’s “zero tolerance for vii
nce in the
workplace” policy was distributed to all employees, including
Medeiros, in 1998, and Medeiros acknowledged receiving it.
6. The nature of the act or failure to act.
Medeiros, then a full-time, senior restaurant hostess,
does not dispute the Appeals Officer's finding that she
approached her co-worker, @ part-time restaurant bus person, from
behind in the workplace, placed her hands around her co-worker’ s
neck and throat, and shook her lightly for approximately five
seconds, while saying, “It’s all because of you.” Medeiros also
does not dispute that her above-described actions were
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intentional with respect to her conduct (i.e, that she intended
to place her hands around the co-workers neck and throat).
Although Medeiros does not dispute her objective conduct, she
contends that because she did not subjectively intend to harm or
threaten her co-worker as a result of that conduct, she cannot be
said to have wilfully or wantonly disregarded her Enployer’s
interest in eliminating violence in the workplace. We disagree
because, as set forth in this court's prior decisions and
discussed below, the level of culpability required to show wilful
or wanton disregard is not subjective intent, but conscious
@isregard of a known (or which should have been known) risk with
respect to @ result of the conduct.
In summary, an analysis of the HAR § 12-5-S1(d) factors
shows that Medeiros’ s actions constituted “misconduct connected
with work.” We thus agree with the Appeals Officer's conclusion
that Medeiros’s conduct demonstrated a wilful or wanton disregard
for the standards of behavior which the Employer had a right to
expect of Medeiros, and constituted misconduct connected with
work. We are not persuaded by the dissent’s contention that the
Appeals Officer's findings that the incident in question was “an
isolated instance” and “constituted poor judgment” necessarily
result in Medeiros’s conduct falling within instances enumerated
in HAR § 12-5-51(c) of what does not constitute misconduct. ‘The
portion of this rule which Medeiros refers to
not constituting
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misconduct is “isolated instances of ordinary negligence or
inadvertence, or good faith errors in judgment or discretion,”
both situations of simple negligence or mistake. The nature of
Medeiros’s conduct, however, was not negligence; as discussed
herein, Medeiros admitted that she intended the physical contact
with her co-worker (and does not deny telling the co-worke!
“It's all because of you,” while placing both of her hands around
her co-worker’s neck and throat, and lightly shaking her).
‘Therefore, although Medeiros’s conduct did represent an isolated
Ancident, it nevertheless fits within the definition of
“misconduct connected with work” set forth in HAR § 12-5-51, as
the Appeals Officer correctly concluded.
D. vant Prior Decisions is Ci
‘This court has on two previous occasions considered the
issue of “misconduct connected with work" under HAR § 12-5-51 as
related to disqualification for unemployment benefits pursuant to
HRS § 363-30(2). See Camara v, Agsalud, 67 Haw. 212, 685 P.2¢
794 (1984); Hardin v. Akiba, @4 Hawai‘ 305, 933 P.2d 1339
(1997). A comparison and contrast of those cases to the instant
case, set forth below, also persuades us that Medeiros was
properly found to be disqualified from unemployment benefits due
to having been discharged for misconduct connected with work.
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Camara v. Agsalud
We respectfully submit that the dissent’s reliance upon
Camara v. Aasalud is misplaced, as Camara is distinguishable. In
Camara, the employee was discharged because he was involved in a
traffic accident. Camai
67 Haw. 212, 213, 685 P.2d 794, 795.
‘The employee, while trying to pass a slow-moving truck, crossed
the center line on the highway near an intersection. Id. The
employee felt that he could safely pass the truck: his view in
front was unobstructed, there was no oncoming traffic, and the
center line was about to change from solid to broken. Id, at
213-14, 685 P.2d at 795-86. However, @ collision ensued when the
truck made an unsignalled left turn‘ at the intersection. Id.
The employee was discharged and subsequently denied unemployment
insurance benefits based upon a decision of the Appeals officer
(also known as “referee”) for unemployment compensation appeals
that the employee “acted in wilful disregard of the mmployer’s
best interest when he proceeded to cross the solid line.” Id. at
214, 685 P.2d at 796. The circuit court reversed the Appeals
Officer’s decision, stating that (1) the Appeals Officer’s
finding that the employee believed that he could safely pass the
truck was inconsistent with his (Appeals Officer’s) determination
‘the truck driver had activated his left turn signal Light but he later
found out that the signal light was incperable. 1g. at 214, 685 P.2d at 796
Also, the Appeals Officer found that the truck was partially at fauit for the
Secident because it was slow-moving. 2d.
