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8c8251cb-6588-44ec-bce4-5527834769a9 | Office of Disciplinary Counsel v. Leong | hawaii | Hawaii Supreme Court | No. 26910
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
‘THOMAS S. LEONG,, Respondent.
(ove 03-115-7715)
(ys Moon, ¢.., Levinson, Nakayama, Acoba, and Duffy, 33.)
upon consideration of (1) the Disciplinary Board’ =
report and recommendation for the disbarment of Respondent Thomas
5. Leong (Respondent Leong), (2) Respondent Leong’s lack of
cbjection as exhibited by the lack of # request by Respondent
Leong to file briefs pursuant to Rule 2.7(d) of the Rules of the
Suprene Court of Havat's (RSCH), and (2) the record, we conclude
that Petitioner Office of Disciplinary Counsel (Petitioner ODC)
proved by clear and convincing evidence that, while Respondent
Leong represented Joni S1ivoski and Carl Sliwoski, Respondent
Leong conitted the folloving violations of the Havas'i Rules of
Professional Conduct (HRC):
+ one violation of HRPC Rule 1.1 (requiring a lawyer to
provide competent representation to a client)
+ one violation of HREC Rule 1.3 (sequizing a lawyer to
act with reasonable diligence!
+ one violation of HRPC Rule 1.4(a) (requiring a lawyer
to keep a client reasonably informed about the status
of a matter and promptly comply with reasonable
requests for information);
LAW LIBRARY
Oats
two violations of HRPC Rule 1.15(a) (1) (requiring a
lawyer in private practice to maintain a trust account
separate from business or personal accounts);
one violation of HRPC Rule 1.15(b) (requiring a lawyer
in private practice to prominently label each trust
account, as well as deposit slips and checks drawn
thereon, as “client trust account”);
two violations of HRPC Rule 1.15(c) (prohibiting a
lawyer from conmingling client funds with the lawyer's
own funds);
two violations of HRPC Rule 1.15(c) (prohibiting @
lawyer from misappropriating client funds for the
lawyer's own use and benefit);
two violations of HPC Rule 1.15(c) (requiring a lawyer
to deposit unearned or disputed client funds into a
client trust account);
two violations of HRPC Rule 1.19(4) (requiring a lawyer
to deposit all client funds and unearned retainer fees
into a client trust account);
one violation of HRPC Rule 3.2 (requiring @ lawyer to
make reasonable efforts to expedite litigation
consistent with the legitimate interests of the
client);
one violation of HRPC Rule 3.3 (a) (4) (prohibiting a
lawyer from knowingly offering evidence that the lawyer
knows to be false):
one violation of HRPC Rule 3.4 (b) (prohibiting a
lawyer from falsifying evidence);
+ one violation of HRPC Rule 8.1(a) (prohibiting a lawyer
in connection with a disciplinary matter from knowingly
making a false statement of material fact);
+ six violations of HRPC Rule 8.4(a) (prohibiting a
lawyer from violating the Hawai'i Rules of Professional
conduct) + and
+ three violations of HRPC Rule 8.4(c) (prohibiting a
lawyer from engaging in conduct involving dishonesty
fraud, deceit, or misrepresentation) -
We hereby accept and adopt the hearing conmittee’s findings of
fact and conclusions of law for ODC 03-15-7715. We hereby adopt
the Disciplinary Board's recommendation to disbar Respondent
Leong. Cf. Office of Disciplinary Counsel v. Lau, @5 Hawai'i
212, 216, 941 P.2d 295, 299 (1997) (*[W]here misconduct is severe
and extensive and includes misappropriation of clients’ funds, it
would be difficult, if not impossible, to establish sufficiently
strong evidence of mitigation to warrant a penalty lesser than
disbarment.” (citation omitted)). Therefore,
YT IS HEREBY ORDERED that Respondent Thomas S. Leong
(attorney number 6002) is disbarred from the practice of law in
Hawai'i, effective thirty (30) days after entry of this order, as
RSCH Rule 2.16(c) provides.
DATED: Honolulu, Hawai'i, April 4, 2005.
ize Prpearnem—
Pants puns ne-
|
8ff524bf-5a75-4a40-9479-67649c5f0050 | Roger v. Roger | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘*** NOT FOR PUBLICATION ***
No. 26875
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
MATTHEW W. ROGER, Plaintiff-Appellee
LILIAN ROGER, Defendant-Appellant
SSS
APPEAL FROM THE FIRST CIRCUIT COURT
(FC-D NO. 03-1-3560)
(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 opening brief expired on January 15, 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, April 12, 2005.
a
Pessecee Cmte amen
oeowree
Yams. Duty bse
|
21c1b5ed-c64a-4e33-91eb-6684d4e278cd | State v. Tupua | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 25602
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I,
Plaintiff-Appellee-Respondent,
vs.
RUTA TUPUA,
Defendant~Appellant-Petitioner,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 02-1-0676)
ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the application for a writ of
certiorari filed on March 30, 2005, by the defendant-appellant-
petitioner Ruta Tupua, the same, being untimely, is hereby
dismissed for lack of appellate jurisdiction. See Hawai'i
Revised Statutes § 602-59(c); Hawai'i Rules of Appellate
Procedure Rule 40.1(a); Korsak v. 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 writ of certiorari was untimely,
inasmuch as the application was filed two days after the thirty
day deadline).
DATED: Honolulu, Hawai'i, April 11, 2005.
Jacob Merrill,
for defendant-appellant
Ruta Tupua, on the writ
|
67d6f421-fda6-48c2-b370-e0b326aab031 | In re Doe, born 12/14/91 | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘##sNOT FOR PUBLICATION***
No. 26576
IN THE SUPREME COURT OF THE STATE OF HANAT'T 3
IN THE INTEREST OF .
JOHN DOE:
Born on December 14, 1991, a Minor
a8
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-J NO. 0061017)
(ey: Moon, C.J., Levinson, Nakayama,
Acoba, and Duffy, JJ.)
Minor-Appellant John Doe! appeals from the April 14,
2004 Order of the first circuit family court (the family court)
denying Minor’s Motion for Reconsideration of Adjudication filed
on April 5, 2004. On January 6, 2004, State of Hawai'i-Appellee
(the prosecution) filed a petition against Minor in the family
court, alleging that he committed the offense of theft in the
fourth degree. Trial was held on March 15, 2004. The family
court? found that the material allegations of the petition were
proved beyond @ reasonable doubt and adjudicated Minor a law
violator. The disposition hearing inmediately followed. A
decree was entered by the family court on March 15, 2004, placing
Minor on probation.
+ For purposes of preserving confidentiality, Minor-Appellant John
Doe is referred to a8 “Minor
+ the Honorable Keren M, Radius presided.
‘+#*NOT FOR PUBLICATION
eee
on April 5, 2004, Minor, through counsel, filed a
vwotion for Reconsideration of Adjudication,” seeking
reconsideration of the March 15, 2004 adjudication on the ground
of insufficient evidence of an intent to defraud.
Reconsideration was not sought as to any dispositional matter.
However, the “Decree Ret Law Violation Petitions” was attached as
an exhibit. ‘The family court heard the motion for
reconsideration on April 14, 2004, and denied it by order entered
the same day. Notice of appeal was filed by Minor on May 14,
2004. In the instant case, the appealable final order or decree
was the March 15, 2004 decree disposing of the petition by
placing Minor on probation. Minor moved for reconsideration of
the adjudication rather than the disposition, but did attach the
order of disposition to the motion. Although a defect exists
because Minor filed a motion for reconsideration of the
adjudication and not disposition, there is jurisdiction to decide
this appeal. See in re John Doe, born on Novenber 3, 1986, No.
26627, slip op. at 9 (Mar. 23, 2005) (stating that “the right to
effective assistance of counsel should apply in juvenile ‘law
violator’ cases as in adult criminal cases, and a defective
appeal caused by counsel . . . does not invalidate the appeal”).
Minor’s sole point on appeal is that “there was
insufficient evidence adduced at trial to establish that Minor
had the requisite intent to defraud.” In State v. Shinvama, 101
‘**NOT FOR PUBLICATION!
Hawai'i 389, 69 P.3d $17 (2003), this court said that “the
prosecution had the burden of proving that [the defendant] either
(a) intended to use deception to injure [the retailer's}
interest, which had value, in which case the requisite state of
mind as to each of the elements was ‘intentionally,’" or (b) knew
that he was facilitating an injury to (the retailer's] interest,
which had value, in which case the requisite state of mind as to
each of the elements was “knowingly.” Id. at 398, 69 P.3d at
526.
As the prosecution states,
evidence adduced in the trial court must be considered
In the strongest light for the prosecution when the
appellate court passes on the legal sufficiency of
Such evidence to support a conviction; the same
Standard applies whether the case was before a Judge
Jury. “The test on appeal is not whether guilt is
ablisned beyond @ reasonable doubt, but whether
re was substantial evidence to support the
Conclusion of the trier of fact,
State vi" Quites, 85 Hawai'i 126, 145, 938 P.24 559, 576
(1557) (eitation omitted). “Suostantial evidence” as to
every material element of ‘the offense charged is credible
evidence, which is of sufficient quality and probative value
fo enable ¢\person of Feasonabie cation to support «
conclusion:
State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998)
(brackets, internal quotation marks, and citation omitted) .
“Furthermore, it is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of the witnesses
and the weight of the evidence.” Tachibana v, State, 79 Hawal't
226, 238, 900 P.2d 1293, 1306 (1995) (citation omitted).
‘#¢NOT FOR PUBLICATION***
Applying the substantial evidence standard and
considering the evidence in the strongest light for the
prosecution, there was substantial evidence of intent to defraud.
As the prosecution argues, there was substantial evidence (1) “in
Minor's surreptitious behavior in looking over his should(er]
«sy as Af to see Lf he was being observed,” (2) “in hiding
down side aisles,” (3) “in taking physical possession of a
shopping cart containing unpaid-for merchandise,” and (4) in
wwalking by . . . cash register(s) and leaving (the) store”
without paying. Although the defense states that finding of fact
no. 5, to the effect that “Minor took a Sears shopping cart and
his father placed three (3) boxed DVD players from a display into
the shopping cart” was clearly erroneous because “(nothing in
the record establishes that Minor was the one who initially took
the shopping cart,” as the prosecution responds, “FOF No. 5 does
not conclude that Minor initially took the cart.” (Emphasis in
original.) Therefore,
In accordance with Hawai'i Rules of Appellate Procedure
ule 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,
IT IS HEREBY ORDERED that the family court’s March 15,
2004 Decree Re: Law Violation Petitions, and its April 14, 2004
‘+#+NOT FOR PUBLICATION***
Order Denying Motion for Reconsideration of Adjudication Filed
April 5, 2004, are affirmed.
DATED: Honolulu, Hawai'i, aprit 21, 2005.
on the briefs: Got
Joyce K, Matsunori-Hoshijo,
Deputy Public Defender, for :
Minor-appellant SlicGkeaianem—
Anne K. Clarkin, Deputy Becneee Certo ene
Prosecuting Attorney, City &
County of Honolulu, for
State of Hawai‘i-Appellee. PON
Gene rnanyitr
|
cd0b49fc-bc52-4755-b24a-52ed2eed9357 | State v. Koch. J. Acoba concurring separately. S.Ct. Order Denying Motion for Reconsideration, filed 05/31/2005 [pdf], 107 Haw. 348. J. Acoba dissenting separately. | hawaii | Hawaii Supreme Court |
‘444 FOR PUBLICATION *1
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
00 —
STATE OF HAWAI'I, Plaintiff-Appellee,
JOHN JAMES CALEB KOCH, Defendant-Appellant
Wo. 26296
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CR. NOS. 02-1-0558(1) and 03-1-0271(1))
May 9, 2005
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ., AND ACOBA, J.,
CONCURRING SEPARATELY
OPINION OF BY THE COURT BY LEVINSON, J.
The defendant-appellant John James Caleb Koch appeals
from the consolidated November 24, 2003 judgment of the circuit
court of the second circuit, the Honorable Joel E. August
presiding, in Cr. Nos. 02-1-0558(1) and 03-1-0271(1). In Cr. No.
02-1-0558(1), Koch was convicted of and sentenced for the
following offenses: (1) promoting a dangerous drug in the third
degree, in violation of Hawai'i Revised Statutes (HRS) § 712-1243
(1993 & Supp. 2001);! (2) promoting a detrimental drug in the
HRS § 712-1243 provided:
(2) A person commits the offense of prencting
rug An the thira degree if the person knowingly posi
Sangerovs rug in any ancunt
(2) Prenoting « dangerous drug in the third degree is
{eontinued...)
dangerous
es any
t
&
+*4 FOR PUBLICATION *#*
third degree, in violation of HRS § 712-1249 (1993); and (3)
prohibited acts related to drug paraphernalia, in violation of
HRS § 329-43.5(a) (1993). In Cr. No. 03-1-0271(1), Koch was
1(.. .continued)
is © felony
(3! Notwithstanding any law to the contrary, if the
commission of the offense of promoting « dangerous drug in the
ERTEa degree under this section involved the possession oF
Elstribution of methamphetamine, the person convicted shall be
Sentenced to on indeterminate term of inprisonnent of five years
Sith a mandstory minimum term of imprisonment, the length of which
hal be not less than thirty days and not greater than
fuovand-avhalf years, at the discretion of the sentencing court.
The person convicted shall not be eligible for parole during the
Bundstory period of isprisonment:
Effective July 1, 2002, the legislature amended HRS § 712-1243 by adding
Nexcept for first time offenders sentenced under section 706-(622.5]" to
subsection (3) after *(nJotwithstanding any law to the contrary.” See 2002
Haw, Sess. L. Act 161, 8 8 at S75. As such, HRS § 712-1243(3) (Supp. 2002)
provided:
(2) Notwithstanding any law to the contrary, gxcept tor
672.5, if
the coamission of the offense of pranoting a dangerous drug
Sn the third degree under this section invcived the
possession or distribution of methamphetamine, the person
Seavieted shall be sentenced to an indeterminate term of
imprisonment of five years with a mandatory minimum term of
imprisonment, the length of which shall be not less than
thirty daye and not greater than twovand-a-half years, at
the discretion of the sentencing court. ‘The person convicted
shell not be eligible for parole during the mandatory period
Of imprisonment.
(emphasis added.) Effective July 1, 2004, the legislature amended HRS § 712-
IEES by Geleting subsection (3) in its entirety. See 2004 Haw. Sess. L. Act
a4, § 7 at zit.
+ gas § 712-1249 provides that “[a) person commits the offense of
promoting @ detrimental drug in the third degree 1f the person knowingly
Possesees any marijuana or any Schedule V substance in any amount.”
2 Rs § 329-43.5(a) provides:
Tt {s unlawful for any person to use, or to possess with
intent to use, drug parsphernalie to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert, preduce, process,
Prepare, test, analyze, pack, repack, store, contain, conceal,
Tngects ingest, inhale, sr otherwise introduce into the human’ body
s"eentrolled substance in viclation of this chapter. Any person
shovviclates his tection Le gulity of a class © felony and upon
‘eontinved...)
‘+*# FOR PUBLICATION *#*
simultaneously convicted of and sentenced for the following
offenses: (1) promoting a dangerous drug in the third degree, in
violation of HRS § 712-1243 (1993 & Supp. 2002), see supra note
1; and (2) prohibited acts related to drug paraphernalia, in
violation of HRS § 329-43.5(a), see supra note 3.
on appeal, Koch contends that the circuit court
illegally sentenced him and denied his federal and state
constitutional rights to due process when it imposed a sentence
pursuant to HRS § 712-1243(3), see supra note 1, rather than
pursuant to HRS § 706-622.5 (Supp. 2002)‘ as a first-time drug
>(..scontinued)
Conviction may be inpriscned pursuant to section 706-660 and, if
Sppropriace as provided in section 706-641, fined pursuant to
section 106-640.
«ngs § 106-€22.5 provided:
Sentencing for firet-tine drug offenders; expungenent. (1)
Notwithstanding any penalty or sentencing provision under part IV
DL chapter Tidy a person convicted for the firet time for any
GEeense under part IV of chapter 712 involving possession or use,
fot including to distribute or manufacture as defined in section
312-1240) of any dangerous drug, detrimental drug, harmful drvg,
Intoxieating compound, narijuané, or marijuana concentrate, as
Getined in secticn 112-1240, oF involving possession or use of
Srug paraphernalia under section 228-#3.5, who is non-violent, as
Getermined by the court after reviewing the
(2) Criminal history of the defendant,
@ ‘circumstances of the offense for which the
‘dant is being sentenced; and
(c)_ Other information deened relevant by the court:
shall be sentenced in accordance with subsection (2); provided
that the person dose not have a conviction for any violent felony
for five years inmediately preceding the date of the commission of
EXt Gi¥enge for which the defendent is being sentenced.
(2) A person eligible under subsection (1) shall be
sentended to probation to undergo and complete 2 drug treatment
Program. Tf the person fails co complete the drug treatment
Erogram end if no other suitable treatment is amenable to the
Eftender, the person shell be returned to court and subject to
Sentencing under the applicable section under thie part. As @
SSnaiicn of probation under thie subsection, the court’ shall
Fequire an assesenent as to the treatnent needs of the defendant,
(continced.
+4# FOR PUBLICATION ***
offender.
We hold that the circuit court did not err in
sentencing Koch pursuant to HRS $ 712-1243(3), inasmuch as he did
not qualify for sentencing under HRS § 706-622.5 as a first-time
drug offender. Nonetheless, for reasons we discuss infra in
Section IIT, we vacate Koch's sentences with respect to the
mandatory minimum terms of inprisonnent that the circuit court
imposed and remand this matter for redetermination of the
mandatory minimum terms.
1. BACKGROUND
on October 14, 2002, a Maui grand jury returned an
indictment against Koch in Cr. No, 02-1-0558(1), charging him
with the following offenses:' (1) promoting @ dangerous drug in
“(.. continued)
conducted by @ person certified by the department
ESnduct the aseesemente. The drug treatment program for the
Gofendant shail be based upon the assessment. The court may
Sequire the person to contrisute to the cost of the drug treatment
Brose:
13) For the purposes of this section, “drug treatment
progran” means drug of substance abuse services provided cutside 2
Ebrrectional facility, but the services do not require the
expenditure of state moneys beyond the limits of available
‘Sppropriations.
14) The Court, upon written application fron a person
sentenced under this part, shall issue 2 court order to expunge
ine record of arrest for that particular conviction; provided that
2 person.
Nothing in this section shall be construed to give rise
‘of action against the State, state employee, or
treatment. provider
Effective July 1, 2004, the legislature amended HRS § 706-€22.5 in respects.
hot to pertinent to the present matter. See 2004 Haw. Sess, L. Act #4, § 12
ae 2ie-as
* A codefendant, Kurtis Leo Steger, was algo charged in the same
Andletment, Under Ce. No, 02-1-088711).
4
*#* FOR PUBLICATION *#*
the first degree (Count I), in violation of HRS § 712~
1241(2) (a) (4) (Supp. 2002); (2) five counts of prohibited acts
related to drug paraphernalia (Counts II, IV, VI, VII, and XI),
in violation of HRS § 329-43.5(a), see supra note 3; (3)
attempted promotion of a dangerous drug in the first degree
(Count III), in violation of HRS § 712-1241(1)(b) (4) (Supp. 1997)
and HRS § 705-500 (1993); (4) promoting a dangerous drug in the
third degree (Count V), in violation of HRS § 712-1243; (5)
promoting a detrimental drug in the third degree (Count x), in
violation of HRS § 712-1249, see supra note 2; and (6) acquiring
a firearm without registration (Count XII), in violation of HRS
§ 134-3(b) (Supp. 1999). The indictment alleged that Koch
committed the foregoing offenses on or about April 12, 2002.
on July 8, 2003, the cirevit court granted the motion
of the State of Hawai'i (hereinafter, the “prosecution”] to
dismiss Counts V and XII in Cr. No. 02-1-0958(1).
The circuit court conducted a jury trial in Cr. No. 02-
1+0558(1). On July 18, 2003, the jury returned the following
verdicts: (1) as to Count 1, guilty of the included offense of
promoting a dangerous drug in the third degree, in violation of
HRS § 712-1243; (2) guilty as charged in Count X of promoting a
detrimental drug in the third degree, in violation of HRS § 712-
1249; (3) guilty as charged in Count XI of prohibited acts
related to drug paraphernalia, in violation of HRS § 329-43.5(a);
and (4) not guilty as to Counts 12, III, IV, VI, and VII.
Meanwhile, on June 8, 2003, @ Maui grand jury returned
an indictment against Koch in Cr. No. 03-1-0271(1), charging him
+ FOR PUBLICATION ***
with (1) promoting a dangerous drug in the third degree (Count
1), in violation of HRS § 712-1243, see supra note 1, (2)
prohibited acts related to drug paraphernalia (Count I1), in
violation of HRS § 329-43.5(a), see supra note 3, and (3) place
to keep pistol or revolver (Count 111), in violation of HRS
§ 134-6(c) (1993 & Supp. 1999). The indictment alleged that Koch
committed the foregoing offenses on or about February 17, 2003.
on October 27, 2003, Koch entered no contest pleas to
count I, promoting a dangerous drug in the third degree, and
Count If, prohibited acts related to drug paraphernalia. On
January 21, 2004, the circuit court granted the prosecution's
notion to dismiss Count III, place to keep pistol or revolver.
Sentencing in connection with Cr. No. 02-1-0558(1) was
originally scheduled for Septenber 17, 2003, but was continued to
November 19, 2003 pending the outcone of Cr. No, 03-1-0271(1),
which had been set for trial commencing on October 27, 2003. The
prosecution did not object te the continuance of the sentencing
hearing in Cr. No. 02-1-0558(1).
on Novenber 5, 2003, the prosecution filed a motion for
consecutive terms of imprisonment, or in the alternative,
extended terms of imprisonment in both criminal numbers. On
Novenber 18, 2003, Koch filed a memorandum in support of
eligibility for sentencing under HRS § 706-622.5, gee supra note
4, also in both criminal numbers.
on November 21, 2003, the circuit court conducted a
sentencing hearing and a hearing on the prosecution's motions for
extended terms of imprisonment, or in the alternative,
s** FOR PUBLICATION *#*
consecutive terms of imprisonment, in both criminal numbers. The
circuit court initiated the hearing with the following statement:
THE COURT: Before we go into this, I want to indicate
that not only hes the (cJoure reviewed the ost recent
Feport, but the (court has also had the opportunity of
iewing the notion for consecutive terms of Imprisonsent
and/or memorandum in support under {HRS § }706-622-5.
i am familiar with Mr. Koch's background and did at
least one trial (that) he was involved an. +. 7 think
[nvolving for all intents and purposes a codeféndant Mr
Btelgeri; he has got sone cases pending oF some mattere
Pending in this courtroom, and I’ve heard the testimony of
saat Mr. Koch's trial:
‘gaat on" ber
whether Mz. Koch was dealing of nob, —L mean, ics oretty
uae deel
“and tiere’s been an acknowledgment of that from at
Least two people who were somehow caught up in this, and I'm
familiar with what ae found in the place where Mr. Koch was
ifeing.
_ IMly general impression is that as between Mr:
ste(ger) and Mrs Roch, Me- Koch was sort of nore the
follower than the leader betwesn the two of thes.
[olne telling point is that the reason that they were able
fo get a search warrant for the lecation of the place where
he was living in Kihei(, Maui] in the matters we're dealing
With. . = I'believe se would be [Cr. No. Oz-1-]0588 ~~
‘the’ fact that the confidential informant had purchased
drugs from Hr. Koch.
Seer ot completa fe the charges that
‘End ny inclination is to indicate to counsel that 1 do
not think he is eligible for sentencing under Act 161 [(HRS
§ 106-622.5)]., I mean(,] Act 161 was... not designed to
Geel with people like Mr. Roch. That's not where the
legislature was going. x, Koch may have a drua oxcblen.
bot think he's got nore Of a sales problem anda
nexchandisina problem than he's cot; drug prcblen as
percray
(Emphases added.)
‘Thereafter, defense counsel argued as follows:
[Deputy Public Defender (OFD)]: . . - I'm familiar
with all the information you discussed{, 1 ahd accepted at
Hace value, I reach the conclusion that you have reached.
‘+## FOR PUBLICATION *#*
However, . . . the Jury had the chance to convict Mr.
Koch of tho counts Of promoting a dangerous drug in the
Hizse degree and approximately 11 other counts.” What they
Convicted him of wee poseession in any amount. And they had
a choice between Ry By of Cl felonies] there, paraphernalia
and pot. That was --/is the jury's verdict. - «
im arguing that based on the jury's decision, he
should be sentences for possessory c¥ines because those are
fhe crimes that a Jury of 12 people convicted him of, and
they had the chance to throw the book at him. He was
Testing at 20 (years) to lifel.) + «
As for consecutive and extended, that would be totally
Anappropriate ina case like this, Again, the jury found
that whatever his involvenent uae, was Less’
As to Cr. No. 02-1-0558(1), the circuit court sentenced
Koch as follows: (1) in Count I, promoting a dangerous drug in
the third degree, a five-year indeterminate maximum prison tern,
subject to a mandatory minimum term of two years and six months;
(2) in Count X, promoting a detrimental drug in the third degree,
thirty days in prison; and (3) in Count XI, prohibited acts
related to drug paraphernalia, a five-year indeterminate maximum
prison term to run concurrently with the term in Count I. As to
cr. No. 03-1-0271(1), the circuit court sentenced Koch as
follows: (1) in Count I, promoting a dangerous drug in the third
degree, a five-year indeterminate maximum prison tern, subject to
a mandatory minimum term of two years and six months; and (2) in
count II, prohibited acts related to drug paraphernalia, a five-
year indeterminate maximum prison term to run concurrently with
the term in Count I, The circuit court imposed all terms and the
nendatory minimum term in Cr. No. 03-1-0271(1) te run
concurrently with those imposed in Cr. No. 02-1-0558(1).*
«the eireult court presumably imposed the mandatory ainiaun terms
of inpriconnent of two years and six nonthe ae to Count I in Cr. No. OZ-1-
Bése(d) and Count I sn Ce. No. O3-1-0211(1) pursuant to HRS § 7i2-1243(3), sae
(continued. +1
*** FOR PUBLICATION ***
On Novenber 24, 2003, the circuit court entered its
Judgments of conviction and sentences in both criminal numbers.
on December 19, 2003, Koch timely filed notices of appeal.
(A) sentencing judge generally has broad
discretion in imposing a sentence. State e Gaylord,
Ge Hawas's 127, 1¢3-44, 890 P.2d 1367, 1183-64 (1995)
States, Valera, 74 Haw. 424, 435, 848 P.2d 376,
SEPT 553) . “me applicable’ standara of review
For Sentencing of resentencing metters is whether the
Court committed plain and manifest abuse of discretion
Seite Geciaion.” Gawiorg, 78 Hawai'i at 184, 890 P.20
at 1164; tate ¢. Kumukau, 72 Haw. 218, 227-28, 767
Pi2a 682, e87-98 (1380); State vs Murzavl.) 62"Haw.
i, 25, 621. P.24 334, 342-43. (1980); Seate wv, Exy, 61
Wow, 226, 231, 602 Pr2d 13, 16 (1979).
Keaue v. State, 79 Hawai'i 201, 284, 901 P.2a 401, 404
TTS Flaccors which indicate s plain and manifest
abuse of discretion are arbitrary of capricicus action by
the judge end a rigid refusal to consider the defendant’ s
contentions.” “gry, 61 Haw. at 231, 602 P.2d at 17. And,
SSigieneraliy, £0 conststute an abise it must appear thet
the court clearly exceeded the bounds of reason or
Gisregarded rules or principles of law or practice to, the
Substencie! deteiment of a party 1itigant.' Keawe,
ARSE We bot Sore. 2a at Gee cquctine Gavan 38 wows’
at i44, 890 P.2d at T10¢ (quoting Kumukau, 72 Hom, at
227-28, 187 P.2 at 6BE)).
State v. Kaua, 102 Hawai'i 1, 7, 72 P.3d 473, 479 (2003) (quoting
State v, Rauch, 94 Hawai'i 315, 322, 13 P.3d 324, 331 (2000)
(brackets and ellipsis points in original).
B. Questions of Constitutional Law
we answer questions of constitutional law ‘by:
‘exercising cur own independent. judgnent based on the facts
Gf the case,’” snd, thus, questions of constitutional law
are reviewed on appeal “under the “right/wrong" standard.”
Stece vs Jenkins, 99 Hewai'i 87, 100, 997 F.2d 13, 26 (2000)
Teitations omitted) «
“(. continued!
sunca note I, elthcugh st did not state the basis for the mandatory minimum
femme either’ at the sentencing nearing cr in the Judgment.
°
+*# FOR PUBLICATION **
Kaua, 102 Hawai'i at 7, 72 P.3d at 479 (quoting State v. Aplaca,
96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001).
c.
Statutory Interpretation
“(t]he interpretation of a statute...
ks a question of law reviewable de novo." uate
‘EcBrses, 04 Hawal't 2, 20, 928 P.2d 843, 952,
(7986) “(quoting State v. Camara, $1 wawas's 324,
328, 916 F.2d 1225, 1230 (1996) (citations
onitced)).” See alao 0
‘State v. Tovenura,
Havas €, 16, 904 F.2d 855; 505 i988) seat
Higa, "79 Hawal't i, 3,
: 76 hawaii 360, 365,
‘Giostiy" state vs Makita,
678 P.26' 695, 708 (1994).
Gray vi Administrative Director of the court, 64 Hawai'i
Tie, Ii, S31 P.20 560, S8€ 11997) (some brackets added and
sont in original). Set also State v. Soto, nt 229,
23, 933 F.20 66, 73 (1997). Furthermore, our statutory
Construction ie guided by established rul
‘When construing 2 ststute, our foremost obligation is
fo ascertain and give effect co the intention of the
legislature, which 1s to be obtained primarily from
the language contained in the statute itself. And we
must read statutory language in the context of the
Entire statute and construe it in a manner consistent
sath tes purpose
‘iben there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression Used
ina statute, an ambiguity exists.
Im construing an ambiguous statute, “(t}he
meaning of the ambiguous words nay be sought by
Seanining the context, wich wich the ambiguous words,
Phrases, and sentences may be compared, in order to
Secereain their true meaning.” BRS § 1-15(1)
((2993)]. Moreover, the courts may resort to
extrinole aids in determining legislative intent. One
Svense is the use of legislative history as an
Interpretive tool.
Gray, 64 Bawas't ae 168, 932 P.2d at 590 (quoting state vy,
Tovomura, 60 Hawai 6, 16-19, 904 P.2d 893, 903-04 (1995))
(brackets and ellipais points in original) '(foctnote
omitted). This court may also consider “(t]he reason and
Gpizit of the law, and the cause which induced th
legislature to enact it... to discover its true meaning
hike § 12512) (2998). "tawe dp part materia, oF upon the
Sane subject matter, shall be construed with reference to
Gach other. What is clear in one statute may be called upon
Gn aie to explain wat is doubtful in another.” HRS § 1-16
(2383)
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, 91
20
s#* FOR PUBLICATION ***
Hawai'i 319, 327, 984 P.2d 78, 86 (1999) (quoting State v
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, @7 Hawai'i 217, 229-30, 953 P.2d 1315, 1327-28
(2998)))))9).
Koch argues that, based on the plain language of HRS
§ 706-622.5, see supra note 5, the circuit court was required to
sentence him to probation as a first-time drug offender, rather
than pursuant to HRS § 712-1243(3), see supra note 1. Koch
maintains that he “met all the qualifications for, and did not
suffer any of the disqualifications from, sentencing under HRS
§ 706-622.51,]” inasmuch as all of his convictions constituted
offenses under part IV of chapter 712 or offenses involving
possession or use of drug paraphernalia. (Emphases in original).
Koch avers that the circuit court's convictions, entered
simultaneously on November 24, 2003, “constituted his first
convictions for drug and paraphernalia possession{,]” and that,
as such, the circuit “court’s sole duty was to effectuate the
mandatory sentencing provisions of HRS § 706-622.5: probation
with mandatory drug treatment.” Koch insists that the circuit
court’s sentences to terms of imprisonment are, therefore,
illegal. We disagri
a
*** FOR PUBLICATION +#*
‘The circuit court indicated that it did not believe
1 upon,
‘that Koch was “eligible for sentencing under Act 161” b
its interpretation from the record that Koch “was not just using,
but was dealing.” Nevertheless, the prosecution argues that Koch
was not 2 first-time drug offender at the time of sentencing, a
fact that rendered him ineligible for sentencing under HRS § 706
622.5. The prosecution emphasizes that Koch “does not explain
+ +. why drug offenses committed on two different dates, nine
months apart, and under two different indictments leading to two
different determinations of guilt should be considered to be a
Koch does not respond to the
single first-time drug offen
prosecution's position, but merely insists that the only correct
sentence was to probation pursuant to the plain language of HRS
§ 706-622.5.
Separate and apart from Koch’s argunent on appeal and
the prosecution's rebuttal, we note that Act 161, which created
HRS § 706-622.5, did not become effective until July 1, 2002.
See 2002 Haw. Sess. L. Act 161, $§ 3 and 12 at 572, 575.
1 4s whether Koch was
Therefore, the threshold question on appt
entitled to sentencing under the provisions of HRS § 706-622.5,
which were in effect at the time of his sentencing but not on the
date that he committed the offenses of which he was convicted in
connection with Cr. No. 02-1-0558(1), see supra section I.
Me note, by way of introduction, that no new punitive
measure may be applied £0 a crine already consummated, where
Tee application would work to the detrinent or material
disadvantage of the wrongdoer. Such legislation would be ex
ost facto law as to the offender. 7
S01 v.S. 387, 57 S.ct. 797, £1 1.84. 162 (1937). See alse
State vi Bund, 50 law, 351, 440 F.2d 528 (1966).
State v. Von Geldern, 64 Haw. 210, 212, 638 P.2d 319, 321 (1981).
a2
+64 FOR PUBLICATION *#*
In Yon Geldern, this court held that an amendment to
the mandatory minimum sentencing statute, which provided
sentencing courts with discretionary authority to impose a lesser
mandatory minimum sentence than that statutorily prescribed where
“strong mitigating circumstances” were found to warrant such
action, applied retrospectively to sentences imposed prior to the
effective date of the amendment because the provisions were
ameliorative and remedial. The defendant in Yon Geldern had been
sentenced prior to the effective date of Act 284, which amended
HRS § 706-606.5, the mandatory minimum sentencing statute. This
court nonetheless concluded that the judgment and sentence of the
trial court had not become final, inasmuch as his appeal was
pending, and held that “the Act’s ameliorative provisions were
still capable of application in (the defendant's] case.” 64 Haw.
at 215, 638 P.2d at 323.
Act 284, . , is aneliorative in its intent and effect end
Tes application in this case would neither be detrimental
hor materially disedvantageous to the defendant. Te
Duthorizes the trial court to impose less than the mandatory
Rinimin sentence of imprisonment where strong mitigating
Eiscunstances are shown to exist. It is not, therefore, ex
post facto lew, That being the case, the only possible
Ebstecie to its application in this Case would be HRS § 1-3
{(1993)) wach provides that "(nJo law has any retrospective
Sheraton, unless stherwise expressed or obviously
Sheended.*
Id. This court further noted that
RS § 1-3 {2 only a rule of statutory construction and where
the legisietive intent may be ascertained, it is no longer
dete And while st ie true that there is nothing
{nthe language of Act 264 to indicate, one wa
ctners that its ameliorative provisions may
Fetrospectively, we think that such application where they
ey still be applied was obviously the intent of the
Legisiature
Past legislative conduct has dencnstrated an
inclinstien on the part of the legislature to vest in the
Sentencing court the discretionary authority to apply the
ii penal Code's more enlightened sentencing provisions
3
*## FOR PUBLICATION ***
where such application would further the penological
objectives of the statute.
Id. at 214, 638 P.2d at 323.
This court likewise held in State v. Nakata, 76 Hawai'l
360, 375, 878 P.2d 699, 715 (1994), that
[the Yon Geldern) constitutional test. The
Act reduees, not increases, possible punishment. Te reduces
the maximum sentence from thirty to five days and eliminates
a provision for an ignition interlock system... «Thus,
Fetroactive application of HRS § 291-4, as amended by Act
126, 1s clearly not prohibited,
See also Roxas v, Marco, 69 Hawai'i 91, 156, 969 P.2d 1209, 1274
(1998) (citing Yon Geldern with approval and noting that “we
believe that HRS § 636-16 should be afforded retroactive effect
‘Act 128 pas
because it is a remedial statute designed to clarify and
encourage the exercise of judicial discretion in the award of
prejudgment interest”).
Furthermore, “[t]here has been ‘an inclination on the
part of the legislature to vest in the sentencing court the
discretionary authority to apply the Hawaii Penal Code’s more
enlightened sentencing provisions where such application would
further the penological objectives of the statute.’” State va
Gamulo, 69 Haw. 424, 425, 744 P.2d 1208, 1209 (1987) (quoting Yon
Geldern, 64 at 214, 638 P.2d at 322). See also State v. Grav, 77
Hawai'i 476, 479, 888 P.2d 376, 380 (App. 1995), overruled on
other grounds by State v. Bolosan, 78 Hawai'i 66, 890 P.2d 673
(1995) (“The basis for the decision in Yon Geldern was the
reasonable assumption that, unless expressly stated otherwise,
the legislature always intends its new flexible sentencing
alternatives to apply retroactively. That precedent applies to
this case.”).
as
+## FOR PUBLICATION ***
In the present matter, Koch committed the offenses
underlying Cr. No. 02-1-0558(1) on April 12, 2002. Act 161
became effective on July 1, 2002. Koch was sentenced on November
21, 2003. Analytically, the reasoning of the foregoing cases
extends to the application of HRS § 706-622.5 to Koch’s
sentencing in Cr. No. 02-1-0558(1). Similarly to Act 284 at
issue in Yon Geldern, HRS § 706-622.5 is “ameliorative in its
intent and effect and its application in this case would neither
be detrimental nor materially disadvantageous to the defendant.”
64 Haw. at 213, 638 P.2d at 322. “Despite the presumption
against retrospective laws, we have repeatedly validated the
retrospective application of several remedial statutes on the
basis of express or implied legislative intent.” Id, at 216, 638
P.2d at 323. Accordingly, retrospective application of HRS
§ 706-622.5, as established by Act 161, is “clearly not
prohibited.” Nakata, 76 Hawai" at 375, 878 P.2d at 715.7
+ our holding that HRS § 706-622.5 has retrospective application to
sentencing that occurs after the statute’s July 1, 2002 effective date,
Because of its ameliorative intent and effect, 48’ consonant with our decisions
in State y. Snéeh, 103 Hawel't 228, 61 P.3d 408 (2003), and State va Walker,
ioe Revert 1, 100 P.34 $98 (2004). In Smith, we held’ that, pursuant to their
plein language, the repeat offender statute, HRS § 706-é06.5, trumps the
Piree-tine drug offender statute, HRS § 706-622.5. More specifically, we held
thet “in all eeses in wndch HRS § 706-606.5 is applicable, including those in
Which e defendant would otherwise be eligible for probation under HRS
3°566-€22.5; the chreuit courte must sentence defendants pursuant to the
Brovisions of BRS § 706-606.5." 103 Hawai'i at 234, 81 P.ad at 41d. In
soe evaluated the effects of Act 44s anendnents to HRS § 706-622.5 and
held that
bly ite plain language, Act 44 prospectively permits
Gkeetioh te sentencing courts confronted with confiiets between
fins $5 70€-c06.5 and 706-€22.5 than they previcusly possessed
Thus, based on the legislative intent reflected in Act 44, the
Shet 161" version of HRS § 706-622.5, uncer which Walker was
sentenced, did not trunp the repeat offender statute.
106 Hawai's at 10, 300 F.3d at 604. (Emphasis in original). In the present
matter, we are simply extending retrospective application of the “Act 161”
(continue
as
FOR PUBLICATION **#
Thus, having determined that HRS § 706-622.5 was part
of the statutory sentencing arsenal available to the circuit
court with respect to the offenses that Koch committed on or
about April 12, 2002, in connection with Cr. No. 02-1-0558(1),
the question becomes whether, as of November 21, 2003, Koch was a
“£ixst-time drug offender” so as to qualify for sentencing under
HRS § 706-622.5. We hold that Koch did not qualify as a first-
time drug offender, and, therefore, that the circuit court did
not err in sentencing him pursuant to HRS § 712-1243(3).
In State v, Rodrigues, 68 Haw. 124, 706 P.2d 1293
(1985), this court held that two offenses committed a month apart
but sentenced on the same day constituted separate convictions
for purposes of the repeat offender statute, HRS $ 706-606.5.
(Supp. 1984). The defendant, Rodrigues, had argued on appeal
that, for the purposes of the repeat offender statute, his second
and third convictions could only be counted as one conviction by
virtue of his being sentenced for the two offenses on the same
day. 68 Haw. at 128, 706 P.2d at 1296. Following a discussion
of the term “conviction,” this court concluded that, for the
purposes of HRS § 706-606.5, “a mere finding of guilt by a jury
or a court does not constitute a ‘conviction’ within the meaning
of the section; a judgment entered upon the finding does.” 68
Haw. at 132, 706 P.2d at 1299. Nevertheless, this court
clarified that “[t]hough we have decided a ‘conviction’ for the
purposes of HRS § 706-606.5 refers to the judgment rather than
(continues)
version of RS § 70€-622.5 to cases in which it would otherwise apply.
a6
‘444 FOR PUBLICATION
the finding of guilt, whether two sentences pronounced on the
same day for separate offenses charged in two indictments
constitute @ single ‘conviction’ renains for decision.” Id. We
therefore concluded the following:
Here, the two convictions Rodrigues would have us consider
as one were for offenses comitted a nonth apart, charged in
Separate indictments, and for which findings of quilt were
enteres arate proceedings... . We see no basis for
S'paling th olgeents entered on Decesber 10, 1979
oniy Fe ‘single conviction for purpost
Sentence enhancement pursuant to the repeat of!
68 Haw. at 133, 706 P.2d at 1299.
the following table sets forth the history of Koch’s
drug offenses at issue in the present matter:
Date plea
pate Date entered oF pate
criminal offense was indictment verdict pate Sudgment
somitted filed rstumed sentenced filed
oa-i-osse(1) 04/12/02 t0/t4/o2_——7/18/03, 31/21/03 11/24/03
Gury
verdict)
os-t-0262(1) 02/27/03 06/09/03 10/27/03, 1/21/03. 11/24/03
(no. contest,
plea)
Similarly to Rodrigues, the circuit court imposed two
sentences upon Koch in distinct criminal prosecutions on the same
date, November 21, 2003. The sentences and judgments related to
separate offenses that Koch had committed ten months apart, which
were charged in two separate indictments, and for which findings
of guilt were entered in separate proceedings.
At issue in the present matter are two distinct
criminal proceedings in which sentencing was imposed on the sane
day. On September 17, 2003, sentencing in Cr. No. 02~1-0558(1)
was continued until after trial in Cr. No. 03-1-0261(1), which
7
'* FOR PUBLICATION ***
was scheduled for October 27, 2003. Although it is unclear from
the record whether Koch moved to continue sentencing in Cr. No.
02-1-0558(1), it appears that the circuit court postponed
sentencing at Koch’s request, given the sole notation that “no
objection by the State” was registered.
Nonetheless, at the time of sentencing in 03-1-0271(1),
the benefits of first-time offender sentencing under HRS § 706-
622.5 had been wiped out for Koch. Sentencing Koch in succession
on the same date did not transform the two separate adjudications
of guilt into a single criminal offense, thereby rendering him a
first-time drug offender. Thus, “[wle
eno basis for a ruling
that the judgments entered on [Novenber 21, 2003] only resulted
in a single conviction for purposes of” the first-time drug
offender sentencing. See Rodrigues, 68 Haw. at 133, 706 P.2d at
1299, Simply stated, on November 21, 2003, Koch was a second-
time drug offender whom the circuit court was required to
sentence pursuant to the terms of HRS § 712-1243(3).
Because Koch was not a first-time offender within the
meaning of HRS § 706-622.5, he was not entitled to the benefits
of first-time drug offender sentencing. Therefore, it matters
not what the circuit court’s thought processes were with respect
to why it believed Koch to be ineligible for sentencing under HRS
§ 706-622.5, inasmuch as the circuit court was required to
sentence him pursuant to HRS § 712-1243(3) in both criminal
numbers. “In any event, . . . the trial court reached the right
result for the wrong reasons.” State v. Propios, 76 Hawai'i 474,
486, 679 P.2d 1057, 1069 (1994). See also Lee v. Heftel, 61
Hawai'i 1, 5 n.2, 911 P.2d 721, 725 n.2 (1996); State v. Pinero,
1s
*#* FOR PUBLICATION ***
75 Haw. 282, 290, @59 P.2d 1369, 1373 (1993). Accordingly, we
hold that the circuit court did not err in sentencing Koch
purauant to HRS § 712~1243(3) in both criminal nunbs
B. The Circuit Court Erred in Imposing Two Maximum
Mandatory Ninimun Terms Of Imprisonment Based Upon
Conduct For which Koch Was Found Not Guilty.
Koch argues that the circuit court’s “conclusion that
[he] vas dealing drugs and therefore disqualified from sentencing
under HRS § 706-622.5 violated [his] constitutional rights to due
process because it completely disregarded the specific offenses
of which [he] was convicted{.]" Inasmuch as we have determined
that Koch did not qualify for sentencing under HRS § 706-622.5,
Koch's argument that the circuit court erred in failing to
sentence him as a first-time offender is without merit.
Nevertheless, we agree that the circuit court erred in factoring
its belief that Koch was dealing drugs into its imposition of the
two maximum statutorily prescribed mandatory minimum terms of
imprisonment of two years and six months, see supra note 1.
“In determining the particular sentence to be imposed,
the court must consider a variety of factors [enumerated in HRS
§ 706-606 [(1993)"]] in exercising its discretion in fitting the
+ Rs § 706-606 prove
Factors to be considered in imposing @ sentence. The court,
in determining the particular sentence to be imposed, shall
consider!
(d) me nature and cizcunstances of the offense and the
history and characteristics of the defendant;
(2) The nead for the sentence inpos
ia) “To reflect the seriousness of the offense, to
promote respect for lew, and to provide just
Punishaent for the offense;
() To afford adequate deterrence to criminal
(continued...)
as
‘*## FOR PUBLICATION *#*
punishment to the crime ‘as well as the needs of the individual
defendant and the community.’ State v. Nunes, 72 Hawai'i $21,
524-25, 824 P.24 637, 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).
We recently held in State v. Vellina, 106 Hawai'i 441,
106 P.3d 364 (2005), that consecutive sentencing based solely
upon the deputy prosecuting attorney's unsubstantiated allegation
of uncharged misconduct, to wit, that Vellina sold the firearms
he had stolen to a drug dealer for drugs, constituted plain
In a manner analogous to Yellina, in sentencing Koch,
the circuit court assumed that Koch had engaged in unlawful
conduct of which he had been expressly acquitted. The circuit
court specifically noted that it believed Koch had been dealing
drugs, even though the offenses before it were not “dealing
charges.” See supra section I.
We have long considered mandatory minimum terms of
Amprisonment to be enhanced sentences subject to the full panoply
of constitutional protection:
"1. continued)
conduct
(e) To'protect the public from further crines of the
defendant; and
(a) To provide the defendant with needed educational
of tocationsl training, sedical care, or other
Correctional treatment in the most effective
(3) The kinds of sentences available and
(4) The need to evola unwarranted sentence disparities
azong defendants with similar records who have been
found guilty of similar conduct.
20
‘*** FOR PUBLICATION *#*
We have previously held that there is no substantive
Gifference between the procedures required for the
{nposition cf s mandatory minimum term of imprisonment and
an extended term of imprisonment. See (State v. IRobinson,
BE Mawes {304,] 215,922 P-24 (388,] 369 (996)] (TDLe
Court has not deemed ‘the characterization of a sentence 3
extenand’ oF “enhanced” determinative of the procedures
gequired.")- =
lie reaffirm that, for constitutional purpo
there is'no distinction between extended and mandatory
ninimum enhanced sentencing. Both constrain the discretion
Bf the sentencing judge and fix the term of incarceration
Ynposed upon the defendant ase result of the conviction.
State v. Tafova, 91 Hawai'i 261, 274, 982 P.2d 890, 903 (1999).
Notwithstanding that the circuit court had the
authority to sentence Koch pursuant to the terms of HRS § 712~
1243(3), it did not have the discretion to consider alleged
conduct of which Koch was acquitted in sentencing him. As .such,
it appears that the circuit “court clearly exceeded the bounds of
reason.” Kaua, 102 Hawai'i at 7, 72 P.3d at 479 (citations
omitted) «
Inasmuch as there is a possibility that the circuit
court's imposition of the maximum mandatory minimum terms allowed
by HRS § 712-1243(3) -- two years and six months -- was a
function of its belief that Koch was dealing drugs, we must
vacate the circuit court’s imposition of the two-year-six-month
mandatory minimum terms in both criminal numbers and remand this
matter for a redetermination of the appropriate mandatory minimum
terns.
IV. CONCLUSION
In light of the foregoing analysis, we affirm the
circuit court's indeterminate maximun prison sentences imposed
pursuant to HRS § 712-1243(3), vacate the mandatory minimum terms
2
FOR PUBLICATION +4
of imprisonment of two years and six months in both Cr. No. 02-1-
0558 (1) and Cr. No. 03-1-0271(1), and remand for a
redetermination of the appropriate mandatory minimum terns
I concur in the result only.
pom
on the briefs:
Artemio C. Baxa,
Deputy Prosecuting Attorney,
for the plaintiff-appellee
State of Hawai'i
Phyllis J. Hironaka,
Beputy’ Public Defender,
for the defendant-appeilant
John James Caleb Koch
22
|
f7228fdb-5387-4242-98d4-2f932370d4dc | Phoenix UPVC Building Supply, Inc. v. Yamada | hawaii | Hawaii Supreme Court | Law LIBRARY
*** NOT FOR PUBLICATION ***
No. 24586
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
PHOENIX UPVC BUILDING SUPPLY, INC., Plaintiff-Appellant
STEPHEN K. YAMADA, Defendant-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 98-2181) :
‘SUMMARY DISPOSITION ORDER 5
(By: Moon, C.J., Levinson, Nakayama, and Duffy, “JJ.
and Circuit Judge Wilson, in place of Acoba, J., recused)
Plaintiff-appellant Phoenix UPVC Building Supply, Inc.
(Phoenix) appeals from the September 13, 2001 post-Jjudgment order
of the circuit court of the first circuit, the Honorable
Victoria S. Marks presiding, denying Phoenix’s motion for the
appointment of a receiver to assist in collecting a judgment
against defendant-appellee Stephen K. Yamada (Yamada). On
appeal, Phoenix argues that the circuit court erred in denying
its request for the appointment of a receiver based on cost and
lack of authority to grant the motion.
Upon carefully reviewing the record and the briefs
submitted and having given due consideration to the issues raised
and arguments advanced, we hold that the circuit court's
jurisdiction to appoint a receiver rested on Phoenix alleging and
Proving, by specific evidence, that Yamada’s attorneys’ fees were
in danger of being lost, removed, or materially injured after
attorney Joseph Gleason took over Yanada’s cases. See Qvama v..
Stuart, 22 Haw. 693, 698-699 (Hawai'i Terr. 1915). See also
Cohen v. Herbert, 186 Cal. App. 2d 488, 495, 8 Cal. Rptr. 922,
*** NOT FOR PUBLICATION ***
926-927 (Cal. App. 2d Dist. 1960). Inasmuch as Phoenix did not
present any evidence establishing that Yamada’s accrued
attorneys’ fees were in danger of neglect, waste or misconduct,
or educate the circuit court as to its exact value, we cannot say
that the circuit court “clearly exceeded the bounds of reason or
disregarded rules or principles of law or practice” to the
substantial detriment of Phoenix when it denied Phoenix’s motion
to appoint a receiver “based on the cost of using the receiver
procedure and a lack of authority to grant this motion.” See The
cal. Feed wv. bs co. , 10 Haw.
208, 212 (Hawai'i Rep. 1896); Amfac. ve W hi
Inv. Cou, 74 Haw. 85, 114, 839 P.2d 10, 26 (1992). Therefore,
HP 18 HEREBY ORDERED that the circuit court's
September 13, 2001 post-judgent order, from which the appeal is
taken, is affirmed.
DATED: Honolulu, Hawai'i, April 20, 2005.
on the briefs: WT aaa
Arnold T. Phillips I :
for plaintiff-appellant SCG
Phoenix UPVC Building
Supply, Ine. Niele uals orbs
stephen K. Yamada,
defendant-appellee, Yan «Basen he
pro se, no answering
|
0fb46537-0712-407e-a393-4412b41c4213 | State v. Maave | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
wo, 28082
IN THE SUPREME COURT OF THE STATE OF HAWAT'
Hd 91 SAW S802
STATE OF HAWAI'I, Plaintiff-Appellee,
ae
ROMAN MAAVE, Defendant-Appellant,
and
IMELDA KWAN, Defendant.
APPEAL FROM THE FIRST CIRCUIT COURT
(cR. NO, 01-1-1887)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Defendant-appellant Roman Maave (Naave) appeals from
the March 18, 2002 judgment of the circuit court of the first
circuit, the Honorable Kazen $.8. Ahn presiding, convicting Maave
of and sentencing him for promoting a dangerous drug in the
second degree, in violation of Hawai'i Revised Statutes (HRS)
§ 712-1242(1) (e) (1993)! (Counts T and 11).
on appeal, Maave argues that: (1) the circuit court
lacked subject matter jurisdiction over the proceeding because
(a) the complaint failed to charge him as an accomplice and was
therefore insufficient, and (b) the evidence adduced at the
preliminary hearing did not establish probable cause to commit
the case for trial: (2) the circuit court plainly erred in
instructing the jury, inasmuch as the jury instructions
(a) failed to specity that Maave’s Liability as an accomplice was
predicated upon the jury's determination that Maave’s principal
+ RS § 722-1242(1) (c) provides: “A person commits the offense of
promoting » dangerous drug in the second degree if the person knowingly =
{e]istributes any dangerous drug in any ancunt.”
aaa
NOT FOR PUBLICATION ***
had committed the offenses for which Maave was derivatively
Liable, (b) failed to provide the jury with a legal definition of
the term “intention” when instructing them on the requisite state
of mind to establish accomplice liability, (c) did not specify
the requisite state of mind to establish each “element” of
accomplice liability, and (d) instructed the jury that Maave
could be convicted as a principal absent any evidence that he
committed the charged offenses in that capacity? (3) the circuit
court plainly erred in permitting a prosecution witness to
testify to events recorded on a videotape subsequently shown to
the jury, inasmuch as the witness’s testimony (a) was
inadmissible “opinion” evidence, (b) violated the “best evidence”
rule, and (c) was unfairly prejudicial; (4) substantial evidence
did not support Maave's convictions; and (5) the circuit court
abused its discretion in denying Maave’s motion for mistrial
because (a) the testimony of a prosecution witness referenced
inadmissible evidence, (b) the prosecutor's cross-examination of
Maave purposefully elicited excluded evidence of prior conduct,
and (c) the prosecutor engaged in multiple instances of
prosecutorial misconduct.
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:
(1) the circuit court had subject matter jurisdiction over the
proceeding because (a) Maave need not have been charged as an
accomplice for the complaint to be sufficient, see State v,
Eukusaku, 85 Hawai'i 462, 486, 946 P.2d 32, 56 (1997), and
(b) whether the district court abused its discretion in
committing the cage to circuit court was moot in light of Maave’s
*** NOT FOR PUBLICATION ***
valid convictions, see In re Does, 102 Hawai'i 75, 78, 73 P.3d
29, 32 (2003); (2) the circuit court did not plainly err in
instructing the jury, inasmuch as (a) the accomplice liability
instruction should have informed the jury that it was required to
find that Kwan had committed the offenses for which Maave was
derivatively liable, see ukusaku, 85 Hawai'i at 488, 946 P.2d at
56; State v. Vip, 92 Hawai'i 98, 113, 987 P.2d 996, 1011 (App.
1999), but the error was not plain because the evidence that Kwan
was Naave’s principal was overwhelming and uncontroverted, see
Johnson vs United States, 520 U.S. 461, 469-470 (1997), (b) the
circuit court did not plainly err in failing to define the term
“intent” in the accomplice ability instruction, as the ordinary
understanding of the term, in the context of the instruction at
issue, did not differ substantially from the statutory definition
of “intent,” see HRS § 702-206(1) (1993), such that omitting the
statutory definition from the jury's instructions could not have
affected their deliberations,”
jard, we note that the following proposed instruction
was withdrawn by mtual agreement:
(COURT'S INSTRUCTION NO. 22
[A person acts intentionally with respect to his
‘conduct hhen it is his conscious ebject to engage in
conduct.
person acts intentionally ith respect to attendant
circunctances when he ie avare of the existence of such
Circunstances or believes of hopes that they exist.
‘Siperson acts intentionally ith respect to a result
of nis conduct when it is his conscious object to cause such
Secsuie.
such
Tt should further be noted that defense counsel’s discussion of
accomplice Lisbility during closing arguments crystalized, rather than
Cbfuscated, the correct meaning of “intent” as used in the jury's
Snstructions. As defense counsel noted
Now, the law in this case =~ and the Judge has gone
over the law and you have a copy of it, and as the state has
SUeietes, ‘that Mee Maave was not the principal. He was not
(cent sned.
* NOT FOR PUBLICATION ***
see, 2.94, Grieco v. People, 19 P.3d 1, 9-10 (Colo. 2001) (en
banc); State v, Sinclair, 500 A.2d 539, 543-544 (Conn. 1985);
7 sscontinued)
‘the person who actually sold the drugs. He was not the
Person who distributed drugs, the State is going under an
jccomplice liability theory
What is accomplice Liability? The Court tolé you that
ere presence at the scene of an offense or knowledge that
an offense is being committed is not enough. That's tru
Gost because Ne. Msave ie there in Chinatown standing next
to Imelda Kwan, that's not enough. Just because he knew
that she was selling drugs, that’s not enough. There has to
be more: “And, nenbers of the Jury, accomplice Liability has
to be proof beyond a reasonable dove.
What the State has to show you is that Roman planned
or participated in the comission of the offense. - . with
thei intent! te promote of facilitace the offense, ‘He would
fan accomplice in that case. What are the inportant words
Roce? “Plane or participates.” “And in this caver che
charge is distribution.
Is there any evidence of 2 plan? Did anybody hear
anything about conepirscy? Dia anybody hear anything about
a conversation between Mr. Maave and Me. fwan that he was
Planning distribution of the drugs? Is there any evidence
Sea plan? None whatscever, Soy guess what? No plan.
How about participation? Now, the participation has
to be in distribution, because that’s what the offense is,
distribution of droge.
Bo" you'have any evidence that Mr. Naave sold any
druge? Noy none. Did he ever talk to the police officers?
No." Did he ever hand the police officers anything? No.
How sbout transfer? Oia ne ever nave Ris hands on
those drugs? Old he] ever give those drugs to the police
officer? Did any of the officers testify that he had the
Gruge in his nande? Noy ho transfer.
Prescribe, that's simple. Nobody was prescribing, no
one’s a doctor here, no one’s writing prescription:
Did'ne give anything to the police officers? No. Did
he deliver the drug to the police officers, did he have his
hands on those druge? No.
Was it Me. Maave on that videotape placing the drugs
down onthe ground for the officer to come and get it? Nas
itr. Maave leaving the Grugs for the police officer? No,
Lt wag Me. Ran.
Was it Mr. Maave bartering with these police officers
‘as they cane down and nade eye-contact with "= at least,
Fenenber?... ., Tt was Ne. Kwan, not ME. Maave. So who
ade the bertering or exchenge? All of this was Ms. Kwan,
hot Mr. Maeve. Did he offer or agree to do the sane with
any of ‘these people? No
Participation and distribution? to. Mere presence at
the scene of an offense or knowledge that ‘en offense 12
being committed is not encugh without the planning and the
Participation, and the proof of that beyond a reascnable
oust.
*** NOT FOR PUBLICATION ***
(c) the court did not err in identifying the state of mind
component requisite to accomplice liability, see State v, Soares,
72 Haw. 278, 262, 815 P.2d 428, 430 (1991); and (d) while the
principal liability instructions were unwarranted by the
evidence, cf, State v. Haanic, 94 Hawai'i 405, 407, 16 P.3d 246,
248 (2001); State v. Timoteo, 87 Hawai'i 108, 117, 952 P.2d 865,
874 (1997); State v. Palisbo, 93 Hawai'i 344, 355, 3 P.3d 510,
521 (App. 2000), the court’s error was not plain because the
conceptual basis for Maave’s liability was never disputed;
(3) the circuit court did not err in permitting a prosecution
witness to testify to events recorded on a videotape subsequently
shown to the jury, inasmuch as (a) the testimony was based on the
witness’s contemporaneous observation of the recorded events and
was therefore admissible es a lay witness's opinion, see Hawai'i
Rules of Evidence (HRE) Rule 701 (1993); State v. Jenkins, 93
Hawas't 87, 105, 997 P.2d 13, 31 (2000); (b) the “best evidence”
rule was not applicable because the testimony was not admitted to
prove the videctape’s contents, see HRE Rule 1002 & cmt. (1993),
and (c) the circuit court did not abuse its discretion in
balancing the testimony’s probative value and prejudicial effect,
see HRE Rule 403 (1993); State v. Haili, 103 Hawai'i 89, 101, 79
P.3d 1263, 1275 (2003); (4) substantial evidence supported
Maave's convictions, see State v. Martinez, 101 Hawai'i 332, 338-
339, 68 P.3d 606, 612-613 (2003); and (5) the circuit court did
not abuse its discretion in denying Maave’s motion for mistrial,
inasmuch as the incidents Maave complains of were either not
prosecutorial misconduct or were otherwise harmless beyond a
reasonable doubt, see State v. Hauge, 103 Hawai'i 38, 47, 79 P.3d
131, 140 (2003); State v, Cordeiro, 99 Hawai'i 390, 425-426, 56
*** NOT FOR PUBLICATION ***
P.3d 692, 727-728 (2002); State v. Klinge, 92 Hawai'i 577, 592-
593, 994 P.2d $09, 524-525 (2000); State v. Loa, 63 Hawai'i 335,
353, 926 P.2d 1258, 1276 (1996); State v, Kahinu, 53 Haw. 536,
548-550, 498 P.2d 635, 643-644 (1972). Therefore,
IT IS HEREBY ORDERED that the judgment from which the
appeal is taken is affirmed.
DATED: Honolulu, Hawai'i, August 16, 2005.
on the briefs:
James S. Gifford,
Deputy Public Defender,
for the defendant-appeilant SecBlernem
Roman Maave
Dona Fudo, Di ON ane
Deputy Prosecuting Attorney,
for the plaintiff-appellee
State of Hawai'i
Gorn. Dud tr
|
f28e7f07-2d44-4f03-8a54-ec9c60a888df | Nepage-Fontes v. Nepage | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION ***
No. 27034
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
Hd 02 da |
CAROL L. NEPAGE-FONTES, Petitioner-Appellant
aay
JOHN E, NEPAGE, Respondent-Appellee
OO _ ae
APPEAL FROM THE FIRST CIRCUIT COURT
(PRUST NO. 00-21-0068)
*
z
6
onpe AL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that the November
29, 2004 judgment is not a final judgment closing Trust No. 00-1-
0069 entered pursuant to HPR 34(c) and no final judgment closing
‘Trust No. 00-1-0069 has been entered. Absent certification of
‘the November 29, 2004 judgment and the May 16, 2002 judgment in
the manner provided for by HRCP S4(b) or entry of a final
Judgment closing Trust No. 00-1-0069, the appeal of the
November 29, 2004 judgment and the May 16, 2002 judgment is
Premature and we lack jurisdiction. See HPR 34(a), (c) and (d);
HRS § 641-1(a). Therefore,
I IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, April20, 2005.
Gr.
|
2b4fb603-f57b-401e-b9a0-355c170740ad | Wire Products, Inc. v. Ku Lana Construction Corp. | hawaii | Hawaii Supreme Court |
no. 24880
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
WIRE PRODUCTS, INC., Plaintiff-Appellee
KU LANA CONSTRUCTION CORP.,
Defendant and Third-Party Plaintiff-Appellant
and
M.A. MORTENSON COMPANY, Defendant-Appell
and
MASTER BUILDERS, INC., Third-Party Defendant-Appellee
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 98-5293)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of appellant’s motion to dismiss
appeal, the papers in support and the record,
IT IS HEREBY ORDERED that the motion to dismiss appeal
is granted and this appeal is dismissed. The parties shall bi
their own costs.
DATED: Honolulu, Hawai"i, April 12, 2005.
or
Mah nuse—
Peisetes Ce eartbeey love.
aa
Care Sretigits «
|
91b495a2-3890-4362-bb34-ce506ecc30ee | State v. Kido | hawaii | Hawaii Supreme Court | LAW LIBRARY.
Plaintiff-Appellee-Respondent,
omnes
cron 7. 100, uy
cetendane Arpetiant Petitioner.
No, 26865
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, 7 8
a: &
s
=
ye
01-1-0265)
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO.
(By: Levinson, J., for the court")
upon consideration of the application for a writ of
certiorari filed on December 5, 2006, by the defendant-appellant-
petitioner Sydney T. Kido, the application is hereby rejected.
December 27, 2006.
DATED: Honolulu, Hawai'i,
FOR THE COURT:
STEVEN H. LEVIN:
Associate Justide
Mary Ann Barnard
for Sydney T. Kido,
defendant-appellant-
petitioner, on the application
Acoba, and Duffy, 39.
Nokayana,
Levinson,
* Considered by: Moon, C2.
|
bdd3a0fb-fc49-411c-986b-12c092cd5f8f | State v. Rossman | hawaii | Hawaii Supreme Court |
*** NOT FOR PUBLICATION
No, 26952
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
as Cr
STATE OF HAWAI'I, Plaintiff-Appellee
EARL ROSSMAN, Defendant-Appellant
APPEAL PROM THE THIRD CIRCUIT COURT
(CR. NO. 95-0245)
npr
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that (1) the
supreme 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, April 12, 2005.
HBG rae
esaatte Coombe QUT
Game Dudlige he
|
96078515-e91e-49a9-9ad0-804e126dcedc | State v. Purtell | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘### NOT FOR PUBLICATION ***
No. 25752
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
4 Sl
STATE OF HAWAI'I,
Plaintif£-Appellee-Respondent,
JOSEPH P. PURTELL, JR.»
Defendant-Appellant-Petitioner.
‘su
02:6
ee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 98-1052)
‘SUMMARY DISPOSITION ORDER
(ay: Moon, C.J., Levinson, Nakayama, JJ.; and Acoba, J.
‘Concurring separately, with whom Duffy, J., joins)
on February 23, 2005, the defendant-appellant-
petitioner Joseph P. Purtell, Jr. filed an application for writ
of certiorari, requesting that this court review the summary
disposition order (S00) of the Intermediate Court of Appeals
(Tea) in State v. Purtell, No. 25752 (January 28, 2005)
[hereinafter, “the ICA’s SD0"]. The ICA affirmed the Merch 25,
2003 findings of fact (FOFs), conclusions of law (COLs), and
order of the circuit court of the first circuit, the Honorable
Victoria $. Marks presiding, denying Purtell’s motion for
correction of illegal sentence pursuant to Hawai'i Rules of Penal
Procedure (HRPP) Rule 35.
In his application for writ of certiorari, Purtell
argues, inter alia (1) that the ICA violated the United states
Constitution by impairing his ability to contract, (2) that
‘#44 NOT FOR PUBLICATION *#*
Hawai'i Revised Statutes (HRS) §§ 605-2 (1993) and 605-14 (1993 «
Supp. 2004) do not override the constitutional right to contract,
(3) that the ICA “abused its discretion” in failing to follow
Apprendi v. New Jersey, 530 U.S. 466 (2000), and (4) that this
court must follow the decision of the United States District
court for the District of Hawai'i in Kaua v. Frank, 350 F.Supp.2d
848 (D. Haw. 2004).
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 ICA's
00, but for the reasons stated herein.
Inasmuch as “[t)here is no right to lay counsel,”
United States v. Turnbull, 888 F.2d 636, 638 (9th Cir. 1989), the
ICA did not err in affirming the circuit court's refusal to allow
Purtell’s “agent” to represent him in court. See United States
w.Tkan, 105 F.Supp.2d 608 (S.D. Texas 2000) (“Tran may not rely
on others to assist him and then disavow their work when it is
ineffectual.”). See also HRS $§ 605-2 (1993) and 605-14 (1993).
Purtell was sentenced in 1999, prior to the Supreme
Court’s 2000 Apprendi decision. In light of this court’s recent
holding in State v. Gomes, No. 26466, slip op. (May 26, 2008),
the ICA erred in reaching the merits of Purtell’s appeal from the
circuit court's denial of his HRPP Rule 35 motion, inasmuch as we
held that new rule of criminal procedure announced in Apprendi
does not apply retroactively on collateral attack. See United
States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9 Cir. 2002).
See also See In re Tatum, 233 F.3d 857, 858 (Sth Cir. 2000);
‘+ NOT FOR PUBLICATION *#*
Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000); Sepulveda
vs United States, 330 F.3d 55, 63 (1st Cir. 2003); United states
ws Sanders, 247 F.3d 139, 149-51 (4th Cir. 2001), cert. denied,
534 U.S. 1032 (2001); United States v, Moss, 252 F.3d 993, 997
(ath Cir. 2001), cert, denied, 534 U.S. 1097 (2002); and Mccoy ye
United states, 266 F.3d 1245, 1258 (11th Cir. 2001), certs
denied, 536 U.S. 906 (2002). Nonetheless, we affirm the result
reached in the ICA’s SDO on the basis that the rule in Apprendi.
does not apply retroactively on collateral attack to Purtell’s
appeal. Therefore,
IT IS HEREBY ORDERED that the ICA’s SDO is affirmed,
although on the grounds stated in this order.
DATED: Honolulu, Hawai‘, May 31, 2005.
Joseph. P. Partell, J-,
defendanc-appellant=
petitioner bea as .
Gn the weie ic Rta
Pe crrmcayare
|
68e4f7ce-7c2d-4c45-8ef3-18f877872ce1 | State v. Zerk | hawaii | Hawaii Supreme Court |
LAW LBRaRy
‘**sNOT FOR PUBLICATION***
ee
No. 26343
IN THE SUPREME COURT OF THE STATE OF HAWAT'
STATE OF HAWAI'I, Plaintiff-Appellant
81 vison
aa
FRED DOUGLAS ZERK, Defendant-Appeliee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HPD TRAFFIC NOS. 001452897 & 001452899)
(ey: Mook tees Levansany ang DUEL, 39.3
and Reobay J.) Dissenting in bart” and
concurting in Pert, With Whom Nakayama, Jey Joins)
by ies January 14, 2004 notice, Plainestt-Appelant
state of Hawai" (the prosecution) appeals from the December 18,
2002 “Findings of Fact, Conclusions of Law, and Order Granting
betendant’s Motion to Dismiss of the district court of the first
circuit (the court)! dismissing, without prejudice, Count II of
the Septenber 12, 2002 indictment charging Defendant-Appeliee
red douglas Zerk (Defendant) with Count 1, habitually driving
under the influence of intoxicating Liguor or drugs (habitval
bor), Hovat"i Revised Statutes (HRS) $§ 291-4.4(a) (2) (Supp.
2000); Count 12, driving after license suspended or revoked for
dsiving under the influence of intoxicating Liquor (suspended
License for DUI), (HRS) § 291-4.5 (Supp. 2000); and Count ITT,
driving without no-fault insurance, HRS § 431:10C-104 (no no-
' The Honorable Clarence A. Pacarro presided
‘senor FOR PUBLICATION®#*
fault).? On appeal the prosecution argues, inter alia, that “the
trial court abused its discretion when it dismissed the
indictment as the [prosecution] properly charged Defendant under
the statute that vas in effect at the time Defendant committed
the offense” and “assuming arquendo, that the indictment
incorrectly cited to HRS $ 291-4.5, the dismissal of the
indictment was improper as such alleged error was a ‘formal
defect’ that did not mislead Defendant to his prejudice.” State
¥aYouna, No. 25610, slip op. at 3-4 (Mar. 30, 2005), held that
HRS § 291-4.5 (2003 & Supp. 2000) was substantially re-enacted in
RS § 291E-62 (Supp. 2004) and is dispositive of Count 11.7
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 arguments and issues raised by the parties,
+ on October 28, 2002, the circuit court of the first circuit
dismissed the habitually driving under the influence offense charged in Count
T. "Count T'is not a subject of this appeal.
> defendant's argunents that (1) “prosecution 1s barred by the
general rule prohibiting posterepes! prosecutions,” (2) “prosecution is becred
By the plain meaning of Act 69's repeal of HRS § 291-4.5," and (3)
“prosecution is berrea because HRS § 2916-62 is not a ‘substantial re-
enactment’ of HRS § 2914.5" are addressed or subsumed in the analyses of the
hajerity and dissenting opinions in Young. Defendant further argues that
of denity," an ambiguity, if any, attendant to the
of HRS § 251-4.8 should be Feadlved in. [Defendant’ a)
favor.” However, no ambiguity is discerned in the repeal of HRS § 291-4.5.
2
‘**NOT FOR PUBLICATION*#*
XT IS HEREBY ORDERED that the court’s order with
respect to Count II is vacated, along with Count III,* and the
case remanded to the court in accordance with the order.
DATED: Honolulu, Hawai'i, April 18, 2005.
on the briefs: Ir
Mark Yuen, Deputy Prosecuting
Attorney, City £ County of :
Honolulu, for plaintiff- Bhai rcnve—
appellant.
Hae demir
R. Patrick McPherson (Law “ee
Oftice of Paul J. cunney),
for Gefendant-appellee-
Apparently the court did not specifically rule as to Count IIT,
bot dismissed the indictment in its entirety. Therefore, the court's
December i€, 2003 order, insofar as it pertains to Count TiT, is also vacated
|
18196129-810a-4ccf-bb69-140bee224896 | State v. Larkin | hawaii | Hawaii Supreme Court |
‘*** NOT FOR PUBLICATION ***
No. 27036
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'L, Plaintiff-Appellant/Cross-Appegiee
vs. Fe
oss
APPEND Foy Tae Fanst cxncurr count SBE
(eh 55. ons 9058)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
g
2
z
e
8
Upon review of the record, it appears that judgment has
not been entered in Cr. No. 01-1-1825. The appeal by defendant
shaun Larkin from the December 20, 2004 order denying the motion
to dismiss indictment as to Counts I, IT and III is an appeal of
an interlocutory order. The December 20, 2004 order was not
certified for appeal pursuant to HRS § 641-17 and is not
immediately appealable by defendant Larkin as an appellant or a
cross-appellant. See HRS § 641-11; Grattafiori v, State, 79
Hawai'i10, 13, 897 P.2d 937, 940 (1995) ("The right of appeal in
a criminal case is purely statutory and exists only when given by
MRAP 4.2(a) (3)
some constitutional or statutory provision.”)
("the defendant may file a cross-appeal . . . if the appeal is
otherwise allowed by law."). ‘Thus, we lack jurisdiction as to
defendant Larkin’s appeal. Therefore,
*** NOT FOR PUBLICATION ***
IT IS HEREBY ORDERED that the appeal by defendant Shaun
Larkin is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, April 20, 2005.
ro
MieFip Lene
en
Gane recags th
|
384230aa-c18c-48b2-9d0f-634efdd2e4d9 | In re Doe, born 12/28/87 | hawaii | Hawaii Supreme Court | UAW LIBRARY
No. 25440
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
ee
IN THE INTEREST OF JOHN DOE, Born on December 28, 1987
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-J NO. 056244)
(By: Nakayama, J., for the court!)
Petitioner-Minor-Appellant’s application for writ of
certiorari filed on March 28, 2005, is hereby denied.
DATED: Honolulu, Hawai'i, April 7, 2005.
FOR THE COURT:
Pues cei irre.
Associate Justice
Richard Naiwieha Wurdeman
for petitioner-minor-
appellant on the writ
i
r
a
considered by: Moon, C.d., Levinson, Nakayama, Acoba, and Duffy, 93.
|
315acda1-2b2d-4d8e-ba7c-d48b75da7dd6 | Estate of Mathison v. Mathison | hawaii | Hawaii Supreme Court | ‘*** NOT FOR PUBLICATION ***
No. 26730
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
ee
ESTATE OF YVONNE MARIE MATHISON, BY SPECIAL ADMINISTRATOR DAVID
KAAPU, MANUEL MARTINS, DOROTHY MARTINS, WAYNE ROBLEDO, JR., TINA
MARIE CAWAGAS,
Plaintiffs-Appellees 2
KENNETH WAYNE MATHISON,
Defendant-Appellant i
DOES 1-5, DOE CORPORATIONS 1-5, DOE PARTNERSHIPS 1-5, DOE NON-
PROFIT ORGANIZATIONS 1-5 and DOE GOVERNMENTAL AGENCIES,
Defendants.
and
MICHAEL MATHISON,
Plaintif£-Appeliee
KENNETH WAYNE MATHISON,
Defendant-Appellant
and
DOES 1-5, DOE CORPORATIONS 1-5, DOE PARTNERSHIPS 1-5, DOE NON-
PROFIT ORGANIZATIONS 1-5 and DOE GOVERNMENTAL AGENCIES,
Defendants.
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NOS. 94-0554 and 95-0621)
ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon review of the record, it appears that the claims
by the plaintiffs in consolidated Civil No. 94-0554 and Civil No.
* * * NOT FOR PUBLICATION * * *
95-0621 were resolved by summary judgment and dismissal orders
and by judgments awarding damages, but the orders and judgments
were not reduced to a single judgment resolving the claims of all
the plaintiffs in the consolidated cases. See HRCP 58; Jenkins
ws Cades Schutte Fleming 6 Wright, 76 Hawai'i 115, 119-120, 869
P.2d 1334, 1338-39 (1994) (In a multiple-claim or multiple-party
circuit court case in which all claims of all the parties have
been resolved, an appeal may be taken after entry of a judgment
that, on its face, resolves all claims of all the parties.)
Absent entry of a judgment resolving the claims of all plaintiffs
in consolidated Civil No. 94-0554 and Civil No. 95-0621, this
app
1 is premature and we lack jurisdiction. Therefore,
IT 1S HEREBY ORDERED that this app
1 is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, June 8, 2005.
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83f9a72a-f209-4d9d-8ec2-5e28f23a68b8 | Aames Funding Corporation v. Mores. S.Ct. Order of Amendment, filed 05/11/2005 [pdf]. S.Ct. Order Granting in Part and Denying in Part Appellants' Motion for Reconsideration, filed 05/11/2005 [pdf], 107 Haw. 348. | hawaii | Hawaii Supreme Court | W UBRARY
FOR PUBLICATION*#*
ee
IN THE SUPREME COURT OF THE STATE OF HAWAI'D!
qa
ee
RAMES FUNDING CORPORATION, a California ai = S
corporation, dba Aames Home Loan, Plaintiff-Appellee
vs.
PONCIANO MILLORA MORES and PATRICIA ROSETE MORES,
Defendants-Appellants
and
JOHN DOE 1-10, JANE DOES 1-10, and DOE PARTNERSHIPS,
CORPORATIONS and OTHER ENTITIES 1-20, Defendants
OO
Wo. 24758
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. NO, 1RCO1-5476)
APRIL 22, 2005
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY ACOBR, J.
Defendants-Appellants Ponciano Millora Mores and
Patricia Rosete Mores (the Moreses) appeal from the October 11,
2001 order of the district court of the first circuit (the
FOR PUBLICATION:
district court)* granting a writ of possession for property
located in Aiea, Hawai'i (the Property) in favor of Plaintiff-
Appellee Aanes Funding Corporation (Aames). The Moreses also
challenge the October 11, 2001 findings of fact and conclusions
of law, and the October 24, 2001 order of the district court
denying the Moreses’ motion to dismiss filed on October 3, 2001.
Based on the reasons set forth herein, the district
court’s October 11, 2001 and October 24, 2001 orders are
affirmed.
1.
On July 5, 2000, the Moreses entered into a residential
mortgage loan (Mortgage) with Aames in the principal amount of
$227,500 for the Property. The Mortgage was filed in the office
of the Registrar of the Land Court of the State of Hawai'i (Land
Court) as Document No. 2637478, and was the first mortgage lien
on the Property.
‘The Mortgage expressly states that the Moreses “dol]
hereby mortgage, grant and convey to [Aames], with power of sale,
the [Property].” The Mortgage also contains conditions regarding
acceleration of the loan, notice for default and, subsequent
forfeiture of the loan, and the curing of default. The Mortgage
states in relevant part:
Tf the default is not cured on or before the date specified
in the notice, (Aames], at its option, may require immediate
payzent in full of all suns secured by this Security
+ The Honorable David 1. Fong presides:
2
‘#*FOR PUBLICATION***
eee
Instrument without further demand and may_invoke the power
‘af-sale and any other reaedies permitted by applicable law.
(Emphasis added.)
on August 14, 2000, the Moreses filed a Warranty Deed
in the Land Court, executed on July 6, 2000, which conveyed the
Property to the Moreses family trust dated April 24, 1995. On
November 15, 2000, Aames mailed, inter alia, a “Notice of
Default” to the Moreses indicating that the Moreses had breached
their financial obligations under the Mortgage and owed $8,685.01
on the Mortgage as of November 15, 2000.
on January 4, 2001, Aames issued a “Notice for Non-
Judicial Foreclosure of Sale” to the Moreses. The notice
announced the sale of the Property by public auction. On April
10, 2001, a second “Notice of Non-Judicial Foreclosure Sale” was
sent to the Moreses. This notice was sent via certified mail,
specified the default, detailed the action required to cure said
default, indicated the date by which the default must be cured,
and stated that non-compliance would result in acceleration of
the mortgage sums due and in the sale of the Property.
Apparently, @ public auction of the Property was
conducted? and on July 17, 2001, Aames filed a Commissioner's
Deed in the Land Court denominated as Document No. 2722965. This
Deed was executed “in accordance with the terms of that certain
+ the April 10, 2001 “Notice of Non-Judicial Foreclosure Sa
fed that a public suction was scheduled for May 31, 2001 at 12:00 noon
Front entrance of the First Circuit Court at 177 Punchbowl Str
Honolulu, Hawai's
‘**sFOR PUBLICATION*#*
Affidavit of Exercise of Power of Sale dated June 15, 2001,
recorded in [the Land Court] as Document No. 2714670.”
on July 20, 2001, the Land Court issued Aames a
‘Transfer Certificate of Title (TCT) No. 587,098 to the Property.
‘The Moreses refused to surrender possession. On August 15, 2001,
Aames filed an action for ejectment against the Moreses in the
district court. On August 29, 2001, the Moreses mailed Aanes a
letter notifying Aames of the Moreses’ “right and option to
cancel and rescind” the Mortgage “based upon numerous federal
Truth-In-Lending Violations . . . , none the least of which was
(Aames’s] failure to deliver . . . any completed copies of the
Notice of Right to Cancel with all requisite dates filled in.”
on August 30, 2001, citing the Havai'l District Court
Rules of Civil Procedure (HDCRCE), the Moreses filed a “Rule 12.1
Joint Declaration . . . Objecting to Subject Matter Jurisdiction”
(declaration). Apparently, on August 31, 2001, the district
court conducted a return hearing, in which the Moreses appeared
pro se and entered general denials. Aanes’s ejectment action was
set for trial on October 5, 2001.
On October 3, 2001, the Moreses filed a motion to
dismiss based on (1) “lack of subject matter jurisdiction” and
(2) “lack of admissible evidence." on October 3, 2001, Aanes
responded with a memorandum in opposition.
on October 5, 2001, trial on Aames’s ejectment action
was conducted before the district court. Trial began with both
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parties stipulating to the authenticity of (1) a certified copy
of the July 17, 2001 Commissioner's Deed, (2) a certified copy of
the 2001 real property tax assessment records for the Property,
and (3) a certified copy of TCT No, 587,098. The district court
accepted all three decunents into evidence
‘anes then requested that the district court “take
judicial notice of the general denial that the (Noreses] entered
sion, {and}
in this case,
scognize . . . that they dispute poss
our right to possession of the (P]roperty[.]” The Moreses
responded to this request by orally moving to “dismiss the case
on the basis that (Aames has] not fulfilled their [sic]
requirements under law for presenting adaissible evidence.” In
this regard, the Moreses made six “offers of proof.”? The
district court accepted the Moreses’ offers of proof subject to
Aames’s objection as to the relevance of said offers.
7 The offers of proof were as follows:
[120] they did not receive the contractual required notice
of default that their loan was in default which is @
Condition precedent to the right of the lender to accelerate
the loan and to exercise the power of [i2)) they
id not receive the contractual required notice of right to
Gancel which is specified in the Mortgage as a precondition
Eo the right of (hemes) to exercise the power of sale... .
[(3)1 the requirements at the auction were that the bidders
had to have a hundred-percent deposit in advance... «
T(4)] the auction price as s hundred thousand dollars or
nore below the fair market value. -.. [(3)] they have
ever seen, they have never been presented, and this court
Jacks in the record[,] admissible evidence showing the
General Loan ledger as required by... (GE Capital
96 Hawai'i 32, 25 P34 807 (App.
Mawel’, Inc. vs Yonenaka,
2001)].- -» and [(6)] they sent a cancellation letter
£6 anes luhereby within three yeare, they
Cancelled the Mortgage pursuant to their rights’ under
federal law and. «+ that they did not each receive two
Completed copies of |. . the notice of right to cancel,
thereby as « matter of Law cancelling this loan.
5
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‘Thereafter, the district court ruled that such offers were not
relevant and sustained Aames’s objection.
The district court then announced its ruling “in favor
of [Aames}” and “grant(ed) judgment for possession and writ of
possession . . . effective . . . November 1{, 2001].” on
october 11, 2001, the district court entered its written findings
of fact, conclusions of law and order. the district court found
in relevant part as follows:
1. Ranes . . . holds title to the (Property)
2. hanes | |. 4s the registered owner of the
(Property):
3. (The Moreses) disputed {hanes’s} right to
possession of the subject property by entering 2 general
Genial to the complaint filed by (Aames) for Ejectment.
The district court ordered “Judgment for Possession” and a “Writ
on” be entered in favor of Aames. Attorney's fees and
of Pos:
costs were avarded to Aames. On October 24, 2001, the district
court entered its “Order Denying Mores Defendants’ Notice of
Motion and Motion to Dismiss Filed October 3, 2001.”
filed a notice of
on November 9, 2001, the More:
appeal, As mentioned previously, they appeal from the
october 11, 2001 order and dispute the October 11, 2001 findings
of fact and conclusions of law and the October 24, 2001 order
denying their motion to dismiss the complaint.‘
+ the october 11, 2001 order finally determined the complaint for
ejectment and is an appealable final order under Hawai'i Revised statutes
(Rs) § 641-1 (2), which authorizes an appeal from a final order in @ district
court civil case. Casumpang v ILM, Local 142, 91 Hawai't 425, 426, 98¢ P24
3251, 1252 (1999) (per curiam) (explaining that district court order that
Hinally decides ail rights and liabilities of all parties is an appealable
final order under HRS § 641-1(a)). The Moreses’ motion to dismiss the
(continued...)
‘***FOR PUBLICATION*#*
1.
on appeal, the Noreses argue that (1) the district
court lacked subject matter jurisdiction because their
declaration established that Aanes’s complaint involved a dispute
as to title to real property, (2) Aanes’s complaint failed to
state a claim for relief that could be granted by the district
court because the complaint did not plead that the Mortgage was
in default during the attempted acceleration, non-judicial
foreclosure sale, and at the time title was transferred, (3) the
“power of sale” clause is an unenforceable “contract of
adhesion,” rendering Aames’s non-judicial transfer of title both
unconscionable and void, and (4) the district court had no
subject matter jurisdiction to eject the Moreses because the
Moreses did not receive the requisite copies of the Truth In
Lending Act (TILA) “Notice of Right to Cancel
Aanes, in response, argues that (1) the district court
had jurisdiction to decide the ejectment proceeding because
Aanea’s title to the Property was conclusive and unimpeachable
following the entry of a certificate of title in favor of Aanes,
(2) the district court had jurisdiction to decide the ejectment
proceeding because the Moreses did not file an affidavit that
ynts of HOCRCP Rule 12.1,
complied with the “unambiguous” requir
(.. continued)
complaint, that was disposed of by the court's October 24, 2001 denial, is
Feviewable on appeal from the October 11, 2001 order. See
Marg, 3¢ Haw, 686, 694 (1938) (stating that an appeal from a final judgment
Springs up for review all interlocutory orders not appealable as of right
which deal with Seaues in the case”)
‘***FOR PUBLICATION®#*
and (3) the Moreses did not raise a timely or proper defense to
the ejectment proceeding.
qin,
~The existence of [subject matter] jurisdiction is a
question of law" that is “review(able) de novo under the right/
wrong standard.” Lester v. Rapp, 65 Hawai'i 238, 241, 942 P.2d
502, 505 (1997). See also Casumpana v, ILMU, Local 142, 94
Hawas's 330, 337, 13 P.3d 1235, 1242 (2000) ("A trial court's
dismissal for lack of subject matter jurisdiction is a question
of law, reviewable de novo.”) Additionally, “review of a motion
to dismiss . . . is based on the contents of the complaint, the
allegations of which we accept as true and construe in the light
most favorable to the plaintiff.” Id, (quoting Norris v.
Hawaiian Airlines, Inc., 74 Haw. 235, 239-40, 842 P.2d 634, 637
(1992) (brackets omitted)). The trial court, however, “is not
restricted to the face of the pleadings, but may review any
evidence, such as affidavits and testimony, to resolve factual
disputes concerning the existence of jurisdiction.” Id. (quoting
Norris, 74 Haw. at 239-40, 842 P.2d at 637 (internal quotation
marks, brackets, and citations omitted)).
Iv.
With respect to the Moreses’ first argument regarding
subject matter jurisdiction, Hawai'i Revised Statutes (HRS)
§ 604-5(d) (Supp. 1995) states in relevant part that “the
district courts shall not have cognizance of real actions, nor
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a
actions in which the title to real estate comes in question{.1”
The Noreses argue that their declaration of August 30, 2001
raises an issue as to title to real property in accordance with
HDCRCP Rule 12.1 (2001). In pertinent part, HDCRCP Rule 12.1
follow:
provides
Whenever, in the district court, In defense of an action in
the nature of an action of trespass or for the sumnary
possession of land, or any ether action, the defendant shall
feck to interpose a defense to the durisdiction to the
‘affect that the action is a real action, oF one in which the
title to real estate is involved, such defense shall be
asserted by written anser or written motion, shich shall
(Emphases added.)
‘The Noreses’ declaration states in item 2, that “[t]his
action involves a dispute as to title to real property.” In item
8, the Moreses declare, “{iJe claim that we have title to the
[Plroperty{.1” However, Aames maintains the Moreses did not
comply with HDCRCP Rule 12.1 because (1) the Moreses did not
assert their defense in a “written answer” or “written motion,”
(2) the Moreses’ mere assertion that “title is at 4 vas
insufficient to validate their claim, and (3) even if the
declaration is construed as a proper “written answer or . . «
motion," the Moreses failed to denonstrate the merits of their
claim in not identifying the “source,” “nature,” and “extent” of
their title claims in an affidavit.
‘***FOR PUBLICATION®#*
According to HOCRCP Rule 12.1, the “defense
(regarding title) shall be asserted by written answer or written
motion{.]" (Emphasis added.) The Moreses contend that they
satisfied this requirement because the written motion to dismiss
“referenc(ed)” their declaration as to title and was
“specifically recognized, argued, and denied by the district
court{.]” In addition, they point out that the district court
declared in its finding no, 3 that the “(Moreses) disputed
[Aames’s] right to possession of the subject property by entering
a general denial(*) to the complaint filed by [Aames) for
Ejectment.”
Although the Moreses’ declaration and subsequent
motion to dismiss together may be construed as fulfilling the
HOCRCP Rule 12.1 requirement that a defense to title be asserted
in a “written motion” or “written answer,” the Moreses failed to
assert the “source,” “nature,” and “extent” of their title clains
in an affidavit.
First, the Moreses’ declaration was not an affidavit
that was “confirmed” by the Moreses before a person authorized to
* At the October 5, 2001 hearing, Aanes's counsel stated, in
fant part, that
Lwle'd ask the (clourt take Judicial notice of the general
denial that the (Moreses] have entered in this case,
recognize it as a confession, that they dispute possession,
our right to possession of the [P]roperty, and with that, we
would submit that we've met our burden of showing that. Mo
have title of the [Plroperty and that our right to
Possession is in dispute, being disputed.
10
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administer the Moreses’ oath or affirmation.‘ An affidavit is
“{a) written or printed declaration or statement of facts, made
voluntarily, and confizmed by the oath or affirmation of the
party making it, taken before a person having authority to
administer such oath or affirmation.” Black's Law Dictionary 58
(6th ed. 1990) (emphasis added) .
Second, assuming azquende that the declaration may be
construed as an affidavit for the purposes of HOCRCP Rule 12.1,
the declaration merely asserts that title was at issue, and fails
to provide information as to the “source,” “nature,” and “extent”
of this claim, The Moreses’ declaration and memorandum of law
include statements objecting to the manner in which the Mortgage
was consummated such as the purported lack of an explanation of
the “power of sale” clause or of an appended copy of the TILA
“Notice of Right to Cancel.”’ None of these matters, however,
+ an unworn declaration may be treated as an affidavit in other
instances. See, guasr fawal'l Rules of Penal Procedure Rule 47(a) (2001) ("In
fee of afeidavits ah unsworn declaration nay be made by a person, in wetting,
subscribed as true under penalty of lew, and dated(-1") However, there is no
Hocnc® Rale thet provides for substitution of a declaration for an affidavit.
HDcacP Rule 6(d) (2001) provides in relevant part that “(wlhen a motion 19
supported by affidavit, the affidavit shall be served with the motion(.1*
» the Moreses’ declaration stipulated that the Mortgage states that
“iE default is not cored... Lender... may invoke the power of sale(.]”
Reading the declaration and the menorandim of law together, the Moreses clai
‘that (1) they were not allowed adequate tine to review the terms and
conditions of the Mortgage, (2) these terms and conditions were not explained
to then, (3) a8 laypeople, ‘the Moreses had unequal bargaining powers in
comparison to Aanes, (4) Aanes’s failure to explain the “power of sale” clause
Eendered the Mortgage unenforceable as = “contract of adhesion|,]” (5) without
notice and a hearing, “substantial property rights” wore lost as a
Constitutional matter “at the time of the non-judicial auction(,]” and (6) the
hon-judicial foreclosure procedures pursuant to HRS § 667-5 raise fairness and
doe process problens insofar as a 100s cash closing was required at the public
(continued...)
a
‘***FOR PUBLICATION®#*
” nature,”
are germane to informing the court as to the “sour
and “extent” of the title claimed by the Moreses as to the land
in question. Hence, the Moreses’ mere assertion that “title is
at issue” is insufficient to validate their jurisdiction defen:
maintains that Territory v. Kapiolani Gatate,
Ltd., 18 Haw. 640 (1908), is instructive as to the objective of
HDCRCP Rule 12.1. In Kapiolani Estate, a summary possession
action was brought by plaintiff-lessor against defendant-lessee
ane
for failure to make rental payments, Id. at 641-42. Plaintiff-
lessor sought to recover possession of the disputed leased
property. Id, at 641. The action was adjudicated in district
and circuit courts in favor of plaintiff-lessor and was,
ultimately, appealed by defendant-lessee to the territorial
supreme court. Id. at 641-42. The defendant-lessee contended
that district courts “shall not have cognizance of real actions
nor actions in which the title to real estate shall come in
question.” Id, at 642-43. The court overruled the “exceptions”
brought by the defendant-lessee. Id. at 646. Rule 15 of the
territorial supreme court, entitled “Defense of Title in District
courts,” and in effect at the time provided as follows:
Whenever, in the District Courts, in defense of an
action of trespass, of a suit for the euamary possession of
and, or any other action, the defendant shall plead to the
Jurisdiction in effect that the suit isa real action, or
(...continued)
auction that allowed Aenea to purchi
the Property on "sel f-determined
‘The Moreses’ declaration also asserted that Aanes failed to
provide the required federal TILA "Notice of Right to Cancel,” ellowing then
fo cancel the loan within three years of ite consunnation.
12
‘***FOR PUBLICATION***
‘igiSitene af the title clalaad by defendant to the iond tn
uection, and such further particulars es ball fully
Spprise the court of the nature of the defendant’ claim.
Ida at 643 (emphases added). On its face, Rule 15 is
substantially similar to HOCRCP Rule 12.1.
The territorial supreme court observed that “(t]he
object of [Rule 15] was to prevent [defendants) from ousting the
district court of jurisdiction in this class of cases by merely
saying that the title to real estate would cone in question and
thereby depriving the (plaintiff) of the summary remedy given by
the statute . . . for obtaining possession of land{.]" id. In
Light of the Moreses’ similar insufficient showing under HOCRCP
Rule 12.1, the district court, as indicated in Kapiolani Estate,
cannot be ousted from jurisdiction.
The Moreses thus failed to adhere to the requirenents
set forth in HDCRCP Rule 12.1 and, therefore, did not properly
interpose the defense of lack of subject matter jurisdiction.
v.
Aames’s argunent that TCT No. 587,098 is conclusive and
unimpeachable evidence as to title in any foreclosure proceeding
is dispositive of the Noreses’ second, third and fourth points
insofar as those points are supported by discernible arguments.
a
Relying on HRS § 501-118 (Supp. 2001), Aames asserts
that the Moreses “did not have the right or power . . . to
2B
‘***POR PUBLICATION*++
impeach the foreclosure proceeding” during the subsequent
ejectment action because, intex alia, the Moreses’ defenses
against district court jurisdiction were raised in an untimely
manner. According to Aanes, the Moreses’ defenses “should have
been raised . . . before the completion of the (foreclosure)
sale, and certainly no later than the entry of the new
certificate of title.”
HRS chapter 501 pertains to “registration of title
[with the Land Court] to land and easements or rights in land
held and possessed in fee simple within the state of Hawaii.”
HRS § 501-1 (1993). The 1903 legislative history of HRS chapter
501 is sparse. However, the legislature indicated that Act 56,
which established the statute, incorporated what is commonly
known as the “Torrens Land Act.” S. Com. Rep., in 1903 Senate
Journal, at 337. According to the legislative history,
[eihis Act Ss what is commonly know es the “Torrens Land
‘Act, and has been adopted by many states of the United
States, and is in use in the District of Columbia.
1s provides an economical and convenient manner of
recording land titles, which, wien the plan is fully adopted
by tne people, will do away with the present cumbersome plan
of records and largely reduce the expense of land transfer:
The plan proposed is such thet under it lend can be
ransferred with as areat facilitv aa shares of atock are at
‘the present tine.
Id. (emphases added). The system of land title registration
adopted by the Torrens Land Act and codified in HRS chapter 501
is “a system for registration of land under which, upon the
landowner's application, the court may, after appropriate
us
***FOR PUBLICATIONS **
proceedings, direct the issuance of a certificate of title.” In
re Campbell, 66 Haw. 354, 358, 662 P.2d 206, 209 (1983). The
purpose of this “registration system is to conclusively establish
title to land through the issuance of a certificate of title.”
GSS HI), Inc, v. New York Diamond (in re 2003 Ala Wai Blvd.), 85
Hawai's 398, 405, 944 P.2d 1341, 1348 (App. 1997), overruled on
other grounds, Knauer v, Foote, 101 Hawai'i 81, 85-89, 63 P.3d
389, 393-97 (2003).
HRS § 501-118, relied on by Aames, is entitled
“Foreclosure,” and states that
(mortgages of registered land aay be foreclosed 1ike
nortgages of unzegistered land.
Tn case of foreclosure by auction, a certified copy of
the final Judgment of th fonfirning the sale may be
Hed or recorded with the assistant registrar or the deputy
after the time for eppealing therefrom has expired and the
Purchaser shall thereupon be entitied to the entry of a new
Certificate
In case of foreclosure by exercising the power of sale
without a previous Sudgeent, the affidavit required by
Chapter 667 shall be recorded with the assistant registrar
‘The purchaser or the purchaser's assigns at the foreclosure
sale may thereupon at any time present the deed under the
Power of sale to the assistant registrar for recording and
obtain # new certificate. Nothing in this chapter shall be
‘Sonstiusd to prevent the martaasor ox other eeraon in
any foreslowure orosaedinas affecting recistered land, otior
fs new certiti
‘Aicer a nou certificate of title has been entered no
7 7 £08
‘hereon shall operate to open the foxeclomuse or attact the
Eitle to reaistesed land.
(Emphasis added.) The underscored language of HRS § 501-118
clearly recognizes a mortgagor's right to challenge a foreclosure
proceeding, stating that “[nJothing . . . shall . . . prevent the
as
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mortgagor . . . from directly impeaching . . . any foreclosure
proceedings.” Id, However, the statute directs that such a
right is to be exercised “prior to the entry of a new certificate
of title.” Id, Consistent with this proposition, HRS § 501-118
provides that “[a]fter a new certificate of title has been
entered, no Judgment recovered on the mortgage note for any
balance due thereon shall operate to open the foreclosure or
affect the title to registered land.” Id. (emphasis added).
This indicates that conclusive effect is to be given the
certificate of title on the question of title to land.
Accordingly, it may be surmised from the text of HRS
§ 501-118 that @ mortgagor's right to “impeach(] . . . any
foreclosure proceeding” is expressly limited to the period before
entry of a new certificate of title. This proposition appears to
be buttressed by HRS § 501-88 (1993), which provides that the
matters stated in the certificate are to be given conclusive
effect in the courts.
Certificate as evidence, The original certificate in
the registration book, and any copy thereof duly certified
under the signature of the registrar... , and the seal of
the court, alall be feceived as evidence inal che course
chapter
(Emphasis added.) Such a construction of HRS § 501-118 would
effectuate the legislature's intent that the recording systen
adopted be an “economical” and “convenient” method of “recording
land titles” allowing transfer of titles to be completed with
16
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—_SSSSSSSSSSSSSSSSSSSSSSsSses
wgreat facility” and ease. Sen. Com. Rep., in 1903 Senate
Journal, at 337.
In 1998, Act 122, entitled “An Act Relating to
Foreclosures,” made amendments to HRS § 501-118 and additions to
L. Act 122, $§ 1 and 3, at 468,
HRS chapter 667. 1998 Haw. Se:
477-78. HRS chapter 667 as titled, relates to “Mortgage
of Act 122 vas to “establish an
Foreclosures.” the purpo:
alternate nonjudicial foreclosure process." Conf. Com. Rep. No.
75, in 1998 House Journal, at 979. Anew part to HRS chapter 667
was added, entitled “Alternate Power of Sale Foreclosure
Process.” 1998 Haw. Sess. L. Act 122, § 1, at 468. See HRS
§ 667-21 (Supp. 1998) (defining “power of sale foreclosure” as “a
nonjudicial foreclosure”). The legislature sought to “provide(]
an alternate nonjudicial foreclosure process which reduces the
time and cost of the current foreclosure process and contains
additional safeguards not required in the current power of sale
foreclosure law that are needed to protect the interests of
consumers.” Conf. Com. Rep. No. 75, in 1998 House Journal, at
973.
Concerns that such a measure would result in “taking
away home ownership” were raised.’ Comment by Representative
* Upon consideration of the passage of House Bill No. 2506 from the
final reading stage by the House, Representative Ward voiced objection to
House Bill No, 2506 and stated, in pertinent part, “I don’t think (the ou!
Of Representatives) need[s] to faciiitete in taking avay hone ownership... .
What the downside [of this Bi12] will be ie that it’s going to take hone
comment by Representative Ward in 1998 House
ownership away from people)"
Journal, at 766.
(continued.
uv
Ward, in 1998 House Journal, at 766. In apparent response, the
amendments made to HRS chapter 667 and HRS § 501-118, inter alia,
(7) Requix(ed} a11 financial institutions,
mortgagees, lenders, business entities and organizations,
land persons who intend to use this power of aale foreclosure
Process to educate and inform borrowers and mortgagors and
develop informational materials:
(8) Restrict(ed) the use of the alternate nonjudicial
power of sale foreclosure process to mortgages, loans
Agreements, and contracts containing power of sale
foreclosure language executed by the borrowers or mortgegors
after July 1388) and
3) nal statutory Languace in
Conf. Com. Rep. No. 75, in 1998 House Journal at 980 (emphases
added). Items such as (7), by which mortgagees are required to
“educate and inform” mortgagors, and item (8), where such
measures were limited to mortgages executed after July 1, 1999,
continued)
Representative Thielen algo voiced her opposition to House BiLl
No. 2506 and stated, in relevant part, a2 follow:
This bill... . sets up a process where the court is
not involved, which means that a lender could foreclose upon
3 hone without the court ever being involved in that
Process, and the court being able to provide a fair forum
for the homeowner.
‘The rush to foreclose measure puts convenience above
fairness and equity in foreclosure proceedings. Mr.
Speaker, I'm not talking about lenders like the Bank of
Hawaii Or First Hawaiian Bank. I’m talking about more
questionable lenders who are going to use this process to be
able to take a person's hone away from the family that has
worked their whole lives to purchase that hone.
Eeticioncy in the legal system, although an adairable
objective, should not restrict access to the court and
elisinate impartial resolution of mortgage disputes. This
DALI mainly compounds existing party inequities and
‘streamlines the process of losing one’s hone in the name of
the convenience for lenders.
Comment by Representative Thielen in 1998 House Journal, at 766.
18
‘***FOR PUBLICATION®#*
were seen as “additional safeguards not required in the
[previous] power of sale foreclosure law . . . needed to protect
" [ds at 979. However, the
the interests of consune:
legislature decided, as announced in item (9), to “(rletain{] the
original statutory language” of HRS § 501-118. Id, at 980.
The legislative history of HRS § 501-118 confirms the
textual command that defenses to mortgages foreclosed upon by
exercise of the mortgagee’s power of sale must be raised “prior
to the entry of a new certificate of title.” HRS § 501-118. The
Moreses’ objections contained in their August 30, 2001 joint
declaration came after, and not prior to, the Land Court's
issuance of TCT No. $87,098. Accordingly, title to the subject
property in Aames became “conclusive and unimpeachable.”
B,
Inre Bishop Trust Co., 35 Haw. 816 (1941), on which
Aames also relies, is consistent with the foregoing discussion.
In that case, the original registered landowner was described on
two transfer certificates of title as an unmarried man. Id. at
817-18. The landowner did not anend these certificates to
reflect the fact that he had married. Id, at 618-19. This
allegedly affected (1) the issuance of two trust deeds from
himself to the appellee-buyer, and (2) the entry of three new
certificates of title in favor of appellee-buyer. Id, The two
trust deeds were executed on Decenber 14, 1935. Id. at 818.
Pursuant to these deeds, appellant “joined with her husband and
1s
released her claim to dower” in the disputed property. Id.
Thus, appellee had knowledge of appellant before the issuance of
the certificates. Id, Following the death of the landowner, a
dispute arose between the appellee-buyer and appellant, the
landowner’s widow, as to whether appellant’s dower right took
priority over appellee's rights under the certificates. Id. at
820.
‘This court held that the appellee-buyer, as the later
registered owner of the subject property, was entitled to
possession because the new certificate of title was “conclusive”
with regard to “all matters contained therein,” i.e. that the
registered landowner was “an unmarried man.” Id. at 822. In
pertinent part, the territorial supreme court noted:
1d, a certificate of title ts un
Sonclusive excent a2 otherwise orovided by law, it would be
ff the purch
‘for value had inowledge of an existing uncediaterad
‘encumbrance. To do so would be to rob a certificate of
Hite of iss conclusive and unimpeachable character and
place it in the same coteaory as the ordinary record in the
‘bureau of convevances, It the intent and purpose of the law
pertaining to the reaistration of land titles is to be
Breserved, the intearity of certificates of title must be
‘scrupulously observed and every subsequent purchaser of
Fegistered land who takes a certificate of title for value,
except in cases of fraud to which he is a party, is entitled
under the provisions of section S041 to hold the sane free
from ali encumbrances except those noted on the certificate
and the statutory encumbrances enumerated.
Id. at 825 (emphasis added).
vi.
In their reply brief, the Moreses seemingly attempt to
distinguish In re Bishop Trust Co. by citing to language in that
20
‘***FOR PUBLICATION!
eee
case that qualifies the “conclusive and unimpeachable” nature of
title in instances “otherwise provided by law” as “in cases of
fraud,” but only where “the rights of the purchaser for value and
in good faith had [not] intervened.”? Id, at 625-26.
Three types of fraud have been recognized in this
(1) fraud in the factum,
jurisdiction in the mortgage context:
(2) fraud in the inducement, and (3) constructive fraud,
Honolulu fed. Sav, 6 Loan Ass'n v, Murphy, 7 Haw. App. 196, 202,
753 P.2d 607, 811 (1988). “*Fraud in the factum is fraud which
goes to the nature of the document itself.’” Id. at 201 n.6, 753
P.2d at 811 n.6 (quoting Adair v. Hustace, 64 Haw. 314, 320 n.4,
640 P.2d 294, 299 n.4 (1982). “*Fraud in the inducement is
fraud which induces the transaction by misrepresentation of
motivating factors.’” Id, at 201, 753 P.2d at 811 (quoting
Adaix, 64 Haw. at 320 n.4, 640 P.2d at 299 0.4 (internal
quotation marks and citation omitted)). “Constructive fraud is
characterized by the breach of fiduciary or confidential
7 the Moreses apparently rely on the language in in re Bishop Trust,
Co. which states that
[4Jn conclusion we might add that nothing that we have said
should be construed as intimating in any way the Lecal’
sffect, if any, of the failure of the reaistered amex or
ther 2 snanent
‘Existing cortifleates registered in the name of (the prior
Tandowner) upon the right of dower inchoate in (his wife)
intervened end (the prior landowner] had died seized of the
Tone in question. We are alone concerned with the legal
effect of the failure by the parties concerned to effect
Such anendnent in respect to the rights, under the statute,
Of # purchaser for value possessing actual notice of the
‘the relation of husband and wife subsequent to
registered omer.
Ince Bishop Trust Co,, 35 Haw. at 826 (emphases added).
2a
relationship.” Id, at 201 n.6, 753 P.2d at 811 n.6 (citing Silva
YsBisbee, 2 Haw. App. 168, 190, 628 P.2d 214, 216 (1981).
However, the Moreses do not provide a discernible factual or
at bar
Legal argument in support of their position that the c
involves any one of the three types of fraud mentioned. See
Hawai‘ Rules of Appellate Procedure Rule 28(b) (7) (2001)
("Points not argued may be deemed waived.”)
As to the Moreses’ assertion that Aanes was not a
“purchaser for value,” this assertion is based on contentions
that (1) Aames declared default, scheduled and auctioned off the
Property, filed a HRS § 667-5 affidavit," and transferred title
to itself without the Moreses’ approval; and (2) Aames’s counsel
signed the “Commissioner's Deed” and conveyed the property to
ames as “Grantor” in contravention of Hawai'i Rules of
Professional Conduct (#RPC) Rule 3.7(a) (2001). However, the
Moreses do not indicate why Aames’s actions, pursuant to HRS §
667-5 (1993), required their approval or make clear why Aames’s
actions contravene HRPC Rule 3.7(a). In any event, inasmuch as
the Moreses have not set forth a legal basis for fraud, the
question of whether Aames was a purchaser for value whose rights
would be protected even where fraud had been perpetuated on the
Moreses, does not arise.
RS § 667-5 requires that “(t]he affidavit and copy of the notice
lof non-judicial sale) shall be recorded and Indexed by the registrar, in the
manner provided in [HRS] chapter 501 or 502, as the case may be.”
22
‘***FOR PUBLICATION*#*
Insofar as Aames is the registered owner of the
Property as evidenced by TCT No. 587,098 and this title is
conclusive and unimpeachable, see discussion supra, Aames was
entitled to a writ of ejectment. Carter vs Kaikainahaole, 14
Haw. 515, 516 (1902) (explaining that “a complainant who has the
title to and right of possession of certain land and from whom
possession is unlawfully withheld by another” is entitled to “the
ordinary remedy of law of an action of ejectment”)."
% in Light of the foregoing analysis, we need not address the
Noreses! second, third, of fourth argunents. However, we cbserve as to, the
wore: cond’ argument, that the Mores
Support the rule that "s loan default most be
‘evidence before sunsary adjudication ‘8 perat
Courts” is misplaced. ‘These cases are distinguishable in:
Gates do not concern real property and ejectnent action!
29 Hawai'i 244, 245-47, 971 P.24 717, 718-20 (1999) (involving a medical
naipractice claim); Bac Concrete Fed, Credit Union x Kauanaa, 62 Haw. 334,
‘Sas, 614 P.2d 936, 937 (1960) (reaolving dispute over two connercial monetary
loan transactions) 7 1 78 Hawas's 213,
2ier1s, 881 P.24 300, 308-06 Tapp. 1998) (pertaining to allegedly untair or
Goceptive collection practices by collection agencies); or (2) the cases
Gnvolve real property and Judicial foreclosure proceedings rather than
Ronjudicisl foreclosure proceedings, ges Havai'l Cuty, Fed. Credit Union ve
Keka, 9¢ Hawai'i 213, 217-18, 11 P.34 1, 5-6 (2000) (relating to foreclosure
Complaint filed by mortgages and counterclaim fled by mortgagor alleging
hegligent misrepresentation, unfair and deceptive trade practices, TILA
Wielations and enction distress); GE Capital Hawai'i, Inc. v. Youenaka,
Kawato, oy Sb b3a G07, 810 (Ape atOLT inolving. clapae seat ated b
Rortgagee'’s filing of a complaint against mortgegor followed by a cross-claim
Gnd third-party complaint filed by mortgagor ageinst a guarantor on the
mortgage) and GE Cepital Hawaii, Inc, ¥. Miquel, 92 Hawai'i 236, 238, 990
P.2d 134, 136 (App. 1999) (concerning complaint filed by mortgagee against
noregagor seeking foreclosure of disputed property).
Rs to the Moreses’ third ang fourth arguments, the legislative
history to HRS § 501-116, mentioned previously, suggests that mortgages are
required to “educate and inform borrowers and mortgagors” about the “power of
sale foreclosure process." Conf. Com, Rep. No. 75, in 1998 House Journal at
580. owever, as previously stated, legislative history to HRS § 501-118 also
Indicates that mortgagor must smpeach a foreclosure proceeding “prior to the
entry of a new certificate of title.” Jd, (emphasis added). Here,
foreclosure of the Property occurred before the Moreses filed their joint
Geclaration on August. 30, 2001, asserting their claims of unenforceable “power
of sale” clauses and their TILA clains.
‘in thelr opening brief, the Moreses reiterate their arguments
about Aanes's failure to provide then with the "Notice of Right to Cancel” and
Quote @ paragraph from valley Fs en 791 Fa2d
)
(continued,
23
‘***FOR PUBLICATION*#*
vir.
Based on the foregoing, we affirm the district court's
October 11, 2001 order granting Aames a writ of possession and
the October 24, 2001 order denying the Moreses’ motion to dismi
filed on October 3, 2001.
on the briefs:
Gary Victor Dubin for
defendants-appellants. Bac Hehans
Adelbert Green (Dwyer
Schraff Meyer Joseen & Besceate Coa biy net
Bushnell) for plaintiff
appellee. A “ <
(.--continued)
699, 701-02 (9th Cir. 1986), which references 15 U.S.C. § 1635(f). The
Moreses do nat specifically set forth any statutory provision, or explain how
15 U.5.C. § 1635(f), Lf applicable, affects title that has become conclusive
and tninpeachable. ‘Because the Moreses do not provide any discernible legal
argument as to their contention that the court had no. svb:
Jurisdiction because the Moreses did not receive the requisite copies of the
TILA “Notice of Right to Cancel,” we do not address this contention further.
24
|
bdd6408c-a2a1-4cce-861f-802739068ebe | Clarke v. Waldorf | hawaii | Hawaii Supreme Court |
wo. 28311 a
ZN SHE SUPREME COUR? OF THE STATE OF wawart = 3
een eee
ROBERT J. CLARKE, Petitioner,
6e:0 Kd
‘THE HONORABLE MARCIA J. WALDORF,
Judge of the First Circuit Court, Respondent.
ORIGINAL PROCEEDING
(CR. NO. 06-3-1156)
‘ORDER
+ Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of petitioner Robert J. Clarke's
December 5, 2006 letter to the Hawai'i Supreme Court, which is
deemed a petition for a writ of mandamus, it app
es that
petitioner seeks @ writ from the supreme court directing the
circuit court to impose certain conditions of hospitalization if
petitioner is ordered hospitalized at the Hawai'i State Hospital.
However, petitioner may request the conditions of hospitalization
from the circuit court if and when the circuit court orders
hospitalization and petitioner is not entitled to mandamus relief
from the supreme court. See Kena v, Gaddis, 91 Hawai'i 200, 204,
982 P.2d 334, 338 (1999) (A weit of mandamus is an extraordinary
remedy that will not issue unless the petitioner demonstrates a
clear and indisputable right to relief and a lack of alternative
means to redress adequately the alleged wrong or obtain the
requested action). Therefore,
IT IS HEREBY ORDERED that the clerk shall file
petitioner's letter and accompanying documents, without payment
of the filing fees and costs, as a petition for writ of mandamus.
aaus
S FURTHER ORDERED that the petition is denied. The
denial is without prejudice to any remedy petitioner has in the
circuit court
DATED: Honolulu, Hawai'i, December 15, 2006.
Robert J. Clarke,
pre se, on the petition Goin
|
de33e2fa-6ac0-49a4-a186-d35d71f3c2f3 | Office of Disciplinary Counsel v. Bennett | hawaii | Hawaii Supreme Court | No. 26201
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
orvice oF prscrrutnaay comssi, retitioner,
vs. Be 8
DALE L. BENNETT, Respondent. Es|e
BIE op
(ope 02-136~7334, 02-137-7335)
Ni
Moon, €.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
|
Upon consideration of the Office of Disciplinary
Counsel’s “petition for order granting request of Dale L. Sennett
to resign from the practice of law in lieu of discipline,” and
the menorandun, affidavit, and exhibits in support thereof, it
appears the motion is supported by Respondent Bennett's affidavit
and that the affidavit meets the requirements of Rule 2.14(a) of
the Rules of the Supreme Court of the State of Hawai'i (“RSCH”),
It finally appears that Respondent Bennett is currently suspended
and should have no practice to wind down. Therefore,
IT 18 HEREBY ORDERED that the motion is granted and the
request of Respondent Dale L. Bennett to resign in lieu of
discipline is granted, effective upon entry of this order.
TT TS FURTHER ORDERED that (1) upon the effective date
of this order, the Clerk shall remove the nane of Dale L. Bennett
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 Bennett shall deposit with the
Clerk of this court the original certificate evidencing his
license to practice law in this state.
aad
TT 1S FINALLY ORDERED that (1) Respondent Bennett 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 (£)-
DATED: Honolulu, Hawai'i, December 29, 2006.
charles H. Hite,
Assistant Disciplinary
Counsel, for
petitioner on the Gor
petition
Dale L. Bennett, DERG fe
respondent pro se
Recceuee Oreo
Ge
Coe €. Quaryith +
|
e84ad95f-45cb-4401-87f0-2c895e3a305e | Querubin v. Thronas. Dissenting Opinion by J. Acoba [pdf]. | hawaii | Hawaii Supreme Court | LAWLBRARE
*#* FOR PUBLICATION ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
=== 000
BENJAMIN QUERUBIN; CAROLYN TAKETA, as Special Administrator of
the Estate of JUANITA QUERUBIN, deceased,
Plaintiffs-Appellants, 3
eS =
OLAF THRONES, i
Defendant~Appellee, 2 c
AND
CHARLES K. LEE; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS
1-10; DOE CORPORATIONS 1-10; ROE CORPORATIONS 1-10; ROE “NON-
PROFIT CORPORATIONS 1-10; and ROE GOVERNMENTAL ENTITIES 1-10;
Defendants;
OLAF THRONAS,
Defendant /Cross-Plaintiff,
CHARLES K. LEE,
Defendant /Cross-Defendant,
OLAF THRONAS,
Defendant /Counter-Plaintiff,
BENJAMIN QUERUBIN,
Plaintiff /Counter-Defendant.
CAROLYN TAKETA, as Special Administrator of the Estate of JUANITA
QUERUBIN, deceased,
Plaintiff /Cross-claim Plaintifs, ~
FOR PUBLICATION ***
BENJAMIN QUERUBIN,
Plaintiff/Cross-claim Defendant.
OLAF THRONAS,
‘Third-Party Plaintifs,
THE COUNTY OF KAUA'I, a political subdivision of the State of
Hawai'i, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10,
DOE PARTNERSHIPS 1-10, AND DOE ENTITIES 1-10,
‘Third-party Defendants
No. 24086
APPEALS FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL No. 98-0127)
MARCH 31, 2008
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.,
‘AND ACOBA, J., DISSENTING
OPINION OF THE COURT BY LEVINSON, J.
The plaintiffs-appellants Benjamin Querubin
(hereinafter, “Benjanin”) and Carolyn Taketa, as Special
Administrator of the Estate of Juanita Querubin [hereinafter,
‘suanita”} [collectively hereinafter, “the Appellants”), appeal
from the February 7, 2001 final judgment of the circuit court of
the fifth circuit, the Honorable George M. Masuoka presiding,
alleging that the circuit court erroneously entered the February
25, 2000 order granting the defendant-appellee Olaf Thronas’s
motion for summary judgment (¥SJ) via joinder in the MSJ of the
third-party defendant County of Kaua'i (hereinafter, “the
“the oxder granting Thronas’s
County”] [collectively hereinafter,
‘** FOR PUBLICATION *##
MsJ via joinder”).
on appeal, the Appellants argue: (1) that they “were
deprived of their constitutional right to due process of lav”
because (a) the circuit court “erred in sua sponte granting
‘summary judgment” and (b) they “were deprived of their right to
present evidence when the [circuit] court granted summary
Judgment against them”; (2) that “the third-party complaint
pleads an action distinct and separate from that originating in
the original complaint”; (3) that the Appellants’ “right to
present evidence is not defeated by Thronas’s collusion with the
County”; and (4) that “the evidence does not support summary
judgment against the” Appellants, insofar as “only admissible
evidence can be considered on a motion for sunmary judgment,”
such that the circuit court should not have considered (a)
“counsel’s statements in legal briefs,” (b) “the ‘drivers’
statements,’” which are “inadmissable double hearsay,” and (c)
“police reports,” which are “not authenticated.”
‘Thronas responds: (1) that the Appellants “raise
issues in this appeal which they failed to raise in the trial
court, their failure does not meet the criteria for addressing
new issues on appeal, and hence this court must ignore these new
issues”; (2) that, “by filing a statement of no position to [the]
County's motion for summary judgment on the issue which formed
the basis for their claim against Thronas, [the Appellants]
waived their right to challenge the effect of a decision in favor
(3) that, “given [the Appellants’
of [the] County”, taking no
position on [the] County's motion, and the moving papers
‘#4 FOR PUBLICATION *#*
Providing a sufficient basis, Judge Masuoka properly granted
summary judgment in favor of [the] County and Thronas”; (4) that
“the still-viable judgment on the order granting summary judgment
in favor of (the] County is the ‘law of the case,’ eliminated the
basis for [the Appellants’) claim against Thronas, and cannot be
vacated without causing harm to [the} County"; and (5) that
“there was no clerical error involved in Judge Masuoka’s granting
summary judgment to Thronas; thus Judge Masucka did not abuse his
discretion when he denied [the Appellants’] (Hawai'i Rules of
Civil Procedure (HRCP)] Rule 60(a) [(2000)"} motion for
reconsideration.” (Emphasis in original.)
The Appellants reply: (1) that “thronas grossly
misstates the procedural facts”? (2) that “an affidavit
consisting of inadmissible hearsay cannot serve as a basis for
awarding summary judgment”; (3) that the Appellants “did not
waive their claims”; (4) that “this court could consider all
issues raised in the appeal”; (5) that “the law of the case
doctrine does not apply"? and (6) that the Appellants “were
deprived of due process of law.”
For the reasons discussed infra in section 112, ve
hold: (1) that the circuit court erred in sua sponte entering
1 WREE Rute 60a) provide
Reliet from judgeent or order.
{a} Clerical Méstores. Clerical mistakes in Judgments, orders ot
Gelsasln say be corvectea by the court at any fine at‘ iss Soar taat ire
eure srders, biting tne’ gendency ef'an sppesis sven ausetber ate be 0
corrected before the appeal sn docketed inthe supreme asures and
thereafter while the appeal iz pending may be so corrected with leave of
‘4+ FOR PUBLICATION *#4
the order granting Thronas’s MSI via joinder in Thronas’s favor
and against the Appellants without providing the Appellants
notice that the entry of sunmary judgment against the Appellants
was under consideration and an oral hearing expressly with
respect thereto; and (2) that, notwithstanding the foregoing, (a)
the order granting the County's MSJ against Thronas and (b) the
Judgment in favor of the County and against Thronas remain the
“law of the case.” Accordingly, we (1) vacate (a) the February
25, 2000 order granting Thronas's MSJ via joinder in Thronas’s
favor and against the Appellants and (b) the circuit court's
February 7, 2001 final judgment and (2) remand this matter to the
circuit court for further proceedings consistent with this
opinion.
1. BACKGROUND
‘The procedural history of the present matter includes
several events that are immaterial to the appeal before this
court. Accordingly, we set out only the relevant background
below. On April 22, 1998, the Appellants filed a complaint in
the circuit court, alleging in relevant part:
2 (Benjamin)... and. . . [Juanita
deceased, . | | Geel! materiai tines herein, were residents
ef the County of Kavai, state of Hawaii.
2. befendant CHARLES K. LEE af atl material
tines herein, was a resident of the County of Kaval, state
of Hawai
= (Thronas), . . . at all material tines
herein, wes a Fesident of the County of Kauei, State of
Haweil
6." * on or about August 1, he intersection
of Lavkona Street and Kunio Highway near the Mile Marker #2,
in the town of Hananaulu, County of Kauai, state of Hawa!
(lee) negligentiy operated his actor vehicle co as
ron the red 1ight and collide with (the Appellants’ J
‘+## FOR PUBLICATION *##
ventele,
3... . (throngs) is the registered landowner of
tthe property igeated at 4485 Laukona Street, adjacent to the
intersection of Laukona Street and Kuhio Highway.
1 (Thronas) negligently maintained a hedge
at the Corner Gidsest to said intersection{,) which far
exceeded the three feet height lineation imposed by law and
thereby obstructed the visien of motorists and caused a
eestfic hazard
9. The conbined negligence of {Lee and Thronas}
directly caused the collision described above.
10." As a result of said collision, « . . (Benjamin)
suftered severe bedily injuries Including, but not limited
tol,] multiple fractured ribs and a) punctured long
Tie RS a result of the said accigents
[suanita} suffered multiple neart attacks and died
12, “as a further result of the aforesaid conduct of
uee and’thronas),. + (Benjamin) hos suffered mental
Aistress, limitation of activities, loss of enjoyment. of
Life, loss of consortiun and other damages as shall be
proven at trial
13. "as a further result of the negligence aforesais,
(the xppeliante) have sustained medical, rehabilitative and
miscellaneous expenses in excess of the minimum thresheld
Establishes in HeR-S. Chapter 431:10C-308, and {eheyl, seek
Gamages therefor an an anount to be shown’ at trial
WHEREFORE, [the Appellants) denand jodgnent
(Lee and Thronas, jointly and severally, a8, follows:
Re General damages in an amount’ to be shown at the
time of trials
B.| "Special damages in an amount to be shown at the
time of trials
C. “Frejudgment interest from the date of the
accident, costs, ana reasonable attorneys fees, and such
Cther and further relief se may be deened just’ and
equitable:
On May 18, 1998, Thronas filed, inter alia, an answer
to the Appellants’ complaint. On March 5, 1999, Thronas filed a
third-party complaint against the County, alleging in relevant
Part as follow:
4. (The Appellante) alleged in their Complaint)
«_«_. afiong ether things, that (Dhronae] "ie the registered
landowner of the property... adjacent to the intersection
of Laukons Street! and Kuhio Highway (hereinafter designates
Mintersection’),” {Thronas] was negligent in maintaining “a
hedge at the cofner clorest to (INTERSECTION) ss and
thereby obstructed the vision of ncterists and caused «
traffic hazard,” and the negligence ef [Thronas] “directly
caused” @ traffic accident et INTERSECTION fron which [the
Sppeilante) ineurred damages}
‘Thronas!s
‘++ FOR PUBLICATION *#*
5. Based on information and belsef, (hronas)
alleges that the portion of the subject hedge that is,
Closest to INTERSECTION 1s in property that is onned and
Under the control of [the County?
bo) “Tine county]. «hed a duty to maintain that
portion of the hedge that io closest to INTERSECTION, and Sf
ny part of the hedge contributed to the damages incurred by
[the Appellants}, or any of thes, it was the portion of the
hedge located in’ (the county's). . . property that did 2%
an {the county} Breached its{j Sety £0 maintain that
Portion of the hedger
3." “IE [the Appellants), or any of them, incurred
Ganages ar alleged in their Conzlaint, each of their damages
were the result of the negligence or fault of (the County)
Sand [Thrones] was not at fault in any way? and
G0" Any negligence or fault on the part of (Thronas]
was passive and quaternary, whereas the negligence or fault
SE [the County) was active and primary, and thus
(Thronas) is entitied to indennitication, contribution
and/or subrogation from (the County].
(WHEREFORE THRONAS PRAYS AS FOLLOWS:
i. Tf judgment is enterea in favor of [the
Appellants), or any of then, against any party to this
action, that (the circuit court} enter Judgment against (the
Couney$ ts ‘and not ins
2.) “1b judgment is entered in favor of (the
Appellants], or any of them, against hin, that (the circuit
court] enter judgnent against (the County) . . . in favor of
him on the basis of indemnification, contribution, and/or
3. If he and any other party to this action are
Getermined co be joint tortfessors, that [the cireust court)
Sstablish the relative degree of fault of each tortfeasor,
fang enter judgnent against [the County]... for any excess
Uihich he pays over and above his pro-rata share of the total
Judgment, if any, in favor ef [the Appellante], or any of
4. Grant him such cther relief as [the circuit
court) deens to be Just and equitable:
on March 23, 1999, the County filed its anewer to
third-party complaint.
On December 7, 1999, the County filed a motion for
summary judgment against Thronas (hereinafter, “the County's
Mss") and
a memorandum in support thereof. The County’s MSo
recited in relevant part as follows:
COMES NOK, . .. [the County], by and through ite
attorney, 1 (ajeputy [eleunty attorney, and hereby
Rover for sunmary judgment against... (Thronas]
‘+** FOR PUBLICATION ###
This Motion 1s made pursuant to (HRCE) Rule 56
111999),°) -. and Ze supported by the pleadings,
attigavite, exnibite, supporting memorandum, and shy
evidence to be adduced at che hearing on said motion.
In the memorandum in support of its MSJ, the County argued as
follows with respect to Exhibit A, which was attached to the
motion:
The police report, which includes witness statenents,
drivers’ statements, and the traffic investigation, all make
fone point clear: she “i ‘$
Not ony dees the police fepert state ther
Grivers at the intersection have clear line of sights the
Feport reveals that the most likely cause of the accident
was [Lee"s] running a red traffic Light and colliding with
[the Appellants’ ] vehicle
+ RCP Rule $6 provides in relevent part:
A party seeking to recover upon a claim,
‘counterclaim, or cross-claim or to obtain a declaratory judgnene: may
nove with or without supporting affidavits for e summary jusgaent 1h the
party"s favor upon allo any part thereof. A party secking recovery,
F this rule may seek rellef at any tine after the expiration of 20
Gays fron the comencenent of the action of after the service cfs
notion for summary judgment by the edverse party, provides, however,
that's motion seeking relief under this rule shell te served end filed
no less than 50 days before the date of the trial unless geanted
Permission by the court and for good cause show
(©) For defending party. A party against whom @ claim,
counterclaim, of cross-claim is asserted or a declaratory judgment is
Sought nay move with or wiehost supporting affidavits for a sumsaty
judgment in the party's favor as to all or any part therect, provided,
however, that & notion seeking relief under this rule shell be filed ond
served no less than 50 days before the date of the trial unless grented
Permiscion by the court and fer geod cause shown.
(©) Motion and proceedings thereon. The motion shall be filed and
served not less than 16 days before the date set for the hearing. The
aeverse party may file and serve opposing nenorandun and/or affidavies
hot less than € daye before the date set fer the nearing. The moving
perty may file and serve a reply or affidavit not less than 3 days
Before the date set for the hearing. 2h
i atv, chow that there is ne agnuine tear ae seo ee
a cma
Sunmary judgment, interlocutory in character, may De rendered on the
issue of liability alone although there is 4 gendine issue as to the
snount of danages:
(Emphasis added
‘**4 FOR PUBLICATION *##
‘The hedge was not a contributing factor in the
sccident. “There is no genuine issue of material fect and
Sunmary judgment is proper.
(Bmphasis in original.)
On December 10, 1999, Thronas filed the following
joinder in the County's MsJ:
COMES Now... thronas{,} . .. by and through his
Tegal counsel in this action,
a } Beses his
at etbceeeer oie
ee eee eee
(Emphases added.)
On January 7, 2000, the Appellants filed a statement of
Flo position regarding the County's MSJ, stating as follows:
Cones now... (the App by and through their
attorneys, ... land) hereby state that they have ne
Position as to (the County's) Motion for Summary Judgment,
hich was filed December 7, 1993, and is scheduled for
hearing before the Honorable George NM. Hasuoka at 130 an,
fon January 11, 2000.
On January 11, 2000, the circuit court conducted a
hearing on the County's Msg:
HE CLERK: Civil number 96-0127, Benjamin Quervbin,
gt st.y versus Charles Lee, st ali, Third-party Defendant
County of Kauai" notion for suamaty jodgmene.
iciaini+s comes): Your senor, 1 have nothing to add
co our'govten
(Finoths comss.|: Your tenor, nor ay Jeinder.
Unereants® coon Warne Saket ne Podie Tees Your
TE COURT: Fine. Under the circumstances{,) the
circuit court will grant the eeticn
On January 28, 2000, the circuit court entered an order
granting the County's MSJ, which provides in relevant part:
led a statenent of no
[the Bppellante), having £4
position te the County's motions Thronas, havi
fled 6 soinder in the County's motion, ‘and the feireait
clourt having reviewed the nencranda subaitted, arguments of
counsel, and being apprised in the premises,
°
**# POR PUBLICATION *#*
IT 15 HEREBY ORDERED, ADJUOGED AND DECREED that (the
County's HSJ] is nereby granted
On February 25, 2000, the circuit court entered an order granting
Thronas’s MSJ via joinder:
THE HEARING on (the County's) Motion for Summary
Judgment on the
A ‘nd the
Joinger in said Notion by Thronas{] cane on £0 be
heard on {(Jenvary 11, 2000] | | \'. Present st said hearing
were. . legal counsel forthe ‘Countyiel = + legal
Counsed toe Thronas, and... legal Counsel for (the
Appellante].” Based cn the records of this scticny and the
written and oral submissions of said parties, te dnclude
[the Agpelionte’) taking of no position on seid Motion,
‘HIS COURT HEREBY ORDERS Summary Jodgment be granted
in favor of... Thronae et
Acpedlantsl
(Emphases added.)
on March 6, 2000, pursuant to HRCP Rules 7 (2000) and
60(a), the Appellants
granting Thronas’s MSJ via joinder (hereinafter, “the motion to
led a motion to set aside the order
set aside”) and a memorandum in support of the motion, In the
memorandum, the Appellants asserted in relevant part:
‘This Notion is brought pursuant to HCP Rule 60(a) to
correct an oversight that occurred uhen the (circuit elourt
entered [the order granting Thronas's HS sia jeinder],
filed herein on February 25, 2000...
