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670d841f-a025-496c-8ddb-637d3d19d3f7 | Ching v. Valencia | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
HAWAI REPORTS AND PACIFIC REPORTER
NOT FOR PUBLICATION IN WEST’
Wo, 27331
IN THE SUPREME COURT OF THE STATE OF HAMA‘
DONALD S. K. CHING,
Plaintiff-Appellant /Cross~Appellee,
qa
vs.
MARK G. VALENCIA, JAMES C. McWHINNIE, S| |}
DAMON KEY LEONG KUPCHAK’HASTERT, a Law Corporatibn,
Defendants-Appellees/Cross-Appellants,
and
JOHN DOBS 1-50, et al., Defendants.
APPEAL FROM THE FIRST CIRCUIT COURT
(crv, NO, 04-1-2270)
tay: ‘Noon Cae and Nakayama, 99.)
circuit Judge Sakamoto, in place of Levinson, ‘J., recused,
Giccult Judge Wilson, ‘in place of Actba, I." recused and
Circuit sudge Ahn, in place of Ovfty, J. recused)
Plaintiff-appellant/crose-Appelles Donald 8. K. Ching
("Plasnes££*) appeals and Defendants-Appellees/Cross-Appellants
Mark G, Valencia, Janes C. MeWhinnie, and Damon Key Leong
upchack Hastert, a Law Corporation (collectively referred to as
“pefendants*) cross-appeal from the first circuit court's! May 3,
2008 order granting in part and denying in part Defendants!
motion for sunnary Judgment and June 3, 2005 judgment in favor of
on appeal, Plaintitt argues that the circuit court
erred in granting summary judgment on his malicious prosecution
{the Honorable Sabrina S. MeKenna presided
NOT FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTER
claim inasmuch as (1) judicially enforceable arbitration
proceedings satisfy the “prior proceeding” eler
nt required of
malicious prosecution and (2) he lacked a reasonable opportunity
for discovery prior to the court's finding that “there is no way
The) can prove lack of probable cause.” Plaintiff also contends
that the circuit court erred in granting summary judgment on his
defamation claim because the litigation privilege does not apply
to lawyers’ statements made in arbitration proceedings.
on cross-appeal, Defendants argue that the circuit
court abused its discretion (1) by failing to award then
attorneys’ fees and costs under Hawai'i Revised States (“HRS”) §
607-14.5 (1993)? because Plaintiff brought frivolous claims and
2 es § 607-14.5,
actions,” provides as follow
Js and costs in civil
titled, “Attorneys” fe
(a) In any civil action in this State where a party seeks
noney damages of injunctive relief, or both, against another
Party, and che case is subsequently decides, the court ma. ag it
Seams ust assess againat either Carty, whether or not the party
tee a prevatling party, and enter az pact of sts order, for unsch
execution may issue, a ceasonable sum for attosmes’” {ees and
‘Soate._in on apount’ tobe determined by the court uno a apecitic
‘Eindina that all ora portion of the party's claim or defense was
‘tcivolens as broviged io aubsection Tb.
{b] in determining the award of actorneys’ fees and costs
and the amounts to be suarded, the court must find in writing that
Tain the clad -accion- in determining whether claims or
defenses are frivolous, the court may consider whether the party
Slieging that the claims or defenses are frivolous had submitted
fo the garty asserting the claiss of defense: :
sithdtaual az cravided in aobesction (ol it-the court desemings
hat only anor
‘axe frivolous. the court shall delermane a ceascnabe sul for
‘iorneve" fee and costs in relation to the frivolous claias or
Te) A party alleging that claims or defenses are frivolous
may subait to the party asserting the claims or defenses a request
for withdrawal of the frivolous claims of defenses, in writing,
identitying those claims or defenses and the reasons they are
believed to be frivolous. If the party withdraws the frivolous
2
*** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
(2) by declining to consider the exhibits submitted in support of
Defendants’ motion for sunmary judgment.
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) In light of this court’s policies (1) to avoid the
chilling effect of possible subsequent litigation? and (2) in
elaine or defenses within s reasonable length of tine, the court
Shall not award attorneys’ fees and costs based on those claine or
Gefences under this secvion.
MRS § 607-14.5 (emphases added).
>We nave declared that courts “serve an important role in resolving
conflicts and defining rignes” thus ans enpnasized “che importance of
Reaningful access to (courts].” Matauuca <, E.1, du Pont de Nemours and Co.,
102 Hawai": 149, 156, 73 P.34 687, 684 (2003). In the context of protecting
communications ‘uring judicial proceedings, we quoted an ICA opinion that
cautioned that the threat of subsequent litigation affects access to the
We do not wish to open the door to a second lawsuit being filed by
the defendant every tine the plaintiff loses a previous lawsuit,
folloned, we suppose, by a third lawsuit if the plaintiff in the
Second lawsuit loses that one and so on ad infinitium. We chink
that one of the things chat distinguishes cur scciety is the
citizen's relative freedom of access to the court:
Ide at 157, 73 2.3d at £95 (quoting Brodie v, Hawai'i Auto, Retail Gasoline
Dednere Aai'n., inc., 2 Maw. App. 316, 321, 631 Prza 600, Coe (1981), zev"g on
ther arqunde, 65 "nay. 598, 658 P.2a B€3 (1982)).\ Permitting partied of
tration to'bring a malicious prosecution claim in court based
ion proceeding may prevent honest plaintiffs from raising thelr
clains in arbitration. See laing t. Shanberg, 13 F.Supp. 2d 1186, 1189 (0.
Kan. 1996); Olckinson v.-Eshals, 576-80. 24-1287, 1258 (Ala. 1981) (explaining
that *"(p)ublie pelicy fequires that ali persone’ shall [be able to] resort,
freely to the courts for redress of wrongs and to enforce their rights, and
that this may be done without the peril of 2 suit for damages in the event of
an unfavorable judgnent by jury or judge’")7 Wong vs Tabox, 422 N.E.2d 1279,
I2e3" (Ind. Ce. App. 1981) (The tort of malicious prosecution is ot generally
Eavorea in our legal systen, and this its requsrenents are construed strictly’
agsinse the party bringing the action.) Paul v Nat'l Educ, ‘Asa’n, 459 8.20
1213; i21¢ (ia. Super. 1983) (noting that malicious prosecution suite tend to
chill free access to the courte); W. Page Keeton, Prosser 4 Kastan on the Law
BE Torts § 120, at 889-90 (Sth ed. i984) (observing that Malicious prosecution
Elaine Rave a chilling effect on honest litigants) «
3
0+ NOT _FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
favor of arbitration as a means of dispute resolution,‘ a private
contractual arbitration will not support a subsequent claim for
malicious prosecution.’ Accordingly, the circuit court did not
err in granting surmary judgment for Plaintiff’s malicious
prosecution claim
+ Soe Tatibouet v. Ellsworth, 99 Hawai'i 226, 234, 54 P.26 397, 405
(2002) ("the Legistature overuhelmingly favors arbitration as a seans of
dispute resolyeion.” (citation omiteed) }7 Leeward Bus Co. vs Honolulu, 38 Haw,
G4, 71 564 F.28 445, 449 (1977) ("(z]he prociasmed public policy of our
Tegislature is to encourage arbitration a a means Of settling differences and
thereby avoid 2itigation.”) (quoting Grega Kendall ¢ Assocs. <. Kaubi, $3 Haw:
be, 93, #88 P.2d 136, 140 (2971)); Schade v, Fac, Benetit Sere. inc, 119
Havai's 161, 168, 250 P.34 £10, 417 (*[flartiee resort to arbitration tS
settle disputes more expediticusly and inexpensively than by a court ction.
Tt must be dened that the primary
Lisiaation.” (quoting
Hussar, Led., “7a naw, 210, 225-26, 847 B-Za €b2, GS-65 (1992) [block quote
formatting omitted)) emphasis added)
Permitting parties uno arbltrated their dispute to
nether the arnitration was brought without probable cause and naliciously,
Nould subvert the pareses’ intention to avoid Litigation. See Sagsnawsny y
More, G4 Cal. App. 4th 122, 132, 75 Cal. Aper. 2d 118, 133 1998) (ooserving
Uhet permitting malicious prosecution claims based on’ private contractual,
arbitration would “increase litigation and (] undermine the finality of
Gispote resolution to which the parties agreed”); Sxonnan ‘. Trance, Tne, 25
Gals ath 310, 314, 20 P.3a 2086, 1086, 105 Cal. ptr. 2a 750, 792-95 (2001)
(holding that 2 person say not sue for the nalicious prosecution of an action
that the parties resolved through contractual arbitration even where the
Ungerlying action began in court in light of I) the trend against creating or
expanding derivative tort renesies, including malicious prosecution? and (2)
the trend in favor of allowing the parties voluntarily to choose binding,
private arbitration to end the entire dispute”); af, Tatibouet, 99 Hawsil'i at
Ebay "se Peas at 408 (eieations omitted) (declaring that the legislature
Strictly limits judicial review in arbitration awards because ef the policy
favoring arbitration and the parties’ intent to avoid litigation)
+ A. malictous prosecution clain involves three elements “(1) the
prior procesdings mist have been terminated in the plaintif!'s favor; (2) the
Bricr proceedings must have been initiated without probeble cause) and (3) the
Prior proceedings mist have been initiated with malice.” Nong ¥. caveteng,
Ti Hawai'i 462, 476, 143 F.3d 1, 17 (2006) (citing
Wonoluig, 76 Hewai's' 213, 230, 833 .24 98, 109 (195)}— This claim 19
Gesigned to “naintain{] the integrity of the judicial system, providiel
injured persons with sone form of redress, and preserv(e] an individual's
Fight co petition tne court and tos jury trial." Chuns v. Mecebe Wamilton &
Renny Cou itd, 109 Hawai's $20, $32, 128 P.34 833, 645 (2006)
4
NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER,
(2) Because the absolute litigation privilege!
includes attorneys’ statements made during arbitration,” the
< the Litigation privilege states, “an attorney at law is absolutely
privileged to publish defamatory matter concerning another in conminications
preliminary toa proposed judicial proceeding, or in the institution of, oF
Suring the course and as a part of, a judicial proceeding in which he
participates as counsel, if'it has sone relation to the proceeding.”
Ge venauka, S Haw. App. 45, 48-49, 6782.24 11, 1¢ (1964). (quoting Restatement
(Second) of Torts § ("Restatement §"] SE6 (1977)). The absalute privilese
applies where the statements. (1) "were made in the course of a jusicial
preceeding" ana (2) "were related, ‘material, and pertinent to that
Proceeding.” id. at 42-49, 678 P.2d at 14.” Gee Mccarthy, 5 Haw. App. at (@-
45, 61@ Poéa atta (euling that the “course of a Judicial proceeding’ includes
“the snetitution of the proceesings of in the conduct of litigation before 2
josietal tetbunal,” in conferences, and "other communications preliminary eo
the proceeding” (quoting Restatement § S86 comment a)).
“lawa'i courts have applied an absolute Litigation pcivilecs in
defamation actions.” Matsuura, 102 Hawai at 134, 73 P-30 at @92 (citations
omitted) (emphasis added); sas Ferry v. Carlamith, 23 Haw. 363, $91 (1917)
(h(t]he protection is complete irrespective of the motive prompting the use of
the words or writings, but the privilege does not extend to matters having no
materiality or pertinency to the question snvelved in the suit.");— The
Ebsolute privilege “protects the storey from liability in an action for
Gefanation irrespective of his purpose in publishing the defanatory matter,
his Belief in its truth, or even his knowledge of its falsity.” Restatement §
586 comment a.
>. Seg Kahala Roval com, v, Goodsil) anderson Quinn s stifel, 113
nawas's 251, 292-73, 151 P-3d 132, 752-53 (2007) {holding that, inthe ‘context
Of intentisnal interference with ‘contractual relations and intent icnal
Interference with prospective economic advantage, the Litigation privilege
applies to an attorney's representation of 2 client in arbitration) (esting Hy
783 8.24 398, 403 (RAT
2001] (stating thet quasi-judicial proceedings such as arbitration ‘proceedings
are “judicial proceedings,” and, thus, statements in arbitration proceesings
are privileged against suits for defamation) gee ales Kanaka v.”Goodss1l
Fe 317 Hawai's 82, 106 nie, 176.30 91, 105 n.18
(2008); Restatement § 286 comment d (“Judicial proceedings include all
proceedings before an officer er other tribunal exercising 2 jusieisl
Function, on which ge § 505, Comnente cand f. Ae indicated there, on
arbitration proceeding aay bé incluged.”)
Tn Kohala Roval Corp., this court observed that “the scope of any
privilege 1s based upon policy considerations, and listed the “interrelated
Policies associated with the litigation privilege” as follows:
(2) promoting the candid, objective, and undistorted disclosure of
evidence; (2) placing the burden of testing the evidence upon the
Ueignes during erial; 13) avoiding the chilling effect resulting
from the threat of subsequent litigations (4) reinforcing the
Hinaity of Judgments; (3) limiting collateral attacks upon
judgments; (6) promoting zeslous advocacy: (7) discouraging
Abusive Litigation practices) and. (8) encouraging settlement
5
+ NOT FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER
circuit court did not err by granting summary judgment for
Plaintiff's defamation claims
(3) The circuit court did not err by failing to find
that Plaintiff's claims were frivolous* and denying Defendants
attorneys’ fees and costs. At the time Plaintiff filed the
complaint, the lawsuit involved novel malicious prosecution and
defamation legal concepts.’ Although the circuit court properly
granted summary judgment, Defendants did not establish that
Plaintiff's claims were made in bad faiths"
(4) Inasmuch ag Plaintiff’s claims were not
Ad. at 268, 152 P.34 at 749 (quoting Matauura v. B.t, du Pont de Nemours
E55,"102"navai's ‘149, ‘155,73 P-3d 667, 693 (2003)) (Same citations, brackets,
and’ internal quotation marks omitted).
+ “tn determining the award of attorneys’ fees and costs and the
amounts to be avarded (under HRS § 607=14.8], the court
that all ors portion of the clains or defenses made by the party are
frivolous ond sre not Feascnably supported by the facts and the law in the
Givil action.”" HRS § 607-1¢.5(B) (emphasas added). “A frivolous claim has
been defined as ‘a clain so manifestly and palpably without merit, so as to
indicate bed faith on the pleader’s part such that argument to the court was
fot required./” 72 Haw. 20, 28, 804 P20 881, 887 (1931)
(internal quotetion marke omitted); gee Canalezv. Bob's hee Serv. Cer.,
9 dawai'i 292, 300, 972 P.24 295, 303 (1999). The court nay consicer whether
the "party alleging that the clains or defenses are frivolous had submitted to
the offending party a request for their withdeawal” HRS § 607-1¢-5 (b) and
(el.
> see tacmae ve ingle, 110 Mawai't 327, 332, 132 F.3d 1238, 1243
[conciuding thet Defendants did not act frivolously and that Plaintiff was not
entitled te BRS § 607-14.5 attorneys’ fees and costs because “the legal
principles addressed in this case were not firmly established”).
"See WiLLis ve Suain, 112 Mawai's 164, 188, 245 7.34 727, 732
(2006) ("[slunmary judgrent is appropriate Lf the pleadings, depositions,
angwars to interrogatories, and admissions on file, together with the
Geelganste, if any, show that there is no genuine issue ae to'any moverial
fact and that the moving party ss entitled to judgment as a matter of lax.”).
6
+ NOT FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REFORTER +++
frivolous" even when taking inte account Defendants’ exhibits,
the circuit court's failure to consider Defendants’ exhibits is
deemed harmless. therefore,
17 18 HEREBY ORDERED that the first circuit court’s
May 3, 2005 order granting in part and denying in part
Defendants’ motion for surmary judgment and dune 3, 2005 judgment
in favor of Defendants are affirmed in all respects.
DATED: Honolulu, Hawai'l, August 26, 2008.
on the brief
peter Van Name Esser and x
Stephen T. Hioki fp
for Plaintief-appellant/
Cross-Appellee
Donald SK. Ching Pate, OMe oe Abe
Sidney K. Ayabe and
Steven L. Goto of Ayabe,
Chong, Nishinoto, Sia « :
Nakamura, for Defendants- D>,
Appellees/Cross-Appeliants,
Mark G, Valencia, James C. /
Melihinnie, and Damon Key
Leong Kupchack Hastert, a Law
corporation
8 the circuit court's failure to consider Defendanta’ exhibits with
regards to the issue of granting sunmary judgment ie haruless because it ruled
in favor of Defendants
See HRS § 6£1-16 (2993) ("No order, judgment, or sentence shall be
reversed or modified unless the court is of the opinion that error uae
Committed which injuriously affected the substantial rights of the
Appellant"); Scate v, Rivera, 106 Hawai'i 146, 165-66, 102 P.3d 1044, 3062-64
(2504) "(sig}eeer te aot to be’ viewed in isolation or] considered purely in
et. Consistent with the harmless efror doctrine, we have frequently
‘thet error must be examined in light of the entire proceedings and
Given effect to which the whole record ehous it se entities.” (eitetions and
Gostation marks onittes) |; Maksbavashi v, Herts Cory,, 66 Haw. 265, 272, 660
P.2a 1308, 1334 ("Even an erroneous exclusion of relevant evidence doesnot
necessarily call for reversal of the trial court, if no prejudice results.”)
7
| b48e10cf12ceca812fb21784132f13bcf3102e7c7ae4d97dece8a857accf370a | 2008-08-26T00:00:00Z |
5b72e481-90a9-45cc-a42f-3c7614cb4569 | State v. Roman. J. Nakayama and J. Acoba concurring in the results only. ICA s.d.o., filed 01/22/2008 [pdf], 117 Haw. 52. Dissenting Opinion by J. Nakamura [pdf]. S.Ct. Order Accepting Application for Writ of Certiorari, filed 06/04/0008 [pdf]. S.Ct. Order of Amendment, filed 09/17/2008 [pdf]. S.Ct. Second Order of Amendment, filed 09/22/2008 [pdf]. | 119 Haw. 468 | null | hawaii | Hawaii Supreme Court | LAW UBRAF
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
= 000
STATE OF HAWAI'I, Respondent-Appellee,
aS 000
ALFRED J. ROMAN, Petitioner-Appellant,
aa
NO. 26359
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-CR NO. 02-1-0350)
SEPTEMBER 11, 2008
MOON, C.J., LEVINSON, AND DUFFY, J5.,
NAKAYAMA ‘AND ACOBA, JJ., CONCURRING SEPARATELY
OPINION OF THE COURT BY MOON, C.J.
on June 4, 2008, this court accepted a timely
application for a writ of certiorari, filed on May 12, 2008 by
petitioner/defendant-appellant Alfred J. Roman, requesting this
court to review the February 11, 2008 judgnent of the
Intermediate Court of Appeals (ICA), entered pursuant to its
January 22, 2008 summary disposition order. See State v, Roman,
No. 26359 (App. Jan. 22, 2008) (SD0) (Dissent by Foley, J.).
Therein, the ICA affirmed the Family Court of the Third Circuit's
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
Decenber 26, 2003 judgment,’ entered subsequent to a bench trial,
convicting Roman of and sentencing him for abuse of family or
household members, in violation of Hawai'i Revised Statutes (HRS)
5 709-906(1) (Supp. 2005) .*
In his application, Roman argues, inter alia, that,
although the ICA correctly concluded that the family court
wrongly ruled that the parental discipline defense under HRS
§ 703-309(1) (1993), quoted infra, was inapplicable to the
instant case, it erred in ultimately affirming his conviction
Specifically, Roman contends that the ICA erred in holding that
the family court's erroneous refusal to apply the parental
cipline defense was harmless based on its conclusion that
respondent /plaintiff-appellee State of Hawai'i (the prosecution)
had adduced sufficient evidence at trial to negate the defense
beyond a reasonable doubt. Oral argunent before the suprene
court was held on August 21, 2008.
As discu
fed more fully infra, we agree with the ICA
that the family court erred in ruling that the parental,
@iscipline defense was inapplicable, but hold that the ICA erred
im concluding that the family court’s erroneous ruling was
harmless. Consequently, we vacate the ICA's February 11, 2008
‘The Honorable George S. Yuda pret
proceedings
fed over the underlying
2 RS § 709-906(1) provides in relevant part that *{iJt shall be
unlawful for any person, eingly or in concert, to physically abuse a fanily or
household menber (-)*
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
Judgment and reverse the family court's December 26, 2003
judgment.
1. BACKGROUND
A. The Bench Trial
on September 11, 2002, Roman was charged by way of
complaint with one count of abuse of family or household members,
in violation of HRS § 709-906, for “intentionally, knowingly or
recklessly [causing] physical [] abuse’ to the seventeen-year-old
son (hereinafter, Minor] of his girlfriend, Kim Powell
(hereinafter, Mother]. A one-day bench trial commenced on
November 7, 2003, The record indicates that Roman intended to
rely upon the justification of self-defense and the parental
Giscipline defense. The prosecution called several witnesses,
including Minor and three police officers who responded to the
incident -- Officers Kelly Matsumoto, Reginald Saludares, and
Dane Bolos.? Roman testified in his own defensi
1. Minor’s Testimony
Minor testified that, at the time of the incident on
May 12, 2002, he was seventeen years old and living with his
mother and his mother’s boyfriend (Roman) in Roman’s house
located in Hawaiian Acres, Puna District, on the island of
Hawai'i. May 12, 2002 was Mother's Day, and Roman had planned to
prepare tacos for Mother’s Day dinner. Minor related that, at
2 minor's broths
Sen inkxa note 4
was also called as the prosecution's witness.
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
approximately 5:30 p.m., Ronan instructed Minor to grate cheese
for the tacos; however, Minor remained “laying on a futon
watching television" and did not perform the requested task.
According to Minor, Roman ‘asked me again (to grate the cheese]
-- the second time he asked me, I went to go do it{:] he told me
1 was doing it wrong and to go lay down or sit down.” Minor went
and sat in the living room; Ronan then left his house to run an
errand. Forty-five minutes to an hour later, Ronan returned and
started yelling at Minor because he did not grate the cheese
correctly. With respect to the subsequent events, the colloquy
between the prosecution and Minor revealed the following:
Q. [By the Prosecution:) So after (Romen) cane into
the houge and he waa Yelling at you, what did he do next?
‘A. (By Minors] “tm, he, he, um, He ((Roman)] started
coming towards me then he started kicking mein my back.
He Kicked you in your back?
Yep:
Gan’ you tell me where on your back?
My lower back,
Left or right side, if you know?
T'gon't iow
And now many times did he kick you?
Coupe.
And what did he kick you with?
Bis leg.
Okay. What happened after that?
Then r got up and then he started yelling at me
‘re and he whacked ne couple tines
‘when you say he whacked you, what does that mean?
Be hit me with bis hand
Sas it an open hand?
‘don't remenber’
tere dia he nit you?
Say face.
S How say times?
SA couple... About two.
men you were kicked in the back, how did you feel?
A iieele sore.
What about when you were Ait in the face?
Sane.
ea
rorerorsrererel rerorererers
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in West’s Hawai‘i Reports and the Pacific Reporter
Minor further testified that Mother tried to intervene, but was
struck by Roman. Thereafter, Roman called the police to report
the inci
t that he had hit Minor and Mother. Minor stated
that, after the incident, he went to stay with his father; while
at the father’s hone, his step-mother called the police to ‘make
a statement because [Minor] had a mark on (his] face.” When
asked to describe the mark on his face, Minor stated that it was
‘a lunp and was red.*‘ Minor also stated that, during the course
of that evening, Roman had consumed about a case of beer.
on cross-examination, defense counsel questioned Minor
regarding a written statement that he made to the police on the
night of the incident:
0. tay Det De) you renenber
filling out a written statement forthe police?
Av biy'minors} Yean.
Q. Do you renenber chat you told them he beat you for
no reason at all?
he I'don't remenber writing that
0. If T were to show you your written statement, would
it help'to refresh your memory On what you told the police?
2. Yeah.
{Defense Counsel:] Your Honor, :/@ like to show the
written statement of the complainant to --
(Q. Does that help you to renember what you told the
police?
A. Yeah,
O. Let ie ask you again, do you renenber telling the
police that he kicked you for no reason?
a Wo.
Q. You also told
*
police that he only hit you once,
Xo
4 As noted previously, Minor’s brother algo vestified on behalf of the
prosecution. He testified that, on May 12, 2002, he and his father went to
Dick up Minor after receiving a’call from ilinor.” He observed that *{e[here
as a small lump on one of (Minor’s] ... cheekbone."
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
Q. 1 believe you told the police he choked you and he
hit you ==
‘Do you renenber you telling them he choked you?
A. Me’ police, yeah:
Minor reiterated that Ronan kicked hin twice. Defense counsel
then proceeded to
k Minor the following:
©. (By Defense Counsel:) Tan’t tt true that you go out
in the yard when you vere living at your Hone, and beat the
tees?
(The Prosecution:] Objection, your Honor, relevance.
‘THE COURT: Beat the what?
{Defense Counsel:] The trees in the yard, your Honor:
He would go out and beat then with a stick.
[the Prosecution:] Again, your Honor, object on
relevance
(Defense Counsel:] Your Honor, [indiscernible] state
of mind’
MB CouRT: Okay, we'll allow tt.
@, pia’ you ws
trees with a stick?
X. tee.
@: Ana'aia you beat those trees so mich that the trees
aiea?
14 to go out An the yard and beat the
set) to kill chickens?
Tine Prosecutions] Objection, your Honor, relevance,
Wnere is this going:
‘HE COURT: Yeah, T think we, we talked about this one
se Of self defense. Ie that what we're
{Defense Counsel:) Yes, your Honor,
‘THE COURT: we'll see, continue, you may continue.
Q. Did you Used to kit] chickens?
Al Yes:
Q, And aid you take a glue stick, a hot
a friend's arm to burn hin?
‘A. Yes, "cause he burnt me.
Q. In fact, haven't you in the past been taken for
counseling on many occasions by your mother's boyfriend, AL
Roman, because of your violent tendencies and your unusual
behavior?
(The Prosecution:] Objection, your Honor, relevance.
thie tg noe
‘THE COURT: I’m going to sustain the objection, yeah.
I'm wondering whose on trial here at this point
ue stick, to
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on redirect examination, Minor again stated that, after Roman's
second request that Minor grate the cheese, Minor did as he was
told but Roman “didn’t like the way that [Minor was} doing it.*
When asked how Mother would discipline hin if he misbehaved,
Minor responded that:
inor:] She would spank =e,
5y the Prosecution: ] And where would she spank
you?
wy
ala
Did she ever slap you on the
fe ever kick you?
2. Police officers’ Testimony
officer Bolos testified that, on May 12, 2002, he
responded to a domestic abuse call coming fron Ronan’s residence.
He stated that he spoke with Roman and Mother, who told him that
they had been arguing. Officer Bolos did not speak to Minor and
testified that Minor had already left by the time he arrived at
the residence. He further indicated that he closed "the
miscellaneous public bulletin” because he “didn’t feel a case
needed to be made being that [Mother] told [him] that everything
was okay between (her) and (Roman).
Officers Matsumoto and Saludares testified that, on the
day of the incident, they responded to a domestic abuse call made
from Minor’s father’s residence. Officer Matsumoto stated that,
when she arrived at the residence,
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(Minor) was in the garage area. Apparently he vas upset. I
observed that hie facial area was red but there was To
bruising. Apparently, he was allegedly struck in the face
several tines by his other's, I believe, boyfriend, Alfred
Roman. I asked him 1f, us, 1f he needed any kind of medical
assistance, uh, or anything, he said, no, be didn“e.
Officer Matsumoto did not notice any swelling to Minor‘s face.
on cross-examination, defense counsel asked officer Matsuroto,
‘when you saw the redness to the face, you did not know whether
it was an injury or not, correct?" Officer Matsumoto responded
in the affirmative and further agreed with defense counsel that
Minor was “fair skinned" and “had a red complexion.
Officer Saludares also testified that, when he spoke to
Minor, he observed that Minor “had some redness on hie face” and
‘scratches on his front neck area.’ Officer Saludares and the
prosecution then entered into the following colloquy:
9. [By the Prosecution:} what was [itinor's) demeanor?
1K. (sy Officer Saludaves:] (Minor) spake to Se in a
quieter lover tone, appeared to be a little afraid. just
Stying to think of a way to describe it but afraid in a way.
Not comforeable.
(@. wan he afraid of you?
Q. What made you think he was afraid?
K. Um, from what he cold ne, che incident chat
ccurrad that night and, uh, Just his demeanor, the way that
he spoke to me having a, a -- when he was talking about the
Enelgent that night’
Q. waa be upsst?
Ai Yes, a lietle
what was he telling you about the incident that
9
saber
Un, he informed ne that, um, his mother's boyfriend
had arrived home that Might, be war intoriested, at which
tine he had, ‘uh, began yelling and swearing at [Minor] and
hhad kicked hin in his Lower back area as well as began to
choke him on the front of hie neck area.
0. Officer, were you the lead investigator on this
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@. And based on your observations of [Minor] and what
he told you, what did you doz
‘i. Well, T investigated further. We had took
photographs of the insuries, (*] officers assisted in
{neerviewing witnesses. Taleo, um, later made contact with
the suspect, iue., Soman.) in the case and hed advised hin
of] hie rights and obvained a statement
on cross-examination, officer Saludares testified that Minor was
struck in the face once.
3. Roman's Testimony
Roman testified that he and Mother had been
*boyfriend/gixifriend” since 1995 and that he treated Minor "1ike
@ step son.* Roman explained that he
moved in with (Mother) in 1995, this wag in Ainaloa, uh, 1
Swed my own home and we decided that after T was through
ith che probleme 1 had with wy ex-wife, that it was time
Yor us to'move in back to my home and we moved back in 1996,
Tbelieve it was, about a year later, uh, took care of
iuinor] Just 2ike (hel was my own KLGL.1
According to Roman,
(i]t was mother’s Day. 2 don’t have a lot of money
and it was sother’s Day and\I know chat [Mother], one of ber
favorite foods, is tacos -- (Mexican tacos eo T decided to
hake a taco dinner for her as Mother's Day dinner’
Okay) there's a -- if T may say this, 1 had already
cone £0 the store and returned before this incident even
Secured. 1 had gone to the store, I had purchased what was
hecessary, 1 came back, after which T had to leave again but
hot until T bad asked {Minor} 1¢ he could please grate the
Cheese and shred some lettuce that T had asked him before I
oft the second tima but 1 had done all my shopping as of
Chat point alveaay.
fieit) te -- 1 bought nim one of those walkman things
and he was’ laying dows in front of the televicion with his
walkean Just Blaring and T dint talk to (Minor) when T
Feturmed. I walked into the house and I walked over to the
Fefrigerator and? looked into the ice box and T seen chat,
the lettuce nor the cheese or any of that had even been
touched. Tt was still in the original containers.
* ae does not appear from the record that the photographs were adnitted
at the bench trial, ‘In fact, neither the prosecution nor defense counsel made
any mention of the photographs at trial
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I started calling [Minor].
e’dia'not respond because the stereo on his head vas
0 Lowa’
Re'was laying down, facing the TV, and 1 walked maybe
from here to that desk away from him and 7 said, [Mince]
and he turned and he looked at me and --
You know, 1 said, [Minor], what about the cheese and
he just kept staring at ne, just staring, he just kept
Tooxing at me.
i waiked up to him, I kicked him dn his okete,
fie’ spun around, he spun to his feet, uh, T had no idea
what vas on his mind!
{and he stood there with a) clenched fist
bn, honestly, 7 felt at that point that I had fully
ost all'control of [Minor] as far as being a friend and a
ember of the family.
i dearéed yelling at him and he kept locking at ne, he
kept looking at me and 1 finally said, (Minor), hey, woat is
this, Imean, You want to hit me, go chead and hit me, and
he stepped forvard towards me and f slapped him. Your
Nonor, T slapped him acrosa the cheek.
I found myself -- well, he kept == he still would not
respond. There ‘as absolutely no response from him and at
first, 7 was going to call hie father and have the father
cone and pick the boy up and take him to hig home. And at
that point, T said, no, T think this should be recorded so T
ade & phone call to the (plolice [dlepartnest and t
told then of the incident that had happened and if they
could send some officers up as soon ae possible at which
time r'vent downstairs and sat in the patio until .”. the
officers arrived
Roman further testified that he "wanted to be noticed as the head
of the household which has never happened with [Minor] for many,
many years, which is why I never did physically, let me restate
this, slap, hit, I have never even punished (Minor) in all the
years that he was with me.’
Defense counsel also inquired of Roman whether he had
cution objected, and
problems in the past with Minor; the pro!
the family court sustained the objection. Defense counsel,
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thereafter, asked Roman whether, *[i]n the past, when [he] had
problens with [inor, he] took [Minor] to therapy," to which the
prosecution again objected. The family court indicated thet,
swith respect to therapy, the [court accept (ed) the fact that
[inor was} in therapy and, uh, did not find the fact that he’s
in therapy will provide an excuse or justification for [Roman's]
conduct on that day."
on cross-examination, Roman conceded that he drank a
six pack between 2:00 p.m. and 6:30 p.m. on the day of the
incident. The prosecution, thereafter, asked Ronan:
9, {By the Prosecution:} you testified that
tyou! Kicked the victin to get his attention?
{By Ronan:) 7 kicked him in Big okole, yes.
And you slapped him in hia face?
3nd T’siapped hin in bis face.
Yen't it true you attempted to choke hin?
hela hin beck at one point Because I wasn't sure
exactly what was on his mind(.1
. iajan'e Le true that [sinor's} mother had to
Ancervene and pull you off of [Minor]?
Q! Ten’t it true thet you called the police and you
said, Y suet Bit ay girlfriend and my stepson?
Q. And you said you aid it because you, you were goint
to dithise the situation? ” °
A. twas trying to 30 —-
Q: You were trying £0 diffuse th
and slapping [itinor]?
Rritioy ho, Ro. T diffused the
incident that happened.
(0. fan'e it true that [Minor] attempted to grate the
cheese’ and you went and told him ehat he wasn’t doing 1
Hight and you told him to go and sit down?
Re abeotutely not.
porer
eteuation by keking
stuation of the entire
{As Aiscussed infra, Roman also challenges the ICA's conclusion that
the family court's exclusion of cartain evidence, assuting it was error, was
nevertheless harmless. The excluded evidence pertains to Roman's prior non
Physical attempts to address Minor's sisconduct, including evidence of Roman's
Gecision t0 seek therapy for Minor, that would have been adduced from Minor's
Gnd Roman's testimony, ae well ae from defense witness Prederick Williams.
Phip. (Dr. Williana), which the family court excluded based on relevancy,
oil
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Q. Zante it crue that [ilnor] did exactly whet you
told him to and he went and sat” down?
A. He never vas gracing the cheese 60 why should 7
tell him to eit down?
on redirect examination, defense counsel asked Roman “why did
[he] make the statement that [he] had just hit [his] wife or
(his] girlfriend and [Minor], to which Roman responded:
cause in my heart of hearts, T wanted this ended end
Z wanted it ended with the police and 1 wanted then to be
there as witnesses for me of what I en trying to do in this
situation that T believe it’s tine he leave the house and go
Live'with his father, which le what the boy wanted to 0 for
year “~ about a year before this because there is no
Sacspline at the father's house
4, Closing Arguments and the verdict
During closing arguments, the prosecution contended
that:
(oman) even attempts to raise the parental
Giécipline defence, one, I do not think it applies in this
case.” Un, the victim testified that[.] when his mother
Gisciplines hin, she spanks him on hic rear end. "she
Goeun’t kick him in the back, she doesn’t slap Aim in the
face. Also, your Honor, if you take the age of the child,
at the time’ 1) years old, un, I do not believe the
Biaconduct of the child, {f there 1s even any misconduct, he
Sttenpred to grate the Cheese, (Ronan) didn't iike the wey
he did, [Roman] told him to go and sit dow, he did exactly
hat AG was told to do go T don't see any misconduct on the
part of the child here
counsel, however, argued that:
Basically, your Honor, this is a fabrication of a child who
Goes not vane to be disciplined, At 17 years old, it's
pretty hard to spank a child on the bottor. Mr. Honan was
the man of the household, the head of the house, in essence,
the parent. “The [mother was sleeping, he had asked the son
to help with the meal. The son was defiant, refused to do
what he was being asked. The son's face was red. His face
was red today. He has a reddy complexion. Perhaps a snail
Welt showed up but had Mr. Soran intended co hurt him, there
Soulé have been mich more than a welt showing up.
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RS § 703-309{] permite the use of physical
force to pinian a minor child for ble or her misconduct and
to deter that minor from future misconduct. A parent's use
of physical force to panish or deter, therefore, is not
Subject to crininal liability provided Le 18 reasonably
felated to the welfare of the minor and within the scope of
Allowable physical force under the [sJtatute. | Although the
Sse cf physical force of the child rearing mached aay’
engender debate, it ia an option parente are free to employ
within the bounds of the (s|tatute. Your Honor, there was
fo evidence that ight that the child was repeatedly beaten.
Twould argue, your Honor, that this was just a
heagire of Mr. Ronan trying to discipline (Minor] when he
as defiant and refused to comply with his (request). ("]
on rebuttal argument, the prosecution again reiterated that, in
ite view, the parental discipline defense was inapplicable to the
instant case, arguing that “kicking the child and slapping a
child in the face is not reasonably related to his misconduct {.]*
Subsequently, the family court orally announced its
factual findings -- specifically that:
We have @ situation where, um, both adults have bad prior
Felationships and, uk, both adults meaning Mr. Ronan and
{Mother] and that they entered into a relationship with
inirly grow children involved and, Uh, it has been in such
Situations, « situation where people have to adjust to a
‘hole lot and this adjuetsent process is quite difficult for
Gveryone involved[.) Alfred Ronan is a fairly large person
and he nanner and deneanor 1a quite masculine and T think
he haa that sense of being in charge sort [sic) to speak.
The {elourt doews’t know (Mother] but che [elourt senses
Ghat she bad custody of the [Minor] and the relationship
Between [Roman] and (Mother) necessarily involved [Minor]
a, the [clourt also, uh, gained from the testimony that
‘itinor], hy had some emotionel problens, whether they’re
Felated' cathe divorce or not, the (elourt doesn’t know
that, Dut he did have sore probless and, uh, had to, had to
be treated, perhaps, aa @ special needs type of person and,
therefore, ‘uh, wae someone whose guidance and discipline had
to take a different: [indiscernible] ~~ different in the
gense that not the, ot the usual, uh, upbringing and the
{clout also senses that Mr. Rona recognized this and tock
steps to take care of the situation and that’s how we got
1 Te should be observed that, although the justification of self-
defense was raised at the comencenent of trial, the parties eppeared to focus
Srinarily upon the parental discipline defense by the end of trial. mdeed,
(5 discussed infra, the fanily court algo focused upen the parental discipline
Setease and, in fact, made no mention of the defense of self-defense
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De, Williane involved in this picture With respect to
this particwar day, that is the date of May 12,
2002, ME. Roman, Uh, Wanted to have thie special day
for (wother] and had expected that (Minor) would participate
in this special occasion for (mjon and {mom was asked to
take it easy and rest and that the evening meal wosla be
prepared by Mr. Ronan and (Minor). “Us, the incident shat
Eeehepired’ ub) wap ‘not, in the’ (clours-auagtieeeioe ae
Tthink We. Ronan wanted hin to -- wanted [uinor) to
participate in this special day for’ (mJother and, uh, wanted
Eo have sone kind of influence in providing [Minor] with
sone Kind of incentive to help make this special day for
{miom and, uh, unfortunately, "uh, thus intent to provice
motivation and create a situation where, us, mom is treated
Specially not only by Alfred Ronan but also by (Minor). Os,
farmed out fo be a situation where Mr. Roman tried to gan
Control over the situation, i= escalated ro that point
Where we want you to take part and it got to a point where,
Sh, I’m going to sake you take part in this situation. Um,
with respect. to, uh, what happened that day, uh, the iclourt
Fecognizes that there are these many, many factors involved
land T thirk the [clourt has pointed ove that we"
with a gituation shere [sic] not dealing with someone who’
‘nag_done_ something wong. were dealing wach somesnina.
Tn other words, you know, there's Aor
(indiscernible) you're a dishonesty (sic) or wnat, dts dust
that insction on the Rart-of Minor] ‘so I’m pointing that
ut Because, uh, we come to The area of parental discipline
where discipline is to correct misbehavior ané, uh, ae the
(clourt sees it, uerre not ina situation where were
correcting mabensvlor but we're trying to rake eotrol of
where wer Th, BO,
the; uh, other aspect of this case, which the (ejourt hai
alluded’ to when we talked about contrel, is that stone
wade slap, Ub and that was ae the
Teachion co what waa deaned to be defiance’ Now, uh,
Shether the defiance justifies the slapping is a matter for
the {eloure 2
evel of enotion, [Minor] was kicked. —ne-stocd up he
‘Biated at Hr. Roman, he tad bis tite clenched, and ur
Soman. ub, wae also at 2 ban pltes of emotion and took thts
Eo bea defiant child. probably with the head chones stil.
So-and blaring. and nor aiving heed te whee Mr Rosen had
supected and. uh. there was such 2 fever of enoticn that Mc.
‘sen bit_ne or something to that effect. inviting a
‘Sonftontation. There nay be justification for the reaction
and at this point, we have, uk, Mother who is on the scene,
and, ‘uh, beconing part of what I/II relate to as a fracas
that thie physica? confrontation and the [elourt ie
Estiefied this confrontation involved thres people, that sc
ras physical, that there was a point that Mr, Roman put his
ands on [siinor]’s neck, and there was a point where
([Wother] also physically was man handled or struck by Mr.
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(gmphases added.) The family court, thereafter, ruled that the
parental discipline defense did not apply to the above facts
because *[i]t was a situation where Mr. Roman tried to assert
control over the situation and did not get his way.
consequently, the fanily court found Ronan guilty of abuse of
family or household menbers, reasoning that:
oat the [clourt has noted is that [Roman] is not denying in
ny way that he had kicked, that he testified that he had
Kicked the child, and T won't call him a child, the 17 year
old boy, and he had slapped the boy. Um, and the (elourt.
further’ finds that those actione weve done in anger, first
ith respect to getting the chilé's attention and secondly,
In'reaction to the boy's defiance.
‘The family court sentenced Roman to, inter alia, two
years probation and fifteen days imprisonment, thirteen days of
which would be stayed pending the probationary period." ‘The
family court entered its written judgment on December 26, 2003
Roman filed a timely notice of appeal on January 23, 2004.
Roman's sentence was stayed pending appeal.
B. Appeal Before the ICA
on appeal, Ronan maintained that the family court erred
in convicting him of abuse of family or household members
because, inter alia:
+ me family court aleo ordered Ronan to (1) undergo a domestic
violence intervention progran; (2) submit to an alcohol abuse assessment,
follow recomended treatnent, and be subject to any requested random
Urinelyeia screening for drugs and/or alconol; and (3) not possess or consume
Slcotol during his probation period
use
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(2) the [family] court was wrong to conclude that the
parental discipline defense (HRS § 703-3092) {]) was
Tnapplicable co the instant case; (2). (the prosecution]
failed te negate Roman's parental discipline defense; {and}
(G) the [fantly) court exred by excluding evidence of
Roman's previous non-physical attempts to deal with Minor’s
Sataconducte,* which constituted a vielation of Roman's
constitutional right £0 present a defensel.]
sp0 at 1-2.
on January 22, 2008, the ICA, in a 2-1 SDO, affirmed
the family court's December 26, 2003 judgment, with Associate
Judge Nakamura dissenting, Specifically, the ICA resolved
Roman's above contentions as follows:
(2) ‘The family court clearly erred by not applying the
parental discipline defense in the instant case becauee
Roman's testimony, however weak, inconclusive, oF
unsatisfactory, was probative of the fact chat (a) Roman bad
parental authority over Minor, (b) ‘the force at issue was
exployed with due regard for Kincr’s age and size, ané (c)
the force waa reasonably proportional to the misconduct
being punished and reascnsbly believed necessary to protect
the welfare of the recipient, gate v. stocker, 90 Hawai'i
bs, 95, 978 P.2d 399, 409 (1999) ; age ARS 5 703-3092)
81 Hawai'i 5, 10-11, 921 P.24 725, 730-33,
(13567
i2) the fanily court’s error in ruling that the
parental discipline defense @id not apply in the tnatant
Ease vas harmless because the (prosecution) provided
sufficient evidence at trial to negate Ronan’s proffered
parental discipline defense. Given Minor's version of
Grents, there wae substantial evidence to support =
Conclusion that Ronan's kicking Minor in the lower back,
making it sore; hiteing him twice on the face, leaving
Fedness, soreness, and a lump there; arid choking Minor
because Minor did'not grate the cheese as instructed and
then aid not grate it ae Ronan wanted was not reasonably
proportional fo Minor“s misconduct or reasonably believed
Recessary to protect Minor’s welfare.
(G) Assuming(,) arguendo, the family court ebused its
Giscretion by excluding evidence, based on irrelevance, of
Roman's previous non-physical attempts to deal with Misor’
Sslsconduets* (Ronan tegtified thar he had never disciplined
of even punished (Minor) prior to the incident), such error
ae harmless:
$00 at 2-3. The dissent, however, believed that the fanily
court's failure to consider Roman’s asserted parental discipline
defense “affected (Ronan’s] substantial rights and was not
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harmless error." Dissenting Op. at 1. The dissent further
opined that "the family court harmfully erred in excluding
evidence of Roman’s non-physical attempts to deal with previous
incidents of misconduct by Minor (because t]his evidence was
relevant, under the parental discipline defense, to whether the
force used by Roman in this case was reasonably proportional to
the misconduct being punished.’ Id.
‘The judgment on appeal was entered on February 11,
2008. Roman timely filed his application on May 12, 2008. as
previously stated, this court heard oral argument on August 21,
2008.
TT. STANDARDS OF REVIEW
A. Conclusion of Law
A [conciueion of aw] ie not binding upon an appellate
court and is freely reviewable for ite correctness. Tis
Court ordinarily reviews (conclusions of law] under the
Fight /wreng standard. Thus, a (eonclusion of law) that Le
ipperted by the [fanily} court's finding of fact and that
Fetlects an application of the correct rule of law will not
be overturmed- However, a [conclusion of law) that presents
Rixed questions of fact and law is reviewed under the
Clearly erroneous standard because the court's conclusions
fare dependent upen the facts and circunstances of each
individual case.
State v. Reis, 115 Hawai'i 79, 84, 165 P.3d 980, 985 (2007)
(internal quotation marks, citations, and original brackets
omitted) (format altered).
8. Harmless Error
This court has stated that:
Error ie not to be viewed in isolation and considered purely
in the abstract. rt must be examined in light of the entire
proceedings and given the effect to which the whole record
Shows it is entitled. In that context, the real question
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‘becomes whether there is a reasonable possibility that error
ot harmless beyond a reasonable doubt, and the judgment of
conviction on which Se may have been based mist be set
aside.
State v. Gano, 92 Hawai'i 161, 176, 986 P.24 1153, 1168 (1999)
(internal quotation marks, citations, and original brackets
omitted) (format altered)
HIT. DISCUSSION
on application, Roman contends, inter alia, that the
ToA, having concluded that the family court incorrectly declined
to apply the parental discipline defense, erred in affirming the
family court's December 26, 2003 judgment. Specifically, Roman
believes that the ICA erroneously held that the family court’s
error was harmless based on ite conclusion that the prosecution
had adduced sufficient evidence at trial to negate the parental
@iscipline defer
beyond a reasonable doubt.
As previously stated, Roman was charged with and
convicted of the offense of abuse of a family or household
members, in violation of HRS § 709-906. iis conviction required
proof beyond a reasonable doubt that: (1) he physically abused
Minor; (2) he id so intentionally, knowingly or recklessly; and
(3) Minor was a present or former family or household menber of
Roman's. See HRS § 709-906(1). Roman, however, believes that
this use of force upon Minor was justified pursuant to the
parental discipline defense under HRS § 703-309(1), which
provides:
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‘The use of force upon or toward the person of another
se justifiable under the following circumstances:
(d) the actor is the parest or guardian or other
person similarly responsible for the general
fare and supervision of a minor, or a person
scting at the request of the parent, guardian,
Gr other reupontible person, and:
(a) The force is employed with due regard for
the age and size of che minor and is
Eeasonably related to the purpose of
Safemuarding of promoting the welfare of
the minor, including the prevention or
‘misconduct; and
gned to
Cause oF known to eveate a risk of
Sausing substantial bodily
injurysC} distigurenent,
pain or mental distress, oF
Reurological dasage.
rr
Based upon the plain reading of subsection (1), invocation of the
parental discipline defense mandates that Ronan
rake showing that the record contained evidence £0 support
the folloving elenents: (1) ne was a parent, guardian, oF
‘ther person as described in HRS'§ 703-309(2) 7 (2) he used
foree ageinst a minor for whose care and supervision he was
responsible; (3) Bis use of force was with due regard to the
age and eize of the recipient and reasonably related to the
purpose of safeguarding or pronoting the welfare of the
Riner, including the prevention or punishment of misconduct
and (4) the force used was designed to cause, oF known to
Greate a risk of causing, substantial bodily’ injury,
Sistiguresent, extrene pain or mental distress, or
peurclogical damage.
State v. Crouser, #1 Hawai’
(1996) (citation omitted), Further, the parental discipline
5, 10-11, 911 P.24 725, 730-31
defense was available to Roman “so long as gone evidence was
adduced, no matter how weak, inconclusive, or unsatisfactory it
> uns § 707-700 (1993) defines “aubstantial bodily injury’ as bodily
injury which cause
(2) A major avulsion, laceration, or penetration of the
skins
(2) M'chemical, electrical, friction, or scalding burn of
fecond degree severity;
(3) A’bone fracture;
(@) 2 serious concussion; or
(5) X tearing, rupture, or corrosive damage to the
‘esophagus, viscera, or other internal organs.
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might be, which was probative of [the aforementioned elements) ."
State v. Stocker, 90 Hawai'i 95, 95, 976 P.2a 399, 409 (1999)
(some emphases in original and some added) (internal quotation
marks and citations omitted). Here, the ICA correctly concluded
that the parental discipline defense was available to Roman and
that the family court erred in failing to apply the defense
‘because Ronan’s testimony, however weak, inconclusive, or
Unsatisfactory, was probative of the fact that. (a) Roman had
parental authority over Minor, (b) the force at issue was
eployed with due regard for itinor’s age and size, and (e)
the force was reasonably proportional to the misconduct
being punished and reasonably believes necessary to protect
the welfare of the recipient:
S00 at 2 (citations omitted). Indeed, at oral argument before
this court, the prosecution conceded that the parental discipline
defense applies in this case, but believed that it had carried
its burden of disproving the defense beyond a reasonable doubt.
As such, the issue turns to whether the ICA correctly held that
the family court's error was nevertheless harmless because the
evidence proffered by the prosecution was legally sufficient to
Gisprove the defense of parental discipline. spo at 2
Roman contends that the ICA erred in its harmless error
holding because the family court's
failure to consider Mr. Ronan‘s parental discipline defense
azounted to a denial of [his] constitutional due process
rights to present a defense, and to proof beyond
reasonable dost.
Tt is well-estabiished, aa a precept of constitutional
as well as statutory lax, chat due process requires that the
Prosecution establish proof beyond a reasonable doubt of
Every clenent of the crine charged including that required
to negative any non-affirmative defenses, The family
court's erroneous disregard of Mr. Roman's defense eroded
the [prosecution] burden to prove each fact necessary to
establish str, Roman's criminal culpability in violation of
his constitutional rights. Such an error, when it ands up
-20-
*** FOR PUBLICATION ***
in West's Hawai‘i Reports and the Pacific Reporter
precluding consideration of a defense by the trier of fact
He not gubject to harnless error review.
‘here, as inthe instant case, the trier-of-fact
is altogether precluded from considering a defense, it is
not possible to conclude that such error sight not have
Sonteibuted to the conviction
Additionally, Roman asserts that
[tlhe evidence adduced at trial shows that Mr. Roman's use
of force met all of the requirenente set forth in HRS 5 703-
Sog(i}. Mr. fonan’s use of force by Kicking [Minor] in the
uct to get his attention and slapping him on the face when
{uiinor] physically challenged him was reasonable considering
iMinor] Was seventeen years old, and the force was used as
punishment of [Minor] "s disobedience and insolent defiance
Of ur. Roman's authority. It is undisputed that Mr. Roman's
luse of force at most caused [Minor] a little soreness in nie
Tower back and redness anda snail lump on mis cheek for an
unknown duration. Despite the fanily court's errors in
excluding relevant evidence, as discussed above, the record
Shove that the elenente of the defense were met and the
{prosecution} did not disprove any of these facts beyond &
reasonable doubt.
As discussed above, because Roman had met his burden
then
with respect to the parental discipline defense, the burde:
shifted to the prosecution to prove beyond a reasonable doubt
that Roman’s conduct did not come within the scope of parental
discipline as prescribed in HRS § 703-309(1). Stocker, 90
Hawai'i at 95, 976 P.2d at 409; see also Crouser, 81 Hawai'i at
11, 911 P.24 at 731 (*the prosecution had the burden of
disproving beyond a reasonable doubt the (parental discipline]
evidence that was adduced, or proving beyond a reasonable doubt
facts negativing the . . . defense") (citation omitted). In
other words, the critical inquiry is whether the prosecution
presented sufficient evidence to negate Roman's parental
@iscipline defense beyond a reasonable doubt, to which the TCA
answered in the affirmative.
-21-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
Recently, this court succinctly announced that
the legislature, in creating the parental [discipline]
Gefenss law, recognised the right of parents to discipline
their children; that right, hovever, is not absolute. In
other words, i
Gieciplining their chides” but eu an
sith die regard as to the aliunt of force utiiiced ond must
be directed co prosote the welfare of the chad the-fares
used must (1) reasonably be proportional to the misconaucr
beitic puntahed and (2) reasonably be believed neceuaary $0
Brotect the weltare-of the reciptent, The means used <3
Ssterninina whether force Te Teast
ature of che tnfuries int
ged sae Gesicned to cause or mom to-create a risk of
‘Sausing ubssansiel bodily iniury, distiqurenent,extrene
Bain of ental distress. or neurological damage Given the
‘Shid-s 08 ad glug. These required factors are obviously
General in nature and, by their very terms, place a large
Snount of discretion with the courts to determine whether
the actions of @ parent fall within the paraneters of
parental discipline, os set forth in Hes § 703-309(1)
Clearly, there is no bright line that dictates what, under
all circunstances, is unreasonable or excessive corporal
Dantshment. Rather, che
ding’ Lo the ent d's shvstaue and at
istonduct of the chila, che nature of the discipline, and
ithe surrounding circussrances it necessarily follows
That the question of reasonableness or excessiveness of
physical punishnent given a child by a parent is detersined
on a case-by-case basis and is dependent upon the particular
Circumstances of the case.
State v. Matavale, 115 Hawai‘i 149, 164-65, 166 P.3d 322, 337-38
(2007) (some emphases in original and some added) (citations
omitted).
Here, the evidence demonstrates that, at the time of
the incident, Minor was seventeen years old. Although he was a
minor at age seventeen, Minor was hardly a child. Indeed, the
family court stated, *1 won't call him a child, the 17 year old
boy’
"he family court explicitly found that the instant
concerned
-22-
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in West's Hawai'i Reports and the Pacific Reporter
seoshady who bas oot done-something-as resested ior this
Tn other words, you Kiow
‘SSERSEE ene part of ulnar! so. t'm posaeing that out
because, uh, we cone to the area of parental discipline
Where discipline ie to correct mighehavior aha, uh, as the
(clout sees ic, weirs not in a situation where we're
‘fhetSitustion shere verre not having cooperation.
(Emphases added.) Based on the foregoing, the family court
apparently believed that Minor's failure to grate the cheese as
Ronan requested, or failure to grate the cheese to Roman's
satisfaction, was essentially an issue of “not having
cooperation’ as opposed to “misbehavior* or misconduct. The
family court, therefore, concluded that the parental discipline
defense did not apply. Curiously, however, the family court also
described Minor as a “defiant child,’ based on Minor’s
‘st(anding] up* and ‘star{ing]" at Roman with “his fists
clenched," and that Roman’s conduct in slapping Minor was a
sreaction to the boy’s defiance.
Characterizing Minor as being defiant but, at the same
time, characterizing Minor’s behavior toward Roman as simply
demonstrating a lack of cooperation defies logic. Indeed, Ronan
asserted -- before the ICA -- that the family court's finding of
Minor's lack of cooperation as not amounting to punishable
misconduct “goles) against common
and the experience of any
parent{.J* In our view, not cooperating with a defiant attitude
and demeanor is ‘misbehavior,* ive,, misconduct, on the part of
Minor as such behavior shows disrespect for parental authority.
Zt seems natural that Roman, as one of the persons responsible
-23-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
for the general care and supervision of Minor, would view Minor’s
attitude and demeanor as misconduct that warranted discipline.
In describing Roman's actions, the family court ~~ having
considered all of the evidence presented at trial -- expressly
found:
Anlhere was a kick, uh, that was to get attention, and at
another point, Gheie mia a giag, uh, ond that waa, aa the
{[clourt understands the ~~ at Least from one perspective, =
reaction £0 what was deemed to be defiance... We Xow
that at this point there was a high level of ‘enotion:
adds fists clenched. and Wr "Ronan, uh, was also at a
high pitch of enotion and took this to be a defiance child,
probably with the head phones still on and blaring, and not
Giving heed to what Mr. Ronan had expected and, un) there
faz puch a fever of emotion that Mr~ Roman even #aid words
te'che effect that if you ike, you can hit me or something
to that effect, inviting @ confrentation.
(emphases added.) Roman, thereafter, slapped Minor in the face.
According to Minor, Roman's discipline caused a little soreness
in his lower back and redness and a small lunp on his cheek for
an unknown duration. There was no evidence of bruising or
swelling: nor @id Minor require medical attention. Further,
there was no evidence to indicate any detriment to Minor's
overall well-being or physical, emotional or psychological state.
aq HRS § 703-309(1)(b). ‘Thus, considering the totality of the
facts and circumstances, the force employed by Roman (1) wi
reasonably proportionate to Minor’s defiant behavior towards
Roman and (2) was reasonably believed to be ne
jary to
discipline Minor for his defiant attitude and demeanor.
Moreove:
the degree of force used was “not designed to cause or
known to create a substantial risk of causing bodily injury,
-2a-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
disfigurement, extreme pain or mental distress, or neurological
Gamage." ERS § 703-30(1) (b)
The discipline used by Ronan was slightly less than
that used by the defendant-father upon his seventeen-year-old
daughter in State v. Kainimoku, 9 Haw. App. 345, 841 P.24 1076
(1992). In that case, the trial court found the father’s use of
force against his daughter unjustified under HRS § 703-309(1)
(2985) and convicted the father of abuse of a fanily or household
member. 9 Haw. App. at 348, 861 P.2d at 1078. Specifically, the
father slapped his daughter on the face and punched her shoulder,
leaving a scratch and a bruise, and causing some pain of unknow
Guration. Id, at 347-48, @41 P.2d at 1077-78. On appeal, the
ICA reversed the father’s conviction, finding that the force used
was within the bounds afforded to the father
@ parent. Id. at
352-53, 841 P.2d at 1080. Likewise, in State v, Deleon, 72 Haw.
241, 813 P.2d 1382 (1991), the defendant-father’s conviction of
abuse of a family or household member was reversed on appeal even
though his use of force was more severe than that of Roman.
There, the father struck his fourteen-year-old daughter with a
folded belt six to ten times above her knees, causing pain
lasting for an hour and a half, and bruises lasting for about a
week, 72 Haw. at 242-43, 813 P.2d at 1383
More recently, this court in Matavale held that the
defendant-mother’s used of force upon her fourteen-year-old
Gaughter fell within the parameters of the justified parental
-25-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
discipline defense statute. 115 Hawai'i at 168, 166 P.3d at 341.
In that case, the mother
Gisciplined her dlaughter for her continuously defi:
behavior in refusing to answer [the mother’s questions and
in Tying to ber. Specifically, (tne lather hie [the
Glaughter with a plastic backpack because [the dJaughter
Fefused to respond to. [the mother's questions(. ‘The
Blother hit [ehe dlaughter wich a plastic hanger because
{the laughter again refused eo answer (her] questions
the mlother laleo! his [ehe dlaugneer once with the flat
side of a snail car brush and once with a plastic handie of
a tool.
Id. at 167, 166 P.3d at 340. The daughter testified that,
although she experienced some pain at the time of che
Incident, (the mother was not hitting her hard. In fact,
[the dJaighter indicated that, out of the four implements
used by [the sJother, two of them (the flat side ef the car
brush and the plastic handie of the tool) did not hurt oF
Gid "not really" hurt and the other two (the backpack and
the plastic hanger] only hurt between levels two and five
(on s teale of one to ten with ten being svery painful)
Ads at 166, 166 P.3d at 339. ‘The daughter's injuries consisted
of a few small bruises that were visible for about a week. Id.
Based upon the totality of the facts and circumstances, this
court held that the force employed by the mother was reasonably
proportionate to the daughter's defiant behavior towards her
nother and was reasonably believed to be necessary to discipline
the daughter and that the force used did not exceed the
protection of HRS § 703-309(1). Id, at 165-66, 166 P.3d at 338-
39.
In contrast, the ICA in State v. Tanielu, 82 Hawai'i
373, 922 P.2d 986 (App. 1996),
=26-
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
agreed with the trial court that the *viclousness of the
attack (the) defendanc was involved in severed any
Felationship between the use of force and the welfare
he daughter which aight be considered “reasonable,
{82 Hawai's} et 381, 922 P.2d at 994 (oone internal
quotation marks on{tted). In that case, the defendant
eked his fourteen-year old daughter in the shin, slapped
her six to seven tines, punched her in the face five to ten
Eines, stonpea on her face, and pulled her ears after
discovering that she, inter alla, violated his orders not to
see her verbally and physically abusive eighteen-year-old
boytriend, id. at 376-77, 922 P.2d at 989-90. ‘Toe ICA held
that, based on the nusber and nature of the slaps, punches,
icks inflicted upon the daughter and the police
observation of the daughter's laceration and
contusions, the fanily court did not err in rejecting the
parental (discipline) defense. id.
Matavale, 115 Hawai'i at 164, 166 P.3d at 337 (other citation
f
omitted) (summarizing Tanielu). Similarly, in Crouser, the
defendant punished his girlfriend's fourteen-year-old daughter
because she forged a school progress report by (1) hitting hi
across both sides of her face, (2) knocking her to the floor,
(3) throwing her on the bed, and (4) hitting her bare buttocks
with a plastic bat to the point where the bat broke. 81 Hawai'i
at 8, 911 7.24 at 728. The daughter testified that she had a
hard time sitting and felt dizzy for an hour or so, and her
bottom was bruised, had a deep reddish-purple color, and hurt for
a couple of weeks after the incident. Id. at 8-!
, SIL 2d at
728-29, ‘This court affirmed the defendant's conviction of abuse
of @ family or household menber because the force inflicted upon
the daughter exceeded the permissible level of discipline. id
at 12-13, 911 P.2d at 732-33
-27-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Based upon the foregoing discussion, we do not believe
Roman’s discipline was excessive in light of Minor’s age, his
misconduct, and the comparatively mild physical force used by
Roman. In both Crouser and Zeniely, the injuries suffered by
the minors were far more severe than Minor’s injuries. The pain
in those cases lingered for several weeks and were far more
severe and intense than the “little sore[ness]" experienced by
Minor, Furthermore, the nature of the injuries suffered by Minor
in the instant case and the duration of any resulting pain were
not nearly as severe as those described (1) in Kaimimoku, where
the minor was slapped in the face and punched in the shoulder
several times, leaving scratches and bruises and causing some
pain of unknown duration, (2) in Deleon, where the minor was
struck six to ten times above her knees with a folded belt, and
(3) in Matavale, where the minor was struck several times with
various instruments, leaving some small bruises. Yet, in those
cases, the appellate court determined that the degree of force
used did not exceed the boundaries of HRS § 703-309(1) (b). Here,
no evidence was adduced that the degre
of force employed by
we are mindful that, in determining whether the force employed by
Ronan was Feasonable, consideration mist be given co not only Minor's age and
the nature of the injuries inflicted, but also to Minors size. However, the
record does not contain any evidence concerning Minor’s size. Nevertheless,
in light of Minor’s mininal injuries, including evidence of no bruising, po
swelling, nor the seed for medical attention, we do not believe that the lack
of evidence relating 20 Minor’s size is fatal to the analysis. In fact, as
Giscussed above, minor was older than the minors involved in Deleon and
Matavale who had suffered more severe injuries than Minor in this case.
Thdeed, in thoge cases, the stature of each of the minore at the time of the
relevant incident was also unknown
-28-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Ronan caused bruising, swelling, or required medical attention
Consequently, Roman's discipline was not so excessive that it
‘severed any relationship between the use of force and the
welfare of [Minor] which might be considered “reasonable. ’*
Tanielu, 82 Hawai'i at 361, 922 P.2d at 994. The discipline used
by Roman was reasonably proportionate to Minor’s misconduct,
ise., his defiant attitude and demeanor, and the discipline was
necessary to punish Minor's misconduct. Therefore, we believe
that, in light of the circumstances in this case, including the
family court's expressed findings, the prosecution failed to
@isprove Roman’s parental discipline defense beyond a reasonable
doubt. Accordingly, we hold that a reasonable possibility exists
that the family court's failure to apply the parental discipline
defense might have contributed to Roman's conviction such that
the error cannot be said to be harmless. see Gano, 92 Hawai'i at
176, 988 P.24 at 1168. Consequently, the ICA's harmless error
holding cannot stand."
5 Ag noted gupza in note 6, Roman also contends that the ICA erred in
concluding that the family court's exclusion of evidence relating to Roman's
pricr non-physical attempts to address Minor’s prior incidents of misconduct
Mas harmless Beyond a reasonable doubt. owever, Roman's contention need aot
be aciressed inasmuch ag the above discussion rendars the contention moot.
-29-
*** FORPUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
IV. ConcLUSTON
Based on the foregoing, we vacate the ICA's February
11, 2008 judgment and reverse the family court's December 26,
2003 judgment.
Henry P. ‘Ting, Deputy Public Fi
Defender (Deborah L.. Kin, on
Deputy Public Defender, on
the application), for
petitioner/defendant- Game Peis be +
appellant Alfred J. Roman
Mary Ann Hollocker, Deputy
Prosecuting Attorney, for
respondent /plaintiff~
appellee State of Hawai'i
CONCURRENCE BY NAKAYAMA AND ACOBA, Jd.
We concur in the result only.
Neste Octane
| mann
=
| b58b10bb4c8ae239062be4fb4615e5d9ed3bb0542b9dafb8c563e9d002f5ad4b | 2008-09-11T00:00:00Z |
6e23597a-eeed-4462-9a39-5ff2f2339a3e | Crawford v. Kauai Medical Clinic | null | null | hawaii | Hawaii Supreme Court |
No, 27367
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
Petitioner
MARY CRANFORD, Plaintiff-Appellant
KAUAI MEDICAL CLINIC; DONNA S. CHENG,
MANGUESH G. VELINGKER, M.D., Defendants~
M.D.z BAY CLINIC, INC.; and
sppellees-Respondents.
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(cIVv. No. 02-1-0119)
Levinson, J., for the court’)
upon consideration of the application for writ of
certiorari filed on July 29, 2008 by the plaintiff-appellant-
petitioner Mary Crawford, the application is hereby rejected.
Honolulu, Hawai'i, September 2, 2008.
FOR THE COURT:
DATED:
Timothy I. MacMaster,
for the plaintiff-appellant-petitioner
Mary Crawford, on the application
Thomas E. Cook,
Edquon Lee, and
Steven ¥. Otaguro,
for the defendant ~appellee-respondent
Bay Clinic, Inc., on the opposition -
2- dS uur
George W. Playdon, Jr.,
Kelvin #. Kaneshiro, and
R. Aaron Creps,
for the defendant-appellee-respondent
Manguesh G. Velingker, M.D.,
on the opposition
SE-O1 i
Acoba, and Duffy, 39.
+ considered by: Moon, ¢.J., Levinson, Nakayama,
ow
| 6907b68cade6fa2d9ad59e32763ae2ca7743c713ba0f4170b28ee8b1924f39b3 | 2008-09-02T00:00:00Z |
9637ecf5-7ccf-4590-ac0c-bbab8cae7032 | Office of Disciplinary Counsel v. Yoshino | null | null | hawaii | Hawaii Supreme Court | No. 26781
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
ROY M. YOSHINO, Respondent.
In Re Application for Reinstatement of
ROY M. YOSHINO, Petitioner.
ORIGINAL PROCEEDING
ORDER OF REINSTATEMENT
(By: Moon, C.J., Levinson, Nakayama, and Acoba, JJ.,
and Circuit Judge Pollack, in place of Duffy, J., recused)
upon consideration of the record and the Disciplinary
Board’s Report and Reconmendation for the Reinstatement of Roy M.
Yoshino to the Practice of Law in this jurisdiction, it appears
that Petitioner Yoshino has proven, by clear and convincing
evidence, his rehabilitation, fitness to practice lew,
competence, compliance with all applicable disciplinary orders
and rules, and compliance with other requirements imposed by the
court, as required by Rule 2.17(d) of the Rules of the Supreme
Court of the State of Hawai'i, and should be reinstated to 1
practice of law. Therefore,
IT IS HERESY ORDERED that Petitioner Roy M. Yoshino’ s
Petition for Reinstatement is granted and Petitioner Yoshino is
reinstated to the practice of law in this jurisdiction.
IT IS FURTHER ORDERED that upon payment of all required
dues and registration fees, the Clerk shall restore Petitioner
aan
M. Yoshino to the roll of att:
eys eligible to pract
the State of Hawai!
DATED: Honolulu, Hawas'l, September 5, 2008.
| f3225618bcbd080fe18a8ccdc341e5b71aa9fb8eed6d7d3929916270b0fffe59 | 2008-09-05T00:00:00Z |
de2f4ba5-e2c6-41f8-b0e8-e4a3841f0736 | Bank of Hawaii v. Shinn | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
wo. 27832
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
BANK OF HAWAII, Plaintiff-Appellee-Respondent,
vs. a
On
MICHAEL L. SHINN, Defendant-Appellant~Petiticl@he
Oats
and
KAMACHIKA & LEZAK,,
BAYS, DEAVER, HIATT, sm
a Hawai'i partnership, Defendant-Appellees
3
&
»
2
2
s
and
DONALD T. EOVINO; KAHALA VENTURES,
a Hawais general partnership; FIRST HAWATIAN BANK;
DONALD H. WILSON, as Trustee of the Jerry T. Lynn Charitable
Remainder Trust; Bé? ENTERPRISES, a California corporation;
RICHARD WALLACE and PATRICIA DAVISON WALLACE,
as Trustees of the Muldoon & Associates Money Purchase Plan
‘and Trust; UNIVERSAL SECURITIES CO., LTD.,
a Japan Corporation; LOREN H. COOK; DARCY H. COOK:
J. ROGER ALLEN; CATHREINE G. ALLEN; JOHN DOES 1-507
JANE DOES 1-50; DOE PARTNERSHIPS 1-507 .
DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and
DOE GOVERNMENTAL UNITS 1-50, Defendants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 93-1151)
RART
Levinson, J., for the court")
Upon consideration of the application for writ of
certiorari filed on June 18, 2008 by the defendant-appellant~
petitioner Michael Shinn, the application is hereby accepted.
Moon, C.J.) Levinson, Nakayama, Acoba, and Duffy, JJ.
1 considered by:
IT IS ORDERED that oral arguments shall be conducted in
this case. The parties will be notified by the appellate clerk
regarding scheduling.
DATED: Honolulu, Hawai'i, July 24, 2008.
FOR THE COURT:
BD Phihrne |
a)
STEVEN H. LEVINSpN SE,
Associate Justicky, SEAL
roe wl
Gary Victor Dubin
and Long #. Vu,
for the defendant-appellant-petitioner
Michael L. Shinn,
on the application
Mark T. Shklov,
Michel A. Okazaki, and
Peter Van Name Esser,
for the plaintiff-appelli
Bank of Hawaii,
on the response
‘espondent
| 5521c3f0ecae817bb941b2c1c376c9c2f0179b1175deb0ee5c4d4a23345c6309 | 2008-07-24T00:00:00Z |
7c7d3ef2-5ff2-4b78-9683-c2aae9e735ea | Murakami v. Hifo | null | 29274 | hawaii | Hawaii Supreme Court | No. 29274
YL ony aoua
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
GLENN NOBUKI MURAKAMI and ANN SUE ISOBE, Petitiondils,
se
‘THE HONORABLE EDEN ELIZABETH HIFO, JUDGE OF THE
CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAMAT'I;
MICHAEL DAVID SAKATANI; CHRISTINE MARIE SAKATANI; and
808 DEVELOPMENT LLC, Respondents.
(CIVIL NO. 03-1-1712)
‘ORDER
(By: Moon, C.J., Levinson, Acoba, and Duffy, JJ.,
‘and Intermedizte Court of Appeals Judge Foley,
in place of Nakayama, J., recused)
Upon consideration of the petition for a writ of
mandamus filed by petitioners Glenn Nobuki Murakami and Ann Sue
Isobe and the papers in support, it appears that the confirmation
of the October 22, 2007 and June 5, 2008 arbitration awards will
be appealable upon entry of a judgment confirming the awards and
the denial of the motion to vacate the awards will be reviewable
on appeal from a judgment confirming the awards. See HRS
§§ 658A-28(a) (6) and 658A-23(d) (Supp. 2007). Petitioners have a
remedy by way of appeal and petitioners can seek a stay of the
judgment pending appeal pursuant to HRAP 8. Therefore,
petitioners are not entitled to mandamus relief. See Kena vs
Gaddis, 91 Hawai'i 200, 204-05, 982 P.24 334, 338-39 (1999) (A
writ of mandamus is an extraordinary remedy that will not issue
unless the petitioner demonstrates a clear and indisputable right
to relief and a lack of alternative means to redress adequately
the alleged wrong or obtain the requested action. Such writs are
amt
not intended to supersede the legal discretionary authority of
the lower courts, nor are they intended to serve as legal
es.). Accordingly,
remedies in lieu of normal appellate procedu
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, August 7, 2008.
ore
ike PoRoinee—
a
Garon. t. Badly
Chui R Fre,
| 66d1d4c8ce920260305e67f01be998781f6fbdfe8923f779cbf3794afb96381f | 2008-08-07T00:00:00Z |
09937cf4-c4b2-4994-8068-1fafec293e7a | Clark v. Arakakai. Dissenting Opinion by J. Acoba [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 10/07/2008 [pdf], 119 Haw. 135. Dissenting Opinion by J. Acoba [pdf]. | 118 Haw. 355 | null | hawaii | Hawaii Supreme Court |
{++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
---000!
EDWARD CLARK, OLLIE FULKS, and MATTHEW BINDER,
Plaintiffs-Appellants,
JAMES ARAKAKI, in his official capacity as a candidate,
CASEY JARMAN’, in her official capacity as County Clerk
and Chief Election Officer for the County of Hawai'i,
in his official capacity as Chief Election
KEVIN B. CRONIN?,
Officer for the State of Hawai'i, COUNTY OF HAWAI‘T,
JANE DOES 1-10, DOE CORPORATIONS,
JOHN DOES 1-10,
PARTNERSHIPS, GOVERNMENTAL UNITS of OTHER ENTITIES 1720,
Defendants-Appellees.
No, 26976
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 041-0225)
z
3
alms
AUGUST 29, 2008 EE
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.
‘AND ACOBA, J., DISSENTING el
QPINION OF THE COURT BY NAKAYAMA, J.
Plaintiffs-Appellants Edward Clark, Ollie Fulks
("Fulks"), and Matthew Binder (collectively, “Appellants"),
appeal from the third circuit court's (“circuit court’s”)
November 10, 2004 final judgment and order in favor of
role
8 pursuant to Hawai'i Rules of Appellate Procedure ("MRAP")
43(c) (2008), Casey Jarman has been substituted as 2 party to the instai
Appeal in place of Alan Konishi, in hie official capacity.
Pursuant to Hawai'i Rules of Appellate Procedure (“HRAP*)
as been substituted ass party to the instant
capacity
43(c) (2008), Kevan B. Cronin
appeal in place of Dwayne D. Yoshina, in his officia
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***+
Defendants-Appellees, James Arakaki (“Arakaki”), Casey Jarman,
Rex M. Quidilla, County of Hawai‘i, John Does 1-10, Jane Does 1-
10, Doe Corporations, Partnerships, Governmental Units or Other
Entities 1-20 (collectively, “Appellees”).? On appeal,
Appellants assert generally that “the [circuit court) conmitted
error both in granting Appellees’ summary judgment motions, and
in denying Appellants’ motion for partial summary judgment as to
Count 1.” For the x
sons that follow, we hold that the circuit
court (1) did not err when it determined that an amendment to
article III, section 3-2 of the Charter of the County of Hawai‘:
(“the Charter Amendment”) was valid notwithstanding its lack of
an effective date, and (2) erred when it determined that the
first term that counted toward the limit of four consecutive two-
year terms was postponed to the term that commenced as a result
of the 1998 election. Accordingly, we vacate the circuit court's
Novenber 10, 2004 final judgment and order, and remand with
instructions to enter summary judgment in favor of Appellants for
reasons consistent with this opinion.
1. BACKGROUND
A. Factual Background
Article ITI, section 3-2 of the Charter of the County
of Hawai'i provides:
>the Honorable Glenn §. Hara presided,
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‘There shell be a county couneti composed of nine members.
one menter shall be elected from cach of mine districts. The
teres of the council nenbers shall be two years and shail begin at
twelve of clock meridian on the first Monday of December after
their election. hall not
Hour consecutive tus year terms, Cendicates shail be elected an
Sccordance sith the election Laue of the state, inectar os
appiicabie.
Charter of the County of Hawai‘ (“CCH”) art. III, § 3-2 (2000)
(emphasis added) .
on January 25, 1995, the Hawai'i County Council adopted
ordinance 95-20, which proposed to place on the 1996 generat
election ballot an amendment to the Charter to be submitted to
the electorate of Hawai'i County. County of Hawai'i, Haw.,
Ordinance 95-20 (Jan. 25, 1995). The entire text of the Charter
Amendment states: “The terms of the council members shall not
exceed four consecutive two year terms.” Id, The purpose of the
Amendment was simply “to provide term limits for county council
members.” Ide
Pursuant to section § of Ordinance 95-20, Resolution
No. 298-96 was adopted by the Hawai'i County Council, which
required public notice of the proposed Charter Amendment. In the
“public Notice Of Proposed Amendments To the Hawaii County
Charter[,]” the “Digest” associated with the Charter Amendment
stated, as follows:
This proposal would limit the term of council menbers
40 that no Council member may be elected for more than four
Consecutive tuo year terms, If this proposal 1s passed, a
Sounesi member may only be elected for four strasght terme,
thus serving s total of eight years ina row. A council
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monber may be elected for sore then four terns ae long ae
the terma are not. consecutive
The public notices lacked any information on the effective date
of the Amendment.
On November 5, 1996, the voters of Hawai'i County voted
to approve the proposed Charter Amendment by a vote of 33,542 to
10,428. The results of the vote was certified by the county
clerk on November 25, 1996. The Charter Amendnent, as approved
and certified, did not contain an effective date.
on July 22, 1998, the Hawai'i County Council adopted
ordinance 98-78, which, among other things, affixed the effective
date for the Charter Amendment at “twelve of clock meridian on the
first Monday of December, 1996.” County of Hawai'i, Haw.,
ordinance 98-78, § 1 (July 22, 1998); However, the primary
purpose of this amendment was to amend Article III, section 3-2
by “chang[ing] the current Limit of four consecutive two-year
terms to two consecutive four-year terms.” Id. This ordinance
was not approved by the county electorate in the 1998 election.
Arakaki has continuously served on the Hawai'i County
Council since 1992. He filed nomination papers for the 1996
election on July 23, 1996, at which time there were no term
limits in effect. On November 5, 1996, Arakaki was elected to
serve a two-year term on the Hawai'i County Council commencing
the first Monday of December 1996, On November 25, 1996, the
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county clerk certified the results of Arakaki’s election.
Arakaki has served as an elected member of the county
council during the following consecutive two-year terms: 1992-
1994, 1994-1996, 1996-1998, 1998-2000, and 2000-2002. When the
complaint that initiated the instant case was filed on July 27,
2004, he was serving a two-year term that began in December 2002.
B. Procedural Background
on July 19, 2004, Arakaki filed nomination papers for
‘the Hawai'i County Council District Three seat for a two-year
‘term commencing December 6, 2004. Arakaki and Fulks were the
only candidates running for the District Three seat in the
September 18, 2004 nonpartisan county election.
on July 27, 2004, Fulks and two other voters, Edward
Clark and Matthew Binder, filed a complaint for declaratory
judgment and other relief in the circuit court challenging
Arakaki’s eligibility as a candidate in the 2004 election.
Specifically, Appellants sought a declaration that Arakaki’s
candidacy for re-election violated the term limits of the Charter
of the County of Hawai‘i, and for Arakaki’s name to be stricken
from the ballot. On August 16, 2004, Appellants filed 2 motion
for partial summary judgment.
on September 7, 2004, Arakaki filed a cross-claim
asserting that the Charter Amendment was void because of its lack
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of an effective dati
On Septenber 10, 2004, Arakaki filed a
motion for summary Judgment on his cross-claim.
on Septenber 18, 2004, Arakaki was elected to the
Hawai'i County Council seat for District Three. The election
results were as follows: 3,104 votes for Arakaki, 796 votes for
Fulks, and $60 blank votes. Zulke vs Konishi, No. 26834, slip
op. at 2 (Haw. October 8, 2004).
on Septenber 24, 2004, Fulks filed @ complaint in this
court challenging the results of the election. Id. This court
dismissed his complaint because, even if this court accepted all
of Fulks’ allegations as true, this court had no jurisdiction to
declare Fulks the winner of the 2004 election and order his term
of office to begin in accordance with Hawai'i Revised Statutes
(CHRS") § 12-42 (1993), inasmuch as Fulks was not unopposed.
+ MRS § 12-42 provides, An ite entirety:
(a) Any candidate running for any office in the state
of Hawaii in’s special election or special prinary election
‘eho. is the sole candidate for that office shall, after the
Dlose of filing of nomination papers, be deemed’ and declared
fo be duly and Legelly elected to the office for which che
person is a candidate, The term of office for a candidate
elected under this subsection shall begin respectively on
the day of the special election or on the day of the
innediately succeeding special general election.
(b) Any candidate running for any office in the state
of Hawaii n/a spectal genesal election who was only opposes
by a candidate of candidates running on the sane ticket in
the special primary election ana ie not opposed by spy
Candidate running on any other ticket, nonpartisan or
Otherwise, and if nominated at the special primary election
shell, after the epecisl primary, be dened ang declares to
be duly and legally electes to the office for which the
person is a candidate at the special primary election
6
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1d. This court also determined that it had no jurisdiction “in
this election contest to declare a provision in the Hawai'i
County Charter invalid and meaningless.” Ide
on November 10, 2004, the circuit court filed its final
judgment and order granting Arakaki’s motion for summary
judgment, and denying Appellants’ motion for partial summary
judgment. In its order, the circuit court determined that the
Charter Amendment was valid, and the first election to which it
applied was to candidates elected to serve a term commencing the
first Monday in December 1998. Because of the court's
determination, Arakaki’s 1996-1998 term would not count towards
the four consecutive term limit promulgated by the Charter
Amendment. The cizcuit court reasoned that application of the
charter Amendment “to the election of 1996 council members raises
issues of retroactive application.” Consequently, because the
“charter Amendment contained no express provision as to its
operative date[,]” it “shall be prospectively applied with the
operative election being the 1998 election.”
On November 30, 2004, Appellants timely filed their
notice of appeal.
regardless of the nunber of votes received. The term of
Office for 3 candisate elected under this subsection shall
begin on the day of the special general election.
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IT, STANDARD OF REVIEW
On appeal, the grant or denial of summary judgment is
reviewed de novo. See State ex, rel, Anzai v. City and County of
Honolulu, 99 Hawai'i 508, 514, $7 P.3d 433, 439 (2002); Bitney v,
Honolulu Police Dep't, 96 Hawai'i 243, 250, 30 P.3d 257, 264
(2002).
(S)unmary judgment is appropriate if the pleadings, depositions,
anauers to interrogatories, and sdmissions on file, together with
the affidavits, if any, show that there is no genuine issve es to
ny aaterial fact and that the moving party 12 entitled
Sudgnent as a matter of law. A fact ss material if proof of that
Zact would have the effect of establishing er refuting one of the
Steential elenents of # cause of action of defense asserted by the
partion, The evidence mast be viewed in the Light most. favorable
fo\the non-noving party. In other words, We sust view all of the
Svidence and inferences dravn therefrom in the light most
favorable to the party opposing the motion:
Kahale v. City and County of Honolulu, 104 Hawai'i 341, 344, 90
P.3d 233, 236 (2004) (citation omitted)
III, DISCUSSION
‘The instant case presents the novel issue of how to
properly construe the Charter Amendnent’s lack of an effective
date.* As discussed supra, the Charter Amendment was approved
+ Arakaki asserts that Appellants’ point of error does not comply
with lawai's Rules of Appellate Procedure ("HRAP") Rule 26(b) (4) {A-D) {2008}
Technically, there 12 2 defect. inasmuch ag Appellante do not include
Squatation of the finding or conclusion urges se error[.]” SRAP Role
26(b) (4) (C), This court has Consistently held that fesiure to comply with the
Feguirenent® of HRAP 26(b) (4) 1s alone sufficient to affimm the ciecuie
court’s judgment. Margen v. Planning Don't County of Kalai, 104 Hawas's 173
380, 86 P.3d 962, 989 (200¢), Nevertheless, this court has also “adhered to
the’ policy of affording litigants the opportunity to have their cases heard on
the merits, where possible.” dd, at 180-81, 66 .34 at 985-90 (citation and
quetation tarks omitted). Inasmuch as the instant appeal requests 2 review of
the circuit coure's dectoion to judicially impose an effective date for the
Charter Anendnent, which was approved by the county electorate in the 1996
8
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without an effective date by the county electorate in the 1996
election. Arakaki was elected as a Hawai'i County council member
in the same election, and has since served four consecutive two-
year terms between 1996 and 2004. Notwithstanding its silence,
if the Charter Amendment became effective with its electorate
approval in 1996, then by its terms, Arakaki would be proscribed
from seeking election in 2004 as a Hawai'i County council menber
See CCH art. 111, § 3-2.
Preliminarily, we note briefly that the question before
us is moot, inasmuch as the 2004 election has already occurred.
See Okada Trucking Co., Ltd. v. Sd. of Water Supply, 99 Hawai's
191, 196, $3 P.3d 798, 804 (2002) (“Inter Ieland’s appeal is moot
because the contract has already been completed.) .
IA] case is moot where the question to be determined
As abstract and does not rest on existing facts or rights.
Thos, the mootness doctrine 1s properly invoked unere
“evento”... have so affected the relations betueen the
parties that ine two conditions for justiciability relevant
fon appeal =~ adverse interest and effective renedy ~~ have
been! compront sea.
Doe vs Dos, 116 Hawai'i 323, 326, 172 P.2d 1067, 1070 (2007)
(citation omitted, brackets added, and ellipsis in original).
Because the 2004 election has already taken place, “[t}he
controversy between the parties has thus clearly ceased to be
election without an effective date, the resolution of this issue is of great
importance to the county and voting public of Hawaii, See ig. Accordingly,
because of the importance of the issue raised, we will addres the naries of
Appellants’ point of error aotuithstanding its vechnical vislatian of HEAP
Rule 28(D) (41 (C)
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‘definite and concrete’ and no longer ‘touches the legal
relations of parties having adverse legal interest.’” wong vw.
Bd. of Regents, Univ, of Hawaii, 62 Haw. 391, 396, 616 P.2d 201,
205 (1980) (citation omitted).
However, there is an exception to the mootness doctrine
“that occure in cases involving a legal issue which is capable of
repetition, yet evading review.” Life of the Land v. Burns, 59
Haw. 244, 251, $80 P.24 405, 409 (1978) (block format and
citation omitted); see Rees v. Carlisle, 113 Hawai'i 446, 456,
483 p.3d 1232, 1142 (2007).
“capable of repetition, yet evading review,”
2*case on the grounds of
octness where a challenged governmental action would evade
fll review because of the passage of tine would prevent any
Single plaintiff from remaining subject to the restriction
Conplained of for the period necessary to complete the
Yenouie-
fo of the Land, $9 Haw, at 251, 580 P.2d at 409-10 (citation
omitted).
on July 19, 2004, Arakaki filed his nomination papers
for the District Three seat of the Hawai'i County Council. on
July 27, 2004, Appellants filed their complaint in the circuit
court challenging Arakaki's eligibility as a candidate in the
2004 election. Arakaki was elected by majority vote on september
18, 2004, In light of the brief period of time between the
filing of Arakaki’s nomination papers and the election, it is
Likely that this action not only “would evade full review because
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of the passage of tine(,]” but also could “reasonably be expected
to recur” thereby preventing a plaintiff from seeking relief
under section 3-2 of the Hawai'i County Charter. See id. at 251-
52, $80 P24 at 410 (citation and quotation marke omitted).
Because this case falls under the “capable of repetition, yet
evading review" exception to the mootness doctrine, we will
consider the merits of this appeal.
A. The Charter Amendment Is Valid Notwithstanding Its Lack Of
An Effective Date.
Appellees reiterate their argument made in the circuit
court that the Charter Amendnent is void because of its lack of
an effective date. Appellees also contend that the Charter
Amendment is void because it is dissimilar from other state and
federal term Limit provisions.
1. The waw node!
uant to similar state an
term Limit provisions.
“upon the adoption of [a county’s] charter, it shall
become the organic law of the county superceding any existing
charter and all laws affecting the organization and government of
the county which are in conflict therewith.” Hawaii Gov't,
Employees’ Ass'n v. County of Mau‘, 59 Haw. 65, 79, 576 P.2d
1029, 1038 (1978) (quoting HRS § 50-10 (1993)) (quotation marks
omitted). This court observed that the delegates to the 1968
Constitutional Convention “intended that county charters acquire
1
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a stature which would resist legislative interference in sone
areas.” Id, at 75-76, 576 P.2d at 1036. These areas encompass
those charter provisions that “affect |] the organization and
government of the county... ." Ids at 78-79, 576 P.2d at 1038
(quoting HRS § 50-10) (quotation marks omitted).
As presented . , . the erea which the proposal places beyond
Tagislative control so limited to charter provisions as to the
executive, Legislative ond acninistrative structure
organization of the political subdivision. for example, the
Jegisiature could not change che composition of the legislativ
body of county. Hovever
ihe authority of che legislature to enact general lass aliccstine
Midteallocating powers and functions, This means that the
{tgisieture could transfer a function from the county to the state
Jevel even Af the result would be to eliminate » department of the
cSunty government provides for in its charter-
Id, at 75, $76 P.2d at 1036 (quoting Vol.1 Proceedings of the
Constitutional Convention of Hawaii of 1968, 229) (emphasis
added) «
‘The Charter Amendment, as adopted and approved in
article III, section 3-2 of the Hawai'i County Charter, provides
for term limits for Hawai'i County council members. Appellees
seen to contend that because term limits “allocat{e] and
reallocat{e] powers and functions” of the county, the Charter
Amendnent is required to be drafted in a similar manner as other
state and federal term limit provisions. However, term limits
for council menbers clearly affects the “structure and
organization” of the membership of the Hawai'i County council.
See id, at 84, 576 P.2d at 1040-41 ("The revised charter
12
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provision changing the number of menbers serving on the Maui
police commission is a matter of executive and adninistrative
structure and organization and is superior to conflicting
statute.” (Footnote omitted.)}. Therefore, inasmuch as it
appears that a term limit for council members was intended to be
one of those areas that is “beyond legislative control,” we hold
that the Hawai's County Council is not required to model the
Charter Amendment pursuant to other similar state and federal
term limit provisions. See id. at 75, 576 P.2d at 1036.
‘The Charter Amendment's lack of an effective date does
not render the Amendment void.
Provisions in a county charter that “affect(] the
organization and government of the county” are construed pursvant
to fundamental principles of construction relating to
constitutional provisions. See id. at 80-82, 576 P.2d at 1039.
As such, we must “give effect to the intention of the framers and
the people adopting” the provision in the county charter.
Ide
“(T]he general rule is that, if the words used in a
constitutional provision. . . are clear and unambiguous, they
are to be construed as written.” Hatland v, Lingle, 104 Hawai'i
128, 139, 85 P.3d 1079, 1090 (2004) (quotation marks and citation
omitted). In this regard, “the words are presumed to be used in
their natural sense unless the context furnishes some ground to
control, qualify, or enlarge them.” Id. (quotation marks and
3
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citation omitted). Moreover, “[t]he provisions of a constitution
which regulate its own amendnent are not merely directory, but
mandatory. [S]trict observance of every substantial requirement
is essential to the validity of the proposed amendment.” ids
(block format, emphasis, and citations omitted).
Arakaki asserts that the county charter requires an
amendment to contain an effective date in order to be valid.
Because of this requirement, Arakaki asserts that the Charter
Amendment’s lack of an effective date renders the Amendment
void.
HRS § 50-11 (1993) provides, in its entirety:
Every charter established under this chapter shall provide
neans by which the charter may be anended or revised. The
provisions for anendnent and fevieion mist provide for approval of
Hl anenaments and revisions by referendua to the electors of the
County. The anendnent or revision shall be considered ratified if
a’najority of the electors voting on the anendnent or revision
cast thesr ballots in favor of adoption
Article XV of the 1991 charter of the County of Hawai'i
provides for amendment or revision in the following manner:
+ Appellants assert that estoppel, quasi-estoppel, and waiver
preclude Appellees from claiming that the Charter Anenanent is void because,
famong other reasons, many years have passed since the Anendment was ratified.
However, one of the argunents nade by Appellants in their opening brief is
that the Charter Anendnent is “presumed valid, and Appellees cannot show
matter of law that the anendment was invalid beyond 2 reasonable doubt [-]""
Hawai'i Rules of Appellate Procedure (“HRAP") Rule 28(c) (2005) states that an
ancwering brief “shall be of like character ag that required for an opening
Brief except that no statement of points shall be required, and no cther
Section is required unless the sect is
Sontrovertes.” (Emphasis added.) accordingly, we Tail vo find any error
‘Appellees’ argument was merely nade to ‘controvert {)” Appellants’
he Charter Ancnament 19 "presumed valid.” S20 ia."
14
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Section 15-1. initiation of Amendments or Revisions
Amendments of revisions of this cherter may be initiates
oniy in the following manner:
Ta} By ordinance of the council adopted after three
readings on separate says snd pasced by the affirmative vote
Of twocthirds of the entire menbership.
Section 15-2. Elections te be Called. upon adoption
of an ordinance proposing anendnents or revisions of this
Charter... the council shall by resolution provide that
the proposed anendsents or rovisions be submitted to the
electors of the county for approval at the next general
Siection. Any such resolution shall provide for the
publication cf the full text of the proposed amenduente or
Fevisions in at least two daily newspapers of general
Eizculation in the county at least forty-five (49) days
Bricr co submission to the electors of che county.
Section 15-3. Mandatory Charter Reviews. The charter
shall be reviewed in 1989 ana every tenth year thereafter
Not later than the fifteenth day of January of che charter
review year, the mayor with the confireation of the council,
Shall appoint a charter commission composed of eleven
eabers to study and review the operation of the government
Of the county under this charter... » The council shail
Sppropriate funds to enable the comission to carry out its
Guties, including the niring of necessary state.
‘Me connission shall hold at Least one public
in each of the geographical areas. the commission may
Propose anendnente to the existing charter or a draft of a
few charter which shall be supeitted to the county clerk.
Open receipt of the amendnents or charter in the form as
proposed by the conmission, the county clerk shall provide
forthe sobmission of such amendnents cr charter to the
Glectors of the county at either a special election as
Seternines by the commission or at the first general
Siection following the charter review year. The connission
Shall prepare che language of the question to be submitted
fo the voters for each of the amendments it proposes.
‘The conmiseicn shall publish not less than forty-five
(45) days before any election, at least two daily newspapers
of general circulation within the county, a brief sigest of
the anendsents or charter and the purpose theres! and 2
notice to the electorate that copies of the anendnents of
Charter are available st the office of the county clerk.
Members of the commission ghall hold office until the
anendnents oF charter is ratified or rejected.
Ifthe majority of the voters voting upon a chaster
anendnent votes in favor of Tt ox anew charter, if a nee
‘hater ig proposed, the enenaeent or oon chareer shal
become effective at the tine fixed in the anenduent or
Sherer
ring
ccH art. XV (1991) (emphasis added); Arakaki asserts that the
above emphasized portion requires the inclusion of an effective
45
“OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
date for the Charter Amendment to be valid.
Standing by itself, it appears that the disputed
portion of section 15-3 clearly and unambiguously states that
when a majority of the voters vote in favor of an amendment, that
amendment “shall become effective at the time fixed in the
amendment . . . .” Logically, in order for the amendment to
becone effective “at the time fixed in the amendment {,)” the
amendment itself must contain the “time” that it becomes
effective, Hence, it can be inferred that section 15-3 mandates
that an amendment must contain the “time” that it becomes
effective. See Natland, 104 Hawai's at 139, 85 P.3d at 1090
("T]he settled rule is that in the construction of a
constitutional provision the words are presumed to be used in
their natural sense unless the context furnishes some ground to
control, qualify, or enlarge them.” (Emphasis added.)).
However, this mandate is subsumed under section 15-3,
which is entitled "Mandatory Charter Reviews.” According to this
section, “[t]he charter shall be reviewed in 1989 and every tenth
year thereafter.” CCH art. xv, § 18-3. The vote on the Charter
Amendment took place on Novenber 5, 1996, which is less than the
ten-year time frame contemplated by section 15-3. Moreover, the
record on appeal does not indicate that a “charter commission
composed of eleven members” was appointed by the “mayor with
16
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confirmation of the council[.1” Id, Accordingly, we cannot say
that the Charter Amendment was anended pursuant to section 15-3.
See HRS § 50-11.
In fact, it appears that the language of article xv
provides for two distinct procedures through which the charter of
the County of Hawai‘ may be amended. As discussed above, the
mandatory charter review required by section 15-3 “in 1989 and
every tenth year thereafter()" provides one procedure through
which the charter may be amended. The second procedure is
provided through sections 15-1 and 15-2.
Section 15-1 of article XV provides that an amendnent
may be initiated through an ordinance that is adopted by the
council “after three readings on separate days and passed by the
affirmative vote of two-thirds of the entire membership.” CCH
art. XV, § 1-1(a). Ordinance 95-20 was properly adopted by the
council in this manner, and Appellees do not dispute its
propriety.
Section 15-2 requires the council to submit a
resolution that provides (1) that the amendment will be submitted
to the electorate for their approval at the next election, and
(2) that the proposed amendment be published “in at least tvo
daily newspapers of general circulation in the county at least
forty-five (45) days prior to submission to the electors of the
vv
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county.” CCH art. XV, § 15-2. Appellees do not dispute the
propriety of ordinance 95-20's publication.