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that the employee acted in wilful disregard of the Employer's
inte:
1st, and (2) the employee's single driving error does not
demonstrate a wanton disregard of the employer's interests absent
other evidence of poor driving or other misconduct connected with
work, Id at 214-15, 685 P.2d at 796. Under these facts, we
agreed with the circuit court that the Appeals Officer’ s
conclusion was inconsistent with and not supported by the
undisputed facts. Id. at 217, 685 P.2d at 798, Me further
stated that the Appeals Officer’s decision was not consistent
with the beneficent and humane purpose of the unemployment
compensation statute to relieve the stress of economic insecurity
due to unemployment, and held that the statute should be
Liberally construed to promote the intended legislative policy.
Id. at 218, 685 P.2d at 798.
In affirming the circuit court's reversal of the
Appeals Officer’s decision, we noted that “(alt best, the
Employee’s action was an isolated instance of negligence or a
good-faith error in judgment.” Id. We then specifically limited
our holding to the negligence facts of Camara as follows: “We
hold that Employee’s actions does not approach the degree of
negligence or carelessness to show wrongful intent or evil design
amounting to misconduct.” Id, at 219, 685 P.2d at 798. In other
words, Camara stands only for the proposition that simple
negligence does not constitute misconduct sufficient to
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disqualify an employee for unemployment benefits under HRS § 383-
30 and HAR § 12-5-51.
The dissent makes much of the beneficent intent and
rule of liberal construction cited in Camara. While we agre
that, as a general matter, the unemployment benefits statute does
evince a beneficent intent and should be liberally construed,
neither such intent nor liberal construction trumps the clear and
unambiguous language of HRS § 383-30(2) that an individual is
disqualified from receiving unemployment benefits when the
individual is discharged for misconduct connected with work. The
Intermediate Court of Appeals spoke to this point in Keanini v.
Akiba, 93 Hawai'i 75, 86, 996 P.2d 280, 291 (App. 2000):
With respect to the legislative purpose, Claimant cites the
general principle that the “Hewai't Unesployment Security Law
Should be liberally construed in order Co achieve the beneficent
legisiative purpose of relief of workers under stress of
(yoemployment: though ne fault of their oun.” Berkoff v, Waseaaya,
55 Haw. 22, 27, 514 P-2d 575, 579 (1973) {internal quotation macke
find citation omitted). We agree; however, based upon the
foregoing discussion, Claizant cannot be said to be without fault.
(Emphases added.) We concur; where a claimant, such as Medeiros,
is found to have been discharged for misconduct connected with
work, neither the beneficent intent of the unemployment benefits
statute nor the rule of liberal construction, trumps the clear
and unambiguous language of HRS 383-30(2) that the individual is
disqualified from receiving unemployment benefits.’
> While Camara is thus distinguishable on its facts, we take this
opportunity to reconfirm Canara’ s holdings that (1) @ single act of negligence
(Continued. --)
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‘Thirteen years after Camara, this court revisited the
issue of “misconduct connected with work” in Hardin v. Akiba, 64
Hawai'i 305, 933 P.2d 1339 (1997). In Hardin, an employee w:
discharged on the basis of a single unexcused absence after
“numerous counseling sessions and notices from (her employer}
regarding her poor dependability.” Id. at 318, 933 P.2d at 1352.
lihen she applied for unemployment benefits, the Director ruled
that she was disqualified due to having voluntarily abandoned her
position without compelling reason. Id. at 309, 933 P.2d at
1343. The circuit court reversed, holding that the employee had
in fact been discharged due to unsatisfactory performance and had
not voluntarily separated. Id, The circuit court also held that
because her discharge was not due to misconduct, she was not
disqualified from receiving benefits. Id.
on appeal, this court vacated the circuit court’s
decision and directed that judgnent be entered in favor of the
employer, holding that the employee had been discharged due to
misconduct connected with work pursuant to HRS § 383-30(2) and
HAR § 12-5-51(c), and was thus disqualified from receiving
{.. continued)
in driving @ moter vehicle does not demonstrate a wanton disregard of the
enployer's interests absent cther evidence of poor driving or other misconduct
SGhnegeed with werk, and (2) our unemployment conpensation statute should, as
Sogeneral matter, be liberally construed ro pronote the intended legislative
Policy of relieving the stress of economic insecurity due to unemployrent
Shieh occurs through no fault of the employee.