This order must be set aside fer & very simple reason:
hs" shoicated above, at no tine dic ‘Thronas ever
file a Motion for summary Judgment ageinst [the Appellents],
and thos the [the orger granting Threnas's HS vis joinder)
is clearty a nollity whieh is completely develd of any basis
Sn the record. Accerdingly, it should be set acide 20 there
is no confusion in the record in later proceedings
ielappears that the genesis of this error wa
‘hronae" (2) counsel’ 13°" the
County's notion againet hs own client, the County's motion
against hic client was somehow transformed into his client's
notion against the [Appellants]. This, of course, is not
10
‘FOR PUBLICATION ***
true. Whatever the reason for this mistake, it ta
Fespectfully subaitted that the reccrd in this cage must be
Glarified and the [order granting Thronas’s Had via Joinder)
(Emphasis in original.)
On March 16, 2000, the circuit court entered judgment
“in favor of the County . . . and against all parties as to all
claims asserted in the . . . action against the County . ”
on March 16, 2000, Benjamin, through his separate
defense counsel and as counterclaim defendant, filed a joinder in
the Appellants’ motion to set aside
on May 22, 2000, Thronas filed a memorandum in
opposition to the Appellants’ motion to set aside.
on May 30, 2000, the circuit court conducted a hearing
on the Appellants’ motion to set aside. During the hearing, the
circuit court engaged the Appellants’ counsel in the following
colloquy:
THE COURT: Let me a9k you sone questions. Are you
saying that there must be a motion before this (clout...
can grant a motion for susmary Jucgnent?
TAFPELLANTS" COUNSEL] + Under the procedural
circumstances of this case, your Honor, Yee, that would be
Correct, in that there was no adversarial positioning
Between’ the (Appellants) and the (County)
THE COURT: Don't you think it would be inconsistent
‘ Sront 2 nerien fer are tedaaane scene
TAPPELLANTS" COUNSEL}: Well, Judge, I think what
been created is this, your Honcr. ‘With no standing on the
port of the [appellante) in that thiro-party complaint = we
had not amended over against the (County). With no standing
fo respond, to answer in any fashion, the defense counsel
then turns around and lays over end says? Well, we Join Sn
the potion against ourselves. In ether words, they'Fe s+.
joining camps with the County.
‘Onder these circunstances, sy
they've attempted te circumvent any such
snare 4 * ‘that they’ ve
done is =~ if the (eiveuit ejourt would allow an aneiogy te
be nace, in essence, we have Plaintiff/Defendant, one
aa
*** FOR PUBLICATION *#+
lawsuit, the Defendant/Third-Farty Defendant in a separate
claim.
think what the defense is attempting to do is roll
over on the second claim and then say: Uh-huh, we can take
this summary judgnent here and apply it in the first case,
when, in all actuality, Judge, we had two seperate claias
Now, the fact cf the matter is, we believe that there
fare very good reasons why they did not want to file a direct
notion for summary judanent against the [Appellants]. se
as felly auare, because ve had submitted the very lengthy
settlement booklet to [Thronas’s counsel] and te Ne. Thrones
indicating whet our claims were, what cur causes of action
we Well as the fact that we have a highway engineer
along with a hunan factors expert who are ready and willing
to testify with regard to. - a causal connection between
the violation of the ordinance by Mr. Thkonas of that heage
height and what role that played in the accident.
‘The fact that he concedes on his action with the
County should in no way [affect the. . + the separare
claim that we have against (Thronas], your fionor. Your
Honor, we believe that there's no proper authority. He hes
not cited any ceses which (are) on point because there is no
Taw on thie points
‘The cases that he cites have to do with parties te
zs :,an ection, parties that are in an dverseriel
position. There is not a single case indicated where they
are allowing. - . an order for summary =
‘THE CouRT: ‘se you didn’t .- « file a claim against
then then?
IAPPELLANTS' COUNSEL]: He... never filed @ claim
against the County. There was never & third-party complarnt
‘THE couRT: So ~
(APPELLANTS" CouNSEL): -- we never anended it over
THE COURT: -= but upon a motion of any... partys
this [court can consider all motions of sunery Judgment
fend consider the “= even the opposing party whe sutaice no
Rotion, as far as the [eireuit cloure fs concerned, and can
grant unmary:judgnent as to whatever issuer it fesles «+
VAPPELLANTS" COUNSEL]: In an edversarial situation,
your Honor, that's absolutely correct, and that’s what the
Gace law basically says.
But when you have two separste claims, your Honor,
where, Sf you were te take case che, seperate st from case
two, ihe sumary judgment in case tuo cannet apply in case
cone’ because the parties have not had an cpportenity
first, they . ss Jack standing to's. . come inte’ case two,
and they have not had the opportunity to answer end te
Fespond and to have their position filed with the [oircuit
clowrt. “And that’s exactly the situation that ss. has
been created here, your loner”
‘THE. CouRr: m e
(APPELLANTS" COUNSEL] Te eSrrect, your Honor
But there are seperate claine
22
(Emphases
FOR PUBLICATION ***
added.) After entertaining argument by Thronas’s
counsel, the Appellants’ counsel responded as follows:
IAPPELLANTS’ COUNSEL): Judge, just in response to the
argunent that was posed here, your Honor. when (Thronas" =
Counsel} speaks in terms of hotice, when he speaks in terms
of Joinder, and when he speaks in terns of no response, “your
Honor, what he doesn't indicate and what he has impliedly
conceded in is own memorandum is the fact that we
Gould not respond, we weren't party to the third-party
action, and we had no standings We... were not in'@
position te respond,
Defense counsel seems to be of the opinion that by
taking back the oor route he can spply it, when the only
way in which to have a summary judgment would be to go by
Way of the front door, wich ig to file against ue because
‘Our ony complaint is’against [Thronas]. We have no clais
against the County, and the County never filed a motion for
Sommary judgment against the (Appellant).
Yne County's motion fer summary Judgment was only as
to (Threnas], because [Thronas] was the only party that had
THE COURT: You're repeating the sane axgunents agsin.
(APELIANTS" COUNSEL]: That's correct, your Honor.
THE COURT! Okay. (The circuit clourt will Look at it
fone more tine, will take it under advisement, and inform
Sounsel of s2 decision.
on August 14, 2000, the circuit court entered an order
denying the Appellants’ motion to set aside.
judgment,
on February 7, 2001, the circuit court entered final
which provided in relevant part as follows:
Judgnent is entered in favor of [Thronas} against (the
Appellants) pursuant to the (order granting Thronsa’ s MSI
vie joinder)
Sadgnent is entered in favor of (the County) against
Thronas with respect to Thronas’ [e) third-party claims
pursvant to the [olrder [g}ranting (tne County's #59]
@ntered nerein on January 26, 2000 and the Judgrent entered
herein on Nazch 16, 2000
on February 14, 2001, the Appellants timely filed a notice of
appeal.
TT. STANDARD OF REVIEW
ie review the circuit court's grant er dental of
sunmory Sudgnent de novo. Hawai'i Comunity Federal Credit.
a3
‘#4 FOR PUBLICATION #++
M4 Hawas"s 213, 221, 11 P.34 1, 9 (2000)
‘The standard for granting e notion fer summary judgment 48
settled
[Slumary judguent is appropriate it the
pleadings, depositions, answers to interrogavories,
and adnissions on file, together with the stfidavice,
Sf any, show that there ie no genuine issue aa to any
materis1 fact and that the moving party i= entitied to
Judgment asa matter of law. Atact is material tf
Proof cf that fact would have the effect of
establishing or refuting one of the essential elenents
of @ cause of action or defense asserted by the
Parties. The evidence mist be viewed in the light
ost favorable to the non-noving party. fn other
words, we must View a1! of the evidence and the
infertnces drawn therefrom in the light most favorable
to the party opposing the motion.
Ad, (citations and internal quotation marke omitted) .
Durette v. Aloha Plastic Recveling, Inc., 105 Hawai'i 490, 501,
100 P.3d 60, 71 (2004) (quoting Simmons v, Puy, 105 Hawai'i 112,
117-18, 94 P.3d 667, 672-73 (2004) (quoting Kahale v. City and
County of Honolulu, 104 Hawai'i 341, 344, 90 P.34 233, 236 (2004)
(quoting SCI Management Corp, vs Sims, 101 Hawai'i 438, 445, 71
P.3d 389, 396 (2003) (quoting Coon v. City and County of
Honolulu, 98 Hawai'i 233, 244-45, 47 P.3d 348, 359-60 (2002))))).
A
On appeal, the Appellants, inter alia, “vigorously
dispute . . . the granting of sunmary judgment in favor of one
-mov: Ct mov ty, without notice
and an opportunity to be heard,” insofar as “RCP [Rule] $6(c) [,
see supra note 2,) and due process protections do not permit
mmary judgment in such circumstances.” (Emphasis in original.)
a4
*** FOR PUBLICATION *#*
We agree with the Appellants.
In Clarke v, Civil Service Commission, 50 Haw. 169, 434
P.2d 312 (1967), the circuit court addressed an appeal from
several administrative hearings before the State of Hawai'i Civil
Service Commission (hereinafter, “the Commission”) upholding the
decision of the State of Hawai'i Director of Institutions to
terminate the appellant's employment with “a State institution
for the treatment and care of the mentally retarded.” Id. at
169-70, 434 P.2d at 312-13, “The trial court, at a pre-trial
conference, instructed the parties to file memoranda on points of
law. After a review of the memoranda filed by the parties, the
court decided to treat the [Commission’
} supplemental memorandum
as a motion for summary judgment and thereupon dismissed the
appeal.” Id. On secondary appeal to this court, we reasoned and
held as follows:
Aa a generat proposition, summary judgment should be
granted where there is no genuine issue as to any materia
FS Sloe’ party ie eneitied te 6 Suggnent a matter of
Jaw. “HRCP Rule 56(b) (e) a8 Haw. 32,
35, 396 Pe2d 43, S67, Browne ge aUGRE PARSE Ee, “te haw, 365,
3b, 355 Pid Ibs, 161; Zemritery v Arneson, G4 Haw, 343,
SS], 354 Piza $81, 986.
‘The fecord on anced] shows that the court entestained
aise felted to allege that there was no genuine iaeve
@ material fact and that the appellee was entitied £0 &
Sudguent as a matter of low.
The quection whether @ sumery disposition of # cause
pay properly follow s pre-trial conference though neither
party has neved for summary jeagnent har been answered both
in the affirmative and the negative by federal courts which
operate under a provision of the Fedefal Roles of Civsl
Procedure identical to Rule Se of the Hawaii Rules of Civil
Procedure
ower and aithoriry to grant suneary sudanens cua snonee,
as
‘** FOR PUBLICATION ##4
Be _aive fore pearing betixess hat the
fearing to fact be held on she-aateer
fetes ettred aceeaeltiat sn cedera, course
(Federal Rules of Civil Procedure
‘Seant summary iudanent.
(ERGPT Radel Se; Hash ws Sisson, 30) F.2d 126 Sth cir.
1962)
Bu, 313 Fad 493 (Sth City 1967
Id, at 170-71, 434 P.2d at 313 (emphases added) (some citations
onitted).
In Jensen v. Pratt, $3 Haw. 201, 491 P.2d 547 (1971),
we elaborated on the principle set forth in Clarke. Jensen
concerned an appeal alleging that the circuit court erred in
entering summary judgment in favor of the defendants and against
the plaintiffs only upon written memoranda submitted by both
parties (i.e, without an oral hearing before the circuit court).
Ady at 201-202, 491 P.2d at 548. More specifically, the
plaintiffs maintained on appeal “that the failure of the trial
court to comply with the notice and hearing requirements of HRCP
Rule S6(c) is reversible error.” Id. at 202, 491 P.2d at 548.
Jensen reasoned and held as follows:
fen aes te
Se lasalian tects Induetsiee Innes St Wow Dies wee Pie
282, rehearing denied, st How. 352 11963). ‘ihe requizenent
of tngwing tha the error Judicial ctene tron HECE
foie el: "The
art at every stage of the proceeding must
ae
‘+ FOR PUBLICATION *#*
disregard any extor which does not affect the substantial
Fights of the parties.”
a, So Paw. 168, 434 F-20312 (196717 Enoche w Siaaen,
Sor F-24128 (Sth Cir. 1962). This reeult 12 further
dictated by the following specific language of HRCP Rule 78
which, we think, sets forth the exclusive procedure for
Giepetsing with’ oral hearings se required under our Roles of
Civil Procedure:
To expedite its business, the court may make provision
by rule or order for the subeission and determination
Of notions without oral hearing open beief written
Statenents Of reasons in support and opposition,
Ide at 202-03, 491 P.2d at 548 (emphases added).
It is noteworthy that the Intermediate Court of Appeals
(Ica) has held that “violation of the notice requirement does not
automatically result in a reversal,” insofar as “Clarke's progeny
holds that ‘absent a showing of harm, the failure of the trial
court to comply with the requirement of ten days’ notice of
hearing set forth in HRCP Rule $6(c) is not reversible error.”
Kav, City and County of Honolulu, 6 Haw. App. 370, 372-73, 722
P.2d 1043, 1045 (1986) (some emphasis added and some in original)
(affirming summary judgment against the appellants because the
appellants “failed to demonstrate prejudice or harm as a result
of the [circuit] court’s . . . fail{ure] to give [them] the
required (HRCP) Rule $6(c) 10-day notice of hearing,” inasmuch as
the appellee's written MSJ provided the appellants proper notice
and the appellants “did file a memorandum and other papers in
a7
‘#8 FOR PUBLICATION ***
opposition to the (MSJ] and had an opportunity to be heard”); see
alse Shelton Engineerina Contractors, Limited v, Hawaiian bac.
Industries, Inc., 51 Haw. 242, 246, 456 P.2d 222, 225 (1963)
(affirming summary judgment against the appellant because,
although the appellee “did not comply with the literal
requirement of [HRCP Rule 56(c)]” by filing the MSJ “only five
days before the date set for the hearing,” the appellee “complied
substantially with the notice requirement of the rule as
expressed in Clarke,” such that the appellant “had notice of a
hearing and had the opportunity to be heard” and could “not
demonstrate[] [that] he [was] harmed by not having @ full ten
days of notice”).
Moreover, based on an amendment of the Rules of the
Circuit Courts of the State of Hawai'i (RCH) Rule 8 (2000),? the
ICA has established an exception to the bright line rule set
forth in Jensen, 53 Haw. at 202-03, 491 P.2d at 548, that a
circuit court’s failure to comply with the oral hearing
requirement of HRCP Rule 56(c) is “harmful error per ge.” In
Wilder v. Tanouve, 7 Haw. App. 247, 753 P.2d 816 (1986), the ICA
addressed an appeal alleging that the circuit court had erred in
granting sunmary judgment against the appellant without providing
him an oral hearing on the appellees’ MSJ. Id, at 251, 491 P.2d
at €18, The circuit court had filed an ex parte order stating
that it would “rule on appellees’ MSJ) without oral hearing and
based solely upon the records, files and written arguments of the
*** FOR PUBLICATION *#
parties,” but allowed the parties to “submit additional memoranda
or evidence in the form of affidavit or other writing within
Ad. at 249, 491 P.2d at
819 (internal citations and quotation signals omitted). The ICA
thirty (30) days of the . . . order.
reasoned and held as follows:
ie start our analysis by examining the [HRCP). RCE
RCP Rule 7¢ provides in
Bereinent part:
‘To expedite its business, the court may make provision
by Tule or order for the’ submission and determination
Of motions without oral hearing upon brief writees
Statenents of reasons in support and opposition.
in Jengen vy. Pratt, supra, our suprene court stated that
Rule 78 "sete forth the exclusive procedure for dispensing
With oral hearings” on summary judgment motions. Za, at
202, $91 P.od at 348.” Because there was “neither # Tule nor
fan order generally dispensing with the requirement of oral
earings on motions for summary Judgment ,)” [Jensen] held
that the failure to hold an oral hearing wae reversible
error. 2d. at 202-03, 481 F.2d at 548. Four years earlier,
Sn oil 8 ‘supra, the [supreme] court
had hela that the trial court reversibly erred when it
Granted sunnacy jodgnent on its own notion without notice
Snd without a hearing on the matter. (*]
« RCC{H) Rule 8 reads in relevant part: “the
court n'its own motion may order any matter submitted on
the briefs and/or affidavits, without oral argument.” this
sentence was incorporated into RCC[#] Rule & by sn amendment
Adopted by the supreme court on June 22, 1963 to be
effective duly 1, 1983. Thus, Role € fille the void noted
in Jensen ond specifically allows the circuit court to
Consider motions, including those for summary judgnent,
without oral argument.
‘The Order Adopting New Procedures is an order issued
by the administrative judge of the First Circuit Court. it
Sees not and cannot sbyogate ACC(H) Rule £ which hes been
adopted end anended by the suprene court. The Order
Adopting New Procedures serves ss guideline for the Firat
cizeaie court
+ the 1A neted that
tlhe federat cour’
necessary on 2 nc
Gecised cn weiteen
generally hold that an oral hearing se not
in for summary Judgment and that the notion can be
WUoniscions. ee 10k C. Wright, A, Hiller & M. Kane,
272001 (2963). See, aa,
Esderal Practice and Procedure: Civil 2d
piled Then core us ackay, e55 F.2d tse (stn cir. 1983)
Wilder, 7 Haw. App. at 252 n.2, 753 P.2d at 620 n.2.
as
‘#4 FOR PUBLICATION
Here, porsuant to RCC(H) Rule & the lover court
entered its <. . ex parte order that it would rele on the
Rotion for simnazy’ judgment without oral hearing, The
order, moreover, expresely provided for the submiseton of
Rencrande, affidavits, and other evidence by the parties
within a stated period
Aecorgingly, having discretionary authority which it
exercised, the lower court did not err in deciaing the
wotion for summary judgnent witheut an oral hese ng,
Id, at 251-52, 753 P.2d at 819-20.
In the present matter, the circuit court sua sponte
entered summary judgment in favor of Thronas and against the
Appellants, despite the fact that neither Thronas nor the
Appellants had moved for summary judgment against the other,
without substantially complying with the notice and hearing
requirements of HRCP Rule 56(c). As recited supra in section I,
the County responded to Thronas’s third-party complaint by filing
an MSJ only against Thronas; the County’s MSJ does not name the
Appellants. Thronas filed a joinder in the County's Msg, but did
not expressly move for summary judgment against the Appellants.
Thus, in contrast to Kay and Shelton, the Appellants had no
notice that Thrones was seeking sunmary judgment against then
Precisely because he had not, in fact, moved for summary judgment
against them. More importantly, the circuit court gave the
Appellants no notice that it was treating Thronas’s joinder as an
MSJ against then. Being unaware that Thronas’s joinder could
result directly in the entry of sunmary judgment against them on
their complaint, the Appellants were obviously and actually
preiudiced by the lack of notice.
With regard to the hearing requirement of HRCP Rule
86(c), although the circuit court did conduct @ hearing on
January 11, 2000, the transcript of the hearing was entitled,
20
*** POR PUBLICATION #44
“Third-Party Defendant County of Keuai’s motion for summary
judgment,” which accurately reflects the subject matter of the
Proceedings. The circuit court neither conducted a separate
hearing on Thronas's joinder nor addressed Thronas’s joinder as a
motion for summary judgment against the Appellants at all. By
contrast to Wilder, therefore, the circuit court did not exercise
its discretionary RCCH Rule 8 authority to forego an oral hearing
on Thronas’s joinder in the County’s MSJ, which did not target
the Appellants’ complaint in any event, and the circuit court's
failure to afford the Appellants an oral hearing on a motion for
summary judgment directed against them “constitute(d] harmful
error per se.” Jensen, 53 Haw. at 202, 491 P.2d at 548.
Based on the foregoing, we hold that the circuit court
erred in sua sponte entering the February 25, 2000 order granting
‘Thronas's MSJ via joinder, which treated the joinder as a
distinct motion for summary judgment against the Appellants,
without providing the Appellants notice and an oral hearing. See
Slarke, $0 Haw. at 170-71, 434 P.2d at 313; Jensen, 53 Haw. at
202-03, 491 P.2d at 548.
B. o 3 nt
In their points of error on appeal, the Appellants
allege only that the circuit court erred in granting summary
judgment against them and in favor of Thronas. The Appellants do
not challenge any of the following: (1) the January 28, 2000
order granting sunmary judgment in favor of the County and
against Thronas; (2) the March 16, 2000 judgment “in favor of the
2
444 FOR PUBLICATION *#+
county . . . and against all parties as to all claims asserted
against the County,”; and (3) the August 14, 2000 order
denying the Appellants’ motion to set aside. Thus, as Thronas
argues, “(t]he judgment entered on the order granting (the
County} summary judgment has not been appealed, is not subject to
appeal, and thus constitutes the law of the case.”
66 Haw, 388, 396, 668 P.20 157; 162 (1383)
Law of the case does not, however, nave the:
inexorable effect of nea iudicata and does not
Preclude the court fron reconsidering an earlier
Foling if the court feels that the ruling wae probably
Grroneous and ore harm would be done by adhering te
the earlier rule than from the delay incident toa
Peconsideration and the possible change in the rule of
law to be applied.” 2 Moore,
(612.14) pe 2266, tt
Sables 2. Siuches, 48 Haw. 370, 382, 405 P.24 772, 779
(iSee}7 “Tn fact, st has been noted that, Zo1ona\ag a trial
Sourt fetains durtsdiction, it “alvave has the power to
Eequamine, nodiiv. vacate, correct and reverse ite oricr
‘ulnar ang ordere-” In te Solonat fartners, Lp, 221 8.R.
143, 156 (e.A.F-2a Cir. 1999) (rejecting an argunent thet
Judge was bound by Yaw of the case cateblished by his own
peice, cron crdes) (citing, datee alla
, Fereara &-lantna oe
Bluares, 121 F.2d Sei, $83 (ae Cir 1997); Gniteg Stater ys
Eoeabite, 677 F.20 274, 178. (2a Cir. 1989).
92 Hawai'i 432, 441, 992 P.2d 127, 136 (2000) (emphases added) .
In the present matter, notwithstanding that Thronas did
not oppose the County's MSJ, the sole basis for the County's
motion was that “the hedge was not 4 contributing factor in
Live. 2 legal cause of] the accident.” (Emphasis in original.)
The circuit court’s January 28, 2000 erder granting the County's
MSJ therefore ruled, of necessity, that “the pleadings,
depositions, answers to interrogatories, and admissions on file,
#8 FOR PUBLICATION *#*
together with the affidavits, if any, showfed) that there [was]
no genuine issue as to” whether the hedge was 2 legal cause of
the accident, such that the County was “entitled to a judgment as
a matter of law.” HRCP Rule S6(c), see supra note 2; see also
Durette, 105 Hawai'i at 501, 100 F.3d at 71 ("{S]ummary judgment
is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.” (Internal citations and quotation signals
omitted.)).
Further to the foregoing, although the Appellants
assert in their opening brief that “[t]he motion by the County
against Thronas should have had no effect on the [Appellants]
because [they] were not [parties] in the third-party action,”
they had an overwhelming interest in contesting the County’s MSJ.
As recited supra in section I, the Appellants’ complaint alleged,
Anter alia, (1) that “[Thronas} negligently maintained a hedge at
the corner closest to said intersection which far exceeded the
three feet height limitation imposed by law and thereby
obstructed the vision of motorists and caused a traffic hazard”
and (2) that “(t]he combined negligence of [Lee and Thronas)
directly caused the [subject] collision.” By filing their
January 7, 2000 statement of no position regarding the County's
MsJ and by failing to oppose the MSJ at the January 11, 2000
hearing, the Appellants effectively conceded that the hedge was
23
‘*** FOR PUBLICATION *#4
not a legal cause of the accident.’ Me therefore hold, pursuant
* ,he Appellants have failed to preserve any objection to the
bility of the attachments to the County’: MSJ against Thronas. This
Gourt recently abserves in u y es.
24896 and 24871, slip. op. (haw- Mazch 29, 2005), as followes
“(T)he role in this jurisdiction... prohibite an appellant from
complaining tor the first time on appeal of error to which he has,
acquiesced or to which he failed to object.” Skuhara w, froida, $1 Haw.
253, 255. «6 P.zd 228, 230 (1969) (citations omitted)? Beg alae MRS
§ 41-2 (2004) (The appellate court. . « need not consiaer a point
that was not presented in the trial court’ invan appropriate menkere"){
Grate y. Eeebles, 76 Hawai's 207, 294, 093 P.24 136, 145 (1958) 7 hewas'd
Rules of Appellate Procedure (HRAP) Rule 28(b) (4) (144) (2004), (noting
That an appellant's opening brief shall state “where in the record the
alleged error was cbjected to or the manner in which the eileged error
was brought to the attention of the court oF agency.)
There are sound reasons for the rele. It is unfair to the
trial court to reverse on a ground that ne one even
suggested might be error. ‘It is unfair to the opposing
Party, who aight have met the argument not made below.
Finally, it does not comport with the concept of an orderly
and efficient method of adninistration of justice.
ovamate Fame, inc. v. United Agri Prads,, €6 Hawas"i 214, 248, 948
Pidg'd0ss, 1089 (1997) Tettation omitted) =
Ide, slip. op. at 10-12 (brackets in original). In the present matter, ae in
Exlce, the Appellants dia not object in the cizcuit court to the adeisaibility
Of the police report and witness stetenents that they now challenge on appeal
See Etice, slip op. at 11-12.
Exiée further noted as follows
[TIhis court has previcusly declined to address evidentiary challenges
to affidavits relsting to sumary sudgnent motions without proper
objection before the cirevit court. See, ged,
} 92 Hawai'i 398, 408-09, 422-25 n.13, 992 Pad 83, 10S
O¢,"127=16-n.18 (2000) (noting ‘thet, because the appellant failed te
raise on evidentiary objection to an affidavit supporting @ menorandum
in opposition to a action for summary sodgment, [the appellant), waived
wt iezue.” (Citation onitted)); Aceba v, Gen, Tire, inca, ait
1, 986 P.2d 268, 299 (1999) (atating that, because the appellant did
not object t6 the appellee's aftidavite in support of ite notion for
Summary judgnent, “[the appellant) i= precloded from challenging tne
adission of {the appellee)"s pleadings and affidavits on appeas.”
(citation omitted)... . + (T)he masority of federal courts that have
interpreted Federal Rules of Civil Procedure (FRCP) Rule S6le). (1961)
which is identical to the Hawai'i role governing effigavits end exhibits
in support of summary judgnent motione, have held that # party whe fails
fo object to inadnissible affidavite and exnibies waives the Fight to de
soon appeal. "Seg, gaGa, - . - Inge Zeltronics Servs, inca, Jee F024
386, 180 (2d cir, i988). |. | “Ap the Second Circuit Court of Appeals
{eont inued.. +)
24
‘#8 FOR PUBLICATION *#*
to the “law of the case” doctrine, that the circuit court may
choose on remand, in the face of @ motion for sunmary judgment
against the Appellants filed in compliance with HRCP Rule 56, to
enter summary judgment in favor of Thronas and against the
Appellants, because to rule otherwise would “disturb” (1) the
unchallenged January 28, 2000 order granting the County's MSJ and
(2) the unchallenged March 16, 2000 judgment in favor of the
County. See Chun, 92 Hawai'i at 441, 992 P.2d at 136.
On the other hand, the circuit court “always has the
power to reexamine, modify, vacate, correct and reverse its prior
S(.. cont ined)
statea:
(Tle set aside a summary judgment under these circumstances
would pernit a party to make no response, oF only a limited
Fesponse, to a movant's allegedly cefective affidavite, with
the result that the notion would either be defested oF later
Set aside, In the absence of a gross miscarriage of
justice, ot present here, such g result ie inpermiseible
Parties nay not sandbag the court in this fashion,
selectively opposing the peints they choose, and on appeal
Glaining that the unopposed points were defect ively
Presented and required no response
Ince Teltronice Serve inc, 762 F.2d at 192.
and some in original) (elipsis
Exice, slip op. at 12-14 (sone brackets addes
Points added). rice therefore held “that challenges to’. . + papers
[relating to sunmary judgment metions,] raised for the fist time on appeal.)
ste waive dosent pladn fever, 7” ag ae 34.
in ent matter, because the Appellants had every incentive, not
to mention’s full opportunity, to object te the sdnsesibility of the police
Eeports and witness ctatenents in the circuit courts coneiderstion of the
County" e Ss, we do not review the orders granting sumeary Judgment for plats
error, Thus, the Appellants’ “challenges to [the police Fepores,] raised for
the first tine on appeal(,] are waived 1
Nevertheless, in their opening brief Gn’ appeal, the Appellants assert
that “the evidence, even if considered, did got establish the hedge was not 4
factor.” (Esphests in original.) the Appellants have waived this argumest.
however, because (1) they nave conceded in their opening brief that. “Sudse
Masuoks’was correct in granting the County's notion against Thronge” and (2)
they have not raised as pointe of error either (a) the Jansary 26, 2000 order
Granting summary judanent in favor of the County and against Thrones or (tb)
the March 1€,, 2000 sudgrent in favor of the county
25
*** FOR PUBLICATION
rulings and orders.” Id. at 441, 992 P.2d at 136 (internal
citations and quotation signals omitted). But on remand, absent
a finding “that the ruling was probably erroneous and more harm
would be done by adhering to the earlier rule than from the delay
incident to @ reconsideration and the possible change in the rule
of law to be applied,” id, at 441, 992 P.2d at 136 (internal
citations and quotation signals omitted), the “law of the case”
doctrine would militate in the direction of the circuit court
granting sunmary judgment in Thronas’s favor. In any case, we
leave this determination to the discretion of the circuit court.
IV. CONCLUSION
In light of the foregoing analysis, we (1) vacate (a)
the February 25, 2000 order granting Thronas’s MSJ via joinder in
Thronas’s favor and against the Appellants and (b) the circuit
court's February 7, 2001 final judgment and (2) remand this
matter to the circuit court for further proceedings consistent
with this opinion.
on the briefs:
Rick J. Eichor, of Price, or
Okamoto, Himeno & Lum
Ryan E. Jimenez
for plaintiffs-appellants SecGen
Benjamin Querubins
Carolyn Taketa, as
Special Administrator Pease Cnty anen
of the Estate of
Suanite Querubin
Kone suai by
Warren C.R. Perry
for defendant-appellee
Olaf Thronas
26
|
494aef40-b158-47cf-b657-45b6162d96c6 | State v. Chapa | hawaii | Hawaii Supreme Court | LAW LIBRARY.
[NOT FOR PUBLICATION IN WEST'S HAWAll REPORTS AND PACIFIC REPORTER #
No. 25646 in B
STATE OF HAWAT'T, Plaintiff-Appellee, 5
JESUS MARIA CHAPA, JR., Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(Case No, TD 1A of 01/08/03)
Levinson, Nakayama, Acoba, and Duffy, JJ.)
(By: Moon, C.J.
Jr. ("Chapa"),
Defendant-Appellant Jesus Maria Chapa,
appeals from the first circuit district court’s ("district
court”) January 8, 2003 judgment,’ convicting him of the offense
of operating a vehicle under the influence of an intoxicant, in
violation of Hawai'i Revised Statutes (“HRS”) § 2918-61(a) (1).
Chapa presents the following two points of error on appeal: (1)
the district court erred by permitting Honolulu Police Officer
Sean Kaipo Nahina ("Officer Nahina”) to testify as to the results
(°SPST”) inasmuch as the
of a standardized field sobriety test
and (2) the
foundation for such testimony was insufficient
district court erred by permitting Officer Nahina to testify as
2 the Honorable Fa‘auuga To'ote'e presided.
+ uns § 2918-61(a) (2) (Supp. 2002) provides that
[a] person connits the offense of operating a vehicle under the
Influence of an intoxicant if the person operates or assunes
actual physical control of 2 vehicle [w[hile under the
Influence of alcohol in an amount aufiicsent to Ampair the
person's normal mental faculties or ability to care for the person
and guard against casualty(.]
[NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
to the contents of a National Highway Traffic safety
Administration (“NHTSA”) training manual ingofar as the manual
was not offered in evidence and was not available to the defense.
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the argunents advanced and the issues raised, we hold that: (1)
although the district court abused its discretion by permitting
Officer Nahina to testify that (a) he observed the onset of
nystagmus prior to 45 degrees,* and (b) Chapa “failed” the WAT
> ie agree with Chaps that an inproper foundation was laid for
Cfficer Nahina’s testimony thet he observes nystagmus "in both eyes for each
test.” The NATSA manual expressly instructs police officers to *(p)ractice
you can consistently estimate 45 degrees. Check yourself monthly with
wT 1S" square tenplate of cardboard with a diagonal line drawn from on
corner to ancener to denark 45 degrees] to be sure that your accuracy has been
Sustained.” state vee, 90 Hawai'd 225, 244 9.10, 978 P.2d 191, 210 0.10
(app. 1999) (bracket in original) (emphasis in original) (citing 1984 NHTSA
1 '§ 10.99(2], app.
Sti 10-92), "Additionally, Chaps submited into evigence an excerpt from the
1984 NATSA student manual, which explains why the measurement of a 45 degree
angle is vital: “since the extent of impairment 1s indicated by the angie at
hich aystagmos begins, you will need co learn now to estinate this angle
“particularly the angie of 4S-degrees, since shat is the crucial oolnt for
astinsting BAL.” (Emphasis acded-) Officer Nanina’s failure to Fostanely
Serify the accuracy of Nis messurenent of 2 45 degree angle calls into
guestion his conclusion that Chaps exhibited the onset of nystagmus prior to
‘Evdesrees, and it precludes the conclusion that that portion of the HON test
was Speoperly administered.” gee Luo, at 244, 978 P.26 at 210 ("Before HCN
fest results can be adniteed into evidence in's particular case, it must
be shown that (1) the officer administering the test was duly qualified to
Conduct ‘the test and grade the test results, .. and (2) she test was.
-*) (Internal citations omitted.)
(Emphasis added]. Therefore, we conclude that the district court abused its
Giseretion by permitting Officer Nahina to testify as such. See State m
Herrer, 95 Hawai'i 409, 425, 23 P.3d 744, 760 (App. 2001), zeconsigeration
95 Hawai'i 409, 23 .3a 744 ("In'the absence of foundational testinony
Establishing conformity to the NNZSA training standards, we conclude that the
ict court abused its discretion when it allowed [the police officer] to
Sify about (the defendant’ s] perforeance on the WGN test.)
2
[NOT _FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
and OLS tests,‘ the errors were harmless beyond a reasonable
doubt;? and (2) Hawai‘! Rules of Evidence (*HRE”) Rule 1002 did
not require the prosecution to produce the NHTSA manual, insofar
as Officer Nahina’s testimony regarding the manual was a
collateral matter falling within the ambit of HRE Rule 1004(4).7
‘the excerpt from the 1984 NHTSA student manual submitted into
evidence by Chapa requires chat the WAT and OLS tests be adsinistered on level
Ground. Itasmach as both the prosecution and Chapa stipulated that the HAT
Ses OLS teste were administered on ground with « slope of approximately 25
Gegrees, we cannot conclude that WAT and OLS tests were properly aaainistered.
Thusy the district court abuses its discretion by permitting Officer Nahina to
testity that Chapa “failed” those tests. See Fezrer, 95 Hawai's at 429, 23
pibg-at Tet ("(1]t se permissible for a police officer to testify as a lay
Witness about his or her observations of a defendant's performance on various
Fors and'to give an opinion, pesed on such observations, that the defencant
Was intoxicated. However, onless proper foundation is laid, it is improper
for a police officer to testify thet in his or her opinion, a defendant
“failed” or ‘passes’ a FST.").
+ ere, the record indicates that: (1) Chapa was weaving between
the right and center Lanes on the freeway? (2) Chaps did not immediately
Eespond to Officer Wahina’s blue Lights and siren, snd Officer Nahine was
forced to pull alongeide Chapa’s vehicle and yell at him to pull over; (3)
then asked for his Iicense, registration and insurance, Chepa "seened
Confused, and his bead wae bobbing a littie(s]" (4) Chepa's eyes were “red,
watery, bloodshot(,]” and "an odor of an alcoholic type beverage” enanated
ron Bis veniele; (5) shen instructed to take nine steps forward, heel to too,
turn, and return in the sane fashion, Chape "started too early,” and he “took
Feslly quick steps. He missed Reel to toe all nine. His erns were raised
Throughout the walking(:]” and (6) when instructed to stand on one leg for a
certain period Of tine, Chapa “raised his arms. He swayed, and put his foot
Gow{.I"" Viewing the foregoing competent evidence in the light most favorable
forthe prosecution, gee State v. Bui, 104 Hawai'i 462, 467, 92 P.3d 471, 476
(2004) (the test on appeal in reviewing the legal sufficiency of the evidence
Je wheeher, when reviewing the evidence in the light most favorable to the
prosecution, substantial evidence exists to support the conclusion of the
Erier of fact."l, wo conclude that there was sufficient evidence to support
Chapa’e conviction for the offense of ariving under the influence of an
Sntoxicant, ip violation of HRS § 2916-61 (a) (1).
+ ne Rule 1002 (1993) provides that, “{tJo prove the content of
weiting, recording, or photograph, the original writing, recording, oF
Photograph is required, except 2s otherwise provided in these rules or by
Statute.”
7 RE Rule 1004 (1993) provides that, [t]he original or a duplicate
As not raquired, and other evidence of the contents of s writing, recording,
‘continued.
‘Therefore,
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
IT IS HEREBY ORDERED that the district court’s January
8, 2006 judgment is affirmed.
DATED: Honolulu, Hawai'i, December 13, 2006.
on the briefs:
Farle A. Partington
for defendant ~appellant
Jesus Maria Chapa, Jr.
James M. Anderson, Blaine
Deputy Prosecuting Attorney, \
for plaintiff-appellee o are.
state of Hawai'i Tears
Koran e Raber by
(cont inves)
cor photograph is saniseible if . . . [t]he wetting, recording, oF photograph
Se hot closely related to 9 conteoiiing issue.”
4
|
17622a3f-995a-4c35-a5d7-339b99267c33 | KNG Corporation v. Kim. S.Ct. Order Denying Motion for Reconsideration, filed 05/06/2005 [pdf], 107 Haw. 348. | hawaii | Hawaii Supreme Court | ‘*##POR PUBLICATION®#* UAW uBRARY
aad
KG CORPORATION, Plaintiff-appeliee | :
CAROL KIM and POLO TRADING, INC., Defendants-Appellants.
No. 25038
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CIV. NO. 1RC 02-1052)
APRIL 1, 2005
MOON, C.d., LEVINSON, NAKAYAMA, ACOBA, JJ.,
AND INTERMEDIATE COURT OF APPEALS CHIEF JUDGE BURNS,
ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY ACOBA, J.
We hold that, before ordering that @ rent trust fund
Pursuant to Hawai'i Revised Statutes (HRS) § 666-21 (1993) be
established, the district court of the first circuit (the court)
should have held a hearing on the claim of Defendant-Appellant
Carol Kim (Defendant), as tenant of outdoor spaces rented to her
by Plaintiff-appellee KNG Corporation (Plaintiff), that she was
not allowed to take possession of the said spaces. Because we
remand the case, we conclude, for guidance of the court, that HRS
§ 666-21 does not violate the due process and equal protection
clauses of the state and feder:
utions.
‘***FOR PUBLICATION*++
I
a
On October 12, 2001, Defendant, as President of
Defendant~Appellant Polo Trading, Inc., entered into a conmercial
License agreement with KNG to purchase two vending carts! and
sublease eight twenty-five-square-foot spaces for an outdoor
vending cart operation.’ The scheduled lease term affecting two
of the carts was from November 15, 2001 to November 14, 2004; the
scheduled lease term affecting the other six carts was from
December 15, 2001 to November 30, 2004.7
Defendant allegedly paid to Plaintiff $48,000 as a
premium for the outdoor spaces (the property), $21,000 to
purchase the two existing carts, a security deposit of
$20,833.20, and the initial month's rent of $18,229. A dispute
The remaining six carts were to be built by Defendant.
2 in other conditions of the agreenent the parties assented to
License fee of eight percent per cart of monthly grose sales, with =
contractually stipulated sinimim of $1,950 per month per cart a total of
§15,600/no.}, plus Hawai'l general excise tax. The security deposit
Fequirenent in the contract wae $20,933.20 per month, plus Hawai general
excise tax. Defendant also agreed to pay $550 per month per cart (a total of
54400/n0.) for operating expenses, plus avai" general excise tax for 2001.
Defendant agreed to purchase a coffee cart and crepe cart for
$18,000 and $6,000, respectively. Defendant also agreed to pay $550 per month
Per cart’ (a total Sf §4400/no.) for operating expenses, plur dawait general
excise tex for 2001. “Raditionally, paragraph M of the lease agreement states,
“tenant sarees to pay to Landlord as premium $6,000 per cart for eight carte
fora total of $48,000.00, upon execution of License Agreement. Upon,
execution of Licente Ajreenent, this premiom shall be non-refundable,
Fegardlecs of Tenant occupancy cr performance.”
2 the actual lease states that the lease expiration date for Carts 1
through 6 ie Novenber 36, 2001, bet since this termination date presente 2
logical confiice with thé ccancncenent date, it is presumed that Plaintifé’e
fended Answering rief, listing the lease expiration date ae Novenber 30,
2004, 0 corrects
‘***POR PUBLICATION***
arose as to the location of six of the carts and Defendant clains
she was never given occupancy of the property.
B
on February 12, 2002, Plaintiff filed a complaint
requesting $44,270.45 in unpaid rent and general excise taxes, a
judgment giving Plaintiff possession of the property, and a writ
of possession directing the sheriff or police officer ti
(2) remove Defendant (s) from the property and all persons
possessing the property through Defendant(s)? (2) remove from the
property all personal belongings of Defendant(s) and of any other
person; and (3) put Plaintiff in possession of the property.
On the return date of the sunnons, February 25, 2002,
Defendant entered a general denial to the complaint, the
Honorable Judge David F. Fong presiding. At the hearing,
Plaintiff orally moved for the establishment of a rent trust fund
pursuant to HRS § 666-21 (1993). Defendant responded that the
request should be done by written motion and that possession of
the property had never been provided to Defendant, but the court
granted the motion:
[Defense counsel]: Your Honor, we would oppose this,
This should be Sone by motion and we haven't ==
‘The Court: We have the authority ~
[Defense counsel]: --actually=~
The Court: We have the authority to order that. And
Sf 2 there should be no prejudice es long as the rent ts
Betense counsel]: Well, there's an argument the rent
hee been peid. So there's an’ argument over ==
(Defense counsel): No.” The rent was paid in advance,
‘+##P0R PUBLICATION*#*
‘The Court: Well, I'm going to order the rent trust
fund granted:
(Emphasis added.)
The court ordered Defendant to deposit $20,833.29 into
the rent trust fund by 4:00 p.m. on March 1, 2002 and by the
first of each month thereafter until the dispute was concluded.
The parties were to convene again on March 4, 2002 for a pre~
trial hearing.
At the pre-trial hearing on March 4, 2002, Plaintift’s
counsel stated that Defendant had failed to submit the monies
into the rent trust fund and requested that the judgment for and
writ of possession be issued effective that day. Defense counsel
confirmed that payment had not been made and asserted that the
establishment of the rent trust fund without @ hearing was
unconstitutional. ‘The defense also indicated that an appeal with
respect to the order of-a rent trust fund would be filed, along
with a demand for a jury trial with respect to damages.‘ The
court apparently granted Plaintiff's request for writ of
Possession. On March 5, 2002, pursuant to HRS § 666-11 (1993),*
< the demand for trial by jury with respect to damages was
transferred to the circuit court the day before the Judgment for possession
and writ of poesession were entered
* was © 666-12 states as folloxs:
udgeent; writ of possession. If it is proved to the
istaction of the court that the plaintifé is entitled to
the potsession of the premises, the plaintiff shall have
judgment for possession, and f2r the plaintiff's coste.
Execution shall issue sccordingly, The writ ot possession
shail issue to the sheriff or to 4 police officer of the
Circuit where the proicce are situated, conansing the
sheriff or police officer to rencve ali persons. {rom the
Premises, ond to pot plaintiff, or the plaintiff's agent,
Toontanved.)
‘***FOR PUBLICATION*#*
the court entered a judgment for possession and a writ of
possession in Plaintige’s favor.
Defendant appealed on April 4, 2002 from 1) the
Judgment for possession, and 2) the writ of possession.
n.
a.
Defendant claims that HRS § 666-21 violates the due
process clause of section I of the Fourteenth Amendment to the
United States Constitution’ and/or article I, section 5 of the
Hawai'i State Constitution’ in that it requires, as a
precondition for trial, the payment of rent into a trust fund
without (1) proof of any rent default, (2) prior notice and
hearing, and (3) the posting of a bond by Plaintiff. Defendant
further argues that the court failed to ascertain whether rent
was actually owed and that HRS § 661-21 viclates equal protection
Ss sseonténuea)
inte the full possession thereof.
+ Section 1 of the Fourteenth Amendment to the United states
Constitution seat
ALL persons born or naturalized in the United States,
and subject to the jurisdiction chereof, are citisens of the
Onited stares and of the State wherein they reside, No Store
shall make or enforce any law which shall abridge the
privileges or iInmunitien of citizens of the United State:
hor shall any State deprive any person of Life, Liberty, or
Property, without due process of law) nor deny’ to any person
within its jurisdiction ene equal protection of the Lane.
* Article 1, section § of the Hawal's State Constitution (Dve
Process and Equal Protection) states:
No person shall be deprived of Life, Liberty or
property without due process of lax, nor be denied the equal
Protection of the laws, nor be denied the enjoyment of the
perscn's civil righte or be discriminated against. in the
exercise therect because of race, religion, sex or ancestry.
‘**FOR PUBLICATION*#*
because it discriminates between renters who can afford rent
trust fund deposits and those who cannot.
BL
Initially, Plaintiff argues that Defendant's challenge
to the court’s grant of summary possession is moot because
(1) Defendant asserted she was never in possession of the
premises, (2) Defendant did not file a motion to stay the writ of
possession or a motion for reconsideration, and (3) the writ of
possession has been issued and executed. Plaintiff also contends
that the court's action was constitutional because the rational
basis test applies to HRS § 666-21 and the rational basis test is
satisfied.
©.
‘The Attorney General for the State of Hawai'i submitted
an amicus curiae brief. The position of the State is that (1)
the Hawai'i appellate courts lack jurisdiction because of
untimeliness of the appeal; (2) in this case, the exception
announced in Forgav v. Conrad, 47 U.S. 201 (1848) [hereinafter
Foray doctrine], permits an order for payment into a rent trust
fund; (3) the case is moot because execution of the writ of
possession has ousted Defendant; and (4) HRS § 666-21 is
constitutionally valid.
nH.
A
As mentioned, the State first maintains that
Defendant's appeal is untimely because the April 4, 2002 notice
6
‘***P0R PUBLICATION*#*
of appeal was not filed within thirty days of the “February 25,
2002 [rent trust fund) order.” However, there is no February 25,
2002 rent trust fund order--there is merely the February 25, 2002
oral decision by the district judge. The oral decision is not an
appealable order. gee HRAP 4(a)(1) (*[T]he notice of appeal
shall be filed within 30 days after entzy of the judgment or
appealable order.”); HRAP 4(a) (5) ("A judgment or order ie
entered when it is filed in the office of the clerk of the
court.").
In civil cases before the district court, “{t)he
filing of the judgment in the office of the clerk constitutes the
entry of the judgment; and the judgment is not effective before
such entry.” District Court Rules of Civil Procedure Rule 58.
See Hawai'i Rules of Civil Procedure Rule 58. As such, the
February 25, 2002 oral decision regarding the rent trust fund is
an interlocutory decision in the sunmary possession case that is
reviewable on appeal from the judgment for possession. See
Eionser Mill Co. v. Ward, 34 Haw. 686, 694 (1936) (stating that
an appeal from a final judgment “brings up for review all
interlocutory orders not appealable directly ae of right which
deal with issues in the case” (citations omitted) ).
8
‘The State further contends that the Forgay doctrine
does not provide a jurisdictional basis for this appeal because
Defendant is appealing the February 25, 2002 rent trust fund
decision and the Foray doctrine does not apply to transfers of
monies into a court fund. “The Foraay doctrine is an exception
*#*F0R PUBLICATION*#*
to the finality requirement for appeals and it allows an
appellant to immediately appeal a judgment for execution upon
property, even if all claims of the parties have not been finally
resolved.” Ciesla v, Reddish, 78 Hawai'i 18, 20, 889 P.2d 702,
704 (1995). “Under the Forgay-Conrad rule, the lover court's
order is treated as final for appeal purposes where the losing
party would be subject to irreparable injury if appellate review
had to avait the final outcone of the Litigation.” Bank of
Hawaii v. Davis Radio Sales & Serv. Inc. 6 Haw. App. 469, 475
n.10, 727 P.2d 419, 424 n.10 (1986).
‘The State asserts that the Eoraay doctrine should not
be applied to the termination of @ leasehold interest in
commercial property because Defendant has an adequate remedy in
noney damages and, hence, there is no irreparable injury.
However, the seminal Hawai'i case on the Zorgay doctrine, Benn v.
‘Transp. Lease Hawaii, Ltd., 2 Haw. App. 272, 630 P.24 646 (1981),
involved termination of a leasehold interest in automobiles that
vas held to be appealable under Foray.
Plaintiff and the State finally contend that this
appeal is moot because the writ of possession was executed and
Defendant is not in possession of the subject premises. However,
the agreement gave Defendant possession until Novenber 14, 2004,
with “one 3-year option to renew.” See Exit Co. Lid. Prship vw
» 7 Haw. App. 363, 366, 766 P.2¢ 123,
131 (1988) (determining in a summary possession case that an
8
‘+**P0R PUBLICATION*#*
appeal from a judgment for possession is moot where the appellant
legally cannot regain possession of the subject premises, i.e,
the lease is “not subject to renewal or extension,” should the
judgment for possession be vacated by the appellate court).
Hence, because there was an option to renew, this court has
jurisdiction to review the case."
Ww.
The purpose of a sunmary possession action is to place
the landlord in possession of the subject premises. Pursuant to
the summary possession statue,
Iwinenever any lessee or tenant of any lands or tenenents
STholde possession. without Fight, after the
termination of the tenancy, either by passage of tine or by
reason of any forfeiture, under the conditions or covenants
inva lease, . .. the person entitled to the premises nay be
restored to tho possession thereof [pursuant to the summary
preceeding provided in HRS chapter 666].
HRS § 666-1 (1993) (emphasis added). Accordingly, the
“proceeding provided under HRS chapter 666 is not for the trial
of title to land, but its primary purpose is the determination of
the right to possession between the person claiming to be the
landlord and one claiming to be his (or her) tenant.” Lum vw
Sun, 70 Haw. 288, 292-93, 769 P.2d 1091, 1094 (1989) (citing 3A
G. Thompson, Conmentaries on the Modern Law of Real Property
$1370, at 722 (J. Grimes Repl. 1981) (footnote and brackets
omitted). “(T]he statutory proceeding described in HRS chapter
666 is meant to provide ‘a remedy that enables the landlord to
as to moctness, ee gupta page 6, also
inilar reason, nt had possession of two spaces and s¢h
prarrrare "© failure to apply for a stay of the writ or for
Feconsideration would not most the question of posteesio:
© plaintstere
8
**4FOR PUBLICATION*##
obtain possession of leased premises without suffering the delay,
loss and expense to which . . . [the landlord] might be subjected
if he [or she] could only rely on the common law to remove a
tenant who is wrongfully holding over his {or her] term.” Id.
(brackets omitted); see also Kamaole Two Hui v, Aziz Enters...
Inc, 9 Haw. App. 566, 572-73, 854 P.2d 232, 236 (1993). “At
common law, one with the right to possession could bring an
action for ejectment, a ‘relatively slow, fairly complex, and
substantially expensive procedure.” Lum, 70 Haw. at 294 n.5,
769 P.2d at 1095 n.5 (quoting Lindsey v. Normet, 405 U.S. 56, 72
(1972) (other citation omitted). ‘Thus, summary possession was an
accelerated and economical means by which to regain possession.
v.
The rent trust fund is intended to maintain the status
quo, continuing possession in the tenant so long as the tenant
Pays the agreed rent as it comes due. The rent trust fund
provision, HRS § 666-21 states, in part:
provided under subsection proviaes
‘hat the canant shall oot be ceauised 2 dacoait any rent
Ehtient tas aisaay been caus to the landings
Sendeit of tant into the Tond ordered onder thie
hall sftect the tenant's ciahts to assert either that
iu fader thie chapter
(DL if the tenant is unable to comply with the court's
order under subsection (a) in paying the required ancunt of
Fent to the court, the landiord shall nave dudgnent for
Possession and execution shall ‘enue accordingly. +
(c) . 1 « The court shall order peyment of the money
collected cr portion thereof to the landlord if the court
10
‘***FOR PUBLICATION*#*
(Emphases added.) A review of the legislative history indicates
that HRS § 666-21 was modeled on HRS § 521-78, the rent trust
fund statute pertaining to the residential landlord-tenant code.’
See Hise. Stand. Comm. Rep. No. 324, in 1984 House Journal, at
978. HRS § 521-78 was enacted because “[tJhe legislature (found)
that the landlord often obtains possession after a long, drawn
out court proceeding, only to find that the tenant cannot or will
not pay for the time in which the tenant was in possession of the
premises.” 1978 Haw. Sess. L. Act 75, § 1, at 98. The
legislature’s concern was that
Af a diepute regarding the payment or nonpayment of rent
arises and the tenant refuses co pay all fents, a landlord
has no recourse but to commence lengthy evicticn
Proceedings. liowever, eviction proceedings will not
Eompensate che landlord for the rent accrued since,
Fractical natter, at the end of the proceedings the landlord
Would gain possession only.
Rs § 521-78 (2993) states, in relevant part, as follows:
(a) At the request of either the tenant or the
landlord in sny'court proceeding in which the peysent oF
fonpayment of rent is in dispute, the court shall order the
tenant to deposit any disputed rent sr it becomes due into
the court as provided ender subsection (c), + provided
that the tenant shall not be required to deposit any ene
where the tenant can show to the court's satisfaction that
the rent has already been paid to the landlord «se. Ne
deposit of rent into the fund ordered under nie section
shail affect the tenant's rights to assert either that
payment of ront was made of that any grounds for nonpayment
Sf vent exist under this chapter
b) If the tenant = onab:
to comply with the court's
order under subsection (a) in paying the required amount of
Fent inte the court, the landlord shail have judgnent: for
possession and execution shall issue accordingly
(Enphacis added.)
FOR PUBLICATION*#*
Sen. Stand. Com. Rep. No. 557-78 in 1978 Senate Journal at 998.
Thus, the intended rent trust fund procedure was to “expedite the
resolution of [rent] disputes” and to provide an alternative to
eviction proceedings. See Sen. Stand. Com. Rep. No. 595-84, in
1984 Senate Journal at 1304 (contemplating the purpose of HRS
$ 521-78).
As pointed out, the rent trust fund, HRS § 66-21,
provides that, at the request of tenant or landlord, a court
“shall order the tenant to deposit any disputed rent as it
becomes due into the court.” HRS § 666-21(a). “If the tenant is
unable to comply . . . in paying the required amount of rent to
the court, the landlord shall have judgment for possession.” HRS
§ 666-21(b)."* Significantly, the legislature indicated that the
rent trust fund was necessary to prevent the situation in which
the “tenant cannot or will not pay for the time in which the
tenant was in possession of the premises.
Act 75 § 1, at 98 (emphasis added). Correlatively, if a tenant
1978 Haw. Sess. L.
the tenant is afforded several protections from wrongful
Glepossession. First, “where the tenant can show ta the court’s satisfaction
that the rent has already been paia to the Jandiors[,]" the court shail not
Sex payment of rent. into the fund. HRS § €66-21(e). Second, deposit of
{Eis Only peraitted a Lt becones doe under the lease terme. See id, In
other words, the tenant's rental cbligation is no greater than as negotiated
in the lease, Third, the deposit of rent into the fund dose not affect the
fenant’s right to assert defenses. The court has the discretion ins summary
Possession case to sever the issue of a determination of the landlord's right
suenary possession from other issues. ga lily 70 Haw. at 291, 769 P.2a at
2095-96; gee also Kamacle Duo tui, 9 Haw. App. at S74 n.9, 654 F.2d at 236
8.9; Hse.” Stand. Con. Rep. No. €03, in i978 louse Journal, at 1660 (stating
“[nje deposit of rent into the’ fund... shall affect the tenant's
ghts to assert either that paynent of rent was sade or that any grounds for
honpayment of rent exist” and indicating that payment nto the rent trust
fund “are not an adsission of nenpaynent or wrongful withholding, But an
expression of geod faith on the part of the tenant”). Lastly, sanctions are
Provided if the court finds that" ene requesting party raised the issue of
Peyment or noneaynent of rent in bad faith, see HRS $ 666-2104)
12
***FOR PUBLICATION***
has not been given possession of the property, it would appear
improper for the court to order the establishment of a rent trust
fund. In accordance with the rationale underlying HRS $5 666-1
and 666-21, landlords who do not provide possession to the tenant
do not require an eviction proceeding or the protection of a rent
trust fund.
Defense counsel protested the rent trust fund order on
the basis that his
ent had “actually never taken possession.”
If Defendant was not provided with possession of the property or
any part thereof, the court was obligated to hear counsel before
ordering Defendant to pay into a rent trust fund." Therefore,
we vacate the court's March 5, 2002 judgment for possession and
weit of possession and remand the case for a hearing as to
whether possession had been given Defendant so as to justify the
imposition of such a fund.
vr.
To provide guidance to the court on remand, see e.0.,
Gap v. Puna Gecthernal Venture, 106 Hawai'i 325, 241-43, 104 P.3¢
912, 928-30 (2004) (offering guidance to circuit court on remand
as to setting appropriate sanction); Nelson v. Univ. of Hawai'i,
97 Hawai'i 376, 386
6, 38 P.3d 95, 104 n.6 (2001) (addressing
evidentiary issues to provide guidance to the court on remand);
Torres v, Northwest Ena’a Co,, 86 Hawai'i 383, 399, 949 P.2d
1004, 1020 (App. 1997) (discussing the plaintiff’s motion for
MRS § 666-21 (2) authorizes the court *:
“rent as it becones due” into the trust tu
erder the tenant to
ep.
13
‘***FOR PUBLICATION*#*
partial JNOV upon vacatur of a JNOY order in favor of the
defendant “for the edification of the circuit court on remand”),
we address Defendant’s argument that HRS § 666-21 ie “both on its
face and as applied in this case, contrary to bedrock and
elementary minimum requirements of both due process of law and
the equal protection of the laws.”
a.
“The basic elements of procedural due process of law
require notice and an opportunity to be heard at a meaningful
time and in a meaningful manner before governnental deprivation
of a significant property interest.” Sandv Beach Def. Fund v
City council, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989). This
court has analyzed due process claims in two steps. See id. at
376, 773 P.24 at 260. The first question is whether the
particular interest sought to be protected by @ hearing is
“property” within the meaning of the due process clauses. Id.
If the interest is “property,” the second step involves
ascertaining the specific procedures required to protect the
interest. Ide
From what we can discern based upon the arguments of
the parties, Defendant identifies two interests constituting
property within the meaning of the due process clauses -~
possession of the leased premises and the rent to be paid into
4
##*P0R PUBLICATION
the trust fund, in this case, $20,633.20." Assuming, arquendo,
these interests are protected under the due process clauses, HRS
§ 666-21 does not offend due process inasmuch as tenants are
afforded an opportunity to challenge sunmary possession and
notions for the establishnent of a rent trust fund,
8
“Due process encompasses the opportunity to be heard at
@ meaningful time and in @ meaningful manner. Due process is
flexible and calls for such procedural protections as the
particular situation demands.” Kernan vw. Tanaka, 75 Haw. 1, 22,
856 P.2d 1207, 1218 (1993) (internal quotation marks and
citations omitted). With respect to possession as “property,”
the district courts have exclusive jurisdiction over the issue of
summary possession, see Kimball v. Lincoln, 72 Haw. 117, 125, 809
P.2d 1130, 1134 (1991), and may issue writs of possession
Pursuant to HRS § 666-11. See supra note 5. In this case,
Defendant was given notice with respect to possession of the
Property. As indicated supra, the question remaining is whether
Ae to Defendants’ due process claim, the State first contends that
there is no “deprivation of property" in the inetant case as {Defendants}
ald) no freestanding "leaseheia possessory right’ in the prenises independent,
of the Agreenent and its requiresent of monthly rent payments.” Based on
this, the State posits that (1) Defendants were “obligated to make the
March 1, 2002 [rent] payment,” (2) “failure to make that payment was admitted”
by Defendants, (3) said failure to pay "triggered the issuance of the sudgent
and weit of possession,” (4) and, because the “March ? payment date was
Selected by the Agreemont,” such payment date “id not require additronal,
notice or hearing by the court.”
‘Second, the State contends thet as to Defendants’ clain that
"possession was never provided" and due process Tequired a hearings “[1if
= possession was never provided, then the deprivation of the scontractval
jeasenold possessory rights’ and of the advance payments was effected
any S0urt Order anc by action cf » prigare gary” (aephases in origin
15
‘***FOR PUBLICATION***
the hearing afforded Defendant was sufficient. At the February
25, 2002 hearing, Plaintiff orally moved for the establishment of
a rent trust fund. Defense counsel had the opportunity to oppose
the motion and argued that “possession was never provided” to
Defendant. Our decision to remand, then, rests upon the
insufficiency of the court’s hearing.
In connection with continued possession of the
premises, HRS § 666-21 states that “the court shall order the
tenant to deposit any disputed rent as it becones due” and that
“the tenant shall not be required to deposit any rent where the
tenant can show to the court’s satisfaction that the rent has
already been paid.” (Emphases added.) Implicit in this language
is that rent must be “due” under any purported lease agreement
and that the tenant must have an opportunity to “show” the court
that the rent has already been paid. In this case, Defendant had
an opportunity to challenge Plaintiff’s motion for establishment
of the rent trust fund, but the court did not make a finding as
to whether Defendant was in possession of the premises to warrant
application of HRS § 666-21. But this error does not alter the
fact that HRS § 666-21 provides for, and Defendant was given,
notice and a hearing with respect to possession.
c
With respect to rent as “property,” HRS § 666-21 does
not preclude tenants from raising defenses to clains of rent due
and owing in the district court. HRS § 666-21 (a) states that
“(nlo deposit of rent . . . shall affect the tenant's rights to
16
FOR PUBLICATION*+*
assert either that payment of rent was made or that any grounds
for nonpayment of rent exist under this chapter.” (Emphasi
added.) Also, HRS § 666-21(c) permits the court to “order
Payment of the money collected or portion thereof to the tenant
ifthe court finds that the rent is not due or has been paid. or
that the tenant had a basis to withhold, deduct, or otherwise set
off the rent not paid.” (Emphasis added.) Thus, HRS § 666-21
does not appear to preclude tenants from raising defenses to rent
at the time a request for the establishment of a rent trust fund
is made, but, rather, expressly preserves the tenant’s right to
assert that rent was paid or that grounds for nonpayment exist.”
Cf. Lumv. Sun, 70 Haw. at 296-97, 769 P.2d at 1096 (“The
defendant may now also have any counterclaim ‘arising out of and
referring to the land or premises, the possession of which is
being sought,’ other than a real action or one in which the title
to real estate comes in question, heard in the district court
along with the summary possession action even though the value of
the counterclaim may exceed the monetary limit for actions
ordinarily triable there.”) (quoting HRS § 604-5(a) (emphasis
added) (internal brackets omitted)).
© ong Cases cited By, Defendane de net support her position, but, rath
support the constifutionality of ARS § 666-21. See ease
1 9% Howai't 372, 388, S84 P.24 1198, 1218 (1999) {holding that oral
notice £6 local counsel ‘of possible revecat lon of ora hac vice status is
sufficient to conply with procedural due process); Beraan, 78 Haw. at 26, 656
P.2g at 1220 (coneluding that Hawaii's adeinieteative revocation of licenses
program adequately protects citizens from weongfal license, suspensions
inasmuch as "tinely Judicial review if available to correct any deficiencies
inthe process")
bb
‘**FOR PUBLICATION*#*
Moreover, in this case, Defendant filed a demand for a
jury trial with respect to Plaintiff’s $42,500.00 plus damage
claim for unpaid rent. Hence, Defendant will presumably have an
opportunity to defend against Plaintiff's damages clain.
Accordingly, we cannot say that HRS § 666-21 violates due
process.
Our decision is consistent with the United states
Suprene Court decision in Lindsey v, Normet, 405 U.S. 56 (1972).
In Lindsey, the Suprene Court addressed the constitutionality of
the Oregon Forcible Entry and Wrongful Detainer Statute. Under
that statute, a tenant was required to pay accruing rent pending
judicial settlenent of its disputes with the lessor." See id.
at 63, 67. Lindsey held that inasmuch as the tenant is not
foreclosed from litigating its right to damages or other relief
by bringing @ separate action, the Oregon statute does not deny
due process of lav. See id, at 66-67. Similarly, under HRS §
666-21(a), the tenant may assert grounds for nonpayment of rent
and pursuant to HRS § 666-21(c), the court may require repayment
of rent collected if the court finds that the rent was not due,
was paid, or should be withheld, Also, as in this case,
M The statute at issue in Lindsey provided, in relevant part, as
Eeliowe
snuance shall be granted for a longer period than two
2 the defendant spplying therefor gives an
ing to the sdverse party with good and sufficient
security, to be approved by the court, conditioned for the
Payment of the rent that say accrue if judgment is rendered
against the defendant,
adsey, 405 U.S. at 60
Jed Statutes § 208.240).
[quoting oregon Re:
‘**FOR PUBLICATION***
defendants are not precluded from filing a request for a jury
trial on remaining claims of plaintiffs or any of their own
counterclaims “triable of right by a jury.” Lum, 70 Haw. at 297,
769 P.26 1097; see id at 290, 769 at 1093 (concluding that “the
[tenant] was entitled to a jury trial in the [circuit court] on
her claims, but the jury denand did not divest the district court
of pover to decide whether or not [the landlord) should be
restored to possession of the premises in question”). To
reiterate, in this case, Defendant moved for a jury trial. Any
defenses she raised to the rent have accordingly been transferred
to the circuit court. ‘Thus, because tenants, including
Defendant, have “an opportunity to present every available
defense[,]” Lindsey, 405 U.S. at 66, HRS § 666-21 comports with
the due process clauses of the state and federal constitutions.
>.
Defendant also asserts an equal protection claim,
arguing that HAS § 666-21 impermissibly “discriminates between
those renters who can afford rent trust fund deposits and those
who cannot, as a requirenent for receiving a trial on the merits
of the possessory issues.” strict scrutiny is ordinarily
applied where lawe involve suspect classifications or fundamental
Ac to Defendants’ equal protection clain, the State maintains that
“the lesitinate, non-diseriminatory rations) government purpose underlying the
(statute ie to] saintain the cratus quo” during the "unpredictable" and
“iikely Iengthy" legal proceedings initiated to rescive the landiord-tenant
Gispuce. In the comercial context, ‘the State reasons that "(tlhe status quo
aintaines cecause the landlord continues to provide the leased premises,
and the tenant continues to pay the agreed-upon rent." Because rent paynent
ie-made to the court, the State argues that Such payment "may be returned in
wisle or in part to the tenant at the conclusion of she entire
as
FOR PUBLICATION’
rights. See Bachr v. Lewin, 74 Haw. 930, 571, 852 P.2d 44, 63
(1993). However,
daser this standard, to prevail, a party challenging the
constitutsonslity of a statutory classification on equal
protection grounde has the burden of snowing, with
‘convincing Clarity that the classification 14 not rationally
kelated to the statutory gurpose, or that the challenge
Classification does not Test upon some ground of difference
having a fair and substantial relation to the object of the
legislation, and is therefore net arbitrary and capricious.
Sandy Beach Def, Fund, 70 Haw. at 380, 773 P.2d at 262 (citations
omitted) (emphases added). See State v, Hatori, 92 Hawai'i 217,
225, 990 P.2d 115, 123 (App. 1999) (“If a suspect classification
or fundamental right is not involved, our inguiry of an equal
protection claim is whether there is a rational basis for the
challenged statute.”). Defendant does not argue that tenants
constitute a suspect class. Rather, she maintains that HRS
§ 666-21 impinges upon a fundamental right, that is, the right to
notice and hearing.
‘This court has observed that a right is fundamental if
it “is of such a character that it cannot be denied without
violating those ‘fundamental principles of liberty and justice
which lie at the base of all our civil and political
institutions.’” Baehr, 74 Haw. at 556, 852 P.2d at 57 (quoting
Griswold v, Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J.,
concurring)). In other words, a right is fundamental if it is
“so rooted in the traditions and collective conscience of our
people that failure to recognize it would
olate the fundamental
principles of liberty and justice that lie at the base of all our
20
‘+**P0R PUBLICATION*#*
civil and political institutions.” Id. at 986-57, 852 P.2d at
57. By arguing that notice and hearing are fundamental rights,
Defendant confuses procedural due process principles with
substantive due process principles. As discussed previously, the
Fight to notice and hearing is a procedural due process right
and, hence, is not a “fundamental right” subject to strict
scrutiny. Therefore, the rational basis standard of review
applies to Defendant's equal protection claim.
“Under the rational basis test, ve inquire as to
whether [HRS § 666-21] rationally furthers a legitimate state
interest.” Id. at 572, 852 P.2d at 64. Defendant fails to cite
any case law or legislative history to support its position that
HRS § 666-21 does not meet rational basis review. In Lindsey,
the Supreme Court apparently employed the rational basis test.
See 405 U.S. at 74 (stating that “since the classification under
attack is rationally related to [the purpose of the statute), the
statute is not repugnant to the [e]qual [p]rotection [c]lause of
the Fourteenth Amendment”) (emphasis added). It held that the
statute withstood equal protection challenge based upon the
“unique factual and legal characteristics of the landlord-tenant
relationship that justify special statutory treatment
inapplicable to other litigants.” Id, at 72. According to the
Supreme Court,
che tenant is, by definition, in possession of she
2
‘***POR PUBLICATION*#*
Many expenses of the landlord{)
Eontinve to accrue whether s tenant pays his rent or not.
Heading over by the
Eenant beyond the term of his agreement or holding without
payment of rent has proved a virulent source of friction and
Bigpute.
Id, at 12-73 (emphases added). ‘The interest in “speedy
adjudication . . . to prevent subjecting the landlord to
undeserved economic loss and the tenant to unmerited harassment
and dispossession” sanctioned by the Supreme Court coincides with
the underlying objective of $ 666-21, which, as previously noted,
is to maintain the status quo -~ simultaneously providing
landlords with an expeditious alternative to eviction proceedings
and tenants with an opportunity to maintain possession so long as
rent is paid when properly due. The imposition of a rent trust
fund
requiring tenants to pay rent in exchange for possession
for the duration of the dispute -- appears rationally related to
achieving this statutory purpose. Inasmuch as a rational
relationship exists between these objectives and the rent trust
fund, we hold that HRS § 666-21 does not violate the protections
guaranteed by the equal protection clauses.
van.
For the foregoing reasons, the court's March 5, 2002
judgment for possession and writ of possession are vacated and
22
‘***FOR PUBLICATION*+*
the case is remanded for a hearing on whether Defendant had
possession of the property.
Gary Victor Dubin for
defendants-appellants. Y
carolyn Schnack (Paul 4. Blase Alarinnen
Dold on the brief) for
plaintiff-appellee.
Dorothy Sellers, Deputy =<
Attorney General, on the > \
brief for Amicus Curiae -
State of Hawai'i.
|
e234da1c-29dc-4fa3-ab7d-a47e872b6eee | Jones v. Owners and Occupants of Adjoining Lands | hawaii | Hawaii Supreme Court | LAWLIBRARY
[NOT _FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
a
No. 25672 ofl
IN THE SUPREME COURT OF THE STATE OF HAWAT'R=
a
TIMOTHY FOSTER JONES, 1
Plaintiff Counterclaim Defendant /Appelant /Cross-Agpel le
19309002
eztiny
OWNERS AND OCCUPANTS OF ADJOINING LANDS; STATE OF HAWAT'I,
Defendant /Appellee/Cross-Appel lant /Cross~Appellee,
HOWARD RUGGLES GREEN, WARREN JAY GUNDERSON and JAMES WALKER
AUSTIN, TRUSTEES OF THE JAMES WALKER AUSTIN TRUST DATED JUNE 7,
1985; RICHARD F. LERT and CARL B. YORK, JR., TRUSTEES OF THE
DANIEL J. FAIRBANKS III TRUST DATED OCTOBER 31, 1986; HOWARD
RUGGLES GREEN and WARREN JAY GUNDERSON, TRUSTEES OF THE SIANA
AUSTIN TRUST DATED JUNE 22, 1990 and TRUSTEES OF THE JAMES WALKER
‘AUSTIN ITI TRUST DATED JUNE 22, 1990,
befendants/Counterclaimants/Appellees/Cross-Appellants,
BURK W. JONES AND JOAN DIANE JONES, TRUSTEES UNDER THE BURK W.
JONES AND JOANIE D. JONES REVOCABLE LIVING TRUST AGREEMENT DATED
JANUARY 15, 1993, Defendants/Appellants/Cross-Appellees,
HEIRS AND ASSIGNS OF KAINIKI (k); HEIRS AND ASSIGNS OF
KALAWAIANUI (w); OFFICE OF HAWAIIAN AFFAIRS; HEIRS AND ASSIGNS OF
ANNIE LEI WINCHESTER (including LOWELL THOMAS YOON, WESLEY KAINI
NUT YOON and FERN MAHEALANT YOON); HEIRS AND ASSIGNS OF MABEL
K.P. CUMMINGS (also known as Mabel G. Cummings and as Mabel Gahan
Cummings) ; HEIRS AND ASSIGNS OF MAPUANA NAILIMA (also known as
Mapuana Kishi); HEIRS AND ASSIGNS OF HELEN FULLER (also known as
Helen S. Fuller and as Helen Scott Fuller); and Heirs of persons
named above who are deceased, or persons holding under said
HRUNANT CAMPOS OLDS; MARTELENA R.
Heirs; HERBERT A.K. CAMPOS;
MEYER; CHARLES PILA; HARRY G. CUMMINGS, JR.; MARGARET 7.
CUMMINGS; IRENE MILILANI BISHAW, RUSSEL GEORGE KALEOLANI PHIFER,
JOHN K. PERREIRA aka JOHN KAWAI PERREIRA; DOE DEFENDANTS 4
‘THROUGH 100; and all persons or corporations unknown claiming any
right, title estate, lien or interest in the real property
described in Plaintiffs’ Complaint adverse to Plaintiffs’
ownership and TO ALL WHOM IT MAY CONCERN, Defendants.
BURK W. JONES AND JOAN DIANE JONES, TRUSTEES UNDER THE BURK W.
JONES AND JOANIE D. JONES REVOCABLE LIVING TRUST AGREEMENT DATED
JANUARY 15, 1993, Plaintiffs/Counterclain
Defendants/appellants/Cross-Appellees,
** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
HOWARD RUGGLES GREEN, WARREN JAY GUNDERSON and JAMES WALKER
AUSTIN, TRUSTEES OF THE JAMES WALKER AUSTIN TRUST DATED JUNE 7,
1985; RICHARD F. LERT and CARL B. YORK, JR., TRUSTEES OF THE
DANIEL J. FAIRBANKS ITI TRUST DATED OCTOBER 31, 1986; HOWARD
RUGGLES GREEN and WARREN JAY GUNDERSON, TRUSTEES OF THE SIANA
AUSTIN TRUST DATED JUNE 22, 1990 and TRUSTEES OF THE JAMES WALKER
‘AUSTIN III TRUST DATED JUNE 22, 1990, Defendants/
Counterclaimants/Appellees/Cross-Appellants/Cross-Appellees,
OWNERS AND OCCUPANTS OF ADJOINING LANDS; STATE OF HAWAI'L,
Defendant /Appel lee/Cross-Appel lant /Cross~Appellee,
‘TIMOTHY FOSTER JONES,
Defendant /Counterclaim Defendant-Appel lant /Cross-Appellee,
IRENE MILILANI BISHAW; RUSSEL GEORGE KALEOLANI PHIFER; JOHN K.
PEREIRA (also known as John Kawai Perreira); HEIRS AND ASSIGNS
OF NAKOKO (k); HEIRS AND ASSIGNS OF A. ROSA; OFFICE OF HAWAIIAN
AFFAIRS; HEIRS AND ASSIGNS OF THEODORE DUDOIT (also known as
Theodore Nawahine Dudoit); HEIRS AND ASSIGNS OF ANNE LET
WINCHESTER (including LOWELL THOMAS YOON, WESLEY KAIWI YOON and
FERN MAHEALANI YOON); HEIRS AND ASSIGNS OF MABEL K.P. CUMMINGS
(also known as Mabel G. Cunmings and as Mabel Gahan Cummings) ;
HEIRS AND ASSIGNS OF NAPUANA NAILIMA (algo known as Mapuana
Kishi); HEIRS AND ASSIGNS OF HELEN FULLER (also known as Helen S.
Fuller and as Helen Scott Fuller); and Heirs of persons named
‘above who are deceased, or persons holding under said Heirs;
HERBERT A.K. CAMPOS, 'HAUNANT CAMPOS OLDS, PATRICK CAMPOS,
MARIELENA R. MEYER, CHARMAINE D. ARMITAGE; DOE DEFENDANTS 6
through 100; and all other persons or corporations unknown
claiming any right, title, estate, lien or interest in the real
property described in Plaintiffs’ Complaint adverse to
Plaintiffs’ ownership and T0 ALL WHOM IT MAY CONCERN, Defendants.
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NOS, 98-0355 and 98-0358)
(ey: Moon, ¢.., ‘Mevinson, Nakayama, Aeoba, and Duty, JJ.)
Plaintiff /Counterclaim Defendant /Defendant/
Appellant /Cross-Appellee Timothy Foster Jones ("Tin") and
Plaintitts/counterclain Defendants/Defendants/Appellants/Cross-
Appellees Burk W. Jones and Joan Diane Jones, in their capacities
"S HAWAII REPORTS AND PACIFIC REPORTER ***
NOT FOR PUBLICATION IN WES:
as Trustees Under the Burk W. Jones and Joanie D. Jones Revocable
Living Trust Agreement Dated January 15, 1993 (collectively
“Burk")! jointly appeal from the June 6, 2003 order of the
Circuit Court of the Second Circuit? (“circuit court”) granting
in part and denying in part Defendants /Counterclaimants/
Appellees/Cross-Appellants’ Trustees of the Daniel J. Fairbanks
III Trust Dated October 31, 1986, Trustees of the Siana Austin
‘Trust Dated June 22, 1990, and Trustees of the Janes Walker
Austin Trusts Dated June 7, 1985 and June 22, 1990 (hereinafter
collectively referred to as “the Austin and Fairbanks Trust
or “the AGF Trustees”)? joint motion for costs and prejudgment
interest. The circuit court awarded a total of $19,214.75 in
costs, but no pre-judgment interest, pursuant to its June 6, 2003
order.
on appeal, Tim and Burk argue that: (1) the circuit
court erroneously dened the A&F Trustees the prevailing parties
in this Litigation because they prevailed on what the circuit
court determined to be the “main issue” in the case. Tim and
Burk claim that they would have been declared the prevailing
parties had the circuit court “balanced all of the claims
presented[;]” (2) alternatively, “the question of who is the
' pecause (2) Burk Jones was named “individually” (without specific
mention of Joan) as 4 captioned plaintsf#/sefendant at. various points in the
Pleadings and in the record on appeal itself, and (2) Burk attended and
Participated in various proceedings (e.g. in depositions), while 1t appea
Ehat Joan did not, we will use the shorthand “Burk” to refer to both Burk and
Joan as trustees of their revocable living trust for purposes of expediency
Gnd clacity, despite the technical snaccurecy
+ the Honorable Shackley F. Raffetto presided.
> the parties as well as the circuit court referred to the AGF
Trustees as the "Austin Defendants” throughout the course of litigation,
omitting mention of the Fairbanks Trustees
3
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER
prevailing party is . . . too close to call [such that] the
parties should bear their own costs{]” (boldface emphasis
omitted) (capitalization omitted); and (3) even assuming that the
AGF Trustees had been properly deemed the prevailing parties to
this litigation, the AGF Trustees’ motion for costs was
Amproperly granted due to the movants’ failure to remove certain
submitted coats that had been waived due to a settlement
agreement disposing of, inter alia, Tim and Burk’s access and
utility easement claim, where costs related to the settled clains
were expressly to be borne by the parties.
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 resolve Tim and
Burk’s arguments as follow:
(2) Tim and Burk challenge the circuit court’s finding
of fact “that the accretion claims were the main issue in dispute
in the case and since [the AsF Trustees] prevailed on those
claims, they are the prevailing parties even though they did not
prevail on all claims{]” on the grounds that the circuit court
should have instead balanced all of the disputed claims in the
case. Tim and Burk allege that based upon their prevailing on
all decided claims except for the accretion claim, they were, on
balance, the prevailing parties in this case. Upon review, we
observe that: (1) the circuit court set forth a reasonable,
legitimate rationale for declaring the A&F Trustees the
prevailing parties consonant with this court’s caselaw (see
Tradewinds Hotel v, Cochran, 8 Haw. App. 256, 269, 799 P.2d 60,
68 (1990) (citing Food Pantry v. Waikiki Business Plaza, Inc., 58
4
[NOT_FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER,
Haw. 606, 620, 575 P.2d 869, 879 (1978); and (2) Tim and Burk
have arguably demonstrated (as they did below) a second, equally
reasonable and legitimate rationale by which the circuit court
could have instead deened Tim and Burk the prevailing parties for
purposes of awarding costs. However, this does not constitute an
abuse of discretion by the circuit court, because the circuit
court's selection of one of these two equally reasonable theori
advanced by the parties (in this case, the A&F Trustees’) was, by
definition, well within the bounds of reason. See, e.g,
Stanford Carr Dev, Comp, v. Unity House, Inc,, 111 Hawai'i 286,
297, 141 P.3d 459, 470 (2006) (quoting Hong v. Takeuchi, 88
Hawai'i 46, 52, 961 P.2d 611, 617 (1998) (citation omitted)), and
Via Enters., Inc. v, Del Rosario, 111 Hawai'i 484, 489, 143 P.3d
23, 28 (2006); see also Food Pantry, 58 Haw. at 620, 575 P.2d at
879 (1978). We therefore hold that the circuit court did not
abuse its discretion when determining that the AGF Trustees were
the prevailing parties in the litigation, nor did it abuse its
discretion in awarding costs to the A&F Trustees. See Stanford
Carr Dev. Corp, Wong, and 7 Enters., Inc., supra.
(2) Because we hold that the circuit court did not
commit an abuse of discretion when awarding costs, we also hold
that Tim and Burk’s alternative argument that the case was “(t]oo
[ellose (t]o [clall” (such that no costs should be awarded) is
unavailing.
(3) We lastly address Tim and Burk’s final argument
that the circuit court abused its discretion by awarding costs
despite the ASF Trustees’ failure to exclude certain costs
associated with the access and utility easement claim or claims
5
‘#1 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
in the case, because the parties had entered into a settlenent
agreenent expressly providing that all attorney's fees and costs
as to the access and utility easement claim (among others) would
be borne by the parties. Specifically, Tim and Burk contend that
the circuit court abused its discretion in awarding costs
inasmuch as: (a) the AGF Trustees’ request for costs was
inappropriately premised upon a “cut-off” date of costs incurred
(November 13, 2002), rather than an actual apportionment of costs
related to particular claims; and (b) certain deposition
and
transcript cost items were clearly in relation to the ace:
utility easements claim, yet were nonetheless submitted by the
AGF Trustees to the circuit court in derogation of the settlement
agreenent.
After careful review, we hold as follows. First, as to
the general apportionment of claims, Tim and Burk have, at most,
pointed out the existence of an ambiguity (as to whether the AGF
Trustees either (1) apportioned costs using a “cut-off date," or
(2) conducted a proper apportionnent of costs on a certain date),
which is insufficient to overcome the strong presumption that the
AGP Trustees, as the prevailing parties in this case, are
entitled to their costs. See Pulawa v, GIS Hawaiian Tel, 2006 WL
2632326 at *15, 112 Hawai'i 3, 143 P34 120, --- (Sept. 14,
2006); see also Hawai'i Rules of Civil Procedure Rule $4(d) (1)
(2000). Finally, as to Tim and Burk’s assertion that the AsF
Trustees improperly included costs related to the settled access
and utility easement claim, we find that Tim and Burk have not
Provided us any meaningful record citations to deposition
transcripts, court reporter invoices, or other supporting
‘
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
material on the record for their claim. Therefore, this argument
is waived. See e.g, HRAP Rule 28(b) (7) (2004).
Therefore,
IT IS HEREBY ORDERED that the judgment of the circuit
court is affirmed.
DATED: Honolulu, Hawai'i, December 13, 2006.
on the briefs:
Michael R. Marsh and
Seth R. Harris (of Case Bigelow & Gfpr~
Lombardi) for Plaintiffs/Counterclain
Detendants/befendanta/Appel lants/
Cross-Appellees Tinothy Foster Jones BeBe
sna’ Burk'W. Sones end Joan Diane
Sones, Trustees Under the Bure W.
Jones’and Joanie D. Jones Revocable Nut Arestieny ome
Living Trust, Agreenent Dated
Janueey 15,3993
Michael A. Lilly and Valerie M. A <
aco. (of Wing Lilly & Jones) for
Defendants /counterclasmants/ Coen Duty th
Appeliees/Cross-appellants
Mustees of the daniel J.
Fairbanks tT Trust. (bated
Sceober “Si, 1986), Teustees
Of the Siana Austin Trust
{Gates June 22, 1990) and
Trustees of the Janes’ Walker
Rustin Trusts” (oated dune 9,
1985 and June 22, 1990)
|
d331bff0-73e1-4223-a3af-4db1f59c0abd | Cummings v. State | hawaii | Hawaii Supreme Court |
[NOT FOR PUBLICATION IN WEST'S HAWAT'
REPORTS AND PACIFIC REPORTER,
No. 26975
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
WARREN C. CUMMINGS,
Plaintiff-Appellee/Cross-Appellant,
STATE OF HAWAI'I,
Defendant-Appel lant /Cross-Appellee,
and
DOE ENTITIES 1-10, Defendants.
lessiiny 62 9309002
APPEAL FROM THE FIRST CIRCUIT COURT
ety. No. 021-1833)
(ay: Moon, c.d., Levinson, Nakayama; Acoba, and Duffy 3J.)
Defendant-Appellant/Cross-Appeliee the State of Hawai'i
(hereinafter, State] appeals, and Plaintif£-nppeliee/Cross-
Appeliant Warren C. Cummings cross-appeals, from the Novenber 3,
2004 final judgment of the Circuit Court of the First Circuit! on
its findings of fact and conclusions of law and order in which
the court: (2) found the State Liable for the negligence of its
Department of Public Safety (OPS) in the operation and
maintenance of its correctional facilities that resulted in an
attack at the Halawa Correctional Facility (HCE) by an innate,
Douglas Hook, causing severe personal injury to another innate,
cummings; (2) found Mook 508, the state 258, and Cummings 158
comparatively negligent; and (3) awarded $126,240.68 in damages
| the Honorable Richard W. Pollack presided over this matter.
aan
[NOT-FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER
to Cunmings for medical expenses and pain and suffering, and
$1,696.13 in costs. ‘The State contends that: (1) the circuit
court clearly erred in finding that (a) Mook’s July 22, 1998 Jail
Initial Custody Screening Instrument was the “controlling
classification instrunent{,]" and as such, (b) “Mook should have
been housed in Maximum Custody upon his return from (the Hawal't
State Hospital (HS#),]" and (c) “not placing Mook in maximum
custody upon his discharge from treatment violated DPS’ [s] own
policies and procedures”; (2) the circuit court erred in ruling
that the attack on Cummings was reasonably foreseeable by the
States (3) the circuit court erzed in ruling that (a) the
administrative duties and procedures contained in the DPS
employee instructions and policies regarding the custody
classification of inmates created a tort duty in favor of
Cummings and established a standard of care and (b) the failure
to follow those employee policies and instructions gave rise to a
claim for relief sounding in negligence: and (4) the circuit
court erred in ruling that it had subject matter jurisdiction
because the State is exempted from liability by the discretionary
function exception of the State Tort Liability Act (STLA),
Hawai'i Revised Statutes (HRS) § 662-15(1) (1993). Cunmings
replies: (1) it is well-settled law that the State oves a duty
of care to its prisoners to take reasonable action to protect
them against the risk of foreseeable harm; (2) the State owed a
HAWAT'I REPORTS AND PACIFIC REPORTER ***
NOT FOR PUBLICATION IN WEST’
duty of care to Cummings to properly house Mook in order to
prevent Mook from harming other inmates; (3) based on Mook’ s
extensive history of unprovoked violence and the knowledge DPS
staff had of that history, the circuit court's finding of
foreseeability is not clearly erroneous; (4) the circuit court
did not clearly err in finding that the State breached its duty
of care; and (5) the circuit court correctly ruled that the
discretionary function exception does not apply here. Finally,
Cummings asserts that the State’s appeal is frivolous and moves
for sanctions pursuant to Hawai'i Rules of Appellate Procedure
(HRAP) Rule 38.
on cross-appeal, Cunmings raises the following points
of error: (1) the circuit court erred in granting the state's
motion for order to apportion liability? (2) the circuit court
erred in failing to impose liability on the State for being
responsible for the acts of Nook, a ward of the State; (3) the
circuit court clearly erred in finding Cunmings 15% comparatively
negligent; (4) the cizcuit court abused its discretion by failing
to sanction the State for a pattern of egregious discovery
violations; and (5) the circuit court abused its discretion in
modifying Cunmings’ taxation of costs. In reply, the State
contends: (1) the circuit court properly applied HRS § 663-10.5
(Supp. 2001) to apportion liability to Mook; (2) Cummings waived
any claim based on a theory of vicarious liability; (3) the State
[NOT FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER
is not vicariously Liable for Mook’s conduct; (4) the circuit
court correctly determined that Cunmings contributed to the
altercation that caused his injuries; (5) the circuit court did
not abuse its discretion in resolving the discovery issues; and
(6) the circuit court’s award of costs was not an abuse of
discretion.
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 hold as
follows:
(1) The circuit court did not err in ruling that the
discretionary function exception, HRS § 662-15(1),? did not apply
to the instant case because the classification of inmates is an
operational level act concerning “routine, everyday matters, not
requiring evaluation of broad policy factors” inasmuch as the
classification instruments are to be completed by DPS personnel
in an objective fashion, using the point system in a mathematical
process resulting in a score that determines the custody level of
the inmate, See Tseu ex rel. Hobbs v. Jevte, 88 Hawai'i 95, 68,
962 P.2d 344, 347 (1998) (stating that in deciding whether
# HRS § 662-15 provides in relevant part
‘This chapter shall not apply to:
(2) Any claim based upon’ . . the exercise or performance
of the failure to exercise or perform a discretionary
fonction of duty on the part of a state officer or employee,
whether of not the discretion involved has Dees abssed(-)
NOTFOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER
actions of state officials fall within the discretionary function
exception, this court must “determine whether the challenged
action involves the effectuation of a ‘broad public policyl,]‘ on
the one hand, or routine, ‘operational level activity(,)’ on the
other”); Breed v. Shaner, 57 Haw. 656, 666, 562 P.2d 436, 442
(1977) (noting that operational level acts are “those which
concern routine, everyday matters, not requiring evaluation of
broad policy factors”) (quoting Rogers v. State, 51 Haw. 293,
297, 459 P.2d 378, 381 (1969)); Upchurch v, State, 51 Haw. 150,
154, 454 P-2d 112, 115 (1969) (“[I]£ the acts of negligence
alleged and proven were the failure of employees to carry out
their duties as prescribed by the rules, or their failure to
exercise due care in the performance of their duties, such acts
or omissions would not be exempted and would be actionable under
+ cf. Taylor-Rice v, State, 91 Hawai'i 60, 78, 979
P.2d 1086, 1104 (1999) (stating that where “the State's own
the (STLA]
policy indicated that the guardrails should have been brought
into compliance with contemporary engineering standards,
the decision not to improve the guardrail constituted an
‘operational level’ decision and not a ‘broad public policy’
decision protected under the ‘discretionary function
exception’ ”)
(2) The circuit court did not err in ruling that the
State, by reason of the special relationship created by its
12+ NOT FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER ***
custody of Cunmings, was under a duty to take reasonable action
to protect Cummings against unreasonable risk of physical harm.
See Knodle v. Waikiki Gateway Hotel, Inc., 69 Haw. 376, 385, 742
P.2d 377, 383 (1987) (“The existence of a duty owed by the
defendant to the plaintiff, that is, whether such a relation
exists between the parties that the community will impose a legal
obligation upon one for the benefit of the other -~ or, more
simply, whether the interest of the plaintiff which has suffered
invasion was entitled to legal protection at the hands of the
defendant, is entirely a question of law.” (Quotation signals,
ellipsis, and citations omitted.)); Buf vs Honolulu Police Dep't,
89 Hawai'i 315, 320, 972 P.2d 1081, 1086 (1999) (stating that
this court reviews a trial court’s conclusion of law with regard
to the duty of care that a defendant owes to a plaintiff ina
.gligence action “de novol,] under the right/wrong standard” of
Pulawa v, GDE Havaiian Tel, 112
Hawai'i 3, 13, 143 P,3d 1205, 1215 (2006) (“[I}n the context of
review) (citations omitted
determining the existence and scope of a duty, foreseeability is
a question of law for the court to resolve.” (Citations
onitted.)); Haworth v. State, 60 Haw. 557, 563-64, 592 P.2d 820,
624-25 (1979) (“It is well settled that a state, by reason of the
special relationship created by its custody of a prisoner, is
under a duty to the prisoner to take reasonable action to protect
the prisoner against unreasonable risk of physical harm. The
++ NOT FOR PUBLICATION IN WEST'S HAWALT REPORTS AND PACIFIC REPORTER ***
duty arises out of the deprivation by the state of the prisoner’s
normal opportunities to protect himself, particularly through
avoidance of places or situations which involve risk.”)
(3) There is substantial evidence in the record to
support the circuit court's finding that Mook’s attack on
Cummings was reasonably foreseeable, including: (1) Mook’ s
Initial Custody Instrument classified him as maximum custody,
based on his extensive history of viclence, including his assault
on Adult Correction Officer (ACO) Craig Massey in 1997 and his
threats against ACO Alan Wong and Unit Team Manager Milton
Kotsuba in July 1998 (2) numezous court-ordered examiners, whose
reports were forvarded to Oahu Community Correctional Center
(occe) and HCE, reported that Mook’s violence and mental illness
continued throughout his stay at HSH including kicking and
punching the nurses station in May 1999 and slapping another
patient in June 1999; and (3) upon Mook's arrival at OCCC during
the warden-to-warden transfer, Sgt. Antonio placed him in
solitary confinenent because Mook was known to be extremely
violent and prone to erratic behavior, and Sgt. Anotonic did not
want to allow Nock back into the general population even after
being assured, incorrectly, that Mook had been cleared to be
there. Sea Bulawa, 112 Hawai"i at 13, 143 P.3d at 1215 (stating
that foreseeability in the context of breach is a question of
fact); Doe Parents No, 1v. State, Dep‘t of Educ., 100 Hawai'i
HAWAT REPORTS AND PACIFIC REPORTER ***
NOT FOR PUBLICATION IN WEST’
34, 82, 58 P.3d 545, $93 (2002) ("The test of what is reasonably
foreseeable is not one of a balance of probabilities. That the
danger will more probably than cthervise not be encountered on 2
particular occasion does not dispense with the exercise of care.
the test is whether there is sone probability of harm
sonable and prudent person would
sufficiently serious that a r
take precautions to avoid it.” (Brackets, quotation marks, and
citations omitted.));
(4) There is substantial evidence in the record to
support the circuit court’s finding that the State breached its
duty of care because the State failed to exercise reasonable care
to protect Cummings from the reasonably foreseeable attack of
Mook by failing to properly house Mook in maximum custody. See
Doe Parents No. 1, 100 Hawai'i at 62, 58 P.3d at 593 (“Whether
there was @ breach of duty or not, ice., whether there was a
failure on the defendant’s part to exercise reasonable care, is a
question for the trier of fact.” (Quoting Knodle, 69 Haw. at
386, 742 P.2d at 383.) (Brackets omitted.)). Given Mook’s
extensive history of violence of which DPS employees knew or, in
the exercise of reasonable care, should have known, the circuit
court did not clearly err in finding that it was not reasonable
for DPS employees to ignore the innate classification system and
(a) allow Mook to remain in HCF’s medium security module upon his
return from HSH, (b) transfer Mook to OCCC in the warden-to-
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
warden transfers, and (c) allow Nook to remain in OCcc’s medium
security module upon his transfer thereto, See Tavlor-Rice, 91
Hawai'l at 69, 979 P.2d at 1095 (stating that findings of facts
shall not be set aside unless clearly ezroneous); State vw.
Okumura, 78 Hawai'i 363, 392, 894 P.2d 60, 69 (1995) ("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 nonetheless left with a definite and firm conviction
that a mistake has been made.” (Citation onitted.)). Contrary
ko the State’s assertions, it was not reasonable for DPS
employees to assume that (a) Mock was “cured” of his mental
Alinesses and propensity towards violence upon his return from
Si and (b) the determination that Mook vas “fit to proceed”
meant that he was no longer violent and dangerous. Sse HRS
§ 704-403 (1993) (stating by implication that a person is “fit to
proceed” if the person has the “capacity to understand the
proceedings against the person” and can “assist in the person's
own defense”) ?
(5) Sanctions against the State are not warranted here.
See HRAP Rule 38 (“If a Hawai'i appellate court determines that
> gnasmuch ae the State did not contest the circuit court's
determination that the State's failure to exercise reasonable cere to pr
hare from cecurring to Canmings was 2 substantial factor in bringing about
CGmminge” Injuries, any objections thereto are waived, gag HRAP Rule 26(b] (4)
(points not presented in accordance with this section will be
Gisregerdedi.)°1) HRAP Rule 28(b)(7) ("Points not argued may be deened
waivea.").
1#** NOT FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
an appeal decided by it was frivolous, it may, after a separately
filed motion or notice from the appellate court and reasonable
opportunity to respond, award damages, including reasonable
attorneys’ fees and costs, to the appellee.”); Canalez v. Bob's
Appliance Serv. Ctr., Inc., 89 Hawai'i 292, 300, 972 P.2d 295,
303 (1999) (defining a frivolous claim as “a claim so manifestly
and palpably without merit, so as to indicate bad faith on the
pleader’s part such that argument to the court was not required”)
(quoting Coll _v. McCarthy, 72 Haw. 20, 29, 804 P.2d 881, 887
(1991)
(6) The circuit court did not err in interpreting HRS
§ 663-10.5' and granting the State’s motion for order to
apportion liability. See State v. Levi, 102 Hawai'i 282, 285, 75
P.3d 1173, 1176 (2003) (stating that statutory interpretation is
a question of law reviewable de novo”) (quoting State v. Arce,
84 Hawai'i 1, 10, 928 P.2d 843, 852 (1996).
First, the State and Mook are joint tortfeasors. See
HRS § 663-11 (1993) (**[JJoint tortfeasors’ means two or more
persons jointly or severally liable in tort for the same injury
as a torts
+ Rs, § €63-10.5, ontitied “sovernment enti
abolition of Joint and ‘several Liability,” provides:
Notwithstanding sections 663-11 to 663-13, 663-16,
663-11, and section 663-31, in any case where a government
entity’ it determined to be'a tortfeasor along with one oF
Rore other tortfeasors, ihe government enticy shall be
‘izeibucanle to the government entity.
(Emphasis added.)
10
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
to person or property, whether or not judgnent has been recovered
against all or some of them.”); Gump v. Wal-Mart Stores, Inc., 93
Hawai'i 417, 422, 5 P.3d 407, 412 (2000) (*A party is liable
within the meaning of section 663-11 if the injured person could
have recovered damages in a direct action against that party, had
the injured person chosen to pursue such an action.” (Citation
omitted.)).
Second, the plain language of the statute does not
require the State to file a claim against Mook to have liability
apportioned to him. See Hawai'i Pub, Employment Relations Bd. v.
United Pub, Workers, 66 Haw. 461, 469-70, 667 P.2d 783, 789
(1963) (“statutory construction . . . does not authorize the
interpolation of conditions into a statute -- additional terms --
not found in the statute considered as a whole.” (Citation
omitted.) +
Finally, apportioning Mook's liability pursuant to HRS
$ 663-10.5 did not violate Cunmings’ constitutional right to due
process inasmuch as the statute is rationally related to the
legitimate state interest of insulating the State from being
accountable to plaintiffs for more than that percentage share of
the damages attributable to the State.’ See In re Applications
* cummings has not alleged that he was deprived of notice or of an
opportunity to be heard at needed to sustain 4 procedural due process clain,
see for Hawai'i 73, 80, 110 P.3d 397, 404 (2008) ("The basic
Set IG cafes “Eeadoral due process of law require notice and an opportunity to
be heard at a Reaningful tine snd in a seaningful manner before governnental
Seprivation of @ aignificane property interest.” (Citation omitted.))7 nor
(continued...)
a
‘+++ NOT FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFICREPORTER ***
k sh, 82 Hawai'i 329, 349, 922 P.2d 942, 962
(1996) ("To establish an ‘as applied’ violation of substantive
due process, an aggrieved person must prove that the governnent’s
action was clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or
general welfare.” (Citation omitted.}}; Doe Parents No. 1, 100
Hawai'i at €7, 58 P.3d at 598 ("The legislative intent underlying
HRS § 663-10.5 was clearly to insulate governmental entities . .
from being held accountable to plaintiffs for more than the
degree of fault associated with its employee's tortious
contribution to the plaintiff’s injury(.]”); cf. Plumb v. Fourth
Jud. Dist. Court, $27 P.2d 1011, 1016 (Mont. 1996) (reaffirming
that “apportionment of Liability among those responsible for a
person’s danage is a legitimate government concern”) (citing
Newville v. State, 883 P.2d 793, 803 (Mont. 1994)); Hatt v
Hettich, 593 N.W.2d 383, 390 (N.D, 1999) (stating that it is a
“Legitimate legislative goal” to “apportion{] responsibility for
damages based upon fault”); Snilev v, Corrigan, 638 N.W.2d 151,
154 n.7 (Mich. Ct. App. 2002) (stating by implication that
holding defendants accountable only for damages in proportion to
*(. continued)
has Cumings denonstrated that he uas deprived of a fundamental right
protected by substantive due process, gaa Ek vs Boas, 102 Hawai'i 269, 297,
‘5 Bsa 1260, 1186 (2003) ("Substantive due process has been defined ag thet
which protects those fundamental rights and Liberties which are impiieit in
the concept of ordered liberty.” "(Internal quotation signals, ellipsis,
citations, and Brackets omitted.)}, Ae such, these argonents will not be
Sdaressed further herein.
12
+++ NOT FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER *
their percentage of fault is a legitimate state interest and
finding “no logical basis to conclude that evidence regarding the
culpability of all tortfeasors involved in an incident,
including non-parties, would) render the jury’s verdict less
accurate") (citation omitted);
(7) ‘The circuit court did not err in failing to impose
liability on the State for being responsible for the acts of
Mook. See Tavlor-Rice, 105 Hawai'i at 109-10, 94 P.3d at 664-65
("[T)he State’s liability is limited by its sovereign immunity,
except where there has been a ‘clear relinguishment’ of immunity
and the State has consented to be sued. This court has noted
that the State has waived immunity to suit only to the extent as
specified in HRS chapters 661 and 662.” (Citations omitted.)):
HRS § 662-2 (1993) ("The State hereby waives its immunity for
Liability for the torts of its emplovees and shall be liable in
the same manner and to the same extent as a private individual
under like circumstances[.]” (Emphasis added.});
(8) Notwithstanding Cummings’ assertions that he did
not contribute at all to Mook’s attack, there is substantial
‘evidence in the record to support the circuit court's finding
that Cummings was 15% comparatively negligent. See Okumura, 78
Hawai'i at 392, 894 P.2d at 89 (“A finding of fact is clearly
erroneous when (1) the record lacks substantial evidence to
support the finding, or (2) despite substantial evidence in
a3
++ NOT FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
support of the finding, the appellate court is nonetheless left
with a definite and firm conviction that a mistake has been
made.” (Citation omitted.)); Geldert v. State, 3 Haw. App. 25%,
266, 649 P.2d 1165, 1170 (1982) (stating that “[a]n appellate
court ‘should exercise considerable restraint in reviewing the
conclusion of the fact-finder’” on the subject of negligence and
comparative negligence) (citation omitted);
(9) The circuit court did not abuse its discretion in
resolving the discovery issues inasmuch as, notwithstanding the
delays and difficulties caused by the State’s untimely production
of certain documents, there is no indication that the State
intentionally withheld documents and it cannot be said that the
State accrued any significant benefit from, or that Cummings was
ultimately prejudiced by, the State’s conduct. See Lester v.
Rapp, 85 Hawai'i 238, 241, 942 P.2d $02, 505 (1997) ("We review
the grant or denial of . . . sanctions for abusive litigation
practices under the abuse of discretion standard.” (Citations
omitted.)1; Office of Hawaiian Affairs v, State, 110 Hawai'i 338,
351, 133 P.3d 767, 780 (2006) (“[AJn abuse of discretion occurs
where 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.” (Quoting Ranger Ins.
Co. vs Hinshaw, 103 Hawai'i 26, 30, 79 P.3d 129, 123 (2003).))+
Kawamata Farms, Inc, v. United Agri Products, 86 Hawai'i 214,
ua
NOT-FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
242-43, 948 P.2d 1055, 1083-84 (1997) (noting that this court
reviews cases of alleged discovery violations with three factors
in mind: (a) “the offending party’s culpability, if any, in
destroying or withholding discoverable evidence that the opposing
party had formally requested through discovery”; (b) “whether the
opposing party suffered any resulting prejudice as a result of
the offending party’s destroying or withholding the discoverable
evidence”; and (ce) “the inequity that would occur in allowing the
offending party to accrue a benefit from its conduct”) (citing
Richardson v, Sport Shinko (Waikiki Corp.), 76 Hawai'i 494, 507,
880 P.2d 169, 182 (1994))5
(20) the circuit court did not clearly exceed the
bounds of reason or disregard rules or principles of law or
practice to the substantial detriment of Cummings in denying his
mediation costs. See Schefke v. Reliable Collection Agency,
Ltd, 96 Hawai'i 408, 456, 32 P.34 52, 100 (2001) (“An award or
denial of costs is reviewed under the abuse of discretion
standard.” (Citation omitted.)}; Wong v. Takeuchi, 86 Hawai'i
46, 54, 961 P.2d 611, 619 (1998) (“Although the trial court has
discretion in the matter of allowing or disallowing costs, that
discretion should be exercised sparingly when the requested
expenses are not specifically allowed by statute or precedent.”
(Quoting Tradewinds Hotel, Inc, v, Cochran, @ Haw. App. 256, 271,
799 P.2d 60, 68-69 (1990).))+
as
HAWAT'I REPORTS AND PACIFIC REPORTER,
NOT FOR PUBLICATION IN WEST'S
(11) The cizcust court did not abuse its discretion in
denying Cummings’ taxation of transcript costs. See idai‘
(22) The circuit court did not abuse its discretion in
reducing Cummings’ costs for in-house copying charges from $0.25
per copy to $0.10 per copy. See id, at 53, 962 P.2d at 618
(stating that the burden of proving the correctness of a
particular cost request shifts to the party claiming it after
objections have been filed to the specific item):
(23) The ciroust court did not abuse its discretion in
denying Cunmings’ request for trial exhibits, photographs, and
trial binders. See id, at §5, 961 P.2d at 619 ("As a general
rule, routine expenses related to operating a law practice are
not taxable costs."); id. at $4, 961 P.2d at 619 (“Although the
trial court has discretion in the matter of allowing or
disallowing costs, that discretion should be exercised sparingly
+ to the extent that the cizcuit court interpreted HRS § 607-9 (1992)
and the cese lav to mean that the court did not have discretion to award costs
ot enumerated in the statute, the circuit court erred. See Schethe, 96
Hawaii at 459, 32 P.36 at 103 (HRS $ 607-3 gives courts discretion in
determining what costs should be avarded.”); ond, 60 Hawai'i at §4, 961 P.2d
St 619 (stating by implication that courts have discretion to award costs not
enumerates by statute or case law). Tt is well established, however, that “an
Sppeliate court nay affirm a judguont of the lower court on’ any ground in the
Fecord which supports affirmance(.]” Bios v. fac, Thansfer 4 Karehouse, Inc.,
433 Hawai'i 452, 459, 903 P.24 1273, 1280 (1995) (citation and brackets
omitted); soe also Kawanats Fame, 56 Hawai'i at 247, 948 P.2d at 1088
(slwjhere the circuit court™s decision is correct, its conclusion will not be
disturbed on the groung that it geve the wrong reason for sterling.”
(Geoting Raves v.-kubovana, 76 Hawai'i 137, 140, 670 P.2d 1261, 1286
(G304)))+ Here, the cireait court’ s decision does nct warrant vacatur
inasmuch as this court has stated that “[ajlthough the trial court has
discretion in the matter of allowing or disallowing costs, that discretion
Should be exercises sparingly when the requested expenses are not specifically
fallowes by statute or precedent (,]” Hong, 88 Hawai at 54, at 961 F.2d at 619
[quoting Teadswings, 8 Haw. App. at 211, 799 P.2d at 68-68), and neither HRS §
67-9 nor case Law authorizes the cost of copies of trial transcripts.
16
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
when the requested expenses are not specifically allowed by
statute oF precedent.” (Quoting Tradewinds, @ Haw. App. at 271,
799 P.2d at 68-69.))7
(14) The circuit court did not abuse its discretion in
denying Cummings’ request for parking costs. See id. (allowing
parking costs as part of intrastate travel expenses requested in
conjunction with interisland travel); id. ("Although the trial
court has discretion in the matter of allowing or disallowing
costs, that discretion should be exercised sparingly when the
requested expenses are not specifically allowed by statute or
precedent.” (Quoting Tradewinds, 8 Haw. App. at 271, 799 P.2d at
68-69.)). Therefore,
TT 18 HEREBY ORDERED that the circuit court's
November 3, 2004 final judgment is affirmed, but for the reasons
stated herein.
DATED: Honolulu, Hawai"i, December 29, 2006
on the briefs:
Dennis K. Ferm and Gorm
Cindy 8. Inouye, Deputy .
Attorneys General, for SPE
defendant -appel lant /cross-
Sppeliee State of Naval! Prsstas Gretta
steven T, Barta
(of Law Offices of
Steven T. Barta) and Yom. Dee by
Theodore Y.#. Chinn
(of Law Offices of Theodore
Chinn) for plaintiff-appellee/
crose-appellant Wazren C.
Cummings
7
|
7d405786-6757-468f-b868-2aa8542c2575 | State v. Kekuewa | hawaii | Hawaii Supreme Court | PAMr mRARY
NO. 27248
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAT'I, Petitioner-Appellee,
PHILIP KALA KEKUEWA, Respondent-Appellant.
Se
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD TRAFFIC NOS. 004151343; 004151341; 004151338)
‘ORDER ACCEPTING APPLICATION FOR WAIT OF CERTIORARI
‘AUD REQUESTING FURTHER BRIEFING
2
(By: Nakayama, J., for the court?)
Petitioner-Appellee State of Hawaii's Application for
weit of Certiorari filed on Noverber 6, 2006, is hereby accepted
and will be scheduled for oral argument. The parties will be
notified by the appellate clerk regarding scheduling.
I? 18 FURTHER ORDERED that the parties shall, within 30
days from the date of this order, file a supplemental brief
addressing the issue whether this court's interpretation of
Hawai" Revised Statutes ("HRS") § 291E-61(b) (Supp. 2002), in
State vi Domingues, 106 Hawai'i 480, 107 P.3d 409 (2005), is
applicable to the underlying prosecution commenced on October 11,
2004, given the subsequent amendments made to HRS § 291£-61(b)
effective January 1, 2004. See 2003 Haw. Sess. L. Act 71, § 1,
at 123-24. The supplemental briefs shall not exceed 18 pages.
DATED: Honolulu, Hawai'i, December 14, 2006.
FOR THE COURT:
Puta Gera aren
Associate Justice
Brian R, Vincent
for petitioner-appellee
on the writ
gensidered by: Moon, C.o., Levinson, Nakayama, Acoba, and Dutfy, 93.
|
41c5bd7d-d6a9-4cf8-b562-758a6f70afd8 | Williams v. Marks | hawaii | Hawaii Supreme Court | No. 27236 a
A, 3
XN THE SUPREME couRD oF THE staTE OF Hawas'se/?
CHRISTOPHER R. WILLIAMS, Petitioner
oats
CIRCUIT, STATE OF HAWAT'T and EMELITA S. LAURENTE, Respondante.
ORIGINAL PROCEEDING f
(CIV. NO. 04-1-1764~09) (4%,
4%,
NG PETIT ROH
(By: Woon, C.J., Levinson, Nakayama, Acoba, and Duffy Nyy
pon consideration of the petition for a writ of
prohibition filed by Petitioner Christopher R. Williams and the
papers in support, it appears that Petitioner fails to
denonstrate he is entitled to issuance of a writ of prohibition.
therefore,
17 1S HEREBY ORDERED that the petition for a writ of
Prohibition is denied without prejudice to any remedy Petitioner
nay have by way of appeal from any adverse judgment.
DATED: Honolulu, Hawas't, May 2, 2008.
Carlos D. Perez-Nesa
for petitioner on
the writ Gorm
Liwevemey—
Decseen bodraciney corer
ems
Yom Ret
|
09a9b4a4-d5d5-4418-aadd-bf29008b9f1a | State v. Davalos | hawaii | Hawaii Supreme Court | No. 27270
IN THE SUPREME COURT OF THE STATE OF HAMAEE,, 3
a
STATE OF HAWAI'I, Respondent /Plaintiff-Appetis
ams
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 041-0844)
ER ACCEPTING APPLICATION FOR MRI RTIORAR!
(By: Acoba, J., for the court")
Petitioner /Defendant-Appellant Hanin Deswyn Davaloa’s
application for writ of certiorari, filed on October 23, 2006, is
hereby accepted and will be scheduled for oral argument. The
parties will be notified by the appellate clerk regarding
scheduling.
DATED: Honolulu, Hawai'i, December 1, 2006.
FOR THE COURT:
i
‘associate Justice
Jon N. Tkenaga, Deputy
Public Defender, for
petitioner/defendant-appellant,
fon the application.
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 33,
|
83e24adc-bc6c-4503-aea8-666b14549a64 | State v. Sabog | hawaii | Hawaii Supreme Court |
No. 24835
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
STATE OF HAWAI'I, Petitioner-Appellee
12 aay sao
DANA L. SABOG, Respondent-Appellant
aang
me
CERTIORARI TO THE INTERMEDIATE COURT OF APPH
(CR. NO. 01-1-0412)
(By: Nakayama, J., for the court’)
Petitioner-Appellee’s Application for Writ of
Certiorari filed on April 13, 2005, is hereby granted.
DATED: Honolulu, Hawai'i, April 21, 2008.
FOR THE COURT:
Pune Coreen ree
Associate Justice
Mark Yuen, Deputy
Prosecuting Attorney,
for petitioner-appellee
State of Hawai'i
‘court: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
|
c033b1b0-d9d2-48eb-8e1f-648f82348a60 | United Public Workers, AFSCME, Local 646, AFL-CIO v. City and County of Honolulu | hawaii | Hawaii Supreme Court |
a
xo, 27018 i 3
1m THE SOPRENE COURT OF THE STATE OF MAMAS
—eeaesss“"vt"v"ere X=
In the Matter of 7 2
uITED PUBLIC WORKERS, AFSOME, LocaL 646, arL-ato, &
Tnisaoaepetieg
snd
CITY AND COUNTY OF HONOLULU, MUFI HANNEMAN!, Mayor,
and ERIC TAKAMURA, Director, Department of Environmental
Services, City and County of Honolulu (2004-027),
Employer-Appellants
APPEAL FROM THE FIRST CIRCUIT COURT
(S.P. NO. 04-1-0475)
‘ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Appellee United Public Workers’
motion to dismiss the appeal of Employer-Appellant City and
County of Honolulu for lack of jurisdiction, the papers in
support and opposition, and the records and files herein, it
(1) Appellant is appealing from a circuit court
appears that:
order granting a motion for provisional remedies pursuant to HRS
§ 658-8 (Supp. 2004) and an order denying a motion to vacate the
order granting provisional remedies; (2) the right to appeal is
purely statutory and exists only when given by some
constitutional and statutory provision. Chambers v, Leavey,
2 pursuant to Mawal'l Rules of Appellate Procedure Rule 43{c) (2004),
Mayor Mufi Hlannonan and Director Eric Takemura were substituted as parties to
the instant appeal
oan
60 Haw. 52, 57, 587 P.2d 807, 810 (1978); (3) the circuit court
did not enter a final judgment in the underlying casey (4) HRS
$§ 658A-28 governs appeals in cases brought pursuant to HRS
chapter 658A, and the orders being appealed in the instant case
do not fall within that group of orders set forth in HRS $ 658A-
26 from which an appeal may be taken; (5) the underlying circuit
court proceeding was not brought pursuant to HRS chapter 380;
thus, HRS § 380-10, which allows appeals in cases brought
pursuant to HRS chapter 380, is inapplicable; (6) Association of
Owners of Kukui Plaza v. Swinerton & Walberg Co, 68 Haw. 98, 705
P.2d 28 (1985) is inapplicable. therefore,
IT 1S HEREBY ORDERED that the motion to dismiss is
granted, and this appeal is dismissed for lack of appellate
jurisdiction.
DATE!
Honolulu, Hawai'i, May 9, 2005.
Herbert R. Takahashi
for Union-Appellee
on the motion grr
Kenneth 8. Hipp and :
Nichole K. Shimamoto SbiParinte
(of Marr Hipp Jones &
Wang) and Paul 7. Renee Oe eupa nes
Touflyana, clark Rirota,
th Florencio Cr Baguio, Ion
See, ‘Depecies Corporation
Seanaehs for Employer Yore anaes be
Ropelleste in opposition
|
8c61da89-0c50-4b81-a2d1-6abf5a138d15 | State v. Matavale | hawaii | Hawaii Supreme Court | No. 27476 2
12930902
IN THE SUPREME COURT OF THE STATE OF HAWAT‘S:
STATE OF HAWAI2, »
Respondent /Plaintiff-Appellee/Cross-Appellans)
IJEVA MATAVALE,
Pet itioner/Defendant-Appel lant /Cross~Appellee
sees
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CRIMINAL NO. 05-1-1397)
(By: Duffy, J-, for the court")
Petitioner/Defendant-Appellant/Cross-~Appellee Ijeva
Matavale’s application for a writ of certiorari filed on
Novenber 27, 2006, is hereby accepted and will be scheduled for
oral argument on the following sole issue: “whether the Family
court committed reversible error when it instructed the jury to
continue deliberations and directed the jury to a previously
promulgated instruction after the jury had indicated that it was
deadlocked.” The parties will be notified by the appellate clerk
regarding scheduling.
IT IS FURTHER ORDERED that the parties may, within 30
days from the date of this order, file a supplemental brief
court Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
ase
addressing the sole issue to be discussed in oral argunent. The
supplemental briefs shall not exceed 10 pages.
DATED: Honolulu, Hawai'i, December 21, 2006.
FOR THE CouRT:
eo
Associate Justice
Katie L. Lambert,
and Deborah L. Kin,
Deputy Public Defenders
for petitioner/defendant~
appellant /cross-appellee
on the application
|
a84186e0-d417-4cf8-8ee4-cb0beb26c660 | State v. Macomber | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
No. 27320
IN THE SUPREME COURT OF THE STATE OF HaWar’ z
aS
STATE OF WHAT, Flainestt-Appetiee SHES
va. a
SOSEY IAIOWA MACOMBER, Defendant-Appelienl =
APPEAL FROM THE THIRD CIRCUIT COURT
oe, No, 05-1-0286K)
‘SUMMARY DISPOSITION ORDER
(ey: Moon, C.J., Levinson Nakeyene, Recbe, and Duffy, 99.)
Defendant-appellant Bobby Laicha Maconber {hereinafter
swacenber"] appeals fron the third circult court's april 26, 2005
Jadgnent convicting him of the offenses of first degree burglary,
n violation of Hawai'i Revised statutes, (hereinafter “HRS") §
1708-610, first degree robbery, in viclation of HRS § 708-840,"
700-010 macpiary 1a the fines degen. (11 8 person
$700-040 nasbery in tne fiset degree, (1) A person comits
ja), The person ettenpte te kL22 ancther, or intenticnelly
aati
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
third degree theft, in violation of HRS § 708-832,” kidnapping,
in violation of HRS § 707-720, use of a firearm in the
rious
or knowingly inflicts or attempts to inflict
bodily" injuty upon ancther: or
(b) The person ie armea with e dangerous instrument and:
(3) “the person uses force ageinst the person of
anyone present wth intent to overcome that
bereon’® physical resistance of physical power
(4) The person threatens the imminent use of force
agesnse the person of anyone who is present with
intent te compel acquiescence to the taking of
of escaping with the property .
(2) _ Ae uses in thie section, “dangerou instrument” means
ony firearn, whether loaded oF not, and whether operable OF not,
‘or other weapon, cevice, instrument, material, or substance,
whether animate cr inanimate, which’ in the manner st it used oF
Threatened to be used is capable of producing death oF serious
bodily injury.
(3) Rébbery in the first degree se @ cl
A felony,
% RS § 708-832 (1953) provides as follows:
$708-932 Theft in the’ third degree. (1)' A person'connite
the offense of theft in the third degree if the person commits
these .
(a) Of property or services the value of, which exceeds
5100; er
(b) OF gasoline, diesel fuel or other reléted petroleun
Products used as propellants or any valve not
Exceeding £200.
(2) Theft inthe thire degree ts © misdemesrior.
‘HRS § 707-720 (1993) provides a¢ follows
'$707-720 Kidnapping. (1) A person commits the offense of
kicnepping if the persen intentionally or knowingly restrsins
another person with intent
a)" Held that person for reneom or reuard;
{b) Use that person ae a shield or hortagey
(el Facilitate the commission of a felony er f2ight
thereafter:
(a) Infllet bedity injury upon that person or subject that
person to = sexcel offense;
fe) Terrorize that person cr a third person: o
(i) Interdere with the performance of sny governmental or
political fonction.
(2) Except as provided in subsection (2), kidnapping is
class A felony.
(3) Tha prosecution fer kidnapping, st Le a defense which
reguces the offense tes ciate £ felony thet the defencent
voluntarily released the victim, alive and not suffering from
tie) bodily shjury, in safe place prior to
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
conmission of a felony, in violation of HRS § 134-6(a),* and
impersonating @ law enforcement officer in the first degree, in
violation of HRS § 710-1016.6. Maconber presents the following
points ef error on appeal: (1) the circuit court failed to
determine whether his statements, made while in police custody,
were voluntary; and (2) even if the circuit court concluded that
his statements were voluntary, its conclusion was erroneous
insofar as (a) the police violated HRS § 603-9(2) by refusing to
accommodate his request for counsel, (b) his fifth amendment
rights were violated because he was questioned while being held
-6(a) (Supp. 2003) provides as follows 7
ta) It shall be unlawful for a person to knowingly carry on the
person or have within the person's innediate contrel or
Ententionally use cr threaten to use a firesrm while engaged in
the conniteion of s separete felony, whether the firearm was
Icedes or net, and whether operable or not? provided that # person
‘not be provecutes uncer this subsection where the separate
felony ie
db felony offence cthernige defined by tHe chepter:
) The felsny offense of reckless endengering in the
Hirst degree under section 107-713;
(3) The felony offense of terrersetic threstening in the
Hirst degree uncer section [707-726(1) (ally {707
JAE(1) (iT, ana [707~716(2) (a) ]; oF,
(4) The felony’ offenses of criminal property damage in the
first cegree under section 708-820 sna criminal
property denage in the seccnd degree under section
Hoete2s anc the firearm is the instrument oF means by
which the property danage is ceused.
(Brackets in original
«HRS § 720-1026.€ (1993) previces as Follows:
§710-1026.6 Impersonating © law enforcenent officer in the
faret degree. il) A perech commits the offense of smpersonsting &
au enforcenent officer in the first cegree if, with intent to
deceive, the person pretence to be # law enforcement officer end
Geared with's fizesrm,
12)" “Tnpersenstang
degree ie a clase C felony.
enforcenent cfficer in the firet
'S HAWAII REPORTS AND PACIFIC REPORTER’
NOT FOR PUBLICATION IN WE:
in the cell block without proper Miranda warnings, and (c) he was
effectively denied his right to counsel when the police
interrogated him outside of his counsel's presence
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
Macomber’s opening brief fails to comply with the mandatory
requirements of Hawai'i Rules of Appellate Proceduge [hereinafter
“HRAP") Rule 28(b) (4) (iii) (2005) insofar as it fails to identify
“where in the record the alleged error was objected to or the
manner in which the alleged error was brought to the attention of,
the court or agency.” The circuit court may thus be affirmed on
that ground alone, See Onaka v. Onaka, 2006 WL 2500587, *13
(August 30, 2006) ("{W]e decline to canvas the record to verify
whether [the appéllant] appropriately preserved her points of
error on appeal by making a timely objection to the challenged
actions, and her appellate arguments are deened waived.”);
Kienker v, Sauer, 110 Hawai'i 97, 104 n.12, 129 P.3d 1125, 1132
n.12 (2006) ("The appellate courts are not obligated to search
the record to crystallize the parties’ arguments.”).
The foregoing violation notwithstanding, we further
hold that Nacomber's appellate arguments are without merit
inasmuch as: (1) the circuit court complied with its duty’ to
ensure the voluntariness of Macomber’s confession by granting the
Ses State v. Gears, 62 Hau. 198, 195-200, 600 F.2d 1142, 1143
(2979) (1a) tFLal Judge must Bake @ threshold ‘ation of the
voluntariness ef = confess: der it.)
bite, 1 Maw. App.
Gory to ceternine the
Fregence cf the jury and pricr to the 5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
prosecution’s “Notion To Determine Voluntariness Of Defendant's *
Statement”; and (2) Macomber’s confession was not obtained in
violation of his statutory and constitutional rights inasmuch
(a) assuming, arauende, that the more than twenty-four-hour delay
violated HRS § 803-9(2) (1993)," Macomber failed to demonstrate,
by a preponderance of the evidence, that it contributed to his
decision to confess,* (b) Macomber was adequately advised of his
constitutional rights on October 6, 2003, and he does not argue
that the warnings became stale" by the time the police attempted
© RS § 803-942) (1983) provides that
[1)t held be untawfud in any case of
[tio unseaconatly refuse or fail to make a reasonsble effort,
where the arrested perscn so requests end prepeys the cost of the
message, te send a telephone, cable, .oF wireless message through =
Police officer or another than the arrested person to the counsel
Ce member ef the arvested person's familyl-
+ See State v. Ecards, 96 Howas's 224, 239, 30 P.36 238, 283 (2001)
(oimnsie we he i the police did not use reasonable efforts to
contact counsel, Defendent failed to prove, by a
preponderance of evidence, that her stetements were ‘iilegaily cbtained."™");
Gia State ve Ababa, 101 Hawai'i 205, By 65 F-38 186, 164-65 (2003) ("On
the Fecora, thei ‘vidence to * preponderant degree... that the
Mielation of HRS §§ 80S-8(2) and €03-9(4) “ultinatery hed én adverse impact on
“[petitioner]’s icsting Eakards, 96 Hawai'i ct 239, 30
Piid-at 255.) (Brackets sn original.)
w S86, s.ca, United States v. Rodriques=Ereciads, 399 F.3¢ 1118,
1128 (9th cir- 2008) (“The Suprene Court hes eschewed per se rules mandating
thet a suspect be revadvieed of hie rights in certein fixed situations in
favor of # more flexible eproach focusing on the tetality of the
Eircunstences.") (Referencing 455 0.5. 42, 48-45 (2562)
(per curser) }s ‘S96 Paid 241, 246-47 {34 Cir. 2008)
[S[tyhe questicn whether a tine Japee renders Uirands warnings ‘stale’ may be
recuced €6 answering the questions’ (1) At the time the Mizanda warnings were
Provided, cig the defendant know ard nderetang hie righte? (2) dic anyening
Eccur between the warnings and the statenent, whether the passage of tine or
Sther intervening event, which renceree the defendant unsble to consider fully
ine properiy the effect cf an exercise cf weiver of those rights before making
Svetatenent to law enfercenent cfficers’")” (citing United states ¥. Veegues,
Geo F.Supp. 171, 377 0. Pe. 1888) .).
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
to execute the search warrant on his person on October 7, 2003,"
and (c) Macomber’s fifth amendment right to counsel was not
violated insofar as the police did not engage in substantive
questioning until he changed his mind and waived his
constitutional rights. Therefore,
IT IS HEREBY ORDERED that the circuit court’s April 26,
2005 judgment is affirmed.
DATE:
on the briefa:
Honolulu, Hawai's,
Brian J. De Lina,
of Crudele & De Lima
for defendant-appellant
Bobby Laicha Maconber
cynthia T. Tai,
Deputy Prosecuting Attorney,
for, plaintiff-appellee
State of Hawai'i
waives.)
See WRAP Rule 26(b)(7) (2008)
hold thet an accused,
police eniy through count
jethorities unt] counsel hi
police.7] (Enpnasis ecdea!
i272, izbe (2004)
guesticnes until ccuneel hae been ace
snitieten further cenminicetion, exchanges:
pelice.") (Citetions omitted
See Lovarcs vs arizens, 482 0.5,
eving expressed hie’ desire to deal with the
net subject te further
November 13, 2006.
a
-
Pa OS astuyarne
boas
Gone £. Doig 1h +
Pointe not argued may be deemed
477, 486-85 (1981) (*Ke further
nterregation by the
SNewei't 331, 142, 9¢ P30
("in other words, once an accuses her expreased his cesire
h police interrogators cnly through counsel, he canner, be further
Tebie te hin,
Unless the accutes
er conversations with the
|
8277ba4d-d56e-4614-b751-e872894de781 | Kauhi v. State | hawaii | Hawaii Supreme Court | Uw ubnany
¥** NOT FOR PUBLICATION
No. 26892
IN THE SUPREME COURT OF THE STATE OF HAWAI'Z 2
age 2
SAMSON K. KAUAI, Petitioner-Appellant, gale =
sg PP ge +
ve 23s 2 o
5
STATE OF HAWAI'I, Respondent-Appellee. Ss
APPEAL FROM THE FIRST CIRCUIT COURT
(S.P.P, NO. 03-1-0048)
Nakayama, J. for the court*)
upon review of the record, it appears that the circuit
court's August 31, 2004 order denying appellant's HREP Rule 40
petition for post-conviction relief was appealable by notice of
appeal filed with the circuit court within thirty days after the
order was entered. See HRPP 40(h); HRAP 4(b) (1). Appellant's
yd filed with the circuit court on
notice of appeal was de
october 6, 2004, the date the notice of appeal was received by
the clerk of the supreme court and transmitted to the clerk of
the circuit court, HRAP 4(a)(1). The notice of appeal deened
filed on October 6, 2004 was filed thirty-six days after entry of
the August 31, 2004 order and was untimely. Our recognized
exceptions to the requirement that notices of appeal be timely
filed do not apply in this case.
It further appears that appellant's notice of appeal
does not fall within the prisoner mailbox rule because the record
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy,
a3.
*** NOT FOR PUBLICATION ***
does not indicate that appellant tendered his notice of appeal to
prison officials at the Diamondback Correctional Facility for
forwarding to the clerk of the circuit court on or before
September 30, 2004. See Setala v. J.C. Penney, 97 Hawai'i 484,
40 P.3d 886 (2002). Thus, we lack jurisdiction. See Grattafiori.
ys State, 79 Hawai'i 10, 13, 897 P.2d 937, 940 (1995)
("[C]ompliance with the requirement of the timely filing of a
notice of appeal is jurisdictional, and we must dismiss an appeal
on our own motion if we lack jurisdiction.
Therefore,
17 IS HEREBY ORDERED that this appeal is dismissed for
lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, August 4, 2005.
FOR THE COURT:
Peete CNet
Associate Justice
|
effcba26-ee3a-4129-9301-e7603d06f364 | Office of Disciplinary Counsel v. Kea | hawaii | Hawaii Supreme Court | No. 28192
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
GILBERT P. KER, Respondent.
(oDC 06-029-8369, 06-052-8392)
01 olny) $1 930 002
DER OF SUSPENS!
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the record, it appears that (1)
Respondent Gilbert P. Kea is the subject of an investigation by
(2) Respondent Kea has not cooperated with
(3) Respondent Kea was duly served with
should not
Disciplinary Counsel,
Counsel’s investigation,
our Novenber 6, 2006 order to show cause as to why he
be suspended from the practice of law, and (4) Respondent Kea has
not responded to our Novenber 6, 2006 order to show cause.
Respondent Kea, having failed to cooperate with Disciplinary
Counsel's investigation and having failed to comply with a lawful
demand of this court is, therefore, guilty of failing to
Therefore,
cooperate with the disciplinary investigation.
2A of the
I IS HEREBY ORDERED, pursuant to Rule 2.1
that
ice of law
Rules of the Supreme Court of the State of Hawai'i,
Respondent Gilbert P. Kea is suspended fron the pract:
oan
in this jurisdiction, effective immediately and until further
order of this court.
DATED: Honolulu, Hawai'i, December 15, 2006.
Carole R. Richelieu,
Chief Disciplinary
Counsel, for petitioner Gorin
Gilbert P. Kea, Esq.,
respondent pro’ se Lica BYes.
\
Peas te ONT dates OF
(Oe
Game eu tr
|
483c2521-d973-4bdc-8e4a-89ee8e5b6520 | State v. Smith | hawaii | Hawaii Supreme Court | No. 26362
IN THE SUPREME COURT OF THE STATE OF HAWAEEIS
Hd 11 9309000
u
STATE OF HAWAT'T, Plaintiff-Appellee
EDWARD ALEXANDER SMITH, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT
WAILUKU DIVISION
(CASE NO. 02-97873)
ORDER
Duffy, J. for the court!)
Upon consideration of appellant's letter of
Novenber 29, 2006, which is deened # motion for extension of tine
to file an application for a writ of certiorari, it appears that
HRS § 602-59(c) (Supp. 2005), as anended by Act 149, 2006 Hawai'é
Session Laws, does not authorize the appellate court to extend
the ninety-day period for filing an application for a writ of
certiorari. Therefore, -
17 IS HEREBY ORDERED that the motion for extension of
time to file an application for writ of certiorari is denied.
DATED: Honolulu, Hawai'i, December 11, 2006.