Comparing sections 15-1 and 15-2 to section 15-3
reveals that, unlike section 15-1's method of initiating an
amendment, section 15-3 requires only that an “eleven member”
charter commission, as created by section 15-3, “hold at least
one public hearing in each of the geographical areas” of the
County of Hawai'i, and “may propose amendments to the existing
charter . . . which shall be submitted to the county clerk.” ccH
art. Xv, § 15-3, Additionally, publication is separately
provided for in section 15-3 in a very similar manner as section
15-2. See id However, neither section 15-1 nor section 15-2
contains section 15-3's requirement that an anendment “shall
becone effective at the time fixed in the amendment...” Id.
Because sections 15-1 and 15-2 lack an effective date
requirement, and article XV clearly and unambiguously provides
for txo distinct procedures through which the charter may be
amended, we cannot say that the Charter Amendment's lack of an
effective date presents a “plain, clear, manifest, and
unmistakable” violation of article XV of the charter of the
county of Hawaii. See Taonae v. Lingle, 108 Hawai'i 245, 251,
118 P.3d 1188, 1194 (2005). Accordingly, we hold that the
circuit court did not err when it determined that the Charter
ae
¢+* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Amendment was valid notwithstanding its lack of an effective
date.”
B. The First Term Counted Towards the Limit Enumerated In the
Charter Amendment Is the Term That Commenced At Twelve
O'clock Meridian On the First Monday of December After the
1996 Election.
Appellants assert that the Charter Amendnent became
effective on the date of either the 1996 election (Novenber 5,
1996), or the certification of the 1996 election results
(Woverber 25, 1996). Under either scenario, Appellants assert
that the first tern counted toward the limit enumerated in the
Charter Amendment is the term that commences as a result of the
1996 election. Appellees, however, contend that the first term
counted toward the limit enumerated in the Charter Amendment is
the term that commences as a result of the 1998 election.
To reiterate, the entire text of the Charter Anendnent
provides that “(tJhe terms of the counci} menbers shail not
exceed four consecutive two year terms.” County of Hawai'i,
Haw., Ordinance 95-20. The Charter Amendment was approved by the
county electorate in the 1996 election. However, as discussed
supa, the text of the Charter Amendnent is silent as to which
terms count towards the limit of “four consecutive two year
We note that Appellants aesert that the Charter Anendnent is
Sait face However, Appellees do not contest che
ity of the Anendment. Moreover, this issue is not dispositive
1. accordingly, we decline to express an opinion aa to this
constitutio
te this apps
19
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
terms.” Moreover, legislative history or its equivalent that
could be used to clarify the intent of the framers of the Charter
Amendment is also silent on this issue. Consequently, a puzzling
anomaly appears within the language of article XV of the county
charter, insofar as section 15-3 describes the mode of approval
of charter amendments while sections 15-1 and 15-2 are silent.
‘Thus, in order to clarify that for which there is only silence,
we will resort to HRS § S0-11.
HRS § 50-11 mandates that an amendment or revision to a
county charter “shall be considered ratified if a majority of the
electors voting on the amendment or revision cast their ballote
An favor of adoption.” Black’s Law Dictionary defines the vord
“ratification” as an “[aldoption or enactment, esp. where the act
is the last in a series of necessary steps or consents... . In
this sense, ratification” includes “a formal approval of a
Black's Law Dictionary 1289
(8th ed. 2004); see Druagan v. Anderson, 269 U.S. 36, 39 (1925)
("The moment that the Amendment was ratified it became effective
constitutional amendment . .
asa law.
After the day of the election, HRS § 11-156 (1993)
mandates that “[t]he chief election officer or county clerk shall
deliver certificates of election to the persons elected as
determined under section 11-155.” Additionally, “[tJhe chief
20
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
election officer or county clerk in county elections shall issue
certificates of results where a question has been voted upon.”
Id. In relevant part, HRS § 11-155 (1993) provides that,
(oln receipt of certified tabulations from the election
Officials concerned, the chief election officer or county
Elerk in. county elections
Eelaasge the election reaules after the expiration of the
tine for bringing an election contest The position
fon the question receiving the appropriate majority of the
Sores cast shell be reflected inva certificate of results
Sesued pursuant to section 11-256.
(Emphasis added.)
The result of the vote on the Charter Amendment was
certified by the county clerk on November 25, 1996, Consonant
with the foregoing, because the mandated certification is “the
last in a series of necessary steps or consents[,]” see Black's
Lau Dictionary 1289, the Charter Amendment was ratified on
November 25, 1996. See HRS § 50-11. Accordingly, the Charter
Amendment could theoretically be construed to apply to any one of
the following scenarios: (1) retroactively to include those
terms that preceded the Amendment's ratification; (2)
prospectively where the first term counted towards the limit is
the term that commenced at twelve o’clock meridian on the first
Monday of December after the 1996 election: or (3) prospectively,
as the circuit court determined, where the first tern counted
towards the limit is the term that would commence on the first
Monday in December after the 1998 election.
21
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
This court has acknowledged that “[nJo law has any
retrospective operation, unless otherwise expressed or obviously
intended.” Graham Constr. Supply, Inc, v. Schrader Constra,
Anse, 63 Haw. 540, 546, 632 F.2d 648, 653 (1961) (quoting HRS §
1-3 (1993)) (quotation marks omitted). Based on the plain
Language of the Charter Amendment and its lack of legislative
history on this issue, we cannot say that there is “an expression
or obvious intendment” that the Charter Amendment was intended to
have “any retrospective operation.” See ids Accordingly, we
decline to apply the Charter Amendment retroactively to include
those terms that preceded the Anendnent’s ratification towards
© terms.”
the limit of “four consecutive tuo y
Tt has been said that “[ujniess otherwise provided by
law, amendments of constitutional charters take effect from the
date of their approval by the people.” 2A Eugene McQuillin, ‘The
ax of Municipal Corporations § 9:30 (3d ed. 2006). similarly,
this court has held that “[ajn Act of the legislature becomes a
law upon its approval by the governor.” In re Marques, 37 Haw.
260, 268 (Hawai'i Terr, 1945) (footnote omitted). As such,
iwlhexe an Act of the Legislature contains certain
provisions that are postponed co take effect at a future
Gate ana there is no implication or expression therein that
the Act itself should be postponed, the Act itself takes
effect upon approval and the only sections postponed to take
effect are those where the postponement is expressed therein
OF is to be implied therefton.
Id. (footnote omitted).
22
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTEH
In this case, the Charter Amendnent fails to indicate
whether ite effective date or the first term to count towards the
Limit of “four consecutive two year terms” is to be postponed to
1998. See id, In Light of the Charter Amendment’s silence, we
hold that the Amendment becane effective on Novenber 25, 1996,
which is the day that the Amendment was “ratified” by a “majority
of the electors voting on the amendment . . . .” See HRS § 50-
11; see also HRS $$ 11-155 to -156. Consequently, we also hold
that the first term counted towards the limit of “four
consecutive two year terms” is the term that commenced “at twelve
o'clock meridian on the first Monday of Decenber after” the 1996
election. See CCH art. III, $ 3-2) Ine Marques, 37 Haw. at
268
‘The County of Hawai‘ relies on U.S. Term Limits, Inc.
ve Hill, 072 S.W.2d 349 (Ark. 1994), Moo vy. Superior Court, 83
cal. App. 4th 967, 100 Cal. Rptr. 2d 186 (Cal. Ct. App. 2000),
and Kurvak v. Adamcevk, 705 N.¥.S.2d 739, 265 A.D.2d 796 (App.
Div. 1999), in support of its assertion that the Charter
Amendnent’'s silence begets an ambiguity that must be resolved in
favor of Arakaki. lo and Kurvak, however, are inapposite.
In fgg, a new charter repealed the former charter and,
in repealing the former charter, omitted certain language from
the existing term limit provision. 93 Cal. App. 4th at 970-72,
23
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
100 Cal. Rptr. 2d at 158-60. The new charter was approved by the
voters in June 1999. Id, at 159, 100 Cal. Rptr. 2d at 159. The
California court was confronted with the issue of whether certain
terms that preceded the approval of the 1999 charter were to be
counted towards the two-term limit enumerated therein. Id. at
976, 100 cal. Aptr. 2d at 163, Similarly, in Kurvak, th
tiew
York court addressed the issue of whether the respondents were
proscribed from serving a third term when, during their iret
term in public office, the term limit provision was amended to a
maximum limit of two consecutive terms. 705 N.¥.S.2d at 739, 265
A.D.24 at 796,
As discussed above, however, we decline to apply the
Charter Amendment retroactively to include those terms that
preceded the Amendment's ratification towards the limit of “four
consecutive two year tems.” Therefore, these cases are
inapposite.
In HiLL, the Arkansas state constitution was amended to
establish a limitation on the nusber of terms that, inter alia,
state public officials could serve. 872 $.W.2d at 351. This
amendment was approved by the voters in the Novenber 3, 1992
general election, and by its terms, became effective on January
1, 1993, Id. Similar to the instant case, the issue before the
Arkansas court was which terms of service should be counted
24
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
toward the term limit enumerated in the amendment. Id, at 360-
61. Pursuant to the law of its jurisdiction, the court
ultimately held that “fo]nly periods of service commencing on or
after January 1, 1993, will be counted as a term for limitations
purposes under” the amendment. Id, at 361 (emphasis added).
Similar to Hi1L, the Charter Amendment was ratified by
the voters of Hawai'i County on November 25, 1996. Pursuant to
section 3-2 of the Hawai'i County Charter, “(t]he terms of the
council members shall . . . begin at twelve o'clock meridian on
the first Monday of December after their election.” As discussed
above, the Charter Amendment fails to indicate (1) whether those
terms of service that preceded the Anendment’s ratification are
to be counted toward the limit of “four consecutive two year
verms[,]" see Graham Constr. Supply, Inc., 63 Haw. at 546, 632
P.2d at 653, and (2) whether the first term counted towards the
limit is to be postponed to the term commencing as a result of
the 1998 election, see Marques, 37 Haw. at 268. ‘Therefore, the
first term counted towards the limit of “four consecutive two
year terms” is the term commencing “at twelve of clock meridian on
the first Monday of December after” the 1996 election. See CCH
art. IIT, § 3-2.
Finally, Arakaki contends that the Charter Amendment
cannot apply to the term that conmences as a result of the 1996
25
{++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
election because the Anendnent was not part of the “election laws
of the state(]” when Arakaki filed his nomination papers for the
council seat in 1996." Consequently, Arakaki asserts that
application of the Charter Anendnent’s term limit should be
postponed to the term commencing as a result of the 1998
election.
However, the issue in this case is not whether Arakaki,
in 1996, was nominated and elected in accordance with the laws of
the sta
Rather, the issue is whether, after being elected,
Arakaki’'s two-year term that commenced as a result of the 1996
election was the first term counted toward the limit enumerated
in the Charter Amendment.’ Inasmuch as we hold that the Charter
+ tn 1996, section 3-2 of the Hawai'i County Charter stated that
“{cJandidates' shail’ be nominates and elected in accordance with the election
laa of the state,”
"the dissent appears concerned that our holding will give the
Charter Amendment retrospective effect because it was not part of the election
laws Of the state when Arataki filed his nomination papers. Dissenting
opinion at s-11." However, aur halaing in'ehis case interpreting the language
of the Charter Amendment does not implicate the nomination process prior to
the 1596 ‘election or the 1996 election results. Further, if is undlapured
that Arakski was an elected nenber of the Hawai'i County Council at all vines
jant to this case, In fact, Arakaki, as a elected menber of the county
perticipated in ail three readings of the Charter Amenanent. Seq CCH
XV, § 15-1 (a) (hnendnents oF revisions of this charter may be initiated
in'the following manner: (a] By ordinance of the council adopted after
Feadings on separate days and pasted by the affireative vote of tuo
is of the entire menberahip."}- In the second and third resdings, Arakaki
against adopting the Anendnent apparently because he snstead favored &
init consisting of two foursyear terms, ‘therefore, it cannot be
disputed that Arskaki knew (1) of the Charter Anendeent’s existence, 12) that
it would be submitted to the county electorate for ita approval in the 1996
election, “and, (3) if approved by the county electorate and the results
certified by the county clerk, that st would be effective on the date of ite
26
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
Amendnent was effective when ratified on November 25, 1996, and
the language of the Anendnent fails to indicate that its
applicability should be postponed to 1998, gee Marques, 37 Haw.
at 268, Arakaki's two-year term that began “at twelve of clock
meridian on the first Monday of December after” the 1996 election
was the first term that counted toward the “four consecutive two
year tern” limit.
Iv. concLusron
Based upon the foregoing analysis, we vacate the
circuit court's Novenber 10, 2004 final judgment and order, and
remand with instructions to enter summary judgment in favor of
Appellants for reasons consistent with this opinion.
on the briefs:
Fred Paul Benco for
Plaintiffs~Appellants
Edward Clark, Ollie Fulks
and Matthew Binder Messer
Joseph K. Kanelamela and »
Katherine A. Garson, deputies este OTe Ones
Corporation Counsel, for
Defendants-Aappellees County of
Hawai'i and Casey Jarman, in Game. OuQiion,
her official capacity as County
Clerk and Chief Election Officer
Brian J. De Lima of Crudele 6
De Lima for Defendant-Appellee
James Y, Arakaki
20
| 344c925a7bfa58beb6d9f44e87ae314d698525b264bc2452be7f079a04fd91c6 | 2008-08-29T00:00:00Z |
7856fb1f-14e3-4fc7-9093-b9d17d7484e9 | Tablada v. Coward | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27161
IN THE SUPREME COURT OF THE STATE OF HANA’
gsi g00d
oad
VICTORIA TABLADA, Respondent /Plaintif£-AppelTi
Counterclain-Defendant
WILLIAM COWARD, Petitioner/Defendant-Appel:
Counterclaimant
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 04-1-0807 (EHH)
MING APPLI
OF CERTTORAR:
(By: Moon, C.d., for the court)
Petitioner William Coward’s application for writ of
certiorari, filed July 30, 2008, is hereby rejected.
DATED: Honolulu, Hawai'i, August 8, 2008.
FOR THE COURT
Le Justics
considered by: Moon, C.J., Levinson, Nekayana,
| 131f63f0a5bf0fb24b125069a894c2aec903633c415b12fb9f45ed2d03a30449 | 2008-08-08T00:00:00Z |
4cd149ab-a475-404b-abf1-05ea2ce8be20 | State v. Mooney | null | null | hawaii | Hawaii Supreme Court | Law LisRARY
Wo, 28352
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAT'T, Respondent /Plaintiff-Appellee
CLYDE BRUCE MOONEY, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CASE NO. 00503930M)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORAR.
(By: Acoba, J., for the court!)
The Application for Writ of Certiorari filed on
June 13, 2008 by Petitioner/Defendant-Appellant Clyde Bruce
Mooney is hereby rejected.
DATED: Honolulu, Hawai'i, July 23, 2008.
FOR THE COURT: é a’
4 SEAL |
‘Associate Justice
J
=
fiareison b. Kiehn, on
the application for
petivioner/defendant- gq
Sppellant.
=
zs 2
. 2
= o
3
g
» considered by: Moon, C.J-+ Levinson, Naka:
dutty, 32.
| f57a19b207e7dcb8509cda2828ae2e0e41f7bb6791b004e1aaf976c00c326623 | 2008-07-24T00:00:00Z |
a7a92d1b-3867-49be-86d9-5675e4cffd45 | In re: Marquez | null | null | hawaii | Hawaii Supreme Court | Wo. 29207
IN RE: AWILDA R. MARQUEZ, Petitioner. al é
ORIGINAL PROCEEDING
ORDER DENYING PETITION TO RESIGN AND SURRENDER LICENSE
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Petitioner Awilda R. Marquez'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 does not
comply with the requirements of Rule 1.10(c) (ii) of the Rules of
the Supreme Court of the State of Hawai'i (RSCH), to wit,
averment 3 of the petition does not provide Petitioner’ s current
Status and Exhibit C does not provide it, as required by RSCH
1.10(c) (4). The affidavit indicates Petitioner’s status as of
December 31, 2007, but does not indicate Petitioner's current
status. Therefore,
IT IS HEREBY ORDERED that the petition is denied. This
court will reconsider the Petition if, within 30 days after the
date of this order, Petitioner submits another affidavit from the
Executive Director of the Hawai'i State Bar Association attesting
to Petitioner Marquez's current status.
DATED: Honolulu, Hawai'i, August 12, 2008.
Giron
BemaRiennen—
Prcseese Go awleec aire
Boa V
Days Qe
os1s
| 274cd3d7af74075650c8bac62aab5113f014cdb95c6a2b52281bdc8f1d52a7c1 | 2008-08-12T00:00:00Z |
237a275a-6a42-49c9-a5bd-c6e1b15ce59f | Campbell v. Hawaii Community Correctional Center | null | null | hawaii | Hawaii Supreme Court | no. 29292
HAWAII COMMUNITY CORRECTIONAL CENTER, Respond
Iv THE SUPREME cour? oF THe stare oF samargl = &
DENNIS L. CAMPBELL, Petitioner, Sal a
vs. ois 2
o
ORIGINAL PROCEEDING
ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Dennis 1, Campbell’s July 21,
2008 papers to the supreme court, which is dé
ed a petition for
a writ of mandamus, it appears that petitioner fails to
demonstrate that he sought and was denied relief from the
director of public safety. Therefore, petitioner is not entitled
to mandamus relief. See in Re Disciplinary Bd, of iiawaii Suprene
Court, 91 Hawai'i 363, 368, 984 P.2d 688, 693 (1999) (Mandamus
relief is available to compel an official to perform a duty
allegedly owed to an individual only if the individual's claim is
clear and certain, the official’s duty is ministerial and so
plainly prescribed as to be free from doubt, and no other remedy
is available.). Accordingly,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall file petitioner's papers as a petition for a writ of
mandamus without payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
mandamus is denied without prejudice to petitioner seeking relief
from the director of public safety.
aad
IT IS FINALLY ORDERED that the petitioner’s request for
permission from this court to file a lawsuit against the State of
the Hawai'i is denied as unnecessary inasmuch as such permission
is not required by law.
DATED: Honolulu, Hawai'i, August 7, 2008.
TP tm
hla Ph ena
eeeette OT easeeiey QNEe
prow
fone. aie
| a7b57a0f08aec199900e401cb38033ff39d83b03bcc422eae829fc7322033a52 | 2008-08-07T00:00:00Z |
84d3ae46-db48-4386-a313-30d685657c05 | Liki v. First Fire and Casualty Insurance of Hawaii, Inc. | null | null | hawaii | Hawaii Supreme Court | Law uBRaF
No. 28076
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
LILIVAU LIKI, Respondent /Plaintiff-Appellant
FIRST FIRE & CASUALTY INSURANCE OF HAWAII, INC.;
and M. NAKAT
REPAIR SERVICE, LTD., Petitioners/Defendant
‘Appellees
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(cIv. NO, 05-1-1027)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Duffy, J., for the court”)
Petitioners/Defendants-Appellees First Fire & Casualty
Insurance of Hawaii, Inc. and M. Nakai Repair Service, Ltd.'s
application for a writ of certiorari, filed on June 13, 2008,
hereby rejected.
DATED: Honolulu, Hawai'i, July 16, 2008.
FOR THE COURT:
Cone €. Duflan +
Associate Justice
Michael N. Tanoue,
Steven J.7. Chow, and
Jeffrey 3. Masatsugu
for petitioners/defendants-
appellees on the application
ive L VION
az
vel
considered by: Moon, C.J., Levingon, Nakayama, Recba, and Duffy, 29.
| a9bf590989a13a3c9577a416dff4cca0a82a9132c527863bff9f972edaec7f60 | 2008-07-16T00:00:00Z |
f12a4365-a52c-4084-8b0d-a14a580d4255 | Emory v. Housing and Community Development Corporation of Hawaii | null | null | hawaii | Hawaii Supreme Court | no. 28693
22 WY C= TON Bee
HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAII
(*HepcH"), formally known as HAWAII HOUSING AUTHORITY (*HHA‘),
STATE OF HAWAII and LINDA LINGLE, in her official
capacity as Governor of the State of Hawaii,
Respondents /Defendants-Appel lee:
APPEAL FROM THE CIRCUIT COURT OF THE PIRST CIRCUIT
(CIV. NO. 0§-1-1723)
‘ORDER DENYING APPLICATION FOR TRANSFER
(By: Moon, C.J. for the court!)
Upon consideration of the application for transfer
filed by petitioner/plaintiff-appellant Jade Emory, the papers in
does
support, and the record, it appears that petitioner's ca
not meet the requirements for mandatory or discretionary transfer
set forth in HRS §§ 602-58(a) and (b) (Supp. 2007). Therefore,
IT 1S HEREBY ORDERED that the application for transfer
is denied.
DATED: Honolulu, Hawai'i, July 3, 2008.
FOR THE COURT:
fide sustice
* considered by! Moon, C.J, Levinson, Nakayama, Accba, and Duffy, 33
gat
| e4be315c5fa8a27cc3e132bd07b60055e5f1bce1f268489ade9e98777d2999e5 | 2008-07-03T00:00:00Z |
d8022945-1670-4558-b83e-b7e336c3198b | Tierney v. Department of Public Safety | null | null | hawaii | Hawaii Supreme Court |
29308 oS
No.
OF HAWAT'T
1 sn goog
IN THE SUPREME COURT OF THE STAT
Petitioner,
MICHAEL C. TIERNEY,
05:2 hy
DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAI'T and
THE HONORABLE TRUDY K.T. SENDA, JUDGE OF THE DISTRICT
COURT OF THE FIFTH CIRCUIT, STATE OF HAWAI'T, Respondents.
ORIGINAL PROCEEDING
‘ORDER
Nakayama, Acoba, and Duffy, JJ.)
(By: Moon, C.J., Levinson,
Upon consideration of the petition for a writ of habeas
corpus submitted by petitioner Michael C. Tierney, it appears
that habeas corpus relief is available to petitioner in the
circuit court and petitioner presents no special reason for
invoking the supreme court's original jurisdiction. see Qili ws.
Chang, 57 Haw. 511, 512, 557 P.2d 787, 788 (1976). Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall file the petition for a writ of habeas corpus without
payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
habeas corpus is denied without prejudice to seeking habeas
corpus relief in the circuit court.
DATED: Honolulu, Hawai'i, August 13, 2008.
MH Erreviar
Paes Coreen yore
Bm
Gm es ulti 9y
o2ns
| 3a986dc6b59ee420b3e3322070e0f61c3ef15887a9b22cf27d0f2cbe163013f0 | 2008-08-13T00:00:00Z |
0c89ab80-8a43-45d9-9d2b-0ee82d46a195 | Gillan v. Government Employees Insurance Company. Concurring Opinion by J. Acoba [pdf]. ICA Opinion, filed 04/17/2008 [pdf], 117 Haw. 465. S.Ct. Order Granting Application for Writ of Certiorari, filed 06/23/2008 [pdf], 118 Haw. 173 | 119 Haw. 109 | null | hawaii | Hawaii Supreme Court | 04 FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER +1
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
3
=== 000
Pe
3
MARGRET GILLAN and HOWARD KELLER,
Plaintiffs-Appellees-Petitioners, z
vs 35 8
3g
GOVERNMENT EMPLOYEES INSURANCE coMpaNy, °
Defendant-Appellant-Respondent,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE
PARTNERSHIPS 1-10; ROE NON-PROFIT CORPORATIONS 1-10; and ROE
GOVERNMENTAL ENTITIES 1-10, Defendants.
No. 28075
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO, 05-1-0650-04)
OCTOBER 29, 2008
MOON, C.J., LEVINSON, NAKAYAMA, JJ., CIRCUIT JUDGE LEE,
IN PLACE,
OF DUFFY, J., RECUSED; AND ACOBA, J.,
CONCURRING SEPARATELY
QPINION OF THE COURT BY LEVINSON, J.
We accepted the application for a writ of certiorari
filed by the plaintiffs-appellees-petitioners, a personal injury
protection (PIP) claimant, Margret Gillan, and her treating
physician, Howard Keller, M.D. (collectively, the Plaintiffs), on
June 23, 2008 to review the published opinion of the Intermediate
Court of Appeals (ICA) in Gillan v. Government Enplovees
Insurance Co., 117 Hawai'i 465, 477, 184 P.3d 780, 792 (App.
2008), which vacated the July 17, 2006 amended partial judgment
of the first circuit court, the Honorable Sabrina S. McKenna
aan
‘14 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER «
Presiding, in favor of the Plaintiffs and against the defendant-
appellee-respondent Government Employees insurance Company
(GEICO). The circuit court concluded that GEICO violated the
plain language of Hawai'i Revised Statutes (HRS)
§ 431:10C-308.5(b) (Supp. 2002),* because the insurer failed to
seek Gillan’s consent when it retained a doctor to conduct an
“independent medical examination” to determine whether her
treatment from Dr. Keller was appropriate, reasonable, and
necessarily incurred as a result of her automobile accident, see
RS § 431:10C-103.5(a) (Supp. 2002).? The ICA held to the
* snevalitS § 431:100-308.5, entitled “Limitation on charges,” provides in
jlevant part
|b) The charges and frequency of treatnent for services
specified in [HRS 6} 431:10C-103.S (a), except for emergenen
services provides within seventy-two hours following 2 motor
Behicle accident resulting in injury, shall not exceed the charges
and frequency of treatment perniasibie under che workers”
compensation supplenental necical tee schedule, charges for
independent medical examinations, ineluding record reviews,
Bhysical examinations, history taking, ang reports, te be
conducted by © licensed Hawaii provider unless the’ insured
consents to an out-of-state provider, shall not exces chazges
Permissible under the appropriate codes in the workers?
Compensation supplemental medical fae schedule.” ine workers!
fompensation supplemental medical fee schedule shell not spely to
independent medical examinations conductes by outsot-crate’
Brovicers if the charges for the examination are ressenasie. The
independent medical examiner shall be selected by nutosl saveencrt
between the insurer and claimant; provides chat 1f no aereseene ne
reached, the selection may be submitted to the connissscnen,
arbitration or circuit court. The independent medical sneciner
shall be of the sane specialty ar the provider whose treateene ie
being reviewed, uniess otherwise agreed by the inscres se
claimant.
The statute was subsequently amended in respects immaterial to the present
matter, See 2006 Haw. Sess. I, Act 198, §§°S and ¢ at eco-4s
* mani $ #31:10C-103.5, entitied “Personal injury benefits; defined:
Limits,” provided in relevant part: “(aj Personal’ injury protection
Benefits, with respect to any Sccidental hare, means ail speroeestte and
seascnable treatment and expenses necessarily incurfed are cesse af te
accidental harm and which are substantially Comparable ts the requicentets for
‘continued...
‘0+ FOR PUBLICATION IN WEST HAWAI'T REPORTS AND PACIFIC REPORTER +++
contrary on the basis that GEICO’s doctor did not, in fact,
perform an independent medical examination in light of the
statute’s “clear” language, because, although he reviewed
Gillan’s medical records, he did not actually examine her,
physically or otherwise. See Gillan, 117 Hawai'i at 475-77, 164
F.3d at 790-92. The Plaintiffs argue that the ICA erred in that
regard.
Although we depart from the ICA’s textual analysis of
HRS § 431:10C-308(b), we ultimately arrive at the same conclusion
that an actual examination, physical or otherwise, is an
essential component of an “independent medical examination”
within the meaning of the statute. Thus, the record review
Performed by the physician retained by GEICO did not constitute
an independent medical examination, and, as such, GEICO did not
violate the statute when it declined to seek Gillan’s consent
before hiring the doctor. We affirm the May 7, 2008 judgment of
the ICA accordingly.
1. BACKGROUND
On December 1, 2002, Gillan was riding in the
Passenger seat of a Nissan truck owned and operated by her
boyfriend, Frank Rainey, when the truck was struck from behind by
another vehicle, which caused her to suffer injuries that
required medical attention. The truck was covered by an
*1. continued)
Prepaid heaith care pions . . . ." ‘the statute was subsequently amended in
Fespects innaterial to the present aster. See 2004 Haw, Sess 1 Mace Set
S51 and (at 285-86
*** FOR PUBLICATION I WEST’ § HAWAX'T REFORTS AND PACIFIC REPORTER +++
automobile insurance policy issued by GEICO that was in full
force and effect at the time of the collision. GEICO does not
Gispute that, 3s 4 passenger of the insured motor vehicle at the
time of the collision, Gillan was and is entitled to PIP
jnsurance coverage and benefits under Rainey’s insurance policy
and HRS § 431:10C-303(a) (Supp. 2002). In fact, GEICO initially
wrote Gillan a letter notifying her that she was entitled to PIP
benefits. GEICO also transmitted a PIP application forn, which
she completed and returned to GEICO. Gillan received medical
treatment from various health care providers, including Dr.
Keller, through Septenber 2003, Bills for the treatment were
submitted to GEICO for payment under the PIP benefits provided by
the insurance policy and as required under Hawaii's no-fault lew,
tn deciding whether to deny a PIP claim, GEICO’s in-
house staff, which is comprised of bill reviewers, adjusters, and
nursing personnel, routinely perform record reviews, including
evaluations of the clainant’s medical treatment records. Through
these reviews, GEICO assesses whether the benefit clained has
actually been prescribed by a physician, whether the allowed
nunber of visits has been exceeded, whether the statute of
Limitations has lapsed, whether workers’ compensation provides
primary coverage, as well as whether the claimant has presented
reasonable proof of the claim for benefits. In sone cases, GEICO
ene rstitS.5 $31;10C-303, entstled “Right to personal injury protection
Dengfite, provides in relevant part: *1a) “Tf the acclacke’ssueias
angidentsi harm occurs in this state, every person insured under this article,
SE Rath person's survivors, suffering loss from accidental hata arising acd
Sf the, greration, maintenance, or use of @ motor vehicle, hae a riot ed
Personal injury protection berefite.=
8+ FOR PUBLICATION I WEST'S HAWAL'T REFORTS 24D PACIFIC REPORTER
may request that a physician review records without examining the
claimant to determine whether, from the physician's perspective,
the claim is for treatment that was appropriate, reasonable, and
necessarily incurred as a result of accidental harm sustained in
4 motor vehicle accident.
GEICO followed that procedure in response to certain
claims Gillan made for PIP benefits. GEICO retained Bruce
Hector, M.D., who was a physician licensed by the State of
Hawai'i, a fellow of the Anerican Back Society, and a certified
independent medical evaluator. The doctor never saw or exanined
Gillan or consulted with her health care providers, but merely
reviewed her medical records to determine whether she required
medical treatment and care as @ result of the injuries she
sustained in the December 15, 2002 collision. In his report
dated December 8, 2003, Dr. Hector opined that Gillan did not
require medical care and treatment as a result of the collision
once she had completed her first six physical therapy sessions.
Relying on Dr. Hector’s report, GEICO sent Gillan various denial
of claim forms, the first of which was dated March 11, 2004.
GEICO maintained that, pursuant to HRS § 431:10C-103.5(a), Gillan
was not entitled to benefits for two of her visits with Dr
Keller and for magnetic resonance imaging services, because those
services were not appropriate, reasonable, or necessary. GEICO
also advised Gillan that, if she wished to contest its denial,
she could bring an action in court,
‘4% FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER
B. Circuit Court proceedings
The Plaintiffs filed a complaint against GEICO in
circuit court on April 15, 2005, alleging that GEICO had hired an
independent medical examiner, Dr. Hector, without first seeking
Gillan’s consent, in violation of HRS § 431:10C-308.5. On
Septenber 8, 2005, they moved for partial summary judgment on
this claim, arguing, among other things, that, because GEICO had
violated the statute, the circuit court should rule that GEICO’s
denials of Gillan's claims for benefits and Dr. Keller’s bills
were improper, null, and void. The Plaintiffs observed that,
under the statute, an insurer must seek to obtain a PIP
claimant’s agreement in selecting an “independent medical
examiner.” Relying on a circuit court ruling by the Honorable
Bert I. Ayabe in Sadoka v. AIG Hayaii, Civ. No. 04-1-0436-03
(Maw, Cir. Ct. July 25, 2005), the Plaintiffs asserted that or.
Hector was an independent medical examiner under the plain
language of HRS § 431:10C-308.5(b), because he performed a record
review and because a record review is part of an independent
medical examination. The Plaintiffs also cited the legislative
history of HRS § 431:10C-308.5 to support their interpretation of
the statute, Finally, they made the preemptive charge that,
although the United States District Court for the District of
Hawaii and the Insurance Commissioner of the State of Hawai'i had
reached the opposite conclusion in Engle v. Liberty Mutual Fire
Insurance Co., 402 F. Supp. 2d 1157 (D, Haw. 2005), and Weigel v,
Liberty Mutual Fire Insurance Co,, ATX-2002-134-P (Hawai'i
Insurance Commissioner's Final Order Mar. 31, 2005), available at
+ FOR PUBLICATION IN| WEST! HAWA'T REPORTS AND PACIFIC REPORTER +4
hetp: //hawaii. gov/deca/areas /oah/oah_decisions/INS/no-fault /AT-
2002-134-F Weigel v Liberty.pdf (last visited Oct. 17, 2008),
those decisions were unpersuasive, because their analyses were
inconsistent with the statutory language and legislative intent.
GEICO countered that Dr. Hector was not an independent medical
examiner, because he had not actually examined Gillan in
preparing his report. GEICO’s position was premised on the
statute's plain language, its legislative history, Engle, and
sige)
The circuit court heard the motion on October 11, 2005.
At the hearing, the circuit court expressed its hope “that both
the consumer lawyers, as well as the insurance industry, [would]
gol] back to the legislature because . . . clarification would be
helpful [with respect to the meaning of the term ‘independent
medical examination’}."* After hearing the parties’ arguments,
the circuit court took the matter under advisement and, on
october 20, 2005, the circuit court entered its order partially
granting the motion. The circuit court concluded that GEICO was
required by HRS § 431:10C-308.5 to seek Gillan’s consent before
hiring Dr. Hector and that GEICO had failed to meet that
obligation. Consequently, pursuant to TIG Insurance Co. v.
Kauhane, 101 Hawai'i 311, 67 P.34 610 (App. 2003), the circuit
court prohibited GEICO from relying on Dr. Hector’s report as a
basis for its denial of PIP benefits to Gillan for treatment
+ We endorse the circuit court's aspiration because, as explained infra in
section IITA, we believe that HRS § 431:10C-308.5(b) is ambiguous as to
Whether an “independent medical examination" requires sone form of actual
Guanination, paysical or cthersi,
‘s+ FOR PUBLICATION IN MEST’S HAMA'T REPORTS AKD PACIFIC REPORTER *
rendered by Dr. Keller. Still, the circuit court denied the
Plaintiff's motion to the extent that it sought a ruling tl
GEICO’s denials were improper, null, and void, because the
Plaintiffs had failed to carry their burden of proof.
on November 21, 2005, GEICO filed a Hawai'i Rules of
Civil Procedure (HRCP) Rule 54(b) motion for certification,
seeking an order directing the entry of a final judgment in favor
of the Plaintiffs and against GEICO based upon the circuit
court's order partially granting the Plaintiff's motion for
partial summary judgment. The Plaintiffs joined GBICO’s motion
on November 22, 2005, and the circuit court granted the motion on
January 19, 2006. GBICO filed a notice of appeal on February 21,
2006. The circuit court entered its partial judgment on February
27, 2006, and GEICO filed an amended notice of appeal the next
day. This court dismissed GEICO’s appeal on May 25, 2006,
because the circuit court’s judgment did not contain the
requisite language for HRCP Rule 54(b) certification. The
circuit court entered an amended order granting GEICO’s motion
for certification on June 10, 2006 and an amended partial
Judgment on July 17, 2006. On August 2, 2006, GEICO filed a
second amended notice of appeal.
C. Appellate Proceedings
In its points of error on appeal, GEICO argued that the
circuit court had stretched HRS § 431:
(0c~308.5(b) beyond its
plain meaning by concluding that the statute applied whenever an
insurer sought any expert medical opinion to inform a decision as
to whether to make a PIP payment. GEICO also asserted that the
‘44 FOR PUBLICATION IN WEST’ § HAMAZ'T REPORTS AND PACIFIC REPORTER +++
circuit court erred in ruling that GEICO had violated HRS
§ 431:10C-308.5(b) by obtaining and relying upon a record review
as a part of its PIP clain review and payment decision without
agreement from Gillan regarding the selection of the reviewing
doctor. Finally, GEICO maintained that the circuit court erred
in ruling that GEICO was prohibited at trial from relying on Dr.
Hector's report as a basis for its denial of PIP benefits to
Gillan for treatment rendered by Dr. Keller. Amicus briefs were
filed in support of GEICO’s position by the insurance
commissioner and by Hawaii Insurers Council.
Adopting the federal district court’s reasoning in
Engle, the ICA concluded that GEICO did not violate HRS
§ 431:10C-308.5(b), because the statute's “clear” language and
legislative history did not require that GEICO seek Gillan’s
consent before retaining Dr. Hector to perform a record review.
Gillan, 117 Hawai's at 474-77, 184 P.3d 789-92. As such, the ICA
vacated the circuit court’s amended partial judgment. id.
at 477, 184 P,3d at 792. The ICA entered its judgment on appeal
on May 7, 2008, and the Plaintiffs filed their timely application
for a writ of certiorari on May 15, 2008. See Hawai'i Rules of
Appellate Procedure Rule 40.1(a). We accepted the application on
June 23, 2008 and heard oral argument on August 21, 2008
‘44% FOR PUBLICATION IN MEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER
TT, STANDARDS OF REVIEW
A. Motion For Summary Judament
This court reviews the circuit court's grant of summary
judgment de novo. Price v. AIG Hawai’ 107 Hawai‘ 106,
120, 121 F.3d 1, 5 (2005). Summary 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 a judgment as a matter of law.”
HRCP Rule 56(c).
B. Statutory Interpretation
This court generally reviews questions of statutory
‘lele v, Office of Info, Practices, 116
Hawai'i 337, 344, 173 P.3d 484, 491 (2007), but, “[iJn the case
of . . . ambiguous statutory language, the applicable standard of
interpretation de now
review regarding an agency's interpretation of its own governing
statute requires this court to defer to the agency's expertise
and to follow the agency's construction of the statute unless
that construction is palpably erroneous,” Vail v. employees’ Ret
Svea, 75 Haw. 42, 66, 856 F.2d 1227, 1240 (1993).
III, piscussron
‘The Plaintiffs’ basic argument is that the ICA erred in
concluding that GEICO did not violate HRS § 431:10C-308.5(b) in
denying her claim for PIP benefits. PIP benefits, “with respect
to any accidental harm,” are “all appropriate and reasonable
treatment and expenses necessarily incurred as a result of the
accidental harm and which are substantially comparable to the
10
requirenents for prepaid health care plans.” HRS
§ 431:10C-103.5(a). In deciding whether to deny a PIP clain, see
HRS § 431:10C-304(3) (B) (Supp. 2002),* HRS § 431:10C-308.5 (b)
permits an insurer to utilize an “independent medical
examination” in order to review the claimant's treatment from his
health care provider. If an insurer elects to employ an
independent medical examiner to assess whether the claimant's
treatment is appropriate, reasonable, and necessarily incurred as
a result of the accidental harm, see HRS § 431:10C-103.5(a), HRS
§ 431:10c-308.5(b) requires that the examiner “be selected by
mutual agreement between the insurer and claimant,” but also
provides the exception that, “if no agreement is reached, the
selection may be submitted to the commissioner, arbitration or
circuit court.”
In this case, GEICO did not seek Gillan’s consent in
hiring Dr. Hector to assess the appropriateness of her medical
treatment. Dr. Hector looked only to her medical records: he did
not actually examine hex, physically or otherwise. By its tems,
HRS § 431:10C-308.5(b) contemplates that certain activities nay
be associated with an independent medical examination, including
“record reviews, physical examinations, history taking, and
reports.” The Plaintiffs maintain that, in light of the
statute's plain language, Dr. Hector's record review was itself
an independent medical examination and that GEICO therefore
breached its obligation under the statute to seek Gillan’s
+ yas § 431:200-30¢(3) (B) sets forth sone of the procedures that insurers
must follow in denying PIP clains
u
{+ FOR PUBLICATION IN MEST’ HAWAI'I REFORTS AND PACIFIC REPORTER +++
consent. On the other hand, GEICO, supported by the insurance
conmissicner and the Hawai'i Insurers Council, asserts that it
had no statutory duty to seek Gillan’s agreement in selecting br.
Hector, because, without an actual “examination,” the doctor's
review of her records did not rise to the level of an
“independent medical examination.” The fundamental question is
therefore whether, absent an actual examination, physical or
otherwise, Dr. Hector’s record review constitutes an “independent
medical examination” within the meaning of HRS
§ 431:10¢-308.5(5).
a *
It Appears In HB: :10C-308.5ib). Is
The Claimant or
“Examination.”
In interpreting the statute, this court's “‘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."" Colony surf, Ltd. vs
Dir. of the Dep't of Planning & Permitting, 116 Hawai'i 510, 516,
174 P.3d 348, 385 (2007) (quoting Gray v. Admin, Dir. of the
Court, 84 Hawai's 138, 148, 931 P.2d 580, 590 (1997)). The
Plaintiffs argue that two of the statute's provisions, the first
of which employs the word “reviewed” and the second of which
contains the term “records,” demonstrate that the legislature
intended for an “independent medical examination” to encompass
the situation in which only the claimant's medical records are
reviewed, but the claimant is not physically examined. The first
provision specifically states that “(t]he independent medical
12
‘+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***
examiner shall be of the same specialty as the provider whose
treatment is being reviewed.” HRS § 431:10C-308.5(b). Aside
from mandating that the examiner have the same specialty as the
treating health care provider, the sentence demonstrates that the
core function of the examination is to evaluate the propriety of
the claimant's treatment by his health care provider. See id
While the sentence sheds light on the purpose of an independent
medical examination, it does not speak to the process by which
the examination takes places it does not address whether an
actual “examination” is the essence of that process. The second
provision that the Plaintiffs cite directs that “[a]l1 records
and charges relating to an independent medical examination shall
be made available to the claimant upon request.” Id. This
provision serves to illustrate that the review of records may be
related to an independent medical examination. See id, Still,
the question is not whether a record review is merely “xelatied)
to an independent medical examination,” see id. (emphasis added),
but, rather, whether a record review is itself an independent
medical examination. Thus, the second provision, Like the first,
does not answer the question at hand because it does not imply,
much less direct, that an actual examination is or is not an
essential component in an independent medical examination. In
summary, although the language of HRS § 431:10C-308.5(b) plainly
establishes that an independent medical examination may involve
both a record review and a physical examination, the Plaintiffs
have not cited, and we have not found, a provision in the
statute, or in any other section of the motor vehicle insurance
13
+44 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *#+
law, HRS ch. 431:10C, that squarely addresses whether an actual
examination is an essential element of an “independent medical
examination.”
Because the term is not statutorily defined, this court
“tmay resort to legal or other well accepted dictionaries as one
Way to determine [its] ordinary meaning.’" Leslie v. Bd, of
Appeals of the County of Hawai'i, 109 Hawai'i 384, 393, 126 P.3¢
1071, 1060 (2006) (quoting Schefke v, Reliable Collection Agency,
Lida, 96 Hawai'i 408, 424, 32 P.34 52, 68 (2001)). As the
Plaintiffs point out, Black's Law Dictionary broadly defines
“independent medical examination” as “[a]n assessment of a
person's physical condition and health that is made by an
impartial healthcare professional, usu(ally] a physician.”
Black's Law Dictionary 785 (8th ed. 2004). A person's physical
condition and health could certainly be assessed simply by
reviewing his medical records and without examining him
physically. Thus, as defined by Black's Law Dictionary, or.
Hector’s review of Gillan’s records could fairly be characterized
as an independent medical examination.
On the other hand, certain medical dictionaries suggest
that an “examination” involves some form of actual in-person
contact. Taber's Cvclopedic Medical Dictionary defines an
“examination” as “(t]he act or process of inspecting the body and
its systems to determine the presence or absence of disease.”
Taber's Cyclopedic Medical Dictionary 662 (18th ed. 1997). The
dictionary further states that the word is generally prefaced by
terms indicating the type of examination, such as “physical,
a4
+ FOR PUBLICATION IN WES!
HAWAI'T REPORTS AND PACIFIC REPORTER +1
bimanual, digital, oral, rectal, obstetrical, roentgenological,
[or] cystoscopic.” Id, Dorland’s Iblustrated Medical Dictionary
similarly defines “examination” as “inspection, palpation,
ausculation, percussion, or other means of investigation,
especially for diagnosing disease, qualified according to the
methods employed, as physical examination, radiological
examination, diagnostic imaging examination, or cystoscopic
Dorland’s Illustrated Medical Dictionary 651 (30th
ed. 2003); accord Sloane-Dorland Annotated Medical-Leaal
Dictionary 270 (1987); EDR Medical Dictionary 628 (2d ed. 2000).
‘Thus, these medical dictionaries counsel that an actual
examination.
“examination” is an indispensable part of a medical examination.
In addition to dictionaries, this court may also
consult legal treatises to ascertain the meaning of a term that
is not defined by statute. See Allstate Ins, Co. v. Kaneshiro,
93 Hawai'i 210, 215, 998 P.2 490, 495 (2000) (relying on Couch
on_Insurance in defining the term “renewal policy” in HRS
§ 431:
0c-301 (1993), because the term was not defined in
Hawaii's motor vehicle insurance law, HRS ch. 431:10C). Like the
medical dictionaries, Couch on Insurance indicates that an
independent medical examination necessarily involves an actual
examination. The treatise states that, “[i]n the process of
investigating a personal injury or disability claim... , an
insurer is entitled to obtain medical records pursuant to the
claimant's authorization and to request a physical examination of
the claimant, conmonly known as an independent medical
examination or IME." 13 Couch on Insurance § 196:53, at 196-60
as
‘06 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER +++
(3d ed. 1995); see alse id, § 196:67, at 196-72 (similarly
equating an independent medical examination with @ physical
examination). The treatise also teaches that, because the scope
of the independent medical examination is guided by the medical
condition claimed by the insured, the insurer may be required to
conduct @ medical record review in advance of seeking an
independent medical examination. Id. § 196:67, at 196-72.
Hence, Couch on Insurance s
medical examination necessarily involves an actual examination of
ms to suggest that an independent
the claimant, physically or otherwise, and that the “examination”
As distinct from a mere record review, which precedes the
examination. See id. $$ 196:53, 196:67, at 196-60, 196-72.
Another textual guide that this court has utilized in
interpreting statutory terms is common usage. See Bishop Trust
Co. y. Burns, 46 Haw, 375, 399, 381 P.2d 687, 701 (1963) (“Courts
will presume that the words in a statute were used to express
their meaning in common usage.”); see also Sherman v. Sawyer, 63
Haw. 55, 59, 621 P.2d 346, 349 (1980) (interpreting the statutory
phrase “exclusive jurisdiction” according to its “general and
common usage”). In reviewing the proceedings at trial in Nelson
vs University of Hawai'i, we explained that the defendants had
relied upon the testimony of “a psychiatrist who had conducted an
independent medical examination . . . of (the plaintiff] in March
1997 and had reviewed her medical history.” 97 Hawai'i 376, 383,
38 P.3d 95, 102 (2001). Our use of the conjunctive “and” implies
that we regarded an independent medical examination as being
distinct from a medical history review. See id. We later
16
‘10+ FOR PUBLICATION IN WEST’ S HAWAI'T REPORTS AND PACIFIC REPORTER +++
observed that the psychiatrist had conducted a two-hour interview
of the plaintiff. Id, at 386, 38 P.3d at
appears to have distinguished the independent medical examination
S. Thus, what
from the medical history review was that the former involved an
actual examination of the plaintiff, whereas the latter did not.
See id, at 383, 386, 38 P.3d at 102, 105. The manner in which we
employed the term “independent medical examination” in Nelson is
consistent with the notion that an actual examination of the
claimant is an essential aspect of an independent medical
examination.
Courts across the country appear to have a similar
understanding of the term. See Enale, 402 F. Supp. 2d at 1162
("courts routinely use the term ‘IME’ to describe procedures in
© Doss v
Manfredi, 40 P.3d 333, 334-38 (Kan. Ct. App. 2002) (explaining
which in-person examinations were conducted.”
that a doctor retained by an insurer to review the PIP claimant’s
chiropractic treatment “only reviewed the chiropractic records
relating to the treatment of (the claimant] without any INE");
Glover v. Jefferson Pilot Fin, Ins. Co., No. 4:06-cV323 GTB, 2007
U.S, Dist. LEXIS 12079, at ¥17, *28 (E.D. Ark. Feb. 21, 2007)
(observing that, in response to a claim for long-term disability
benefits, an insurer sent the claimant's file to a doctor who
“did not conduct an independent medical examination on the
«contrary to the impression expressed in the concurring opinion, we do
hot cite Engle for the proposition that RCP Rule 35 and Federal Rules of
Civil Procedure Rule 35 are in fact instructive in determining whether =
Fecord review alone constitutes an “independent medical examination” under HRS
$'e31:2"308+3., See concurring opinion at 19. We merely cite the Engle
Gecision as illustrative of how courts have generally employed the tern.
nv
+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER +++
o*Connedt
ys Unun Brovident, Civ. No. 04-3499, 2006 U.S. Dist. LEXIS 4826,
at *25-427, *42 (D.N.J. Feb. 3, 2006) (noting that, although a
[claimant],” but who instead “only reviewed records”!
disability insurer’s experts reviewed the claimant’s medical
records, the “experts did not examine the [claimant], and that
the insurer's “failure to conduct an independent medical
examination is not itself sufficient grounds to reverse a
determination”); United Founders Life Ing, Co. v, Carey, 363
S.W.24 236, 242 (Tex. 1962) (“A medical examination imports a
physical examination as distinguished from a medical history
Anvestigation.” (emphases in original).
Yet, at the same time, other courts have characterized
a doctor's evaluation as an independent medical examination, even
where the physician never physically examined the claimant. See
Nickel v. Unum Life Ins. Co. of Am, No. 06-10476-BC, 2008 U.S.
Dist. LEXTS 16797, at *26-*28 (E.0, Mich. Mar. 3, 2008)
(explaining that a disability insurers physician performed an
independent medical examination of the claimant even though the
doctor “never examined [the claimant] in person,” but, instead,
only “reviewed [the claimant's] records”); Johnson v. Park W
Shop, 446 5.W.26 182, 187-88 (Mo. Ct. App. 1963) (holding that
doctor who reviewed the workers’ compensation claimant's medical
records and prepared a report, but who did not physically examine
the claimant, was an “examining physician,” such that the report
was subject to a statute requiring disclosure of medical reports
prepared by examining physicians, because the only difference
between a physician who conducted a physical examination and the
18
FOR PUBLICATION IN WES?’
NAWAI'T REPORTS AND PACIFIC REPORTER +++
doctor who simply reviewed records was the claimant’s presence in
the doctor's office).
In light of these conflicting interpretations of the
term “independent medical examination,” we do not agree with the
ICA, the circuit court, the parties, or the
meaning of the term, as it appears in HRS § 431:10C-308.5(b), is
“plain” or “clear” with respect to the necessity of an actual
examination. See Gillan, 117 Hawai'i 477, 184 P.3d at 792.
“‘Wihen there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists. Put differently, a statute is
ambiguous if it is capable of being understood by reasonably
well-informed people in two or more different senses.’ Farmer
vs Administrative Dir. of the Court, 94 Hawai'i 232, 236, 11 P.3d
457, 461 (2000) (quoting Konno v, County of Hawai'i, 85 Hawai't
61, 71, 937 P.2d 397, 407 (1997)), From our perspective,
reasonable minds could differ as to whether an “independent
0c-308.5(b) requires
some form of actual examination, and, as such, we hold that the
term is ambiguous. See id.; see also Mehau v. Reed, 76 Hawai‘
101, 108-09, 869 P.2d 1320, 1327-28 (1994) (concluding that the
word “court” in HRS § 93E-11(c) (1985) was ambiguous because it
medical examination” pursuant to HRS § 431:
could be interpreted as meaning either “judge” or “jury”).
19
FOR PUBLICATION IN WEST’S HAWAI' REPORTS AKO PACIFIC REPORTER ++
. *
Hecause The Term “Independent Medical
Examination” In SRS ¢ 431:10C-306,5(b) Ts
re Interpretation iis
interpretation Is palpably Erroneous,
“In the case of . . . ambiguous statutory language, the
applicable standard of review regarding an agency’s
interpretation of its own governing statute requires this court
to defer to the agency’s expertise and to follow the agency’s
construction of the statute unless that construction is palpably
erroneous.” Vail, 75 Haw. at 66, 856 P.2d at 1240; see also
Morgan v. Planning Dep't, 104 Hawai'i 173, 180, 86 P.3d 982, 989
(2004). “Such deference ‘reflects a sensitivity to the proper
roles of the political and judicial branches,’ insofar as ‘the
resolution of ambiguity in a statutory text is often more a
question of policy than law.'” In re Water Use Permit
Applications, 94 Haw. 97, 145, 9 F.3d 409, 457 (2000) (quoting
Pauley v, BethEneray Mines, Inc., 501 U.S. 680, 696 (1991)). In
the present matter, the insurance commissioner correctly observes
that he was entrusted with enforcing the insurance code in
general, see HRS § 43
of denials of PIP claims in particular, gee HRS 55 43
and 431:10¢-212.
He reviewed one such claim in Weigel, wherein a medical
2+201(b), and with reviewing the propriety
12-102 (b)
provider asserted that an insurer’s denials were improperly based
upon medical records reviews performed by an independent medical
examiner who only reviewed the claimants’ medical records and who
was not selected by mutual agreement between the insurer and the
claimants, in contravention of HRS § 431:10C-308.5(b). ATX=2002-
20
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134-8, hearings officer's findings of fact, conclusions of law,
and recommended order (RO) at 2, 4-7. In the hearings officer's
recommendation to the commissioner, he concluded that, although
the statute did not define “independent medical examination,” the
term necessarily “includes a physical examination, which requires
doctor-patient interaction.” Jd, at 8. According to the
hearings officer, the statute requires that an insurer seek a
claimant’s consent in Light of the potentially invasive nature of
that physical interaction. Id, The insurance commissioner
adopted the hearings officer's reconmendation, id,
commissioner's final order (CFO) at 2, specifically ruling that
“the conditions placed on the . . . selection of = provider of an
(Independent [mJedical [e]xamination do{} not apply to 2 medical
records reviewer whose activities do not require a medical
providers’ license,” id. at 2n.1. According to the
commissioner, the insurer's “decision to employ a medical
professional to provide consultation in support of, or to perform
the duties typically undertaken by[,] adjusters and bill
reviewers does not subject the [insurer] to compliance with the
obligations associated with performing an [i]ndependent [medical
{e]xamination.” Id.
Because the insurance commissioner has been charged
with reviewing PIP benefit denials, see HRS $$ 431:2-102(b) and
431:10C-212, and because, in the course of reviewing such denials
in Weigel, he specifically ruled that a record review without @
physical examination did not qualify as “an independent medical
examination” within the meaning of HRS § 431:10C-308.5(b), sae
21
{Y7¢ FOR PUBLICATION IN MEST’ KAWA!'E REPORTS AND PACIFIC REPORTER +
RTK-2002-134-P, RO at 9, CFO at 2 n.1, we believe that his ruling
is entitled to deference, unless it is palpably erroneous. See
Vail, 75 Haw. at 65-66, 856 P.2¢ at 1239-40 (deferring to the
employees’ retirement systen’s interpretation of the term “part-
time employees” in HRS § 68-43, as evidenced by its arguments on
appeal and its implementation of the statute through an
administrative rule, because the statutory term was ambiguous) ;
Holi v. AIG Haw, Ins, Co., 113 Hawai'i 196, 205-06, 150 P.3d 845,
854-55 (App. 2007) (according deference to the insurance
commissioner’s interpretation of the word “relative,” apps
ring
in HRS § 431:10C-103, which was not defined by statute, because
the meaning of the word was less than clear and because the
commissioner had promulgated a rule defining the term for
Purposes of administering the Hawai'i motor vehicle insurance
daw, HRS ch. 431:
Haw. 425, 421, 424-26, 653 P.2d 420, 424, 426-27 (1982)
OC); Treloar v, Swinerton & Wi
(deferring to the department of labor and industrial relations’
construction of an ambiguous provision in HRS § 386-54, which the
department enunciated in an administrative ruling, because the
department was charged with carrying out the workers’
compensation law, HRS ch. 386).
c. Insurance Commissioner's Interpretation That
Of An “Independent Medical Examination” Und:
Eironaese ats Sib) a Nat palpably
‘The Plaintiffs essentially assert that, in light of the
statute's legislative history, the insurance commissioner's
understanding of the term “independent medical examination” in
22
FOR PUBLICATION 1M WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER +++
HRS § 431:10C-308.5(b) is palpably erroneous. An agency's
interpretation of a statute is palpably erroneous when it is
inconsistent with the legislative intent underlying the statute
Gf. Insloar, 65 Haw. at 425-26, 653 P.2d at 427 (holding that an
agency's interpretation of a workers’ compensation statute was
not palpably erroneous because it was consonant with the
Jegislative intent underlying the statute). In construing an
ambiguous statute, this court “‘may resort to extrinsic aids in
determining legislative intent,'” one of which is “*legislative
history." Hawaii Home infusion Assocs, v. Befitel, 114 Havai't
87, 91, 187 P.3d 526, 530 (2007) (quoting Courbat vs Dahana
Ranch, Inc., 111 Hawai'i 254, 261, 141 P.3d 427, 434 (2006);
Silva v, City ¢ County of Honolulu, 115 Hawai'i 1, 6, 165 P.3d
247, 252 (2007). Thus, in the present matter, because the term
“independent medical examination” as employed in HRS
§ 431:10C-308.5(b) is ambiguous, see supra section II1.A, this
court may consult the statute’s legislative history to ascertain
the meaning of the term. See Haw, Home Infusion Assecs., 114
Hawai'i at 91, 157 P.3d at 530.
‘The Plaintiffs begin their analysis with the
legislative history underlying the 1998 amendments to the
statute. Prior to those amendments, HRS § 431:10C-308.5(b)
provided in relevant part that “[eJharges for independent medical
examinations to be conducted by a licensed Hawaii provider,
unless the insured consents to an out-of-state provider, shall
hot exceed the charges permissible under the workers’
compensation schedules for consultation for a complex medical
23
"0" FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ©
Problem.” HRS § 431:10C-308.5(b) (Supp. 1997). The legislature
amended this provision by adding the following underscored
Languag
“Charges for independent medical examinations,
including record reviews, phy
and_teports, to be conducted by @ Iicensed Hawaii provider unless
the insured consents to an out-of-state provider, shall not
exceed the charges permissible under the workers’ compensation
Schedules for consultation for a complex medical problem.” 1998
Haw. Sess. L. Act 275, § 26 at 935 (emphasis in original)
(footnote omitted). The legislative history reflects that the
amendment was specifically “designed to eliminate abuses and
excessive charges associated with independent medical
examinations (INEs)” by “clarif(ying] that the workers"
compensation fee schedule charge allowable for IMEs may not be
exceeded by submitting 4 separate charge for the report or other
ancillary procedures incident to the conducting of an IME." ise.
at 100%
Conf. Comm. Rep. No. 117, in 1998 House Journa: Sen.
Conf. Comm. Rep. No. 117, in 1998 Senate Journal, at 794. The
amendment also served, more generally, to decrease “autonobile
insurance rates for [the] driving public.” Hise. Conf. comm. Rep.
No. 117, in 1998 House Journal, at 999; Sen. Conf. Comm. Rep.
No. 117, in 1998 Senate Journal, at 793.
In effect, the Plaintiffs azgue that interpreting
“independent medical examination” to include record reviews
without a physical examination would advance the legislature's
goal of limiting insurance costs becausi
80 construed, a record
review would be subject to the workers’ compensation fee
24
FOR PUBLICATION IN WEST’ S HAKAI'T REPORTS AND PACIFIC REPORTER
schedule. See HRS $ 431:10C-308.5(b). While it is true that the
legislative history reflects that the amendment was aimed at
containing the costs of activities associated with independent
medical examinations, the committee reports do not suggest that
the particular activity of reviewing medical records is, without
more, an independent medical examination. See Engle, 402 F.
Supp. 24 at 1164, If anything, the legislative history militates
in favor of the opposite conclusion insofar as it draws a
Gistinction between an independent medical examination and a
“report or other ancillary procedures incident to the conducting
of an IME.” Hse. Conf. Comm. Rep. No. 117, in 1998 House
Journal, at 1000; Sen. Conf. Comm, Rep. No. 117, in 1998 Senate
Vournal, at 794; see also Engle, 402 F. supp. 2d at 1164.
Although the committee reports do not specifically state that a
record review is an ancillary procedure that is incident to an
Andependent medical examination, we believe that the legislature
Probably viewed it as such, especially because record reviews are
generally understood to be measures undertaken in preparation for
independent medical examinations, gee 13 Couch on Insurance
S 196:67, at 196-72. :
Aside from the 1998 amendment to the cost containment
Provision, the Plaintiffs draw attention to one of the sentences
added in 2000, which directed that “[t]he independent medical
examiner shall be selected by mutual agreement between insurer
and claimant; provided that if no agreenent is reached, the
selection may be submitted to the commissioner, arbitration or
circuit court.” 2000 Haw. Sess. 1. Act, 138 § 2 at 270 (emphasis
25
‘8* FOR PUBLICATION IN MEST’ § HAMAI'T REPORTS AND PACIFIC REFORTER ++
omitted). The conmittee reports indicate that this provision was
intended “to establish a fair selection process that favors
selection by agreement.” Sen. Conf. Com. Rep. No. 37, in 2000
Senate Journal, at 742; Hse. Conf. Com. Rep. No. 37, in 2000
House Journal, at 865. The legislature emphasized that “the
selection should not be = perfunctory matter” and that “every
effort should be made to select a neutral examiner with a
balanced approach that favors neither insurer (nor claimant.”
Sen. Conf. Com. Rep. No. 37, in 2000 Senate Journal, at 742; hse,
Conf. Com. Rep. No. 37, in 2000 House Journal, at 965. The
jegislature further indicated that “[tJhose examiners who have
acquired reputations for favoring one side or the other should
not be selected” and that “[e)xaniners who are primarily treating
doctors who are familiar with conmunity treatment protocols,
injury patterns and cultural factors, that do not rely heavily on
IME income that may affect bias, are to be favored.” Sen. conf.
Com. Rep. No. 37, in 2000 Senate Journal, at 742; Hse. Cont. com.
Rep. No. 37, in 2000 House Journal, at 365,
The Plaintiffs contend that the term “independent
medical examination” should be read to encompass record reviews,
in the absence of a patient-contact examination, such that all
medical experts who review records must be selected pursuant to
the "mutual agreement” provision. See HRS § 431:10C-308.5(b)
‘The Plaintiffs urge that their interpretation would effectuate
the legislature's goal of ensuring that an independent medical
examination is indeed “independent.” while the committee reports
relating to the 2000 amendments no doubt address what it means to
26
** FOR PUBLICATION IN WEST’ 8 HAWAI'T REPORTS AND PACIFIC REDORTER ++«
be “independent,” they simply do not speak to the contours of the
“examination,” particularly whether an actual examination of the
claimant is required or whether a review of the claimant's
records would suffice. See Sen. Conf. Com. Rep. No. 37, in 2000
Senate Journal, at 742; Hse. Con. Com. Rep. No. 37, in 2000
House Journal, at 865. Simply put, the reports consider who
Performs the examination, but not how the examination is to be
Performed, See Sen. Conf. Com. Rep. No. 37, in 2000 Senate
Journal, at 742: Hse. Conf. Com. Rep. No. 37, in 2000 House
Journal, at 865.
Apart from the “mutual agreement” provision, the
Plaintiffs highlight that, in the 2000 amendments, the
legislature inserted the condition that “[t]he independent
medical examiner shall be of the same specialty as the provider
whose treatment is being reviewed, unless othervise agreed by the
insurer and claimant.” 2000 Haw. Sess. L. Act, 138 § 2 at 270
(emphasis omitted). During the floor debates, Representative Ron
Menor had this to say about the provisio:
Doctors representing the Hawai‘i Medical
Association who requested (the specialty provision)
were concerned about the use of unqualified persone
forming IME zeviews of thelr work. 1 agreed £0 do
50 because T felt that the inclusion of this
Fequirenent made conan sense, For example, it makes
sense to require a neurosurgeon IME to gevigw speeet
surgery. Moreover, it would not make sense'to allow
pn IME psychiatrist to ceview the treatment of ¢
broken leg by an orthopedist. in addition, = person
Performing an IME review of 3 knee reconstructvon by
an orthopedic surgeon should have training in
orthopeaie surgery.
Comment by Representative Menor, in 2000 House Journal, at 710
(emphases added) (quotation marks omitted). Representative Rony
a7
‘** FOR PUBLIGARTCN INV WEST’S HAWAI'T REPORTS AND PACIFIC REPORTER ©
N+ Cachola Likewise spoke about the specialty provision, noting
that:
Given as an example, is a case wherein a
claimant with foot and spinal injuries; anece
treatment Zecords are to be geviewed, has andergone
treatment by a podiatrist, physical therapicrs
ghiropractor and orthopedic surgeon. In this’ example,
the question to ask is, does the spactalty proveres
fap that you have to requize four IMs with the
sere specialty to ceview treatment conducted by the
Podiatrist, physical therapist, chiropescter aod
orthopedic surgeon? 3 believe that if the provision
of this bill is narrowly interpreted, then Ene anccer
is “yes.”
However, S€ we acknowledge that there are
clinical overlaps, and thus medical specialist or
multivspecialist is knowledgeable abouts
clinical problem then the answer is "no" =. there is
Ro requirenent for four TMEs.
IE is for the aforementionad reasons that in the
Eomeittee report, to clarity the speciaity provision
that language is included to insure chet IME doctors
possess adequate knowledge necessary to proveriy
Eeuiaw the treatment rendered by the tresting medical
Provider.
Comment by Representative Cachola, in 2000 House Journal, at 712
(emphases added) (quotation marks omitted).
‘The Plaintiffs maintain that the statements by
Representatives Menor and Cachola during the floor debates in
connection with the specialty provision illustrate that a record
Feview is an independent medical examination, because the
representatives repeatedly asserted that an independent medical
examination involves a “review” of the claimant's treatment
“records.” Although independent medical examinations often, if
not usually, involve record reviews, from our perspective, the
representatives’ statements do not address whether a record
review is, in and of itself, an independent medical examination.
Moreover, “*[s]tray comments by individual legislators, not
28
FOR PUBLICATION IN MEST’S HAWAI'T REPORTS AND PACIFIC RECORTER +++
otherwise supported by statutory language or committee reports,
cannot be attributed to the full body that voted for the bill.’*
Wright vu 4 111 Hawai'i 401, 411 n.8, 142
P38 265, 275 n.8 (2006) (quoting Bennett v. Yoshina, 9° F. supp.
2d 113%, 1180 (D. Haw. 2000), aff'd, 259 F.34 1097 (9th cir.
7001)). Re discussed earlier, the specialty provision does not,
by its terms, unequivocally dictate that a record review is an
independent medical examination. See supra section III-A.
Tooking past the statutory language, the committee reports
reflect that the provision was intended to ensure “that IME
Goctors possess adequate knowledge necessary to properly evaluate
the treatment rendered by the treating dector or medical
Provider.” Sen. Conf. Com. Rep. No. 37, in 2000 Senate Journal,
at 742; Hse. Conf. Com. Rep. No. 37, in 2000 House Journal,
at G65. Like the statutory language, the committee reports are
silent with respect to whether a record review alone is an
independent medical examination. Therefore, even assuming,
andusnde, that the conments of Representatives Menor and Cachola
could be read to suggest that @ record review is, without more,
an independent medical examination, those comments could not be
jmputed to the full legislature that voted for the bill because
they would not be supported by the statutory language or
committee reports. See Weight, 111 Hawai'i at 411 n.8, 142 p.3d
at 275 ne
The Plaintiffs also analogize the independent medical
examination process to the peer review organization systen
Prescribed in HRS § 431:10C-308.6 (1993), which was repealed in
29
FOR PUBLICATION IW WEST'S HAKAI'T REPORTS AND PACIFIC REPORTER +++
1998 because it was too expensive and time-consuming. See. 1997
Haw. Sess. L. Act 251, §§ 59 and 70 at 551, 5$3; Hse. stand. com,
Rep. No. 250, in 1997 House Journal, at 1211. Under the peer
review system, if 4 PIP insurer wanted to dispute the
eppropriateness of certain treatments or charges, it had to
initially request a peer review. See HRS $$ 431:10C-308.6(a)
(1993) and 431:10C-308.5(c) and (a) (1993). A peer review was
conducted by an organization that was approved by the insurance
0C-308.6(b). Additionally, the
commissioner. HRS § 43
organization was required to designate an individual who
Practiced the same specialty as the claimant's treating health
care provider, Id. The Plaintiffs point out that the
independent medical examination process is similar to the peer
review system to the extent that the examiner must be
“independent,” insofar as he is selected by agreement or tribunal
and of the same specialty as the provider whose treatment is
being reviewed. See HRS $§ 431:10C-308.5(b) (Supp. 2002) and
431:10C-308.6(b). The Plaintiffs appear to a
the legislature regulated record reviews in the peer review
et that, just as
system, so too did it intend to regulate record reviews thitough
independent medical examinations. The Plaintiffs’ argunent begs
the question of what it means to be “examined,” because, unlike
the peer review system, the independent medical examination
Process clearly contemplates an “examination.” HRS
§ 431:20C-308.5(b). Thus, we believe that the Plaintiffs?
analogy te the repealed peer review system ultimately breaks
down.
30
‘** FOR PUBLICATION IN WEST'S MAMAI'r REPORTS AND PACIFIC REPORIER «++
Beyond citing legislative history, the Plaintifes
attempt to denonstrate legislative intent by invoking the cannon
of construction that “‘the legislature is presumed not to intend
an absurd result.’” Colony Surf, 116 Hawai'i at 516, 174 p34
St S55 (quoting Grav, 84 Hawai's at 148, 931 2.24 at $90). they
maintain that it would be absurd to interpret HRS § 431;100-308,5
8s Governing PIP benefit denials based on actual examinations,
But not record reviews, because either type of evaluation can be
used Co support a denial of payments to medical providers. But,
as the district court observed in Engle and the hearings offices
noted in Weigel, there is in fact a logical distinction between a
Physical examination and 2 record review. See Engle, 402 F.
Supp. 2d at 1164-65; Weigel, ATX-2002-134-P, RO at 8. the
claimant understandably has 2 more substantial interest in
selecting the dector who actually examines her person than in
choosing the person who reviews her medical records, especially
when the examination is invasive or the medical problem is of a
Private nature. See Engle, 402 ©. Supp. 24 at 1164-65; Weigel,
29%-2002-134-P, RO at 9. Hence, we conclude that interpreting
fhe term “independent medical examination” as necessarily
Anctusing an actual examination as a component does not yield an
absurd result in contravention of legislative intent. see Golony
Surf, 116 Hawai's at 516, 174 P.3d at 355,
In short, the legislative intent underlying HRs
§ 431:10C-308.5(b) does not undermine the insurance
conmissioner’s understanding that an “independent medical
examination” requires some type of actual examination.
a
*** FOR PUBLICATION IM WEST’S MAMAI'T REPORTS AND PACIFIC REPORTER «++
Consequently, we believe that his interpretation is not palpably
erroneous and is therefore worthy of deference. See Vail, 75
Haw. at 65-66, 856 F.2d at 1239-40 (deferring to the employees’
wetizement system's reading of an ambiguous term in HRS § 98-43,
Fecause the plaintiff had failed to denonstrate that the reading
was palpably erroneous); Nelson, 97 Hawai'i at 390-91, 38 .34
at 109-20 (deferring to the Hawai'i Civil Rights commission's
Gecision interpreting Hawai'l Administrative Rules § 12-46-109,
which in turn construed HRS § 378-2 (Supp. 1994), because the
agency’s intexpretation was not palpably erroneous); Tkeloar, 65
Haw. at 424-26, 653 P.2d at 426-27 (according deference to the
Separtment of labor and industrial relations’ construction of an
ambiguous statutory provision in HRS § 386-54, because the
Gepartment’s construction was not palpably erroneous); State v.
Mecully, 64 Haw. 407, 411-14, 642 P.2d 933, 937-38 (1982)
(according deference to a postal inspector's testimony regarding
the United States Postal Service’s customary interpretation of a
federal statute governing the opening of mail pursuant to a
search warrant authorized by law, because that interpretation vas
not palpably erroneous); Holi, 113 Hawai'i at 198, 205-06, 150
F.3d at 847, 854-55 (deferring to the insurance commissioner's
interpretation of HRS § 431:10C-103, which he had enunciated in
an administrative rule, in an appeal from a judgment entered in a
Gispute initiated in the circuit court).’ We therefore hold that
ence maintains thet Yail, Zeeloar, Nelson, and Holi are
me the present matter on the ground thar they intotses
WGency decision interpreting a statute, gae Vail, 75
1231-33) Teeloar, 68 Haw. ot 48-20, S$ Sh
(continues. .)
32
‘#4 FOR PUBLICATION IN WEST'S HAWAI'S REPORTS AND PACIFIC REPORTER
an actual examination, physical or otherwise, is an essential
aspect of an “independent medical examination” under HRS
$ 431:10C-308.51b).
D. Because An “Independent Medi 2
Examination, Physical Or others: =
Statute,
In the present matter, Dr. Hector did not actually
examine Gillan, but, instead, limited his evaluation to a review
"(continues
aeedidy 24s OF an adninistrative rule interpreting a statute, see Nelson, 97
Hawai a 387-88, 28 P.3d at 106-07; Hols, 113 Hawai'i ae Soscae, See 50
af 854-55. | Concurring opinion at 5-6. The applicabilicy ot the dace eiee
Brinctple did not, however, turn on those factual circanstences, “Rather che
Gispositive considerations in the cases were that the staterenat Angie
Sontained broad or ambiguous language, that an agency had been chassed with
FSEEYing out the mandate of the statute, that the agency had incespoeved ive
broad of ambiguous language, and that the agency's Intefpretatrer ere act
felpably erroneous. aa Uail’"7s Haw. at 66, S06 P.2d at iids dreisan 6s
Bag, 9518725 287.083 Sze Be 426-275 Medgon, 37 Hawai's at 391, 36 So,
Heli, 113 Hawai's at 206, 150 P.30 at #55." Thus, ‘the fact that this vase Ged
OE Soncern an agency appeal or an administrative rule ie a aveticeine
without a difference
Here if otherwise, the applicability of the deference principie would,
ip sone cases, depend on a party's choice of forum. The facto nr sate oats
Provide ap instructive illustration. If the Plaintiffs haa gretee te
initiate this proceeding before the commissioner, gaa Ho's $91T100-312,
Agstead of ‘che circuit court, gee HRS § 431:10¢-314, then, under the
concurrence’s approach, the deference principle would agply tershe
Senpigsioner's interpretation of HRS $451:10¢-308.5. Eoneurring opinion
at S06. It is because the Plaintiffs elected to submit the dinate te ne
SixsuiE court that the concurrence does not Believe that the srintipis
ppelis. Id. Although the deference principle may not have been ceetositive
in the present matter, gee concurring opinion at 1é-19 (discussing sen Geer”
Conn, Rep. No. 117, in 199¢ Senate Journal, at 794), it may nell Poses
controlling effect’ in other cases. Individuals should not’ be alivaca fo
Sigcuavent ‘the deference principle through forum shopping: s'prseried teat
yshovld be discouraged as ‘inimical to sound judicial aaginierearre
a 86 Hawai'i 59, 65, 947 P.2a 372, 397 (age
(quoting Jenaan G4 Haw. 446, 448, 663 P.24 70, 72. (1982), (holding
Shabse s HIME of Aner alla, forum shopping concerns, “ene {lest paseoies
epens* feean foF fhe resolution of a nortautt dispute Pinds the other’ piety
fo,that forum unless the circuit court finds that the parties hove eters
ito a mandatory and binding azpitration agreenent” lompaasis celsteate yet
thet is precisely wnat the concurrence’s appronch would pesatt’
3
‘14 FOR PUBLICATION IN WEST’ 5 HAMAI'T REPORTS AND PACIFIC REPORTER +
of her medical records. Therefore, Dr. Hector did not perform an
independent medical examination on Gillan in evaluating the
appropriateness of her treatment from Or. Keller. Because or.
Hector did not perform an independent medical examination within
the meaning of HRS § 431:10C-308.5(b), it follows that the
statute did not require GEICO to seek Gillan’s consent before
selecting the doctor. Accordingly, GEICO did not violate the
statute when it declined to seek Gillan’s consent in selecting
Dr. Hector to review her records.
je ICA was correct in so
holding, See Gillan, 117 Hawai'i at 477, 184 P.3a at 792.
IV. coucLustoN
In Light of the foregoing, we affirm the May 7, 2008
Judgment of the ICA.
Roy K.S. Chang
(Harvey M. Demetrakopoulos
on the briefs),
for the plaintiffs-appellees- :
petitioners Margret Gillan Le Pbimen—
end Howard Keller, M.D.
L.,
Kathy K. Higham, Beceeee Retin Aree
fo the defendant-appellant-
petitioner Government Bneloyees PR ko. Ru
Insurance Company
J.P. Schmidt,
Insurance Commissioner
(Mark J. Bennett,
Attorney General,
David A. Webber,
Deputy Attorney General (DAG),
and Deborah Day Emerson, DAG,
on the briefs),
for the amicus curiae
State of Hawai'i
on the briefs:
Katharine M. Nohr,
for the amicus Curiae
Hawaii Insurers Council
34
| 6cc7c6128db9fabdcca53e596f2953768b60025472bdd91756747626acf3ede4 | 2008-10-29T00:00:00Z |
d7c3ea05-f0ec-43a3-aaf9-aee8a4baa8ea | County of Hawaii v. C&J Coupe Family Limited Partnership | null | null | hawaii | Hawaii Supreme Court | No. 28822
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
a0
COUNTY OF HAWAIT, a municipal corporation,
Petitioner /Plaintiff-Appellee,
oat
CéJ_COUPE FAMILY LIMITED PARTNERSHIP, =
‘Respondent: Defendant Appellant,
Ova
9:6 WY 8 Tar eaae
S14
and
ROBERT NIGEL RICHARDS, TRUSTEE UNDER THE MARILYN SUE WILSON
TRUST; MILES HUGH WILSON, et al.,
Defendants.
o0-1-181K
COUNTY OF HAWAII, @ municipal corporation, Plaintiff,
ROBERT NIGEL RICHARDS, TRUSTEE UNDER THE MARILYN SUE WILSON
TRUST; CuJ COUPLE FAMILY LIMITED PARTNERSHIP; MILES HUGH WILSON,
et al., Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIV. NOS. 05-1-015K & 00-1-181K)
(By: Moon, C.J. for the court')
Upon consideration of the application for transfer
filed by petitioner/plaintiff-appellee County of Hawaii, the
papers in support and in opposition, and the record,
IT IS HEREBY ORDERED that the application for transfer
(supp. 2007). This
is granted pursuant to HRS § 602-58(a) (1)
considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, Jv.
case is transferred to the supreme court effective the date of
this order.
XT IS FURTHER ORDERED that the case will be scheduled
for oral argument. The parties will be notified by the appellate
clerk regarding scheduling
DATED: Honolulu, Hawai'i, July 8, 2008.
FOR THE COURT:
ofr gustice
| 02a04ed78a73e07dc327f2ae5ea646ec8d4a56d415e7867515ce76eadfae94e2 | 2008-07-08T00:00:00Z |
c2b05fb9-030b-4674-b95d-eb53b8ee9d7d | Mizukami v. Mizukami | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28522
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
GLENN KIYOHTKO MIZUKAMI,
Petitioner /Defendant-Appeliant.
DONNA EDWARDS MIZUKAMT, ka DONNA EDWA
Respondent /Plaintiff-Appellee, &
22
ve “= S =
ae 2 6
5
a
su
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-D No. 90-4214)
ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI
(By: Moon, C.J. for the court’)
Petitioner/defendant-appellant Glenn Kiyohiko Mizukami,
by application for a writ of certiorari filed on gune 12, 2008,
seeks supreme court review of orders of the Intermediate Court of
Appeals filed on May 14, May 23, and June 5, 2008. The ordera
are not reviewable by the supreme court by application for a writ
of certiorari. See HRS § 602-59(a) (Supp. 2007). Therefore,
3? IS HERESY ORDERED that the application for a writ of
certiorari is dismissed.
Honolulu, Hawai'i, June 27, 2008.
FOR THE COUR
DATEE
} considered by! Moon, C.J., Levinson, Nakayana, Acoba, and Duffy, Jo
| 2e80066a17d53370548130dafcf3edb8d7a3b0c383e73fcb5fa407e7a382358b | 2008-06-27T00:00:00Z |
45eadabd-5353-4ae1-b26b-2df467373c39 | 1000 Friends of Kauai v. The Department of Transportation, State of Hawaii | null | 28845 | hawaii | Hawaii Supreme Court | No. 28845
IN THE SUPREME COURT OF THE STATE OF HAWAT'
azq
Vor m2 var eae
1000 FRIENDS OF KAUAI, a Hawaii non-profit incorporStion;
RICHARD HOBPPNER, an individual,
Petitioners/Plaintiffs-Appellants,
‘THE DEPARTMENT OF TRANSPORTATION, STATE OF HAWAIT; BARRY
FUKUNAGA, in his capacity as Director of the DEPARTMENT OF
‘TRANSPORTATION OF THE STATE OF HAWAII; MICHAEL FORMBY, in his
capacity as Director of Harbors of the DEPARTMENT OF
(TRANSPORTATION OF THE STATE OF HAWAII and HAWAII SUPERFERRY,
INC., Respondents /Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(crv. NO. 07-1-0131)
‘ORDER DENVING APPLICATION FOR TRANSFER
(By: Moon, C.J. for the court")
upon consideration of the application for transfer
filed by petitioners/plaintiffs-appellants 1000 Friends of Kauai
and Richard Hoeppner, the papers in support and in opposition,
and the record, it appears that petitioners’s case does not meet
the requirements for mandatory or discretionary transfer set
forth in HRS §§ 602-58(a)(1) and -58(b) (1) (Supp. 2007)
‘Therefore,
‘IT IS HEREBY ORDERED that the application for transfer
is denied.
DATED: Honolulu, Hawai‘i, July 24, 2008.
FOR THE COUR
Zi gustice
Moon, ¢.J., Levinson, Nakayama, Acoba, and Duffy, 33.
» considered by:
| 33d5ad191baaae5c63d02700a8e9973ae67e6041064e03910d82413592024a52 | 2008-07-24T00:00:00Z |
029dab97-7755-4b18-a625-3c17b63e9f3b | Edwards v. Mizukami | null | null | hawaii | Hawaii Supreme Court | No. 28522
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
DONA EDWARDS MEZUKAMZ, ka DONNA EDWARDS, my
Respondent /Plaintiff-appelles, 5} &
v. ze §
GLENN KIYOHIKO MIZUKAMI, e
Petitioner /Defendant-Appeliant. Ese =
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-D No. 90-4214)
ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI
(By: Noon, C.J. for the court’)
upon consideration of petitioner/defendant-appellant
Glenn Kiyohiko Mizukami's application for a writ of certiorari,
filed on June 27, 2008, and motion to withdraw the application,
filed on July 8, 2008,
IT IS HEREBY ORDERED that the application for a writ of
certiorari is dismissed. See HRS § 602-59(a) (Supp. 2007).
DATED: Honolulu, Hawai'i, July 23, 2008.
ror THe court: SA®
ey
Betsey
see SEM
\ considered by: Moon, C.J., Levinson, Wakayama, Acoba, and oufty, 7.
qa
| 79b3a882612351ef2f1014050eaf3fe307eff19a7d86a0c9ed656e0c5ae36421 | 2008-07-23T00:00:00Z |
1be4e7fe-54af-446d-b8bf-a4742ae441f9 | Allstate Insurance Company v. Pruett. Concurring and Dissenting Opinion by J. Acoba [pdf]. | 118 Haw. 174 | null | hawaii | Hawaii Supreme Court |
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
JNU THE SUPREME COURT OF THE STATE OF HAWA'T yy
== 080 Blo
Bef
ALLSTATE INSURANCE COMPANY, 35 Ss i
Plaintiff-Appellee, Cross-Appellee, 358 2
vs. 2 8
a minor,
PEARL PRUETT; MEREDITH PRUETT; and IKAIKA PRUETT,
Defendants-Appellants, Cross~Appellees,
and
CHARLENE MANGLICMOT, a minor; MICHELLE CASIL,
befendants-Appellees, Cross~Appellees,
a minor,
and
SALVADOR PEBENITO; BOARD OF WATER SUPPLY, CITY AND COUNTY OF
HONOLULU, Defendants-Cross-Appellees,
and
DOE 1-10, Defendants.
PEARL PRUETT, individually and as guardian of IKAIKA PRUETT
‘and MEREDITH PRUETT,
Third-Party Plaintiffs-Appellants, Cross-Appellees,
vs.
AIG HAWAII INSURANCE COMPANY, a Hawai'i corporation,
‘Third-Party Defendant-Appellee, Cross-Appellant.
26830
No.
APPEAL FROM THE FIRST CIRCUIT COURT
(CIV. NO. 02-1~-1404)
JUNE 25, 2008
NAKAYAMA, AND DUFFY, JJ.
MOON, C.S., LEVINSON,
AND ACOBA, J., CONCURRING AND DISSENTING
{#** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
OPINION OF THE COURT BY NAKAYAMA, J.
Defendants-Appellants, Third-Party Plaintitfs-
Appellants, Cross-Appellees, Pearl Pruett, Tkaika Pruett, and
Meredith Pruett (collectively, “the Pruetts”), appeal from the
Circuit Court of the First Circuit's ("circuit court's")
October 18, 2004 final judgment partially in favor of Plaintiff-
Appellee, Cross-Appellee, Allstate Insurance Company
("AlIstate”).! On appeal, the Pruetts assert that the circuit
court erred when it determined that Allstate was not obligated to
defend or indemnify Pearl and Ikaika Pruett under Allstate’s
homeowner’'s insurance policy naming Pearl Pruett as the named
insured.
Both Allstate and Third-Party Defendant-Appellee,
Cross-Appellant, AIG Hawaii Insurance Company ("AIG")
(collectively, “the Insurers”), appeal fron the circuit court's
October 18, 2004 final judgment partially in favor of the
Pruetts. On appeal, the Insurers present the following points of
error: (1) the circuit court erred when it held that the Pruetts
were entitled to coverage under the Insurers’ automobile
insurance policies; (2) the circuit court erred when it
determined that the phrase “any person” as used in the automobile
insurance policies was ambiguous; and (3) the circuit court erred
when it determined that the Pruetts were entitled to recover
costs and attorney's fees against the Insurers.
For the following reasons, we hold that the circuit
(2) did not err when it determined that liability
The Honorable Victoria S$, Marks presided.
2
FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
coverage was afforded to Meredith Pruett and Tkaika Pruett
pursuant to the terms of AIG's automobile insurance policy,
inasmuch as the manner in which the term “any person” was used in
AIG’s policy was ambiguous; (2) did not err when it determined
that Personal Injury Protection (“PIP”) coverage was afforded to
Tkaika Pruett pursuant to the terms of Allstate's automobile
insurance policy, inasmuch as the manner in which the term “any
person” was used in Allstate’s policy was ambiguous; (3) erred
when it determined that Pearl Pruett and Ikaika Pruett were
afforded Liability coverage under Allstate’s automobile insurance
policy because any claim arising from the automobile accident
(4) abused
would not arise ovt of the use of an “insured auto’
its discretion in awarding costs and attorney's fees to the
Pruetts because the circuit court did not order the Insurers to
“pay benefits”; and (5) did not err when it determined that the
Pruetts were excluded from coverage under the terms of Allstate's
homeowner's insurance policy. Accordingly, we affirm in pact and
reverse in part the circuit court’s October 18, 2004 final
judgment.
BACKGROUND
Factual Background
Pearl Pruett is the biological grandmother and adoptive
mother of Ikaika Pruett, who is a minor. Meredith Pruett is
Pearl's biological daughter, Ikaika’s biological aunt, as well as
Tkaika's sister as a result of the adoption. Pearl, Meredith,
and Ikaika all reside together
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
on February 8, 2002, Ikaika was involved in an
automobile accident while operating a vehicle owned by Meredith.
Tkaika did not have a driver's license at the time of the
accident. He also did not have a reasonable belief that he was
entitled to operate the vehicle, and had neither Meredith's nor
Pearl’s permission to use or operate the vehicle.
According to the circuit court's undisputed findings of
fact, Charlene Manglicmot, Michelle Casil and others may claim to
suffer injuries from the accident, Additionally, Salvador
PeBenito and the Board of Water Supply of the City and County of
Honolulu and others have claimed or may claim property damage
from the accident.
Meredith was listed as the named insured on an AIG
automobile insurance policy, which was in effect on the day of
the accident. Pearl was listed as the named insured on an
Allstate automobile insurance policy and an Allstate homeowner’ s
insurance policy, both of which were in effect on the day of the
accident.
B. Procedural Background
On June 10, 2002, Allstate filed a complaint in circuit
court seeking, inter alia, a judicial declaration that it did not
owe duties to defend or indemnity the Pruetts under its
automobile insurance policy for any claims or injuries arising
out of the automobile accident. Allstate alse sought a
declaration that it was not required to provide PIP coverage to,
Apter alia, Tkaika Pruett.
++" FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
on July 8, 2002, the Pruetts filed a counterclain
against Allstate, as well as a third party complaint against AIG.
In their counterclaim, the Pruetts alleged that Allstate owed
duties to defend and indemnity under both its automobile and
homeowner's insurance policies. The Pruetts claimed that
coverage was owed under the homeowner's policy because the
Pruetts “expect property damage and personal injury clains to be
asserted against them . . . based on allegations including but
not limited to negligent entrustment and negligent supervision of
a minor.” In ita third party complaint, the Pruetts asserted
that AIG owed them duties to defend and indemnity under AIG's
automobile insurance policy issued to Meredith.
on Novenber 7, 2002, AIG moved for summary judgment on
the Pruett’s third party complaint. On November 25, 2002,
Allstate moved for sunmary judgnent on its complaint and on the
Pruett’s counterclaim. On December 17, 2002, the Pruetts filed a
cross-motion for summary judgment against Allstate and AIG.
on Mazch 4, 2003, the circuit court filed its findings
of fact, conclusions of law and order granting in part the
Pruetts’ cross-motion for sunmary judgment against Allstate and
AIG. The circuit court also denied in part Allstate's notion for
summary judgnent, and denied AIG's motion for summary judgnent.
Therein, the circuit court ruled that the exclusions from
coverage enumerated in both AIG's and Allstate’s insurance
policies did not apply to the Pruetts because the phrase “any
+ FOR PUBLICATION IN WEST'S HAWAll REPORTS AND PACIFIC REPORTER ***
person” as used in the policies vas ambiguous. Accordingly, the
circuit court determined that the Pruetts were entitled to
coverage under the Insurers’ auto policies for personal injury
and property damage claims. For the same reason, the circuit
court also determined that Ikaika Pruett was entitled to personal
injury protection coverage through Allstate’s auto insurance
policy.
on June 28, 2004, Allstate filed a motion for partial
summary judgment as to its duty to defend on a claim alleging
negligent parenting by the Pruetts. On September 7, 2004, the
circuit court granted Allstate’s motion for partial summary
Judgment. In its order, the circuit court concluded that
Allstate was not obligated, pursuant to the terms of its
homeowner's insurance policy, to defend or indemnify any of the
Pruetts for any claim to recover for injuries arising from the
autonobile accident, which included claims for negligent
parenting.
On Septenber 8, 2004, the circuit court granted the
Pruetts’ request for an award of costs and attorney's fees.
‘This award was based on the Pruetts’ prevailing on the issue of
coverage under AIG's and Allstate’s automobile insurance
policies, and not under Allstate’s homeowner’s insurance policy.
The circuit court's final judgment was filed on October
18, 2004. Notices of appeal were timely filed by the Pruetts on
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
october 22, 2004, ATG on November 15, 2004, and Allstate on
November 16, 2004.
IT, STANDARDS OF REVIEW
Summary Judgment
On appeal, the grant or denial of summary judgment is
reviewed de novo. See State ex, rel, Anzai v. City and County of
Honolulu, 99 Hawai'i 508, 514, 57 P.3d 433, 439 (2002); Bitney v,
Honolulu Police Dep't, 96 Hawai'i 243, 250, 30 P.3d 257, 264
(2001).
[s)unmary judgment is eppropriate if the pleadings, depositions,
answers to interrogatories, and adnissions on file, together with
the affidavits, if any, show that there is no genuine issue a3 to
any material fact and that the moving party is entitied to
judgment as a matter of law. A fact is material if proof of that
Fact would have the effect of establishing or refuting one of the
Gesential elements of @ cause of action ar defense asserted by the
parties. The evidence must be viewed in the Light most favorable
Eoithe non-moving party. Ia other words, we must view all of the
Gvigence and inferences draun therefzan in the Light most
favorable to the party opposing the motion.
Kahale v, City and County of Honolulu, 104 Hawai'i 341, 344, 90
P.3d 233, 236 (2004) (citation omitted).
B. Interpretation of Insurance Policies
Regarding interpretation of insurance policies, this
court has stated:
[I)neurers have the sane rights as individuals to init their
Liability and to impose whatever conditions they please on their
obligation, provides they are not in contravention of statutory
inhibitions or public polley. As such, insurance policies ar
Jubject to the general rules of contract construction; the ter
Of the policy should be interpreted according to their plaii
ordinary, and accepted sense in commen speech unless it appears
fiom the policy thst a different meaning is sntendes. Moreover,
Gvery insurance contract shall be constfued according to the
Gheifety of its terms and conditions as set Zoren in the policy.
Nevertheless, adherence to the plain language and literal meaning
Of insurance contract provisions is not without limitation. We
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
have acknowledged that because insurance policies are contracts of
adhesion and ave presised on standard forma prepared by the
Insurer's attorneys, we nave long subscribed to the principle that
they must be construed liberally in favor of the insured and any
ambiguities must be resolve ageinst the insurer. Put ancther
way, the rule is that policies are to be construed in accord with
the reasonable expectations of 2 layperson.
Dairy Rd. Partners v, Igland Ins. Co., Ltd., 92 Hawai'i 398, 411-
12, 992 P.2d 93, 106-07 (2000) (citations, quotation marks, and
brackets omitted).
©. Attorney’s Fees and Costs
This court reviews the circuit court's dental and
granting of attorney's fees under the abuse of disczstion
standard. “Eagtaan , McGowan, $6 Hawai'i 21, 27, 946 P.2d
1517, 1333 {Tg97) Tettation omitted); Coll ¢, Mccartny, 12
Haw.’ 20, 28, 604. P.24 #61, 887 (1991). "The tesal court
abuses its discretion if it bases ite ruling on an erroneous
view of the law or on a clearly erroneous sgsecsment of the
ridence.” SF awas's 471,
43, "€87 'p.2d 4028, Tost (1395) (citation, internal
quotation sarks, and brackets omitted). Stated differently,
“[aln abuse of discretion scours where the trisl coure has
cleariy exceaded the bounds of reason oF disregarded rules
or principles of law or practice to the substantial
Setrinent of a party litigant." State ex sel. Sronster y,
i 82 Hawaii 52 34, 519 P.2d 234,
ste (i396)
TSA Int’) Ltd. v. Shimizu Corp., 92 Hawai'i 243, 253, 990 P.2d
713, 723 (1999) (some citations omitted); see Ranger Ins, Co. vs
Hinshaw, 103 Hawai'i 26, 30, 79 P.34 119, 123 (2003) (same).
XZ, DISCUSSION
A, ‘The Circuit Court Did Not Err When It Determined That the
Term “Any Person” Was Ambiguous As Used In the Insurers’
Automobile Policies.
‘The Insurers maintain that the circuit court erred when
it determined that the term “any person” was ambiguous as used in
their respective automobile insurance policies. In so
maintaining, the Insurers urge this court to construe the term
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
“any person” as unambiguously including family members of the
named insured.
1. » ~ vi
ates an ambiguity that aust be
resolved against it.
AIG's insurance policy defines an “Insured” as follows:
Part Ar-Liability Coverage
A. We will pay Compensatory damages for bodily injury or
property damage for which any insured becomes Legally
Fesponsible because of an auto accident
Br tngured as used in this Part means:
Ti "You or any family member for the ovnership,
maintenance or use of any auto or trailer.
2. Any person using your covered auto with your
pernisaicn.
3. For your covered auto, any person or organization
bur only with Fespect to legal fesponsibility for acts oF
omissions of @ person for vhon coverage ie afforded under
4. For any auto or trailer, other than your covered
auto, afy other person oF organization but only with respect
to legal responsibility for acts of omissions of you or any
fanily menber for whom coverage is afforded under this Part
Contained within this same “Part” is the following
pertinent exclusion ("Exclusion No. 8") from coverage enumerated
in AIG's insurance policy: “We do not provide Liability Coverage
for any person: ... 8. Using a vehicle without a reasonable
belief that that person is entitled to do so.”
The terms “you" and “your” are defined in the
“Definitions” section of AIG’s insurance policy as “[tJhe ‘named
insured’ shown in the Declarations; and . . . [t]he spouse if a
resident of the same household.” The term “family member” is
defined as “a person related to you by blood, marriage or
adoption who is a resident of your household, or such person
while temporarily living elsewhere. This includes a ward or
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
foster child[.]"? The term “any person” is not defined in the
policy,
As set forth above, the Insurers urge this court to
construe the term “any person” as used in the exclusions section
of their insurance policies as unambiguously including family
members of the named insured. To support their argument, they
point to a majority of jurisdictions which have held accordingly.
See, e.9., Hartford Ins, Co, of the Midvest v. Halt, 646 N.Y.S.2d
589, 594, 223 A.D.2d 204, 212 (App. Div. 1996) (overruling
ne. v. Covenant Ins. Co., 156 A.D.2d 936, 549 N.Y.S.2d
237 (N.Y. App. Div. 1989) because “the majority of courts that
have addressed the issue is correct and that the countervailing
view is unreasonable and unjust”);? Close v, Ebertz, $83 N.W.2d
+ re de undisputed that Meredith Pructe is the named insured. 1¢ Le
also undisputed that ikaika Pruett satisfies the policy's definition of a
Stamuly menber," inasmuch aa he 1s related to Meredith "by blocd” and
“adoption,” and both of then reside in the sane household.