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benefits. Id. at 318, 933 P.2d at 1352. The Hardin court set
forth the basis for its decision as follows:
We agree with the (Director) that (the employee), after nunerous
SSonseling sessions and notices from [the employer] regarding her
poor dependability, knew or should have known that her job would
Bein Jeopardy if she chose to leave work early without peraission
fon June 11, 1994. “Accordingly, we hold that [the employee's)
Conscious decision to leave work early on June 11 in the face of
Ehis risk constituted an unexcused absence which demonstrated =
Naliful or wanton disregard of the employer's snterests(,]" HAR §
Les5eS1 (ce), thereby disqualifying [ner] for unemployment’ insurance
benefits, ‘Consequently, we also hold that the circuit court’ s
finding that [she] was not discharged for misconduct connected
with work was clearly erroneous
in
‘The Hardin facts are different from the instant case in
that Hardin had numerous counseling sessions regarding her prior
dependability before the final incident of leaving work early
without permission which led to her termination and subsequent
disqualification from receiving unemployment benefits, while
Medeiros had no such history. The facts are similar, however, to
the extent that the misconduct involved intentional actions by
the employee. Considering the similarity, and the fact that the
misconduct by Medeiros (violation of the Employer’s “zero
tolerance for violence in the workplace” policy) is at least as
serious (and presumably more so) as the misconduct in Hardin
(poor dependability), we believe that it is appropriate to apply
the Hardin rationale to this ca
Applying the Hardin rationale to the facts here, we
conclude that Medeiros “knew or should have known that her job
would be in jeopardy” if she violated her employer’s zero
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tolerance policy regarding violence in the workplace.*
Medeiros consciously disregarded that risk when she approached
her co-worker from behind, placing her hands around her co-
worker
neck, and shaking her while saying, “It’s all because of
you" (i.e, blaming the co-worker for a change in the employees’
work schedule), even if Medeiros did not subjectively intend any
physical harm and the co-worker did not subjectively perceive any
physical threat. In its best Light, Medeiros’s conduct
constituted a “joke about violence,” which conduct was in
violation of the Employer's zero tolerance for violence in the
workplace policy, as found by the Appeals Officer. Consequently,
Medeiros’s conduct showed a wilful or wanton disregard of her
employer's interest in having a violence-free workplace, and was
in deliberate disregard of the standards of behavior which the
employer had a right to expect of an employee. AS such,
Medeizos’s conduct constituted misconduct connected with work, as
found by the Appeals Officer and affirmed by the circuit court.
Accordingly, we hold that Medeiros’s misconduct connected with
We note, however, that an employer may aot, by way of a policy or
otherwise, unilaterally narrow the qualifications for unenployment benefits or
Fedefine & legal term of art such ag "alsconduct connected with work.”
Songales v. Industrial Commission of the State of Colorade, 740 P.24'999, 1003,
(Colo. 1961] (adoption of such an approach would in effect grent employers
ultimate authority to determine that gone claimants automatically should not
Feceive unemployment. compensation benefits"). To put it plainly, an
exployer's policy (and evidence of its distribution to the claimant] can be
Felevant in identifying (1) the existence and nature of an employer's interest
Under HAR § 12-5-81(c)7 and (2) an employee's awareness of that interest, but
‘onployes’e violation of such policy is not in itself sufficient co Justify
a tinding of misconduct connected with work #0 a8 to disqualify @ claimant for
Unemployment compensation benefits.
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work disqualified her from receiving unemployment benefits
pursuant to HRS § 383-30(2).
IV. cone)
Based on the foregoing analysis, we affirm the circuit
court’s (1) May 4, 2001 order affirming Decision No. 0001888 and
(2) May 4, 2002 f4nal judgment.
on the briefs:
Robert J. Crudele, Praucter Or euattiey aenac.
Brian J. De Lima,
foward #. Shizoms, and
wid He Lawton for
appel lant-appel ant
Sh8an €: Medeiros Yorme, aaa Be
Li-ann Yamashiro,
Deputy Attorney General
for appellee-appellee
Director of Labor and
Industrial Relations,
State of Hawai't
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