FOR THE COURT:
ny
Gon &, Dusty « aAL
J
associate Justice XY
Re oe wh
‘considered by: Moon, C.J., Levinson, Nakayana, Acoba, and Duffy,
v3
aawd
|
8b914322-544f-437d-ab2f-db03d98cc7fb | Abaya v. Mantell | hawaii | Hawaii Supreme Court | LAW LBRARY
No. 27195
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
Sn
JOCBLYN ABAYA, Individually and as Next Friend of
WILLIAM PINEDA-ABAYA, CZARINA PINEDA-ABAYA, and
PHOEBE PINEDA-ABAYA, and as Special Administrator of
the ESTATE OF WILLIS ABAYA, Plaintifts-Appellees,
RICHARD MANTELL aka RICHARD MANDELL and
TEAM HEALTH WEST, Defendante-Appellees.
1 na fe) ACN SUN
aa
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 03-1-0592)
ORDER DENYING MOTION FOR RECONSIDERATION
Moon, C.J., for the court:
Upon consideration of party in interest-appellant American
Classic Voyages Company's motion for reconsideration, filed
November 3, 2006, the papers in support thereof, and the record
herein,
IT IS HEREBY ORDERED that the motion is denied
DATED: Honolulu, Hawai'i, November 13, 2006.
Normand R. Lezy (of Leong FOR THE COURT:
Kunihiro Leong & Lezy),
for party in interest-
appellant American Classic
aioe | Ll fF
ff sea 2
Ror ws
> consices
ad by: Moon, €.3.
Les
Chreuse Judge Abn, in place of Acoba
Putty, a., and
|
e01e0118-3707-4f37-b350-05e31c438661 | State v. Coronel | hawaii | Hawaii Supreme Court | No. 25975
IN THE SUPREME COURT OF THE STATE OF HAWAT'T.= =
STATE OF HAWAI'I, Plaintiff-Appellee,
APPEAL FROM THE THIRD CIRCUIT COURT
(CR. NO. 67-437)
ORDER DISMISSING MOTION FOR RECONSIDERATION
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
‘The motion for reconsideration filed on November 13,
2006 by Defendant~Appell
nt, Paul Dennis Coronel, aka Paul Kay
Coronel, requesting that this court review its summary
Gisposition order, filed on August 30, 2005, is hereby dismissed
as untimely
DATED: Honolulu, Hawai'i, November 22, 2006.
Richard D. Gronna
for defendant
appellant Paul Dennis Y
Coronel, aka, Paul Kay
Coronel, on the motion
|
96f13e80-b1e4-4ae7-8445-3b3430404ad1 | Willis v. Swain. S.Ct. Opinion, filed 10/26/2006 [pdf], 112 Haw. 184. | hawaii | Hawaii Supreme Court |
‘+e POR PUBLICATION TN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
== 000 =--
SHILO WILLIS, Plaintiff-Appellant,
CRAIG SWAIN and FIRST INSURANCE COMPANY OF HAWAII, LTD.
Defendants-Appellees,
and
DOE DEFENDANTS 1-100, Defendants.
wo, 25992
APPEAL FROM THE FIRST CIRCUIT COURT
(Civ. No. 01-1-0467-02)
DECEMBER 15, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
QPINION OF THE COURT BY LEVINSON, J.
As the prevailing party on appeal to this court in
Willis v. Swain, 112 Hawai'i 184, 145 P.3d 727 (2006)
(hereinafter, “Millis I”], the plaintiff-appellant Shilo Willis
requests fees and costs pursuant to Hawai'i Rules of Appellate
Procedure (HRAP) Rule 39 and Hawai'i Revised Statutes (HRS)
§ 431:10C-211 (2005).
2 WRAP Role 39 provides in relevant part:
(=) Civil costs: to whoa allowed. Except in criminal cases
or as otherwise provided by law, ... - if a judgnent is reversed
* ONtgets shall be taxed against che appell unless
Gtheiwise ordered; if-a judgrent is. - vacated, ., the
Costs shall be eliowed only as ordered by the appeliate
(c) Coste defined. Costs in the eppellate courts are
continued...)
aa
0+ FOR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER +*+
Willis requests a total of $22,088.95. The defendant-
appellee First Insurance Company of Hawaii, Ltd. (First
Insurance) has filed an objection and Willis has replied.
For the reasons discussed intra in part Ii, we grant
Willis’s request, in part, as set forth fully infra in part IIT.
I. BACKGROUND
The underlying dispute arose out of a traffic accident
in which Willis was a passenger in the defendant Craig Swain’s
(unbeknownst to Willis) uninsured vehicle. Willis I, 112 Hawai'i
at 167 & n.d, 145 P.3d at 730 6 n.4. As an impecunious public
benefits recipient, Willis’s only automobile insurance was a
“certificate policy” through the Joint Underwriting Plan (JUP),?
*..scontinued)
(e) Costs defined. Costs in the appellate courts are
defined as: {1) the cost of the original and one copy of the
reporter's transcripts if necessary for the determination of the
appeals 13) the fee for filing the appeal; (4) the cost of
printing or otherwise producing necessary copies of briefs and
Appendices, provided that copying costs shall not exceed 20¢ per
pages... and (6) any other costs autharized by statute or rule.
(a) Request for Fees and Coste; Objections
(2) Alparty who desires an suerd of attorney's fees and costs
Shall request them by submitting an itemized and verified BLL)
Of fees and costs, together with @ statement of authority for
each category of items and, where sppropriste, copies of
Invoices, Bills, vouchers, and receipts... . A failure to
provide authority for the award of attorney’ fees and costs
Sr necessary expenses will result in denial of thet request.
RS § 431:10C-211(a) provides in relevant part:
A person making 2 claim for personal injury protection
benefits may be allowed an svard of « reasonable sum for
attorney's fees, and reasonable costs of suit in an action brought
eee Magainst an Insurer who denies ‘a claim for benefits
Under the policy, unless the court upon judicial proceesing
Setermines shat che claim wes unreasonable, fraudulent, excessive,
or frivolous
A concise clarification of the difference between certificate
19 cole not
fort coverage
oF uninsured,
Ԥ 16-23-67 (1999)
(a) [(concerning certificate policies under HRS
(continued...)
‘10+ YOR PUBLICATION JN MEST’ 8 HAMAI'T REPORTS AND PACIFIC REPORTER
underwritten by First Insurance. 112 Hawai'i at 185-87, 145 P.3d
at 728-30. This plan did not include uninsured motorist (UM)
coverage, though First Insurance would later argue that it had
offered such benefits to Willis. See 112 Hawai'i at 187-88, 145
P.3d at 730-31. Accordingly, Willis lacked insurance that would
have covered her injuries resulting from the subject accident:
therefore, she filed an “assigned claim,” see supra note 2,
(0c-408 (Supp. 1998), which was also
pursuant to HRS § 43:
assigned to First Insurance. See 112 Hawai'l at 187 6 n.6, 145
P.3d at 730 6 n.6, First Insurance indicated that it would not
provide her with benefits pursuant to her assigned claim because,
First Insurance maintained, it had “offered” her an “applicable”
alternative to her assigned claim, in the form of UM coverage
that she, now regrettably, declined. 112 Hawai'i at 187-88, 145
P.3d at 730-31. Accordingly, Willis filed the underlying suit in
the circuit court of the first circuit, the Honorable Eden
Elizabeth Hifo presiding. 112 Hawai'i at 187, 145 P.3d at 730.
‘The circuit court avarded summary judgment in favor of First
Insurance and against Willis. 112 Hawai'i at 168, 145 P.3d at
731. Willis appealed. (The cizcuit court's disposition of
Willis's and First Insurance's direct and cross-claims against
Swain, 112 Hawai'i at 188 6 n.8, 145 P.3d at 731 € n.8, were not
challenged on appeal.)
( saconténued)
§G1:20E-407}) The (JUP) is intended to provide actor vehicle
Engurance and optionsi additional insurance in a convenient and
expeditious sanner for... persons who otherwise are in good
faith entitled to, bot Gnabie to obtain, moter venicle insurance
ret through ordinary methods
(b) [concerning assigned Claims under HRS § 431:10C-408)]
Another part of the JUP consists of the assignment thereto of
clains of victims for whom no policy {8 epplicable, such as the
hit-and-run victim who fs not covered by a motor vehicle insurance
policy.
+ FOR PUBLICATION IN WEST’ S HAKAI'T REPORTS AND PACIFIC REFORTER #+*
In our October 26, 2006 published opinion, we reasoned
that First Insurance had, at most, presented to Willis “an
invitation to initiate negotiation, not an offer” of UM coverage.
212 Hawai"i at 190 & n.11, 145 P.3d at 733 @ n.11. We concluded
that,
Fizet insurance having made no offer of UM coverage in
the first place, g fortiori, we cannot say that First
Insurance has desonstrated an “applicable” ang
“Iaentifi[able]" alternative to Willie's assigned claim. It
follows inexorably that First Insurance was not "entitled £0
Judgnent 25 matter of law".
212 Hawai'i at 190, 145 P.3d at 733.
Ultimately, we granted Willis's desired relief by
vacating] the circuit court's . . . judgment insofar as it
Aismissed Willis’s action against First Insurance and remand[ing]
for further proceedings consistent with [this court’s] opinion.”
See 112 Hawai'i at 191, 145 P.3¢ at 734. On November 20, 2006,
Willis filed the present request.
TI. DISCUSSION
A. Introduction
In her bill of fees and costs, Willis requests
reimbursement for attorney’s fees of $21,449.87 and for the
following costs: (1) transcripts ($143.08); (2) filing fees
($225.00); and (3) “Printing/copying of briefs/appendices”
(8271.00).
B. Fees.
1, The parties’ arguments
Willis requests reimbursement for the seventy-eight
hours expended on appeal by her attorney, at a rate of $275.00
per hour. First Insurance objects:
(tihere is no statutory authority to support (WiLiLa]’=
request for attorney's fees
inks 's"431:100-211 (0), gee supra note 1,1 provick
support.» . because [Willie] 1s not “lal person maki
4
[FOR PUBLECATION 11 WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *+*
claim for personal injury protection ((PEP)] benefits (.]"
fier} clash. . de"... for assigned claims cove
1 in fact) as & Lecipient of public assistance
berefiis, [wiliis) is expressly excluded from receiving PIP
Renefits, It de also s matter of record... that (her)
medical expense were paid for by the State of
Hawai l']i Department! of Hunan Service
SFiwns § 431:10-242 (2005) ("Where an insurer has
contested its liability under # policy and is ordered by the
gy, the polieyholser
‘etorney's fer
"
indo’ provides no support.
Twiiiia}"s request for payment of benefits by First
Ingurance is not nade uncer any “policy.” . =. BY
definition, a claimant ander the Assigned Clains Coverage
Progran is/a persca for whom “(n)o ‘insurance benefits
Under moter vehicle insurance policies are
spplicablel.1"
Wi11is counters that “this Court has specifically
regarded and treated a(n} . . . assigned claim as a ‘policy(.’]”
(citing Washington v, Fireman's Fund Ins, Cos., 68 Haw. 192, 708
P.2d 129 (1985).)
2. Analysis
We agree with First Insurance that Willis’s asserted
basis for fees, HRS § 431:10C-211(a), see supra note 1, which
applies where an insurer has “denie(d) . . . a claim. . . under
[a] policy” (emphasis added), is unavailing. Assigned claims are
creatures of statute and do not arise out of a contractual
relationship. On the other hand, Black’s Law Dictionary defines
a “policy” in the relevant sense as “[a] document containing a
contract of insurance.” Black's Law Dictionary 1196 (8th ed.
2004) (emphases added); accord United Benefit Life Ins. Co. v
McCrory, 414 F.2d 928, 932-33 (ath Cir. 1969); S.E, Colo
Homeless Ctr. v. West, 843 P.2d 117, 118 (Colo. Ct. App. 1992);
Maurer vy, Int'l Re-Ins. Corp., 86 A.2d 360, 365 (Del. 1952);
ns Int’) Re-Ine. Corp,, 74 A.2d 822, 360 (Del. 1950);
Fontenot v, Marquette Cas. Co., 235 So. 2d 631, 637 (La. Ct. App.
1970); Ine Casey, 540 N.W.2d 854, 857 (Minn. Ct. App. 1995);
Floars vy. Aetna Life Ins. Co., 56 S.£. 915, 916 (N.C. 1907
Banfield v. Allstate Ins. Co., 880 A.2d 373, 376 (N.H. 2005);
Hunt v. Nei. Fire Underwriters’ Ass’n, 38 A. 145, 147 (NAH.
1895); see also Thiene v. Union Labor Life Ins, Co., 138 N.E.2¢
857, 860 (I11. Ct. App. 1956); Francis v. Tex. & Pac. Ry.
Emplovees Hosp. Ass'n, 148 So. 2d 118, 120 (La. Ct. App. 1963)
Hurd v. Me. Mut, Fire Ins. Co., 27 A.2d 918, 922 (Me. 1942);
Anderson v. Nett, Bel) Tel. Cou, 443 N.W.2d 546, 549 (Minn. ct.
App. 1989); Delcampo v. N.J. Auto, Full Ins. Underwriting Ass'n,
630 A.26 415, 421-22 (N.J. Super. Ct. Law Div. 1993) (quoting
Meier v. Nad. Life Ins. Cou, 480 A.2d 919, 923 (WJ. Super. ct.
App. Div. 1984)); Modisette v, Found, Reserve Ins, Co., 427 P.24
21, 28 (N.M. 1967); Beramann v. Hutton, 101 P.3d 353, 358 (Or.
2004); Ellis v. RI, Pub, Transit Auth., 586 A.2d 1055, 1058
(R.1. 1991).
Furthermore, whereas the legislature enunciated that a
certificate policy “shall be deemed a policy for the purposes of
[the Insurance Code, HRS ch. 431],” the legislature did not
similarly categorize assigned claims. Compare HRS
§ 431:10C-407(b) (2) (concerning certificate policies); Unif.
Motor Vehicle Accident Reparations Act § 19(b), 14 U-L.A. 82
(2005 & Supp. 2006) (providing that an assignee insurer “has
- obligations as if [it] had issued a policy of basic
reparation insurance”); Kan. Stat. Ann. § 40-3116(d) (Westlaw
2006); Mass. Gen. Laws Ann. ch. 90, § 34N (Westlaw 2006); Minn.
Stat. Ann, § 658.63.2 (Westlaw 2006); Smith vs Earp, 449 F. Supp.
503, 507 (W.D. Ky. 1978) (mem. op.) (where insurer paid
plaintiffs’ assigned claim and opted not to intervene as subrogee
yet obtained reimbursement out of plaintiffs’ monetary judgment
pursuant to agreement between insurer and plaintiffs, holding
insurer responsible for plaintiffs’ attorney’s fees pursuant to
‘10+ POR PUBLICATION IN WEST’ 8 HAWAI'T REPORTS AND PACIFIC REPORTER
shas.
state statute that provided that “assign
obligations as if [it] had issued a policy of basic reparation
insurance” (emphasis added)) (construing Ky. Rev. Stat. Ann.
§ 304.39-170(2)), with HRS § 43:
oc-408 (concerning assigned
claims). “Expressio unius est exclusic alterius[ -- ]the express
mention of one thing implies the exclusion of another . . . .”
See, eas, State vs Harada, 98 Hawai"l 18, 42, 41 P.3d 174, 198
(2002) (internal quotation signals omitted).
Moreover, Willie’s citation to Hashington is
inapposite. In that case, the plaintiffs had no-cost no-fault
insurance policies, pursuant to HRS § 294-24(b) (2) (Supp. 1984),
ee 68 Haw, 194-95, 708 P.2d 131-32, which was the predecessor to
the current HRS § 431:10C-410(3) (A) (waiving premiums for public
assistance recipients) -- in other words, certificate policies.
Nowhere is the concept of an assigned claim mentioned, nor was
the meaning of “policy” in dispute.
Finally, one might argue (Willis does not) that fees
are simply a component of the “full [PIP] benefits” guaranteed to
assigned claimants by HRS § 431:10C-408(c) (1), but HRS
§ 431:10C-304(5) provides that “{no part of [PIP] benefits paid
shall be applied in any manner as attorney’s fees” and that,
here fees are authorized, they are “in addition to the [PIP]
benefits due” (emphasis added); in other words, the statutory
language inplies that the legislature considers fees a separate
species from PIP benefits.
We hold that the assigned claim coverage to which this
court deemed Willis entitled does not constitute a “policy” for
purposes of HRS § 431:10C-211(a). Consequently, we find, as
relates to the present matter, no legislative aim to rebut the
American rule whereby litigants pay their own legal expenses of
+94 FOR PUBLICATION IN WEST'S WAWAI'T REPORTS AND PACIFIC REPORTER *#*
Litigation, see generally Taomae v, Lingle, 110 Hawai'i 327, 331,
132 P.3d 1238, 1242 (2006).
c. Costs
HRS § 607-9 (1993) (“AL1 actual disbursements .
sworn to by an attorney or a party, and deemed reasonable by the
court, may be allowed in taxation of costs.”) and HRAP Rule 39,
see supra note 1, permit this court to tax Willis’s costs against
First Insurance, her only substantive adversary on appeal, see
Willis 1, 112 Hawai'i at 185, 188 n.8, 145 P.3d at 728, 731 n.8.
First Insurance does not object to Willis’s averred
costs. Accordingly, we grant the total amount of costs
requested.
IIT. CONCLUSION
In light of the foregoing analysis, we deny Willis’s
request with respect to attorney's fees and grant it, in part,
with respect to costs.’ First Insurance is ordered to pay Willis
a total of $639.00.
DATED: Honolulu, Hawai'i, December 15, 2006.
on the request: Gor
Fernando L. Cosio,
for the plaintiff-appellant MevaBbrnenn
Shilo Willis
Bradford ¥.x. siiss Dewi ON aameyare
lyons, Brandt, Cook s iar
Hiranaten for defendant-
appellee First Insurance
Company of Hawaii, Ltd.,
on the objection
enc necay th,
9 ills appears to have either committed a minor addition
arrive at her “Totel Costs Requested” (eight cents in First Insurance's favor)
or simply rounded off the grand total from 5639-08 to $639.00. For the sake
of fairness, we reach the sane result by ignoring the decinal portion of the
transcript charge:
|
37f679a0-4ce2-4eff-8ed1-408981deb66d | Brende v. Hara | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
=-000-==
PHILLIP A. BRENDE? DOLORES L. BRENDE, Petitioners,
‘THE HONORABLE GLENN S. HARA, JUDGE OF THE CIRCUIT COURT OF THE
‘THIRD CIRCUIT, STATE OF HAWAII, Respondent,
KUULEI K. KUALIZ; JOHN DOES 1-10; JANE DOES 1-10; DOE
PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; ROE “NON-PROFIT”
‘CORPORATIONS 1-10; and ROE GOVERNMENTAL ENTITIES 1-10,
Respondents, Real Parties In Interest.
No. 27964
ORIGINAL PROCEEDING
(CIV. NO. 05-1-0108)
z
DECEMBER 4, 2006
‘TON
(py: Duffy, J., for the court")
IT IS HEREBY ORDERED that the opinion of this court,
filed on November 27, 2006, is corrected as follows:
Pages 14 and 15: the references to HRCP and FRCP “Rule
27(c)" are corrected to read “Rule 26(c)"; and
Page 14: the parenthesis in “(see supra note 4" is
deleted.
‘considered by: Moon, C.J-, Levinson, Nakayama, Acoba, and
buffy, JJ-
oats
The Clerk of the Court is directed to incorporate the
foregoing changes in the original opinion and take all necessary
steps to notify the publishing agencies of these changes.
DATED: Honolulu, Hawai'i, December 4, 2006.
FOR THE couRt: (er %
Yoo c, Duaasi SEAL
B 3)
Associate Justice
8 oe WY
|
cc3e7f24-c019-493f-9012-465a454e3828 | Thompson v. Kyo-Ya Company, Ltd. | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000:
LETIZIA THOMPSON, Plaintiff-Appellant
KYO-YA COMPANY, LTD., dba SHERATON-MAUI HOTEL,
befendant-Appeliee
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
and DOE GOVERNMENTAL
DOE NON-PROFIT ENTITIES 1-10;
ENTITIES 1-10, Defendants
No. 26040
ORDER OF AMENDMENT
(crv. No. 02-1-0209)
1€2 Ha 02 AONsee
NOVEMBER 20, 2006
RCOBA AND DUFFY, JJ.
The concurring opinion of Acoba, J., with whom Duffy,
J., joined, appended to the majority opinion of the court filed
on Novenber 9, 2006, is amended as follows (addition is double
underscored) :
‘The last sentence of the first paragraph on page 4:
the word “not” is added between the words “would” and “be” so
that the sentence reads: “Thus, under the Crichfield test her
subjective intent was not to engage in an ‘exclusively
recreational purpose’ and her claim would pot be precluded under
the HRUS.”
aatis
‘The Clerk of the Court is directed to incorporate the
foregoing change in the original opinion and take all n
sary
steps to notify the publishing agencies of this change.
Bah
Gorm, Ducted +
|
7650c84f-1669-456b-8e73-ae5bfe994381 | Soderlund v. Administrative Director of the Courts | hawaii | Hawaii Supreme Court | LAW LIBRARY
+++ NOT _FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
No. 26025 &
IN THE SUPREME COURT OF THE STATE OF HAWATS=
DAVID C, SODERLUND, Petitioner-AppeliantzSe
cOWWY ty 9309002
ast
2
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI'I,
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(JRO3-0012; Original Case No. 03-00591)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Petitioner-Aappellant David C. Soderlund (*Soderlund”)
appeals from the Judgment on Appeal of the District Court of the
First Circuit (“district court”) filed on July 16, 2003, which
Administrative Director of the
affirmed Respondent-Appell
Courts! (“Administrative Director") one-year revocation of
Soderlund’s driver's license.
on appeal, Soderlund argues that the district court
(2) ruling that Soderlund had not been “denied both
rights to a hearing on the ADLRO access
erred by:
his [constitutional]
restrictions [requiring that all prospective attendees, including
the hearing respondent and his counsel, sign in and present
ring) and his rights
identification in order to attend a ADLRO h
to a public hearing ()" (2) ruling that Soderlund’ s
(“HPD”) Officer
("Fsts") “in
arresting officer, Honolulu Police Department
Jose Villanueva, administered field sobriety tests
accordance with (National Highway Transportation Safety
Administration] ((*]NETSA(")] standards(]” (emphasis omitted)
(some capitalization omitted); (3) ruling that Soderlund had not
been denied due process of law despite the fact that ADLRO review
[NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
hearings from ADLRO license revocations are conducted (a) in de
nove fashion, and (b) without following any established
procedure, in violation of the Hawai'i and United states
Constitutions and Hawai's Revised Statutes ("HRS") §§ 291E-31
through 2918-50 (administrative driver’s license revocation lav);
(4) ruling that the “HPD-396B” implied consent form (for alcohol
content or drug testing) was not fatally defective in (a) failing
to inform Soderlund that he had a legal right to withdraw his
consent to alcohol or drug testing, (b) failing to fully inform
Soderlund of the necessary requirements for ADLRO to revoke a
driver's license, where an alcohol or drug test is refused, and
(c) failing to inform Soderlund that a revocation of his driver's
License would also deprive him of the ability to use a moped or a
vessel; (5) holding that HRS § 291E-34(a) (2) (Supp. 2001)?
(requiring that a notice of administrative revocation of a
driver's license explain in “clear language” the distinction
between an administrative revocation and 2 criminal license
suspension or revocation pursuant to HRS § 291E-61 (Supp. 2002)*)
\ Rs § 2928-34(a) (2) (Supp. 2002) provides in pertinent part:
(a) The notice of administrative revocation shall provide, at a
minimum Ghd in clear language, the following general information
Felating to administrative revocation:
(2) an explanation of the distinction between adainistrative
revocation and @ suspension oF revocation imposed unde
Section 2912-61 of 291E-61.5.
1 tes § 2918-62 (a) (1) (Supp. 2002), the version in effect at the
time of Soderlund’s arrest, provided in pertinent part
(2) A person commits the offense of operating 2 vehicle under the
AntLuence of an Antoxicant if the person operates oF assum
actual physical control of a vehicle
(continued...)
[NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
had not been violated; and (6) failing to reverse the ADLRO
hearing officer's ruling on account of the hearing officer's
improper citation of unpublished Hawai'i court opinions arising
from ADLRO appeals. (These argunents are hereinafter referred to
as “Argument Nos. 1-6.")
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold as follow:
(2) Argument No. 2 is without merit because even
assuming that Officer Villanueva’s testimony as to the walk-and-
turn and one-leg stand FSTs was inadmissible, after careful
review, we hold that there remained a wealth of competent
evidence (more than substantial evidence) supporting the Hi
ring
officer's finding that Soderlund, by a preponderance of the
evidence, was operating his vehicle under the influence of an
intoxicant. See HRS $$ 2916-38 (e) (3) (A) (Supp. 2002)? and 291E-
61; Shorba v. Bd. of Educ., 59 Haw. 388, 398, 583 P.2d 313, 319
cas7a).
(continued)
“) nite under the inflvence of alcohol in an anount
sufficient’ to impair the person's noreal mental faculties
ability to care for the person and guard against casualt;
(2) While under the influence of any drug that impairs the
person's ability to operate the vehicle ina careful and prudent
+(e) The (Administrative Director] shall affirm the administrative
revocation only if the direstor determines that:
evidence proves by a preponderance that:
the influence of an intomscant >
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
(2) Except as to a jurisdictional subargunent within
Argument No. 3, which is discussed infra, Arguments No. 1, 4, 5
6, and Argument No. 3 (except as to the jurisdictional
subargunent) have been previously addressed by this court and
found to be without merit.‘
(3) Finally, with respect to the jurisdictional
subargunent within Argument No. 3, we hold, as Soderlund admits,
that our decision in Castro v, Admin, Dir. of the Courts, 97
Hawai'i 463, 40 P.3d 865 (2002), is controlling, because no proof
of his refusal to submit to a blood, breath, or urine test was
required in order for the Hearing Officer to revoke Soderlund’s
driver's license (in this case, it was sufficient that there was
more than substantial evidence to support the Hearing Officer's
finding that Soderlund, by preponderance of the evidence,
operated his vehicle while under the influence of an intoxicant
in violation of HRS § 2918-61, see HRS § 2918-36(e) (3) (Al). We
decline Soderlund’s invitation to overrule Castro. As such, the
+ $90 goa:
As to Argument No. 1 in the instant appeal,
Courts, 108 Hawai'i 380, 398, 120 P-3d 249, 257 {200517
As to Argument No. 3 in the instant appeal (except as to the jurisdictional
Subargunent), Freitas v. Admin. Dir, of the Courts, 108 Hawai'i ly 44-45, 116
P-3d 673, 686-87 (2005); Dunaway v, Adwin, Dir, of the Courts, 108 Hawai'i at
Jay 83, 127 Pod 108, 114 (2008}7
As to Argunent No. 4 in the ins
Piaget 15-1);
wnt appeal, Dunaway, 108 Hawai't at 85-87, 127
[As to Argument No. § in the instant appeal, id. at 87, 117 P.3d at 1187
‘As to Argument No. 6 in the instant appeal, Freitas, 108 Mawas's at 46-47, 116
Pig at 688-89: and
As to Arguments Nos, 3 through 6 of the instant appeal (except as to. the
Juriedictional subargunent within Argument No. 3), ustar, 108 Hawai'i at 353-
S4y 120 F.3d at 252-53.
NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER
district court's Judgment on Appeal is affirmed.
‘Therefore,
IT IS HEREBY ORDERED that the Judgment on Appeal of the
district court is affirmed.
DATED: Honolulu, Hawai", December 13, 2006.
on the briefs:
Earle A, Partington
for Petitioner-Appellant
David C, Soderiund
Girard D. Lau, Beta
Deputy Attorney General,
for Respondent-Appel lee
Administrative Director of, Pwo owen are
the Courts, State of Hawai't
Yorn €. Daath +
|
142cc50a-d801-4cad-95ba-3f787a52a918 | State v. Gallardo | hawaii | Hawaii Supreme Court |
NO. 25345
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
gl
=
STATE OF HAWAT'I, Respondent -Appel lant £4)
JERRY A. GALLARDO, Petitioner Appetiee gf
eS
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 01-1-0746)
vA
‘OY
hd 12,
oats
oT
opps PPL
(By: Moon, C.J., for the court")
Petitioner-appellee Jerry A. Gallardo’s application for writ
of certiorari, filed april 11, 2005 is denied.
DATED: Honolulu, Hawai‘s, April 21, 2005.
Deborah L. Kim, FOR THE COURT:
Deputy Public Defender,
for petitioner-appellee Gg
Ye Justice >
Nakayama, Acoba, and Duffy, ov.
* considered by: Moos, ¢.J.,
|
7e426aa4-0ad6-40a0-876c-dba06b94379b | United Public Workers, AFSME, Local 646 v. Dawson International, Inc. Dissenting Opinion by J. Acoba [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRARY
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
== 000 ---
UNITED PUBLIC WORKERS, APSCME, LOCAL 646,
AFL-CIO, Applicant-Appellee,
vs.
DAWSON INTERNATIONAL, INC., Respondent-Appellant.
wo, 27105
APPEAL FROM THE FIRST CIRCUIT COURT
(8. P. NO. 04-1-0119)
DECEMBER 18, 2006
€0:2 Hd 81 9309002
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.;
ACOBA, J., DISSENTING
OPINION OF THE COURT BY MOON, C.J.
Respondent-appellant Dawson International, Inc.
(Pawson) appeals from the January 6, 2005 final judgment of the
Circuit Court of the First Circuit, the Honorable Bert I. Ayabe
presiding, confirming an amended arbitration award in favor of
applicant-appellee United Public Workers, AFSCME, Local 646, AFL~
CIO hereinafter, UPW). Briefly stated, the instant case
involves a prepaid legal service plan implemented by UPW,
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
pursuant to Hawai'i Revised Statutes (HRS) chapter 488, for the
benefit of UPW’s members. UPM, as plan sponsor, entered into a
two-year contract with Dawson, as the plan aduinistrator.? Nine
months into the contract, UPW terminated the contract, demanding
that Dawson return the balance of prepaid premiums that Dawson
held in reserve. In response, Dawson maintained, inter alia,
that UPW had breached the contract by its unilateral termination,
thereby entitling Dawson to damages. Pursuant to the dispute
regclution provisions contained in their contract, the parties
proceeded to arbitration, which initially resulted in an
arbitration award in favor of Dawson in the amount of $25,074.00,
plus the right to retain the balance of the monies held in
reserve, amounting to $87,240.08. Thereafter, UPW filed a motion
to modify or correct the arbitration award in the Circuit Court
of the First Circuit, the Honorable Dexter D. Del Rosario
presiding, on the ground of an evident mathematical
miscalculation. Dawson, on the other hand, moved for
confirmation of the award. Persuaded by the arguments advanced
by UPW, the circuit court remanded the case to the arbitrator and
> was § 488-1(3) (1593) defines “prepaid legal service plan’ as
vice plan in which the cost of the
« group legal
fare prepaid by the group menber or by sone other pe
Organization in the mesber’s behalf. A group legal
plan ie a plan by which legal services are rendered to
Individual nombere of a group identifiable in terms of sone
common interest
+ “Plan administrator" means “those persone who have discretionary
authority for the management of the plan or for the collection, management, o
Giebursement of plan moneys." HRS §486-1(2) (1993)
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
stayed the circuit court proceeding until the arbitrator ruled on
the alleged mathematical miscalculation. Ultimately, the
arbitrator reversed himself, issuing an amended award in favor of
UPW in the amount of $169,924.00. Thereafter, the circuit court
confirmed the amended arbitration award, denied Dawson’s motion
to vacate the amended award and confirm the original award
(Dawson's motion to vacate), and entered final judgment in favor
of UPW on January 6, 2005.
on appeal, Dawson challenges the circuit court’s
confirmation of the amended arbitration award and denial of
Dawson’s motion to vacate. Specifically, Dawson maintains that,
because HRS chapter 658 (1993) [hereinafter, HRS chapter 658 or
the old arbitration law] -- as opposed to HRS chapter 658A (Supp.
2005) [hereinafter, HRS chapter 658A or the new arbitration law]
-+ governs the instant case, the circuit court erred in remanding
the case to the arbitrator to consider UPW’s motion to modify or
correct the original arbitration award.
Based on the discussion infra, we hold that: (1) HRS
chapter 658 governe the instant case; and (2) under HRS chapter
658, the circuit court did not have the authority to remand the
case to the arbitrator. Accordingly, we vacate the circuit
court‘s January 6, 2005 final judgment and remand this case for
further proceedings consistent with this opinion.
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
BACKGROUND
A. tual Backaround
‘The following facts are substantially taken from the
original arbitration award, dated March 18, 2004, in light of the
view of the
deference required to be shown to the arbitrator’
facts. See United Paperworkers Int’ Union v. Misco, Inc., 484
U.S. 29, 37-38 (1987) ("Because the parties have contracted to
have disputes settled by an arbitrator chosen by them rather than
by a judge, it is the arbitrator’s view of the facts and of the
meaning of the contract that they have agreed to accept.") -
1. The Agreement Between UPW and Dawson
on February 24, 2000, UPW entered into a two-year
contract with Dawson [hereinafter, the Plan Agreement]* under
which Dawson was to administer a prepaid legal service plan (the
Plan) for the benefit of approximately 11,000 to 12,000 state and
county employees in collective bargaining Units i and 10.‘ The
Plan was established to provide eligible unit employees
> section 4.01 of the Plan Agreement specifically provides that the
agreement
hall remain in effect for two (2) years unless modified by
ynutual agreement. Te shall be reneved thereafter for two
(2) year periods unless it ie terminated after subsission of
a written notice of termination at least ninety (90) days a
Gavance of the termination by the UPW or [Dawsca)
+ unit 2 employees are non-cupervisory blue collar public workers,
including garbage nen and Janitore. Unit 20 employees are blue collar public
{net tutional, health, and correctional workers, including state hospital
workers and prison guards. Employers of Unit 1 and Unit 10 employees are the
Beate of liawals and the counties. UPW ip the exclusive bargaining
Eepresentetive for Unit 1 and Unit 10 worker
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
thereinafter, the covered employees] access to certain free or
discounted legal services.
Specifically, Dawson agreed, inter alia, to “select a
qualified referral panel of licensed attorneys,” and UPW agreed
to make monthly premium payments to Dawson. Premiums were to be
paid by the state and county employers to UPW, and, in turn, UPW
was to transfer the premiums to Dawson. Upon receipt, Dawson was
required to place the prepaid premiums in a segregated account
(the reserve) to be disbursed at its discretion to pay for the
Plan's attorneys, operation of the Plan, legal education,
research, and other uses, such as increasing benefits to the
covered employees.
‘The Plan Agreement also contained the following dispute
resolution procedures (hereinafter, the dispute resolution
provisions] :
5.01
Should either party allege a violation of this
agreement, the party alleging the violation shall
notify in writing the other party of the
Violation within thirty (30) days of the
Vislatson or within enirty (90) days of
alleged violation.
Violation Resolution,
Should the violation not be resolved within thirty
(Go) days after notification of the violation(,] the
Feeolution procedure aa provided in Section s.03 shall
apply.
‘The parties shall subait the violation to mediation
before resorting to arbitration. The mediator (s)
shall be selected by mutual agreement of the parties,
in the event the violation is not resolved in
Bediation{,] the vielatien shall be submitted to
Sibitration, Within eifteen (18) days after the
Conclusion of mediation|,] the parties shall select an
Arbitrator by mutual agreement." Negotiations,
‘mediation or arbitration shall be conducted on O'ahu,
Hawai'i.
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
(underscored and bold emphases in original.) The Plan Agreement
became effective on April 3, 2000 and was to expire on March 31,
2002.
Termination of the Plan Agreement
on January 2, 2001, nine monthe into the twenty-four
month contract, UPW notified Dawson that the Plan was
“terminated” effective December 31, 2000 “because the
employer [s’] contribution that funded the . . . Plan [vas]
terminated,” ice., the employers had ceased to contribute the
premiums necessary for the viability of the Plan.’ Although UPW
indicated it would pay Daveon for any operational expenses
incurred through December 31, 2000, UPW demanded that the balance
of the funds in the reserve be returned to UPW.
on January 5, 2001, Dawson informed UPW of ite position
that UPW was in breach of the Plan Agreement inasmuch as the
agreement did not provide the right to unilaterally terminate the
contract. Dawson further advised UPW that: (1) the unused
balance of premiums would remain in the r
operating costs
delivery of “legal services, education programs,
and other financial obligations for the term of the contract”
(internal quotation marke omitted); and (2) “[it] will continue
to provide legal services to covered employees until such time a
Stn ite anowering Brief, UPW proffers a different reason as to why it
terminated the Plan Agreement, i.e., because it ‘believed that the (P}lan was
Primarily benefiteing Dawoon and ‘not the Unit 1 and Unit 10 employees.”
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
resolution is reached by approval of both parties* (internal
quotation marks and original brackets omitted). Correspondence
between the parties revealed that UPW continued to maintain its
position that Dawson comply with the termination notice while
Dawson maintained ite position that, because the contract had a
two-year minimum term, it would continue to comply with ite
contractual obligations.
B. Broce:
1. The Arbitration Proceeding
Inasmuch as the parties made no progress toward
resolution, Dawson demanded, on March 21, 2001, that Dispute
Prevention & Resolution, Inc. (the DPR) begin the resolution
procedure set forth in section 5.03 of the Plan Agreement, i.e.,
the mediation/arbitration process. For reasons that are unclear
from the record, the alternative dispute resolution process was
never completed
Two years later, on April 17, 2003, UPW suggested that
the parties submit the dispute to arbitration.’ on August 25,
2003, the parties selected attorney James T. Paul ap the
arbitrator. Three days later, on August 28, 2003, UPW executed
© Several developments -- not relevant to the disposition of thi
appeal -- inpacted the pace of the resolution of the parties’ dispute, such as
a criminal proceeding against the then-director of UPW, Cary W. Rodrigues, and
the medical condition of Davson’s principal, Donald Dawson,
not indicate whether the parti
Aiepute to mediation prior to resorting to arbitration, as required by section
5.03 of the Plan Agreenent. The parties, hovever, do not dispute that the
Plan Agreement contained a provision for’ binding arbitration
7 me record dot
*** FORPUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
an “Agreement to Participate in Binding Arbitration"
(hereinafter, the DPR Arbitration Agreement], which provides in
its entirety:
By agreement of the parties set forth below, [the DPR] /Janes
Paul, Eeq. have agreed to conduct a binding arbitration of
the mattere in controversy betw
the parties on an inpartial bes:
ae a noutral(,] the Arbitrator will not act as attorney or
‘The parties, DPR. and Janes Paul.
Sdvocate for any party,
Erocedures & Brotocoia. ap entablished by [thel DPR.
Unless the parties’ agreement provides otherwise, the
Arbitrator mist cetersine all issues submitted to arbitrator
by the parties and may grant any and all remedies that the
Rebitrator determines to be Just and appropriate under the
Jew. In the Award of Arbitrator, the arbitrator shall issue
2 "overnination on the issue of all arbitration-related fees
Gnd costs, including: Arbitrator’s compensation and
expenses; (the) DPR'e fees and expenses; and, if provided
foe parties’ agreenent or the Submission to
arbitration, attorney's fees and costs
‘the DPR/Arbitrator fee ie $275.00/hour, plus GET, plus any
ut tnitially the’ parties a
Feaponalbie for the Dra/acbitrator's ees and out of pocket
a (the) DPR shall collect
Scpocite from che partie in advance for all fees and
expenses to be incurred in thie matter. All funds deposited
with [the] DPR shall be held in trut- (The) DPR vill love
Payment to the Arbitrator at the conclusion of this matter
End in accordance with this Agreement.
(Emphasis added.) Dawson, however, did not execute the DPR
Arbitration Agreement until January 30, 2004, after UPW agreed to
anticipated fees of
advance Dawson's share of the arbitrator’
$6,000
+ apparently, on January 27, 2004, the DPR advieed the partic
unless Davaon paid ox UPW advanced the $6,000 initial deposit for the
Grbitrator's anticipated arbitration fen and Dewson returned ite counter-
Signed copy of the BPR Arbitration Agreement, the DPR intended to cancel the
arbitration hearings. The same day, UPW informed the DPR that it was "willing
to aleo pay Dawson's $6,000 share in order to keep the azbitration hearings in
place snd to have this matter finally resolved.”
that,
<8.
———_$_§_§_§_-
*#* FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
on February 12, 2004, the parties filed their
cespective avbitration briefs with the DPR. Dawson essentially
claimed that UPW breached the Plan Agreenent and, therefore, owed
paweon an additional $1,388,674 in plan premiums (equivalent to
premiums for the remaining fifteen months of the two-year
contract). UP, on the other hand, asserted that it rightfully
terminated the agreement, and, in any event, Dawson had a duty to
mitigate ite damages. UPW maintained that it was entitled to the
return of the balance of prepaid funds being held in reserve by
pawson ae of the date UP# terminated the Plan Agreement, iiss,
December 31, 2000.
2. ‘the Original arbitration Award
After a three-day arbitration hearing, which was held
on February 18, 19, and 20, 2004, the arbitrator issued hie
arbitration award on March 18, 2004 (the original award). The
arbitrator found that UPW's early termination was a breach of the
plan Agreement and that, therefore, Dawson was entitied to all of
ite administrative fees anticipated to be paid under the two-year
agreenent, plus its out-of-pocket expenses, subject to Dawson’ s
gpligation to mitigate those expenses. In determining the amount
of damages, the arbitrator relied upon Dawson's Plan Income
geatenent and other financial records, which reflected, inter
alia, the following:
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
SSS
Premiums received from UPH ........... $799,326.00
Total expenses paid from the Reserve .. -719.023.60
Subtotal ee eeeeeeeeee eevee 80,302.40
Interest/Investment Gain +6.937.68
Il glartzao%oe
Ultimately, the arbitrator (1) permitted Dawson to retain the
TOTAL Balance in Reserve.
balance in the reserve, i.e., $87,240.08, and (2) required UPR to
Pay Dawson an additional $25,074.00 for fees and expenses
incurred and anticipated to be paid over the two-year contract
period, ice., from April 3, 2000 to March 31, 2002.
UPW's Motion to Modify or Correct the Original
Award and the Amended Arbitration Award
Immediately after the entry of the original award, UPW
ent a letter, dated March 22, 2004, to the arbitrator, seeking
corrections of the amounts awarded based upon an alleged evident
mathematical miscalculation. UPW essentially argued that the
double payment of fees."” The
original avard constituted
letter apparently was sent pursuant to Rule 31 of the DPR
Arbitration Rules (DPRAR), which provides that “[plarties may
apply to the [a)rbitrator(s) to modify, correct or clarify an
la}ward, pursuant to the procedures specified in the [Revised
Uniform Arbitration Act (RUAA)], Section 20." “Section 20,"
* As previously indicated, the arbitrator decided that Dawson was
entitled to all of ite administrative fen anticipated to be paid under the
Ewonyear agreenent, plus ite out-of-pocket expenses, subject to Dawson's
obligation to mitigate those expenese. At the art
maintained that it had utilized a portion of ite aduinietrative fe
for the expenses of continuing to Gperate the Plan. The alleged
payment of fees" centers around the arbitrator having apparently credited to
Baveon, ‘administrative fees ~~ the amount utilized to pay expenses. but
also avarded all of the administrative fees anticipated to be pala under the
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ies, HRS § 6584-20 (Supp. 2005)," allows a party to request the
arbitrator to correct evident mathematical miscalculations in an
arbitration award.”
on March 23, 2004, the arbitrator informed both parties
that, ‘absent an agreement by both parties to re-open this
matter, or unless ordered by the [circuit clourt, the
[alrbitrator no longer has jurisdiction in this matter.” By
letter dated March 30, 2004 to the arbitrator, Dawson “object [ed]
to any attempt by UPW to reopen the [a]rbitration hearings
wns § 658-20, entitled “change of avard by arbitrator,” provides in
relevant part:
(2) on motion to an azbitrator by a party to an
arbitration proceeding, the arbitrator may modify oF correct
iS} upon a ground stated in section 658A-24(a) (2) oF
Nr
(2) Bechuge the arbitrator has not made a final and
Sefinite award upon = claim subaitted by the
parties to the arbitration proceeding; or
() Fo'clarity the award.
HRS § 65@A-24 (a) (1) (Supp. 2005) provides
movant receiv
Geena or within ninety days afte
wethce of a modified or corrected evard pursuant to section
Besac3o, the court shall modify or correct the award if
ti) chere was an evident mathematical miscalculation
Gran evident mistake in the description of «
Pecsop thing, or property referred to in the
on the sane day, Daweon sexved, but did not file, a motion to
confira the original award, pursuant to, jnter alia, HRS § 658A-22 (Supp.
2008). HRS § 650A-22 provides:
After a party to an arbitration proceeding receives
notice of an avard, the party nay fake a motion to the court
for an order cenfitming the award at which time the court
Shui tseve a confizming order unless the avard is modified
SbeLb tected pursuant. te section 6584-20 or ESEA-24 oF 18
Siested pursuant. to section 6568-23)
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Additionally, via a letter dated April 5, 2004 to the arbitrator,
Dawson argued that HRS chapter 658 (the old arbitration law)
applied because (1) HRS § 658A-3 (Supp. 2005) of the new
arbitration law provides in relevant part that “this chapter
governs an agreenent to arbitrate made on or after July 1, 2002,"
(emphases added) and (2) the Plan Agreement was made on February
24, 2000. Also, under the old arbitration law, specifically, ERS
§ 658-10 (1993), quoted infra, the court -- not the arbitrator -
is authorized to modify or correct an arbitration award.
UPH, however, maintained that:
(t]he old arbitration [aw] does not apply to thie issue
because the parties expressly agreed to abide by. [the DFRAR]
when signing DPR's *hgreenent to Participate. in’ Binding
Arbitration(,1* ((executed by UPW on August 28,2003, and by
Dawson on January 30, 2004)]- Rule 31 of [the DPRAR] “allows
UPW to request that {the arbitrator] modify, correct oF,
clarity the Award pursuant to procedures epecified in the
new arbitration [law.]
On April 8, 2004, DPR, through ite president and CEO, Keith w.
Hunter, informed the parties that:
Pursuant to HRS [chapter] 658 and baced on the parties"
earlier understanding that this matter vas governed und
HRS [chapter] 658, the (alzbitrator in this matter, James
Pout, ie (2) Abeent an order from an
functus officio.
appro (cloure, M- Paul lacks authority to act on the
request for reconsideration (.]
2 on erat 4 of Dizectors of octation of
apa 3 73 Haw. 201, €30-P.24 503
(i992) (hereinafter, Jefferal, thie court, in describing "dunctus officio, ©
stated.
hen an award has been made, the authority of the arbitrator
comes to an end. He becomes functus officio. Under general
principles of arbitration law(,] he cannot in any way change
or explain his award unlese his authority ie reinstated in
writing by all parties, or the matter is returned to him by
the apsropriate court.
Ad, at 207, 830 P.24 at 507 (format altered) (citation onitted)
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eee
im the meantime, UPW filed a motion with the circuit
court to modify or correct the original award, pursuant to HRS
§5 658A-20 or -24(a) (1), oF, in the alternative, HRS § 658-10
(hereinafter, UPW's motion to modify] on March 29, 2004.
specifically, UPW requested that the circuit court remand the
matter to the arbitrator for a determination as to whether a
correction of the original award was warranted based upon an
alleged evident mathematical miscalculation. on April 8, 2004,
pawson moved the circuit court to confirm the original award
Ihereinafter, Dawson's motion to confirm], pursuant to HRS
§ 658-8 (1983). In addition, Dawson filed its menorandum in
opposition to UPi’s motion to modify on May 12, 2004, reiterating
its position that: (1) HRS chapter 658 was applicable, thereby
rendering a remand to the arbitrator inappropriate; and (2) there
was no “evident miscalculation of figures” in the original award.
noth motions were scheduled for hearing on May 19,
2004, Prior to commencing the hearing, the circuit court held a
chambers conference and asked Dawson whether it was willing to
agree to UPW's request to have the arbitrator decide UPW's motion
0 RS § €58-8 provides in pertinent part
‘At any tine within one year after the avard is made and
Derved, any party to the arbitration may apply to the
Circuit court specified in the agreement, or if none is
Specified, to the circuit court of the judicial circuit in
Ghicn the arbitration was had, for an order confirming the
Gerd. Thereupen[,] the court shall grant such an ord
Gniesa che award 42 vacated, modified, or corrected,
preseribed in sections 658-9 and 658-10.
on August 21, 2004, Dexson withdrew its motion to confirm the original award.
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to modify, Dawson cbjected on grounds that (1) the original
award was not ambiguous on its face and (2) the arbitrator had no
jurisdiction to decide a motion under HRS § 658-10 because UPW's
motion must be decided by the court. The circuit court,
therefore, proceeded with the hearing on UPW’s motion to modify
and Dawson's motion to confirm.
ring, UPW argued that
During the h
[rIhere’e no question [that] in September 20031] the
old [arbitration law) applied to these proceedings because
the proceedings arise out of a contract that contained an
arbitration provision that predates the effective date of
the statute, the new arbitration [law], So no questicn
(ehat,] absent an agreenent to the concrary(,] the ola
[arbitration law] applies.
‘But circumstances changed in January 2008. January
2004.1. Dawson ‘signed a record, a written agreement to
Participate in binding arbitration in which they agreed to
the Dem rules{,] including Rule 31 which eaye the arbitrator
ccan modify and’ correct an arbitration award under the new
statute's delineated provisions. Sot agree, yee, at one
Tine there vas no agreenent, but then the parties changed
their position and there waa an agreement.
UPW also asserted that the original award resulted in a double
recovery for Dawson.
Dawson argued that the old arbitration law applied and
pointed to the arbitrator's refusal to consider UPW's March 22,
2004 request for correction unless ordered by the court as
evincing the fact that the arbitrator also believed that the old
arbitration law applied. Dawson also maintained that there was
no mistake in the original award, arguing that:
[We're not talking about an evident miscalculation. We're
talking about a substantive issue that thie court ought not
desl with when we're talking about an arbitrator's sward
The fact is they are in fact challenging those findings of
fact and basically complaining that Daweon should not
recover danages because the factual findings are wrong
nie
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Ae the conclusion of the hearing, the circuit court stated:
tive reviewed the pleadings and considered the arsunents of
aye ese ica ene authorities cited, and the initial
‘vomand’ this matter back £0
(der the substantive sesve of whether
[RE SEPitrator’e award should be confirmed.
bitrator © prpersusded by the argunent and the
author ees tited by UP that this matter be remand
Uplerater, so the court will re
Sibitrater’ for ite consideration
eaity, correct, or clarify the
on June 2, 2004, the circuit court issued ite written order,
which specifically stated:
pw's request for the [clourt to renand/resubmit UPW's
wequeetr to manlty, correct of clarity the (origina) 2]vard
rocuest te Sr igence Tr. Paul, Eeq. for his consideration and
go Arbétretes Jgneed. Further hearing on this matter 8
decision $5 2ii after the lalrbitrater hae ieaued his
Secision
on August 30, 2004, the arbitrator issued an amended
arbitration award (the anended award), apparently agreeing with
pw regarding the alleged duplicative danage award. Ae & result,
the arbitrator recalculated the avard and concluded that Paxson
reinburse UPH the anount of $189,924.00 (as opposed to his Prior
decision that allowed Dawson to retain the balance in the
reserve, plus receive an additional $25,074.00 from UPN) -
4. UPW’s Motion to Confirm and Dawson’ s Motion to Vacate
the Amended Award
on Septenber 2, 2004, UPN filed with the circuit court
a motion for an order confirming the amended award (hereinafter
p's motion to confirm), pursuant to HRS § 658A-22, oF,
alternatively, HRS § 658-8. Thereafter, on Septenber 9, 2004,
pawson moved in the cixcuit court to vacate, modify, correct OF
clarify the amended award (hereinafter, Dawson's motion to
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a
vacate], pursuant to HRS §§ 658A-23 (Supp. 2005),"* -20(4) (2)
through (3), and -24(a) (1), or, alternatively, HRS §§ 658-9
(2993), quoted infra, and -10 (1993). specifically, Dawson
argued, inter alia, that: (1) under HRS chapter 658, the circuit
court had no authority to remand the matter to the arbitrator and
that the arbitrator exceeded hie authority by reopening the
hearing; (2) it was error to impose a duty to mitigate; and (3)
the arbitrator committed a miscalculation in revising the
original avard.
MARS § 6584-23 provides in relevant part:
Vacating award. (a) Upon motion to the court by «
party to an arbitration proceeding, the court shall vacate
an award sade in the arbitration proceeding if
(1)"The award wae procured by corruption, fraud, or
ether undue means;
(2) There wane
(a) " Evident partiality by an arbitrator
appointed as a neutral arbitrater,
(®) Corruption by an arbitrator; or
(©) misconduct by an arbitrator prejudicing
the Fights of a party to the arbitration
proceeding;
(3) An arbitrator refused to pos
lupon showing of sufficient cal
postponement, refused to consider evidence
Materiel to the controversy, or otherwise
Conducted the hearing contrary to section 658A:
15, #0 as to prejudice substantially the rights
ofa party to the arbitration proceeding;
(4) An arbitrator exceeded the arbitrator’ e powers;
(5) There was no agreement to arbitrate, unless the
person participated in the arbitration
Proceeding without raising the objection under
Section 6584-15 (c) not later than the beginning
of the arbitration hearing; oF
(6) The arbitration wae conducted without proper
notice of the initiation of an arbitration as
required in section 656A-9 so a2 to prejudice
jubetantially the rights of a party £0 the
arbitration proceeding.
pone the hearing
‘gor
(old emphasis in original.)
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That same day, September 9, 2004, Dawson filed a
separate motion in the arbitration proceedings, requesting the
arbitrator to modify, correct, or clarify the anended award
(hereinafter, Dawson's motion to modify]. The parties
subsequently entered into discussions regarding a stipulation to
the arbitrator's jurisdiction to review Dawson's motion to
modify, Ina letter to UPW's counsel, dated October 15, 2004,
Dawson's counsel wrote:
Xam enclosing a signed copy of the {stipulation in
the format approved by you and sent over yesterday for my,
Signature. "Ab confirmed on a couple of occasions by the
[alrbitrator, a1] proceedings prior to this date were
conducted by'the {alrbitrator pursuant to HRS [c)hapter 658.
That's why he se requiring s etipulation by the parties to
allow the current motion(, i.g., Dawson's notion to modify,]
fo be reviewed by him pursuant to HRS [c]hapter 658A.
althoush vou have not_sareed to include express mutual non
waiver languace in the (eltiowlation. if ie abilL-our
el inten 2
Etinulation only be applied prospectively. Our clienti ial
hot waiving oF releasing env claims defenses ar positions’
with tespect to prior proceedings sid decisions.
(Emphasis added.) On October 18, 2004, the parties stipulated
that the arbitrator shall have jurisdiction, pursuant to DPRAR
Rule 31 and HRS §§ 656A-20(a) (1) through (3), to consider and
decide Dawson's motion to modify. After briefing and a hearing,
motion to modify via his written
the arbitrator denied Dawson
order filed in the arbitration proceedings on November 8, 2004.
on November 9, 2004, Dawson filed a memorandum in
opposition to UPW’s motion to confirm, wherein Dawson reiterated
that
{clorrecting or modifying the amount of the avard by the
(s]ebitrator is not peraitted. (UJader Hewes law
governing chapter 658 arbitrations, the (clourt cannot,
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delegate ite statutory authority to correct or modify a
SSnetary award to an [alrbitrator, nor does the [al rbitrator
have the jurisdiction to reopen the arbitration and hold a
Rearing on @ motion filed under HRS § 658-10.
Daweon further argued that
‘2 finding that the original (avard) was ‘patently ambiguous
tunljg a condition precedent to the (circuit clourt’s
apiaity'to remand to an arbitrator for “clarification.*
-V"adtustment Co.,) 72 Haw. (41, 44-46, 605
Fred dds, 4se-47 (4991/1. Therefore, the June 2, 2008 Order
Feversing and modifying the original (award) from a judgment
in favor of the winter, (Dawson), to a judgment in favor of
the loser, UP, waa clearly a situation where the remand
Fron the (clout was dnvalid and the (a]ybitrator alee
Gxcweded hia power and lavéul Jurisdiction. Moreover, thes
wae no finding of ambiguity in the original avard as a basis
for remand, ee Jeffers, (aunral
Lastly, Daweon asserted that the arbitrator erred in (1) treating
mitigation of damages as an affirmative claim, as opposed to an
affirmative defense and (2) disregarding the law of contract
damages, which prevents a breaching party from recovering damage:
againet a non-breaching party.
on the same day, November 9, 2004, UPW filed its
memorandum in oppoaition to Dawson's motion to vacate. UPW
argued that no ground to vacate the amended award existed
Anasmuch ae "Dawson's motion does not allege any fraud, evident
partiality, corruption, misconduct, or misbehavior by the
[alrbitrator, or that the [alrbitrator exceeded his powers, did
not allow evidence, or give proper notice of the proceedings,” as
required under BRS § 658A-23 and HRS § 658-9. Thereafter, UPW
also filed ite memorandum in support of its motion to confirm,
contending, inter alia, that:
[2.1 Davaon's menorandus in support of ite motion te
vacate, filed Rovenber 9, 2004, for the first time alles
Btatutory grounds fer vacating the (amended) avard. Dawson
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epecifically cites to HRS § 658-9(a) (4) vaxbstrators
specifically oitfowers’ and argues, for the first time on
exceeding tobe that [ene arbitrator] excesded Bis powers
Noverber eccing the original avard[,) A motion under HRS
PME SGTES Vacate must Be Drought within 20 daye efter the
§ 656-9 So MGcred. gaa HRS § 658-11. Dawson's motion to
guard 40 red apen HRE'E €50-9(a) (4) is, therefore, too late
2) Bowsen ie judicially estopped [érom)
rmaklind] th {e above] argunent After having soved in the
mak ling) ch Seocecdinge pursuant to [DPRAR] Rule 31 to
Ged) gward, and after the [a]rbitrator then
ree ed bawson's motion, Dawson cannot be
es dered sot Gn that the, [a)zbicrator lacks the power to
hoard to covaccide whether to correct his avard.
eee eee Teyourt, by virtue of (the June 2, 2008
order} ‘iteady determined that [the arbitrator] aid have
Sate se ioe tnd power to consider UPN s wotion to correct
JBEseatcrnel award, That (older is law of the ct
ie ere Shoang reject Dewaon's efforts to have thle clourt
AGURShay reconsider che prior [olrder
wotwithetanding the above, UPW also contended that the arbitrator
aia not exceed his authority because, under DPRAR Rule 31, the
arbitrator is permitted to correct an evident mathematical
miecalculation in the award and that the circuit court
specifically remanded the matter to the arbitrator for
determination. UPW further maintained that the arbitrator’ s
correction of the original avard did not constitute a reopening
of the arbitration proceedings.
‘A hearing was held on the parties’ motions on November
17, 2004, tn ite written order, issued on January 6, 2005, the
cizcuie court granted UPW's motion to confirm and denied Dawson’ s
motion to vacate, concluding that *[tJhe previous (j]udge had
already issued a rulingl,) renanding this matter to the
[alebitrator to correct or modify the avard. There being no
cogent reasons to overturn the previous [Judge's ruling, thie
[clourt finds that the [a]zbitrator did not exceed his scope of
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authority.” On the same day, the circuit court entered judgment
in favor of UPW and against Dawson in the amount of $189,924.00.
On February 7, 2005, Dawson timely filed its notice of appeal.
m. s7 1S 01
A. Arbitration
Te is well established that this court has “confined
judicial review of arbitration avarde to the strictest
possible limiea.” Mas ru Tropical
Eaters. 511Haw. 332, 395, 460 Pad 317, S19 (ise) This
ia Pecause "of the legielative policy encouraging
arbitration end thereby discouraging litigation.” Gada v.
Halley, €6 Wav, 431, 441, 667 P.24 251, 288 (2963) (ereing
Mare Contructorg, $1°Haw.\ac 336, 460'Pead at 319) |
82 hawai's 57,
See alag.
65, $19 P.ad 969, 981 (1996). Thus, “review of arbitration
ds by the citcuit and appellate courte is limited by the
Provisions of the arbitration statute
51 law. at 335, 460 P.2g at 219." See Kalast
90 Wawas't 167, 293, 997 F.2d 17e, 102
Hawai ine co.
(2990); Weffers). 73 Haw. (at]’ 204, 630 F.2d [at] s07l.)
Gepava v. State Farm Mut. Auto. Ing. Co., 94 Hawai'i 362, 365, 14
P.3d 1043, 1046 (2000) (internal brackets and ellipsis omitted).
Further, *[wle review the circuit court's ruling on an
arbitration award de novo, but we also are mindful that the
circuit court’s review of arbitral awards must be extrenely
narrow and exceedingly deferential. et 1 99
Hawai'i 226, 233, 54 P.34 397, 404 (2002) (internal brackets,
quotation marks, and citations omitted).
B 1 eta
“The standard of review for statutory construction is
well-settled. The interpretation of a statute is a question of
Jaw which this court reviews de nove." Liberty Mut, Pire Ine.
So, wv. Dennison, 108 Hawai‘i 380, 384, 120 P.3d 1115, 2119 (2008)
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(quoting Labrador v, Liberty Mut, Group, 103 Hawai'i 206, 211, 61
P.3d 386, 391 (2003)) (internal quotation marks omitted).
111, DISCUSSION
fon appeal, Dawson specifically argues that the circuit
court erred in remanding UPH'# notion to modify because: (1) the
court did not have the authority to delegate to the arbitrator
the decision regarding UPW's motion to modify under HRS § 658-10;
(2) the court did not make the requisite factual finding that the
original avard wae patently ambiguous prior to ite renand to the
arbitrator; and (3) the basis for modification did not meet the
definition of ‘evident miscalculation of figures" contained in
HRS § 658-10(1), quoted infra. Dawson further contends that the
circuit court erred in (1) not finding that the arbitrator
exceeded his jurisdiction under Hawaii's judicially created
exception to the functus officio doctrine, (2) concluding that
there were no cogent reasons to overturn the previous decision to
renand UPH's motion to modify, and (3) not vacating the amended
award where the arbitrator exceeded hie powers and acted in
manifest disregard of the law and in violation of public policy
by (a) treating mitigation of danages as an affirmative claim, as
opposed to an affirmative defense, and (b) manifestly
@isregarding the law of contract damages, which prevents a
breaching party fron recovering damages against a party who was
not in breach and who waa not otherwise found liable for damages
on any affirmative claims. Inasmuch as Dawson’s contentions are
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premised on ite belief that HRS chapter 658 -- and not HRS
+ we must first decide
chapter 658A -- applies to the instant c
whether the old or new arbitration law govern the instant case.
A. The Applicability of HRS Chapter 658 Versus HRS
Chapter 6588
1. The Enactment of Chapter 656A
In 2001, HRS chapter 658 was replaced by a modified
version of the Uniform Arbitration Act. 2001 Haw. Seas. L. Act
265, 5§ 5, @ at 620. As originally promulgated, HRS § 6S6A-3
(Supp. 2001) specifically provided that:
When chapter applies. (a) Except
jubsection (ec), this chapter governs an agr’
Gebitrace made on or after duly 1, 2002
{b) This chapter governs an’ agreenent to arbitrate
made before July 1, 2002, if all the parties to the
Soreenent or to the arbitration proceeding so agree ins
record
ic) after gune 30, 2004, thie chapter governs an
agreement to arbitrate vhenever made
the legislature amended
(Bold emphasis in original.) In 2002,
HRS § 658A-3 by adding an additional gentence to subsection 3(b),
which provides that:
If the parties to the agreesent or to the arbitration do not
co agree ins record, an ssreenent to arbitrate that is made
before Juiy 1, 2002, hall be governed by the law specified
in the agreement to'arbitrate or, if none is specified, by
the state lav in effect on the date ven the arbitration
began or cn June 30, 2002, whichever first occurred.
2002 Haw. Sess. L. Act. 50, § 1 at 186. In amending
subsection 3(b), the legislature specifically stated that:
‘the purpose of this measure is to clarify the
applicability of the State's Revised Uniform Arbitration
Ret, codified last year as chapter éSBA(.1
Your ccmmittes finds that the measure addresses an
caisson in the Revised Uniform Arbitration Act which
governs arbitration agreenenta made prior to the effective
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date of chapter 658A, MRS, Af agreed to by the parties to
the agreenant or to the arbitration procesding. However,
the Revived Uniform Arbitration Act ie silent as to waich
Law governs if the parties do nct agree, This measure will
enable the use of the provision in the previous arbitration
aw, which has Since been repealed, when warranted.
Sen. Stand. Comm, Rep. No. 3169, in 2002 Senate Journal, at 1511;
see also Sen. Stand. Comm. Rep. No. 2850, in 2002 Senate Journal,
at 1378-79; Hse. Stand Comm. Rep. No. 260, in 2002 House Journal,
at 1331." Accordingly, the current version of HRS § 658A-3
(Supp. 2005) provides in its entirety:
hen chapter applies. (a) Except as provided in
subsection (c), thie chapter governs an agreement to
arbitrate made on or after July 1, 2003.
(b) Thie chapter governs an’ agreement to arbitrate
nade before July 1, 2002, if all the parties to the
agreenent or to the arbitration proceeding so agree in a
Tecord. If the parties to the agreement or to the
arbitration do net 0 agree in a record, an agreement to
srbitrate that is nade before July 1, 2002, shall be
Governed by the lav specified in the agreement to arbitrate
er, if none ie specifies, by the state law in effect on the
Sate when the arbitration began oF on June 30, 2002, °
whichever fire occurred.
(c} After June 30, 2004, thie chapter governe an
agreement to arbitrate whenever made.
(Bold emphasis in original.)
We have repeatedly announced that:
Im construing statutes, a court’ primary objective ie to
ascertain and give effect to the intention of the
legislature ae gleaned primarily from the language contained
in the statute itself. Accordingly, it is well settled that
this court is bound by the plain, clear(,]. and unabiguoue
language of a statute[,] unless the literal construction
would proguce an absurd and unjust result, and would be
Clearly inconsistent with the purposes and policies of the
CARL Corp, v. State of Hawai'i, Dep't of Educ., 85 Hawai'i 432,
459, 946 P.2d 1, 29 (1997) (internal quotation marks, ellipses,
\ specifically, the amendnent to HRS § 650A-3 was considered by the
committees of Judiciary and Hawaiian Affairs, Judiciary, and Labor.
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original brackets, and citations omitted) (format altered)
Furthermore, *we aust read statutory language in the context of
the entire statute and construe it in a manner consistent with
ite purpose." Courbat v. Dahana Ranch, Inc., 111 Hawai‘i 254,
260, 141 P.3d 427, 433 (2006) (citations omitted). Bearing the
foregoing principles in mind, we now examine the language of HRS
5 656A-3 ae it applies to the instant case
2, The Application of HRS § 656A-3(a) to the Instant
case
Subsection 3(a) clearly directs that, “except as
Anfxa, the new
chapter "governs an agreement to arbitrate made on or after Jy
provided in subsection (c)," gee section III.A.
1.2002." HRS § 650A-3(a) (emphasis added). Here, it ia
undisputed that (1) UPW and Dawson entered into the Plan
Agreement, which contained the dispute resolution provisions, on
February 24, 2000, prior to the enactment of HRS chapter 658A and
(2) UPW and Dawson executed the DPR Arbitration Agreement on
August 23, 2003 and January 30, 2008, respectively, which
agreenent explicitly provides that “(t]he parties, DPR, and Janes
Paul, Beg. agree to follow and abide by the DPR Arbitration
Rules(.]” Further, the parties do not dispute that, prior to
Dawson's signing of the DPR Arbitration Agreenent on January 30,
2004, they conducted discovery under the old arbitration law.**
rbitrator, dated september 8, 2003,
‘UPW cenceded that "the of@ arbitration
(continued...)
Mtn URWe letter to th
concerning certain divcovery 4
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on appeal, Dawson maintains that HRS chapter 658 is
applicable inasmuch as the Plan Agreement was entered into prior
to the enactment of HRS chapter 656A. Specifically, Dawson
argues that the DPR Arbitration Agreement does not contain
language that expressly alters the statutory jurisdiction that
the parties have followed since the counencement of the
arbitration proceeding and throughout the discovery period.
Dawson maintains tha
when it signed [the DPR Arbitration Agreenent,] to pay
[Dawson] had no intention of changing the statutory
juriediction of the [alrbitrator or abandoning the version
Of the DPRIAR] that the parties and the arbitrator were
following up until that tine. Woreover, the statenente made
by UP\'s counsel after UPW signed the DPR form acknowledge
that the proceedings were under Chapter 650 and acknowledge
that the Saly arbitration agreenent between the parties that
fuottere de the one contained in the Plan (agreement). UP
goes eo far as co state that DPR'e agreement ie just a
Sformality= to provide ‘additional provectione for, [the]
par related to responsibility for paying (the) DPR and the
(alzbitrater,
(Pootnote omitted.) In sum, Dawson essentially maintains that
the DPR Arbitration Agreement does not constitute a new and
enforceable arbitration agreement nor displaces or overrides the
dispute resolution provisions of the Plan Agreement.
Conversely, UPW argues that, when Dawson signed the DPR
Arbitration Agreement on January 30, 2004, it agreed to be bound
by the DPRAR, including DPRAR Rule 31. At that time, Rule 31
provided that: "Parties may apply to the Arbitrator(s) to
modify, correct or clarify an Award, pursuant to the procedures
(continued)
atatute, iis chapter 658, a8 opposed to the new arbitration statute, Chapter
658A, should seply.”
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specified in the RUAA, Section 20[, i.e., HRS § 656A-20]." HRS
5 658A-20 expressly permite the arbitrator to act on a party’s
request to make mathematical corrections or clarify an
arbitration award. Consequently, UPW contends that “Dawson!
argument that it is somehow not bound by [the DPRAR] flies in the
face of its express agreement to the contrary when signing [the
DPR Arbitration Agreenent].” UPW further contends that:
Dawson's extrinsic evidence of alleged secret undocunented
intentions of Dawson when signing the DPR [arbitration]
Agreement. (18) not supported by the record (no affidavit by
Dawson) and vere properly not considered by the circuit
court. The plain language of the (DPR) Arbitration
Agreement controls over what Dawson may have secretly
intended vhen it signed the agreement
Based upon the respective positions of the parties, the inquiry
is whether the DPR Arbitration Agreement constitutes a new valid
and enforceable agreement to arbitrate, thereby, euperseding the
Gispute resolution provisions of the Plan Agreement and
triggering the applicability of HRS chapter 658A.
Preliminarily, we recognize the well-settled principle
that
should not draw inferences from a contract regarding
the parties’ intent when the contract is definite and
unambiguous. “In fact, contractual terns should be
interpreted according to their plain, ordinary seaning and
accepted use in comen speech. “The Court should look ‘no
farther than the four comers of the document to determine
whether an ambiguity existe.
State Farm Fire & Cas = 2, 90 Hawai'i
315, 324, 978 P.2d 753, 762 (1999) (citations omitted). Where a
writing is found to be clear and unambiguous and “represents the
final and complete agreement of the parties," the parol evidence
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a
rule bare evidence “of prior contemporaneous negotiations and
agreements that vary or alter the terms of a written instrument."
du (citation omitted). ‘Thus, "[o]nce the parties execute an
Jnstrument which contains their whole agreesent, their previous
negotiations and agreenents are legally ineffective and evidence
relating to those previous negotiations or agreements is
irrelevant regardless of who offers it.* Akamine @ Sons. Ltd. v.
‘Am._Sec, Bank, 50 Haw. 204, 310, 440 P.2d 262, 266 (1968).
However, it is equally well-settled that, because the
parol evidence rule presupposes a valid agreement, it will not
prohibit evidence showing that there was no agreement or no
enforceable agreement. See B. Allan Farnsworth, Contracts
$5 7.3-7-4, at 239-47 (3d ed. 2004) ;"" gee algo 11 Williston on
Contracts, § 33:17 at 632-40 (4th ed. 1999); Restatement (Second)
of Contracts § 210, emt. b (1981) ("[A] writing cannot of itself
provide ite own completeness, and wide latitude must be allowed
for inquizy into circumstances bearing on the intention of the
section 7-4 provides in relevant part:
If the
a lnteer writtes
Jesotiations, it fellowe that the rule does not come into
Deg Gatil the existence of an enforceable written agreement
Rit‘becn shown. Bvidence of the negotiations between the
Rafeies chould therefore be admissible to show that no
parbenent waa reached of that the agreenent reached vas
SGalla, The parol evidence rule doee not speak to these
questicas.
‘agreenent has
Jd $7.4, at 40 (footnotes omitted) ; soe alee ide § 7-2, st 239 (1(8) ince
Ta; S2oSjenmee a valid written agreenent, it does not exclude evidence to
the tnae there wae no agreement or that the agreenent van invalid.*
{rootnote omitted.)).
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parties."). In other words, the parol evidence rule “only
applies to enforceable contracts and thus extrinsic evidence
should be considered in assessing defenses to contract
formation.* Boskoff v. Yano, 217 F. Supp. 2 1077, 1086 (D. Haw.
2001) (citation omitted); see also State Farm Fire & Cas. Co., 90
Hawai'i at 324, 978 P.2d at 762 ("absent fraud, duress, mistake
or ambiguity, extrinsic evidence is excluded once it is
determined that a contract ie fully integrated") (citations
on, Iné jescher, 105
omitted) (emphasis added!
F.3d 1278, 1260 (9th Cir. 1997) (the rule ‘only applies when the
court is interpreting a contract that is enforceable") (citation
omitted)
Intrinsic to finding the existence of an agreement is
wit is an elementary rule
finding the intention of the partie
of contract law that there must be a meeting of the minds on all
essential elements or terms in order to create a binding
contract {.J* Mose v. Am, Int’] Adjustment Co., 66 Hawai'i 59,
63, 947 P.2d 371, 375 (1997) (citation, internal quotation marks,
and original brackets omitted) (holding that the parties failed
to enter into a binding arbitration agreement because there was
no meeting of the minds); see algo $. Foods Group, L.P. v, state
of Hawai'i, Dep't of Educ., 89 Hawai'i 443, 457, 974 P.2d 1033,
1047 (2999) (*[CJontracting is a sentient process. There must be
objective proof of a meeting of the minds. The prospective
contracting parties are not expected to engage in telepathy.
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‘There must be a confluence of assent around specific term
(citation omitted.)).
‘The existence of mitual assent or intent to accept se
determined by an sbjective standard. A parey'e worde oF
tote are judged under a standard of resscnabieneae in
Setermining whether he has manifested an objective intention
to agree, All reasonable neanings will be imputed ae
representative of a party's corresponding objective
intention. Unexpressed intentions are mugstory when the
problen is to ascertain the legal relations, if any, between
two parties.
Earl M. Jorgensen Co, v. Mark Constr... Inc., 56 Haw. 466, 470-71,
540 P.2d 978, $82 (1975) (citations omitted). It follows then
that, “[a]n arbitration agreement, like any contract, must be
construed to give effect to the intention of the parties.”
Wayland Lum Constr., Inc, v, Kaneshige, 90 Hawai'i 417, 422, 978
P.2d 855, 860 (1999) (citation omitted).
In our view, the record on appeal in the instant case
evinces that there was no "meeting of the minds" between the
parties to create a new binding contract to arbitrate that would
replace or supersede the dispute resolution provisions contained
im the Plan Agreement. UPW, in a letter dated January 27, 2004
to the DPR regarding Dawson's failure to make the $6,000.00
initial deposit for the arbitration proceedings, expressly
maintained that:
‘eto Dawson’s failure to sisn the Agreement £0
Porticivate in bindine Arbitration, we respectfully assert
‘Shat_Daxaonia signature in but a mere formality and is not
a 2. SSaweon originally
initiated thie arbitration back in 2001, and, thereafter,
has since participated by selecting the arbitrator,
Subsitting 2 statement of Claim, submitting an Anaver to
UPW'a Statesent of the Case, exchanging documenta responsive
to discovery requests, and appearing/arguing in several
‘scheduling and discovery telephone conferences with
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Arbitrator Jin Paul. wweon_alzel
gisned the underlying contract at issue in this matter which
included ‘bavscn’s agreement to -teaolve-amy contract disputes
‘ihe br Arbitration Agreement| nexely provides additional
protection for Dik'e and the srbitrator's fees, but is now
‘puneceusary because UP is willing to advance all of these
fess.
(emphases added.) Thereafter, on January 30, 2004, Dawson signed
the DPR Arbitration Agreement.
under these cizcunstances, it cannot reasonably be said
that Dawson “manifested an objective intention to agree,” Earl M.
Jorcensen Co., 56 Haw. at 470, 540 P.2d at 962, that the DPR
arbitration Agreenent constituted a new agreement to arbitrate.
‘See Restatement (Second) of Contracts § 20 ("There is no
manifestation of mutual assent to an exchange if the parties
attach materially different meanings to their manifestations and
(a) neither party knows or has reason to know the meaning
attached by the other; or (b) each party knows or each party has
reason to know the meaning attached by the other."). Moreover,
uPi's statements in its January 27, 2004 letter that (1) "Dawson
already signed the underlying contract,” (2) the ‘arbitration
provision [in that contract] was the basis for initiating these
arbitration proceedings with DPR,” and (3) ‘Dawson is already
bound by an arbitration agreement” demonstrate that UPW, itself,
id not coneider the DPR Arbitration Agreement as a new agreement
to arbitrate that would displace the dispute resolution
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provisions of “the underlying contract,” i.e., the Plan
Agreement
Rather, we believe the DPR Arbitration Agreement
complied with section 5.03 of the Plan Agreement. As previously
quoted, section 5.03 sets forth the parties’ agreement to
arbitrate any dieputes and also provides that "the parties shall
select an Arbitrator by mutual agreement." The DPR Arbitration
Agreement clearly evinces the parties’ mutual assent to (1) James
Paul, Eeq. as their arbitrator, (2) the scope of the arbitrator's
authority in determining the dispute, and (3) the arbitrator’s
compensation and expenses. In other words, the DPR Arbitration
Agreement merely menorializes, in writing, the parties “mutual
agreement” regarding the selection of an arbitrator, as required
by section 5.03 of the Plan Agreement. Indeed, as UPW’s letter
of January 27, 2004 indicates, “Dawson is alxeady bound by an
arbitration agreement [(i.e., section 5.03 of the Plan
Agreenent),]* and, therefore, the post-July 1, 2002 DPR
Arbitration Agreement is not a "new" arbitration agreement that
would dictate the application of HRS chapter 658A to the
arbitration proceedings. Accordingly, inasmuch as the Plan
Agreenent was executed on February 24, 2000, HRS § 658A-3(a) i
inapplicable to the instant case. See algo section IIT.A.
Angxa.
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3. The Application of HRS § 656A-3(b) to the Instant Case
‘The fact that the Plan Agreement was executed prior to
July 1, 2002, however, does not necessarily foreclose the
application of the new arbitration law -- HRS chapter 658A -- to
the instant case under HRS § 658A-3(b), quoted supra. Based on
the first sentence of subsection 3(b), the new chapter may govern
an arbitration agreenent made before July 1, 2002, as long as the
parties to the agreenent or the proceedings “so agree ina
ecord.* HRS § 658A-3(b) (emphasis added). If the parties
cannot agree, the second sentence of subsection 3(b) states that
the law specified in the agreement shall govern; but, if no
governing law is specified in the agreement, the arbitration
shall be governed by the law in effect “on the date when the
arbitration becan or on June 20, 2002, whichever occurred fixet.”
HRS § 658A-3(b) (emphases added) .
As previously stated, UPW maintains that, by signing
the DPR Arbitration Agreement, Dawson agreed to be bound by the
DPRAR, which references HRS chapter 658A and that, therefore, the
the “record” for purposes of
DPR Arbitration Agreenent i
subsection 3(b). However, notwithstanding the fact that the
parties agreed to "follow and abide" by the DPRAR, the DPR
Arbitration Agreement does specifically reference which version
of the DPRAR would be followed, i.e., those promulgated during
the time when HRS chapter 658 was effective or those promulgated
after the effective date of HRS chapter 658A, We, therefore,
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a
veject UPw'e argument that the DPR Arbitration Agreement ie the
srecord* evincing the parties’ agreement that the new arbitration
law would apply to the arbitration proceeding,
In the absence of an agreement by the parties “in a
record” to the application of ERS chapter 658A, the second
sentence of subsection 3(b) mandates the governing law to be that
which is "specified in the aax: to arbitrate or, if none is
specified, by the state law in effect on the date when the
arbitration began or on June 20, 2002, whichever first occurred."
RS § 658A-3(b) (emphases added). As previously discussed, the
DPR Arbitxation Agreement is not a new agreement to arbitrate;
thus, the Plan Agreement entered into on February 24, 2000
controls, ‘The dispute resolution provisions of the Plan
Agreement, however, do not specify or make reference to the law
that would govern an arbitration proceeding pursuant to the Plan
Agreement. ‘Thus, we look to the alternative enunciated in the
cond sentence of subsection 3(b), i.e., the date when the
arbitration began. The arbitration proceeding in the instant
case commenced on February 18, 2004 -- after June 30, 2002.
consequently, pursuant to the plain reading of the alternative
stated in the second sentence of HRS § 658A-3(b), the governing
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SSS
law ie that which was in effect on June 30, 2002, i.e., HRS
chapter 658
‘The Application of HRS § 658A-3(c) to the Instant
case
As previously stated, HRS § 658A-3(a) provides that the
new arbitration law applies to all agreements entered into after
Duly 1, 2002 “except as provided in subsection (c)." Subsection
3(c) provides that, after June 30, 2004, the new arbitration law
"governs an agreement to arbitration whenever made." HRS § 6S8A-
3(c) (emphasis added). In other words, a plain reading of
subsection 3(c) indicates that, after June 30, 2004, HRS chapter
658A applies whether an arbitration agreement was made before or
after July 1, 2002. However, being mindful that ‘we must read
statutory language in the context of the entire statute
Gourbat, 111 Hawai'i at 260, 141 P.3d at 433, we mist examine the
apparent conflict between HRS §§ 65@A-3(b) and -3(c).
Under subsection 3(c), after June 30, 2004, the new
arbitration law would apply regardless whether an arbitration
Proceeding may be ongoing. In other words, in cases where a pre-
July 1, 2002 arbitration agreement did not specify the governing
Jaw and the arbitration began at any time between July 1, 2002
and June 30, 2004, the second sentence of subsection 3(b)
Moreover, by signing the DPR Arbitration Agresnent, Dawson agreed to
“follow and abide" by the DPRAR. However, as previously discussed, the DPR
arbitration Agreenent does not opacity which version of the DPRAR would be
‘applicable. Consequently, the aiternative enunciated in the second sentence
Of subsection 3(b) ie triggered
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controls, that is, the old arbitration law would apply because
une 30, 2002 occurred first; but, if the proceeding is not
completed by June 30, 2004, the new arbitration law is triggered
on July 1, 2008, However, inasmuch as “a rational, sensible, and
practicable interpretation of a statute is preferred to one which
ip unreasonable or impracticable,” Kinkaid v. Bd, of Review of
city & County of Honolulu, 106 Hawai'i 318, 323, 104 P.3d 905,
920 (2004) (internal quotation marks, brackets, and citation
omitted), we presume that the legislature would not have intended
the absurd result of having parties to an arbitration be
subjected to a change of rules while in the midst of an ongoing
arbitration proceeding. Sea id, (stating that "the legislature
must be presuned not to intend an absurd result, such that
legislation will be construed to avoid, if possible,
inconsistency, contradiction, and illogicality” (internal
quotation marks, brackets, and citation onitted)). Changing the
rules mid-stream could impact prior rulings made by the
arbitrator under a different scheme, cause confusion, create
delays, and increase the expenses of the parties. Such a result
would be inconsistent with the general proposition that “parties
resort to arbitration to settle disputes more expeditiously and
inexpensively than by a court action(.]" Daiichi Hawai'i Real
e Corp. v. Lichter, 103 Hawai'i 325, 339, 82 P.3d 411, 425
(2003) (citation omitted). Indeed, it would also be inconsistent
with the purposes of the Uniform Arbitration Act. See Sen.
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Stand. comm. Rep. No. 1467, in 2002 Senate Journal, at 1514
("Your Committee finds that arbitration is a desirable
alternative to litigation. Your Committee believes that this
bill will facilitate arbitration as an effective means of
resolving contractual disputes without the need for litigation by
3 Sen. Stand. Comm.
augmenting procedures to meet modern needs.
Rep. No. 1248, in 2002 Senate Journal, at 1420 (Your Committee
finds that arbitration has becone a more viable alternative to
Litigation Thus, in our view, “the rationale, sensible, and
practicable interpretation” of HRS § 658A-3(c) is that it does
not apply to an ongoing arbitration proceeding, but to
arbitration proceedings commenced after June 20, 2004. stated
Gifferently, under subsection 3(c), arbitration proceedings
commenced after June 30, 2004 are governed by the new arbitration
made.
law regardless of when the arbitration agreement wai
Accordingly, inasmuch as the arbitration proceeding in this cas
commenced prior to June 30, 2004, HRS § 658A-3(c) is inapplicable
to the instant case. Consequently, we hold that, under the
circumstances of this case and the plain language of HRS
§ 658A-3(b), the governing law applicable to the arbitration
proceeding in this case is HRS chapter 658.”
% The disent concludes that the DPR Arbitration Agreement i (1) an
agreement to arbitrate made after July 1, 2002 under HRS § e46h-3(a) and (2) a
"record" chat dictates the application of HRS chapter ¢S@A pureuant. to HRS
4 G58A-3(b). According to the dissent, *(rlegardless of what Dawecn’s
subjective intent or UPA’s may have becn prior to the execution, once the DPR
Arbitration Agreement wae signed... by UPW and Davacn ‘there plainiy
(continved..")
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We now turn to the dispositive issue on appeal --
whether the circuit court’s remand to the arbitrator was proper
under Chapter 658.7
8. continued)
was a necting of the minds manifested by the instrument. The DPR Arbitration
Agreenent constituted an express manifestation of the parties’ “agreement, to)
arbitrate’ under its terms." (Citetion omitted.) (gnphasie in original.)
We, however, cannot agree with the diseent’s contention. To conclude, aa the
Gigsent does, that the parties’ mere execution of the DPR Arbitration
Agreement created a New and Valid agreement to arbitrate would viclete the
"elementary rule of contract lev that, in order to creste » binding
agreenent,| there must be a meeting of the minds" as to the essential terms
Moss, "86 Hawai'i at 63, 947 P24 at 375 (citation and internal quotation marks
omitted). “Ae previously discussed, there vas no meeting of the minds between
Dawson aiid UPW vith respect to the essential term that the DPR Arbitration
Agreement constituted a new agreement to arbitrate. The critical question, in
this case, in whether the SOR Arbitration Agreement constitutes a new valid
and enforceable agreement to arbitrate, thereby superseding the dispute
Fesolution provisions in the Plan Agreenent, and triggering the application of
HRS chapter 6S€A. In answering the critical question, courts are permitted,
fas discussed gupta, to resort to extrinsic evidence, £.g., the January 27,
Bova letter, which clearly denonotrater that the pactice did not ineend ¢o
Greate a new agreenent to arbitrate
* UPW asserts that Davscn should have appealed the circuit court's
June 2, 2008 renand order within thirty days because euch order vas analogous
to an order compelling arbitration on the evident mathematical miscalculation
iseue and that, therefore, Dawson's challenge on appeal ie untimely. However,
Pw does not provide any authority for the propoeition that the remand to ene
arbitrator for recalculation of damages is an appesiable order similar to an
Order to coapel arbitration. We note that HRS s 6Se-12 (1993) provides that:
Upon the granting of an order, confirming, modifying,
oF correcting an award, the same shall be filed in the
office of the clerk of the circuit court and thie shall
Constitute the entry of judgment. Ana =
‘xen such iudament as hereinafter set forth.
(Bephasis added.) HRS § 658-15 (2993) indicates that:
Unless the agreement for avard provides that no appeal may
be taken{,] an appeal may be taken from an order vacating an
auard, or from 9 judgnent entered nen an award ag trons
‘grdex “ox Tudamsnt in an action, otherwise no appeal nay be
bad
(imphasis added.) Moreover, this court hae previously held that an appeal
fron a final judgnent “brings up for review all interlocutory erdere net
appealable directly ae of right which deal with ieaves in the case.” ecka v.
Sivmanski, 107 Hawai 386, 396, 114 P.34 892, 902 (2008) (internal. quotation
marks and citation omitted). Here, the circuit court's final Judgment
Confirming the anended arbitration evard ‘brings up for review (ene circuit
court's renend order that was] not appealable directly as of right(.]* Jd. at
(continued. ".)
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B. The Propriety of the Circuit Court’s Remand to the
Arbitrator Under HRS Chapter 658
Initially, we note that, in remanding the matter to the
arbitrator, the circuit court specifically indicated it was
persuaded by the argument and the authorities cited by UPW,"
which cited-authority included HRS § 658A-20. However, inasmuch
as we have held that HRS chapter 658A does not govern this ca:
UPW’s arguments based upon HRS chapter 658A are inapplicable. We
must, nevertheless, examine whether the circuit court’s remand
order was authorized under HRS chapter 658 and, therefore, the
ion is limited to the parties’ arguments as they
following discu
relate to HRS chapter 658 and not chapter 658A.*
35(.. continued)
396, 124 F.3d at 962 (internal quotation marke and citation omitted) ; s2e
alee falua'v, Pin sec. Ins. Cou, 69 Haw. 427, 431, 745 7.24 290, 293 (1987)
(orders denying vacation, modification of correction of ah arbitration avard,
though not themaclves appeslable under Wks chapter 58, are reviewable on
‘appeal from an order confirming the award). Consequently, UPW's untinel ines
aFgument te without merit
we note that UPW also argues that Dawson is judicially estopped from
challenging {1} the cizcuit court's authority to venand the matter to che
arbitrator and (2) the arbitrator's power to correct the original avard, based
{pon the October 18, 2004 stipulation, wherein the parties agreed to the
arbitrator's Juriediction to consider and decide Dawsons motion to modify the
Guended arbitration avard. Specifically, UPW contends that
only after bawecn moved and then stipulated that (the
arbitrator] had the power to consider Dawson's own motion to
modify] the [amended avard] and then [the arbitrator]
denied Dawson's motion, did Dawson claim that [the
arbitrator] lacked power to correct [the original] award in
the first place ‘Dawson is judicially estopped to
invoke [the arbitrator’s] power and then to claim he has no
uch power (hus, ) Dawson cannot be heard to
complain that [the arbitrator] lacks the power to consider
and decide whether to correct (the original) avard.
However, a# previously stated, Davson, in entering into the October 18, 2008
stipulation, ‘clearly reserved its right to pursue "any claims, defenses or
positions vith respect to prior proceedings and decisions." In other word
(wont inued.)
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a
Dawson argues that “[t]here is nothing in Chapter 658
_ that gives the [circuit clourt authority to delegate to the
[alrbitrator its statutory jurisdiction and authority to modify
fan award under HRS § 656-10." UPM, on the other hand, contends
that, even under the old arbitration law, the circuit court has
the power to remand the award to the arbitrator under the well-
recognized conmon law exception to functus officio, which permits
the arbitrator to review the award upon instructions from the
court
we have previously etated in the context of HRS chapter
650 that *[t]he [circuit] court cannot act except as allowed by
"Bateman Constr., Inc. v. Haitsuka Brog., 77
Hawai'i 401, 484, 889 P.2d 58, 61 (2995). In that regard, HRS
that {c]hapter
§ 658-8 mandates that the circuit courte “shall grant . . . an
order [confirming an arbitration award) unless the award is
vacated, modified, or corrected, as prescribed in sections 658-9
and 658-10." HRS § 658-8; see also Norrigon-Knudeen Co. va
Makahuena Corp., 66 Haw. 663, 672, 675 P.2d 760, 767 (2983) ("HRS
§ 656-8 contemplates a judicial confirmation of the award issued
by the arbitrator, unless the award is vacated, modified, or
corrected in accord with HRS §§ 658-9 and 658-10." (Internal
citation and quotation marks omitted.)). We have also stated
A1(.. scontinued)
the stipulation -- as Dawson's counsel pointed out -- ‘only applied
sae geiEiveiy." Thus, UPw'e judicial estoppel argunent is without merit
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that “HRS § 658-9 provides only four specific grounds upon which
an award can be vacated, while HRS § 658-10 provides only three
grounds for modifying or correcting an award.” Labrador
Liberty Mut. Group, 103 Hawai'i 206, 212, 61 P.3d 386, 392 (2003)
(footnote, citation, and internal quotation marks omitted) .
Under HRS § 658-9, the four specific grounde for vacating an
award ar
(2) Where the avard wae procured by corruption, fraud, oF
evident partiality or corruption in
the arbserstors, ar any of them,
(3) there the axbitratore were guilty of misconduct, in
refusing to postpone the hearing, upon sufficient
‘cause chown, or in refusing co hear evidence,
pertinent and naterial to the controversy; oF of any
Sther misbehavior, by which che righte of any party
have been prejudiced
(4) Where the arbitrators exceeded their povers, or 20
imperfectly executed thes, chat « mitual, final, and
Gefinite avard, upon the subject matter submitted, was
ot made.
@
grounds for modifying or
And, under HRS § 658-10, the thré
correcting an award are:
(2) Where there vas an evident mi
or an evident mistake in the
person, thing, or property,
(2) Mere the arbitrators have awarded upon a matter not
Gubsicted to then, unless it se a matter not affecting
the serite of the decision upon the matters submitted,
(3) tihere"the award te inperfect in a matter of form, net
Sffecting the merite of the controversy
Clearly, none of the above enumerated grounds includes the
authority to remand the award to the arbitrator for any purpose,
let alone remanding for a determination whether modification of
the original award is warranted.
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Moreover, as previously noted,
l avard hae been made, the
arbitrator cones Lean end. He becones
Snder general principles of arbitration lawi,] be cannot in
any way change or explain his avard unless nis authority ie
Feinetated in writing by all parties, or the matter ia
returned to his by the appropriate court.
Jeffers, 73 Haw. at 207, 630 P.2d at 507 (format altered)
(citation omitted) (emphases added). The authority of “the
appropriate court” to return a case to the arbitrator, however,
is Limited.
In Labrador, this court acknowledged two judicially
recognized exceptions to confirmation: “one, to allow remand to
the arbitrator to clarify an ambiguous avard; an(d] another, to
allow vacation of an arbitration award clearly violative of
public policy.” 103 Hawai'i at 212, 61 P.3d at 392 (citation and
internal quotation marks omitted) (emphases added). Thus, remand
to the arbitrator by the circuit court would be proper where an
ambiguous arbitration award requires clarification
“Clarification” of an ambiguous award, however, is
distinguishable from a court’s vacation, modification, or
correction of an award in that “the clarification [canJnot . .
deffers, 73 Haw. at 214, 830
change] the amount of the award.
P.2d at 511 (emphasis added) (holding that the appellees in
Jeffers were actually seeking a modification or correction of the
award "in the guise of a clarification” because the requested
clarification would ‘substantially change the amounts the parties
could receive from [the appellants] ”)
-a1-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
In the instant case, UPW concedes that the circuit
court renanded the case to the arbitrator “to consider whether
there was an evident mathematical miscalculation, not to clarity
any ambiguity." Accordingly, by UPW's om admission, the circuit
court's remand does not fall within the judicially recognized
exception of allowing renand for purposes of clarifying an
ambiguous award that would not result in a substantial change in
the amounts awarded.
In examining UPH’s motion to modify, the circuit court
is confined to acting only within the authority conferred by HRS
55 658-9 and -10 and the judicially recognized exceptions set
forth in Labrador. Inasmuch as the requisite finding of
anbiguity was not made by the circuit court and, because HRS
chapter 658 does not authorize the circuit court to remand the
case to the arbitrator to modify or correct the award, we hold
that, based on the cixcunstances of thie case, the circuit court
erred in renanding the matter to the arbitrator.”
* 1m support of its assertion that the circuit court hae the power to
remand the matter tothe arbicracor,, OPW relies upon several federal ca
Ambleration act. (PaAl, Section l(a) permits’ the federal Slateict court to
odlty or correct an award *{ujnere there was an evideat material
Recalculation of figurea[_I"" $.0-5.6.8 ‘UpW argues that Laurin
Supp. 24 645 (5.5.8.
1599), Geinbare v.-Silbar, 140 F. Sopp’ 2a Tia (-D. Tex 200%), and Saaa
2378 F.2d $77 (2d Che.
967), stand for the proposition that, even though the FAA does not contain
any provisions dealing with renand of arbitration awards to the arbitrator,
the Courts have renanded the avard to the arbitrator to correct an evident
miscalculation of figures, Thes
Contentions and are readily dis
the federal court indicated, prior to renanding the matter to the arbitrator,
that the miscalculation 1 squarely to the nerita of the parties”
(continued...)
-42-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
In light of our holding today, we need not addr
of the remaining contentions raised by Dawson.
IV. coNcLusroN
Based on the foregoing, we vacate the circuit court's
January 6, 2005 final judgment and remand thie case for further
proceedings consistent with thie opinion.
On the briefe: Gr*
John R. Dwyer, Jr. (of Dwyer Stra hrinson
Schraff Meyer Grant & Green),
\
and Blake W. Bushnell (of Mose © Tate aren
Bushnell & Miller), for Pew ~
respondent appellant Deals.
James E. T. Koshiba,
Charles A. Price, and
Andrew D. Stewart (of
Koshiba Agena & Kubota),
for applicant-appellee
++ continued)
Gispute, ‘and resolution of the merits is for the arbitrators, not for the
Iclourt:*" 36 F. Supp. 2d at 652. In Neinberg, the court renanded the
award to the arbitrator for clarification under the exception that
fard may be remanded. 140 F.Supp. 24 at 723-23. Ang, finally,
the basis for the circuit court's renand in Saxig to allow the arbitrator Co
correct a mistake in the computation of the award ie unclear. 375 Pid at S82
B.4. Nevertheless, it is well-recognized that courts are authorized to remand
matters to the arbitrators for clarification where the award is ambiguove.
Bee 7 Inc., 400 F.3d 822 (20th Cir. 2005) (setting
forth's coliection of cases from other circuite where renand to arbitrator for
clarification of ambiguous permitted); nea also
i Wolders. erat fs Local 24, 357 F.3d S40,
553 (sth ‘Cir, 2004), Ae previously discussed, the circuit Court's remand to,
the arbitrator in thie cage uae not authorized by HRS chapter €5¢ and was made
without the requisite finding of ambiguity. Thus, the cases relied upon by
UpW are inapposite.
-43-
|
4213c381-7ac9-462c-a841-dafed6c57a74 | Calderwood v. Hawaii Paroling Authority | hawaii | Hawaii Supreme Court | No. 27441
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
RICHARD M. CALDERWOOD,
Petitioner/Petitioner-Appellant
vs
HRMAI'T PAROLING AUTHORITY,
Respondent /Respondent~Appellee
92 -O1NY 1~9305
aa
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO, 05-1-00137 CR. NO. 93-0518)
x
(By: Acoba, J., for the court)
The Application for rit of Certiorari filed on
Novenber 6, 2006 by Petitioner/Petitioner-Appellant Richard M.
Calderwood is hereby rejected.
Hawai'i, December 1, 2006.
DATED: Honolulu,
FOR THE COURT:
Richard M. Calderwood,
petitioner/petitioner-
appellant, pro se, on
the application.
+ considered by: Moon, C.J.» Levinson, Nakayama, Acoba, and
putty, 33.
|
a5721b94-3d6d-466b-90f8-b084cdfd5808 | Homes v. Hines | hawaii | Hawaii Supreme Court | No. 27382
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
JAMES J. BINES,
Plaintiff-Appellee-Respondent,
KIMBERLY K. HINES,
Defendant ~Appellant-Petitioner.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-DIVORCE NO. 03-1-3701)
ig wa RTI
(By: Levinson, J., for the court")
Upon consideration of the application for a writ of
certiorari filed on September 27; 2006, by the defendant
appellant-petitioner Kimberly K. Hines, the application ‘is hereby
rejected.
Noveaber 1, 2006.
FOR THE COURT:
_
STEVEN H. LEVINSON. yy
Associate Justice ~
DATED: Honolulu, Hawai'i,
R. Steven Geshell
for Kinkerly K. Hines,
defendant-appeilant~
petitioner on the application
Robert M. Harris
for plaintiff-appellee-
respondent, James J. Hines,
on the opposition
‘Acoba, and buffy, 33
Considered by: Moen, ©
qa
|
6f6025bc-dd71-493b-b9ca-13f6cadd800e | Sussman v. Sussman | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27293
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
JANICE LYNN SUSSMAN, Respondent-Appel Lee w: 3
ia
vs. & g .
Sf oe =
ROGER LEE SUSSMAN, Petitioner-Appellantpa/e E
ge = E
5 x
s
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(ee-p NO. 04-1-0468)
a
(By: Nakayama, J., for the court’)
Petitioner-Appellant’s application for writ of
certiorari filed on December 7, 2006, is hereby dismissed as
untimely.
DATED: Honolulu, Hawai'i, December 18, 2006.
FOR THE COUR’
Sutra
Associate Justice
Elizabeth C. Melehan
for petitioner-appellant,
on the application
Moon, C.J., Levinson, Nakaysna, Aceba, and Duffy, 93.
considered by:
|
a8a9c87f-431a-4ffa-8ab8-e1277599f6cb | Tanaka v. Kuriyama | hawaii | Hawaii Supreme Court | No. 28261
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
TROY YOSHIO TANAKA, Petitioner
SI Ony 9.
HONORABLE CHRISTINE KURIYAMA, q
Judge of the Family Court of the First Circuit,
State of Hawai'i; PIYAPORN TANAKA, Respondents
ORIGINAL PROCEEDING
(By: Moon, €.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the petition for a writ of
mandamus filed by petitioner Troy Tanaka and the papers in
support, it appears that HRAP Rule @ provides a procedure for
obtaining a stay of the March 13, 2006 divorce decree pending
petitioner's appeal of the decree in No. 27818 and a writ of
mandamus is not intended to serve as 2 legal remedy in lieu of
normal appellate procedures. See Kema v, Gaddis, 91 Hawai'i 200,
204, 982 P.28 334, 338 (1999) (A writ of mandamus is an
extraordinary remedy that will not issue unless the petitioner
Gemonstrates a clear and indisputable right to relief and 2 lack
of alternative means to redress adequately the alleged wrong or
obtain the requested action. Such writs are not intended to
supersede the legal discretionary authority of the lower courts,
nor are they intended to serve as legal remedies in liew of
normal appellate procedures.). Therefore,
9s
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
ORTED: Honolulu, Hawai'i, December 6, 2006.
Lynnae Lee and
's Kam for
the petition
|
b70f0028-ae43-46d4-a1a1-4990033a3501 | Bhakta v. County of Maui. S.Ct. Order Amending the Opinion of the Court, filed December 13, 2005, filed 12/30/2005 [pdf]. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
a
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
-000-
ee
SYOTSNA BHAXTA,
individually and as Personal Representative
Of the Estate of MITESH BHAKTA, Deceased; NIKHIL BHAKTA,
Qiminor, by his Next Friend, CANDACE TURNER; DEWAL SHAH,
‘Thdividvally and as Personal Representative of the
Estate of MEGHAL SHAH, Deceased; DAXA BHAKTA, Individually
‘and as Personal Representative of the Estate of
BHUPENDRA BHAKTA, Deceased; CATHY M. ARENDS, Individually
nd as Personal Representative of the Estate of
DONALD ARENDS, Deceased, Plaintiffs-Appellants;
COUNTY OF MAUI, STATE OF HAWAI'I,
‘Defendante-Appellees,
and
ng RY €} asia
a
JOHN DORS 1-5, JOHN DOB CORPORATIONS 1-5, JOHN DOE
PARTNERSHIPS 1-5, ROE NON-PROFIT CORPORATIONS 1-5,
‘Gnd ROE GOVERNUENTAL AGENCIES 1-5, Defendants.
a
No. 24780
APPEAL FROM THE SECOND CIRCUIT COURT
(crv. No. 99-0074(1))
DECEMBER 13, 2005
MOON, ¢.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ
OPINION OF THE COURT BY MOON, C.J.
‘his negligence action arises out of the drowning
deaths of four men, Meghal Shah, Mitesh Bhakta, Bhupendra Bhakta,
and Donald Arends [hereinafter, collectively,
the decedents], at
Ke'anae Landing on the north shore of the island of Maui, Hawai'i
(between Psia and Hana). On May 5, 1999, plaintiffs-appellants
Dewal Shah (Dewal), gyotena Bhakta (Jyotena), Daxa Bhakta (Daxa),
and Cathy Arends (Cathy), the wives of the decedents
(hereinafter, collectively, the widows), filed their first
amended complaint, individually and as personal representatives
of their respective husband's estate, and Nikhil Bhakta, the son
of Mitesh Bhakta [hereinafter, the widows, the decedenta’
estates, and Nikhil Bhakta are collectively referred to as
Plaintiffs], alleging negligence against the County of Maui (the
County), the State of Hawai'i, and Doe defendants. Following a
jury-waived trial, the Circuit Court of the Second Circuit, the
Honorable Artemio C. Baxa presiding, entered final judgment on
November 21, 2001 in favor of defendant-appellee state of Hawai'i
(the state) .*
Plaintiffs appeal from the final judgment entered in
favor of the State, challenging the trial court's; (1) Decenber
26, 2000 order denying their motion for summary judgnent; and
(2) Novenber 5, 2001 findings of fact (FOF), conclusions of law
(COL), and order. On appeal, Plaintiffs raise ten points of
error, discussed infra, essentially raising issues regarding the
State’s duty to warn the Plaintiffs of, and failure to protect
them from, the dangerous ocean and man-made conditions at Ke'anae
Landing, as well as evidentiary matters. Plaintiffs challenge
By the tine of trial, the state was the only remaining defendant
inasmuch as the County had been previously dlemiseed via eurmary judgment
approximately fifty of the 115 FOFs and Cots issued by the trial
court.? For the reasons discussed below, Plaintiffs’ contentions
jack merit, Accordingly, we affirm the trial court’s tinal
judgment -
T. BACKGROUND
A. Factual Racksround
‘as explained in greater detail below, the events on
January 30, 1997 leading to the drowning of the decedents Pesan
when Meghal Shah (Meghal), a tourist from Georgia, was allegedly
swept into the ocean while standing at the Ke'anae Landing area.
pesides the individuals who were with him (hereinafter, the
Georgia Group], other individuals passing by on the highway
thereinafter, the Utah group] and local residents living nearby
congregated at the landing area to help.
2. Ke'anae Landing
‘the State owns the land upon which Ke'anae Landing is
Jecated. Originally constructed around 1917, Ke'anae Landing
consisted of a wooden pier and was once a commercial wharf, but
the pier was destroyed during tidal wave in 1946-
today, Ke'anae Landing, considered a historical site,
consists of an upper landing area with concrete stairs descending
approximately six feet to a lover concrete landing area at the
> qe should be noted that, although Plaintiffs dispute many of the
trial court's Fors a2 being contrary to the evidence, they failed to. ©
eriah coure’s fore in their seatenent of points of exror. heir contentions
Sith Peepect co the latter PO! cherbfore, waived. eg Hawai'i Rules of
with fevpesrocedure (HRAP) Rule 20(b) (4), ("Pointe RoE presented in accordance
AEERlthis ection will be disregarded{.]")
edge of the ocean. The upper landing area is constructed atop
the natural lava rock coastline, approximately six feet above sea
level. A small, unmarked, and unpaved dirt area is located
adjacent to the upper landing area where vehicles can pull off
the road and park. According to the trial testimony, surfers and
divers now use Ke'anae Landing as an access to the ocean and,
periodically, small boats are launched from the landing area.
2. The Georgia Group
On the afternoon of January 30, 1997 (at a little after
2:00 pem.), married couples Meghal and Dewal,? Mitesh Bhakea
(4itesn) and Jyotana, Bhupendva (Bhupendra) Bhakta and Daxa
Ihereinafter, collectively, the Georgia group] arrived at Ke'anae
Landing. They were residents of Georgia, vacationing in Hawai'i,
and had been sightseeing at various locations on Maui before
arriving at Ke'anae Landing. They parked their van in the dire
area adjacent to the upper landing area, exited the vehicle, and
took several photographs of the ocean and the landing area.
Meghal then walked down a concrete pathway leading to
the upper landing area; Dewal followed him. Meghal asked Dewal
to take a picture of him while he stood in front of a pylon or
boat tie structure located on the pathway. Meghal then walked
down the stairs leading to the lower landing area. Dewal began
to follow him, but turned and ran back to the pathway after some
water splashed on her. When Dewal locked back towards the lower
> Dewal subsequently remarried in 1999 and is now Dewal shah Patel
landing area, she could no longer see Meghal. Subsequently,
Dewal went down the pathway and stopped, whereupon she saw Megha?
in the water and told the rest of the Georgia group.‘ At that
point, Mitesh and Bhupendra went down to the lower platform to
assist Meghal as he attempted to awim back onto the landing are:
As Mitesh and Bhupendra were trying to help Neghal, the water
pulled Meghal away from the landing area. At some point, Mitesh
jumped inte the water. When Mitesh reached Meghal, he grabbed
Meghal on one side and started pulling Meghal toward the lower
platform. At that point, Daxa went down to the lower platform to
give Bhupendra some rope that she had found. Dewal then saw
Bhupendra throw the rope to Mitesh, who was able to grab onto it.
once Dewal saw Mitesh and Bhupendya pulling Meghal, who, by that
time, was not responding, she headed away from the landing area.
‘The Utah Group
While Mitesh and Bhupendra were helping Meshal, Jyotsna
and Daxa headed away from Ke'anae Landing in search of
assistance. Daxa flagged down a van passing on the highway
adjacent to Ke'anae Landing that was occupied by two married
couples: Donald and Cathy Arends and Billy and Pauline Crump.
Following in a second van were two other married couples: c.
Wayne and Carene Erickson and Stephen and Judy Kenyon. All four
‘me trial court found, which Plaintiffs dispute, that [Jt ie
unknown how Meghal Shah entered the water." Plaintiffs aesert that they
proved Megral wag swept into the ocean by a wave. However, the State mentions
Phat Deval testified that she did not recall how Neghal got into the ocean,
‘whether the waves swept hin in, whether he jumped in, or shether he slipped
Inte the ocean.
couples were visiting from Utah (hereinafter, collectively, the
Utah group] .
After parking their vans, Donald Arends (Donald), a
fireman, immediately rushed to the landing are
By this time,
Meghal had stopped swimming and was floating face down in the
water, and Mitesh and others were pulling Meghal onto the lower
platform.
4. The Local Residents of Maui
Wnile menbera of the Utah and Georgia groups were
helping Meghal, local Maui reaidente Harry "Bobo" Pahukoa, IIT
(Bobo), J.D. Pabukoa (J.D.), Sam Holi (Sam), Guy Akiu (Guy), and
Ben “Kino* Morton (Kimo) were at the residence of Harry Pahukoa,
11, which 4a located about a quarter-mile from Ke'anae Landing.
Sometime in the afternoon of January 30, 1997, a tour van driver
came up to the Pahukoa residence, shouting for someone to call
vo11." Sam immediately drove to Ke'anae Landing with Kimo and
J.D., arriving in less than thirty seconds, and they all
proceeded to the lower platform to help bring Meghal out of the
water. At this point, several members of the Georgia group, the
Utah group, and the three Maui men (Sam, Kimo, and J.D.) were on
the lower platform attempting to help Meshal.
once Meghal was pulled onto the lower platform, Sam
suggested that they move Meghal up to higher ground. However, at
+ Bobo {a a Life-Long resident of the Ke'ande area and was familiar
vith the ocean and e'snae Landing. Bobo and J.0. are the sons of Harey
Fahukon 1. dam, vho han lived ih the Xe'anae area since 1992, ie the
brother-in"lav of Bobo and J.D. (married to their sister). Guy is the cousin,
of Bobo and 9.9. Kino ia Bebo's friend.
that same instant, Donald called out that he knew how to perform
cardio-pulmonary resuscitation (CPR) and went down to the lower
platform. As Donald began to perform CPR, a wave struck the
landing area, sweeping everyone who was on or near the lower
platform into the ocean, that is, Meghal, Mitesh, Bhupendra,
Donald, Cathy, Billy, Sam, J.D., and Kimo,
While the above-described events were occurring, Bobo
and Guy were still at the Pahukoa residence as Bobo was getting
some rope and two life vests before heading to the landing area
At gome point, Bobo's friend, J.J. Hueo (J.J.), ale> arrived at
Ke'anae Landing with hie surfboard. By the time Bobo, Guy, and
J.J. veached the landing area, all of the nine people referred to
above were in the water.
Bobo was able to pull his brother, J.D., out of the
water with the rope. Bobo then jumped into the water, wearing
one life vest and carrying the other. Bobo swam over to Donald
and one of the Georgia men and gave then the life vests. Bobo
then rescued Billy and brought him to the upper landing area
where the others could hold onto him. A few minutes later, Bobo
re-entered the water, taking J.J.’s surfboard, and rescued cathy.
Unfortunately, Bobo and the other Maui residents could
rescue only J-D., Billy and Cathy; Meghal, Mitesh, Bhupendra, and
Donald either drowned or sustained fatal injuries from being
thrown onto the rocks by the waves.
5. Ocean and Weather Conditions on January 30, 1997
According to the trial court’s undisputed FOFs, the
ocean and weather conditions on January 30, 1997 were as follows
60. At 6126 a.m. on January 30, 1997, the Maui civil
Defense Agescy issued High’ surt Advisory #3, which
stated as follows:
‘burton west and north shores this sorning will be
Hieing § to 12 feet. The buoy that is northwest of
Kaus'l indicates that these waves should arrive by
Ridnorning on the western islands. Telands east of
Gah waTl see saven thar are slightly lower arriving
Gi. At Tnr45 a.m. On January 30, 1997, the Maui Civil
‘agency. iseued High Sure Advisory Ws. Inst
‘weuel 12 sours, High Surf Advisory #4 was
Geeued approximately three hours after High Surf
Advisory #3 Because there was a higher surf size
Bigh Surf Advisory #4 cautioned as follows:
“surf heights on the north shore of O'ahu and Kaua'i
are presently Jo to 12 feet. Swelle passing at sucy 1
‘west of Kaua'i indicate that the surf ehould
Hise as igh ag 10 to 25 feet this afternoon on the
north shored [sic] and about 6 to 10 feet on west
fhoree, delands east of Oanu will see waves that are
Siigntiy lower arriving this afvernoon
62. The areas on Maul targeted by the advisories included
Fala('and Bockipa to Mona (Lig. che Kearse Landing
62, Sandra Hue(o] had lived in xe'anse for twenty-six (26)
years. Ne. sue(o) testified that on the moraing of
January 30, 1957, she went co her hone cn the Ke'anse
Peninsula located approximately 20 co 75 feet from the
Re‘anse Landing, and that the weather that morning was
rainy, cloudy[,) and miecy,
B. Procedural History
on January 29, 1999, Jyotena, individually and as
beneficiary and legal representative of Mitesh Bhakta, and Nikhil
Bhakta, a minor, by his next friend Candace Turner, filed the
instant negligence action against the County and the State. on
May 5, 1999, an amended complaint was filed, naming the widows,
individually and as personal representatives of their respective
husbande’ estates, and Nikhil Bhakta, the son of Mitesh Bhakta,
as plaintiffs. The amended complaint alleged that the County and
the state,
on or before January 30, 1997, knew, or in the exercise of
Peasonable cave should have known, that wave, water or other
Aquatic conditions of or in the Pacific Ocean adjacent to
Ke'anae Landing, vas/vere potentially dangerous to
Asitors of the area) including [tne decedents)
jaid defendants, and/or any of them, failed to ade
ara or protect plaineiffe or any of them, or others, of or
from the aforesaid dangerous aquatic conditions:
on May 4, 2000, the County moved for summary judgment
on the ground that it neither owned nor occupied the landing
area, Neither the State nor Plaintiffs opposed the County's
motion, On August 30, 2000, the trial court granted the County's
motion, dismiseing all claims against the County.
on October 23, 2000, Plaintiffs moved for sunmary
judgment against the state on the bases that the state was
negligent in failing to warn of and protect the Plaintiffs from
the dangerous ocean and man-made conditions at Ke'anae Landing.
on December 26, 2000, the trial court denied Plaintiffs’ motion
for sunmary judgnent on the ground that the existence of genuine
issues of material fact precluded summary judgment.
A jury-waived trial againet the State commenced on July
9, 2001, which included a site inspection of Ke'anae Landing
conducted by the trial court on July 16, 2001, pursuant to a
stipulation of the parties. Trial was concluded on July 18,
2001.
on August 6, 2001, the State filed a motion for
judgment, which the trial court granted on Novenber 5, 2003,
issuing FOFs, COLe, and an order granting judgment as to all
claims and all parties in favor of the State and against
Plaintiffs. tn pertinent part, the trial court concluded that
Act 190 (relating to public land liability immunity) relieved the
State of any liability to Plaintiffs. In the alternative, the
trial court concluded that the State did not have any common law
duty to warn of any dangerous conditions because the extremely
dangerous ocean conditions at Ke'anae Landing on January 30, 1997
were open and obvious to persons of ordinary intelligence. tn
support of its ruling, the trial court entered the following
relevant FOFs, which Plaintiffs disput.
9. There wag no evidence that any drownings occurred at
Ke'anae Landing prior te January 30, 1937.
20, There waa no evidence that the State was aware or
Should nave bean guare of any drownings of near~
Gromings occurring at Ke'anae Landing prior to
Samuary 30, 1957.
‘he Court finds that the parking area adjacent to ()
Ke'snae Landing ig not 2 Geate-naintained parking let,
Due a mall dire turn off whore vehicles can pull off
the road or make U-turns; the Court further finds that
the landing and surrounding area was neither defective
nor dangerous.
G41 "fia, Hue fo) costities that as she drove to her home and
passed () Ke'anae Landing, she noticed that the oceen
Sonditions by the landing vere rough and that the
6s. Mae Eified that she noticed that
there was white water as the water hit the rocks and
she could hear che vaves hitting the rocks. she sa
the water coming over the rock wall between the
landing and Xe'anae Boat Ramp.
66. Ma. Hue tole
12 conditions
‘morning of
30, 1997(,] and worsened ar the day
progressed
67. Mr. [Bobo] “Pahukoa testified that he is able to see
the ocean from the backyard of his house at Ke'anse,
and that if the waves were crashing near his howe, ‘the
Conditions at {) Ke'anae Landing would be the wane.
6s. According to [Bobo], on January 30, 1997, he had been
Working on his eruck at Ais house and saw that the
‘Scean conditions near his hone were rougn. (Bobo)
Eectitied that che rough ocean conditions existed from
the moraing hours and ehat he could hear the waves
breaking and crashing upon the rocks at the landing
-10-
n
2.
1.
16.
80.
nen (Bobol arrived at [Ke'anze] Landing, he saw that
the area by the landing was wet and water was hitting
fe “fe"cotnd hear the waves crashing When he arrived
at the Landing, and estimated that they were breaking
EE six to seven feet.
{Bobo} est inated that the biggest waves he saw on that
day were at least 15 feet high
faves of the magnitude witnessed by (Bobol would be
Gutrenely dangerous at {) Keanae Landing, given Dr,
Mark Merrifield’s teatinony that a ten-fcot wave could
ath up on the upper landing
Br. crigg’s testimony that the people in the Utah and
Georgia Groups lacked experience and understanding
fegarding the ocean and its sets and lulls, and
therefore that the dangers were deceptive and not oper!
and obvious to them, was refuted by che testimony of
Senbers of the Utah Group.
Ke sudy Kenyon's van approached (} Kelanse Landing,
she thought it was stupid fer Meghal shan to be
Svinning out “in that” because ir seened rough, there
Sire lava rocks around, and it was not a good place C0
ein.
Garene Erickson wondered why Meghal shah was swiaming
{nthe water because it aincet looked like @ whirlpool
and there was a lot of lava rocks.
Sayne Erickeon did not find (] Kelanse Landing to be
pretty or picturesque. The ocean was not calm, and
Ehere was no “giase-like sheen") rather, it was
Earbelene and churning.
Stephen Kenyon observed the water looked quite rough
25 he drove the second van containing menbers of the
Btah Group down the road on the Ke'anse Peninsula
Billy Crump of the Urah Group testified chat when the
Utah Group arrived at the scene, che waves coming in
were big and breaking off the rocks, and it was noley.
Nr. ‘ceunp described the ocean Conditions when ne first
palled off the highway ae [] Ke'enae Landing a
follows:
“Tt wae rough, There was big waves way out there, but
ab far as the Lava rock, yes, the waves Just coming in
Gnd banging off che rocks. that’s way T said to
Syeelt, why in the bell 1a that guy down there
elesing.”
Aa the Ueah group was driving to Hana, Pauline Crump
Could’ see the ocean and it aid not 1eok bad. By
Comparison, the ocean at (] fe'anae Landing looked
Eade wre. Crump testified “ie was pounding the rocks
and that. You could see it.”
Ka the Urah Group wae driving down to the Ke'anae
Penineuls, Pauline Crump said it vas raining a little
fore than it had been earlier and you could see the
Saver pounding the side of the rocks.
Dr, Grigg" opinion that the lull tive between the
Sete were five to ten minutes, and that the water was
Galn between sets, is not credible.
Mark Merrifield, h.D., the {] State's expert in
Seeanography, opined that 2 lull tive of five to ten
inutes between sete on January 30, 1997, seemed to be
Guite long. Moreover, Dr. Merrifield algo testified
that it would mot have been completely calm between
[ull periods, which ne defined as the time during
“hicn wave heights did not exceed five feet
e1n-
95.
‘Therefore, even if it had been ten minutes between the
ten feet waves, the actual calm periods betwen waves
would’ have Iasted less chan a minute. De. Merrifield
Opined that anywhere from 70 to 75¥ of the waves on
Sanuary 30, 1897 were greater than four feet, and
would aggressively impact the landing.
Br. Grigg conducted a dye test to deternine the ocean
currents at Xe'anae Landing and found there was a
shiriposl effect or current. Dr. Grigg ceetitied that
this whirlpool effect would have kept Meshal shan in
that area and made it difficult for him co cone co.
Shore. Dr. Grigg testified that it was this whirlpool
effect [that] caused Megha! Shah to drow
According to Dr. Grigg, if a person was walking down
fhe landing ares, that’ person would see the landing aa
St exists and that there wae no guard railing, Dr
Grigg further stated that’s peracn would also see that
there vas nothing to protect him or her if that person
ere at the bottom sf the Landing’
‘The evidence denonstrates that i2 was the extrenely
dangerous ocean conditions which caused the death of
the decesents
The evidence denonstrates that the extrenely dangerous
Ocean conditions which caused the deaths of che
Gecedents were open and obvious to persons of ordinary
intelligence:
Even though the decedents were not from Hawai'i and
from landlocked states on the continental United
States, persons of ordinary intelligence, as were
these decedente, would and ehould have known that the
ocean conditions on the day of the incident were
extrenely dangerous
In the photographs admitted . . ., churning, murky
water, large wave action, and whitewash are seen next
fo {)'Ke'anae Landing seconds before the tragic
Sneddent began.
‘he Court finde chat according to evidence adduced at
trial, specifically evidence of che bigh surf and
choppy wave conditions, the extremely dangerous
Conditions in the ocean were open and obvious to
persons of ordinary intelligence on the day of the
Eneigent.
The testinonies of Deval shah Patel, Daxa Bhakta, and
Syotana shakes Patel that the ocean’ conditions at
Kelanae Landing on January 30, 1997 were calm is not
credible. th addition to photographic evidence of the
pen and obvious nature of the extrenely dangerous,
Nave conditions, the Court finds creaible th
Eestinony of witnesses Sandra Hue(ol, Harry “Bobo
Pahukoa, TIT, Sam Holi, and Billy Crimp, all of whom
Eeutifiod that the ocean conditions at {) Keanae
Landing on the day of the incident were rough.
‘The trial court also entered the following relevant COLs, which
Plaintiffs also dispute:
99. Act 190 ie the applicable law in this cage, and (the!
State wae not required to reise it es an affirmative
defense in ita Answer.
jd.” Ae set forth in the plain language of Act 190(€) ,
ithe! State doe not have a duty co warn of dangerous
natural conditions in the ocean on beach acc
coastal sccesses, or in aress that are not
beach parks.
ios. Act 190 limits [the] state's duty to warn of dangerous
Datural conditions, specifically shore breaks and
Strong currenta in'the ocean, to situations when these
‘Seean conditions occur adjacent to public besch parks
operated by (the) state.
dog.” Under Act 190, [the] state aid not have « duty to warn
Plaistifés of dangerous natural conditions in the
Ocean, specifically the shore break, the strong
Catreat hear the landing, and the high surf abutting
() Ke'anae banding!
107, Act 190 relieves (the) State of any liability to (]
Plaineises:
ios, Even aeauning that Act 190 41d not apply in thie
ction, [the] State did not have any comon law duty
fo warn of the extrenely dangerous natural conditions
In the ocean at) Keanae Landing that caused the
deaths of the decedencs.
ind.” Getendant seate, as omer and occupier of ] Ke'ena
Landing, a piece of state properey abutting the ocean,
Shed a Guty"co warn Plaincifes of extremely dangerous
Sonditions in the ocean, which were!” (3) not known oF
SEvious co persone of ordinary intelligence; and (2)
Sn’the exercise of reasonable cere ought to have been
known to the oecspier.
nit, Recording to the evidence adduced at trial, the
Crtrenely dangerous conditions in the ocean were open
SN Gbvidus co persons of ordinary’ intelligence on the
Sty Sf the incident.
in.” Since the danger wae open and obvious, [the] state aid
ot ove s duty to Plaintiffs to warn of the extrenely
Gangerous condition that caused the deaths of the
decedent
1n4, Based upoa the evidence presented, this court finds that
Plaintifes did not meet their burden of proof to show that
Ordinary care vas not used by [the] state
on November 21, 2001, final judgment was entered in favor of the
State. Plaintiffs timely appealed on December 19, 2001.
TI. STANDARDS OF REVIEW
Motion for Summary Judgment
‘This court reviews a circuit court's grant or denial of
summary judgment de novo. Brice v. AIG Hawai'i Ins. Co., 107
213+
Hawai'i 106, 110, 111 P.3d 1, 5 (2005) (citation omitted). The
standard for granting a motion for summary judgment is well
settled:
[slumary judgnent is appropriate if the pleading:
Geposicions, answers to interrogatories, and admissions on
file, together wich the affidavite, if any, show that there
{eno genuine iosue as to any material fact and that the
noving party is entitled to judguent as a matter of law. A
fact is material if proof of that fact would have the effect
ef establishing or refuting one of the essential elements of
‘of action oF defen srted by the parties. The
re must be viewed in ight most favorab:
Bon-moving party. In other words, we must view all of the
evidence and the inferences dravm therefron in the Sight
most favorable co the party Opposing the motion,
Id. (brackets in original) (citation omitted). Moreover,
“summary judgment must be used with due regard for its purpose
and should be cautiously invoked so that no person will be
improperly deprived of a trial of disputed factual issues.”
Miller v. Manuel, 9 Haw. App. 56, 65-86, 828 P.2d 286, 292 (1991)
(brackets, citation and internal quotation marks omitted) .
B. Findings of Fact
‘This court reviews the trial court’s FOFs under the
clearly erroneous standard. Ueoka v. Szymanski, 107 Hawai'i 386,
393, 114 P.34 892, 899 (2005) (citations omitted) .
An) (FOP) ie clearly erroneous when, despite evidence
to support the finding, the appellate court is Left with
Gefinive and firm conviction in reviewing the entire
evidence that a mistake has been committed. A(a) (POF) ie
iso clearly erroneous when the record lacks substantial
Evidence to support the finding. We nave define
jubstantial evidence as credible evidence wien ie of
sufficient quality and probative value to enable a person of
Feasonable caution to support a conclusion:
ome: , 104 Hawai'i 43, 51, 85 P.3d 150, 158 (2004)
(citing Beneficial Hawai'i, Inc, v. Kida, 96 Hawai'i 289, 305, 30
P.3d 895, 911 (2002).
-14-
C. Conclusions of Law
‘This court reviews the trial court’s CoLs de novo.
Rremer, 104 Hawai'i at $1, 85 P.3d at 158. “A COL is not binding
upon an appellate court and is freely reviewable for its
correctness.” Allstate Ins, Co, v. Ponce, 105 Hawai'i 445, 453,
99 P.3d 96, 104 (2004) (citations and internal quotations marks
omitted). Moreover, “[a] COL that is supported by the trial
court's [FOFs] and that reflecte an application of the correct
rule of law will not be overturned.” Id, (brackets in original)
(citations and internal quotation marks omitted).
D. Statutory Interpretation
Statutory interpretation is reviewed de novo by this
court. Blair v. Ing, 95 Hawai'i 247, 253, 21 P.3d 452, 458
(2001) (citations omitted). ‘When construing a statute, our
foremost obligation is to ascertain and give effect to the
intention of the legislature, which is to be obtained primarily
from the language contained in the statute itself." Taylor-Rice
va State, 105 Hawai'i 104, 108, 94 P.3d 659, 663 (2004)
(citations omitted). Moreover, “[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." T-Mobile USA, Inc. v, County of Hawai'i Planning
Comm’n, 106 Hawai'i 343, 352-53, 104 P.3d 930, 939-40 (2005)
(citation omitted) .
<15-
. Evidentiary Rulings:
(]ifterent standards of review must be applied to
trial court decisions regarding the admissibility of
evidence, depending on the requirenents of the particular
Fule of evidence at issue. When application of a particular
evidentisry rule can yield only one correct result, the
Proper standard for appellate review is the right/wrong
fandara. Where the evidentiary ruling at Leaue concerns
niseibility based upon relevance, under. (Hawa
Rules of Bvidence (NR)] Fules 401 and 402, the proper
Standard Of appellate review i the right/wong standard
In_xe Estate of Herbert, 90 Hawai'i 443, 460, 979 P.2d 39, 56
1999) (citations omitted) (ellipses and some brackets in
original) (some brackets added). However, “(e]videntiary
decisions based on HRE Rule 403, which require a ‘judgment call’
on the part of the trial court, are reviewed for an abuse of
discretion." id, (citation and quotation marks omitted) .
“(t]he extent of cross-examination is a matter largely
within the discretion of the trial court and will not be the
clearly prejudicial to the complaining
subject of reversal unl
party." Kekua v, Kaiser Found, Hosp., 61 Haw. 208, 221, 601 P.2d
364, 373 (1979) (citations omitted).
Tt is well-settled that the “admissibility of expert
testimony ie reviewed for abuse of discretion." Mivanoto v. lum,
104 Hawai'i 1, 7, 84 P.3d 509, 515 (2004) (quoting Craft
Peebles, 78 Hawai'i 267, 301, 893 P.2d 138, 152 (1995)) (internal
quotation marks omitted). The appellant bears the burden of
showing that the trial court’s decision “clearly exceeded the
bounds of reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant." Hac
n16-
vw. Univ. of Hawai‘i, 102 Hawai'i 92, 102, 73 P.34 46, 55 (2003)
(citations and internal quotation marks omitted) .
iT. pIscuSSION
A. Denial of Motion for Summary Judgment
Plaintiffs sought summary judgment with respect to:
(1) their claims that the State was negligent in failing to warn
and protect them against the dangerous conditions at Ke'ana
Landing; (2) the widows’ claims of negligent infliction of
emotional distress; and (3) the loss of consortium claims of the
widows and Mitesh’s son, Nikhil Bhakta. On appeal, Plaintiffs
contend that the trial court erred in denying their motion.
‘he State argues that, under the "Morgan rule,” the
trial court’s denial of Plaintiffs’ motion for summary judgment,
which was based on ite finding that genuine issues of material
fact existed, ia not reviewable on appeal. The Morgan rule was
adopted by this court in Larsen v, Pacesetter Systems, Inc.,
Haw, 1, 837 B.2d 1273 (1992). Therein, this court stated:
At an early atage in che development of th
eumary judgnent, the rule developed that an ords
the motion could not be appealed if denial was based on the
presence of factual questions for the jury, but could be
Eppealed if based on questions of law. J+ Rothschild,
se Pract w Yorks A Review of
Judicial Experience undar the Civil Practice Act, 23 Col. u,
Rev, €i8, €48 (1923). This rule seans to explain the
holding in organ v. American University, 534 A.24 323 (D.C.
dpe. 1989), the case upon wich plaintiff relies for its
Aescrtion that denials of summary judsnente are
lnceviewable. In Morgan, the court reasoned that where
susmary judgnent was denied because of the existence of
fesues of fact and the case was subsequently decided by the
ory ceversel on appeal would allow w decision based ¢x
evidence, £0 prevail over one reached on more. Idk. at
316. Significantly, however, the court also ruled that any
egal rulings sade’ by the trial court at summary judgment
Ebuld be reviewed on appeal id. at 327
oat
Id, at 17-18, 637 P.2d at 1282-83 (underscored emphases in
original) (bold emphasis added). In Laxsen, the defendant
appealed the trial court’s denial of its motion for summary
judgment on the plaintiffs’ implied warranty claim. Id, at 17,
837 P.2d at 1282. The defendant’s appeal of the denial came
after a jury trial on the merits in favor of the plaintiffs. Id.
This court noted that it was “clear from the record that the
issue argued and decided on sunmary judgment -- whether the
defect asserted by plaintiff was actionable -- was a question of
law." Id. at 18, 837 P.2d at 1283. Thus, this court held that
the defendant was entitled to a review of the trial court’s
denial of its motion for summary judgment. id,
im Gump v, Walmart Stores, Inc., 93 Hawai'i 428, 5 P.3d
418 (App. 1999), att’ = ev! other
grounds, 93 Hawai'i 417, 5 P.3d 407 (2000), the Intermediate
Court of Appeals (ICA) applied the dual framework established by
Larsen, ice., “that a denial of summary judgment based on the
presence of factual issues is not reviewable, while a denial
based on questions of law ie." Id. at 437, 5 P.3d at 427
(citation omitted). In applying the dual framework, the ICA
stated:
The order denying [defendant's] motion for summary
judgment as to the negligence claim is reticent as co the
Reasons underlying the trial court's decision. No findings
of fact or conclusions of law were filed thereon, and none
Rul
of Civil Procedure (iRCP) Rule
a
Were. require:
52a)
‘The transcript of the hearing on the motion provide
however, sone inkling as to the basis of the court's deni
A perusal of the transcript reveals two possible, but
mutually exclusive Bases: (1) that what consticutes
Constructive notice of the specific instrumentality of the
-18-
accident (the french fry, in this cage) is always a matter
Of tact for the Jury, and (2) that what constievces
Soostructive notice ean Senue involving Wal-Mart's genera
Rode of operation, in and of itself and without primary
Teterence’ to the specific instrumentality of the’ accident
he to the first basis, the court queried:
Tn't that to be lefe co the fact finder if that’s
reasonable? jinas Sf your client noticed every bour of eve
Gay, would you say that we atill had no notice Because we
inspected at the end of the day. Whether that’s reasonable
or not, shouldn't that be left co the fact finder?
‘he'to the second basis, the court stated:
Tf the possessor should have known of the unreasonable
risk .". ‘ing dnpose a duty to the person using the land to
take reasonable steps to eliminate the unreasonable risks.
‘The argument 1s if the person knows oF should have knows
that food itens would be taken out on the floor and
Shouldn't this be a factual question to determine whether
the land omer, in ehis case Mebonald’s, took reasonable
Stops to eliminate this unreasonabse cick?