> As explained by the New York court,
The vast majority of courts considering the issue
[hola} that the policy unambiguously excludes coverage for
anyone, including # "family member”, who Uses the vehicle
without permission (sa,
S3e Nic." so1, 432 5.8.24 2647 Allied Group dng. Cow
Allstate Ins. Co,, 123 Idaho’ 733, 87 P.24 405; Estate of Ge
Yang v General Che, Co, 185 Wib.24 919, $20 N.We2d 291
(Unpublished decision-tewt at 1994 ML 269261], review cenieg
520 N.W.2d 142; Harlan vy Valley Ins Co., 128 Or.App. 128,
895 F.2d ¢7i, review dented 319 Or. 401, 079 P.24. 1085;
1 215 Gactpp. 265, 444 8.2.28
3 ‘Rpp.Ct. 673, 624
N.e.28 615 EAB u , 176 Wis.24
Sis, S02 N.w.24 618 [unpublished decision-eent a¢ 1993 WL.
96770); Qnaha Prop, 4 cas. Ins, co. v, Jonnson, 866 8.W.2d
539 (Tenn-Aep.]; Gtae-fatm Mut Auto, Ing, Co, v, Casualty
ca0'sore 106 Toa appli Gone.
Reciprocal Exch,
Harps, 196 Ga. App. 340, 396 5.8.20 66;
Kitsers Cas ings co. "232 u.3.Super
2, $87 R.2a 0st
15 wa. Ape.
(cont inva:
10
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
794 (M.D. 1998) (“The majority of courts(] . . . have concluded
the ‘any person’ language unambiguously includes a ‘family
member [.]!")
However, notwithstanding what these jurisdictions have
held, this court has agreed that the term “any person” may be
‘ambiguous when construed within the context of the terns of the
insurance policy itself. See AIG Hawai'i Ins. Co. v. smith, 78
Hawai'i 174, 182-83, 891 2.24 261, 269-70 (1995) (agreeing with
Econ. Fire § Cas. Co. v. Kubik, 492 .N.E.2d 504 (111. 1986)). In
51. .continued)
S03, 541 A.2d 1540, cert denied 313 td. 612, 547 A.2d 189)
Eithe Teo Ga.app- 377, 3568.f,24 525; State Farm Mute
Ste ins, co. vs Kelly, 132 Wis.2d 107, 309 HeWe2d 658,
Eevige detiad 147 Wia.24 485, 399 6.24 545, aa alge,
Bee Rospican family ins, co., 698 F.Supp. 189
TE-D.Wo.] {applying Wissourl Tas]; Sf., Donegal tht. Tos,
Ue iyieey 360 Fa.super. 89, 519 A-2d 10087 Mallon ye
7199 F.Supp. 63, 85, n. 1 [D.Ken.) (applying Kansai
Taw]}~, The foregoing Cases hold that, because the term
person” is unambiguous and has no technical or otherwis.
Festricted definition in the policy itself, it should be
accorded its common meaning. (ssa, ™
Ang. cou, supra, 330N-C., at 401, 432 S.E-2d, at 290;
sdinmats Ins. co ‘Buoea, 213 Galapp., at 265-
2es, ae S.E.2G, st 300; State Farm Mit, Auto, Ins, Cov.
any
Gaaualty Reciprocal Exch. aupea, at 1087 a6, Paul Tne. co.
go -autaers Cas. ins. co. supra, 232 N.J-Super., © 566, 537
Rela, at 105¢)- As a result, those cases hold that “any
Person” means exactly that, necessarily including any
Neamily menber” or even the named insured (gee,
a fF gubea, 330 N-Cyy aE AOL, 432
5-8-2, at290) Qeaha Pros. ¢ Cas. Ins. Co. v. Johnson
‘mupia, ‘ot $417 state farm Mut Aute, ina Go, 7, Caauaiey
supa, at 108; ~
UbLa, 196 Ga.App.y at 341-342, 386 8.8.26, at 68)
Eases reason that no anbiguity'is created merely because one
fart of the policy establishes general coverage, whereas the
Dther part establishes specific exclusions (see, Onahe Broo,
Ecas. Ins. co, v. Johnscn, supra, at 541; General Ace Furs
KUiteansie Corey Persy, gupta, 75 Md.App., at 509, Sel
ie2a, at 1342; gee gig, Deiakill v. aserican family Ins,
Sou, guna, ot 793).
Harkiord ing. Co. of the Midwest, 646 N.¥.5,24 at 592-93, 223 4.0.24 at 208-10,
(alterations added and in original)
a
* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Smith, we observed that the ‘appellants’ construction of clause
four runs counter to the selective use of” the terms “any person”
and “family member” ™
policy.”* Id. at 182, 891 P.2d at 269 (emphasis added).
As stated by the Kubik court, by itself, the term “any
‘in defining the scope of coverage in the
person,” encompasses] every possible individual including the
insured and his family members." Kubik, 492 N.E.2d at 507.
However, while the terms “family menber” and “any person”
have 2 Clear meaning when standing alone, that meaning can
Dbecone, as in the instant cage, anbiguous through the nanier
in which thage teres are used throughout the policy. In
this regard, we nove that the terms "fanily member” and “any
person” are used selectively throughout the polie
exclusions in such a way a= to create the impre
they refer to gutually exclusive classes.
Hon that
Ads (emphasis in original).
‘This court agreed with the Kubik court’s reasoning and
concluded that “the selective use of the terms ‘any person’ and
‘family member’ in clause four of AIG's policy creates mutually
exclusive classes[.]” Smith, 78 Hawai'i at 183, 891 P.2d at 270.
Accordingly, a person could not “claim entitlement to coverage «
= by asserting that he is both ‘any person’ and a ‘family
member." Ide
Clause four of the insurance policy at issue in Smith stated, as
follows
“covered person” as used in this
i.” For any auto of tratier, other than your covered auto,
Any person or organization but only with respect to loge!
Eesponsibility for acts or omissions of you or any family
esber for whom coverage is afforded under this Part. This
provision applies only if the person or organization does
Rot own or nize the auto of erailer.
Td, at 180, 991 F.2d at 267 {hold in original).
2
{+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Allstate asserts that Smith is distinguishable from the
instant case, insofar as “there is no Hawai'i case law construing
the term ‘any person’ as used in” the exclusions to coverage
section of an automobile insurance policy. Allstate points out
that Smith construed the term “any person” as it was used to
define the term “covered person” in the insurance policy in that
case, and not ae used in the exclusions to coverage section in
this case. Additionally, the Insurers assert that the majority
view is consistent with Hawaii's rules governing insurance
contract interpretation.
However, Allstate overlooks that the Kubik court
interpreted a clause that excluded coverage “[fJor any person
using a vehicle without a reasonable belief that the person is
entitled to do 90." 492 N.E.2d at 506, The exclusion at issue
in Kubik is virtually identical to Exclusion No. 8 in AIG's
automobile insurance policy, as quoted supra. To reiterate, this
court in Smith agreed with the Kubik court’s analysis and
construed the term “any person” as it was used to define the term
“covered person” in the insurance policy in that case. See
Smith, 78 Hawai'i at 180, 182-83, 891 P.2d at 267, 269-70.
Because we applied the Kubik court’s analysis to the policy
language at issue in Smith, and the interpretation of “any
person” as used in an exclusion was at issue in Kubik, it is
logical to apply the same analysis to the exclusions in this
13
‘#* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
The Insurers correctly point out that this court has
long held that “the terms of the policy should be interpreted
according to their plain, ordinary, and accepted sense in common
speech unless it appears from the policy that a different meaning
is intended.” Dairv Rd. Partners, 92 Hawai'i at 411, 992 P.2d at
106. Additionally, “{a] court must ‘respect the plain terms of
the policy and not create ambiguity where none exists.’ smith
v.New England Mut, Life Ing, Cou, 72 Haw. 531, 537, @27 P.2d
635, 636 (1992) (quoting Eizet Ing. Co, of Hawaii, Inc. v. state
excel. Minami, 66 Haw. 413, 423-24, 665 P.2d 648, 655 (1983)).
However, we have also said that “because insurance
policies are contracts of adhesion and are premised on standard
forms prepared by the insurer's attorneys, we have long
subscribed to the principle that they must be construed liberally
in favor of the insured and any ambiguities must be resolved
against the insurer.” Dairy Rd, Partners, 92 Hawai‘i at 411-12,
992 P.2d at 106-07 (brackets, block format, quotation marks, and
citation omitted). In other words, “the rule is that policies
are to be construed in accord with the reasonable expectations of
a layperson.” Id. at 412, 992 P.2d at 107 (block format,
quotation marks, and citation omitted). In light of this court's
52 Maw, 91, 470 P.2d $71
person” "aaall-enconpassing in determining
whether or not a particular claimant qualified as ‘any perecn’ sustaining
Boaily injury under a business general Liability policy.” sowever, AIG's
reliance on fstherford is misplaced, inasmuch as this court"s decision foc
Prinarily on construing the term "with respect to” as used in the insurance
polsey at issue in that esse, and not the term “any person.” Sea generally
Eatheliord, 52 Maw, 91, 470 P.24 571
AIG contends thi
(2570), construed the term “an}
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long held principles in construing the terms of an insurance
policy, the Insurers’ argument that these terms cannot becone
ambiguous through the manner in which they are used is
unpersuasive.*
As noted supra, the term “any person” is not defined in
AIG's policy. Accordingly, standing by itself, this term “should
be interpreted according to [its] plain, ordinary, and accepted
sense in connon speech . . . ." Dairy ad. Partners, 92 Hawai'i
at 411, 992 P.2d at 106 (quotation marks, block format, and
citation omitted). However, this court need not do so if “it
appears from the policy that a different meaning is intended.”
Id, (quotation marks, block format, and citation omitted).
Indeed, our analysia of the terns of an automobile insurance
policy is not confined to either a single clause or term in
isolation from the rest of the policy. See id, ("[E}very
insurance contract shall be construed according to the entirety
of its terms and conditions as set forth in the policy.”
(Quotation marks, citations, and sone brackets onitted.)).
In this case, we read AIG's policy as classifying an
“Insured” in one of several possible ways: (1) "You" or, as
defined, “(t]he ‘named insured’ shown in the Declarations; and .
[t}he spouse if a resident of the same household[,]” “for the
© Moreover, it should be noted that the Kubik court's framework for
analysis is similar to the manner in which this court analyzes the terms of an
insurance policy. The KUbik court recognized that “the terms ‘family menber"
‘and ‘any person’ have, standing by thenselves, a clear and unambiguous
Beaning.” 492 N.£.2d at $07. However, it further recognized that the
seaning” of these terms “can becone|)\. . . ambiguous through the manner in
which those terme are used throughout the policy.” dd.
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ownership, maintenance or use of any auto or trailer"; (2) “any
family menber for the ownership, maintenance or use of any auto
or trailer”; (3) “any person” either “using your covered auto
with your permission(]" ox “[fJor your covered auto, . . . only
with respect to legal responsibility for acts or omissions of a
person for whom coverage is afforded under this Part"; o (4)
“[f}or any auto or trailer, other than your covered auto, any
other person . . . but only with respect to legal responsibility
for acts or omissions of you or any family member for whom
coverage is afforded under this Part.” It is undisputed that
tkaika Pruett qualifies as “any family member” as defined in
AIG's policy.
The foregoing categories of an “Insured” appear to be
preserved in the exclusions from coverage section of AIG's
insurance policy. For example, AIG’s policy states that
[ule do not provide Lisbility coverage for any cexrson!
(2) For damage to property omned or being transported by”
ihat oersonts] |." (2) Using a vehicle without 8
Feasonable belief that that person is entitled to do sol]
’fand} (10) for any Hability ssaumed by you er say
fepily amber under any contract,
(Emphases added.) In light of the manner in which these
exclusions are used, we believe that “the reasonable expectations
of a layperson” would construe the phrase “that person” to refer
to the term “any person,” and the terms “you or any family
menber” to be mutually exclusive to the classification of “any
person.” See Dairy Rd. Partners, 92 Hawai'i at 412, 992 P.2d at
107 ("(T]he rule is that policies are to be construed in accord
with the reasonable expectations of a layperson.” (Block format,
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quotation marks, and citation omitted.)); see also Smith, 78
Hawai'i at 182-83, 891 P.2d at 269-70. Construing the term “any
person” as used in the exclusion section “liberally in favor of
the insured[,]” and in light of the multiple classifications
created by the definition of an “Insured,” the term “any person”
is ambiguous and its meaning “must be resolved against the
insurer.” Dairy Bd. Partners, 92 Hawai'i at 412, 992 P.2d at 107
(brackets omitted). Accordingly, mutually exclusive classes were
created from AIG's selective use of the terms “you,” “any family
member,” and “any person.” See Smith, 78 Hawai'i at 182-63, 691
P.2d at 269-70. Inasmuch as Tkaika Pruett cannot quality both
under the distinct classes of “any person” and “any family
member," we hold that the circuit court did not err when it
determined that AIG’s Exclusion No. 8 did not apply to Tkaika.
o. * n
al a reates an anbiquit’
that must be resolved against it.
Allstate asserts that the circuit court erred when it
determined that the term “any person” as used in its exclusions
to PIP coverage section of its automobile insurance policy was
ambiguous. Specifically, Allstate points to the following
exclusions that operate to exclude PIP coverage to Ikaika Pruett:
verage does not apply to bodily injury, sickness,
Of deathi) «+. £9 any person while committing
Sct punishable by imprisonment for more than one year(s) +
[ana] to any person while operating or using a motor
eniele without’ a good faith belief that such person is
Tegally entitied to do so.
The circuit court, however, concluded that an ambiguity existed
between the policy’s definition of an “insured person” and the
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exclusions to PIP coverage quoted above.
Black's Law Dictionary defines a “person” simply as
“{a] human being.” Black's Law Dictionary 1178 (8th ed. 2004).
sonable for a layperson
Standing by itself, it would thus be ri
to expect that the term “any person” to mean “any human being.”
See ids see also Dairy Rd, Partners, 92 Hawai'i at 412, 992 P.2d
at 107 ("(T)he rule is that policies are to be construed in
accord with the reasonable expectations of a layperson.” (Block
format, quotation marks, and citation omitted.)); ids at 411, 992
P.2d at 106 ("[T]he terms of the policy should be interpreted
according to their plain, ordinary, and accepted sense in common
speech unless it appears from the policy that a different meaning
is intended.”). As the Kubik court observed, the term “any
person, . . . standing by itself, . . . encompass{es) every
possible individual including the insured and his family
members." 492 N.B.2d at S07.
However, to reiterate, “while the terms ‘family member’
and ‘any person’ have a clear meaning when standing alone, that
meaning can become{] . . . ambiguous through the manner in vhich
those terms are used throughout the policy.” Id. (emphasis
added). In this regard, when these terns “are used selectively
throughout the policy's exclusions in such a way as to create the
impression that they refer to mutually exclusive classes(,]” an
ambiguity results, id., which “must be resolved against the
insurer [,]” Dairy Rd, Partners, 92 Hawai'i at 412, 992 P.2d at
107 (block format, brackets, and citation omitted).
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Liability coverage is provided by Allstate’s auto
insurance policy, in pertinent part, as follows: “Allstate will
pay for all damages an insured person is legally obligated to
payl] because of[] . . . bodily injury sustained by anv
person[.]” (Emphases added.) An “insured person” is defined as,
Anter alia, either “you” or “any resident relative.” “You” is
defined as “the policyholder named on the declarations page and
ident spouse.” “Resident” is defined as
that policyholder’s
“the physical presence in your household with the intention to
continue living there.” The term “any person” is undefined.
Accordingly, the foregoing quoted sentence can be
interpreted in the following manner: “Allstate will pay for all
damages [the policyholder named on the declarations page and
‘that policyholder’s resident spouse[,)” and “any resident
relative”] is legally obligated to pay[] because of {)
bodily injury sustained by any person[.]" As discussed supra,
this sentence appears to explain Alistate’s duty to indemnify an
“insured person” from “damages” that an “insured person is
legally obligated to pay... .” Pursuant to the foregoing
language, it aimply does not make sense for an “insured person”
to seek indemnification for bodily injuries incurred on himself
4€ a layperson were to construe the term “any person” to mean
“any human being.” Therefore, in this context, it would be
unreasonable to expect a layperson to construe the term “any
person” to mean “any human being,” inasmuch as the manner in
which the term is used above clearly cannot include an “insured
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person." See Kubik, 492 N.E.2d at 507; sce also Dairy Bd.
Partners, 92 Hawai'i at 411, 992 P.2d at 106, Accordingly,
Allatate’s use of the terms “any person” and “insured person” in
its ability coverage ection is ambiguous because its selective
use of these terms creates “mutually exclusive classes” contrary
to the meaning of the term “any person” in its “plain, ordinary,
and accepted sense in common speech... .” See Kubik, 492
N.E.2d at 507; gee also Dairy Rd, Partners, 92 Hawai'i at 411,
992 P.2d at 106.
In this case, an insured must seek compensation from
Allstate for his own bodily injuries through any PIP coverage he
may have. PIP coverage is provided by Allstate’s insurance
policy, as follows: “Allstate will pay to or on behalf of the
injured person the following benefits in accordance with Hawaii
no-fault law." According to its policy, “I[playments will be made
only when bodily injury, sickness, disease or death is caused by
an accident arising out of the operation, maintenance, or use of
a motor vehicle
a motor vehicle.” Alistate’s auto policy
defines an “injured person” in pertinent part, as follows:
1) you of a resident relative uno sustains bodtly
injury; sickness, disease, or death:
(i) arising out of the operation, maintenance or
use of any motor Vehicle as a motor vehiclel:]
b) any othér’person who sustaina bodily Anjury,
sickness disease or deseh:
i) arising out of the operation, maintenance or
use Of the insured actor vehicle or a temporary
Toner vehicle(.]
In the PIP coverage section of Allstate’s auto policy, the terns
“you” and “your” are defined as “the policyholder named on the
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declarations page.” The term “resident relative” is defined as
“any person related to you and residing in your household{,)” and
“any minor residing in your household who is . . . in your
custody] or . . . in the custody of any relative who resides in
your household.” The terms “any person” and “any other person”
are not defined by the policy.
There are thirteen exclusions to PIP coverage included
in Allstate’s automobile policy. Wine of these exclusions refer
to the undefined term of “any person,” and do not refer to the
terms “insured person,” “you,” or “resident relative.” For
example, PIP exclusion numbers 1, 2, 3, 4, 7, and 10 state, as
follows:
This coverage does not apply to bodily injury,
sickness, disease or death:
1°’ fo you oF any resident relative while occupying a
motor vehicle owned by you Which is not an insured motor
Vehicle.
2. co a resident relative while occupying = motor
vehicle owned By that person and for which the security
Fequired by the Hawaii no-fault law ie not in effect.
‘3. to\a resident relative who isa named insured
under any Sther contract providing the security required by
the Hawais no-fault law.
{eo any peracn while committing an act punishable
by imprisonnent for more than ane year-
to’ any person while operating or using a motor
vehicle without a good faith belief that euch person is,
Tegaliy entieied eo do se.
io: “t6 any person, other than you or a resident
relative, while occupying any moter vehicle outside the
State of Hawaii sss
Allstate contends that PIP exclusion number 10
demonstrates that the term “resident relative” is included within
the broader term of “any person.” However, Allstate overlooks
that our analysis of the terms of an automobile insurance policy
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is not confined to either a single clause or term in isolation
from the rest of the policy. See Dairy Rd. Partners, 92 Hawai'i
at 411, 992 P.2d at 106 (*[E]very insurance contract shall be
construed according to the entirety of its terms and conditions
as set forth in the policy.” (Emphasis added and quotation
marks, citations, and some brackets omitted.)).
As discussed above, the liability coverage section of
Allstate’s policy creates mutually exclusive classes through its
selective use of the terms “any person” and “insured person.”
See Kubik, 492 N.E.2d at 507. Moreover, the term “any person” is
undefined throughout both the liability and PIP coverage sections
of Alistate’s auto policy. Because it would be unreasonable for
‘a layperson to construe the term “any person” to mean “any human
being” as that term is used in Allstate’s liability coverage
section, and Allstate essentially argues that the term “any
person” should be construed to mean “any human being” in its PIP
coverage section, the term “any person” is ambiguous as used
throughout Allstate's policy and its meaning must therefore be
resolved against the insurer. See Dairy Rd, Partners, 92 Hawa:
at 107, 992 P.2d at 412. Accordingly, we hold that the circuit
M4
court did not err when it determined that Allstate's exclusions
to PIP coverage did not apply to Ikaika Pruett, inasmuch as he is
a part of the “resident relative” class of an “insured person,"
and not the “any person” class as created by the selective use of
those terms in Allstate’s auto policy.
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‘The Circuit Court Erred When It Determined That Liability
Coverage Was Afforded To Pearl and Tkaika Pruett Pursuant To
the Terms Of Allstate's Automobile Insurance Policy.
Allstate asserts that Pearl and Tkaika Pruett are not
entitled to liability coverage because Meredith’s vehicle does
not qualify as an “Insured Auto” as defined in its autonobile
insurance policy. Liability coverage is provided by Allstate's
auto insurance policy, as follows:
Allstate will pay for all danages an insured person
legally obligated to! pay--because of
Te bossy injury sustained by any person, and
21 damage te or destruction of property,
ineluding loss of use.
under these coverages, your policy protects an insured
person fom claine for accidents arising Sut of the
Eenership, maintenance or use, Loading or unloading of an
eured aut
“Ha will defend an insured person sued ae the result of
an auto accident, even if the suit is groundless or false.
fe will choose the counsel. We ney settle any claim or suit
TE We believe se is prope
(Emphasis added.)
Allstate's policy defines an “insured person” in the
following ways:
Insured Persons
Ao "miie using your insured auto:
3) you,
5) any’ resident, and
€) any other person using it with your permission
2. While using a non-owned autor
3) you,
2) any’ reaident relative using # four wheel private
Passenger auto or utility auto
3. Any other person oF organization Liable for the use of
ab inevred auto if the auto 1s not owned of hired by this
person of organizstion, provided the use is by an insured
Person under either of the two preceding paragraphs.
The policy defines an “insured auto” as including, inter alia,
“fa} non-owned auto used by you or a resident relative with the
owner's permission, This auto must not be available or furnished
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for the regular use of an insured person.”
Meredith's vehicle, which was a 1990 Toyota Corolla,
was listed on AIG's auto insurance policy naming Meredith as the
hamed insured. It is undisputed that Tkaika did not have
permission to operate Meredith's vehicle on the day of the
accident. Additionally, it is undisputed that Meredith's car is
not listed as an “insured auto” under Allstate’s auto insurance
policy. Thus, notwithstanding that Ikaika Pruett qualifies as an
“insured person” under Allstate's policy, inasmuch as he is a
“resident relative” who used a “non-owned auto” or a “four wheel
private passenger auto or utility auto,” Allstate’s auto
insurance policy “protects” neither Pearl Pruett nor Ikaika
Pruett as “insured persons” because any “claim(]” arising from
the February 8, 2002 accident would not “aris(e) out of the .
use(] . . . of an insured auto.” See Dairy Rd. Partners, 92
Hawai'i at 411, 992 P.2d at 106 (*(T]he terms of the policy
should be interpreted according to their plain, ordinary, and
accepted sense in common speech unless st appears from the policy
that @ different meaning is intended.”). Accordingly, we hold
that the circuit court erred in its determination that Pearl
Pruett and Tkaika Pruett were afforded Liability coverage
pursuant to the terns of Allstate's automobile insurance policy.
C. The Circuit Court Abused Its Discretion When It Awarded
Costs and Attorney's Fees To the Pruetts.
Hawai'i Revised Statutes (HRS) § 431:10-242 (2005)
provides, in its entiret:
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inere an snourer hag contested ite ILabiiiey under a polley
nnd is ordered by the courts to pay beneficg undor the
policy, the policyholder, the beneficiary under a policy, or
Che pefaon who has acgaired the rights of the policyholder
or beneficiary under the policy shall be awarded reasonable
Steoeney's fete and costs af suit, in addition to the
Benefits under the policy.
(Emphasis added.)
The cireuit court's order granting costs and attorney's
fees to the Pruetts states that the award was made based on the
Pruetts “prevail[ing) on the issue of coverage under the
automobile insurance policies as to Allstate and AIG. . . in
accordance with (HRS § 431:10-242]{.]”" AIG contends that the
circuit court erred when it awarded costs and attorney's fees to
the Pruetts because it was not ordered to “pay benefits” under
ite policy for purposes of HRS § 431:10-242,
Tn Mikelson v, United Serva, Auto, Ass'n, 108 Hawai'i
358, 360, 120 P.3d 257, 269 (2005), this court acknowledged that
the “fundamental question with respect to the issue of awarding
[tattorney's fees and the costs of suit’] is whether [the
insurer] has in fact been ordered to pay benefits within the
meaning of HRS § 431:10-242." (Brackets added.) In Mikelson,
this court denied the insured’s request for attorney's fees
because the trial court ordered the insurer to provide
“(underinsured motorist (*UIM")] coverage” and not “UIM
benefits,” the latter of which would be sufficient to satisty
“the plain and obvious meaning” of the phrase “pay benefits” as
used within HRS § 431:10-242. 108 Hawai'i at 360-61, 120 P.3d at
259-60
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Similarly, in Insurance Co. v , 103
Hawas's 26, 30, 79 P.34 119, 123 (2003), multiple complaints for
declaratory relief were dismissed with prejudice. This court
held that HRS § 431:10-242 was inapplicable because the insurer
was not ordered to pay any benefits under its policy. Id, at 34,
79 P.3d at 127.
In this case, the circuit court ordered that the
exclusions in both Allstate’s and AIG's automobile insurance
policies were inapplicable to the Pruetts, “and coverage is
afforded under [AIG's automobile insurance policy) and
(Alistate’s automobile insurance policy]{.] . . . In addition,
[PIP] coverage is afforded to Ikaika Pruett under the Allstate
Auto Policy arising from the February 8, 2002 accident.”
Because the circuit court did not order the Insurers to “pay
0-242,
benefits,” as mandated by the plain language of HRS § 431:
HRS § 431:10-242 does not apply to this case. See Mikelson, 108
Hawai't at 360-61, 120 P.3d at 259-60; see also Ranger Ins, co,,
103 Hawai"i at 34, 79 P.3d at 127. Accordingly, we hold that the
circuit court abused its discretion when it awarded costs and
attorney’s fees to the Pruetts pursuant to HRS $ 431:10-242. see
TSA Int'] Ltd., 92 Hawai'i at 253, 990 P.2d at 723 (“This court
reviews the circuit court’s denial and granting of attorney's
fees under the abuse of discretion standard. . . . ‘The trial
court abuses its discretion if it bases its ruling on an
erroneous view of the law or on clearly erroneous assessment of
the evidence.” (Citations omitted.)).
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D. The Circuit Court Did Not Err When It Determined That the
Pruetts Were Excluded From Coverage From Allstate’ s
Homeowner's Insurance Policy.
“coverage X" under Allstate’s homeowner's insurance
policy states that “[sJubject to the terms, conditions and
Limitations of this policy, Allstate will pay damages which an
insured person becomes legally obligated to pay because of bodily
injury or property danage arising from an occurrence to which
this policy applies, and is covered by this part of the policy."”
Exclusion nunber § under “Coverage X" ("Exclusion No. 5") states:
“tosses We Do Not Cover Under Coverage Xi. . . 5. We do not
cover bodily injury or property danage arising out of the
ownership, maintenance, use, occupancy, renting, loaning,
entrusting, loading or unloading of any motor vehicle or
trailer." (Italics and bold omitted.)
The Pruetts contend that Exclusion No. 5 does not apply
in this case because “Ikaika’s taking of the keys and vehicle,
without license or permission, is causally related to the
anticipated injury claims()” and, therefore, tkaika’s act “doles)
not fall under his ownership, maintenance, use, cecupancy,
renting, ete. of a motor vehicle.” In other words, the Pruetts
allege that “negligent parental supervision” is a separate claim
> an “occurrence” is defined by the policy as “an accident ()
requlting in bodily injury or property damage.”
+ apparently, a claim of “negligent parental supervision” is
subsuned under Restatement (Second) of Torts § 316 (1965), which states:
A parent is under a duty to exercise reasonable care
(cont ined. 1
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that is not excluded by the terms of Exclusion No. 5.
Accordingly, the Pruetts contend that liability coverage should
be afforded to both Pearl Pruett and Ikaika Pruett through the
terms of Allstate’s homeowner's policy.’
In support of their claim, the Pruetts rely on McDonald
YsHome Insurance Co., 235 A.2d 480 (N.J. Super. Ct. App. Div.
1967), and Worchester Mutual Insurance Co, v. Marnell, 496 N.E.2d
158 (Mass. 1986). Both of these cases hold that “negligent
parental supervision” is a claim that is “separate and distinct
from the use or operation of an automobile.” Worchester Mut
Ins. Co, 496 N.E.2d at 161 (noting, however, that “without the
Severability provision” in the insurance policy, “a literal
reading of the motor vehicle exclusion by itself precludes the
(the parents] from coverage under the policy because [their son],
an insured, owned and operated the motor vehicle involved in the
fatal accident”); gee McDonald, 235 A.2d at 482 (holding that the
“{alction” against the insureds “was not based upon the
ownership, maintenance, operation, use, loading or unloading of
"1. sseonttnued)
0 to control his minor child as to prevent it from
intentionally harming others oF from s0 conducting itself as
to create an unreasonable risk of bodily ham to them, if
‘the parent
(a) knows oF has reason to know that he has the
ability to control Mis child, and
{b) knows oF should know of the necessity and
opportunity for exercising such control.
+ We note that it is undisputed that Pearl Pructt is the named
insured on Allstate’s homeowner's insurance policy, Additionally, the parties
do not dispute chat Ikaika Pruett qualifies sa an “ingured persox” as defined
by the policy.
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autonobiles(,]" but rather the insureds “alleged negligence in
failing to supervise and control their child, knowing of his
violent and dangerous habits").
Notwithstanding the issue of whether a “negligent
parental supervision” claim is covered by the terms of Allstate's
policy, the Pruetts overlook that potential “(1]iability of the
insured to the plaintiff is not the criterions it is the
allegation in the complaint of @ cause of action which, if
sustained, will impose liability covered by the policy.” Danek
yveHommer, 100 A.2d 198, 203 (N.J. Super. Ct. App. Div. 1953),
ait, 105 A.2d 677 (W.J. 1954). Indeed, we have said that a
cuty to defend “is broader than the duty to pay claims and arises
whenever there is a mere potential for coverage.” Sentine) Ins
Cow Ltd. v. First Ins. Co. of Hawai'i, Ltd., 76 Hawai'i 277, 287,
875 P.24 894, 904 (1994) (emphasis in original) (quotation marks
and citation omitted). “the possibility may be remote, but if it
exists(,] the (insurer) owes the insured a defense.” 1d
(rackets in original) (quotation marks and citation omitted).
However, the duty to defend “is limited to situations
where the pl
dings have alleged claims for relief which fall
within the terms for coverage of the insurance contract. Where
pleadings fail to allege any basis for recovery within the
coverage clause, the insurer has no obligation to defend.”
Hawaiian Holiday Macadamia Nut Cou, Inc, vs Indus, Indem, Cou, 76
Hawai'i 166, 169, 872 P.2d 230, 233 (1994) (quotation marks and
citation omitted). When a claim has not been pled, this court
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has expressly declined to consider whether that particular claim
is covered by the terms of a liability insurance policy. see
Fortune v. Wong, 68 Haw. 1, 4n.1, 702 P.2d 299, 302 ni (1985)
(declining to consider “the issue of whether a homeowner's policy
affords coverage when negligent entrustment of an automobile is
alleged[,]” because “*{njegligent entrustment’ was not pleaded”);
see also County of Kaua'i v, Scottsdale Insurance Co., Inc., 90
Hawai'i 400, 403, 978 P.2d 838, 841 (1999) (alleging, inter alia,
negligent supervision in the following manner: “The County
failed to properly train, supervise, hire and discharge its
employees and/or agents including but not limited to Officer
Abadilla” (emphasis added and brackets omitted)); Hawaiian
& Guaran' ve Chis the Firs
Circuit Court, 68 Haw. 336, 339, 713 P.2d 427, 429 (1996)
("(Sleveral suits alleging, inter alia, the negligent entrustment
of the car by Gerald August Lapenes, Jr. to Mervoine Kaio were
brought... 4
on January €, 2004, Federico Casil and Angelina Casil,
individually and on behalf of Michelle Casil (collectively, “the
casils”), filed a complaint against the Pruetts alleging, inter
alia, that “Pearl Pruett is the mother of . . . Tkaika Pruett and
is thus liable for the negligent actions of her minor son which
caused injuries to. . . Michelle Casil.” It also alleged that
“Weredith Pruett was the owner of the car being driven
negligently by . . . Tkaika Pruett, which car was being driven
with the knowledge and consent of” Meredith and, therefore,
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Tkaika’s “negligence is imputed to” Meredith. Ben Manglicmot and
Plizabeth Manglicmot, individually and on behalf of Charlene
Manglicmot (collectively, “the Manglicmots”), filed a complaint
on the same day and made identical allegations against the
Pruetts.!*
Tt does not appear that these complaints allege
“negligent parental supervision.” Instead, it appears that the
complaints claim vicarious liability and negligent entrustment on
the part of Pearl Pruett and Meredith Pruett, respectively. The
Pruetts do not argue that the vicarious liability and negligent
entrustment claims are covered by the terms of Allstate's
homeowner’ s policy, notwithstanding the applicability of
Exclusion No. 5. The Pruetts make their “negligent parental
supervision” argument under the assumption that the complaints
will be amended sometime in the future pursuant to the Hawai'i
Rules of Civil Procedure. The record on appeal does not indicate
that any such amendment has been made. Accordingly, we decline
to express an opinion as to whether a claim of “negligent
parental supervision” is covered under the terms of Allstate's
homeowner's policy. See Hawaiian Holiday Macadamia Nut Co., 76
Hawai‘ at 169, 872 P.2d at 233; see also Fortune, 68 Haw. at 4
nel, 702 P.2d at 302 n.2.
qo reiterate, on September 7, 2004, the circuit court files its
written order granting Allstate's notion for partial summary judgment.
Therein, the chreuit court ruled that Allstate was not “obligated” under the
Terms of the homeowner's insurance policy "to defend or to indemnify any of
(the Prustts) for any clain to recover for injuries sustained in the
autonsbile accident of February 8, 2002, including but not Limited to clains
for negligent parenting.”
31
*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
‘The Pruetts also claim that, as the named insured,
Pearl Pruett had a reasonable expectation of coverage under the
terms of Allstate's homeowner's policy. In Fortune, however,
this court observed that the parente’ purchase of “two policies
specifically written to insure the risks associated with the
operation of automobiles{] . . . belies an expectation on their
part that the homeowner's policy would cover [their son's]
negligent driving{.]” 68 Haw. at 11, 702 P.2d at 306.
Accordingly, this court applied the terms of an exclusion’! to
negate the insurer’s liability for damages arising from the
accident. Id.
Similarly, it is undisputed that Pearl Pruett is the
named insured under an automobile insurance policy issued by
Allstate, Because Pearl has a policy “specifically written to
insure the risks associated with the operation of automobiles(,)”"
Pearl's expectation that she is also covered under her
homeowner's insurance policy is unreascnable. See Fortune, 68
Haw. at 11, 702 P.2d at 306,
Finally, the Pruetts claim that Exclusion No, 5 is
ambiguous because Ikaika’s “act” of taking the keys and vehicli
without a driver's license or permission, “is subject to
differing interpretation(s] in the context of” Exclusion No. 5.
the exclusion at issue in Bortune excluded coverage for “bodily
injury or property danage arising out of the omership, naintenance,
‘operation, use, Loading or unloading of: . . + (2) any motor vehicle owned
OF operated 5} iB Haw, at 10, 102 B.2d
at Sos.
ted or loaned £0 any indured{.]”
32
¢* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
‘hey also appear to assert that Allstate’s “Joint Obligations”*
clause creates an ambiguity between it and Exclusion No. 5
because “Allstate claims that this [clause] applies to Coverage
XL"
However, “the rule” construing an ambiguity against an
insurer “is not applied without exception upon mere assertions of
ambiguity.” Fortune, 68 Haw. at 10, 702 P.2d at 306. “Rather,
ambiguity is found [and the rule] is followed only when the
contract taken as a whole is reasonably subject to differing
interpretation.” County of Kaua'i, 90 Hawai'i at 406, 978 P.2d at
844 (brackets in original) (quotation marks and citation
omitted).
As such, the Pruetts’ assertion that Ikaika’s act
creates an ambiguity with the terms of Allstate's policy is
without merit because it is the terms of the policy “taken as a
whole(,]” and not the actions of the insured, that can be
“reasonably subject to differing interpretation.” See id.
% The “Josnt obligations” clause Le contained within the policy's
explanation of the “Insuring Agresnent,” and states:
‘The tezms of this policy impose joint obligations on the
person naned on the Policy Declarations as the insured and
Ea'that peeson's resident spouse. These persons are defined
a5 you or your. This seans chat the responsibilities, acts
find ondssione of a person defined as you or your will be
Binding upon any other person defined as you or your,
‘the terns of this policy impose joint bligations on persons
Gefined as an insured pereon. This Means that the
Fesponsibilities, acts and failures to act of a person
Gefined az an ingured person will be binding upon another
person defined ag an insured person:
(Gold omitted.)
33
** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Moreover, Allstate did not refer to its “joint obligations”
clause in a manner suggesting that it was asserting that the
clause constituted an exclusion to coverage, Instead, in an
attempt to distinguish a case relied on by the Pruetts,
Wiorchester Mutual Insurance Co., Allstate merely refers to the
clause to illustrate that its policy does not have a severability
clause. Accordingly, we hold that the circuit court did not err
when it determined that the Pruetts were excluded from coverage
under the terms of Alistate’s honeowner’s insurance policy.
IV. conczusroN
Based on the foregoing analysis, we affirm in part and
reverse in part the circuit court’s October 18, 2004 final
Chung Sumida & Teuchiyana for .
third-party defendant-appellee, Shafer
cross-appellant AIG Hawaii
Insurance Company al
Richard 8. Miller and Patricia
Kenau Wali of Ton Petrus ¢ Gone Buttes
Miller, LLLC, for plaintife—
appellee, cross-appellee,
Allstate Insurance Company
Stuart N. Fujioka of Nishioka «
Fujioka, AAL, ALC for defendant s-
appellants, third-party
plaintiffs-appellants, cross~
appellees Pearl Pruett,
Meredith Pruett and Tkaika
Pruett, a minor
34
| 9ec5cd270d5bedbb802e8f26e7f874da450160feb3784ef24e456df6949913d3 | 2008-06-25T00:00:00Z |
d57a7817-c580-4a4f-aeae-1e91fdd1ec8c | In re Tay | null | null | hawaii | Hawaii Supreme Court | No. 29220
siusig
1 ne eae,
IN THE SUPREME COURT OF THE STATE OF HAWR!
is
aq
IN RE NORA CHIN HONG TAY, Petitioners]
shaadi
ORIGINAL PROCEEDING
ORDER GRANTING PETITION 70 RESIGN AND SURRENDER LICENSE
‘Acoba, and Duffy, JJ.)
Moon, C.J., Levinson, Nakayamé
Upon consideration of Petitioner Nora Chin Hong Tay's
Petition to Resign and Surrender License, the attached
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai'i (RSCH), Therefore,
IT IS HEREBY ORDERED that the petition is granted.
I? IS FURTHER ORDERED that Petitioner Tay shall return
License to practice law to the Clerk of ti
The Clerk shall retain the original license as part
Petitioner Tay shall comply with the notice,
(a), (bd, (a), and
her origin:
forthwith,
of this record.
affidavit, and record requirements of sections
(g) of RSCH 2.26.
IT 1S FINALLY ORDERED that the Clerk shall remove the
name of Nora Chin Hong Tay, attorney number 6672, from the roll
of attorneys of the State of Hawai'i, effective with the filing
of this order.
DATED: Honolulu, Hawai'i, July 18, 2008,
re
igh Erma
Peseta bt. Tete
Seen
onan € Dats es
| b328fb83450d6ff7ecb7a77a0a95555f2fe5fe196510120d676adba9e1f9ae5e | 2008-07-18T00:00:00Z |
e9c321e2-0154-42d6-908d-ec6dfdff4eef | State v. Matsuda | null | null | hawaii | Hawaii Supreme Court | No. 28766
IN THE SUPREME COURT OF THE STATE OF HAWAZ'r
STATE OF HAWAT'T
Respondent /Plaintiff-Appellee
vs.
aame
ALISON NOBORU MATSUDA,
Petitioner /Defendant-Appel lant
Jone 29 avis
suing NSW ig
C66 WY OF AVWE
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(cR. NO. 06-1-123)
prsurs: BOR
(By: Moon, C.J. for the court’)
upon consideration of the application for transfer
filed by petitioner/defendant-appellant Alison Noboru Matsuda on
May 5, 2008, the papers in support and the record, it appears
that the application for transfer was filed by petitioner pro se,
but that petitioner is represented by appointed appellate
counsel. Petitioner has not obtained appointed counsel's
discharge pursuant to HRAP 50(c) or withdrawal from the appellate
court or the circuit court pursuant to HRAP 50(b), and petitioner
does not have a constitutional right to hybrid representation
State v, Hirano, 8 Haw. App. 230, 333-36, 802 P.24 482, 484-85,
cert. denied, 71 Haw. 668, 833 P.24 901 (1990). Therefore,
IT 18 HEREBY ORDERED that the application for transfer
ie dismesed without prejudice to an application for transfer
+ Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, J.
filed by appointed counsel of record or by petitioner pro se upon
appointed counsel's discharge or withdrawal effected by the
appellate court or the circuit court.
DATED: Honolulu, Hawai'i, May 30, 2008.
No. 26768, State wv. Matsuda--Order Dismissing Application for
‘Transfer
| d9d25ebe9c249639f4ed9c9de05cd13c24997b203b49fd10440d4f60ab6e29da | 2008-05-30T00:00:00Z |
2d6750f6-e8f8-4d17-ae87-15e59201958a | Ober v. Lighter | null | null | hawaii | Hawaii Supreme Court | No. 26964
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
RONALD ALAN OBER, Respondent /Plaintiff-Appellee/
Cross-Appellee/Cross-Appellant,
and
GARDNER,
aay
g
5
2
Plaintiff,
WILLIAM 8.
ERIC AARON LIGHTER and ERIC AARON LIGHTER, as Trusted?
‘of Credit Bureau International Trustee of Integrity
Five Trust, Petitioners/Defendants-Appellees/
cross-Appellants/Cross-Appellees,
and
as Trustee of Volcano Ventures
WALLIS,
Defendant,
MITCH C.
‘trust,
and
JOAN ELIZABETH PRESCOTT, as Trustee of Credit
Bureau International Trust; CREDIT BUREAU
‘a Hawaii Trust; and SQUARE ROOT
INTERNATIONAL TRUST,
‘a Hawaii Corporation
‘Appellees.
OF 25, LTD.,
Pet itioner/Defendant s-Appel lants/Crot
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(crv, NO. 99-217)
‘TING API WRT
(By: Moon, C.J., for the court’)
Petitioner Eric Aaron Lighter and Bric Aaron Lighter,
ag Trustee of Credit Bureau International Trust’s application for
weit of certiorari, filed June 17, 2008, and petitioner Joan
Levineon, Nakayama, Accba, and Duffy, J
+ considered by: Moon, C.J.
Elizabeth Prescott, as Trustee of Credit Bureau International
Trust, Credit Bureau International Trust, and Square Root of 25,
Ltd.'s application for writ of certiorari, filed June 18, 2008,
are hereby rejected.
DATED: Honolulu, Hawai'i, July 25, 2008.
FOR THE COUR
Lip (FE %
Justice
| 9b3077bfa3e3e3feac8a3cbea48e9ffcdd949329b737f7966ace2804e9fff4c2 | 2008-07-25T00:00:00Z |
6482a9a4-d98e-4b85-a567-c537c8130436 | Walden v. Flanigan | null | null | hawaii | Hawaii Supreme Court | No. 28807
IN THE SUPREME COURT OF THE STATE OF HA
R. CODY WALDEN AND HAWAIIAN FOREST SECURITIES, INC.,
Petitioners/Plaintiffs-Appellante,
CHRIS FLANIGAN; JACKIE FLANIGAN; KEVIN B. FLANIGAN; ONOMEA
PLANTATION, LUC, Respondents /Defendants-Appellees..
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIV. No. 04-1-35)
ORDER DENYING APPLICATION FOR TRANSFER
(By: Moon, C.J. for the court’)
Upon consideration of the application for transfer
filed by petitioners/plaintiffs-appellants R. Cody Walden and
Hawaiian Forest Securities, Inc., the papers in support and in
opposition, and the record, it appears that petitioners’ case
does not meet the requirements for mandatory or discretionary
transfer set forth in HRS §§ 602-58(a) (1) and ~58(b) (1) (Supp.
2007). Therefore,
YT IS HEREBY ORDERED that the application for transfer
is denied.
DATED: Honolulu, Hawai'i, July 21, 200
FOR THE COURT: err
@)
Li. SEAL |
justi 9
fourice By a
* considered by: Moon, ¢.J., Levinson, Nakayama, Acoba, and Duffy, oJ.
a3.
| 2a1d916e485eb89100c1bf70ddc86d4dcb8febf533a6228ca0f0efd81a70b1cd | 2008-07-21T00:00:00Z |
07c6bac4-a427-4122-8c37-0838e8b3f680 | Inoue v. Inoue | 118 Haw. 194 | null | hawaii | Hawaii Supreme Court | no, 28028
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
EGAN H. INOUE,
Respondent /Plaintiff-Appellee
ase
GINA L. INOUE, nka GINA A. KHOUW,
Pet it loner /Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FO-D NO. 03-1-3738)
(By: Acoba, J., for the court)
The Application for Writ of Certiorari filed on May 22,
2008 by Petitioner/Defendant-Appellant Gina L. Inoue, nka Gina A.
Khouw, is hereby rejected.
DATED: Honolulu, Hawai'i, July 3, 2008.
FOR THE COURT:
associate Justice
Robert M. Harris and
Sara R. Harvey, for
petitioner/defendant-
appellant.
A. Debbie Jew (Oliver,
Lau, Lawhn, Ogawa &
Nakamura) for
respondent /plaintiff-
appellee.
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and
putty, 93
| aec0966e1ccbe43b0c6c8f423141f11ca4ada47a9d3bf69a38018f7a217fa12a | 2008-07-03T00:00:00Z |
b83d4731-b269-4175-9499-5a27a08bb324 | VP&PK | null | 29217 | hawaii | Hawaii Supreme Court | No. 29217
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
VeGeK (ML) LLC: NEW SAND HILLS, LLC;
MAUI LANI GOLF INVESTORS, LLC; MAUI LANI 100, LLC?
MAUI LANI PHASE 6, LUC; MAUI LANI PARTNERS;
THE TRADITIONS, INC.; CHRISTINE S. WONG and}
FREDERICK K. WONG, Petitioners, by
THE HONORABLE JOEL E. AUGUST, JUDGE OF THES)
CIRCUIT COURT OF THE SECOND CIRCUIT, #7)
STATE OF HAWAI'I; MAYOR CHARMAINE TAVARES, 3)
SUCCESSOR~IN-INTEREST TO MAYOR ALAN ARAKAWA,
JEEF HUNT, DIRECTOR OF PLANNING, COUNTY OF MAUT,
SUCCESSOR“IN-INTEREST TO DIRECTOR MICHAEL FOLEY,
COUNTY OF MAUI; JOHN G.; KCOM CORP.; KILA KILA|
CONSTRUCTION; and DOE DEFENDANTS 1-100, Respondents.
Yuva LVENION
Bh:z Hd 9 war eo
ORIGINAL PROCEEDING
(CIVIL NO. 07-21-0258)
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioners VPGPK (ML) LLC, New Sand Hills LUC,
Maui Lani Golf Investors LLC, Maui Lani 100 LEC, Maui Lani Phase
6 LLC, Maus Lani Partners, The Traditions, Inc., Christine Wong,
and Frederick Wong and the papers in support, it appears that the
June 4, 2008 order denying dismissal of Counts 1 and II for
failure to join indispensable parties is the subject of a pending
motion for reconsideration. If reconsideration of the June 4,
2008 order 4s denied and if declaratory and injunctive relief is
granted on Counts I and II, the June 4, 2008 order will be
reviewable on a appeal from a final judgment on Counts I and II.
oad
It further appears that petitioners Christine Wong and
Frederick Wong have actual knowledge of the pending Litigation on
counts I and IT, they are property owners whom the respondent
judge considers to be interveners of right on Counts 1 and II,
they can timely intervene on Counts T and IT, and they can appeal
from any adverse final judgment on Counts I and IT and seek a
stay of such judgment pending appeal pursuant to HRAP &.
Likewise, all other petitioners, as parties to Civil No. 07-1-
0258, can appeal from any adverse final judgment on Counts I and
IT and can seek a stay of such judgment pending appeal.
Therefore, petitioners Christine Wong, Frederick Wong, and all
other petitioners are not entitled to mandamus relief, See Kena
Ya Gaddis, 91 Hawai'i 200, 204-05, 982 P.2d 334, 398-39 (1999) (A
weit of mandamus
an extraordinary remedy that will not issue
unless the petitioner demonstrates a clear and indisputable right
to relief and a lack of alternative meana to redress adequately
the alleged wrong or obtain the requested action. Such writs are
not intended to supersede the legal discretionary authority of
the lower courts, nor are they intended to serve as legal
remedies in lieu of normal appellate procedures.). Our standard
for a writ of mandamus cited in Hawaii Nat. Bank, Honolulu v.
Qkine, 51 Haw. 367, 368, 461 P.2d 136, 137 (1969) was based on
HRS § 659-2 (1968) that was repealed in 1972.
It finally appears that petitioners Christine wong,
other petitioners do not have standing to
Frederick Wong, and
eck further mandamus relief on behalf of other unnaned
petitioners. Accordingly,
IT 1S HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, July 8, 2008.
| e7a146d4d719022757162d642d2c09472feb64c136de26b5cca9e527097c80a3 | 2008-07-08T00:00:00Z |
e2157135-551b-4218-bf0a-30b24314cce5 | In re Protection of the Property of Adam | null | null | hawaii | Hawaii Supreme Court | no, 26158
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
In the Matter of the Protection of the Property of
MICHELE ADAM, the Protected Person.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(G. NO. 99-0003K)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Nakayama, J., for the court’)
Petitioner's application for writ of certiorari filed
on May 19, 2008, is hereby rejected.
Honolulu, Hawai'i, June 27, 2008.
pate:
FoR THE COURT: aE
we wee (© SEAL
Associate Justice >
of WS
Richard Adam, petitioner
pro se, on the application
ass
Gl eZ Wd £2 Hr eae
considered by: Moon, C.J, Levinsons Nakayama, Acobs, and Dotty, 99
| e91706fa5d32f6c1977f0b08c70edfebbab85dce32cb134afda765b3fb23d4b0 | 2008-06-27T00:00:00Z |
2f6fa230-a31f-44de-8a98-30d9992289ae | Blaisdell v. Corrections Corporation of America, Inc. | null | null | hawaii | Hawaii Supreme Court | Law uisRaRy
no. 29458
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
RICHARD BLAISDELL, Petitioner,
CORRECTIONS CORPORATION OF ANERICA, Respondel
ORIGINAL PROCEEDING
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duh
upon consideration of Richard Blaisdell's pa
october 25, 2008, which axe deemed a petition for a writ of
habeas corpus, it appears that habeas corpus relief is available
to petitioner in the circuit court and petitioner presents no
special reason for invoking the supreme court's original
jurisdiction. See Qili v. Chane, 57 Haw. 511, 512, 557 P.2d 787,
788 (1976). Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall file the petition for a writ of habeas corpus without
payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
habeas corpus is denied without prejudice to seeking habeas
corpus relief in the circuit court pursuant to HRS § 660-3
(2993).
DATED: Honolulu, Hawai'l, November 12, 2008,
ozs
| 397c129569a82642dc7d273b3ad856f903c43d078544ba835668552b46d4c3a0 | 2008-11-12T00:00:00Z |
a2bdfcc0-a42f-438c-b470-d4ca5288ff48 | LDS Family Services v. Ching | null | 29213 | hawaii | Hawaii Supreme Court | LAW LIBRARY
Wo. 29213
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
Los FAMILY SERVICES, RICHARD sraxes and ug) | &
Petitioners, a, 5
é
2
2
JENNIFER STAMPS,
THE HONORABLE GALE CHING, JUDGE OF THE FAMEq
COURT OF THE FIRST CIRCUIT, STATE OF HAWAT')
ROBERT JOSEPH RAMIREZ and CAMIRA BAILEY, Resporents.
3M
ORIGINAL PROCEEDING
ORDER
(By: Moon, C-J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the stipulation for dismissal of
this original proceeding signed and filed pursuant to HRAP 42(b)
by the petitioners and the respondents,
IT IS HEREBY ORDERED that the stipulation for dismissal
is approved and this proceeding is dismissed
DATED: Honolulu, Hawai'i, July 8, 2008.
| e8aefbab98fbcf688b664f8cbece917129fc4acdeaa72e723cb04e06091da39a | 2008-07-08T00:00:00Z |
83716e08-6660-40b0-8496-1e120bc90f7b | State v. Romano | null | null | hawaii | Hawaii Supreme Court | No. 26120
i
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Plaintiff-Appellee
PAME ANN MARY LETLANI-ROMANO, Defendant ~Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(CASE NO. 1P103-00755 OF 8/26/03; HPD CR. NO 03024777)
(ey: Acoba, Te fer the court’)
upon consideration of the “HREP Rule 40 Petition to
Vacate, Set Aside of Correct Judgment Entered on August 26, 2003"
filed by Pane Ann Mary Leilani Romano on July 18, 2008 in the
suprene court, it appears that the petition seeks post-conviction
relief pursuant to HREP Rule 40 from the August 26, 2003 judgment
of conviction and sentence of the district court of the first
circuit, The petition should be filed in the district court of
the first circuit, not in the supreme court, See HREP Rule 40(b)
(°A proceeding for post-conviction relief shall be instituted by
£41ing a petition with the clerk of the court in which the
conviction took pla
"), Accordingly,
» considered by: Moon, C.J. Levinson, Nakayama, Acobs, and Duffy, JJ.
a3
IT IS HEREBY ORDERED that the HRPP Rule 40 petition is
Gismissed without prejudice to filing the petition in the
Gistrict court of the first circuit.
DATED: Honolulu, Hawai'i, August 1, 2008.
FOR THE COURT:
Associate Justice \
| 5f3d058388620a60ed7ff4ee2d36ef0caa8696ea8db34e2c3f462ae15a00b468 | 2008-08-01T00:00:00Z |
7fe2c693-b93b-4ce4-b9fc-dca41da0536a | Smith v. Kim | null | 29166 | hawaii | Hawaii Supreme Court | LAW LIBRARY
no. 29166 g
IN THE SUPREME COURT OF THE STATE OF HAWAT' 2 a
a =
fn
GARDINER BOSEY SMITH III, Petitioner, 2 o
vs. eS
‘THE HONORABLE GLENN J. KIM, JUDGE OF THE CIRCUIT
COURT OF THE FIRST CIRCUIT, AND N. ANAYA, CLERK OF THE
CIRCUIT COURT OF THE FIRST CIRCUIT, Respondents.
ORIGINAL PROCEEDING
(CIVIL NO. 07-1-0785-05)
ORDER GRANTING MOTION TO WAIVE FILING FEE
AND DISMISSING PETITION FOR WRIT OF MANDAMUS
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Petitioner pro se Gardiner Bosey Smith IIT petitions for a
Weit of Mandamus directed to the Honorable Glenn J. Kim, Judge,
Circuit Court of the First Circuit, and N. Anaya, a clerk of that
court [hereinafter, collectively, respondents}. Petitioner also
moves for waiver of the filing fe
A writ of mandamus and/or prohibition is
an extraordinary remedy that will not issue
unless the petitioner demonstrates a clear
and indisputable right to the relief
requested and a lack of other means to
redress adequately the alleged wrong or to
obtain the requested action. Straub Clinic &
Hospital v. Kochi, 81 Hawai'i 410, 414, 917
P.2d 1284, 1288 (1996). Such writs are not
meant to Supersede the legal discretionary
authority of the lower court, nor are they
meant to serve as legal remedies in lieu of
normal appellate procedures. Id. Where a
trial court has discretion to act, mandamus
will not lie to interfere with or control the
exercise of that discretion, even when the
judge has acted erroneously, unless the judge
has exceeded his or her jurisdiction, has
committed a flagrant and manifest abuse of
discretion, or has refused to act on a
subject properly before the court under
circumstances in which it has @ legal duty to
act.
Koma v. Gaddis, 91 Hawai'i 200, 206-05, 982 P.24 334, 338-39
(1999), The materials presented by petitioner cannot support a
conclusion that respondents have “exceeded . . . jurisdiction" or
have committed “a flagrant and manifest abuse of discretion.*
Purther, if judgment is entered in favor of the defendants in the
underlying action, Civil No. 07-1-0785-05 GJK, petitioner will
have a right to appeal after entry of the final judgment. thus,
mandamus will not lie. Therefore,
IY IS HEREBY ORDERED, pursuant to Section 607-3 (1993) of
the Hawai'i Revised Statutes, that the motion for waiver of the
filing fee is granted and the filing fee for this proceeding, No.
29166, is waived.
YP 2S FURTHER ORDERED, pursuant to Rule 21(c) of the Hawai'i
Rules of Appellate Procedure, that the petition is denied.
DATED: Honolulu, Hawai'i, gune 9, 2008.
Deas CuO ane
Gooey
Cone Aub itr
No. 29166, Smith v. The Honorable Glenn J. Kim--Order
Granting Motion to Waive Filing Fee and Dismissing
Petition for Writ of Mandamus
| b36b2e4012cf1e53c761330472d231b5a814cbfa1482daf27e73ed273c456dca | 2008-06-09T00:00:00Z |
375fe038-9501-472e-b952-0f0efb92eb1a | State v. Elicker | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 28190
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
Plaintiff-Appellee,
STATE OF HAWAII,
and
IS8 Wy 1 samy
oss
ALBERT R. BATALONA and DAVID K. SCRIVNER, Defei
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-0787)
o -
(By: Nakayama,
for the court’)
Petitioner-Appellant’s application for writ of
ertiorari filed on April 22, 2008, is hereby rejected.
DATED: Honolulu, Hawai'i, May 16, 2008.
FOR THE COURT:
Buuil ruwteyane Seal
Associate Justice
Shawn A. Luiz for
petitioner-appellant
on the application
Nakayama, Acoba, and Duffy, 29
Moon, C.J. Levinson,
considered by:
| 0682a61ccc5e7badf315df7ccb711eb92c2de1d921617ad6dad7875805419829 | 2008-05-16T00:00:00Z |
e2495dc9-512f-4650-a0c4-749471741901 | State v. Kassebeer | null | null | hawaii | Hawaii Supreme Court | No. 27660
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
STATE OF HAWAI'I, fe =
os sf §
=a = o
ANTHONY KASSEBEER. JR., “2° @
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04-1-0688)
onl FOR Wi
(By: Levinson, J., for the court’)
Defendant-appellant-petitioner Anthony Kassebeer, Jr.'s
application for writ of certiorari, filed May 29, 2008, is
accepted and will be scheduled for oral argument. The parties
will be notified by the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai'i, July 8, 2008,
FOR THE COUR’
steven 8 Set
Mescte Sieice TQ
Joseph R. Mott) III,
for the petitioner,
on the application
Considered by: Moon, C.J, Levinson, Nal
fanz, Acoba, and Ovffy, Jd
| c0fc9463bd3a601a2975b6e20911c1490e844e3aaaebba5178e554d2fc2d9b43 | 2008-07-08T00:00:00Z |
b1c6e5b9-5d9e-4fb1-be57-a15c91cdb779 | State v. Town | null | 29186 | hawaii | Hawaii Supreme Court |
no. 29186
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
» : zi
STATE OF HAMA'T, Petitioner, Bl
fe
vs. es y
THE HONORABLE MICHAEL A. TOWN, JUDGE OF THE/E = =
crncur? couRT OF THE FIRST CIRCUIT, STATE OF ERM, BOT
‘and ERNIE GOMEZ, Respondents.
ORIGINAL PROCEEDING
(one NO. Oacin1i36)
(ay: Moon, C.J. Levinson, Nakayama, Acoba, and Duffy, 39.)
Upon consideration of the petition for writ of
andamas filed by petitioner State of Havas's and the papers in
support, it appears that the respondent judge had the inherent
poser to stay execution of the mittimus pending the disposition
of the application for pardon and the stay of execution was not @
flagrant and manifest abuse of discretion. See Havas't
Constitution, article VI, section 1; HRS § 603-21.9(6) (1993).
Therefore, petitioner is not entitled to mandanus relief. see
state ex rel. Marsland v. Anes, 71 Haw. 304, 306-07, 786 P.2d
1281, 1283 (1990) (the extraordinary writ of mandamus is
appropriate to confine an inferior tribunal to the lawful
exercise of its proper jurisdiction. Where the trial judge has
discretion to act, mandamus ill not Iie to interfere with or
control the exercise of that discretion, even where the judge has
acted erroneously, unless the judge has exceeded his or her
jurisdiction, has committed 2 flagrant and manifest abuse of
6
retion or has refused to act on a subject properly before the
court where it was under a legal duty to act.). Accordingly,
IT 18 HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, June 13, 2008.
Fp
Me Erte
Reuter Oreo
Pree
Gone betty
| ebb931026410e2f72376b69cea279930079b5d8f6361089be0622c59f34d46eb | 2008-06-13T00:00:00Z |
8e6e6f98-fa92-4681-9e38-ceac9f9242ea | Stop Rail Now v. Sakamoto | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 29327
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STOP RAIL NOW, LET HONOLULU VOTE, LEAGUE OF WOMEN
VOTERS OF HONOLULU, SENSIBLE TRAFFIC ALTERNATIVES
RESOURCES, INC. dba HONOLULU TRAFFIC. COM, PAUL DE GRACIA,
PAUL E. SMITH, ROBERT KESSLER, WARREN P. BERRY,
JEREMY LAM, M.D., SCOTT R. WILSON, DENNIS CALLAN,
‘and SEMUEL SLOM, Petitioners,
THE HONORABLE KARL K. SAKAMOTO, JUDGE OF THE”
CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I
and DENISE C. DECOSTA, in her capacity as CITY CEERK
OF THE CITY AND COUNTY OF HONOLULU, ‘Respondefifs.
aan
2
3
=
3
ORIGINAL PROCEEDING
(CIV. NO. 08-1-1605)
(By: Moon, C.J. Levinson) Wakayama, and Duffy, 39., and
Tnteinediate Court of Appesis Judge Hakanira,
‘in place of Reoba, J. recused)
Upon consideration of the petition for a welt of
andamus filed by petitioners Stop Rail Now, Let Honolulu Vote,
League of Women Voters of Honolulu, Sensible Traffic Alternatives
& Resources, Inc., Paul De Gracia, Paul . Smith, Robert Kessler,
Warren P. Berty, Jeremy Lan, M.D., Scott R. Wilson, Dennis
Ccattan, and Samet Sion and the papers in support, we conclude
that Petitioners have not demonstrated that they are entitled to
mandamus relief. See Kemay. Gaddis, 91 Hawai'i 200, 204-05, 982
P.2d 294, 328-39 (1999) (A writ of mandamus is an extraordinary
renedy 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
request
d action.). Accordingly,
IT IS HEREBY ORDERED that the petition
s is denied.
DATED: Honolulu, Hawai'i, September 3, 2008.
Baa Lien —
Pete C-reenyane
Korie €. Rudyr Sr
Og U. Holomue—
| c5330574ca37c7acc5deaba8fa047d6fb500fc64bbfd342e69d7f6dc1e739515 | 2008-09-03T00:00:00Z |
91e579b2-a871-4707-b89c-349186ae7af8 | The Sierra Club v. The Department of Transportation of the State of Hawaii | null | null | hawaii | Hawaii Supreme Court | No, 29035
Sly 4] 1390 aimz
oats
THE SIERRA CLUB, a California non-profit corporation
registered to do business in the State of Hawaii; MAUI TOMORROW,
INC., a Hawaii non-profit corporation; and the KAHULUI
HARBOR COALITION, an unincorporated association,
Petitioners /Plaintiffs-appellants/Cross-
Appellees/Appellees/Cross-Appellants,
‘THE DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAII:
BRENNON MORIOKA, in his capacity as Director of the DEPARTMENT OF
‘TRANSPORTATION OF THE STATE OF HAWAII; MICHAEL FORMBY, in his
capacity as Director of Harbors of the DEPARTMENT OF
TRANSPORTATION OF THE STATE OF HAWAII; HAWAII SUPERFERRY, INC.,
Cro!
Respondents /Defendant s-Appe1
‘Appellants/Appel lants/Cross-Appellees.
APPEAL AND CROSS-APPEAL FROM THE SECOND CIRCUIT
(CIV. NO. 5-1-0114)
(By? Moon, C.J. for the court")
Upon consideration of the application for transfer
2008, by petitioners/plainti tt
Maui Tomorrow, Inc., and
filed on September 26,
Sierra Club,
the papers in support and in
Kahului Harbor Coalition,
opposition, and the record,
I IS HEREBY ORDERED that the application for transfer
(supp. 2007) ana
ie granted pursuant to HRS § 602-58 (a) (1)
Levinson, Wakayama, Acoba, and Duffy, J.
* considered by: Moon, C.J,
accepted pursuant to HRS § 602-S8(b) (1) (Supp. 2007). This case
is transferred to the supreme court effective the date of this
order.
IT IS FURTHER ORDERED that the case will be scheduled
for oral argument. The parties will be notified by the appellate
clerk regarding scheduling.
DATED: Honolulu, Hawai'i, October 14, 2008.
FOR THE COURT:
| 57cb74f4a8f458797b4782476ecb3f985d3ae147a1d7030d322a7698a42a7086 | 2008-10-14T00:00:00Z |
17df6d43-0aa2-4f56-b234-81af6a98bc61 | State v. Branco | null | null | hawaii | Hawaii Supreme Court | ARY
wo, 28020
Ee
82 214d 91 sew ome
ars
IN| THE SUPREME COURT OF THE STATE oF HAWABE)S
4
STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
vs.
ROBERT G.K. BRANCO, Petitioner/Defendant-Appel lant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 05-1-0863)
CERTIORARI
(By: Acoba, J., for the court")
‘The Application for Writ of Certiorari filed on
April 22, 2008 by Petiticner/Defendant-Appellant Robert G.K.
Branco is hereby rejected.
Honolulu, Hawai'i, May 14, 2008.
FOR THE COURT:
TNS,
‘Associate Justice
DATED:
Shawn A, Luiz, on
the application for
pet itioner/defendant-
appellant.
Considered by: Moon, C.J., Levinson, Nakayana, Acoba, and
Defty, 99.
| bc547c881535d51d5206d7f8504bf3b89c90f9a68cb61a1dd2a80a405ac437ff | 2008-05-14T00:00:00Z |
9bd3b5c2-4d42-4a84-a65e-dfa270cd07c1 | State v. Cutsinger | null | null | hawaii | Hawaii Supreme Court | no. 28203
IN THE SUPREME COURT OF THE STATE OF HAWAT'S! gz
STATE OF HAWAT'T, Respondent/Plaintiff-Appe!
os
WALTER LEE CUTSINGER, Petitioner/Defendant-Apj
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 5-1-1409)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Duffy, J., for the court!
and Acoba, J, dissenting)
Petitioner/Defendant-Appellant Walter Lee Cutsinger’s
application for 2 writ of certiorari, filed on May 23, 2008, is
hereby rejected.
DATED: Honolulu, Hawai‘i, June 18, 2008.
FOR THE COUR
Gene. Buttes Or
Associate Justice
Glenn D. Choy,
for petitioner/defendant-
appellant on the application
Kimberly Tsunoto Guidry
and Girard D. Lau,
Deputy Solicitors’ General,
for respondent /plaintiff-
appellee on the response
‘considered by: Moon, c.
Aeoba, and Duffy, 99
| 79818cb2178a1c51179cc4ef6287568ad79f833892dd44d3a37f08df9d13c1e4 | 2008-06-18T00:00:00Z |
07ce89c0-86db-402f-99cb-3982439f20ae | Stoneridge Recoveries, LLC v. Hifo | null | 29137 | hawaii | Hawaii Supreme Court | No. 29137
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
We
STONERIDGE RECOVERIES, LLC, Petitioner,
434
‘THE HONORABLE EDEN ELIZABETH HIFO, JUDGE OF
CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAM
CITY AND COUNTY OF HONOLULU, DEPARTMENT OF BUDGET
BND FISCAL SERVICES; and OFFICE OF ADMINISTRATIVE
HEARINGS, DEPARTMENT OF COMMERCE AND CONSUMER
AFFAIRS, STATE OF HAWAI'I, Respondents.
8051 Ha 2h
ORIGINAL PROCEEDING
(CIV, NO. 07-1-0469)
ORDER
Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of the petition for a writ of
mandamus filed by petitioner Stoneridge Recoveries, LLC and the
papers in support, it appears that the dismissal of Civil No. 07-
41-0469 is reviewable on appeal of the April 15, 2008 judgment.
Petitioner has a remedy by way of appeal and petitioner can seek
a stay of the April 15, 2008 Judgment pending appeal from the
appellate court. See HRAP 6. Therefore, petitioner is not
entitled to mandamus relief. See Kema v. Gaddis, 91 Hawai'i 200,
204-05, 982 P.2d 334, 338-39 (1999) (A writ of mandamus is an
extraordinary remedy that will not issue unless the petitioner
demonstrates a clear and indisputable right to relief and a lack
of alternative means to redress adequately the alleged wrong or
obtain the requested action. Such writs are not intended to
supersede the legal discretionary authority of the lower courts,
oats
nor are they intended to serve as legal remedies in lieu of
1 appellate procedures.), Accordingly,
IT IS HERESY ORDERED that the petition for a writ of
mandamus is denied,
DATED: Honolulu, Hawai'i, June 2, 2008,
| 023b40f76e630cc107946317940e9e238298ff6bf09f8df27832fbc1e4002542 | 2008-06-02T00:00:00Z |
5424c66a-4400-43aa-8e01-b9d4fa239b9a | Abordo v. Court Documents Clerk of the Circuit Court of the First Circuit | null | null | hawaii | Hawaii Supreme Court | No. 29083 :
1 THE SUPREME COURT OF THE STATE OF Hwa}
EOMUND M. ABORDO, Petitioner,
vs,
Ls36 HY oefudt we
COURT DOCUMENTS CLERK OF THE CIRCUIT COURT oF alHE
FIRST CIRCUIT and THE HONORABLE DERRICK M. CHAN,
JUDGE OF THE CIRCUIT COURT OF THE
FIRST CIRCUIT, STATE OF HAWAI'I, Respondents.
ORIGINAL PROCEEDING
(5.P.P, NO. 07-1-0044 and S.P.P. NO, 07-1-0049)
ORDER
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ., and
Circuit Judge Crandall, in place of Acoba, J., recused)
Upon consideration of petitioner Edmund M. Abordo’s
petition for a writ of mandamus and the papers in support, it
appears that petitioner's claim against the circuit court
documents clerk is moot inasmuch as petitioner's motions
received by the documents clerk on February 14, 2008 -~ were
filed on April 15, 2008 and April 16, 2008 and entered on the
dockets of S.P.P. No. 071-0044 and S.P.P. No. 07-1-0049.
It further appears that petitioner is not entitled to
mandamus relief against the respondent judge inasmuch as
petitioner can appeal from a final judgment disposing of S.2.P.
No. 07-1-0049 and petitioner will have a renedy by way of appeal.
See Kena v. Gaddis, 91 Hawai'i 200, 204, 962 P.2d 334, 338 (1999)
(A writ of mandamus is an extraordinary renedy that will not
issue unless the petitioner denonstrates a clear and indisputable
right to relief and a lack of other means to redress adequately
the alleged wrong or obtain the requested action. Such writs are
aaws
not intended to serve as legal remedies in lieu of normal
appellate procedures.). Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall process the petition for writ of mandamus without
payment of the filing fee
IT 1S FURTHER ORDERED that the petition for writ of
mandamus is (1) denied as moot as to the relief sought against
the respondent first circuit court documents clerk and (2) denied
2s to the relief sought against the respondent judge.
TT 1S FINALLY ORDERED that the respondent first circuit
court documents clerk shall forthwith serve petitioner with file-
stamped copies of (1) the “Motion to Exercise My Constitutional
Right to File a State Habeas Corpus Under HRS § 660-3.5 and Under
Art. 1, § 9, cl(2) of the United States Constitution” filed on
April 18, 2008 in $.P.P. No. 07-1-0049, and (2) the “Motion to
Reinstate Petitioner's HRPP Rule 40" filed on April 16, 2008 in
S.P.P. No. 07-1-0044.
DATED: Honolulu, Hawai'i, april 30, 2008.
ERR nse
sects Osan Lem
Cane, Outi
Vigna tea Cttnddell
| 0041e2460d7945f2d3c11be88f3964bb05a15737c15ff511bd74f22b9f8d6fe1 | 2008-04-30T00:00:00Z |
bd4f7fcc-626a-45fd-a443-2b3ad6838931 | Gillan v. Government Employees Insurance Company | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26075 3
IN THE SUPREME COURT OF THE STATE OF HAWAIEGS
MARGRET GILLAN and HOWARD KELLER, M.D.,Z5I¢ OS =
Pisintitfs-appetiees-retitioners, EAB P=
GOVERNMENT EMPLOYEES INSURANCE COMPANY,
Defendant-Appellant-Respondent,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; OE
PARTNERSHIPS 1-10; ROE NON-PROFIT CORPORATIONS 1-107 and ROE
GOVERNMENTAL ENTITIES 1-10, Defendants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 05-1-0650-04)
RDER ACCEPT: JICATION FOR wi CERTIORARI
(By: Levinson, J., for the court)
Upon consideration of the application for writ of
certiorari filed on May 15, 2008 by the plaintiffs-appellees-
petitioners Margret Gillan and Howard Keller, M.D., the
application is hereby accepted.
IT IS ORDERED that oral arguments shall be conducted in
this case, The parties will be notified by the appellate clerk
regarding scheduling.
DATED: Honolulu, Hawai'i, June 23, 200%
FOR THE COURT:
1 considered by: Moon, C.¥., Levinson,
Nakayana, Acobs, 99., and Cizcust
udge Lee, in place of Duffy, 2.) recused.
Roy K.S. Chang and
Harvey M. Demetrakepoulos,
for the plaintiffs-appellees-petitioners
Margret Gillan and Howard Keller, M.D.,
on the application
Kathy K. Higham,
for the defendant-appellant-respondent
Government Employees Insurance Company,
on the response
| c600853af197c3b7d5dcd16d429d3f485bc5702d99ff5b55016321d94da87af4 | 2008-06-23T00:00:00Z |
15058489-b4f8-43ef-a3d8-6c01432780e8 | Valenzona v. Carlisle | null | null | hawaii | Hawaii Supreme Court | Law upRar
No. 26999
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
KEITH K. VALENZONA, Petitioner/Plaintiff-Appellant
vs.
PETER B. CARLISLE individually and as Prosecuting Attorney for
the City and County of Honolulu; JAMES M. ANDERSON, DONN FUDO,
ALEXA D.M. FUJISE, MIRIAM P. LOUI, DANE R. McARTHUR, CAROLINE M.
MEE, SUZANNA L. TIAPULA, DEAN K. YOUNG, individually and as
Deputy Prosecuting Attorneys of the City ‘and County of Honolulu:
TAY DEERING and ANTHONY SAGUN, individually and as Honolulu
Police Department police officers, and CITY AND COUNTY OF
HONOLULU, @ municipal ‘corporation,
Respondents /Defendants-Appellees
aad
CERTIORARI TO THE INTERMEDIATE COURT OF APP!
(crv. No. 01-1-3661)
2:2 Wd ZI AVH ODOC
(By: Duffy, J., for the court®
and Acoba, J-, dissenting)
Petitioner/Plaintiff-Appellant Keith K. Valenzona’s
application for a writ of certiorari, filed on April 9, 2008, is
hereby rejected.
DATED: Honolulu, Hawai'i, May 12, 2008.
nt
ror tHe cous;
{< ox,
Yorn «abou gh 4 Me
Associate Justice
Earle A, Partington
for petitioner /plaintits-
appellant on the application
* considered &:
Hoon, C.J. lievingon, Nakayama, Acobs, and Duffy, 09.
| 6f91044fa7b79d03466b5bf58526c784edc69844b0e9a8c763a822cc3f9b1171 | 2008-05-12T00:00:00Z |
ff4d77b2-d407-4f1a-b8fb-ebc3e2f02b96 | Tierney v. Oahu Community Correctional Center | null | 29206 | hawaii | Hawaii Supreme Court | no. 29206
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MICHAEL C. TIERNEY, Petitioner,
ORIGINAL PROCEEDING
SS-O1hY EZ Nae auoe!
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Michael Tierney’s letter to the
supreme court, which is dened a petition for a writ of mandamus,
At appears that petitioner fails to demonstrate that he sought
and was denied relief from the director of public safety.
Therefore, petitioner is not entitled to mandamus relief. See
In Re Disciplinary Bd, of Hawaii Supreme Court, 91 Hawai'l 363,
368, 984 P.2d 688, 693 (1999) (Mandamus relief is available to
compel an official to perform a duty allegedly owed to an
individual only if the individual's claim is clear and certain,
the official's duty is ministerial and so plainly prescribed as
to be free from doubt, and no other remedy is available.).
Accordingly,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall file petitioner's letter as a petition for a writ of
mandamus without payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
mandamus is denied without prejudice to petitioner seeking relief
from the director of public safety.
DATED: Honolulu, Hawai'i, June 23, 2008.
Pree,
DoribcLomiaon
Bretes GSRaeliig Ore
CoS
Dadi «
oats
| 52cf6f969087b427f38d6f8c92e8ec155e774791fee9575ff6b7713f97065851 | 2008-06-23T00:00:00Z |
88069b6e-5da4-4340-907f-f3ce643a7535 | Rutledge v. Department of Public Safety, State of Hawaii | null | null | hawaii | Hawaii Supreme Court | no. 29200
IN THE SUPREME COURT OF THE STATE OF HANAI'I
LINCOLN RUTLEDGE, Petitioner, 3
DEPARTMENT OF PUBLIC SAFETY, =
STATE OF HAWAI'I, Respondent. °
ORIGINAL PROCEEDING 2
s
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Lincoln Rutledge's letter to the
supreme court, which is deemed a petition for a writ of habeas
corpus, it appears that habeas corpus relief is available to
petitioner in the circuit court and petitioner presents no
special reason for invoking the supreme court’s original
jurisdiction. See Oi2i v. Chang, $7 Haw. S11, $12, $87 P.2d 787,
788 (1976). Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall file petitioner's letter as a petition for a writ of
habeas corpus without payment of the filing fee.
IT IS FURTHER ORDERED that petition for a writ of
habeas corpus is denied without prejudice to seeking habeas
corpus relief in the circuit court.
DATED: Honolulu, Hawai'i, dune 13, 2008,
oats
| d446cc32e476b5094f832f0c83cd33dd8b14f8ac62416f191c443a9ebfa3c80f | 2008-06-13T00:00:00Z |
9b3e2cce-dcb3-41b9-b9b2-e2d1d7bac0d6 | Guajardo v. AIG Hawaii Insurance Company. Concurring Opinion by J. Acoba [pdf]. ICA s.d.o., filed 10/25/2007 [pdf], 116 Haw. 72. S.Ct. Order Accepting Application for Writ of Certiorari, filed 03/19/2008 [pdf]. | 118 Haw. 196 | null | hawaii | Hawaii Supreme Court | LAW LISRARY
12** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000"
BANG JA GUAJARDO and RICHARD GUAJARDO,
Plaint iffs-Appellants/Cross-Appellees-Petitioners,
vs.
AIG HAWAII INSURANCE COMPANY, INC., 9]
Defendant-Appellee/Cross
iar 02
No. 27893
CERTIORARI TO THE INTERMEDIATE COURT OF APP:
(CIV. NO, 03-1-1981-03)
C06 HY 8.
JULY 8, 2008
MooN, C.J., LEVINSON, NAKAYAMA, AND DUFFY, JJ.,
AND ACOBA, J., CONCURRING’ SEPARATELY
OPINION OF THE COURT BY LEVINSON, J.
on February 11, 2008, the plaintiffs-appellants/cross~
appellees-petitioners Bang Ja Guajardo (Mrs. Guajardo) and
Richard Guajardo (Mr. Guajardo) (collectively, the Guajardos)
filed an application for a writ of certiorari, urging this court
to review the summary disposition order (S00) of the Intermediate
Court of Appeals (ICA) in Guajardo v, AIG Hawaii Insurance co,
No. 27893 (Hawai'i Ct. App. Oct. 25, 2007). They argue that the
Ica gravely erred in concluding (1) that the defendant-
appellee/cross-appellant-respondent AIG Hawaii Insurance Coapany,
Inc. (AIG) did not definitely deny the Guajardos’ request for
consent to their settlement with the third-party tortfeasor, Gary
Senaga (Senaga), who injured Mrs. Guajardo, (2) that the first
circuit court, the Honorable Bert I. Ayabe presiding, correctly
aa
+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
ruled that AIG did not misrepresent the terms of its insurance
policy to them in response to their claim for underinsured
motorist (UIM) benefits, (3) that, even if AIG misrepresented the
terns of the policy, the misrepresentation did not prejudice the
Guajardos, (4) that AIG was not subject to a duty to conduct an
independent investigation into Senaga’s assets, (5) that the
circuit court correctly granted summary judgment in favor of AIG,
because the ICA misstated the standard of review of sunmary
judgments and because the reasonableness of AIG’s handling of the
Guajardos’ claim remains a genuine issue of material fact, and
(6) that the circuit court correctly declined to grant the
Guajardos’ request to conduct further discovery pursuant to
Hawai'i Rules of Civil Procedure (HRCP) Rule S6(f).?
We hold that the ICA erred in affirming the circuit
court's grant of partial summary judgment in AIG's favor and
against the Guajardos with respect to the Guajardos’ bad faith
claim and in concluding, as a matter of law, that any
unreasonable interpretation of the Guajardos’ policy by AIG did
not prejudice them. Accordingly, we vacate the circuit court's
judgment and remand this case to the circuit court for further
proceedings consistent with this opinion.
WRCP Rule 56
provides in relevant part
Should it appear from the affidavits of a party opposing the
motion that the party cannot for reasons stated present by
Bfficavit facts essential to Justify che party’s opposition, the
court may refuse the application for judgnent of may order a
Continuance to permit affidavits to be obtained or depositions to
Be'eaken or discovery to be had or may make such other order as is
just
{1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
1. BACKGROUND
®. Eagtual Backaround
on May 23, 2002, Mrs. Guajardo was crossing Channel
Street near its intersection with Ala Moana Boulevard when she
was struck by a van driven by Senaga. As a result of the
accident, Mrs. Guajardo suffered a “severe lower extremity
injury.” On the date of the injury, the Guajardos were insured
for $100,000.00 in UIM coverage through AIG, and Senaga was
insured for $100,000.00 in Liability coverage through Progressive
Insurance Company (Progressive).
on July 29, 2003, Mes. Guajardo’s counsel, Tan L.
Mattoch, wrote to AIG's litigation manager, Jeffrey Foss,
advising Ross of Mrs. Guajardo’s intention to make a UIM claim
against her AIG automotive insurance policy. Mattoch stated that
Senaga possessed $100,000.00 in bodily injury liability (B1)
coverage with Progressive and noted that Progressive anticipated
tendering the full $100, 000,00 in liabiiity coverage. The letter
advised Ross that, although Senaga vas an attorney, he was also
divorced, Living with his parents, and without any major assets.
The letter also requested that AIG determine whether it would
consent to the underlying BI settlement.
on the following day, July 30, 2003, Ross responded
thusly:
Thank you for your letter dated July 29, 2003
Elie soe youg client's biw claim, sss Nevertheless
Sects her BY claim wich. c's Senage’y inevrance
Gserise. Aa you nave indicated in your letter =
Senaga is a deputy attorney general living at hone
With his parents. fe certainly earns a geod salary
‘+8 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
and has Linited living expenses. on that basis we
Wit poe consent to the Bf settienent since even
Though ne may not Have tangible assets he certainly
has future income to pay any excess judgement against
} client desizes to make 2 UIM claim it
ary for her to obtain Judgment against
« Senaga to protect our subrogation rights 35
feguired under her policy. 1 should advise you (that)
this iseve hae Cone up several tines in the past on
Sther cases and ie making ite way to the Hawes (1S
Supreme Court. At some point they will set the
Standerd by which consent must be given to settle « BT
Claim, Right now we only have Zavior ¥. GEiCOl, 90
Hawai'i 302, 978 P.24 740 (1993),) as the case Jaw on
this subject and the Hawai (‘li Supreme Court
Eleaely recognized s carrier's right to protect its
subrogation
on July 31, 2003, Mattoch wrote to Ross informing hin
that Mrs. Guajardo had sent an assets questionnaire to Senaga.
He added that, “[olbviously, AIG's present position prevents Mrs.
Guajardo from doing anything to resolve the third-party clain and
to pursue her claim for first-party BI insurance.” As an
alternative, Mattoch proposed that AIG could “buy” the BY claim,
land he concluded by enphasizing that “[Mrs. Guajardo) did not pay
her UIM premium to be saddled with AIG's collection efforts.”
On August 4, 2003, Ross responded by letter to Mattoch,
again suggesting that he review Taylor specifically for the
proposition that “a policy's consent to settle provision
tperform[s] the crucial function of protecting a UIM carrier's
potential subrogation interests.’” (Quoting Zavlor, 90 Hawai't
at 310, 978 P.2d at 748.) Ross stated that he would be “nore
than willing” to work with Senaga through his attorney to
determine the extent of his wealth, but that without those facts
they could not make an informed decision regarding whether to
settle the BI claim, and therefore AIG was “unable to either give
+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
or decline” its consent at that time, Finally, Ross noted that
he was unaware of any case law that would require AIG to “buy”
Mes. Guajardo’s claim and asserted that such an act would
“severely prejudice” AIG's subrogation interests because Mrs.
Guajardo would then have “absolutely no incentive to cooperate
with [AIG] during the litigation against (Senaga].”
7, 2003, Mattoch wrote to Ross that, “[iln the instance of
on August
‘buying’ out my client’s [BI] claim, we would happily sign an
agreement pledging full cooperation during the course of
Litigation against [Senaga].” Mattoch added that, “when you see
the answers to the [asset questionnaire] submitted by .
Senaga, you will realize that he has no present capacity which
would justify refusal to consent to the settlement.” (Emphasis in
original.)
On August 13, 2003, Mattoch submitted a denand for
tender of Mra. Guajardo’s UIM benefits to AIG through Ross. The
letter included a description of the accident and a summary of
the relevant medical care.
On August 14, 2003, Ross wrote to Mattoch and
highlighted Part C of Mrs. Guajardo’s policy, which reads: “We
will pay under this coverage only after the limits of liability
under any applicable (BI) liability bonds or policies have been
exhausted by payment of judgments or settlements.” Ross noted
that, in light of this provision, Mrs. Guajardo's demand for UIM
benefits was premature because the underlying BI claim had not
settled. Ross reiterated AIG’s position with regard to Senaga’s
earning potential, estimating that “he earns in the neighborhood
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
of $70,000.00 to $80,000.00 per year with . . . (minimal) living
expenses.” Ross again asserted AIG's right to protect its
subrogation
terest as follow:
Ie was... Senaga who made the decision to only
Garry. $100,000.00 in’ (B1] coverage. For that reason
Nie will not give ite consent. for your client to
Settle (tire. Guajardo's BI) claim. Should she release
Senaga from any further obligations in this
iter AIG will deny UIM coverage for this accident
for violating the policy conditions.
T'would sise note that despite your contentions
that Liability is clear the police report shows srs.
Guajardo as jaywalking at the tine of the aceiaent. I
understand her story is different than what's depicted
on the police report(s) nowever{,] there 18 a question
SF ince'as to how the accident ocurred which may have
fo be decided by a jury in this case.
on August 18, 2003, Mattoch sent Ross an opinion letter
outlining the parties’ respective positions. On August 19, 2003,
Ross responded to Mattoch and claimed that, under Taylor, consent
to settle provisions were valid in Hawai'i and that an insurance
carrier had a right to protect its UIM subrogation rights.? Ress
further noted that no Hawai'i law or case required AIG to
purchase the BI claim. He concluded that, “{uJntil the Supreme
Court so rules{,] AIG will not agree to advance any money to your
client which may be offered by . . . Senaga’s carrier.”
on Septenber 8, 2003, Mattoch wrote to Ross asking
whether AIG, following the Guajardos securing 2 judgment against
Senaga, would consent to settle, cover the costs of such action,
and/or pay the Guajardos’ attorney's fees, Mattoch cited Best
2 ie note, as the Guajardos did briefly in their application, that the OTH
section of the policy aid not contain a consent to settle clause. We believe
that this court's analysie in Zaylox, which involved a consent to settle
Clouse, is nevertheles® instructive, because, as AIG correctly pointed cut in
fee Iniciar letter co the Guajardos, 2 prinary consideration in Taylor was
that an ingurer ig allowed to protect its subrogation rights, 30 Mawatl at
510, 918 P.2a at 748.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
Place, Inc, v, Penn Bm. Ins. Cow, 82 Hawai'i 120, 920 F.2d 334
(1996), seemingly to assert that the case required AIG to take
the foregoing actions if the Guajardos obtained the judgment.
In a response letter of the same date, September 8, 2003, Ross
notified Mattoch that AIG would not cover the expenses incurred
in the action against Senaga, nor would it pay Mrs. Guajardo’s
attorney's fees.
on September 12, 2003, Progressive wrote to Mattoch
informing him that Progressive had tendered Senaga’s $100,000.00
BI liability policy. Progressive added that “[iJt is expressly
understeod that by tendering these limits our insured{,] . . .
Senaga, is released in full from any and all claims known and
unknown.” On the same day, Mattoch forwarded Progressive! s
tender offer to Ross and enclosed a report by an economist,
‘Thomas Loudat, Ph.D., which estimated Senaga’s annual residual
income to be $22,084.00, Mattoch also enclosed a copy of a
complaint against AIG, which he claimed would be filed unless “we
receive the consent by AIG to accept the $100,000.00 tender or
AIG's agreement to buy out the underlying third-party claim no
later than . . . September 16, 2003.”
on September 29, 2003, AIG's counsel, Jonathan Steiner,
outlined AIG’s position in a fax to Mattoch that was also sent by
mail to Senaga and Progressive. Steiner noted, inter alia, that
although the court in Lambert v, State Farm Mut, Auto, Ing. Co,
5876 So. 24 160 (Ala. 1991), and numerous courts in other
jurisdictions required an insurer in AIG’s position to “buy” the
insured’s claim, such a legal requirement was not recognized by
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
Taylor or any other Hawai'i case or statute. He stated: “AIG
would not withhold consent to a settlement which preserves its
right of subrogation against . . . Senaga. By way . . . of this
letter to. . . Senaga and Progressive, AIG hereby proposes this
as a possible solution to. . . this situation.” He added that,
in the alternative, AIG was willing to explore other options in
an effort to resolve the matter, including a possible global
mediation of the BI claim, the UIM claim, and AIG's subrogation
rights against Senaga.
Between October 2, 2003 and January 7, 2004, the
Guajardos and AIG continued to exchange correspondence regarding
their respective positions. In his January 7, 2004 fax to
Steiner, Mattoch stated:
You have advised me that AIG has declined . . . [the]
offer [of mediation) a2 there would be no guarantee)
that mediation would be successful. Accoraingly, AIG
has rejected our last offer to resolve this matter and
CSeeinges te insist that the Gusjardos file suse
against... Senaga and pursue this claim to judgment
ae*the ‘clajataos' cost, ss Senaga’s inevrance
Company’ tender of his (Bi) Limite notwithstanding.
‘Me are now considering all options in light of
‘the Guajardes’ present financial position.
on January 7, 2004, the Guajardos executed a release of
their claims against Senaga in exchange for Senaga’s $100,000.00
BI Liability policy Limit with Progressive. On January 20, 2004,
Mattoch wrote to Steiner to inform him of the Guajardos’
settlement with Senaga. Mattoch also discussed the recent ruling
of the circuit court of the first circuit, the Honorable Gary
W.B, Chang presiding, in Melo vy. AIG, Civil No. 02-1-0676 (1st
cir. Haw. Feb 11, 2003), in which, in a similar UIM case
involving AIG, the court applied State Farm Fire and Cas, Co, ve
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Pacific Rent-All, Inc., 90 Hawai‘i 315, 978 P.2d 753 (1999),? in
concluding that the insured was entitled to settle the BI clain
without AIG's consent because there was no consent to settle
clause in the policy and that, if AIG wished to pursue its
subrogation rights against the tortfeasor, it would be required
to assume the responsibilities of prosecuting the BI action.
Mattech queried whether, “within the context of Judge Chang's
ruling,” AIG would now pay its UIM claim or, in the alternative,
agree to enter into arbitration.
on January 26, 2004 Steiner responded to Mattoch by
fax, declining his offer of arbitration. He asserted that “[i]t
is AIG's position that, notwithstanding Judge Chang’s ruling(,
« settlement and release of all claims against . . . Senaga
has prejudiced AIG’s subrogation rights, and for that reason,
your client is not entitled to UIM benefits.”
B. Procedural Backaround
on October 1, 2003, the Guajardos filed a complaint in
the first circuit court against AIG for (1) a judgment declaring
that AIG had an obligation to provide them UIM benefits under
2 tn pacific Rent-All, this court held that,
in the context of fire and casualty insurance, if the insurer
proves (1) that the tortfeasor had actual or constructive
Knowledge of the insurer's subrogation right of reimbursement oF
that the tertéesscr and insured colloded a destroy the insurer's
Subrogation right and (2) that the insurer's subrogation right of
Feinbursenent is actually prejudiced by the insured’s release of
the tortfeasor, then the insurer say maintain a subrogation action
against the tortfeasor, In other words, the insured's release of
the tortfeasor will not affect the insurer's susrogation right of
Feinbursenent when the tortfeascr acts ineqsitably and causes
actual prejudice to the insurer.
90 Mawai't at 330, 978 P.2d at 768
‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
their policy, (2) tortious breach of the implied covenant of good
faith and fair dealing, and (3) punitive damages stemming from
AIG’s alleged bad faith.
on March 15, 2004, the Guajardos filed a motion for
partial summary judgment as to the claim for declaratory relief
on July 12, 2004, AIG f1led a motion for partial sunmary judgment
as to the Guajardos’ bad faith and punitive damages claims.
on October 6, 2004, the eizeuit court conducted @ joint
hearing on the two motions; by orders dated January 14, 2005, the
circuit court granted both motions. In granting the Guajardos’
motion, the circuit court ruled that AIG must provide the
Guajardos with UIM benefits under the terms of the insurance
policy. The circuit court also determined, citing Racitic Rent=
ALL, that even though the Guajardos had re
yed Senaga from all
clains in their settlenent, AIG's subrogation rights were not
prejudiced because Senaga and Progressive were on notice of the
potential subrogation rights. In granting AIG’s motion, the
circuit court concluded that AIG was not acting in bad faith,
because it was unclear at the time whether Pacific Rent-All
applied to the matter at hand. On March 6, 2006, the circuit
court entered its final judgment. On April 18, 2006, the circuit
court entered its amended final judgment.
on April 20, 2006, the Guajardos filed a notice of
appeal and, in their opening brief, asserted that the circuit
court erred in granting AIG's motion for partial summary
judgment. On October 25, 2007, the ICA affirmed the amended
final judgment of the circuit court by summary disposition order.
10
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER +
TcA's SDO at 8. ‘The ICA held in relevant part that (1) the
circuit court did not err by finding that AIG withheld the
Guajardos UIM benefits in good faith, (2) the circuit court aid
not exr by granting AIG's motion for partial summary judgment
because “the law was clear regarding the issues in AIG's motion
and, hence, there was no genuine issue of material fact,” and (3)
the circuit court did not abuse its discretion by denying the
Guajardos’ request for additional time to conduct discovery.
ICA's SD0 at 6-7. The judgment of the ICA was entered on
Noverber 14, 2007.
on February 11, 2008, the Guajardos filed a timely
application for a writ of certiorari.
IX. STANDARDS OF REVIEW
Application for A Writ Of Certiorart
‘The acceptance or rejection of an application for a
writ of certiorari is discretionary. Hawai'i Revised Statutes
(HRS) § 602-59 (a) (Supp. 2007). In deciding whether to grant the
application, this court considers whether the ICA’s decision
reflects “(1) [g]rave errors of law or of fact{] or (2) [o}bvious
inconsistencies . . . with (decisions) of th{is) court, federal
decisions, or [the ICA's] own decision(s]” and whether “the
magnitude of those errors or inconsistencies dictat les] the need
for further appeal.” HRS $ 602-59(b).
5. Motion For Summary Judgment
‘The grant or denial of sumary judgment is reviewed de
nove. State ex. rel, Anzai v, City and County of Honolulu, 99
un
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Hawai'i 508, 515, 57 P.3d 433, 440 (2002); Bitney v. Ho
Police Dep't, 96 Hawai'i 243, 250, 30 P.3d 257, 264 (2001)
Surmary judgment 4a appropriate Af the pleadings,
Gepositions, anawers to interrogatories,
iGeissions cn file, together wich the affigavits, if
Sny, show that there is no genuine issue as to 2ny
Raterial fact and that the moving party ie entitled to
Suagnent ass matter of law. A fact iz meterial if
proof of that fact would have the effect of
Establishing of refuting one of the essential elements
of a cause of action or defense asserted by the
pareies. the evidence must be viewed in the 1ight
Rost favorable co the ron-noving party. In other
Words, we must view all of the evidence and inferences
Grown’ therefrom in the Light most favorable to the
party opposing the motion:
Kahale v. City and County of Honolulu, 104 Hawai'i 341, 344, 90
P.3d 233, 236 (2004) (brackets and citation omitted).
C. Interpretation Of Insurance Policies
In interpreting insurance policies, this court has
stated that:
[T)nsurers have the sane rights as individuals to
Limit their Liability and to impose whatever
conditions they please on their obligation, provided
they aze notin Contravention of statutory inhibitions
or public policy. As such, insurance policies are
Subsect to the general rules of contract construction;
the terns of the policy should be interpreted
according to their plain, ordinary, and accepted sense
in common speech unless it appears from the policy
that a different meaning is intended. Moreover, every
insurance contract shall be construed according to ehe
entirety of its terms and conditions as set forth in
the policy.
Nevertheless, adherence to the plein language
and Literal meaning of insurance contract provisions
if'not without limitation, We have acknowledged that
because insurance policies are contracts of adhesion
and are prenised on standard forms prepared by the
insurer's attorneys, we have long subscribed to the
principle that they must be construed liberally in
favor of the insured and any ambiguities must be
Fesolved against the insurer. Put another way, the
Fule is that policies are to be construed in accord
With the reasonable expectations of a layperson.
