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a028271f-22f6-4e4b-a9c3-24bc80fccad2 | Lee v. Clerks, Supreme Court of the State of Hawaii | hawaii | Hawaii Supreme Court | No. 27383
IN THE SUPREME COURT OF THE STATE OF HAWAI"E:
ROBIN M.S. LEE, Petitioner
CLERKS, SUPREME COURT OF THE STATE OF HAWAI'I, Respérdents—
ORIGINAL PROCEEDING
‘ORDER
Moon, C.J., Levinson, Nakayama, Accba, and Duffy, JJ.)
Upon consideration of the "Writ of Habeas C." submitted
by petitioner Robin M. S. Lee, which was filed as a petition for
weit of habeas corpus, it appears that petitioner did not pay oF
seek waiver of the filing fee for the petition and the petition
fails to show that petitioner is entitled to issuance of a writ
of habeas corpus. Therefore,
IT IS HEREBY ORDERED that the petition for writ of
habeas corpus is denied.
DATED: Honolulu, Hawai'i, July 11, 2005.
Robin M. S. Lee,
petitioner pro se
on the petition
as
|
6f543dbb-13b6-4a12-8b8c-9d7d8b9b74e9 | In re Kauai Veterans' Express Co., Ltd. | hawaii | Hawaii Supreme Court |
| 4+* NoT FOR PUBLICATION ***
: No. 24319
In the Matter of
KAUAI VETERANS’ EXPRESS CO., LTD.
To Answer a Complaint and Summons Regarding an Alleged Violation
of the State Motor Carrier Law.
APPEAL FROM THE PUBLIC UTILITIES COMMISSION
(CITATION ORDER Nos. 289 and 294)
(ey: Moon, c.J., Levinson Nakayanay Aeoba, and Duffy, 39.)
‘the appellant Kauai Veterans’ Express Co., Ltd.
Ihereinafter, “the Appellant”) appeals fron the appellee Public
UetLity Commission's (PUC) March 16, 2001 Citation Order No. 229,
which (1) adopted the PUC hearings officer's Novenber 2, 2000
findings of fact (FOF), conclusions of law (COLs), and
recomended decision and order as the PUC's final order, (2)
found and concluded that the Appellant violated Hawai'i Revised
Statutes (HRS) $§ 271-20 (1993) and 271-21 (1992), (3) assessed @
civil penalty of $20,000 against the Appellant, (4) ordered the
Appellant to cease and desist any and all activities that violate
one of more provisions of HRS chapter 271 and other applicable
notor vehicle carrier laws, rules and regulations, and (5) stated
that the Appellant should anend its tariff if it wishes to charge
per load rates instead of per hour rates and incorporate « fuel
surcharge as part of its rates, in accordance with HRS chapter
271, The Appellant alleges that the PUC's FOFs Kos. 6, 7, and 13
and COLs Nos. 4, 5, and 7, entered in the Novenber 2, 2000 Fors,
ante
‘##* NOT FOR PUBLICATION *#*
CoLs, and recommended decision and order, were erroneous. It is
noteworthy that, although the Appellant's notice of appeal states
that the Appellant appeals from both Citation Order No. 289 and
the May 4, 2001 Citation Order No. 294, the Appellant asserts no
points of error as to Citation Order No. 294. ‘Thus, we do not
address the Appellant's “appeal” fron Citation Order No. 294.
See Hawai'i Rules of Appellate Procedure (HRAP) Rule 28(b) (4)
(2001) (stating that “(ploints not presented in accordance with
this section will be disregarded”).
on appeal, the Appellant asserts as follows: (1) that
4t “cannot intentionally violate the spirit of the motor carrier
laws by charging its customers a known unjust and unreasonable
rate"; and (2) that the “use of a per-load charge formula does
not violate [HRS $] 271-21(c) and is not a different rate.”
The PUC responds as follows: (1) that its “finding
that Appellant charged a $58 per load rate to Goodfellow [Bros.,
Inc., (hereinafter, “Goodfellow”]] for Appellant's hauling
services between July 15, 1999 and January 12, 2000, is supported
by the evidentiary record” (2) that its “finding that
Appellant's $58 per load rate charged to Goodfellow for
Appellant's hauling services between July 15, 1999 and January
12, 2000, was not specified in Appellant's tariff, is supported
by the evidentiary record,” inasmuch as, (a) “even if the $59.05
per hour rate set forth in Appellant's tariff was a typographical
exror, it is undisputed that its $58 per load rate was not
specified in its tariff,” (b) “even if Appellant's correct hourly
‘++ NOT FOR PUBLICATION *#*
rate was $59.59, it is undisputed that neither this rate, nor its
$58 per load rate, were specified in its tariff,” and (c) “a per
load rate is different from a per hour rate"; (3) that its
“conclusion that Appellant violated HRS §§ 271-20 and 271-21
because it charged per load rates that were not specified in its
tariff or approved by the [PUC], is correct" (4) that its “mixed
finding/conclusion that Appellant's per load rate could have and
should have been specified in its tariff, is supported by the
evidentiary record”; (5) that its “conclusion that Appellant
violated HRS § 271-20 because Appellant's actions in establishing
4 $51 per load rate resulted in undue or unreasonable advantage
to [the Appellant], and disadvantage to the dump truck
subcontractors, is correct”; and (6) that its “finding that
between July and October 1999, Appellant charged (Denis J. Souza,
dba DJS Truck Rentals [hereinafter, “DJS")) $58.42 per hour to
haul bagasse and $65.99 per hour to haul tractor/lowboy
equipment, plus an additional 2 percent fuel surcharge, and that
such hourly rates and fuel surcharge were not specified in
Appellant's tariff, is supported by the evidentiary record.”
‘The Appellant replies as follows: (1) that “the PuC's
strict interpretation of HRS §§ 271-20 and 271-21. . . is an
absurdity, and a violation of the purpose and spirit of the Motor
Carrier Law, HRS Chapter 271, as set for{th) in HRS § 271-1"
(1993); (2) that, “for public policy reasons,” the Appellant
“should [not] be sanctioned and penalized for failing to use an
incorrect tariff rate that had never been approved by the PUC
simply because it vas published”; and (3) that, “in a commercial
‘** NOT FOR PUBLICATION +#*
transaction between two businesses dealing at arms-length,” “the
publication of the ‘hourly’ tariff rate [does not] prohibit the
conversion of that figure into another form of measurement (.]”
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 the
PUC did not err in entering the March 16, 2001 Citation Order No.
289 adopting, inter alia, FOF Nos. 6, 7, and 13 and COL Nos. 4,
5, and 7 of the November 3, 2000 FOFs, COLs and recommended
decision and order. Accordingly, we affirm Citation Order No.
289.
FOF No. 6 provides that, “{bletween July 15, 1999 and
Vanuary 12, 2000, [the Appellant] engaged in the transportation
of property . . , to and from the project site at a rate of $58
per semi-dump trailer load, and such per load rate was not filed
andpublished in accordance with [HRS] chapter 271... .” FOF
No. 7 provides that “[t]he $58 per semi-dump trailer load rate
charged to Goodfellow(] for (the Appellant's] hauling services
between July 15, 1999 and January 12, 2000 was not specified in
the A st 1, 1998 tarife me.”
(Emphases added.) ‘The Appellants do not dispute that they
utilized a $58 per semi-dump trailer load rate, The Appellant's
“Tariff 1” does not list $58 as the semi-dump trailer load rate.
Instead, the tariff provides a $59.05 rate or a $69.44 rate,
depending on the hours of service, That being the case,
notwithstanding the Appellant’s arguments to the contrary, the
PUC’s FOF Nos. 6 and 7, as a matter of fact, are not “[c]learly
‘s+ NOT FOR PUBLICATION ***
erroneous in view of the reliable, probative, and substantial
evidence on the whole record|.]” In re Gray Line Hawai'i Ltd.,
93 Hawai'i 45, $3, 995 P.24 776, 784 (2000) (internal quotation
signals and citation omitted).
FOF No. 13 states (1) that, “{bletween July and october
1999, [the Appellant] . . . charged DJS $58.42 per hour to haul
bagasse and $65.99 per hour to haul tractor/lowboy equipment plus
an additional 2 (percent) fuel surcharge” and (2) that “Ltlhe
hourly rates and additional fuel surcharge were not specified in
the Appellant’s) August 1, 1998 tariff.” (Bnphasis added.) The
Appellant's Tariff 1 does not specify any of the aforementioned
rates. As such, FOF No. 13 is not clearly erroneous.
With regard to the challenged Cots, HRS § 271-20(c)
states in relevant part that “[a]11 charges made for any service
rendered by any conmon carrier by motor vehicle in the
transportation of . . . property . . . shall be just and
nd eve for such
service or any part thereof; is prohibited and declared to be
unlawful.” (Emphasis added.) HRS § 271-20(c) also deems it
‘unlawful for any common carrier by motor vehicle to make, give,
or cause any undue or unreasonable preference or advantage to any
particular person, locality, region, district, island, or
description of traffic, in any respect whatsoever{.]” (Emphasis
added.) It is important to note that HRS $§ 271-20(d) and (e)
provide for a complaint and hearings process for connon carriers
to contest tariffs that they believe are “in violation of this
section or of [HRS] section 271-21." HRS § 271-20(d) further
‘*** NOT FOR PUBLICATION ***
states that “(wJhenever, after hearing, upon complaint or an
investigation of its own initiative, the commission shall be of
the opinion that any individual rate . . . demanded, charged, or
collected by any common carrier . . . is or will be unjust or
unreasonable, . . . it shall determine and prescribe the lawful
rate...
HRS § 271-21(b) is more specific in its mandate,
providing that “{n]o common carrier by motor vehicle shall charge
or denand or collect or receive a greater or less or different
compensation for transportation or for any service in connection
therewith between the points enumerated in the tariff than the
d cified in the tar: i
the time{.]” (Emphases added.) Furthermore, HRS § 271-21(d)
states that “(nJo common carrier by motor vehicle shall engage in
the transportation of . . . property unless the rates . . . upon
which the same are transported by the carrier have been filed and
published in accordance with this chapter.”
COL No. 4 provides as follows: (1) that, “between July
15, 1999 and January 12, 2000, [the Appellant] . . . charged per
load rates, which were not specified in its tariff in effect at
that time and not approved by the [PUC], in violation of HRS
$§ 271-20 and 271-21"; and (2) that, “between July and October
1999, [the Appellant] charged hourly rates and an additional 2
{percent} fuel surcharge, which were also not specified in its
tariff in effect at that time and not approved by the [PUC], in
violation of HRS §§ 271-20 and 271-21." Because HRS § 271-20
provides for a complaint and hearings process by which the
‘** NOT FOR PUBLICATION ***
Appellant could have challenged the tariff rates as unjust and
unreasonable, the Appellant’s contention that its only options
were to use its conversion formula or charge the “incorrect” rate
Listed in the tariff is unavailing. Moreover, insofar as HRS
§§ 271-21(b) and (d) expressly prohibits common carriers from
charging “different compensation” than the rates specified in the
tariffs and from transporting property without first having filed
and published with the PUC the rates “upon which the same are
transported,” the Appellant cannot persuasively claim that its
conversion of the hourly rate into a per-load charge, resulting
in a different and unpublished rate, does not violate HRS § 271-
21. Thus, COL No. 4 is not affected by any error of law.
The Appellant's arguments as to COL No. 5 are similarly
flawed. COL No. 5 states that, “in light of the finding that the
dump truck subcontractors were compelled by [the Appellant] to
charge a lesser rate than [the Appellant's] per load rate for
hauling aggregate material for Goodfellow(], . . . (the
Appellant's] actions in establishing 2 $51 per load rate resulted
in undue or unreasonable advantage to itself and disadvantage to
the dump truck subcontractors, in violation of HRS § 271-20." As
discussed supra, although the Appellant asserts that its
conversion formula is consonant with “the spirit and intent of
[HRS] Chapter 271,” the Appellant's employment of the formula
circumvented the complaint and hearings process of HRS $§ 271-
20(d) and (e), as well as directly violated HRS § 271-21(b).
Further to the foregoing, the Appellant’s allegation
that there is no evidence that their formula resulted in their
*** NOT FOR PUBLICATION ***
unfair advantage misconstrues the relevant burden of proof, as
set forth in HRS § 271-20(e): “At any hearing involving @ change
in arate. . . the burden of proof shall be upon the carrier to
show that the proposed changed rate . . . is just and
reasonable.” Although the Appellant failed to follow the proper
complaint and h
ring procedure, the foregoing burden of proof
nonetheless indicates that the Appellant cannot simply claim that
there is no evidence of disadvantage because it carries the
evidentiary burden. Moreover, the Appellant has failed to allege
any error as to FOF No. 11, which states that the Appellant
“compelled the dump truck subcontractors to charge a $51 per
semi-dump trailer load rate rather than the hourly rates set
forth in WHTB’s November 3, 1997 tariff or the $58 semi-dunp
trailer load rate that [the Appellant] charged Goodfellow.” See
Okada Trucking Cou. Ltd. v. Bd, of Water Supply, 97 Hawai"i 450,
458-59, 40 P.3d 73, 91-82 (2002) (“unchallenged factual findings
are deemed to be binding on appeal”). COL No. § is therefore
adequately supported by the binding FOFs and is not affected by
any error of law.
COL No. 7 provides that, because “the $58 per semi-
dump trailer load rates utilized for the Goodfellow’s project
were devised on or about March 8, 1998 by [the Appellant’ s]
formula[,]” “such per load rates could have and should have been
specified in [the Appellant's] filed and approved tariff, which
was issued on June 29, 1998 and became effective on August 1,
1998.” The Appellant’s claim that “there are too many variables
in calculating a per-load tariff rate making such a rate
NOT FOR PUBLICATION
calculation extremely difficult if not impossible” does not
effectively address HAR § 6-63-10(11), which requixes that every
tariff “explicitly state{ the rates) in cents or in dollars and
cents, per 100 pounds, per mile, per hour, per cubic foot, per
net ton of 2,000 pounds, per gross ton of 2,240 pounds, par
kiuckload (of stated azount), or other definable measure commonly
used and understood in the trade.” (Emphasis added.) In other
words, the fact that the Appellant found the per-load tariff rate
calculation “extrenely difficult” does not render nugatory HAR
§ 6-63-10(11). COL No. 7 4s consistent with HAR § 6-63-10(11)
and is not affected by any error of law. Therefore,
IT I HEREBY ORDERED that the PUC's March 16, 2001
Citation Order No, 289 is affirmed.
DATED: Honolulu, Hawai'i, July 29, 2005.
on the briefs:
Matt A. Tsukazaki
of Torkildson, Katz,
Fonseca, Jaffe, Moore grr
& Hetherington,
for appellant
Kauai Veterans’ Express Slivaileleese—
Co., Ltd.
Kevin M. Katsura, Peete Oar ane
for appellee
‘of Van Bourg, Weinberg,
Roger & Rosenfeld, for Yom, dadtgn +
‘The Hawaii Operating
Engineers Industry
Stabilization Fund
|
13c6dc38-96c9-4dba-8a76-6d51505c918e | Citizens for Equitable and Responsible Government v. County of Hawai'i; County Clerk. Concurring and Dissenting Opinion by J. Nakayama with whom C.J. Moon joins. [pdf]. S.Ct. Order of Correction, filed 07/28/2005 [pdf]. S.Ct. Order Granting in Part and Denying in Part in Motion for Reconsideration, filed 09/22/2005 [pdf]. Dissenting Opinion by J. Nakayama, with whom C. J.Moon, joins [pdf]. | hawaii | Hawaii Supreme Court | Wi Goren”
***FOR PUBLICATION***
eee
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
‘o0o--~
ee
CITIZENS FOR EQUITABLE AND RESPONSIBLE GOVERNMENT,
‘a Hawai'i nonprofit corporation; BRENDA J. FORD:
STANLEY A. BOREN; FLOYD H. LUNDQUIST; MARLENE E. LUNDQUIST;
RONALD C. PHILLIPS, Plaintiffs-Appellants
and
BEVERLY BYOUK and SANDRA W. SCARR, Plaintiffs~Appellees
vs.
COUNTY OF HAWAI'I; COUNTY CLERK, COUNTY OF HAWAI'I; LLOYD
VAN DE CAR, CHAIRMAN, COUNTY OF HAWAI'I 2001
REAPPORTIONMENT COMMISSION, Defendants-Appellees
a
No. 25614
APPEAL FROM THE THIRD CIRCUIT COURT
(crv. NO. 01-1-0092)
EVAL VRAON
aad
JULY 22, 2005
Shez Hs 22 1" soo
LEVINSON, ACOBA, AND DUFFY, JJ.7
WITH NAKAYAMA, 'J., CONCURRING SEPARATELY AND
DISSENTING, WITH WHOM MOON, C.J., JOINS
QPINION OF THE COURT BY ACOBA, J.
We hold that (1) the phrase “equal resident
populations” in section 3-17(f) (4) of the Charter of the County
of Hawaii (the Charter) excludes nonresident college students and
nonresident military personnel and their dependents from the
***FOR PUBLICATION***
population base for purposes of r
pportioning county council
districts of the County of Hawai'i, (2) a total deviation in
excess of 108 in an electoral reapportionment plan presents a
prima facie case of discrimination in violation of the equal
protection clause of the United States Constitution, (3) a
rational government policy will justify a total deviation that
slightly exceeds the 108 threshold, and (4) assuming, in
excluding nonresident student's and nonresident military personnel
and their dependents from the population base, the plan of the
County of Hawaii 2001 Reapportionment Commission (the Commission)
resulted in a total deviation of 10.89%, such a deviation in this
unigue instance (a) was minimal, (b) apparently included the
Commission's consideration of other valid criteria under section
3-17 of the Charter, (c) resulted from the commission's intent to
achieve inclusiveness and equal representation, and (d) was,
therefore, constitutional.
1
Pursuant to the Charter, Defendant-Appellee County of
Hawas‘i initiated a reapportionment of its county council
Gistricts in 2001. The Conmission was appdinted and confirmed in
accordance witha provision in the Charter requiring that in
1991, and every tenth year thereafter, a commission be
established to determine the boundaries of council districts, and
***FOR PUBLICATION***
ee
to file a reapportionment plan by December 31 of those years.? A
1 section 3-27 of the Charter under which the Commission acted
states as follows
(a) There shall be 2 county reapportionnent
commission which shall establish the boundaries of the
council districts,
tb). The initial ceapportionsent commission shall
consist of seven meabera, two of whom shall be residents of
the combined judicial districts of North and South ilo, one
fron the judicial district of Puna, one from the judicial
Glsteict of Rau, one from the combined judicial districts of
North and South Kona, one from the combined judicial
Ulstrices of North and South Kohala, and one from the
Sosicisi district of Hanaksa. The monbers shall be
Appointed by the mayor and confirmed by the council in the
manner prescribed in section 13-4.
(G)" ach subsequent. reapportionsent commission shall
consist of nine menbers,” One member shall be @ resident of
fach council district az established by the previous
SCepportionsent comission. The meabers shall be appointed
by the mayor end confirmed by the council in the manner
Prescribed in section 13-4.
‘a ard ey seat
eanpostionneat years. The reapportionment commission shall be
ERSSUREER"Ond confirmed by March 1 of the reapportionment. year,
ahd shall file a reapportionment plan with the county clerk by
Becenber 31 of the reapportionment year.
fe) The county clerk shall furnish all necessary
technical and secretarial services for the reapportionsent
Ecanission, The council shall appropriate necessary funds
fo enable the commission to carry out its duties.
TE) The reapportionment commission shall be guided by
tthe following criteria in establishing the Boundaries of the
Council districts:
(2) wo district shall be dram to unduly favor
Dr penalise a person of political factions
(2) Yneetar as possible, districts should be
Gontiquoss snd compact,
(3) Bistelet Lines shall, where possible,
follow permanent and easily recognizable
featuress
(©) Districts shal have approximately equal
Hels ution -
(g)_ The district Boundaries a established by the
reapportionment commission shall be in effect at the first
Fegularly scheduled council election following the filing of
the plan and for any subsequent councii election. The
Gistrict boundaries in effect prior to the filing of the
Feapportscnment plan shall rensin in effect during the
Guration of the term of all councilmesbers elected or
appointed to represent such districts until the expiration
OF the fu1l tezm ef such councilneabers, including any,
Glection held £0 Fill an unexpired term under section 3-4
Charter of the County of Hawaii § 3-17 (1990) (emphases added) .
3
***FOR PUBLICATION***
ee
series of public meetings and hearings was held throughout
Hawai'i County, during which private speakers argued that the
Commission was using the wrong population base and should exclude
therefrom nonresident college students and nonresident military
personnel and their dependents. The Commission adopted a
reapportionment plan (the Conmission’s plan) and filed it as
required with the County Clerk. The Commission’s plan provided
for a total resident population base that included nonresident
college students and nonresident military personnel and their
dependents.
Subsequent to the filing of the Commission’s plan,
Plaintiffs-Appellants Citizens for Equitable and Responsible
Government, Brenda J. Ford, Stanley A. Boren, Floyd H. Lundquist,
Marlene £. Lundquist, Ronald C. Phillips, (collectively,
Appellants) and Plaintiffs-Appellees Beverly Byouk and Sandra W.
Scarr filed a Complaint and First Amended Complaint against
County of Hawai'i and other Defendants~Appellees, the County
Clerk, Hawai'i County and Llyod Van De Car, Chairman of the
Commission (collectively, County Appellees) in the third circuit
court (the court)? requesting, inter alia, a declaratory ruling
that the Conmission’s plan was invalid.
Appellants moved for partial summary judgment on the
ground the Commission used the wrong population base and that,
therefore, the Conmission’s plan was unconstitutional because its
2 me Honorable RLki May Amano presided.
4
***FOR PUBLICATION***
ee
total deviation from the ideal mean exceeded 10%. Appellants
appended to their motion for sunmary judgment a letter dated
october 25, 1989, written by Christopher J. Yuen (Yuen), the
attorney representing the Comission during the drafting of the
reapportionnent plan, for the proposition that the Commission was
advised to use the same population base as used by the State
Reapportionment Commission. On June 20, 2002, County Appell
filed an affidavit by Yuen to rebut Appellants’ proposition.
Appellants moved to strike the affidavit.
Following a hearing, the court denied Appellants’
motion and sua sponte granted partial summary judgment in favor
of County Appellees. The court did not issue findings of fact or
conclusions of law, but in its July 19, 2002 order stated, inter
alia, as follows:
‘The [elourt finds that the adoption by the. . -
commission of 2 resident population base which did not
Guclude non-resident military personnel and their dependents
Gna aid net exclude non-resident university students in the
2002 council redistricting plan was proper.
‘he (clourt algo finds that there was no
unconstitutional deviation in the population count in the
County council districts ee set foreh in the 2001 council
Fedistricting plan adopted by the. . . Commission.
Following the court’s ruling, the parties agreed to withdraw all
remaining counts so that final judgment could be entered in the
case.” The court entered final judgment in favor of County
> the effect of the parties’ stipulation to amend the first anended
complaint and for entry of judgeent, was “to withdraw [Appellanta’]
Gilegatlons that the. . + Comission failed to use a ‘rational or objective
nethedology’s . . and wrongfully submerged communities of interest into larger
Gisericts Gut not [Appellants’| allegations as to the population base that the
oe Commission used.
*#*FOR PUBLICATION*
Appellees and against Appellants on January 24, 2003. Appellants
filed their notice of appeal on January 31, 2003.
11
©n appeal, Appellants maintain that the court erred in
(1) refusing to strike the affidavit of the Commission's counsel,
(2) concluding that the Commission could include nonresident
university students and nonresident military personnel and their
dependents in the population base, (3) deciding that the total
deviation between county council districts in the redistricting
plan did not exceed constitutional limits, and (4) ruling that
the redistricting plan is valid. They request an order
(2) invalidating the Commission's plan, (2) appointing a master
to prepare a new redistricting plan using the correct population
base, and (3) granting such other appropriate relief.
qr.
“unlike other appellate matters, in reviewing summary
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, $77, 670 P.2d
1264, 1270 (1983). “Summary judgment is appropriate if the
pleadings, depositions, and answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law.” Pac, Int’
Serv. Com, v. Hurip, 76 Hawai'i 209, 213, 873 P.2d 88, 92
***FOR PUBLICATION***
eee
(1994). A trial courts conclusions of law are reviewed de nove
under the right/wrong standard. Fulimoto v. Au, 95 Hawai'i 116,
137, 19 P.3d 669, 720 (2001). Under this standard, the trial
court’s conclusions of law are not binding upon the appellate
court and are freely reviewable for its correctness. Id.
w.
As to point (1), the court did not rule on Appellants’
request to strike an affidavit of the Commission's attorney.
Appellants assert that the affidavit of the Commission's attorney
iis not part of the Commission’s records and contains the opinion
land recollection of the attorney ten years after-the-fact.
County Appellees maintain that they offered the affidavit of the
Conmission’s attorney to clarify that the letter in Appellants’
motion stated only that there was a difference in reapportionment
between using residents, 2s opposed to registered voters, in
determining the population base and that the affidavit was not
introduced to reflect the intent of the charter commission.‘
Inasmuch as the affidavit was not offered with respect to the
intent of the charter commission and is not necessary to our
interpretation of the phrase “resident populations,” see infra,
we do not address Appellants’ point (1).
yuen's affidavit states that “in drafting the charter language
‘Gistricte should have ‘approximately equal resident
Eoquires by applicable constitutional provision’ the intent was
‘of equality only be as constitutionally mandated.” (Emphasis
0 the charter commission's "intent” merely confirms
‘riteria in charter section 3-17(E)-
>
***FOR PUBLICATION*
v
‘The primary issue on appeal, Appellants’ point (2), is
whether nonresident college students and nonresident military
personnel and their dependents should be excluded from the
population base of Hawai'i County’s reapportionment of city
council districts. The Charter mandates that “[dJistricts shall
have approximately equal resident populations as required by
applicable constitutional provisions [,]” Charter § 3-17(f) (4)
(emphasis added), see supra note 1, but fails to define the
phrase “resident populations.”
Appellants first argue that “resident populations”
should be interpreted in the sane manner as that term is applied
in the apportionment of state representative districts, that is,
by using a permanent resident population base. Appellants refer
to an amendment made to Article IV of the Constitution of the
State of Hawaii in 1992, when voters statewide voted to use a
“permanent resident” population base for apportioning legislative
districts. The amendment mandated that only residents having
their domiciliary in the State of Hawai'i may be counted in the
population base for the purpose of reapportioning legislative
districts. Article IV of the Constitution of the State of Hawaii
states in relevant part as follows:
he total number of menbers of
each house of the state legislature being respportioned
fanong the four basic island unite namely: (1) the island of
Mawais, (2) the islands of Maui, Lanai, Molokas and
hoolawe, (2) the island of Oahu and sll other islands not
specifically enumerated, and (4) the selands of Kauai and
Nithau, using the total number of permenent residents in
8
‘***FOR PUBLICATION***
es
‘gach of the basic island unita end computed by the method
fhow as the method of equal proportions; except that no
barie istend unit shall receive less then one menber in each
house.
Haw. Const. art. IV, § 4 (amended 1992) (emphasis added).
However, the amendment to Article IV only applies to state
legislative redistricting, not county council redistricting.
‘The Commission interpreted the Charter phrase “resident
populations” to encompass all persons who “reside within the
county” as reflected in the federal census and, accordingly, did
not exclude nonresident university students and nonresident
military personnel and their dependents in the population base
for the reapportionment plans. County Appellees argue that the
Commission's interpretation of the phrase was a discretionary
act, and, thus, under Kawamoto v, Okata, 75 Haw. 463, 868 P.2d
1183 (1994), the actions of the Commission should be accepted
unless an abuse of discretion is shown.
whe interpretation of the charter is similar to the
interpretation of a statute.” Maui County Council v. Thompson,
84 Hawai'i 105, 106, 929 P.2d 1355, 1356 (1996). when
interpreting a statute,
four foremost obligation is to ascertain and give effect to
fhe intention of the legisiature(,] which is to be obtained
primarily from the language contained in the statute itself.
Gnd where the lanouage of the statute is plain and
and-obvious “meaning.
‘Id. (quoting State v, Baron, 80 Hawai'i 107, 113, 905 P.2d 613,
619 (1995) (emphasis added). In this regard, a common definition
of “resident” is
*¥*FOR PUBLICATION*
Lalny person who occupies # dwelling within the State, has
preseot intent to remain within the State for 2 period of
By
establishing an ongoing physical presence within the state
together with indicia that his presence within the State is
Black's Law Dictionary 1309 (6th ed. 1990) (emphases added). See
Inte Irving, 13 Haw. 22, 24 (1900) ("{T]he primary significance
of the word ‘residence’ as used in the constitution is the sane
as domicil{e] -- a word which means the place where a man
establishes his abode, makes the seat of his property, and
exercises his civil and political rights.” (Quoting Chase v,
Miller, 41 Pa. 403, 420 (Pa. 1862))). This definition of
“resident” would exclude any person who did not exhibit a present
intent to remain within Hawai'i County for more than a transitory
period.
Generally, college students from outside Hawai'i County
who lack a present intent to remain in the county for a period of
time beyond their date of graduation would not be considered
residents. Their presence in Hawai'i County is primarily for
educational purposes, which is “transitory in nature.” Likewise,
ordinarily the transitory nature of military personnel from
outside Hawai'i County is apparent. Normally, military personnel
and their dependents are temporarily stationed in the county by
the United States military. Military personnel may have little
say in deciding the location of their assignment. As a result,
generally speaking, members of the military are in Hawai" County
involuntarily, as opposed to persons who choose to live in the
10
***FOR PUBLICATION***
oy
county. See Carpenter v, Hammond, 667 P.2d 1204, 1211 (Alaska
1983) (recognizing the “involuntary nature of the military
member’ s assignment to (a) state”).
‘he Charter employs the phrase “resident populations”
which indicates that the drafters of the Charter intended to
Limit the population base to residents of Hawai'i County. Those
who live in the county temporarily for educational purposes or
those who live in the county involuntarily because ordered to do
s0 would seemingly lack a present intent to remain in the county,
rendering their stay “transitory in nature.”* Logically, the
drafters of the Charter would not have modified the word
“population” by the adjective “resident” or, on the other hand,
would have employed the phrase “total population” had they
intended to include nonresident college students and nonresident
military personnel and their dependents in the population base.
Accordingly, we hold that the phrase “resident
populations” found in the Charter excludes nonresident university
students and nonresident military personnel and their dependents
from the population base of the county council reapportionment
plan. The court, therefore, was wrong to conclude that the
Commission’s inclusion of these nonresidents was proper.‘
5 opetously, @ person who otherwise ostensibly falls within such
categories but establishes 4 present intent to remain in the county and
Gthibics indicia that his or her presence is something other than nerely
Elansitory may establish resident status. See Black's Lav Dictionary st 1309.
Inasmuch as we determine the phrase “resident populations” to be
plain and unasbiguous, We need not examine the 1990 charter commission’ s
(continued...)
un
***FOR PUBLICATION***
vr.
While we must interpret the term “resident
populations,” we note that no dispute is raised by the parties as
to whether the persons designated as residents or nonresidents
were properly denominated as such. Appellants note that “in
2001, State officials had access to an improved database and
software program and had the ability to collect data that enabled
state officials to identify and locate nonresident students,
nonresident military personnel and nonresident military
dependents with reasonable accuracy.” (Emphases omitted.) Thus,
argue Appellants, *{i)t was also possible to identify these sane
individuals for the purpose of establishing county council seats
for the County of Hawaii County Council.”
County Appellees do not deny the availability of such
technology nor challenge its feasibility. In fact, they
apparently relied on the State’s database and computer program to
support their motion for partial summary judgment. In an
affidavit attached as “Exhibit D" to County Appellees’ motion for
partial summary judgment, David J. Rosenbrock, data processing
coordinator for the State of Hawai'i Office of Elections, stated
*..continued)
records to ascertain the county electors’ intent in adopting the phrase. In
any event, Appellants maintain that aside from evidence that the charter
Commission “clearly rejected the use of ‘registered voters’ ass base because
thet provision wae already under [legal] ateack{s] . «+ {t]he rest of the
charter Commission's records 1 silent.” County Appellees do not cite to the
charter connission's records to support the Comission’ s interpretation.
Wence, ‘there is no instructive “legislative” history concerning the term
“resident populations.”
2
***FOR PUBLICATION***
that “his office provided population data to the County of Hawaii
Reapportionment Commission," derived from “the federal censu:
the United States Military and from the University of Hawaii at
Hilo.” Attached ae “Exhibit 1” to the affidavit were three
charts showing (1) total population with no extractions,
(2) total population with nonresident students and nonresident
military personnel extracted, and (3) total population with
nonresident students, nonresident military personnel and their
dependents extracted. The third chart expressed a deviation of
10.8938. The difference in population bases between the first
chart, showing a total population of 148,677, and the third
chart, showing a total population minus nonresidents of 147,806,
confirms Appellants’ calculation in their opening brief that
using information from the Conmission’s computer database, 871
“nonresidents . . . should have been excluded from the population
base.” County Appellees do not raise any objection to this.
vit.
We observe further that the exclusion of identifiable
nonresidents from the population base is consistent with the
rules for determining “residency” for election purposes under
Hawaii's state election law, Hawai'i Revised Statutes (HRS)
chapter 11, HRS chapter 11 governs “all elections, primary,
special primary, general, special general, special, or county.”
HRS § 11-3 (1993) (emphasis added). Pursuant to HRS § 11-11
(1993), the “county clerk shall be responsible for voter
33
***POR PUBLICATION“
registration in the respective counties and the keeping of the
general register and precinct lists within the county.” HRS §
11-13 (1993) provides seven rules for determining a person's
‘The statute
“residency” for voter registration purpos
references students as well as military personnel as follows:
(S) A person does not gain of lose @ residence solely by
Teuson of the person's presence or absence while
smbloved in the service of the United States ox of
Shis Siete, or ubile-a-seodent of an Inetieution of
Leamning, or while tpt in an Institution or asylum,
or uhile confined ina prisons
(6) No nanber of the armed forces of the United states,
"or the member’ s dependent is
ste solely by reason of being
ote)
HRS § 11-13. The Commission, by relying on “the census-counted
population,” included persons in the population base “solely by
reason of the person's presence” in Hawai'i County “while
employed in the service” or “while a student of an institution of
rning[.]” This counting of students and military personnel
and their dependents based on mere presence alone conflicted with
the statutorily mandated process for determining who may register
to vote among the counties, The plain reading of “resident
populations” avoids the anomalous result of counting nonresidents
in the reapportionment plan when those nonresidents, pursuant to
HRS § 11-13, cannot register to vote.
vin.
A
In line with our holding, the Commission should have
excluded the said nonresidents from the redistricting population
base. However, Appellants do not argue that the use of the wrong
uu
***FOR PUBLICATION***
population base alone invalidates the Commission's plan, but,
rather, that the use of the wrong population base created an
unconstitutional deviation. ven if Appellants had argued that
the plan was void for being based on the wrong population, we
observe that the language of Charter section 3-17(f) (4) would
bring us back to the constitutional question. Section 3-17(f) (4)
states that “[d]ietricts shall have approximately equal resident
populations aa required by applicable constitutional provisions.”
(Emphases added.) Thus, assuming Appellants’ calculations,
infra, are correct, we address Appellants’ argument in points (3)
and (4) that when nonresident military personnel, their
dependents, and university students are excluded from the
population base, “deviations emerge in the (rjedistricting [pian
that exceed constitutional limits.” We do not believe that that
is the case, however.
‘The United States Supreme Court has held that the equal
protection clause of the United States Constitution requires that
electoral representation “be apportioned on a population basis.”
Reynolds v, Sims, 377 U.S. $33, 568 (1964).’ This requirement
means “that a [s]tate [must] make an honest and good faith effort
to construct districts . . . as nearly of equal population as is
practicable.” Kawamoto, 75 Haw. at 470, 868 P.2d at 1187
7 Revnolds is the “seminel decision in defining the ‘one man, one
vote’ doctrine|.1” Calderon ¥. os Anssles, 461 P.2d 49, 491 (Cal. 1971).
15
***FOR PUBLICATION***
(quoting Reynolds, 377 U.S. at 577 (emphases added)). The Court
recognized, however, that “(mathematical exactness or precision
ig hardly a workable constitutional requirement.” Reynolds, 377
U.S, at 533. See Kawamoto, 75 Haw. at 474, 868 P.2d at 1189.
Accordingly, it adopted a flexible, “case-by-case” approach to
sessing redistricting plans, providing “general considerations”
a follows:
A [a}tate may legitimately desire to maintain the intearity
‘Various political subdir
ings legislative: Svalia
Sonsiderations may underiie such sins. Tndiseriminate
Sistricting, without say regard for
yrnay be Tittle more
than an_open invitation to partiean gerrymandering. Single-
Renber districts may be the rule in one [s]tate, while
‘another. [s)tate might desire to achieve sone flexibility by
Creating multinenper or flotersal districts. whatever the
with respect to the apportionment of seats in
Sither of Both of the two houses of @ bicaneral state
Tegislature.
Reynolds, 377 U.S. at 576-79 (emphases added). See Swann v
Adams, 385 U.S. 440, 443-44 (1967) (reversing a decision
upholding a reapportionment plan where the state failed to
present, and the district court failed to articulate, “acceptable
reasons for the variations” of 308 among senate districts and 408
among house districts).
The “general principle of population equality . . .
applies to state and local elections{
Abate vy. Mundt, 403
16
‘***FOR PUBLICATION**
U.S. 182, 185 (1971). The Supr
e Court has intimated that
“slightly greater percentage deviations may be tolerable for
local government apportionment schenes” and that “particular
circumstance:
and needs of a local community as a whole may
sonetines justify departures fron strict equality.” Id. Sea ide
at 196-88 (upholding a county reapportionment plan with a total
deviation of 11.98 and districts that exactly correspond to the
county’® five towns “based on the long tradition of overlapping
functions and dual personnel” in the county government and “on
the fact that the plan. . . [did] not contain a built-in bias
tending to favor particular political interests or geographic
areas”).
In view of these considerations, . . .
tions from mathematical equality anong st
Slative districts are insufficient to make out @ prima
facie case of invidious discrimination under the Fourteenth
Amendment so a8 to require justification by the Stai
(Suprene Court] decisions have established, a
matter, thet an apportionnent plan with a maximum copulation
a Aeplen with Tar
therefote aust be justified by the Teizate
Brown v. Thomson, 462 U.S. 835, 842-43 (1983) (internal quotation
marks and citations omitted). See Kawamoto, 75 Haw. at 474, 668
P.2d at 1189.
At issue in Brown was a liyoming reapportionment plan
that allocated one of sixty-four seats in the state’s house of
representatives to a county with a deviation of 608 below the
mean. Id, at 837, 843. Nevertheless, the Supreme Court upheld
the plan on the following bases: (1) it was “undisputed” that
nv
‘***FOR PUBLICATION***
Wyoming's policy of ensuring that each county had one
representative was “free from any taint of arbitrariness or
discrimination”; (2) “population equality [was] the sole other
criterion used”; and (3) “there [was] no built-in bias tending to
favor particular political interests or geographic areas.” Id.
at 943-44, ‘The Brown majority approved of the Wyoming plan as
Yan unusually strong example of an apportionment plan the
population variations of which [were] entirely the result of the
consistent and nondiscriminatory application of a legitimate
state policy.”" Id, at 844. Thus, the “ultimate inquiry” is to
determine “whether the legislature’s plan may reasonably be said
to advance a rational state policy and, if so, whether the
population disparities among the districts that have resulted
from the pursuit of this plan exceed constitutional limits.” Id.
at 843 (internal quotation marks, brackets, and citation omitted)
(emphasis added) .
* the Brown majority noted that the appellants “Limited their
challenge to the alleged dilution of their voting power resulting fron the one
representative given co” the subject county and, therefore, the issue Mas "not
ihether 8 16) average deviation and an 898 maximum deviation’. - . (wae]
Constitutionally permissible.” 462 U.S. at 846. Hence, the Brown majority
believed it was "not required to decide whether Myoming’e nondiscriminstory
Adherence to county boundaries justifie(a} the population deviations,” dda,
Walch is the second prong of the two-part “ultinate inquiry” -~ whether the
Population disparities anong the districts exceed constitutional Limits,
However, Justice Brennan, authoring the dissenting opinion in Brown, in which
three justices joined, agreed that “Wyoming’ s long-standing policy of using
Counties as the basic unite of representation [was] @ rational one,” but
maintained that the deviations in wyoming’ plan, "even if Justified by state
policy, [were not} within the constitutionally tolerable range of sizes” ide
at 853 (Brennan, J., dissenting, joined by White, Marshall, and Blackmn,
33.4,
18
***FOR PUBLICATION***
Ix.
x,
‘The Commission's plan divides Hawai‘ County into nine
districts. Using the “resident population” base (excluding
nonresident military personnel, their dependents, and university
students) of 147,806, propounded by Appellants, the ideal mean is
16,423 (147,806 divided by nine). According to Appellants’
briefs and the record, the difference between the ideal mean and
the actual “resident population” of each district represents that
district's “deviation,” which is translated into a deviation
percentage. The difference between the district with the
resident population that exceeded the ideal mean by the greatest
percentage and the district with the resident population that
fell below the ideal mean by the greatest percentage constitutes
the redistricting plan's “total deviation.” According to
Appellants’ calculations, the resident population of District 2
was 6.20% below the ideal mean (the latter category) and the
resident population of District 8 was 4.698 above the ideal mean
(the former category), thereby resulting in a total deviation of
10.898. County Appellees do not concede that there is such a
* tn their opening brief, Appellants list the nine “Land Districts”
fas “North Hilo, South Hilo, Fonz, Kau, South Kona, North Kona, South Kohala,
North Hohala, and Hamakua.” “They calculate the differences between total
Population and total population less nonresidents as follows: “il in North
Rito, -610 in south Wilo, -20 in Puna, 6 in Kau, ~6 in South Kona, -5 in
North Kona, ~5 in South Kohala, and no change in’ North Kohala and Hamakua
Appellants also contend that “the ‘permanent residents’ population
base for stat legislative districts on the island 12 147,806 persons.
and the ‘resident populations’ base for county council districts on the island
is udsle77. . . , a difference of 871 persons.” (Emphases in original-)
(Continued...)
19
‘***FOR PUBLICATION***
deviation, maintaining that “[a]ny deviation is the result of the
artificial construct of the Appellants in determining that the
numbers they believe should have been used are the only correct
numbers, when it was clearly within the discretion of the
[Clonmission to use the numbers which it did use.” However, as
stated supra, to support their motion for partial summary
judgment, County Appellees submitted the Rosenbrock affidavit,
which arrives at the same 10.898 figure as the total deviation
when nonresident students and nonresident military and their
dependents are excluded from the total population.
B.
Using Appellants’ deviation figure for our analysis, a
total deviation of 10.898 exceeds the Supreme Court’s threshold
and, therefore, creates a prima facie case of discrimination in
violation of the equal protection clause. The Supreme Court of
Arkansas has addressed a county plan with a total deviation
similar to the deviation of the Conmission’s plan here. In Riley
%(..continued)
they argue that “e71 Ss a statistically significant number in this case
because most of these individuals reside in'a single council district.
In contrast, County Appellees point out the following:
For [D]istrict 8, the .2668 above 58 Le equivalent to about
47 persons. For’ (D]istrict 2, the difference of .€07% above
58 ig equivalent to 100 persons. Thus, even if Appellant:
population base were accepted az the only required base, the
Presumption of constitutionality could be achieved by
Shifting this small number of persons ~~ less than 200
Persons in a population of over 147,000.
"Using County Appellees’ “total” population base, the deviation
betwoen District 6, with the lowest population, and District 9, with the
highest population, 1s 8.628.
20
"FOR PUBLICATION***
w.Baxter County Election, 843 S.W.2d 831, 832-33 (Ark. 1992),
all parties stipulated that the Baxter County redistricting plan
varied among the districts by 10.1498. In assessing whether a
“rational policy to justify a variance over 108” existed, id. at
833, the Arkansas Supreme Court acknowledged the “systematic
approach” taken by the election commission. The commission had
divided “the total population” of Baxter County by eleven, the
number of districts to be apportioned.
“The districts with population already closest to that
number were kept the same, and the others were slightly modified,
taking geography into account, to reach parity.” Id. At the
hearing before the trial court, a commission member testified
that “the overriding principle” followed by the commission in
redistricting “was equal representation.” Id. The Arkansas
Supreme Court concluded that the conmission’s “systematic
approach . . . reveal{ed) a rational policy of redistricting in
Baxter County” and that “the 10.149 variance [was] only slightly
over the acceptable 108 variation.” Id. Thus, it was held that
the trial court did not err in finding that the commission
overcame the prima facie case of discrimination, Id.
Similarly here, the 10.89% total deviation of the
Conmission’s plan is “only slightly over the acceptable 10%
variation.” Id, It is true, as Appellants posit, that the
Commission did not address the deviation question because it was
working from the “total” as opposed to “resident” population
21
***POR PUBLICATION*
base, which presented only an 8.624 deviation. However, we
cannot say that no rational basis underlay the 10.89% deviation
because, akin to the approach exemplified by the commission
member's testimony in Riley, the Commission in the instant case,
by using “total” population, evidenced an intent to achieve
inclusiveness and equal representation. Cf, Calderon v. Los
Angeles, 461 P.2d 489, 493 (Cal. 1971) ("adherence to a
population standard, rather than one based on registered voters,
is more likely to guarantee that those who cannot or do not cast
a ballot may still have some voice in government.” (Emphasis
added.))-
For at the second meeting of the Commission, Hawai'i
County Councilmember Julie Jacobson testified in favor of “using
the population as the basis for the districting,” stating that,
each human being has needs for the governsent serves [sic]
and it doesn’t matter if you're one day old, if you're 99
years old, if you vote or don't vote, or any other of those
Yariables . . each pereon needs tobe considered and T
think especialy with the complexity of infrastructure
issues, that we deal with, that’s why it’s importent.
Commissioner Mark Van Pernis then made a motion to “include all
people”: “[A]11 the people that the census counted is included
because, whether they vote or not, or whether they’re young or
old, or military or not, they all use county services, they all
pay taxes in some form or shape and they all need
representations.” The motion was put to a vote and carried,
evidencing that the Commission was motivated by inclusiveness as
‘opposed to a discriminatory purpose.
22
“POR PUBLICATION***
Importantly, the Charter required the Commission to
consider three additional factors in redistricting. In addition
to the “approximately equal resident populations” requirement at
issue here, Charter section 3-17(f) required the Commission to
consider the following criteria:
(2) Mo district shall be dram to unduly favor or penalize
2 person oF political factions
(2) Insofar as possible, districts should be contiguous
‘and compact)
(3) District Lines shall, where possible, follow permanent
and easily recognizable features; « . «
These considerations governed the Conmission’s determination.
The statements supra at the second meeting of the Commission
evidenced the Commission’s commitment against favoring or
penalizing a person or political faction in consonance with
charter Section 3-17(f) (1).
Ultimately, the deviation stenming from a “pure
population” standard resulted from the Commission's commitment to
fan inclusive model rather a discriminatory one. Appellants do
not contend that the Commission failed to consider other
redistricting criteria under the Charter or that such criteria
would not support slightly greater deviation than the 108 prima
facie threshold. It should be noted that related objections were
apparently waived when Appellants stipulated to withdraw the
claims that the Commission failed to use a “rational or objective
methodology” and “wrongfully submerged communities of interest
into larger districts,” see supra note 3, thereby abandoning any
23
“FOR PUBLICATION***
claim that the Commission incorrectly applied the other three
criteria in Charter section 3-17(£).
Finally, we observe that Appellants do not argue, nor
point to evidence in the record, that the Commission did not
“make an honest and good faith effort to construct districts
+ + of equal population as is practicable[,]” Reynolds, 377
U.S. at 577, that the plan has “‘a built-in bias tending to favor
particular political interests or geographic areas(,]'” Brown,
462 U.S. at 844 (quoting Abate, 403 U.S. at 187), or that the
Commission's redistricting process was “taint(ed]” with
“arbitrariness,” id. at 843. What remains is Appellants’
conclusory statement that the “Commission’s records do not
reflect any evidence that justifies the [Clommission’s action to
adopt a [redistricting [p]lan that has deviations that exceed
the ideal mean by more than 108.” Therefore, on the foregoing
bases and under the specific circumstances of this case, we held
that, ultimately, the court did not err in concluding that “there
was no unconstitutional deviation in the population count in the
county council districts as set forth in the 2001 council
redistricting plan adopted by the . . . Commission.”
x.
Based on the foregoing, the Conmission’s erroneous
inclusion of nonresident students and military personnel and
their dependents in the population base for reapportionnent of
Hawai'i County council districts did not ultimately result in an
24
FOR PUBLICATION***
unconstitutional deviation under its reapportionment plan.
Although we do not agree with the court that the Commission’s
population base was correct, we affirm the court's decision
upholding the Commission’s plan because the plan complies with
the mandate of Charter section 3-17(f) (4) that the districts be
comprised of “approximately equal resident populations as
required by applicable constitutional provisions.” (Emphi
added.) See Hawaii Provider's Network, Inc, v. AIG Hawaii Ins.
Cox, 105 Hawai's 362, 368 n.14, 98 P.3d 233, 239 n.14 (2004)
(llhere the decision below is correct it must be affirmed by
the appellate court though the lower tribunal gave the wrong
reason for its action.” (Quoting Agsalud vs Lee, 66 Haw. 425,
430, 664 P.2d 734, 738 (1963).))7 Boe vs Havas Relation:
Bd, 87 Hawai's 191, 197, 953 P.24 569, 575 (1998) ("Where the
circuit court’s decision is correct, its conclusion will not be
Gisturbed on the ground that it gave the wrong reason for its
ruling.” (Quotation marks and citation omitted.)). Accordingly,
the court's January 24, 2003 final judgment is affirmed.
on the briefs: ‘ 0
Michael J. Nateukawa for
for plaintiffs-appellants. borne C
fetricia K. o'Toole,
Beputy Corporation Counsed, Coot dutty dre
County of aval for
Getendantsrappeiiees.
25
|
e6a8c0ec-e294-4ea1-a904-0cfd7a63bd91 | County of Hawaii v. Ala Loop Homeowners | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 27162
IN THE SUPREME COURT OF THE STATE OF HAWAT'L. =
aa
COUNTY OF HAWAI'I, a municipal corporation of the state of @
Hawai'i, Plaintiff-Appellee, 3
al
ALA LOOP HOMEOWNERS, an unincorporated association,
Defendant-Appellee,
and,
WAT'OLA WATERS OF LIFE CHARTER SCHOOL, a public school organized
under the laws of the State of Hawai‘l, Defendant-Appellant,
and
JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10, DOE
CORPORATIONS 1-10, and DOE ENTITIES 1-10, Defendants-Appellees.
ALA LOOP COMMUNITY ASSOCIATION, an unincorporated non-profit
association, Third-Party Plaintiff,
LAND USE COMMISSION, STATE OF HAWAI'I, Third-Party Defendant.
APPEAL FROM THE THIRD CIRCUIT COURT
(CV. NO, 03-1-0308)
ORDER DISMISSING APPEAL
(py: Nakayama, J. for the court!)
Upon review of the record, it appears that the March 4,
2005 judgment, the Honorable Greg K. Nakamura presiding, which
purports to be the final judgment on the cross-claims for
declaratory and injunctive relief by Ala Loop Homeowners against
Sconsidered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
a3.
*** NOT FOR PUBLICATION
Wai'ola Waters of Life Charter School, does not enter judgment in
favor of Ala Loop Homeowners and against Wai'ola Waters of Life
Charter School on the eross-claims and does not identify the
cross-claims as the claims for which the judgment is entered, as
required by Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i
115, 119-120, 869 P.24 1334, 1339-39 (1994) (In @ multiple-clain,
multiple-party circuit court case, a judgment that purports to be
the final judgment is not appealable unless the judgment enters
judgnent in favor of and against the appropriate parties and
identifies the claims for which the judgment is entered.). Thus,
this appeal is premature and we lack jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is disnissed for
Jack of appellate jurisdiction.
DATED: Honolulu, Hawai‘, July 29, 2005.
FOR THE COURT:
Peseta Cutter are-/
Associate Justice
|
54448701-1518-407c-ba21-c0c824d0e51e | Hickam Federal Credit Union v. Hifo | hawaii | Hawaii Supreme Court |
wae
vs. a
THE HONORABLE EDEN £. HIFO, Judge of the Circuit Court of
the First Circuit of the State of Hawai'i; DANIEL T. KEOMALU;
GERARD AUYONG; STEPHEN KWOCK; CUTTER PONTIAC, BUICK,
GNC OF WAIPAHU, INC.; and CJW MOTORS, INC., Respondents
ORIGINAL PROCEEDING
(CIV. No, 04-1-0732)
R_DENY IN: KAM PEI NION' S
K us
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of Petitioner Hickam Federal Credit
Union's petition for a writ of mandamus directed to the Honorable
Judge Eden E. Hifo, the papers in support and opposition, and the
records and files herein, it appears that: (1) Petitioner is
seeking a writ of mandamus reversing or vacating the order
granting Cutter Pontiac, Buick, GMC of Waipahu, Inc. and CJW
Motors, Inc.’s motion to disqualify Carlsmith Ball, LLP as
counsel for Hickam Federal Credit Union's Third Party Complaint
against Cutter Pontiac, Buick, GMC of Waipahu, Inc., CJW Motors,
Inc. filed in Keomalu v, Hickam Faderal Credit Union, Civil
No. 041-0732, presently pending in the Circuit Court of the
‘Third Circuit; and (2) Petitioner fails to demonstrate that it is
entitled to a writ of mandamus. Therefore,
aawd
IT IS HEREBY ORDERED that the petition for a writ of
mandamus directed to the Honorable Judge Eden E. Hifo is denied.
DATED: Honolulu, Hawai'i, June 27, 2005.
Duane R. Miyashiro and
Elyze J. McDonald for
petitioner on the writ oI
R. Steven Geshell
and William Fenton LtrGlleccren
Sink for respondent
Daniel T. Keomalu
in answer Prcater OO eae ant
Lisa Woods Munger,
and Robert Ke Fricke
for respondents Cutter
Pontiac, Buick, GNC Cnn. « Rudin b+
of Waipahi, inc.y and
Cow Motors, inc.
|
75fe10e6-36b2-468b-8528-d2eec7790db0 | Eisermann v. State | hawaii | Hawaii Supreme Court |
STAT OF HAWAr':, Reszondent-Appeliee.
y
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(8.P.P. NO. 04-1-0004)
ING “NOTICE 1
(By; Moon, C.J., for the court")
Petitioner-appellant Wolfgang Eisermann's “notice of
certiorari," filed May 31, 2005, which this court deems to be an
application for a writ of certiorari, is denied,
DATED: Honolulu, Hawai'i, June 9, 2005
Wolfgang Bisermann, FOR THE COURT:
petitioner-appellant,
appearing pro se,
on the application 5
fet Justice
ey
BS
“ay
"
Considered by: Moon, C.J., Levineon, Nakayama, Acoba, and Duffy, 33.
aans
|
f7f2569d-34c2-47a3-8af6-cec93ee3966c | State v. Pegouskie | hawaii | Hawaii Supreme Court | No. 25518
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
YONG OK PEGOUSKIE, Petitioner/Defendant-Appellant
a
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD CR. NOS, 02009134, 02009125)
APPLICATION FOR WRIT OF C1
‘Acoba, J., for the court’)
The Application for Writ of Certiorari filed on
June 17, 2005 by Petitioner/Defendant-Appellant Yong Ok Pegouskie
is hereby denied.
paTeD: Honolulu, Hawai'i, June 27, 2005.
FOR THE COURT: 3
Dennis W. Jung, on
the writ for petitioner/
cefendant-appellant.
| considered by: Moon, C.J., Levinson, Nakayama, Acoba, and
putty, 39
oat
|
58870f9e-defa-4c9f-9562-d77a10e66e0d | Partington v. McKenna | hawaii | Hawaii Supreme Court | LAWrInesm
No. 27343 = s
IN THE SUPREME COURT OF THE STATE OF HAWAI'I: 2
=
EARLE A, PARTINGTON, Petitioner 4
oN
SABRINA S. MCKENNA, Circuit Judge of the First Circuit,
STEVEN M. ROGERS, SUSII HEARST and RETIREMENT RESOURCES,
INC., fka PRECISION PRESS, MANECK MINOO, GASPARIAN &
MINOO, LTD., dba PRECISION PRESS, fka HUFFMAN &
MINOO, LTD., and PALMER GRAPHICS & PRINTING,
Respondents
ORIGINAL PROCEEDING
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Earle A. Partington’s
petition for a writ of mandamus, the papers in support, and the
records and files herein, it appears: (1) Petitioner seeks a
writ of mandamus directing the respondent judge to vacate an
order entered in Rogers vs Minoo, 5.P, No, 01-1-0487, presently
pending in the Circuit Court of the First Circuits and
(2) Petitioner fails to demonstrate that he is entitled to @ writ
of mandanus at this time. therefore,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus {s denied without prejudice to Petitioner seeking relief
or setting forth his position in the pending circuit court
proceeding.
DATED: Honolulu, Hawai'i, June 21, 2005.
Earle A. Partington,
petitioner pro se,
on the writ
Masti Ci ray de
woot
Sonne Dados Bry
|
33445cb1-1dd4-433b-97f4-01971694dc2f | In re Doe, born 08/17/2001 | hawaii | Hawaii Supreme Court |
IN THE INTEREST OF JANE DOE
Born on August 17, 2002
(no. 27069; FC-S NO. '02-08610)
IN THE INTEREST OF JANE DOE
Born on November 13, 2003
(wo. 27070; FC~S NO. 03-09403)
APPEALS FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FO-S NOS. 02-08610 & 03-09403)
ORDER DISMISSING APPEALS
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon review of the record, it appears that the family
court's orders denying appellants’ motions for extensions of tine
to file motions for reconsideration pursuant to HRS § 571-54 are
post-decree orders appealable as final orders pursuant to HRS
$5 641-1(a) and 71-54. However, the twenty-day period for
filing the HRS § 571-54 motion for reconsideration cannot be
disregarded by the appellate court in the exercise of judicial
discretion. See Inxe Jane Doe, 105 Hawai'i $05, $08,100 P.3d
75, 78 (2004). Thus, the relief sought on appeal cannot be
granted by the appellate court. Therefore,
aad
‘***NOT FOR PUBLICATION®
IT IS HEREBY ORDERED that No. 27069 and No. 27070 are
dismissed.
DATED: Honolulu, Hawai'i, July 8, 2005.
|
fa7ed6a5-6eff-400b-9c3f-9e8c1f9897ea | State v. Domingo | hawaii | Hawaii Supreme Court | ‘+## NOT FOR PUBLICATION *#*
no. 26458
1H THE SUPREME COURT OF THE STATE OF HAWAT'IS
SATE OF HAWAL'T, Plaineiff-Appeliee, =
JOSBeH DOMINGO, Defendant-Appel lant. :
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(Cr. No. 02-1-1834)
or
(gy: Moon, C.J., Levinson, and Nakayama, JJ., with Duffy, J~»
concurring separately and dissenting, in which Acoba, J., joins)
The defendant-appellant Joseph Domingo appeals from the
judgment of the circuit court of the first circuit, the Honorable
Sandra A. Simms presiding, convicting him of and sentencing him
for five counts of sexual assault in the third degree, in
violation of HRS § 707-732(1) (b) (1993 & Supp. 2001). On appeal,
Domingo argues (1) that the circuit court erred in refusing to
instruct the jury pursuant to his proposed supplemental specific
unanimity instruction, in violation of State v. Arceo, @4 Hawai'i
1, 928 P.2d 843 (1996), (2) that the circuit court’s responses to
jury communications were impermissible pursuant to this court’s
decision in State v. Faiardo, 67 Haw. 593, 699 P.2d 20 (1985),
and (3) that the circuit court erred in imposing concurrent ten-
year extended terms of imprisonment in violation of his
constitutional right to a jury trial under the sixth amendment to
ction 14 of the
the United States Constitution and article T,
Hawai'i Constitution (1978).
aa
‘*## NOT FOR PUBLICATION ***
Upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we affirm the
judgment and sentence of the circuit court and hold as follows.
(1) The circuit court complied with this court’s
decision in Arceo, 84 Hawai'i 1, 928 P.2d 843, by giving the jury
ong specific unanimity instruction, stating, inter alia, “that
all twelve jurors must unanimously agree that the same act has
been proven beyond a reasonable doubt.” Inasmuch as Arcee does
not preclude a single specific unanimity instruction expressly
applicable to all relevant counts, the circuit court did not err
in refusing to give Domingo’s proposed supplemental specific
unanimity instructions tailored to each count.
(2) The circuit court’s responses to the jury's
communications were not erroneous, nor did they mirror the
instruction allowed in Allen v, United States, 164 U.S. 492
(1896), but rejected as improper by this court in Fajardo, 67
Haw. 593, 699 P.2d 20, and State v. Villeza, 72 Haw. 327, 334-35,
817 P.2d 1054, 1058 (1991). The circuit court’s instruction to
the jury to continue deliberating by explaining that “(t]he law
requires a unanimous decision in criminal cases. Please continue
your deliberations with a view to reaching an agreement if you
can do so without violating your individual judgment” did not
have the effect of “blasting” a verdict out of a deadlocked jury.
Faiarde, 67 Haw. at 597, 699 P.2d at 22 (citation omitted) .
“[W)hen read and considered as a whole, the instructions given”
were not “prejudicially insufficient, erroneous, inconsistent, or
‘*## NOT FOR PUBLICATION *#*
misleading,” State v. Kinnane, 79 Hawai'i 46, 49, 897 P.2d 973,
976 (1995), and the circuit court did not err in instructing the
jury. See also State v. Hoey, 77 Hawai'i 17, 38, 881 P.2d 504,
525 (1994).
(3) Domingo’s arguments against his extended terms of
imprisonment have been foreclosed by this court’s decision in
State v, Rivera, 106 Hawai'i 146, 150, 102 P.3d 1044, 1048
(2004), which held that Hawai'i’s extended term sentencing scheme
is not incompatible with the United States Supreme Court’s
decision in Blakely v, Washington, 124 S.Ct. 2531 (2004).
See also State v. Kaua, 102 Hawai'i 1, 72 P.3d 473 (2003); State
ws Hauge, 103 Hawai'i 38, 79 P.3d 131 (2003). Therefore,
IP 1S HEREBY ORDERED that the judgment and sentence
from which this appeal is taken are hereby affirmed.
DATED: Honolulu, Hawai"i, June 14, 2005.
on the briefs: Gor
Stephen K. Tsushima,
deputy prosecuting attorney, ee
for the plaintiffveppeliee
Seate of” Hovat't
Pesta C1. orcany anes
Todd Eddins,
for the defendant-appellant
Joseph Domingo
|
824d9728-945d-4c7d-b191-c9a42c88072d | State v. Moses | hawaii | Hawaii Supreme Court | No. 26529
IN THE SUPREME COURT OF THE STATE OF HAWAI'I 8
STATE OF HAWAI'I, Petitioner/Plaintiff-Appelle
vs.
PETER MOSES, Respondent/Defendant~Appellant ="
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 98-2014)
(By: Duffy, J. for the court!)
Petitioner/Plaintiff-Appellee’s application for writ of
certiorari filed on May 31, 2005, is hereby denied.
DATED: Honolulu, Hawai'i, June 9, 2005.
FOR THE COUR!
Vos Daath
Associate Justice
James M. Anderson,
Deputy Prosecuting Attorney
for petitioner/plaintiff-
appellee on the writ
cynthia A, Kagiwada
for respondent /defendant-
appellant in response
* considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
qa
|
c1a49a7d-1cb4-4aee-bf56-a656945f5730 | Ricasa v. Hilton Hotels Corporation | hawaii | Hawaii Supreme Court | LAW UBRARY
*** NOTFOR PUBLICATION ***
No. 25968
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
DOMINGO P. RICASA, Plaintiff-Appellant, 2° s =
vs. RF
=
HILTON HOTELS CORPORATION, 2 Delaware = 8
corporation, and HILTON HAWAIIAN VILLAGE, LLCZP =
‘2 Hawai'i Limited Liability Corporation, 3
Defendant s-Appellees,
and
JOHN AND JANE DOES 1-10; DOB PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; and OTHER DOE ENTITIES 1-10,
Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 01-1-2639)
SUMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
Plaintiff-appellant Domingo P. Ricasa appeals from the
first circuit court's June 16, 2003 final judgment in favor of
defendants-appellees Hilton Hotels Corporation and Hilton
Hawaiian Village, LLC (hereinafter collectively, Hilton].?
Ricasa’s single point of error is that the circuit court erred in
granting Hilton's second motion for summary judgment.
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 circuit court erred in granting summary judgment in favor of
‘The Honorable Dexter D. Del Rosario presided over this matter:
*** NOTFOR PUBLICATION ***
Hilton. Specifically, we hold that there are genuine issues of
material fact as to Ricasa’s claims for breach of implied
contract and retaliation. In Gonsalves v, Nissan Motor Com, in
Hawaii, Ltd, 100 Hawai'i 149, $8 P.34 1196 (2002), we dealt with
the issue of disclaimers and implied.contracts and held that a
disclaimer is valid if it is: “(1) . . . clear, conspicuous, and
understandable; (2) [dees not] contradict language in the
Jemplovee| manual; [and] (3) [does not) contradict subsequent
oral or written statements by the employer.” (emphasis added.)
100 Hawai" at 167-68, $8 P.3d at 1214-15. In this case, there
appears to be a contradiction between the disclaimer affirming
the ‘at will” status of Ricasa’s employment, and the Hilton
“Harassment-Free Workplace Policy” which provided that “[alny
employee who reports unlawful harassment or cooperates in the
investigation of a complaint will be protected from retaliatory
action” and that “[a]1l reports that you make will be fully
investigated.” The record shows that Ricasa reported alleged
unlawful harassment, and that there are genuine issues of
material fact as to whether Hilton fully investigated Ricasa’s
report, and whether Hilton’s termination of Ricasa was
retaliatory action. Sunmary judgment against Ricasa on this
record was thus inappropriate.
IT IS HEREBY ORDERED that the circuit court’s June 16,
2003 final judgment is vacated and this case is remanded to the
*** NOT FOR PUBLICATION ***
first circuit court for further proceedings consistent with this
order.
DATED: Honolulu, Hawai'i,
on the briefs:
Shawn A. Luiz
for plaintiff-appellant
Domingo P. Ricasa
Robert S$. Katz
and Paul M. Saito
for defendants-appellees
Hilton Hotels Corporation and
Hilton Hawaiian Village, LLC
guly 25, 2005.
|
86f43b95-9be1-450c-9ff2-5b792e3ad353 | Kahaikupuna v. State of Hawai'i, County of Maui. Concurring and Dissenting Opinion by J. Levinson [pdf]. S.Ct. Order of Correction, filed 01/05/2006 [pdf]. | hawaii | Hawaii Supreme Court | ‘+#*P0R PUBLICATION*#*
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000:
DANIEL LEALOHA KAHATKUPUNA and
FREDERICK PONCE, Plaintiffs-Appellants
STATE OF HAWAI'I, COUNTY OF MAUI,
Defendants-Appellees
g
and .
JOHN DOES 1-10 and DOE ENTITIES 1-10, Defendants
No. 26850
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO, 04-1-0227)
DECEMBER 19, 2005
MOON, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ.;
WITH LEVINSON, J., CONCURRING SEPARATELY AND DISSENTING
OPINION OF THE COURT BY ACOBA, J.
Plaintiffs-Appellants Daniel Lealoha Kahaikupuna and
Frederick Ponce (collectively, Plaintiffs] appeal from the
September 22, 2004 judgment of the circuit court of the second
circuit! (the court) in favor of Defendants-Appellees the State
of Havai't (the State), and the County of Maui (the County)
[collectively, Defendants]. Plaintiffs also challenge the
court's August 31, 2004 findings of fact (findings), conclusions
of law (conclusions) and order granting Defendants’ motion to
1 The Honorable Joel £, August presided
ant
‘+##F0R PUBLICATION*#*
a
dismiss the complaint. Because we hold that Plaintiffs’
challenges to Hawai'i Revised Statutes (HRS) § 711-1109(1) (Supp.
2004) and Chapter 9.08.010 of the Maui County Code (MCC)? are not
proper subjects for a declaratory judgment, we vacate the
September 22, 2004 judgment and the aforesaid findings,
conclusions, and oxder and remand the case to the court to enter
summary judgment in favor of the County on its motion and in
favor of the State on its joinder to the County's motion and to
enter judgment thereon on the grounds set forth herein.
L
on May 28, 2004, Plaintiffs filed a complaint under the
provisions of HRS § 632-1 (1993),? asking the court to enter a
declaratory judgment to the effect that cockfighting is a native
Hawaiian customary right protected pursuant to article XII,
section 7 of the State Constitution and HRS § 7-1 (1993).
2 the texts of these provisions are produced intra.
4 Revised Statutes (HRS) § 632-1 1s reproduced Antea
+ Article x21, section 7 of the Hawai'l Constitution states that:
‘The State reaffirms and shall protect ali rights
costonarily and traditionally exercised for subsistent
Geltural and religious purposes and possessed by ahupus
Tenants who are descendants of native Hawaiians Who
[thabited che Hawaiian sands prior to 1778, subject to the
Fight of the state to regulate such rights.
* uns § 7-1 states nat:
Where the landlords have obtained, or may hereafter
obtain silodial titles to their lands, the people on each
Of their lands shall not be deprived of the rignt to take
Trewood, housetinber, aho cord, thateh, or ki leaf, fron
the land on which they live, for their own private use, but
they shal! not have a right to take such articles to sell
for profit. The people shall have 2 right to drinking
rand the right of way. The springs of
(continued...)
‘**4FOR PUBLICATION*#*
Plaintiffs named the State and the County as parties in the suit.
Cockfighting is prohibited under State‘ and County’ laws.
Plaintiffs have not been charged with a criminal offense.
In the complaint, Plaintiffs represented that they are
descendants of native Hawaiians who inhabited the Hawaiian
"(ss scontinued)
Water, running water, and roads shall be free to all, on all
Lands granted fee simple; provided that this shall not be
applicable to wells and watercourses, which individuals have
made for their own use.
+ as g 711-1208 (1993 & Supp. 2004) of the Hawai'i Penal Code
provides in relevant part as follows
Ceveity to animals, (1) A person comits the offen
of crueity to animals if the person intentionally,
knowingly, oF recklessly:
‘Ia}’ “Overdrives, overloads, tortures, torments, cruet2i
beats or starves eny aninal, oF causes oF proc
overdriving, overloading, torture, torment, cruel
beating of starving of any aninal, or deprives & pet
faninal of necessary sustenance of causes. such
deprivation:
fp) Mutilstee, poisons, or kills without need any animal
Other than insects, vermin, oF other pests
[c) keeps, uses, or in any way 18 connected with or
interested in the management of, oF receives
oney for the adnission of any Gerson toy any
Place kept or used for the purpose of fightang
br baiting any Bull, bear, dog, cock, oF other
Shinal, and every person who encourages, aids,
Gf assists therelns oF who permits of suffers
ny place to be so kept oF uses:
ie} ” Assists another in the comission of any act of
‘siuelty to any animal.
he
id) Cruetty to animals is a misdeneanor
(Emphasis added.)
chapter 9.08.010 of the Mavi County Code (MCC) provides that
Leson within conduct or
saintsinn
shall be guilty of a niscene:
Ted upon conviction shel be punished by a fine not to
exceed five hundred dollars and costs, or be imprisoned
lineil auch fine and costs have been discharged by operation
of law
(emphasis added.)
‘+#*P0R PUBLICATION***
Islands prior to 1778. They further asserted that cockfighting
is a “traditional native Hawaiian cultural practice.” Plaintiffs
requested “entry of a [j]udgment declaring, ‘determining, and
resolving Plaintiffs’ legal status, rights and privileges” and
“entry of judgment declaring that Plaintiffs have the right to
practice raising and fighting roosters as part of their culture.”
on July 16, 2004, the County filed a motion to dismiss
Plaintiffs’ complaint for lack of jurisdiction. The County
argued that Plaintiffs failed to “allege an ‘actual controversy’”
because Plaintiffs failed to plead that they have either been
charged with or convicted of violations pursuant to State or
county laws, and, therefore, the court was “depriv(ed]” of
subject matter jurisdiction. The County also argued that “(elven
Af the [cJourt had jurisdiction, Plaintiffs’ [cJomplaint fails to
state a claim upon which relief may be granted.”
on July 22, 2004, the State filed a substantive joinder
in the County's Hawai'i Rules of Civil Procedure (HRCP) Rule
12(b) (6) motion to dismiss (joinder). The State asked the court
to treat the County’s motion to dismiss as one for summary
judgment pursuant to HRCP Rules 12(c) and 56 (2004)* because the
County's motion to dismiss included matters outside of the
pleadings.
+ wrce Rate 56 states in relevant part as follons:
(b) For defending party. A part;
clain, counterclaim, oF cross-claim is
Geclatatory jusgment is sought may nov
Supporting affidavits Zor s summery Susmment in the party's
favor as to all er any part thei
‘
+#*POR PUBLICATION*#*
on August 19, 2004, Plaintiffs filed a memorandum in
opposition to both the County’s motion to dismiss and the State's
Joinder, arguing that (1) by virtue of HRS §° 632-1, infra, the
court has jurisdiction to grant declaratory relief for
(a) “[c]ontroversies involving the interpretation of .
statutes, municipal ordinances, and other governmental
regulations . . . ,” (b) when “antagonistic claims are present
between the parties which indicate imminent and inevitable
Litigation,” or (c) “where the court is satisfied that a party
asserts a legal{] relation, status, right, or privilege . . . and
that there is a challenge . . . by an adversary party who also
has or asserts a concrete interest therein, and the court is
satisfied also that a declaratory judgment will serve to
terminate the uncertainty or controversy giving rise to the
Proceeding[,]” (2) Plaintiffs’ action is ripe, (3) Plaintiffs
have standing, and (4) the complaint does state a claim. Ina
declaration, Plaintiff Kahaikupuna stated that although he has
never been charged with or convicted of a crime, he faces the
“real, immediate and adverse threat of criminal prosecution. . .
for practicing the traditional Hawaiian custom of
cockfighting!,]” and that the threat is a “serious threat which
impacts my life as well as the lives of the members of my
family."
On August 31, 2004, the court issued its findings,
conclusions, and order granting Defendants’ motion to disniss.
‘The court determined that as 2 matter of law (1) it had
5
*++FOR PUBLICATION***
ee
jurisdiction over the subject matter of the action and Plaintiffs
had standing, (2) the claims were ripe in that competing
interests were likely to lead to Litigation if Plaintiffs should
attempt to exercise their claimed rights, (3) the motion to
dismiss should be decided under the provisions of Rule §6 of the
FRCP, rather than under Rule 12 because there were matters
presented to the court that were outside the pleadings, and (4)
summary judgment should be granted against Plaintiffs on the
merits.*
+ tm an erudite coview of the case, the court ruled:
7. ven if one asgunes that cockfighting was a
coltural practice under the Kingdom of Hawai'i, the state
fos chosen to legislatively regulate and ban such activity
Yn constitutional chellenges to legislation in Hawes'i, *(1)
Jogisiative enactments are presumptively constitutional; (2)
a°fafey challenging {a statutory scheme) has the burden of
Showing unconsttutsonality beyond a reasonable doubt; and
(2) "the constitutional defect ust be clear, manifest (,] and
Gaistakstle,”. Peay y. Judicial Selection Comm'n, 75 ikaw.)
335, 340, 861 P.28 123,727 (1993) (anternal quotations
oaiteed) } Sitegal £4
Saye 14 (hawel Tei, 151, €¢0 e.26 367, 37: (1992) (quoting
Biath vs Cavetans, 713. (Waw.} 536, 542, "836 P.26 1066, 1069
(3827)
81 Although cockfighting may have been popular with
certain native residents during the monarchy, the (elourt
Eekes judicial notice that under the laws of the Kingdon of
Newall such ectivity wae considered “cruelty to animals”
Gnd was iilegel. The [elowrt concludes that this illegal
SctLvity under the laws of the Kingdom of Hawai'l does not
translate into an established custom that was culturally
accepted and generally practiced as of 1892, or was a
fecognizes right of the Kingdon’ s subjects.
9. Because Plaintiffs do not argue chat cockfighting
customarily and traditionally served a religious porpose
Ghong native Hawaiians, the only remaining argument for
Constitutional protection is that cocktighting is «
Customary and treditional right encompassed in Section 7-1
Se the {Hts}, Section 7-1 protects custonary and
traditional native Hawaiian practices that relate to
Subsistence. Subsistence rights have traditionally
Eoncerned water, access, and gathering rights. The [clourt
Concludes that cockfighting, legally regarded as cruelty to
Stimalss hes absolutely no Connection with subsistence
Fights.
Jo. Plaintstfe claim that ra!
ing roosters is a
(Gontinu
‘***FOR PUBLICATION*#*
Plaintiffs filed 2 notice of appeal on September 27,
2004.
qn.
On appeal, Plaintiffs contend that the court erred
in ruling that (1) raising and fighting roosters was not a
customary traditional practice of Native Hawaiians, despite
substantial and uncontested evidence in the record to the
contrary, or at least there was a genuine issue of fact as to the
existence of such a practice, (2) pursuant to chapter 24 of the
Kingdom of Hawai'i Penal Code enacted in 1884, raising and
fighting roosters was not a right customarily and traditionally
exercised for subsistence or cultural purposes by native
Hawaiians, and (3) such a right is not protected by article xIz,
section 7 of the Hawai'i Constitution. Plaintiffs state that
they make “no contention that any of the existing state laws
(continues)
Practice that ie part of their native Hawaiian culture, but
Enis claim does not raise an iseve in controversy. Nola
prevents Elaintifts trom raison roosters. and Plaintifts
have not alieaed that the County of Haul, or the State of
TT, Plaintiffs (sic) claim presents no genuine issues
to any material fact. Because tne’ (c]ourt concludes that
cockfighting was i1legal under the laws of the Kingdom of
Hawai's, and such activity is not a constitutionally oF
statutorily protected right customarily and traditionally
exercised for subsistence or cultural purposes by native
Hawsisene, Defendants are entitled to Sudgment a2 a matter
12. In the absence of any genuine issues of material
fact, the [ejourt also concludes that Plaintiffs have failed
te overcome the presumption thst state and county laws that
prohibit cockfighting are constitutional, oF that the
Constitutional defect in such laws is clear, manifest, and
nmistakebie
(Exphasis added.)
‘***FOR PUBLICATION*#*
regarding cockfighting were unconstitutional” and they “do not
ask for declaration that any state or county laws were
unconstitutional.”
In response, the State argues tht (1) summary judgment
was proper because cockfighting is not a constitutionally or
statutorily protected Native Hawaiian customary right,
(2) summary judgment was correct because Plaintiffs have not set
forth specific facts to show that there are any genuine issues of
material fact, (3) the court properly ruled that the State
exercised its constitutional right to regulate Native Hawaiian
customary practices, and (4) declaratory judgment is improper
because the issue of whether cockfighting is a Native Hawaiian
customary right is not ripe for review.
The County agrees with the State’s first and second
arguments and also contends that (1) chapter 24 of the Hawaiian
Kingdom’ s penal code outlawed more than merely keeping or
managing a place used for cockfighting, (2) neither the County
nor the State prohibits the raising of roosters, (3) there are no
disputed material facts, and (4) Plaintiffs have failed to
overcome the presumption that the County's anti-cockfighting
ordinances are valid.
In requesting a declaratory judgment as to whether
cockfighting is a protected native Hawaiian right, Plaintiffs
urge this court to “determine their rights prior to having to
suffer actual criminal prosecution, which is threatened and
imminent.” Because we believe Plaintiffs’ request is not
8
'+*E0R PUBLICATION*#*
appropriate for a declaratory judgment action, we affirm summary
judgment on behalf of the State and County, but on different
grounds. See Waianae Model Neighborhood Area Ass'n v. City &
County of Honolulu, 55 Haw. 40, 43, 514 P.2d 861, 864 (1973);
McCarthy v. Yempuke, 5 Haw. App. 45, 52, 678 P.2d 11, 16 (1984)
(holding that an appellate court may affirm a grant of summary
judgnent on any ground appearing in the record, even if the
circuit court did not rely on it).
ui.
It is evident, as mentioned above in Plaintiffs’
complaint, that they sought a declaratory judgment because of a
perceived threat of criminal prosecution. The complaint was
filed under the provisions of the Declaratory Judgments Act, HRS
§ 632-1, which states:
actual controversy, courts of record,
within the scope of thelr respective Jurisdiction
have power to make binding adjudications of right, whether
Of not consequential relief 18, oF at the time could b
Claimed, and no action or proceeding shall be open to
Sbjectson on the ground that a Judgment or order me
declaratory of right is prayed for provided that.
Geclarstory relief may not be obtained in any district
court, a in any controversy with respect to taxes, oF in
any case where a divorce or annulment of marriage is sought.
Controversies tnvoiving the interpretation of deeds, wills,
other instruments of writing, statutes, municipal
ordinances, and other governmental regulations, may be so
Setermined, and this enumeration does not exclude other,
Instances of actual antagonistic assertion and denial of
right.
Relief by declaratory judgment may be granted in civil
ay exists between contending
sitistied that antagonistic
nt between the parties involved which
{naieate inminent end ineviteble Litigation, oF where in any
‘such cage the court is satisfies that « party asserts a
egal relation, status, right, or privilege li waich the
party has s concrete interest and that there is 3 challenge
br denial of the asserted relation, status, right, ot
privilege by an adversary party who also has or asserts a
Eoncrete interest therein, and the court is satisfied also
ay
‘+*4FOR PUBLICATION***
thats declaratory judgment will serve to termina
Gncertainty or controversy givin 0 the proceeding.
however, a statute. prov: special. form of renedy
specific’ type of ‘story remedy shall be
followed; but the mere fact that an actual or threatened
Controversy is susceptible of relief through a general
‘connon law remedy, a remedy equitable in nature, oF an
Gxtraordinary legal renedy, whether such renedy' ‘8
Stcognised of regulates by etatute or not, shall not debar 2
party fron the privilege of obtaining 2 declaratory judgment
Ehiany case where the other essentials co such relief are pr
(Bmphasis added.)
Plaintiffs argue that HRS § 632-1 provides them with
the right to seek declaratory judgment where “{clontroversies
Anvolving the interpretation of . . . statutes, municipal
ordinances, and other government regulations, may be so
determined.” Plaintiffs also rely on Pires v. Phillips, 31 Haw.
720, 721 (Terr. 1930), in which this court ruled that it was
proper to grant declaratory relief concerning the meaning of
lease terms when the dispute between the parties concerning their
respective rights depended on the interpretation of the lease
itself.
on the other hand, the State and County contend that
under Bacific Meat Co, v. Otagaki, 47 Haw. 652, 655, 394 P.2d
618, 620 (1964), a declaratory judgment is not ordinarily
available to challenge the validity of a criminal statute, and
that the circumstances in this case do not warrant equitable
relief particularly because there are other adequate remedies of
law, such as defending a criminal prosecution. The State asserts
that the criminal court would be in a better position to resolve
all of the constitutional and legal questions that may arise
10
‘***F0R PUBLICATION*#*
concerning Hawaiian ancestry, cockfighting as a traditional
native Hawaiian practice, and other questions relating to an
actual criminal charge.
The State also relies on League of Women Voters of
Hawaii v. Doi, 57 Haw. 213, 552 P.2d 1392 (1976). In that case
the plaintiff sought a declaratory judgment on whether defendant
elections officer was required by the Hawai'i State Constitution
to place the question of whether there should be a constitutional
convention on the 1976 general election ballot. The issue became
moot when the legislature submitted the question to the
electorate to be voted on at the 1976 general election. The
circuit court dismissed the case on sunmary judgment. On appeal,
the plaintiff agreed that the issue was moot but contended that
the interpretation of the constitutional provision as to future
years remained unresolved. This court dismissed the appeal,
declining to “decide important questions regarding the scope and
constitutionality of a particular case in advance of its
immediate adverse effect in the context of a particular case.”
Ids at 214, 552 P.2d at 1393 (citations, brackets and quotation
marks omitted) .
wv.
In the instant case, the court determined in conclusion
no. 3 that “{HRS) chapter 632. . . allows for judicial
resolution by means of declaratory judgment.” Further, the court
in conclusion no. 4 noted that “declaratory judgment will serve
to terminate any uncertainty relative to the claim that
n
‘***FOR PUBLICATION***
cockfighting is a cultural and traditional native Hawaiian right
protected under the Hawai'i Constitution.”
Generally, courts have been hesitant to employ
declaratory relief as to criminal matters. There are two general
views as to the propriety of declaratory relief with respect to
criminal matters. MW. £. Shipley, Validity, Construction, and
Application of Criminal Statutes or Ordinances as Proper for
Declaratory Judgment, 10 A.L.R.3d 727 (2004). The first view is
the traditional one, that declarative relief is inappropriate as
to criminal matters. Id. See also Schwartz v O'Connell, 124
N.Y.S.2d 397 (N.Y, Sup. Ct. 1952) (noting that a court will not
grant declaratory judgment where its effect will be to restrain
criminal prosecution, or to interfere with the enforcement of
criminal law, particularly when facts are in dispute or open to
different interpretations); Witschner v. City of Atchison, 117
P.2d 570 (Kan, 1941) (holding that declaratory judgments should
not be used as a restraint against criminal action).
‘The second view many jurisdictions have taken is that
declarative relief should be limited to certain circumstances.
‘This approach essentially incorporates the traditional view, but
allows for certain exceptions. We have accepted such an
approach. In Pacific Meat Co., this court adopted the "Missouri
rule” stated as follows:
t eatery dud
waicss re cepenin
‘iireuserances; That form of relier is usually
Snnecessary where a\full and adequate remedy is provided by
another well-known form of action? ‘the purpose of 2
Geclaratory judgnent is to serve some practical end in
12
‘**#F0R PUBLICATION*#*
abllizing an uncertain or disputed jural
quieting or
F 35 to present or prospective obligations;
elation ei
sudinariiy it cannot be utilized aso device to
cizcimvent the -cenerel rule thet equity will ner eneein the
‘snfarcenent of a valid criminal statute: neither will i: be
the public and law violators on particular Zacks where no
‘special circumstances require ic
47 Haw. at 655, 394 P.2d at 620 (emphases added) (quoting Liberty
Mut. Ins. Co, v. Jones," 130 $.W.2d 945, 953 (Mo. 1939)). See
also Reed v. Littleton, 9 N.E.2d 814, 615 (N.Y. 1937) (stating
that “[t]he rule has been firmly established that [the court]
will not ordinarily intervene to enjoin the enforcement of the
law by the prosecuting officials . . . unless under proper
circumstances there would be irreparable injury, and the sole
question involved is one of law. . . where a clear legal right
to the relief is established[]” (internal citations omitted).
In Pacific Meat Co., the plaintiff filed a bill in
equity to enjoin the defendants from enforcing an act requiring
labels to be affixed to all poultry and poultry products. The
action was dismissed on the basis that “plaintiffs had an
adequate remedy of law, i.e., defending a criminal prosecution.
Pacific Meat Co., 47 Haw. at 654, 394 P.2d at 619 (emphasis
added). The plaintiffs then refused to comply with the labeling
» oon 130 S.W.2d 945, 953 (Mo. 1939),
the issue was! whether declarative Feller could be used to decide w!
“lay” employees of the plaintiffs (various insurance companies) wei "
in the unauthorized practice of law and in doing business in investigating and
adjusting claims. The Missouri Supreme Court explained thet a declaratory
judgement should be used with caution and was not to be used aaa substitute
for ail other renedies. ig, However, that court granted declarater;
because there “were questions of business conduct affecting the inte:
large part of the public” and “the criminal aspects of the case were
lnimportant as compared with its general import.” 1d, Those factors are not
apparent in this case.
a3
‘+#*P0R PUBLICATION***
requirements and were twice served with violation notices. Id.
However, the defendants declined to bring criminal proceedings
against the plaintiffs. Id. The plaintiffs then brought a suit
for declaratory judgment to determine whether the act was
unconstitutional
In light of the defendant’s adamant refusal to provide
another “full and adequate remedy” to determine the plaintiffs
rights, this court allowed declaratory relief. Id. at 656, 394
P.2d at 621. After approving the "Missouri rule” quoted above,
it was concluded that declaratory relief would be available under
the circumstances. Identifying those circumstances, this court
said that “the statute is malum prohibitum, (*] it affects =
continuing course of business, and a method of testing the
statute was not in fact available in the criminal court because
the predecessors of the defendant refused to bring criminal
Proceedings.” Id. at 656, 394 P.2d at 620.
v.
As in the case of Bacific Meat Co., courts have
permitted declaratory relief in criminal matters where property
rights have been directly affected, especially if a continuing
course of business is involved. See Sun Oil Co, v. Dir, of the
Divi on the Necessaries of Life, 163 N.£.2d 276 (Mass. 1960)
(declaratory relief granted when ongoing business relations
% Malumorchibitun is “{a]n act that is a crime merely because it is
prohibited by statute, although the act itself is not necessarily immoral
Misdeneanors soch as Jaywalking and running a stoplight are mala prohibita, as
fare many regulatory violations.” kre Lau Dictionary 976 (8 ed. 2004)
4
+#*P0R PUBLICATION*#*
affected); Stecher v. Houston, 272 S.W.2d 925 (Tex. Civ. App.
1954) (dismissing action for the stated reason that the validity
of a criminal statute, without vested property rights involved,
is exclusively in the criminal courts jurisdiction); and Dovle v
Clark, 41.N.E.2d 949 (Ind. 1942) (allowing declaratory judgment
to determine the constitutionality of a penal statute which
affects business or occupation), app. dismd,, 317 U.S. 590.
on the other hand, it has also long been established
that declaratory relief is not appropriate for criminal matters
“where a full and adequate remedy is provided by another well-
known form of action,” particularly by testing the statute in a
criminal proceeding. Bacific Neat Co., 47 Haw. at 655, 394 P.2d
at 620. Of the three factors set forth in Pacific Meat Co., only
one arguably exists in this case, which is that the ordinance and
statute against cockfighting are malum prohibitum.
vr.
Plaintiffs’ request for declaratory relief does not
involve a continuing course of business, as in Bacific Meat Co,
See Lane=Marvey Corp, v. McCaffrey, 119 N.Y.S.2d 830, 833 (N.Y.
Sup. Ct.) (noting that “[wJhere the dominant purpose is to obtain
Anmunity from criminal prosecution declaratory relief is
unwarranted and interferes with the administration and
enforcement of the laws[]”), aff'd, 282 App. Div. 1013, app den.,
283 App. Div. 655 (1953). And unlike in Pacific Meat Co., where
the defendants refused to bring criminal proceedings, Plaintiffs
do not argue or demonstrate ‘facts indicating that they are in a
4s
‘**4FOR PUBLICATION***
similar situation but, rather, aver to the contrary, Therefore,
we conclude that this case lacks the special circumstances akin
to considerations in Pacific Meat Co, that would warrant
declarative action."
vir.
While criminal proceedings may be inconvenient and
costly, we agree with the State that it is the best forum to
resolve all of the factual, statutory and constitutional
questions that may arise in this case. Cf. State v. Kaneakua, 61
Haw. 136, 142, 597 P.2d 590, 593 (1979) (where defendants had
stipulated to participating in cockfighting, HRS $ 711-1109(1) (a)
(1965 Repl.), pertaining to cruelty to animals, encompassed
gamecocks and cockfighting but this court would not decide
hypothetical cases “as applied to other persons in situations not
before the court”).
‘The relief that Plaintiffs request is essentially one
of injunctive relief and would prohibit the State and County from
enforcing HRS § 711-1109(1) and MCC § 9.08.010 against them.
Such an injunction would greatly interfere with the enforcement
of the law, especially in the determination of who should or
should not be prosecuted. A declarative judgement in favor of
Plaintiffs in this context would likely hinder enforcement of
what are presumptively valid laws. See State v, Adler, 108
Hawaii 169, 177, 118 P.3d 652, 660 (2008) (recognizing that “this
© in the cases cited by the concurring and dissenting opinion, the
eLzcunstances did not include that prosecution had been refused,
16
‘+#*P0R PUBLICATION***
court has consistently held that every enactment of the
legislature is presumptively constitutional, and a party
challenging the statute has the burden of shoving
unconstitutionality beyond a reasonable doubt”); State v. Kan, 69
Haw, 463, 495, 748 P.2d 372, 380 (1986) (confizming that “{e]very
enactnent of the Hawaii Legislature is presumptively
constitutional, and the party challenging a statute has the
burden of showing the alleged nconstitutionelity beyond
reasonable doubt[]"). As noted above, declaratory relief will
not ordinarily be enployed to determine the enforcenent of
criminal statutes, and in the absence of the particular
circumstances Like those in Pacific Meat Co., we believe it is
snappropriate here."
vant.
For the foregoing zeasons, the court's September 22,
2004 judgment and its August 31, 2004 findings, conclusions, and
order granting Defendants’ motion to dismiss complaint are
vacated and the case is remanded to the court with instructions
to (1) enter summary judgment in favor of the County on ite
motion and in favor of the State on its joinder to the County's
8 Although the concurring and dissenting opinion maintains that our
citation t 47 Haw. €52, 294 F.2d 618 (2960),
Scontenplates only two sets Of circumstances in which a plaintiff has standing
to test a criminal statute through a declaratory action(,]” concurring and
dissenting opinion at 1, Plaintiffs do not suggest circumstances other than
those noted previously as grounds for departing from the ordinary Tule agsinst
declaratory relief for criminal lews. Therefore, we need not decide what
other eircunstances would justity declaratory relief.
1”
‘***FOR PUBLICATION*#*
motion and (2) enter judgment therein, in accordance with this
opinion.
on the briefs:
vJames Richard McCarty for
plaintiffs-appellants.
David A. Webber and
Deborah Day Emerson,
Deputy Attorneys General,
State of Hawaii, for
defendant-appellee state
of Hawaii.
vane £. Lovell, Deputy
Corporation Counsel, County
of Maui, for defendant~
appellee County of Maui.
18
Gin
Pune Or areanue
pron
Gores «ces +
|
95f10694-cb5a-4307-a2a9-7e435a7fbf42 | State v. Feliciano. Dissenting Opinion by J. Acoba [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
---000-
STATE OF HAWAT'I, Plaintiff-Appellee,
HAL FELICIANO,
Defendant-Appellant -
ro.
soe
No. 26273
E
APPEAL FROM THE FIRST CIRCUIT couRT Ea)z
(CR. NO, 021-1177) e
Lie S-
JOLY 5, 2005
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY,
33.2
AND ACOBA, J., DISSENTING
MOF THE purl
befendant-appellant Hal Feliciano appeals from the
Circuit Court of the First Circuit's judgment of conviction filed
on November 19, 2003, the Honorable Richard K. Perkins presiding.
Feliciano shot his cousin, Alex Stoesser, in the eye with 2 .22
caliber revolver. The circuit court convicted Feliciano on three
counts: (1) attempted murder in the second degree (Hawai'i
Revised Statutes (HRS) §§ 705-500, 707-701.5, and 706-656)
[hereinafter, attempted murder in the second degree); (2) place
to keep pistol or revolver (HRS $§ 134-6(c) & (e)) [hereinafter,
place to keep]; and (3) carrying, using or threatening to use a
firearm in the commission of a separate felony (HRS $5 134-6(a) &
gas
*** FOR PUBLICATION ***
(e)) (hereinafter, use of a firearm]. Feliciano was sentenced as
follows: (1) Life with the possibility of parole and a three-
year mandatory minimum term of imprisonment! for count ones (2)
ten years for count two; and (3) twenty years for count three.
on appeal, Feliciano argues that the circuit court erred by:
(1) violating the Hawai'i Constitution’s double jeopardy clause
when it (a) punished him for conduct by sentencing him to a
mandatory minimum term of imprisonment pursuant to § 706-660.1
and then punishing him a second time for the same conduct with
convictions of use of a firearm and place to keep, and (b)
convicted him of attempted murder, place to keep, and use of a
firearm; and (2) concluding that neither the HRS $ 704-400
defense (entitled "Physical or mental disease, disorder, or
defect excluding penal responsibility”) or self-defense applied.
Wie disagree with Feliciano, and affirm the circuit court’s final
judgment, guilty convictions, and sentences in all respects.
T. BACKGROUND
A. Event
on June 1, 2002, Stoesser (Feliciano’s cousin) went to
belia Feliciano’s (Feliciano’s mother) (hereinafter, Delia’)
! the circuit court sentenced Felicieno to serve a mandatory ainimun
term of imprisonment of three years pursuant to HRS § 706~660.1, entitied
SSentence Sf imprisonment for use of 2 firearm, semiautomatic firearm, or
automatic firearm ina felony.”
+ In the circuit court's findings of fact and conclusions of law,
Feliciano’s mother's name is spelled “Delia.” tn the March 6, 2003
transcript, ner nase is spelled “Delia.”
2
*** FOR PUBLICATION ***
house and gave her $600 ($100 was owed to Delia and $500 was a
loan). Feliciano lived at Delia’s house as well. Later that
night Delia claimed that the money Stoesser gave her was missing:
Stoesser (who had been drinking) refused to believe Delia and
began arguing with her? Feliciano asked Stoesser to leave. The
next morning, Stoesser returned to the Feliciano residence.
There was conflicting testimony as to what happened at
this point. Delia testified that Feliciano told her that he
would pay Stoesser the money and that when Stoesser and Feliciano
left in Stoesser’s truck they were going to an ATM to withdraw
money. Feliciano testified that he went with Stoesser to throw
away @ couch and visit Stoesser’s co-worker Graham? (who Stoesser
also suspected of stealing the money), Stoesser testified that
when he arrived at the house that morning Delia asked him to take
Feliciano out of the house because they could not handle him. In
e left
any event, later that same morning, Feliciano and stoes:
the Feliciano residence in Stoesser’s truck. Sometime before
noon, Feliciano and Stoesser got into an argument (while in
Stoesser’s truck) and Stoesser referred to Feliciano as a “stupid
mother fucker.” Stoesser saw that Feliciano had a gun and asked
him “Why you bring the gun stupid mother fucker, you wanna shoot
me?" Stoesser eventually stopped the car and told Feliciano to
get out, saying “Get the fuck out stupid. What, you going shoot
* Feliciano did not testify as to Graham's full nane.
3
*** FOR PUBLICATION ***
me? What's the problem?” A few moments later, Feliciano shot
Stoesser in his right eye. After shooting Stoesser, Feliciano
walked approximately two-tenths of a mile west of the shooting
until he was disarmed and arrested by police who had been called
by a witness to the shooting. After the police arrested
Feliciano, they brought him to the Pearl City Police Station
where his hands were processed for gunshot residue. Police
officer Chase Inamine testified that while the evidence
specialist was processing Feliciano’s hands Feliciano said, “I
shot with my right.”
B. Eeliciano's History of Mental Illness
In 1979, Feliciano suffered a mental breakdown while he
was stationed in Germany with the United States Air Force.
Feliciano was diagnosed as suffering from schizophrenia and was
discharged from the Air Force in 1981 as 100% disabled due to his
mental illness. Feliciano’s mental illness has been
characterized as a delusional belief that he possesses the
supernatural power to control and transform others through the
use of “supernatural devices” that may be invoked by using a
television remote control. Feliciano also believed that he was
one of several people: Hal, Halice, and Opel.‘ After his
discharge from the Air Force, Feliciano received the prescription
drug Risperdal to treat his mental illness; Risperdal is designed
+ vopel” is also referred to as “opal” in the court transcripts.
4
*** FOR PUBLICATION ***
to control delusions, hallucinations and aggressiveness. During
the months prior to the shooting Feliciano appeared to be taking
less than his prescribed dosage of Risperdal. For sone time
prior to June 2, 2002, Feliciano was smoking marijuana regularly
and using methamphetamine at least once a week.
c. Tek wictions, and Seni
on June 10, 2002, the State of Hawai'i (hereinafter,
prosecution] filed a complaint charging Feliciano with three
counts: (1) attempted murder in the second degree in violation
of HRS §§ 705-500 (1993),° 707-701.5 (1993),* and 706-656 (1993) ;”
SRS § 705-500, entitled “Criminal attempt,” provides in pertinent
part:
(1) A person is guilty of an attempt to commit a crine
LE the person:
(oy Tncentionally engages in conduct which would
Constitute the crime if the atrencant
Cizcunstances were a8 the person believes then
fo be; oF
() Intentionally engages in conduct which, under
the circunstances s# the person believes them to
be, constitutes a substantial step in » cours
OF conduct intended to culminate in the person's
Commission of the crime
(2) hen causing a particular result is an elenent of
the crime, "a person is guilty of an attempt to commit the
crime if, acting with the state of mind required to
Establish liability with respect to the attendant
Elrcunstances specified in the definition of the crime, the
person intentionally engages in conduct which is 3
Substantial step in a course of conduct intended or known to
cause such a result
“uns § 707-701.5, entitied “Murder in the second degree,” provides in
pertinent part: “(1) Except as provided in section 707-701, a person commits
Che offense of murder in the second degree if the person intentionally oF
knowingly causes the death of another person.”
* RS § 706-656, entitled “Terms of imprisonment for first and second
degree murder and attenpted first and second degree murder,” provides in
Pertinent part: “(l) Persons convicted of first degree murder or first degree
ECtonpted murder shall be sentenced to life imprisonment without possibility
5
*** FOR PUBLICATION ***
(2) place to keep in violation of HRS § 134-6(c) and (e} (Supp.
2004);" and (3) use of a firearm in violation of HRS $§ 134-6(a)
of parole.”
URS § 706-656 was amended in 1996, but those anendsents were to
subsection two, pertaining to marders which were “especially heinous,
Seiscious, or Gruel:*. Aa this subsection a not applicable in the pre
Gace, we cite to the 1993 version of the statute
+ gag § 134-6 entitled, “Carrying or use of firearm in the commission
of a separate felony) place to Keep firearms; loaded firearms; penalty,”
provides in pertinent part
(a) te shall be unlawful for a person to knowingly
carry én’ the person or have within the person's inmediate
Gontto! or intentionally use of threaten to use a firearm
hile engaged in the commission of 2 separate felony,
Vinether the firearm was Loaded of not, and whether operable
be'not; provided that person shall not be prosecuted under
this subsection where the separate felony 1
(2) A felony offense otherwise defined by this
chapter
(2) The felony offense of reckless endangering in
the first degree under section 707-713;
(3) The felony offense of terroristic threatening in
the first degree under section (707=716(1) (a) 1,
[io7=716(2) th) }y and (707-726 (2) (17 oF
(4) The felony offenses of criminal property damage
Inthe fitst degree under section 708-620 and
Grininal property damage in the second degree
Under section 708-821 and the firearm is the
(nstrunent of means by which the property damage
iS caused.
ic) Except as provided in sections 124-5 and 134-3,
‘sl firearms and ammunition shall be confined to the
possessor’s place of business, residence, or sojourn:
Provided that it shall be lawful to carry unloaded firearms
Ercunscnition or both in an enclosed container from the
place of purchase to the purchaser's place of business,
Pisidencer or sojourn, or between these places upon change
Of place of business, ‘residence, or sojourn, or between
These places and the following: a place of repair; a target
Eunges'a licensed dealer's place of business; sn organized,
icheduled firearms show oF exhsbit; a place of formal hunter
Gf firesrm use training or instruction; or a police station.
Sénclosed container” means 2 rigidly constructed receptacle,
or a commercially sanufactured gun case, or the equivalent
thereot that completely encloses the firearm.
je) Any person violating subsection (2) or (b) shall
be guilty of a class A felony: Any person violating this
bection by carrying of possessing @ loaded firearm oF by
Certying or possessing @ loaded or unloaded pistol oF
6
*** FOR PUBLICATION ***
and (e).? The complaint also alleged that, under the attempted
murder in the second degree charge, Feliciano was subject to
sentencing in accordance with HRS § 706-660.1 (1993)"* for use of
a firearm while engaged in the commission of a felony.
on September 10, 2002, the circuit court appointed a
three-menber panel of examiners to determine Feliciano’s fitness
revolver without # License issued as provided in section
{$e29"Shall be guilty of class B felony. Any person
yholating this section by carrying or possessing an unloaded
Hitearm, other than a pistol or revelver, shall be guilty of
felony.
Conviction and sentence under subsection (a) or (b)
shall bein adsition to and not in lies of any conviction
land sentence for the separate felony; provided that the
Sentence inposed under subsection (2) or (B) may run
Concurrently of consecutively with the sentence for the
Separate felony.
* For statutory text, see footnote 8.
% HRS § 706-660.2, entitled “Sentence of imprisonment for use of a
firearm, ‘semiautomatic firearm, or automatic firearm ina felony,” provides in
pertinent part:
(2) A person convicted of a felony, where the person
had a firearm in the person’ s possession or threatened its
Use or used the fizear= while engaged in the commission of
tthe felony, whether the firearm was loaded or not, and
Whether operable or net, may in addition to the
Undeterminate term of imprisonment provided for the grade of
offense be sentenced to a mandatory minimus tem of
Geprisonment without possibility of parole or probation the
Yength of which shall’ be as follows:
(a) For murder in the
in the second degree
() For a class A felony
() For a class 8 felony--up to five years,
{a} For a class C felony--up to three years.
‘the sentence ef inpriscnnent for a felony involving the use
of a firearm as provided in this subsection shell not be
Subject to the procedure for determining minimin tern of
[npelsonment preseribes under section 706-663; provided
further that 8 person who is imprisoned in a correctional
Institution as provided in this subsection shall becone
Gubject to the parole procedure as prescribed in section
506-670 only upon the expiration of the term of mandatory
Inprisonment fixed under paragraph (a), (5), (C)y oF (2+
\cond degree and attempted murder
up to fifteen years;
‘up to ten years
and.
7
*** FOR PUBLICATION *
to proceed and the extent of Feliciano’s penal responsibility.
The appointed examiners were Richard Kappenberg, Ph.D. (a
clinical psychologist), David Stein, M.D., Ph.D. (a
psychiatrist), and Terence Wade, Ph.D. (a clinical psychologist).
Reports from all three doctors were admitted into evidence, but
only Dr. Kappenberg and Dr. Stein testified at trial.
on January 2, 2003, Feliciano filed a notice of
intention to rely on a defense of mental disease, disorder or
defect, pursuant to HRS § 704-400 (1993)."" Feliciano’ jury-
waived" trial conmenced on February 27, 2003 and concluded on
March 6, 2003.
Dr. Kappenberg testified that he reviewed Feliciano’s
oahu Community Correctional Center (OCC) records and his records
at Adult Probation (which provide information about past
hospitalizations, police reports and Veterans’ Administration
records) and conducted a one and a half hour examination of
RS § 704-400, entitied “Physical or mental al
defect excluding penal Fesponsibility,” provides:
+ disorder, oF
(2) A person is not responsible, under this Code, for
conduct if at the time of the conduct as a result, of
physical or mental disease, disorder, or defect the person
Tacks substantial capacity either to appreciate the
wrongfulness of the person's conduct or to conform the
person's conduct to the requirenents of law.
(2) As used in this chapter, the terms “physical or mental
disease, disorder, or defect” do not include sn abnormality
manifested only by repeated penal oF otherwise anti-social
Conduct
© on February 27, 2003 Feliciano waived his right toa jury trial.
*** FOR PUBLICATION ***
Feliciano at OCCC. Based on the records and his examination, Dr.
Kappenberg opined that Feliciano was suffering from a paranoid
type of schizophrenia and polysubstance dependence at the time of
the alleged offense. Dr. Kappenberg further opined that at the
time of the offense, Feliciano’s cognitive capacity was not
impaired and that he was able to understand the difference
between right and wrong. Dr. Kappenberg based his opinion on
Feliciano’s description of the event (which comported with the
description given by other witnesses) and the fact that Feliciano
specifically indicated that there was no connection between his
beliefs (his supernatural ability to control others with a secret
device) and his behavior that day. When asked about Feliciano’s
behavior when he was arrested by the police, ise., telling the
police to take care of his gun and that he shot with his right
hand, Dr. Kappenberg stated that this showed that Feliciano was
aware of what happened, that he participated, and that he was
oriented and responding to his environment. Dr. -Kappenberg was
also asked about Feliciano’s behavior when he was being
questioned by the police, ists, identifying himself as “opel” and
believing that he was in Germany; Dr. Kappenberg stated that this
showed that Feliciano’s mental functions had decreased
significantly. Dr. Kappenberg opined that this decr
been caused by the stress of being arrested and pli
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On cross-examination, Dr. Kappenberg was questioned as
to why he did not conduct a further examination of Feliciano
after reading the report about Feliciano’s interview with the
police. Dr. Kappenberg replied that there was no need for a
further examination because there was no apparent connection
between what Feliciano said at his police interview and his
description of Feliciano’s behavior at the time of the alleged
offense. Dr. Kappenberg was further questioned as to whether
Feliciano was taking his medication at the tine of the incidents
he responded that the records were unclear, but that Delia said
that he would sometimes slip in taking his medications and
Feliciano stated that he had not taken his medication for a long
time, but was not clear as to how long this was. Dr. Kappenberg
also testified that he was aware of Feliciano’s history of mental
illness dating back to 1979 and 1980.
Dr. Stein testified that he reviewed Feliciano’ s
records" and examined Feliciano-at OCCC for about an hour; based
on his examination and review of records, Dr. Stein believed that
Feliciano was “psychotic at the time of the offense” and that the
psychosis was “most probably amphetamine-induced psychosis.”
Dr. Stein opined that the defendant’s appreciation of the
© De. Stein testified that he reviewed police reports, reports relating
to Feliciano’s service in the Air Foree, and post-discharge information from
the Veterans! Administration, Dr. Stein stated that he did not review the
Ocec records or the other doctors’ reports.
10
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wrongfulness of his conduct was not substantially impaired at the
tine of the alleged offense. Dr. Stein’s opinion was based on:
his examination of Feliciano, where Feliciano told him that it
was wrong to shoot people; Feliciano’s statements to the police
that he used his right hand to shoot Stoesser, demonstrating that
he knew what he had done; and Feliciano’s statement (during Dr.
Stein's examination) that he would not have shot Stoesser if
police officer was standing there, showing that Feliciano knew
that shooting Stoesser was wrong, and also demonstrating that
Feliciano had the ability to control his behavior. Dr. Stein
also testified that he was aware of Feliciano’s long history of
mental illness, anti-psychotic medication use, and substance
abuse.
on November 19, 2003, the circuit court entered its
judgment, guilty convictions, and sentences. The circuit court
convicted and found Feliciano guilty on all three counts and
sentenced him as follows: Count 1, life with the possibility of
parole; Count 2, ten years; and Count 3, twenty years. The
circuit court also granted the prosecution’s motion to sentence
Feliciano to a mandatory minimum term of imprisonment pursuant to
4 pr. Wade's report similarly concluded that Feliciano suffered from a
mental disorder, bot that Feliciano’ s delusional beliefs wore not connected to
The shooting. Dr. Wade opined that Feliciano had the capacity to appreciate
the wrongfuiness of his conduct and was not substantially impaired by his
hontal disorder at the time of the alleged conduct. Furthernore, Dr. Wade
Btated thet Feliciano believed he wag acting in self-defense.
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HRS § 706-660.1 for Count 1 and accordingly sentenced Feliciano
to a mandatory minimum of three years. Feliciano is currently
incarcerated; he filed a timely appeal.
TI. STANDARDS OF REVIEW
Constitutional Questions
“We answer questions of constitutional law by
exercising our own independent judgment based on the facts of the
case. . . . Thus, we review questions of constitutional law
under the ‘right/wrong’ standard.” State v. Jenkins, 93 Hawai'i
87, 100, 997 P.2d 13, 26 (2000) (citations, some quotation
signals, and some ellipsis points omitted).
B. Sufficiency of the Evidence
We have long held that evidence adduced in
the trial court must be considered in the
Strongest light for the prosecution when
the appellate court passes on the Legal
suiticlency of such evidence to support @
Conviction? the sane standard applies
iether the case wes before a judge or &
Jury, me test on appesi is not whether
Guile {p'estabiisned beyond a reasonable
Sout, But unether there wes substantial
Svidence to support the conclusion of the
there tect.
State x. Batson, 79 Haw. 236, 248, 831 7.24 926, 931,
‘Eeeberetzerattons dented, 79" aw. 625, 634. P28" 1325" (1992)
Yeitations onitted); ee also State v, Silva, 75 Haw. 419,
(est), 864 Pe24 $03, 590 (2993) (estatTons omitted) -
MSSibstantial evidence’ as to every material element of the
offense charged is credible evidence which is of sufficient
Guslity ond probative value fo ensble 2. (person) of
Eeasonabie caution to support a conclusion.” Batson, 73 Haw
ae 2ie-43, 631 Po2d at 981 (estation onitued). dee abso
Silva, 75'kaw. at (432), 864 P.2d at_ 590 (quoting State vy
Fe haw. 197, 203, 840 Pa2d 374, 379 (1993)
(2992) ])7 Stats v."Ablaca, 74 Haw. 94; 64-69, 837 F.2d
1298, 1304 (1992) (citations omitted)
in interest of John Doe, Born on January 5.1976, 76 Hawai"t
a8, 92°93, $69 P.24 1308, 1311-12 (1984); 286 also.
Yalatvia, 95 Hawai'i 465," 471, 24 P.3d 661, 667 (2001)
12
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ee
State v, Martinez, 101 Hawai'i 332, 338-39, 68 P.3d 606, 612-13
(2003) (alterations in original).
IIT. DISCUSSION
A. “suc Prosecution’
1. U.S. and Hawai'i Constitutional prohibitions against
double jeopardy
Article 1, section 10 of the Hawai'i Constitution
provides the following protection: “nor shall any person be
subject for the same offense to be twice put in jeopardy[.]” The
fifth amendnent to the United States Constitution similarly
provides that “nor shall any person be subject for the same
offense to be twice put in Jeopardy of life or Limb{.]” These
constitutional safeguards are commonly referred to as providing
protection against “double jeopardy.”
In State vi Lessary, 75 Haw. 446, 865 P.2d 150 (1994),
this court pointed out that double jeopardy provides protection
in three scenario:
“rt protects against 2 second prosecution
for the same offense after acquittal. It protects against a
second prosecution for the same offense after conviction. And it
protects against multiple punishments for the same offense.”
essary, 75 Haw. at 454, 865 P.2d at 154 (quoting North Carolina
ws Pearce, 395 U.S. 711, 717 (1969).
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“successive prosecution,” “multiple prosecution,”
and “multiple punishments”
“successive prosecution” cases occur when the defendant
is prosecuted for an offense, then is prosecuted a second time
for the same offense after acquittal or conviction. “Multiple
prosecution” (again “multiple prosecution,” not “multiple
punishments”) cases occur when the defendant is prosecuted for
the same offense at the sane time in two different courts, s.a.,
district court and family court. Both “successive prosecution”
and “multiple prosecution” cases require more than one
prosecution. In contrast, in “multiple punishments” cases, there
Sa a single prosecution after which the defendant is punished
multiple times for the sane offense.”