Because che court denied sumary judsvent on the
negligence clains based upon an issue of isaue= of law,
Giseilied trom ehe transcript. and enumerated above, we are
peraitted, under Jarsan, to review the denial.
Gump, 93 Hawai'i at 437-36, 5 P.3d at 427-28 (ellipses in
original). Larsen’s dual framework is in line with the majority
of federal and state jurisdictions. See Lumy, City & County of
Honolulu, 963 F.2d 1167, 1170 n.1 (Sth Cir. 1992) (adhering “to
the majority view that in the ordinary case where a motion for
summary judgnent has been denied because the trial court
determined that issues of fact had to be tried, there is no
useful purpose in reviewing the pretrial ruling on summary
judgment after a plenary trial on the merits’); Evans v. Jensen,
655 P.2d 454 (Idaho App. 1982) (holding that it is the general
rule that an order denying a motion for summary judgment is not
reviewable on appeal froma final judgment; any legal rulings
made by the trial court affecting that final judgment can be
reviewed at that time in light of the full record); Kiesau v.
Rantz, 686 N.W.24 164 (Iowa 2004) (holding that after a full
-19-
trial on the merits, @ previous order denying a motion for
summary judgment is no longer reviewable).
in the present case, the order denying Plaintiffs’
motion for summary judgment stated that the motion was denied
“because there [were] genuine issues of material fact.” In their
memorandum in support of their motion, Plaintiffs contended that
they were entitled to surmary judgment because there was no
ispute that: (1) the landing site was dangerous; (2) the state
had a duty to either remove the dangerous conditions or warn of
them; and (3) the State neither removed the dangerous conditions
or warned of them, in breach of its duty. In response, the state
argued that summary judgment was improper because it had no duty
to warn inasmuch as: (1) Ke'anae Landing was not a state beach
park; and (2) the conditions relating to the landing site were
known or obvious. The state also maintained that the question
regarding causation, i.e., whether the conditions of the landing
site or the ocean caused the incident, was for the jury, not the
court, to determine. the transcript of the hearing on the motion
sheds Light as to the basis of the trial court’s denial of
Plaintiffs’ motion. The trial court stated:
[2)f (Act 190] says the State owes a duty to exerciee
reasonable care and warn park users about dangerous
Conditions which are not known or reasonably discoverable by
Persons of ordinary intelligence, but che state is not
Liable for dangerous conditions under its control, if as you
say this is dangerous, chen ig there nota material dispute
genuine iasue of material fact here as
here as to whether
aot iret vane 1 are)
if, = think there should be, even basically from your
own Submiesions, bat you, yourself, characterize it ae
dangerous
-20-
Based upon those -- the first one I mentioned, at
ie fron what ‘the Court can conclude, there are genuine
of sing to env the
motion.
(Emphases added.) Inasmuch as the trial court denied summary
judgment based upon the existence of a genuine issue of material
fact, we hold that Plaintiffs are not entitled to a review of the
denial of their motion for eunmary judgment.
B. act 190
Act 190, entitled *A Bill for an Act Relating to Public
Land Liability Immunity," was enacted in 1996. 2996 Haw. sess.
L. Act 190, at 434-37. The purpose of the legislation was to
vestablish a process in which the State and counties can provide
both meaningful and legally adequate warnings to the public
regarding extremely dangerous natural conditions in the ocean
adjacent to public beach parks." Id., § 1 at 434-35. Act 190
took effect on July 1, 1996, and was to be repealed on June 30,
1999. Id., § 7 at 437. The repeal date was later extended from
June 30, 1999, to June 30, 2007. See 1999 Haw. Seas. L. Act 101,
§ 2 at 370; 2002 Haw. Sess. L. Act 170, § 2 at 610.
Section two of Act 190 provides in pertinent part:
(a) the State or county operating 2 public beach park shall
have a duty to warn the public specifically of dangerous
shorebreak or strong current in the ocean adjacent to a
public Beach park if these conditions are extrerely
Sangerous, typical for the specific beach, and if they pose
| risk of ‘serious injury or death.
ici either the state nor 2 county shall have @ duty to warn
on Beach acces that a
ot public beach parks of dangerous natural conditions in
the ocean.
(f) Neither the state nor any county shall have a duty co
warn of dangerous natural conditions in the ocean other than
ae provided in ehis section
-21-
1996 Haw. Sess. L. Act 190, § 2(a), (e), and (£) at 435.
1, The Trial Court’s Conclusion that Act 190 is not
an Affirmative Defen: .
With respect to the Plaintiffs’ contention that the
State was required to affirmatively declare ite reliance on Act
190 in its answer to the complaint, the trial court concluded:
98. Act 190 ie the applicable law in this ca
Defendant state was not required to raie
Sftizmacive defense in its Answer’
ini. [elven assuming that Defendant state was
feguires to raise Act 190 ae an affirmative defense in
ite Answer, under Rule 15(b) of the Hawai Rules of
Civil Broceas
‘rae immaterial. becaus tried by the
Caprese of implied coneent of the parties
In challenging the aforementioned COLe on appeal,
Plaintiffs maintain that Act 190 is an affirmative defense and
argue that, because the state failed to raise Act 190 in ite
answer to the complaint, the State’s reliance on the act is
untimely. In response, the State alleges that Plaintiffs’
arguments mst be rejected because the State first raised the
applicability of Act 190 in opposition to Plaintiffs’ motion for
summary judgment, filed octeber 23, 2000, and that, therefore,
there was no prejudice to Plaintiffs by the state's filing of its
motion for judgment on the basis of Act 190.
Act 190 establishes the state's duty to warn of
dangerous natural conditions in the ocean. Duty is the first of
the four well-established elements of a claim for relief founded
on negligence; to wit:
-22-
(2) Aduty or obligation, recognized by
requiring the defendant to conform to a cez!
Conduct, for the protection of others against unreasonable
Fiske;
(2) fa] failure on the defendant’s part co conform to
the standard required: a breach of the duty;
(3) [a] reasonably close causal connection between the
conduct and the resulting injury; and
(4) fa}etual lose or damage resulting to the interests
of another,
Dos Parents No. 1 v. State, Dep't of Educ., 100 Hawai'i 34, 68,
58 P.3d 545, 579 (2002) (quoting Dairy Road Partners v. Island
Ins. Co., 92 Hawai'i 396, 419, 992 P.2d 93, 114 (2000)) (emphasis
added) .
As discussed more fully infra, Act 190 establishes that
the state (1) has a duty to warn of dangerous conditions in the
ocean adjacent to a public beach, but (2) has no duty to warn of
dangerous natural ocean conditions on beach accesses, coastal
accesses, or in other areas that are not public beach parks. In
the context of this case, Act 190 essentially negates an element
of Plaintiffs’ negligence action, i.e., duty. “A defense is not
affirmative where it ‘merely negates an elenent of the
plaintiff’e prima facie case.’" Hadar v. Concordia Yacht
Builders, Inc., 886 F. Supp. 1082, 1089 (8.D.N.¥. 1995) (quoting
Marino v. Otie gna'a Corp., 839 F.2d 1404, 1408 (10th Cir.
1988)). In other words, *[bJecause the alleged lack of duty
would merely negate an element of the plaintiff's claim, it is
not appropriately considered an affirmative defense." Etienne v.
Wal-Mart Stores, Inc., 197 F.R.D. 217, 221 (D. Conn. 2000); see
also Yroegh v. J &M Forklift, 651 N.E.2d 121, 126 (I11. 1995)
(The absence of duty is not an affirmative defense. It attacks
-23-
the legal sufficiency of the plaintiff’s claim. Rather than
giving color to the cause of action, it negates one of the
action’s basic elements." (Citation omitted.)).
Moreover, “lack of duty” is not one of the enumerated
required to be affirmatively pled pursuant to HRCP Rule
(0) ;* nor does the "defense" of lack of duty fall under the
residual clause of Rule 8(c), which includes as an affirmative
defense “any other matter constituting an avoidance or
affirmative defense." HRCP Ryle B(c). Plaintiffs’ argument is,
therefore, without merit. Accordingly, we hold that COL No. 99
is correct. Assuming this court agrees, the validity of COL No,
101 need not be addressed inasmich as it was rendered on the
yumption that Act 190 is an affirmative defense.
2, Applicability of act 190
Plaintiffe challenge the following three cole made by
the trial court regarding the applicability of Act 190:
103. As set forth in the plain language of Act 190(e),
Defendant state dose not have = duty to warn of
dangerous natural conditions 1n the ocean on beach
accesses, coastal accesses, or in areas that are not
public Beach parke
aos. Act 190 limes Defendant state's duty to warn of
Gangerous natural conditions, specifically shore
breaks and strong currents ih the ocean, to situations
When these Scean conditions occur aajacent to public
Beach parks operated by Defendant St
* mace Rule 6(c) provides in pertinent part:
In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption
Of risk, contributory negligence, discharge in bankruptey, duress,
estoppel, failure of consideration, fraud, illegality, injury by fellow
jervant, laches, License, payment, ‘release, res judicata, stacuee of
Frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense.
-24-
106. Under Act 190, Defendant state did not have 2 duty to
warn Plaintifés ef dangerous natural conditions in the
Scean, specifically the shore Dresk, the strong
Current near the landing, and the high surt abutting
the Ke'anse Landing.
Plaintiffs allege that these COLs are wrong because the language
of Act 190 § 2(e) is not plain, but ambiguous in scope
Alternatively, they argue that, assuming arguendo that the
language is plain, it does not apply in the present case. The
State counters that “Act 190 unequivocally relieves the state of
any duty to warn of dangerous natural conditions in the ocean in
areas that are not public beach parks," and, even assuming
arguendo that Act 190 is ambiguous, any distinctions between
natural and man-made structures was not intended by the
legislature to be included in Act 190.
Ae previously stated, section 2 of Act 190 states:
(a) The state or county operating a public beach park shall
have a duty to warn the pubite specifically of dangerous
Shorebreak or strong cusvent in the ocean edjacent 0 a
public Beach park if these conditions are extrenaly
Sangerous, typical for the specific beach, and if they pose
O'rlek of ‘serious injury or death
(ej Weither the state nor 2 county shall have a duty to warn
on ‘coastal at
‘not public Beach parks of dangerous natural conditions in
the ocean.
(2) Neither the State nor any county shall have a duty to
"rn of dangerous natural conditions in the ocean other than
Provided in this section.
1996 Haw. Sess. L., Act 190 § 2 at 435 (emphases added).
Based on the plain language of the act, section 2(a)
applies solely to “public beach parks.” Plaintiffs and the state
agreed that Ke'anae Landing is not a public beach park and that
Ke'anae Landing does not fall under the jurisdiction of the
Division of State Parks. To the extent COL No. 104 tracks the
-25-
language in section 2(a), COL No. 104 reflects the correct rule
of law and, thus, should not be overturned.
Plaintiffs next argue that section 2(e) does not apply
because “ocean conditions were not the sole danger to Plaintiffs
and the decedents; the conditions of Ke'anae Landing itself were
Gangerous, which are not dangerous natural conditions in the
Section 2(e) of Act 190 plainly states that the state
(and counties) shall not have a duty to warn of “dangerous
eal
natural conditions in the ocean" at “beach accesses, co!
accesses, or in areas that are not public beach parks.”
Plaintiffs, however, maintain that section 2(e) ig ambiguous in
scope because it is unclear to what extent section 2(e) abrogates:
the “Littleton rule” and the “Richardson rule* with respect to
the state.
In Bixmingham v. Fodor's Travel Publications, inc., 73
Haw. 359, 833 P.24 70 (1992), this court reaffirmed the rule
enunciated in Littleton v. State, 66 Haw. 55, 656 P.2d 1336
(1982), with respect to the state’s common law duties as the
omer and occupier of the ocean water. As this court explained
in Bixmingham, the Littleton rule is that the state,
fas the omer and occupier of the ocean water and all the
Beach area up to the high water mark adjacent to @ municipal
beach park, does not ove a duty to persons injured as a
result of water-related activities, sinless che "facts are
Sinilar to Agate (v. Matauda, 55 Haw, 394, 519 P.24 1240
(3974)], or analogous thereto.” To determine whether there
are facts sinilar to Agate, the court must determine: (3)
ing the injury was a dangerous
inmacural, ‘avea of the water-related
activity; and (2) whether the state had actual or
constructive knowledge of the condition. If the court
-26-
determines both that a dangerous unnatural condition existed
Gna chat the State bad actual or constructive knowledge of
the condition, then the State has a duty to warn of the
Sondicion by taking whatever measures, if any, are
Secsonably available to rectify and prevent the condition,
Bixminchan, 73 Haw. at 378, 833 P.24 at 80 (emphases in
original). Generally, under the Littleton rule, 2 duty to warn
would arise only if (1) a dangerous unnatural condition caused
the injury at issue and (2) the State had actual or constructive
notice of the condition. Whereas the Littletun rule addresses
unnatural conditions in the ocean. Ac* .90, § 2(e) addresses
natural conditions in the ocean, Thus, the Littleton rule is
inapplicable in the context of the instant case. It is
undisputed that the ocean waves were a cause of the decedents’
deaths. As this court haa previously stated, ‘{a] wave is 3
naturally occurring phenomenon of the ocean,” and, by its very
nature, it “cannot be an unnatural condition." Id, at 379, 833
P.2d at 80.
‘The Richardson rule, which is set forth in Richardson
v. Sport shinko (Waikiki Corp.), 76 Hawai'i 494, 680 P.2d 169
(1994), arises from this court’s decision in Corbett v, AOAO of
2 Bayview nts, 70 Haw. 415, 772 P.2d 693 (2989). in
Corbett, this court announced the following rule with respect to
landowner liability:
{212 a condition existe upon the land which poses an
Unreagonable risk of har to persone using the lané, then
the possensor of the land, if the possessor knows, or should
have known of the unteasonable risk, owes a duty to the
persone using the land to take reasonable steps to eliminate
Phe unreasonable risk, of adequately to warn the users
against it
-27-
Corbett, 70 Haw. at 417, 772 P.2d at 693. Under the State Tort
Liability Act, the State is liable “in the same manner and to the
same extent as a private individual under like circumstances.”
Hawai'i Revised Statutes (HRS) § 662-2 (1993). Thus, under the
Richardson rule, the state, as a landowner, owes a duty to
exercise reasonable care when (1) a condition poses an
unreasonable risk of harm and (2) the State knows or should know
of the unreasonable risk. If both prerequisites are met, then
the state‘s duty is to (1) take reasonable steps to eliminate the
unreasonable risk or (2) adequately warn users against the risk.
As previously indicated, the State owns the land upon
which Ke'an
Landing is located. Moreover, section 2(e) of Act
190 imposes no duty upon the state to warn of dangerous natural
soastal accesses, or in
" (Bmphasia added.) By
ocean conditions at “beach acce:
areas that are not public beach park
arguing in their opening brief that, “{hlad the state not
constructed a pathway and a stairway leading to a platform at the
ocean's edge, there would be no access to the ocean at this
location" (emphasis added), Plaintiffe essentially concede that
Ke'anae Landing constitutes a “coastal access.” Inasmuch as Act
190 controls, we reject Plaintiffs’ arguments with respect to the
Littleton and Richardson rules. Accordingly, we hold that the
trial court correctly concluded that Act 190 relieves the state
of any duty to warn Plaintiffs of any dangerous ocean conditions
at the Ke'anae landing area.
-28-
3, The Trial Court’s Conclusion that Act 190 Relieves
The state of Any Duty to Warn of the “Extremely
Dangerous” Ocean Conditions at Ke‘anae Landing
on appeal, Plaintiffs agree with the trial court’s
pumevous FOPs and COLs that the ocean conditions at Ke'anae
Landing on January 30, 1997, were “extremely dangerous.”
plaintiffs, however, argue that COL No. 110 is contrary to
Hawai'i) law. Specifically, Plaintiffs contend that:
pefendant State, as owner and occupier of {7 Ke'ana
Detendant Srtcee of State property abutting the ocean, oved
Landing. ee piaincités of extremely dangerous conditions
gn cuey EO En gich were: (2) not known oF obvious £0
1 ee cf ordinary intelligences and (2) im the exercise oF
persone, of Cree aught to have been known to the occupier.
plaintiffs claim that thie court, in Exiedrich vi
pepartment of Transportation, 60 Haw. 22, S86 7,24 1037 (2978),
held that “landowners -- government landowners in particular --
have a duty to warn of or protect against open and obvious
dangers that are extrenely dangerous." The state argues that the
common law principles relied upon by Plaintiffs were preempted in
Hawai'i by the enactment of Act 190.
As a preliminary matter, we note that Plaintiffs have
misstated the holding in Friedrich. Exiedrich merely erates
that,
(wihere the governsent maintains land upon which the public
(ylbore £05 ng entitied co enter, it say reasonably assume
are invited S0¢ fhe pusiie will not be harned by known oF
EbaE Mengergers which are ot extreme, and which any
obvious, dangers on exereieing ordinary attention, perception,
remtondeliigence could be expected tO avoid.
Jaa at 36-37, 586 P.2d at 1040 (citation and internal quotation
marke omitted). Although Exiedrich did not decide whether
Hawai'i law imposes @ duty to warn of obvious but extrene
-29-
Kaczmarcayk v. City and County of
Honolulu, 65 Haw. 612, 656 P.2d 89 (1982), held that an occupier
dangers, this court
of land fronting the shoreline of the ocean has
4a duty to warn users . . . of extremely dangerous conditions
fn the ocean along its beach frontage which were not known
oF obvious to persons of ordinary intelligence, and which
Sere known or in the exereiue Of reasonable care ought £0
have been know to the (occupier)
Id. at 615, 656 P.2d at 92. COL No. 110 appears to track thie
court's holding in Kaczmarcavk.
Act 190 imposes a similar limited duty to warn of ocean
conditions that are extremely dangerous. As previously stated,
section 2(a) of Act 190 provides:
‘The state or county operating a public beach park
shall have a duty to warn the public specifically of
Gangerous shorebreak or strong current in the ocean adjacent
to a public beach park if these conditions are extremely
dangerous, typical for the specific beach, and if they pose
a'risk of serious injury or Geath
1996 Haw. Sess. L. Act 190, § 2(a) at 435 (emphasis added).
Under the plain language of section 2(a), the State is required
to warn of “extremely dangerous" ocean conditions (1) that occur
at public beach parks, (2) if these conditions are typical for
the specific beach, and (3) if they present a risk of serious
injury or death. In the present case, inasmuch as Ke‘anae
Landing is not @ public beach park, the state did not have a duty
to warn of any “extremely dangerous" ocean conditions at Ke'anae
Landing. Moreover, in promulgating Act 190, the legislature
expressly provided that the State and counties are not subject to
any other duty to warn of dangerous natural ocean condition:
“other than as provided in [Act 190.1" 1996 Haw. Sess. L. Act
-30-
190, § 2(f) at 435 (emphasis added). Thus, Plaintiffs’ argument
that the State has a common law duty to warn of “extremely
dangerous” ocean conditions at Ke'anae Landing is without merit.
To the extent that Exiedrich and Kaczmaxczyk may be read as
conflicting with the legielature’s decision to limit the state
and counties’ duty to warn of “extremely dangerous conditions” at
only public beach parks, we believe that Exiedrich and
Kacumarczyk are superseded by Act 190. Accordingly, we hold that
the state, as the owner and occupier of Ke'anae Landing and its
surrounding ocean water, did not owe a duty to Plaintiffs to warn
them of the extremely dangerous ocean conditions at Ke‘anae
Landing.
4. The Trial Court’s Findings and Conclusions that
the Ocean Conditions at Ke'anae Landing Were Open
and Obviously Dangerous
‘The trial court made numerous FOFs and COLs regarding
the rough, open, and obvious ocean conditions at Ke'anae Landing.
With respect to these Fors and COLe, Plaintiffs essentially argue
that the evidence clearly shows
that Plaintiffs arrived at Ke'anae Landing during # Lull
period, in which there were no vaves and the ocean appeared
Pelatively cal. ‘thus, even if there were openly and
Obviously rough waves at Kelanae Landing at any other time
Guring the day, Plaintiffs aid not see then.
However, as stated earlier, Act 190 supersedes Kacmarcavk’s
holding with respect to the State and counties’ duty to warn
users of extremely dangerous conditions in the ocean along its
beach frontage (1) which were not known or obvious to persons of
ordinary intelligence, and (2) which were known or in the
<31-
exercise of reasonable care ought to have been known to the State
or county. Inasmich as Act 190 eliminates the need to determine
whether ocean conditions were not known or obvious to persons of
ordinary intelligence, the trial court’s FOFs and CoLs with
respect to the open and cbvious nature of the ocean conditions
ry, but nevertheless not clearly erroneous or
wrong.
5. The Trial Court's Pindings with respect to Prior
Drowning Incidents Occurring at Ke'snae Landing
Prior to January 30, 1997
Plaintiffs allege that the trial court impliedly found
that the State did not have notice of any dangerous conditions at
Ke‘anae Landing, based on FOF Nos. 9 and 10, which state:
9. There was no evidence that any drownings occurred at
Ke'snae landing pricr to January 30, 1987.
10, There was no evidence that the State was aware or
should have been aware of any drownings or near”
Gromings occurring at Ke'anse Landing prior to
Sanuary 30, 1957.
on appeal, Plaintiffs assert that they
ere got roautred to prove that the State had any notice of
the dangers at Ke'anee Landing because
Hhous vary dangere. ‘bven if thoy were Foqulted to prove
notice, they were fot required to prove actual notice
Piaintitfe proved that the deate bad constructive notice of
the dangers at the landing because the state knew how ehe
public used the lending and
tions yf theresore,
fave aintained the site to make it reasonably safe for it
intended use, Last, the State had constructive notice that
[therel were prior dromings st Ke'anae Landing, ‘and even if
it did not, it needed co have constructive knowleage only of
the dangers at the site, not of whether the exact sane
injury had occurred there before
The State should
(Emphases added.) Although Plaintiffs argue that the state
“created the dangerous conditions that caused the events of
Uanuary 30, 1997" (emphasis added), they fail to define exactly
-32-
what “dangerous conditions" the State had created. The only
conditions mentioned by Plaintiffs in their challenge to FOF Nos.
9 and 10 are the “ocean conditions." However, Plaintiffs surely
could not have intended to assert that the state somehow created
the hazardous ocean conditions. It appears that Plaintiffa may
be attempting to argue that the man-made conditions at Ke'anae
Landing, i.¢., the concrete platform areas and stairway, wer
dangerous. such argument is similar to their contentions
regarding the risks associated with the landing area itself. See
discussion infra
Because section 2(e) of Act 190 does not impose any
duty on the State to warn of dangerous natural conditions in the
ocean at coastal accesses, beach accesses, or in areas that are
not public beach parks, the trial court's FOF Nos. 9 and 10 were
unnecessary, but nevertheless not clearly erroneous.
c. The ed re ASS: aw nd
Inaelt
1. Plaintiffs’ Claim that the State had a Duty to
Warn of the Conditions Associated with the Landing
Area Itself
Plaintiffs submit that, under the Richardson rule, the
State, as the owner and occupier of Ke'anae Landing, had a duty
to Plaintiffs to take reasonable steps to eliminate unreasonable
risks or warn them against the risks associated with the landing
area itself, The State argues that, if,
as Plaintiffs urge, Act 190 de interpreted such that it does
because Ke'anae Landing vas a
lute would be inapplicable under
uation, Significantly, under Plaintiffs’
srpretation, it could be argued in almost. any
-33-
situation involving a drowning that the natural ocean
Conditions were not the sole proximate cause, but that @
beach or ocean access wae a contributing factor, and chat
Kot 190 therefore should not apply.
In response, Plaintiffs assert that “[t]he court was
+. required to bifurcate the State’s duties between the duty
to warn of dangerous natural conditions in the ocean[] and the
duty to warn of or protect against the dangers of Ke Landing
itself. Act 190 protects the State only against the former.”
‘The trial court specifically found in FOF No. 17 that
“the landing and surrounding area was neither defective nor
dangerous.*? Plaintiffs assert that FOF No. 17 ia: (2) contrary
to FOF No. 86 and (2) contrary to the substantial evidence in the
record. FOF No. 86 states
According to Dr. Grigg, if a person was walking down the
Landing avea, thet person would see the landing se it existe
fand that there was ho guard railing. Dr. Grigg further
Stated that 2 person would also sce that there was nothing
fo protect him or ner if that person were at the Botton of
the landing.
Plaintiffs submit that, *[tlo the extent that FOF 66 implies that
the dangerous conditions at Ke'anae Landing were open and
obvious, it is contrary to FOF 17." Plaintiffs algo argue that
they presented evidence at trial that there were dangerous
conditions at the landing area itself and that the State failed
to eliminate those risks:
> For to. 27 states, in ite entirety:
‘The Court finds that the parking area adjacent to {] Fe'anae
Landing ie not a state-naintained parking lot, but a small
dirt turn off where vehicles can pull off the road or make
U-turas; ‘the court further finde that the landing-and
aUErOUIding area was neither defective nor dancersus.
dea.)
(imphasie
o34-
br. Richard Grigg testified that 1f the state did sot wish
fo erect warning eigns, it could eliminate the rieke of
Saves sueeping over the lover platform ay restricting access
Thereto br removing the structures. noth Me. [Herbert]
Bogert and urs (Patrick) Durkin (Piaintifts’ expert
Witnesses] testified a to how Ke'anae Landing is dangerous
na what the state could do to eliminate those dangers, auch
railings, barriers, cables, and demolition... . (tlhe
fe intended for Neghal to ee the lending just ashe was;
Jr such use was dangerous co nim and others. The
State had superior knowledge of this danger, yet i did
hothing fo elisinate the risk, although it could have easily
done 50,
(citations to record omitted.)
The State asserts, inter alia, that “there was
substantial contradictory evidence, including but not limited to
the court's own site inspection conducted pursuant to {]
Plaintiffs’ request.? Plaintiffs’ challenge to FOF No. 17 is
without merit.
As this court has noted, even where testimony as to
particular facts ie uncontradicted, “questions of fact always
involve a question of credibility to be resolved by the trier of
facts." Siko v. Seauirant, 51 Haw, 118, 129, 452 P.2d 447, 448
(1969). This court must, therefore, “generally accept the
determination of the court which had the opportunity to observe
the deneanor of the witnesses during the direct and cross-
examinations." Id, at 119-20, 452 P.2d at 448, Moreover, the
admissibility and weight to be given to expert testimony dealing
directly with an ultimate question which the trial court, as the
+ the state algo mentions that the deposition testimony of Plaintiffs’
expert, Herbert Bogert, cannot be considered by the trial court because his
Seposition was never received into evidence. Although the index to the record
Of appeal shows that Bogert’s deposition was not admitted into evidence, a
form affixed to Bogert’s deposition itself states that his deposition was
fasiteed into evidence on Auguet 3, 2001, by the clerk of the trial court.
o35-
trier of fact, was required to decide is ordinarily left to the
Giscretion of the trial court. Exiedrich, 60 Haw. at 38, sas
P.2d at 1041. This court's analysis in Friedrich is particularly
sDluninating:
We need not consider vhat limitations may exist on the
freedom of a trier of fact to reject uncontradicted expert
testimony. "Here the testimony offered by [plaintitf-
appellant) went only to the question whether a guardrail or
s'warning sign was necessary to nake the pler reasonably
‘Opinion of iplaintitf-appeliant]'e
Superts on this issue desir directly with an ultimate
ourt was required to decide as the
sid that such testimony
Aging, 56 Haw. 135, 147-38, 531 7.20 648, 657-56 (1975)
Rithough the testimony was admitted by the trial court, ‘the
Weight to be accorded co it was clearly to be determined by
the court. Ne conclude that” (plainti#f-appellant)'s
Challenges to the findinge of Fact are without mere
Id, at 38, 586 P.2d at 1042
Likewise, in the present case, the trial court, as the
trier of fact, was faced with the question whether railings,
barriers, cables, and/or demolition of the landing were necessary
to make Ke'anae Landing reasonably safe for visitors. Implicit
in the trial court’s finding that the “landing and surrounding
area was neither defective nor dangerous” is the trial court's
apparent belief that any renedial modifications to the landing
area, including denolition, were not necessary. The trial
court’s finding is premised upon its own viewing of Ke'anae
Landing and several pictures exhibiting the conditions of the
landing area seconds before Meghal was seen in the ocean.
Accordingly, there is substantial evidence to support the trial
court's finding that the landing area was neither defective nor
dangerous. see State v. Pauline, 100 Hawai'i 256, 375, 60 P.3d
-36-
306, 325 (2002) (holding that a jury view, whether by @ jury oF @
judge as the trier of fact, constitutes independent evidence)
hue, we hold that the trial court's finding that the landing
area was neither defective nor dangerous was not clearly
erroneous.
2. plaintiffs’ Claim Alleging the Failure of the
Beate to Protect Plaintiffs Against the Alleged
Dangers of the Landing Area Itself
on appeal, Plaintiffs argue that FOF No. 3 is
erroneous. FOP No. 3 states in relevant part: “Plaintiffe filed
their First Anended Complaint against Defendant state on May 6,
iss, alleging that Defendant state had a duty to warn of
dangerous ocean conditions at {] Ke'anae Landing.” Plaintiffs
contend that this finding is erroneous “ro the extent that it
Qieregarde Plaintiffs’ claim that the state failed to protect
then from the dangers at Ke'anae Landing.” Plaintiffs argue that
chey asserted clains for both the State's failure to warn of
unreasonable risks and its failure to eliminate those risks, and,
as a result, the trial court failed to enter any FOP or COL with
eeopect to Plaintiffs’ “failure to eliminate siske* claim. Thus,
plaintiffs submit that the trial court erred when it entered
tinal judgnent as to all clains in favor of the State.
tn response, the State argues that Plaintiffs failed te
prove that the landing area itself was unreasonably dangerous.
based on the analysis provided supra, we agree.
the allegation in Plaintiff's amended complaint at
igsue here specifically stated:
o37-
[oln or before January 30, 1997, knew, or in the
exercise of reasonable care ahould have knows, that wave,
Mater or other aquatic conditions of or in the Pacific ocean
Adjacent £0,
dangerous to vie
Gecedente] ; further, 2
failed to adequately warn ot protect plaineit#s or any of
‘khen,ox_ others, of or fron the aforesaid dangerous aquatic
‘sonditions
(Bmphasis added.) Plaintiffs, on appeal, incorrectly
characterize the claims they alleged in their complaint
Plaintiffs’ complaint alleged that the defendants failed to
adequately protect plaintiffe from the “aforesaid dangerous
aguatic conditions." (Emphasis added.) Inasmuch as “aquatic*
means “living or growing in water,” Plaintiffs actually alleged
that the defendants failed to protect then from water-related
conditions, not the man-made conditions of the landing area
itself, as they argue on appeal. The Random House College
Dictionary 67 (1st ed. 1979)
Additionally, the trial court concluded that ‘Act 190
relieves the Defendant state of any liability to Plaintiffs.»
COL No. 107. on appeal, Plaintiffs argue that, although Act 190
does relieve the State of its duty to warn Plaintiffs, it does
ot relieve the State of its “alternate duty under common law
premises liability ‘to take reasonable steps to eliminate the
unreasonable risk.’* However, the landing area itself was found
to be neither defective nor dangerous, and, as discussed supra,
such finding was supported by substantial evidence.
Consequently, we hold that FOF No. 3 is not clearly erroneous and
that COL No. 107 is correct.
-38-
Plaintiffs maintain that FOF Nos. 84 and 87 and COL
Nos. 108 and 113 are erroneous and/or wrong because the trial
court did not consider the ‘undisputed evidence that Ke'anae
Landing contributed to the decedents’ deaths." Essentially, the
trial court concluded that it was the “extremely dangerous ocean
conditions which caused the deaths of the decedents.” Plaintiffs
argue that the trial court’s findings and conclusions are
“contrary to Hawai'i law on causation." In support, Plaintiffs
assert that: (1) but for the unnatural landing area, *Neghal
would not have been standing where a wave could sweep him out
into the ocean"; and (2) ‘one cannot see the lower platform at
Ke'anae Landing until he . . . moves almost all the way down the
pathway. . . . Thus, anyone who has never visited the site would
not know that the lower platform exists, and would not know that
a wave could sweep over it, unless he . . . is on or near the
lower platform at such a discreet moment in time.” Plaintiffs
submit that, because Ke'anae Landing itself ‘was a substantial
factor contributing to Meghal’s death," Act 190, § 2(e) does not
apply to the instant
In reaponee, the State contends that Plaintiffs raise
‘irrelevant argunenta on the issue of causation.” The state also
argues that Plaintiffs have no evidentiary support for their
assertion that the landing area itself was dangerous. As
previously discussed, the State, as the owner and occupier of
-39-
Ke'anae Landing and its surrounding waters, did not owe any duty
to Plaintiffs. We, therefore, need not reach the issue of
causation inasmuch as Plaintiffs have failed to meet one the four
essential elements of negligence, i.e. duty. See Takavana vi
Kaiser Found. Hosp., 82 Hawai'i 486, 498-99, 923 P.24 903, 915-16
(2996) (stating that in order for a plaintiff to prevail on a
negligence claim, the plaintiff is required to prove all four of
the necessary elements of negligence: (1) duty; (2) breach of
duty: (3) causation; and (4) damages) .
B, Various Other Findings Made by The Trial Court:
Finally, Plaintiffs argue that the trial court nade
numerous other erroneous FOFs, As discussed below, their
contentions are without merit.
First, Plaintiffs allege that FOF Noe. 21, 22, 24, and
25 are erroneous because these findings rely on Exhibit 8-7,
which was never admitted into evidence. Plaintiffs’ argunent is
without merit. The trial court’s exhibit list clearly indicates
that Exhibit S-7 was admitted into evidence on July 17, 2001, at
10:02 a.m.
Second, Plaintiffs challenge FOF No. 35, which states:
“It is unknown how Megha! Shah entered the water.” Plaintiffs
allege that this finding is erroneous because “the state never
Gisputed Plaintiffs’ assertion that a wave swept Meghal into the
ocean.” The State maintains that not only did Plaintiffs not
prove that a wave swept Meghal into the ocean, Dewal (Meghal’s
wife) testified that she was unsure how Meghal entered the water:
-40-
° defense counsel]: [W]hen you tured around, Meghal
wan gone?
a: By Bewel Shah]: Yeah. He was on the -- he was down
there:
@: Excuse ne. What I am referring to is after the
Splash, and you turned -- and you turned your back,
ready gone?
Q:) * You later learned he had -- he was in the water? You
sd later?
a .
(emphases added.) Based on Dewal’s testimony, there is
substantial evidence to support the trial court’s finding that it
was unclear how Meghal entered the water. Sea In xe Jane Dos,
Bornon June 20, 1995, 95 Hawai'i 163, 196-97, 20 P.3 616, 629-
30 (2001) (noting that testimony of a single witness, if found
credible by the trier of fact, suffices as substantial evidence
to support an FOF).
Third, Plaintiffs claim that FOF No. 26 is erroneous
because there is no evidence in the record to support it. FOF
No. 26 provides in pertinent part: “The Georgia Group then
stopped at the Ke'anae Arboretum, where . . . Meghal Shah
spontaneously dove into a foreign pool and invited the others to
Join him; no one did. The Ke'anae Arboretum is located just a
few minutes from [] Ke'anae Landing.” It is unclear from the
record whether Meghal did dive into a pool at Ke'anae Arboretum.
However, even if the trial court’s finding is found to be clearly
erroneous, Plaintiffs fail to argue how this finding, if
erroneous, affected the outcome of the trial court’s decision.
See HRS § 641-2 (1993) (No judgment, order or decree shall be
wane
reversed, amended or modified for any error or defect unless the
court is of the opinion that it has injuriously affected the
substantial rights of the appellant.”); Torres v. Torres, 100
Hawai'i 397, 412, 60 P.3d 798, 813 (2002) (noting that in order
for a court’s erroneous finding to constitute reversible error,
appellant must indicate how the erroneous finding affected the
outcome of the trial court's decision).
And, lastly, Plaintiffs dispute two FOFe with respect
to Bobo’s testimony, FOF Nos. 68 and 70 provide:
68. According to [Bobol, on January 30, 1997, he had been
Gorking on is truck and sav that the ocean conditions:
hear his hone were rough. (Bobo) testified that the
ough ocean conditions existed from the moraing hours
and that he could hear the waves breaking and ersehing
Spon the rocks ae the landing
70, ” inobo] estimated that the biggest waves he
Gay were at least 13 fect high
won hat
Plaintiffs contend that there is no evidence in the record to
support these FOFs. Again, even assuming these findings are
clearly erroneous, Plaintiffs fail to denonstrate how these
findings affected the outcome of the trial court's decision. see
HRS § 641-2; Torres, 100 Hawai'i at 412, 60 P.3d at 613.
F. Plaintiffs’ Remaining Contentions
Plaintiffs contend that: (1) they were not allowed to
introduce evidence of the state’s admissions that Ke'anae Landing
is dangerous; (2) they were not allowed to fully cross-exanine
the State’s witnesses; and (3) the State’s oceanography expert
was allowed to testify as to ocean conditions at Ke'anae Landing
on January 30, 1997, when such testimony went beyond the scope of
the expert's pretrial expert report. Having concluded that the
-42-
State did not owe any duty to Plaintiffs, we need not address
Plaintiffs’ remaining evidentiary contentions,
Iv. CONCLUSION
Based on the foregoing, we affirm the trial court’s
Noverber 21, 2001 final judgment in favor of the State.
On the briefs: Yor
Amold T. Phillips IZ, :
for plaintiffs-appellanta Bite Plane
Miriam P, Loui and Peuri COAL arb
Marcie C. L. Laderta,
Deputy Attorneys General,
for defendant -appellee
State of Hawai'i
Game Day bo
-43-
|
f5508b39-b4ec-459a-ac84-d273ca7485c6 | Vanstory v. State | hawaii | Hawaii Supreme Court | Laweeti
No. 26821
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
CHAD EVERETT VANSTORY, Petitioner-Appellant,
STATE OF HAWAI'I, Respondent-Appell
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(8.P.P. NO, 04-1~0011(2))
(By: Nakayana, J., for the court")
Petitioner-Appellant’s application for writ of
certiorari filed on October 23, 2006, is hereby rejected.
DATED: Honolulu, Hawai'i, November 22, 2006.
{FPR
FOR THE COUR’ fe one
4, Pen &
Lut CY obtee ore ( SEAL
Associate Justice &,
Vor ws
Chad Everett Vanstory,
Petitioner-Appellant pro se,
on the application
considered by: Moon, C.J., Levinson, Nakayama, Acoba, snd Duffy, 32.
|
2d35ce13-fb22-42c1-a5d0-aab9d01b1968 | State v. Russell | hawaii | Hawaii Supreme Court | No. 27324
IN THE SUPREME COURT OF THE STATE OF HAWAI'E
STATE OF HAWAI'I, Petitioner-Appellee,
N02 Nd 4-930 9002
CERTIORARI TO THE INTERMEDIATE COURT OF APPEBLS
(CITATION NO. 2075937)
ORDER ACCEPTING PETITIONER/PLAINTIFF-APPELLEE
‘STATE OF HAWAII'S APPLICATION FOR WRIT OF
SERTIORARI AND REVERSING THE INTERMEDIATE COURT
sOSITION ORDER
oF a . 2006 si
(By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ.;
Levinson, J., dissent'ing)
Petitioner/appellee state of Hawaii's application for
writ of certiorari, filed october 18, 2006, is hereby accepted,
and having considered the arguments advanced,
IT IS HEREBY ORDERED that, in light of thie court
recent opinion in State v. Ribbel, 111 Hawai'i 426, 142 P.3d 290
(2006), the sunmary disposition order, filed by the Intermediate
Court of Appeals on June 7, 2006, is reversed, and the April 22,
2005 judgment of the District Court of the Third Circuit, is
affirmed.
Honolulu, Hawai'i, December 4, 2006.
—&. 4 OS crayon
DATED:
az
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287e84e5-2be2-4c7c-9409-e2d964c279a2 | Mizukami v. Mizukami | hawaii | Hawaii Supreme Court | No. 26986
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
GLENN KIYOHIKO MIZUKAMI, Petitioner-Defendant-Appellant,
vs =i
DONNA EDWARDS MIZUKAMI, nka DONNA EDWARDS,” <3 5 2
Respondent-Plaintiff-Appellee. az * i
g
CERTIORARI TO THE INTERMEDIATE COURT OF APPEA!
(FC-D NO. 90-4214) a
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Nakayama, J., for the court’)
46
Petitioner-Defendant-Appellant’s application for writ
of certiorari filed on October 25, 2006, is hereby rejected.
DATED: Honolulu, Hawai'l, November 22, 2006.
FOR THE COURT:
Peat COSY asta or
Associate Justice
Glenn Kiyohiko Mizukani,
petitioner-defendant-appellant
Pro se, on the application
Moon, C.J. Levinson, Nakayama, Acoba, and Duffy, 39.
|
c53da266-585d-4d8d-b87a-2513d77c72b4 | Office of Disciplinary Counsel v. Peer | hawaii | Hawaii Supreme Court | No. 28162
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
oreice oF orscreLtNany counses, Petitsoner EH
JAMEELAH PEER, Respondent.
(00C 06-007-8347, 06-014-8354, 06-015-8355, 06-069-8409)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the record, it appears that (1)
Respondent Jameelah Peer is the subject of an investigation by
Disciplinary Counsel, (2) Respondent Peer has failed to cooperate
with Counsel's investigation, (3) Respondent Peer was served,
pursuant to Rule 2.12A(b) of the Rules of the Supreme Court of
the State of Hawai'i, with our October 6, 2006 order to show
cause as to why she should not be suspended from the practice of
law, and (4) Respondent Peer has failed to respond to our October
6, 2006 order to show cause as to why she should not be suspended
from the practice of law. Respondent Peer, having failed to
cooperate with Disciplinary Counsel's investigation and having
failed to comply with a lawful denand of this court is,
therefore, guilty of failing to cooperate with the disciplinary
investigation. Therefore,
IT IS HEREBY ORDERED, pursuant to Rule 2.12A of the
Rules of the Supreme Court of the State of Hawai'i, that
Respondent Janeelah Peer is suspended from the practice of law in
a3
this jurisdiction, effective immediately and until further order
of this court.
DATED: Honolulu, Hawai'i, December 8, 2006.
carole R. Richelieu, Gre
Chief blscipiinary
Gouneel, for petitioner .
Jameelah Peer,
Yespondent pro 50 Paste Co nature
wae
Caren £. Dadbgn +
|
806a06bd-89ce-4105-b6ea-ec9bf3b8e9a6 | State v. Vinigas | hawaii | Hawaii Supreme Court | LAW LIBRARY
iss Non FOR PUBLICATION 10 WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER
Wo. 26499
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAT'T, Plaintiff-Appellee, &) 3
RUDY VINIGAS, Defendant-Appellent. gS
bee 8
APPEAL FROM THE FIRST CIRCUIT COURT |”
(Crim, No. 03-1-0328) a 8
‘Levinson, Nakayama, and Duffy, J.,
and Acoba, J., dissenting)
(By: Moon, C.
‘The defendant-appellant Rudy Vinigas appeals from the
March 9, 2004 judgment of the circuit court of the first circuit,
the Honorable Sandra A. Simms presiding, convicting him of and
sentencing him for assault in the first degree in violation of
Hawai'i Revised Statutes (HRS) § 707-710(1) (1993) [2 lesser
included offense within the original charge, which was attempted
murder in the second degree in violation of HRS §§ 705-500 and
707-701.5(1) (19930).
on appeal, Vinigas contends that the circuit court
erred in: (1) advising the jury, in response to its
communication during deliberation, that it could not find him
guilty of assault in the third degree in conjunction with
“serious bodily injury”; and (2) refusing his proposed jury
instructions regarding (a) the lesser included offense of assault
in the second degree and (b) the defense of “protective force.”
upon carefully reviewing the record and the briefs and
having given due consideration to the arguments advanced and the
issues raised, we affirm the circuit court's March 9, 2004
+4 NOT FOR PUBLICATION IN MEST’S HAMAI'T REPORTS AND PACIFIC REFORTER +
judgment for the following reasons
(2) We detect no legally significant difference between
the two versions of the self-defense instruction.
Notwithstanding the fact that it nearly tracks the language of
HRS § 703-304(3) (Supp. 2001), the struck language (“A person
employing protective force may estimate the necessity thereof
under the circumstances as he reasonably believed them to be when
the force is used without retreating.”) mezely echoes the
principle that the jury must gauge the necessity of protective
force from the point of view of a reasonable person under the
instant circumstances, which was already conveyed to the jury
through the earlier admonition that “(t]he reasonableness of the
defendant’s belief . . . shall be determined from. . . the
defendant’s position under the circumstances.” The repetition
for which Vinigas campaigned might have imparted a trace of
additional clarity; nevertheless, we believe that the instruction
given was not “prejudicially insufficient, erroneous,
inconsistent, or misleading,” gee State v. Gonsalves, 108 Hawai'i
289, 292, 119 P.3d 597, 600 (2005) (internal quotation signals
omitted), and we must presume that the jurors heeded all
instructions, e.d., State v. Haanio, 94 Hawai'i 405, 415, 16 P.3d
246, 256 (2001), and accorded all of the instructions equal
emphasis regardless of the number of times they were repeated,
Seg Court's General Instruction No. 1 ("Do not give greater
emphasis to any . . . sentence . . . simply because it is
repeated in these instructions.”).
\No? FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER
(2) Inasmuch as the jury convicted Vinigas of the
greater offense of
jault in the first degree, any error by the
circuit court in refusing instructions regarding lesser included
offenses -- which we need not reach in the present matter -- was
harmless. See Haanio, 94 Hawai'i at 415-16, 16 P.3d at 256-87
(quoting State vs Holbron, 80 Hawai'i 27, 47, 904 P.2d 912, 932
(1995)). Therefore,
I7 18 HEREBY ORDERED that the judgment from which the
appeal is taken is affirmed.
DATED: Honolulu, Hawai", November 28, 2006.
on the briefs:
ctenen ruthie, Gtr
Salina Kanai Althof,
Deputy Public Defender, PaO aan
for the defendant-appeilant
Rudy Vinigas
Caren &. DiGi +
|
9ca72acf-106b-4d5d-b843-d77d572f033b | Captain Andys Sailing, Inc. v. Department of Land and Natural Resources, State of Hawaii | hawaii | Hawaii Supreme Court | LAW LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
00"
see
CAPTAIN ANDY’S SAILING, INC., a Hawai'i corporation,
Plaintiff-Aappellant,
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAAI‘Is
PETER T. YOUNG, Director of the Department’ of Land and Natural
Resources and Chairperson of the Board of Land and Natural
Resources, State of Hawai'i; MASON YOUNG, Acting Administrator,
Division of Boating and Ocean Recreation, Department of Land and
Natural Resources, State of Hawai'i; and DAVID PARSONS,
Administrator, Division of Boating and Ocean Recreation,
bepartment of Land and Natural Resources, State of Hawai‘i,
Defendants-Appellees.
No, 25387
MOTION FOR RECONSIDERATION
(CIV. NO, 02-1-0951)
20:8 Wy os
NOVEMBER 30, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
Plaintif£-Appellant Captain Andy’s Sailing, Inc.'s
motion for reconsideration of the opinion filed on October 26,
2006, is hereby denied.
Dennis Niles and William M.
Mckeon (of Paul, Johnson,
Park & Niles) for Plaintiff-
Appellant Captain Andy's .
Sailing, Inc. on the motion
|
94c90f36-0854-45ba-a916-55e574e2ca70 | Izuo v. Dias | hawaii | Hawaii Supreme Court | 2
At
Aas a
ee =
wo. 26160 aa
GARY Y. NISHIOKU,
Plaintiffs-Appellees-Respondents,
CLARENCE T, 1200, CECELIA M. 12U0,
and RENEE NISHTOKU,
JOSEPH DIAS, JR., Defendant-Appellant-Petitioner,
and
FIRST MAGNUS FINANCIAL CORPORATION dba CHARTER FUNDING,
an Arizona Corporation, JOHN DOES 1-10; JANE DOES 1-10; DoE
CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; DOE ENTITIES 1-10; AND
DOE GOVERNMENTAL ENTITIES 1-10, Defendants.
JOSEPH DIAS, JR., Counterclaimant,
vs.
CLARENCE 7. I2U0, CECELIA M. 1200, GARY ¥. NISHIOKU,
RENEE NISHIOKU, and LEROY BRILHANTE, Counterclaim Defendants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(Civ. No. 02-1-0556)
API
ont
(By: Levinson,
J., for the court?)
This court having considered the defendant-appellant-
petitioner/counterclaimant Joseph Dias, Jr.’s Novenber 13, 2006
application for a writ of certiorari and the response filed on
November 20, 2006 by the plaintiffs-appellees-respondents/
Cecelia M. Izuo,
counterclaim defendants Clarence 7. Izuo,
1 Reoba, and Duffy,
+ considered by: Moon, C.J, Levinson, Naka}
as
Gary Y, Nishioku, and Renee Nishioku, the application is hereby
rejected.
DATED: Honolulu, Hawai'i, December 11, 2006.
FOR THE COURT:
2 eRe
STEVEN H. LEVENSON
Associate Justice!”
on the application:
Gary Victor Dubin, for the defendant
appellant-pet itioner/counterclaimant
Joseph Dias, Jr.
Jay 7. Suemori and James P.
Dandar, for plaintiffs-appelle:
respondents/counterclaim defendants
Clarence T. Izuo, Cecelia M.
Izuo, and Gary ¥. Nishioku
|
2cab363c-4307-4a0d-a669-521aaec8db9c | In re Frederick | hawaii | Hawaii Supreme Court | no. 28161
al
IN RE: CAROL L, FREDERICK, Petitioner.
ORIGINAL PROCEEDING
95:8
ORDER
(By: Hoon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Carol L. Frederick's
Petition to Resign and Surrender License, the attached *
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirenents of ule 1.10 of the Rules of the Supreme Court
of the State of Hawai's (“RSCH"). Therefore,
17 8 HEREBY ORDERED that the petition is granted.
17 I8 FURTHER ORDERED that Fetitioner Frederick shall
return her original License to practice law to the Clerk of, this
court forthwith. The Clerk shall retain the original license as
part of thie record. Petitioner Frederick shall comply with the
notice, affidavit, and record requirements of subsections (a),
(b), (d), and (9) of RSCH 2.16. SCH 1.10(¢).
IT IS FINALLY ORDERED that the Clerk shall remove the
nane of Carol L. Frederick, aka Cercl L. Dailey, attorney number
3941, from the roll of attorneys of the State of Hawai'i,
effective with the filing of this order.
Novenber 14, 2006.
a
7 Gono, Oudiys Qe oN
DRIED: Honolulu, Hewa
aa
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eacd7ea3-7219-4ec8-914d-954c7a10a3c3 | Del Monte Fresh Produce | hawaii | Hawaii Supreme Court |
“++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
ove:
EDWARD C. LITTLETON;
DEL MONTE FRESH PRODUCE (HAWAII), INC.
STACIE SASAGAWA; GORDON REZENTES; and DIXON SUZUKI,
Appellants~Appellants,
AFL-CIO,
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 142,
Union-Appel lee-Appellee,
and
HAWAII LABOR RELATIONS BOARD; BRIAN K. NAKAMURA, Chairperson
CHESTER C. KUNITAKE, Board Member; and KATHLEEN
RACUYA-MARKRICH, Bord Member, Appellees-Appellees.
no. 27265 5
APPEAL FROM THE FIRST CIRCUIT couRT Alm
(CIV. NO. 06-1-0765) Buz. &
az =
NOVEMBER 14, 2006 sel
Be =
MOON, C.J., .LEVINSON, NAKAYAMA, AND DUFFY, Jd} °
s
WITH ACOBA, J.,/ CONCURRING SEPARATELY
OPINION OF THE COURT BY DUFFY, J.
Appellant-appellants Del Monte Fresh Produce (Hawaii),
Stacie Sasagawa, Gordon Rezentes, and
Littleton,
appeal from
Inc., Edward C.
(her
2008 final judgment of the Circuit Court of the
einafter, collectively, Del Monte]
the April 1,
aa
*** FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER
—EORPUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **
First Circuit,? affirming the Hawaii Labor Relations Board's
(HERB) ruling in favor of appellee-appellee International
Longshore and Warehouse Union, Local 142, AFL-CIO (h
einafter
HLMU or Union] in @ labor dispute arising out of the downsizing
fand relocation of Del Monte’s chilled and frozen fruit operations
facility in Honolulu. .
On appeal, Del Monte argues that: (1) the HLRB erred
in finding that Del Monte violated Hawai'i Revised Statutes (HRS)
§ 277-6(4) (1993) by refusing to bargain in good faith with the
Unions (2) the HLURB erred in finding that Del Monte interfered
with or discriminated against the Union, in violation of HRS $$
377-6(1) and (3), in an “inherently destructive” manner; and (3)
the HLRB’s remedial order, which, among other things, required
Bel Monte to award certain laid-off workers “enhanced separation
benefits identified in previous negotiations or the cash value
thereof,” was in violation of the HLRB's statutory authority.
As discussed below, we sffirm the circuit court's
rulings upholding the HLRE’s conclusion that Cel Monte committed
unfair lebor practices under HRS § 377-6(4), for failing to meet
ite bargeining obligation, and under HRS § 377-6(1), for
interfering with the exercise of guaranteed employee rights,
because there was sufficient evidence to support both charges.
The Menereble abr jer thie matter.
8S. Mekenna presided
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
However, we reverse the circuit court’s decision regarding HRS §
377~6(3) because the HLRB incorrectly interpreted the law,
applying an erroneous understanding of what activity can
constitute “discrimination.” Lastly, we hold that the HLRB has
broad statutory authority under HRS § 377-9(d) to craft remedies
for unfair labor practices, and that the remedy in this case was
not an abuse of discretion.
Therefore, we affirm in pert and reverse in part the
circuit court’s April 1, 2005 final judgment.
I. BACKGROUND
Facts
Del Monte Fresh Produce (Hawaii), Inc. grows and sells
whole pineapple and processed pineapple products. The company is,
part of a larger corporation, the Del Monte Fresh Produce
Company, which has headquarters in Coral Gables, Florida. At the
time this action arcse, Del Monte’s Hawai'i operations consisted
of three units: the O'ahu Plantation (hereinafter, Plantation],
where pineapples are grown and harvested; Kunie Processing and
Packing Operations unit, also known as Kunia Fresh Fruit
{hereinafter, KFF], where pineapples are packaged whole or
processed and made into concentrate juic 1e Wasakamilo
and
Henol
Chilled/Frezen Operation (hereinafter, HCFO), where
Pineapples are process:
dé into chilled pineapple products
“OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER °¢* _
‘The ILWU, Local 142 has been the exclusive bargaining
representative of Del Monte employees since 1945. The employees
are organized into three
parate bargaining units, which
correspond to the three Del Monte operations: Plantation, KFF,
and HCFO. Each bargaining unit has its own collective bargaining
agreement, with separate seniority systems within the unit. . In
addition to these Union employees, Del Monte employs “seasonal”
employees whose enploynent is not covered by the collective
bargaining agreement until they have worked 100 days for the
company, at which point they become “covered seasonal. ”?
Del Monte’s Plan to Relocate the HCFO Facility
In Septenber 2001, Del Nonte’s corporate parent decided
cate HCFO work to
nger, California. In March 2003, a
Gecision was mace to keep limited HCFO work in Hawai'i (for the
local market), but to transfer this work to the KFF concentrate
facility, closing the Waiskamilo HCFO facility.
On April 11, 2003, the company informed the Union of
these plans through a letter sent to the Union, HCFO employees,
and the Director of the Department of Labor and Industrial
Relations. In the letter, the company indicated that it would
ley off sixty-seven of seve!
y-seven HCFO enployees, effective
requis” employees
fered seasore]” werkere, while covered
oreere! © te fewer beretite then “reguli
FOR PUBLICATION IN WES!
HAWAF' REPORTS AND PACIFIC REPORTER,
June 30, 2003. The letter also stated that Del Monte had 154
vacancies at the Plantation and KFF facility to which all
displaced workers could apply.
On May 30, 2003, Del Monte posted vacancies for
fourteen HCFO positions that would work in the Kunia plant.
By June 2, 2003, Del Monte and its parent company’ had
finalized plans to merge operations at Kunia. Under this plan, a
downsized processing unit at KFF would be made up of fourteen
HCFO positions who would process pineapple and make concentrate.
Further, Del Monte wished to transfer two pezmanent KFF employees
eho had worked in concentrate into the new HCFO bargaining unit
at Kunis. The relocated HCFO employees would provide Limited
fresh fruit production in addition to operating the concentrate
plant, while the rest of the KFF employees wou!
return to the
Fresh Fruit operation.
Del Monte set July 1, 2003 as the date to have the HCFO
operations up and running in Kunis.
2. The Union Requests Information Regarding the Relocation
and Files an Unfair Labor Practice Charge with the
BLRB.
On April 22, 2003, the ILWU requested to bargain with
Del Monte o
¥ the decision to close the HCFO plan
and its
effect
At the same time, the Unicn requested information from
the company related to the decision to close the HCFO plant and
[FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *#*
—TTORIUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *¢* _
lay off, transfer, and reassign its employees as a result, as
well as a request for information related to the effects of the
closing. Del Monte responded by providing some information and
by engaging in effects bargaining.‘
On May 12, 2003, the Union filed an unfair labor
Practice complaint with the HLRB, alleging that Del Monte refused
to bargain collectively, refused to provide information, and
interfered with, restrained, and coerced its employees “in the
exercise of their Section 7 rights under the Act.“
In the second week of June 2003, the parties commenced
bargaining sessions concerning the effects of the closure,
including layoffs and benefits.
Del Monte and the Union Engage in Bargaining over the
Effects of the HCFO relocation.
‘The parties met on June 10, 12, 17, and 21, 2003. be
Monte’s bargaining committee met with the Union at the Union's
‘The parties dicpute the extent of De] Monte’
Union's information requests. ‘The
refuses to provide
the facili
responsiveness to the
‘chat white Del Monte:
sate regarding itt cecision to close
‘did provice other information and bergein ever effects
However, the’ HIRE cid! not cetermine whether Del Monte’? conavet Im response to
information requests war an unfair laber practice because it rected ite
Finding of = failure te bargain on ether evicence
HRS § 277-60), due ted
requested te
- sileoing thet
gaining egtecrent Like the
charge, the URE Gio net edceese this
foune other enpleyer viciaticns.
.
‘#** FOR PUBLICATION IN WEST'S HAWAI'] REPORTS AND PACIFIC REPORTE!
own hall making itself available for each of these sessions and
never refusing to meet with the Union.
At the first effects bargaining meeting, on June 10,
2003, the Union proposed the following:
(1) Enhanced severance benefits for laid-off HCFO
workers, consisting of two additional days of pay for each year
of service, with both lump-sun and installment pay options.
(2) Allowing the use of pre-tax severance benefits to
pay for extended medical coverage for laid-off workers.
(3) Extended housing for one month of each year of
service at current rental rates (in addition to the contractual
extension of one year).
(4) Various options for current HCFO employees:
(A) Using @ joint labor/managenent subcommittee to
determine the qualified laber pool from which each
retained bargaining unit position at HCFO Kunia
would be selected:
(B) Allowing employees who left prior to the
scheduled layoff date to receive full separation
benefits: and
(C) Permitting senior employees to elect
severance, bumping, or transfer into the new
two-week familiarization pericd,
fer to
Rules governing the t
roed unit:
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
—EDRIUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
(A) Retention of ali HCFO bargaining unit job
classifications at HCFO Kunia, with laid-off HCFO
employees retaining seniority righte;
(B) Giving laid-off HCFO employees an option to
suspend severance and retain recall rights for
future vacancies at the merged unit; and,”
(C) Transferring five HCFO employees into KFF, and
creating forty upgraded' regular KFF positions
over four years.
The parties caucused, and the Del Monte Conmittee®
Presented its initial position and responded to the Union
Proposal. Negotiations continued at the June 12, 2003 session,
where the Union began by asking for a complete response to its
Prior information requests and presented @ revised proposal.
At the June 17, 2003 session, Del Mente presented a
Package proposal, which the Union rejected. However, after
further negotietions, several tentative agreenents were reached,
subject to an agreement cn ell matters. The parties agreed to:
(2) en additionel one-half day of severence benefits for each
year of service for laid-off workers; (2) various pay-out options
for severance benefits; (3) an two months of medical
An upgrace us e KFF nent involves
noving an enpleyee fren “cover States,
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
coverage for affected employees; and (4) an additional month’ of
housing for each year of service. Furthermore, with respect to
the HCFO employee options after the closure, the parties agreed
to: (5) use of a joint lebor/management subcommittee to identity
the labor pool from which HCFO positions would be allocated:”
(6) termination benefits for employees who left the company ‘prior
to the scheduled layoff dates and (7) the right of senioé
employees to accept a job, elect severance, bump, or transfer to
the new position with » familiarization period.’ In exchange for
these proposals, Del Nonte sought the Union's agreement to:
(1) the transfer of two KFF concentrate employees to the HCFO
unit; (2) the transfer of three HCFO mechanics to the Plantation
unit; and (3) the withdrawal of the unfair labor practice
charges. The Union was willing to withdraw the pending charge
with the HERE if settlement wes reached. However, the Union was
not willing to make the cther concessions unless Del Monte agreed
to the Union's upgrade proposal.
4. The Final Bargaining Session and the June 21 Letter
At the June 21, 2003 bergaining session, Del Monte gave
the Union a written letter setting forth the company’s final
ing jobs be
1 hewever, added
nether eriterie, pursuant te Del Nonte's request
deter
gual
The ports
fer reeal
[FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **4
TL EOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *¢* _
offer. The letter offered two basic alternatives: (1) that the
Union agree to the tentative agreements that had been ri
ched as
of June 17, 2003, inctuding the transfer of two KFF positions
into the HCFO bargaining unit, and adding the condition that the
Union withdraw its pending untair labor practice charges: or
(2) that a1] HCFO employees be terminated,’ without any transfer
to KFF, and receive only pre-existing termination benefits under
the collective bargaining agreenent.! with respect to this
offer, the HLRE made the following findings of fact
38. On June 21, 2003 DEL MONTE’ S committee handed the
Union DEL HONTE’s final offer that spelled est the
consequences 1f the Union did not agree to the final
offer. “the firet half of the offer reflectes the
Tentative agreenents reached as cf June 31, 2009 but
alec regsirea the Union to witheraw the unfeir lebor
Practice complaints
19, Starting on page four of the fins! offer, DEL MONTE
13 the consequences if the Union rejected the
offer, if the Union aig net accept CEL MONTE’ s fine!
F the company planned to tersinate #11 HCFO
oyees with the exception of = couple of journey
employees who would be terminates after the
Glenantiing cf the MCFO at Wsiekanilo. The terminated
HCFO employees wcule receive cnly the terminstion
Denefits required under the collective bargaining
fone of the enhanced Henefite discussed
in eftecte barge Tt was a takenst-orsleavenit
Ercposition. DEL HOMIE intended to eapty out the
Bargeina Union's ecceptance of the
citer would inplenent the
consequences cn July 1, 2002 1f the Union did net
accept the effer by noon en Sone 36. The Union
Fejectes TEL MONTE’ effer ee ondew!
off ae of oune 30,
veer would be retained until all dlenantling work was
206:
hencenente discussed in pri
fe wculd be given es & lonp-eun payments
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
The letter also specified that if the Union did not
agree to the proposal, Del Monte intended to create two mechanics
Positions in the Plantation unit, create two jobs in the KFF
unit, temporarily transfer sone KFF employees to laborer
positions to assist with duties involving processing operations,
and “take other steps necessary to operate the relocated
operation” in compliance with applicable contract provisions.
Lastly, Del Monte stated that it “remain{ed] willing and able to
meet with the ILWU to discuss any further questions or concerns
concerning the terms and conditions of affected employees.”
5. The Aftermath and Subsequent Actions of the Parties
After the Union rejected Del Monte’s offer,
Negotiations were discontinued. During the week of June 23,
2003, a12 processing operations at Weiekamilo ceased and Del
Monte began trial runs in Kunia using HCFO employees selected
from the sign up lists. On June 30, 2003, Del Monte proceeded
with the downsized HCFO cperations. Rather than lay off all HCFO
employees, however, Del Monte transferred the fourteen senior
most employees who had signed up for the new job posting to
Kuna. The remaining fifty-five HCFO employees were laid off
Feason, Del Monte decided
on ples Tn the Jone
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and paid severance benefits as specified in the collective
bargaining agreement.
B. Procedural History
3. The HLRB Proceedings and Decision
As set forth above, the ILM first. filed an unfair,
labor practice complaint with the HLRB on May 12, 2003, which was
later superceded by an amended complaint on June 25, 2003. In
its second amended complaint, the Union alleged violations of HRS
$$ 377-€(2), (3), (4), (6) and (8). The BLRB held hearings on
June 27 and 30, July 1, 11, 22, 23, 28, and 31, 2003.
‘The HLRB issued its “Findings of Fact, Conclusions of
Law, and Order” on March 24, 2008. In @ 2-1 decision, the HLRB
ruled thet Del Monte violated HRS § 377-6(4) for refusing to
bargain," as well as HRS § 377-6(1) and HRS § 377-6(3)." The
‘The MUAB found that the decision te close the Maiakamilo facility
4 mandetory subject of Eargsining, eng therefore there was no fatlore
to bargain with reepect to that ce fs uae the sole point on whieh
Chairman Kathleen Racuye-Markrich concurred.
. 16 “Unfair labor prectices of employers,”
provides
-e labor practice fer en employer
cr ceezce the employer's
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HLRB did not address the Union's allegations of failure to
Provide information and contractual violations, having alr
dy
found a failure to bargain and discriminatory conduct on the
basis of Del Montes final offer. As such, the HLRE made the
following conclusions of law:
»
The Board concludes that the Employer's decision to
close the Waiskanilo facility and Feiceate the bulk of
ite operations te Sanger was not a mandatory subject,
cf brgaining so that ite failure to engage’ in
Regotisticns or provide infernation regareing the nove
Gig not constitute an unésir labor practice...
1é on the record, the Board concludes that the
conditions imposes Gn bargaining within the Exployer's
final offer were “so onerous oF unreasonable ae te
indicate bad faith.” The first half of the final
offer reflectes the tentative agreenents reached es of
Sune’ 17, 2003 ana requires the Union te witnersy the
unfair lator practice complaints. If the Unien dic
ot accept the final offer the company planes te
terminate 11 HCFO employees except a fev sourney
esployeer who would be terminated after t
Sienantling cf HCFO Melekenile. The terminated
eaployees would receive only the termination benefi
Fequired under the collective bargaining agreenent
ith none of the enhances benefite discussed in
effects bargaining. it was o take-steor-leavecit
proposition which vse intendec to enpty out the
Eargaining unit absent the Union's acceptance. DEL
MONTE cteted st uculd inplenent ‘the consequences on
Joly 2, 2003 if the union aid not accept the offer by
hoch oh lune 25ra-- The Board conclude: therefore that
DEL MONTE refuses to bargain in gecd f2ith with the
HIND and therefore viclaved HRS § 377-618).
‘The Boare concludes that DEL MONTE violated HRE § 377-
€(1) ene (3) By its innerently aestrvctive
ciscrininatory act of threstening to temanate all
Fenbere cf the BCT: clrected against
Sil bergeinine oni i least for the
exployeer whe
bees.
in in the Bergeinirg unit
Heprecenteeive:
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In support of its finding that Del Monte refused to
bargain in good faith, in violation of HRS § 377-6(4), the HLRE
said the following:
The Employer sinply promised to terminate all
bargaining unit members on three cays’ notice unless the
Unien capitulated to its terme and forfeited its rights to»
recress.. By emptying the ACFO bargaining unit of afl of ite
penbers the Employer would have satisfied ite bargaining
obligations by sinply destroying the bargaining unit. +s
This was perticvlerly insidious Because DEL MONTE
planned te Tetain the previourly promised HeFO jobs and
functions at Munie. Zt wold then create new positions,
combined positions doing former HCfO work (Boiler/suice,
operator and packaging machine operator], and then transfer
KEP exployees to labarer positions to do\the rest of they
former HCFO work. DEL NORTE sie planned to pest st the
Elantaticn the journey positiene sf hed planned to transfer
from HCFO ang £111 accordingly. Any newly hired plantation
mechanic woule end up performing NCFO work.” With ne
Cent ractusl obligation under MCFO, SUZUKI agreed DEL MONTE
could freely create these new positions in REF to do the
fcrmer ACEO work
As 2 “hunanitarien” gesture the Enpleyer intended to
Permit the 1aid off HCFO menbert to appiy for and receive
Preference for vacancies st Konia: if selected for one of
the reputed 184 vacancies, s former HCFO renber Wooley
however, be hired as an entry level
Such Statue entitled an enployes to only statutoriiy
Fequired rights and benefits, there would be no right te
iin @ bargaining unit, eny accrues senierity woule be
Gliminated, there would be no severance benefits, end no
Highte uncer any collective Bargaizing agreement. “Up to 30
years of cervice waule be washed no the workforce
Would be conprised of contract day later
ronicaily, the forner HCFO, now seasonal, employee:
night have appiiée for whatever ef their ele sees red been
traneferres te Konia, Upen peeting, the new-eeascnal
employees could have applied fer tenporsry seeignnent to
their newly postec cle cbs. if ne resvlariy exployed
opplicent was cetermined to queiify to be placed in the
petition, the cbvicusly qualifies former HCPO expleyet
Neuie end up doing their ele Jeb, except they would be
stripped cf bargained for senefite cr fargesting rights, and
a gubstantiel savings te the Employer. nile the
Enployer cleins thet such osteenes wefe not targeted, it
sito concedes they were, with the accerpanying sdvertages,
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The HLRB was not persuaded by Del Monte’s four defenses
to bad faith bargaining. In response to Del Monte’s argument
that the layoffs were necessary in order to meet the scheduled
transition of remaining HCFO functions to Kunia, the HLRB found
that such layoffs appeared not to have been an operational
necessity, because the plan was ultimately withdrawn. Second,
the HLRB dismissed Del Monte’s argument that it was not
responsible for the collapse in negotiations because in and after
its final offer the company invited further negotiations, stating
the following: “the utility of negotiations with the Union
representing a barcaining unit which was to be unilaterally
stripped of membership, and therefore bargaining power, escapes
the Board.” In response to Del Monte’s argument that its final
offer was not an unlawful condition, but enly served to advise
the Union of “en alternative thet enphasized the comparative
advantages of the final package,” the HLRE found that “when the
Yelternative’ is nothing ore than @ promise to empty the
bergaining unit which effectively mekes further bargaining
impossible, characterizing the threat as @ consequence rather
than as condition can make no meaningful d:
ference.” Lastly, in
response to Del Monte’s argument that its conduct throughout the
course of bargaining p
or to the final offer -~ in particular
the uncontested mutual concessions -- reflected such indicia of
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good faith that on the “totality of circumstances” @ finding of
bad faith was not warranted, the HLRB concluded that “any
apparent indicia of good faith that could be inferred by the
Employer’s concessions or conduct prior to its final offer was
rendered illusory by the terms of that offer.*
The HLRE issued the following remedial order:. .
1, DEL MONTE shall cease and desist from the sbove
identifies unfair 1abor practices and resune effects
bargaining with the ILMU subject to the following
conaitions
ALL HCFO enters
ctf as 2 result of the
Closing of the Naiskanslo faciiity shail be
awarded the enhances severance benefits
identified in previous negotiations oF the cash
value thereo!s
b. Any HCFO menbers transferred or hired into
equivalent positions in the KFF or plantation
Bargaining unite shail be credited with eli
senjority and benefits accrued within the HCFO
bargaining unit?
©. For any equivalent HCFO job being performed by
KEF or Plantation employees, there shall be
ew permanent positicn establigned within the
effected [sic} eargeining unity and
¢. BEL WONTE hall provide the ILAY with « detailed
Conplete list of its current vacancies.
Guelitied ciepiaces HCFO enpicyees shell have
Fignte of first refusal inthe filling of any
vecancies, If the cuties to be performed ore
substantially the eane as those of the HCFO Job
fron which the employee wae leic off, the neely
filled porition shell be made permanent and the
employee afforded the senuerity eng rights
2. The conditions ieentities above may be mecified or
weives by the motel consent cf the perties dn
Eargaining. But unless waives of deferred by mutual
consent, SEL MONTE shell inplenent the above
‘an not only
‘evicusiy bargesned for
benefitas
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conditions within 45 days of the issuance of thie
orders
3. Respondents shall innedistely post copies of this
Gecision in conspicuous places at work sites unere
‘employees of the bargaining unit agsenble and
Songregste, anc cn the Respondents’ mebelte. for
period ef 60 days from the initial date of posting
The Circuit Court Affirms the HLRB Decision
On April 23, 2004, Del Monte filed ite notice of appeal
to the circuit court." The circuit court affirmed the HLRB’s
decision, stating in its September 20, 2004 decision:
With respect to the mixes questions of Lew and fact
regarding whether Appellant Dergsined in bec faith and
whether Appeilent snterfered with or discrinineted against
the Unien'in an inherently destructive manner, this Court
must give deference to the SLRE's decision, and cannot
Substitute its own Judgment for that of the Agency, Be
upon, the evidence, the court dees not conclude chat the
HURB’s Findings ene Conclusions were clearly erroneous
With respect to the renedy of proving (sicl enhanced
separation benefits, besed upon HyR.e. Section S17=3{a)s the
Court does not conclude thet the SLAB erred ac a matter of
Low in awarding such benefite: Accordingly, the NLAB'S
Decision No. ¢47 i AFFIRMED.
Judgment and Notice of Entry of Judonent was filed on
April 1, 2005. On April 29, 2005, Del Monte filed its Notice of
Appeal to the Supreme Court.
ms EV
A. Secondary Appeal
Review of # decision rade ty the circuit court open
ite review of an agency's decision 14 8 secondary appeal
The standard of review 22 che in sbich this court must
Getermine whether the circuit court was right oF wrong sn
Ste decision, epplying the stancarcs eet fe1
ie)
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Korean Buddhist Dae Won Sa 7 if Hawai'i vy, van, &
Hawai'i 217, 229, 953 P.2d 1318, 1327 (1998) (quoting Bragg v.
te Fa: to. , €1 Hewai'i 302, 304, 916 P.2d 1203,
1205 (1996)) (alteration in original). HRS § 91-14, entitled
“Judicial review of contested cases,” provides in relevant part:
{g)___ Upon review of the record the court may atffem
the decision cf the agency or renand the ca
instructions for further proceedings; or it nay Teverse oF
nogify the decision 1 rights of
the petitioners nay have been prejudiced because ihe
ecrinistrative findings, conclusions, decisions, or orders
(2) In violation of constitutional or statotory
provisiones or
(2) Te excese of the statutory authority ex
Surieaiction of the agency: or
(2) ede ‘upon unlawful preceduces or
(4) Affected by other errer of laws or
(5) Clearly erroneous in view of the reliable,
probative, ane subetancial evidence on the whole
(6) AEbitrary, or capricious, of characterized by
abuse of discretion cr clearly unwarrented
exercise of iscretion
“[U]nder HRS § 91-14(g), conclusions of law are reviewsble under
subsections (1), (2), and (4
ons regarding procedural
que
defects under subsection (3): findings of fact under subsection
(S)i and an agency's exercise of discretion under subsection
465, 918 P.2d
‘Trust Estate, 4 Hew. App. 633
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8 istrative Roency Conclusions of Law
Fact
An agency’s conclusions of law are reviewed de novo,
Camara v. Aosalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984),
while an agency's factual findings are reviewed for clear error,
HRS § 91-14(g) (5). A “[conclusion of law) that presents mized
questions of fact and law is reviewed under the clearly erroneous
Standard because the conclusion is dependent upon the facts and
circumstances of the particular case.” Brice v. Zoning Bd. of
Appeals of City and County of Honolulu, 77 Hawai'i 168, 172, 983
P.2d 629, 633 (1994).
As a general matter, @ finding of fact or @ mixed
determination of law and fact is clearly erroneous when “(1) the
record lacks substantial evidence to support the finding or
determination, or (2) despite substantial evidence to support the
finding or determination, the appellate court is left with the
definite and firm conviction that a mistake has been made.” 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 quelity end probative value to enable a person of
reasonable caution
support @ conc
(quoting Leslie
26 1220, 1225
(2999).
Statutory interpretation is “a question of law
reviewable de novo.” State v, Levi, 102 Hawai'i 282, 285, 75
P.3d 1173, 1176 (2003) (quoting State v. Arcee, 84 Hawat'l 1, 10,
928 P.26 843, 852 (1996)). This court's statutory construction
is quided by established rules:
First, the fundamental starting peint for statutory
interpretation is the Language of the statute steel!
Secong, where the statutory language Ss plain and
unenbiguous, cur sole duty ie to give effect te its plain
‘and ebvicus’ meaning. Thifd, implicit in the tesk of”
Statutory construction 1s cur foremost ebligetion co
ascertain ano give effect to the intention of the
legislature, which is to be obtained primarily trom the
language contained in the statute itself. Fourth, when
there is doubt, coubleness of meaning, of indistinct:
or uncertsinty’ of an expression used in'a statute, an
enbiguity existe.
Peterson v, Hawaii Elec, Light Co. Inc., 85 Hawai‘ 322, 327-28,
944 P.26 1265, 1270-71 (1987), superseded on other grounds by HRS
§ 269-15.5 (Supp. 199:
(block quotation format, brackets,
citations, and quotation marks omitted).
In the event of ambiguity ina statute, “the meaning of
the ambiguous words may be sought by examining the context, with
Which the ambiguous words, phrai
8, and sentences may be
compared, in order to ascertain their true meaning.” Id.
(quoting HRS § 1-15(1) (1993)). Moreover, the courts may resort
to extrinsic aids in determining legislative intent, such as
legislative
story, or the reason and spirit of the law. See
HRS § 1-15(2) (19:
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D. Defexence to Discretionary Decisions of Administrative
Agencies
Under HRS 91-14(g) (6), an administrative agency’s
determinations will not be disturbed unless “[a]rbitrary, or
capricious, or characterized, by abuse of discretion or clearly
unwarranted exercise of discretion.” Thus, before we can
determine whether an agency abused its discretion pursuant to HRS
$ 91-14 (g) (6), we must determine whether the agency determination
under review was the type of agency’ action within the boundaries
of the agency's delegated authority. To the extent that the
legislature has authorized an administrative agency to define the
paraneters of a particular statute, that agency's interpretation
should be accorded deference.
Thus, when reviewing an agency's determination, this
court has stated:
‘The standard of review for administrative agencies
Egneists of tho ports: first, an ansiysie ef whether
ing iegisiature enpowerea the agency with discretion to make
2 particular determination; ane second, if the agency's
Geterninacion wes Uke"resin of Giseretion, wether
gency abused that discretion (or whether the agency's
action wee ctherise “ernitrary, or capricious,
Characterized by, . (a) clearly onwerrent
Giscretion," URE & $3-161g)(6)]- If an agency Getermination
Senet within ite resin of secretion [ae defined by the
legislature), then the agency" s determination 1s net
entitied te the deferential “abuse of discretion” standard
ef review. If, hewever, the agency acts within ite reeim of
Giecretion, thin its deterainetion will not se everturned
unless the agency hae abused ite discretion.
Paul's Electrical Serva, inc, v, Eefitel, 104 Hawai'i 412, 417,
494, 499 (2004) (internal citation omitted).
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TIT. DISCUSSION
A. The Circuit Court pid Not Clearly Err in affirming the
BB's Determ: Eh ee
Sood Faith,
Del Monte argues that the HLRB’s determination that Del
Monte refused to bargain in good faith in viclation of HRS § 377-
6(4) was erroneous because the “totality” of its bargaining
conduct denonstrated good faith. Applying the clearly erroneous
standard of review, the circuit court affizmed the HLRB's
determination that Del Monte had violated HRS § 377-6(4),
deferring to that agency's expertise. As set forth below, we
agree with the circuit court’s conclusion.
HRS § 377-6(4) makes it sn unfair lsbor practice for an
employer “[t]o refuse to bargain collectively” with the
employees’ Union. Whether a perty failed to bargain in good
faith is @ mixed question of fact and lew, NLAB v, Reed & Prince
Mfg. Co., 208 F.2d 132, 134 (1st Cir. 1953); Bd. of Edue., 2
PERE 275, 285 (1972), as it consists of the application of the
jegal stendard under HRS § 377-6 (4) to the factual conduct of the
which governs collective
1c enployees within cticn, provides the
‘cellective ber which shece Ligne on the
ing by en employer and 2
na collective
he represent
pleyees ina mutually
Serity
Emphasis acces
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parties. See Price, 77 Hawai'i at 172, 883 P.2d at 633 (defining
mixed questions of law and fact as conclusions of law that are
“dependent upon the facts and circumstances of the particular
case”).
‘The HLRB has adopted the following’standard to assess
whether an employer has met its statutory duty te bargain, drawn
from federal labor law principles regarding bargaining in “good
faith": “whether the totality of the lemployer’s] conduct
evinces a present intention to find a basis for agreement and a
sincere effort to reach @ conmon ground.” Bd. of Educ. (Decision
22), 6 NLRB 173, 177 (2001) (citing The Developing Labor Law: The
Board, The Courts, end the National Labor Relations Act 608
(Patrick Hardin et al. eds., 3d ed, 1992) [hereinafter The
Developing Labor Law (3d ed.}] (citing, inter alia, MLB v
Montoonery Ward § Co., 133 F.2d 676, 686 (9th Cir. 1943))). In
addition to this inquiry, which focuses on the totality of the
parties’ conduct, the HLRB also discusses certein “conditions
imposed upon bargaining which [are] ‘so onerous or unreasonable
as to indicate bad faith.’” (Citing Zhe Developing Labor Law (3¢
€G.), supra, at 596-97.) We do not pass on the propriety of the
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legal standard for HRS § 377-6(4) adopted by the HLRB, which in
any case has not been raised by the parties.”
Del Monte contends that the HLRB focused unduly on Del
Nonte’s June 21 letter in making its bad faith determination,
while ignoring the totality of its conduct which Del Nonte argues
demonstrates its intent to find a basis for agreement. , Del Monte
further argues that the June 21 letter was misinterpreted by the
MLRB, and should not form the basis of a bad faith determination.
In support of its argument, Del Monte cites mmerous actions it
undertook that it argues indicate @ good faith desire to reach an
agreenent, including attending al scheduled meetings, exchanging
Propesals, and reaching agreement on nunerous proposals. Del
Monte also defends its final offer issued in the June 21 letter
has contested the legel standare for goed faith
‘the eizeuit court cr in this appeal. On the cont
isputed that the test fer good faith
ity’ of the party's conduct Gencnstrates &
is for agreement,” which test the BLAB applied,
and cites approvingly pricr HERB cose law ciscuseing thet standerd.
in ny event, the sccption of this standerd 12 8 permiscitie
ne HERA by the HLURB, whore respensibiiity it is to
See WRE €°597-2 [258817 uns'€ 26-20 (2995).” Determining
Ses exhibited a “mutcaily genvine effort to reach an
tothe subject uncer negetiatien," HRS $3718) 5 is
’ (G-fest roles co net apply.” in this
J cuserve the "well estatiisned rule of statutory
en sorsniet is chargec with the
ryine ovt
Neither part
applied by the HLRE
Del Mente’ =
by ite netere eninge.
construction that, whi
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es “hard-bargaining” undertaken in good faith, and as an effort
to promote rather than to thwart agreement.
In rebuttal, the Union reiterates much of the
evidentiary basis on which the HLRB relied to reach its
conclusion, and disputes Del Monte’s characterization of its
bargaining activity. In particular, the Union points to thé
HLRB’s determination that the final offer issued by Del Monte in
the June 21 letter was 2 “take-it-or-leave-it” proposition that
would empty out the HCFO bargaining unit if the Union did not
accept the offer, The Union also raises the fact that the RLRE
determined Del Monte’s defenses -- such as its claim that the
Proposed layoffs were necessary to meet transition deadlines and
that its final offer invited further negotiations -- to be
without merit. Lastly, the Union supplies various pieces of
evidence aimed at rebutting Del Monte’s cli
m that its prior
conduct reflected “such indicia of good faith” that a finding of
bad faith on the “totality of the circunstences” was not
warranted.
Ag steted above, whether an enployer has bargained in
goed faith presents @ mixed question of lew and fact reviewed
under the clearly erroneous standard. Even though there is
evidence in the record of discrete actions by Del Monte
Suggestive of good faith, the HLRE’e determination of the
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“eotality” ss not @ counting game of good and bad acts, and its
expertise in labor relations entitle the HLRB to judicial
deference in this area. See Gov't Employees Ins. Co. v. Hyman,
90 Hawas's 1, $, 975 P.2d 213, 215 (1999) (*{J]udicial deference
to agency expertise is 2 guiding precept where the interpretation
and application of broad or ambiguous statutory language. by an
administrative tribunal are the subject of review.”). More to
the point, and in harmony with the circuit court’s decision, the
scope of review under the clearly erroneous standard is limited
to (1) determining whether there is substantial evidence in the
record to support the ruling and (2) if there is such evidence,
Getermining whether the record nevertheless leaves the court with
the definite and firm conviction that @ mistake has been made.
In re Water Use Permit Applications, 94 Hawai'i at
431; see also Exotect Ala Wai Skyline v. Land Use and Controls
Comm, € Haw. App. 560, 547, 735 F.2d 950, 965 (1987) (*IT]he law
9 P3d at
does not require that all the evidence put before an
administrative agency must support the agency’s findings.”
(ci
ions omitted.)). “Substantiel evidence” is credible
evidence of sufficient qua
ue to enable a
y and probative v
Person of reaso:
Water Use Permit Applications, 94 Hawai'i at 119, 9 P.3d at 431.
The BLRE’s ruling «
ble caution to support a conclusion. In re
t Del Mente did not meet ite
barged
ng obligation mandated by HRS § 377-6(4) was supported by
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credible evidence in the record. Finding of Fact No. 19
discuss
Del Monte’s final offer which the HLRB found to be a
“take-it-or-leave-it” proposition that was “intended to empty out
the bargaining unit absent the Union's acceptance of the offer.”
The letter, which was received on June 21, 2003, gave the Union
until June 23 to accept the offer, or face the consequences’ on
July 1, 2003. The letter required the Union to withdraw the
unfair lebor practice complaints if it was to accept the
tentative agreenents offered in the first half of the letter.
Following rejection of that offer, negotiations were
discontinued." These elenents of Del Monte’s final offer, as
well as the context of the negotiations, are sufficient evidence
upon which the HLRE may have concluded that Del Monte did not
bargain in good faith.
The HLRB also found thet Del Monte’s actions were
“particularly insidious,” in thet they would allow the company to
create new positions which combined former HCFO work in the KFF
facility, meking it possible to employ qualified former HCFO
employees in similar positions “who would be stripped of
bargained for benefits or bargaining rights.” Lastly, the HLRB
rejected Del Monte’s
jerious defenses of its actions, finding
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that: (1) the proposed total layoffs were not an operational
Recessity; (2) Del Monte’s ostensible invitation of further
negotiations was of no use to the Union given the circumstances;
(3) the final offer “effectively ma(de] future bargaining
impossible” rather then presenting » “lawful alternative"; and
(4) Del Monte’s final offer “rendered illusory” the apparent good
faith of its prior bargaining conduct.
While Del Monte disputes these characterizations, it
has not shown then to be in clear ezror. On the contrary, the
RLRB'S uncontested findings of fact provide substantial evidence
that Del Monte did not bargain in good faith. Del Monte contests
in particular the weight that the HLRB placed on the “inal
offer” issued in Del Monte’s June 21 letter. However, the HLRB
may, within its expertise, determine that this letter was “so
onerous or unreasonable” as to tip the scales towards a bad faith
Getermination, despite the employers other bergaining conduct
‘This determination is not clearly erroneous, and this court is
not in the pos
ion to second-guess the agency’s close reading of
the complex relationship between Del Monte and the ILNU local.
Sse Dole Hawai'i Division-Castle § Cooke, Inc, vs Ramil, 71 Haw.
419, 424, 794 P.26 1115, 1118 (1990) (*(T]he court should not
As neted, the BLRE
ficta cf geod feith
rendered “ilueery
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substitute its own judgment for that of the agency.” (Citation
omitted.)).
Del Monte argues that the HLRB’s determination that Del
Monte violated both HRS $$ 377-6(1) and (3) was an exror.of law
and/or clearly erronecus because its final offer in the June 21
letter was not “inherently destructive” conduct. Specifically
Del Monte argues that its conduct was not “inherently
destructive” because it (1) did not have @ visible and continuing
impact and (2) had a legitimate and short-term goal of expediting
agreenent.* However, the circuit court affirmed the HLRB’s
determination that Del Monte had violated HRS §§ 377-6(1) and
(3), applying the clearly erroneous stendard of review and
deferring to the agéncy’s expertise. As set forth below, we
agree with the circuit court's conclusion with respect to the HRS
§ 377-6(1) charge but disagree with its conclusions regarding the
HRS § 377-6(3) charge.
# an ite brief, Del Monte fecuses on the requirenente fer “inherently
ervctive” conduct ite the “inheren eructive™ Lebel hi
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1, The HERB’ s Determination that Del Monte Violated HRS §
377-6(3) Through “Inherently Destructive” Acts Was an
Error of Law Because Del Monte Did Not “discriminat[e]
in regard to hiring, tenure, or other terms or
conditions of employment.”
The HLRB concluded that Del Monte’s conduct was
“inherently destructive” of employee rights, in violation of HRS
§ 377-6(3), focusing on the company’s final offer contained in
the dune 21 letter. The HLRE described the violation as Del
Monte’s “discriminatory act of threatening to terminate all
members of the HCFO bargaining unit and eliminate their
positions," which it categorized as “inherently destructive.”
Under HRS § 377-6(3), it is an unfair labor practice
for an employer “(t]o encourage or discourage menbership in any
labor organization by discriminetion in regard to hiring, tenure,
er other terms or conditions of employment.” In determining
whether employer conduct is discriminatory in vielation of HRS §
RB has followed National Labor Relations Board
sorated 26 fclloxe:
rected agesnst el bargaining unit members. At
fer the eepleyees no the B
ne subsequently decides to
threat wee # result of
cine the exercise of
26 (1867), the united
duct that adver
ye" or "comparatively
et ef inportent
Untisuces evidence that
ably be oe
eeployee rights, no p
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(WLRE) and United States Supreme Court interpretation of
analogous federal labor lew. See International Longshore and
Warehouse Union, Local 142, 6 HLRB 194, 198 (2001) (citing Great
Dane Trailers, Inc., 388 U.S. 26). The key element of Section
377-6(3) is “discrimination” by the employer. As the NLRB has
put it, “[4Jn the law of labor relations, the term
‘discrimination’ most often refers to inequality of treatment
based upon discriminatory employment practices on the part of
employers to discourage employees’ organizational activities for
collective-bargaining purposes.” Walnut Creek Hosp., 208
N.L.R.B. 656 (1974). Employment practices that discriminate in
this fashion usually take the form of discharge, refusal to hire,
or lesser forms of discipline." Therefore, it is clear that
Interpreting substantially eimiler provision of federal law —~
Liter elet ote “act tea) Section 64113) —“"she United states
ie not enbiguous. The unfair labor
@ 1s for an employer to encourage of discourage nexbership
Of discrimination. Thos thie section dees not cutlaw al
‘genent oF aiscourecenent of mesbership in iaber
Srgentations: only ss déserininstio
Eechibited.
, 347 9.8. 17,
43 (1954) lenphacaé adcec) We fs with respect to
RS § @9-12(8) (3), which if nearly identicel te HRE § 377-6(3) but governs
public rather then private sector leper relatiens. See Hawsil ©
se! " i ations Ea., €0 Hew 360, $90 F.2d 985,
S8e (175) (concluaing that *[elniy interference with e lavtul employee
activity, of ciscriminetion lovee evercise of = provectes
Fight, may Be
leber lay in te “epecitic
nation” section, has a ciscussicn
‘expleyment action that
Bscipline fer Union
ky Repiacenent and
‘eone inved
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“discrimination” requires some employment action or practice that
is beyond mere threat or bargaining proposal.
Because the HLRB has not identified any employment
ection by Del Monte that may qualify as “discrimination,” its
conclusion that the company violated HRS § 377-6(3) is erroneous.
Winile an administrative agency's interpretation and application
of @ broad or ambiguous statute is generally entitled to
deference, see Gov't Emplovees Ins. Co., 90 Hawai'i at 5, 975
P.2d at 215, this court will not hesitate to reject an incorrect
cr unreasonable statutory construction advanced by the agency
entrusted with the statute's implementation. In re Wi
Permit Applications, 94 Hawai'i st 145, 9 P.3d at 457.
Del Monte’s conduct of putting forward a threatening
bargaining proposal, while found to violate its duty to bargain
in good faith, did not effect any change in the terms or
conditions of the Union members’ employment, nor involve any
Gischarce or feilure to hire Union members.‘ As such, the
fst Unien or
er Sex"; ane Sion’ Eaeed on Terns of
signet tener SRG 2-17 (Fetrack Herasn et aL
fer The bevesccine Labor lax (ath ed.1}- The
he question ef unether the enpleyer in fact
Ghanges the enployee's tenure cr tere cr conditicnt of enpicyeent is rarely
Af'ever disputed.” 1a. at 25960,
collective Barcesn
deter ections ky Del Monte that
Union enplcyees coule give rise to 8
recultes in the ciscnarge cf nosere
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conduct did not “discriminate,” as no employees were treated)
differently than any others with respect to their employment
conditions. Rather, Del Monte’s conduct was limited to the realm
of bargaining and did not affect terms of employment. While its
result may have been to discourage unionism, it did not reach
this result by discrimination as to hiring, firing, or the
conditions of employment. .
Under these circumstances, the HLRB has applied an
erroneous definition of “discrimination” to which this court need
not defer. For this reason, we hold that the HLRB erred in its
determination that Del Monte violated HRS § 377-6(3).
2. The HLRB’s Determination that Del Monte Violated ERS §
377-6(1) Was Not Clearly Erroneous.
HRS § 377-6(1) provides that it is an unfair labor
practice for an employer “(to interfere with, restrain, or
coerce the enployer"s employees in the exercise of the rights
guaranteed in section 377-4." In assessing whether such
®(...continued}
véclation éf mhe § 277-663), tha
are tne
woe net presented to the HLAB or the
circuit court t Stands befere this court en appeal.
able clein of ciserininatii
RB ond thie court, In see
jon of Fact and Law te the HIRE,
softer to support ite
complaint cr subsequent briefs te the
Unease
the Unien fecvees
ruling!
27-8
provides
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—EORUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER °° _
interference has taken place, the HLRB asks “whether the conduct
in question had a reasonable tendency in the totality of the
circumstances to intimidate.” United Food and Comercial workers
Union, « HLAB £10, £17 (2988) (quoting Corie Comm,, 375 F. 2d at
153). Whether the enployer “interfereid]” with employees"
exercise of their rights presents @ mixed question of fact and
law to be reviewed under the clearly erroneous standard. See
Brice, 77 Hawai" at 172, 683 P.2d at 633 (defining mixed
questions of law and fact as conclusions of law that are
“dependent upon the facts and circumstances of the particular
case").
‘The HLURB concluded thet Del Honte’s conduct, as
expressed in the June 21 offer, was threatening to employee
Fights. The letter offered tuo scenarios, one of which required
that the Union withdraw its unfeir labor practice charge as a
condition of agreenent, the other of which involved layoff
without any benefits beyond those already in the collective
bargeining agreement. The Union was given three days’ notice
before Del Monte would inplenent the total leyoff. vitinately,
fourteen HCFO employees were trensferred to Ki
8. With respect
ith activstier
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to the final offer, the HLRE found that, “{aJt least for the’
employees who the Employer had previously intended, and
subsequently decided to retain, the threat was a result of their
participation in the bargaining unit and exercise of rights via
their exclusive representative.” Based on the evidence
Presented, the HLRB’s determination that Del Monte’s conduct had
a reasonable tendency to intimidate employees, in violation of
HRS § 377-6(1), was not clearly erreneous.**
C. The Remedy Granted b L
77=91d) Nay
ary fom a for Unk:
Exactices.
Del Monte argues that the HLRB exceeded its statutory
authority and was in error with respect to its proposed remedy
that “all HCFO members laid off as a result of the closing of the
Waiakamilo facility shall be awarded enhanced severance benefits
eanilar vein, the UF its answering brief to this court,
asserts that Del Wente’s finsi offe a message to the remaining employees
Sh the HCPC ang the two other bar unite that further negotiations were
futile. Furtherncre, the Union subnite, “the final ultimatum. . « would have
tn the foture to engage sn
agverse impact on [enployees’) willingre:
Concerted ectivity.”
(clusion thet Del Monte
Gp ste etermsnstsen that Del
ea employee right
Lec have based ste «
eed employee £3gh
In gees fateh, wh:
(CEnployees:
ine analogous
Wonder fece 2 ser =
Provision, MURA § €(a) (11; 29 U.8-C. § (2000) can be found
incther nisiz leecr prectice set Seen conmsttec. See The Develepize
iabagchaa 160 cos), aug 9002 PIA vie
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identified in previous negotiations or the cash value thereof
Del Monte’s principal argument is that the HLRB, because of
Limits in its statutory authority to craft remedial orders, may
Rot impose substantive terms of collective bargaining upon the
Parties, based on United States Supreme Court decisions Limiting
the remedial powers of the NIRB. With less emphasis, Del Monte
appears to
que in the alternative thet even if the HLRB had the
authority to grant the enhanced severance benefits remedy, it was
not justified in doing so. The circuit court ruled that the HLRB
had not erred as a matter of law in granting the enhanced
severance benefits renedy. For the reasons discussed below, we
agree.
1. As a Matter of Law, the Enhanced Severance Benefits
Remedy Did Not Exceed the HIRB’s Statutory Authority.
‘The Staci fords the HLRB Diser sa
In order to determine if the severance remedy granted
by the HIRB in this case was in violation of law, we must
determine the outer bounds of the authority of the HLRB to order
remedies for unfair lebor practice violations.
The extent of the HLRE’s remedi
powers authorized by
statute is 2 question of first impression for this court. In
order to determine whether the HLRB’s crder wes within its
authority, me must interpret the statute. The proper
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interpretation of a statute is “a question of law reviewable’ de
nove.” Levi, 102 Hawai'i at 285, 75 P.3d at 1176 (quoting Arceo,
84 Hawai'i at 10, 928 P.2d at 852).
As in all statutory analysis, we begin with the
statutory text. ‘The imposition of remedies by the HLRB under the
HERA is governed by HRS § 377-9(d), which discusses how the “HLRB
disposes of a case after the final hearing.” With respect to
final orders, that section says the following:
Final orders may dismiss the complaint or require the person
complained of to cease and desist from the onfair labor
practices found to have been committed, suspend che person's
Fights, intunities, privileges, or remedies granted or
afforded by this chapter for net more than one yeat, and
Hegulve the person to take such affiemstive action,
he beard nav deen proses, Any order may farther requis
the person to make reports from time to time showing the
extent to which the persen has conpiied wth the order.
HRS § 377-9(d) (1993) (emphasis added).
At issue in this case is what limits exist on the
NLRB's power to grant orders requiring “affirmative action.” The
relevant provision states that the final order “may . . . require
the person te take such affirmative action, including
reinstatenent of employees with or without pay, as the board may
deem proper.” Id. (emphasis
idea) .
fe cninietrstor of the #
Beard et
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In interpreting the meaning of this provision, we focus
first on the language itself and give effect to that language if
it is plain and unambiguous. See Peterson, 85 Hawai'i at 327-38,
944 P.24 at 1270-71, Focusing on the relevant provision above,
the statute presents no ambiguity. The provision, on its fac
grants discretion to the agency in determining the types of
actions it will require of employers who have committed unfair
labor practices. The words “as the board may deen proper” make
this exceedingly clear. See State v. Kahawai, 103 Hawai'i 462,
465, 83 F.3d 725, 728 (2004) (“The term ‘may’ is generally
construed to render optional, permissive, or discretionary the
Provision in which it is embodied? this is so at least when
there is nothing in the wording, sense, or policy of the
Provision denanding an unusual interpretation.” (Quoting State
ex rel. City of nil Bernard, 372 N.E.24 338, 342 (ohio
1978).)). The clause specifying reinstatement “with or without
Pay” as possible actions that could be brought upon a violating
employer does not restrict the discretion of the HLRB in crafting
“affirmative action[s],” because thet clause is explicitly
illustrative rather then exclusive in nature, as nade clear by
the word “including”. See In re Waikoloa Sanitary Sewer Cou,
Ince, 102 Hawai'i 263, 128 P.3d 484 (2006) ("[T]he term
neludir on, but connotes
is not one of ali-enbracing de:
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simply an illustrative application of the general principle.”
(Quoting Zed. Land Gank of St. Poul v, Bismarck Lumber Co., 314
US. 95, 99-200 (1941).)). Therefore, the clear text shows that
the Hawai'i legislature enpowered the HLRB with discretion to
determine appropriate remedies for the commission of unfair labor
practices." See Paul's Electrical Serv., 104 Hawai'i at 417, 91
P.3d at 499 (stating that, when this court reviews adninistrative
agency determinations, the first step is “an analysis of whether
the legislature empowered the agency with discretion to make a
particular determination").
b. stor!
\dicially Constructed Lim: the Remedial
Authority of the NLRA Inepplicable to the HLRB.
Del Monte argues that the HLRB’s authority to grant
remedies should be limited by the 1970 United States Supreme
Court case Hk. Porter Cou, Inc, v. NLRB, 397 U.S. 98 (1970),
which held that the NLRB lacked authority to compel a party to
wry is unnecessary where a
7-28, 344 P.2a at 1270-
stetute'e nesning i P:
51, the legislative he ne opposing construction.
The legislative nistery of the HERA gives little elucigstion of the intention
of the legislature. One positive statenent, inva report. fren the Hawai!
House sudicisry Coanittee recommending pacséce cf the £111 te the Senste,
Provides that: “the purpose of this bill ie to procere che peacefor
Settlenent ef cieputes anoustry." Hse. stone. Comm. Rep.
No. S16, in 1965 House Jot This cf purpore ia in the
neture cf e general ebsect ally neanirofel in another
context, theo: tenent provices iittie guidance to the issue at hand
$i, 29 U..€, $181 12000) (includes an
5, fuch es the ein to
senely adsvernent of 2
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TL BOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER 8° _
make a bargaining concession or to agree to @ proposal. Del
Monte also points to legislative history of the NLRA which
Suggests limitations on the types of remedies permitted.”
However, due to pertinent differences in the language, structure,
and history of the HERA and the NLRA, these authorities cannot
dictate the development of Hawai'i law and Del Monte’s arguments
are inapposite.
Textually, the two statutes contain significant
variations in the language used to describe the affirmative
remedies that may be ordered by the respective labor boards. As
Giscussed, the HERA specifies that the HLAB may issue final
orders which “require the person to take such affirmative action
++ asthe board mi roper.” HRS § 377-9(d) (emphasis
scded). In contrast, the parallel provision in the NLRA states
that the NLRB, when it finds thet the Act hae been violated, may
issue an order requiring the employer “to take such affirmative
action including reinstatement of employees with or without back
pey, as tectuat 2 ia os an
U.S.C. § 160(c) (2000) (emphasis added). The differing language
Conmittee Gn Eavcetion ane 2
peteage cf the MLR, ‘that st
inpression thet this bill se oeedgned te
he ma : rentel supervision ef their
(Citing Wik. Fortes, (queting . Rep. No, 74-573, at
cry ef the NIRA cennct be
aint eg:
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in these two provisions indicates the different remedial schemes
fon which they are based. While the NLRA provision places a
Limiting condition on the affirmative action the NLRE can take
(Tas will effectuate the policies of this subchapter”), the HERA
more clearly leaves the crafting of affirmative remedies to the
discretion of the board ("as the board may deem proper”). The
lack of @ policy section in the HERA further makes clear that the
statutory language of the NLRA in 29 U.S.C. § 160(c) ("as will
effectuate the policies of this subchapter") cannot be read to
apply to the parallel provision in the HERA, end that, as a
result, judicial interpretations of the NLRA section should not
be used to guide interpretation of BRS § 377-9(d). See HK.
Porter, 397 U.S. at 108 ("The Board’s remedial powers under § 10
of the Act are broad, but they are limited to carrvine out the
olicies of t itself.” (Emphasis added. ))
‘The structure of the two laws also differs in
significant ways wi
ch suggest that the HERA wes intended to
rent more discretion to its board than under the federal labor
used fecerel prececent on occasion in the
ich of state lebor ond enploynent lowe, gee,
‘960 F.2d i180, 1156
otson of poBlse
elely to,
ry language is the
employment lowe under HRS
Sntereretetson ano enly ae
Exzance, re Honass
incerprecing’eieiias piewielens:? tea
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Jaw. The NLRA begins with an extensive section entitled
“Findings and declarations of policy,” which has been used by
Courts and the NLRB to guide its interpretation of the federal
Ret. As noted, the HERA lacks such a policy section to guide the
HERB in ite adninistration of the act. Compare 29 U.S.C. § 151
(2000) ("Findings and declarations of policy”) with HRS §,377-1 to
~15. Secondly, the HERA lacks @ section equivalent to NLRA §
€(d), 28 U.S.C. § 158(d) (2000), upon which the United states
Supreme Court relied extensively in H.K. Porter to conclude thet
the NLRB lacked power to compel a bargaining term, in that case a
dues check-off provision. 387 U.S. at 107-08. NLRA § 8(d)
explicitly states that the collective bargaining obligation “does
ot compel either party to agree to a proposal or require the
making of @ concession." 29 U.S.C. § 158(d). These structu
differences reinforce the different natures of the remedial
suthority granted to the respective boards, and the
The nearest equivelent to this section in the HERA cones in the
Setinition ee. Sees not explicitly or implicstly limit the remedies
the HAD ray
“collective bargeins
" as the negotiating by an employer and a
exployeee in e collective bergaining
representatives) concerning representation oF Corns
of engleysent ef such employees ine mtvelly
to reach en greenent with reference ce the subject
the HERA cees
het by steelf sean
Sonped pertics to agree tc specific preporsis er te make apes
5 thet the
et 2 provieion equivalent te NRA
the HIRE hee the affirmative power te
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inepplicability of the H.K. Porter decision to Hawai'i state”
daw.
‘Therefore, based on the plain meaning of the HERA, it
is clear that the legislature has granted discretion to the HLRB
in crafting remedial orders when an employer has committed an
unfair labor practice. Thus, to determine whether the HLRB”
remedy was proper, we must determine whether the agency abused
its discretion.
* the structural differences between the HERA and the NERA are also
confirmed by their aifferent crigane! the template used to write the HERA was
a 'Wiscensin state lau, tne Miecensin Employment Peace ct, codified at Wis.
Stet. $5 111.01-.19 (2006), Wisconsin sas one of the first states to pass =
state labor relaticns law in 1987, later smendes in 193. See Joseph A.
Renney, The Rise of Labor 4 Wisconsin's “Little New Deal, is. Lew., Moy
10995, at 16, The Havel legislature, im 1945, consulted the Wisconsin law in
Grafting the HERA, 195 Haw. Sese. L. Act 250, §§ 1-20 at 108-17. Seq Sen.
Com, Whole Rep. No. 13, in 1948 senate Journal, at £30 (reporting on March 22,
185 hearing of the connittee, where subcem: speinted fo "go over
the bill... «end redraft it elong the lines of the Wisccnesn bil1"). The
sintlai in'the two lawe make clesr that the Hawai'i lew was dvaun from
the eariler-paceed Ricconesn set, rather than the NOAA. Comsaze HRS § 377~
516). ("Final orders nay disries the conplesnt or require the person complained
of te ceace ang seesst from the onfesr laber practices found to have been
Committed, suspend she person's Fights, immunities, privileges, oF renedies
grantee of of! er for net nore nd require
the person te,
enpleyees with er
to have been committed, suspend the per
Fenedies grantes cr affordes by thie subchapter f
quire the person to mative set
nent ef erpioyese with of wethest Poy oe sich deen
Pitier run threughe She cifferent
text and history ef the NIRA end the HERA sake Clear that Judicial
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‘The HLRB Did Not Abuse its Discretion by Ordering the
Enhanced Severance Benefits Remedy.
Having found that the legislature empowered the HLRB
with discretion in ordering affirmative renedies, we must
determine whether the HLRE’s renedy in this case, granting
enhanced severance benefits to laid-off HCFO enployees, vas an
abuse of that discretion.” See Baul’s Electrical Servs, 104
Hawai'i ot 417, 91 P.3d at 499.
As this court has discussed, discretion “is a flexible
concept”:
A strong showing is required te establish an abuse,
ang each cose must be decided on its own fecten Se
most commonly repeated definition was first erticuiated ie
. (748 Haw. 266, 292, 367 Be2d 11, 23 (1961)
(Glenerally, to'constivute an abuse it must oppear thet the
court clearly exceeded the bounds ef 1
substantia!
son ie
ieference
rerelly give to disereticnary decisions,
the high burden of arbitrariness er coprice
pellent must meet to overcene that deference.
aul’s Electrics] Serv., 104 Hawai'i at 419, 91 F.3d at 501
(queting Michael 3. Yoshii, appellate
Stenderds of Review in Hawsii, 7 U. Haw. L. Rev. 273, 292-93
(2985)).
% Because the challenged agency
iter ceternin,
on here wes the renegy it issued
conrittes an unf or practice, it
seein of glette ‘See Basle
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hat constitutes an abuse of discretion in the context
of an HLRB renedy has not been addressed previously by this
court. Rather than creating @ general rule to be applied across
the board, it suffices to say that the HLRB's remedy in this case
was not an abuse of its discretion.
The challenged remedy in this case, of granting
enhanced severance benefits that had been tentatively agreed to
in prior bargaining, arises in a special and limited context:
effects bargaining pending the closing of operations of the HCFO
facility and the layoff of the majority of its employees. The
closing of a plant and concomitant elimination of the attached
bargaining unit constitutes the end of the collective bargaining
relationship for the employees to be laid off. These
circumstances irrevocably alter the balance of bargaining power
between the parties, and the possibility of resolution through
negotiations may erode further with the passage of tine. For
this reason, effects bargaining stands spart from routine
negotiations between enployer and lebor union for @ new
collective bargaining agreement. As such, the HLRE’s substantive
renedy does not supply the terms of an cngoing collective
bargaining relationship ~~ rather, it is in the nature of a one-
time payout calculated to remedy the unfeir labor practice that
the HLRE found Del Monte
committed. In these circumstances,
jonsble or in disregard of
the HLRE’s renecy is not unrea:
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Principles of law, and will therefore not be overturned as an
That order, including the challenged remedy of enhanced severance
® Even acting under the NLRA -- which, as discussed supza in section
by does not govern the HLNB's remedial powers == the NERD has allowed
2" renedy in the case of plant clocures. See, gg, Stevens Fomiae.
4 298 NuLiR.B. £09 (1989) (lesuing a bargaining Sider as eet eee
Tisitea Bockpay requirenent designea to make whole the enpicyees for losses
sustained asa result of the violation, and To recreate in seme: practicasie
manner a situation in which the parties’ bargaining positions are not entirely
devoid of eccnenic consequences for the (cexpanyi,” where the exployer
wolawfuily refused to bargain abeut the effects cf sts decision fo close &
fecslity) (emphasis acded). In such circumstances, the LAE applies « remedy
fret adopted in Tansmarine Comg., 170 N.1-R-B. 365 (2966), ordering the
enployer
utc.
a speci
8 with the Union, upen request, about the effects on its
3] of the (cempeny] shutaawn, and co pay these employees:
amounts at the rate of thelr normal mages when lest in the’
Respondent's enpley from S cays after the Gate of this
Suppienentel Oecisicn until the occurrence of the eariiest of the
following conditions: (1) the date the Respendent Sergeins for
agreement with the Union cn these eutsecte perteining to the
effects of the cloting « «si 12) a bene fide inpesse in
Bargaining: 3) the failure ef the Unien te request bergeining
within © days of this Supplenental Decision, or te commence
negotiations within © Gaye ef the Respondent's notice ef its
desire to bargain with the Union; of ié) the subsequent failure of
the Union te Eargein in gcod faith; but in no event shell the sum
Peid to eny of these enpicyees exceed the amount re mevid have
cerned as wager [fron the dete of cloeure te the tine the employe
secured equivelent enployzent or the cate the enplcyer cffers te
Ebreesn) rewever, that
4
* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
benefits,” is in the nature of a remedy for Del Monte’s
violation of its bargaining duty rather than a remedy for a
discrimination claim.” First of all, the HLRB opinion and
decision were primarily focused on the bargaining claim."
Furthermore, because the HLRB crafted its remedial order to deal
specifically with the effects of the closing of the Waiakamilo
facility, and incorporated in that remedy terms that were
tentatively agreed to by the parties, it is clear that the HIRB's
order was primarily intended to remedy Del Monte’s failure to
meet its bargaining obligation. Thus, as the HIRB’s remedial
order was directed towards Del Monte’s refusal to bargain in good
faith and not on its finding of discrimination under HRS § 377-
6(3), there is no reason to alter the HLRB’s proposed remedy.
% The other parte of the renedial order, not challenged by Del Monte,
also include the retention of senlorsty and behefite for HCFC merbers who are
hired cr transferre to the Kunis facility, the creation of a new permanent
position within the effectes bergaining unit fer any equivelent ACEO Job Being
performed by KFF cr Plantation employees, end renting e right of first
Fefusal to qualities dicplaced HcFO enpicyees for current vacancies at Del
Monte, a list of which Gel Monte must provice te the Unien
% the typical renedy for discrimination claim is backpay and
yeinstotenent under MIRA la4. See The Develoeine Labor tay (4th ed-), Supra,
at 2521-22, The HLRB' s renedial orer Goes net Feguire el Monte to pay
Backpay or ‘reinstate any employees
“ Moreover, to the extent thet the HLAE incorrectly opplied the law
with respect to the discrimination cles prcposes renecy wee not meant to
Fenedy e genuinely ciscriminatery ect. the HLRE misepplies the law by
het the threatening fin
Becaure st thecry of the vscisesen wer
9 efter, ite renecy cen alec Be od 88 a
hcther worce, the proposes
ate tse effects Of discrimination,
ee ren onfeir labor
na
** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
Therefore, and in light of the broad authority of the HLRB to
remedy unfair labor practices, the original remedy may stand.
aw. usr
Based on the foregoing, we affirm in part and reverse
in part the circuit court’s April 1, 2005 final judgment.
on the briefs:
Barry W. Marr
and Christopher S. Yeh
(of Marr Hipp Jones & Wang) .
for appellants-appellants BP terince—
Del Monte Fresh Produce
(Heweis), Inc., Edward C.
Littleton, stacie Sesageua, Rss 1, cea aeith
Gordon Rezentes, and
Dixen suzuki
Yorn €, Deibas the
Herbert Takahashi
and Rebecca L. Covert
(of Tekahashi, Masui,
Vesconcelios § Covert)
for Union-appellee=
appellee International
Longshore and Warehouse
Union Local 142, AFL-CIO
On the record:
Velri Lei Kunimeto
for appellees-appellees
Haweii Labor Relations Board;
Brian K. Nakanure, Chairperson
Chester C. Kunitake, Eoerd
Member; and Kethleen Racuye-
Markrich, Board Member
|
d2c9176d-d30b-435e-b5b3-9685dec504e4 | Pflueger v. Watanabe | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 28242
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
JAMES PELUEGER, individually and in his representative capacity;
PELUEGER PROPERTIES; PILA‘A 400, LLC, Petitioners,
Rg! SRE MATN, a we Son aa te
ORIGINAL PROCEEDING
(civ. No. 02-1-0068)
ORDER DISMISSING PROCEEDING
(By: Moon, C.J., Levinson, Nakayama, Acoba and
Upon consideration of petitioners’ notice of withdrawal
of the petition for a writ of mandamus and/or prohibition, which
is deemed a motion for dismissal pursuant to HRAP 42(b),
IT 18 HEREBY ORDERED that the motion for dismissal is
granted and this proceeding is dismissed.
DATED: Honolulu, Hawai'i, November 21, 2006.
Wesley H.H. Ching,
Kathieen Douglas, and
Bonita Y.M. Chang (of
Fukunaga Matayoshi Hershey
& Ching, LLP) and
William C. McCorriston,
Lorraine #. Akiba, and
David J. Minkin (of
McCorriston Miller
Mukai MacKinnon LLP)
for petitioners
|
10c6326d-eaad-484c-b386-8511f7143bb0 | Tauese v. State, Department of Labor and Industrial Relations | hawaii | Hawaii Supreme Court | IN THE SUPREME COURT OF THE STATE OF HAWAI'I
-000-==
STONE TAUESE, Plaintiff-Appellant
STATE OF HAWAI'I, DEPARTMENT OF LABOR AND INDUSTRIAL
RELATIONS; RITZ-CARLTON KAPALUA; MARRIOTT CLAIMS
SERVICES CORPORATION, Defendants-Appellees
(No. 26389) (CTV. NO. 02-1-0414)
SIONE A. TAUESE, Claimant-Appellant
RITZ-CARLTON KAPALUA and MARRIOTT CLAIMS SERVICES
CORPORATION, Enployer/Insurance Carrier-Appellee
and
SPECIAL COMPENSATION FUND, Appellee
(No. 26899) (CASE NO. AB 2002-462(M) (8-00-03858))
No. 26389
APPEALS FROM THE SECOND CIRCUIT COURT AND
‘THE LABOR AND INDUSTRIAL RELATIONS APPEALS
(CIV. NO. 02-1-0414) & 2
(CASE NO. AB 2002-462 (mM) (8-00-03858)) 2
NOVEMBER 21, 2006
1s Hd 12 AON 9002
(By: Acoba, J.)
‘The opinion of the court, filed herein on November 20,
2006, is corrected as follows:
aa
At page 62, line 4 from the bottom, the third zero
after the decimal point in the number $5,000.00
4s deleted.
IT 18 HEREBY ORDERED that the clerk of the court is
directed to incorporate the foregoing change in the original
opinion and take all necessary steps to notify the publishing
agencies of this change
|
d66637ae-45b7-4e15-9c3e-c185d722c4a5 | Holo Holo Charters, Inc. v. Department of Land and Natural Resources, State of Hawaii | hawaii | Hawaii Supreme Court |
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PAC
No. 26200
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
HOLO HOLO CHARTERS, INC., 2 Hawai'i corporation,
Plaintiff-Appellant,
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I;
PETER T. YOUNG,’ Director of the Department of Land and Natural
Resources and Chairperson of the Board of Land and Natural
Resources, State of Hawai'i; MASON YOUNG, Acting Administrator,
Division of Boating and Ocean Recreation, Department of Land and
Natural Resources, State of Hawai'i; and VAUGHAN E. TYNDZIK,
Kauai District Manager, Division of Boating and Ocean Recreation,
Department of Land and Natural Resources, State of Hawai'i,
Defendants-Appellees. .
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. No. 02-1-2618)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
comer)
Plaintiff-Appellant Hole Hole Charters, Inc.
appeals from the judgment of the Circuit Court of the First
Circuit? (“circuit court”) filed on October 13, 2003, following
the grant of summary judgment in favor of Defendants-Appellees
Department of Land and Natural Resources, State of Hawai'i
(“DINR”), and DLNR officials Peter 7. Young, Mason Young and
Vaughan £. Tyndzik, all of whom were sued in their official
capacities for purposes of this appeal (all four defendants~
appellees will be collectively referred to as “the DLNR
Defendants”). On summary judgment, the circuit court ruled that
Furevent to Hawes's Roles of Appellate Procedure (*HRAP") Rule
43(c)_ (2000), Feter 7. Young hes been substituted as a party to the instant
peal in place of Gilbert Colene-Ageran.
the Honorable Eden Elizabeth Hife presided,
NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
tort claims against the DLNR Defendants for
(2) 022 of HiT’
recovery of $115,022.24 in ocean recreation management area
Revised Statutes (*HRS*) §
(WORMA") fees-were barred by Hewa:
662-15(3) (Supp. 1999)? (exceptions to State of Hawai'i's general
waiver of sovereign immunity for tort claims) because HHCI had an
alternative remedy under HRS § 40-35 (2993); (2) however, the
statute of limitations had run on that HRS § 40-38 claims and (3)
the ocean recreation managenent permit ("ORMA permit”) was a
License, rather than a contract, such that (a) the court did not
ter jurisdiction over HHCI’s contract claims
possess subject
> HRS § 662-15 Liste seven enomerated exceptions te the State of
Hawoi's's express waiver of sovereign inmunity for the torts of ite employees.
Specifically, HRS '$ Ge2-15(3) staces that HRS chapter G62 does net apply te
Sfajny claim for which a renedy is provided elsewhere in the laws of the
statel.]”
+ Rs § 40-35 provides, in pertinent part
(a) pov disputed certicn of scnevs representing a clein in favor
pi the Sate pay be paid under protest tee subse accountant of
he cenartnent, boars, forces, comission or other scency of the
= bas ted ‘The protest shall
be in writing, signed by the person waking the payment, cr by the
Person's agent, and shall set forth the grounds of protest. If any
Peyment, or any portion of any payment, ie made under protest, the
Public accountant te whom the payment is made shall hold that
portion of the moneys paid uncer protest ina trust account in the
Etate treasury for 2 periog of thirty daye fron the Gate of
payment
(b) Action te recover noneve paid under pretest of proceedings to
sduudt the claim nav be conencad by the never Or Clsinant -aeainst,
Peete rhe pee i arcane eee ea sna te hireay
Sopropflate -sccsunt in the treasure of the sears be the eesemer ane,
ang the anoint deposited shall thereupon becone a aovernmens
~ Aby action te recover payment of taxes onder protest
Sheil be commenced in the tax appeal court
[Emphases added.)
"ATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
NOT FOR PUBI
under BRS § 661-1 (1992)! (state’s genera} waiver of sovereign
immunity for contract claims), and (b) “HRS § 40-35) was
[HCI’s) exclusive remedy to contest any ORMA fee payments made
by [HHCI] to the (DLNR Defendants].”
on contends that: (1) the circuit court
erroneously dismissed HHCI’s claims on the basis of lack of
subject matter Jurisdiction, because “(HHCI’s] claims sourded in
contract and are cognizable in the circuit court pursvant to HRS
§ 661-11]"s (2) the circuit court erroneously found HRS § 40-35
to be the sole basis of HHCI’s potential remedies, because “(tJhe
remedies afforded by [HRS § 40-35] do not supplant the conmon law
renedies available in a contract dispute over which the circuit
court has subject matter jurisdiction under HRS § 661-117)" (3)
the circuit court erroneously ruled that HHCI's tort claims were
barred by HRS § 662-15(3), because BRS § 40-35 is only a basis
for relief in the tax appeal court, and the ORMA permit fees at
issue are not within that tax appeal court’s jurisdiction; and
(4) HHCI's claims are not time-barred.
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 our
recent decision in Captain Andy’s Sailing, Inc. v. Dep't of Land
and Natural Res., State of Hawai'i, No. 25378 (hereinafter
+ RS § 661-1 provides in pertinent part:
‘the seversi circuit courte of the State snd, except as otherwise
provided by statute of rvle, the several state district coures
Ghall, subject to appeal as provided by Jaw, have original
Suriedsetion te near and determine the follewing matters. -
(2) ALL elaine ageinst the state founded upon... . any
contract, expressed cr implies, with the State .
+++ NOT_ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER **¢
“Captain Andy's"), is controlling.
In Captain Andy's, we held that: (1) HRS § 40-35, when
read together with its legislative history, clearly encompasses
the disputed ORMA permit fees in issue such that it was the
statute under which relief had to be sought; (2) on account of
this alternate remedy at la, the circuit court properly found
captain Andy's Sailing, Inc.'s tort claims barred under HRS §
662-15 (3); (3) HRS § 66
permit under which fees are due is a revocable license, rather
than a contract; and (4) the plaintiff-appellant in that case,
2 is inapplicable because the ORMA
also a passenger-carrying beating company, had not filed @ claim
pursuant to HRS § 40-35 within the 30-day statute of Limitations,
such that any claim made thereunder is time-barred.
Upon review of the record, we find that the instant
appeal involves (1) the same issues as in the Captain's Andy's
case; (2) the same ORMA where the United States District Court
for the District of Hawai'i found that permit fees for that ORMA
were being unconstituticnally assessed as an impermissible duty
of tonnage, see Captain Andy's Sailing, Inc, v. Johns, 195 F.
Supp. 2d 1157, 1174 (D. Haw. 2002); (3) substantively identical
and (4) an expired HRS § 40-35 statute of
ORMA permit:
Limitations, inasmuch as HHCI’s complaint was filed more than one
year after its last alleged ORMA permit fee payment. Because our
holdings in Captain Andy's are squarely on point, we hold that
the circuit court properly granted sunmary judgment in fevor of
the DNR Defendants.
As with the Captain Andy's case, we are not without
sympathy for HHCI’s plight, inasmuch as (1) HHCI alleged that a
++ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **¢
total of $115,022.24 in ORMA permit fees had been paid te DINR,
and (2) an extrenely short statute of limitations within an
admittedly obscure, near-100-year-old statute has effectively
barred 211 of HHCI’s clains for relief. However, we must hold
that HRS § 40-35 unmistakably governs the instant appeal, and
that the DINK Defendants (and by extension, the State of Hawai'i)
cannot be Legally compelled te refund any fees that HEC may have
paid as to that ORMA addressed in Captain Andy's Sailil
Johns, 195 F. Supp. 2¢ 1157 (D. Haw. 2001), notwithstanding the
federal district court's explicit and unchallenged finding that
such fees were unconstitutionally exacted ae applidd to that
ORMA. Therefore,
IT IS HEREBY ORDERED that the judgment of the circuit
court is affirmed.
DATED: Honolulu, Hawai'i, October 26, 2006.
on the briefs:
Dennis Niles, William M. McKeon
and Tom Pierce (of Paul, Johnson,
Park @ Wiles) for Plaintiff- Z
Appellant Holo Holo Charters, Inc.
Mee RLTirane~
Michael Q. Y. Lau, and Sonia
Fassts Deputy Attorneys, General,
for Defendant-Appeliee State of Peutels reudaqor
Cone, Dutiyuth
|
e485c31e-f35b-4129-bb24-df7b37046a3b | State v. Rodrigues. J. Acoba Concurring in the results only. | hawaii | Hawaii Supreme Court | Jie oR PUBLICATION 18 WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *+*
a
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
-— 000 —--
eee
STATE OF HAWAI'I, Plaintiff-Appellee,
RALPH J. RODRIGUES, Defendant-Appellant.
ee
42
a
No. 26678 a
APPEAL FROM THE SECOND CIRCUIT COURT
(CR. NO, 02-1-0729)
NOVEMBER 29, 2006
918 HY G2 A
MOON, C.J., LEVINSON, NAKAYAMA, ANO DUFFY, JJ
BND ACOBA, J. CONCURRING SEPARATELY
OPINION OF THE COURT BY LEVINSON, J.
‘tthe defendant-appellant Ralph J. Rodrigues appeals from
the June 15, 2004 judgment of the circuit court of the second
circuit, the Honorable Shackley F. Raffetto presiding, convicting
him of theft in the second degree, in violation of Hawai'i
Revised Statutes (HRS) § 708-831(1) (b) (Supp. 1998).’ On appeal,
Rodrigues asserts a single point of error, to wit, that, during
its case-in-chief, the prosecution improperly commented on his
alleged assertion of his right to remain silent by eliciting the
fact that Rodrigues declined to allow his voluntary statement to
+ RS § 708-831(2) (b) provides: “(2) A person connits the offense
of theft in the second degree ifthe person commits theft... (b) Of
Crobetty oe services the value of waieh exceeds $300[.]* Béfective July 1,
Bbes°and Suiy i, 2006, the legislature amended HRS § 708-631 in respects
[nmaterial to the present appesl. het 156, 88 € and 8
AETUE0F 2008 Maw, Seon. L. Act 162, 88 9 and 7 at 57
aats
‘104 FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER
police to be audiotaped. For the reasons discussed infra in
section III, Rodrigues’s arguments are unavailing. Accordingly,
this court affirms the circuit court’s judgment of conviction.
‘BACKGROUND
In July 2001, Rodrigues was working as a field welder
for Hawaiian Commercial & Sugar Company (HC&S) on Maui. On July
31, 2001, an HC&S work crew informed Gerard Cambra, the head of
HcgS’s welding shop, that a portable arc welder with a purple
cover mounted on a trailer was missing from where it had been
secured the previous evening. It was the only purple welder HCss
owned and the trailer was distinctive in that it was constructed
of moze expensive stainless steel and was fitted with aluminum
“mag” wheels. The incident was reported to HCsS security, and
the welder was later reported as stolen.
In October 2001, Rodrigues called Benjamin Santiago, an
acquaintance at HC&S who worked as the electrical supervisor in
the power generation station, to arrange to bring to Santiago’ s
shop what he asserted was his personal welding machine in the
hopes it could be repaired. Rodrigues dropped the machine off on
October 23, 2001, whereupon HC&S employees noticed that it
resembled the missing welder and alerted Robert Motooka, HCéS’s
administrator of safety and risk management. Motooka cross
referenced the unit and engine serial numbers on the machine with
those in company invoices for the stolen machine and confirmed
‘FOR PUBLICATION T8 WEST’ § HANAI'T REPORTS AND PACTFIC REPORTER ***
that they matched.? The Maui Police Department (MeO) was
contacted on October 25, 2001. officer John Sang photographed
the welder extensively and then proceeded to Rodrigues’s home to
investigate further, where he located the purple cover of the
welder in Rodrigues’s gara
on October 26, 2001, Rodrigues attended a meeting at
H&S with Motooka to explore how Rodrigues came into possession
of the welder. Rodrigues gave Motooka a statement similar in
detail to the one he later supplied to the police, see infra this
section, except that he told Motooka that he had given the
trailer that accompanied the welder to an acquaintance named
Rey.”
Ian Miyagawa, an acquaintance of Rodrigues’s, later
testified at trial that, during the summer of 2001, Rodrigues had
brought a “brownish” arc welder, unmounted, on a stainless steel
trailer to Miyagawa’s hone to assist in modifying a boat trailer.
Miyagawa identified the welder as the one later determined to be
owned by HC&S, gee supra note 2. Miyagawa testified that
Rodrigues kept the trailer at Miyagawa’s home for at least two
weeks; Rodrigues initially represented that the trailer was on
loan, but eventually stated that he wanted to sell it for
2 Both parties stipulated to the stolen arc welder’s unit and engine
punbers, as well az to the facts that the purchase price of the welder was
$2700.00 end that the replacenent cost was $2865.33. In addition to Motooks’s
festinony, Maui Police Department Officer John Sang took photographs of the
machine Brought in by Rodrigues, which were entered into evidence and bear
Gait and engine nusbere identical to those of the welder reported stolen.
2 though referred to frequently in testimony by Rodrigues, Tan
Miyagawa, gee infra this section, and otfers, there 18 no reference in the
record £0 fey’ full name.
3
‘104 FOR PUBLICATION IN WEST’ S HAWAI' REPORTS AND PACIFIC REPORTER
$1500.00. Rodrigues ultimately sold the trailer for $150.00 to
Rey, who lived on Miyagawa’s street.
On December 19, 2001, MPD Detective Donald Kanemitsu
spoke with Rodrigues in a police interrogation room. Detective
Kanemitsu later testified that Rodrigues was “cooperative” and
“freely providing information.” He advised Rodrigues regarding
his rights to remain silent and to an attorney, as set forth in
Miranda v. Arizona, 384 U.S. 436 (1966), and Rodrigues reviewed
and signed a standard warning and waiver form.'
Detective Kanemitsu testified that Rodrigues stated
during the interview that he and a friend, Shan Kanhai, had gone
to a local store to buy lunch and that Rodrigues had observed a
flyer advertising a used welder for sale for $1500.00.°
Rodrigues told Detective Kanemitsu that he had called the nunber
on the flyer on his cell phone and had spoken with a man
identifying himself as Tony. Rodrigues said that he and Tony had
arranged to meet and that Rodrigues had bargained the price down
to $1200.00 due to the condition of the trailer upon which the
welder was mounted. Rodrigues then told Detective Kanemitsu that
he had taken the trailer -~ which he maintained was not composed
of stainless steel -~ back to his shop at HC&S, where he removed
+ the fu11 chronology of the waiver process is discussed intea in
this section in the context of the voluntariness hearing conducted by the
circuit court with regards to Rodrigues’s statements to Motooka and detective
Keneniteu.
+ hen later asked to confirm Rodrigues’ version of events, Kanhai
testitied that he had no recollection of Rodrigues noticing a flyer pertaining
toa welder and that he dig not recall Rodrigues making any telephone calls
concerning £
06 FOR PUBLICATION IN WES!
WAMAI'T REPORTS AND PACIFIC REPORTER +
the welder from the trailer, salvaged many of the trailer’s
parts, including the spindles,‘ and discarded the rest in a
dumpster. Detective Kanemitsu testified that Rodrigues could not
provide Tony's telephone number,’ but that Rodrigues described
the man as a Filipino male, five foot seven inches tall, weighing
170 pounds, with shoulder length hair, and driving an older
Toyota pickup truck.’ Rodrigués told the detective that he
retained the spindles from the trailer because an acquaintance,
Rey, had expressed an interest in buying them. Further
investigation led Detective Kanemitsu to Rey, who was in
possession of the stainless steel trailer later identified by
Canbra as the stolen HC6S trailer, see infra this section.
After Rodrigues conpleted his statement to Detective
Kanenitsu -- during which time the detective took notes --
Detective Kanemitsu asked Rodrigues whether he would repeat the
statement for him on tape. Rodrigues declined. On January 29,
2002, Detective Kanemitsu again met with Rodrigues, who elected
at that time to retain a lawyer and to make no further statements
to police.
+ According to Detective Kaneniteu’s understanding, a spindle ie a
component of # trailer wheel.
* on cross-examination, Rodrigues confirmed that the call was sade
fon his cel phone and that Verizon wae the carrier, but he did not attempt to
Seeloduce any cell records from that period co bolster his testimony, a fact
the prosecution noted in its closing arguments
+ In nig statement to Motooks, Rodrigues said that Tony had told him
he used to work at Rodrigues, however, never asked
Novoots for acsistance in reviewing HCss’s employment records to bett
Adentify Tony:
‘104 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER +++
on February 1, 2002, Canbra was invited to the Wailuku
Police Station, where, on behalf of HCKS, he identified and
reclaimed the stainless steel trailer taken from Rey's house.
On Decenber 23, 2002, a grand jury indicted Rodrigues
on the charge of theft in the second degree, in violation of HRS
§ 708-831(1) (b), sea supra note 1.
Prior to trial, the circuit court conducted a
voluntariness hearing with regard to Rodrigues’s statenents made
to Motooka and Detective Kanemitsu. Detective Kanenites
testified that he had used a standard warning and waiver form and
had confirmed that Rodrigues understood English. Rodrigues had
read along while Detective Kanemitsu read the form aloud.
Detective Kanemitsu asked Rodrigues to inital after each line to
indicate that he understood, and Rodrigues had done so.