12
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Dairy Rd. Fartners v. Island ins. Co., 92 Hawai'i 398, 411-12,
992 P.2d 93, 106-07 (2000) (citations, quotation marks, and
brackets omitted) .
TIT. puscusston
A. ‘The IGA Erred In Affirming The Circuit Court’s Grant of
AlGs Motion For Summary Judament On The Grounds That
ere Were No Genuine Issues Of Materia: Fact asta
Be
‘The Guajardos claim that the ICA gravely erred in
concluding that “AIG did not misrepresent to the Guajardos that
their policy required them to pursue Senaga to judgment to
protect AIG’s subrogation rights.” ICA’s SDO at 6. The relevant
portions of AIG’s auto insurance policy are as follows:
Part C- Underinsured Motorist Coverage (Bodily Injury
oniy
We will pay compensatory damages which on
Angured 15 legally entitled to recover from the owner
‘or operator of an underinsured motor vehicle because
Of Beaily. intuey!
Y. Sustained by an insured; and
2! Causea by an accident
‘The owner's or operator's liability for
compensatory damages must arise out of the onnership,
maintenance or use of the yuderingured gator vehicle.
We will pay under this coverage only after the
Limite of Liability under any applicable bodily injury
Liability bonds or policies nave been exhausted BY
Part G* General Provisions
OUR RIGHT TO RECOVER PAYMENT
1£ we make a payment under this policy and the
person to'or for whom paynent eae nade hag a Fight to
Fecover danages from another ve shall be subrogated to
that right That person shall do
Whatever is necessary to enable us to
exercise oor rights; and
3° Noni
B
‘#** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
(Some emphases added and some in original.)
‘The Guajardos argue that “AIG's assertion that its
. policy required the Guajardos to pursue . . . Senaga to
judgment to protect AIG's subrogation rights, in lieu of
accepting a policy limite BI settlement, is a blatant falsehood
because the insurance policy contains no such provision.” In
response, AIG claims that it correctly represented its policy
because
‘the [policy] gave AIG the right to pursue
Subrogation clsim against a tortfeasor and requires
that (the Guagardos| do nothing to prejudice that
Fight. Information initially provided ATG justified a
good faith belief that a realistic possibility existed
(ehat} Senaga could satisfy a. . .. judgment AIG might
cure were it to pay UIM Benefita to (the Guajardos}
AIG also argues that it never denied the possibility of a
settlement but instead, in its first response to the Guajardos,
offered an “initial, non-binding decision.”
The parties’ arguments require construction of the
policy’s language to determine its meaning. This court has held
that “*[ilnsurance policies are subject to the general rules of
contract construction; the terms of the policy should be
interpreted according to their plain, ordinary, and accepted
sense in common speech unless it appears from the policy that a
different meaning is intended.’ Dairy Bd, 92 Hawai'i at 411,
992 P.2d at 106 (quoting First Ins, Co. of Hawaii, Inc. v, State,
66 Haw. 413, 423-24, 665 P.2d 648, 655 (1983)) (brackets omitted) .
Moreover, “[elvery insurance contract shall be construed
according to the entirety of its terms and conditions as set
forth in the policy . . . .” MRS § 431:10-237 (2005); see also
State Farm Mut, Auto. Ins. Co. v. Fermahin, 73 Haw. $52, $56, 836
ua
1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
P.2d 1074, 1077 (1992); Smith vs New England Mut, Life Ina. Cow,
72 Haw. $31, 534, 627 P.2d 635, 636 (1992). This court does not,
however, apply @ mechanistic reading of insurance contracts; it
has instead adhered to the proposition that, “*{blecause
Angurance policies are contracts of adhesion and are premised on
standard forms prepared by the insurer’s attorneys, . . . they
must be construed liberally in favor of the insured and [any]
” Allstate
Ins. Co. vs Ponce, 105 Hawai'i 445, 457, 99 P.3d 96, 108 (2004)
(quoting Sturla, Inc. v. Fireman's Fund ins, Co., 67 Haw. 203,
209, 684 P.2d 960, 964 (1984)) (brackets in original) (emphasis
ambiguities [must be] resolved against the insurer.
omitted). In other words, “tthe rule is that policies are to be
construed in accord with the reasonable expectations of a
layperson.’" Id, at 458, 99 P.3d at 109 (quoting Sturla, 67 Haw.
at 209, 684 P.2d at 964).
A conmonsense reading of the relevant parts of AIG's
policy demonstrates that AIG contracted to “pay under (the UIM)
coverage” once the underinsured tortfeasor’s BI limits had been
exhausted “by payment of judgments or settlements.” Furthermore,
under Part G, if AIG makes a payment under the policy to a person
who “has a right to recover damages from another[, AIG) will be
subrogated to that right,” and that person “shall do nothing
after loss to prejudice [AIG]." Thus, the question is whether
the interpretation of the policy that AIG communicated to the
Guajardos was unreasonable, rising to the level of bad faith.
‘This court has held that
there is legal duty, implied in 2 first~ and
third-party insurance contract, that the inauver must
act in good faith in dealing with ite insured, anda
45
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breach of that auty of good faith gives rise to an
Independant core cause of action, The breach of the
sxprese covenant to pay elaina, however, 1s not the
ine gua gun for an sction for breach of the implied
Ebvenane Bf good fastn and fair dealing
Acodaca), 7120 F-24"[865,1. 573 {(Ariz. 130611. "The
iRpited covenant is breached, whether the carrier pays
the claim cr not, then ita conduct damages the very
protection or security which the insured sought to
Sein by buying insurance,” a
Best Place, #2 Hawai'l at 132, 920 P.2d at 346; see also Francis
ve Lee Enters., Inc., 89 Hawai'l 234, 238, 971 P.2d 707, 712
(1999) (*(Best Place] explained that an action for the tort of
‘bad faith’ will lie. . . when an insurance company unreasonably
handles or denies payment of a claim."). Best Place also held
that “conduct based on an interpretation of the insurance
contract that is ceascnable does not constitute bad faith.” 62
Hawai'i at 133, 920 P.2d at 347 (emphasis added).
In this case, we must look to AIG's “conduct” in light
of its interpretation of the policy, Id, The first
communication between Mattoch and Ross occurred by letter dated
July 29, 2003, in which Nattoch notified AIG of the accident,
gave a brief description of Senaga’s financial situation, and
requested that AIG “assign this matter for a consent to settle
determination.” Ross responded to Mattoch by letter dated
guly 30, 2003:
(ile nave established claim file for (the
Guajardos'] Ulm claim... , Nevertheless, we axe
Snabie to give our consani Zor your client tevaettle
herBiaigis wen -.. Senaga’s insurance cartier
Ae-you have indicated in your letter’. + Senege is @
depiey avterney general Living at hone with nis
parents. fe ‘ros a good salary and has
Uimtted Living expenses.
sonsent te the G1 settlenent aince even though he may
fot have tangibie assets he Gexeainiy has fueure
Incone to pay any excess judgment against hin.
Te youlr] client desires 9 make a UIM claim ss,
16
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againe
wee stataaa. fo Protect oor sonroyation nights al
(Emphases added.)
We note, as a preliminary matter, that the parties
disagree as to the substance of the position that AIG was
intending te communicate in Ross’s letter. The Guajardos claim
that the ICA gravely erred when it concluded that “AIG did not
definitely deny the settlement request before receiving
information regarding Senaga’s incone and assets; rather, AIG
merely withheld its consent to the settlement pending AIG's
receipt of such documentation.” ICA's SDO at 7. AIG argues, on
the other hand, that Mattoch “clearly understood” its July 30,
2003 letter to be advancing “an initial, non-binding decision”
and “an implicit request for additional information concerning
+ + + Senaga’s asset picture.” AIG attempts to buttress its
argunent by noting that, on the following day, Mattoch advised
AIG that he had prepared a financial questionnaire that he
planned to serve on Senaga.
‘The Guajardos and their counsel do not view the July
30, 2003 letter in the same light, and neither do we. A plain
reading of the letter seemingly leads to a single conclusion:
AIG was unequivocally withholding its consent to settle. AIG
ungualifiedly stated that it was “unable to give (its) consent”
and that it “{would) not consent to the BI settlement,”
suggesting no steps that the Guajardos could take, other than
“obtain[ing] judgment against . . . Senaga,” to alter AIG's
position. The letter is clear that AIG's denial of consent was
due to the fact that Senaga “certainly” earned a large salary and
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“certainly” had future income to pay any excess judgnent. The
letter flatly stated that “it will be necessary for (Mrs.
Guajardo] to obtain judgment against Senaga” in order for her to
vmake a UIM claim,” thereby foreclosing a settlement with Senaga
that preserved AIG's subrogation rights as an avenue to receiving
the requested UIM benefits.
AIG's argument that the Guajardos understood Ross's
July 30, 2003 letter as “an implicit request” for additional
information exudes disingenuousness. Nothing in Ross’s letter
evidenced any willingness to consider any course of action other
than the Guajardos pursuing Senaga to judgment. In light of
AIG's pronouncement in the letter that Senaga “certainly” had
future incone that could satisfy an excess judgment, one is hard
pressed to discern how AIG could simultaneously have been
“implicitly” requesting further information about Senaga,
inasmuch as AIG had already glinpsed into the future and foretold
his riches. Mattoch seconded this point in his July 31, 2003
response to Ross, in which, apart from unilaterally offering to
provide a sworn asset questionnaire from Senaga, he noted that,
“{olbvicusly, AIG's present position prevents Mrs. Guajardo from
doing anything to resolve the third-party claim and to pursue her
claim for first-party BI insurance. . . . Our client did not pay
her UIM premium to be saddled with AIG’s collection efforts.” In
Light of the unequivocal language of Ross's July 30, 2003 letter,
we agree with the Guajardos that the ICA erred in holding that
AIG “did not definitely deny the Guajardos’ settlement request
before receiving information regarding Senaga’s incone and
1s
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
assets.” ICR’s SDO at 7. See Black's Law Dictionary 466 (sth
ed. 2004) (“denial” means “[a] refusal or rejection”).
Accordingly, AIG definitively denied the Guajardos’ request for
consent to settle in Ross's July 30, 2003 letter.
The question becomes whether AIG's denial of the
Guajardos’ request was based on an unreasonable interpretation of
its policy. See Beat Place, @2 Hawai'i at 133, 920 P.2d at 347.
Ross's July 30, 2003 letter asserted that AIG could deny consent
to settle “[oJn (the] basis” that “(Senaga) certainly earns a
good salary and has limited Living expenses.” Nothing in the UIM
policy reserves AIG such a right. As stated in Part G of the
policy, in making a payment to the insured, AIG becones
subrogated to any right that the policy holder may have “against
another,” and the insured has a duty to “do. . . [nJothing after
loss to prejudice {AIG's subrogation rights].” Accordingly, the
policy affords AIG a single legitimate basis for denying consent
to settle, namely, the protection of its subrogation rights. tn
Ross's July 30, 2003 letter, AIG denied consent to settle, not
because it claimed that its subrogation rights were in imminent
jeopardy, a legitinate basis, but instead, essentially, because
it belleved that Senaga was financially secure. In that letter,
and in its azgument to this court, AIG invokes this court's
holding in Taylor =~ which recognized the legitimacy of the
objective of preserving an insurer’s subrogation rights -- as a
talisman to ward off any impugning of its conduct. However, an
imminent danger to AIG's subrogation rights was in no way
implicated by Mattoch’s July 29, 2003 letter, which asked only
19
‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
that AIG “make [its] determination in this matter by August 12,
2003.” More importantly, and crucial to the question whether AIG
unreasonably interpreted its insurance policy, neither Tavlor nor
AIG's own policy granted AIG the right to deny consent to settle
on the basis that the tortfeasor who injured its insured had
sufficient assets to allow AIG to recoup the UIM benefits owed to
the insured, Whether AIG could ultimately succeed in recouping
its own losses via pursuit of a legitimately preserved
subrogation claim was simply irrelevant to the discharge of its
duty to its insureds, namely, to consent to settlement unless its
terms jeopardized AIG’s prerogative to pursue subrogation, such
as by purporting to release the tortfeasor from any and all
future claims, which, prior to this court's holding in Granger ve
Gov't Emplovees Ins. Co., 111 Hawai'i 160, 140 P.3d 393 (2006),
would have the effect of dissolving the insurer's subrogation
rights. In the present case, the possibility of such a
settlement was not raised until September 12, 2003, when Mattoch
sent Ross a copy of Progressive’s settlement offer requiring
Senaga’s full release from any future claims.
Ross's July 30, 2003 letter further asserted that the
the Guajardos UIM policy “required” them “to obtain judgment
against . . . Senaga.” The Guajardos are correct that “the
insurance policy contains no such provision.” As discussed
supra, Part C of the policy states that UIM benefits would be
paid after the exhaustion of the tortfeasor’s BI policy limits
“by payment of judgments or settlements.” (Emphasis added.)
There is 2 genuine issue of material fact as to whether AIG's
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‘+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
interpretation of its on policy was “unreasonable” because it
undertook to eliminate an option that was plainly availsble to
the Guajardos at the time and that would ostensibly do “nothing
after loss to prejudice [AIG's] rights,” namely, to effect a
settlement with Progressive that would preserve AIG's subrogation
rights.‘ AIG conceded that such an option was available, albeit
two months later on September 29, 2003, when its counsel informed
the Guajardos by fax that “AIG would not withhold consent to a
settlement which preserves its right of subrogation against
Senaga. . . . AIG hereby proposes this as 2 possible solution to
< . this situation.”
AIG's interpretation of its UIM policy as requiring the
Guajardos to pursue Senaga to judgment was particularly onerous
in Light of its position, advanced in Ross's September 8, 2003
letter to the Guajardos, that it would not pay the Guajardos
attorney's £
8 even if they succeeded in obtaining the judgment
against Senaga that AIG was purporting to require as a
precondition to the payment of UIM benefits. In response to the
Guajardos’ September 8, 2003 letter suggesting that Best Place
required AIG to foot the bill, Ross stated that he did not
“recall anywhere in that decision which requires an insurer to
pay an insured’s attorney fees when they require an insured to
‘the Guajardos’ argunent that AIG, in withholding consent to settle, was
thereby required to “buy” their claim in order to protect its subrogation
Fights was not supported by this court's case law at the tine that the notions
for partial summary judgment were filed, this court subsequently validated
the Gusjardos" position, holding that a UIM insurer must,
tine. sy either (1) consent to the proposed settlenent ‘ee,
[the insured) the proposed settlement snount ‘and thereby assune the
position of [the insured)’s subrogee.” Granger, i] iM
St 401 emphases in original] «
wai't at 168, 140 F.3d
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++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
obtain judgment against a negligent tortfeasor." At that tine,
AIG was without this court's guidance in Granger, which
instructed that an insurer cannot “conscript [the insured] as its
‘vicarious plaintiff’ for the purpose of recovering, at
substantial cost, funds that (the insured} already paid [the
insurer] to b
underinsured injury.” 111 Hawai'i at 168, 140 P.3d at 401.
e the risk of providing in the event of an
Nevertheless, a requirement that the Guajardos pursue a
tortfeasor to judgment in order to obtain their UIM benefits was
nowhere recited in the policy and, as they have suggested in
their application, plainly put the Guajardos “between the
proverbial rock and a hard place.”
Bearing in mind that insurance policies must be
interpreted in accordance with the “reasonable expectations of a
layperson,” Dairy Bd, 92 Hawai'i at 412, 992 P.24 at 107
(citation omitted), we hold that there is a genuine issue of
material fact as to whether AIG’s interpretation of its UIM
policy was unreasonable, in bad faith, and in contravention of
one of the legislature's stated goals for UIM insurance, ie,
“providing speedy and adequate protection to persons injured in
motor vehicle accidents at the least possible cost.” ‘Taylor, 90
Hawai'i at 313 n.10, 978 P.2¢ at 751 n.10 (emphasis added) .
‘The Guajardos assert that the ICA gravely erred when it
affirmed the circuit court's entry of partial summary judgment on
the bad faith claim because “the law was clear regarding the
issues in AIG's motion and, hence, there were no genuine issues
of material fact.” ICA’s SD0 at 7. It is possible that the
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+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
ICA's reasoning mirrored the circuit court’s in placing
significant stock in AIG's argument that there was an open
question of law regarding the applicability of Pacific Rent-All,
90 Hawai'i 315, 978 P.2d 753, See also Enoka v, AIG Hawaii Ins.
Cou, 109 Hawai's 537, 552-53, 128 P.3d 850, 865-66 (2006)
(explaining that auto insurers do not act in bad faith when they
deny payment based on “an open question of law."). However, the
ICA’s holding rested on the faulty premise that Ross's July 30,
2003 letter did not deny consent to settle. Foss’s July 30, 2003
made no mention of an “open question of lew” as a basis for AIG’s
initial outright rejection of the possibility of a settlement,
and, in any event, genuine issues of material fact regarding the
reasonableness and good faith of AIG’s interpretation of its
policy remain, wholly separate and apart from the applicability
of the Pacific Rent-All case.
Summary judgment is appropriate, inter alia, only when
“there is no genuine issue as to any material fact.” Kahale, 104
Hawai'i at 344, 90 P.3d at 236, A reasonableness standard
governs bad faith clains. Best Place, 82 Hawai'i at 133, 920
P.2d at 347. This court has held that “[rJeasonableness can only
constitute 2 question of law suitable for summary judgment ‘when
the facts are undisputed and not fairly susceptible of divergent
inferences,’ because, ‘[wJhere, upon all the evidence, but one
inference may reasonably be drawn, there is no issue for the
jury.’” Courbat vy, Dahana Ranch, Inc., 111 Hawai'i 254, 263, 141
P.3d 427, 436 (2006) (quoting Anfac. Inc, ¥ Waikiki Beachcomber
Ine co., 74 Haw. 85, 108, 839 P.2d 10, 24 (1992))7 age also Trap
23
#0" FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
State Farm Mut, Auto, Ins. Co., 999 F. Supp. 1369, 1373
(D. Haw, 1998) (concluding that allegations of bad faith between
insurer and insured over fair dealing and meaning of policy were
“exactly the type of issue(s], under Best Place, that the jury
should consider, and one[s} that should not be made by the
court”), In the present case, we conclude that there are genuine
issues of material fact as to whether AIG breached its duty of
good faith by (1) denying consent to settle on the ground that
Senaga was financially secure and (2) unreasonably interpreting
its policy as requiring that the Guajardos pursue Senaga to
judgment as a precondition to receiving UIM benefits. See Best
Place, 62 Hawai'i at 133, 920 P.2d at 347 (an unreasonable
Interpretation of a policy constitutes bad faith); Louissana
Ins, Guar, Ass'n v, Interstate Fire « Cas, Co., 630 So, 24 759,
763 (La, 1994) ("An insurance policy should not be interpreted in
an unreasonable or a strained manner so as to enlarge ox to
restrict its provisions beyond what is reasonably contemplated by
its terms or so as to achieve an absurd conclusion.) (Emphasis
added.) (Citations omitted.) Accordingly, we hold that the ICA
erred in affirming the circuit court’s grant of partial summary
judgment on the Guajardos’ bad faith claim.
8. The ICA Erred tn Holding That Even If AIG Had
Misrepresented The Terms Of The Policy, The
Misrepresentation Woula Not Have Preiudiced The
Guaiardos.
‘The Guajardos next assert that the ICA gravely erred in
holding that, “even if AIG had misrepresented the terms of the
AIG policy, it would not have prejudiced the Guajardos.”
‘The ICA's holding appears to be that, notwithstanding any
24
+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
wrongful misrepresentation, the Guajardos, as a matter of law,
suffered no damages as a result. The extent of damages caused by
tortious conduct normally constitutes a question of fact. see
Mateuura v. £.1. du Pont de Nemours and Co., 102 Hawai'i. 149,
172, 73 P.3d 687, 710 (2003) (**{J]uries in actions at law have
historically determined issues of fact . . . and money damages in
particuler.’* (Quoting Housing Fin, & Dev, Corp, v. Ferguson, 91
Hawai'i 61, 90, 979 P.2d 1107, 1116 (1999).).
There is at least a genuine issue of material fact as
to whether AIG's persistent reliance on an unreasonable
interpretation of its UIM policy subsequently caused “an
unreasonable delay in payment of benefits [that] warrant [s]
recovery for compensatory damages." Best Place, 82 Hawai'i at
133, 920 P.2d at 347 (citations omitted). There is also a
genuine issue of material fact as to whether AIG's initial
refusal to consider a potentially available and expedient avenue
of resolving the Guajardos’ tort claim, namely, a settlement with
the tortfeasor that preserved AIG's subrogation rights, caused
the controversy to drag on far longer than necessary, thereby
inducing the Guajardos to incur both pre-lawsuit attorney’s fees
and loss of interest on principal. See Brandt v. Superior Court,
693 P.2d 796, 798 (Cal. 1985) (explaining that, “(w]hen an
insurer’s tortious conduct reasonably compels the insured to
retain an attorney to obtain the benefits due under a policy, it
follows that the insurer should be liable in a tort action for
that expense,” but that such fees do not include “those
attributable to the bringing of the bad faith action itself”);
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+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
cf. Janakis-Pico v, Cutter Dodge, Inc., 98 Hawai'i 303, 320, 47
P.3d 1222, 1233 (2002) ("[t]n order to maintain a claim for
relief grounded in fraud or deceit, the plaintiff must have
suffered substantial actual damage, not nominal or speculative.”
(Citation and emphasis omitted.)) Accordingly, we hold that the
ICA erred in concluding as a matter of law that any unreasonable
interpretation of the policy by AIG would not have prejudiced the
Guajardos.?
> the Guajardos’ further argue that the ICA erred in holding that “no
Hawat't law required AIG to conduct an independent investigation into Senaga’s
Sncone and assets.” Tn our view, it ie material whether the ICA erred or
not because its holding is inapposite, Taylor held that carriers are entitled
fo condition their consent to settle on the protection of their right of
Subrogation. 90 Hawai‘ at 312, 976 Pi2d at 149. In the face of a request
for consent to settie, Tavlor concluded that insurers are required co conduct
a reasonable investigation
[x)nasmach as an insurer must act in good faith . . . it aust have
a reasonable basis for its assertion that it is denying settlement
bases on the preservation of its subrogation interests. "If the
cartier denies the claims of its ingored without a good faith
{nvestigetion into its merits, or If the carrier does not conduct,
its Snvestigation inva reasonable tine,” (Allstate Ine. Co.
Eclpeavers, 611 80, 24 (348,] 351 ((als, 1992]; the cavesee may
Bot deny UIM benefits to thé insured.
Ade (citation and emphasis omitted). In this case, however, Ross's July 30,
2503 letter unequivocally reflected that Alo wae denying consent to settle ca
tthe illegitimate ground that Senaga was financially secure, Insofar as the
Genial of consent to settle was improper from the outset, any investigation
Fegarding Senaga’# financtal condition conducted by AIG, whether “reasonable”
of not, could not have cured its arguable bad faith. Accorsingly, the ICA's
hotaing regarding the requirement of an independent investigation is
Surplusage and therefore “inspposite.
26
‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
Iv. coNchusron
For the foregoing reasons, we vacate the circuit
court’s partial summary judgment in favor of AIG and against the
Guajardos with respect to the Guajardes’ bad faith claim, and
remand this case to the circuit court for further proceedings
consistent with this opinion.‘
Ian L. Mattoch and
Daniel P. Kirley,
for the plaintiffs-appellants/
cross-appellees-petitioners,
on the application ‘
Jonathan H. Steiner and
R. John Seibert,
for the defendant-appellee/ Nica Oeueicey0 roe
cross-appellant-respondent,
on the opposition to the 4
application © Pedi be
© tn Light of our vacating and zenanding this case, the Guajardos’ clain
that the Ick erred in affirming the circuit court's denial of the Gusjardos
ince kule S€(f) request for further discovery is moot, as the Guajardos are
now entitled to conduct further discovery.
20
| 3064d371f9ecc5024ad8ac233bbfd1846f1996d40423bc9e70265f988b07d8ce | 2008-07-08T00:00:00Z |
8a4fb80c-c095-4806-a447-f93ba755cc77 | State v. Kamanao. Dissenting Opinion by C.J. Moon [pdf]. Dissenting Opinion by J. Levinson [pdf]. ICA s.d.o., filed 12/13/2007 [pdf], 116 Haw. 238. S.Ct. Order Accepting Application for Writ of Certiorari, filed 03/06/2008 [pdf]. | 118 Haw. 210 | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
‘se4f0R PUBLICATION If WEST'S HANAI'I REPORTS AND PACIFIC REPORTER***
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
000:
STATE OF HAWAI'I, Respondent /Plaintiff-Appellee
ANDREW K, KAMANA'O, Petitioner/Defendant~Appellant
No. 28236
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 56708)
JOLY 23, 2008 5
aqaus
NAKAYAMA, ACOBA, AND DUFFY, JJ.; =
AND MOON, C.J., AND LEVINSON, J., DISSENTING!
Les ez
QBINION OF THE COURT BY ACOBA. J.
Petitioner/Defendant-Appellant Andrew K. Kamana‘o
(Petitioner) seeks review of the judgment of the Intermediate
Court of Appeals (the ICA) filed on January 3, 2008, pursuant to
its December 13, 2007 Summary Disposition Order (SD0)* affirming
the October 16, 2006 amended judgment of the first circuit court?
(the court) convicting Petitioner of two counts of rape in the
‘the S00 was issued by Presiding Judge Corinne K.A, Watanabe and
Associate Judges Daniel R. foley and Craig #. Nakamura.
= The Honorable Virginia Lea Crandall presided.
}FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS**
first degree, Hawai'i Revised Statutes (HRS) § 707-730(1) (a) (1)
(1985) (Counts VI and 1x); and one count of sodomy in the first
degree, HRS $ 707-733(1) (a) (i) (1985) (Count XI). The appeal to
the ICA was from the court's sentence of Petitioner to twenty
years of imprisonment for each count, with a mandatory minimum
term of five years on each count as a repeat offender, with the
terms of imprisonment for Counts IX and XI to run concurrently
with each other and consecutively to Count VI, with credit for
time served.”
We hold that the ICA did not gravely err in affirming
the court’s judgment because in Petitioner's case (1) under HRS
§ 706-606.5 (1985),‘ mandatory minimum sentences must be imposed
under specified conditions; (2) pursuant to HRS § 706-606.5, the
court may run mandatory minimum sentences consecutively for
multiple offenses; (3) mandatory minimum sentences imposed on
repeat offenders pursuant to HRS § 706-606.5 are part of
indeterminate maximum sentences; (4) HRS § 706-668 (Special
Pamphlet 1975)* requires that multiple sentences imposed by the
court shall be served concurrently; (5) HRS § 706-606.5 does not
conflict with HRS § 706-668 because the language of the latter
+ _AlL three terms were to run concurrently with any terms of
Amprisonnent imposed in Cr. No. 52291.
+ See intea note 7
+ oe intra note 9,
‘s*4P0R PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REPORTER®!
may be construed as prohibit
1g consecutive term sentencing where
multiple sentences of imprisonment are imposed at the same time,
except that in certain situations such as those contemplated by
the repeat offender provisions of HRS § 706-606.5, consecutive
term sentencing is permitted; (6) assuming arauendo a conflict
between HRS § 706-606.5 and HRS $ 706-668 exists, repeat
offenders must be sentenced in accordance with HRS § 706-606.
because a specific statute controls over a general statute
concerning a common matters and (7) inasmuch as Petitioner was
sentenced under HRS § 706-606.5 within the parameters described
above, Petitioner’s consecutive indeterminate maximum sentences
do not constitute a violation of the due process and sx post
facto provisions of the federal and Hawai'i constitutions.
1
‘The following matters, sone verbatim, are from the
application.
Petitioner was convicted on October 13, 1963 of, inter
alia, three Class A felonies. As Petitioner states in his
application,
oln February 18, 1982(,] the (g)rend (3]ury indicted
[Petitioner] for’ 14 counte, including three Class A felony
Sexual assault charges and three burglary charges. The
incidents giving rise to the charges occurred an September
16, 18, and 29, 1981. On October 13, 1983[, Petitioner) was
convicted by a Jury of the three counte that are the subject
of this appeal, two counts of rape in the first degree 27
Violation of His § 707-730, and one count of sodomy in the
Hirst degree in violation of HRS’ § 207-733. Bll three,
‘Sounte were Clase A felonies, requizing a maximum
ingsterainste erison sentence of 20 vesrs under HRs € 706~
VOR PUBLICATION IN WEST'S HAWAI'E REPORTS AND PACIFIC REPORTER**+
"1 315, 82 P34 402
S001") State v. Kamans'o, 103 Hawa!
12003)
(Bophasis added.)
‘This sentence was subsequently vacated and in April
2004, Petitioner was sentenced to an extended term. As
Petitioner alleges in his application,
[his] first sentence was vacated by the [s]uprene [clourt
Based upon a Fifth Amendment violation claim that he was
Sentenced to an extended tezm solely on the grounds that
Fofused to admit guilt. {Kamanaol, 103 Hawai'i [at) 324, 62
Pisa at alo.
Resentencing hearings were held on April 21 and 23,
2008. “the [elourt granted . = (the) motion for an
extended term [filed by Respondent /Plaintiff-Appellee State
Of Hawai's (Respondent)? under findings other than
{Petitioner's} refusal to admit guilt, including
peychological harm caused,
* gs § 706-659 was enacted in 1960. Se 1980 Haw. Seas. L. Act
298, § 1, at S62; ‘The 1993 version was in effect at the tine of the incidents
Gna! stated ss follows:
Sentence of imprisonment for class A felony.
Notwithstanding sections 706-620 to 706-631, suspension of
Sentence and probation, and sections 706-605, 706-606, 206=
Sess, 706-660.1, 70G-és1, 706-662, and any other law to he
gonteary, ¢ peison who has been convicted ofa class B
felony shail be sentenced to an indeterminate ten of
‘pciscnment of twenty veare without possibility of
‘gistension of sentence of crebation- ‘The minimum length of
Imprisonment shall be deterained by the Hawaii paroling
authority in accordance with section 106-063,
(Boldfaced font in original.) (Emphases added.) The current statute is
substantially the sane ac i¢ was in 1993 except that HRS § 706-659 was amended
in t99e
£0 allow the court to make an exception for a person
Convicted of a class A felony defined in chapter 712, part
IV, [offenses related to drug and intoxicating compounds, |
from the mandatory sentence of an indeterminate term of
imprisonment without the possibility of suspension of
sentence or probation{] ... . allowing jodges. sone
Giseretion in evalusting all’ appropriate sentencing and
treatment alternatives available for drag offenders,
Conmentary on HRS § 706-659 (Supp. 2007) (citing Conference Committee Rep. Ho.
62, in 199¢ House Journal at B08, 1994 Senate Journal ae 724)
‘s++PoR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER***
On June 21, 2006, the Hawai'i United States district
court vacated the extended term sentence under Apprendi v. New
Jersey, 530 U.S. 466 (2000). Petitioner's application states
chat:
‘The April 2004 sentences were vacated by the United
States District Court of the District of Hawas’s on June 21,
2006 under. [Asorenail, the “Apprend: rule," and its progeny.
[Petitioner's] extended term sentence of Life imprisonment
with the possibility of parole [as a multiple offender
porsuant to HRS § 706-662(4] (a) 4 (o)] was ruled to have
Been inposed in violation of the Sixth Amendnent to the
United States Constitution's right tos trial by jury.
As recounted by Petitioner, at resentencing, the court
adjudged that the rape convictions would be served concurrently,
but that the sodomy conviction would run consecutively to the
rape convictions.
on Octaber 6, 2006{, Petitioner) vas resentenced as to
counts 6) 9, and li, the three Class A counts, The (eloure
Fesentenced [Petitioner] to mixed concurrent and consecutive
tema, i.e., concurrent 20-year terms az to counts 9 (rs
in'the first degree) and ll. (sedomy in the first degree), to
‘So a 20-year tern as to count 6 (rape
Tr with eredit for time served.
Erthe first dege
(Emphasis added.) As noted previously, the court also imposed
mandatory minimum sentences of five years, for each of Counts VI,
IX and XI, based on Petitioner’s status as a repeat offender
pursuant to HRS § 706-606.5."
> pertinent to this cage, HRS § 706-606.5 was amended in 1981. See
1981 Haw. Sess. L. Act 69, $1, at 102, The statute in effect at the tine of
the incidents sppiied through the 1985 version. That version stated in
pertinent part as follows
Sentencing of repeat offenders, (1) sotuithstanding
section 106-669 and any other lw to the contrary, an
Rexson convicted under section. 70-730 relating to
fone in the first degrees 09°75) relating to sodomy Inthe
: Tor] J0s-a10 relating to Burglary in the
first degree... ”, who has a prior conviction for any of
(continued...)
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#*
‘The court's October 16, 2006 amended judgment" stated
as follows:
WANOATORY MINIMUM: FIVE (5) YEARS FOR Counts VI, IX and X
HicanceRaTioN®
TWENTY 120] YEARS for each of COUNTS VI, 1X and
Snseeueively to COUNT UE
Said terns are to run concurrently with Cr. No. 52291.
Defendant 12 to receive credit for tine already served.
Niteimus to iseve foreneith
OTHER! DEFENDANT IS SENTENCED PURSUANT TO ORDER OF THE U.S.
BISTRICT COURT (CIV. NO. 05-0068] SOM-KSC) FILED JUNE 22,
2006
(Counts I and II: Severed)
[iicounts Tv, Vand XIT? Dismissed)
[counts Ii, vit, VItz, x, MIT and XIV: Terms of
“(os seontinued)
‘the above enumerated offenses or of any of those enunerated
in subsection (2) in this or another jurisdiction, within
the tine of the maximum sentence of the pricr conviction,
shail bs Sentenced for each conviction after the first
Conviction to a mandatcry minimus period of impctacoment
uithout possibility of earole during such period as follows:
‘al Secand_comiction = vears
te] third conviction +10 years:
(2) ST Section... 13429 relating to permite to
carey
Sandatory minimin denbenca without possibility of parole
than that mandated by this section where the court’ finds
that strong mitigating circumstances warrant such action.
(Boldface font in original.) (Emphases added.) During Petitioner's
January ¢, 198¢ sentencing hearing, the court took judicial noice that
Petitioner had been previously convicted for “[elarrying a [f)irearm on
(plersen (without (pJermit oF (l}icense pursuant to (sjection 134-9" and
Petitioner did not object. Amendments ware mage to the statute in 1986 "so
that mandatory minimum terms of imprisomment are increased es the severity of
the repeat offense increases. Thus the mandatory miniman term for s clase A
Fepeat offender is greater than that term for a clase B repeat offender.”
Commentary on HRS §'706-606.5 (1993). In aadition, convictions in other
Jurisdictions and other class C felonies were added to the list of felonies
Subject to repeat offender sentencing, The gist of the seatute 1s
Substantially the same
+ ‘the judgment filed on October 6, 2006 was amended on October 16,
2006. the october 6, 2006 judgment referred to Counts 1, 2) and 3 for the
Jarious police report nunbers in the box entitled “sEPOR? NOBER(S)<" The
October 16, 2006 amended Judgment corrected those counts to counts é 9, and
i
‘s#4POR PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER*#*
Incarceration have been completed)
Defendant shall provide specinen samples and print
Impressions aa coquited By H-ReS. chap. 864
(emphases added.) (Capitalization in original.)
The seeming conflict between the concurrent sentencing
ordered by the court pursuant to HRS $ 706-668" and the
consecutive sentencing permitted by HRS § 706-606.5 and also
ordered by the court was the apparent dispute at sentencing
between the parties. Petitioner states that “in a(n SDO] issued
on Decenber 13, 2007[,]" “the ICA. . . affirmed the mixed
concurrent and consecutive sentence[.]” The S00 states with
respect to the questions raised as follow:
(2) the circuit court was not statutorily barred from
imposing consecutive terms. Consecutive terms we
authorized by HRS § 706-608.5(1) and (3), as ancnded in
iser.
(2) imposition of consecutive sentences vas pursuant
to HRS § 706-606.5(1) and (3) and was not in violation of
federai due process or ex pout facto, ARS $ 706-606.5(2)
and. (3) provided adequate notice, sae State v. Vinge, l
Hawai'i 303, 321, 916 P.2d 1210, 1222 (i996)
> ‘with respect to concurrent sentences, HRS § 706-663 (Special
Panphiet 1975), the version in effect at the tine Petitioner conmitted che
offenses, stated:
Concurrent and consecutive terms of isprisonnent.
(2) except as provided in subsection (2), shen multsple
Suze time, of when a person who 1s subject to any
Ghatscnarged term of imprisonment ss sentenced ¢3 sn
additional term of imprisonment, the sentence or sentences
(2) “Ifa person whois imprisoned in a correctional
inetitution is convicted of a crime committed while he ss
imprisoned of during an escape from impriscrment, the
nazinin term of inprisonment authorized for the crime
Connitted during inprisonment or during an escape from
Impriscanent aay be adied to the portion of the term which
ronained unserved at the tine of the commission of the
Eine. For purposes of this section, escape is a crime
Soamitted during imprisonment.
(Boldfaced font in original.) (Emphases added.)
7
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(3)_ the consecutive ters were not inconsistent with
the District Court's order or Apprendi. State, Kehansa,
TIT Mawai's 267, 142 P.3a 440 (2008)
‘800 at 5.
1.
Petitioner presents the following questions in his
Application.
1. Did the ICA gravely err in holding that the pertinent
ropeat offender statute, HRS § 706-606.5(1) and (3),
permitted consecutive maximum terms when the plain meaning
Be that provision Ls that it only provides for consecutive
‘mandatory minimum terns for repest offenders, and not for
2." bla the Ica gravely exr in upholding 2 new judicial
Sonatructicn that allows consecutive maximum term
Sentencing, which was expressly forbidden under the law in
Sffoct at cho tine of the commission of the offenses, asa
‘iolation the due process and ex post facts provisions of
the federal and liawai't constitutions?
Petitioner does not present argument with respect to
paragraph (3) of the ICA’s S00 pertaining to Apprendi, and, thus,
that holding is not discussed. Cf, Hill v. Inouye, 90 Hawai‘i
76, 82, 976 P.2d 390, 396 (1998) ("The general rule provides that
*[A]ssues not properly raised on appeal will be deemed to be
waived.'” (Quoting Pele Def, Fund vy, Paty, 73 Haw. 578, 613, 837
P.2d 1247, 1268 (1992).
(Brackets in original.)
rir.
On February 12, 2008, Respondent filed a response to
the Application. Essentially the response reiterates its
Answering Brief arguments. See infra. It repeats Respondent’ s
position that
((2)) The mandatory minimum periods of inpriscrment”
proscribed in HRS"§ 106-606.5 were part of the staturorsly
Bandates indeterminate terms of inprisonnent for the
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‘enumerated crines and sot sentences unto thenselves.
States. Feliciano, 10? Hawai 469, 503, 115 P-34 €48, 682
(2005) {heoba, Jvy dissenting). Therefore, the “sentences”
referred to in HRS § 206-606.5(3) that could regult from the
application of the statute wore the "enhanced criminal
Sentences” that consisted of the indeterminste terms Of
Imprisonment for the underlying crime and the “aandatory
inimum period of iaprisonsent” that directed "how a certain
Period of the indeterminate term was to be served." (1d.)
1121] ". . . (tyke (court’s] authority to order
Petitioner to sorve the sentences consecutively derived from
the clear and snanbiguous language of #82 § 70-606.5
ici l. . tals gar pack as nie original sentencing
hearing in 1984, ‘the precedent regarding statutory
construction was well settied and made the inposition of
Consecutive sentences pursuant co HRS 706~
eee Tana ehus
Benonstrate the | | consecutive sentences” [we
“fair warning” of a “Judicial expansion of his penel
adapility.”
(Brackets and footnote omitted.) (Emphasis in original.)
wv.
aA
As to his first question, Petitioner argues that
“[w]ith no explanation of its reasoning, the ICA held that the
repeat offender statute applicable to the offenses in 1981, HRS
§ 106-606.5[,] gave the [c]ourt authority to impose consecutive
maximum terms, despite the fact that the multiple term statute in
effect in 1981 authorized only concurrent maxinum[s]. HRS § 706-
668.” He maintains that “(t]his is a grave error of law that is
inconsistent [with]/Hawai'i Supreme Court holdings requiring
strict adherence to plain and unambiguous meaning in Penal Code
language.”
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Petitioner states that HRS $§ 701-101, 706-668(1) and
106-606.5 are relevant. With respect to HRS $ 701-101," he
argues that “HRS § 701-101 . . . mandates that the penal statutes
applicable to prosecutions for offenses are those in effect at
“RS § 701-102 was enacted in 1972. See 1972 Haw. Sess. L. Act 9,
§ 1 at 32-33," The statute wag reprinted in 197S as a Special Pamphlet that
Contained Title 37, the Hawai'i Penal Code, and was in effect at the tine of
The incidents, That version stated ae follow
Applicability to offenses consitted before the
effective date. (1) Except as provided in subsections
(2) and (3), this Code does not apply to offenses comitted
before ita effective date, Prosecutions for offenses
Conniteed before the effective date are governed by che
prior lau, which Ss continoed in effect for chat purpose, os
Te this Code were not in force. For purposes of this
Section, an of Gonmitted before the effective date
Lf-any of the elements of the offense occurred before that
Gace
(2) In any case pending on oF commenced after the
effective date of this Code, involving an offense coamitted
Before that date
(2)"" Open the request of the defendant a defense or
mitigation under this Code, whether specifically
Provided for herein or based upon the failure of
the Code to define an applicable offense, shall
apply; and
(®) Upon the request of the defendant and the
approval of the court:
(i) Procedural provisions of ths Code shail
apply insofar as they sre justly,
applicable; and
(44) The court may impose a sentence or suspend
imposition of a sentence under th
provisions of this Coge applicable to the
Sffense and the offender.
(3) Provisions of this Code governing the release or
discharge of prisoners, probationers, and parolees shall
apply to persons under sentence for offenses committed
Before che effective dace of this Code, axcept chat the
inimum or saxinum period of their detention or supervision
Shall_in no case be increased, nor shall the provisions of
this Code affect the substantive or procedural validity of
any Judgment of conviction entered before the effective aate
GE his Cous, regardiess of che fact that appeal tins has
Rot run oF that an appeal is pending.
(oldtaced font in original.)
In nis Application Petitioner does not state to which particular
provision he refers.
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the time of the commission of the offenses (in this case
Septenber of 1981)[.]” As to HRS § 706-668 (1), he declares that
vHRS § 706-668 (1) . . . in September 1981 mandated that multiple
terms of imprisonment must be concurrent." Petitioner relates,
to reiterate, that in 1961, HRS $ 706-606.5, the repeat offender
statute, stated in pertinent part that “[t]he sentencing court
may impose the above [mandatory minimum] sentences consecutive to
any other sentence then . . . imposed on the defendant...
Petitioner recounts that “{o)n direct appeal, [Respondent] argued
the ‘notwithstanding’ clause of the repeat offender statute
cancelled HRS § 701-101 and § 706-668, granting consecutive
maximum term powers to the sentencing court.”
However, Petitioner maintains (1) that “(t]he plain and
obvious meaning of this statute(, HRS § 706-606.5,] relative to
consecutive sentencing is that it refers entirely and only to
consecutive mandatory minimum term sentencing and in no way
addresses the subject matter of consecutive maximum term
sentencing.” According to Petitioner, “[tJhe phrase ‘above
sentence
in subsection (3) [of HRS § 706-606.5] is clear
because the only sentences addressed above that language are
mandatory minimum term sentences.” (Emphasis in original.)
Petitioner contends that “ironically” “[t}he [eJourt, and
HRS § 706-668
314, $46, at 614.
12 repealed in 1986. See 1986 maw. Sess. L, Act
‘See supza note 7.
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presumably the . . . ICAI, without saying so,) relied upon State.
comelio, 44 Hawai'i 476, 935 P.2d 1021 (1997), and State v.
Dudoit, 90 Hawai'i 262, 978 P.2d 700 (1999) [,]” and that “[t]hose
cases, with holdings entirely unrelated to the instant case, both
stand for strict application of the plain meaning rule.” ‘Thus,
Petitioner posits that, “[iJn other words, it doesn’t matter that
the legislature failed miserably in carrying its intention into
effect, the reviewing court must adhere to the plain and
unambiguous meaning of the actual language of the statute. See,
generally, [Dudoitl, (supra).”
Further, Petitioner contends (2) “as a matter of law
- + Concurrent maximum terms do not contradict consecutive
minimum terms.” (Boldfaced font omitted.) Pointing to the
instant case, he argues:
The HRS § 106-668 bar to consecutive sentencing in multiple
Count indicenents
neing [petitioner to 7 consecutive Sevear mangater
‘Binimun terms, requiring hin to serve the entire 20 vear
Encinas without possibility of carole. the face that ¢
Ecnaecutive sandatory minimim sentences in [Petitioners]
Sage would have led toa mandatory 20 out of 20 years, in
face de the axsct amount of tine without parole the
ator requested at the initial sentencing hearing sn
‘The prosecutor said, ". - «if there could be some
[guatantes) that he would be out Of the community for that
20 years, then [Respondent] might consider asking for the 20
years.” {fsmansol, 103 Hawai'i [ati 317, 82 2.39 (atl 403.
(Bmphasis added.) According to Petitioner, this is because
w]nere the statutes sisply overlap in their application,
effect will be given to both if possible, as “repeal by
Implication 1s Sisravored.” State v. Kelis, 91 sawai'l 319,
330, 984 P.24 78, e9 (1999) (quoting Gtate . Vallesteros,
84 hawat's 295, 402, 933 P.24 ¢03, 640 (907}7 Seabee
80 Hawai'i 8, 19'n.16, 906 P.24 893, 904 na1e
(i995) (further citations onittea)-
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Petitioner argues (3) that “[tJhere is an irreconcilable conflict
between HRS § 706-668 and HRS § 706-606.5. The two statutes are
not even on the sane subject matter. MNathenatical impossibility
to impose consecutive mandatory minimum terms in some cases,
while not others, is not a contradiction.”
5
In its Answering Brief Respondent first argued that the
specific sentencing provisions of HRS § 706-606.5 controlled over
the general sentencing provisions of HRS § 706-668. According to
Respondent, (1) “HRS § 706-606.5 . . . [is] a apecific sentencing
statute, the provisions of which were reserved for a specific
+. . subclass of defendants: i.e,, ‘repeat offenders’ (emphasis
in original): (2) “foJn the other hand, HRS § 706-668 was a
general sentencing statute”; (3) “{Petitioner’s] assertion that
the specific sentencing provisions of HRS § 706-606.5 were
Limited by the general sentencing provision of HRS § 706-668 was
not expressed by the legislature”; (4) “[t}herefore, . . . the
specific provision of HRS § 706-606.5(3) that authorized the
imposition of consecutive sentences and not the general provision
of HRS § 706-668 was applicable to him{,]" (citing Kotia, 91
Hawai'i at 330, 984 P.24 at 89 (court noted that “where there 1s
a ‘plainly irreconcilable’ conflict between a general and a
specific statute concerning the same subject matter, the specific
will be favored”) (citation omitted).
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Second, Respondent argues that “[tJhe clause
‘notwithstanding . . . any other law to the contrary’ [in] HRS
§ 706-606.5(1)" indicates the “broad scope” of the statute as
apparently controlling. Third, Petitioner maintains that “[tJhe
‘mandatory minimum period of impriscnment’ was subsumed within
the statutorily mandated indeterminate term of imprisonment for
the enumerated crime for which it could be imposed and was not a
sentence unto itself” (citing Feliciano, 107 Hawai‘ at 503, 115
P.3d at 682 (Acoba, J., dissenting)}; and “[t]herefore, the
\sentences’ referred to in HRS § 706-606.5(3) that would result
from the application of the statute was the ‘enhanced criminal
sentence’ consisting of the statutorily proscribed indeterminate
term of imprisonment for the enumerated underlying crime and the
‘mandatory minimum period of imprisonment’ to which it attached.”
Fourth, Respondent asserts that “[Petitioner] cites no authority
that supports the proposition that the legislature intended to
treat the ‘mandatory minimum period of imprisonment’ as a
sentence separate and distinct from the underlying crime for
Which it was imposed.” (Emphasis in original.)
AL
With respect to Petitioner’s argument (1) that HRS
$ 706-668(1) is plain and unambiguous and controls, HRS § 706-
668(1) must be read with HRS § 706-606.5. Under HRS § 706-668,
when multiple prison sentences are imposed at the same tine, as
a4
in this case, the sentences must run concurrently (stating that
“when multiple sentences of imprisonment are imposed on a person
at the sane time, . . . the sentence or sentences imposed by the
court shall be served concurrently”). As stated previously, the
court imposed sentence on three separate class A convictions at
the sane time and HRS § 706-668(1) thus applies. Under HRS
§ 706-606.5, however, mandatory minimum sentences imposed on a
repeat offender may be imposed consecutively in the discretion of
the court. See HRS § 706-606.5(3) (“The sentencing court may
impose the above sentences consecutive to any other sentence then
or previously imposed... 2")
In this regard, HRS § 706-668 is a general statute in
the sense that it pertains generally to all offenses and without
regard to the type of offender involved. On the other hand, HRS
§ 706-606.5 concerns certain enunerated offenses for which the
legislature has required “nandatory minimum periods of
imprisonment without possibility of parole” to be imposed for a
particular class of offender, that is, the repeat offender. This
Sustice Levinson's dissent argues that, with this proposition, we
“essentially contend[] that the 'sentences’ referenced in paragraph (3)
sncluded the indeterminate maximum terns corresponding to each mandatory
minimus.” Levinson, "J; dissenting at 2. Relatedly, that dissent opines that
“the Language of HRS § ?06-e06.5(3) authorized (the court] to impose
consecutive mandatory pinimim terme. It did not, by its terms, plainly permit
[the court] to order consecutive indeterminate Eaximun sentences, becaues the
provisions found ‘above’ that paragraphs simply dig not govern the imposition
Sf indeterminate maxima terms.” dg at 3 (citations onittea) (emphases in
original] «
However, the construction of HRS § 106-606.5(3) 19 not before this
court, and therstore, is not addressed. It must be emphasized that our
Snalyais Le not concerned with “the above sentences" and our conclusion does
ot rely on that language
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court has said that “where there is a ‘plainly irreconcilable’
conflict between a general and a specific statute concerning the
same subject matter, the specific will be favored. However,
where the statutes simply overlap in their application, effect
Will be given to both Sf possible, as repeal by implication is
disfavored." Richardson v. City 4 County of Honolulu, 76 Hawai'i
46, 98, 868 P.2d 1193, 1202 (1994) (internal quotation marks and
citation omitted).
With respect to “overlapping” and Petitioner's argument
(3), BRS § 706-668 and HRS § 706-606.5 may be viewed as statutes
that overlap on the question of concurrent and consecutive term
sentencing. See Kienker v. Bauer, 110 Hawai'i 97, 109, 129 P.3¢
1125, 1137 (2006) ("observ(ing] that HRS § 663-10.5 and HRS
§ 663-10.9 are statutes that overlap on the question of joint and
several liability” and noting that “it is possible to give effect
to both statutes inasmuch as the broad language of HRS § 663-10.5
may be construed as abolishing the government's joint and several
Liability unless an exception such as that embodied in HRS § 663-
10.9 applies”). HRS § 706-606.5 is the specific statute in that
it deals expressly with sentencing for certain felony convictions
in cases involving repeat offenders, such as Petitioner. On the
other hand, HRS § 706-668 is manifestly general in scope as it
pertains to sentencing for all offenses and for all types of
defendants except as expressly designated in subsection 2 of HRS
§ 706-668 which is not relevant here.
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Although HRS $§ 706-668 and -606.5 overlap, it is
possible to give effect to both statutes inasmuch as the broad
Language of HRS § 706-668 may be construed as prohibiting
consecutive term sentencing where multiple sentences of
imprisonment are imposed at the same time, except that in certain
situations such as that embodied in the repeat offender
provisions of HRS § 706-606.5, consecutive term sentencing is
permitted, for instance, in the case where an HRS § 707-730 rape
or HRS § 707-733 scdomy is involved." The fact that the repeat
offender sentences may be run consecutively in the discretion of
the court leaves the question of how the HRS § 706-668 concurrent
indeterminate sentencing provision would be affected.
8.
In this regard and with respect to Petitioner's
argument (2), HRS § 706-606.5 must be construed with HRS $$ 706-
659 and -668. HRS § 1-16 (1993) states that “{1Jawa in pari
materia, or upon the same subject matter, shall be construed with
” See also Honda ex rel, Kamakana v. Bd
reference to each oth
Me Additionally, assuming, azguends, that HRS 5 706-668 and -606.5
are irreconcilable, § 706-606.5 will Control insofar as it is the more
specific statute and should be given effect. Where there is 2 conflict
Between two statutes, this court has said, as noted above, that a specific
statute controls over a general statute céncerning 2 common matter
2 76 Hawai'i at £5, 868 Pi2d at 12027 gee alge Renker, 110 Hawal's
3c 110, 129 P.24 at 1138 (noting that even ~(a)suming, arquends, that chore
fe 4 plainly irreconcilable conflict between a general stature snd a specific
statute conterning the same subject matter, .". . under rules of statutory
construction, the specific statute, in thie case, HFS § 663-10,9(4), would be
Given effect” (internal quotation marks and citation omstted)) Thus, HES
5° 706-606.5, the specific seatute, woold govern Petitioner's sentence:
Contrary to’ Petitioner's position, then, the general provisions of HA § 706-
65 would give way to the more specific provision of HRS § 706-606.5.
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of Trustees, 108 Hawai'i 338, 344, 120 P.3d 237, 243 (2005)
(citing HRS § 1-16 and reading HRS §§ 88-27 and ~127 in pari
materia); State v. Hoshijo ex rel, White, 102 Hawai'i 307, 317,
76 P.3d $50, 560 (2003) (using HRS § 1-16 as authority for its
decision to read HRS §§ 489-3 and 498-2 in pari materia). In
pari materia refers to things that are “(o]n the same subject” or
“relate[] to the same matter.” Black’s Law Dictionary 806 (8th
ed. 2004). All of these statutes relate to sentencing, and,
therefore, should be construed in pari materia.
“It is a canon of construction that statutes that are
in pari materia may be construed together, so that
inconsistencies in one statute may be resolved by looking at
another statute on the same subject.” Id. Thus, “[1Jaws in pari
materia, or upon the same subject matter, shall be construed with
reference to each other. What is clear in one statute may be
called upon in aid to explain what is doubtful in another.”
Barnett v. State, 91 Hawai'i 20, 31, 979 P.2d 1046, 1057 (1999)
(internal quotation marks and citation’ omitted).
Reading the statutes in pari materia, it is manifest
that HRS § 706-606. provides for sentencing in specific
circunstances whe:
1s HRS § 706-668 is a general rule. The
express language of HRS § 706-606.5, “[nJotwithstanding . . . any
other law to the contrary. . . [,]” clearly limits the
applicability of HRS § 706-668 in cases involving the
“[elentencing of repeat offender:
" HRS § 706-668 is precisely
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the type of “law to the contrary” described in HRS § 706-606.5
Thus, reading the two statutes together, it is evident that HRS §
706-668 is the common starting point for sentencing, but that in
the specific circumstances presented here, i.e., where the
defendant is a repeat offender, the sentencing court may
disregard the general rule and apply the statutory provision that
applies to these particular facts.
HRS § 706-659 requires that “a person . . . convicted”
of a class A felony be sentenced to an “indeterminate” twenty
year term. (Emphasis added.) Rape in the first degree and
sodomy in the first degree are class A felonies. Accordingly,
pursuant to HRS § 706-659, the convictions for rape and sodoay
subject Petitioner to an indeterminate twenty-year term for each
of the offenses for which he was convicted. HRS § 706-606.5
indicates that “for each conviction,” a person guilty of any of
the enumerated offenses in HRS § 706-606.5 including rape and
_ gustice Levinson’ dissent maintaine that HRS § 706-668 and HRS
$ 206-606.5 vere not contrary to each other because the former “plainly
Fequired that the indeterminate maximum prison terns of (Petitioner's) ~
Convictions run concurrently(,1” and the latter “did not authorize consecutive
indeterminate maximum terns.” Levinson, J., dissenting at 3. With all due
respect, this is unpersuasive.
Because wo conclude that a mandatory minimum term is inherently
part of the indeterminate maximum term of which it 12 a part, the two cannct
be‘ separated, ‘and both of the two components mist be served ae part of one
Sentence, Inasmuch as HRS § 706-606,5 authorizes the inposition of
Consecutive mandatory minimin sentences, such sentences ust be ser
Of indeterminate maximum tera of imprisonment, and, accordingly, the
Gndeterminete terms must run consecutively. Therefore, the prescription of
Consecutive inasterminate noximin terme ig contrary to the general
Proseription against such indeterminate sentences Funning consecutively as
Foquirea by HRS § 106-658
das part
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sodomy “shall be,” i.e., must be sentenced, to a mandatory
minimum sentence.
Because a person convicted of a class A felony such as
rape must be sentenced to a twenty-year indeterminate term under
HRS § 706-659 and, if such @ person is @ repeat offender, he must
also be sentenced to a mandatory minimum term of imprisonment
under HRS § 706-606.5, that person is subject to both sentences
for that one offense. Reading HRS §§ 706-659 and ~606.5 in pari
materia, inasmuch as HRS § 706-606.5 refers to a “minimun” term
of imprisonment that a person must serve for the enumerated
offense, the maximum term for that same offense must be the
maximum indeterminate term described in HRS § 706-659." The
mandatory minimum term, then, is served as part of the maximum
indeterminate term. By definition, a mandatory minimum sentence
must be less than the maximum sentence imposed of which it is a
part. Tt follows that a mandatory minimum sentence is part of
the lengthier indeterminate maximum of which it is a component.
A mandatory minimum sentence imposed as a result of a
conviction ia not ancther “offense,” ©
s'. The mandatory sentence, although allowed to be
imposed with the indeterminate term, does not exceed that
M justice Levineon’s dissent takes issue with this portion of our
analysis, positing that we hold “that HRS § 706-606.5(3) authorized (the
Sourt] 0 Impose consecutive maxinum terms by implication.” Levinson, J-,
dissenting at 4. To the contrary, we do not hold that HAS § 706-606. 5 (2)
implicitly authorizes the imposition of consecutive indeterminate maximus
tems of inprisonnent. Rather, reading that statute in pati matexia with the
Gther sentencing provisions noted, and eppiying this coure’e precedent
Guplaining the nature of the relationship inherent between miniman and maxima
Sentences, we conclude that mandatory minimum sentences are not separate
Sentences and therefore, cannot be divorced fram the indeterminate, maximum
Sentences of which they are a part. The statutes cannot be construed in
ieelation.
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term, but only directs how a certain period of the
indeterminate term is to be served, in this cage, mandating
that Defendant be imprisoned for a least three years out of
the indeterminate term.
ence, Defendant io hot punished twice for the same
acts he ie punished once, the mandatory minimum indicating
how he must serve the initial part of his sentence. In
effect, the mandatory mininun, then, is a restriction on the
parole board's discretion on setting the mandatory minimum
Sentence a convicted person mist serve, See HRS § 706-656
(1993 ¢ Supe. 2004")
Feliciano, 107 Hawai'i at 503, 118 P.3d at 682 (Acoba, J.,
dissenting) .”
‘This is also reflected in the effect the sentences
would have on the availability of parole. HRS § 706-659
mandates, with respect to a class A felony, that the court impose
© Respectfully, to hold that mandatory minimum sentences exist
independent of the maximum indeterminate sentence inposed, as Petitione®
suggests, would be legally incorrect. See State v. Gomes, 117 Hawai! 218,
252,177’ P.3d 928, 942 (2008) (interpreting HRS 5 710-1070, a statute
prohibiting bribery of a witness in a criminal case, ina manner that avoided
Sgbourd interpretation of the express language of [che statute]")) Zausss v
State, Dep't of Labor ¢ indus. Helationg, 113 Mavaii i, 1, 147 P.3a 785, 815
(2006) (holding that this court te "bound to construe statutes so as to avoid
baurd resulta” [citation caltted)). the indeterminate maximum sentence
allows the Hawai'l Paroling Authority (HPA) to exercise its discretion in
Seckding when a defendant should be released on parole. Gea HRS § 706-€69(1)
(Supp. 1996) (requiring that for incarcerated prisoners serving “an
indeterminate or an extended term of imprisonment, the [HPA] shall{) . -
hold s hearing, and. . , make an order fixing the ainiaun term of
Imprisonment to be served before the prisoner shall becene eligible for
parole") ARS '§ 706-670(1) (Supp. 2007) (stating that [a] pefaon sentenced to
bn indeterminate term of imprisonment shall receive an initial parole hearing
ft least one month before the expiration of the minimum term of imprisonment
Getermined sy the (HPA) pursuant to section 706-665(]” and thst “[1]f perole
fe not granted at that time, additional hearings shall be held at twelve-month
Antervale or lesa until parole 1s granted or the maximum period of
imprisonment expires(]*)
Relatedly, a3 discussed previously, the mandatory minimum sentence
sets how the first part of the defendant's indeterminate sentence 1s to be
ea Eelicians, 107 Hawai's at 503, 11 F.3d at 682 (Acoba, J.»
Gissenting). Essentially, the mangstory minimum tera prohibits the HPA from
‘exercising its discretion to release the defendant on parole for a set period
Of tine. Sag dd, (citing HAS'S 206-656 (1999 4 Supp. £004) (footnote
omitted)).- Because a mandatory minimun sentence is by definition incorporated
nto andy ‘thus, La a part of the indeterminate maximum sentence, st would be
Legally incorrect to hold that mandatory minimum sentences exist independent
‘of the indeterminate maximum sentences to which they are applied and would run
Separately rom the indeterminate maximum sentences of which they aze a part.
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a twenty-year indeterminate term of imprisonment and that the
court is prohibited fron suspending the sentence or granting
probation, “notwithstanding section{} . . . 706-606.5 . . . and
any other law to the contrary{.]" The purpose of requiring a
twenty-year sentence was based on the belief that
the seriousness of class A felonies . . . merits mandatory
anpriscoment, this bill effects this purpose by denying
Suspension of sentence and probation as sentencing opticns
in class A convictions,
Srder that unusual extenuating cifcumstances can be given
Sue consideration.”
Conmentary on HRS § 706-659 (1993) (quoting Senate Stand. Coan.
Rep. No. 965-80, in 1980 Senate Journal, at 1491) (emphasis
added). Contrastingly, HRS § 706-606.5 requires that the
mandatory miniman term of imprisonment be served “without
possibility of parole.” As noted above, the HRS § 706-659
indeterminate term provision “retains through [an] indeterminate
sentence, the option of parole by the paroling authority.”
Commentary on HRS § 706-659. Thus, inasmuch as Petitioner was
convicted of rape in the first degree and sodony in the first
degree, he 1s not subject to parole for the mandatory minimun
terms specified in HRS § 706-606.5. That part of the maximum
indeterminate term unaffected by the mandatory minimum term,
however, remains available for the parole board’s exercise of
discretion with respect to parole.
Additionally, reading the statutes to allow the
imposition of consecutive indeterminate maximum sentences in
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conjunction with mandatory minimum sentences would comport with
the legislative intent. For example, if a defendant were
sentenced to consecutive five-year mandatory minimum tezms on six
Class A felony counts, the conbined mandatory minimum term would
be thirty years. However, the indeterminate maximum term for
each individual Class & felony would be twenty years. Thus, if
the indeterminate maximums were served concurrently, they would
be shorter than the combined mandatory minimum terms.
Contrastingly, reading HRS § 706-606.5(3) as allowing the
imposition of consecutive indeterminate maximun sentences where
the mandatory minimum sentences are imposed consecutively
guarantees that the mandatory minimum term will not exceed the
indeterminate maximum term, and is consistent with the
legislative directive that mandatory minimum sentences for
multiple offenses may run consecutively.
Under the reading espoused by Justice Levinson’s
dissent, there is no relationship between the mandatory mininun
terms of imprisonment and the correlative indeterminate maxinun
sentences. This is inconsistent with the dissent’s own
rationale, which relies on the premise that minimum and maximum
terms are defined by thelr relation to one another. See
Levinson, J., dissenting at 6 (agreeing “that a mandatory minimum
prison term is subsumed within an indeterminate maximum prison
term” (citations omitted)). Such an interpretation of HRS § 706-
23
606.5(3) abrogates this relationship insofar as it is posited
that mandatory minimum terms could exceed indeterminate maximum
Moreover, Justice Levinson‘s solution to the
hypothetical problem of consecutive mandatory minimum terms that
would run longer than the concurrent indeterminate maximun terms,
dues, releasing the defendant at the expiration of the latter,
see Levinson, J., dissenting at 6-9 n.3, is incompatible with the
purposes of the penal code. The purpose of mandatory minimum
terms in the case of multiple offenses is to guarantee that 2
defendant is punished more severely if he or she demonstrates
repeated inability to abide by the law. See State v. Rodrioues,
68 Haw. 124, 131, 706 P.24 1293, 1298 (1985) (“What is quite
evident from the history is a growing legislative concern with
the problem of recidivism in crime.”) Releasing a defendant
“early” because the concurrent indeterminate maximum terms
expired, as the dissent suggests, but whose criminal activity
warranted more severe punishment, undermines the legislative
intent of allowing sentencing courts to impose mandatory minimum
terms of imprisonment consecutively under HRS § 706-606.5 in
multiple offense situations.
Pursuant to HRS § 706-606.5, mandatory minimum terns
are imposed to reflect the seriousness of the offense committed.
See Commentary on HRS § 706-606.5 (1993) (explaining that, when
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this section was added in 1976, the legislature found “a clear
danger to the people of Hawai'i in the high incidence of offenses
being committed by repeat offenders” and “felt it necessary to
provide for mandatory terms of imprisonment without possibility
of parole in cases of repeated offenses by prior offenders”
(citing House Conf. Conm. Rep. No. 33, in 1976 House Journal at
1141, Sen. Conf. Comm. Rep. No. 32, in 1976 Sen. Journal at
883)): o£. Commentary on HRS § 706-620 (stating that there is a
presumption against imprisonment “unless . . . there is (1) undue
risk by repetitive criminal behavior, (2) need for
institutionalized correctional facilities, or (3) need to reflect
the seriousness of the crime which, under the circunstances of
the case, can only be accomplished by imprisonment"). Similarly,
the imposition of consecutive sentences reflects the seriousness
of the defendant’s conduct and the degree of threat that the
defendant poses to the community. See HRS § 706-606(2) (1993)
(isting the need “(t]o reflect the seriousness of the offense”
and “[tJo protect the public” as factors to be considered in
determining an appropriate sentence). Thus, reading HRS § 706-
606.5(3) aa authorizing the imposition of consecutive
indeterminate maxinum sentences where consecutive mandatory
nininum sentences are mandated in multiple offense situations,
conports with both the plain reading of the statutes, ie., that
a minimum sentence must be contained within the maximum sentence,
and with the legislative intent, that consecutive mandatory
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minimum terms in multiple offense situations be available at the
discretion of the court “notwithstanding . . . any other law to
the contrary[,]” as discussed above.
‘The disposition suggested herein draws the parameters
for imposing consecutive mandatory minimum sentences. By
statute, the sentencing courts and the HPA retain broad
discretion to set sentences that are appropriate under the given
circumstances of each case on a case-by-case basis. See State v,
Sinagoga, 81 Hawai'i 421, 427, 918 P.2d 228, 234 (App. 1996)
(affirming the imposition of consecutive indeterminate terms
pursuant to HRS § 706-688.5 and explaining that the legislative
history of that statute revealed that “[t]he legislature assumed
“that judges will exercise their discretion in invoking
consecutive terms of imprisonment when appropriate as in
instances where the defendant committed multiple or subsequent
offenses’ (quoting Sen. Stand. Comm. Rep. No. 382, in 1982 Sen.
Journal, at 1111)), overruled on other rounds by State v.
Veikoso, 102 Hawai'i 219, 74 P.3d 575 (2003). Thus, the
sentencing court can readily adjust its sentence within such
parameters.
At oral argument, Petitioner referred to Keawe va
State, 79 Hawai'i 261, 282, 901 P.2d 481, 482 (1995), in which
the defendant was charged with fourteen Class C felony counts.
Petitioner hypothesized that, had the sentencing court imposed
consecutive mandatory minimum terms and hence, resulting
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consecutive indeterminate maximum terms on all fourteen counts,
the result would have been an indeterminate maximun term of
seventy years and a mandatory minimum term of forty-two years.
MP3: Oral Argument, Hawai'i Supreme Court, at 9:05 to 10:11
(June 5, 2008) available at
http://www, state.hi-us/jud/oa/08/SCOA_060508_28236.mp3/2-line.mp3
However, this arguably excessive hypothetical sentence, as are
all sentences, would be subject to review for abuse of
discretion. State v. Putnam, 93 Hawai'i 362, 372, 3 P.3d 1239,
1249 (2000) (“The applicable standard of review in sentencing
matters is whether the court committed a plain and manifest abuse
of discretion in its decision.” (Citations and internal
quotation marks omitted.)); see also People v. Alexander, 599
N.W.2d 743, 756 (Mich. App. 1999) ("An abuse of discretion may be
found where a sentence is disproportionate to the seriousness of
the circumstances surrounding the offense and the offender.”
(citation and internal quotation marks omitted.)). Although the
discretion of the sentencing court and the HPA is broad, it is
not unlimited, and the appellate courts retain the authority to
review extraordinary sentences for an abuse of that discretion on
a case-by-case basis.
Manifestiy, the sentencing court’s discretion includes
the discretion to run some mandatory minimum sentences
consecutively and others concurrently under HRS § 706-606.5.
Because the sentencing court has discretion to run mandatory
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minimum sentences consecutively or not, of to run some such
sentences concurrently and sone consecutively and thereby affect
the extent to which indeterminate sentences run consecutively,
any questions may be settled on the basis of the facts of each
case. Of course, the court also possesses the discretion to
impose mandatory minimum terms shorter than those set forth in
the statute based on the circunstances of the case. See State v
‘Smith, 103 Hawai'i 228, 232, 81 P.34 408, 412 (2003) (affirming
the circuit court's imposition of a mandatory minimum sentence of
eighteen months pursuant to HRS § 706-606.5, rather than the
statutorily prescribed twenty months based on the defendant’ s
commitment to drug treatment and willingness to accept
responsibility).
Because it appears that Justice Levinson’s argunent
does not comport with the statutes involved, it follows that the
call to overrule State v. Sautua, 67 Haw. 616, 699 P.2d 988
(1985), is incorrect. Applicable to this case, Saufua implicitly
held that, under HRS § 706-606.5, indeterminate terms may be
served consecutively. The defendant in that case was convicted
of robbery in the second degree, which he committed while on
probation for prior convictions of robbery in the first degree
and burglary. Id, at 617, 699 P.2d at 909. The circuit court
sentenced the defendant to concurrent indeterminate maxinum terns
of twenty and ten years for the previous convictions and to a
consecutive ten-year term for the second degree robbery
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conviction. Id, Additionally, the court ordered defendant to
serve a three-year mandatory minimum term for the second degree
robbery conviction consecutive to the other sentences. Ids
Thus, in total, defendant was sentenced to thirty-three years!
imprisonment. Id. at 617, 699 F.2d at 989-90.
on appeal, this court considered the question of
“whether the mandatory minimum sentencing provisions of (HRS)
§ 706-606.5{] may be imposed consecutive to the terms of
imprisonment for the underlying felony convictions.” Id. at 616,
699 P.2d at 989. This court appeared to be guided by the
statutory construction principle that “[i]n ascertaining intent,
the language of the provision must be read in the context of the
entire statute and construed in a manner consistent with its
purposes.” Id, at 618, 699 P.2d at 990. In the case of HRS
§ 706-606.5, the legislative intent was that
ny person
convicted for some of the most serious and reprehensible felonies
as defined by the (HPC) be sentenced, for each conviction after
the firet conviction{,] to a mandatory [minimum] sentence without
the possibility of parole.” Id, (quoting Sen. Conf. Comm. Rep.
No. 33-76, in 1976 Senate Journal at 863;
lise. Conf. Comm. Rep.
No. 32, in 1976 House Journal at 1141) (emphasis omitted).
In answering the question on appeal, the Saufua court
said that
{tthe pandstory minimus sentencing provisions are intended
toapely te sentences imoosed for the underiving subsequent
‘Sonuiction wnich triaaered application of the stature.
29
‘Eubsuned within the maxinum sentence inposed fort
Sffense. ‘This Ts in harmony with the statutory. ache
a i nO
Id at 619, 699 P.2d at 991 (emphases added) (footnote omitted).
‘Thus, in Saufua, this court had already determined that where
mandatory minimum sentences were involved, the maximum punishment,
available was the imposition of consecutive indeterminate maximum
terms. If the sentencing court increased the severity of the
punishnent by imposing a mandatory minimum term, it had to be
done in a way that would not exceed the consecutive indeterminate
sentences. In that regard, this court indicated that if
lengthier sentences were sought to be imposed, the sentencing
court would have to resort to the enhanced sentencing statutes,
HRS §§ 706-661 and -662. Id, at 618-19, 699 P.2d at 990-91
(noting that “[w]ith the exception of special problems calling
for extended terms of imprisonment, the statutes are intended to
allow imposition of only one maximum length of imprisonment
<" and that such “extended terms are provided for under HRS
§ 706-661 and may be imposed only upon proper motion and hearing,
and specific findings by the sentencing court” (footnote
omitted) ).
Justice Levinson “doles] not . . . agree with the
Saufua court's conclusion that HRS $ 706-606.5(3) ‘necessarily
must’ be read to authorize [the court] to impose indeterminate
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sentences consecutively.” Levinson, J., dissenting at 6 (citing
Sautua, 67 Haw. at 619-20, 699 P.2d at 991). Inasmuch as that
proposed interpretation of HRS § 706-606.5 conflicts with a
straightforward reading of the relevant sentencing statutes and
the underlying policies of the penal code, the justification
offered for overruling Saufua, id. at 8, is not persuasive."
% the Chief Justica’s dissent alec criticizes reliance on Saufva.
‘$28 Moon, C.J.y dissenting at 1-9, According to hin, “the gautsa coare
Believed that ies § 706-606.5 permitted the sentencing court to impose =
mntence on the underlying offense to run consecutive(1y] to that of the orior
offense.” 1d. at 9 (enpnases in original). However, the Chief Justice
Concludes that “Gautua is distinguishable from, and inapplicable to” this case
because *[Petitioner's] case involves only the sentence for the underlying
Offense(.]” Id. at 9. Respectfully, this aisapprehends the degree to which
Fellance 1s placed on’ sautua.
Relative to this matter, Saufua is cited because it implicitly
approved of the inposition of consecutive indeterminate maximum sentences. To
repeat, that court explained that, with respect to mandatory mininlum
Sentences, “the required period of unparoled imprisonment [, ina the
mandatory minimum cerm,] is gubsuned Within the aximun sentence{.J”" Sautua
6? Haw. st 619, 695 P.2d at S91 (emphasis added). This supports the
Gonclusion that mandatory minimum sentences cannot be severed fron the
Gndeterminate maximum sentences of which they area part. The Saufua court
wont on to hold that the sentence inposed for the subsequent conviction could
Be'run consecutively to the sentence imposed for the prior conviction under
Rs §"706-606.5. Ld.
Thus, Saitua had determined that the mandatory ainimum and
Andeterminate maximum components of a sentence could not be separated, Under
Suutua, the mandatory minimm sentence for the subsequent conviction can be
Fun consecutively to the sentence for the prisr conviction. Because that
andatory minimum ia part of an indeterminate maximum sentence, the
Undeterainate maximum must be serves in the same manner as the mandatory
‘minimum. Thus, under gaufua, when the mandatory minimin sentence imposes for
the subsequent’ conviction is ordered to be run consecutsvely to che sentence
imposed for the prior conviction, it follows that the indeterminate maximum
Component of the sentence for the subsequent conviction would also run
Eonsecutively £9 the sentence for the prior conviction.
This court, via gaufua then, had previous to the instant cai
affirmed that the indeterminate maximun sentences for separste convictions
Gould run consecutively inasmuch as the mandatory minimums could not be
treated as sentences separate from the indeterminate maximuns to which they
Felated. Because the mandatory minimums and indeterainate maximums imposed
for individual counts comprising a subsequent conviction are similarly
inseparable, it follows that indeterminate nayimun sentences for the
individval count comprised An's single conviction must be imposed
consecutively to each other where the corresponding mandstory minimins are
also inposed consecutively to each other. In that way, gautua, although not
Girectiy on point, is analogous and appliceble to the instant case.
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©.
Somewhat analogously," this court recently held that
the “notwithstanding . . . any other law to the contrary” clause
in HRS § 706-606.5(1), as in this case, must govern, even over a
narrower sentencing provision, and that it should be given effect
“in all cases.” In Smith, the sentencing court initially
indicated uncertainty regarding whether the “notwithstanding
. . any other law to the contrary” caveat in HRS § 706-606.5
rendered HRS § 706-622.5 (Supp. 2002), which made certain first
time drug offenders eligible for probation, inapplicable in cases
where the defendant was a repeat offender, but a first time drug
offender. 103 Hawai'i at 231, 81 P.3d at 411. on
reconsideration, defendant
contended that the circeit court should have sentenced her
fea five-year tern of probation pursuant to HRS 5
706-622.5,.. . arguing that, as evidenced by the statute's
gugtice Levinson criticizes this rellance on Smith. Levinson, J.
dissenting se 10-11. Respectfully, this misapprenends the importance
attributed to that case, which we View as being alalogous to the instant case,
The gist of the dissent’s criticism appears to be thst Saith and its progeny
Gis not address the precise question Faised herein, i.ea, whether HRS § 706-
Goe.5(3) controls over HRS § 706-668 for purposes Of Seitencing Petitioner.
ag Levinson, J., dissenting at 10-11, il n.¢. However, Smith, State v. Aaiz,
TYE Hawai't 19, 65 p.a 980 (2007), and Staxe_v. Walker, 106 Hawai'i 1, Too
34.595 (2004), are similar in that they raised questions of the relationship
of HRS § 106-606.5(3) to other sentencing provisions. Jee discussion Ania at
33-34. “in that connection, this court held that HRS § 706-606.5(3) prevails
over other sentencing provisions “ip all casea|,)” Smith, 103 Hawai'i at 234,
81 8.33 at 414 (emphasis added), which manifestly ipeludes the instant case.
‘Justice Levingon attempts to further distingsish these cases a
vstandling) for the self-evident proposition that a defendant cannot be
sentenced to probation and a mandatory minimum term of imprisonment at the
Sune tine,” Lovingon, J-, dissenting at Il nef, such that auch and ite
progeny are not analogous to the instant case in any “mesningéul wayl,]” ide
However, thio argument is not persuasive inasmuch as it does not address the
fact that, as in this case, this court in SEith and its progeny considered the
role of HRS § 706-606.5 as part of the entire statutory sentencing echene.
Thus, Saith and les progeny are instructive on the issue now before us.
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‘veccides the repeat offender statute, oa set forth in HRS
ESPEESES Sith farther asserted that any _aabignity with
Fespect to the application of HRS $5 706-622-5 and =606.5,
should be resolved in favor of lenity,
Ad. at 232, 81 P.3d at 412 (emphasis added). However, the
cdreuit court concluded that “when the legislature provided for
treatment for first-time drug offenders, [it] did not mean to
preclude the application of repeat offender sentencing.” Id.
on appeal, to reiterate, this court affirmed that HRS
§ 106-606.5 was applicable despite HRS § 706-662.5, and further
held that “ig all cases in which HRS § 706-606.5 is applicable,
the circuit courts must sentence defendants pursuant to the
provisions of HRS § 706-606.5." Id. at 234, @1 P.3d at 414
(emphasis added) .
In the present matter, HRS § 706-606.5(1) states that the
repeat Offender statute applies “notwithstanding . . . any
other Law to the contrary. we RLenough ies
§ 706-622.5 does contain a similar phrase, che language of
the first-tine drug offender statute, as compared to the
foregoing wording of the repeat offender statute, is
markedly narrower in scope: "Notwithatanding any penalty or
Sentencing provision under part IV of chapter 712 =
ot! uis"¢ Teepe, S taquires application of the repeat
hold that the circuit court dia not errin sentencing Smith
as a repeat offender pursuant to lIRS $ 706-6065.
Furthermore, re 206
06.5 12 anol teal hi
‘Gefendants pursuant to the exovisions of HAS $ 706-6065.
Ids (brackets omitted) (emphases added). The case now before
% RS § 706-659, requiring that all clase A felonies be subject to a
haxinun indeterminate twenty-year term of imprisonment, and ARS § 706-606.5,
Tavolves sentencing £2r certain felonies, including raps and sodoy,
provide that their provisions shali be effective "notwithstanding aty
Sther law to the contrary." The preclusion of “suspension of sentence and
probation” ae sentencing options in the language of HRS § 706-659 is
Understandable in light of the requirenent that an indeterminate prison term
(Gontinved.--)
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us falls squarely within the category of cases in which HRS §
106-606.5 is applicable and, consistent with Saufua and Smith,
that section must be applied to Petitioner. Ses also Reis, 115
Hawai'i at 98, 165 P.3d at 999 (holding that, under smith and
Walker, and because the defendant “conceded that she qualified as
a repeat offender under HRS § 706-606.5," the sentencing court
“was required to apply HRS § 706-606.5” (emphasis added));
Walker, 106 Hawai'i at 9, 100 P.3d at 603 (holding that, pursuant
to Smith, the sentencing court “erred in sentencing [the
defendant] pursuant to HRS § 706-622.5 instead of applying HRS
§ 706-606.5" (internal citation omitted)); State v. Delmondo, 67
Haw. 531, 533, 696 P.2d 344, 346 (1985) (holding that where the
court made an affirmative finding that the defendant was a repeat
offender, it “was dutv bound to impose a mandatory minimun
sentence” (emphasis added)); State v. Freitas, 61 Haw. 262, 277,
60 P.2d 914, 925 (1985) (contrasting HRS § 706-662, pertaining to
extended term sentences, which “is discretionary,” with HRS
$ 706-606.5, which “is a mandatory sentencing statute and admits
ofno discretion” (emphasis added)); State v. Kanamu, 107
Hawai'i 268, 271, 112 P.3d 754, 757 (App. 2005) (rejecting as
“lack{ing] merit” the defendant’s argument that he should have
%(., .continued)
is mandated. However, it is unclear why HRS § 706-606.5 is expressly re!
to in the “notwithstanding” clause of HAS § 706-659 inasmuch ao HRS § 706~
606.5 applies to concurrent and consecutive sentences, and would not appear to
Gonfiice with HRS § 706-659.
red
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been sentenced under HRS § 706-622.5 rather than HRS § 706-606.5
because of the former statute’s intent “to rehabilitate drug
users rather than incarcerate then” on the ground that “HRS
§ 706-606.5, by its plain and unambiguous language, applies
notwithstanding the sentencing provisions of HRS § 706-606.5"
(quoting Smith, 103 Hawai'i at 234, 61 P.3d at 414) (internal
quotation marks, internal citation, and other citation
omitted) )).
Hence, to repeat, by virtue of the directive
“notwithstanding . . . any other law" present in HRS § 706-606.5,
where mandatory minimum terms are imposed consecutively in the
discretion of the court, indeterminate maxinun sentences must
also run consecutively despite (iie., “notwithstanding”) HRS
§ 706-668 because mandatory minimums are part of, or incorporated
within, the period or term of the indeterminate maximum sentence
involved, and indeterminate maximum terns must run consecutively
in order for the mandatory minimum sentence to be imposed
consecutively as permitted by HRS § 706-606.5. Any other view
would be inconsistent with the approach taken in Saufua and
‘smith.
vr.
Chief Justice Moon's dissent disagrees with the
conclusion that “under [HRS] $$ 706-606.5 (1985) and 706-668(1)
(1976), . . . [the court) was authorized to impose consecutive
indeterminate maximum terms of imprisonment.” Moon, C.J.
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dissenting at 1. He argues that (1) the plain language of Has
§ 706-668 (1) required that Petitioner's three indeterminate
maximum terms be served concurrently, (2) HRS § 706-606.5(3) does
not, by its terms, permit the imposition of consecutive
indeterminate maximum sentences, and (3) the holding in State v
Tavares, 63 Haw. 503, 630 P.2d 633 (1981), supports these
argunents.
Initially, it must be noted that Petitioner did not
raise this issue to this court or to the ICA. Thus, it may only
be considered under the doctrine of plain error.” See Hawaii
Rules of Appellate Procedure (HRAP) Rule 40.1 (providing that,
when an issue is not presented in accordance with the appellate
rules, this court, “at its option, may notice a plain error not
presented”); see also Hawai'l Rules of Penal Procedure (HRPP)
Rule $2(b) (2007) ("Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the
attention of the court.”).
2 the chief Justice maintains that “resort to plain weolly
unnecessary” because “(t]he question [of] whether [Petitioner's] consecutive
Snseterainate maximun terms uae lawful is the precise issue oefore this
court (.)" Moon, CuJuy digsenting at 6 Respectfully, the Chief Justice’s
Sievert raises & thesty of error not advanced by the parties.” Specifically,
his dissent maintains that the multiple counts/one conviction rule embodied’ in
Tavares requires that the Andeterminate maximum sentences be run concurrently.
Xs noted in the discussion supra, the parties did not argue that Petitioner's
Sentence viclated Zavares. “Thus, any violation of Tavazas would have to be
treated as plain error. owever, as discussed nica, the sentences aid mot,
in fact, vislate Tavares insofar’ as Petitioner's convictions on all three
counts were trested af his second conviction for purposes of repeat offender
Sentencing, iue., the convictions on all three counts were treated as a single
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However, the Chief Justice has not offered any basis
for taking notice under the plain error rule. Moreover, because
none of the parties raised plain error here or below there is no
discernible argument on this point for this court to review. See
Citicorp Mortasae, Inc. v. Bartolome, 94 Hawai'i 422, 435, 16
P.3d 827, 840 (App. 2000) (concluding that appellants made no
discernible argument because “[tJhey cite(d) no apposite
authority and [made] no coherent argument on the issue from
cognizable precedent” (citing HRAP Rule 28(b) (7) (1999))). But,
to the extent that this proposition is raised, it must be
respectfully disagreed that Tavares” prohibits the imposition of
% tm their submissions to the ICA and to this court, the parties
discuss Tavages for the proposition that conviction an a maleicount.inaictnent
Scnstitutes ony.» single “conviction” under HRS § 706-€06.5, in 1ight of the
SEEEECISS Sethe “case contained Sp Cosnaiio and budgie. in’his Apgiicstion,
Fetitioner maintained that; because the Latter cases were decided efter
itioner committed the underlying offena feerpreeation of HRS § 706
606.5 expressed in Tavares must control hi icing. (Arguing that. the
court Improperly “clreuavent (ed). =. the Zavarea holding” by relying on
GGrneiio’ ent palose, wnich “simply Say Zavazea should have been decided
Gifferenciy(.]*1_ fa this connection, Fetitioner correctly explained that
held tehat convictions on several counts of an indicenent are to be
Teated os one conviction for repest offender purposes. However, Petitioner
does not elaborate on the eefect' thie rule ahotid have on his sentence. in
Sther words, fetitioner does not sesert the position adopted by the chief
Suatice’s dlesent.
Onvehe other hand, Respondent argued that this court later
corrected staeif, "aot{ing) that. the correct. ‘interpretation of the Language
Of the statste 9 thet a conviction on each count of en indictment represents
Siseparate conviction for the purposes of adding up the number of convictions
for sentencing.’" (Quoting Dugait, 30 Hawai'i at 271-73, 978 P.2d at 70S-11-)
‘Thus, according to Respondent and Contrary to Chief Justice Woon’ s position,
the Court wae suthorised fo inpose mandatory minimum sentences for each of the
felony counts of which Petitioner waa convicted
However, in this context, Respondent's reliance on Qudoit is
misplaced. Dudsit is distinguishable Sn thet it ineerpreved a Fepest offences
Statute, HRs" 706-906(5) (supp. 1997), with Language markedly different. from
fhe language of HRS §,106-696.5. “Spacificaily, the provisions st issue sn
Dudalt mandated speci tic prison terme for repest gftanges of that statute
Eugats, "30 fanos'l at 265, 976.24 at 003. The defendant in Gudoit argsed
Phat, porevant co Tavazad, “offences” 92 Used in HRS § 706-206(5) shoals be
equated with “convictions” as defined in Zayares.” Lda at 264, 978 F.2d at
{Gontinved...)
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consecutive indeterminate maximum tezms of imprisonment.
vir.
a
The defendant in Tavares had been previously charged
with two counts of burglary in a single indictment (the 1975
burglaries). 63 Haw. at 510, 630 P.2d at 634-35. He pled guilty
and judgment was entered on both counts in 1975. Id. at $10, 630
P.2d at 635. Subsequently, the defendant was charged with a
single count of burglary (1979 burglary) and convicted. Id, at
510, €30 P.2d at 634. At defendant's sentencing for the 1979
burglary, the sentencing court determined that the defendant had
2. .continued}
702. tis court arguments on the ground that (1) Tavares was
ietinguishable because it intexpreted the cerm “conviction” as opposed to
“offense,” and (2) this court had repudiated the reasoning of Tavazes in
Gamslic; end would have overruled Zavarea but for the legislative anendsents
that had essentially adopted the Tavares interpretation of “conviction.” a.
at 272-73, 978 P.2d at 710i, Inasmuch ae the court in Dudait expresely
Sistinguisned MRS § 106-906 (5} and HRS $ 106-606.5, that case cannot be relied
pen in the instant case to interpret the latter statute.
In any event, it Ls evident that, at the tise Petitioner committed
the subsequent offenses, Zauaree was precedent. However, as discussed herein,
{te application 1a nore linseed than the chief Justice would hold. For
purposes of calculating whether the subsequent conviction consticuted
Petitioner’ s second or third conviction for purposes of HRS § 706-606.5,
Tavares dictates that the three felony counts, Lec, Counts VI, IK, and’ XE,
re to be counted az a single conviction. On’ the other hand, contrary to the
Ghief Justice's position, favares does not impinge on the court's authority fo
impose a sentence that it deems appropriate for each separate count of the
Unaictnent on the grounds set forth anes.
‘The chief Justice also quote: a lengthy passage from Comelic in
wnich the Tavares court is criticized for ignoring the plain and onamotguous
Yanguage of the statute in “holding that convictions on several counts of an
indictment are to be treated as only one conviction for the purpores of (HRS
S$] 706-606.5(1)." Moon, CvJ., dissenting at 3 (quoting Comelie, 4 await
at 491, 936 F.2d at 1036 (quoting Tavares, 62 Haw. at 911-12, 915, 630 P.2d at
635-37}) [internal quotation marks omitted). Nevertheless, he concedes that’
Gormelic di¢ not expressly overrule Tavares because “the legislature, in 1966,
had amended HRS § 706-€06,5 subsequent to Tavares in a manner essentially
Consistent with that decision’s approach to the statute(,)" implying that
Sornslio otherwise would have overruled Zavares. Moon, C.J., dissenting at 3-
PfEleing 1386 haw, Sess. L. Act 314, § 17 at €00-02) (emphasis omitted)
38
‘se+70R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERY:
two prior convictions, ists, the two 1975 burglaries. Id. at
510, 630 P.2d at 635, The sentencing court then decided that the
1979 burglary conviction was the defendant’s third conviction,
such that, under HRS § 106-606.5(1) (b), a ten-year mandatory
minimum term of imprisonment was required. Id.
on appeal, the defendant argued that the two counts
from the 1975 burglary should have been considered a single
conviction for purposes of HRS § 706-606.5 because he had been
convicted on both counts on the same day. Id. According to the
defendant, it would follow that the 1979 burglary conviction
would be considered the second conviction, not the third
conviction, and the defendant would be subject only to a five~
year mandatory minimum term of imprisonment rather than the ten
year mandatory minimum term that had been imposed. Id, at 511,
630 P.2d at 635.
‘Thus, the issue before the Tavares court was “whether a
conviction on the second count of a two-count indictment
constitutes a separate conviction under Hawaii‘s repeat offender
statute[.]” Id. at 509, 630 P.2d at 634. Ultimately, this court
agreed with that position and held “that convictions on several
counts of an indictment are to be treated as only one conviction
for the purposes of [HRS §] 706-606.5(1)." Id, at 515, 630 P.2d
at 637.
39
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS**
‘The Chief Justice maintains that pursuant to Tavares,
Counts VI, IX, and XI in the instant case constitute a single
conviction for purposes of HRS § 706-606.5, and, because they
were imposed at the same time, HRS § 706-668 requires that the
sentences be served concurrently. However, this (1) misapplies
the holding of Tavares, (2) disregards the language of HRS § 706-
606.5, and (3) impermissibly severs the mandatory minimum terms
of imprisonment from the indeterminate maximums of which they are
a part.
vin.
As to item (1), because Petitioner was charged with the
pertinent two counts of rape and single count of sodomy in the
sane indictment, his convictions on those three counts would
constitute a single conviction for purposes of the repeat
offender statute under Tavares. See Tavares, 63 Haw, at 515, 630
P.2d at 637. Petitioner had one prior felony conviction (the
firearm conviction) and therefore, for purposes of determining
the applicable mandatory minimum sentence pursuant to HRS § 706-
606.5, the instant counts in total would be considered his second
conviction. Under Tavares then, it would have been incorrect in
the instant case for the court to sentence Petitioner to a five-
year mandatory minimum on Count VI as the second conviction, and
then to impose a ten-year mandatory minimum for Count IX by
40
*/0FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**+
designating it as the third conviction for repeat offender
purposes.
However, that is not what happened in this case.
Consistent with Tavares, Petitioner was, in fact, sentenced to
five-year mandatory minimum terms of imprisonment for the crimes
consistent with a second conviction (taking all three counts as
comprising one conviction). The court did not impose any ten-
year mandatory minimum terms, which could only be imposed upon a
third conviction as defined by Tavares. Thus, Petitioner's
sentence did not violate the rule set forth in Tavares.
Manifestiy, Tavares did not expressly consider the
treatment of individual sentences for each count in a multicount
indictment. In that case, because the defendant’s second
conviction was comprised of only a single count of burglary, he
was subject to only one mandatory term of imprisonment. Thus,
the Tavares court did not have occasion to address whether a
defendant whose second or third felony conviction arose from a
multicount indictment would be subject to multiple mandatory
minimum terms pursuant to HRS § 706-606.5, Inasmuch as the issue
was not reached, it cannot be said logically that the holding in
Tavares prohibits a court from imposing the applicable mandatory
minimum sentence for each count that makes up a single
conviction. Tavares, therefore, is not inconsistent with the
result reached herein.
a
FOR PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REPORTER:
Nevertheless, the dissent contends that because, “in
the present case, [Clounts [VI], (1X], and [XI] constitute one
conviction,” Petitioner was subject only “to a single five-year
mandatory minimum term of imprisonment Moon, C-Jus
dissenting at 7 (first emphasis in original) (second emphasis
added). Insofar as this implies that the mandatory minimum term
of imprisonment does not apply to each count comprising a second
or third felony conviction under HRS § 706-606.5, it would be
legally incorrect. See State v. Buch, 83 Hawai'i 308, 326, 926
P.2d $99, 617 (1996) (explaining that “[e]very [statutory]
construction which leads to an absurdity shall be rejected”
(quoting HRS $ 1-15(3) (1993)) (brackets in original)). This
would be violative of the sentencing policies underlying the HPC
and contrary to the established principle that courts impose
distinct punishments for each count on which a defendant is
convicted.
> see gigs, Barnett v. State, $1 Hawai'i 20, 24, 979 P.24 1046, 1050
(2999) (defendant was charged ina forty-count indictment, and pursuant to a
plea agreement was "gontenced in Counts 1, 13, 21, 36, and 40 to five years in
Imprisonment. |. (a)nd aucouite Sid 16 16, 26 26, 31, 34 and 32,
to. + ilfe imprisonment” (emphases added)); State v. Spussle- 66
fawai's 433, 437, 967 B.2d 265, 269 (1996) (defendant was charged with two
counts ina single indictment, found guilty of both, and “sentenced to twenty
years incarceration gh count one and five years on Count cu” expnases
Sased))7 State c, Lohargs, eT Hawas's 293, 296, S16 P.23 703, 706 (1996)
(defendant was charged in 2 six-count indictment, found guilty on 11 counts,
ans “gantanced £0 s tere of inprisorsent of twenty years oh count one, - ~
ang co-senarate terns of life inprisonment for counts
fengnases asded))? State v. Yamada, 116 Havar't (22, @i, 173 F.3d 5e3, 578
(app. 2007), (after defendant was convicted on a three-count indictment, the
court “sentenced [bin] ‘to two twenty-year terns for Counts One and Three, and
ten-year term £o¢ count Twa” (enphases adced) ); state 2. Eaaaragan, 115
Mawai't 364, 365, 167 Fuad 733, 740 (App. 2007) (defendant was charged with
three offeriscs in a single docunant, found guilty and sentenced to “two terms
42
FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTERI+#
Consequently, when a repeat offender is convicted of
multiple offenses enumerated in the same charging document, he oF
she 1s subject to distinct sentences addressed to each count. If
the defendant was a repeat offender under HRS $ 706-606.5, the
sentences applicable to those counts would be a five year
mandatory minimum term (for a second conviction) or a ten-year
mandatory minimum term (for a third conviction). Thus, when a
repeat offender’s subsequent conviction is comprised of multiple
counts, he or she is subject to mandatory minimum terms of
imprisonment for each count on which he or she is adjudged to be
guilty.
D(. . continued)
of twenty jears (Counts One and Two), and one term of five years (Count
} (enphases addea)) 24 Hawat't 162, 164, 158 P.34
Thea) Hiatew. icener,
2Ho, 262 (app. 2006) (defendant “was charged by Indictment with munerous drug
land’ drug paraphernalia offenses(, ]* found guilty, and was “sentenced to twenty
yours’ inpriacnment on count —L, with a mandatory minimum term of five yearsy
Hen years’ imprisonaen® on Count 3: tive years’ imprisorment on each of counts
2a. Ts and 6” (emphases added) |; 120 Hawar's 129,
TST Psa Ti87 1153 app. 2006). (setenaant twas charged in an
eleven-count indictment|,|” convicted of four offenses, and “sentenced on each
‘si-couste lang 10 to a ten-year term of inpriscament (Gna) on counte
GndLL1 to five-year terns of imprisonment” (emphases added) }; state ¥. Martin,
T03-Hawai's 66, 70, 79 F.3d 686, 688 (App. 2003) (after defendant wae
convicted on 4 tud-count indictuent, he was sentenced “to imprisonment for ten
Yours anveach count” (emphosis added) ); Stace v. Mara, 102 Hawai'i 346, 348,
yeers8 583, Soi (hop. 2003) (atter defendant pled guilty to all the charges
contained in a three-count indictment, he was sentenced ro “ten years"
incarceration on Counts T and IT and twenty years’ incarceration gn Count ILI”
(emphases added); state w, Vinuua, 96 Hawaii 472, 476, 478, 32 P.3a 116,
120; 122, (App. 2001) {defendant was charged in a rulticount complaint, found
guilty on five counts, and sentenced "to an extended indeterminate term of
Imprisonment of ten years oo count ong, a twenty-year indeterminate term of
inpeldcrment wich & Aandacory suninun term Of six years and elght nonthe an
‘ount-tu0, a ten-year indeterminate term of imprisrment an each of counts
ise and tour, and a five-year indeterainate term of imprivonnent ao-count
emphases added)): State v, Palabay, 9 Haw. App. 414, 420, 844 Pod t, S
{235e Udetondant wae! chatgod Ina seven- count Indictnenty' convicted oi a1!’
counts and “aantensed te prison for'a term of twenty (20)'years for coun
five (5) ys R Eor Counts 2 3. and 4, and thirty (30) days each Lor
Counts 5, "band's" Temphasee satect=
43
‘S+#FOR PUBLICATION IN MEST’ HAMA'T REPORTS AND PACIFIC REPORTER*+#
8
As additional support for the argument that
indeterminate maximum terms for individual counts of a single
conviction cannot be run consecutively to each other, the Chief
Justice relies on Cornelio. Respectfully, this reliance on
Gomelio is misplaced.