The Lessary facts presented one of the two “successive
prosecution” scenarios (as distinguished from the “multiple
punishments” scenario) following an alleged criminal episode
(that spanned multiple hours) with his estranged wife as the
victim. Lessary was charged by complaint in district court with
terroristic threatening and kidnapping of his estranged wife
(which was later amended to unlawful imprisonment). Id. at 449,
865 P.2d at 152-53. On the same day, Lessary was charged by
complaint in fanily court with abuse of a family menber. Id, at
% this distinction is important because each situation invokes
diftorent aspects of the double jeopardy clause. As we conclude infra, this
Gifgerence 1s also a justification for different tests for each type of case
(successive prosecution” end "multiple punishments”).
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—_—eSSSSSSSSSSSSSSSSSesesese
449, 865 P.2d at 152. Lessary pled “no contest” to the abuse
charge, and was sentenced to five days of incarceration and one
year of probation. Id, at 449-50, 865 P.2d at 152. Lessary
subsequently moved to dismiss the terroristic threatening and
unlawful imprisonment charges on double jeopardy grounds. Id. at
450, 865 P.2d at 152. The motion to dismiss was granted, and the
prosecution appealed. Id. at 450-51, 865 P.2d at 152-53.
3. Possible tests in double jeopardy ca:
In our analysis of double jeopardy in this “successive
prosecution” case, this court discussed the three tests that
courts have applied in determining whether offenses are the “same
offense” for double jeopardy purposes:
The “same elements” test initially set forth in
Blockburcer v, United States, 264 U.S. 299 (1932): “[t]he
applicable rule is that where the same act or transaction
constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or
only one, is whether each requires proof of a fact which the
other does not.” Lessary, 75 Haw. at 452, 865 P.2d at 153
(quoting Blockburger, 264 U.S. at 304) (alteration in original).
‘The “same conduct” test set forth in Grady ve
Corbin, 495 U.S. $08, 521 (1990)
“the Double Jeopardy Clause
bars any subsequent prosecution in which the government, to
establish an essential element of an offense charged in that
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prosecution, will prove conduct that constitutes an offense for
which the defendant has already been prosecuted." Lessary, 75
Haw, at 457-58, 865 P.2d at 155 (quoting Grady, 495 U.S. at 521).
‘The “same episode” test set forth in Ashe v.
Swenson, 397 U.S. 436, 453-54 (1970) (Brennan, J., concurring) :
“all offenses ‘that grow out of 2 single criminal act,
occurrence, episode, or transaction’™” are considered to be the
“same offense” for double jeopardy purposes. Lessary, 75 Haw. at
458, 865 P.2d at 155-56 (quoting Ashe, 397 U.S. at 453-54).
4. The Lessary “same conduct” test is used in
Successive prosecution” ca:
After discussing each of these tests in the context of
the Lessary “successive prosecution” facts, we rejected the
application of the Blockburaer “same elements” test and the Ashe
“same episode” test. Lessarv, 75 Haw. at 457-59, 865 P.2d at
155-56. With respect to the “sane episode” test, we concluded
that while the double jeopardy clause should protect an
individual from being twice put in jeopardy for a single act, it
should not protect an individual from separate prosecutions for
separate acts. Id. at 458, 865 P.2d at 156. With respect to the
Blockburger “sane elements” test, we concluded that its
protection was inadequate in “successive prosecution” cases
because its focus on the statutory definitions of offenses did
not prevent the government from initiating multiple prosecutions
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against an individual based on a single act as long as the
subsequent prosecutions were for offenses with “different”
elements. Id, at 456-57, 865 P.2d at 155.
We held that the Hawai'i Constitution provides greater
protection against “successive prosecutions” than does the United
States Constitution, and adopted the “same conduct” test in
“successive prosecution” cases:
Although the double jeopardy clause of the United state
Constitution does not bar the prosecution of either the
Unlawful Inprisonment or Terroristic Threatening charges, we
hold that the Hawei't Constitution provides greater
Protection against multiple prosecutions than does the
United States Constitution. “The double jeopardy clause of
the fawai't Constitution prohibits the Stave from pursuing
uitiple prosecutions of en individual for the sane conduct.
Prosecutions are for the same conduct if eny act of the
Gefendant £2 alleged to constitute all or part of the
Conduct elements cf the offenses charged in the respective
prosecutions. Onder the “sane conduct” teat, prosecution of
Efe Unlawful Imprisonment charge is barred while prosecution
of the Terroriatic Threatening charge is allowed,
Id. at 462, 865 P.2d at 157.
We take this opportunity to reconfirm that the “same
conduct” test is the proper test to be applied in “successive
prosecution” cases to determin€ whether an offense is the “sane
offense” for double jeopardy purposes under our Hawai'i
constitution.
a. ef Soest nts” Cases
Jumila, Brantley, and lesser included offen:
(HRS § 701-109)
We most recently addressed the issue of double jeopardy
An “multiple punishments” cas
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ee
950 P.2d 1201 (1998), and State v. Brantley, 99 Hawai'i 463, 56
P.3d 1252 (2002).
In Jumila, we held that convictions of both second-
degree murder (HRS § 707-701.5) and use of a firearm in
commission of a felony (HRS § 134-6) were improper under HRS §
01-109 because the second-degree murder charge was an included
offense of the firearm charge. Jumila, 87 Hawai'i at 3, 950 P.2d
at 1203.
In Brantley, a plurality opinion with three justices
concurring separately, we overruled Jumila; we held that a
defendant can be convicted of both use of a firearm in the
commission of a separate felony and the separate felony, despite
the HRS § 701-109 statutory prohibition, where the legislature
Intended to allow convictions for both offenses. Brantley, 99
Hawai'i at 469, 56 P.3d at 1258. While the double jeopardy
constitutional argument was implicated to the extent that the
plurality opinion and concurring opinion of Justice Levinson
acknowledged that HRS § 701-109 must be construed to provide the
minimum protections afforded by the fifth amendment’s double
jeopardy clause, the parties and this court focused on the
statutory interpretation of HRS § 701-109. Id, at 469 n.8, 56
P.3d at 1258 n.8.
‘These cases, however, primarily involved interpretation
of HRS § 701-109 (1993), entitled “Method of prosecution when
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OO
conduct establishes an element of more than one offense,” which
provides:
(2) When the sane conduct of @ defendant may
establish en element of more than one offense, the defendant
may be prosecuted for each offense of which such conduct is
Sh element. The defendant nay not, however, be convicted of
ore than one offense if
Ta) "one offense 1a included in the other, as defined
{n subsection (4) of this section; oF
Jai" A defendant may be convicted of an offense included in
an offense charged in the indictment or the information. An
Offense is so included whe
(a) “Te fs establishes
Al: the facts required to establis
the offente charged: or
(o) Tt consists of an attempt to commit the offense
Charged or to commit an offense otherwise included
therein; oF
(ce) Teaiffers from the offense charged only in the
Feepect that a less serious injury oF risk of injury
fo'Ehe same person, property, or public interest or a
Gieforent state of mind indicating lesser degree of
Cuipabiiity suffices to establish its commission.
by proof of the sane or less than
‘the commission of
In contrast, in this case, Feliciano bases his clains
of double jeopardy violations on the double jeopardy clause of
the Hawai'i Constitution. We will thus address the issue, for
the first time, of which test we should apply to determine
whether an offense is the “sane offense” under the double
jeopardy clause of the Hawai'i Constitution in multiple
punishments cases.
2. Lessary, Blockburger, and Dixon
In Lesgary, ve explained that we will only extend the
double jeopardy protections of the Hawai'i Constitution if we
find that the protections afforded by the United States
Constitution are inadequate. essary, 75 Haw. at 454, 865 P.2d
19
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Se
at 154. Our analysis must thus begin with the protections
provided under the United States Constitution in the “multiple
punishments” scenario. In Blockburcer, a “multiple punishments”
case, the United States Supreme Court ruled that the double
jeopardy clause protects defendants from receiving multiple
punishments for the same offense, even in a single prosecution,
and created the “same elements” test to implement that
protection. As stated earlier herein, the Blockburger test held
that “where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether
each requires proof of a fact which the other does not.”
essary, 75 Haw. at 452, 865 P.2d at 153 (quoting Blockburger,
2864 U.S. at 304). Put simply, in a “multiple punishments” case,
Af each offense has an element that the other does not, then
there is no double jeopardy clause violation. In United States
vs Dixon, 509 U.S, 688 (1993), the Supreme Court vigorously
debated the issue of whether to apply the “same elements” or
“same conduct” tests to “successive prosecution” cases before
overruling Grady and holding that the “same elements” test
W616 only one of the tyo crimes has an additional element, then one
crime is 4 lesser snciuded offense of the other. In this situation, the
Prosecution for the lesser included offense is barred by the “sane elenents”
Bese. The double Jeopardy clause protects against multiple punishments
becaise it prevents the state from prosecuting the defendant for both the
breates ond the lesser offenses. See Brantley, 99 Hawai'd at 472, 56 P.3d at
261 (Levinson, J., concurring).
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a
applies; it appears settled at the federal level that the “same
clenents” test applies in “multiple punishments” cases as well es
in “successive prosecution” cases.
the “sane elements” test protects a defendant's
double jeopardy rights and interests in a
‘multiple punishments” case.
‘Again, we have not previously adopted a test for
determining whether an offense is the “same offense” under the
double Jeopardy clause of the Hawai'i Constitution in “multiple
punishments” cases.” Feliciano argues that the “same conduct”
tn Skate vs Santiago, 8 Haw. App. 535, $40, 813 P.2d 335, 338
(i9sn), ana SPREE yoGaseta Os wawai's 92, 102, 937" P:2d 993, 943 (Ap.
{1331 and Statecalate Court of Appeals (ICA) ‘concluded that state ¥ tia, 55
1997), [thE Tipe sit P.2d 960, $04 (1973), established @ two-part test for
Now: ttle punishments” cases’ in Hawai'i." The ICA first applied the
Fre Ser Sane elements” test, then determined whether, “the law defining
Bigckburaee OWvenses 1s intended to prevent # substantially different harm or
cae ee eclaao € Haw. App. at Sat, 613 F.2d at, 338 (quoting Bia, S$ Haw. at
quits, SAM, tT capein, €5 Hawai'i at 102, 937 P.2a at 943 (quoting Ela,
2 oat eee ere piza at 284). However, the ‘holding in Pia is very narrow
35,8 bea hot establish the jiawai'i standard for constitutional “multiple
ant Hie cee coses:, See alsa Qunila, 07 Hawal't at 12 n-5, 950 8.24 at 1212
Punishaent cg nalayens, Jovy dissenting) (stating that gantiaga and Casio:
2.3 (Ransl weruled because these cases improperly relied on dicta that did
should be ely address the distinction between multiple punishments and
Successive proseautic
Te 'Pias the defendants were charged with: (1) committing assault
or battery on a teiice officer with the intent to obstruct the officer"
gx battery oF) (aiifally interfering with a police officer while the officer
duties: and (lecuting his duties. Bia, 55 Haw. at 15, 514 F.2d at $82. The
de lovialy Sment had iitele in che way of factual atiegations. Id ?he
gharaing d°cveg guilty to the second offense and then moved to dismiss che
defendants Pie agunle jeopardy grounds. Jd, at 15-16, 514 P.2d at $82-63)
ALrsE count sfon offered to prove that che offenses were based on seperate and
re Preece as the celal court, however, looked only at the information in, the
distincs Gscument and riled that both counts originated in the sane factusl
charg eee that, count two was a lesser included offense of count one:
seaeaee pon ti prad at S63. "Me held that wthe State should have been afforded
Jee 2 re sity to demonstrate that the first count of the information
he opportat Tyclgene separate from that upon which the defendants ples
set eaee the cecond count." Id at 17, Si F.2d at S83-64- This holding is
guilty in ih fangs for: in dicta, we also addressed the defendants’ ergusent
ol that Ha stes a lesser included offense of count one, but we concluded
(continued.
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test this court has adopted for “successive prosecution” cases
should apply to his “multiple punishments” case because: (1) it
comports with the common sense notions of double jeopardy
protections; and (2) it prohibits legislative “end-runs” around
his constitutional double jeopardy protections.
We do not believe, however, that it is necessary to
extend the protection of the Lessary “same conduct” test to
‘multiple punishments” cases. First, the rights and interests
protected by the double jeopardy clause, as it applies in
‘multiple punishments” cases, are adequately preserved by the
“same elements” test:
[t]he Fifth Anendeent double Jeopardy guarantee serves
principally asa restraint on courts and prosecutors. The
Vegislsture renaine free under the Double Jeopardy Clause to
define crines and fx puntanments; but once the legislature
has acted courte may not inpose more than one punishment for
the sane offense - ss + Where consecutive sentences are
Imposed at a single criminal trial, the role of the
Constitutional guarantes is limited to assuring that, the
Gourt does not exceed ita legislative authorization by
Smposing meltiple punishnents for the sane offense.
Brown v. Ohio, 432 U.S..161, 165 (197).
* In other words, the
double jeopardy clause (as applied in “multiple punishments”
*
thet, the
'ying on two separate physical acts, not one. Jd
Sear We did not establish a “Hawai's rule” to determine when multiple
punishments are barred by the Hawai'i Constitution's double jeopardy clause,
[iL As sven, Santiago and Caprig are overruled to the extent that these cases
herded that Fis established @ *fawai't rule" applicable to “multiple
punishment” cases because these cases misread Big in reaching this conclusion,
‘cont inved)
% when, on the other hand, successive prosecutions are at stake, the
guarantee serves “a constitutional policy of finality for the defendant’ s
Benefir.” 22 U.S, at 165 (quoting United States v. Jorn, 400 U.S.
0, 499 STI
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cases) ensures that the courts cannot punish a defendant beyond
what is authorized by the legislature. As such, the “same
elements” test adequately preserves the protections afforded by
the double jeopardy clause because it focuses on whether the
legislature intended to allow the imposition of multiple
punishments for the commission of a particular act, and ensures
that the courts cannot punish a defendant beyond what was
intended.
Second, in “multiple punishnents” cases, we do not have
the same concerns that caused us to apply the Lessary “sane
conduct” test in “successive prosecution” cases. As we expressed
in Lessary, the dangers in “successive prosecution” cases are as
follows:
Successive prosecutions, however, whether following
acquittals or convictions, raise concerns that extend beyond
merely the possibility of an enhanced sentence(.) The
taderlying one that is Seoply ingrained in at least
the Anglo-Anerican syston of Jurisprudence, is that the
State with ail ite resources and power should not be allowed
ted attempts to convict an individual for an
thereby subjecting hin to gubarrassment,
Gxpense and ordeal and compelling him to live in a
fontinuing state of anxiety and insecurity(.] Multipre
prosecutions also give the State an opportunity to reh
Tea"presentation of proof, thus increasing the risk of an
ertonsous conviction for one or more of the offenses
Gharged. Even when a State cen bring sultiple charg
‘against an individual under Blockburgss, a tremendous
fsdditional burden is placed on that defendant if he must
face each of the charges in a separate proceeding.
Lessary, 75 Haw. at 455-56, 865 P.2d at 154-55 (quoting Gradv,
495 U.S. at 518-19) (alterations in original). Third, a
legislative “end-run” around constitutional double jeopardy
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eee
protections is not possible so long
the legislature acts
within its power to define criminal offenses and to set the
punishment for those convicted of these offenses. See Whalen v
United States, 445 U.S. 684, 689 (1980) ("[T]he legislative power
to define offenses and to prescribe the punishments to be imposed
upon those found guilty of them resides wholly with the
congress.) tev. ra, 106 Hawai'i 146, 158, 102 P.3d
1044, 1056 (2004) ("[T]he power to determine appropriate
punishment for criminal acts lies in the legislative branch.”
(Quoting State v, Bernades, 71 Haw. 485, 490, 795 P.2d 842, 845
(1990) .
Bexnades, 71 Haw. at 490, 795 P.2d at 045 (stating
further that the “courts cannot interfere unless the punishent
prescribed appears clearly and manifestly to be cruel and
unusual”). In “multiple punishments” cases, the double
Jeopardy clause serves as a constraint on the courts, ensuring
that the court cannot impose punishment upon a defendant that is
greater than what the legislature has authorized. As such, it is
not possible to have a legislative end-run as long as the
legislature is acting within its power.
The dissent disagrees with our analysis, contending
that the “same conduct” test should be applied as Lessary is not
Limited to “successive prosecution” cases, and that Lessary
extended double jeopardy protections against the legislature. We
respectfully disagree. ‘The facts of Lessary, discussed infra,
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show successive prosecution for abuse, terroristic threatening,
and unlawful imprisonment, and not a multiple punishments
scenario. As clearly stated by Justice Ramil in Jumila, 2
multiple punishments case decided after Lessary:
s[zinere is @ crucial distinction between Lessary and the
present. case =~
thie the press: ia mule a
us He Phrocecutions raise slanificant dangers that are
hot present in multiple punishment situations.
Concerns justify a nore rigorous standard for successive
prosecution cases
gumila, 87 Hawas's at 12, 950 P.2d at 1212 (Ramil, J.,
dissenting) (emphasie added). In addition, the dissent in
Brantley acknowledged that Lessary did pot decide the issue of
whether the “ame conduct” or “same elements” test applies to
multiple punishnents situations:
the question of whether state vs Lesgary, 75 Haw. 446, 865
piseis0 (1398), oF Blockburger v. United States, 284" 0.5.
Boon 32 8: ces 180, 76 E.G 306 (1932), applies to multiple
2ekteheente in a single prosecution has’ not been answered by
Chie court. See Tomomitey v. State, 93 Hawai'i 22, 31.
59s poad 323,582 tapp-2000) tReoba, J. concurring) ("the
Garrese court has net expressly indicated which test applies
Gace the sawal'i Constitution in the multiple punishnents
sizuation.”)
Brantley, 99 Hawai'i at 485, 56 P.3d at-i274 (Acoba, J.,
dissenting) (footnote omitted) -
‘The dissent’s contention that Lessary extended our
double jeopardy protections against the legislature is belied by
our subsequent decisions in Jumila end Brantley. In Jumila,
discussed infra, we stated that the legislature could, if it
desired, create an exception to the statutory prohibition set
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a
forth in HRS § 701-109 against convictions for both an offense
and an offense included therein. Jumlia, 87 Hawai'i at 4-5, 950
P.2d at 1204-05. In Brantley, we found that the legislature
indeed did intend to permit convictions of both HRS § 134-6(a)
and the separate felony (the included offense), and held that a
defendant can be convicted of both offenses. Brantley, 99
Hawai'i at 469, 56 P.3d at 1258.
our jurisprudence on this issue, grounded in the beliet
that the double jeopardy clause is primarily a restriction on the
courts and the prosecution, which allows the legislature (within
the boundaries of the eighth and fourteenth Anendents to the
united States Constitution and article I, section 12 of the
Hawai'i Constitution) to define crimes and fix punishments, is
consistent with the jurisprudence of the United States Supreme
court. In addition, with the exception of Indiana cited in the
dissent, we have been unable to locate any other jurisdiction,
state-or federal, whose majority has agréed witi'the dissent’ s
argument; the dissent’s premise (with the exception of Indiana)
has been espoused solely in dissents. See, e.g, Missouri ve
Hunter, 459 0.8. 359, 370 (1983) (Marshall, J., dissenting)
(stating that the legislature cannot authorize multiple
punishments). Me reject the dissent’s argument as it is contrary
to the double jeopardy jurisprudence of the United States Supreme
26
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Court and this court.” We consequently hold that the double
jeopardy clause does not constrain the legislature from
Antentionally imposing multiple punishments upon a defendant for
separate offenses arising out of the same conduct.
In conclusion, we believe that the protections afforded
by the United States Constitution, as set forth in the
burger “same elements” test, adequately protect against
double jeopardy in “multiple punishnents” cases.
c. Licat. i" “same Elements” Test to
Feliciano
Feliciano asserts that his rights to double jeopardy
protection were violated when he was convicted of and sentenced
for three offenses: (1) attempted murder in the second degree
(HRS § 706-500, 707-701.5, and 706-656), with a sentence of life
imprisonment with the possibility of parole, and a three-year
mandatory minimum term sentence under HRS § 706-660.1); (2) place
to keep pistol (HRS § 134-6(c) and (e)), with a ten-year
sentence; and (3) Use of a*firearm in the commission of a
separate felony (HRS §134-6(a) and (e)), with a twenty-year
sentence. Specifically, Feliciano contends that his
constitutional double jeopardy rights were violated in two ways.
First, he argues that the circuit court's sentence for use of a
% Le we were to adopt the dissent's argument, HRS § 701-109 would be
rendered unconstitutional becouse this statute authorizes the legislature to
Impose multiple punishments for separate offenses arising out of the same
conduct.
27
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firearm in the commission of a separate felony constituted
multiple punishments for the same offense in two ways
between use of a firearm in the commission of a separate felony
and HRS § 706-660.1, and as between using a firearm in the
commission of a separate felony and attempted murder in the
second degree. Second, he argues that the circuit court’s
sentence on place to keep constituted multiple punishments for
the same offense in three way:
(a) as between place to keep and
attempted murder in second degree; (b) as between place to keep
and HRS § 706-660.1; and (c) as between place to keep and use of
a firearm in the commission of a separate felony.
Application of the Blockburger “same elements” test to
each violation of double jeopardy alleged by Feliciano reveals
that Feliciano’s constitutional rights have not been violated.
. Use of a Firearm and Second Degree Attempted Murder
‘The elements of murder in the second degree are:
(1) causing the death of ancther person? and (2) doing so
intentionally or knowingly. HRS § 707-701.5. The elements of
attempt are: (1) engaging in conduct which would constitute the
crime if the attendant circumstances were as the person believed
them to be; or (2) engaging in conduct which, under the
circumstanc
the person believes them to be, constitutes a
substantial step in a course of conduct intended to culminate in
28
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the person’s commission of the crimes and (3) engaging in either
element (1) o (2) intentionally. HRS § 705-500.
use of a firearm has the following elenents:
(1) carrying, having within the person’s immediate control,
using, or threatening to use a firearm; (2) while committing
separate felony; and (3) engaging in elements (1) and (2)
knowingly. HRS § 134-6(a). Use of a firearm requires proof of
fact thet second degree attempted murder does not -- that the
person use a firearm. A person can commit second degree
attempted murder with or without the use of 2 firearm. Attempted
murder requires that the person intended to cause the death of
another person -- an element not present in the use of a firearm.
Each offense has an element which the other does not, and thus is
a separate offense for double jeopardy purposes.
Attempted murder is, however, an included offense of
use of a firearm, As we discussed in Jumila, HRS § 701-109
prohibits convictions for both an offense and an offense included
therein. However, in Brantley, 99 Hawai'i at 469, 56 P.3d at
1258, after examination of the legislative history of the use of
a firearm statute (HRS § 134-6(a)), we held that: (1) the
legislature intended to permit convictions of both HRS § 134-6(a)
and the separate felony; and (2) HRS § 134-6(a) was a statutory
exception to the prohibition against convicting for both an
offense and an included offense set forth in HRS § 701-109.
29
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‘therefore, per our holding in Brantley, Feliciano can be
convicted of both attempted murder and of use of a firearm.
2. Place to Keep and Attempted Murder in the Second Degree
The elements of place to keep are: (1) carrying or
possessing a loaded cr unloaded firearm; (2) doing so when the
firearm was not confined in an enclosed containers and (3)
carrying or possessing the unenclosed firearm in a place other
than the person’s place of business, residence, or sojurn or
between specific places (i.e., place of purchase or repair,
target range, police station, etc.). HRS § 134-6(c). Attempted
murder in the second degree and place to keep do not share any
common elements, and thus are separate offenses for double
jeopardy purposes.
3. Place to Keep and Use of a Firearm
Both place to ke
p and use of a fir
rm require that
the person carry a firearm, However, use of a firearm requires
thatthe person commit a separate felony, an element not required
by place to keep. Place to keep focuses on location (i.e.,
whether the person was at an authorized location or traveling
between authorized locations), an element which is not present in
use of a firearm. Place to keep and use of a firearm are thus
separate offenses for double jeopardy purposes.
30
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eee
4. Conclusion
Each of the aforementioned offenses (attempted murder
in the second degree, place to keep, and use of a firearm)
contains elements which the ethers do not. Thus, the circuit
court did not violate the Hawai'i Constitution's double jeopardy
clause by convicting Feliciano of attempted murder in the second
degree, place to keep, and use of @ firearm.
D. 2% es im of
mum Term 5 fo nl
ciano Was Als ed tence
r Use of a in amis Ee
ui to
jultiple Punishments.
We previously concluded, aupra, that the circuit court
did not violate Feliciano’s rights under the Hawai'i
Constitution's double Jeopardy clause by convicting Feliciano of
attenpted murder in the second degree, place to keep, and use of
2 firearm. However, Feliciano also contends that his
constitutional double jeopardy rights were violated when the
circuit court imposed a mandatory minimum term sentence pursuant
to HRS § 706-660.1 for attempted murder in the second degree when
Feliciano was also convicted of, and sentenced for, use of a
firearm in the commission of the separate felony of attempted
murder in the second degree. We disagree.
31
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Legislative intent is the proper analysis to apply in
determining whether double jeopardy bars multiple
punishnents.
We previously discussed, supra, the legislature's power
to define criminal offenses and to determine appropriate
punishments for the offenses. We held that the double jeopardy
clause does not constrain the legislature from intentionally
imposing multiple punishments upon a defendant for separate
offenses arising out of the same conduct. The issue we are faced
with in this case is thus whether the legislature intended to
punish Feliciano under both HRS § 134-6(a) and HRS § 706-660.1
for use of @ fizearm in shooting Stoesser.**
2, The legislature clearly intended to punish a defendant
multiple times if the defendant uses a firearm in the
ion of a felony.
In 1990, the legislature amended HRS § 134-6 as follows
(bracketed material deleted, new material underlined):
5136-6
ofa felony; [Place] place to Keep Firearns; loaded
fiearas; penalty. (a) 1 shail be unlawful fora person to
Knowingly possess of intentionally use or thresten to use a
care wae shether operable OF
(6) }40) any person violating thia section by
possessing, usin Se threstening touse a turers while
% the Blackburger “sane elenente” test applies to offenses only, and
does not apply when comparing 4 mandatory minimum sentence statute and an
Cffense. ‘Ball v. United States, 410 U.S. 856, Sel (1985) ("For purposes of
applying the BlocEouraar test in this setting’ as a me:
congressional intent, ‘punishsent’ must be the equiva:
Conviction and not simply the imposition of sentence.)
32
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Siass A felon.
990 Haw. Sess. L. Act 195, § 2 at 422 (footnote omitted). In
section 5 of the same bill, the legislature also amended language
in HRS § 706-660.1. 1990 Haw. Sess. L. Act 195, § 2 at 423-24.
While the amendments to the mandatory minimum statute are not
relevant (because they involve semi-automatic firearms) the fact
that the legislature amended HRS § 134-6 in the same bill that
contained the mandatory minimum sentence statute, HRS § 706-
660.1, shows that the legislature was aware of both punishments
and intended to punish a defendant who committed a felony while
using @ firearm multiple times.
b. 1993 legislative histor
In 1993, the legislature amended HRS § 134-6 as follows
(deleted material bracketed; new material underlined):
§ 134-6 (Possession) Carrying oF use of firearm in the
commission of = separate felony; place to keep firearss;
{ended firenras/ penalty. (a) it shall be unlawful for a
person to knowingly (possess) carry on the person or have
a or intentionally use
BMD RESPES Ge a firearm bile engaged in the commission
Cf a separate felony, whether the firearm was loaded oF not,
Gnd whether operable oF not lL
rosecss this 3 where th eats
Eien Toe he
*** FOR PUBLICATION ***
nstrunent or seans by which the property damsce
iecaused.
1 sha vs 2 knowin
EGitission of 2 felony offense involving the distribution of
fotrtend whether opereble of note
1993 Haw. Sess. L. Act 239, § 1 at 418. The House Judiciary
conmittee stated that this anendnent was to clarify that HRS s
134-6 “was not intended to apply to certain felonies which
atzeady have enhanced penalties for identical conduct. lise.
Stand. Comm. Rep. No, 472, in 1993 House Journal, at 1163. This
amendnent is significant, because while the legislature amended
the statute to exempt certain felonies, it did not exempt the
present situation, where the defendant is convicted of a separate
felony (to which the mandatory minimum is attached) and use of @
firearm.”
c. 1999 legislative history
In 1999, the legislature amended HRS § 134-6 as follows
(new material underlined) :
be guilty SPaveiase A Eelonyy Any Person viousting” chta
Carrying or possessing # loaded or unloaded pistol or
Hevolver without 2 ligense iseved as provided in section
1 me Senate Jodiciary Committee also stated that HRS § 134-6(a) “was
not intended to pemit charging of a separate felony for use of a firearm
Ghere the underlying felony involves firearm and is classified as a felony
for thst reason alone.” Sen, Stand. Comm. Rep. No, 1217, in 1993 Senate
Journal, st 1210
‘the Senate Judiciary Committee algo stated that the legislature created
the offense of "use of a firearm” to “recognize and deter the heightened
inted when a firearm is involved in the commission of a felony such
wGen. Stand. Conn. Sap. No. 1217, sn 1993 Senate Journal, at
34
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ee
134-9 shall be guilty of @ class B felony. Any person
Uisiacing this Section by carrying or possessing en unloaded
firearms other than a pistol of revolver, shall be guilty of
f class C felony.
u se oF
si the 2) vided
eet ecu with ee for
‘separate felon
1999 Haw. Sess. L. Act 12, § 1 at 12. The legislature made this
amendnent to clarify the law after this court issued Junila,
where we held that a defendant could not be punished for use of a
firearm and a separate, underlying felony. The Senate Judiciary
Committee stated that:
‘The purpose of this pill ie to clarify that any
conviction of sentence for cézrying or use of a firearm in
the conmiseion of # separate felony
ein any conviction and
Separate felony.
‘Your Committee believes that stronger and more certain
cies bein ate the
neence for the
rent asin uae.
‘Your Committee finds that clarification in
necessary due toe recent Hawaii Supreme Court case,
S1z, 87 Hew. 1 (1996), in whieh the Court held that
tie tfense of carrying of sing # firearm in the commission
Sea felony wes not punisheble as 2 separate offense from
the underlying felony. In gugila, the majority and the
SiSsene agreed that the legisiature could, if desired,
pernit-the conviction and sentencing for both offenses,
Ronover, the najority-and dissent disagreed as to whether
the legislature had done so, The majority found that there
as insufficient legislative history to conclude that the
[2gisiature had intended separate convictions and
Stencing. ‘The dissent disagreed, citing prior case law
Gnd lenguage in committee reperts indicating that carrying
Sr using s firearm in the commission of a felony could be
Charged in addition to the underlying offense,
‘Your Committee agrees with the dissent. Senate
Standing Committee Report No. 1217 (1993 Senate Journal at
{elo} clearly states "(alm offender who uses 2 firearm in
the commisston of # felony can be charged with,
fo 'the underlying offense @ class A felony under section
Tiu-tla] and therefore be subject to enhanced penalty.”
(emphasis added.)
‘At the some time, your Committee recognizes and seeks
to address another shortecning in the law, as pointed out by
35
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the Juaila dissent. The dissent noted that there waa
Snsuftuese: lati
‘sentencing under section 14-6101 and section 106-6601
sentence of isprisonment for-use of a firearm int felony
‘Xout Committee believes that when the application of both
‘SEARSSTE “Based anon the sane underiving felony:
Sen. Stand. Comm. Rep. No. 843, in 1993 Senate Journal, at 1296
(Emphases added, third emphasis in original). This legislative
history clearly shows that the legislature intended to punish
defendants multiple times for both the underlying, separate
felony (with a conviction and a mandatory minimum) and with a
conviction for use of a firearm.
We note that our recent decision in State v. Vellina,
106 Hawai'i 441, 106 P.3d 364 (2005), and the recent decision of
the ICA in State v. Coelho, No. 25805 Hawai'i _, __ P.3d _
(iiaw. Apr. 28, 2005), are consistent with, but distinguishable
from, our decision in this case.” In Yelling, the defendant
allegedly stole two firearms from an apartment. Vellina, 106
Hawaii at 445, 106 P.3d at 368. The defendant entered a plea of
® our decision today is also consistent with State ¥. Abrosio, 12 Haw.
496, 496657, #24 P.2d 107, 107-108 (1992), where the defendant ples no con
to charges Of kidnaping and possession of 2 firearm in the commission of &
Felony (among other charges) = The trial court imposed ma
of inpriscament for both the kidnaping charge and the pos!
Sh the commission of the felony of kignaping charoe. i
at 497, 824 F.2d at
108. we hela that a defendant could be sentenced to a mandatory’ minimun term
Of imprisonment in connection with the kicnaping conviction, but couls not be
Sentenced to a mandatory mininun term of imprisonment for the use of a firearm
Conviction. Ide at 498, 824 P-2d at 108. We based this holding on the fact
that [t]he legislature hes chosen to make the use of = firearm in the
comission of s felony the basis for enhanced sentencing for that felony, and
{thas also chosen to make such use # separate felony, Sut it clearly hae not
Chosen to inpose euo mandatory minimum sentences for one use of a gun.” Lk.
ar 497-98, 824 F.2d at 108.
36
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oe
no contest to the charges against him, which included two counts
of theft in the first degree. Id. at 444, 106 P.3d at 367, The
prosecution requested, and the court granted, mandatory minimum
terms of imprisonment (pursuant to HRS §§ 706-660.1(1) (c) and
706-660.1(3) (c)) as to both of the theft counts. Id, We stated:
Vellina did not possess, use, or threaten the use of a
firears while engeged in Of the felonies of
thet ofc firearm and a senivautonatic firearm. Vellina’ s
thet Sf ¢ firearm gas the entire felony; in other words,
there was no underlying felony that Velline committed while
possessing or using e firearm.
Ida at 447-48, 106 P.3d at 370-71.
In Goetho, the defendant was a felon who was on
probation; one of the terns of the defendant's probation was that
he was not to possess any type of firearm. While executing a
search warrant, police officers recovered a firearm fron the
trunk of the defendant's vehicle. The defendant was convicted of
prohibited possession of a firearm and sentenced to a ten-year
term of imprisonment. The trial court also inposed = mandatory
inimim term of imprisonment for the possession of a firearm
during the commission of a felony. Based upon statutory
construction and Hawai'i case lew, the ICA concluded that the
trial court could not convict the defendant for possession of a
firearm and sentence him for a mandatory minimum term of
imprisonment based upon the same possession of a firearm because
the legislature did not intend that the mandatory minimum term be
37
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applied where the entirety of the felonious conduct is the use or
the possession of a firearm.
Vellina and Coelho are thus both distinguishable fron
the present case. In the present case, the mandatory mininun
sentence was attached to a separate (from use of a firearm)
felony -- attenpted murder; in contrast, in Vellina and Coelho,
there was no separate felony and the trial courts improperly
attached the mandatory minimun term of inprisonnent to the use oF
possession of a firearm conviction.”
B. 704-400 pefens ~pefens
1. HRS § 704-400 Defense
Feliciano argues that the circust court erred in
relying on the opinions of Dr. Stein and Dr. Kappenberg because
both doctors failed to conduct a thorough examination of
Feliciano, specifically, Feliciano argues that Or. Kappenberg
and Dr. Stein failed to investigate Feliciano’s health status in
the weeks and nontiié’ Before the shooting and failed to ask
Fellclane questions about critical delusional beliefs. We
disagree.
he record shows that both doctors conducted a thorough
examination of Feliciano, Both doctors testified that they
reviewed Feliciano’s records, including police reports, Veterans’
D the holdings of this court and the ICA are also consistent with the
legislative history of HRS § 706-660.. See supra note
38
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oe
‘Administration records, Adult Probation records, and reports of
past hospitalization. Dr. Kappenberg also testified that he
reviewed Feliciano’s OCC records. Both doctors also conducted
clinical examinations of Feliciano where they spent @ hour to an
hour and a half examining Feliciano. Both doctors testified to
their knowledge of Feliciano’s history of mental illness, Thus,
the record shows that both Dr. Kappenberg and Dr. Stein conducted
a thorough examination of Feliciano.
the record also shows that the doctors investigated
Feliciano’s mental statue during the time before the shooting.
goth doctors testified as to Feliciano’s pattern of taking (or
not taking) his anti-psychotic medication and other drugs. Dr.
Keppenberg also testified that Feliciano told him that he was not
taking his anti-psychotic medication for a while before the
shooting, indicating that Dr. Keppenberg’s examination included
an inquiry into Feliciano’s mental state before the shooting.
Feliciano also argues that both doctors failed to make
inquiries as to critical delusional beliefs; however, this
argument is not persuasive because both doctors testified that
Feliciano’s delusional beliefs had no effect on his actions that
day. br. Kappenberg testified that Feliciano knew the difference
between right and wrong, could give a description of the event
(and that the description comported with the accounts of other
witnesses), and that Feliciano specifically indicated that his
39
*** FOR PUBLICATION ***
beliefs had no connection to the shooting. Dr. Stein similarly
testified that Feliciano knew that it was wrong to shoot people,
was aware of the event, and vas aware of his participation in
that event. Dr. Stein further testified that Feliciano's
capacity to conform his conduct to the requirements of law was
not substantially impaired at the time of the offense. All three
doctors opined that Feliciano’s delusional beliefs were not
connected to the shooting and that Feliciano was not
substantially impaired at the time of the shooting. In summary,
there was substantial evidence to support the circuit court's
conclusion that Feliciano was penally responsible for his conduct
at the time he shot Stoesser.
2. Self-defense
Feliciano also argues that the circuit court's
conclusion of law that “the shooting of Stoesser was not
justifiable under HRS § 703-304 has been proved beyond a
reasonable doubt by the prosecution” is irrelevant because
Feliciano did not raise self-defense.
Self defense is a defense in any prosecution for an
offense. HRS § 703-301(1) (1993); see also State v, Culkin, 97
Hawai'i 203, 215, 35 P.3d 233, 242 (2001). “Self-defense is not
an affirmative defense, and the prosecution has the burden of
disproving it once evidence of justification has been adduced.”
State v. Van Dyke, 101 Hawai'i 377, 386, 69 P.3d 88, 97 (2003)
40
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(quoting Culkin, 97 Hawai'i at 215, 35 P.3d at 242), Feliciano
was charged with shooting Stoesser in the eye; this conduct
constituted “deadly force.” See HRS § 703-300 (1993) (defining
deadly force as “force which the actor uses with the intent of
causing or which the actor knows to create a substantial risk of
causing death or serious bodily harm”). Such force would be
justified if Feliciano believed that deadly force was necessary
to protect himself against “death, serious bodily injury,
kidnaping, rape or forcible sodeny.” HRS § 703-304 (1993 and
Supp. 2004). Feliciano testified that he acted in self
MRS § 703-204, entitled “Use of force in self-protection,” provides:
(2) Subject to the provisions of this section and of
section 103-308, the use of force upon or toward another
person ie justifiable when the actor believes that such
ep snmeciately necessary for the purpose of protecting
1f against the use of unlawful force by the other
ceasion.
‘Of deadly force is justifiable under this
section If the actor believes that deadly force 1s necessary
fo protect himself against death, serious bodily injury,
Kighapping, rape, of forcible sodomy.
(3) Except as otherwise provided in subsections (4)
and ($) of this section; © person employing protective force
may-estimate the necessity thereof under the circumstunces
bs he believes then to be when the force is used without
Fetreating, surtendering possession, doing any other act
Wich ne has no legal duty to do, of abstaining from any
Taweun action:
(G) The vse of force is not justifiable under this
(a) To reesst an arrest which the actor knows is
being made by a law enforcement officer,
although the srrest {s unlawful; or
() To resist foree used by the occupier or possessor of
property of by another person on his behalf, were the
Seter knows that the person using the force’ is doing
fo under a claim of right to protect the property,
except that this limitation shall not apply if:
(i) The actor is a public officer acting in the
performance of his duties or a person lawfully
(continued. +.)
a1
*** FOR PUBLICATION ***
defense. On cross-examination, Feliciano testified that:
(1) Stoesser told him that he had a sawed-off shotgun; (2)
Feliciano thought that Stoesser was going to kill him; (3) when
Feliciano and Stoesser got into an argument before the shooting,
Stoesser hit Feliciano with his baton; and (4) Feliciano shot
Stoesser because he thought that Stoesser was going to shoot him
"(scone snved)
assisting him therein or
assisting ina lawful arzi
(4) The actor beleves that such force is necessary
fo protect himself against death or serious
bodily injury.
(5) The use of deadly force is not justifiable under
yotsen Af
te) "rhe actor, with the intent of causing death or
berious bodily injury, provoked the use of force
ageinet himself in the Sane encounter; oF
tb) The actor knows that he cen avoid the necessity
Ge using such force with complete safety by
Yetreating of by surrendering possession of &
thing £0 # person asserting a claim of right
thereto of by complying with 2 demand that ne
fEsin fron any action which he has no duty to
take, except that?
(i) the actor ie not obliged to retreat trom
his dwelling or place of work, unless he
was the instil aggressor or is assailed
in hia place of work by another person
whose place of work the actor knows it to
bey ang
Lit) Ropublic officer justified in using force
Tn'the performance of his duties, ox a
porson Justified in using force in his
BSsistance or a person Justified in using
force in making an arrest or preventing an
Escape, se not obliged to desist from
sfforts to perform his duty, effect the
Serest, of prevent the escape because of
feeiatance or threatened resistance by or
On behalf of the person against whom the
action is directed.
(6) The justification afforded by this section extends
to the use of confinenant ae protective force only if the
betor takes all reasonable measures to terminate the
Confinement az goon as he knows that ne safely can, unless
the person confines has been arrested on a charge of crine.
42
*** FORPUBLICATION ***
with his sawed-off shotgun. Feliciano further testified that he
only shot Stoesser once because he did not want to Kill him, he
only wanted “to neutralize the threat.”29 Peliciane having
raised the issue of self-defense, the circuit court did not err
by concluding that the prosecution proved that Feliciano was not
acting in self-defense when he shot Stoesser.
Iv. CONCLUSION
Wwe affirm the circuit court’s November 19, 2003 final
judgment, guilty convictions, and sentences in all respects.
on the briefs: Y
Phyllis J. Hironaka, Grr
Deputy Public Defender
for defendant-appel lent Blac Reavinson
Hal Feliciano
Mark Yuen
Deputy Prosecuting Attorney,
for plaintitf-appellee
State of Hawai’ Yom «Rt ry
25 purehermore, on cross-examination, Feliciano’ s counsel questioned
stoonrur an te unether he bad any nartial arts inplenents; Stoesser testified
Stoeaeer 28 Ceachakis (a weapon which consista of a pair of hardwood sticks
Saat eens choin) and a baton. Felicianc's counsel further quest ‘ones
joined bY, = Cohiheher ne had che implementa the day of the shooting snd)
Beoosser a8 0 Mtemvon Feliciano. Moreover, ali three doctors stated that
cee eee ig described his actions as self-defense.
3
|
0e79d87d-6272-41b0-9145-23c1d9ab29e6 | Freitas v. Administrative Director of the Courts. Partial Opinion by J. Acoba. Dissenting Opinion by J. Acoba. S.Ct. Opinion, filed 06/16/2004 [pdf], 104 Haw. 483. S.Ct. Order Denying Motion for Reconsideration, filed 07/20/2004 [pdf], 105 Haw. 130. | hawaii | Hawaii Supreme Court | ‘***FOR PUBLICATION*#*
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000:
DARCY C.K. FREITAS, Petitioner-Appellant
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAMAI"
Respondent -Appellee
SSS
No. 25323
APPEAL FROM THE DISTRICT COURT OF THE FIRST CTRCUIT
(CASE NO. JRO2~0012)
JULY 25, 2005
HOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY LEVINSON, J. AS TO PARTS I-III
(IDENTIFICATION SIGN-IN PROCEDURE) ;
OPINION OF TRE COURT BY ACOBA, J. AS TO PARTS IV-XIV (MERITS);
AND ACOBA, J., DISSENTING AS TO PART 111
LAL OF F THE LevIN
‘The petitioner-appellant Darcy C.K. Freitas appeals
fron the decision of the district court of the first circuit, the
Honorable Fa’ auuga To’ oto’e presiding, affirming the
adninistrative revocation of Freitas’s driver's license by a
hearing officer of the Administrative Driver’s License Revocation
Office (ADLRO). In his supplenental brief, Freitas argues
(2) that he was denied his state and federal constitutional due
process rights to an open ADLRO hearing on remand, (2) that the
hearing officer “ignored all evidence contrary to her
preconceived determination to uphold the ADLRO sign{-Jin
procedure[,]” and (3) that “the hearing officer's findings of
aa
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——
fact are clearly erroneous and her conclusions of law are
contrary to established law(.]""
In this portion of our opinion, we address Freitas’s
contentions that the ADLRO erred in ruling that the sign-in and
identification procedure employed at ADLRO hearings did not
deprive Freitas of his right to a public hearing. We hold that
the hearing officer's decision was correct, inasmuch as the
procedure satisfies the three-part test that this court
articulated in Freitas v. Admin, Dir, of the Courts, State of
Hawai‘i, 104 Hawai'i 483, 489, 92 P.3d 993, 999 (2004)
(hereinafter, “Ereitas 1”).
T. BACKGROUND
on July 14, 2004, the ADLRO conducted a hearing on the
question whether the ADLRO’s sign-in identification procedure
impermissibly limited Freitas’s right to a public hearing. At
the hearing, the deputy attorney general, on behalf of the
respondent-appellee Administrative Director of the Courts
(Director), called two witnesses: Lloyd Shimabuku, security
1 om appeal to this court in the first instance, Freitas argued,
Anter alia, thet the district court erred in impliedly ruling that
Freitas, was not entitled to a nearing on the ADLRO's restrictions on public
Access fo hearings and that public access to his hearing was not hindered,
thereby resulting in no violation of his state and federal constitutional
Fights to's public hearing.
Tn Freitas v. Adnin. Dir. of the Court, State of Maualii, 104
Hawai'i 493, 404, 52 Pad 993, 994 (2008), this court held, aiter alia, that
Nbecause ABLRO hearings are quasi-judicial administrative hearings, due
process requires that the hearings be public, and... . Freitas wag entitled
Eo'a hearing on his objections to the ADLRO sign-in and identification
Procedure Limiting public access to his hearing.” We therefore temporarily
Penanded the present matter to the ADLRO for a hearing on whether the ADLRO' s
Identification and sign-in procedures violated Freitas’s right to a public
hearing. Id. at 484, 92 P.8d at 994. On July 14, 2004, the ADLEO conducted a
hearing, heating officer Jacqueline L.2. Kaneshiro presiding. On July 16,
2004, the nearing officer entered her findings of fact (FOFs), conclusions of
Taw (Cols), and order determining that the AOLRO' s sign-in and identification
procedure did not inperniseibly interfere with Freitas’s right to a public
hearing.
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a
consultant to several Waikiki hotels and deputy chief in the
investigation division of the state department of the attorney
general; and Ronald Sakata, chief adjudicator for the ADLRO. The
Director also submitted into evidence two articles, one entitled
vA Situationist Perspective on the Psychology of Evil:
understanding How Good People Are Transformed Into Perpetrators,”
by Phillip G. Zimbardo, Ph.D., in The Social Psychology of Good
wil: Und n
(Arthur Miller ed., 2004), and the second entitled “Identity and
Anonymity: Some Conceptual Distinctions and Issues for
Research,” by Gary T. Marx, in Documenting Individual Identity
(5. Caplan and J. Torpey eds., 2001). Freitas’'s counsel called
four witnesses to testify: Reneau Charlene Ufford Kennedy,
Ph.D., psychologist: Patrick McPherson, attorney; Lois Perrin,
Director of the American Civil Liberties Union, Hawas'l; and
Michael Nakamura, retized chief of the Honolulu Police
Department.
Following the h
hearing officer entered twenty-five written supplemental FOFs and
ring, on July 16, 2004, the ADLRO
four written supplemental COLs, which stated in relevant part:
SUPPLEMENTAL FINDINGS OF FACT.
3." The ADLRO instituted this ID procedure as 2
curity measure te prevent unknown menbers of the ge
public from entering the inner-office area.
a1
5." te 1D procedure provides a reasonable means of
identifying and apprehending those persons who might engage
in undaetul or inappropriate behavior at an adninistrative
8. the 10 procedure provi
persons seeking entry past the front desk/reception counter,
Theluding those persone who wish to attend hearings, to
engage in unlaful, disruptive, or otherwise ineppropriate
‘vior while within the hearing and inier-office area.
‘3, “This deterrent effect arises cut of the fact that
persons who kriow that their identity has been recorded will
Seneraity be less Likely to engage in unlawful or
Snapproptiete behavior for the simple reason that they know
bel
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Sse
they can be held accountablé
‘R person who remains anonymous, on the other hand,
is more Likely to engage in inappropriate behavior if such
person knows that he of ahe might be able to "get away with
[ee Sha nce be hela accountable. This deterrent effect
nates the 1D procedure an effective security measure.
5° Although the ID procedure is not @ perfect
security measure, it is a fundamental first-step in the
ADLAO's security’ measures.
Jo. wr, Sakata, as Chief Adjudicator of the ADLRO,
instituted this 1D procedure based upon his experience and
connon sense understanding of human behavior...»
ity This finding 19 s1s0 supported by the testimony
of ur. Lioya Shimsbuku, 2 former police officer() and
Current Deputy Chief, special agent, at the Hawai's Attorney
General's office, who also serves as the liaison for
Honelend Security... . Mr. Shimabuku, who testified as en
expert on security neasires {without objection), and who ha
fag direct experience with sign-in and identification
Showing requirenents, testified that a sign-in and
{Genet fication requitenent does have 2 deterrent effect upon
a person who might otherwise be inclined to engage in
Snlawfel cr improper behavior, and that auch a requirenent
Serves as a fundanental or basic security measure.
12, “Articles by Stanford University psychology
professor Phillip ¢. Zimbardo, and M.I.T. emeritus sociology
Professor Gary Te Marx, 0 which no objection was made,
Provide further support for this finding, because these
Eteleles support the principle that anonymity makes people
nore Likely to engege in aggressive, evil, destructive, oF
Uniawéel benawsor. =.
33. "this Hearing Officer finds that these two
articles support the view that the ID procedure, by directly
Stripping « person of his or her anonymity, lessens the
{ikelinood thee the identified person will engage in
Unlawful, harmful, or otherwise inappropriate behavior ==
the adainistrative hearing and within the inner-office
"ia. “Me. Partington also elicited testimony from
former police chief Michael Naksnura that the 1D procedure
would have Little benefit to security, This Hearing Officer
Hinds that this testimony woe not particularly persuasive in
Ligne of the testimony of not only ADLRO Chief Adjudicator
Ronald Sakata, but the testimony of security expert Lloyd.
Shinabuka, and since Mr- Nakamura conceded that the ID
procedure could have sone deterrent effect...
SE: “With respect to attorney R, Patrick MoPherson’s
testimony, a8 elicited by Mr. Partington, in which MePherson
acknowledges that no state coure, trial Or appellate level,
Fequires one to show identification and sign{Jin in order to
attend a court proceeding, this Hearing Officer finds this
testimony unrelated to the ADLRO's unique circumstances in
Which, unlike the court butldings, the area to which
Counsel, respondent, and/or other menbers of the public are
Eequesting access, includes undifferentiated access to the
hesring room a2 well ae all other areas of the ADLRO office,
Including private offices of ADLRO employee: :
7 Peet [the ADLRO does not have separate public
and non-public Secess area(s). This distinguishing factor
Between courte and the ADLRO is critical and material in)
Getermining whether the ADLRO"s ID procedure is warranted.
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37, thie Hearing Officer finds that other security
measures, including a metal detector, x-ray machine and
Conveyor belt, a hand metal-detecting wand, and someone to
Operate these devices, or posting sheriffs or security
guards (arned or unermed) in or sear the hearing room ~
Nould be expensive and beyond the budget capabilities of the
RDLAO. "the uncontradicted testimony of Chief Adjudicator
Sakata setting forth the approximate costs of some of these
eesures, and how the ADLAO's budget would not allow such
eesures to be taken, supports this finding. On the other
hand, the 1D procedure costs virtually nothing)...
jo “Tafacaition, metal detectors, x-ray machines and
hand metal-detecting wands would do nothing to stop a person
Thtent on aecosting ADLRO staff or hearing attendees by
hand, arm, Leg oF foot, nor would cuch devices prevent
Somone from causing a’ vocal of verbal disturbance to the
Saministrative proceeding. The ID procedure, on the other
hand, could potentially deter such inappropriate
Behavior
5. “rurthermore, metal detection devices may be very
intrugive into person's privacy, by requiring people to
take their things out of their pockets, nave their bags x-
Fayed, oF thelr personal bodies searched by hand wand.
2. “In addition, this Hearing Officer finds that even
it such additional security seasures wore in place =~ 0.9.)
a'netal detector, x-ray conveyor belt, and hand wand, oF a
Security guard -- the ID procedure would provide an
Adsitional security Benetit in the form of deterrence(.]
see there is no less intrusive way to achieve this
particular form of deterrence ~~ based upon depriving
Person of her anonymity -- other than to have the ADERO’s 1D
Procedure in effect. Although security cameras, by
Recording the visual image of a person, do renove some level
of anonymity, they still leave person the chance of
Penaining unidentified, Indeed, security cameras, by
Capturing a continuing end visusl image of hearing
Sttendees, may be equally 4f not more intrusive upon a
person's privacy than the 1D procedure.
23." "thie Hearing Officer finds that there ts no 1
Antrusive way to provide the unigue deterrent effect created
by the ADLRO ID procedure other than to maintain the 20
Procedure, No other security measure could fully substitute
for the special and unique deterrent effect brought about by
Fequiring the showing of a picture 1D and sign-in, as it is
the most effective (and simplest) way of eliminating one
anonymity: es
25)" tnie Hearing Officer finds that although the 10
procedure is not perfect =~ e.9., people can sonetines
Sbtsin fake ID's, and sone people will engage in bad
behavior regardiess of being previdentified —- it renains a
Useful and feasonable security Reasure for the ADLRO. And
the 1D procedure is a very easy and simple process for a
prospective attendee to sect. A driver's license, a state
Eib. or other acceptable picture identification is all that
Se necessary. “If one does not already own a driver's
Lcense, 2 state I.0. can be obtained in most cases by
presenting a social security card, a birth certificate, and
Paying s nominal fee. Indeed, « driver's license, state
Tib., oF other acceptable picture identification, is
domething people need for all sorts of everyday activities,
including for example: check cashing, banking, end air
*#*FOR PUBLICATION*#*
ee
rave.
24, thie Hearing Officer finds that although the ID
procedure may deprive a person of his or her anonymity
Tigeed thet de precisely why the 10 procedure has an
effective deterrent effect ~~ that is not an especially
Significant intrusion because # person attending the hearing
Would have their face seen by hearing participants in any
Gvent, Furthermore, the ADLRO as a matter of policy does
fot distribute the sign-in 1ist to anyone, except in the
Gvent someone on that List engages in unlawful activity oF
Greates a disturbance,
uv can
T.the TD procedure
interest: “namely; enhancing security and
disruptions at ADLRO adninistrative hearings.
2. "this interest in enhancing security and avoiding
disruptions, and the meant employed, is unrelated to the
Gontent of the information to be disclosed in the
saninistrative proceedins
3. there 1a no less restrictive way to fully serve
this important governmental interest in enhancing security
Gnd avoiding disruptions at ADLRO administrative hearings
ind inner-cffice area, other than to continue with the £0
Procedure, Although other measures can add to security a
Neils there 1s no other less intrusive neans of achieving
the unique deterrent effect that arises out of depriving @
person of his or her anonymity. The ADLRO ID procedure is
Eke least intrusive means of achieving this unique deterrent
effect
i, the ADLRO ID procedure 1s therefore fully
warranted, and does not’ impermissibly interfere with =
Tespondent’s right tos public hearing.
IT. STANDARDS OF REVIEW
Judicial Review of Administrative Decisions
[f0Fs} are reviewable under the clearly
erroneous standard to determine if the agency
Seciaion was clearly erroneous in view of
Fellable, probative, and substantial evidence on
the whole record. "Alvarez v. Liberty louse,
Anse, #5 Hawai'i 275, 277, 342 F.2d 938, 542
(T5541; HRS §. 91-1649) (5)
icots) are freely reviewable to determine
kf the agency's decision was in violation of
constitutional or statutory provisions, in
Gnoese of statutory authority or Jurisdiction of
Agency, of affected by other error of law.
2 ‘84 Hawai'i 305, 310, 933 P.2d
HSS, Tata (1997) (cltations onitted) HRS
$8 91-149) (1), (2), and (8).
TA\GoL that prosents mixed questions
of fact and lau is reviewed under ‘the
Glearly erroneous standard because the
Conelusion is dependent upon the facts and
Circumstances of the particclar case.”
GSounty of Honcluiu, 17 Hawai's 168, 172,
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ee
983 .24 629, 633 (1994)...
Pool vi iaval4 Labor Relations Board], 67 Hawas's
{iS1,1 197,995 P.2a (308,) 973 [(1998)]
% 130 fawal"t 384, 392-93, 978 F.2d
822, 830-31 (1955)
‘An FOF oF a mixed determination of law and fact is
clearly erroneous when (1) the record lacks substantial
Evidence to support the finding or determination, or (2)
Sespite substantial evidence to support the finding or
Sotermination, the appellate court is left with the definite
nd fire conviction that a alstake hag been made. "Soa
u abe of 5 S394, 399, 988 P.2d
1220, 1235 11998). "we have defined ‘substantial evidence’
25 cfedible evidence which is ef sufficient quality and
probative value to enable @ person of reasonable caution to
Support a conclusion.” Id. (quoting state v, Kotig, 91
Hawei's 319, 328, 984 P.2a 7, 87 (1999)).
In re Wai‘ola 0 Moloka'i, Inc., 103 Hawai'i 401, 421, 63 P.3d 664,
684 (2004) (quoting In re e Perni ical
Hawai'i 97, 118-19, 9 P.3d 408, 430-31 (2000) (some brackets
added and some in original).
B. Questions of Constitutional Law
we answer questions of constitutional law ‘by
exercising our own independent judgnent based on the facts
Of the case,"” and, thus, questions of constitutional lew
Gre reviewed on appeal “under the "right/wrong’ standard.”
State v. Jenkins, 99 Hawaii 87, 100, 997 P.2d 13, 26 (2000)
{eltations omitted)
State v, Aplaca, 96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001).
III, DISCUSSION
In his supplemental brief, Freitas argues that the
hearing officer's supplemental FOFs and COLs upholding the
ADLRO’s sign-in and identification procedure are not supported by
substantial evidence in the record and are clearly erroneous. We
disagree.
In Exeitas, we invoked 2 three-faceted formalation for
determining whether a limitation on access permissibly furthers
the legitimate need to maintain “order and dignity” in a public
adjudicative proceeding: “(whether] the regulation serve[s) an
important government interest; (whether) the interest [is]
4**FOR PUBLICATION*#*
unrelated to the content of the information to be disclosed in
the proceeding; and [whether] there [is a] no less restrictive
way to meet that goal.” 104 Hawai'i at 489, 92 P.3d at 999
(quoting Brown ¢ Williamson Tobacco Corp, v. Fed, Trade Comm'n,
710 F.2d 1165, 1179 (6th Cir. 1983) (citing United states v.
O'Brien, 391 U.S. 367, 377 (1968))) (emphasis deleted). We hold
(2) that the ADLRO’s identification and sign-in procedure serves
an important government interest in securing ADLRO hearings,
(2) that the security procedure is unrelated to the content of
the information disclosed at ADLRO hearings, and (3) that there
is no less restrictive way to meet the goal of securing ADLRO
hearings. As such, we hold that the ADLRO’s identification and
sign-in procedure does not impermissibly infringe upon Freitas’s
constitutional right to a public hearing.
At the hearing on the propriety of the ADLRO's
identification and sign-in procedure, the Director adduced
evidence that the “ADLRO instituted (the] 1D procedure as a
security measure to prevent unknown menbers of the general public
from entering the inner-office area.” The Director further
demonstrated that the identification procedure “provides a
deterrent” to people engaging in “unlawful, disruptive, or
otherwise inappropriate behavior while within the hearing and
inner-office area.” The Director elicited testimony from Chief
Adjudicator Sakata that the ADLRO identification procedure was
established to “provide a deterrent to inappropriate behavior.”
The hearing officer found that the identification procedure was a
“fundamental first [step in the ADLRO’s security measures” and
determined that such a finding was supported by the testimony of
the security expert Shimabuku and the two psychology articles
proffered by the Director.
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ee
In United States v, Deluca, 137 F.3d 24 (1st Cir.
1998), the United States Court of Appeals for the First Circuit
held that the trial court’s requirement that trial spectators
present identification before entering the courtroom did not
violate the defendants’ rights to a public trial. In Deluca, a
United States Marshall sua sponte established a screening and
identification procedure for each spectator who wished to enter
the courtroom in order to help offset courtroom security risks.
137 F.3d at 32.
[t)n the circumstances presented here{,] we cannot a
that prudent identification procedures’ suitebly foc
Seterting would-be trial spectators who may pose
Gnscceptable risks =~ either to the security of the
Courtroom oF the integrity of the factfinding proc
feed be held in abeyance pending evidence of an ac
Rtteapt to influence or harm @ witness or juror in
Shtrials. Therefore, though we cannot endorse the
Ghilatera2 action by the United States Marshal, we hold that
(OGis act strip avay the substantial deference due the
district court's subsequent jont that the screening
procedures were warranted
at 34-35. The First Circuit further stated that, “in our
view(,] an appellate court should be hesitant to displace a trial
"Ide at 34.
In the present matter, the Director explained that the
court’s judgment call in such circumstanc
ADLRO’'s identification and sign-in procedure is designed to
advance the substantial government interest of heightening
security for the ADLRO’s hearings and its inner-office area. We
are thus “hesitant to displace [the ADLRO hearing officer]’s
judgment call in [these] circumstances.” Deluca, 137 F.3d at 34.
Similarly, in Williams v, State, 690 N.E.2d 162 (Ind.
1997), the Indiana Supreme Court held that courtroom security
procedures requiring that each person who was unknown to the
officer at the door show identification and sign in did not
amount to “exclusion” of anyone and, thus, did not implicate the
right to public trial.
‘***POR PUBLICATION***
‘The security procedures required that each person who was
luntnown to the officer. show identification and sigh in
Neither requirenent actively excludes anyone. The
identification requirenent introduced « minor procedural
hnurdie to gaining admittance to the trisl by desanding the
production of some form of identification, which is an item
Eeadily available to the genersl. public. ‘mn’ sum, this
Simply is not # case of partial of totel closure of the
Protesdings to the public and so the constitutional right to
B poblic trial is not implicated by the procedures as they
Williams, 690 N.£.2d at 168-69, Although the Hilliams court held
that there was no constitutional violation, the court went on to
require that trial courts make findings in support of security
measures imposed beyond those customarily permitted.
Even where the measure does not ancunt to a violation of the
constitutional Fights of the defendant, when access to
public proceedings is impeded, even slightly, the right to
be free to walk into court and assess our justice eysten in
Operation comes under threat. Any such restriction must be
Imposed only with proper Justification. Accordingly, we
Eequire under our supervisory powers that the court make a
finding thet specifically supports any measures taken beyond
tihat is customarily permitted that are likely to affect
Untettered access by the press and public to the courtroom.
The finding need not be extensive, but must provide the
Fessons for the action taken, and’ show that both the burdens
and benefits of the action have Deen considered. This
exercise of supervisory powers applies to trials conducted
Sifter the publication of this opinion
The trial court in this case failed to provide such 3
record. + The coure made no findings as to why the
procedures wore warranted,
Because the court did not provide the r
decision to authorize the procedures, and bec
Goes not clearly substantiate the need for these additional
Precautions, the trial court’s condoning of use of the
Identification procedures does not mest the standard we
announce today.” As an abstract proposition, this kind of
Procedure seems likely to produce both a slight burden and a
Slight benefit. The taking of names 1s perhaps intimidacing
for sone, but the practice siso is likely to help contral
Gourtroom behaviors Because it alerts spectators that the
court con identity them, it may discourage some who Bight’
otherwise have disrupted the proceeding in the hope of
Fensining anonymous. Accordingly, when considering this
Sort of procedure, 2 court must weigh the prospective
Benefits to the ofder and security of the courtroom with the
burdens to the defendant, the press, and the public.
Id. at 169-70 (footnotes omitted). Consonant with the Williams
rationale, this court temporarily remanded the present matter to
the ADLRO for a hearing on Freitas’s objections to the ADRLO's
10
‘***FOR PUBLICATION***
identification and sign-in procedure, and the hearing officer
entered FOFs and COLs supporting the procedure. Accordingly, the
hearing officer made findings that “specifically support {] any
measures taken beyond what is customarily permitted” in order to
“substantiate the need for these additional precautions{.]”"
In United States v. Brazel, 102 F.3d 1120 (11th Cir.
1997), cert. denied, 522 U.S. 822 (1997), the United states Court
of Appeals for the Eleventh Circuit held that the district
court's requirement that all persons entering the courtroom
provide identification did not violate the defendants’
constitutional rights. “The [s]ixth [a]mendment right to a
public trial is not absolute and must, on occasion, give way to
other rights, and interests.” Brazel, 102 F.3d at 1155 (quoting
Waller v, Georgia, 467 U.S. 39, 45 (1984). “[I]f the
identification procedure can be said to have imposed a closure at
all, it was ‘partial,’ as all persons wishing to enter the
courtroom were allowed to do so provided they identified
themselves as required, and the required identification was not
especially arduous.”
We find no violation of the Constitution. The trial
judge Saplenented the identification procedure bases on her
oun observations for more than s week, confirmed by the
Prosecution, that individuals had bech coming into the
Eourtroon and fixing stares on the witnesses and possibly
Government counsel. The court considered the alternative
Proposed by defendants, but reasonably found it infeasible,
She dia not believe thst, while presiding over the trial,
she could assume the responsibsiity co pick out individuals
the might be trying to influence the witnesses or might
Otherwise pose @ threat to trial participants. Given the
Specific problem that had arisen and the lisited nature of
the rensdy adopted, we see no abuse of discretion in whet
was done.
Brazel, 102 F.3d at 1156.7 See also Bell v, Evatt, 72 F.3d 421,
2 The dissent seeks to distinguieh Deluca, Williams, and Brazel on
tthe basis that they are “cases addressing the sixth anendnent right toe
publie Erigl” and that, “[{]nasmuch as this case concerns s quasi~judicial
(continved.
n
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433 (4th Cir. 1995), cert, denied 518 U.S. 1009 (1996) (holding
that trial court’s prevention of ingress and egress to courtroom
during witness testimony did not violate public-trial right where
“trial judge was merely maintaining order in his courtroom and
ensuring a non-disruptive atmosphere” for participants, press,
and public).
In the present matter, the governmental interest at
stake is the security of ADLRO hearings, which is obviously
unrelated to the hearings’ substantive content. In any event,
Freitas does not argue that the ADLRO hearing officer erred in
applying that portion of the three-part formulation outlined in
Exeitas I. 104 Hawai'i at 489, 92 P.3d at 999.
‘The ADLRO identification and sign-in procedure also
satisfies the third prong of the Freitas I formulation, to wit,
goal of
that there be no less restrictive way to meet the ALDRO’
securing their hearings. See 104 Hawai'i at 489, 92 P.3d at 999.
The Director adduced substantial evidence that the costs
associated with implementing other security procedures ~~ i.e.,
metal detectors, x-ray machines, additional security guards --
-continued)
adninistvative proceeding before the ADLRO, . . . the defendant’s sixth
Amendment right tos public tris) in a criminal prosecution ie not
Smplicated.” Sleseating opiaion at 51-52 (emphases in original]. Meare not
persuaded. As discussed above, the three-faceted formulation for deteraining
hether a limitation on access to a hearing persissibly furthers the
Tegitinate need to maintain "order and dignity” ins public adjudicative
bearing was taken directly from 30 F.2d at
1199. "sae Ereitas I, 204 aval't ot 405, 52 Pio at 999. Broun & Mitlianaon
was cited with approval in Detroit Free Press v Asheroft, 195
Fesupp, 20 937, 945 n.8 (E.0. Mich. 2002), upon whach we expressly relied in
Eieitas I. See Ereitas 1, i0d Hawai'i at d#s~e9, 92 P.34 at 996-99. "Rnd
Betcolt fice Beess, which’ sovoived « quasi-judicial adninistrative deportation
hearing, expressly relied on
His 0.8, 1'ViSe6)7 Sehicn held shat the Tight OF crisinel defenaanes to pubic
lings resides in the Sixth Anendnent’. . - .” Gea Exeitag I, 104
e486, 488, 92 P.3d at 596, 998. Tt is inconceivable to us that
constitutional right to a public hearing in an administrative
driver's license revocstion hearing is broader than a criminal defendant's
Constitutional right toa public trial.
12
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were not fiscally feasible. further to the foregoing, the
hearing officer found that such additional security measures
would not obviate the efficacy of the ADLRO’s current
identification and sign-in procedure in any event. ‘The security
expert, Shimabuku, testified that the ADLRO’s identification
procedure provided “a separate and beneficial deterrent effect”
to any additional security procedures, Freitas’s contention that
“the ADLRO is part of the Judiciary and[) if the Judiciary can
afford to put metal detectors and deputy sheriffs in the courts,
it can certainly afford to put a metal detector and/or a deputy
sheriff in the ADLRO(,]” is both unsupported and unpersuasive.
Although Freitas further postulates that “Lalnything that
discourages pubic participation in the functioning of government
is intolerable if the interests of the government can be achieved
by alternative means,” (emphasis in original), recommendations
contained within the Security Assessment? specifically concluded
that “[aldditional security measures will be costly, create
inconvenience, and increase workload for the receptionist.” The
hearing officer’s conclusion that there is no less restrictive
means of securing ADLRO hearings is supported by substantial
evidence. Consequently, the inquiry into whether the
identification procedure as implemented at ADLRO hearings is the
least restrictive means of achieving the goal of providing
security at hearings has been satisfied.
‘The ADLRO’s identification and sign-in procedure is
reasonably tailored to meet the security needs of ADLRO hearings.
> ‘the Supplemental Record on Appeal contains a written Security
Assessment. prepared by the Department of Public Safety for the ADLIO at the
ADLRO's request, which was received by the ADLRO on May 30, 2001.
13
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Furthermore, the Director satisfied the burden of establishing
the reasonableness of the ADLRO sign-in and identification
procedure. The ADLRO’s procedure in no way, in and of itself,
deprives parties of a public hearing. Therefore, we hold that
the hearing officer's decision upholding the sign-in and
identification procedure at ADLRO hearings is supported by
substantial evidence and that Freitas’s constitutional right to a
public hearing was not impermissibly infringed.
A majority of this court has decided that the sign-in
and identification procedure of the Administrative Driver's
License Revocation Office (ADLRO) was valid. Therefore, we turn
to the merits of Freitas’s appeal.
Ww.
We hold that (1) the administrative hearing procedures
of the ADLRO did not violate Freitas’s due process rights and
(2) the district court did not err in failing to reverse the
hearing officer’s decision which was based on prior rulings of
the district court, which, by their very nature, are unpublished
and have no precedential effect. Based on the foregoing, we
affirm the judgment of the District Court of the First Circuit,
uu
‘*#*FOR PUBLICATION)
Honolulu Division‘ (the court) affirming the decision of the
ADLRO, and thereby sustaining the revocation of Freitas’s
driver’s License.
v.
‘As mentioned in the prior remand, see Ereitas 1, 104
Hawai'i 483, 92 P.3d 993, on January 16, 2002, Freitas was
arrested for driving under the influence of an intoxicating
Liquor (OUI). On January 17, 2002, he was issued a notice of
License revocation for DUI. On January 23, 2002, Frietas’s
driver's license revocation was sustained by @ review officer of
‘the ADLRO. On January 30, 2002, Freitas requested a hearing.
then the hearing began, the hearing officer admitted
into evidence all of the documents that were contained in the
ADLRO case file. The hearing officer denied counsel’s request to
subpoena ADLRO Chief Adjudicator Ronald Sakata to testify about
the identification procedure which required anyone attending an
ADLRO hearing to sign in and produce picture identification. the
hearing officer did not permit @ hearing on this matter.
After raising the above requests, counsel asked the
hearing officer to follow a hearing procedure as set forth ina
written document presented by him.? The hearing officer declined
‘the Honorable Fa‘ auuga Tofeto'o presided over this natte
+ the procedure provided as follows:
‘The arrestee hereby requests that the following
procedure be followed st this hearing becau:
Adzinistrative revocation schene contemplates, that this
procedure will be followed pursuant to (Mawai's Revised
Statutes] #.R.S. § 2918-38]?
1.""the hearing officer receives into evidence
‘only the sworn statements described in H.R.S. § 2915~
36(a) (2) and (2) and competent evidence of any prior
Aleohol contacts (H-R-S- § 2918-38 (g) and (h)):
(continued...)
45
**#FOR PUBLICATION***
—
counsel's offers instead the hearing officer indicated she would
1) allow counsel to raise any issues; 2) start calling witnesses;
then 3) proceed with arguments.
[Counsel]: And if you're not willing to follow that
T wlan to know what procedure is going to be
ing Officer): Well, Lhaven't reviewed the
fate a ine an
‘Shen, i7m going to start calling the witness
Mee aguslly, start with the arresting officer(]
[tyhen Twill proceed £0 hear your argunents after that.
*(..seontinued)
2, _I£ the hearing officer is satisfied that the
three prong test has not been met, the hearing officer
Eescings the revocation and the hearing is over,
Tien.8: $ 2918-38(e) the three prong test is (1)
fessonable suapicion to stop, (2) probable cause to
Believe arrestee DUI, and (3) proof of OUI - (Kernan
SEitew, 1, 30, 856 B.24. 1207, 1222-(1993));
Si xe the heating officer is satisfied that the
three prong test has been met, the bearing officer 20
Hinds and the arrestee is given an opportunity to
Offer evidence to refute any part of the three prong
fest or any prior élcohel contact (Kernan v. Tenska,
SS haw, 1138, 856 P.2d 1207, 1222 (2993177
"d. "12 there 13 any other competent evidence
which has become relevant by virtue of the arrestee!
Uvidence, whether documents in the file, through
Witness, or otherwise, the hearing officer may receive
Buch evidence (H-R.S-8 2918-38(d) (3))7
S. the hearing officer makes findings and
either rescinds of upholds the revocation (H.R.S.
$281-838(d) (6))7
6 Tf the revocation {8 upheld, the hearing
officer makes findings as to any prior alcobel
Contacts and the consequences thereof (H.R.S. $2916~
ao).
Pursuant to H.R.S. § 2516-38(a), the purpose of this hearing
fs Sto Feview the (aduinistrative review) decision,” nok
Conduct s de nave hearing. ‘Thus, the hearing officer has no
power to increase the revocation period set at the
Saninistretive review.
YE the hearing officer is unwilling to follow this
procedure, the hearing officer 1s hereby requested to sti
hat procedure will be followed, which party has the
Bitden of proot, and whether and when the burden of
producing evidence ever shifte in the course of the hearing.
16
***FOR PUBLICATION*#*
[Counsel]: _{W)ho has the burden of proof? Does
burden of producing evidence ever shift inthis case? These
You may proceed, counsel, with you
to examine the officers or
ae well
lot vour (a4
No. haven't had tine to even
(Counsei]: Welt, T ask that you read it. 7 think I'm
required to do that.
{Wearing Officer}: I don’t believe so. I believe the
‘asking now, would you like to examine
‘and put any other issues on the record at
(Smphases added.)
‘The arresting officer, Officer Lorica, then testified
d to him from the
that at the time of Freitas’s arrest, she r
driver's implied consent form entitled, “Administrative
Revocation of Driver's License and Motor Vehicle Registration
Form.” This form referred to HRS chapter 286, Part XIV (Supp.
2000) (repealed effective January 1, 2002, and replaced with HRS
chapter 2918, Part III).
‘The Intoxilyzer operator failed to appear to testify.
As a result, the hearing officer excluded an Intoxilyzer test*
result obtained from Freitas. After the test result was
excluded, counsel objected to the ADLRO asserting jurisdiction,
maintaining that a “valid breath or blood test or refusal is a
jurisdictional requirement for administrative revocation.”
Counsel also argued that the implied consent form the police read
to Freitas referred to Chapter 286, Part XIV, which had been
repealed, and that the Notice of Administrative Revocation failed
‘an intoxilyzer test measures an individual's blood alcohol
concentration by a breath sample. ia8
Hawai 133, 134 1.2, 997 P-2d 95, 60 n-2 (App. 2000)
93
vv
"FOR PUBLICATION:
eee
to explain the distinction between the administrative revocation
and criminal suspension or revocation as required by HRS § 2916-
34(a) (2) (Supp. 2002).
‘The hearing officer sustained the revocation of
Freitas's driver's license pursuant to HRS § 291£-38(e) in
written decision dated March 13, 2002. But, the hearing officer
found that Freitas had not been properly informed “of the
sanctions and consequences of the law as it was in effect on the
day of his arrest{,]” apparently because the implied consent form
referred to a repealed statute. The hearing officer determined
in effect, that the proper remedy was to strike Freitas’s
Intoxilyzer test result. Based on other evidence, the hearing
officer determined that Freitas operated his vehicle while DUI:
1, there existed reasonable suspicion for officer
erica, to For tees tted probable cause Go believe that
[rreicas) operated the vehicle while under the influence of
an intexteant-
3 ex we 0! 2) vee
xeault, she tenaindes of tha record pevertheless reflects be
rat of the evident Fr a
Sabicle while under the influence of en intonicant.
Siteitas's] five (5) year driving record preceding
tthe date of arrest (January 17, 2002) shows no alcohol
cntorcenent contact or drog enforcement contact, as defined
Tnaes 9 2928-1
‘Sy Pursuant to HRS § 2916~41{"), the period of
revocation that may be imposed on (Freitas) is a minimun of
three months up toa maximum period of one year.
7 HRS § 2918-41 states in relevant part,
(b) The periods of adninistrative revocation with respect to
a License and privilege to operate a vehicle, and sotor vehicle
Zegistration if applicable, that shall be imposed under this part
are as follow
(2) A minimum of three months up to 2 maximum of one year
Tevocetion of license and privilege to operate a
Yenicle, if the respondent's record shows no prior
[lcohe! enforcement contact oF drug enforcenent
Contact guring the five years preceding the date the
notice of administrative revocation was Lrsued.
18
‘***FOR PUBLICATION***
‘Therefore, it is the decision of the director, by the
undersigned Hearing Officer, that. (Freitas’s] driver's
License be revoked for a period of thres months, from
February 17, 2002 through and ineluding May 16, 2002.
(Emphasis added.)
The findings in the decision cited to unpublished
district court decisions in other ADLRO cases. Freitas appealed
to the court.
on August 13, 2002, the court affirmed the hearing
officer by a written decision.’ A separate judgment filed on the
same day stated that, “[plursuant to the Decision and Order
Affirming Adninistrative Revocation entered herein on August 13,
2002, Administrative Revocation is affirmed.”
vr.
The identification sign-in procedure aside, on appeal,
Freitas essentially argues that the court erred (1) in impliedly
ruling (a) that the administrative hearing procedure did not deny
Freitas his rights to due process of law under the Fifth and
Fourteenth amendments of the United States Constitution’ and
+ the district court’s August 13, 2002, written decision states:
‘the (pletition for [Judicial [xJeview in this case
ame on for hearing en May 3, 2002. {Counsel}
Sppeared for the Petitioner, who wae fot present.
Respondent did not appear. The (c]ourt considered the
Submissions and arguments of counsel and the records
and {ides herein.
‘The [clourt finde none of the arguments raised by
Counsel sufficient to warrant reversal, and the
[elourt find no reversible ezror In the record.
For these reasons, the Director's decision is
[aftirmed) .
the Fifth amenduent states in relevant part that “Inlo person
shall . . . be deprived of life, liberty, or property,
(Emphasis adée
‘the Fourteenth Amendments
shall . . . depeive any person of life,
es in relevant part that “[nJo state
Liberty or property, without dus
(cont ined,
19
***FOR PUBLICATION***
Article I, § § of the Hawai'i Constitution" or (b) the mandate of
Chapter 291, Part ITZ, and (2) in failing to reverse the hearing
officer for citing to unpublished district court ADLRO decisions
to justify her decision.
vir.
Review of a decision made by a court upon its review
of an adninistrative 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
decision.” Soderiund v. Admin, Dir. of the Courts, 96 Hawai'i
114, 118, 26 P.3d 1214, 1218 (2001) (internal quotation marks,
citations and brackets omitted) (vacating and remanding the
district court’s amended decision affirming the revocation of
notorist’s driver's license for driving under the influence of
alcohol). HRS § 291E-40 (Supp. 2002)" governs judicial review
by the district court of an administrative revocation of a
driver's license by the Director.”
continued)
process of Iau; ner deny to any person within its jurisdiction the equal
protection of the lawe.” (Empaasis added.)
article 2, § § of the Hawai'i Constitution states that “(nlo
Person shall be deprived of life, Liberty or property
Tae “nor be denies the equal protection of the laus, nor be denied the
Seioyent of the person's civil rights or be discriminated against
exercise thereof because of race, religion, sex of ancestry.” (Enph
‘che
S added)
1M HRG § 2918-40 {9 the recoditied version of HRS § 286-260 (1999)
In provision (a), “arrestee” was substituted with “respondent” and “offens
wis substituted with “incident.” Section (a) was added to the new version.
1 HRS § 2918-40 states in relevant part as follows:
Oudicial reviews procedure. (a) If the director
sustains the administrative revocation after an
Adninistrative hearing, the respondent . .. may file =
Petition for judicial review within thirty days after the
Easinistrative nearing decision is mailed. The petition
(continued...)
20
‘***POR PUBLICATION**#*
vir.
On appeal we review findings of fact under the clearly
erroneous standard . Child Support Enforcement Agency v. Roe, 96
Hawai'i 1, 11, 25 P.3d 60, 70 (2001). Findings of fact are
“clearly erroneous when the record lacks substantial evidence to
support the finding.” Id. (quoting In ve Water Use Permit
Applications, 94 Hawai'i 97, 119, 9 P.3d 409, 431 (2000)).
“ ‘Substantial evidence’ is credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion.” Id. (brackets,
internal quotation marks, and citation omitted); see Leslie v.
Estate of Tavares, 91 Hawai'i 394, 399, 984 P.2d 1220, 1225
(1999). Findings of fact are also clearly erroneous when
“despite substantial evidence to support the finding . . . , the
appellate court is left with the definite and firm conviction in
reviewing the entire evidence that a mistake has been made.”
Child support Enforcement Agency, 96 Hawai'i at 11, 25 P.3d at
70. “Hawai'i appellate courts review conclusions of law de novo,
under the right/wrong standard.” Leslie, 91 Hawai'i at 399, 984
P.2d at 1225 (citations omitted).
(continued)
‘shall be fled with the clerk of the district court in the
Gistrict in which the incident occurred and shall be
accompanied by the required filing fee for civil
‘acetone.
{ci ine sole issues before the court shall be whether
the director
(2) Exceeded constitutional or statutory authority:
(2) Erronesusly interpreted the Laws
(3) Acted in an arbitrary or capricious manner;
(2) Conaitted an abuse of discretiony or
(5) Made determination thet was unsupported by the
evidence in the record.
(d) the court shail not renand the matter back to the
director for further proceedings consistent with its order.
2
**#FOR PUBLICATION***
—_—_— se
m%
As mentioned, Freitas asserts that he was deprived of
due process because the clear mandate of HRS chapter 2916 was
violated. His subsidiary points appear to be (1) that the
revocation law, HRS chapter 291£, Part III, does not expressly
set forth a specific procedure to be followed at an
administrative hearing, (2) that in seeming contradiction, “HRS §
2918-38(a) provides [that] . . . the function of the
administrative hearing is to ‘review the (administrative review]
decision,’ but the person arrested for DUI may call witnesses and
offer witnesses,” suggesting it is a de novo hearing, (3) the
plain language of HRS § 291E-37(c} (3) and HRS $ 291E-38(h) does
not authorize receipt of the entire ADLRO file or police report
into evidence, (4) HRS chapter 291E, Part III, requires that
there be a valid chemical test or refusal for the ADLRO to assert
jurisdiction.
‘As to his subsidiary arguments (1) and (2), Freitas
proposed a procedure, which he argued would not offend due
process!” and would reconcile the “apparent conflict” he
perceived between a de novo hearing’ and the hearing officer's
role of administrative review. In Desmond v. Admin, Dir. of the
Courts, 91 Hawai" 212, 219, 982 P.2d 346, 353, (App. 1998)
[nereinafter, Desmond I], rev'd on other arounds, 90 Hawai'i 301,
978 P.2d 739 (1999) (hereinafter, Desmond II], the motorist
gee gupra note 5. Of course, there 18 nothing to p:
hearing officer trom adopting such s procedure or the legislature from
enacting it.
A hearing de noua is defined as follows: “Generally, 2 new
hearing or a hearing fer the second tine, contemplating an entize trial in
Sone manner in which matter Was originally heard and 2 review of previous
hearing, [Generally oln [a] hearing "de flovo’ court hears matter as court of
driginsl end net appellate Juriediction.”” Black's Law Dictionary 649 (Sth ed.
1579)
22
‘***FOR PUBLICATION*#*
proposed a hearing procedure almost identical to the procedure
supported by Freitas in this case." The Intermediate Court of
Appeals (ICR) held, however, that the hearing officer “did not
err in following her procedure rather than the procedure proposed
by [the notorist]” and rejected contentions similar to those
raised by Freitas. Id, It was concluded “that the applicable
law does not require the {hJearing [o]fficer to follow the
procedure proposed by Desmond.” Id. at 218, 982 P.24 at 352. On
certiorari, this court affirmed the ICA, except on a matter not
relevant to this issue. See Desmond II, 90 Hawai'i 301, 978 P.2d
738.
We observe that procedural due process requires that a
person have an “opportunity to be heard at a meaningful time and
in @ meaningful manner." Farmer v, Admin. Dir. of the Courts, 94
Hawas't 232, 238, 11 P.3d 457, 463 (2000). This court has said
that providing @ presuspension revocation hearing “sufficiently
assure(d] reliable results and provide(d] adequate due process.”
Id, at 239, 11 P.3d at 464. Freitas was afforded such a hearing
on March 8, 2002, where witnesses were called and he was
represented by counsel."* The ADLRO program has been examined
aiso
™% the counsel representing Freitas in the present
represented the petitioner in the Desmond case.
uns § 2918-38 sets forth the requirements of the hearing and
states in relevant pare:
(b) the hearing shall be held by the director, as
close to the location where the notice of administrative
Fevocation was issued ss practical,
(c) The respondent may be represented by coun
Af the respondent is under the age of eighteen, mise
‘accompanied by a parent or guardian.
ai
authority 22
Jai" deninister oaths and affirmations:
ToL aninesitnesees tone tastinanee
a EZ s7
23
‘***FOR PUBLICATION***
ee
and found not to violate due process. Kernan, 75 Haw. at 25-32,
256 P.2d at 1219-22; Farmer, 94 Hawai'i at 238, 11 P.3d at 463;
Desmond I, 91 Hawai'i at 220, 982 P.2d at 354. In addition, the
hearing officer advised counsel of the procedure that she was
going to follow consistent with the caution that “[ilt is
advisable that, at the conmencenent of the administrative
hearing, the (hlearing (0) fficer inform the parties what
procedure he or she will follow.” Desmond I, 91 Hawai'i at 219,
982 P.2d at 353, In light of the foregoing, we do not believe
reversible error was conmitted and, thus, decline Freitas’s
invitation to overrule Desmond I.
lie observe, however, as previously noted in the facts,
that the hearing officer's procedure consisted of ascertaining
issues raised by Freitas and then proceeding to the calling of
witnesses starting with the arresting officer. In Desmond I, the
ICA pointed out that in Kernan, 75 Haw. at 30, 856 P.2d at 1222,
this court directed that the grounds for revocation must first be
§(. .seontinved)
“4 Lesue subpoenes:
SL Regulate the course and conduct of the hearina:
aud.
4. Makea tinal ruling
ig) Zhe respondent's prior alcohol and drug
enforcement contacts shall be entered into evidence.
th) The sworn statenente provided in section 2916-36
shall be admitted into evidence, The director shall
Consider the sworn statements in the absence of the Law
enforcement officer or other person. Upon written notice to
the digector, no later than five days prior to the hearing,
that the respondent wishes to examine = law enforcenent
officer of other person who made s sworn statenent, the
Gkfector, the director shall issue @ suppoena for the
officer or other person to appear at the hearing. Personal
Service upon the law enforcenent officer or other person who
made a sworn statenent shall be made no later than forty~
If the officer or
or other person at
(Emphasis added.)
24
*FOR PUBLICATION***
established before the arrestee proceeds with his or her
evidence." 91 Hawai'i at 218, 982 P.2d at 352. Accordingly,
insofar as the hearing officer may have conveyed the suggestion
that Freitas was to “raise [his] issues” at the beginning of the
hearing, it should be made clear that an arrestee cannot be
called on to respond or to “raise any issues” before the initial
burden of proof with respect to revocation is satisfied.
x.
As to Freites’s third argument, HRS $ 2916-37(c) (Supp.
2002) sets forth the matters the administrative officer “shall
consider” in conducting the administrative review. HRS § 291E-
37(c) states in pertinent part that “falny sworn or unsworn
written statement or other written evidence provided by the
respondent [and] . . . [t]he sworn statement of any law
enforcement officer or other person or other evidence or
information required by section 2918-36" shall be considered.
th Desmond 1, the ICA, quoting Kernan, sald:
‘he arrestes doesnot _have to present apy evidence
Dati the reviewing officer determines thar sufficient:
aie to prove that: {I} reasonable
Suspicion existed to stop the vehicle: (2) probable
cause existed to believe the arrestee was driving
under the influence; and (3) by a preponderance of the
evidence, the arrestee did in fact drive under the
Influence. Only after these burdens have Deen met
Goes the arrestee carry any burden of contrary proof.
Kernan establishes that the police have the initial bursen’
‘pinrovina certain {acts before the arrestes bears burden of
Poontrary proof.”
added) .
91 Mawas's at 238, 982 P.2d at 352 (empha
HRS § 2918-36 provics
tn relevant part:
Documents required to be submitted for adninistrative
zeview; sworn statesents. (a) Whenever = respondent has been
arrested for a violation of section 2918-61 and submits to's
fost that establishes: the respondent’ s alcohol
(continued...)
25
**#FOR PUBLICATION***
In Desmond I, the ICA disagreed with contentions similar to those
The ICA stated that “the [hJearing [0] fficer
(a) all unsworn
raised by Freitas.
must exclude from the record only the following:
statements (except the arrest report) of law enforcenent
officials who do not appear to testify; and (b) all other
evidence that is both irrelevant and prejudicial.” 91 Hawai'i at
220, 982 P.2d at 354, The ICA stated that “[a]n agency should
receive all evidence which is competent, relevant and material,
regardless of its weight, and a refusal to hear such evidence can
constitute a denial of due process.” Id.
Freitas has failed to demonstrate how admitting the
entire ADLRO file and police report contravenes the
administrative revocation statute, and violates due process.
cannot agree with his argument regarding an alleged inconsistency
between HRS § 2918-37(c) (3) and HRS § 291E-38(h)." We note that
We
(continued)
‘concentration was .08 or mores the presence, in the
Fesponaent’s blood or urine, of any drug that is capable of
impairing the respondent's ability to operate a vehicle in
careful and prudent manner; or whenever’ a respondent has
been involved in a collision resulting in injury or death
and a blood or urine test performed pursuant to section
25le"21 establishes that the respondent's alcohol
Concentration was .08 oF more establishes the presence in
‘the respondent's blood or urine of any drug thet is capable
Of impairing the respondent's ability to operate a vehicle
in a'eareful and prudent manner,
i the arrest report or the report of
the law enforcenent officer who issued the
notice of administrative revocation to the
person involves in a collision resulting sn
injury oF death and the sworn statement of the
arissting law enforcement officer or the officer
bio issued she notice of adinistrative
revocation, stating factal.l
(emphases added.)
% Freitas argues that HRS § 2918-37(c) (3), pertaining to docusents
that must be forwarded to the administrative director of the courts upon sn
arrest for OUI, is inconsistent with HRS § 2916-38 (n), mandating that sworn
Statements shail be admitted into evidence. We do not perceive any.
(continued...)
26
***FOR PUBLICATION***
admission of the ADLRO file and police report may be barred if
irrelevant or prejudicial. Freitas has not provided any evidence
that the admission of the entire record or the police report was
irrelevant or prejudicial.
Furthermore, although the plain language of the statute
states that an “arrest report” shall be considered, legislative
history fails to provide guidance in defining this term. While
the hearing officer was not required by statute to admit the
police report for her review, we cannot say the hearing officer
reversibly erred when she did so. Freitas does not specify which
items received in evidence, including the police report, were
irrelevant or prejudicial.”
xz.
As to his fourth argument, Freitas contends that
to the “distinction
because he was not properly informed
between an administrative license revocation and a license
suspension in a criminal DUI case . . . as required by H.R.S.
§ 2916-33(a) (2),” he should be entitled to restoration of his
(. .scontinued)
Inconsistency because ERS § 2518-38 does not prohibit the admission of #
police report or the entire ADLAO file. Moreover, the fact that HRS § 291E~
51h) “refers only to sworn statements provided for in HRS § 2916-36 and not
police reports, does not necessarily indicate a legislative intent to prohibit
police reports’ fron adaission into evidence at an adninistrative hearing,
assuming their relevance and non-prejudicial nature. Sea Desmond II, 90
Hawai'i at. 301-02, 978 F.2d at 738-40 (holding that the only evidence
hearing officer sust exclude are (a) unsworn statements and (b) irrelevant end
prejudicial evidence) «
= om » 80 Hawas"s 358, 910 P.24 129 (App. 1995),
Serb. denied, 60 Hawali 351, 306-67, 910 P.2d 128, 137-138 (1996), the
Petitioner similarly “objected to ‘sdnitting ali the documents in the file’
But faillea), ‘on appeal, to identify what items in the ‘file’ were
objectionable.” Ig, A in the present case, the hearing officer received
Into evidence ‘all’ of the docunents contained in the case file and made. the
part of the record. Counsel objected. The ICA affirmed the hearing officer's
Gecision. Tt reasoned that “(HAS § 2926-38 (d)(3)] does not otherwise Limit
the discretion of the Director in determining what evidence is relevant. Id.
at 366, 910 P.2d at 137.
20
‘*#*FOR PUBLICATION:
driving privileges. In this regard, Frietas asserts that “the
legislature did not intend that the police may forego entirely
the reading of the implied consent law so long as they can
provide a sworn statenent showing that the person was under the
Anfluence[,] applying the subjective test of H.R.S. § 291E~
61(a) (1). In this case, the hearing officer refused to adit
the intoxilyzer results. We believe this is an adequate
safeguard in the situation where the police fail to adequately
notify the defendant of the implied consent law.
Wowhere is it indicated that notice of the implied
consent law was intended to act as a jurisdictional prerequisite
to a License revocation hearing. Rather, notice was required to
inform motorists of the consequences of agreeing or refusing to
consent to a DUI test. See State v. Garcia, 96 Hawai'l 200, 208,
29 P.3d 919, 927 (2001) (Nakayama, J. dissenting, joined by
Ramil, J.) (reiterating the exclusionary rule that remedy for
nt rule was exclusion of intoxilyzer
violation of implied con:
test); state v, Wilson, 92 Hawai'i 45, 49, 987 P.2d 268, 272
(1999) (Nakayama, J. dissenting, joined by Ramil, J.) (announcing
exclusionary rule and holding that implied consent law was
intending to protect the rights of the driver “to enable the
driver to knowingly and intelligently consent to or refuse a
chemical alcohol test”).
XII,
Finally, Freitas contends that the district court erred
in failing to reverse the hearing officer’s decision because the
hearing officer cited to unpublished district court ADLRO
decisions. See Kena v. Gaddis, 91 Hawai'i 200, 204 n.4, 982 P.2d
28
***FOR PUBLICATION***
334, 338 n.4 (1999) (clarifying that “decision and orders issued
in unrelated . . . cases that were not reviewed on appeal and
addressed in published decisions have no precedential value”).
Freitas relies on Chun v. Bd. of Trustees of the Employees’ Ret
Sva., 92 Hawai'i 432, 446, 992 P.2d 127, 142 (2000) (citations
omitted) which stated that, “[a]lthough this jurisdiction has yet
expressly to articulate the rule, other jurisdictions have
adopted the position that unpublished decisions of trial courts
have no precedential value.”
In opposition, the State argues that regardless of
whether the court cited to unpublished or published trial court
decisions, “the only time reversal of a lower court decision is
warranted is when the legal result or position adopted by the
lower court is found to be erroneous as a matter of law.” Me
agree with thie proposition. Cf, Roe v. Hawai'i Labor Relations
Bd., 87 Hawai‘ 191, 197, 953 P.2d $69, 575 (1998) (holding that
Af upon review the circuit court's decision is correct, the
circuit's court’s decision “will not be disturbed on the ground
that it gave the wrong reason for its ruling”); Delos Reves v.
Kubovama, 76 Hawai'i 137, 140, 870 P.2d 1281, 1284 (1994)
(holding that appellate court may affirm grant of summary
judgment based on any ground appearing in the record, even if
circuit court did not rely on it).
wing officer's decision, it appears
In reviewing the h
that the hearing officer cited to a nunber of unpublished
district court decisions. However, inasmuch as the hearing
officer's decision did not involve any reversible error, the
court did not reversibly err when it did not reverse the hearing
officer’s decision.
29
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XIII.
For the foregoing reasons, the court's August 13, 2002
judgment affirming the administrative revocation of Freitas’s
driver's license, is affirmed.
on the briets: Gm
Earle A. Partington
for petitioner-appellant. iA te
Girard D. Lau, Pecsecse COT seecteey are
Deputy Attorney General,
State of Hawai'i wae
for respondent appellee.
Une riety
30
‘***FOR PUBLICATION***
DISSENTING OPINION BY ACOBA, J.
I respectfully dissent as to the partial majority
opinion in Part ITI, upholding the ID procedure of the
Administrative Driver‘s License Revocation Office (ADLRO). The
ID procedure constituted an unconstitutional limitation on
Freitas’s right to a public hearing. ‘The partial opinion in Part
III, sanctioning as it does a sign-in procedure at public
hearings, will have a deleterious and potentially inhibiting
effect on the right to attend similar hearings freely and openly
and without needless restriction, but more troubling, it diverts
focus in any particular case from measures actually aimed at
preventing disruptions and ensuring safety. I would hold that
Freitas’s hearing should have been open without the restrictions
imposed by the ADLRO procedure and order that future hearings be
80 conducted subject only to security measures previously
identified by the Department of Public Safety (DPS) that are
appropriate.
First, in my view, the essential supplemental findings
of the ADLRO hearing officer, including the reference to the
budget capabilities of the ADLRO, see infra page 45, are not
‘supported by substantial evidence. In the absence of substantial
evidence, the findings were clearly erroneous and the conclusions
from which they were derived, wrong. Second, assuming arquende
there was substantial evidence, the record gives rise to a
definite and firm conviction that a mistake was made. Third, the
hearing officer did not apply the test adopted in Freitas v
Admin. Dir. of the Courts, State of Hawai'i, 104 Hawai'i 483, 92
P.3d 993 (2004) [hereinafter, Freitas 1], correctly and, thus,
31
***FOR PUBLICATION***
—_—_— sss
committed reversible error in her legal conclusion. On the
grounds set forth herein, a person exercising reasonable caution
would not conclude that the evidence submitted was of sufficient
quality so as to support the conclusion that the ADLRO 1D
procedure prevents disruption of hearings, and is the least
restrictive manner of implementing security. Finally, the cas
relied upon by the majority to uphold the ID procedure concern
the sixth amendment right to a public trial, and, hence, are
distinguishable and inapplicable.
I.
‘This court previously held inter alia, that “because
ADLRO hearings are quasi-judicial administrative hearings, due
process requires that the hearings be public, and. . . Freitas
was entitled to a hearing on his objections to the ADLRO sign-in
and identification procedure limiting public access to his
hearing.” Freitas I, 104 Hawai'i at 483-64, 92 P.3d at 993-94.
‘Thus, on June 16, 2004, this court remanded this case temporarily
to the ADLRO to afford Freitas @ hearing on his objections to the
ID procedure that limited public access to his hearing. Id. at
484, 92 P.3d at 994. The hearing was held on July 14, 2004 at
‘the ADLRO offices. Following remand, the ADLRO submitted
supplemental conclusions of law and an order on the public
hearing issue.
on behalf of the ADLRO, the deputy attorney general
called to witnesses, Lloyd Shimabuku, security consultant to
several Waikiki hotels and special agent with the state
Department of the Attorney General, and Ronald Sakata, Chief
Adjudicator of the ADLRO. Respondent-Appellee Administrative
Director of the Courts, State of Hawai'i (Director) also
32
***FOR PUBLICATION***
submitted tvo articles: “A Situationist Perspective on the
Understanding How Good People are
Psychology of Evi:
Transforned Into Perpetrators,” by Phillip G. Zimbardo and
“Identity and Anonymity: Sone Conceptual Distinctions and Issues
for Research," by Gary T. Marx.
Freitas’s counsel called four witnesses, Dr. Reneau
Charlene Ufford Kennedy, psychologist, Mr. R. Patrick McPherson,
attorney, Ms. Lois Perrin, Director of the American Civil
Laberties Union, Hawai"i, and Mr. Michael Nakamura, retired chief
of the Honolulu Police Department.
The Record on Appeal also contains a written security
assessment prepared by the Department of Public Safety (DPS) for
the ADLRO entitled, “Security Assessment, The Judiciary,
Administrative Driver's License Revocation Office, 3875 South
King Street” (the Security Assessment) .
mr.
Pertinent here, Freitas contends in his supplemental
brief that (1) “the hearing officer ignored all evidence contrary
to her preconceived determination to uphold the ADLRO sign-in
procedure”! and (2) the hearing officer’s findings of fact are
clearly erroneous and her conclusions of law are contrary to
established law. To these contentions Appellee essentially
responds that the supplemental findings and conclusions are not
contrary to the evidence or the 1aw.?
1 Freitas maintaing that the hearing officer ignored all contrary
evidence because Sakata, the hearing officer's supervisor, implemented the
Security neasure now under scrutiny. Finding no. 10, gupta, confirms that
Sakata implemented the ID procedure.
2 the Director argues that all of the hearing officer's findings
conclusions are valid and that this court must not review credibility of
(cont inved,
3
‘***FOR PUBLICATION***
Any restriction on the right to a public hearing must
comport with the three-part test adopted in Freitas I:
[t}hat the regulation serve an important governmental
Interests that thia interest be unrelated to the content of
the information to be disclosed in the proceeding; and thet
there be no less restrictive may to meet that goal,
104 Hawai'i at 489, 92 P.3d at 999 (quoting Brown & Williamson
Tobacco Corp, v, Fed, Trade Comm'n, 710 F.2d 1165, 1179 (6th Cir.
1983) (citing United States v. O'Brien, 391 U.S. 367, 377
(1968))) (emphasis omitted). Because Freitas asserts a
constitutional violation, in applying the three-part test, we are
free to exercise our own “independent constitutional judgment
. ka
based on the facts of the case.”
Use Comm'n, 94 Hawai'i 31, 41, 7 P.3d 1068, 1078 (2000) (internal
quotation marks, brackets, and citations omitted).
Vv.
‘The hearing officer made twenty-five supplemental
findings and four supplemental conclusions. On appeal we review
findings of fact under the clearly erroneous standard. Child
Support Enforcement Agency v. Roe, 96 Hawai'i 1, 11, 25 P.3d 60,
70 (2001) (quoting Gump v, Wal-Mart Stores, Inc., 93 Hawai'i 417,
420, 5 P.3d 407, 410 (2000)). Findings of fact are “clearly
continued)
witnesses or weight of evidence
597 P24 13, 27 (2000). Assuming its rel
complete abrogation of an appellate court’
Dased on witness testimony.
citing State v. Jenking, 93 Hawai'i 87, 102,
130; ankLus does not represent a
ight to review findings of fact,
[verdicts based on conflicting evidence will not be set
aside where there 1s substantial evidence to support the
trier of fact's findings. We have defined "substantial
evidence" as "exedible evidence which is of sufficient
quality and probative value to enable a (person) of
Feasonable caution to support # conclusion.”
Ad, at 102-02, 997 P.24 at 26-27 (internal citations omitted)
34
‘***FOR PUBLICATION***
erroneous when the record lacks substantial evidence to support
the finding.” Id, (quoting In re Water Use Permit Applications,
94 Hawai"i 97, 119, 9 P.3d 409, 431 (2000)). ‘Substantial
evidence’ is credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion.” Id. (brackets, internal quotation marks,
and citation omitted); see Leslie v. Tavares, 91 Hawai'i 394,
399, 984 P.2d 1220, 1225 (1999). Findings of fact are also
clearly erroneous when “despite substantial evidence to support
the finding . . . , the appellate court is left with the definite
and firm conviction in reviewing the entire evidence that a
mistake has been made.” Child Support Enforcement Agency, 96
Hawai'i at 11, 25 P.3d at 70. See Lanai Co. v. Land Use Comm'n,
105 Hawai'i 296, 314, 97 P.3d 372, 390 (2004) (observing a
“definite and firm conviction” that the Land Use Commission “made
a ‘mistake’ in its enforcement of an order). “Hawai'i appellate
courts review conclusions of law de novo, under the right/wrong
standard.” Leslie, 91 Hawai'i at 399, 984 P.2d at 1225
(citations omitted) .
ve
Preliminary, it must be noted that in a letter
regarding ADLRO security renovations, the ADLRO detailed prior
security incidents over the “history of the program."? The
+ the Letter Lists the following incident:
- one arrestee lunging at hearing officer during
hearing(s)
- One Iife time revocation individual writing, calling
‘J viaiting ADLRO with a series of threatening
Ietters to ADLRO staff and fanilyt)
= [lhree bonb threats, to resulting in police
investigation, one made on the record at hearing[?]
- [Bullet Roles shot through strest front windows on
(Continued...)
35,
‘+**POR PUBLICATION®#*
—_—_SSSSSSSSSSSSSSSSSSsSSssseses
letter also states that ADLRO is concerned that “persons whose
Licenses have been or are in jeopardy of being revoked, in
particular when we do start having drug related cases, will
becone unmanageable and/or violent.”
‘he Security Assessment was specifically prepared by
the DPS for the ADLRO. It precisely addresses the matters of
security at ADLRO meetings. In this docunent the DPS conducted
fan examination of the ADLRO premises at the ADLRO’s request.‘
The objective was to determine measures necessary to protect the
health and safety of the employees and community:
in an effort to mest Public Safety's goals of ensuring the
health and safety of exploy
ss
a i.
See *ihe recommendations contained in this report are
For the
ruse in
(emphases added.) Significantly, the Security Assessment does
not identify the anonymity of members of the public which the
sign-in procedure is designed to counteract as a threat to
security. Indeed, a perusal of the Security Assessment reveals
that DPS did not recommend the current sign-in procedure at all.
--continued)
‘Evo occasions (undetermined if 2 direct result of
ADLAO activities) (3)
= [Whumerous instances of persons at front desk or on
the phone with irate and aggressive behavior shown{/]
= [Sleverai Instances of cbvicusly intoxicated persons
at front desk and/or attending hearings!
= One arrestee entering the ADLAO office with a plastic
Grocery bag filled with tools (pick axe, hammer and
Sther unidentifiable objects) on one of several visits
SO'ADLRO. ADLAO requested that sheriff(s) be on site
af ADLRO'during the scheduled hearing.
‘for example, the Security Assessment identified the hearing roons
fas “critical ares.”
‘The critical areas are the Hearing Rooms where Referees meet
ath clieste and their attorneys. The Referees are
Unprotected should elients become angry or violent. The
e1BSee° doors present a serious problen with ensuring the
‘and attorneys health and safety.
36
***FOR PUBLICATION***
The Security Assessment was prepared by the DPS after
interviewing ADLRO employees and surveying the ADLRO building,
hearing rooms, and office and, hence, is substantial evidence of
ADLRO security problems and remedies. Yet the hearing officer
did not reference the Security Assessment in her supplemental
findings.
vi.
‘The pertinent supplemental findings are as follows:
3. The ADLRO instituted thie ID procedure as a
security measure to prevent unknown menbers of the general
Public fron entering the inner-office area.
4." ind 10 procedure provides a reascoable neana of
Adentfv4na" and aberehendiog thoee’persens who aghe engage
Gecunlawtul or Theppropriate behavior at an administrative
hearing of within the saner-office ares. (Emphasis added.)
.. The 10 procedure for those
persons seeking entry past the front desk/reception counter,
Eneluding those persone who wish to attend hearings «
Tn) This deterrent effect arises out of the fact ‘that
exsons uo know that theic identity has been recorded wil)
‘Gsgbinoriste Genarior for the simple reason that they know
They can be heid accountable.
3. Although the 1D procedure 15 not
security measure,
RDLAO's security’ me
Io." Mr. Sakata, as Chief Adjudicator of the ADLRO,
instituted this TD procedure
i! ‘aitictes . . . provide further support for this
finding, ‘because these afticles support the principle that
anonymity makes people more likely to engage in aggressive,
evil, destructive, or unlawful behavior...
13. “This Wearing Officer finds that these two
14, Mr, Partington also elicited testimony from
former police chief Michael Naksnurs that the ID procedure
would have littie benefit to security. This Hearing Officer
inde that this testimony was not particularly persuasive
‘Light of the testinony of not _only the ADLRO Chief
‘Adiudlcator Ronald Sakata, Put the testimony of security
Elowd shia Tekan
‘***FOR PUBLICATION #*
fect...
TS. With respect to attorney R. PatFick McPherson’ s
testinony .". . in which McPherson acknowledges thet no
state court, ‘trial or appellate level, requires one to show
identification and signein in order to attend « court,
proceeding, this Searing Officer finds this testimony
Snrelated to the ADLRO's unique circumstances in which,
unlike the court buildings, the area to which counsel,
Fespondent, and/or other sambers of the public are
Fequesting access, includes undifferentiated access to the
hearing room as well as other areas of the ADLAO
office.
26.".".". (t]he ADLRO does not have separate public
and nonspublic' access area. this distinguishing factor is
Efieiealand saterial in determining whether the ADLRO' = ID
procedure is warranted
I), This Hearing Officer finds that other security
measures - including a metal detector, x-ray machine and
Conveyor belt, a hand metal-detecting wand, and someone to
Operate these devices, or posting sheriffs or security
Guards. (armed or unarmed) in or near the hearing room ~
fuss
18." In addition, metal detectors, x-ray machines and
hand netal-detecting wends would do nothing to stop a person
Entent on accosting ADLAO staff or hearing attendees by
hand, army leg oF foot, nor would such devices. prevent
Someone fron causing s\ vocal” or verbal disturbance to the
Scninistrative proceeding. The 1D procedure, on the other
hand, could possibly deter such Inappropriate behavior,
20. “th addition, his Hearing Officer finds that even
welty measures wlege a
etal detector, x-ray conveyor belt, end hand wand, oF a
Security guard ~"the 10 procedure would provide an
additional security benefit in the form of deterrence
faiticuar fom of deterrence ~ based upon depriving a
erson of hia or her anonumity = other than to have the
Hilda's tp oroceaure in effect. —Althouah security cameras:
ado tenove sone level of anommity, they still leave a
22. “This Hearing Officer finds that there is no 1
intrusive way to provice the unique deterrent effect crested
by the ADLAO 10 procedure than to maintain the ID procedure.
‘eauitina che showing ofa picture 1p and sfanins aa it is,
23. This hearing officer finds that although the ID
procedure is not perfect = e.g.,
ip bad behavior
Te renaine a useful and
Eeagonable security measure for the ADLAO. And the
Procedure is a very easy and simple process for =
Brospective attendee to Beet, A driver's iicense, state
TD. or other acceptable picture identification 1s 211 that
is necessary. -; + Indeed, a driver's License, state .D.,
of other sccoptable picture identification, 1s something
38
‘***FOR PUBLICATION##*
people need for all sorts of everyday activities, including
for example: check cashing, banking, and air travel.
24, This hearing officer finds that although the 10
procedure may deprive a person of his or her anonymity ~
Tndees that 1s precisely why the 1D procedure has an
effective deterrent effect ~ that is
nificant inte sattending the hear
‘eent furthermore,
= except in the
Svent someone on that Iist engeges in unlowful activity or
creates a disturbanc
(Emphases added.) On the grounds set forth herein, the relevant
supplemental findings are not supported by substantial evidence.
‘The said findings are considered in sexiatim.
1. Finding no. 3 states that “[t]he ADLRO instituted
this ID procedure as_a security measure . . . .” The record
shows that the ID procedure was introduced by Sakata, based on
his “common sense, experience” that the ID procedure would have a
deterrent effect.’ However, as mentioned, the ID procedure is
not identified or recommended by the Security Assessment, supra.
Additionally, at the time the ID procedure was instituted, Sakata
did not even know of the social science articles that were
subsequently introduced at the remand hearing to justify the
Procedure, and as he conceded, the articles had nothing to do
with his decision to institute the procedure.‘ Consequently, the
+ RDLRO chief Adjudicator Ronald Sakata testified:
(Deputy Attorney General): So, in your opinion,
basically renoving a person's anonymity acts as 4 natural
deterrent to wrongful or inappropriate conduct?
Sekata:” I Believe 20, yes:
[Deptuty Attorney General}
view on?
Sakata: Mel, common sense, experience.
And what do you base this
(Baphasis added.)
* the relevant testimony reads
2 for Freitas (Counsel)]: Mr. Sakata, when did
these paychology articles?
Within the last couple of weeks
(continved,
39
‘***FOR PUBLICATION***
SSeS
articles not only lack a credible basis for the purpose of the
hearing, sce discussion infra; they are completely irrelevant to
the ADLRO’s decision to implement the ID procedure.
2. Finding no. § states that “[t]he ID procedure
provides a reasonable means of identifving and apprehending those
persons who might engage in unlawful or inappropriate behavior
ts that the ID
"(Emphasis added.) Finding no, 23 reps
procedure is useful, reasonable, easy and simple.
However, the reasonableness of the procedure is a
question of law, and insofar as it relates to a fact, is not
supported by substantial evidence. Appellee’s own security
expert, Shimabuku, agreed that without training personnel to
recognize “fake” photo ID's, the ID procedure is “relatively
useless.” Sakata testified that ADLRO staff is not trained to
“(.-seontinved)
(Counsel): the 2 4 aa
Sa) Toe
(emphases added.)
tified as follow
Director's security expert Shimabuku t
{Counsel}: (DJoes it matter if the staff of this
office or anywhere the sign in procedure 1s trained to look
for fake ID's? Would that be an important consideration?
‘Shinabukur Yes, T would think so.
[counsel]: And if somebody cones in with
1D, then the identification and eign in requir
Esther mesningless, isn’t it?
‘Shimabuks
to ses ire ou
(Emphasis added.)
Sekata testified that the staff had no training in recognizing
(Counsell: Now what training is oiven to vour stat
it
yout Io
Teentinved.-.)
‘***FOR PUBLICATION***
recognize false ID's, and Chief Nakamura testified that such ID's
are “relatively easy” to obtain in Hawai'i.
3. Findings nos. 6, 7, 8 14, and 18 state that the ID
procedure acts as a deterrent. The assertion is presumably
supported by the two articles and the testimony of Sakata and
Shimabuku. However, this determination is not supported by the
articles submitted by Appellees. In light of the ADLRO letter,
the testimony of Chief Nakamura, and the Security Assessment, the
testimony of Sakata and Shimabuku as discussed, did not
constitute substantial evidence to support these findings.