Rodrigues then affixed his signature to the document. Detective
Kanematsu reviewed the “waiver of rights” section of the
document, and Rodrigues initialed each line and signed and dated
it. Rodrigues did not request an attorney, and it was
uncontested that Detective Kanemitsu did not threaten or coerce
him.
on cross-examination, Rodrigues’s counsel questioned
Detective Kanemitsu extensively concerning the procedures
employed in the recordation of Rodrigues’s statement, including
the fact that Rodrigues had declined to allow a tape recording:
0: Detective, you indicated this was not
Nop de was not
And you indicated that it was kind of like
by asking if it was okay if I record it, is that
6
41s FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
a guess?
As standard procedure for myself, when I speak
fo any suspects, oF defendants, or responsibl
I'discues with them first. And then ask then,
Srm going to tape-record this thing. Do you
have any objections =~ whatever?” He did not
Mish to be recorded at the tine.
That’s your recollection?
Yes, itvis
: OKay. You indicated that you made notes. Where
are those notes today?
Nonestiy, T'don't have them, they're from 2001.
Your report that you files in this case was February,
I believe, of 20027
Ie that's’ what it indicates.
i SSthat's che date of the report where you
Signed, and at the end where there was @ Long
List of people in the report that you had
interviewed: On the date of the report, is that
when you transposed the notes
Joumy officiel document, nov When T conduct sy
Investigations, ss I's going along talking to
Sitnesses, Tweite my notes, Actually, T type
Sat my report as I'm going along during my
9:
°
°:
a
°:
investigation.
2: You say you type your report as you're going
along?
a: Yeah:
ak As a particular file for this case
tigation, te that correct?
a: I'believe so, yes.
@: So you usually do it on the day that you =~
Ri Yes, T do.
@: Go the interview? You ever do it sometime
other than the dey of the interview?
fot usually with interviews. I’m not sure I ever
is
have, I would be lying right now if T say I never
have; but I'm saying 1 don't usually do it.
o: So. St could be'a possibility that ix could have been
the following day?
A: Yeah, I guess so.
Q: Okay! And what is your standard procedure for
keeping notes?
Ar Can you clarify that?
@: Okay: You take notes, you type a report from
these notes?
A: Yes
Q: Okay. Is there any reason why you do not retain
the notes?
a: Pauelly doy but this ts a 2001 case.
Exansfer sections and I don’t recall if T have
them.
Q: Bur could it be on file?
‘+4 FOR PUBLICATION JN WEST’ § HAKAI'T REPORTS AND PACIFIC REPORTER *#4
Not in the £20,
‘Yoo say you don't recall if you have then?
Hotes are taken on note pads during investigations or
interviews... . I'm saying that T don’t know if T
have then with'me still
Where would you keep the note pad?
Any document, police related, 1s usually discarded
properly if they're not needed anymore. So that’s
Probably what happened to it
Eksy. And you seeune that they're not needed sf
you transpose the notes in the report?
My official report was conducted.
And have you ever had an occasion where your report,
does not accurately reflect what's in the notes?
Noy 1 have not.
Tn’ that the =~ have the notes ever been made available
with the report to defense lawyers?
Tnever had the need to.
linen you say you never had the need to, have you e
been Fequested for your notes in the past?
Noy I have not.
Never?
How many tines have you testified in a criminal case?
I've boen on the job for over fourteen years, I can't
tell you how often I've been in court.
50 out all of those fourteen years -- T ean as often
a5 you've been in, defense lawyers have never asked
for hancuriteen notes?
Noy they have nots
Tf those notes still existed, where would they exist?
Like T said, they'd be properly destroyed -~ that's
what I believe ha[s] happened to thes. I don’t take
SINT transferred sections —- 1 don’t cake paperwork
that I'don't need to take with me to another section.
stuff, T discard then properly.
Ts there generally a policy in the police department
£5 destroy ail handwritten notes after they’ Fe
EEansposed into a report?
im noe aware,
And how soon after you made the
notes be destroyed?
Tcouldn't say, like I said, I transferred sections
Usually, when You clear out’ your area, that’s when yoo
alscard’ chinge that you don't need. S0\t'm guessing
T transferred to this other unit.
Would you be the one thet would actusily destroy the
notes?
x
port would these
‘At the conclusion of the hearing the circuit court ruled that
Rodrigues “voluntarily, knowingly, [and] intelligently gave the
44 POR PUBLICATION IN MEST’ 8 HANAT'T REPORTS AND PACIFIC REFORTER
statements indicated [to Motooka and Detective Kanemitsu].”
Detective Kanemitsu testified on the same day as part
of the prosecution's case-in-chief, He again addressed the
circumstances of Rodrigues’s December 19, 2001 police interview,
including the facts that Rodrigues had not requested an attorney,
had been briefed fully as to his rights, and had given a full
statement without Detective Kanemitsu having made any threats or
promises or employed any coercion.
‘The prosecution then asked Detective Kanemitsu the
following:
Did you -- after you took Me. Rodrigues" (s)
Statement —- . what is your general practice
Sith reepect to' interviewing individuals under
these circumstances with respect to tape
recording statements?
For myself, basically, T would read then their
Fights, discuss what the case was abouts and
then ask them if they wouldn't ming() having
than <r ‘chelr statenent tape-recorded so
hae
‘Gkay: What was Mr. Rodrigues’ (s] response with
fespict to whether of aot he was okay with the
Conversation being tape-recorded?
fe'y'zecall, be did not wish to be tape-recorded
vou take notes?
(Emphasis added.) Rodrigues concedes that he did not object at
the time to the question or response concerning his refusal to be
recorded.
ta
FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER
On cross-examination, defense counsel picked up the
thread, dwelling extensively on Detective Kanemitsu’s note-taking
procedure:
°:
The notes that you made from the conversation you had
ith tir. Rodrigues in Oecenber of 2001, do you have
Those novea?
Nor T do not.
‘You related that you normally try to
Erangpase the notes into a report on the same day that
you take the notes, is this correct?
Are there instances where you don’t get to transpose
the notes into the conputer until the next day oF [al
couple of days later?
inthe case of me being . . . a Detective, it was
normal practice for ne to type my notes as I've gotten
Statenents or as I get statements. Frior to, ass
patrol man, the day might be draw out where you night
Ealk to several suspects, and you might have to
Okay. “Let ne ast you the question then{,] ae 9
Setectivel,] . «whether there are any’ instances
Where it could be'the [latter]
"go not recall, put it is possibi
« ."[Yiour notes, . + - do you take shorthand?
No, F do not.
Okay. “So's. . you'ze Just trying te Jot down ideas
25 you ~~
T take down primary components of @ statement, T guess
you coule say, or the main what he's actually
Zeliing ney whoever T interviewed.
Okay. ts it'in an outline form or —~
Theze’s no real form £0 st, I guess.
Rodrigues testified the next day and essentially
reiterated the statement that he had given Detective Kanemitsu.
He did, however, contradict Detective Kanemitsu’s testimony
concerning the trailer that accompanied the welder, maintaining
that, when he complained about its run-down condition, Tony had
offered to provide a friend’s trailer upon which Rodrigues could
transport the machine. He testified that, on the day he received
the welder and alternate trailer from Tony, he hoisted the welder
10
166 POR PUBLICATION 11 WEST’ JDWAI'T REPORTS AND PACIFIC REPORTER +**
onto his truck at the HC6S shop, discovering in the process that
the trailer was stainless steel. On the sane day, he chopped up
and discarded a different, older trailer of his own, keeping only
the spindles, and then called Tony to inform him that the
stainless steel trailer could be picked up, whereupon Tony
informed Rodrigues that he could keep it.
During closing arguments, defense counsel again
questioned the accuracy of Detective Kanemitsu’s notes:
T believe Mr. Kanenitex, in taking notes, didn’t hear
Qverything that was being said, Just like the judge
fold you, when you're Listening to testimony, you
know, "don't get so inte taking notes thet you mi
testimony. The statenent that Detective Kenemitau got
ae basically purchased [sic] from Tony for x ancunt
Of dollars and somehow st got to where ~~ and he did
ention old military trailer and spindles supposedly
with T Believe he heard spindles, wrote
5, old ailitary trailer. He seashow got,
jbosed all this into hig notes, whenever
“Zeon notes, wnich we don’t have the benefit of, to
a brie! report, that the spindles ended up with Rey
Father than the trailer-
on April 12, 2004, the jury found Rodrigues guilty of
on June 15, 2004, the circuit court
theft in the second degri
entered a judgment of conviction and sentence.
Rodrigues filed a timely notice of appeal on July 9,
2004.
TT. STANDARD OF REVIEW
If defense counsel does not object at trial to
prosecutorial misconduct, this court may nevertheless
Eecognize such misconduct if plainly erroneous. “We
hay Fecognize plain error when the error committed
affects substantial rights of the defendant.”
99 Hawai'i 390, 405, $6 P.34 692, 707
(2002) (eitations and internal quotation marks
omitted). gaa algo Hawai'i Rules of Penal Procedure
Rale 52th) (2003). ("Plain errors or defects
Atiecting substantial rights may be noticed although
u
‘+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +*+
they were not brought to the attention of the
courts). We will not overturn a defendant's
Ecnviction on the basis of plainly erroneous
Prosecutorial misconduct, however, unless “there is a
Feasonable possibility that the misconduct complained
of might have contributed to the conviction.”
HL Mawas'i 405, 422, 984 P.24 1231, 2238
(i353)
State v. Wakisaka, 102 Hawai'i S04, 513, 78 P.3d 317, 326 (2003).
“(T]he decision to take notice of plain error must turn on the
facts of the particular case to correct errors that ‘seriously
affect the fairness, integrity, or public reputation of judicial
proceedings.’” State v, Fox, 70 Haw. 46, 56, 760 P.2d 670, 676
(1988) (quoting United States v, Atkinson, 297 U.S. 157, 160
(1936)). Nevertheless, this court’s “*power to deal with plain
error is one to be exercised sparingly and with caution because
the plain error rule represents a departure from a presupposition
of the adversary system -- that a party must look to his or her
counsel for protection and bear the cost of counsel's mistakes. ’”
State v. Aplaca, 96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001)
(quoting State v, Kelekolio, 74 Haw. 479, 515, 849 P.2d 58, 74-75
(1993).
TIT. DIscussioN
The Barties’ Arguments
On appeal, Rodrigues asserts that, by refusing to
repeat his statement on tape to Detective Kanenitsu, he was
asserting his right to remain silent.’ He concedes the rule, in
+ This court has recognized that “*having an electronic recording of
all custodial interrogations would undoubtedly assist the trier of fact in
ascerteining the truth.’ such a recording ‘would be helpful to both the
Suspect and the police by obvieting the “swearing contest” which too often
(continued,
12
‘+4 POR PUBLICATION IN WEST’ § KAWAI'T REPORTS AND PACTFIC REPORTER *+*
State v. Alo, $7 Haw. 418, 425, 558 P.2d 1012, 1016 (1976), that
the prosecution may properly inguize on cross-examination into a
defendant's earlier silence if the defendant has created, through
testimony at trial, the impression that he or she has fully
cooperated with police from the beginning and offers exculpatory
testimony at trial. He maintains, however, that, by posing a
question to Detective Kanemitsu on direct examination concerning
Rodrigues’s refusal to make taped statement, a question the
answer to which the prosecution already knew, it was improperly
commenting on his refusal to testify by “seeking to present
evidence of Rodrigues('s] refusal() as a negative inference of
his credibility,” thereby depriving him of a fair trial.
Rodrigues also concedes that he did not object to
the prosecution's inquiry during trials he therefore asks this
court to notice plain error and reverse his conviction. He does
not otherwise contest the validity or voluntariness of the
statement that he gave to Detective Kanemitsu.
‘he prosecution counters that Rodrigues never invoked
his right to remain silent, but merely expressed his desire that
his voluntary statement to police not be memorialized on audio
tapes in other words, the prosecution emphasizes that Rodrigues
never requested an attorney and never informed Detective
*(,. continued)
arises."" State v. Crail, 97 Hawes"
170, 179, 35 2.34 187, 206 (2001),
(quoting state vi Kekona, 77 Hawaii 403, 409, 412, 86 P.24 740, 746, 749
{3534)"(uevinsony J.) concurring and dissenting) |. There 1s some irony,
therefore, in the fact that Rodrigues prevented the police from creating the
Chectronie record that would have sides him in his claims that Detective
Keneniteu inaccurately recorded his statement.
13
‘+4 FOR PUBLICATION IN WEST'S HAMAI‘T REPORTS AND PACIFIC REPORTER +1
Kanemitsu that he did not wish to make any further statements,
only that he would not speak on tape.
B. ona ‘The Record, Rodrigues Invoked His Bi
Remain Silent.
Only two published cases in the nation have dealt with
the question whether refusing to be audiotaped during a police
interview is tantamount to an invocation of @ defendant's right
to remain silent, such that evidence, proffered by the
prosecution, of the refusal is inadmissible at trial. Rodrigues
cites to State v, Woods, 542 .N.W.2d 410 (Neb. 1996), wherein the
Nebraska Supreme Court concluded that “(a] defendant's refusal to
Give a statement constitutes ‘silence,’ regardless of whether the
defendant has previously given a statement to police. As a
result, use of the police officer’s statenent about [the
defendant's] refusal to give a tape-recorded statement was
fundamentally unfair and constitutes a violation of due process.”
Id. at 415 (declaring it erroneous for the intermediate court of
appeals to deem harmless the prosecution's inguiry on direct
examination into whether the defendant had agreed to follow her
voluntary oral statement to police with a taped statement).
In Bally, State, 699 A.2d 1170 (Md. 1997), however,
Maryland’ s highest court perceived no error in a lower court's
conclusion that, by giving a voluntary statement to police but
refusing to allow it to be audiotaped, the defendant had not
invoked his right to remain silent. Id, at 1162 (noting that the
defendant indicated at the outset that he did not want to talk on
tape but was otherwise willing to continue the interview with
4
‘104 YOR PUBLICATION TN WEST! § KAWAI'T REPORTS AND PACIFIC REPORTER ***
police)
Following his refusal to be audiotaped, Rodrigues dic
not retract any part of his statement, nor did he request an
attorney. ie gave no indication that he would no longer speak
with Detective Kanemitsu, but only that he would not repeat what
he had said on tape.
Nevertheless, it is equally true that, having given a
full and voluntary statement to Detective Kanemitsu, Rodrigues
declined to repeat the statement on tape. As far as can be
determined from the record, the interview then ended, and, fron
that point on, Rodrigues did not speak again with police until he
invoked his right to counsel the following January.
The record is not clear as to whether Rodrigues,
following his refusal to be audiotaped, would have willingly
continued to respond to Detective Kanemitsu’s questions had he
been asked any. Nevertheless, the record before us is more
closely analogous to that in Woods, wherein the defendant refused
to follow her voluntary oral statement to police with a taped
reiteration of that confession, 542 N.W.2d at 413-14, than to
Rall, wherein the defendant voluntarily continued his
conversation with police following his refusal, articulated at
the outset of the interview, to be taped, 699 A.2d at 1182.
This court has noted that “*{tJhe mere fact that [a
defendant] may have answered some questions or volunteered some
statements on his own does not deprive him of the right to
refrain from answering any further inquiries until he has
consulted with an attorney and thereafter consents to be
15
‘+4 POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +++
questioned,’" State v. Hoey, 77 Hawai'i 17, 33, 881 P.2d 504, 520
(1994) (quoting Miranda, 384 U.S. at 445). It therefore follows
from the reasoning of Woods that when the questioning of a
suspect is otherwise complete, and the police request that the
suspect reiterate his or her statement in order to memorialize it
refusal to do so amounts to an
electronically, the suspect’
invocation of the right to remain silent precisely because the
suspect is refusing to speak further on the matter. As such,
the prosecution may not adduce evidence at trial, through the
direct examination of the defendant or the police interrogator,
of the defendant’s refusal to make what amounts to a second
statement in order to generate an inference of the defendant’ s
guilt or to impeach the defendant's credibility.
on the other hand, and pursuant to Ball, the mere
refusal at the outset to allow an interview, conducted in
accordance with the requirenents of Mixanda, to be electronically
recorded does not render any part of the suspect's statement
inadmissible. If the refusal to permit the interview to be
electronically recorded is incidental to the suspect's general
willingness to speak with police and answer questions, there is
no invocation of a right to remain silent.
We therefore conclude that Rodrigues did invoke his
right to remain silent, not because he refused to make a
% gy contrast, and by way of illustration, if, at the conclusion of
fan interrogation, a suspect were to decline to make an electronically recorded
Statesent out were otherwise willing to review the substance of the interview
and to assist the police interrogater in clarifying the written notes of the
Conversation, the suspect would net be invoking his or her Fight to remain
Silent because the suspect would not be expressing any wish to do 0.
16
FOR PUBLICATION IN WEST! 8 HAWAI'T REPORTS AND PACIFIC REPORTER *#*
statement on tape, but because that refusal appears to have
caused a termination of all questioning by the police and acted
as a de facto invocation of his right to refrain from answering
further inguiries.
c. the BL Statement Wag Not eon
vas a rule, the prosecution may not comment on a
defendant’s failure to testify.” Wakisaka, 102 Hawai'i at
914-15, 78 P.3d at 327-28 (2003) (citing Chavez v. Martinez, 538
U.S. 760, 768-69 (2003)). Nevertheless, such a comment by the
prosecutor will be deemed improper only “if that comment was
‘manifestly intended or was of such character that the jury would
naturally and necessarily take it to be a comment on the failure
of the accused to testify.’” Id, at 515, 78 P.3d at 328 (quoting
Shate v. Padilla, 57 Haw. 150, 158, 552 P.2d 357, 362 (1976),
also quoted in State v. Valdavia, 95 Hawai'i 465, 482, 24 P.3d
661, 678 (2001); State v. Melear, 63 Haw. 488, 496, 630 P.2d 619,
626 (1981))-
In the present matter, the prosecution merely elicited
the fact, without further comment, that, following a full,
voluntary explanation of how he came to possess the welder and
trailer, Rodrigues declined to agree to an audiotaped reiteration
of his statement to Detective Kanemitsu. On the record before
us, it is apparent that the question was posed, and the
information elicited, as part of the prosecution's effort to
maximize the reliability of Detective Kanemitsu’s recollections
and to explain why the detective could only rely on his notes and
7
FOR PUBLICATION IN WEST! § HAWAI'T REPORTS AND PACIFIC REPORTER +}
not an audiotape of the interview, that is, because Rodrigues
declined to make such 2 tape. And the prosecutor’s question,
part of a line of inquiry designed to establish the detective’s
custom and practice regarding accurately transcribing such
statements, was unaccompanied by any implication of guilt with
respect to Rodrigues’s unwillingness to be audiotaped. cf.
Inited States v, Ortiz, 776 F.2d 864, 865 (9th Cir. 1985) ("Even
Af the prosecutor was in some degree remiss [in commenting on
defendant’s pre-trial silence concerning exculpatory testimony],
the incident would not justify @ reversal. If the statement was
@ comment on silence, it was indirect; no inference of guilt was
suggested.”).
We therefore hold that the information elicited from
Detective Kanemitsu was not “manifestly intended or . . . of such
character that the jury would naturally and necessarily take it
to be a comment on the failure of the accused to testify.”
Wakisaka, 102 Hawai'i at 515, 78 P.3d at 328.
D wever The “C “ts ¢ .
The Present Matter Do Not Justify Invocation Of The Plain
Exror Doctrine.
1 .
Scomnént™ contributed fo the verdict.
Even assuming arquendo that the “comment” elicited by
the prosecution was improper, the prosecutor’s conduct in the
Present matter did not prejudice Rodrigues’s substantial rights
in that there is no “reasonable possibility that the misconduct
complained of might have contributed to the conviction,” Rogan,
91 Hawai'i at 412, 984 P.2d at 1238, quoted in Wakisaka, 102
18
4124 POR PUBLICATION IN MEST’S HAWAI'T REPORTS AND PACIFIC REPORTER
Hawai'i at 513, 78 P.3d at 326.
In deciding whether @ prosecutor's reference in its
case-in-chief to a defendant's post-arrest silence was
prejudicial, the United States Court of Appeals for the Ninth
Circuit, in United States v, whitehead, 200 F.3d 634 (9th Cir.
2000), “consider[ed] [(1)] the extent of [the allegedly
prejudicial] comments made by the witness, [(2)] whether an
inference of guilt from silence was stressed to the jury, and
[(2)] the extent of other evidence suggesting [the defendant’ s)
guilt.” See id. at 639 (citing Guam v. Veloria, 136 F.3d 648,
652 (9th Cir. 1998)). All three factors are pertinent in the
present analysis.
a, The extent of the coment and any inference of
guilt stressed to the iury
Detective Kanemitsu testified extensively regarding his
investigation, including his conversations with Rey and Miyagawa,
as well as the voluntary and cooperative approach taken by
Rodrigues. The comments that Rodrigues now challenges were
sonable line of questioning, and, in
cursory, in response to a r
context, incidental. furthermore, as noted supra in section
IIT.C, Detective Kanemitsu’s testimony did not entail any
inference of guilt from silence on Rodrigues’s part; a
fortiorari, no such inference vas “stressed to the jury.” Id.
b. extent of idence suggesting auil
Rodrigues does not dispute that his statements to
Motooka and to the police were given knowingly, intelligently,
and voluntarily. He had a full opportunity at trial to elaborate
19
FOR PUBLICATION IN WEST’ § HAWAI'I REFORTS AND PACIFIC REPORTER
on the voluntary and willing quality of his cooperation with both
Motooka and the police in the days following the identification
of the welder, to elaborate on the circumstances of the police
interview, to challenge the accuracy of Detective Kanemitsu’s
recollection of his December 19, 2001 statement, and to set
before the jury his version of events.
Detective Kenemitsu testified both that Rodrigues
denied that the trailer he obtained from Tony was composed of
stainless steel and that Rodrigues told him that he had
dismantled it, saving only the spindles. At trial, the testimony
of Canbra, Miyagawa, and Detective Kanemitsu identified the
trailer that Rodrigues brought to Miyagawa’s home as the stolen
stainless steel H&S trailer. At trial, Rodrigues maintained
that he had, in fact, dismantled a different, unidentified
trailer and had kept the trailer supplied by Tony, but conceded
that it was indeed composed of stainless steel. He further
testified that Tony had informed him the day that he had taken
possession of the stainless steel trailer that he could keep it.
Miyagawa testified, however, that Rodrigues told him,
while the trailer was stored at Miyagawa’s house, that it was
only on loan and was to be returned, only later asking Miyagawa’ s
assistance in selling it for $1500.00, Rodrigues denied telling
Miyagawa that he wanted $1500.00 for the trailer, but did not
otherwise contradict Miyagawa’s testimony. The jury was also
aware that Rodrigues never attempted to cull HCéS employment
20
‘+4 FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REFORTER *##
files for Tony’s contact information and that he never requested
call records from Verizon in order to locate Tony's telephone
number.
Given the full opportunity afforded Rodrigues to set
before the jury both his version of events and his explanation of
any inconsistencies between his testimony and that of third-party
witnesses such as Miyagawa and Kanhai, as well as the extensive
testimony of Rodrigues, Cambra, Motooka, and Miyagawa over a
three-day trial, there is no reasonable possibility that the
cursory testimonial statement in question by Detective Kanemitsu
might have contributed to Rodrigues’s conviction.
2. The allesed error did not “seriously affect the
Sere eS pepsin of shtad
A finding of plain error in the present matter is also
unwarranted because the conduct in question does not “seriously
affect the fairness, integrity, or public reputation of judicial
proceedings,” Fox, 70 Haw. at 56, 760 P.2d at 676.
‘The prosecution may properly inquire on cross~
examination into a defendant’s earlier invocation of the right to
remain silent if the defendant has created, through testimony at
trial, the impression that he or she fully cooperated with
police. See Alo, $7 Haw. at 425, 558 P.2d at 1016. In the
present matter, had the prosecution raised the issue of
Rodrigues’s refusal to make an audiotaped statement either on
redirect examination of Detective Kanemitsu or on cross~
examination of Rodrigues, the questioning clearly would have been
21
FOR PUBLICATION IN WEST'S WAWAL'T REPORTS AND PACIFIC REPORTER
allowable as manifestly intended to rebut (1) defense counsel’s
effort to create in the jury the impression that Rodrigues had ”
fully cooperated with the police and (2) the implication (a) that
Detective Kanemitsu’s recollection of the details of Rodrigues’s
statement was inaccurate due to flawed police procedures and,
therefore, (b) that the fault for any inconsistency between
Rodrigues’s testimony and that of the detective should be laid
squarely at the feet of the police.
Correlatively, a finding of plain error is generally
unwarranted where the failure to object at trial is a function of
trial counsel's strategic decisions. See United States vs
Seibert, 121 Fed. Appx. 715, 715-16 (9th Cir. 2005) (concluding
there was no plain error because, inter alia, “without objection,
the trial judge could not know whether the defer
attorney was
purposely withholding objection to objectionable material, in
order to lead the prosecution into something that would open up
useful evidence for the defense”). Nor is plain error produced
where “the appellant’s attorney intentionally elicited the same
testimony on cross-examination,” Pennsylvania v. Howard, 312 A.2d
54, 57 (Pa. Super. Ct. 1974) (refusing to find plain error where
the appellant’s trial counsel “succeeded in repeating on cross-
examination” the testimony now being complained of).
In the present matter, it ig reasonably clear that
Rodrigues’s attorney did not object at trial to the prosecution’s
Line of questioning on the taking of his client's statement
because, as a matter of trial strategy, he hoped to expand on the
issue during cross-examination in order to impeach the accuracy
22
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
of the detective’s recollection, a course defense counsel in fact
pursued via his lengthy interrogation on the subject, see supra
section I.
Accordingly, we do not believe that the present matter
warrants an invocation of this court’s plain error doctrine.
IV. CONCLUSION
In light of the foregoing, this court affirms the
cireust court’s June 15, 2004 judgment.
Gfoen—
Btn ene
Buscar Or oeeeryersm
Gone. daigie
I concur in the result only.
a
On the brief:
Artemio C. Baxa,
Deputy Prosecuting Attorney
for the plaintiff-appellee
State of Hawai'i
Matthew S$. Kohm,
for the defendant-appellant
Ralph J. Rodrigues
23
|
c51be014-c2d4-4f89-a149-6fa64b823223 | State v. Herbert | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26772
IN THE SUPREME COURT OF THE STATE OF HAWAYT)
STATE OF HAWAI'I, Petitioner/Plaintiff-Appeziee,
RODNEY A. HERBERT, Respondent /Defendant-Appeliant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 01-1-0357)
R_REJECT: ATION FOI RABI
(By: Duffy, J., for the court”)
Petitioner/Plaintiff-Appellee State of Hawaii's
application for writ of certiorari, filed ex-officio on
october 26, 2006, is hereby rejected.
DATED: Honolulu, Hawas'4, November 14, 2006.
Arlen Y." Watanabe, FOR THE COURT:
Deputy Prosecuting Attorney,
County of Maui, for a:
petitioner /plaintift— Goren €. Rly
Sppellee on the application Associate Justice
Considered by: Moen, C-J., Levineen, Nakayama, Accbs, end Duffy, OV.
|
70dfd214-e10a-4b08-b085-d1c4d28af7d3 | ONeill v. State | hawaii | Hawaii Supreme Court | No. 27288
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
JOSEPH RANDALL O/NEILL, Petitioner-Appel lant-Petitioner,
vs.
STATE OF HAWAI'I, Respondent~Appellee-Respondent
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(S.P.P. No. 04~1-009K)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Levinson, J., for the court’)
Upon consideration of the application for a writ of
certiorari filed on October 20, 2006 by the petitioner-appellant-
petitioner Joseph Randall O'Neill, the application is hereby
rejected.
DATED: Honolulu, Hawai'i, November 6, 2006.
FOR THE COURT:
eral a iste
Associate Justi¢
Joseph Randel O'Net11, px0 26, 2 8
petitioner-appellant-petitione!, 3
‘on the application Ss 3
=n
ae 2
ag =
He 5
=
&
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Ouffy, J3.
aad
|
e361f1cc-9d2d-434a-b768-c4fd714b7dcc | In the Matter of Water Use Permit Applications, Petitions for Interim Instream Flow Standard Amendments, and Petitions for Water Reservations for the Waiahole Ditch Combined Contested Case Hearing. ICA mem. op., filed 10/13/2010 [ada]. | hawaii | Hawaii Supreme Court | LAW Lorne
‘2+ FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'L
‘o00--~
In the Matter of Water Use Permit Applications,
Petitions for Interim Instream Flow Standard Amendments,
and Petitions for Water Reservations for the Waiahole Ditch,
Combined Contested Case Hearing. al
No, 28108 3
aaw
APPEAL FROM THE COMMISSTON ON WATER RESOURCE MANAGEMENT
(CCH-0A95-01)
12:2 nd 62 Auk suse
Por Curiam.’ This is an appeal from # decision and
order of the Commission on Water Resource Managenent (Water
commission). The appeal was filed after the July 1, 2006
effective date of Act 202, 2004 Hawai'i Session Laws (Act 202)
‘that changed the jurisdiction of the suprene court and the
intermediate appellate court.
We hold that pursuant to Hawai" Revised Statutes (HRS)
$$ 602-57(2) (Supp. 2005) and 602-5(a) (1) (Supp. 2005), quoted
infia, jurisdiction to hear and determine appeals from the Water
connission, filed after duly 1, 2006, is with the intermediate
appellate court, subject to review by the supreme court by
transfer or certiorari.
1. Background
This appeal arises from the Water Commission’ s conbined
contested case hearing on applications and petitions concerning
use of water from the Waighole Ditch system. On Decenber 24,
‘considered by: Moon, C.J-, Levinton, Nakayama, Acoba, and Ouffy, J.
* HAWAII REPORTS AND PACIFIC REPORTER.
FOR PUBLICATION IN WES!
1997, the Water Commission issued its final decision and order in
the combined contested case hearing. On appeal of that decision
and order, we partly affirmed and partly vacated the decision and
remanded seven issues for further findings and conclusions. In
xe se Permit Applications, 94 Hawai'i 97, 9 P.3d 409 (2000). on
remand, the Water Commission determined the seven issues and
issued on December 28, 2001 its findings of fact and decision and
order. On appeal of that decision and order, we partly affirmed
and partly vacated the decision and remanded six issues for
further findings and conclusions. In xe Use Permit Applications,
205 Hawai'i 1, 93 P.34 643 (2004). On second remand, the Water
Commission determined the six issues and issued on July 13, 2006
its findings of fact, conclusions of law, and decision and order.
Notices of appeal from July 13, 2006 decision and order
were timely filed in the instant case on August 11, 2006 by
appellants Hakipu'u ‘Ohana and Ka Lahui Hawai'i and appellant
Hawaii's Thousand Friends. The appeals were filed pursuant to
HRS § 174C-60 (1993),? which authorizes an appeal of the Water
Commission's final decision and order in a contested case. The
appeals were docketed in the appellate court on October 10, 2006
eHRs § 1740-60 (1993) provides:
contested cases. chapter 91 shall apply except where it
conflicts with this chapter, in such a case, this chapter shall
Spply.. Any other law to the contrary notwithstanding, including
chapter $1, any contested case neering under (the State Water
Code) shell be appealea upon the record Girectly to the suprene
court for final decision.
‘OR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER
land were docketed in the supreme court rather than in the
intermediate appellate court because HRS § 174C-60 (1993)
provides for an appeal “to the supreme court.”
TT, Discussion
~The [supreme court and the intermediate appellate
court] shall have original and appellate jurisdiction as provided
by law[.]” Hawai'l Constitution, article VI, section 1, Before
July 1, 2006, the supreme court, pursuant to HRS § 602-5(a) (1)
(1993), and the intermediate appellate court, pursuant to HRS §
602-57 (1993), had concurrent appellate jurisdiction to hear and
determine “any appeal allowed by law from any other court or
agency.” Effective July 1, 2006, the intermediate appellate
court, pursuant to HRS § 602-87(1) (Supp. 2005),? retains
appellate jurisdiction to hear and determine any appeal allowed
by law, but the supreme court, pursuant to HRS § 602-S(a) (1)
YuRS § 692-57 (Supp. 2008) provides:
Durisdiction. [Section effective July 1, 2006. For section
effective until Jone 30, 2006, see main volume.) Notwithstanding
Gay other law to the contrary, the intermediate appellate court
fhall have jurisdiction, subject to transfer as provided by
Section 602-58 or review on application for a writ of certiorari
a5 provides in section 602-58:
1)" Zo hear and determine appeals from the district,
family, and cireuit courts and from any agency
when appeals are allowed by law; and
(2) To entertain, in its discretion, any case
submitted without suit when there is a question
Of law that could be the subject of a civil
faction or proceeding in the circuit court, or tax
appeal court, and the parties agree upon the
facts upon which the controversy depends.
3
{++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
(Supp. 2005),* has appellate jurisdiction to hear and determine
appeals only “by application for a writ of certiorari to the
intermediate appellate court or by transfer as provided by [HRS §
602-58 (Supp. 2005)}." The change in appellate jurisdiction was
“aRS § 602-5 (Supp. 2008) provides:
Jurisdiction and powers) filing. [Section effective July 1,
2006. For section effective until June 30, 2006, see mein
Yolune.] (a) the soprene court shall have Jurisdiction and powers
28 feliows
(2) to near and determine al1 questions of lav, or of
fixed law and fact, which are properly brought before
St by application for a writ of certiorari to the
Incermaaiate appellate court or by trensfer as
provides in this chapter;
(2) Fovanswer, in its discretion, any question of law
reserved by a circuit court, the land court, oF the
tex appeal court, of any question or proposition of
Iau certified tose by a federal district or appellate
court if the suprene court shall so provide by rule;
(3) To exercise original jurisdiction in all questions
arising under write directed to courts of inferior
Jerisdiction and returnable before the supreme court,
ar if the suprese court consents to receive the cast
arising under writs of mandamus divested to public
Gkficers to compel them to fulfill the duties of their
Offices; and such other original jurisdiction as may
be expressly conferred by Law
(4) To issue write of habeas corpus, or orders to show
cause as provided by chapter 660, returnable before
the supreme court of a circuit court, and any justice
hay issue writs of habeas corpus of such orders to
Show cause, returnable az above stated;
(5) To make or issue any order oF wrst necessary oF
appropriate in aid of ite jurisdiction, and in such
case, any justice may issue a writ or an order to. show
cause returnable before the supreme court; and
(6) To make and award such judgnents, decree, orders and
mandates, issve such executions and other processes,
nd to such other scts and take such other stepe a2
ay be necessary to carry into effect the powers which
Bre or shall be given to it by law for the promotion
Of justice in matters before it
(b) ALL cases addressed to the jurisdiction of the suprene
court or of the intermediate appellate covrt shall be fled with
the clerk of the suprene court as proved by the rules of court.
‘The clerk shall maintain the Fecord of each case whether addressed
to the Jurisdiction of the suprene ceurt of the Jurisdiction of
the intermediate appellate court.
4
+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
effected by Act 202. The purpose of Act 202 was
to change the appellate structure of the state courts to require
Sppeals from the circuit coures and decisions of adinistrative
Genesee to be heard by the intermediate sppellate court. Unger
{Ret 202], the Supreme Court will retain original jurisdiction
Gnly in cartein cases ang, in all other cases, will hear appeals
Shy upon acceptance of a writ of certiorari or transter
Spplication from the intermediate appellate court
Hse. Stand. Comm. Rep. No, 672-04, in 2004 House Journal, at
1667. See also Sen. Stand. Comm. Rep. No. 2939, in 2004 Senate
Journal, at 1461 (the purpose of Act 202 is “to require that all
appeals from trial courts and administrative agencies be
submitted to the Intermediate Court of Appeals, subject to review
by the Supreme Court through [] transfer or application for a
wit of certiorari”); Sen. Stand. Comm. Rep. No. 3131, in 2004
Senate Journal, at 1562 (Act 202 amends the appellate process
“ {bly assigning all appeals from the district, family, and
eirevit courts, civil and criminal, and any agency when appeals
are allowed by law to the Intermediate Appellate Court”).
Act 202 amended the jurisdictional statutes for the
supreme court and the intermediate appellate court (HRS §§ 602-5
and 602-87, se¢ supra notes 3 and 2) as described above
and further amended fifty-three HRS sections* that authorize
SwRS $§ 11-51, 40-91, 47-46, 53-6, 91-14, 101-34, 101-52, 124n~
105, 126-24, 1960-8, 2016-57, 2016-58, 232-1, 232-18, 232-22, 232-23,
235/114, 261-13, 269-15, 269°15.5, 269-54, 271-27, 271-32, 271-33,
2716-18, 2716-24, 281-92, 286-60, 377-3, 380-10, 383-41, 363-69, 383-
16, 386-73, 385-73.5, 386-88, 392-21.5, 392-75, /412:2-501, 431 :14-118
a3i:14F-115, 482-9, 485-23, Soi-63, S7i-54, 64-1, 641-11, 641-12,
641-13, 641717, 664-8, 664-25 and 664-36.
5
*#* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
appeals from courts and agencies. Those sections, before
amendment, authorized appeals from courts and agencies “to the
supreme court” and were amended to authorize appeals from courts
and agencies “to the intermediate appellate court”, not to the
supreme court, in accordance with Act 202. The fifty-three
sections supposedly included all HRS sections authorizing appeals
from courts and agencies, but -- as we learned when this appeal
was docketed -- did not include HRS $ 174C-60 (1993) that
authorizes an appeal from a Water Conmission case “to the supreme
court.”
An appeal from the Water Commission is an appeal from
an adninistrative agency for which jurisdiction lies with the
intermediate appellate court pursuant to Act 202 and HRS § 602-
57(1) (Supp. 2005). In enacting Act 202, the legislature
undoubtedly intended Water Commission appeals to be heard and
determined by the intermediate appellate court, subject to review
by the supreme court by transfer or certiorari. In enacting Act
202, the legislature's failure to amend HRS § 174C-60 (1993) to
authorize an appeal to the intermediate appellate court rather
than to the suprene court was clearly an oversight. The fact
that HRS § 174¢-60 (1993) authorizes an appeal to the suprene
court does not place Water Conmission appeals, filed after
July 1, 2006, within the jurisdiction of the suprene court.
Jurisdiction to hear and determine Water Commission appeals filed
6
1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **1
after guly 1, 2006 is governed by the jurisdictional statutes for
the supreme court and the intermediate appellate court, HRS $5
602-5 and 602-57, as amended by Act 202. HRS § 174C-60 (1993) is
inconsistent with those jurisdictional statutes. The
inconsistency is resolved by the provision of HRS § 602-57(1)
(supp. 2005) that states that “notwithstanding any other law to
the contrary,” the intermediate appellate court has jurisdiction
over appeals from “any agency.”
Pursuant to the principle of statutory construction of
amendment by implication, the legislature will be held to have
changed a law that it did not have under consideration while
enacting a later law when “the terms of the subsequent act are so
inconsistent with the provisions of the prior law that they
cannot stand together.” 1A Norman J. Singer, Statutes and
Statutory Construction, § 22:13 (6% ed. 2002). HRS § 174C-60
(1993) is inconsistent with and cannot stand together with HRS $$
602-5 and 602-57, as amended by Act 202,‘ and is deemed amended
by implication, effective July 1, 2006, to authorize appeals from
the Water Commission to the intermediate appellate court, not to
the supreme court.
tups § 1740-60 (2992) 2 alsa inconsistent with HRS § 91-14(b) (Supp.
2005), which, a= amended by Act 202, provides that in agency cases,
Sproccedings for review shall be instituted in the circuit court .’. ., except
where a statute provides for a direct appeal to the intermediate appellate
Court, ‘subject to chapter 602, In such cases, the appeal shall be treated in
fhe some manner a8 an appeal from the circuit court te the intermediate
Sppellate court (.]”
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
THI. Conclusion
Based on the foregoing, we hold that pursuant to HRS $§
602-57(1) (Supp. 2005) and 602-5 (a) (1) (Supp. 2008), jurisdiction
to hear and determine appeals from the Water Commission filed
after July 1, 2006 is with the intermediate appellate court,
subject to review by the supreme court by transfer or certiorari.
The clerk of the appellate court is directed to docket
this appeal with the intermediate appellate court nunc pro tune
to October 10, 2006.
rem
Bic Aeleinae rr
\
Peete Cea Oren
a
Goon 6. Adige +
|
9c9ecd68-b35f-4872-9b79-11751c5d3210 | Captain Andys Sailing, Inc. v. Department of Land and Natural Resources, State of Hawaii. S.Ct. Order Denying Motion for Reconsideration, filed 11/30/2006 [pdf]. | hawaii | Hawaii Supreme Court |
‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
‘000-==
CAPTAIN ANDY’S SAILING, INC., 2 Hawai'i corporation,
Plaintiff-Appellant,
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAI'I;
PETER T. YOUNG, Director of the Department’ of Land and Natural
Resources and Chairperson of the Board of Land and Natural
Resources, State of Hawai'l'; MASON YOUNG, Acting Administrator,
Division of Boating and Ocean Recreation, Department of Land and
Natural Resources, State cf Hawai'i; and DAVID PARSONS,
Administrator, Division of Boating and Ocean Recreation,
Department of Land and Natural Resources, State of Hawai'i,
Defendant s-Appellees.
save
ee
No. 25387
da
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 02-21-0951)
ocToBER 26, 2006 =
MOON, C.J., LEVINSON, NAKAYAMA, ACOBR, AND DUFFY, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
Plaintiff-Appellant Captain Andy's Sailing, Inc.
(hereinafter “CASI"), appeals from the judgment of the Circuit
Court of the First Circuit? (“circuit court”) filed on
September 13, 2002, following the grant of judgment on the
pleadings, or, in the alternative, summary judgment in favor of
Defendants-Appellees Department of Land and Natural Resources,
2 pursuant to Hawai'i Rules of Appellate Procedure ("HRAPY) Rule
43101, (2000), Feter 7. Young has been substituted ee a party te the Snstant
appeal in place of Gilbert Colona-Agaran, in his cfficisl capacity.
‘The Honorable Eden Elizsbeth Bite presided.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER +
State of Hawai'i (“DLNR”) and DINK officials Feter 7. Young,
Mason Young, and David Parsons (hereinafter collectively referred
“the DLWR Defendants"), ail of whom were sued in their
official capacities.’ The circuit court found, inter alia,‘ that
all of CASI’s claims against DINR and the DINK officials in their
official capacities for recovery of $40,682.52 of what the U.S.
District Court of the District of Hawai'i (“federal district
sessed tonnage fees
court”) determined to be unconstitutionally
were barred by Hawai'i Revised Statutes (“HRS”) § 662-18(3)
(Supp. 1999)* because CASI had an alternative remedy under HRS §
40-35 (1993). The circuit court expressed no opinion as to
+ wasen Young was also sued personally.
court else found that CASI"s claine sgsinst Mason
Young in his personel capacity were barred, but it deez not eppear that this
portion of the circuit court's ruling is being appealed. See HAP Rule
Be tp) (a) (2000) ("Points not presented will be dieregergea.”
© the etre
+ ins § ¢€2-28 1iete seven enumerated exceptions to thé State of
Kawase exprese wasver of soverergn inmunity for the tarts of see employees.
Specificelly, ARS S 662-15(3) states that HRS Chapter 662 does not apply te
Sfa}ny claim for wich g renedy 2 provided elsewhere in the laws of the
statel.)”
© Rs § 40-38 provides in pertinent part:
ofthe State nay be caid under protest toa sublic accountant of
hetdscerteent. beard. bores. comission, or other asency of the
‘Sisie with whith the Cleinant has che distite. The protest shall
be inuriting, signed by the person asking the payment, or by the
person's agent, and shall set forth the grounds of protest. if any
Payment, oF any portion of any payment, is made under protest, the
Public accountant to whom the payment is made shall hold that
Portion of the moneye paid under protest ins trust account in the
State treasury fora period of thirty daye from the date of
payment
) cover neneve
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
whether any applicable stetute of limitations had run on @
potential HRS § 40-35 claim.
on appeal, CASI advances three distinct points of
error: (1) the circuit court erroneously dismissed CASI’s claims
on the basis of lack of subject matter jurisdiction, because the
tax appeal court does not properly have jurisdiction over CASI’s
claims; (2) HRS § 40-35 did not divest the court of subject
matter jurisdiction, because “(t]he remedies afforded by [HRS §
40-35) do not supplant the conmon law remedies available in a
contract dispute over which the circuit court has subject matter
jurisdiction under HRS § 661-2"7" and (3) ineemuch as the BLNR
seve
Defendante conceded below that the $40,882.52 in fees a
“were paid pursuant to a contract,” the circuit court erred in
finding sovereign immunity from tort claims to be 8 bar to the
instant case in tote, where CASI had “nade clear that it was
invoking HRS § 661-1 [(waiver of sovereign immunity for certain
fealisaticn. Any action to recover paynent of taxes under protest
Thali be commenced in the ta¥ appeal court.
(Enphases added.)
BRE § 661-1 (1993) provider Sn pertinent part:
The several circuit courts of the state have original
Surieaictien to hear snd determine the following matters
(2) ALL claine against the State founded upon any statute
of the State? er upon any Fegulaticn ef an executive
Gepartment; or upch any contract, expressed or
implied, with the stare
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
is for subject matter jurisdiction.”
) BRS
contract claims)] as 2 bas
Based upon the following analysis, we hold: (
40-35, when read together with its legislative history, clearly
encompasses the disputed fees in issue such that it was the
statute under which relief had to be sought; (2) on account of
this alternate remedy at law, the circuit court properly found
CASI’s tort claims barred under HRS § 662-15(3); (3) HRS § 661-1
is inapplicable because the ORMA permit under which fees are due
is a revocable license, rather then a contract; and (4) CASI has
not filed a claim pursuant to HRS § 40-35 within the thirty-day
statute of limitations, such that any claim made thereunder is
time-barred. Thus, although we are not unmindful of the
ostensible inequity visited upon CASI, we are nevertheless
compelled to affirm the judgment of the circuit court
1. BACKGROUND
A. Background to the Federal Lawsuit!
CASI is @ Hawai" corporation which is, as pertains to
the instant appeal, “engaged in the commercial operation of the
[49-Ipassenger carrying catamaran, Hula Kai, from the conmercial
pier at Port Allen, Island of Kauai, State of Hawai'i.” CAST
+ cast asserted 2 total of five points of error. However,
fourth and fifth pointe of error are duplicative of its third and
points of error, respectively. Thus, we heed not seperately addrers them
+ the federal district court iawsuit involved different cefencants
than in ene instant case. CAST noted that an instrumentality of a state [auch
Se DLR) could net be sued uncer 42.U.5.C. $1983 (2000) (allowing for civil
suits against “persone” for “deprivation cf rights”), which was « stetute
Spparentiy snvoked during the federal litigation. However, since the
Soltinate” defendant for both cases, DLNR/State of Havai'ty ts the sane for
all intents snd purposes, we will use the designation “OLMR Defendants” to
Eefer to the defendants in both cases,
+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
began operating the Hula Kai on or about December 1999, and at
least part of its operation sreas included the navigable ocean
Captain Andy's Sailing, inc.
vs Johns, 195 F. Supp, 24 1187, 1161-63 (D. Haw. 2001). Sometime
waters off Kauai’s Na Pali Coast
in 1986, the State of Hawai'i designated certain ocean waters off
Keuai's Na Pali Coast as an “ccean recreation management area”
(hereinafter “ORMA”). Id. at 1162, The Hawai'i Administrative
Rules (“HAR”) promulgated by DINR provided, inter alia, that
commercial motorboats operating within an ORMA were required to
have a “commercial operating use permit” and be assessed a “use
fee” of $78 per month or 2% of monthly gross receipts, whichever
is greater. See HAR § 11-256-11(a) (3) (1994)."" Hula Kai wes to
operate within the Na Pali Coast ORMA, and so CASI applied for
and was issued @ commercial operating use permit, (“ORMA permit”)
for the craft in duly 2000. Captain Andy's, 195 F. Supp. 2d at
1163. CASI was reissued an ORMA permit for the Hula Kai on
July 20, 2001, effective for one year from its issue. date. Id.
at 1164.
CAST took unbrage with the 28 ORMA permit use fee,
ostensibly because CASI was already paying the State of Hawai'i a
different commercial use fee (1.858 of the Hula Kai's gross
HAR § 313-256-114) (3) provides in pertinent part:
as follows:
Fees required to be peid te the [DLNR) a
(3) Commercial opersting area vse permit fee. A monthly
comercial use permit fee shall be the greater of 575.00 per
Sonth, payable in advance, of Zt of the monthly gross receipts,
The report of gross receipts shall be submitted to and received by
the Geparinent not later than the end of the nenth following the
honth covered by the report and shall be submitted on a form
le te the depertnent
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **¢
revenues}, to the Hawai'i Department of Transportation. For this
and other reasons, CASI filed 2 complaint against DINR in federal
district court on January 20, 2000, seeking to, inter alia, have
sed against the Hula Kai declared an
the ORMA permit fees ass
impermissible duty of tonnage in violation of article 1, section
10, clause 3 of the United States Constitution, which provides
that “[nJo State shall, without the Consent of Congress, lay any
Duty of Tonnage . . . in time of Feace[.J” See Captain Andy's,
195 F. Supp. 2¢ at 1172, CASI continued to pay the required ORMA
permit fees during the pendency of the federal litigation, :
because failure to pay would result in automatic revocation of
the permit. Sse HAR § 13-256-11(b) (1994) ("Delinguency in the
payment of any fees owed to the department will result in
automatic revocation of the {RMA permit] {]").
The language of the Hula Kai ORMA permit issued on July
21, 2000 reads in pertinent part:
1 agree to the following terms, conditions and charges:
1, The permite agrees to abide by a1? Hawas"i Administrative
Fules for shail Best Harbors and the waters of the stave
promslgated by (OUR), for [in the event of) eny violations
Ef the provisions of the aforenenticned roies, in agdition
Eo any Fines or penalties a court cf law may inpoee, this
permit to operate a vessel commercially on the NA BALL COAST
‘OCEAN WATERS nay be rev
The charge for this commercial permit will be the OR fee
of $18.00 per month, ot g¥ of the vessel's gross receipts,
Whichever is the greater
6. The OfWA use charge of $25.00 is due and payable in advance
on the first Gay cf the month in the (SINKS) Division of
Boating and Ocean Recreation office. Not later than 20 days
following the end of the month, the pernitee shall submit to
the Divisicn of Boating and Ocean Recreation 2 report of
gross receipts for the month... . Unless peld on tine,
This: permit MILL AUTOMATICALLY EXPIRE
é
FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER
comercia! permit may be terminated by [LNA] by
tten crcer of ite representative for proper cause ang the
said vessel will cease commercial operations on the MA BALE
SOAST CCE WATERS.
11, The permit charges are for the [DLUR's) cost of regulating
the privilege cf operating this conpercial vessel en the HA.
in the manner stated above. Any
Ether use of barber property and services must be yequested
and approved seperately.
‘Te permit shall nct exceed one (1) year fron JULY 20, 2000
18. The pemitee understand{s] that the captain(s) of said
vessel shall be a representative of Seiad company and that
they shall have the knowledge of all ORMA roles end,
regulations.
(Emphases and underlining in original.) (Some emphases
red.) When CASI renewed its permit for the Hula
formatting a:
Kai for the following year, it was issued a permit with identical
language, except that the words “NA PALI COAST OCEAN WATERS” were
replaced with “THE [ORMA] OF KAUAT.”
The federal district court case eventually proceeded to
a trial on the merits. In connection with the ORMA permit fee
issue, the federal district court found that (1) the ORMA permit
fee had no relationship to any supposed service offered for the
“readily perceptible” benefit of conmercial vessels in the Na
Pali Coast ORMA, (2) “(t]he record is bereft of any evidence
corroborating the existence of any regulatory scheme specific to
the Na Pali Coast [ORMA],” and (3) “there is a complete absence
of accounting for any costs specifically allocable to the Na Pali
Coast [ORMA], including those alleged to relate specifically to
regulating and/or preserving those waters{.)" Captain Andv's,
7
‘+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER,
74 (citations omitted). The federal
© (1) “{t]he ORMA (permit) [flee
195 F. Supp. 2d at 11
district court concluded thi
appears . . . to be @ revenue measure that is used to recoup the
atewide boati
costs of a 19 Program whose many components are
not limited to commercial navigation within the Na Pali Coast
ocean waters{,)" such that (2) “{blased on the overvhelning
evidence, the [clourt finds (DLNR’s} assessment of a [28 ORMA
permit fee) against the ‘Hule Kai’ to be an impermissible tax in
vielation of the prohibition against tonnage duties." 1d. at
1174 (footnote omitted).
The State of Hawai'i did not appeal the federal |
district court's Decenber 28, 2001 ruling, and did not thereafter
assess the ORMA permit fee against the Hula Kai. “However, the
State of Hawai'i refused to refund any of the $40,662.52 in ORMA
permit fees that it had collected until the time of ruling,
despite demand from CASI. The instant state court proceedings
ensued.
C. State Circuit Court Proceedings
1, GASI"s complaint:
on April 17, 2002, CAST brought a “complaint for
declaratory and monetary relief” against the DLNR Defendants in
circuit court. (Capitalization omitted.) Specific jurisdiction
was claimed under HRS § €62-3 (1993). CASI sought recovery of,
2 RS § 6€2-3 provides in pertinent part
The cizcuit courts of the State and, except ax otherwise provided
by statute or rule, the state aistrict courts shall have original
jurisdiction of ali tort actions on clains against the state, for
Roney damages, accruing cn and after July 1, 1957, for injury oF
Toss of property»
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
or, in the alternative, future setoff of, DLNR usage fees in the
amount of the $40,862.52 in Hula Kai ORMA permit fees paid to
DLNR. CASI additionally made the following allegations:
29. At all tines relevant hereto, [the DLNR] Defendants and
theiz predecessors in office were unwilling to allow CASI to pay
Under protest or segregate the disputed use payments, oF allow the
faynente to be deposited with the clerk of the court in [federal
Eletrice court setien) pending @ finsl determination of the
Sonstitutionalsty of the (OAML permit fee]
30. (The DLNR} Defendants and their predecessor
intentieneily ane knowingly tock thse position despite asserting
the position sn the (federal aistrict court actien) that the
Eleventh Anencnent to the United states [Constitution] barred the
federal court fron ordering the state to refund te CASI the ancunt
of the wrongfel sesessnent, citing Edelman v, Jordan, 415 0.5. 681
37. When [DLNR) refused to reconsider its assesomertt of the
ORM (peinit) [flees, CAS! requested a contested case Nearing
furevant to HRS. Chapter $i, which request (the DINR] Defendants
Seated.
As to paragraph 30 of CASI’s complaint, the DLNR Defendants
admitted that the eleventh amendment to the United States
Constitution precluded an avard of money damages against the
State of Hawai'i in federal court.
CASI asserted a total of seven claims in its complaint
(2) “lack of authority” for the DLNR Defendants to assess the
ORMA permit fees under HRS § 200-10(c) (4) (1993),** (2) “unlawful
withholding” of the ORMA permit fees by the “individual” DLNR
Defendants despite demand for their return, (3) wrongful
conversion of the ORMA permit fees such that defendant Mason
Young, acting administrator of the DLNR subdivision that assessed
* BRE § 200-20(c} (4) (2993) reads, in pertinent part
If a veesel ie used for commercial purposes from ite permitted
necting, the permittee shall pay, in lies of the mocrage and
Tveansara fee, 2 fee based of & percentage of the grose revenues
Gerives from the use of the vesse! = = =
°
‘S11 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
the fees, was personally liable, (4) “unjust enrichment and
equitable restitution,” ($) “bad faith and unfair dealing” such
that Mason Young (on this alternative basis) was personally
Liable to repay the ORMA permit fees to CASI, (6) "malicious
misconduct” by Mason Young and co-defendant Oavid Parsons (a DLNR
ocean subdivision administrator) rendering both jointly ahd
severally liable to CASI, and (7) in the alternative, future DLNR
fee setoff for CASI in the amount of the Hula Kai ORMA permit
fees. (Some capitalization omitted.)
2. Gross-motions for judament on the pleadinas/
‘summary iudament”
‘The DLNR Defendants filed their answer to CASI’s:
complaint on May 20, 2002. On June 19, 2002, appioximately one
month later, the DLNR Defendants filed a motion for judgment on
the pleadings, or, in the alternative, for summary judgment
against CASI on all claims (hereinafter “motion for summary
judgment”). As relates to the instant appeal, the DLNR
Defendants argued that (1) as per State v. Figueroa, 61 Haw. 369,
383-84, 604 P.2d 1198, 1206-07 (1979), the State of Hawai'i was
immune from all tort claims asserted under HRS § 662-3 for
recovery of money damages due to constitutional violations, and
(2) in any event, CASI’s claims were specifically barred under
HRS § 662-15(1) and (2)," because (a) the DLNR Defendants were
insofar ge the issues of defendant Mazon Young's personal
bility fer alleged convereion, bad faith and unfair dealing do ct appear
to be raised by CAS! for consideration in this appeal, they are decned weived
in this appeal. See supra nete 4.
“uns § 6e2-18
and (2) provide in pertinent part
Taie chapter shell not apely to
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merely following “existing sdministrative rules,” and (b) the
federal court found the ORMA permit fee to be a “tax.”
on July S, 2002, CASI filed a cross-motion for sunmary
Judgment, asserting, in relevant part, that (1) the ORMA permit
for the Hula Kai was, or in the alternative was tantamount to, an
express contract between the DLNR Defendants and CASI, with an
“implied promise of refund” in the event the contract was illegal
and void," arising from a contracting party's duty of good faith
and fair dealing: and (2) the DLNR defendants owed CAST a “duty
of restitution" arising from their “tortious conver (sicn]" of the
ORMA permit fees. (Empheses emitted.) CASI argued that the
State of Hawaii's sovereign immunity to suit was waived on
account of both HRS § 662-2 (1993) as to tort claims, and HRS §
Any claim besed upon an act or omission of an employee of
the State, exercising due care, in the execution of 3
statute or regulation, whether or not such statute oF
Feguistion is valid, cr based upon the exercise oF
performance or the failure to exercise or perform
Slecretionary fonction of duty on the part of 2 state
cfficer or employee, uhether cr not the discretion involved
has been abused
(2) Aey claim arising in respect of the assessment or collection
of any tox
in Ste eroee-notion for summary judgrent, CAST essentie}ly took
tthe position that the contract was net "seversbie” in sny form, such that the
HeGefsi distzice court's reling en the OR permit fees also rendered the OR
permit (its, an express contract) entirely void and unenforceable.
HRS § 6€2-2 provides as follows:
yy waives ite immunity for Lisbility for the torte
he
of ite employ
Shall not be Lésbie fer interest prior to joggeent or fer punitive
Garager
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
661-1 (1993) as to contract claims.” This wae the first time
that CASI had raised the specter of a contract claim and invoked
HRS chapter 661 as a basis for jurisdiction.
On July 17, 2002, CASI filed its opposition to the DLNR
Defendants’ motion for summary judgment. CASI, inter alia,
“motion for summary
reiterated ite July $, 2002 position on cr
judgnent, albeit more explicitly this time, that “CASI’s claims
sound in tort and contract.” (Emphasis added.)
The DLNR Defendants also filed their opposition to
caSI's cross-notion for summary judgment on July 17, 2002, in
which they pertinently argued as follows: (1) “applying [HRS §
40-35] to [CASI’s] situation, the [ORMA permit fees] refund issue
‘ty-day [statute of limitations} passed
is moct because the tl
long ago and the circuit court lacks jurisdiction over the matter
(the tax appeal court has jurisdiction) []” (while noting ina
following footnote that HRS § 662-15(3) “bars [CASI"s}, tort
claims” on account of this alternate remedy at law); (2) there
was “absolutely no hint in any ORMA permit of an implied promise
that [CASI] would be given a refund if the [ORMA permit fee]
assessment was subsequently determined to be unconstitutional (;]”
(3) the ORMA permit was a valid contract; and (4) CASI's
conversion claim must fail because the ORMA permit fees paid by
HRS § 661-1 provides in pertinent part
the several circuit courts of the State and, except as otherwise
provided by statute or rule, the several ctate district courts
Shall, subject to appeal ae provided by law, have origin:
Jurisdiction to hear end determine the following matters
ALL claine against the State founded upen. . . any
Contract, expressed oF implied, sith the State
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CASI “were never segregated or kept as an intact fund for [CAST
and the fees were never intended to be returned to [CAST] {
This was the first time that the DLNR Defendants had raised HRS §
662-15 (3) and the HRS § 40-35 claim and statute of limitations a
diction and CASI"'s claims in general,
a bar to circuit court jur
bot no objection was made by CAST.
CAST and the DLNR Defendants filed their replies to the
oppositions to the cross-notions on duly 22, 2002. CAST noted in
its reply thet (1) the ORMA permit fees were not taxes and DINK
had no constitutional authority te impose any form of taxes, (2)
contrary to the DINK Defendants’ assertions, the ORNA permit was
an express contract, (3) CAST was actually in compliance with HRS
§ 40-35 insofar as it effectively “paid under protest” and
properly ond tinely initiated suit in “a court of conpetent
jurisdiction,” namely federel disteict court, on January 2000, or
roughly six months prior to the initial issuance of the ORMA
permit on July 2000," (4) in any event, the ORMA permit fees are
not recoverable under HRS § 40-25 because they do not constitute
taxes, and (5) principles of equity require the OLNR Defendants
to refund the ORKA permit fees on account of the OLNR Defendants?
failure to comply with HRS § 40-25 and deposit the disputed fees
into a “itigated clains fund” pending the outcone of the federal
Litigation.
‘The DLNR Defendants asserted in their reply, inter
alia, that: (2) the circuit court should disregard CASI’ s
By
of ite payment cf the ORWA permae fe
Eeteict Zourt Ligigerton conetieute
“payment under protest,” CASI appears to sean that the mere act
Goring the pendency cf the federal
Sone Sort of "esntinving protest.”
1
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contract claims and assertion of HRS § 661-1 as a basis for
jurisdiction inasmuch as neither was raised within CASI’s
complaint, and (2) in any event, CASI “hes not pled that any
express contract requires [the State of Hawai'i] to provide a
refund if the fee assessment was subsequently deemed
unconstitutional (.)”"
Hearing on the cross-motions was held on July 25, 2002,
and the circuit court granted summary judgment in favor of the
DLNR Defendants. It orally ruled as follows:
1 an persuaded that che State has the better argument that
when the theory that you use that was uleinately aueceseful Se,
that this was en inpersiceible tax or 9 fee oF whatever you want
tovcall it that wae prohibited because of the constitutional
prohibition against tonnage duties? then yoo are required to use
Ehe concomitant renedy for obtaining relief agaanst taxes, be they.
higher than they're suppese[a) to be or unconstitutional, and that
would be the statute, HRS Section 40-35.
. . there was nothing, so far as T ¢an tell, to prevent
cast iron} having filed under {HRS §] 4035 and having the matter
ge to Tax Court end having 1itigated it there, altheugh on lanl
Bdaitional secona track {(eic)] and, perhaps, having stayed st
Until the (federal district court] Geesced whatever chey cid-
So my best judgnent ie, it's not that there's no renedy, but
the reneay that i2 available ha to have been timely invoked.
Apparently, the reqairenents cf HRS Section 40-35 were not neti
ahd therefore the Court grants [the DINK Defencante’) motion
‘The circuit court’s August 28, 2002 order granting
summary judgment in favor of the DLNR Defendants read in
pertinent part:
With respect to [CASI's) claims against [the DLNR Defendante] . .
such claims are barred by (HRS) § 6€2-15(3) ‘because
cist] has @ reneay provided by state law, specifically {ike}
40-381.) {CAS] 8 not foreclosed from bringing an ection under
[aRS) § 40-35. “but the [eleurt does not address whether the
Eine hae passed to\ersng such an ection
The circuit court’s final judgment was entered on September 13,
2002, and CASI timely appealed on October 7, 2002.
ua
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I. STANDARDS OF REVIEW
A. Summary Judgment
With respect to review of sunmary judgment, this court
has recently stated:
we review the circuit court's grant or ok
ge neve.” verses ewe A 107 Rawai's
237,°228, Tig pose 73, 71 (2005) (citing Hawai cety. Feds
Gredst Union vi Keka, 9¢ Hawai's 213, 221, 12 P34 3, 8 (2000))
She standard for granting « moticn for summary judgment is well
establisnea:
al of summary judgment
[slunmazy jucgnent is appropriate if the pleadings,
Sepositicns, anewers co interrogatorses, end sdmiscions on
file, together with the affigavies, if any, show that there
Se no genuine sesue ae to any materia fact and that the
moving party se entities te Judgnent ae a matter of law. A
Tact ds'material sf proof of that fact would have the effect,
of establishing cr refuting one of the eseentiol elenents of
f cause of action oF defense asserted by the parties. the
Evidence mort be viewed in the light most favorable to the
Ropvacving party. Jn ether words, we must view all of the
svidence snd the inferences drawn therefrom in the Light
fable to the party opposing the neticn.
carcnae, 107 Hawes" 48, $6, 108 P.36 688, €97 (2008)
(eitstions onitted) (brackets in original)
Orthopedic Assocs, of Hawai'i, Inc. v, Hawaiian Ins, & Guar. Cow
Ltd., 109 Hawai'i 185, 194, 124 P.3d 930, 939 (2005).
Given that the DLNR Defendants’ motion for judgment on
the pleadings, or, in the alternative, for summary judgment
contained three exhibits, including the federal district court’s
findings of fact, conclusions of law and order in Captain Andy's
Sailing, Inc. v. Johns, and also given a variety of other matters
outside the pleadings submitted to (and not excluded by) the
court, the DLNR Defendants’ motion is one for sunmary judgment,
such that this standard of review governs. See Hawai'i Rules of
**+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Civil Procedure (“HRCP”) Rule 12(c) (2000).
Jurisdiction
This court has previously stated that “[t]he existence
of jurisdiction ie 8 question of law that we review de novo under
the right/wrong standard.” Lester v. Rapp, 5 Hawai'i 238, 261,
942 P.2d $02, 505 (1997) (citation omitted).
XII. DIscussrow
We initially note cur agreement with CASI that the ORMA
permit fees at issue, which were collected by DLNR, were just
that -- fees, rather than taxes of any kind. However, the
circuit court nonetheless properly held, albeit for the wrong
reasons, that it was divested of jurisdiction because of CASI’s
failure to seek relief under HRS § 40-35, because the statute
encompasses the ORMA permit fees at issue ae well as taxes.
AL HRS § 40-35
As noted supra, HRS § 40-35 provides in pertinent part:
sfshe state
Enetdevertnent. beard. bureau, comission, or other asenee or the
~The protest shail
Bevin writing, sloned by the person making the payment, or by the
person's agent, afd shall set. forth the grounds of protest. If any
Baynent, Gr any portion of any payment, ir made onder protest, the
Public accountant to whom the payment le made shell hold that
RCP Rule 12(c) provides in pertinent part:
After the pleadings are closed but within such tine es not to
Gelay the trial, any perty ney move for Judgment on the pleadings
If, on a motion’ fer Judgment on the pleadings, matters outeide the
pleadings are presentea to and not excluded by the court, the
Rotion shall be treated as one fer sunnary judgment and disposed
Cf as provided in Rule 56
© $00 Lee v, bette, 61 Mawai's 1, 20.2, 911 F.26 121, 722 0.2
tagee) iguceing Biaxen exaelos, 76 Hanas't 474, ée6, 679 7.20 Sot, Toes
(3994), ‘ane Stace Gauche, 712 How. 235, 240, 618 P.2d 24, 26 (1991))
16
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portion of the moneys peid under protest in a trust account in the
tiem the cate of
(b) Action te reco 2
diust the clain may be commences BY the paver Or Claimant against,
‘Hhe public ecccuntont to whon the samen’ was Gade, ine court of
aos a ton ene cate-or
Ebiment- Ui no suit or proceeding ts Brought within the Thirty-day
Peried, the money paid under protest shall be deposited into ©
Epprepriote account in the treasury of the State by the accountant
Pe the ancunt cepceites shall thereupon becene # governnent
(emphases added.) We initially cbserve that a payer's ability to
make payments under protest “to a public accountant of the
Gepartnent, board, bureau, commission, or other agency of the
State with which the claimant has the dispute” encompasses all
State of Hawai'i inetrumentalities as per the plain lenguage of
HRS § 40-35, and not just the Department of Taxation. We also
note that, as seen infra, the legislative history of HRS § 40-35
makes clear that fees such as the ORMA permit fees are included
within the class of payments to the State from which timely
protest and lawsuit must be made.
HRS § 40:
Hawai's -- specifically, Section 15234 of the Revised Lavs of
5 has its origins in the territorial laws of
Hawai'i, which wae enacted in 1907. See 1907 Haw. Sess. Laws 52~
53, The new statute set up a process by which “{mJoneys
representing a claim in favor of the Territory of Hawai'i may be
paid to a public accountant of the Territory under protest . . «
See id. at 52 (emphasis added). As (1) the term “claim in
favor of the Territory of Hawai'i” was not defined either within
the statute itself or the surrounding chapter, and (2) this term
has remained eesentially unchanged up to the present (the
W
s+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER.
statutory language now reads, “claim in favor of the State”), we
next examine the legislative history of Section 1521A in aid of
interpretation. See £08 Development, LLC v. Murakami, 111
Hawai'i 349, 355, 141 P.3d 996, 1002 (2006) (citation omitted).
A single standing conmittee report as to then-Section
1521A was released by the Judiciary Committee of the Senate in
1907, which reads in pertinent par
[T]he proposed Bill under consideration (Section 2821A)} $2
to provide fer s contingency which sonetines occurs and fer which
no provision is sade. Jt sonetines bacpens that ditferences of
Sxite Letwser, che pooseeeee baspens that a ieereneee oe
Scmetines the simplest ond pert direct way to settle
Seen a contreverey ie for the Citizen to pay the amount claimed
Gneer protest and then fo submit the matter for josietal
secision,
When money is paid under protest under such or i
Unere ie no provision of !aw by which the
may be helo by the Sessurer until the cose is decided, but onder
he present statutes it ss hie duty to earn the money in as a
government reslizstic
‘The cbject of the Bil) is to meet svch cases and provides
rarer nay held the money for thirty daye, anc Lf
wathin that tine action or proceedings ere brought he shail hold
The money s# 8 specsal deposit pending
proceedings cr action is net brought w
Honey shell become s govermment realizat
Sen. Stand. Comm. Rép. No. 72, in 1907 Senate Journal, at 451-52,
that the Tre:
(emphasis added). The legislative history makes clear that the
term “claim in favor of the Territory of Hawai'i,” and by
extension the current language “claim in favor of the State,”
includes precisely the kinds of fees as those assessed by the
ORMA permit, inasmuch a “claim” necessarily includes any “amount
which may be due the Government {.)” See 1907 Haw. Sess. Laws 5:
BRS § 40-35; Sen. Stand. Comm. Rep. No. 72, in 1907 Senate
Journal, at 451-52. Clearly, “amounts which may be due the
Government” includes fees, which are specifically mentioned in
1
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
the legislative history, as well as tex payments. As such, we
hold that HRS-§ 40-25 is the proper avenue for recovery of the
ORMA permit fees.
B. Because an Alternate Renedy at Law was Available to CAST,
HRS § 662-15(3) Acted as a Bar to CASI’s Tort Claims
Because we hold that HRS § 40-35 applied to CASI’s ORMA
permit fee dispute, we also hold that all of CASI’s tort cleins
are barred under HRS § 662-15(3), which unambiguously provides
that HRS chapter 662 (i.e,, the State of Hewaii’s general waiver
of sovereign immunity for tort cleims) is inapplicdble to “Jalay
claim for which a remedy is provided elsewhere in the laws of the
State{.]” (Emphasis added.) The circuit court therefore did not
err in determining that HRS § 662-15(3) barred all of CASI’s tort
C. HRS § 661-1 is Inapplicable to the Instant C:
Permits are Licenses and Not Contracts.
Having determined that CASI’s tort claims are barred,
we next address the question of whether CASI could assert any
contract cleins against the DLNR Defendants pursuant to HRS §
61-1, At the hearing on their respective cross-motions for
summary judgment, CASI end the DNR Defendants were in agreement
that the ORMA permit constituted an express contract. On appeal,
however, the DLNR Defendants assert for the first time that the
ORMA permit is @ revocable license rather than a contract. The
DLNR Defendants, by way of footnote in their answering brief,
explain that
[t]he [DLNR Defendants) acknowiedse{] that [they] previously took
the poestion that the ORMA permit was an express contract
However, the subject matter Jurisdiction question is valid at any
+++ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER,
stage of the case, and appellate courte have the power te correct
errors in juriscsction. [citation enitted.| The appellate court
Se cbiigea te sneure {isic)) that st has subject matter
jurieaieticn, [Citation eaitted.) The Lack of esbject
Jurisdiction cen never be waived by any party at any tin
Icitation omitted]
Although the CLNA Defendants’ change of legal position
is being made at an extrenely late stage of this case, we must
agree with the DLNR Defendants’ assessment of the law. It is
axiomatic that “(t]he lack of jurisdiction over the subject
matter cannot be waived by the parties.” application of Rice, 68
Haw. 334, 338, 713 P.2d 426, 427 (1986) (citation émitted)
(internal quotation marks omitted). And even “[i]f the parti
do not raise the issue, a court sua sponte will, for unless
jurisdiction of the court over the subject matter exists, any
judgment rendered is invalid.” Id. (citations omitted) (internal
quotation marks omitted). Thus, the question of the existence of
jurisdiction “is in order at any stage of the case{.]” Id.
(citation omitted) (internal quotation marks omitted).
In Zerritory vy, Fung, 34 Haw. 52 (1936), the
Territorial Court addressed the question of whether a certificate
of “public convenience and necessity" for a conmon carrier of
passengers on public highways (namely, the Checker Cab Co. of
Hawai'i) was a government franchise (ise., a contract) or mere
revocable license. See Territory v, Fung, 34 Haw. at 53-54.
Fung, the trustee for Checker Cab Co., contended that the
certificate was the former, while the Territory argued that it
was the latter. Id. at 60, The Territorial Court set forth the
following:
X franchise has been defines ae a right, privilege or power of
Public concern, which sught not to be exercised By privete
20
AWAI REPORTS AND PACIFIC REPORTER,
ST
s+ FOR PUBLICATION,
Andividvele at their nere will and pleasure, but should be
reserved for public centre! end sominietration, either bY the
Government cirectly, sr by public agents, scting under such
Sonaitiens and regulations ar the government may inpose in the
pabiic interest, end for the public security." * Uncer cur,
Bysten, their existence and dispose] ave under the control of the
Legislative departuent cf the government, and they cannot be
astuned or exercised without legislative authority. lo private
person can estabiish @ gublic highway, or a public ferry, or
FeilroaG, or charge telie for the use of the sane, without
authority from the legieisture, direct or derived." california
Pocifse Reiircad Co., 127 U. €- ly 40. A governmental License has
Been defines os 2 “enporary permit to do what otherwise would be
Unlawful." Fublée Service Commission, Second Dist. v. Booth, 156
Boye 8. 140, d4i; city ef Goliae ¥. Gill, 1998. W. (Tex. 2166,
dies
1 franchise and a governmentel license differ widely in origin and
Segal cheractersatice. A franchise i# derived fron a grant of the
severeign power. The power conferred emanates from, ane 28 6
fortion of the power ef the government that confers :t.
Governmental 2icense, not ispesea for revenue, has ite
the police power: nceiea et
Eontbects cerestuelif-net-iiniteg or qualified en te cova
Tee tt tarien aR eevetmrental Lucene
ee nt sie sihened ana nore oriviiese: 42 not of
net ness suigedt J
See id. at 60-62 (emphasis added) (some citations omitted) (some
internal quotation marks omitted) (some punctuation omitted); see
also Morita v. Public Utilities Commission of the Territory of
Hawai'i, 40 Haw. $79, 589-90 (1954) (citing the franchise/
‘government license distinction in Fung). While not squarely on
point, the franchise/license discussion is highly instructive in
the instant appeal. In Fung, the Territorial Court determined
the certificate of public convenience and necessity to be a
License, because, inter alia, (1) it granted a privilege, (2) it
was limited in duration (four years), (2) the public utilities
commission was able to revoke the license for cause, (4) the
certificate holder was required to strictly comply with its terms
and conditions, and [5] the certificate was impliedly
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FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER
nontransferable. See Bung, 34 Haw.
Similarly, in the instant case: (1) the ORMA permit
charges were only “for the [DLNR’s) cost of reaulating the
privilege of operating [the Hula Kai] on [the Na Pal! Coast ORYA]
ion No. 11) (emphases added); (2)
«(ORM Permit Provi
the permit had @ duration ef no greater than one year (ORMA
Permit Provision No. 12)7 (3) DLNR specifically reserved the
right to “terminate(]” the ORMA permit “for proper cause” (ORMA
Permit Provisions Nos. 1 and 7); (4) the terms of the ORMA permit
required compliance with “all Hawai'i Administrative Rules for
Small Boat Harbors and the waters of the State promulgated: by
(DNR) (]" (ORMA Permit Provision No. 1); and (5) the ORMA permit
was impliedly nontransferable, in that (a) it was expressly
issued to CASI as to the Hula Kai, and (b) it required that any
and all captains of the Hula Kai be representatives of CASI (ORMA
Permit Provision No. 15). Thus, based on the analysis set forth
in Fung, combined with the lack of any indicia of bargained-for
exchange or reciprocal obligations on the part of DLNR, we agree
With the DLNR Defendants’ position on appeal and hold that the
ORMA permit at issue is a revocable license, rather than a
contract.
Even if we were to assume arquendo that the permit is
void in Lote as being an unconstitutional tax, that does not
change the essential nature of the permit as a license. Put
differently, the federal district court's finding that the permit
was apparently @ general revenue measure, given the lack of any
DLNR regulation and preservation activities in the Na Pali Coast
ORMA, or costs that could be specifically allocated thereto, ace
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IN WEST’S HAWAN REPORTS AND PACIFIC REPORTER *
FOR PUBLICATIO
captain Andy's, 195 F. Supp. 2d at 1173-74, does not transform
the permit into @ contract.
Because the ORMA permit at issue is @ revocable license
rather than a contract, we hold that HRS § 661-1 is not a basis
for subject matter jurisdiction.
D. CASI/s HRS § 40-35 Claim is Barred by the Statute of
Limitation!
We finally address the question of whether CASI may
Inasmuch as
timely bring # claim for relief under HRS § 40.
CASI has asserted that it has timely advanced a HRS § 40-35
claim, albeit only once and by way of reply briefing in ite
cross-motion for sunmary judgment, we must next determine as to
whether CASI has preserved the claim by bringing suit “against
the public accountant to whom the payment was made, in a court of
competent jurisdiction, within thirty days from the date of
payment.” See HRS § 40-35(b).
In order for CASI to possibly be entitled to any
recovery under HRS § 40-35, it would have to have brought suit in
a court of competent jurisdiction within thirty days after its
last ORMA permit fee payment. Inasmuch as the record indicates
that HRS § 40-35 was never at issue in the federal district court
action,* the proper inguiry is whether CASI made a proper and
district court leevit in January 20,
40-35(a), but we find to the
% _caSI clans that its feders
2000 satiefsea the requirenents of i
Etnersry. First, a5 cA? sanite, the ORMA permit for the Hula Ke was not
Sven cbtained untsi 2u1y 2000, about ix months after the federes Litigation
Ecanences. Second, CASI Goes net point cut any evidence that « written and
Signed protest hed ever been delivered to any of the DLNR defendants, much
Seles Ginn poblic sccountant, pricr te snitiating the federal lawsuit, See
ike s'so-a5(a), Third, the recera ie devoid of any indication that HRS § 0
3 ftace statute, was ever invoked ge 8 basis for relief in the federa)
Proceesing|
23
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timely claim under that statute in state court. As per CASI's
fee payment was made on August
complaint, the last ORMA per
2001. However, CASI’s state court complaint was not filed until
April 17, 2002, and the HRS § 40-35 statute of limitations had
expired thirty days after the last payment, ise., sometime in
September 2001. We also note the complete lack of any evidence
in the record tending tc show that CASI had lodged a written and
signed protest with anyone at DINK, much less with a DLNR public
accountant. See HRS § 40-25(a). Moreover, CASI does not assert
that it would have been impossible to have filed a'state court
suit under HRS § 40-35 for recovery of the disputed ORMA permit
fee payments during the pendency of the federal district court
Litigation (e.a., on July 2000, when the Hula’Kai ORMA permit was
first issued, or immediately thereafter, when CASI made its first
ORMA permit fee payments for the Hula Kai). We therefore hold
that CASI is time-barred from seeking relief pursuant to HRS §
40-38.
IV. coNcLUsION
We are not without sympathy for CASI‘s plight, inasmuch
as (1) there is no contract with the DLNR Defendants in dispute,
and (2) an extremely short statute of limitations within an
admittedly obscure, near-100-year-old statute has effectively
barred all of CASI‘s claims for relief. However, we are
constrained to hold that HRS § 40-35 unmistakably governs the
instant appeal, and that the DLNR Defendants (and by extension,
the State of Hawai'i) cannot be legally compelled to refund the
ORMA permit fees, despite the federal district court's explicit
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
and unchallenged finding that such fees were unconstitutionally
exacted as applied tc the Na Pali Coast ORMA. We must therefore
affirm the circuit court's judgment.
on the briefs:
(of Paul, Johnson, Park & Niles)
for Plaintiff-Appellant :
Geptein Andy's Selling, Inc.
Wichael Q.Y. Lau and Sonia Ysa rede
Faust, Deputy Attorneys
General, for Defendant-
Appellee State of Hawai’
‘and Mason Young owe =H
en «.0ndiy dh,
|
61d5d26d-c5ff-447b-8a43-6bd5bf237738 | Cedillos v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
“han
eames
No. 27428 Iz
De somone into ie sae oF ma
iE
MEGHAN R.K. CEDILLOS, PHILLIP H. CEDILLOB|
Petitioners/Plaintiffs-Appellantsy
1190907
DBA HAWAIIAN WINDOK,
vs.
ROONEY HARAGA as Director of the State
nsportation; TOM BUSIC, individually and
STATE OF HAWAT'T,
individually and official
Department of 7:
official capacity; LANCE TAKAYAMA,
capacity; RAYMOND KAPUNIAI, individually and official capacity:
Respondent s/Defendant s-Appel
and
JOHN DOES 1-5; JANE DOES 1-5; DOE CORPORATIONS 1-5; DOE
DOE GOVERNMENTAL ENTITIES 1-5, Defendants.
PARTNERSHIPS 1-5;
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 02-1-0577)
(By: Nakayama, o., for the court)
Petitioners-Plaintiffs-Appellants’ “Statement of
Questions” which the court will consider an application for writ
of certiorari filed on September 18, 2006, is hereby rejected.
DATED: Honolulu, Hawai‘, October 17, 2006.
FOR THE COURT: .
Ro nameyare {*
Associate Justice
Meghan R. King Cedillos
and Philip H. Cedillos,
petitioners-plaintiffs-
appellants pro se on the
application
‘Considered by: Moon, C.J., Levinson, Nakayama, Acobs, and Duffy, J0.
|
4853c74b-c7b5-4988-b3ff-6eb9a94f7880 | Kwiat v. Murakami | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘*** NOT FOR PUBLICATION ***
. No. 26960
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
JOHN S. KWIAT, Plaintiff-Appellant
STANLEY MURAKAMI, STATE OF HAWAI'I; CITY AND COUNTY OF HONOLULU;
Defendant s-Appellees
and
JOHN DOES 1-20; JANE DOES 1-20; DOE PARTNERSHIPS 1-20; DOE
CORPORATIONS 1-20, and DOE ENTITIES 1-20; Defendants-Appellees
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 01-1-0689)
‘ORDER DISMISSING APPEAI
(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 March 11, 2005 that the time
for filing the opening brief expired on February 27, 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, April 12, 2005.
Ir
LiPo
Reece CM aweiey On
er
Crna, Ard br -
|
53d7bef1-b58f-48ca-9168-346a5b23f98b | Diamond v. State, Board of Land and Natural Resources | hawaii | Hawaii Supreme Court | LAW LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAI‘T
=--000---
CAREN DIAMOND and HAROLD BRONSTEIN,
Plaintiffs-Appellants,
STATE OF HAWAI'I, BOARD OF LAND AND NATURAL RESOURCES,
and CARL STEPHENS, Defendants-Appellees..
No. 26997
APPEAL FROM THE FIFTH CIRCUIT. COURT
(crv. No. 04-1-0042)
octoBeR 25, 2006 ty rm
(By: Daffy, J.)
The Opinion of the Court, filed on October 24, 2006 in
the above-entitled case, is corrected by adding the following:
At page 30, end of attorney credits:
Isaac H. Moriwake and D. Kapua’ala Sproat,
for amici curiae Public Access Shoreline
Hawai'i and Sierra Club
IT IS HEREBY ORDERED that the Clerk of the Court is
directed to incorporate the foregoing change in the original
opinion and take all necessary steps to notify the publishing
agencies of this change.
Goren €, Quééer
Associate Justice
|
ede0a715-ad49-4895-9753-a912948732f9 | Garringer v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
ee NOP POR PUBLICATION in WEST'S HAWAI'E REPORTS and PACIFIC REPORTER ***
No. 26447
IN THE SUPREME COURT OF THE STATE OF HAWAT'L:A|E
qa
Ee
RICKY D. GARRINGER, Petitioner-Appellant, E
Yuva
3
3
&
=
vs. g
STATE OF HAWAI'I, Respondent-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.2. No, 03-1-0056)
‘SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, and Nakayama, JJ.; and Acoba, Js,
Concurring separately, with whom Duffy, J., joins)
the petitioner-appellant Ricky D. Garringer appeals
from the February 20, 2004 order of the circuit court of the
first circuit, the Honorable Marcia J. Waldorf, presiding, denying
his Hawai'i Rules of Penal Procedure (HRPP) Rule 40 petition
without @ hearing.
on appeal, Garringer contends that the circuit court
erred in denying his HREP Rule 40 petition by implicitly
Concluding that Apprendi v. New Jersev, 530 U.S. 466 (2000), did
not render illegal his extended term of imprisonment imposed
pursuant to HRS § 706-662(4) (Supp. 1996).
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we affirm the order
of the circuit court.
on March 4, 1991, Garringer was sentenced to life
imprisonment with the possibility of parole with @ ten-year
‘Mo? FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER
minimum sentence. On March 3, 1992 that sentence was affirmed on
direct appeal through this court’s memorandum opinion (Mem. Op.),
No. 15217, 73 Haw. 624, 827 P.2d 1148 (1992). Pursuant to a
previous HRPP Rule 40 petition that resulted in this court's
published decision in Garringer v. State, 80 Hawai'i 327, 909
P.2d 1142 (1996), Garringer was resentenced on August 12, 1997,
to life imprisonment with the possibility of parole with no
mandatory minimum sentence. He appealed the new sentence, which
was affirmed by this court on December 22, 1998 via summary
disposition order (S00) No. 2095S. Apprendi was announced on
June 26, 2000. Therefore, Garringer seeks, through his HRPP Rule *
40 petition, to apply Apprendi retroactively to collaterally
attack his sentence.?
‘This court held in State v. Gomes, 107 Hawai'i 308,
314, 113 P.3d 184, 190 (2005), “that Apprendi does:riot apply
retroactively in this jurisdiction to cases on collateral
attack.” Therefore,
+o the extent that Garringer's appeal alleges that the circuit
court “erred when i enhanced [his] sentence based on facts other than # prior
Conviction” and chat the prosecution ‘when it did not charge in the
indictment and subnit to the jury() the facts ured to enhance [Garringer]’s
sentence,” Garringer argues in substance that uorendi was violated during the
Sentencing process. To the extent that Garringer is generally challenging the
Sentencing court's discretion in inposing the extended sentence of life with
the possibility of parole, that seve has been previously ruled upon in Mem.
Op. No. 15217 and the wentence reaffirmed in S00 No. 20985, Therefore,
pursuant to HRPP Rule O(a) (3), relief s¢ not available. Finally, to the
extent that Garringer argues in his opening Brief that he was not given fair
notice at trial thet an extended sentence was possible, information that ne
alleges might have changed his trial strategy, aside fron failing to explicate
This point through any authority aside from a’ passing reference co the fifth
anendnent to the United states Constitution, he offers no exvenvating
Circumstances as to why the iseue could not have been reised on direct eppeal
of his sentence in March 1991. Therefore, pursuant to #RPP Rule 4O(a) (31+ he
has waived that issue for purposes of the present petition.
2
#44 NOP FOR PUBLICATION in WEST’S HAWAI'I REPORTS and PACIFIC REPORTER *#*
IT IS HEREBY ORDERED that the order from which the
appeal is taken is affirmed.
DATED: Honolulu, Hawai'i, November 6, 2006.
Gow
on the briefs: :
Ricky D. Garzinger, :
pelitioner-eppeiiant, pro as Fea OY Uerrajoes
James M. Anderson,
Deputy Prosecuting Attorney
for the respondent-appellee
State of Hawai'i
|
9fdcb914-a1a9-4748-86f5-9faedcb54599 | State v. Hicks. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000-
STATE OF HAWAT'T, Plaintiff-appellee,
No. 27566
APPEAL FROM THE FIRST CIRCUIT COURT
(cR. NO. 04-1-1824)
DECEMBER 7, 2006
MOON, C.J, LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY MOON, C.J.
Defendant-appellant Gilbert 0. Hicks (hereinafter,
Hicks or the Defendant] appeals from the October 11, 2005
ntence of the Circuit
judgment of conviction and probation
Court of the First Circuit, the Honorable Richard W. Pollack
presiding, adjudicating Hicks guilty of and sentencing him for
the offense of sexual assault in the third degree, in violation
of Hawai'i Revised Statutes (HRS) § 707-732(1)(e) (Supp. 2005),
a former youth
quoted infra. Briefly stated, Hicks
correctional officer at the Hawai'i Youth Correctional Facility
aad
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
(the H¥CF) -- was charged with and convicted of sexual assault
for grabbing the testicles of a minor who was committed to the
HYCE [hereinafter, Complainant]. Hicks was subsequently
sentenced to five years’ probation subject to certain conditions.
on appeal, Hicks challenges the trial court’s denials
of his (1) oral motion for judgment of acquittal made at the
close of plaintiff-appellee state of Hawaii's (the prosecution)
case-in-chief and (2) notion for new trial or judgment of
acquittal made after the verdict was rendered. Hicks maintains
that there was insufficient evidence that the HYCF is a "state
correctional facility" and that Complainant was "an imprisoned
person," as required by HRS § 707-732(2) (e). Specifically, Hicks
argues that the HYCF -- a correctional facility under the
jurisdiction of the Office of Youth Services within the
Department of Human Services -- does not fall within the phrase
"state correctional facility," which term encompasses only adult
prisons and correctional facilities under the supervision of the
Department of Public Safety and that, therefore, Complainant
cannot be said to be "imprisoned." Additionally, Hicks requests
for the first time on appeal a review of the sexual assault
statutes "as they are either void for vagueness or otherwi
violate [his] rights to due process" under the fifth and
fourteenth amendments to the United States Constitution and
article I, sections § and 14 of the Hawai'i Constitution. For
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
the reasons set forth below, we affirm the trial court’s October
a1, 2005 §
with one c
indictment
RS § 707-
(Bold emph
“
judgment of conviction and probation sentence
1. BACKGROUND
on September 15, 2004, Hicks was charged by indictment
ount of sexual assault in the third degree. The
averred that:
on or around the 18th day of January) 2004, to and
Gheluding the 23rd day of January(] 2004, in the City and
County of Honolulu, state of Havai'i, GILBERT 0. HICKS,
‘hile employed in a state correctional facility, aid
Wmowingly subject to sexual contact, (Complainant) , an
inprisoned person, by placing his hand on. (Complaisanc]
scrotum, thereby conmitting the offense of Sexual Asgaule in
fhe Third Degree, in violation of (HRS §) 707-7324) (e) f-)
732 provides in relevant part:
Sexual assault in the third degree. (1) A person
commits the offense of sexual assault in the third degree
ier
ici "Te person, waite employed:
(1) ""ja'a state corrections) facilicy:
(Gb Bye private company providing
2 correctional facility;
(440) By a private company providing comunity
Based residential aervices to person:
committed to the director of public
and having recelved notice of this
statute;
Uv) By'a private correctional facility
operating in the State of Hawai'i, or
(wv) Rea law enforcement officer aa defined in
Section 710-1000(13), knowingly subiecte
‘fo -semial_contact an imprisoned person. a
Berson confined to-a detention factiiey. a
steed £0 the dir
aafety.a person residing ina private
Gorrectional facility operating in the
‘State of Hawaii ox a person in custody.
re gexual
vices at
sety
ia) Setuat assault in the third degree is a class ¢
felony.
8 in original.) (Underscored emphases added.)
qe
undisputed that, at the time of the offense, Complainant wae a
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
minor housed at the HYCF and that Hicks was a Youth Correction
Officer (¥CO) employed by the HYCF.
A. The Tri
A four-day jury trial began on duly 12, 2005.
Witnesses testifying for the prosecution consisted of, inter
alia, @ ¥CO, several former HYCF wards,’ the HYCF’s head nurse
and staff physician, a YCO and Internal Affaire Investigator, and
Complainant. Hicks testified in his defense.
2. Testimony of the Prosecution’ s Witne:
on July 14, 2005, Complainant? testified as to the
incident that formed the basis of the underlying offense against
Hicks:
@. By the prosecutions) I'd 1ike to draw your
atvention tothe week of January 18eh to the 23rd of 2004;
this week, January 18 to the 23rd, 2008
Daring that week, were you house
in Module BP
A. (By Complainants] Yes.
@. Did you experience any painful incident that
week?
Q. here id i happen?
Xi In = when we was (eie] Lning up
for go back to school, in the module.
‘You were inside the module?
Okay. Do you -- approxizately what
tine waa ie that S© happened?
‘About 12:08 er 1210.
Okay. Te this the normal time that you Line up to
go back to sencol?
S Minors housed at the HYCF are referred to as *warde.*
* Complainant testified that he spent a total of approximately aix
months in the HYCF between the age of fourteen or fiftesn and eighteen.
Apparently, the HYCP consists of three modules -- A, B, and C. Complainant
Stated chat he had lived in all three modules; at the tine of the offense,
however, he was housed in Module B
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
©. And who was there? what staff menbers were in the
nodule at the time?
Rohr, Hicks.
Dust tr licks!
@! Mieve were che other warde?
A. waiting in Line, too.
Q. ow did the incident start?
Ri Me bas, like, a verbal conflict,
Like, tatking about -- he told ne to grab'hie dick or his
balls and I'eold hin to grab mine; and, like, a while after,
hhe cane up to me and grabbed mine and grabbed sy ~~ my balls
and my dick and twisted it and -=
Q. Te started with him telling you to grab his dick
or hie baile?
yea
O:_ War be speaking just to you or was he speaking to
wre ust
@. Just te your
@. Kas ‘he ooking directly at your
@! hat dia you think he was -- what did you think
hie meaning was when he said that?
Re ifvm] not too sure. He has his mind of his om.
r{vm) not really ==
@. You weren't sure what he meant?
K. Yean. T'vaen't sure what he meant
Q! Any idea why he would say this co you?
RL oko.
0. Mas he expr
said i to you?
A. Laughing.
@! Laughing. okay. So when you heard him say this,
what did you say back to him?
"Say =” what aid'T say back to him? *why don't you
grab my balls or ick.
ng any emotion at the time that he
6.° 1. and why até you say this back
to hin?
"A. Me was [sic] just joking. 1 thought
we was feicl just joking,
@.” Okay. You just said it back --
Ri Suet tor Iatigh, you know.
Q. Okay. But what did be do
immediately after you said that?
Re. Re walked up to me and grabbed ay
balls and my dick and twisted it.
O: How close were the tuo of you before
=- before he walked up £0 you?
‘A. Maybe, Like, two feet avay.
@. So \how many’ stepe did he take to
before he grabbed you?
A. Tlvm] not too sure.
AL Maybe, Like, two steps
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
0. Two steps. Mow did he grab you?
Ai a grabbed oe with his Fight Rand and
twiated ie up toward the right, Like clockwine kind.
10. Did he grab you through your
clothing?
When asked whether he tried to defend himself during the
incident, Complainant responded negatively, stating that he did
not touch Hicks "[b]ecause it would have been wrong for me to hit
a ¥CO, and I could have gotten in trouble for that."
‘Three former wards of the HYCP, who were present at the
time of the incident, testified to the event between Hicks and
Complainant. They all testified to observing Hicks grabbing
Complainant's testicles while they were standing in line in
Module # to return to school in the afternoon. Further, HYCF
head nurse, Linda Hadley, testified that she examined Complainant
and observed Complainant’s right testicle to be "swollen, red,
and [that he was in] lots of pain." HYCF staff physician, Dr.
Robert Bidwell, also testified that he conducted "a medical
history" of Complainant -- not a physical examination -- and, in
his opinion, the injury was consistent with the explanation
Complainant gave of having his testicles grabbed and twisted.
‘The testimony of YCO Cathy Jean Kaleo Narciel, who has
been employed at the HYCF for six years, revealed that the duties
of a ¥CO consisted of "security[,] custody and control of wards."
She explained that:
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
(The wards) are troubled youths that have been sentenced to
prison and -~ that's basically what it is. They're in jail,
And I’m a correctional officer for the youth
Marciel further stated that
{A Yoo} can be assigned toa sodule [or]... to
Central Control. And'=- well, if you're in the podile, you
normally take the kids to school.
Gential Control is the heart of our facility. rr
‘opens and closes doors and -- it's our security area.
icenérai control contains) four monitors for) five
monitors that view the different modules, outside, inside,
onthe strects. It's all cameras that we have within
Gitterent parte of the facility
injesides watching the monitors, [¥cos assigned to
central Control] release ana -~ [] open and close doors and
watch where everyone's going. That's their job.
She described the morning routine in the modules as "what
normally we do, the routine is we open up each cell door and we
wake them up, tell them, go ahead and clean your room."
linen asked whether the HYCF is a state correctional
facility and whether Complainant was "a minor imprisoned at
HYCF," Marciel answered "yes" to both inguiries. Hicks did not
object to the questions or the answers. Marciel then described
the conversation she had with Complainant the morning of January
29, 2004 when she observed Complainant "holding his groin area":
A. [By Marcel] And, #0, T said, "wnat’e
wrong?” and he said, "I'm sorry. I'gotta see the murge.*
Tsaid, ‘Well, when did this happen?* He goes, "I don’t
know."
T said, "Did you --" 1 asked him if he saw the nurse
last night, and he said yeah. And I said, “Well, just wait
for her to'come up this morning." You know, that’s normal
for then. You know, they wee the nurse twice a day, two OF
three times a day.
Q. [By the prosecution] Did you ask him why he was
hurting in that area?
*
Yes, 1 ia.
What did he tel1 your
He said that "my belle are sore."
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
And 1 said -- 1 said, shat? ® And he said, *Yeah. Hicks
grabbed my Balle." And’ 1 said, "wnat?" Aad then he oad,
Gh. ie was out of playing, oF
Marciel testified that she believed Complainant wae hurting
because *(hle was walking real slow." She also stated that she
was assigned by her supervisor to take Complainant to the
hospital to get checked, Marciel indicated that she "placed
shackles* on Complainant before transporting him to the hospital
and, at the hospital, she had to be near Complainant at all
times, right outside the examination curtain.
Another YCO and Internal Affaire Investigator, Henry
Bell Haina, Jr., testified that he was assigned to investigate
the case of misconduct involving Hicks and Complainant by the
youth facility administrator Kaleve Tufono-Iosefa. when asked
whether Complainant was "imprisoned at [the] HYCF back in January
of 2004," Haina answered in the affirmative. Haina testified
that he narrowed the specific date as to when the incident
occurred to January 21, 2004 by reviewing
the reporting of the incident; the statenent of
[complainant] as to how long he wae in pain and the tine
elenent between it and the reporting to Cathy Marciel and
The medical unit; going back and looking at sign-in eheste
fand figuring out when Mr. Hicks wae on duty [in Module 8]
As previously testified by Marciel, Haina explained that there
are four cameras in each nodule and one outeide the door for a
total of five caneras for each module. Using the January 29,
2004 videotape of Module C, entered as State’s exhibit 7, Haina
further described what each camera looks at, including the YCO
*#* FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
desk and the inside of the entrance door to the module. Haina,
however, testified that the January 21, 2004 videotape was not
preserved.
on cross-examination, the following colloquy occurred:
ignment ~~ oF
0. thy the defense counsels] Your
you were assigned by Ms. Faleve Tufono-lose!
{By tiainatl Yee, sir,
BU The tas the <- he's the adeinistrator?
Youth Facility Administrator,
yer?
also used the word "warde
interchangeably.
‘pangeab)y eeyday conversation’s sakel,] you could call
ner the wardens, She fs the top person at the facility:
S.Shur perhaps "VFA" is he more correct term, more
‘Ay That ig the actual Fitie.
6." fino de Ma. Tosefa accountable to? ra there
ve shove MSIE, sharon Agnew, the executive director.
3, Executive Director of Youth Services?
AL Yes, sir
2: ASS" ehe oversees not just the youth correctional
eactitly, bur other <= 1 guess, other programs within the
Eefice of Youn Services; correct?
Ay Yee, pir
a: X88" sgnew Je accountable to [the] Director of
muman Services?
Bor believe £0.
hrough the testimony of the prosecution's witnesses,
che prosecution admitted as exhibits, inter alia, photographs of
the secured cell doors within Module B and the January 29, 2004
video of Module ¢, showing the wards in orange prison type
unifores Lined up at the security door in front of Hicks, who was
dressed in a YCO uniform.
2. Motion for Judgment of Acquittal
At the close of the prosecution's case, Hicks orally
moved for judgment of acquittal:
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Your Honor, the [prosecution] having completed ite
evidence, the defense soves for Judgnent of acquittal. They
have not ‘established a prima facle case. specifically, they
need to prove that (Complainant) was imprisoned. the’ {HYC#|
under the jurisdiction of the Deparcnent of jiuman
vices, ‘ot the Department of Public satety, and? don't
think it’s been established that the [SYCF] ie a prison,
Buch that (Complainant) was in prison at the tine of tho
Alleged incident. So ve would submit there's been a feilure
f= there should be judgnent in favor of the defense
In response, the prosecution argued tha
Our argunent is that we did establish that, that one
witness in pareicular testified directly to that demue, that
he isan inprisoned minor at (che) HYCP. ‘I believe there's
more than one witness, Your Nonor, that testified co that,
effect.” There's no requirement that we bring in someone
from the Department of Munan Services or the Department of
Public Safety to say that. It doesn't say chat we have to
have anyone in particular testify to that. And, #0, it may
go to wight ifvhe vanes to argue that Se’s not imprisone
Bur ir cereainily dooen't, at this stage in the proceedings,
constitute « lack of prima facie proof.
Thereafter, the trial court orally denied the motion for judgment
of acquittal, stating that:
Looking at the evidence in the light most favorable to the
government and draving a favorable inference thereto, the
Telourr believes @ prima facia [eic] case bas been
established.
3. Hicks’s Testimony
on July 14, 2005, Hicks testified that he has been
working as a YCO at the HYCP since 1980. In January 2004, Hicks
stated that he worked in Module B and typically worked the
midnight shift; however, on January 21, 2004, he worked from 6:00
a.m. to
0 p.m. Hicks, however, denied any contact with
Complainant on January 21, 2004:
Il, ses, Hicks) have 2 recollection that st{, i.e.
vanuary 21,°2006,] waa a normal day. The -- t can't say it
vas anychiog out’ of the ordinary that particular day. The
wards lined up for school; 1 did my head counts; they went
to school; they cane back{.]
-10-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
When asked whether he remembered Complainant specifically during
his shift, Hicks responded that:
We was in the module; but I don’t renenber personally,
Like, How'you doing, [Complainant]? Because that’ was the
first -- he was new tome that day. That was the First tine
[had seen (Complainant] in that month. If he had been
there earlier, 7 don’t remenber.
Hicks maintained that’ January 21, 2004 was the only time he saw
Complainant because it was the only day in January that he worked
the day shift.
Moreover, Hicks described the scene on the January 29,
2004 videotape, in which he clained that he was the person being
harassed:
As you can see (from the videol, the wards -- the
wards cone Back to bother ne, to say things tome, to —
they know 1 can't physically touch them and all T'can do is
give then 2 day suspension. 50, Hey —- this and that. They
Zan say almost anything they want, and they do that to get
inte your head, 0 Bother you, fo make you do things.
Basically, T just ignore it.
Re you can see right there (indicating), same
sane = the sime View, ‘The wards beve Co -- this’ ie what
you call a safe area, and they are standing on the outeide
Of the square. So, in case of 2 code red or seeing where
Tre attacked, which is called
door and let" and lets me cut.
‘haven't ete that area.
on crose-examination, Hicks was asked whether it was
true that, if a ward touches a YCO in an offensive manner, he can
be disciplined, Hicks answered that "[t]hey’re already in jail."
4. The Verdict
on guly 15, 2005, the trial court instructed the jury.
‘The relevant instruction was based on HRS § 707-732(1) (e) and the
definition of "sexual contact" set forth in HRS § 707-700 (Supp.
2005):
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The (DJefendant, Gilbert Hicks, is charged with the
‘Assault in the Taird Degree. A person
ise of Sexual Assault in the Third Degree if
smployed in a state correctional, knowingly
subjects to sexual contact an imprisoned person,
‘There ave four material elements of the offense of
Sexual Assault in the Third Degree, each of which the
Prosecution mist prove beyond a reasonable doube. These
Pour elenence are
2) That on or about August 18th, 2008, to and
including January 23%, 2004, in the city and county of
Honolulu, state of Hawal'i, the [D]efendant subjected
[Complainant] to sexual contact; and
2) That the [DJefendant did so while (Complainant) was
imprisoned; and
3) That the [Dlefendant did so while the (D]efendant
was employed in a state correctional facliiey, and
3) That the [D]etendant did so knowingly,
Sexual contact means any touching, other than acts of
sexual penetration, of the sexual or other intimate pares of
2'person not married to the actor or of the sexual of other
Intimate parte of the actor by the person, whether directly
or through the clothing or other maverial intended £0 cover
the sexual or other intimate parts.
That same day, the jury returned its verdict, finding Hicks
guilty of sexual assault in the third degree.
B. Motion for New Tri eal
on duly 25, 2005, Hicks filed a motion for new trial or
judgment of acquittal (motion for new trial), pursuant to, inter
alia, Hawai'i Rules of Penal Procedure (HRPP) Rules 29 (motion
for judgment of acquittal) and 23 (notion for new trial) (2005).
Hicks maintained that the prosecution had not proven every
element of the offense; specifically, Hicks argued that the
prosecution did not present substantial evidence that Complainant
was an imprisoned person, Hicks contended that a juvenile ward
is not a "prisoner* in the
of the Department of Human Service:
custody of the Department of Public Safety:
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Be de not disputed that [aldult prisons and
correctional facilities are Under the Jurisdiction of the
Department of Public Safety. The [NYCF], where
[Complainant] was confined, fails under the Jurisdiction of
fhe Office of Youth Services within the Department of Munan
rrvices:
cution filed its
on August 17, 2005, the pros
menorandun in opposition, arguing that substantial evidence was
adduced that Complainant was imprisoned at the HYCF, pointing
specifically to Marciel’s testimony that the HYCF is a state
correctional facility and that Complainant was a minor imprisoned
at the HYCF, The prosecution further asserted that:
‘me rules of statutory construction indicate chat the
undefined phrase, ‘imprisoned person,” sust be read to bear
Tee common, ordinary or usual eaning. Giga HRS § 1-14
Webster’ s Collegiate Dictionary, sth
‘ean Neritage On-line Dictionary,
e Neo put in or as if in prison; contine.*
According to Random Kouse Webster's Dictionary, 3r@ edition,
Page 362, "imprison* meana "eo confine in or ao if ina
Brison.*\ None of these common, ordinary and sual seanings
BE simprison can be interpreted to exclude Juvenile innat
Confined ina youth correctional facility.” Hor do these
Conon, ordinary and tsual seanings of “imprison draw a
Gierinéelon between the confinesent of adults under he
Department of Public Safety and the Confinenent of children
Under the Department of Munan Service
Statutory construction rules also dictate that
lundefined words should not be given meanings that lead to
absurdity cr inconsistency, The penetration statute, HRS
$ 1707-731 seexual assault in the second degree," contains
Ene ane language in igsue.” It would be absurd to believe
thet the legislature intended to punish guards for sexual
penetration and sexual contact with adults confined in a
Sorractional facility Like (ehe Oahu Conmunity Correctional
Genter] under the supervision of the Department of Public
Safety, but to allow guards to have sexual penetration and
yrual contact with juveniles confined in a correctional
Escility like [ehe] #YCF under the supervision of the
Departnent of Hunan Services. This absurd result would be
Gnconaistent with the overall statutory schene for sexual
offense, which evidences a strong legislative intent to
Provide more, not leas, protection for minors against
Sefenders
cual
(citations omitted.)
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on August 18, 2005, the trial court held a hearing on
the motion for new trial, at the conclusion of which the court,
persuaded by the prosecution's arguments, orally denied the
motion, A written order was filed on September 2, 2005. In eo
doing, the trial court entered the following findings of fact
(POFs) and conclusions of law (CoLs) +
emmmvas oF Fact
2. The (plrogecution, in ita case at exial, presented
witnesses who testified chat the [HYCF] isa ‘state
Correctional facility and that. (Complainant) was a ward,
Confined and imprisoned at [the] HYCF at the time of the
offense.
2! the testimony and evidence presented by the
se at trial, did not disput
Detense, in it
SONCWUSIONE OF LAW
2. The specific language of the Indictrent alleges
‘that the Defendant, while employed in a state correct ional
facility, aid knowingly subject to sexual contact,
(Conpiainase], an *inprisoned perso!
2. "the phrase "imprisoned peraon" is not defined in
the statute or in any other velevant part of the Hawal't
Penal code.
3 Smeve the atatute does not provide @ legal
@etinition for a word or phrase, the court must lock to ite
common, ordinary or usual weaning.
4. "Merriam Webster's New Collegiate Dictionary, 10th
edition, defines the word "imprison" as "eo put in oF as if
in prison; confine.
smple and substantial evidence chat
‘confined" person at a state
correctional facility and vas held in or as if in prison.”
6. The language on the face of HRS §707-73211) fe) (2)
does not eupport the Defendant's legal argunent that the
‘applies only to adulta confined
7: HRS. § 707-732(2) (e) (2) states that 2 person
commits the offense of sexual assault in the third degree if
the person, while employed in 2 state correctional facility.
knowing subjects to sexial contact an isprisoned person, a
person confined to a detention facility, a person committed
fo the director of public safecy, a person residing ina
private correctional facility operating in the state of
Haval's, or a person in custody, or causes the person to
have sexual contact with the actor.
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8. There is nothing in the language of Has § 707~
792(2) (2) (1) “that indicates a legislative intent to exclude
Hon the meaning of "imprisoned person* a vara confined or
imprisoned ina state correctional facility, like [ehel
myer.
9. ven Af the [clourt were to accept the Defendant's
argument that the distinctions between adult criminal
proceedings and juvenile delinquency proceedings create an
webiguity a2 to whether a juvenile can be congideres an
imprisoned person,* any potential ambiguity is resolved by
HRS chapter 452, entitied *Hawal'l Youth Correctional
Pacilicies."
$o, HRS § 352-2.2(a) state, "{t]hie chapter creates
within the department of human services and tobe places
“thin the office of youth services under the supervision of
the dizector and auch’ other subordinates as the director
shall designate, the Hawai'i youth correctional facilities,
inorder to provide for the incarceration, punishmest, and
inetivstional care and services to reintegrate into their
Communities and families children committed by the courts of
the Star
I.” Merriam Webster's New Collegiate Dictionary, 19th
edition, defines "incarceration" in essentially the sume way
St defined "imprigon," that is, "to put in prison; to
Subject to confineneitt.*
S2\° Se"theretore appears clear that notwithstanding
any differences between aduit criminal and juvenile
delinquency proceedings, the legislature views juveniles
Confined to a youth corvectionsl facility as incarcerated or
Inprisoned persons
{b.) Et would algo be incongruous to interpret HRS
§ 707-733 (2) (e) (1) dn a manner that provides incarcerated
Adulte vith protection against sexual assault by
Correctional officers but denies the sane protection to
Uncarcerates ehilaren.
(auphasis and brackets in original.)
c. nt of Convic wobation Sentence
on October 10, 2005, Hicks was sentenced to five years’
probation subject to certain conditions, including a ninety-day
jail term to be served on weekends in alternating increments
beginning Friday or Saturday. The judgment of conviction and
probation sentence was filed the next day. On October 24, 2005,
Hicks timely filed his notice of appeal with the circuit court.’
> Hawai'i Rules of Appellate Procedure (HPAP) Rule 4(b) (2005) provides
in relevant part
(continued...)
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II, STANDARDS OF REVIEW
A. Motion for Judoment of Acquittal
‘The standard to be applied by the trial court in
ruling upon a notion for a judgnent of acquittal is whether,
tipon the evidence vieved in the light nost favorable to the
prosecution and in full recognition of the province of the
Erier of fact, 2 reasonable mind might fairly conclude guilt
beyond a reasonable doubt. An appellate court employs the
seme stanasrd of review.
State v. Maldonado, 108 Hawai'i 436, 442, 121 P.3d 901, 307
(2005) (citation omitted) (format altered).
B. Motion for New Trial
"(T]he granting or denial of a motion for new trial is
within the sound discretion of the trial court and will not be
disturbed absent a clear abuse of discretion." state v. Yanada,
108 Hawai'i 474, 478, 122 P.3d 254, 258 (2005) (citation
ed that an abuse of discretion
omitted). It is well-establie!
occurs if the trial court has "clearly exceed[ed] the bounds of
reason or disregards rules or principles of law or practice to
the substantial detriment of a party litigant." id, (citation
omitted) .
2s continued)
(2) TIME AND PLACE OF FILING. In a criminal case, the
notice of appeal thall be filed in the circuit, district, oF
family court within 30 days after the entry of the judgnent
or order appealed fron.
(2) EEPECE OF pOST-JUDGMEUT MOTIONS. 1 a timely
motion in Srrest of judgment under [MRP] ‘Rule 34 or
for a new trial under (HRP?) Rule 33... . has been wade, an
appeal from a judgnent of conviction may be taken with
Gays after the entry of any order denying the notion
Waderscored exphases and capitalization in original.)
Algo, in his opening brief, Hicks indicates that he did not post bail
pending appeal and is in compliance with all terms and conditions of
robation:
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Furthermore, at a hearing on a motion for new trial,
the trial court acts as the trier of fact. State v. St, Clair,
102 Hawai'i 280, 267, 67 P.3d 779, 786 (2003) (citation omitted).
In thie Juriediction, a trial court’s rors are aubject to
the clearly ervoneous standard of review. aa FOP is clearly
erroneous when, despite evidence to support the finding, the
(ppellate court Se left with the definite and firm
Conviction that a mistake has been committed, And where
Ehere ie substantial evidence, whlch is credible evidence of
Sufeicient quantity and probative value to justify a
Teasonable person in reaching conclusions that support the
bors, the fers cannot be set aside. Moreover, an appellate
Court will not pase upon issues dependent upon credibility
Se witnesses and the weight of the evideace; this is the
province of the trial judge.
Id. (citations, internal quotation marks, and brackets omitted).
A trial court's conclusions of law, however, are reviewed de
nove, under the right /wrong standard of review. State v. Kido,
109 Hawai'i 458, 461, 128 P.34 340, 343 (2006).
©. Constitutional questions
‘The constitutionality of a statute is a question of
law, which is reviewed de nove, under the right/wrong standard.
State v. Friedman, 93 Hawai'i 63, 67, 996 P.2d 268, 272 (2000).
vWe anewer questions of constitutional law by exercising our own
independent constitutional judgment based on the facts of the
case." Id, (citation and internal quotation marks onitted).
D. Statutory Interpretation
"the interpretation of a statute is a question of law
reviewable de novo." State v. Kalani, 108 Hawai'i 279, 283, 118
P.3d 1222, 1226 (2005) (citation and internal quotation marks
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omitted). rt is well settled that our foremost obligation when
construing a statute
Le to ascertain and give effect to the intention of the
legisiature, which ig to be obtained primarily rem the
Language contained in che statute iteelf. And ve must read
statutory language in the context of the entire statute and
Construe st in a manner consistent with ite purpose
Id. (citation omitted).
TIT. DISCUSSION
on appeal, Hicks argues that: (1) the prosecution
failed to adduce sufficient evidence that the HYCF is a "state
correctional facility" and that Complainant was an "imprisoned
person," as mandated under HRS § 707-732(2) (e); and (2) the
lt statutes are unconstitutional. Accordingly, Hicks
sexual
urges this court to reverse his conviction or remand for new
trial. gach of Hicks’ contentions is addressed in turn.
A, Sufficiency of the Evidence
‘This court has repeatedly announced that, when passing
on the legal sufficiency of evidence to support a conviction,
evidence adduced in the trial court mist be considered in
the strongest light for the prosecution when the appellate
court passes on the legal sufficiency of such evidence £0
fupport a conviction; the same standard applies whether the
case was before a judge or a jury. ‘The test on appeal is
hot whether guilt is established beyond a reasonable doubt,
but whether there was substantial evidence to support. the
Conclusion of the trier of fact.
State v, Viglielmo, 105 Hawai'i 197, 202-03, 95 P.3d 952, 957-58
(2004) (citations omitted) (format altered). "Substantial
evidence" is "credible evidence which is of sufficient quality
and probative value to enable a person of reasonable caution to
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support a conclusion." state v, Fone, 78 Hawai'i 262, 265, 892
P.2d 455, 458 (1995) (brackets, internal quotation marks, and
citations omitted) «
Hicks maintains that the trial court erred in denying
hie oral motion for judgment of acquittal and his motion for new
trial because the prosecution presented insufficient evidence
that the HYCF is a "state correctional facility" and that
complainant was an "imprisoned person." Hicks specifically
argues that ‘no representative of the facility administration or
Department of Human Services testified to the character of the
HYCF or legal atatus of the minor wards." Thus, Hicks asserts
that "[e]haracterization of the facility as a prison by lay
employees and the wards does not suffice to establish that
[complainant] was imprisoned.*
As quoted gupra, HRS § 707-732(1) (e) provides that a
person commits the offense of sexual assault in the third degree
if
(e) the person, while employed:
(1) "ina etate correctional tacility()
__towingly aubjecte to sexual eontact
a person confined to
S'Usteation facility, 3 person comiveed
to the director of publie safery, a person
Hesiding in a private correctional
facility operating in the state of
Hawal'l, or a person in custody, or causes
the person to nave sexual contact with the
actor {el
(Emphases added.)
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1. The HYCP as a "State Correctional Facility”
Hicks appears to argue that the HYCF does not fall
within the phrase "state correctional facility" because a youth
correctional facility -- like the HYCF -- is separate and
different from "the prison system." Hicks asserts that, "[iln a
juvenile facility[,] the focus is on rehabilitation." He also
asserts that "(t]he Department of Public Safety controls jails
and prisons while the Department of Hunan Services is responsible
for juveniles." Accordingly, Hicks submits that "adult prisoners
and juvenile warde" are not "the same for purposes of sexual
assault." In other words, Hicks implicitly contends that only an
adult state correctional facility under the supervision of the
Director of Public Safety can be a "state correctional facility."
‘The phrase "state correctional facility® is not defined
Penal Code, i.e., HRS chapter 701 to
anywhere in the Hava
chapter 712A, including the pertinent definition section of HRS
chapter 707, which containe the sexual assault statutes. Hicks,
thus, urges this court to limit the meaning of the subject phrase
essentially to only adult correctional facilities -- and not
juvenile facilities. Such restriction, however, is inappropriate
in light of the “general principles of statutory construction"
that ‘courte [are to] give words their ordinary meaning unle:
something in the statute requires a different interpretation."
Saranillio v. Silva, 78 Hawai'i 1, 10, 889 P.2d 685, 694 (2995)
(citation omitted); gee also HRS § 1-14 (1993) (*The words of a
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law are generally to be understood in their most known and usual
signification, without attending so much to the literal and
on of the words as to their
strictly grammatical constru:
general or popular use or meaning.")
By its plain and obvious meaning, the phrase
‘correctional facility" undoubtedly encompasses youth
correctional facilities. Absent from the Hawai'i Penal Code,
including HRS § 707-732, is any language limiting the scope of
the "correctional facility" to adult correctional facilities. In
fact, in 2002 and 2004, the legislature expanded uRs
§ 707-732(1) (e) to include persons employed not only in state
correctional facilities, but also to those employed
(iS) Bye private company providing services ata
sorrectional facility:
(is) Ev aprivate company providine community-based
reidential services to persona_comitted to the
Sivector of public safety and having received notice
of this
ay) Beal Sirectional facility operat
() Baa Taw enforcement officer a0 defined in
7io-T0003) (-}
HRS § 707-732(1) (e) (emphases added); sce 2002 Haw. Sess. L. Act
36, § 2 at 107; 2004 Haw. Sess. L. Act 61, § 5 at 304.
specifically, the legislature etated that the purpose for the
expansion of the statute was "to ensur[e] that sexual offenses
committed by any correctional facility employee against inmates
are prohibited, regardless of the employer," Sen. Stand. Comm,
Rep. No. 2913, in 2002 Senate Journal, at 1403 (emphasis added),
and "to provide[] needed protection to persons under the custody
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" Hse. Stand. Comm. Rep. No. 88, in 2002 House
of the state,
Journal, at 1268 (emphasis added). See also Sen. Stand. Comm.
Rep. No. 3162, in 2002 Senate Journal, at 1509. stated
differently, the legislature's focus was on ensuring that the
legislation covered employees of all correctional institutions
intended to be included, and not on defining strictly exclusive
categories. Thus, the type of agency overseeing the youth
correctional facility is not determinative as to whether the
facility is a “correctional facility." It follows then that
Hicks’s argument that the HYCF is not governed by the Department
of Public Safety does not exclude the HYCF from the phrase
"correctional facility." Accordingly, by its ordinary meaning,
we believe that the phrase "correctional facility" mst be
construed to include a youth correctional facility, such as the
HYCP. However, the issue remains whether a youth correctional
facility -- specifically, the HYCF -- is a state correctional
facility.
HRS chapter 352, entitled ‘Youth Correctional
Facilities,* does not expressly provide that a youth correctional
facility ie a state correctional facility. Nonetheless, the
legislature, in enunciating the purpose of the youth correctional
facilities, clearly indicated that:
(a) This chapter creates within the department of
robe pia ie office of youth
[Loge the
executive director of the office Of youth services,) and
uch other subordinates ae the director shall designate, the
wail youth correctional fat ih order to provide
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for the incarceration, punishment, and institutional om
and services to reiategrate into thelr communities and
anilies, eniléren committed by the cours of the state
HRS § 352-2.1(a) (1993) (emphases added). HRS § 352-8 (1993 &
Supp. 2005) further provides in relevant part that "the director
shail be the guardian of every youth committed to or received at
the Hawas‘i youth correctional facilities." Accordingly,
inasmuch as HRS chapter 352 clearly mandates that youth
correctional facilities be placed under the supervision of a
Hawai'i agency, i,e., the Department of Hunan Services, we hold,
as a matter of law, that the HYCF is a state correctional
facility."
The dispositive iesue, however, is whether there wi
credible evidence of sufficient quality and probative value to
enable a juror of reasonable caution to support a conclusion that
Hicks was employed by the HYCP, which, as we have previously
concluded, is a "state correctional facility." Hicks did not
dispute that he was a YCO employed by the HYCF. Indeed, Hicks
testified that he worked (1) as a YCO at the HYCP since 1960 and
(2) in Module B on January 21, 2004 from 6:00 a.m to 2:00 p.m.
‘Thus, taking the evidence in the light most favorable to the
prosecution, there was sufficient evidence to enable the jury to
conclude that Hicks was employed "in a state correctional
facility."
«tm Light of our holding supra, we need not address Hicks’ argurent
Zicion failed to present sufficient evidence showing that the
fe correctional facility.
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2. Complainant as an "Imprisoned Person"
Next, Hicke maintains that there was insufficient
in this case, Complainant
evidence to establish that a minor
-- committed to the HYCF, is an ‘imprisoned person" because, in
juvenile proceedings and juvenile facilities, the focus is on
rehabilitation. Hicks again states that "(p]risons and [ylouth
(clorrectional [f]acilities are operated by separate
department [s] of the [e]xecutive branch of government." He
argues that a juvenile ward of the court is not a "prisoner":
wards in the HYCP are a separate class of individuals,
fas evidenced by the insistence of the Deparenent of timan
‘on referral to then as SUCK, rather than as
or prisoners.
In response, the prosecution asserts that the plain
reading of the phrase “an imprisoned person" as used in HRS
§ 707-732(1) (e) encompasses "juveniles confined to a youth
correctional facility" because:
Ie would be abgurd to believe that che legislature intended
to puniah guards for sexual [contact] with adults in an
adult correctional facility, but not to punish guards for
seul. {eontact] with juveniles confined in a youth
Correctional facility like [che] HYCP, simply Because they
supervision of a different state departvent .
absurd result sould be inconsistent vith the overall
Further, the prosecution contends that, *[v]iewing all of the
evidence in the atrongest light for the prosecution and in full
recognition of the province of the trier of fact, there was
sufficient evidence from which a reasonable mind might fairly
conclude that" Complainant was "an imprisoned person."
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Sse
Like the phrase "state correctional facility," the word
"imprisoned" is not defined anywhere in the Hawai'i Penal Code.
Thus, the undefined word must be read to bear its conmon,
ordinary or usual meaning. Saranillio, 78 Hawai'i at 10, 889
P.2d at 694; see also HRS § 1-14. The Webster Third New
International Dictionary (1993) defines "inprison* as "to put in
prison: confine ina jail." Id. at 1137 (emphasis added).
consequently, the issue before this court is whether there was
substantial evidence to support the conclusion that Complainant
was confined to the HYCF.
In the present case, the testimony of Marciel and Haina
clearly support the conclusion that Complainant was confined to
the HYCP, For example, Marciel testified that her ¥CO job duties
involved *security[,] custody and control of wards" and further
explained that the wards are "troubled youths that have been
sentenced to prison. . . . They're in jail, and I'ma
correctional officer for the youth." Thus, the circuit court did
not err in concluding that there was sufficient evidence for the
jury to conclude that Complainant was confined and, therefore,
Accordingly, the circuit court properly
"an imprisoned person
© qm support of nis contention that juvenile wards are not prisoners
and, therefore, are not "imprisoned person(e),” Hicks relied on three non-
Hawai'i cases, tates, 362 U.S. $41 (1966); District of
Eolunbia ve denny Has 737 Aad 866 (0.C. App. 2998) ; and State v. McBride, 234
SOMA Gra Tove); Oe at 20-22, Ne agree with the prosecution, however,
Chat the three cases relled upon by Hicks do not indicate that a juvenile ward
[e'not an "inprisoned person.”
in'Kants the issue was) notwithstanding the social welfare philosophy
and civil Sroceedings nature underlying the District of Columbia's duvenile
(Continued...)
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denied Kicks’ oral motion for judgment of acquittal and motion
for new trial
B. ns ity of the sexu atutes
Finally, for the first time on appeal, Hicks contends
that:
‘me gexual assault statutes are unconstitutional because
they permit conviction of sex offense without any proof of
bexlal intent. Ail criminal convictions require proof of
state of mind. Gee HRS § 702-204 [(1993)*]. Sexuat Assault
{n the Third Degree requires only knowing “sexual
3(. .,continuea)
court Act, whether the regulresent of 2 "full investigation” by the tantly
Gourt judge prior to waiving a juvenile to adult court should be more broadly
GReerpreeed fo include certain limited rights that adulea have in criminal
Gases, such as the right toa hearing, the right to certain discovery and the
Elgne ‘co weitten findings. 363 0.8. at 955-62. The Suprene Court decided in
the affireative, essentially noting that the isprisonnent of a juvenile is 50
[Ose liberty depriving than the imprisonment of an adult. id, at ss4.. The
court in JereyM. was presented with a dispute over attorney's fee limitations
[athe District of colunbis’s Prison Litigation Reform Act. Although the
court discussed philosophical distinctions between adult criminal proceedings
Ged juvenile delinguency proceedings based on the civil character snd social
welfare focus of their duvenile Court Act, the appellate court pointed out
that ‘congress affizmatively amended the Act to replace the word ragule” with
the word "prisoner," and then defined “prisoner” to expressly include
Juveniles adjudieated delinquent of crimes. 717 A.2d at Eastly, the
jSeue in HeBride wae wnether the trial court was too harsh when it sentenced
the defendant (who was sighteen and a half at che tine of the offense) to
Concurrent teras of fifteen to twenty-two years at a state prison, 334 8.24
Gt 26, The defendant argued that, based on the traditional philosophy of
fehabititacion rather than puniehnent for youthful offenders, be should have
been sentenced toa youth facility for an indeterminate term: Id, The
appellate court ultimately decided that the sentence was too long, but that
hevdetervence created by imposing a fixed minimum term of imprisonment in
State prison was more important than the general desirability of placing the
Gefendant in a youth facility. Ig, at 29. The court, therefore, ordered that
the defendant be tentenced ©0 seven to twelve years if a state prison. Id.
«uns 5 702-204 provides in relevant part thats
[Al person is not guilty of an offense unless the
person acted intentionally, knowingly, recklessly, oF
hegligentiy, as the law specifies, vith respect to each
Clenent of the offense. Rhen the state of mind required to
Gstablien an element of an offense is sot specifies by che
{aw, the elenent ie established if, with respect thereto, a
person acts intentionally, knowingly, or recklessly
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contact."("] Most troubling Le that sexual contact ts
Gefined merely ae contact with the body parts associated
With sex, thefe ie no statutory requirenent of sexoal
Purpose, gratification or invent.
In other words, Hicks argues that the legislature should have
drafted the "sexual contact" statute more narrowly to require
proof of sexual intent, sexual purpose or sexual gratification
and that, because it failed to do so, the statute ie
unconstitutional. Specifically, Hicks, directing this court to
the exclusions in the text of Alaska’s “sexual contact"
definition statute,’ asserts that Alaska’s "sexual contact"
> ssexual contact is defined as
‘any touching, other than acts of "sexual penetration’, of
ER Gexual of other intimate parte of = person not sarried
forthe actor, or of the gexial of other intimate parte of
the actor by’ the person, whether directly or through the
Elething or other material intended to cover the sexual oF
other intimate part
RS § 707-700.
+ Alaska Statute § 12,82.900(b) (58) provides:
‘ {g]emual contact" means
(a) the defendant's
Tey fnowingly touching, directly or through
Giotnisg, the victim's genitals, anus, or female
breast, Or
(ii) knowingly causing the victin to touch, directly
Gr through clothing, the defendant's or victim's
genitals, snus, or fenale breast,
(B) but "eenual contact" dows not include acts
ii) "°*that may reasonably be construed to be normal
Caretaker responsibilities for a child,
Ghteractions with @ child, or affection for a
ehila;
(ii) perfotmed for the purpose of administering «
Recognised and lawful form of treatment that is
Fessonably adapted £0 promoting the physical or
Renral healeh of the person being treated; or
(544) that are a necessary part of a search of a
person committed to the custody of the
Bepartoent of corrections or the Department of
Health and Social services|.)
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definition "has survived" constitutional challenge "because of
ite attempt to proscribe only conduct which is sexual in nature."
Hicks, thus, implies that Hawaii's definition of "sexual contact*
would have been struck down by the Alaska court as
unconstitutional. Accordingly, Hicks maintains that Hawaii's
sexual assault statutes are unconstitutionally overbroad because
"the scheme punishes an excessively broad range of conduct under
the banner of sexual assault in violation of due process rights
of [Hicks] and others.
“Generally, the failure to properly raise an issue at
the trial level precludes a party from raising that issue on
appeal.” State v, Hoclund, 71 Haw. 147, 150, 785 P.24 1311, 1313
(1990) (citing State v. Cummings, 49 Haw. 522, 423 P.2d 438
(2967)). Specifically, this court has held that
‘the question of the constitutionality of a statute cannot be
Fained for the first tine on appeal. =
Hav. 370, 355 7.24 25 (1960). However, in casea where we
have considered the constitu ionality of a statute raieed
for the first time on appeal, we have done so on the ground
that the constitutionality of the statute is of great public
Import and justice required that ve consider the issue. See,
ug.) Pulioka v. Kam, Ss Maw. 7, S14 Pad sea (2973); Smith
SevGmith, 56 Haw, 295, 535 7.242109 (1975).
State v, Ildefonso, 72 Haw. 573, 584, 827 P.2d 648, 655 (1992).
(rin the exercise of this diecretion{,] an appellate court
should determine whether the consideration of the issue
Fequires aaditional facts, whether the resolution of the
question will affect the integrity of the findings of fact
Sf the erisl court.) and whether the question i¢ of great
public inpore.
State v. Kapela, 82 Hawai'i 361, 392 n.4, 922 P.2d 994, 1005 n.4
(app. 1996) (internal quotation marks and citation omitted)
(first set of brackets in original).
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Although Hicks concedes that the constitutionality
issue is raised for the first time on appeal, he contends,
without more, that such does not make the issue unreviewable,
citing Kapela. Although this court’s consideration of the
constitutionality of the sexual assault statutes would not (1)
require additional facts or (2) affect the integrity of any
factual findinge of the trial court, we have considered the
constitutionality of HRS § 707-700 on the grounds of vagueness or
overbreadth, holding that the subject "statute is not
unconstitutionally vague" because the definition of "sexual
contact" is “crystal clear." State v, Richie, 88 Hawai'i 19, 31-
32, 960 P.2d 1227, 1239-40 (1998); see also State v. Kalani, 108
Hawai'i 279, 288, 118 P.3d 1222, 1231 (2005). As such, we
decline to address Hicks’ constitutional challenge. However,
even if we were to conclude that the question present is of great
public import, Kicks’ argument -- as demonstrated below -- lacks
merit.
Preliminarily, we note that, with the exception to
statutes that create suspect classifications, *{e]very enactment
of the Hawai'i Legislature is presumptively constitutional, and
the burden of showing the
the party challenging a statute hi
alleged unconstitutionality beyond a reasonable doubt." State vy.