‘The question presented in Cornelio was “whether .
the sentencing court properly ran (Cornelio’s) mandatory minimum
sentences imposed under HRS § 706-606.5 (Counts 2-5)
consecutive(ly] to each other{] and consecutive(1y] to the
mandatory minimum sentence imposed under HRS § 706-606.1 (Count,
1)." 84 Hawai'i at 483, 935 P.2d at 1028 (footnote omitted)
(ellipsis and brackets in original). The court in Cornelio did
not consider the propriety of the consecutive indeterminate
maximum sentences imposed on the defendant, but vacated the
sentence on other grounds, specifically, as the Chief Justice
notes, “that HRS § 706-606.5(3) [*] divests a sentencing court of
the authority to impose consecutive mandatory minimum periods of
imprisonment on a defendant convicted of multiple felony counts
charged in the same indictment or complaint.” Id, at 494, 395
P.2d at 1039 (internal quotation marks omitted). This holding
was grounded in this court's determination that the 1986
the version of the repeat offender sentencing statute construed in
SpmagLis provided, in pertinent part, that *{t]he sentencing court may. impo
the above’ sentences tence impose
prick conviction, bub such sentence shall be imposed concurrent to the
sentence impased {or the instant conviction... .” (Eepheses added.)
44
se+7OR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERY*#
revisions” to HRS § 706-606.5 indicated “a presumptive
legislative preference for concurrent sentencing with respect to
multiple terms of imprisonment imposed at the same time.” Id. at
493, 935 P.2d at 1038 (internal quotation marks omitted) .
But significantly, the version of HRS $ 706-606.5(3) in
effect at the time Petitioner committed the subsequent offenses,
was substantively different from the version considered in
Cornelio. The operative language of the 1985 version of the
statute, which is applicable to Petitioner, provided, in
pertinent part, that “(t]he sentencing court may impose the above
sentences consecutive to any other sentence then or previously
imposed on the defendant[.]” HRS § 706-606.5 (emphases added).
Contrastingly, the version of the same statute construed in
Cotnelio, HRS § 706-606.5(4) (1993 § Supp. 1996), provided that
“[t]he sentencing court may impose the above sentences
consecutive to any sentence imposed on the defendant for a prior
conviction, but such sentence shall be imposed concurrent to the
sentence imposed for the inatant conviction... .” (Emphases
added.) Thus, the version of HRS § 706-606.5 construed in
Tavares and applicable here, expressly permitted sentences
imposed at the same tine to be run concurrently whereas the
® ag noted previously, the 1986 revisions codified the holding in
Tavares, aes Coingli, 64 Hawai'i at 492, 935 P.24 at 1037 (citing State,
Gavlera, Te nawat't 127, 143," 690 P.2 1167, 1169 (1995}), *enae convictions
Sr several counts of an indictment are to be treated ae only one conviction
for the purposes of section 706-606.5(1)[/]* 4d at 491, 988 Prid at 1036
[quoting Tavares, €3 Haw. st S1i-15, €30 P.2d at 635-37
45
version of the same statute construed in Cornelio expressly
prohibited this.
In Cornelio, this court explained the implications of
the prior version of HRS § 706-606.5(3), which is applicable to
Petitioner, thusly: “by its plain language, ‘any other sentence
then . . . imposed on the defendant[,]' . . . necessarily
included mandatory minimum periods of imprisonment presently
being ordered in connection with convictions resulting from
multicount indictments or complaints.” 84 Hawai'i at 489, 935
P.2d at 1034 (emphases in original). Thus, Cornelio confirms
that the interpretation of HRS § 706-606.5(3) employed herein is
correct under Tavares, which is the law applicable to Petitioner.
Comelio further explained that, among the effects of the
amendments made to that section in 1986, the deletion of the
authorization to order sentences “then . . . imposed on the
defendant” to run consecutively and the addition of a mandate
that mandatory minimum sentences “be imposed concurrent to the
sentence imposed for the instant conviction[,]” “manifests al]
. clear legislative intent that @ sentencing court be
required to order that any such mandatory minimum( terms] run
concurrently with respect to the instant conviction.” Id. at
493, 935 P.2d 1038 (emphasis in original) (internal quotation
marks omitted). Because the statute in effect at the tine of
Petitioner’s sentencing expressly authorized the court to impose
46
‘se+F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER?’
consecutive sentences for each of the offenses enumerated in the
charging document, and the statute applicable in Cornelio did
not, Cornelio’s holding is not pertinent to Petitioner's case.
rm.
As to item (2), the Chief Justice’s dissent disregards
the explicit provision in HRS § 706-606.5 mandating that that
statute controls for purposes of sentencing repeat offenders
“notwithstanding . . . any other law to the contrary,” including
URS § 706-668. As a result, the mandate in the latter statute
that sentences imposed at the sane time be served concurrently is
not controlling with respect to sentences rendered pursuant to
HRS § 706-606.5. To reiterate, in that connection, HRS § 706-
606.5(3) provides that mandatory minimum terms of imprisonment
may be imposed consecutively to any other sentence “then or
previously imposed on the defendant|.]” (Emphasis added.) Thus,
under that statute, when multiple mandatory minimum terms are
imposed at the same time, the court, in its discretion, may order
those terms to run consecutively to each other. Thus, contrary
to the Chief Justice's argument, the plain language of HRS § 706-
606.5(3) authorizes sentencing courts to impose consecutive
mandatory minimum terms of imprisonment for each count of a
multicount indictment, “notwithstanding” the mandate in HRS
§ 106-668 that sentences imposed at the same time be served
concurrently.
0
YOR PUBLICATION IN WES2’S IAWAL'E REPORTS AND PACIFIC REPORTERE*+
x
As to iten (3), the mandatory minimum terms imposed
pursuant to HRS $ 706-606.5 are necessarily a part of the
indeterminate maximum terms with which they are associated. As
discussed in this opinion, the two components of the total
sentence cannot be treated as separate sentences. Thus, inasmuch
as HRS § 706-606.5(3) permits the imposition of consecutive
mandatory minimum terms, any concomitant indeterminate maximum
sentence must also be served consecutively. Based on the
foregoing, the Chief Justice's conclusion that Petitioner could
only have been sentenced to three concurrent indeterminate
maximum terms of imprisonment cannot be supported.
xr.
AL
Finally, the Chief Justice dissents from the conclusion
that Petitioner's mandatory minimum terms for Counts VI, IX, and
XI could be run consecutively to each other. Moon, C.J.,
dissenting at 6. The Chief Justice argues that
mandatory minimums for multiple counts in one indictment --
Tike indeterminate raximin terms =~ must alse be served
Concurrently under the holding in Tavares. Stated
Gifferently, the mandatory minimums under HRS § 706-606.5
can run consecutive(iy] to only the sentence for the prior
[conviction] under Iazaxaa’ definition of conviction. Thus,
applying Zavaxas to the present case, Counts [VI], [IX], and
TAI] constitute aie conviction, thereby subjecting
[Petitioner] to a single five-year mandatory minimum term of
Imprisonment (as a second tine offender under HRS § 706~
606.5(1) (al, the first [conviction] being his prior firearms
conviction):
Id. at 7.
ae
‘s#470R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER?
With all due respect, this position suffers from the
same defects as that dissent’s arguments related to the manner in
which Petitioner's indeterminate maximum terms must be served.
First, it extends the holding of Tavares to an issue not
addressed by that opinion. The Tavares court's inquiry was
Limited to the appropriate method of calculating the number of
convictions 2 particular defendant had for purposes of
determining whether that defendant should be sentenced as a
second time offender or a third time offender under the repeat
offender statute. Thus, the holding in Tavares is not related to
the issue of how mandatory minimum terms imposed pursuant to the
repeat offender statute should be served.
Second, this position flies in the face of the plain
Language of HRS § 706-606.5 itself, which expressly states that
mandatory minimum terms imposed pursuant to it may be ordered to
run “consecutive to any other sentences then or previously
Amposed.” HRS § 706-606.5(3) (emphases added). Inasmuch as the
sentences for each of the counts charged in a single indictment
are considered part of a single conviction pursuant to Tavares
and are imposed at the same time, each of those sentences can be
categorized as “other sentences then . . . imposed.” Id.
(emphasis added). Thus, under the plain language of HRS § 706-
606.5(3), mandatory minimum terms of imprisonment for counts
49
charged in the same indictment may be run consecutively to each
other.
xIn.
As to the second question, Petitioner reiterates that
“application of (the court's} incorrect construction requires
that HRS § 706-668 be
pealed retroactively[,]” and, thus, this
violated the due process clauses of the Fifth and Fourteenth
Snendnents £0 the Unites States Constitution ae 3
Fetroactive expansion ef the scope of [Petitsoner’ 2]
Grininal Liability in violation of the x post sscte clause
Under [a]zticle 1, (aJection 10, [c]lause 1, - = (inasmuch
bo t)he ax post facts clause "is ained at lows that
Fetroactively alter the definition of crines or increase the
puniahsent far crininal acts.” Souch v, Schalvo, "269 F-34
6i6, 620 (9th cir. 2002)
(Brackets omitted.) He asserts that “the statute in effect at
the tine of the offenses allowed only concurrent maximum terms,
and disallowed consecutive terms except those comitted while
incarcerated. ‘Thus the. . . [statutory] construction that
allowed consecutive sentencing increased the punishment
retroactively[.]” Petitioner maintains that “(ulnder the law in
place at the time of his offenses, he could not be re-sentenced
to consecutive maximum terms of 20 years each for his 3 Class A
= convictions [,] . . . his sentence must be vacated and the
[clourt ordered to resentence [Petitioner] to concurrent 20-year
terms as to Counts 6 9, and 11." This argument, of course,
rests on the premise that HRS § 706-606.5(3) was incorrectly
applied to Petitioner at the time of his sentencing. Inasmuch as
it has been determined herein that HRS § 706-606.5(3), properly
construed (ise, giving effect to the “notwithstanding . . . any
50
JFOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTERY*#
law to the contrary” clause), does apply to Petitioner,
Petitioner's argument on this question is wrong.
Based on the foregoing, the ICA's January 3, 2008
judgment is affirmed.
Mary Ann Barnard for Ree ON ex
petitioner /defendant~ He OG Ot
appeliant.
Donn R. Fudo, Deputy A a X
Prosecuting Attorney,
city and County ‘
Of Honoluta, Eee Coen « ya by
respondent /plaintift-
appellee.
51
| ff6378aa90274c5f7a04ec9c91a3780d82e1b72c63e7543ef3d4e68f7ef58e4b | 2008-07-23T00:00:00Z |
68cb7109-3a2a-492a-a5e4-740c645746da | Andrews v. Rosehill | null | 28744 | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 26744
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
SIV. NO. 06-1-1976-11
JIM ANDREWS and THE LANDSCAPE WORKS, INC.
Respondents/Plaintiffs-Appell
MARCUS D. E. ROSEHILL, Petitioner/Defendant Appel
ost
and
MARCUS F. ROSEHILL REVOCABLE LIVING TRUST and VI
MM. ROSEHILL REVOCABLE LIVING TRUST, dated
Decenber 23, 1986, Defendants-Appellants.
vt
MARCUS ROSEHILL, Trustee of the MARCUS F. ROSEHILL
REVOCABLE LIVING TRUST and VIOLET MARIE M.
ROSEHILL REVOCABLE LIVING TRUST, Plaintiffs,
STM ANDREWS and THE LANDSCAPE WORKS, INC., Defendants.
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CIV. NOS. 06-1-1976-11 & 06-1-1982-11)
(By: Moon, C.J. for the court)
Petitioner/defendant-appellant Marcus D.E. Rosehill’s
application for writ of certiorari, filed on May 8, 2008, is
hereby rejected.
DATED: Honolulu, Hawai'i, May 28, 2008.
Dp
Levinson, Nakayama, Acoba, and Duffy, 39.
> considered by: Moon, C03
| 33c423d2397d7e05c5047ff07999827fb3c9ec43ab4f427279256e56fde25528 | 2008-05-28T00:00:00Z |
ebfc281a-7138-4fb2-ba78-b04be0e557da | State v. Holt | null | null | hawaii | Hawaii Supreme Court | No. 27924
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Plaintiff-Appellee-Respondent,
DUKE W. HOLT, Defendant-Appellant-Petitioner.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 6-1-0017)
(By: Levinson, J., for the court")
Upon consideration of the application for writ of
certiorari filed on March 6, 2008 by the defendant-appellant-
petitioner Duke W. Holt, the application is hereby rejected.
DATED: Honolulu, Hawai'i, April 18, 2008.
FOR THE COURT:
‘Taryn R, Tomasa,
for the defendant~appellant-petitioner
Duke W. Holt,
on the application
‘Walva T YHBON
Lo:6 WY GI Yad B00
Considered by: Moon, C.J. Levinson, Wa
aaws
| 709df4b6810a615aef0f6c332db8f59a673aa529509fadad7c9e4c957ea4bcad | 2008-04-18T00:00:00Z |
f1bd92ed-b47e-4d47-a796-05a6c486a262 | Capua v. Weyerhauser Company. Concurring Opinion by J. Acoba, with whom J. Nakayama joins [pdf]. ICA s.d.o., filed 09/27/2007 [pdf], 115 Haw. 476. Dissenting Opinion by J. Foley [pdf]. ICA Order of Correction, filed 10/25/2007 [pdf]. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/27/2008 [pdf]. S.Ct. Order Amending Concurring Opinion by J. Acoba, with whom J. Nakayama joins, filed 05/29/2008 [pdf]. | 117 Haw. 439 | null | 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'I
~ 000
LAN CAPUR, Petitioner/Claimant-Appellant,
WEYERHAEUSER COMPANY, Respondent /Employer-Appellee,
Self-Ineured.
NO. 26369
CERTIORARI TO THE INTERMEDIATE COURT OF APPI
(CASE NO.: AB 2001-23096-561 (29215704))
MAY 27, 2008
MOON, C.J., LEVINSON, AND DUFFY, JJ. ;
ACOBA, J., CONCURRING SEPARATELY, WITH WHO
NAKAYAMA, J., JOINS
Bh HY LZ AVR ONL
a3
OPINION OF THE COURT BY MOON, C.J.
on February 27, 2008, thie court accepted a timely
application for a writ of certiorari, filed by petitioner/
claimant-appellant Lani Capua on January 24, 2008, requesting
thie court review the Intermediate Court of Appeals’ (ICA)
October 26, 2007 judgment on appeal, entered pursuant to its
Septenber 27, 2007 sunmary disposition order (SD0). Therein, the
ICA affirmed the December 30, 2003 deciaion and order of the
Labor and Industrial Relations Appeals Board (LIRA), which, in
turn, affirmed the decision of the director of the Department of
Labor and Industrial Relations (director). Both the LIRAB and
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
the director determined that, inasmuch as Capua was previously
awarded permanent partial disability (PPD) benefits, she was
barred from receiving vocational rehabilitation (VR) services
under Hawai'i Administrative Rules (HAR) § 12-14-36 (governing
waiver of VR services under certain circumstances). Oral
argument was held on April 17, 2008.
on application, Capua challenges -- ae she did before
the ICA -- the LIRAB’s denial of VR services to her, arguing that
HAR § 12-14-36 is inconsistent with Hawai'i Revised statuti
(HRS) § 386-25 (1993) (governing an employes
#8 eligibility for VR
eervices), Based on the discussion infra, we hold that the
director exc
ded hie statutorily designated authority in
promulgating HAR § 12-14-36 and, thus, the ICA erred in affirming
the LIRAB’s December 30, 2003 decision and order. Accordingly,
we vacate the ICA’s Qctober 26, 2007 judgment on appeal and the
LIRAB’s December 30, 2003 decision and order and remand this case
to the director with instructions to provide Capua with VR
services, if she so desires at thie time.
‘BACKGROUND
A, 1e Indu the Awa BED Be
Om July 8, 1992, Capua suffered an on-the-job accident
while employed as 2 sheet catcher! by respondent /employer-
appellee Weyerhaeuser Company. Capua injured her lower back
tA sheet catcher’s responsibilities entail collecting cardboard sheets
hat come out of © sachine, measuring the cardboard sheets, and preparing them
for the finishing department to make them into boxe
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while lifting and restacking cardboard sheets that had fallen off
@ conveyor belt. On July 14, 1992, Weyerhaeuser filed a WC-1
Enployer‘s Report of Industrial Injury, indicating that Capua
“felt [a] sharp pain in [her] lower left back area” after
sattempting to lift a stack (handful) of sheets.” on August 12,
1992, Weyerha
ser filed a second WC-1 report, accepting
Liability for capua’e injury.
[eapua) continued to work until septenber of 1992,
een she was taken off work by her doctor. [eapual wae off
fork from Septenber to Novenber of 1982, and for various,
Periods thereatter. (Weyerhaeuser! provided [capual with
Eexporary light duty work upon her return and she sradeally
worked her way back to full tine status.
Although Capua eventually returned to full-time status, she
remained at her light duty position.
Some time after her July 9, 1992 injury, capua
apparently sought and was granted temporary total disability
(27D) benefice
‘Thereafter, on June 18, 1996, Capua applied for
PPD benefits. The director, on December 4, 1996, issued a
Gecision awarding Capua, inter alia, eight percent (8%) PPD of
the whole person as a result of her work injury. After she
received her PPD award, Capua continued to work at Weyerhaeuser
in her light duty position.
* _capus received TID benefits between the period of September 1, 1992
land Novenber 30, 1992. The record aleo Indicates that Capua received varying
amounts of tenporary partial disability (10) benefite between Decesber 1,
1992 and March 14, 1993. Capua received additionally 71D benefits on February
16," 1994, May 2-3, 1954, August 3-7, 1994, August 21, 1994, February 3-29,
A995, Mazen 24-25, 1995" and Auguet 1-6, 1997
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Gapua‘s Termination and the Determination of
nt to VE
Im @ letter to Capua, dated July 9, 1999, Weyerhaeuser
advised Capua
hat it would not be able to provide {her with indefinite
Light duty work, and that VR services would help her secure
alternate employment elsewhere. Since (Capua) had expressed
gu interest in VR, [leyernaeuser] advised her to contact
Laurie Nanano, a VR counselor, for services, oF any other
counselor of her choice.
On August 29, 2000, (Capua) met [Hamano) for an
initial inforeational interview, but did not at that tine
commit to selecting (Manano] as her VR provider. [Capua]
Jater interviewed two other VR counselors. By October of
2000, {Capual stiii had not decided on a VE provider:
On Octeber 13, 2000 Ineyerhaeuser’s) new human
resource manager, Alan Maeda, met with [Capua] to alec
services. [Maeda] told (Capa) that she needed to make @
decision about VR services soon. [Capua] wanted nore time
to think about VR, and promised to make a decision by
cecober 18, 2000.
ve
On the morning of October 16, 2000, Capua called Hamano and
indicated that she intended to participate in the VR process with
Hamano as her counselor. Later that afternoon, Weyerhaeuser
issued 4 letter terminating Capua from her light duty position
Thereinafter, the termination letter]. In ite termination
letter, Weyerhaeuser stated:
Although not obligated to, weyerhseuser provided you
with temporary light duty work in order to afford you tine
fo find another jeb ang further attempted vo aesiet you in
IWR). However, a8 you know, Ineyerhaeuter] does not have
“permanent” light duty work. we have only provides such
right duty work to enployees while they are locking for
replacenent enploynent.
‘Eased on your medical condition, the (clonpany ha
nade an esesonent that we have no cufrent poultion that you
would be nedically capable of fulfilling on a regular basis.
In light of your refusal to seek [VR servicesl to help
yourself in seeking alternative employment, we have 10
alternative but to terminate your temporary light duty
Potition and therefore your employment at weyerhacuser.
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upon receipt of the termination letter, Capua informed
Hamano that she had been terminated. However, Capua continued to
meet with Hamano and receive VR services because Hamano
determined that VR services were appropriate for Capua.’
Likewii
on November 21, 2000, the Department of Labor and
Industrial Relations (DLIR) Disability compen:
tion Diviaion
(Dep) made a determination that Capua was eligible for VR
services."
‘Thereafter, on November 30, 2000, pursuant to HAR
5 12-14-48," Weyerhaeuser filed its request for reconsideration
of the DcD’s determination regarding capu
eligibility for vk
services. Weyerhaeuser, relying upon HAR § 12-14-36, contended
that Capua was not entitled to VR services. HAR § 12-14-36
provides in relevant part that *[aln employee who has been issued
» specitically, Hamano testified that, in her opinion, Capua wae
qualified for VR services beceune:
Icapual had Linitations that precluded her return to what
he was doing before. Therefore, that becane part of [ay]
Getermination of it being feasible for services.
Tialso have to indicate whether or not have the
exile and knowledge to be able to seelet her to get to the
Place where she can return to work. Go at that point in the
Initial evaluation we had stated that yes. she had
Limitations, [Weyerhaeuser] stopped her from being able to
return to [the] work she was doing, she had been in Light
uty. And therefore not able to return £0 what she wae,
Going. “Therefore, you know, the was deened feasible for
‘The record provides ne specific facts regarding the events
surrounding Capua’s entrance into the VR program
® HAR § 12-14-48 (a) provides in relevant part: “Except az otherwise
provided, determinations of the rehabilitation unit are considered final
Unless a written request for reconsideration is filed with the rehabilitation
Unit within ten calendar aye from the date of the determination.”
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a (PPD) award by the director . . . is determined to have waived
the right to rehabilitation.* As such, Weyerhaeuser argued that,
because Capua had previously received an award for PPD benefits
on Decenber 4, 1996, she waived her right to VR services.
Agreeing with Weyerhaeuser, the director entered a supplemental
Gecision on Nay 8, 2001, finding that, under HAR § 12-14-36,
Capua had waived her right to VR services. Consequently, Hamano
wed providing VR services to Capua
C. Appeal to the LIRAB
on May 18, 2002, Capua appealed the director’s
supplemental decision to the LIRAB. After a hearing, held on May
23, 2003, the hearing officer entered a proposed decision and
order, pursuant to HRS § 91-11 (1993),* affirming the director's
supplemental decision. The hearing officer entered the following
proposed conclusions of law:
«mas § 91-11 provides:
Whenever in a contested case the officials of the
jency who are to render the final decision have not heard
and examined a1] of the evidence, the decision. if adverse
koa party to the proceedina other than the ascncy iteelt.
shall not be sade until a proposal for decision contaising a
‘been gerved uson the parties, and an opportunity has been
afforded to each party adversely affected to file exceptions
and present argument to the officials who are to render the
Gecision, who shall personally consider the whole record or
Such portions thereof aa may be cited by the parties.
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Pursuant to (HAR) § 12-14-36... , an employee who
been esued a 970 avard by the [ajitector is determined to
have waived the right to rehabilitation. In this case,
[Capual was awardes PPD by the. (a) irector in a Decenber 4,
1596 decision. Under (HAR) § 12-14-36, (Capua) is not
entitled to VR services. Accordingly, we conclude that the
(alirector dia not err in denying [Capua] VR services,
(Weyerhseuser's] offer of YR after PPD vas awarded was
gratuitous and not required by lav. However, ‘having made
the offer of VR, and having agreed to an October 18, 2000
Geadline for lCapual to accept vk, [Weyerhaeuser] could have
acted nore honorably in this case:
Both Capua and Weyerhaeuser filed exceptions to the proposed
decision and order in accordance with HRS § 91-11, quoted eupra
note 6. On December 29, 2003, a hearing was held, wherein Capua
argued, inter alia, that HAR § 12-14-36 could not serve as a
ground to deny her VR services because HAR § 12-14-36 was
“inconsistent” with HRS § 386-25. At the time of Capua’s
disability, HRS § 386-25 (1953) provided in relevant part:
(b) the director shall refer emlovess who may have
‘px have autfered permanent disability ss « result of work
Injuries and who in the director's opinion can be physically
or vocationaliy rehabilitated to the dezartaant of himaa
pervices or to private providers of Tebsbiiication services
for such physical ano vocational rehabilitation services a2
arefeasibie.
igi ‘the eliginitity of any injured employee to
xeceive other benefite under this chapter shall in no way be
‘by the employee's entrance upon a course of
Physics! or yocatienal rehabilitation as herein provided:
(Emp
9 added.) In essence, Capua argued that HAR § 12-14-36
conflicted with HRS § 386-25. Conversely, Weyerhaeuser contended
that, inasmuch as HAR § 12-14-36 was “clear* and ‘unambiguous, *
there was "no room for exceptions." On December 30, 2003, the
hearing officer issued an order, adopting the proposed decision
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and order in toto. Thereafter, Capua filed her notice of appeal
with the ICA, pursuant to HRS § 386-88 (Supp. 2007).”
D. Appeal _Before the ICA
On direct appeal, Capua argued, inter alia, that HAR
§ 12-14-36 *[was] invalid ae inconsistent with the Hawai'i
[wlorkers’ (c]ompen:
tion [1]aw." Weyerha
\ser responded that
Capua had no “right” to VR under HRS § 386-25 and, therefore,
argued that the LIRAB correctly determined that HAR § 12-14-36
e “entirely consistent with the [VR] atatute.* on guly 29,
2007, the ICA issued an order requesting that the Attorney
General file an amicus curiae brief because “the appeal raise (d]
a challenge to the validity of a regulation promulgated by the
[alizector of the DLIR.*! Thereafter, on August 24, 2007, the
Attorney General filed its amicus curiae brief, taking the
position that HAR § 12-14-36 was valid.”
HRS ¥ 386-88 provides in relevant parts
The decision or order of the appellate bosrd shall be
fsnei and conclusive... unless within thirty days after
ailing of a certified Copy of the decision or orcer, the
Glrector or any other party sppeaie to the (Teal << . BY.
filing a written notice of appeal with the appellate board.
Specifically, the ICA requested that the Attorney General's brief
address the following ierve:
Weether the portion of HAR § 12-14-36 providing that *faln
employee who hus been issued a (P¥0] avard by the director
O's determine! to have waived the right to
Eehabilitation(]* ie tavalid as inconsistent with 15
(elhapter 306-
(some brackets in original and sone added.)
Additionally, the Attorney General argued that,
hough
wa § 12-34
36 was valid, the LIFAB exred in finding that’ veyerhaeuser’s offer
(continued...)
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On Septenber 27, 2007, the ICA, in @ 2-1 Spo, affirmed
the LIRAB‘s decision, with Associate Judge Daniel R. Foley
Gissenting (ICA Dissent). Therein, as discussed more fully
Anfxa, the ICA rejected Capua’s contention that HAR § 12-14-36
was “invalid as inconsistent with HRS (c]hapter 386." The
dissent, however,
jerted that HAR § 12-14-36 was “inconsii
with the express purposes contained in the language of HRS § 386-
25" and stated that, “[i]nasmuch as the (LIRAB] relied on an
invalid rule to deny Capua’s petition for [VR] benefits, [he]
would vacate and remand." ICA Dil
nt at 5-6, 8.
The ICA entered ite judgment on appeal on October 26,
2007. On January 24, 2008, Capua filed her application for a
writ of certiorari. Meyerhaeuser did not file a response. This
court accepted Capua’s application on February 27, 2008 and heard
oral argument on April 17, 2008."
1. continued)
to provide VR co Capua was merely gratuitous. Accordingly, the Attorney
General urged the TCA to reverse the LIRAB’s decision because it believed that
Weyerhacuser's offer of VE wae an offer that was made in exchange for
terminating Copua's ten-year exploynent and, thus, was an offer supported by
consideration. However, the Ick declined to address this argunent "because it
vee not raised by Capua on appeal." S00 at 4.3)
™ on March 25, 2008, state Solicitor General Dorothy Sellers filed, on
behalf of the state of Hawai'i, a notion for leave to appear anicue curiae and
to participate in oral armument (hereinafter, the State's motion). We granted
the state's motion on april 9, 2008
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IT. STANDARDS OF REVIEW
A. Agency Decisions
Appellate review of the LIRAB’® decision is governed
by ung $'91-14(q) (2953), which provides
Upon review of the record{,] the court may
affirm the decision of the agency or remand the
Gace with instruct ions for further proceedings)
or it'may reverse or modify the decision and
order if the gusstantisl righte of the
Petitioners may have been prejudiced because the
Adzinistrative findings, conclusions, decisions,
or orders ares
(2) tn violation of conststutional or
statutory provisions; oF
(2) Invexcese Sf the statutory authority or
jurledietion of the agency: oF
(3) Rede spon unlawful preceaurey or
(4) Affected by other error of law; oF
(5) Clearly erroneous in view of ‘the reliable,
probative, and substantial evidence on the
Whole record) oF
(6) Arbitrary or capricicus, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.
Under HRS § 91-14(g), conclusions of law (coLe) are
reviewable under subsectiose (1), (2), and (4); questions
Fegarding procedural defects are reviewable under subsection
a)
A COL 1s not binding on an appellate court and ie
freely reviewable for ite correctness. ‘Thus, the court
reviews Cols 8 hove, under the right/wrong standard.
Tamv. Kaiser Permanente, 94 Hawai'i 487, 494, 17 P.3d 219, 226
(2002) (citations,
original brackets, and ellipsis omitted)
(format altered) .
B. Statutory Interpretation
“The interpretation of a statute is a question of law
reviewable de novo." Flor v. Holouin, 94 Hawai'i 70, 76, 9 P.3d
382, 388 (2000) (original bracket:
internal citations, and
ellipses omitted). Further, “thie court has accorded persuasive
weight to the construction of statutes by administrative agencies
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charged with overseeing and implementing a particular statutory
schene.* Sam Teague, Ltd. v. Hawaii Civil Rishts Conm’n,
Hawai'i 269, 276 n.2, 971 P.2d 1104, 1111 n.2 (1999).
Nonetheless, “an interpretation by an agency of a statute it
administers is not entitled to deference if the interpretation is
plainly erroneous and inconsistent with both the letter and
intent of the statutory mandate.” Haole v. State, 111 Hawai'i
144, 150, 170 P.34 377, 383 (2006) (citation omitted) .
IIT. DISCUSSION
As previously stated, Capua contends that the ICA erred
in affirming the LIRAB’s decision and order, which denied Capua’e.
request for VR services. Specifically, Capua argues that the ICA
erred:
18 ignoring the central legal ‘eave that
icapia’s} Fight fo VR benefits le waives by relying on
an invalid administrative rule, HAR § 12-14-36, which
is wholly inconsistent and contradicts HRS [elhapter.
386, a social legislation requiring broad Liberal and
Beneficent interpretation and where there is 0
yeference anywhere in HRS [clhapter 386 or HRS
§386-25(b) that precludes an injured worker 1ike
{capual from aeserting her statutory right to VR
benefite(;)
2 by misapplying or misapprehending the fact that
icepia’s} "award of (PPD], which precludes
finding gainful employment, ie the very 1
she should be granted VE benefits ang that HAR
5 12-14-36 should be declared an invalid rule and
totally disregarded{; and]
3 Ey deciding as a tatter of law chat HAR
§ izta4'se ie valid by creating » reasonable deadline
fo accept vR benefits when in reality it is patently
arbitrary and violates (capua'a) right to equal’
protection of lawl.)
Inasmuch as (1) and (2) above relate to the sole issue whether
the ICA erred in relying -- as did the director and LIRAB -- upon
oe
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the allegedly invalid HAR § 12-14-36 to conclude that Capua
waived her right to VR services, we address them together.
On appeal, as well as on application, Capua argued,
Anter alia, that HAR § 12-14-36 wae invalid and, thus,
inapplicable because it is inconsistent with, and directly
contradicted, HRS § 386-25. In rejecting Capua’s arguments, the
TCA majority stated:
HAR § 12-24-36 establien
@eadline =" measured
the employee's acceptance of
Compensation for PPD -- for an employee who hes suffered @
Pro to obtain [VR] services. The regulation filled the void
lett by the statute's silence on the time by which a
employee with a PPD would have to obtain (Vk) services. The
Fequirenent that an erployee secure [VR] services before
accepting a PPD vara ia rationally relates to the statutory
purpeses of {VR}, which is to restore the employee's earning
Espacity Snd retin the employee to work in an expeditious
and a cost-effective manner.
Especially ss applied to Capua, HAR § 12-14-36 was
consistent with Wns lelhapter 206. For Cepua to receive PPO
benefits, it wae necessary for ner medical condition to have
Btabilized to the point where no further seprovenent coule
Feascnably be expected so that her PPD impairment could be
Fated. Capua’s PPD award was iesued more than four years
tter she had been injured and had returned to work. Thue,
Capua had ample tine to seek [VE] services before obtaining
her PPD avard. By virtue of HAR § 12-46-36, she was algo oo
notice that by obtaining the PPD award, she wae waiving her
Fights to (VR
SDO at 3-4 (footnote omitted) .
To the contrary, the dissent opined that:
ypably related to carrying into
effect the purposes” of (HRS clhapter 366, and aa such, the
DLIR “may not enact rules and regulations which enlarge,
alter, oF restrict the provisions" contained theresa:
Sacober v. Sunn, € Maw. app. 160, 167, 715 P.2¢ 613, 039
GSee)- Az evinced by the text of HRS § 386-25 and’ ite
legislative history, HAR § 12-14-36 bears no reasonable
Felation{) to the (VR) statute. gaole v. seate, 111 Mawad"t
iss, 256, 240 P.3¢ 377, 389 (2006). Therefore, T conclude
that the DLIR exceeded ite statutcty authority when it
promulgated thig rule, which 1 fing to be inconsistent with
the purpose of [VR].
ICA Dissent at 7.
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Here, Capua argues that “the ICA disregarded the
consistent legacy concerning the construction of the workers’
compensation statute and (Capua’s} challenge that the HAR
§ 12-14-36 ie invalid.* Capua asserta that, although “the
[a}ixector ie charged with rule making to implement the
legislation,” it is “axiomatic that . . . the rule cannot
conflict with [the statute], nor contradict such a social
beneficent legislation.’ Specifically, Capua contends that HAR
§ 12-14-26 de invalid because “[nJowhere does [HRS § 286-25) or
[ite] legislative history limit an injured worker's right to VR
benefite.*
With regard to an agency's rule-making authority, this
court has announced that:
(A) public administrative agency possesses only such
role-naking authority as is delegated to it by the state
legislature and may Only exercise this power within the
Exanework of the eeatute Gnder which it’ se conferred
are invalid and must be-etruck dow, In other words. an
‘sdninietretive agency can oly wield povers expressly oF
inplicitly arated to it by statute. However, it is well
ertabiiened that an adninistrative agency's authority.
Includes those inplied powers that are reasonably necessary
to carry out the powers expressly granted. The reason for
implied powers is that, ae a practical matter, the
legislature cannot foresee ali the probleme incidental to
carrying out the duties and responsibilities of the agency
Haole, 121 Hawai'i at 152, 140 P.2d at 35 (enphasis added)
(citations and original emphasis omitted) (format altered).
In thie case, the director was authorized to promilgate
rules in accordance with HRS § 286-72 (1993), which provides that
“the director . . . shall make rules, not inconsistent with
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[chapter 386], which the director deems necessary for or
conducive to ite proper application and enforcement.”
Specifically, the director promilgated HAR § 12-14-36 in an
attempt to implement HRS § 366-25 (1993), which provided in
relevant par!
(a) The purpotes of vocational rehabilitation are to
restore an injured worker's earning capacity az nearly a8
possible to that level which the worker was earning at the
Eine of injury and to return the injured worker to suitable
work in the active labor force se quickly se possible in a
cot-effective manner.
(b) The divector shall refer enplovees ho may have or
have suffered permanent disability asa result of work
aniuties and who in the divector’s opinion can be hvaically
‘or _vocationaliy cehabilitated to the department of huran
services of to private providers of retabiliestion services
Bra_featibles A referral shall be nace upon recommendation
Gf the yehabilitetion unit eetablished unser section
346-73.5 and after the employes has been dened physically
able to participate in rehabilitation by the explovee's
attending physician.
% we note that the parties, ae well as the Attorney General -- on
direct appeal, =~ relied upon the 1998 vereion of HRS § 366-25, which vereion
provided in rélevant part that "(t]he director may refer exployees who may.
have or have guffered pernanent disability .. . for. . - [VR] services. that
are feasible.” HRS § S66-25(5) (emphasis added). However, thie coure has
Stated that “the general rule in workers’ compensation cases is that the date
Of disability decermines what year's version of the (wlorkere’ [clompensation
[Jaw is applicable.” Tan, 9¢ Hewal't at 495, 17 9.2g at 227 (citation
omitted) .""here, Capua was injured on July 6, 1992; Weyerhaeuser filed a ¥C-1
Report of Injury on vuly 24, 1992, Indleating that Capua bad injured herself
at work, and accepted 1iabsiity for Capua'e injury on August 12, 1992.
Acccraingly, we apply the statute that! was’ in effect when Capua sustained she
injury that causea her permanent disability. The statute that wae in effect
in toda ia the sone as the 1993 version, Aoresvers even If the caate of
Gleabilityr is the date that the director awarded Capua’e PPD rating —— Lue,
Decenber 4, 1996 -- the 1993 version would etill remain the appropriate
version to|apply in thie cage insemich ae the legislature aid not anend the
Statute until 1998. Thue, in our view, the version of HRS § 366-25(b)
applicable here was the 1583 version, as quotes more fully intra. Jt appears
from the ICA's SDO that the 1Ca applied the 1999 version of the statute
because, although the CA did not explicitly quote the atatutery language, it
stated that it uae applying the statute that vae in effect *{s]t the tine
Capua's injury became nanifest.* SD0 at 2
-14-
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(c) Earollment in a rehabilitation plan or progres
shail not be nandatory and the approval of « proposed
Fehabilitation plan of program by the injured exployee shall
be required. After securing such approval the director
shall select o certified provider of rehabilitation services
for the injured employee after consultation with the
employes and the employer:
(a) An injured employee's enrollment in &
yebabilitation plan or program shall not affect the
employee's entitlement to [77D] compensation If the employee
Fue no wages during the period of enrollment. If the
exployee receives wages for work performed under the plan or
progras, the employee shall be entitled co. (77D)
Roupensation in an snount equal to the difference between
the employee's average weekly wages at the tine of injury
find the wages received under the plan or program, subject to
the Lisitarions on weekly benefit’ rates prescrived in
jection 386-33(a)., The employee shall not be entitled to
Such compensation for any week during this period where the
Wages equal or exceed the average weekly wages at the tine
Of injury’
(e) The director shall adopt rules for additional
Living expenses necessitated by the rehabilitation program,
together with sll reasonable and necessary vocations]
training
UE) 1 the rehabilitation unit determines that
physical and vocational rehabilitation are not poreible or
feasible, it shall certify such determination to the
Airector
(gi The eligibility of anv iniured emplovee to receive
other benefita under this-chaster shall in no way be
affected by the employes’: entrance upon a cours of
physical or vesational rehabilssation as herein provides.
(Emphases added.) HAR § 12-14-36 provides in its entirety that.
(a) an
the director or an employee who has stipuleted away the
Fight to vocational rehabilitation with the approval of the
Girector is determined to bave waived the right to
(b) "the right to rehabilitation is preserved for any
enployee on [TTD] and any employee who ha been adjudged
Permanently and totally disabled by the director.
(Emphases added.)
It ie well-settled that thie court's foremost
obligation when construing a statute
is to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
Language contained in the statute itself. And we must read
statutory language in the context of the entire statute and
Construe it ina manner consistent with its purpo
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State v. Kalani, 108 Hawai‘i 279, 283, 118 P.3d 1222, 1226 (2005)
(citation omitted) (format altered). ERS § 386-25(b) expressly
stated that the director “shall refer employees who may have or
have suffered permanent disability as a result of work injuries
and who in the director’s opinion can be physically or
vocationally rehabilitated to . . . providers of rehabilitation
services for such physical and vocational rehabilitation services
as are feasible." (Emphasis added.) Thie court has stated that
the term “shall* ‘generally will be construed ae mandatory.”
Malahoff v, Saito, 111 Hawai'i 168, 191, 140 P.34 402, 424 (2006)
(citations omitted). Further, disability ie defined as the “loss
or impairment of a physical or mental function.” HRS § 386-1
(1993). Thus, by its plain reading, HRS § 386-25(b) mandated the
Girector to refer an employee who had been injured during the
course and scope of employment and who either may suffer or has
suffered permanent impairment of any physical (or mental)
function to VR services “as are feasible.” The existence of the
Phrase “have suffered permanent disability” within HRS § 386-25
appears to encompass employees who have been awarded PPD, such as
Capua.
M Likewise, we note that the 1996 version of HRS § 386-25 retains the
Phrase “have suffered permanent disabil: ‘Thus, although the 1998 vereion,
arguably, provides the director with greater discretion in referring Anjured
exployet fn 1952 Senate
that the director
o16-
FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
Additionally, HRS § 386-25(g) specifically declared
that an employee's participation in VR services “shall in no way
- affect {]* her eligibility to receive “other benefite under
[chapter 386].* Although benefits was not defined within chapter
386, HRS § 386-1 provided that “compensation” means “all
benefits,” including ‘medical and rehabilitation benefits, income
indemnity benefite in cases of disability or death, and the
allowance for funeral and burial expenses.” stated differently,
an employee's decision to participate in VR
vices would not
affect her eligibility to receive any “income indemnity
benefits,” such as PPD benefits. HRS § 386-25(g). Thue, HRS
§ 366-25 clearly sete forth an employee’s entitlement to VR
services upon the director's finding of feasibility
Having 80 interpreted HRS § 366-25, we now examine HAR
§ 12-14-36, which was promulgated to implement HRS § 386-25. HAR
§ 12-14-36 unambiguously and plainly provides that an employee
who hae been avarded PPD benefits is deemed to have waived VR
services. As stated above, the ICA believed that HAR § 12-14-26
was a proper exercise of the director's statutorily delegated
rule-making power because "the regulation filled the void left by
the statute’s silence on the time by which an employee with a PPD
would have to obtain [VR] services." sD0 at 3. However, the ICA
fails to explain how HAR § 12-14-36 “establishes a reasonable
deadline . . . for an employee who has suffered a PPD to obtain
[VR] services" and how it is “necessary for or conducive to," BRS
“27°
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
§ 386-72, the proper application and enforcement of HRS § 386-25
(L.e., that it was reasonably necessary to carry out the powers
expressly granted).
Specifically, the ICA failed to point
to where in the statute the director was ranted the authority to
waive an injured employee's right to VR services. Indeed,
HRS § 386-72 grants the director the power to “make rules, not
Anconsistent with this chapter, which the director deems
necessary for . . . its proper application and enforcenent..”
(Smphasis added.) HAR § 12-14-36's waiver of VR services
however, cannot be consistent with HRS § 386-25, when the statute
established an entitlement to VR servict
and specifically
provided that an employee's entrance into a course of VR shall
not affect his or her other benefits. Nowhere in the language of
HRS § 386-25 does it provide -- expressly or impliedly -- that
the director has the power to waive an employee's right to VR
services or that, once a PPD award is i
jued the right to VR is
ext inguis!
Moreover, contrary to the ICA’s assertion that HAR
§ 12-14-36 merely
abliohe[é] a reasonable deadline,* it is
clear that HAR § 12-14-36 does more than establish a “deadline*;
it creates a total bar to VR services when an employee receives a
PPD award, We, therefore, hold that the director exceeded the
bounds of the “rule-making authority [that was] delegated to
Inim) by the state legielature,« Hale, 111 Hawai'i at 152, 140
P.ad at 385, in promulgating HAR § 12-14-36. Consequently,
imasmich as HAR § 12-14-36 exceeds the scope of ERS § 286-25, it
-18-
*** ROR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
is “invalid and must be struck down." Id. Accordingly, we also
hold that the ICA erred in relying on an invalid administrative
regulation to affirm the LIRAB‘s December 30, 2003 decision and
order.
IV. coNcLustoN
Based on the foregoing, we hold that the ICA erred in
affirming the LIRAB’s December 30, 2003 decision and order
inasmuch as the director exceeded his statutorily designated
authority in promulgating HAR § 12-46-36. Accordingly, we vacate
the ICA's October 26, 2007 judgment on appeal and the LIRAB’s
Decenber 30, 2003 decision and order and remand this case to the
Girector with instructions to provide Capua with VR services, if
she eo desiree at this time.
Dennis W. S. Chang, for Go
petitioner/claimant- .
appellant Bi Mlenee
Ronald ¥. K. Leong (Dan Ko ‘ 1 Oe
Obuhanych, with him on the Mem «ath.
briefs) (Of Watanabe Ing
Kawashima & Komeiji), for
respondent /employer-
appellee
Dorothy Sellers, State
Solicitor General, for
amicus curiae State of
Hawai'i
Based vpon the above ary to examine
capus’s remaining contention on app! feo wit, that HAR § 12-14-36 is
Spatently arbitrary and violates [capsa’e] right to equal protection of Law.
-19-
| 3c2120eba80cbcdeb5847e610d3487f1ddbd90558e0ba993b04fc513eda59931 | 2008-05-27T00:00:00Z |
22e98d15-dbcc-43f2-8558-8c80eea7bc13 | State v. Meheula | null | null | hawaii | Hawaii Supreme Court |
Wo. 28201
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAT'I, Respondent-Appellee,
oats
KEALIIOKALANI MEHEULA, Petitioner-Appellan
CERTIORARI TO THE INTERMEDIATE COURT OF APPI
(CR. NO. 05-21-1067)
DEI WRIT OF CERTIORAST
(By: Nakayama, J., for the court")
Petitioner-Appellant’s application for writ of
certiorari filed on April 2, 2008, is hereby rejected.
DATED: Honolulu, Hawai", May 13, 2008.
FOR THE COURT:
Pacsatee ON Uc ON
Associate Justice
Linda C.R. Jameson
for pet itioner-appellant
on the application
Js) Levinson, Nakayama, Rcobs, end Duffy, 99.
‘considered by: Moon, C.
| b283a03f464cc887ebaf9285089741e32b91f7caf1703e408be0e8c4095b45ed | 2008-05-13T00:00:00Z |
fecba4e6-89db-4b55-b5ff-4347d8c0e2e5 | State v. Makekau | null | null | hawaii | Hawaii Supreme Court | No. 27622
IN THE SUPREME COURT OF THE STATE OF HAWAT IB)
STATE OF HAWAI'I, Plaintiff-Appellee-Respond
vs.
O-O1WW OF AVR avo
CRAIGE H. NAKEKAU, Defendant-Appellant-Petitit
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 04-1-1801)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
court!)
(By: Levinson, J., for tl
Upon consideration of the application for writ of
rtiorari filed on April 21, 2008 by the defendant-appellant-
petitioner Craige H. Makekau, the application is hereby rejected.
Honolulu, Hawai'i, May 30, 2008.
FOR THE COURT:
DATE:
Shawn A. Luiz,
for the defendant-appellant-petitioner
Craige K. Makekau,
on the application
1 Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
a3
| b0f2b6b0c627646a3f4a5e99ffb6271135b9e6ad0f7097e5c567f62900fadd20 | 2008-05-30T00:00:00Z |
0b9fa15f-e05b-4ec7-995d-cc662a296ad3 | Godbehere v. Leisten | null | null | hawaii | Hawaii Supreme Court | No, 28037
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
RICHARD G. GODBEHERE, Respondent /Plaintiff-Appellee
ALLISON LEISTEN, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. RC-05-1-0265)
R WRIT
{CTING API
(By:
Petitioner/Defendant-Appellant Allison Leisten’
application for a writ of certiorari,
hereby rejected.
DATEL
Allison Leisten,
petitioner/defendant-
appellant, pro se,
on the application
Duffy, J., for the court’)
filed on May 7, 2008, is
3
Game dutyine — |, SEAL
Associate Justice Qe ai
986 WY 21 or aom
Hoon, C.J., Levinson, Nakayama, Acobs, and Duffy, 39
* Considered by:
oats
| 88fc1d63554803aa5628766f95fc01720795e71ecf3f7566caf9ab59d3ebfb91 | 2008-06-12T00:00:00Z |
0609946c-0e74-44b1-acf5-c38ed4079dd5 | Karagianes v. Hawaii Paroling Authority | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
wo. 29404 og
s
GARY KARAGIANES, Petitioner, =
vs. 2
=
HAWAI'I PAROLING AUTHORITY and DEPARTMENT OF PUBLIC
‘SAFETY, Respondents.
ORIGINAL PROCEEDING
(ay: Moon, ¢.J., Levinson, Rakeyama, Acoba, and Dufty, JJ.)
Upon consideration of the petition for 4 writ of
mandamus fi1ed by petitioner Gary Karagianes and the papers in
support, At appears that HRS § 706-660.1 (1993) does not preclude
Inpositions of mininun terms of inprisonment by both the circuit
court and the Hawai't Paroling Authority, the lengths of which
nay difter. See Althouse v. State, 111 Havas's 35, 38-40, 137
F.3d 249, 252-54 (2006). Petitioner's minimun term of
imprisonment fixed by the Hawas"s Paroling Authority may be
challenged in a petition for post-conviction relief filed in the
circuit court pursuant to Hawai'i Rul
of Penal Procedure Rule
40. Therefore, petitioner is not entitled to mandamus relief.
Seo Koma v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999)
(A writ of mandamus is an extraordinary remedy that will not
issue unless the petitioner demonstrates a clear and indisputable
right to relief and a lack of alternative means to redress
adequately the alleged wrong or obtain the requested action.).
Accordingly,
IT IS HEREBY ORDE!
at the petition for a writ of
mandamus is denied.
DATED: Hono:
November 3, 2008.
| 4860500f38d99e975ff0fd300fe1bc5c84a28e33446eebf69b9927397e9cb03d | 2008-11-03T00:00:00Z |
ab5d2b24-f3de-4108-a8dd-e51cd086b9ef | Kato v. Funari | null | null | hawaii | Hawaii Supreme Court | LAW Listas)
No. 27237
IN THE SUPREME COURT OP THE STATE OP HAWAT'T
Beas
THane to MO HALBH Eo, Povivlowe/niaimeitewngBhpian
1g 8 =
vs. “28 E
FREDERICK FUNART, Respondent/Defendant-Appeliesl? oS
and as 8
JOH DOES 1-10; JANE DOBS 1-10; DOE CORPORATIONS 1-10;
DOR PARTNERSHIPS 1-10; DOR NON-PROFIT ENTITIES 1-10; and
DOE GOVERNMENTAL ENTITIES 1-10, Defendants.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 03-1-0215(1))
R_ACCEPTI r
(By: Moon, C.J., for the court")
Petitioner/plaintiff-appellant Izene Kato’s application for
writ of certiorari, filed March 19, 2008, is accepted and will be
scheduled for oral argument. The parties will be notified by the
appellate clerk regarding scheduling.
DATED: Honolulu, Hawai'i, April 22, 2008.
Ian L. Mattoch and Stuart
M. Kodish, for petitioner/
plaintiff-appellant Irene Kato
FOR THE COURT:
Court: Moca, €.J., Levinson,
| 53beff9c3986327b0cd7539d84279f8c28349c50e10b91fa43fcb9bcafb85539 | 2008-04-22T00:00:00Z |
1a7eb140-f881-49e5-96d6-ec07f03d4ec5 | Tierney v. Senda | null | 29245 | hawaii | Hawaii Supreme Court | LAW LIBRARY
no. 29245
MICHAEL C. TIERNEY, Petitioner,
‘THE HONORABLE TRUDY K.T. SENDA, JUDGE OF THE DISTRICT
COURT OF THE FIFTH CIRCUIT, STATE OF HAWAI'T and
TRE HONORABLE PAULA MATAYOSHT, JUDGE OF THE DISTRICT
COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondents.
ORIGINAL PROCEEDING
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of Michael Tierney’s June 26, 2008
letter to the supreme court, which is deemed @ petition for a
weit of mandamus, it appears that the relief sought fron the
supreme court may be sought from the district courts of the first
and fifth circuits. Therefore, petitioner is not entitled to
mandamus relief. See Kena v. Gaddis, 91 Hawai'i 200, 204, 982
P.2d 334, 338 (1999) (A writ of mandamus is an extraordinary
remedy that will not issue unless the petitioner demonstrates a
clear and indisputable right to relief and a lack of alternative
means to redress adequately the alleged wrong or obtain the
requested action.). Accordingly,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall file petitioner's letter as a petition for a writ of
mandamus without payment of the filing fee
Oats
IT IS FURTHER ORDERED that the petition for a writ of
jamus is denied without prejudice to petitioner seeking relief
from the district courts of the first and fif
circuits,
DATED: Honolulu, Hawai'i, guly 16, 2008.
BlaoetRbrvtem
Peauter Or catceseycenrer
Boe
Gat Rtgs Bs
| da9ec1aed2116b2f6407669d973ad53570872b304ab9a59739bf8ff25e82dfff | 2008-07-16T00:00:00Z |
952f52c0-2dc5-4d27-8893-9b666bf83259 | State v. Pauline | null | null | hawaii | Hawaii Supreme Court |
No. 28150
Aas
STATE OF HAWAI'I, Respondent/Plaintiff-appeliee,
ALDEN A. PAULINE also known as ALDEN A.
PAULINE, JR., Petitioner/Defendant -Appellant .
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. WO. 05-1-0972))
REJECTING APPLIC)
(By: Noon, C.J., for the court")
Petitioner/defendant-appellant Alden A. Pauline’s
application for writ of certiorari, filed april 16, 2008, is
hereby rejected
PATED: Honolulu, Hawai'i, May 9, 2008.
FOR THE COURT:
\ considered by: soon, C.J., Levingon, Nakayama, Acoba, and Duffy, 33.
| ad102808cc4f7a00ac860ca3858732448eb6cd4f9f61c41ca450a08ff9c07076 | 2008-05-09T00:00:00Z |
3559369f-2666-4c5e-9855-0e3ce75c1c75 | In re Lisagor | null | 29068 | hawaii | Hawaii Supreme Court | No, 29068
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
Yay gang
wv
IN RE JAMIE LISAGOR, Petitioner.
eee
ORIGINAL PROCEEDING a
Moon, C.J., Levinson, Nakayama, Accba, and Duffy, JJ.)
Upon consideration of Petitioner Jamie Lisagor’s
Petition to Resign and Surrender License, the attached
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai" (RSCH), Therefore,
IT 18 HEREBY ORDERED that the petition is granted.
IT 18 FURTHER ORDERED that Petitioner Lisagor shall
return her original license to practice lw to the Clerk of this
court forthwith. The Clerk shall retain the original license as
part of this record. Petitioner Lisagor shall comply with the
notice, affidavit, and record requirements of subsections (a),
(b), (di, and (g) of RSCH 2.16.
IT 18 FINALLY ORDERED that the Clerk shall remove the
name of Janie Lisagor, attorney number €362, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order.
DATED: Honolulu, Hawai'i, april 18, 2008.
Gp
Petes Orertabeytervee
ra
Yarn Dads
| 4fba9c26a569cb566e8decb37b4582ecbda2aabe32f174eea3039dd6ffb7f49c | 2008-04-18T00:00:00Z |
e467f19a-246b-440e-9381-06afb5e10545 | State v. Yamada | 117 Haw. 332 | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
No, 27778
KALEAOKALANI YAMADA, Petitioner/Defendant -Appel lant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-1509)
IR REJECTING APPLICA’ IT OF x
(By: Noon, C.J., for the court")
Petitioner/defendant-appellant Kaleackalani Yamada’ s
application for writ of certiorari, filed March 5, 2008, is
hereby rejected.
DATED: Honolulu, Hawai'i, april 1, 2008.
Peter Van Name Esser and FOR THE COURT:
Myles 5. Breiner, for
petitioner/defendant-appellant,
on the application
Considered by: Moon, C.J., Levinson, Nakayama, Acobs, and Duffy, 3
| adf58dae0f7b0811e921f032b12bd7e93d823d413072a69b120cd2cfd97e7494 | 2008-04-01T00:00:00Z |
533f00a9-54a2-418e-8b04-10328da5cccb | Ibera v. Mishima | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
Nos. 26949 & 27181
IN THE SUPREME COURT OF THE STATE OF HAWAT'I
nos. 26949 6 27181
EDGAR LUCZON IBERA, Petitioner-Appellee-Respondent,
BERT WISHIMA, Respondent-Appellant-Petitioner.
cel
ORARI TO THE INTERMEDIATE COURT OF APPEALS
(Civ. No. 18801-1-€97)
an: R WRIT OF CERTIORARI
(By: Levinson, J., for the court")
upon consideration of the application for a writ of
certiorari, filed on March 27, 2008, by the respondent-
appellant-petitioner Bert Mishima, the application is hereby
rejected.
DATED: Honolulu, Hawai'i, April 30, 2008.
FOR THE COURT’:
steven 8. Levingon
Associate Justfce® \
Dexter T. Higa,
of Hirai, Lum, Tonita & Higa
for the respondent-appellant-
petitioner
Bert Mishima,
fon the application
Roy Y. Yempuku,
for petitioner-appellee-
respondent
Edgard Luczon Ibera,
on the response
0:6 HY OF dat Bll
Considered by: Moon, ¢.J-, Levinson, tskayema, Accba, and Duffy, J.
| 2ff99cad46d9896cfaad24fd88728f8c4aa53c924ea3b1a8bb38399ffe1b7b7c | 2008-04-30T00:00:00Z |
d9ea0cea-b306-4889-96e0-a7834dd45fb1 | Eline v. Tanaka | null | 28869 | hawaii | Hawaii Supreme Court | “AW UIBRARY
No. 26869
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
RICHARD C. ELINE, Petitioner-Plaintiff-Appellant,
ERIC TANAKA, Respondent-Defendant-Appellee,
and
JOHN DOES 1-50, JANE DOES 1-50,
in Individual and Professional capacity, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE PIRST CIRCUIT
(CIV. NO. 07-1-0234)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Noon, C.J. for the court")
Petitioner-plaintiff-appellant Richard Bline’s “notice
of appeal" to the supreme court filed on April 16, 2008, seeks
review of the intermediate appellate court’s dismissal of his
appeal for non-payment or non-waiver of the filing fee, and is,
therefore, deened an application for writ of certiorari. The
application is hereby rejected.
DATED: Honolulu, Hawai'i, May 7, 2008.
FOR THE COURT:
re
iH 6000
aman as
‘Yuva 1 ViRUON
oa
AG HY L
considered by: Moon, C.J. Levingon, Nakayama, Acoba, and Duffy, Jd.
| c5d96c630d3ebf460719ef8ef02a831a6716a4414ec84f050b325325532ef127 | 2008-05-07T00:00:00Z |
979be2ff-df4b-4eab-95a2-a03653141ced | State v. Akau. Dissenting Opinion by J. Nakayama [pdf]. Concurring Opinion by J. Acoba [pdf]. ICA s.d.o., filed 09/21/2007 [pdf], 115 Haw. 476. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/08/2008 [pdf]. | 118 Haw. 44 | null | hawaii | Hawaii Supreme Court | *** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
IN THE SUPREME COURT OF THE STATE OF HAWAT'IEi
00
Oe AVH a0
seams
=
STATE OF HAWAI‘T, Respondent /Rasosstt hopes?
ste
ANTHONY KALANI AKAU, Petitioner/Defendant -Appellant .
No. 26989
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 03-1-2289)
MAY 30, 2008
MOON, C.J., LEVINSON, AND DUFFY, JJ.; NAKAYAMA, J.,
DISSENTING; ACOBA, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY MOON, C.J.
on February 8, 2008, this court accepted a timely
application for a writ of certiorari, filed by petitioner/
defendant-appellant Anthony Kalani Akau on January 7, 2008,
requesting thie court review the Intermediate Court of Appeals’
(ICA) October 11, 2007 judgment on appeal, entered pursuant to
ite September 21, 2007 summary disposition order (SD0). Therein,
the ICA affirmed the Circuit Court of the First Circuit’s*
October 15, 2004 judgment, convicting Akau of, and sentencing him
» the Honorable Michael A, Town presided over the underlying
proceedings
aa
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
for, -+ pursuant to his conditional guilty plea -- three counts
of promoting a dangerous drug in the second degree, in violation
of Hawai't Revised Statutes (HRS) § 712-1242 (1993 & Supp
2003). Oral argument w.
held on March 6, 2008.
Briefly stated, on three separate occasions in October
and Novenber 2002, Akau unwittingly sold crystal methamphetamine
to undercover police officers. The drug buys led to the
execution of a search warrant of Akau’s person and personal
effects, which, in turn, led to charges of promoting a dangerous
Grug in the third degree, in violation of HRS § 712-1242 (1993),
and unlawful use of drug paraphernalia, in violation of HRS
§ 329-43.5 (1993) [hereinafter, the search warrant case or
possession case]. Approximately ten months later (and after Akau
pled no contest and was sentenced as a first-time drug offender
in the search warrant case), Akau was indicted on three counts of
promoting a dangerous drug in the second degree based upon the
three undercover drug buys (hereinafter, the drug buy case or
Gistribution case]. After unsuccessfully moving to disniss the
érug buy case based upon the compulsory joinder statutes, HRS
§§ 701-111 (1) (b) (1993) (barring a subsequent prosecution for
“lalny offense for which the defendant should have been tried on
the first prosecution") and 701-109(2) (1993) (requiring joinder
2 was § 712-1242 (2) (c) (2983) provides: “A person commits the offense
of promoting 4 dangerous drug in the ‘second degree if the person knowingly
Tal istributes any dangerous drug in any amount."
*** FORPUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
of criminal offenses “bi
don the same conduct or arising from
the same episode"), Akau entered a conditional guilty plea,
pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 12(a) (2)
(2007),? and was sentenced.
on application, Akau apparently argues that the ICA
erred in affirming, inter alia, the circuit court’s denial of his
motion to dismiss. Specifically, Akau asserts -- as he did
before the ICA -- that the circuit court should have dismissed
the drug buy case for failure on the part of respondent/
plaintiff-appellee State of Hawai'i (the prosecution) to bring
all the charges in one action, as required under HRS
§§ 701-211 (1) (b) and 701-109(2), because the possession and
paraphernalia offenses and the distribution offenses “ [arose]
from the same episode.”
As discussed more fully infra, we hold that the ICA
erred in affirming the circuit court’s denial of Akau’s motion to
dismiss. Accordingly, we reverse the ICA’s October 11, 2007
judgment on appeal and the circuit court's October 15, 2004
judgment of conviction in the drug buy case
> RPP Rule 11 (a) (2) states
ith the approval of the court and the consent of the
prosecution), a defendant may enter « conditional plea of
guilty or mold contendere, reserving in writing the right,
Gn appeal from the jusgnent, to seek review of the adverse
Severn xy specific pretrial motion. A defendant
vio pre \ppeal shail be allowed to withdraw the
ple
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
1. BACKGROUND
A, Eactual and Procedural Background Leading Up to the
Drug Buy Case
The following undisputed findings of facts (FOFs) are
taken from the circuit court's order denying Akau’s motion to
dismiss the drug buy case:
1. on october 8, 2002, fronting 25 Xeeauncku street,
fan undercover Honolulu’ Police Departnent (hereinafter “HPD")
police officer purchased 0.121 gras of crystal
‘ethanphetamine from (akauj for twenty dollars.
2. on October 22, 2002, fronting #25 Keeaumoke
Street, ‘a second undercover police officer purchased 0.094
grans Of crystal sethamphetamine from (Akau) for twenty
Soller
4. on Novenber 21, 2002, inside the mene restroom of
Daiei located at 601 Kahcka Street, the second undercover
police officer purchased 9.158 grams of crystal
1
Rethamphetamine from (akes for twenty dolla
5. Based on the [three] undercover transactions, a
search warrant was obtained and executed oa (Akaul and hie
personal effects on Novenber 26, 2002... [akau] wae never
Srreated for the (three) underlying drug transactions. ("]
5. upon execution of the search warrant fronting 035
Keeaunoia Street, 0,351 grams of crystal methamphetamine
in Violation of [MRS § 712-1243],
fujnlaweul [ules of (dlrug (plaraphernalia, in violation of
mas [$] 329-43-5() (.]
7. On Decesber 5, 2002 (Akau] was charged via
complaint with (plromoting a (dlangerous (d]rug in the
{elhird (d}egree and u)niawful [ulse of (alvug
Iplaraphernaiia() in (che search warrant case], based upon
the illegal narcotic and drug paraphernalia recovered during
the execution of the search warrant
2. on February 6, 2003, (Akau) pled [nlo [clontest as
charged’ in [the search warrant case]
As indicated by the prosecution, akau ‘was in fact arrested after he
wag indicted on three of the dlatribution offenses ae noted in FOP No. 10.
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
9. on April 14, 2003, (Akau} was gentenced [as a
first-time drug offender] tol,] inter alia, a term of five
(5) years of probation (with One (1) year of incarceration),
pursuant to MRS [§) 706-622-5 {(supp. 2003)] in (the search’
warrant case]
20. on October 21, 2003, [akaul vas indicted in the
instant sutter for three counts of Iplromoting = (élangerous
(@]rug in the [sJecond (d)egree, in violation of HRS
[S] 7i2-1aea{a) (e) ss . y Based on the Ottober 8, 22, and
Novenber 21, 2002, undercover drug transactions:
B. Motion to Diemiss the Drug Buy Case
On March 22, 2004, Akau filed a motion to dismiss the
drug buy case, pursuant to HRS §§ 701-111(1) (b) and 701-109(2).
HRS § 701-111 provides in relevant part that:
men prosecution 1s barred by former prosecution for
Gitterent offense, Although « prosecution is for a
Violation of s different statutory provision or ie based on
Uifterent facta, it is barred by a former prosecution under
ny of the following eizcusseance
<3)" “the former prosecution resulted in an acquittal
hich nas not subsequent ly been set acide or
Ina conviction as defined in section 701-210(3)
{13993)"] and the subsequent prosecution is for:
ip” inv oftense for vhich che defendant should have
Desi_triedon the fiat prosecution under
section 701-109 unless the court ordered a
Separate trial of the offense -]
(Some emphases in original and some added.) In turn, HRS
§ 702-109, also known aa “the compulsory joinder of offenses
requirement,” State v, Aiu, 59 Haw. 92, 95, 876 P.2d 1044, 1047
(1978), provides in relevant part that:
Rs § 701-120(3) provides in relevant part: “There is a conviction
Lf the prosecution resulted in... # verdict of guilty which has not been
Get aside and which i capable of supporting = judgnent, or a plea of guilty
or nolo contendere accepted by the court.”
in the search warrant cage, Akau entered a no contest plea which wi
accepted by the circuit court resulting in the circuit court’e judgment of
Conviction and sentence; accordingly, under HRS § 701-110(3), the search
Gatrant case renulzed in a conviction for the purposes of HRS § ToI-113(1).
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(2) except as provided n aubsection (3) of chia
section { (authorizing the court co order separate trials),
Quoted infra note 10,)
Kigarace trials for muleipie offenses based on the sane
conduct or arising from the same episode, if such offenses
Src known tothe appropriate prosecuting officer at the time
Gf che comencesent of the first erial and are within the
Jurisdiction of « single court.
(umphases added.) Based on these two statutes, Akau argued that
the undercover drug buya were “part and parcel of a search
warrant and as such, both the purchase [of the drugs) and the
jesuance of a search warrant can and should be deemed ‘the same
episode.‘* The prosecution opposed Akau’s motion. A hearing was
held on May 13, 2004 at which time Akau called Lawrence Grean,
the head of the Screening Intake Division at the Prosecuting
Attorney's Office, to testify regarding the circumstances under
nich undercover buys or sales of narcotics that lead to a search
warrant are prosecuted or are not prosecuted. Specifically, the
following testimony was elicited:
0: [By Akau’s Counsel] tow, in those cases where the
Sndercover or the confidential informant sales/buys has
Yemuleed in search warrante, ie if the practice of Your
Effice, Mr. Orean, co then prosecute the actual buys and/or
Ghles in spite of the fact that the search warrant case fh
been prosecuted? bo you understand what T’m driving at?
Rriny Grean) f -- 1 think so. The answer to that ie it
depends
Gr All right. And will you please elucidate 11 of us as
fo why it depends?
Ae “Weil, if you have undercover police officers -- le
take! that scenario =
Q: Thank you.
Ki Mine they make three or four buys from a suspect, and
then as'a result of those buys the search warrant ie
prepared and executed, ~~
OF ves?
Bi Slere quite possible that the undercover buys cannot
Go forward because the police officer, the undercover
Seicer, is still working undercover and cannot surface at
that. eime
Qr And then?
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As So the prosecutor's office would go ahead with the
Search warrant case. And at a later Gate, when it’s -~ when
the undercover officer is going to be available and surface,
then we would go ahead with those cases
G1” tod, with rempect to the buye/eales involving an
cases would be postponed, to wit, that the
officer ie still serving in an undercover capacity and
therefore your office has to wait until -- until
that ~~ that person's undercover status has been lifted. 1s
cEbst_ true?
Ar Right
Q:” | |. of€ the top of your mind, you cannot recollect a
where an undercover Officer hae’ done the buy and the
Sale and which thes leads of course to a search warrant on
Suspect; right?” ‘The suspect ie
As the anewer is yes
Q: Right. And the suspect ie prosecuted on the search
Warrant case but then ie not prosecuted for the buys and
Sales, even though there was an undercover officer involved
Sh thé undereover buys and
As’ tei, it -- 4¢ the undercover officer has let’s say made
‘four buy and he can't surface at che -- at the tine of the
Duys, and he does surface later on, chen there wouldn't be
SSYumiese there's tone other reason I=” I don’ =~ I'm not
auare of, he -- he -- the suspect vould then be prosecuted
for these four buys.
o ow, can you say as a matter of fact that in all
Eizcinatances when there ie an undercover officer involved
ith the eales and the buys that -- that, even though you ve
muade 2 search warrant case on the suspect, chat you always
prosecute those buys and sales?
RewWell, F would think 80, yee,
Additionally, the circuit court questioned Grean as follows:
0: [By the circuit court] Mr. Grean, in your mind, correct
he if z/m not hearing you rigit, it’s a matter of
Prosecutorial discretion if there's gone buys and then later
‘Search warrant and the undercover officer ie able to
Surface, for lack of @ better word, and they're prosecuting,
fe'a prosecutorial dlecretion whether to charge separate
‘charges?
Ke Absolutely.
Akau aleo called HPD Officer Shellie Silva, who
executed the search warrant on Akau, as a witness. Officer Silva
testified, in relevant part, as follows:
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@: (By Akau’s counsel} z= there any reason why, Officer,
you decided to get three or four purchases?
Ko" (py ofticer Silva]
a done and
fave. the nore dave you have to execute the warrant tron the
‘dant purchase.
‘Okay. Now, earlier this afternoon I asked you about
Ehat, and ie it fair to say that, for instance, if you only
trade one undercover purchase, sore likely than sot the
13, Af you made three or four purchases, undercover
urchases, then the search warrant would be good’ for perhaps
Een days; is that correct?
At Maxim ten Gays, yee. (*]
Gs" And then finally, officer silva, the -- co your
Knowledge, the search warrant that you executed on Novenber
26(}, 2002, did in fact result in a criminal case being
Brougne against [akaul?
Re Yes
Qi The undercover officers that were us
+ with [aAkaul, Go you recall for what
any, after the’
2002, "that they stayed in an undercover capacity, if you
wal?
eT would 885
tavbe abbroximately six months. 1 don’t know exactly ca
there's other divisions and other teana that would use chem,
50 for my case, I would say approximately six months for
fone, and one ig etili currently working with us.
Grin the police reporte that were prepared regarding the
Purchases and sales in this matter with (Akau), their nanes
Ere disclosed, te that correct?
Re Us, in the criminal cases that ~~
@: Yeah, in the police reports
Ki Yer, because T would believe they had to doa -- a
jort on the actual transactions 20 thelr same would be
signed at the bottom of the report
Gr Yeah. “So it wouldn’t be blacked out oF something like
that; right?
Ae ho.
(Emphases added.) Ultimately, on June 18, 2004, the circuit
court issued its order denying Akau’s motion to dismiss.
Therein, the circuit court concluded that:
© aRBP gule 42(c) (2007) dictates that a search warrant must be
executed "within a specified period of time not to excead 10 days.” (Bmphasie
Sdded.). kovever, it is unclear fron the record what factors the issuing judge
Gxamines in determining how long @ search warrant will be valid for -- Les,
one day or ten days.
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3; _{Akau's) aesertion that the distribution charges
in the inetant matter and his possession of an illegal
harcotic and drug paraphernalia in (the search warrant
case], were “based jame conduct of arising from the
Sane episode” is unsupported by the evidence presented to
the court. HRS ($] 701-109(2)
6.” {akau’el act of distributing crystal
methanphetanine [(in the drug buy case)) and his act of
assessing an illegal narcotic and arog paraphernalia ((in
the search warrant case)] do not constitute the "sane
conduct."
1 the evidence descnstrated that (Akau's)
distribution of crystsl methamphetamine were discrete acts
Committed and completed on the specific dates charged in the
Sadicemenc
8. Similarly, the evidence dencnstrated that [akau's]
poteeasion of the iilegal narcotic and related drug
Paraphernalia were also discrete acts committed and
Completed on the specific date charged in the complaint and
Garelsted fo the ate of the distribution charges in the
Satan matter.
3. here de no basis to conclude the distribution
arose "fron the same episode." HRS {5} 701-108(2)-
Recora{] State vy Carroll, 6) Haw. 345, 627 P.2d 776 (2983)
10. Accordingly, {akau) has failed to substantiate
his contention that the instant prosecution ie barred by
operation of “HRS (86) 701-111(2) (b) and 701-209(2)-"
(Smphases and some brackets in original
c. entencing as a Firet~
the Drug Buy Case
on April 30, 2004, Akau filed a motion for sentencing
as a first-time drug offender, pursuant to HRS § 706-622.5. HRS
§ 706-622.5 (Supp. 2003) sete forth a sentencing scheme that
° me cirouit court made the following additional Fors in denying
xeau's notion to dlamiea®
12, [HPD] Officer Shellie Silva testified that the
@iseribution [offenses in the drug buy) case|) were not
referred inmediately to the (p]rosecutor’s (o]ffice as to
not compromise the identity of the undercover officers who
‘were still involved in ongoing investigations unrelated to
the instant matter.
22, There was no evidence that the prosecution delayed in
bringing the indictment in the instant matter in order to
gain a tactical advantage over [Aksu] or to unfairly cause
Sr expose him to stiffer penalties or punishment
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Girects the sentencing court, in certain circumstances, to
sentence first-time drug offenders to probation and drug
treatment rather than imprisonment. At the May 20, 2004 hearing
on the motion, Akau essentially argued that it was unfair to
sentence him as a first-time drug offender in the search warrant
case when the offenses in that action occurred subsequent in time
to the offenses for which he was indicted in the drug buy case.
He clained that he did not receive the benefits of the first-time
Grug offender statute because the search warrant case and the
drug buy case were brought separately, as opposed to all offenses
being joined in a single prosecution. The prosecution admitted
that the situation "[4id] look unfair to the defendant,~ but
argued that Aksu would not have been eligible for sentencing as a
first-time drug offender for the drug buy case even if those
charges had been joined with those in the search warrant case
because HRS § 706-622.5,' by its express terms, is limited only
+ WRB § 706-622.5 states in relevant parts
Sentencing for first-time drug offenders) expungenent.
(2) wotwithseanding any penalty or sentencing provision
under part IV of chapter 712, a person convicted for the
Kirst tine for any offenee under part IV of chapter 712
involving posssteion or use, not including to distribute or
‘aanufacture ... of any dangerous drug, detrimental érua,
harmful drug, intoxicating compound, maijuana, or sarijuana
concentrate, as defined in section 722-1240, oF involving
possession Or use of arug paraphernalia under section 329-
43.5, who ig nonviolent, as determined by the court after
reviewing the
(a) Criminal history of the defendant
(b) Factual cireunstances of the offer
the defendant is bes
(c) Other information deemed relevant by the court;
shall be sentenced in accordance with subsection (2);
Provided that the person does not have a conviction for any
(Continued...)
for whieh
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to possession offenses, not distribution offenses. The circuit
court denied Akau's motion for sentencing as a first-tine
offender on June 18, 2004. The circuit court agreed with the
prosecution and concluded, inter alia, that “HRS (§] 706-622.5
does not apply in drug distribution cai
Akau’e Conditional Plea and Sentence
Prior to the circuit court’s ieauance of the orders
denying Akau’s motions to dismiss and for sentencing as a first-
time drug offender, Akau entered a conditional guilty plea,
pursuant to HREP Rule 11(a) (2), quoted supra note 3, to the
charges in the drug buy case. At the hearing on Akau's change of
plea, the circuit court stated:
{HE COURT: Im well aware of this case. This wae a search
warrant case initially. And then the governnent chose to
ne the undercover officers to do the -- waa it
(confidential informants) or {undercover officers)?
(AKAU'S COUNSEL]: [Undercover officers.]
THE COURT: The undercover officers to get sales cases. And
there's # squabble, which 7 totally understand, whether the
law allow it. I tried real hard to either aectie thie case
or to figure out 2 way co cut [Akau] sone slack. I'm aking
@ transcript now for the [alppellate [clourt.. i couldn't do
ic, because 1 have an oath to follow the law. I can’t Just,
based on the length of my foot or what I had for breakfast,
take care of (Akau]. But I think I made 2 thorough record
So maybe the [alppeilate (clourts might see it differently
*(..-eontimued)
‘Violent felony for five years innediately preceding the date
of the comission of the offense for nich the defendant =
Being sentenced.
(2) "A person eligible under subsection (1) shall be
watenced to probation fo undergo and complete = drug
ment program
(Some empha
in original and sone added.)
sae
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On October 15, 2004, the circuit court accepted Akai
conditional plea, entered its judgment of guilty conviction, and
sentenced Akau to a ten-year term of imprisonment with a
mandatory minimum of six months, pursuant to HRS § 712-1242(3)
(Supp. 2003)." On December 8, 2004, Akau filed his notice of
appeal.
2. Appeal Before the Ica
on appeal, Akau argued, as he does in his
application, that the circuit court erred in (1) denying his
motion to dismiss inasmuch as the search warrant case and the
distribution case should be considered part of the “same episode”
and (2) denying his motion to be sentenced as a firat-time drug
offender. The ICA issued its $00 on September 21, 2007,
discussed more fully infra, rejecting Akau’s arguments and
affirming the circuit courts October 15, 2004 judgment. The ICA
filed its judgment on appeal on October 11, 2007. Akau timely
filed his application for a writ of certiorari on January 7,
+ the 2003 ve
ion of HRS § 712-1242(3)
Notwithstanding any iaw to the contrary, except for
3re sentenced under section 706-622.5, if
‘under this-nea walt
strip OF any of its
Salte, isomers, and salts of Tsoners, the person convicted
Shall be sentences inpriscnnen
often veara with a mandatory minimum cer of imprisonment.
Eng length of which ehall be not Jess than eix-wouthe and
ot greater than five years, at the discretion of the
Sentencing court
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2008. Thereafter, this court accepted Akau's application on
February 8, 2008 and heard oral argument on March 6, 2008
TT, STANDARDS OF REVIEW
401 indict
°A [circuit] court’ ruling on a motion to dismi
an
indictment is reviewed for an abuse of discretion.” state vs.
Mendonca, 68 Hawai'l 260, 283, 711 P.24 731, 734 (1985)
(citations omitted) .
B. Statutory Interpretation
We review the circuit court's interpretation of a
statute de novo. State v. Pacheco, 96 Hawai'i 83, 94, 26 P.3d
572, 583 (2001).
III. DISCUSSION
As previously stated, Akau essentially contends that
the ICA erred in affirming the circuit court's denial of his
motions to dismiss and for sentencing as a first-time drug
offender. We first address Akau’s argument with respect to his
motion to dismiss.
A. Motion to Dismiss
on application, Akau argues -- as he did before the ICA
-+ that the search warrant case and the drug buy case should have
been tried together as mandated by HRS §§ 701-111(1) (b) and
701-109(2) because both cases “[arose] from the same episode.”
As previously quoted, HRS § 701-111 provides in relevant part:
“3+
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hen prosecution 1s barred by former prosecution for a
‘Aitterent offense. Richeueh = prosecution 12 for 3
yiglation of a difterent statutory provision or is based oo
‘Gitterent facta. it is barred by a former prosecution under
‘any of the following circumstances
Ti) The former prosecution resulted 1n an acquittal
“hich nas not subsequently been set aside oF i
f conviction as defined in section 701-110(0) [,
quoted gupra sote'5,] and the subsequent
Prosecution is for:
ib)" fay oftense for which the defendant should have
Deen_cried on the firat proecubion under
fection 101-109 ualese the court ordered 8
Separate trial of the offensel.]
(Bold emphasis in original and underscored emphases added.) In
turn, HRS § 701-109 provides in relevant part
(2),, Except as provided in subsection (3) of this
section, (*)
Ecials for mitiple offenses based on the same conduct ox
arising from che sane episode, if such offenses are known Co
the appropriate prosecuting officer at the tine of the
comencenent of the first trial and are within the
Serisdiceion of a single cours
(Bmphases added.) Inasmich as "it is axiomatic that the ‘same
criminal episode’ element of the compulsory joinder rule is not a
self-defining concept [,]*" People v. Miranda, 754 P.2d 377, 360
(Colo. 1988), we first examine this jurisdiction's interpretation
of the above statutes and, specifically, the definition of the
ARE § 701-109(3) tater
When a defendant is charged with two or more offenses
based on the same conduct or arising from the same episode,
the court, on application of the prosecuting attorney or of
the defendant, may order any such charge co be tried
Separately, if it ie satisfies that justice 20 requires
Accordingly, based on HRS § 701-109(3), it appears that, prior to the
Of Akau's plea of no contest in the search warrant cage, the prosecution
have sought permission from the circuit court to bring the cas
ely. However, neither the circuit court, the ICA, nor the parties
Sddreas the effect of HRS § 701-109(3) on this case.
oa4e
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Sees
same episode” before delving into the correctness of the ICA's
coneluaions.
1, Hawai'i case Law
a. the Carrol) case
In State v. Carroll, 63 Haw. 345, 627 P.2d 776 (1981),
the defendant was arreated for allegedly starting a fire at
school. Id. at 346, 627 P24 at 777. The arresting police
officer conducted a routine search of the defendant and found a
canister in the defendant’s possession. Id, Believing that the
canister contained nasal spray, the officer returned it to the
defendant. Id, The defendant was then transported to the police
station and booked for attempted criminal property damages in the
second degree. Id, During a custodial search, a second officer
recovered the cannister and identified it as mace. Id. The
defendant was subsequently charged with possession of an
obnoxious substance. Id, The defendant was first tried and
acquitted of the misdemeanor charge of possession of an obnoxious
substance -- the mace. Id, at 346-47, 627 P.2d at 777-78. The
Gefendant was subsequently brought to trial on the attempted
criminal property damage charge. Id, at 347, 627 P.2d at 778.
The defendant moved to dismiss the indictment, arguing that
(2) the two offenses were part of a single “episode within the
context of HRS § 701-109(2)" and, (2) inasmuch as the offenses
were part of the same episode and not prosecuted in the sane
proceeding, the second ci
was prohibited by
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HRS § 701-2122) (b). Id, (internal quotation markee omitted)
The trial court granted the defendant’s motion to dismiss the
indictment, and the prosecution appealed. Id. On appeal, this
court observed that:
(us) § 702-1092) reflects a policy that a
Gefendant should sot have co face the expense and
Uncereaineies of mltiple trials based oh fatly che
sane conduct oF episode. It Le designed to prevent the
prosecution) from haragsing a defendant with successive
prosecutions where the (prosecution) is dissatisfied with
Ehe punichnent previously ordered or where the (prosecution!
has previously failed to convict the defendant.
Id, at 352, 627 P.2d at 780 (citations omitted). Thie court held
that the preconditions for the application of HRS § 701-109(2)
had been satisfied inaemich
(2) it was “uncontested that the
appropriate prosecuting officer was aware of the
lalttempted [clriminal [plroperty (damage charge at the time
that the possessory charge was prosecuted” and (2) “both charges
[were] clearly within the jurisdiction of a single court." Id.
at 349, 627 P.2d at 779 (footnote and citations omitted)
Additionally, this court declared that, “[iJn view of the dual
considerations of fairness to the defendant and society's
interest in efficient law enforcement,” the “test for determining
the singleness of a criminal episode should be based on whether
the alleged conduct was so closely related in tine, place and
circumstances that a complete account of one charge cannot be
related without referring to details of the other charge.” Id.
at 351, 627 P.2d at 780. Applying the test to the facts
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presented, thie court held that the two cases did not arii
the ‘same episode” because:
[the] defendant vas charged with the comission of offe:
which occurred at different tines and places and under
Gitferent cireunetances. Our rationale is based primarily
fon the fact that the srvesting officer failed to recognize
Che illegal nature of the cannister at the tine of the
beareh for weapons. Asa result, defendant's possession of
the (elace continued after Bis initial arrest, until the
fubsequent discovery and identification at the police
Station
Id. at 352, 627 P.2d at 781. ‘This court further reasoned that:
nile Se 12 true that the possessory offense can be
traced to the time of the firet arrest, we cannot say that
the possessory charge should be deened effective as of the
Elmevof that arrest. the point in tine at which the [n]ace
wan identified i inportant because prior to the
TStae!tiatise. fhe Pocus and’ clecungtanser wishin che iret
9 believe the 2 ye other [el rimi
ae
1d. (emphasis added) (citations omitted). Accordingly, the
carroll court rev
defendant's motion to dismiss, Id. at 353, 627 P.2d at 782.
ed the trial court's order granting the
» serv:
This court, in State v, Servantes, 72 Haw. 35, 804 P.2d
1347 (1991), had an opportunity to apply the test announced by
the Carrol] court. In Servantes, a police officer observed a
passenger in the defendant's car smoking a marijuana cigarette.
Id. at 36, 804 P.2d at 1348. After ordering the passenger out of
the car, the police officers discovered a bag of marijuana in
plain view on the driver‘s side of the car next to the
defendant's foot. Id. The bag was seized, and the defendant and
the passenger were arrested for promoting a detrimental drug in
-17-
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the third degree, a misdemeanor. Id, at 36-27, 604 P.2d at 1348.
‘The defendant's car was towed to the police tation; four daye
later, after obtaining a search warrant, the police discovered
and seized cocaine and drug paraphernalia from the vehicle. Id.
at 37, 804 P.2d at 1348. ‘The defendant was arrested and charged
with promoting a dangerous drug in the third degree and
possession with intent to use drug paraphernalia, both class C
felonies. Id. The defendant entered a nolo contendere plea to
the misdemeanor charge and was sentenced. Id, Subsequently, the
defendant woved to dismiss the felony indictment on the grounds
that HRS §§ 702-111(2) (b) and 701-109(2) barzed the prosecution
from proceeding on the felony charges. Id, The circuit court
denied the defendant’s motion to dismiss, finding that “the
sarijuana offense occurred at a different time, place and
This court, in
circumstances from the felony offenses." Id.
reversing the trial court’s ruling, stated that:
in carroll, we reasoned that defendant's possession of the
{mjace continued until the discovery and identification ae
the pollee station. citvina the (mlsce,
‘facts_and circumstances known to the firet officer aid not
‘ford probable cauge £0 believe that an offense other than
Here, (the defendant] lost possesion of both the
wrijuana and cocaine when he was arrested and bis car
xed. Moat importantly, police had probable cause at the
Sime of {the defendant's] arrest on the marijuana offense to
‘guspact {the defendant] of possession of additional {liegal
ruse.
Furthermore, we cannot ignore that [the defendant’ s]
notion, filed previous to trial, to suppress the evidesce
Seized’ fron his car is obviously part of the trial
Proceedings. in the course of the suppression hearing, the
erosecut ion] would have to refer tos factual account of
forthe search. A fortiori, the felony charge cannot be
fried without wention of the misdeneancr offen!
-18-
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Id, at 39, 804 P.2d at 1349 (emphases added). Accordingly, this
court held that “the [prosecution] was barred under [HRS]
§ 701-109(2) from prosecuting [the defendant] for the felony
offense! of possession of cocaine] by hia conviction on the
misdeneanor marijuana possession charge." Id.
c. the Keliiheleua case
In State v. Keliiheleua, 105 Hawai'i 174, 95 P.3d 605
(2004), this court again applied the Carroll test to determine
whether two criminal offenses, prosecuted separately, were barred
pursuant to HRS §§ 701-111(1) (b) and 701-109(2). In Ke! a,
the defendant's van “drifted across three lanes of freeway and
rear-ended a parked car." Id, at 176, 95 P.3d at 607. A
passenger in the defendant's van and the driver of the parked car
were both injured. I
At the tine of the accident, the
defendant did not have insurance; however, he “obtained an
insurance policy later that sane day." Id, ‘After obtaining the
policy, he falsely represented the date and time of the accident
as occurring subsequent to the initiation of the policy.” Id.
During the police investigation of the accident, the Insurance
Fraud Division of the state of Hawai'i Department of Commerce and
consumer Affaire (OCCA) began a separate investigation of the
defendant’s purported insurance fraud. Id, The DCCA
investigator testified he had no knowledge regarding the "pending
criminal investigation for the negligent injury case.” Id. As a
ult of the DCCA investigation, the defendant was charged with
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insurance fraud and attempted theft in the second degree. id. at
177, 95 P.3d at 608. On Decenber 6, 2001, the defendant pled no
contest to the charges of insurance fraud and attempted theft in
the second degree and moved for a deferred acceptance of hia
plea, which was granted. Id, Thereafter, on July 17, 2002, asa
result of the HPD's investigation, the prosecutor's office
formally initiated prosecution against the defendant as a result
of the accident itself. Id. On September 19, 2002, a grand jury
indicted the defendant on the charge of negligent injury in the
first degree. Id. The defendant then moved to dismias the
negligent injury indictment, arguing that the case vas barred
pursuant to HRS §§ 701-111(2) (b) and 701-109(2). Id.
at 178, 95
P.3d at 609. The circuit court denied the defendant's motion.
Id. Thereafter, the defendant entered a conditional plea of no
contest and subsequently appealed. Id. On appeal to this court,
the defendant argued, inter alia, that the negligent injury case
should have been dismissed pursuant to HRS §§ 701-121(1) (b) and
701-109(2). Id. This court reasoned that: (1) “although the
rotor vehicle accident and fraudulent insurance claim occurred on
the sane day, they did not occur at the same time"; (2) "although
the record does not so indicate, the places where [the d]efendant
committed the offenses were presumably different; and (3) the
circumstances were not similar because "the facts and isques
involved in the charges (namely, the statutory requirements of
the alleged offenses) are dissimilar.” Id, at 161-62, 95 P.3d at
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612-23 (footnote omitted). Accordingly, this court held that,
“{hecause the criminal offenses in question are not closely
e}lated in time, place and circumstances, they did not arise
from the sane ‘epieode,’ (and, clonsequently[,] HRS §{1 701-
109(2) does not apply to this case." Id, at 162, 95 P.3d at 623
(footnote omitted). In so holding, thie court distinguished the
facts in the case at bar from Sexvantes, which was relied upon by
the defendant, stating that:
Here, there yas _no reason to suspect that subsequent to
= dent, aE
Spain an inuurance policy and thes file a fraudulent
naurance-clain. furthersore, unlike the offenses involved
in pervantag, the negligent injury charge can be tried
wlehout mention of the fraud case:
Id. (emphasis added) .
2. Application of the Compulsory Joinder statute in
thie Case
on dixect appeal before the ICA, the prosecution argued
that the circuit court correctly determined “that there was no
basis upon which to conclude that the distribution offenses in
] and the search warrant . . . case arose ‘from
the same episode.'* Specifically, the prosecution asserted:
ie also note here our agreement with the interpretation of
Kelisheleua set forth in che concurring opinion. See Concurring Opinion by
Aeoba, J. (Concurring op.) at 2-3 0.2.
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were, the circuit court was correct [that] the distribution
offenses and the search warrant case did not arise from the
jane episode or conduct. [*] The drug buya were conducted
3t tines separate and apart from the execution of the search
‘arrant, “There were entirely different witnesses involved
In'each offense. “the offenses were discovered under
aitferent circumstances and were not relaved in tine, place
and circunstances. ‘The fact that the buys were used as &
Bisis co support the search warrant aid mot require the
Offenses be charged together
da. at 13.
in affirming Akau's conviction, the ICA agreed with the
prosecution and rejected Akau’s arguments that all of the charged
offenses were required to be joined in a single prosecution.
specifically, the ICA explained that:
Akau'e case a similar to [Sexvantes) because the
[prosecution's drug buy case] against Aksu provided the
[prosecution] with provable cause to search his person and
personal effects. The prosecution’ s] search warrant, in
Eurn, gave rise to the [search warrant case). However,
Akau's case is distinguishable fron Sexvantes because che
Search warrant for Aksu was based on three separate
Buys/sales for crystal nethanphetanine from/to him conducted
on three separate buys/sales of crystal methamphetamine
Fron/to him conducted on three separate dates (October # and
22 and Novenber 21, 2002) ~~ all made before the police
department executed its search warrant on Akau and bis
personal effects on Novenber 26, 2002. ‘The dates and
Elrcumstances involved in the [drug buy case] and (the
(roh warrant case) were nore disparate than were the dates
3 Im go asserting, the prosecution relied on this court’s decision in
State v. Lessary, 75 Haw. 446, 462, 865 7.24 150, 156 (1984), for the
Bropoaition that ** (p]rosecutions are for the same conduct 1f any act of the
Sefendant Ls alleged to constitute all or part of the conduct elenente of the
offenses charged in the respective prosecutions.” However, the prosecution's
Fellance on Lamuary is misplaced. in Lgugary. this court held that the "sane
conduct” test applies under the double jeopardy clause of the Hawai'i
constitution. 75 Haw. at 458-59, 865 P,24 at 156, This court specifically
Shdicates that 1t was not applying the veane episcde" test articulated in
Garreld and that the defendant was “confusing the "sane conduct’ test with the
ne episode’ test." 1d. at 461, 865 P.24 at 157. Here, the prosecution
appears to confuse thie court's double jeopardy jurieprudence with its
compulsory joinder jurisprudence, Moreover, « number of jurisdictions
Sooking at the interplay setween double jeopardy protections and thelr
compulsory joinder statutes, have held that, when applicable, “the compulsory
Joinder rule... offer(s] ‘greater protection to the accused than does the
double Jeopardy clause.” 603 2.24 1031, 1036 (Pa.
Super. ce. 1992); gee aleo People v. Miranda, 1542.24 379, 380 (Colo. 1968).
in
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SSMS
nd circunstances in the two cases involved in Semvantes.
Hence, we do not agree that the [search warrant case] and
{the drug buy cage! were part of the “sane episode” and, as
uch, should have Been consolidated into one trial
Beau's cage is more like (Kelilbeleus) in that the
criminal offenses were not closely related in time, place
‘The Supreme Court of Hawal‘s explained in [Carroll]
chat HRS's 761-109 (2) wae devigned to prevent the State fron
harassing a detendant with successive prosecutions where the
State had failed to convict the defendant or was
Gissatiefied with the punishment previously ordered
Rowever, the state's conviction of Akay in the (search
Warrant case) was successful, as Akau waa convicted of
iplronsting a [élangeroue (djrug in the (t/hira (e)egree and
[Slniawtul (alae of [é)rug (plaraphernialia and sentenced to
2 term of five yeare of probation and one year of
Jncarceration. “There is no evidence in the record on appeal
that the [prosecution] attempted to harass. Akas by
prosecuting the [search warrant case) separately from the
Tarug buy case]
ICA Sp0 at 3-4.
Akau, however, contenda that the ICA “committed grave
error in being too mechanical and rigid in its approach to the
facts of this case and interpretation of case law."
specifically, Akau argues that
[elhis is evidenced in the [ICA's) own language found on
page [three] of the (500) Second full paragraph [.1
Sherein the (Ica) at firee tate (a) that the prei
Similar to State v. servantes. 72 Haw. 35, 808 P.24 1347
[beat and Enea Tp Eee ane Brent dlatinguishes Alay tron
vanteg by invoking the *.. 90 closery retaved in Eine,
Place and circumstances... language. from
Patne ue che obvious that’ the three Buye/eales occurred ca
Gitterent dates {) -- ignoring the commonality of purpose of
‘each buy/eale.
ven though this case might constitute an anomalous
situation (referred to [inl the [olpening (blrief as the
Skkau anonaly-), this court, nevertheless, should be
concerned with the administration of justice, [clf., Skate
Soong, 97 Hawai'i ‘S12, 40 P-3d 914 (2002) (1
(ellipses in original.) Ia.
As previously stated, criminal offenses that are “based
on the same conduct or aris{e] from the same episode" must be
joined in a single prosecution "if such offenses are known to the
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in West’s Hawai'i Reports and the Pacific Reporter
appropriate prosecuting officer at the time of commencement of
the first trial and are within the jurisdiction of a single
court." HRS § 701-109(2). If the prosecution fails to bring
such cases together, the subsequent charges are barred. HRS
§ 701-211(2) (b). Here, the evidence demonstrates (1) that at the
time Akau entered his plea of no contest in the search warrant
case the appropriate prosecuting officer was aware of the
existence of the three undercover drug buys inasmich as they
served ae the bases for the search warrant that ultimately led to
the charges levied against Akau in the search warrant case and
(2) that both cases were within the jurisdiction of a single
court -- the Circuit Court of the First Circuit. Additionally,
the parties do not dispute, and we agree, that the search warrant
case and the drug buy case were not based on the same conduct.
Accordingly, the relevant inquiry before us narrows to whether
both cases “[arose] from the sane episode."
In Carroll, this court announced that the “test for
determining the singleness of a criminal episode should be based
on the all
place and circumstances that a complete account of one charge
cannot be related without referring to details of the other
charge.” 63 Haw. at 351, 627 P.2d at 760 (emphasis added). The
time” and “place” factors of the Carroll test are easily
determined and straightforward to apply. However, as discussed
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in West's Hawai'i Reports and the Pacific Reporter
ee
more fully infra, the “circunstances" factor of the test is more
difficult to define and apply.