‘a. Although the hearing officer relies heavily upon
the two articles, neither article can be accepted as credible
evidence. In his article, Marx states unequivocally that he
focuses on concepts, not actual behavior.' The author also
admits, with respect to Section B,? that he is simply reporting
justifications for concealment and revelation, not endorsing
these justifications.” As Marx himself will not endorse the
Freitas's security expert, retired Chief Nekamura testified as
(Counsel): {Jow hard 1s it to get a fake
identification here in Hawait?
Yakanure: Tt's relatively easy based on current
technology with computers.
* the relevant statement in Marx's article states
Im this article T layout sone of the conceptual landscape
‘and sone research issues. This enphasis is on the cultural
Jevel .. . more than on describing actual behavior.
(Emphasis added.)
+ Finding 12, infra, quotes exclusively from Section 8
| ection B, “Socially Sanctioned Contexts of Concealment and
Revelation” is composed of Part 1, Rationales in Support of (Full or Partial)
(cont inved.
41
‘***FOR PUBLICATION®**
—_—__
validity of the “claimed empirical consequences,” little credence
can be attributed to any findings of fact resting upon this
article.
zimbardo’s article similarly does not constitute
credible evidence relevant to security measures at ADLRO
hearings. This article does not concern security measures at
public hearings but rather, “generic forms of institutional evil,
such as poverty, prejudice or destruction of the environment by
corporate greed.” It therefore is not meaningfully relevant to
the question of public hearing security measures." Further, the
article is seemingly driven by an overt political view, and
cannot be accorded the status of unbiased scientific or social-
(.. .continved)
Anonymity and Part 2, Rationales in Support of identifiability. Footnote 4,
in the Introduction to Section B, states as follows:
1 make these observations as @ social observer and not as 2
noralist arvagpiticiat (in the sense of subjecting clains to sone
kind of empirical standare), [araue neither that chess
nee iat ner
Dacessacily follas. To have a pony in those races require:
Enalyeta beyond the scope of this paper. Here, 1
claimed iustifications at face value and report then.
(Emphases added.)
& Relevant statenents in Zimbardo's article include:
‘This behaviorally-focused definition [of evil] makes an
agent of agency responsible « +” Te excludes «the
Beetder, generic forms of inatitutionel evil, such
poverty; prejudice, or destruction of the environnent by
Egents of corporate greed. Dut it does include corporate
Esponsibility for marketing snd selling products with knows
Giaeare-cavaing, death-dealing properties, such as cigarette
Ronufsecurers, or other drug dealers. It/also extends.
re or la fed at zi
Eitieeoitslie meee ro rere Gdbamn
(emphasis added.)
42
‘***FOR PUBLICATION***
scientific reports for the purpose of this case." Findings 12
and 13, based on these articles, are similarly unsupported by the
record.
b. Appellee’s contention that the anonymity of members
of the public poses a threat to ADLRO hearings is also
unsupported by the ADLRO’s letter, supra. In that letter listing
prior and anticipated incidents, the ADLRO identified threats to
the physical safety of ADLRO employees. Any threat posed because
of the anonymity of members of the public is absent.
c. The testimony of Chief Nakamura likewise does not
support a finding of deterrence. While this court usually
disinelines review of a hearing officer’s findings based on oral
testimony, finding no. 14 appears to mischaracterize the
testinony of Chief Nakamura, In that finding, the hearing
officer stated that “Mr. Nakamura conceded that the ID procedure
could have some deterrent effect. . . .” (Emphasis added.) To
the contrary, Chief Nakamura’s testimony was that the procedure
was “close to” “useless.” The relevant testimony reads as
follows:
(Deputy Attorney General): Chief Nakamura, you were
saying that signing requirements, sign in and identification
showing requirement would have Little mpact upon security,
fare you Saying that this requirenents has no impact on
Security and is absolutely useless?
Nakamura: “It's not absolutely useless, close to it
[ocputy ‘Attorney General): But it could have some
impact?
Nakamura: If I had to rate that with every option
available, .
% For example, the article states that [t]he ‘war on terrorisn’ can
never be won solely by current administration plans to find and destroy
Cerroriats . . "7 "{m)iiitary commanders. - such ae Hitler, Stalin, Mao,
Pol Pot, Idi Amin, and others who history has identified as tyrants for their
complicity in the deaths of untold millions of innocent people. divstory will
= ‘in March, 2002, with dubious
Justification, that resulted in widespread death, injury destruction and
enduring chaos." (Emphasis added.)
43
*#*FOR PUBLICATION*#*
_
(emphases added.) Chief Nakamura’s testimony does not support 4
finding that he conceded the ID procedure has a deterrent effect.
Although the hearing officer decided, in finding no. 14, that
Chief Nekamura’s “testimony was not particularly persuasive,” it
would appear evident that the testimony of the former police
chief of Honolulu should have been accorded substantial weight in
the areas of public disruption, violent acts, and security in
public places based on his training, expertise, and experience
and in the absence of any finding that his testimony should be
disregarded in this respect.
d. As mentioned previously, the hearing officer did
not reference the Security Assessment in her supplemental
findings. But, the assessment is substantial evidence of ADLRO
security problens and remedies. Again, a perusal of the Security
Assessment reveals that DPS nade specific recommendations, none
of which included the current sign-in procedure.
In sum, the documentary evidence and oral testimony in
the record do not support a substantial connection between
disruption and deterrence of threats and the current ID
procedure. Although Appellee argues the 1D procedure may
facilitate locating an individual after the fact, ADLRO staff are
not trained to recognize fake Ib's, see supra note 7: hence,
there is no evidence that the ID procedure advances even this
Limited goal.
4. Finding no. 9 states that the ID procedure is “a
fundanental first-step in the ADLRO’s security measures.” There
is no substantial evidence in the record to support @ finding
that the ID procedure is either “fundamental” or a “first-step”
in appropriate security measures. On the other hand, the
Security Assessment precisely enumerates the measures necessary
‘***FOR PUBLICATION:
to insure security and thus is substantial evidence of the
“fundamental” and necessary “steps” required.
5. Findings nos. 15 and 16 discuss the unique
circumstances of the ADLRO building. But these findings, unlike
the Security Assessment, are not tailored to the specific safety
requirements of the facility: hence, these findings are not
supported by substantial evidence.
6. Finding no, 17 indicates that other security
measures, “including a metal detector, x-ray machine and conveyor
belt, a hand metal~detecting wand, and someone to operate these
devices or posting sheriffs or security guards (armed or unarmed)
in or near the hearing room - would be expensive and beyond the
budget capabilities of the ADLRO. . . .” Contrary to the partial
majority opinion in Part ITZ, majority opinion at 12-13, other
than Sakata’s bare testimony, nothing was submitted in the record
to support this finding. Moreover, the relevant inguiry on
remand was the application of the Freitas I test, supra.”
Additionally, the record indicates that the ADLRO has, on
occasion, requested and been afforded deputy sheriffs to provide
security, as occurred at this renand hearing.
7. Finding no. 20 states that “[t]here is no other
less intrusive way to achieve this particular form of deterrence
~_based upon depriving 2 person of his or her anonymity - other
than to have the ADLRO’s procedure in effect. Although security
cameras . . . do remove some level of anonymity, they still leave
@ person the chance of remaining unidentified. . . .” (Emphases
© the nearing officer disnissed these other measures as “expensive
land beyond the budget capabilities of the ADLRO.” Such fiscal concerns,
however, are an irrelevant consideration in the Eraitas I test, where the
Teoue 12 whether the government's regulation 1s the least restrictive m
achieving its ssserted goal.
2 of
43
#*#F0R PUBLICATION*
oe
added.) Finding no. 22 essentially restates finding 20.
Findings 20 and 22 must be rejected for two reasons.
First, they state a conclusion of law that the ID procedure is
the least intrusive means. Even if construed as a fact, these
findings are controverted by the recommendations in the Security
Assessment, which are substantial evidence of the means for
ensuring security at ADLAO hearings.
Second, the findings erroneously limit potential
security measures to those that require the public to sign-in and
produce a picture 10, The governmental interest at stake is the
security at agency hearing. Limiting this interest to security
that is based on deprivation of anonymity leads to the
syllogistic conclusion that only deprivation of anonymity can
secure against the threat of anonymity.
It should also be noted that in footnote 6 to finding
22, the hearing officer states that “IDs are required for entry
to circuit court chambers.” The relevant inquiry concerns the
right of public access to a public hearing. Court chambers are
not the equivalent of public hearing rooms. Therefore,
procedures for court chanbers entry do not constitute relevant or
substantial evidence and the reference thus is clearly erroneous.
8. Finding no. 24 states that the intrusion posed by
the ID procedure is insignificant because “a person attending the
hearing would have {his)' face seen by hearing participants in any
event.” Whether an intrusion is insignificant is a question of
law and should not be couched as a finding. In addition, it
would appear plain that being required to sign one’s name on a
roster maintained by a state agency and to produce a picture ID
is not equivalent to merely having one’s face seen by
participants at an ADLRO hearing. Relatedly, the assertion that
46
‘+**FOR PUBLICATION***
ee
the sign-in list is not distributed does not accurately reflect
the record. According to Sakata’s testimony, the sign-in list
remains on the office counter all day and its subsequent custody
is apparently entirely subject to Sakata’s discretion.
‘Thus, the record lacks substantial evidence to support
findings that the current ID procedure (1) advances the
governmental interest of safety at the hearings, (2) deters
security threats at ADLRO hearings, and (3) is the least
restrictive means of achieving security at ADLRO hearings.
vir.
Aside from the erroneous findings, the hearing officer
incorrectly applied the Freitas I test. Thus, her conclusions
were wrong. ‘The four conclusions state:
1. Te 10 procedure
interest: namely, Z
iat ADLAG administrative hearings.
Siang IS interest, . + is unrelated to the content of
‘the information to be disclosed in the administrative
preceeaing.
3. inere is no less restrictive way to fully serve
tenis daportant. governmental interest in enhancing security
and aveiding diaruptions at ADLAO adninistrative hearings
and incoffice area, other than to continue with the 1D
procedure. for measures can aad to security as
fell, shexe is no other less intrusive aeans of achieving
Berson of bis or ber anonymity. The ADLAO ID procedure is
Rittidost introsive means of achieving this unique deterrent
effect.
rrvea_an important governmental
Pe
‘The ADLRO TD procedure ie therefore fully
warranted, and does not inpernissibly interfere with a
Tespondent’s Fight to public hearing.
(Emphases added.) Inasmuch as the test in Freitas I answers a
constitutional question of law, the hearing officer's application
of the test must be reviewed de novo, under the right/wrong
standard. See Bank of Hawaii v, Kunimoto, 91 Hawai'i 372, 387,
984 P.2d 1198, 1213 (1999).
a
FOR PUBLICATION***
viit.
Logically, the first step in the Freitas I analysis is
to identify the ADLRO’s “important governmental interest.” 104
Hawai'i at 489, 92 P.3d at 999, In its letter, see supra, the
ADLRO noted its concern that “persons whose licenses have been or
are in jeopardy of being revoked . . . will become unmanageable
and/or violent.” The hearing officer accepted this concern in
conclusion no. 1 by identifying “enhancing security and avoiding
disruptions at ADLRO administrative hearings” as the “important
governmental interest” to be served by the ID procedure.
‘This would appear to satisfy the first element of the
Ereitas I scrutiny, see v. Mayfield
738 N.E.2d 42, 48 (Ohio Ct. App. 2000) (determining that
“security at venues that attract a large number of people in a
congested area at the same time” is “an important government
interest”); Klein v. Leis, 795 N.E.2d 633, 640 (ohio 2003)
(concluding that “{e]nsuring public safety is an important
government interest”); In re Rules Adoption, 576 A.2d 274, 281
(1.3. 1990) (holding that “institutional security” at a prison is
an “important government interest”), and Freitas does not dispute
‘that the ADLRO's concern constitutes a valid interest.
m
Under Freitas I, the next inquiry applicable to this
case" is determining whether the ID procedure constitutes the
least “restrictive way to” “enhanc[e] security and avoid{]
M_atthough Freitas argues that “the record ute.
[the] conclusions [of law,]” he does not argue that the
An applying the second Exoitag factor concerning the content of the
information to be disclosed in the proceeding. Therefore, the hearing
officer's ment of that factor need not be addressed
‘+**FOR PUBLICATION®#*
interruptions at ADLRO administrative hearings.” 104 Hawai'i at
489, 92 P.3d at 999. As there is no substantial evidence that
the ID procedure advances the governmental interest at stake,
concluding that this procedure is the least restrictive means of
achieving that interest is also untenable. For the reasons set
forth previously, the findings do not support a conclusion based
upon substantial evidence that the 10 procedure in any way
rings.
enhances security or prevents disruptions at ADLRO hi
Instead, the record indicates that because ADLRO staff are not
trained to recognize false ID's, the current ID procedure
provides no deterrent. Even if the staff were trained,
substantial evidence did not exist to support a finding that the
Ip procedure would in fact reduce security threats.
At this point, the hearing officer's analysis, as
exhibited in conclusion no. 3, blurred the first and third prongs
of the Freitas I test. Essentially, the hearing officer confused
the “important governmental interest” with the least “restrictive
way to meet” that interest. To reiterate, in conclusion no. 3,
the hearing officer determined
[there is no less restrictive way to fully serve this
Inportant governmental interest ip enhancing security and
ve aeive and
D
Gheoffice area, other than to continue with the
Procedure, Although other measures can add to security as
weil, ns of
the tniaue deterrent effect that arises out of depriving a
etaon-of his or her anonymity. The ADSO 1D procedure 12
‘Ehg-least intrusive means of achieving this unique deterrent
effect
(Emphases added.) This analysis is flawed for two reasons.
syTAbtD*2,a,nole: the findings, do enything but address, the crucial
Ascue. they state that the 1D procedure “is g reasonable means" and “provides
a'detercent,”" {finding 5) “Lessanls) the likelihood” and “gay discourage,”
Teinding 13) “could potentially deter,” (finding 16) and would “provide an
‘measure of detersence,” (finding 21)- (Emphases added.) But they
Sornot establish that the 10 procedure is the “reasonable
ean” or “deterrent,” or that such 2 policy is the Jaast restrictive way to
“discourage” and “deter” disruptive behavior at hearings
49
‘4**FOR PUBLICATION®:
Ba
First, the “unique deterrent effect that arises out of depriving
a person of his or her anonymity” is not the “important
governmental interest” that was asserted by the ADLRO and
identified in conclusion no. 1. In asking whether there is no
less restrictive means to meet the goal, the hearing officer
wrongly redefined the governmental interest as whether “(t}here
is no other less intrusive means of achieving the unique
deterrent effect that arises out of depriving a person of his or
her_anonymity.” (Emphasis added.) The governmental interest at
stake is the security of the agency hearing, not the most
efficacious way of depriving @ person of his or her anonymity.
Second, this “unique deterrent effect” constitutes the
means of achieving the ADLRO’s interest in enhanced security and
in minimizing disruptions at hearings, not the interest itself.
t
The conclusion that “(t]he ADLRO ID procedure is the 1
intrusive means of achieving this unique deterrent effect” of
“depriving @ person of his or her anonymity” is factually true.
Requiring persons to present proper and valid identification no
doubt stripe them of their anonymity. But this is not the issue
to be decided.
‘The proper inquiry is whether the ID procedure, i.e,
depriving persons of their anonymity, is the least “restrictive
way to” “enhanc[e] security and avoid{} disruptions at ADLRO
administrative hearings.” The governmental interest at stake is
rings. As indicated before, equating
the security at agency h
this interest to the deprivation of anonymity leads to the
syllogistic conclusion that only deprivation of anonymity can
secure against the threat of anonymity and results in the hearing
officer’s wrong conclusion.
50
‘#**FOR PUBLICATION
Based on the reasons enumerated before, the 1D
procedure was not shown to be the least restrictive means of
meeting the governmental interest in “enhancing security and
avoiding disruptions.” On the other hand, credible evidence in
the form of the Security Assessment set forth security measures
previously calculated to the specific situation of the ADLRO.
Appellees introduced no credible evidence balancing the
alternatives set forth in the assessment as required under the
Exeitas I test. The hearing officer thus erred in her
application of the Freitas I test.
To support its holding that “the ADLRO’s identification
and sign-in procedure does not impermissibly infringe upon
Freitas’s constitutional right to a public hearing(,]” majority
opinion at 8 (enphasis added), the majority relies upon cases
addressing the sixth amendment right to a public trial, se
majority opinion at 9-12. In our prior opinion remanding the
case to the ADLRO, however, we distinguished between the sixth
amendment right to a public trial and the right to a public
hearing asserted by Freitas. See Freitas I, 104 Hawaii at 496
n.7, 92 P.3d at 996 n.7 (distinguishing State v. Ortiz, 91 Hawaii
181, 981 P.2d 1127 (1999), because it involved “a criminal
Proceeding subject to the right to a public trial afforded by the
[s]ixth [a}mendnent and [a]rt. VII § 14 of the Hawaii state
Constitution and this case-is an administrative proceeding”).
Inasmuch as this case concerns a quasi-judicial administrative
Proceeding before the ADLRO, Freitas I, 104 Hawai'i at 489, 92
P.3d at 999, and “due process requires that [such] hearings be
public,” id., the defendant's endment right to
51
‘***FOR PUBLICATION***
ee
trial in a criminal prosecution is not implicated. To intimate
otherwise, as the partial majority opinion in Part III does, see
majority opinion at 11-12, note 2, would obscure the “automatic
reversal” rule under the sixth amendment applied in criminal
cases, and the balancing test we had adopted in Freitas I to be
applied where the due process clause pertains.'*
Nonetheless, the majority cites to United States v.
Deluca, 137 F.3d 24 (1st Cir. 1998), a sixth amendment right to a
public trial case, for the proposition that this court should be
“hesitant to displace the ADLRO hearing officer's judgment call
in these circumstances.” Majority opinion at 9 (quoting Deluca,
137 F.3d at 34) (brackets omitted). In Deluca, the First Circuit
afforded the trial court “substantial deference” in its
“assessment that the screening procedures were warranted,”
observing that such “difficult judgments are matters of courtroom
1 of the climate
governance which require a sensitive apprai
surrounding a trial and a prediction as to the potential security
or publicity problems that may arise during the proceedings.” 137
F.3d at 34 (internal quotation marks and citation omitted).
Assuming, arguendo, the applicability of Deluca, it
should be enphasized that the screening procedure used in that
case “was reasonably designed to respond,” id. at 35, to the
concerns specific to the defendants who “either were directly
associated with prior efforts to obstruct fair fact (-] finding
“ty the event that the sixth anendnent right to a public trial was
denied, then such denial would be “considered a ‘structural defect affecting
the framework within which che trial proceeds, ‘rather than simply an erzor in
the trial process itself," State v. Ortiz, 91 Hawai't at 193, 981 24 at,
Tio" (quoting Arizona v. Fulminanta, 499 0-5. 279, 310, 211 8.ce. 1246 (1991))
dnd the cove wedd be “subject o-tautonatic reversal,‘ 1d. (quoting Neder
imiekdstatea’ 527 Ors. rvs Lis's. cts 162), 1633 (1999/1. Thus, ansotar a=
Ehismatterte not a criminal prosecution, the Sixth Anendnent and Article Z,
Section If of the Hawai Constitution do not apply and Freitas Sa not
Guaranteed « Sixth Anendnent public trial in this particular adainistrative
fearing.
52
‘***POR PUBLICATION*#*
through untruthful trial testimony, or were found to possess the
present means as well as ample inducement . . . to sponsor
similar efforts in the case,” id. In contrast here, the ID
procedure was not shown to be “reasonably designed to respond” to
a specific security threat at ADLRO hearings. As stated
previously, the Security Assessment prepared by DPS for the ADLRO
hearings did not recommend the sign-in procedure and there was no
evidence to support the conclusion that the ID procedure would
prevent disruptions at the hearings. Thus, the hearing officer
is not entitled to the same level of “judgment call” deference
afforded the trial judge in Deluca.
The majority cites to a second right to a public trial
case, Williams v. Indiana, 690 N.E.2d 162 (Ind. 1997), and
asserts that our prior renand for a hearing was “{clonsonant with
the Williams rationale(.J” Majority opinion at 10. williams
requires a court to “provide the reasons for its decision to
authorize the procedures” and to create 2 record “clearly
substantiat [ing] the need for these additional precautions.” 690
N.E.2d at 170. As previously discussed, however, the hearing
officer's findings do not “substantiate the need for,” id. at
170, the ID procedure. Moreover, Williams requires a weighing of
“the prospective benefits to the order and security of the
courtroom with the burdens to the defendant, the press, and the
public.” Id, The hearing officer apparently found in finding
no. 17 that the “budget capabilities of the ADLRO” outweighed the
burdens of the ADLRO’s sign-in and identification procedure. 1
cannot accept, as the majority does, this “fiscal feasib(ility)”
justification, majority opinion at 13, for the implementation of
an ID procedure that, according to the record, including
testimony by Chief Nakamura, is unlikely to yield worthwhile
53
‘***FOR PUBLICATION*#*
security benefits at the ADLRO hearings.
The majority also cites to United States v. Brazel, 102
F.3d 1220 (11th Cir, 1997). But 1ike Deluca, the sign-in
procedure in Brazel was upheld based on the trial judge’s “own
observations for more than a week . . . that individuals had been
coming into the courtroom and fixing stares on the witnesses and
possibly government counsel.” Id, at 1156. Thus, the court
itself had observed a threat that jurors or witnesses might be
improperly influenced. Id, at 1155. No such evidence of a
similar threat was apparent at the ADLRO hearings and, therefore,
I cannot agree with the majority’s assessment that the sign-in
procedure is “reasonably tailored to meet the security needs of
ADLRO hearings.” Majority opinion at 13.
Noreover, the defendants in Brazel “objected that the
identification procedure could have a chilling effect on the
public, because sone people might fear that if they identified
themselves (by name, address, and birth date), a computer check
night be run and they might be suspected of being @ part of the
drug conspiracy.” Id, at 1156. Thus, it was logical that an
identification requirenent would dissuade those with criminal
histories, the very ones likely to be improperly influencing the
jurors and witnesses, from entering the courtroom and interfering
with the court proceeding. ‘The sign-in procedure utilized at the
ADLRO hearings is not supported by similar logic, but stems from
a sweeping conclusion that depriving a person of his or her
anonynity will minimize disruptions at the ADLRO hearings
Whereas the sign-in procedure in Brazel was justified
by the overt instances of intimidation observed by the judge
herself and designed to exclude the sources of the intimidation,
the sign-in procedure here is not similarly justified. Rather,
54
‘***FOR PUBLICATION*#*
it is based upon an amorphous threat to security at the ADLRO
hearings and may exclude not just the sources of a supposed
disruption, but individuals who, as stated in our prior opinion
in this case, are entitled access to quasi-judicial proceedings
in order to ensure that “the liberty and property of the citizen
shall be protected by the rudimentary requirements of fair play”
and to maintain “public confidence in the value and soundness of
this important governmental process.” Freitas I, 104 Hawaii at
489, 92 P.3d at 999.
Finally, it should be noted that DeLuca and Braze!
involved case-specific approaches aimed at threats unique to the
immediate proceeding before the trial judges. Therefore, these
cases cannot serve as authority for the ADLRO’s permanent across-
the-board sign-in procedure.
xr.
Under the evidence produced at the remand hearing,
Freitas’s revocation hearing should have been free of the
identification and sign-in procedure. I would order that future
ADLRO hearings be open to the public without the requirement of
ID and sign-in restrictions and that recommendations of the ops
I
as are appropriate be implemented.
55
|
64c3860d-e606-4cbe-bbc1-21a8ca8bfcaf | State v. Fields | hawaii | Hawaii Supreme Court | No. 25455
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Respondent~Appellee
oats
REGINALD FIELDS, Petitioner-Appellant
[nS :olhY 9~ inf sioe
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 02-1-0083)
BANTIN aR)
(By: Wakayama, J., for the court!)
Petitioner-Appellant’s Application for Writ of
certiorari filed on June 30, 2005, is hereby granted.
DATED: Honolulu, Hawai'i, July 6, 2005.
FOR THE COUR’
Pease CON cuales On
Associate Justice
Karen T. Nakasone, Deputy
Public Defender,
for petitioner-appellant
Reginald Fields
'court: Moon, C.J.» Levinson, Nakayama, Acoba, and Duffy, JJ.
|
72a9b26c-e021-4595-9ae6-3ca38005cb49 | Ramos v. Loo | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27350
IN THE SUPREME COURT OF THE STATE OF HAWAI'T,;
WY) €2 Nr soge
LUIS RAMOS, Petitioner-Plaintift
So:9
RHONDA I.L. 100, REINETTE W. COOPER AND RETIRED
JUDGE ERIC ROMANCHAK ACTING AS HAWAI'I, STATE DISTRICT
COURT JUDGES, LUIS OSCAR RAMOS, JR., et al.,
Respondent s-Defendants
—_—SSSSSSSSSSSSssssesesesese
ORIGINAL PROCEEDING
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the Writ of Habeas Corpus Stay of
District Court Pre-Trial Hearing June 13, 2005 Issue for
Settlement and Notice filed by Luis Ramos, it appears tha
(2) Ramos submitted a writ of habeas corpus and a $5.00 check?
(2) on June 1, 2005, the supreme court clerk's office informed
Ramos that the filing fee for the writ is $125.00 and that
mit the filing fee or a motion to proceed in forma
failure to
pauperis by June 15, 2005 may result in dismissal; (3) Ramos did
not submit the required filing fee or a motion to proceed in
forma pauperis; and (4) Ramos fails to show he is entitled to a
writ of habeas corpus. Therefore,
I 18 HEREBY ORDERED that the writ of habeas corpus
submitted by Luis Ramos is denied.
qa
IT 1S FURTHER ORDERED that the clerk shall serve a copy
of this order on Ramos and return the $5.00 check submitted with
the writ.
DATED: Honolulu, Hawai'i, June 23, 2005.
Luis Ramos,
petitioner-plaintiff, Ginn
pro se, on the writ
ART no
Reeetee 21. reeset pn
ew
Gorn & Dudtigs O°
|
74f5b812-bf29-4c32-a7aa-e9e80c5c4781 | Anderson v. Douglas | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION
No. 25144
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
—SSSSSSSSSSSSSSeSess
KELLY ANDERSON and VERONICA FARRELL, Petitioners-Appellees
KEITH DOUGLAS, Respondent-Appellant
ee
APPEAL FROM THE DISTRICT COURT OF THE SECOND crRevIT =
(CIV. NO. 28802-34(W))
‘SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Respondent-appellant Keith Douglas (Douglas) appeals
from the May 1, 2002 order of the district court of the second
circuit, the Honorable Geronimo Valdriz, Jr. presiding, granting
a petition for injunction against harassment (the petition) filed
against Douglas by petitioners-appeilees Kelly Anderson and
Veronica Farrell [hereinafter, “petitioners”)
on appeal, Douglas argues that: (1) the district court
lacked jurisdiction to enter the May 1, 2002 order because
service of process was not in accordance with law; and (2) the
district court erred in entering the May 1, 2002 order by
default, inasmuch as (a) Douglas became entitled to an
evidentiary hearing on the petition after he submitted an
affidavit denying the petition’s allegations, and (b) counsel for
Douglas was present at the hearing on the petition.
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)
while the order from which Douglas appeals expired on October 1,
2002, the instant appeal is not moot in light of the order's
‘*** NOT FOR PUBLICATION ***
adverse “collateral consequences” to Douglas's professional
standing and reputation, see, e.g., Inze Doe, 61 Hawai'i 91, 99,
912 P.2d 588, 596 (App. 1996) In xe Surrick, 338 F.3d 224, 230
(3d Cir. 2003); Dailey v. Vought Aircraft Co., 141 F.3d 224, 228
(Sth Cir. 1998); Wright, Miller & Cooper, Federal Practice and
Procedure: Jurisdiction 2d § 3533.3, at 291-293 (1984); and (2)
the order is void because (a) service of process, which was not
preceded by a court order authorizing out-of-state service, was
defective, see Hawai‘l Revised Statutes (HRS) § 604-7(c) (1993)
and HRS § 634-24 (1993), and (b) consequently, the district court
lacked personal jurisdiction over Douglas. See, e.c., Romero ve
Star Markets, Ltd., 82 Hawai'i 405, 413, 922 P.2d 1018, 1026
(app. 1996); In re Lease Cancellation of Smith, 68 Haw. 466, 471,
719 P.2d 397, 401 (1986). Therefore,
IT IS HEREBY ORDERED that the order from which the
appeal is taken is vacated.
DATED: Honolulu, Hawai'i, June 8, 2005.
on the briefs:
Janes P. Brumbaugh and Gi ?
Brian R. Jenkins of
Brumbaugh & Jenkins
for the respondent- LeeriBitomse—
appellant Keith Douglas
Lloyd A. Poelman and
Sanford J. Langa of
Poelman & Langa
for the petitioners
appellees Kelly Anderson
and Veronica Farrell Bonen Badtyr he
|
064b8d7e-ed3c-44d6-b068-949bb5790dcf | State v. Kauai | hawaii | Hawaii Supreme Court | Lawu
No. 25450
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
ee
STATE OF HAWAI'I, Respondent-Plaintiff-Appellee
DINO KALEOLANT KAUAT, Petitioner-Defendant-Appellant
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CR. NO. O1-1-2179)
(By: Nakayana, J., for the court")
Petitioner-Defendant-Appellant’s application for writ
of certiorari filed on June 13, 2005, is hereby denied.
DATED: Honolulu, Hawai'i, June 23, 2005.
FOR THE COURT:
Bt Cnty
Associate Justice
David Glenn Bettencourt
for petitioner-defendant-
appellant on the writ
£5: Wi
‘considered by: Moon, C.J. Wevingon, Nakayama, Acoba, and Duffy, JJ.
|
ef9b90b1-c028-4b62-b169-68ec6e2064b6 | Emoto v. Nonaka | hawaii | Hawaii Supreme Court | re HARTY
No. 27102
‘a Sua
LAURENCE E. EMOTO, Plaintiff-Appellee
gas
20:2 hs oF
DOUGLAS T. NONAKA, CPA, Defendant~Appellant
and
JOHN AND JANE DOES 1-10; DOE CORPORATIONS,
PARTNERSHIPS AND ENTITIES 1-10, Defendants
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 01-1-2888)
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
pon consideration of Defendant-Appellant Douglas T.
Nonaka’ notice of withdrawal of appeal and the records and files
herein,
17 16 HEREBY ORDERED that the withdrawal {8 approved,
and this appeal is dismissed pursuant to HRAP Rule 42(b). The
parties shall bear their own appellate costa and fees.
DATED: Honolulu, Hawai'i, June 30, 2005.
Lane Y, Takahashi aa
for defendant appellant
on the withdrawal
|
1ff38198-7960-43cf-a332-83c6645badfd | State v. Johnson | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION *
No. 26908
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
RODERICK JOHNSON, Defendant-Appellant
APPEAL FROM THE FIRST CIRCUIT COURT
(S.P. NO. 04-1-0167)
‘ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
On March 31, 2005, this court ordered Appellant
Roderick Johnson, pro se, to either file the statement of
Jurisdiction and opening brief in the above entitled matter or an
appropriate dismissal of the appeal within 30 days from the date
of the order. Appellant having failed to comply and it appearing
that the statement of jurisdiction and opening brief are in
default,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai‘i, June 8, 2005.
qr .
Ble Rodannsem
Pi Ones one
Saas
Yoon 6. Deion Or
nwt
|
50fd1c04-25c5-4600-a4c6-68156f7c60b3 | Horner v. Employees' Retirement System, State of Hawaii | hawaii | Hawaii Supreme Court | LAW UBRARY
‘***NOT FOR PUBLICATION #*
No. 26594
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
THOMAS M. HORNER, Appellant-Appellant
EMPLOYEES’ RETIREMENT SYSTEM, 2
STATE OF HAWAI'I, Appellee-Appellee — E|>
12 ir sou
aaa
APPEAL FROM THE FIRST CIRCUIT COURT
(crv. NO. 03-1-2311)
(Supp. 2003) .*
+ the Honorable Eden Elizabeth Hifo presided.
2 HRS § 88-77(a) was repealed in 1998 and replaced with HRS $ 86-
79(a). 1996 Haw. Seas. L. Act 151 § 13. “The current provision, BRS § 28-
7S(al, 4s identical in ali relevant respects." HRS § 86°79(a) (Supp. 2003).
ks §'98-77(a] is the applicable statue for the Joly 2, 1990 incisent that is
the fubject of this appeal. HRS § 68-77 (a) provided:
(a) pon application of a member, or the person
appointed by the family court as guardian of an
incapacitated member, any menber who has been permanently
incapacitated a5 the natural and proxisate result of an
accident csourring whtie an the actual performance of cuty
at sone definite time and place, of as the cumulative result
of Sone occupational hazara, through no wilful negligence on
the menber's part, may be retired by the board of erustees
(continued...)
‘**NOT FOR PUBLICATION***
a
Beginning in 1981, Appellant was employed by the Child
Support Enforcement Agency (CSEA) as an investigator. In that
Job, Appellant's duties included “locating non-custodial parents
who owed child support, and interpreting federal regulations
regarding child support collection." Appellant testified that
his job was “consistently stressful," partly because his office
was "perpetually understaffed" and his job responsibilities kept
increasing over the years.
From 1984 or 1985 until 1990, Alan Zach (Zach) wes
Appellant's supervisor. During this tine, Appellant expressed
frustration at Zach for being an ineffectual supervisor and at
many of his other colleagues for their poor work ethic. Another
significant source of stress for Appellant was a pending lewsuit
against him for gender discrimination brought by a female
*(.,-eontinued)
Tor service-connected total disability provided thet:
Ti” En the case of an accident Sccurring after July
i) 963, "the employer shall file with the board
a'copy of the employer's report of the accident
Submitted to the director of Lebor and
industrial relations:
(2) Rn application for retizenent is filed with the
Board within two years of the Gate of the
Seeident, or the date upon which workers’
ASepensation benefits cease, whichever is later:
(3) Gertification is made by the head of the agency
Gnunich the mesber is employed, stating the
tine, place and conditions of the service
performed by the meaber resulting in the
Resber's disability and that the disability was
ot the result of willful negligence on the part
bf the menter; and
(4) The medical boord certifies that the menber is
Tneapscitated for the further performance of
Guty and that the sember’s incapacity is likely
to be permanent,
(emphasis added.)
‘**NOT FOR PUBLICATION®#*
‘employee. Despite these matters, Appellant was promoted to
Investigative Supervisor in 1989. This position required that he
supervise no more than twenty people.
In early 1990, a second female employee filed suit
against zach for sexual assault and against Appellant for failing
to provide @ safe work environment. Appellant was eventually
dismissed from this suit. However, Zach was placed on probation
and left CSEA to work at the Medicaid Fraud Unit of the Attorney
General's Office.
During his absence, Paul Clifford (Clifford) replaced
Zach as Appellant's supervisor. Appellant enjoyed working with
cligtord who, according to Appellant, was a more effective and
efficient supervisor. However, Clifford soon thereafter retired
and Appellant replaced him as acting Branch Supervisor until
zach's return.
Between 1989 and 1990, Appellant was the subject of two
separate lawsuits and an investigation for the distribution of
illegal cable television descranblers. In June 1990, Appellant
was further distressed by the return of Albert Itsudani, a
supposed “problem employee" with whom Appellant had a history of
interpersonal conflict. Also in June 1990, Zach exercised his
civil service return rights to CSEA. Appellant was notified of
zach’s return and prior to his return date Zach visited with
Appellant at CSEA.
‘*¢NOT FOR PUBLICATION***
on July 2, 1990, Zach returned to CSEA, replacing
Appellant as branch supervisor. On that day, Appellant arrived
at work at 6:00 a.m., his usual time, booted up the computers,
checked the paper supply, and made coffee. At about 7:00 a.m,
Appellant was in his office with the door slightly ajar when Zach
arrived. He knocked on Appellant’s door, walked in, "bid him
good morning, winked, and said, "We are going to have a meeting
this morning.” Appellant testified at his ERS hearing that his
reaction was as follows:
And when £ heard those words, it just brought back
everything that had happened when he was there with all
these neotings, We would al get together everything would
be discusses, “shat are we going to do,” and nothing ever
(get done, And 1 think thet was the most frustrating part
Because if it was going to get done, I had to do st
‘Knd so. that day, when he opened that door and made the
knock and said, "Good morning, Tom," gave me that Look in
Rie eyes "ee. afe going to nave a meeting” ~ it all came
apart, { coulan't hold ie together anymore
Appellant testified that he felt "at a complete loss"
after his brief interaction with Zach. He became disoriented
and did not know what was happening. Appellant's wife picked
him up and he never returned to his position after that day. He
was officially terminated on October 31, 1991.
on October 28, 1998, the hearing officer for the ERS
Medical Board found that although Appellant was permanently
incapacitated as a result of 2 “panic disorder and depression,”
Appellant's application should be denied. The Medical Board's
recommendation to the ERS Board of Trustees (ERS Board) to deny
Appellant’s application was based on its determination that
Appellant’s incapacity was not naturally and proximately caused
‘s#eNoT FOR PUBLICATION***
ee
by an “accident” “at some definite time and place” as is
required by ERS § 88-79(a).?
on January 12, 2003, the ERS Board issued its Proposed
Decision accepting the hearing officer’s Recommended Decision.
‘he relevant findings of fact by the ERS Board are as follows:
(5) thmediately following his encounter with Mr
zach, Appellant "felt overwhelmed by feelings of
fearfuiness, difficulties in concentrating, and felt that
he could no longer work." (The "Injury")
{e)'Worester, prior to the Injury, Appellant suffered
from a ‘complexity of life-long personality, emotional, and
health iecuee, ("Pre-Injury Afflictions").
(3) Furthermore, immediately pricr to the Injury,
appellant was the target of 2 criminal investigation that
[Reolved the purchase and sale of illegal cable television
Gcscrasblers, "and he was a witness to at least one criminal
[neestigation and another civil lawsuit between coworkers.
18) Work-related atreaucrs as an Investigator IV,
coupled with an ongoing criminal investigation targeted at
Appellant, the criminal investigation involving Appellant
tea witness, and appellant's role as a witness ine
Separate eriisinal investigation and civil lawsuit,
Skacerbated Appellant’ s Pre-injury Affiictions.
‘The relevant conclusions of law by the ERS Board are as follows:
(2) Appellant’# Injury was not the natural and
proximate result of an accident occurring while in the
Performance of actual duty at sone definite tine and place.
4} Inerefore, Appellant is not entitled to service:
connected disability retirenent benefits pursuant to HRS
e679.
on January 31, 2003, Appellant timely filed exceptions
to the Proposed Decision. On October 13, 2003, the ERS Board
issued its Final Decision affirming its Proposed Decision
denying Appellant's claim. The ERS Board affirmed the hearing
officer's report on the grounds that Appellant's injury was not
2 The ERS Board refers to HRS § #6-79(a) in its findings of fact and
conclusions of lan, however, the applicable statute for the July 2, 1990
Gneident ie HAS § S6-77(a). See supza note 2. HRS § 88-77(a) was Zepealed in
1958 and replaced with HRS § €8-79(a). 1998 itaw. Sess. L, Act 151 § 13.
5
‘senor FOR PUBLICATION
the natural and proximate result of an "accident" as defined as
an unexpected event or unforeseen [sic] occurrence."
on November 19, 2003, Appellant filed an appeal to the
court. On Nay, 12, 2004, the court heard oral arguments, and on
May 21, 2004, affirmed the ERS Board's decision and entered
judgment in favor of Appellee. On May 27, 2004, Appellant filed
a notice of appeal to this court.
On appeal, Appellant contends that (1) the court erred
as a matter of law when it affirmed the ERS Board's Finel
Decision which affirmed and adopted the hearing officer's
Recommended Decision of December 2, 2002; (2) the court erred in
affirming the ERS Board's and hearing officer's conclusion that
“appellant’s injury was not the natural and proximate result of
an accident occurring while in the performance of duty at some
definite time and place"; (3) the court, ERS Board, and hearing
officer erred as a matter of law in reaching “1” and "2" above
inasmuch as (a) the Recommended Decision was based on a
misreading of Lopez v. Bd. of Trustees, 66 Ha. 127, 657 P.2d
1040 (1983), because Lopez contains nothing to support a
distinction between a “triggering event” and “injury” in
determining whether an “accident” occurred, (b) the Recommended
Decision ascribed a theory of causation by cumulative pressures
of employment to Appellant that Appellant never advocated,
(c) existing Hawai'i decisions support Appellant’s contention
that he suffered an “accident” within the meaning of HRS chapter
‘*#*NOT FOR PUBLICATION***
88, and (d) as a matter of policy, adoption of Appellee’s
definition of an “accident” will lead to absurd and unintended
results.
Assuming, arauendo, that the July 2, 1990 incident was
an “accident,” Appellee argues that Appellant's injury was not
proximately caused by the “accident.” The issue of whether the
July 2, 1990 incident constitutes an “accident” under HRS § 88-
71(a) need not be decided because there is substantial evidence
supporting the ERS Board’s decision that Appellant’s injury is
not the “natural and proximate result” of the incident.
According to Hawai'i Administrative Rules § 6-22-2,
the words “natural and proximate result” are defined as “the
result that would naturally follow from the accident, unbroken
by any independent cause.” “{i]hether the accident . . . was
the proximate cause of (Appellant’s] incapacitation involves a
factual determination.” Myers v. Bd. of Trustees of smplovees’
Ret. Sve., 68 Haw. 94, 97, 704 P.2d 902, 904 (1985). If a
finding was made by the agency that Appellant's incapacity was
not the proximate cause of an accident, then this court must
“make 2 legal conclusion that that finding was clearly erroneous
in order to overturn it.” Jd. at 97, 704 P.2d at 905. Hence,
the ERS Board’s decision on the question of proximate cause is a
question of fact that this court will review under the “clearly
‘#eNoT FOR PUBLICATION***
erroneous” standard as governed by HRS § 91-14(g).* Ids
A finding of fact is clearly erroneous when (1) the
record lacks substantial evidence to support the finding, or
(2) despite substantial evidence in support of the finding, the
appellate court is left with the definite and firm conviction
that a mistake has been made. Feliciano v. Bd. of Trustees of
Employees’ Ret, Svs., 4 Haw. App. 26, 31, 659 P.24 77, 81
(1983). This court has defined “substantial evidence” as
“credible evidence of sufficient quantity and probative value to
justify a reasonable person in reaching a conclusion that
supports a finding of fact.” Sui . rustes
Emplovees’ Bet, Svs., 74 Haw. 161, 194, 840 P.2d 367, 373
(1992). There is substantial evidence that supports the ERS
Board's finding that Appellant’s current incapacity was not “the
result that vould naturally follow from” the event of July 2,
1990.
«aps § s1-14(g) (1983) provides:
Upon review of the record the court may affirm the
decision of the agency or renand the case with instructions
for further proceesings; or it may reverse or modify the
Gecision and order if the substantial rights of the
fs may have been prejudiced because of the
‘singings, conclusions, decisions, or orders
(2) Im violation of constitutional or statutory
provisions
(2) Texceaa ofthe statutory authority or
a)
(4) Refected by other error of law? or
(S) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
recora: oF
(6) Arbitrary, or capricious, or characterized by
abuse of Giscretion or clearly onwarranced
exeresse of discretion.
‘eenor FOR PUBLICATION***
br. Kwong Yen Lum, who conducted an independent
evaluation of Appellant on behalf of the State Workers’
Compensation Division in 1991, stated that Appellant “d[id] not
appear to have had a diagnosable pre-existing psychiatric
impairment prior to July 2, 1990.” This indicates that the
event of July 2, 1990 was significant in the psychological
incapacitation of Appellant. However, the same report
identifies four other sources of stress that caused Appellant’ s
“depression, anxiety, (and] headaches.” One wi
the “settled
[sex discrimination} lawsuit from thr
yeara ago,” another wa
from being a “witness in a (second) lawsuit” (the sexual
harassment sult involving Zach), a third source was from the
“probable return of [a] former problem employee to the
division,” and last was the “feeling of helplessness, [and
inability] to accomplish goals set by (the) managenent/federal
government.” Some of the work difficulties involved “the actual
work itself, and the increasing demands of [Appellant's] job
with [an] inadequate number of personnel.” These uncontested
sources of stress support Appellee’s argument that “although
(Appellant's) symptoms became visible on July 2, 1990," Zach's
return and Appellant’s resulting panic attack was not the “sole”
cause of Appellant's injury.
Furthermore, Appellant’s medical reports indicate that
personal problens that predated and antedated his July 2, 1990
incident contributed to his condition. Dr. George Bussey c
‘+#eNOT FOR PUBLICATION***
ee
conducted an independent evaluation of Appellant on behalf of the
State Workers’ Compensation Division. He noted in his 1992
evaluation that “if it were not for this ongoing criminal
procedure and its recent resolution, [Appellant] would not be in
need of acute psychiatric or psychological intervention at this
time," and further observed that “his underlying difficulties
with alcohol, as well as his pr
xisting personality disorder
tment.” Dr.
might in and of themselves necessitate ongoing tr
Bussey opined that “these treatment interventions are not
related to the alleged incident of July 2, 1990.” This
evaluation supports the ERS Board's findings that Appellant’s
psychological incapacity did not “naturally follow" from the
July 2, 1990 incident, “unbroken by any independent cause.”
Appellant’s treating psychologist, Dr. Joseph Rogers,
also expressly stated in his August 1990 evaluation that
“ [Appellant] described several sources of stress at work as
being cumulative in nature and increasing over the last three to
four years." Dr. Rogers described the events of July 2, 1990 as
“the last straw in a cumulative series of events that had been
building up for years[.]” Dr. Rogers’ evaluation in 1997
further noted that “causation from a medical probability
perspective is that (Appellant's) current disability and much of
his impairment are related to work issues” and that “{hlis
[criminal] indictment and extracurricular legal problems became
added difficulty(.1"
10
‘**NOT FOR PUBLICATION*##
Dr. Robert Marvit’s evaluation in 1998 also stated
that “it is my opinion, with reasonable medical probability that
[Appeliant’s) impairment is. . . a result of his mental
state . . . {which} was generated by the cumulative and specific
stressors on hie job.” The evaluations of Dr. Rogers, Dr.
Bussey, and Dr. Marvit, coupled with Appellant's own testimony,
support the ERS Board’s finding that the incident of July 2,
1990 and ensuing incapacity was caused by cumulative pressures
from his personal and professional life. Taking into account
all the evidence, it cannot be said, as a matter of law, that
the ERS Board's findings were clearly erroneous. The ERS
Board's findings of fact and conclusions of law are supported by
“credible evidence of sufficient quantity and probative value to
justify s reasonable person in reaching (its) conclusion."
Sifacsloa, 74 Haw. at 194, 840 P.2d at 373. Inasmuch as there
4s substantial evidence that the July 2, 1990 incident was not
the proximate cause of Appellant's resulting condition, the
question of whether another cause independently led to his
condition need not be considered. Therefore,
In accordance with Hawai'i Rules of Appellate
Procedure Rule 35, and 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,
n
‘**NOT FOR PUBLICATION®#*
IT IS HEREBY ORDERED that the court’s Judgment filed
on May 21, 2004, from which the appeal is taken, is affirmed.
DATED: Honolulu, Hawai'i, July 21,/ 2005.
on the briefs:
Lowell K.Y. Chun-Hoon
(King, Nakamura & Chin-Hoon)
for Appellant-Appellant.
Pes eobraeeele
Deirdre Marie-Iha, Deputy
Attorneys General, for
12
|
5530465b-473a-484a-85d4-d724cd3bc27c | Waialae v. Graulty | hawaii | Hawaii Supreme Court | No. 27245
> war sooz
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
het
TOKEPA WAIALAE, Petitioner-Defendant
JUDGE REYNALDO D. GRAULTY, Family Circuit Court Judge
of the Family Court of the First Circuit, Respondent
ORIGINAL PROCEEDING
(EC-CR NO. 05-1-1016)
DeNyn RW
(By: Moon, €.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of Petitioner Iokepa Waialae’s
application for a writ of mandamus seeking modification of the
terms of release pending appeal, the papers in support, and the
(1) Petitioner is
s thal
records and files herein, it app
seeking review of a court order related to Petitioner's rel
pending appeal from a judgment of conviction; (2) a writ of
mandamus is an extraordinary renedy that will not issue unless
the petitioner demonstrates clear and indisputable right to
relief and a lack of alternative means to redress the alleged
wrong or obtain the requested action, State v. Hamili, @7 Hawai"
102, 104, 982 P.2d 390, 392 (1998); (3) such writs are not
intended to take the place of normal appellate procedures; and
(4) Petitioner has a pending appeal from the judgment of
conviction, and any request for relief must be filed in the
pending appeal pursuant to HRAP Rule 9(b). Therefore,
ass
IT 18 HEREBY ORDERED that the application for a writ of
mandamus 1s denied without prejudice to any remedy Petitioner may
have in his pending appeal.
DATED: Honolulu, Hawai'i, June 9, 2005.
Karen T. Nekasone,
Deputy Public Defender,
for petitioner-defendant
on the writ
|
77e030d5-d74c-4885-ad84-3e93ca68b8b4 | Kekahuna v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 25648
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
1 Rd $2 ns
aau4
ie
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 01-1-1247)
ORDER DENYING APPLICATION FOR WRIT OF CERTIORARI
(By: Moon, C.J., for the majority,
Dissent by Acoba, J., in which Duffy, J., joins)
Petitioner-appellant Alan 8. X. Kekahuna’s application for
writ of certiorari, filed July 15, 2005, is denied.
DATED: Honolulu, Hawai'i, July 25, 2005.
Glenn D. choy, for FOR THE MAXX
petitioner-appellant,
on the writ Sour
fet Justice
I respectfully dissent from the denial of certiorari. Based
on my dissent in State v, Rivera, 106 Hawai'i 146, 102 P.34 1044
(2004), would grant certiorari and vacate the circuit court’s
sentence.
$e
nm. bebtan
Considered by: Noon, C.J., Levinson and Wakayama, Jd.
Dissent by
Acoba, Jo, in whieh Duffy, Jey Jotn
|
499de65b-c907-4f25-9e45-dba8e4b75f81 | Cho v. Hawaii Nissan | hawaii | Hawaii Supreme Court | *** NOTFOR PUBLICATION ***
No. 25920
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
YON KI CHO, individually and on behalf of all
others similarly situated, Plaintiff-Appellee,
HAWAII NISSAN, INC., dba NEW CITY NISSAN,
Defendant~Appellant,
and
DOE DEFENDANTS 1-50, Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 02-1-1658)
HEI Ra L1H soe
qaqs
(By: Moon, C.J., Levinson, Nakayama, and Duffy JJ., and
Circuit Judge Cardoza, in place of ‘Acoba, J., recused)
Defendant~appellant Hawaii Nissan, Inc. (Hawaii Nissan)
appeals from the first circuit court’s June 12, 2003 order
denying Hawaii Nissan’s motion to compel arbitration and/or for
Hawaii Nissan presents 2 single point of
stay of proceedings.
error: that the circuit court erred in concluding that the
clains brought by plaintiff-appellee Yun Ki Cho, individually and
on behalf of all other similarly situated, are not covered by an
arbitration clause contained in the credit sale contract between
Cho and Hawaii Nissan.
Upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
‘ the Honorable Victoria S. Marks and the Honorable Sabrina S. MeKenne
presided over this matter
* NOT FOR PUBLICATION ***
the arguments advocated and the issues raised, we conclude that
the circuit court correctly denied Hawaii Nissan's motion. As we
have stated:
While we share in the overwhelming support in this
juriediction in favor of arbitration asa means of
Fesolution, see, e.g,, HRS § 658A-6(a) (Supp.2003) ("An
Agreenent contained in a record to sumeit to arbitration any
Guisting or subsequent controversy arising between the
Parties to the agreement is valid, enforceable, and
Errevocable except upon a ground that exists at law or in
equity for the revocation 3f a contract.")? HRS § 658-23
(Supp.2003) (describing specific and Limited circumstances
under which 2 court may vacate an arbitration award)?
Tatibauat lv, Ellgworth, 99 Hawai'i 226, 234, 5¢ P-3d 337,
405 (20027 (ort is well settled that the legislature
overwhelmingly favors arbitration as a.m
Fesolution."), it is axiomatic that ther
agieenent to arbitrate in the first instance.
Luke v. Gentry Realty, Ltd., 105 Hawai'i 241, 249, 96 P.3d 261,
269 (2004). Whether there is a valid agreement to arbitrate a
particular dispute is a matter of state contract law. See, agi,
Eixst Options of Chicago, Inc, v, Kaplan, 514 0.5. 938, 944
(1995) (“When deciding whether the parties agreed to arbitrate a
certain matter (including arbitrability), courts generally . . .
should apply ordinary state-law principles that govern the
formation of contracts.”).
‘The credit sale contract signed by Cho stal
that, if
either party requests arbitration, Cho agrees to arbitrate “any
controversy or claim between (Cho] and (Hawaii Ni:
in) arising
out of or related to this Contract.” (Emphasis added.) The
plain language of the contract refutes Hawaii Nissan’s argument
that Cho agreed to arbitrate her current dispute: while Cho
*** NOTFOR PUBLICATION ***
agreed to arbitrate any dispute arising out of the credit sale
contract, she did not agree to arbitrate any dispute arising from
the purchase of the Nissan Pathfinder or the various fees
attached thereto. cho signed two separate agreements, and her
agreenent to arbitrate disputes arising from one of those
agreements does not automatically connote an agreement to
arbitrate disputes arising from the other agreement. See, e.g,
Luke v, Gentry, 105 Hawai'i at 249, 96 P.3d at 269. The
arbitration clause is inapplicable to the parties’ dispute.
Therefore,
IT IS HEREBY ORDERED that the circuit court’s June 12,
2003 order denying Hawaii Nissan’s motion to compel arbitration
and/or to stay proceedings is affirmed.
DATED: Honolulu, Hawai'i, June 17, 2005.
on the briefs: Ye yn
Shelton G.W. Jim on
and Henry F. Beernan :
(of Jim On & Beerman) SE Ls
for defendant-appellant
Hawaii Nissan, Inc., dba XS
New City Nissan bs ET el E
John Francis Perkin Yuner. .
and Brandee J. Faria + Dede
(of Perkin & Faria) and
James J. Bickerton and a aG~
Scott K. Saiki (of Bickerton OF
Saunders Dang & Sullivan)
for plaintiff-appellee
Yun Ki Cho, individually
and on behalf of all others
similarly situated
|
d89fc096-31ae-40ae-9234-63305630d921 | State v. McGovern | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
—
NO. 26476
oats
STATE OF HAWAI'I, Plaintiff-appellee,
vs.
JOHN McGOVERN, Defendant -Appellant.
SSS
APPEAL FROM THE THIRD CIRCUIT COURT
(CR. NO. 02-1-195)
(2y: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Defendant-appellant John MeGovern appeals from the
March 1, 2004 judgment of conviction and sentence of the Circuit
Court of the Third Circuit, the Honorable Judge Terence 7.
Yoshioka presiding, resulting from a jury verdict finding
McGovern guilty of murder in the first degree, in violation of
Hawai'i Revised Statutes (HRS) § 707-701(1) (a) (1993), carrying
oF use of a firearm in commission of a separate felony, in
violation of HRS § 124-6(a) (Supp. 1999), and unauthorized
control of propelled vehicle, in violation of HRS § 708-836
(Supp. 2001). on appeal, McGovern alleges the circuit court:
(2) erred by refusing to give requested jury instructions
regarding criminal conspiracy, criminal solicitation, and
evaluating accomplice testimony; and (2) improperly denied
McGovern’s motion to di
miss Count IV, carrying or use of a
*** NOT FOR PUBLICATION ***
firearm in comission of a separate felony, {hereinafter, the
firearm charge].
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
resolve McGovern’s contentions as follows
(2) The circuit court did not err in refusing to
instruct the jury on criminal conspiracy and solicitation to
commit murder in the first degree because McGovern was convicted
of the charged offense of murder in the firat degree, thereby
rendering the circuit court’s failure to instruct on criminal
conspiracy and solicitation harmless. See State v, Haanic, 94
Hawai'i 405, 425, 16 P.3d 246, 256 (2001). Further, the circuit
court did not err in refusing to give standard jury instruction
6.01A regarding accomplice testimony because the jury, having
been given standard jury instruction 3.09, was sufficiently
alerted to the factors it needed to consider in determining the
credibility and motivation of the testimony of McGovern’s
accomplice via opening statements, evidence presented to the
jury, cross-examination, and closing arguments. See State v.
‘Okumura 78 Hawai'i 383, 408, 694 P.2d 80, 105 (1995).
(2) The circuit court properly denied MeGovern's
motion to dismiss the firearm charge because the indictment, when
read together with the other charges of murder in the first and
second degree, adequately informed McGovern of the nature of the
*** NOT FOR PUBLICATION ***
Ss
cause of action against him. See HRS § 806-31 (1993); Hawai'i
Rules of Penal Procedure Rule 7(d) (2001); gee alao State v,
Israel, 78 Hawai'i 66, 70-75, 890 P.2d 303, 307-312 (1995); State
w.Sprattling, 99 Hawai'i 312, 318-19, 55 P.3d 276, 262-83
(2002). Therefore,
IT IS HEREBY ORDERED that the circuit court’s March 1,
2004 judgment of conviction and sentence is affirmed.
DATED: Honolulu, Hawai'i, July 22, 2005.
on the briefe:
Keith s. shigetom, Gre —
for defendant-appellant
Jack N. Mateukawa, Ronse
Deputy Prosecuting Attorney, Nese 2 ane
for plaintiff-appellee
Vane Didi
|
4add5873-22db-4bd0-b946-6c1b69b2466c | State v. Tokunaga | hawaii | Hawaii Supreme Court | *** NOTFOR PUBLICATION ***
NO. 24843
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
SS
STATE OF HAWAI'I, Plaintiff-Appellant,
~ NAP S082
SYDNEY TOKUNAGA, Defendant -Appellee
6 |
aay
APPEAL Pow THE FIRST crecurT cour
(CR. NO. 01-12-1172)
”
Dus
Moon, C.J., Levinson, Acoba, and Duffy, JJ.
Nakayama, J., Dissenting)
Plaintiff-appellant State of Hawai'i (hereinafter, the
prosecution] appeals from the first circuit court’s' December 17,
2001 order dismissing the charge of attempted assault in the
on
second degree against defendant-appellee Sydney Tokunag:
appeal, the prosecution contends that the circuit court erred in
(2) finding that there was no rational basis in the evidence to
submit the charge of attempted assault in the second degree to
the jury and (2) concluding that retrial on the attempted assault
As such, the
Jeopardy clau
charge was barred by the doubl
Prosecution requests that this court reverse the trial court’s
order dismissing the attempted assault charge, vacate Tokunaga’s
ded over the matter at 4
1 The Honorable Richard K. Perkine pr
on appeal
*** NOT FOR PUBLICATION ***
plea to assault in the third degree, and remand this case for a
new trial on the attempted assault charge.
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 the
instant appeal is moot.
Ie! is well-settled that the mootness doctrine
encompasses the circumstances that destroy the
Justiciability of a case previously suitable for
Getermination, “A case is moot where the question to
be determined is abstract and doce not rest on
existing facts or rights. Thus, the moctnese doctrine
So properly invoked where events have eo affected
relations between the parties that the two condstions
for justiciability -- adverse interest and effective
renedy =~ have besn compromised.
State v. Fukusaku, 85 Hawai'i 462, 475, 946 P.2d 32, 45 (1997)
(citations omitted). Although neither party raises a
jurisdictional iseue in the instant appeal, “[aln appellate court
has . . . an independent obligation to ensure jurisdiction over
each case and to dismiss the appeal gua sponte if a
jurisdictional defect exists.” State v. Graybeard, 93 Hawai'i
$13, 516, 6 P.3d 385, 388 (App. 2000) (citing Bacon v. Karlin, 66
Haw. 648, 650, 727 P.2d 1227, 1129 (1986). “Courts will not
consume time deciding abstract propositions of law or moot cases,
and have no jurisdiction to do so.” Territory v. Aldridge, 35
Haw. 565, 568 (1940).
An adverse interest arose between the prosecution and
defense when the prosecution sought to convict Tokunaga of
assault, attempted assault, or assault in the third degree as a
*** NOT FOR PUBLICATION ***
Se
lesser included offense for his conduct on July 13, 2001,
However, the adverse interest was compromised when, without
objection by the prosecution, Tokunaga pled guilty to assault in
the third degree on December 6, 2002. By obtaining a conviction
for the lesser included offense, the prosecution was barred from
re-trying Tokunaga on the greater offenses by the double jeopardy
clause.? See State v, Brantley, 99 Hawai'i 463, 473, se P.3a
1252, 1261 (2002) (holding that the double jeopardy clause
Prohibits the prosecution from trying a defendant for a greater
offense after it has convicted him of a lesser included offense) .
With respect to effective remedy, we recognize that the
Prosecution‘s appeal from the December 17, 2001 order dismissing
ult charge is proper under HRS § 641-13 (1)
the attempted a
(2993).” However, inasmuch as HRS § 641-13 does not permit the
Prosecution to appeal a judgment entered pursuant to a plea of
Ro-contest, the December 14, 2001 judgment is not appealable.
Thus, thie court lacks jurisdiction to vacate the December 14,
2001 judgment. Consequently, Tokunaga’s conviction of assault in
the third degree must stand, and this court is prohibited by the
double jeopardy clause trom ordering a retrial on the attempted
2 cots without the conviction on the lesser included offense,
Tokunaga could not be retried for the assault charge inasmuch as the jury
unanimously found that he was not guilty of thie offense
> cpenAithough HRS § 641-13(1) provides that appeals by the pro
tay be taken fron Yan order’. . . sustaining a gation to diseiee eee
count [of an indictment) (emphasis addea), this cout held in state v,\
Booking that, “(al lthough the order [entered by the court, gus Sathts”
Gienissing the proaect ‘wes not entered in response toa Eation, it
x appealable under MRE $ G41-13(3)." 97 Hast aes,
1, 40P.34 507, 812 (exphasis added)
*** NOT FOR PUBLICATION ***
assault charge. See Brantley, 99 Hawai'i at 473, 56 P.3é at
1261. Given the foregoing and notwithstanding the fact that the
December 17, 2001 order is appealable, this court cannot grant
the prosecution an effective remedy for its appeal from that
order. Therefore, inasmuch as the two conditions of
justiciability have been compromised,
IT 18 HEREBY ORDERED that the prosecution's appeal from
the circuit court’s December 17, 2001 order is dismissed with
prejudice as moot.
DATED: Honolulu, Hawai'i, June 7, 2005.
on the briefs: Gy
Loren J. Thomas, Deputy
Prosecuting Attorney Ble Aikcine
for plaintiff-appellant
Mary Ann Barnard, OD NC
for defendant-appellee Foran s Radish
|
4012c182-3856-4d25-8403-a961243a8baf | Hutch v. State. Concurring and Dissenting Opinion by J. Nakayama [pdf]. | hawaii | Hawaii Supreme Court | #**ROR PUBLICATION***
Ce
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
oo--~
EUGENE JAMES HUTCH, Petitioner-Appellant
vs.
STATE OF HAWAI'I, Respondent-Appellee
st
No. 25711 :
Nd 62 8
APPEAL FROM THE FIRST CIRCUIT COURT
(s.P.P. NO. 02-1-0052; CR. NO. 96-1076) ~:
JUNE 29, 2005
MOON, C.J.) LEVINSON, ACOBA, AND DUFFY JJ.2
WITH NAKAYAMA, J., CONCURRING SEPARATELY AND DISSENTING
OPINION OF THE COURT BY ACOBA, J.
Petitioner-Appellant pro s@ Eugene Hutch (Appellant)
appeals from a March 13, 2003 order of the circuit court of the
first circuit (the court) denying his Hawai'i Rules of Penal
Procedure (HRPP) Rule 40 petition for post-conviction relief to
vacate, set aside, or correct judgment or to release Appellant
from custody. We vacate that part of the order relating to
Appellant's “Lockdown” in a special holding facility, and remand
that aspect of the petition to the court for hearing. As to
{the Honorable Milfred K. Watanabe presided.
aan
“POR PUBLICATION***
—_— esses
Appellant’s claim that he was improperly refused access to a
prison guidebook and medically prescribed shoes, we affirm the
court’s denial of @ Rule 40 hearing but remand that part of the
petition for disposition under the civil rules.
In the course of Appellant's incarceration at Halawa
correctional Facility, several inmates filed paperwork requesting
approval for Appellant's legal assistance. On April 5, 2002,
prison staff confiscated “unauthorized property” from Appellant’ s
cell that consisted of legal size envelopes with the names of
other inmates Listed on them. These inmates allegedly did not
follow the procedures established by prison staff for requesting
assistance from a fellow innate, Appellant was sentenced to
fourteen days’ lockdown in the Special Holding Unit of the
facility for failure to obtain proper authorization prior to
helping these innates in their legal matters.
on June 10, 2002, Appellant filed the first of a series
of requests to the warden that he be allowed to receive gym shoes
delivered for him on the grounds that the shoes were medically
necessary. In support of his request, Appellant produced a
prison medical staff meno dated May 29, 2002, stating that he may
wear the shoes “for medical reason:
on June 24, 2002, Appellant received a letter from
Deborah Bezilla, an administrative assistant at a private law
office, stating that the 2002 edition of the Federal Prison
***FOR PUBLICATION***
a
Guidebook (Federal Prison Guidebook) that had been ordered, paid
for, and sent for delivery to Appellant in prison, had been
returned to the law office because it had been refused delivery
at the address given.
Appellant has filed numerous claims and appeals against
Respondent-Appellee State of Hawai‘ (the State) while
incarcerated.
on July 8, 2002, Appellant filed his Rule 40 petition,*
seeking relief on the grounds of (1) illegal punishment resulting
from (a) the application of a repealed prison rule and (b) an
in his Rule 40 petition, Appellant asserted six grounds to support
his claim that he wos “being held unlawfully.” First, he claimed that prion
eee eet Mhsnsered” nis eftorte to pursue e legal’ claim. . . where (the)
sens Eefse (a) ce allow (Appellant) to receive [a copy of the) 2002 Federal
yarden EGfS28 {52 Gna [nedically prescribed) gym shoes.” Second, he argued
reser Gn enough Howali Adsinistrative Rules (HAR) § 17-202-1(b), governing
ENtaI"Steiscance between inmates on legal matters, was repeaied on April 15,
sett Bo prison stsff continues to enforce the rule, Ta support of this
seecad ground, he stated that (1) the warden had approved his assisting
see Teeata, Rus Pesaro, (2) the staff went into his prison cell and
meet tgcates Legal docusente, and (3) Appellant “is now in (the) holding unit.”
HOPE CSaIEa Ground, Appellant maintained that “the above shows
retaliation herein.” As supporting facts for this third ground, he stated
Tete stron ib tene prison staff to enforce rules repealed shows misconduct s
rote on appellant’ s] cocord and [Hewai'i Revised Statutes (HRS) §) 706-
[g50) TR (SPEkaw Tappeaiant] will not be considered for parole of continuous
ceeies a behavior ih prison.” Fourth, Appellant argued that the prison
SkSEEEZefanal to allow him to receive the 2002 Federal Prison Guidebook was
ShtGnsticucional because it denied him access to “tl aw," eneredy
chinderting Appellant's] efforts to pursue a legal clasn(
BPelleateen ground, Appellant asserted that even though HAR § 17-
poz-i {b) wes repesied effective April 15, 2000, Appellant wes still punished
Beer Nelpina Inmates [1° He Festated the facts used to support his second
eeinu th Seeater setall, claritying that he “is now in the Special Holding
Fe for ndiping srmates” and that “by being locked-up in the Special Holding
Geet fee BPIRIS? fiom aking classes in the Learning Center” such as parenting
ee ee ee a taR! mestings.© Finally, in his sixth ground, Appellant claimed
EAMES) Stiying nie receipe of the 2002 Federal Prison Guidebook, the prison
thie’lnindgeed [hisl efforts to pursue a legal claim[.]” He restated facts
Seatt cbly mentioned, reiterating hia concern that "what [he] do(es) in
Peleee Ti continue to hinder (his) consideration for (plarole.””
AGLEEESRaiay, 'appetiant requested that the court order the prison staff to
BeSeEoTALD geo’ the Special Holding Unit and to “expunge” ail alleged prison
Leis8Skaaces for helping inmates. try and gain adequate, effective, and
meaningful access tothe courts."
=**FOR PUBLICATION***
ee
unconstitutional restriction against “helping inmates, “?
(2) denial of access to the courts,‘ and (3) retaliatory conduct
on the part of prison staff.’ Appellant requested that the court
(2) order the prison staff to release him from the Special
Holding Unit and (2) expunge all alleged instances of misconduct
for helping inmates “gain adequate, effective, and meaningful
access to the courts.”
on March 13, 2003, the court issued an order denying
the petition. The court determined that “(Appellant’s) claims
are without merit, [are] patently frivolous, and [are] without
support in either the record or evidence submitted by
{Appellant].” The court did not file any findings of fact or
conclusions of law.* Appellant filed a notice of appeal on
March 21, 2003.
on appeal, Appellant challenges the court’s decision as
wallow[ing] the (prison (s]taff to hinder{ his] access to the
courts by denying [him] up-to-date [1]aw [blooks, [glym (s}hoes
required by the (foot (doctor, and us{ing) retaliation against
[him] to enforce . . . HAR § 17-202-1(b)." He also emphasizes
that he “is now in the Special Holding Unit” and reiterates
+ This represents “Ground two" and "Ground five” as stated in
Appellant's Rule 40 petition
This consolidates “Ground one,” “Ground four,” and “Ground six” a=
Listed on Appellant's Rule #0 petition.
+ thie de “Ground the
of Appellant's Rule 40 petition.
+ sasmuch as there are no recorded findings by the court, the
azgunent by the State that Appellant aid not specificelly challenge’ the
Shirers siaplicit fingings of fact” is without merit
4
***FOR PUBLICATION"**
general arguments on “the right of access to the courts
1.
HREP Rule 40(a) (1) (2002) describes the grounds upon
which relief from judgment may be sought. It states:
(2) From Judgaent. At any time but not prior to fina
judgnent, any person may seek relief under the procedure set
Eoxin in’ this Fale fron the Judgment of conviction, on the
following grounds:
127 FEst"the judgment wae obtained or sentence imposed
in violation of the constitution of the United States or
State of Hawaii:
a} that the court wach rendered the judgment was
without jurisdiction over the person or subject matters
{ali} that the sentence is i1lega2s
(Ey) chat there ie newly discovered evidences or
(3y’ any ground which ie's basis for collateral attack
on the Judsnent.
HREP Rule 40(a) (2) (2002) outlines the grounds upon which
challenges to custody may be made. It state
rom Custody. Any person may seek relief under the
procedure set forth in this rule fron custody based upon &
Josgment of conviction, on the following grounds
Th) “that the sentence was fully served?
iL)This pecole er probation was unlawfully revoked:
(10) any other cround making the custadi. thovah oot
‘the indament, llesal-
(Emphasis added.) Additionally, HRPP Rule 40(f) (2002) provides,
in relevant part, as follows:
Hearings. If es e 2 =
Bpaaieitina which say extend onty to the issues raised
Pati etitien or answer, However, the court may deny 2
hearing if the petitioner's claim 9
‘ther evidence sobsitted by the petitioner. The court may
SHEGES Shearing on a specific question of fact when 2
full ond fair evidentiary hearing upon that question was
+ ahe State argues that Appellant's claims concerning alleged
retaliation, Inability te attend various classes, and denial of a pair of
ifSes are not argued in the opening brief and should be deemed waived
AeSeerr ve find’his opening brief to be sufficient and, in Light of our de
ASS ’Heeste, {Se Lnbeer Min] consider nis arguments as made in poth his
Diliate briefs and Rule 40 petition.
*#*FOR PUBLICATION***
held during the course of the proceedings which led to the
Jadgment ce custody which is the subject of the petition or
at any later proceeding.
(Emphases added.) Accordingly, a hearing on a Rule 40 petition
is required whenever the allegations in a petition, if taken as
true, (1) would change the verdict rendered or (2) would
establish the illegality of custody following a judgment. HRPP
Rules 40(a) and (f); see Turner v, Hawai'i Paroling Auth., 93
Hawas's 298, 310, 1 P.3d 768, 780 (App. 2000).
mt.
‘The standard of review in determining whether a court
erred in denying a petition for post-conviction relief without a
hearing is de nove. Dan v. State, 76 Hawai'i 423, 427, @79 P.2d
528, 532 (1994). Under de nove review, “the appellate court
steps into the trial court’s position, reviews the same trial
record, and redecides the issue(,]” determining whether the
court’s decision was right or wrong. Id. This court has held
that de nove review is appropriate because a denial of a petition
for post-conviction relief presents a question of law. Id. AS
this court has said,
[als @ general rule, a hearing should be held on a Rule 40
petition for post-conviction Felief where the petition
Febleclain. fo establish a colorable claim,
the allegations of the petition must show that if taken as
true the facts alleged would change the verdict, however, 2
petitioner's conclusions nesd not be regarded a9 tras.
Rhere examination of the record of the trial court
proceedings indicates that the petitioner's allegations show
Fo colorabie claim, it is not error to deny the petition,
Without a hearing. The question on apesa] of ¢ denial of 2
Aude 40 petition without a hearing ie whether the trial
FOR PUBLICATION***
oe
Td. (quoting State vs Allen, 7 Haw. App. 89, 92-93, 744 P.2d 789,
792-93 (1987)) (some emphasis added and some in original).
WW.
AL
Appellant's first argument is two-fold. He argues that
he was illegally punished for (1) violating HAR § 17-202-1(b), @
rule that has been repealed, and (2) for assisting inmates in
gaining meaningful access to the courts. HAR 17-202-1(b) stated
that “{mlutual assistance between innates or wards on legal
matters is permitted on a case by case basis at the facility
administrator's discretion. There is no absolute right of
Inmates to mutual assistance.” The rule was repealed on
April 1, 2000. Appellant contends that the prison staff
(a) applied the rule inasmuch as it confined him in the Special
Holding facility and (2) created an illegal note of misconduct on
his prison record which will adversely impact his future chances
of parole. tn response, the State argues that Appellant cannot
denonstrate that the repealed rule was applied to him, and that
even assuming some evidence that the facility was following the
repealed rule, the rule “in and of itself is not unconstitutional
or illegal because prisons have the authority to regulate mutual
assistance” and “there is no requirement that prisons regulate by
administrative rule.”
2.
‘The United States Supreme Court case, Johnson v. Avery,
***FOR PUBLICATION***
ee
393 U.S. 483 (1969), is supportive of Appellant’s first argunent.
the petitioner in Johnson was transferred to a maximum security
building for violating a prison regulation that prohibited
inmates from advising, assisting, or otherwise contracting to aid
another inmate in legal matters." Id, at 484. He sought relief
from the disciplinary confinement by filing a “motion for law
pooks and a typewriter” in federal district court. Id. The
district court “treated this motion as a petition for a writ of
habeas corpus and, after a hearing, ordered [the petitioner]
released from disciplinary confinement and restored to the status
of an ordinary prisoner.” Id. The district court “helé[, in
part,] that the regulation was void because it in effect barred
{literate prisoners from access to federal habeas corpus.” Jd.
the Sixth Circuit reversed, concluding “that the regulation did
not unlawfully conflict with the federal right of habeas corpus.”
Id, at 485.
The Supreme Court bégan its opinion by reaffirming the
importance of the writ of habeas corpus, observing that “{s] ince
+ qhe regulation at seve in Johnson provided as follows:
No innate will advise, assist or otherwise contract to aid
Mother, either with or without a fee, to prepare Writs or
Stheriagel mecters, it as not intended that an innocent
Ban be punished. fhen a nan believes he is unlawfully held
BePOL Bally convicted, he should prepare a brief or state
Gls complaine in letter form and address it to his lawyer or
Bjuase, A formal Writ is not necessary to receive a
hearing. Charges oF untrue complaints may be
punished, cen ave forbidden to set themselves up a
Eractiticners for the purpose of promoting @ business of
Melting Write.
393 u.s. at al
***POR PUBLICATION
the basic purpose of the writ is to enable those unlawfully
incarcerated to obtain their freedom, it is fundamental that
their complaints may not be denied or obstructed.” Id. (emphasis
added). Based on this tenet, the Court stated that “[t]here can
be no doubt that [a state) could not constitutionally adopt and
enforce a rule forbidding illiterate or poorly educated prisoners
to f1le habeas corpus petitions.” Id, at 487. But, said the
Court, the state regulation at issue “effectively (did) just
that." Id
Accordingly, it was determined that the record
supported the district court’s conclusion “that for ail practical
purposes, if such prisoners cannot have the assistance of 4
\jaithouse lawyer," their possibly valid constitutional claims
will never be heard in any court.” Id. (internal quotation marks
and citation omitted). The Court observed that
tthe initial burden of presenting a clain to post-conviction
Fellef usually rests upon the indigent prisoner hinself with
Such help 3 he can obtain within the prison walls or the
prison system. In the case of all except those who are able
ES help themselves = usuelly a few old hands or
exceptionally gifted prisoners ~~ she prisoner is, in
auilable.
Id, at 488 (emphasis added).
However, the Supreme Court also recognized that a state
ay Smpose reasonable restrictions and restraints upon the
acknowledged propensity of prisoners to abuse
Gisina and che seeking of eesistance in the preparation of
Spplications for relief: for example, by Limitations on the
Tike and location ef such activities and the dmposition of
punishment for the giving or receipt of consideration in
etyse
+#*FOR PUBLICATION***
z iP gay not valisiy enforce 2 ceaulee =
bere inesus, barrie inmates fron furnishing such
‘Id. at 490 (emphases added) (citation omitted). Accordingly, the
sixth Circuit decision was reversed and the case remanded for
further proceedings consistent with the opinion. 1d.
v.
AL
Pursuant to Johnson, @ prisoner may not be punished for
violating @ regulation or restriction that unreasonably obstructs
the right of access to the courts. Preliminarily, however, it
should be noted that our obligation on this appeal is not to
decide the ultimate question, resolved in Johnson, of whether
Appellant was indeed illegally held in the Special Holding Unit
based upon an unreasonable regulation. Rather, we need only
determine whether Appellant made a showing of a colorable clain,
thereby entitling him to an HRPP Rule 40(f) hearing.”
+ he State contends that the Sixth Circuit in Weaver vs Tooabs, 915
F.zd 1574 (6th Cit. 1990), upheld a “prison regulation almost identical to HAR
[pi ‘viedoc‘t te). Weaver, however, is an unpublished disposition.
il Rtrmoce, 's gutticient description of the prison regulation in that case
ser eMerovided, thereby precluding a determination that it is “identical” to
Che Tegulacion at issue here.
% the dissent cites to @ five-to-four decision of the United states
Suprene Court in gandin 4. Connor, 5150.8. 472 (2995) (Ginsburg, J.
Sree cots ined by drevens, Je) (Breyer, J.» dissenting, Joined by Souter,
serene ding and dissenting opinion [nereinafter “Dissenting opinion”) at
Jr) ggSGle "however, concerned procedural due process rights and not the
iranttaly oi ohgbeas relief. the defendant there brought © civil riahte
Barimg against prison officials, clalming, Apter alia, “a deprivation of
ih oot jue process in connection sith (a) discaplinary hesringl,]" $25
Beeeree thes unerein the prison adjustment committee refused his request to
prbcekt Mlehessess ide at 475.” At the conclusion of the hearing, the
ESfenaant was sentenced to "20 days’ disciplinary segregation in’ the Special
Sega alee Tae ar 4)S-76, A masority of five Justices held that being
(continued...)
10
***ROR PUBLICATION***
a
As stated previously, a Rule 40 hearing should be held
Lf the petitioner states a colorable claim by “show[ing] that if
taken a5 true the facts alleged [in the petition] would” entitle
the petitioner to be released from custody. Dan, 76 Hawai'i at
427, 879 P.2d at $32. See Turner, 93 Hawai't at 310-21, 1 P.3¢
at 780 (holding that a Rule 40 hearing was required where the
appellant “establish[ed] a ‘colorable claim’ that the alleged
prolonged physical custody resulting from denial of his parole
request was illegal”); er v. Rodriguez, 411 U.S. 475, 484
(1973) ("(T}he essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and that the
lease fror
(..continued)
GeeeneT Res “in segregated confinenent did not present the type of atypical,
a eee etse depcivacion in which a {aJtate might conceivably create a liberty
GREETS SEES cc abe, and, therefore, the defendant did not have “2
pistected’ liberty interest that would entitle him to
oeTG! at 487 (emphasis added)
fetes Appeiiant does not claim a procedural due process violation
rather, the question presented in this appeal” is whether Appellant established
Cblorable Aisin that required the court to hold a heering pursvent to HRPP
fale gett) Before ruling cn Appellant's petition. Moreover, this appeal does
Rettraise the question of whether Appellant’s “punishment was an ordinary
[etadene of prison Life,” Olssenting opinion st 7.
RT doureeensday disciplinary segregation punishment may, as the
dissent contends, conseitte “an ordinsry incident of prison life,”
eee cenceition at 1. Sut Appellant's petition raises a more specific
Tess habeas relief, He contends that he was punished by being confined
wetthe Special dolaing Unit for assisting fellow inmates in violation of not
duet an crise tulteTs Tegal and constitutionat aspect of Appellant's claim
weeete eb the instruction of Johnson, 2 habeas corpus case, ss opposed to
Sandip, @ civit rights c
Tor, if Appeliant’s allegations are true, the “discipline” imposed
‘upon him would not be tan erdinary incident of prison life” due to its illegal
ween sein onatitutional basis. Ih that connection, Johnson reversed the Sixth
seer oa twersal of a district court decision and ordered that the defendant
Se Sveledecd from disciplinary confinesent and restored to the status of an
Cleinary prisoner.” 399 U.8. at 484. This is the precise relis
Repellant seens here, Thus, with ali due respect, the di
PeeSiosing thee “In]abeas relief does not lie for’ this discipline.”
Biaseneing opinion at 7.
n
“FOR PUBLICATION***
a
fecal custody.” (Emphasis added.)) In his Rule 40 petition,
Appellant alleged, in relevant part, that the prison was still
enforcing the repealed HAR § 17-202-1(b) and that he was confined
to the Special Holding Unit for assisting other inmates with
legal matters where he had obtained warden permission to do 90.
taking these facts “as true,” Dan, 76 Hawai'i at 427, 879 P.2d at
532, Appellant would be entitled to the habeas corpus relief
granted by the district court in Johnson and released from the
Special Holding Unit.
8.
However, as previously mentioned, pursuant to HREP Rule
40(£), “the court may deny a hearing if the petitioner’s claim is
patently frivolous and is without trace of support either in the
Sm 7 sul bs titioner.”
(emphasis added.) Moreover, “[w]here examination of the record
of the trial court proceedings indicates that the petitioner’ s
allegations show no colorable claim, it is not error to deny the
petition without @ hearing.” Dan, 76 Hawai'i at 427, 679 P.2d at
532. Thus, we must also consider the record before overturning
the court’s denial of the petition without a hearing.”
In support of his petition, Appellant provided numerous
exhibits, including two “NOTICE[S] OF REPORT OF MISCONDUCT AND
HEARING” and ten “INMATE COMPLAINT/GRIEVANCE” forms. According
"He acknowledge the Stete’s concern over additional documents
attached te Appellant's opening brief and observe that our decision rests only
Gpon consiserstion of the official record on appeal without reference to
Rppetlant’s new attachments.
2
***FOR PUBLICATION***
a
to the May 9, 2001 notice, Appellant was found “Guilty” of
“Refusing to obey an order of any staff member(,]" by
“assist several inmates Le: tte: nou 1
authorization.” (Emphasis added.) This same notice also
provided that Appellant was issued @ “SANCTION of “14 days
lockdown to be served in Special Holding pending the availability
of space.” According to the June 27, 2002 notice, Appellant was
found “Guilty to all charges” for, inter alia, “failing to follow
facility directives regarding mutual assistance|.]" (Emphasis
added.)
Appellant was again issued the “SANCTION” of “14 days
lockdown to be served in special holding pending space
availability.” As for the ten grievance forms submitted, all of
them indicated, under the heading “RESOLUTION,” that the prison
had @ policy of requiring inmates to obtain warden approval
before assisting another inmate with legal matters.” One of the
© several of Appellant's grievances were denied as follows: (1) the
resolution for the April ty 2002 grievance stated, “Inmate assistance must be
ifsrowed( 1" (2) the resolution for the May 31, 2001 grievance stated,
aereeee te ea help other inmates for legal matters will be decided on a case~
crease ResssL.[" 13) she resolution for the July 1, 2001 grievance stated,
DYoG'here sanciioned for a failure to follow rules as you were instructed on
sree reSe obtdsions on how to seek authorization for mutual assistance(.1”
Ter the resolution for the January 30, 200) grievance stated, “Library staff
We) he Teaig procedures when it aa determined that you had unauthorized
[eSai‘sateriels in your possecsion. During that period of time you were not
1eaebved co provide mutusl assistance, therefore library staff acted in
seespaence with current program rules(,]" and (3) the resolution for the
Novenber 24, 2000 grievance stated,
A request for mutual assistance must be specific. In order
to'be considered fer authorization to receive assistance
from enother inmate, simply send a request to the Deputy
Werden’s Office ard indicate the fame of the inmate you wish
Qoraseist you. Please send your written request through
(continued)
B
***FOR PUBLICATION***
eee
ten grievance forms further indicated that the prison may have
continued to operate under the repealed HAR Title 17.”
In his February 2, 2001 grievance, Appellant stated
that he submitted several inmate request forms to his counselor,
David Voyles, to give to the warden for approval to help several
inmates and that those requests were ignored. The “RESOLUTION”
in this grievance stated that the warden never received the
requests. The Ninth Circuit has determined that a state did not
satisfy its burden of demonstrating meaningful access where the
record indicated that requests for Library access were “lost or
ignored” or arbitrarily denied. Gluth v. Kangas, 951 F.2d 1504,
1508 (9th Cir. 1991) ("It is the state's burden to provide
meaningful access and to demonstrate that its chosen method is
adequate.)
Appellant also submitted a “FOUND PROPERTY REPORT,”
documenting that envelopes addressed to other inmates, including
(conte)
Teguiar channels. fe advised thet mutual assistance is not
S'Fight ond will be reviewed on a case by case basis:
© ie do not agree with the State's assertion that the “grievances
appellant filed are illegible, so it cannot be determined if they concern the
‘peeled prison rejulation.” In hie August 1£, 2001 grievance, Appellant
Jepibly challenged HAR Title 17 as "no Longer in effect since April 2000" and
replaced by a nem titie, Title 23. Tt wae decided, however, that the
SRliministeation has not’ received a finalized version of Titie 23 and has been
told it is still in Graft. the rules from Title 17 were incorporated into,
Separtnencal policy. They are in effect both on your module guidelines. and
were posted in the quads.”
lie also cannot accept the State's contention that “[blecause he
attached copies of the grievances Defore the prison aduinistration submitted
ES PeSponse to then, Appellant's accusations therein have not been confirmed
and Cannot be taken ds fact." The grievances in the record show typewritten
S83 Signed responses by verious prison officials, including the warden, under
the heading “RESOLUTION.”
4
+**FOR PUBLICATION***
oe
one Aua Pedro, were confiscated from Appellant’ s cell during a
srandom shakedown” on April 5, 2002. According to @ “HCE
[(Halawa Correctional Facility)) INMATE REQUEST FORM,” Aua
pedro’s request that Appellant be allowed to help him with legal
matters was approved by prison staff on June 22, 2001, In the
exhibit entitled “RESULTS FOR ADJUSTMENT COMMITTEE HEARING FOR
INUATE EUGENE HUTCH[,]” the committee sanctioned Appellant to
fourteen days’ segregation in the Special Holding Unit for being
in possession of and making copies of legal documents for other
inmates as follows:
the conaittes wants to make it very clear to the subject
Thache is got being charged with assist
esas cette ies ares a
Este cupject’s responsibility to make these copies
‘oeumente of other inmates for
‘Gocunenes fo tne courts: rt is
the Fesponsibitity of snmate Genare Gualdarana. The Subject
Shtuld baty be aagisting in Legel issues by discussion end
Correspondence with the innate.
(some emphases added and some in original.) From what we can
glean, HAR § 17-202-1(b) aside, this is the most specific
description of the mutual assistance policy being enforced
against Appellant.
‘The State has not provided the rules or policy by which
the prison decides whether to authorize mutual assistance between
inmates, but continues to assert that in sanctioning Appellant,
the prison did not implement the repealed HAR § 17-202-1(b)."*
the State maintaing that the prison need not operate by
acninistretive rules and that “[e]ven 1 section 17-202-1(b) was mistakenly
BSUS fhe basic of Appellant’ s misconduct, @ clericel mistake does not take
(continued)
1s
***BOR PUBLICATION***
ee
However, the reason given in the aforementioned adjustment
committee report for sending Appellant to the Special Holding
unit is cause for concern. The scope of the prison’s statement
that Appellant “should only be assisting in legal issues by
scussion an S01 with the inmate” is questionable.
(some emphasis added and sone in original.) Prohibiting the
“jailhouse lawyer” from “possessing” the legal documents of the
inmate he has been authorized to “assist,” means that the innate
must be able to read and convey what is written in the papers to
the “jailhouse lawyer” in order to obtain assistance. If the
statenent in the adjustment committee report is accurate, such a
policy, standing alone, may “effectively” “forbid{] illiterate or
poorly educated prisoners to file habeas corpus petitions{,]"
running afoul of Johnson. 393 U.S. at 487. The foregoing
exhibits, then, constitute more than a “trace of support” that
Appellant was illegally and/or unconstitutionally confined to the
Special Holding Unit."
(conned)
away the prison’s authority to regulate mutual assistance, especially in the
Skslnce of ary punishment.» However, the record does not foreclose the
Possibility that the reascn for punishing Appellant may have beer
Eeeonseituvional, See Ban, 7 Hawai'i at 427, 879 P.2d at 532 (stating that
“Genial of a post-conviction motion based on ineffective assistance of counsel
Uienoot conducting an evidentiary Hearing is reviewed de novo for a
Settrsinstion cf whether the flee ang records of the case conclusively show
Chat petitioner ie entitled to gg relief” (citing United States v. Burrows,
b32 Frag 915 (Sth cir. 1968)))
me dissent differs in its application of the “adequacy of
alternatives” standard of Johnson, determining that "{iJnasmuch as (Appellant)
ihi*the other inmates have access to the law iibrary, and are pernitted to
SSoeist' each other in lagal matters through discussion and correspondence
inettucts that these alternative avenues of access to the courts
SRM Tie Feguiation." Dissenting opinion at 5, “This reasoning, however,
(contimed..)
6
**8BOR PUBLICATION***
OO
‘Therefore, we hold, based upon Appellant’s Rule 40
petition and an independent examination of the record, that
Appellant has made a showing of a colorable claim that he was
illegally punished for providing assistance to other inmates and,
accordingly, the court should have held a hearing on the petition
as to this claim.
% continued)
overlooks the individvels sought to be protected in Johngon.
fisce, we enphesive thet our decision today does not reach the
merits of Appellant's fule 40 petition, but simply requires the court to hold
sEebfaag before rendering a decision on the petition for post-conviction
sre Nie bears repeating that the State did not explain its policy
Teliets ag autsel assistance between inmates. In Johnacn, the Supreme Court
Ree chat Tennessee hed not provided its insates wath elternatives to
Prepare petitions available in other states, such as consultation on preparing
cee re ety treined public defenders, interviews and advisement by senior law
Pelgenes, and consultation from Local bar wenbers who volunteer to visit the
sederser 395 gos. at 409; Contrary to the dissent’s contention, gee
Elocenting opinion at 6 n.3, the record does not suggest that Hawaii provides
seereee Reeeenativess Hones, the salternatives” cited by the dissent are
Speculative, without knowing precisely what the Yalternatives” were, it was
SESsasibie for the court co rule on the “adequacy” of such hypothetical
Spiternacives.”
‘hgein, the most explicit description of the State's mutual
assistance policy was provided by Appellant, as discussed gupra. Standing
inet *the Statements in the aforenentioned “RESULTS FOR ADJUSTMENT ComHTrEE
JgMihcr bose the chreat that {iliverste and poorly educated prisoners are
Uohles ackeas to hebess relief. A remand for hearing enables the State to
SEEM ‘those suspect statements, explain its policy in greater detail, and
GEA tee tnae meaningful alternatives exist’ for the illiterete or poorly
Gauceted prisoner
‘Second, assuning, az the dissent contends, that the shrouded
prison policy provides inmates access to the law library and assistance from
Eke Savinouse Lawyer via "discussion and correspondence,” such s0-called
Shaihativesn are aot “meaningful” for the illiterate or poorly educated
Pilsner ato nay not able to read materials in the law library nor communicate
Ghat Ss stated in his or her legal documents in order to facilitate any
WSiscaseisa” or “correspondences with the jailhouse lawyer. The dissent’s
fellance on these alternatives does not account for the very individuals the
Soprene Court sought to protect in Johnsan, and, thus, with all due respect,
pnast be rejected
tn Light of the fact that this matter is remanded for @ hearing,
we do not zesch the question cf an appropriate renedy.. Accordingly, it is
“necessary to discuss Appellant's request for expungenent of “all alleged
ieeTeSheLaconduces for helping inmates try and gain adequate, effective, and
meaningful access to the courte” or effect on parole.
”
**FOR PUBLICATION
oe
vt.
Appellant's final two arguments are that he has been
denied access to the courts and that prison staff have retaliated
against him for attempting to exercise his rights. Appellant's
clains rest on the contentions that prison staff prevented him
from receiving the Federal Prison Guidebook and intentionally
denied him access to his medically required shoes. In response,
the State maintains that Appellant has failed to demonstrate that
the absence of the book injured his ability to access the courts,
citing numerous legal claims filed by Appellant. Furthermore,
the state contends that Appellant did not demonstrate that he had
followed proper procedures for delivery approval and, therefore,
failed to show that the refusal to accept delivery was
retaliatory.
in the instant case, Appellant does not establish a
Rule 40(a) (1) claim challenging the judgment for which Appellant
is currently incazcerated. The lack of access to the Federal
Prison Guidebook and his shoes does not demonstrate that the
judgment against him was unconstitutional, lacking in
jurisdictional foundation, illegal, made in the absence of key
evidence, or that there is a new basis for a collateral attack.
HRPP Rule 40(a) (1). In addition, Appellant’s allegations fail to
demonstrate any claims under Rule 40(a)(2) such as an assertion
that the sentence was fully served, parole or probation was
18
**8FOR PUBLICATION***
ee
unlawfully revoked, or any other ground making the custody
illegal.
However, Appellant may be entitled to relief on these
claims through a civil claim and not a petition under Rule 40.
HREP Rule 40(c) (3) (2002) states, in relevant part, that
Af a post-conviction petition alleges neither il1egality of
jasgmont nor illegality of post-conviction “custody” or
Aveiereint™ but instead alleges 2 c
TTPights statute or other separate cause of action, She
8 this rule
(Emphasis added.) Since Appellant's claims do not meet the
grounds outlined in Rules 40(2) (1) or 40(a) (2), and these claims
seoningly fit under the “[s]eparate [clause of action” under Rule
40(c1 (3), the court should “treat the pleading as a civil
complaint” as to these matters. In the absence of a colorable
claim, the court did not err by not convening a hearing as to
these issues. See Dan, 76 Hawai'i at 427, 879 P.2d at 532.
However, these clains should be “transferred by the court for
disposition under civil rules.” HREP Rule 40(c) (3)."”
vin.
In sunmary, Appellant has made a showing of a colorable
claim that he was illegally or unconstitutionally confined in the
Special Holding Unit and, therefore, he should have been granted
lan HREP Rule 40(£) hearing as to that claim, Appellant's
remaining clains relating to denial of access to the courts and
tn Light of our disposition, we need not address the state's
argunent that Appellant did not have standing to claim a deniel of his right
SPiidcene to the courte due to lack of injury.
19
***FOR PUBLICATION***
retaliatory behavior do not fall within the domain of HRPP Rule
40 and should have been appropriately classified and disposed of
as civil claims. Therefore, the March 13, 2003 order denying
Appellant's petition without a hearing is vacated and the case
remanded to the court for further proceedings consistent with
this opinion.
on the briefe: Y
Eugene James Hutch, hereon
petitioner-appellant,
Pro se. aan
Lisa M. Ttomura, Deputy
Attorney General, State Voom 6. Dus the
of Hawas's, for respondent~
appellee.
20
|
7ea64303-2a39-4ad2-81c8-4e6a990b8480 | State v. Maugaotega. Dissenting Opinion by J. Acoba, with whom J. Duffy joins [pdf]. By a Petition for a Writ of Certiorari, the U.S. Supreme Court vacated the judgment, and remanded the case to the Hawaii Supreme Court, filed 02/20/2007. S.Ct. Notice Regarding Reopening of Appeal No. 26657 and Order to Transmit Trial Records to the Hawaii Supreme Court, filed 05/15/2007 [pdf]. S.Ct. Opinion filed 10/01/2007 [pdf], 115 Haw. 432. Dissenting Opinion by J. Acoba, with whom J. Duffy joins [pdf]. | hawaii | Hawaii Supreme Court | ** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
Nar save
Plaintiff-Appellee,
aa
OO: HE 6;
STATE OF HAWAT'E,
MITI MAUGAOTEGA, JR., Defendant-Appellant
eee
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NOS. 03-1-1897, 03-1-2727, 3-1-2726, 03-1-2725, 03-1-2724)
No, 26657
JUNE 29, 2005
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.
AND ACOBA, J., DISSENTING, WITH WHOM DUFFY, 3
OPINION OF THE COURT BY LEVINSON, J.
‘The defendant-appellant Miti Maugaotega, Jr. appeals
JOINS
from the judgments of the circuit court of the first circuit, the
Honorable Patrick Border presiding, filed on May 17, 2004 and May
18, 2004, convicting him of and sentencing him for twenty-two
offenses in five criminal cases, see infra Section I.
on appeal, Maugaotega contends that the circuit court
plainly erred in sentencing him to extended terms of imprisonment
as a “multiple offender,” pursuant to HRS § 706-662(4) (a) (1993 &
Supp. 2003),! inasmuch ag the jury did not decide that such
HRS § 706-662 provides in relevant pai
ceiteria for extended terms of isprisonsent.
convicted defendant may be subject to an extended term
(Continued.
‘+## FOR PUBLICATION **
continued)
Of imprisonment under section 706-661, if the
Convicted defendant satisfies one or more of the
following criteria:
(2) "the defendant 4s 2 peraistent offender whose imprisonment
for an extended term is necessary for protection of the
public. The court shall not make this finding unless the
Sefendant has previously been convicted of two felonies
Committed at different times when the defendant was eighteen
years of age or older.
(2) Re defendant Le 2 dangerous person whose imprisonment for
an extended term is necessary for protection of the public.
The court shall not make this finding unless the defendant
has been subjected to a psychiatric or psychological
evaluation that documents a significant. history of
Sangerousness to others resulting in criminally violent
conduct, and this history makes the defendant @ serious
Ganger to others. Nothing in this section precludes the
Introduction of victim-related data in order to establish
Gangerousness in accord with the Hawail rules of evidence.
(4) The Gefencant is 2 multiple offender whose criminal actions
were so extensive that a sentence of imprisonment. for an
cxtended tern 1s necessary for protection of the public.
The court shall not make this finding unless:
(a) “The defencent is being sentenced for two or more
felonies or is already under sentence of
Imprisonment for felony: oF
(®) The maximum terms of inprisonment authorized for
ich of the defendant's crines, if made to run
Consecutively, would equal or exceed in length
fhe maximo of the extended ters imposed oF
would equal or exceed forty years if the
extended term inposed is for'a class A felony.
(5) The defendant 19 an offender against the elderly,
handicapped, or @ minor under the age of eight, whose
imprisonment for an extended term is necessary’ for the
protection of the public. The court shall not make this
finding unless:
a)” The defendant attempts or commits any of the
following crimes: murder, manslaughter, 3
Sexual offense that constitutes a felony under
chapter 707, robbery, felonious assault,
burglary, of kidnappingr and
(®) The'defendant, in the course of committing or
attempting to commit the crime, inflicts serious
Or substantial bodily injury upon'a person who
(2) Sixty years of age or olders
(41) Blind, a paraplegic, or a quadriplegic: or
(iL) Eignt years of age or younger? and.
(e) Such’ disabiilty ts know or Feasonably should be
known to the defendant.
(eontinued. .)
FOR PUBLICATION *
extended terms of imprisonment were necessary for the protection
of the public, and, therefore, that the extended term sentences
imposed by the circuit court ran afoul of the United states
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000), and Blakely v, Washington, 124 S.Ct. 2531 (2004).
We note that this court’s recent analysis and decision
in State v, Rivera, 106 Hawai'i 146, 102 P.3d 1044 (2004), which
reaffirmed this court’s holding in State v. Kaua, 102 Hawai'i 1,
72 P.3d 473 (2003), that Hawaii's extended term sentencing scheme
does not run afoul of Apprendi, disposes of Maugactega’s point of
error on appeal. Nevertheless, on January 12, 2005, the United
States Supreme Court decided United States v, Booker, 125 8.ct.
738 (2005), holding that federal sentencing guidelines are
subject to the jury trial requirements of the sixth amendment,
and severing provisions making the guidelines mandatory.
Accordingly, we take this opportunity to reassert the viability
*(,.-continued)
(6) The defendant Le a hate crime offender whose imprisonment
Tor en excended term is necesesry for the protection of the
public, The court shall not make this finding unles:
fa) he defendant 1a convicted of @ crime under chapter *
707,708, or 7317 and
(b) The defendant intentionally selected a victin, or in
the case of a property crime, the property that was
the object of # crime, becouse of hostility tonard the
actual or perceived race, religion, disability,
Sthniesty, national origin, gender identity oF
igh, or sexual orientation of any person. For
jes of this subsection, “gender identity o:
sion” includes a person's actual or perceived
yas well as a person's gender identity,
id self-image, gender-related appear:
sted expression; regardless of whether
that gender identity, gender-related self-image,
gender-related appearance, oF gender-related
‘pression is different from that traditionally
jociated with the person's 8
3
FOR PUBLICATION *
of this court’s analytical “intrinsic-extrinsic” approach to
Hawaii's statutory extended term sentencing scheme.
We hold that our approach to Hawaii's extended tern
sentencing scheme, as explicated in Kaua and Rivera, is not at
odds with United States v. Booker, inasmuch as (1) Booker’s
holding is limited to the federal sentencing guidelines, and (2)
Hawaii's extended term sentencing structure is not mandatory. We
therefore affirm Maugaotega’s sentences.
on Septenber 3, 2003, an O'ahu grand jury returned an
indictment against Maugaotega in Cr. No. 03-1-1897, charging him
with the following offenses: (1) attempted murder in the second
degree (Count I), in violation of Hawai'i Revised Statutes (HRS)
$§ 707-701.5 (1993) and 707-500 (1993); (2) use of a firearm in
the commission of a felony (Counts IZ and V), in violation HRS
§ 134-6(a) and (e) (Supp. 2003); (3) robbery in the first degree
(Count 111), in violation of HRS § 708-840(1) (b) (1) and/or (14)
(1993 & Supp. 2003); (4) burglary in the first degree (Count IV),
in violation of HRS § 708-810(1)(c) (1993); (5) place to keep
firearm (Count VI), in violation of HRS § 134-6(c) and (e) (Supp.
2003;
VII and VITI), in violation of HRS § 712-1243 (1993 & Supp.
2003.
TX), in violation of HRS § 329-43.5(a) (1993).
Following a jury trial that ended on March 3, 2004,
(6) promoting a dangerous drug in the third degree (Counts
and (7) unlawful possession of drug paraphernalia (Count
Maugactega was found guilty as charged on all nine counts. On
4
FOR PUBLICATION *#*
April 22, 2004, the prosecution filed a motion for extended terms
of imprisonment, pursuant to HRS § 706-662(4) (a), see supra note
Le
8, 1-1-2727
On December 18, 2003, an O'ahu grand jury returned an
indictment against Maugactega in Cr. No. 03+1-2727, charging him
with the one count of promoting prison contraband, in violation
of HRS § 710-1022(1) (b) (1993).
on March 8, 2004, Maugaotega entered a no contest plea
to the charge. On April 21, 2004, the prosecution filed a motion
for an extended term of imprisonment, pursuant to HRS § 706-
662(4) (a), gee supra note 1.
c. Cr. No, 03-1-2726
on December 18, 2003, an O'ahu grand jury returned an
indictment against Maugactega in Cr. No. 03-1-2726, charging him
with the following offenses: (1) sexual assault in the first
degree (Counts I and 11), in violation of HRS § 707-730(1) (a)
(1993 & Supp. 2003); (2) robbery in the first degree (Count 111),
in violation of HRS § 708-840(1) (b) (11) (1993 & Supp. 2003); (3)
burglary in the first degree (Count IV), in violation of HRS
§ 708-810(1) (c) (1993); (4) use of a firearm in the commission of
‘a felony (Count V), in violation HRS § 134-6(a) and (e) (Supp.
2003); and (5) assault in the second degree (Count VI), in
violation of HRS § 707-711(1) (a) (1993).
on March 8, 2004, Maugaotega entered a no contest plea
to all six counts. On April 21, 2004, the prosecution filed a
motion for extended terms of imprisonment, pursuant to HRS § 706-
*** FOR PUBLICATION ***
662(4) (a), see supra note 1.
D. Cr. No. 03-21-2725
on December 18, 2003, an O'ahu grand jury returned an
indictment against Maugactega in Cr. No. 03+1-2725, charging him
with the following offenses: (1) robbery in the first degree
(Counts I and Ii), in violation of HRS § 708-B40(1) (b) (ii) (1993
& Supp. 2003); (2) burglary in the first degree (Count III), in
violation of HRS § 708-810(1) (c) (1993); and (3) use of a firearm
in the commission of a felony (Count IV), in violation HRS § 134~
6(a) and (e) (Supp. 2003).
on March 8, 2004, Maugaotega entered a no contest plea
to all four counts. On April 21, 2004, the prosecution filed a
motion for extended terms of imprisonment, pursuant to HRS § 706-
662(4) (a), see supra note 1.
E. Cr. No, 3-1-2724
On December 18, 2003, an O'ahu grand jury returned an
indictment against Maugaotega in Cr. No. 03-1-2724, charging him
with burglary in the first degree (Counts I and II), in violation
of HRS § 708-810(1) (c) (1993).
on March 8, 2004, Maugaotega entered a no contest plea
to both counts. On April 21, 2004, the prosecution filed a
motion for extended terms of imprisonment, pursuant to HRS § 706-
662(4) (a), see supra note 1.
Fr. Sentencing
‘The circuit court conducted a sentencing hearing on May
17, 2004, during which it sentenced Maugactega in all five
criminal numbers and considered the prosecution’s five motions
+4 FOR PUBLICATION ***
for extended term sentencing. The circuit court concluded that
Maugactega was a multiple offender under HRS § 706~662(4) (a) and
orally granted each of the prosecution's motions for extended
terms of imprisonment as follows:
THE COURT: The next motion by the (prosecution) under
Criminal Nunber 03-1-1697 19a motion for extended term of
Smprisonnent pursuant to (HRS) Section 706-661 and 706-
Gex{d) (a); Under 661, subsection one, the extended term for
(murder in the (©
possibility of parole.
in Count Ty for the charge of [a)ttenpted (mjurder,
the court cites to [HRS] Section 703-500 and 706-662(4) (a)
ae a basis for ite ruling. Under 706-662(4) (a) the
Toguirenent must be that the defendant is a multiple
Otfender whose criminal actions are ao extensive that &
Sentence of imprisonment for an extended term is necest
for the protection of the public.
"Ine court shell not sake this finding unless the
defendant is being sentenced for two or nore felonies
Toaay, (Maugaotege) 1s being sentenced for 22 felonies, 14
Of which involved the named victim, twelve of those
Gavolving the use of a firearm in the commission of the
offense. Yet another offense, (p)ronoting [p]rison
{elontraband in the (f]irst (a)
[nlfecuction inco the prison of a sevice which is dangerous
in nature, to wit, a shankl,] and [this] represents
heightened danger, particularly when introduced into &
Prigon setting.
‘a careful examination of (Maugactega]’s conduct in the
period betwaen May and June of 2003 demonstrates a pattern
Be escalating violence. The. . . first offenses in late
May were burglaries, primarily involving a risk to property.
scond civster of offenses involved ~~ escalated to
Sea with the use of a semi-automatic weapon in
fortherance of crines.
‘The third cluster of offenses involved (sJexual
alssault and (zJobbery, once again facilitated by the use
of a firearm, The most violent of the offenses followed in
Sane 26th with the attempted murder of Eric Kawamoto. There
wore a totel of six naned victims of violent or potentially
Miolent crimes within the relative shore period between late
May and the end of June, 200:
‘Given the facts of these offenses, the court concludk
that (Maugsotega] is a multiple offender under [HRS §) 706~
Ge2(4) (a). These criminal actions were so extensive that
the sentence of imprisonment for an extended term is
hecessary for the protection of the public. Consequentiv.
Purevant to [HRS $$] 705-500 and 706-661, the court
extends the term of imprisonment in Count 1 to'life without
the possibility of parole; in Counts 11, 11 and V, to life;
7
**4 FOR PUBLICATION ***
An Counts 1V and VI, to 20 years each, and in Counts VII,
VITT, and TK to ten years each. Said extended terms are'to
Yun Concurrent with each other.
‘the’ [prosecution]’s next motion under Criminal Number
3-1-2724 ig 2 motion for extended term of imprisonment of
20 Inasmuch as the offenses under this criminal
onber are (blurgiaries in the [f]irst (degree, these are
Both Clase B felonies for which the extended term would be
20 years per offense. - =~
1 eer oethe multiple offender analysis of this court
that this court hes followed... is identical to that
earlier described in the offense of (a]ttenpted [murder in
the [s]econd. (4) egr
‘Given the facts of these offenses, the court concludes
[that Maugnotega] is a multiple offender whose criminal
actions were so extensive that a sentence of inprisonnent
for an extended tem 1a necessary for the protection of the
public. Section 706~662 subparagraph four. Therefore, the
‘Tocosscution)‘s motion for extended term of imprisonment in
Sh hr eount to 21
Next, (4n Ce. No. 03-1-2725,] the [prosecution] noves
(tended term of inprisonnent. As previously stated,
the facts of the offense(s] warrant this court to conclude
thst [Maugaotega] 2 2 multiple offender under [HRS § 706
}62 (4) {a) whose criminal actions were ao extensive that [2]
2ektence of imprisonment for an extended term is necessary
for the protection of the public. Consaquentivi,1 she.
fp moth e
=e Pursuant ro (HRS $] 708
teh the court extends the tere of imprisonment in Counts
and’ 11 to lige and in Count Tir to 20 years.
liek) [in Cr. No. 03-1-2726,) the (prosecution) noves
for extended term of inprisonnent as to all counts. As
previously stated, the facts of the offenses warrant this
Sourt to conciade that [Maugactega} is a multiple offender
Under [HRS § 706-]662(4) (a) Whose criminal actions were so
lentensive that the sentences of inpriscnment for an extended
form are mandated for the protection of the public.
‘Rirsuant te THRE S) 106-661, the court extends the
term of inprisonment £0 1ife as to Counts 1, Tf, TT, and ¥
land te 20 years as to Count IV and to ten yoars’as to Count
VE, seid terme to run concsrrent with one another.
We deb how to Criminal Number 03-1-2727.
The [prosecution] ‘then moves for extended ter of
imprisonment. As previously stated, the facts of the
Offense werrant this court to conclude chat [Waugaotega) is
Gimultiple offender under (HRS $ 106"] 6624) (a) wbe
Criminal actions were so extensive that the sentence of
Geprisonment for an extended term is necessary for the
‘** FOR PUBLICATION ***
protection of the public.
erm of inbrisooment in (cr. Newt Os-1-2727 is aranted..
Parsuant to [HRS §] 706-661, this court extends the term of
Imprisonment to 20 years as’ to Count 7
(emphases and brackets added.) Maugaotega neither argued
generally that the circuit court was without authority to impose
extended prison terms nor interposed 2 specific Apprendi
objection to the circuit court’s imposition of extended terns of
imprisonment.
on September 8, 2004, the circuit court filed its
written findings of fact (FOFs), conclusions of law (Cols), and
orders granting the prosecution's motions for extended terms of
imprisonment as a multiple offender, wherein the circuit court
entered the following identical FOFs and COLs as to each Criminal
Number:
uwpnics oF ract
1. Mies Maugaotege, dr. is “multiple offender”
RESTIRATBEAreCGs°%bccasse on hay 1101, 2004, before the,
Honorable Fatrick W Border, seid Defendant was sentenced
for two or more felonies, to wit:
count 1: Attempted Murder in the Second
Desree
count 11: Carrying, Using or Threatening to
Use a Firearm in the Commission of =
Separate Felony.
Robbery in the First Degree
Burglazy in the First Degree
Carzying, Using or Threatening to
Use a Firesrm in the Commission of &
count
Count.
Coun
Separate Felony.
count VI: Place to Keep Pistol or Revolver
count Vit Promoting ® Dangerous Drug in the
Third Degre
count Vint: Promoting s Dangerous Drug in the
Third Degree
count Unlawful Use of Drug Paraphernali.
‘FOR PUBLICATION
Cee Mo, 03-1-2726
count 1: Burglary in the First Degree
count IF Burglary in the First Degree;
Gea Nos 0361-2725
count I: Robbery in the First Degree
count 1 Robbery in the First Degree
Count 12 Burglary in the First Degree
Count IV Careying, Using or Threatening to
Use a Fivearm in the Commission of
Separate Felony;
Se Nos 3-1-2726
count 1: Sexual Assault in the First Degree
Gount 11: Sexual Assault in the First Degree
Gount 11t+ Robbery in the First Degrs
Count Iv: Burglary in the First Degree
count, Carzying, Using or Threatening to
Use a Firearm in the Conmission of
Separate Felony
count VE: Aafault in the Second Degree; and
o 290
Promoting Prison Contraband in the First egret
2. Mits Maugactega, Jr. is a “multiple offender”
whose commitment for an extended term is necessary for the
Protection of the public because of the following facts:
a. Befendant has an extensive juvenile
criminal nistory.
b, Defendants criminality has continued
Geepite his prior contacts with the
criminal justice system.
cc. Defendant hes failed co benefit from the
criminal justice systen.
d. Sefendant has demonstraced a total
Gieregara for the rights of others and a
poor attitude toward the law.
Betendant has denonstrated a pattern of
Criminality whlch indicates that he is
Ulkely to be's reciaivist in that he
cannot conform his behavior to the
Eequirenents of the law
ft. Bae to the quantity and seriousness of the
Enatant offer
threat to the comunity and his long(~
Jterm incarceration is necessary for the
protection of the public-
10
; Defendant poses a serious
appeal in
**4 FOR PUBLICATION ***
‘CONCLUSIONS OF Lit
1. Based on the foregoing facts , the {court
concluded that she Defendant is a “multiple offender” within
Ene meaning of Section 706-622 (4) (aly H-R-8-y_ who:
Coenlenent for an extended term is necessary’ for the
protection of the public. Section 706-662(4), H.R.S.
on June 16, 2004, Maugaotega timely filed notices of
the aforementioned five criminal numbers.