Bui, 104 Hawai's 462, 466, 92 P.24 471, 475 (2004) (citation,
internal quotation marka, and footnote omitted). In Richie, the
defendant contended that his conviction of promoting prostitution
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in the second degree should be reversed because the definition of
‘sexual contact" was unconstitutionally vague and overbroad. 68
Hawai'i at 31, 960 P.2d at 1239. As previously stated, this
court held that the subject “statute is not unconstitutionally
vague" because the definition of "sexual contact is "crystal
clear":
‘The statute establishes a bright-line rule, which in
laypersons’ terme can be sinmarized aa: "You can 2ook but,
yourean't touch." thie definition gives the person of
Srdinary intelligence & reasonable opportunity to know what
Conduct se pronibited.. It alao conatitutes an explicre
Standard that avoids arbitrary and discriminatory
enforcement and ie not subjective
Ida at 31-32, 960 P.2d at 1239-40. However, the Richie court
recognized that
clain, is distinct
clear and precise in its terms,
Sonatieutionally protected conduct
conduct is includes in its proscripticns,
Id. at 32, 960 P.24 1240 (internal quotation marks and citation
omitted). In that case, the defendant specifically argued that
the constitutionally protected conduct infringed upon by the
definition of "sexual contact" was nude dancing. Id. This court
nonetheless rejected the argument, holding that
nothing in the definition of “sexual contact” in mes
¥°707-700 pronibite nude dancing Der ge. individuals are
hot prevented from dancing in the nade. The conduct
prohibited ip the touching of sexual or intimate parte
Fhos, the statute still permits dancing in the nude and
Allows custoners to look at perforeers dancing in the nude;
That ‘the custemere cannot dois Souch the performers
Id. (emphases in original). The defendant then argued
overbreadth by raising "extreme and patently absurd" examples,
fashion designers,
| contending that dance instructor:
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i
tailors, and even Santa Claue and the Easter Bunny could be
prosecuted under the definition of "sexual contact." Id, This
court responded:
In reviewing @ penal statute, we accord it a Limited and
Feassuasie interpretation in orer to preserve its overall
purpote and to avoid absurd resulte. (The defendant's]
Rttenpe to apply HRS § 707-700 £0 extrene and absurd
Situations is nce sufficient to render it unconetitutionally
overbrosd
1d. (ellipsis omitted)
in Kalani, the defendant was convicted of sexual
assault by kissing a nine-year-old gir] and inserting his tongue
into her mouth. 108 Hawas‘i at 261, 118 P.3d at 1224. On
appeal, the defendant argued that, "if this court allows the
definition of ‘sexual and other intimate parts’ to be broadened
to inelude parts of the body not commonly associated with sexual
relations, such as the mouth, tongue, hair, neck, shoulders, back
and waist, the definition of ‘sexual contact’ will no lenger be
crystal clear." Id, at 287, 118 P.3d at 1230 (sone internal
quotation marks and brackets omitted). ‘The court, however,
rejected the defendant's contention, reasoning that the defendant
had not established that a person of ordinary intelligence would
not know that his conduct constituted sexual contact and, thus,
failed to denonstrate that HRS § 707-700 is unconstitutionally
vague with respect to his conduct. id, at 288, 118 P.3d at 1232.
Here, Hicks has not demonstrated that the sexual
assault statutes are unconstitutionally vague or overbroad with
respect to his conduct. The sole basis of Hicks’ challenge is
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his citation to Alaska’s "sexual contact" definition statute.
However, the difference between Alaska’s definition statute and
Hawaii's definition statute does not somehow render Hawaii's
sexual assault statutes unconstitutional. Accordingly, Hicks has
not shown beyond a reasonable doubt that the sexual assault
statutes under which he was convicted are unconstitutional ag
applied to hie conduct.
IV. CONCLUSION
Based on the foregoing, we affirm the trial court's
October 11, 2005 judgment of conviction and probation sentence.
Stuart N. Fujioka (of g
Nishioka & Fujioka), Bec laan.
for defendant -appeliant
Peamuse Oroue any are
on the brief
Christopher D. W. Young
and Marcus B. Sierra,
Deputy Attorneys General,
for plaintiff-appellee J ON.
Gnne. Daftigs th
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eb12b994-9239-4075-a2d6-826dd310c19a | Tauese v. State, Department of Labor and Industrial Relations. C.J. Moon and J. Levinson Concurring in the results only. S.Ct. Order of Correction, filed 11/21/2006 [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRA
‘*¥FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS®
Sse
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
~000-==
SIONE TAUESE, Plaintiff-Appellant
STATE OF HAWAI'L, DEPARTMENT OF LABOR AND INDUSTRIAL
RELATIONS; RITZ-CARLTON KAPALUA; MARRIOTT CLAIMS
‘SERVICES CORPORATION, Defendants-Appellees
(No. 26389) (CIV, No. 02-1-0414)
SIONE A, TAUESE, Claimant-Appellant
RITZ-CARLTON KAPALUA and MARRIOTT CLAIMS SERVICES
CORPORATION, Employer/Insurance Carrier-Appellee
and
SPECIAL COMPENSATION FUND, Appellee
(NO. 26899) (CASE NO. AB 2002-462 (mM) (6-00-03858) )
nnn SSe EE
No. 26389
APPEALS FROM THE SECOND CIRCUIT COURT AND
THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CIV. NO. 02-1-0414) &
(CASE NO. AB 2002-462 (m) (8-00-03858))
NOVEMBER 20, 2006
NAKAYANA, ACOBA, AND DUFFY, JJ.
WITH MOON, C.J. AND’ LEVINSON, J., CONCURRING SEPARATELY
sesyoR PUBLICATION TH WEST'S HAWAT'T REPORTS AN PACIFIC REFORTER*'
ee
NU ‘THE COURT BY
In this consolidated appeal Plaintiff /Claimant~
Appellant Sione A. Tauese (Appellant) appeals from (1) the
vanuary 27, 2004 Judgnent of the circuit court of the second
circuit (the court), granting the motion to dismiss or in the
alternative for summary judgment filed by
petendant's/Employer/Insurance Carrier-Appellees Ritz-Carlton
Kapalua (Ritz-Carlton) and Marriott Claims Services Corporation
(marriott) on Appellant's August 28, 2002 complaint for
declaratory and injunctive relief against Ritz-Carlton, Marriott
‘and befendant-Appellee State of Hawai'i, Department of Labor and
Industrial Relations (DLIR or Department) to halt proceedings
against Appellant for a fraudulent insurance act under Hawai'i
Revised Statutes (HRS) § 366-98 (a) (&) (Supp. 2005)* in Civil No.
1 Hawai" Revised Statutes (HRS) $ 366-98 (Supp. 2005), entitled
spravd violations and penalties,” provides in relevant part as follows:
(a) A fraudulent insurance act, under this chapters,
sani benefits, obtain benefits compensation
PEM rvices provided, or provides legel sesistance or
Counsel to obtain benefite or recovery
Secelt by doing the following:
ie} * Hisrenresentine or concealing » material tact!)
ia) An‘ ofte
constitute a:
Ti), “Claes c felony if th
under subsections (a) and (b) shall
value
‘the moneys
Sbeained er denied 1s not less than $2,000:
(2) Misdeneanor Lf the value of the moneys obteined
Or denied is less than $2,000; oF
(3) Petty aisdeneanor if the providing of false
Information did not cause any ronetary loss.
Any person subject te a criminal penalty under this
section shall be ordered by a court to make restitution to
Ssvlnsurer or any other person for any financial loss
fsteined ny she ineurer'or other person caused by the
(contained...)
sesf0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS**
ee
2-1-0414, and (2) the October 7, 2004 Decision and Order of the
Labor and Industriel Relations Appeals Board (LIRAB) affirming
the decision of the Director of the DLIR finding, inter alia,
that Appellant committed @ fraudulent insurance act under the
aforesaid section in Case No. AB 2002-462 (M) (8-00-03858)), and
ordering a total suspension of Appellant's workers’ compensation
benefits, that Appellant reimburse Ritz-Carlton for attorney's
fees and costs incurred because of the fraud complaint, and that
Appellant pay $5000.00 to the Special Compensation Fund.? We
hold that fraudulent insurance acts under HRS § 386-98(a) (8) must
be proven by clear and convincing evidence. Inasmuch as the
continued)
(e) inLieu of the criminal penalties set forth in
subsect lon tah any person eno +iolates subsections (a) and
: x e
Testitution of benefits oF paysente fraudusently received
Gover thie chapter, whether received from an enployer,
Ynsure:, or the special compensation fund, to be made to the
Source fren which the compensstion was received, and one or
nore of the following:
(2)"" A-tine of not more than $10,000 tor each
‘iclations
(2) Bipehsion or termination of benefits in whole
or in parts
ie)" Reimbursenent of attorney's fees and costs of
the party or parties defrauded.
(ey wae the se
ene penalty shell be inposea except
Giaaislderstion of « written complaint that specifically
Glicges a violation of this section cecurring within two
Years of the date of said complaint.R copy of the
Ueplaine specifying the alleged violation shall be served
promptly upen the person charged. The director or board
Ehall issue, where's penalty is ordered, # written decision
Stating ¢l1 findings following = hearing held not fewer than
Enenty deys after written notice to the person charged. Any
person aggrieved by the decision may appeal the decision
Under sections 366-87 and 38
(Enphases added.)
2 Ritz-Carlton, Marriott, and the Special Compensation Fund are
collectively referred £0 herein ae Appellees
3
LIRAB found on the complaint of Ritz-Carlton and Marriott that
Appellant violated HRS § 386-98(a) (8) by @ preponderance of the
evidence rather than by clear and convincing evidence, we vacate
its October 7, 2004 decision and order and renand to the LIRAB
for a rehearing in accordance with this opinion. Because we
remand, we hold, further, that (1) Appellant has failed to show
that HRS § 386-98 (Supp. 2005) improperly delegates the police
power of conmencing @ proceeding to a private entity when
administrative penalties are involved; (2) a fraudulent insurance
act under HRS § 386-98 requires proof that the logical result or
purpose of a person's acts or omissions is to fraudulently obtain
benefits, and does not require that benefits actually be
received: (3) administrative penalties imposed pursuant to HRS
§ 386-98(e) are not criminal in nature: (4) misrepresentations
before the DLIR are not constitutionally protected by the First
Amendment; and (5) statements made to a physician during an
independent medical examination (IME) are not subject to the
physician-patient privilege. MWe conclude that Appellant has
failed to establish reversible error as to other points he raises
on appeal from the LIRAB decision.
We discern no reversible error committed by the court
in Appellant's appeal from the court's January 27, 2004 judgment
and affirm that judgment.
1h
On November 2, 2000, Appellant suffered an on-the-job
accident while employed as a housekeeper by Ritz-Carlton.
4
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Appellant fell while using a desk and chair as a ladder to clean
the ceiling. On November 4, 2000, Appellant saw Helen Percy,
M.D. (Dr. Percy) for treatment of his injuries. Dr. Percy
diagnosed Appellant as having suffered a lumbosacral strain, a
contusion on his right buttock, and a contusion on his left knee.
She certified that Appellant’s accident resulted in -disabiljty
for work, with the disability beginning on November 4, 2000.
on November 5, 2000, Appellant filed a workers’
compensation claim for the injuries sustained in the accident.
On November 13, 2000, he began physical therapy through Rehab
Outpatient Services at the Rehabilitation Hospital of the Pacific
(Rehab Outpatient Services). On December 4, 2000, Appellant had
@ follow-up visit with Dr. Percy. She concluded that Appellant
was still unable to work, even on half-time light duty, and
referred him to Darren Egami, M.D. (Or. Egami), an orthopedic
surgeon. Dr. Egami began treating Appellant on December 7, 2000.
Dr. Egami referred Appellant to George E. Powell, M.D.
(Dr. Powell), a neurologist, for a magnetic resonance imaging
(RI)? study of the lumbosacral spine. The MRI study was
performed on February 6, 2001. in his report dated February 12,
2001, Dr. Powell diagnosed Appellant as suffering from “(1]umbar
strain” and “[plossible bruise of the sciatic nerve area with
persistent sciatica.” In the “Recommendations” section of his
2 Magnetic Resonance Imaging (MRI) is = noninvasive diagnostic
technique that produces computerized images of internel body tissues end is
based on nuciesr magnetic rescnence of atome within the bedy induced by the
application of radio waves. Webster's Third New Int'l Dictionary,
http: //unabridged.nerrian-uebster.con (leet visited Ost~ 31, 2006) «
5
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report, Dr. Powell stated that “[fJurther physical therapy might
be of benefit. One might also consider referral to a chronic
pain clinic.”
on February 15, 2001, Dr. Egami certified Appellant as
vnable to work until March 2, 2001, when he released Appellant to
Light duty Work. on March 7, 2001, Dr. Bgami certified Appellant
as unable to work for three days due to pain in Appellant's lover
back. ‘Thereafter, Appellant was to return to light duty work.
Appellant met with Dr. Egami on March 29, 2001, at
approximately $:00 a.m. Dr. Egami noted that Appellant reported
lower back pain with @ severity of five-out-of-ten, on a scale of
one to ten. Dr. Egami released Appellant for work beginning the
next day, March 30, 2001. The release certification dated
March 28, 2001 did not restrict Appellant's hours, but indicated
no lifting greater than twenty pounds and no bending.
on that same day, March 29, 2001, Appellant was under
surveillance by McCormack Investigations, Inc. for Ritz-Carlton.
At approximately 11:26 a.m., Investigator Ivan Alatan (Alatan)
videotaped Appellant, along with several other men, skinning and
cutting the carcass of a cow near a ranch along Hana Highway.
Alatan's “synopsis Surveillance Report” sunnarizes observations
of Appellant bending over while skinning the cow, cutting meat
from the carcass, placing the meat inte plastic bags, and moving
the bags around the back of a pickup truck for approximately one
hour:
‘s+4P0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERY+#
11:26 a.m, - videotaped [Appellant] over approximately the
ext 17 minutes as he stood on the right side of the cow's
Corcass, bent at the waist appearing to skin the cow with)
the unidentified males, walked around to the rear of the
Carcass, spread his feet end legs wider than shoulder width,
Bent atthe waist, walked to his right, appearing te squat
Continuing to clean the carcass.
1m, ~ Videotaped (Appellant) over the next 1¢ minut
fae he stood, bent at the waset at the front of the ca
Bppesring co cut axay the hide with his feet and legs spread
Niger than his shoulders, stood upright, bent at the waist
Gppearing to cut away the left front Leg of the carca:
Stbod while carrying the 1e9, placea the leg in a large
fresh bag that an unidentified female held.
iio’ p.m, - videotape(d Appeliant) over approximately’ the
ext 30 minutes as he stood with his feet and legs spread
bpert at shovlder width, bent at the waist, stretched to his
rEght Spreading his legs farther apart while bending at the
Hight knee appearing to cut the ribs of the carcass, placed
fis right elbew on Mis right knee appearing to brace himself
While zeaching with nis left ars. + Dent at the waist
With his feet end lege spread.» . stood upright while
Corsying 2 piece of rib into large trash beg that an
Ghidentities fenale held open, stocd upright, bent st the
Moist continuing te cut pieces of the carcass, bent at both
Thees and squatted, stood upright, walked to the rear of a
pick-up appearing to wash a piece of the carcass, walXed to
fhe rear of the Nissan, stood next to the pick-up, lifted
his left leg onto the tailgate bending at the left knee,
Lifeea hineel! into the bed of the pick-up, bent at the
waist appearing to tie and 1ift the large trash bage
Containing the mest, arranged the bags in the bed of the
Eick-up, stood upright, bent at both knees to climb down off
Ehe bed of the pick-up, sit [esc] on the tailgate fore
Brief time
on April 2, 2001, Appellant was discharged from
physical therapy. On April 10, 2001, Appellant underwent a
functional capacities evaluation (FCE) at Rehab Outpatient
Services with occupational therapist John Mizoguchi (Mizoguchi) .
Appellant reported constant low back pain and being able to sit
confortably for only one hour at a time, being able to stand for
only fifteen to thirty minutes at a time, and being able to walk
for only thirty minutes at a time. The FCE concluded that
Appellant “was able to safely demonstrate material handling up to
the light to 1ight-medium physical demand characteristic of work
FOR FUBLICAION 8 WEST! § HAKAI' REPORTS AND PACIFIC REPORTER:
category,” for an eight-hour work day. However, the FCE
concluded that Appellant was not able to perform the housekeeping
job as described.
By letter dated April 26, 2001, Appellant was informed
by Marriott that it had scheduled an independent medical
examination/rating examination (IME) for him with David Toeller,
M.D. (Dr. Toeller) on May 9, 2001. Dr. Toeller conducted the IME
and submitted his “IME/(Permanent Partial Disability (PPD))
Evaluation Report” (IME Report) to’Marriott on May 9, 2001.
According to the IME Report, during the IME, Appellant
reported that his back was no different than it was a few months
earlier. He complained of pain in the lover back radiating into
his right leg and pain in his right hip. Appellant maintained he
was unable to sit or stand for very long, and could not walk for
nore than fifteen minutes without having to stop due to pain.
Appellant reported ‘that he was much worse if he had to bend over
to pick things up. He stated that he can no longer play tennis
or rugby oF go hunting due to back pain. Dr. Toeller recorded
Appellant grimacing and complaining of pain throughout the
examination. He further noted that when Appellant left the
office, “he was walking with an antalgic gait, demonstrating a
pain behavior regardless on which leg he would bear the weight.”
Dr. Toeller tested Appellant’s range of motion in his
lower back, but determined that “patient's ranges of motion could
not be determined with an inclinometer as they were outside of
the valid range on repeat testing, exceeding 20% differences trom
®
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the beginning to the end of the exai.” Appellant showed Dr.
Toeller a bruise on his right hip which he stated was from the
Novenber 2, 2000 injury. Dr. Toeller stated in the IME Report
that this was “nedically impossible.”
br. Toeller also examined Appellent’s hip motions. He
reported that “[o)n the right side, [Appellant’s] hip motions
were not measured due to his pain complaints.” Dr. Toeller |
observed, however, that Appellant had “excellent hip flexion in
the seated position when I was not testing him but could not
tolerate the hip flexion in thé supine position when T was
formally testing him, This is inconsistent.” Regarding testing
of Appellant's ability to raise his legs, Dr. Toeller reported:
Straight leg raising tests could be tolerated to no nore
than 15, (degrees) on either side, Noticeable grinacing and
Conplainte sf pain accompanies this perfectly syemetrical
Toes. inediately thereafter, the patient was able to sit
up ih 2 Jackinife poeition exceeding 90. (degrees) of
aight leg raising and have © conversation with me without
‘se alec most inconsistent:
Dr. Toeller observed that Appellant “was tender to superficial
palpation throughout the entire 15 circle and both sacroiliac
joints” and that “[t}his was inconsistent with the fact that T
could press hard on his back when I was helping him get off the
table without complaints.”
Dr. Toeller concluded that Appellant’s examination “
clearly and purposely factitious” and that “(t]he only objective
abnormalities on today’s examination were findings of a purposely
factitious examination.” Regarding the FCE, he stated that it
was “in error” and that Appellant “should be returned to full
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duty immediately.” In his final conclusions, Dr. Toeller found:
‘This gentleman sustained a sprain/atrain to his low
Back, contusions to the right nip ang left knee at
work’ 6 months age.
By all cbjective criteria, he is fully recovered with
no inpairnent, He has reached maximum medical
Inprovenent and is capable of full duty.
3. the patient would disagree with my determination{.]
Nevertheless, I am essentially sgnoring his. profound
Subjective complaints of pain ana inpairment since
they are Unresronable, inconsistent with normal pain
behavior, incompatible with his known cbjective tests,
fand accompanied by 8 factitious exam.
Dr. Toeller thus rated Appellant's permanent whole person
impairment at 08.
on May 10, 2003, one day after Appellant’s INE,
Dr. Toeller reviewed the surveillance video of Appellant recorded
on March 29, 2001. Upon reviewing the video, Dr. Toeller
submitted to Ritz-Carlton an “Addendum to IME/PPD Evaluation,”
sed
which included images from the video. Dr. Toeller a!
Appellant's actions on the video and reaffirmed his previous
conclusions:
In this video, (Appellant) is participating in
cleaning = large animal. He spends extended periods of tine
forward flexed at che lumbosacral spine with his hi
cutstzetened in front of him working. During this video
{appellant}. ie yp snd down several tines from that bent over
position, His flexibility is superior with forward flexion
Exceeding 100 [degrees] during this perioc. He has the
Shility to get up and down several tines without any sign of
pein behavior, gfinacing nor sre there any actions that
Mould be protective of @ sore back.
My IME Yesterday concluded that (Appellant) had given
ne a purposely-factitious presentation. This video simply
Cenfirme that opinion. There are unacceptable differences
Between [Appellant's] rather extrene fluid motions in the
video va, the presentetion that he sade to Dr. Egant on the
fone day the performance at the [FCE) 2 week-and-evhalt
Inter; and the inpaires performance he denonstrated in ay
office yesterday.
The doctor also noted that “[t]his tape further cements ny
feeling that the [ECE] wes in error.” Dr. Toeller considered
20
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oo
several possible explanations for these differences, but
concluded that “the diagnosis of the factitious presentation is
the only reasonable conclusion 1 can make.”
nu.
on May 23, 2001, Ritz-Carlton and Marriott requested
hearing before the Department to address Appellant’ permanent
disability. On August 7, 2001, the Departnent issued a, “Notice
of Hearing” stating that @ hearing would be held before the
Department on September 6, 2001. At the Septenber 6, 2001
hearing, Appellant appeared with a Tongan interpreter‘ and
without counsel.
Relying on Dr. Toeller’s May 8, 2001 report, counsel
for Rite-Cariton and Marriott argued that Appellant was “less
than candid” with Dr, Toeller during his May 9, 2001 examination.
counsel for Ritz-Cerlton and Marriott stated that, based on
De. Toeller’s 0% whole person impairment rating, it was their
position that Appellant was not entitled to any permanent
disability as @ result of the Novenber 2, 2000 accident.
Appellant described the Novenber 2, 2000 accident and
the treatment he had received from Dr. Percy, Dr. Powell, and
be. Egani. He testified that he still had pain in his back and
that he needed to Lie down for one hour after work due to the
pain. During cross-exemination by counsel for Ritz-Carlton and
+ Appellant states in hie opening brief in S.C. No. 26899 that he
immigrated free Tonga to find work. fe did not gradvate from high school in
Tongs of in the United States. Appellant's primary language 4s Tongan, which
he apesks st home. English i¢ his second language
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Marriott, Appellant maintained that his back was “very sore” when
he returned to work on March 30, 2001. He further stated that he
could no longer play tennis or go hunting.
Appellant testified that he had difficulty squatting
and bendin
[COUNSEL FOR RITZ-CARLTON AND MARRIOT?) : Can you bend
your knees? Can you squat down?
(APPELLANT) I can equat, but the pain will get worse
fon that on
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT): How Long can
you squat?
TAPPELLANT]: I think for squat, I no can go Jong and
stay on myself.
(COUNSEL FOR RITZ-CARLTON AND MARRIOTT]: what's the
longest you can squat?
AIAEPELANT]? T don'® know. Maybe five seconds or
something.
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT]: How about
bending over? If you are standing up end you have to bend
over, can you bend over?
TAPPELLANT]: can bend
it's not 10 seconds, 15 seconds
COUNSEL FOR RITZ-CARLTON AND MARRIOT?) ; Not longer?
[APPELLANT] Not longer.
(COUNSEL FOR RITZ-CARLTON AND MARRIOT2) : What heppens
Af you squat too long of you bend over too long, what
happens?
(APPELLANT) : You know, that point 1no can do that
{COUNSEL FOR RITE-CARLTON AND HARALOT?) ; Mould this
have been true beck in March, shen vou went back to-uorh of
‘thie wear?
TAPPELLAWT): Stil] the same the pain. If 1 no do
senething, it's not really worse the pain.” fut if T try to
force something, ‘that's when the pain cones on,
Fr but Like what T say,
(Emphases added.) Upon continued cross-examination, Appellant
reiterated that in March 2001, he could not squat for very long
and could not bend over for very long because of the pain. He
related that he disagreed with Dr. Toeller's report and that the
bruise he had on his right hip was from the Novenber 2, 2000
accident.
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Appellant was questioned ‘regarding Dr. Toeller’s 08
whole person impairment rating:
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT]: Did Dr. Egat
ever give you 2 rating - ~ ancther rating after he saw you?
(APPELLANT): No, he said he have to get back to you
quys because he already gave me to somebody else already.
He cane to the insurance, you guys supposed to find a doctor
for the rating. le seid’ if he is the ene to do it, he can
fell ne what rating on that tine, but the inaurance have to
find their own doctor for chat
(COUNSEL FOR RITZ-CARLTON AND MARRIOTT): This ie our
doctor, br. Toller? Or. Towller said you have a zero
percent rating?
TAPPELLANT) : Yeah.
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT}: And you
Gteagres with he (rating)?
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT
you think st's woreh?
[APPELLANT]: 1 think Like 10.
{COUNSEL FOR RITZ-CARLTON AND MARRIOTT}: Ten percent?
[APPELLANT]: Yean. .
How much do
He testified that he did not do “any activities” and that “[a]11
I do is just go to church.” When asked if he was still able to
glean an animal after hunting, Appellant responded in the
negative,
(Emphases
Appellant
a week as
sometimes
but that he can try:
ICOUNSEL FOR RITZ-CARLTON AND MARRIOTT]: Can you do
that anymore = clean the aninal?
TAPPELLAN?] ¢ No
(COUNSEL FOR RI7Z~CARLTON AND MARRIOT?) : Did vou ever
TAFFELOANT]: Lcan trv. but 1 have a iot of friends, 2
Act of family they Sando that. Why | acing do ches if f'
use somebody to that?
TCOUNSEL FOR RITZ-CARLTON AND MARRIOTT]: That's if you
0 hunting:
TAPPELLANT] : That's if 1 go, but I don’t go hunting.
added). Upon questioning from the hearing officer,
recounted that he did stretching exercises three times
part of his rehabilitation and that pain in his back
woke him fron his sleep.
Prior to testifying at the hearing, Appellant had not
seen the surveillance video taken on March 29, 2001, and was not
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given Dr. Toeller's Addendum to IME/PPD Evaluation, dated May 10,
2001. After Appellant testified, the video was shown at the
hearing and Alatan narrated its contents. After the viewing of
the video, counsel for Ritz-Carlton and Marriott asserted, inter
alia, that the tape discredited Appellant's testimony and that
Appellant was being “less than candid” with ‘the DLIR.
Appellant then disputed that the tape discredited his
testimony:
Like even that one you can see the date. I no really 1
0 what 1 normally do. T can do but not too long. You can
See'the Gate: Ae soon a8 I bend a little bit, 1 feel the
Esck is sere, lots of tine I stand up. That one like be can
think whet Féting for accident. That one for ne i# not
Feally's big deal that one. Ino lifting snything heavy. 1
Jost try to help my friend for that one because we get some
DMN ike we take the com it's Just for the family, and Like
hat he say, he don't believe it, I think we can. show him
Tovhe can see with hie cun eye too. And that's all 1 can,
say.
After Appellant's statement, the hearing officer observed the
bruise on Appellant’s right hip. Upon viewing the bruise, he
stated that “[w]hat: T noticed was what appeared to be a bruise
mark approximately two inches by one inch on the right hip. And
it still actually retains the quality of a bruise, even though
one doctor - - was it May? And it’s now September?” The hearing
officer informed the parties that a decision would be forthcoming
and if they did not agree with it, they could appeal.
on Septenber 28, 2001, the Department issued its
Decision awarding Appellant benefits for temporary total
disability (27D), temporary partial disability (TPO), and
disfigurement. Specifically, regarding benefits, the Decision
state:
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a
‘a. (770]:_ (Wasting period: 11/4/2000 though 21/6/2000)
Beginning 11/7/2000 through 11/22/2000; 11/24/2000 through
B872e72080; 12/3/2000 through 3/1/2000) 3/7/2003 through
3/10/2001; 4/10/2001 only
NONBER OF WEEKS! 16.1429 '@ $ 402.49 = $6,497.36
Bo (teb]: beginning 11/25/2000 only: 11/27/2000 through
12/2/2000
NOMBER OF WEEKS: 1.0000 @ $262.49 = $262.49
4.) brSprouREMenn: 2" by 1" irregular scar, right hip, flat
Gnd faintly hyperpignented
ForAL: $400.00
Appellant was also awarded the cost of medical care, services,
and supplies as needed for the Novenber 2, 2000 accident. He was
not awarded permanent total disability or PPD benefits. There
was no appeal from DLIR's September 28, 2001 Decision.
ut.
on February 12, 2002, Ritz-Carlton and Marriott filed a
complaint for fraud against Appellant with the Department. In
Count I, the February 12, 2002 complaint alleged that Appellant
had made several misrepresentations resulting in him obtaining
benefits he was not entitled t
piaxenpasenieg the naate and en
ae st 7 Bh ha
abilities to nent hsb at Hao -auts 3
a ot Teel
5. [appellant] fraudulently obtained workers’
coapensation benefits under Chapter 366, (HRS), ax amended,
from ot lesst March 23, 2001 forward, by concealing
Information and/or misrepresenting to Mis medicel provider:
ane (Ritz-carlton/Marriott) the extent and/or nature of his
injuries, Be
‘Aisuch, the uadical providers continued to treat
Hopellane\ang-certify hin to be toabie to cesure Bia usus
emp custaay ie and collect [tsp1 end/or-chtain a soditied
position st ware
EAs ¢ Feavlt of (Appellant's) misrepresentations,
[nite-Carivon/iarriote) pase fer mecice) treatment end
Greninations which were not required, and made overpayment
SE tenporery Gusebility benefits and/or provided modi fied
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(Emphases
added.) In Count I1, Ritz-Carlton and Marriott further
averred that Appellant had misstated his work abilities and
therefore
Ritz-Carlton had provided him with housing benefits to
which he was not entitled:
(Emphases
8. JAppellant! ¢raudslenty sisrepresented hinselé to
be_disabled irom reallar duty work and requested (Bitz~
GGelscnl srovide hin with nousings Ae e result of these
Fequests, [Rits-Carlton/Marrictt) pase monetary
Feimbursenents to (Appellent) in an amount to Be shown at
hearing.
9. (Aopellanti fraudulently obtained workers’
‘sompensation benefits fron (Ricz-Cerlton| onder Chanter 306.
Beneritg, ‘These violations occurred from at least March 29,
2001 and continves ongoing.
added.) In Count ITI, Ritz-Carlton and Marriott
averred that Appellant had violated HRS § 386-98:
(Emphases
following
11. [Appellant) has Sntentionally or knowingly acted
s0 as to cbtein benefits or recovery through fraud or decest
a5 defined under [HRS § 386-96], as anendes, as follows:
false or fraudulent clein “for the payment of a loss.
. Making, oF causing to be made, a false or
fraudulent claim for payment of @ health care benefit;
facts :
fs
G. Fabricating, altering, concesling making @
‘entry Sh 8 document) and/or
fe. Making, or causing to be made, false or
fraudulent statenents or claims with regard to obteining
legal recovery or benefits:
added.) Ritz-Carlton and Marriott requested the
relief:
2. Criminal cenalties as afforded by law and/or;
2. (Auoellantl be assessed the fine cf not more than
‘3: Suspension or termination of workers’ compensation
benefits in whole or part and/or
4. Suspension or disqualification from medical caze,
services or supplies, vocational rehabilitation servic
Gther services rendered for payment under Chapter 286,
HRS}, 8 snended and/or
Si Recoupment by (Ritz-Carlton/Marrictt} of 311
peyment® of mecical and indemnity benefits, including
howsing, under Chapter 366, [HRS], 8 amended, nan amount
to be shown at heating
6, Rament of (Ritz-Carlton/Marriott's] attorney's
tees and costs
‘ane
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4. Such other and furthér relief ax the Director (of
‘the Departrent] eens just and proper in the prenises.
(Emphases added.)
on February 20, 2002, the Department informed Appellant
that Ritz-Carlton and Marriott had filed a complaint for fraud
against him and provided him with 9 copy of the complaint. The
pepartment also informed Appellant that “[i]£ it is determined
that you violated [HRS § 386-98], you may be subject to’ criminal
or adninistrative penalties; and benefits may be suspended or
terminated.”
on March 14, 2002, Appellant responded to the complaint
denying that he had violated HRS Chapter 386. He also asserted
defenses to the complaint stating, inter alia, that the
application of criminal penalties under HRS § 386-98 was
unconstitutional, the Department did not have jurisdiction over
criminal matters, and the complaint and HRS § 386-98 were
unconstitutionally vague. Appellant asked that Ritz-Carlton and
Narriott be denied aii relief requested and that he be awarded
attorney's fees and costs. On April 12, 2004, Appellant sent a
letter to Ritz-Carlton and Marriott stating that the letter
should be considered “a demand that [Ritz-Carlton and/or
Marriott] withdraw its complaint.”
on dune 20, 2002, Appellant filed a motion with the
Department for @ bill of particulars and demand for a
prelininery hearing and jury trial on “eriminel and other
penalties charged against [him]." On June 25, 2002, the
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Department responded by returning Appellant's pleadings and
informing Appellant that the complaint was filed under HRS
§ 386-96 and Hawai'i Administrative Rules (HAR) § 12-10-77, which
are within the jurisdiction of the Department. the Department
also informed Appellant that it “lecks jurisdiction in criminal
proceedings.”
w.
On August 28, 2002, Appellant filed a complaint in the
court naming Ritz-Carlton, Marriott, and the DLIR as defendants.
His complaint was docketed as Civ. No. 02-1-0414(1). He asserted
that a hearing had been set by the Department for Septenber 4,
2002 on the February 12, 2002 complaint filed by Ritz-Carlton and
Marriott, and that allowing the hearing against Appellant as to
administrative and criminal fraud would constitute double
Jeopardy and violate the U.S. and Hawai'i Constitutions.
Appellant requested declaratory and injunctive relief prohibiting
the Department, Ritz-Carlton, and Marriott from proceeding with
the hearing and any other appropriate relief.
On September 3, 2002, a hearing was held before the
Department. At the hearing, counsel for Ritz-Carlton and
Marriott stated that they intended to voluntarily dismiss Count
Ti, and that they would not contest any benefits paid to
Appellant pursuant to the Departnent’s September 28, 2001
Decision, including the TTD benefits paid for April 10, 2001.
Counsel for Ritz-Carlton and Marriott stated that the complaint
related to treatment and benefits received by Appellant after
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March 29, 2001. Counsel for Ritz-Carlton and Marriott also
asserted that the fraud complaint was based on alleged
nisrepresentations made by Appellant at the September 6, 2001
pepartment hearing. Counsel for Appellant sought clarification
that criminal penalties would not be addressed at the hearing:
[COUNSEL FOR APPELLANT]: Before we proceed, one last
clarification from [Appellant]. (Ritz-Carlton and
Sersiote’s] complaint. Goes aldege criminal penalties.
THEARINGS. OFFICER)
alti sel lta ant
[COUNSEL FOR APPELLANT): Yes, T want to make clear for
the record = =
“THEARINGS OFFICER); The nly ceneltiex chat we aaseas
ESSERE APPELLANT]: Thank yoo.
(Emphases added.)
Mizoguchi testified at the hearing and stated that he
still believed his findings from the FCE were accurate. He
related that viewing the video taken on March 29, 2001 did not
Impact his findings inasmuch as he believed Appellant's
activities on the video suggested that he was experiencing pain.
Mizoguchi observed Appellant's facial grimacing and possible
stretching of the back. He stated that although he did not
disagree with br. Toeller’s findings, they were different than
his. Lastly, Mizoguchi reported that Appellant “[dJenonstrated
motivation” to return to work, that the results of physical tests
run on Appellant were consistent with his injuries, and that
Appellant “put forth good and valid voluntary effort during the
(ce).
At the hearing, Dr. Egami also testified. He stated
that it would have been his routine to discuss with Appellant the
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restrictions contained in the March 29, 2001 release
certification. Upon questioning regarding the March 29, 2001
video, Dr. Egami testified:
Well, like 1 said, 1 mean, when I write something Like
this, you know, Limitations for work, there is an unepoken
understanding that that applies to work and also to general
ectivities. You know, T con't write them for nothing. T
expect patients on [sic] follow what it de I'm recommending.
od T wouldn't have, you know, Wanted [Appellant] to do
that. "mean, T wouldn't have said it's okay to do thet.
you look like’ you'were working Yeally hard. And St didn't
appear that you're having any trouble doing that, That's
ot what I would have wanted you to be doing. If 1 excused
you from doing that at’work, way would Tsay okay, you can
ost on your tree tine as well, And that's the only thing
I think ebout that viceo, it saz not what T would haves you
know wanted hin to be doing,
(Emphases added.) When asked if Appellant had been “less than
candid” during treatment after seeing the video, Dr. Egami
responded, “I would say no, but that’s a no with a little bit of
mark.” Dr. Bgami also testified that Appellant's
activities on the video would have aggravated Appellant's back
pain. Dr. Egami indicated that he saw Appellant at some time in
June of 2002 for a follow-up visit, He further stated that
Appellant did not appear to show discomfort or back pain on the
video. However, on cross-examination by counsel for Appellant,
De. Egami testified that if Mizoguchi did not believe Appellant
was “stepping out of the bounds [of the FCE] in that video, then
that's probably accurate.”
Part of the video was shown and Alatan again narrated
it. Upon questioning by counsel for Appellant, Alaten maintained
that his report was not meant to indicate that Appellant was
bending over for the entire duration of the video. He viewed
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‘Appellant bending over and standing up throughout the video,
Appellant's immediate supervisor, Robert Kaninay
(Kaninau), recounted that upon Appellant's return to work on
March 30, 2001, his work responsibilities were modified to comply
with Dr. Egani's restrictions of no bending and no lifting of
over twenty pounds. Kaninau declared that if Appellant needed to
Lift anything weighing more than twenty pounds at work, he was
given help, that he did not do any bending, and that he did not
operate the carpet cleaner, He stated that the restrictions
imposed by Dr. Egami ended at some time around April of 2001.
upon questioning by the Hearing Examiner, Kaninau explained that
wniie Appellant was working under Dr. Egami's restrictions, he
did not clean mold in bathrooms or move beds, as those tasks
required bending.
After testimony had been taken, counsel for Ritz~
carlton and Marriott argued that Appellant had made
nisrepresentations to Dr. Toeller and provided a “factitious
evaluation” in violation of HRS § 386-98. He stated that
Ritz-Carlton and Marriott were seeking suspension of any benefits
to Appellant from April 11, 2001 forvard and an award of
attorney's fees and costs.
attorney for Appellant introduced Dr. Powells
February 12, 2001 report into evidence and asserted that it
confirmed that Appellant was actually injured and that
br. Toeller ignored Dr. Powell's report. He contended that
wizoguchi provided “the best evidence . . . so fer in this case”
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inasmuch as he was not hired by either party to conduct the FCE.
Counsel for Appellant maintained that even assuming Appellant
nade misrepresentations to Dr. Toeller, Appellant did not receive
any benefits after March 29, 2001. The Hearing Examiner
declared that a decision would be forthcoming and concluded the
hearing. .
vw -
In the court on September 23, 2002, Ritz-Carlton and
Marriott filed their answer to Appellant's August 28, 2002
complaint. Therein, they raised numerous defenses, including,
alia, failure to mitigate, failure to exhaust all
administrative remedies, unclean hands, and an assertion that
jurisdiction was with the Department and/or LIRA, Ritz-Carlton
and Marriott asked that Appellant's conplaint be disnissed or
that judgment be entered in their favor, and that they be awarded
attorney's fees and costs, and any further appropriate relief.
On Septenber 25, 2002, Appellant filed a demand for
jury trial with the court.
On October 11, 2002, the Department issued its
“Decision” stating that Appellant willfully misrepresented his
Physical abilities to Dr. Toeller and at the September 6, 2001
Department hearing for the purpose of obtaining benefits, in
S| this statenent nade by countel for Appellant thet Appellant did
not receive any benefits after March 75, 2001 appears to be incerfect insesuch
ae the Departnent's Septenber 26, 2001 Decision awarded Appellant Teeporary
Total pisability (770) benefite for April 10, 2001, As diecorsed gunea,
counsel for Ritz-Carlton and Marriott stated that they did net contest those
‘90 benefites
22
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a
violation of HRS § 386-98 (8):
Tt is clear that (Appellant) did not receive any
sete nSbtlon to which he wae not entitied as a result of his
Sections. fonetheless, based on the activities that
ieppellant] wes fined performing on March 29, 2001, it 48
mI I
sealing oie eeemanent eee tase Secret
pee eS convened Zor the purpose of determining the
Tippeliant’s] entituement to (PFO) benefits. Ine
a wilful «
see tentation or cencesiner
ts F #
Eiri tor unich aduinistrative penalties ball be
assessed
(emphases added.) The Department assessed the following
administrative penalties:
1. Pursuant to [HRS § 386-98 (6) (1)1, (Appediant) shall pay
a fine of one lump sun of $5,000.00 into the Workers’
Gonpencation Special fund.
so forsuant. te [ARS § 386-96 (e) (2)), the [Appellant s)
Jenene te
zs 0.
eee eMdart to {HRS 6 396-98 (e) (6)], the (Appellant) shall
fbke veinhursenent tothe exployer/insurance carrier £0r
thet the
ceassuabie-titice carfier incurred in pursving this matter.
(enphases added.) On October 16, 2002, Appellant appealed the
october 11, 2002 “Decision” to LIRAB. On November 7, 2002, LIRAB
issued notice stating that an initial conference would be held
in the instant case on December 5, 2002, 2 settlenent conference
would be held on April 12, 2004, and 2 hearing would be held on
May 11, 2004.
on Novenber 29, 2002, the Department filed its answer
to Appellant's August 28, 2002 complaint in the court. Therein,
the Department argued, inter alia, that Appellant's complaint was
oot because the Department had already conducted a hearing for
civil penalties on Septenber 4, 2002. The Department raised the
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..m
October 11, 2002 “Decision” as a defense inasmuch as it did not
impose any criminal penalties and contended that Appellant was
not entitled to a jury trial.
The initial conference, originally scheduled by the
LIRAB for December 5, 2002, was rescheduled and vas held on
January 9, 2003. On January 10, 2003, LIRAB issued ite “Pretrial
Order,” stating that the issues it would determine on appeal
2. Whether the [Departnent] erred in determining that
{Gppeliant) comitced fraudulent insurance acte ender [HRS $
seerse ey)
2. If yes,
A appropri
inether the penalty assessed by the [Departeent]
on May 5, 2003, Ritz-Carlton and Marriott filed their
“Wotion to Dismiss or in the Alternative for Summary Judgment” in
the court. They argued, inter alia, that the Department had
exclusive original jurisdiction over all disputes arising under
HRS chapter 386 and that Appellant had not exhausted his
administrative remedies as the LIRAB hearing was still to be held
on May 11, 2004.
on May 22, 2003, the Department filed a substantive
Joinder to the “Motion to Dismiss or in the Alternative for
Summary Judgment” filed by Ritz-Carlton and Marriott. In
addition to adopting the arguments made by Ritz-Carlton and
Marriott, the Department maintained that “[Appellent’s]
contention that the Department intends to permit en
adninistrative hearing as to criminal penalties for fraud is
patently untrue.”
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vi.
In the court on May 23, 2003, Appellant filed his
vcross-Notion for Sunmary Judgment and Preliminary Injunction and
for Writ of Mandamus.” Therein, Appellant azgued, inter alia,
that HRS § 386-98 is unconstitutional because it improperly
delegates the state’s police power to private entities such as
Ritz-Carlton and Marriott, the police power of the state‘cannot
criminalize Appellant's statenents made at the Department
they are usually protected by the First
hearings becau
Anendnent to the U.S. Constitution, the criminal and .
administrative provisions found in HRS § 386-98 cannot be severed
since the acts leading to penalties under each are inextricably
woven together, and that even if HRS § 386-98(e) was deened
d without regard to the
severable, penal penalties would be impo
rules of evidence, a proper burden of proof, and notice as to the
specifics of the crime.
ith respect to the burden of proof issue, Appellant’ s
primary argument was that HRS § 386-98 is unconstitutional on its
face and as applied because the “statute provides no requirement
as to a burden of proof for the imposition of administrative
penalties," and, therefore, a “lesser standard than proof beyond
a reasonable doubt required in criminal prosecutions” may be
dened to apply. Appellant stated that he was “charged,
prosecuted, and fined” under the “substantial evidence” standard
of proof, which was a lesser standard than the “clear and
convincing evidence” standard used in civil cases of fraud.
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Appellant requested that the court issue a restraining order to
Prevent the DLIR, Ritz-Carlton, and Marriott from proceeding
against him before the LIRAB.
On June 3, 2003, Ritz-Carlton and Marriott filed their
opposition to Appellant's cross-notion in the court, asserting,
inter alia, that HRS § 366-98(e) does not impose criminal
penalties and that criminal penalties do not apply to
administrative proceedings.
On June 4, 2003, Appellant filed his opposition to
Ritz-Carlton and Marriott's May 5, 2003 motion, arguing that the
instant case did not “arise under Chapter 386,” so the court had
jurisdiction, and that the Department lacked the power to
determine the constitutionality of HRS § 386-98.
Also on June 4, 2003, the Department filed its
opposition to Appellant's cross-motion in the court. The
Department argued that “[Appellant) should proceed through the
administrative process” before the LIRAB, and that HRS § 386-98
is not unconstitutional on its face or as applied inasmuch as it
“epecifically provides for criminal of administrative penalties
for fraudulent acts under chapter 386, not both.” (Emphases in
original.)
On dune 6, 2003, Ritz-Carlton and Marriott filed their
reply to Appellant's opposition to their May 5, 2003 motion.
‘Therein, they contended that Ritz-Carlton and Marriott need not
be parties to Appellant's constitutional challenge of HRS § 386-
98 and that HRS § 386-98 se constitutional.
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Also on June 6, 2003, Appellant filed his reply brief
to the Department’ s objection to his cross-notion in the court.
therein, Apellent easerted that only the court could determine
ve conestat sonality of HRS § 88-98 20 he wan not required to
canaust sninistcoive cenedies and HAE § 286-38 4s punteive in
on auly 34, 2003, the coors denvd Sea Torder, ranting
tnits-cariton ond Marriott's} Hoton to Bienes, of{,) in he
pavesnative,) Zor Sumacy Judgnnt fied My 5, 2009, ad (the
bepartnnt's) Sobetntive Joiner Fited Way 22, 2009 nd order
Denying [Appellant's] Cross-Motion for Summary Judgment and”
preliminary Insonction and for Wt of Mandamus Filed Mey 23
aoos.r4 The coast found that tthe question of conststutsonlity
«the court reasoned that in 1995, Hawaii's workers’ compensation
statutes were anended and that the atendnents, for the first tine, allowed
Sifenies to'be prosecuted criminally under HRS § 386-98(d). Accotding to the
ceeeeee ner MRS § 306-38 (ec), alternatively, the Department can treat workers!
seebthention fraud os a civil matter, The court seid the Appellant had not
eee ERS hsE tagctng scninistestive proceeding was “cleariy criminal in
Seer ett tna stoted that HRS § 386-90 ellows the Department to pursue
Oi Spenaltice win place of criminal proceedings and not concurrent with
[lininbl proceedingss purevant to HRS § 36€-98(e).” Further, the court noted
Ghat Sfipbelient] has hot presented any case law that stands’ for the
piopoaitios thet @ statute which provides an adninistrative agency with two
Peereest cue civil ang one criminal, i# per se unecnstitutional.” The court
ceeieined that HRS $ 3e6-98(e) does not authorize a term of imprisonment and
Ghat the commen law hes alwaye recognized an action for civil fraud as well ss
NEED fitua: Pirther, it was recognized that the legislature had created @
SEEukery‘penaity schene sn RE §°386°90 that is less harsh than the criminal
SESEMOTY Fetes fo the monetary amcunt neeaed for an offense to qualify ase
felony charge. The court concludes that the other possible penalties, e.g,
AeNeMuelSeGaa suspension of benefite, vere clearly civil remedies. “the
[etre explained thot the legislature “took greet pains to seperate civil
SGnetsont from erininel sanctions” and that there was no possibility that
ABSUGNesE cose would becone s criminel matter. Finally, the court concluded
Met jopeiiane hed fasted to exhavet his acninictrative renedies.
Re teen erder granting sunnary Jucgnent, "(ule review an award of
summary judgnent under the cane standaro eppliea by the circuit court."
(7 Li n eee Maw. 5, 106, 039 Pe2d 20, 22
e ti the pleadines, depositions,
Sone on file, together with the
(continved. ..1
(i900), “Sureary sudgent is eppropris
Gnewers to interfogetories, and acai
2
/+EOR PUBLICATION IN WEST’ § HAKAS'T REPORTS AND PACIFIC REPORTERS+®
ee
of [HRS § 386-98] hinges upon [the court] being required to
conclude that the proceeding which was commenced and which [was]
still ongoing [was] clearly criminal in nature.” The court
found, however, that “[(blased upon the record and the statutes,
this was a finding that [{t) could not make.”
Nonetheless, the court found that “assuming for the
moment in spite of HRS § 386-73 [(1993)"] . . . [it] had] the
egal authority to pass on the constitutionality of HRS § 386-98,
. [appellant] failed to meet his burden of overcoming the
statutory presumption of constitutionality and has failed to
EE any, show that there is no genuine sssue of material fact and
the moving party i¢ entitled to's judgeent as a matter cf low." dd, (internal
quotation marks and citation omitted); While we decide the court’s order was
Ultimately” correct, we do s0 based on the grounds stated in this opinion.
“(wjhere the circuit court's decision ss correct, its conclusion will net be
aisturbed on the ground that {t gave the wrong reason fer its reling.”” eves
‘y Kuboyana, 16 Hawai'i 137, 140, £70 F.2d 1261, 12€5 (2994) (eiting Bxogke te
Mina, “73 naw. $66, 576-77, 036 8,26 1083, 1087 (1982)
gE Honolulu, 67 Maw. €99,'s07, 682 P.2a 1188, 1165 (1988) ee
Haw. 425, (30, 664 .2¢ 434, 736 (1963)). “This court nay affirm a Grant of
summary Judgment on any ground appearing in the record, even if the circuit
court gig nct rely.on it.” Ig, (esting
2 gis Haw. 40, 45, 814 Pad €6l, Bet TIDTNT
Metarthy v. Yesouku, § Haw. App. 45, 52,'678'P.20 1i, 16 (1984))
73 (1993) entitled “Original jurisdiction over
states as follows!
controversies,
Unless otherwise provided, the director of Iabor and
industrial relations shali have original juriediction over
all controversies and disputes arising under this chepter-
The decisions of the director shall be enferceable by the
circuit court as provided in section 386-9. There shall be
4a ight of appeal from the decisions of the director to the
Sppellate beara and thence to the cuprene court subject to
chapter 602 ae provided in sections 286-67 and 286-88, but
in ho case shall an appeal operate as 6 supersedeas of stoy
unless the appellate beard cr the suprene court #0 orders.
Effective July 1, 2006, there is “z right of appeal from the decisions of the
director, to the ppellete beard and thence tot
‘SoULE[,]" and net to the supreme court. HRS § 386-75 [Supe ZOU) tenphesis
soced)
28
sespon PUBLICATION IN WEST'S IDWAL'T REFORTS AND PACIFIC REFORTERY®
sn
Genonstrate the degree of irreparable injury necessary for
injunctive relief.” The court did not issue a finding as to “che
appropriate standard of proof under HRS § 386-98, The court
pitimately found “[t)here [was] no genuine issue of material
fact, and the law limits the [clireutt [elourt’s authority with
regard to HRS [e}hepter 386," and that Appellant “failed to
exhaust his administrative and Supreme Court remedies.”* :
con August 11, 2003, Appellant filed his notice of
appeal from the court's duly 14, 2003 order. This appeal vas
docketed as SC No. 25954. On Decenber 12, 2003, this court
dismissed SC No. 25954 on the ground that the court's July i4,
2003 order had not been reduced to a separate judgment, a8
required by Hawai'i Rules of Civil Procedure Rule 59.
In the LIRAS on January 9, 2004, Appellant filed’a
motion to stay proceedings. Appellant asserted that he intended
to appeal the court’s July 14, 2003 order once a final judgment
was entered. He maintained that the LIRAB should stay all
+ Tnasmuch es the LIRAB proceeding has been completed, the issue es
to exhaustion ef saninistrative renedies has become moot. Tt is well
SEeSBISERES thet this court will not consider issues before it that ha
[Become moot:
‘The duty of this court, as of every other judicial tribunel,
Tees sacide ectual controversies by a Judgment which can be
Eisried into effect, and not te give opinions upon moot
Guest ions of sbetract propositions, or to declare principles
QEules of lew whieh cannot affect the matter in issue in
the case before it. Courts will net consune tine deciding
Sbierace propositions ef lew or moct cases, and have no
SOridiction te do so,
kong v. Bd. of Recents, Univ. of Hawaii, 62 Haw, 392, 394-95, 626 P.2d 201,
Heit Tait Giciticne tnitted). Accordingly, we need not address Ritz-Cariton
itd macriceers argument (1), the Departnent’s argument’ (3), and Appellant! =
and Marricnent (1) regarding exhaustion of administrative renedies in the
court sppeal- See infra.
28
‘s#470R PUBLICATION 18 WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS
proceedings until the constitutionality of HRS § 386-98 was
subject to this court's appellate review.
On January 28, 2004, the court entered ite final
judgment in favor of Ritz-Carlton, Marriott, and the Department,
and against Appellant. On Febfuary 6, 2004, Appellant filed his
notice of appeal from the court’s January 28, 2004 final
SC No. 26389.
judgment. This appeal was docketed
vit.
a
In the LIRAB on February 6, 2004, Ritz-Carlton and
Marriott filed their opposition to Appellant's motion to stay the
LIRAB proceedings. ‘Therein, they azgued, inter alia, that
Appellant was unlikely to prevail on his appeal and that he
should exhaust his administrative remedies.
on February 11, 2004, the Special Compensation Fund
fled its opposition with LIRAB to Appellant’s motion to stay the
LIRAB proceedings. The Special Compensation Fund advanced
similar arguments as did Ritz-Carlton and Marriott in their
opposition.
on February 20, 2004, the LIRAB denied Appellant's
motion to stay the LIRAB proceedings.
On March 12, 2004, Appellant filed his “Motion to
Dismiss Complaint and/or for Summary Judgment, to Dismiss
Criminal Charges, Compel Specificity and Particulars, and to Bar
Independent Medical Examination Report of [Dr. Toeller]” with the
LIRAB. Appellant argued, inter alia, that Ritz-Carlton and
30
‘*A7OR PUBLICATION IN WEST! S HAWAI'I REPORTS AND PACIFIC REPORTERE+#
SSS
Marriott had failed to show that Appellant had committed fraud
Ansofar as he did not receive any benefits after March 30, 2001,
Appellant was not treated by Dr. Egami after December 30, 2001,
except for a follow-up visit in June of 2002, Appellant would not
be able to cross-examine Dr. Toeller, who had passed away, and
Appellant's statements before the Department were “self-advocacy”
and constitutionally protected conduct.
on March 31, 2004, Ritz-Carlton and Marriott filed
their opposition to Appellant’s March 12, 2004 motion with the
LIRAB. They argued, inter alia, that the Department never
considered or imposed any criminal charges against Appellant, the
fact that Appellant did not receive any PPD benefits is
immaterial because HRS § 386-98 is violated when a person acts
“so as to obtain benefits” through misrepresentation, and
Appellant could offer rebuttal evidence to Dr. Toeller’s report.
On April 1, 2004, the Special Compensation Fund filed
its joinder to the opposition filed by Ritz-Carlton and Marriott
to Appellant’s March 12, 2004 motion with the LIRAB. The Special
Compensation Fund did not make any additional arguments.
On April 8, 2004, LIRAB denied Appellants March 12,
2004 motion.
On May 3, 2004, the parties participated in a
settlement conference. A settlement was apparently not reached.
n, as stated previously, this statenent appears to be
incorrect inasmuch ae Appellant was awarded 77D benefite for Apeii 10, 2001,
See supra note 5
3
‘ss+FoR PUBLICATION I WE:
OO
The LIRAB hearing was conducted on May 11, 2004. At
that hearing, counsel for Appellant objected to the adnission of
br. Toeller’s reports, asserting that Appellant was unable to
cross-examine Dr. Toeller as the doctor was then deceased, Dr.
Toeller's expertise had not been established, and his report, was
not expert testimony but was, rather, “a conment on
credibility." Counsel for the Special Compensation Fund argued
in response that Dr. Toeller was still alive when his reports
were introduced into evidence at the Septenber 6, 2001 Department
hearing and that she believed he died on December 29, 2001. The
hearing Officer denied Appellant's request to exclude Dr.
Toeller's reports inasmuch as Appellant did not move to exclude
them either at the Septenber 6, 2001 or September 3, 2002
hearings and they became part of the Department file, the reports
were relevant, material, and not repetitious, and Appellant had
anple tine to develop rebuttal evidence.
Appellant testified that he was born and raised in
‘Tonga and did not graduate from high school. He stated that he
came to the United States in 1978, but still spoke Tongan at
home, and that English was his second language. Appellant
related that on March 29, 2001, he told Dr. Egami that he wished
to return to work and, therefore, Dr. Egami released him for work
starting March 30, 2002.
an hie post-ne
Appellant alec asserted that br. Toeller’s reports were hei
Felis to rade this ieeve on appeal
ing brief filed with the LIRAB on June 25,
reay. However, he
32
‘+#+70R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**#
During direct examination, Appellant gave a brief |
description of his involvement in dressing the cow:
(APPELLANT): 1 was helping only for ~~ and 1f they
‘show the video, I’m not really selping then on thet. 1 was
Starting help on -- for == I don't know how to =~ peel the
Skin, something 1ike that. And when I feel start get pain
fon my lower back, and then T'was sitting down on owner. of
fhe"farm truck. "He was pot dowa his bed, and T'was sitting
Goun there and talk story until they finish make the com.
And then I help them put the bag thing up, put the seat
inside. And ny nephew put all the bag inside the truc)
icotusel roR APPELLANT): The Bags of meat, how many
pounds you figure they weigh? °
IAPPELLAWE] : About 16, 2 pounds.
Appellant testified that he had trouble speaking with
Dr. Toeller and that he did not understand several things Dr.
Toeller had said to him, He also stated that he could not «
understand Dr. Toeller’s May 9, 2001 report.
upon cross-examination, Appellant testified that he
stood up during the dressing of the cow to stretch his back:
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT}: And to do the
<- the butchering, you hed to bend forward at your waist; is
that Fight?
[APPELLANT]: Yes.
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT]: And you were
bent over at your Malet for kind of long tines?
TAPPELLANT]:"If the guys see in the video, it’s not
too long? and mostly I Just bent down little bit for, 1ike,
helping on sie) skin the cow and I-have to stand up: Its
ike exercise, And what the doctor went explain on that.
gene hearing in Wailuko 48 the kind of exercise it was.
icduiséL FOR RITZ-CARLTON AND MARRIOTT]: Okay. 80
ing at the beginning of the video you have to
‘S'-= and streteh your back or something?
[APPEDLANT): Right.
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT): Okay,
we watch the video closely, we'll see that, oF you
hot on the ideo?
APPELLANT]: I don’t know Af on the video or not on
the video.
(COUNSEL FOR RITZ-CARLTON AND NARRIOTE): What else did
you have to do while you were skinning this cow to protect
your beck?
TAPPELLANT] : That's all.
Appellant further testified that during the approximately one
33
/°FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REFORTER*#
hour it took to butcher the cow, he did only @ small amount of
work:
(apretane] And 1 no even finish up skinning
the cow. It’s only one side. And then T'was feel pain on
my lower back, and 2 wes eitcing down with owner of the
fern.” And we was talk story, and they finish working on the
cow.” Some tine I only cone down to help little bit is just
held the bag and hold sture like =~
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT): So you said
you weren’e doing most of the work; somebody else was?
(APPELLANT): Yes. 1 had ay brother-in-law and my
nephew that mostly do che work.
(COUNSEL FOA RITZ-CARLTON AND MARRIOTT]: Okay. And
yying that you only helped skin part of the com, and
then’ jou sit down and rest; se that whet you're saying?
[APPELLMNT]: Yeah. I no even ~~ when T sit down rest,
then some tine they ask me for,nelp. 1 come down again,
Like hold some other thing. But T’m not even finishing the
mole cow ayselt
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT): Okay. Did
you finish skinning the com, oF you saying you not =~ you
Sian! even do that?
(APPELLANT]: T went start, bot I never finish skinning
the come
(COUNSEL FOR RITZ-CARLTON AND MARRIOTT] : And you're
eying, then, after that, you only helped once in a while?
{aPPELiavt]: Yeah, once in a while.
[COUNSEL FOR RITZ-CRRLTON AND MARRIOTT]: And how long
id it toke to butcher this cow?
[APPELLANT]: Ino rerenber exactly. Maybe an hour
[COUNSEL FOR RITE-CARLTON AND MARRIOT] Okay. And
for that one hovr, how much of it did you spend cuvting and
stoee?
[APPELLANT]; For that one hour, only about 18 minut
I vas helping then.
[eOUNSEL FOR RITZ-CARLTON AND MARRIOTT)
(APPELLANT): Right
you're
25 minutes?
Appellant was questioned regarding his specific activities in
dressing the cow:
(COUNSEL FOR RITZ-CARLTON AND MARRIOTT)
cut any-of the neat and put it in the bags?
TAPPELLANT]: No, I'never cut any meat. Only I do
was holding the bag.
[COUNSEL FOR ITZ-CARLTON AND MARRIOTT]: Okay. So you
said you never cut neat and put it into Bags? Is that what
yousay?
APPELLANT): I no renenber if T cut neat.
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT]: You ever cut,
Like, @ leg off ang put it into bes?’
TAPPELLANT] I'never 1ift up a eg
[COUNSEL FOR AITE-CARLTON AND MARRIOTT]: You never
1ift up a eg?
APPELLANT): Yes. I was holding a leg when they try
to clean up the inside, This is only when the cow wes,
Mine, Taying on the Back, and ==
band did you
38
“s++POR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS**
Sees
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT}: Okay. And ==
and wnen you were bending a Little bit, or wnat we call 90
Segree angie?
jabpELLAWT]: 1 don’t remenber what - - how hard I was
bending.
Appellant explained that he did not 1ift any bags and only helped
to arrange them in a truck:
{COUNSEL FOR RITZ-CARLTON AND MARRIOT?) + And how many
bags of mest did yoo get from that con? .
[APPELLANT]? About 15, 17 bagi].
[COUNSEL FOR AITE-CARLTON AND MARRIOTZ) : 25 to 17.
Ang you said ~~ after the bags were full of meat, cid yéu
Lite "any ef the bags?
[APPELLANT]: No.
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT]: So you never
Lifted = baa?
(APPELLANT) : 2 no even LSft a bag. 1 remember T 1ift
= = 1 had two bag[s] of three beg(e) ie the one ~~ don’t
now how to explain that one, but from the inside the cow
after they cleen up and they put in the different bag. 80
One is the cut or) like, the = = Ihave = hard time to
Cxplain thet one, ‘but 1¢7e a1] che one on the meat. 1 never
Gven Ist up that on the mest. 2 wes berping them’ when T
ae go up oh the truck, just chat all the etuff was on top,
and J'eriea to make it goin the right way.
Appellant related that he vas aware that a Ot rating
meant he would receive no PPD award, but that @ 108 rating meant
he would receive some money, but that he had not testified that
he believed he should get a 10% rating to receive money:
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT]: Did you think
zero percent would sean you get zero money and 10 percent
Mould mean you get some money?
TaPPELLAN?]; Ef =~ if there wes, 7 would say yes, T ——
1 == 10 percent.
[COUNSEL FOR RITZ-CARLTON AND MARRIOTT): Okay. So
you're saying that you thought 10 percent would give you
Hone honey and zere percent would give you no money?
TAPPELLANT]: Yes.
icouRSEL FOR RITZ-CARLTON AND MARRIOTT]: At the
hearing on September 6, 2001, you testified you could not
squat for nore then 5 feconds, you could not bend for nore
than 10 to 18 seconds, you know, you only went to church,
and you ceuidn’t go hunting, thst kind of stuff. And we
were talking about the 10 percent rating that you thought
Jou should get. le the resson you testified about all this
Zforf because you thought you would get some money?
iabeeviant) < «ALL I want know - - the hearing -
= i noleven know what 2 the 10 percent to get money. T
38
FOR FUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER*+#
never even testify for get money. T testify whet they ask
ime the question. I was answer the question.
Alatan testified and narrated the March 29, 2001 video
while it was being shown. He stated that the video showed
Appellant cutting meat from the cow and lifting bags. Upon
cross-examination, Alatan testified that there were children
helping to carry meat and that he did not know how much the bags
being carried weighed. He also stated that the video showed
Appellant standing by the car and doing no work and resting while
sitting on a truck. The hearing was then concluded.
on October 7, 2004, the LIRAB issued its “Decision and
Order.” The LIRAB issued the following relevant findings of fact
(findings) +
4, tnmediately after (Appellant's) warch 29, 2001
office visit with DF, Egami, [hitz-cariton’s) pri
Investigator felloved (Appellant) and videotaped him fron
approximately 11:26 a.m. to 12:12 pim., helping two to three
ether men skinning and slaughtering » 300-400 pound caress:
of a cow on a grassy area near the tide of a rod.
During this period of tine, [Appellant] was videotaped
standing with 2 knife in his right hand, and repeatedly
Bending over to skin and slaughter the cow, and to bag the
reat_in trash bags. hen bending, [Appellant) stood with
hie fect apart ins stance wider than hie hapa. Ke would
then bend over at the waist with his ame infront of him to
either skin or cut the carcass.
[Appellant] alternated between bending over and then
straightening up in 2 standing position throughout this
period. Between 11:26 acm, and 12:12 p.m., (Appellant) bent
Over and straightened up about 44 times. [Appellant] also
Walked about of around the animal in between the bending and
Standing in order to Work on another pert of the carcacs.
At tines, (Appellant) was bent over for several seconds? at
other tines, he was Dent over for close to 20 seconds.
There were a few instan [appellant] stayed bent
over continuously fer nearly one minute:
Between 12114 p.m. 6 p.m, [Appellant] was
videotaped repeatediy standing and bending ever in the bed
ofa pickup truck arranging bags of meat. [at ]bout 12:16
Finsy iAppellant) got cot of the truck and walked over to
another truck, At'12:17 p.m., [Appellant] mas shown sitting
om on 2 truck bes.
Between 11:26 81m, and 12:16 poms, [Appellant was on
his feet practically the entire tine, standing, walking, oF
Banding overs fhnaylinnt did nat ardagen or aaninit a
36
seepon PUBLICATION IN MEST’ HAMAI'T REFORTS AND PACIFIC REPORTER**|
©. On May 9, 2001, (Appeliant) sew Dr. Toeller for a
permanent. impairment evaluation. [Appellant] knew the
Burpose of che evaluation and that cepending on the extent
Be hie smpoitment, he would receive sone monetary benefits,
ve) that js rating war Ob, Ae
tr After the (IME, Dr. Tocller reviewed the
surveiliance video. In report dated May 10, 2002, Dr
Toeller stated that there vere marked differences betw
[appellant's] presentation in the video and at his office.
Recording to Dr. Toeller, the video confirmed his belief
thse (appellant) gave # ‘purposely factitious presentation’
at the (INE). .
‘Sgptanber 6, 2001 (Depertment] searing
7th September 6, 7001, 2 nearing was held at the
[nepartsent] before hearings officer Rick Kelley. A notice
of the hearing was sent to (Appellant), notifying him that a
Rearing wecla’be held on Septenber 6, 2001, for the purpose
ef determining PPD, TT, and disfigurenent|
eo at the September €, 2001 hearing, [Appellant]
testified that he and Or. Egani discussed the need for # PPO
Eiting so that he could get on with ie life. " (Appellant)
farther testified that he disagreed with Dr. Toeller’s OF
Eating end had ciscussed Dr. Toeller’s rating report with
Be. Eons, appellant] believes that he should have been
Pited si0i~ fer his work injury. [appellant] testified that
fe stiii hed pein in the back everyaay, that he sometines
Pook overthercounter Tylenol for the pain, that he had been
Eestricted in his activities since the work injury, that
Sotside of work, he did not do anything except. ge to church,
Gast he could no longer go honting or clean animals, that he
Could try to clean animals, but would not have to, since he
fed fenily co de its and that he could only squat’ for about
S*Seconds at a time’ and bend over from 2 standing position
for no. onger than 25 seconds,
‘gi adver the Septenber 6, 2001 hearing, the
tbepartaent] issued a decision dated Septenber 28, 2001,
{nse"Gnorced, ‘onong other thines, TIO snd [TPD) benefits for
Verlous periods up through Apri 10, 2001. The (Departnent]
fermined thet (hppeliant) ad not’ sustain any PPD as a
Fesult of the November 2, 2000 work injury.
it! Gn'septenter 3, 2002, « hearing was held before
the [oeparenent] cn [Rité-cariion ond Rereiett’s) fz0ud
EGiplotnt, "aU the bearing, [Ries-Cartten and Marriott]
Presented the surveillance evigence to show that (Appellant)
Pogaieeeg frau ey alerepresenting his physseal conaition te
Sr, teciler at the Hay 37 2001 {IME], and to the hearings
Chistes tee Ibeperemerti) at the September é, 2001 hearing
Gn the extent of FFD
se eecabiieh sierepresentations by (Appediant) at the
septenter 6, 2001 hearing, (Rits-Coriton one Marriott) read
{nko the record portions of the transcript of the bearing
atehout obSectich fron [Appellant]. (appellant) alse. aig
hot ebject to tRite-curlten and sarsioeera] rellance on the
Tebeenones he node ot the hearing to support Ite complaint,
for freud. a
2
‘s+4FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER*#*
12. By decision dated October 11, 2002, the
[Department] determined that [Appellant] committed fraud, in
viglation of HRS § 386-36(2) (8), when he misrepresented
and/or concealed his actual physical capabilities to Or-
Toeller at the May 5, 2001 [IME], and to hearings officer
Kelley at the September 6, 2001 hearing, for the purpose of
obtaining PPD benefits. Pursuant to HRS § 386-98{e), the
[Department] assessed various sdminietrative penalties
against. [Appellant],
14. [Appellant] confines that between March 29, 2001
and September €, 2003, his back condition was about the.
Gene, and that what he could or ould not do on Mazch 29,
2001, was the sane for September €, 2001
IS. Based on our review of the surveillance video that
documented [Appellant's] ability to bend repetitively for
Shout ¢4 times during 2 forty-five minute period, sometines
{bp to 20 to 80 seconds at 2 tine, to skin and slaughter a
cow, without evidence of discomfort and pain, end besed on
Dr. 'Toeller’ s report that. [Appellant] grimaced in pain
Ehtoughout the entire examination snd conpisined about pain
when Bending over, and being severely restricted in his
activities due to pain, together with the statenents be nade
fo hearings officer Kelley, including his statement that
Bending significantly worsened his back pain and that he
could not bend longer then 15 seconds,
tlm 2 ncesied bis tro
hearing before hearin
The ability to bend ond engage
in physical activity, as well as the level of pain that
perienced while performing physical activity are ma
facts to be considered in the evaluation of impel tment. and
disability. Ke find that [sppellant’s] knowledge of the
purnose for the MEL with Or, Toeller and the Sentesber 6,
(2001 hearing shows shat [éupelTantl_intenticnalay or
fa Tier and -besrincs officer Reiley forthe
Te, At trial, TAppelisnt) tried to mininize his
participation in the slaughtering of the cow.” [Appellant]
Kestified that he only helped skin part of the cow and did
hot cut any meat, that he only bent down a “litele Bie” to
help, and that he only helped fer 15 minutes out of the hour
er 50 it took to skin and slaughter the cow. -anpellant]
Scattadicted binselt ona number of occasions urine trial.
i fen in th
butcher: of the animal is certsinl
sunported By the aurveiiiance video.
38
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Benalsics
17, The [Department] imposed on [Appellant] :
adninistrotive penalties in the form of a fine of $5,000.00,
iotospension ef all benefite, snd reimbursenent of
Setorney's fees and costs incurred by [Ritz-Carlton and
Marriott] te prosecute the fraud complaint.
(Emphases added.)
‘The LIRAB also issued the following conclusions of law
(conclusions) :
We _coneds o
i neu
Tn this cade, we found that [appellant] intentionally
or knowingly acted to misrepresent and/or concesl # material
fect selating te his physical capability so as to obtain PPD
Benefise, (Appellant) committed these fraudulent insurance
pets ‘at ine Tine] with Ors Toeller and at the Septenber 6,
201 hearing to determine the extent of PPD.
Wie do not agree with [Appellant] that he cannot be in
viclation ef HRS § 586098(a),, Because whatever acts he may
have committed did not result in an award of PPD benefits:
ty no Feauirenent i ests ee
ie siso co net agree with (Appellant) that (Rite~
iten and Harriott] failed to establish fraud under HRS §
See-se (2) (6) beyond @ reasoneble doubt or with clear and
Gonvincing evidence. Porsvent to HRS § 91-10(5) [ (Supp.
S08)}, we believe that the correct standard of proof in
Contested case hearing under Chapter 366 is preponderance of
Eke evidence, unless the low provides otherwise. ie
nol ait ah ha "
hee Tar Bs arte
Ttiwss nenticned in [Appellant's] post-trial
nenorandun thet [Rite-Carlton and Marriott) did not
[pecificelly ellege in its froua complaint that (Appellant)
BES nisrepresented hie physical condition to hearings
beficer Kelley ot the September 6, 2001 hearing. He note:
is reo rent Di
el net and wae
z su The [Department] issued an
detener 11, 700! decision finding fraud based on
appellant's] stetesents to Dr. Toeller and to hearings
officer Kelley.
Fecsraingly. any Leave relating to the eileged
Geficrency of [kitz-cariton and Marriott's} fraud compleint
fe not Before us
38
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$s
2. naged on the foregoing, we concluse that the
foravent to HRs’ § 3-90 (0) for vielationd cf ane # 306-
Sea) (8) were appropriate
(Emphases added.) The Department’s October 11, 2002 “Decision”
was, therefore, affirmed by the LIRAB.
On October 15, 2004, Appellant filed his notice of
appeal with this court pursuant to HRS § 386-88 (1993) and
Hawai'i Rules of Appellate Procedure (HRAP) Rules 3 and 4. This
appeal was docketed as S.C. No. 26899 (the administrative
appeal). On September 5, 2006, this court consolidated the court
appeal and the administrative appeal under S.C. No. 26389.
vit.
In his appeal Appellant requests that this court issue
a writ of mandamus to restrain the State of Hawai'i, Rite
Carlton, Marriott, and the LIRAB from proceeding against him
without substantive’ and procedural protections. In the court
appeal, Appellant contends that (1) “[HRS § 386-98) is
unconstitutional because it is an improper application of the
Police power of the state,” inasmuch as (a) “[t]he filing of the
_WRS § 386-88 (1993), entitied “Judicial Review,” provides in
relevant part:
The decision or order of the ILIRAS] shall be fina!
fang conclusive, except a8 provided in section 386-69, unless
within thirty days after mailing of certitied copy of the
decision or order, the [Department] or any cther party
appeals to the suprene court subject to chapter €02 by
filing e written notice of appeal with the [LIRAE].
Effective July 1, 2006, the decision or order may be appealed to the
intermediate court of éppeals, ond not to the euprene court, HRS $. 386-68
(Supe. 2008).
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complaint in the [Department] is the conmencement of criminal
charges,” (b) “{t]he police power of the state may not be
constitutionally delegated to a private entity,” (c) the
“[plolice power of the state may not criminalize or penalize
protected conduct,” (d) [HRS,§ 386-98} is a penal statute,” and
(e) “[s]ince the acts constituting criminal and administrative
penalties are inextricably interwoven, the statute is not
severable,” and (2) “[t)he statute is unconstitutional on its
face and as applied,” because (a) “[e]ven if the statute were
dened severable, it would permit penal penalties without
adherence to rules of evidence, burden of proof, and other
protections,” and (b) [t]he [Department] has unbridled
discretion to impose penalties without appropriate guidelines.”
% tn gegponge in the court appeal, Ritz-Carlton and Marriott
maintained that (1) Appellant foiled to exhaust administrative renedies,
T2i"s{alo criminal charges were initiated by the (Departaent),” (3) “(tibia
he does sot invoive common law freud =. nor criminal fraud,” (4) "RRS
$°58eC90 sa constitutional,” insofar ae (a) st bears a rational. relationship
fo the Jegitinere state interest of preventing and punishing workers
Conpencat ion fraud, (b] "[x]hen appropriate administrative penalties are
Smposes, HES § 286-98 te not a constitutionally serious offense,” (e) "[s]ince
ine § 386-98 does not specify ancther evidentiary standard, the preponderance
Of the evicence standard applies,” and (d) “HRS § 386-96 16 not
Unconststutsonelly vague.”
Th response in the court appeal, the Departnent ai
(2) “[e}he [court] correctly concluded that’ (HRS § 286-98) was
Constitutional,” insamich as fa) “[e]he plain language of [HRS § 366-98)
Srovides for criminal of adninistrative penalties to be brought in the courts
Er'the administrative agency, respectively,” (emphases in originel), and
te MfaRs's 4ee-30], on ite face, does not delegate the State's police power
iSia private perty,” (2) "[t]he [cosre) correctiy ruled that (HRS § 386-98]
Ole noe entitie [appellant] to protections afforded » criminal defendant when
{appeliant] only feced civil adninistrative penalties,” (3) [t]he [court]
Uiictiy tuled that Appellant] was required to exhaust administrative
nedies before challenging the constitutionality of [HRS § 386-56) in the
ESurtes* end (8) *[t]he court properly denied (Appellant's) request for
Gnjunction ox a writ Of mandamus es (Appellant] has other means to challenge
the alleged wreng.””
Tnteply dn the court appeal, Appellant argues that (1) “[t]ne
[court] has orisinal juriediction te determine the constitutional validity of
A Eetuces and edminigtrative exhaustion ie not required,” (2) “[Rite-Ceriton
(Goneinved.--)
ete that
a
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8.
In the adninistrative appeal, Appellant posits that
(2) “(HRS § 386-98) is an unconstitutional application [of] the
police power of the state, and is void on its face, and as
applied in this case,” (2) “(Ritz-Carlton and Marriott have]
failed to prove the essential elements of fraud," insofar as,
(a) “[a}ssuming arauendo that [Dr. Toeller’s) report was .
admissible, there was no proof that the representations or acts
of [Appellant] were ‘false,’ (b) “(t]he LIRAB relied on an
impermissibly low standard of proof,” (c) “[t]here was no proof
that the statements made to Dr. Toeller were made in
contemplation of [Dr. Toeller’s] reliance on them, and that {Dr.
Toeller] did rely on those statements,” (d) “[t]he statements of
(appellant] were immaterial, since no benefits were paid after
March 29, 2001 (as charged),” and (e) “[t]here was no legal
injury, i.e., detrimental reliance by [Ritz-Carlton], (3) [Dr
Toeller’s] report did not comply with the requirements to the
guides to the evaluation of permanent impairment,” (4) “(the
LIRAB] should have taken judicial notice of The Guide to
Permanent Impairment, Sth ed., AMA Press 2001, which provides the
analytical framework for the assessment of permanent impairment,”
and (5) “[Dr. Toeller] rejected, and did not ‘rely’ on
[Appellant's] statements.” In conjunction with his points on
(. continued)
and Warrictt) were required to prove by ‘clear and convincing evidence’ that
fraud wes connitted under [RS § s86-98(2) (€)],” and (3) "[2instiation of
criminal charges by 2 private party, and concurrence by the (Department)
constitutionally prohibited.”
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‘appeal, Appellant challenges findings 5, 6 7, 8 9, 11, 13, 14,
15, and 16. He also objects to conclusions 1 and 2. Appellant
also maintains that HAR § 12-10-77 was violated “in that the
complaint does not indicate the date, the nature of the
violation(s), and related docusentation as required(.)”
Appellant requests that this court reverse the LIRAB/s
decision.”
tp response in the administrative appeal, Ritz-Carlton and
Moreiots assert thet (1) “HAS § 386-98 is constitutional,” (2) “(in the”
(herpretation of a statute, great deference must be given to the
iMGiEretacion by the stave regulatory authority cherged with ite
Uiniserstion,” (3) "lujhie self-advocacy is permitted, misrepresentation is
acriataropriate and the basis for a fraudulent complaint should include not
Rely Bhat is icentities ina complaint, put should include all subsequent
Probeedinges” (4) "this case does not involve common law fraud or the
PaSependent tort of fraud. - . nor criminal fraud,” (8) “(t]he fact thet
Heese Segustay dig net ‘roceive any monetary benefit from his freud should
BPGlasegerded eens, § 386-98 requires only that the acts be done ‘so as to
Shesin benefits,’ (6) "islince there is no specific statute or rule
SUitalning to the epplicable standard of proof in workers’ compensation
Peaidulene insurance act cases in Hewal'i, the ‘preponderance of the evidence’
itandard applies,” and (7) the “Guides to the Evaluetion of Permanent
Inpaimment [were] appropriately used.”
In responce in the administrative appeal, the Speciel Compensation
rund maintains thet 1) “[Xppeliant's] points of error regarding challenges to
i'tunber of [findings] were net argued, thus, pursuent to (HRAP) Rule
Bein) (7), the points not argued should be deemed waived,” (2), “{LTRAB]
2000) Us Setebained thst [appellant] committed 2 fraudulent insurance act
Under {aks § 366-360) (€)," insofer as (a) “(HRS § 386-88] sets forth the
Wegeicenents fer a fraudulent insurance act under chapter 366,” (b) “[tIhe
Statute does net require the schene to connit fraud De successful,” (c) “(t)he
[Sglalacive history vetlects a legislative concern about fraud and an intent
iG%gcal harshly with indivicuele wno attempt to defraud the workers’
SCopentation aysten,” and. (a) "(t]he (LIRAB) correctly found that (Appellant
Sieigcea hes e”seerée,""(a} *(e]ne (LIRA) correctly applied the preponderance
Ue the evisence burden of proof as provided in HRS § 91°10(5),” and (6) “(HRS
$'s868o6) 1s constitutional on its face and as applied, and (Appellant) has
failed to articulate @ coherent argunent in challenging the statute's
Constitutionaliey.”
Sn reply in the administrative appesl, Appellant argues that (1)
s[flatiure to require epecification of charges is'# violation of due process,”
UP ixgpetient’s) foncemental right to confront and cross examine @ witness
inst’ hin wat @ violation of dve process,” (3) “(HRS § 386-98] must be
Cicely construed," insofar ae (a) *{t)he statute is penal in character since
Strapplies peneiti¢s and forfeitures,” and (b) “[s]tatutes in derogation of
RESBE'GG Euce be strictly construed,” and (4) “[t)he use of a preponderance
Of the evidence standara is viciative of due process.
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1x.
“Review of a decision made by a court upon its review
of an administrative decision is a secondary appeal. The
standard of review is one in which this court must determine
whether the court under review was right or wrong in its
decision.” Lanai Co. v. Land Use Comm'n, 105 Hawai'i 296, 306-
07, 97 P.3d 372, 382-83 (2004) (quoting Soderlund v. Admin, Dir.
ofthe Courts, 96 Hawai'i 114, 118, 26 P.3d 1214, 1218 (2001)
(internal quotation marks and citation omitted).
Appellate review of the LIRAB’s decision is governed by
HRS § 91-14(g) (1993), which provides that:
Upon review of the record the court may affirm the
‘deckaion of the agency or renand the case with inetructions
fer further proceedings; or it may reverse or modify the
decision end order if the substantial rights of the
petitioners may have been prejudices because the
Saninistrative findings, conclusions, decisions, or orders
(2) Im violation of constitutional or statutory
provisions) oF
(2) Ip excese of the statutory authority or
Shrisdiction of the agency! oF
13) Made upon unlawfa! prccedures or
(8) Affected by other error of laws oF
(3) Clearly erroneous in view of the reliabii
‘probative, and substantial evidence on the
snole record: oF
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exereise of discretion:
“Under HRS § 91-14(g), [conclusions] are reviewable under
subsections (1), (2), and (4); questions regarding procedural
defects are reviewable under subsection (3)7 [findings] are
reviewable under subsection (5); and an agency's exercise of
discretion is reviewable under subsection (6). ="
Hawai'i Newspaper Auencv, 89 Hawai'i 411, 422, 974 P.2d 51, 62
44
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a
(1999) (internal quotation marks and citations omitted).
ss(t]he courts may freely review an agency's
conclusions of law./" Lanai Cox, 105 Hawai'i at 307, 97 P.3d at
363 (quoting Dole Hawaii Div,-Castle & Cooke, Inc, v, Ramil, 72
Haw. 419, 424, 794 P.2d 1115, 1128 (1990)). The LIRABYs
conclusions will be reviewed de nove, under the right/wrong
standerd. Tete v. GIE Hawaiian Tel. Co., 77 Hawai'i 100, 103,
961 P.2d 1246, 1249 (1994) (citing State v. furutani, 76 Hawai't
172, 180, 873 P.24 51, 59 (29940).
“an agency's findings aze reviewable under the clearly
erroneous standard to determine if the agency decision was '
clearly erroneous in view of reliable, probative, and substantial
evidence on the whole record.” poe v, Hawas't eat:
Hd, 67 Hawai'i 191, 195, 953 P.2d 569, 573 (1996) (citing
Alvarez v. Liberty House, Inc., @5 Hawai'i 275, 277, 942 P.2d
539, 541 (1997); HRS § 91-14(g) (5). “*An 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 a firm and definite conviction that a mistake
hae been made.’” Poe vy, Hawai'i Labor Relations Bd., 105 Hawai'i
97, 100, 94 P.3d 652, 655 (2004) (quoting Kilauea Neighborhood
Ass'n vy, Land Use Comm'n, 7 Haw. App. 227, 229-30, 781 P.2d 1031,
1034 (1986).
“the interpretation of a statute is a question of law
which this court reviews de novo.” Kuhnert v, Allison, 76
Hawai'i 39, 43, 668 P.2d 457, 461 (1994); see also Franks v, City
as
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S$ County of Honolulu, 74 Haw. 328, 334, 843 P.2d 668, 671 (1993).
“When construing a statute, our foremost obligation ‘is to
ascertain and give effect to the intention of the legislature,’
which ‘is to be obtained primarily from the language contained in
the statute itself.’” franks, 74 Haw, at 334, 843 P.2d at 671
(citations omitted) .
x
Initially as to his request for a writ of mandamus from
this court, it appears that Appellaht did not file a petition for
writ of mandamus with the clerk of this court and, therefore, did
not satisfy the procedural requirements set forth in HRAP Rule
21. Accordingly, we would not have jurisdiction to issue a
M As to jurisdiction concerning the writ of mandamus, “(s]11 cases
addressed to the jurisdiction of the suprene court...” shall’ be filed with
the suprene court as shall be provided by the rule of court.” HRS § €02-5(8)
(1393); gee also WRAP Rule 17 (stating that *[o]riginal actions sneluding
cations for writs or other relict, shall conform to the requirenents of
any applicable statutes and to such orders as mey be entered by the appellate
court te which the case 1s assignes” (exchasis eddea) |
WRAP Role 21(b) sete forth the procedural requirements for “writs
sndanus directed to a public officer"!
of
v1 Ti rs 7
he subrane court with proof of service on the officer and
The attorney general or the chief legal officer of the
court, as applicable. The petition shall conform to the
Feguitenents of subsection (s) of this rule. Upon receipt
of the prescribed filing fee, the sppeliste cleft shall
Gocket the petition and submit it te the supreme court for a
Geternination as to whether it will be entertained, If the
court elects to entertein the petition, it will be handled
oitice:
(Emphasis added.) RAF Rule 21(a) requires that [t]he petition shell
contain: (i) « statenent of facts necessary to an understanding of the issues
present int of iscues presented and of the relief sovnty ane
Gi) isons for Leeuing the weit.” HRAP Rule 2i(a) further
Girecte thet "iclopies cf any erder or opinions oF parte of the record thet
ay be essential te an understanding of the satters eet forth in the petition
shail'be attached to the petition.”
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writ of mandamus in this case.
As to 2 writ of mandamus from the court, we observe
that Appellant has provided no discernable argument that would
support an issuance of this extraordinary writ from the court.
‘this court may “disregard [a] particular contention” if an
appellant “makes no discernable argument in support of that |
position{.]” Norton v. Adnin, Dir. of the Court, 80 Hawa‘ 197,
200, 908 P.2d 545, S48 (1995) (citations omitted). Therefore, we
disregard Appellant's contentions as to the court issuing a writ
of mandamus.”
xr.
Appellant asserts that HRS § 386-98 is unconstitutional
because it is an improper application of the police power of the
state. Appellant must overcome the presumption that HRS § 386-
98 ie constitutional.!” Except with respect to suspect
classifications, “where it is alleged that the legislature has
acted unconstitutionally, this court has consistently held .
‘that every enactment of the lecislature is presumptive:
constitutional, and a party challenging the statute has the
burden of showing unconstitutionality bevond a reasonable doubt.
. + The int n
%—-necordingly, we need not reach the Department's argunent, (4) in
‘the cout apes! thot the court properly denied Appellent’s request for an
Gnjunetion or e writ of mandamus.
‘See Appellant's argument (1) in the court eppesl, and axgunent (1)
in the administrative eppea =
1 See Rite-Carlten ond Marriott’ # argument (4) (a) in the court
appeal
a
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unmistakable.” Blair v. Cavetanc, 73 Haw. 536, 541-42, 836 P.2d
1066, 1069 (1992) (internal quotation marks, brackets, and
citation omitted) (emphases added). In this regard, Appellant
asserts that the filing of the complaint initiated criminal
charges and HRS § 386-98 improperly delegates the police power of
commencing criminal charges to @ private entity." Appellant
states that he “does not challenge the statute as having
relevance to public health, or welfare, but on the basis that it
permits a private party to initiate a criminal complaint against
2 citizen, as occurred in this case, without the protections
inherent in ali criminal prosecutions.” (Emphases added.)
However, Appellant was subjected to the administrative
penalties set forth in HRS § 386-98(e), and not criminal
penalties. Under a plain reading of HRS § 386-98, the criminal
penalties set forth in subsection (d) are imposed by a court, and
not administratively. HRS § 386-98(d) states that “Lalny person
subiect toa criminal penalty under this section shall be ordered
bya-coust to make restitution to an insurer or any other person
for any financial loss sustained by the insurer or other person
caused by the fraudulent act.” (Emphases added.) Therefore, his
argunent is inapposite to this case.
"Sue Appellant's argunents
(3) Sn the court eppeal, and argument
Dy (2) (8) (2) (b}, and reply argunent
in the adninistrative sppeal-
See Ritz-Cerlton and Marriott's argument (2), and the Department! s
argunent (2) in the court appeal. We need not reach Ritz-Carlton and
Mazrictt'e argument (2) inthe acninistrative oppeal,
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Furthermore, HRS § 386-98(e) states that administrative
penalties may be imposed “[iJn lieu of the criminal penalties set
forth in subsection (d)." “In lieu of” is defined as “instead of
or in place of.” Black's Law Dictionary 803 (8th ed. 2004).
Hence, by its plain language, HRS § 386-98 provides for the
imposition of either criminal or administrative penalties against
a party found to have violated sections (a) of (b), but not |
oth. appellant, then, is incorrect in his assertion that the
criminal and administrative penalties found in HRS § 386-98 are
“inextricably woven.” On its face, HRS § 366-98 distinguishes
criminal from administrative penalties. .
Additionally, pursuant to HRS § 386-98(f), it is the
administrative proceeding that commences with the filing of a
complaint by a private party. By reference to the “director”
and the “board,” that secticn™ refers to the Department and the
LIRAB, and not to court proceedings as suggested by Appellant.
As the Department maintains, the plain language of HRS § 386-
96(d), which governs criminal penalties, does not allude in any
way to the commencement of criminal charges as a result of the
eg Department's argunent (1) (a) in the court appel.
int''s axgunent (1) (e} in the court appeal.
* gee Appel!
= RS § 386-1 (1993) defines the “director”
lebor and industriel relations.”
“the director of
HRS § 386-1 defines the “appellate boarc” as “the labor and
industriel relations eppeais boerd.”
% gee supes note 2
49
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filing of a complaint by a private party.”
Moreover, and as stated previously, Appellant was
notified that the Department did not have the power to preside
over crininal charges and would not be doing so. On January 25,
2002, the Department informed Appellant thet it “lacks
jurisdiction in criminal proceedings.” further, at the Septenber
3, 2002 hearing, as maintained supra, Appellant sought
clarification as to which penalties would be assessed, and was
assured that the Department could nét, and would not, be
assessing any criminal penalties. Accordingly, Appellant's
argunents that HRS § 386-98 unconstitutionally delegates the
state’s police power to private parties by permitting such
parties to file a complaint axe unpersuasive in this case.
xII.
Appellant also asserts that HRS § 386-98 “is
unconstitutional on its face and as applied." As to the most
substantive of his arguments,” Appellant contends that the
* See Department's argument (1) (b) in the court appeal.
% See Appellant's argunent (2) in the court appeals see also Ritz~
Ceriton ang Marriot’s argunent (1), and Special Conpensstion Fong's argument
(4) in the sdninistrative appeal
Appellant's claim that HRS § 306-98 1 unconstitutionally vague ss
without merits! Appellant was charged with “aisrepresenting of concealing @
1" HRE § 386-98 (emphasis added), ond argues thst “[a) charge of
Risrepresenting or cencesling s material fact begs the question 22 to whe
facts are ‘waterial,” snd under what circumstances.” This court has stated
that "lal penal statute is vague if a person of ordinary intelligence cannot
obtain an Sdequate cescription of the prohibited conduct or how to avoid
Committing illegal acte.*" state vy kag, 69 Haw, 463, 467, 768 Pead 372,375
(2586) (citations omitted). The term material fact” ie Gefined as “a fact
that ie significant of essential to the sesue oF matter st hend,” re Law
Dictionary "629 (Eth ed, 2004)-. Because this term is eesily cefinable and
allows 6 person of ordinary intelligence to cbtain an adequate description of
Teontinued.s-)
so
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a
statute allows for the imposition of criminal penalties, but
because it “provides no requirenent as to a burden of proof for
the imposition of administrative penalties,” the “substantial
evidence” (default burden of proof) under HRS § 386-85 would
Likely apply which is 2 “Lesser standard than [the] proof beyond
a reasonable doubt [standard] required in criminal
prosecutions.”
However, as discussed above, the fine that Appellant
was ordered to pay was an administrative penalty. See also
infra. Because Appellant was not assessed @ Yeriminal penalty,”
RS § 386-98(d) does not apply to him, and he thus lacks standing
to assert this claim. “In the absence of well recognized
exceptions, this court has clearly held ‘(clonstitutional rights
nay not be vicariously asserted.’" Exeitas v. Admin. Dir. of
Courts, 104 Hawai'i 483, 486, $2 P.36 993, 996 (2004) (quoting
Kaneohe Bay Cruises; Inc. v. Hizata, 75 Haw. 250, 256, 861 P.2d
24. -continued)
the premibited conduct, the statute is not unconstituticnally vogue. See also
Riteeéarlton and Marriott's argument (4)(d) in the court appeal
‘appellant sigo aeserts that HRS § 366-98 is overbroad. “The
doctrine of overbreadth, although closely related to a vagueness clain, is
QESETEEE Gh Ense hile a Statute may be clear and precise in its ters, it may
GeEIPES broadly that censtitutdonally protected conduct is included in its
aeeee focions.”” Statewe ful, 106 Hawai'i 462, 465, 92 P.34 471, 474 (2004)
sree Sootation neria and citations onitted). Appellant makes no argunent
{he conseStotionally protected conduct ie included within the statute's
protefiptions, hse, this argument is also without merit.
Rgpellant states that "(w)here # fundamental right is involved, @
constitutiene! standard that a statute aust survive is serutiny.*
SSeslisne feiees ne discernible argument ebout any fondenentel rights that may
DePingiicated in this case.
* Seg Appellant's argunent 2(a) in the court appea!
st
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+ 9 (1993) (citation omitted)) (footnote omitted) (brackets in
original).
Exceptions to the rule against vicarious assertion of
constitutional rights include the right to privacy and First
Amendment rights. Id, at 486 n.6, 92 P.3d at 996 n.6 (citing
State v. Kam, 69 Haw, 483, 488, 748 P.24 372, 375 (1988) (holding
that “sellers of pornographic items . . . possess the standing to
assert the privacy rights of those persons who wish to buy those
items to read or view in the privacy of the hone” because buyers
of pornography will usually never be subject to prosecution under
the statute at issue); State v, Bloss, 64 Haw. 148, 151 n.6, 637
P.2d 1117, 1121 n.€ (1981) (explaining that overbreadth doctrine
is an exception to traditional standing rules because “courts
recognized that the possible harm to society from allowing
unprotected speech to go unpunished is outweighed by the
possibility that protected speech will be muted”); State vi
Kaneakua, 61 Haw. 136, 597 P.2d $90 (1979) (clarifying that
overbreadth doctrine is inapplicable to cockfighting because no
constitutional right is involved); and State v. Manzo, 5@ Haw.
440, 445, 573 P.2d 945, 949 (1977) (explaining that overbreath
doctrine as applied to the First Amendment is an exception to
“traditional rule that a person may not challenge a statute upon
the ground that it might be applied unconstitutionally in
circumstances other than those before the court”)). Appellant's
arguments do not implicate any exception. Furthermore, assuming,
arauendo, thet the proof did not satisfy the “beyond @ reasonable
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ee
doubt” standard required in criminal cases, because Appellant was
not assessed @ “criminal penalty,” the statute is not
unconstitutional as applied to Appellant.
Next, Appellant argues that statements he made to an
independent medical examiner and before the Department were
coerced and their use in his charge constituted a violation of
the prohibition against coerced confessions. ‘There is no,
relevance to this argument because Appellant was not a party to a
criminal proceeding.
Appellant states that “the use of the medical report by
a deceased doctor was permitted, as against the right to confront
and cross-examine witnesses,” and cites to State v. Adrian, 51
Haw. 125, 453 P.2d 221 (1969). Although Appellant does not
provide any argument as to why he cites Adrian, we note that
Adrian recognizes s right to confrontation under both the U.S.
and Hawai'i Constitutions. $1 Haw, at 130-31, 453 P.2d at 225;
nee U.S. Const. amend. VI ("In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.” (Emphasis added.}); Haw. Const. Art. I,
$6 (“Inall criminal proceedings, the accused shall enjoy the
right . . . to be confronted with the witnesses against the
accused.” (Emphasis added.)). The right to confrontation only
applies in “criminal prosecutions.” U.S. Const. amend. VIy Haw.
Const. Art. I, § 6. Because Appellant was not criminally
1% Soe Appellant's argument (2) in the court oppeel, snd argument (1)
and reply ergurent’ (2) an the ecuinistretive appeal:
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SSS
prosecuted, we reject his argunent that the use of the medical
report violated his right to confrontation.
xu.
Appellant states that HRS § 386-98 is a penal statute
because “the statute, on its, face, makes clear that a [fraudulent
insurance] act was sought to be made a criminal act” inasmuch as
subsection “(d) designates classifications of criminal conduct,
and classifications of penalties.” However, as mentioned
above, Appellant was assessed adninistrative penalties under HRS
§ 386-98 (e), and was not subject to criminal penalties under HRS
§ 386-98(d). ‘Therefore, Appellant's argument pertaining to
penalties imposed pursuant to HRS § 386-98(d) is inapposite.
xIv.
Appellant also states in a heading to his points of
error in the opening brief of his administrative appeal that the
LIRAB “erred by failing to. . . compel specificity and
particulars[.]" Appellant maintains that there was a violation
of HAR § 12-10-77 “in that the complaint does not indicate the
date, the nature of the violation(s), and related documentation
as required{.]” However, Appellant has failed to provide any
discernable argument regarding this point in his opening brief.”
Accordingly, pursuant to HRAP Rule 26(b) (7), as discussed supra,
We deem his challenge pursuant to HAR § 12-10-77 waived. We note
* Sag Appellant’ s argument 1(d) in the court appeal
sdnindetrative
% sue Spectal Conpensstion Fund's ergument (1) in the
appeal,
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a
that although Appellant has provided some argument regarding fhe
specificity of charges in his reply brief,” he has waived this
issue, and it would be unfair for us to address it. See Taomae
vs Lingle, 110 Hawai'i 327, 333 n.24, 132 P.3d 1238, 1244 n.d
(2006) (denying plaintiffs’ request for attorneys’ fees on the
basis that the request was raised for the first time in their
reply nenorandum (citing In re Hawaiian Flour Mills. Ing 76
Hawai'i 1, 14 n.5, 668 P.2d 419, 432 n.5 (1994) (holding that
arguments raised for the first tine in the reply briefs on appeal
were deemed waived); HRAP Rule 28(d) (2005) (stating that “(t]he
reply brief shall be confined to matters presented in the
answering brief”))).
XV.
Appellant next states that “it is clear that [he]
received a punitive sanction since the $5,000.00 fine [imposed
pursuant to HRS § 386-98(e)] was not related to any benefits or
payments received, nor to restitution to [Ritz-Carlton or
Marriott)."" Appellant, however, failed to contest finding no.
17. To repeat, uncontested finding no. 17 describes the
administrative penalties imposed upon Appellant and states that
“(these penalties are permitted under HRS § 386-98 (e) and appear
reasonable based on the evidence.” Since Appellant has not
challenged finding no. 17, it is binding on him as well as this
See Appellant's reply argument (1) in the aduinistrative sppeal
2 seg appellant’ argunent 1(¢) in the court eppesi.
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Se
court. See Kelly v, 1250 Oceanside Partners, 111 Hawai'i 205,
227, 140 P.3d 985, 1007 (2006) (stating that “[glenerally, a
court finding that {s not challenged on appeal is binding upon
this court” (citations onitted)).™
Appellant does, however, contest conclusion no. 2,
which states that “[bJased on the foregoing, we conclude that the
administrative penalties assessed by the [Department] pursuant to
HRS § 386-98(e) for violations of HRS § 386-98(a) (8) were
appropriate." Conclusion no. 2 is based upon and flows logically
from finding no. 17. A conclusion that penalties are
“appropriate” is rationally supported by a finding which states
that the subject penalties “are permitted under HRS § 386-98(e)”
and that they “appear reasonable based on the evidence.”
Inasmuch as conclusion no. 2 is supported by uncontested finding
no, 17 and logically follows from it, we believe conclusion no. 2
is right. See Kawatiata Farms, Inc, v, United Agri Prods., 86
Hawai'i 214, 252, 948 P.2d 1085, 1093 (1997) (opining that “Lif
2 finding is not properly attacked, it is binding; and any
conclusion which follows from it and is a correct statement of
lew is valig” (internal quotation marks and citations onitted)).
Even if Appellant had properly attacked finding no. 17, though,
he fails to demonstrate that the penalties imposed upon him were
penal in nature.
m _ _hithoush denominated ae a finding of fact, finding ne. 17 appears
to involve « mixed question of law and fect.
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a
xvr.
We note preliminarily, pursuant to HRS § 386-98(e),
that “any person who violates subsections (a) and (b) may be
ect tot nists en of
benefits or payments fraudulently received . . . , and one or
nore” of the administrative penalties enumerated in HRS § 386-
98(e) (1)-(6)- (Emphases added.) Therefore, it 4s of no,
consequence whether, as Appellant contends, Appellant “was
subjected to fine, without imposition of administrative penalty
of restitution or benefits made or any proof of ‘payments
fraudulently received.'”
Furthermore, HRS § 386-88(2) does not require
correlation between a fine imposed under subsection (e), and
benefits received. HRS § 386-98 (2) includes within its
dulent insurance act” “acts or omissions
definition of 2 “fi
committed . . . so a8 to obtain benefits{.)"* (Emphasis added) .
Regarding the definition of “so as," it is stated that “so” is
soften used with a[n] . . . infinitive phrase introduced by
[*as"] that shows the logical result or purpose of an action done
in a specific manner with the following clause or phrase serving
to indicate the desired manner as well as the outcome of the
action.” Nebster's Third New Int’] Dictionary 2160 (1961); see
Singleton v, Liquor Comm'n, 111 Hawai‘i 234, 243-44, 140 P.3d
1024, 1023-24 (2006) ("where a term is not statutorily defined
See Rite-Coriton and Marriot’® argunent (5), and the Special
compensation Fund's argument 2(b) in the aduinistrative eppeal..
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SSS
+ + We may rely upon extrinsic aids to determine such intent.
are extrinsic aids which may be
Legal and lay dictionari
helpful in discerning the meaning of statutory terms.” (Internal
quotation marks, brackets, and citation omitted.)).
Therefore, in the context of HRS § 386-98(a), for a
fraudulent insurance act to occur, the “logical result or
Purpose” of “acts or omissions” must be “to obtain benefits.”
HRS § 386-98(a), then, does not require that a party actually
obtain benefits to be subject to a penalty. It only requires
that obtaining benefits was the “logical result or purpose,
Webster's Third New Int’] Dictionary at 2160 (emphasis added), of
the party's “acts or omissions,” HRS § 386-96(a). By its terms,
HRS § 386-98(a) would include an attempt to obtain benefits
inasmuch as the “outcome” of obtaining benefits was the “purpose”
of Appellant's actions.
This court has stated that “[s]tatutory construction
+ + + does not authorize the interpolation of conditions into a
statute -- additional terms -- not found in the statute
considered as 2 whole.” Hawaii Pub, Employment Relations Bd. v.
it Workers, 66 Hew. 461, 469-70, 667 P.2d 783, 789
(2983) (internal quotation marks and citation omitted). Because
the plain language of HRS § 386-98 does not require receipt of
benefits in order for a fraudulent insurance act to occur, we
decline to add such a condition to the statute.
* We need not re
in the adninisteative. opp
ch the Special Conpensaticn Fund's argunent (2) (e)
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Furthermore, we are “bound to construe statutes so as
to avoid absurd results.” Franks v, Hawaii Planning Mil) Found.
88 Hawai'i 140, 144, 963 P.2d 349, 353 (1998) (citation omitted).
To hold that an individual must have succeeded in receiving
benefits would penalize a vigilant employer or insurance carrier
that interdicted a scheme to obtain benefits through fraud or
deceit. Such a construction would also cause unnecessary cost
and delay in the prevention of fraud.
XVII.
Appellant acknowledges that a fraudulent insurance act
under HRS § 386-98(a) (8) is not denominated @ crime, Courts of
this jurisdiction, however, have recognized that “(t)he
legislature's declaration that a violation is non-criminal and
does not constitute a crime does not compel the conclusion that
the penalties for conviction of @ violation are civil rather than
criminal.” State v. Simeona, 10 Haw. App. 220, 231, 864 P.2d
1109, 1115 (1993), overruled on other grounds, State v. Ford, 84
Hawai'i 65, 929 P.2d 78 (1996). “(T]he question whether @
particular statutorily defined penalty is civil or criminal is a
matter of statutory construction.” Jd, at 229, 864 P.2d at 1114
(citing One Lot Emerald Cut Stones v, United States, 409 U.S.
232, 237 (1972); Helvering v. Mitchell, 303 U.S. 391, 399
(1938); see also United States v, Ward, 448 U.S. 242, 248
(1980)
‘The U.S. Supreme Court in Ward set forth a two-part
inguiry for determining whether a statutorily defined penalty is
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civil or criminal:
Our inquiry in this regard has traditionally proceeded on
two levels. First, We have set out to determine whether
Congress, in establishing the penalizing mechanism,
Undicsted either expressly of impliedly a preference for one
Lebel or the other. See Que ict Eeerald Cut Stones, 403
Ors. at 236-38. Second, where Congress has Indicated an
intention to establish @ civil penalty, we have inquired
further uhether the statutory scheme was so punitive either
in purpose or effect 42 to negate that intention
363 U-S- 603, E1?=21 (1960). IR regard
fo this latter inquiry, we have hoted that “only the
Clearest proof could suffice to establish the
bneonseitutionality of a statute on such a ground.” Id. at
627, "ee alae One uot Emerald Cut Stanaa{, 409 0.5. at_
250}; Rex Gratien Coy. United stares, 380 0.5. 148, 15¢
(2956).
448 U.S. at 248-49 (citations omitted).
As to the first inguiry, it is clear that the
legislature intended to impose an adninistrative penalty under
HRS § 366-98(e). Significantly, the legislature labeled the
penalties in HRS § 386-98(e) administrative, “a label that takes
on added significance given its juxtaposition with the criminal
penalties set forth in the inmediately preceding subparagraph,
(HRS § 366-98(d)]."" Ward, 448 U.S. at 249 (stating that
“[£}nitdally, and importantly, Congress labeled the sanction
authorized in [the statute) a ‘civil penalty,’ a label that takes
on added significance given its juxtaposition with the criminal
penalties set forth in the immediately preceding subparagraph”).
Therefore, “we have no doubt that [the legislature] intended to
‘allow imposition of penalties under [HRS § 386-96 (e)] without
xegard to the procedural protections and restrictions available
in criminal prosecutions.” Id, Appellant fails to cite any
authority or provide any argument that would persuade us to
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conclude otherwise, and contrary to the express intent of the
statute.”
As to the second inguiry, we “consider whether [the
legislature], despite its manifest intention to establish a
civil, remedial mechanism, nevertheless provided for sanctions so
punitive as to ‘transform what was clearly intended as a civil
remedy into a criminal penalty."" Id, (quoting Rex Trailer Cow
350 U.S. at 154 (brackets onitted)). We have applied the seven
considerations enunciated by the U.S. Supreme Court in Kennedy v.
MendozacMaxtinez, 372 U.S. 144 (1963), to determine whether,
“despite the stated non-punitive intent of the legislature, the
statute’s effects negate the state's nonpunitive intent.” State
ve Guidry, 105 Hawai'i 222, 235, 96 P.3d 242, 255 (2004). “this
List of considerations, while certainly neither exhaustive nor
dispositive, has proved helpful in [the] consideration of similar
questions, and provides sone guidance in the present case.”
Ward, 448 U.S. at 249 (internal citation omitted); see also
Guidry, 105 Hawai'i at 235-36, 96 P.3d at 255-56.
The seven factors are as follows: (1) “{wjhether the
sanction involves an affirmative disability or restraint”;
(2) “whether it has historically been regarded as @ punishment”;
(3) “whether it comes into play only on a finding of scienter";
(4) “whether its operation will promote the traditional aims of
punishment-retribution and deterrence”; (5) “whether the behavior
gee Rite-Coriton and Marriott's argument (4) (b) in the court
eppesl
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to which it applies is already a crime”; (6) “whether an
alternative purpose to which it may rationally be connected is
assignable for it"; and (7) “whether it appears excessive in
relation to the alternative purpose assigned(.]” Mendoza-
Martinez, 372 U.S. at 168-69. “(T]hese factors must be
considered in relation to the statute on its face." Id. at 169.
“it is important to note that not all factors must be satisfied
in determining whether a statute has punitive effects." Guidry,
105 Hawai'i at 236, 96 P.3d at 286 (citing Russell v. Gregoire,
124 F.3d 1079, 1086 (Sth Cir. 1997) (explaining that even though
“the statute imposes an affirmative restraint and imposes a
sanction traditionally regarded as punishment[, this] does not
override its nonpunitive nature”); Smith v. Doe, 538 U.S. 84, 97
(2003) (stating that Mendoza-Martinez factors are “neither
exhaustive nor dispositive” and are “useful guideposts”}).
With respect to the first factor, none of the
administrative penalties under HRS 366-98(e) impose any
disability or restraint and, therefore, do not approach “the
‘infemous punishment’ of imprisonment.” Hudson v. United States,
522 U.S. 93, 104 (1997) (quoting Flemming, 363 U.S. at 617)
(internal quotation marks omitted) .
As to the second factor, as stated above, Appellant
challenges that the $5,000.00 fine he vas assessed amounts to a
punitive sanction. However, money penalties have not
historically been regarded as punishment. Hudson, 522 U.S. at
104 (stating that “neither money penalties nor debarment has
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historically been viewed as punishment”). Furthermore, “the |
payment of fixed or variable sums of money [is a] sanction which
ha{s] been recognized as enforcible by civil proceedings since
the original revenue law of 1789." Id. (quoting Helvering v.
Mitchel], 303 U.S. 391, 400 (1938) (internal quotation marks
omitted) (brackets in original). .
As to the third factor, a fraudulent insurance act
under HRS § 386-96(a) requires scienter, namely that an
individual act “intentionally or knowingly.” Accordingly, this
factor implicates an attribute of criminal punishment.
As to the fourth factor, we recognize that the
imposition of administrative penalties under HRS § 386-98(e) will
“deter others from emulating [Appellant's] conduct, a traditional
goal of criminal punishment.” Hudson, 522 U.S. at 105, However,
“the mere presence of this purpose is insufficient to render a
sanction criminal, as deterrence ‘may serve civil as well as
criminal goals.’” Id, (quoting U.S. v. Usery, 516 U.S. 267, 292
(1996) (citation omitted)). The legislative history of HRS $
386-98 indicates that fraud penalties were necessary to “insure
"conf. Comm.
the integrity of our workers’ compensation syst
Rep. No. 64, in 1985 Senate Journal, at 898. To hold that the
presence of a deterrent purpose renders such administrative
of the
penalties “criminal” would severely undermine the purpos!
workers’ compensation system. See Bocalbos v. Kapiolani Med,
Gir. for Nomen & Children, 69 Hawai'i 436, 442, 974 P.2d 1026,
1032 (1999) (stating that “[o]ne of the primary purposes of the
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Hawai'i workers’ compensation law is the prompt determination and
Gisposition of claims for compensation” (citing Iddings v. Mee
Lee, 82 Hawai'i 1, 8, 919 P.24 263, 270 (1996))).
As to the fifth factor, criminal penalties may be
imposed in lieu of adninistrative penalties for a fraudulent
insurance act under HRS § 386-98. See HRS § 386-98(e). However,
the U.S. Supreme Court has “noted on a number of occasions that
‘Congress may impose both a criminal and a civil sanction in
respect to the sane act or omission.’” Ward, 448 U.S. at 250
(quoting Helvering, 303 U.S. at 399; citing One Lot Enerald cut
‘Stones, 409 U.S. at 235). ‘The Court has “found significant the
separation of civil and criminal penalties within the sane
statute,” as in this case. id; see also Helvering, 303 U.S. at
404; One Lot Emerald Cut Stones, 409 U.S. at 236-37, Therefore,
this factor cannot be said to weigh in favor of Appellant's
argunent.
As to the sixth factor, as noted above, “to insure the
integrity of the workers’ compensation system,” the legislature
strengthened the prohibition against fraud within the system.
Conf. Conm. Rep. No. 64, in 1985 Senate Journal, at 698.
Therefore, it is apparent that there is an alternative purpose to
which the adninistrative penalties under HRS § 386-96(e) are
rationally connected.
As to the seventh factor, HRS § 386-98 (e) (1) Limits
Hines to “not more than $10,000 for each vielation” and,
accordingly, affords discretion in their imposition. Based on
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that may be imposed under
this, it cannot be said that the fine
HRS § 386-98 (e) (1) would be excessive especially in light of the
legislatures objective of preserving the integrity of the
workers’ compensation system. See Flor v, Holauin, 94 Hawai"
70,.79, 9 P.3d 382, 391 (2000) (stating that the remedial purpose
of the system is to “provide compensation for an employee for all
work-connected injuries, regardless of questions of negligence
and proxinate cause” (internal quotation marks and citations
omitted)).
Six of the seven factors appear to weigh against
concluding that the sanction of a fine under HRS § 386-98 is
punitive. It cannot be said that Appellant has provided the
“clearest proof” that administrative penalties imposed pursuant
to HRS § 386-98(e) are criminal and punitive, despite the
legislature's expressed intent to the contrary. Therefore, we
reject Appellant's contention.”
XVIII.
Appellant argues that HRS § 386-98 is unconstitutional
inasmuch as the Department has “unbridled discretion to impose
% —tnasmuch a we conclude that HRS § 366-96 is not a penal statute,
kes intza, we need not reach Appellant's cub-argunents that “if the penalti
Ste deened Crininsi, the right to 2 jury trial is deened triggered"; that
fraudolent
jury tried:
With reasonable clarity the ect proscribed a
Judging guilt, of that the statute will be
in conjunction with Appellant's argunent 1(@) in the court eppeal
‘ach Appellant's reply argument 3a) in the
6s
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penalties without appropriate guidelines.” In support of this
assertion, Appellant appears to contend that he was denied due
process inasmuch as penalties were assessed even though he did
not receive any benefits to which he was not entitled. “the
basic elements of procedural due process of law require notice
and an opportunity to be heard at @ meaningful tine and in a
meaningful manner before governmental deprivation of a
significant property interest." Sandy Beach Def. Fund. v, city
Council, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989) (citations
omitted). We have already rejected Appellant's assertion that he
was required to actually receive benefits in order to fall within
the penalty provisions of HRS § 386-98. Further, inaemuch as
Appellant took part in hearings before the Department and the
LIRAB, and insofar as pertinent to this argument he engaged in
court proceedings and filed several motions before the court
during the pendency'of this case, we conclude that Appellant was
not denied due process of law.
xIK.
Appellant also maintains that the police power of the
State of Hawai'i cannot criminalize or penalize conduct protected
under the First Amendment to the U.S. Constitution, namely free
speech, by statements he made at a hearing conducted by the
Department, primarily in response to questions by Ritz-Carlton
and Marriott's attorneys. According to Appellant “[i]f alleged
Set Appellant's argument (2) (b) in the court appesl
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a
smisrepresentation[s]’ based on self-advocacy are permitted, no
person can be free to make statements at (Department) hearings
under threat of criminal or administrative penalty,” and “an
enployer could easily ‘set-up’ such charges by questioning a pro
ge Claimant, to elicit inculpatory statements." Appellant
fails to cite to any case law or statute that would support his
contention that the First Amendment provides protection to a
party that makes misrepresentations to a court or administrative
agency under the mantle of “self-advocacy." Therefore, we
conclude that @ “nisrepresentation” before the Department is not
constitutionally protected by the First Amendment.“
Appellant also contends that “a person always has the
right to testify in his own defense,” and cites to the Fifth
Amendment to the U.S. Constitution, The Fifth Amendment states
that “Injo person . . . shall be compelled in any Criminal Case
to be a witness against himself{.]” (Emphasis added.) Because
Appellant does not provide any argument, it is unclear how the
Fifth Amendment supports Appellant’ s contention, especially
because Appellant has not been charged criminally, and has not
alleged that he was deprived of the right to testify. Therefore,
we reject Appellant’s assertion pertaining to the Fifth
Amendment.
“seg Appellant’s argument (1) (6) in the court appeal
+ gee Ritz-Carlton and Mareiott’s argument (3) in the adninistrative
appee
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xx.
Appellant next asserts that Ritz-Carlton and Marriott
failed to prove the elements of civil fraud" under Hawai‘ law.®
As stated by Ritz-Carlton and Merrictt and the Special
Compensation Fund,‘ however, the instant case does not involve
civil fraud as defined by Hawai'i law. Appellant, nevertheless,
asserts that the language of HRS § 386-98(a) (8) incorporates the
elements of civil fraud. However, as indicated infra, HRS § 386-
98 (a) (8) does not require reliance or detrimental reliance by any
party, as Appellant contends, for a violation of its terms to
occur.
O eg, APPEllant, cites what appears to be Shoome vs Guccl An, Inc, 94
Hawas's 368, 386, 14.34 1049, 1067 (2000), (noting that “thie cours hes
long recogtized ‘that = party claining fraud must ectablish the following
elenents: (1) false representations were made by defendants, (2) wich
knowledge of their falsity (or without knowledge of their truth or falsity),
(G) in contenplation of plaintiff's reliance upen these falte representations,
and (4) plaintife aid rely upon then". (citations omitted) 17, dau e
union v. Keka, $4 Hawai'i 213, 230, 11 P-3d 1, 16 (2000) {stating thet
Nitjo constitute fraudulent inducement evtficient to invalidate the terms of &
contract, thee most be 1) 2 representation of netersel fact, (2) made for
the purpose of inducing the other party £0 act, (3) known to be’ fall
reasonably believed true by the other party, and (4) upon whieh th
party relies and acts to (his or her) Gamage” (citations omitted) )y and
Mads, 101 F. Supp. 24 1515 (D. Hew. 1999) (atating thee “ander:
Hawaii Tews [tihe elenents of frauc include: (2) false representations mad
by the defendants (2) with knowledge of their falsity (or without knowledge of
their truth or falsity): (3) in contemplation of plaintiff's reliance upos
them: and (4) plaintiff's detrimental relience” (citation omitted) ]*
© Sgt Appellant’ s arguments (2), (2) (a), (2)(€)+ (24d), (2) (ely and
(2) in the adtinistrative appeal
Sige Ritz-Carlton and Marriott’ argument (4), and the Spectel
Compensation Fund’ s argument (2) (a) in the administrative appeal, Ritz
Cariton and Marriott also asserted in argunent (3) in the court appeel that
the instant case does not involve ceanon law or criminal travd.
Me decline to address Appellant's reply argunent 3(b) in the
adninistrative appeal insemueh as it wae raised for the first time in his
reply brief. Sea Jaonse, 110 Hawaii at 333 m-l4, 132 Pood at 124¢ molds gee
alse supra fort x1V.
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XXI.
Regarding the issue of the appropriate standard of
proof in the administrative hearing, Appellant asserts that Ritz-
carlton and Marriott were required to prove that he violated HRS
§ 386-98 by clear and convincing evidence.“ In response, Ritz-
Carlton and Marriott argue that “[s]ince HRS § 386-98 does not
specify another evidentiary standard, the preponderance of the
evidence standard applies” pursuant to HRS § 91-10(5) (Supp.
2005) .
HRS § 386-98 is silent as to the standard of proof
required. At the administrative hearing, the LIRAB rejected
Appellant's contention that the “clear and convincing evidence”
or “proof beyond a reasonable doubt” standards applied, and
determined that “[pJursuant to HRS § 91-10(5), . . . . the
correct standard of proof in a contested case hearing under [HRS
chapter 386] is preponderance of the evidence, unless the law
provides otherwise.” Applying the preponderance of the evidence
standard, the LIRAB concluded that Ritz-Carlton and Marriott “met
its burden of proof to show by a preponderance of the evidence
that [Appellant] violated HRS § 366-98(a)(8).” For the reasons
stated herein, we conclude that a violation of HRS § 386-98 must
be proved by clear and convincing evidence.
“appellant addresses the issue of burden of proof in his reply
gunent (2) in the court appeal, in his argument (2) (b) and in hie reply
argunent (4) in the administrative eppesl. Je i= addressed by Ritz-Carlton
and Marriott in argunent_ (4) (c] in the court appeal, and argument (6) in the
Sdninistrative appeal, This issue is addressed by the Special Cempensation
Ford in ergument (3) in the administrative appeal
6
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xxrt.
HRS § 91-10(5) of the Hawai'i Administrative Procedures
Act (HAPA) states that in contested cases, “Lelucept as otherwise
provided by law, the party initiating the proceeding shall have
the burden of proof, including the burden of producing evidence
as well as the burden of persuasion. The degree or quantum of
proof shall be preponderance of the evidence.” (Emphasis
added.)
‘The legislative history of HRS § 91-10 indicates that
in 1978, the legislature anended HAPA to provide that in
contested case hearings, “the party initiating the proceeding
shall have the burden of proof, including the burden of producing
evidence as well as the burden of persuasion.” Stand. Comm. Rep.
No. 682-78, in 1978 Senate Journal, at 1068. The legislature
further specified that “the degree of quantum of proof shall be a
preponderance of the evidence.” Id. However, the legislature
also added that this standard shall be applied only “le]xcept as
otherwise provided by law{.)” Id.
Prior to this amendment to HAPA, “in contested c
proceedings before the various State regulatory boards,
connissions, and agencies, it (was) not clear who ha[d) the
burden of proof and what the quantum of proof [was] required to
carry the burden.” Id. HAPA had no provision comparable to the
Federal Administrative Procedures Act which specified that “the
proponent of a rule or order has the burden of proof.” stand.
comm. Rep. No. 288-78, in 1978 House Journal, st 1817. “AS a
70
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i
result, the various bodies . . . adopted requirements that [were]
not uniform.” Stand. Comm. Rep. No. 682-78, in 1978 Senate
Journal, at 1068.
‘The legislature noted that “[d]ue to the absence of
such a provision it ha[d] been suggested in licensing cases that
the quantum of proof required is clear and convincing evidence, a
higher standard than by a preponderance.” Stand. Comm. Rep. No.
288-78, in 1978 House Journal, at 1517. Notably, the legislature
specified that “(t]he bill would addpt the common law standard es
established for other civil actions.” Stand. Comm. Rep. No. 268-
78, in 1978 House Journal, at 1517 (emphases added).
XXIII.
Under Hawai'i law, “clear and convincing” evidence is
“defined as an intermediate standard of proof oreater than a
preponderance of the evidence, but less than proof beyond a
reasonable doubt required in criminal cases.” Masaki v, Gen.
Motors Corp., 71 Haw. 1, 15, 780 P.2d 566, 574-75 (1989) (citing
Welton v. Gallagher, 2 Haw. App. 242, 245-46, 630 P.2d 1077, 1082
(1981); Bud Wolf Chevrolet, Inc, v, Robertson, 519 N.E.2d 135,
138 (Ind. 1998); E, Cleary, McCormick on Evidence, § 340, at 959-
60 (3d ed. 1984))? see alge Covle v, Compton, 85 Hawai'i 197, 940
P.24 404 (App. 1997). This standard requires “that degree of
proof which will preduce in the mind of the trier of fact a firm
belief or conviction ag to the allegations sought to be
established, and requires the existence of a fact be highly
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‘*APOR PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTE
probable.” Masaki, 71 Haw. at 15, 780 P.2d at 574-75 (citations
omitted) .
‘The “clear and convincing” standard “has been applied
to a wide variety of civil cases where for policy reasons the
courts require @ higher than ordinary degree of certitude before
making factual findings.” Id. at 15, 780 P.2d at 574 (quoting
Addington v. Texas, 441 U.S. 418, 424 (1979). This standard “is
typically used in civil cases involving allegations of fraud or
some other quasi-criminal wrongdoing by the defendant.” Id.
(quoting Addington, 441 U.S. at 424). In such cases, “the
interests at stake . . . are dened to be more substantial than
mere loss of money and sone jurisdictions accordingly reduce the
Fisk to the defendant of having his reputation tarnished
erroneously by increasing the plaintiff's burden of proof. Ida
(quoting Addington, 441 U.S, at 424).
“in keeping with these principles, Hawaii's appellate
courts have implemented the clear and convincing standard of
." Iddings, 62 Hawai'i at 14, 919
proof in a myriad of situation
P.2d at 276 (citing Carr v. Strode, 79 Hawai'i 475, 904 P.2d 499
State vw.
Miller, 79 Hawai" 194, 900 P.2d 770 (1995) (proof to establish
(1995) (proof to overcome presumption of paternity):
that criminal defendant is not a flight risk or danger to the
community); State vs Lopez, 78 Hawai'i 433, 896 P.24 889 (1995)
Galleon vy. Mivaai, 76 Hawai‘ 310,
876 P24 1278 (1994) (punitive damages); Maria v. Freitas, 73
Haw. 266, €32 P.2d 259 (1992) (constructive trust); Office of
(inevitable discovery rule)
R
'§ WWAT'E REPORTS AND PACIFIC REPORTER!
539, 777 P.24 720 (1989)
Disciplinary Council v. Rapp, 70 Hav.
(professional misconduct); Mehau v. Gannett Bac. Comp., 66 Haw.
133, 658 P.2d 312 (1983) (defamation); Hoodruff v. Keale, 64 Haw.
85, 637 F.2d 760 (1961) (termination of parental rights);
Boteilho v. Boteilho, $8 Haw. 40, S64 P.2d 144 (1977) (oral
contract for sale of real estate); Cresencia v. Kim, 10 Haw. App.
461, 878 P.2d 725 (1994) (fraud); Chan v. Chan, 7 Haw. App. 122,
748 P.2d 807 (1987) (civil contempt); Tar v. City and
of Honolulu, 2 Haw. App. 102, 626 P.2d 1175 (1981) (proof that
government official acted with malice)).
In Kekona v, Abastillas, this court held that the
Intermediate Court of Appeals gravely erred when it determined
that @ fraudulent transfer may be proved by a preponderance of
the evidence. No. 24051, 2006 WL 3020312, at *8 (Haw. Sept: 26,
2006). In reaching this holding, this court stated:
believe thet the higher protections afforded by the
far and convincing” standard of proof were necessary
ge a finding of liability for a fraudulent transfer
preduces the reputational harp that should not be inflicte
Ebcent the Sdegree of proof which will produce in the ming
Of the trier of fact a firm belief or conviction a6 to the
Sliegations sought to be established(.)”— (Masaki, 71 Ha
Gt ib, 780 Pe2d at 504-75 (citations omitted)]. Indesd the
sie notes di e
the with a s
‘suiminality.
Ids at *7 (emphases added).
Likewise, in this case, we conclude that “the higher
protections afforded by the ‘clear and convincing’ standard of
much ag a finding of liability for a
proof were necessary in
fraudulent [insurance act) produces the reputational harm that
should not be inflicted absent the ‘degree of proof which will
13
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produce in the mind of the trier of fact a firm belief or
conviction as to the allegations sought to be established(.]/"
‘Id. (quoting Masaki, 71 Haw. at 15, 780 P.2d at 574-75 (citations
omitted). Indeed, being held liable for fraudulent insurance
act for intentionally or knowingly acting so as to obtain workers
compensation benefits through fraud or deceit in violation of HRS
§ 386-98 “connotes dishonesty and effectively brands the liable
defendant with an imprimatur of quasi-criminality.” Id. We
hold, then, that a violation of BRS'§ 386-98, 2 fraudulent
insurance act, must be proved by clear and convincing evidence.
Accordingly, the LIRAB erred in applying the preponderance of the
evidence standard of proof under HRS § 91-10(5).
XXIV.
Ritz-Carlton and Marriott argue that a fraudulent
insurance act as defined by HRS § 386-98(a) (8) does not involve
common law fraud. With respect to fraud, this court has held
that “[t]he evidence must be clear and convincing to support a
finding of fraud.” Hawaii's Thousand Friends v, Anderson, 70
Haw. 276, 286, 768 P.2d 1293, 1301 (1989) (citation omitted). It
should be noted also that “this court has repeatedly required
proof by ‘clear and convincing evidence’ with respect to other
fraud-related claims.” Kekona, 2006 WL 3020312, at *8 (citing
Schefke v, Reliable Collection Agency, Ltd, 96 Hawai'i 408, 431,
32 P.3d 52, 75 (2001) (“fraud on the court under Rule 60(b) must
be established by clear and convincing evidence” (citation
omitted) ); Shoppe v. Guces Am., Inc., 94 Hawai'i 368, 386, 14
“
‘s++POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER'
P.3d 1049, 1067 (2000) (stating that a party alleging fraudulent
misrepresentation must establish its elements by “clear and”
convincing evidence”); Kana v. Harrington, 59 Haw. 652, 656-57,
587 P.2d 285, 289 (1978) (“In dealing with written contracts, the
standard of proof with respect to a showing of fraud is extremely
high. A written contract will be cancelled because of fraud only
in a ‘clear case and upon strong and convincing evidence.'*
(citation omitted.))). “This court has long recognized that a
party claiming fraud must establish the following elenents: (1)
false representations were made by defendant, (2) with knowledge
of their falsity (or without knowledge of their truth or
falsity), (3) in contenplation of plaintiff's reliance upon these
false representations, and (4) plaintiff did rely upon them.”
Shoppe, 94 Hawai'i at 386, 14 P.3d at 1067 (citations omitted);
see also Hawaii's Thousand Friends, 70 Haw. at 286, 769 P.2d at
1301.
Ae stated previously, under the plain language of HRS §
386-98 (a) (8) entitled “Eraud violations and penalties,” a
fraudulent insurance act includes (1) “acts or omissions
committed by any person[,]” (2) “who intentionally or knowingly
acts or omits to act[,]” (3) “so as to obtain benefits . . .
through fraud or deceit by” (4) “{m]isrepresenting or concealing
a material fact”:
A fraudulent ineurance act, under this chapter, shall
include acte or omissions committed by any peracn whe
Aptenticnally of knowingly acts oronite to act sos te
Sbtain-benetite Troueh fraud or deceit by doing the
Fetiowing
8
‘+#POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER**#
ee
ej Miirepresenting or concealing # material factl.1
(Emphases added.)
Unlike common law fraud, HRS § 386-98(a) (8) does not on
its face require reliance or detrimental reliance by any party
for a violation of its terms.to occur. Rather, as discussed
previously, HRS § 386-98 includes within its definition of a
“fraudulent insurance act” “acts or omissions committed . . . so
as_to obtain benefits[,]” and does not require that an actual
benefit be obtained from any party.’ (Emphasis added.)
Therefore, HRS § 386-98 (a) (8) does not demand that either
reliance or detrimental reliance by another party be proven.
Nevertheless, this distinction does not dissuade us
from concluding that the “clear and convincing” standard must
apply in light of the interests at stake and the risk of
reputational harm to a defending party. See Masaki, 71 Haw. at
15, 780 P.2d at 574°(quoting Addington, 441 U.S. at 424); gee
also Kekona, 2006 Wi 3020312, at *7. As mentioned above, the
title of HRS § 386-98 reads “Exaud violations and penalties.”
(Emphasis added.) We have stated that “{w]here a statute is
ambiguous, its title may be referred to as an aid in construing
Honolulu Star Bulletin, Ltd. vs Burns, 50 Haw.
603, 606, 446 P.2d 171, 173 (2968) (citing Strathearn $.8, Co. v,
Dillon, 252 U.S. 348 (1920); Maguire v, Comm'r of Interna.
Revenue, 313 U.S. 1, 61 (1941)). Furthermore, a “fraudulent
the statute.
insurance act” under HRS § 386-98(a) includes “acts or omissions
16
ssefOR PUBLICATION IN WEST'S IDNAL'T REPORTS AND PACIFIC REPORTER
a
to obtain benefite . . / through fraud or deceit” by
doing any of acts enumerated in the statute.
‘The Hawai's legislature did not define the terms
sfraud” or “deceit” as used in HRS § 386-98 in HRS chapter 386.
therefore, these terms should be given their plain meaning. See
Singleton, 121 Hawai'i at 244, 140 P.3d at 1024 (stating that
because there was “no indication in the statute that the term
owner of record should be given a special interpretation other
than its common and general meaning . . . , under @ plain and
unambiguous reading of HRS § 261-89, real estate owned by the
government [fell] within the statute”). Where instructions $iven
to a jury did not include the legel definitions of “defraud” or
sdeceit,” this court has presuned that the jury applied the
cconnonly understood meaning of those terms, Roxas v. Marcos, 89
hawas"i 91, 148, 969 P.2d 1209, 1266 (1998) (citing ARS § 1-24
(3993) (the words of @ law are generally to be understood in
their most known and usual significetion(.1"))
Giving fraud its ordinary meaning, fraud is defined as
van instance or an act of trickery or deceit esplecially) when
involving micrepresentstion(.)” iebster's 7 wy Int!
Dictionary at 904. Additionally, the ordinary meaning of
sdeceit” is “the act or practice of deceiving (as by
falsification, concealment, or cheating) (.}” Idk at 564.
clearly, being held Liable under HRS § 386-98 (a) (8) for acting
veo a8 to obtain benefits” through “fraud or deceit” by
vnisrepresenting oF concealing a material fact” poses the sane
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harm to an individual's reputation as under conmon law fraud,
despite the absence of the reliance elenent. See Masaki, 71 Haw.
at 15, 780 P.2d at $74 (quoting Addington, 441 U.S. at 424); see
also Kekona, 2006 WL 3020312, at *7.
Ritz-Carlton and Marriott argue, however, that “[o]ther
Jurisdictions have determined that the burden of proof for
workers’ compensation fraud statutes is the preponderance of the
evidence based on the failure of the statutes to identify any
other specific standard,” and cite to Siostrand v. North Dakota
Workers Compensation Bureau, 649 N.W.2d 537 (N.D. 2002), and
Denuptiis v. Unocal Corp., 63 P.3d 272 (Alaska 2003), to support
ite contention. Because these cases do not comport with the law
and policies of this jurisdiction as to burdens of proof, they
are distinguishable.
In Denuptiis, the Suprene Court of Alaska considered
“whether the [state], Workers’ Compensation Board | (board)) erred
in applying a clear and convincing standard of proof to an
employer's claim for reimbursement of benefits based on fraud”
when the state workers’ compensation fraud statute was silent on
the standard of proof. 63 P.3d at 275. A subsection of the
state’s Administrative Procedure Act “call{ed) for a default
standard of proof by a preponderance of the evidence in cases
where ancther standard of proof is not set by applicable law[.]”