With respect to the “time* factor, the evidence in the
Anstant case indicates that the undercover drug buys occurred on
three separate occasions -- October 8, 22, and Novenber 21, 2002,
‘The search warrant was executed on November 26, 2002 -- five days
after the last drug buy. Thus, the facts unequivocally establish
that the drug buy offenses and the search warrant offenses did
not occur on the same day or at exactly the same time. However,
in Servantes, thie court determined that the lapse of several
days between the discovery of the first criminal offense and the
second offense was not fatal to the defendant's argunent that the
two criminal offenses “[arose] from the same episode.”
Servantes, 72 Haw. at 37, 804 P.2d at 1348. In our view, the
span of five days between the last undercover drug buy and the
execution of the seazch warrant, or even the forty-nine days
between the first drug buy and the execution of the search
warrant, is not so disparate as to render the drug buy offenses
and the search warrant offenses separate episodes. Thus, because
the drug buy offenses and the search warrant offenses were
closely related in time, we believe the time factor has been met
With respect to the “place” factor, we expressed
concern in Kelitheleua, that “defining ‘place’ as broadly as the
entire city and County of Honolulu would unduly hamper the
administration and application of HRS § 701-109(2)." 105 Hawai'i
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in West's Hawai'i Reports and the Pacific Reporter
at 181, 95 P.3d at 612. However, auch concern is not present in
the case at bar inasmuch ae the evidence established that the
place where two of the three drug buys occurred and the place
where the search warrant was executed were the same or
similar -- i.e, in an area fronting @25 and 835 Keeaunoku
Street. The third drug buy occurred inside the men’s restroom of
the Daied store on Kaheka Street. we take judicial notice that
the distance between the Daiei store and the place where the
search warrant was executed is approximately .25 miles or about
three blocks. See State v. Puaoi, 78 Hawai'i 185, 191, 991 P.2d
272, 278 (2995) (holding that “geographical facts, such as
whether a particular address is within a certain city and county
of the state, is a proper matter subject to judicial notice"
(internal quotation marks and citations onitted)). Thus,
inasmuch as (1) the place where the first two drug buys occurred
and where the search warrant was executed was the same or similar
and (2) the third drug buy occurred within close proximity of the
place where the search warrant was executed, we likewise believe
the “place* factor has algo been met
With respect to the "circumstances" factor of the
Garrol] test, a close reading of our relevant case law reveals
that a common thread runs throughout these cases -- that ie, an
examination of whether the facts and circumstances of the first
discovered offense provided sufficient probable cause to suspect
that the defendant had committed or would commit the second
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in West's Hawai'i Reports and the Pacific Reporter
discovered offense. For example, in Carroll, this court
determined that the two charged offen:
attempted criminal
property damage in the second degree and possession of an
cbnoxious substance (mace) -- were not part of the “same episode”
because,
,
prior to the identification of the mace), the facts and
bir within che firs ficar's
ae [alee e083 if che
63 Haw, at 352, 627 P.2d at 781 (emphases added). Likewise, in
utilizing a probable cause analysis, this court in Servantes
determined that the defendant's marijuana possession offenses and
ion offenses *[aro:
cocaine po from the same episode,”
reasoning that, “[mJost importantly, [the] police had probable
cause at the time of [the defendant's} arrest on the marijuana
offense to suspect (the defendant) of possession of additional
stlegal drugel, iue., cocaine].* 72 Haw. at 39, 804 P.2d at
1349. Pinally, in Keliiheleua, this court held that the
negligent injury charge and the charges in the fraud c
je did not
arise from the “
ne episode because, inter alia, “there was no
reason to suspect that(,] subsequent to causing the motor vehicle
accident, [the dlefendant would obtain an insurance policy and
then file a fraudulent ingurance claim." 105 Hawai'i at 162, 95
P.34 at 613. Based on the foregoing, we believe that the
relevant case law in this jurisdiction establishes that, when
examining the “circumstances” of offenses alleged to be part of
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in West's Hawai'i Reports and the Pacific Reporter
the “sane episode,” thie court has focused primarily on whether
the facts and circumstances of the first discovered offense
provided sufficient probable cause to suspect that the defendant
had committed or would commit the second discovered criminal
offense
In this case, the undisputed facts and the reasonable
inferences therefrom establish that: (1) Akau sold drugs to
undercover police officers on three separate occasions, each of
which was sufficient to charge him with promoting a dangerous
Grug in the second degree; (2) the three drug buys, however, also
provided sufficient probable cause to suspect that Akau would
commit additional drug offenses; (3) rather than refer the drug
buy evidence to the prosecutors, the police opted to obtain a
search warrant based upon the drug buys; (4) the three previous
drug buys provided sufficient probable cause for the search
warrant; (5) the execution of the search warrant ultimately led
to the possession and paraphernalia charges; and (6) the
prosecutors were clearly aware of the distribution offenses at
the time they made the decision to charge Akau in the search
warrant case, Additionally, we observe that the circumstances
involved in the three undercover drug buys were also similar to
the circumstances involved in the execution of the search warrant
inasmuch as all the offenses were drug related, i.e., they
involved the sale and/or posse:
ion of crystal methamphetamine or
crystal methamphetamine paraphernalia. Because the circumstances
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in West’s Hawai'i Reports and the Pacific Reporter
of the drug buy cage and the search warrant case are closely
related, we believe the “circumstances* factor has been met.
Accordingly, we hold that the charged offenses in the
search warrant case and the drug buy case arose from the “same
episode" inasmuch as Akau’s conduct was “so closely related in
time, place and cixcunstances that a complete account of one
charge [could not have been] related without referring to the
details of the other charge." Carroll, 63 Haw. at 351, 627 P.2d
at 780. The dissent, however, disagrees, contending that “the
offenses allegedly conmitted in the drug buy case and the
possession case [were] not so ‘closely related in time, place,
and circumstances,’ that a ‘substantial factual nexus’ existe
between the two casi xanda, 754 P.24 [377,] 362
[(colo, 1988) (en banc)], whereby ‘a complete account of one
charge cannot be related without referring to details of the
other charge[.]" Dissenting op. at 10-11 (bold emphasis added)
(underscored emphases provided by dissent) (citations to Carroll
omitted), The dissent’s belief that a “substantial factual
nexus” must be present misconstrues the Carroll test.
5 In Miranda, the Colorado Supreme Court applied the test for
determining wien two cages arose from the same episode in its wn
Suriediction. See Miranda, 754 P.24 at 380-6) (collecting cases and
Concluding that "(f]or purposes of compulsory joinder, the requirenent that
‘rise out of ‘the same criminal epigode,” must be interpreted to
je the condition that the offenses be connected in such @ manner that
provecution of the offenses involved substantially interrelated proof"). Wey
however, are bound by our own precedent, ‘Recordingly, the
e disregard of the
Gnuneiated in an out-of seal
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
First, under the compulsory joiner statutes, multiple
offenses that are closely related in time, place, and
cArcumstances mist be known to the prosecuting officer. See HRS
§ 701-109 (2) (stating in part that ‘a defendant shall not be
subject to separate trials for multiple offenses based on the
same conduct or arising from the same episode, if auch offenses
are known to the appropriate prosecuting officer"). and, second,
such knowledge mist be known “at the time of the commencement of
the first trial(.]* Id. (emphasis added). In other words,
because a defendant shall not be subjected to multiple trials,
prosecutors -- at the tine they review evidence submitted by the
police that involve miltiple offenses comitted by the defendant,
or at least by the tine of trial (if those offenses were charged
in separate cases) -- must necessarily consider whether the
offenses involve the same conduct or whether the alleged conduct
constitutes a single episode.
Third, in deciding the singleness of a criminal
episode, the prosecutor must,
indicated by our case law,
consider “whether the alleged conduct was so closely related in
time, place and circumstances that a conplete account of one
charge cannot be related without referring to details of the
other charge.” 63 Haw. at 351, 627 P.2d at 780. In making
charging decisions, prosecutors “ghal. or cause to
be instituted criminal charces when . . . it is obvious that the
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in West’s Hawai'i Reports and the Pacific Reporter
charges are not supported by probable cause.” Hawai'i Rules of
Professional Conduct, Rule 3.8(a) (2004) (emphases added) .
In the instant case, the prosecutor, in making a
determination of the specific charges to be brought against Akau,
would necessarily have been required to review the police
affidavit in support of the search warrant -- that included a
factual accounting of the undercover drug buys, i.e., whether
there was probable cause to sustain criminal charges. In
conducting auch review and evaluating probable cause, it is
apparent that a complete account of the search warrant offenses
could not be made without reference to the details of the
undercover drug buys. Consequently, we also hold that all of the
offenses brought against Akau should have been joined in a single
prosecution.
Finally, our holding today is consistent with and
promotes the policies underlying Hawaii’s compulsory joinder
statutes, HRS §§ 701-211(4) (b) and 701-108(2), i.e, “fairness to
the defendant’ and “society's interest in efficient law
MWe recognize that, even though multiple offenses are know to the
prosecutor during the charging decision stage, the compulsory joinder statutes
Bovnce mandate that the prosecutor charge all of the offenses in a single
Sompiaint of indictment. Indeed, the prosecutor way charge the offenses in
arate couplainte or indlctsente; however, HRS § 703-109(2) appears to
EShtenplate tna, when the offenses arise from a single episode and are in the
Jurisdiction of a single court, the prosecuting officer must, at least by "the
Une of the commencement of the first trial," HRS § 701-103(2), decide to seek
(ae required by HRS § 701-209(2)) oF separate
Erlais (as permitte s"yoi-109(3))., Otherwise, once the first trial
Commences, the prosecution ruse the risk of having the subsequent-charged-
offenses diamisued of guilty verdicte on those charges overturned.
“31
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in West's Hawai'i Reports and the Pacific Reporter
enforcement." Carroll, 63 Haw. at 351, 627 P.2d at 780. As
stated by this court in carroll:
Compulsory joinder of offenses which share a proximity in
P
conduct or episode, but it would algo save the defendant and
‘the (prosecution) time and money -]
Id, Likewise, the conmentary to HRS § 701-109(2) states that
*[t]hese rules reflect a policy that defendants should not have
to face the expense and uncertainties of two trials based on
essentially the same episode.” Connentary to HRS § 701-109. As
nore aptly stated by the Pennsylvania Supreme Court, where two
criminal cases “arise from the
me episode" but are not joined,
the criminal defendant is forced to “run the gauntlet repeated
times and confront the awesone resources of the state.”
Somonwealth v. Nolan, 655 A.24 634, 639 (Pa. 2004) (quoting
Commonwealth v. Hude, 458 A.2d 177, 180 (Pa. 1963)) (internal
quotation marks onitted)
Here, Akau wi
potentially facing “the expense and
uncertainties of two [criminal prosecutiona] based on essentially
the same episode.* Comentary to HRS § 701-109. At the time
‘Akau entered his no contest plea and wae sentenced in the search
warrant case -- in February and April 2003, respectively -- he
was unaware that law enforcement officials, who had knowledge of
the drug buy offenses, would be indicting him in the drug buy
case. Having such awareness would presunably have had some
impact on Akau‘s trial strategy, including his decision to plead
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in West's Hawai'i Reports and the Pacific Reporter,
no contest to the charges in the
arch warrant case. Moreover,
we observed in Carroll that HRS § 701-109(2) was “designed to
prevent the prosecution] from harassing a defendant with
successive prosecutions where the [prosecution] is dissatisfied
with the punishment previously ordered or where the {prosecution}
has previously failed to convict the defendant.” Carroll, 63
Haw. at 352, 627 P.2d at 780 (citation omitted). Inasmuch as law
enforcenent officials had knowledge of the drug buy offenses at
the time the search warrant offenses were charged, but,
nevertheless, choose to bring two separate cases at different
times, Akau was subjected to harassment with successive
prosecutions
Additionally, “society's interest in efficient law
enforcement,” Carrol], 63 Haw. at 351, 627 P.2d at 780, lies in
“judicial administration and economy," Hude, 458 A.2d at 180, As
such, we believe that, under the circumstances of the case at
bar, this policy consideration also weighs in favor of compulsory
Joinder because the prosecution could have charged all of the
offenses together in a single prosecution, which would have saved
the judiciary the expenses associated with having to deal with
the two cases separately, including the potential of holding two
trials. To hold otherwise would “unduly encourage pursuit and
surveillance for lengthy periods of time and multiple
prosecutions from the eventual arrest,” Morgan v. State, 469
8.8.24 340, 343 (Ga. Ct. App. 1996), @ result surely not
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in West’s Hawai'i Reports and the Pacific Reporter
supported by either the plain language or purpose of HRS
§§ 701-111 (3) (b) and 701-109(2). Although the prosecution claims
that it could not bring all the charges in a single prosecution
because one of the undercover officers involved in the drug buys
had not yet “surfaced,” the prosecution's claim is weakened by
officer Silva’s testimony that, even after Akau was indicted in
the drug buy case, one of the undercover officers involved in the
drug buys had not yet surfaced. In other words, it appears that
the “surfacing of undercover officers does not necessarily
affect the prosecution's ability to bring charges based on
undercover drug buys. As such, the policies expressed by ERS
$5 701-211(1) (b) and 701-109(2) further compel this court to
conclude that the offenses contained in the search warrant case
and the offenses contained in the drug buy case should have been
Joined in a single prosecution.
Based on the foregoing discussion, we hold that the
circuit court erred in denying Akau’s motion to dismiss based
upon the prosecution’s failure to join the search warrant
offenses and the drug buy offenses ina single prosecution. As
such, we also hold that the ICA erred in affirming the circuit
court's erroneous denial.
3. Akau's Remaining Contention
Akau additionally argues that the ICA erred in
affirming the circuit court's denial of his motion to be
sentenced
a first-time drug offender pursuant to HRS
o34-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
§ 706-622.5. However, in light of our holding, as discussed
above, we need not examine Akau’s remaining contention on
application.
Iv. CONCLUSION
Based on the foregoing, we hold that, inasmuch as the
offenses associated with the
oh warrant case and the drug buy
case should have been joined in a single prosecution, pursuant to
RS § 701-109(2), the prosecution of the drug buy case was barred
by HRS § 701-211(3) (b). Accordingly, we reverse the ICA's
october 12, 2007 judgment on appeal and the circuit court's
october 15, 2004 judguent of conviction in the drug buy case.
cnr retieioner defendant Yror—
Eppeliant, on the
application Besa TRL.
Loren J. Thomas, Deputy
Prosecuting Attorney, for Goren 6. Otis bre
respondent /plaintiff~
appellee
-35-
| 99edb37131b592fe00811db724e1bc9ffb1c5e8ed467fece601f48c5bbf757ba | 2008-05-30T00:00:00Z |
b6d386b9-89d9-476d-8537-e5293c799631 | In re Petition of Sterling | null | 29053 | hawaii | Hawaii Supreme Court | wo, 29053
IN THE SUPREME COURT OF THE STATE OF HAWAT'
In the Matter of the Petition of
JUDITH LEE STERLING, Petitioner
)RDER ITH TION FOR
‘Moon, C.J., for the court!)
upon consideration of the Verified Petition for Renewal
of Certificate of Specialization submitted by Petitioner Judith
Lee Sterling, Exhibits A and B, and the record, it appears
Petitioner Sterling has submitted insufficient proof that she
meets the requirements for recertification set out by Rule
1.13(g) of the Rules of the Supreme Court of the State of Hawai'i
(SCH). Although Petitioner Sterling has submitted a copy of the
specialist certificate issued by an ABA accredited program, i.e.,
the National Elder Law Foundation (NELF), which is valid until
April 16, 2008, Petitioner Sterling has not provided (1) evidence
showing completion of at least six hours of ABA accredited
Continuing Legal Education courses in the subject area for each
of the five years preceding the application for renewal, and (2)
proof she has maintained certification by NELF, the ABA
considered by: Moon, C.J., Levinton, Nakayama, Acoba, and Duffy, 99.
accredited program by which certification was initially granted.
Having failed to demonstrate proof that Petitioner Sterling meets
the requirements of RSCH 1.13(9),
IT IS HEREBY ORDERED that the petition for renewal is
denied. This denial is without prejudice to: (1)
reconsideration upon submission of evidence Petitioner Sterling
has met the requirements of RSCH 1.13(g), within 30 days after
entry of this order, or, (2) after 30 days, submission of a
subsequent petition that includes the required proof.
DATED: Honolulu, Hawai'i, April 1, 2008.
| aa44451690207838ca7e4f0aac1bd717f0192507788c09598192820b725389c4 | 2008-04-01T00:00:00Z |
85a369c1-c58e-4480-aab8-1541c1c56e4e | In re Simyar | null | null | hawaii | Hawaii Supreme Court |
no. 29087
IN RE TANNAZ SIMYAR, Petitioner.
ORIGINAL PROCEEDING
_DENYIN
Moon, C. J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
upon consideration of Petitioner Tannaz Simyar’s
Petition to Resign end Surrender License, the attached
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition does not
comply with the requirements of Rule 1.10(c) (ii) and (d) of the
Rules of the Supreme Court of the State of Hawai'i (RSCH), to
wit:
(1) paragraph 4 of the petition (that Petitioner
Simyar is in good standing with the Hawai'i State Bar
Association) is not supported by the Affidavit of Executive
Director Lyn Flanigan (Exhibit C), as required by RSCH
1,10(c} (44), a8 the affidavit covers the period only to December
31, 2007, and does not cover the period since then until the date
the petition was filed: and
(2) the certificate of service does not indicate the
date the petition was served by certified mail upon Disciplinary
Counsel, the Hawai'i State Sar Association, and the Lawyers’ Fund
for Client Protection. Thus, it cannot be determined whether the
petition was served at or before the time the petition was filed
with the Clerk, 2s required by RSCH 1.10(d). Therefore,
If IS HEREBY ORDERED that the petition is denied
without prejudice to the filing of another affidavit from the
omnes
Executive Director of the Hawai'i State Bar Association attesting
to Petitioner Simyar's current status and complete certificates
of service, provided such affidavit and certificates are filed
within one month of the date of entry of this order.
DATED: Honolulu, Hawai'l, April 22, 2008,
fe
EB cee
| 78a0fdf3818f3124d661c68b3adf50faa6138634303ec6b6d50efc1a3c868c7d | 2008-04-22T00:00:00Z |
d79b83bf-dfc9-4f26-9f63-0e625a75f652 | State v. Pond | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27847
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'L, Respondent-Appellee,
KEVIN POND, Petitioner-Appellant. 5
FF
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS | @
(BEACR. Nor OS-1-0627)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI
(By: Nakayama, J., for the court’)
Petitioner-Appellant’s Application for Writ of
is hereby accepted and will
Certiorari filed on January 28, 2008,
be scheduled for oral argument. The parties will be notified by
the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai'i, March 10, 2008.
FOR THE COURT:
Peaerds Wumieeyaror |
Associate Justice
=
s
oan
Deborah L. Kim
for petitioner-appellant
on the application
Levinson, Nakayama, Acoba and Duffy, 39.
‘considered by: Moon, ¢.J.,
| a7e7ae2909c0239af548d6ddd4facdb54ffd7832d02a2536c08dbcd864d0747e | 2008-03-10T00:00:00Z |
b8f7a1ee-0f5d-4c8e-93d9-48cfbb75ee55 | Boyle v. Maryl Pacific Constructors, Inc. | null | null | hawaii | Hawaii Supreme Court | No. 27382
BY 21 uyw cage
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
be
3S
PATRICK E, BOYLE, Claimant-Appellee-Appellant-Petitiorr,
MARYL PACIFIC CONSTRUCTORS, INC. and HAWAII INSURANCE GUARANTY
ASSOCIATION, Employer/Insurance Carrier-Appellant~Appellee~
Respondent.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(NO, AB 2002-358 (2-00-16298))
NG APPLI wi -ERTIORART
(By: Levinson, J., for the court',
and Acoba, J., dissenting separately.)
ono
upon consideration of the application for writ of
2008, by the claimant-appell.
certiorari, filed on January 25,
appellant-petitioner Patrick £. Boyle, the application is hereby
rejected.
Hawai'i, March 12, 2008.
FOR THE COURT:
gee =)
STEVEN H. LEVIN: a
DATED: Honolulu,
Associate Justide
Anson 0. Rego,
for the claimant-appellee~
appellant-petitioner
Patrick E. Boyle,
on the application
Considered by: Moon, C.J.» Levinscn, Nakayama, Acoba, and Duffy, 32
aaa
| 4f51fe083de08c7b601b11ac22b363ed4bd9c4cf01fce4b54cc4aab43121afa2 | 2008-03-12T00:00:00Z |
e73b1e6d-e357-468a-9c31-7400c68d476c | Moyle v. Y & Y Hyup Shin, Corp. | null | null | hawaii | Hawaii Supreme Court | tawuBRaRY
No. 26582
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
ROGER SCOTT MOYLE, Personal Representative Under Will of the
Estate of Richard Todd Moyle, Deceased,
Plaintiff-Appellant-Petitioner,
Y & Y HYUP SHIN, CORP., a Hawaii corporation, and TTJJKK INC.,
both doing business as DO RE MI KARAOKE,
Defendants-Appel lees-Respondents. a
seo? 3
(CIV. No. 011-2747) ee rc
Sf os
ADEE ACCEPTING APPLICATION FoR WRIT oF cEeTiomaRes|s = O
(By: Levinson, J., for the court!) aa
al =
Upon consideration of the application for writ of
certiorari filed on February 21, 2008 by the plaintirf-
appellant-petitioner Roger Scott Moyle, Personal Representative
Under Will of the Estate of Richard Todd Moyle, Deceased, the
application is hereby accepted.
IT-1S ORDERED that oral-argument s- shall -be-conducted-in
this case. The parties will be notified by the appellate clerk
regarding scheduling.
DATED: Honolulu, Hawai'i, April 4, 2008.
FOR THE COURT:
fore
aN
STEVEN H. LEVINSOBEAL “|
Associate Justhee s
Le op we
Gary Victor Dubin,
for the plaintiff-appellant-petitioner
fon the application
1 considered by: Moon, C.J.4 Le
een, Nakayama, Acoba, and Duffy, 99.
| f4a68eb495ebe7307cbc72ec003a7dfb05e62e79abf3ec493beb3dba82a57cdd | 2008-04-04T00:00:00Z |
aa688c27-ecc4-49b6-ac48-9726b777fd22 | Guajardo v. AIG Hawaii Insurance Company | null | null | hawaii | Hawaii Supreme Court | No. 27893
IN THE SUPREME COURT OF THE STATE OF HAWAT"
BANG JA GUAJARDO and RICHARD GUAJARDO, Plaintitss~
Appellant s/Cross~Appellees-Petit ioners,
00 HY 61 BH Oe
AIG HAWAII INSURANCE COMPANY, INC., Defendant-Appellee/Cross-
‘appellant-Respondent .
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 03-1-1981-08)
ORDER CATION FOR WRIT
(By: Levinson, J., for the court’)
upon consideration of the application for writ of
certiorari filed on February 11, 2008 by the plaintifts-
appellants/cross-appellees-respondents Bang Ja Guajardo and
Richard Guajardo, the application is hereby accepted.
37 IS ORDERED that oral arguments shall be conducted in
this case. The parties will be notified by the appellate clerk
regarding scheduling.
pare!
Honolulu, Hawai'i, March 19, 2008.
FOR THE COURT: ee
ie QB
STEVEN H. LEVINSOBre a) ©
Associate Justhce =
Tan L. Mattoch and
Daniel P. Kirley,
for the plaintiffs-appellants/
cross-appellees-petitioners,
on the application
Jonathan #. Steiner and
R. John Seibert,
for the defendant-appellee/
cross-appellant-respondent,
on the application
{considered by: Moon, C.J., Levinson, Nakayama, Accba, and Ouffy, JJ,
aa
| 33d551eb824c55c551defafd6eac818b66f9118f60a1dc14f0ea7ea807b65b58 | 2008-03-19T00:00:00Z |
27f0eae2-7f1f-4e86-b054-ee333e60a33a | State v. Gututala | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
NOT FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER *
wo. 27749
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAT'T, Respondent/Plaintiff-Appellee
ARTHUR SAMOA GUTUTALA, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NOS. 05-1-1378 and 5-1-1921)”
41 May aoa
iy
G24
(By: Moon, C.d., Levinson, Nakayama, and Duffy JJ;
‘and’ Acoba, J., Dissenting)
Petitioner Arthur Samoa Gututala seeks review of the
Intermediate Court of Appeals’ (ICR) August 3, 2007 judgment,
which affirmed the circuit court of the first circuit's
Decenber 14, 2005 Judgments of Conviction and Sentence in Cr.
No. 05-1-1378 and in Cr. No. 05-1-1921.? We accepted Gututala’s
application for a writ of certiorari and now vacate the judgment
of the ICA and remand to the circuit court for resentencing.
on July 6, 2005, Gututala was charged with Promoting a
Dangerous Drug in the Third Degree (PDD), in violation of HRS
§ 712-1243, and Unlawful Use of Drug Paraphernalia (UP), in
violation of BRS § 329-43.5(a). Gututala pled no contest to both
‘The Honorable Oexter Del Rosario preside:
NOT FOR PUBLICATION IN WEST'S HAWAN'
REPORTS AND PACIFIC REPORTER
counts. Subsequently, on September 15, 2005, Gututala was
charged with Unauthorized Control of a Propelled Vehicle (UCPV),
in violation of HRS § 708-836, and Driving Without License (DHL)
in violation of HRS § 708-836. He pled guilty to both counts.?
The prosecution moved to sentence Gututala to extended
terms of imprisonment as 2 “persistent offender,” under HRS
§5 706-661 & 706-662(1) (Supp. 2004). The circuit court granted
the motion based on its finding that such terms were necessary
for the protection of the public, and sentenced Gututala to
extended-tern sentences of ten years for each felony conviction:
ten-years imprisonment for PDD, ten-years imprisonment for UP,
and ten-years imprisonment for UCPV. In addition to the
extended-term sentences for the three felony convictions,
Gututala was sentenced to thirty-days imprisonment for DNL. ‘The
sentences were to run concurrently.
‘The ICA affirmed Gututala’s conviction and sentence.
Gututala maintains, inter alia,’ that the ICA gravely erred in
concluding that the imposition of an extended term of
P00, UUF, and UCPV are each class C felonies carrying @ ma
of imprisonment of five years. HRS § 706-660 (1903). For’ tmL,,Gatutele faced
f maximn sentence of thirty-days imprisonment. HRS § 706-663" (1993).
> Gututela raised two other claims in his Application for Writ of
certiorari: (i) that the circuit court relied on inadequate evidence (a
presentence report) to prove that he was a “persistent offender,” and (2) that
the cireult court wrongly refused to entertain Ms motion to reconsider his
sentence. Secause we vacate the Ica’s judgment upholding Gututala’s sentence,
and remand for resentencing, we need not address these arguments.
2
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER,
imprisonment based on non-jury findings of fact did not violate
his rights under the fifth, sixth, and fourteenth amendments to
the United States Constitution, as explicated in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and its progeny. As this court made
clear in State v. Maugacteaa, 115 Hawai'i 432, 168 P.3d S62
(2007), Gututala’s extended-term sentences were indeed
inconsistent with his right to a jury trial under the sixth
amendment to the United States Constitution.
Therefore,
The ICA's August 3, 2007 judgment is vacated, and the
case is remanded to the circuit court (1) to vacate Gututala’s
‘extended term sentences and (2) for resentencing in accordance
with this order and applicable law. See Act 1 (Oct. 31, 2007)
(to be codified at HRS $$ 706-661 to ~664);‘ State v. Jess,
No. 26483, Slip Op. (Haw. March 31, 2008) (determining that
resentencing under Act 1 is not unconstitutional and also
permitting a circuit court to resentence 4 criminal defendant
+ act 1 was passed in a special
Maussctegs. See HB. 2, 24th Leg. Second Spec. Sess. (2007), guailable at
http: //eapitol -nawaii.gov/splsession200%b/bills/#B2_.htm (enact
Gstooer 21, 20071, Section 5 ef the Act provides that "[a) defendant whos
Ghtended tern of imprisonment Ss set aside or invalidated shall be resentenced
pursuant to this Act upon request of the prosecutor.” See id,
3
{#** NOT FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *
under a judicially reformed version of the prior statute
governing extended term sentencing) .*
DATE!
Honolulu, Hawai'i, April 11, 2008.
Phyllis J. Hironaka, .
Deputy Public Defender, G
for petitioner/defendant~
appellant on the application
Picsete Or cases UP
Bena. Baty ore
* Although Gututala, at this juncture, has not alleged any defect in
his indictment, we note that the new rule announced in aga, requiring the
allegation of aggravating extrinsic facts n'a charging instrument, does not
apply to Gututala because of its prospective character:
‘
| cbc229a28c9ec2c71baeacdc4784cc5cac9197dcc0213e486253885e6328e54a | 2008-04-11T00:00:00Z |
2e13a255-a50e-45ff-ae23-0c18b0e33e27 | Leon-Guerrero v. Administrative Director of the Courts, State of Hawaii | null | null | hawaii | Hawaii Supreme Court | LAW UBRARY
"++ NOT_FOR PUBLICATION IN WEST’
HAWAII REPORTS AND PACIFIC REPORTER *
No. 26853
wae
¥
IN THE SUPREME COURT OF THE STATE oF HaWar'r |8|
f a
ce 5
SASHA A, LEON-GUERRERO, Petitioner-Appellant, Z2}m fm
Bs = 9
ve. Ee
ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAML, = &
Respondent-Appellee.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
(3R04-0020; ORIGINAL CASE NO, 04-01397)
(By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ.
and’ Acoba, J., dissenting)
Petitioner-Appellant Sasha A. Leon-Guerrero (“Leon-
Guerrero”) appeals from the September 13, 2004 judgment of the
district court of the first circuit! affirming the August 2, 2004
administrative revocation of her driver’s license by Respondent-
Appellee Adninistrative Director of the Courts, State of Hawai'i
(“the Director”), acting through a hearing officer of the
Adninistrative Driver’s License Revocation Office (ADLRO).
On appeal, Leon-Guerrezo argues tha!
(1) the district
court erred in affirming the hearing officer's decision to deny
(a) the general public full and open access and (b) Leon-Guerrero
her own hearing on the validity of the security procedure at the
RDLAO; (2) the district court erred in ruling that Leon-Guerrero
had not been denied her due process rights when the hearing
officer (a) conducted the hearing in a de novo fashion and
declined to follow respondents’ proposed procedure in
+ the onorable Willian A. Cardwell presided.
NOT _FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
contradiction to Hawai'i Revised Statutes ("HRS") § 2916-38(a),
which provides that the revocation hearing will “review the
[administration decision],” (b) did not make known a uniform
conmon procedure in advance of the hearing, (c) admitted the
entize ADLRO file and police report into evidence, and (d)
disregarded the procedure set forth in HRS chapter 2926, Part
IIT, which requires a valid chemical test result over 0.08 or a
refusal to take a chemical test as a jurisdictional prerequisite
for a valid administrative license hearing; (3) the district
court erred in upholding the revocation even though the
“sanctions for Use of Intoxicants While Operating a Vehicle &
Implied Consent for Testing HPD-396B” form (“Implied Consent
Form”) (a) failed to inform Leon-Guerrero that she had a right to
withdraw her implied consent to a blood or breath test, (b)
implied that the only issue in an administrative revocation is
whether the result of her blood alcohol content (“BAC”) test is
0.08 or is refused, and (c) failed to inform Leon-Guerrero that
the word “vehicle” in HRS § 2918-1 (Supp. 2004) includes “vessel”
and moped”; (4) the district court erred in holding that the
wNotice of Administrative Revocation” does not violate HRS §
2918-34(a) (2) (Supp. 2004),? inasmuch as it does not adequately
+ RS § 2918-3418) provides:
(a) The notice of adpinistrative revocation shall provide,
at a minimin and in Clear language, the following general
information
(2) thes
(2)
evocation ands suspension of revocation imposed under section
ese Gis; end
(3) That criminal charg
ing to administrative revocation:
tutory authority for administrative revocation;
filed pursuant to section 2916-61
(continued.
‘0 NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
explain the distinction between administrative revocation and
criminal suspension; (5) the district court erred in upholding
the hearing officer's admission of the statement of the
Intoxilyzer Supervisor because the statement does not explicitly
state that the intoxilyzer was properly maintained in accordance
with HRS $ 2916-36a(2) (C) (Supp. 2004); (6) the hearing officer
erred in citing to unpublished district court decisions; (7) the
district court erred in affirming the hearing officer’s decision
to sustain the license revocation although the Intoxilyzer
Supervisor, Donald W. Stafford (“Intoxilyzer Supervisor), who
was subpoenaed, failed to appear for three hearings; (8) the
district court erred in upholding the revocation although her
involvement in the accident affected her performance in the
Standard Field Sobriety Tests (“sobriety tests”).
Upon carefully reviewing the record and the briefs
continues)
‘OF 2018-61.5 may be prosecuted concurrently with the
Saninisceative action.
(emphases added.)
> RS § 2918-36 (a) (2) (C) states:
{a)_ Whenever a respondent has been arrested for a violation of
section 2918-61 or 2916-61.5 and submits toa test that
establishes: the respondent’s elcohol concentration was .08 or
more... + the following shall be forwarded imediately to the
Sirector:
‘the sworn statenent of the person responsible for maintenance of
the testing equipment, stating facts that establish that, pursuant
fo section 321-161 and rules adopted thereunder
{C) ‘The testing equipment used had been properly maintained and
vas in good working condition When the test as conducted.
3
-«+ NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we hold that:
(1) This court has previously addressed Leon-
Guerrero’s arguments (1) through (6) and found them to be without
merit:
(2) under the circumstances of the present matter, the
hearing officer did not commit an abuse of discretion by
continuing the hearing due to the Intoxilyzer Supervisor's three
nonappearances, pursuant to HRS § 2916~38(k):* and
+ Ag to argument No. 1a in the instant appeal: See Ereitan v.
bs arte ("Ereitas I"], 108 Hawaii Sl, 37-40, 116 P34 673,
679-66? (2005); see alse Minnich-v. Rdsin, Dix. of the Courts ("winnich”}, 109
Hawai's 220, 227,124 P-34 968, 972 (2008)7
Courts, 108 Hawai: 78, 83, 117 P.34 103, 114 (2005).
‘he to argument No. Yb in the inseant appeal: See Munich, 109 Hawai"s
at 227, 124 Psd at 972; Dunaway, 108 Hawai at 83, 117 Pasa at 11e
‘he to azgument Nos. 2(a) and (b) in the instant appeal! sag
108 Hawai'i at 4énts, 116 P.3d at 686-87; Minnich, 109 Hawai's at 226, 12¢ F.3d
at 9717 Dunaway, 108 awai'i at 63, 117 P.3a at 114.
‘As to-arginent 24 in the instant appeal: See Freitas 11, 108 Hawai'i at
45-46, 116 P.3d at 687-88; gee also Minnich, 109 Hawaii at 226, 124 P.3a at
971) Dunaway, 108 Hawai" ae 05-64, 127 Po3d at 114-15.
Rs to argument No. 26 in the instant appeal: see Exeitas IL, 108
Hawai'i at 46, 116 F.3d at 688; age algo Minnich, 109 Hawai's at 226, 124 P.3d
at 372; Dunaway, 208 Havas at @¢y il) Poa at 115,
‘hs to argument No, Ja in the instant appeal: See Dunaway, 108 Hawai's
at e¢-05, 117 P-3d at 115-16; see alse Minnich, 109 Hawai't at 226, 124 2.34
eon.
‘hs to argument No. 3b in the instant appeal: see. 108 Hawas's
at 85-86, 117 P.3d at 116-17; see algo Minnich, 102 Hawaii at 226, 124.36
ae 972.
“is to argument No. 3c in the instant appeal: See Dunaway, 108 Hawai'i
at 06-87, 117 P.34 at 1i7=18.
‘As’ to argument No, 4 inthe instant appeal: See id, at 67, 117 F.3d at
As to argument Wo. $ in the instant appeal: See Park v. Tanaka, 75 Haw.
271, 276, 889 8-26 917, 920 (1993).
Ae‘ to argument NO. 6 in the instant appeal: gee Exeitas Li, 100 Hawas't
at 46, 47, 116 Psa at 688, 685; see also Mannich, 108 sawari at 225, 124
Pad ot $137 Dunaway, 108 Kawaii at @¢, 1]? Peod at 115.
ue.
+ Rs § 2918-38(k) provides that “(t]he absence from the hearing of
a Law anforcenent officer or Other person [who has been properly served with &
Subpoena]... « constitutes good cause for a continuance.” The Director
Hing officer did not exr by
explains that Gnder HRS § 2916-38(k), ‘the Hi
(continued...)
+“ NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
(3) the district court properly ruled that the
administration of the sobriety tests after the accident goes to
the weight of the evidence and does not bar the evidence because
the officers opined that the accident affected her test
performance but Leon-Guerrero did not present evidence in support
of her theory that drivers who participate in sobriety tests
after being involved in a major accident “will most certainly
fail.” Moreover, other competent evidence, including Leon-
Guerrero’s spontaneous utterances, red, watery, and glassy eyes,
strong odor of an alcoholic beverage on her breath, and
involvement in the motor vehicle accident, supports the hearing
officer's preponderance finding.* Therefore
*(...continued)
continuing the hearing because of the non
Supervisor.
rance of the Intoxtlyzer
‘this 1s further supported by the legislative history of Act 113:
the absence of police officer witnesses may be due to any number
of legitimate reasons which may not be known Co the ADLEO hearing
Séficer at time of nearing. Currently, the absence of
Subpoenaed and served police officer at the ADLAO hearing would
Gause a reversal upon judicial review, merely on the-basis of the
Gtficer’s unexplained non-appesrance at time of hearing. There
i
wood be hat snot
innot dismissed or reversed due to che excusable ton-apvearance
gitailure of an officer to-notity the office prior te hearing
‘Heike, the aooc cause for the continuance to be ordered initially
heating office = estace
the hearing officer is sancated oy statute to control and conduct
the hearing, =
a instion oF tia th
hearing officers hands,
en. Stand. Conn. Rep, No. 2274, in 2002 Senate Journal, at 1147. (Emphases
adged.)
* soe State v. Tovemura, 60 Nawat"t 8, 27, 904 P.2d 893, 912 (1995)
(*trror is not te be Viewed in ieoletion ang considered purely in the
Abstract, It mist be examined in the light of the entire proceedings and
Given the ezfect which the whole record shows it tobe entitled. In that
Sontext, the real question becomes whether there is a reasonable possibility
thet erfor night have contributed to conviction. ‘Where there 1s'a wealth of
(continued.
*** NOT FOR PUBLICATION IN WEST'S HAWAIIREPORTS AND PACIFIC REPORTER *¢*
IT IS HEREBY ORDERED that the district court's
Septenber 13, 2004 judgnent is affirmed in all respects.
DATED: Honolulu, Hawai'i, March 27, 2008,
Sasha A. Leon~Guerrero ae
ciraré 0. tau, :
seats Reecenay General, cute esti a
for Respondent-Appellee, *
Aguinistencive oleecter
aerthe cousese Kae oem.
State of Hawai'i
*(.. continued)
overwhelming and compelling evidence tending to show the defendant guilty
beyond a reasonable doubt, errors in the admission or exclusion ef evidence
are deened harmless." (Citations omitted.)).
6
| e692fcb414d8d0b222f74cea4113e0399b70c50a6137072d69288cc3005b37b2 | 2008-03-27T00:00:00Z |
1de458af-ce24-4299-9d77-099979ac1e2d | Karagianes v. Circuit Court of the Second Circuit | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
no. 29097
IN THE SUPREME COURT OF THE STATE OF HAWAI'L
Ss
=
GARY KARAGIANES, Petitioner,
Wt
CIRCUIT COURT OF THE SECOND CIRCUIT, Responderit;
id
a
ORIGINAL PROCEEDING .
(CR. NO. 92-0340)
80:2]
(ay: Noon, C.J., Levinson, Nakayama, Accba, and Ouffy, JJ.)
Upon consideration of the letter dated March 31, 2008
by Gary Karagianes, which is deemed a petition for a weit of
mandanus, Lt appears that petitioner seeks a writ directing the
second circuit court to “resentence” petitioner in Ce. No.
62-0340 by entering a “nex sentence and Jjudgnent to reflect «
reversal of Count 2.” However, the reversal of petitioner's
conviction and sentence on Count 2 was effected in the supreme
2003 Judgment on Appeal. The Judgment on Appeal
92-0340 on
court's May 5,
was filed in the second circuit court in Cr. No.
May 13, 2003 and constitutes the “new judgment” reversing the
conviction and sentence on Count 2. Therefore,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall file the petition for a writ of mandamus as an
original proceeding without payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
mandamus is denied. The denial is without prejudice to seeking
relief from the Department of Public Safety and the Hawaii
Paroling Authority by directing their attention to the
May S, 2003 Judgment on Appeal filed in Cr. No. 92-0340 on
May 13, 2003.
DATED: Honolulu, Hawai'i, april 11, 2008.
| aba1957ad613e52ed6c552a31bedc1ae727638f081c3db25ead49e52dd22e7c0 | 2008-04-11T00:00:00Z |
602aca10-3c34-4a68-958f-e7fa52b410d2 | Rapozo v. Circuit Court of the First Circuit, State of Hawaii | null | 29047 | hawaii | Hawaii Supreme Court | No. 29047
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
RICHARD 8. RAPOZO, Petitioner,
a 8
vs. ak =
CIRCUIT COURT OF THE FIRST crRCUIT, 33|Z
STATE OF HAWAT'T, Respondent. Sele ©
ORIGINAL PROCEEDING >
(SPP NO. 08-1-0003)
2st
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of petitioner Richard Rapozo’ s
petition for a writ of mandamus, it appears that petitioner fails
to demonstrate that the circuit court is required to provide
petitioner with the legal resources he seeks.
petitioner is not entitied to mandamus relief.
Gaddis, $1 Hawai'i 200,
‘Therefore,
See Kema v.
204, 982 P.2d 334, 338 (1999) (A writ of
mandamus is an extraordinary remedy that will not issue unless
the petitioner demonstrates 2
# clear and indisputable right to
relief and a lack of alternative means to redress adequately the
alleged wrong or obtain the requested action.). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied. The denial is without prejudice to
petitioner seeking relief from the Department of Public Safety.
DATED: Honolulu, Hawai'i, March 24, 2008.
Gre
SRE rnse
Duta d runny ane
oo
7a AN
Dablys +
qa
| fe9affd7783044251c3d9a9f5ddc73c3c112a4d938ad655c085b7f099e43fd68 | 2008-03-24T00:00:00Z |
8571cf36-a689-4400-9633-1cd683722d57 | E & J Lounge Operating Company, Inc. v. Liquor Commission of the City and County of Honolulu | null | null | hawaii | Hawaii Supreme Court | No. 27940
IN THE SUPREME COURT OF THE STATE OF HANAI'I
E & J LOUNGE OPERATING COMPANY, INC.,
2 Hawai" corporation,
Pet it ioner/Appellant-Appellee/Cross-Appellee
LIQUOR COMMISSION OF THE CITY
‘AND COUNTY OF HONOLULU, -
Respondent /Appellee~Appel lant /Cross~Appellé
1e%6 Li dav anne
and
5
Hi. GAMES STAHL; TYSON J. THOMAS; RANDI THOMAS;
EMILY REED: and BILL MAXWELL, Respondents/Intervenors-
‘Rppellees/Intervenors-Cross-Appellante
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO, 05-1-1464)
ORDER PLICATION FOR Wi
(By: Acoba, J., for the court)
Petitioner/Appellant-Appellee/Cross-Appellee E & J
Lounge Operating Company, Inc.'s application for writ of
certiorari, filed on March 7, 2008, is accepted and will be
scheduled for oral argument. The parties will be notified by the
appellate clerk regarding scheduling.
DATED: Honolulu, Hawai'i, April 17, 2008.
FOR THE COURT:
SIMEON R. ACOBA, JR.
Associate Justice
David W.H. Chee (Brooks
Tom Porter & Quitiquit)
for petitioner/appellant-
appellee/cross-appel lant,
on the application.
betty, 99.
Considered by Moon, C.J., Levinson, Nakayama, Acoba, and
| 642178aeaf49ee0cf15956be2709ad8e508036b40804cff36cc39ab1f9123305 | 2008-04-17T00:00:00Z |
4c161988-eded-42a7-91bc-1b002cf8c082 | In re George M. Masuoka | null | null | hawaii | Hawaii Supreme Court | No. 29024
IN RE GEORGE M. MASUOKA, Petitioner.
ORIGINAL PROCEEDING
upon consideration of Petitioner George M. Masuoka’s
Petition to Resign and Surrender License, the attached
atfidavite, and the lack of objections by the office of
Disciplinary Counsel, st appears that the petition complies with
the requirenents of Rule 1,10 of the Rules of the Suprene Court
of the State of Hawai'i (RSCH). therefore,
If 18 HEREBY ORDERED that the petition is granted.
IP IS FURTHER ORDERED that Petitioner Yasuoka shall
return his original License to practice law to the Clerk of this
court forthwith, The Clerk shall retain the original License as
pact of this record. Petitioner Nasucka shall comply with the
notice, affidavit, and record requirements of subsections (a),
(B)y (de and (9) of RSCH 2.16.
IP IS FINALLY ORDERED that the Clerk shall remove the
ane of George M. Masuoka, attorney nunber 897, from the roll of
attorneys of the State of Haai't, effective with the filing of
this order
DATED: Honolulu, Hawai'l, March 14, 2008,
| 4a39d77279337f66d88a8241e7201d1cf66a1e442b8fb8724a4c987191e35fd0 | 2008-03-14T00:00:00Z |
00283564-307d-454f-89c2-3725a8c9dc9a | State v. Shannon. Dissenting Opinion by J. Nakayama [pdf]. ICA Opinion, filed 09/28/2007 [pdf], 116 Haw. 38. Dissenting Opinion by J. Nakamura [pdf]. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/22/2008 [pdf], 117 Haw. 234. | 118 Haw. 15 | null | hawaii | Hawaii Supreme Court | ‘LAW LIBRARY.
-FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
=--000~;
STATE OF HAWAI'I, Petitioner/Plaintiff-Appellee
ERIC K. SHANNON, Respondent/Defendant~Appellant
no. 27919
CERTIORARI 70 THE INTERMEDIATE COURT OF APP!
(HPD CRIMINAL NO. 04447936)
May 29, 2008
a3
MOON, C.J.) LEVINSON, ACOBA, AND DUFFY,
‘AND NAKAYAMA, J., DISSENTING
QUOI 62 AVH 002
OPINION OF THE COURT BY ACOBA, J.
Petitioner/Plaintiff-Appellee State of Hawai'i
(Petitioner) seeks review of the October 17, 2007 Judgment of the
Intermediate Court of Appeals (ICA),' entered pursuant to its
+ pursuant to Hawai'i Revised Statutes (HRS) § 602-58 (Supp. 2007),
‘a party may appeal the decision of the ICA. Seg HRS § 602-59(a). In
determining whether to accept or reject the appiication for writ of
Gertiorars, thie court reviews the ICR decision for:
(2) Grave errors of law or of facts or
(2) Obvious inconsistencies in the decision of the (ICA
with that of the supreme court, federal decisions, oF
its own decision,
land the magnitude of auch errors oF inconsistencies
Gictating the need for further eppeal
RS § 602~!
dsscr
(b). The grant or denial of a petition for certiorari is
jonery with this court. gee HRS § €02-59(a)
/+FOR PUBLICATION I WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERY*#
published opinion? filed on September 28, 2007, gee State
Shannon, 116 Hawai'i 38, 69 P.34 990 (App. 2007), vacating the
April 6, 2006 Judgment of the District Court of the First
Circuit, Kaneohe Division (the court)? revoking the Deferre
Acceptance of Guilty Plea (DAGP) granted to Respondent /Defendant~
Appellant Eric K. Shannon (Respondent) and convicting him of
criminal trespass in the second degree, in violation of HRS
§ 706-814 (a) (1) (1993).
We hold that (1) under HRS § 653-1 (1993 & Supp.
2007),* referring to @ DAGP, and incorporating HRS § 706-624
(2993 & Supp. 2007), pertaining to probation, the defendant must
be given a written copy of the conditions imposed pursuant to his
or her DAGP, (2) an “actual notice” rule such as that applied by
federal courts cannot be validly substituted for the written
notice required by our statutes, (3) Respondent was not given 2
written copy of his conditions, and, therefore, under State v
Lee, 10 Haw. App. 192, 862 P.2d 295 (1993), his DAGP could not be
+ The opinion of the ICA was authored by Fi
foley, whe was Joined by Associate Judge Alexa D-H
Ceaig'#, Nakamura f1led a dissenting opinion.
fhe majority opinion and the “ich dissent” reters to" Jud
dissenting opinion.
ding Judge Daniel R.
Associate Jud:
ine TCA
Nakamura’ =
>The Honorable 7. David Woo, Jr. presided.
‘ks § 706-6142) (2) provides in pertinent part that [a] person
commits the offense of criminal trespass in the second degree if. . © (e]he
person knowingly enters or remains onlawfully in or upon prenisss ‘that are
jgned to exclude intruders or are’ fencea{.]"
gee inten note 18
+ fee inten notes 19 & 20.
‘s++FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#*
revoked by the court, (4) further, consistent with the written
conditions requirenent and HRS § 853-3 (1993) as it is construed
with HRS § 706-627(1) (1993), a motion to revoke a DAGP for
failure to comply with its conditions must be in writing,
(5) Petitioner did not file @ written motion to revoke
Respondent’s DAGP, therefore, (a) Respondents’s period of
deferral was not tolled, and (b) the deferral period expired
before the court ruled on the motion to revoke. Accordingly,
Respondent's DAGP could not be revoked and Petitioner's motion to
revoke must be dismissed with prejudice. Ultimately, then, the
JCA did not gravely err in vacating the court’s judgment. see
‘Shannon, 116 Hawai'i at 39, 69 P.3d at 991.
I.
The following matters adduced are from the record and
the submissions of the parties. On February 11, 2005, Petitioner
charged Respondent with criminal trespass in the second degree
‘via amended complaint,” according to Petitioner. Respondent
entered a guilty plea and orally moved for DAGP. The court
granted Respondent’s motion for DAG and deferred Respondent’ s
plea for one year, provided that Respondent “[(1)] remain arrest
and conviction free for that period, [(2)] . . . complete forty
It appears that Lf there were a written complaint, it was not made
fa part of the record on appeal. However, the calendar from the court
fndicstes that on February 11, 2005, Petitioner wes “orally charged.”
(Capitalization altered.)
'FOR PUBLICATION IN WEST’ S HAMAI'I REPORTS AND PACIFIC REPORTER*#*
hours of community service, and [(3)] . . . pay a ‘CICF’{"] fee
of twenty-five dollars.” Respondent’s Proof of Compliance
hearing was set for January 27, 2006.
At the January 27, 2006 proof of compliance hearing,
Petitioner orally moved to have Respondent’s DAGP revoked, and
the court continued the hearing to March 26, 2006. On March 24,
2006, the court again continued the hearing, until April 6, 2006.
At the April 6, 2006 hearing, Respondent made several
notions related to the DAGP. First, Respondent moved to have his
forty hours of community service converted to a fine.? The court
denied the motion. Next, Respondent requested another
continuance “so that he could obtain a transcript of [his)
change-of-plea hearing” because defense counsel believed there
might be grounds to vacate his plea. ‘The court denied that
motion without prejudice, noting that “it[ has] taken over a year
for that motion to [be] file(d,)” and its “general practice” of
allowing the withdrawal of DAGPs only “relucant (1y).””
Having disposed of Respondent’s motions, the court
considered Petitioner's motion to revoke Respondent's DAGP.
Petitioner introduced a probation report indicating that
‘CICE” is not defined by the parties or by the record.
* Respondent attended a “screening/placenent interview” related to
his comunity service requirement, but failed to report to his assigned
location, AB of Decenber 3, 2005, the Adult/dJuveniie Community Service and
Restitution Unit reported 20 the Court that Respondent's conmunity service
Obligation renaines outstanding.
‘s++f0R FUELICATIGN IN WEST’ § HAWAI'I REPORTS AND FACIFIC REPORTER*
Respondent had been arrested on August 12, 2005. Respondent
objected to the introduction of the probation report on the
grounds that it was inadmissible hearsay and because it violated
Respondent's right to “confront{} . . . whatever evidence is
going to be adduced against him... .” Ultimately, the court
took judicial notice that Respondent had been arrested subsequent
to entering his DAGP.
he to revocation of the ORGP, Respondent
argued that (the court] lacked jurisdiction to set aside the
DAG(P] because the deferral period had already expired. In
other words, the prosecuter’s oral notion to set aside the’
Because (fet tionerl did-net file's notion a2 re:
sSreuant to [HRS Eze [eic, eresueably BRS $ 70e~
(Emphasis added.) Alternatively, relying on Lea, Respondent
argued that his DAGP could not be revoked for failure to comply
with conditions because Petitioner had not “show(n) proof that
[Respondent] had received written notification” of those
According to Petitioner, Respondent faced “two charges of
Tenporary Restraining Order{ and} a charge of Theft in the Fourth Degree.”
= HRS § 706-627(1) provides that
dylnon the {iling of emotion to revoke a probation...
the period of probation shell be tolled ponding the hearing
upon’ the motion and the decision of the court.” The period
Fa fh and Incioding the filing dateof thew
‘decision of the colrt concerning the notion for purposes of
Computation of the Feusining period of probation, if any.
he even x
SOUL, During the period of tolling of the probation, the
Sefendant shall rensin subject to sil terme ana consitions
Of the probation except a8 otherwise provided by this
chapter’
1s added.)
FOR PUBLICATION I WEST’§ HAWAL'T REPORTS AND PACIFIC REPORTER¢#*
conditions. Finally, Respondent argued that the condition that
he renain “arrest and conviction free” during the deferral period
was improper because “(t]here is no condition . . . under [HRS §]
706-624 that permits any type of prohibition to be arrest free.”
Ultimately, the court revoked Respondent’ s DAGP,
Lb]ased on the report from the probation office, based on
the (clourt’s judicial notice that certain charges have been
Filed against (Respondent], +. . and the [eloure's finding
that of the [forty] hours Of comunity service that
(Respondent) was orde:
Thus, the court accepted Respondent's guilty plea, adjudged him
guilty and imposed fines totaling $225.
m
on appeal to the ICA, Respondent alleged that “(the
court] committed reversible error” (1) in finding “that the
period of deferral had been tolled by [Petitioner's] oral motion
on January 27, 2006, to set aside (Respondent's) DAGIP]," (2) in
“reviewing @ hearsay probation report without making a finding
that the probation officer was unavailable to testify in
violation of the due process and the confrontation clausest,]”
(3) in “set[ting] aside the DRG(P] without any evidence that
[Respondent] had signed in writing the conditions of the
deferral{,]” (4) because the court “lacked statutory authority to
impose a DAG(P] condition that (Respondent) remain arrest
free[,]” (5) in “refus{ing] to convert (Respondent’s] community
service to a fine(,]” and (6) in “den(ying Respondent's] motion
to continue the matter to permit him to obtain a transcript of
se+FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER!
the change-of-plea hearing in order to determine whether grounds
exist, in addition to a native tenant rights defense, to vacate”
the DAGP.
nr
‘The ICA found Respondent’s third issue on appeal to be
dispositive and held that the court “erred in setting aside
[Respondent's] DAG[P] because (Respondent] did not receive
written copy of the conditions of his DAG(®]." Shannon, 116
Hawas's at 39, 169 P.3d at 991 (boldfaced font omitted). The ICA
stated that HRS § €53-1(b) (Supp. 2007)* “incorporates and
permits courts accepting DAG{Ps) to impose any conditions
enumerated in HRS § 706-624." Id. at 40, 169 P.3d at 992 (citing
State v. Kaufman, 92 Hawai'i 322, 329, 991 P.2d 832, 839 (2000);
tate v. Dannenberg, 74 Haw. 75, 82, 837 P.2d 776, 779 (1992).
The ICA rejected Petitioner’s argunent that
Respondent's “receipt of actual, oral notice [of the conditions
of his DAGP] at the February 11, 2005 hearing was sufficient.”
Id. The ICA reasoned that Petitioner’s position was incorrect
under Leg. It explained that the legislative intent underlying
HRS § 706-624 precluded reliance on actual notice in lieu of
written notice of conditions. It declared tht
[t]he intent of HRS § 706-624 is to provide the defendant
with notice of what is expected of him ins form which will
not escape Ais memory.
RS § €53-1(b) provides in pertinent part that “[t]he proceedings
ay be deferred upon any of the conditions specified by section 706-624."
{S*4FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER:
The requirement of HRS § 706-626(3) that a defendant
be proviged with a written statement of the conditions ef
his probation also provises assursnce that a defendant will
know the exact terms and conditions of his probation before
is probation can be revoked for failure to comply with the
ferns and conditions.
Ida (quoting Lag, 10 Haw. App. at 198, 862 P.2d at 298) (ellipsis
points in original). Although the ICA acknowledged that the
court's calendar indicated that on February 11, 2005, the court
orally advised Respondent of the conditions of his DAGP, it was
observed that “there is no evidence in the record that
[Respondent] received a written copy of his conditions.
{Respondent} contends that he did not receive a written copy, and
[Petitioner] does not contend otherwise." Id. Accordingly, the
ICA vacated the court’s April 6, 2006 decision to revoke
Respondent's DAGP and “remanded for further proceedings
consistent with this opinion.” Id.
Ww.
In its application for certiorari, Petitioner presents
2 single question, “whether the ICA gravely erred in vacating the
trial court’s decision to set aside [Respondent's] DAGI®),
notwithstanding his actual notice of the terms and conditions
thereof.”
v.
‘The revocation of @ DAGP is reviewed for an abuse of
Giscretion. See Kaufman, 92 Hawai'i at 326-27, 991 P.2d at 836
37 (stating that, like “[t]he grant or denial of a DAG(P),” the
“setting aside, or revoking a DAG(P] is properly within the
/++F0R PUBLICATION IN WEST’ HAMAI'T REPORTS AND PACIFIC REPORTER!
discretion of the trial court. Generally, to constitute an
abuse, it must appear that the court cli
ely exceeded the bounds
of reason or disregarded rules or principles of law or practice
to the substantial detriment of the party litigant.) Similarly,
sentencing decisions are also reviewed under the abuse of
discretion standard. See State v. Davia, 87 Hawai'i 249, 253,
953 P.2d 1347, 1361-52 (1998) (“the authority of @ trial court to
select and determine the severity of a penalty is normally
undisturbed on review in the absence of an apparent abuse of
discretion or unless applicable statutory or constitutional
conmands have not been observed.”)
vr.
Petitioner points to the ICA's reliance on the policy
concerns expressed in Lee, namely, that written notification of
conditions ensures that probationers are aware of the conditions
with which they must comply. In that connection, Petitioner
argues that “Respondent did not contend that he was unaware of
the terms and conditions of his DAG[2]." Petitioner reiterates
the ICA diseent’s argument that “[iJn United State's isicl vw
Arbizu, 431 F.3d 469 (Sth Cir. 2005), the United States Court of
Appeals for the Fifth Circuit noted that every other circuit
court to address this issue had held that the government's
failure to provide the notice required by the [18 U.S.C.
§§ 3583 (£) and 3603(1)] does not Limit the (trial) court's
authority to revoke supervised release where the defendant had
}FOR FUBLICATION I WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER**#
actual notice of the release terms.” (Citing Shannon, 116
Hawas's at 41-42, 169 P.3d at 993-94 (Nakamura, J., dissenting) .)
(Internal quotation marks omitted.) (Third brackets in
original.)
Petitioner further argues that the court’s calendar
“reflects that Respondent was apprised of the terms of his
deferral” and that Respondent's knowledge of those terms was
proven by the facts that (1) Respondent paid the CICF fine on
March 14, 2005, and (2) Respondent twice requested to have his
community service requirement converted to a fine. Based on
that, Petitioner argues that “Respondent . . . was avare of the
terms and conditions of his deferral, and just as evidently
cognizant that he had failed to fulfill them.”
vin.
The legislature adopted HRS chapter 853, entitled
“criminal Procedure: Deferred Acceptance of Guilty Plea, Nolo
Contendere Plea,” because it determined that certain offenders
petitioner notes that other federal cases espoused similar rules.
(citing United States vy, Ortega-Brita, 311 F.ad 1136, 1138 (9th Cir~ 2002)
(agreeing with the First_and eighth Circuits that “a failure to provide
written notice of . . . conditions (of supervised release] will not
automatically invalidate the revocation of [defendent’s] release based upon
violation of such conditions"): United states v, Felix, 994 F.2d 550, S51 (eth
Giz, "1992) {holding that "the failure to order OF to provide a weiteen
statement” of consitions of supervised release be furnished to the defendant
doesnot “automatically result{] in the insbility of a sentencing court te
revoke supervised relesse based ona violation of one of the conditions”
(citations omitted); of, United Skates x. TapiacMarauea, 361 F.3d 535, 538
(Sth cir. 2000) (explaining that the rule in OreeasrBrite "would have
Conpelled affirmance of the judgment [revoking defendant’s supervised release)
{f'[hia} release from custody had not rendered his appeal mos"). Although
Petitioner acknowledges that this court is free to give greater constitutional
protection under the Havai's Conatieution than what 12 afforded under the
Federal constitution, it argues that in this case, “logic and sound regard for
such protection is not warranted. = ss
n10-
seefoR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER!
should be provided the opportunity to be conviction free
consistent with the government's penal goals. The legislature
explained that
“in certain criminal cases, particularly those involving
ficet time, accidental, or situational offenders, it is in
the best interest of the [prosecution] and the defendant
that the defendant be given the opportunity to Keep bis (or
her] record free of s criminal conviction, if he (or shel
Con comply with certain tems and conditions during a period
designated by court order.
State v, Putnam, 93 Hawai'i 362, 367-68, 3 P.3d 1239, 1244-45
(2000) (quoting 1976 Haw. Sess. L. Act 154, § 2 at 279) (emphasis
omitted) (brackets in original). Thus, in appropriate cases, the
court may suspend the proceedings for a set period of tine
provided that the defendant complies with certain conditions
imposed by the court. See HRS § 853-1(c) (1993) (“Upon the
defendant’s completion of the period designated by the court and
in compliance with the terms and conditions established, the
court shall discharge the defendant and dismiss the charge
against the defendant.”) Such conditions are imported from HRS
§ 106-624 relating to conditions of probation. In that regard,
the DAGP statute provides, in pertinent part, that
nay be det sadivions
‘iscified by section 706-62...” The court may defer the
Proceedings for tuch period of time as the court shall
Sizect but in no case to exceed the maximum
‘Silowabie; provided that, if the defendant has entered 9
ples of guilty or nolo contendere to a petty misdenesncr,
Mich case the court may defer the proceedings for a period
not to exceed one year...
HRS § 853-1(b) (emphasis added). HRS § 853-1(c)-(e) (1993)
further state that once the period of “probation” has terminated,
Af the defendant has complied with the terms and conditions, the
=n
‘+**FOR PUBLICATION IN WEST’S HAWAI'T REPORTS AND FACIFIC REPORTER!*#
charges shall be dismissed without an adjudication of guilt or
conviction and the defendant may thereafter apply to have his o
Kealaski, 95 Hawai'i 309,
her record expunged. See also State
312, 22 P.3d $88, $91 (2001) (noting that “there is no conviction
when the acceptance of . . . a plea is deferred” (internal
quotation marks and other citation omitted))); Putnam, 93 Hawas's
at 368, 3 P.3d at 1245 (noting that “[tJhe effect of 2 (ORGP) was
. « « to enable a defendant to retain a record free of @ criminal
conviction by deferring a guilty plea for a designated period and
imposing special conditions which the defendant was to
successfully complete” (citation and internal quotation marks
omitted).
To the extent that a defendant who has entered a OAGP
remains at liberty, subject to certain conditions on his or her
behavior, the deferral period is similar to probation. the
commentary on HRS § 706-624(3), relating to written conditions of
probation, explains that “[p]robation attempts to correct the
defendant without interrupting the defendant’ s contact with open
society.” As with probation, DAGPs are afforded to those
defendants who meet certain criteria. See HRS § 853-1 (providing
that a defendant may be granted a DAGP when (1) the “defendant
voluntarily pleads guilty or nolo contendere,” (2) the court
believes it is unlikely that the defendant will
ngage in a
criminal course of conduct” in the future, and (3) the interests
of “Justice and the welfare of society do not require that the
12+
s++7OR PUBLICATION IN WEST! HAMAI'T REPORTS AND PACIFIC REPORTERS!
defendant shall presently suffer the penalty imposed by law").
‘The circunstances mitigating in favor of a OAGP are similar to
the considerations evaluated by @ court when determining whether
probation is appropriate. See HRS § 706-621 (Listing ten
specific factors to be weighed by the court in deciding whether
probation should be granted).
conversely, if the defendant does not successfully
complete his or her deferral period in compliance with the terms
and conditions imposed by the court, “the court may enter an
adjudication of guilt and proceed as otherwise provided.” HRS
§ 853-3; see also Kaufman, 92 Hawai'i at 330, 991 P.2d at 640
(holding that “the circuit court did not abuse its discretion in
setting aside [defendant's] DAG[P], accepting his guilty plea,
and convicting and sentencing him accordingly” where the
defendant was convicted of other crimes during his deferral
period in violation of the conditions of his DAGP). Similarly, a
court is required to “revoke probation if the defendant has
inexcusably failed to comply with a substantial requirement
imposed as @ condition . . . or has been convicted of a felony.”
HRS § 706-625(3) (Supp. 2007).
“Accordingly, the DAGP statutory scheme does not list. independent
conditions with which the defendant must comply. HRS § 853-4 (1993 4 Supp.
S007), entitled “Chapter not spplicable; when(,j" lists circunstances related
fo the nature of the offense, the attributes or history of the defendant, and
the nature of the victia, none of which fe applicable to the instant case
Such considerations are akin to factors relating to consideration for
probation Listed in HRS § 706-621 (1993)
“136
FOR PUBLICATION IM MEST’§ HAKAI'T REPORTS AND FACIFIC REFORTER*
vint.
This court hae previously acknowledged the substantial
similarity between the DAGP and probation statutes. See Kaufman,
92 Hawai'i at 328, 991 P.2d at 638 (holding that “it is clear
that the DAGIP) deferral period is closely analogous to a
‘probationary period’” (emphasis added)). In Kaufman, the
sentencing court set aside the defendant’s DAGP, accepted his
guilty plea, and sentenced him accordingly. Id. at 325-26, 991
P.2d at 838-36. Kaufman appealed, arguing, inter alia, that the
court “lacked jurisdiction to set aside [his] DAG[P) after the
deferral period had expired{.]" Id. at 323, 991 P.2d at 833.
‘The ICA affirmed, and this court accepted certiorari in order to
“clarify that @ motion to set aside a DAG[P] tolls the period of
deferral pending the decision of the court on the motion.” Id.
In reaching that conclusion, this court conceded that
“[t}he legislature has not enacted @ tolling provision
specifically applicable to DAG[P] deferral periods.” Id, at 328,
991 P.2d at 838. Nevertheless, based on the express language of
the statute and the legislative intent, this court concluded that
the deferral period of a DAGP is “closely analogous” to a period
of probation. Id, This court related that the statute
“ideferred [proceedings] upon any of the conditions specified in
section 706-624,’ entitled ‘Conditions of Probation./” id.
(quoting HRS § 853-1 (1976 & Supp. 1984)). This court also
considered the legislative history of HRS chapter 853, which
“ue
s+POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*#*
eee
referred to the deferral period as a “probationary period.” 1d.
{announcing that “{t]his sentencing alternative [ (referring to
deferred pleas)) is employed in those cases where the interests
of both the public and the defendant are best subserved by
discharging the defendant without @ judgment of conviction, after
the defendant has successfully completed a probationary period”
(quoting Sen. Stand. Comm. Rep. No. 616-76, in 1976 Senate
Journel, at 1182) (brackets and emphasis in original).
Based on the foregoing, it was decided that the
deferral period of @ DAGP and a probationary period were “closely
analogous.” Id, Because of the close relationship between the
two statutes, it was deemed appropriate to apply the tolling
provision contained in the probation statute to Kaufman's DAGP.
See ids at 329, 991 P.2d at 639 (“Although HRS § 706-627 does not
specifically address deferral periods under a DAG{P), the public
policy concerns and legislative intent underlying the tolling of
probation are equally applicable to the tolling of a deferral
period pursuant to (a) DAGIP].")
1.
Consistent with the foregoing and as earlier noted, HRS
§ 853-1(b) provides in relevant part that [t]he proceedings may
be deferred upon any of the conditions specified by section
706-624." Relatedly, this court has observed that “by its
express terms, the provisions of HRS $ 706-624 are exported and
incorporated by reference into HRS § 853-1." Kaufman, 92 Hawai'i
n15-
}FOR FUBLICATION IN WEST'S HAWAI'T REPORTS AND FACIFIC REFORTER*+#
at 328, 991 P.2d at 839 (emphasis added). In turn, HRS § 706-624
Lists conditions that can be imposed during a defendant's
probation."* In conjunction with the conditions, HRS § 706-
624(3) (1993), entitled “Written statement of conditions|, 1"
mandates that “{tlh all be given a wi
any cequirenents imposed pursuent to this section, stated with
sufficient specificity to enable the defendant to avide the
ge: -" (Emphases added.)
In addition to guiding behavior, the Conmentary on HRS
§ 706-624 explains that the purpose of notice in writing “is to
provide the defendant with notice of what is expected of the
éefendant ina form which will not escape the defendant's
memory.” (Emphasis added.) The rationale for affording
probationers a written copy of the conditions imposed during
their probationary period is equally applicable to defendants
Pertinent to this case are the following provisions in HRS § 706
eat
(2) Mandatory Conditions.
an explicit condition of # sentence of probstion
ta)
‘ate crime during the tere of probation:
{2i Discretionary conditions.
ae further conditions of # sentence of probation: thet
the defendant
iwi”
few ‘described in section TOE
S05 tiT Te
id)” Baya tine imposed pursuant to section 706-
Sosy ie)
added.)
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Sa
granted DAGPS during the “closely analogous” “deferral period.”
Kaufman, 92 Hawai'i at 32, 991 P.2d at 838. Therefore, in much
the same way, @ defendant who must comply with conditions
pursuant to a DAGP that are derived from the probation statute
logically must be given notice of those same conditions “in a
form which will not escape {his or her] memory.” Commentary on
RS § 706-624. Inasmuch as defendants sentenced to probation and
those granted @ DAGP are similarly expected to comply with
certain conditions to demonstrate that they can be “correct [ed)
|. . without interrupting [theiz] contact with open society(,]"
Adu, it is equally necessary to provide both categories of
defendants with written notice of those conditions.
Furthermore, the incorporation of HRS § 706-624(3) is
compatible with the underlying purposes of HRS chapter 853.
DAGPs are utilized where, under the particular circumstances, “a
record free of a felony conviction, which would foreclose certain
educational, professional, and job opportunities my . . . be
more conducive to offender rehabilitation and crime prevention
State
than the deterrent effects of a conviction and sentence.
vs Naone, 92 Hawai's 269, 306, 990 P.2d 1171, 1188 (App. 1999)
(quoting 1976 Haw. Sess. L. Act 184, § 1 at 279); see also State
Martin, 56 Haw. 292, 293, 536 P.2d 127, 128 (1975) (noting
that the district court counseling service “reconnended that,
on (defendant's) lack of eri cord, or any
academic or disciplinary problems, gainful employment, and good
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character and reputation, the motion for DAG[P] . . . was worthy
of consideration” (emphases added)). The conditions imposed
pursuant to a DAGP, like those for probation, are intended to aid
“the rehabilitation of the defendant.” Commentary on HRS § 706-
624.
Given the importance of abiding by the conditions in
the DAGP scheme, it is manifest that defendants whose DAGPs are
accepted should be explicitly apprised of the conditions of their
pleas in writing. Accordingly, in connection with the conditions
from HRS § 706-624 that are incorporated by reference in HRS
§ 853-1, the “provision” in HRS § 706-624(3) that requires a
defendant who is granted probation to be given a written copy of
the conditions, must necessarily apply to the defendant granted a
DAGP, who must adhere to such similar conditions.
x
Based on the foregoing, the ICA correctly applied Lee.
In Lee, the ICA reversed the circuit court’s decision to revoke
Lee's probation for violation of a condition on the ground that
he was never given a written copy of the conditions of his
probation. 10 Haw. App. at 192, 862 P.2d at 295-96. Looking to
the Commentary on, and legislative history of, HRS § 706-624(3),
as observed before, Lee explained that the “intent [of HRS § 706-
624(3)] is to provide the defendant with notice of what is
expected of him in a form which will not escape his memory.” Id.
at 198, 862 P.2d 298 (quoting Conmentary on HRS § 706-624 (1985)
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eee
(internal quotation marks omitted). The ICA added that this
requirement “also provides assurance that a defendant will know
the exact terms and conditions of his probation before his
probation can be revoked for failure to comply with the terms and
conditions.” Id.
Because HRS § 706-624 is incorporated by reference into
HRS § 853-1, Lee's reasoning is comparable here, The Hawai'i
Legislature recognized that 2 DAGP is a “substantial benefit”
conferred upon a defendant. Dissent at 7 (quoting Sen. Stand.
Comm. Rep. No. 2481, in 2000 Senate Journal, at 1026). However,
this does not undermine the fact that the defendant is still
subject to 2 “probationary” period and, therefore, only confirms
the necessity of written conditions.
xr.
As opposed to Lee, the federal cases relied upon by the
dissent and the ICA dissent adopt an “actual notice” rule. See
dissent at 15 (stating that “federal case law interpreting
similar federal statutes uniformly hold[s] that evidence of
actual notice is sufficient to satisfy the federal statute's
written notice requirement” (capitalization and boldfaced font
omitted))? see also Shannon, 116 Hawai'i at 41, 169 P.3d at 993
(takanura, J., dissenting) (arguing in favor of the rule adopted
in Arbizu, 431 F.3d at 470, that “the government's failure to
provide the notice required by the statutes does not limit the
[trial] court's authority to revoke supervised release where the
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defendant had actual notice of the release terms” (internal
quotation marks omitted) (brackets in original)). The dissent
finds persuasive the reasoning of the federal courts that have
adopted an “actual notice” rule pursuant to 18 U.S.C. $$ 3583(£)
and 3603(1). See dissent at 15-18.
Those courts acknowledge that it would contravene the
purpose of the statute to revoke a defendant's probation for
violation of @ condition of which the defendant was unaware.
However, they posit that it was not Congress’ intent “that a
defendant who does not receive the proper written notice should
be immune from revocation... ." Id. at 16 (quoting Arbizu,
431 F.3¢ at 473) (internal quotation marks and other citation
omitted). The ICA dissent slso found the reasoning of Arbizy
persuasive, arguing that “[a) defendant who knows that his
supervised release terms bar certain conduct should not be
allowed to engage in that conduct and then hide behind the
governnent’s failure to follow statutory notice procedures during
sentencing.” Shannon, 116 Hawai'i 41-42, 169 P.3d at 993-94
(akamura, J., dissenting) (quoting Arbigu, 431 F.3d at 471)
(internal quotation marks omitted) .*
he noted by the dissent, dissent at 15-18, and the TCA dissent,
Shannon, 116 Hawai'i at 41-42, 169 F.3d at 993-94 (Makamura, J., dissenting),
Federal circuits define actual notice, in the context of 16 0:8.c, 88 3889(£)
and 3603(1), as notice “sufficient to’ serve as a guide for tho defendant's
Conduct.” Belixy 394 F.24 at $52 (citation and internal quotation seeks
caitted). In Helix, the Eighth Circuit held that the defendant receives
sufficient actual notice that he violate no lave while on supervised release
for bank fraud charges, when the district judge orally told the defendans chat
sopervised release was “like probation” and that "he hed better not mess Up on
[the judge’ s) probetion,” which the defendant scknowledged and promised to
(wont inved...)
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aL
A straightforward reading of HRS § 706-624(3) prohibits
the adoption of an “actual notice” rule. The version of HRS
§ 706-624(3) applicable when Petitioner’s DAGP was accepted”
M(. continued)
wetay clean.” Jd at $52.
tn Gitege-Beito, 911 F.3d at 1138-39, the Ninth Circuit addressed
a situation wnere the exchange betusen the defendant and Judge was “virtually
identical to that described in Felix.” The Ninth Circuit held that the
Celloguy with the defendant, uhere the judge informed the defendant that the
ferns of his supervised release was “Like parole” and that “if you do
Senething wrong, you go beck to Jail,” was sufficient oral notice to
Sénstiture actual notice of the defendant's conditions of compliance and
Setisty the purposes of 18 U.S.C. $§ 3863(4) and 396032). Ide at 1139,
Aaditionally, the Orteaa-Brite court reasoned that ite “holding [found]
Gdditional support in. (defendant’ e] pl nent, in which (Gefendant}
scknowiedgea that he is in violation ponditions of the release.” 1d.
In United States v. Ramgs-Santiagg, 925 F.2d 15, 16 (1st Cir.
1591), the court ‘concluded that the defencent’s supervised release was
properly revered because it uas “undisputed” that "upon being sentenced” the
Beendant and his counsel “received copies of the sentence, to which were
neds inter alia the conditions of his supervised release,” the
requires" were mets dd at 16-17, The notice was
‘Sufticieatly clesr snd specific... to serve as 2 guide for [defendant]'s
cxpected behavior during the term of supervised release.” Id, 3t 17
‘Resuming afauende that the standard announced in the
aforenentioned fedefal cases applies without consiering the actual language
and commentary of our own statute, the evidence presented in this case 18
Snoufficlent to satisfy the requitenent thet s defendant be given notice
sufficient to "serve ss 2 guide for the defendant’ s conduct.” Felix, 994 F.2d
Gt S52. "The record does not indicate that Respondent was orally apprised of
the seriousness of remaining arrest and conviction free. Although the ICR
‘in digtus that the “[the court] calendar reflects that (the court)
ly apprised (Responsent] of his special conditions(,]” shannon, 116
Nowaiti at 40, 169 Pd at 992, novhere in the calendar is it erated with
Specificity that Respondent wes “apprised” of these tems. The court calendar
Rerely delineates the conditions of Respondent's OXGP snd, at best, shows what
EGnaitione the court intended to Impose on Respondent’s DAGP. or’ does the
Secord incicate Respondent wae told that his DAGP was “Like parole,” oF that,
he "better not mess up,” a2 in Felix and Ortega-Brite. The record’ also does
hot indicate, and the parties do not contest, woether Respondent was given a
Copy of his sentence as in Kapos-Santiaga. Thus, st cannot be said thet,
Eikde"on'the secors, there existe substantial evidence ro support the
Conclusion thet Respondent was given sufficient actual notice even under the
federal cases.
Yan 2006, HRS § 706-624(3) was amended to read:
‘the court shell order the defendant at the tine of
sentencing to sign a written acknowledgenent of receipt of
Scnditione of probation, The defendant shall be given a
Witten copy of any requirenents inposed pursuant to this
(ection, stated with sufficient specificity to enable the
‘cont ine
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provided that “[t]he defendant shall be given a written copy of
any requirements imposed pursuant to this section, stated with
sufficient specificity to enable the defendant to guide the
defendant's self accordingly." (Emphasis added.)
Contrary to the position espoused by the dissent and
the ICA dissent, it is 2 well-established tenet of our statutory
interpretation that the use of the word “shall” generally
indicates the legislature's intention to make a provision
mandatory, as opposed to discretionary. See Gray v. Admin. Dir.
of the Court, 84 Hawai'i 138, 150 n.17, 931 P.2d 580, 592 n.17
(2997) (observing that “{t]he word ‘shall’ is generally construed
as mandatory in legal acceptation”); Yoelimy v, Broderick, 91
Hawai'i 125, 129-30, 980 P.2d 999, 1003-04 (App. 1999) (declaring
that “(t]he word ‘shall’ ‘must be given a compulsory meaning
: and is inconsistent with a concept of discretion’” (quoting
Black's Law Dictionary 1375 (6th ed. 1990) (other citation
omitted)))+ but see Narmore v, Kawatuchi, 112 Hawai'i 69, 03, 143
P.3d 1271, 1285 (2006) (noting that “[w]hile the vord ‘shall’ is
generally regarded as mandatory, in certain situations it may
+ continued)
defendant to comply with the conditions accordingly.
2006 Haw. Sess. L. Act 230, § 20 at 1010 (emphasis omitted). This anendnent
is inapplicable to Respondent inasmuch aa the court accepted his DAGP om
February 11, 2005, before the anananent became effective, gue. 2006 aw. Sess.
L. Act 230," 54 at 1025 (providing that the act would take effect upon its
spproval),"and the amendnent was not nade retroactive, sea 200€ Haw. Sess, L.
Ret 230, $ $1 at 1025 (stating chat “(eJhis Act does not affect rights and
duties that matured, penalties that were incurred, “and proceedings that nere
begun, before its effective date”). “Thus, the amendment dees not change the
analysis in this opinion,
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properly be given a directory meaning” (quoting Jack Endo Elec.
wu Inc., 59 Haw, 612, 616-17, 585 P.2d 1265,
1269 (1978) (citation omitted))). “We cannot change the Language
of the statute, supply @ want, or enlarge upon it in order to
make it suit a certain state of facts. We do not legislate or
make laws.” State v, Dudoit, 90 Hawai'i 262, 271, 978 P.2d 700,
70 (1999). Thus, under the plain and unambiguous language of
HRS § 706-624(3), St 4s mandated that defendants be given written
copies of their conditions.
8.
Additionally, this court has interpreted the word
“shall” as “directory” rather than mandatory only where a three
part test has been satisfied.
an e. Planning Comm‘
Gis F.2d 95 [1980)], ths court articu
ese or sreermining when the word “she
preted as directory. First, “shall” can be read in a
onemandatory sense i +3 purpose"
+ mtg at
Bie, ela Pe2a at 102. Second, “anal” wili not be re
mandatory when “untust consequences” result.” Jd. Fi
Sthe word “shall” say be held to be Rerely directory, shel
hovadvantace te lost, when no riche Je destroves, whan oe
i by giving Te that construction.” Id. at 677,
Bip Peza st 103.
Leslie v. Bd. of Appeals of County of Hawai'i, 109 Hawai'i 384,
394, 126 P.3d 1071, 1081 (2006) (emphases added). HRS § 706-
624(3) does not meet any of the three Perry criteria.
First, there is nothing in the “statutory design” of
either HRS chapter 706, part II, relating to probation, or HRS
chapter @53, relating to DAGPs, that refutes the conclusion that
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HRS § 706-624(3) is “compulsory.” See id. To the contrary, the
underlying policy concerns that certain defendants be allowed to
“rehabilitate” themselves while remaining conviction-free by
complying with specific conditions, see Putnam, 93 Hawai'i at
367-68, 3 P.3d at 1244-45 (explaining the legislative intent to
allow DAGPs so that certain offenders could “keep [their]
record(s] free of a criminal conviction” (citation and emphasis
onitted)), supports a conclusion that “shall,” as used in HRS
$ 706-624 (3), was meant to impose @ mandatory duty on the court.
Second, “unjust consequences” would result if “shall”
as used in this statute was construed to be directory. To
illustrate, some defendants sentenced to probation or DAGPs could
be given written conditions to guide their conduct, while others
would not be accorded direction in @ tangible form. Given the
importance of the conditions in a probationary or DAGP framework,
it would be inherently unfair to permit disparate enforcement of
the requirement that defendants be given the court's directive in
writing to ensure compliance with the conditions.
Third, construing “shall” in this context as directory
would deprive the individual defendants and society of the
intended benefits of the DAGP. As described above, the written
conditions are intended to facilitate adherence to the DAGP
conditions and thus, promote compliance. Successful observance
of the conditions benefits the individual, who remains
conviction-free, and also benefits society, in that the present
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and future productivity of these defendants is preserved and
enhanced. Putnam, 93 Hawai'l at 367-68, 3 P.3d at 1244-45
(explaining that “in certain criminal cases . . . it is in the
best interest of the [prosecution] and the defendant that the
defendant be given the opportunity to keep his [or her} record
free of a criminal conviction, if he [or she] can comply with
certain terms and conditions during a period designated by court
order” (quoting 1976 Haw. Sess. L. Act 154, § 2 at 279)
(emphasis omitted) (brackets in original).
c.
Similarly, Lee cited to State v. Medina, 72 Haw. 493,
824 P.24 106 (1992), in support of its determination thet “actual
notice” was not a substitute for a written copy of the court's
conditions in a similar context. See Lee, 10 Haw. App. at 198,
862 P.2d at 298 (holding that “[iJn view of the plain mandate and
legislative purpose of HRS § 706-624,” the defendant's probation
could not be revoked for vielation of conditions because the
“{djefendant was never given a written copy of the conditions of
his probation’). In Medina, this court: upheld the dismissal of
charges against the defendant for violating a court order
temporarily restraining him from contacting, threatening, or
physically abusing the complainant. 72 Haw. at 493-94, 824 P.2d
at 106, Although the defendant had “actual knowledge” of the
order, id. at 494, 824 P.2d at 106, he had never been personally
served with the order, contrary to HRS § 586-6, which then
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mandated that such orders “shall be personally served uson the
ring in
respondent unless the respondent was present at the h
which case the respondent may be served by regular mail(,]" ide
The Medina court found “unconvincing” the prosecution’ s
argument that the defendant's “actual knowledge” of the existence
of the order was sufficient to allow the prosecution for its
violation, reasoning that “here statutory language is plain and
unambiguous, that language must ordinarily be regarded es
conclusive unless literal application would produce an absurd or
unjust result clearly inconsistent with the purposes and policies
of the statute.” Id. at 494, 824 P.2d at 107 (citing State v
Ealama, 62 Haw. 199, 612 P.2¢ 168 (1980)). Analogously, in the
situation where a probationer has not received a written copy of
the conditions of his or her probation and is facing revocation,
Lee indicated that “(t]he requirement of HRS § 706-624(3) . . .
w surance that a 2 hi
tems and conditions of his proba " a
kevoked for failure to comply...” 10 Haw. App. at 199, 862
P.2d 298 (emphasis added).
o.
Based on the foregoing, it is manifest that sentencing
courts are mandated to provide defendants written copies of the
conditions of a DAGP. Tt would be violative of the statute to
adopt an “actual notice” rule such as that applied by the federal
courts as a substitute for written notice. The ICA’s conclusion
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that “[the court) erred in setting aside (Respondent's) DAG{?]
ve a written copy of the
because [Respondent] did not r
conditions of his DAG(,]” Shannon, 116 Hawai'i at 39, 169 F.3d
at 992 (formatting altered), then, was correct.
xr.
In contrast to the foregoing analysis, the dissent
contends that (1) the written statenent of conditions “is not a
‘condition’ per se by which further proceedings may be
Geferred{,]” dissent at 4, (2) HRS § 853-3 provides consequences
to the defendant if he or she violates the conditions set by the
court pursuant to HRS $§ 853-1," 706-624(1),"* and 706-
ip des entirety, HRS $ 853-1 provides:
(a) Upon proper motion as provided by this chapter:
(i) “Pine o defendant voluntarily pleads guilty or
holo contendere, prior to conmencenent of 2
trial, toe felony, misdemeanor, oF petty
misdemeanor:
(2) Te'appeare to the court that the defendant is
not likely agein to engage in a criminal course
of conduct; and
(3) The ends of Justice and the welfare of society
Go not require that the defendant shall
Presently suffer the penalty inposed by law,
tthe court, without accepting the plea of nolo contendere or
Entering & judgaent of guile and with the consent of the
Gefendent and after considering the recommendations, if any,
Of the prosecutor, may defer further proceedings.
(6) tne proceedings nay be deferred uron giv of the
Gp. As 8 forther
Ecndition, the court_shail inpose a compensation fee
pursuant to section 351-62.6, . + - The court my defer the
Proceedings fora period of tine as the court shall direct
Dut inno case to exceed the maximum sentence ellowsble .
The defendant may be subject to ball oF recognizanc
tne court's discretion during the peried during which the
proceedings are deferred.
cl” open the defendant’ s completion of the period
designated by the court and in complience with the terms and
Conditions established, the court shall discharge the
Gefendant and dieniss the charge against the defendant.
Td] Discharge of the defendant and dismissal of the
charge against the defendant under this section shell be
(cont ince
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624(2),* id., (3) HRS chapter 53 contains no “consequences for
a court’s non-compliance with HRS $ 706-624(3)[,]” id, (citation
omitted) (emphasis added), and (4) “complying with the plain
Language of both HRS § 653-1(b) and HRS § 853-3 would create a
confusing incoherence should a trial court defer proceedings on
the ‘condition’ of HRS § 706-624(3)[,]” Ad. (brackets omitted).
‘Thus, according to the dissent, “the plain language of HRS § 853-
continued)
without adjudication of guilt, shall eliminate any civil
Sanission of guilt, ana is not 4 conviction.
{e) Upon discharge of the defendant and dismissal of
the charge Sgainst the defendant under this section, the
Gefendant may apply for expungenent not less than one year,
following discharge, pursuant to section #31-2-2
(Emphasis added.)
RS § 7106-62412) sete forth the “nandatory conditions of
probation," which at the time Respondent’ DAGP was accepted inclused
la) That the defendant not commit another
federal or state crime during the term of
probation:
(b) That the defendant report to « probation officer
fas directed by the court or the probation
eeticer;
(c) That the defendant remain within the
Jurisdiction of the court, unless granted
Permission to leave by the court of # probation
Sificers
(a) That the defendant notify 2 probation officer
prior to any change in address or employment;
(e) That the defenant notify s probation officer
promptly if arrested or questioned by = law
enforcement officer) and
() That the defendant permit a probation officer to
visit the defendant. at the defendant's home or
elsewhere a2 specified b the court.
HRS § 706-6242) enumerates the “discretionary conditions of
probation,” which at the time Respondent's OAGP was accepted, permitted a
fourt “to the extent that the conditions are reasonably felstes” to general
sentencing factors and “reasonably necessary,” to require that the defendant
a 1m of imprisonment or house eftest, (2) perform community
service, (3) meet various financial obligations, including making restitution,
(4) avoid certain activities, people, and places (5) obtain necessary medical
(tment, including treataent for substance abies, and, percinent to ehis
/ (6) “[slatisty ether reasonable conditions © the court may iapose{s]”
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—_—__SSSSSSSSSSSsSSSSee
1(b) is ambiguous” such that this court “may look to its
legislative history for guidance.” Id. at 5." Respectfully,
this reasoning fails to comport with a plain reading of the
mentioned statutes.
a
Conditions 1isted in HRS § 706-6241) are denominated
‘mandatory conditions of probation[.]” Additional conditions are
set out in HRS § 706~624(2) as “discretionary conditions of
probation{.J” HRS § 853-1, by its express terms, incorporates
these conditions with respect to the DAGP statute. Cf. Kaufman,
92 Hawas's at 328, 991 P.2d at 838 (noting that “the DAG(P)
statute, by its plain language and in light of its legislative
history, provides that the deferral period . . . [1s] subject to
[the] conditions of probation” (citations and internal quotation
The dissent algo considers briefly the other argunents Respondent
raised on appeal to the ICk, judging then to be without merit. See dissent at
Te 'hrthough none of these issues are dispositive of this sppeal, it is worth
foting thet Respondent's argument regarding the condition that ne’ remain
Serest free may havo merit.
{To summarize, Respondent argued that the court did not have
statutory authority to impose 2 condition that he remain arrest free during
Fio"Sefetral period. In response, Petitioner argued, inter alia, that the
Court had authority under HRS § 706-606(1)(q) to require that Respondent
Sfstetisfy other reasonable conditions as the court may impose.” (Emphasis
isles.) dels questionable whether Fequiring a defendant to remain arrest
fee is 2 reasonable condition.
Unlike the other conditions delinested in HRS § 706-624, 2
defendant cannot contol waether he or she is arrested. It would seem
Patentiy vntoir to revoke a defendant's DAGP for failure to comply with
Bonditione sisply because the defendant was arrested, if it was later
Scortained ehet the defendant had comivted ne misdeed. This consideration
tin°be discerned in comparing HRS § 706-624 (1) (a), which mandates that “the
Sefencant eal or ‘during the tine of
probucion(sT* (emphasis. added) to HRS § 70e-624{1)(e), which requires the
Bevencant to “gotifv s orcbsticn officer promptly if arrested cr questioned by
nent officer." {ompheses added.) These sections seen to
Sndieate the Stature distinguishes comitting a crime and merely being
iitasced cr suspected cf doing 20, The condition that Respondent remain
SEreestTana conviction free" blure this distinction and therefore, may be
unreasonable snd inpernissible.
Slaw enter
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marks omitted)). ‘Thus, HRS § 853-1(b) unambiguously establishes
which conditions are applicable to DaGPs.*
HRS § €53-3 instructs that “[ulpon any violation of 2
term or condition set by the court for a [DAGP], the court may
enter an adjudication of guilt and proceed as otherwise
provided.” Accordingly, HRS § 953-3 manifestly establishes the
Gissent’s so-called “consequences” of a violation. on the other
hand, HRS § 706-624(3) unambiguously requires that “the defendant
shall be given a written copy of any requirements imposed
pursuant to this section, stated with sufficient specificity to
enable the defendant to comply with the conditions accordingly.”
the dissent relies on State v, Sylva, 61 Han, 385, 605 7.24 496
(1980), to conclude that construing Lee and the provisions of HRS 706-624
creates ambiguity. See dissent at 13 tnoting that this court,
“notwithstanding the plain Language of HRS § €53-4(7)," “Limited application”
of the statute to minors uho were tried as adulte (citing dulvar €l/ Haw. at
589, €05 P.20 at 93)).. HAS § €53°4(7) provides that “Ielhis chapter shall
ot apply when... (7) (t]he defendant’ is found to be a law violator oF
Gelinguent child for the conmission of any offense defined ae ¢ felony by the
Hawaii Penal Code or for sny conduct which if perpetrated in this seave gould
constitute a felonyl.*
In Sylva, the defendant’s request for AGP was denied pursuant
to URS § 053-4(7) Because as a juvenile, he was adjudicated for offenses which
Would have been felonies if connitted by an adult. €1 Haw. at 386, 608 PZ
at 497. On appeal, this court determined that reading the
Sin'the context of the entire stature and consti
with the purposes of the statutes{,]” ARS § 853-4(7) was ambiguous,
followed Literally would result in'an sbeurd result, because “every defendant,
with a juvenile record for offenses which would have been felonies. if
Committed by an adult would be automatically disqualified from the benefits of
[a] DAG(P.)* “Id. at 386-83, 605 F.2d at 496-99. Accordingly, as neces above,
this court determined that HRS § B53-4(7) was applicable only’ in ceses where
the minor had been tried as an adult, id, at 365, 603 P-2d 499, and gave the
statute a renedial constroction,
‘Sulva did not address whether reading HRS § 706-624 with HRS
$ 853-1 created anbiguity, and pertinently, was decided before the probetion
statute was enacted. In the Instant case, reading HRS $ 106-624 with HRS
§ €53-1 does not create any anbiguity with any other section or with the
Purposes of HRS § 853-1, and therefore, Sviva is inapposite, Further, the
Fenedial construction applied in Sylva cannot be ignored.
30"
‘S+*POR PUBLICATION I WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS+*
On its face, HRS § 706-624(3) does not pertain to
mandatory oF discretionary conditions, but to the “written
statenent of conditions.” Plainly then, HRS § 706-624(3) does
not pertain to conditions the defendant must comply with or
follow. Rather, that section imposes a requirement on how the
defendant is to be notified of the mandatory conditions under HRS
§ 706-624(1) and the discretionary conditions under HRS § 706-
624(2) that the court has chosen to impose. See Conmentary on
HRS § 706-624 (explaining that the purpose of including the
notice provision “is to provide the defendant with notice of what
is expected of the defendant in 2 form which will not escape the
defendant's menory*).
Thus, there are no “consequences” stated in HRS chapter
853 for non-compliance with HRS § 706-624 (3) because HRS § 706-
624(3) does not relate to 2 condition imposed on the defendant.
The “consequences” in HRS § 853-3 obviously relate only to the
defendant inasmuch as such consequences refer only to a condition
“set by the court” for the defendant to follow. The court does
not set as a condition of probation or of the DAGP that delivery
of a written copy of the conditions be performed by the
defendant. Moreover, the violation of conditions in HRS § 653-3
that “may result in an adjudication of guilt” patently would not
% Respectfully, the dissent's dismissal of Les, on the ground that
“construing the plain language of SRS § 853-1 was not before the Tch in thet
ease(,)* dissent at 12, undervalues the import of that case. As previously
Siscussed, se supra, the ICA's reasoning in Lee 1s instructive in the instant
case becauee The =
3
‘e+f0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*
apply to the failure to provide a statement of the conditions
imposed upon the court system, Hence, contrary to the dissent’s
sonfusing incoherence[,]” dissent
position, there cannot be any
at 4, for a court under any plain reading of the statutes
involved.”
‘The fact that HRS § 653-1 does not explicitly adopt the
written condition provision of HRS § 706-624(3) does not mean HRS
§ 106-624 (3) does not apply to OAGPs. As noted before, this
court's precedent deems DAGPs and probation analogous, such that
statutory provisions governing probation may be applied to DAGPs
even when not explicitly authorized in the DAGP statute. See,
e.g, Kaufman, 92 Hawai's at 528, 991 P.2d at 838 (holding that
“the DAG deferral period is closely analogous to a probationary
period” such that “the probation tolling statute . . . applies
analogously to the deferral of a DAG(P]” (internal quotation
marks omitted). Given the similarity between probation and
DAGrs previously recognized by this court, see id., and the fact
that both schemes impose the sane conditions, see HRS § 953-1(b),
ie is evident that the conditions must be communicated to the
defendant in the same way, whether the defendant is subject to
probation or to a DAGP.
H the dissent's assertion thet there are no consequences if the
court faile to comply with HRS § 706-624 3) cennot be agreed to. Aside from
the Feasons set forth supra, case law establishes that this failure renders
the court incompetent to revoke a defendant's probaticn for failure to comply
With those conditions. See Leg, 10 Haw. App. at 192, 662 7.24 at 295°96
{holding that “a defendant’s probation may [not] be revoked for his failure to
comply with a special condition of probation,” when “he was never provided
with uritcen notice of that condition"); cf. Keutman 92 Howal't at 328, 992
P.2d at 638 (holding that OAGPs and probation are closely snalogous) «
32+
s#sPOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER*#*
Se
B,
With all due respect, the dissent’s analysis of the
legislative history of HRS $§ 853-1, 853-3, and 706-624, see
dissent at 5-11, does not support its conclusion that HRS § 706-
624(3) is not applicable to DAGP conditions. The dissent recites
the amendments made and notes the paucity of guidance from the
legislature, but otherwise fails to demonstrate how the
legislative changes indicate that HRS § 706-624(3) is intended to
apply only te probation and not to DAGPs. In fact, the
legislature favors formality and regularity of procedures in
informing defendants of the conditions by which they must
abide.” See discussion gupra and Commentary to HRS $$ 706-624
and 706-604.