[A] sentencing judge generally has broad
discretion in imposing a sentence. State ¥, Gaylord.
$e await 127, 143-48, 090 P.2d 1267, 1163-86 (1998)?
States. Valeza, 74 Baw. 424, 435, 842 P.2d 376,
Shs sy (1993). The applicable’ standard of review
for jentencing oF resentencing matters 1s whether the
Court committed plain and manifest abuse of discretion
Seite Gecteion.” Gavlord, 76 Hawai'i at 144, 990 P24
at 1184; State z. Kupukau, 71 Haw. 218, 227-28, 787
Pi2d 602, 687-08 (1990); State v. Murcav(,] 63/Haw.
432,25, 621 P.2d 334, 342-43 (1980); State w Fry, 62
we 286, 298, 602 Pe2d 13, 16 (1979)
Keaug 2. 'State, 79 Hawai't 261, 264, 901 P.2d 481, 494
(isss]. *{Flactors which indicate ‘a plain and manifest
Moose of diseretion are arbitrary or capricious action by
the judge ands rigid refusal to consider the defendant’ s
Sontentione,” “Erye 61 flaw. at 231, 602 P.2d at 17. Andy
SCigjeneeatiy, fo conetituce an abise it must eppear that
the court clearly exceeded the bounds of reason or
Gisregarded rules or principles of law or practice to the
Substantial detrinent of a party 1itigant.”
Hawai'i at 204, 901 P.24 at 464 (quoting Gavlord, 7
ae 144, 890 P.2d at 118¢ (quoting Kumokau, 71 Haw.
227-28, 767 P.2d at 688)).
State v. Kaua, 102 Hawai'i 1, 7, 72 P.3d 473, 479 (2003) (quoting
State v. Rauch, 94 Hawa:
(brackets
B.
4315, 322, 13 P.3d 324, 331 (2000)
and ellipsis points in original).
seats
ce answer questions of constitutional lew ‘by
exercising our own independent. judgment based ont
SE 'the case,’ and, this, questions of constitutional
Gre reviewed on appeal “onger the ‘right/wrong’ standard,
rP5S hawaii 7, 100, 997 P-2d 23, 26 (2000)
facts
an
FOR PUBLICATION **#
(citations omitted) .
102 Hawai'i at 7, 72 P.3d at 479 (quoting State v. Aplaca,
96 Hawas's 17, 22, 25 P.3d 792, 797 (2001)).
C, Statutory Interpretation
[t]he interpretation of a statute.
As a question of law reviewable de nove.”
4 Wawas't 1, 10, 928 P.2d 843, 852
(1996) (quoting State v, Camara, @1 Hawai'i 324,
328, 916 P-2a 1225, 1230 (1898) (citations
onitted)).” See alao State vTovemura, 60
Hawai 8," 16, 904 P.2d-€95, S03 (1998); State
wecliiga, 79 siawai't i, 3, 897 P.2a 928, 930
(1995); state v. Nakata, 76 Hawai'i 360, 365,
278 F.2d 699, TOF (1994). .
Gravy. Adainistrative Director of the Court, 64 Hawal's
ise, 16a, 931 P-26 580, 586 (1557) (sone brackets added and
sone in Original). See alec State x, Sota, 84 Hawai'i 229,
2536, 933° P.24 66, 73 (1997) Furthermore, our statutory
Construction is quided by established roles!
hen construing @ statute, our forenast obligation is
fo ascertain and give effect to the intention of the
Tegisiature, which is to be obtained primarily from
the language contained in the statute itself. And we
Bust read statutory language in the context of the
entire statute and construe it in s manner consistent
with ies purpose.
‘When there 18 doubt, doubleness of meaning, or
Andistinetiveness or uncertainty of an expression used
Sha statute, an anbiguity exists. .
In construing an ambiguous statute, “(t]he
meaning of the ambiguous words may be sought by.
Guanining the context, with which the ambiguous words,
Phrases, and sentences may be compared, in order to
‘certain their true meaning.” HRS § i-15(1)
((1993)]. Moreover, the courts may resort to
Gxtrinale aide in determining Legisietive intent. One
jenue is the use of legislative history as en
interpretive tool.
Grav, #4 Hawai'i at 148, 931 P.2d at $90 (quoting state va
‘Tovomura, 60 Hawai'i €, 18-19, 904 P.2a 893, 903-04 (1995))
{brackets and ellipsis points in original) ‘(footnot.
omitted), ‘This court may ols0 consider "(t]he reason and
Spirit of the law, and the cause which induced the
Legislature to enact it... to discover its true meaning,
ns § 1-15(2) (1993). “Laws in path gatexia, or upon the
Sane subject matter, shall be construed with reference to
ich other. What is clear in one statute may be called pon
Sncaia to explain what is doubtful in another.” HRS § 1-16
11983),
a2
+## FOR PUBLICATION *
Kaua, 102 Hawai'i at 7-8, 72 P.3d at 479-480 (quoting Rauch, 94
Hawai'i at 322-23, 13 P.3d at 331-32 (quoting State v. Kotis, 92
Hawai'i 319, 327, 984 P.2d 78, 86 (1999) (quoting State ve
Dudoit, 90 Hawai'i 262, 266, 978 P.2d 700, 704 (1999) (quoting
State v. Stocker, 90 Hawai'i 85, 90-91, 976 P.2d 399, 404-05
(1999) (quoting Ho vs Leftwich, 88 Hawai'i 251, 256-57, 965 P.2d
793, 798-99 (1998) (quoting Korean Buddhist Dae Won Sa Temple v.
Sullivan, 87 Hawai'i 217, 229-30, 953 P.2d 1315, 1327-28
(1998)))))))-
D. Blain Error
ctwe may recognize plain error when the error
connitted affects substantial rights of the defendant.‘
Elace vecosdeizo, 99 Hawaii 390, 405, 56 P.3d 692,707,
‘Beniedy 100 Hawai"t 14, 58 P.3d 72 (2002)
(quoting State va cenking, 93 Mawai'i 87, 101, 997 F.2d 13,
27° (2000) (quoting State v, Cullen, 86 Hawai 1, 8, 946
P24 955, 962 (1997))).- fee algo (Hawas't Roles of’ Penal
Procedure] RPE Rule 52(b) [1998], ("Plain error or defects
affecting substantial rights may be noticed although they
Mere not brought to the attention of the court.*)«
‘State v. Hauge, 103 Hawai'i 38, 48, 79 P.3d 131, 141 (2003)
(quoting State v. Matias, 102 Hawai'i 300, 304, 75 P.3d 1191,
1195 (2003))
IIT. DISCUSSION
Maugaotega argues that the circuit court erred in
granting each of the prosecution’s five motions for extended
terms of imprisonment because the finding that extended terms
were necessary for the protection of the public was not submitted
to a jury and proved beyond a reasonable doubt, in violation of
the sixth amendment to the United States Constitution.
Maugactega urges this court to reconsider its holding in Rivera,
33
‘+4 FOR PUBLICATION ***
submitting that “(2)llowing a judge to pick and choose which
factors [a]ze ‘intrinsic’ or ‘extrinsic’ leads to the same type
of arbitrariness and absurdity” that the United States Supreme
Court sought to curb in Apprendi and Blakely. We believe that
Maugaotega’s arguments are without merit.
Booker addressed the constitutionality of the statutory
federal sentencing guidelines in the context of the Supreme
Court's recent decisions in Apprendi and Blakely. The Booker
majority held (1) that the federal sentencing guidelines are
subject to Apprendi constraints and (2) that the provisions of
the Federal Sentencing Act making the sentencing guidelines
mandatory were incompatible with Apprendi, thereby requiring
severance of those provisions and rendering the guidelines
advisory only. In our view, Booker’s holdings -- interpreted
through the lenses of Apprendi and Blakely -- are limited to the
mandatory nature of the federal sentencing guidelines.
‘Therefore, inasmuch as Hawaii’s extended term sentencing scheme
is purely discretionary and not mandatory, we believe that
Booker, in itself, does not affect this court’s “intrinsic-
extrinsic” analysis as enunciated in Kaua and reaffirmed in
Rivera.’
Booker’ s case illustrates the mandatory nature
of the Guidelines.” the ury convicted nin of
Jing at least 50 gtans of crack in violation of
EP" fonited States Code) '§ 42 (b) (1) (A) (144) Based on
evidence that he had 92.5 crams of crack in his duffel
Bag. Under these facts, the Guidelines specified an
2 or an analysis of the impact of Buorandi and its progeny on our
extended term sentencing schene, as well a history of Hawaii's indetersinate
Sentencing systen, see State v. Kaua, 102 Hawari 1, 72 P.3d 473 (2003), and
State v, Rivera, 106 Hawari 146, 102 P.3a 1044 (2004).
a4
‘*** FOR PUBLICATION *#*
offense Level of 32, which, given the defendant's
criminal history category, authorized a sentence of
210-to-262 months. ge [United States Sentencing
Guidelines] § 201-1(c) (8). Booker’s is 3
Foncof-the-nill drug case, and does not present any
factors thet were inadequately considered by the
Commission. The sentencing judge would therefore have
been reversed had he not inposed a sentence within the
evel 32 Guidelines range.
Booker’ actual sentence, however, was 360 month
gunost 10 yeare longer than the Guidelines ange supported
by the jury verdict alone, To reach this senvenct
Stage tound faces beyond those found by the jury: nanely,
Ehat Booker possessed S66 grams of crack in addition to the
52.5 grams in his duffel bag. The jury never heard any
evidence of the additional arug quantity, and the judge
found {e true by a preponderance of the evidence. Thus,
just as in Blakely, “the Jury's verdict alone does not
Authorize the sentence. The Judge acquires that authority
‘only upon finding some additional fact.” 542 U.Sey at —
324's.ce-y at 2530. There ia no relevant distinction
betwean the sentence imposed pursuant to the Washington
lseavutes in Blaxaly and the sentences imposed pursuant to
the Federal Sentencing Guidelines in these cases.
Booker, 125 S.ct. at 751.
Justice Stevens, writing for the majority in the first
part of the Court’s opinion in Booker, explained that
[A]E the Guidelines as currently written could be read 2
merely advigory provisions that recommended, rather than
Fequized, the selection of particular sentences in response
fo differing sets of facts, their use would not implicate
the Sixth ARendsent. We have never doubted the authority of
a udae to exercise brosd discretion in imposing a sentence
‘SIMUL atacutory range,
Rooker, 128 S.Ct. at 750 (citations omitted) (emphases added) .
Justice Breyer, writing for the majority in the Court’s
second holding in Booker, explained why, in light of the Court's
first holding, it was necessary to excise the provisions of the
Federal Sentencing Act that made the guidelines mandatory:
As the Court today recognizes in its first opinion in
these cases, the existence of § 3553(b) (1) is a necessary
condition of the constitutional violation, that is to say,
without this provision -~ namely the provision that makes
“the relevant sentencing rules - . = mendat:
binding requirenents on all sentencing judg.
statute falls outside the scope of Auaxandi’s requirement.
a5.
‘#4 FOR PUBLICATION *#*
‘The remainder of the Act “function(s) independently.”
without the smandatory” provision, the Act nonetheles:
Teguires judges to take account of the Guidelines together
ith other sentencing goals. See 18 0.S.C.A. § 3553(8)
(Supp, 2004). the Act nonetheless requires judges to
Soesider the Guidelines "sentencing range established for
the applicable category of offense committed by the
appiicable category of defendant,” § 3553(a) (4), the
pertinent Sentencing Commission policy statements, the need
Ro vaveld unwarranted sentencing disparities, and the need to
provide restitution to victims, $5 3553(a) (1), (3), (5)~(7)
finein ed. and Supp. 2008)
dudaes 20 inpose sentences that reflect the seriousness of
the offense, promote respect for the lew, provide just
punishment, afford adequate deterrence,
Ghd effectively provide the defendant with needed
‘Gducetional or vocational training and medical care.
$3583 (al (2) (main ed. and Supp. 2004).
Booker, 125 S.Ct. at 764-65 (some citations omitted) (emphases
added). ‘Thus, the declaration by both majorities in Booker (1)
that rendering the federal sentencing guidelines advisory rather
than mandatory remedies their unconstitutionality and (2) that
the Federal Sentencing Act continues to require judges to impose
sentences that, among other things, “protect the public”
essentially erases discretionary extended term sentencing schemes
such as Hawaii's from the decision’s purview.
Hence, Booker does not alter the applicability of Kaua
‘and Rivera to Maugaotega’s current challenge of his extended term
sentences under HRS § 706-622(4) (a) and disposes of his argument
on appeal.
Kaus reaffirmed the *intrinsle-exteinsic” analysis first
Eetlcolated by this court in State v. Schrosder, 76 Hawai's
$15,800, F.2d 192 (1998), and feafTirmed in hate x. Tatova,
51 hawai's 261, 982 P.24 890 (1999), and rejected the
Gefendant’s argunent that Auprendl ‘mandates that a “multiple
Offender” determination, for purposes of HRS
$ s06-862 (4) (al, most be made by the trier of fact, holding
{al thet fRE § 706-662 passed constitutional muster under
the Howai'l and United States Constitutions and (2) chat
Sfeine facts foundational to...» extended terns of
Imprisonment ss pursuant to HRS § 706-662(6) (a), fell.
outside the Aipiendi role, and, thus, the ultinate finding
16
‘#04 FOR PUBLICATION
‘thet [a defendant) was o ‘multiple offender’ whose extensive
Erininel actions warranted extended prison ters was
Sroperly within the province of the sentencing court.”
Kaun 102'Hiawai's at 13, 72 F.3d at 485. In so holding,
this court noted
Ld, at 12-13, 72 Pi3d at 486
The fundamental distinction between the nature of the
predicate facts described in HRS $§ 706-662(1), (3),
eee (aly - sc on the one hand, and those described in
ARS $6 706-862(5) and (6), .... on the other.
Specifically, the facts at issue in rendering an
extended term sentencing determination under RS
$5 Joecseatil, (3), and. (4) implicate considerations
Sinplevely *extrinsie” to the elenents of the offense
with snich the defendant was charged and of which he
Mes convicted? accordingly, they should be found by
the sentencing Judge in accordance with {
Huesean{, 60 Haw. 71, 508 P.2d 394” (1979),] and ite
Progeny, The facts at issue for purposes of ERS
$5 fow-sea(s) and (6), however, are, by thelr very
Pature, “intrinsic” to the offense with which the
Getendant was charged and of which he has been
‘Recoraingiy, they must be found beyond a
Goobt by the trier of fact in order to
Gefendast his constitutional rights to
stfora tl
Procedural due process and atrial by jury. Tafova,
Bitawai't at 271-72, 982 P.24 at. 900-01; Schroadar,
36 Hawai'i st 528, 860 P.20 at 203.
5 Comp
added) -
Hauge, 103 Hawai'i at 59-60, 79 P.3d at 152-53 (emphases deleted)
(brackets in original).
Rivera reaffirmed our reasoning in Kaua
by holding that “Hawaii's extended term sentencing scheme is not
incompatible with Blakely v. Washington, inasmuch as (1) Blakely
addresses only statutory ‘determinate’ sentencing ‘guideline’
schemes, and (2) this court’s ‘intrinsic-extrinsic’ analysis
culminating in Kaua is compatible with both Blakely and
Apprendi.”
106 Hawai'i at 150, 102 P.3d at 1048. Consequently,
Rivera stated that “this court’s Kaua analysis retains its
vitality with respect to Rivera’s present challenge of HRS
§§ 706-662(1) and (4) (a) and disposes of his claim that the
circuit court erred in imposing extended term sentences.” 106
Hawai'i at 157, 102 P.3d at 1055.
a
**4 FOR PUBLICATION ***
We acknowledge that the federal sentencing guidelines
differ qualitatively from Hawaii's extended term sentencing
scheme, in that the federal guidelines do not prescribe or
suggest sentences that exceed the statutory maximum as set forth
in the respective federal criminal statutes themselves, wherea
Hawaii's discretionary extended term sentencing schene generally
doubles the relevant statutorily-prescribed indeterminate maximum
prison term. Nonetheless, we do not believe that Booker alters
the essential holdings of Apprendi and Blakely. The factor that
rendered the federal sentencing guidelines unconstitutional was
its mandatory nature.
(t]he Act without {ts “mandatory” provision and
related language ‘renaine consistent with Congress’ initial
fand basic sentencing intent. Congress sought to "provide
Certainty snd fairness in masting the purposes of
Sentencing, [while] avoiding unwarranted sentencing
Gisparities .”- . [and) maintaining sufficient flexibility
fo permit. individualized sentences when warranted.” 26
Orste. $991 (b) (1) (B) [od
Rooker, 125 S.Ct. at 767 (some brackets added and sone in
original).
In the present matter, the circuit court was first
required to consider the factors set forth in HRS $ 706-606
(1993)? “in determining the particular sentence to be imposed.”
> uRS $ 706-606 provider
Factors to be considered in imposing # sentence. The court.
t sed. shi
‘sonsider:
Tt) me nature and circumstances of the offense and the
history and characteristics of the defensant;
(2) The nead for the sentence inoosed:
{a} “fo reflact the seriousness of the offense, to
promote respect for law, and to provide just
Bunishsent for the offense;
() Fo afford adequate deterrence to criminal
(continued...)
a8
*** FOR PUBLICATION *1
Among the traditional sentencing considerations set forth in HRS
§ 706-606 is the “need for the sentence imposed . . . [to
protect the public from further crimes of the defendant.” See
HRS § 706-606(2) (c). As we explained in Rivera,
inasmuch ae both HRS §§ 706-606 and 706-662 require the
ctermination of whether the sentence inposed 1s needed to
Protect the public, the sole . . . factor, beyond those
Elveady enumerated in IRS § 7062606 and already considered
by the sentencing court, which extends an indeterminate
prison term pursuant to HRS § 706-662(4) (a), is the fact
Phat a defendant is a multiple offender- The multiple
offender determination, pursuant to HRS § 706~662(4) (a),
Sirtors the pricr conviction exception in Apprendi because
the defendant has either already pleaded guilty, and thereby
Adnitted guilt, or the trier of fact has found beyond a
Feasonable doubt that the defendant has committed tuo or
hore felonies for which he i currently being sentenced.
See Apprendi, $30 U.S. at 48s, 120 s.ct. 2348 (reasoning
Ehat both the “certainty that’ procedural safeguards attached
fovany “act” of prior conviction, and the reality that (the
Gefendant] sid not challenge. : that ‘fact (/)" . .
aitigated the due process and Sixth Amendment Concerns
Otherwise inplicatea in allowing a judge to determine 3
Sfact’ increasing punishment beyond the maximum of the
statutory range")
106 Hawai'i at 163, 102 P.3d at 1061.
Because Booker merely struck down the compulsory nature
of the otherwise legitimate federal sentencing guidelines scheme,
Hawaii’s wholly discretionary extended term sentencing apparatus
does not fall within Booker’s purview. That being so, we hold
continued)
conduct
© fur
‘efendant anc
(a) Forprovide the defendant with needed educational
Gr vocational training, medical care, or other
Correctional trestment in the most effective
(3) The Kinds of sentences available; and
(3) The need to avoid unwarranted sentence disparities
mong defendants with similar records who nave been
found guilty of similar conduct.
as
*## FOR PUBLICATION *#*
that Booker has no bearing on this court's disposition of the
present matter.
TV. CONCLUSION
In light of the foregoing analysis, we affirm the
judgments and sentences of the circuit court.
On the briefs: Gorm
Karen T. Nakasone,
Deputy Public Defender, .
for the defendant-appeiiant BP hrrnar—
Nits Naugaotega, JF.
Janes. Anderson, Ree Oreo
Babul BGEEECEng attorney,
2b Ele pistacitiappelioe
See Seance
20
|
fc963caf-2e9d-4e85-9fd1-afce7f8ef9f4 | Ramos v. State | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION ***
No. 26936
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
LUIS 0. RAMOS, Plaintiff-Appellant
STATE OF HAWAI'I, Defendant-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO, 4-1-1227)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that (1) the
suprene court clerk's office informed Appellant, by letter dated
February 14, 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.
DATED: Honolulu, Hawai'i, June 8, 2005.
nae
|
0f43843f-5710-4d5d-af1d-2c0bba7cc4af | Yamagata v. State Farm Mutual Automobile Insurance Company. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HANAT'I
‘o00-
DEBRA YAMAGATA and JOSEPH T. TOMA, Individually and as the
Special Administrator for the ESTATE OF ROSS YAMAGATA-TOMA,
Plaintiffs-Appellants,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, HERB USHIRODA,
JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5,
DOE PARTNERSHIPS 1-5, DOE ENTITIES 1-5,
and DOE GOVERNMENTAL UNITS 1-5,
No. 25757
as
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO. 00-1-0530)
MAY 26, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
FEY,
Plaintiffs-appellants Debra Yamagata and Joseph 7. Toma
(individually and as the Special Administrator for the Estate of
Ross Yanagata~Toma) [hereinafter collectively, the plaintiffs)
appeal from the Circuit Court of the Second Circuit’s April 7,
2003 final judgment.! As points of error, the plaintiffs argue
that the circuit court erred in granting summary judgment in
favor of defendant-appellee State Farm Mutual Automobile
} me Honorable Shackley F, Raffetto presided over this matter.
*** FOR PUBLICATION ***
Insurance Company (State Farm) and denying the plaintiffs’
cross-motion for summary judgment.
The sole issue on appeal is whether the plaintiffs are
entitled to Accidental Death Benefits for the death of their
teenage son, who died while driving his metorcycle. Based on the
following, we vacate the circuit court’s grant of summary
Judgment in favor of State Farm and remand with instructions to
grant the plaintiffs’ cross-notion for summary judgment as to the
applicability of death benefits coverage.
1. BACKGROUND
Factual Backaround
On October 6, 1998, eighteen-year-old Ross Yamagata~
Toma was killed while driving a motorcycle on Ka'ahumanu Avenue
in Wailuku, Maui. The plaintiffs allege that the accident
occurred when the driver of a pickup truck driving in the
opposite direction made a left-hand turn in front of Yamagata~
‘Toma.
At the time of Yamagata~Toma’s death, Yamagata-Toma’s
parents had three automobile insurance policies with State Farm.
Yamagata~Toma lived with his parents and was therefore an
“insured” under these policies; State Farm paid the plaintiffs
underinsured motorist (UIM) benefits but denied the plaintiffs
death benefits coverage.
*** FOR PUBLICATION ***
State Farm based its rejection of death benefits
coverage on the following policy language:
WERE 18 NO COVERAGE FOR BODILY INJURY:
5." "fo THE OPERATOR OF A MOTORCYCLE OR MOTOR SCOOTER
INVOLVED IN THE ACCIDENT.
‘The policy defined “bodily injury” as “bodily injury to a
person and sickness, disease, or death which results from
ite”
‘The plaintiffs argued (and continue to argue) that the
exclusion cited by State Farm is ambiguous and that the exclusion
should therefore be construed against State Farm. Alternatively,
the plaintiffs contend that the exclusion is unambiguous and that
it clearly does not apply to them. The plaintiffs also argue
that, pursuant to Hawaii’s Motor Vehicle Insurance Law, Article
10C of Hawai'i Revised Statutes (HRS) chapter 431, death benefits
coverage is a remedial, personal, portable coverage that should
be treated in a similar manner as UIM or uninsured motorist (UM)
benefits; because the plaintiffs were entitled to UIM benefits,
‘they argue, they are also entitled to death benefits.
B. Procedural Backaround
on October 6, 2000, the plaintiffs filed a complaint
against State Farm requesting, inter alia, a declaration that the
plaintiffs were entitled to death benefits coverage.’ The
+ In addition to the death benefits coverage issue, the plaintiffs’
fixet anended complaint #iso sought Fesolution of @ dispute over the amount of
™ (Continued. .«)
*** FOR PUBLICATION ***
plaintiffs filed their first amended complaint on November 21,
2000. State Farm answered the complaints and, on June 14, 2001,
moved for summary judgment. On the same day, the plaintiffs
filed their cross-motion for summary judgment on the issue of
death benefits coverage.
On July 17, 2002, after hearing the parties’ arguments
on their respective motions for summary judgment, the circuit
court granted summary judgment in favor of State Farm. The
circuit court entered judgment in favor of State Farm on
September 24, 2002. The plaintiffs filed their notice of appeal
on September 30, 2002; however, this court dismissed the
plaintiffs’ appeal on March 24, 2003 for lack of appellate
jurisdiction because the circuit court’s judgment did not satisfy
the separate document requirement of Hawai'i Rules of Civil
Procedure (HRCP) Rule 58.” On April 7, 2003, the circuit court
24. continved)
IM benefits to which the plaintiffs were entitled. The instent appeal,
however, focuses on death Benefits only.
O RCP Rule $8, entitled “ERTRY OF JUDGMENT," provides:
unless the court otherwise directs and subject to the
provisions of Rule 54(b), judgeent upon the verdict of «
Sury shail be entered forthwith by the clerk} but the court
shall direct the appropriate judgment to be entered upon a
Special verdict or upon a general verdict accompanied by
Gnewers to interrogatories returned by a jury pursuant ©o
Rule 43, Wmen the court directs that a party recover only
money or costs or that all relief be denied, the clerk shell
fenter judgment forthwith upon receipt by him of the
Gizection; but when the court directs entry of judgment for
other relief, the judge shall promptly settle or approve the
form of the Judgnent and direct that it be entered by the
clerk. The filing of the Judgment in the office of the clerk
(eontinued. «.)
*** FOR PUBLICATION ***
entered final judgment as to all claims and parties, and the
plaintiffs filed a second notice of appeal the following day.
II. STANDARDS OF REVIEW
‘Summary Judament
We review the circuit court’s grant or denial of
summary Judgment ge nove, await Commun
94 Hawai 233, 221, 11 P.3d 2, 9 (2000)
‘The standard for granting « notion for summary judgnent se
settles:
(s)unmary Judgment, 1s appropriate 4f the
Judgment 25 2 matter of law. A fact is material
Ef proof of that fact would have the effect of
establishing or refuting one of the essential
Glenents of 2 cause of action or defense
Ssserted by the parties. The evidence must be
‘Hewed in the Light most favorable to the non=
Roving party. In other words, we mist View all
Df the evidence snd the inferences drawn
Therefron in the light most favorable vo the
party opposing the notion
Ad, (citations and internal quotation marks omitted).
Goon vy. City & County of Honolulu, 98 Hawai'i 233, 244-45,
47 P.3d 348,
389-60 (2002) (alteration in original).
Statutory Interpretation
statute denovs.
Pisa 572). S63 (2001)
+ seontinved)
Constitutes the entry of the judgment
ie review the circuit court’s interpretation of a
96 Hawaii 03, 98, 26
‘Dar statutory construction is guided
stabltaned rule
in construing @ statute, cur forenost obligation is
to ascortain and give effect to the intention of the
Legislature, which is to be obtained primarily from
the language contained in the statute itself. And we
must read statutory language in the context of the
and the judgnent is
hot effective before such entry. ‘The entry of the judgment
Shall not be delayed for the taxing of costs. Every judgment
shell be eet forth on
parate document.
*** FOR PUBLICATION ***
entire statute and construe it in 2 manner consistent
with its purpose.
Ads at 94-95, 26 P.3d at S83
Coon, 98 Hawai's at 245, 47 P.3d at 360. See also HRS 5 1-16
(1993) (“Laws in pari materia, or upon the same subject matter,
shall be construed with reference to each other. What is cll
in one statute may be called in aid to explain what is doubtful
in another.").
TIT. DISCUSSION
‘The circuit court erred in granting summary judgment in
favor of State Farm because HRS § 431:10C~302 (Supp. 2004),
entitled “Required optional additional insurance,” required State
Farm to offer death benefits coverage for death arising out of
all motor vehicle accidents, regardless of whether a motorcycle
was involved. Therefore, we vacate the circuit court’s April 7,
2003 final judgment and remand with instructions to grant summary
judgment in favor of the plaintiffs.
HRS § 431:10C-302 provides in relevant part:
(a) In addition to the motor vehicle insurance
coverages described in section 431:10C-301, every snsurer
{Esuing a motor vehicle insurance policy shall make
available fo the insured the following optionsl insurance
Under the following conditions. «=
isi" fin option in writing for minimum coverage for
death benefits for death arising out of a motor
han anount of §25,000, to De
paid-tethe surviving spouse, for the benefit of
The spouse and dependent children, or if there
fare no surviving spouse or dependent children,
then'to the estate. Coverage shal! also be made
‘This statute was last amended in 1998,
6
*** FOR PUBLICATION ***
available for increased death benefits in
increments of $25,000 up to $100,000; however,
nothing shall prevent an insurer’ from making
available higher Limits of coverage.
(Emphasis added.) The term “motor vehicle accident” is defined
in HRS § 431:10C~103 (Supp. 2004) as “an accident: arising out of
the operation, maintenance, or use of a motor vehicle, including
an object drawn or propelled by a motor vehicle.”*
Reading these provisions together, State Farm was
required to offer death benefits coverage for any death arising
out of the operation, maintenance, or use of @ motor vehicle.
Although HRS § 431:10C-302(a) (5) would permit State Farm to
exclude death benefits coverage arising out of a “motorcycle
accident,” defined by HRS § 431:10G-101 (1993) as “an accident
arising out of the operation, maintenance, or use of a
motorcycle, but not involving a motor vehicle,” the plain
Language of HRS § 431:10C~302(a) (5) prohibits State Farm from
writing its insurance policies so as to restrict death benefits
coverage to certain types of motor vehicle accidents. See State
ve Richie, 88 Hawai'i 19, 30, 960 P.2d 1227, 1238 (1998) ("YIt
is a cardinal rule of statutory interpretation that, where the
* Although the Legislature anended HRS § 431:20C-103 several times in
the definition of “moter vehicle accident” aid not change
proceedings. gg HAS § 431:10c-103 (1993).
© see algo HRS § 431:10C-103 (excluding “notorcycles and motor scooters”
trom the definition of “motor vehicle” and defining "motor vehicle accident”
fe "an accident arising out of the operation, maintenance, or use of s motor
Yensele")
>
*** FOR PUBLICATION *
terns of a statute are plain, unambiguous and explicit, we are
not at Liberty to look beyond that language for a different
meaning. Instead, our sole duty is to give effect to the
statute’s plain and obvious meaning." (Quoting Alvarez vs
Liberty House, Inc, 85 Hawai'i 275, 278, 942 P.2d $39, 542
(1997).)). As we have stated, {1}nsurers have the same rights
as individuals to limit their liability( ] and to impose whatever
conditions they please on their obligation, provided they are not
Dairy Rd. Partners v. Island Ins. Cou, Utd., 92 Hawa:
992 P.2d 93, 106 (2000) (emphasis added) (second set of brackets
"1 398, 411,
in original) (citations and internal quotation signals omitted) .
In this case, Yamagata~Toma’s death arose out of a
collision between a motor vehicle and a motorcycle. The
collision, by statutory definition, was a motor vehicle accident.
‘The fact that Yamagata-Toma was operating a motorcycle at the
time he was involved in the motor vehicle accident is not
relevant, as State Farm was required by statute to offer death
benefits coverage for death arising out of a motor vehicle
accident. Therefore, the circuit court erred in granting summary
judgment in favor of State Farm.
IV. goNcLUSION
Based on the foregoing, we vacate the circuit court's
April 7, 2003 final judgment and remand with instructions to
*** FOR PUBLICATION
grant the plaintiffs’ cross-motion for summary judgment as to the
applicability of death benefits coverage.
On the briefs: Gyro
Matthew S. Kohm
for plaintiffs-appellants Beam BoLernen
Lisa M. Ginoza
(WeCorsiston Miller Resette C1. Naectee paree
Mukai MacKinnon LLP) for
defendant-appellee
State Farm Mutual Automobile ao
Insurance Company
Yanen «. Dict, +
|
4832b732-9f42-4f42-a88d-ea07b30d5ead | State v. Brittain | hawaii | Hawaii Supreme Court | ‘+*# NOT FOR PUBLICATION ***
wo. 26688 a
IN THE SUPREME COURT OF THE STATE OF HAWAT'ISSIS ch
e5i2
Sale
ts
STATE OF HAWAI'I, Plaintiff-Appellee,
ase
GEORGE BRITTAIN, JR., Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NOS. 03-1-0365(2) and 04-1-0084(2))
MEMORANDUM OPINION
(By: Moon, C.J., Levinson, Nakayama,
Acoba, and Duffy, JJ.)
‘The defendant-appellant George Brittain, Jr. appeals
from the judgment of the circuit court of the second circuit, the
Honorable Shackley F. Raffetto presiding, filed on June 10, 2004,
convicting him of and sentencing him for the following offenses:
(2) 4n Ce. No. 031-0365 (2), (a) unauthorized control of a
propelled vehicle, in violation of Hawai'i Revised Statutes (HRS)
§ 708-836 (1993 & Supp. 2003), and (b) theft in the second
1, in violation of HRS § 708-831(1) (b) (1993 & Supp. 2003)?
and (2) in Cr. No, 04-1-0084(2), (a) possession of a prohibited
+ we note that Cr. Nos. 03-1-0365(2) and 0f-1-0084(2) are unrelated
yP and that the circuit court entered ©
Slogle judgnent of conviction ss to Doth criminsl numbers. Brittain’s appeal
Felates solely to the circuit court's imposition of mandatory minimun terms of
Imprisennent in Cr. Mo. 0¢-1-0084 (2).
aaa
‘*## NOT FOR PUBLICATION ***
Weapon, in violation of HRS § 134-8(a) (1993),* and (b) place to
keep unloaded firearm, in violation of HRS § 134-6(c) (1993 &
Supp. 2003).
on appeal, Brittain contends that the circuit
+ URS § 134-8 provides An relevant part
) The manufacture, possession, sale, barter, trade, gift,
transfer, or acquisition of any of the following is’ prohibited:
Sssault pistols, except as provided by section 134-46)? automatic
firearms; rifies with barrel Lengths Less than sixteen inches;
Shotguns with barrel lengths less than eighteen inches; cannons
Buftiers, sliencers, or devices for deadening or muffiing the
found of discharged firearms; hand grenades, dynamite, blasting
Gaps, bore, oF Bonbsholis, or other explosives; or any type of
ammunition ox any projectile component thereof coated with teflon
Sr any other similar coating designes primarily to enhance its
Sapablaity to penetrate metal or pierce protective armory and any
‘ype of anminition or any projectile component thereof designed or
Intended to explode or segnent upon impact with its target.
(ay ‘Any’ person violating subsection (a) or (b) shall be
guilty of a Glass © felony and shall be imprisoned for # term of
Hye years withost probation. Any person violating subsection (c)
Shall be guilty of « misdemeanor except when a detachable magazine
Prohibited under this section if possessed while inserted into a
Pistol in which cage the person shall be guilty of @ cl
Felony.
> BRS § 134-6 provides in relevant part:
(e) Except az provided in sections 134-5 and 134-9, all,
firearms and ammunition shall be confined to the possessér’s place
Of business, residence, er sojourn) provided that it shall be
awful to carry unloaded firearns or ammunition or both in an
enclosed container fron the place of purchase to the purchaser’ s
Elace'Ge business, residences Or'so}cueny or between these places
Spon change of place of business, residence, or sojourn, or
Between these places and the following: a place of repair) a
target range; @ licensed dealer's place of business; an organized,
Scheduled firearms show or exhibity a place of formal hunter oF
firearm use training or instruction; or @ police station.
Stnelosed container" means a Tigidly constucted receptacle, or a
commercially manufactures gun case, or the equivalent thereof that
Sompietely encloses the firearm.
le} Any person violating subsection (a) or (b) shall be
guilty of a class A felony. Any person violating this section by
Garrying of possessing a loaded firearm or by carrying oF
Hing @ loaded oF unloaded pistol or revolver without @
weed a2 provided in section 13¢-9 shall be guilty of 2
Glass B felony. Any person violating this section by carrying or
(cont inved.
2
##% NOT FOR PUBLICATION *#*
court erred in imposing mandatory minimum terms of imprisonment,
pursuant to HRS $§ 706-660-1(3) (d) (1993),* in connection with
his convictions of possession of a prohibited weapon and place to
keep unloaded firearm in Cr. No, 04-1-0084(2), as evidenced by
(2) the plain language of HRS § 706-660.1, (2) the statute’
legislative history, (3) an in pari materia reading of HRS
95 706-660.1 and HRS $§ 134-6 and 134-8, and (4) the “rule of
lenity.”*
24. -continued)
possteaing an unloaded firearn, other than @ pistol or revolver,
Shall be guilty of a clase C felony
‘HRs $ 706-660.1 provides in relevant part:
Sentence of imprisonaent for use of a firearm, semiautomatic
fixearn, of automatic firears in a felony.
is}. ‘a’person convicted of a felony, where the person had a
semiautomatic firearm or automatic firearm in the person's
Possession of used oF threatened ite use uhile engaged in the
EGmmission of the felony, whether the semiautomatic firearm or
Sctonatie firearm was loaded or not, and whether operable or not,
Shall in addition to the indeterminate term of imprisonment
Provided for the grade of offense be sentenced to a mandatory
Eininum term of iaprisonnent without possibility of parole oF
Probation the length of which hall be as follows:
ai" For a class c felony ~~ five yea:
: ‘This court has recognized that “(a}mbiguity
concerning the ambit of criminal statutes should be
solved in favor of lenity.” State v. Sakamoto, 101
Hawai't 409, 413 9.3, 10 P.98 635, 639 8-3 (2003)
(internal citations ‘and quotation signals omitted).
This "policy of lenity means that the [c]ourt will not
interpret 2 [state] criminal statute so as to increase
the penalty that it places on an individual when such
an interpretation can be based on no more than a guess
as to what (the legislature] intended.” Jd. (internal
Citations and quotation signals omitted) {some
brackets added and sone in original) «
State vs Haugen, 104 Hawai'i 71, 75 9.6, 85 P.36 178, 182 n.6 (2008).
3
‘#8 NOT FOR PUBLICATION ***
For the reasons discussed infra, we hold that the
circuit court erred in sentencing Brittain to mandatory minimum
terms of imprisonment, pursuant to HRS § 706-660.1(3) (d), in
connection with his convictions in Cr. No, 04-1-0084(2).
T. BACKGROUND
on July 21, 2003, a Maui grand jury returned an
indictment against Brittain charging him with the following
offenses in Cr. No. 03-1-0365(2): (1) unauthorized control of a
propelled vehicle (Count I), in violation of HRS § 708-836; and
(2) theft in the second degree (Count It), in violation of HRS
$ 708-831(1) (b).
on February 17, 2004, a Maui grand jury returned an
indictment against Brittain charging him with the following
offenses in Cr. No. 04-1-0084(2): (1) possession of a prohibited
weapon (Count I), in violation of HRS § 134-8(a), see supra note
2, and (2) place to keep unloaded firearm (Count II), in
violation of HRS § 134-6(c), see supra note 3. The indictment
against Brittain in Cr. No. 04-1-0084(2) read in relevant part as
follows:
COUNT ONE: 03-15998
That on or about the 19th day of February, 2003, in the
County of Maul, State of Hawaii, GEORGE Res ih
TRtentsonally or knowingly possess an ob:
prohibited weapon, which he believed, kn ty
Eloregarded the substantial and unjustifiable risk that the object
ras a prohibited weapon, to wit, a Remington 16
Rutomatic shotgun with @ barrel Length of les
{nches, thereby comitting the offense of Possession of
Prohibited Weapon or Device in violation of Section 134
‘the Hawai Revised statutes.
cour Ho: 02-15999
Fist on or about the 19th day of February, 2003, in
tthe county of Maul, state of Hawail, GEORGE H, BRITTAIN,
‘+## NOT FOR PUBLICATION ***
did intentionally or knowingly carry on his person or
fn his possession, an object which was an unloaded
Elzearn, which he believed, Knew, or recklessly disregarded
fhe substantial and unjustifiable risk that the object was,
fan unloaded firearm, to wit, @ Remington 16 gauge seni-
fuconatic shotgun, without it being within an enclosed
Contained, and he believed, knew, oF recklessly disregarded
fhe substantis1 ang unjustifiable risk chat the unlosdes
Firearm was ina place other than his place of business,
Eesidence, or sojourn, thereby committing the offense of
Place to Keep Unloaded Firearm in violation of Section 134-
Sle) of the Hawaii Revised statutes.
on April &, 2004, Brittain entered a plea of no contest
to the two charges against him in Cr. No. 04-1-0084(2).
on May 4, 2004, Brittain entered a plea of no contest
to the two charges against him in Cr. No. 03-1-0365(2).
on June 1, 2004, the State of Hawai'i (hereinafter,
“the prosecution”) filed 2 motion for imposition of mandatory
minimum terms of imprisonment in Cr. No. 04-1-0084(2). The
prosecution sought a mandatory minimum term of imprisonment of
five years as to both Counts I and II, pursuant to HRS § 706-
660.1(3) (4), see supra note 4.
on June 10, 2004, the circuit court conducted a hearing
on the prosecution's motion for mandatory minimum terms of
imprisonment and sentencing. The prosecution maintained that the
circuit court was “mandated by law to impose @ mandatory minimum
period of incarceration without the possibility of parole for
[Brittain’s) use of a semi-automatic shotgun.” Defense counsel
for Brittain argued “that the mandatory minimum of one year is
adequate and sends the right signal.” The circuit court granted
the prosecution's motion for mandatory minimum terns of
imprisonment, orally ruling as follows:
As far as [the imposition of] mandatory minima [terms
4a} concerned under [HRS] Section 706-(660.1(3)], there
5
‘+## NOT FOR PUBLICATION ***
isn’t any real dispute that this was a semi-automatic
firearm. The statute clearly provides that it doesn’t
Rater whether it’s operable of not. So T'll impose a
five(-]year mandatory minimum under the statute in [Cr. No.]
4-1-0088 (2)
‘he circuit court sentenced Brittain to the following:
(1) an indeterminate five-year maximum term of imprisonment in
connection with both Counts I and IT in Cr. No. 03-1-0365(2)7 and
(2) an indeterminate five-year maximum term of imprisonment,
subject to a five-year mandatory minimum term, in connection with
both Counts I and II in Cr. No. 04-1-0084(2). The circuit court
ordered all counts to run concurrently.
on June 9, 2004, Brittain timely filed a notice of
appeal 2x officio at the circuit court of the first circuit.
[A sentencing judge generally has broad
discretion in impoaing a sentence. State v Gaylord,
Je tawalt 127, 143-64, 890 P.24 1167, 1163-84 (1995)7
State t. Valea, 74 Maw. 424, 435, 848 P.2d 376,
Serf 7 (1958). The applicable’ standard of review
for sentencing of resentencing matters is whether the
Court committed plain and manifest abuse of discretion
Sn ite decision. Gaulorg, 7e Hawai's at 244, 290 P.26
at tied; State v. Kamukay, 71 Haw. 218, 227-28, 787
Pi2d 682, 607-08 (1990); State v. Murcav(,] 63"
32, 25, 621 P.2d 334, 342-43 (1900); State ws Fry, 61
Haw. 226, 231, 602 P.2d 13, 16 (1979).
Keawe x tate, 79 Hawai'i 261, 264, 901 P.74 482, 484
Hes A iitccore wnien indicate ‘a plain and manifest
Sbose of discretion are arbitrary or capricious action by
the Juage and a rigid refusal to consider the defendant’ s
Gostentions.” Zev, 61 Haw. at 231, 602 P.2d at 17. And,
SSigieneraliy, £0 constitute an abuse it must appear that
thevoure clesrly exceeded the bounds of reason oF
Gisregardes rules or principles of law or practice to the
Substantial detriment of a party litigent.'* Keawe, 79
Hawai at 204, 901 P.2d at 404 (quoting Gavlorg, 76 Hawai's
Be 144, 890 P.2d at 1i6e (quoting Kumukau, 7) Maw. at
227028, 787 P.zd at 688)).
State v. Rauch, 94 Hawai'i 315, 322, 13 P.3d 324, 331 (2000)
6
* NOT FOR PUBLICATION *#*
(brackets and ellipsis points in original).
B. Quest: nstiti "
We answer questions of constitutional Law ‘by
‘our own independent judgeent based on the facts
sr and, thus, qoastions of constitutional law
are reviewed on appeal “under the ‘right/wrong’ standard.”
Stacey. denking, 93 Hewai't 87, 100, 997 P.2d 23, 26 (2000)
(citations omitted) -
State v, Aplaca, 96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001).
C. Statutory Interpretation
“(t]he sntezpretation of a statute...
is a question of law reviewable de nove.” State
84 Hawai'i 2, 20," 928 F.2d 643, 952
(W398) “(quoting state vs Camara, $1 Hawai'i 324,
329, 916 -2a 1225, 1230 (1996) (citations
onitted)).” See algo State v. Zovemura, 80
Hawaii 8, 16, 904 P-2a 885, 903 (1999); State
479 viawai't i, 3, 837 P.2d 928, 930
Tiss) State ve Naksta, 76 Hawai't 3
678 P.26 699,708 (1998)...
Tse, 14%, 931 F.2d Sel
some in original). See alao State v. Gata, 84 Hawai't 229,
236, 933 P.24 86, 73. (1337)
Construction is guided by
nen construing a statute, our forenest obligation is
to ascertain and give effect to the intention of the
Jegisiature, which 1s to be obtained primarily trom
the language contained in the statute itself. Ana we
must read statutory language in the context of the
Thtire statute and constrse st in a manner consistent
sith tee purpose.
When there is doubt, doubleness of meaning, or
indistinctivenese or uncertainty of an expression used
inva statute, an ambiguity existe. .
Tn construing an ambiguous statute, “[t)he
meaning of the anbiguous words may be sought by
examining the context, witn which the ambiguous words,
Phrases, and sentences may be compared, in order to
Escertain their true meaning." aks § 1-15(1)
{(1993)]. Moreover, the courts may resort to
exteinole aids in determining Legislative intent. one
avenve is the use of legislative history as an
Interpretive tool.
Gray, 8¢ Hawaii at 148, 932 P.24 at 590. state 2
Tovamura, €0 Hawal't 0, 18-19, 904 P.24 893, 903-04 (1995)
{brackets and ellipsis points in original) (footnote
omitted). This court may also consider [t]he reason and
spirit of the law, and the cause which induced ©
Legisisture to ensct it... to discover its true meaning.”
wes $ 1-15(2) (2993). “taws in pari materia, oF upon the
7
**# NOT FOR PUBLICATION ***
sane subject matter, shall be construed with reference to
@ach other. What i clear in one statute may be called upon
Snaig to explain what is doubtful in another." HRS § 1-16
(2333)
Bauch, 94 Hawai'i at 322-23, 13 P.3d at 331-32 (quoting State
Kotis, 91 Hawai" 319, 327, 984 P.2d 78, 86 (1999) (quoting State
Ws Dudoit, 90 Hawai'i 262, 266, 978 P.2d 700, 704 (1999) (quoting
State v. Stocker, 90 Hawai" 85, 90-91, 976 P.2d 399, 404-05
(2999) (quoting Ho v. Leftwich, 88 Hawai'i 251, 256-57, 965 P.2d
793, 798-99 (1998) (quoting Korean Buddhist Dae Won Sa Temple v.
Sullivan, 87 Hawai'i 217, 229-30, 953 P.2d 1315, 1327-28
(2998)))90)
HII, DISCUSSION
Brittain argues that the circuit court did not have the
legal authority to impose mandatory minimum terms of imprisonment
in connection with Counts I and IT in Cr. No. 04-1-0084(2), given
the plain and unambiguous language of HRS § 706-660.1 and when
read in pari materia with HRS §§ 134-6(c) and 134-8(a).
Brittain maintains that his conduct could not trigger mandatory
minimum terms of imprisonment “because HRS § 706-660.1 is not
applicable where the defendant was convicted only of possessory
firearm offenses.” We agree with Brittain.
We have observed that “*{iJt is a cardinal rule of
statutory interpretation that, where the terms of a statute are
plain, unambiguous and explicit, we are not at liberty to look
beyond that language for a different meaning. Instead, our sole
duty is to give effect to the statute’s plain and obvious
meaning.” Haugen, 104 Hawai'i at 75, @5 P.3d at 182 (citations
‘**+ NOT FOR PUBLICATION ***
omitted) .
HRS § 706-660.1 is entitled “[s]entence of imprisonment
for use of a firearm, semi-automatic firearm, or automatic
firearm in a felony.” (Emphasis added.) See supra note 4. For
the circuit court to have imposed a legitimate mandatory minimum
term of imprisonment, Brittain must have (1) been convicted of a
felony (2) where he had a firearm or a semi-automatic firearm (a)
in his possession (b) or used (c) or threatened its use while
engaged in the commission of the felony. Nevertheless, Brittain
was convicted of possession of a prohibited weapon and place to
keep an unloaded firearm in Cr. No, 04-1-0084(2), the felonious
conduct being the possession of the firearm itself and the
failure to keep it in an approved “enclosed” container.
Accordingly, Brittain did not possess, use, or threaten
the use of a firearm while engaged in the commission of the
felonies of possession of a prohibited weapon and place to keep
an unloaded firearm. Brittain’s possession of the firearm was
the entire felonious conduct with respect to both offenses; in
other words, there was no underlying felony that Brittain
committed while possessing or using a firearm. As such,
Brittain’s conduct falls outside of the ambit of HRS § 706-660.1.
‘thus, by virtue of the plain language of HRS § 706-660.1,
ion of a semi-automatic firearm and failure to
Brittain’s poss
transport it in an approved container did not automatically
subject him to the enhancement of a mandatory minimum term of
imprisonment.
‘48 NOT FOR PUBLICATION ***
‘this court's recent decision in State v. Vellina, 106
Hawai'i 441, 106 P.3d 364 (2005), 1s dispositive of the present
matter. In Vellina, we held that the circuit court erred in
sentencing Vellina to mandatory minimum terms of imprisonment
purauant to HRS $§ 706-660.1(1) (c) and (3)(c) in connection with
rm, inasmuch as the
two counts of first-degree theft of a fir
entire felonious conduct with respect to each count was the theft
of the firearm and Vellina had not used a firearm in the
commission of the felonies.
In State v, Ambrosio, 72 aw. 496, 824 P.2d 107
(1992), ‘this court hele that the defendant could
Sentenced to s nahdatory minimum term of imprisonment,
Pursuant to HRS § 706-660,1(a) (2) (1988), im connection with
B"Eldnapping conviction, but could not also be sentenced to
2 mandatory minimum term with respect to a charge of use of
Eirearm during the commission of a felony,
HRS § 706-660.1(2) (2) provided:
[A person convicted of @ felony, where the person
had a firearm in Ais possession or threatened
Its Gse or used the firearm wnile engaged in the
Commission of the felony, whether the firearm
Mas loaded er not, and whether operable or not,
Gay in addition to the indeterminate term of
Imprisonment provided for the grade of offens
bbe sentenced £0 2 mandatory minimum term of
Imprisonment without possibility of parole or
Probation the length of which shall be as
follows:
2} For @ class A felony -- up to ten years[.J
‘This court state:
‘The Language of the above statute is clear
and unambiguous. The enhanced sentencing
Spplies to the conviction for the fe1ony in
Shich the firearm was Used. In this c
Mae the kidnapping.
‘The legislature has chosen to make the use
of a firearm in the commission of a felony the
Basis for enhanced sentencing for that felony,
and it hag also chosen to make such use @
Separate felony, but it clearly has not chosen
to impose two mandatory minimun sentences for
one use of 8 gun
a
10
accor ‘the judge below properly
applied the hen sentencing appellant
fer. kscnspe: “judge below improperly
applied the when sentencing appellant
ior the felony of using @ firearm in the
Commission of the kidnapping.
Ambrosio, 72 Haw. at 497, 624 P.2d at 108
Vellina, 106 Hawai'i at 448, 106 P.3d at 371.
Moreover, the Intermediate Court of Appeals (ICA)
recently held in State v, Coelho, 2005 WL 980613 (April 28,
2005), that the court erred in imposing a mandatory minimum term
of imprisonment on a defendant who was convicted of being a felon
in possession of a firearm pursuant to HRS § 134-7(b).
costho was convicted of being a felon in possession of
a firearm; the felonious conduct was the possession of the
{steam itesl£. There was a0 underlying felony that Coelho
Conaitted while possessing or using @ firearm. convicting
Coeino of being 2 felon in possession of a firearm pursuant
to HRS § 134-7(b) and sentencing him to a mandatory minimum
term of imprisonment pursuant to HRS § 706-660-1(3) (c)
‘essentially punished Coelho twice for 2 single possession of
o'tirearn,
Goelhe, 2005 wL 980613.
“Analogously, the legislature has specifically chosen
to make the use of a firearm in the comission of a felony the
basis for enhanced sentencing in connection with that felony, and
it has also chosen to make” the possession of 2 prohibited weapon
and the unauthorized place to keep a firearm separate felonies,
“but it has nok chosen to impose a mandatory minimum prison term
for” either the possession of that firearm or the failure to keep
it in an authorized container. Vellina, 106 Hawai'i at 448, 106
P.3d at 371 (emphases in original).
Furthermore, we can conceptualize no scenario in which
a defendant may be subject to a mandatory minimum term of
an
‘+## NOT FOR PUBLICATION *#*
imprisonment under HRS § 706-660.1(3)(d) for use of a firearm in
the possession of a firearm. By contrast, we stated in Vellina
that there could be no imposition of a mandatory minimum prison
term for the mere theft of a firearm “unless a different firearm
is used in the commission of the theft.” 106 Hawai'i at 448, 106
P.3d at 371 (emphasis added). Therefore, the circuit court’s
reasoning that there wasn’t “any real dispute that [Brittain
used] a semi-automatic firearm” and that “[t]he statute clearly
provides that it doesn’t matter whether it’s operable or not” is
irrelevant to whether the circuit court's: imposition of mandatory
minimum terms was appropriate in Cr. No. 04-1-0084(2).
In essence, convicting Brittain of possession of a
prohibited weapon, pursuant to HRS § 134-8(a), and
ntencing him
to mandatory minimum terms of imprisonment, pursuant to HRS
§ 706-660.1(3) (d), punished him twice for the possession of the
sane firearm. Likewise, convicting Brittain of failure to keep
the unloaded firearm in an approved container, pursuant to HRS
§ 134-6(c), and sentencing him to mandatory minimum terms of
imprisonment, pursuant to HRS § 706-660.1(3) (4), punished him
twice for the possession of the same firearm.
Accordingly, we hold that the circuit court erred in
sentencing Brittain to a mandatory minimum term of imprisonnent
pursuant to HRS $$ 706-660.1(3) (d) in connection with Counts Z
and IT in Cr. No. 04-1-0084(2).
IV. CONCLUSION
In light of the foregoing analysis, we vacate the
circuit court’s judgment of conviction and sentence and remand
2
‘##* NOT FOR PUBLICATION ***
for further proceedings.
DATED: Honolulu, Hawai'i, July 5, 2005.
on the briefs:
Peter A. Hanano, fo
Deputy Prosecuting Attorney,
for the plaintiff-appellee :
State of Hawai'i eR Lime
James 8. Tabe, & a
arin aro.
Deputy Public Defender,
for the defendant~appelient
George Brittain, dr. Boe
Vrms, Budags by
13
|
99be2f60-7afa-417f-860e-c55f8c874faa | State v. Sniffen | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION ***
No. 25766
IN THE SUPREME COURT OF THE STATE OF HANAT'Y,
ais!
Pi
STATE OF HAWAI'I, Plaintiff-Appellant
a3
3s
1 sHWY 62 NAP /go02
DONNA SNIFFEN, Defendant-Appellee
APPEAL FROM THE SECOND CIRCUIT COURT
(cR. NO. 02-1-0315(1))
‘SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Plaintiff-appellant the State of Hawai‘ (the State)
appeals from the March 18, 2003 findings of fact, conclusions of
law, and order of the circuit court of the second circuit, the
Honorable Joel E. August presiding, granting defendant-appellee
Donna Sniffen’s (Sniffen) motion to suppress.
‘The circuit court ordered suppression 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 probabl® cause. On
appeal, the State contends that suppression based on this
discrepancy was wrong because: (1) 2 mere typographical error
should not invalidate the seizure of evidence sufficiently
described in the warrant; and (2) the seizure was proper because
the police relied in good faith on what appeared to be a valid
warrant.
upon carefully reviewing the record and the briefs
submitted by the parties, and having given due consideration to
*** NOT FOR PUBLICATION ***
the arguments advanced and the issues raised, we hold that: (1)
the search warrant violated Hawai'i Rules of Penal Procedure
(HRP?) Rule 41(c) (2002) because it commanded police to search a
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
appeal is taken is affirmed.
DATED: Honolulu, Hawai'i, June 29, 2005.
on the briefs:
Arleen Y. Watanabe,
Deputy Prosecuting Attorney,
for the plaintisf-appellant Shenae
State of Hawai'i
Joyce K. Matsunori-Hioshijo, Rsceese cornice ures
Deputy Public Defender,
for the defendant-appellee
Donna Sniffen
Yared +
|
0ca8a234-5777-4ad8-84f7-41b02ed0c6ae | State v. Ulangca | hawaii | Hawaii Supreme Court | LAWUIBRARY
‘*** NOT FOR PUBLICATION ***
wo, 26792
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HANAT'I, Petitioner-Appellee
vs.
MATIAS ULANGCA, JR., Respondent-Appellant
APPEAL FROM THE FIRST CIRCUIT COURT
(S.P. NO, 04-1-0176)
‘ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that S.P. No. 04-
1-0176 was a circuit court civil proceeding governed by the
Hawai'i Rules of Civil Procedure. See HRS $ 846E-3(d); HRCP 1.
The circuit court’s August 3, 2004 order was not reduced to a
separate judgment, as required by HRCP 58. See Jenkins v. Cades
Schutte Fleming & Wright, 76 Hawai'i 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 $8). Thus, the appeal of the August 3, 2004
order is premature and we lack jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai‘i, May 27, 2005.
MY Lirrain
Praate bo Nieeseny are
|
d24e8fe2-4c76-47ad-8faa-e2902a3d5aaa | Arellano v. Pleasant Travel Service | hawaii | Hawaii Supreme Court | LAW UBRAKY
2
5
z
‘*** NOT FOR PUBLICATION ***
No. 24980 a
IN THE SUPREME COURT OF THE STATE OF HAWAT'IZS/Z
oats
ONESIHO ARELLANO, Clainant-Appeliant ER:
vs. 5
PLEASANT TRAVEL SERVICE, and PIREMAN’S FUND INSURANCE CO.,>
Employer/Insurance Carrier-Appellee
ee
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 98-648 (WH) (9-97-0894) )
‘SUMMARY DISPOSITION ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Claimant-appeliant Onesimo Arellano (Arellano) appeals
from the February 11, 2002 order of the Department of Labor and
Industrial Relations (DLIR) Appeals Board (LIRAB), adopting, in
tote, Hearings Officer Jean Tanaka’s November 7, 2001 proposed
decision and order, which affirmed the DLIR Director’s
pecenber 9, 2998 decision to the extent that the Director awarded
Arellano (1) temporary total disability (TTD) benefits from
June 30, 1997 through May 13, 1998, and (2) 8% permanent partial
disability (PPD) of the whole person, with respect to his
June 26, 1997 work-related injury. On appeal, Arellano argues
that the LIRAB (1) violated his constitutional right to due
process by failing to issue a finding of fact (FOF) or provide an
explanation as to the specific “odd-lot” factors it considered,
4¢ any, in determining that he was not permanently and totally
disabled (PTD) under the Yodd-lot” doctrine, and (2) erred
considering his voluntary retirement in determining his
'*#* NOT FOR PUBLICATION ***
entitlement to PPD benefits.
upon carefully reviewing the record and the briefs
submitted and having given due consideration to the issues raised
and arguments advanced, we first hold that the LIRAB did not
violate Arellano’s constitutional right to procedural due process
by summarily finding that Arellano was not PTD under the “odd-
lot” doctrine, inasmuch as the testimonies presented by Arellano,
Priscilla Barcoma, and Martin Hudon, together with the LIRAS’s
unchallenged FOFs, namely FOF nos. 20, 22, and 26, more than
adequately apprise Arellano as to why he was not PTD under the
sodd-lot” doctrine. See Atchley v, Bank of Hawai'i, 80 Hawai'i
239, 909 P.2d 567 (1996); Yarnell v. City Roofing, Inc., 72 Haw.
272, 813 P.2d 1386 (1991); Zauchivama v, Kahului Trucking and
Storage, Inc., 2 Haw. App. 659, 638 P.2d 1381 (1982). due
process compels nothing more. We further hold that the LIRAB did
not “abruptly minimize” Arellano’s PPD rating by adversely
considering his voluntary retirement in determining his
entitlement to PPD benefits. Indeed, notwithstanding Arellano’ s
voluntary retirement, substantial evidence was adduced to support
the LIRAB’s conclusion that Arellano was @t PPD of the whole
person for his June 26, 1997 work-related injury, inasmuch as (1)
+ Agellano challenges finding of fact (FOF) no. 27, which provides:
27. We also find that (Arellano' s] work-related
permanent partial impairment does not combine with the odd
[or 'factors of age, education, and experience, to render hin
tb under the odd-Lot doctrine. Based on Dr. Direnfeld’ s
Gnrebutted opinion, we find that it Ls the non-work-related
psychosocial factors that have allegedly rendered [Arellano]
Unable to work. In addition, (Arellano] has taken himself
cut of the labor marker by his voluntary retirement on
Wovenber 22, 1398.
¥** NOT FOR PUBLICATION ***
Raymond Taniguchi, M.D., opined that, although he was not sure
whether Arellano would have any PPD, if he did, “it will not be a
major problem, probably St at the most,” (2) during Arellano’ s
independent medical evaluation (IME) with Lorne K. Direnfeld,
M.D. (Dr. Direnfeld), Dr. Direnfeld (a) reported that, although
“there [wa]s a probable causal relationship between [] Arellano’s
complaints of low back pain and the occupational injury reported
on 6/2{6]/97 . - . lolther factors contributing to the
persistence of [] Arellano’s symptom complex appear to be of a
psychosocial nature{,]” and (b) concluded that Arellano was
stable for rating and rated him 5% impairment of the whole
person, and (3) during Arellano’s second IME with Dr. Direnfeld,
Dr. Direnfeld (a) reported that (i) Arellano’s symptom complex
was not attributable to the effects of his June 26, 1997 work-
related injury, (ii) “psychosocial factors appear to have taken a
more prominent role and have likely contributed to delayed
recovery and prolonged disability[,]" (iii) Arellano reached
maximum medical improvement and was medically stable no later
than six months post-injury, and (iv) it was medically probable
Arellano could have returned to modified-duty no later than six
months post-injury, and (b) rated Arellano St impairment of the
whole person. See HRS § 386-32(b) (Supp. 2004); Nakamura ve
State, 98 Hawai'i 263, 47 P.3d 730 (2002). Therefore,
*** NOT FOR PUBLICATION ***
IT IS HEREBY ORDERED that the LIRAB’s February 11, 2002
order, from which the appeal is taken, is affirmed.
DATED: Honolulu, Hawai'i, June 29, 2005.
on the briefs:
James Ireijo for Yt
Claimant -appellant .
insurance carrier-appellee
|
cc2e54cb-e534-45fd-bb32-a9218ff678a0 | Oahu Transit Services, Inc. v. Northfield Insurance Company. | hawaii | Hawaii Supreme Court | Uawuprary
*** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'r
=--000-
OAHU TRANSIT SERVICES, INC.,
Plaintift-Appel lant /Appellee,
NORTHFIELD INSURANCE COMPANY,
Defendant Appel lee/Appellee,
aqua
and
ALOHA STATE CAB, INC., JOHN DOES 1-5,
JOHN DOE PARTNERSHIPS 1-5,
ROE GOVERNMENTAL AGENCIES 1-5,
JOHN DOE CORPORATIONS
ROE NON-PROFIT CORPORATIONS 1-5
Defendants.
By oe 4
NORTHFIELD INSURANCE COMPANY,
Third-Party Plaintiff-Appellee/Appellee,
CITY AND COUNTY OF HONOLULU,
‘Third-Party Defendant-Appellee/Appellant-
No. 25704
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO, 011-2923)
MAY 31, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY DUFFY, J.
Plaintiff-appeliant Oahu Transit Services, Inc. (OTS)
and third-party defendant-appellant City and County of Honolulu
[hereinafter, “the City”) appeal from the Circuit Court of the
* FOR PUBLICATION ***
Firet Circuit’s March 18, 2003 first amended judgment.’ As
points of error, OTS and the City contend that the circuit court
erred in issuing ite March 28, 2002 order granting summary
Judgment in favor of defendant-appellee/third-party plaintiff
appellee Northfield Insurance Company (Northfield) and denying
summary judgment in favor of OTS and the City.
‘The main issue on appeal is whether an automobile
exclusion clause in a Commercial General Liability (CGL)
Insurance policy (providing that no coverage exists for
“*tplodily injury’ or ‘property damage’ arising out of the
ownership, maintenance, use or entrustment to others of any. .
‘auto’ . . . owned or operated by or rented or loaned to any
insured”) applies so as to bar coverage in the instant case. We
hold that the circuit court correctly concluded that this
exclusion applies and that Northfield is not required to defend
or indemnify OTS or the City.
1. BACKGROUND
A, The Parties
OTS operates transit services, including paratransit
services, for the City. In addition to operating “TheBus” and
“TheHandi-Van,” OTS contracted with private corporations to
the Honorable Virginia Lea Crandall presided over this matter.
*** FOR PUBLICATION ***
provide supplemental services. One such private corporation was
Aloha State Cab, Inc. (Aloha State).
‘The Accident:
on May 27, 2000, Aloha State vas assigned the job of
transporting Roy Muramoto to a dialysis appointment. While in
transit to the appointment, Muramoto’s wheelchair tipped over and
Muramoto was pinned in the corner of the van. The driver stopped
the van and went to assist Muramoto; Muramoto was strapped into
his wheelchair by a belt connected to the chair, and -~ according
to the driver -- Muramoto asked the driver to disconnect the belt
because Muramoto was pinned in the corner and uncomfortable. The
driver complied, but when the belt was released, Muramoto
collapsed to the floor. Muramoto suffered a spinal cord injury
and paralysis of his diaphragm as a result. The record suggests
that most, if not all, of Muramoto’s injuries occurred when
Muramoto collapsed to the floor: the driver had indicated that,
when Muranoto was pinned in the corner prior to releasing the
belt, Muramoto did not appear to be in distress.
The GL Policy
AG the tine of the accident, Aloha State had a CGL
policy with Northfield. This
me CGL policy also listed OTS as
an additional insured party. However, although OTS was listed as
an additional insured, the CGL policy covered OTS “only with
*** FOR PUBLICATION ***
respect to liability arising out of (Aloha State’s] operations or
premises owned by or rented to (Aloha state] .”?
‘The CGL policy provided that Northfield “will pay those
sums that the insured becomes legally obligated to pay as damages
because of ‘bodily injury’ or ‘property damage’ to which this
insurance applies.”? The policy also contained the following
exclusion, which is the focus of the instant case:
‘This nsurance does not apply to:
“nodity injury” or “property damage” arising out of the
omership, maintenance, use or entrustment to others of any
Sireraft, “auto” or watercraft owned or operated by or
Eented of loaned to any insured. Use includes operation and
“loading or unloading”
# the CSL policy algo listed The state of Hawaii's Department of
‘Transportation, Department of iunan Services, and Department of Land and
Naturel Resources s¢ additional insureds.
) the CGL policy defined “bodily injury” as “bodily injury, sickness or
Gisease sustained by a person, including desth resulting from any of these st
fany tine.” The policy's definition of “property damage” is not relevant to
the instant case.
‘the CGL policy defined “Loading or unloading” as follows:
“uoading or unloading” means the handling of property:
After it is moved from the place where it is accepted
for novenent into or anto an aircraft, watercraft or
nile it ds in or on an aircraft, watercraft or
Sauter? oF
c. Wadle it s being moved from an aircraft, watercraft
oF “autor to the place where it is finally delivered:
but “loading or unloading” does not include the movement of
Property by means of a mechanical device, other than @ hand
Ervck, thet Se not attached to the aircraft, watercraft or
(Emphasis added.) The applicebility of this definition to the instant case is
inka.
** FOR PUBLICATION ***
(This exclusion will hereinafter be referred to as “the CGL
automobile exclusion.)
D. Procedural History
On August 30, 2001, Muramoto filed his Second Amended
Complaint against the City, OTS, and Aloha State. Muramoto’s
Second Amended Complaint brought claims for relief based on
negligence; respondeat superiors agency; breach of duty owed by
common carrier; the Americans with Disabilities Act; breach of
duty to comply with federal and state law; negligent selection,
supervision, and training; breach of express or implied warranty?
and ratification.
OTS tendered its defense of Muramoto’s suit to
Northfield pursuant to the terms of Aloha State’s CGL policy.
Northfield denied coverage, stating that the CGL automobile
exclusion applied (such that neither Aloha State nor OTS was
entitled to coverage).
On October 5, 2001, OTS filed a declaratory judgment
action against Northfield, seeking a declaration that the CGL
policy provided OTS with coverage for Muranoto’s suit. On
November 15, 2001, Northfield filed a counterclaim against OTS, a
cross-claim against Aloha State, and a third-party complaint
against the City, each of which sought a judicial declaration
don
that Northfield was not obligated to defend or indemnify ba
the CGL policy. The City then filed a counterclaim against
5
*** FOR PUBLICATION ***
Northfield, OTS filed a motion for summary judgment on December
26, 2001, arguing that Northfield had a duty to defend and
indemnify OTS with respect to Muranoto’s lawsuit; the City joined
this motion on February 15, 2002. Northfield filed a counter-
motion for summary judgment on January 31, 2002.
on March 28, 2002, the circuit court granted
Northfield’ s motion for summary judgment and denied OTS's motion
(which had been joined by the City) for summary judgment. The
circuit court entered final judgment in favor of Northfield, and
OTS and the City filed timely notices of appeal.*
IT. STANDARD OF REVIEW
We review the circuit court's grant or denial of
unary Jucgment de nova.
Union 2 Keka, 9¢ Havas 213, 221; 11 F301, 9 (2000).
ard for granting ® motion for summary judgment is
{Slummary judgment is appropriate if the
pleadings, depositions, answers to
[nterrogatories; and admissions on file,
together with the affidavits, if any, show that
Entre is ho genuine issue as to any material
fact and thet the moving party ie entitied to
Sodgeont as s matter of low. A fact is material
if"frovt of that fact would have the effect of
Eblishing or refuting one of the essential
Geserted by the partion. The evidence most be
wed in the 1ight most favorable to the non=
Soving party. Jn other words, we must view all
bf the evidence and the inferences drawn
Gherefron in the Light most favorable to the
party opposing the motion
a. (cltations end internal quotation marks omitted) «
* in the meantime, however, Aloha State failed to respond to any of the
complaints against ite Both OFS and Northfield requested entry of defeult
Ggeinst Aloha state as to their respective complaints, and the requests were
geented.
6
*** FOR PUBLICATION ***
Goon v. City & County of Honolulu, 98 Hawai'i 233, 244-45, 47
P.3d 348, 359-60 (2002) (alte:
tion in original).
IIT. DISCUSSION
A. OTS And The City Are Subject To The CGL Automobile
Exclusion.
As an initial matter, both OTS and the City are subject
to the CGL policy's restrictions, including the CGL automobile
‘exclusion.
Both Aloha State and OTS were listed as insured
parties, and the exclusion applied to any automobile “owned or
operated by or rented or loaned to any insured” (emphasis added) .
OTS is a named insured, such that the exclusion applies to OTS
even if OTS itself did not own or operate the automobile.*
Similarly, the City is subject to the CGL automobile
exclusion as well. In its contract with the City, Aloha state
agreed to indemnify the City against any claims brought against
the City arising from Aloha State’s negligence. The CGL policy
insured Aloha State against this type of contractual Liability,
but only to the extent that Aloha State “becomes legally
* S00, g.g., Travelers Indem. co, v, Citao Petzoleun Comps, 166 F.3d 761
(sth cir. 1998).”' in Citag, Citgo’s franchisee had a Col policy and Citgo was
hhaned as an additicnal insured; however, just like in the instant case, Citgo
was only an insured to the extent that it was held liable for the franchise's
Sets or omissions. i, at 169 4 n.10. Alehough Citgo argued that the
Sutenobile exclusion did not apply to it because it did not own oF operate the
Yehicle in question, the court disagreed: the court held that if the
automobile exelusion applied to the franchises, it also applied to citgo
even though Citgo itself did not cnn or operate the vehicle in question
Because the exciveion applied to automobiles owed or operated By "any
insured.” Ig. at 769-70.
*** FOR PUBLICATION ***
obligated to pay . . . damages because of ‘bodily injury or
‘property damage’ to which this insurance applies.” In other
words, if Aloha State was entitled to coverage for a particular
occurrence of bodily injury or property damage, Aloha State would
be entitled to coverage for its contractual obligation to
Andemnify a third party for liability arising from that
occurrence as well. If the CGL policy did not apply to Aloha
State (L.e., if one of the exclusions in the CGL policy barred
coverage for Aloha State), then the indemnitee (the City) would
not be entitled to coverage either. Additionally, the CGL policy
specifically excluded coverage for any damages arising from the
sole negligence of the indemnitee. Consequently, if we conclude
that the automobile exclusion applies to Aloha State, the
exclusion also bars the City from recovering from Northfield.
In sum, if the CGL automobile exclusion in the instant
case applies at all, it applies equally to Aloha State, OTS, and
the City.
B. The CGL Automobile Exclusion Applies In The Instant Case.
The circuit court correctly granted summary judgment in
favor of Northfield because all of Muramoto’s injuries arose from
the use or operation of an automobile. Subsection 1, infra,
discusses the phrase “arising from the use or operation of an
automobile” and concludes that this unambiguous phrase should be
accorded the same interpretation in the context of a CGL policy
*** FOR PUBLICATION ***
exclusion and in the context of an automobile insurance coverage
clause, Subsection 2, infza, applies this principle to the facts
of the instant case and concludes that OTS and the City are not
entitled to coverage because Muranoto’s injuries arose from the
use or operation of an automobile. Subsection 3, intra, rejects
OTS's and the City’s arguments that coverage exists based on
Muramoto’s allegations of negligent hiring, supervision, and
training; where Liability stems solely from an auto-related
cause, the CGL automobile exclusion will not be negated simply
because the injured party's complaint alleges various theories of
Adabinity.
1. Because the phrase “arising from the use or operation
of an automobile” is unambiguous, it has the same
meaning regardless of whether the phrase appears in an
automobile insurance coverage clause or a CGL policy
exclusion.
While the applicability of the phrase “arising out of
the ownership, maintenance, [or] use” is not entirely clear in
every case, the phrase itself is unambiguous. As this court
stated in Zortune v. Wong, 68 Haw. 1, 11, 702 P.24 299, 306
(1985):
‘The honsowner’# policy declared in unanbiqusus language that
it'aid not apply to bodily injury afising from the operation
of S motor vehicle by sn insured. The complaint in the
Personal injury action charged that Ronald wong drove 3
moter vehicle in negligent fashion, his negligence resulted
in bodily injury, and his parents were liable for the
Ganages.” Inasmuch se 2 court “cannot rewrite the contract
of the parties,” 12 G. Couch, Cyclonedia of Insurance Law
(2aed.) § 44A:2 (1981) (footnote omitted), we cannot sey
Lssbility for Ronald Wong's negligence wae’ within the
intendaewt of the parts
** FOR PUBLICATION ***
(Emphasis added.) If the CGL automobile exclusion were
ambiguous, this court would construe this phrase in favor of the
insured; if this same ambiguous phrase also appeared in a
coverage clause in an automobile policy, this court would still
interpret this phrase in favor of the insured. Thus, if the
phrase were ambiguous, this court could afford differing
interpretations to the phrase depending on whether the phrase
appeared in a coverage clause or an exclusionary clause.’
However, because the phrase “arising out of the ownership,
maintenance, [or] use” is unambiguous, this court need not
interpret the phrase differently depending on whether the phrase
or an exclusionary claw:
appears in a coverage claui
See Havaiian Ins, ¢ Guar, Co. Ltd, v, chief Clerk of Firat
Circuit Court, 68 Haw. 336, 342, 713 P.2d 427, 432 (1986)
(holding that the plain language of the insured’ s homeowner's
as this court stated in Hawaiian Insurance ¢ Guaranty Cou tide ws,
ghiet Clore of First Giscust Coust, 60 Raw. 336, 38l-42, 113 Ped G27, 31
(isee7=
‘reve, we have said more than once that insurance policte:
are Contracts of adhesion prenised on standard forms
prepared by the insurer's attorneys, . « « (and) they mst
be*Gonserued lizerally in favor of the insured and the
ambiguities reesived against the insurer. But the rule of
construction urged upon us is not fer application whenever
Insurer and inevred simply disagree over the interpretation
of the terms of a policy and there is an assertion of
Gnbiguity. Ambiguity exists and the rule is followed only
hen the [policy] taken #8 a whole, 19 reasonably subject to
Giftering interpretation. Absent sn ambiguity, the terms of
the policy should be interpreted according to their plain,
oraihery, and accepted sense in conaon speech.
Lanternal quotation signals and citations omitted.) (Alterations in original.)
10
*** FOR PUBLICATION ***
policy excluded coverage for injuries arising out of an
automobile accident); see also i. Ins. Co, of MY. vs Ekstrom,
784.24 320, 323 (Colo. 1989) (declining to give the phrase
“arising out of” different meanings depending on whether the
phrase appeared in a coverage clause or an exclusionary clause).
Therefore, this court may look to its interpretations of the
phrase “arising out of the ownership, maintenance, (or) use” in
the context of automobile insurance coverage clauses and apply
these interpretations to the CGL automobile exclusion at issue in
the instant case.
2. te
case because Muramoto’s injuries arose from the u:
operation of an automobile."
tomobile exclusion bars coverage in the instant
In the context of an automobile insurance coverage
clause, this court has applied the following three-factor test to
+ This section addresses the applicability of the CGL automobile
exclusion," n ite answering briefs, Northfield argues that Muramoto's
injuries all arise fron the use of an automobile and are therefore excluded.
In so arguing, however, Northfield makes repeated references to the “Loading
land unloading” of the HandiVan. For example, in its Answering Brief to the
City’s Opening Brief, tortntield states: "the alleged inproper training of
the driver leading to improper seating and securing is, in essence, negligent
loading of the van. The alleged improper disengagement of Marumoto [sic] from
his wheelchair is, in essence, negligent unloading of the van.” Similarly, in
its Answering Brief to OfS's Opening Brief, Northfield argues that “Mramoto’s
Mnjuries’ are all rooted in the operation, use, losding or unloading of the
‘Wandi-Van' and are therefore excluded under the auto exclusion.”
Northfield’s repeated references to “loading and unloading” stem from
‘the CGL automobile exclusion, which provides in relevant part that "Us
includes operation snd “loading or unloading’.” This policy provision is
inapplicable in the instant case, however. The CGL policy defines “loading
and Unloading” as "the handling of property” under certain circumstances:
(Emphasis added.) A passenger is not property, such thet this additional
Fefinenent of the term “use in the Col policy ss not helpful to Northfield.
cy
FOR PUBLICATION ***
ee
determine whether injuries arose from the use or operation of a
motor vehicle:
‘the first factor (48) whether the . . . motor vehicle was an
active accessory in causing [the] plaintiff's injuries
‘he second factor (is) whether there was an.
independent act breaking the causal Link between “use” of
the Wehiele and the injuries inflicted :
‘The third factor [1s] whether the injuries resulted
trom use of the vehicle for transportation purposes.
Chock v. Gov't Emplovees Ins, Co., 103 Hawai'i 263, 267-68, 61
P.3d 1178, 1182-83 (2003) (citing AIG Hawaii Ins, Co, v. Estate
of Caraang, 74 Haw. 620, 640-41, 851 P.2d 321, 330-31 (1993)
(citing Cont’1 W. Ins, Co. v. Klug, 415 N.W.2d 876, 877-79 (Minn.
1987))). See also HRS § 431:10C-103 (Supp. 2004) (providing in
relevant part that, for purposes of Hawaii's Motor Vehicle
Insurance Law, “*Operation, maintenance, or use with respect to a
motor vehicle’ includes occupying, entering into, and alighting
from it, but does not include . . . [cJonduct in the course of
loading or unloading the vehicle, unless the accidental harm
occurs in the immediate proximity of the vehicle[.]”).” Because
* Additionally, a8 one tre
rt
explained:
tn determining whether on accident arose out of the
use of the automobile, the totality of the circumstances
‘ding op to the accident should be
examined. Uh arises out of the
{anerent nature of the sutonobile. Thus, whether an injury
[orone arising cut of the use of an insured vehicle may De
determines by whether the vse is reasonably consistent with
the inherent nature of the vehicle, and it does not matter
whether the insured’ act takes plsce in actual operation of
The vehicle or in sone other use!
8 tee R. uss and Thomas F. Segalla, Couch on Insurance 3d, § 119:37 at 119-56
(1997) (footnotes omitted).
2
*** FOR PUBLICATION ***
ee
the phrase “arising out of the ownership, maintenance, use or
entrustment to others of any . . . ‘auto’” has the same meaning
in the context of an automobile coverage clause as it does in a
CGL automobile exclusion clause, we use this same three-factor
test to determine whether injuries arose from the use of an
automobile for purposes of applying the CGL automobile exclusion.
Applying this three-factor test to the instant case,
conclude that Nuramoto’s injuries arose from the use or operation
of an automobile and are therefore excluded from coverage. The
first factor -- whether the van in which Muramoto was traveling
was an “active accessory” in causing his injuries -- weighs in
favor of Northfield. Muramoto’s wheelchair tipped over while the
van was moving, causing him to be pinned in the corner of the
van; he was injured when the driver tried to assist him from this
position. As this court has stated, “The use of an automobile
naturally includes getting in and out of it.” long Chee v. Yee
Wo Chan Co., 26 Haw. 785, 801 (1923), overruled on other grounds,
Chung v, Animal Clinic, Inc., 63 Haw. 642, 647-49, 636 P.2d 721,
724-26 (1981). See also 8 Lee R. Russ and Thomas F. Segalla,
“ after making this statement, the court states: “That one does 20
negligently may constitute contributory negligence. But contributory
Resligence ia no defense to a claim for compensaticn.” Wong Chee v. Yes Wo
Chan Go.,26 How. 785, 801 (1923). Wong Chee involved a claim for workers’
Eonpensation benefite/ the employee died after falling from an automobile
Ghile cn his way to collect an account for his employers, and this court held
That the employee's widow was entitled to benefits because the accident erose
fut of the decedent’s employment
* FOR PUBLICATION
Couch on Insurance 3d, § 119:47 at 119-68 (1997) (“The insuring
term ‘use or operation’ encompasses more than just driving a
vehicle, and includes all activities ne
jarily part of driving
the vehicle, such as getting in and getting out.”).!" Even
‘though Muramoto was injured after the van had stopped moving, the
van was an active accessory in causing his injuries.
The second factor
whether there was an independent
act breaking the Link between “use” of the vehicle and Muramoto’s
injuries -- does not clearly weigh in favor of either party. The
van was stopped, such that the driver's negligence in unbuckling
Muramoto could be seen as an independent act that was separate
from the use of the van for transportation purposes (particularly
because Muranoto appears to have suffered all of his injuries
from his fall, rather than being injured by the tipping of his
wheelchair and having those injuries exacerbated by the driver's
subsequent actions). However, Aloha State was in the business of
» purthermore, as explained in 68 Appleman, Insurance Lau and Practice
(Buckley ed.) § 4316, Supp at 103 (Supp. 2004):
Automobiie coverage exists for injuries arising out of the
Use of an insured vehicle when the use of the venicle has
sone. cavsal connection to the injuries. The causal
Eequirenent has been held to be more than "bot=for”
Gaueation, but less then legal, proximate cause. That is,
Eo prove causation under a policy covering losses arising’
Eron "ose" of 8 covered vehicle, the plaintiff need only
Show that the injury originated in, grew out of, oF flowed
fron the use of the vehicle, not that the vehicle itself was
the source of the injury.
(Footnotes omitted.)
a4
*** FOR PUBLICATION ***
transporting passengers in automobiles, and Muranoto’s injuries
occurred while he was being transported in an automobile:
therefore, the driver's act in releasing Muramoto’s buckle is not
particularly “independent” from the use of an automobile.
The third factor -~ whether Nuramoto’s injuries
resulted from use of the van for transportation purposes ~~
clearly weighs in favor of Northfield as well, as Muramoto vas
injured while traveling as a passenger in an Aloha State van.
‘See Wong Chee, 26 Haw, at 801 (“The use of an automobile
naturally includes getting in and out of it.”); 8 Couch on
Insurance 3d, § 119:47 at 119-68.
applying these three factors, we conclude that
Muramoto’'s injuries arose out of the use or operation of an
automobile. Consequently, the CGL automobile exclusion bars
coverage in the instant case and the circuit court correctly
granted summary judgment in favor of Northfield.
‘The theories of liability presented in Muramoto’s
complaint do not determine the existence of coverage.
Muramoto’s complaint alleges, inter alia, that OTS and
the City were negligent in hiring, training, and supervising
Muramoto’s driver. These seemingly non-auto-related allegations
are insufficient to require Northfield to defend or indemnify OTS
or the City, however, because OTS's and the City’s liability for
as
*** FOR PUBLICATION ***
Muramoto’s injuries arises solely from the use of a motor
enicle.
Tn County of Kaua'i v, Scottsdale Insurance Co. Inc.,
90 Hawai's 400, 978 P.2d 838 (1999), we held that a comprehensive
law enforcement insurance policy, which contained an automobile
exclusion, did not cover the insured against a claim for
negligent supervision because the insured’s liability stemmed
from an automobile accident. In that case, an on-duty police
officer was driving his patrol car outside the lined portion of
the road and in excess of the speed limit when he struck and
killed Gilbert Moniz. Id. at 402, 978 P.2d at 840. Moniz’s
family sued the County of Kaua'i based on the theory of negligent
supervision: the officer had worked the previous day from 8:00
a.m, until 4:00 p.m. and then again from 11:00 p.m. until the
accident at 3:30 a.m., and Moniz’s family claimed that the
County’s negligence in scheduling the officer for too many work
hours caused the officer to be fatigued, thereby causing the
accident. Id, at 402-03, 978 P.2d at 840-41. We held that the
County was not entitled to insurance coverage for Moniz’s
family’s suit because “the County’s liability, if any, ‘arises
out off the ‘use’ of a motor vehicle [such] that the automobile
exclusion applies.” Id, at 407, 978 P.2d at 845.
Scottsdale Insurance followed this court’s decision in
Hawaiian Insurance & Guaranty Co, v, Chief Clerk of the First
16
*** FOR PUBLICATION ***
Circuit court, 68 Haw. 336, 713 P.2d 427 (1986) [hereinafter,
HIG}, in which this court held that a claim for negligent
entrustment of an automobile was not covered by a homeowner’
insurance policy. In HIG, the insured had entrusted her car to
an unlicensed minor driver, The unlicensed minor driver was
involved in an accident with two other cars, resulting in the
deaths of five minors and serious injury to another, and the
survivor and the decedents’ estates brought actions against the
owner for negligent entrustment. HIG, 68 Haw. at 336-39, 713
P.2d at 429. This court held that the insured’s homeowner’ s
policy, which contained an automobile exclusion, did not entitle
the insured to a defense or indemnification:
[n)t may be negligence to entrust an automebile to an
incompetent driver, age Restatenent (Second) of Torts $ 308
(ise5), and the enteustent + - - saa an act separal
[the driver's] operation of the Gar-. Still, the conduct of
[the Owner] and her son relative to the fatal accident was
separate “only in the fact that it preceded the collision.”
4 Cals Apps Se $24, 527,
[oocal- aper. 425, 427 (1983). for it is clear “that (the)
negligent entrustment (of an autoncbile) is irrelevant
Unless the person to whom [it] is entrusted acts in a
Regligent manner (creates an unreasonable risk) and in fact
inflicts injury ae the result of such conduct.” Bankert v
‘Thrsshermen's Mutuel Insurance Cou, 110 Wis. 24 465, 476,
S25 Heweza 150, 153 (1983) 26 Haw. 145,
Lge (i924). Or as the Suprene Judictal Court of
Maseachsseite has put it, the “*negligent entrustment’ [of
eonebile] at a distinct and specific cause of action is
clusive of, but, rather, is derived from the nore
General concepts of oumership, operation, and use of a notor
venscle." noursnee Coy 2,
LALLY, 374 Hoses 602, 08-06, 373 WE.2d 966, 969° (1578).
Id, at 340-41, 713 P.2d at 430-31. (footnotes omitted) (some
alterations in original and some added). Just as in Scottsdale
Insurance, the cause of the underlying accident in HIG was
ru
*** FOR PUBLICATION ***
negligent use of an automobile, such that the automobile
exclusion barred covera
See also Fortune v. Hong, 68 Haw.
12, 102 P.2d 299, 307 (1985) (holding that a homeowner’s policy
did not provide coverage for the insured’s vicarious parental
Liability where that liability arose from the negligent operation
of a motor vehicle by the insured’s minor child).
In this case, all of Muramoto’s injuries arose from the
use of an automobile and all liability faced by OTS and the City
stems from that use. Therefore, based on Scottsdale Insurance,
HIG, and Fortune v, Wong, OTS and the City are not entitled to
indemnification. Similarly, Northfield owed no duty to defend
OTS or the City. Although the duty to defend is broader than the
duty to indemnity, ne. we 0. of
Hawai'i, Ltd., 76 Hawai'i 277, 287, 875 P.2d 894, 904 (1994),
Muramoto’s complaint alleges that his injuries arose from the use
of an automobile; the complaint does not even mention the
driver's unbuckling of Murancto’s wheelchair belt, but rather
alleges that Muramoto’s wheelchair moved and tipped while on
route to the dialysis appointment and that Muramoto was injured
as a result. Because the allegations contained in the complaint
do not even raise the possibility of coverage, Northfield owed no
duty to defend.
18
*** FOR PUBLICATION ***
TV. CONCLUSION
Based on the foregoing, we affirm the circuit court's
March 18, 2003 first amended judgment.
on the briefs:
Wesley H.H. Ching
and Sheree Kon-Herrera
(of Fukunaga Matayoshi
Hershey & Ching, LLP)
for plaintiff-appellant/
appellee Oahu Transit
Services, Inc.
Kevin P. H. Sumida
(of Mataui Chung Sumida
& Tsuchiyana) for third-
party defendant-appellee/
appellant City and County
of Honolulu
Gregory K. Markham,
Keith K. Kato, and
Jeffrey S. Masateugu
(of Chee & Markham) for
defendant -appellee/appellee
Northfield Insurance Company
19
Grim
Lr Phiriner—
Nia Ona are
ous
Gomme €. Dolly Oy
|
adf68689-791d-4502-b0cf-89b1ac2a1e67 | Nowicki v. UNUM Insurance Company | hawaii | Hawaii Supreme Court | No. 27291
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
qa
JACEK NOWICKI, Plaintiff-Appellant
616
UNUM INSURANCE COMPANY; PACIFIC INSURANCE; R.M. TOWILL
CORP.; STATE OF HAWAT'T DEPARTMENT OF LABOR AND INDUSTRIAL
RELATIONS; CITY AND COUNTY OF HONOLULU DEPARTMENT OF PUBLIC
WORKS; AND JOHN DOES 1-5; JOHN DOE CORPORATIONS 1-5; JOHN DOE
PARTNERSHIPS 1-5; ROE NONPROFIT CORPORATIONS 1-5; AND ROB
GOVERNWENTAL AGENCIES 1-5, Defendants-Appellees
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 03-1-0743)
‘ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.,
and Intermediate Court of Appeals’ Judge Foley,
in place of Acoba, J., recused)
upon consideration of Plaintiff-Aappellant Jacek
Nowicki’s motion to dismiss his appeal,
and the records and files herein,
the papers in support,
it appears Appellant seeks to
dismiss his appeal because the matter between the parties has
been resolved. Therefore,
IT IS HEREBY ORDERED that the motion to dismiss is
granted, and this appeal is dismissed pursuant to HRAP Rule
42(b). The parties shall bear their oun appellate fees and
costs.
DATED: Honolulu, Hawai"i, August 17, 2005.
Arnold T. Phillips IT
for plaiatiff-appellant
on the motion
Mescette ae per
one
DR PoE
CAG
|
131de155-b44d-401d-87e1-608fee8b0231 | Williamson v. Williamson | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION ***
No, 27175
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I®
lg wv 62 Yor SoM
on
EFLEDA SALOME B. WILLIAMSON, Plaintiff-Appellée,
CALVERT A. WILLIAMSON, Defendant-Appellant.
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(EC=D NO. 04-1-1296)
‘ORDER _DISMISSING APPEAL
(By: Nakayama, J. for the court!)
Upon review of the record, it appears that the family
court’s March 8, 2005 minute order is not an appealable final
order and a final decree on the complaint for divorce has not yet
been entered in FC-D No. 04-1-1296. Thus, this appeal is
premature and we lack jurisdiction. See HRS $ 641-1(a).
‘Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
Darel
Honolulu, Hawai'i, July 29, 2008.
FOR THE COURT:
‘considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
a.
|
7c5b74f7-9ff9-478f-8826-23b70a15a8e9 | Carter v. Maxilom | hawaii | Hawaii Supreme Court |
** NOT FOR PUBLICATION **
No. 26983
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ULIE CARTER, Plaintiff-Appellant
MICHELLE MAXILOM, Defendant-Appellee
and
JOHN DOES 1-5, JANE DOES 1-15, DOE CORPORATIONS
ENTITIES 1-5, Defendants
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 03-1-0353)
NG APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that this court
informed Appellant by letter dated February 28, 2005 that the
time for filing the statement of jurisdiction expired on
February 11, 2005 and by letter dated March 29, 2005 that the
time for filing the opening brief expired on March 13, 2005, and
that, pursuant to Rule 30 of the Hawai'i Rules of Appellate
Procedure, the matter would be called to the attention of the
court for such action as the court deemed proper including
dismissal of the appeal. Appellant having failed to respond to
said letters or to otherwise oppose dismissal,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, June 8, 2005.
|
036c5f16-6b85-4a7f-921c-8fdead5ceff7 | County of Kauai by its County Attorney Lani D.H. Nakazawa v. Baptiste, Mayor, County of Kauai | hawaii | Hawaii Supreme Court | No, 27382
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
—_—
COUNTY OF KAUAT BY ITS COUNTY ATTORNEY LANI D.H. NAKAZAWA,
Plaintiff-Appellee
BRYAN J. BAPTISTE, MAYOR, COUNTY OF KAUAI, MICHAEL H. TRESLER,
DIRECTOR OF FINANCE, COUNTY OF KAUAI AND KAUAI COUNTY COUNCIL,
Defendants-Appellees
and
GORDON G. SMITH, INDIVIDUALLY; WALTER S. LEWIS, IN HIS
CAPACITY AS TRUSTEE OF THE WALTER S. LEWIS REVOCABLE,
LIVING TRUST; MONROE F. RICHMAN, TRUSTEE, RICHMAN
FAMILY TRUST; and MING FANG, TRUSTEE, MING’ FANG TRUST,
Intervenors-Appellants 3
APPEAL FROM THE FIFTH CIRCUIT COURT
(CIV. NO. 04-1-0124)
tay: Dusty, Sefer the court*)
upon consideration of the: (1) motion to expedite
sppea; (2) notion for stay pending appeals (3) notion for
injunction pending appeals and (4) petition for weit of mandamss
{hled by Intezvenors-Appellants Gordon G. smith, Walter S. Lewis,
in his capacity as Trustee of the Walter S. Lewis Revocable
Living Trust, Monroe F. Richman, Trustee, Richman Fanily Trust,
and Ming Fang, Trustee, Ming Fang Trust (Appellants), the papers
in support and opposition, and the records and files herein,
* considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 23.
aq
IT 1S HEREBY ORDERED that:
1. The motion to expedite the appeal is denied. Denial of
this motion does not preclude the parties from agreeing to an
expedited briefing schedule or Appellants from filing their
briefs earlier than required by HRAP Rule 28 after the record is
transmitted.
2. The motion for stay pending appeal is denied without
prejudice to Appellants seeking relief in the court appealed fron
im the first instance in accordance with HRAP Rule 8(a).
3. The motion for injunction pending appeal is denied
without prejudice to Appellants seeking relief in the court
appealed from in the first instance in accordance with HRAP
Rule 8(a).
4. The petition for a writ of mandamus is denied.
DATED: Honolulu, Hawai'i, July 7, 2005.
fobert H. Thomas FOR THE COURT:
for intevenore
appellants on the
notion Bore esoa: te.
Associate Justice
Pamela A. Fong
for plaintiff-appellee
in opposition
|
d569a5b5-7068-414e-9692-23a55b9265bd | Puuohau v. Gates | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION ***
No. 27099
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
JARED PUUOHAU, Plaintif¢-Appellant
BILL GATES, Defendant-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 05-1-0078)
ORDER DISWISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and buffy, JJ.)
Upon review of the record, it appears that (1) the
supreme court clerk's office informed Appellant, by letter dated
May 3, 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 proc
Pauperis; therefore,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, June 6, 2005.
din forma
aa
|
ed3e8c7e-5e2e-41bc-8ffc-f01353dae3ad | Morimoto v. Board of Land and Natural Resources. | hawaii | Hawaii Supreme Court | ‘***FOR PUBLICATION*#*
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
-000---
—
DANIEL MORIMOTO, N.D.; and KATS YAMADA,
Appellant -Appellants
BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I
HAWAI'T STATE DEPARTMENT OF TRANSPORTATION:
UNITED STATES DEPARTMENT OF TRANSPORTATION,
Appellees-Appellees
No, 25169
MG HIHd €2.
APPEAL FROM THE THIRD CIRCUIT COURT
(clV. No. 01-21-0456)
May 23, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBA, J.
Appellants-Appellants Daniel Morimoto, M.D. (Morimoto)
and Kats Yamada (Yamada), pro se, (collectively, Appellants),
appeal from the May 28, 2002 judgment of the circuit court of the
third circuit! (the court), affirming an administrative decision
of Appellee-Appellee Board of Land and Natural Resources (BLNR)
‘The BINR's decision approved the application of Appellees-
| the Honorable Greg K. Nekenora presided.
qa
‘***POR PUBLICATION*+*
Appellees Hawai'i State Department of Transportation and the
United States Department of Transportation, Federal Highways
Administration (FHA), (collectively, Appellees) for a
conservation district use permit to upgrade Saddle Road in the
County of Hawai'i. We affirm the court’s order.
I.
This appeal concerns BLNR’s decision to grant a
conservation district use permit (COUP) for a project to upgrade
State Highway 200, also known as Saddle Road, to a two-lane
highway that would comply with the design of the American
Association of State Highway and Transportation Officials for
rural arterials and accommodate an expected increase in traffic
flow along the highway.? A CDUP was required because the project
proposed @ realignment route, referred to as PIA-1,? that would
traverse 206.70 acres of conservation district lands.‘
2 the factual background herein, which 4s derived from BLNR’s
Lindings of fact, conclusions of 1am, and decision end order, 1s uncontested
by the parties, unless so noted
® ptm refers to the Fohakulos Training Ares.
‘the Departnent of Land and Natural Resources (DLNR) is responsible
for managing conservation districts and issuing pernite for conservation
districts. Hawai'i Revised statutes (HRS) § 18%¢~3 (Supp. 1994) provides, in
Pertinent part, that the DINR shall
is) Establien categories of uses or activities on
conservation lands, including allowable uses or activities
for which no permit shall be required;
(6) Establish restrictions, requirements, and
conditions consistent with the ctangards set forth in this
chapter on the use of conservation lands: end
(7) Establish and enforce land use regulations on
conservation district lands including the collection of
Hines for violations of land use and terms and conditions of
permits issued by the [OLNR)
“6 (2) (Supp. 199¢) provides thet the OLNR “shall
Additionally, BRS § 183)
(comined.)
‘**#F0R PUBLICATION***
ee
PTA+1 was selected from amongst a list of alternative
routes after Appellees and other government agencies completed an
environmental impact statement (EIS) to comply with the National
Environmental Policy Act, 42 U.S.C. $§ 4321-4370f, and Hawas's
Revised Statutes (HRS) chapter 343. The EIS incorporated a
July 27, 1998 biological opinion (80) issued by the United States
Fish and Wildlife Service (FMS). The opinion represented a
culmination of inter-agency consultation as required under
section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536.
Appellees had initiated section 7 consultation by requesting that
FWS provide them with information on any “listed species”* or
critical habitat’ within the project area. Based upon the list
continued)
regulate and use in the conservation district by the issuance of permits.”
Under section 718) (2) of the ESA,
lelach Federa2 agency shall, in consultation with and with
the essistance of the Secretary [of the Interior], insure
that any action authorized, funded, oF carried out by such
agency ss ie net likely to jeopardize the continued
Gristence of any endangered species or threatened specis
Healt in the destruction or adverse modification of habitat
Gf such species which ie detersined by the Secretary, after
Consultation as appropriate with affected states, to be
critical [1
26 U.S.C. § 1836(8) (2). This process is referred to as section 7
consuitation.
“Listed species” are legally protected species designated by the
FS as endangered, threatened, proposed endangered, and proposed threatenes.
7 section 3(5) (A) of the ESA defines “critical habitat” as
(4) the specific areas within the geographical a
cocupied by the species, st the tine it is listed in
Sccordance with the provisions of [Section ¢ of the ESAl, on
Which ave found these physical or Biological features (1]
Cssential to the conservation of the species and (11) which
hey Tequire special managenent considerations or protection:
and
(continved..)
‘***FOR PUBLICATION*#*
of species provided by FWS, Appellees then conducted biological
inventory surveys. A biological assessment (BA),* which
addressed potential impacts of the realignment project on the
Listed species, was prepared by Appellees.
Seven of the endangered/threatened species evaluated in
the BA are relevant to this appeal. Specifically, the BA
established that (1) moderate numbers of the Hawaiian Hoary Bat
(Ope'ape'a) were observed, (2) a single Palila (finch-billed
honeycreeper) was detected, although three other sightings were
previously documented, (3) no ‘Akiapbla‘au were observed, but two
sightings were previously documented, (4) Nen& used the area on a
regular and incidental basis, (5) during breeding season, the
Dark-rumped Petrel ('Ua‘u) was seen flying over the area, (6) tuo
populations of Silene hawaiiensis (a sprawling shrub known to
"(consimsed)
(34) apecitic are:
outside the geographical exes
occupied by the species at the tine it ss listed in
accordance with the provisions of [Section ¢ of
jpon a determination by the Secretary that such are:
sSsentisi for the conservation of the species.
Esal,
16 U.S.C. § 1832(5) (A) (2004). Section 4 of the ESA, entitled “Determination
of endangered species and threatened species,” authorizes and outlines the
process for determining "whether any species is an endangered or a threatened
Species.” 16 U.5.c. § 1533(a) (1) See aauarally 16 U.s.c. § 1533.
* pursuant to section 7/c) of the ESA,
‘each Federal agency shall . . . request of the Secretary
information whether any species which is listed or prope
to be listed may be present in the eres of such proposes
If the Secretary advises, based on the best
Hic and commercial data available, that such species
ay be present, such agency shail conduct & Piological
Gesessnent for the purpose of icentifying eny endsngered or
threatened species which is likely to be affected by such
16 U.8.C. § 1836(e)
‘***FOR PUBLICATION®#*
eee
exist only on the Island of Hawai"i) were located in the area,
and (7) there was a possibility that the Hawaiian Hawk (‘To)
would use the area for nesting, although none was detected.
Based upon these findings, the BA concluded that (1) it would be
sunlikely” that the realignment project would have a deleterious
impact on the Hawaiian Hoary Bat and the Nen®, (2) fire posed a
threat to the ‘Akiapola'au, Palila, and Silene hawaiiensis, and
(3) Lighting used in the project might disorient the Dark-rumped
Petrel.
‘The BO issued by FWS, largely based upon the
information in the BA, observed that two of the species, the
Palila and Silene hawaiiensis, required specific attention.
‘Thus, the BO included a detailed plan to offset damage to Palile
critical habitat and minimize effects on the species. To
mitigate the approximately 100 acres of Palila critical habitat
taken up by the construction of PTA-1, the plan called for, inter
alia, the acquisition and managenent of approximately 10,000
acres for Palila hebitat restoration and an attempt to
reintroduce the Palila to areas within their historic range where
they had not resided. Appellees, BINR, and other agencies signed
‘a menorandum of understanding (MoU) to implement the Palila
mitigation plan. With respect to the Silene hawaiiensis, the
proposed alignment path was moved south to avoid 2 population of
seventy plants.
‘The BO also incorporated the following additional
mitigation measures, which FWS considered to be part of the
‘***FOR PUBLICATION***
proposed project: (1) lighting restrictions to avoid potential
downing of the Dark-rumped Petrels; (2) a plan for minimizing
fixe hazards; and (3) with respect to the Hawaiian Hawk, “nest
searches” by a qualified ornithologist prior to the onset of
construction and, in the event an “active nest” is detected, the
halting of the project within one kiloneter of the nest and the
initiation of consultation with FWS. Ultimately, the BO
concluded as follows:
After reviewing the current status of the (PJalila and its
Critical habitat and the current status of Silene’
haaiieneie, the environnental baseline of the species in
the action ares, snd the effects of the proposed Sede Road
Realignnent and Inprovenent Project, including the
Cunulacive effects, it 1s [FHs"s] biologics! opinion that
the Saddle Road Reslignment and Inprovenent Project 1s not
Likely to Jeopardize the continued existence of the [Plalila
or Silene iaueiiensis and is not likely to adversely modify
[Pjaitia critical habitat, These findings are based in
large part on the conservation Basle snto ehe
project by [FHA]... [FWS] believes that the mitigation
esgures built into the project design by [FHA] will offset
the modifications being mace to (FJalila critical habitat
and enhance the litelinood of survival and recovery of the
TPlaliis.
In October 1999, at the close of the EIS process and
section 7 consultation, FHA issued a record of decision (ROD)’
that (1) confirmed PTA-1 as the selected route and (2) legally
bound Appellees to implement the mitigation commitments
delineated in the EIS and the BO. The ROD also required
Appellees to incorporate the mitigation commitments into all
construction contract documents. The mitigation plan in the ROD
received wide support from scientific, regulatory agency, and
environmental communities, and segments of the local community.
+ according to BLNR finding no. 5€, the "ROD is @ legally binding
document that ensures implementation of the Conitnents of the EIS."
***FOR PUBLICATION*#*
ee
I
Appellees filed their application for a CDUP on January
21, 2000, The application included a draft EIS as required under
Hawai's Administrative Rules (HAR) § 13-5-31(a) (1)" and noted
that a ROD would be issued in November 1999." As mentioned
previously, the 80 was included in the EIS."* On April 24, 2000,
BLNR held a public hearing on the application. At the public
hearing, Yamada orally requested a contested case hearing to
challenge Appellees’ application. Morimoto was permitted to
intervene in the contested case on November 20, 2000. The
contested case hearing was held on February 12, 13, and 14, 2001,
with a hearings officer presiding. On May 8, 2001, the hearings
officer issued his proposed findings of fact, conclusions of law,
and decision and order.
on July 9 and 27, 2001, Yamada filed the following four
motions, in which Morimote joined: (1) a motion to determine
that mitigation for use of a portion of the Palila critical
habitat cannot be used as a justification for the issuance of @
© wag § 13-5-31¢
(2) (1994) provides, in relevant part, a8 follows:
§ 13-5-32 Permit applications. (a) Applications for
‘all permits proviced for in this chopter shell be submitted
fo the department on the form prescribed by the department.
The application shall contain:
a)"R drage environmental i
Ampact statement, as applicable(.)
sment, oF environmental
"the aplication also noted that the realignment project “has been
the subject of an ils) in accordance with the National Envirensentel Policy
het of 1969 as amended (NEPA) and (HRS) Chapter 343 federal Recors
Of peckeien ie scheduled to be issued in Novenber 1999.
BING established this fact in finding ne. 9€, which is uncontested
by the parties
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COUP; (2) a motion to determination the existence of nine
endangered and threatened species in or near PTA~1; (3) a motion
to determine that a sixty-meter-wide survey is not legally
sufficient; and (4) a motion to comply with HAR § 13-1-40(c).””
On October 4, 2001, BLNR issued its findings of fact
(findings), conclusions of law (conclusions), and decision and
order granting the COUP to Appellees subject to fifteen
conditions. In conclusion no. 2, BLNR determined that Appellees’
application “satisfie(d] the requirements set forth in HAR
Section 13-5-30(c)." Its decision and order provided in part
that
a1 Jeation
Yor this project, including but not. Limited to:
implonentation of the fire and other
gnvironsentel commitments identified in the
Record of Decision;
Palila mitigation at the Ka ‘che lease area:
Palila mitigetion ae Puy alli):
Palila mitigation at Kipoke ‘Alela; and
a continuing stody of the (Slilene pawaiiensis [be]
hereby incorporated as conditions of the perait.
(Emphasis added.) BLNR also denied Yamada’s four motions in
conclusion no. 7."
BAR § 13-1-40(c) (1962) states as follows
§ 13-1-40 Decisions and orders.
ic} “Every dectaton and order adverse to a party to
the proceeding, rencerea by the beara in a contested case,
shall be in writing or stated in the record and shall be
companied by seperate fingings of fact and conclusions of
low. Tf any party to the proceeding has filed proposed
Findings of fact, the board shall incorporate in its
decision ruling upon each proposed Findings [sic) s0
presented!
Conclusion no. 7 stated as follows:
(coniaued.)
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qr.
on October 23, 2001, Appellants filed an appeal of
BLNR’s decision to the court pursuant to HRS § 91-14 (1993).
In its resulting decision and order, the court rule
1, The BINR's mixed finding of fact and conclusion of
law that the use of the lang as 2 roadway will aot cause
substantial adverse inpact_uoon endangered and threatened
‘besiege is not clearly erroneous.
3.) ing 8
. ene Paula ((sic})
Sh determining chat. there will not be o substantial adverse
Ampact to existing natural resourees within the surrounding
area, community oF region
131.” The BLNR’s denial of Appellant Yamada’s motions:
does not warrant reversal of the BLNR decision
i4].” The BLWR decision does not violate Article TX,
S'Conatitution and Public Trost
Doctrine. {*)
.comtinged)
‘The motions of (Yamada) are denied. [His] motion to
Gctermine that mitigation for use of a portion of the Pallla
critical habitet cannot be used as 2 justification for the
Geeuance of the COU(D], a motion to determine the existence
of nine endangered and threatened species in or near PTA-L,
Sno motion to determine that a 60 meter survey ie not
legally suftictent largely represent argunents set out in
(Yanada’ s} proposed fingings of fact ana conclusions of law
and [his] objections to the Hearing Officer's Did.” While
, (BLAR] allowed (him) to make arguments on
the motions st oral argument. [Yanada’s) notion eo comply
leith Role i3-1-¢0(c}, HAR, i denied. Zhe format of [his],
ronosed findings of" tact’ and conclusions of lax in’
inushered textual parearaphe ede it-aifficult for the
To the
Hearing Officer and (plaRl to address-{niel concern.
extent not sddrested by the Hearing Officer or this Decision
fang Order, (BLNR] finds that the proposed findings of fact
fand eonelusions of law are denied.
(Emphases added.)
% RS § Si-14(a) provides that “falny person aggrieved by # final
decision and order ins contested case... ig entitled fo judicial review
thereof uncer this chapter{.]"
“in this jurisdiction, the Public Trust Dectrine has been adopted
“fundamental principle of constitutional law, "dn re Mater Use Perm
Jicetions (waiaholel, 9 Havsi'i 97, 132, 9 P.36 409, 4e4 (2000), and 5
Serived from Article #1, section 1 of ‘the Nawal Constitution, Article X1,
Section 1 provises that
(continued.
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(Emphases added.) With respect to ruling (2), the court observed
as follow:
Firet, in Stop isd Association ws state, 68 Hawai's
154 (1985), the Hawal't Supreme Court stated that the BLNR
could allow a use within « concervation district by
Senditioning approval “on compliance with Reasure:
nnitigatine the environmental consequences to the area.”
Ta, (sic) 68 await et 163, Therefore, there is a
by the Hawai's ‘Soprene Court that the grant of @
Conservation district use permit may be based upon
conditions requiring mitigation measures.
(Emphasis added.)
The court issued its final judgment affirming the
BLNR's decision on May 28, 2002. On June 17, 2002, Appellants
filed a notice of appeal.
Ww.
on appeal, we list the separate arguments raised by
Appellants in related order, nunbered consecutively for
convenience. Yamada argues that (1) “mitigation cannot be used
to quality the applicant for a CDUA permit since it is a new rule
requiring adoption pursuant to HRS 91-3"; (2) “the lower court's
determination that mitigation is permitted is in error” because
(2) “the inclusion of the standard conditions in HAR 13-5-42 does
contin)
For the benefit of present and future gene:
State and its political subdivisions shail conse,
protect Hewaii's netural beauty ang all natural resources,
Including land, water, air, minerals and energy sources, and
shall promote the development and utilization of these
Fesources in a manner consistent with their conservation and
In furtherance of the self-sufficiency of the Seate
All public naturel resources ave held in trust by the
state for the benefit of the people:
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—_—_—__—_ SSS
not permit the Board to mitigate the impact of the proposed land
use to qualify the applicant for the CDUA permit,”
(b) “mitigation of the criteria for the issuance of the CDUA was
not permitted by Stop H=3 [Ass'n v, State Dept. of Transp, 60
Haw. 154, 706 P.2d 446 (1985),],” (c) the Board cannot interpre
its own rules in a way that it includes provisions not otherwise
permitted by its rules,” and (d) “the proposed land use of the
Palila critical habitat which also houses eight other endangered
and thr
ened species is not consistent with the legislative
purpose of conserving and protecting those lands"; Morimoto
argues that (3) “the BLNR committed an error of law when it
considered mitigation measures relating to the Palila in
determining that there will not be a substantial adverse impact
to existing natural resources within the surrounding area,
conmunity or region”; Yamada further argues that (4) “the
presence of nine endangered and threatened species found in and
adjacent to the PTA-1 Corridor requires that the entire area be
protected from the proposed use”; (5) “Applicants only conducted
2 60 meter roadway corridor survey and as 2 result failed to
Genonstrate that they have met criteria required of HAR 13-5-
30(c)(4)"7 Morimoto further argues that (6) “the BLNR mixed
finding of fact and conclusion of law that the proposed roadway
will not cause @ substantial adverse impact upon endangered and
threatened species is clearly erroneous”; (7) “the BLNR's denial
of (Yamada‘s} motions warrants reversal of the BLNR decision,”
and (8) “the BLNR decision violates Article XI, section 1 of the
ene
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Hawai'i Constitution and the public trust doctrine.” Ultimately,
Appellants seek reversal of the court's decision and denial of
the coup.
v
“Review of @ decision made by @ court upon its review
of an adninistrative decision is a secondary appeal. The
standard of review is one in which thie court must determine
whether the court under review was right or wrong in its
decision.’”
07, 97 P.3d 372, 382-83 (2004) (quoting Soderlund v. Admin. Dir.
of the Courts, 96 Hawai'i 114, 118, 26 P.3d 1214, 1218 (2001)).