Id, at 277-78 (citation omitted). The court reasoned that
“[blased on the board's delegated rulemaking authority, the board
could adopt a rule that the standard of proof in reimbursement
1
seepon PUBLICATION 1M WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER**#
proceedings should be by clear and convincing evidencel,]” Put
because the board had not adopted such a rule, the default
standard of proof governed. Id, at 278. Therefore, the court
sconclude{d] that the board's application of the clear and
convincing standard . . . was not @ reasonable interpretation of
governing law." Ida
nowever, the court specified that “[a]ssuning that
applicable law! might xeasonably include a well-established
decision law principle as to the applicable standard of proof,
‘de at 278 n.24 (emphasis added). The court stated, “Zo the
ofthe evidence.” Id. at 278 n.14 (emphasis added) (citations
omitted). Conversely, as discussed supra, the case law of this
jurisdiction clearly requires that fraud cleims be proven by
clear and convincing evidence. Therefore, Denuntiis is
inapposite to this case.
similarly, in Siostrand, the Supreme Court of North
Dakota considered whether the Workers Compensation Bureau
(bureau) erred in using @ preponderence of the evidence standard
under the state's workers compensation fraud statute, rather than
a clear and convincing standard, when the state worke:
compensation fraud statute was silent on the burden of proof,
G49 N.W.2d at §47-49, North Dakota law also provided for a
defauit general standard of proof by a preponderance of the
9
FOR PUBLICATION I WEST'S HAWAL'T REPORTS AND PACIFIC REPORTER®**
evidence. Id, at 547-48. The court noted that under North
Dakota law, in proving fraud, “the presumption, if any, is in
favor of innocence and the burden falls on him [or her] who
asserts fraud to establish it by proving every material elenent
constituting such fraud by a prevonderance of the evidence.” id.
at S48 (internal quotation marks and citation omitted) (emphasis
in original). Although the court recognized that it could
arguably supply an evidentiary burden of proof to the state fraud
statute because none was specified, it declined to do so, and
affirmed the bureau’s application of the preponderance of the
evidence standard. Id, at 549,
We observe that where there is no fraud statute in the
workers’ compensation scheme, courts have imposed a burden of
elear and convincing proof. In Namislo v, Azko, the Supreme
Court of Alabama stated that because “intentional tortious
conduct (isea, intentional fraud) committed beyond the bounds of
the enployer’s proper role is actionable, we deem it appropriate
to address the standard of proof to be applied in determining
whether a claim is due to be presented to a jury.” 671 so. 2d
1380, 1368 (Ala. 1995). The court, quoting from a previous
cision, stated that:
In order to ensure against borderline or frivolous claim
believe that @ plaintiff, in order to go te the Jury on &
glaim, must make «stronger showing than that required by the
“substantial evidence rule” as it applies to the esteblichment of
dary issues in regard to tort claine generally. Therefore we hold
Ehat in regard to'a fraud claim against an employers a fellow
eaployee, or an enployer’s insurer, in order to present s clein to
the jury, the plaintiff must present evidence thets if accepted
and believed by the jury, would qualify © cles 3
pusot of fraud.
80
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Sa
Id, at 1386-89 (internal quotation marks and citations omitted)
(emphasis added); see also Hobbs v. Alabama Power Co,, 775 So. 24
783, 787 (Ala. 2000) (holding “that in regard to a fraud claim
against an employer, a fellow employee, or an employer's insurer,
in order to present a claim to the jury, the plaintiff must
present evidence that, if accepted and believed by the jury,
would qualify as clear and convincing” (internal quotation marks
and citations omitted)); Kilbarger v. Anchor Hocking Glass Co.,
669 N.B.2d 08, 511 (Ohio Ct. App. 1995) (holding appellant was
not barred by collateral estoppel or res judicata because of a
jury verdict that appellant was not eligible to participate in
workers’ compensation because “(alt the first trial, appellant
was required to prove by # preponderance of the evidence that he
was injured” and in this case, “it will be appeliee’s burden of
ovina fraud b " ” (emphasis
added)), Similarly, in Light of the case law of this
jurisdiction and policy considerations discussed above, we
conclude that a fraudulent insurance act under HRS § 386-98 must
be proven by clear and convincing evidence.
xxv.
Appellant argues that the statements he made to Dr.
qoeller at the IMB “are protected by physician-patient privilege”
and “are in the nature of protected conduct recognized by lav."
however, statements made to @ physician during an IME are not
subject to the physician-patient privilege inasmuch as the
purpose of the IME is not to provide medical treatment to the
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patient but, rather, is conducted in the context of litigation.
See VanSickle v. MeHiuch, 430 N.W.2d 799, 801 (Mich. Ct. App.
1988) (holding that “the physician-patient privilege is
inapplicable when the medical examination or consultation is not
conducted for the purpose of rendering medical advice or care to
the person asserting the privilege”); Osborn v, Fabatz, 306+
N.W.2d 319, 322 (Mich. Ct. App. 1961) (stating that “[a]‘
communication between a person and a physician which is for the
purpose of a lawsuit, and not for treatment or advice as to
treatment, is not protected by the physician-patient privilege”
(citation omitted)). Additionally, Appellant does not argue that
he asserted a physician-patient privilege regarding statements
made during the IME and the record does not reflect that he did.
Appellant also fails to provide any discernible argument as to
how statements made to medical personnel “are in the nature of
Protected conduct recognized by law.” Accordingly, Appellant's
argument is without merit.
xxVI.
Appellant maintains that Dr. Toeller did not
appropriately use the AMA G th att erm
Ampaizment (Sth ed. 2001) (the Guides) and that the LIRAB should
have taken judicial notice of the Guides.‘ In support of this
contention, Appellant states that *
ince Mizoguchi and [Dr.
Egami} disclaimed being misled, [Ritz-Carlton and Marriott] had
‘This discussion relates to Appeliant’s arguments (3) and (4), and
response argument’ (7) made by Aits-carlton and Marriott in the adninistratioc
appeal
82
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ee
only [Dr. Toeller’s] report to rely on. That report should have
been evaluated with a critical eye since it purported to be proof
of fraud.” Appellant relies on a passage from the Guides which
states that “[i)t is not appropriate to question the individual’ s
integrity. If information from the individual is inconsistent
with what ds known about the medical condition, circumstances, or
written records, the physician should report and comment’ on the
inconsistencies.” Appellant also maintains that Dr. Toeller
conducted “an incomplete physical examination” because he “relied
on three tests only to reach his conclusions.”
We are not persuaded that Dr. Toeller’s reports
inappropriately questioned Appellant’s integrity or “purported to
be proof of fraud." Although Appellant does not specify which of
br. Toeller’s reports he is referring to or which parts thereof
he is relying on, we presume he is citing the part in which Dr.
‘Toeller concluded that Appellant had given a “purposely
factitious” exam in the May 9, 2001 IME report. Taken in the
context of his report, it would appear that Dr. Toeller was
commenting on the inconsistencies he observed while examining
Appellant. Dr. Toeller noted several inconsistencies between
Appellant's subjective complaints and physical reactions
throughout his May 9, 2001 report. Then, as noted previously, in
Light of those inconsistencies, he stated that “[t]he only
objective abnormalities on today’s examination were findings of a
purposely factitious examination.” His report of May 10, 2001
confirmed this finding. Taken in the context of the entire IME,
83
‘*9RoR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REPORTERS##
we believe that this statement was @ permissible “comment on the
inconsistencies” that Dr. Toeller observed throughout the IME.
Nowhere in his reports does Dr. Toeller directly comment on
Appellant's “integrity,” nor does he assert that his reports are
proof of fraud. As such, Appellant’s argument is unpersuasive.
Appellant provides no argument as to why the LIRAB
should have taken judicial notice of the Guides, nor does he
assert that he requested that they do so. Appellant also
provides no discernible argunent in support of his position that
Dr. Toeller conducted “an incomplete physical examination.”
Accordingly, we disagree with his arguments.
xxvIT.
In the administrative appeal, Appellant contests
finding nos. 5, 6, 7, 8, 9 11, 13, 14, 15, and 16 in his points
of error on appeal. HRAP Rule 28(b) (4) requires that each point
of error “shall state (1) the alleged error conmitted by the
+ +s agencys (4) where in the record the alleged error
occurred; and (ii) where in the record the alleged error was
objected to or the manner in which the alleged error was brought
to the attention of the . . . agency.” HRAP 26 (b) (4) (c)
specifies further that “when the point involves a finding or
conclusion of the court or agency, a quotation of the finding or
conclusion urged as error” shall be included. Appellant has
properly set forth his points of error.
However, pursuant to HRAP 28(b) (7), the argument in the
opening brief must contain “the contentions of the appellant on
84
sesroR PUBLICATION IN WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER!
the points presented and the reasons therefor, with citations to
the authorities, statutes and parts of the record relied on . «
points not argued may be deemed waived.” Appellant has failed to
provide any argument whatsoever and has not cited any
authorities, statutes or parts of the record to support his
challenge to the agency’s findings of fact and conclusions of
law, in violation of HRAP 28(b) (7). Accordingly, we deem,
Appellant's challenge to finding nos. 5, 6 » 7, 8, % 21, 13, 14
15, and 16 waived.
XXVIII.
pecouse ve renand for @ rehearing based on the burden
of clear and convincing evidence, we do not reach the arguments
of the parties as to credibility and the weight of the evidence
adduced at the administrative hearings.“
XIX.
Based on the foregoing, we affirm the court’s
ganuary 27, 2004 judgment. We vacate the LIRAB’s October 7, 2004
decision and order, and renand this case to the LIRAB for a
rehearing in accordance with this opinion.
on the brief:
Pescin Cb remlery ae t-
Herbert R. Takahashi,
Stanford #. Masui,
Danny J. Vasconcellos, and
Rebecca L. Covert (Takahashi,
Masui, Vasconcellos & Covert) Jane ¢. D6)
for Claiment-Appellant
Sione Tauese.
2) (e), (2) {e+ and (5) in the
“© Sos appellant's arguments (21 (0
ion Fund" e argument (2) (d)
adnin{stratsve appeal: See alga Special Comper
[nthe scmiaistrative eppeel~
as
"FOR PUBLICATION IN MEST’ S HAWAI'I REPCRES AND PACIFIC REPORTER
eS
Robert A. Chong and
J. Thomas Weber (Ayabe, Chong,
Nishimoto, Sia & Nakamura) for
Defendants~Appellees
Ritz-Carlton Kapalua and
Marriott Clains Services Corp.
Robyn M. Kuvabe and
Frances E. Lum (Deputy Attorneys
General) for Defendants-Appellees
Department of Labor and
Industrial Relations and Special
Compensation Fund.
ICURRENCE BY MOON, C.J. VIN:
Gre
eG
I concur in the result only.
ee
|
cdeea852-f464-449f-98b5-2cf1d85022b7 | Bylsma v. Hawaii State Judiciary | hawaii | Hawaii Supreme Court | No. 28160
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
DAVID G. BYLSMA, Plaintiff Pro Se,
HAWAII STATE JUDICIARY, Defendants. In
ORIGINAL PROCEEDING i
ORDER
(By: Levinson, Acting C.J., Nakayama, Acoba and Duffy,
and Intermediate Court of Appeals Judge Nakamura,
in place of Moon, C.J., recused)
ass
Upon consideration of the petition for a writ of
mandamus filed by petitioner David Bylsma and the papers in
support, it appears that the duties imposed upon the Commission
on Judicial Conduct by RSCSH Rule 8.6 axe duties owed to the
supreme court, not to petitioner, and the duties involve judgment
and discretion and are more than ministerial. Cf. In Re
Disciplinary Bd. of Hawaii Supreme court, 91 Hawai'i 363, 371,
984 P.2d 688, 696 (1999). Therefore, mandamus relief against the
Commission on Judicial Conduct is not available to petitioner.
Id. (Wandamus relief is available to compel an official to
perform a duty allegedly owed to an individual only if the
individual's claim is clear and certain, the official's duty is
ministerial and so plainly prescribed as to be free from doubt,
and no other remedy is available.). Therefore,
ov
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
Honolulu, Hawai"i, October 4, 2006.
Sees,
Prater 0. rere O70
ear
Cs € Dug Qs
Cag U. Fobra
|
053ca292-014a-4215-a8bb-53ebbeaa7505 | Jones v. Marlin | hawaii | Hawaii Supreme Court | no. 27466
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
Tanorey sana Jowes, fa KineTEN gem, BB
SESE g
voosaen, vara, :
betendant Appel dant tit toner.
=
censzonans 0 185 s)resWEDsAME couRE oF APEEALS
Ce rT oe
_
ESTING, ABELLEAUION FOR WRIT
Upon consideration of the application for a weit of
Foner eit UnnEN RnR UNIDOS SR ORS OO nRIONT
petitioner Michael Marlin, the application is hereby rejected.
bare: sonotuls, Havai't, oveaber 20, 2006,
son tie cooks
TE Oo
+ Oy
rovers tevin *)
creme se :
vacthew Ke chore
WettneY S pelat-
SoeoHis cefeuaarecoppetien
seeharagas tichas!
sos ute,
weidered by: Moon, C.J-, Levinson, Nakayama, Aeobs,
aad
|
9fa731c2-568c-40d1-954f-f689c11f2c7d | Scheffer v. Burns | hawaii | Hawaii Supreme Court | LAW LIBRARY
no, 28163 Ss
SE
RICHARD SCHEFFER and JACQUELINE SCHEFFER, $5\ > &
Petitioners, Bie =
ve. 3
HONORABLE JAMES S. BURNS, Chief Judge, HONORABLE JOHN S.W.
LIM and HONORABLE DANIEL R. FOLEY, Associate Judges,
Intermediate Court of Appeals of the State of Hawai'i,
Respondents.
ORIGINAL PROCEEDING
(crv. NO. 04~1-0004)
ORDER
(By: Moon, C.J., Levinson, Nakayama,
Acoba and Duffy, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioners Richard Scheffer and Jacqueline
Scheffer and the papers in support, it appears that the
Intermediate Court of Appeals does not have jurisdiction in No.
27768. Therefore,
IT 18 HEREBY ORDERED that the petition for a writ of
mandamus is dismissed.
DATED: Honolulu, Hawai'i, October 6, 2006.
Tipton
Stemioine
Posse Arete te
Bonn t, Duty ers
|
5b51ba8c-794d-4eb0-b985-f48bc3a5b455 | Willis v. Swain. S.Ct. Opinion, filed 12/15/2006 [pdf], 113 Haw. 246. | hawaii | Hawaii Supreme Court | ‘++fOR PUBLICATION in WEST’ S HAWAI'I REPORTS and PACIFIC REPORTER
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
00
SHILO WILLIS, Plaintiff-Appellant,
CRAIG SWAIN and FIRST INSURANCE COMPANY OF HAWAII, LTD.,
Defendants-Appellees,
and
DOF DEFENDANTS 1-100, Defendants
No. 25992
APPEAL FROM THE FIRST CIRCUIT couRT ©
(Civ. No, 01-1-0467-02)
OCTOBER 26, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY LEVINSON, J
The plaintiff-appellant Shilo Willis appeals from the
July 24, 2003 judgment of the circuit court, the Honorable Eden
Elizabeth Hifo presiding, (1) ruling in favor of Willis and
against the defendant-appeliee Craig Swain in immaterial part and
(2) dismissing all other clains.
on appeal, Willis contends that the circuit court erred
in granting summary judgment in favor of the defendant-appellee
First Insurance Company of Hawaii, Ltd. (First Insurance)
inasmuch as she was entitled to assigned claims coverage pursuant
to Hawaii's Motor Vehicle Insurance Law, Hawai'i Revised Statutes
(HRS) ch. 431, art. 10¢ (1993 6 Supp. 1998), see infra note 2.
qa
‘*7FOR PUBLICATION in WEST’ S HAMAI'T REPORTS and PACIFIC REPORTER **#
For the reasons discussed infra in section I11.8, we
vacate the circuit court’s July 24, 2003 judgment and remand for
further proceedings consistent with this opinion.
BACKGROUND
On July 1 or 2, 1998, Willis received from the
Department of Human Services (DHS) a “certificate of eligibility
for . . . motor vehicle insurance through the Hawai[']i Joint
Underwriting Plan ((JUP)] Bureau [(JUPB)]." (Capitalization
altered.) The certificate identified Willis as a recipient of an
unspecified type of “public assistance("] as of [May 12, 1992).
consisting of direct calsh] payments.” Willis was therefore
“eligible for basic motor vehicle insurance coverage at no cost,
in accordance with (HRS §} 431:10C-407(b) (2()]."? Willis
£ See Hawai'i Administrative Rules (HAR) § 27-654-8 (1994) (*EIIn
order co receive Hawai(‘]i no-fault auto insurance at no cost: (1) AM
Indi vidval shall be a recipient of financial sosistence poyments ox
supplemental security incone benefite[]")~
* sae, Tt Hawai'i Motor Vehicle Insurance Law, HRS ch. 431, art. 200
(Supp. 1998), provided én relevant part’
S11 143i :10c-102 Purpose.
(2) ‘The purpose of this article is to.
(a) Create’ syston of reparations for accidental harm and
lose arising from motor vehicie accidents{=)
(b) to'eifectuate this system of motor vehicle insurance and to
encourage participation by sll drivers in the motor wenicie
i2] Those persons truly economicsliy unable to afford
insurance are provided for under the public assistance
provisions of this article,
(00-103.5 Personal injury protection [(PIP)} benefits
Sofined; linsts.
(a) [PIP] benefits, with respect to any accidental harm, meant all
appropriate and expenses necessarily
incurred as a result of the accidental harm and which are
(cont snved. ..)
‘*4P0R PUBLICATION in MEST’S HAWAI'T REPORTS and PACIFIC REPORTER ***
81. .continued)
aubstantially comparable to the requizenents for prepaid health
Care plans -
{b) (PIP) benefits, when applied to a motor vehicle insurance
policy issued at no cost under [HRS §) 431!10c~410(3) (A
(Idisailowing premiuns "(f}or the licensed public assistance
driver, a9 defined in [H&S 8] 431:10¢~407 (by (2) (Al "Ily shall not
include benefits under subsection (a) for any person receiving
public assistance benefits.
§{)431:10c~301 Required motor vehicle policy coverage.
(a) An insurance policy covering 2 motor vehicle shall provide
(1) Coverage specified in {HRS §) 431;10C-304{ (*Gotigation
te pay ELF benefits"). )
(b) A meio: Vehicle insurance policy shail include:
i4j Coverage for loss resulting from bodily injury ((BI))
Suffered by any person legally entitled to recover
Ganages from ownere or operators of underinsured moter
Venicles. An insurer nay offer the underinsured motorist
TUTMN | coverage required by this paragraph in the sane manner
a5 uninsured motorist ((UM)] coverage: provided that the offer
Of both shail:
ici Provide for written rejection of the coverage
igi An'insurer shai offer the insured the opportunity to purchase
{0M “coverage "these offers are to be made when s motor
Yenicie insurance policy 1# fir8e applied for or sesued
el If UN) coverage » : . is rejected, pursuant to
[subsection ib!
(2) Tne offers required by (subsection }(d) are not required to be
ase:
(3) fhe weieeen rejections required by [subsection }(b) shall be
presumptive evidence of the insured’ s decision to reject the
Sptions,
$11 143i:10¢~-403 (suPB}‘s duties. The [JUFB] shall promptly assign
ich claim and application, and notify the clainant or applicant
Sf the identsey and address of the assignee cf the claim or
Gpplication. . . s The assignee, thereafter, has rights and
cbisgations | In‘che" case of financial’ inability of a motor
Yeniele insurer |‘ . to perform its obligations, as if the
Besignee had written the Spplicable motor vehicle insurance polley
fof lawfully obligated itself to pay motor vehicle insurance
benefit
Afscations
$1 ya3i:100~407 cr
iwi
(continued:
S#0POR PUBLICATION in WEST'S HAWAI'T REPORTS and PACIFIC REFORTER *#*
#1. scontinued)
(2) The [JUP] shall provide (PIP) benefits... , at the
option of the owners, for
(a) ALL Licensed’ drivers . . . who are receiving
Public assistance benefits consisting of direct cash
Payments... j provided that the licensed drivers
peimare the sole registered ounere of the motor
vehscies co be insured ss {cl
Each’ category of driver/owner under subparagraph(] (A)
«may secure motor vehicle insurance coverage through the
jade} atthe inaivicsai”s option... Any person becoming
Ligible for (JUP] coverage under subparagraph Al shall first
exhaust ali paid coverage under any motor vehicle insurance
Policy then in force before becoming eligibie for (JUF)
Soveraa
A ceititicate snail be issued by (DKS) indicating that the
person is a bona fide public ascistance recipient ar defined
In subparagraph (A). The certificate shall be Geaned = policy
for the purposes of [the Insurance Code, HRS ch. 431} - +
ana
(3) Onder the [JUP), the required motor vehicle policy coverages
= provided in’ {HRS S} ¢31:10c~301 shall be offered by every,
insurer to each eligible spplicant assigned by the (JUPB}. Tn
adaition, (Us) coverage!) shall be offered
in conformance with’ (HRS §) ¢31:10¢-301 "= for each clase
except that defined in paragraph (2)(Al |. |
$1 143i:10¢-408 Assigned clains.
(a) Each person sustaining accidental harm . . . may, except a:
provided in subsection (b), obtain the motor vehicle insurance
Benefits though the (028) whenever:
(2) Ne insurance benefits under motor vehicle insurance
policies are applicable to the accidental harm, [or]
(2) No such insurance benefite applicable to the accsdental
harm can be identified|.]
ici Any person eligibie for benefits under (HRS ch. 431, art, 10C,
pt. IV" (°[JUP}")], and who becomes eligible to file a claim or an
faction against the mandatory (81) Usability... poliely), shally
‘pon the (JUPB)'s determination of eligibility, be entitled to:
(1) The foli [21] benefits as if the victim hed been covered as
an insured at the tine of the accident producing the
SGeldental harms and
(2) The rights of claim and action against the insurer, assigned
under [HRS $] £31:10c-403, wlth reference to the mandatory,
[Bt] itabsiity policy for’ accidental harm
Any claims of an eligitie accigned claimant against . | | (the)
mandatory (81) lisbiiity ..- policly) » . shall be filed with
tthe ingurer assigned and shall be subject to’ail applicable
Conditions and provisions of (ARS ch. 431, art. 10¢, pt, IV
([OUP]"), suppts. A (*Fareieipation and fdministrstion”) and @
(Continued...)
‘++F0R PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER ***
enrolled in a “certificate policy” administered by First
Insurance,’ which was effective from July 2, 1998 through July 2,
2. -eontinued)
(coverages and Assignment of Clains")]
S{ 1431:2106-410 Schedules:
ia} | 1. (a) For the Licensed public assistance driver, as defined in
[sas §) 431si0c~¢07 (b) (2) (A), Ao premium shall be assessed
for the mandatory sunisun (Pie) (coverage)? and ail
policies shall conform to [HRS §} <31:10c~407(b) (2) («1
Ettective July 2, 1999, April 27, 2000, and May 5, 2006, the Legislature
Snended HRS § 421:10"103-5 (a) in innaterial respects. "See 2004 Haw. Sess. L.
Reese, 58 1 and # st 265-86; 2000 Haw. Sess. L. Act é5, $8 1 and 3 at 122;
1999 Haws Ses. Ls Act 222, $§ 4 and € at 707. Effective June 28, 1989,
January i, 2002, and July i, 2006, the legislature amended HRS
$'451:100%407(b) in immaterial respects. See 2006 haw. Sess. L. Act 285, $6 ¢
Gnd? at 1191, 1173; 2001 Haw, Sess, Ls Act 157, §§ 32 and 39 at 402, 404;
$859 naw. Seas. L. Act 142, $6 3 and § at 459, ‘Effective April 19, 2001, the
legisietuce amended HRS § 431710c~#08(a) to (2) to provide for assigned Claix
benefits where "(a) (2) Inje Liabinity or (Oa) insurance Benefits...
are applicable” (new language snderscored) and In other immaterial respects.
Ses 2001 Haw. Sess. L. Act 14 at 16-17
2 HAR $6 16-23-68(a) (“Each insurer shall be'a nenber of the JUP.
As a condition of Licensure it shall (2) Accept’ appointment as 3
Beroicing carrier if the commissioner finds it necessary in the public
interest and that the insurer is capable of performing as 2 servicing
carrier."], ~73(a) and_(b) (1999) {concerning procedure for obtaining a
Certificate policy). HAR § 16-23-75(a) provides an relevant part
{DiS} shall provide « certificate of eligibility for JuP
coverage to eligible licensed arivere who ave receiving
public aesistance benefits from (DKS) or from che Supplemental
Becursey Ineane program under the Social Security Administration
and who desire basic motor vehicle insurance policy coverage under
the} SOP; previded such licensed orsvers ‘are the sole
fegiatered owners of motor vehicles to be ingured under the JUP.
The applicane shall submit the certificate eo the Servicing
Cerrier of the applicant's choice for s actor vehicle insurance
policy. Certiticates received by the servicing carrier within,
Phisty daye from the date of certification... shall be accepted
and treated a2 if [they] were payment in fuil for the requested
notor vehicle sneursnee coverages. The servicing carrier shall
Certity thie certificate whsen wiil function as a metor vehicle
Sneurance policy» -
‘Only basic motor vehicle insurance
policy coveranes, as defines 2m (HAR 68) 16-23-4( (a) (PIP and
isbility (ior i, death, and property damaged)
J, *$ (EIB). and 9
t ng ie The gricr to January
Tevelzof Uw ane OM insufance) (199911, shall be bound
(continued...)
‘*++FOR PUBLICATION in WEST'S HAWAI'T REPORTS and PACIFIC REPORTER *##
1999, Willis’s certificate policy did not include uninsured
motorist (UM) coverage, but her certificate of eligibility
stated: “If you desire... [UM] . . . coveraget] . .. ,
contact an insurance agent to assist you in obtaining thlis}
coverage upon payment of the appropriate premium.” The record on
appeal is silent as to whether Willis actually contacted First
Insurance or any other insurer regarding UM coverage.
On February 10, 1998, Willis was a passenger in an
uninsured vehicle owned and operated by Swain when Swain
rear-ended another vehicle, injuring Willis.‘ Even after her
certificate policy expired on July 2, 1999, Willis “continued to
see [her] doctor(] for the injuries [that she) sustained th:the
+ collision” and “to incur medical bills . . . relat{ing to}
and ar(ising] out of the . . . collision." At some point after
the accident, Willis filed an “application for benéfits under the
Hawaif']i Assigned Claims Plan," which the JUPB assigned to
continved)
2 added.)
It is undisputed that, until the accident, Willis believed swain's
vehicle to be insured.
+ Nevertheless, in her response to First Insurance's requ
admissions, Willis “adait{ted) that medical treatment that [she] received as 3
Fesuit of {her] involvenent in the subject accident was paid for by the
(Dis). The record on appeal is silent as to how much of the cost was borne
by DHS. Consequentiy, the circsit court, on remand, must undertake further
fact-finding. See intra section Iv.
«Willie's certificate policy would have been governed by HAS
§ 431:20c-409, whereas her later “assigned claim" sought "last resget™
coverage under HRS § {31:10C-408. A concise clarification of the JUP's two
Gistinet functions is provided by WAR § 16-23-67 (1998)
(a) The [90P) is intended to provide motor vehicle insurance
and optional edditionei insurance ins convenient and expeditious
anner for . «+ persone who otherwise are in good faith entitied
(eont noe...)
{FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REFORTER +4
First Insurance on August 11, 1999.
on December 28, 1999, First Insurance informed Willis
that it would grant her no benefits pursuant to the assigned
claim because, Firet Insurance maintained, she was covered under
her certificate policy on the date of the collision. (Citing HRS
§.431:10C-408.) Accordingly, on February 9, 2001, Willis filed a
complaint in the circuit court of the first circuit, the
Honorable Eden Elizabeth Hifo presiding, praying, inter alia, for
damages from First Insurance for “breach of contract,” “bad faith
refusal to pay Liability coverage,” “misrepresentation,” and
“unfair and deceptive acts or practices." (Capitalization
omitted.) On March 31, 2003, First Insurance moved for stmmary
judgment. In its menorandum in support, First Insurance argued
that.
[tine Certificate Policy issued to [willis] expiicitly
states that (UM) coverage is available to certiticate
policyholders by contacting an insurance agent and paying
the "appropriate preniua.”” [Willis] did net elect to
purchase [il] coverage during the time chat she woe a First
Uneurance certificate policyholder. The current claim by
waits) Le nothing lest than a deliberste attempt to
obtain free (OM coverage) when [Willis] elected not to
purchase such coverage,
(continues)
to, but unable to obtain, moter vehicle insurance and optional
Sdditionsl insurance thecugh ordinary methods. Inaurers will pool
their losses and bona fide expenses nder [the] JUP co prevent’ the
Imposition of any inordinate burden on any particular insurer
(b) Another part of the JUP consists of the assignment
thereto of clsine of victins for whom no policy is applicable,
Such as the hiteand-run victim who se not covered by’ 8 moter
Yehicle insurance policy. The losses and expenses under the
assigned clains program are provrated among and shared by ai2
hotor vehicle insurers and seif-ineurers.
See alee HAR 6 16-2:
70 (299) ("ALI costs incurred in the operation of
ihe [abEe) ano the cperation ef the (JOF] shail be allocated fairly and
Equitably enong the GUP menbers."), “85. (“The Commissioner ehall snmuaily
prorete among. . - all insurers all costs and claims paid under the
Sseigned claims progean.")
‘#ATOR PUBLICATION An WEST'S HAWAI'T REPORTS and PACIFIC REPORTER *#*
Willis responded:
Jf the legislature had intended to exclude the bodily injury
(i) coverage in the aesigned clains policy, it wold bare
done so just Like it did under (HRS) 431;10{c) "109-8 where
it specifically exclude 2 person from receiving (pereons!
anjury protection (IPIP(}} benefits in a cervificace policy.
cade pitine Key elenent that the legisisture intended aay
Eat people should have coverage, snd for that ressen chey
specifically stated in the statute that it had to be
Asability coverage in 2003.[") In 1999, . . <1 used the
word “benefits("/] it did not exclude even in 1999" the Tet)
he whole purpose . . . of the no-fault low 8 vemedval oe
nature and in porpoce.
[t)ne purpose ot the assigned claims...» was
to provide the indigent the opportunity to have coverage,
And, in essence, to say thats person who has a certificate
Policy is not entitied to the assigned claims polley accis
bey in effect, punishing an individual for having nad the
certificate policy issued) ss
satus llt8S 81 421:0{ci-30i . . . very clearly says a
motor vehicle insurance policy shail include lisbiltey
Soverage. se the intent of the legislature was
be stford the indigent the opportunity to save Liabiliey
overage, and that is why. -'- in'2002 they made the
specific’ qualification in jmas’s 431:10C+408 (a) (31) which
fells us. specifically that if there is [°(nl}e liabiaiey or
{uH) Ansurance benefits, {*) . .. the assigned claim pslicy
ss applicable. (Seg aupra note 7.)
The circuit court granted First Insurance's motion and, on July
24, 2003, entered final judgment in favor of First Insurance and
against Willis.* Seven minutes later, Willis filed her notice of
appeal to this court,
TT. STANDARD OF i
We review the circuit court's grant or denial of sumazy
judgment ge novo. 1 7
3¢ Hawai'i 213, 221, 11-P.3a 1, 9 (2000). The sree EE
Granting @ notion for summary ‘judgeent Is sestles
Millis presumably refers to Act 14 (2092), which made nore
specific HRS § 431:10C-408 (a) (11's precondition for JUP benefits: SNe
{ui _insurance benetits ‘ere applicable to the accidental
arn” (new language underscored). See auata notes.
* emexTht SAEEUIE court's July 24, 2003 judgment farther disposed of
jfelad other clains, including [First Insurance's) crocs clels sgsicet
Swain)” and Wiilis's cleims against Swain, none of which it gersare to this
appeal.
‘+480R PUBLICATION in WEST'S HAWAI'T REPORTS and PACIFIC REPORTER *#*
{Slusmary judgeent is appropriate if the pleadings,
Gepositions, answers to interrogatories, snd
Soniseions on file, together with the affidavits, if
any, show that there ig no genuine issue es to. any
aterial fact and that the moving party is entitied to
Judgment az a matter of law. A fact se material sf
proof of that fact would have the effect of
Establishing cr refuting one of the essential elenents
of a couse of action or defense asserted by the
Parties. ‘The evidence mist be viewed in the Light
host favorable to the noteoving party.” In cther
Mords, we mist view sll of the evidence and the
Shlertntes drawn theretron inthe Light most favorable
to the party opposing the motion:
Ads (citations and internal quotation marks omitted)
Querubin v, Thomas, 107 Hawai'i 48, 56, 109 P.3d 689, 697 (2005)
(quoting Durette v. Aloha Plastic Recycling, Inc.,’ 105 Hawai'i
490, 501, 100 P.3d 60, 71 (2004) (quoting Simmons v. Puy, 10S
Hawai'i 112, 117-18, 94 P.3d 667, 672-73 (2004) (quoting Kahale
va City & County of Honolulu, 104 Hawai'i 341, 344, 90 P.3d 233,
236 (2004) (quoting SCI Mant. Corp, v. Sims, 101 Hawai'i 438,
445, 71 P.34 389, 396 (2003) (quoting Coon vs City & County of
Honolulu, 98 Hawai'i 233, 244-45, 47 P.3d 348, 359-60
(2002))91))-
IIT. DISCUSSION
AL The a
On appeal, Willis contends that there was no other BI
insurance for her to turn to and that the legislature intended
for her to be covered. (Quoting HRS $§ 431:10C~102, -103.5, and
~408, see supra note 2; Allstate Ins. Co, v. Kaneshiro, 93
Hawai'i 210, 998 P.2d 490 (2000); Estate of Doe v, Paul Revere
Ing. Co., 86 Hawai'i 262, 273, 948 P.2d 1203, 1114 (1997);
Neumann v. Ramil, 6 Haw. App. 377, 380, 722 P.2d 1048, 1051
(1986); Washinaton v. Fireman's fund Ins. Cos, 68 Haw. 192, 201,
‘"*TFOR PUBLICATION An WEST'S HAWAI'T REPORTS and PACIFIC REPORTER #*#
708 F.2d 129, 135 (1985); Sarcena v. Havaiian Ins. ¢ Guar, co.,
S7 Haw. 97, 102, 678 P.2d 1082, 1085 (1984).) (Citing HRS
$ 431:10C-407; paves v. F: i. Cou, 77 Hawai'i 117, 121, 8@3
F.2d 38, 42 (1994).) (Some citations omitted.)
First Insurance counters that Willis did not qualify
for assigned claims coverage “because she was the naned insured
under her own Certificate Policy with First Insurance and
sherefore had identifiable motor vehicle insurance coverage on
the date of the subject accident.” (Quoting Neunana, 6 aw. App.
at 365-85, 722 P.2d at 1053-54; HRS § 432;100-407 (b) (3) .)
(Citing HRS § 431:10C-408(b).) First Insurance essentially
argues that certificate policies are not required to inelade UM
Coverage to comply with 431:10C-301(b) (4) and Willis, by
Gisregarding First Insurance's “offer of supplenental uM
coverage, forewent her eligibility for assigned benefits.
(oveting HRS $ 431:20¢-407(b) (3).) FLzst Insurance's position is
meritless,
analysis
The core issue as framed by the parties is whether an
SEfer and 4 tacit refusal of UM coverage render the UM coverage
“applicable” and “identiti (able) so as to relieve the assignee
insbrer under HRS § 431:10C~408, see aupra note 2, of the duty to
SonPensate the injured claimant. To address this particular
ery would require us to construe the terms “applicable” and
“icentifi{able].” In that regard, ve do not believe that the law
of this Jurisdiction or any other jurisdiction or the Uniform
10
/*EOR PUBLICATION in WEST’ S HAWAI'I REPORTS and PACIFIC REPORTER *#*
Motor Vehicle Accident Reparations Act (UMVARA)? or its
commentary, § 18(a) (1), (3) & omt., 14 U.L.A, 82 (2005 & Supp.
2006), are illuminating. Fortunately, we need not engage in an
exercise in statutory interpretation because an issue of fact is
cutcome-dispositive. Underlying First Insurance's argument are
two questionable premises: (1) that First Insurance indeed made
an effective offer of UM coverage; and (2) that such coverage
would have “applifed)” to Willis’s status as a passenger. in a car
that was not her own, We conclude that First Insurance did not,
as a matter of law, “offer” Willis “applicable” UM, coverage.
2. Eirst Insurance did not mak
‘coveraue!
We agree with First Insurance that it was not required
to furnish UN coverage as an element of Willie's certificate
policy. HRS § 431:10C-407(b) (3), see supra note 2, provides, in
general, that “the required motor vehicle policy coverages as
provided in (HRS §} 43:
to each eligible applicant assigned by the [JUPB]
0c-301 shall be offered by every insurer
However, UM
coverage is excluded from this provision when the insured is a
member of the “class defined in [HRS § 431:10C-407(b)} (2) (A),”
Aues, @ public assistance recipient. In fact, HAR § 16-23-73(a),
see supra note 3, literally prohibits the servicing carrier from
+ tn 1972 and 1972, the National Conference of Commissioners on
Uniform State Laws, under contract with the United States Department of
Transportation, drafted and promulgated the UM/ARA as "a complete and
comprehensive cysten of providing reparations for injuries and losses arising
from moter vehicie accidents,” “with the hope that uniformity would eventually
be cbtained among all the states." 14 U.LuA. 35 (2008 ¢ Supp. 2006)) H. King
Nil, Je-, The Uniform Moser Venice Resident Reparations Act, © Forum i, 2-4
(1973-93) “Wile ne Jurisdiction bat cacept ea) the {UMVARAT’ as such,” the
District of Columbia and eighteen states other than Hawai'i “have adopted some
form of ‘Wo Fault’ legisiseion.” 2€ U-L-A., gupta, at 40-42
un
POR PUBLICATION in WEST’ S HAMAI'T REPORTS and PACIFIC REPORTER #4
including UM coverage with a certificate policy. Except “[f]or
famed insureds who prior to January 1, 1998, elected to purchase
(uM) and/or (UIM) coverages,” an unadorned certificate policy
incorporates PIP and liability alone. Id, Unless and until the
insured can afford to and wishes to augment her certificate
policy by buying UM coverage with her own funds, she carries no
uM insurance.
Nevertheless, First Insurance contends that it
“offered” Willis supplemental UM coverage, thereby creating an
alternative to, hence disqualifying, Willis’s assigned claim. We
disagree, The sum total of the evidence that First Insurance
offered UM coverage to Willis is the statement, set forth ‘in
Willis's certificate of eligibility, that “[i]£ you desire .
(uml... coveraget] . . . , contact an insurance agent to
assist you in obtaining these coverages upon payment of the
appropriate premium.” This is at most an invitation to initiate
negotiation, not an offer.
“An offer is the manifestation of willingness to enter
into @ bargain, so made as to justify another person in
understanding that [the person's] assent to that bargain is
invited and will conclude it.” Restatement (Second) of Contracts
§ 24 (1981 & Supp. 2006). While particular words and formalities
are not required, Wong Kwai v. Dominis, 13 Haw. 471, 476 (1901),
the communication must be sufficiently definite to manifest the
maker's intent to bestow upon the addressee the power of
acceptance, see, e.a., Restatement, supra, § 24 reporter's note
gmt. ay 1 Richard A. Lord, Williston on Contracts § 4.7 (4th ed.
1990 & supp. 2006).
‘s+4F0R PUBLICATION in MEST'S MAWAI'T REFORTS and PACIFIC REPORTER ***
As a matter of law, the certificate’s “general |
expression of willingness to bargain [did] not constitute an
offer.” See Lord, supra, § 4.7. At most, First Insurance
flagged for Willis the fact that no statute or regulation
bestowed a UM component on her certificate policy and directed
her to an unspecified “insurance agent” to learn about the
requisite premiums and procedures. No reasonable reading of the
statement could elucidate (1) which insurer(s) might underwrite
Willis’s UM coverage or (2) the premiums"? or any other terms.
Compare, e.9., Zanakis-Pico v, Cutter Dodae, Inc., 98 Hawai’
309, 324 6 n.26, 325-26, 47 P.3d 1222, 1237 & n.26, 1238-39
(200215 v. Paschoal, $1 Haw. 19, 23,
449 P.2d 123, 125-26 (1968), with, e.g., Earl M. Jorgensen Co. v.
Mark Constr., Inc., 56 Haw. 466, 468, 540 F.2d 978, 962 (1975).
RS ch, 421, art. 10C, pt. IV.C (1993 6 Supp. 1998) (xecodified in
2005), anended by 2006 liaw. Seas. 'L. Act 269, $§ 5 anc’? at 1172-75, provides
for the insurance commissioner to svandaraize rates for JUP policies Bur does
not necessarily proninie individual insurers from offering lower rates than
those set by the’ conmissioner.
“gor further discussion of what is too uncertain to quality as an
offer, see Restatenent, gupea, § 53 ("Certainty"), which provides:
(2) Even though # manifestation of intention is intended to
be understood as an offer, it cannot be accepted so as to form a
Contract unless the terms of the contract are reascnably certein.
(2) The terns of 2 contract are reasonably certain sf they.
provide a basis for detersining the existence of 2 breach and for
Giving an appropriate renedy.
(3) the tact that one or nore terms of 2 proposed bargain
are lefe open of uncertain may show that a manifestation of
Untention is not intended to be understood es an effer cr as an
acceptance.
Restatenent, guora, § 26 ent. d (“Invitation of . . . offers"), supplies the
following Lilustration:
z Sit proaptiy angvers, “I Will buy your house for
£25;000 cash.” There 1s so contracts AL
dhgdestion thet an-offer be mage to him Bhi
wade a7 offer
continued...
‘**POR PUBLICATION in MEST’S HAWAI'T REPORTS and PACIFIC REPORTER **#
First Insurance having made no offer of UM coverage in
the first place, a fortiori, we cannot say that First Insurance
has demonstrated an “applicable” and “identifilable]” alternative
to Willis’s assigned claim. It follows inexorably that First
Insurance was not “entitled to judgment as a matter of law” on
its March 31, 2003 motion.
4. Placing financial responsibility on insurers, for
oa wi
with
policy.
Finally, First Insurance makes the following public
policy argument:
(IE (i248) had been insured by af-0M) while
operating ner own vehicle, there is absolutely no question
that she would sot be entities to Assigned Claims [Bf]
coverage and that her sole recovery, if sry, would be based
on whether or not she had (UM) coverage onder her own
Certificate Folicy with Firet Insurance. Why should
free 3
Sifterentiy, why shoud (willie) be re!
Consequences Of choosing not to purchase [i] coverage
simply because she was riding as a passenger in someone
else's Vehicle at the tine she sustained injury?
: ner ry 408,
dehicle sccigent, If Assigned Clains coverage was trey
imeant to spply to anvone for whom there is ne’ [OM] coverage,
then the Assigned Grains Program would sake basic” (UM)
coverage . - s completely unnecessary and superfluous
There would be no point in peying s premium for (0M)
"1, seontinved)
(Emphases added.) See alae id, § 33 ont. © ("Incompleteness of ters is one
of the principal reasons why advertisements and price quotations are
ordinarily not interpreted a2 offers.) in the present matter, Fisst
Insurance's purportes “offer” patently contravened the certainty Fequirenent:
Sg was even more precatory than k's suggestion that s/he would consider
$20,000."
4
+4908 PUBLICATION An WEST’ § HAWAI'I REPORTS and PACIFIC REPORTER
coverage if ell one had to do was apply to the (JUPB} and
Gequest that {one’s BI] lain be aseigned to a participating
(Some emphases added and sone in original.) (Citing Bowers vs
‘Alamo Rent-A-Car, Inc., 88 Hawai'i 274, 965 P.2d 1274 (1998).)
First Insurance distorts Willis’s characterization of
the assigned claims program by implying that it would “create
universal (UM) coverage for anyone injured in @ motor vehicle
accident” (enphasis added). First Insurance overlooks HRS
§ 431:10C-408(b), which “disqualifie(s},” for example, a claimant
who actually owns or is the registrant of one of the motor
vehicles “(2) . . . (A) . « « involve(d] in the accident.” In
other words, UM coverage, far from “superfluous,” protects car
owners while driving or riding in their own vehicles and, hence,
is far broader than the assigned claim system, which applies only
in “residual situations,” see UMVARA § 19 cmt., 14 U.L.A, 85
(2008 & Supp. 2006).
The absurd consequence of First Insurance's proposition
would be that insurers, merely by offering, could compel even
people who do not own cars to purchase “passenger UM insurance”
and “pedestrian UM insurance” to hedge against the risk of injury
by an impecunious and uninsured or underinsured driver or ina
hit-and-run collision. Even one who does happen to own a motor
vehicle but never drives it (such as a parent of a teenage
driver) could be hamstrung by an insurer's mere offer into paying
2 monthly premium to avoid a financial catastrophe from an injury
outside the confines of the car.
In short, Willis should “be treated . . . differently,”
a5 the legislature made clear by excluding from assigned coverage
15
TOR PUBLICATION Sn WESE'® HAKS'E RRFORTS and PACIFIC RBFORTER “4
(1) “feyne owner or registrant” of an “involve(d)” vehicle and
(2) the knowing passenger of an uninsured vehicle but not (3) the
injured passenger of a vehicle that later turns out to be
uninsured.
Tv. concwusroN
In Light of the foregoing analysis, we hold that the
circuit court erred in avarding summary judgment in favor of
First Insurance and against Willis. Accordingly, we vacate the
circuit court's July 24, 2003 judgment insofar as it dismissed
Willis’s action against First Insurance and remand for further
Proceedings consistent with this opinion. On remand, to the
extent that the trier of fact finds that Willis’s post-July 2,
1999 medical expenses renain unpaid and her assigned claim
complies with the Motor Vehicle Insurance Law in other respects,
the circuit court shail order First Insurance to tender the
appropriate benefits under the assigned claims progran.
on the briefs:
Bradford F.K. Bliss, Go
of Lyons, Brandt, Cook
& Hiramatsu, for’ the Bt Pt
defendant-appeliee First
Insurance Company of Hawaii,
Lea. rates Ob aeaeyarrien
Fernando L. Cosio,
for the plaintiff-appellant
Shilo Willis
Vom & Das
16
|
a14a2f24-dc6d-4eb0-96c5-66b6d63e4cc8 | State v. Ruggiero | hawaii | Hawaii Supreme Court | No. 27202
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
STATE OF HAWAI'I, Respondent /Plaintif£-Appellee,
ADAM RUGGIERO, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CRSE NOS. 04-56974 AND 04-56967)
IECTIN Er
(By: Duffy, J., for the court)
Petitioner/Defendant-Appellant Adam Ruggiero’ s
application for writ of certiorari, filed on October 6, 2606, is
hereby rejected.
Dare!
Honolulu, Hawai'i, October 31; 2006.
beborah 2. Kim, oR THE cour:
Depsty Public betender,
for, petitioner /cefendant~ .
appellant on the application Kane, Det
Associate Justice
Sey
\,
eof wi”
3
yey 92s,
sual SVN ano
Yar TYHuaN
* considered by: Moon, C.J., Levinson, Aceba, and Duffy, 23
|
a37f08a1-2b6c-4fb8-8418-c7531f5f3c55 | United Public Workers, AFSCME, Local 646, AFL-CIO v. Shimizu | hawaii | Hawaii Supreme Court | LAW LIBRARY
* NOT FOR PUBLICATION ***
NO. 26268
|
IN THE SUPREME COURT OF THE STAT
oats
oi a1: El
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
Complainant Appellant -Appellee,
KENNETH A. SHIMIZU, Deputy Director, Department of
Environmental Services, City and County of Honolulu;
ERIC TAKAMURA, Director, Department of Environmental
Services, City and County of Honolulu; KENNETH
NAKAMATSU, Director, Department of Hunan Resources,
City and County of Honolulu; and MUFI HANNEMAN,
Mayor, City and County of Honolulu,?
Respondents Appellees-Appellants,
and
HAWAII LABOR RELATIONS BOARD, BRIAN K. NAKAMURA,
Chairperson; CHESTER C. KUNITAKE, Board Member; and
KATHLEEN RACUYA-MARKRICH, Board Member, Appellees-Appellees.
UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,
Complainant ‘Appellant -Appellee,
KENNETH A. SHIMIZU, Deputy Director, Department of
Environmental Services, City and County of Honolulu;
ERIC TAKAMURA, Director, Department of Environmental
Services, City and County of Honolulu; KENNETH
NAKAMATSU, Director, Department of Human Resources,
City and County of Honolulu; and MUFI HANNEMAN,
Mayor, City and County of Honolulu,*
Respondents Appellees-Appellants,
(2008),
Pursuant to Hawai'i Rules of Appellate Procedure Rule 43(c)
Kenneth Nakanateu, and Miti Hanneman were
Kenneth &. Shimizu, Erie Takemura,
substituted as parties to the instant appeal
* see gupra nove 1
*** NOT FOR PUBLICATION ***
and
HAWAII LABOR RELATIONS BOARD, BRIAN K, NAKAMURA,
Chairperson; CHESTER C. KUNITAKE, Board Member; and
KATHLEEN RACUYA-NARKRICH, Board Menber, Appellees-Appellees.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NOS. 03-21-0546 & 03-1-0552)
‘SUMMARY DISPOSITION ORDER AND ORDER DENYING
7
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Appellants Kenneth A. Shimizu, Deputy Director,
Department of Environmental Services, City and County of
Honolulu; Eric Takamura, Director, Department of Environmental
Services, City and County of Honolulu; Kenneth Nakamatsu,
Director, Department of Human Services, City and County of
Honolulu; and Mufi Hanneman, Mayor, City and County of Honolulu
Inereinafter, collectively, the City] appeals from the Septenber
22, 2003 judgment of the Circuit Court of the First Circuit, the
Honorable Sabrina $. NcKenna presiding, reversing in part and
affirming in part Decision No. 440 of the Hawai'i Labor Relations
Board [hereinafter, HLRB or the Board]. On appeal, the City
argues that the circuit court erred in: (1) finding that
Decision No. 440 ruled that the City had committed a prohibited
practice; (2) overturning or otherwise modifying the HLRB’s
findings of fact regarding evidence of frustration of purpose;
and (3) ruling that the frustration of purpose doctrine applied
by the HLRB was erroneous and contrary to the manifest purpose of
Hawai'i Revised Statutes (HRS) chapter 89, Additionally, after
*** NOT FOR PUBLICATION ***
SS
briefing was complete in the instant case, appellee United Public
Workers, AFSCME, Local 646, AFL-CIO {hereinafter, UPW or the
Union] moved for retention of oral argument in the instant case
Upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments presented we hold as follows:
Notwithstanding the circuit court's ruling that the
City was bound to “restore collection services for the city which
had been privatized and to expand services to businesses,
condominiums, and churches and compete with private haulers to
contract services for military bases and public schools," the
unchallenged language of Decision No. 440 bound the City to the
same contractual obligations when this court reversed the HLRB‘s
prior decision in United Public Workers, AFSCME, Local 646, AFL-
S10, v, Hanneman, 106 Hawai'i 359, 362-63, 105 P.3d 236, 239-40
(2005). Thus, in the instant case, “[the] result will not be
affected by the question[s] . . . raised on this appeal,
whichever way [they are] decided. In this eituation, any
consideration of the question will be academic. A question which
has become academic is moot. In re Kuwaye Bros., Inc., 50 Haw.
172, 274, 435 P.2d 21, 22-23 (1965); see also Ford Motor co, vz
. es , 305 U.S. 364, 375 (1939) (“Zt is
elementary that the court is not bound to determine questions
which have become academic."}. Therefore, this court lacks
jurisdiction to decide the merits of the instant case. Hong v.
*** NOT FOR PUBLICATION ***
Regents, Univ, of Hawai'i, 62 Haw, 391, 394-95, 616 P.2d
201, 203-04 (1980).
vPi's arguments for retention of oral argument are
based upon its perception of the complexity of and public
interest in the issues raised in the instant appeal. Because
this court lacks jurisdiction to address such issues, UPW's
argumenta aze inapposite. Accordingly,
IT 1S HEREBY ORDERED that UPW’s motion to retain oral
argument is denied, and the instant appeal 1s dismissed.
DATED: Honolulu, Hawai'i, April 4, 2005.
on the briefs: Giger
Herbert R. Takahashi (of
‘Takahashi, Nasui, Vasconcellos Lire Gpfilocravo—
E covert), for appellant
appellee-appellee Peeseest O97 pecan 07
seth
Harris and x
Paul ©. Teukyena,
Deputies Corporation Counsel, Panne. ange he
for respondents appellees-
appellants
|
a9652b80-9c51-4725-864a-09dc63047613 | Barnedo v. Dominguez | hawaii | Hawaii Supreme Court | LAWLIBRARY
No. 26394
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
JUNTE BARNEDO and JUAN BARNEDO, Plaintifts-Appelifkes,
Bl
ERLINDA DOMINGUEZ, doa THE LAW OFFICES OF ERLINDA 5 =
Defendant~Appellant, ¥ 7
48:6 wy Be 1009902
and
THOMAS KASTER; WILLIAM COPULOS? DAVID KUWAHARA:
UBNE DOES 1-10; DOE CORPORATIONS
ROE “NON-PROFIT” CORPORATIONS
Defendants.
RON R, ASHLOCK:
THOMAS WALSH; JOHN DOES 1-10;
1-10; DOE PARTNERSHIPS 1-10;
1-10; and ROE GOVERNMENTAL ENTITIES 1-10,
(NO. 26394; CIV. NO, 99-2847)
Plaintiffs-Appellees,
JUNIE BARNEDO and JUAN BARNEDO,
dba THE LAW OFFICES OF ERLINDA DOMINGUEZ,
ERLINDA DOMINGUEZ,
Defendant-Appellant,
and
THOMAS KASTER; WILLIAM COPULOS? DAVID KUWAHARA;
JANE DOES 1-10; DOE CORPORATIONS
ROE “NON-PROFIT” CORPORATIONS
Defendants.
RON R. ASHLOCK;
‘THOMAS WALSH; JOHN DOES 1-1
1-10; DOE PARTNERSHIPS 1-10)
1-10; and ROE GOVERNMENTAL ENTITIES 1-10,
(NO. 26695; CIV. NO, 99-2847)
JUNIE BARNEDO and JUAN BARNEDO, Plaintiffs-Appellees,
ERLINDA DOMINGUEZ, dba THE LAW OFFICES OF ERLINDA DOMINGUEZ,
Defendant-Appellant,
RON R. ASHLOCK; THOMAS KASTER; WILLIAM COPULOS; DAVID KUWAHARA;
THOMAS WALSH; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS
1-10; DOE PARTNERSHIPS 1-10; ROE “NON-PROFIT” CORPORATIONS
1-107 and ROE GOVERNMENTAL ENTITIES 1-10, Defendants
(NO. 27035; CIV. NO. 99-2847)
APPEALS FROM THE FIRST CIRCUIT COURT
(CIV. No. 99-2647)
(By: Moon, C.J., Levinson, Nakayama, Duffy, JJ., and
Circuit ‘Judge Lee in place of Acoba, J., recused)
The motion for reconsideration filed on October 19,
2006 by defendant-appeliant Erlinda Dominguez, requesting that
this court review its summary disposition order, filed on
September 29, 2006, is hereby denied,
DATED: Honolulu, Hawai'i, October 30, 2006.
Erlinda Dominguez,
defendant-appeliant,
PEO se, on the moti Gro
Ric Oye
Cane ont to»
oR 0 BY
|
31df13fa-4c6e-4696-bfc8-b54433a2bb94 | Thompson v. Kyo-Ya Company, Ltd. Concurring Opinion by J. Acoba, with whom J. Duffy joins [pdf]. S.Ct. Order Amending Concurring Opinion, filed 11/20/2006 [pdf]. | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘104 FOR PUBLICATION in WEST'S KAWAI'T REPORTS and PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
00 ---
LETIZIA THOMPSON, Plaintitf-Appellant,
{ 8
ve. “8:
Ba
KYO-YA COMPANY, LTD., dba SHERATON-MAUI HOTER|S’ = +
Defendant-Appellee, rE! =
BE Re
and Ee
eB Fo
3}
som ors oy ame sos 2.104 on peecsne 1, som
PROFIT ENTITIES 1
Defendants.
No. 26040
APPEAL FROM THE SECOND CIRCUIT COURT
(CIV. NO, 02-31-0208) "
NOVEMBER 8, 2006
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.z AND
> CONCURRING SEPARATELY, WITH WHOM DUFFY,.J., JOINS
ACOBA,
OPINION OF THE COURT BY LEVINSON, J,
, ‘The plaintiff-appellant Letizia Thompson appeals from
the August 18, 2003 judgment of the circuit court of the second
circuit, the Honorable Shackley F. Raffetto presiding, in favor
of the defendant-appellee Kyo-Ya Company, itd. dba Sheraton-Maui
and against Thompson.
ques that the circuit
(hereinafter, “the Sheraton’
On appeal, Thompson essentially
court erred in concluding that the Hawai'i Recreational Use
(RS) ch. $20 (1993 &
Hotel
Statute (HRUS), Hawai'i Revised Statutes
Supp. 1927), applied to her presence on the Sheraton’s grounds
and thereby immunized the hotel from her negligence claims.
FOR PUBLICATION in WEST'S WAWAI'T REFORTS and PACIFIC REPORTER ***
For the reasons discussed infza in section III, the
Appellants arguments are unavailing. Accordingly, this court
affirms the circuit court’s judgment.
1. BACKGROUND
A. Factual Backoround
‘The present matter arose out of an incident occurring
on the island of Maui on September 26, 2000, when Thompson, a
certified scuba instructor working as an independent contractor
for Pacific Dive, a business located in Lahaina, led three
students on a nighttime dive near the Sheraton at a location
known as Black Rock.’ Neither she nor her students had any
affiliation with the hotel as employees or guests, nor had they
any plans to visit the hotel during the evening in question.
The group entered the water north of the hotel and'dove south
around Black Rock, exiting the water on the beach in front of the
Sheraton. Upon exiting the water, the group, still fully élad in
their scuba equipment but carrying their masks, fins, and
snorkels, used the Hotel's unlit beach-access path to return to
their vehicles, which were parked in a lot on the hotel grounds
provided free of charge for menbers of the public using the
beach.
In her answer to interrogatories, Thompson described
what occurred nex
He were welking down the pathway te the parking cersce
srepped into a nole in the cement
te surrounding the 4
19} bacagrosnd ie crawn fren Thonpecn’ ewer
forsee ane ner Jenvary ¢, 2003 aepesitien.
cident are not cispoted,
‘46 FOR PUBLICATION in WEST'S HANAI'I REPORTS and PACIFIC REPORTER ++
pathway. 1 fell with full scubs gear on and my head
Rit the concrete.” I renenber the cracking sound of my
Skull. After that, 2 renenber being Unable to speak
B. Procedural Backeround
on April 30, 2002, Thompson filed a complaint against
the Sheraton and, on May 17, 2002, amended the complaint to
allege premises lisbility negligence claims. ' On June 30, 2003,
the Sheraton filed @ motion for summary judoment, asserting that,
as Thompson was not on the hotel's property for any commercial
purpose pertaining to the hotel, the HRUS immunized it from
Liability for her claims. In response, on July 23, 2003,
‘Thompson filed @ memorandum in opposition, arguing that the HRUS
did not apply to her claims because she did not have s+
recreational purpose for being on the property but rather was on
‘the land for vocational purposes as @ scuba-diving instructor.
Following a July 30, 2003 hearing, the circuit court granted the
Sheraton’s motion for summary judgment, issuing the following
oral conclusion cf law (COL): “The [clourt views this as coming
under HRS [§] $20-4(b) [*] and finds that because whatever
commercial interest ‘there was here . . . was related in no way to
On August 6,
the landowner . . . the statute applies . .
2003, the circuit court issued a written order granting the
RS § $20-6(6) (Supp. 1987) provides in relevent part:
An owner of land who is required or compelled to provide
access cr parking fer such access through or serces the cwner’s
Property because of state of county land use, sehing, er planning
te reach property vec fer recresticn purpcecs =.
i be’efferdes the same protection toch access, ncicding
1g for euch secess, sean owner cf land whe persite any
‘couuee thet cwner's property fcr recreational purposes
gee Antes section f11-8 Tne forth
sonstiet grantee Unger the BRUS)
the general
*1¥ FOR PUBLICATION sn WEST’S HAWAI'S REPORTS and PACIFIC REPORTER #4
Sheraton’s motion and, on August 18, 2003, iseued its: final
judgnent in favor of the Sheraton and against Thompson on all
claims. On August 21, 2003, Thompson filed a timely notice of
appeal with this court.
TT, STANDARDS OF REVIEW
A, Sonclusions of Law
“*A COL is not binding upen an
appellate court and se freely reviewable
for ite correctness."
2 nay Tt Hae O20,
2b Sr Paze 822, 26 (3993) (quot ing
TP Haw. 5, 115, B35 F.26 10, 26
[findings of fect) and that reflecte an
application of the correct rule of 1
Sill not be cverturned.”* Estate of
Gersang, 74 Haw. at e26-25, 681 Pod at
326 (qucting antec, Inc, 74 Haw. at 119,
835 Poze at 281. — ‘Wewever, 2 COL that
presents mixed Guestione of fact ano law
Es reviewed under the clearly erroneous
standara because the court’: conclusions
fare dependent upon the facts and
Civeanttances of each ingiviceal cage.”
Ha, st €25, #51 F026 at 326 \guotsns
fnfec, tne, 8, 638 Ped at
23)" interna n marks emitted) -
State v. furutani, 76 Hewes't 272, [160], 673 P.2d $2, [59]
(187
Allstate Ins. Co, v, Fonce, 105 Hawai'i 445, 453, 99 P.3d 96, 104
(2004
(Some brackets and internal citations omitted.) (Sone
bracketed material altered.)
Interpretation of statutes
‘The interpretation of 2 statute is @ question of law
ewable ge nove. State v. Arceo, 84 Hawai'i 1, 10, 926 F.2d
FOR PUBLICATION in WEST'S HAWAI'T REPORTS and PACIFIC REPORTER +++
843, 852 (1996).
Furthermore
ss. statutory construction is guided by
establishes! rules
when construing @ statute, our foremost
celigatien ie to escertain ane give effect
fo the intention of the legieisture, which
JE te'pe obtaines primarily fem the
Langvage contained in the statute itself.
And we must read statutory language in the
Content ef the entire statute and construe
fe"ih's manner consistent with ite
purpose.
Tihen there Se doubt, doubleress of
nesning, or indistinetiveness or
Gncergainey of an expression used in &
Statute, an smbiguity exists. ss
Yh construing en ambiguous statute,
nityne meaning of the ambiguous words may
be sought by examining the context, with
hich the ambiguose werde, phrases, and
Sentences nay De compared, in orger to
(certain their true meaning.” BRS
S*IISU) 111998) ]- Moreover, the courte
ay reeort to extrineic a:de. in
Setermining legisiative intent. One
Svenue ic the use of legislative history
fan interpretive tool
Grex {ys Admin, Dir, of the Court, 6¢ mawas'!'(138,7 148, 9:
Pres Te80-1 890 TUSSI] {footnote omitted
State v. Koch, 107 Hawai'i 215, 220, 112 P,3d 69, 74 (2008)
(quoting State v. Kaua, 102 Hawai'i 2, 7-8, 72 P.3d 473, 479-60
(2003)). Nevertheless, absent an absurd or unjust result, see
State v, Haugen, 104 Hawai'i 71, 77, @5 P.3d 178, 184 (2004),
this court is bound to give effect to the plain meaning of
unambiguous statutory language and may only resort to the use of
legislative history when interpreting an ambiguous statute.
ate v. via, 95 Hawai'i 465, 472, 24 F.3d 661, 668 (2002).
c. Summary Judanent
[This court] reviews
or denial of summary jucgne
the circuit court's grant
as Doe.
Islomnery judonent
tne pleadings, depeestions, &
spprepriate if
¢9 FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER
interrogatories, and adnissions on file,
together with the afficavite, if any, show
that there is no genuine issue as to any.
Raterial fact and that the moving perty is
fentitied te judgment ss 2 matter of ew
R fact is material if proof of that fact
would have the effect 6f establishing oF
Fefuting one of the ecrential elements of
o"cause of action or defense asserted by
the parties. The evidence must be viewed
In'the Light most favorable to the
non-meving party. In other words, (this
Court] must sien ali of the evidence and
the inferences drawn therefrom in the
Mgnt nest favorable to the party opposing
the notion
Hawat't cacy. red za Keke, $4 Hawas's 213, 221, 12
Feat, 9 (2000)) Teitetione and interns] quotation marke
omitted
Quexubin v. Thronas, 107 Hawai'i 48, 56, 109 P.3d 689, 697 (2005)
(qucting Durette v. Aloha Plastic Recveling, inc., 105 Hawas't
490, $01, 100 F.3d 60, 71 (2004): (internal citation omitted)
(some brackets in original).
TIT. PISCUSSION
On appeal, ‘Thompson asserts that the circuit court
(2) erred by implicitly concluding that, under Crichfield v.
Grand Wailea, 93 Hawai'i 477, 6 P.3¢ 349 (2000), absent evidence
of a conmercial purpose related to the landowner for entering the
hotel's property, any presence by Thompeon on the property was
presumptively recreational: and, hence, (2) erred in concluding
that the HRUS inmunized the Sheraton from Thonpscn’s negligence
claims. She contends thet, under Crichfield, the determining
factor as to whether an entrant is engaged in s “recreational
use” and, hence, barred by the HRUS from pureving negligence
claims against the landowner is the subjective intent of the
entrant, not the intent of the owner in holding open the land for
é
e+ FOR PUBLICATION in WEEE’ JAMAI'T REFORTS and PACIFIC REFORTER +
public use. She maintains that, inasmuch as her purpose at the
Sheraton that evening was “occupational or vocational” as a paid
diving instructor, she was not @ recreational user under the
HRS.
The Sheraton argues that, inasmuch as ‘Thompson concedes
that che had no comercial purpose with the hotel, end that,
under the plein language of HRS ch. $20, she was engagéd in 2
recreational activity -- regardless of her motivation for doing
her presence falls under the HRUS.?
A. The HRUS
1. Bmbiguity in the meaning of “recreaticnal_usex”
andr onal
It is undisputed that Thompson's injury.occurred on the
Sheraton’s land, and nowhere does Thompson argue that her
students were not engaged in a recreational activity. The crux
of the matter, therefore, is whether Thompson was on the
Sheraton’s property as a “recreational user” for “recreational
purposes” under the HRUS when she was engaged in 2 traditionally
uch access path as she and her
strictly speaking,
activity ef diving when she wae injured.
Feguired te provide beach access and free
students recur
engages in th
Nevertreless,
Parking a port ef the
Eoileing and use permits
therefore, the feet thet Thonpecn was.
dctusiiy Giving er veing the Sheraten’ «
Guelysite sether the FRUS defences ore
s+ OR PUBLICATION in WEST’ 8 HAWAI'T REFORTS and PACIFIC REPORTER #9
recreational activity' but with the subjective intent of doing so
for vocational or occupational reasons.
As with any statutory inguiry, we begin by analyzing
the plain language of HRS ch. $20.
2. The language of HRS ch. $20
HRS § 520-1 (1993) states that “[t]he purpose of this
chapter is to encourage ouners of land to make land and water
areas available to the public for recreational porposes by
Limiting their liability toward persons entering thereon for such
purposes.” To achieve that goal, HRS § 520-3 (Supp. 1997) limits
the duty of care owed by a landowner to menbers of the public
entering the land for recreational purpose:
Except ae specifically recognized by or provided in
[HRS §) £20°6{, 11993] (relating to duties af persons
entering the, proper i}\an owner of Land owes no
Guty of care fo keep the premises safe for entry or
Sse by others for rect’ forte giv
Sry swarming of » conse! structure,
oF activity on tuch premises te persons entering for
such purposes.
Furthermore, HRS § $20-4(2) (Supp. 1997) limits the liability of
an owner to any recreational entran
Except as specifically recognized by or provided
an (WRS'§) 520-6, | see gumca note §,) en owner of land
who either directly e incirectly invites cr permite
«Thompson concedes thet “scat diving can be recreational and is
similar te ther ‘recrestional” activities listed [in HRS § 520-2], €.9.,
fishing, seinming and water skiing.”
HES § 520-6 in fact exphesizes the duty of the entrant
Nothing in this chapter shail be construed to:
i) Greate a osty of care cr ground of liability for injury te persons
cr property
2} Relieve any persen ues snd ef ancther fer recreation
‘ch the person nay have in the
Io txercise cere in the person's vee of
or from the
Purposes from any cbt
+4 FOR PUBLICATION in WEST'S WAMAI'T REPORTS and PACIFIC REPORTER +1
without charge any person to use the property for
Feereational purposes does not
(i) Extend sny ssevrance thet the premises are
safe for any purpose
sa nthe legel status of
fe towhom a duty of
o we responsibility fer, oF incur
ianility fer, any injury’ te person or
property caused by an act of omission or
Eonaissicn of such persons; and
(4) Resume. responsibility for; oF incur
Llability for, any anjury'to person or
perecne whe enter the premises. in response
Fo an insured recreational user-(*)
Finally, by its plain language, HRS § 520-4(b), see supra note 2,
extends the liability limitations set forth in HRS § 520-4(a) to
any public access or parking area an owner is compélled by state
or county officials to provide for recreational entrants.
Nevertheless, while HRS § $20-4(b) establishes that the
protections of HRS § 520-4(a) apply equally to public access
areas such as the pathway in the present matter, it does not
elaborate on the nature or scope of the protections afforded by
HRS § 520-4 (a).
In Grichfield, this court summarized the overall effect
of the HRUS on land owner liability:
[the] HRUS confers upon the owner of the land inmunity
fron negligence Liebility to any person ~~ who ie
neither charges fer the right to be present nor a
heosequest |, see gunka note 6) -- injured on the Land
hile thet persen ie ueing the owner's land fora
Fecrestione! purpose. In cther words, if = person is
ingures on an cuner™ on was not on
}"aRUS does
not, by ite plein
tert lability.
RUS y three exceptions te the Limitations to
Landowner exty ane HRS §§ $20-3 and S206: 12) willfad
nelsciove {eilures te wai sdeuner (2| entrance te the lend being
premised cn payment of # fe iy claim snvelving @ hevseguest of the
Sener se plein ‘See BRS g's70-2| (1993). Thompson concedes that none of
exceptions opply in the present matter, Ae noted supra, the
proviees public perkine fer Reschecers #ree of cherge
“94 FOR PUBLICATION An WEST'S WAMAL'T REPORTS and PACIFIC REPORTER *
93 Hawai'i st 485, 6 P.3d at 357. (Internal quotations omitted.)
In most suits where @ HRUS defense has been invoked, the question
whether a party is a recreational user has been outcone-
dispositive. See, e.c., Howard v. United States, 161 F.3¢ 1064
(9th Cir. 1999); Palmer v, United States, 945 F.2d 1134 (9th Cir.
1951); Brown v, United States, 160 F. Supp. 2d 1132 (Ds Haw.
2001).
Resorting to the plain language of HRS ch. 520 for a
definition of recreational user is of limited value. HRS § 520-2
(Supp. 1997) defines “recreational user” to mean “any person who
4s on or about the premises that the owner of the land. .
indirectly . . . permits, without charge, entry onto the property
for recreational purposes.” “Recreational purpode,” in turn, ie
defined as including “but not limited to any of the following(:]
+ + fishing, swimming, boating, . . . and viewing or enjoying
: scenic or scientific sites.” HRS § 520-2.
As noted, the Sheraton contends thet Thompson, as @
person using the beach path te return to her car after diving,
falls within the plain language of HRS § $20-2 and, hence, that
the HRUS operates to ber her negligence cleims. The hotel
asserts that the mere fact that she engaged in the activity as
part of @ paid arrangement with her students “does not transform
the ‘recreational purpose’ [] to a ‘non-recreational’ one.”
Thompson, on the cther hand, insists that, under
Gxichtield, her subjective intent to enter the property for a
vocations) pursuit, even one unrelated to the landowner, is
sufficient te establish 2 non-recreational use of the land.
‘Thompson's argument is unavailing.
FOR PUBLICATION in WEST'S HAMAZ'S REPORTS and PACIFIC REPORTER ***
b. Crichtield
‘This court concluded in Crichfield that neither the
subjective intent of the landowner in holding open the property
nor the subjective intent of the entrant in visiting the’ property
were necessarily dispositive as to whether the plaintiff was a
recreational user for the purposes of the HRUS. 93 Hewai'i at
487-86, 6 P.3d at 359-60 (noting, “as a preliminary matter, ‘that
the subjective intent of an ouner of land is obviously relevant
to whether he or she has directly or indirectly invited or
permitted an injured party to use the land without charge for
recreational purpose” but concluding that the entrant's
subjective intent is also material)’ (internal quotations
omitted) -
In Crichfield, the plaintiffs alleged that they had
leilea’s grounds both to enjey, the gardens and
entered the Grand
for the comercial purpose of having lunch at ‘one of the hotel's
restaurants, 93 Hewai‘i at 481, 6 P.3d at 383. This court
concluded that the commercial purpose of having lunch at the
hotel was a non-recreational use of the property and, in vacating
the grant of summary judgnent in favor of the hotel, weighed the
intent of the landowner end the intent of the entrant and
concluded thet the plaintiffs’ allegations of @ conmerciel
purpose with the hotel raised 8 genuine issue of material fact.
93 Hawai's at 467-88, 6 P.3d at 389-€0. The result in Crichfield
fer an entrant qualifies ee =
Unites Staves Court of
1S in Howerg, 161 F.3d at
for Beane on the lene
Ty € Fe30 at 356-55.
Appeals for the Nii
YOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER ++4
was based on the legislative history underlying HRS ch, $20 that
expressly stated that the HRUS would not affect landowners’
common law liability toward business invitees of the landowner,
93 Hawai'i at 486, 6 P.3d at 360 (quoting Sen. Stand. Conm. Rep.
No. $34, in 1969 Senate Journal, at 1075), and a recognized need
to, prevent commercial establishments from exploiting the HRUS to
escape well-settled landowner duties to non-recreational
entrants, 93 Hawai'i at 489, € P. 34 at 362.
c. Palmer and Brown
Research reveals only two other cases that have
construed the terms “recreational purpose” and “recreational
user” as set out in the HRUS. In Palmer, 945 F.2d 1134, decided
before Crichfield, the United States Court of Appeals’ for the
Ninth Circuit affirmed a decision of the district court holding ©
that the HRUS shielded a military recreational facility from
negligence liability clains asserted by a grendfather who slipped
and fell at a swimming pool while watching over his
granddaughters. Id. at 1135. Palmer was only allowed access to
the pool area to watch his granddaughters as favor to his
stepdaughter and was not himself allowed in the pool, which was
restricted to military personnel and their dependents. Id. at
1136-37.
pool, he was not a recreational entrant and, hence, the HRUS did
almer argued that, because he was denied access to the
not shield the facility from his claims. Id. st 1136. The court
first considered the intent of the landowner, concluding thet,
because “[t]he United States has chosen to make the pool .
available for recreational use free of charge . . . (,therefore,]
the HRUS is applicable to the pool under the plain, unambiguous
1+ FOR PUBLICATION in WEST’ S HAWAI'I REPORTS and PACIFIC REPORTER +
language of the statute." Id, Addressing next Palmer’s
contentions that, because his subjective intent in being at the
pool was allegedly as @ pseudo-lifeguard and therefore not
recréational, the court reasoned:
Even assuming thet watching over one's own
grendchileren is not @ recreational activity, Palmer's
Services conferred no benefit upon the (recreational
facility]. He wes net there fer the [fscilities]"
Purposes, but rather to facilitate hie grandchildren’ s
Euthorszec use of the pool... He was allowed on
the property. for his granddaughters" recreational
purposes, which is the type of permissive use the HAUS
Seeks to encourage. Morever, Palmer's behavior was
Consistent with relaxation and recreation... We
Therefore conclude that he was engaged in
Fecreational activity for purposes of the HAUS. By
affording snmurity in this situation, the purpose of
the HRUE ce encourage landowners to make their .
Tecreationel property available for use is served.
dda at 1136-37. The Belmer court, therefore, considered the
intent of the landowner in holding the lané open for use, ‘the
subjective intent of the entrant, as well as the nature of the :
entrant's activity while on the property and whether the activity
conferred any benefit upon the landowner such that it would be
equitable to impose’a corresponding duty of care upon the
landowner.
‘The United States District Court for the District of
Hawai'i, in Brown, focused primarily on the subjective intent of
the entrant. The court concluded that 2 genuine issue of
material fact existed as to whether the plaintiff was on a
bicycle path on military land for recreational or non-
recreaticnal purposes, given the evidence that he was commuting
to work! on the day he swerved to avoid a runner and suffered
fe riding that cay wes
uncontested that the bicycle Brow
Conmuting, with marrere, 1igh
ae we
iy equipped £
spect
FOR PUBLICATION im WEST'S HAWAI'E REPORTS and PACIFIC REPORTER
injuries. 160 F, Supp. 2d at 1140. The Brown court concluded
that “(t]he Howard end Crichfield courts agree that the
‘subjective intent of an owner of lend is obviously relevant to
whether he or she has directly or indirectly invited or
permitted’ a person to use the land for recreational purposes,”
but nevertheless interpreted Crichfield te mean that testimeny by
the plaintiff that entry was for a non-recreational purpose wa
sufficient in itself to avoid sunmary judgment on a HRUS defens
180 F. Supp. 2¢ at 1139-40 (some internal quotation marks
omitted) (quoting Crichfield, 93 Hewai"i at 487, € P.3d at 359)
(citing Howard, 181 F.3d at 1072-73).
In Crichfield, this court noted that the “HRUS is
ambiguous . . . regarding the standpoint or perspective from
Which ‘recreationgl purpose’ is ascertained.” 93 Hawai't at 487,
ot 359. Palmer, Howard, Crichfield, and Brown struggled
“recreations! purpose” and “recreational user” under
6P
to define
the HRUS, but there remains indistinctiveness and uncertainty
surrounding the terms. An anbiguity exists in the present matter
as to whether an activity that (1) is unrelated to the owner of
‘the land and (2) generally falls within the definition of a
recreational activity as set forth in BRS § 520-2, see supra,
section III.A.1.a, can be transfermed from a recreational use
into @ non-recreational one solely by virtue of the plaintiff's
subjective reasons for engaging in the activity. Inasmuch as an
ambiguity existe, thie court may examine the legislative history
for guidance. Koch, 107 Hawai'i at 220, 112 F.3d at 74.
WAMAY' REFORTS and PACIFIC REPORTER #**
ec vat
1 cal ‘openin: ce
brs hi efi a7
‘access to Hawaii's scenic beauty.
In 1968, the Senate Committee on Lands and Natural
Resources, in reporting on Senate Bill 96, the origins of the
HRUS, stated that “(t]he purpose of this bill is to limit the
liability of landowners who permit persons to use their property
for recreational purposes without charge.” Sen. Stand. Comm.
Rep. No. $34, in 1969 Senate Journal, at 1075. The House
Committee on the Judiciary expressed similar sentiments. See
ise. Stand. Comm. Rep. No. 760, in 1969 House Journal, at 914.
‘The Senate committee, however, also noted that it had “amended
this bill by deleting section 6 which provided] that an owner
ino provides @ public right-of-way through his land to beach
areas shall maintain euch right-of-way, because it creates an
undue burden on landowners.” Sen. Stand. Com. Rep. Wo. $34, in
1969 Senate Journal, at 1075. The legislature in 1996 further
Limited the duties of the onners of properties like the Sheraton
that maintain beach right-of-ways. Effective June 12, 1996, the
legislature amended HRS § 520-4 by adding subsection (b), see
supra note 2, to ensure that properties required to provide
public access paths to recreational areas would benefit from the
seme protections afforded onners of the actual recreational lands
themselves.
In Crichfield, this court summarized the legislature's
intent in enacting and, in 1996, amending the HRUS:
enacted [the] HRUS to encourage
Skor"state'e rescorees Ey
Slebuisty te recrestional users
the recreations:
#4 FOR PUBLICATION in WES’ S MAWAI'S REPORSS and PACIFIC REPORTER **¥
Hayaiits resources. Indeed, in amending [the] RUS in
1596, the legislature reaffirmed its original intent!
= The legislature finds that
sing the pobls in
‘[asreational activities makes for
hegithier citizens snd ilousevervene to
‘niu Hawaii's patorel resources. 1
ISeS,uhen the leaislature enacted chapte:
420, Nawal Revised statute
1.
iccurace wider access to lands snd waters
sr hunting. fans ner :
‘Ackivitiee, “the intent was to make access
easier and‘ Tinit-lancowners” Tisesliny
93 Hawai'i at 488-89, 6 P.3d at 360-61 (emphasis in Crichfield)
(quoting 1996 Haw. Sess. L. Act 151, § 1 at 328). Nevertheless,
this court also noted that the “HRUS was not intended . . . to
have created out of whole cloth a universal defense available to
@ commercial establishment . . . against any and all liability
for personal injury” and that the general rule regarding
ional entrants remained intact:
landowner liability to non-recr:
Ye possesser of Lend, whe knows oF should have how
of sp unreasonable risk of hare posed to persens using
the’ land, sy 2 condition on the Landy eves ¢ duty to
Percore Using the land to take reasonable steps to
Eliminate the unressoneble risk, or warn the veers
agsine: it.”
93 Hawai'i at 489, 6 P.3d at 361 (quoting Richardson v, Sports
Shinko (Waikiki Corp.J, 76 Hawai'i 494, 503, 880 P.2d 169, 178
(1984).
‘This court should, therefore, approach the analysis of
whether 2 HRUS defense is available to the Sheraton in the
present matter by seeking an cutcome that “encourage(s] the
recreational use of our state’s rescurces by limiting landowners’
liability to recreational users and, thereby, promot [es] the use
and enjoyment of Hawaii's resources” by “encourag[ing] wider
access to lends and weters for . . . fishing and other
16
sie+ FOR PUBLICATION in WEST'S IAWAI'T REFORTS and PACIFIC REFORTER +¥
activities,” while respecting traditional duties owed by
landowners to non-recreaticnal entrants.
B. .
aa? suit ise Prot
Summary Judgment For The Sherston
‘Thonpson’s position would encourage land closures® and
fails to address the inequities that would result. By her oun
argument, Thompson directly benefitted economically from the
availability of the path, which enabled her to use the Black Rock
beach to guide recreational diving groups." Thompson’ s use of
the path that evening as 2 paid scuba diver would not have
occurred were it not for the recreational use of the ocean and
the beach by her clients. Yet Thompson would bite the hand that
feeds her by stripping the protections of the HRUS from the
landowner, contrary to the legislature’s intent to, encourage
Jendowners to allow entry to individuals wishing to “use .
ues, the
recreational enjoyment of the natural resources that are an
inextricable part of Hawaii's land end waters.” Cxichfield, 99
the owner’s land fer recreational purpose:
Hawai'i at 489, 6 P.3d at 361.
our research reveals only one case nationally that
considers an argument similar to Thompson's, and the court
being enact
would also arguably run counter to the legislature's purposes
ig HRE § £20615), see supra note Z, i.e.) extending BROS
ch paths ike the ene in question, #2 well ae the legislative
Rep. Now S34, sn 1969 Senate cournal, et
Ove, gee gugca tection I]1.A.2, thet requiring “an cnner who provides &
puriichticftttt-ney through hie lane te Beach ereas .- . [to] maintain such
CYimocis’ creetel! an undve burden on’ landewners|
capecs 6) er depceition that,
i nevid net trespese ch private land sn order to reach the dive
y she used the peach ccese Pa"
+4 FOR PUBLICATION in WEST'S HAWAI'I REPORTS and PACIFIC REPORTER +#¢
reached a result antithetical to Thompson's position.» In Hafford
va Great N. Nekoosa Corp., 687 2.26 967 (Me. 1996), the
plaintiff, @ tecreational outfitter supplying canceing and
camping enthusiasts on the Allagash Waterway in Maine, was
injured in an auto.accident on 2 private road owned by Great
Northern while transporting his staff to pick up his clients’
vehicles. Id, at 968. Hafford asserted that the recreational
use statute" did not apply to him because he was on the property
oon the court based its analysis on Me. Rev. Stet. Ann,
tit. 14, § 188A; a recreational gee statute #inilar te the HRS, which
provided in pertinent pare
unless the context indicates
SLlowing mesnings:
1. Definitions. Ae used in this sectier
otherwise, the following tere have the
B.” Ssecreational . . . activities” means recreational activities
conducted ovt=of-ccors, including, but not limited to, hunting,
Eishing, ... camping, enviromental eauestion anc research,
hiking, sight“seeing, . .. hang-gliding,. . . equine activities,
boating, sailing, canecing, rafting, biking, picnicking, swinning
or activities inveivins the harvesting or. gathering of forest,
Held of marine products, It includes entry of, velonteer
reintenance and inprovencnt of, use ef and passage ver preniges
Ih order to pursue there activities.
2. Limited duty.” An ower . . . or cccupent of premises does not have
2 guty of care U5 keep the prenises safe for entry cr Ges by ethers fer
Fecreationel « «.. activities or to give warning cf any hatargous
condition, use, structure cr activity on these Premisey te persone
entering for these porpeses
Si pernianive use. An concr”.'.”, oF occupant who gives persission to
ahother to pareve recresticnal ..', activities cn the prenises does net
thereby:
KX: extenc any atsurance thet the prenises ere safe for those
Bo"Fhate the person to whee permission is granted an invites or
Teentee to'whon e sbty"of core is cnecs oF
ei Shavune responsibility of incur Liability for any snsory to
Person or property caused by any act ef persone te whom the
Permission is granted
4. Lamitationa on section. This section does not init the Liabslity
thet would sherniee exist
TReSrer a wilifol er Relicious ta{iure to guard or to warn against
2 eangereut condition, eee, strectare Sy:
Fer an injury sofvered sp any cote where permission to purave
icefation
+4 FOR PUBLICATION Sn WEST'S HAWAI'T REPORTS and PACIFIC REFORTER +1
for vocational reasons. Id, at 969. The Maine Supreme Judicial”
Court affirmed the lower court's grant of summary judgment in
favor of Great Northern, concluding that
trial court correctly concluded that Hafferd’s
{revel over Great Northern's lend ws an action in
pursuit of the vse of the property fer recreation even
jh Hafford was pais by his cugtosers te provide
essing over Great
Fecreational pursuits; nis s ‘commercial
Outfitter coee not change the fact thet ne was using
the land fer recrestional purpose!
Id. As the Hafford court reasoned, an individual whose purpose
for being on the land is unrelated to the owner and is predicated
upon the land being available to the public for recreational use
at no charge by the landowner due to a recreational use statute
As a “recreational user” for the purposes of the statute. The
veasoning is sound: without such a rule, entrants who took
advantage of open'lands to participate in nature walks, scuba
4 (,. continued)
(2) The landowner or the landowner’ agent by the State; or
(2) the landowner or the lancouner’s egent for use of the
premises cn which the injory wee suffered, as long se the
Premises are not used prinarily for commercial recreational
Purposes and ss long ae the user has net been granted the
exclusive right to ake use of the prenises for recreational
sceivieiee; or
c._ Foran injury caused, by acts of persens to whom permission to
pursue any recreational activities was granted, to other
Persone £0 whom the persct
Sr occupant ef the premis
or to usen cf canger
5, No duty crested, Nothing in thir section creates # duty ef ca
giound of Lisslity for injury tos person or property.
The Maine statute does net contain an eguivelent to HRS § $20-4(b), see supe
Rete 2, which epplies the Jiabsiity limte eet forth in BRS § 820-4(e), ge
a access areas provided by cuners under state
fenvch ae HRS § £20-4(p) merely expance
Sfferded by HRS S £20410)
‘BUEL
ns + Shevertheles
the geograpsie reach of the provect
such © BRE § 220"4(8) (2 Substantially similar to Me. Rev.
st. 14, € 3884 ytical power cf the dafterd coure’s
speli€e te Thespsén's arguments rensine undininithes:
ae
FOR PUBLICATION Sn WEST'S HAWAI'T REPORTS and PACIFIC REPORTER ++4
dives, or archeological studies free of charge or benefit to the
landowner would be divided into two classes of plaintiffs -- the
bulk of the entrants would be barred from pursuing negligence
claims against the landowner, while a member of the croup paid to
guide or instruct the others would not -- despite the fact that,
fron the viewpoint of the landowner, the two classes were
indistinguishable. Such disparate treatment would be
inequitable, particularly inasmuch as the favored individual
benefits economically from the opening of the land, and such a
policy would, no doubt, discourage landowners from allowing any
entrants onto their lend for fear that one of then might be .
earning money from the visit. :
Rather, = more just result is reached under the
reasoning in Hafford, concluding that where the plaintif#’s
presence on the land is closely associated with the presence of
individuals whose purpose on the land is purely recreational, the
recreational purpose attaches to the plaintiff. We find the
reasoning in Hafford persuasive.
In the present case, in which Thompson's presence on
the land would not have occurred but for the recreational
activity undertaken by her students and in which she derived a
benefit from the policies underlying HRS
direct financial
ch. $20, to allow her to benefit financially while concluding
that the landowner is sfforded no protection by HRS ch. $20 would
be unfair and contrary to the intent of the leislature
ww
therefore, held that the circuit court correctly
concluded that Thonpscn’s status on the Sheraton’s property fel)
as a matter of law within the ambit of HRS ch. 520 as @
recreational user, inasmuch as she was engaged in “an activity in
20
0+ FOR PUBLICATION in WEEE’ WAWAS'S REFORES and PACIFIC REPORTER +
porsvit of the use of the property for recreationel purposes”
and, therefore, that the Sheraton was inmunized from her
negligence clains under the HRUS. We further hold that, inasmuch
as there were no genuine issues of material fact-in dispute, the
circuit court correctly entered summary judgment in favor of the
Sheraton and against Thompson. ;
Our holding accords with legislative Intent and with
this court's holding in Crichfield.” Moreover, unlike —
Geichtield, there is no danger in the present matter that this
ruling will allow owners to exploit the HRUS to avoid 1iability
for activities related to then or from which they benefit."
IV. CONCLUSION
In light ef the foregoing, this court affizms the
cizcust court’s August 16, 2003 judgment in favor of the Sheraton
and against Thompson
on the briefs: Gir
an 2. Mattoch and Daniel Blevins
Padiiey of the law Offices <
of Ian L. Mattoch for the Bauer C1 WAAAY 8
fleintifi-appetiont
Teitia tonpson
Brenda Morris Hoernig of the
Law Offices cf Dean E. Ochiai
for the defendant-appellee
Kyo-Ya Company, Ltd. dba
Sheraton-Maui Hotel
characterized “permitting public
Indeed, in Guichfield, the cou
fons porpeee. 98 Hewai's at 667,
the Beach ane cceen” ae & rec;
opinion ae to whether commercial purposes
je entivery cf possible non-recreational
te eveie appiicetion ef HRS ch, £20- In
{the pleinifie’ allegations @
chrents cows ebuse
Jes ue te thet nelaing.
|
c7b8c1d5-24bb-42cd-b8ab-f45be7b78b53 | State v. Kwak | hawaii | Hawaii Supreme Court | 219
No. 25494
a
wa
Hb
IN THE SUPREME COURT OF THE STATE OF HAWA:
STATE OF HAWAI'I, Respondent-Flaintitt-apperna)
TONY JIN KWAK, Petiticner-Defendant-Appellant
Se
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 01-1-2283 wz)
4
m
IN
"eld 9- zon suaz
Di x
(By: Moon, C.J., for the court)
Petitioner-defendant-appellant Tony Jim Kwak’ s
application for writ of certiorari, filed September 25, 2006, is
hereby rejected.
DATED: Honolulu, Hawai'l, November 6, 2006.
Peter Van Name Esser and FOR THE couRT:
Eishasd'7. Pufunate ee
petitlones-sefenaane!
Eppelients on tne Gps
a
application
Justice
Duffy, a,
syana, Acobs,
* considered by: Moon, .3.,
aaa
|
63612e90-0351-43df-87a2-393359d55f6c | Bringas v. Suemori | hawaii | Hawaii Supreme Court | No. 27196
11 dai soo
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
60:2
ane
A, EDUARDO G. BRINGAS, Petitioner
HONORABLE ALLENE K. SUEMORT, Family District Court Judge
of the Family Court of the First Circuit, Respondent
ORIGINAL PROCEEDING
(CIV. NO. 98-0276-01)
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the application for a writ of
mandamus filed by Petitioner A. Eduardo G. Bringas, the papers in
support, and the records and files herein, it appears: (1)
Petitioner has an appeal pending from the underlying orders and
judgments being challenged in this original proceeding: and (2) a
weit of mandamus is not intended to take the place of an appeal.
See Straub Clinic & Hospital v. Kochi, 81 Hawai'i 410, 414, 917
P.2d 1284, 1288 (1996). Therefore,
IT IS HEREBY ORDERED that the application for a writ of
mandanus is denied without prejudice to any remedy Petitioner may
have in his pending appeal and without prejudice to Petitioner
raising any relevant point of error in his pending appeal.
DATED: Honolulu, Hawai'i, April 11, 2005.
for petitioner on G
AMP Lana
Benue Orauaeyanee
~~
Vo Dabs Oh +
|
5ca036a8-2a31-4802-bb74-83de14b04655 | Hoff v. Nakamura | hawaii | Hawaii Supreme Court | no. 28178
IN THE SUPREME COURT OF THE STATE OF RAWAT'T
SO
JOHN HOFF, Plaintitt =
vs. SF
Eom OF
PETER NAKAMURA, County Clerk for Ss c
the county of Kaua'i, Defendant 5
8
ORIGINAL PROCEEDING
a FACT, CONCLUSIONS 0}
(By: Moon, C.J., Levinson, Nakayama, Acoba and Duffy, JJ.)
We have considered Plaintiff John Hoff’s' Election
Complaint, Defendant Peter Nakamura’s motion to dismiss and the
affidavit and exhibits appended to each. Having heard this
matter without oral argument and in accordance with HRS § 11-
273.5(b) (Supp. 2005) (requiring the supreme court to “give
judgment fully stating all findings of fact and of law” and
“decide what candidate was nominated or elected”), we set forth
the following findings of fact and conclusions of law and enter
the following judgment.
EINDINGS OF FACT
1. Plaintiff John Hoff was one of five candidates for
the office of mayor of the County of Kaua'i in the September 23,
2006 Kaua'i county primary election.
2. The primary election results for the office of
mayor of County of Kaua'i were: (1) Bryan J. Baptiste: 8,173
votes; (2) Jesse Fukushima: 4,725 votes; (3) John R. Hoff: 1,984
votes: (4) Bruce J. Pleas: 1,083 votes; and (4) Janee M. Taylor:
377 votes.
on September 26, 2006, defendant county clerk Peter
Nakamura determined that candidate Bryan J. Baptiste received a
majority of the votes cast for the office of mayor.
on September 26, 2006, defendant Nakamura declared
that candidate Baptiste was elected mayor in the September 23,
2006 primary election in accordance with Section 1.03.B.1 of the
Charter of the County of Kaua‘l.
5. On September 29, 2006, plaintiff Hoff filed a
complaint contesting the September 23, 2006 Kaua'i county primary
election for mayor.
6. The complaint contests the election results for
mayor based on plaintiff Hoff’s allegations of the possibility of
two different margins of error in the primary vote tabulation,
the possibility of inconsistent procedures in processing absentee
and walk-in ballots, the possibility of the erroneous addition of
794 votes to candidate Baptiste’s vote count, the absence of
certain official observers at the primary election, the failure
of precinct officials to remind voters to vote both sides of the
ballot, voter difficulties with electronic voting machines, the
inability of voters to vote for “none” of the mayoral candidates
and the failure of county attorney Lani Nakazawa to recuse
herself from the mayoral election decision.
7, Plaintiff Hoff seeks judgment from the suprene
court directing an audit of the primary election results for
mayor and a declaration that Bryan J. Baptiste was not elected
mayor in the September 23, 2006 county primary election.
8. Defendant Nakamura filed a motion to dismiss the
complaint for failure to state claims upon which relief can be
granted.
CONCLUSIONS OF Lat
1, When reviewing a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted, the
court must accept plaintiff’s allegations as true and view then
in the light most favorable to the plaintiff; dismissal is proper
only if it appears beyond doubt that the plaintiff can prove no
set of facts in support of his or her claim that would entitle
him or her to relief. Wo: jealth
Welfare Trust Fund v, Bosque, 110 Hawai'i 318, 321, 132 P.3d
1229, 1232 (2006).
2. The court's consideration of matters outside the
pleadings converts a motion to dismiss into one for summary
judgment. Fovtik v, Chandler, 88 Hawai‘l 307, 313, 966 P.2d 619,
625 (1998). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law. Estate of Dos v. Paul,
Revere Ins, Group, 86 Hawai'i 262, 269-270, 948 P.2d 1103, 1110-
121 (1997).
3. A complaint challenging the results of a primary
election pursuant to HRS § 11-172 fails to state a claim unless
the plaintiff demonstrates errors, mistakes or irregularities
that would change the outcome of the election. Akaka v. Yoshina,
84 Hawai'i 363, 387, 935 P.2d 98, 102 (1997); Elkins v. Arivoshi,
56 Haw. 47, 48, 527 P.2d 236, 237 (1974); Funakoshi v. Kina, 65
Haw. 312, 317, 651 P.2d 912, 915 (1982).
A plaintiff challenging a primary election must
show that he or she has actual information of mistakes or errors
sufficient to change the result. Akaka v. Yoshina, 84 Hawai'i at
388, 935 P.2d at 103; Funakoshi v, King, 65 Haw. at 316-317, 651
P.2d at 915.
5. It is not sufficient for a plaintiff challenging a
primary election to point to a poorly run and inadequately
room for abuse or
supervised election process that evinc
possibilities of fraud. An election contest cannot be based upon
mere belief or indefinite information. Akaka v. Yoshina, 64
Hawai'i at 387-388, 935 P.2d at 102-103.
6. The possible irregularities in the processing and
tabulation of the September 23, 2006 Kaua's county primary
election votes do not amount to actual information of mistakes or
errors sufficient to the change the election results for mayor.
7, The matters concerning primary election voting and
the county attorney's participation in the primary election
decision do not demonstrate that the results of the September 23,
2006 Kaua'i county primary election for mayor would have been
changed.
8. In a primary election challenge, HRS § 11-173.5(b)
(Supp. 2005) authorizes the supreme court to “decide what
candidate was nominated or elected.”
9. The remedy provided by HRS § 11-173.5(b) (Supp.
2005) of having the court decide which candidate was nominated or
elected is the only remedy that can be given for primary election
irregularities. Funakoshi vs King, 65 Haw. at 316, 651 P.2d at
ous.
10. An audit of the September 23, 2006 primary
election for mayor of the County of Kaua'i is not a remedy
authorized by HRS § 11-173.5(b) (Supp. 2005).
11, There is no genuine issue of material fact related
to plaintiff Hoff"s primary election contest.
Zupavenr
Based upon the foregoing findings of fact and
conclusions of law, judgment is entered in favor of defendant
Peter Nakamura, County Clerk for the County of Kaua'i. Bryan J.
Baptiste was elected mayor of the County of Kaua'i in the
September 23, 2006 county primary election.
The clerk of the supreme court shall forthwith serve a
certified copy of this judgment on the county clerk for the
County of Kaua'i in accordance with HRS § 11-173.5(b) (Supp.
2005).
DATED: Honolulu, Hawai'i, October 10, 2006.
John Hoff, Gp
plaintiff’ pro se
on the complaint BoibEirecee.
Christiane 1. Nakes-Tresier
Christiane TN Pustu O. ears
for defendant Peter Nakamura 2. ~
on the motion to dismiss Y
|
405a04f0-a8c9-4260-b811-bb0cfeb344c8 | Cornelio v. State | hawaii | Hawaii Supreme Court | LAW LIBRARY
NO. 27395
3
Ia THE SUPREME Coun? oP ‘He snace oF anual
a3
‘0:8 WY 9~ AON souz
WILLIAM A. CORNELIO, IIr, Petitioner-appellai
STATE OF HAWAI'I, Respondent -Appellee.
APPEAL FROM THE SECOND CIRCUIT COURT
(SPP NO. 05-1-0014)
(CR. NO, 94-0590) .
‘SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Petitioner/defendant-appellant William A, Cornelio,
III, appearing pro ge, appeals from the Circuit Court of the
cond
Second Circuit’s' June 21, 2005 order denying Cornelio’s
of Penal Procedure (HRPP) Rule 40 petition for
Hawai'i Rul
post-conviction relief (hereinafter, Petition 11]. in Petition
rted that the trial court presiding
IE, Cornelio essentially a:
over his jury trial failed to instruct the jury that, in order to
convict him of multiple offenses, the jury was required to find
that Cornelio acted with “separate and distinct intents.
on appeal, Cornelio contends that the circuit court
erred in denying Petition IT without affording him a hearing
inasmich as he had stated a colorable claim for relief.
4 the Honorable shackley 7. Raffetco presided over the underlying
proceedings.
specifically, Cornelio argues that (1) the trial court failed to
give a “separate and distinct intents” instruction to the jury
and (2) he was denied effective assistance of trial and appellate
counsel because (a) trial counsel failed to request the foregoing
jury instruction and (b) appellate counsel failed to challenge on
@ixect appeal the trial court’s failure to instruct the jury.
upon carefully reviewing the record and the briefs
submitted and having given due consideration to the arguments
advanced and the issues raised by the parties, we resolve the
parties’ contentions as follows. .
(2) Cornelio asserts that the “trial court should have
instructed the jury that[,] in order to convict [Cornelio] of
multiple offenses[,] the jury was required to find that
(Cornelio) acted with ‘seperate [sic] and distinct’ intenta./*
HRPP Rule 40(a) (3) provides:
(3) mapeuicasrLiTy. gule 40 proceedings shall not be
‘the issues sought tobe raised have been previously ruled
pon or were waived. xcept for a claim of illegal
sstandingly failed to raise i could hav
inised before the trial, at the trial, on ampeal, ina
habeas corpus proceeding oF any other proceeding actually
conducted,
his rule, ind the petitioner is unable to prove the
existence of extraordinary circumstances to. justify the
petitioner's failure to raise the issue, There is a
(capital letters in original.) (Emphases added.)
jue whether the trial court
In the instant case, the i
should have instructed the jury on “separate and distinct
intents” ‘could have been raised” at the trial, on appeal, or in
a prior proceeding actually initiated under HRPP Rule 40, i.e,
the proceeding on Cornelio’s first HRPP Rule 40 petition for
post-conviction relief [hereinafter, Petition I], Inasmich ag
1@ whether the trial court
Cornelio failed (1) to raise the i
should have instructed the jury on “separate and distinct
intents” at the trial, on appeal, or in Petition I, (2) to
present any facts to rebut the presumption that the failure to
raise that issue was made knowingly and understandingly, and
(3) to prove the existence of extraordinary circumstances to
justify hie failure to raise the issue, Cornelio has waived the
issue for purposes of Petition II. See Stanley v, State, .76
Hawai'i 446, 451, 879 P.2d $51, $86 (1994).
(2) Cornelio next asserts that he was denied effective
assistance of trial and appellate counsel. With respect to the
issue of ineffective assistance of trial counsel, however,
Cornelio failed to specify this allegation as a ground for relief
in Petition IT. Although “failure to raise a(n HRPP] Rule 40
issue specifically in the petition does not pex se defeat the
possibility of obtaining relief on that ground in the Rule 40
proceeding,” 2 pro se petitioner “still must alert the court to
the general issue that is the basis of his claim of ineffective
assistance of counsel.” Stanley, 76 Hawai'i at 450-51, 679 P.24
at 555-56 (citing Bryant v. State, 6 Haw. App. 331, 335, 720 P.2d
1015, 1019 (1986), disapproved on other grounds by Briones v.
State, 74 Haw. 442, 848 P.2d 966 (1993)). Here, however,
Cornelio did not alert the circuit court to the general issue
that is the basis of his claim of ineffective assistance of trial
counsel. In Petition IT, there was no mention of the allegation
that Cornelio now asserte on appeal, ive., that he was denied
effective assistance of trial counsel. Consequently,
respondent /plaintiff-appellee State of Hawai'i (the prosecution)
could not respond, and the circuit court never considered the
issue. Because the “general rule ie that an issue which was not
raised in the [circuit] court will not be considered on appeal,”
Foo v, State, 106 Hawai'i 102, 124, 102 P.3d 346, 358 (2004)
(internal quotation marks, brackets, and citation dmitted), we
need not address Cornelio’s claim of ineffective assiatance of
trial counsel. See Stanley, 76 Hawai'i at 451, 879 P.2d at 556
(refusing to address the issue of erroneous exclusion of jury
instructions when raised for the first time when! appealing the
denial of the petitioner's HRPP Rule 40 petition) .
Nonetheless, even assuming arguendo that Cornelio
valerted" the circuit court to the general issue of ineffective
assistance of trial counsel, such issue would have been waived.
Although this court has previously stated that,
(w)nere [the] petitioner has been represented by the sane
Senne of tilal counsel's pertorsance cecirs Because no
Fealistic opportunity existed to raise the issue on direct
appeal [1
Briones, 74 Haw. at 459, 646 P.2d at 975 (citations omitted), in
this case, Cornelio was not represented by the sane counsel at
trial and on direct appeal. In fact, Keith Tanaka, Cornelio's
trial counsel, filed a motion to withdraw as counsel, which the
trial court subsequently granted, and Anthony Vierra, Cornelio’s
sentencing counsel, filed a motion to withdraw as counsel
precisely because Cornelio indicated an interest to raise a claim
of ineffective assistance of trial counsel. Consequently, Vickie
Russell was appointed as Cornelio’s counsel for his direct
appeal, Thus, the issue sought to be raised in the instant
appeal, i.e., whether trial counsel was ineffective in failing to
request the “separate and distinct intents" jury instruction or
failing to object to the trial court’s failure to give such an
instruction, could have been raised on direct appeal. Because
Cornelio failed to present any facts to rebut the presumption
that the failure to raise that issue was made knowingly and
understandingly, and Cornelio has failed to prove the existence
of extraordinary circumstances to justify his failure to raise
the issue, Cornelio has waived the issue of ineffective
assistance of trial counsel for purposes of Petition II. see
sta , 105 Hawai'i 74, 78, 93 P.34 1261, 1285 (App. 2004)
(concluding that the petitioner’s claim of ineffective assistance
of trial counsel was waived for purposes of his HRPP Rule 40
petition because he did not raise such a claim in his direct
appeal and he was not represented by the sane counsel at trial
and on direct appeal) .
With respect to Cornelio’s claim of ineffective
assistance of appellate counsel, such claim is Likewise waived.
Cornelio had a “realistic opportunity” to raise his claim of
ineffective assistance of appellate counsel in Petition I.
Although Cornelio was represented by, Vickie Russell on the appeal.
of Petition I, Cornelio filed Petition I pro se and appeared pro
gg throughout the entire circuit court proceedings. Thus
Russell's appointment as Petition I appellate counsel did not
nt his
deprive Cornelio of a realistic opportunity to pr
ineffective assistance of appellate counsel claim in Petition 1.
Inasmuch as Cornelio failed to present any facts to rebut the
Presumption that the failure to raise the issue whether appellaté
counsel was ineffective was made knowingly and understandingly,
and Cornelio has failed to prove the existence of extraordinary
circumstances to justify his failure to raise the issue, Cornelio
has waived the issue of ineffective assistance of appellate
counsel for purposes of Petition II.
Thus, based on the foregoing, Cornelio has waived the
issues sought to be raised in Petition II. Accordingly, we hold
that the circuit court did not err in dismissing Cornelio’s
Petition II pursuant to HRPP Rule 40(g) (2). Therefore,
IT IS HEREBY ORDERED that the circuit court’s June 21,
2005 order denying Cornelio’s Petition II is affirmed.
DATED: Honolulu, Hawai'i, November 6, 2006.
on the briefs:
William A. Cornelio, r1r, Z& a :
petiticner-appellant,
appearing pro se eater Cr asl ener
Peter A. Hanano, vn
Deputy Prosecuting Attorney, Gorn t. Didlge h ,
for respondent -appellee
|
6d90e35e-8487-40d8-b2b5-863e763eee29 | Thomas v. The Law Office of J. T. Thomas | hawaii | Hawaii Supreme Court | LAW LIBAARY
No. 25795
|
{nt THE SUPREME COURT OP THE STATE OP HAWAIE!?
nz 10 9002
oad
86:3 Wi
DONNA F, THOMAS, Petitioner/Claimant-Appel lant.
vs. al
THE LAW OFFICE OF J. T. THOMAS AND FIRST INSURANCE
COMPANY OF HANAT'I, LTD., Respondent /smployer-Appellee
and Respondent/Insurance Carrier-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO. AB-2001-219(™) )
(7-88-0492) (HIELO) )
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORART
(By: Moon, C.J., for the court
Petitioner/claimant-appellant Donna P, ‘Thomas's
application for writ of certiorari, filed September 11, 2006, is
hereby rejected.
DATED: Honolulu, Hawai'i, October 24, 2006.
Charlee J. Ferrera, for FOR THE COUR
petitionar/elaimant-
appellant, on the
application
+ Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, ov.
|
aadb1553-c342-4715-a4b8-11d71497ed8a | Custer v. Administrative Director of the Courts | hawaii | Hawaii Supreme Court | LAW LIBRARY
+ NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
No. 26192
IN THE SUPREME COURT OF THE STATE OF HAWAI‘Z6] z
=F 3
x
CURTIS C. CUSTER, Petitioner-Appellant,
vs. &
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF sBWAI'T,|
‘Respondent-Appellee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(JRO3-0019; Original Case No. 03-00586)
SUMMARY DISPOSITION ORDER
Noon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Petitioner-Appellant Curtis C. Custer ("Custer”)
appeals from the Judgment on Appeal of the District Court of the
First Circuit! (“district court") filed on October 10, 2003,
which affirmed Respondent-Appellee Administrative Director of the
Courts’ one-year revocation of Custer’s driver’s license.
on appeal, Custer argues that the district court erred
by: (1) affirming the license revocation decision of the
Administrative Driver's License Revocation Office (“ADLRO”),
because ADLRO lacked jurisdiction over Custer due to the
arresting officer's disnissal of the license revocation
proceeding against him; (2) holding that Custer had not been
“denied both his [constitutional] rights to a hearing on the
ADLRO access restrictions (apparently requiring that all
prospective attendees, including the hearing respondent and his
counsel, sign in and present identification in order to attend a
+ the Honorable Fa" auuga To'oto’o presided
oan
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
ADLRO hearing) and his rights to a public hearing... (J"? (3)
holding that Custer had not been denied due process of law
despite the fact that ADLRO review hearings from an ADLRO licens
revocations are conducted (a) in de nove fashion, and (b) without
following any established procedure, in violation of the Hawai‘
and U.S. Constitutions and Hawai‘ Revised Statutes (“HRS”) 55
2918-31 through 2918-50 (administrative license revocation
process); (4) holding that the °HPD-3968” implied consent form
(for alcohol content or drug testing) was not fatally defective
in (a) failing to inform custer that he had a legal right to
withdraw his consent to alcohol or drug testing, (b) failing to
fully inform Custer of the necessary requirements for. ADLRO to
revoke a driver's license, where an alcohol or drug test is
refused, and (c) failing to inform Custer that a revocation of
his driver's License would also deprive him of the ability to use
a moped or a watercraft; (5) holding that HRS $ 291E-34(a) (2)
(Supp. 2001)? (requiring that a notice of administrative
revocation of a driver’s license explain in “clear language” the
distinction between an administrative revocation and a criminal
+ HRS § 291E-34(a) (2) (Supp. 2002) provides in pertinent part
(a) The notice of
minimus and in el
relat
udninistrative revocation shall provide, at a
Language, the following genersi information
ing to administrative revocation:
(2) An explanation of the distinction between adninistrative
Fevocation and a suspension or revocation imposed under
section 251B-81 of 2918-61-5-
\OT_FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
License suspension or revocation pursuant to HRS § 291E-61 (Supp.
2003)? (which prohibits operating a vehicle under the influence
and (6) failing to
of an intoxicant)) had not been violate
reverse the ADLRO hearing officer’s ruling on account of the
hearing officer’s improper citation of unpublished district court
opinions arising from ADLRO appeals.
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 all
six of Custer’s arguments in the instant appeal have been :
previously addressed by this court and found to be without
merit. As such, the district court's Judgment on Appeal is
2 uRS § 2918-61 (Supp. 2003) was in effect at the tine of Custer’s
March 7, 2003 arrest
+ Ses suse,
‘As to Argunent No. 1 in the instant appeal: See Guster v. Admin. Dir, of the
Gouree, 106 Hawai'i 350, 358, 120 P.3d 249, 257 (2008)
[As to Argument No. 2 in the instant appeal: See Ereitas v. Admin, Dir, of the
Courte, 108 Hawal‘l 31, 40, 116 P.34 €73, 682 (2008)
83,
As to Argument No. 3 in the instant appeal: See id. at 44-45, 116 P.3d at
Dunaway v. Adsin, Dir. of the courts,
686-87); gee also Dunaway ¥. sits, 108 Hawai'i at 7
117 e.34 Tos, Ine (2008)
‘As to Argunent No. 4 in the instant appeal: at 85-87, 127 F.3d at
asco peal: See id.
As to Argument No, $ in the instant appeal: See Ad. at 87, 117 P.3¢ at 118.
As to Argument No, 6 in the instant appeal: See Freitas, 108 Hawai'i at 46-
49, 116 Besa at 688-89,
As to Arguments Nos. 2 through € of the instant appeal, see alee Guster, 108
Hawai'i at 353-54, 120 P.3d at 252-53.
* NOT FOR PUBLICATION IN WEST'S HAWAII REFORTS AND PACIFIC REPORTER *
affirmed. Therefore,
IT 18 HEREBY ORDERED that the Judgment on Appeal of the
district court is affirmed.
DATED: Honolulu, Hawai'i, October 31, 2006.
on the briefs:
Earle A. Partington Wi
for Petitioner-Appellant .
Curtis C. Custer StiaAevise
Girard 0. Lau,
Deputy Attorney General, Preter Cob amcony Qrrn.
for Respondent -Appellee
Administrative Director of
the Courts, State of Hawai'i rN
Gems, Dida tr
|
0f2f4ac2-2c1b-44e9-9ed5-87923302efca | Berbig v. Workcomp Hawaii Insurance Company, Inc. | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26003
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
ARTHUR J. BERBIG, Plaintif£-Appellant-Petitioner,
2
7 £8
ze 8
WORKCOMP HAWAII INSURANCE COMPANY, INC., 22 = =
Plaintitt-Intervenor-Appellee-Respondentseig =
EP a
ve. Be =F oO
=
é
JARROD A, JENSEN, JOHN DOES 1-50, et ai,
Defendant ~hppellee-Respondent
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 01-1-0659)
Wakayama, J., for the court")
Plaintiff-Appellant-Petitioner’s application for writ
of certiorari filed on September 28, 2006, is hereby rejected.
2006.
Honolulu, Hawai'i, October 17,
FOR THE COURT:
Duan OS reuceugaree
Associate Justice
DATED:
William. H. Lawson
for plaintiff-appellee-
petitioner on the
application
and batty, 39.
‘considered by: Moen, C.J., Levinson, Nekayena, Acoba,
|
ef974cff-c485-4b0b-a574-ba4b288911d5 | Miyashiro v. Masuoka | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 20193
IN THE SUPREME COURT OF THE STATE OF HAWAT'!
ORIGINAL PROCEEDING
Court of Appeals Judge Nakamura, in place of Duffy, J., recused,
discretion, even when the judge has acted erroneously, unless the
judge has exceeded his or her jurisdiction, has committed a
flagrant and manifest abuse of discretion, or has refused to act
on a subject properly before the court under circumstances in
which it has a legal duty to act.). Therefore,
IT IS HEREBY ORDERED that the petition for a writ of
mandanus is denied.
DATED: Honolulu, Hawai'i, November 1, 2006.
Soe
BAB
Pelalirveriyare
Leu A, Wahserrinn
I dissent and would grant the petition.
Bah
David J. Gierlach,
for petitioner
|
2215791f-566e-4aed-9052-647f1fcd94a8 | Tamashiro v. Department of Human Services, State of Hawaii. Dissenting Opinion by J. Pollack, with whom J. Acoba joins [pdf]. | hawaii | Hawaii Supreme Court | ** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
ME COURT OF THE STATE OF HAWAI'I
THE st
00 -
MYLES TANASHIRO, WARREN TOYAWA, HEATHER FARMER,
FILO 7U, JEANETTE TU, LYNN MISAKI, CLYDE OTA,
MIRIAN NOMURA, and YOSHIKO NISHIMURA
aintiffs-Appellees/Cross-Appellarits
DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAI'I
STEPHEN TEETER, in his capacity as Business Manager
for Ho'Oponc, JOE CORDOVA, in his capacity ae
Administrator of the Division of Vocational Rehabilitation,
State of Hawai'i, Department of Human Services; .
DAVE EVELAND, in his capacity as Administrator of the
Services to the Blind Branch of the State of Hawa!’
Department of Human Services; and LILLIAN B. KOLLER,
in her capacity ae Director of the State of
Hawas'i, Department of Human Services,’
Defendante-Appellanta/Cross-Appelleee,
and
CITY AND COUNTY OF HONOLULU, Defendant.
No. 24552
APPEAL FROM THE FIRST CIRCUIT COURT £
(Civ. NO. 96-3022) E
3 c
OCTOBER 27, 2006 . nt
MOON, C.J., NAKAYAMA, J., AND CIRCUIT JUDGE WATANABE,
IN PLACE OF DUFFY, 3., RECUSED; CIRCUIT JUDGE POLLACK,
IN PLACE OF LEVINSON, J., RECUSED, DISSENTING,
‘WITH WHOM ACOBA, J., JOINS
Appellate Procedure Rule 43(c) (2004),
parties
» Pursuant to Hawai"! Rules
Stephen Teeter, Joe Corsovs, ane Lillian 8. Koller were subsrisueed
to the instant appeal.
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ON OFTHE COURT BY MOON, C.
Thie case arises from the alleged failure of
defendante-appel lante/cross-appellees Department, of Human
Lillian B. Koller,
Services (DHS), State of Hawai'i (the stat
nd, and Stephen Teeter* [hereinatter,
see Cordova, Dave Eve
collectively, the State defendants) te enforce Hawai"! Revised
Statutes (HRS) $$ 102-14 (Supp. 2008) and 347-12.5 (2993), quoted
Anfra, and the inplenenting regulation, Hawai": Administrative
1, qucted intra, (hereinafter,
Rules (HAR) § 17-402
collectively, the Hawai's Randolph-Shepparé Act (the Hawad"s RSA)]
ae against defendant City and County of Honolulu (the City).
Briefly stated, the Hawai'i RSA sa nodeled after the federal
Randolph-Sheppard Vending Stand Act, discussed intra, which
grants priority to blind and vieually handicapped individuals who
desire to operate vending facilities on federal property. The
Hawai'i RSA applies to state and county properties. The city
allegedly (1) did not give priority to visually handicapped
individuals licensed by DHS to operate vending facilities
(hereinafter, the blind vendors] in its public buildings and
(2) did not transfer to the State defendants the commissions
‘The named individuals are sued in their official capacities of
exploysent with the State. Lillian B. Koller is the Director ef DHS) Joe
Ccbdcve ip the Aéministrator of DhS'e Division of Vocational Renabilitation
Dis’ Services to the Blind Branch; and
fn the branch of
Bave Eveland is the Administrator
Stephen Teeter ie the fusiness Manager for the #14)
known ae "Ho'opone.” ee supra rote 4.
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vending machine operation, both of
cted from the City's o
contravention of the Hawai'i RSA.
which were allegedly i
Plaintiffs-sppellees/croes- appellants Myles Tamashiro,
mer, Filo Tu, Jeanette Tu, Lynn Misaki,
Warren Toyama, Heather
Clyde Ota, Miriam Onomura, and Yoshike Niehihara hereinafter,
collectively, the plaintiffs], who are licensed blind vendors,
sought declaratory, monetary, and equitable relief (including
injunctive relief) against the state defendants and the City’ for
vely, enforce and comply with
their alleged failure to,
the requirenents of the Hawai"! RSA. The plaintstfs maintained
that the State defendante were required to ensure that
(2) vending machine incone generated from state and county
operations be paid into the Randolph-Sheppard Revolving Account
Iereinatter, the RSR Account]; and (2) those funds were reserved
for the use and benefit of the State's blind vendors,
The State defendants appealed, and the plaintiffs cross
appealed, from the August 22, 2001 final judgment of the Circuit
Court of the First Circuit, the Honorable Eden B. Hifo presiding,
finding in favor of the plaintiffs and against the state
defendants. The trial court awarded the plaintiffs, inter alia,
money damages in the anount of approximately $3.67 million.
The State defendante, on appeal, and the plaintiffs, on
their cross appeal, challenged various pre-trial and post-
° Ag discussed infra, the plaintifte settled with the City: therefore,
the city ie not # party £0 the inetent appea
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judgment rulinge made by the trial court. However, inasmuch
19, we need not
we hold that subject matter jurisdiction is lac}
various pretrial and
address the parties’ chatlenge to thé
post-judgment rulinge. Accordingly, we reverse the circuit
court's August 22, 2001 final judgment
X. BACKGROUND
A. Legal _Backorouné
2, The Randolph-Sheppard Vending Stand Act
Congress enacted the Randolph-Sheppard Vending Stané
Act [hereinafter, the federa) RSA] in 1936, amending the federa?
RSA twice, in 1954 and 1574. Pub. L, No. 74-732, 86 1-7, 49
Stat. 1859, 1859-60 (2936); Pub. L. No. 83-565, § 12, 68 Stat
652, 663-65 (1954); Pub. L. No. 93-516, §§ 200-11, 68 Stat. 1637,
3622-31 (1974); see also Pub. L. No. 93-651, 8§ 200-21, 89 stat.
2-3, 2-7 te 2-16 (1974) (codified as anended at 20 U.S.C. §§ 107
to 107f (2000)). The federal RSA establishes a cooperative
federal-state program [hereinafter, the federal RSA program or
the program] that “providles] blind persons with remnerative
employment, enlarg[es] the economic opportunities of the bling,
and stimilat les] the blind to greater efforts in striving to nake
themselves self-supporting" by authorizing licensed blind persons
“to operate vending facilities on any [flederal property” and
granting then “priority” in euch operation. 20 U.S.C.
§ 207(a)-(b).
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Under the federal RSA, states can gain access to
federal properties in their respective states to operate blind
ee apply to
vending facilities by having one of its state ager
the United States Department of Education (USDOB) to be
designated as a ‘state licensing agency” (SLA), and, as discui
more fully infra, states met agree to a number of conditions.
See New Hampshire v. Ramsey, 366 F.3d 1, 6 (1st Cir. 2004)
(*states’ participation in the program is voluntary.*). The
SLAs, in turn, license blind persons to operate vending .
facilities and match them with available contracts on federal
property. 20 U.S.C. § 107b.
Examination of the evolution of this unique federal
statutory schene reveals that the original federal RSA was
designed to create employment opportunities for the blind on
federal property and for further federal rehabilitative efforts
on behalf of the blind. H.R. Rep. No. 1094, 74th Cong., 1st
Sess. 1, 2 (1936). As originally designed, no priority or
preference was given to blind vendors to operate vending
facilities on federal property. Id.; see algo Pub. L. No.
74-732, $§ 1-7, 49 Stat. at 1559-60, The 1954 amendment,
however, strengthened the federal RSA by, intex alia:
(2) authorizing a preference, where feasible, to blind vendors to
set up vending stands on federal property, Pub. L. No. 83-565,
$4, 68 Stat. at 663; gee also 20 U.S.C. § 107a(b) (providing
that SLAs "give preference to blind persons who are in need of
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and (2) requiring that participating states (i.e,
employment*
atiefsed with any
SLAs) agree "te provide any blind licensee
1g from the operation or administrabion of the
action aril
vending stand program an opportunity for a fair hearing," Pub. L.
No. 83-565, § 4, 68 Stat. at 664. The 1954 amendment did rot,
however, specify the nature of the hearing or the relief which
should be afforded as a result of such a hearing.
In 1969, Congress proposed additional amendments
becouse of the weak showing in the munber of blind vencore
operating on federal property, the growing trend toxare
GEstallation, of vending machines and the exclusive use of
machines in sexe federal bulldinge, ae well as increasing
Use of vending machine incone by federal enployees for
Fecrestion ane welfare purpccer: 5. 2461 was cessgned to
protect the biind preference ertabiiehed in the 195¢
Enendsent()." 5. Rep. No, 235, sist Cong., 24 Sess
as70)
Texas State Conm'n for the Blind v. United States, 6 Cl. ct. 730,
732 (1984) (footnote omitted), rev'd on other rounds, 796 F.26
400 (Fed. Cir. 1986) (en banc), cert. denied, 479 U.S. 1030
(2987). Although hearings on Senate Bill No. 2463 were held in
both the senate and the House of Representatives, the Sist
Congress adjourned without considering it further. See Delaware
Dep't of Health & Soc. Serve ited States Dep't of Educ.,
772 F.2d 1123, 1127 (34 Car. 1985). In September 1971, a similar
ee Bill No. 2506, wae introduced in the 92¢ Congres:
bill, Ser
However,
Congress requested the General Accounting Office (G40) to
feview vending operaticns ca federal ly-controlled property
ind te Getermine if blind vendors were receiving preference
20 requires by the 1554 amendment (]-
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‘The report concluded that the program wae languishing et the
federal level while flouriehing at the state level ane in
the private sector. GAO foune that net only her little
attention beer paid to the Blind vender program, bot that
Rajor abuces rad cccurred!, g.g., che perent Defence
Departent association at 4 major federal space installation
Genanced Eling vendors give # portion of their income 20 the
atsociaticr; and the Department of Defense reguiatsone, 32
ClPvR. § 260.81B) (3) (31). (2866), provsced thst ne permite
would be Granted to blind vencofe for the operation cf
Vending stands if morale and welfare programe would be
placed in jecparay!
Texas State Comm'n for the Bling, € cl. ct. at 7
omitted). Consequently, ancther bill, Senate Bill No. 2561,
(Zeotnote
which reflected sone of the findings contained in the GAO's
report, was introduced. Delaware Dep‘ a soe. .
772 F.2d at 1127 (citing S. 2581, 934 Cong., Ist Sess. (1973))
Eventually, House Resolution No. 14228, substantially similar to
Senate Bill No. 2561, was passed and became law on Noverber 21,
1974. Id, (citing Pub. L. No. 93-651, 89 Stat. 2-3 (1974)*).
The 1974 amendment expanded the statute to increase the
fair treatment of blind vendors and to provide oversight of the
federal RSA’s application in the federal government, among other
+ an the 1974 anencnent, Congress epecifically made the following
findings:
(2) [alfter review of the operation of the blind vending
stand program authorized under the (RSA) of Sune 20, 1538,
that the program has net developed, ang had not bees
Sustained, in the nanner and epiric in which the Congress
intended at the tine of ite enectnent, and chet, in fa
the growth of the program has been inhibited by'a number of
external forces; [anal
@) oipibe
t]he potential existe for doubling the number of
bling’ obeyatore on Federal ond ster pecberey Unter the
Randolph: Sheppara program within the next five years.
provided the cbetacies to growth are renoved, that
Tesisistive and aduinietrative means eviet co renove euch
obetacies, and that Congress should adopt legieiation te
that ena")
Pub. 1. Ne. 93-681, § 202, €9 seat. at 2-7 (emphasis added).
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objectives. ©. Rep, No, 937, 93rd Cong., 2d Sess. § (1974),
reprinted in, 1974 U.S.C.C.A.N. 6417 [hereinafter, &. Rep. No
93-937]; see also Pub. L. No. 93-652, $§ 200-21, 89 Stat. 2-3,
2-7 to 2-16 (1574). The 1974 amendment, in part, resulted in
giving blind vendors exicrity (as opposed to preference) to
operate vending facilities on federal property. 20 U.£.C.
§ 107(b). Thus, in eum and as nore succinctly described by the
United states Court of Appeals for the Sixth Circuit in Tennessee
ices v, United partment :
ment of Hu!
Education, 979 F.2d 1162 (6th Cir. 1992): .
BEA) grante priority te those bling persons whe
The [feeer
Serize to operate vending facilities on federal property.
20 U.s.c. £ 107ib). The [federal RSA] civicer
poneibisity fer the Blind vendor procran between the
Habe and federal agencies, The Secretary of Education
Tihereinatter, the Secretary]], is responsible for
Incerpreting and enforcing the’ (federal RSR"e) provisions,
ani nee specificslly, for designeting [slas). "20 U.8.c.
Fioveia) (2), if] 30%b: 34 C.F-R. $8 398.5, 395.8. h person
decking « position sz 2 blind vendor appii¢e to the
designated state agency and ie licensed by that agency. The
Stare agency 12 turn applies to the federa? governnent tor
the placevent of the licensee on federal property. 20
Ui.€, § 10%). Onee the state and the federal governnent
hove agreed of an appropriate location for the vending
fecilicy, the (SiAl if responsible for equipping the
fecility and furniehing the initial stock and saventory. 20
Uis.c. f io%bi2l. the blind vendor thereafter operates as 2
Scle proprietor who ie entitled to the profite of the
Sesding facility and sho ie responsible for the facility's
es
Ad, at 1263-64.
‘the 1974 amendment aleo revised the renedial schene for
aggrieved blind vendors. See Pub. L. No. 93-561, §§ 204, 206, a9
stat. at 2-10 to 2-11, codified at 20 U.S.C. §§ 107b(6) and
1o7d-1; §. Rep. No. 93-927. At that time, in addition to the
ng tates provide dissatisfied
1954-requirement that participa
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opportunity for a fair hearing,” Pub. 1. Ne
blind licensees “a
at 20 U.S.C. § 107b(6),
83-565, § 4, 68 Stat. at 664, Codi,
Congress imposed the additional requirement that participating
states “agree to submit the orievances of any blind licensee not
otherwise resolved by the fairl hearing to arbitration
provided in section § of thie Act [20 U.S.C. § 107d~
"Pub. Le
No. 93-652, § 204, @9 Stat. at 2-10, codified at 20 U.S.C.
§ 107B(6) (emphasie added). The term “fair hearing” was defined
ae Ya full evidentiary hearing” in section §(a) of the 1974
amendment, which states: .
Any blind Licensee who Je diesatiefied vith any action
ising from the operation of sduizistraticn of the vending
fecility program may submit tos (sta) 2 requect for a full
guident aby hearing, which shall be provides by even sgency
Sv eccordance with section 2(€) of thir Act (dit,, 20 D.Sse.
S'n07bi6)}
Pub, L. No. 93-651, § 206, 69 Stat, at 2-12, codified at 20
U.S.C. § 107d-1(a) (emphasis added). Additionally, Section 5(a)
provides tha:
If such blind licensee fe diseatiefied with any action taken
or decision renderea se 2 result of such hearing, he may
hg aignute purcuant to section € of this
Bet (ier, 20-U.8.C. § 2076-2], and the decieicn of euch
Panel shail be final and binding on the parties except as
Otherwise provided in this Act
of the 1974 amendment
Id, (emphasis added). Section 6
provides in relevant part:
Such [arbitvation] panel shall, in accordance with the
provisions of subchapter T1 of chapter * of Title 5, give
Rotice, cercuct a hearing, ang render its cecieion shich
Action for eursoses of “nape >of Title
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20 U.S.C. § 107d-2(a) lenphasie added). The
Ids, codified
‘eference to chapters 5 and 7 of Title 5 are to the
acminiotrative procedures and judicial review provieione of the
Adminietrative Procedure Act (AFA) .
Thue, in sum, the renediai echene mandated by the 1974
amendment include: (1) a full evidentiary hearing at the state
level before the SLA; (2) an opportunity to appeal the SLA
decision te the USDOE for review by an arbitratien panel; and,
arbitration panel
finally, (3) judicial review of the USDOE
decision in the federal courte (hereinafter, collectively, the
federal adjudication path]. Pub. L. No. 93-561, $§ 204, 206, 69
Stat. at 2-10 to 2-21, codified at 20 U.S.C. $§ 207D(6), 1074
and 107d-2(a) .
‘The Hawai'i Randolph-Shepparé Act
As previously stated, the Hawai": RSA, consisting of
HRS §§ 102-14 and 347-12 and their implementing regulation, HAR
§ 17-402-17, is modeled after the federal RSA and applies to
state and county properties.‘ HRS § 102-14 provides in relevant
part:
Section 706 of 5 U.S.C. permite the reviewing court to set aside
agency adjudicative actions which are, inter alla, "arbitrary, capricious, an
absce of giacretion or otherwise ner in accordance to law,” or “unsuppereee By
substantial evidence.”
dissenting
op: at 34; "such application of the rule would vielate state law ané well”
eftablished principles of agency lay." Dissenting Op. st 36. Thue, the
nt maineaine that, “Af HAR § 17-402-17(]) attempts to divest the erate
courts of their jurisdiction, it ie invalid." Dissenting Op. at 38. The
nt, however, faile to recognize that the Hawaii Legislature delegeted to
the agencies the’ authority €©
accept, receive on behalf of the State, and receipt for, any
ang ali granee or allotrente for federal-aie moneys made
available to the State by oF pursuant to an act of Congr
ane enter Inco or mate such plan, aareerent, or other
with the agency desionated my the act of
arrangerent
Scnarese as in necessary to carry cut the purpose of the
act]
HRS § 25-14 (1953) (emphases added). Specifically, with respect to the Bling
oF visually handicappes persone
[OHS] may, a8 an agency of the State for the
assistance of blind or visually handicapped persons, do
Shlngs, hich win)" eye the stare and the bind and the
HRS § 347-5 (2953) (emphases agéed). Under the federal RSA, Congress mandated
States to agree to certain conditions, including the acceptance of the feders)
adjudication path, sn order to gin access to federal properties and to cbtain
federal funds, whieh are derives prisarily in the ferm of vending machine
incone fron non-Blind vendors’ machines on federsl properties, 20 U.8.¢.
(cont inves...)
-37-
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402, 425, 63 F.3d 664, 666 (2004) (“If an administrative rule’e
ion ie neither
Janguage ie unambiguous, and ite literal applic:
inconsistent with the policies of the statute the rule implemente
nor produces an seurd or unjust result, courte enforce the
ryle‘s plain meaning.” (Citation omitted.)); see algo State v.
Kotis, 91 Hawai'i 329, 331, 984 P.2é 78, 80 (2988)
("Administrative rules, like statutes, have the force and effect
of law." (Citations omitted.)).
The dissent, however, aeserte that the leoielature
wvested juriadiction in the circuit court for a claim arieing
under the Hawai'i RSA," dissenting op. at 40, because it mandated
that rules be adopted in accordance with HRS chapter 91, which
vepecifically provides for judicial relief in the circuit court
for persons agorieved by an agency declaratory ruling or @
decision ina contested case.” Id. (citing HRS § 91-7(8) (2993))
(interna) quotation marke omitted). We note that the provisions
contained in HRS chapter $1 can essentially be divided into two
parts that authorize (2) the promulgation of rules and (2) the
continued)
‘See Davie v. Monroe County 54, of Bduc., £26 U.S. «25, 640 (1595)
(citen Congress acts poYsuant to ite spending power, it generates legislation
much in the nature of s contract: in return fer federal funde, the states
agree to comply with the federally imposed conditicns.* (citation and
Sneernal quotation marke omitted.}); gee also Office of Hawaiian Affaire ve
State, s6 Hawai 368, 397, 32 P.3d $0, 910 (2001). Clearly, Das wae given
Ehe authority to enter into a contractual relationship with che Unieed staves
fo participate in exe program for the benefit of the State's blind and
Webally handleapped persone. In turn, DMS promulgated HAR § 27-402-17 and
Incorporated one of the fecere) conditions within ive relee, that is, the
federal aojudication path. We note further that the USDOE, in 34 C.F.