XIII.
a
It would appear logical and consistent with the penal
code’s insistence that the regularity and formality of imposing
probation or DAGP conditions in writing, should extend as well to
a motion to revoke probation or DAGP for failure to comply with
® As noted before and significantly, the most recent anendnent to
ns § 706-6243) added the provision that "(t]he court shall order the
Gefendant st the tine of sentencing to sign a written acknowledgenent of
Fecelpe of conditions of probation.” 2006 Maw, Sess. L. Act 230, § 20 at
1010," the spendnent thus mandates e specific time st which the Court must
provide the defendant with the written copy of the conditions of probation,
Chereby meting the process more uniform. Additionally, the direction that
this be done at the tine of sentencing, meaning that it aust be done in a
Courtrcom curing a court proceeding, Lends formality to the occasion. Thus,
Ghe inportonce ef complying with the conditions is impressed upon the
Sefendont. As noted Bubra, this anendnent is not applicable to Respondent.
336
‘+*4F0OR PUBLICATION IN MEST’S HAWAI'I REPORTS AND FACIFIC REPORTERS
those same conditions.** Moreover, the statutes regarding the
Amposition of conditions and the statutes regarding revocation
for failure to comply with such conditions all relate to
“probationary periods.” See Kaufman, 92 Hawai'i at 328, 991 P.2d
at 836. Hence, they must be read together. See State v.
Mupihea, 98 Hawai'i 196, 202, 46 P.3d 498, 504 (2002) (**Laws in
pari materia, or upon the sane subject matter, shall be construed
with reference to each other. What is clear in one statute may
be called upon in aid to explain what is doubtful in another.’*
(Quoting HRS § 1-16 (1993)) (other citation omitted)
(underscoring added); Putnam, 93 Hawai'i at 371 n.9, 3 P.3d at
1248 n.9.
B
As noted previously, HRS § 706-624(3) requires that
defendants be given written copies of conditions on probation.
In that connection, HRS § 706-627(1) (1993) provides that
# Although this issue was not raised in the application for
certiorari, it was argued to the ICA. Respondent argued that the plain and
tunambiguous language of HRS § 706-227 (1) "require[s) the filing of @
rotion to set aside « OAG(P) in order to toll the deferral period. . aste
matter of procedural due process.” (Emphasis in original.) Accordingly,
Respondent argued that because Petitioner did not file a written motion to
revoke Respondent's DAGE, "the one-year period of deferral had expired" "by
February 11, 2006,” “and’ [the court) was without Jurisdiction to set aside the
DAG(F) + . son April 6, 2006,
Petitioner answered that “revocation of @ DAGP is specifically and
gupressly governed by HRS § 853~3[,]" (quoting state v, Eutnam, 93 Hawal't
3e2, "368, 3 F.3e 1238, 1245 (2000), a “plain reading of [which) oes not
require that a written motion be filed in order to set asice (a dlefendant’s
DxG[P)." Relatedly, Petitioner posited thet absent “an expressed requirencnt
within the DAGIP] statute of a written motion to set aside, the oral motion
Would seen to suffice.” (Citing state w. Babago, 102 fawai't 236, 245, 81
F.3d 1131 1140 (2003)). Finally, Petitioner argued that Respondent “had ample
Rotice of [itel intention to set-aside (aic] his deferral from hit appearance
before the court on January 27, 2006, for proof of compliance hearing.
wherein he was found in violation of his DAGP terms vs t+
=34-
|FOR PUBLICATION TN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*:
Jon the notion to
The period of probaticn shall be tolled pending the hearing
pen’ the motich and the decision of the court.
ing eh: from the
Rotlen thresh and inciudine the Zilina date of the wisten
decision of the coast concerning the motion for purposes of
Genputetion of the Feneining Period of probation, 4 ¢ny
Sao Se SRS ESSE EEiting of the probation, the
Sefendant snail Tessin subject to oil terms ane conditions
of he chat ion’ excep en sthernae prvice by this
(emphases added.) First, reading the plain language of this
statute, it is evident that motion to revoke probation, and by
analogy, a motion to revoke # DAGP, must be in writing. Cf
Kaufman, 92 Hawai'i at 329, 991 P.2d at 839 (concluding that the
express language of the DAGP statute as well as “the public
policy concerns and legislative intent underlying the tolling of
probation” rendered that provision “equally applicable to the
The
tolling of a deferral period pursuant to [a] DAGIP]”
statute expressly requires that such a motion be filed. “File”
As not defined in the statute. In its ordinary application, to
“file” Ls “to deliver a legal document to the court clerk or
record custodian for placement into the official record.”
plack’s Law Dictionary 660 (8th ed. 2004). See Blaisdell v
Dep't of Pub, Safety, 113 Hawai'i 315, 319, 151 P.3d 796, 800
(2007) ("Where a term is not statutorily defined . . . we may
rely upon extrinsic aids to determine such intent. Legal and lay
dictionaries are extrinsic aids which may be helpful in
discerning the meaning of statutory terms.” (Quoting Singleton
vs Liquor Comm'n, 111 Hawai'i 234, 243-44, 140 P.3d 1014, 1023-24
-35-
‘s+4FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS:
(2006) (internal quotation marks, brackets, and citation
omitted))).”
In this context, a plain reading of the statute leads
to the conclusion that the “filing of a motion” is required to be
in writing. See Putnam, 93 Hawai'i at 367, 3 P.3d at 1244
(instructing that “we must read statutory language in the context
of the entire statute and construe it in a manner consistent with
its purpose” (citation omitted)). Hence, only written motions
can be presented to the court clerk to be placed into the
official record. See State v, Gomes, ~~ Hawai'i --, --, 177 P.3d
928, 942 (2008) (stating that this court is “bound to construe
statutes so as to avoid absurd results” (quoting Zavese v, Dep't
of Labor & Indus, Relations, 113 Hawai'i 1, 31, 147 P.3d 785, 025
(2006) (internal quotation marks and citation omitted)}). In
contrast, oral motions, such as the one challenged herein, cannot
be “filed” for inclusion in the official record.
c.
Second, reading HRS § 706-624(3) in pari materia with
HRS § 706-627(1), it is evident that the legislature favors
formality where conditions of probation and analogously, DAGPs
are concerned, such that both the conditions and motions to
revoke for failure to comply with those conditions must be in
writing. The commentary on HRS § 706-627 supports the conclusion
Wd whether an oral motion constitut
627(1}.. Neither Petitioner nor
spective contentions oh this
Our courte have not addr
the “filing of a motion” under HRS §
Respondent offers cases to support ite or hia 1
Sete.
~36-
‘s+4POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTERS*®
that the motion to revoke probation must be in writing.
It emphasizes that the statute requires “writte
notice” of the intent to revoke as a matter of procedural due
process. Specifically, it states in relevant part that
[e)hds section affords the defendant threatened with loss oF
change of suspension or probation status the sane crocedural
Brotection afforded a defendant at the tine of ociainal
Sioa: ng to revoke sus
Eexet Fs ftntormalit
Scunsel ang to be heard -upen the evidence,
This ison ares where dangers of abuse are
xeuL_and the noreal procedural protection’
Sioper. thats defendant has ho right to
Huspension or probation does not justify the
flteration of his status by nethoas that aust
Seon and sonet ines be unfair~
Although written notice, the right to be represented
by counsel, and the Fight to controvert and be Heard upon
the evidence, axe provided by this section, it is not
Cohtenplated that the court aust strictly enforce the rules
of evidences ss
Conmentary on HRS § 706-627 (emphases added) (citation omitted)
(quoting Model Penal Code, Tentative Draft No. 2, comments at 152
(1954)). ‘The procedural protections available at the tine of
original sentencing are codified at HRS 706-604 (1993 6 Supp.
2006)" ‘Those protections include (1) the opportunity to be
% HRS § 706-604 provides, in pertinent part, tha
(2) Before {mposing sentence, the court shall afford
bf the defendant’s disposition
2), dis-cauxt shail furnish to the defendant or the
defendant's counsel. g-copy of the report of any ore
sentence diagnosis or savcholoaical, psychiatric, oF other
Redicel exeninetion ang afterd-tair opportunity, if the
Gefendant or the prosecating ettorney so requests, £2.
Soutrovart te supplement thea. The court shall amend or
Sraer the anenanent of the report upon finding that any
Correction, modification, or addition is needed and, where
Speropriate, shall requite the prompt preparation of an
amended report in wich material required to be deleted is
Completely renoved or other anendnents, including additions,
are made
(continued...)
37
‘s*470R PUBLICATION IN WEST'S HAKAI'I REPORTS AND PACIFIC REPORTER*#*
heard and (2) the opportunity to review, dispute, or supplenent
any pre-sentencing diagnosis or medical examination report.
The defendant must be informed of the presentence
report beforehand in order to prepare for the hearing on his
sentence. The Commentary on HRS § 706-604 explains that “[t)he
right of the defendant to controvert the pre-sentence report is
meaningless to the extent that the report, or a part thereof, is
not made available to the defendant.” As a matter of due process
2 motion to revoke probation or, analogously, to revoke a DAGP is
Like a presentence report in that the defendant must be notified
beforehand in order to allow him to contest it, if he wishes.
‘The same formality must exist because 2 motion to revoke
probation or a DAGP allows the court to render other sentencing
alternatives that had been open to it at the time of the original
sentencing.
Additionally, HRS § 706-604 requires that “the court
shall furnish a copy of the [presentence] report . . .
(Emphasis added.) In line with this “procedural protection[,]”
the penal code indicates that a defendant, “threatened with loss
or change of . . . probation status{, must be given] the sane
procedural protection afforded . . . at the time of original
disposition{, i.e., sentencing]. Commentary on HRS § 706-627.
Similarly, a motion to revoke probation or a DAGP must algo be in
#(.. .continved)
(Enphases ‘sdded.)
=38-
sesfOR PUBLICAZION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTERY*
Se
writing and the defendant provided a copy in a manner equivalent
to the procedural protection of written conditions that was
originally required “at the time of original disposition.” Id.
‘The Commentary on HRS § 706-604 posits that “[a]nything
less than full disclosure is inconsistent with the truth-seeking
function of the judicial process and the rehabilitative function
of penal sentences.” These concerns lend credence to the
position that motions to revoke are weighty matters deserving
proportional solemnity in their resolution. See Commentary on
HRS § 706-627 (“Determinations to revoke . . . probation are
sometimes made with a degree of informality that does not afford
|. . adequate opportunity . . . to be heard... .")-
xIV.
‘The dissent concludes that because HRS § 706-627(1)
refers to a written ruling by the court on a motion to revoke
probation, but does not contain @ similar reference to initiating
the motion to revoke, non-written revocation motions satisfy the
statutory requirements. Dissent at 19-20 (arguing “that the
legislature intended, for purposes of tolling a deferral period,”
an oral motion to revoke a DAGP suffices (citing State v. white,
110 Hawai'i 79, 83, 129 P.3d 1107, 1111 (2006) (for the
proposition that “[wJhen 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”)). However, it appears
=39-
/+FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER
that under HRS § 706-627(1),%* a court’s written decision on a
motion to revoke probation establishes a definite end date for
purposes of tolling the probationary period, If, however, a
written decision is not filed by the court, the probationary
period could conceivably be tolled indefinitely, subject to other
rules, See, e.0., Kaufman, 92 Hawai'i at 327, 991 P.2d at 637
(explaining that “[a] court may defer the proceedings for such
period of time as the court shall direct but in no case to exceed
‘the maximum sentence allowable”).
Therefore, HRS § 706-627(1) anticipates that a court
may make an oral ruling on a motion to revoke probation but fail
to reduce its ruling to writing, and, in the interest of
finality, allows the tolling period to be computed using the date
of the oral ruling under those circumstances. Based on the
foregoing, it is manifest that the “written” decision of the
court is not analogous to the prosecution's motion to revoke
probation, but rather, is one of two conceivable ways the
applicable tolling period may be measured from the time a motion
to revoke is filed. Indeed, as opposed to an acknowledgment in
% to reiterate, the pertinent portion of the statute provides:
‘The period of tolling shail be conputed from the fling date
of the motion through and inclusing the filing date of the’
written decision of the court concerning the motion For
urposes ef computation of the rensining period of
probation, if any.
initten decisian upon the notion, the period shall be
Geaputed by reference to the date the court makes @ decision
tipon the motion In open court.
HRS § 106-627(2) (empheses added)
~40-
s+4P0R PUELICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REFORTER!
the statute that courts may “fail to file a written decision,
nothing in the statute tolerates the “fail{ure] to file a
written” motion to revoke. (Emphasis added.) See discussion
supra.
xv.
Because Petitioner did not file a written motion to
revoke Respondent's DAGP, the probationary period was not tolled.
Respondent's DAGP was entered on February 11, 2005. The court
accepted the DAGP and imposed a one-year deferral period. On
January 27, 2006, Petitioner made its oral motion to revoke
Respondent's DAGP. As stated above, because the motion was not
in writing, it was ineffective for purposes of tolling the
deferral period. Thus, the deferral period terminated on
February 11, 2006.
on April 6, 2006, the court purported to set aside
Respondent's DAGP. However, inasmuch as the deferment period had
expired approximately two months earlier, the court lacked
jurisdiction to revoke Respondent’s DAGP. See Kealaiki, 95
Hawai‘ at 315, 22 P.3d at 594 (“Successful completion of the
deferral period results in dismissal of the charge and can lead
to expungement of the defendant's criminal record.” (Citing HRS
§ 953-1(c) and (e)); Putnam, 93 Hawai'i at 368, 3 P.3d at 1245
(explaining that the legislature’s intent in enacting the DAGP
statute was “to enable a defendant to retain a record free of @
criminal conviction by deferring a guilty plea for a designated
-a-
‘**FOR PUBLICATION IN WEST’ HAWAI'I REFORTS AND PACIFIC REPORTER**+
period and imposing special conditions which the defendant was to
successfully complete” (citation and internal quotation marks
omitted)); Kaufman, 92 Hawai'i at 327, 991 P.2d at €37 (noting
that, pursuant to HRS § 853-1(c), “a court cannot set aside a
DAG(P] after the period of deferral has expired”); see also State
vs Viloria, 70 Haw. 58, 60, 759 P,2d 1376, 1377 (1986) ("A
sentencing court had jurisdiction to revoke a sentence of
probation up until the termination of probation.“); Palana, 62
Haw. at 162, 612 P.2d at 1170 (*{A] sentencing court [has] the
authority to revoke the probation of a defendant at any tine
before the termination of the period of probation... ./");%
si. State v. Jom, 69 Haw. 602, 603, 752 P.2d 597, 598 (1988)
(affirming the trial court’s denial of a deferred acceptance of
no contest (DANC) plea in a drunk driving case because “[a]
repeat offender given 2 DANC plea on the first offense could
+ escape enhanced sentencing under the DUI statute by
committing a second offense after DANC jurisdiction had expired
but within the five year period of the DUI sentencing scheme”
(citation omitted)). Inasmuch as Respondent’s DAGP could not
have been revoked for lack of written conditions, see Lee, supra,
and Petitioner's oral motion to revoke should have been in
writing, the decision of the ICA is affirmed, the court’s order
* Ealana discussed HRS § 706-628, which et the tine governed the
revocation of probation or suspension of sentence. In 1985, IRS § 706-628 was
repealed and consolidated with HRS § 706-625. 1985 Haw. Sess. L. Act 192, $¢
T'S ae 327-28.
426
FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER
granting Petitioner’s motion to set aside Respondent's DAGP is
vacated, and the matter is remanded with instructions to dismiss
the motion with prejudice.
petitioner/plaintife-
appellee.
Hayden Aluli, on the Coren e, Debt te
brief, for respondent /
defendant-appeiiant.
43+
| bd9f3fd664cc8e0187641ef61ed5faa34334f3c740d23bef0da961383af15131 | 2008-05-29T00:00:00Z |
fc286da5-42d9-4b32-b5d6-961dc4f07931 | Del Monte Fresh Produce | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
---000
DEL MONTE FRESH PRODUCE (Hawasi),
ve
FIREMAN’ S FUND INSURANCE COMPANY; AMERICAN HOME ASHURANCES
(COMPANY; AMERICAN RE-INGUBANCE. COMPANY; COMMERCIAL UNION
INSURANCE. COMPANY, LEXINGTON INSURANCE COMPANY; NATIONAL
CONTINENTAL INSURANCE COMPANY; MOTOR VEHICLE CASUALTY COMPANY,
and LONDON MARKED INSURERS, Defendants-Appeilants,
and
CONTINENTAL INSURANCE COMPANY, LUMBERMENS MUTUAL INSURANCE
COMPANY, CIGNA PROPERTY & CASUALTY COMPANY; PROGRESSIVE CASUALTY
COMPANY, ACCIDENT & CASUALTY COMPANY, ACCIDENT & CASUALTY COMPANY
NO. 2 A/C, ACCIDENT & CASUALTY INSURANCE COMPANY NO. 3 A/C,
ANDREW WEIR INSURANCE COMPANY, LTD., ARGONAUT NORTHWEST INSURANCE
COMPANY, 2TD., ASSICURAZIONI GENERALI DI TRIESTE DE VENEZIA,
ASSICURRZIONIS GENERALI S.P.A., BELLAFONTE INSURANCE COMPANY,
BERMUDA FIRE & MARINE INSURANCE COMPANY, BISHOPSGATE INSURANCE
COMPANY, LTD., BRITISHGATE INSURANCE COMPANY, LTD., BRITISH
NORTH-WESTERN INSURANCE COMPANY, LTD., DELTA“LLOYD’ NON LIFE
INSURANCE COMPANY, LTD.,
EDINBURGH ASSURANCE COMPANY, LTD.,
EXCESS INSURANCE COMPANY, LTD., FIDELLIDADE INSURANCE COMPANY,
LTD., HAWK INSURANCE COMPANY, LTD., HELVETIA INSURANCE COMPANY,
LnD., HIGHLANDS INSURANCE COMPANY, LONDON & OVERSEAS INSURANCE
COMPANY, LTD., MENTOR INSURANCE COMPANY, (OK), LID., MINSTER
INSURANCE’ CO., LTD., MUTUAL REINSURANCE COMPANY, LTD., NATIONAL
CASUALTY COMPANY OF AMERICA, NEW LONDON REINSURANCE COMPANY,
LTD., RIVER THAMES INSURANCE COMPANY, LTD, ST. HELEN'S INSURANCE
COMPANY, LTD., ST. KATHERINE INSURANCE COMPANY, STRONGHOLD
INSURANCE COMPANY, LTD., SWISS UNION GENERAL INSURANCE CO., LTD.,
TUREGUM INSURANCE COMPANY, LTD., WALBROOK INSURANCE COMPANY,
LTD., WINTERTHUR SWISS INSURANCE COMPANY, WORLD AUXILIARY
INSURANCE CORPORATION, LTD., YASUDA FIRE & MARINE INSURANCE
COMPANY (UK), LTD., CERTAIN’ UNDERWRITERS AT LLOYD'S LONDON,
CERTAIN UNDERWRITING SYNDICATES AT LLOYDS, LONDON, DEL MONTE
‘CORPORATION, RJR NABISCO, INC., AND DOES 1 THROUGH 2000,
INCLUSIVE, Defendants.
No. 24647
MOTION FOR RECONSIDERATION
(CIV. NO, 97-3323)
FEBRUARY 20, 2008
MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.
AND ACOBA, J., CONCURRING SEPARATELY, WITH WHOM DUFFY, J., JOINS
Plaintif£-Appellee’s motion for reconsideration of the
opinion filed on Decenber 26, 2007, is hereby denied.
John R. Myrdal and
Elise Owens Thorn of
Clay Chapman Crumpton
Iwamura § Pulice and
Michael J. Lynch Le Pbvirrner—
(Pro liac Vice) of
Kirkpatrick @ Lockhart Neue cor seotey cre
Preston Gates & Ellis LLP
for Plaintiff-Appellee
ICURRING OPINION
YC WITH WHON Je, JOINS
Based on my concurrence, I concur in the denial of the
motion for reconsideration.
| fcfb0ff48f3073fa18f01e2f9688dddff811520066f0377eef8753d31a5973ec | 2008-02-20T00:00:00Z |
bf44951c-443d-4810-90b1-65259ceeef95 | Pioneer Mill Company, LLC v. Mason | null | 28746 | hawaii | Hawaii Supreme Court | No. 28746
IN THE SUPREME COURT OF THE STATE OF HAWAZ'T
PIONEER MILL COMPANY, LLC, Respondent-Plaintiff-Aappellee,
MATHILDA NOELANI MASON, Petitioner-Defendant-Appellant,
HEIRS OR ASSIGNS OF KEONI and NUHT, and
ALL WHOM IT MAY CONCERN, Defendante-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CIV. NO. 05-1-0330)
R cer:
(By: Moon, C.J. for the court)
upon consideration of Mathilda Mason's February 15,
2008 papers, which are deemed an application for a writ of
certiorari to review the intermediate court of appeals’ February
1, 2008 order dismissing appeal,
YP IS HEREBY ORDERED that the application for a writ of
certiorari is rejected
DATED: Honolulu, Hawai'i, February 29, 2008.
FOR THE COURT:
“a dustice
HRY 62.935 8002
1un03.
ci
8
oz
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 37
aaus
| fd8bcac410a2b8aae153d73ce61abf69272f8deaf93c9723dc5aaa65d702bfde | 2008-02-29T00:00:00Z |
41a30484-a9ff-45bb-b49c-3c1036235b01 | State v. Kamanao | null | null | hawaii | Hawaii Supreme Court |
No. 28236
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
anu
STATE OF HAWAI'I, Respondent/Plaintiff-Appelled:
ANDREW K. KAMANR'O, Petitioner/Defendant-Appeliant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 56708)
(By: Reoba, J., fr the court")
Petitioner/Defendant-Appellant Andrew K. Kamango’s
application for writ of certiorari, filed on January 28, 2008, is
accepted and will be scheduled for oral argument. The parties
will be notified by the appellate clerk regarding scheduling.
DATED: Honolulu, Hawai'i, March 6, 2008.
FOR THE COUR
eae
SIMEON R. ACOBA, JR.
Associate Justice
Mary Ann Barnard, on the
application for
petitioner/defendant-
appellant.
+ Levinson, Nakayama, Acoba, and Duffy, 33.
* Considered by Moon, Cc.
| c1d54877ae3020cb5eb5c5cf6bea06bc17b994e570ac2b09ed0d64aab4134f4f | 2008-03-06T00:00:00Z |
adfbd475-3aca-4481-80e0-deca9428bf44 | Hofelich v. State | null | 28841 | hawaii | Hawaii Supreme Court | LAW LIBRARY
wo. 28841
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
HOWARD HOFELICH DBA H ISABELLE MCGARRY TRUST OF
MARCH 19, 1971 AND SOUTH PACIFIC DIVERS, INC.,
‘A HAWAII CORPORATION,
Petitioner-Plaintiff-Appel lant
STATE OF HAWAII, STATE OF CALIFORNIA, DENNIS KRUEGER,
DEPARTMENT OF PUBLIC SAFETY HAWAII COUNTY SHERIFFS DEPARTMENT,
HAWAII COUNTY POLICE DEPARTMENT, JUDGE RONALD IBARRA, STEVE
WHY'TTAKER, DAVID LACY, DAVID KAAPU, JOHN DOES 1-5, JANE’ DOES 1-2,
‘CORPORATION ENTITIES 1-10, TRUST ENTITIES 1-2, GOVERNMENT
ENTITIES 1-2,
Respondents-Defendants-Appellees,
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIV. NO. 07-1-0133K (KONA) )
ER CR!
(By: Hoon, C.J. for the court’)
Petitioner-plaintiff-appellant Howard Hofelich’s
application for writ of certiorari, filed on April 17, 2008, is
hereby rejected
DATED: Honolulu, Hawai'i, May 7, 2008.
FOR THE COURT:
aawd
C16 WY L- AVR OOO
* considered by: Moon, C.J., Levinson, Nakayama, Acoba, end Duffy, Jd.
| 54df0f79e7bd63c0abfaff66c597075bf0749dd38fbedd65c1db81647acfd19c | 2008-05-07T00:00:00Z |
db76063d-f71b-4077-b747-92991a1129f4 | In re Vecchiet-Lambert | null | null | hawaii | Hawaii Supreme Court | No. 28981
2 834 9002
IN RE NADYA D.A. VECCHIET-LAMBERT, Petitioner
nee Re
ORIGINAL PROCEEDING
RANT: ON 10 RE! DER LI
Moon, C.d., Levinson, Nakayama, Acoba, and Duffy, J.)
upon consideration of Petitioner Nadya D.A. Vecchiet~
Lambert's Petition to Resign and Surrender License, the attached
affidavits, and the lack of objections by the Office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai'i (RSCH). Therefore,
IT 18 HEREBY ORDERED that the petition is granted.
IT 1S FURTHER ORDERED that Petitioner Vecchiet-Lanbert
shall return her original license to practice law to the Clerk of
thie court forthwith. The Clerk shall re
nthe original
License 25 part of this record. Petitioner Vecchiet-Lanbert
shall comply with the notice, affidavit, and record requirements
of subsections (a), (b), (d), and (g) of RSCH 2.16.
If 18 FINALLY ORDERED that the Clerk shall renove the
name of Nadya D.A. Vecchiet-Lambert, attorney number 6094, from
the roll of attorneys of the State of Hawai'i, effective with the
filing of this order.
DATED: Honolulu, Hawai'i, February 26, 2008.
i.
Preeti bP uateney eave
Alen & Desig Ge
oad
| 1ff3a50fb6e50da0ad923929987e8500c6e8322e0de7125ae3c7887996e8337c | 2008-02-26T00:00:00Z |
063e62b9-9835-4b77-a7cc-95f7e466ed34 | Shimabukuro v. Government Employees Insurance Company | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
No. 27222
IN THE SUPREME COURT OF THE STATE OF #i
Petitioner/Plaintiff-Appeliant
HALFORD SHIMABUKURO, Peti
GOVERIOIET EYPLOYEES, INSURANCE COMPANY (GEICO:
Respondent /Defendant-Appellee,
£18 Ha 61 sovama
ats
and
JOHN DOES 1-20, Defendants
CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS
(crv. NO. 03-1-1716)
BCID FOR WRIT
(By: Moon, C.d., for the court?)
Petitioner Halford Shimabukuro’s application for writ
is hereby rejected.
filed duly 28, 2008,
Honolulu, Hawai'i,
2008.
of certiorari
August 19,
DATED:
Gary ¥. Okuda, (of Lew FOR THE COURT:
and Okuda), for petitioner/
plaintiff-appeliant, on a
hbe Sustics a
the application
Cees
Acoba, and
Moon, C.0., Levinson, Nakayana
» considered by:
| 6e6345c53c7bff0d382c4bb28a8f1231893d182d97b9bee6b862988cb2b0876f | 2008-08-19T00:00:00Z |
6e86e180-de67-44cb-9a52-f638c220baa1 | Flores v. The Rawlings Company, LLC. | null | null | hawaii | Hawaii Supreme Court |
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
---000---
ALBERT FLORES and DONALD R. RAPOZA, Plaintiffs-Appellees
THE RAWLINGS COMPANY, LLC, Defendant-Appellant
No, 28124
8
MOTION FoR RECoNS1 ERATION 2
(etv. No. 04-1-2388) 5
28 2
MARCH 27, 2008 3 a
a
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.
Upon consideration of Defendant-Appellant The Rawlings
Company, LLC's motion for reconsideration filed on March 17,
2008, the papers in support thereof, the record herein, and the
fact that this court has not granted, or ordered the circuit
court to grant, any injunctive relief to Plaintifts-Appellees
Albert Flores and Donald Rapoza in this case,
IT IS HEREBY ORDERED that the motion is denied.
and Devon I.
for defendant-appellant
Nena Me aro
Lissa H. andeews
Peterson Grr
| c480b6cc847996e8e0adfdc5d8441f0d725a3913e74c96a0f40866bb5e9a9690 | 2008-03-27T00:00:00Z |
ae0330b2-9683-4b2b-ad87-16a530e8d185 | In re Rogin | null | 29098 | hawaii | Hawaii Supreme Court |
wo. 29098 2
ORIGINAL PROCEEDING
PETITION TO ND SURRENDER LICENSE
(py: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, Jd.)
Upon consideration of Petitioner Edward 8. Rogin's
Petition to Resign and Surrender License, the attached
affidavits, and the lack of objections by the office of
Disciplinary Counsel, it appears that the petition complies with
the requirements of Rule 1.10 of the Rules of the Supreme Court
of the State of Hawai'i (RSCH). Therefore,
IT 18 HEREBY ORDERED that the petition is granted.
IT TS FURTHER ORDERED that Petitioner Rogin shall
return his original license to practice law to the Clerk of this
court forthwith. The Clerk shall retain the original license as
part of this record. Petitioner Rogin shall comply with the
notice, affidavit, and record requirements of sections (a), (b),
(d), and (g) of RSCH 2.16.
IP IS FINALLY ORDERED that the Clerk shall remove the
name of Edward B. Rogin, attorney number 6526, from the roll of
attorneys of the State of Hawai'i, effective with the filing of
this order.
DR? Honolulu, Hawai'i, April 28, 2008.
LPL
Pea Araneae
Bones Doty Bh + t
oats
| 645f4f3bd56a5804434d1340dd89e3277029188d2af87560e60671c5d60ad40b | 2008-04-28T00:00:00Z |
3a4d83f3-8efa-4165-be49-3bd6258f58c8 | Williams v. State | null | null | hawaii | Hawaii Supreme Court | No. 29343
DAVID V. WILLIAMS JR., Petitioner/Petitioner-i
STATE OF HAWAIT, Respondent /Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRS? CIRCUIT
(SPP NOS. 07-1-0006; 07-1-0007)
LICATION FOR
(By: Moon, C.J. for the court’)
Petitioner/petitioner-appellant David V. williams, Jr.,
by application for a writ of certiorari filed on October 8, 2008,
seeks supreme court review of the October 1, 2008 order of the
Intermediate Court of Appeals, denying petitioner’s motions for
appointment of coun:
1, for release from prison, and to expedite
appeal, ‘The October 1, 2008 order is not reviewable by the
supreme court by application for a writ of certiorari. See HRS
§ 602-59(b) (Supp. 2007). Therefore,
IT IS HEREBY ORDERED that the application for a writ of
certiorari is dismissed.
DATED: Honolulu, Hawai'i, October 21, 2008,
aN
SEAL
FOR THE COURT:
i
ht Justice
* considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 33,
| ce27b1378870637db39148ece14ee9698e07436fac5947054ccc56b26b9eeed6 | 2008-10-21T00:00:00Z |
908a3aae-5744-4054-9b75-b047a6e9a61a | Connor v. Frank | null | 29056 | hawaii | Hawaii Supreme Court | no. 29056
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
DE MONT R. D. CONNER, Petitioner,
vs. ™
CLAYTON FRANK, DIRECTOR OF THE DEPARTMENT
OF PUBLIC SAFETY, STATE OF HAWAI'I, ‘mnt
ORIGINAL PROCEEDING
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.
Vd 91 ww
a3
an
upon consideration of the petition for a writ of
mandamus filed by petitioner De Mont Conner and the papers in
support, it appears that HRS § 353-16.2 (Supp. 2007) authorized
the respondent director of public safety to transfer petitioner
to an out-of-state correctional institution. The transfer was
not prohibited by HRAP 23(a) inasmuch as (1) HRAP 23 applies to a
habeas corpus proceeding initiated in the supreme court pursuant
to HRS § 660-3 (1993) and (2) petitioner’s proceeding in
appellate court No. 26240 is an appeal to the intermediate court
of appeals, filed pursuant to HRS $§ 641-1(a) and 641-11 (Supp.
2007), of a habeas corpus proceeding initiated in the circuit
court pursuant to HRPP Rule 40, Therefore, petitioner is not
entitled to mandamus relief. See In Re Disciplinary Bd. of
fiawaii Supreme Court, 91 Hawai'i 363, 984 P.2d 688 (1999)
(Yandanus 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.). Accordingly,
'T IS HEREBY ORDE!
that the clerk of the appellate
court shall renove the petition for a writ of mandamus from
appellate court No. 28240 and process it as an original
proceeding without payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
mandanus is denied.
DATED: Honolulu, Hawai'i, March 14, 2008.
eects COT echo lLse™
(DNS
(ene onag, 8.
| ca25f325516659ea731e0d4050a54d2f4c1cb02a2c796559246cf915b875de57 | 2008-03-14T00:00:00Z |
e36d1721-efbb-437b-8dcb-041bc5cefc38 | State v. OConnor | null | null | hawaii | Hawaii Supreme Court | No. 27766
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I,
Respondent /Plaintiff-Appellee
STEVEN 0" CONNOR, ale
Petitioner/Defendant-Appellant
—SSSsSSSSSSSSSsG( ee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 03-1-1477)
ORDER REJECTING APP! wRIT
(By: Acoba, J., for the court”)
‘The Application for Writ of Certiorari filed on
February 28, 2008 by Petitioner/Defendant-Appellant Steven
O'Connor is hereby rejected.
DATED: Honolulu, Hawai'i, March 24, 2008.
: FOR THE COURT:
aaa
Associate Justice
Rani
jel I. Shintani, on
the application for
petitioner/
defendant-appellant.
Mocn, C.3., Levinsen, Nekayens, Aeobs, anc
| 82759e7f6887b59e2da2d087d4bb61ce0170f2e3faaadbfd1f6c5f1b7a9e613e | 2008-03-24T00:00:00Z |
e2edfef4-1d38-4d05-b2b0-df8a9aa0b5cc | McKinley v. State | null | null | hawaii | Hawaii Supreme Court | LAW USRARY
Wo, 28082
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
RICHARD H. MCKINLEY, Petitioner-Appellant,
STATE OF HAWAI'I, Respondent-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(8.P.P. NO. 06-1-0028)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Nakayama, J., for the court’)
Petitioner-Appellant’s application for writ of
certiorari filed on March 7, 2008, is hereby rejected.
DATED: Honolulu, Hawai'i, March 20, 2008.
on HE count: oR
ge 4
Prin Divide |” SEALS
Associate Justice
Shawn A, Luiz
for petitioner-appellant
on the application
‘Vuh 1 YHUON
qa
g
z
3
‘considered by: toon, C.J., Levinson, Nakayama, Acobs, and Duffy, 39.
| 7723a4fb74ae4be5bf6a64f5e437ea4e79405b0207079a99f10850bb0859aa3b | 2008-03-20T00:00:00Z |
e0aec605-2e20-4a04-a3f3-3397a5d7faaf | State v. Merkel | null | null | hawaii | Hawaii Supreme Court | UAW CLERKS
No. 28085
IN THE SUPREME COURT OF THE STATE OF HAWAT‘T
SEE
STATE OF HAWAT‘I, Respondent /Plaintif£-Appellant,
DAVID MERKEL, Petitioner/Defendant -Appellee.
ee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(HPD NO.: 04513492 (1P104-17741))
ORDER REJECTING APPLICATION POR WRIT OF CERTIORARI
(By: Moon, C.J., for the court")
Petitioner/defendant-appellee David Merkel's
application for writ of certiorari, filed February 4, 2008, is
hereby rejected.
DATED: Honolulu, Hawai'i, February 25, 2008
Taryn R, Tomasa, FOR THE COURT:
Deputy Public Defender,
for petitioner/defendant-
appellee, on the
application chef suatice My
, SEAL 3
on.
on
eS°6
considered by: Moon, C.J., Levin
jon, Nakayama, Acoba, and Duty, 39.
| 981f603d5b84775d8064ab4759539ec4f5aa60b6e38658c77dcf86e8b4b96d51 | 2008-02-25T00:00:00Z |
d326e286-c959-460d-bbd9-0a672ec7d255 | Grindling v. Nouchi | null | null | hawaii | Hawaii Supreme Court | No. 28988
IN THE SUPREME COURT OF THE STATE OF HAWAI'T
ORIGINAL PROCEEDING
(CR. NO. 0771-0533)
EE
ORDER
+ Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the petition for a writ of habeas
corpus filed by petitioner Chris Grindling and the papers in
support, it appears that habeas corpus relief is available to
petitioner in the circuit court and petitioner presents no
special reason for invoking the supreme court’s original
jurisdiction. See ili vs Chang, 57 Haw. 511, 512, 557 P.2d 787,
788 (1976). Therefore,
IT 18 HEREBY ORDERED that the petition for a writ of
habeas corpus is denied without prejudice to seeking habeas
corpus relief in the circuit court.
DATED: Honolulu, Hawai'i, February 22, 2008.
Sessoms
Dect Crees
ams
| c3f552356d7dd7695278308069a57f339ed6f753720595e27268eaf9e3664169 | 2008-02-22T00:00:00Z |
83b106bb-503a-4721-8ea8-d5888208f819 | Cabanting v. Hara | null | 29029 | hawaii | Hawaii Supreme Court | LAW LIBRARY
wo. 29029
IN THE SUPREME COURT OF THE STATE OF HAW
BIENVENIDO C. CABANTING, as Guardian Procheinppimt
of ALEXIS LOKAHI LEHMAN-CABANTING, @ Minor, ib
IG, Petitioners,
2
‘THE HONORABLE GLENN S. HARA, JUDGE OF THE C1]
COURT OF THE THIRD CIRCUIT, STATE OF HAMA:
HYACINTH L. POOUAHE, DEPARTMENT OF EDUCATIO!
STATE OF HAWAT'I, and DEPARTMENT OF HUMAN SERV
STATE OF HAWAI'I, Respondents.
ORIGINAL PROCEEDING
(Giv. NO. 0)-1-0038)
(gy: Moon, C.J., Levinson, Nakayama, Aeoba, and Duffy, 23.)
Upon consideration of the petition for a writ of
mandamus filed by petitioners Bienvenido Cabanting, as Guardian
Prochein Ani of Alexis Lokahi Lehman-Cabanting, a minor, and
Ronnie Cebenting and the papers in support, st appears that the
question of the disqualification of the presiding judge is not a
question that cannot otherwise be reviewed on petitioners’ appeal
trom a final judgment entered in Civil No, 07-1-0038. Therefore,
petitioners are not entitled to extraordinary relief. See Peters
Ye-Janieson, 48 Haw, 247, 257, 397 F.2d $75, $82 (2964) (A writ
of prohibition will Iie to compel the disqualification of trial
Judge where the question of disqualification cannot otherwise be
reviewed.) Kena vs Gaddis, 91 Hawai'i 200, 204, 982 P.2d 934,
298 (1999) (A wedt of mandamus of prohibition 42 an extraordinary
renedy 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
\ded to supersede the
requested action, Such writs are not int
legal discretionary authority of the lower courts, nor are they
normal appellate
intended to serve as legal remedies in lie
procedures.). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, March 12, 2008.
Mim lerinco—
ese Ou
one, ratgiths
| 69cedc4d5b161fe8fe1f3c3bfc271d75833cd815d48a478101540e4b453ae6f2 | 2008-03-12T00:00:00Z |
8e81249b-e60f-448e-8ba5-9d86c721775f | State v. Larkin | null | null | hawaii | Hawaii Supreme Court | No. 27036
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent/Plaintiff-Appellant
SHAUN LARKIN, Petitioner/Defendant-Appellee
SSS
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. O1-1-1825)
ORDER REJECTING REPLICATION FOR WRIT OF CERTIORARI
Duffy, J., for the court)
(By:
Petitioner/Defendant~Appellee Shaun Larkin's
application for a writ of certiorari, filed on February 1, 2008,
is hereby rejected.
DATED: Honolulu, Hawai'i, March 3, 2008.
FOR THE CouRT:
Come, Onaips
Associate Justice
Michael J. Park
for petitioner /defendant-
appellee on the application
22:2 id €- BM GaN
AW
Considered by: Moon, C.J. ayana, Acoba, and Dsffy, 99.
Levinsen,
| 105cf5ef1d32b3c09c5baec77368caca2e50d0c7749cac5ee2ef27adabaf5f12 | 2008-03-03T00:00:00Z |
e7c2793b-7ce8-4d77-af38-239d080ddfc5 | Kato v. Funari. ICA s.d.o., filed 01/29/2008 [pdf], 117 Haw. 52. S.Ct. Order Accepting Application for Writ of Certiorari, filed 04/22/2008 [pdf]. | 118 Haw. 375 | null | hawaii | Hawaii Supreme Court | *** FOR PUBLICATION *** .
in West’s Hawai'i Reports and the Pacific Reporter.
nv auoa
sz
IN THE SUPREME COURT OF THE STATE OF HAWAI'I”
--- 080
IRENE KATO AND RALPH KATO, Petitioners/Plaintiffs-Appellants,
vs
FREDERICK FUNARI, Respondent /Defendant-Appellee,
and
JOHN DOES 1-10; JANE DOBS 1-10; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE NON-PROFIT ENTITIES 1-10; and
DOE GOVERNMENTAL ENTITIES 1-10, Defendants.
No, 27237
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(cIv. NO. 03-1-0215(1))
AUGUST 25, 2008
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JU.
OPINION OF THE COURT BY MOON, C.J
on April 22, 2008, this court accepted a timely
application for a writ of certiorari, filed march 19, 2008, by
petitioner/plaintiff-appellant Irene Kato, requesting this court
review the Intermediate Court of Appeals’ (ICA) February 12, 2008
judgment on appeal, entered pursuant to its January 29, 2008
summary disposition order (S00). Therein, the ICA affirmed the
Circuit Court of the Second Circuit's (1) December 8, 2004
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
judgment* entered in favor of respondent /defendant-appeliee
Frederic Funari after a jury trial and (2) April 12, 2005 amended
order denying Kato’s motion to alter or amend the judgment or, in
the alternative, for a new trial. oral argument was held on
August 7, 2008.
Briefly stated, the instant personal injury case stems
from a motor vehicle accident between Kato and Funari that
occurred on November 2, 2001 in Kahului, on the island of Maui,
Hawai'i. The crux of the case centers around an alleged
Giscrepancy between the jury instructions and the special verdict
form that raised questions regarding the amount of damages
awarded and the effect of the apportionment between Kato’s pre-
existing injuries and the injuries sustained in the November 2,
2001 accident. Kato contends in her application that the trial
court misconstrued the special verdict in Funari’s favor and that
the ICA erred in affirming the trial court's construction.
Based on the plain language of the jury instructions
and the well-settled principle that the jury is presumed to have
followed the instructions, we conclude that the trial court
improperly modified the jury’s verdict. Consequently, we hold
that the ICA erred in affirming the trial court’s judgment.
Accordingly, we vacate the ICA’s February 12, 2008 judgment on
appeal and the trial court’s December 8, 2004 judgment and remand
\ the Honorable Joel #. August presided over the underlying
proceedings
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
this case to the trial court with instructions to enter judgment
consistent with our discussion herein, less any credits or
deductions as allowed by law.
1. BACKGROUND
A. Background Information
on Novenber 2, 2001, Kato was driving on an access road
im Kahului, on the island of Maui, Hawai'i, when her vehicle was
struck by another vehicle driven by Funari. On May 30, 2003,
kato filed a complaint against Funari, alleging that, as a result
of Punari’s negligent operation of his vehicle, she sustained
multiple injuries, suffered mental and emotional distress, and
lost income and earning potential.?
A jury trial commenced on September 27, 2001. During
trial, Kato moved for a directed verdict on the issue of Funari's
negligence. The trial court granted the motion; consequently,
the only issues before the jury related to legal causation,
damages, and the apportionment between Kato’s pre-existing
injuries and the injuries sustained in the subject accident.”
2 kato's husband, Ralph Kato, waa algo a named plaintiff in the in
action, ‘we alleged that Zato's injuries resulted in his loss of consort
However, the jury did not find in his favor, which finding was not appealed,
+ tnaemich ag the transcripts of the jury trial were not made a part of
the record on appeal, it ia unclear what specific evidence was adduced during
Etiei Wowever, we note that, according to the parties’ briefs, evidence at
EEiel conslated of expert testimony regarding the nature and extent of Kato’s
[njuries, as well as the nature and extent to which her injuries vere
ateribucable to conditions that existed prior to the Novesber 2, 2002
Gccident. Specifically, Zato presented evidence that she suffered three
fajuries ae a result of the accident: (1) cervical injury (including
headeches: (2) tenporonandibular disorder (7M4)); and (3) carpal tunnel
(continued.
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
on October 6, 2004 -- without objection from either
party -- the trial court instructed the jury, using the Hawai'i
Standard Civil Jury Instructions, on, inter alia, (1) the
elements of general and special damages, (2) the prohibition
against speculative damages, and (3) apportionment of damages for
pre-existing injuries or conditions, quoted infra. The trial
court also proposed the following special verdict form to be
submitted to the jury for deliberation:
Guestion No, 1. was the negligence of (Funari] =
egal Cause of injury co [kate]? Answer "Yea" or *Nor in
the space provided below:
If you have answered Question No. 1 *¥es,* then go on
to answer Question No. 2. Tf you have answered Question No.
I'sWo,* do not answer any further questions, but sign and
Gate this docment and call the Bailif!
Question No, 2. What were [Kato's] total damages:
Property Danages:
i
Question Noi, Were any of the injuries or pain
suttered by (Hato! after the accident caused by conditions
\ehich existed and vere symptomatic before ene accident?
Kuswer'*Yes" or "No" in the space provided below
5(. continued)
syndrone.”‘Fato claimed that the aforenentioned injuries were one-hundred
percent attributable to the Novenber 2, 2001 accident. Adgitionally, Fato
Presented evidence regarding her lost wages, ‘Conversely, Funarl presented
Gvidence -- via expert medical testimony =- that Kato’s injuries, specifically
her carpai tunnel syndrone, existed prior to the Novenber 2, 200i accident
Pinel Gadstionalty clained that there was ‘evidence and/or’ the inference
could (have) been made by che Jury [Kato] had not been forthcoming
fe rcoutsel in Siscovery, “che (erial ejoure and fury at trial, and her own
physicians about her various prior medical conditions.
*** FOR PUBLICATION ***
in West’s Hawai'i Reports and the Pacific Reporter
Ié you have answered Question Wo. 3 Yes," then go on
so answer Question lio. 4. if you have answered Question No
Soo," goon Eo answer Question No. 5.
Question Nov 4.(‘] state what percentage of the
injuries or pain sufvered by [Kato] after the accident were
caused by conditions which exteted and were symptomatic
before the accidest
Kato, however, objected to Question Nos. 3 and 4 dealing with the
apportionnent of injuries. specifically, Kato argued that the
tions were vague and would “be confusing,
apportionnent qu.
misleading and possibly prejudicial to (her).* The trial court
rejected Kato’s argunent, stating that ‘the jury instructions
which we have developed and the verdict form meet the
which have
requirements of the law and respond[] to the issu
been raised in this case{.]* Consequently, the trial court
submitted the special verdict form to the jury over the
objections of Kato.
on October 7, 2004, the jury returned a verdict in
favor of Kato. With respect to Question No. 1 on the special
verdict form, the jury determined that Funari was the legal cause
of Kato’s injuries. As such, in Question No. 2, the jury found
4 the special verdict form included two additional questions relating
zo Ralph Rato's claim for loss of consortium, which are not at issue be:
*** FOR PUBLICATION ***
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Kato’s “total damages" amounted to $59,536.55.? Additionally,
the jury answered Question Nos. 3 and 4 as follows:
Question No.2. Were any of the injuries or pain
suffered by (rato! after the accident caused by conditions
(hich existed and were symptomatic before the accident?
Answer "Yes" or *lio" in the space provided below
yes: x No
If you have answered Question Wo. 3 *Yes,* then go on to
answer Question No. 4. If you have answered Question No. 3
‘tio, go en to answer Question No. 5.
Question No, 4. State what percentage of the injuries
or pain suffered by [Kato] after the accident were caused by
Conditions which existed and were symptomatic before the
accident:
a
Thereafter, counsel for Kato and Funari met with eight
of the jury members, According to Kato’s counsel,
the jurors were unanimous in telling us that the amounts
that’ they had written in Question sto. 2 were already reduced
by their apportionment anal ‘The jury was completely
Confused and did not understand why they were being asked
Question No, 3 and Question No. 4.” They had no idea that
the amounts ‘that they had awarded in Question to. 2 would be
further reduced by the percentage they put in Question No.
ato, therefore, moved for an in-court examination of the
Gischarged jurors, pursuant to Hawai'i Rules of Professional
Conduct (HRPC) Rule 3.5(e) (4) (ii) (2007), arguing that there
were grounds for a "legal challenge to the verdict and that an
> specifically, the jury provided a breakdow of the danages as
follows:
Property Danages $1,492.66
Eoat income 3 9/606.95
Past Medical Bpenses: § 23,436.94
Future Medical Expenses: $ "0.00
General Damages: § 25,000.00
© nmpe mule 3.5(e) (4) (11) states in relevant part that, *[ulpon leave
of the court for good cause shown, a lawyer who believes there are grounds for
Tegal challenge to a verdict nay conduct an in-court examination of jurors oF
former Jurors to determine whether the verdict is subject to challenge."
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in-court examination of the discharged jurors [was] necessary.”
The trial court denied Kato’s motion, reasoning that Keto's
sproposed examination [was] not meant to determine objective
juror misconduct, but to determine their mental process or
intentions in arriving at their answers to the special verdict."
Prior to the entry of judgment, the trial court
instructed each party to submit a proposed judgment, taking into
account each party’s interpretation of the jury's verdict and the
application of the covered loss deductible law, Hawai'i Revised
Statutes (HRS) § 431:10C-301.5 (2005),” because Kato had
previously received more than $20,000.00 in personal injury
protection benefits, Kato proposed that judgment should be
entered in her favor in the amount of $49,536.55, which was
calculated by subtracting the maximum statutory covered loss
deductible ($10,000.00) from the jury's damage award of
$59,536.55. Funari, on the other hand, proposed that the jury's
damage award, except for the property danage amount, be reduced
by ninety percent pursuant to the jury’s finding in Question
7 uns § 431:100-301.5 states that:
covered loss deductible. hen 2 person effects a
recovery for bodily Injury, whether by suit, arbitration, or
Settlenent, and it i determined that the person is entitled
fo recover darages, the judgnent, settienent, or award shail
be reduces by $5,000 of the-anouit of personal iniun
ERit. the covered loss deductibie shall not
include benefite paid or incurred under any optional
additione! coverage or benefits paid under any public
Sesistance program.
(emphasis in original.) HRS § 431:10C-103 (2005) defines the *naximun Limit”
as. $10,000.00 per person.
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No.
ise., that ninety percent of Kato’s injuries or pain
existed prior to the November 2, 2001 accident
A hearing was held on November 4, 2004, wherein the
parties presented their above positions as to the form of
judgment that should be entered in the case. The trial court
agreed with Funari and reasoned that:
According to [Kato], as the [trial] court understands
(her) position, the $59,536.55 represented the partion of
Ganages that the Sury attributed to (Funari] after taking
{nto account apportionment. But if that were the case
s= you know, if'you extend the logic to that reasosing, the
jury in fact then would have determined the award without
apportionnent to be approximately $585,365.50,
In other words, assuming ~~ if you take that logic and
june that (one hundred) percent of her problems were
Felated to the accidest, you then would get almost a
$600,000 award, which, quite frankly, is an award chat te
Rot supported by any evidence in this case.
‘Thereafter, on December 8, 2004, the trial court entered its
judgment, wherein it expressly stated:
Pursuant to the [s)pecial [vlerdict of October 7, 2004, the
Jury apportioned ninety pervent (908) of [kato’s] injuries
or pain, post accident to conditions that existed and were
Sympronatic before the accident, thereby reducing the
azounts avarded her for lost inGome, past medical expens
Sud general damages to $5,806.39.
‘he trial court further reduced Kato’s award by the maximum
allowable limit of $10,000.00, pursuant to HRS § 431:10C-301.5,
resulting in its conclusion that "$0 [was] owed (Kato) for bodily
injury."
Additionally, because the instant case had previously
been admitted in the Court Annexed Arbitration Program (CAAP),*
the trial court entertained, and granted, Funari’s request for
+ According to Fumart, Kato was awarded $168,046.79, inclusive of
costs, in the arbitration proceeding
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costs as the prevailing party, pursuant to Hawai'i Arbitration
Rules (HAR) Rule 25 (2007),* in the amount of $9,460.62.
Inasmuch as Funari renained liable to Kato for the property
Gamage award of $1,492.66, the trial court reduced the costs by
said amount. Accordingly, judgnent was entered on Decenber 8,
2004 in favor of Funari and against Kato in the amount of
$7,967.92."
» a
alternative, For a New Tria
on December 16, 2004, Kato moved to alter or amend the
judgment or, in the alternative, for a new trial (hereinafter,
the motion to amend], pursuant to ERCP Rule 59 (2007)," arguing
that the trial court’s apportionment of the jury’s special
+ HAR Rule 25 provid
() the “Prevailing Parev* in a trial de novo is the
party who ()
Beard by 308 of mera, or (2) aid not appeal and the
Sppeeling party failed to improve upon the arbitration award
by 308 of pore. For the purpose of this rule, “ixprove" oF
“Inproves* means to. increase the svara for a plaintiff or to
Gecrease the award for the defendant.
(B) The "Prevailing party" under these rules, as
Getined above, ie deened the prevailing party under azy
Stature or rule of court. Ae auch, the prevailing party is
entitled to costs of trial and all other renedies as
provided by law, unless the [clourt otherwise directs
(emphanes added.)
% we note that $9,460.62 minus $1,492.65 equals $7,967.96, not
$7,967.92
MRCP mule 59(a) states in relevant part:
A new trial may be granted to all or any of the
parties and on all or part of the issues Gn an action
Tniwhich there has been a trial by jury, for any of the
Feapons for wilch new triala have heretofore been granted in
actions at law in the courts of the state(.)
os
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verdict in its December 8, 2004 judoment was improper because
“the jury did consider apportionment and did limit [its] award to
[Kato] accordingly.’ Kato further contended that, inasmuch as
the jury apportioned its damages award, the ‘act of the [trial
clourt in applying a second apportionnent to the jury verdict was
error and was also not supported by the evidence that was
presented at trial."
In response, Funari contended that the motion to amend
was Kato’s attempt to take ‘another bite at the apple” when, in
fact, the trial court had correctly rejected Kato’s "argument
[as] not supported by the evidence and . . . illogical because
the jury [could not have] intended to award $580,439.90 {without
apportionment], which exceed{ed) the amount (Kato) claimed” at
trial. Punari also disputed Kato’s reliance on certain cases
and, additionally, maintained that, had Kato’s counsel believed
the special verdict form was misleading, her counsel should have
clarified any confusion about the form during closing arguments.
on April 12, 2005, the trial court denied the motion to amend.
‘Thereafter, on April 13, 2005, Kato filed her notice of appeal
C. Appeal Before the ICA
On direct appeal, Kato essentially challenged the trial
court's reduction of the jury’s award of $59,536.55 in damages by
ninety percent. Kato contended that, based upon the jury
instructions and the special verdict form, the amount of
$59,536.55 represented a post-apportionnent, not a
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pre-apportioned award, as the trial court found. In response,
Funari maintained that the trial court properly entered judgment
in his favor.
on January 29, 2008, the TCA issued its Spo, rejecting
Kato’s arguments and affirming the trial court’s (1) December 8,
2004 judgment and (2) April 12, 2005 denial of the motion to
amend. specifically, the ICA held that there was no
inconsistency between the jury instructions and the special
verdict because, *[tJaking both the instructions and
interrogatories as a whole, they adequately informed the jury
regarding the determination of the percentage of injuries or pain
attributable to a pre-existing condition.” SD0 at 2. Moreover,
the ICA reasoned that
© tn go arguing, Fimari relied primarily on the trial court's
reasoning, quoted gupra, that the evidence at trial did not support a verdict
Sf approximately $€00-000.00 inasmuch az kato did not even ask fer that apount
Sf damages at trial. Tn so doing, Funari argued,
the jury was rot confused or mislead [sic] in arriving at
{Ste} response to (Q)uestion [No.] 2 of the special verdict
form as supported by the verdict itself. wad the Jury done
fo, the Jury would have reduced [Fato's] total danages by
50h, the percentage [st] affixed. Specifically, che Jury
warded £9,906.95 in lost income, which is not 908 of what
kato) sought and instead corresponds to tha sonthly salary
of (Kato) multiplied by the length of recovery period that
fone expert) opined. ‘The jury also exarded (Kato) $0 in
future medical expenses, sot 30t of what (Kato)
ough Noreover, he jury awarded $23,436.94 in past
Bedical expenses, which does aot correspond to a S0%
apportionzent of [kato] ‘s claimed past medical expenses
Similarly, the $25,000 in general danages awarded by the
Sury, in to way corresponds +0 4 90% apportioumen: of the
General damages sought.
However, aa previously noted, no transcripts of the jury trial are contained
TO"ihe kecora, ahue, the specific evidence upon waieh Funari relies cannot be
Feviewed in light of the current state of the record on appeal
cae
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tthe (trial) court's judgment was in conformity with the
jury's opecial verdict. ‘The Jury was inatructed that it
mast answer the special [verdict questions] in murerical
Order. [Question] No. 2 asked the Jury for the "tote!
Ganages’ suffered by [kate] before being askes, in
Question] No. 3 to decide whether her injuries or pain were
attributable to a pre-existing condition and, in (Question!
No. 4, what proportion of her injuries or pain war
ributable to that pre-existing condition. Presuning, as
wwe must, that the jury followed the (erial] ‘court's
Snetructions, the totals entered in response to. (Question)
No. 2 were preapportionnent total. the [triel] court's
Sudonent reflected these totale rediced by the jury's
Gecteion on apportionsent and waa consistent with the Jury's
veraice
$00 at 2-3. Kato timely filed her application for a writ of
certiorari on March 19, 2008. As previously stated, this court
accepted Kato’s application on April 22, 2008 and heard oral
argument on August 7, 2008
II. STANDARDS OF REVIEW
A. Special Verdict
A trial court bas complete discretion whether to
utilize a special or general verdict and to decide on the
form of the verdict as wel! as the interrogatories subsitted
to the Jury provided that che questions asked are adequate
to obtain a Jury determination of all factual issues
essential to judgsent. Although there ie complete
Giscretion over the type of verdict form, the questions
thenselves may be 30 defective that they constitute
Feversibie error
Gonsalves v. Nissan Motor Corp, in Hawai‘i, Ltd., 100 Hawai'i 149,
158, 58 P.3d 1196, 1205 (2002) (citations and internal quotation
marks omitted) (format altered).
5. Motion to Alter or Amend Judanent, or in the
AL ive
“This court reviews a [trial] court’s decision to grant
a motion to alter a judgment pursuant to HRCP Rule 59(e) for
abuse of discretion." Roxas v. Marcos, 89 Hawai'i 91, 115, 969
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P.2d 1209, 1233 (1998) (citation omitted). Likewise, “the denial
of a motion for new trial is within the trial court's discretion,
and we will not reverse that decision absent a clear abuse of
discretion." Miyamoto v. Lum, 104 Hawai'i 1, 6, 84 P.3d 509, 51a
(2004) (citations and internal quotation marks omitted). “An
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." qTakavama v, Kaiser Found, Hosp,, 82 Hawai'i 486, 495,
923 P.2d 903, 912 (1996) (citation omitted) (format altered).
TIX. PESCUSSION
As previously stated, Kato contends that the ICA erred
in affirming the trial court’s (1) December 8, 2004 judgment and
(2) April 12, 2005 denial of Kato’s motion to amend. Kato
primarily argues that the trial court erred in reducing the
jury’s damages award of $59,536.55 by ninety percent inasmuch as
the jury had already apportioned the award to account for Kato’s
pre-existing injuries and pain. In support of her argument, Kato
relies on a reading of the special verdict form in conjunction
with the jury instructions, as discussed infra. Additionally,
kato contends that Question Nos. 3 and 4 did not represent a
correct statement of the law of apportionment under Montalvo v.
Lapez, 77 Hawai'i 282, 884 P.2d 345 (1994).
We begin our discussion with the well-settled principle
in this jurisdiction that “the proper amount of damages (to be
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awarded] . . . is within the exclusive province of the jury,
since jurors are the sole judges of all disputed questions of
fact." Knodle v, Waikiki Gateway Hotel, inc., 69 Haw. 376, 385
742 P.24 377, 383 (1987) (citation, internal quotation marks, and
original brackets omitted) .
hon, as here, the trial court *require(s] a jury to return
ely’ special verdict in the form of a special written
Hinding upon each issue of fact,” HRCP [Rute] 49(a)
{20071} compels the Judge to *give to the Jury such
explanation and instruction concerning the matcer thus
Submitted as may be necessary to enable the jury to nuke its
Findings upen each issue
Id. at 383, 742 P.2d at 382 (some brackets in original and some
added) (footnote omitted). Put another way,
che [trial court) should explain the law of the case, point
out the essentials to be proved on one side or the other,
and bring into view the relation of the particular evidence
‘Saduced to the particular issues involved. and ail of thi
must_be done in guch a manner that the iuiy will not be
Eisies
Id. at 384, 742 P.2d at 382-83 (emphasis added) (citations,
internal quotation marks, ellipses, and original brackets
omitted). we have also stated that, *[iJn analyzing alleged
errors in special verdict forms, the instructions and the
interrogatories on the verdict form are considered as a whole."
% RCP Rule 49(a) provides in relevant part:
‘The court may require a jury to return only @ special
verdict in the form of a special written finding upon each
Yenue of fact. In that event the court may submit to the
jury written questions susceptible of categorical or other
brief anower cr may submit written forms of the several
special findings which might properly be rade under the
Pleadings and evidence; or it nay use such other method of
bubmitting the issues and requiring the written findings
thereon as it deens most appropriate. The court shall give
to the Jury euch explanation and instruction concerning the
matter thus submitted as say be necessary to enable the Jury
to make its findings upon each issue.
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Gonsalves, 100 Hawai'i at 158, 58 P.3d at 1205 (quoting Yontalvo,
77 Hawai'i at 292, 884 P.24 at 355) (emphasis added) (format
altered). voreover,
[als a rule, juries are presumed to be reasonable and follow
Gil'ot the trial court's instructions. This rule represents
2 reasonable practical accamedation of the i
parties involved Therefore,
© : u foal
‘puosssd_to another’. 1
Mevers v. South Seas Corp., 76 Hawai'i 161, 165, 871 P.2a 1231,
1235 (1994) (emphases added) (citations, original brackets, and
some internal quotation marks omitted). Searing the foregoing
principles in mind, we first examine the jury instructions, as
well as the special verdict form, as given to the jury in the
instant case.
with regard to (1) the elements of general and special
damages, (2) the prohibition on speculative damages, and
(3) apportionment of danages for pre-existing injuries or
conditions, the trial court properly instructed the jury, using
the Hawai'i Standard Civil Jury Instructions, as follows:
Inseruetion No. 26
TE you find that (Kato) suffered injuries as ar
of the actident, [kato] ig entitled to dazages in such
amount as in your judgment will fairly and adequately
compensate her for the injuries which she suffered. Zn
Seciding the amount’ of such cenages, you should consider
‘the extent and nature of the injuries she
Tecelved, and also the extent to which, if at
Gil, the injuries she received are permanent;
2, “The reasonable velue of the medical services
provised by physicians, hospitals and other
fealth care provisers, including examinations,
attention and care, dfuge, supplies, and
reasonably required and
Sn the treatment of [kato] and
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services reasonably probable to be required in
he treatsent of (Kato) in the future
3. The pain, emotional suffering, and disability
which she has suffered and is reasonably
probable to suffer in the future because of the
injuries, if anys and
4, The lost’ incone fustained by (Kato) in the past
and the lost. incone she is reasonably probable
fo sustain in the future
Instruction No. 30
Compensation mist be reasonable. You may award only
such damages as will fairly and reasonably compensate [Kato]
for the injuries or danages legally caused by [Punari}'s
negLigence.
You are not permitted to award @ party speculative
Ganages, which means compensation for loss or harm which,
although possible, is conjectural or not reasonably
Drobable,
instruction to, 31
In determining the amount of damages, if any, to Be
awarded to (Kato) you ust determine whether [Kate] had an
Snjury or condition which existed prior to the NOVEMBER 2
2001 incident. if wo, you mist determine whether [kato]. was
Fully recovered from the pre-existing injury or condition oF
khether the pre-existing injury or condition was latent at
the tine of the subject dncident, A prevexieting injury or
condition is latent if it war not causing pain, suffering or
Gisability at the tine of the subject incident
Ef you find chat [Kato] wa fully recovered from the
pre-existing injury or condition or that such injury or
Condition vas latent at the time of the subject incident,
‘then you should not apportion any damages to the pre-
existing injury or condition
If you find that [Kato] was not fully recovered and
that che pre-existing injury or condition was not latent
the time Sf the subject incident, you ahowd make an
apportionsent of damages by determining what portion of the
Gunages is attributable to the pre-existing injury oF
condition and
‘to the injury caused by (Funari]
If you are unable to determine, by a preponderance of
the evidence, what portion of damages can be attributable £0
the pre-exiating injury or condition, you nay make a rough
apportionment.
1f you are unable to make a rough apportionment, then
you mist divide the danages equally between the pre-existing
Injury or condition and the injury caused by detendanc.
(Emphases added.)
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the jury was provided with a written copy of all the
instructions, including the above instructions, along with the
special verdict form, Additionally, the jury was instructed that
it must answer the special verdict questions in numerical order.
Seq ICA's S00 at 2-3, As previously stated, the jury answered
syes* to Question No. 1 regarding legal causation, provided an
itemized award of damages in answer to Question No. 2, see supra
note 5. In analyzing the jury’s response to Questions Nos. 3 and
4, quoted supra, the trial court determined that the jury found
Kato had a symptomatic pre-existing condition, which accounted
for ninety percent of her post-accident injuries and pain.
Relying upon the jury instructions and the special
verdict form, Kato argues that "the ICA was . . . clearly
mistaken when [it] wrote in {its SD] that the damages awarded by
the jury ‘were pre-apportionnent totals.'* Specifically, Kato
contends, as she did on direct appeal, that
2 4a undisputed that the [trial) court instructed the
Jury to consider the issue of appertionnent, to reduce
Ganges if [it] found thet apportionrent applied to limit
{ite! award only to the danages attritutable to the injury
Caused by Funari. ‘The state of the record is that the jury
Sid consider apportionment and did linit [its] awerd to
irate) accordingly. there is no evidence or indication that
the jury misinterpreted or failed to apply the (trial)
Court's instruction to (it)
(emphasis in original.)
Funari, however, argued in his answering brief that the
trial court’s judgment was not in error because
[kato] 's arguments germinate from speculation that there was
a teecond apportionment’ by the trial coure because the Jury
had already apportioned damages in arriving at [Fato]’s
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Gamages in response to [Q]uestion (No.] 2 of the special
verdict form, There ig no evidence(,| however, of a “firs
apportionsent in arriving at the avard of [kato] "e damages
£2 (Qluestion No. 2 of the special verdict for,
Given the absence of any evidence of a “tire
apportionsent, (kate) asks this court to speculate chat the
FY considered and utilised (Jury! Instruction No(s. 26,
30, and 31), simultaneouely in arriving at an award of
Ganages to {gluestion (NJo. 2 of the special verdict form.
‘There 1s no evidence, nor any viable inference the jury
considered and utilized all three instructions in afnewering
TOlueastion {Wlo. 2 of the special verdict form, and to eo
assert a6 [Kato] does, ie sinply speculation.
(Emphasis in original.)
Here, the jury was specifically instructed that it
‘must follow all the instructions given” and ‘must not single out
some instructions and ignore others." See Jury Instruction
No. 1; see also Mevers, 76 Hawai'i at 165, 971 P.2d at 1235
(holding that it is not a permissible *‘inference,’ . . . that
the jury followed one instruction as opposed to another). with
regard to the apportionment of damages, the jury was instructed
in Jury Instruction No. 30 that it should “award such damages as
will fairly and reasonably compensate [Kato] for the injuries or
damages legally caused by {Funari‘s] negligence" and, in Jury
Instruction No. 31, to "Limit [its] award to the damages
attributable to the injury caused by [Punaril.
added.) Question No. 2 on the special verdict form asked the
jury simply ‘what were [Kato’s) total damages." (Emphasis
added.) However, the phrase “total damages" was not defined in
(2mphases
the jury instructions nor on the special verdict form. assuming
as we must -- that the jury followed Jury Instructions Nos. 30
and 31, the ‘totals amount of damages awarded by the jury in
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See
response to Question No. 2 were those damages solely and totally
attributable to the injuries or damages sustained by Kato as 4
result of the November 2, 2001 accident. Therefore, we hold that
‘in view of the instructions to the jury" -~ the jury
‘clear {1y] and unambiguous[ly]," Diaz v, Vanek, 67 Haw. 114, 117,
679 P.24 133, 135 (1984), awarded Kato $59,536.55 in damages,
which damages represented post-apportionment amounts, i.e., were
siimit(ed) . . . to the damages attributable to the injury caused
by (Funari],* as it was instructed to do pursuant to Instruction
No. 31, Consequently, the trial court’s reduction of the jury's
award of $59,536.55 by ninety percent to "satisfy the supposed
equities of the case," id, at 117, 679 P.2d at 135 (citation and
internal quotation marks omitted), was, in our view, an improper
modification of the special verdict. Were this court to hold
otherwise and agree with the ICA that the trial court correctly
reduced the jury's dazages award, we would have to presume that
the jury believed, notwithstanding the instructions to the
contrary, that the term *total damages* included both the pre-
existing conditions and post-accident injuries. Such a
presumption would be contrary to the principle that the jurors
followed the law as was given to them and were guided by the
plain language of Jury Instruction No. 30 ("award only such
damages as will fairly and reasonable compensate [Kato] for the
injuries or damages legally caused by [Funari]’s negligence") and
Sury Instruction No. 31 (*Limit your award to the damages
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attributable to the injury caused by [Funari]*). as previously
stated, such a presumption is impermissible and contrary to our
case law. Meyers, 76 Hawai'i at 165, 871 P.2d at 1235, Thus, we
hold that the ICA erred in affirming the trial court’s Decenber
8, 2004 judgment.
on application, Kato additionally contends that
Question Nos. 3 and 4, quoted supra, incorrectly stated the law
of apportionment.'* However, based on our holding that the
jury’s answer to Question No. 2 represented a post-apportionment
amount of damages, we conclude that the apportionment questions
(Gse., Question Nos. 3 and 4) were irrelevant and unnecessarily
posed to the jury. We, therefore, hold that Question Nos. 3 and
4 should not have been included on the special verdict form.
Accordingly, we need not address Kato’s remaining contentions.
™ ‘with regard to Question tio. 3, Kato‘s argument centers around
whether Question fo. 3, which asked “the jury to determine percentages based
on ‘conditions which existed and were symptomatic hafara the accident ®
Adoquately directed the jury's consideration to conditions that existed and
Were symptonatic imediately before the accident, sz the Yontalye (clourt had
Gone. with regard to Question No. 4, Kato aubmite that?
Question (o.] 4 did not ask the Jury to determine the
ercentage of damages that were caused by pre(-Jexisting
conditions; instead, it asked the jury to deternine the
‘percentages of the iniuries or pain suffered by (Kato)
after che accident that were caused by conditions which
existed and were symptomatic before the accident. The
Jurors were ot instructed, and would have no basis for
Eonciuding, that the terns "injuries or pain” were intended
by the [trial] court to be synonymous to or coextensive with
the defined term “danages,” or thet those terms included all
the elements of dazages set forth in (Jury) Instruction
Nos 26
(Bephases in original.)
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OO
We emphasize, however, that our holding today should
not be read as a blanket prohibition against the inclusion of
apportionment questions relating to pre-existing injuries on
special verdict forms. Our holding is limited to the
circumstances where the standard Montalvo instruction
(instruction No, 31 in this case) is given to the jury, ie., the
jury is instructed to limit its award of damages to those damages
attributable solely to the defendant’s negligence. In such
circumstances, apportionment questions are unnecessary and,
therefore, improper because it is presumed that the jury will
follow the plain language of the Montalvo instruction and
indicate its apportioned-award of damages on the special verdict
form. In other words, when using the Hawai'i Standard Civil Jury
instructions regarding apportionment, the inclusion of
apportionment questions on the special verdict form is
unnecessary. However, if apportionment questions are to be
included on the special verdict form, the jury instructions mist
be consistent with the questions asked and must clearly apprise
the jury of the specific findings it is being asked to make.
qv. CONCLUSION
Based on the foregoing, we hold that -- in view of the
instructions to the jury
the jury clearly and unambiguously
awarded Kato $59,536.55 in damages, which damages represented
post-apportionnent amounts, i.e., were “limitfed) . . . to the
damages caused by [Funari].* Accordingly, we vacate the ICA's
-21-
*** FOR PUBLICATION ***
in West's Hawai'i Reports and the Pacific Reporter
February 12, 2008 judgment on appeal and the trial court’s
December 8, 2004 judgment and remand this case to the trial court
with instructions to enter judgment for $59,536.55, less any
credits or deductions as allowed by law.**
Stuart M. Kodish (zan b.
the appiication), for .
petitioner/plaintsfe- BiccDRladrrnre—
appellant irene Fato ‘
Randall Y. Kaya (Dean E. ae 1a
Ochiai, Brenda =. Morris,
and Adrian Y. Chang, with aan
him on the response) , for
respondent /defendant- Yone. Quaith-
appellee Frederick Funari ~ he
As previously stated, che trial court awarded Finari costs ae the
prevailing party pursuant to HAR Rule 25, go@ supra note 9, and applied the
sutory covered loss deductible, pursuant to aks § 431;10C-301,, ase GBA
7. We leave the natter of cvedite and deductions to the trial seme ee
Fesolve on renand in light of our opinion
-22-
| 9086bc525bc7a686e4f56e511b22152f1c0d35f4789d2c21550ddf9932da5c8c | 2008-08-25T00:00:00Z |
b05a6a25-2f6e-4256-8b94-16b28164963c | State v. Shannon | null | null | hawaii | Hawaii Supreme Court | No. 27919
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
STATE OF HAWAI'I, Petitioner-Appellee,
ERIC SHANNON, Respondent-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPI
(HPD CRIMINAL NO. 04447936)
ORDER ACCEPTING APPLICATION POR WRIT OF CERTIORARI
Wy: Nakayama, J., for the court’)
Petitioner-Appellee’s Application for Writ of
Certiorari filed on January 14, 2008, is hereby accepted.
DATED: Honolulu, Hawai'i, February 22, 2008.
FOR THE COUR!
b,
Associate Justice
Anne K. Clarkin,
Deputy Prosecuting Attorney,
for petitioner-appellee
on the application
“considered by: Moon, C.J., Levinson, Nakayana,
eta ON
“hte ave
Acoba and putty, 39.
a3ns
| 98819d9077f63362b48572eb05997c29a6f7941c41a3149067dc197c4f2b4a32 | 2008-02-22T00:00:00Z |
50f09496-fe49-49f0-a83a-99e150b99c3d | Porter v. Hu | 117 Haw. 321 | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
NOS. 26438 and 26602
IN THE SUPREME COURT OF THE STATE OF HAMAT'T,.
ors
GAY FORTER, SUNIE ABE as Personal Representative of:MotoyomRi
Abe, HARK RODRIGUES, GLENN SANTOS, and’ DUANE. SULEARR, cf
Respondents/Plaintiffe/Counterclain Defendants /Appel lees
JOSEPH HU, WAYNE WEHR, WILLIAM P. SCHNITZER, MICHELE CLARK,
AMERICAN INSURANCE AGENCY, and SERVCO PACIFIC, INC.,
Petit ioners/Defendants/Counterclaimants/Appellants
ee
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(c1V. NO. 01-1-0490)
(Sy: Duffy, J., for the court)
Petitioners/Defendants/Counterclaimants/Appellants
Joseph Hu, Wayne Wehr, William F. Schnitzer, Michele Clark,
American Insurance Agency, and Serveo Pacific, Inc.'s
application for a writ of certiorari, filed on January 22, 2008,
is hereby rejected.
DATED: Honolulu, Hawai'i, March 3, 2008.
FOR THE COURT:
Kone, Loblys to
Associate Justice
Margery Bronster and
Rex Yoshio Fujichaku
(Btonster & Hoshibata)
and Feter Van Name Esser
for petitioners/defendants/
counterclaizants/appellants
on the application
"Consicered by: Moon, C.J., Levinecn, Nakayama, Accba, end Duffy, 99.
| aeb5c3bc55f5c873a1fe0fb3461cf303423fe8d616be0911b8bc5c374566efc2 | 2008-03-03T00:00:00Z |
9a20771c-1a94-4ae6-beb8-596db3926ade | Na Moku Aupuni O Koolau Hui v. Thielen | null | 28970 | hawaii | Hawaii Supreme Court | Wo, 28970
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
NA MOKU AUPUNI 0 KO'OLAU HUI, BEATRICE KEKAHUNA;
and MARJORIE WALLET, ‘Petitioners, =
LAURA H. THIELEN, in her official capacity as Interim
Chaitperson of the Commission on Water Resource
Management and Interim Chairperson of the Department
of Land and Natural Resources; CHIYOME L. FUKINO,
MEREDITH J. CHING, JAMES A. FRAZIER, NEAL S. FUJIWARA,
DONNA FAY K. ‘KIYOSAKI, and LAWRENCE H. MIIKE,
in their official capacities as members of the
Commission on Water Resource Management; and
KEN KAWAHARA, in his official capacity 2s the
Deputy Director for the Commission on Water
Resource Management, Respondents.
ORIGINAL PROCEEDING
(ay: Moon, €.J., Levinson, Nakayama, Acoba, and Dufty, oJ.)
Upon consideration of the petition for a writ of
mandamus filed by petitioners Na Moki Aupuni 0 Ko'olau Hu,
Beatrice Kekahuna and Marjorie Wallet, and the papers in support,
4 appears that petitioners consented to the three-year USGS
study on the May 24, 2001 petitions and thereby waived the 180-
day provision of HRS § 1740-712) (B) (1993).
1t further appears that the Commission on Water
Resource Management’s (the Comission) purported duty =~ under
other authorities cited by petitioners -- to timely resolve the
May 24, 2001 petitions is not a ministerial duty inasmuch the
cited authorities do not prescribe and define the duty with
precision and certainty as to leave nothing to the exercise of
discretion or judgment. See Sallina v, Moon, 76 Hawai't 273, 274
1.3, 874 P.2d 1098, 1099 n.3 (1994).
oats
It finally appears that the matter of the burden of
proof on the May 24, 2001 petitions is reviewable on judicial
review of a final decision on the May 24, 2001 petitions and
petitioners fail to demonstrate that the Commission has refused
to and will not render a final decision on the petitions.
Therefore, petitioners are not entitled to mandamus relief. See
Koma v. Gaddis, 91 Hawai'i 200, 204, 962 P.2d 334, 338 (1999) (A
writ of mandamus is an extraordinary remedy that will not issue
unless the petitioner demonstrates a clear and indisputable right
to relief and 2 lack of alternative means to redress adequately
the alleged wrong or obtain the requested action.); In Re
Disciplinary Bd. of the Hawaii Supreme Court, 91 Hawai'i 363,
368, 984 P.2d 688, 693 (1999) (Mandamus relief is available to
compel an official to perform a duty allegedly owed to an
individual only if the individual's claim is clear and certain,
the official's duty 1s ministerial and so plainly prescribed as
to be free from doubt, and no other remedy is available).
Accordingly,
IT 18 HEREBY ORDERED that the petition for a writ of
nandanus is denied.
paret
Honolulu, Hawai'i, February 19, 2008
SRM eceeneen—
\ .
Peseces COT capden youre
&. Dokigs
| c352974bc0331c8fa84b00be790883bae0fb9e5287d3ef8ec8ef9171ac5f6574 | 2008-02-19T00:00:00Z |
aca2d31d-b27b-4f0b-a357-0d9042a6d5a2 | Peroutka v. Cronin. | 117 Haw. 323 | null | hawaii | Hawaii Supreme Court | LAW UBRAF
‘+8 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MICHAEL A. PEROUTKA, CHUCK BALDWIN, and DAVID P. PORTER,
Appellants-Appellants,
KEVIN B, CRONIN', Chief Election Officer, State of Hawai'i,
Appellee-Appellee.
(CTV, No, 04-1-1904)
RALPH NADER, PETER MIGUEL CAMEJO, and ROBERT H. STIVER,
Appellants
KEVIN B. CRONIN, Chief Blection Officer, State of Hawai‘ii
(crv. NO, 4-1-1905)
NO. 27233 =
Be oS 2
ABPEAL FROM THE FIRST cracurr corr = SEE
(G2. Nos. 04=1"1904 and O4-1-1908) Heo. OG
Bio: os
wanci 27, 2008 Fale
3
MOON, C.J., LEVINSON, NAKAYAMA, AND DUFFY,
AND CIRCUIT JUDGE ALM, IN PLACE OF ACOBA, J., RECUSED
&
OPINION OF THE COURT BY NAKAYAMA, J.
Appellants Michael A. Peroutka, Chuck Baldwin
("Peroutka/Baldwin”), David P. Porter (“Porter”), and Ralph
Nader, Peter Miguel Camejo ("Nader/Camejo”), and Robert H. Stiver
Pursuant to Hawai" Rules of Appellate Procedure (*HRAP") Rule
43(c)_ (2008), Revin B, Cronin hae been substituted as a party to the instant
appeal in place of Ovayne D. Yoshina, in his official capacity.
++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
(stiver”) (collectively, “Appellants”), appeal from the first
circuit court's April 5, 2005 final judgments in favor of
Appellee, Kevin B. Cronin ("Chief Election Officer”).? The
instant case is a consolidated secondary appeal from the circuit
court’s April 5, 2005 judgments affirming the decisions of the
Chief Election Officer. On appeal, Appellants present the
following points of error: (1) the circuit court erred in
determining that the procedures used in verifying signatures on
Appellants nomination petitions are not unconstitutional; (2) the
circuit court erred in determining that the review of Appellants’
petitions by the Chief Election Officer was not arbitrary or
capricious; and (3) the circuit court erred in determining that
Appellants were provided a fair administrative hearing. For the
reasons that follow, we affirm the circuit court's April 5, 2005
final judgments.
1. BACKGROUND
on Septenber 3, 2004, Peroutka/Baldwin and Nader/Camejo
filed petitions with the Office of Elections to place their nanes
dential ballot as president/vice president. on
September 20, 2004, the Office of Elections issued a letter
on Hawaii's pri
informing Appellants that they had failed to garner the requisite
number of signatures necessary for inclusion on the presidential
ballot. In proofing its calculations, the Office of Elections
discovered that the numbers initially released needed to be
revised. On September 24, 2004, the Office of Elections informed
Appellants of its revised calculations.
+ the Honorable Sabrina S. McKenna presided.
2
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
on September 23, 2004, Nader/Camejo filed a written
equest for a hearing, which began on September 29, 2004. Over
the objection of Nader/Camejo, the Chief Election officer
presided over the hearing. Prior to the completion of the
hearing, the parties reached a settlement. The terms of the
settlement were as follows: (1) invalid signatures would be
reviewed in the presence of 2 Nader/Camejo representative, who
would be allowed to flag those signatures as to which the
representative disputed the findings of the Office of Elections;
(2) the flagged signatures vould be reviewed by the Chief
Election Officer, whose decision on whether or not to count the
signatory “shall be final”; and (3) Nader/Camejo retained only
the right to “challenge those Hawaii statutory or administrative
rules that exceed those that are permissible under the U.S.
constitution or federal statutes, . . . as amended, or under the
Hawaii Constitution.”
The signature review process took place between October
7 and 12, 2004, and the Chief Election Officer reviewed the
findings of the Office of Elections’ staff and the signatures
that were flagged. On October 18, 2004, the Chief Election
officer issued his findings and determined that Nader/Camejo had
failed to gather the requisite number of valid signatures
required by Hawai'i Revised Statutes ("HRS") § 11-113 (2004), and
thus did not qualify for inclusion on Hawaii’s presidential
ballot. Nader/Camejo filed a timely notice of appeal to the
circuit court on October 18, 2004.
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
2. Beroutka/Baldwin
on Septenber 24, 2004, Peroutka/Baldwin filed a written
request for a hearing. The hearing was held on September 30,
2004, and Peroutka/Baldwin objected to the Chief Election
officer's presiding over the hearing. The Chief Election Officer
issued his Findings of Fact, Conclusions of Law, and Decision on
october 5, 2004, which determined that Peroutka/Baldwin had
failed to gather the requisite number of valid signatures
required by HRS § 11-113, and thus did not qualify for inclusion
on Hawaii's presidential ballot. Peroutka/Camejo filed a timely
notice of appeal to the circuit court on October 18, 2004.
3. Appeal before the circuit court:
On appeal before the circuit court, both
Peroutka/Baldwin and Nader/Camejo raised identical arguments, as
follows: (1) Appellants were not provided a fair administrative
hearing before an impartial and unprejudiced election officers
(2) the administrative decision was arbitrary, capricious, and/or
not based on any credible evidence; and (3) the practices and
procedures used to count and determine the validity and
sufficiency of the signatures were unconstitutional. On November
23, 2004, the circuit court filed its decision affirming the
administrative decision of the Chief Election Officer. Therein
the circuit court held: (1) that “it is not clear, manifest, and
unmistakable that the relevant laws or procedures” used in
verifying signatures were unconstitutional, inasmuch as
Appellants failed to rebut the presumption that the legislative
enactments and statutory scheme at issue in the instant case are
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
constitutional; (2) that the administrative rules and decisions
were reasonable and not arbitrary or capricious; and (3) that
Appellants failed to show either a pecuniary or institutional
interest that would disqualify the Chief Election Officer from
being involved in the administrative hearing.
on April 5, 2005, the circuit court filed its final
judgments. On April 13, 2005, Appellants timely filed @ joint
notice of appeal.
IL, STANDARD OF REVIEW
Secondary Adninistrative Appeal
“on secondary judicial review of an administrative
decision, Hawai("]i appellate courts apply the same standard of
review as that applied upon primary review by the circuit court.”
Kaiser Found, Health Plan, Inc, v. Dep't of Labor & indus.
Relations, 70 Haw. 72, 80, 762 P.2d 796, 800-01 (1988). For
adninistrative appeals, the applicable standard of review is set
forth in Hawai" Revised Statutes ("HRS") § 91-14 (2004), which
provides:
Upon review of the record the court may affirm the decision of the
agency oF Tenand the case with instructions fer further
Procecdingay or it may reverse or modify the decision and order if
Eke substantial rights of the petitioners may have been prejodiced
because the adninistrative findings, conclusions, decisions, or
orders are
(2) io violation of constitutionel or statutory
provisions; or
(2) Envexcess of the statutory authority or jurisdiction
e 5 or
(4) Affected by other error of law; or
(5) Clearly erfonsous in view of the zeliable, probative,
Gnd substantial evidence on the whole record; or
(6) Arbitvary, capricious, or ch
Giseretion or clearly’ unwarrant
discretion,
‘++ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
HRS § 91-14(g). Pursuant to HRS § 91-14(g) (5), administrative
findings of fact are reviewed under the clearly erroneous
standard, which requires this court to sustain its findings
wunless the court is left with a firm and definite conviction
that a mistake has been made.” Bumanglag v. Oahu Sugar Cou
Ltda, 78 Hawai'i 275, 279, 892 P.2d 468, 472 (1995) (block format
and citation omitted). Administrative conclusions of law,
however, are reviewed under the de nove standard inasmuch as they
are “not binding on an appellate court.” Id. (block format and
citation omitted). “where both mixed questions of fact and law
are presented, deference will be given to the agency’s expertis
and experience in the particular field and the court should not
substitute its own judgment for that of the agency.” Dole Hawaii,
DivicCastle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794 P.2d
1115, 1118 (1990). “To be granted deference, however, the
agency's decision must be consistent with the legislative
purpose.” Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797
(19e4).
B. Statutory Interpretation
“rhe constitutionality of a statute is a question of
law that we review under the right/wrong standard.” Child
Support Enforcement Agency v, Doe, 109 Hawai'i 240, 246, 125 P.3d
461, 467 (2005) (citation omitted). Moreover, “(w)e have long
held that: (1) legislative enactments are presumptively
constitutional; (2) a party challenging a statutory schene has
the burden of showing unconstitutionality beyond a reasonable
doubt; and (3) the constitutional defect must be clear, manifest,
{#07 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER,
and unmistakable.” Id, (citations and quotation marks omitted).
However, this presumption “does not apply to laws which classify
on the basis of suspect categories or impinge on fundamental
rights expressly or impliedly granted by the constitution.” Id.
(citation omitted). When this occurs, “[s]uch laws are presumed
to be unconstitutional unless the state shows compelling state
Interests which justify such classifications, and that the laws
are narrowly drawn to avoid unnecessary abridgnents of
constitutional rights.” Id, (citations and emphasis omitted) .
Tir. DIscussroN
A. Appellants’ Assertion That Hawaii's Regulatory Framework
Prescribing Signatory Requirements For a Presidential
Candidate’s Inclusion On a General Election Ballot Ts
Unconstitutional Is Deemed Waived Pursuant To Hawai'i Rules
Of Appellate Procedure Rule 28(b) (7) (2005).
Appellants assert that Hawaii's regulatory framework
prescribing signatory requirements for a presidential candidate's
inclusion on a general election ballot are unconstitutional
because it deprived (1) them of their rights to be candidates and
(2) the voters of the right to associate with 2 candidate of
their choice.
HRS § 11-113(c) (2) (B) (1993) provides:
() ALL candidates for President and Vice President of the
united States shail be qualified for inclusion on the general
lection Ballot under either of the following procedures
2) tn the case of candidates of parties or croups not
quelitied to place candidates on the prinary or general
@lection ballots, the person desiring to place the names on
the general election ballot shail fle with the chic
election officer not later than 4:30 p.n. on the sixtieth
Gay prior'to the generat eiection
is) A petition which shall be upon the form prescribed
and provided by the chief election officer containing the
+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
signatures of currently registered voters which constit
hot less than one per Cent of the votes cast in the Sta
the last presidential election. ‘The petition shall contain
the hanes of the candidates, a statenent that the persons
Signing intend to support those cendidates, the address of
Gach sagnatory, the date of the signer’s signature and other
Untormation av determined by the chief election officer.
Pursuant to HRS § 11-113(c) (2) (B), the Chief Election
officer determined that the minimum number of signatures of
registered voters required to qualify for inclusion on Hawaii's
2004 general election ballot as president and vice president was
3,711. According to his Septenber 20, 2004 letter, the chief
Election Officer informed Peroutka/Baldwin and Nader/Canejo that
of their 7,195 and 7,184 signatures submitted, only 3,481 and
3,672 were valid, respectively. The number of valid signatures
was revised lower in his Septenber 24, 2004 letter, which stated
that Peroutka/Baldwin had a revised 3,471 signatures, and
Nader/Canejo had a revised 3,124 signatures. Because both
campaigns did not meet the minimum number of valid signatures,
the Chief Election officer determined that neither campaign would
be included in Hawaii's general election ballot.
In the instant case, Appellants do not contest whether
the one percent signature requirement is constitutional.”
Indeed, even though Appellants’ point of error suggests that they
2 we observe that the federal district court for the District of
hawai's has rendered a sip opinion in this case, wherein Lt held that the one
percent signature requirement is not unconstitutional under the First and
Fourteenth Amendments to the federal constitution, Mader ¥. Cronin, No. 04
Odéil, slip op. at 5-7 (D. Haw. Feb. 7, 2008)
8
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *
are asserting that Hawaii's signatory requirements are
unconstitutional, Appellants have not advanced any argument to
that effect.
Instead, Appellants argue that because signatory
restrictions implicate the fundamental right to candidacy,
Hawaii's regulatory framework should be Liberally construed in
favor of the candidate. specifically, their arguments are
focused around the issue of whether the Chief Election officer
clearly erred in his implementation of Hawaii's signatory
requirements, as follows: (1) it is clearly erroneous to reject
signatures merely because they are illegible; (2) “although the
office of Elections requires that signatories provide their
address and date of birth . . . the examiners did not attempt to
validate signatories by cross-referencing that information on the
statewide voter registration systen"; and (3) it is clearly
erroneous to reject a signature merely because the signatory’s
Listed on the
address on the petition did not match the addr
statewide voter registration system ("SVRS") .
Because Appellants present no argument in support of
their point of error that Hawaii’s signatory requirements are
unconstitutional, this point of error is deemed waived. See
Hawai'i Rules of Appellate Procedure Rule (“HRAP”) 28(b) (7)
(2005) (*[TJhe appellant shall file an opening brief, containing
the following sections . . . : (7) The argument, containing the
contentions of the appellant on 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
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTEI
deemed waived.
B. The Chief Election Officer's Interpretation and Application
of Hawaii's Regulatory Framework Prescribing Signatory
Requirements Was Not Clearly Erroneous
As delineated above, Appellants assert that the Chief
Election Officer's interpretation and application of the statute
and rules comprising Hawaii's signatory requirements should be
Liberally construed in favor of Appellants because of the
constitutional rights involved in the instant case.
specifically, they assert that the Chief Election Officer’ s
conduct was clearly erroneous in the following ways: (1) it was
clearly erroneous to reject signatures merely because they were
illegible; (2) “although the Office of Elections require(d) that
signatories provide their address and date of birth . . . the
examiners did not attempt to validate signatories by cross-
referencing that information on the statewide voter registration
system”; and (3) it was clearly erroneous to reject a signature
merely because the signatory’s address on the petition did not
match the address listed on the SVRS.
Hawai'i Administrative Rules (“HAR”) § 2-51-112 (2004),
entitled “Presidential petitions; qualification of
signatories(,]” provides, in its entirety:
‘To determine whether an individual is qualitied to sign a
presidential petition, the chief election officer oF designated
sfesentative shall determine whether the signatory is an ective
Fepistered voter by checking the statewide voter registration
aysteny provides thst 2 properly executed voter registration form
Shell be effective if it is received by the clerk and the
iiant’ s nane has been entered in the statewide voter
Eagistration system on or before the date on which the petition is
flea
HAR § 2-51-113(b) and (d), entitled “Presidential
10
HAWAII REPORTS AND PACIFIC REPORTER ***
‘OR PUBLICATION IN WEST"
petitions; verification of signatories(,]” provides:
(b) Upon receipt of a petition containing at least, the
minimum number ef signatures required pursuant. to HRS $ 11~
T13(c) (2) (b)s, the chief election officer or designated
23th dctative shall. verity whether the signatory 18 eligible to
HGn che petition, Zo be eligible, the signatory sust be
HSlatered voter in Hawaii and must oppear in the statewide voter
iedideracion system as an active registered voter.
(G] Te the signatory on the petition exis
an active registered voter in the statewide voter
fegistration system, then the signatory shall be
(2) 1£ the signatory on the petition does not
exist aa an active ragistered voter in the statewide
ote: registration system, then the signatory shall
ot be counted:
(GT there are duplicate signatories on
party petition, and the signatory is an active
Pegiteered voter, then the signatory shall be counted
ones; and
Tay re the signetory does not provide all of the
required infornation on the petition or if the information
jg) the chiee election officer may verify that the voter's
signature on the petition corresponds with the voter's signature
Sibthe"vocer's registration form. If the signature does not
SSerespond, then the voter's signature on the petition shall not
SereSakeed! “the chief election officer or designates
Pepresentative shall indicate on the petition that the voter's
EiBadeure is invalid because it does not match the signature on
the voter’ s registration form.
(emphasis added.)
According to the Chief Election Officer's Findings of
Fact,
A signature Ss deemed: (a) valid Lf the signatory is listed
Sycelve” in the State Voter Registration System, (SVR), (6)
[hvala if" the signatory is listed as “inactive” in the SVRS, (c)
SGntaining insufficient information if the information submitted
Sythe signatory could not be verified due to insufficient
Piecmation (ice. no octal security number, date of birth,
Signature, of could not be read from the record), (d) of no record
UeNthe signatory does not appear in the SVRS, (e) fo have @
Gieterent address if the address information on the petition did
Sot natch the address in the SVRS, and (f) to be a duplicate if
the signatory eppeared twice on the petition.
checked
‘The circuit court found that “the signatory i
a
{+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
a
against the (SVRS) to determine if he is an active regist
voter." According to the circuit court, because “[t]he SVRS
allows for voter records to be pulled up by either social
security number or nane[,]" “it is critical that signatories
comply with the requirement of printing their name in order to
avoid illegibility issues, which will result in the record not .
» « being accessible.” The circuit court also found that the
petition form contained the following columns that were filled
out by the signatory:
(2) “Print Your Nane Here,” (2) “Sign the Name Under Which
You Are Registered co vote,” (3) “Print the Reside
Address at Which You are Registered to Vote,
Date," and (S) "Date Signed.” ‘There is additionally a
colunn for the voter's "social Security Number,” however
Completing this column is optional.
Finally, the circuit court found that “{mJost signatories did not
provide their social security number.”
Based on the affidavits of Stiver and Porter, two of
the Appellants in this case, Appellants allege that it was
clearly erroneous for the Chief Election Officer to reject a
large number of signatures as illegible without making a serious
effort to decipher the nanes or use other identifying
information. HAR § 2-51-113(b) (4), however, clearly provides
that the Chief Election Officer “nay” not count a signature “if
the information is not legible.” Moreover, the circuit court
“confirmed that many of the names submitted were not legible, as
found below-thus, this finding was not clearly erroneous.”
Additionally, Appellants have not pointed to anything in the
record substantiating their claim: namely, the petitions
themselves. See HRAP Rule 28(b) (7). Accordingly, we must
12
‘42+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER.
“sustain (the Chief Election Officer's] findings” because we
cannot say “with a firm and definite conviction that a mistake
has been made.” Bumanglag, 78 Hawai'i at 279, 892 P.2d at 472
(block format and citation omitted).
Again based on the affidavits of Stiver and Porter,
Appellants assert that although the Office of Elections requires
that signatories provide their address and date of birth on the
petition form, it was clearly erroneous to not attempt to
validate signatories by cross-referencing that information on the
svRS. Appellants, however, fail to point to anything in Hawaii's
regulatory framework that compels the Chief Election Officer to
cross-reference a signatory’s address or date of birth to the
Anformation within the SVRS. Apparently, the SVRS is set up in
such a way that voter records are pulled up by either social
security number or name. Providing a social security number on a
petition is optional, and the circuit court found that most
signatories did not provide one. Accordingly, when a signatory
elects not to provide his or her social security number, the
Chief Election Officer's only option is to pull the voter's
records by his or her name. However, if the name as written on
the petition is illegible, the Chief Election Officer “may” not
count that signatory. HAR § 2-51-113(b) (4). The circuit court
“confirmed that many of the names submitted were not legible, as
found below!.]” As such, we cannot say “with a firm and definite
conviction that a mistake has been made(]” when the Chief
Election Officer purportedly did not attempt to validate
signatories by cross-referencing other information in the
13
FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
petition with information in the SVRS. Bumanglag, 78 Hawai'i at
279, 892 P.2d at 472 (block format and citation omitted).
Finally, Appellants assert that HAR § 2-$1-113(b) does
not authorize invalidating a signature merely because the
signatory’s address on the petition is different fron the address
provided in the statewide voter registration system. The Chief
Election Officer asserts that the state has an interest in
detecting fraudulent or questionable signatures. Pursuant to
this interest, the state employs signatory requirements that are
necessary to ensure that the signatory is in fact a registered
voter.