HRS § 91-14(g) sets forth the appropriate standards for
reviewing agency decisions. It provides that a court may reverse
or modify a decision and order of an agency if the order is:
(2) In violation of constitutional or etetutory
provisions? or
(2) Tnvexcese of the
of the ase
(3) Made upon undaweat pr:
(4) Affected by other error of le
(5) Clearly erroneous in view of the relsable, probative,
‘and substantial evidence on the whole record) oF
(6) Arbitrary, or capricious, or characterized by abuse of
Giseretion or clearly unwarranted exercise of
Siscretion.
‘This court noted in Braga v, State Farm Mut, Auto, Ins, Co., 81
Hawai'i 302, 304-05, 916 P.2d 1203, 1205-06 (1996), that “[u)nder
atutory authority or jurisdiction
HRS § 91-14(g), conclusions of law are reviewable under
subsections (1), (2), and (4) . . . findings of fact are
reviewable under subsection (5); and an agency's exercise of
discretion is reviewable under subsection (6).” Morimoto cites
ni
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ee
to the foregoing sections and Yamada cites to the aforesaid
right/wrong standard.
In an appeal from a circuit court's review of an
administrative decision, “the clearly erroneous standard governs
an agency’s findings of fact(.]” Lanai Co., 105 Hawai'i at 307,
97 P.3d at 383 (internal quotation marks and citation omitted).
“Aan agency's findings are not clearly erroneous and will be
upheld if supported by reliable, probative and substantial
evidence unless the reviewing court is left with firm and
definite conviction that a mistake has been made.” Poe vs
Hawai'i Labor Relations Bd., 105 Hawai'i 97, 100, 94 P.34 652, 655
(2004) (internal quotation marks and citation omitted) .
“substantial evidence is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion.” Lanai Co., 105 Hawai'i at 308:
09, 97 P.3d at 384-85 (internal quotation marks and citations
omitted). “(T]he courts may freely review an[] agency's
conclusions of law.” Id. at 307, 97 P.3d at 383 (internal
quotation marks and citation omitted).
vr.
AL
In Argument 1, Yamada maintains, in effect, that
mitigation measures cannot be considered in reviewing the
application for a CDUP, unless a new rule concerning mitigation
is adopted pursuant to HRS § 91-3. He points out thet no rule
exists giving BLNR authority to consider mitigation measures
ae
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because HAR § 13-5-30(c) (4) refers to the impact on “existing
natural resources.” (Emphasis added.) Hence he maintains that
“HAR 13-5-30(c) (4) only commands the (BLNR] to determine if the
proposed land use will cause [such] substantial impact” without
consideration of palliative measur
It may be noted, first, that while HAR § 13-5-30(c) (4)
does not refer to mitigation, mitigation is contemplated in
another rule within the same subchapter.!” HAR § 13-5-42(a) (9)
states that “[a]1l representations relative to mitigation set
forth in the accepted environmental assessment [(EA)] or impact
statement [(BIS)] for the proposed use are incorporated as
conditions of the permit{.]” (Emphases added.) As stated
previously, HAR § 13-S-31(a) (1) required Appellees to submit an
EIS as part of their COUP application. Included in the EIS was
the BO prepared by Fws."*
In that regard, the BO made clear that FWS’s finding of
“no jeopardy” to the Palila and Silene hawaiiensis and “no
adverse modification” to Palila critical habitat was “based in
large part on the conservation measures built into the project by
[fHA].” By requiring that mitigation measures set forth in the
mitle 13 chapter 5 of the HAR, entitled “Conservation District,”
governs the regulation ef “land use in the conservation district for the
Burpose of conserving, protecting, and preserving the important natural’
Fesources cf the State through appropriste management and ose to provect thesr
Jong-term sustainability and the public health, safety, and welfare.” BAR §
15:5-2' (1954), Subchapter of chapter 5, titie 13, delineates the procedures
for permits, site pian approvals, and management plans. NAR § 25-5-30(c)y
establishing the COUP criteria, and HAR § 13-s-«2(a), establishing stancard
Conditiens for COUPs, both fali within subchapter 4
‘See sumza note 12
14
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EIS be made part of the conditions of the permit, HAR 13-5-
42(a) (9) not only authorized, but legally mandated the BINR to
consider such measures in reviewing the application.
Yamada’s position that BLNR could not consider
mitigation measures set forth in an EA or EIS would negate HAR
§ 13-5-42(a) (9), which makes mitigation in an EA or EIS an
automatic condition of a COUP. We must give effect to both
rules. Topliss v. Planning Comm'n, 9 Haw. App. 377, 391 n.11,
842 P.2d 646, 657 n.11 (1993) (*{A]dninistrative rules must be
read so as to give them effect.” (Citing State v. Tom, 69 Haw.
602, 752 P.2d 597 (1988) In that light, Appellants’ narrow
interpretation of HAR § 13-5-30(c) (4) must be rejected. Hence,
Yemada’s Arguments 2(a), stating that “the inclusion of the
standard conditions in HAR 13-5-42 does not permit the Board to
mitigate the impact of the proposed land use to qualify the
applicant for CDUA permit,” and 2(c), stating that “the Board
cannot interpret its own rules in a way that includes provisions
not otherwise permitted by its rules,” must be likewise rejected.
Moreover, as BLNR noted in its findings nos. 56, 58,
and 121 and conclusion no. 43,* Appellees were legally bound to
% this opinicn does not address whether the rules authorize BLAR to
consider mitigation measures independent of an EA or EIS in issuing COUPs, oF
to, in Yenasa’s words, “mitigat(e] the criterie.”
* appellants do not challenge BLNR's findings nos. $6, 58, and 121,
wnich esteblish thet the “ROD is 8 legsily Binding docunent that ensures
Implementation of the commitments of the EIS(,]" thet the "ROD describes the
environmental mitigation ccamitnents that must be implenented by [FHA], in
{li cooperation with ell effected regulatory agencies,” that FAA “will
incorperste these commitments inte the construction contract documents es
(cominued.)
nis
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implement the mitigation measures in the BO and EIS. Hence,
these measures were already part of the realignment project when
At came before BLNR. The application thus was inclusive of the
mitigation measures as it was presented to the Board.
Consequently, the proposal with the incorporated measures
required by HAR 13-5-42(a) (9) would cone within the meaning of
the phrase “proposed land use” in HAR § 13-5-30(c) (4). Under
these circumstances, BLNR had the authority to consider the
mitigation measures in the BO, E18, and ROD in evaluating
Appellees’ COUP application without undertaking further
rulemaking.
B.
le observe that the policies underlying rulenaking, as
announced in Aluli v. Lewin, 73 Haw. 56, 628 P.2d 602 (1992), and
wads Prin ki Cox f Hono!
89 Hawai'i 301, 974 P.2d 21 (1999), axe not implicated in this
case. In those cases, this court sought to ensure that permit
applications “be reviewed fairly and consistently,” Aluli, 73
Haw. at 61, 628 P.2d at 805, and that agency discretion be
exercised “fairly and uniformly,” Hawaii Prince Hotel, 89 Hewai'i
> continues)
reguiresente of the contractor and subcontractors,” that these “commitments
will be enforeed by the [PHA] Eroject Engineer[,)* end that FHA "hae mace
Tegaily binding commitments in the AOD te undertake significant mitigative
steps to offset any potential ispacts on Falils critical habitet.” Appellants
aise do not contest BLNR’s conclusien no. 43, which states that the
Scomprenensive conditions to the inplenentation of the project imposed by the
Ob, which are legally binding upon [FHA] in order for the project to proceed,
protect ang enhance the natural envizonmentel, cultural, historical and other
“16
‘***FOR PUBLICATION***
at 393, 974 P.2d at 33. Both decisions observed that without
rulemaking,
tthe affected public cannot fairly anticipate or addre
Procedure as there is no specific provision in the sti
Er regulations which describe the determination process.
he publ es
‘The public hes
been afforded no meaningful opportunity to shape these
Criteria that affect their interest,
Ida (quoting Aluli, 73 Haw. at 60, 828 P.2d at G04) (emphasis
added) «
Here, when an applicant submits its application for a
COUP, the public and interested parties know that BLNR will
evaluate the application in accordance with the eight criteria in
HAR § 13-5-30(c), that BLNR will look to any draft EIS or EA that
must be submitted as part of the application, and that BLNR will
incorporate any representations in the BIS or EA (relevant to
mitigation) as a condition of the CDUP. ‘These rules provide
sufficient guidance te CDUP applicants and the public, offsetting
the threat of “unbridled discretion.” Aluli, 73 Haw. at 61, 628
P.2d at 805.
c.
As noted in Argument 2(b), Yamada asserts that the
court erred because “mitigation . . . for the issuance of the
cDU[P] was not permitted by Stop H-3{.]” In its decision and
order, the court made reference to Stop H=3. Although similar to
this case in some respects, Stop H=3 is not germane. The
appellants in Stop H-3 argued that BLNR “exceeded its authority”
in approving the H-3 North Helawa Valley realignment. 68 Haw. at
“17
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158, 706 P.2d at 450. The appellants there claimed that “H-3
will so drastically compromise the integrity of the conservation
district that use of the regulation [at issue, HAR § 13-2-
12(c) (8) (1984),] . . . [was) absolutely precluded under the
enabling statute.” Id, at 161, 706 P.2d at 451 (emphasis added).
‘Thus, this court restricted its inguiry to whether the applicable
statute, HRS § 183-41, authorized the issuance of the CDUP.
In the instant case, Appellants do not challenge BLNR’s
statutory authority to grant the COUP. Rather, Appellants
maintain that BLNR had to comply with HRS § 91-3 rulemaking
procedures before it could consider mitigation in evaluating the
DUP application. Thus, Stop H-3 is not applicable.
Nevertheless, for the reasons stated herein, the court was
ultimately correct in affirming the BLNR’s October 4, 2001 order.
See Lanai Co., 105 Hawai'i at 306, 97 P.3d at 382 (affirming the
court’s order but on alternate grounds (citing Tavlor-Rice v.
State, 91 Hawai'i 60, 73, 979 P.2d 1086, 1099 (1999) (“(T]his
court may affirm a judgment of the trial court on any ground in
the record which supports affirmance.")).
vit.
As to Argument 2(d), Yamada maintains that “(t]he
proposed land use of the [PJalils critical habitat is not
consistent with . . . legislative purpose[.)" For this
proposition, Yamada cites to (1) HAR § 13-S-1 which states, inter
alia, that “the purpose of this chapter is to require land use in
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ee
the conservation district for the purpose of conserving,
protecting, and preserving the important natural resources of the
State”; (2) HRS § 195D-2, which defines “conserving”;*
(3) Palila v. Hawaii Dep't of Land ¢ Natural Res., 649 F. Supp.
1070, 1076 (D. Haw. 1986) (Thus, one of the main purposes of the
[endangered species Act] was conservation and preservation of the
ecosystens upon which endangered species depend.”); and (4) HRS
§ 195D-5(b) (1993) (stating that “the office of the governor
shall review other programs administered by the [Department of
Land and Natural Resources}, and to the extent practicable,
utitize such programs in furtherance of the purposes of this
section”).
Yamada argues that “to the extent that there are
conflicts in the rules and statutes, the latter must prevail,”
but does not set out the specific way in which the foregoing
authorities were violated. Thus, we do not decide this
contention. Norton in. Dir. wet, 80 Hawai'i 197,
200, 908 P.2d 545, 548 (1995) (noting that a point of error may
be disregarded if the eppellant fails to present 2 discernible
argument (citing Hall v. State, 10 Haw. App. 210, 218, 863 F.2d
% RS § 1950-2 (1993) states that
“[clonserve", “conserving”, and “conservation” mean to use
and the use Of sll methods end procedures for the purpose of
Increasing and maintaining populstions of aquatic Life
wilelife, end Lend planta, “Such methods and procedur
Ynelude, bot are not limited to, activities such as
Tesearch, census, habitat acquisition, protection,
haintenshee, propagetion, live trapping, regulated taking,
Tow enfercenent and traneplantation «J
a9
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344, 348, cart, denied, 76 Hawai'i 246, 868 P.24 464 (1993),
recon. denied, 60 Hawai'i 357, 910 P.2¢ 128 (1996).
vin.
As to Argument 3, Morimoto contends that consideration
of mitigation measures was error because the BLNR failed “to
specify the impact{,] . . . to specify the diminution{,] . . . to
address other endangered species{, and} . . . engaged in new
rule-making.” Relatedly, Yanada asserts as to Argument 4, that
the entire area must be protected from the project. He
remonstrates that (1) Appellees were not aware of Asplenium
fzagile, (2) findings 115-141 only deal with the Palila
mitigation plan and “the criteria (of the HAR] requires examining
the mpact to the existing natural resources(,]" (3) there was no
demonstrative evidence presented that the use met the criteria in
HAR 13-5-20(c), (4) the survey was Limited to the PTA-1 corridor
and not to the surrounding area, ($) one-hundred acres of
habitat lands are being removed from the other eight endangered
and threatened species but there are no mitigation land being
proposed for those species.
‘As to Morimoto’s first and second and Yamada’s second
concerns, we have said, supra, that, in the circumstances of this
addressed in the
= —_Appellante’ argunents as to rulemaking wert
preceding section and, thus, are not discussed further.
® _ this contention is treated in Part IX, in the discussion of the
fifth Argurent
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ee
case, BLNR must consider proposed ameliorative steps in
evaluating the substantial adverse impact criterion. Contrary to
Morimoto’ s argument, the findings regarding Palila mitigation are
responsive to the perceived impact of the realignment project
upon the species. BLNR found, in finding no. 117, that “a small
portion of Palila critical habitat . . . must be used” for the
project. Finding no. 120 noted that “[nJo Palila have resided in
the portion of the Palila critical habitat located in the
environs of PTA+1 (PTA Training Areas 1-4) for decades.”
Finally, finding no. 121, expressly referencing impacts,
recognized that Appellees have “nade legally binding commitments
in the ROD to undertake significant mitigative steps to offset
any potential impacts on Palila critical habitat.” These
findings, in addition to other findings that explain Appellees’
mitigation commitments, dispel Appellants’ argument that BLNR did
not consider the impact or the effect of measures to “dimin{ish]”
the impact of the project upon the Palila.
As to other endangered or threatened species,
Morimoto’s third and Yamada’s first, second, third, and fifth
concerns, the court determined that “although some listed species
were not specifically mentioned in the BLNR findings of fact,
% ——Yonada argues that finding no. 120 is erroneous because the draft
EIS and the finel EIS note 2 Palils sighting close to the eastern boundary of
Prac] as well ce other documented sightings in the general areas of PTAT
Guring the past five yeors. However, these sightings were few and not
inconsistent wish the finding that no Falile have gguided within FPA-t for
decades
aot
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evidence presented would support specific findings that they will
not suffer a substantial adverse impact as a result of the
construction of PTA-1." Based upon a review of the record,
including the BA, BO, and ROD, the court was ultimately correct
in concluding that substantial evidence existed to support the
finding that these species would not suffer substantial adverse
impact.
In finding no. 102, BLNR stated that, “[iJn general,
the extensive mitigation commitments enumerated in the ROD will
ensure that the Saddle Road improvenent project, including the
construction of PTA-1, will have no substantial adverse impacts
on any rare or listed species, and in fact will improve the
current environnental situation.” Thus, even though BLNR did not
render specific findings as to each species, it did examine the
initigation commitments in the ROD to arrive at the conclusion
that the project would not have a substantial adverse impact on
listed or rare species.
1
We note, in that regard, that the BA and BO expressly
addressed seven of the nine species identified by Appellants
according to the List provided to them by FNS. Specifically,
the BA noted the detection of moderate numbers of the Hawaiian
* ks previously noted, FHA initiated section 7 consultation by
Sending a letter to Fis requesting inforsation on the known presence of
“listes species” or critical habitat within the general project sre. On
December 27, 1990, WS responded by providing a list of species potentially
impacted by'the project. These facts were established in SLNR’s fincinge
net. 81 and 83 and are uncontested by the parti
22"
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ee
Hoary Bat, the detection of a lone Palila and three other
documented sightings, two documented sightings of ‘Akiapola‘au,
regular incidental usage of the PTA-1 area by Néné, the
overflying of the Dark-rumped Petrel during breeding season, two
populations of Silene havaiiensis, and the possible nesting of
the Hawaiian Hawk, although none were detected. The BA concluded
it would be “unlikely” that the realignment project would have a
deleterious impact on the Hawaiian Hoary Bat and the Nene, but
that fire posed a threat to the ‘Akiap0ls'au, Palila, and Silene
hawaiiensis. In response, the ROD requires that a fire ecologist
be contracted to develop a comprehensive fire management plan to
reduce the risk of fire in the vicinity of PTA-1. To avoid harm
to a population of seventy Silene hawaiiensis plants within PTA-
1, the proposed path was moved south of the population. As for
the Dark-rumped Petrel, which returns to its nesting colony after
dark, the BA noted that the major threat to these birds would be
disorientation by light. Thus, the 80 required that no
construction or unshielded equipment maintenance be permitted
after dark during breeding season and that this prohibition be
incorporated into the construction contract documents.
With respect to the Hawaiian Hawk, even though none of
these birds were detected during the surveys, the BA noted a
potential impact upon the species if a nest was located near the
construction corridor. Thus, the BA called for @ “nest search”
by a qualified ornithologist prior to the onset of construction
and, in the event an active nest was detected during
236
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construction, the BO mandated that construction halt within one
kilometer of the nest until consultation with FWS could take
place.
Appellees identified two species -~ the Aspleniun
fragile and the Pueo -- as not being surveyed or addressed in the
do
BA and BO. However, the record suggests that these speci
not exist in PTA-1. Reginald David, who prepared the BA,
testified that Asplenium fragile, an endangered plant speci
was not found within PTA-1 and was not addressed in the BO.
Yamada relied on Rare Plants of Fohakuloa Training Area by Robert
B. Shaw to establish the existence of the Aspleniun fragile in
the project area. Lena Schnell, a natural resources specialist
at Pohakuloa Training Area, testified that the species exists in
the area, but that she was “not exactly certain where.” she also
stated that she did not use Shaw's maps to conduct botanical
surveys. The only evidence of a Pueo sighting came from the
testimonies of Yamada and Or. Harvey Chan, who, while on a
hunting excursion, saw an owl cross the road in front of their
truck. Thus, the fact that the BA or BO did not report on the
Asplenium fragile or Pueo would not effect BLNR’s ultimate
decision regarding substantial adverse impact of the project.
Based on the record, substantial evidence existed to support a
finding that the species concerned would not suffer substantial
adverse impact.
24
‘**4FOR PUBLICATION*#*
OO
mx.
As to Argument 5, Yamada declares that an adequate
survey for endangered species was not conducted. Appellants
point to the testimony of David and a representation made in the
EIS, david did testify that his survey of the avian and
mammalian species was limited to the corridor “where the road
goes.” The final EIS stated that “Species inventories were
conducted by means of 100-percent pedestrian surveys within the
60-m wide corridor.”
However, as Appellees point out, David also testified
that the surveys on which the BA, 80, and ROD are based
considered the entire area of the project, not just the roadway.
For instance, David testified that his survey team “went outside
1 nd se: al of likely habitat, rocky
outcroppings, rain cuts in valleys and any promising looking
areas that given their many years of experience they would expect
to find remnant endangered species in.” Upon examination of the
BA, BO, and ROD, it does not appear that the surveys were limited
to a sixty-meter wide area where the road would traverse but,
rather, that the area surrounding PTA-1 was surveyed. As BLNR
noted in findings 86 and 87, which were not disputed, “(t]he bulk
of the listed species” were found in “the area surrounding PTA-1"
and the survey covered PTA Training Areas 22 and 23, which are
“located on the western and southern portions of PTA, distant
fromthe route selected for the proposed PTA-] realignment.”
(Emphases added.)
25
‘***FOR PUBLICATION®#*
As to Argument 6, Norinoto contends that (1) there is
no mention of HRS §§ 195D-1, 1950-2, 344-4(3), and HAR § 13-5-30
in the BLNR’s decision, (2) “a complete survey . . . cannot be
accomplished by simply doing a walk-through survey,” (3)
“disturbance would not be limited to construction events, but
also includes the use of the proposed roadway,” (4) “nine
endangered species . . . were not surveyed,” (5) “[t]he Applicant
has not demonstrated a benefit to the Palila in the proposed
Mitigation,” and (6) “the [mitigation] plan [is] illusory” since
“felffort alone can never become the standard for the proper care
and preservation of our conservation land and endangered species”
and “‘other approaches’ are nowhere specified.”
Only the fifth and sixth concerns need be discussed.**
Morimoto takes issue with finding no. 137, which states that “the
Palila Mitigation Plan does not require that Palila actually be
reintroduced/translocated into areas where they do not presently
reside. The Mitigation Plan merely requires that the effort be
made." Morimoto argues that “[e]ffort alone can never become the
standard for the proper care and preservation of our conservation
land and endangered species. with mere effort alone, the
applicant cannot demonstrate benefit to the Palila.”
‘eviously noted with respect to (1), specific violations of
not identified and WAR 13-5-30 hab been discussed sbove?
‘and (3) and (4) were incorporated in
he
(2) has been disposed of with Argument 5
the discussion on Argunents 3 and 4
-26-
‘*sFOR PUBLICATION***
eee
However, despite the fact that translocation may not be
successful, BLNR found, in finding no. 137, that if the effort to
translocate “does not ultimately appear successful, other
approaches will be tried.” (Emphasis added.) Morimoto does
argue that the approaches are not defined. But the mitigation
plan involves more than translocation. In finding no. 138, BLNR
found that the “project will not harm, and in fact will benefit
the Palila, by restoring degraded areas of Palila habitat(,)
. « (and) re-establishing mamane forest on parts of its former
rani (Emphasis added.) The plan calls for the re-vegetation
of approximately 10,000 acres of mamane forest. Thus, even
though translocation of the Pelila may not succeed, there is
substantial evidence that the Palila will benefit in other ways,
supporting BINR’s finding that the project will not harm the
species. The finding, therefore, that the Saddle Road
realignment would not cause substantial adverse impact to any
rare or listed species was not clearly erroneous.
xr.
As to Argument 7, Morimoto asserts that BLNR erred when
it denied Yanada’s notions (1) to determine that Palila
mitigation cannot be used as justification for the issuance of
the CDUP, (2) to establish the existence of nine endangered and
threatened species in or near PTA-1, (3) to determine that @
sixty-meter survey was not legally sufficient, and (4) for
21
**4FOR PUBLICATION*#*
compliance with HAR § 13-1-40(c), see supra note 13.” The court
stated that “the denial of the motions were in the nature of
decisions not to adopt certain substantive arguments raised by
Appellant Yamada, Since the BLNR decison is being affirmed
"For the
herein, the denial of these motions were prop.
reasons noted above, we also affirm BLNR’s denial of Yamada’
motions.
xi.
As to argument 6, Morimoto maintains that BLNR’s
decision violates Article XI, § 1 of the Hawai'i Constitution and
the Public Trust Doctrine. Article XI, § 1 pronounces that “the
State and its political subdivisions shall conserve and protect
Hawaii's natural beauty and all natural resources.” Appellants
assert that “the Public Trust Doctrine requires, at a minimum,
recognition that the State must affirmatively protect public
resources, including natural resources.” But as support,
Morimoto only refers to (1) “contradictions of the factual
conclusions in the record, including the finding of no
substantial impact upon the Palila” and (2) “the court’s failure
to ensure that BLNR followed proper legal requirements, including
rule-making.”
% — Yorimate challenges BLNR's denial of all four motions, but he does
not present an argunent ae to why the fourth motion should have been grented.
In conclusion ne. 1, BLUR explained that his vse of onnuabered textual
Paragrephs sade it difiscult for the hearing officer ene BLNR to acdress his
-2e-
‘**FOR PUBLICATION*#*
Hence Appellants present no new arguments. In answer
to Appellants’ point one, there is substantial evidence
supporting the BLNR’s determination as set forth supra.
Similarly, as to point two, the argunent that “the court)
fail{ed] to ensure that BLNR followed proper legal requirements,
including rule-making” has been addressed supra. Therefore, this
claim does not implicate any error on the part of BLNR.
xu.
For the aforementioned reasons, we hold that the court
correctly ruled that mitigation as provided in the EIS could be
considered in the CDUP application. Also, there is substantial
evidence to support the BLNR’s conclusion that the project will
not cause substantial adverse impact upon the natural resources
of the project area.
Accordingly, the court's May 28, 2002 judgment is
affirmed.
on the briefs: D
ShcA Larenerm
Daniel Morimoto, M.D.,
appellant-appeliant,
Pro se. Reet O reecoeepann
Kats Yamada, appellant~
appellant, pro se.
Edsel M. Yamada, Deputy Frew «. Duets Sr
Attorney General, for
Appellee-Appeliee Board
of Land and Natural
Resources.
29
***FOR PUBLICATION*#*
Rosemary T. Fazio and
Francis P. Hogan
(Ashford & Wriston),
Special Deputy Attorneys
General, and Wayne A.
Matsuura, Deputy Attorney
General, for Appellee~
Appellee State of Hawai'i,
Department of Transportation.
Michael Chun, Assistant
United States Attorney,
for Appellee-Appellee
United States Department
of Transportation.
=30-
|
a2732bf0-90ad-49d8-9031-dcc55c0ae580 | Kubeckova v. City and County of Honolulu | hawaii | Hawaii Supreme Court | Wo. 25641
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
HANA KUBECKOVA,
Petitioner/Plaintiff-Appellant
CITY AND COUNTY OF HONOLULU,
Respondent /Defendant~Appellee
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10,
DOE PARTNERSHIPS 1-10; DOE NON-PROFIT ENTITIES 1-10
‘AND DOE GOVERNMENTAL ENTITIES 1-10,
Defendants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 00-1-1207)
(By: Duffy, J. for the court’)
Petitioner/plaintiff-appellant’s application for writ
of certiorari filed on June 17, 2005 is hereby denied.
DATED: Honolulu, Hawai'i, June 24, 2005.
=
FOR THE COURT: eo QV
Wom Duty rr SEAL ©
Associate sustice ey
Ian L. Mattoch and
Mark ®. Gallagher
for petitioner/
plaintiff-appellant,
on the writ
considered by: toon, C.J., Levinson, Nakayama, Accba, and Duffy, JJ.
nas
|
54dcedaf-16e2-4a61-910c-15cce1264e8f | Ueoka v. Szymanski. J. Acoba, Concurring in Part and Dissenting in Part [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 07/15/2005 [pdf], 108 Haw. 59. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
SS
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
-000-
es
MEYER M. UEOKA, as Special Administrator of
the Estate of RYOICHI OKUNO, Deceased,
Plaintiff /Counterclaim Defendant-Appellee,
MICHAEL J, SZYMANSKI,
Defendant /Counterclaimant-Appellant,
I,
and
TITLE GUARANTY ESCROW SERVICES, INC., and JOKN
Defendants,
and
JOSEPH W. HARTLEY, ITT, Plaintiff-1ntervenor-Appellee,
MEYER M. UEOKA, Special Administrator of
the Estate of Ryoichi Okuno, Deceased,
Defendant /Crossclaimant /Crosaclaim Defendant~Appellee,
and
MICHAEL J. SZYMANSKI,
Defendant /Crossclaimant /Crossclaim Defendant-Appellant.
(No. 25575; CIV. NO. 00-1-0439)
BANK OF HAWAII, SPECIAL ADMINISTRATOR
OF THE ESTATE OF RYOICHT OKUNO, DECEASED,
Plaintiff/Counterclaim Defendant-Appellee,
vs.
MICHAEL J. SZYMANSKI,
Defendant /Counterclaimant-Appellant,
and
*** FOR PUBLICATION ***
TITLE GUARANTY ESCROW SERVICES, INC.; AND JOHN DOES 1-5,
Defendants,
and
JOSEPH W. HARTLEY, III,
Plaintif£-Intervenor-Appellee,
BANK OF HAWAII, SPECIAL ADMINISTRATOR
OF THE ESTATE OF RYOICHI OKUNO, DECEASED,
Defendant /Cross-Claimant/Cross-Claim Defendant~Appellee
MICHAEL J. SZYMANSKI,
Defendant /Cross-Claimant /Cross-Clain Defendant-Appellant.
(NO, 25870; CIV. NO. 00-1-0439)
No. 25575
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO. 0-1-0439)
JUNE 21, 2005
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.;
WITH ACOBA, J., CONCURRING SEPARATELY AND DISSENTING
OPINION OF THE COURT BY DUFFY, J.
This case involves two contracts to sell and purchase
the same real property. The parties to the first contract are
plaintif£/counterclaim defendant-appellee Ryoichi Okuno* and
» okuno was the original plaintiff, but he died during the proceedings,
‘The special adainistrator of Okuno's estate, Meyer M. Usoks, was substituted
ae a party for kono. Later, during the pendency of Szymanski's appeal, Bank
GE Hawaii’ (as spectal administrator of Okino’ s estate) was substituted for
Booka, For purposes of this opinion, we will refer to Okuno/Ueoka/Bank of
Hawaii as “okuno,
** FOR PUBLICATION ***
defendant/counterclaimant-appellant Michael J, Szymanski; the
parties to the second contract are Szymanski and plaintiff
intervenor-appellee Joseph W. Hartley, IIT. Szymanski filed two
separate appeals, which we consolidated. Szymanski’s first
app
1 was docketed as Yeoka v, Szymanski, No. 25575
[hereinafter, first appeal], and his second appeal was dockete
as Bank of Hawaii v. Szymanski, No. 25870 (hereinafter, second
appeal]. Szymanski's first appeal was from the circuit court’s
December 27, 2002 orders denying Szymanski’s motion to stay
proceedings pending arbitration and granting Hartley's motion for
separate trials. Szymanski’s second appeal was from the June 26,
2003 final judgment* in favor of Hartley for specific
performance, in accordance with the contract between Szymanski
and Hartley.
In his first appeal, Szymanski argues that the circuit
court erred by ruling that Szymanski was not entitled to an order
staying proceedings pending arbitration because: (a) he fully _
complied with the requirements of Hawai'i Revised Statutes (HRS)
§ 658A-7 (Supp. 2001); (b) he was not required to fulfill the
requirements of HRS § 658A-9 (Supp. 2001); and (c) the
Intermediate Court of Appeals’ (ICA's) decision in Rainbow
Chevrolet, Inc, v. Asahi Jvuken (USAL, Inc., 78 Hawai'i 107, 890
P.2d 694 (App. 1995), is controlling precedent in guiding our
+ the Honorable Shackley F, Rafetto presided over both mt
3
*** FOR PUBLICATION ***
interpretation of HRS § 658A-7. Szymanski also argues in his
first appeal that the circuit court erred in ruling that Hartley
was entitled to a separate trial because Hartley's claims were
not severable pursuant to HRS § 658A-7(g). In his second appeal,
Szymanski argues that the circuit court erred by: (1) finding
that Hartley’s failure to deposit $50,000 into escrow was not a
deliberate, material breach of contract; and (2) concluding that
Hartley had reasonable grounds for insecurity about Szymanski’s
ability to perform his contractual obligations, which allowed
Hartley to suspend his performance by paying the $50,000 deposit
later than the contract specified.
When examining the two appeals together, Szymanski
essentially has two arguments: (1) Szymanski should have been
allowed to stay the circuit court proceedings pending arbitration
because he complied with the necessary statutory requirements for
arbitration; and (2) Hartley was not entitled to the remedy of
specific performance because hé deliberately and materially
breached the contract between Szymanski and Hartley.
Based on the following, the circuit court’s (1)
December 27, 2002 orders denying Szymanski’s motion to stay
proceedings pending arbitration and granting Hartley’s motion for
separate trials; and (2) June 26, 2003 final judgment granting
Hartley specific performance are affirmed.
*** FOR PUBLICATION ***
BACKGROUND
On June 8, 1999, Okuno agreed to sell and Szymanski
agreed to purchase (hereinafter, Okuno-Szymanski contract) five
separate parcels of land, totaling approximately 53.94 acres of
land located in Kula, Maui [hereinafter, the property] for
$1, 650,000.00. A material term of the contract was that Okuno
would install four new County of Maui water meters on the
The
property and connect them to the County water syster
transaction did not close, with each party blaming the other for
the failure.
on March 22, 2000, Okuno attempted to cancel escrow and
Anstructed Title Guaranty Escrow Services (Title Guaranty) to
prepare a Notice of Escrow Cancellation Agreement. Szymanski
refused to sign the agreement. Szymanski requested mediation
(pursuant to the terms of the contract), but Okuno refused to
mediate in the manner set forth in the contract. On August 23,
2000, Okuno filed a complaint in circuit court against Szymanski
and Title Guaranty alleging that Szymanski was in default because
he failed to make two payments ($403,000.00 and $1,237,000.00).
Okuno requested that the circuit court rescind the Okuno-
Szymanski contract and award Okuno $10,000.00 in damages for
Szymanski’s breach of contract, attorneys’ fees, and costs. on
November 21, 2000, Szymanski filed a counterclaim against Okuno,
alleging that Okuno had breached the Okuno-Szymanski contract and
5
*** FOR PUBLICATION ***
requesting specific performance of the contract, monetary damages
for Okuno’s breach, and attorneys’ fees and costs. On
October 14, 2000, Okuno died and Meyer M. Ueoka (special
substituted for Okuno as a
administrator of Okuno’s Estate)
party to the proceedings. On July 3, 2001, Szymanski filed a
motion to stay proceedings pending mediation. Again, Okuno
refused to mediate in the manner specified in the contract.
on August @, 2002, while the Okuno-Szymanski lawsuit
was pending, Szymanski entered into a contract to sell the same
property to Hartley (hereinafter, Szynanski-Hartley contract] for
$1,800,000.00. When the Szymanski-Hartley contract was made,
Szymanski and Hartley intended that the Okuno-Szymanski
transaction and the Szymanski-Hartley transaction would “close”
concurrently in a “back-to-back” closing. Szymanski and Hartley
intended that the following would occur in the “back-to-back”
closing: (1) Okuno would convey the property to Szymanskiz
(2) Szymanski would convey the property to Hartley; (3) Hartley
would pay Szymanski the purchase price of $1,800,000.00
(4) Szymanski would pay Okuno $1,650,000.00 from the funds
received fron Hartley; and (5) Szymanski would keep $150,000.00.
In addition to providing the four water meters previously
mentioned, the Szymanski-Hartley contract also required Szymanski
to provide a fifth tax map key number.
*** FOR PUBLICATION
‘egarding payment of the purchase price of
$1,800,000.00, the Szymanski-Hartley contract provided that the
purchase price was to be paid in the following increments: (1) a
$10,000.00 initial deposit; (2) a $50,000.00 additional payment
to be deposited into escrow on or before August 14, 2002; and (3)
the balance of the purchase price ($1,740,000.00) to be deposited
into escrow before closing. Szymanski and Hartley agreed to a
closing date of August 21, 2002, with the added provision that
either party could extend the closing date for seven days. The
closing date was subsequently extended to August 26, 2002.
Hartley made the initial deposit of $10,000.00 on August 5, 2002
into the agreed-upon escrow account (with Szymanski as a party)
at Title Guaranty’s Wailuku, Maui office. Hartley did not make
the additional $50,000.00 payment into the designated escrow
account on or before August 14, 2002, allegedly because of
Okuno’s pending claim for judicial cancellation of the Okuno-
Szymanski contract which gave Hartley grounds for insecurity as
to Szymanski’s ability to convey the property under the
Szymanski-Hartley contract. Rather than make the $50,000.00
Payment to the designated account, Hartley deposited
$1,790,000.00 into an independent escrow account (to which
Szymanski was not a party) at the Kthei, Maui office of Title
Guaranty, to show that he (Hartley) could complete his contract
purchase.
*** FOR PUBLICATION ***
In August 2002, Hartley discovered that there were only
three water meters on the property, not four, and notified
Szymanski of this discrepancy; Szymanski then sent Ueoka repeated
requests for evidence that there were four water meters on the
property. Ueoka refused to acknowledge that there was an issue
with the water meters and insisted that he was in full compliance
with the Okuno-Szymanski contract. On August 14, 2002, the
parties notified the circuit court of the problem with the water
meters. Despite Hartley’s willingness to proceed with the
Szymanski-Hartley transaction even though only three water meters
were on the property, Okuno and Szymanski could not resolve their
conflicting claims for judicial cancellation and specific
performance of their contract and claims for damages, attorneys’
fees, and costs.
In early September 2002, the circuit court set the
Okuno-Szymanski case for trial beginning January 21, 2003. On
Septenber 13, 2002, Hartley applied to intervene as 2 party under
Rule 24(a) of the Hawai'i Rules of Civil Procedure (HRCP),*
> nce Rule 24, entitled “Intervention,” providk
(a) Intervention of Right. Upon timely application
anyone shall be permitted to intervene in an action: (1)
then a statute confers an unconditional right to intervene:
Se'(2) when the applicant claims an interest relating to the
Property or transaction which ie the subject of the action
Bhd’ the applicant 1a 20 situated that the disposition of the
action may a3 a practical aster impair or impede the
applicant's ability to protect that. interest, unless the
Spelicant’s interest ie adequately represented by existing
parties,
() Eermissive Intervention. Upon timely application
8
*** FOR PUBLICATION ***
alleging that he had an independent protected interest in the
property as a subpurchaser under the Szymanski-Hartley contract.
Neither Szymanski, Okuno, or Title Guaranty objected to Hartley’
application to intervene, although Szymanski did give notice that
he intended to file a motion to stay proceedings if Hartley
intervened, based upon the provisions in his contract with
Hartley which required mediation and arbitration of all claims
arising under the contract.
Following the circuit court’s granting of his motion to
Intervene, Hatley filed 2 complaint against Okuno and Szymanski
seeking specific performance (of both the Okuno-Szymanski
contract and the Szymanski-Hartley contract), damages, attorneys’
fees, and costs. Hartley also filed a motion for separate trials
‘anyone may be permitted to intervene in an action: (1) when
a'deatute confers a conditional right to intervenes oF (2)
‘then an applicant’ s claim or defense and the main action
fave @ question of law of fact in common. When a party to an
ction Felies for ground of claim or defense upon any
statute, ordinance or executive order administered by
Officer, agency or governmental organization of the State or
‘2 county, or upon any regulation, order, requirenent or
Agreement issued of Made pursuant to the statute, ordinance
of executive order, the officer, agency or governmental
Srganization upon timely application nay be permitted to
Intervene in the action. In exercising its discretion the
Court shall consider whether the intervention will unduly
Gelay or prejudice the adjudication of the rights of the
original parties.
(a) Procedure. A person desiring to intervene shall
serve a motion to intervene upon the parties as provided in
Rule S. The motion shail state the grounds therefor and
shell be accompanied by a pleading setting forth the claim
or for which intervention is sought. ‘The sane
Procedure shall be followed when a statute gives a right to
*** FOR PUBLICATION *
fon the Okuno-Szymanski contract and the Szymanski-Hartley
contract, based upon HRCP Rule 42(b).‘ Szymanski responded by
filing a motion to stay all court proceedings pending arbitration
based upon the arbitration provision in the Szymanski-Hartley
contract and HRS § 658-5 (1993)'. The circuit court granted
Hartley's application, and on October 17, 2002, Hartley filed a
complaint requesting specific performance of their contract by
both Okuno and Szymanski, together with a claim against Szymanski
for damages, attorneys’ fees, and costs.
Hartley’s motion for separate trials and Szymanski’ s
motion for a stay of proceedings were heard on November 20, 2002.
« ugce Rule 42, entitled “Consolidation; Separate Trials,” provides in
pertinent part
(©) Separate Trials. The court, in furtherance of
Convenience OF £0 avoid prejudice, or when separate trials
will be conducive to expedition and economy, may Order a
Separate trial of any claim, cross-claim, counterclaim, or
Enira-party claim, or of any separate issue or of any number
of clains, crose-clains, counterclaims, third-party claims,
Sr issues, sluaye preserving inviolate the right of trial by
Sory as given by the Constitution or a statute of the State
ar the United States.
5, entitled “No trial Af {geue referable to arbitration,”
.ction of proceading is brought upon any issue
greenent in writing, the
Eizcuit court, upon being satisfied that the issue involved
Sn the action ‘or proceeding is referable to arbitration
linder such an agreement in writing, shall stay the trial of
the action oF proceeding until the arbitration has been had
[naccordance with the terms of the agresnent, provided the
applicant for the stay is not in default in proceeding with
the arbitration.
As discussed infra, this statute has been repealed.
10
*** FOR PUBLICATION ***
In response to the court’s inquiry, counsel for Szymanski
expressly stated that Szymanski had not made a demand for
arbitration. Szymanski’s counsel further explained that
Szymanski did not make this demand because Hartley defaulted on
the arbitration provisions of the Szymanski-Hartley contract when
he intervened in the Szymanski-Okuno trial instead of initiating
arbitration, Hartley's counsel countered that under the new
arbitration act, Szymanski was required to make a demand for
arbitration before requesting that the court compel arbitration.
Following the representation that a demand for arbitration had
not been made, the court denied the motion for stay of
proceedings, but indicated that it would reconsider the issue “if
someone files for arbitration.” Neither Szymanski nor Hartley
ever made a demand for arbitration at any time. The circuit
court also granted Hartley’s motion for separate trials.
on January 2, 2003, Szymanski appealed the circuit
court's order granting separate trials, and the order denying
Szymanski’s motion to stay proceedings; this appeal was docketed
as Usoka v. Szymanski, No. 25575. The circuit court retained
jurisdiction over the merits of the case and proceeded with the
separate Okuno-Szymanski and Szymanski-Hartley trials.
‘The Okuno-Szymanski trial was held on January 21, 22,
and 23, 2003. On March 31, 2003, the circuit court entered
findings of fact and conclusions of law wherein the circuit
u
** FOR PUBLICATION ***
SSS
court: (1) dismissed Okuno’s claim for a judgment that cancelled
the Okuno-Szymanski contract; (2) directed Okuno to obtain a
fourth water meter for the property? and (3) enforced the Okuno-
Szymanski contract by a specific performance order against Okuno.
The circuit court also ruled that Okuno had breached the Okuno-
Szymanski contract by, inter alla, failing to provide four water
meters and failing to provide an adequate warranty deed. The
circuit court also found that Szymanski had not breached the
contract because he was a “ready, willing, and able” buyer.
hile the circuit court found that Szymanski did not have the
funds to pay Okuno for the property, and did not have a binding
commitment from a lender to obtain the necessary funds, Szymanski
was nevertheless a “ready, willing, and able” buyer because the
funds Hartley deposited into escrow were available to Szymanski
in the event of concurrent closings. ‘The circuit court also
awarded Szymanski attorneys’ fees and costs in the amount of
$124,841.66.
‘The Szymanski-Hartley trial was held on March 24 and 25
and April 2 and 11, 2003. On May 7, 2003, the circuit court
entered findings of fact and conclusions of law wherein the court
found that:
(1) Hartley was “ready, willing, and able” to perform on
the extended closing date under the Szymanski-Hartley
contract but Szymanski was unable to perform because he
12
*** FOR PUBLICATION ***
(2
a
did not have title to the property and had not obtained
the fifth tax map key nunber for the property:
Hartley's failure to transfer $50,000.00 as an
additional deposit inte escrow on August 14, 2002 was a
breach of the Szymanski-Hartley contract, but it was
not a material breach of the contract under the
circumstances, which included: (a) Hartley had
reasonable grounds for insecurity in Szymanski’s
ability to perform under the contract, as Okuno had a
pending claim for judicial cancellation of the Okuno~
Szymanski contract; (b) Hartley made the $50,000.00
additional deposit on January 23, 2003, one day after
the circuit court orally dismissed Okuno’s claim for
cancellation of the contract during the Okuno-Szymanski.
trial; and (c) Szymanski suffered no injury as a result
of the delay, as Syzmanski was not entitled to use the
deposit before the closing of the Szymanski-Hartley
transaction (which was delayed by Szymanski’s inability
to perform); and
in the Okuno-Szymanski trial, Szymanski relied upon the
funds placed in escrow by Hartley under the Szymanski-
Hartley contract to prove that Szymanski was a “ready,
willing and able” buyer of the property under the
Okuno-Szymanski contract. Having relied upon these
3
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funds and the Szymanski-Hartiey contract in order to
obtain specific performance against Okuno, Szymanski is
judicially estopped from now taking the position that
the Szymanski-Hartley contract is unenforceable.
The circuit court concluded that the property at issue
was unique, that Hartley had no adequate remedy of law, and that
Hartley was entitled to a specific performance order directing
Szymanski to convey the property to Hartley in accordance with
the terms of the contract. The circuit court also avarded
Hartley attorneys’ fees and costs in the amount of $25,560.16
against Szymanski.
on June 5, 2003, Szymanski filed a notice of appeal
from the circuit court’s May 7, 2003 findings of fact and
conclusions of lax, the May 7, 2003 order granting Hartley
specific performance, and the May 28, 2003 order awarding fees
and costs. On June 26, 2003, the circuit court entered a final
judgment resolving all of the parties’ claims. Essentially, the
circuit court ruled that Szymanski was entitled to: (1) specific
performance of the Okuno-Szynanski contract; and (2) attorneys’
fees and costs from Okuno totaling $124,841.66. Tt also ruled
that Hartley was entitled to: (1) Okuno’s specific performance
of the Okuno-Szymanski contract; (2) Szymanski’s specific
performance of the Szymanski-Hartley contract; and (3) $25,560.16
in attorneys’ fees and costs from Szymanski. Szymanski filed 2
4
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timely appeal from the circuit court’s final judgment:’ this
appeal was docketed as Bank of Hawaii v. Szymanski, No. 25870.
We subsequently consolidated Szymanski’s first and second
appeals.
TI. STANDARDS OF REVIEW
A petition to stay proceedings pending arbitration is
reviewed de nove because “the existence of a valid and
enforceable agreement to arbitrate is a question of law.” Luke
YeGentry, 105 Hawai'i 241, 246, 96 P.3d 261, 266 (2004). {T]he
trial court’s decision is reviewed ‘using the same standard
employed by the trial court and based upon the same evidentiary
materials as were before [it] in determination of the motion.’”
Id. (quoting Koolau Radiology, Inc. v. Queen's Med. Ctr., 73 Haw.
433, 439-40, 834 P.2d 1294, 1298 (1992) (alterations in
original).
B. Statutory Interpretation
Questions of statutory interpretation are questions of law
fo\be reviewed da nova under the right/wong standard. Our
statutory construction is guided by the following well,
‘established principles:
© seymanski did not actually file an appeal from the cireuit court's
June 26, 2003 final judgaent. The only notice of appeal he flied was on June
5, 2003; however, pursuant to HRAP rule 4(a)(2), his premature appeal is
Considered filed’ immediately after the entry of the June 26, 2003 final
Judgment. HRAP Rule 4(a) (2) ("In any case in which a notice of appeal has
been filed prematurely, such notice shall be considered as filed immediately
after the tine the judgeent becones finel for the purpose of appeal-")-
as
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(olur foremost obligation is to ascertain
and give eftact to the intention of the
{Ogislature, which is to be obtained
primarily from the language contained in
fhe statute itself. And we must read
Statutory language in the context of the
antire statute and construe it in 8 manner
Sonsistent with its purpose.
When there is doubt, doubleness of meaning, o
indistinctiveness or uncertainty of an expression used
tute, an ambiguity exis!
wnstruing an ambiguous statute, “[tJhe meaning
mbiguous words nay be sought by examining the
ee ith which the ambiguous words, phrases, and
fences may be compared, in order to ascertain their
fite’meaning.“ "Moreover, the courts may resort. to
trinsic aide in determining legislative intent. One
Svenue is the use of legislative history as an
Interpretive tool. This court say also consider
STtihe reason and spirit of the law, and the cause
hich snduced the legislature to enact it... £0
Giscover its true meaning.”
Guth_y. Freeland, 96 Hawai'i 147, 149-50, 26 P.34 982,
Sei-g5 (2001) (citations omitted) (ellipsis points in
original).
United Public Workers, AFSCME, Local 646, AFL-CIO v, Hanneman,
106 Hawai" 359, 363, 108 P.3d 236, 240 (2005) (ellipses in
original).
C. Specific Performance
wthe relief granted by a court [in] equity is
discretionary and will not be overturned on review unless the
[circuit] court abused its discretion... .” AIG Hawaii Ins.
Co., Inc. v, Bateman, 82 Hawai'i 453, 457, 923 P.2d 395, 399
(1996) (alterations in original). “An abuse of discretion occurs
when the trial court has clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.” Id, (citations
16
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omitted). Save Sunset Beach Coalition v, City and County of
Honolulu, 102 Hawai" 465, 484, 78 P.3d 1, 20 (2003).
Clearly Erroneous,
In this jurisdiction, @ trial court's Fore
tothe clearly erroneous standard of review.
15 naw. 307, 328, 861 P.24 11, 22 (1993) (citations
omitted). “An FOF is clearly erroneous when, despite
evidence to support the finding, the appellate court i.
eh the definite and firm conviction that a mstake hi
committed.” Ig. (citations and internal quotation marke
omitted); gee alse State v, Batson, 73 Haw. 236, 246, 631
Pi2a 824, $30, reconsideration denied, 73 Haw. 625, 634 7.24
1515 (1992)...
Chun v, Board of Trustees of Emplovees’ Ret, Svs, of State of
Haxai‘i, 106 Hawai'i 416, 430, 106 P.3d 339, 353 (2005) (ellipses
fe subject
oft
in original).
TIT. piscusszoN
A. First Appeal
In his first appeal (Ueoka v. Szymanski, No. 25575),
Szymanski argues that the circuit court erred in ruling that
Szymanski was not entitled to an order staying proceedings
pending arbitration because: (1) he fully complied with the
requirements of HRS § 658A-7;" (2) he was not required to fulfill
» RS § 6S0A-7, entitied “Notion to compel or stay arbitration,”
provides:
(2) On motion of person showing an agreement to
arbitrate and alleging another person's refusal to arbitrate
pursuant to the agreenentt
(0) Tf the refusing party does not appear or does
ot oppose the motion, the court shall order the
parties to arbitrate; and
(2) Tr the refusing party opposes the motion, the
court shall proceed summarily to decide the
issue and order the parties to arbitrate unl
(continued.
vv
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the requirements of HRS § 658A-9;* and (3) the ICA’s decision in
Rainbow Chevrolet, 78 Hawai'i 107, 890 P.2d 694, is controlling
precedent in this court's interpretation of HRS § 658A-7.
Szymanski also argue
that the circuit court erred in ruling that
*(. seontinued)
st finds that there is no enforceable agreement,
to arbitrate.
(®) on motion of 2 person alleging that an arbitration
proceeding has been initiated or threatened but that there
Teno agreement to arbitrate, the court shall proceed
Sumarily to decide the issue. If the court finds that there
{evan enforceable agreenent to arbitrate, it shall order the
parties to arbitrate:
‘ic) Tf the court finds that there is no enforceable
agreement, it shall not, pursuant to subsection (a) or (b),
order the parties to arbitrate.
(a) fhe court shall not refuse to order arbitration
because the claim subject to arsitration lacks merit or
‘Grounds for the claim have not been established.
fe} it's proceeding involving a claim referable to
arbitration under an alleged agreement to arbitrate is
pending in coure, 2 motion under this section shall be made
Tn'that court. Otherwise a notion under this section shall
bbe nade in any court as provided in section 656A-27-
{g)"1f a party makes s motion to the court to order
arbitration, the court on just terms shall stay any judicial
Proceeding that involves 2 claim alleged to be subject to
fhe arbitration until the court renders a final decision
under thie section.
ig) Tf the court orders arbitration, the court on just
tems shall stay any Judicial procesding that involves a
Claim subject to the arbitration. If a claim subject to the
Grbitration is severable, the court may limit the stay to
thee claim.
“URS § 658A-9, entitled “Initiation of arbitration,” provides:
(a) A person initiates an arbitration proceeding by
‘giving notice in a record to the other parties to the
Sgreoment to arbitrate in the agreed manner between the
parties or, in the absence of agreesent, by certified or
Fegistered mail, ‘return receipt requested and obtained, oF
by service as authorized for the commencement of a civil
action. The notice shall describe the nature of the
Controversy and the remedy sought.
(b) Gnless a person objects for lack or insufficiency
of notice under section 656A-15(c) before the beginning of
fhe arbitration hearing, By appearing st the hearing the
person waiver any objection to lack of or insufficiency of
fotice.
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Hartley was entitled to a separate trial because Hartley’s clains
Were not severable pursuant to HRS § 658A-7(g).
Hartley, on the other hand, disputes each of these
arguments and further argues that we do not have jurisdiction
over Szymanski’s first appeal because Szymanski did not stay
execution of the June 26, 2003 final judgment pending appeal and
instead, complied with the circuit court’s specific performance
ruling, thus rendering the issues moot. Hartley further contends
that the separate trial order is an interlocutory order that is
not appealable. Assuming, arauendo, that Szymanski’s arguments
are not moot, Szymanski’s arguments are meritless. We will
address the merits of this case as follows: (1) the
applicability of HRS § 658A-9 (entitled “Initiation of
arbitration”); (2) the relationship between this statute and HRS
§ 658A-7 (entitled "Motion to compel or stay arbitration”); (3)
the continuing viability of Rainbow Chevrolet upon adoption of
HRS chapter 658A (Uniform Arbitration Act); (4) and the
applicability of the collateral order doctrine to invoke
appellate jurisdiction over an order granting a separate trial
under Rule 42 of the HRCP.*
+ mie
Anpliciely by
Je was not directly raised by Szymanski but was raised
‘ley in his Jurisdictional challenge:
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ERS 9 (initiate
In 2001, the legislature enacted new arbitration
statutes codified as HRS chapter 658A (Uniform Arbitration Act),
replacing HRS chapter 658. HRS chapter 638A is applicable to
agreenents to arbitrate made after July 1, 2002; the agreement to
arbitrate at issue in this case was made on August 8, 2002, and
thus HRS chapter 658A is applicable.
HRS § 658A-9 (“Initiation of arbitration”) is a new
provision in the Uniform Arbitration Act which sets forth formal
requirements for initiation of an arbitration proceeding. It
provides in relevant part:
(a) A person initiates an arbitration proceeding by
‘giving notice in a record to the other parties to the
Sgteorent to arbitrate in the agreed manner Between the
parties or, in the absence of agreement, by certified or
Pogistered mali, ‘return receipt requested and obtained, or
by service as authorized for the commencement of a civil
adcions The notice shall describe the nature of the
Controversy and the renedy sought.
HRS § 658A-9 thus requires that a person seeking to initiate an
arbitration proceeding give notice of-such initiation in writing,
describing the nature of the controversy and the remedy sought,
to the other parties to the agreement to arbitrate in one of
three ways: (1) in the manner specified in the agreement, or in
the absence of an agreed-upon manner of notice, (2) by certified
or registered mail, return receipt requested and obtained, or
(3) by service as authorized for the conmencenent of a civil
action.
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In the pre
nt case, Szymanski first argues that HRS
$ 658A-9 does not apply to him: he contends that HRS § 658A-9
applies only to a person asserting a claim, that he is not
asserting any claim against Hartley, and that HRS § 6S8A-9
therefore does not apply to him. We disagree. HRS § 658A-9 is
not limited to persons asserting a claim, and indeed the word
“claim” does not appear in the statute. Rather, the plain
language of the statute sets forth the requirements for
Initiating an arbitration proceeding by a person who is a party
to an arbitration agreement. If Szymanski wanted Hartley's claim
to be resolved in arbitration, it was incumbent upon Szymanski to
satisfy the requirements of HRS § 6562-9 for the initiation of
arbitration. Szymanski did not do so.
Szymanski alternatively argues that, if HRS § 658A-9 is
applicable to hin, he satisfied its requirements by demanding
arbitration in filing two circuit court documents: (1) his
statement of no position on Hartley's application to intervene,
and (2) his motion to stay proceedings pending arbitration.
Again, we disagree with Szymanski. While those pleadings may
demonstrate Szymanski’s intent to invoke arbitration, they do not
satisfy the statutory requirenents of HRS § 658A-9 for the
initiation of arbitration. Moreover, after these pleadings were
filed, and in oral argument on Szymanski’s motion to stay
proceedings pending arbitration, Szymanski’s counsel (in response
an
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to the court’s specific inquiry) expressly stated that Szymanski
had not made a demand for arbitration. In addition, after the
circuit court denied Szymanski’'s motion for stay of proceedings
pending arbitration, the court indicated that it would reconsider
the issue “if someone files for arbitration.” Despite the
cizcuit court’s stated willingness to reconsider the stay issue
Af a demand for arbitration was filed, neither Szymanski nor
Hartley ever made a demand for arbitration at any time.
According to the dissent’s position, once a party files
a lawsuit, that party should not have to initiate arbitration in
compliance with HRS § 658A-9 as a prerequisite to filing a motion
to compel arbitration. We believe, however, that the dissent’s
position contradicts the legislature’s clear intentions. “This
court has long recognized the strong public policy supporting
Hawai'i’s arbitration statutes as codified in HRS Chapter 658.
We have stated that ‘[t]he proclaimed public policy . . . is to
encourage arbitration as a means of settling differences and
thereby avoiding litigation.’” Lee v. Heftel, 81 Hawai’
911 P.2d 721, 724 (1996) (Emphasis added.) (Quoting Bateman
Constr, Inc v. Haitsuka Bros., Ltd., 77 Hawai'i 481, 484, 889
P.2d 58, 61 (1995). Furthermore, this court has advocated the
L 4,
use of arbitration in an effort to reduce the nunber of cases
that proceed to litigation. See id, at 4, 911 P.2d at 724 (“IWe
emphasize the importance of utilizing alternative methods of
22
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dispute resolution in an effort to reduce the growing number of
cases that crowd our courts each year.”), Allowing a party to
compel arbitration after filing a lawsuit (without filing a
notice initiating arbitration) does nothing to avoid litigation
or reduce the number of cases crowding our courts. As such, we
believe that requiring a party to initiate arbitration before
filing a motion to compel arbitration best supports the policy
reasons behind encouraging arbitration.
2. HRS § 658A-7 (Motion to Compel Or Stay Arbitration)
HRS § 658A-7(a) provides as follows:
(2) on motion of 2 person showing
arbitrate and
rosing party dose not sph
the motion, the coure shall order the
parties to arbitrate; and
(2) TE the refusing
it" tings ‘chat
to arbierate.
Szymanski argues that under HRS § 658A-7(a), the
circuit court was obligated to order arbitration because he
showed that there was an agreement to arbitrate and that Hartley
refused to arbitrate. We disagree. HRS § 658A-7 must be read in
pakimateria with HRS § 658A-9, which, as discussed supra,
requires that the person seeking to initiate an arbitration
Proceeding satisfy certain formal requirements. In the absence
of Szymanski’s satisfaction of those requirements for initiation
23
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of the arbitration proceeding, Hartley cannot be found to have
refused to arbitrate.
3. Viability Of Rainbow Chevrolet After Adoption Of
HRS Chapter 658A
Szymanski argues that Rainbow Chevxolet is controlling
precedent and that, if the circuit court finds that there is any
Assue referable to arbitration in a suit, the circuit court must
stay trial of all the issues in the suit until the arbitration
has been held in accordance with the terms of the agreement. We
disagree. tn Rainbow Chevrolet, the ICA correctly concluded
that, pursuant to the clear and unambiguous language of then-
existing HRS § 658-5, the trial court was required to stay
proceedings pending arbitration if there was any issue referable
to arbitration under a written agreement. Rainbow Chevrolet, 78
Hawai‘ at 113, 890 P.2d at 700. The Rainbow chevrolet holding
was thus based on the plain language of HRS § 658-5, which was
repealed upon the adoption of HRS chapter 658A, There is no
statute comparable to HRS § 658-5 in HRS chapter 658A; indeed,
HRS § 658A-7 provides that if a claim subject to the arbitration
is severable, the court may limit the stay to that claim.
Rainbow Chevrolet is thus no longer applicable to arbitration
agreements to which HRS chapter 658A is applicable.
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4. Order Granting Separate Trials
We will first discuss Hartley’s contention that we do
not have jurisdiction as the separate trial order is an
interlocutory order that is not appealable. We disagree. We
have jurisdiction over this order; Szymanski’s first appeal was
consolidated with his second appeal pursuant to HRCP Rule 42 and
the second appeal included a final judgment. An appeal from a
final judgment “brings up for review all interlocutory orders not
appealable directly as of right which deal with issues in the
case.” Pioneer Mill Co., Ltd. v. Ward, 34 Haw. 686, 694 (1938).
Because the cases were consolidated, we have jurisdiction to
review Szymanski’s appeal from the order granting separate
trials.”
© Generally, this court would not have Jurisdiction over an order
granting separate trials ae it is not 2 final order ending the proceeding
See Eauilian Northwest. Inc. v, Central Pacific Boiler é Piping, Ltd, 6°
58, 370, 114 F.2d 936, 937 [1986] ("Final order” means an order ending th
Proceedings, leaving néthing further to be accomplished. Consequently, an
Order is not final if the rights of a party involved renain undetermined or if
PIs natier ie zetasoed for curther action.” (Quoting Gaalan e."faalay 6, Ha
513, 520, 591 P.2d 621, 626 (1979).)) Consi
an interlocutory order’ so effectively “final” that we exercised appellate
Jurisdiction under the “collateral order” doctrine over an appeal that 2
Aetther a final Judgnent nor has been allowed by the circuit court under HRS
§ 641-1(b). However, the order granting separate trials dose not satisty the
fest for exercising the collateral order doctrine set forth in
‘Abrams ta
Cadee, Schutte, Fleaing @ Uright, 68 Hswal't 319,322, 966 P.2d €31, 63
(1998)?
In order to fall within the narrow ambit of the collateral
order doctrine, the “order must, [1) conclusively determine
the dispute question, (2) resolve an important issue
Completely separate from the merits of the action, and (3)
be effectively unreviewable on appeal fron a final
aude i aeaate
(Quoting gianace ¥. Kasadate, 77 Hawai'i 157, 161, 683 P.2d 78, 82 (1994)
(quoting Coopers «Lybrand v. Livesay, 437 U.S. 463, 468 (1976)).) (Brackets
inoriginal.) The second Fequirenent is not satisfied as the order granting
(continued. =.)
2s
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ee
‘he trial court’s decision to hold separate trials “is
a matter within the sound discretion of the trial judge, and
unless prejudice is shown, will not be reversed on appeal.”
Masaki v, Genera) Motors Corp., 71 Haw. 1, 5 n.1, 780 P.2d S66,
570-n.1 (1989). Szymanski claims that he was prejudiced by the
separate trials because (1) Szymanski’s clains for danages
against Okuno could not be resolved until Hartley’s potential
claims against Szymanski were resolved; and (2) Hartley had two
opportunities to establish his claims against Szymanski,
ostensibly by participating, including testifying, in both
trials. Szymanski’s clains are without merit. With respect to
having to wait to resolve his damages claim against Okuno,
Szymanski has not shown that he was prejudiced by the six week
delay between the filing of the Findings of Fact and Conclusions
of Law in the Okuno-Szymanski trial on March 31, 2003, and the
order awarding Szymanski attorneys’ fees and costs on May 12,
2003 following completion of the Szymanski-Hartley trial. -With
respect to Szymanski’s claim that Hartley had two opportunities
to establish his claims against Szymanski by participating in
both trials, Szymanski has not shown that he was prejudiced. To
the contrary, the record shows, and the circuit court found, that
Szymanski relied upon the Szymanski-Hartley contract to show that
continued)
fais would not appear to ri
Separete from the merits of the action.
an important issue completely
26
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he was a ready, willing, and able buyer in the Okuno-Szymanski
transaction, Stated simply, Szymanski would not have prevailed
against Okuno in the absence of the Szymanski-Hartley contract
established substantially by Hartley's testimony in the firs
trial.
In sum, Szymanski has not shown that he was prejudiced
by the order granting separate trials, and the circuit court did
not abuse its discretion in granting separate trials.
B. Second Appeal
In his second appeal (Bank of Hawaii v. Szvmanski,
No. 25870), Szymanski argues that the circuit court erred by:
(1) finding that Hartley’s failure to deposit $50,000.00 into
escrow was not a deliberate and material breach of. the Szymanski-
Hartley contract; and (2) concluding that Hartley had reasonable
grounds for insecurity about Szymanski’s ability to perform his
contractual obligations, which allowed Hartley to suspend his
performance by paying the $50,000.00 deposit later than the
contract specified. In sum, Szymanski argues that Hartley was
not entitled to specific performance of the Szymanski-Hartley
contract because the contract was unenforceable due to Hartley's
deliberate and material breach of the contract.
‘The doctrine of judicial estoppel, however, bars
Szymanski from arguing that the Szymanski-Hartley contract is
unenforceable. We have held that:
27
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tplursuant to the doctrine of judicial estoppel,
[a] party will not be permitted to maintain
Inconsistent positions or to take a position in
regard to a matter which is directly contrary
fo or inconsistent with, one previously assuned
by'him, at Least where he had, or was chargeable
with, full knowledge of the facts, and ancther
Mill be. prejudiced by his action.
(pose v, Ck Contractors, Ltd, ¢ Han. App. 210, 218, 664
pend 745,751 (19631). (quoting 28 Ax.Jor.2d Estoppel’ and
Haiver $68, at 694-95 (1966) (indentation omitted) )-
es... of positive rules of
procedure bases on manifest justice and, to a greater or
fees{er] degree, on considerations of the orderliness,
regularity, and expedition of 2itigation.’" Id. at 219, 664
Pi2d at Tai (quoting Trask ¥. Tam Soe, 42 Haw. "324, 333
{i9se)). Thig doctrine prevents parties from “playing ‘fast
dnd loose’ with the court or blowing "hot and cold’ during
the course of litigation.” id. (citing
Sbunty. af few. 312, 390.2476 (1960); gee giao Yuen ze
140 Baws 213-1953)? elben
WORD Sisco eer Feta lie? cath cir.1962); Edwards wa
Heian Lite ing co. 650° #24 595 (6th Cir-1962)).
Roxas v. Marcos, 89 Hawai'i 91, 124, 969 P.2d 1209, 1242 (1998)
(some alterations in original and some added). In the Okuno~
Szymanski trial, wherein he sought specific performance of his
contract with Okuno, the circuit court found, and the record
supports, that Szymanski relied upon the Szymanski-Hartley
contract in showing that he was a ready, willing, and able buyer.
Indeed, the cirewit court found that, while Szymanski did not
otherwise have the funds to pay Okuno for the property and did
not have a binding commitment froma lender to obtain the
necessary funds, Szymanski was a ready, willing, and able buyer
because the funds Hartley deposited into escrow were available to
Szymanski in the event of the intended concurrent closings.
Having found that Szymanski relied upon the Szymanski-Hartley
contract in order to obtain specific performance against Okuno,
28
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the circuit court concluded that Szymanski is judicially estopped
from now taking the position that the Szymanski-Hartley contract
is unenforceable. We agree with the circuit court's analysis and
we hold that the circuit court did not clearly err in finding
that Szymanski relied upon Hartley’s escrowed funds," and did
not abuse its discretion in awarding specific performance in
favor of Hartley, and awarding attorneys’ fees and costs in favor
of Hartley and against Szymanski.
IV. CONCLUSION
Based on the foregoing, the circuit court’s
(1) December 27, 2002 orders denying Szymanski’s motion to stay
proceedings pending arbitration and granting Hartley’s motion for
" phe circuit court found that: (1) Szymanski did not have the funds
‘to pay the Okuno Estate or a binding commitment from a lender to Lend
Stymanski the remaining funds; and (2) Saymanski is a “ready, willing, and
able” buyer under the Okuno-Szymanski contract because of the avallaDility of
Hartley's escrowed funds
‘At trial, Hartley testified thet his understanding was that
Szymanski needed Hartley's fonds to “close the deal” with Okuno and that.
without Hartley's funds Stymanski was in danger of breaching his contract with
he had four and a half miiiion dol
‘and he was confident that he
ry to purchase the property which was the
Subject of the Szymanski-Nartley contract. Szysanski, however, did aot
testify that he had commitments fron any lenders, On’ cross-exanination,
Stymanski admitted that he intended that the four and a half million dollars
be applied to another land transaction, not the transaction with Okuno, and
that he dis not inform the circuit court (in the first trial) that he had this
money (the four and a half nillion dollars) available to pay Okuno’s estate.
On cross~examination, Saymangki further stated that “(a)t that time in August
T'was planning on using Hartley's funds"
The circuit court's findings of fact that Szymanski did not have
the funds to complete the Okuno transaction or a binding committment from 2
lender, and was relying upon Hartley's escrowed funds to complete the Okuno
transaction, "are this not clearly erroneous.
2 in
29
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separate trials; and (2) June 26, 2003 final judgment granting
Hartley specific performance are affirmed.
Ronald I. Heller and .
Laura Anderson (of Birr Hlanee—
Torkildson, Katz, Fonseca,
Moore # Hetherington)
‘in No. 25875. and Pema Oran ane~
Snes tT. Paul,
Suay A. Tanaka,
and colin A, Yost (of Paul, Vm Asti
Johnson, Park & Niles) in
No. 25870 for defendant/
counterelaimant-appellant
and defendant/crossclaimant/
crossclaim defendant-appellant
Michael J. Szymanski
Willian F. Crockett
(of Crockett & Nakamura) for
plaintiff-intervenor-appellee
Joseph W. Hartley, IIT
30
|
9f9c397d-76ae-4f58-bacb-fa6936139209 | State v. Loher | hawaii | Hawaii Supreme Court | LAW UBRARY
No. 26000
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HANAT‘T, 3
Plaintiff Appellee-Respondent, :
ws. - 2
FRANK 0. LOHER,
Defendant-Appeliant-Petitioner,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS =~
(CR. NO, 99-0-1621)
(By: Levinson, J-, for the court!)
Upon consideration of the application for a writ of
certiorari filed on June 7, 2005, by the defendant-appellant-
petitioner Frank 0. Loher, the same, being untimely, is hereby
dismissed for lack of appellate jurisdiction. Sea Hawas's
Revised Statutes § 602-59(c); Hawai'i Rules of Appellate
Procedure Rule 40.1(a); Korsak vy, Hawai'i Permanente Med, Group,
94 Hawai'i 297, 305, 12 P.3d 1238, 1246 (2000) (dismissing
certiorari proceedings for lack of appellate jurisdiction because
petitioner's application for wisi of certiorari was untimely,
inasmuch as the application was filed two days after the thirty
day deadline) .
DATED: Honoluiu, Hawai'i, June 17, 2005.
FOR THE COUR
Bie Mellosdon,
STEVEN H. LEVINSON
Associate Justice
Frank 0. Loher,
pro se, on the writ
2 considered by: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy,
a.
|
137323ca-6adc-4a0f-9a94-426fe14181ce | Office of Disciplinary Counsel v. Sonson | hawaii | Hawaii Supreme Court | No. 26543
IN THE SUPREME COURT OF THE STATE OF HANAT'I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
ALEX M. SONSON, Respondent.
ass
(0c 091-165-6903)
ORDER OF REINSTATEMENT
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Respondent Alex M. Sonson’ s
petition for reinstatement to the practice of law and the record
and files in this case, it appears that Respondent Sonson has
complied with requirements of Rule 2.17(b) of the Rules of the
Suprene Court of the State of Hawai‘. Therefore,
IT IS HEREBY ORDERED that Respondent Alex M. Sonson is
reinstated to the practice of lav in the State of Hawai'i and may
resume the practice of law upon payment of all required
registration fees. See Rule 17 of the Rules of the Supreme Court
This order is effective upon entry.
of the State of Hawai
DATED: Honolulu, Hawai"i, June 2, 2005.
avid F. Klein,
fer respondent’ on
the petition ype
ste Tene babs
iN
© Dadi bh.
|
2d5c2602-cf69-4b16-af2a-ceb2e28cce36 | Associates Financial Services Company of Hawaii, Inc. v. Crabbe | hawaii | Hawaii Supreme Court | LAWUBRARY
No. 25643
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ASSOCIATES FINANCIAL SERVICES COMPANY OF HAWAII, INC.,
‘a Hawai'i corporation, Respondent/Plaintif£/ 3
Counterclaim Defendant-Appellee, Cross-Appellant a
vs. :
RICHARD MEEK CRABBE, Petitioner/Defendant/ s r
Counterclaimant-Appellant, Cross-Appellee
and
DIAL ELECTRIC COMPANY, INC.; MILILANI TOWN ASSOCIATION;
CHILD SUPPORT ENFORCEMENT AGENCY, STATE OF HAWAI'I;
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; and DOE
GOVERNMENTAL UNITS 1-10, Defendants
and
NOLAN LEE KELTINOHOPONO CRABBE, Petitioner/
Intervenor/Counterciaimant-Appellant, Cross-Appellee
(CIV. NO. 97-3300)
ASSOCIATES FINANCIAL SERVICES COMPANY OF HAWAII, INC.,
a Hawai'i corporation, Respondent /Plaintift/
Counterclaim Defendant-Appellee, Cross-Appellant
RICHARD MEEK CRABBE, Petitioner/Defendant/
Counterclaimant~Appellant, Cross~Appellee
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOB ENTITIES 1-10; and DOE
GOVERNMENTAL UNITS 1-10, Defendants
and
NOLAN LEE KELIINOHOPONO CRABBE, Petitioner/
intervenor /Counterclainant-Appellant, Cross-Appellee
(CIV. NO, 0-1-1332)
oo
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NOS. 97-3300 & 00-1~-1332)
car war 8
Pe
‘Acoba, J., for the court!)
‘The joint Application for Writ of Certiorari filed on
May 25, 2005 by Petitioners Nolan Lee Neliinchopono Crabbe and
Richard Meek Crabbe is hereby denied as untimely.
DATED: Honolulu, Hawai'i, June 6, 2005.
FOR THE COURT:
Beociate Justice 3 y
ate gust =
Sore
Nolan Lee Keliinohopono Crabbe,
petitioner, pro se, on the
weit.
James M. Sattler for petitioner
Richard Meek Crabbe, on the
weit.
2 considered by: Moon, C.J, Levinson, Nakayama, Reobs, and
putty, 30)
|
384a864c-30e1-49f9-b865-123071c014b0 | State v. Haili | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
no. 26692
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAT'T, Plaintiff-Appeliee, Ze B
vs. Spo ¢
DANNY H. HAILI, Defendant-Appeilant. E9jg Ft
APPEAL FROM THE FIRST CIRCUIT COURT
(cr. No. 96-1163)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
Defendant-appellant Danny Haili appeals from the
June 29, 2004 judgnent of the first circuit court, the
Honorable Karen Ahn presiding, convicting him of murder in the
4 Revised Statutes (HRS)
second degree in violation of Hawa:
§ 707-701.5(1) (1993) and sentencing him to an indeterminate term
of life imprisonment with the possibility of parole pursuant to
HRS § 706-656 (1993 & Supp, 2004), including a mandatory minimum
term of fifteen years’ imprisonment pursuant to HRS § 706~
660.1(2) (a) (1993).
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 affirm the
circuit court's June 29, 2004 Judgment. Specifically, we hold as
follows: (1) the prosecution’s rebuttal argument did not
misstate the law on the defense of extreme mental or emotional
disturbance. See HRS § 707-702 (1993 & Supp. 2004); State v
*** NOTFOR PUBLICATION ***
Kaiama, @1 Hawai'i 15, 25-26, 911 P.2d 735, 745-46 (1996);
(2) the prosecution's rebuttal argument, in which the prosecution
argued that Haili wes asking for a “break,” vas not plainly
erroneous. See State v. Ganal, €1 Hawai'i 358, 375-76, 917 P.24
370, 387-86 (1996); and (3) assuming aruendo that the
prosecution's personal coments as to the evidence and defense
counsel were improper, the comments were harmless beyond &
reasonable doubt. See State vs Pacheco, 96 Haval'l 63, 93, 26
p.3d $72, $82 (2001). ‘therefore,
In 1S HERESY ORDERED that the circuit court's June 23,
2004 judgnent of conviction and sentence is affirmed.
DATED: Honolulu, Hawai'i, May 24, 2005.
on the briefs:
Samuel P. King, Je. Gar
for defendant appellant
Setoy Be galt .
Mark Yuen, Pein
for plaineifi-appelioe Rrceetne Oradea gree
State of Hawai'l
Vrone, Digs Or +
|
e2a0cecf-a674-4f34-86d4-862b0d07cda4 | In re Doe Children, John Doe, born 03/27/97 and Jane Doe, born 07/19/98 | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26475
HE SUPREME COURT OF THE STATE OF HAWAI'I
DOE CHILDREN,
ass
JOHN DOB, Born on March 27, 1997;
JANE DOE, Born on July 19, 1998
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Fo-S NO. 02-08025)
corps HIN 1cK1 R OF CERTIO:
(By: Moon, C.J., for the court")
Petitioner-Mother-Appellant's application for writ of
ertiorari, filed May 17, 2005 is hereby denied.
DATED: Honolulu, Hawai'i, May 26, 2005.
Herbert Y. Hamada, FOR THE COURT:
for petitioner-nother-
appellant, on the writ g
Gil Justice
* Considered by: Moon, C.u., Levinson, Nakayama, Accba, and Duffy, a3.
|
3088294b-0e25-41ba-84f1-634b39ae8326 | State v. Moetoto | hawaii | Hawaii Supreme Court | No. 27046
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
a
STATE OF HAWAT'T, Plaintiff-Appellee u5)
UIESE MOETOTO, Defendant-Appellant
APPEAL FROM THE FIRST CIRCUIT couRT “|
(CR. NO. 04-1-0204)
ER dO) AMw:
st
‘ORDER GRANTING DEFENDANT-APPELLANT’ S
SECOND MOTION TO WITHDRAW APPEAL
Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Defendant-Appellant Viese
Moetoto’s second motion to withdraw appeal, the papers in
support, and the records and files herein, it appears that:
(2) Appellant states he signed a statement that he did not wish
(2) he voluntarily and of his own free
(3) his
to continue his appeals
will instructed his attorney to withdraw his appeal;
attorney explained that once he withdraws the appeal his case
will be terminated and cannot be renewed; and (4) he has a full
understanding of the consequences of withdrawing his appeal.
‘Therefore,
IT IS HEREBY ORDERED that the motion to withdraw appeal
is granted, and this appeal is dismissed pursuant to HRAP
Rule 42(c).
DATED: Honolulu, Hawai"i, May 16, 2005.
Jobnaaron M. Jones
for defendantappellant
on the motion
q3ws
|
595380b0-1be2-466c-b3e7-cec381bb0e84 | State v. Chung | hawaii | Hawaii Supreme Court |
#4 MoT FOR PUBLICATION ***
No. 26379
IN THE SUPREME COURT OF THE STATE OF HAWAT'E=I3
GEATE OF HAWAT'E, Plaintssf-Rppediee,
NATHAN KINO CHUNG, Defendant-Appellant.
TT
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NO. 02-1-0590(2))
‘SUMMARY DISROSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
‘The defendant-appellant Nathan Kimo Chung appeals from
the judgment of the circuit court of the second circuit, the
Honorable Shackley F. Raffetto presiding, filed on January 8,
2004, convicting him of and sentencing him for five counts of
terroristic threatening in the first degree, in violation of
Hawai'i Revised Statutes (HRS) $§ 707-716(1) (a) and (2) (@)
(1993), and one count of terroristic threatening in the second
degree, in violation of HRS § 707-717(2) (1993). Chung’s sole
contention on appeal is that the circuit court unconstitutionally
sentenced him to a one-year term of imprisonment based upon
uncharged misconduct alleged by the prosecution and witnesses at
well as information contained in his
the sentencing hearing
presentence investigation report.
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the argunents advanced and the issues raised, we affirm the
judgment and sentence of the circuit court.
qa
‘### NOT FOR PUBLICATION *#*
“In determining the particular sentence to be imposed,
‘the court must consider a variety of factors [enumerated in HRS
§ 106-606 [(1993)}] in exercising its discretion in fitting the
punishment to the crime ‘as well as the needs of the individual
defendant and the community.’” State v. Nunes, 72 Hawai'i 521,
524-25, 824 P.2d 837, 839 (1992) (quoting State v. Kumukau, 71
Haw. 218, 225, 787 P.2d 682, 687 (1990)) (footnote omitted) (some
brackets added and some in original). “This court has held that
a sentencing court ‘is not limited to any particular source of
information in considering the sentence to be imposed upon a
defendant." State v. Kahawai, 103 Hawai'i 462, 465, 83 P.3d
725, 728 (2004) (quoting State v. Murphy, 59 Haw. 1, 21, 575 P.2d
448, 461 (1978)). See also HRS § 706-601 (1993 & Supp. 2004);
HRS § 706-602 (1993 & Supp. 2004); and HRS § 706-604(3) (1993).
‘There ie no indication in the record that the circuit
court erroneously considered any uncharged conduct in imposing
Chung’s sentence. Contra Nunes, 72 Hawai'i 521, 824 P.2d 8377
State v, Vellina, 106 Hawai'i 441, 106 P.3d 364, 373 (2005); and
‘State v. Koch, No. 26296, slip op. at 20 (May 9, 2005). Indeed,
the circuit court’s sentences were lenient, considering that
Chung pled guilty to, inter alia, five counts of first-degree
terroristic threatening, class C felonies subject to five-year
indeterminate maximum terms of imprisonment. Chung was certainly
not entitled to probation without a term of imprisonment, and it
was within the circuit court’s discretion to
ntence Chung to
probation, subject to a one-year term of imprisonment as a
special condition. See HRS § 706-624(2)(a) (1993). Moreover,
‘#4 NOT FOR PUBLICATION ***
defense counsel conceded at sentencing that “(w]e expect some
level of jail to be imposed,” and Chung’s signed no contest plea
stated that the prosecution “may seek up to one year in jail.”
As such, the circuit court's sentence did not exceed the “bounds
of reason,” State v. Rauch, 94 Hawai'i 315, 322, 13 P.3d 324, 332
(2000) (citation omitted), and Chung’s “substantial rights,”
State v. Kamana‘o, 103 Hawai'i 315, 319-20, 82 P.3d 401, 405-06
(2003) (citation omitted), were not affected. Therefore,
IT 18 HEREBY ORDERED that the judgment and sentence of
the circuit court is affirmed.
DATED: Honolulu, Hawai"i, May 27, 2005.
on the brief:
Arleen Y. Watanabe, Yi
Deputy Prosecuting Attorney,
for the plaintiff-appellee Scatp lernem
State of Hawai'i
Brian J. De Lima, Niece Coed
for the defendant-appellant
Nathan Kimo Chung
|
732d873e-507f-4c25-b050-4da4731bad40 | KNG Corporation v. Kim | hawaii | Hawaii Supreme Court | wo, 25038
KNG CORPORATION, Plaintiff-Appellee
vs.
CAROL KIM and POLO TRADING, INC., Defendants~Appellants.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. NO. 1RC 02-1052)
ORDER DENYING NOTION FOR RECONSIDERATION
(By: Moon, C.J., Levinson, Nakayama, Acoba, JJ., and
Intermediate Court of Appeals Chief Judge Burns,
Resigned by Reason of Vacancy)
Defendants-Appellants Carel Kim and Polo Trading,
Inc.'s motion for reconsideration filed April 11, 2005,
requesting that this court review its opinion filed on April 1,
2005, vacating the district court of the first circuit's March 5,
2002 judgment for possession and writ of possession and remanding
the case to the district court, is hereby denied.
DATED: Honolulu, Hawai'i, May 6, 2005.
Gary Victor Dubin, Ger
on the motion for
defendant s-appellants. le lobnite
|
59506be3-66ff-4771-b012-90f9c2c06544 | Janra Enterprises, Inc. v. City and County of Honolulu. | hawaii | Hawaii Supreme Court |
/+*POR PUBLICATION:
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00:
JANRA ENTERPRISES, INC., dba Suzie’s
Adult Superstore, Plaintiff-Appellant
CITY AND COUNTY OF HONOLULU, Defendant-Appellee
No. 25814 z
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. No. 99-3645)
JUNE 6, 2005 3
MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ.
‘OPINION OF THE COURT BY ACOBA, J.
We hold that Article 39, Revised Ordinances of Honolulu
(ROH) §§ 41-39.1 through -39.12, and, more specifically, the
provision therein requiring that the area of a booth designated
for viewing pornographic videos purchased on the premises of a
Panoram business! be visible from the booth’s entryway, (1) does
not violate the right to privacy under article I, section 6 of
the Hawai'i Constitution, as applied in State v. Kam, 69 Haw.
See intea note 4
‘***FOR PUBLICATION*#*
oo
493, 748 P.2d 372 (1988), because a right to view adult material
in an enclosed booth of a comercial establishment is not a
necessary corollary to the established right to possess and view
pornographic material in the hone, and (2) does not infringe upon
the right to free speech under article I, section 4 of the
Hawai't Constitution as applied in State v, Bloss, 64 Haw. 148,
637 P.2d 1117 (1981), Smasmuch as (a) in seeking to curtail
criminal activity associated with such booths, the ordinance is
justified without reference to the protected material viewed
within the booths and (b) by allowing panoram customers to
continue to view the sexually explicit material in the booths as
well as at home, the ordinance leaves open alternative channels
of communication.
jecause the May 1, 2003 judgment of the first circuit
court! (the court) entered in favor of Defendant-Appellee City
and County of Honolulu (the City) and against Plaintiff-Appellant
Janra Enterprises, Inc., dba Susie's Adult Superstore (Appellant)
is consistent with the foregoing propositions, we affirm the said
judgment.
1
on Septenber 29, 1999, Appellant filed a complaint to
declare Article 39 unconstitutional and to enjoin its enforcement
on grounds that it violates the rights to freedom of privacy and
‘The Honorable Gray W.8. Chang presided.
2
FOR PUBLICATION®#*
speech as set forth in the Hawaii Constitution, article I,
sctions 4 and 6, respectively.’
Article 39 was enacted on April 30, 1997 as Ordinance
97-11 and became effective on January 1, 1998. On October 1,
1999, the parties stipulated to a temporary restraining order
enjoining the City fron enforcing Article 39 for six months. On
June 22, 2001, the parties entered into a “Stipulation of Facts”
(stipulation) in lieu of a trial. The following factual
background is based upon this stipulation as well as the
uncontested findings of fact by the court.
Appellant, a California corporation, owns and operates
a business known as Suzie’s (Suzie’s) which rents and sells adult
videotapes and operates an arcade consisting of twelve panoram‘
» article 1, section € of the Hawai'i Constitution provides as
follows:
‘The right of the pecple to privacy is recognized and shall
ot be infringed without the showing of a compelling state
interest. The legislature shall take affirmative ateps to
Amplenent this right.
Article I, section 4 of the Hausi's Constitution provides ae follows:
No law shall be enacted respecting an establishment of
religion, or prohibiting the free exercise thereof, oF
abridging the freedom of speech or of the press or the right
of the people peaceably to assemble and to petition the
goverment for s redress of grievances,
“ROW § 41-38.1 (1990) defines “panoran” as
42 device, installed or pleced in a booth, which shows @
Berson sneige the booth a film cr videotape depicting sexual
Eonsuct, sexual excitement, [or] sadcmascchistic abuse, oF
‘Sexval anatomical display, [which] means the display, with
Jess than completely opegue covering of the hunan genitals,
(continued...)
‘***POR PUBLICATION***
see
booths, There are two entrances to Suzie’s, one by the front
door on Kal8kaua and the other through 2 rear door opening into
a parking lot. Suzie’s employees are generally in the front of
the store and monitor the rear entrance via a closed-circuit
television camera, Suzie’s has twelve booths; eleven contain
monitor showing sexually explicit materials when money is
deposited into a slot for a certain time period. The twelfth
booth allows clients to view videos rented or bought from the
store. Fach booth can be completely enclosed by shutting a door,
thereby ensuring complete privacy. Suzie’s employees strictly
enforce its policy of restricting the booths to one person at @
time. In addition, Suzie’s employs a security guard from 9:00
pom. to 5:00 a.m. each day to enforce its policies and monitor
Surie's premises to ensure no unlawful activity occurs on the
premises. Neither the Honolulu Police Department (HPD) nor other
city agencies have received complaints about Suzie’s or its
booths in the twenty years it has been in Wadkikt.
continued)
pubic ares, or Buttock er the fenale breast from below the
top of the areola.
wsiness” is defined as
A *panoran bi
fa business under which at least one panoram in a booth is
ade svailable for viewing by 2 patron in return for a fee
Or other coneideretion charged for activating the pancran,
entering the booth, or accessing or rensining on the
premises containing the booth.
‘***FOR PUBLICATION*#*
Article 39 vas introduced as Bill 89 in 1995. The city
Council enacted Article 39 to address @ perceived problem with
drug dealing and prostitution in the use of panoram booths. The
HPD or other City agencies received complaints concerning panoram
businesses in other parts of Honolulu, but not specifically
concerning activity in any booths at Suzie’s or on its premises.
During the City Council's Budget Committee's consideration of the
bill on January 16, 1997, Councilmenber Yoshimura stated that he
had received complaints about “criminal activity” occurring in
panoran booths, “including drug dealing and prostitution.” In
his view, the bill deterred such activities by providing entrance
into the booths from a continuous main aisle and allowing an
unobstructed Line of sight into the booths.
On January 28, 1997, an HPD officer subnitted written
testimony at the bill's public hearing that downtown panoram
businesses have locked doors, which encourage illegal activities.
According to the officer, individuals leaving the booths were
arrested after exiting with “drug paraphernalia.” In addition,
the officer related that prostitutes reported the booths were
frequently used “to perform their ‘tricks./" The officer
maintained that the bill would “greatly reduce the use of panoram
booths for illegal activity without impacting the intended legal
see infra note 7
‘+4*FOR PUBLICATION
purpose of video viewing.” Subsequent to this testimony, the
bill passed second reading.
The City Council's Budget Committee discussed the bill
again on Mazch 19, 1997. Couneilmenber Yoshimura explained that
attorneys at the prosecutor's office had suggested the bill
because drug dealing and prostitution was occurring in the
booths. The HPD officer, who submitted written testimony at the
January 28, 1987 hearing, submitted the sane testimony at the
March 19, 1997 hearing. Following the hearing, the Budget
Committee passed the bill in Connittee Draft 2 form. The
January 16, 1997 report of the Budget Committee stated that the
“purpose of (Article 39) is to impose restrictions on the panoran
business as a means to curtail reported illicit activities taking
place within the booths.” On April 16, 1997, the City Council
passed the bill and on April 30, 1997, the bill was signed into
lew.
Appellant's application for a panoram business license‘
was denied because Suzie’s agents could not aver that Suzie’
complied with all of the licensure requirements in Article 39.
ically, Suzie's did net comply with § 41-39.8(b),” which
+ Article 29 applies only to businesses displaying pornographic
videos as defined in ROH § 41-39-1- Ses supra note 4
> Rom § 41-39.81b) (2990) provides, in pertinent part, as follows:
joram booth must be visible from
Wd must not be obscured by any
(continued...)
‘The viewing area ine:
a continuous main ate
‘+#*POR PUBLICATION*+*
requires a panoram's viewing area to be visible and unobstructed.
The viewing area of each panoran booth is not visible from the
main aisle because it is completely blocked by a door.
If the owners of Suzie’s were called to testify, they
would have testified as follows:
Sozie's clientele use the panoran booths precisely because a
folly enclosed booth proviges complete privacy, and that, if
the doors were removed, Susie's would lose virtually all of
its panoram clientele. Their custonere want complete
privacy in which to view the sexually explicit material
available in the booths. Their customers do not wish cther
people to see the type of adult films they are watching
Because they do not wish to be labeled by virtue of the type
ef adult films (e.g., homosexual) they enjoy watching, Tf
Suzie’s were required to renove the docrs from its panoram
booths, it would be very difficult for Surie's staff to
ensure thet ony one person at 2 tine be permitted in each
booth
on March 1, 2002, the court Sesued its findings of
fact, conclusions of law, decision and order based on the
stipulation, the parties’ memoranda, and oral argument. The
court ruled in favor of the City and denied Appellant’s request
for declaratory and injunctive relief, concluding, inter alia,
that Appellant “is not likely to prevail on the merits, that the
balance of irreparable danage does not favor the issuance of an
injunction, and that the public interest does not support
granting injunctive relief." The court found, in pertinent part,
as follows:
Even if the cne-person-per-booth rule were to be
1
stablishnent,
enforced rigorously by the owner of @ panor
continued)
curtain, door, wall or other enclosure at the entrance to
the pancram booth
‘***FOR PUBLICATION*#*
ee
(Emphasis
follows
such enforcement will not necessarily fulfill the City's
Goals with respect to restricting drug abuses in the pancran
Bocths, because drug absse can stil) occur with only one
Andividual_in a booth:
Sethe parties stipulated for purposes of this
Litigation thet the sexually explicit materials sold,
Tented, and viewed at Suzie’s are presuned to receive
protection pursuant to the First Anendnent of the United
Btetes Constitution and [alrticle 1, [sJection 4 of the
Hawai's. Constitution
25. By a stipulation filed June 22, 2001, the parties
agreed to merge the heering on the preliminary’ injunction
with the trial on the merits, and thus agreed that the
Court's decision st thie state of the Litigation will be
Gispositive of the trial on the merite of the dispute
added.) The court also concluded, in relevant part, as
3. The First Amendnent of the United states
Constitution and [a]rticle 1, [sJecticn 4 of the Howai't
Constitution allow governments to regulate the manner in
hich views are presented so leng as. (2) the regulation is
ot based on the content of the expression, (b) the
Tegulation is substentislly related to achieving a
significant governmental interest, and (c) the regulation
Jetves open ample alternative channels of communication.
Seg, ea. Ward v. Sock Aaginst Raciam, 491 0,5, 761, 791
(as89)
i, Te city of Honolulu’s Article 39 ss consistent
with these requirenents. Article 39 Le @ content-neutral
Fegulation designed to achieve the important goel of
Fegulating the illegal secondary impacts of the adult
Eneertainnent that i avaliable in the enclosed panoren
booths in s place of public accommodation. These secondary
Tnpacts inelude illegal drag abuse and prostitution, and
Article 39 ie substantially related to achieving the
Intereste because the renoval of doors from the panoram
booths will nake it easier to enforce laws prohibiting drug
abuse and prostitution. 3
‘isernative channels of communication, becuse the movies
Ee*cthtinse to be-show in the parcram booths atter the
socr: a nev are wailable
purchase tobe viewed elsewiere. Article 39 {¢ thus
Constitutional under both tne First Anendnent of the 0.S.
Constivution and (article 1, [election ¢ cf the Hawai‘s
Constitution.
é. pit ‘no decision under either the U.S. or the
inaelace of public accommodation, The decision in Kan,
FOR PUBLICATION:
supra, does not provide support for Plaintiff's claim en
behalf of ita custoners because, unlike Kam, the present
cae doas not involve any snfringenent of = customer's right
to view such adult materiel in the privacy of the custoner’s
home.
(Emphases added.) On September 26, 2002, the court granted
Appellant’s motion for an injunction during the pendency of this
appeal and entered its judgment on May 1, 2003. Appellant filed
its notice of appeal on May 9, 2003.
As mentioned, ROH § 41-39.8 requires panoram business
License applicants to ensure that the viewing area in each
panoram booth is visible from a continuous main aisle and not
obscured by any curtain, door, wall or other enclosure at the
booth’s entrance. See supra note 7. On appeal, Appellant
contends that this open-entry policy violates (1) the right to
freedom of expression in article 1, section 4 of the Hawai'i
Constitution and (2) the right to privacy in article 1, section 6
of the Hawai'i Constitution. Thus Appellant challenges the
ordinance on state constitutional grounds only.
n.
As to the right of privacy, Appellant argues that the
court erred (1) in holding that Article 39 does not violate the
right of privacy in article I, section 6 of the Hawai't
Constitution as construed by Kam, (2) in ruling that Article 39
dees not violate the Hawai'i constitutional right to free speech
in article I, section 4, and (3) in denying a permanent
‘***FOR PUBLICATION*##
injunction to enjoin the City from enforcing Article 39.
Appellant requests this court to vacate the court’s judgment and
remand with instructions to declare Article 39 unconstitutional
and enjoin ite enforcement.
In response, the City contends that (1) this court's
interpretation and application of article I, section 4 of the
Hawai'i Constitution has been consistent with federal court
interpretations and application of the First Amendment,
(2) courts across the country have uniformly rejected clains
asserting that open-booth requirements violate rights of free
expression, (3) the open-booth requirement in ROH § 41-39.8(b) is
not “content-based” because it is designed to address secondary
effects unrelated to expression and even if it were viewed as
content-based, the intermediate level of scrutiny* applicable to
time-place-manner regulations would still apply and the ordinance
ected
meets that level of scrutiny, (4) courts have uniformly re
claims asserting that open-booth requirements violate rights of
privacy, (5) ROH § 41-39.8(b) is not inconsistent with the right
of privacy recognized in article I, section € of the Hawai'i
Constitution, and (6) the economic impact of the City’s panoram
+ Under sntermediate serutiny, © tine, place, or manner restriction
cwill be upnela if it is cesigned to serve a substantial government interest,
Ae narrowly taslored to serve that inte jonably limit
alternative avenves of communication.”
Gounty, 336 F.3d 2353, 166 (9th cir. 2003) testing Kenton v, Plavtine
Theatres, Incl, «75 U's. 41, 50°(2986))
10
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ordinance is not relevant to the analysis of its
constitutionality
qt.
Conclusions of law are analyzed under the right/wrong
standard, Gump v, Wal-Mart Stores, Inc., 93 Hawai'i 417, 420, $
P.3d 407, 410 (2000). Questions of constitutional law are also
reviewed de nove under the right/wrong standard. Bank of Hawai'i
vs Kunimote, $1 Hawai" 372, 387, 984 P.2d 1198, 1213 (1999).
“under the right/wrong standard, this court examines the facts
and answers the question without being required to give any
weight to the trial court’s answer to it.” Leslie v. Estate of
Tavares, 91 Hawai'l 394, 399, 964 P.24 1220, 1225 (1999)
(internal brackets and quotation marks omitted). Additionally,
where the evidence is uncontradicted, this court will consider
issues on which the trial court did not make specific findings.
Fong v. Hashimoto, 92 Hawai'i 637, 645 n.9, 994 P.2d $69, 877 n.9
(app. 1998), vacated on other grounds, 92 Hawai'i 568, 994 P.2d
500 (2000) (citing Molokoa Vill. Dev. Co. v. i , 60
Haw. 582, 593, 593 P.2d 375, 382 (1979)).
Vv.
As to Appellant’s argument that the court “erred in
holding that this case is not controlled by Kam and the Hawai'i
constitutional right to privacy,” Appellant contends (1) “the
right to privacy in Hawaii protects the right to purchase
na
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ee
pornographic materials,” (2) Kam “is not an aberration, but is
part of a trend toward recognizing that state constitutional
rights protect the purchase and viewing of sexually explicit
naterials{,]” (3) “purchaser-viewers of sexually explicit videos
are essentially similar to the purchaser-viewers of pornographic
materials in Kam{,)” and (4) “[t}he City wants to impose a de
facte ban on panoren booths, but under strict scrutiny it must
choose a less restrictive alternative instead.”
The City responds that (1) courts in other
Jurisdictions have consistently held open-booth requirements do
not violate constitutional rights of privacy and (2) ROH § 41-
39.8(b) is not inconsistent with the right of privacy recognized
in this jurisdiction inasmuch as (a) Kam is the only Hawaii
decision that “nodest(1y]” departs from federal precedents and is
designed only to address a paradox in such precedent,
(b) “Hawai'i case law does not support Appellant's claim that the
right to privacy includes the right to view sexually explicit
materials in enclosed booths in places of public acconmodation,”
and (c) “even if a privacy interest is implicated by [the]
panoram ordinance, the City has a compelling interest to justify
the ordinance and has utilized the least drastic alternative.”
ie conclude that the Hawai'i constitutional right to privacy
under article I, section 6 does not encompass the right to view
12
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adult material in an enclosed booth within a commercial
establishment.”
In apparent reference to his first contention,
Appellant maintains that Kam “held that the right to privacy
under (a]rticle I, [section] 6{} of the Hawai'i Constitution
encompasses not only the right to own pornographic materials but
also the correlative right to purchase such materials for one’s
personal use.” In Kam, this court reversed the appellants’s
convictions-under @ statute criminalizing promotion of
pornographic adult magazines on the ground that the statute
infringed on the right to privacy under the Hawai'i Constitution.
69 Haw. at 484-85, 748 P.2d at 373-74.
‘The Kam opinion began by explaining the United States
Suprene Court precedent construing the right to privacy under the
federal constitution. It observed that under Stanley v. Georaia,
394 U.S. 557 (1969), states may not “prohibit an individual from
possessing and viewing . . . pornographic materials in the
privacy of his or her own home.” 69 Haw. at 489-90, 748 P.2d
376, It also acknowledged that the Supreme Court had
“effectively ruled ‘that the protected right to possess obscene
material in the privacy of one’s home does not give rise toa
Appellent’s framing of the issue asks whether “the right to view
‘adult materials in the privacy of a pancran booth fale within the ambit of
Han ang the rignt-to-privacy provision of the Hauais Constitution.”
3
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correlative right to have someone sell or give it to others.
Id. at 490, 748 P.2d at 376 (quoting United States v. 12 200-Ft.
Reels of Super @mm Film, 413 U.S. 123, 128 (1973)). Hence, the
Kam court was confronted with the “paradoxical conflict” inherent
An the Supreme Court cases, id, which recognized the right to
possess and view pornographic material, but not the right to sell
the material or give it to others
Following a discussion of Supreme Court case law
premised on the first amendment, this court noted that the
‘Hawaii Constitution article I, section 6, . ; . afford{ed) much
greater privacy rights than the federal right to privacy, so [it]
was not bound by the United States Supreme Court precedents.”
Ide at 491, 748 P.2d at 377, Acknowledging that it was obligated
to construe the Hawai'i Constitution “with due regard to the
intent of the framers and the people adopting it{,]” id, at 492,
748 P.2¢ at 377, this court examined the reports of the 1978
Constitutional Convention. This review led the Kam court to
conclude that the privacy concept protected by the Hawai'i
Constitution encompasses “certain highly personal and intimate
affairs of @ person's life.” Id. at 493, 748 P.2d at 378
(brackets omitted). Accordingly, it held that the “personal
decision . . . to read or view pornographic material in the
privacy of one’s own home must be afforded the protection of the
Hawaii Constitution article I,
ction 6 from government
u
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interference.” Id, at 493, 748 P.2d at 378-79. It was reasoned
that “[s]ince a person has the right to view pornographic items
at home, there necessarily follows a correlative right to
purchase such materials for this personal use, or the underlying
privacy right becomes meaningless.” Id, at 495, 748 P.2d at 380
(emphasis added) .'°
That the rights to sell and purchase pornographic
material recognized in Kam were termed “correlative” is
significant. The rights to sell and purchase are an extension of
the Stanley right to possess and view pornographic material in
the home. Cf, State v. Mallan, 66 Hawai'i 440, 445, 950 P.2d
178, 183 (1998) ("[E]ven though the material may be purchased
outside the home, it still must be purchased for personal use
within the home.”). Thus, Appellant's interpretation of the Kan
holding is incorrect. Kam stands for the proposition that under
the facts of that case, the Hawai'i right to privacy encompasses
the correlative right to purchase pornographic material as it was
used in the home, and not, as Appellant too broadly suggests, “in
a private place of [one’s] own choosing.”
% Quoting fren Justice Stevens's dissent in Fone v. 1iinets, ¢81
vs. 457, S18 (1967) (Stevens, Ju, stesenting, joined by Marshall, oy and
Brennan, J., An part], the Ham court observed that ‘st insults the citizensy
by deciaring ite right to read and possess material which it may not legally
obtain.'” 69 Haw, at 691, 148 Ped st 377.
% White ene’s choice of a particular place clained to be deserving
of privacy does not necessarily inevlate it under cur constitution’: privacy
Clause, Kam would reascnably extend to those places, Like # hone, objectively
‘continved.
as
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We are not persuaded by Appellant's second contention,
which maintains that Kan is a “trend toward recognizing that
state constitutional rights protect the purchase and viewing of
sexually explicit materials.” The cases cited by Appellant,
State v, Henry, 732 P.2d 9 (Ore, 1987), and Pap’s AM. v, Erie,
812 A.2d $91 (Pa. 2002) [hereinafter Pap’s III], were not decided
under state constitutional protections of privacy, but of free
speech. Hence, they do not aid in advancing Appellant’s position
with respect to the privacy right under article I, section 6 of
the Hawai'i Constitution.
In its third contention, Appellant declares that “what
mattered to the Kam court was not the home pax se, [but] the hone
as a place of privacy appropriate to the particular medium” and
that here, where the “medium” is adult videos, as opposed to
magazines, the panoram booth is the appropriate “place of
privacy.” But, as stated supra, this reading of Kam is overly
broad. The Kam rationale for recognizing the correlative rights
to sell and purchase adult material was that, without these
concomitant rights, the already established right to possess and
view adult material would be “meaningless.” 69 Haw. at 495, 748
scontinved)
s cwelling places
16
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P.2d at 495. In contrast, a purported right to view adult
material in panoram booths is not necessary to give effect or
“meaning” to the right to possess and view adult material.
Furthermore, panoran booths are located in commercial
establishments and, hence, any regulation of the booths does not
impact a person’s right to possess and view adult material in @
home.
Accepting Appellant's suggestion that the privacy right
depends upon the particular medium of adult material would extend
article I, section 6 protection to any place where a person
encloses him or herself, allowing the person to create, in
Appellant's words, his or her own “place(s) of privacy.” There
is nothing in the history of article I, section 6 that would
appear to extend such privacy protection, however, in a
commercial establishment open to the public.” Cf, Paris Adult
= Appellent argues thet “[mJeny of Suzie’s patrons . . . would not
buy videos that could hot be previewed, and would not view other videos
Without clear assurances of privacy inthe panoram booths." However,
According to the stipulated facts, Susie's provides @ single booth that allows
a customer to view a videotape “purchased or rented at # set price from the
(Eaphases added.) Previewing prior to sale or purchase was not
stipuleted to as fact. Appellant's vice presicant and general manager stated
in 2 declaration that “(platrone at Suzie’s often view film or videotape and
later purchase the film or videotape viewed.” He did not say, however, that
without the preview option, custoners would not purchase the videotapes. Even
Tr the contention were established, we ere not convinced that the right to
privacy should encospass a Fight to preview sexually explicit materials price
fo purchase in an enclosed booth on comercial premises as discussed above
tn Kam, this court looked to the report of the 1978 Constitutional
Convention's Comittee on Bill of Rights, Suffrage and Elections, which
stated, in part, as to the right of privacy, as follows:
‘At cives cach and every individual the riaht to control,
Teontinved...)
vv
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Theatre Iv. Slaton, 413 U.S. 49, 66 (1973) (observing that the
United States Suprene Court has “declined to equate the privacy
of the home relied on in Stanley with a ‘zone’ of ‘privacy’ that
follows @ distributor or a consumer of obscene materials wherever
he goes”). As we note herein, pancram booth users are still able
to view the adult material in the booths, inasmuch as Article 39
dos
not preclude the viewing, selling, or purchasing of the
material found at panoram businesses, but requires only that the
viewing area in the booths “not be obscured by any curtain, door,
wall or other enclosure at the entrance(s}.” ROH § 41-39.8.
>.
Appellant does not provide a basis for protecting the
viewing of adult material in an enclosed panoram booth
independent of Kam, but maintains, throughout its briefs, that
Kam is dispositive. Inasmuch as Appellant does not explain how
(.. .continued)
gertain bichly personal apd intimate affairs of his om
fe. The rieht to persons] autonony, co dictate hie
vSGy. he duetice Abe states in hig concurring opinion in
States. Kantner, 53 Wlaw).3(71], 493 P.2a 30€ (1972)
fech person hes the “fundanental right of liberty to make a
Fool Of himself ae long as his act does not endanger others,
and that the state nay regulate the conduct of a person
under pain of criminal poniehnent only when his actions
affect the general welfare thet 1s, where others are harmed
or likely te be harmed.”
69 Haw. at 492, 748 P.2d at 378 (quoting Stand. Comm. Rep. No. 63, in I
Proceedings of the Constitutional convention of Hawaii of 1976, at 674-75
(1380) (enphasis added!) .
“Appell
yetauson, 103 Hawei's 1
1: argues that an Intermediate Court of Appeals case, State.
+78 F.3d 1389 (App. 2003), "recognized by cles!
(cent inued. .
18
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viewing adult material in an enclosed panoram booth would
otherwise fall within the perimeters of article I, section 6
protection, ise, how it constitutes a “certain highly personal
and intimate affair() of [a person's) life," Kam, 69 Haw. at
493, 748 P.2d at 378, cf, Paris Adult Theatre I, 413 U.S. at 66
("Nothing . . . in this Court’s decisions intimates that there is
(continued)
Amplication that there is « reasonable expectation of privacy in an enclosed
Penoran booth.” Lauscn, however, involved privacy in the criminal search and
inure context under article I, section 7, which involves a distinct end
separate constitutions) analysis apart from that of article I, section 6. see
Stake x. Agata, 92 Hawai'i 454, 463 n.10, 992 P.26 723, 732 110 (App. 1999)
(distinguishing between privacy as "2 fundanentel right” under article I,
section 6 and privacy at "s test of... the prohibition against unreasonable
jFches and seizures” under article I, section 7)
% appellant asserts that “adult videos are ancng those ‘highly
intimate and personal affaire’ for which one expects privacy.” Additionally,
Ana'foothote, it posits that
gnificant portion of Susie's clientele, those
sonal and in viewine of
which may offer a chance to vicariously
explore sexcal fantasies or play out sexual preferences, oF
may satisfy @ curiosity about various sexval practices, or
the like. Moreover, Susie's gey custoners frequently
consider that privacy is a necessity not just in the
ordinary sense, but also for personal safety reasons, as
pointed out by Janra’s counsel before the circuit court, in
view of national press reports of periodic, vicious
homophobic attacks on gay’ men,
(flor
(Gmphasis added.) | Pursuant to Stanley and Kam, Appellant is correct in its
observation that “the viewing of adult videos” is protected under article T,
Section €. But the question here is not whether viewing is 2 protected right,
bat whether viewing ina pancran booth at @ commercial establisnment falle
within such protection.
Ne are not unnindful of Appellant’ concerns regarding “a
significant portion of Susie's clientele” and “gay customers.” However, these
assertions are not facts that were stipvlates to, nor are there facts in the
Fecord fron which the assertions can be verified reasonably. We do not
moreover, as stipvlates to, Appellant enforces neasures to insure solitude and
Gsolation, It was stipulated thet employees are located near the front of the
door, explcyees monitor 2 back door, each of the booths hae s seperate
entrance, use of a booth is restricted to one person at a tine, and » security
guard is'on the premises fron p.m. tos em. See discussion in Part T
as
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eee
any ‘fundamental’ privacy right ‘implicit in the concept of
ordered Liberty’ to watch obscene movies in places of public
acconmodation.”), we must decline to broaden the correlative
rights under Kam. Accordingly, we hold thet viewing adult
material in an enclosed panoram beoth on conmercial premises is
not protected by the fundamental right of privacy enshrined in
article 1, section 6 of the Hawai'i Constitution. In Light of
cur holding, we need not consider the issue of whether the City
must choose the least drastic alternative under strict scrutiny
as proposed in Appellant's fourth contention.
v.
Appellant argues that Article 39 violates the free
speech clause of article I, section 4 of the Hawai'i Constitution
because (1) pursuant to Blogs, 64 Haw, 148, 637 P.2d 1117,
Article 39 “fails to leave ample practical viewing alternatives
for many viewers, making the ordinance a de facte ban on panoram
booths{,]” (2) Article 39 “is plainly content based, and the
City’s continued recitation of legal fictions premised on
‘secondary effects’ will not alter that basic fact{,]* and (3)
“[t}his court should follow the lead of the Supreme Court of
Pennsylvania in its honest and forthright analysis of free speech
issues” in Bap’s III, in Lieu of the “discredited legal fiction
[anong the federal jurisdictions} that content-based laws are
‘content neutral.
20
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‘The City responds that (1) “ample alternative channels
certainly exist for sexually-explicit films and videotapes,
because the booths
Including the very same booths themselves
can still be used for viewing even when their doors are
renoved(,]” (2) the open-booth requirement is not content based,
but designed to address “secondary effects” unrelated to
expression, and even if viewed as content based, Article 39
constitutes @ valid “classic ‘manner’ regulation governed by the
‘time-place-nanner’ standerd” in Bless, and (3) this court should
follow federal jurisdictions that have “uniformly . . . rejected”
the claim that open-booth requirements violate freedom of
expression inasmuch as this court's application of article 1,
n consistent with federal court application of
section 4 has b
the First Amendment.
Preliminarily, we note thet the parties stipulated that
“(flor purposes of this Litigation, the sexually explicit
materials sold, rented, and viewed at Suzie’s are presumed to
receive protection to the First Anendment of the United States
Constitution and [a]rticle I, [section] 4, of the Hawaii
Constitution." We observe, however, that Appellant challenges
Article 39 solely on state constitutional grounds.
vi.
Appellant maintains that Bloss, a commercial speech
case, is controlling. In Bloss, this court addressed the
21
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constitutionality of an ordinance that made it “unlawful for any
person . . . to distribute conmercial handbills, or to carry on
or conduct any commercial promotional schene, advertising program
or similar activity” in designated areas, including Waikiki
64 Haw, at 149, 637 P.2d at 1119-20, ‘The United States Supreme
Court's four-part test for determining the validity of government
restrictions on comercial speech as developed in Central Hudson
Gas & Elec, Corp, v. Pub. Serv, Comm'n, 447 U.S. $57 (1980) was
adopted." In applying the fourth prong of the Central Hudson
test -- whether “the regulation [is] more extensive than
necessary to serve the asserted governmental interest (,]” 64 Haw.
at 160, 637 P.2d at 1126, -- this court inguired whether the
handbilling ordinance presented a “reasonable time, place and
manner restriction,” id., and adopted the Supreme Court's three-
part test in Virginia state 84, of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748 (1976).
onder Bloss/Viroinia Pharmacy, time, place, and manner
restrictions are constitutionally permissible if they (1) are
“justified without reference to the content of the regulated
“Blass concerned commercial speech. It established an analytical
framework for essessing speech that "is given lesser protection than other
forms of expression.” 64 Baw. at 187, 637 F.2d at 1125.
As indicated dn Bos, the Central udeon test inguires whether
(2) “the expression de protected by the First Amenarent ,]” (2) “the asserted
tial)" (3) ‘the regulation directly advences
eal, 1° and (4) "[the regulation] is not more
the interest.” 68 Haw. at 156, 637 Pid
Governmental interest is #1
the governmental inverest.
at 1125 (quoting Central Hidson,
‘***FOR PUBLICATION®**
speech,” (2) “serve a significant governmental interest,” and
(3) “leave open ample alternative channels for communication of
the information.”* Id, at 160-61, 637 P.2d at 1127 (quoting
Virginia Pharmacy, 425 U.S. at 771). This court began by noting
that the handbilling ordinance could not be considered a proper
regulation as to time or manner because it “prohibit ed]
commercial speech at all time and in any manner in Waikiki.” Id.
at 161, 637 P.2d at 1127. It was also determined that the
ordinance was “not a permissible place regulation” because there
was “nothing in the record showing the incompatibility of
commercial handbilling with activities in Waikiki.” Id.