§°395-2(b) (2), see gubra note 13, cbligates the chief executive
fo approve DHS's application for Gesignaticn ae an SLA)
executive of the State, George R. Ariyeshi, approves Dis
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establishment of adjudicatory procedures. The rule-raking
procedures provide for, inter alia: (1) the adoption of rules by
agencies, HRS § 91-3 (Supp. 2005); (2) the filing and
effectuating of rules, HRS § 93-4 (1993); and (3) the publication
of.rules, HRS § 91-5 (Supp. 2005), The provieions governing the
establishment of adjudicatery procedures provide for, inter alia
(2) declaratory rulings by agencies, HRS § 91-8 (1993);
(2) contested case hearings, HRS § 91-9 (1993 & Supp. 2005); and
(2) judicial review of contested cases, HRS ¢ $1-24 (Supp. 2005).
HRS § 102-14(b) specifically states that DHS “shall
adopt rules in accordance with [C]hapter 91," which the dissent
maintains includes the authority to establish adjudicatory
procedures of Chapter $1. However, had the legislature intended
that the adjudicatory provisions of Chapter 91 be followed, it
would have expressly indicated such intent as it has done in
other statutes on various subjects. For instance, in enacting
HRS § 174C-8 (1983), relating to the State Water Code, the
legislature provided that rules concerning water resources "shall.
be adopted in conformity with [Clhapter 91," (emphasis added),
mandating further tha
211 proceedings before the commission (on water
resource managenent) concerning the enfercenent oF
application of any provision of this chapter... or the
Stevance, modification, or revocation of any permit or
Lice
sell be conducted in scoordasce with
(Ginante: fa!
HRS § 1740-9 (1993) (emphasis added). Similarly, other statutes
demonstrate the legislature's express adoption of the rule-making
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and adjudicatory procedures of Chapter 91. See, e.g., (1) HRS
nts commission to
§ 368-3 (Supp. 2005) (requiring the civil
pter 91") and HRS § 366-24 (2993)
vadept rules under [¢
(providing that civil rights conmiseion hearings to be conducted
10B-213(a) (2008)
in accordance with Chapter 91); (2) HRS § 43
(adopting Chapter 91's rule-making procedures for credit life
insurance) and HRS § 431:10B-108(k) (2005) (adopting Chapter 92's
adjudicatory process for approval and denial of, inter alia, the
schedules of premium rates by the insurance’ conmissicner) ;
(3) HRS § 491:10C-214 (2005) (adopting the rule-making procedures
for the disposition of insurance claims arising out of motor
vehicle accidents) and HRS § 421:20C-212(e) (2005) (adopting the
adjuéicatory procedures for the denial of claim by insurer): and
(4) HRS § 4328-12 (2005) (adopting the rule-naking procedures for
patients’ bill of rights) and HRS § 4328-6(4) (2005). (adopting
w of manage care plans). Here,
the adjudicatory process for revi.
the Hawai'i RSA statutes do not contain language denonstrating
the legislature's intent that Chapter 91's adjudicatory
provisions be followed.
Moreover, even when a statute's reference to Chapter 91
is silent as to the adoption of ite adjudicatery provisions, it
appears that the agency hae the discretion to decide whether to
adopt the adjudicatory provisions of HRS chapter 91 when
promigating ite administrative rules. For example, although the
specifically, HHCA § 222
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reesly indicates 1
the department of
(Supp. 2005) -- exz
Hawaiian home lanée “shall adopt rules and regulations and
policies in accordance with [Chapter $1,” it ie silent as to the
ne. Nevertheless, the
adoption of the adjudicatery provi
Gepartment adopted the adjudicatory provisions of Chapter 92.
Seq HAR § 10-5-32, Similarly, HRS chapter 4468, concerning the
Licensure of dietitians, provides that the director of health
shall “[aldopt, amend, cr repeal rules pursuant to [C)hapter 92
as the director finde necessary to carry out this chapter.” HRS
§ 448B-3(2) (Supp. 2005). Yet, chapter 4488 ie eilent as to the
application of the adjudicatery provisions. Title 1, chapter 79
of the HAR, applicable to dietitians, however, clearly
incorporated the adjudicatory provisions of Chapter 91 into its
dispute resolution procedures. HAR § 11-79-13(f). Such is not
the case here. HAR § 17-402-17 does not dictate that the
grievance process is te be conducted in accordance with chapter
$i. In fact, HAR § 17-402-17 clearly establishes @ procedure
that is consistent with the purpose of the Hawai'i RSA and the
federal RSA. As required by the federal RSA, HAR § 17-402-17
recognizes the federal adjudication path, @ condition that the
State must accept to becone a designated SLA. Accordingly, we
are unconvinced that the reference to the rule-making procedures
of Chapter $1 in HRS § 102-14(b) mandates the adoption of the
chapter's adjudicatory provisions.
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we
that jurisdiction
which establishes the RSR Account, provides that
ir ‘The (RER A)ecount shall be veed by (Hs) for:
ia) “ine provision of the fellowing Benefite for
biine vendors:
a iSitenent or pension
(®) Eeaish imurance; ane
(e) _ Eltkeane vacation leave:
(2) The maintenance and replacenent of equionent
Used_in the blind vending orearan;
is) Hetgabchese of new eguipment 10 be used in che
Eline vending program: ene
(a) The provision of manacerent services, which
Ghali inelude, But not be limited te
(A) The hiring of consultants,
(ine sponearing of training ceninares
(C) Trangportat ion;
(S) Fer diem for vendore to ettend meetings ef
the reate comittee of biine vendore:
le) Services for the state conmittee of bling
vencers; and
ir) Other ecete relat
progran.
(b)_incone fron vending machines on federal. state. and
Scunty ‘prosertice that are within reasonable proximity to,
Gnd in Girect competition with, a blind vercor say be
Scporited into the account and then disbursed to the bling
vender.
te w cunt ‘ o
tron
1d to the blind venéing
a
‘and county operations;
(2) Any otber legally accepted source of income; and
G) Donations
(Emphases added.) Thus, Hawaii's statute acknowledges its
© note that HRS § 347-12. lends further support
ee with federal courte. Section 347-12.5,
acceptance of the federal RSA program and sete out regulations,
to the extent permitted by the federal RSA, that are applicable
to federal, as well ae state and county, properties. The RSR
Account provides 4 strong imp!
ation that the state and county
properties fall within “other property” because income generated
from state and county vending facilities, as well as federal
facilities, are deposited into one central accou
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fit of blind vendors in Hawai'i.
funds may be used for the ben
In other worde, the Hawai'i RSA unequivocally authorizes the use
of funde in the RSR Account “derived in whole or in part,
@irectly or indirectly, from the operation of vending facilities
on any [f]ederal property," 34 C.F.R. § 398.1(n), to, inter alia,
nt
provide managenent services, maintain and replace equipment, and
purchase new equipnent for vending facilities on non-federal
property.
Norecver, pursuant to the authority granted by the
legislature to promileste rules and regulations, DHS recognized
the legislative intent thet state and county properties are to be
considered “other property" when it defi
166 the phrase to mean
“property which is not federally controlled property ané on which
vending stands are.established or operated.” HAR § 17-402-17(a).
It also defined ‘vendor as va blind licensee who is operating a
vending facility on federal or other property." HAR
§ 17-402-17(a) (emphasis added). ‘Thus, under the Hawai'i RSA’s
rules and regulations, “other property" clearly includes state
and county properties.
® the diseent suggests that reliance upon “other property” ie “without
factual basie” because “there ie absolutely no evidence in the record to
conclude that the City received funds from federal property and used those
funds to establish or operate vending facilities en city property. It i8 also
undisputed that the state did not operate vending machines on [C]ity
property.” Dissenting Op. st 23-24 (emphases omitted). It is undisputed that
the City violated the Hawaii REA by placing ite own leased sachines in ite
public fuilaines, rather than providing blind vendre those spaces for their
Sending establishment. Had the City couplied with the Havas Rea, biine
vendors would be given priority to place their vending sachines in the City’s
buildings, In turn, the funds held inthe ASR Account, toe. "income
(eon inved.
43+
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
If we were to accept the diesent’s flawed-theory that
the federal R&A applies to federal property and the Hawai's REA
applies to state and county properties, there would have been no
need for DHS to define the phrase “other property.” In fact, +
the diesent’s theory is correct, the above stated definitions are
nonsensical. For example, if the Hawai'i RSA applies only to
6, ae the dissent maintains, then
state and county propert:
ily be defined as “federally
sother property” must neces:
controlled property” -- rather than “not federally’ controlled
property. Likewise, a “vendor” must necessarily be defined as
va blind Licensee who is operating a vending facility on (state
and county property] or other property [(i.e., federally
crafting ite
controlled property)].* The fact that DHS,
administrative rules pertaining to blind vendors adhered to the
federal "viewpoint," clearly denonstrates ite recognition of the
relationship between the federal and the Hawai'i RSAs, including
its incorporation of the federal adjudication path
our conclusion that the federal adjudication path
prescribed in HAR § 17-402-17(3) is applicable to vending
(, continued)
deriving! from Vending machines on federal, state, ané county properties,"
HES § 247-2.5(b), would be uses for "the naintenance and replacement of
equipeent” and the “purchase of new equiprent,” HRS § 347-2.5(a), thereby,
Tendering the Vending nachines on the City's properties as “other property."
Seg alg HAR § 27-402-27(m) (2) (OHS “shall furnish each vending stand with
Edequate suitable equipment and adequate initial steck of rercnandise
hecessary for she catablisiment and operation of the fecilsey.")
Recorsingly, the Iack of “evidence in the record” Beare no relevance to the
Getersinacion se to whether the county property would constitute "ocber
property." Ae Siecusees punta. the state snd county properties clearly
Under ‘other propert [ies] of the federal REA.
nate
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
operations in all state, county, and federal properties in
Hawai'i is consistent with federal case law, where federal court
have reviewed decisions rendered by an ad hoc arbitration panel
states’ blind
convened by the Secretary involving cert!
vendors’ programs operating in state or county properties. For
8. Smith v. Rhode Ieland State Serve. for the
ind 6 Visually Handi o1 FE, su
oe
In Smith, the United States District Court for the
district court) examined
District of Rhode Island (the U.S
certain regulations promiigated by Rhode Island's Department of
Social and Rehabilitative Services, Division of Services for the
Blind and Visually Impaired (RISE), i.e., Rhode Island's SLA.
iff appealed from the decision of
There, the blind-vendor-plai
an ad hoc arbitration panel, such panel having (a) denied the
plaintiff’e request that he be appointed to a particular
concession stand, Stand #54 at the Garrahy Judicial Complex in
Providence, Rhode Island, and (b) remanded for proper
promgation of clear and unambiguous regulations regarding the
seniority system. 581 F. Supp. at 567
me Carrahy Judicisl Complex houses beth state and county entities,
euch a2 the fanily cours, cistrict cours, workers’ compensation court, trafic,
tribunal, county sherife’e office, and the public Geender®
-45-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
outlining the rules and recujetions applicable co tne
State's bling vendor prosrap, including the ruler relating
fo the transfer and pronction of licensees [at issued in
this case). 34 C-P-R. §§ 398.3, 395-5. In accordance with
thie requirenent, the RISB conceived, incubated, nurtured
and thereafter submitted an lehnographic masterpiece yclept
“Baby Randolph" se an adjunct to RISB's applicsticn fer
yedetignation ae a(n Sua] during the winter of 1975-2980,
The rule governing the method of selection, transfer and
Bronotion of bling vendors if found in Attachment Tih.
Paragraph C.1 of that plas. That section provides in
substance that the transfer and pronotion of vendors ehali
be based upon sencrity, and outlines the nethog by which
senority ie to be calesleted.
Ad. at 568 (emphacie added). Thereafter, in approxinately 1977,
in response to newly enacted federal regulations, “RISE becan
£ rules and regulations for the Rhode
developing = state plan
id. at 568. The state’s rules and
Island bliné vender program.*
ly promilgated and subsequently approved
regulations were eventua!
by the federal government. Pertinent to thie case, Article IX,
entitled “selection, Transfer and Promotion of Vendors” provided:
‘The SLA... with the active participaticn of the state
Comittee of'slind Vendors, hereby esteblishes a selection
transfer and promotion systen for vendors which will be
Unifersly applied to all vendor vacancies that develop of
occur in the vending facilities progres as outlines in
Retacheent 17a
Id, at 570.
Actacheent IX-A, Paragraph C.1 addressed the method of
Selection, transfer and pronotion of vendors in the
following verbiage:
In accordance with the standards as outlined in Paragraphe A
ane B, the selection, transfer and pronction of vendors
shall ‘be based upon seniority. The SEA shall establieh ané
Baintain a roster containing the name ef each vendor, the
Gate of hie or her original Licensing, any subeequent
'e(s) of velicensing and their vending facility address
slority, then, shall be calculated from the criginal date
of Iicenting which shall be mltipiied by the fonber of
Tisenses to
Operate any vending
this sla
-46-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Subsequently, RISE compiled an updated seniority
roster, wherein the plaintiff was ranked junior to another
Licensed blind vendor who eventually was assigned to Stand #54.
RISE did not count employment at any agency stand towards
seniority in the blind vendor program. The plaintiff appealed
the decision of the RISB, arguing that hie tine in service at an
agency stand should have been counted. 1d. The hearing officer
Geclined to disturb RISB’s award of Stand #54. Jd. Thereafter,
the plaintiff appealed that decision to an arbitration panel
pursuant to 20 U.S.C. § 1074-2. Therein, the arbitrator
determined that the seniority rules as promlgated by RISB were
ambiguous and ordered RISB to adopt a clear and unambiguous
seniority scheme. Id, at 571. The arbitrator specified that
Stand #54 was to renain with the other licensed blind vendor
pending @ permanent award of Stand #54.
On appeal to the U.S. district court, the plaintiff
pressed hie claims for monetary damages and for modification of
jexted wi
the seniority list to reflect what he a his proper
rank. Id, at 572, The court denied and diemiesed the
plaintiff’s claims, holding that the arbitrator's finding with
ned in the state's
respect to the ambiguity of the language cont:
seniority rule was supported by the evidence and vas neither
arbitrary nor capricious. Id. at 5:
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
b. MoNabb v. Unite
E.2d 66] (eth cir, 1288)
‘The factual ané procedural background in McNabb further
arising from the operation of the state's
indicates that disput
blind vending program on state property are reviewable by federal
courts
‘The facts are as follows
NeNabe ie a blind person Licensed under the (RSA to operate
Sivencing facility in Arkansac. On Septenter 12, 1860,
Nexabe bie for three telepnone company venaing facilities:
Ye vieletion of applicable laws ane reguletions, two of
these facilities, which were more profitable than the stand
Mesabe then operated, were awarded to blind vendore with
Jese seniority than McNabb. .
on October 26, 1960, McNabb’ filed a grievance, requesting
#511 evidentiary hearing ax provided for in 20 0.e.c
f1076-a(a), On Februsry 22, 1981, the hearing officer
uphelé the denial of the vending stance te Nclskb.
Nollabb then fled 2 complaint with the USD0E), Zico
pursvant to 20 U.8.C. § 207d-2(a), requesting that an
Erbitration panel be convened to decide pie entitierent to
She of the facilities ne had been denied. He later amended
specific relief:
862 F.2d at 682. THe USDOE arbitration panel tock the position
that neither compensatory relief nor attorney's fees were
contemplated under the RSA and that such awards would be contrary
to the principle of sovereign immunity. Id. at 683.
Subsequently, another arbitration decision was issued, finding
that McNabb had wrongfully been denied one of the stands. “AS
relief, the panel gave McNabb[, inter alia,] @ continuing right
of assignnent to the firet of the two stande at issue that became
vacant." 862 F.2d at 662
-48-
=** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
t the USDOE arbitration
‘Thereafter, McNabb requested thi
panel reconvene to award him additional relief. The arbitration
panel refused to reconvene, taking the same position that the RSA
Atution
and the Eleventh Anendnent to the United States Cona
precluded the pane] from awarding compensatory relief or
attorney's fees againet state agencies. 16, McNebb appealed to
the federal district court, wherein the court held that
arbitration panels convened pursuant to the (RSA) have the
authority te aware compensatory relief and attorney's feet
Without specifically discussing the leeve of whether the
eleventh anendvent barred euch awards, che district court .
Stated thar it chore eo follow the Thirs Circuit’ Gecseion
Sn [Beavare Desartnent of Health and Socia! Services.
Divison for the Visually Joaired v. nites Statee
Departnent of education.) 772 P-2d ii23 (Se cir- 1965). In
Delavare, the Tare Circuit, which ie the only ciresit that
hae considered thie question, held that: (2) the (REA)
Inpliesly autnerizes ‘compencatery damage avarde against
atate agencies; (2) states that choose co participate sn
this federsily-cresced program for bling vendors thereby
waive their eleventh amendment swmunity; and (2) atsorney’®.
fees are an appropriate elenent of compensatory Ganagee, for
breach of contract between a blind vendor and ¢ state
agency.
Id, Accordingly, the USDOE and the Arkansas Department of Human
Services appealed the federal district court's decision to the
United States Court of Appeals for the Eighth Circuit. The
Eighth Circuit essentially affirmed the judgment, holding that
the arbitration panel, convened pursuant to the RSA, did not have
authority to award retroactive money damages against the state
for wrongful denial of stands to blind vendors, but wee
authorized to award prospective damages fron the date of the
arbitration panel’s decision to the date vendor accepted
assignment to a new vending facility. Id. at 683-88. For
“49+
*** FOR PUBLICATION ***
in West's Hawai'i Repors and the Pacific Reporter
subsequent history, see McNabb v. Riley, 29 F.3d 1303 (th Cir
ags4)
©. Dep't of Health & Soc. Serve., Div.
for_the Visually Impaired v. United States
Depwr of z i
As mentioned gupra, Delaware involves an action by the
state agency designated to administer the blind vender procram in
Delaware, challenging USDOE arbitration panel's award of
retroactive monetary damages and attorney's fees to a bling
vender who was found to have been improperly denied a vending
facility by the SIA.
‘The facts in Delaware indicate the following:
4 bling vendor Licensed by the
‘vieualay impairea for participstion
ip the Randolph-Sheppard program... . A federal
Fegulation requires that [stae] eevablieh in writing and
rsintain policies which govern transfer, promotion, an
financial participation of vendors. 34 C-F-R. § 395-7(c)
(3986). Delaware's roles set forth a comprehensive schene
for the distribution of funds generated to each blind vendor
facilicy. Of particular significance to thie case, 18 the
State regulation which deals with transfer and proscticn of
blind vencore.
in'auguet of 1975, the Delaware Division of visually
impaired solicited applications for managenent of ite food
Vending facility at the Paramount. Foulsry Company, on
Georgetown, Delaware. Two applicante responded. Albanese
elained to be the sect senior qualified applicant, but the
Division of Visually Inpaired in October, 1979 appointes the
Tees senior applicant. Albanese, pursuant to the Delaware
regulations, mandsted by 20 ..¢. § 107(b) (6) and 34 CPR
£395.13(a) | (1984), £20 « grievance, which resulted in a
full evicentiary hearing before a state hesring exaniner on
February 24, 1962
he nearing examiner found that Albanese wae the =oet
senior qualified applicant, ané ordered the Delaware
Division of Visually inpaived to instal) him as manager of
the Georgetown facility. Albanese commenced work there on
April 2, 1961, The hearing examiner also ordered the arate
agency to pay a porticn of Alnenese’® iegal expences
The nearing examiner declined, however, to award Aleanese
the increased incone ne would nave carnea between the time
he should nave been appointed and April 1, 1988, when
Commenced werk.
-50-
*=** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
772 F.26 at 1132 (citations omitted). Accordingly, Albanese
filed a complaint with the USDOE, alleging hie dissatisfaction
with the failure of the state hearing examiner to award back pay
and full legal attorney's fees. Id. An arbitration panel was
convened and awarded Albanese monetary damages in the form of
back pay and full attorneys fees. Id, at 1134. On appeal to
the federal district court, the court vacated the arbitration
decision and granted the state agency summary judgment. Id. at
1136. On appeal to the United States Court of Appeals for the,
‘Third Circuit by Albanese, the Thiré Circuit Court essentially
reversed the federal district court's decision.
4. Hillincer v. the Cleveland Soc'y for the
2lind, $87 F.2d 336 (6th Cir, 1978)
In Eillinger, the blind-vendor-plaintiffe operated
vending stands in Cleveland, Ohic, under the management of the
Clevezané Society for the Blind (the defendant). The plaintifte
f41ed auit against the defendant, ite executive director, and the
Ohio Rehabilitation Services Conmiseion, “which eupervise(d) in
Ohio a vending stand program established pursuant to federal
law[.]*" 87 F.2d at 337, The plaintiffs alleged numerous abuses
in the operation of the program.
‘The gist of their suit is that for many years the
[defendant], acting without the consent of the blind
vendors Collected a higher percentage of gross sales
than i¢ "reasonable under tne [RSA] and has spent these
funds for unauthorized purpore:
Id, The federal district court dismissed the complaint, and the
plaintiffs appealed. id, The United States Court of Appeals for
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
the Sixth Circuit reversed and remanded the case. The sixth
Circuit granted the plaintiffs ‘an opportunity to exhaust their
administrative and arbitration remedies. After such renedies are
exhausted, any party aggrieved by the arbitrator's decision my
petition the district court . . . for review." 14. at 336."
Therefore, based on our examination of the overall
scheme of the federal RSA and ite relationship to the Hawai's
RSA, as well as feders case law, we hold that, inasmuch as the
federal adjudication path applies to disputes arising from the
Hawai'i RSA, the circuit court lacks subject matter jurisdiction
of the instant case
to decide the ner:
3. Hawai'i Blind Vendor Age’n v. Dep't of Human Serve., 72
Maw, 367, 791 P.24 1262 (1990)
Lastly, the plaintiffs maintain that thie court has
ablishnent of
juriediction to decide iesues relating to the e
vending operations in state and county buildings for blind
vendore under the Hawai'i RSA inasmuch as this state’s only blind
vendor case, Hawai'i Blind Vendore v. Departne:
Human Services, 71 Haw. 367, 791 P.2d 1262 (1990), has so
% ke digcusted supra, the foregoing cases involved dieputer arieing
from the Operstion of vending machines on ctate properties or the
Adninistration of the etate REA program, which wae established pursuant to the
federal REA. However, the dissent sttespes to distinguish the above cages
fron the facce of thie case by contending that chese cases “involves federal
Claime brought under the federal REA where the federal adjudication pats wae
applicable-* (Eephasic in original.) Dissenting Op. at 52. The dissent
thken such position because of ite reliance upon ite flawed bright-line
treatoant cf the federsl end Hawai'i RSXe- As previously aiscussed, the
federal and Hawai's RAs are closely intertwine in that the participation of
the federal REA requires ‘the creation of the Heuaii REA ane seceptance of
Stain conditsone set fortn in the federal RSA, euch az the feceral
Sdjudication path
-52-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Getermined. In that case, Maka'ala, @ Hawai's non-profit
corporation that provides employment preferences to handicapped
individuals, leased space at the airport for a retail concession.
Ad, at 370, 791 P.2d at 1263-64. Thereafter, DHS renewed the
Make'ala airport lease, without firet providing notice of vacancy
or opportunity for blind vendors to apply for the concession
Ad. at 270, 782 P.2d at 1264. Consequently, the Hawai'i Blind
Vendors Association (the plaintiff) brought action against DHS,
alleging violations of the substantive and procedural law
governing the blind vendor program. Id, at 368, 791 P.26 1263.
‘The circuit court granted summary judgnent in favor of DHS, ané
the plaintiff appealed. id,
On appeal, DHS argued that the issue mist first be
brought through an administrative hearing before bringing an
original action in the circuit court. Id, at 370-72, 791 P.2d at
1264. This court, however, held that it “need not decide this
issue" inasmuch as,
lulader the doctrine of prisary jurisdiction, ven @ court
and an agency have concurrent original jurisdiction te
decide issues which have been placed within the special
coupetence of an adsinistrative agency, the Judicial proc
is Suspended pending referral of auch issues to che
adinistrative body for ite views. Thos, the DES egency
process, if available, is the appropriate forum for an
initial deternination cf the icsues raised in thie case.
Id, at 371, 791 P.2d at 1264 (citation omitted). Consequently,
this court “remand[ed the blind vendors’ claims] to DES for an
agency full and fair hearing.” Id, at 374, 781 P.2d at 1266.
8 discussion is an examination of
Notably missing from this cou:
53.
= ** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
the interplay between the federal and the Hawai'i REAS, which ie
understandable given the fact that the issue cf subject matter
jurisdiction was never raised. As a result, this court wae not
given the opportunity to examine the overall federal achene and
its relationship to the Hawai'i RSA as we have been compelled to
Go in the instant case. Thus, based on the foregoing examination
and discussion, we overrule Hawai'i Blind Vendore to the extent
that it can be interpreted to mean that this court hae subject
matter jurisdiction over issues arising from the Hawai'i RSA. :
B. State Defendante’ Appeal/Cross-Appeal and the +
In light of cur holding today, we need not address any.
of the remaining contentions raised by the State defendante and
the plaintiffe’ in their respective appeals and cross-appeals.
IV. CONCLUSION
Based on the foregoing, we reverse the circuit court’s
August 22, 2001 final judgment for lack of subject matter
jurisdiction.
on the briefs:
dorothy sellers, yer
Deputy Attorney Genera, Bete C-neanjare-
for defendant
cress-appell
sppeliance/
Ganong, Wk
Evan R. Shirley, Gregory
A. Ferren, Stanley 5.
Levin, and Ann Williams,
for plaintiffs-appellees/
cross-appellants
|
267315ce-4eeb-4fa6-a1e7-30932dffe7f8 | Office of Disciplinary Counsel v. Yamada | hawaii | Hawaii Supreme Court | No, 28060
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
SSS
OFFICE OF DISCIPLINARY COUNSEL, Petitioner| =
2 3
vs. 5 32
SUAILEY K. YRIRDK, OR.» Respondent. 25=
as
aj 2
(ope 900-202-6548, 01-239-6983)
ORDER OF DISBARMENT
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the Disciplinary Board’s Report
and Reconmendation for the Disbarment of Stanley K. Yamada, Jr.
and Respondent Yanada’s lack of objection thereto as exhibited by
his failure to file an answer to the Petition as permitted by
Rule 2.7(c) of the Rules of the Supreme Court of the State of
Hawai'i (RSCH) of to request briefing as permitted by RSCH
2.7(d), it appears that Respondent Yamada violated Rules 1.1,
2.3, 1,5(e), L1S(d), 3.2, 3.400), Te1(ad, 8.2(a), 8.2(b),
8.3(d) (2), 8.4(a), 8.4(c), and 8.4(d) of the Hawai'i Rules of
Professional Conduct, It further appears that Respondent Yamada
has departed from the State of Hawai'i, and making discipline
effective thirty (30) days after entry of this order, see RSCH
2.16(c), would be pointless. See Office of Disciplinary Counse:
vs Detello, 61 Haw. 223, 225, 601 P.2d 1087, 1088 (1979).
‘Therefore,
oats
17 IS HEREBY ORDERED that Respondent Stanley K. Yanada,
Je. de disbarred from the practice of law in this jurisdiction,
eftective imnediately.
17 18 FURTHER ORDERED that, as conditions for
reinstatenent,
1. Respondent Yanada shall pay restitution as
follows:
a. to Richard Vicari and Deborah Vicari ~ $15,000.00.
b. to Epitacic Garcia - $8,769.22.
2. Respondent Yamada shall pay any costs of these
proceedings a8 approved upon tinely submission of @ bill of
costs, end shall comply with the requirements of ASCH 2.16.
DATED: Honolulu, Hawai'i, Novenber 30, 2006.
¢ -
Sheehan
Sect Oey rem
Bao
Come. Dallgs br +
|
4402c74a-5bda-4ff3-8ccf-9d8d6855151a | Limas v. State | hawaii | Hawaii Supreme Court | No. 26002
IN THE SUPREME COURT OF THE STATE OF HAWAI'T I
TT
ANTHONY M. LIMAS, Petitioner-Appellant
3902,
4
aa
eels 2
vs. ls
Bg =
STATE OF HANAI'T, Respondent-Aopetiee “2
2 =
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(8.P.P. NO. 05-1-0035(2))
EE EEE Moon Co for the couse
ppellant Anthony Linas’ application for
Petitioner~
writ of certiorari filed on October 23, 2006 is hereby rejected.
» November 9, 2006.
DATED: Honolulu, Hawai’
FOR THE COURT:
Anthony Linas
petitioner pro se,
on the application
\Censidered by: Mocn, C.J., Levinson, Nakayama, Acoba, and Duffy,
|
8c45ac52-2857-475c-9d53-d182ab77952a | State v. Liu | hawaii | Hawaii Supreme Court | LAW UBF
No, 25385
1 THE SUPREME COURD OF THE STATE OF KaWAZE
kd 24 1909082
=
=
m
o
JANE LIU, Defendant-Appellant-Petitioner.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HED CR. NO. M71784)
(By: Nakayama, J., for the court”)
Upon consideration of petitioner's second application
for writ of certiorari and the record, it appears that:
(2) on February 13, 2004, the Intermediate Court of Appeals
(ICA) filed a summary disposition order in the above-entitled
matter; (2) on March 22, 2004, the Supreme Court denied
petitioner‘s application for writ of certiorari; and (3) on March
28, 2004, the Notice and Judgment on Appeal was filed.
‘Therefore,
IT 18 HEREBY ORDERED that petitioner's second
application for writ of certiorari filed on September 11, 2006 by
Petitioner Jane Liu is dismissed.
DATED: Honolulu, Hawai'i, October 2, 2006.
FOR THE COURT:
Puan Caste ane
Associate Justice
Jane Liu,
petitioner pro se,
on the application
Sconsidered by: Moon, C.J., Levinson, Nakayama, Acobs, and Duffy, 3¥.
|
289cb172-999f-42e2-9af0-e46e5d534ac7 | Office of Disciplinary Counsel v. Rodgers | hawaii | Hawaii Supreme Court | No. 28305
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
OFFICE OF DISCIPLINARY COUNSEL, Petitione lm
vs 4 3
‘OGRYHIN Hy
HEIDI M. RODGERS, Respondent.
JO} He 62930.
(Ode 02-209-7407, 06-016,8356, 02-341-7839,
(02-242-7440, 02-201-7399, 05-132-8284)
LOWING RESIG IN prs
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the Office of Disciplinary
Counsel's “petition for order granting request of Heidi M.
Rodgers to resign from the practice of law in lieu of
discipline,” and the memorandum, affidavit and exhibits in
support thereof, it appears the motion is supported by Respondent
Rodgers’ affidavit and that the affidavit meets the requirements
of Rule 2.14(a) of the Rules of the Supreme Court of the State of
Hawai’ ("RSCH”). Therefore,
IT 18 HEREBY ORDERED that the motion is granted and the
request of Respondent Heidi M. Rodgers to resign in lieu of
discipline is granted, effective thirty (30) days after entry as
provided by ASCH 2.16(c).
TT TS FURTHER ORDERED that (1) upon the effective date
of this crder, the Clerk shall remove the name of Heidi M.
Rodgers from the roll of attorneys licensed to practice law in
this jurisdiction, and (2) within ten (10) days after the
, Respondent Rodgers shall deposit
effective date of this ord
with the Clerk of this court the original certificate evidencing
aad
her license to practice law in this State.
IT IS FINALLY ORDERED that (1) Respondent Rodgers 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 (£).
DATED: Honolulu, Hawai'i, December 29, 2006.
Alvin T. Ito,
Special Assistant
Disciplinary Counsel,
for petitioner,
on the petition
Heidi M. Rodgers,
respondent pro se
|
74cfec46-5d0f-4ad1-a6a5-f4da1968f5d4 | Office of Disciplinary Counsel v. Murphy | hawaii | Hawaii Supreme Court | No. 27633
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
OFFICE OF DISCIPLINARY COUNSEL, pettcdoner, 3
. Bog
Ble
(ooc 9e-169-5660) are
‘ORDER OF SUSPENSION
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the Disciplinary Board’s Report
land Reconmendation for the Suspension of Patrick W. Murphy from
the Practice of Law for a Period of Six Months, the exhibits and
briefs thereto, and the record, it appears that Respondent Murphy
failed to provide competent representation, handled = legal
matter without adequate preparation in the circumstances,
neglected a legal matter entrusted to him, failed to act with
reasonable diligence and pronptness in representing his client,
failed to make reasonable efforts to expedite litigation
consistent with the legitimate interests of the client, knowingly
disregarded a standing rule of a tribunal or a ruling of the
tribunal made in the course of a proceeding, knowingly disobeyed
an obligation under the rules of a tribunal, failed to keep a
client reasonably informed about the status of a matter, failed
to respond to a lawful demand for information from a disciplinary
authority, and failed to cooperate during the course of ethics
investigations in violation of Rules 1.1, 1-3, 1.4(a),
1.15(£) (4), 2616, 3.2, 3.4(@), 5.3(b), 8.1(b), B.4(a), and 8.4 (4)
of the Hawai'i Rules of Professional Conduct and Disciplinary,
and Rules 6-101(A) (1), 6-101(A) (2), 6-101 (A) (3), 7-106(A), and 1-
aad
102(A) (1) of the former Hawai'i Code of Professional
Responsibility. It further appears, in aggravation, there was
prior professional discipline, a pattern of misconduct, multiple
offenses, refusal of Respondent to acknowledge the wrongful
nature of his conduct, and Respondent Murphy has substantial
experience in the practice of law. It finally appears that there
are no mitigating factors. Therefore,
IT 18 HEREBY ORDERED that Respondent Murphy is
suspended from the practice of law in this jurisdiction for a
period of six (6) 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”).
IT IS FURTHER ORDERED that Respondent Murphy shall, es
a condition of his reinstatement, take and complete the Mandatory
Professional Responsibility Course that new admittees must take,
pursuant to RSCH 1.14, and reimburse the Disciplinary Board for
the costs associated with this proceeding, as determined by this
court after timely submission of a bill of costs.
IT 18 FINALLY ORDERED that Respondent Murphy 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, September 29, 2006.
Charles #. Hite,
Assistant Disciplinary Gre
Counsel, for petitioner “ .
Jack ¢. Morse Sean
for respondent
Cane ooary &
|
b698dc4d-ade2-4757-ac3f-aafdd50c7f36 | Diamond v. State, Board of Land and Natural Resources. S.Ct. Order of Correction, filed 10/25/2006 [pdf]. | hawaii | Hawaii Supreme Court |
‘#+¢ FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER *
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000:
CAREN DIAMOND and HAROLD BRONSTEIN,
Plaintiffs-Appellants,
STATE OF HAWAI'I, BOARD OF LAND AND NATURAL RESOURCES,
‘and CARL STEPHENS, Defendants-Appellees. .
90 OY 42 1905
No. 26997
APPEAL FROM THE PIPTH CIRCUIT. COURT
(CIV. NO. 04-1-0042) .
OCTOBER 24, 2006
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
OPINION OF THE COURT BY DUFFY, J.
Plaintif¢s-Appellants Caren Diamond and Harold
Bronstein [hereinafter, collectively, Plaintiffs]' appeal from
the Circult Court of the Fifth Circuit's January 11, 2005
judgment! affirming the March 5, 2004 Order Denying Appeal of the
Chairperson of the State of Hawai'i Department of Land and
Natural Resources (DLNR) and Defendant-Appellee the State of
Diamond and Bronstein are concerned citizens who have resided in the
area of the subject property for over twenty-two years and eighteen yea)
Fespectively, and are familiar with the property's shoreline.” No party
Eigpotes that Plaineifée have standing to ering the instant action, presunably
porbuane to Hawal't Revised Statutes (HRS) $ Z05A-6 (2001) (*(Alny person
‘nay commence 9 civil action alleging that any agency 3) In
Gxercising any duty required to be performed under this chapter, has not
complied with the provisions of this chapter.”).
! the Honorable George H. Masucks presided over this matter,
FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTE}
Hawai'i Board of Land and Natural Resources (BLNR) [hereinafter,
Order Denying Appeal]. Plaintiffs assert the following points of
error: (1) the conclusion of law in the Order Denying Appeal
rejecting Plaintiffs’ contention that “the certified shoreline
must be located at the annually recurring highest reach of the
highest wash of the waves, and, if that point is mauka of the
stable vegetation line, then the stable vegetation line is not
the appropriate location for the certified shoreline” is in
violation of the statutory definition of “shoreline” contained in
HRS § 205A-1 (2001);? (2) the conclusion of law in the Order
Denying Appeal that the proposed certified shoreline is properly
located at the stable vegetation line is in violation of the
statutory definition of “shoreline”; (3) the definition of
“shoreline” contained in Hawai'i Adninistrative Rules (HAR)
§ 13-222-2 conflicts with the statutory definition of “shoreline”
Contained in HRS § 205A-1; and (4) the Order Denying Appeal “is
clearly erroneous in view of the reliable, probative, and
Substantial evidence on the whole record.”
‘The BLNR responds that: (1) HAR § 13-222-2 is not
inconsistent with HRS § 205A-1; and (2) the DLNR was correct in
> URS § 205A-1 defines “shoreline” as:
[Tine upper reaches of the wash of the waves, other than
storm and seismic waves, at high tige during the season of
the year in which the highest wash of the waves occurs,
usually evidenced by the edge of vegetation growths oF’ the
upper limit of debris left by the wash of the waves
‘** FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER ***
setting the shoreline based on the stable vegetation line.
Defendant~Appellee Carl Stephens’s hereinafter, collectively
with the BLNR, Defendants] answering brief echoes the assertions
of the BINR.
Based on the following, we hold that: (1) the issue of
Uhether the HRS and HAR conflict is moot; and (2) the circuit
court erred as 2 matter of law in affirming the Order Denying
Appeal. Accordingly, the judgment below is reversed.
T. BACKGROUND
By warranty deed recorded on December 8, 1999, Stephens
purchased the subject property, an ocean-front parcel in the
Wainiha Subdivision on the North shore of Kaua'i [hereinafter,
Lot 2]. At the time of the purchase, Stephens did not obtain a
certified shoreline survey of Lot 2, and the most recent
certified shoreline for Lot 2, dated December 11, 1990, was no
longer valid.
In July 2000, Stephens hired a contractor to cut the
trees on Lot 2, including the large false kamani trees in the
area of the shoreline. After the trees were cut, Stephens hired
a landscaper to plant vegetation in the shoreline area of the
Jot. In or around July and August 2000, spider lilies and
naupaka were planted along the “seaward property line” and the
public right of way bordering Lot 2's western boundary. An
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
irrigation line was installed to water the newly planted
vegetation.
A. The First Survey -- July 2001,
On or about July 27, 2001, Ronald J. Wagner, P.E.,
L.S., of Wagner Engineering Services, Inc., on behalf of
Stephens, submitted to the DLNR a shoreline survey for Lot 2
based upon a field survey done on July 17, 2001. The following
text appeared on the shoreline survey prepared by Wagner:
“Shoreline Follows along highwater mark. The vegetation/debris
Line July 17, 2001 (10:30 a.m.) {.1"
On October 10, 2001, the state surveyor, Randall
Hashimoto, conducted a site visit of Lot 2. Hashimoto
recommended certification of the shoreline based upon Wagner's
July 17, 2001 field survey. At the time of the site visit,
Hashimoto opined that the vegetation he observed below the
shoreline established by the Wagner field survey was “either
planted or induced” by human activity, so he did not use such
Vegetation in his location of the shoreline. As recommended by
the state surveyor, the shoreline was certified for Lot 2 on
October 25, 2001. The certification was valid for one year
pursuant to HRS § 205A-42 (2001). However, Stephens’s attempt
+ HRS § 205K-42, entitled “Determination of the shoreline” provides in
fn
(2) The board of land and natural resources shall
adopt roles pursuant to chapter 91 prescribing procedures
(cont snuea.
‘+4 FOR PUBLICATION IN WEST'S HAWAF' REPORTS AND PACIFIC REPORTER ***
to begin building within six months of the certification as
required by County of Kaua'i Rules was frustrated by the
inability of his architect to submit final plans in time. AS
such, Stephens was forced to redo the survey.
B. on = 02
on May 15, 2002, Dennis M. Esaki, LPLS, of Bsaki
Surveying and Mapping, Inc., conducted 2 field survey of Lot 2.
Hashimoto accompanied Esaki and advised him in the determination
of the shoreline. In Hashimoto's opinion, according to his
testimony at the contested case hearing, even if the upper wash
of the waves was mauka of the vegetation line, the vegetation
Line would still be where he would place the shoreline:
([plaintists’ Attorney]... {ile
Shore of Kauai,
re talking North
[asninoter) Yeah
*(.,seontinued)
for determining @ shoreline and appeals of shoreline
Geterminations that are consistent with subsection (b);
provided thet go determination of 2 shoreline shall be valig
fora period lender than twelve months, except where the
Shoreline is fined by evtificial structures that have been
approved by appropriate government agencies and for which
cnpineering drawings exist to Locate the interface between
the shoreline and the structure.
(©) The chaizperson of the board of land and natural
resources shail cause @ public notice to be published in the
periodic belletin published by the office of environmental
Goality control. All coments to the application for
Shoreline certification shell be submitted in writing to the
State lang surveyor no later than fifteen calenoar days from
the date of the public notice of the application. Notice of
apelicetien for certification shall be identified by tax map
Key nunber, and where applicable, street address and nearest
Usphasis added.)
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *
[Plaintises’ attorney:] -- and we! re talking about
the surf Teoccurs [sic] annually. In the same spor every
year, the north swells cone in and it goes over the
Vegetation line and sets s debris Line and represents the
Upper wash of the waves, will you aet that as the shoreline?
nd your answer is\no, Correct?
(Hashimoto:) No, I use the sore stable evidence.
[Plaintitte’ Attorney:] Right, you want to use the
vegetation Line.
Iiashimoto:) More stable evidence, yeah.
(Plainestts* Attorney:) Yeah. Even if it’s
Ring the upper wash of the waves
Additionally, Hashimoto testified that, in determining the
shoreline, he utilized the naupaka that he had refused to utilize
during the 2001 field survey. It was Hashimoto's opinion ‘that:
(2) even if the naupaka were planted or promoted by human
activity, if they “withstood a complete yearly cycle or the high
surf,” that would establish the stable vegetation line by which
Hashimoto would define the shoreline; and (2) “[t)he vegetation
would have precedence over the debris line” because the
vegetation line is “more stable” and the definition of
“shoreline” in HAR § 13-222-2 means that “where there is a sandy
beach the edge of vegetation growth is the preferred means for
determining a location of a shoreline.”
Based on this survey, Esaki submitted a new application
to the DNR on behalf of Stephens for the shoreline certification
of Lot 2. The survey located the shoreline based upon the
“vegetation line as located on May 15, 2002 (11:30 a.m.) [,]" and
s+ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
resulted in the shoreline moving makai by 10.62 feet on the
eastern boundary and makai by 4.72 feet on the western boundary
of Lot 2.
on July 23, 2002, Hashimoto conducted ancther site
visit. Representatives of Stephens, Esaki, Diamond, and others
were also present at this inspection. At the inspection,
Diamond: (1) gave Hashimoto photographs that she represented as
showing the upper wash of the waves of the winter surf; (2)
informed Hashimoto that the owners of Lot 2 planted an
“artificial” vegetation line: and (3) presented her position
regarding the placement of the shoreline. Nevertheless, +
Hashimoto recommended for certification the shoreline submitted
with Esaki’s May 2002 application. on July 26, 2002, as
recommended by Hashimoto, the shoreline was certified for Lot 2.
The certified shoreline was valid for one year and expired on
guly 25, 2003. Public notice of the shoreline was published in
the August @, 2002 Environmental Notice.
on August 28, 2002, Plaintiffs filed an appeal to the
BINR asserting that the certified shoreline did not accurately
reflect the upper wash of the waves as evidenced by the wintei
surf. Retired Judge Boyd Mossman was assigned to hear the
contested case. On January 9, 2003, during the “winter wave
season @ few days after the highest waves of the season at high
tide(,]" Judge Mossman conducted a site inspection of Lot 2.
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Also present were Hashimoto and representatives of the parties te
the contested case hearing.
The contested case hearing commenced on March 31, 2003
and was completed on May 14, 2003. Judge Mossman issued a
seventeen-page decision concluding thet the shoreline was
correctly determined. ;
On July 25, 2003, the BLNR entered its “Findings of
Fact, Conclusions of Law, and Decision and Order” substantially
adopting Judge Mossman’s findings and conclusions and denying the
appeal (hereinafter, LNR’s Order). In relevant part, the BLNR
entered the following findings of fact:
51. The location determined ss the shoreline on May 35,
2002 was consistent with the adjoining properties and
based on mature vegetation that predates the planting
that occurred in July or August of 2000,
53, On January S, 2003, 2 site inspection of Lot 2 was
held in conjunction with this contested
Fresent st the site inspection [were] Me
‘and well
Rarking the certifieg
shoreline were largely contained within vegetative
5¢. Evidence of plantings of naupaks and spider lilies by
persons hired by Mr. Stephens at Lot 2'in July oF
August 2000 was presentes; however, at the tine of the
survey by Mr. Esaki of Lot 2 the plantings were no
Jonger being watered or cthersise artificially
maintained and had established themselves with a solid
Foot core which had weathered two years of winter surf
without retreating mauka because of ealt water
Snundation fron the Aighest wash of the waves:
FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER
63
66.
er.
ea.
10.
02.
Neupaka is an ideal indicator of the upper wash of the
aves because of its salt tolerance and ability to
Withetand occasional salt water inundation, auch as
ay be found in storm or other unusually high wave
Sonditions, while not surviving if constantly
Shundated or subjected to ripping or undermining by
wave action
Ronde) Tenay testifies ae an expert in horticulture
fand shoreline vegetation for (Stephene). Me. Taney
made four site visits between February 3 and May 12,
2003.
Tt wag tir. Temay’s opinion that the certified
shoreline{] for’ (Lot 2 was a} conservative
Gemarcatson{) of the shoreline and that the prior
Fenoval by (Stephens) of false kanani trees hed
Sllowed for resprouting of netive plants.
[Plaineifts’) expert witness, Dr. Charles H. Fletcher
IIT, in bis 1994 report to the Office of State
Planning, Coastal Zone Management Program, stated as
follows
sin this report, we recommend that the shoreline
definition be modified to place an increases.
emphasis en the use of the vegetation line as a
Ratural monunent, and a decreased emphasis, cn
The ‘upper reach’ of the wash of the waves./"
ere was no convincing evidence of a debris line at Lot 2
though several witnesses testifies that they had over ehe
years seen wave action going up to the fence post st the
Public right of way and even down the pathway to the public
Foaa.
The practice of the State Surveyor is to use the Line of
vegetation where present, and not the line of debris, as
eridence of the upper wash of the waves, due to the (sic!
Sts greater stability,
he site visit was conducted during the winter wave
Season a feu daye after the highest waves of the
Season at high tide and evidence of waves breaching
the vegetation line wes minimal if at all and act
Convincing.
(Citations omitted.) The BLNR also entered the following
pertinent conclusions of law:
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a.
Fra
1s.
vn
1
‘The edge of vegetation growth is the best evidence of
the shoreline in this case, ag it shows the result of
the natural dynenics and interplay between the wave:
and the Line of vegetation over a period of time for
Stability, as against a debris Line which may change
fron week’ to week or from day to day.
The use of the edge of vegetation growth is
advantageous over the debris line Sn that it is
Practical, easily identifiable and stable.
The shoretine() advocated by (Plaintiffs is) not
Supported by the evidence.
Applyinig the law to the facts, as a matter of lex, the
field survey conducted on May’ 15, 2002 by Me. Esaki
correctly determines the location of the shoreline on
Lot 2 pursuant to the definition of “shoreline” in HRS
§ 205a-1 and the definition of “shoreline” and .
“vegetation growth” in HAR § 13-229-2.
The May 15, 2002 field survey was correct because,
among Other things: (1) the age of the vegetation
around the stakes indicated that it was naturally
Footed and growing; (2) there was no evidence that the
vegetation was being artificially maintasnea; (3) the
Vegetation line was consistent with the vegetation
along the coastline; (4) the vegetation line rensined
Stable through severe winter conditions over an
extended period of tine; and (8) the stability of the
vegetation was chserved first hand at the site
Inspection on vanuary 3, 2003 and reconfizmed on that
gate.
On August,25, 2003, Plaintiffs filed a notice of appeal
in the circuit court. That appeal, Civil No. 03-1-0122, was
dismissed by the circuit court on February 12, 2004 because
Plaintiffs failed to file an opening brief as required by Civil
Administrative Order 10.5.
¢. The Third survey -- august 2003
The previous certification having expired, on
Septenber 16, 2003, Esaki, on behalf of Stephens, submitted
10
‘OR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER
another shoreline certification application for Lot 2 based upon
a shoreline survey which occurred on August 15, 2003. This
survey located the shoreline for Lot 2 as the “shoreline as
certified on July 26, 2002 and resurveyed on August 15, 2003."
Hashimoto agreed with that location. A notice of the proposed
shoreline certification for Lot 2 was published in the Office of
Environmental Quality Control (0&QC) Bulletin on Noverber. 8,
2003.
on November 26, 2003, Plaintiffs, along with Beau
Blair, filed an administrative appeal of the proposed
certification of Lot 2 with the BLNR. On March 5, 2004, the
Order Denying Appeal was filed, stating that the certified
shoreline was properly located at the stable vegetation line. In
relevant part, the Order Denying Appeal stated:
Initially, it should be clarified that the “vegetation
Line” used here is not the aaksi edge of vegetation growh.
In some areas, the proposed certified shoreline is located
within the vegetated ares, The State Surveyor used the
Setaple vegetation line" to locate the shoreline. Stable
vegetation are plants that, without continued human
Intervention, are well-estaslished and would not be
uprooted, broken off, of unable to survive occasional wt
oF run-up of waves.
The fact that at one time the vegetation here was
planted by hunan hands does not nullify the use of the
Stable vegetation line to determine the location of the
shoreline for certification purposes. Vegetation that, even
though originally induced, 1s able to survive through the
Seasons over several years without human intervention
provides a good indication of the location of the shoreline,
‘The shoreline certification history of this property
Aulustrates the factors considered in Locating the shoreline
Sihen there is induced vegetation. in acting upon an
application for shoreline certification in duly, 2001, the
State surveyor, upon site inspection, noted that there was
indveed vegetation, Because the State Surveyor did not know
u
121+ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ***
hhow long the vegetation had been there, and consequently,
could not determine whether the vegetation growth wos
Stable, ‘the vegetation line was not used to locate the
Gertified shoreline at that time. Instead, in 2001 the
shoreline was certifies at the top of the bank.
in late 2003, the sane State Surveyor, noting that the
sone vegetation growth had survived through at least two,
years, could now make e determination that the vegetation
Growth was stable, Thus, on this application it is
appropriate to use the stable vegetation line to locate the
shoreline.
Tine ‘then the stable veaatart
‘Aocation tor the certitied shoreline, Anpeliansa-
‘Gontention te net consistent withthe derinitiee ot
Sehoreline."ang, is therefore
“Shoreline” for certification purposes is defined ae:
the upper reaches of the wash of the waves, other then
Storm and seismic waves, at high tide during the
Season of the year in which the highest wash of the
Waves occurs, Usually evidenced by the edge of
vegetation gfowth, or the upper limit of ebris left
by the wash of the waves
lies] § 2058-1.
In adépting this definition of “shoreline,” the
jislature adopred the Hawai("li. (Sluprene (Clourt’s
delineation of the boundary dividing private land from
public beaches in Application of Asafore, 50 Haw. 314, 440
P.2a 76 (1966). “it Ls reasonable and appropriste,
therefore, £0 look to Ashford and its progeny for guidance
fon questions on how the shoreline should be located for
Sereification purposes
The use of the upper reaches of the wash of the waver
as the boundary between private land and public beacnes 23
Based on ancient Hawaiian tradition, custom, practice and
sege. Historically, "(i]t was the custom cf the ancient
Hawaiians to name each division of lang and the Soundaries
of each division were kiown to the people Living thereon or
The Ashford Court stated, in relevant part, “We are of the opinion
that ‘ma ke kai” is along the upper reaches of ‘the wash of waves, usually
evidenced by the eage of vegetation or by the line of debris left by the wash
Of waves(.]* “50 Wax. at 31s, 440 F.2d at 7s
a2
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in the neighbornood.” Ashford, 50 Haw. at 316, 440 P.26 at
73.."Syn ancient Havaid, the Line of growth of 2 certain
kind of tree, herb or grass sonetines made up a boundary.”
Ashford, 80 hau. et 316-17, 440 Py2d at 78.
If the boundaries are to be “known to the people
Living thereon or in the neighborhood,” reason dictates that
the boundaries could not be so evanescent as being a point
Where someone happens to observe the run up of a waver TO
the contrary, "[t]he Ashford decision was 8 judicial
recognition of longestanding public use of Hawaii’
to en easily recoanizable boundary thet has ripene:
custonary right.” Couney of Hawaii v. Sotomura, $5 Naw.
iit, Tei-182, 517 p.2d 57, 61 (1973) [emphasis oddes)
Clearly identifiable markers are necessary for » boundary to
bbe easily recognizable” and "known to the people 1iving
thereon oF in the neighborhood. stable vegetation growth
is'auen a clearly identifiable marker. Indeed, use of the
Stable vegetation line to locate the shoreline boundary is
Supported by the following statenent mage by the Naval {')i
{Sluprene (Clourt in the Sctomura case.
Thus while the debris line may change from day to day
or from season to season, the vegetation Line is a
more permanent monument, its growth limited by the ,
year's highest wash of the wares.
Sotomura, 55 Haw. at 182, 517 P.2d at 62 (footnote omitted).
In this case, the proposed certified shoreline is
properly located at the stable vegetation Line.
(Footnote omitted.) (First emphasis added and second in
original.) (Sone brackets added and some in original.)
On April 5, 2004, Plaintiffs filed their “Notice of
Appeal” and “Statemént of the Case” in the circuit court.
Stephens filed his "Motion for Judgment on the Pleadings or for
Summary Judgment” on May 18, 2004, arguing, inter alia, that
there is no conflict between the HAR and the HRS definitions of
“shoreline.” On July 23, 2004, the court filed its “order
Granting in Part and Denying in Part Appellee Carl Stephens’
Notion for Partial Sunmary Judgment.” In relevant part, the
court “affirmed that portion of the (BLNR’s] decision” in which
13
1+ FOR PUBLICATION IN WEST'S HAWA' REPORTS AND PACIFIC REPORTER *
the “[BLNR] found that there is no conflict between the
definition of ‘shoreline’ contained in (HAR § 13-222-2 and HRS §
205A-1].” Plaintiffs filed a motion to reconsider on August 16,
2004, which the court denied on Novenber 10, 2004.
on Novenber 10, 2004, the circuit court filed its
“Decision and Order Affirming Appeal,” which stated, in relevant
part
2. The Court finds that the SLNR's findings contained
in the Order Denying Appeal made after reviewing the history
of this shoreline, inciuding the prior decision in OLNR File
No. KA+O3-01, which was appealed fo this Court in Civil Ko.
0371-0122, were not clearly erroneous in view of ‘the
reliable, ‘probative, and substantial evidence on the whole
Fecord, ana therefore the Court incorporates by reference
the findings of DLR contained and referenced therein,
2. "the Court concludes that BLN’ s decision was not
in violation of any stetutory provisions contained in HRS §
208A-1 gt seae; was not made upon roles and regulations in
excess Of ite authority; was not affected by any other
errors of law; was not clearly erroneous in view of the
Eeliable, protative, and substantive evidence on the wnole
Fecord; was not arbitrary or capricious or characterized by
am abuse of discretion of clearly unwarranted exercise of
Plaintiffs filed their “Notice of Appeal” on
December 9, 2004, The circuit court’s “Judgment on Appeal” was
filed on January 11, 2005.¢
Ti, STANDARDS OF REVIEW
A. Mootness
‘The Intermediate Court of Appeals (ICA) provided a
thorough restatement of our views on the mootness doctrine in
* Although premature, Plaintiffs’ notice is considered as filed
Anmediately after the time the judgment becomes final for the purpose of
appeal. Havails Rules of Appellate Procedure, Rule 4(a)(2)
14
+++ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
McCabe Hamilton § Renny Co., Ltd. v. Chung, 98 Hawai'i 107, 43
P.3d 244 (App. 2002). There, the ICA noted:
“this court may not decide moot questions or abstract
propositions of law.” “Life of the land v, Burns, 59 Ha
Bhar 250, 580 £.24 405, 409 [1978] (citation, internal
‘tion marks and brackets omitted) «
of sea, 62 Ha
24201, 204 (1980) ("Courts will not consume’ tine
abstract propositions of law or moct cases, and ha
Sarisdiction to do so.” (Citation cmitted.)). The
Application of the sootness doctrine is weil
Tt is well-settled that the mootness’ doctrine
encompasses the circumstances that destroy the
Sustsciability of a cose previously suitable for
Geternination: A case 1s moot where the question to
be determines is abstract and does not rest on
existing facts or Fights, Thus, the mootness doctrine
ibiproperly invoked wnere “events... have so
affected the reletions between the parties that the
tho conditions for Justiclabiiity relevant on appeal
SM yoveree interest and effective renedy -- have been
compromised.”
Ince Thomas, 73 How. 223, 225-26, 632 F.2d 253, 254 (1992)
Tellipers in the original) (citing Mong, 62 Haw. at 394, 616
Pr2d st 203-4). The policy underlying the mootness doctrine
fb else well recognizes:
‘mis court will not proceed to a determination when
Ets judgment wouls be wholly ineffectual for want of &
subject matter on which it could operate. An
Riflimance woold ostensibly require senething to be
Gone which had already taken place. A reversal would
Getensibly avoid an event whieh had already passed
beyond recall. One would be as vain as the other. To
Sajudicate a cause which no longer exists is 0
Proceeding which this court uniformly nas declined to
Gntereain:
Aromplow vs Schwartz, 261 U.S. 216, 217-18 (1923) (citations
Snitted!; ee aise fons, 62 liaw. ac 394-95, 616 P.2d at 204
("ihe duty of this court, as of every other judicial
tribunal, 12 to decide actual controversies by a judgment
Which can be carries inte effect, ana not to give opinions
Spon moot questions or abstract propositions, or to declare
principles ‘or roles of law which cannot affect the matter in
Gseue in the case before it.” (Citations omitted.)).
McCabe, 98 Hawai'i at 116-17, 43 P.3d at 253-54. See also Inze
Doe Children, 105 Hawai"i 38, 56, 93 P.3d 1145, 1163 (2004)
as
*** FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER
(reaffirming that the two conditions for justiciability on appeal
are adverse interest and effective remedy).
Nevertheless, we have “repeatedly recognized an
exception to the mootness doctrine in cases involving questions
that affect the public interest and are ‘capable of repetition
yet evading review.’ Qkada Trucking Co., Ltd. v. Bd. of Water
Supply, 99 Hawai'i 191, 196, 53 P.34 799, 804 (2002) (citations
omitted). In Okada, we stated:
Among the criteria considered in determining the existence
Of the requisite degree of public interest sre the public OF
private nature of the question presentes, the desirability,
‘Of an authoritative determination for tne future guidance of
public officers, and the 1ikelinood of future rectrrence of
the question. the phrase, “cepable of repetition, yet *
evading reviow,” means thst a court will not dismiss a case
fon the grounds of moctness where a challenged governmental
action would evade full review because the passage of time
Would prevent any single plaintiff fron rensinin:
tthe restriction complained of for the period nect
complete the lawsuit,
Id. at 196-97, 53 P.3d at 804-05 (citations, quotation signals,
and block quotation format omitted) .
B.
condazy apes
3 one in which thts court must
determine wnether the circsst court was Tight or wrong. in
ies ‘decision, epplying the standards set forth in HkS'§ 31-
14g) ((1993)) £0 the agency's decision
Korean Buddhist Dac Won Sa Temple of Hawaii v. Sullivan, 87
Hawai'i 217, 229, 953 P.2d 1315, 1327 (1998) (alteration in
original) (quoting Bragg v, State Farm Mut, Auto, Ins., 61
Hawai'i 302, 304, 916 P.2d 1203, 1205 (1996)). HRS § 91-14,
16
FOR PUBLICATION IN WEST'S HAW,
"I REPORTS AND PACIFIC REPORTER
entitled “Judicial review of contested cases,” provides in
relevant part:
{g)__ Upon review of the record the court may affirm
‘the decision of the agency or renand the case with
Instructions for further proceedings; or it may reverse of
ocify the decision and order if the substantial rights of
the petitioners may have been prejudices the
Soninistrative findings, conclusions, decisions, or orders
(2) In violation of constitutional or statutory
provisions; oF
(2) Tnvexcess of the statutory authority or
jassediction of the agency; oF
(3) lade open unlaweal procedures or
(i) Afgectes by other error of law; or
(5) Clearly erfoneoss in view of the reliable,
probative, snd substantial evidence on the whole
Eecord; of
(6) Arbitrary, of capricious, or characterized by
Qbuse of discretion of clearly snwarranted
Ghereise of discretion.
“[U]nder HRS § 91-14(g), conclusions of law are reviewable’ under
subsections (1), (2), and (4): questions regarding procedural
defects under subsection (3); findings of fact under subsection
(5) and an agency's exercise of discretion under subsection
(6)." Inne Hawaiian Elec, Co, inc., 61 Hawai'i 459, 465, 918
P.2d 561, 567 (1996) (citing Outdoor Circle v. Harold KL, Castle
Trust Estate, 4 Haw. App. 633, 638, 675 P.2d 784, 789 (1983)).
Statutory interpretation is a question of law reviewable de novo.
State v, Levi, 102 Hawai'i 282, 285, 75 P.3d 1173, 1176 (2003)
(quoting State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d 843, 652
(1996).
vv
"* FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER *
TIT. — piscussron
A 2 a IAR § 13-222-2 Contra
HRS § 205A-1 defines “shoreline” as:
[The upper reaches of the wash of the waves, other than
storm and seismic vaves, at high tide during the season of
the year in waich the highest wash of the waves oocursy
Usually evidenced by the edge of vegetation growth, oF the
Upper limit of debris left by the wash of the waves.
‘The old HAR § 13-222-2 (1988) defined “shoreline” as:
[t)he upper reaches of the wash of the waves, other than
storm of tidal waves, at high tide during the season of the
year in which the highest wash of the waves occurs, usually
Seidenced by the eage of vegetation growh, of where there
nin Susiniey, the upper timtt
Of debris left by the wash of the waves
(Emphasis added.) On May 12, 2006, HAR § 13-222-2 was amended,
effective June 3, 2006, and now defines “shoreline” as:
[t]he upper reaches of the wash of the waves, other then
storm of seismic waves, at high tide during the season of
the year in which the highest wash of the waves occurs,
usually evidenced by the eoge of vegetation growh, oF the
upper Linit of debris left by the wash of the waves
The language of HAR § 13-222-2 1s now virtually identical to HRS
§ 205A-1 and no longer states a preference for the vegetation
ine.’ thus, there is no longer a justiciable controversy with
respect to Plaintiffs’ assertion that the HAR and HRS conflict.
As set forth above, this court will not hear an appeal absent (1)
adverse interests, and (2) the availability of an effective
remedy. Here, the second element is lacking because even
Although the BLNR claims that the deleted language never asserted a
preference for the vegetation line, Hashimoto testified thet, based on this
language, “[t}he vegetation line would have precedence over the debris line,”
land he considered the debris line eniy if there was no vegetation Line.
ae
FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER *
assuming this court were to agree with Plaintiffs that HRS §
205A-1 and HAR § 13-222-2 were in conflict, there is no effective
remedy available because this court will not declare an
administrative rule invalid for being in conflict with a statute
when that rule has:already been amended so that the conflict no
longer exists. Accordingly, this point of error is moot
B Certifics
‘the Interpretation of HRS € 205A-] Involves Questions That
Affect the Public Interest and Are Capable of Repetition Yet
Evading Review.
Inasmuch as the shoreline certification at issue, which
is valid only for one year pursuant to HRS § 205A~42, has
expired, there is also no effective remedy with respect to
Plaintiffs’ assertion that the BLNR incorrectly certified the
shoreline of Lot 2. We cannot vacate a shoreline certification
that has already expired. As such, this issue would appear to be
moot. However, as set forth above, we have recognized an
exception to the moctness doctrine in cases involving questions
that affect the public interest and are “capable of repetition
yet evading review.” This is such a case because: (1) the
definition of “shoreline” is certainly a matter of vast public
importance; and (2) it is virtually certain that, given that the
appeals process generally takes more than one year, any future
shoreline certification of this or any other property will expire
before the appellate process is complete, effectively frustrating
appellate review. As such, both prongs of Okada are satisfied.
1s
FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
99 Hawai'i at 196-97, 59 P.3d at 604-05. Therefore, we addrens
Plaintiffs’ point of error asserting that the Order Denying
Appeal reflects a misinterpretation of HRS § 205A-1 and Hawai‘i
case law.
€. Defining “shoreline”
Plaintiffs assert that HRS § 205K-1 and Hewai"i case
law provide that “felvidence of the ‘upper reaches of the wash of
the waves’ is gither the debris Line or the vegetation line,
whichever is further mauka.” (Exphases in original.) The BLNR
counters that “[t]here is no stated requirenent, either in the
statute or the rules, that both lines must be considered in
locating the shoreline. It is within the discretion and
expertise of the DINR to decide what is the best evidence
available that accurately reflects the location of the
shoreline.” Both the BLNR’s and Plaintiffs’ contentions have
nerit.
“upper Reaches of the Wash of the Waves”
Statutory interpretation is “a question of law
reviewable de nove.” State v. Levi, 102 Hawai'i 262, 285, 75
P.3d 1173, 1176 (2003) (quoting State v. Arceo, 84 Hawai'i 1, 10,
928 P.2d 843, €52 (1996)). ‘This court’s statutory construction
is guided by established rules
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language ss plain and
unambiguous, our sole duty is te give effect te its plain
fand obvious meaning. Third, implicit in the task of
20
++ FOR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER
statutory construction {8 our foremost ebligstion to
ascertain and aive effect to the intention of the
Fourth, wo
There is doubt, doublenesd of weaning, or indistince:veneas
or uncertainty’ of an expression used in a statute, an
anbiguity exists. “And fifth, in construing an anbiguous
Statute, the meaning of the ambiguous words aay be sought by
exsnining the context, with which the ambiguous words,
phrases, and sentences say be compared, in order to
Sscertain their true meaning. Moreover, the courts aay
Fesort to extrinsic aide in determining the legislative
intent. One avenue is the use of legislative nistory as an
interpretive tool.
Peterson v, Hawaii Elec, Light Cow, inc, 85 Hawai'i 322, 327-28,
944 P.2d 1265, 1270-71 (1997) (block quotation format, brackets,
citations, and quotation marks omitted) (emphasis added),
superseded on other arounds by HRS § 269-15.5 (Supp. 1999).
Plaintiffs’ interpretation of HRS § 205A-1 is correct
insofar as the plain and obvious meaning of the statute is that
the shoreline is determined by the highest
duos, the furthest
mauka -- reach of the waves, As the BLNR admits in its answering
brief, “(t]he main thrust of this definition is that the
shoreline is the highest point to which the waves reach on
shore.” (Emphasis added.) Indeed, the statute utilizes such
Language as “the upper reaches of the wash of the waves” and “at
high tide during the season of the year in which the highest wash
of the waves occurs.” Despite this statutory mandate, however,
the state surveyor, Hashimoto, testified that he uses the
vegetation line to determine the shoreline even if the debris
Line representing the upper wash of the waves occurs mauka of the
vegetation line. See supra Section I.B. The Order Denying
a
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
Appeal also disregarded the plain language of HRS § 205A-1, and
rejected the contention that the shoreline must be located at the
“highest reach of the highest wash of waves":
In this case there is evidence thet waves sonetines,,
y Rppeliants srgue that such
Evidence t= conclusive in showing that the proposes
Certified shoreline is erroneous, “In essence,
‘Aopelianta
Sontend that the certisies shoreline must be iocsred at the
PIERRE esis of th east
(Emphases added.) Both this paragraph and Hashimoto's testimony
are troubling insofar as they assert that the certified shoreline
could be located further makai than the actual upper reaches of
the wash of the waves. ‘This clearly is contrary to the
definition of “shoreline.” Of course, it is possible for the
certitied shoreline to be further makai than the upper reaches of
the wash of the waves if such waves were the result of storm or
tidal waves. However, to the extent that the Order Denying
Appeal suggests that, as a matter of law, the shoreline is not
demarcated by the highest point that the waves reach on shore in
non-storn or tidal conditions, the Order is erroneous.
Our decision in County of Hawaii v, Sotomura, $5 Haw.
176, 517 P.2d 57 (1973), supports the interpretation that the
shoreline should be certified at the highest reach of the highest
wash of the waves. In Sotomura, we stated’ that “[plublic policy,
as interpreted by this court, favors extending to public use and
2
‘++ FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER ***
ownership as much of Hawaii's shoreline as is reasonably
possible.” 55 Haw. at 182, 517 P.2d at 61-62. We held that
‘where the wash of the waves is marked by both a debris line and
a vegetation line lying further naukal,) the presumption is that
the upper reaches of the wash of the waves over the course of a
year lies along the line marking the edge of vegetation growth,
Id, at 182, 517 P.2d at 62.
The legislative history of HRS § 205A-1 also supports
the interpretation that the shoreline should be certified at the
highest reach of the highest wash of the waves. In 1986, the
legislature amended the definition of shoreline," adding the
following emphasized language that is currently in the statute:
“the upper reaches of the wash of the waves, other than storm or
tidal waves, at high tide during the season of the vear in which
the highest wash of the waves occurs, usually evidenced by the
edge of vegetation growth, or the upper limit of debris left by
the wash of the waves.” 1986 Haw. Sess. L. Act 258, § 2 at 469
(added language emphasized). Regarding this added language,
House Standing Committee Report No. 550-86 states:
(Your Committe
fo this Bill by
have incorporated the suggested anendnents
" i2} amending the definition of shoreline, to further
slasify the moner in which she shoreline is determined to
retest = aly
+ shoreline” was originelly defined as “the upper reaches of the wash
of the waves, ether than storm and tidal waves, Usually evicenced by the edge
Of vegetation growth, or the upper limit of debris left by the wash of the
Wevess" 1999 Haw, Sees. L. Act 200, § 1 at 416,
23
'** FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***
1986 Hse. Stand. Com. Rep. No. $$0-86, in House Journal, at 1244
(emphasis added). This clarification, which requires the
shoreline to be determined at the time when the upper reaches of
the wash of the waves would be at their highest, evinces the
legislature's intent to reserve as much of the shore as possible
to the public. Accordingly, the “upper reaches of the wash of
the waves” is the highest reach of the highest wash of the waves
in non-storm or tidal conditions. Insofar as the Order Denying
Appeal states otherwise, the circuit court erred as a matter of
law in affirming it.
‘The Vegetation Line Versus the Debris Line
The next question, then, is how to determine the upper
reaches of the wash of the waves. HRS § 205A-1 provides that the
upper wash of the waves is “usually evidenced by the edge of
vegetation growth, or the upper limit of debris left by the wash
of the waves.” Defendants defend the certified shoreline
location in the instant case by asserting that the stable
vegetation line should control because it is more permanent and
easily recognizable, stating that “reason dictates that the
boundaries could not be so evanescent as to be merely a point
where someone happens to observe the run up of a wave.” To the
extent that Defendants are contending that the vegetation line
should always be preferred over the debris line, we disagree.
24
‘OR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER.
First, the plain language of the statute does not
indicate a preference for the vegetation line or the debris line.
Rather, the statute merely states that both lines are usually
evidence of the shoreline. Thus, it is not within the province
of this court to hold that the vegetation line should trump the
debris line as a matter of law. State v. Mever, 61 Haw. 74, 77,
595 P.2d 288, 291 (1979) (noting that “{e]ven where the Court is
convinced in its own mind that the Legislature really meant and
intended something not expressed by the phraseology of the Act,
it has no authority to depart fron the plain meaning of the
language used”) (quoting Queen v, Sen Tana, 9 Haw. 106, 108
(1893)).
Second, the legislative history of HRS § 205-1
supports the contention that there should not be 2 preference for
the vegetation line. The initial statutory definition of
“shoreline,” as enacted in 1975, read as follows:
“shoreline” means the Line at the seashore along the upper
Teaches of the wash of the waves, Usually evidenced by the
Yepetation line ot, $f there iz no vegetation line, then by
Gebris left by the wash Of the waves.
1975 Haw. Sess. L. Act 176, § 1 at 386 (emphasis added). The
plain meaning of the statute, as it then read, was that if there
was evidence of both 2 vegetation line and a debris line, the
vegetation line controlled, and the debris line needed to be
25
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
considered only if there was no vegetation line.’ This
preferential language, however, was deleted in 1979. 1979 Haw.
Sess. L. Act 200, $1 at 416. Had the legislature intended the
vegetation growth to prevail over other evidence of the highest
wash of the waves, it could have kept the language expressing
Preference for the vegetation. It did not, however, and we
decline Defendants’ invitation to so interpret the current
statute.
Third, contrary to Defendants’ assertions, Sotomura
does not stand for the proposition that the shoreline should be
certified along the stable vegetation line in all cases. Ia
Sotomura, we stated:
The Ashford decision was 2 judicial recognition of
long-standing public use of Hawaii's beaches te an easily
recognizable beundary that hae ripened inte a custceary
Hight. chy 254 OF. 564, 462
P.dd én." (ises). public policy, aa interpreted ey emis
court, favors extending to public se and ownership #3
much Of Nawaii's shoreline as ie reasonably possible
The trial court correctly determined that the seaward
boundary lies along "the Upper reaches of the mash of
waves.” liowever the court erred in locating the boundary
long the debris line, rather than along the vesetstion
Line:
Ye hold as @ matter of law that where the wash of the
waves 1s marked by both a debris line and a vegetation Line
Lving further naukal,| ‘the presumption ie that the upper
Teaches of the wash Of the waves over the course of «year
ies olong the Line marking the edge of vegetation growth
The upper reaches of the wash of the waves st high fide
during one season of the Year may be further mauve than the
upper reaches of the wash of the waves at high tide during
the other seasons. Thus while the debris line may change
+ Indeed, this is the preferential language that was used in the old
WAR § 13-222-2, which Hashimoto testified he interpreted as neaning that
Twhere there is a sandy beach the edge of vegetation growth is the preferred
means for determining the location of the shoreline.”
26
+#** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER
from day to day of from season to season, the vegetation
Line ie a nore permanent monument, its growth limites by the
year's highest wash of the waves.
55 Haw. at 181-82, $17 P.2d at 61-62 (footnote omitted) (emphasis
added). The language of Sotomura would, at first glance, appear
problematic inasmuch as it supports both Plaintiffs’ and
Defendants’ positions. Indeed, the Sotomura decision located the
shoreline along the vegetation line because it was more mauka and
more stable. However, a careful reading of Sotomura makes clear
that the vegetation line was not intended always to trump the
debris line. The Sotomura decision clearly favored the public
policy of extending “as much of Hawaii's shoreline as is
reasonably possible” to public ownership and use. Although the
decision acknowledged that the vegetation line is 2 “more
permanent monument,” based on the legislative intent and public
policy favoring shoreline access, that statement is best read as
merely supporting the court’s decision to use the most mauka
line. Indeed, as evidenced by the facts of the present case,
vegetation is not always permanent, and there is no indication
that the decision in Sotomura contemplated owners planting and
promoting salt-tolerant vegetation. See infra Section T11.c.3.
‘Thus, to the extent that Defendants rely on Sotomura as setting
forth a per ge rule establishing the primacy of the vegetation
line, such reliance is misplaced. Accordingly, insofar as the
BLNR’s Order and Order Denying Appeal condone such a per se rule,
they are erroneous.
2
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **
3. "Vegetation Growth”
The final issue raised by Plaintiffs is the definition
of the “vegetation growth” that can be evidence of the shoreline.
Although HRS chapter 205A does not define “vegetation growth,”
HAR § 13-222-2 defines it as “any plant, tree, shrub, grass or
groups, clusters, or patches of the same, naturally rooted and
arowing.” (Emphasis added.) Plaintiffs argue that the planting
and irrigation of salt-tolerant plants by Stephens in July or
August 2000 was an “attempt to establish a false vegetation
line.” As such, Plaintiffs contend, “the artificial vegetation
Line relied upon by the Esaki survey and certified by the state
can not [sic] and does not represent the highest wash of the
waves, and therefore does not represent the correct shoreline
pursuant to HRS [§) 205A-1, gt, seq.” (Emphases in original.)
In reply, Defendants assert that, notwithstanding the fact that
the vegetation was originally planted and irrigated by human
activity, such vegetation was “naturally rooted and growing”
because it had survived more than one year without human
intervention, and it could therefore be utilized in determining
the location of the shoreline. We agree with Plaintiffs.
Generally, an administrative agency's interpretation of
@ rule that it is responsible for implenenting is accorded great
weight. Camara v, Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797
(1964). However, “[t]o be granted deference, . . . the agency's
28
{++ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER ***
decision must be consistent with the legislative purpose.” Idi
see also in re Water Use Permit Applications, 94 Hawai'i 97, 145,
9 P.3d 409, 457 (2000) ("[W]e have not hesitated to reject an
incorrect or unreasonable statutory construction advanced by the
agency entrusted with the statute's implementation.”). one of
the objectives of HRS chapter 205A is to “[p]rotect beaches for
public use and recreation(,]” HRS § 205A-2(b) (9) (2001), and two
of its policies are to:
(A) tocate new structures inland from the shoreline
minimize inte:
beck to conserve open spa
with natural shoreline proce:
Sxprovenents due to erosion:
(s) Prohibit construction of private erosion-protection
Structures seaward of the shoreline, except when they
Fesuit in smproved aesthetic and engineering solutions
ES’erosion at the sites and do not interfere with
existing recreational and vaterline activities(.J
HRS § 205A-2(c) (9) (2001). Additionally, as mentioned above, we
have recognized that “[p]ublic policy . . . favors extending to
public use and ownership as much of Hawaii's shoreline as is
reasonably possibl
” Sotomura, 55 Haw. at 182, 517, P.2d at 61-
62. The utilization of artificially planted vegetation in
‘determining the certified shoreline encourages private land
owners to plant and promote salt-tolerant vegetation to extend
their land further makai, which is contrary to the objectives and
policies of HRS chapter 205A as well as the public policy we set
forth in Sotomura. Merely because artificially planted
vegetation survives more than one year does not deem it
“naturally rooted and growing” such that it can be utilized to
29
*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
TR BLICATIONIN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
determine the shoreline. We therefore reconfirm the public
policy set forth in Sotomura and HRS chapter 205A and reject
attempts by landowners to evade this policy by artificial
extensions of the vegetation lines on their properties.
wv. cu:
HRS § 20SA~1 defines “shoreline” as:
(ane upper reaches of the wash of the waves, other than
s80Em and seisnic waves, at high tide during the seascr of
the year in which the highest wath of the naves ose”
usually evidenced by the edge of vegetation growth, ce’ the
upper Limit of debris left by the wash of the waves,
In this ca
despite the above statutory mandate for
determining the shoreline, the Order Denying Appeal explicitly
rejected the placement of the shoreline at the highest wash of
the waves during high season. See supra Section i11.C.1.. the
Order Denying Appeal was therefore erroneous as a matter of lav,
and the circuit court erred in affirming it. We therefore
Feverse the circuit court’s January 11, 2005 final judgment.
on the bries:
Harold Bronstein,
for plaintiffs-appellants
Caren Diamond and Harold
Bronstein
Sonia Faust and Linds Let.
Chow Copsey netsenees
General, for defencase-appellee Sanat Oraetayor
State of fowal'is Somes
and and Natasa! eemet of
A. Bernard Bays and Michael c.
Carroll (of Bays, Deaver, Lung, Yenc
Rose & Baba) for’ defendant- Rallis th
appellee Carl stephens
30
|
97490f05-fa12-4975-a804-f17d96bc0849 | State v. Kupahu | hawaii | Hawaii Supreme Court |
LAW LIBRARY
no. 26580
SUPREME COURT OF THE STATE OF HAWAT'I
£f-Appelle
STATE OF HAWAT'T, Respondent /Plai
ors
g
CERTIORARI TO THE INTERMEDIATE COURT OF AP?
(CR. NO. 03-1-2083)
&
(By: Acoba, J., for the court)
It appearing that the judgment on appeal in the above~
referenced matter has not been entered by the Intermediate Court
of Appeals, see Hawai'i Revised Statutes § 602-59/a), as amended
by Act 149 of the 2006 Hawai'i Session Laws; gee also Hawai'i
Rules of Appellate Procedure (HRAP) Rule 36(b) (1) (2006),
IT IS HEREBY ORDERED that petitioner/defendant-
appellant Robert Kuhio Kupahu’s application for writ of
certiorari, filed September 18, 2006, is dismissed without
prejudice to re-filing the application pursuant to HRAP Rule
40.1(a) (*No later than 90 days after the filing of the
intermediate court of appeals’ judgment on appeal or dismissal
order, any party may apply in writing to the supreme court for a
writ of certiorari.").
DATED: Honolulu, Hawai'i, Septenber 19, 2006.
cynthia A. Kagiwada FOR THE COURT:
for petitioner/
defendant-appeliant
on the application
Associate Justice
Court: Moon, C.J., Levinson, Nakayama, Acoba, and Ouffy,
|
b3c6d773-e926-4dbb-9941-ec77fb4aa6d5 | Preble v. Board of Trustees of the Employees Retirement System of the State of Hawaii | hawaii | Hawaii Supreme Court | #4 NOT FOR PUBLICATION in WEST’ S HAWAI'I REPORTS
‘and PACIFIC REPORTER *** 2|
No. 25714
WY 02 das soa
gawd
DUANE PREBLE, MARION EVERSON, and CHARLES K.
Plaintiffs-Appellants,
BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM OF
THE STATE OF HAWAI'I; DAVID SHIMABUKURO, Administrator of the
Employees’ Retirement System of the State of Hawai'i; and
EMPLOYEES’ RETIREMENT SYSTEM OF THE STATE OF HAWAT'L,
Defendant s-Appeliees.
APPEAL FROM THE FIRST CIRCUIT COURT
(Civ. No. 02-1-1972)
RDF
(gy: Moon, ¢.J., Levingon, Nakayama, and Acoba, JJ., and
Circuit Judge Masuoka, assigned by ‘reason of vacancy.)
The plaintiffs-appellants Duane Preble, Marion Everson,
and Charles x. ¥. Khim (hereinafter, “the Appellants”) appeal
from the March 12, 2003 judgnent of the circuit court of the
first circuit, the Honorable Virginia Lea Crandall presiding.
on appeal, the Appellants urge that the doctrine of
primary jurisdiction did not apply to the present matter inasmuch
as (2) “the dispute before the [circuit clourt did not involve
technical matters that called for the special expertise of the
[defendant-appellee Board of Trustees (“the Board”) of the
defendant-appellee Enployees’ Retirenent System of the State of
Hawai'i (ERS)]," and (2) “the . . . Board already applied its
special expertise to the gravamen of the contested case claim{)
### NOT FOR PUBLICATION in WEST’ S HAWAI'I REPORTS
and PACIFIC REPORTER ***
when[,] on February @, 1999, the . . . Board determined that said
contested case claim had merit.” The Appellants add that the
Board should have been disqualified from deciding the Appellants’
entitienent to fees because it is biased or had the appearance of
bias. Furthermore, the Appellants protest that to exhaust
available remedies in the Board would have been futile.
Next, the Appellants argue that the circuit court
misapplied the criteria for injunctive relief pendente lite set
forth in v, Transp, Lease Hawaii, Ltd., 2 Haw. App. 272, 276
& nil, 630 P.2d 646, 649 & n.1, 650 (1982), inasmuch as
irreparable damage favored injunction, the Appellants were likely
to succeed on the merits, and the public interest would be
served.
Finally, the Appellants argue that the Board improperly
appointed a master to conduct a hearing. (Citing Hawai'i Revised
Statutes § 92-16(a) (3) (1993).
The present appeal arises from the Appellants’ efforts
to enjoin further pension disbursements without deducting
attorney's fees. Our recent holding in Preble v. Bd. of Trs. of
the ERS, No. 26186, slip op. at 18 (Haw. Sept. 20, 2006), that
the Board lacked the authority to award fees, bars the Appellants
from obtaining “effective remedy” in the present appeal, a sine
gua non of justiciability. See In re Doe, 102 Hawai'i 75, 77, 73
P.3d 29, 31 (2003). Therefore,
‘#** No FOR PUBLICATION in WEST’ S HAWAI'I REPORTS
and PACIFIC REPORTER ***
IT IS HEREBY ORDERED that the appeal is dismissed
as moot.
DATED: Honolulu, Hawai'i,
on the briefs:
Charles K. Y. Khim,
pro se and for the
plaintiffs-appellants
Duane Preble and
Marion Everson
Kevin P.H. Sumida and
Lance $. Au of Matsui
Chung Sumida & Tsuchiyama,
for the defendants-appellees
ERS and David Shimabukuro
Kimberly Tsumoto,
Deputy Attorney General,
for the defendant-appellee
Board of the ERS
September 20, 2006.
DerGbrinre—
Preset Oi One
2
Learpes
A
aa
fessor
|
d473471c-9d05-41dc-8495-1b424f2d8dfa | State v. Munar | hawaii | Hawaii Supreme Court | **% Nom FOR PUBLICATION in WEST'S HAWAT'T REPORTS
and PACIFIC REPORTER ***
No. 25917
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Plaintiff-Appellant, 3
ve. a: &
WESLEY J. MUNAR, Defendant-Appellee. x:
APPEAL FROM THE FIRST CIRCUIT COURT
(Cr. No. 02-1-2854)
SUMMARY DISPOSITION ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
(By:
‘The plaintiff-appellant State of Hawai'i (hereinafter,
“the prosecution”) appeals from the June 10, 2003 judgment of the
circuit court of the first circuit, the Honorable Karl K.
Sakamoto presiding.
On appeal, the prosecution contends that the circuit
ppellee Wesley J. Munar
court erred in sentencing the defendant
to probation in Cr. No. 02-1-2854, pursuant to 2002 Haw. Sess. L.
Act 161, § 3 at 572 (codified as Hawai'i Revised Statutes (HRS)
§ 706-622.5 (Supp. 2002)), rather than to a mandatory minimum
term of imprisonment, pursuant to HRS § 706-606.5 (Supp. 1999),
inasmuch as: (1) HRS § 706-606.5 trumps HRS § 706-622.5 in
situations involving repeat offenders; and (2) Munar’s prior
conviction for unauthorized control of a propelled vehicle, in
violation of HRS § 708-836 (Supp. 2001) (Cr. No. 01-1-2639),
mandated that he be sentenced as a repeat offender.
pen 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 conclude that
‘#*# NOT FOR PUBLICATION in WEST’ S HAWAI'I REPORTS
and PACIFIC REPORTER ***
this court’s decisions in State v. Smith, 103 Hawai'i 228, 81
P.3d 408 (2003), and State v. Walker, 106 Hawai'i 1, 100 P.3d 595
(2004), are entirely dispositive of the present matter.
In Smith, “we h{e}ld that, in all cases in which HRS
$ 706-606.5 is applicable, including those in which a defendant
would otherwise be eligible for probation under HRS § 706-622.5,
the circuit courts must sentence defendants pursuant to the
provisions of HRS § 706-606.5.” 103 Hawai'i at 234, 81 P.3d at
aa.
Effective July 1, 2004, the legislature anended HRS
§ 706-622.5. See 2004 Haw. Sess. L. Act 44, $§ 11 and 33,at 214,
227. In our November 4, 2004 published opinion in Walker, we
considered the effect of Act 44 upon the Smith rule. We
concluded (1) that Smith remains consonant with the legislature's
stated purposes in amending HRS § 706-622.5, and (2) that, in any
case, the legislature expressly provided that Act 44 does not
apply retroactively to any “cases involving ‘rights and duties
that matured, penalties that were incurred, and proceedings thet
were begun, before [the] effective date [of Act 44],’ i.e., July
2, 2004." See 106 Hawai'i at 4 6 n.5, 100 P.3d at 598 6 nS
(brackets in original).
In sum, the primacy of HRS § 706-606.5 vie-A-vie HRS
§ 706-622.5 has been established. In his appeal, Munar fails to
demonstrate any flaws in this court's reasoning in either smith
or Walker justifying revisiting the holdings of those opinions.
‘Therefore,
‘** NOT FOR PUBLICATION in WEST’S HAWAI'I REPORTS
‘and PACIFIC REPORTER *
IT IS HEREBY ORDERED that the portion of the circuit
court’s judgment sentencing Munar pursuant to HRS § 706-622.5 is
vacated, and we remand this matter to the circuit court for
resentencing in accordance with the provisions of HRS
§ 706-606.5.
DATED: Honolulu, Hawai'i, September 26, 2006.
on the briefs:
Mangmang Qiu Brown,
Deputy Prosecuting Attorney,
for the plaintiff-appellant
Seaee of? naval .
Phyllis J. Hizonake, Pinte
Seputy Public Defender,
for the defendant appellee Bete OS Naeaney Oe
fayne J. muna ay
Yon ducgi
|
d9e80431-204a-44bd-a209-45affc776dd3 | State v. Lee | hawaii | Hawaii Supreme Court | *** NOT FOR PUBLICATION in WEST’S HAWAI'I REPORTS
and PACIFIC REPORTER ***
No. 26013
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Plaintiff-Appellant, 2)
k
ong
OSMUND Y.H. LEE, Defendant-Appellee.
APPEAL FROW THE FrRsT ciacurT court “g|°
(er. No. 031-0168) 5
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
1-O1KY 92 43s some
a
(By:
The plaintift-appellant State of Hawai'i [hereinafter,
“the prosecution”) appeals from the July 16, 2003 judgment of the
circuit court of the first circuit, the Honorable Derrick H.M.
Chan presiding.
on appeal, the prosecution contends that the circuit
court erred in sentencing the defendant-appellee Osmund Y.H. Lee
to probation in Cr. No. 03-1-0164, pursuant to 2002 Haw. Sess. L.
Act 161, § 3 at 572 (codified as Hawai'i Revised Statutes (HRS)
§ 706-622.5 (Supp. 2002)}, rather than to 2 mandatory minimun
term of inprisonnent, pursuant to HRS § 706-606.5 (Supp. 1999),
inasmuch as: (1) HRS § 706-606.5 trumps HRS § 706-622.5 in
situations involving repeat offenders; and (2) Lee's prior
convictions for theft in the second degree, in violation of HRS
§ 708-€21(1)(b) (Supp. 1998) (Cr. No. 01-1-0659), and for the
unauthorized control of a propelled vehicle,
0-1-0656), mandated that he be
in violation of HRS
§ 708-836 (Supp. 2001) (Cr. No.
sentenced as a repeat offender.
aa
*#* NOT FOR PUBLICATION in WEST'S HAWAI'I REPORTS
and PACIFIC REPORTER *#*
Upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we conclude that
this court's decisions in State v. Smith, 103 Hawai'i 228, 81
P.3d 408 (2003), and State v, Walker, 106 Hawai'i 1, 100 P.3d 595
(2004), are entirely dispositive of the present matter.
In Smith, “we h[e]id that, in all cases in which HRS
§ 106-606.5 is applicable, including those in which a defendant
would otherwise be eligible for probation under HRS § 706-622.5,
the circuit courts must sentence defendants pursuant to the
provisions of HRS § 706-606.5." 103 Hawai'i at 234, 81 P.3d at
a
Effective July 1, 2004, the legislature amended HRS
§ 706-622.5. See 2004 Haw. Sess. L. Act 44, $5 11 and 33 at 214,
227. In our November 4, 2004 published opinion in Walker, we
considered the effect of Act £4 upon the Smith rule. we
concluded (1) that Smith remains consonant with the legislature's
stated purposes in amending HRS § 706-622.5, and (2) that, in any
case, the legislature expressly provided that Act 44 does not
apply retroactively to any “cases involving ‘rights and duties
that matured, penalties that were incurred, and proceedings that
were begun, before [the] effective date (of Act 44],” ive, July
1, 2004.” See 106 Hawai'i at 4 & n.$, 100 P.3d at 598 & n.5
(brackets in original).
In sum, the primacy of HRS § 706-606.5 vis-a-vis HRS
§ 706-622.5 has been established. Therefore,
NOT FOR PUBLICATION in WEST’ S HAWAI'I REPORTS
and PACIFIC REPORTER ***
TT IS HEREBY ORDERED that the portion of the circuit
court’s judgment sentencing Lee pursuant to HRS § 706-622.5 is
vacated and we remand this matter to the circuit court for
resentencing in accordance with the provisions of HRS
§ 706-606.5.
DATED: Honolulu, Hawai'i, September 26, 2006.
on the briefs:
Mangmang Qiu Brown, frre —
Deputy Prosecuting Attorney,
for the plaintiff-appellant ae
State of Hawai'i
Jeffrey T. Arakaki,
for the defendant-appellee Pte rete
Osmund Y.H. Lee
I—\
Came adage
|
2765d588-b246-48c3-b7c6-d3d26a104dce | State v. Pyle | hawaii | Hawaii Supreme Court | ‘** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
No. 25921
IN THE SUPREME COURT OF THE STATE oF uAWAgEl..
64.435,
crate oF whnr, Flowtitiappeniee,
vs. ri 3
ROBERT C. PYLE, JR., Defendant-Appellant.-
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(HPD TRAFFIC NO. 002501869)
SUMMARY DISPOSITION ORDER
inson, Ni Aco}
and Duffy, 33.)
(By: Moon, C.J,
Defendant-Appeliant Robert C. Pyle, Jr. (“Robert”)
appeals from the judgment of the District Court of the First
Circuit (“district court”) filed on October 20, 2003, the
Honorable Judge Michael Marr presiding. At trial, Robert was
found guilty of operating @ vehicle under the influence of an
Antoxicant (“OVUII") in violation of Hawai'i Revised Statutes
(OMRS") § 2918-61 (a) (1) (Supp. 2002).*
On appeal, Robert asserts that the district court erred
by: (1) allowing the witness-officers of the Honolulu Police
Department (“HPD”) to testify as to “clues,” “results,” and
“failure” of Robert's field sobriety test (“FST”); (2) allowing
HPD Officer Brandon Yamamoto to testify as to the contents of the
+ uns § 2918-61(a) (1) (Supp. 2002), the version in effect at the
tine of Robert's arrest, reads:
(a) A person commits the offense of operating a vehicle under the
influence of sn intoxicant if the person operates or assumes
actual physical control of a vehicle:
(2) mile under the infivence of alcohol in an amount
sufficient to impair the person's normal Faculties or
ability to care for the person and guard against casualty.
qa
[NOT FOR PUBLICATION IN WEST'S HAWAlI REPORTS AND PACIFICREFORTER
National Highway Transportation Safety Administration (*NHTSA”)
manual in the absence of having the manual itself admitted into
evidence or made available to the defense, thereby violating the
best evidence rule, Hawai" Rules of Evidence (HRE) Rule 1002
(3993)? (3) improperly taking judicial notice that red, glassy
and watery eyes are indicia of intoxication; and (4) finding
sufficient admissible evidence to convict Robert of ovUrT.
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, and addressing
Robert's best evidence rule and judicial notice arguments first,
we hold a follow
(2) The district court did not violate the best
evidence rule, because the prosecution expressly stated in
response to defense objection that it was not offering to prove
the contents of the NETSA manual. Indeed, the district court
expressly gave its rationale for overruling the defense
objection, stating that ". . . . these are all... .
tion: ns as to wl obvious) [vas
Jed) to believe defendant was intoxicated.” (Emphases added.)
Thus, the court made clear that it was only allowing
the testimony as to the NHTSA manual for foundational purposes,
and not to prove its contents. Cf. State v. Vliet, 91 Hawai’
288, 298, 983 P.2d 189, 199 (1999) (“this was a bench trial, and
it is well established that judge is presumed not to be
influenced by incompetent evidence(}” (citation omitted)
* MRE Rule 2002 provides in pertinent part: “(t]e prove the content
of a writing... the original writing is requires ss
2
+ NOT_ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
(internal quotation marks omitted) ).
(2) The district court did not err in taking judicial
notice of “glassy, red, watery eyes” as indicia of intoxication.
While we have not expressly judicially noticed “glassy, red,
watery eyes” as indicia of intoxication, this court and the
Intermediate Court of Appeals have frequently found an
association between this physical symptom and intoxication. See
f.g., State v, Dow, 96 Hawai'i 320, 325-26, 30 P.3d 926, 931-32
(2001) (holding that lay testimony as to defendant's “bloodshot
eyes and an attendant odor of alcohol” could be use to
“corroborate a factual inference” that defendant’s blood alcohol
content level was 0.19, rather than .0019)7 Viset, 91 Hawai'i at
293, 983 P.2d at 194 (finding that police officer
testimony
that defendant had “red and glassy” eyes and an odor of alcohol
on his breath, inter alia, constituted sufficient evidence for a
reasonable fact-finder to conclude that defendant was DUI); State
ve Nishi, 9 Haw. App. 516, 524, 852 P.2d 476, 481 (1993)
(impliedly recognizing defendant's “red glassy bloodshot” eyes as,
substantial evidence to sustain his DUI conviction); State v,
Mitchell, 94 Hawai'i 388, 399, 15 P.3d 314, 325 (App. 2000)
("[t}he testimonies of the police officers painted a classic
th was redolent of
portrait of intoxication. Mitchell's br
alcohol. His speech was slurred. His eves were red, bloodshot
anduatery. . . .” (emphasis added)); and State v. Ferrer, 95
Hawai'i 409, 431, 23 P.3d 744, 766 (App. 2001) (deferring to
district court's finding that defendant’s red eyes and odor of
alcohol on his breath, inter alia, constituted probable cause to
arrest him for DUI).
‘++ NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
Moreover, as in the afore-cited cases, evidence of
Robert's “glassy, red, watery eyes” was not viewed in isolation:
in the instant case, both police officers at the accident scene
who observed Robert also noted his slurred speech, to which no
defense objection was made, and the “strong” odor of alcohol on
his breath. We also note that the district court carefully
considered the “totality of circumstances” in making its ruling.
Thus, we are unconvinced that the district court exceeded the
bounds of reason in taking judicial notice of “glassy, red,
watery eyes” as indicia of intoxication.
(3) Assuming arauendo that the district court erred in
admitting all testimony specifically relating to Robert's FST,
following sedulous review of the record, such errors were
harmless in Light of the overwhelming and compelling evidence
tending to show beyond a reasonable doubt that Robert vas under
the influence of alcchol in an anount sufficient to impair his
ability to guard against casualty; thus, there is no reasonable
possibility that the FST-related evidence contributed to Robert's
conviction. See State v. Tovomura, 80 Hawai'i 8, 27, 904 P.2d
293, 912 (1996); State v. Kaiama, 61 Hawai"! 15, 22-23, 911 P.2d
738, 742-43 (1996); HRS § 2918-61 (a) (1). Of particular note is
the district court’s express ruling that all of the FST subtests
(the horizontal gaze nystagmus test, the ‘walk and turn” test,
and the “one leg stand” test) were considered only “minor
factors” in its “totality of circumstances” analysis.
(4) Finally, in light of our holding that overwhelming
and compelling evidence exists on the record such that any error
committed by the district court in accepting and considering
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
Ancompetent evidence is rendered harmless, a fortiori, we hold
that there is more than substantial evidence to uphold Robert's
OVvUII conviction.
P.2d 87, 61 (1996).
affirmed.
As such,
‘Therefore,
See State v. Pastman, 81 Hawai'i 131, 135, 913
Robert's OVUII conviction is
IT IS HEREBY ORDERED that Robert’s OVUIT conviction is
affirmed.
DATED: Honolulu, Hawai'i,
on the briefs:
Earle A. Partington for
defendant-appellant
Mark Yuen, Deputy
Prosecuting Attorney,
for plaintitf-appel.
September 29, 2006.
ona e. Oodtss -
|
21a5eb40-7d25-4d3b-adf7-e7c6d3626ecb | State v. Thomas | hawaii | Hawaii Supreme Court | ‘++ NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER **
No. 25554
IN THE SUPREME COURT OF THE STATE OF HANAT'T
STATE OF HAWAI'I, Plaintiff-Appellee,
ve. Bax
RICHARD THOMAS, Defendant-Appellant. £5
APPEAL FROM THE DISTRICT COURT OF THE FIRST cared 7
(HED CR. NO. 02307339)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Defendant-appellant Richard Thomas [hereinafter
~thomas”], appeals from the district court's! November 26, 2002
judgment convicting him of the offense of harassment, in
violation of Hawai'i Revised Statutes [hereinafter “HRS”] § 711-
1106(2) (a) (Supp. 2002).? On appeal, Thomas presents the
following two points of error: (1) the district court’s findings
of fact were clearly erroneous, and its conclusion of law,
adjudging him guilty of the charged offense, was wrongs and (2)
the prosecution failed to adduce sufficient evidence to overcome
the presumption of innocence to which he was constitutionally
entitled.
lear who presided. The lower court record indicates that
tthe Honorable Michael Marr presided at the Novenber 26, 2002 trial. However,
the tranceript of the Novenber 26, 2002 proceedings indicates thet the
Honorable Lawrence R. Cohen preside
+ RS § 721-1106(2) 1a) provides a follows
the offense of
[am any other
6711-1206 Harasement. (1) A person commit:
harassment if, with intent to harass, annoy, oF
person, that person:
(a) strikes, shoves, kicks, or otherwise touches ancther
person in an offensive manner or subjects the other
Berson to offensive physical contact|.]
nats
+ NOT _FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
upon carefully reviewing the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold that:
(2) A review of the challenged findings of fact reveal
that they are determinations of credibility. Accordingly, it is
sufficient that we have repeatedly endorsed the maxim that the
reconciliation of conflicting witness testimony is beyond the
scope of appellate review.’ Even assuming, arauendo, that this
court may overturn a trial court's credibility determination
based upon a demonstration, by clear and convincing evidence,
that the credibility determination was incorrect,‘ Thomas has
(veut *[i)t ie well-settled that an eppellate court will not pass ‘upon issues
Gependent upon the credibility of withesses and the weight of the evidence;
this is the province of the trier of fect.'*) (Brackets in original.)
(Citations omitted.) Skate v, Martines, 101 Hawai'i 332, 340, 68 F.3d 606,
G14 (2003) ("It ie well-settlea thet an eppellate court ‘will ‘not pass upon
iseues dependent upon the credibility of witnesses and the weight of evidences
this is the province of the trier of fact.*) (Citations omitted.)) State v
Mitenela, "96 Hawas's 366, 393, 15 P-3d 314, 319 (App. 2000) (The appell
Court will neither reconcile conflicting evidence nor interfere with tl
Gecision of the trier of fact bases on the witnesses’ credibility or the
weight of the evidence.) (Citations omltted.); amfac, Inc. v, Waikiki
ison, 34 Haw, 8S, 217, 639 P.24 10, 26 11992) (Horeaver,
“fain appellate court will not pase upon issues dependent upon credibility of
witnesses end the weight of the evidence; this is the province of the trial
Jusge.’") “(rackets in original.) (Citations omitted. ).
> See Fisher v, Fisher, 111 Mawas't 42, 46, 137 P.34 355, 360 (2006)
+ thomas suggests thet the categorical preclusion of credibility
Seques ie a violation of this court's cbligation to afford him due process on
However, that mere assertion, without invoking the proper due proces!
fo trigger this court's jugicis! machinery.
cited in support of his due process challenge is the
United States Suprene Court's decision in Miller-E v. Cockrel], 537 U.S. 322
(2003). in Miijerstl, the Court reviewed 8 crininel defendent’s claim that
the prosecution's exercise of its peremptory challenges was racially
fotivated, Id. at 326. The Court stated that “inpisveible or fantsstic
Justiticatsone nay (and probably will) be found to be pretexts for purposeful
Gsecriminstson(,]” id. at 339 (citation omitted), ond that “the iseue cones
down te whether the tial court finds the prosecuter’s race-nevtral.
explanations to be crecible.” Id. (emphasis added). The Court continued:
Deference is necessary because @ reviewing court, which
(eéontinved. ..)
"+ NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **
failed to make the requisite showing.
(2) Viewed in the light most favorable to the
prosecution,* the evidence is that (a) Thomas tailgated the
complaining witness from Kunia Road to the Kapolei police
station, (b) Thomas grabbed the complaining witness and pinned
scontinued)
‘snelyzes only the traneeripts from yoir dire, is not as well
positioned as the trial court is to make credibility
Beterminations. “[1]f sn appellate court accepts a trial court's
finging thet a prosecutor's race-neutral explanation for his
Derenptory challenges should be believed, we fail to see how the
Sppeliace court nevertheless could find discrimination. The
ePesibiiity of the prosecutor's explanation goes to the heart of
fhe equal protection snalysis, and once that has been settled,
there seems to be nothing left to review.”
Ed, at 239-340 (citing Hernando: v.tew York, $00 U.S. 352, 367 (1991)
{plurality opinton)) (brackets in original).
Nevertheless, the Court reascne
Jbandoment of sbdieation of Judiciel review,” id. et 340, and that “(a
federal coure can disagree with a gtate court's credibility determination end
‘Conclude the decision wae unressonable or that the factual prenise wi
Incorrect by clear and convincing evidence.”
‘Thomas construes MillersEl as requiring this court to r
che district court’s credibility determinations and overturn then if
be incorrect by clear and convincing evidence. However, Thomas has failed to
Clee any legal sutherity of make any discernible argument explaining how the
foregoing federel precedent binds this court. Thomas also fails to explain
hows vin light of Milereel, hie due process Tights have been violated. See
Hewoi'i Rules of Appellate Proceduze [hereinafcer “HRAP") Rule 28 (b) (4) (2002)
(Spointe not presented. will be Gieregerded.”); HRAP Rule 26(b) (7) (2002)
(Pointe not sxgued nay be deemed waived."
thet “deference does not inply
+ an State v, Viglielme, 105 Hawai'i 197, 202-03, 95 P.3d 952, 958
(2004) (quotation marke omitted) {citations omitted) (brackets in original),
we stated that
evidence adduced in the trial court must be considered in the
Slrosgest light for the prosecution when the sppellate court
passes cn the legal sufficiency of such evidence to support
Eonviction; the same stendard applies whether the case was before
S judge or # Jury. The test on eppeal is not whether guilt is
Gsteblished beyond 2 reasonable doubt, bat wnether there was
Substantial evidence te support the conclusion of the trier of
f intel evidence as to every material elenent of the
ged is credible evidence which is of sufficient
Quelity and probative velue to enables [person] of reasonable
Gavtion to support = conclusion.
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *
her against her car, (c) Thomas cursed at the complaining witness
and struck her in the right eye, and (é) although ancther witness
was in the parking lot during the incident, she was unaware of
the incident having been preoccupied with either unloading her
telephone books and/or supervising her children. Accordingly,
the record contains sufficient evidence supporting Thomas’
conviction of the offense of harassment, in violation of HRS §
721-1106(2) (a). Therefore,
IT IS HEREBY ORDERED that the district court's
November 26, 2002 judgment is affirmed.
DATED: Honolulu, Hawai'i, September 27, 2006.
on the briefs:
James S. Gifford, Deputy
Public Defender, for
defendant -appel lant
Richard Thomas
James M. Anderson, Deputy Hp Lriser
Prosecuting Attorney, for
pleintiff-eppelice Baseuee Nace eeree
State of Hawai'i
Var €. Baliye Oh +
|
bfc26c14-3bbe-41f5-a4ce-78a9a412fe2f | Abaya v. Mantell. S.Ct. Order Denying Motion for Reconsideration, filed 11/13/2006 [pdf], 112 Haw. 436. | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION ***
in West’s Hawai‘i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
00
JOCELYN ABAYA, Individually and as Next Friend of
WILLIAM PINEDA-ABAYA, CZARINA PINEDA-ABAYA, and
PHOEBE PINEDA-ABAYA, and as Special Administrator of
the ESTATE OF WILLIS ABAYA, Plaintiffs-Appellees,
RICHARD MANTELL aka RICHARD MANDELL and
TEAM HEALTH WEST, Defendants-Appellees.
AMERICAN CLASSIC VOYAGES, CO., Party in Interest-Appellant.
No, 27195
APPEAL FROM THE FIRST CIRCUIT COURT
(crv. No. 03-21-0592)
ocToBER 24, 2006
20:8 WY hz 190 9002
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, 3.
AND CIRCUIT JUDGE AHN, IN PLACE OP ACOBA, J., RECUSED
OPINION OF THE COURT BY MOON, C.J.
The instant appeal arises out of a determination by the
Circuit Court of the First Circuit' that a settlenent agreement
between plaintiffs-appellees Jocelyn Abaya, individually and as
next friend of William Pineda-Abaya, Czarina Pineda-Abaya, and
14S. Mexenna presided over the underlying
‘otherwise indicated.
ae
atte
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Phoebe Pineda-Abaya, and as special administrator of the Estate
of Willis Abaya (hereinafter, collectively, the plaintiffs]? and
defendants-appellees Richard Mantel1 aka Richard Mandell (Dr.
1th West (THW) hereinafter, collectively,
Mantel) and Team
the defendants] was made in good faith, pursuant to Hawai'i
Revised Statutes (HRS) § 663-15.5 (Supp. 2005), quoted infra.
The circuit court's good faith determination was made over
sparty-in-interest”-appellant Anerican Classic Voyages Company
(appellant) ‘s objection that the agreement evinced collusion
between the plaintiffs and the defendante to Appellant's
detriment.
Appellant appeals from the circuit court’s (1) February
25, 2005 order granting the plaintiffs’ petition for
determination of good faith settlement and (2) April 25, 2005
order denying Appellant's motion for relief from and for
reconsideration of the February 25, 2005 order. on appeal,
Appellant clains that the circuit court abused ite discretion in
granting the plaintiffs’ petition. specifically, Appellant
argues that the settlenent was not nade in good faith inasmuch as
the plaintiffs and the defendants “colluded in the wording" of
the settlement agreement “in order to sever or otherwise avoid"
on March 24, 2003, Jocelyn Abaya, Millis Abaya’s wife, moved for an
order appointing her se next friend for William Pineda-Abaya,, Clarina Pineda
Abaya, and Phoese Pineda-Absya, the Abayas’ three minor children. On the seme
Gay, the Honorable Karen N. Blondin granted the order:
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
the effect of a written indemnity agreement between Appellant and
‘THM, thereby injuring Appellant’s interests
Based on the discussion below, we conclude that,
because Appellant failed to properly intervene in the instant
case, it is not a party to the case. Thus, Appellant lacks
standing to challenge the circuit court's orders from which this
appeal is taken. Accordingly, we dismiss the instant appeal
TT. BACKGROUND
At all tines relevant herein, Willis Abaya was enployed
by Great Independence Ship Company, a ‘subsidiary entity" of
Appellant, as a porter aboard the cruise ship S.8. Independence
(the ship). Appellant, in turn, owned and operated the ship.?
Appellant contracted with Quantum Healthcare Medical Associates,
Inc. (Quantum)‘ to, inter alia, operate a hospital aboard the
ship and provide a medical staff for the hospital. The
contractual provisichs are set forth in the Professional Service
Agreement (PSA) executed by Appellant and Quantum/THW. The PSA
contain an indemnification agreement, wherein Appellant and THW
intially agreed, inter alia, to indemnify and hold each other
harmless for the other's negligence.
2 Although Appellant indicated that it owed and cperated the ship, the
defendants stated that the ship vas ovned by Appellant but operated by
American Havai'i Cruise Line. The digeinetion, however, appears to be
inconsequential to the ingtant case.
+ according to Appellant, Quantum is apparently wholly omed by parent
corporation Team Health, inc. and Le now known as THM. However, accarding £0
the defendants, Quantum’ is s wholly owned subsidiary of THW. The parties
appear £0 refer to Quantum and THW interchangeably, Thue, we have done the
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Pursuant to the PSA, Quantum contracted with Dr.
Mantell to serve as an “independent contractor physician” aboard
the ship. Dr. Mantell is a medical doctor and surgeon, licensed
in the State of California, and is certified as the ship's
physician by the United States Coast Guard.
A. Factual Background
on May 23, 2001, Abaya, while working aboard the ship,
became ill and was brought to the ship’s hospital in a wheelchair
by his co-worker. According to the defendants, Abaye was brought
to the ship’s hospital at approximately 5:20 p.m.= At that time,
the ship was docked at Honolulu Harbor in the State of Hawai'i.
Upon arriving at the ship’s hospital, Abaya immediately becane
“unresponsive and went into seizure activity." Dr. Mantell
determined that Abaya was having a myocardial infarction,
commonly known as a heart attack. After the initial seizure
activity, Abaya apparently became somewhat responsive and was
able to answer certain questions posed by Dr. Mantell. At some
point later, Abaya suffered additional seizure activity. after
the additional seizure activity, Abaya became unresponsive
without any vital signs. According to the defendants, Abaya
remained unresponsive despite Dr. Mantell’s efforts.
on appeal, the plaintiffs state that it is “unclear when Abaya firet
arrived at che ship's howpital. Im addition, the plaintiffe state thee Abe
Becane ill “with heart attack cymptons" at 3:00 p.m.
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At some point after Abaya was brought to the ship's
hospital, the plaintiffs allege that an anbulance was called to
transport Abaya to Queen’s Medical Center (QMC), a nearby
hospital located in Honolulu. When the ambulance crew arrived at
the ship's hospital, Dr. Mantell apparently “would not rele:
‘Abaya to the ambulance crew. Ultimately, Abaya remained at the
ship's hospital in the care of Dr, Mantell. Thereafter, Dr.
Mantell pronounced Abaya dead at 6:12 p.m.
B. Procedural History
on March 18, 2003, the plaintiffs filed their complaint
against the defendants but not against Appellant, apparently
because Appellant was involved in a Chapter 11 bankruptcy
proceeding.* The plaintiffs essentially alleged that Dr. Mantell
was negligent in the care and treatment of Abaya. The plaintiffs
«prior to the filing of the complaint, Appellant filed 2 voluntary
petition for relief under Chapter il of the Bankruptcy Code in the United
Blates Bankruptcy Code for the District of Delaware (the bankruptey court)
According to Appellant, the Bankruptcy court entered an “Order Approving the
Implementation of Procedures to Liguidace Certain Disputed Personal Injury
Cline” (the bankeuptey order) on Septenser 24, 2002. On April 24, 2002, the
Estate of Willis Abaya (the Eatate) apparently asserted claims aricing from
Absya's death against Appellant, pursuant to the bankruptcy order. According
to Appellant, the etate asserted “claims against [appellant,] alieging
negligence under the Jones Act ‘and the general maritime law.”
Specifically, the Estate apparently alleged that Appellant was “negligent in,
‘ahong other things, failing to provide [Abaya] with proper medical care and
failing to ensure the hospital aboard the [ship] was properly equipped.
According to the plaintiffs on appeal, hovever, “[b]ecause of the
bankruptcy petition filed by [Appellant], the claine against [appellant] are
pot yer detailed in a formal pleading." ‘The plaintiffs further state that,
SYolhee the automatic stay i lifted, the [estate and the survivors of Abays]
Mill be filing an action against [Appellant] to prosecute the clains against
Appellant] based on ite alleged wrongdoing and nct for any liability [it] say
have for vicarious Iiability it would otherwise be held accountable for due to
hegiigence by the [defendants]. Pinally, che plaiselfts eeate chet they
SElled « proof of claim in the bankruptcy proceedings.”
ose
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also alleged that TW was liable for (1) Dr. Mantell’s negligence
under the doctrine of respondeat superior and (2) its own
negligence. Specifically, the plaintiffs claimed that THW was
negligent ‘in recommending or providing [Dr.] Mantell to provide
jervices on the ship[.]" Moreover, the plaintiffe asserted that
ary informed consent
the defendants failed to obtain the nec
from Abaya and/or the plaintiffs
on Septenber 15, 2004, the plaintiffs and the
defendants entered into a settlement, resolving all claime
against the defendant arising from Abaya’s death. The evsential
terms of the settlement were incorporated in a document entitled
*ESSENTIAL ABAYA TERNS" (hereinafter, the Essential Terms]. The
Besential Terms was confidential, placed on the record on
September 15, 2004, and sealed.
on Novenber 8, 2004, the plaintiffs filed a “Petition
for Determination of Good Faith Settlement” hereinafter, the
petition], pursuant to HRS § 663-15.5.” The plaintiffs asserted
that the petition
7 wns § 663-15.5 provides in relevant part:
(®) Ixlny party shall petition the court for a
hearing on the issue of good faith of a settlenent entered
into by the plaintiff or other claimant and one or sore
Alleged tortfeasore or co-obligore, serving notice £0 all
Other known joint tortfeasore or co-cbligors. =
‘The petition shall indicate the settling parties ang,
except fora settlement that includes « confidentiality
Agreenent regarding the case or the terns of the settlenent,
the basis, terms, and settlenest anoune
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ie submitted on the grounds that [the pllaineiffs have, in
good faith, entered into a settlement with [the d)efendante.
circumstances of the care, ie
‘The essential terms of the settlenent are that all of
(ene pllaiseitfe’ claine against [the dlefendants will be
feleased in return for payzent to [ehe p]isintiite of &
Confidential amount.
‘Thus, the plaintiffs requested the circuit court to determine
that the settlement was entered into in good faith and that the
settlement “bars all joint tortfeasors fron asserting any clains
against [the dlefendants for contribution and/or indemnity
arising out of the incidents which form the basis of (the
p)laintiffs’ claims{.]* The plaintiffs also served Appeljant
with notice of the petition, in apparent recognition of
or, pursuant to HRS
Appellant's status as a known joint tortf
§ 663-15.5(b). See aupra note 7.
on November 22, 2004, the plaintiffs and the defendants
filed a “stipulation for Dismissal With Prejudice of all Claims
Against [Dr.] Mantell.* On Novenber 30, 2004, Appellant --
Adentitying itself as a “party in interest~ -- filed ite
objection to the petition, but did not -- at that tine, or any
time thereafter, move to intervene as a party in the instant
"HRS § 663-25.5(@) provides
(3) determination by the court that a settlenent
was made in good faith shall:
(2) Har any other joint tortfeasor or co-ebligor
rou any further claims agsinet the settling
torfeasor or co-obligor, except chore based on a
written indemnity sgreenent; and
(2) Result sn a dienigeal of ali crose-clains filed
against the settling joint tortfeasor or co”
obligor, except those based on a written
indemnity agreenent.
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action. Appellant contested the good faith of the settlement
agreement proposed by the plaintiffs and the defendants “to the
extent, if any, that such settlenent operates to sever or
otherwise avoid the [indemnity agreement contained in the PSA]
between (Appellant) and [the dJefendants.”? Appellant requested
the circuit court to require the plaintiffs and the defendants to
“disclose the specific basis and terms of the proposed
settlement” and, ‘if warranted, that the [eireuit court
invalidate any basis or term of settlement that operates, or
seeks to operate, to sever or otherwise avoid the [indemity
agreenent] between [Appellant] and [the dlefendants["*) as
lacking in good faith pursuant to the provisions of HRS
§ 663-15.5.°
On December 3, 2004, the defendants filed their
“substantive joiner” in the petition [hereinafter, the joinder]
and attached (1) the Essential Terms and (2) the Release,
indemnification and Settlenent Agreenent. The defendant
submitted in their joinder that *[t]here are a nunber of factors”
that would support the determination that the settlement was made
in good faith.
© we note that Appellant states that che subject indesnity agreenent
(contained in the PSA) was entered inte between it and cthe defendants,” Luca,
TH and Dr. Mantell. However, as previcusly mentioned, the PSA was entered
into between Appellant and Quantun/TiW. Dr. Nantel},
contracting party to the PSA.
* see aupra note 9.
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On December 6, 2004, a hearing was held on the
petition. On February 25, 2005, the circuit court entered its
order granting the petition [hereinafter, the order]. The
circuit court stated in relevant part
2. The [circuit] court determines and orders that
[ene pliaintiffe’ settienent with (the defendants was
tneered into in good faith, considering the various factors
fet forth in Troyer v. Adats, [102 Hawai'i 299,] 77 P34 83
12003}]. this includes the expenses, including expert
teetinony, for (the p)iaintifee(] to present a case ageinst
the [diefendants herein, and the strengths and weaknesees of
the case against the (@jefendante herein.
2, __tn that there is no opposition to the [petition)
by anyone other than [appellant], the (circuit) court hereby
Geeervines that, with the exception of iappellant), the
Gettlenent bare all joint torefeasors from asserting any
Claims against. (the defendants for contribution and/or
Sndemnity arising out of the incidents which form the basis
of [the p)iaineiffe’ claims herein.
3. With respect to [Appellant], the (circuit) court
reiterates ite finding and determination that (the
plisintisfe’ eettlenent with [the djefendants vas entered
Theo in good faith. The [circuit] court makes no
determination regarding the effect of HRS" S 663-
Ys.s(a) GQ) ("] or whether any of the rights of [Appellant]
Agsinet the [dJefendants herein based upon a written
[ndennicy soreenent vould be affected by the certlenent.
Any claine by (Appellant) against any of the (dlefendant
herein other than [those] based upon a written indemnity
igreenent are barred. To the extent any of the provisions
Of the settlement conflict with MRS § 663-15.5(d) (1), the
statute would control.
(pnphasis added.) The order was served on Appellant and the
defendants on March 8, 2005. On March 28, 2005, Appellant filed
As previously tated, ARE § 663-15-5(d) (1) provides:
(4) A determination by the court that 2 settlenent
wae made in good faith shall:
a)” Bar any other joint tortfeasor or co-obligor
from any further claims against the settling
torfeascr oF co-obligor, except those based on
writen indemnie Bet)
(emphasis added.)
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its notice of appeal pursuant to, inter alia, HRS
§ 663-15.5(
on the same day, Appellant filed a motion for relief
from and for reconsideration of the order (hereinafter, motion
for reconsideration]. Appellant requested reconsideration of the
order on the basis that, because the terms of the settlement
agreement were not timely disclosed to Appellant, it could not
present an effective argument at the December 6, 2004 hearing on
the petition.
on April 13, 2005, the circuit court orally denied
Appellant's motion for reconsideration. Appellant filed an
amended notice of appeal on April 15, 2005. on April 25, 2005,
the circuit court entered ite written order denying Appellant’s
motion for reconsideration.
ums § 662-25.5(e) provides:
fe) | A-nurty agarieved by a court determination on
the _igsue_of good faith may appeal the determination. me
sritten notice of the detersinstion. or within aay
Additional time not exceeding twenty days as the court may
allow.
(pephases added.) We note that the March 8, 2005 service date is documented
inva letter from Appellant’s counsel to the plaintiffs’ counsel. None of the
parties dispute that the written notification of the circuit court's order was
srved on the parties pricr to March 8, 2005, and the record does net contain
nce dieputing the March 8, 2005 service date. Thus, because
(e'e Mazeh 26, 2005 notice Of appeal was filed within twenty days after
the March 8, 2005 gervice of the written notice of the order, Appellant's
March 28, 2605 notice of appeal was timely filed
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TIT. STANDARD OF REVIEW
on appeal, the issue of standing is reviewed de nove
under the right/wrong standard. State ex rel. Office of Consumer
Prot univ. of set .
110 Hawai‘ 504, 513, 138 P.3d 113, 122 (2006) (citing Mottl
Mivahira, 95 Hawai'i 381, 388, 23 P.3d 716, 723 (2001).
IV. DISCUSSION
Before this court can address Appellant's assertion
that the settlement agreement between the plaintiffs and the
defendants was not made in good faith, we must initially
determine whether Appellant has standing to appeal in the first
instance. We conclude that it does not.
‘This court has stated that:
Generally, the requirenents of standing to appeal are:
fon of the order oF judgment
mat have had standing to oppose it in the erial court; and
(G) euch person mist be aggrieved by the ruling, Lie. the
person must be one who ie affected or prejudiced by the
. Eppealable order
Kepo'o v. Watson, 87 Hawai'i 91, 95, 952 P.2d 379, 383 (1998)
(quoting Waikiki Malia Hotel, Inc, v. Kinkai Prope,, Ltd. prehip,
mphasis added)
75 Haw. 370, 393, 862 P.24 1048, 1062 (2993))
(internal quotation marke and brackets omitted); see also Stewart
Propa., Inc. v , @ Haw, App. 431, 433, 807 P.2d 606, 607
(1991) (stating that *[a] well-settled rule is that only parties
toa lawsuit . . . may appeal an adverse judgment”) (citation
omitted) (ellipsis in original). “In other words, nonparties,
ou
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au could not intervene,
standing to appeal." Id, (citing 15 C. Wright, A. Miller & B.
cooper, Fed. Practice & Procedure: Jurisdiction § 3902, at 407
(1976)) (footnote, brackets, and internal quotation marks
omitted) (emphasis added).
‘This court recently held in Bacerra v. MacMillan, 111
Hawai'i 117, 138 P.3d 749 (2006), that an entity that did not
move to intervene, but merely filed a notice of lien, in an
underlying medical malpractice action lacked standing to appeal
the circuit court's order dismissing such notice of lien. ‘Id. at
319-20, 138 P.3d at 751-52. In the underlying action, the
plaintiffs (a father, a mother, and their child represented by
the mother) filed a medical malpractice conplaint against the
defendants (the attending physician and the hospital),
essentially alleging that, as a result of the defendants’
negligence, the child sustained severe brain damage during his
birth. Id. at 118, 136 P.3d at 750. The medical expenses
incurred as a result of the child’s extensive medical care and
treatment were paid by the nonparty entity (a trust fund that
provided medical coverage to the plaintiffs) and the state of
Hawaii's Department of Hunan Services (DHS). id, Ultimately,
the plaintiffs reached a settlement with the physician, as
evinced by their “Petition for Approval of Good Faith
Settlement." Id. Subsequently, the circuit court issued an
vorder for Attendance of Persons/sntities at Further Settlement
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conference,” mandating the attendance of the nonparty entity at a
Id. The order was the first
further settlement conferencé
notification to the nonparty entity that the child's condition
may have been caused by a third-party against whom the plaintiffs
4d. Consequently,
were pursuing an action to recover damag
the entity filed a notice of lien, asserting its right of
reimbursement for paymente made by it on behalf of the child.
Id. The entity, however, did not file a motion to intervene as a
party in the action. Id. at 119, 138 P.3d at 751. the
plaintiffs thereafter moved to dismiss the notice of lien on the
basis that the entity's lien action was preempted by the Federal
Employees Retirement Income Security Act of 1974, commonly known
as ERISA, codified at 29 U.S.C. § 1001 et seq, Id, The circuit
court, over the objection of the entity, dismissed the notice of
lien. Id.
on appeal, this court stated that “the act of filing of
a notice of lien, in and of itself, does not make the lienor a
party to the case." Id. Specifically, this court stated that:
im in the instant case, the
race van independent action”
‘S perty in the inetant case, pursuant co
Jf Givi Procedure (HRCP)] Rule 24 (2008).
faving fatied co do ao, the Tentity) dove not weet. che first
prong of the standing requirements recited in Kepo'o,
ihe person must first have Deen a party to the action"
7 Hawaii at 95, 952 P24 at 363 (citation omitted)
Her therefore, hold that, because the [entity] was not made
Z'party to the instant case, it lack standing to appeal,
(avai Run
FN 3: HRCP Rule 26 provides in relevant part:
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(a) Intervention of risht- Upon timely
applicstion|,) anyone snail be permitted to
Sntervene in an action: (2) when a stacute
confers an unconditionel right £0 intervene: oF
(2) when the applicant claims an interest
hhey'as a practical matter impair or impede the
applicant's ability to protect that interest,
Ubleas the applicant's interest ie adequately
represented by existing parties.
ic) Eocedure. A person desiring to intervene
shall serve s notion to Intervene upon the
parties as provides in Rule 5. The motion shall
Etate the grounds therefor and shall be
Accompanied by a pleading setting forth the
Claim or Gefence for which intervention is,
fought.
Id. at 120, 136 P.3d at 752 (emphases and citation omitted).
‘The instant case was filed solely in the names of the
plaintiffs, who, in turn, naned only Dr. Mantell and THW a
defendants, Indeed, Appellant expressly states on appeal that it
‘was not made a party to the underlying action{.]* As previously
stated, the plaintiffs served Appellant with notice of the
petition, in apparent recognition of Appellant’s status as a
vknown joint tortfeasor,” pursuant to HRS § 663-15.5(b).
Moreover, Appellant was permitted to object to the plaintiffs’
petition, also pursuant to HRS § 663-15.5(b). HRS § 663-15.5
provides in relevant part:
(a) A release, disniseal with or without prejudice,
or a covenant not to sue oF not to enforce a judgnent that
ge given in good faith under subsection (b) to one oF nore
joint tortfeasore, or to one or nore co-obligors who are
itually subject Co contribution rights, shall
(2) Rot discharge any other joint tortfeasor or co-
ebliger not released from Iiability unless ies
ferns co provides
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(2) Reduce the clains against the other joint
tortfeasor or co- obligor not veleased in the
ancunt stipulated by the release, Gistissal, or
Covenant, or in the amount of ene consideration
paid for it, whichever is greater; and
(2) Biecharge the party to whom it is given from all
Tisbiliey for Say contribution to any other
joint tortfeasor or co-obliger.
‘this eubsection shall not apply C0 co-obligors who have
Guprensly agreed in writing to an spportionent of Tiability
{or losee ex claims among thenselves
ib), “For purposes of subsection (a), amy party shall
petition the court fora hearing on the issue of good faith
bf a gectlenent entered into by the plaintitt or other
Claimant and one or nore slleged tort fessors or co-0bligort
Spligara. Upon a enowing of good cause, the court may
Shbreen the tine for giving ene required notice to permit
the determination of the issue before the commencement of
the trial of the action, of before the verdict or judgment
[Pestelement is made efter ene trial has commenced.
‘The petition shall indicate the settling parties and,
except fora settlenent that includes a confidentiality’
Soreenent regarding the case or the ters of the settlenent,
tfe basis, terms, and settiement amount
‘The notice, petition, and proposed order shall be
served as, provided by rules of court or by certified mail,
feturn receipt requested. Proof of service shall be filed
with the court. " i
he not ston a sed
eat thi Teinone of the
honsettiing alleged joint tortfeasors or co-obligors files
‘objection within the twenty-five days, the court may
Gpprove the settlement without a hearing. An objection by a
honsettling alleged joint tortfeasor or co-obligor shall be
Served upon all parties. A nossettling alleged Joint
tortfeasor or co-cbliger asserting lack of good faith
hall have the Burden of proof on that issue
Where a confidentiality agreenent has been entered
into regarding the claim or settlement terms, the court
shail hear the satter in a manner consistent with preventing
public disclosure of the agreement while providing other
Joint tortfeasors and co-obligors sufficient information to
abject to a proposed sertlenent.
ig) A determination by the court that a settlement was
made in good faith shall:
(a) ear any other joint tortfeasor or co-cbligor
fron any further claine against the settling
torefeator oF co-obliger, except those based on
a written indemnity agreomext; and
(2) Result in a dlemissal of all cross-clains filed
Againet the settling joint tortfeasor or co-
Sbligor, except those based on a written
Sndennity agreement
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(e) | Amarty ssarieved by a court determination on
the issue of good faith nav abpeal the determination. The
appeal shall be filed within twenty Gays after service of
Mriteen notice of the determination, or within any
additional tine not exceeding twenty Gays as the court may
aTow.
(emphases added.) According to the plain language of HRS
§ 663-15.5(b), Appellant need not have been *a party" to file its
objection to the petition in the instant case; rather, Appellant
need only have been *a nonsettling alleged joint tortfeasor or
co-obligor.* However, as HRS § 663-15.5(e) unequivocally
indicates, only “[al party aggrieved by a court determination on
the issue of good faith nay appeal the determination.
added.) In fact, the 2003 amendments to HRS § 663-15.5, as
(Emphases
originally enacted in 2001, support the notion that the
legislature recognized that a distinction may exist between “a
party" and “a nonsettling alleged joint tortfeasor or co-
obligor.” In 2003, the legislature amended, inter alia, HRS
§ 663-15.5(a) and (b) by substituting “joint tortfeasor or co-
obligor” in place of “party” as follows (bracketed language
stricken; underscored language added) :
(a) A release, dismissal with or without prejudice,
or & covenant not to sue or not to enforce a judgnent that
Ge given in good faith under subsection (b) to one oF nore
joint tortfeasore, or to one or more co-obligore who are
mutually subject to contribution Fights, shall:
(2) Rot aischarge any other (pecey] joint tort
oxco-obligor not released from liability uniess
ite terns so provide;
(2) Reduce the clains against the other [perey)
For 0% not released in
The amount stipulated by the release, dismissal,
or covenant, or in ene anoust of the
Consideration paid for it, whichever is greater;
fan
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(3) Discharge the party to whom it ie given from all
Liabiiiey for any contribution to any other
[perty] joint tortfeasor or co-obliger-
iwi :
isthin’ twenty-five days of the nailing of the
petition, and proposed order, a nonsettling (perey!
. ‘say file an objection
fo content the good faith of the settlenent. if none of the
nonsettling [parties] alleged soint tortfeazore or co-
ebligera files an objection within the twenty-five days
Court say approve the settlement without 2 hearing. AR
objection by nonsattiing [perey)
or co-bligor shal! be served upon all (ether) parties.
ee
Ste pee
abliger asserting s lack of good faith shall have the burden
Of proof on that issue.
2003 Haw. Sess. L. Act 146, § 1 at 342-48 (bold enphases added).
The legislature, however, did nok anend HRS § 662-15.5(e), which,
as previously stated, provides that only “fal party aggrieved by
a court determination on the issue of good faith may appeal the
onably can be said that the
determination.” As such, it re
legislature intended only parties, not_mexely non-settling
alleged joint tortfeasors, to have the right to appeal a court
determination on the issue of good faith. Thus, for purposes of
appeal, Appellant was required to intervene as a party in the
instant case, pursuant to HRCP Rule 24. Having failed to do 0,
Appellant does not neet the first prong of the standing
requirements recited in Kepo‘o, that is, “the person must first
have been a party to the action.” Keno'o, 87 Hawai'i at 95, 952
P.ad at 383 (citation omitted). Accordingly, because Appellant
was not made a party to the instant case, it lacks standing to
appeal. See Bacerra, 111 Hawai'i at 120, 138 P.3d at 72;
Chierighino v. Bowers, 2 Haw. App. 291, 295, 631 P.2d 183, 186
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(1982) (holding that, because the appellant was not a party to
the action, his appeal mst be dismissed) .
Vv. coxcuusION
Based on the foregoing, we dismiss Appellant's appeal.
on the briefs: fpr
Normand R. Lezy (of Leong
Kunthire Leong & Lezy), aRihornae—
for party in interest-
appellant American Classic Dei Camco er
Voyages co.
R. Patrick Jaress, for :
plaintiffs-appellees
Elton John Bain and €
E. Mason Martin, TIT
(of Kessner Duc Umebayashi
Bain & Matsunaga), for
defendants-appellees
oie.
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