Apparently referring to the first element of the Yirainia
Phammacy test, this court then stated that
[ip aedition, time, place and manner restrictions must be
content neutral, and must apply to all forms of speech. BY
Elnsles cut speech of 2 particular content and seeks te
‘Thus, this regulation
Cannot be considered content nestral. The instant ordinance
permits nonconmercial forms of speech and hendbiiling while
Completely banning commercial handbilling in Waikiki
Id. (emphasis added) (citations omitted). Finally, with res
to the third element of the Virainia Pharmacy test, the Bloss
court held that the total ban on commercial handbills did “not
leave open ample alternative channels of communication” because
% dp should be noted that the court in this case did not cite to
Bicas, but to the United State Suprene Court's decision in
Agninst Racism, 491 U.S. 761, 791 (1989). However, the court's citation to
Hard if -not conflicting inasmuch as the Hard test for time, place, oF manner
Fectrictions is identical to the Bless test
23
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the alternatives proffered by the State -- advertising through
newspapers, radio, key rings, ballpoint pens, or tourist
publications -- would “involve greater expense and may be a less
effective means for communicating messages.” Id, at 161-62, 637
P.2d at 1127-28 (emphases added). It was reasoned that
“[a)ithough preventing public nuisances to enhance the
attractiveness of tourism is important, on balance, this
is not 0 justi a
comme h, which dij s informs ther
false, misleading nor related to illegal activity.” Id. at 162,
637 F.2d at 1128 (emphasis added). Consequently, this court
recognized that speech may be regulated when, “on balance,”
government's interest “Justif(ies]” the regulation. Id.
vin.
a.
Appellant’ s azgunents are related to the first and
third elements of the Bloss test for time, place, and manner
restrictions. As to the first element, whether the restriction
is “justified without reference to the content of the regulated
speech,” we answer in the affirmative. In Bloss, this court
determined that the handbilling ordinance could not “be
considered content neutral” because it “single{d) out speech of a
particular content and [sought] to prevent its dissemination
completely.” Id, at 161, 637 P.2d at 1127. In other words, the
24
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complete ban of commercial handbilling evinced government’ s
disapproval of the content of the speech itself -~ precisely what
the free speech guarantee protects against. Accordingly, this
court could not deen the handbilling ordinance in Bloss to be
“jugtified without reference to the content of the regulated
speech.” Id. at 160, 637 P.24 at 1127.
In contrast, Article 39 does not effectuate a total ban
on panoram booths or the sexvally explicit material therein and
it does not interfere with the way the material is transmitted to
panoram viewers. Blass also held that the government's interest
in preventing nuisances to enhance the attractiveness of tourism,
Yon balance,” was “not sufficient to justify the total
suppression of, commercial speech, which disseminate [a]
information that (was] neither false, misleading, nor related to
Allegal activity.” Id. at 162, 637 P.2d at 1126. Unlike the
commercial handbilling at issue in Blogs, the panoram booths here
have been found to be “related to illegal activity.”
The City enacted Article 39 to reduce the “illegal
activity” “related” to panoran booths -- “drug dealing and acts
of prostitution.” The City Council determined that enclosed
panoram booths, while providing @ means to view sexually explicit
material, also harbored prostitution and illegal drug activity.
Removing the doors from the booths can, as the court found, “make
it easier to enforce laws prohibiting drug abuse and
28
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prostitution” without affecting the films being shown. Article
39 does not prohibit the viewing, selling, purchasing, or renting
of material found at panoram establishments. Thus, Article 39,
in contrast to the handbilling ordinance in Bloss, does not
“single[) out” sexually explicit material shown at panoram booths
and does not “seek{) to prevent its dissemination completely.”
Id. at 161, 637 P.2d at 1127. Inasmuch, then, as Article 39 does
not altogether ban panoram booths and is, instead, designed to
reduce the illegal activity associated with the booths, we hold
that Article 39 is justified without reference to the sexually
explicit material viewed in panoram booths, satisfying the first
element of the Bloss test.
% the court found that “drug abuse can still occur with only one
sndividual in s booth.” Bot, Appellant argues that “[wjnen Article 39 wae
enacted, the City’s concern was "drug dealing’ in pancram booths. In the
circuit court’s findings, however, a new concern ~~ ‘crog abuse (by an)
{naividual in a booth! == appeared the first tine, The circuit court’
finding is clearly erroneous, sf it se withovt evidentiary support in the
Fecord.” (Emphasis and brackets in original.) —(Cstation omitted.)
However, the court’s finding is supported by police testimony that
*{o}fficers on routine inspections have made drug arrests after witnessing
Andiviguels exiting these booths with drug parephernalia.”" Horeover,
throughout its considerstion of Article 38, the City Council referred to broad
objectives ~~ “protect ling) public heslth snd safety" end “curtail (ing)
criminal activity,” such ae "drug use and cele and prostitution.” (Emphasis
ded.) And se noted previously, the January 16, 1997 report of the Budget
Ceanittee, attached as Exhibit F to the stipolated facts, stated that the
“purpose of [Article 39] is to... curtail
taking place within the booths
Feference to "drug abuse” as opposed te
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5
rm
As to the third elenent of the Bloss test, we concur in
the court's conclusion no. 4 that “Article 39 leaves open ample
alternative channele of communication because the movies can
continue to be shown in the panoram booths after the doors are
removed therefrom, and they are also available for purchase to be
viewed elsewhere.” Appellant argues that “Article 39 fails to
leave ample practical viewing alternatives for many viewers{.)”
Tt maintains that “this court held that the ordinance must not be
‘nore extensive than necessary to serve the asserted governmental
interest’ and that any such ordinance must ‘leave open ample
alternative channels of communication,’ not just in theory, but
in practice.”
In maintaining that there are no ample alternative
channels of communication, Appellant asserts (1) that “[mJany of
Suzie’s patrons would be so uncomfortable in an open-booth, no
closed-doors atmosphere that they simply would not return,”
(2) that for tourists, many from Japan, viewing elsewhere may be
an impossibility, (3) that for Osbu residents, viewing at hone
may be @ practical impossibility if they lack suitable videotape
players or if children live at the viewer's hone, (4) that
patrons would not buy videos that could not be previewed and
Would not view other videos without clear assurances of privacy
2
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in the booths, an argument made lso with respect to the privacy
claim, see supra note 12, (5) that for “gay customers” in
particular, “non-private viewing is dangerously impractical”
because these menbers of the cornunity depend upon the privacy
afforded by closed booths for “personal security reasons,”
another argunent repeated with respect to its privacy claim, see
gupta note 15, and (6) that “[a] real potential exists that
Suzie’s may be forced out of business for lack of its patrons(]
being assured of privacy in which to view the videos they wish.”
Appellant concludes that “[c]onsequently, the circuit court's
impractical and more costly alternatives . . . do not pass
constitutional muster.”
2.
In Bloss, the State's proffered alternative channels of
communication were rejected as being “far fron satisfactory since
they may involve greater expense and may be a less effective
means for communicating messages.” 64 Haw. at 162, 637 P.24 at
2128. We conclude that Appellants have failed to establish that
the open-entry requirenent involves greater expense and that the
ordinance would diminish the “means for communicating [the]
messages.” Ide
Appellant's assertions (1), (4), and (5) that patrons
would be concerned over who might see them viewing films would
not increase the expense or reduce the effectiveness of
28
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Oe
disseminating the material. The panoram customers patronize @
booth or booths “depicting sexual conduct, sexual excitement,
[or) sadomasochistic abuse [as these terms are defined in HRS
§ 712-1210,] or sexual anatomical display,” which “means the
display, with less than completely opaque covering, of the human
genitals, pubic area, or buttock or the female breast from below
the top of the areola.” ROH § 41-39.1 (1990); see supra note 4.
Hence, such an establishment by definition serves to satisfy such
viewing. It is arguable that the attention, if any, associated
with the patronage of these establishments attaches when a person
enters the establishment, irrespective of the material viewed in
the booth. Cf. Movie & Video World, Inc. v. Bd. of County
Comm'rs, 723 F, Supp. 695, 700 (S.D. Fla. 1969) (rejecting
testimony of adult establishment owner that ‘some’ of his
customers told him that they would not pay to watch films in the
booths if there were no doors on the video booths|,]” by
observing that “anonymity is destroyed even before the patron
enter{s) the building”). Therefore, we are not persuaded on this
record that the open-entry requirement would cause panoram booth
customers to be more “unconfortable” or subject to greater
sanxiety,” assuming that such factors are determinative.*
* ae to assertions (4) and (S), we reiterate the enelysis set forth
in notes 12 and 18, respectively. Ae previcusly discussed in the privacy
abalveie, see supra nete 12, Appellant's contention that custoners “would not
sees scceRSR SEES, Sohce be previewes” cannot be deterained from the record,
{cont inved.
)
23
***FOR PUBLICATION***
With respect to assertion (2), there are no stipulated
facts or stipulation as to testimony that tourists would be
hindered or that “viewing [would be] an impossibility” (emphasis
added) for them. As with other customers, tourists are not
banned from watching the films, and compatible video players may
be accessible in hotel rooms or otherwise. Assertion (3) that it
“nay be 2 practical impossibility” (emphasis added) for residents
to look st the videos at home because children or other adults
who do not wish to see the videos may be present, does not appear
to be cogent. This argument is not persuasive because a viewer
may separate him or herself from other members of the household
by surveying the video alone or in another room.
Finally, as to assertion (6) that Article 39 may cause
a decline in Appellant’s business, we must note, as have other
speech “is not concerned with
courts, that the right to fr
economic impact; rather it looks only to the effect of {an]
ordinance upon freedom of expression.” Comm’
Adult Entn’t, 10 F.3d 123, 132 n.10 (3d Cir. 1993) (quoting Young
YaBDL Mini Theatres, 427 U.S. 50, 78 (1976) (Powell, J.,
concurring)). See also Movie & Video World, Inc, 723 F. Supp.
™(, continued)
Likewise, Appellant's contention
Spersonal
that “gay customers” need enclosed booths for
not stipulated to below, and cennot be
fOr the purpose of our cecision. We noted,
Appellant to Protect its custoners. gee
30
*FOR PUBLICATION***
at 700 (“First Amendment does not guarantee anyone profit; all it
requires is that speech, expression, and ideas be allowed a
physically adequate forum.”), Inasmuch as Article 39 does not
preclude the viewing of sexually explicit material in panoran
booths, the ordinance may be upheld despite any purported adverse
economic effects upon panoram business owners.
“ultimately, the ordinance does not ban viewing or affect the
manner in which the film is displayed. See Mitchell, 10 F.3d at
144 (determining that an open-door requirement left “ample
alternative channels of communication” because “[nlothing in it
Limited] the number of viewing booths or the type of material
that can be shown within the booths”). Therefore, we cannot say
that Article 39 subjects panoram businesses or customers to
greater expense or that it results ina less effective means for
disseminating sexually explicit material.
3.
Additionally, we observe that it is unclear how
Appellant's three proposed alternatives to the open-entry
requizenent -- (1) enforcement of a one-person-per-booth rule,
(2) installation of overhead ceiling mirrors, and (3) a partial
door requirenent -- would be nore protective of a panoram
custoner's viewing, while simultaneously allowing the City to
achieve its purpose of curtailing criminal activity. As to the
first alternative, as Appellant states, it enforces the rule now,
31
‘**4FOR PUBLICATION*#*
but such a rule is not an alternative that would permit.
observation of the customer's area and, hence, would not achieve
the City’s objective of curtailing drug activities.
Also, there is little difference between @ ceiling
mirror, Appellant's second alternative, a “partial door,”
Appellant's third alternative, and an opening, as prescribed in
Article 39, inasmuch as all three alternatives enable one to
examine the inner booth. The ordinance provides that “[t]he
viewing area in each panoram booth must be visible from a
continuous main aisle and must not be obscured by a curtain,
door, wall or other enclosure at the entrance of the panoram
booth.” ROH § 41-39.8(b). Thus, Article 39 directs that the
opening to the panoram booth be sufficient to reveal the viewing
vant.
Inasmuch as we have determined that the ordinance
satisfies the Bloss test, we do not discuss Appellant's arguments
relating to the doctrine of “secondary effects” and the case of
* We observe that the United states Suprene Court has “struggle[d}
to articulate a [msnagesbie] standard te govern” restrictions on erotic
expression. Eao'e III, 812 A.26 at 611. Ses Los Angeles v. Alaneds Socks,
Ine, £35 U.S. 425 (2002); Exie v, fan's Aue, 929 0.8. 277 (2000); Benteny
Gis'U.s, 42. ‘the multiple opinions in these cases reflect the division among
the Suprene Court justices on the Benton “secondary effects” doctrine, which
we decline to address in assessing the free speech guarentee under the Hawai'i
Constitution. "we note, however, that the federel courte have upheld
regulations similar to Article 29 under the secondary effects test. See,
igs, Mitchell, 10 F.3¢ at 141, 144 (opholding an open-door requirenent a8
Yalta content-nevtrel time, place, ond manner regulstion); Eanon Core, wv.
Basten, 923 F.2d 470, 674 (eth chy, 199]) lopholding an ordinance prohibiting
Teontinsed.--)
32
‘***FOR PUBLICATION®**
Pap’s II, €12 A.24 591.* In light of the discussion supra, we
do not believe Appellant has established violations of the right
to privacy or of speech under the Hawai'i Constitution.
Accordingly, we need not address Appellant’s arguments as to the
courts denial of injunctive and declaratory relief.
me.
Based on the foregoing, the court’s May 1, 2003
judgment is affirmed. However, in light of (1) the parties’
stipulation to stay enforcement of the administrative rules
adopted to implement Article 39 and (2) the court’s Septenber 27,
2002 order granting Appellant's motion for injunction during
2. -continved)
video booths to be obscured by curtain, door, or other enclosure as a valid
time, place, and manner restricticn). See alse
336 F.3d at 1159 [recognizing that six federal circuits have upheld hours of
operation restrictions on sexually-oriented businesses under the secondary
effects test).
= th Bapts LiL, the Pennsylvania Supreme Court held that the
Pennaylvansa Constitution provided greater protection than the first anendnent,
ang, therefore, a public indecency ordinance making it 2 summary offense to
appear in public in a state of nudity failed under strict scrutiny. 612 A.2d
at $93. The court concluded that “[i}t is hardly onerous to require that 2
Fegulation that would seek to govern such expression, offered in a closed
establishnent to consenting adult patrons, be accomplished by @ narrower, lees
intrusive method Shan the total ban on expression adopted here.” 1d. at 612
(emphasis added)
‘The open-door requirement st issue in this case does not
constitute 2 "totel ban on expression.” Thus, while minaful that we are “the
Gltimate judicial tribunal with finel, unreviewsble authority to interpret and
enforce the Hawaii Constitution,” Kam, €9 Haw. at 491, 748 £.24 at 377, and
that Like the Pennsylvania Suprene Court, we have “not hesitated to render
Tan] independent judgnent ss a matter of distinct and enforceable (Hawa!)
constitutional lew(,]" £12 A.26 at 607, we axe not persuaded to follow the
Shalysis of the Pennaylvanta Court gue to the factusl disaiailarities between
the present case and Ban's III.
33
**sFOR PUBLICATION*#*
pendency of appeal, the case is remanded to the court for entry
of an appropriate order in accordance with this opinion.
on the briefs:
tarle A. Partington G4
for plaintiif= Ba Licrmer—
for plaintiif=
appellant.
Jon M. Van Dyke for
defendant-appellee. 5 C
34
|
9a47ef93-ac08-4f16-a5ed-bd54db31130b | State v. Lagafaatasi | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27156
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Plaintiff-Appellee
id 18 AWW soo
oats
te
APPEAL FROM THE FIRST CIRCUIT COURT
(FO-CR. NO. 04-1-1592)
ORDER
Levinson, Nakayama, and
(By: Moon, C.J.
J., Concurring Separately)
Duffy, JJ.7 With Acoba,
upon review of the counterstatement of jurisdiction
filed by Plaintifg-Appellee State of Hawai'i and the records and
files herein, it appears that: (1) Defendant-Appellant is
appealing from the, January 31, 2005 order setting aside the ore
order of November 3, 2004 dismissing the case, judicial
determination of unfitness to proceed, suspension of proceedings
and order of conmitment to the custody of the director of the
Department of Health; (2) the right to appeal in a criminal case
is purely statutory and exists only when given by some
constitutional or statutory provision, State v. Oshize, 69 Haw.
(3) Appellant cites HRS § 641-11 and
438, 746 P.2d 568 (1987);
HRS § 571-54 as the statutory grounds for appeal; (4) HRS §
641-11 allows an appeal from a judgment of a circuit court, but
the order being appealed in the instant case is not a circuit
court judgment, see State v, Johnson, 63 Haw. 9, 619 P.2d 1076
(2980) (unless an appeal taken pursuant to HRS § 641-11 is froma
final judgment or sentence, an appeal must be dismissed by the
appellate court for lack of jurisdiction); (5) the order being
appealed is not appealable pursuant to HRS § 571-54, which
governs appeals in family court cases; and (6) inasmuch as the
order being appealed is not an appealable order pursuant to HRS
§ 641-11 of HRS § 571-54, this court lacks jurisdiction.
Therefore,
IT IS HEREBY ORDERED that the appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai's, May. 31, 2005.
Cou
Psestee Cae ove
Yan Baltes be
I concur in the result.
prose
|
7a792163-c23f-4532-8eba-c63170b3f8bf | State v. Koch | hawaii | Hawaii Supreme Court | W LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00 —-~
STATE OF HAWAI'I, Plaintiff-Appelle
vs.
e
No, 26296 a =
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NOS. 02-1-0558(1) and 03-1-0271(1))
aa
MaY 31, 2005
MOTION FOR RECONSIDERATION
MOON, C.J., LEVINSON, NAKAYAMA, DUFFY, JJ,7
AND ACOBA, J., DISSENTING
‘The motion for reconsideration filed on May 20, 2005 by
ppellant, John James Caleb Koch, requesting that this
filed on May 9, 2005, is
defendant~
court review its published opinion,
hereby denied.
Phyllis J. Hironaka, G or
deputy public defender, Pewee.
for the defendant-appeliant
john Janes Caleb Koch,
John James Caleb K Bevan £ sare
fon the motion
Gene Datta by.
I would grant the motion for reconsideration.
Pon
|
84a5a15e-9c10-4312-bcdd-a8d3e40f2642 | Smith v. Maui County Board of Variance and Appeals | hawaii | Hawaii Supreme Court | No, 26974
IN THE SUPREME COURT OF THE STATE OF HAWAI'I py
JANES &, WITH, Clainant /Appellant-Aopelant=s=
MAUI COUNTY BOARD OF VARIANCE AND APPEALS,
ve. #3
y
Defendant /Appeliee-Appel lee 8
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. No, 03-1-0440)
(By: Moon, C-J-, Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Appellant James R. Smith's motion
for reconsideration of the April 11, 2005 order denying the
notion to modify and correct record on appeal, the papers in
support, and the records and files herein,
IT 1S HEREBY ORDERED that the motion for
reconsideration is denied.
DATED: Honolulu, Hawai'i, May 11, 2005.
James R. Smith, claimant /
appellant-appellant,
pro se, on the motion.
Reset Orca youre
ma
Gene. mys
oams
|
76b48cd6-bbcf-4857-97dc-05b82b61438a | State v. Aquino | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No, 27084
a0,
IN THE SUPREME COURT OF THE STATE OF HAWAES
‘Nar soz
3
STATE OF HAWAI'I, Plaintiff-Appellee #4
Lvs
t
VALARIE LEHUANANT AQUINO, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
(CIT. No. 0939250¥m)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that this court
informed Appellant by letter dated April 8, 2005 that the time
for filing the statement of jurisdiction expired on March 24,
2005 and by letter dated May 13, 2005 that the time for
filing the opening brief expired on April 23, 2005 and that,
pursuant to Rule 30 of the Hawai'i Rules of Appellate Procedure,
the matter would be called to the attention of the 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.
DATED: Honolulu, Hawai'i, June 6, 2005.
aang
|
fe689fa7-1e1e-4c34-90ae-3374e935b778 | Crawford v. Kauai Medical Clinic | hawaii | Hawaii Supreme Court | '*** NOT FOR PUBLICATION ***
Wo. 27116
IN THE SUPREME COURT OF THE STATE OF HAWAT
MARY CRAWFORD, Plaintiff-Appellant
923)
KAUAI MEDICAL CLINIC; DONNA S. CHENG, M.D.; BAY CLINIC, INC.; and
MANGUESH G. VELINGKER, M.D., Defendants~Appellees
APPEAL FROM THE FIFTH CIRCUIT COURT
(CIV. NO. 02-1-0119)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the statements supporting and contesting
jurisdiction and the record, it appears that the circuit court's
January 14, 2005 order granting summary judgment as to all claims
was not reduced to a separate judgment, as required by HRCP 58.
See Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115,
969 P.2d 1334 (1994) (an order that resolves claims in a circuit
court civil case is not appealable unless the order is reduced to
separate judgment pursuant to HRCP 58). The premature appeal
provision of HRAP 4(a)(2) does not apply to appellant's February
9, 2005 notice of appeal inasmuch as no separate judgment was
entered by the time the record for Civil No. 02-1-0119 was filed
in the supreme court on April 11, 2005. See Jenkins, 76 Hawai'i
at 120, 869 P.2d at 1339 ("An appeal from an order that is not
reduced to a judgment in favor of or against the party by the
time the record is filed in the supreme court will be
gat
*** NOT FOR PUBLICATION ***
dismissed.”). Thus, this appeal is premature and we lack
jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, May 9, 2005.
Becsetes Crcureuey ante,
aoe
Gace nr
|
7aa9f228-c9c6-41da-a12b-c32121dfd2dd | State v. Hodges | hawaii | Hawaii Supreme Court | s** NOT FOR PUBLICATION ***
no. 26749
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
S002
STATE OF HAWAI'I, Plaintiff-Appellee, 5)
HAROLD TOMLIN HODGES, Defendant-Appellant gel
NEG IY LZ ANH!
APPEAL FROM THE SECOND CIRCUIT COURT
(CR. NO. 04-1-0064(1))
w u yRDEI
(py: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
‘The appellant Harold Tomlin Hodges appeals fron the
guly 7, 2004 judgment of the circuit court of the second circuit,
the Honorable Joel £. August presiding, convicting him of and
sentencing him for the following offenses: 1) promoting @
controlled substance in, on, or near schools, school vehicles, or
public parks (Count I), in violation of Hawaii Revised Statutes
(uRs) § 712-1249.6(2) (b) (Supp. 2003); 2) prohibited acts related
to drug paraphernalia (Count II), in violation of HRS § 239-
43.5(a) (1993); and 3) promoting a detrimental drug in the third
degree, in violation of HRS § 712-1249 (1993).
on appeal, Hodges argues that the circuit court erred
by 1) instructing the jury that the criminal state of mind
required for a finding of guilt under HRS § 712-1249.6 vas
“reckless disregard,” when the statute clearly states that the
Defendant must act “knowingly,” and 2) finding that he knowingly
distributed or possessed with intent to distribute a controlled
substance, in any amount, within 750 feet of real property
comprising a public or private elementary or secondary school.
Hodges argues that there was insufficient evidence to support his
aa
*** NOT FOR PUBLICATION
conviction for the offense of promoting a controlled substance
near a school, as charged in Count I. Hodges does not challenge
his convictions on Counts II and IIT.
The State of Hawai'i (hereinafter, “the prosecution”:
concedes that the circuit court committed plain error by 1)
erroneously instructing the jury that the requisite state of mind
for the attendant circumstance for promoting a controlled
substance near a school was either “knowing” or “reckless,” and
2) by denying Hodges’s motion for judgment of acquittal because
there was insufficient evidence to support a conviction for the
charge.
We conclude that the prosecution's confession of error
is supported by the record and is well-founded in law. See State
vs Wasson, 76 Hawai'i 415, 418, 879 2.24 520, 523 (1994);
Territory v. Kogami, 37 Haw, 174, 175 (1945). Therefore,
IT 18 HEREBY ORDERED that the circuit court’s judgment
of conviction in Count I for promoting a controlled substance
near a school in violation of HRS § 712-1249.6 is reversed. The
circuit court’s judgment with respect to Counts It and IIT is
affimed.
DATE!
on the briefs:
Kellen Kenji Akamu, Ee - :
deputy public defender,
for the appellant Resse CON eta Ce
Harold Tomlin Hodges
prosecuting attorney, Wane Sus th
for the plaintiff-appellee
State of Hawai'i
Honolulu, Hawai'i, May 27, 2005.
|
0dbd23cf-83ea-4fd4-b809-953b005461f6 | King v. Dept. of Human Services | hawaii | Hawaii Supreme Court |
IBRARY
*** NOT FOR PUBLICATION ***
No, 25128
IN THE SUPREME COURT OF THE STATE OF HAWAT!_
vi ua
ANNIE KING, Appellant,
80:6 HY
DEPARTMENT OF HUMAN SERVICES and LILLIAN B, KOLLER,*
DIRECTOR OF HUMAN SERVICES in her official capacity,
Appellees
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 02-1-0005)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Appellant Annie King appeals from the May 14, 2002
judgment of the Circuit Court of che Third Circuit, the Honorable
Greg K, Nakamura presiding, affirming an administrative hearing
decision of the Department of Hunan Services (DHS) denying King’s
application for general assistance benefits, on appeal, King
contends that the circuit court erred in: (1) finding that DHS
aid not have a policy favoring the opinion of the examining
physician over that of the treating physicians; (2) failing to
+ Gusan Chandler, former director of the Department of iinan Services,
has been substituted with Lillian 5. Koller, the current director, pursuant to
Mavai't Rules of Appellate Procedure Rule 43(¢) (2000)
*** NOT FOR PUBLICATION ***
apply the “treating doctor rule” in determining whether
substantial evidence supported the hearing officer’s decieion;
and (3) finding that the hearing officer's decision was supported
by the record.
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the argunents presented, we hold a
follows: (1) although the hearing officer’s findings regarding
DHS’s policy favoring the opinion of the examining physician was
not clearly erroneous, based on the record, the circuit court aia
not err in finding that the hearing officer did not give a
presumption to the DHS examiner’s conclusions over those of the
treating physicians; (2) King fails to denonstrate chat the
federal courts’ rulings regarding benefits under the Social
Security Act and the Enployee Retirement Incone Security Act of
1974 are applicable to the determination of eligibility for
benefits under Hawai'i Revised Statutes § 346-1 (Supp. 2001);
(3) the hearing officer’s statenent regarding the possibility of
malingering is not a finding of ultimate fact, see In ze Kauai
blec, Div. of Citizens Urility co., 60 Haw. 166, 184, 590 P.2d
524, 537 (1978); and (4) the report of Bruce Hansen, Ph.D. and
the testinony of Wallace Chun, N.D. constitute sufficient
evidence to support the hearing officer's decision. Therefore,
*** NOT FOR PUBLICATION ***
IT IS HEREBY ORDERED that the May 14, 2002 judgment of
the Circuit Court of the Third Circuit is affirmed.
DATED: Honolulu, Hawai'i, May 11, 2005.
on the briefs: Gyro
David Kimo Frankel, for LERHoame~
appellant
(withdrew 11/27/04) Bien Dee ain
Heidi M. Rian and
Wendy 3. Ucsuni, e mA
Deputy Attorneys General,
for appellees Yume aig Or
Counsel of record:
Gary Y. Murai, for
appellant
(appeared 11/17/04)
No. 25128 King v. Dep't of Human Servs. -- Summary
‘sposition Order
-3-
|
09126156-badc-4869-b545-483cf59634a7 | State v. Gomes. Concurring Opinion by J. Acoba, with whom J. Duffy joins [pdf]. ICA Opinion, filed 03/23/2005 [pdf], 107 Haw. 253. Concurring Opinion by J. Acoba, with whom J. Duffy joins [pdf]. S.Ct. Order Granting Application for Writ of Certiorari, filed 04/12/2005 [pdf], 107 Haw. 84. S.Ct. Order Denying Motion for Reconsideration, filed 06/22/2005 [pdf], 107 Haw. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
-— 000 ==
STATE OF HAWAI'I, gi =
Plaintiff-Appellee-Respondent, Ais
z5I o -
. eF i
Sie 2
RONALD GOMES, 3B e =f
Defendant-Appellant-Petitioner. 3] =
a
No. 26466
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 91-0374(2))
MAY 26, 2005
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.; AND ACOBA, J.,
CONCURRING SEPARATELY, WITH WHOM DUFFY, J., JOINS
OPINION OF THE COURT BY LEVINSON, J.
On April 6, 2005, the defendant~appellant-petitioner
Ronald Gomes filed an application for a writ of certiorari,
requesting that we review the published opinion of the
filed on March 23, 2005 (the
Intermediate Court of Appeals (ICA)
ICA’s opinion), affirming the March 8, 2004 order of the circuit
court of the second circuit, the Honorable Shackley F. Raffetto
presiding, denying Gones’s petition to correct illegally imposed
sentence and conviction, pursuant to Hawai'i Rules of Penal
Procedure (HRPP) Rule 35.
In his application, Gomes merely states that he “hereby
seeks to raise these issues in the Supreme Court of the State of
Hawaii.”
‘8% FOR PUBLICATION ***
on April 12, 2005, we granted certiorari solely to
clarify the issue of whether relief under Apprendi v, New Jersev,
530 U.S. 466 (2000), may be afforded on collateral attack. In
accordance with the decision of the United States Court of
Appeals for the Ninth Circuit in United States v. Sanchez-
Cervantes, 282 F.3d 664 (9" Cir. 2002), we conclude that it may
not. We express no opinion at this time, however, regarding the
applicability of the United States Supreme Court’s decision in
United States vs Booker, 125 S.Ct. 738 (2005), to this court's
analysis of the viability of our statutory extended term
sentencing schene, as elucidated in State v. Kaua, 102 Hawai'i 1,
72 P.3d 473 (2003), and State v. Rivera, 106 Hawai'i 146, 102
P.3d 1044 (2004). Accordingly, we hold that the ICA erred in
reaching the merits of Gomes’s Apprendi claim, but we
nevertheless affirm the ICA’s published opinion for the reasons
stated in this opinion.
1. BACKGROUND
As a preliminary matter, we adopt the following
unchallenged factual background, in abbreviated form, as set
forth in the ICA’s opinion:
Gomes was charged by complaint [in Cr. No. 91-0374 (21)
with Sonus] Assault. an the First Degree, Hawaii Revised
Statutes (HRS) § 707-730 (Supp. 1992), and Murder in the
Second Degree, HRS § 707-7015 (Supp. 1992), allegedly
Committed on {November 24, 1991], on the island of Maul. At
the tine of the alleged offense, ‘Gomes was in the company of
Lucie Gonzalez (Gonzalez) and James Houdasheldt
(Woudashelde
"After jaitially pleading not guilty, Gomes changed his
plea on the murder charge to pale contendere, or “no
Eontest," on June 26, 1992.” In exchange for the change of
plea, the prosecution dropped the sexual assault charge.
2
‘**4 FOR PUBLICATION
State v. Gomes, 79 Hawai'i 32, 33, 897 P.2a 959, 960 (1995)
(footnotes omitted). Ultimately, the suprene court...»
vacate(d] the judgnent of conviction [and] remand[ed} to’ the
cirevit court for issuance of an order granting Gomes’ s HRPE
Rule 32(d) notion to withdraw his pole contendere pleal.]
Gongs, 79 Hawai'i at 40, 697 P.2d at 967,
‘on remand, and purauant to « Jury's verdict, the
circuit court convicted Gomes of the charged offence of
ymual assault in the first degree and the included offense
Of reckless manslaughter. At the July 2, 1996 sentencing
hearing, the circuit court first entertained the state's
Sune 27, 1996 motion for extended terms of imprisonment, in
Which the State had alleged that Gones was 2 "multiple
Offender” under HRS § 706-662(4) (a) (Supp. 1992)... ~The
Gizcuit court noted that the State’s motion was predicated
tupon the proposition that Gomes was a “multiple offender.”
‘The circuit court commented, "He is being sentenced for two
or more felonies. No question about that”... (T]he
Circuit court granted the State's motion, and sentence:
Gones accordingly to concurrent, extended terns of life with
the possibility of parole for the sexual assault and twenty
years for the manelaughter.
On direct appeal (S.C. No. 20010) from the July 5,
1996 judgment of Conviction and sentence, . - . (E]pe
fopreme court(,] .., via summary disposition order, . .
affirmed. State J, Gomes, to. 20010, 90 Hawai's 472, 979
P.24 66 (Haw. fled October 7, 1998)’ (S00) - .
‘On July 7, 1995, Gomes,'. . . Dio aay initiated 8.7.7.
No. 99-0008(2), with a motion to’ correct or reduce sentence
brought “pursuant to {HRPP] Rule 35." . . . On July 30,
1989, the circuit court summarily denied Gomes’ s motion{.]
Continuing pre sel,] - . - (Gomes) appealed) (8.c.
No. 22774). . the cireust court's denial of his motion to
correct or feduce sentence(.) .
‘The suprene court sumarily affirmed the circuit
court's denial of Gones’s motion to correct or reduce:
Sentence, concluding that "(1) the circuit court did not err
in allowing Gomes to be convicted of both sexual assault in
the first degree in viclation of HRS § 707-730 and
manslaughter in vielatson of HRS § 707-702; ané (2) the
Gitcule court did not err fo imposing extended terns of
Smprisonment pursuant to HRS § 706-6824) -”
Nor 22974, 99 hawal's 352, 3 P+34 50 (hw. £Lded June Zr
2060) (S00).
On October 5, 2000, Gomes, still pio ae, filed a
petition for writ of habeas compua in the federal district
Court (Civil No. 00-00652 SoM-BMK)...- Gomes argued for
the fixst time that hie prison terns were unconstitutionally
extended because the factual bases therefor had not been
Gharged and had been found by o judge instead of jury,
citing the recent Apprendi: v/ New Jersey, 520 U.8. ¢66,' 120
S.ct..2348, 147 L.fa2d 435 (2000), State vs Tafova, 91
Hawai" 261, 982 #.24 890 (1999), ‘and other elated cases.
(on March 21, 2003, the federal district court denied
Gomes’ s habsas coimus petition{,) . . . conelud{ing) that
*** FOR PUBLICATION ***
“che Double Jeopardy Clause does not bar Gones’ convictions
for mansiaughter and sexual assavlt(,)" . . + {and holding]
Chet Gones's extended terms were “not illegal.”. . . [The
federal district court explained:
comes! Auarendi/Tafova argument was not raised in his
Sppeel to the Hawaii Suprene Court. As the F & R [the
Ragistrate’e findings and recommendation) noted, Gones
Mas required fo exhaust his state court remedies. See
Beursic, § 2254(b) (1). After a de novo review of the
Fecord, the court agrees with the F & R that Gomes did
fot exhaust his administrative renedies as to his
Roprendi/tateva argument. Gomes has not demonstrated
Bhat he cannot bring (an RPP) Rule 40 motion in the
Reweil state courte: Accordingly, and for the reasons
Set forth in the Fé R, which the court adopts, the
Court dismisses Gomes” Aporendi/Tafava argunent based
Sauhis failure to exhaust his stare judicial remedies.
on April 21, 2003, Gomes filed a "Notice of
Corticrari= to the Onited States Court of Appeals for the
Ninth cireust. . +. On July 28, 2003, the Ninth Circuit
Feplied: “the request fora certificate of appealability is
Genieds gee 26 U.S.C. $ 2253(e) (2)-"
fon becenber 22, 2003, Gomes, continuing pro ae, filed
the petition underlying this appesl, a “Petition te Correct
Illegally imposed Sentence and Conviction Pursuant to Hawais
Appellate [sic] Frocedire Rule 35."()] Gomes eeserted that
ME"state and federal constitutional rights to due process
and against double jeopardy had been vielated, “when
petitioner convicted [sic] of Sexual Assault in the First
Begree after these charges had been dropped in an earlier
ples sgreenent.” “Furthermore,” Goses averred, "the Court
Greed when sentencing petitioner to an Extended Term of
{hearceratson in bothe [sic] the conviction of Sexual
Assault in the First Degree, as well as the conviction of
+ On Decenber 22, 2003, when Gones filed his HRFP Rule 35 notion,
Rule 35 hed been amended s¢ of July 1, 2003 to provide, inter alia, thet “ial
Botion mace by a defendant to correct’ an illegal sentence sore than 90 days
Titer the sentence is imposed shall be made pursuant to Rule 40 of these
Silos." “WAP Rule 40(a) + a2 amended effective July 1, 2003, provides in
relevant pert
a | At ony time but not prior to final judgment, any
person nay Seek’ relief under the procedure set forth in this’ rule
From the judgnent of conviction, on the following grounds:
Gi "fhat the juagnent wae obtained of sentence imposed in
wiolation of the constitution Of the United States or of the State
oe Hawai ted
isi (.'.. except for a claim of i21ega1 sentence, an issue
is waived if the petitioner knowingly and understandingly failed
25 Thiue it ang it could have been reised before the trial, at the
Efialy en eppeal, (or) ins habeas corpus proceeding . »
‘
FOR PUBLICATION *##
Manslaughter. Petitioner wae not a repeat offender which
could have given way to this sentence.” -
On March €, 2004, the circuit court denied Gomes’ s
petition(.] .. : Gomes filed his notice of this appeal on
Maren 22, 2004
ICA's opinion, slip op. at 2-10 (footnotes and sone quotation
signals omitted) (some brackets added and some in original).
On appeal, Gomes argued, inter alia, that he had been
unconstitutionally sentenced to an extended term of imprisonment
by a judge rather than a jury. ICA's opinion, slip. op. at 10.
‘The ICA resolved Gones’s argument as follows:
« « Gones essentially repeats his
arguments, “but here enhances in nit estimation by cases
Gecided since his weit of habeas cormus vas denied,
Sneluding Elakely ¥. Washington, 124°8.ce. 2531, 237
Cl * gine puprendi/tafova arguments (Gomes) makes on
appeal have since Deen foreciosed. Comare US. v. Sookex,
125'S.ce. 738, 749-80" (2008):
on the prenise,
‘that. the relevant
‘mandatory and impose
Binding requirements on ail sentencing judge:
If the (Federal Sentencing] Guidelines as currently
written could be read as nerely advisory provisions that
Feconended, rather than required, the selection of
particular sentences in response to differing sets of facts,
Their use would not implicate the Sixth Auenanent. we heve
ever doubted the authority of a judge to exercise broad
Giseretion in inposing a sentence within a statutory range.
See Apprendi, 530 U.S. at 481, 120°S.Ct. 2348, [147 L.Ed.24
435); Milliane v. Now york, 337 0.8. 24i, 246, 69 '8.cc.
1078, $3 Led. i537 (1943) Indeed, everyone agrees that
the Constitutional issues presented’ by these cases would
have been avoided entirely if Congress had eaitted fron the
[Sentencing Reform Act of 1964] the provisions that make the
Guidelines binding on district judges... For whens
Exiai Judge exercises his discretion to select s specific
Sentence within s defined Fange, the defendant has’ no right
toa jury determination of tne facts that the judge dens
Felevant.
ith HRS’ 706-6624) (a)
A convicted defendant may be subject to an
gxtended term of imprisonment under section
06-661, if the convicted defendant satisfies
one or nore of the following eriteri
‘#4 FOR PUBLICATION *#*
(4) The defendant is a multiple offender whose
ceininal actions were #0 extensive that a sentence of
SSprisonment for an extended term is necessary for
protection of the public. The court shall not make
Enis finding unles
(a) The defendant is being sentenced for
two or nore felonies oF is already under
Sentence of imprisonment for felony
(esphesie supplied.) ee also
Jey, 162-63, 102 P.3d 104, 1060-6
202" nawai's ‘1, 12-13, 72 P.3d 473, 7 Stake te
arvana, 10% Hawai'i $7,121, 63" P.34 405, 419 (app. 2002).
ICA's opinion, slip. op. at 11-14 (some ellipses points added and
106 Hawas't
some in original) (emphasis in original). On April 6, 2005,
Gomes timely filed an application for a writ of certiorari. On
April 12, 2005, we granted certiorari.
II. STANDARD OF REVIEW
Appeals from the ICA are governed by HRS § 602-59(b)
(1993) ) whieh prescribes that an
application for writ of certiorari shall tersely state
EEigrounde which mist include (1) grave errors of law
Gr cf fect, oF (2) ebvicus inconsistencies in the
Sectsion of the intermediate appellate court with thet
Of the suprene court, federal decisions, or ite own
Sécieion, and the magnitude of such errors or
Sheonsistencies dictating the need fer further appeal.
Ince Jane Doe, Born on June 20, 1995, 95 Hawai'i 183, 189, 20
P.3d 616, 622 (2001).
IIT. Discussion
At the time of Gomes’s trial and sentencing, judge-
imposed extended term sentencing had not yet been called into
question by the United States Supreme Court's decision in
Apprendi. Gomes filed a petition for a writ of habeas corpus in
the United States District Court for the District of Hawai‘
shortly after the Supreme Court ruled in Apprendi that “[o]ther
than the fact of a prior conviction, any fact that increases the
6
‘4% FOR PUBLICATION *#*
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. Following the Hawai'i federal district court's
denial of Gones’s habeas corpus petition for failure to raise his
Apprendi/Tatova argument in his appeal to this court, Gomes filed
his second HRPP Rule 35 motion to correct an illegally imposed
sentence in the Hawai'i circuit court. The circuit court denied
Gomes's HRPP Rule 35 motion on the merits, and on appeal, the ICA
affirmed the circuit court’s denial of Gomes’s motion, also on
the merits. Before we can reach the merits of Gomes’s claim, we
must determine whether the ruling in Apprendi applies
retroactively to petitions collaterally attacking previously-
imposed sentences. In our view, it does not. Accordingly, we
hold that the ICA erred in reaching the merits of Gomes’s appeal
from the circuit court’s denial of his HRPP Rule 35 motion, but
we nonetheless affirm the ICA’s opinion on the grounds stated
herein.?
‘The Ninth Circuit held in Sanchez-Cervantes that the
new rule of criminal procedure announced in Apprendi does not
apply retroactively on initial collateral review. 282 F.3d at
671. The United States District Court for the District of
Hawai'i observed in Kaua v, Frank that review of Kaua’s habeas
sorpus petition was not a prohibited retroactive application of
Appiendi. “Because Apprendi’s new rule was announced before
Kaua’s state court judgment became final, the court is not faced
2 for an analysis of the impact of Apprendi and ite progeny on our
extended term sentencing achene, ase y 202 Hawai'i 1, 72 P.3d 473
(2003), and state vo Rivers, 106 Hawai 14¢, 102 F.3d 1G¢4 (2008)
7
‘#* FOR PUBLICATION ***
with the issue of whether Apprendi applies to 2 collateral review
of Kaua’s judgment. See Teague v. Lane, 489 U.S. 288, 310-13,
109 S.ct. 1060, 103 L.£d.2d 334 (1989)." Kava v. Frank, 350
F.Supp.2d 648, 853 n.1 (D. Haw. 2004). “While retroactive
application of Apprendi to initial petitions for collateral
review is barred, see United States v, Sanchez-Cervantes, 282
F.3d 664, 667 (9 Cir. 2002), that bar does not apply here.
[da at 653.
We note that this court addressed the merits of Kaua’s
Apprendi claim in his appeal of the denial of his HREP Rule 35
motion in State v. Kava, 102 Hawai'i at 13, 72 P.3d at 485. For
clarification, we emphasize that we reached the merits of Kaua’s
Apprendi claim because Apprendi was decided while Kaua’s direct
appeal was pending before this court. Therefore, because Kaua’s
appeal was not final prior to the announcement of the rule in
Apoxendi, our Apprendi analysis in State v. Kaua did not
constitute a retroactive analysis of Apprendi applicability on
collateral attack.
wapplication of constitutional rules not in existence
at the time a conviction became final seriously undermines the
principle of finality which is essential to the operation of our
criminal justice system.” Teague, 489 U.S. at 309, 109 S.Ct.
1060. We now adopt the reasoning of the Ninth Circuit in
Sanchez-Cervantes, which evaluated the propriety of Apprendi’s
retroactive application within the framework of the Supreme
court’s decision in Teague.
in Teague vs Lane, the Supreme Court held that_new
constitutional Tulse of criminal procedure that had not been
Ghnounced at the tine the defendant's conviction became
a
#** FOR PUBLICATION *
troactively on collateral review
sxceptions. These
tain kinds of
final cannot be applied
unless they {it within one of two nafs
‘exceptions exist if a new rule (1) “pla:
Brinary private individual conduct beyond the power of the
Griminal law-making authority to proseribe,” oF (2)
Spequires the coservance of those procedures that
implicit in the concept of ordered liberty.” Thus,
to apply the rule of Apprendi retroactively, we must
determine that Apprendi is a new rule of criminal procedure
that fits into one of Teague’ s exceptions:
Sanchez-Cervantes, 282 F.3d at 667. The Ninth Circuit held that
because “Apprendi neither decriminalized drug possession or drug
in’ ode:
conspiracies nor placed such conduct beyond the scope of the
state’s authority to proscribe[,] . . . the first [Teaguel
exception does not apply here.” Id, at 668. The Ninth Circuit
further held that Apprendi is not a “watershed rule(] of criminal
procedure” enabling it to be applied retroactively under Teaque's
second exception. Id. Inasmuch as “[t]he application of
Apprendi only affects the enhancement of a defendant's sentence
once he or she has already been convicted beyond a reasonable
doubt [,]” id. at 671, it does not fit within Teague’s limited
exceptions to the bar against retroactive application of new
constitutional rules of criminal procedure.
Moreover, the United States Courts of Appeal that have
addressed the issue have likewise held that Apprendi does not
apply retroactively on collateral attack. See In re Tatum, 233
F.3d 857, 858 (Sth Cir, 2000) (holding that the Supreme Court has
not expressly stated that the holding of Apprendi may be applied
retroactively on collateral review and denying defendant’s motion
for leave to file a “successive” motion to vacate sentence) ;
Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000) (“If the
Supreme Court ultimately declares that Apprendi applies
#4 POR PUBLICATION ***
retroactively on collateral attack, we will authorize successive
collateral review of cases to which Apprendi applies. Until then
prisoners should hold their horses and stop wasting everyone’ s
Sepulveda v. United States, 330
F.3d 55, 63 (1st Cir, 2003) ("We hold, without serious question,
time with futile applications.”
that Apprendi prescribes a new rule of criminal procedure, and
that Teague does not permit inferior federal courts to apply the
Apprendi rule retroactively to cases on collateral review.”);
United States v. Sanders, 247 F.3d 139, 149-81 (4th Cir. 2001),
cert. denied, $34 U.S. 1032 (2001) (holding that Apprendi rule
does not apply retroactively on collateral review); United States
vs Moss, 252 F.3d 993, 997 (8th Cir. 2001), cert, denied, 534
U.S. 1097 (2002) (*[W]e hold today that Apprendi is not of
watershed magnitude and that Teague bars petitioners from raising
Apprendi claims on collateral review.”); McCov v, United States,
266 F.3d 1245, 1258 (11th Cir. 2001), cert. denied, 536 U.S. 906
(2002) (holding, inter alia, that defendant’s Apprendi claim is
barred by Teague’s non-retroactivity standard) .
In the present matter, Gones was sentenced and his
direct appeal became final years before the announcement of the
Supreme Court's rule in Apprendi. Therefore, by any construction
of Apprendi, Gomes’s sentence could not have been illegal at the
time the circuit court imposed it. Hence, there was no merit to
Gomes’s subsequent HRPP Rule 35 claim based on Apprendi, Apprendi
not having established a new rule of criminal procedure that fits
within one of Teague’s exceptions. That being the case, we hold
that the Apprendi rule, however it may be construed, is not
10
‘** FOR PUBLICATION *#*
controlling retroactively on collateral attack. Thus, the ICA
should not have reached the merits of Gomes’s
Apprendi/Tafoya claim.
TV. CONCLUSION
For the foregoing reasons, we hold that Apprendi does
not apply retroactively in this jurisdiction to cases on
collateral attack. Accordingly, we affirm the ICA’s opinion,
although on the grounds stated in this opinion. Me also affirm
the ICA's opinion with respect to the non-Apprendi-related points
of error that Gomes raised in his appeal.
on the writ: Li
Ronald Gones, “Baca Plalennn
bro 8
Receetes C1 reece yas
a
|
f94db158-e82f-4bbb-8685-f0ffde412a39 | Mikelson v. United Services Automobile Association. S.Ct. Opinion Regarding Request for Attorneys' Fees and Costs, filed 09/26/2005 [pdf], 108 Haw. 358. | hawaii | Hawaii Supreme Court | uawe
‘***FOR PUBLICATION*#*
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
=--000---
MATHEW S. MIKELSON, Plaintiff-Appell
UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant-Appellant
and
JOHN DOES 1-25; JANE DOES 1-25; DOE CORPORATIONS 1-25;
DOE PARTNERSHIPS 1-25; and DOE GOVERNMENTAL
ENTITIES 1-25, Defendants
No. 25217
21 AWSOME
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 99-1856)
2
2
MAY 12, 2005
MOON, C.J., LEVINSON, NAKAYAMA, AND ACOBA, JJ.,
AND CIRCUIT JUDGE WONG, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY ACOBA, J.
Defendant-Appellant United Services Automobile
Association (Defendant) appeals from the June 19, 2002 judgment
of the circuit court of the first circuit (the court)* in favor
of Plaintif¢-Appellee Mathew S, Mikelson (Plaintiff) relating to
underinsured motorist benefits. By this appeal, Defendant
challenges the court’s order denying Defendant’s motion for order
The Honorable R. Mark Browning presided.
++*FOR PUBLICATION*#*
or declaration regarding choice of law, filed on April 30, 2001,
and the court’s findings of fact, conclusions of law, and order,
filed on July 16, 2001.
For the reasons discussed herein, we hold that the
court correctly (1) applied Hawai'i law on the choice of law
question, (2) determined that Plaintiff was a resident of the
named insured’s household and, therefore, a covered person under
the subject insurance policy for underinsured motorist benefits
purposes, and (3) decided that the insurance policy exclusions
inapplicable. Accordingly, the June 19, 2002 judgment is
affirmed.
I.
Larry D. Mikelson (Father), father of Plaintiff,
entered into an automobile insurance plan (the Policy) in
california with Defendant. The Policy was effective from October
23, 1998 to April 23, 1999. Listed as “operators” under the
Policy were Father, Ian A. Mikelson, and Plaintiff. It is not
disputed that Father is identified as a naned insured under the
Policy. three vehicles are listed in the Policy as being
“garaged” in Redondo Beach, California.
on January 17, 1999, Plaintiff was riding a motorcycle
on Kamehameha Highway. He was carrying @ passenger on the
motorcycle and had no license or permit to operate the vehicle at
the time of the accident, As Plaintiff was approsching the
intersection of Waimea Seach Park, @ motor vehicle operated by a
Ms. Larissa Madison (Madison) made a left turn into the Park, in
2
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front of Plaintiff, This caused Plaintiff to collide with
Madison’s vehicle and Plaintiff fell onto the roadway, suffering
injuries. The motorcycle was not insured under any policy
Plaintiff had with Defendant. As a result of the accident,
Within less than
Plaintiff! required surgery on his right kn
thirty days, Plaintife incurred more than $17,500 in medical and
ambulance expenses.
At the time of the accident, Plaintiff was a full-time
student at the University of Hawai'i - est Oahu (West Oahu), and
Lived in the City and County of Honolulu. Plaintiff’s first
semester at West Oahu commenced in January 1999, ‘The majority of
Plaintife's personal belongings remained at Father’s home in
california. The only personal belongings Plaintiff brought with
him to Hawas‘s were clothing and his surfboard. Plaintiff
possessed a California driver’s license at the time of the
accident. The permanent address Listed on the license was his
Father's address in Redondo Beach, California. Plaintiff lived
in California during his recovery from his surgery, but he
intended to return to Hawai'i in order to continue his education
An the fall semester of 1999.
Plaintiff was not employed before or at the time of the
accident and, as a result, relied completely on Father for
financial support. This support included payment of Plaintiff's
educational and travel expenses. Plaintiff was named as a
dependent on Father’s Internal Revenue Service income tax returns
for the years 1998 and 1999.
**4FOR PUBLICATION*#*
m.
on April 20, 1999, Plaintiff filed a civil suit against
Madison for the injuries he sustained. Plaintiff obtained
$20,000 pursuant to a settlement, release, and indemnity
agreement that was executed on June 6, 1999. This $20,000 amount
was the limit of liability under all applicable liability bonds
or policies covering Madison. The $20,000 was not sufficient to
cover Plaintiff’s medical expenses.
As a result, Father attempted to obtain benefits under
Defendant's Policy. ‘The Folicy provides for underinsured
motorist coverage for a “covered person” under the “UNINSURED
MOTORISTS COVERAGE” section of the Policy. The amount of Bodily
Injury Uninsured Motorists Coverage under the Policy is $300,000.
A “covered person” is defined as a named insured or a family
member of a named insured. A “family member" is defined as a
person related to a naned insured “by blood, marriage or adoption
who is a resident of [the named insured’s) household.” An
“underinsured motor vehicle” is defined as a motor vehicle that
is insured, but as to which the amount of such insurance “is less
than the limit of liability for Bodily Injury Uninsured Motorists
Coverage” that is applicable to a covered auto. A “covered auto”
is defined in relevant part as any vehicle shown in the
Declarations. There is neither a choice of law provision within
‘***F0R PUBLICATION*#*
the Policy? nor a clause defining “resident of (the named
insureds} household.”
According to the “GENERAL PROVISIONS” section of the
Policy, the “{Plolicy applies only to accidents and losses which
(2) {dJuring the policy period as shown in the
Declarations; and (2) [w]ithin the policy territory.” The
“policy territory” encompasses “(t]he United States of Anerica,
ite territories or possessions{.1”
ut.
The underinsured motorist coverage provision states, in
relevant part, that “Bodily Injury Uninsured Motorists Coverage
shall not apply until the limits of liability under all
applicable Liability bonds or policies have been exhausted by
payment of judgments or settlements, and proof of such is
submitted to us.” According to the court's findings of fact,
Plaintiff “exhausted” the limits of liability and has submitted
reasonable proof to Defendant showing as much.
The Folicy also contains the following contested
exclusions:
1. UNINSURED MOTORISTS COVERAGE
+ afendant asserts “[t]he (Policy was issued pursuant to the laws
of California,” which presunably alludes to the existence of a cholee of 1
provision within the Policy. This assertion, however, is not meritorious for
two reasons. First, Defendant ambiguously cites to the entire Policy as
support of ite aesertion. Second, during discovery Defendant was asked
through written interrogatories to “[e)xplain why the Policy does not contain
a choice of Law provision.” Defendant first cbjected to the question on the
Grounds of it being, inter alia, “vague() (end) ambiguous,” and then said
Rielitnout waiving the above Objections, the policy speaks for itself." In
Light of Defendant's failure fo point to a choice of law provision, it is
apparent that the Policy lacks auch a provision.
5
FOR PUBLICATION***
oy
With respect to damages for bodily injury caused by an
Underinsured motor vehicle, Bodily Injury Uninsured
Motorists Coverage shall not apply until the limits of
Yability under sil applicable Liability bonds or policies
hove been exhausted by payment of judgments or settlements,
fand proof of such is submitted to Us.
EXCLUSIONS
R. Me do not provide Uninsured Motorists Coverage for
Property dinage of odity injury soseained by any person:
vaniel rm Gesber shen ie not
This
includes @ trailer of any type Used with that vehicle.
Xa used in this exclusion, "motor vehicle” means eny
Self-propelled venicle.
than 4 heels HBL ed
xelosie: ins act
st sr
‘the person is entitled to do 30:
G.” We do not provide Uninsured or Underinsured Motorists
Coverage for punitive oF exemplary a
ee
(Emphases added.)
on February 4, 1999, Defendant’s representative sent a
letter to (Father) denying coverage for Plaintiff's injuries
because “the motorcycle does not qualify as a ‘covered auto’ in
the Policy. On April 2, 1999, Defendant’ s Claims Manager
confirmed the denial of coverage through a subsequent letter.
on May 7, 1999, Plaintiff filed a complaint for
declaratory relief against Defendant seeking compensatory damages
under the Policy for Plaintiff's injuries (Civ. No. 99-1856-05).
on July 26, 1999, Plaintiff filed @ motion for summary judgment
which was denied on October 19, 1999.
on February 6, 2001, Defendant filed a motion
requesting the court to apply California law rather than Hawai'i
FOR PUBLICATION*##
law to the case. On April 12, 2001, a bench trial was held to
determine the sole issue of whether Plaintiff was entitled to
receive underinsured motorist benefits from Defendant. On April
30, 2001, the court issued a written order declaring it would
apply Hawai's law,
on July 16, 2001, the court issued its findings of
fact (findings) and conclusions of law (conclusions), and order.
‘The court concluded, inter alia, that: (1) Plaintifé w
“resident” of Father’s household at the time of the accident
because (a) the Policy is ambiguous in its definition of the term
“resident” and (b) “actual residence under a conmon roof with the
named insured is not an absolute requirement to be considered
‘zesident’ of the household”; and (2) inasmuch as “the Policy
purports to create two distinct classes of ‘covered persons’:
(a) the named insured and his or her family members; and (b) any
other person “occupying” the “covered auto[,]” Plaintiff ‘was not
required to be occupying or operating a ‘covered auto!” in order
to “collect uninsured benefits.”
‘The court also determined that three of the Policy's
exclusions were inapplicable. First, the court concluded that
the “less than four wheels exclusion” was inapplicable because
(2) such exclusion was “void as against public policy” to the
extent that the exclusion “attempts to Limit [Plaintiff’s]
entitlement to (underinsured motorist] coverage” and is
inconsistent with Dines v. Pac, Ing. Cou, Ltd., 78 Hawai'i 325,
‘***F0R PUBLICATION®#*
ET
93 P.2d 176 (1995); and (2) the “exclusion of only [uninsured
motorist] coverage, but not [underinsured motorist] coverage in
{efendant’s) less than four wheels exclusion . . . is either (a)
‘a clear indication that [the exclusion] applies to [uninsured],
but not [underinsured motorist] coverage or (b) creates an
ambiguity, which requires that the Policy be construed against
(Defendant) and resolved in [Plaintiff's] favor, and therefore
applies to {an uninsured motorist], but not (underinsured
motorist] coverage.”
Second, the court decided that the “reasonable belief
exclusion” was inapplicable because (1) the exclusionary language
is “susceptible of at least three interpretations” and such
ambiguity must be “strictly construed against [Defendant] ":
(2) Plaintitt’s “alleged traffic violations are irrelevant to the
determination of eligibility for (underinsured motorist] coverage
under the Policy” as “there is no indication that the .
Legislature intended the denial of [underinsured motorist]
benefits as punishnent for traffic violations”; (3) the exclusion
was “unenforceable as against public policy” inasmuch as
Defendant “could and should have clearly communicated .
through precise and unambiguous language” its “desire(] to
exclude coverage for any person who was not legally operating 2
vehicle under Hawaii law” if Defendant intended this
“iimitations” and (4) Defendant's “exclusion of only [uninsured]
coverage but not [underinsured motorist] coverage in (the]
reasonable belief exclusion. . . is either (a) a clt
“FOR PUBLICATION*#*
—_—SSSSSSSSSSSSSSSsSsSs
indication that [the exclusion] applies to [uninsured] but not
[underinsured motorist] coverage, or (b) creates an ambiguity,
which requires that the Policy be construed against [Defendant]
and resolved in [Plaintiff’s] favor, and therefore the exclusion
applies to uninsured}, but not [underinsured motorist]
coverage.”
‘Third, the court concluded that the “owned vehicle”
exclusion was void because (1) such exclusions are “invalidated
where an injured individual solely seeks [uninsured] or
(underinsured motorist] coverage and not any liability benefits
as an insured claimant under a personal or family member's
policy”; (2) such exclusion is “repugnant to (Hawai'i Revised
Statutes (HRS) $] 431:10C-301(b) (4)? inasmuch as Plaintiff “has
only sought [underinsured motorist] coverage and not both
(uninsured motorist] and liability coverage under the same
policy”? and (3) the “exclusion of only [uninsured motorist]
coverage, but not [underinsured motorist] coverage in
[Defendant's] owned vehicle exclusion . . . is either (a) a clear
indication that [the exclusion] applies to [uninsured], but not
[underinsured motorist] coverage or (b) creates an ambiguity,
» RS § 431:20C-301(b) (4) (Supp. 2004) provides, in relevant par
(b) A motor vehicle insurance policy shall include:
(4) Coverage for loss resulting from bodily injury or
death suffered by any person legally entitied to recover
Ganages from oxners Or operators of underinsured motor
Vehicles, An insus
(Baphesis added.)
FOR PUBLICATION*#*
eee
which requires that the Policy be construed against [Defendant)
and resolved in [Plaintiff's] favor; i.e, it must (be] construed
as applying to (uninsured motorist], but not [underinsured
motorist} coverage.”
ultimately, the court ordered that “[Plaintiff] is
entitied to (underinsured motorists coverage] under the Policy
for injuries and damages resulting from the January 17, 1999
accident, including but not Limited to whatever [underinsured
motorist] payments are determined to be due at arbitration
pursuant to the Policy.” On June 19, 2002, the court, based on
its findings and the above conclusions and order, entered final
judgment in favor of Plaintiff and against Defendant. Defendant
filed a notice of appeal on July 18, 2002, from this final
judgment.
Ww.
on appeal, Defendant contends that ‘the court erred in:
(2) applying Hawai'i law, rather than California laws (2) ruling
that Plaintiff is a resident of the named insured’s household:
(3) deciding that Plaintiff was 2 named insured;‘ and (4) failing
to apply the Policy exclusions. Defendant requests that this
court reverse the court's determinations that (1) Hawai'i lew
applies, (2) Plaintiff was a resident of the named insured’s
«insofar as we hold that the court did not err in concluding that
Plaintiff is a resident of the named insured’ s household, see discussion
Inia, and is, therefore, entitied to underinaured motorist benefits, we need
AottMasress Défencent’s Contention that the court erred in deciding that
Plaineiff was e named insured.
10
‘***FOR PUBLICATION!
household, (3) Plaintiff is a named insured, and (3) the Policy
exclusions are inapplicable.
v.
‘The question of the “{e}hoice of law [to be applied in
fa case] is a question of law reviewable de novo,” denking va
Whittaker Corp,, 785 F.2d 720, 724 (9th Cir, 1986) (citing In re
McLinn, 739 F.2d 1395, 1398 (9th Cir. 1984)). Therefore, a
choice of law issue is a question of law we review under the
right/wrong standard. See Jenkins, 785 F.2d at 7247 Ditto vw.
McCurdy, 102 Hawai's $18, $21, 78 P.3d 331, 334 (2003)
("Questions of law are reviewable de nove under the right/wrong
standard of review.” (Internal quotation marks and citation
omitted.)).
When reviewing the court’s interpretation of a
contract, “the construction and legal effect to be given a
contract is a question of law freely reviewable by an appellate
court.” Brown v, KFC Nat'l Mamt. Co., 82 Hawai'i 226, 239, 921
P.2d 146, 159 (1996) (internal quotation marks and citation
omitted).
When reviewing a circuit court’s findings of fact
and/or conclusions of law, “[t}his court reviews the circuit
court’s findings of fact under a clearly erroneous standard and
the circuit court’s conclusions of law de nove.” RGIS Inventory
Specialist v. Hawai'i Civil Rights Comm'n, 104 Hawai'i 158, 160,
86 P.3d 449, 451 (2004).
n
FOR PUBLICATION***
vi.
As a preliminary matter, Plaintiff contends that
befendant’s points of error should be disregarded by this court
in accordance with Hawai'i Rules of Appellate Procedure (HRAP)
Rule 28(b) (4) (C) (2002) because (1) Defendant did not include the
contested findings and conclusions in its opening brief, and (2)
Defendant failed to “specifically identity” the findings or
conclusions that it contested.*
‘The record consists of fifteen volumes of court
documents. The large number of documents, incorrect citations to
the record and/or omissions of the relevant quotations of the
contested findings and conclusions place an une!
ssary burden
upon “both the parties compelled to respond to the brief and the
appellate court attempting to render an informed judgment.”
Housing Fin. ¢ Dev, Corp. v. Ferguson, 91 Hawai'i 81, 85, 979
P.2d 1107, 1111 (1999). Nevertheless, it is within this court’s
+ according to HRAP Rule 28(b) (4) (C), an opening brief must include:
[a] concise statenent of the points of error set forth in
Heparately nunberea paragraphs. Each point shall state:
the alleged error conmittea by the court or agency; (11)
jyand (444)
there in the record the alieged error was opjected to or the
anner in which the alleged error was brought to che
attention of the court or agency. ‘where applicable, gach
eo inelw (©) when tne
point involves a finding or conclusion of the court oF
Egency. She £104
sxxaxl-1
w
(Bmphases added.) Plaintiff's assertions are correct insofar as Defendant has
Incorrectly eited to the court's order denying Defendant's motion for choice
of law in its firet point of error, has cited to conclusions which are not
Felated to its third point of error, and has omitted inclusion of the
appropriate quotations of the Contested findings or conclusions.
12
‘***FOR PUBLICATION®#*
discretion to address Defendant's as:
rted points of error
despite nonconformance with HRAP Rule 28(b)(4)(C). See Sprague
wi Cal, Pac, Bankers & Ins, Ltd., 102 Hawai'i 189, 196, 74 P.3¢
12, 19 (2003), Even though Defendant incorrectly cited to the
court's order regarding Defendant’s choice of law motion,
Defendant’s other errors are harmless insofar as Defendant has
primarily referred to the court's July 16, 2001 findings and
conclusions.
vir.
A
As to the conflict of law issue, Plaintiff relies on
Peters v. Peters, 63 Haw. 653, 660, 634 P.2d 586, 591 (1981), and
asserts that “there is a presumption that Hawaii law applies
unless another state’s law ‘would best serve the interests of the
states and persons involved.'” This court has “moved away from
the traditional and rigid conflict-of-laws rules in favor of the
modern trend towards @ more flexible approach looking to the
state with the most significant relationship to the parties and
subject matter.” Lewis v. Lewis, 69 Haw. 497, 499, 748 P.2d
1362, 1365 (1988) (citing Peters, supra). This flexible approach
places “[p]rimary emphasis . . . on deciding which state would
have the strongest interest in seeing its laws applied to the
particular case.” Id. Hence, this court has said that the
interests of the states and applicable public policy reasons
should determine whether Hawai'i law or another state’s law
should apply. See Peters, 63 Haw. at 667-68, 634 P.2d at 595.
13
***FOR PUBLICATION***
oe
“the preferred analysis, [then] in our opinion, would be an
ssessment of the interests and policy factors involved with a
purpose of arriving at a desirable result in each situation.”
da at 664, 634 P.2d at 593.
In this regard, Plaintiff’s reliance on Abramson vs
Aetna Cas. & Sur. Co., 76 F.3d 304 (9th Cir. 1996), and Lemen ve
Allstate Ins. Co., 93¢°F. Supp. 640, 643 (D. Haw. 1995), is
persuasive. In Abramson, plaintiff, a New Jersey resident, was
riding a bicycle in Hawai'i when he was fatally injured by a car
driven by an underinsured motorist. 76 F.3d at 305. Plaintift’s
estate sought underinsured motorist benefits from an insurance
policy that contained an anti-stacking provision. Id. Applying
Hawai'i law, the Hawai‘ federal district court found the anti~
stacking provision invalid. Id.
Relying on Peters, the Ninth Circuit Court of Appeals
affirmed the district court’s ruling and stated that “Hawali’s
choice-of-law approach creates a presumption that Hawaii law
applies unless another state’s law would best serve the interests
of the states and persons involved.” Id. (internal quotation
marks and citations omitted). In balancing the interests of
Hawai'i and New Jersey, the Ninth Circuit noted that “Hawaii's
governing automobile accidents-which is especially strong given
the number of non-resident drivers in the state-is not outweighed
by any other state’s interests.” Id, (emphases added). The
Ninth Circuit also approved the district court's finding that
u
***FOR PUBLICATION*#*
ees
“New Jersey's interests in the insurance contract did not control
the choice-of-law analysis because of the lack of any negotiation
over the terms of the contract and the parties’ expectations that
the contract would cover the insured as he travelled throughout
the United States and Canada.” Id. Applying this same balancing
of interests to the instant case, there is a strong interest in
applying Hawai'i law to protect non-resident college students
attending institutions within this state buttressed by the
adhesionary nature of the Policy and the Policy’s applicability
throughout the United States.
Insofar as Lemen is factually similar to the case at
bar, it is persuasive.‘ In Lemen, the plaintiff sustained
injuries in an automobile accident in Hilo, Hawai'i which led to
her claim of underinsured motorist benefits under her father’s
policy. 938 F. Supp. at 641. Her father's policy, issued and
delivered in Alaska, insured two of father’s vehicles, both of
+ defendant argues that “reliance (upon Langa] is not well-founded”
because the case "aiatakenly Used the wrong section of the Restatenent(,]” $
Las, wnich pertains to conflicts of law in tart actions, as opposed to § 168,
which"provides che standard for contracts disputes. See Restatement (Second),
EeConfiset of las (Bestatensnt) $8185, 166° (2004). while it as true that §
{is nas discussed in the fetere decision, st was not adopted as Hawai't’s
approach to conflict of Lew matters. Seg 63 Haw. at 662-64, 63¢ P.2d at 592-
So Rather, this court cited to § 145 to note the “most significant
Felationship” approach to conflicts of law. See id. at 662, 624 P.2d at 592.
Both §§ 145 and 188 address the “most significant relationship” approach. See
Restatement $6145, 188
In addition to the “most significant relationship” approach,
Beters referred to two other theories ~-"governmental interests” and Professor
Fefier's approach, See 63 Haw. st 662-64, 654 P-20 at 592-95. Upon surveying
these three approaches, this court oltinately adopted the view that an
assessment of the interests and policy factors involved with a purpose of
arriving at a desirable result should be determinative. Id. at 664, 634 P.24
at 593.” Hence, the Lesen court's subsequent characterization of the Peters
Gecision as being “guided by the Restatenent (Second) of Conflict of Laws §
{4s (sia) [,)" 996 F. Supp. at €43, Le not binding upon this court.
1s
‘***FOR PUBLICATION*#*
os
Id. The pick-up truck that the
which were located in Al
plaintiff was driving at the time of the accident was registered
in her name but was not insured. Id, The plaintiff, a resident
and citizen of Alaska, was attending the University of Hawai'i at
Hilo at the time of the accident. Id.
Pursuant to Peters, the United States District Court
for the District of Hawai‘! (“district court”) in Lemen
determined that Hawai'i had “a stronger interest in seeing ite
laws applied” for several reasons. 938 F. Supp. at 643. First,
according to the district court, the plaintiff's accident
occurred in Hawai'i. Id. Second, notwithstanding the fact that
the plaintiff was @ resident of Alaska at the time of the
accident, she was Living in Hawai'i while attending the
University of Hawai'i as a full-time student. id. Third, the
fact that the plaintiff's truck was uninsured at the time of the
accident was irrelevant because under Hawai'i law underinsured
motorist coverage “follows the insured person and not the insured
Id. (citing Daves v. Fizst Ins. Co. of Hawaii, Ltd
77 Hawai'i 117, 123-24, 883 P.2d 38, 44-45 (1994); Allstate Ins.
Co. vs Moran, 59 Haw, 44, 47-48, 575 P.2d 477, 479-80 (1978);
and Allstate Ins, Co, v. Hirose, 77 Hawai'i 362, 366, 884 P.2d
1138, 1142 (1994) (parentheticals omitted). Fourth, the district
vehicle,
court determined that this court “has articulated a strong
interest in protecting the rights of persons within the state to
recover benefits pursuant to automobile insurance policies.” Id.
at 644 (citing Methven-Abreu v, Hawaiian Ins, § Guar, Cou Ltda,
16
‘**#FOR PUBLICATION*#*
73 Haw, 385, 395-96, 834 P.2d 279, 285 (1992); DeMello v. Firat
Ins. Co. of Hawaii, Ltd, 55 Haw. 519, 523-24 6 n.d, 523 P.2d
304, 306-07 6 n.4 (1974).
‘The district court eschewed application of Alaska law
because doing so “would frustrate Hawaii's state policy to
protect persons injured within its boundaries.” Id, at 644. The
defendant insurer’s assertion that “the law of the state where an
insurance contract is made governs,” id., was rejected in light
of insurance policy language stating that “during the premium
period, . . . [the] policy applies to losses to the auto,
accidents and occurrences within the United States of America,
its territories or possessions or Canada, or between their
ports.” Id, at 644 n.5. Hence, the district court concluded the
defendant's insurance policy was such that it was “foreseeable
that an insured family member might temporarily live out-of-state
and suffer a car accident, thereby subjecting [the defendant] to
the law of a foreign state.” Id. at 644. Based on the
foregoing, the Lemen court applied Hawai'i law.
B.
Similarly in the case at bar, the accident occurred in
Hawai'i, At the time of the accident, Plaintiff was living in
Hawai'i and was attending West Oahu as 2 full-time student. The
district court's determination that Hawai'i has a strong interest
in protecting those injured within its borders is consistent with
this court's interpretation of Havai'i’s underinsured motorist
statutes. Hawai'i’s underinsured motorist statute, HRS §
vv
‘***POR PUBLICATION*#*
ee
431:10¢-301 (b) (4) (1993 & Supp. 1998), is intended “to provide
protection, through voluntary insurance, for persons who are
injured by underinsured motorists whose liability policies are
inadequate to pay for personal injuries caused by motor vehicle
accidents.” Tayi wt 1 90 Hawai's 302,
307-08, 978 P.2d 740, 745-46 (1999) (quoting the legislative
history of HAS § 431:10C-301). Because the purpose of Hawai'i’s
underinsured motorist statute is to protect persons, this court
has held that under Hawai's lew, insurance “follows the insured’s
person.” Dawes, 77 Hawai'i at 123, 883 P.2d at 44. California's
law, denying coverage when “the vehicle involved in a given
accident” is not “as described in the policy for which the claim
is made," Hartford Cas. Ins. Co. v. Cancilla, 34 Cal. Retr. 24
302, 307 (Cal. Ct. App. 1994), would thus “frustrate Hawaii's
state policy to protect persons injured within its boundaries.”
Lenen, 938 F. Supp. at 644.
Finally, while the Policy lacks @ choice of lew
provision, the Policy does contain a geographical area provision
that is substantially similar to the geographical area provision
in the defendant's policy in Lenen.’ Because the Policy
affirmatively acknowledges that the terms and conditions therein
apply “to accidents and losses” which occur anywhere within the
United States, it is foreseeable “an insured family member . . -
> As previously mentioned, Defendant's Policy states that
n(einie policy Sppiies only to accidents and losses which occur: (1) [gluring
the policy period as shown in the Oeclarations; and (2). (w)Sthin the policy
Eereitory "the “policy territory” 1s defined as encompassing “[t)he United
States of America, ite territories or possessions 1”
18
BOR PUBLICATION***
temporarily liv[ing] out of state [may] . . . suffer a car
accident,” Lemen, 938 F. Supp. at 644, and thereby may be
subjected to the laws of other states - including those of
Hawai'i.
Defendant contends that this court adopted and,
therefore, should apply the conflict of laws test set forth in
State v. Bridges, 83 Hawai'i 187, 925 P.2d 357 (1996). Under
this test, Defendant contends the appropriate law is determined
“by considering the domicile of the parties, the situs of the
transactions, and the interest of the forum in applying its own
law.” Id. at 195, 925 P.2d at 365 (internal quotation marks and
citation omitted).
In Bridges, the defendants were arrested in California
by California police officers in a “sting” operation involving a
drug transaction between the defendants and the Honolulu Police
Department. 83 Hawai'i at 188-91, 925 P.2d at 358-61. The issue
posed in Bridges was “under what circumstances will evidence
obtained in [California] (the situs state) be suppressed in a
criminal prosecution in [Hawai'i] (the forum state)[.]” Id. at
194, 925 P.2d at 364. Noting that the issue was “novel,” this
court set forth two methods by which to adjudicate the issue:
(2) conflicts of law interest analysis; and (2) exclusionary rule
analysis. Id, at 194-95, 925 P.2d at 364-65. This court then
adopted and applied the exclusionary rule analysis as “the better
19
‘**4FOR PUBLICATION*#*
approach.” Id, at 195, 925 P.2d at 365. Therefore, Defendant's
reliance on interest analysis is not supported by Bridges.
Defendant also relies on Roxas v. Marcos, 89 Hawai'i
91, 969 P.2d 1209 (1998), Lesser v. Houghey, 88 Hawai'i 260, 965
P.2d 802 (1998), and California Fed, Sav, & Loan Assoc, v, Bell,
6 Haw. App. 597, 735 P.2d 499 (1987). Each one of these ca
however, is also distinguishable. foxas did not adjudicate a
conflict of laws issue. See Roxas, 69 Hawai'i at 117 n.16, 969
P.2d at 1235 n.16 ("None of the parties address the issue of
choice of law in their briefs.”). Lesser applied the forum non
conveniens doctrine which establishes the appropriate forum site,
whereas @ question involving conflict of laws addresses the
appropriate law to be applied. See Lesser, 8@ Hawai'i at 262,
965 P.2d at 804 (“This court has previously described the
doctrine of forum non conveniens as the discretionary power of a
court to decline to exercise a possessed jurisdiction whenever st
appears that the cause before it may be more appropriately tried
elsewhere.” (Internal quotation marks and citation omitted.)).
Finally, citing Bell, Defendant contends that
Restatement (Second) of Conflict of Laws § 188 (1971) is
controlling. While the Intermediate Court of Appeals (ICA) made
reference to the Restatenent in Bell, 6 Haw. App. at 604-05, 738
P.2d at 504-05, the ICA decided the underlying choice of law
issue utilizing Professor Leflar’s “choice-influencing
considerations” approach referred to in Peters. See id. at 605-
07, 735 P.2d at 505-06.
20
*FOR PUBLICATION*#*
It should be noted, however, that Professor Leflar’s
“choice influencing considerations” approach was not adopted by
this court in Beters. Beters indicated there are three generally
(2) the
accepted approaches to modern conflict of laws analysis
“governmental interests” approach advanced by Professor Currie,
(2) “the most significant relationship” test embodied in the
Restatement (Second) of Conflict of Laws (1971); and (3) the
“choice-influencing considerations” approach articulated by
Professor Leflar.’ 63 Haw. at 662-63, 634 P.2d at 592-93 (1981).
Peters did not expressly adopt one approach over another.
Rather, this court concluded as said before that “[t]he preferred
analysis . . . would be an assessment of the interests and policy
factors involved with a purpose of arriving at a desirable result
in each situation.” Id. at 664, 634 P.2d at 593.
D.
In light of the foregoing, we conclude that the court
was correct in applying Hawai'i law to the case at bar.
+ the “governmental interests” approach considered “the governmental
interests of the states whose laus sight be applicable, but with a basic
preference of the forun's ovn law.” peters, 63 Haw. at 662, 63¢ P.2d at 592.
+ professor Leflar set forth “fundamental policy factors... which
are deened to underile sll choice-of-law decision(s).” gatern, 63 law, at
663, 634 F.2d at 592-83. These policy factors include
(a) predictability of result,
(2) maintenance of interstate order,
(3) Sinplitication of the Judicial task,
(4) advancenent of the forun’s governmental interests, and
(5) application of the better rule of le
Lda at 663, 636 P.24 at 593.
21
*#*FOR PUBLICATION*#*
eee
vant.
‘The court found and it is undisputed between the
parties on appeal that Father is a “named insured” under the
Policy and that, as Father's son, Plaintiff is related by blood
to a named insured. The parties disagree, however, on whether
plaintiff satisfies the further requirement of being a “covered
person”; that is, a resident of father’s household, inasmuch as
at the tine of the accident Plaintiff was not present where his
Father’ s household was located.
Defendant asserts that this court defined a resident of
a named insured’s household in AIG Hawaii Ins, Co. v. Estate of
Garaang, 74 Hawai'i 620, 651 P.2d 321 (1993), and Kok vs Pac.
Ins. Coss Ltd., 51 Haw. 470, 462 P.2d 909 (1969). In Caraana,
the defendant Vilanor, while 2 passenger in a truck driven by
defendant Godinez, shot and killed defendant Carsang while
caraang operated another vehicle. 74 Hawai'i at 625, @51 P.2d at
324. ‘The vehicle Godinez was driving was insured under an
autonobile insurance policy issued to Bonifacio and Cathy
Godinez. Id. at 623, 851 P.2d at 323. The insurance policy
defined a “family member” as “a person related to [the named
insureds) by blood, marriage or adoption who is a resident of
[the named insureds’] household, including a ward or foster
child.” id. at 629, €51 P.2d at 326. Apparently pursuant to
this definition, this court held that Godinez “was not a fanily
menber of a named insured” because although “Godinez was related
by blood to Bonifacio,” Godinez was living with his natural
22
‘***POR PUBLICATION*#*
SSeS
mother at the time of the shooting. Id. at 629-30, 851 P.2d at
326. However, Caraang is inapposite because the case does not
address the situation of an out-of-state student.
While Kok also did not directly address the situation
of an out-of-state student, this court indicated that based on
the facts and circumstances of a particular case, military duty
51 Haw. at 472,
may constitute a period of temporary absenc
462 P.2d at 911. In Kok, the father of the named insured sought
uninsured motorist benefits under the named insured’s insurance
policy. 51 Haw. at 470, 462 P.2d at 910. While confirming the
proposition that “actual residence under a common roof is not an
absolute requirement,” id, at 471, 462 P.2d at 911, this court
held that because the father made “no showing of temporary
‘absence, no showing that (the father] ever lived at named
insured’s residence, [and] no showing of support beyond two meals
a day,” the father was not a resident of the named insured’ s
household. Id. at 472, 462 P.2d at 911. Citing to cases from
other jurisdictions, it was noted that a “temporary absence while
on military duty does not change prior and continuing residence
with parents(.]” Id, (citation omitted). As Plaintiff points
out, this court has not decided whether and under what
circunstances @ child who attends school in another state is
considered to be temporarily absent from the household.
mK,
It has been said that “[a] resident of a household is
one who is a menber of a family who lives under the same roof.”
23
**FOR PUBLICATION:
Crossett v, St. Louis Fire & Marine Ins. Co., 269 So. 2d 869, 872
(Ala, 1972) (internal quotation marks and citation omitted). The
term “residence,” however, “emphasizes menbership in a group
rather than an attachment to a building.” Id, As such, courts
have determined that whether a child remains 2 member of a
household when he or she lives apart from the family’s home while
attending an educational institution depends on the facts and
circumstances of each case. See, edi, ids In Crossett, the
Alabama court said, “{o]rdinarily when a child is away from home
attending echool, he remains a member of the family household,
land the question of when he cease(s) to be such is one which must
be determined from all of the facts and circumstances as revealed
by the evidence.” Id, (internal quotation marks and citation
omitted) .
Such evidence must tend to show the student’s intention
to remain a member of the family household. See, equ ids
("[Residence] is a matter of intention and choice rather than one
of geography.” (Internal quotation marks and citation omitted.))7
Am, States Ins. Co. v. Walker, 486 P.2d 1042, 1043-44 (Utah 1971)
(affirming the trial court’s determination that the plaintiff,
who studied and lived at several places other than her father’s
household in Idaho, was still a resident of her father’s
household because she had an Idaho driver's license rather than a
Utah driver’s license, she relied on her parents for partial
financial support, she kept her books, furniture and clothing at
her father’s home, and she considered herself to be a resident of
24
**4FOR PUBLICATION®#*
Idaho); Manuel v. Am, Employers Ins. Co., 228 So. 24 321, 322
(La. Ct. App. 1969) (holding that the plaintiff, who lived forty
miles from his father’s hone while attending college, was still a
resident of his father’s household because the plaintiff kept his
permanent mailing address as his father’s home, received his mail
from his father's home, returned to his father’s home on weekends
and during vacations, and kept most of his personal belongings at
his father's home).
In Goldstein v, Prosressive Cas, Ins, Co., 553 N.W.2d
353, 354 (Mich. Ct. App. 1996), appeal denied, S68 N.W.2d 62
(1997), the plaintiff was involved in a car accident that
occurred in Michigan. The plaintiff attended college in Missouri
and his parents’ home was located in Maryland. Id. at 354-55.
Following the accident in Michigan, the plaintiff claimed auto
insurance coverage under his father’s liability policy. Id. at
354. In order to determine whether the plaintiff was a resident
of his father’s household in Maryland, the Goldstein court
identified several factors, including (1) the subjective or
declared intent of the student to remain a part of his or her
parents’ household, (2) the formality of the relationship between
the named insured and the person claiming insurance coverage
under the named insured’s insurance policy, (3) whether the place
where the person lived was the same premises as the named
insured, and (4) the existence of another place of lodging away
from the named insured for the person claiming insurance
coverage. Id, at 356. When considering the status of a child,
25
FOR PUBLICATION*#*
the court also identified other relevant factors, including
(1) the child's mailing address, (2) whether some of the child’s
possessions were located with the parents, (3) the address listed
on the child's driver's license or others documents, (4) whether
a room was maintained for the child at the parents’ home, and
(5) the child’s financial dependency upon the parents. id.
ultimately, the Goldstein court determined that the
plaintiff was a resident in his father’s household
because (1) “the plaintiff kept the majority of his personal
possessions at his parents’ home in Maryland,” (2) the plaintite
“used his parents’ address on his Maryland driver’s license,”
” and
(3) the plaintiff “had his own bedroom at his parents’ hom
(4) the plaintifé was “financially dependent” on his parents who
paid for his college education and “claimed him as a dependent on
[his father's) tax returns.” Id. at 356-57.
In contrast to the foregoing, the plaintiff in Hamilton
v. State Farm Mut, Auto, Ins. Co., 364 So. 2d 215, 216 (La. Ct.
App. 1978), cert. denied, 366 So. 2d 915 (1979), was injured in
an automobile accident and sought recovery under the uninsured
motorist provision of his father’s insurance policy. Prior to
attending college, the plaintiff had resided with his parents
since birth. Id, at 217. After the first two years of college,
the plaintiff became and continued to be financially self-
supporting while living apart from his parents but in the same
state. Id, Throughout the six years the plaintiff lived away
from his parents, he visited his parents at least once a month.
26
‘***FOR PUBLICATION
Id. Just prior to his graduation, the plaintiff decided to go
into business for himself and in line with this decision, he
leased an apartment. Id.
At the time of the accident, the plaintiff had moved
758 of his belongings out of his parents’ home and into his
apartment. Id, The plaintiff's permanent address was the
address of his business. Id, at 218. The plaintiff adnitted
that he neither intended to reside with his parents upon
graduation, nor did he consider himself a resident of his
parents’ household. Id, at 217-18. In light of the foregoing
facts, the Hamilton court held that the plaintiff was not a
resident of his parents’ household for the purposes of uninsured
motorist coverage. Id. at 218.
x
In the case at bar, it is undisputed that most of
Plaintiff’s belongings remained at his Father's house. see
Goldstein, 553 N.W.2d at 386. Indeed, the only personal
belongings that Plaintiff brought with him to Hawai'i were his
surfboard and some clothing. It is also uncontested that
Plaintiff maintained a room in his Father’s home, and was
completely financially dependent on his Father while living in
Hawai'i. See id, at 356-57. Because of this dependency, Father
declared Plaintiff a dependent on his income tax returns. See
Morgan vy, Illinois Farmers ins, Co., 392 N.W.2d 37, 39 (Minn. Ct.
App. 1986) (relying on, inter alia, the fact that the plaintiff
Listed as a dependent on her parents’ tax returns was
27
FOR PUBLICATION’
eee
sufficient for the plaintiff to be considered a resident of her
parents’ household for insurance coverage). In addition, at the
time of the accident, Plaintiff had a California driver's license
that Listed his Father's address as Plaintiff's permanent
address. See Goldstein, 553 N.W.2d at 357. Therefore, it would
appear Plaintiff remained a resident of his Father's California
household while Living in an apartment in Hawai'i."
Defendant essentially asserts that Plaintiff intended
to permanently reside in Hawas's. The matters that Defendant
relies upon," however, are largely unsupported by the court’s
findings.” “In most instances the points urged either involve
* —plasntséf argues that @ letter written By a USAA repre
Fether establishes that USAA "had 2 policy of extending insurance coverag
Benefits to children of & named insured’s household who were away at school.”
Tncofar as the court did not rely on this letter, but on the findings
discussed infra, we do not consider this letter in determining that the court
Correctly concluded that Plaintiff was doniciied in Father's household and
Wes, therefore, a “resident” in thet household at the time of the eccident.
Sona
household, Dei
isetes "55-654
Jcting that Plaintiff was not a resident of his Father's
relies on deposition teatinony by Plaintiff thst (1) he
Tighway” ae his permanent mailing address and (2) he
Gisined legal residency in California ontil October 4, 1998 on 2 University of
fiqwat't application form. Ingofar as these matters may be considered, they
Felated te Plaintiff's address for mailing purposes and residency information
on college application foras. In light of the unchallenged findings upon
Which the court based ite conclusion that Plaintiff was a resident of his
Father's household, it cannot be concluded that for insurance coverage
purposes the court was clearly erroneous in determining that Plaintiff was
Fesident of Father's household.
the court made the following nine findings in concluding that
Plaintiff renained @ resigent of his Father's household while attending
college in Hawai'i:
4, On Janusy 17, 1999, (Plaintif#] had a Californie
driver's iicense that listed his father's... California
Sdarese as his permanent adress.
S. On January 17, 1998, (Plaintiff) was not gainfully
employed and was completely dependent on his father for
funancsal support
6. On denuary 17, 1999, (Plaintiff) maintained «
bedroom in nis father's Californie hone.
(continued.
28
FOR PUBLICATION**#
only questions of fact or are based on assertions of fact
contrary to findings of the trial court.” Campbell v, DePonte,
57 Haw. $10, $13, $59 P.2d 739, 741 (1977) (block format and
citation omitted). Defendant “has the burden of pointing out
specifically wherein the findings are clearly erroneous.” Id.
(block format, italics, and citation omitted). However,
Defendant does not challenge the court’s findings as cl
ely
erroneous. See ids
Perhaps the only item that relates to Defendant's
position is the court's finding that Plaintiff lived in the city
and County of Honolulu at the time of the accident. But,
inasmuch as this court has held that “actual residence under a
common roof with the named insured is not an absolute
requirement [,]” the court's determination that “(Plaintiff] was
4 (, , continved)
TS) on ganvary 1
412 of fie personal por
ome, incluging his ear, stere
Clothes and books.
8. "Tne only possessions [Plaintiff] brought with him
from California to Hawaii were clothing and his surf bosrd-
3. Pleinti¢#] was named as a dependent on (Father’®)
Internal Revenue Service income tax returns for the years
1998-1999.
10." [Father] was completely responsible for
[Plaintiff's] tuition, books, and other school related
expenses while (Plaintiff) attended the University of
Hawaii-weet Osho.
Ui" (Father) paid ali of (Plasntsee’s) travel
expenses for (Plaintiff's) trips to and from Hawai'i
32, “Irather) paid all of (Plaintiff's) medicsl and
accident insurance premiune before, during, and after the
tine. [Plaineiff] was injured on January 17, 1999, including
preniuns for the Policy.
[Plaintife) maintained almost
in hie. father's california,
felevision, and most of his
Defendant did not specifically challenge these findings as clearly erroneous
fand, therefore, this court will not disturb the court's findings. Sse RGIS
106 Wawal"t at 160, 86 Pi3d at Si (stating that "(e)his
Zourt reviews the cireuit court's findings of fact under a clearly errenscus
Standara”)
29
***FOR PUBLICATION®#*
eee
not required to be physically living in [Father's] California
household at the time of the January 17, 1999 accident” was
right.
xr.
‘he court also indicated that the Policy was ambiguous
because the word “resident” was not defined and because the
Policy did not “indicate whether a child away at a post
secondary
‘school is considered a resident of the named insures parents’
household.” Apparently in view of the absence of a definition
for “resident” or the phrase “resident of the named insured’ s
household,” the court relied on HRS § 43:
10c-103 (Supp. 2000),
which contains the statutory definition of the term “insured”
it 4s used within Hawai'i’s underinsured and uninsured motorist
statutes. Under that definition, one is considered an insured
if the person “usually” resides in the same household as the
Stheured" means:
(i) "the person identified by nase as insured in
notor vehicle insurance policy complying with
ection 431:10¢-301; and
(2) Aoperson residing in the sane household with «
Named insured, specitically:
Th). A-apouse or reciprocal beneficiary or
Other relative of a naned insured:
(B) Ruminor in the eustogy of a naned insured
A person resiae:
usually makes the person's howe in tl
wich aay inelude Feciprocal beneficiaries, ven though’ the
beracn temporarily lives elsewhere.
(Bephasia added.)
30
‘***FOR PUBLICATION**
named insured, although “temporarily liv[ing] elsewhere.” HRS §
491:10-103.
In this connection, Defendant asserts, based on Foote
ys Roval Ins. Co. of An., 88 Hawai'i 122, 962 P.24 1004 (1998),
and toa certain extent, Kok, that “the language of the (Plolicy
is not ambiguous.” Defendant's reliance on th is,
however, misplaced. Foote is inapposite because this court held
that the “family member” clause as it pertained to “an officer or
shareholder of a closely held corporation” is not ambiguous
because “a corporation cannot have a ‘family member” and because
extending coverage to officers or shareholders “would result in
rewriting the policy.” Foote, 68 Hawai'i at 125, 962 P.2d at
1007. Kok held that the insurance policy in that case
“unambiguously and clearly” defined an insured as “the named
insured and any relative of the named insured who is a resident
of the same household.” Kok, 51 Haw. at 470-71, 462 P.2d at 910.
‘This court neither defined the term “resident” nor the phrase
“resident of the named insured’s household” in Kok. Accordingly,
Defendant’s cases do not govern.
In light of the above, the facts and circumstances of
this case demonstrate that Plaintiff was temporarily absent from
his Father’s home while attending college in Hawai'i at the time
of the accident. Based on the findings of the court, it cannot
be said the court erred in its conclusion that Plaintiff was a
resident of his Father's, the named insured’s, household in
california.
31
‘***FOR PUBLICATION*#*
xT.
Lastly, Defendant contends that exclusions within the
Policy preclude Plaintiff’s claim. These exclusions, previously
(A) the “owned but not insured” exclusion;
referred to, includ
(B) the “less than four wheels” exclusions and (Cc) the
“reasonable belief” exclusion.
R,
To reiterate, exclusion No. 1 states, in relevant part,
that Defendant “doles] not provide Uninsured Motorists Coverage
for . . . bodily injury sustained by any person. . . wiht
occupying, or when struck by, any motor vehicle owned by you or
any family member which is not insured for this coverage under
this policy.” (Emphases added.) Defendant maintains that such
an exclusion is valid in the underinsured context pursuant to
Nat’ Union Fire Ins, Co. v. Reynolds, 77 Hawai'i 490, 889 P.2d
67 (Haw. App. 1995) and Budget Rent-A-Car Svstems, Inc. v
Coffin, 82 Hawai'i 351, 922 P.2d 964 (1996). (Emphasis added.)
On the other hand, Plaintiff argues that “owned vehicle”
exclusions have been void in Hawai'i for over two decades,
relying on Kau v, State Farm Mut. Auto, Ins. Co., 58 Haw. 49, 564
P.2d 443 (1977), Methven-Abreu v. Hawaiian Ins. & Guar. Cou
Ltd., 73 Haw. 385, 834 P.2d 279 (1992), and Lemen v. Allstate
Ins. Co., 938 F. Supp. 640 (D. Haw. 1995).
32
FOR PUBLICATION***
1.
Defendant's reliance on the cited cases for the
proposition that an “owned but not insured” exclusion is valid in
the underinsured context is not persuasive. In Reynolds, a
passenger made claims for benefits under both the insured’ s
Liability coverage and underinsured coverage. 77 Hawai'i at 492,
889 P.2d at 69. In resolving the ultimate issue of dual recovery
by the passenger, the ICA concluded that “automobile insurance
policies such as the one here may bar dual recovery under both
Liability and underinsured coverages without violating the
underinsured motorist statute.” Id. at 496, 889 P.2d at 73.
Also at issue in Reynolds was whether the “owned
vehicle” exclusion in the insurance policy was “void because it
is similar to the owned vehicle exclusion” in an uninsured
motorist insurance policy that vas “held void as against public
policy in Kau[.]” Id. The exclusionary language in question in
Reynolds was as follows:
DeFINrTzoNs
Throughout this policy, “you” and “your” refer to the “named
Insured” shown in the Declarations.
‘BART c! UNDERINSURED NoTORISTS COVERAGE-HAMAL
emer
2. caused by an accident.
The owner's or operator's Liability for these damages must
arise out of the ownership, maintenance or use of the
Honever, “underinsured moter vehicle” does not include any
vehicle’ or equipment?
2,” Owied by or furnished or available for the regular ut
of you or eny family member.
33
‘***FOR PUBLICATION*#*
a
Id. at 494-95, 889 P.2d at 71-72. First, the ICA noted that this
“court has not always found that an owned vehicle exclusion is
void as against public policy [and iJt has declined to extend Kau
to invalidate an owned vehicle exclusion in a no-fault automobile
insurance policy.” Id. at 497, 889 P.2d at 74 (citation
omitted) -
Next, in holding that Kau does not “nullif[y) owned
vehicle exclusions in. . . underinsured motorist endorsements,”
Ada, the ICA's reasoning was limited to the facts in Reynolds and
to policy reasons that disallowed dual coverage under liability
and underinsurance provisions. Id, at 498, 889 P.2d at 75.
Hence, Reynolds was concerned with dual coverage claims made by 4
passenger, id, at 492, 496, 889 P.2d at 69, 73, while this case
As concerned with a “covered person’s” claims through
underinsurance covera:
Lemen is illustrative of the distinction between cases
concerning dual coverage claims and claims brought solely through
underinsurance coverage. At issue in Lemen was the validity of
the following exclusionary language in the insurance policy:
Allstate will not pay any damages an insured person is
Tegally entitled te Fecover because of... bodily injury
or property damage sustained while in, on, getting into or
out of or when struck by am uninsured or underinsured motor
Vehicle which 1 owned by you or a resident relative,
938 F. Supp. at 643 n.2 (emphasis omitted). As discussed supra,
the federal district court of Hawai'i applied Hawai'i law and
determined that the “ouned vehicle” exclusion was void because
34
***FOR PUBLICATION!
plaintiff sought “(underinsured) coverage” from her father’s
policy with “no risk” that the underinsured coverage would be
“improperly substituted for liability in coverage.” Id. at 646.
In this regard, Reynolds did not state that all owned vehicle
exclusions were void as against public policy. Rather, the ICA
observed that this court “forecasted that in the case of
underinsured motorist coverage as in the context of the no-fault
law, not al] owned vehicle exclusions are violative of public
policy|.” 77 Hawai'd at 499, 889 P.2d at 76 (emphasis added)
(internal quotation marks and citation omitted).
Defendant next relies on Coffin, 82 Hawai'i 351, 922
P.2d 964 (1996), as a reaffirmation of Reynolds and the
proposition that owned vehicle exclusions are valid in the
underinsured context. The facts and reasoning in Coffin,
however, are plainly different from those in the instant case.
In Coffin, the injured individual was involved in a rental car
accident on Saddle Road on the island of Hawai'i. Id. at 352,
922 P.2d at 965. The rental contract contained a use limitation
that stated “driving on Saddle Road and Waipio Valley Access
Roads is prohibited.” Id. In upholding the use limitation, this
court relied on the plain language of HRS §§ 431:10C-104 and
431:10C-105 relating, respectively, to the conditions of
operation and registration of motor vehicles and self-insurance.
Id. at 385, 358, 922 P.2d at 968, 971. The instant case,
however, is concerned with an “owned but not insured” exclusion
35
FOR PUBLICATION*#*
ee
instead of a use limitation. This case also relies on the
application of a different statutory provision, that is Hawaii's
underinsured motorist statute, HRS § 431:301(b) (4), rather than
HRS §§ 431:10C-104 and 431:10C~-105.
Coftin does approve of the principle that “Liability
insurers have the same rights as individuals to limit their
Liability, and to impose whatever conditions they please on their
obligation, provided they are not in contravention of statutory
Anhtbitions or public policy.” Id. at 356, 922 P.2d at 969
(internal quotation marks and citation omitted). In accordance
with this principle, Coffin cited Reynolds as authority that
‘Hawaii's appellate courts have upheld the propriety of several
standard exclusions to insurance coverage.” id. However, this
court in Coftin did not state that the “owned vehicle” exclusion
was valid as to all underinsured motorist insurance policies.
Because the facts and reasoning in Reynolds and Coffin
are distinguishable from the facts in this case, Defendant's
reliance on these cases is unpersuasive.
2.
In contrast to Defendant’s arguments, the cases relied
on by Plaintiff are instructive in the instant case. In Kau, the
plaintiff, who resided with her parents, was driving a vehicle
owned and registered in the name of her mother. 58 Haw. at 49,
564 P.24 at 443. Plaintiff was involved in an accident caused by
another driver who was not insured and whose vehicle was not
36
FOR PUBLICATION***
insured. Id, Plaintiff's father, at the time, owned another
automobile which was covered by an insurance policy with
uninsured motorist coverage. Id. at 49-50, 564 P.2d at 443-44.
The mother’s car was not listed on the insurance policy. Id at
50, 564 P.2d at 443. This court in Kau determined that the
“owned vehicle” exclusion in the father’s insurance policy was
void as “violative of the . . . uninsured motorist statue.” 58
Haw. at 50-51, S64 P.2d at 444, At issue was the following
exclusionary language:
This (unineured motorist) insurance does not apply: « -
(p) To bodily injury to an insured while occupving ..”.'a
lend moter vehicle owned by the named inaured-oxany
Eesigent of the sane household. if such vehicle is not an
‘pumed-notor vehiciel1
An ‘ouned motor vehicle’ is defined in the policy as ‘the
c7 or trailer 3
{nclodes a temporary sobetitute automobile, a newly acquired
automobiter.1"
Ida at 50, 564 P.2d at 444 (emphases added). Because “(t]he
effect of the exclusionary clause is to deny [plaintiff] the full
protection of the statute(,]” this court struck down the clause
as “repugnant to the statute.” Id, at $1, 564 P.2d at 444.
In Methven-Abreu, the plaintiff-passenger was injured
in a one-car accident in her uninsured vehicle. 73 Haw. at 368,
034 P.2d at 262, At the time of the accident, plaintiff was
married and residing in the same household as her husband. Id.
Plaintiff’s husband owned another vehicle which was insured under
an insurance policy with no-fault coverage and uninsured motorist
protection. Id, Plaintiff’s husband was the sole named insured
on the policy and his vehicle was the only vehicle listed in the
37
**4FOR PUBLICATION*#*
oe
policy. Id, This court in Methven-Abreu, considered whether an
“owned vehicle” exclusion was “void as against public policy”
in Light of Kau. Ida at 396, 834 P.2d at 285-86. At issue was
the following exclusionary language:
A. We do not provide Uninsured Motorists Coverage for
Socslly Seaury Bistained by any preson:
of when struck by, any motor
insured for this coverace under this peliev(.1
Id. at 395, 634 P.2d at 285 (emphases added). This court struck
down this exclusion as void, explaining that “[a]s an insured
under her husband’s policy, [plaintiff] was covered for purposes
of the uninsured motor benefits whether or not she was injured
while occupying a vehicle specifically declared under the
policy.” Id. at 396, 834 P.2d at 286. The Methven-Abreu court
relied on the language of the uninsured motorist statute and the
clear legislative intent that mandated the availability of
uninsured motorist coverage to “‘the insured, spouse, or minor
children of either, resident in the named insured’s
household{.1/" Id. at 397, 834 P.2d at 286 (quoting Kau, 58 Haw.
at 51, 564 P.2d at 444 (quoting Hse. Stand. Comm. Rep. No. 194,
das
in 1965 House Journal, at $82)). ‘The court further dismi
irrelevant the argunent that plaintiff “should be precluded from
recovering uninsured motor benefits because she was financially
irresponsible in not insuring her vehicles.” Id, at 396-98, 834
P.2d at 286.
In both Kau and Methven-Abreu, the exclusionary
language at issue is nearly identical to Exclusion No. 1 in the
38
‘***FOR PUBLICATION*#*
Policy. All three exclusions preclude (1) uninsured motorist
coverage (2) to an insured who is (3) “occupying” (4) any “notor
vehicle owned by the named insured” or (5) “any family member” or
“resident of the same household” (6) which is “not insured” under
the respective policy. See discussion supra. In light of the
similar language and the fact that Hawai'i’s legislature intended
to treat underinsured motorist coverage “in the same manner that
uninsured motorist coverage is presently treated,” Taylor, 90
Hawai's at 308, 978 P.2d at 746 (quoting Hse. Stand. Comm. Rep.
No. 1150-88, at 1248) (block format omitted), the court correctly
determined that because Defendant's “owned but not insured”
exclusion attempted to limit Plaintiff’s entitlement to
underinsured motorist coverage, the exclusion is void as against
public policy.
Exclusion No. 4 states, in pertinent part, that
Defendant “doles} not provide Uninsured Motorists Coverage - -
for bodily injury sustained by any person . . . {wihile oper:
- ‘ 4 wheels which 4:
insured for this coverage under this policy.” (Emphasis added.)
Here, Defendant contends the issue is the extent to which this
court overruled Nat'l Union Fire Ins, Co. v. Ragil, 72 Hawai'i
205, 811 P.2¢ 473 (1991), in Dines v. Pac, Ins Co Utd, 78
Hawai'i 325, 893 P.2d 176 (1995). In Ragil, this court held that
a motorcyclist injured by an underinsured motor vehicle is not
39
FOR PUBLICATION*#*
entitled to recover benefits from his or her own motor vehicle
insurance policy because the Hawai'i legislature exempted
motorcycles from the no-fault insurance requirements. 72 Hawai'i
‘at 207, 215-16, 893 P.2d at 474, 478. Defendant contends that
because the no-fault insurance policy in Dines did not include an
exclusion similar to the one here and in Ragil,™ Dines is
Lnapposite to the case at bar.
In Dines, the plaintiff, who was operating a motorcycle
at the time of the accident, was injured by an unidentified hit
and-run driver of an automobile. 78 Hawai'i at 326, 893 P.2d at
177, Plaintiff attempted to obtain uninsured motorist benefits
from the defendant, his motor vehicle insurance provider. Id.
The plaintife’s insurance policy lacked an exclusion similar to
the case at bar. However, the plaintiff did have a separate
motorcycle insurance policy provided by ancther defendant
insurance provider. ‘The motorcycle insurance policy,
however, did not include any optional uninsured motorist coverage
because the plaintiff had expressly rejected such coverage. Id.
A majority of this court held that the plaintiff
motorcyclist could recover uninsured motorist benefits from his
motor vehicle insurance policy. In overruling Ragil, the
majority stated that
[blecause [the Baail court] focused solely on the
Jegislature's distinct statutory mechaniams for insuring
“me policy exclusion in Raail stated “Ile do not provide
Liabiiity Coverage: . . 8 For the omership, maintenance or use of any
otorized sehicle having less than four wheels.” “72 Hawai'i at 210, 12 F.2
ae 475-76;
40
‘***FOR PUBLICATION*#*
‘motor vehicles" (HRS ch, £31:20C) and motorcycles (HRS ch.
aBisi0c), th
Benefits of the [uninsured motorist coveraae that ang ©
431:10C-301(b) G1 "1 nandates an_autanobile insurer to,
ifer and for which the naped inaured has paid.
Dines, 78 Hawai'i at 331, 893 P.2d at 162 (emphasis added).
Significantly, the Dines majority held that uninsured motorist
insurance coverage “attaches to the named insured’s person and
not to any particular vehicle - ‘motor’ or otherwise.” Id.
(emphasis omitted). In support of this principle, the Dines
majority looked to the policy embodied in the uninsured motorist
0C~301 (b) (3) mandates that the
statute, noting that “HRS § 431:
insured vehicle (ise,, the ‘covered auto" named in the policy)
need not be involved in the accident in order for the named
Insured to be entitled to collect [uninsured motorist]
benefits{.]” Id, at 328, 693 P.2d at 179. See also Daves, 77
Hawai'i at 124, 883 P.2d at 45 (1994) ("The public policy
embodied in the [uninsured motorist] statute directs that
uninsured motorist coverage be provided to insureds when they are
% uRs § 431:10C~301 (b) (3) (Supp. 1992), which 48 the sane today a
it was when Dinss was decided states, in pertinent part:
Required motor vehicle policy coverage
(bi Amotor vebicle insurance policy shall include:
“** (3) With respect to any motor vehicle registered
or principally garaged in this state, 1iabilicy
= for bodily injury or death. for
Soverage »
fhe protection of persons insured thereunder whoare
Legally entitled te recover danaaes from owners or
‘because oF
Boatiy injury. + resulting therefrom; provided that
the coverage requized under this paragraph shall not
be applicable wnere any named insured in the policy
shall reject the coverage in writing]
(Emphases added.)
a
***FOR PUBLICATION*#*
ee
not occupants of insured vehicles as well as when they are. . .
‘The coverage is portable: The insured and family members.
axe insured no matter where they are injured, They are insured
when injured in an owned vehicle in the policy, in-an owned
vehicle not named in the policy, in an unowned vehicle, ona
motorcycle(.1'" (Emphases added.) (Quoting Harvey v, Travelers
Indem, Co., 449 A.2d 157, 159-60 (1982))). Accordingly, Dines
concluded that when a named insured is “injured by an uninsured
motorist from whom the named insured is legally entitled to
recover damages,” the named insured “is entitled to (uninsured
motorist} coverage no matter where he or she is injured, be it in
an automobile or a rocking chair on a front porch, or ona
motorcycle, a bicycle, a horse, @ pogo stick, or on foot.” Id.
at 331-32, 893. P.2d at 182-83 (footnote omitted) (emphasis
added) «
In light of the foregoing and the premise that
Hawai'i’s legislature intended to treat underinsured motorist
coverage “in the same manner that uninsured motorist coverage is
presently treated,” Tavlor, 90 Hawai‘i at 308, 978 P.2d at 746
(quoting Hse. Stand. Comm. Rep. No. 1150-88, at 1248) (block
format omitted), the court correctly determined that because
Defendant’s exclusion attempted to limit Plaintiff's entitlement
to underinsured motorist coverage, the “less than four wheels”
exclusion is inconsistent with the holding in Dines and is,
therefore, void as against public policy.
42
FOR PUBLICATION*#*
c.
As to the “reasonable belief” exclusion, Defendant
claims that Exclusion No. 7 of the Policy is applicable in the
instant case, Exclusion No, 7 states that Defendant does “not
provide [uJninsured (mJotorist coverage for property damage or
bodily injury sustained by any person . . . (uJsing a vehicle
without a reasonable belief that the person is entitled to do
80." Defendant argues that Plaintiff could not have reasonably
believed that he was entitled to operate a motorcycle because, at
the time of the accident Plaintiff was in violation of HRS SS
286-102, 286-110(e), and 286-116 (1993 and Supp. 1998) .**
As previously noted, the court concluded that the
reasonable belief exclusion was inapplicable in the case at bar
because the language of the exclusion is “susceptible of at least
three interpretations” and is therefore “ambiguous” and must be
"HRS § 286-102 provides, An relevant part, that:
(z) Mo_person. shall operate anv category of
soeeoaet aly Iceni
7b) & peison operating the following category or
conbination ef categories of motor vehicles ahall be
ro by
the examiner of drivers?
""" (2) Motercveles and motor scooterst.}
(Emphases added.)
HES § 286-110(e) states, in relevant part that
uetion permit evele of motor scooter
uring hours of darkness ox carry ay Dassenders.” (Emphases added.)
Ne $ 286-116) provides, in relevant part, ‘that
wwe aval in the’ Licensee's innediate possession at
sub tim
civ" tenpraste saeea
43
‘**#P0R PUBLICATION*#*
ee
wstrictly construed against [Defendant]."” Alternatively, the
other jurisdictions have referred to clauses like Exclusion No. 7
.s “permissive use” exclusions, sag, sic, laverane v. Thonaa, 758 So: 24 197,
3oo-81 ie, ce. App. 2000). (analyzing applicability of “reasonable belief”
aeepeion in Light’ of whether the driver had permission of the insured to use
SkelSktoneblie ae the time of the accident}, or “entitlement” exclusions.
Eee, ene, Goodsan 2. Bradbiry, 3 Ps. D. & C.dth 605, 607-08 (1989)
Sat, Suds Seanatrcoen sperniseive use” and “reasonable belief to entitlenent
Agee 7exclusions snd holding that “[allthough one can obtain en over’ s
Sernission to operate e venicie without being licensed, one cannot have @
Dereistaie belief cf entitlement to operate any vehicle without @ valid
Whether labeled a “permissive use” or an “entitlenent” exclusion,
Je held that the language ia “susceptible” of various
(eeerpretations. Murat v, Grange titual Cas Cox, 470 8.6.24 659) 663. (Ge
Soe? in dugse, the Gootesa Suprese Court held that en exclusion identical
to Exclusion ter 7 was “susceptible of three Logical and reasonable
Uncerpretations”
[(a)} that the user must be authorized by law to drive in
Giger to reasonably believe he is entitied to use e vehicley
Tid] that the user must have the consent of the owner oF
Sgpatent omer in order to reasonably believe he is entitled
Gohise the vehicle; of, [(3)] that the user must have both
SGnsene and lege! authorization in order to be entitled to
se the venicle,
470 8.8.24 at 663. See, gue, 4 » $39. NW.2d
120, 918" (rowa. 1398) texplaining that the term “entitled” in the exclusion
NeSu1d mean Legal right or authority to drive under the applicable law
“ould mee consent’ of spersigsion’ from the vehicle ower. . (1 or) both
Consent and legal entitlement”); Aetns . 7 se
B52 goes 28 377, 379 (tic, 1990) (eeating cnat “the fact thet [the driver]
FBS. that he had no’ legal right to drive, is distinguishable from the
Uspositive question under the policy exclusion of [the driver's) reasonable
BETECESE’Selng “eneitied’ to crive the vehicle based upon the permission of
the person in possession of the vehicle”); Georgia fare Bu : z
Soto beara ins’ cos, $36 8.£.28 258, 253-60 (Ga. Ce. App. 2000) (quoting
Hurst, {70 S.e-2a s¢ 663); Canadian’ tndem, Co, Hatlio, 727 F.2d 35, 37
HEE Se) app, 1986) (reasoning that tne entitlement "exclusion at issue here
ES EceEly aRbigueusvas shown by the divergent intezpretations given to it by
the pertics and the trial court”); and State Auto, Mut. Ins. Cov. Ellis, 700
S'w.ba 801, 802 (ky. Cts App. 1985) (noting ambiguity of the exclusionary
Longuage Because "{e)he policy does not... specify whether ‘entitled’ means
singj"Socaining permission from the ower of the vehicle or whether a valid
{icande fron the applicable state would also be required to avoid exclusion
from coverage”) «
‘Sther jurisdictions, however, have held that “entitlement”
exclusions are unambiguous. See’ Smith v. Cincinnati Ine. Cou, 763 N-.24 $99,
G05 (Inds Cea App. 2002). (stating “entitienent” exclusion is “unanbiguous”);
% Ete N,wad 226 (tien. Ce- App. 1998) (concluding that plain
HRRtge of exciusion “is not ambiguous and determining that “rational minds
would agree thet [tne driver], en underage, unlicensed, inexperienced driver,
tee hot entitied' to drive the automobile); end Quah Prop, & Cas, Ine. Cow
qepateraan, B65 5.420 709, 780-91 (ho. Ct. App. 1993) (concluding exciusion
SSEEESER, .Guous’ and applying “two-part analysis: (1) whether the driver
hed a subjective belief thet he or ahe was entitled to use the car, and (2)
Whether this belief was reasonable”). We express no opinion as to whether
(eontinved. -.)
“4
‘***POR PUBLICATION*#*
court also determined that the reasonable belief exclusion was
inapplicable because “(Defendant’s] exclusion of only [uninsured]
coverage, but not [underinsured motorist] coverage in
sonable belief exclusion” means the rt
(Defendant? s) ri
belief exclusion does not apply to “(underinsured motorist)
coverage, or . . . creates an anbiguityl.]”
Defendant failed to present argument as to this
alternative basis for the court’s ruling that the reasonable
belief exclusion was inapplicable and failed to sustain its
burden of denonstrating error. Therefore, this point was
“waived” on appeal pursuant to Hawai'i Rules of Appellate
Procedure Rule 28(b) (7)-
XIII.
In conclusion, for the reasons discussed, the June 19,
2002 judgment is affirmed.
on the brief:
Myles 7. Yamanoto, :
Terrance M. Revere & Tlic
Jacqueline E. Thurston
(Love Yamamoto. & Notooka) Desc Crags ce
for defendant-appel lant. !
Alan Van Etten & Mark 6.
Valencia, (Damon Key Leong
Kupchak Hastert) fer
plaintiff-appellee. pucciobcromy
P(. scontinues)
auch an exclusion 18 ambiguous or net anbiguous
45
|
3b85b34f-eb8b-4a5c-8e31-8b203c92290e | State v. Ugalino | hawaii | Hawaii Supreme Court | LAW UpRaRY
No. 25545
IN THE SUPREME COURT OF THE STATE OF HAWAI'E: 3
STATE OF HAWAI'I, z
Plaintiff-Appellee-Pet{tioner, c
vs. 5 =
REYNALDO UGALINO, g
Defendant-Appellant-Respondent,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 01-1-0816(1))
DE WING APPI N_FOR Ws
(By: Levinson, J., for the court")
Upon consideration of the application for a writ of
certiorari filed on April 26, 2005, by the plaintitt-appelié
petitioner State of Hawai'i, the same is hereby denied.
DATED: Honolulu, Hawai'i, May 5, 2005.
FOR THE COURT:
STEVEN H, LEVINSON
Associate Justice
Arleen Y. Watanabe,
Deputy Prosecuting Attorney,
on the writ
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 33.
|
f591b900-9d46-4d5a-b386-d0958b8c1938 | State v. Miller | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOT FOR PUBLICATION ***
No. 27121
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Petitioner-Appellee : .
CHARLES MILLER, Respondent~Appellant.
APPEAL FROM THE FIRST CIRCUIT COURT
(8.P. NO, 04-1-0242)
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that S.P. No. 04-
1-0242 was a circuit court civil proceeding governed by the
Hawai'l Rules of Civil Procedure. See HRS § 846E-3(d); HRCP 1.
The circuit court’s January 13, 2005 order was not reduced to a
separate judgment, as required by HRCP 58. See Jenkins v, Cades
Schutte Fleming & Wright, 76 Hawai'i 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
‘Thus, the appeal of the January 13, 2005
pursuant to HRCP 58).
‘Therefore,
order is premature and we lack jurisdiction.
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, May 27, 2005.
|
43533710-cdcc-4d8a-b103-c2d3f277d0e5 | State v. Valencia | hawaii | Hawaii Supreme Court |
No, 26140
IN THE SUPREME COURT OF THE STATE OF HAWAI'T. =‘
STATE OF HAWAI'I, Plaintiff-Appellee -
ANTHONY K. VALENCIA, Defendant-Appellant
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 0-1-2502)
‘ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, J)
Upon consideration of Defendant-Appellant Anthony K.
Valencia’s motion to dismiss the appeal, the papers in support,
and the records and files herein, it appears that Appellant
1 and the
understands the consequences of dismissing his appt
request to dismise his appeal is voluntary. Therefore,
IT IS HEREBY ORDERED that the motion to dismiss appeal
is granted, and this appeal is dismissed pursuant to HRAP.
Rule 42(c).
DATED: Honolulu, Hawai'i, May 2, 2005.
sae ctendant appellant
Dose Grant
eae
Yom, Rey bre
|
e2a42860-3b22-40cf-a13b-e892cf3e5614 | Parnar v. Hilton Hotels Corp. | hawaii | Hawaii Supreme Court | No. 27244
IN THE SUPREME COURT OF THE STATE OF HAWAI'I” >
avn site
EUGENIE PARNAR, Petitioner
HILTON HOTELS CORFORATION, Member of and agentsl > B
for Hilton Hawaiian Village, LLC, formerly known as
Wilton Hawaiian Village Joint Venture, Respondent
ORIGINAL PROCEEDING
(CIV. NO. 1RCO4~1~4925)
Nc "OR MRI
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Eugenie Parnar’s
petition for writ of mandamus and the papers in support, it
appears that: (1) in this petition, Petitioner asks this court
to order the district court to vacate the judgment of possession
and the writ of possession entered in Hilton Hotel Comm, vi.
Parmar, Civil No. 1RC04-1-4925; (2) Petitioner has a pending
appeal from the judgment of possession and the writ of possession
entered in Civil No. 1RCO4-1-4925; and (3) a petition for writ of
mandamus is not intended to take the place of an appeal.
Therefore,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied without prejudice to Petitioner raising any
points of error in her pending appeal.
DATED: Honolulu, Hawas"i, May 13, 2005.
Eugenie Parnar,
petitioner, pro se,
on the writ
aaw
A
|
19ddfe57-544c-48aa-99d0-5e473ad11609 | State v. Shaw | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘*** NOT FOR PUBLICATION
No. 26814
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Petitioner-Appellee — ~
aa
MICHAEL SHAW, Respondent-Appellant
APPEAL FROM THE FIRST CIRCUIT COURT
(8.B. NO. 04-1-0178)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that S.P. No. 04~
1-0178 was a circuit court civil proceeding governed by the
Hawas's Rules of Civil Procedure. See HRS § 846E-3(d); HRCP 1.
The circuit court’s August 18, 2004 order was not reduced to a
separate judgment, as required by HRCP 58. See Jenkins v. Cades
Schutte Fleming 4 Weight, 76 Hawai'i 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 August 18, 2004
order is premature and we lack jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, May 27, 2005.
|
81dd40c5-3296-4049-a9fd-3cc22f65e1a5 | Donnelly v. Donnelly | hawaii | Hawaii Supreme Court | LAW LIBRARY
3 =
NO. 25880 =
SF 5 2
IN THE SUPREME COURT OF THE STATE OF HAWAI‘E 2 hh
ae
ss
JO ANN QUON DONNELLY, Respondent-Plaintiff-Appebant
Petitioner-Defendant-Appellee
WILLIAM HORACE DONNELLY,
ee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(EC-D NO. 99-0236)
wr108
ATION way
)ADER_DENYING
for the court!)
(By: Nakayama, J.,
Petitioner-Defendant-Appellee’s application for writ of
certiorari filed on April 27, 2005, is hereby denied.
Honolulu, Hawai'i, May 9, 2005.
FoR THE COURT:
Purcrraenryore
Associate Justice
DATED:
R. Steven Geshell
for petitioner-defendant-
appellee on the writ
jana, Acoba, end Duffy, 33.
Yconeidered by! Moon, C.J. Levinson, Nai
|
fb91b311-96d6-403a-b961-242eeda43511 | Marshall v. Ferreira | hawaii | Hawaii Supreme Court |
NO. 26444 "AY O5 2005
IN THE SUPREME COURT OF THE STATE Op gnas'? —/
CHERYL 8. MARSHALL, tka cHeneL 5. FERRERE
Plaintiff Appelee/Gross. Appel lant
2
-
m
°°
NELSON C. FERREIRA,
Defendant-Appel lant /Cross~Appellee =
APPEAL FROM THE SECOND CIRCUIT COURT
(FC-D NO. 01-1-0608)
ORDER GRANTING MOTION TO DISMIss
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of Defendant-Appel lant /Cross-
Appellee Nelson Ferreira’s motion to dismiss his appeal, the
Papers in support, and the records and files herein,
IT IS HEREBY ORDERED that Defendant-Appellant /Cross-
Appellee Nelson Ferreira’s motion to dismiss his appeal is
granted, and Defendant-Appellant/Cross-Appellee’s appeal is
dismissed. The notice of appeal filed by Plaintiff-
Appellee/Cross-Appellant Cheryl S. Ferreira remains pending. see
HRAP Rule 4.1(d).
DATED: Honolulu, Hawai'i, May 2, 2005.
Nelson C. Ferreira,
beer Sow
ae
cross-appellee,
Pro se, on the motion
Neste 6otreeunpanee
NS
Cone Resin
|
86830954-8086-435d-b656-d765db6da26f | State v. Cornett | hawaii | Hawaii Supreme Court |
No, 25738
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Plaintiff-Appellee
vs.
1s
Bi
21 AvHSOO2
KELLI CORNETT, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE SECOND og ir
(FC-CR NO. 021-0803) a
oats
WAL OF
(By: Moon, C.J-, Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the motion to dismiss the appeal
of Defendant-Appellant Kelli Cornett and for withdrawal of
counsel, the papers in support, and the records and files herein,
At appears: (1) on April 3, 2003, a notice of appeal was filed on
behalf of Appellant; (2) since that time Appellant has failed to
remain in contact with her attorney or the trial courty (3) all
letters sent to Appellant at her last known addresses were
returned to senders (4) Appellant did not respond to messages
left at her last know telephone number; and (5) Appellant has
abandoned her appeal. Therefore,
IT IS HEREBY ORDERED that the motion to dismiss appeal
is granted, and this appeal is dismissed pursuant to HRAP Rule
42(c)-
IT IS FURTHER ORDERED that the motion to withdraw as
counsel is granted.
DATED: Honolulu, Hawai"i, May 12, 2005.
cynthia A. Kagiwada
for defendant-appellant GD
on the motion
Dita Co raetoey ane
em
Yorn « uaa
|
4313d630-e9a9-4239-8a66-2faff3923808 | State v. Lono | hawaii | Hawaii Supreme Court |
No. 25241
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Plaintiff-Appellant g
=
Ne = 8
TIOLU LOND and TOSEFO FALANIKO, Defendants-Apgaifees SE
Se 2 OG
ag
APPEAL FROM THE FIRST CIRCUIT COURT
(CR NO. 01-1-2680)
OF
(By: Nakayama, J.)
Upon review of the sunmary disposition order filed on
it appears that the court appealed from and the
March 22, 2005,
case number on the first page of the Sunmary Disposition Order
was incorrect. The correct court appealed from and the criminal
‘Therefore,
number are noted above.
IT IS HEREBY ORDERED that the clerk of the court shall
incorporate the foregoing changes in the original summary
disposition order.
DATED: Honolulu, Hawai'i, May 12, 2005.
Pease Cues |
Associate Justice
|
ea3b5aff-6334-4330-a849-1dcf932aaf33 | Vu v. Chang | hawaii | Hawaii Supreme Court | LAW Limam
No. 27251
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
KENNETH K. VU, M.D.; HAWAII CENTER FOR REPRODUCTIVE
MEDICINE & SURGERY, LLC: ANGELIQUE LOPEZ, Petitioners
GARY W.B. CHANG, Judge of the Circuit Courti®)
Of the First Circuit, Respondent
i
ORIGINAL PROCEEDING
(cIV. NO. 03-1-1381-07)
2 AV S002
846 Ly
a
(By: Moon, C.3-, Levinson, Nakayama, Acoba, and Duffy, JJ.)
pon consideration of Petitioners’ withdrawal of their
Application for a Writ of Prohibition pizecting the Circuit Court
of the First Circuit to Dismiss Civil No. 09-1-1381-07, the
papers in support, and the records and files herein,
11 IS HEREBY ORDERED that the withdrawal is approved,
and the application for a writ of prohibition ie disnissed.
DATED: Honolulu, Hawai'i, May 24, 2005.
Kenneth 8. Hipp,
Sarah 0. Wang, and oor
Malia B) Kakos (of
Marr Hipp Jones & Wang) MRL ene
and vanes J. Bickerton
‘of Bickerton Saunders
Dang & Sullivan) for Nets C1 ruetiney line
petitioners on the
withdrawal GN
Yoon £. Betty Oh
oe
|
888aec43-dd38-419c-9980-1dbdbaa9f016 | State v. Ramirez | hawaii | Hawaii Supreme Court |
No, 26371
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAI'I, Respondent /Plaintiff-Appellant
KEVIN RAY RAMIREZ, Pet itioner/Defendant-Appellee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 03-1-228K)
ORDER DENYING APPLICATION FOR WRIT OF CERTIORARI
(By: Duffy, J. for the court")
Petitioner/Defendant-Appellee’s application for writ of
certiorari filed on May 16, 2005, is hereby denied.
DATED: Honolulu, Hawai'i, May 26, 2005. -
FOR THE COUR’
Gmen &. Duet bo -_)
Associate Justice
Victor M. Cox
for petitioner/defendant-
appellee on the writ
considered by: Moon, C.J.» Levinson, Nakayama, Acoba, and Duffy, 39.
|
26931150-f311-493b-bfc5-03b4ddfcf803 | Bradford-Foley v. Foley | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
no. 27039
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
STEPHANIE J. BRADFORD-FOLEY, nka STEPHANIE J. DIGGS,
Plaintiff-Appellant
JAMES MICHAEL FOLEY, Defendant~Appellee
=
£
c
APPEAL FROM THE FAMILY COURT OF THE FIRST COURT =
(FC-D NO. 97-2496) -
(ey: Moon, C.J. Levinson Nakayama, ACoba, and Duffy, JJ.)
Upon review of the record, it appears that the
Novenber 3, 2004 order denying the October 15, 2004 motion for
post-decree relief and avarding attorney's fees and costs was an
appealable final order under HRS §§ 571-54 and 641-1(a). The
tine for appealing the order was extended by the Novenber 12,
2004 motion for reconsideration, which extended the time for
appea} until entry of the Novenber 23, 2006 order denying the
notion for reconsideration. See HRAP 4(a) (3). The January 3,
2008 notice of appeal was filed nore than thisty days after entry
of the Novenber 23, 2004 order and is an untinely appeal of the
Novenber 3, 200¢ order and the Novenber 23, 2004 order. See HRAP
41a) (3). the failure of an appellant to file 9 timely 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. Bacon v. Karlin,
* NOT FOR PUBLICATION ***
68 Haw, 648, 650, 727 P.2d 1127, 1128 (1986). Thus, we lack
jurisdiction over this appeal. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, April 20, 2005.
Z .
SER
Peete Lendl Cute
ooo
Were rnat
|
f28715ab-cf5e-4a69-b76a-892b402b07ac | Hutch v. Lingle | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION ***
No, 26856 -
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
se
EUGENE JAMES HUTCH, Plaintiff-Appellant
GOVERNOR LINDA LINGLE, et al., Defendant s-Appell
SSS
APPEAL FROM THE FIRST CIRCUIT. COURT
(CIV. No, 03-21-0908)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, oJ.)
Upon review of the record, it appears that final
judgment has not been entered in Civil No. 03-1-0908. The appeal
of the purported denial of the motion for a complete copy of the
complaint is an appeal of an interlocutory matter that is not
appealable pursuant to HRS § 641-1(a). Thus, this appeal is
Premature and we lack jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, April 12, 2005,
bee pliirnse—
Peaweues Core Bb
2
Yom s Dntty he
|
7552b02a-2eab-4b5f-9732-067f2c94d608 | State v. Quiocho | hawaii | Hawaii Supreme Court | No, 26237
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ee
STATE OF HAWAI'I, Respondent /Plaintif£-Appellee
ue
itioner/Defendant-Appellant
2ENNA QUIOCHO,
and
ROKEUAINA LETUA, Defendant
eee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-1178)
ry Lon FCI
ORDER
‘Acoba, J., for the court*)
‘The Application for Writ of Certiorari filed on
April 13, 2005 by Petitioner/Defendant-Appeliant Zenna Quiocho is
hereby denied.
DATED: Honolulu, Hawai'i, April 25, 2005.
FOR THE COURT:
aasociate Justice \
Keith 8. Agena (Char
Sakamoto Ishii Lum & Ching),
on the writ.
Considered by: Meon, C.J. Levinson,
putty, 391
|
a8165d10-66cf-4e64-baf7-23ed1c85196f | Doe v. Roe | hawaii | Hawaii Supreme Court |
No. 27088
JOHN DOE and JANE DOB, husband and wife,
Petitioners-Appellants
a3tsa
MARY ROE; RICHARD SMITH; and
GOVERNMENTAL AGENCY, Respondents-Appel le
ORY 2— avn se
0
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FO-M NO. 04-1-0752)
2 LONBRS=1 g
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioners-Appellants’ motion
for dismissal of their appeal, the papers in support, and the
records and files herein,
3D 1S HEREBY ORDERED that the motion for dismissal of
appeal is granted, and this appeal is dismissed pursuant to HRAP
Rule 42(b). The parties shall bear their own costs and fees.
DATED: Honolulu, Hawai'i, May 2, 2005.
Michael A. Tongs
for petitioners” Grr—
appellants on the
motion .
|
89f96422-4346-4517-b2ec-174ebdc3a72e | Office of Disciplinary Counsel v. Barrad | hawaii | Hawaii Supreme Court | No. 27247
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
ve. a
CATHERINE M. BARRAD, Respondent. §) =
(ope 01-141-6885)
°
‘ORDER OF SUSPENSION s
By: Moon, C.J., Levinson, Nakayana, Accba, and Duffy, JJ.)
upon consideration of the Disciplinary Board’ s Report
and Recommendation for the Suspension of Catherine M. Barrad, the
exhibits thereto, the stipulation, and the record, it appears
that Respondent Barrad neglected a client’s case and failed to
supervise her staff and that such neglect resulted in multiple
violations of Rules 1.1, 1.3, 1.4(a), 1-4(b), 2.15(£) (4),
1.16(d), 3.2, 5.3(b), and 8.4(a) of the Hawai'i Rules of
Professional Conduct. An attorney’s neglect of a legal matter
warrants disciplinary action, see Office of Disciplinary Counsel
veKagawa, 63 Haw. 150, 156, 622 P.2d 115, 119 (1961). Te
further appears that there are strong mitigating circumstances
Therefor:
and equally strong aggravating factors in this ca
IT IS HEREBY ORDERED that Respondent Barrad is
suspended from the practice of law in this jurisdiction for a
period of three (3) months, effective thirty (30) days after
entry of this order, as provided by Rule 2.16(c) of the Rules of
the Supreme Court of the State of Hawai'i ("RSCH”). Respondent
Barrad is reminded that she may not resume the practice of law in
Hawai'i until she is reinstated by order of this court. See RSCH
2.171).
aang
IT TS FURTHER ORDERED that, as a condition of her
reinstatement, Respondent Barrad shall reimburse the Disciplinary
Board for the costs associated with this proceeding, as
determined by this court after timely submission of a bill of
costs. See RSCH 2.3(c).
IT IS FINALLY ORDERED that Respondent Barrad shall,
within ten (10) days after the effective date of the suspension
order, file with this court an affidavit in full compliance with
RSCH 2.16(d)
DATED: Honolulu, Hawai'i, May 16, 2005.
|
ecb4b302-8f8f-4aec-b94d-5837431a9f0e | Office of Disciplinary Counsel v. Smith | hawaii | Hawaii Supreme Court |
No. 27083
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
ANTONIA G, SMITH, Respondent. ei: =
saz
(onc 05-004-8156) 2
2
QRDER OF DISBARMENT ~
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the Office of Disciplinary
Counsel's ex parte petition for issuance of reciprocal discipline
notice to Respondent Antonia G. Smith, pursuant to Rule 2.15(b)
of the Rules of the Supreme Court of the State of Hawai'i
("RSCH”), the menorandun, affidavits, and exhibits thereto,
Respondent Smith’s lack of response to our February 8, 2005
notice and order, and the record, it appears that: (1) on
October 12, 2004, the Supreme Court of California entered an
order that disbarred Reapondent Smith from the practice of law in
california and ordered that her name be stricken from the roll of
attorneys licensed to practice in that States (2) such disbarment
of an attorney in California is identical to an attorney's
disbarment in Hawai'i, see RSCH 2.3(a) (1)s and (3) a similar
discipline is warranted in this jurisdiction, pursuant to RSCH
2.18(c). Therefore,
IT IS HEREBY ORDERED that Respondent Antonia G. Smith
is disbarred from the practice of law in the State of Hawai’
pursuant to RSCH 2.15(c). Respondent Smith's disbarment is
aawds
effective upon entry of this order.
IT IS FURTHER ORDERED that (1) the Clerk shall remove
the name of Antonia G. Smith from the roll of attorneys licensed
to practice law in this state, and (2) within ten (10) days after
the entry of this order, Respondent Smith shall deposit with the
Clerk of this court the original certificate evidencing her
License to practice law in this State.
IT IS FINALLY ORDERED that Respondent Smith's
reinstatement shall be conditioned (1) upon payment of all costs
of this proceeding, (2) compliance with the conditions imposed by
the Supreme Court of California, and (3) Respondent smith’ s
reinstatement in California.
DATED: Honolulu, Hawai'i, May 2, 2005.
|
4d2a6b01-f92b-4581-94d8-218770cbd56c | Brown v. State | hawaii | Hawaii Supreme Court |
No. 26988
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
JOSEPH CHESTER BROWN, Petitioner-Appellant 4 g
Belz
vs. Br 3
ft 5
STATE OF HAWAI‘I, Respondent-Appellee z5/z ©
APPEAL FROM THE FIRST CIRCUIT COURT
(8.P-P. NO. 04-1-0062)
Nt SIDE!
(ay: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the motion for reconsideration of
the March 22, 2005 order dismissing appeal, the papers in support
and the record,
IT IS HEREBY ORDERED that the motion for
reconsideration is denied.
DATED: Honolulu, Hawai'i, april 18, 2005.
Ye
Saranac
Pree, Nery Corre
a
Wor «esas
IBRARY
O3Ng
|
cd463dff-a74e-4bb5-a2b4-3f6818234177 | Bishop Square Associates v. Moniz | hawaii | Hawaii Supreme Court |
LAW LIBRAR
No. 20564
IN THE SUPREME COURT OF THE STATE OF HAWAII
“SS prSHOP SQUARE ASSOCIATES, Plaintitt-appelied) —
xe =
. S2 of om
STACY MONIZ, Defendant-Appellant 34/5 =
si 2 om
age = Co
and a 8
=
es
SUGIMOTO, MONIZ & SHIKUMA, Attorneys-At-Law, A Law
Partnership; BRIAN SUGIMOTO and CRAIG SHIKUNA, Defendant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. NO. 1RC96~5403)
‘ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Defendant-Appellant Stacy Moniz’s
motion to dismiss his appeal, the papers in support and the
records and files herein, it appears the judgment being
challenged in this appeal was discharged in bankruptcy, and
Therefore,
Appellant no longer wishes to pursue this appeal.
IT IS HEREBY ORDERED that the motion to dismiss the
‘The parties
appeal is granted, and this appeal is dismissed.
shall bear their own costs and fees.
Honolulu, Hawai'i, May 4, 2005.
pareo:
Stacy Moniz,
defendant-appellant, Grn
Pro se, on the motion
Mice GRliraae
|
d4709b19-2a6a-42b0-9d5d-318d2ceda06d | Association of Apartment Owners of Maalaea Kai, Inc. v. Stillson. Dissenting Opinion by J. Nakayama with whom C.J. Moon joins. [pdf]. | hawaii | Hawaii Supreme Court | LAW LISRARY
FOR PUBLICATION***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00:
ASSOCIATION OF APARTMENT OWNERS OF MAALABA KAI, INC.,
Plainté¢f/Counterclain Defendant~Appellant
‘THOMAS HAYDEN STILLSON; PHYLLIS ANN PAYNE-STILLSON,
fka PHYLLIS ANN PAYNE, Defendants/Counterclaimants-Appellees
and
PIONEER FEDERAL SAVINGS BANK; JOHN DOES 1-50;
JANE DOES 1-507 DOE PARTNERSHIPS 1-50; DOE
CORPORATIONS 1-50; DOE ENTITIES 1-50 and DO 2
GOVERNMENTAL UNITS 1-50, Defendants |
(Nos. 23932 6 24257) ge of oa
ER OE
no. 23932 23 §
APPEAL FROM THE SECOND CIRCUIT COURT iF
(CIV. NO. 96-0782) 3
guLY 22, 2005
LEVINSON, ACOBA, AND DUFFY, JJ.; AND
NAKAYAMA, J., DISSENTING, WITH WHOM MOON, C.J., JOINS
OPINION OF THE COURT BY ACOBA, J.
We hold (1) Hawai'i Revised Statutes (HRS) § 514C-6(a)
requires lessees of condominium units to which 75% of the common
Anterests are appurtenant to approve of a leased fee purchase,
(2) because HRS § $14C-6(a) is silent on the method of
calculating the votes of multi-owner units, the bylaws of an
association of apartment owners may govern on how the votes are
to be calculated so long as not violative of any law, (3) if any
defects affected the approval process, the 75¢ requirement was
‘**sFOR PUBLICATION*#*
satisfied by the lessees’ subsequent ratification of the previous
vote when they executed deeds necessary for conversion, and
(4) pursuant to HRS § 514C-6(a) (3), an association of apartment
owners may assess a “conversion” surcharge in “a fair and
equitable manner” against lessees who oppose the fee purchase
Becau:
the Novenber 23, 2000 order of the Circuit
Court of the Second Circuit! (the court) granting partial summary
judgment to Defendants/Counterclaimants-Appellees Thomas Hayden
Stillson and Phyllis Ann Payne-Stillson (collectively, the
Stillsons), who opposed the leased fee purchase of the Maalaea
Kai condominium, did not comport with the representative-vote-
per-unit method set forth in the bylaws of Plaintiff /Counterclaim
Defendant-Appellant Association of Apartment Owners of Maalaea
Kai, Inc. (the Association), the order and the court's
December 27, 2000 judguent and its May 2, 2001 amended final
judgment are vacated, and this case is remanded for the court to
enter an order (1) denying the Stillsons’ motion for partial
sunmary judgment and (2) granting the Association's cross-motion
for summary judgment as to the 758 requirement. Also, consistent
with such vacation of the Novenber 28, 2000 order and because the
court found the conversion surcharge levied on the Stillsons was
inequitable without setting forth the grounds for its findings,
the case is remanded to the court to decide whether the
1 the Honorable Shackley F. Raffetto presided.
2
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ee
Association assessed the surcharge against the Stillsons in “a
fair and equitable manner.
I
‘This 4s the second appeal in a case that began as a
foreclosure action brought by the Association against the
Stillsons. on September 25, 1996, the Association filed a
complaint to foreclose on the Stillsons’ Maalaea Kai condominium
apartment for failure to pay a monthly conversion surcharge
jed fee interest
relating to the Association’s purchase of the 1
of the Maalaea Kai condominium project. On February 28, 2000,
this court issued a memorandum opinion vacating the circuit
court's judgment in favor of the Stillsons. AOAO Maalaea Kal,
Inc. v. Stillson, No. 22310 (Feb. 28, 2000) (mem.) [hereinafter,
“Memo op.”J]. ‘The memorandum opinion set forth the following
pertinent facts:
fon October 7, 1974, the Stilleons acquired fee simple
titie to apartment’ 209 at the Maalaea Kai condoniniun
project (the “Project”) and an appurtenant undivided 1.43068
Eiterest in the Project's common elements. The Stillsons
wore granted a leasehold estate in the Land appurtenant to
Their vapartaent.. The leasenold estate, created by the
Jesse, hae one of seventy=nine
representing each of the Projet
apartments.
fee interest “subject to the approval of the Apartment
Owners. ss constituting 70¥(1] of the common interest in
tthe Project.”
(On duly 17, 1995, the Board [of Directors of the
Association] sent @ second letter to the apartnent owners,
foting that “the lessor has now taken the position that it
[S'unwilling te consider an offer contingent upon 700 of the
onners agreeing to purchase their share of the leased fee
+ the basis for the 708 figure is unclear,
3
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interest from the Association.” The Association issued a
Suritten consent balls” in
g San Salman a eh
Rssociation to make an offer to curchase the Lessors
or the
Gbteraat,” The Stillsons voted “against” the amendnent- On
August Ii, 1995, the Assoclaticn’s Bylaws were amended to
Eenove the seventy percent participation requirement. On
February 23, 1996, the Association acquired the leased fet
5" January 31, 1996, the Stillsons were notified that
theix sonthly payment of maintenance fees would increase due
fo "the Association's purchase of the fee,” The incre
Included 2 $276.00 monthly “conversion surcharge,” which was
equal to the Stillson's proportionate 1.43068 interest in
the Project’ connon elements. The Stillsons did not pay
the conversion surcharge.
Gn’ séptenner 25, 1996, the Association filed 2
complaint against the Stillsone . . + (seeking) foreclosure
on the stilisons! spartment.
Gn’ November 13, 1996, the Stillscns filed their answer
and counterclaim. In their counterclaim, the stilisons
Slieged, in Count 1, that the Association had violated HRS §
Slecse |. . by requiring them to pay fee conversion
Burcharges and to service the Association's fee conversion
dene
Gn’ sa1y 32, 1997, the Stitisons f1led a motion for
sunmary Judgment on Count I of their counterclaim... . On
October 8, 1997, the circuit court entered an order denying
the Stilléon{s"} motiont.)
Gn’ ecember 1, 1997, the Stillsons filed a motion for
summary Judgment on Count’ IIT of their counterclaim. The
Stiliacna’ central argument was thet, Lnasmich as “purchase
Of the fee interest altered the common elements], tne
Aasociation was required to obtain the consent of all.
Condoniniun owners” prior to purchasing the interest,
Pursuant to MRS § S14A-13{.] « - . On vanuary 15, 1998, the
Eireuit court entered an order granting the Stilisons!
motion. «=
Meno op. at 3-7 (brackets in original, brackets added) (emphasis
added).
In the first appeal, this court vacated “the circuit
court’s final anended judgment of January 14, 1999" and remanded
the case “for a determination of whether the Association met the
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requirements of HRS § 514C-6(a){,]" memo op. at 21, “and . . «
whether the fee conversion surcharge . . - was assessed in a
Stair and equiteble manner’ pursuant to HRS § 514C~6(a) (3),”
meno op. at 17 n.10.
1
on remand, the Stillsons filed a motion on July 20,
2000, for partial sunmary judgment on the first of the two
remanded issu:
|. On September 18, 2000, the Association filed a
cross-motion for summary judgment, praying for judgment “in its
favor as to all remaining issues(,]" which apparently included a
determination that the 75% approval requirement was met, or,
alternatively, that the savings clauses in HRS §§ 514C-4 and
514C-6(b) upheld the purchase, and that the conversion surcharge
was assessed in a “fair and equitable manner.” On October 4,
2000, the court granted the Stillsons’ motion for partial summary
judgment, concluding that the Association did not satisfy the 75%
approval requirenent of HRS § 514C-6(a). On Novenber 28, 2000,
the court denied the Association's cross-notion for summary
judgnent. The court's November 29, 2000 findings of fact,
conclusions of law, and order granting the Stillsons’ motion for
partial summary judgment stated, inter alia,
ENDINGS oF fact
Fewor than 758 of the unit lessees actually signed the
1998 written Consent.
requiring the
Se) oe
[DLE without creating a result that 1s absurd or
Bekislscent with the purposes of the statute.
4. The Association failed to meet the 758 lessee approval
Fequirenent of Section 514-C(6) (a) in purchasing the
Jeaeed fee interest.
Eeunsstive omers after acauicing the fee interest did
Hepettidire the orieina: purchase by “ratidcation.”
6. The savings classes found in H-R-S: $5 514C-# and S1tC~
Gib), to the extent either provision could be reed as
Gelidating s purchase without 75% lessee approval, may not
be read a2 allowing the Assoctation to assess the costs of
Sequiring the leased fee interest. To read the “savings”
EYause more broadly would vitiate the requirement of 75%
Iessee approval.
7, hile the Legisioture may have intended Act 241 to be
Tetroactive, appiicstion of the “savings” clause to
permit assessment of the Stillsons for a share of fee
EGnvereion coste, under the circumstances of this
case, would violate the Contracts Clause of the United
Staten ‘Constitution.
(Emphases added.) At the hearing on the motion, the court
apparently accepted the stillsons’ method for calculating the
votes of multiple-owner units. According to the Stillsons’
ethod, in an apartment with two owners and an appurtenant share
of common interest (expressed in percentage as “PCI”) of 1.4306,
both owners had to vote in favor of the purchase for the entire
1.4306 interest to be attributed to the 75% requirement. If only
one owner voted in favor of the purchase, only one-half of the
1.4306, or .7153 interest, was counted toward the 75%
requirement. Employing this method of counting “votes,” the
court determined, as indicated above, that the 75% requirement
‘***FOR PUBLICATION***
had not been satisfied. The court granted the Stillsons’ motion
for partial summary judgment on Count I of the counterclaim, and
entered judgment in favor of the Stillsons and against the
Association. The court entered final judgment resolving all
claims on December 27, 2000.
on January 8, 2001, the Stillsons filed a motion to
amend the judgment and on January 9, 2001, they filed a motion
for attorney’s fees, costs, and expenses. On February 27, 2001,
the court granted the Stillsons’ motion to amend the findings,
‘The order wi
amended to sta
conclusions, and order.
3, ‘That the Association be and the sane is hereby
Permanently enjoined from collecting or attempting to
Collect from the Stilisons, or either of them, any
fee, charge or assesenent. in connection with the
Association's purchase of the fee interest, including
Mithout Limitation the billing of fee conversion
‘npenses ae an element of the conon area saintenance
expenses.
By order dated April 10, 2001, the court also awarded
the Stillsons attorney's fees and court costs, and reimburseable
expenses. The court entered an amended final judgment on May 2,
2001.
ur.
‘The Association appeals from the December 27, 2000
judgment and May 2, 2001 amended final judgment of the court.
‘The Association raises fourteen points on appeal. Pertinent
here, the Association argues that the court erred in (1) finding
and concluding that “[t]he Association failed to meet the 75
lessee approval requirement of [HRS § 514C(6) (a)] in purchasing
*FOR PUBLICATION***
the leased fee interest[]"%s (2) concluding that “(t]he
Association’ s conveyance of the fee interest appurtenant to
certain condominium units to their respective owners after
acquiring the fee interest did not validate the original purchase
by ‘ratification’; (3) concluding that “[t]he savings clauses
found in HRS $§ 514C-4 and 514C~6(b), to the extent either
provision could be read as validating a purchase without 75%
lease approval, may not be read as allowing the Association to
assess the costs of acquiring the leased fee interest”*; and (4)
ruling that “the [Association's] fee expense assessment was not
assessed in a ‘fair and equitable manner’ pursuant to HRS § 514C~
(a) (3).
In response, the Stillsons argue that (1) the
Association “failed to meet the seventy-five percent requirement
of HRS § 514C-6(a) before purchasing the leased fee interest”;
(2) “HRS § 514C-6(a) did not allow the [Association] to count the
approval of one lessee of a given unit as the approval of the co-
lessees of that unit”; and (3) “nothing in HRS §§ 514C-4 or 514c~
6(b) (1993) ‘saves’ the power to assess if the fee purchase was
> his argument represents the Association's first, second, and
sixth points on appeal
‘this 4s the Association's third point on appeal.
+ omnis
fon appeal.
iegunent represents the Association's fourth and fifth points
This 4s the Association's seventh point on appeal.
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—_—_—SSSSSsSSsSSsSssees
not approved by 75% of the lessees as required by HRS § 514C~
61a)”
Vv.
Summary judgment decisions are reviewed de novo.
Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839
P.2d 10, 22, recon, denied, 74 Haw. 650, 843 P.2d 144 (1992).
“unlike other appellate matters, in reviewing summary 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) (citation omitted). Summary judgment will be upheld
“if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law." Heatherly
vy. Hilton Hawaiian Vill, Joint Venture, 78 Hawai'i 351, 353, 893
P.2d 779, 781 (1995) (citations omitted).
v,
In its first argument, the Association contends that
HRS § 514C-6(a) is “silent both as to [the] method of calculating
the [758] vote, and the timing of the required ‘approval./” It
argues that the court erred by applying a “fractionalized method
for calculating the vote” and that the court should have instead
employed the “one unit, one vote” method required in the
Association's bylaws.
‘***FOR PUBLICATION’
At the hearing on the Stillsons’ motion for partial
summary judgment, the court vas “convinced” that “under the plain
reading of the statute, the (Stillsons’) view. . . that it must
be 75 percent of the lessees, 75 [sic] who hold 75 percent of the
common interest [a]ppurtenant is the common view.” In conclusion
of law no. 3 of the November 29, 2000 findings of fact,
conclusions of law, and order granting the Stillsons’ motion, the
court decided that HRS § 514C-6(a) “may be read as requiring the
affimative vote of seventy-five percent (75¢) of the condominium
unit lessees, as weighted to reflect the percentage common
interest appurtenant to each such unit(.]"
vt.
a.
lie note, initially, that the court’s interpretation of
HRS § 514C~6(a), which we construe as requiring approval by
lessees owning units to which at least 75¢ of the conmon
interests are appurtenant, was correct. HRS § 514C-6(a) (1993)
states, in relevant part, as follows:
(a) the association of epartment owners or cooperative
housing corporation may purchase the 1 interest in
Se ce a ne can
‘Anierests are sopurtenent(.1
(Emphases added.)
When construing a statute, “the fundamental starting
point is the language of the statute itself . . . [and] where the
10
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statutory language is plain and unambiguous, [the appellate
courts’] sole duty is to give effect to its plain and obvious
meaning.” State v, Kalama, 94 Hawai'i 60, 64, 8 P.3d 1224, 1228
(2000). A plain reading of HRS § $14C-6(a) does not indicate
that 75% of the lessees or 75% of the units must approve of the
purchase.” Rather, the touchstone is “seventy-five per cent of
the conmon interests . . . appurtenant” to the units. Hence,
approval under HRS § 514C~6(a) is effective so long as the
lessees of units to which that percentage of common interests is
appurtenant approve of the purchase.
‘The legislature provided an express definition for the
entire phrase, “seventy-five per cent of the condominium unit
lessees.” In construing HRS $ 514C~6(a), then, the phrase should
be evaluated and applied as a whole so as not to render the
definition superfluous or insignificant. See Inxe City & County
of Honolulu Corp, Counsel, 54 Haw. 356, 373, $07 P.2d 169, 178
(1973) (applying the “cardinal rule of statutory construction
that a statute ought upon the whole be so construed that, if it
can be prevented, no clause, sentence or word shall be
superfluous, void, or insignificant”) (emphasis added) .
According to the language of the statute, the subject phrase
means “the lessees of units to which seventy-five per cent of the
common interests are appurtenant.” Thus, by reading the
+ Nesther party apps
to reflect the conson interes
rs to object to the court's weighing adjustment
‘appurtenant to each such unit.
u
FOR PUBLICATION!
definition into the phrase, the statute reads that “(t]he
association of apartment owners . . . may purchase the leased fee
Anterest in the land; provided that (the lessees of units to
which seventy-five per cent of the common interests are
appurtenant) approve of the purch:
We were faced with a similar situation in Coon v, City
4 County of Honolulu, 98 Hawa:
this court refused to apply an external definition of
‘4 233, 47 P.3d 348 (2002). There,
“condominium owners” in construing Honolulu’s lease-to-fee
conversion law, Revised Ordinances of Honolulu (ROH) chapter 38.
Id, at 248, 47 P.3d at 363. ROH § 38-2.2 required, inter alla,
that “[a]t least 25 of all the condominium owners within the
development or at least ovners of 50 percent of the condominium
units, whichever number is less, apply to the (City’s) Department
[of Housing and Community Development (Department)] to purchase
the leased fee interest.” Id. at 238 n.3, 47 P.3d at 353 0.3
(emphasis added). The Department’s rules § 2-3, however,
conflicted with ROH § 38-2.2 in that it required only “25
condominium owners by number, or 50% of the condominium owners of
+ the dissent interprets the statute by isolating the subject phrase
into individual parts, employing separate definitions of "common interests”
‘and “condominium unit lessees” from outside of § Siéc-6. gaa Dissenting
Opinion at 25-26. It uses the definitions of “common interests” from HRS
S'si4A-3 and “condoninsem unit lessees" fron § SI4C-1. Sy this process, it
arrives st the conclusion that “the units in which ali of its lessees voted in
the affirmative, as weighted to reflect each unit's percentage of common
Interest, must collectively anount to seventy-five percent.” Dissenting
opinion st 27 (emphasis added). ‘This approach, however, is a piecemeal
Peconatruction of HAS § S14C-6 and, with ail due respect, seemingly disregards
the legislature's express definition. Thus, the dissent’s importing of
definitions from outaide the covering atatite, HRS § 514C-6, would not
produce a correct result
2
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a development, whichever shall be the lesser number,” id. at 246,
47 P.3d at 361 (emphasis in original), “impermissibly reduc(ing]
the number of applicants required to trigger ROH ch. 38
proceedings below that prescribed by ROH 38-2.2(a) (1)[,]” id. at
247, 47 P.3d at 362. This court adhered to the plain reading of
the ordinance and construed "S0 percent of the condominium units”
to mean “£ifty percent of all the units in the condominium
development” as opposed to “SO percent of the condominium owners”
or “SO percent of the owner-occupied condominium units.” Id. at
248, 47 P.3d at 363.
B.
It would appear evident that if the legislature desired
that every Le
holding an interest in a single apartment vote
in the affirmative before the PCI in the apartment would be
attributed to the 758 threshold, it could have easily required
the “unanimous” consent of all ovners of a condominium. The
legislature, however, designated only the ultimate condition in
HRS § 514C-6(a), the requirement of an affirmative vote from 75%
of the conmon interests appurtenant to the units, and not 75% of
‘the common interests appurtenant to the units in which every
individual lessee votes in the affirmative.
The statute is clear, then, that an affirmative vote of
75% of the common interest is required, but does not limit the
method for calculating the threshold percentage. In that regard,
HRS § 514A-61 (1993) provides that “(t]he operation of the
B
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property shall be governed by bylaws, a true copy of which shall
be recorded in the same manner as the declaration.” The
stillsons argue that “voting rights of owner/lessees with respect
to the acquisition of the fee interest[ is] not ‘operation of the
property.’” (Emphasis in original.)
However, HRS § S14A-3 (1993) provides that
“*folperation of the property’ means and includes the
administration, fiscal management, and operation of the property
and the maintenance, repair, and replacement of, and the making
of any additions and improvements to, the common elements.”
(emphasis added.) Based upon this definition, the term
“operation of the property” is broad in scope inasmuch as it
“includ[es]” and thus is not limited te the objects enumerated in
HRS § 514A-3. The term “operation” itself is defined as
“[elxertion of power; the process of operating or mode of action;
an effect brought about in accordance with definite plan;
action; activity.” Black’s Law Dictionary 1092 (6th ed. 1990).
Hence, the bylaws may pertain to any “action” or “activity” with
respect to the property.
It would also appear that voting on the leased fee
purchase is implicated in the “administration” of the property.
“Administration” is defined as “the principles, practices, and
xationalized techniques emploved in achieving the objectives or
aimsof an oraanization(,] . - . administrative management [,] the
4
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phase of business management that plans, organizes, and controls
the activities of an organization for the accomplishment of its
objectives in the long run often as distinguished from operative
management.” Webster's Third New Int'l Dictionary 28 (1961)
(emphases added). Applying this definition, voting procedures
that
would constitute “practices” and “rationalized techniqu
associations “employ{] in achieving the objectives or aims of an
organization,” in this case, the purchase of the leased fee.”
‘Thus, contrary to the dissent’s assertions, the bylaws govern
more than mere “daily operations of the condominium property.”
Dissenting Opinion at 21.
Indeed, bylaws generally establish the rules governing
the condominium. See Raines v, Palm Beach Leisureville Cnty,
Ass'n, 413 So. 2d 30, 32 (Fla. 1982) (*{A] condominium
association derives its powers, duties, and responsibilities from
[Florida Statutes} chapter 718 and from the association’ s
declaration of restrictions and bylaws.”); Bradford Square Condo,
Ass'n v. Miller, 573 S.8.2d 405, 409 (Ga. Ct. App. 2002) ("the
condominium instruments, including the bylaws and the sales
agreenent, are a contract that governs the legal rights between
the [alssociation and unit owners.”); Chapman Place Ass'n, Inc.
vs Prokasky, 507 N.W.2d 858, 863 (Minn. Ct. App. 1993) (“(T]he
* ‘The dissent agserts that voting on the fee purchase “does not fall
within... tsdninistration(,]’" dissenting opinion at 22, without discussion
Of the definitions of “operation” or “administration.”
1s
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—
condominium act, in conjunction with the [declaration and the
{alssociation’s by-laws, governs the rights of the [a] ssociation
and condominium unit ovners.”); Lion Square Phase It 6 III condo.
Ass'n vs Hask, 700 P.2d 932, 934 (Colo. Ct. App. 1985) ("A
condominium association may exercise its powers only within the
constraints of its condominium declaration and bylaws.”
‘That associations may implenent various voting methods
through their bylaws does not alter the application of HRS
$ 514c-6(a). The voting method may vary across associations, but
the application of HRS § 514C-6(a) does not change. Associations
must still obtain the requisite 75% approval for a purchase to be
valid and as to that mandate, each association's bylaws is
subject to examination for compliance with the statute in the
event of a dispute. Hence, any fear to the contrary would be
unnerited.
vir.
a
Therefore, in this case, the Association's bylaws;
which govern the condominium property pursuant to HRS § 514A-81,
and are not otherwise violative of the law, control on the
question of how the votes are to be calculated. The bylaws
indicate that a designated person chosen by the owners “shall”
vote on behalf of all owners of a unit. The bylaws state in part
as follows:
2. Yoting Ouers. There shall be one “Voting Owner” of
ach spataent. ihe Voting owner who need not be an owner
16
‘***FOR PUBLICATION
Oe
EPititten notice selivered to the Board of Directors.
Pithetsbsence of any such designation, the owner or owners:
Of an opartment shall be deemed to be the voting owners of
Gach apartments anc, Jf any apartment be owed by more than
fone owner (and
Bre tes) oh
‘Diners oresent in-berion at apy necting of she Association
Sab t there be more than one of such omers present et any
eetings and if there be any dispute anong then as to which
OF thes’ shall be deemed to be the voting owner of such
apartment,
select a votins owner.
(Emphasis in original and emphases added.) The bylaws, then,
do not provide for fractional votes to be cast by the separate
owners of a multi-onner unit as the court determined. Each unit,
even if having more than one owner, is entitled to, and can cast,
but one vote. The court's method of calculating the “approval”
contravened the bylaws, which do not contemplate
fractionalization of a “vote,” but, rather, mandate one vote per
apartment.
‘The “voting owner” provision in the bylaws is
consistent with the Condominium Property Act, chapter 514A."
HRS § 514A-11(6) (1993) mandates that condominium association
© the dissent maintains that the bylaws are “tangential” becat
Aesocistion’s “bylaws dictate the ‘one vote per unit” voting method
Tn terms of voting at Board meetings ~~ riot for fee purchases{.1”
opinion at 22°23,” However, the Moting Owners” provision plainly ppl
GEcing in general and does not expressly linit its applicability to “bosrd
Meetings." Indeed, as noted, there was no challenge to the use of ballots for
Youing purposes. Seo ines note 18.
the Condominium Property Act, HRS chapter SI4A, was formerly known
fas the Horizontal Property Act, HRS chepter 514, 1988 Haw, Sess. L. Act 65,
$§ in2 at 38, The Association's declaration and bylaws were recorded
Sleultansousiy on April 3, 1974 pursuant to the Horizontal Property Act, HRS
chapter S18.
”
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SSS
declarations “shall express . . . [t]he percentage of undivided
interest in the conmon elements("*] appertaining to each
apartment and ite owner for all purposes, including voting[.]”
Thus, the Association’s bylaws,” requiring multi-owner
apartments to designate a representative “voting owner” for
purposes of casting a vote, comports with HRS § 514A-11(6), which
mandates an “owner” for the purpose of “voting” be identified in
the declaration."
Moreover, the Asseciation’s voting procedure
effectuates legislative intent. In the first appeal, this court
looked to the subsequent 1999 amendments to HRS chapter 514¢ and
accompanying legislative history “to confirm its interpretation”
of § 514C-6(a)."* See Memo op. at 14-15. It was noted that, “in
1999, the legislature expressly stated that it was ‘clarifvina’
its original intent regarding the powers of association of
12 the definition of “common elements” encompasses “(t]he Land
included in the condominium property regime, whether leased or in fee
‘aimple(-]* HRS § S14A-3(1) (1999).
2 the bylaws are recorded in the sane manner as the declaration.
See Ass'n of ounefs of Kukui Plage v. City 4 County of Honolulu, 7 Haw. App.
Gey Ge nib Tez Pid S74, 370 n-6 (1987) (citing HRS § 514A-81)-
M_the requirement under #85 § 514R-11(6) that declarations designate
the “owner” of each apartnent for the “porposes” of “voting” applies to the
Resociation's declaration even though the declaration pre-dates the statute.
‘The bylaws atate that the horizontal property regine was “established under
Gnd pursuant to Hom, Rev. Stat, Chapter S14” and that if “the gad statute be
ne ret nanent to oF of the”
Geclaration and bylaws. —(amphasis added.)
the subsequent legislative history supported the court's view
“that the legislature did not intend HRS § 514-6 to apply golely to ca
regarding the right of first refusal.” Memo op. at 15 (emphasis in original)
18
‘***FOR PUBLICATION*#*
OO
apartment owners involved in lease-to-fee conversions in the case
of voluntary conversions by associations of apartment owners.”
Ida (emphasis in original). The preamble section of the 1999
amendment to chapter 514C, Act 241, provided that
[tthe legislature further finds that it is necessary to
ELM ay"tne powers of the boards of directors of
Ssclations ef apartment omers to enter into purchase
agreements with Lessors tof i
Soluntary lease to fee conversions of condominium projects
in an afficient and economical nanner.”
1999 Haw. Sess. L. Act 241, $1 at 743 (emphases added). The
Association’s apparent justification for the designation of a
representative voting owner is in consonance with the
legislature’s intent to “facilitate and encourage” lease-to-tee
conversions in an “efficient and economical manner” as explained
below.
B.
For under chapter 514A, “[a]ny apartment may be jointly
or commonly owned by more than one person.” HRS § S14A-5 (1993).
A “person” is defined as “an individual, firm, corporation,
partnership, association, trust, or other legal entity, or any
combination thereof.” HRS § 514-3. Thus, the legislature
plainly contenplated that (1) an apartment could be owned in
various estates, including joint tenancy, tenancy in common, and
tenancy by the entirety, and (2) legal entities -- firms,
corporations, partnerships, associations, trusts, or otherwise --
and combinations of legal entities could own a single apartment.
9
**FOR PUBLICATION’
—
Under this framework, condominium property regimes
produce complex forms of ownership involving a multitude of
“persons.” Indeed, the Association apparently adopted the
designated “voting owner requirement to address the perceived
difficulty with respect to voting by multiple-owner apartments,
Anasnuch as the voting provision in the Association‘ bylaws
references apartments held “jointly, commonly or by the
entireties(.]” Hence, the representative “voting owner”
procedure dictated by the Association’s bylaws efficiently and
economically addresses the complexities that arise in multiple-
owner apartments. In other words, the Association’s voting
procedure effectuates the legislature's aim of efficient and
‘economical lease-to-fee conversions and could hardly be more
rational and consistent with the statute. In Light of the
legislature’s recognition of various ownership statuses, the
“rational, sensible and practicable interpretation” of the
statutes, Southern Foods Group L.B, v. Dep't of Educ., 89 Hawai'i
443, 453-54, 974 P.2d 1033, 1043-44 (1999), authorizes the
Association's designated owner voting procedure.
c
Assuming, arauendo, sone ambiguity in HRS § 514C-6(a),
construing the statute to require the affirmative vote of every
‘ \
antity would defeat the legislature’s objective of facilitating
and encouraging lease-to-fee conversions in an efficient and
20
***FOR PUBLICATION*#*
ee
economical manner. This court has rejected an analogous argument
in interpreting Honolulu’ s lease-to-fee conversion law.
In Coon, this court was faced with an “internally
inconsistent” ordinance that “restrict [ed] the definition of a
Messee to an ‘owner-occupant’ who must be ‘an individual,’
while at the same time extending ‘lessee’ status to trusts and
other legal entities.” 98 Hawai'i at 259, 47 P.3d at 374
(emphasis added). The appellants in that case argued that,
vwnere a condominiun leasehold is held in trust, the only lessees
qualified to purchase the fee interest pursuant to [the
ordinance)” are, inter alia, “trustees (because only trustees
hold legal title to property)” and “natural persons(.]” Id. at
258, 47 P.3¢ at 373 (emphasis in original and emphases added) .
This court rejected the appellants’ interpretation and
held that “the benefits of ROH ch. 38 extend{ed) to owner~
occupants of condominiums who have elected to structure the title
to their assets in a trust, subject to the proviso that it is the
trustee who is eligible to purchase the leased fee interest.”
Id. at 260, 47 P.3d at 375. Tt was reasoned that
allowing the occupants of condominiums, who quality to
purchase their leased fae interests pursuant to [the
Erdinancel in all respects except that legal title to the
Scndominius unit is technically held in trust for their
Benefit, to convert their leased fee interests in their
Eondomiaiue unit into fee einple interests furthers the
Id. Consequently, in Coon, this court adopted the interpretation
that furthered the goal of ROH chapter 38, rejecting a literal
2
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—_— SSSSSSSSSSSSSSSsSSssssess
Anterpretation of the ordinance that would contravene legislative
intent.
Insofar as HRS § 514C~6(a) could be viewed as
ambiguous, implementing the Association's bylaws, as opposed to
requiring unanimous approval by each owner in multi-owned
apartments, would be preferable because, as in Coon, this
“furthers” the legislature's “goal” of “facilitating” conversions
in an “efficient” manner. To do otherwise would be inconsistent
with established statutory construction principles and the
approach taken in Coon."
vin.
Tt must be further noted that the Association's bylaws
do not prohibit a unanimous vote as to “persons” owning a
condominium as the dissent implies, dissenting opinion at 21-24,
but only require the owners to designate a person to cast a vote
on behalf of the apartment. Prescribing that “if a unit is owned
by three lessees and one lessee votes against the fee purchase,
that unit's percentage of common interest, in its entirety, will
not count towards the requisite seventy-five percent,
notwithstanding the affirmative votes of the other two
lessees [,]” dissenting opinion at 27, would exceed the statutory
<The dissent's position effectively places the sssociation menbers
in this case in @ position like thet rejected by this court in Coon
2
***FOR PUBLICATION*#*
—
boundaries of HRS § $14C-6(a).. For on its face the statute
focuses not upon how the vote of the several lessees (in the
event there is more than one) are to be counted. Rather, HRS
§ 514c-6(a) expressly defines and states that “seventy five per
cent of the condominium lessees means the lessees of unita to
which seventy five per cent of the common interests are
appurtenant” (emphases added), thus making the condominium
apartment itself and not the several “lessees” the voting unit to
be counted.
Additionally, 4 unanimity mandate would xun counter to
the direction of legislative intent as described above and as
subsequently indicated by HRS § $14C-22. The legislature now
permits associations an alternative route to purchasing the fee
interest by allowing the board of directors to do so without
obtaining the 75% approval vote. See HRS § 514C-22 (Supp. 2004)
(authorizing associations to “purchase the lessor’s interest in
the condominium project provided{] that the declaration of
condominium property regime shall either contain or be anended to
include @ provision authorizing the board of directors to
effectuate such a purchase”).
Nevertheless, if we were to adopt the dissent’s
position, associations which prefer that a vote of the owners be
had would otherwise be constrained in their method of voting and
only an amendment to the statute by the legislature would obviate
‘***F0R PUBLICATION*#*
the requirement of having every individual and entity comprising
fan owner cast an affirmative vote. In the absence of any
apparent conflict with HRS § 514C-6(a), the dissent’s approach
would also unduly interfere with any arrangements multiple owners
may choose to make or have made anong themselves as to voting
with respect to a fee purchase. Additional cost and expense for
owners would be incurred if, for example, devices such as powers
of attorney were needed to be employed, assuming that the use of
such devices would be permissible under the dissent’s approach.
For the foregoing considerations, the representative voting owner
by-law should be confirmed as consistent with the requirements of
HRS § 514C-6(a)-
1x.
Although the Association is correct that the court
erred in applying @ fractional vote count, the Association's oun
calculation may net have complied with the procedural
requirements of its bylaws. To determine if the 758 requirement
was satisfied, the court tabulated the 1995 written consents to
amend the bylaws.” By employing the Stillsons’ fractional vote
© the anendnent proposal would “allow the Association to make sn
offer to purchase the lesscr’s interest in the Project without requiring 708
of the owners co execute contracts for the purchase of their leased fee
Gnterest.” (It is unclear uhy the 70% figure was used.) In addition to the
1998 consents, the Association points to "four separate occasions” in which it
Obtained the fequisite 754 approval: (1) 1994 ballots seeking approval for
of the leased fee interest; (2) 1995 written consents; (3) 1995
nterest sales contracts to the sparenent owners; and (4) linited
warranty deeds to the purchasing omers. The court, however, found “that the
1985 ballot ie the act in issue thar requires the 75 percent’ vote, which is
required by [HRS §] 514C-6(a), which ie refers to in the renand from the
Soprene Court in this case” end did not consider the other forms of approval.
m
‘***FOR PUBLICATION*#*
Oe
method, the court found, as stated supra, that the 1995 consents
were “signed by unit lessees representing 66.9518% of the common
interest (,]” falling short of the requisite 75%. The
Association, on the other hand, by employing the “one unit, one
vote” method, arrived at # 75.78368 approval rate.
According to section 2 of the bylaws, quoted above, in
multiple-owner apartments, a vote is valid if the co-owners
designate a representative “voting owner” by providing the Board
of Directors with written notice." In tabulating the 1995
consents, the Association “accept{ed) the signature of a single
co-owner as exercising the vote of all co-owners unless one or
more of the co-owners dispute[d the] right to vote.”
At his deposition, Richard Ekimoto (Ekimoto),° the
attorney who represented the Association in acquiring the leased
fee interest, testified that “if there was one co-owner who
signed the written consent form, we counted that as the vote of
the owner -- for that apartment unless we got a conflicting
statement or an objection. And it was based on industry practice
and the by-law provision.” Based on Ekimoto’s testimony, the
the Stillgons “do not challenge the {Association's} use of ballots
An atteapting £0 attain the 7158 lessee approval threshold” rather than a vote
at a'mecting.
© Richard Ekimoto, the attorney for the Association, ade this
statement ina duly 25, 1995 faxed semorandun to Ray Sinon, co-owner of unit
aie
2 Ekinoto withdrew ae counsel on January 16, 1997, so that he could
serve as a witness
2s
‘***FOR PUBLICATION*#*
——
Association did not confizm that the owner who signed the consent
was the designated “voting owner” before applying the apartnent’s
PCE to the 75% threshold.” The validity of the procedure
followed, however, is not dispositive inasmuch as the subsequent
deeds ratified the consents.
x.
a.
‘This jurisdiction has long recognized the doctrine of
ratification, See Gold v, Harrison, 88 Hawai": 94, 105-06, 962
P.2d 353, 364 (1998) (concluding that an attorney who did not
sign a complaint was nevertheless subject to Hawai'i Rules of
Civil Procedure Rule 11 sanctions because he “ratified and
adopted the complaint . . . as his own” by asserting “that
everything in the case was done with his full knowledge and
approval"); Sharples v. State, 71 Haw. 404, 407, 793 P.2d 175,
177 (1990) (acknowledging the rule that an “enployer’s liability
under a ratification theory requires that the act complained of
be done on behalf of or under the authority of the employer, and
there must be clear evidence of the employer's approval of the
wrongful conduct” (citation omitted)); Maui Fin, Co, v. Han, 34
3% Ekimoto admitted to this method in the following exchange during
his deposition:
©. And so in your mind, all that’ was necessary was to
Count the number of consents that you had received,
dd up the PCT represented by those consents to
Getermine whether or sot the 75 percent threshold was
net?
a Yes.
FOR PUBLICATION
ee
Haw. 226, 230-31 (1937) (recognizing the “principle of the law of
agency that an affirmance of an unauthorized transaction may be
inferred from a failure to repudiate it” and therefore holding
that the defendant ratified his wife's signature on his behalf by
not objecting to it) (internal quotation marks and citation
omitted); Cook v, Surety Life Ins. Co, 79 Hawai'i 403, 411, 903
P.2d 708, 716 (App. 1995) ("Any failure on the part of the client
to object to an unauthorized act (by counsel in settlement
negotiations] within a reasonable time after becoming aware of it
will be construed as a ratification of it.”).
In Maui Finance, this court adopted the Restatement of
the Law of Agency's definitions for “ratification” and
wafgirmance.” Accordingly, in Hawai'i, “ratification” is defined
as “the affirmance by a person of a prior act which did not bind
him but which was done or professedly done on his account,
whereby the act, as to some or all persons, is given effect as if
originally authorized by him.” 34 Haw. at 230 (quoting
Restatement of the Law of Agency § 82). “Affirmance” is defined
as “a manifestation of an election by the one on whose account an
unauthorized act has been performed to treat the act as
authorized, or conduct by him justifiable only if there is such
an election.” Id, (quoting Restatement of the Law of Agency
§ 83).
FOR PUBLICATION***
Eventually, 84.9698 of the owners, based on their
weighted percentage ownership of the common elements, approved of
the purchase by executing Limited warranty deeds. In the
warranty deeds, the Association, as “Grantor,” conveyed legal
ownership of the property upon which the condominium is located
to the apartment owners or “Grantees.” Section 8 of the deeds
provide:
Upon release of any and all such mortgages, Liens or
eheunbrances, and provided that the owners of Grantee's
Leasehold interest and the Property are identical, it is the
tent of the parties to this Deed that there be & nerger of
Grantes's Leasshold Interest into tha Bopest.
(Emphases added.) Seventy out of seventy-nine apartments have
purchased the fee interest in the property. All title holders in
each venty their ra eds. By
signing the deeds, any purportedly non-consenting owners
“manifest (ed)” an “election” to “treat the act [of the signing
owner] as authorized,” thereby constituting affirmance of the
1995 consents. This affirmance, in turn, gave “effect [to any
questionable consents] as if originally authorized” by the
purportedly non-consenting owner and resulted in ratification.
Hence, even if the consents may have been marred by procedural
error - i,e,, authorized by non-“voting owners” - more than 75%
of the owners, as weighted by the common interests, eventually
affirmed the 1995 consents.
28
‘*#*POR PUBLICATION
xr.
‘Thus, contrary to the dissent’s contention that the
“felxecution of these deeds alone does not contemplate that the
condominium unit lessees who previously voted against the fee
fter ratify the 1995 written consents
purchase intended to ther
and ultimately approve the purchase(,]” dissenting opinion at 30
(emphasis in original), the deeds themselves expressly state that
was the * oa
rat: ee. The evidence in the record thus
clearly and plainly manifests the lessees’ assent to treat any
negative votes as affirmative, inasmuch as the deeds are a plain
manifestation of the fact that the lessees authorized and, thus,
ratified the fee purchase.
The dissent “dofes} not believe execution of the .
deeds constituted ‘ratification’ so as to affirm the 1995 written
consents and approve the fee purchase,” dissenting opinion at 32
n.15, because “[t]o do otherwise would circumvent the fee
purchase process statutorily required” in “contraven(tion of] HRS
§ $14C-6(a) and the principles of ratification[,]” dissenting
opinion at 30. But no one contends that the Association in this
case sought to “circumvent” the process. All title holders in
seventy out of seventy-nine apartments have signed their deeds,
even when they had the option of not doing so. Their acceptance
of the fee interest cannot demonstrate anything other than
approval of the original fee purchase.
2»
‘***POR PUBLICATION:
Signing the deeds manifests consent to the purchase.
Rather than a “contraven(tion]" of “the principles of
ratification,” dissenting opinion at 30, the execution of the
deeds is the “eine qua non” of the act of ratification, These
acts of ratification -- an overwhelming acceptance of the deeds
at 84.9669% weighted approval -- plainly meet the statutory
threshold. To reiterate, seventy out of seventy-nine units have
purchased thelr respective fee interests. Accordingly, the
Association satisfied the statutory requirement. To ignore the
ratification and nullify the ratified transactions will have an
unwarranted chaotic effect on the Association and its members.
See infra Part XIII.
XII.
‘The doctrine of ratification also resolves the dispute
regarding whether the Association was required to obtain 758
approval before the purchase. To reiterate, HRS § 514C-6(a)
permits the Association to purchase the fee interest “provided
that at least seventy-five per cent of the condominium unit
lessees . . . approve of the purchase.” The Stillsons’ contend
that “the plain import of [HRS § 514C-6(a)] is that the approval
must precede the purchase.” (Emphasis in original.) However,
“when ratified, the prior unauthorized act has the same legal
affect and results in the same contractual relations between the
2 hs noted previously, the Association contended that HRS $ S14C-
6(a) was “silent. s | as to. . the timing of the required ‘approvel.’*
30
‘***FOR PUBLICATION*#*
principal and the person with whom the agent has dealt as though
the act of the agent originally had the prior authorization of
the principal.” Maui Fins, 34 Haw. at 230 (emphases added).
Ratification has the effect of validating any original allegedly
unauthorized act. Inasmuch as any purportedly unauthorized
consents was later ratified, the “prior unauthorized” consents
had “the same legal effect” as if the signing owner “originally
had the prior authorization” of his or her co-owners and/or the
official “voting owner.” ‘Thus, the required 75% approval secured
by the deeds dated back to the 1995 consents. No timing conflict
results because the 1995 consents occurred before the purchase.
Therefore, the court erred in granting the Stillsons’
motion for partial summary judgment and in denying the
Association's cross-motion for summary judgment insofar as the
Association met the 75¢ requirement as a matter of law.
Accordingly, the court should have granted the Association's
cross-motion for summary judgment as to the first remanded
issue.”
xrIr.
‘The court’s findings, conclusions, and order granting
the Stillsons’ motion, as well as its anended findings,
conclusions, and order, did not address the second remand issue
® in Light of the foregoing analysis, it is not necessary to reach
‘the question raised by the Association of unether HRS § 51éC-4 or HRS § S14C~
Gib) weaves" the fee purchase in a situstion where the association has
Purchased the fee “without capacity OF power todo” so. HRS § S14C-6(b).
31
***FOR PUBLICATION*#*
of whether the conversion surcharge was assessed in a “fair and
equitable manner” pursuant to HRS $14C-6(a) (3). In their reply
brief, the Association maintains that “[t]he Stillsons a1 but
concede that public policy weighs . . . in favor of allowing the
fee conversion to take place(]” because “[tlhe consequences would
ering: artnet w hs
nteres! he AO) ve the
a rover ace: tbo hs
2. t, thei be a the
of all owners.” (Emphasis added.) Because “(t]he Stillsons’
argument would effectively void the purchase by 70 of the 79
apartments at the . . . condominium[,]” the Association maintains
that “the Stillsons attempt to. . - [focus on] @ much more
Limited question: . . . ‘simply whether . . . the AOAO possesses
‘the power to assess the Stillsons{.]’”
At the October 4, 2000 hearing on the Stillsons’
notion, the court stated that “the conver(sion] surcharge was not
fairly and equitably imposed{,]” but the basis for its decision
rettains unclear. The court seems to have rested its decision on
its determination that the Stillsons should not be subjected to
the surcharge in any case. This question, however, as stated
above, was decided in the first appeal. As indicated in HRS
§ 514C-6(a) (3), the Association may subject the Stillsons to the
surcharge. Inasmuch as the court did not provide a discernible
basis for its holding other than that the surcharge is
32
‘*##FOR PUBLICATION
inapplicable to the Stillsons, this case is remanded on the
discrete question of whether the surcharge was “assessed in a
fair and equitable manner.”
xrv.
The Association argues that the court erred by denying
its motion for repayment of the judgment avarded to the Stillsons
following the meorandum opinion, which vacated ‘the judgment. In
its motion for repayment of judgment, the Association relied on
HRS § 636-16," relating to prejudgment interest, but did not
provide any relevant authority on the issue of whether the
Stillsons were required to repay the judgment. The Stillsons, on
the other hand, argued that the court, “sitting in equity[,]" had
the “sound discretion” to maintain the status quo pending
decision on the merits and reminded the court that the
Association originally failed to “avail itself of the opportunity
to post @ supersedeas bond within the period of time allowed” to
stay enforcement of the judgment.
Inasmuch as we have held that the Association's cross-
motion for summary judgment must be granted insofar as it
% RS § 636-16 (1993) provides:
In awarding Anterest in civil cages, the Judge 19 authorized
£0 designate the conmencenent date to conform with the
Circumstances of each case, provided that the earliest
Ecenencenent date in cases’ arising in tort, may be the date
then the injury first occurred and in cases arising by
Breach of contract, it may be the dave when the breach first
oceurred,
33
FOR PUBLICATION?
pertained to the required 75% vote, the Stillsons are not
entitled to any judgment amounts avarded them as a result of the
court's contrary ruling. The Association requested “repayment of
the garnished amounts . . . plus prejudgment interest.” on
appeal the Association does not challenge the court's denial of
prejudgenent interest. ‘Thus, we need not address the issue.
xv.
Next, the Asseciation contends that “[blecause the
Stillsons undisputedly sought only partial summary judgment, and
did not with ‘particularity’ seek specific relief, the [court]
did not have the authority to award a complete summary judgnent,
or grant relief not specifically sought in the motion.”
(Emphases in original.) This argument need not be addressed
inasmuch as we have already determined that summary judgment in
favor of the Stillsons was inappropriate.
XVI.
Finally, the Association argues that the court erred by
awarding the Stillsons attorney's fees, costs, and expenses.
Having determined that the Stillsons did not prevail, the court's
award of attorney's fees, costs, and expenses is vacated.
XVII.
Based on the foregoing, (1) the December 27, 2000
judgment and May 2, 2001 amended final judgment are vacated and
(2) this case is remanded (a) with instructions to the court to
‘***FOR PUBLICATION
enter an order denying the Stillsons’ motion for partial summary
judgment and to enter an order partially granting the
Association's cross-motion for summary judgment as to the 758
requirement and as to the Association's authority to render a
surcharge and (b) for the court to determine whether the
conversion surcharge was assessed against the Stillsons “in a
fair and equitable manner.”
on the briefs:
Kevin P.H. Sumida and
Lance S. Au (Matsui .
Chung Sumida & Tsuchiyama) Bex Heine
for plaintiff/counterclain
defendant-appellant. e 7 Ss
Dennis Niles, William M.
McKeon and Tom Pierce Yona. Ded he
(Paul, Johnson, Park &
Niles} for defendants/
‘counterelainants-
appellees.
35
|
62a207d9-df31-4a3d-811c-e87f3fe71d7b | Balthazar v. Verizon Hawaii, Inc. S.Ct. Order, filed 11/25/2005 [pdf]. S.Ct. Order of Correction, filed 12/12/2005 [pdf]. S.Ct. Order of Correction, filed 12/23/2005 [pdf]. | hawaii | Hawaii Supreme Court | ‘+*#P0R PUBLICATION*#*
IN THE SUPREME COURT OF THE STATE OF HAWAT'Z
=--000---
BRENDAN BALTHAZAR and MICHAEL R. SAVONA, M.D.,
Plaintiffs-Appellants
VERIZON HAWAII, INC., Defendant-Appellee
and
HAWAIIAN TELEPHONE COMPANY, GTE HAWAIIAN TELEPHONE
JOHN DOE CORPORATIONS 1-5,
COMPANY, INC., JOHN DOES 1-5,
ROE NON-PROFIT CORPORATIONS 1-5,
JOHN DOE ‘PARTNERSHIPS 1-5,
‘and ROE GOVERNMENTAL AGENCIES 1-5, Defendants
Hd $2 ANSI
No. 26977
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. No. 03-1-0139) -
NOVEMBER 25, 2005
J., AND CIRCUIT
MOON, C.J., LEVINSON, ACOBA, AND DUFFY,
Jey RECUSED
‘JUDGE BLONDIN IN PLACE OF NAKAYAMA,
OPINION OF THE COURT BY ACOBAL J.
We hold that (1) because the filed-rate doctrine
imputes knowledge of the disclosures contained in a tariff filed
with a regulatory agency like the Hawai'i Public Utilities
Commission (HPUC or the HPUC) by a public utility such as
Inc. (Verizon) and its
Defendant-Appellee Verizon Hawaii,
+*+FOR PUBLICATION*#*
predecessors to customers of such a utility and (2) because under
the filed-rate doctrine custoners suffer no legally cognizable
injury when they pay the filed rate in exchange for services in
accordance with a filed tariff, (3) the doctrine bars claims by
customers such as Plaintiffs-Appellants Brendan Balthazar and
Michael R. Savona, M.D. (Plaintiffs) who allege unfair or
deceptive practices under Hawai'i Revised Statutes (HRS) § 480-2
(2993 & supp. 2004) or $$ 481A ot seq, (1993) against Verizon
when they have paid the filed rate in exchange for services
authorized under the tariff, In this appeal, Plaintiffs app.
from the November 4, 2004 judgment of the circuit court of the
second circuit (the court)! granting sumary judgment in favor of
Verizon.
1
‘The parties entered into = joint statement of
undisputed facts which include the following. In 1968, Verizon's
predecessor, GTE Hawaiian Telephone Company, Inc. began offering
Touch Calling service. Touch Calling is the brand name under
which Verizon markets touch-tone dialing capability. The service
offers advantages over the older rotary dialing system including
the ability to dial faster and more accurately and the ability to
use features available on the network such as voice mail, call
‘The Honorable Joseph £. Cardoza presided.
2
‘***F0R PUBLICATION*#*
forwarding, and call blocking. In 1968, the HPUC authorized
Verizon (via Tariff No. 40) to charge a specific tariff to
This taritt
customers electing to acquire Touch Calling servic
is currently described in Tariff No. 3 which defines Touch
calling service as “providfing] for the origination of telephone
calls and for the transmission of certain data, through the use
of a telephone equipped with push buttons in lieu of a rotary
dial, by means of tones instead of pulses.” Tariff No. 3 also
states that “[1]t is an intent to apply TOUCH CALLING rates and
charges whenever a customer is served by exchange lines equipped
with TOUCH CALLING capability which terminate on @ TOUCH CALLING
instrument, whether or not, that instrument is provided by the
‘Telephone Company or by the customer.” Touch Calling service was
optional for consumers.
While Tariff No. 3 describes Touch Calling service,
Tariff No. 1 governs Verizon's general provision of telephone
services in Hawai'i and Tariff No. 2 describes Verizon's
residence exchange primary service. The rates, terms,
definitions, and regulations pertaining to Touch Calling service
and described in Tariff No. 3 are in addition to those
established by Tariff No. 1 which governs Verizon’s general
provision of telephone services in Hawai'l. Tariff No. 2
discloses the rates, terms, definitions and regulations relating
to exchange primary service, the basic telephone service offered
FOR PUBLICATION***
a
by Verizon. exchange primary service is defined in Tariff No. 2
as the basic trensmission path between the customer's premis
and Verizon's central office. Tariff No. 2, Section 1, does not
specify Touch Calling service as being part of the exchange
primary services for residential subscribers.
Beginning in 1983, Verizon began to upgrade its
equipment by switching from analog to digitel equipment. By the
end of 1998, all of the switches in Verizon's central offices
were equipped to provide touch tone dialing and “any consumer in
Hawai'i who had a touch tone phone could acquire touch tone
dialing capability by plugging a touch tone phone into the wall
jack connected to a touch-tone capable line.” In an October 21,
1998 Honolulu Advertiser article, The Director of Public Affairs
for Verizon's predecessor, GTE Hawaiian Telephone Company, Inc.
stated that although the cost of providing Touch Calling services
had declined due to more efficient computerized switching
equipment, the Touch Calling charge remained in effect to enable
the recovery of costs for other services such as basic local
residential service.
In 1993 and 1995, Verizon proposed eliminating the
separate Touch Calling fee described in Tariff No. 3, an act that
would have made Touch Calling service part of the basic telephone
service Verizon offers and would have required rebalancing of
rates. The HPUC, however, rejected Verizon’s proposal on both
‘***POR PUBLICATION*#*
ee
occasions, ordering that the existing rate structure be kept
intact.
Verizon represents to Hawai'i consumers that they must
pay an extra monthly fee in order to receive Touch Calling
service, On its website Verizon state:
This Line enhancement, also know as Touch Tone, allows you
To use » push button telephone end is necessary for most of
the additional features available for use with your
telephone systes.
Consumers, however, are able to access and enjoy the Touch
Calling services from their touch tone phones without paying the
additional monthly fee.
In.
on April 11, 2003, Plaintiffs, individually, and on
behalf of a class consisting of all Hawai'i consumers who paid
fees to Verizon for Touch Calling service for the years 1968
through the present, filed a civil complaint against Verizon.
Plaintiffs are customers of Verizon’s telephone service who
selected and paid for the Touch Calling service.
Plaintiffs claim that Verizon engaged in false, unfair,
and/or deceptive practices in violation of HRS §§ 480-2 et seq.
(prohibiting unfair or deceptive practices in any trade or
commerce)? and 481A st seq, (prohibiting deceptive trade
F “ung § 480-2(a) states that “{u)nfair methods of competition and unfair
or deceptive acts or practices in the conduct of any trade er comerce are
‘antavefen.”
‘***FOR PUBLICATIONS#*
a
practices by any person including individuals, governments,
corporations, and other entities)? because identical telephone
services are provided to consumers who pay the fee and consumers
who do not pay the fee.
on June 10, 2003, Verizon filed its Motion to Dismiss
Complaint, arguing that the Complaint was barred by both the
filed rate and primary jurisdiction doctrines.
fon August 21, 2003, the court entered ah Order Denying
Verizon's Motion to Dismiss in its entirety.
on September 2, 2003, Verizon filed an Expedited
Application for Interlocutory Appeal of Order Denying Verizon's
Motion to Dismiss, and to Stay Action During Appeal.
on October 21, 2003, the court entered an Order Denying
Verizon's Expedited Application for Interlocutory Appeal, And to
Stay Action.
on June 18, 2004, Verizon filed its Motion for Summary
Judgment. On duly 13, 2004, Plaintiffs filed their opposition to
the Motion. On July 23, 2004, Verizon filed a reply.
Fag § 481A-3la) states in pertinent part that “[al person engages ino
deceptive trade practice when, in the course of the person's busin
Nocation, of occupation, the person: . .. (12) Engages in eny other conduct
which sinslarly creates @ likelihood Of confusion or of misunderstanding.”
HRS § 4814-2 defines » "person for purposes of this chapter as
including "an individual, corporation, government, or governnental subdivision
for agency, business trust, estate, trust, partnership, unincorporate
Sescciatice, txo or more of any of the foregoing having @ joint oF common
interest, of any other legal or comercial entity.”
‘***FOR PUBLICATION***
on August 17, 2004, the court entered an Order Granting
Defendant [Verizon's] Motion For Summary Judgment and dismissed
the Complaint with prejudice.
on Novenber 4, 2004, the court entered the Final
Judgment and Notice of Entry of Order.
On December 1, 2004, Plaintiffs filed a Notice of
Appeal.
um.
on appeal, Plaintiffs contend (1) “[t]he (court) erred
When it held that the action is barred by the filed rate
doctrine” and (2) “{t]he [court] erred when it held that the
action is barred by the primary jurisdiction doctrine.” Verizon
answers that (1) “[t]he [court] correctly held that the filed
rate doctrine bars (Plaintiffs’] claims on the undisputed facts
of the case” and (2) “[t)he (court) properly found that
(Plaintiffe’) claims are also barred by the doctrine of primary
jurisdiction.”
Plaintiffs reply that (1) "Verizon cannot and does not
dispute that consumers have the right to bring deceptive business
practice lawsuits in (Hawai'i) courts,” (2) [t]he recent United
States Supreme Court decision of Bates v. Dow Aarosciences
LuksGe, U.S. _, 125 S.Ct. 1788 (2005), provides further
support that the filed rate and primary jurisdiction doctrines
are not applicable,” (3) “[t]he only issue to be decided is
**4FOR PUBLICATION***
whether Verizon engaged in false, unfair and/or deceptive
business practices,” (4) “Plaintiffs’ lawsuit does not challenge
Verizon's rates,” (5) Plaintiffs challenge only Verizon's
description of the benefits of optional Touch Call service, and
(6) “[Hawai‘s} consumers are not engaging in ‘illicit conduct’ to
obtain Touch Calling.”
Plaintiffs request that this court “reverse” the order
granting summary judgment in favor of Verizon and “allow this
action to go forward on the merits.”
W.
A grant of summary judgment is “appropriate where there
is no genuine issue as to any material fact and the moving party
Hoss v. Stouffer
Hotel Co., 76 Hawai'i 454, 457, 879 P.2d 1037, 1040 (1994)
(citing Usunomiva Entere., Inc. v. Hoomuku Country Club, 75 Haw.
480, 497, 866 P.2d 951, 961, reconsideration denied, 76 Hawai'i
is entitled to judgment as a matter of law.
247, 871 P.2d 795 (1994). In other words, “sunmary judgment
should not be granted unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy
and establishes affirmatively that the adverse party cannot
prevail under any circumstances.” State v. Zimring, 52 Haw. 472,
475, 479 P.2d 202, 204 (1970) (quoting Phoenix Sav. 6 Loan, Inc.
vs Aetna Casualty & Surety Co., 361 F.2d 245, 249 (4th Cir.
1967)). “A fact is material if proof of that fact would have the
‘+*4P0R PUBLICATION***
effect of establishing or refuting one of the essential elements
of a cause of action or defense asserted by the parties.”
Hulsman v. Henmeter Dev. Corp., 65 Haw. 58, 61, 647 P.2d 713, 716
(1982) (internal citations omitted).‘ We affirm the court's
November 4, 2004 final judgment on the ground that the filed rate
doctrine barred the action.
v.
a
Plaintiffs first argue that the court erred in holding
that their claim was barred by the filed-rate doctrine. this
doctrine, also known as the filed-tariff doctrine, essentially
prohibits a regulated entity from charging rates for its services
that differ from the rates filed with the appropriate federal
regulatory agency. Ark. La. Gas Co, v. Hall, 453 U.S. $71, 577
(1981).
“Walle we ultimately affirm the court, we do not necessarily agree with
Verizon's contention that because Plaintiffs entered into a joint statenent of
undisputed facts and Plaintiffs recognized that the “agreed-upon facts were
Bufticient to decide the() defenses». « {,] there can be no disputed
material facts relevant to the legal questions before this (c]ourt.” The
Question of whether a practice constitutes an unfair or deceptive trade
practice is ordinarily 2 question of fact. Kukui Nute of Hawaii, Inc, vB
Baird &co., 7 Haw, App. 998, 612, 789 P.24 501, $11 (1990) (citing adalah
Gocrs C3, v. A. Gender , 486 F.Supp. 131 (D. Colo. 1980))-
That Plaintiffs have submitted to a joint statement of facts with Verizon and
that Plaintiffs recognize that those facts are sufficient to decide defenses,
Goes not mean that Verizon is necessarily entitled to summary Judgment.
We agree with Plaintiffs that as a general proposition « dispute may
ining of facts anc the inferences that may be cravn fron
Widenee and all inferences must be viewed in the light
ost favorabie to the non-moving party,” Kuksl Mute, 7 Haw. App. at 610, 789
P.2d at $10 (citing Carrington 2, Seara, Roebuck 4 Co, © Haw. App. 194, 683
Pl2g 1220 (1984)}, se cannct be taid thet Plaintiffs “cannot prevail under eny
Circumstances” sinply Because they confirm the facte upon which Verizon bases
Ste defenses
*#*FOR PUBLICATION***
ee
‘The filed-rate doctrine was articulated a century ago
in the context of the Interstate Commerce Act.
sa ne ci 1 ss the onl
GHEEKID Shippers ond travelers are charged with notice of
Enand they ss well as the carrier must abide by it, unless
{t's foune by the Commission to be unreasonable.
Louisville & Nashville R.R. Co. v. Maxwell, 237 U.S. 94, 97
(1915) (emphasis added). Shippers and carriers were thus bound
under the doctrine to the rate set forth in the duly filed tariff
and were prevented from "invoking common-law claims and defenses
such as ignorance, estoppel, or prior agreement" to establish 2
rate different from the tariff rate. Beiter v, Cooper, 507 U.S.
258, 266 (1993).
‘The filed-rate doctrine was eventually applied beyond
the interstate transportation industry, "extend[ing] across the
spectrum of regulated utilities," Ark, La. Gas Co., 453 U.S. at
577, with the twin aims of (1) preventing service or rate
discrimination among consumers and (2) preventing courts from
intruding upon the rate-making authority of federal agencies.
Bryan v. BellSouth Conmunications, Inc., 377 F.3d 424, 429 (4th
Cir. 2004). The doctrine sets forth principles that may appear
“harsh” under certain circumstances in order to advance the dual
goals of promoting nondiscrimination and non justiciability. Be
Tel, & Tel. Co, v, Central Office Teli, Inc., 524 U.S. 214, 223
(1998). For example, notice of the terms and rates established
in a filed tariff is imputed to customers. By . 2
10
+**POR PUBLICATION*#*
299 F.3d 637, 840 (9th Cir. 2000). Therefore, "(i]gnorance or
misquotation of rates is not an excuse for paying or charging
either less or more than the rate filed.” Maxwell, 237 U.S. at
97. Furthermore, even a carrier's intentional misrepresentation
will not bind the carrier to its promised rate if the promise
contradicts the rate established in the published tariff.
Central Office Tel,, 524 U.S. at 222 (citing Kansas City Southern
By, Co. vs Carl, 227 U.S. 639, 653 (1913), Therefore, neither
the tort of the carrier nor the existence of a contract will work
to vary or enlarge the rights defined in a tariff. Keogh ve
Chicago & Northwestern Ry, Co., 260 U.S. 156, 163 (1922).
B.
Despite its federal origins, the principles of the
filed-rate doctrine have also been applied in cases where the
rates are filed with a state regulatory authority rather than a
federal one. See Molokoa Village Dev, Co. v. Kauai Elec. Cou, 60
Haw. 582, 587, 593 P.2d 375, 379 (1979) (stating that the rule
that prevents carriers from being bound under equitable doctrines
to their undercharges "applies equally to other utilities" and
citing, inter alia, South Tahoe Gas Co, v, Hofmann Land
Improvement Co., 25 Cal. App. 3d 750 (1972), a case involving a
utility company that filed rates with a state regulatory agency);
‘Tex, Comercial Eneray v, TAU Enerav, Inc, 413 F.3d 503, 509-10
(Sth Cir. 2005) (holding that energy rates subject to the Public
a
*#*FOR PUBLICATION*#*
_
Utility Comission of Texas’ oversight invoked the filed-rate
doctrine); Korte v. Allstate Ins, Co., 48 F. Supp. 2d 647, 652
(B.D. Tex. 1999) (extending the application of the filed rate
doctrine to cases involving insurance rates where a state agency
has authority to determine reasonableness of the rates “pursuant
to a statutory scheme”); Wegoland Ltd, v, NYNEX Corps, 27 F.3d
17, 20 (2d Cir. 1994) (stating that "the rationales underlying
the filed rate doctrine apply equally strongly to’ regulation by
state agencies"); Hid Inc, v. Northwestern Bell Tel. Co., 954
F.2d 485, 494-95 (8th Cir. 1992) (where the rate in question was
filed with the Minnesota Public Utilities Commission, the court
found “no reason to distinguish between rates promulgated by
state and federal agencies" and held the filed-rate doctrine
barred plaintiff's RICO claims); Taffet v. Southern Co, 967 F.2d
1483, 1494 (11th Cir, 1992) (holding the filed-rate doctrine
applicable in cases where the rate at issue was set by a state
rate-naking agency if the legislature endowed the agency with the
power to determine the reasonableness of rates).
vi.
Within the telecommunications sector, judicial
treatment of claims that directly attack the validity or
reasonableness of rates or terms defined in a tariff filed with a
federal agency varies depending upon the jurisdiction. Some
1
‘***POR PUBLICATION***
courts hold that challenges to the validity or reasonableness of
rates, terms or conditions in long-distance service contracts are
questions of federal law and cannot be brought as state law
claims. See Bryan, 377 F.3d at 429 (holding that a “claim that
seeks to alter the terms of the relationship between carrier and
consumer set forth ina filed tariff . . . presents a federal
Boomer v, ATST Corp., 309 F.3d 404, 420 (7th Cir.
2002) (holding that Section 201(b) of the Communitations Act
quest ion":
which declares unlawful all charges and practices that are unjust
or unreasonable, evidences Congressional intent that federal law
govern the validity of rates, terms, and conditions in long-
distance telephone contracts (citing 47 U.S.C. § 201(b))). In
contrast, other courts hold that the filed-rate doctrine bars all
claims, whether state or federal, that challenge the validity or
reasonableness of rates in telephone service contracts. See
Poulos v. Caesars World, Inc., 379 F.3d 654, 671 n.5 (9th Cir.
2004) (stating that the filed-rate doctrine bars both state and
federal clains that “challenge the terms of a tariff that a
federal agency has reviewed and filed” (internal quotation marks
and citation omitted); Fax Teleconmunicaciones Inc. v. ATéT, 138
F.3d 479, 489 (2d. Cir. 1998) (indicating that because the filed-
rate doctrine protects the exclusive role of federal agencies in
determining reasonable rates for teleconmunications services,
judicial enforcement of the promised rate and an award of damages
a3
‘s4FOR PUBLICATION®#*
a
to plaintiff would embroil the court in “setting and applying a
rate apart from that judged reasonable by the FCC, in violation
of the nonjusticiability strand of the filed rate doctrine”).
Even when claims do not directly attack the validity or
reasonableness of the rates or terms defined in a filed tariff,
eo Dreamscape Desicn, Inc. v. Afinity Network, Inc, 441 F.3d
665 (7th Cir. 2005), courts have held that the filed-rate
doctrine bars claims that seek damages if an award of damages
would have the effect of imposing any rate other than that
reflected in the filed tariff.” Id, at 669. In Dreamscape, the
plaintiff customer asserted state law claims against defendant
telephone service provider including fraudulent advertising, in
representing that the provider billed at a per-minute rate rather
than the Touch Calling unit rate. Id. at 672. The plaintiff
argued that the filed tariff doctrine was not invoked (and hence,
its state law claims were not preempted by federal law) by
maintaining that its amended complaint posed no challenge to the
defendant’s rates or filed tariff, id, at 670.
In that case, the United States Court of Appeals for
the Seventh Cireuit found it necessary “to look not only to the
nature of the claims advanced, but also to the relief sought” in
order to determine whether the filed-rate doctrine would result
in federal preemption of plaintiff’s state law claims. Id. at
672. The appeals court held that the filed-rate doctrine did
us
‘***FOR PUBLICATION*#*
indeed bar the plaintiff's action because it sought money
danages, specifically, the amount the plaintiff claimed to have
overspent for the service in reliance on defendant's allegedly
fraudulent representations. Id, at 672-73. The appeals court
held that awarding damages to the plaintiff would invalidate the
filed rates and would “effectively grant @ lower rate to
[plaintits] than to other customers not included in the putative
class.” Ide
Similarly, that court denied the plaintiff’s request
for punitive damages, holding that such damages would “amount to
a retroactive rate change as well.” Id. at 673) see also Hill v
BellSouth Teleconms., Inc., 364 F.3d 1308, 1325-17 (11th cir.
2004) (denying an award of damages to plaintiff for although
plaintiff argued that ner claim did not attack the filed rate
directly, the award of compensatory damages would retroactively
reduce the rate paid by the plaintiff to one below the filed rate
paid by defendant's other customers).
B.
Courts have also addressed the question of whether the
{iled-rate doctrine bars claims that neither directly attack the
rates or service terms in a filed tariff nor seek money damages.
In Marcus vs ATE? Corp., 138 F.3d 46 (2d Cir. 1998) [hereinafter
“Warcus II], the circuit court of appeals held that the
principles of the filed-rate doctrine applied to bar the
as
FOR PUBLICATION***
plaintiffs subscribers’ request for an injunction against
defendant ATéT’s allegedly fraudulent practice of failing to
disclose certain aspects of its billing practice. Id, at 62-64.
Although ATéT’s practice of rounding up to the next minute in
telephone service billing was disclosed in the tariff it filed
with the FCC, plaintiffs argued that ATéT’s failure to
specifically disclose this practice in its advertisements and
contracts with customers was inter alia an act of’ fraud and
deceptive practice. Id. at 51.
‘The second circuit held that granting injunctive
relief, unlike an award for danages, would not subvert the filed~
rate doctrine’s goal of promoting nendiscriminatory prices since
plaintiffs would still pay the filed rate. Id, at 62. Likewise,
an award of injunctive relief, in contrast to an award of
damages, would not undermine the filed-rate doctrine’s goal of
nonjusticiability as such injunctive relief “would neither enmesh
the court in the rate-making nor undermine the regulatory
authority of the FCC.” Id, Nonetheless, the Marcus court
dismissed the plaintiffs’ claim for injunctive relief in part
because plaintiffs could not prove reasonable reliance on AT&T's
statements required for recovery under the claims of negligent
nisrepresentation and deceptive practices. Id. at 63-64. Given
that the filed-rate doctrine presumes knowledge on the part of
the customer of the rates and terms contained in a filed tariff,
16
‘***FOR PUBLICATION***
a
ids at 63, plaintiffs were prohibited from asserting that they
“yeasonably relied on any misrepresentations by ATST(,]” ide
Furthermore, the circuit court of appeals determined
that the plaintiffs "suffered no legally cognizable damages
because they paid the tariff rate." Id, at 64 (quoting Marcus v.
ATT Corp,, 938 F. Supp. 1158, 1172 (S.D.N.¥ 1996) [hereinafter
“Marcus I”), aff'd by Marcus 11, supra. See also Guglielmo v.
Worldcom, Ine., 808 A.2d 65, 70 (N.H. 2002) (holding that “[a]ny
subscriber who pays the filed rate has suffered no legally
cognizable injury because the rate is per se reasonable(]”
(internal quotation marks and citation omitted)). The Marcus IT
court thus denied injunctive relief to the plaintiffs in part
because the filed-rate doctrine precluded plaintiffs from proving
two elements essential to the claims for negligent
misrepresentation and deceptive acts: (1) reasonable reliance on
misstatements made by AT6T and (2) proof of damages. 138 F.3d at
64.
Stein v, Sprint Corp., 22 F. Supp. 24 1210 (D. Kan.
1998), also addressed the question of whether the filed-rate
doctrine barred an award of injunctive relief against defendant
telephone service provider’s alleged deceptive advertising. The
plaintiff there argued inter alia that defendant Sprint Corp.
violated Kansas consumer protection statutes by failing to
adequately inform customers that a surcharge would be assessed
vv
‘**FOR PUBLICATION***
a
against calls made with fixed-rate calling card plans. Id. at
1211, The district court agreed that under the filed-rate
doctrine’s presumption of knowledge principle, “plaintiff cannot
have reasonably relied on any representation or omission by
defendant concerning ite charges, and any cause of action
requiring such reliance must therefore be dismissed." Id. at
12a.
That court additionally concluded that because the
plaintiff paid the filed rate in question, under the filed-rate
doctrine, "plaintiff cannot have suffered any injury from the
alleged deceptive practices." Id. Nonetheless, the court held
that the filed-rate doctrine did not bar the plaintiff’s claim
for an injunction against Sprint's advertising because the basis
for the plaintiff's claim, the Kansas Consumer Protection Act
(KCPA), K.8.A. $$ 50-623 to -644, did not require consumers to be
aggrieved" in order to bring a class action claim for injunctive
relief under § 50-634(c). Id, at 1214-15, The district court
emphasized that the KCPA required that consumers be aggrieved in
order to bring an action for damages or civil penalty’ but the
KCPA had no such “aggrieved requirement” for class actions
seeking injunctive relief.* Id. Thus, the plaintiff’s claim for
FGos.k. § 50-654 B) provides in relevant part that “[2] consuner who is
aggrieved by @ violation of this act may recover, but not in a class action,
Gadiges or a civil peneityl.]” Stein, Sorint Cor., 22 F. Supp. 26 1210,
2214 (D. Kan. 1998) (quoting K.S.A. § 50-636(B)7.
© s.as § $0-634 (0) tat
(continued...)
ae
+*4FOR PUBLICATION***
a
injunctive relief was not barred by the filed-rate doctrine
because "a consumer need not have been aggrieved or suffered loss
in order to bring a class action for injunctive relief" under the
KCPA. Id. at 1215.
vit.
This court applied @ key principle of the filed-rate
doctrine in Molokoa Village. There, the plaintiff-appellee
developer claimed that it was entitled to reimbursement from the
defendant-appellant electric utility company pursuant to an oral
agreenent, for electric and telephone systems installation costs
in a particular subdivision. 60 Haw. at 583, 593 P.2d at 377.
‘The company argued that it could not be bound to its promise to
reimburse the developer in the amount requested because such
reimbursement would violate the provisions of a tariff filed with
and approved by the HPUC. Id, at 583-84, 586, 593 P.2d at 377~
78. Although this court did not refer to the filed-rate
doctrine, a core principle of the doctrine was applied to resolve
the central question of “whether (the tariff] prevent{ed) the
enforcement against the [clompany of an otherwise enforceable
(continued)
Whether consumer seeks or is entitled to recover danages
Or has an adequate remedy at lax, a consuner may bring &
Glass action for declaratory Judgment, an injunction and
Gppropriate ancillary relief, except denages, against an act
of practice that violates this act.
skein, 22 F. Supp. 2d at 1215 (quoting K.5.A. § $0-5241c!)
as
‘***P0R PUBLICATION*** .
ee
undertaking to reimburse” @ certain portion of the developer’
costs. Id, at 586, $93 F.2d at 378.
In analyzing this issue, this court cited a principal
tenet of the filed-rate doctrine that “a public utility can
enforce payment for its services in accordance with its
established tariff, notwithstanding any agreement to charge
less.” Id. at 587, 593 P.2d at 379 (citing 88 A.L.R. 2d 1375
(1963)). Tt was noted that other courts hold that knowledge of 2
tariff is imputed to custoners dealing with a utility such that
the customer is a “knowing violator” unentitled to equitable
relief when both parties engage in conduct that violates the
tariff. Id. at 589-90, 593 P.2d at 380. See also Evans, 229
F.3d at 840-41 (rejecting plaintiff’s claim that defendant had
duty to disclose additional information to customers about an
assessment that was disclosed in a duly filed tariff).
‘the oft-cited policy behind this stringent rule is that
hardship experienced by those who relied on a carrier's
misquotation of rates
nay not be permitted to destroy the more far-reaching 1
To neintein respect for the rates established under th
Commission's procedure and on which other shippers and -
Gomon carriers alike mist be ble to rely upon as realistic
facta rather than a screen which conceals illegal private
practices.
Molokoa Village, 60 Haw. at 587, 593 P.2d at 379 (ellipsis points
in original) (quoting Browser 4 Campbell v. Knox Glass, Inc., 390
F.2d 193, 196-97 (3d Cir. 1968)). This court, however, did not
20
‘*#*POR PUBLICATION***
a
reach the question of whether the developer was a knowing
violator who should be denied recovery under equitable doctrines
for the company’s breach of its promise to reimburse, as the
company could not prove that providing reimbursement to the
developer for installation costs violated the tariff. Id. at
588-92, 593 P.2d at 379-82. Furthermore, knowledge of the
company’s tariffs “would not have made (the developer] aware that
the undertaking of the [clompany to reimburse the costs of the
underground installation was illegal{.]” Id, at $90, 593 P.2d at
380. Thus, st was held that due to the "failure of proof of
illegality," the company could not assert that its tariff
precluded enforcement of its promise to reimburse the developer
in the amount sought. Id. at 592, 593 P.2d at 381-82.
virt.
As previously mentioned, in the instant case,
Plaintiffs assert that Verizon's representations that payment of
fees was necessary for customers to receive the Touch Calling
services, violated HRS § 480-2 and HRS § 481A et sea. HRS
chapter 480 does not expressly define “unfair or deceptive acts
or practices." This court, however, has stated that “(al
practice is unfair when it offends established public policy and
when the practice is inmoral, unethical, oppressive, unscrupulous
or substantially injurious to consumers.” Hawai'i Cmty, Fed.
Credit Union v. Keka, 94 Hawai'i 213, 228, 11 P.3d 1, 16 (2000)
21
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a
(brackets in original) (internal quotation marks and citation
omitted). HRS § 481A-3 enumerates conduct that constitutes
deceptive trade practices and contains a catchall clause in
§ 481A-3(a) (12) to the effect that “any other conduct which
similarly creates a likelihood of confusion or of
misunderstanding" is a deceptive trade practice. This court has
referred to the meaning of a deceptive practice by citing the
definition employed by federal courts with respect to “an act
causing, as a natural and probable result, @ person to do that
which he [or she] would not otherwise do." Keka, 94 Hawai' at
228, 11 P.3d at 16 (brackets in original) (citing Bockenstette v.
EEC, 134 F.2d 369 (10th Cir. 1943).
Claims alleging unfair or deceptive acts that are
brought under HRS § 480-2 and seek damages or injunctive relief
require a showing of injury. HRS § 480-13(b) (Supp. 2004)
provides in relevant part that “alny consumer who is injured by
any unfair or deceptive act or practice forbidden or declared
unlawful by section 480-2: (1) Imlay sue for damages sustained
. «and (2) Imlay bring proceedings to enjoin the unlavé!
practices(.]" (Emphases added.)
Claims alleging a deceptive trade practice under HRS
chapter 481A and seeking injunctive relief do not require a
showing of actual injury but only that there is likelihood of
injury. HRS § 481A-4(a) (1993) provides in relevant part that:
2
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a
ers to be damased ads
Eiger iis principles of equity end on terms that the court
considers reasonable.
: to deceive i i
(Emphases added.)
Furthermore, claims under chapter 481A do not require a
showing of actual confusion or misunderstanding. HRS § 481A-3(b)
states that “[iJn order to prevail in an action under this
chapter, a complainant need not prove . . . actual confusion or
misunderstanding.” (Emphasis added.)
mx.
We agree with Verizon that the filed-rate doctrine bars
Plaintiffs’ claims alleging false, unfair, and/or deceptive
practices. The filed-rate doctrine is applicable in this case as
it involves @ public utility (Verizon)’ subject to the authority
of @ state regulatory agency, the HPUC, pursuant to HRS § 269-16
(Supp. 2004). HRS § 269-16(a) (Supp. 2004) provides in relevant
part
be filed with the public urilities commission.
Fares, classifications, charges and rules of every public
Utility shell be published by the public utility in such
GRE 269-1 (Supp. 2004) states in relevant part:
mybiic utility" includes every person who may own,
control, operate, of manage as owner, lessee, trustee,
Fecsiver, of otherwise, whether onder a franchise, charter,
License, articles of agsociation, or otherwise, any plant or
equipment, or any part thereof, directly or indirectly for
public use, for the conveyance or transmission of
Peieconmunications meetages ..- within the State, or
between points within the state(.)
23
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manner a2 the public utilities comission may require, and
Copies furnished to any person on request.
(Emphasis added.) HRS § 269-16(b) (Supp. 2004) provides in
relevant part:
ractice et spandone
dave" notice ae prescribed in section 2es-17(b) to the
(Emphases added.)
Thus, HRS § 269-16 expressly empowers the HPUC “to fix
rates, charges and practices of any public utility and to
prohibit rebates and unreasonable discrimination between users
and customers.” Molokoa, 60 Haw. at $86, 593 P.2d at 379.
“[RJates and charges should be filed with the (HPUC] and should
not be departed from except on prior approval of the (HPUC].”
Id, (citing HRS § 269-16).
A grant of summary judgment is appropriate only when
“there is no genuine issue of material fact and the moving party
is entitled to judgnent as a matter of law.” Pac. Int'l Servs
Corp. v. Muri, 76 Hawai'l 209, 213, 873 P.2d 88, 92 (2994)
(quotation marks omitted and citations omitted). Although the
existence of an unfair or deceptive trade practice is ordinarily
a question of fact, Kukui avai ve R. Bair
Gos, 7 Haw App. 598, 612, 789 P.2d 501, 511 (1990) (citing Adolph
Coors v. A, Genderson & Sons, Ince, 486 F. Supp. 131 (D. Colo.
24
+**POR PUBLICATION***
Os
1980)), we hold that pursuant to the filed-rate doctrine,
Plaintiffs’ claims fail as a matter of law. Plaintiffs cannot
demonstrate that Verizon's allegedly inadequate disclosures
constituted an unfair or deceptive trade practice under HRS
55 490-2 et seg, or HRS $$ 481A st sea, because: (1) Verizon's
tariffs on file with the HPUC disclosed that the Touch Calling
fees should be assessed against customers receiving Touch Calling
services and (2) knowledge of these disclosures contained in the
tariff is imputed to customers, and, thus, (3) Plaintiffs can
prove neither the injury that is required for recovery under HRS
§ 480-2 nor the likelihood of damage that is required for
recovery under chapter 481A.
Verizon's Tariff No. 3 filed with the HPUC clearly
disclosed that Touch Calling fees should be assessed against
custoners receiving Touch Calling services. To reiterate, that
Tariff states that *{i)t is an intent to apply TOUCH CALLING
rates and charges whenever a customer is served by exchange lines
equipped with TOUCH CALLING capability which terminate on a TOUCH
CALLING instrument (.]” (Emphases added.) (Brackets in original.)
‘The plain and unambiguous language of Tariff No. 3 evinces the
requirement that Touch Calling rates be paid in return for
receipt of Touch Calling services. Because a customer, by
definition in the Tariff, receives Touch Calling service when he
or she Yoriginaties) . . . calls . . . through the use of a
25
‘*sFOR PUBLICATION*#*
‘telephone equipped with push buttons in lieu of a rotery dial,”
the customer cannot escape the tariff-imposed obligation to pay
‘the Touch Calling rates whenever he or she uses a push button
phone connected to Touch Calling-capable lines to make calls.*
Moreover, that Tariff No, 2 describes and governs basic
‘exchange primary service and does not specify Touch Calling as
being part of this service, indicates that Touch Calling service
is not a feature included in Verizon's exchange primary service,
Tt is not material that as a result of Verizon’s network
upgrades, customers are technically capable of acquiring Touch
calling service without paying the fee simply by plugging a push
button phone inte a wall jack that happens to be connected to a
touch-tone capable line.’ Touch Calling services have not been
7 We are not persuaded by Flaintiffs' argunent that the Touch Calling
charge con “oly be imposed when the exchange lines, not the network or
Suitehes, are served by Touch Calling.” (Baphasis in original.) Plaintiffs
Argue that it is the central office equipment rather than the exchange lines
that are equipped with Touch Calling capability. To support their contenticn,
Pleintifte cite the testimony of Verizon's own agent, Dr. Robert T. Tanimurs
tho testified before the HPUC that “touch calling service . . . can be
provided without significant additions) costs in electronic central offices."
Exchange Lines ace the physicel wire running from s custoner’s prenises
to the telephone company’s central office. It appears fair and accurate to
‘exchange Lines are equipped with Touch Calling capability because the
Lines are connected to equipment possessing Touch Calling capability. While
Plaintiffe direct our attention to the holding in ZADMS, “Inc, vs Consol,
Exeightuave that “[a) tariff generally is strictly construed ageinst the
Carrier. , and consequently any ambiguity or doubt is resolved in favor of
the shipper,” 619 F. Supp. 385, 382 (C.. Cal. 1985), we also recognize that a
tariff is “not to be read of applied in a manner which would lead to an unjust
Or absurd conclusien(,]" Glickfeld ©, Hovard Van Lines, Inc., 213 F.2d 723,
Ser (ath Cir. 1954). ‘In order to evold reaching an "unjust or absurd”
Conclusion, we conclude that the Touch Calling charge cen be inposed when the
‘exchange Lines are connected to equipment possessing Touch Calling capability.
» verizon suggests that customers who obtain Touch Calling services in
this manner without paying che requisite fee are engaging in “illicit
Conduct.” Plaintiffs respond by referring to the letter Verizon sent to its
(continued...)
26
‘***POR PUBLICATION®**
a
added sub silentio to the terms of Tariff No. 2, an act that
would render Tariff No. 3 completely redundant of Tariff No. 2.
Given that “a court should avoid interpreting a tariff
in a manner that would nullify specific or substantial tariff
provisions[,]” u ptways, 619 F. Supp.
385, 392 (C.D. Cal. 1985) (citing S, Pac, Co. v. Lothrop, 15 F.2d
496, 487 (9th Cir. 1926)), we discern no indication that Touch
Calling service has been incorporated into and is now also
governed by Tariff No, 2, ‘The Touch Calling service wai
available to customers under the lower filed rate governed by
‘Tariff No. 2. Rather, the Touch Calling service was available
only under the terms of Tariff No. 3. As Plaintiffs themselves
admit, “there are two filed rates - one for Touch Call service
and one for service without the Touch call option. . . .”
We therefore conclude that Tariff No. 2 and Tariff No.
3 plainly disclose that Touch Calling service is not included in
basic telephone service but, instead, is a separate service in
exchange for which the applicable Touch Calling fees must be
paid. Under the filed-rate doctrine Plaintiffs are presumed to
*(. continued)
costomers in 1989 informing then that if they wished to continue receiving
Touch Calling services they should call Verizon to subscribe or their lines
would be restricted to rotary service. Plaintiffs do not clearly explain the
Televance of this letter however, one may presune that Plaintiffs seek to
highlight the fact that the letter does not inform custoners thet plugging a
touch tone phone into the wall and receiving Touch Calling services without
paying the extra fee is contrary to the tariff, We do not reach the question
Sf whether such action by customers amounts to illicit conduct because such an
Unguiry 1s not necessary to our decision in this appeal.
BPN erizon cirects cur attention to the fact that it twice proposed
(continued
27
‘+*4FOR PUBLICATION***
OO
have knowledge of Verizon's tariff disclosures. Because Tariff
No. 2 and Tariff No. 3 make plain that Touch Calling fees should
be assessed in exchange for Touch Calling service, Plaintiffs are
deened to have constructive knowledge that the fees in question
were properly chargeable by Verizon regardless of any
nisrepresentations Verizon may or may not have made. See Evans,
299 F.3d at 640. Whether Verizon claimed that Touch Calling
service would be inaccessible to customers who did not pay the
fee is not determinative. Verizon's tariffs make plain that the
‘Touch Calling fees should be paid in exchange for Touch Calling
service and knowledge of these tariff provisions is imputed to
Plaintiffs under the filed-rate doctrine.
Plaintiffs thus cannot prove that Verizon's disclosures
to customers created a likelihood of confusion or
*(.. .continued)
eliminating the separate Touch Calling fee described in Tariff No. 3 and
{ncreasing service rates but that euch proposal was rejected by the HPUC.
Verizon also states that the Hawai Consuner Advocate opposed eliminating the
Touch Calling charge as it would cause “customers who do not use this value-
Added service . ss to pay the same rates as those customers who do use the
Service.” Verizon cites these facts to support its argument thet the HFUC
Fequired Touch Calling to “remain a separate, optional service” that had not
SiSplicitly been added” to the Basic primary exchange service described by
Tariff No, 2.
Plaintiffs emphasize that Verizon “never once asked the HPUC to only
‘eliminate the Touch Call rate” but instead suggests that Verizon “buried” that
Specific request within ite larger request for "massive rate increases.”
Plaintifts thus maintain that the HP0C only denied Verizon's request to
Gliminate Touch Calling fees because it was tied to the request to incred
fates overell and the rate increase request was not sufficiently supported by
SYellable, probative and substantial evidence,” This dispute between Verizon
ang Plaintiffs regarding the significance of the HFUC's refusal to eliminate
the separate Touch Calling feet is not determinative of our decision. 7
the Touch Calling fees remain separete and in addition to the fees for basic
primary exchange service is evident from a plain reading of Tariff No. 2 and
Tarift wo. 3
28
‘+##POR PUBLICATION***
a
misunderstanding that amounted to an unfair or deceptive
practice. Because Plaintiffs are presumed to have knowledge of
Verizon's tariffs that clearly disclose Verizon's right to charge
‘a fee whenever Touch Calling services are provided, we conclude
that no reasonable person could find that Verizon's
representations regarding thie issue were unfair. Knowledge of
the tariffs that is imputed to Plaintiffs also preclude a finding
that Verizon's disclosures amounted to a deceptive act or an act
that caused one to do that which he or she would not otherwise
do. Plaintiffs’ claims for damages and injunctive relief are
therefore barred as the underlying claims alleging unfair or
deceptive practices against Verizon fail as a matter of law.
x
We observe also that Plaintiffs have suffered no
“legally cognizable injury.” In their opening brief, Plaintiffs
naintain that they have suffered economic injury because
Plaintiffs would not have paid the Touch Calling fees but for
Verizon's alleged misrepresentation regarding the necessity of
paying the fee in exchange for Touch Calling service. (citing
Zanakis-Pico v. Cutter dodge, Inc., 98 Hawai'i 309, 317, 47 P.3d
1222, 1230 (2002) (declaring that “[f]alse or misleading
advertisements do their damage when they induce action that a
consumer would not otherwise have undertaken”).
29
+*#FOR PUBLICATION*#*
Under the filed-rate doctrine however, Plaintiffs were
bound to pay the Touch Calling fees in exchange for the service,
irrespective of any statements Verizon may have made. Thus,
Plaintiffs were not induced into paying the fees by Verizon's
representations. Rather, Plaintiffs were obligated under the
tariff to pay the fees inasmuch as they elected to receive the
Touch Calling service. We therefore find that Plaintiffs
suffered no “legally cognizable injury” because they paid the
filed rate in exchange for the Touch Calling service, in complete
accordance with the filed tariff. See Gualielmo, supra; Marcus:
, 938 F. Supp. at 1172. Hence, Plaintiffs cannot prove the
requisite injury for recovery under HRS § 480-2. See HRS § 480-
13(b) (stating that consuners iniured by unfair or deceptive acts
or practices declared unlawful under § 480-2 may sue for damages
or pursue proceedings to enjoin the unlawful practice). The only
consequence that could arise from reliance on Verizon's
8 authorized
representations would be to pay the Touch Calling f
by the filed tariff, a consequence that does not amount to @
legally recognized injury. Thus, Plaintiffs are unable to
legally prove that they were likely to be damaged by Verizon's
disclosures as required for recovery under chapter 481A. See HRS
§ 4818-4 (1993) (stating that an injunction may be granted to a
person likely to be damaged by a deceptive trade practice).
30
+**POR PUBLICATION***
Os
‘The instant case is distinguishable from Stein. In
that case, the district court ruled that under the filed-rate
doctrine the plaintiff did not suffer any injury from the
defendant's alleged deceptive practice. Stein, 22 F. Supp. 2d.at
1214. That court concluded, hoever, that the plaintiff's claim
for injunctive relief should not be dismissed because the
consumer protection statute upon which the plaintiff's claim was
based did not require that the plaintiff show he was aggrieved or
that he suffered a loss. Id, at 1215. In contrast, here,
Plaintiffs’ claims are based on HRS $$ 480-2 et sea, and $$ 4818
et sea, statutes that require @ showing of injury and a
Likelihood of injury, respectively. Plaintiffs cannot
denonstrate injury or Likelihood of injury because they received
services in exchange for fees as authorized by the filed tariff.
Thos, Plaintiffs’ claims for damages and injunctive relief under
HRS §§ 480-2 st sea, and $5 481A st seq, are barred by the filed-
rate doctrine.
xr.
We must note, also, that Plaintiffs’ claim for money
danages is barred for an additional reason - an award of money
danages would compromise the rate structure that was set forth in
the tariff filed with the HPUC. We recognize that Plaintiffs’
claims, on their face, do not challenge the rates Verizon charges
2
+*4FOR PUBLICATION*#*
for Touch Calling services. Plaintiffs directly attack neith
the validity of charging the Touch Calling service fee nor the
reasonableness of the fee itself. Nonetheless, an award of
damages to Plaintiffs in this case would violate the filed-rate
doctrine by “hav{ing] the effect of imposing [a] rate other than
that reflected in the filed tariff." Dreamscape, $41 F.3d at
669.
An award of damages would effectively iipose @ lower
xate for Touch Calling services than the filed Touch Calling rate
because the damages would have the same effect as a refund of all
or a portion of the Touch Calling fees. Plaintiffs have paid the
‘Touch Calling fee and received the Touch Calling services in
accordance with Tariff No. 3. Subsequent payment of money to
Plaintiffs with respect to the Touch Calling fee, whether in the
form of @ refund from Verizon or danages from a court for alleged
misrepresentation by Verizon, would create a “retroactive rate
change” that is barred by the filed-rate doctrine. See id. at
673. The doctrine instructs that deviation from a rate in a duly
fled tariff “is not permitted upon any pretext.” Maxwell, 237
U.S. at 97. Plaintiffs in fact concede that the doctrine bars
suits that would have the effect of changing filed tariffs.
Thus, an award of damages is prohibited as it would improperly
grant Plaintiffs exemption from the provision in Tariff No. 3
32
***FOR PUBLICATION***
that requires customers to pay the established Touch Calling fees
in exchange for receipt of Touch Calling services.
xIr.
Plaintiffs are correct in asserting that “lawsuits
asking the courts to interpret the filed rates, or to enforce the
filed rates, are not barred by the filed rate doctrine.” (Citing
Brown v, MCI Worldcom Network Serve, Inc., 277 F.3d 1166, 1171
(9th Cir, 2002).) The instant case, however, is unlike Brown.
In that case the Ninth Circuit held that the filed rate doctrine
did not bar plaintiff's claims that MCI had improperly charged
the plaintif£ a $10 minimum monthly usage fee for phone Lines
that were not available to the plaintiff. Id, at 1171-72. In
holding that the filed rate doctrine did not bar the plaintiff’s
claims, the Ninth Circuit stated that the plaintiff did not
challenge the tariff's validity either directly or indirectly but
was instead seeking to enforce the terms of the tariff which did
not allow the usage fee to be asi
sed for phone lines the
customer does not have. Id, In contrast, here, Plaintiffs are
not seeking to enforce Verizon's tariffs as Tariff No. 3
specifically authorizes Verizon to charge the Touch Calling rate
in exchange for the Touch Calling Services that Plaintifts
received.
Plaintiffs are also correct in asserting that the
filed-rate doctrine does not necessarily pose 2 bar to claims
33
+*+FOR PUBLICATION®+*
that do not challenge the reasonableness of rates or practices in
a filed tariff, (Citing Spielnolz v. Superior ct., 66 Cal. App.
4th 1366, 1374-76, 1381 (2001). As we noted, however,
Plaintiffs’ clains for danages do conpromise Verizon's rate
structure indirectly and Plaintiffs cannot prove that Verizon
engaged in an unfair or deceptive practice regarding the Touch
Calling fees because the filed-rate doctrine imputes knowledge to
Plaintiffs that such fees were properly chargeable.
Contrary to Plaintiffs’ suggestion, the instant case is
also unlike Qwest Corp. v. Kelly, 59 P.3d 789 (Ariz. Ct. App.
2002). In that case, the plaintiffs brought an action against
Qwest, a corporation selling telephone service. Id, at 791-92.
‘The plaintiffs alleged that Quest engaged in fraudulent and
deceptive practices and material misrepresentations of fact in
selling a wire maintenance service that Qwest knew or should have
known the plaintiffs (as residential tenants rather than
homeowners) did not need. Id, at 801. The Arizona Court of
Appeals in that case held that the filed-rate doctrine did not
bar the plaintiffs’ claims because the claims implicated
“{njeither the antidiscrimination nor the nonjusticiability
strand of the filed rate doctrine.” Id. The instant case
differs from Quest because the plaintiffs in that case paid the
filed rate but arguably did not receive a benefit or service in
34
‘*4FOR PUBLICATION***
exchange for the payment inasmuch as they may not have needed the
wire maintenance service for which they were charged. Id. In
contrast, here, Plaintiffs do not allege they received no benefit
in exchange for their payment to Verizon. Verizon acted in
accordance with its tariff by providing the Touch Calling service
to Plaintiffs in exchange for the Touch Calling f¢
Similarly, we find that Plaintiffs’ reliance on several
cases is misplaced. Kellerman v. MCI Telecomms. Corp, 493
N.E.2d 1045 (I11. 1986), did not involve a question of the
applicability of the filed-rate doctrine but a question of
whether state law claims were preempted by the federal
Communications Act. Cunditt v. GTE Cal., 101 Cal. App. 4th 1395
(2002), is unlike the instant case as there was no discussion in
that case of whether the billing practice in question was
disclosed in a tariff, Bates involved a question of whether the
state law claims (including inter alia defective manufacturing
and breach of expr
2 warranty) that plaintiff farmers brought
against defendant pesticide manufacturer were preempted in light
of a federal statute governing pesticide labeling.
U.S. at __, 128 8.Ct. at 1798. That case did not involve the
filed-rate doctrine; indeed it did not involve a tariff of any
kind.
35
‘**4FOR PUBLICATION*#*
XIII.
Because we hold that Plaintiffs’ clains are barred by
the filed-rate doctrine, we need not and do not reach the primary
jurisdiction issue. Therefore, the court’s August 17, 2004
judgment is affirmed.
on the briefs:
James Krueger and Joseph
W. Cotchett, Nancy L. Fineman,
& Nanci E. Nishimura, pro hac
vice, for plaintiffs-appellants.
Jeffrey S. Portnoy (Cades
Schutte) and Andrew G.
McBride, Helgi C. Walker, &
M. Evan Corcoran (Wiley Rein &
Fielding, LLP), pro hac vice,
for defendant-appellee Verizon
Hawaii, Inc.
36
Oper
Stasi Caner
—
BN
Yorn Ded by
hte
|
34738b44-edb2-4b01-823f-574a5010f85a | State v. Grace | hawaii | Hawaii Supreme Court | No. 25970
1 THE SUPRENE couRT OF THE STATE oF wawar'g)
nn ee st
STATE OF HAMAY'T, Petitioner-appellee, c
&
8235
ERNEST L. GRACE, SR., Respondent-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR NO. 02-1-0323)
1
(By: Moon, C.J., for the court!)
Petitioner-appellee State of Hawaii’s application for writ
of certiorari, filed April 19, 2005 is denied.
DATED: Honolulu, Hawai'i, April 29, 2005.
Mary Ann J. Holzl-Davis, FOR THE courT:
Deputy Prosecuting Attorney,
for petitioner-appellee
HY BES
fet gust NE Cop.
ay
AL
Nakayama, Accba, and Duffy, a.
|
2c037457-87cb-4d5b-8892-c069d3aa733a | Jones v. Iamwong | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION ***
No. 27045 Ean
81 dd¥ Sime
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
JOHN A. JONES, Plaintiff-Appeliant
CHANEEWAN TAMWONG, TYRONE P. COLLINS, ROCKY’S LIMOUSINE SERVICE,
Defendant s-Appellees
and
JOHN DOES 1-99, JANE DOES 1-99, DOE PARTNERSHIPS, CORPORATIONS
AND/OR OTHER ENTITIES 1-99, Defendants
APPEAL PROM THE FIRST CIRCUIT COURT
(CIV. No, 01-1-2939)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that the circuit
court's orders entered on December 7, 2004, January 18, 2008 and
February 17, 2005 were not reduced to a separate judgment, as
required by HRCP 58. See Jenkins v. Cades Schutte Fleming &
Wright, 76 Hawai'i 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 separate judgment pursuant to HRCP
58). If the aforementioned orders were reduced to a separate
judgment, the separate judgment was not entered by the time the
record for Civil No. 01-1-2939 was filed in the supreme court on
March 7, 2008. See Jenkins, 76 Hawai'i at 120, 869 P.2d at 1339
(“An appeal from an order that is not reduced to @ judgment in
favor of or against the party by the tine the record is filed in
*** NOT FOR PUBLICATION ***
the supreme court will be dismissed.”). Thus, this appeal is
premature and we lack jurisdiction. Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
Dated: Honolulu, Hawai‘i, April 18, 2005.
i .
De Klacrnse~
Piste OT toting Orie
Boor
ne roaies tre
|
ed2cf212-fa2d-4db1-be7f-5b482a5ff8b6 | Kalilikane v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOT FOR PUBLICATION ***
No. 26633
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
SAMUEL KALILIKANE, Petitioner-Appellant
STATE OF HAWAI'I, Respondent-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(8.P.P. NO. 04-1-0013)
‘ORDER DISMISSING APPEAI
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
on January 28, 2005, this court ordered Appellant
Samuel Kalilikane, pro se, to either file the opening brief in
the above entitled matter or an appropriate dismissal of the
appeal within 30 days fron the date of the order. Appellant has
submitted a letter indicating that he is withdrawing his appeal.
‘Therefore,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawas'l, April 12, 2005,
LRA rnao—
Pesta OS namtuya
oN
Bane deyhs
amd
|
f4c2613a-2ed6-49d2-a6b4-73e447617e4d | Tamang v. Tamang | hawaii | Hawaii Supreme Court |
Feypreme COURT’
fC vanare
No. 26779
ASHRAM TAMANG, Defendant-Appellee
i
ign 3 S
APPEAL FROM THE FAMILY COURT OF THE FIFTH Ci}
(FC-D No. 02-1-0138)
ORDER GRANTING PLAINTIFP-APPELLANT
(Sy: Moon, ¢.J., Levinson, Nakayama, Reoba, and Duffy, JJ.)
Upon consideration of Plaintift-appellant shelly
Reyne's motion to withdraw her appeal, the papers in support, and
the records and files herein,
17 IS HEREBY ORDERED that the motion is granted, and
this appeal is dismissed pursuant to HRAP Rule 42(b). The
Parties shall bear their own costs and fees.
DATED: Honolulu, Havas'i, May 2, 2005.
Shelly Reyne,
Plaintsfe-appellant,
Bro se, on the
Botton Gprte—
ar ee
Nae Grae anee
Qa
Gane Dechy bre
|
9d0fbe2a-255c-4068-b0fe-16c1ea6a6d42 | Athens v. Athens | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION ***
No. 26795
219
IN THE SUPREME COURT OF THE STATE OF HAWAI'E>
wy
OLIVIA DUNN ATHENS, Plaintiff-Appellee
‘oan
a
=
s
=
ws. z
JOHN STEPHEN ATHENS, II, Defendant-Appellant
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(EC-D NO. 02-1-0407)
ORDER DISMISSING REPEAL
‘Acoba, and Duffy, JJ.)
(By: Moon, C.J., Levinson, Nakayama,
upon review of the record, it appears that the family
court’s June 30, 2004 and August 11, 2004 orders did not end the
proceedings on the April 1, 2004 motion for post-decree relief
inasmuch as the June 30, 2004 order directed plaintiff’s counsel
to submit an affidavit of attorney's fees and costs “for the
[family] court's review and approval” and the family court has
not yet approved the anount of attorney's fees and costs.
Absent approval of the amount of attorney's fees and costs, the
appeal of the June 30, 2004 and August 11, 2004 orders is
premature. See Eamilian Northwest Inc, v. Central Pacific Boiler
& Piping, Ltd., 68 Haw. 368, 714 P.2d $36 (1986) (a post-judgment
order is an appealable final order under HRS $ 641-1(a) if it
finally ends the post-judgment proceedings, leaving nothing
further to be determined). Therefore,
aan
*** NOT FOR PUBLICATION ***
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, May 9, 2005.
|
c11797df-a64e-4f29-900f-b5d4cf1ad167 | State v. Meade | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOT FOR PUBLICATION ***
No, 26859
IN THE SUPREME COURT OF THE STATE OF HANAI'T:
STATE OF HAWAI'I, Plaintiff-Appellee
THOMAS H. MEADE, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HPD TRAFFIC NO. 5644513MO0)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that this court
informed Appellant by letter dated February 4, 2005 that the time
for filing the statement of jurisdiction expired on
Decenber 9, 2004 and the time for filing the opening brie:
expired on January 8, 2005, and that, pursuant to Rule 30 of the
Hawai'i Rules of Appellate Procedure, the matter 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,
IT IS HEREBY ORDERED that the appeal is dismissed.
DATED: Honolulu, Hawai'i, April 12, 2005.
é -
LEYoErrmie—
Brame 1 raters
Bre
Dine mast.
aad
|
5118371d-176a-4ad3-b599-49c4d517287c | Survivors of Young v. Island Feeling, Inc. | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 25661
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
Oo?
SURVIVORS OF ROY W. C. YOUNG,
Petitioner/Claimant-Appellant,
ISLAND FEELING, INC., and TIG P&C INSURANCE COMPANY,
Respondent /Employer/Insurance Carrier-Appellee,
and
SPECIAL COMPENSATION FUND,
Respondent /Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO. AB 2001-238 (2-88-19920))
RDF FOR WRI!
Duffy, J. for the court)
Petitioner/Claimant-Appellant’s application for writ of
rtiorari filed on April 15, 2005, is hereby granted.
DATED: Honolulu, Hawai'i, April 25, 2005,
FOR THE COURT:
Gore dah, |
Associate Justice
Rebecca L. Covert
for petitioner/claimant-
appellant on the writ
|
de1336c0-078a-4c53-982f-9b5da66d7ab0 | Office of Disciplinary Counsel v. DeSilva | hawaii | Hawaii Supreme Court | No. 27049
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner, qa 8
gin 3
ve. Be 2
TIM E, DESTLVA, =e OF
Respondent. BE =
a —a
(ODC 03-356-7956, 05-057-8209) a Lad
ORDER ALLOWING RESIGNATION IN_LIBUOF DISCIPLINE
(By: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, J.)
Upon consideration of the Office of Disciplinary
Counsel's “petition for order granting requ
t of Tim E. DeSilva
to resign from the practice of law in lieu of disciplin
and
the memorandum, affidavit and exhibits in support thereof, it
appears the motion is supported by Respondent DeSilva’s affidavit
and that the affidavit meets the requirements of Rule 2.14(a) of
the Rules of the Suprene Court of the State of Hawai'i ("RSCH”).
Therefore,
IT IS HEREBY ORDERED that the motion is granted and the
request of Respondent Tim E. DeSilva to resign in lieu of
discipline is granted, effective upon entry of this order.
IT IS FURTHER ORDERED that (1) upon the effective date
of this order, the Clerk shall remove the name of Tim E. DeSilva
from the roll of attorneys licensed to practice law in this
jurisdiction, and (2) within ten (10) days after the effective
date of this order, Respondent DeSilva shall deposit with the
Clerk of this court the original certificate evidencing his
License to practice law in this state.
aad
IT IS FINALLY ORDERED that (1) Respondent DeSilva shall
comply with the requirements of RSCH 2.16, and (2) the
Disciplinary Board shall provide notice to the public and judges,
as required by RSCH 2.16(e) and (f).
DATED: Honolulu, Hawai'i, May 4, 2005.
Michael T. Lee, for
petitioner on
the petition frm
Tin E. DeSilva,
respondent Ce
Pats Cr matsuyerree
Gere Baier fy
|
46f58080-2597-4f27-a6fc-96d1f3331dee | DFS Group L.P. v. Paiea Properties | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** NOT FOR PUBLICATION ***
No. 25662
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
DFS GROUP L.P., a Delaware limited partnership,
dba Hawaiian King Candies, Plaintiff-appellee,
300
|
PAIEA PROPERTIES, a Hawaii limited partnership
Defendant -Appellant.
yar ye
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 02-1-2012)
Sho HY | aud 9000
sue
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, and Acoba, JJ. ;
and Circuit Judge Pollack, assigned by reason of vacancy)
Defendant-appellant Paiea Properties [hereinafter,
Paiea) appeals from the Circuit Court of the First Circuit‘s!
February 13, 2003 order confirming the appraisal report.* Paiea
contends that the circuit court erred in confirming the appraisal
report inasmuch as: (1) the appraiser exceeded the powers
conferred upon him by the lease; (2) the appraiser was partial
toward plaintiff-appellee DFS Group, L.P. dba Hawaiian King
Candies (hereinafter, DFS]; and (3) the terms of the report were
indefinite and uncertain and, thus, precluded confirmation
+ the Honorable Eden Elisabeth Hifo presided over the matters
pertinent to this appeal
+ We note that Paiea's notice of appeal indicates that Paiea
appeaied trom the February 24, 2003 notice of entry of judgnent. However, it
from the record thet Paiea actually seeks appellate review of the
2003 order confirming the appraiser's aeard. indeed, tan order
bitration avare ie 2 final judgeent from which sn appeal may
be taken. : 90 Hawas's 267, 173, 977 Bead
27s, "173 | (as98) (quotation sarke omitted) - Nonetheless, Falea’a notice of
appeal filed on February 2€, 2003 was timely.
Peruary
confirming
*** NOT FOR PUBLICATION *
ee
thereof. Paiea additionally requests that, *[iJn the event this
(elourt {8 inclined not to reverse the judgment below,* this
court “issue an order clarifying the meaning of the [appraisal
report .)*
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
resolve Paiea’s contentions as follows:
(2) tn arguing that the appraiser exceeded his powers
and was partial toward DFS, Paiea essentially seeks vacation of
the xeport under Hawai'i Revised Statutes (HRS) §§ 658-9(2)
and -9(4) (repealed 2001). However, we note that Paiea neither
moved the circuit court to vacate the report nor provided notice
to DFS of its intent to vacate the report pursuant to HRS
§ 656-11 (repealed 2002). Arbitration of the Bd. of Directors of
Ass'n of ere or, 73 Haw. 210,
213, 830 P.3d 503, 510 (1992) ("Chapter 658 provides that only
the courts may vacate, modify, or correct an award upon the
application of any party pursuant to HRS §§ 656-9 and 58-10, and
that notice of such motion mist be timely served upon the adverse
Party, pursuant to HRS § 658-11"); Gozum v. Am, Int’) Adjustment
2 We note that HRS chapter 658, entitled “Arbitration and Awards,
was repealed in 2001 and replaced with the Uniform Arbitration Act. codified
in BRS chapter SEA. Neverthelese, HRS chapter €5¢ ie applicable to the
instant case because the recodified chapter became effective after the partion
invokes the appraiesl Ses HRS § GSEA"3
(Supp. 2002) ("an agreenent to arbitrate that is nade befere July 1, 2002,
shall be governed by the state law in effect on the date the arb:
*** NOTFOR PUBLICATION ***
Cou, 72 Haw. 41, 44, 805 P.24 445, 446 (1991) (7A motion to
vacate, modify, or correct an arbitration award must be served on
the adverse party within ten days after the award is made and
Paiea wae not
served." (Citing HRS § 658-11)). Therefore
entitled to a vacation of the report. Accordingly, we hold that
the circuit court did not err in confixming the appraisal report
rather than vacating the report.
(2) inasmuch as the appraisal report clearly and
definitely concluded that DFS’ proposed prevailing rental of
$0.90 per square foot per month was more correct, the appraiser
fulfilled his sole duty under the lease and no clarification of
the report was necessary. Thus, we hold that the cireuit court
did not err in confirming the report in thie regard. See Kayland
Lan Ine. eshice, 90 Hawai'i 417, 424, 978 P.2d
855, 862 (1999).
(3) Inasmuch as the appraisal report requires no
clarification, we decline to enter an order clarifying the
report. Therefore,
IT IS HEREBY ORDERED that the February 13, 2003 order
from which thie appeal was taken is affirmed.
DATED: Honolulu, Haw
on the briefs:
MacKinnon LLP), for hots) lee >
defendant -appel lant
+ Bpril 19, 2005.
Resnuns CR arm erey
*** NOT FOR PUBLICATION ***
James A. Stubenberg and
Jon A. Zahaby (of
Stubenberg & Durrett),
for plaintiff-appellee
(withdrew on 10/20/04)
Attorney of Record:
Paul Alton and
David A. Nakashina (of
Alston Hunt Floyd & Ing),
for plaintiff-appellee
(appeared on 10/20/04)
No. 25662 DES Group v, Paiea Properties
Disposition Order
Sunmary
|
a0673b39-5499-47e7-ad76-ac60e0d7607e | State v. Peabody | hawaii | Hawaii Supreme Court | No, 25111
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent /Plaintif£-Appellee
Td 61 AVM SO
GEORGE GARY PEABODY, Petitioner/Defendant-Appelant
——
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NOS. CTR3-6, 8, 9: 5/16/00)
NYING 2 ON FOI ar
(By: Acoba, J., for the court")
‘The Application for Writ of Certiorari filed on May 9
2005 by Petitioner/Defendant-Appellant George Gary Peabody is
hereby denied.
DATED: Honolulu, Hawai'i, May 19, 2005.
son ane coun
oe
George Gary Peabody,
Petitioner /Defendant-
Appellant, pro se, on
the writ.
considered by: Moon, C.J., Levinson, Nakayama, Acoba, and
batty, 39
aaw4a
|
8d7244d2-c605-4af0-a0c3-20a8348fa07c | Masuoka v. G.W. Murphy Construction Co. | hawaii | Hawaii Supreme Court | LAW LIBRARY
'* NOT FOR PUBLICATION ***
No. 26920
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
MICHAEL T. MASUOKA, Claimant-Appellant.
G.W. MURPHY CONSTRUCTION Co., Employer-Appellee
and
ARGONAUT INSURANCE COMPANY, INC., Insurance Carrier-Appelive
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(AB 2002-511 (2-94-15304))
(By: Moon, C.J., Levinson Neeayons" Acoba, and Duffy, JJ.)
Upon review of the second, it appears that (1) the
suprene court clerk's office informed Appellant, by letter dated
February 14, 2005, that the record on appeal cannot be filed
without payment of the filing fee pursuant to Rule 3(f) of the
Mavai't Rules of Appellate Procedure (HIAAP) or an executed motion
to proceed in forma pauperis pursuant to HEAP 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: end (2) appellant faiied to
ay the filing fee or submit a motion to proceed in forma
pauperis; therefore,
IT 18 HEREBY ORDERED that the appeal 1s disaissed.
DATED: Honolulu, Hawai'i, apria 12, 2008.
FERRE nae
Pete Oo Naive ne
Boren 0 uy Br»
|
e709ddd7-9098-4b25-96d0-414ad3d427c1 | Blake v. Resource Consultants Inc. | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION ***
&
‘ONY
MIRANDA BLAKE, Appellant-Appellant
92:1 Wd] 6-AvWsooz
RESOURCE CONSULTANTS INC.; and PAMELA TOGUCHI, Appeals Officer,
Appellees-Appellees
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO, 04-1-1115)
ORDER DISMISSING APPEAL
3g.)
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
Upon review of the record, it appears that judgment has
not been entered on the circuit court’s December 17, 2004
decision affirming the decision of the Employment Security
Appeals Office. Thus, this appeal is premature and we lack
jurisdiction. See HRCP 72(k) and $8; Jenkins v. Cades Schutte
Fleming § Wright, 76 Hawai'i 115, 869 P.2d 1334 (1994).
Therefore,
IT IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, May 9, 2005.
an
Prasete Bored lirt
Pos
Gone aratyith
qa
|
b686bd66-ec33-41ee-a899-af755d15dd08 | Aames Funding Corporation v. Mores | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAT'
~000:
je26 HY 11 AVNSODZ
AAMES FUNDING CORPORATION, a California
corporation, dba Aames Home Loan, Plaintiff-Appellee
PONCIANO MILLORA MORES and PATRICIA ROSETE MORES,
Defendant s-Appellants
and
JOHN DOE 1-10, JANE DOES 1-10, and DOB PARTNERSHIPS,
CORPORATIONS and OTHER ENTITIES 1-20, Defendants
No. 24758
ORDER OF AMENDMENT
(CIV. NO, 1RCO1-5476)
MAY 11, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
The opinion of the court, filed on April 22, 2005, is
amended as follows (deletions are stricken and additions are
double underscored) :
1. Lines 16 from the top of page 10 to line 9 from the
top of page 11: assert the “source,” “nature,” and “extent”
of their title claims 4rensftiderit.
poet the Horesnetdectecatior ere noe en afar
shetiwes Seon tioned bythe Horeses before a person
aaw4
42rtr-t he declaration merely asserts that title was at
issue, and fails
2. Renunber footnote no. 7 to no, 6 and all
subsequent footnotes thereafter.
The Clerk of the Court is directed to incorporate the
foregoing changes in the original opinion and take all necessary
steps to notify the publishing agencies of these changes.
“StenBihoce
Seasctse O.renicovey are
Wiame ¢. tn Ore \
|
4f9027ce-56d8-400b-b61f-39cf10e3e7c7 | State v. Solomon. | hawaii | Hawaii Supreme Court | LAW LIBRARY.
‘#** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
No. 24470
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(Fo-cR. NO. 01-1-1353)
APRIL 29, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
Defendant-appellant James Franklin Solomon, Jr.
(Solomon) appeals from the May 4, 2001 order of the family court
of the first circuit, the Honorable Michael D. Wilson presiding,
convicting Solonen of abuse of a family or household menber, in
violation of Hawai'i Revised statutes (HRS) § 709-906 (Supp.
2001),! and sentencing him to one year probation, subject to the
At the time Solonon committed the offense charged, HRS $ 709-906
provided, in relevant part:
(2) Te shail be uniawtl for any person, singly oF
in concert, to physically abuse a fanily or household member
of to refuse compliance with the lawful order of a police
officer under subsection (4). The police, in investigating
Sny complaint of abuse of & fanily or household mesber, upon
Tequest, may transport the abused perecn toa hospital or
sete snelter.
For the purposes of this section, “fanily or household
nenber” means spouses or reciprocal beneficiaries, former
spouses or reciprocal beneficiaries, persons who have
child in connon, parents, children, persons related by
Consanguinity, and persone jointly residing or formerly
(continued.
*** FOR PUBLICATION
conditions that he (1) pay @ $50.00 criminal injuries
compensation fee, and (2) undergo (a) domestic violence
intervention/anger management, (b) parenting classes, (c) sex
offender evaluation and treatment, if necessary, and (d) mental
health evaluation and treatment, if necessary. On appeal,
Solomon argues that (1) the family court’s acceptance of his
Mss -eontdnued)
Yesiing in the same dwelling unit.
is] "Abuse of family or household member and refusal
to comply with the lawful order of a police officer under
Subsection (4) are misdeneanors and the person shall be
Sentences af follows:
a) For the frat offense the person shalt
inimun jail sentence of forty-eight hours; and
(b) For _a second offense and any other subsequent
Offense that occurs within one year of the
previous offense, the person shall be termed &
Pfepest offender” and serve @ sinimun Jail
sentence of thirty days:
pon conviction and sentencing of the defendant, the court
Shali order that the defendant inmedistely be incarcerated
seve the mandatory minimum sentence imposed; proviced
that the defendant nay be admitted to bail pending appeal
Pursuant to chapter #04, The court may stay the imposition
bf the sentence if special circumstances exist.
(6) Wienever's court sentences @ persoa pursuant to
subsection (5), it also shall require that the offender
Gndergo ony available domestic vsolence intervention
prograns ordered by the court. However, the court may
Buspend any portion of a jail sentence, except for the
mandatory sentences under subsection (5) (a) and (b), upon
the condition that the defendant remain arrest-free and
Elnviction-free or complete court-ordered intervention
(2) For any subsequent offense occurring within two
years after a second misdeneenor conviction, the person
Shall be charged with a class © felony.
In 2002, the legislature amended HRS § 703-806(5) (b) to provide that a person
shall be deened 2 "repeat offender” if they commit a second offense of abuse
of # fansiy oF household rember within one year of the “first conviction.”
See" 2002 Haw. Sess. L. Act 5, § lat S¢. The legislature further amended ERS
$"F09-906(7) "to provide that, for the “third or any subsequent offense” of
abuse of s fenily or household menber ocosrring "within two years of a second
Gr subsequent corviction, the person shall be charged with 2 class C felony.”
See 2002 Haw. Seas, L. Act S, $1 at 54, However, because the subject.
incident occurred on Febroary 22, 2001, the snended version of the statute is
not implicated in the present matter.
FOR PUBLICATION
guilty plea without an affirmative showing that he voluntarily,
intelligently, and knowingly pled guilty constituted an abuse of
discretion amounting to plain error, (2) the family court abused
its discretion when it ordered him to undergo sex offender
evaluation and treatment as a condition of his probation
sentence, and (3) the imposition of sex offender treatment
constituted cruel and unusual punishment, in violation of the
eighth anendnent to the United States Constitution? and article
I, section 12 of the Hawai'i Constitution.’ The State of Hawai'i
(hereinafter, “the prosecution") concedes that the record is
insufficient to affirmatively show that Solomon’s guilty plea was
knowing and voluntary, but argues that the fanily court did not
abuse its discretion by sentencing Solomon to undergo sex
offender evaluation and treatment, and, moreover, that such
sentence did not constitute cruel and unusual punishment.
Inasmuch as the record fails to affirmatively
demonstrate that Solonon’s guilty plea was knowing and voluntary,
we vacate Solomon’ conviction and sentence, and remand to the
family court for a new change of plea hearing. Although this
issue is outcome-dispositive of the instant appeal, we address
Solonon’s remaining points of error in order to provide guidance
to the family court on remand.
2 The eighth amendment to the United States Constitution provides
that “(e]xcessive bail shell not be required, nor excessive fines imposed, nor
Gruel and unusual punishnents inflicted.”
2 article I, section 12 of the Hawai's Constitution provides, in
relevant part, that "{e]xcessive bail shall not be required, nor excessive
fines inpesed, ner cruel and unusual punishment inflicted
3
*** FOR PUBLICATION ***
11. BACKGROUND
on March 5, 2001, Solomon was charged by complaint with
one count of abuse of a family or household member, in violation
of HRS § 709-906, see supra note 1, after he tied up his four-
year-old nephew by the wrists and ankles to a bed or a tree and
hit him with a belt.
on March 27, 2001, Solomon pled guilty to the charged
offense. Prior to accepting Solomon's guilty plea, the family
court conducted the following colloquy to determine whether
Solomon's guilty plea was made knowingly, voluntarily, and
intelligently:
THE COURT: . .. . Mr. Solomon, it’s my
understanding, siz, that’ you've decided to plead guilty to
the chatge of abuse of family household menber this mornings
ie that correct, sir?
isovouon) + “Yes.
THE COURT: All right. Then let me ask you # few
How old are you?
{(Sciowox] +" Forty-three.
THE COURT: And how much education do you ha
(SOLOMON; Up to the tenth grade.
THE COURT; Are you under the infivence of alcohol or
any drugs this morning?
[SoLowoN) : No.
THE COURT: YoU understand the maximum penalty in this
case iz one year in ail and 2 82,000 Fine?
{soLowon}: Yes.
THE COURT: Also you understand you have the right to
go to trial in this case, and by pleading guilty you give up
Sertain rights you'd have if you went to trial?
{(sovawon)? Yee
THE COURT: AlsS you understand that if the {clourt
imposes a sentence you de not agree with, you cannot at that
eine withdraw your guilty plea. You understand that?
[soLowon! : yes.
THE COURT: las anybody threatened or coerced you to
plead guilty in this case?
{sovoMox] : No.
THE COURT: $0 you're doing so of your oun fr
is that correct?
{soLoWON): Ye
THE COURT: Are you satisfied with the advice of your
attorney?
{SoLowon): yes.
THE COURT: All right, 1°11 ask for a statement of
wits
4
FOR PUBLICATION ***
facts from the (prosecstion]
Following a brief factual synopsis from the prosecution, Solomon
again entered a guilty plea. Finding that Solomon “voluntarily
entered his plea of guilty with an understanding of the nature of
the charge against him and the consequences of his plea[,]” the
family court accepted Solomon's guilty plea and adjudged him
guilty.
After adjudging Solomon guilty, the family court
Snmediately commenced sentencing proceedings. During the
proceedings, the prosecution asked the family court to order a
ntence investigation, and requested that Solomon be
pe
sentenced to a three-day jail term, as agreed. Defense counsel
also requested that Solomon receive a three-day jail sentence,
but urged the family court to credit Solomon for time already
served. Defense counsel, however, deferred all other conditions
of Solomon's sentence to the presentence investigation
fter credited Solomon for
recommendation. The family court the:
time served and informed the parties that Solomon would not serve
any additional period of incarceration. The family court,
however, continued sentencing until May 4, 2001 to afford the
probation department sufficient time to prepare a presentence
investigation report to assist the court in determining the
appropriate terms and conditions for Solomon's sentence.
on May 4, 2001, the family court heard arguments to
determine the terms and conditions of Solomon's sentence. The
arguments, however, were made in the absence of a presentence
investigation report because Solomon “was not aware that he was
supposed to initiate the contact with the -- with the [probation
5
'* FOR PUBLICATION ***
officer].” At the hearing, the prosecution requested one year
probation, with the conditions that Solomon undergo “{domestic
violence intervention], parenting [classes], mental health
assessment and treatment, and sex offender evaluation and
treatment but not registration.” In support of its position that
Solomon undergo sex offender evaluation and treatment, the
prosecution explained that
[t]he sex offender evaluation and ers
major stumbling block, Your Honor.
ment sens to be the
[alefense aay argu
that it's unwarranted by the facts of this matter. However,
this was s four-year-old child whe was bound to, depending
on whose account, a bed of a tree and hit with « belt
There's an onnistakable bondage-type elenent here that the
[prosecution] would argue at least needs to be evaluated and
explored.
[e'no treatment is deemed necessary, then that’s fine.
ot the [prosecution] would ask this (clourt to take the
prudent path and at Least have the evaluation done to see if
further treatment is necessary. Not to do so would —~ in
Ligne of what has already happened to one four-year-old boy,
would be very difficult to explein should thie happen again:
The [prosecution] would argue that (Solomon) had an
opportunity’ to go and neve a presentence investigation
Conducted. If the presentence investigation had come back
with sex offender evalustion and treatment not necessary,
Swell the [prosecution's] grounds for asking for such would
Be much weaker. However, (Solomon) neglected to go into
[ine Adult Service Branch) and have the presentence
investigation conducted.
‘AE such, the [prosecutien] would argue that the
[clout should take the prudent path snd perhaps e%
the woret in this matter and order the sex
offender evalu ~~ or the sex offender evaluation and
treatment
“fithout the [presentence investigation], Your Honor,
tthe (prosecution) would really be arguing that the (clourt
should err on the side of caution in this matter as there is
binding and beating element of ~~ a Dondage-type element
fo this exine.
(Some formatting omitted.) Defense counsel, however, argued that
the facts of the case did not warrant the imposition of sex
offender evaluation and treatment as a condition of Solomon’ s
probation and would amount to cruel and unusual punishment:
Considering what's being asked here, the sex offender
FOR PUBLICATION
evaluation and treatment is a very rigorous and demanding
program, Your Honor. Saeed on the mere facts alone that. was
Presenced in thie case, the fects alone do not warrant such
Feondition of probation. And without any other indication
ore, i don’t think that it's appropriate sentencing:
T'would be overly -- the sentence in this case would
be extremely untair and possibly a violation of his [eighth
\dnent fights, Your Honor, because the facts in this
Just the mere fact that it's a four-year-old child ~
s*that was possibly tied at the wrists, Your Honor, that
Goean't indicate a sex offender “~ sexual predator here.
And I realize the [clourt's concern with the
possibility of that. Sut becouse there 4s concern and
Because it's Just a mere possibility, I think the
[presentence investigation} would be critical in this case
iF'the (cloure were to impose such a condition. So we would
be objecting -- strenuously objecting to any kind of sex
offender eval(uation] of t¥eatment in this ci
ut is’ tar as the sex offender eval (uation) and
treataent “= there's aise nothing in his criminal history
that would ingicate that's necessary here. This is the very
Hirst abuse-type case. He has nothing ~~ no other criminal.
Convictions that would indicate that's the path that he's
taking here, Your Honor
After hearing the arguments presented, the family court ordered
Solomon to pay $50.00 to the criminal injury compensation fund
‘and sentenced him to one year probation, subject to the special
conditions that he undergo domestic violation intervention
counseling, parenting classes, sex offender evaluation and
treatment,
treatment,
if necessary, and mental health assessment and
if necessary:
‘The presentence investigation was something that was
‘the responsibility of [Solenon] to follow up on.” I haven't
Feceived any evidence that there was any sort of particular
fettered communication. 1 haven't heard anything fron the
public defender that was involved in this case. There has
Been no evidence that’s been presented to the (clourt, othe:
than the opinion of counsel, this would be an overly
Higorous or costly procedure
‘There were concerns on the part of the {cJourt about
the possibitity of the issues snvelving sex offender perhaps
being involved: And those concerns have not been lessened
by the fact that there's been no presentence investigation,
apparently no coordinstion with the public defender’ s
Gftice. And now, even after this matter was set for
hearing, there hasn't been what 1 would consider to be an
*** FOR PUBLICATION
adequate explanation ss to why the presentence investigation
dig'not take place.
T know that {defense counsel) is an able attorney and
has skile of conmunication that generally T would think
would be adequate to infor Mr. Solomon about his need to
Contact the probation office. But certainly before coming
fo court tedey, the public defender’ s office could have been
able to contact either the probation office or (defense
Geunsel) to find cut nore facts.
‘So based on these circumstances, I am going to order
the sex offender evaluation and treatnent. Hewever, Becau
Br. Solonon has teken responsinilicy for this matter, the
(cjourt would not be imposing any additional period of
Incarceration.” Although the facts =~ were you not to
recognize the fact that you have violated the law and
Fecognize your unlawful conduct, the [cJourt would be
inclined to give you nore incarceration, Mr. Solomon.
Trunderstand you have an attachment £9 your nephew.
It may well be that you're able to be returned to the
relationship with your nephew at sone point. And it may be
that this sex offender evaluation snd ereatment helps you 30
that regard to be able to be reunited with nin.
Tn the event thet for sone reasons it does appear
overly rigorous oF costly, the public defender’s office does
have the option ts file a motion for reconsideration. But
Af that was done, it certainly should be done with some
facts and sone consultation with a probation officer:
50 the [clourt will impose the following sentence of
fone year probation. General. conditions of probation to
apply which would be po possession oF ownership of firearms
Suring that period of time. special conditions of domestic
Violence intervention counselling [sic], and parenting also
to be ordered. A sex offender evaluation and treatment Will
be orderes ss well as mental Health assessment and
A $9600) criminal injury compensation fee should be
paid within 60 days. I'll waive the £75(.00] probation fee
To this ca
on May 23, 2001, Solomon filed a motion for
consideration of his sentence, urging the family court to
eliminate the special condition that he undergo sex offender
evaluation and treatment. In support of his position, Solomon
argued that sex offender treatment was not “reasonably related”
to the charged offense, in violation of HRS § 706-624(2) (1993),
or his criminal history, in violation of HRS § 706-606(2) (1993).
Solonon further argued that the family court's imposition of sex
e
offender evaluation and treatment as a condition of his probation
constituted cruel and unusual punishment, in violation of article
1, section 12 of the Hawai'i Constitution and the eighth
avendent to the United States Constitution, because “it severely
stignatize[d hin)” and vas unduly burdensome.
on June 18, 2002, the fanily court held @ hearing on
solonon’s notion for reconsideration of sentence. At the
beginning of the hearing, the family court expressed its
Inclination to grant Solomon's motion. The prosecution,
thereafter, argued that Solonon’s actions of tying up his nephew
and hitting him with a belt imparted a “distinct bondage-type
Hlavor{.}" the prosecstion farther explained that “the (Ch&Id
protective Services (Cf5)] investigation into this matter did
pote that there had been prior allegations of sexual misconduct
gn the part of (Solonon]." In addition, the prosecution noted
that Solomon was previously convicted for sexual assault in the
fourth degree on October 3, 1991. In light of the evidence, the
prosecution argued that
[alt this point getting the assessment and treatment would
Ghly serve to benefit perhaps himself and no doubt his
fenlty.. The Ces Teport indicates quite strongly the
possibility that, if the mother were to retain custody of
her children, hat [Solomon] in the future would have
Contact with them, quite possibly unsupervised contact with
fhe'chiadren. the [prosecution] finds that, quite frenkly,
a horrific possibitity.
[the prosecution] would also note in terms of the
current allegations and the bondage-type discipline which
Me. Selomen engages in, he has in the past apparently also
engaged in other bondage-type activities including
Rondeufting his daughter to a lawn chair to keep her from
Uiolating curfew, The [prosecution] would urge this (c]ourt
to reconsider if it is thinking of allowing Mr. Solomon to
Giapose of the sex offender treatment.
‘This is net a call for registzation which the
[alefense might argue would carry the stigna oF sone type of
FOR PUBLICATION ***
onerous public ridicule regarding his sexual offender
Status. “This is just an assessment which could lead to
possible treatment. At minimum, if the assessment were to
Gene back negative, would not require sone classes, would
hot require hin to’ go further bot just in terms of safety,
We'd be sure that the complainant and other children in this
Batter would be safe. It seens that the
xual assessment and treatnent, if it's
would be Justified in this case:
(Some formatting omitted.) In response to the prosecution's
azgunent regarding Solomon’s previous conviction of sexual
assault in the fourth degree, defense counsel explained that
Solomon pled guilty to the sexual assault charge, and, unlike the
instant case, “the complaining witness was {) one that Mr.
Solonon was not familiar with. But she was approximately in her
40's. So it was not a young child.”
The family court, thereafter, informed the parties that
At would reconsider that part of Solomon's sentence requiring sex
offender evaluation and treatment “given the lack of facts
(Anaudible) and the additional burden that it places on [Solomon]
which the [clourt was not specifically aware of at the time.”
Based on the family court's decision, the prosecution proposed
that the fanily court order a presentence investigation to
address whether it would be appropriate to sentence Solomon to
sex offender evaluation and treatment in light of the information
provided in CPS reports the prosecution was in receipt of and the
prosecution's concern for the welfare of the minor children
involved:
{he prosecution) would note this (CFS) intake ss
Fourtyearcols niece] by. [eelonon]s On dune 26th, 200,
{Soloten's tour-yesr-old niece] reported co her 25-yest~ole
father, [], during a supervised visit that Uncle Janes
Soloneh had been touching her down there, pointing to her
10
*** FOR PUBLICATION ***
genital area, while he gave her baths. Minor stated, “I
Son’ t Like that.”
hen the active CPS investigator followed up with
[Solomon's four-year-old niece, she) stated that she aid not
Like Uncle Janes bathing her. “I don’t want to go there,”
Feferring to {Solomon's} hone. She cried and appeared
Feally #fightened. (Solomon's) actions appeared to be
Sexually motivated. Complainant assessed the child to be
Eredibia.” Specific in this factor as to (Solomon's fours
year-old niece's) disclosure is unknown
Confirm CPS proof of sexcal abuse is serious
reservations to his ows children when’ [Solomon's eight-year
eld son], and nine-year-old (daughter), by her uncle, due to
Ellegea ansl penetration there were concern of no supporting
Inconsistent statements by (Solomon's
‘And (Solomon) had passed the polygraph
However, the then-investigator, Tan Young, also noted
that he assessed [Solenon's eight-year-old son)’ incredible
and that his inconsistent ststenent may be attribuved to
This} low cognitive functioning. in 1390. (Solenen}
handouffed his own daughter (] to @ lawn chair in order to
Prevent her fron violating curfew.
According to another report, [Solomon] knowingly
atiowed his ows son [] to remain with maternal aunts {], who
Burnt his eyelashes and hair. In conjunction, (Solomon)
failed to protect his own daughter {] who had been sexvally
abused by Imaternal aunt"s husband), who currently Lives
with the family.
After adnonishing the prosecution for failing to supply the CPS
information in response to Solonon’s motion for reconsideration
of sentence, the family court continued the hearing on Solomon's
motion for reconsideration to provide the probation officer an
opportunity to review the CPS materials and prepare a report and
reconmendation as to whether sex offender evaluation was
ry.
On August 6, 2001, Robert R. Tangonan (Tangonan),
nece!
probation supervisor, filed @ letter addressed to Judge Wilson of
the family court and attached (1) @ “psycho-sexual assessment”
report prepared by Joseph Giovannoni (Giovannoni), a certified
clinical specialist in psychiatric and mental health nursing and
a
FOR PUBLICATION
a certified sex therapist, and (2) a polygraph examination report
prepared by Michael Orian (Orian). In the psycho-sexual
assessment report, Giovannoni first noted that Solomon was
convicted of sexual assault in the fourth degree in 1991 and did
not undergo 2 psycho-sexual assessment until May 12, 1993, at
which time Solomon “admitted to exposing his genitalia to an
adult female." Solomon subsequently began a relapse prevention
group but was terminated for noncompliance. After surmarizing
Solomon’s history, Giovannoni posed a serie;
of questions to
Solomon and scored his responses. Based on Solomon's score and
polygraph results, Giovannoni assessed that
Me. S{o]lonon is an untreated sex offender who has not
complied with treatment in the past and who ie likely to
ate excuses in order to avoid treatment at the present
tine. Thad an eppeintment with him on May 24, 2001 and he
canceled it.
Me. So] lemon was deceptive on the polygraph suggesting thet
he continues to engage in sexually sbusive behavior. The
Polygraph suggests that the abuse has escalated to hands on
buge and chav both Nis niece and his nephew are victims of
Ris sexual abuse. Mr. S{o]ionon is super optimistic that he
can circumvent the system as he believes he did in 1993.
The salient events to which he admits to tying up his nephew
soggests sadistic tendencies. Wr. S{o) omen’ s affect
Geaonstrates no remorse. He justifies and excuses his
Setions, He Se at risk of being violent, sadistic, and
ISkely to sexually exploit chitcren. Mis present girlfriend
enables him and does not believe that he hes (e] sexual
problem. Therefore she is likely to overlook any children
Re may be grocning to sexually abuse, ME. S(o)lomon’s
otivation for treatment 1s poor and he poses a risk to
Children, especially those who are in his extended family
Giovannoni thus recommended that Solomon “participate in a sex
offender progran until he completes the objectives of relaps
prevention treatment and he is clinically discharged.”
In the polygraph examination report, Orian first noted
2
*** FOR PUBLICATION ***
that, during his interview with Solomon, Solomon stated that he
was discharged from the army “because he grabbed a high school
Girl while he was in the [a]zmy and stationed in Germany.” Orian
then noted that, during the polygraph examination, Solomon
(2) Since 1993, did
answered “no” to the following question:
you ever expose yourself to anyone in public? (2) Did you ever
touch or put your hand on your niece's vagina?; (3) Since 1993,
did you ever put your hand, mouth or penis on any minor girl's
breast, vagina or buttocks?; and (4) Did you ever do anything
sexual with your nephew? Orian reported that, based on Solomon’ s
responses, Solonen “[was] being completely deceptive.” when
Solomon was informed that he displayed deceptive responses,
Solomon admitted “that since 1993, he has sat in his car and
masturbated while looking at girls at the beach or at a park.”
Solomon, however, explained that “the girls were away from his
car, never saw his penis, and did not see him masturbating[,]”
and that he did not have any sexual activity or contact with any
minor child, including his niece and nephew.
Accordingly, based on Giovannoni’s psycho-sexual
assessment report and the polygraph examination results, Tangonan
informed Judge Wilson that “[Solomon] should be supervised by the
Special Services Section that includes specialized supervision of
sex abuse defendants that requires sex therapy: close monitoring
and supervision, more random drug testing for mood altering drugs
including alcohol and polygraph testing to monitor his compliance
to the treatment plan and the conditions of probation.”
13
*** FOR PUBLICATION ***
on August 6, 2001, the parties returned to family court
for further proceedings on Solonon’s moticn for reconsideration.
Based on Giovannoni’s and Orian’s reports, the family court
denied Solomon’ s motion for reconsideration and maintained its
imposition of sex offender evaluation and treatment as @
condition of Solomon's sentence:
ALL right. Me. Solonon, az you can see, the (clourt
has -- "we've invested a Lot of time in taking’s lock at your
case, And I an sensitive to the fact that the sex offender
Ereatnent would be something that would involve a lot of
effort on your part.
‘on the other hand, this Ss a case in which the:
no period of incarcerstion imposed, and it's a =~ it
Sentence that takes into consideration that there were
Certain facts about this case that also involved the tying
bop a juvenile that made the (clourt consider the concept of
Bex offender treatment.
‘The further evaluation that has been done in this case
by Dr, Glovannoni has confirmed that the condition that was
ofiginally imposed a part of your sentence, that is, sex
offender evaluation and treatment, would be appropriate.
T'can only recomend to you that you keep in mind thet
this is s misdenesnor case for which you would be sentences
fe a condition of your probation to undergo this treatment,
and then it’s finished.” When your probation is finishes,
then that will be the end of your treatment.
This is not something that is a Lifetime matter, You
are not being told to register at a sex offender, This is a
Risdeneancr case, the conditions of which for your
Sentencing include the sex offender trestment
Vionever, that is an important difference, between
being convicted of a sexual offense and having to register
as a sex offender for the state. So 1 don't want you to
misunderstand the situation.
‘Risoy the treatment that is to be provided to you to
the extent that this 1s senething that hopefully will help
you with your -- the way you approach the treatment, this
Treatment is being done for your own good. This Ante
treatment that's Being done to, you know, ‘ponish (James)
Franklin Solonon. It's also being done of course to protect
other people that you'll come into contact with, but it is
Smportant for you to remember that it is something that’s
neant for your Benefit.
If you complete it successfully, it’s behind your and
that’s ity So it's very isportant =~ the reason I'm saying
this, st's very important for you to have the right attitude
for you to be able £0 benefit fron this. So just try to
keep that in mind.
4
*** FOR PUBLICATION *
ALL right. So the motion for reconsideration is
denied in this case. Ido see that there's an adequate
exus in the facts and also, given the report of the expert,
fn adequate nexus for the imposition of the sex offender
treatment a2 s conaition of sentencing.
Solomon thereafter appealed.‘
IX, STANDARD OF REVIEW
A. Plain Error
“We may recognize plain error when the error committed
affects substantial rights of the defendant.” State v. cullen,
86 Hawai'i 1, 8, 946 P.2d 955, 962 (1997) (citations and internal
quotation marks omitted) .
B. Confession of Error
When the prosecution concedes error,
* onder Hawai'i Roles of Appellate Procedure (HRAP) Rule ¢(b) (1), 2
notice of appeal must be filed “within 30 days after the entry of the judgment
Of order appesied from.” In the instent case, Solenon filed his notice of
‘Sppeal on August 13, 2001 -- seven days after the family court denied his
Rotion for reconsideration of sentence. Disposition of a motion for
feconsideration of sentence, however, “does not qualify under HRAP Rule 4(b)
ie a tolling notion chat extends the {ling deadline for a notice of appeal.”
States. Magne, 92 Havei't 289, 300, 990 P.2d 2171, 1162 (App. 1999).
Notwithstanding, trial court has authority to extend the time for filing
hotice of appeal for a period not to exceed 30 days fron the expiration of the
tine otherwise prescribed by this subdivision (b)-” HRAP Rule 4(b) (3)
However, because the family court granted Solomon # seventy-day extension
Within which to file his notice of appesl, Solomon's notice of appeal was
uintimeay.
Nevertheless, this court has recognized that a criminal defendant
As entitled, on his first appeal, to effective counsel who
ay not deprive him of his appeal by failure to comply with
Procedural rules, -; - such es (MRAP) Rule 4(b), wnich
Fequires that the notice of appeal oe filed within chirty:
ye after the entry of the judgment or order appealed from,
States Aplaca, 96 Hawai'i 17, 23, 25 P.36 792, 798 (2001) (citations and
internel quotation marks omitted). Thezefore, because Solomon is asserting
his first eppeal, and hie failure to file @ tinely notice ef appeal seens to
be the result of’ his attorney's failure to comply with MRAP (Role) 4(b),
Scloncn should not be deprived of his appeal.
15
** FOR PUBLICATION ***
—_____*** FOR PUBLICATION ***
At {s incumbent on the appellate court first to ascertain
that the confession of error is supported by the record and
Weli-foundes in low and second to determine chat such error
is properly preserved and prejudicial. In other words,
confession of error by the prosecution is not binding upon
Gn appellate coure, nor may a conviction be reversed on the
Strengen of the prosecutor's official action alone,
State v, Hoang, 93 Hawai'i 333, 336, 3 P.3d 499, 502 (2000)
(citations, internal quotation marks, ellipsis points, and
brackets omitted).
Cc. Acceptance of a Guilty Plea
A trial Judge is constitutionally required to ensure
thet a guilty ples 4s voluntarily and knowingly entered,
Although no specific dislogue is required, the court should
hnake “an affirmative showing by an on-the-record colloquy
Between the court and the defendant wherein the defendant ‘3
Shown co have 2 f0ll understanging of what the plea of
Guilty connotes and ite consequences.”
State v. Willians, 68 Haw. 498, 499, 720 P.2d 1020, 1012 (1986)
(citations and emphasis omitted).
D. Sentencing
a) sentencing judge generally has broad
discretion in inposing a sentence. State v. Gaylord,
Se aawai't 127, 143-44, 090 P24 1167, 1163-84 (1999);
Beate ts Valera, 14 Haw. 424, 435, 648 P.2d 376, 281
1953]. the applicable standard of review for
fontencing or resentencing matters is whether the
court committed plain and manifest fof discretion
{nits cecision. Gaylord, "76 #
at 1164; State 2 Kumukau, 72 Haw, 228, .
2.20 682, 687-86 {1990}; State v. Murray(,] 63’ How.
12, 25, 621 P.24 334, 342-43 (1900); State vy Fry, 61
Haw. 226, 231, 602 P.2d 13, 16 (1979)
Keaue 2. State’ 79 Hawai" 261, 204, 90: P.2d 481, 484
(S338) "TFleccors which indicate ‘a plain and manifest
abuse of discretion are arbitrary or capricious action by
the Judge ond a rigid refusal to consider the defendant’ s
Contentions,” “Etye 61 Saw. at 231, 602 P.2 at 17. And,
SSigienereiiy, tovconseitute an ablse it must appear that
the court clesrly exceeded the bounds of reason or
Giscegardes roles oF principles of law or practice to. the
Substantial detrinent’ of s party Litigant.’" Keawe, 79
Rowaii at 266, 902 P.2a ot 486 (quoting Gaviorg, 76 Hawai'i
ae 144, 090 P24 at 1184 (quoting Mumukau, 71 Haw, at 227
16
+#* FOR PUBLICATION
28, 187 P.24 at 688))
State v. Kaua, 102 Hawai'i 1, 7, 72 P.3d 473, 479 (2003) (quoting
State v. Rauch, 94 Hawai'l 315, 322, 13 P.3d 324, 331 (2000)
(brackets and ellipsis points in the original).
E. | Questions of Constitutional Law
“We answer questions of constitutional law by
exercising our own independent judgment based on the facts of the
case, and, thus, questions of constitutional law are reviewed on
appeal under the right/wrong standard.” State v, Peseti, 101
Hawai'i 172, 178, 65 P.3d 119, 125 (2003) (citing Aplaca, 96
Hawai'i at 22, 25 P.3d at 797) (internal quotation marks and
citation omitted).
XII, DrscussroN
A. The family court’s failure to establish on the record that
Solomon's guilty plea was knowing and voluntary constituted
an abuse of discretion amounting to plain error.
on appeal, Solomon argues that the family court's
acceptance of his guilty plea without an affirmative showing that
he voluntarily, intelligently, and knowingly pled guilty
constituted an abuse of discretion amounting to plain error.
Solomon specifically contends that the family court failed to:
(1) advise him that “by pleading guilty, he was specifically
waiving his right against self-incrimination and his right to
confront his accusers[;]" (2) advise him that he had a right toa
trial by jury; (3) inguire whether his “willingness to plead
guilty was 2 result from a plea agreement as required by [Hawai'i
Rules of Penal Procedure (HRPP)] Rule 11(d)(7]" and (4) inform
uv
*** FOR PUBLICATION ***
him that it was not bound by the plea agreement. Solomon thus
maintains that the family court’s failure to ascertain that he
understood the specific consequences of his guilty plea was plain
error. The prosecution concedes that the record is insufficient
to show that Solomon's guilty pl
vas knowing and voluntary,
and, therefore, requests that this court vacate Solomon's
conviction and remand for a new change of plea hearing or for
resentencing by another court. Inasmuch as the record fails to
affimatively demonstrate that Solomon knowingly, voluntarily,
and intelligently pled guilty, the family court’s acceptance of
Solonon’s guilty plea was plain error.
This court has acknowledged that, “even when the
prosecutor concedes error, . . . it is incumbent on the appellate
court first to ascertain . . . that the confession of error is
supported by the record and well-founded in law and second to
determine that such error is properly preserved and prejudicial.”
Hoang, 93 Hawai'i at 336, 3 P.3d at 502 (internal brackets,
quotation marks, and citations omitted) (some ellipsis points in
the original and some added). “In other words, a confession of
exror by the prosecution is not binding upon an appellate court,
nor may @ conviction be reversed on the strength of the
prosecutor's official action alone.” Id, (internal quotation
marks, brackets, and citation omitted).
Tt is well-recognized that a guilty plea “in itself is
a conviction and a simultaneous vaiver of several important
constitutional guarantees(,]” namely, the privilege against
18
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compulsory self-incrimination, the right to a trial by jury, and
the right to confront one’s accusers, and, thus, the waiver of
these guarantees “is not constitutionally acceptable unless made
voluntarily and with full understanding of the consequences.”
Wing v. Anong, 52 Haw. 420, 425, 477 P.2d 630, 634 (1970).
Generally, therefore, “[a] trial judge is constitutionally
required to ensure that a guilty plea is voluntarily and
knowingly entered.” Milliams, 68 Haw. at 499, 720 P.2d at 1012
(citations and emphasis omitted). In determining the
voluntariness of a defendant's proffered guilty plea, the trial
court “should make an affirmative showing by an on-the-record
colloquy between the court and the defendant wherein the
defendant is shown to have a full understanding of what the plea
of guilty connotes and its consequences.” State v. Vaitoai, 59
Haw. $92, 602, 585 P.24 1259, 1265 (1978). Tt 1s plain error for
the trial judge to accept a defendant’s guilty plea without an
affirmative showing that it was intelligent and voluntary. Id.
at 601-02, $85 P.2d at 1264-65.
Additionally, when a trial court accepts a guilty plea,
FRPP Rule 11 requires the court to first address the defendant
personally in open court and then determine that the plea is
voluntar;
(c) Advice to defendant. the court shail not accept
a plea of guilty or nolo contendere without first addressing
the defendant personally in open court and determining that
he uncerstands' the follows
(2) the nature of the charge to which the plea
Ae offered; and
(2) the maximum penalty provided by law, and the
smaxinum sentence of extended tern of imprisonment,
Shich may be imposed for the offense to which the plea
19
+** FOR PUBLICATION ***
Ae offered; and
(3) that he has the right to plead not guilty,
or to persist in thet plea if it has already been
nade? and
(2) that if he pleads guilty or nolo contendere
here will not be a further trial of any king, so thet
by pleading guilty of nolo contendere he waives the
Fight to atrial: and
(5) that if he Le not a citizen of the United
7a conviction of the offense for which he has
seat
Been charged may have the consequences of deportation,
exclusion fron admission to the United States, oF
Genial of naturalization pursuant to the laws of the
United Staves
{d) Zasuring that the ples is voluatary. The court
‘of guilty or nolo contendere without
snail not accept & pl
Eitet Sacessing
determining that the pl
force of threats or of promises apert fron a Piet
The court shall also inguire #3 te whether the a
wilingness to plead guilty of nolo contendere F
Gay ples sgreenent.
HRPP Rule 11(c), (4). Moreover, if a defendant enters a guilty
plea pursuant to a plea agreement, it is incumbent upon the trial
court to inform the defendant that it is not bound by the plea
agreement. HRPP Rule 11(e) (3) ("Upon disclosure of any plea
agreenent, the court shall not accept the tendered plea unless
the defendant is informed that the court is not bound by such
agreement, unless the court agreed otherwise.”).
In the instant case, the family court accepted
Solonon’s guilty plea without an affirmative showing that Solonon
had a full and complete understanding of what his guilty ple
connoted and its consequences. Although the family court
conducted an on-th
record colloquy with Solomon prior to
accepting hie plea and advised him that “you have the right to go
to trial in this case, and by pl
ding guilty you give up certain
xights you’d have if you went to trial[,]” (emphasis added), the
20
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family court did not explain the specific rights Solomon would
“give up” by pleading guilty. Specifically, the family court did
not ascertain whether Solomon understood that by pleading guilty,
he was waiving his privilege against self-incrimination, the
right toa trial by Jury, and the right to confront his accuser.
In addition, the family court failed to (1) inquire whether
Solomon's willingness to plead guilty was the result of a plea
agreement, gage HRPP Rule 11(d), and (2) inform Solomon that it
was not bound by the plea agreement, sce HRPP Rule 11(e) (3).
‘thus, Solomon's guilty plea was not made knowingly,
intelligently, and voluntarily.
Inasmuch as the record affirmatively demonstrates that
Solomon did not have a full and complete understanding of what
his guilty plea connoted and its consequences, the family court's
acceptance of Solomon's guilty plea constituted an abuse of
discretion anounting to plain error. Accordingly, we vacate
Solonen’s conviction and remand the case to the family court for
a new change of plea hearing.
B. The family court did not abuse its discretion in sentencing
Solomon to undergo sex offender evaluation and treatment, if
jecessary, as a condition of his probation.
Solomon further argues that the family court abused its
discretion in sentencing him to sex offender evaluation and
treatment as a condition of his probation. Solomon specifically
contends that the family court’s sentence ordering him to undergo
sex offender evaluation and treatment was illegal because he did
not commit a sexual offense and it was not reasonably related to
2
FOR PUBLICATION.
his character and history. In addition, Solomon alleges that the
family court deprived him of liberty because no evidence was
presented suggesting the need for sex offender evaluation and
treatment. We disagree.
“the legislature prescribes penalties for criminal
offenses and its inclination has been to vest in the courts ‘wide
latitude in the selection of penalties from those prescribed and
in the determination of their severity.’” Kumukay, 71 Haw. at
224, 787 P.2d at 686 (quoting State v. Johnson, 68 Haw. 292, 296,
711 P.2d 1295, 1298 (1985)), “In determining the particular
sentence to be imposed, the court must consider a variety of
factors in exercising its discretion in fitting the punishment to
the crime ‘as well as the needs of the individual defendant and
the community.’” Id, at 225, 787 P.2d at 686-87 (quoting State
waTeves, 4 Haw. App. $66, 576, 670 P.2d 834, 838 (1963).
“abuse of a family or household member (is a]
misdemeanor.” HRS § 709-906(5). Under HRS § 709-906(5) (a), @
person convicted for the first time of abuse of a family or
household menber “shall serve a minimum jail sentence of forty-
eight hours[.]” Moreover, pursuant to sentencing guidelines, 2
sentencing court may sentence a defendant convicted of abuse of a
family or household member “to imprisonment for a definite term
to be fixed by the court and not to exceed one year in the case
of a misdemeanor[.]” HRS § 706-663. Notwithstanding, within the
range of discretion that the Hawai'i Penal Code affords courts in
imposing sentences, a sentencing court may also sentence a
22
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defendant convicted of abuse of @ family or household member to
probation, rather than imprisonment.* HRS § 706-620 (Supp.
2004). Once a probation sentence is imposed, a defendant must
comply with the mandatory and discretionary conditions set by the
sentencing court. HRS § 706-624 (1993).
A sentencing court’s authority to impose conditions on
a term of probation is statutorily prescribed under HRS § 706-
624. Notwithstanding the mandatory conditions of probation, a
+ in determining whether to ‘spose a term of probstion, the
sentencing court Ls guided by the following factors
(1) The factors set forth in section 706-606 to the extent
that they are applicable;
(2) The following factors, Co be accorded weight in favor
Of withholding @ sentence of imprisonnent
ia)" the defendant's criminal conduct neither caused
Ror threstened serious. ha:
(>) The defendant acted under a strong provocation;
{ec} There were substantial grounds tending to excuse
or justify the defendant's criminal conduct,
Ehough failing to establish a defense;
(a) The victim of the defendant’s criminal conduct
Induces or facilitated its commiseion;
le) The defendant has no history of prior
delinquency or criminal activity or has led =
Iseabiaing life for a substantial period of
Eine before the consission of the present crime:
(£) The defendant's criminal conduct was the result
of circumstances unlikely to recur
[g) The character snd attitudes of the defendant
Indicate thet the defendant is unlikely to
commit another crime:
(h) The defendant is particularly Likely to respond
aeisematively to a program of restitution or a
probationary program or both;
(4) Phe imprisonment of the defendant would entail
Guceesive herdenip to the defensant or the
Sefendent's dependente; and
(3) The expedited sentencing program set forth
in section 706-606.3, if the defendant has
Quelified for that sentencing progran.
RS § 706-621 (1993).
23
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sentencing court may, in its discretion, impose additional
conditions that are reasonable:
‘te court may provide, as further conditions of «
sentence of probation,
‘fie eng tothe extent that the consitions involve only
Gaprivations of Liberty of property as are reasonably
fora eats gen
That the defendant
(a). Seve a term of inpriscnment . . . not exceeding six
onthe in nisdeneenor cases; |
iki " Ondergo available medical, psychiatric, or
peychelogical treatment, including treatment for
Brug er alcohol dependency, and reaain in a
Specified institution if required for that.
purposes
inj’ Satisfy otner re
may Impose(-]
jonable conditions as the court
HRS § 706-624(2) (emphasis added). A sentencing court,
therefore, must consider the following factors when imposing
additional probationary conditions:
(2) The nature and circumstance
Rstory and characteristics of the defensant?
(2) The need for the sentence imposed:
ia) “te reflect the seriousness of the offense, to
Promote respect for lew, and to provide Just
Bunishsent for the offense:
to) Fo afford adequate deterrence to criminal
Gonduee?
(c) Fe protect the public from further crines of the
defendant; and
(a) To provide the defendant with needed educational
Gr vocational training, medical care, or other
Correctional treatnent’ in the most effective
(2) the kings of
(0 the need to
fanong defendants with
found guilty of similar conduct.
HRS § 706-606 (1993) .
In the instant case, Solomon was convicted of abuse of
a family or household menber after he pled guilty to tying up his
24
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four-year-old nephew by the wrists and ankles, and hitting him
with a belt. The family court therefore had discretion to
sentence Solomon to probation, subject to mandatory and
discretionary conditions. The family court subsequently
sentenced Solomon to one year probation subject to the condition
that he, inter alia, undergo sex offender evaluation and
treatment. In imposing sex offender evaluation and treatment as
a condition of Solomon’s probation, the scope of the family
court’s inquiry must ensure that this condition was “reasonably
related to the factors set forth in [HRS §] 706-606 and to the
extent that [it] involve[d] only deprivations of Liberty or
property as are reasonably necessary for the purposes indicated
in (HRS §] 706-606(2)(.]" HRS § 706-624(2). Although the record
demonstrates that the family court initially lacked information
regarding Solomon's need for sex offender treatment at the time
of nis sentencing because of the absence of a presentence report,
the family court nevertheless had sufficient information after
considering Solomon's motion for reconsideration of his
sentence.‘ Specifically, the family court learned that: (1)
«this court recently held that the imposition of @ consecutive
sentence based on alleged but uncharged misconduct constituted plain error in
State ws Welling, 106 Hawai'i 441, 449-90, 106 P.3¢ 364, 372-79 (2005). In
Gelling, the circuit court sentenced Vellina to consecutive terms of
TEprischnent based on the prosecution's allegation that he “sold” a set
automatic firearm he stole during a burglary to a érug dealer in exchange for
aruge:
At Vellina’s sentencing hearing, the deputy
prosecuting ateorney (OPA) argued for’ the imposition of
Ecnsecutive sentences based upon the DPA's claim that
Vellina bed “sold those fireares toa drug dealer for
continued...)
25
¥** FOR PUBLICATION ***
-continved)
drugs.” The DPA offered no proof to substantiate his
Gllegation that Vellins hed Sold the semi-automatic rifle
That he stole to a “drug dealer.” the circuit court
Likewise eid not question the BPA regarding the Basis for
hie belief that Vellina had sold the firearm to a drug
dealer.
in sentencing Vellina, the circuit court stated, "Now,
when Z hear that. . some drug dealer now has... an
Lilegar semi-automatic weapon that you stole snd’ transferred
to him, T'mean, that’s pretty damaging to the community.”
The eirouse court proceeded to sentence Vellins, “taking
into consideration. ..., particularly, the need to make an
enample of this kind of behavior to the community and to
Promote comunity safety,” to consecutive terms of
Teprisonment cotsiing ewonty years
Ada at 449-50, 106 P.36 at 372-73. Vellina subsequently appealed his
Sentence, arguing that the imposition of consecutive terms of imprisonment
Dased upon uncharged misconduct alleged by the prosecution at sentencing was
plain error. ddy at 643, 106 P.3d at 372, This court agreed, Reaffirming
the mandate set forth in State, lunes, 72 Haw. $21, 824 P.2d 837 (1982) ,
that "a judge cannot punish a efendant for an uncharged crime in the belief
thet st too deserves punishment (,]” ig. at 526, 624 P.2d at 640, this court
held that the circuit court "clearly exceeded the bounds of reason in
Sentencing Vellina{]" because the record failed to provide any evidence that
Vellina actually transferred a seni-automatic firearm to a drug dealer in
‘exchange for drugs as relied upon by the circuit court in sentencing Vellina
out die
(t]he cireust court unquestionably determined that Vellina
had “transferred” the semi-autonatic firearm to a drug
Gesler and sentenced him with that in sind. Siniler to
Nunes, the circuit court imposed punishment for uncharged
Efines =~ possibly either transfer and possession of
firearms, porsuant to BRS § 134-4 (1993), oF the prohibited
transfer of firearms, pursuant to HAS § 134-0 (1993). Ld.
at 526, 624 P.24 a 040. Me see nothing in the record £2
Support the circuit court's conclusion that Vellins
Eraneferred a semi-automatic firearm toa drug dealer
Indeed, a presentence investigation report was not even
prepared for the present matter.
Yelling, 106 Hawas's at 450, 106 P.3d at 373. As such, this court held that
‘the circuit court plainly erred in sentencing Velline to consecutive terms of
imprisonment based on the unsubstantiated allegation that he had transferred
the senivautonatic firearm to a drug dealer.” [ds
in distinct contrast to Usllina, the record in the instant case aptly
supported the fanily court's sentence. Specifically, the record included &
“psyeho-serual assessment report,” polygraph examination report, and
testimony confirming Soloncn's sexually abusive behavior and the likelihood of
(continued. .-)
26
FOR PUBLICATION
Solomon had a prior conviction of sexual assault in the fourth
degree; (2) a CPS report noted that (a) Solomon previously
engaged in “handouffing his daughter to a lawn chair to keep her
from violating curfew{,)” and (b) Solomon's four-year-old niece
reported that he inappropriately touched her genital area while
giving her a bath; (3), Solomon admitted during his polygraph
examination that (a) he was discharged from the army “because he
grabbed a high school girl while he was in the [alrmy and
stationed in Germany(,]”" and (b) “since 1993, he has sat in his
car and masturbated while looking at girls at the beach or at @
park[:]” and (4) a “psycho-sexual assessment” concluded that (a)
Solomon “is an untreated sex offender who has not complied with
treatment in the past and who is likely to make excuses in order
to avoid treatment at the present time[,]” (b) Solomon “was
deceptive on the polygraph suggesting that he continues to engage
alated to
javior [and] the abuse has
in sexually abusive be!
hands on abuse and that both his niece and his nephew are victims
of his sexual abuse[,]” and (c) Solomon “is at risk of being
violent, sadistic, and likely to sexually exploit children[.]”
Based on Solomon's history, the circumstances of this case, and
the seriousness of the offense, we cannot say that the family
court exceeded the bounds of reason or disregarded rules or
principles of law to the substantial detriment of Solomon when it
continued)
Solomon sexually exploiting young children. Accordingly, unlike
the family court sentenced Sclonen to undergo sex offender evaluation and
treatment es 8 condition of his probation, substantial evidence existed in the
record £0 support Solomon's history of sexual misconduct.
2
FOR PUBLICATION ***
sentenced him to undergo sex offender evaluation and treatment as
a condition of his probation. Accordingly, the family court did
not abuse its discretion in sentencing Solomon as it did.
C. The family court’s imposition of sex offender evaluation and
treatment as a condition of Solomon’s sentence did not
constitute cruel and unusual punishment.
As a final note, Solomon argues that the family court’s
Amposition of sex offender evaluation and treatment as a
condition of his sentence constituted cruel and unusual
punishment, in violation of the eighth amendment to the United
States Constitution, see supra note 2, and article I, section 12
of the Hawai'i Constitution, see supra note 3. Solomon
specifically maintains that the imposition of sex offender
evaluation and treatment was manifestly cruel and unusual,
inasmuch as (1) he was not convicted of a sex offense, (2) he was
not 2 danger to the public, (3) he would be severely stigmatized,
and (4) it deviated from sentences imposed upon other individuals
convicted of abuse of a family or household member. We disagree.
‘This court addresses arguments of cruel and unusual
punishment pursuant to the following standard:
“mhe standard by which punishment is to be judged
tonder the ‘eruel and unusual’ punishment provisions of both
the United States and Hawaii Constitutions is whether{.] in
the Light of developing concepts of decency and faire
the prescribed punishment ie £0 disproportionate to th
Conduct proseribed and 1 of such duration as to shock the
conscience of reasonable persons or to outrage the moral
Sense of the community.”
State v. Jenkins, 93 Hawai'i 87, 114, 997 P.2d 13, 40 (2000)
(quoting Kumukau, 71 Haw. at 226-27, 787 P.2d at 687 (quoting
28
FOR PUBLICATION *
FOR PUBLICATION 758
State v. Freitas, 61 Haw. 262, 267-68, 602 P.2d 914, 920
(1979))). “*the question of what constitutes an adequate penalty
necessary for the prevention of crime is addressed to the sound
judgment of the legislature and the courts will not interfere
with its exercise, unless the punishnent prescribed appears
clearly and manifestly to be cruel and unusual.’" Id. at 114,
997 P.2d at 40 (quoting Freitag, 62 Haw. at 267, 602 P.2d at
920). In determining whether a punishment is “clearly and
manifestly” cruel and unusual, this court, in Freitas, borrowed a
three-pronged test set forth in In ze Lunch, @ Cal. 34 410, 105
cal. Rptr. 217, 503 P.2d 921 (1972), superseded by statute on
other grounds by Cal. Penal Code $§ 1170 et seg., which directs
this court to consider
(2) the nature of the offense and/or the offender, with
Sareleniar regard to the degree of danger posed by both to
Societys (2) the extent of the challenged penalty as
Zcopared te the punishments prescrised for more serious
Eeimes within the same Jurisdiction; and (3) the extent of
fhe challenged penalty as compared to the punishment
Prescribed for che sane offense in other jurisdictions.
Jenkins, 93 Hawai'i at 114, 997 P.2d at 40 (quoting Freitas, 61
Hew, at 268, 602 P.2d at 920). “In using this test, the nature
of the offense and the danger the offender poses to society are
the key factors in this determination.” Jd, (internal quotation
marks and citation omitted).
In the instant case, with regard to the first prong of
the Exeitas/Lynch test, the nature of Solomon's offi
the imposition of strict penalty, especially because the victim
warranted
was a child. ‘The legislature's purpose in enacting a family
29
FOR PUBLICATION ***
abuse statute reflects Hawai'i’s concern for the increasing
frequency of family abuse and its impact upon children and the
community:
Your Comittee is concerned with effectively
addressing and conbatting [sic] family violence. The
Tanifications of family violence spread far beyond the
confines of the family. Children who are the victins of, or
1s £0, violence learn to view it as accepted and
ermal Denavicr.’ They may perpetuate the violence as
faaatee.
«Your Committ: 2 that extending the
protection of this criminal statute to family and housenolé
ist in mitigating family violence and ite
Sen. Conf. Comm. Rep. No. 6, in 1985 Senate Journal, at 848. See
also State v. Friedman, 93 Hawai'i 63, 72, 966 P.2d 268, 277
(2000). As such, in order to prevent and deter the risk of harm
to family members and the community, a person who abuses a family
or household menber could be imprisoned for as long as a year.
correlatively, on the record before the family court, Solomon's
actions of binding his four-year-old nephew by his wrists and
ankles and hitting him with s belt could also warrant a one-year
term of probation subject to the condition that he undergo sex
offender evaluation and treatment, if necessary.
With regard to the second prong of the Freitas/Lynch
test, a person convicted of the more serious offense of
endangering the welfare of a minor in the first degree may be
sentenced to an extended indeterminate term of ten years’
imprisonment and ordered to pay @ $10,000 fine, or five years’
probation. See HRS § 709-903.5(3) (1993) ("Endangering the
welfare of a minor in the first degree is 2 class C felony.”).
Moreover, a person convicted of endangering the welfare of a
30
+++ FOR PUBLICATION ***
minor child in the second degree may be sentenced to up to one
year in jail and ordered to pay @ $2,000 fine, or one year
probation. See HRS § 709-904(3) (1983) ("Endangering the welfare
of @ minor is a misdemeanor.”). Compared with the possibility of
a ten-year jail term and a $10,000 fine, or five years’
probation, Solomon’s sentence of one-year probation subject to
the condition that he undergo sex offender evaluation and
treatment, if necessary, does not appear to be disproportionately
onerous.
Finally, with regard to the third prong of the
Ereitas/Lynch test, a perusal of cases from other jurisdictions
reveals that some states impose similar sentences upon persons
convicted of physically abusing a family or household member.
See, Q.a., Mont. Code Ann. § 45-5-206(3) (a) (4), (444) (2003)
(providing that a person convicted of assaulting a partner or
family member shall be sentenced to not more than one-year
imprisonment or be ordered into misdemeanor probation for the
first or second conviction); N.H. Rev. Stat. Ann. § 639:3(V)
(2003) (providing that endangering the welfare of a child is a
misdemeanor). The statutory schemes from other states, however,
ae
mandate harsher sentences. See, e.g., N.J. Stat. Ann. § 2C:
4(a) (West 2001) (providing that a person convicted of harming a
child under the age of sixteen shall be sentenced to a seven-year
term of imprisonment); Nev. Rev. Stat. § 200.508(1) (b) (1) (2003)
(mandating that a first-time offender convicted of physically or
mentally abusing a child, which does not result in substantial
3
** FOR PUBLICATION ***
bodily or mental harm, “shall be punished by imprisonment in the
state prison for a minimum term of not less than 1 year and @
maximum term of not more than 6 years”). By comparison,
therefore, the extent of the family court’s imposition of a one
year term of probation, subject to the condition that Solomon
undergo sex offender evaluation and treatment, is far less
severe.
‘The family court had ample grounds on which to punish
Solomon as it did, Inasmuch as the imposition of a one-year term
of probation, subject to the condition that Solomon undergo sex
offender evaluation and treatment, for tying up his four-year-old
nephew by the wrists and ankles and hitting him with a belt (1)
fell within the range of punishment prescribed by the applicable
statutory provisions, (2) does not “shock the conscience” of
reasonable persons, and (3) does not outrage the moral sense of
the conmunity, it was not cruel and unusual punishment for the
family court to impose the sentence that it did. Accordingly,
Solomon's sentence did not violate the eighth amendment to the
united States Constitution or article I, section 12 of the
Hawai'i Constitution.
32
FOR PUBLICATION ***
IV. concLUsrox
Based on the foregoing, we vacate the family court’s
May 4, 2001 order and remand the case to the family court for a
new change of plea hearing.
James S. Tabe,
Deputy Public’ Defender,
for defendant-appellant
Daniel H. Shimizu, eR Gena
Deputy Prosecuting Attorney,
for plaintiff-appellee recess Cu
pa
Von Batly
|
59a88b4d-450b-4a42-8887-69cc44efdacc | Lingle v. Hawai'i Government Employees Association. Concurring Opinion by J. Acoba [pdf]. | hawaii | Hawaii Supreme Court | aw LiaRARY
*** FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000
LINDA LINGLE,’ Governor, State of Hawai'i,
Pet itioner/Appellant-Appellee,
HAWAI' GOVERNMENT EMPLOYEES ASSOCIATION, APSCME,
Local 152, AFL-CIO; MUFI HANNENAN, Mayor,
City and County of Honolulu; HARRY KIM, Mayor,
County of Hawai'i; BRYAN J. BAPTISTE, Mayor,
County of Kauai; and ALAN M. ARAKAWA, Mayor,
county of Maui, Intervenors/Appellants-Appellees,
UNITED PUBLIC WORKERS, AFSCME, Local 646,
AFL-CIO, Intervenor/Appellee-Appellant,
HAWAI'T LABOR RELATIONS BOARD, Appellee-Appellee.
oo
Wo. 24237
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO, 00-1-2134-07 SSM)
aaa
MARCH 31, 2005
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY,
35.
AACOBA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY MOON, C.J.
Intervenor-appellee-appellant United Public Workers,
AFSCME Local 646, AFI
-CzO (hereinafter, UPH] appeals from the
Pursuant to Hawai'i Rules of Appellate Procedure Rule 43(c) (2008),
Governor Linda Lingle and Mayors Mufi Hanneman, Harey Kim, Bryan Saptiete,
Rian Arakawa were substituted
instant appeal.
and
parties tot
*** FOR PUBLICATION ***
first circuit court's? April 25, 2001 final judgment
(2) remanding this case to appellee Hawai'i Labor Relations Board
(HRB) for further proceedings regarding its order denying
petitioner-appellant-appellee the State of Hawai'i Department of
Transportation's (DOT) petition for a declaratory ruling and
(2) denying UPW’s motion to dismias intervenor-appellant -appellee
Hawai'i Government Employees Aesociation, AFSCME, Local 152, APL“
cr0"s (hereinafter, HGEA] July 7, 2000 notice of appeal to the
cixcuit court. On appeal to this court, UPd challenges the
circuit court's: (1) determination that it had jurisdiction to
review the HLRB‘s refusal to issue a declaratory ruling pursuant
to Hawai'i Revised Statutes (HRS) § 92-14 (1993); (2) allowance
of a collateral attack on a court-confirmed arbitration award;
and (3) conclusion that the underlying dispute in thie case was
not moot.
Based on the following, we affirm the April 25, 2002
final judgment.
A. Pactual Backaround
The dispute in the instant case criginated from the
DOT's temporary work ageignment involving the landscaping crew of
es the
the highway maintenance operations in Kane‘che and impli
> the Honorable Sabrina S. MeKenna presided over the matter at {aeue on
appeat
**® FOR PUBLICATION ***
collective bargaining agreements (CBA) of UPW and HGEA.?
Specifically, on June 17, 1996, the DOT temporarily awarded a
vacant Bargaining Unit 2 (BU-02) position in the “Windward crew"
co a BU-02 employee from another baseyard. As a result, UPW --
the collective bargaining agent for Sargaining Unit 1 (BU-01)
employees -- filed a grievance against the DOT on behalf of
William Kapuwai, a BU-01 truck driver for the DOT and the most
senior employee in the Windward Crew. UPW alleged that its CBA
(hereinafter, CBAL] required the DOT to award the temporary
assignment to Kapuwai.‘ After exhausting all the remedies
required by CBA1, UPW aubmitted notice of its intent to arbitrate
the grievance to the Dor.
B. Procedural Background
1, Arbitration Proceedings and Circuit Court Confirmation
on October 8, 1997, arbitration proceedings between UPW
and the DOT commenced. arts
> me collective bargaining agreements for UPW and HOEA define
temporary asvignmente ae “che assignment by a competent authority and the
Aseumption, without a formal change in position assignment, of the significant
Guties and responsibilieies of another person{.]”
4 au-01 ie made up of employees in the state in non.
collar position. "HRS § 69-G(a) (2) (Supp. 1996). Under CBAL, = temporary
Seeignnent must be avarded vo the jalitied employee in the
fe in the clase inediately below that of the temporarily vacant pos
Chal does not specify whether BU-0l employees may be assigned to non-
positions
We note that SU-o2 is made up of employees in the state in supervisory
biue-coilar positions, ARS § @9-6(a) (2). (Supp. 1996), and are represented by
HOBA. Unlike CAL, AGBA's CBA hereinafter, CBA2] specifically provides that
Priority for temporarily vacant 30-02 positions must be given to’ the saat
he DOT's Highway Divieien who ie in
Semler ee eitaccly beioe teat of the vacancy. ‘in cther words, Gan
Pequires chat only BU-02 employees can fil1 temporary BU-02 vacancies
*** FOR PUBLICATION ***
UPW contended that the DOT violated CBA1 by awarding the
temporarily vacant BU-02 position in the Windward Crew to a BU-02
employee from another basevard. TI
to award temporary assignments was a “management right" under HRS
1 DOT responded that the right
§ 89-9(d) (1993)* and, therefore, preempted any contradictory
provision in CBAL, In other words, the 007 asserted that, even
if its award of a BU-02 temporary assignment to a BU-02 employee
from another baseyard violated CBAl, it was entitled to do so as
of right under HRS § 89-9(a).
on May 11, 1998, the arbitrator issued a final written
decision and award in favor of UPW, in which he ruled that the
right to issue temporary assignnents was not a management right
and, therefore, the DoT violated CBA1. On May 15, 1998, UPW
moved the circuit court to confixm the arbitration award, which
the circuit court, the Honorable Kevin S.C. chang presiding,
granted on July 21, 1998.
Proceedings Before the HLRB
nile the arbitration proceedings were still in
progress, the DOT, on October 20, 1997, submitted a petition to
the HERB for a declaratory ruling [hereinafter, petition]
pursuant to HRS § 91-8 (1993) and Hawai'i Administrative Rules
> ane srovides in pertinent part: “The employer and the
exclusive representative ghall aot agree to any proposal vaien would ss
interfere with the rights and obligations of a public employer to... hire,
promote, transfer, acsign, and retain employees in poeitione{.)*
© HRS § 91-8 is quoted in section IITA, intra
*** FOR PUBLICATION ***
(HAR) Rule 12-42-9 (1981)’ as to whether a ruling by the
arbitrator that the DOT must award a BU-01 employee a temporarily
vacant BU-02 position would
late the DOT’s management rights
under HRS § 89-9(d). The DOT alleged that the arbitrator only
had jurisdiction to interpret CBAL and, therefore, a decision by
the arbitrator requiring the DOT to award temporary BU-02
assignments to BU-01 employees would require the DOT to knowingly
violate the CBA2 provision mandating that BU-02 temporary
assignments be awarded to BU-02 employees
on Novenber 7, 1997, HGHA filed a petition to intervene
in the declaratory proceedings, alleging, inter alia, that UPW's
attempt to require the DOT to assign BU-02 positions to BU-o1
employees infringed upon HGEA’s rights as the exclusive
bargaining representative of BU-02 employees to “bargain over the
pronotion and transfer of employees to positions within BU-02*
under HRS § 89-8(a) (1993). On November 10, 1997, UPW also
filed a petition to intervene on the ground that the proceedings
implicated the temporary ageignnent rights of BU-01 employees
under CBAL. Soon thereafter, all counties in the State filed
+ HAR Rule 12-42-9 ie quoted in section III-A, infra.
"HRS § 49-9(a) provides in pertinent part:
‘The euployee organization which hag bean c
tthe hoard ae representing the majority of employees in an
Appropriate bargeizing unit shall be the exciueive
Fepresentative of all employees in the unit. As exclusive
Fepresentative, it ehall have the right to act for and
fegoriate agrecrents covering all employees in the unit and
fail be responsible for representing the interests of all
Such enployeee without discrimination and without regard to
Guployee organization mesbership.
*** FOR PUBLICATION ***
ions to intervene on the ground that their rights to award
pet
temporary assignments could be affected by the HLRB’s declaratory
ruling, The HLRB granted all of the intervenore’ motions on
December 31, 1997
on January 21, 1998, UPW filed a menorandum urging the
HLRB to refrain from issuing a declaratory ruling, alleging,
Anter alia, that (1) the HLURB lacked jurisdiction because the
Giepute was properly submitted to “final and binding’
arbitration; (2) the DOT lacked standing to seek relief because
ite practices and policies were conaistent with the proper
exercise of “management rights" under HRS § 89-9(4); (3) the
proceedings for declaratory relief constituted an impermissible
collateral attack on the confirmed arbitration award; and (4) the
DOT was collaterally estopped from relitigating the same issues
presented in the arbitration proceedings.
on dune 7, 2000, the HLRE entered an order denying the
petition for a declaratory ruling (hereinafter, HLRB’s order]
pursuant to HAR Rule 12-42-9(£), in which the HLRB found that
‘che isaues herein are moot as the Arbitration Award has been
rendered and confirmed and there is no actual controversy between
the parties at this stage.” In essence, the HLRB refused to
iesue a declaratory ruling on the merite.
3. Appeal of the HLRB Decision to the Circuit court
on Guly 7, 2000, HOBA filed a notice of appeal to the
circuit court, the Honorable Sabrina S. McKenna presiding, from
*** FOR PUBLICATION ***
the HIRB’s order. On appeal, HGRA contended, inter alia, that
the HLRB’s deferral to the arbitration award was improper
inasmich as: (1) the iasue of whether temporary assignments was
a management right under HRS § 89-9(d) was not moot; and
(2) HOEA’s rights under HRS §§ 89-8 (a) and 89-9(4) as the
exclusive bargaining representative of BU-02 employees were
violated. Thus, HGEA requested that the circuit court order the
HLRB to issue a declaratory ruling on these issues. After
reviewing the matter under HRS § 92-14(a) (4) (1993), the court
determined that it was an Yerror of law" for the HLRB to conclude
that the dispute was moot ‘inasmuch as the petition for
declaratory ruling, as stated, indicates a recurring problem.
As such, the circuit court remanded the case to the HLRB to enter
a declaratory ruling.
Final judgment wae entered on April 25, 2002. on April
30, 2001, UPW filed its timely notice of appeal to this court.
II. STANDARDS OF REVIEW
existence of juriediction is a qu
Wiew de nove under the right/wrong
Tegarding subject matter jurisdiction may be
any stage of a cause of action. When reviewing @
Stee where the circuit court lacked subject matter
Surledietion, the appellate court retains jurisdiction, not
ae the serits, but for the purpore of correcting the error
fh Suriediction, A judgment rendered by a circuit court
Wiehoue subject matter jurisdiction is void.
Amatiad v. Odum, 90 Hawai'i 152, 158-59, 977 P.2d 160, 166-67
(1999) (citations and quotation marks omitted) .
*** FOR PUBLICATION ***
+ Statutory Interpretation
Questions of statutory interpretation are questions of
law tobe reviewed da uave under the right/vrong standard.
our seatuvory construction ie guided by the following well
established principles:
Sur forenoee obligation Le to ascertain and give
effect co the intention of the legislature, xhien ie
fo be obtained primarily from the language concained
in the statute itself. And we mist read statutory
language in the context of the entire statute and
construe ir inva manner consistent with its purpose
hen there Ie doubt, doubleness of
meaning, or indistinetivenees or uncertainty of sn
Sipreasion used in aeeatute, an ambiguity
in construing an ambiguous statute, “(c}he
meaning of the ambiguous words may be sought by
Geamining the context, with which the ambiguous words,
Phrases, and sentences may be compared, in order to
Aecertain their erue meaning. Moreover, the courts
Bay resort to extrinsic aids in determining
Jegislative inent. One avenue is the use of
Legislative history as an interpretive tool.
‘This court may also consider “(t]he reason
Jaw, and the Cause which induced the legislature to enact
ie, SS covaiecover ite true seaning.
Guth v. Preeland, 96 Hawai"i 147, 149-50, 26 P.3d 982, 984-85
(2001) (citations omitted) (ellipses points in original).
C. Review of an Agency Decision
Review of a decision made by the circus
ite review of an agency's decision is a
appeal. The standard of review 1s one in which this
Shure must determine whether the circuit court wae
Fight Sr wrong in ies decision, applying the standards
Set forth in HAS § 91-14(g) [(1983)] to the agency's
Secieion,
ung § 91-14, eatitled “Judicial review of conts
provides in'xelevant part:
(@). Upon review of the record the court may affirm
the decision of the agency or remand the case with
Ingeructions for fureher proceedings; or it may reverse oF
nedity the decision and order if the substantial rignts of
the petitioners may have been prejudiced becaise the
Adninistrative findings, conclusions, decisions, or ordere
ced cases,”
(2) ta violation of consetevetonal or
provisions; or
@ Of the statutory authoricy
or Surinaietion of the agency; oF
(3) Made upon unlawful proceaure; or
(a) Affected by other efror of law; oF
(5) Clearly erzoneaus in view of the
fellable, probative, snd eubetancial
‘Gvidence on the whole record; oF
*** FOR PUBLICATION ***
SS
(6) ambitrary, oF capricious, or
Characterized by abuse of discretion
or clearly unwarranted exercise of
Siecretion.
[winder HRs § 51-14(g), conclusions of law are reviewable
Under subsections (1), (2) and (4); questions regarding
Procedural defects under subsection (3); findings of fact
Ender subsection (3); jency'# exercise of discretion
Under subsection (6)
wl Inc. v, 104 Hawai'i 412, 426, 92
P.3d 494, 498 (2004) (citations and some quotation marks omitted)
(brackets in original).
TIT. PESCUSSTON
on appeal, UPW contends that the circuit court
(2) aid not have jurisdiction to review the HLRB’s order under
HRS § 91-14; (2) improperly allowed a collateral attack on a
court-confirmed arbitration award; and (3) erred in concluding
that the underlying dispute in this case was not moot
A. Jurisdiction to Review the HLRB“s Order
UpW contends that the circuit court did not have
jurisdiction to review the HLRB’s order under HRS § 91-14 because
the HIRB’s order did not result from a contested case. HGEA, on
the other hand, maintains that, pursuant to HRS §§ 91-8 and
91-14, a contested cage was unnecessary in order to confer
jurisdiction upon the circuit court.
‘the right to appeal is purely statutory and exists only
when jurisdiction is given by some constitutional or statutory
provision. Burk nt) si, 95 Hawai'i 288, 269, 22 P.3d
4, a5 (2002); rv ‘LIne. co., 77 Hawai'i 88,
oi, 881 P.2d 1234, 1237 (1994); Chambers v. Leavey, 60 Haw. 52,
*** FOR PUBLICATION ***
57, $87 P.24 607, 810 (1978). Jurisdiction is conferred upon
circuit courts to review administrative decisions by HRS § 91-14,
which provides in pertinent part
(a) Any person aggrieved by a finsl decision and order
in a contested case or by a preliminary ruling of the nature
thet deferral of review pending entry of a subeequent final
Gecision would deprive appellant of adequate relief is
entitled to judicial review thereof under ehis chapter
in other words, appellate review of a final administrative
decision is available where the decision results from a
Yeontested case." See Pub. Access Shoreline Hawai'i v. Hawai'i
County Planning Comm'n, 79 Hawai'i 425, 431, 903 P.24 1246, 1252
(1995) (hereinafter, PASH].
A contested case is defined in HRS § 91-1(5) (1953) ae
“a proceeding in which the legal rights, duties, or privileges of
apecific parties are required by law to be determined after an
opportunity for agency hearing.” In Bush v. Haw
Comm'n, 76 Hawai'i 128, 134, 870 P.2d 1272, 1278 (1994), this
court held:
If the statute or rule governing the activity in question
does not gandate @ hearing(’) prior to the aduinistracive
agency's decieion-maving, the actions of the aduinistracive
agency are not required by law and do not ayount to va
final decision or order in a contested case” from which a
Girect appeal co circuit court 1s possible.
see also FASH, 79 Hawai'i at 431, 903
P.2d at 1252, Thus, pursuant to ERS § 91-14, in order for
(Emphasis in original)
proceedings before an agency to constitute a contested case from
° an tagency hearing" ie defined as a “hearing held by an agency
inmedsately prior to's judicial review of a contested case ae proviced in
section Sivte-*" HRS § 91-1(6) (1993)
-10-
*** FOR PUBLICATION ***
which an appeal can be maintained, the agency must be required by
law to hold a hearing before a decision is rendered. stated
differently, diecretionary hearings are not contested cases
because they are not required by law. See Pele Defense Fund vs
B Venture, 77 Hawai'i 64, 68, 881 P.2d 1210, 1214
(1994).
In the instant cage, the HLRB’s order was issued
pursuant to HRS § 91-8 and HAR Rule 12-42-9. ERS § 91-8
provides:
Any interested person may petition an agency for a
Geciaratory order ae to the applicabiliey of any
Provision or of any rule or order of the agency.
Egency shall adopt rules prescriving the farm of the
petitions and the procedure for their submission,
Poneideration, and prompt disposition. Orders disposing of
agency orders.
(Emphasis added). HAR Rule 12-42-9 was promulgated pursuant to
HRS § 91-8 and etates in pertinent part:
Declaratory rulings by the board.
{s) Any public employee, employee organization, public
employer, of interested person or organization may petition the
board for a declaratory order aa to the applicability of any
statutory provision o: of any rule or order of the board
if) the board may, for good cause, refuse to issue a
without 1imieing the generality of the
The question ia specu
hypothetical and does
Gr facts which can re
exist in the near fue!
(2) The peticioner's interest is not of the type
Gihich vould give the petitioner standing to
taintain an action if such petitioner were to
Seek Judicial relief.
(3) The iesuance of the declaratory order may
Adversely affect the interests of the board or
fry of tee officers or employees in a litigat
“mich is pending or may reasonably be expected
(4) The matter ie not within the jurisdiction of the
Bosra.
w1-
**©* FOR PUBLICATION
(00) Hearing:
(2) “*iehough in the usual course of precessing a
petition sora declaratory rilina ue formal
Bearing shall be aranted £0 the petitioner. che
board sav. in ite discretion, omer euch
Broceading eet down for hearing.
(2) Ray petitioner who desizes a hearing on a
petition for declaratory ruling shall set forth
In detail in a written request the Feasons why
the matters alleged in the petition, rogether’
with supporting affidavits or other written
evidence and briefs or wencranda or legal
Suthoricies, will not permit the fair and
expeditious disposicion of the petition and, to
the extent that such request for hearing 1s
dependent upon factuel aasertion, shall
‘company such request by affidavit establishing
(emphases added)
As illustrated above, HRS § 91-8 and HAR Rule 12-42-9
do not require the HLRB to hold a hearing prior to issuing a
ruling on a declaratory petition. In fact, HAR
Rule 12-42-9(h) (1) specifically provides that a hearing is
@iscretionary. Because there is clearly no statutory mandate or
administrative rule entitling the DOT to a hearing, it would
appear that the HLRB‘s order does not result from a contested
HGEA, however, contends that the HLRB’s order need not,
result from a contested case and that, read together, HRS §§ 91-8
and 91-14 conferred jurisdiction upon the circuit court. We
agree. HRS § 91-8 provides that “[o]rders disposing of petitions
[for declaratory rulings] shall have the sane status as other
agency orders.” Inasmuch as the phrase “other agency orders” is
not defined anywhere in the Hawai'i Administrative Procedure Act
(HAPA), HRS Chapter 91, and is unclear on its face, we look to
* © * FOR PUBLICATION ***
extrinsic aids in order to determine what the legislature
intended by “other agency orders.” See Freeland, 96 Hawai'i at
149-50, 28 P.3d at 984-85 (“When there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty of an expression
used in a statute, an ambiguity exists. . . . In construing an
ambiguous statute . . . the courte may resort to extrinsic aids
in determining legislative intent.")
one avenue in construing an ambiguous statute is the
use of legislative history as an interpretive tool. Id.
According to a House Standing Committee Report, a basic purpose
of HAPA is to “provide for judicial review of agency decisions
and orders on the record, except where the right of trial de
novo, including the right of trial by jury, is provided by law.*
Hse. Stand. Com. Rpt. No, 8, in 1961 House Journal at 655
(hereinafter, House Report]. Additionally, in addressing an
agency's refusal to issue a declaratory ruling under HAPA -- such
as that in the instant cage -- the House report states that,
“[slince the refusal in itself would be an agency order, in
appropriate cases, application for judicial review on the grounds
that denial was an abuse of discretion on the part of the agency
nay be made." Id, at 659. Thus, we believe the legislature
intended the phrase “other agency orders" to permit review of
petitions for declaratory relief
Moreover, we note that this court has consistently
recognized that circuit courts have jurisdiction, pursuant to HRS
*** FOR PUBLICATION ***
§ 91-14, to review orders disposing of petitions for declaratory
rulings. See ¢.9., Vail v. Employees’ Ret. Sye., 75 Haw. 42,
ertaining an appeal,
49-51, @56 P.2d 1227, 1232-33 (1993) (
brought pursuant to HRS § 91-14, of an HRS § 91-8 declaratory
order); v. State Pub. nt Relations Bd., 60 Haw. 436,
437-43, 591 P.2d, 123, 114-16 (1979) (noting that the “circuit
court acquired jurisdiction (over a declaratory ruling]
pursuant to HRS § 91-14"); see also Sierra Club v. Hawai'i
Tourism Auth., 100 Hawai'i 242, 264, 59 P.34 877, 699 (2002)
(explaining that HAPA “applies only to judicial review of
contested case hearings, gee HRS § 91-14, or . . . a declaratory
order from an agency regarding the ‘applicability of any
statutory provision or of any rule or order of the agency,’
HRS § 91-8"). Accordingly, we hold that orders disposing of
petitions for declaratory rulings under HRS § 91-8 are appealable
to the cizcuit court pursuant to HRS § 91-14. Consequently, the
circuit court in the instant case had proper jurisdiction to
review the HLRB’s order.
B. fa " 1
Although unclear, UPW appears to allege that the
circuit court erred in remanding the case to the HLRB because the
proceeding for declaratory ruling constituted an inpermissible
collateral attack and was barred by collateral estoppel.
oie
*** FOR PUBLICATION ***
2, Collateral attack
A collateral attack “is an attempt to impeach a
judgment or decree in a proceeding not instituted for the express
purpose of annulling, correcting or modifying such judgment or
decree." Eixat Hawaiian Bank v. Weeks, 70 Haw. 392, 398, 772
P.2d 1187, 1191 (1989) (citing Kapi‘olani Estate, Ltd. v.
Atcherly, 14 Haw. 652, 661 (1903)) (quotation marke omitted). As
a general rule, a collateral attack may not be made upon a
judgment rendered by a court of competent jurisdiction. id; ase
also In-xe Genesve Data Tech., Inc., 95 Hawai'i 33, 40, 18 P.3d
895, 902 (2001).
UPW appears to contend that HGEA’s pursuit of a
declaratory ruling and subsequent appeal of the HLRB’s order
refusing to issue such a ruling constitute impermissible
collateral attacks on a final judgment. In the instant case, the
arbitration award became a final judgment under HRS §§ 658-12 and
658-14 (1993)! when it was confirmed by the circuit court.
However, HGEA filed its petition for intervention in the HLRB
proceedings while the arbitration was still ongoing and, thus,
well before the arbitration award was rendered or confirmed. As
such, the HGEA’s petition for intervention and subsequent appeal
of che HLRB’s order cannot, as UPW contends, be characterized as
“ung chapter 65@ was repealed in ite entirety in connection with che
enactment of the Uniform Arbitration Act, HRS Chapter 656A, 2002 Haw. Seau,
five Act 265, #5, at 20, Although HRS Chapter 658 was repealed, 2 ie
Applicable £0 the' instant ‘case becaise the recodified casper necane effective
after the arbitration award wae confirmed on May 15, 1998, 700: Haw. Sea!
fous Act 265, £ €, at 620, (oThie Act ehall take effect on July 2, 2002.
s+
*** FOR PUBLICATION ***
attempts to “impeach a judgment’ because there was no judgment or
award to impeach at the time HGEA brought its petition
2. Collateral Estoppel
UPW appears to argue that HGEA was collaterally
estopped from seeking declaratory relief from the HLRB because
HOEA was in privity with the DOT, who was a party to the
arbitration proceedings. “Collateral estoppel is an aspect of
rea judicata which precludes the relitigation of a fact or issue
which wae previously determined in a prior suit on a different
claim between the sane parties or cheir privies.* Maxeland v.
+2 S00" eae, 66 Haw, 119, 124, 657 P.2d
3035, 1039 (1983) (citation omitted). In order to establish a
claim of collateral estoppel, the party asserting the claim has
the burden of establishing that:
(2) {tlhe Sgoue decided in the prior adjudication 4
identical to the one prevented in ehe action in quest
(2) there is 3 final Juagnent on the nerite; (3) che iscue
lecided in the prior adjudication was essential to the final
Sudgmenc; and (8) the party against whom collateral estoppel
is aeserted was a party or in privity with a party to the
prior adjudication (.)
See Dorrance v. Lee, 90 Hawai'i 143, 149, 976 P.24 904, 910
(2999).
Ae stated above, a party asserting collateral estoppel
must satisfy all four elenents of the claim. Inasmuch as the
fourth element is lacking in the instant case, UPW’s claim is
without merit. In addressing privity, this court has previously
stated that “{plreclusion is fair in circumstances where the
nonparty and party had the same practical opportunity to control
<16-
*** FOR PUBLICATION ***
the course of the proceedings." Bush v, Matson, 61 Hawai! 474,
480, 918 P.2d 1130, 1136 (1996) (citation omitted). “Preclusion
nay also be appropriate where the party in the previous action
was acting in a representative capacity for the current party
However, several important rules limit the extent of preclusion
by representation. The most obvious rule is that the
representative mist have been appointed by a valid procedure.”
Id. at 481, 918 P.2d at 1137 (citation, brackets and quotation
marks omitted).
In the instant case, HGEA’s participation in the
arbitration proceedings was limited to the testimony of HGEA
representatives who were called to testify by UPW. HGEA was not
fa party in the arbitration and, thus, was not allowed to call its
own witnesses or cross-examine witnesses for UPW. As such, it
cannot be said that HGEA had the same opportunity as the DOT to
control the arbitration proceedings. In addition, although UPW
argues that the DOT served as a representative of HGEA, there is
no evidence in the record that HGEA appointed the DOT to
represent its interests by any valid procedure. Accordingly,
because HGEA was not in privity with the DOT, we hold that HGEA
was not collaterally estopped from seeking a declaratory ruling
from the HLRB.
Cc. Mootnese
upW contends that the circuit court erred in concluding
that the HLRS committed an error of law in ruling that the issues
w7-
* © © FOR PUBLICATION ***
presented in the petition for a declaratory ruling were rendered
moot by the confirmed arbitration award. It is well-established
that “[c]ourts [will] not consume time deciding abstract
propositions of law or moot cases, and have no juriadiction to do
so." Wong v. Bd, of Regents, Univ. of Hawai'i, 62 Haw. 391, 395,
616 P.2d 201, 204 (1980) (citing Territory v, Aldridge, 25 Haw.
565, 567-68 (1940)).
HGEA, however, contends, inter alia, that, even if the
confirmed arbitration award rendered the petition moot, the
circuit court properly remanded the case to the HLRB inasmuch as
the issues presented in the petition fell within an exception to
the moctness doctrine. *[WJe have repeatedly recognized an
exception to the nootnese doctrine in cases involving questions
that affect the public interest and are ‘capable of repetition
yet evading review.’* Qkada Trucking Co. v. Bd, of Water supply,
99 Hawai'i 191, 196, 53 P.24 799, 804 (2002) (citations omitted).
Im the instant case, it appears that the circuit court
remanded thie case to the HRB “inasmuch ag the petition for
declaratory ruling, as stated, indicates 2 recurring problem.”
We read the foregoing as a determination by the circuit court
that the issues raised by HGRA involved questions affecting the
public interest and presented a problem that was capable of
repetition yet evading review. UPW fails to challenge this
determination and the record contains evidence indicating that
ions and
the isgues presented by HGEA have arisen in past arbitr:
sie
*** FOR PUBLICATION ***
are likely to recur in the future. Thus, to the extent that the
cireuit court’s ruling and the record support a determination
that the issues presented to the HLRB fell within an exception to
the mootnese doctrine, we hold that the circuit court did not err
in concluding that the HLRB committed an error of law
iV, CONCLUSION
Based on the foregoing, we affirm the circuit court’s
April 25, 2001 final judgment.
Y
on the brief: ©
Herbert 8. Takahashi (of Barbro
Takahashi, Masui &
Tapconceiiceh tot Dean Cause ree
‘ftstvence/eppetice-appetlant
United Public Workers, Cre ucts be
APSCME, Local 636
charles K. Y. Khim,
for intervenor/appellant-
appellee Hawai'i Government
Employees Association,
APSCME, Local 152, AFL-CIO
Kathleen N. A. Watanabe and
Daniel A. Morris, Deputy
Attorneys General, for
petitioner/appellant-
appellee Linda Lingle,
Governor, State of Hawai'i,
joining in HGEA’s first amended
answering brief
Paul 7. Tsukiyama, Deputy
Corporation Counsel, for
intervenor /appel lant -appt
Mufi Hanneman, Mayor, City
and County of Honolulu,
joining in HEGA’s first amended
answering brief
-19-
|
13f7c851-6eb1-4217-bdc8-cfd4e2b1e3c8 | Felipe v. State Farm Insurance Company | hawaii | Hawaii Supreme Court |
1 IBRARY
No. 23466
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
a
STEPHANIE ANN FELIPE, a Minor, SHERI LYN VENTURA
FELIPE, a Minor, and KARIE LARISSA VENTURA FELIPE,
a Minor, by and ‘through their Co-Guardians, FRANCES
FELIPE and ALBERT VENTURA; FRANCES FELIPE and ANGEL
FELIPE, SR., as Co-Special Administrators of the
Estate of ANDY LUCERO FELIPE, aka FERNANDICO LUCERO
FELIPE, Deceased; FRANCES FELIPE and ALBERT VENTURA,
as Co-Representatives of the Estate of YOLANDA ELANOR
FELIPE, Deceased: FRANCES FELIPE, Individually,
Plaintiffs-Appellants-Petitioners
STATE FARM INSURANCE COMPANY, Defendant-Appellee-Respondent
and
— dal SoU
VICTOR NORMAN, et al., Defendants
id JL
oa
CERTIORARI TO THE INTERMEDIATE COURT OF APPERES
(CIV. No. 94-0276) al
One
a
(By: Acoba, J., for the court’)
‘The Application for Writ of Certiorari filed on
March 28, 2005 by Plaintif£s-Appellants-Petitioners is hereby
denied.
DATED: Honolulu, Hawai'i, April 7, 2008.
FOR THE COURT:
/Riocciace soscice C
Hoon, C.0-, Levinson, Nakayama, Acobe, and
James J. Bickerton and William
W. Saunders, Jr. (Bickerton
Saunders Dang & Sullivan),
Henry J. Hannigan and
Douglas D. Ehresman (Hannigan &
Ehresman), and Jeoffrey L.
Robinson (Robinson Phillips «
Calcagnie), for plaintifts-
appellants-petitioners,
on the writ.
John T. Komeiji and Karen Y.
Arikawa (Watanabe Ing Kawashima &
Komeiji, LLP), for defendant~
appellee-respondent, in
opposition.
|
82c5797d-43c8-4584-9775-5ae63a156f8d | State v. Ilalio | hawaii | Hawaii Supreme Court |
‘+*¢NOT FOR PUBLICATION*#*
No. 25883
=
m
c
IN THE SUPREME COURT OF THE STATE OF HAWAI'I -
Haid wa song
STATE OF HAWAI'I, Plaintiff-Appellant
JAMES PAUL ILALIO, also known as Lopaki Sakalia
and Vitti Ialio, Defendant-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 02-1-2609)
(By: Moon, C.J., Levinson, and Duffy, JJ.
and Acoba, J., Dissenting, With Whom Nakayama, J., Joins)
By its June 10, 2003 notice, Plaintiff-Appellee State
ef Hawai'i (the prosecution) appeals from the May 29, 2003 ordi
of the circuit court of the first circuit (the court)* dismissing
the December 3, 2002 indictment charging Defendant-Appellee James
Paul Ilalio, also known as Lopaki Sakalia and Vitti Ilalaio
(Defendant) with Count I, habitually driving under the influence
of intoxicating liquor or drugs, Hawai'i Revised Statutes (HRS
(Supp. 2000) and/or 291-4.4(a) (2) (Supp 2000)
$$ 291-4.4(a) (2)
and Count II, driving after license suspended or revoked for
driving under the influence of intoxicating liquor, HRS § 291-4.5
on appeal the prosecution argues, inter
(1993 & Supp. 2000).
and HRS
alia that, as to HRS §§ 291-4.4(a) (1) and ~4.4(a) (2)
‘The Honorable Sandra A. Simms presided
‘ssNoT FOR PUBLICATION:
§ 291-4.5, “the trial court abused its discretion when it
dismissed the indictment as the [prosecution] properly charged
Defendant under the statutes that were in effect at the time
Defendant committed the offenses in question.” State v
Dominguez,
that HRS § 291-4.4 (Supp. 1999) was substantially re-enacted in
Hawad' w--, 107 P.3d 409, 411 (2008), held
HRS § 2916-61 (Supp. 2001) and is dispositive of Count 1.7 state
vs Young, No. 25610, slip op. at 3-4 (Mar. 30, 2005), held that
HRS § 291-4.5 (1993 6 Supp. 2000) was substantially re-enacted in
HRS § 2918-62 (Supp. 2004) and is dispositive of Count 11.
Therefore,
In accordance with Hawai'i Rules of Appellate Procedure
Rule 35, and after carefully reviewing the record and the briefs
submitted by the parties, and duly considering and analyzing the
Jaw relevant to the argunents and issues raised by the parties,
IT IS HEREBY ORDERED that the court’s order filed on
May 29, 2003, from which the appeal is taken, is vacated with
+ _befendant’s argunents that (1) “prosecution is barred by the
general rule prohibiting post-repeai prosecutions,” (2) “prosecution Ss barred
By the plain meaning of Act 189's repeal of HRS $§ 291
(3) "prosecution 1s barred because HRS § 2916-61 i= not. (a)
enactnent’ of HRS § 291-¢.4 and HRS § 2918-62 18 not a “substantial re
Ghactment’ Of HAS § 291-4.5*" are isposed of and subsumed in the analyses set
forth in the majority and dissenting opinions in Deainaues and Joune.
Getenane argues further thet s{ulnder the seule Gf enity, an omblgutty, if
any, attendant to the Legislature's repeal of as $6 291-4.4 and 292
Should be resolved in [Defendant's] favor." However, no ambiguity is
Giscernes in the repeal of HRS §§ 291-4.¢ and 291.
‘**NOT FOR PUBLICATION***
respect to Count I and vacated with respect to Count II, and the
case remanded to the court in accordance with this order
DATED: Honolulu, Hawai'i, April 4, 2005.
on the briefs:
Mark Yuen, Deputy Prosecuting D .
Attorney, City & county of AEG ora
Honolula, for plaintst#
appellant.
Grae dadiys >
James S. Tabe, Deputy Public
Defender, for defendant-
appellee.
|