Nevertheless, Appellants assert that an address change
should not disqualify a signatory from signing a petition,
inasmuch as HRS § 11-21(c) (2004)‘ does not disqualify a
registered voter from voting for the same reason. However,
Appellants’ reliance on HAS § 11-21(c) is misplaced, inasmuch as
HAR § 2-51-113(b) (4) provides that the Chief Election officer
vmay” not count a signature “[iJ£ the signatory does not provide
all of the required information on the petition . * one of
the colunns on the petition form required a signatory to “Print
the Residence Address at which You are Registered to Vote(.]”
+ as § 11-21(6) provides:
{c) Any person whose nane appears on the registered voters List
those Fesidence has changed since the last election, and whom the
Ulunt, Clerk has not teatsferses under section 11-20, may apply en
2 form prescribed by the chief elections officer at the person's
ew polling place on the day of the election for transfer of
precinct,
+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***
In Light of the state’s interest in detecting fraudulent or
questionable signatures, we cannot say that it was clearly
erroneous for the Chief Election Officer to reject a signature
pecause the signatory provided a different address on the
petition form than was provided in the SVRS.
c. The Circuit Court Did Not Exr When It Determined That
Appellants Were Provided With a Fair Adninistrative Hearing
Appellants assert that because the Chief Election
officer presided over the administrative hearing requested by
peroutka/Baldwin, Appellants did not receive a fair and impartial
hearing, and were therefore denied their constitutional right to
due process. Appellants also assert that Nader/Camejo were
compelled to settle because they could not receive a fair and
impartial hearing inasmuch as the Chief Election Officer presided
over the hearing. The circuit court held that, pursuant to
‘Sitagaloa v. Bd, of Trs, of Emplovees’ Ret. Sva,, 74 Haw. 161,
940 P.2d 367 (1992), Appellants received a fair and impartial
hearing because the Chief Election Officer did not have a
pecuniary interest, and his only institutional interest was to
ensure that a fair election was conducted.*
In Sifagaloa, the Board of Trustees of the Employees’
Retirement System, upon reviewing a decision submitted by the
Medical Board, denied Sifagaloa’s request for disability
retirement benefits. 74 Haw. at 186-87, 840 P.2d at 370, The
same Board of Trustees adjudicated his appeal from the Medical
+ appellants appear to assert that Sifagalea is inapposite, even
‘though they theaselves rely on language in the case when making theif
Srgusent. Sigagalea is squarely on point
15
'S HAWAII REPORTS AND PACIFIC REPOR’
Board’s decision. Id, at 187, 840 P.24 at 370, After conducting
hearings on the matter, the Board affirmed the Medical soard’s
decision. Id, at 187-88, 840 P.2d at 370. On appeal, Sifagaloa
asserted that he was denied his constitutional right to due
process because the Board's conflicting interests of awarding
retirement benefits and preserving the retirement fund brought
about an appearance of impropriety whereby their impartiality
might reasonably be questioned. Id, at 188, 640 P.2d at 370-71.
This court determined that administrative agencies are subject to
the same “basic requirement of due process” of a “fair trial ina
fair tribunal[.]” Id. at 189, 640 P.2d at 371 (citations and
quotation marks omitted). Even though “a biased decisionmaker is
constitutionally unacceptable(,]” it does not necessarily follow
“that the disqualification of decision-makers on grounds of
actual bias prevents unfairness in all cases.” Id. (citations,
quotation marks, brackets, and ellipsis omitted).
In observing that “our systen of justice has always
endeavored to prevent even the probability of unfairness(,]" this
court observed “that justice can perform its high function in the
best way only if it satisfies the appearance of justice.” Id. at
189-80, 840 P.2d at 371 (citations, quotation marks, and brackets
omitted). This court held, however, that “[aln appearance of
impropriety does not occur simply where there is a joinder of
executive and judicial power.” Id. at 191, 640 P.2d at 372.
Instead, “(aldministrators serving as adjudicators are presumed
to be unbiased.” Id, at 192, 840 P.2d at 372. To overcome this
Presumption, the party asserting impropriety has the burden of
16
'+* FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER ***
establishing a disqualifying interest. Id.
In the instant case, Appellants’ assert that it was
improper for the Chief Election officer to conduct the hearing
when, “by virtue of his role as Chief Election Officer, [he was)
responsible for establishing and executing the policies governing
the Office of Elections(.]” However, this court clearly held
that a mere “joinder of executive and judicial power” is
Anaufficient to constitute an appearance of impropriety. see.
Sifagaloa, 74 Haw. at 191, 840 P.2d at 372. Because Appellants
have failed to show that the Chief Election Officer had a
“direct, personal, pecuniary interest” in his exercise of
judicial power, see id. at 192, 840 P.2d at 372, we hold that the
circuit court did not err when it held that Appellants were
provided with a fair administrative hearing.
IV. CONCLUSION
Based on the foregoing analysis, we affirm the circuit
court's April 5, 2005 final judgments.
on the briefs:
Eric A, Seitz and
Lawrence T. Kawasaki for
appellants-appellants Michael A.
Peroutka, Chuck Baldwin, and -
David P.'Porter and Ralph Nader, ee Linen
Peter Miguel Canejo, and
Robert H Stiver Peccsue Co are
Aaron H. Schulaner and Holly .
Shikada, Deputy Attorneys Can 6 Dallp ee
General’ for appellee-appellee
Kevin B, Cronin, Chief Election ies
Officer, State of Hawai'i
a7
| fcc7ef4660b3ef3d6615cdf15a7a0ab67cd2fa61d8f44e10a326950127b5f7f0 | 2008-03-27T00:00:00Z |
2d592c6e-e554-40b0-86f1-80706abc1fda | The Kailuan, Inc. v. Kim | null | null | hawaii | Hawaii Supreme Court | wo. 28990
18 THE SUPREME COURT OF THE STATE OF HAWAI'I)
THE KAILUAN, INC., Petitioner, a 2
ve. He
THE HONORABLE GLENN J. KIM, JUDGE OF THE cIRCUEA? — @
Count OF THE FIRS? CIACUIT, STATE OF HAMAT'T engl
CASTLE FAMILY LLC,’ Respondents.
ORIGINAL PROCEEDING
(ef. Wo. “08"1-0012"01)
(By: Moon, C.d., Levinson, Nakayama, Acoba, and Dufty, oJ.)
upon consideration of the petition for a writ of
mandamus filed by petitioner The Kailuan, Inc. and the papers in
support, it appears that petitioner can litigate the circuit
court's jurisdiction and authority to enforce compliance with the
consent Agreement at a trial on the merits. the respondent judge
did not flagrantly and manifestly abuse his discretion in
requiring a bond of an amount based on administrative penalties,
potential civil fines, real property taxes and estimated exposure
to claims,
1 further appears that a writ of ejectment is
immediately appealable and petitioner can seek 2 stay of such
weit pending appeal. See Zena v. Tzansportation Lease ba
Lida, 2 Haw. App. 272, 274, 630 P.24 646, 649 (1981); Ciesla ve
Reddiah, 70 Hawai's 16, 89 P.24 702 (1995); HRAP &. Therefore,
petitioner 4s not entitled to mandamus relief. See Kena v
Gaddis, 91 Hawai'i 200, 204-05, 982 P.2d 334, 336-39 (1999) (A
welt of mandamus 1s an extraordinary remedy that will not issue
unless the petitioner demonstrates a clear and indisputable right
aan
to relief and a lack of alternative means to redress adequately
the alleged wrong or obtain the requested action. Such writs are
not intended to supersede the legal discretionary authority of
the lower courts, nor are they intended to serve as legal
remedies in lieu of normal appellate procedures. Where a court
has discretion to act, mandamus will not lie to interfere with or
control the exercise of that discretion, even when the judge has
acted erroneously, unless the judge has exceeded his or her
jurisdiction, has committed a flagrant and manifest abuse of
discretion, or has refused to act on a subject properly before
the court under circumstances in which it has a legal duty to
act.). Accordingly,
IP IS HEREBY ORDERED that the petition for a writ of
mandamus is denied
DATED: Honolulu, Hawai'i, February 14, 2008.
Gre
Deate Oreoeeuyares
oS
Yom 6, Rade dh
| 0d7f160f8e8bdec6183a44047d889deb41bacf5dde624d55d107e8796b0d6515 | 2008-02-14T00:00:00Z |
8f0a1f65-67ce-4c7a-a86e-712188e577a0 | State v. Hauge | null | null | hawaii | Hawaii Supreme Court | No. 27805
IN THE SUPREME COURT OF THE STATE OF HAWAT'T
z=
STATE OF HAWAI'I,
Plaintift-Appelles
CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS
(S.P.P. NO. 04-1-0026, CR. NO. 01-1-2345)
(By: Levinson, J., for the cour
upon consideration of the application for a writ of
certiorari filed, on January 7, 2008, by the defendant-appellant-
petitioner Steven M. Hauge, the application is hereby rejected.
DATED: Honolulu, Hawai‘i, February 11, 2008.
FOR THE couRT:
Shawn A, Luiz,
for the petitioner
Steven M. Hauge
on the application
+ considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 3d
aatd
| b48bd234a4d3d4bf470dc4d03e94e5cc84da5bee0e7fe5e30fbe0cfd057773eb | 2008-02-11T00:00:00Z |
966bfd0b-9b28-4063-b12a-8c425399bfbc | State v. Monico | null | null | hawaii | Hawaii Supreme Court | No. 26808
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent-Appellee,
81 Nir uaz
oats
LORRAINE NIVERAS MONICO, Petitioner-Appellai
woe
CERTIORARI TO THE INTERMEDIATE COURT OF APPi
(CR. NO. 03-1-0813)
ORDER REJECTING Ai WRIT OF cERTTO
(By: Nakayama, J., for the court’)
Petitioner-Appellant’s application for writ of
is hereby rejected.
certiorari filed on Decenber 11, 2007,
DATED: Honolulu, Hawai'i, January 18, 2008.
FOR THE couRT:
Runa Crain (© SEAL
Associate Justice a
Keith S. Shigetomi for Le or wi
petitioner-appellant
on the application
oon, 2:4 Levinson, Nakaysra, Accbe, and Duffy, J
‘considered by:
| a8d78e761c23788dd048444b6d25339634d0d7ebfeee748f17725253be3a97d5 | 2008-01-18T00:00:00Z |
8d4505b6-83e5-4143-93ea-7d25ecfc1db7 | State v. Andrews | null | null | hawaii | Hawaii Supreme Court | LAW LIBRARY
g
No. 27668 s 2
z
IN THE SUPREME COURT OF THE STATE OF HAWA\ a
=
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee
vs.
JASON KELLY ANDREWS, Petitioner/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO, 03-1-279K; SPP NO. 05-1-006K)
(By: Moon, C.J., for the court;
and Acoba, J., dissenting, with whom Duffy, J., joins)
‘The Application for Writ of Certiorari filed on
January 8, 2008 by Petitioner/Defendant-Appellant Jason Andrews
is hereby rejected.
DATED: Honolulu, Hawai'i, February 20, 2008.
FOR THE COURT:
oe T.¥. MOON
Chief Justice
Deborah L. Kim, Deputy
Public Defender, on the
application for
petitioner/defendant-
appellant.
1 Levinson, Nakayama, Acoba, and
+ considered by: Moon, C.J.
Dotty, 93.
| 4a47a910c9a80aebaa537d4533635ed4cffbc34572a42fdc90a7a3305abd574f | 2008-02-20T00:00:00Z |
0c03d204-2857-4bf7-9797-d5c462c61084 | State v. Jess. Concurring and Dissenting Opinion by J. Nakayama [pdf]. Dissenting opinion by J. Acoba [pdf]. S.Ct. Order Accepting Reserved Question, filed 04/26/2007 [pdf]. S.Ct. Order of Correction, filed 04/04/2008 [pdf]. S.Ct. Order Denying Motion for Reconsideration, filed 04/18/2008 [pdf], 117 Haw. 335. J. Acoba Dissenting. | 117 Haw. 381 | null | hawaii | Hawaii Supreme Court | LAW UsRaRy
‘#4 FOR PUBLICATION TH WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER +4
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
000 =-~
STATE OF HAWAT'L, Plaintif£-Appellant,
He aeM ane
BRIAN JESS, Defendant-Appellee.
oats
No. 26483
RESERVED QUESTION FROM THE FIRST CIRCUIT COURT
(CR. NO. 0-1-0422)
MARCH 31, 2008
MOON, C.J.; LEVINSON, AND DUFFY, JJ., NAKAYAMA, J., CONCURRING
AND DISSENTING SEPARATELY, AND ACOBA, J., DISSENTING SEPARATELY
OPINION OF THE COURT BY LEVINSON, J.
On October 6, 2004, the defendant-appellee Brian Jess
filed 2 26 U.S.C. § 2254 (1996)! petition for @ writ of habeas
corpus in the United States District Court for the District of
Hawai'i. In his petition, Jess alleged that the extended tern
sentence that the circuit court of the first circuit, the
Honorable Victoria S. Marks presiding, imposed upon him on May 7,
2001,* pursuant to Hawai'i Revised Statutes (HRS) §§ 706-661
28 0.8.0, $ 2254 provides in relevent part thet “a district court shall
jcstion for s writ of habeas corpus in behalf of » pereen in
gustody pursuant to the judgsent of » State court only on the goeurd hee he
is in custody in vielation of the Constitution or aus or teeatieg ae mae
United states.”
* The sentence was imposed in Criminal No. 00-01-0422.
4168 POR PUBLICATION IN’ WEST'S KAWAI'T REPORTS AND PACIFIC REFORTER
(supp. 1999),? 706-662(1), 706-662(4) (a) (Supp. 1996) ,*
> an 2000, HRS § 706-661 provided:
In the cases designated in [HRS §] 706-662 (see infra
note 41, a person who has been convicted of a felony nay be
Sentenced toon extended indeterminate term of imprisonment. When
Stdering such sentence, the court shall impose the maxinun
Sength of imprisonment which shall be as follows:
(i) ror murder in the second degree = life without the
poteibility of parole:
(2) For'a clase A felony “- indeterninate life term of
imprisonment
(3) Fora clase B felony -- indeterminate twenty-year term of
imprisonment; and
(4) Fora class ¢ felony ~- indeterminate ten-year term of
impriscoment
‘The minimum length of imprisonment for sections 2, 3, and 4
shalt be determined by the Hawai [i paroling authority ‘in
accordance with (HRS 5) 706-669,
Effective June 22, 2006, the legislature anended HRS $6 706-661 and -662, set
2006 Haws Seas. L. Act 230, $6 23, 24, and S¢ at 1012-13, 1028, to address
ethceras raised by the Hawai Judicial Council that Hawaii's extended term
neencing schene faced challenges in federal court that it violated a
Sefendent's right to a Jury trial, protected under the sixth amendnent to the
Osited States Constitution, as articulated in spgrendi e, New Jersey, 530 U.S.
tes (2000), and ts progeny. See Report of the Committes to Conduct a
‘at Zii-2iq 12005); Sen. Stand.
ESRRISRERSANE gals, in 2000 Senate Journal, at 1557; Hse. Stand. Conn, Rep.
Now G65-06, ih 2006’ House Journsl, at 1358." The amended version of BRS
$ 06-661 provided in relevant part
‘The court may sentence s person who satisfies the criteria
for any of the categories set forth in [HRS] 706-662 to an
Extended term of inprisossent, which shell have maximum length
as fellows
(2)! for murder in the second degree -- Life without the
possibility of paroles
(2) Fora clase A felony “- indeterminate life term of
imprisonsent,
(3) Fora class B felony -- indeterminate twenty-year term
of Imprisonment; and
(4) For a claaa € felony = indeterminate ten-year term of
Enprisonsent.
2 ere nent ether ave. Labi
becessaty (or the Br: oe a ne
he pees Snr or the other factors set forth
‘When ordering an extended term sentence, the court shell
impose the moximon length of imprisonment... «
(continved...)
+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
2. seontinues)
(Emphasis added.) Eftective June 30, 2007, the amended version of HRS
§ 706-661 expired and the Supp. 2003 version, gupca this note, was reenacted
Hee 2006 Hau. Seas. L. Act 290, § 54 at 1025
Finally, ‘effective cetober 31, 2007, the legislature anended HRS
$706~661 8 part of its reform of the state's extended term sentencing laws to
bring them into compliance with the requirenents of Aperendi and ite progeny.
NRS'§ 606-661 was snended to reed
Extended terms of imprisonsent. The court may sentence » person
ho satisfies the criteris fer ony of the categorses set forth in
{its $) 706-6621, intra note ¢,) to an extended term of
imprisonment, which shall have the maximum length es follows
U1)” For murder in the second degree —- life withoue the
possibility of parole;
(2) Por'a class & felony
indaterminate Life term of
inprisonnent:
(3) For a class B felony -- indeterminate twenty-year tere
of inpriscnment; snd
(4) For a class C felony ~- indeterminate ten-year term of
inprisonnent.
nen ordering an extended term sentence, the court shell inpost
the maximun length of imprisonment. The minimum length of
imprisonment for an extended term sentence under paragraphs (21,
(3), ane (4) shall be determined by the Hewai ("|i parcling
authority in accordance with (HRS §) 706-669)
H.B. 2, 24th Leg., Second Spec. Sess. (2007), av a
hitp://eapitol .Rawail. gov/splseessen2007B/bii1¢/HB2_ htm enacted as Act 1 en
October 31, 2007), see. http: //eapitel.hanail.gov/sitel /archives/200%/
getstatus? asp7bilino=KB2.
‘tn 2000, HRS § 706-662 provided in relevant part:
A convicted defendant may be subject to an extended term of
seprisonment under [HRS $] 706-661 (, gee aubra note 3), if the
convicted defendant satisfies one of more of the following
eriteria
1) "The defendant is a persistent offender shose inorisconent
hewcat ot make tht less the
Sefendant has previously been convicted of two felenies,
Connitted at different times when the defendant was eighteen
years of age or older,
\4) | The defendant is a multiple offender whose criminal actions
cere for th The .
= shi :
{a} The Gefendant is being Tentenced for two or more
felonies or is already under sentence cf inprisonnent,
for felony(.]
(continved. ..)
FOR PUBLICATION 18 WEST’ § HAWAL'T REPORTS AND PACIFIC REPORTER ***
+1. continued)
(Emphases ded.) Effective June 13, 2001 and Aprii 23, 2003, the legislature
amended HAS § 106-662 in ways immaterial to the present matter. See 2003 Haw.
Seea, L. Ret 33, 582 and € at Adds; 2001 Haw. Sess, L. Act 240, 88 3 and 6
at 630-31
Tn dection 24 of Act 250, effective June 22, 2006, the legislature
anended HES § 106-662 to address the sane alleged constitutional infirmities
Siscussed gupca in note 1, Act 230 amended HRS § 706°662 to provide in
relevant parts
A defendant who haz been convicted of felony qualifies for
fan extended tere of imprisonment under [HRS §) 706-661 if the
Gonvicted defendant satisfies one oF more of the following
criteria:
1) ""the defendant is 0 persistent offender in that the defendant
has previously been convicted of two felonies committed at
different tines when the defendant was eighteen years of age
or oleer
ia "tre degendant is a multiple offender in that:
a) The defendant is being sentenced for two or nore
‘or is already under sentence of imprisonment
|b) The maximum terns of imprisonment authorized for each
Of the defendant’ s crimes, sf made to Fun
Conseeutively, would equal or exceed in length the
Raxinum of the extended term imposed oF would equal or
Cheeed forty years sf the extensed term inposed is for
a'class A felonyl.)
Effective June 20, 2007, the amended version of HAS § 706-662 expired and the
Sopp, 2003 version, gupra this note, was reenactes. See 2006 Haw. Sess. L.
Ret 230, § $4 at 1025.
Effective October 31, 2007, the legislature again anended HRS § 706-662
as part of ite reform of the state's extended sentencing schene to bring it
eS ’Soupliance with Apprendi anc Cunsingham ve California, 563 U.S.) 127
Bret, B56 (2007). The amended version of HRs § 70e-6e2 provides in Felevant
part:
criteria for extended tera of imprisonsent: A defendant who hi
Seen convicted of a felony sey be cubject to an extended term of
imprisonment Under (HRS §) 706-€61(, gee aumza note 3,) if it Ss
proven beyond 2 reasonable doubt thst an extended term of
Unprisonment ie necessary for the protection of the public and
thet the convicted defendant setisfies one er more of the
following eriteri
(2) “the defendant is a persistent offender in that the
Gefendant hes previously been convicted of two or more
felonies conaitted st different times when the
SSfendact wos eigntesn yeare of age or older:
Jai" fhe defendant iso multiple offender in that.
(continued...)
FOR PUBLICATION IN WEST’ 8 HAWAI'I REPORTS AND PACIFIC REPORTER ++#
and 706-664 (1993)* was, in light of Apprendi v, New Jersey, 530
“(.-seontinued)
(a) The defendant is being sentenced for two or nore
felonies or is already ander sentence oF
imprisonment for auy felony; oF
(b) The maximum term Of impriscement authorizes for
each of the defendant's crimes, if nade te con
Consecutively, would equal or exceed in length
the maximum of the extended term inposed oF
would equal or exceed forty years If the
extended term inposed is for's class A feleny(.)
iB. 2 24th Leg., Second Spec. Sess. (2007), available at.
http://capitol hawaii gov/spisessicnZ007b/bille/He2--hts Tenacted os Act 1 on
October 31, 2007), gee http://capitel .hawais.gev/sitel /erchives 200%)
getstetuez asproilinosibe
e smptn, 2000s HRS $ 706-664, entitled “Procedure for isposing extended terns
of imprisonment” provide
Hearings to determine the arounde for imposing extended terns of
imprisonment may be initiated by the prosecutor oF by the cours on
its ow motion. The court shall not impese sn extended cere
Unless the ground therefor has been established at a hearing after
She conviction of the defendant and on written netice to cha
Getendant of the ground proposed. Subject to the provisions of
(RS $}"706~604, the defendant shall have the Fash te neces eee
controvert the evidence against the defendant and £0 offer
evidence upon the issue.
Effective October 31, 2007, the legislature anended HRS $ 706-664 ax part of
the overhaul of the Extended sentencing schene, in order to oring ic bets
compliance with Apprendi and Cuoninahanl. The anerided version of MRS $ 106-664
provides
(2), Hearings to determine the grounds for imposing extended
terms of imprisonsent may be initiates by the prosecutor or by che
Gourt on its own motion. The court shall not Impose an excenced
term unless the ground therefor hes been established s© 2 heosieg
after the conviction of the defendant and written notice of the
found proposed was given to the defendant pursuane £0 sussect ion
(2). Subject to the provisions of [HRS §] 506-604. the defoncare
shail have the right to hear and controvert the evidence sseica
the defendant and to offer evidence upon the issue before s Jory
Provided that the defendant may waive the fight te «Jory
Setermination under this subsection, in which case the
Geternination shall be made by the court.
(2) “Notice of intention to seek a extended term of
imprisonment under [HRS §) 706-6621, gee auna note a.) shall be
given to the cefendant within thirty days'ef the Sefensant:s
signnent. However, the thirty-day peried mey be weived By the
defendant, modified by stipulation of the parties, or extensed
pon 2 showing of good cause by the prosecutor. A Gefendsns
(continued, .
‘46 FOR PUBLICATION IN wes:
WOWAY'T REFORTS 28D PACIFIC REPORTER *
0.8. 466 (2000), and its progeny, in violation of his right to a
jury trial as provided by the sixth amendnent to the United
States Constitution. See Jess v. Peyton, No. Civ.
04-006010NS/mK, 2007 WL 1041737, at *1-+2 (D. Haw. April 18,
2006) (dess 11). On April 18, 2006, the United States District
Court granted Jess's petition, concluding that the finding made
by the circuit court, ues, that an extended term was necessary
for the protection of the public [hereinafter, “the necessity
finding’, violated his aixth amendment right to a trial by jury
as articulated in Anprendi. Id, at *4, ‘The district court
ordered the circuit court to resentence Jess in a manner
consistent with tht conclusion. Id, at *6. The reserved
question before this court stens, ultimately, from that order,
and reads as follows:
Pe eee ereaee Le yury te sakes factual. finding
Gniextended tern of incarceration is necessary for the
Protection of the public?
So, seontsinued)
Previously sentenced to an extended term under = prior version of
Eile chapter shell be deened to have receives notice of en
Intention te seek an extended term of impriscament..
1S) “i the jury, oF the court if the cefendant has weived
the right toa jury determination, finds that the facts necessary
for ine inpesiticn of en extended term of impriscnnent uncer [HRS
4) 706-662 have Been proven beyond a reasonable doubt, the court
fay impose on indeterminate term of imprisonment as provided in
{hRs §) 706-c61{, see gunca note 3).
BB. 2, 24th Leg., Second Spec. Sess. (2007), available at
Mep://eepitol,nawall.gov/spisession2007b/bii1s/HB2_.htm (enacted a8 Act 1 on
Geteber 3, 20071, see netps //eapitel .nawsii.gov/sitel/archives/2007b/
getstatue2 -asp?bilinonie2..
‘+4 FOR-PUBLICATION IW WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +++
‘The issue raised by the reserved question was addressed
in part in our recent decision in State v, Maugactega, 115
Hawai'i 432, 168 P.3d 562 (2007), (hereinafter, “Maugaotega 11”).
Based upon Maugaoteca II and the analysis infra, we answer the
reserved question as follow:
Although the two-count complaint filed by the
Prosecution on March 2, 2000 against the defendant
appellee Brian Jess did not charge the “aggravated
crines” described in HRS § 706-662, gee Cannin
549° U.S. 1278. Cha 856, 864 12007,
the circuit court ‘nevértheless has authority te impose
extended terms of inprisonsent upon Jers pursuant to
the provisions of HRS § 106-662, because our decision
ko reguire the allegation of aggravating extrinsic
facts in a charging instrument applies peoupectively
only. Furthermore, insofar as the circait court
Possesses the inherent judicial suthority "es provide
process where none exists,” State -v. Moriuake, 6S. Haw:
47, 55, 647 P.28 105, 111-12" (1362]7 and the
Legislature, by amending Hawaii's extended term
sentencing lens to include jury fact~finding, hes
clearly expressed its approval of « jury aysten for
aking the requires finainge in order t0 bring the
extended sentencing procedures into compliance with
han, the circuit court would act within ics
« oy tf noted gupta in notes 3-5, effective October 31, 2007, Act 1 of the
2007 Second Special Session amended Hawsii's extenced term sentencing laws to
Brovide for jury fact-finding in the imposition of extended term senvences
The measure, moreover, provides inpartent statements of legislerive intent and
Provisions for the retroactive application of the new sentencing leus
SECTION 1. The purpose of this Act is to amend Haweii’s extended
term sentencing law to address issues raised in recent federal
court opinions and rulings en the right tea jury triel. These
opinions, Apprendi v. Nex Jersey, $30 U.S. ¢6€ 2000), Blakely v,
Mashington, $420.5. 256 (2008), United States ¥, Booker See's.
220 (200s), end Cunninahen v. Calsfornia, 9¢90.5. —, 127
5. ()¢8. €56 (20071, nave held that any fact, cther han prior or
concurrent convictions, that increases the penalty for a crine
beyond the ordinary statutory maximum must be subeitted to a Jury
and proven beyond @ reasonable doubt
‘The purpose of this Act is to amend Hawals's extended tem
sentencing statutes to ensure that the procedures uses to inpese
extended terns of imprisonment comply with the requirenents bee
forth by the United States Supreme Court end Hawss("]! suprene
court. The legislature intends that these amendments apply to any
cese that requires resentencing because of the decisions in the
(wont inved. «-}
‘ies OR PUBLICATION 11 WEST'S KAWAI'T REPORTS AND PACIFIC REPORTER +
discretion ££, pursuant to HRS $5 706-662(1) ane
Joeeeets) (Supp. 1996), it empaneled a jury to make a
factual finding as to whether the prosecution has
Proved beyond s reasonable doubt that a defendant's
Eoanitrent for en extended term or terms of
Snpeiscnment is necessary for the protection of the
public. Finally, ia light of the plain language of
Ret 1y nee gupta notes 3-6, and the remedial nature of
Ste amendments, the cizcuit court can elso empanel
jury to make the see factual finding with respect to
a'Getendant pursuant to HRS §§ 106-662, a8 onended by
Ret te
I. BACKGROUND
A, Initial Proceedings In The Circuit Court And
‘This Court
on March 2, 2000, the plaintiff-eppellant State of
Howaiti (hereinafter, “the prosecution”) charged Jess by
complaint with robbery in the first degree, in violation of HRS
§ 708-840(1) (b) (44) (Supp. 1988) (Count I), and unauthorized
control of a propelled vehicle, in violation of HRS § 708-836
(Supp. 1999) {hereinafter, “UCPv"] (Count II), both charges
arising out of an incident wherein Jess robbed @ taxi driver at
"1s seontinued
Gouandi, Blakely, Booker, Cunninahan, ard Meucsotegs cases.
othe extent that this Act applies retroactively, the legislature
Hinge thet it does not subject’ any offencer to additional
ponishments or ether disadvantage.
SnttioN 5. This Act shell apply to all sentencing or resentencing
proceedings pending on or commenced after the effective dave of
Ente act. whether the offense was conaitted prior to, on, or after
the effective dete of this Act. A defendant whose extended term
Gf'atprisonment is set acide of invalidated shall be resentenced
pursuant to this Act upen request of the prosecutor.
Seériow @. This Act shall take effect upon its approval.
4.8.2, 24th Leg., Second Spec. Sess. (2007), available at
hitpi//eapitel hawesi.gov/epleesason2007b /ei11s/HBZ_.ptm enacted as Act 1 on
Oetocer 31, 2007), ee https / /eapitol .hawait .gov/sitel /archives/2007b/
{Sone internal citations omitted.)
e
‘#8 FOR PUBLICATION INV WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +++
knifepoint and took the vehicle. The complaint specifically
alleged:
COUNT I: on or sbout the 230 day of February,
2000, in the City and County of Honolulu, state of
Hawaif']i, BRIAN JESS, while in the course of
committing a theft and while armed with s dangerous
instrunent, to wit, 4 knife, dig threaten the smminent
use of force against Canh Tran, a person who was
Present with intent to compel scquiescence tothe
Eating of or escaping with the property, thereby
committing the offense of Robbery in the First Degree,
in violation of Section 108-840 (2) (B) (13) of the
Hawai ("Ii Revised statutes
on or about the 28th day of February,
2000, in the City and County of Honoluls, state of
Hawai ‘TL, BRIAN JESS, aid intentionally or knowsngly
exert unauthorized cantrol over a propelled vehicie,
By operating the vesicle without the consent of can
Ten, ower of aia venscle, thereby committing the
offense of Unauthorized Control of Fropelles Vehicle,
in violation of Section 108-636 of the Bawai('ls
Revises Statutes.
On December 4, 2000, @ jury found Jess guilty of both
counts. On January 10, 2001, the prosecution filed motions (1)
to sentence Jess as a repeat offender, pursuant to HRS
§ 706-606.5 (Supp. 1999), to @ mandatory minimum sentence of six
years and eight months imprisonment, (2) for an extended term of
imprisonment of life with the possibility of parole as to
Count 1, pursuant to HRS §$ 706-661, 706-662(1), and
706-662(4) (a) (Supp. 1996), and (3) for the sentences on the two
counts to be served consecutively, pursuant to HRS § 706-668.5
(1993). On May 7, 2001, the cirevit court, the Honorable
Victoria S. Marks presiding, entered 2 judgnent of conviction and
sentenced Jess to an extended tem of life imprisonment with a
mandatory minimum term of one year and eight months as to Count 1
and an extended term of ten years with a mandatory minimum term
[FoR PUBLICATION IN WESTY § HAMAI'T REPORTS AND PACIFIC REPORTER
of one year and eight months as to Count II, the two sentences to
run concurrently.”
on July 9, 2001, Jess filed a motion for
reconsideration of sentence, which the circuit court denied on
July 31, 2001. Jess had previously filed a notice of appeal to
this court on June 6, 2001, and, on September 26, 2003, this
court filed a summary disposition order affirming the circuit
court’s judgment and sentence, concluding, inter alia, that
Jess's extended term sentences were not unconstitutional under
Apprendi (citing State v. Kava, 102 Hawai'i 1, 12-13, 72 P.3d
473, 484-85 (2003)). See State v. Jess, No. 24339 (Haw. Sept.
26, 2003) (Jess 1).
B. Habeas Corpus Proceedinas In Federa] Court
on October 6, 2004, Jess filed the petition for a writ
of habeas corpus in the United States District Court, seeking to
vacate the extended term sentences. Jess II, 2007 WL 1041737, at
*2, In granting the petition, the United States District Court
concluded that it was bound by the holding of the United states
court of Appeals for the Ninth Circuit in Kaua v. Frank, 436 F.3d
1057 (9th, Cir. 2006), that Hawaii's extended term sentencing
schene violated Apprendi and that, in the instant matter, the
violation did not constitute harmless error. Jess 1, 2007 WL
1041737, at *1.
In dts June §, 2001 findings of fact, conclusions of law, and order
granting the prosecution's motion for extendes term sentencing, the circuit
Ziert found that Jess had four previous felony convictions, qualifying him for
Gn extended term pursuant to HRS § 706-662(2), and was Being presently
Sentenced for two felony counts, qualifying him for an extendea term pursuant
to"hRs 6 706-662 (4) (als and further found chat Jess's extendes incarceration
vas necessary for the protection of the public.
10
‘44 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER *+#
¢. Proceedings On Remand From Federal Court
On July 31, 2006, the prosecution filed its second
motion in the first circuit court to resentence Jess to an
extended term of imprisonment on Count I in @ manner consistent
with the order of the United States District Court by empaneling
@ jury to make the necessity findings required by HRS
§§ 706-662 (1) and 706-662(4) (a). In the declaration of counsel
submitted in support of the motion for an extended term of
imprisonment, after reciting Jess’s prior convictions, counsel
averred:
30. [Jess] is 2 “persistent offender” and a
smultiple offender” whose commitment for an extended
term is necessary for the protection of the public
because of the following facte
2 (Jess) uss on probation in [another
criminal matter] when he committed the instant
offenses.
B. [dees] has on extensive criminal
history:
E.— (uess]"s criminality has continued
criminal
despite his pricr contacts with t
Sustice systen
. (Jess) has felled to benefit from
the criminal justice system.
(Jess) hes demonstrated 2 total
disregard for the rights of ethers and « poor
attitude towara the lo}.
f. “"[Jess] has demonstrated = pattern of
criminality which ingicstes that he ie likely £0
be 3 reciaivist in that he cennot conform hie
Behavior to the requirenents of the Jaw.
g. | Due to the quantity and seriousness
of [sess)'s past convictions and the seriovsn
of the instant offenses, [Jess] poses a serious
threat to the community and his long term
incarceration is necessary for the provection of
the public.
On October 5, 2006, Jess filed an amended motion to
preclude empaneling a jury, arguing, inter alia, that extended
term sentencing was “wholly @ statutory creature in Hawai'i” and
that HRS § 706-662 “expressly entrusts the requisite fact-finding
n
FoR PUBLICATION 18 WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER ***
to ‘the court,’ not a jury." A hearing on the motion was
scheduled for Novenber 10, 2006, but, on Novenber 6, 2006, the
prosecution filed an alternative motion to reserve consideration
of the jury-empanelment question to this court. Jess filed a
memorandum in opposition on December 26, 2006. On February 21,
2007, the circuit court, the Honorable Virginia Lea Crandali
presiding, determined that enpaneling @ jury for the purpose of
making the necessity finding raised a novel question of law and,
therefore, reserved the question, see supra, to this court,
pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 15.°
The prosecuting attorney for the County of Kaua'i filed an anicus
brief on July 11, 2007, and the attorney general filed en anicus
brief on September 18, 2007.
on April 26, 2007, this court entered an order
accepting the reserved question, and, on November 26, 2007, this
court requested supplemental briefing addressing the following
question:
* the dissent aaserte that this opinion is advisory" to the extent thet,
we construe Act i, age gupea notes 4-5, as it pertains to Jess. Dissenting
Spinion et 26-29.’ HRAE Rule 25 provides in relevant part that “[s] circale
Court... may reserve for the consideration of the supreme court 2 guesticn
of law arising in any proceedings before it.” The plain language of this rule
Suthorizes the cirevit court to seek advice fron ur ae to a question of law.
In order adequately to give the circuit court that advice, we must address 612
Televant issues, In the present matter, the prosecution has moved for
Sxtenced term sentencing ond hes represented that it intends to pursue thot
course of action on renane. het 1 speaks directly to extended term sentencing
Frocesures. Accordingly, an assessment of whether Act 1 can be applied to
Sess's resentencing dees net constitute an advisory opinion on an abstract
Proporition that cannot affect the matter at isaue in the present case.” Seg
Wales 115 Nawai's 149, 169 0-35, 166 F.3d 322, 362 9,2: state y,
Eitsinser, “no. 28203, 2006 mi. 257175, ar 6 (Haw. Ce. App. Jan. 30, 200
Thoiding that the Ich's decision to addrers whether Act 1 could be’ applied
retroactively to the defencant was not an edvisory opinion on an abstract
Steve, becsure the case hod to be remanded for resentencing and the
prosecution had stated with certainty that it would seek an extended term of
Expeisonnent pursvant to the procedures set forth in Act 1 oh remand).
12
[FOR PUBLICATION IN WEST’ § WANAI'I REPORTS AND PACIFIC REPORTER
In light of Cunningham v California, 127 $. ce. #56,
Bee (2007), anc State w. Bering, €1 Hawai'i 198, 212,
915 F.2d 672, 686 (1896), what is the significence, if
any, of the fact that the Maren 2, 2000 complasnt
Falls to allege that Jess, in connieting the offences
of rebbery inthe first degree and uneuthorizes
Control cf 2 propelled vehicle, was 0 persistent
and/or multipie offender such that. imposing upen him
5 extended term of imprisonment, pursvant £0 HSS
85 706-661 and 106-662, wos necessary for the
protection of the public?
Jess filed his supplement brief on December 26, 2007, the
prosecution filed its supplemental brief on December 31, 2007,
and the attorney general filed an amicus brief December 31, 2007.
IT. STANDARDS OF REVIEW
Enpaneling A Jury
‘The issue presented by the reserved question -- whether
2 cizcuit court may empanel a jury for the purpose of considering
the requisite necessity finding -- is @ question of law.
“*Questions of law are reviewable de novo under the right/wrong
standard of review.’" Roes v. FHP, Inc., 91 Hawai'l 470, 473,
985 P.2d 661, 664 (1999) (quoting Francis v, Lee Enters., Inc.,
89 Hawai'i 234, 236, 971 P.2d 707, 709 (1999)).
8. Sufficiency Of A Charge
“whether an indictment (or complaint) sete
forth all the essential elenents of [a charged)
offence Ss"s' question of Law,’ which we review
Under the de "novo, of “right/wrong,’ standard.”
* ering, "sl Hewai's (ae) 212, 918 F.20
sth be (quoting state z hells, 76 Hawes's
375, 598, 834"P.2a 70, 76 (1998) (erations omitted) )
State v. Cordeiro, 99 Hawai'i 390, 403, 56 P.3d 692, 705 (2002)
(brackets and ellipsis points in original).
313
e+ FoR PUBLICATION IN WEST”
WWAT'T REPORTS AND PACIFIC REPORTER +
IT. Discussion
Complaine That Jess Was A Persistent And/Or
Extended Term Was Necessary For The Protection
Extended Term Sentencina Pursuant To HAS
706-1 106-662
2. Introduetion
‘The prosecution and the attorney general concede that,
under the fifth amendnent’s grand jury clause” and the sixth
amendment’s notice clause," except for a past conviction, any
fact that increases the maximum penalty for an offense must be
alleged in a federal indictment, because such facts are elemental
to the offense for constitutional purposes. See Jones v. United
States, 526 U.S, 227, 243 n.6 (1999) ("(U]nder the Due Process
Clause of the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment, any fact (other than prior
conviction) that increases the maximum penalty for 2 crime must
be charced in an indictment, submitted to a jury, and proven
beyond @ reasonable doubt.” (Emphasis added.)); id. at 232 (“[A]
fact is an elenent of an offense rather than @ sentencing
consideration, given that elements must be charged in the
Ddictment, submitted to a jury, and proven by the Government
beyond a reasonable doubt.” (Enphasis added.)). They correctly
* See U.S. Const. amend. v ("Mo person shall be held to answer for
capital, or otherwise infanous crine, unless on a presentment oF indictment of
Grand’ gary"
Soe U.S. Const. amend. VI ("in ail criminal prosecutions, the accused
stant Snoy she Fight "eel be inscenea of the satite and chute of the
4
FOR PUBLICATION 16 WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER +#
observe, however, that the indictment rule has not been held to
apply beyond federal prosecutions, because it is grounded in the
fifth amendment’ grand jury clause, which has not been applied
to the states through the fourteenth amendment. See United
States v. Cotton, 535 U.S. 625, 627 (2002) (explaining that,
“[iJn federal prosecutions,” other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum “must be charged in the
indictment” (citing Apprendi, 530 U.S. at 490 (quoting Jones, 526
+ Williams v, Haviland, 467 F.3d $27, 533 (6th
Cir. 2006) (“By explicitly referring to federal prosecutions and
Gistinguishing state prosecutions, Cotton makes clear that
Roprendi did not revisit the well-established rule that the
U.S. at 243 n.6))
states are not bound by the Fifth Anendnent grand jury right.”
(Emphasis in original.)); United states v. Harris, 536 U.S. 545,
549 (2002) (plurality opinion) ("In federal prosecutions, ‘no
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury’ alleging all the elements of the crime.” (Quoting U.S
Const. amend. V.)); Apprendi, 530 U.S. at 477 n.3 (declining te
address the question whether 2 defendant in a state prosecution
could challenge, under the federsl constitution, the absence of
aggravating factors in his indictment and noting that “the “due
process of law’ that the Fourteenth Amendment requires the States
to provide to persons accused of crime . . . has not. . . been
construed to include” the fifth amendment’s grand jury clause);
Ring v. Arizona, 536 U.S, 584, 597 n.4 (2002) (citing Apprendi,
15
530 U.S. at 477 n.3)s Alexander v, Louisiana, 405 U.S. 625, 633
(2972) ("Although the Due Process Clause guarantees petitioner a
fair trial, it does not require the States to observe the Fifth
Anendment’s provision for presentment or indictment by a grand
jury."). Accordingly, in this case, the federal indictment rule
does not govern the sufficiency of the allegations in the
complaint against Jess. We therefore turn our attention to
Hawas't law.
Pursuant to the due process and “grand jury” clauses of
the Hawai'i Constitution, which reside respectively in article I,
sections 5! and 10," the prosecution must allege all essential
elements of an offense in the charging instrument. See State ve
Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995) (explaining
that “the requirement thet an accusation must sufficiently allege
all of the essential elements of the offense charged derived”
from the grand jury clause and the due process clause). In
gee Haw. Const. art. 1, $5.(°
Liberty er property wehowt due proce
Person shalt be deprives of 2ife,
of laws
See Haw. Const. art. 1, § 10 ("No person shail be held to answer for a
cepitel or otherwise infanous crine, unless on presentment or incictnent of
a grand Jory or upon @ finding of probable cause after a preliminary hearing
held ss provided by ew or upen information in weiting signed by 2 Legal
prosecuting officer under conditions and in accordance with procedures that
fhe legislature may provige
1 the attorney general argues that extended term sentencing facts need not
be alleges in the charging instrunent under the notice clause of arzacle Ty
fection 14. Gag How, Const. ort. 1, § 14 ("In all criminal prosecutions, the
Sccused shall'enjoy the Tigst'- . -'te be informed of the nature and cause of
the accusation». "), Under oor precedents, however, the right to notice
of ell ef the eoeential elements of the offense in the charging instrument is
hot grounded in the notice clause but, sther, the due process and grane Jory
cla erael, 16 Hawai at 73, 600 P24 at 3107 Seacev, ciliate, 77
Hawai'i 303, Sil, 864 P.26 372, 374 (1994) ("*[The] requirement Obtains
Whether an accusation ie in the nature of an oral charge, infornation,
Undictnent, ‘or complaint, and the omission of en essential clement of the
continued...)
16
FOR PUBLICATION IN MEST’ § WAWAI'T REPORTS AND PACIFIC REPORTER
contrast to the federal indictment rule, see Jones, 526 U.S.
at 243 n.6, this court has held that not all facts that increase
the maximum penalty for a crime must be pled in the charging
instrument. See State v. Tafova, 81 Hawai'i 261, 270, 982 P.24
890, 899 (1999). We have adhered to the view that sentencing
factors involving facts that are extrinsic to the offense need
not be alleged in the charging instrument, but that sentencing
factors concerning facts that are intrinsic to the offense must
be alleged. Id. Thus, our cases suggest that the procedural
safeguards guaranteed by sections § and 10 of article I attach to
intrinsic, but not extrinsic, facts relating to enhanced
sentencing considerations. See id. The issue is whether this
intrinsic/extrinsic distinction, a distinction that we were
compelled to abandon in Maugaotecs II insofar as it applied to
sentencing procedure, see 115 Hawai'i at 442-43, 445, 168 P.3¢
at 572-73, $75, remains viable insofar as it governs charaing
Sf. ids at 4497.19, 168 P.3d at $79 0.19.
> Estrada, and the intrinsic/extrinsic
‘sistinction
In State v. Apao, 59 Haw. 625, 634, $86 P.2d 250, 257
procedurt
(1978), this court observed that “due process requires that an
indictment contain al) of the essential elements of the offense
%(. .continued)
erine charged is 8 defect in substance rather than of form. A charge
defective in this regara ancunts toa failure to state en offense, and
Conviction based upon it cannot be sustained, for that would consticute a
genial of due process.'* (Quoting State v. Jendruch, 58 Haw. 273, 281, $67
Pied 1242, 1244 (1577).) (Emphasis edded.]37
ro
+04 FOR PUBLICATION IN MEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER *
charged." Consistent with this requirement, we held that the
“better rule is to include in the indictment the allegations,
which if proved, would result in application of a statute
enhancing the penalty for the crime committed.” Id. at 636, 586
P.2d at 258 (footnote and emphasis omitted); see aleo id. ("The
common law required that ‘every wrongful act which [was] to be
taken into account in determining the punishment be alleged in
the indictment.’” (Quoting State v. Blacker, 280 P.2d 789, 792
(Or, 1963).))+ Apprendi, 530 U.S. at $10 (Thomas, J., concurring)
("The indictment must contain an allegation of every fact which
is legally essential to the punishment to be inflicted.’”
(Quoting 1 J. Bishop, Law of Criminal Procedure § 81, at 51 (24
ed. 1872).)). It follows that, because such allegations must be
alleged in the indictment, they comprise “essential elezents” of
the offense. See Apao, $9 Haw. at 634, $86 P.2d at 257. In
State v. Estrada, 69 Haw. 204, 230, 738 P.24 812, 829 (1987), we
“transformed ‘the better rule’ as articulated in Apao into...
lan] ‘unequivocal’ rule," State v, Schroeder, 76 Haw. 517, 527,
880 P.2d 192, 202 (1994) (citation omitted), that “[t]he
aggravating circumstances must be alleged in the indictment and
found by the jury,” Estrada, 69 Haw, at 230, 738 P.2d at 829
(emphasis omitted) (citing Apac, 59 Hav. at 635-36, 586 P.2d at
258).
M The Spas proposition was implicitly grounded in article 1, section 10 of
the Hawai’ Constitution, insofar as we relied on & federel decisien
interpreting the fifth amendnent's grand jury clause. apac, 23 How. at 635 6
orb, 287 4 0-8 (quoting United seanas e. Eadatshy, 335 F.2a $86, $62, lon
Giz! 197}, "oversuled on other areongs by United Stares v. daily, #21 F.2d
984, 100¢ § n11 (20th Cir. 19901)
18
+ FOR PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTER
We have, however, qualified the rule of Apao and
Estrada, holding that “*historical facts,’ the proof of which
exposes the defendant to punishment by extended term sentence,”
State v. Huelsman, 60 Haw. 71, 79, $88 P.2d 394, 400 (1978), need
not be alleged in the indictment or submitted to the jury, see
Schroeder, 76 Hawai'i at 528, 880 P.2d at 203 (1994), because
such facts “are wholly extrinsic to the specific circumstances of
the defendant's offenses and therefore have no bearing on the
issue of guilt per se,” id. at 528, 980 P.2d at 203 (emphasis in
original). For example, the former version of HRS § 706-662
provided, inter alia, that the court was to determine whether the
defendant was a dangerous person whose imprisonment for an
extended term was necessary for the protection of the public.
See supra note 4. We have interpreted this determination to
implicate an extrinsic fact, because it does not directly relate
to the specific elenents of the underlying offense giving rise to
extended term sentencing under the statute. See Zafova, 91
Hawai'i at 270-71, 982 P.2d at 899-900, We have also explained
that extrinsic facts should not be submitted to the jury, because
having the jury find such facts “would require the admission of
potentially irrelevant and prejudicial evidence and contaminate
the jury's required focus of the elements of the offense
charged.” See id. Beyond extrinsic facts, however, we have held
that the Estrada rule remained applicable to “*aggravating
circumstances’ justifying the imposition of an enhanced sentence”
if they involved factual questions that were “‘enmeshed in’™ or
“intrinsic to ‘the commission of the crime charged,’” Schroeder,
19
‘104 FOR PUBLICATION I WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER **4
76 Hawai'i at 528, 880 P.2d at 203 (quoting Apac, 59 Haw. at 634,
586 P.2d at 257) (emphasis in original), such as whether the
defendant possessed a shotgun or used a semiautomatic weapon
during the commission of the offense, see Tafova, 91 Hawai'i
at 270, 982 P.2d at 899, or whether the defendant wes convicted
of attempted murder of a police officer who was “acting in the
line of duty,” see Estrada, 69 Haw, at 212-13, 738 P.2d at 819.
The intrinsic/extrinsic distinction has been part of our case law
since 1976, see Huelsman, 60 Haw. 71, $88 P.2d 394, and, as the
attorney general observes, we indeed reiterated its principles as
recently as July 2007, see State v. Kekuewa, 114 Hawai'i 411,
421-22, 163 P.3d 1148, 1158-59 (2007).
3 i insic/exte:
distinction is no longer viable,
a. Sentencing procedure
Everything changed three months later. As Jess
observes, in Maugaoteca II, pursuant to the United States Supreme
Court's mandate and judgment vacating our prior decision in State
vs Mauggoteca, 107 Hawai'i 399, 114 P.3d 905 (2005)
(Maugactegs I), we reconsidered the defendant's appeal in light
of Cunningham. Maugactegs II, 115 Hawai'i at 433, 168 P.3d
at 563, We explained that, because the Cunningham majority
flatly rejected the bifurcated approach proposed by Justice
Kennedy in his dissenting opinion for sixth amendment purposes,
Cunningham, 549 U.S. at __, 127 S. Ct. at 869 n.14; id
at 872-73 (Kennedy, J., dissenting), it would likewise reject the
intrinsic/extrinsic distinction that we have long followed. See
Maucaotegs I, 115 Hawai'i at 442-43, 445, 168 P.3d at 572-73,
20
"+ FOR PUBLICATION IN| WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER ***
575; see also id. at 453, 168 P.3d at 583 (Acoba, J.,
dissenting). We thus acknowledged that, in light of Cunningham,
except for prior convictions, multiple convictions, and
admissions, “any fact, however labeled, that serves as a basis
for an extended term sentence must be proved beyond a reasonable
doubt to the trier of fact.” Maugaoteca I1, 116 Hawai'i at 447 6
n.15, 168 P.3d at $77 & n.15 (majority opinion) (emphasis added) .
Before Mauggoteca II, we viewed aggravating intrinsic,
but not extrinsic, facts as “elemental” to the offense for
constitutional purposes. See State v, Kaua, 102 Hawai'i 1,
11-12, 72 P.3d 473, 483-84 (2003); see also Tafova, 91 Hawai'i
at 271-72, 982 P.2d at 900-01; cf. Apao, 59 Haw. at 634, 586 P.2d
at 257. The elimination of the intrinsic/extrinsic distinction
dictates that aggravating extrinsic facts are now likewise
elemental. To illustrate this paradigm, extrinsic facts that
give rise to enhanced sentencing comprise an element of what
amounts to the “enhanced” version of the offense. Indeed, in
explicating the Apprendi rule, the six-member Cunningham majority
quoted with approval the observation, expressed in Harris, 536
U.S. at 557 (plurality opinion), that “Apprendi said that any
fact extending the defendant's sentence beyond the maximun
uthori ze urv's verdict would have been consider
amen avated crime ~~ and thus the domain of the
jury -- the Bil) of Riohts.’"* 549 U.S. at
Given the Cunoincham analysis, extrinsic enhancers effectively become,
for constitutional purposes, atvencant circumstance: of the “aggravates”
offense. CE. HRS § 702-205 (1953) ("The elenente of an offense are such (1)
Gonduet, (Z) attendant circumstances, end (3) results of conduct, as +
icontinved
21
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1 127.8. Ct. at 864 (emphases added); gee also Harris, 536
U.S. at $57-58 (plurality opinion) ("Congress may not manipulate
the definition of @ crime ina way that relieves the Government
of its constitutional obligations to charge each elenent in the
indictment, submit each element to the jury, and prove each
element beyond a reasonable doubt. Mcitillan{ v. Bennsvivania,
477 U.S. 79 (1986),] and Apprendi asked whether certain types of
facts, though labeled sentencing factors by the legislature, were
nevertheless ‘traditional elenents’ to which these constitutional
safeguards were intended to apply.” (Quoting Patterson v, New
York, 432 U.S. 197, 211 n. 12. (1977).) (Citations omitted.)
Harris, $360.5. at 567 ("Read together, McMillan and Apprendi
mean that those facts setting the outer limits of a sentence, and
of the judicial pover to impose it, are the elements of the crime
of the constitutional analvsie.” (Emphases
added.)): Apprendi, $30 U.S. at 476 ("Any possible distinction
between an ‘element’ of a felony offense and » ‘sentencing
factor’ was unknown to the practice of criminal indictment, trial
by jury, and judgment by court as it existed during the years
surrounding our Nation’s founding.” (Footnote omitted.)).
Correlatively, and by virtue of Cunninsham, the
offenses of first degree robbery and unauthorized control of a
propelled vehicle, with which the complaint charged Jess in the
(., seontinued)
(ajze specified by the definition of the offense .. . ."); State vs Aivchi,
109 Nana's 25, 227, 123 P.3d 1210, 1222 (2008) (**[A)ny ckreumatance:
Gefined in an offense that are neither conduct nor the results of candy
would, by default, constitute attendant circumstances elements of the
defense.’ (Quoting State v Moser, 107 Hawet't 159, 172, 121 P36 58, 67
(pp. 2005).1)
22
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present matter, are transformed into lesser included offenses of
“aggravated crimes” because, in the words of the Hawai'i Penal
code, the “simple” offense will always be “established by proof
of the sane or less than all the facts required to establish the
conmission of the [enhanced or ‘aggravated’) offense.” See HRS
§ 701-109(4) (a) (1993) ("A defendant may be convicted of an
offense included in an offense charged in the indictment or the
information. An offense is so included when... (i)t is
established by proof of the same or less than all the facts
required to establish the commission of the offense charge
State v. Jumila, 87 Hawai'i 1, 3, 950 P.2d 1201, 1203 (1998)
(holding that second degree murder was, as a matter of law, an
vs
included offense of carrying or use of a firearm in the
commission of a separate felony, because the felony underlying
the firearm statute “will always be ‘established by proof of the
sane or less than all the facts required to establish the
commission of the’ [firearm] offense” (quoting HRS
§ 701-109(4) (a))), overruled on other grounds by State v.
Brantley, 99 Havei'i 463, 469, 56 P.3d 1252, 1258 (2002); State
vs Van den Berg, 101 Hawai'i 187, 191, 65 P.3d 134, 138 (2003)
("[T]he core legal analysis in . . . Jumila is still good
Apprendi, §30 U.S. at 506 (Thomas, J., concurring)
(observing that, “if a statute increased the punishment of
common-law cxime, whether felony or misdemeanor, based on some
fact,” then that “fact was an elenent of a new, aggravated grade
of the common-law crime simply because it increased the
punishment of the common-law crime” and that “the common-law
23
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crime was, in relation to the statutory one, essentially just
like any other lesser included offense”), The “aggravated
crimes” at issue in this case, to wit, robbery in the first
degree and UCPV committed by a persistent and/or multiple
offender as to whom “an extended term of imprisonment is
necessary for the protection of the public,” Act 1, section 3,
are “aggravated” versions of “simple” first degree robbery and
“simple” UCPV, because the necessity finding is the additional
“element of [the] aggravated crime.” See Cunningham, $49 U.S. at
1 127.8. Ct. at 864, Conversely, “simple” robbery and
“simple” UCPV are lesser included offenses of their “aggravated”
versions. See id.; HRS § 701-109(4) (2); Apprendi, 530 u.s.
at 506 (Thomas, J., concurring).
b. Charging procedure
‘The prosecution and the attorney general argue that,
although this court has abandoned the intrinsic/extrinsic
distinction with respect to sentencing procedure, we should
retain the distinction with respect to charging procedure. They
urge, in substance, that extrinsic enhancers need not, for
purposes of article I, sections 5 and 10 of the Hawai'i
Constitution, be viewed as elements of an aggravated crime. The
attorney general contends that this court need not fully abandon
its intrinsic/extrinsic distinction, especially because the
distinction does not require extrinsic facts to be alleged in the
charging instrument, precisely because those facts “are wholly
extrinsic to the specific circumstances of the defendant's
offenses and therefore have no bearing on the issue of guilt per
‘+4 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER
sg." Schroeder, 76 Hawai'i at 528, 680 P.2d at 203 (emphasis
omitted). It is clear, however, that Cunningham is unwavering in
its insistence that the determinative issue in deciding whether a
given fact is elemental is not whether the fact is enmeshed in,
or intrinsic to, the elements of the underlying offense, see 549
U.S. at __n.14, 127 S. Ct. at 869 n.14, but, rather, whether it
simply increases the standard maximum punishment for the offense,
see id at __, 1278. Ct. at 860.
The intrinsic/extrinsic distinction is also rooted in
the belief that having the jury find extrinsic facts “would
require admission of potentially irrelevant and prejudicial
evidence and contaminate the jury's required focus on the
specific elements of the offense charged.” Tafoya, 91 Hawai'i
at 271, 982 P.2d at 9007 see also id. at 273 n.15, 274 & n.17,
902 n.15, 903 4 n.17. After Cunnincham and Mauazoteca 12,
however, the jury is constitutionally required to be the fact-
finder with respect to extrinsic enhancers, because such facts
are indeed elements of the offense for sentencing purposes.
Nevertheless, the prosecution contends that, while this court’s
concern in Tafoya was directed at preventing the contamination of
ate
“jury's required focus,” see 91 Hawai'i at 271, 982 P.2d
at 900, the same concern would arise if a grand jury were faced
with extrinsically aggravating factual allegations. The
prosecution concedes that 2 grand juzy proceeding could
potentially be bifurcated to prevent such contamination but,
nonetheless, asserts that such a procedure would unnecessarily
complicate the proceeding and be at odds with ite purposes, which
25
FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REFORTER +++
is not “‘an adversary h
ring in which guilt or innocence of the
accused is adjudicated’ but, rather, “an ex parte investigation
to determine whether 2 crime has been committed and whether
criminal proceedings should be instituted against any person.'”
State v. Bell, 60 Haw. 241, 243-44, $89 P.2d $17, 519 (2978)
(quoting United states v. Calandra, 414 U.S. 338, 343-44 (1974).
We observe, as a preliminary matter, that the jury
contamination issues that the prosecution identifies would not
arise in instances, such as the present case, where the defendant
is charged by complaint or upon information, both of which are
permitted by article I, section 10 of the Hawai'i Constitution.
See supra note 12. When the prosecution does opt to charge by
indictment, article I, section 10 requires that the grand jury
find probable cause as to every element of the offense of which
the defendant may later be convicted at trial. See Israel, 78
Hawai'i at 73, 690 P.2d at 310
[g}ust as the State must prove
beyond a reasonable doubt all of the essential elements of the
offense charged, the State is also required to sufficiently
allege them . (Quoting State v. Tuya, 3 Haw. App. 287,
293, 649 P.2d 1180, 1184-85 (1982).)); State v. Stan's Contr,
Anc., 111 Hawai'i 17, 32, 137 P.3d 331, 346 (2006) (“AN
indictment must enable a grand jury to determine that probable
cause exists that the accused committed a violation of the
charged offense . . . as to the elements of the
offense . . . ."); Apao, $9 Haw. at 635 & n.5, 586 P.2d at 257 &
n.S (observing that the fifth amendnent’s grand jury clause
requires that an indictment “‘make clear the charges so as...
26
+4 FOR PUBLICATION IN WEST’ § HAWA2"Z REPORTS AMO PACIFIC REPORTER
to avoid [the defendant’ s] conviction on facts not found, or
Perhaps not even presented to, the grand jury that indicted him'”
(quoting Radetsky, 535 F.2d at 562)). Because the petit jury
must find certain extrinsic elemental facts as 2 prerequisite to
convicting a defendant of the enhanced (i.e., “aggravated”)
version of an offense, see Maugactegs II, 115 Hawai'i at 447, 168
P.3d at $77, it necessarily follows that, during the grand jury
Proceeding, the jury should likewise be required to find probable
cause with respect to such elemental facts. See Stirone v
United States, 361 U.S. 212, 217 (1960) (observing that the
defendant has “substantial right to be tried only on charges
Presented in an indictment returned by @ grand jury”). By
ensuring that every element of an offense is supported by a
finding of probable cause, the grand jury performs its
“historical role of being a safeguard to protect citizens against
unfounded criminal prosecutions.” See State v. 0’Daniel, 62 Haw.
518, 520, 616 P.2d 1383, 1386 (1980); see also Bell, 60 Haw.
at 243, 589 P.2d at 519 ("[T]he grand jury's responaibilitis
include both the determination of whether there is probable cause
to believe that 2 crime has been committed and the protection of
citizens against unfounded criminal prosecutions.”). To carry
out its function, we believe that the grand jury must review the
evidence supporting all elements of an offense, including
extrinsic enhancers, logistically problematic as the process may
be. United States v, Italiano, 837 F.2d 1480, 1462 (11th Cir.
Of course, as we have noted, consistent with erticle 2, section 10 of
‘the Hawe'l Constitution, the prosecution i free, as in the present matter,
(continued...)
2
‘+4 FOR PUBLICATION TN MEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER
1988) ("*{A] grand jury can perform its function of determining
probable cause and returning a true bill only if all elements of
the offense are contained in the indictment.’” (Quoting United
States v. Outler, 659 F.2d 1306, 1310 (11th Cir. 1981), overruled
on other grounds by United states v, Steele, 147 F.3¢ 1316, 1317
(ith cir. 1998).)).
In this connection, we note that the United States
Supreme Court declared in Jones that “*any fact (other than prior
conviction) that increases the maximm penalty for a crime must
be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt.'” Tafoya, 91 Hawai'i at 273 n.15, 982
P.2d at 902 n.15 (quoting Jones, 526 U.S. at 243 n.6). Although
the indictment rule in Jones is grounded in the fifth anendnent’s
grand jury clause, see Haviland, 467 F.3d at $33, which has not
been applied to state prosecutions, see Alexander, 405 U.S.
at 633, article I, section 10 of the Hawai'i Constitution was
patterned after its federal counterpart, see 1 Constitutional,
Convention of Hawaii 164, 243, 420 (1960) (explaining that
article I, section 9, which was ultimately codified as section 8
(the predecessor to article 1, section 10), “incorporates the
first three clauses of the Sth Amendment of the Federal
Constitution”). To be sure, article I, section 10 of the Hawai'i
Constitution affords the prosecution more charging mechanisms
than ite federal analogue, insofar as article 1, section 10
M¢. .,continued)
to circumvent the grand Jury altogether by charging a defendant via complain’
Ye adaiticn, whan the prosecution decides to go forware by way of indictment,
a’biturcated grand jury proceeding is possible.
28
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permits the prosecution to charge by indictment, complaint, or
information, see supra note 12, whereas the fifth amendment only
allows charging by indictment, see supra note 9. Nevertheless,
we do not (and very likely may not, cf. State v, Texeira, 50 Haw.
138, 142 0.2, 433 P.2d 593, 997 n.2 (1967) (recognizing that the
courts of this state must “afford defendants the minimum
protection required by federal interpretations of the Fourteenth
Amendment to the Federal Constitution”)) interpret the plain
language of article I, section 10 to require the inclusion of any
less notice in a charging instrument than that which is
guaranteed by the fifth amendment. Consequently, the fact that
the federal courts do not recognize any distinction between
intrinsic and extrinsic enhancers under the federal grand jury
clause, see Cotton, 535 U.S. at 627 (citing Apprendi, 530 U.S.
at 490) (quoting Jones, 526 U.S. at 243 n.6))7 ef. Cunningham,
549 U.S. at __n.14, 127 8, Ct, at 869 n.14, is “highly
persuasive” in shaping our interpretation of article I,
section 10 of the Hawai‘i Constitution. See Harada v. Burne, 50
Haw. 528, 532, 445 P.2¢ 376, 380 (1968) (holding that, although
the seventh amendment’s civil jury trial right does not apply to
the states, the Hawai'i counterpart in article I, section 10 of
the Hawai'i Constitution was patterned after the federal
provision and, therefore, “the interpretation of [that]
provision{] by the federal courts are deemed to be highly
persuasive in the reasoning of this court”).
29
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Given the Cunningham imperative regarding the elenental
character of Apprendi enhancers, the intrinsic/extrinsic
distinction has lost its viability to the extent that it governs
charging procedure and, therefore, we decline to follow it any
further. Because the intrinsic/extrinsic distinction no longer
serves to quality the rule of Apao and Estrada, it follows that
the rule now applies across the board both te intrinsic and
extrinsic enhancers. In short, it {s now clear that extrinsic
enhancers, like intrinsic enhancers, are “essential elements” of
the “aggravated” version of the offense. Sea Apao, 59 Haw.
at 634, S86 P.2d at 257; Cunningham, $49 U.S. at __n.14, 1278
Ct. at 864 (quoting Harris, 536 U.S. at 556-87 (plurality
opinion) }; Mausacteaa Ii, 115 Hawai'i at 450, 168 P.3d at 580
(explaining that Cunningham, “by rejecting the
intrinsic/extrinsic distinction, essentially reinstates the rule
asserted in Estrada for both intrinsic and extrinsic facts”
(emphasis in original) (citation omitted)). Accordingly, we hold
that a charging instrument, be it an indictment, complaint, or
information, must include all “allegations, which if proved,
would result in the application of a statute enhancing the
penalty of the crime committed.” pac, 59 Haw. at 636, S86 P.2d
at 258 (footnote and emphasis omitted); accord Estrada, 69 Haw.
at 230, 738 P.2d at 629.""
the prosecution and the attorney general do not challenge the validity
of the rule of Apso and Estrads but, instead, cite cases fron jurisdictions
that have interpreted their respective "grand jury" provisions as not
Fequiring the inclusion of facts giving rise to enhanced sentencing in the
charging instrument. These courts reason that the disclosure requirenents
lnder their rules of criminal procedure supply sufficient notice to the
(eontdnved...)
30
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4. our d
‘sonal 706~ or HREP
Rule 7d) into question.
The attorney general argues that a holding that
extrinsic facts foundational to enhanced sentencing must be
alleged in the indictment would require us to rule HRS § 706-664,
as amended by Act 1, to be unconstitutional. Although we are
(, scontsnued)
defendant of the prosecution's intention to rely on those facts. See, e.g
McKansy vw, Foreman, 100 P.34 16, 22 (Ariz. 2004) ("It thus becenes ferefenact
that eggravators are not specified in the indictment or infermetion based en
evidence of probable cause presented to a grand jury oF magistrate because the
defendant will have been given anpie notice under the Arizona Rules of
Criminal Procedure "); Beans vs State, 66 A.2d $62, 575 (We. 2005)
{holding that aggravating factors ate not required to be alleged in the
Andictaent under the indictment provision of ‘the Maryland Declaration of
Rights, because “[t]he point ef that provision is to give fair and sdequate
notice, ana that notice may come from statutory: [n]otice,” which ta
Fequired thirty days before trial) 141. 8.W.36 589, 561-62
(Tenn. 2004) (holding that the defendant Te not entitled te notice’ in the
indictaent, under the Tennessee inaicteent clause, because the notice
Fequirenents are satisfied by the state's rules of criminal procedure). Th
courts acknowledge that aggravating factors may be the elenentel vo an offense
for purposes of sentencing, but explain that their case law does not require
that. sentence-enhancing facts be alleged in the indictment, and they
consequently decline to inpose such 3 requirenent. See Uskaney, 100 P.3¢
at 21) Evang, 666 2.26 at 575, 515-76 e238 SH, 38.725, 722 &
1.21 (Tex. Crim. App. 2007). ‘Unlike the foregoing illustrative jurisdictions,
we have interpreted the Howoi's Constitution a requiring that the charging
Instrument include a1l'“allegations, which if proved, would resuit in the
application of a statute enhancing the penslty of the crime committed.” Ansa,
5S aw. at 636, S66 F.26 at 256 (footncte nd emphasis emitted); gecoid
Estrada, 69 Haw. at 230, 738 F.20 st 629. ‘Recordingly, the cases cited by the
Prosecution and the attorney general are inconsistent with ovr precedents’ end
Ne therefore decline to follow then.
Yn an WRAP 26(3) citation of supplemental authority, the attorney
general cites the Intermediate Court of Appeals’ recent decision in cutsingex,
2008 wy 257175, at *1, 17-°18, in which the Ica concluded, inter gliar thee
fenkancing facts need hot be alieged in the charging instruments The ica
Feasoned that, “[a]ithough Apprendi and its progeny require that sentencing
Gihancing facts be treated as the functional equivalent of elements of an
offense for purposes of the Sixth Anencment jury-trisl right, . such facts
are not elenents for purposes cf what must be pied in en indictment oF
complaint.” 16. at *16; gee algo ig. st “17-18 (auggesting ther extrinsic
enhancers are not elenentai).. AS we heve explaines supra, however, extrinsic
‘enhancers must be alleged in the charging instrument, because they’ ere indeed
elenental for charging purposes under article 1, sections 5 and 10 of the
Hawai'i Constitution. we therefore overrule Cutsinger to the extent thee its
ansiysis is inconsistent with our om.
31
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unable to discern from the attorney general's brief the specific
language of HRS § 706-664 to which he is referring, see Hawaii
Ventures, LIC v. Otaka, Inc., 114 Hawai'i 438, 478, 164 P.3d 696,
736 (2007) (*[Aln appellate court is net cbliged to address
matters for which the appellant has failed to present discernible
arguments."), we presume that he is alluding to paragraph (2),
which provides in relevant part that “{nJotice of intention to
seek an extended term of imprisonment under section 706-662 shall
be given to the defendant within thirty days of the defendant's
arraignment.” See supra note $. This provision is not
incompatible with our decision today because there is no mutual
exclusivity between the necessity of alleging extrinsic elemental
enhancers in the charging instrument and the subsequent statutory
notice provision set forth in HRS § 706-664(2). Merely charging
the “aggravated” offense does not obligate the prosecution to
prove it to the contrary, the prosecution can always opt to
prove the lesser included, unenhanced version of the offense.
Cf. Whiting v. State, 88 Hawai'i 356, 362, 966 P.2¢ 1082, 1088
(1998) ("Since recklessness will be satisfied by proof that the
defendant acted intentionally or knowingly, a charge of
manslaughter could be employed where a prosecutor, in the
prosecutor’s discretion, did not wish to push for a murder
conviction.” (Quoting commentary to HRS § 707-702.) (Emphasis
omitted.)); State v, Holbron, 80 Hawai'i 27, 44, 904 P.2d 912,
929 (1995) (“Within constitutional limits, it is alwavs the
prosecution's prerogative to undercharge any offense for whatever
reason it deems appropriate . . . .” (Emphasis added.)).
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Moreover, the plain language of HRS § 706-664(2) simply does not
say that notice of intention to seek an extended term of
imprisonment under HRS § 706-662 “shall not be included in the
charging instrument.” Indeed, this provision is directed
exclusively to sentencing procedure; it is completely silent with
respect to charging procedure.
In the next section of the attorney general’s brief, he
asserts that a rule requiring that extrinsic enhancers be alleged
in the charging instrument would render HRS § 706-664(2), as
amended, unconstitutional to the extent that it provides that
“[a] defendant previously sentenced to an extended term under 2
prior version of this chapter shall be deened to have received
notice of an intention to seek an extended term of imprisonment.”
See supra note 5. That provision also requires that the
defendant receive notice within thirty days of his arraignment.
See id. However, notice, constructive or otherwise, of the
prosecution's intention to seek an extended term of imprisonment
within thirty days of his arraignment is not a substitute for the
constitutional requirement that an indictment, complaint, or
information allege the elements of the “aggravated crime”
justifying the imposition of an extended term of imprisonment.
‘The latter derives from article I, sections 5 and 10; the former
simply satisfies the statute. Thus, we do not read the statute’s
constructive notice provision as undertaking to cure the (as of
then unknown) constitutional defects in the charging instruments
of defendants who were previously sentenced to extended terms but
33
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HAGAI'S REPORTS AND PACIFIC REPORTER *#¢
not charged with the “aggravated crimes” to which the extended
terms pertain.
In any event, such a reading would contravene the
doctrine of “constitutional doubt,” which dictates that, “‘where
a statute is susceptible of two constructions, by one of which
grave and doubtful constitutional questions arise and by the
other of which such questions are avoided, our duty is adopt the
latter,’” In the Interest of Doe, 96 Hawai'i 73, 81, 26 P.3d 562,
570 (2001) (quoting Jones, 529 U.S. at 857). Pursuant to
article I, sections § and 10, all of the elements of an offense
must be alleged in the charging instrument, and the prosecution’ s
failure to do so is not cured or otherwise excused by the fact
that the accused was actually or constructively aware of the
circumstances that might give rise to an omitted elenent. See
Israel, 78 Hawai'i at 73, 890 P.3d at 310 (observing that the
requirement that the instrument must allege all of the essential
elements of the offense “*is not satisfied by the fact that the
accused actually knew them and was not misled by the failure to
sufficiently allege all of them’” (quoting Zuua, 3 Haw. App.
at 293, 649 P.2d at 1184-85). Interpreting HRS § 706-664(2) as
purporting to charge an element of an “aggravated crime” by
constructive notice would cause the statute to run afoul of the
guarantee, embedded in article I, sections 5 and 10, of actual
notice in the charging instrument. We therefore decline to read
HRS § 706-664(2) as attempting to charge defendants by
constructive notice.
34
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Finally, the attorney general maintains thet the
elimination of the intrinsic/extrinsic distinction would render
HREP Rule 7(d), entitled “[nJature and contents [of an
indictment, information or complaint],” invalid in many cases
because, according to the attorney general, the rule does not
require allegations that support an extended term to be pled in
the charging instrument. HRPP Rule 7(d) provides in relevant
part that “(t]he charge shall be a plain, concise and definite
written statement of the essential facts constituting the offense
charged,” but “need not contain a formal conclusion or any other
matter not necessary to such statement.” Like HRS § 706-664(2),
as amended, the rule is perfectly compatible with the proposition
‘that enhancing elements of an “aggravated crime,” giving rise to
an extended prison term, must be pled in the charging instrument.
Precisely because Cunningham decrees that factual enhancers that
support an extended term of inprisonnent are elements of an
“aggravated crime,” see supra section II1.A.3, we construe HRPP
Rule 7(d) to require the allegation of such elements if the
prosecution decides to seek a conviction of that offense.
In short, we disagree with the attorney general that
our decision calls the constitutionality of HRS § 706-662(2) or
HRPP Rule 7(b) into question.
5. 4 ith respec: nstrument
‘and, ther ‘appl.
wesg.
The attorney general argues that any decision mandating
that all Apprendi /Cunningham enhancers -- whether intrinsic or
extrinsic -~ be alleged in all charging instruments seeking an
‘s+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER ***
extended prison term pursuant to HRS § 706-662, as amended, see
supra section III.A.3.b, should be limited to purely prospective
application.
‘The question of prospective application arises when
this court announces @ nev rule. See State v. Ketchum, 97
Hawai'i 107, 123 n.26, 34 P.3d 1006, 1022 n.26 (2001) (“IE . . -
a judicial decision announces a ‘new rule,’ then this court may,
An its digeretion, determine that the interests of fairness
preclude retroactive application of the new rule.”); James B
Beam Distilling Co. v. Georaia, 501 U.S. 529, 534 (1991) (“It is
only when the law changes in some respect that an assertion of
nonretroactivity may be entertained, the paradigm case arising
when a court expressly overrules a precedent upon which the
contest would otherwise be decided differently and by which the
parties may previously have regulated their conduct."). In the
present matter, the rule of Apao and Estrada was previously
qualified by the intrinsic/extrinsic distinction, which did not
require, and indeed counseled against, the inclusion of extrinsic
facts in the charging instrument. See Tafoya, 91 Hawai"i at 271,
962 P.2d at 900; see also supra section III.A.3.b. In light of
Cunningham, however, we have recognized today that the
intrinsic/extrinsic distinction is no longer viable for charging
purposes. See supra section III-A.3.b. Aside from footnote 19
of our Maugaotega If opinion, see 115 Hawas't at 449 n.19, 168
P.3d at 579 n,19, this case represents the first instance in
which we have questioned the ongoing viability of the
intrinsic/extrinsic distinction in the context of charging
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procedure. See supra section I11.A.3.a, Indeed, even the
dissenting opinions that previously challenged the validity of
the intrinsic/extrinsic distinction attacked the distinction from
the standpoint of the sixth amendment right to a jury trial
regarding extended term sentencing and not from the standpoint of
proper charging procedure sufficient to satisfy article 1,
sections 5 and 10 of the Hawai'i Constitution. See state
Rivera, 106 Hawai'i 146, 167, 102 P.3d 1044, 1065 (2004) (Acoba,
J., dissenting) (asserting that “‘the State's sentencing
procedure [in this case] did not comply with the Sixth
Amendment,’ and, thus, the sentence imposed on [the defendant]
‘is invalid’ (quoting Blakely v. Washington, 942 U.S. 296, 305
(2004)) (brackets in original)); Maugaotesa 1, 107 Hawai'i
at 410-11, 114 P.3d at 916-17 (Acoba, J., dissenting); State v
White, 110 Hawai'i 79, 97, 129 P.3d 1107, 1125 (2006) (Acobs, J.,
dissenting). Accordingly, the rule we announce today, which
liberates the rule of Apao and Estrada from the gloss imposed by
Huelsman, Schroeder, and Tafova, constitutes a new rule.’
Because we are announcing a new rule, we must decide
whether the rule should be given retroactive effect. “Although
judicial decisions are assumed to apply retroactively, such
application is not automatic,” because “‘the Constitution neither
prohibits nor requires retrospective effect.’" state v. Peralto,
the dissent asserts that “it would be inaccurate to characterize the new
role here as being grounded solely in our state law,” because the
role ‘cusly articulated in Jones. Olesenting opinion et 34 ne2S; ef.
Ag. at (4-45, Rs we explained gupra in section I11.A.1, however, the rule it
otiea 1s limited to federal prosecutions. Therefore, the new tule we announce
1 Sections 8 snd 10 of the
tcasy 8 bases solely sn article
Const tution
3
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95 Hawai's 1, 6, 18 P.3d 203, 208 (2001) (quoting State vw
Santiago, 53 Haw. 254, 268, 492 P.2d 687, 665 (1971)). We are
therefore “[f]ree to apply decisions with or without
retroactivity,” Santiago, $3 Haw. at 268, 492 P.2d at 665, and
may give a new rule (1) purely prospective effect, which means
that the “'rule is applied neither to the parties in the
law-making decision nor to those others against or by whom it
might be applied to conduct or events occurring before that
decision,’ State v, Garcia, 96 Hawai'i 200, 208, 29 P.3d 919,
927 (2001) (quoting James B, Beam Distilling, 501 U.S. at 536);
(2) limited or “pipeline” retroactive effect, under which the
rule applies to the parties in the decision and all cases that
are on direct review or not yet final as of the date of the
decision, see State v. Colbert, 918 A.2d 14, 20 (N.J. 2007);
State v. Fortin, 843 A.2d 974, 1036 n.18, motion for
clarification granted by 643 A.2d 974 (NW.J. 2004); cf. Garcia, 96
Hawai" at 214, 29 P.3d at 933 (giving a rule limited prospective
application, because the rule had previously been applied in the
decision that originally announced the rule); State v. Hanaoka,
97 Haw. 17, 20, 32 P.3d 663, 666 (2001); or (3) full retroactive
effect, under which the rule applies “*both to the parties before
the court and to all others by and against whom claims may be
pressed,’” Garcia, 96 Hawai'i at 208, 29 P.3d at 927 (quoting
Janes B. Beam Distilling, 501 U.S. at 535)." In deciding which
A fourth alternative ie to accord # new rule selective retroactive
effect. which neans that the court nay apply the “role in the case in which it
Te pronounced, then return to the old one with respect to all others arising
on facts predating the proncuncenent."" Garis, 96 Sawai at 208, 23 F.3d
foont ined...)
38
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option is appropriate, we “‘weigh{] the merits and demerits of
retroactive application of the particular rule,’” Beralto, 95
Hawai'i at 6, 18 F.3d at 208 (quoting Santiago, 53 Haw. at 268,
492 P.2d at 665, in light of “*(e) the purpose of the newly
announced rule, (b) the extent of reliance by law enforcement
authorities on the old standards, and (c) the effect on the
administration of justice of a retroactive application of the new
standards," id. at 7, 18 P.3d at 209 (quoting Santiago, $3
Haw. at 268-67, 492 P.2d at 665-66).
“Primary consideration is given to the purpose for
which the new standards are adopted.” Santiage, 53 Haw. at 269,
492 P.2d at 666. Retrospective application is generally provided
to “[r]ules designed to protect “the very integrity of the fact-
%(.. .continued)
at $27 (quoting James B. Beam Distilling, $01 U.S. at 537), We have, however,
Geclines te follow this approach, because “ ‘selective application of new rules
Violates the principles of treating similarly situated sefendants the same.’=
Ja, at 214, 25 Prse at 933 (queting State v. Jackson, @) Hawai"! 39, 51,912
Piza7, 83 (1998))
% tn a BRAP 28(5) citation of supplemental authority, Jess refers us to
No. 06-8273, 2008 U.s. LEXIS 2012, at #8, #33 (Uses
Feb. 20, 2006), in which the United States Suprene Court held that, when
federal court announces a new rule of criminal procedure, although’ the
retroactive effect of that new rule is Limited to those cases that are not yet
final in the federal courts, gee Teague t. lane, 489 U.S. 268, 204-05 (1969),
state courts are nonetheless free to give the new federai rule broader
retroactive effect. We do not believe that either Danforth of Jesque se
perticularly germane to our analysis regarding wether the new charging rule
Thet we announce today shovld apply retroactively, because the rule is
Grounded not in the United States Constseution but, rather, in article t,
Sections 5 and 10 of the Hawai'l Constitution. Se@ supra section T1I-A
Therefore, we are guides by ovr cun sndependent state law jurisprudence Sn
determining whether the rule applies retvosctively. See State v. Nsuata, 76
Hawai'l 360, 378, 678 P.24 €99, 717 (1994) [acknowledging thet the doctrinal
basis of this court's retroactivity Jurisprudence, Limmetter v. Walker, 38)
U:s. 618 (1965), has bean overruled by the United’ States Supreme Court but,
nevertheless, continuing to follow Linkletter’s vnore flexible test.» . when
Getermining whether to retrosctively apply Gecieions of state law made by this
court"); aga also Garcia, 96 Hawai at 212, 29 F.3d at 931.
39
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finding process,’ id. (quoting Linkletter v, Walker, 361 U.S.
618, 639 (1965), overruled by Griffith v, Kentucky, 479 U.S. 314
(1987), as where the “major purpose” of the rule “is to overcone
an aspect of the criminal trial that substantially impairs its
truth-finding function and so raises serious questions about the
accuracy of guilty verdicts in past trials,” Williams v. United
States, 401 U.S. 646, 653 (1971), cited in Santiage, 53 Haw.
at 665-66, 492 P.2d at 268-29. For present purposes, the
intrinsic/extrinsic dichotomy, which was the law in this
jurisdiction until Maugaoteaa II, did not require the inclusion
of extrinsic enhancing facts in the charging instrument. see
Tafova, 91 Hawai'i at 271, 982 F.2d at 900. The defendant was,
however, provided by statute with written notice and the right to
hear and controvert the evidence against him and to offer
evidence on his behalf with respect to the imposition of extended
prison terms, See HRS § 706-664 (1993), supra note $. The
extrinsic enhancers were found by the court, see ids, and were
subject to the “procedural standards . . . applicable to ordinary
sentencing,” see Huelsman, 60 Haw. at 80, 588 P.2d at 400. In
Light of these provisions, we do not believe that the
Antrinsic/extrinsic distinction substantially impaired the
criminal trial’s truth-finding function, so as to raise serious
questions about the accuracy of findings made by judges with
respect to extrinsic enhancers. See Williams, 401 U.S. at 653;
cf. Schriro v, Summerlin, 542 U.S. 348, 356 (2004) (concluding
that the holding in Bing, $36 U.S. 584, that the statutory
aggravators were effectively elements for federal constitutional
40
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purposes and thus had to be submitted to the jury as the trier of
fact and proved beyond a reasonable doubt, did not apply
retroactively, because Ring did not announce one of the
“watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding,’”
such that the Schriro Court could not “confidently say that
judicial factfinding seriously diminishes accuracy” (quoting
saffie ks, 494 U.S. 484, 495 (1990)) (emphasis omitted) ).
‘Thus, the purpose of the “new rule” announced today is not to
remediate an aspect of the criminal process that substantiaily
impairs its truth-finding function. Consequently, the purpose of
the new rule does not counsel that we should accord our decision
retrospective effect.
Furthermore, the prosecution has long relied on the
intrinsic/extrinsic distinction in charging defendants. In this
case, for example, the prosecution's failure to allege extrinsic
enhancers in its complaint against Jess fully conported with
Tafoya, which counseled that such facts should not be included in
the complaint, see 91 Hawai'i at 271, 982 P.2d at 900; see also
supra section II1.A.3.b. Obviously, the same holds true in
countless other cases. E.g., Maugaotecs Il, 125 Hawai'i at 435
1.3, 168 P.3d at S65 n.3 (observing that the indictments against
the defendant did not allege “that, if convicted, [the defendant]
could be subject to extended sentencing as a multiple offender
for whom extended terms of imprisonment were necessary for the
protection of the public”). Accordingly, the extent of law
enforcement’s reliance on the intrinsic/extrinsic distinction
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counsels in favor of limiting our decision to purely prospective
application. See Fortin, 843 A.2d at 1037 (concluding that the
court’s holding, which required that aggravating facts in capital
cases be alleged in the indictment, was limited to purely
prospective application, in light of the prosecution's reliance
on the court's previous ruling that such facts did not have to be
alleged).
Finally, the burden on the administration of justice
would be significant if our “new rule” applied retrospectively,
because our courts would be inundated with HRPP Rule 40 (2006)
petitions filed by defendants who were sentenced to extended
terms from as long ago as 1978, see Huelsman, 60 Haw. 71, SE8
P.2d 394, alleging that, because the extrinsic enhancers
foundational to their extended term sentences were not alleged in
their charging instrument, their extended sentences are therefore
invalid. See State v. Cummings, 101 Hawai'i 139, 143, 63 P.3d
1109, 1244 (2003) (holding that, aside from technical errors, the
omission of an essential element in the charging instrument is a
defect that is not one of mere form but is instead one of
substantive subject matter jurisdiction, which renders any
subsequent trial, judgment of conviction, or sentence a nullity,
and which is per se prejudicial); Russell v, Blackwell, 53 Haw.
274, 277-19, 492 P.2d 953, 956-57 (1972) (holding that @ rule
2 Seg BRPP Rule 40(a) (1) (2006) ("AE any tine but not prior to final
Judgment, any perecn may seek relief under the procedure set forth in this
Eula from the judgment of conviction, on the following grounds: (4) that. the
Judgment was cbteined ef sentence imposed in vsolation of the constitution of
ine United stetes or of the State of Hawai; [or] (11) thet the court wich
Fendeved the Judgment was without Jurisdiction over the person or the subject
matter... "(Spacing altered.i)
a2
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requiring the court to follow certain procedures in accepting a
defendant’s guilty plea did not apply retroactively, because such
application “would impose an awesome burden on the administration
of justice,” insofar as it would require that all guilty pleas
that were previously accepted in a manner that did not comply
with the new procedure be set aside)
In light of these considerations, we believe that the
Prosecution and the courts would be substantially prejudiced by
the retrospective application of the new rule we announce today,
and, therefore, we accord it purely prospective application. see
Garcia, 96 Hawai'i at 211, 29 P.3d at 930 ("*{w]here substantial
Prejudice results from the retrospective application of new legal
principles to 2 given set of facts, the inequity may be avoided
by giving the guiding principles prospective application only.‘”
(Quoting State v. Ikezawa, 75 Haw. 210, 220-21, 857 P.2d 593, 598
(1993).))7 State v, Tachibana, 79 Hawai'i 226, 238, 900 P.2d
1293, 1305 (1995) (holding that the new rule, which required that
the court conduct @ colloquy with a defendant to determine if the
defendant is freely and voluntarily waiving his right to testify,
only applied “prospectively to cases in which trial is not
completed until after the date of [the] decision”); Fortin, 843
A.2d at 1037; see also State v. Haanio, 94 Hawai‘ 405, 407, 16
P.3d 246, 248 (2001) (partially overruling State v. Kupau, 76
Hawai'i 387, 879 P.2d 492 (1994), and holding that, “in jury
trials beginning after the filing date of this opinion, the trial
courts shall instruct juries as to any included offenses having a
rational basis in the evidence without regard to whether the
a3
#4 FOR PUBLICATION IN WEST’ S HAWAI'E REPORTS AND PACIFIC REPORTER +4
prosecution requests, or the defense objects to, such an
instruction”); State v, Stanley, 60 Haw. 527, 533, 592 P.2d 422,
426 (1979) (holding that the new rule, which required that “a
family court order waiving jurisdiction must be appealed from
prior to the commencement of the criminal trial on the offenses
charged,” would apply “only prospectively,” in light of the
“absence of clear direction in (this court's} previous cases
regarding the proper time for challenging @ waiver order”); State
YeWarner, 58 Haw. 492, 501, 573 P.2d 959, 965 (1977) (holding
that a new jury instruction rule was “for prospective application
only”), overruled on other grounds by State v, Sawyer, 68 Hawai'i
325, 327, 966 P.2d 637, €39 (1998). Accordingly, all charging
instruments filed after the date of this decision, in which the
prosecution seeks enhanced sentencing, must include “allegations,
which if proved, would result in the application of a statute
enhancing the penalty of the crime committed.” Apao, 59 Haw.
at 636, 586 P.2d at 258 (footnote and emphasis omitted); accord
Estrada, 69 Haw. at 230, 736 P.2d at 829.
Because the new rule that we announce today is purely
prospective, it does not apply in this case. See Garcia, 96
Hawai'i at 208, 29 P.3d at 927. Therefore, the remaining
question is whether the complaint against Jess is defective under
the construction of the intrinsic/extrinsic dichotomy that was
the prevailing law when Jess was charged on March 2, 2000,
Jess challenges Count I of the complaint, which charged
him with first degree robbery as follows:
(on oF about the 23rd day of February, 2000, in the
Ciey and County of Noneluls, State of Hawais, BRIAN
JESS, while in the course of comnitting a theft and
“4
‘448 FOR PUBLICATION IN MEST’ HAWAI'I REPORTS AND PACIFIC REPORTER +++
while azned with a dangerous instrument, to wit, a
knife, dia threaten the imminent use of force against
Canh fran, 3 person who war present with the intent to
conpel acquiescence to the taking ef or escaping with
the property, thereby committing the offense of
Rotpery in the First Degree, in violation of [HRS
$) 08-840 2) (8) (12)
Jess asserts that the prosecution omitted certain intrinsic facts
from the complaint that the circuit court found in imposing an
extended term prison sentence. That sentence was, however,
vacated by the federal district court in the habeas proceeding.
See Jess 11, 2007 WL 1041737. Neverthe!
the prosecution
filed a second motion for extended term sentencing on remand.
Giving Jess the benefit of the doubt, we construe his argument as
attacking the allegations set forth in the declaration of counsel
filed in support of the second motion, to the extent that those
allegations are identical to the findings that Jess references in
his brief.??
In the declaration, the prosecution alleged in relevant
part:
30. _ [Jess] is 2 “persistent offender” and a
multiple offender” whose commitnent fer an extended
4 gage takes issue with the circuit court’s finding that his “behavior nas
‘eecalated as evidenced by his possession and threat to use ® knife suring the
‘Commission of the instant ropbery.” Jess asserts that this is an intrinsic
Allegation that was required to be plea in the complaint. The prosecution did
hot, however, rely op this allegation in its second motion for extended term
Sentencing. Furthermore, even assuming that the prosecution dis rely on
Jess's possession of and threat to use a knife, we believe that the complaint,
hen feed. in a connonsensicsl fashion, sufficiently slleged that fact, because
Itassereed that Jess, “while in the course of committing a theft and while
‘armed with 2 dangerous instrument, to wit, @ knife, did threaten the imminent
Use of force against Canh Tran.” ‘See Garkinaer ¥. State, @0 Hewai's 327, 330,
505 P.2d 1142, 1145 (1596) (explaining that the charging instrument "must be
Pead in # coniicn-sensical fashion in order to ascertain whether the material
aggravating circumstance has been sufficiently alleged therein to support the
imposition of enhanced sentencing’ (queting Schroeder, 76 Haw. at $20, 860
pita at 205)).
4s
‘+44 TOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
term is necessary for the protection of the public
because Of the following fect,
4.” jgess) bas failed to benefit from
the criminal justice systen.
fe: [Jess] has demonstrated @ total
disregaid for the rights of others and s poor
attitude toxard the law.
f. .. (Jess) has desonstrated = pattern of
criminality which indicates that he is likely to
be a recidivist in that he cannot conform hie
behavior £0 che requirenents of the law
9. Due to the quantity and seriousness
of [Jeae]"s past convictions and the serieusness
of the instant offences, (Jess) poser a serious
threat to the comunity and his long term
incerceration is necessary for the protection of
the public.
(Formatting altered.) ‘The allegations of paragraphs (d) through
(g) were not “‘enmeshed in'” the underiying elements of Jess's
first degree robbery and unauthorized control of a propelled
vehicle convictions, see Zafova, 91 Hawai‘i at 270, 982 P.2d
at 899 (quoting Schroeder, 76 Hawai'i at 528, 860 P.2d at 203);
to the contrary, they spoke to whether Jess's commitment for an
extended tern is necessary for the protection of the public based
upon Jess's behavior exhibited over time -- a subject that this
court had (until Maugactega i) held to be extrinsic to the
charged offenses and therefore extraneous to the allegations
necessary to the charging instrument, gee Rivera, 106 Hawai'i
at 152-54, 160, 102 P.3d at 1050-52, 1058 (holding that the
circuit court properly found, as an extrinsic fact, that the
defendant's “commitment for an extended term wes necessary for
the protection of the public"); Tafova, 91 Hawai'i at 275 n.19,
982 P.2d at 904 n.19 (“The finding whether an extended term of
imprisonment is necessary for the protection of the public, also
necessary for imposition of an extended term of imprisonnent
46
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Pursuant to HRS § 706-662(5), is not @ factual finding
susceptible to jury determination.” (Emphasis in original.)).
Accordingly, Jess’s argument is without merit.
Jess next claims that his enhanced sentence was sought
by the prosecution, and imposed by circuit court, in retaliation
for Jess's exercise of his constitutional right to a jury trial.
He asks us to adopt a rule imposing a presumption of
vindictiveness on the part of the prosecution and the circuit
court by analogizing to nunber of United States Supreme Court
decisions that mandate a presumption of prejudice and
vindictiveness when a harsher sentence is imposed following
appellate remand or a defendant's exercise of his right to a
trial de nove. See North Carolina v. Pearce, 395 U.S. 711
(1969), overruled on other grounds by Alabama v, Smith, 490 U.S.
794, 794 (1989)); Texas v. McCullough, 475 U.S. 134 (1986
Blackledge v. Perry, 417 U.S. 21 (1974).
The Pearce Court explained that “*{dlue process of
law. . . requires that vindictiveness against a defendant for
having successfully attacked his first conviction must play no
part in the sentence he receives after a new trial.” smith, 490
U.S. at 798 (quoting Pearce, 395 U.S. at 725); see also
McCullogh, 475 U.S. at 137-38. “*In order to assure the absence
of such @ motivation,” the Bearce Court held that, “‘whenever 2
judge imposes a more severe sentence upon a defendant after a new
trial, the reasons for him doing so must affirmatively appear.'”
Smith, 490 U.S. at 798 (quoting Pearce, 395 U.S. at 726).
“tOtherwise, @ presumption arises that a greater sentence hes
7
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER **¢
been imposed for a vindictive purpose... ./” Ids at 798-99
(quoting McCullough, 475 U.S. at 142 (quoting United States v.
Goodwin, 457 U.S. 368, 374 (1982))). The United States Supreme
Court adopted a similer rule in Blackledge “to guard against
vindictiveness by the prosecutor at the postconviction stage,”
Saith, 490 U.S. at 800 n.3, where an inmate who, after being
convicted of a misdemeanor charge of assault with @ deadly weapon
in state district court and exercising his statutory right to a
trial de novo in the superior court, was charged in the superior
court with felony assault with a deadly weapon. Elackledae, 417
U.S. at 22-23.
Nevertheless, the United States Supreme Court has
observed that, under the foregoing line of cases, “a mere
opportunity for vindictiveness is insufficient to justify the
Amposition of a prophylactic rule.” Goodwin, 457 U.S. at 384.
“*(T]he Due Process Clause is not offended by ali possibilities
of increased punishment upon retrial after appeal, but only by
those that pose a realistic likelihood of “vindictiveness.”"”
Smith, 490 U.S. at 800 n.3 (quoting Blackledce, 417 U.S. at 27);
see also id. at 799 (quoting Goodwin, 457 U.S. at 373). The
Goodwin Court held that “[t]he possibility that a prosecutor
would respond to a defendant’s pretrial demand for a jury trial
by bringing charges not in the public interest that could be
explained only as a penalty imposed on the defendant is so
unlikely that a presumption of vindictiveness certainly is not
warranted.” 457 U.S. at 384
mphasis in original). We believe
it is equally unlikely, as a universal matter, that 2 prosecutor
4a
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would respond to a defendant's exercise of his right to a jury
trial by filing 2 posttrial motion for extended term sentencing
that was both contrary to the public interest and explainable
only as an exercise in vindictiveness. We therefore decline to
create a prophylactic presumption that the prosecution and the
circuit court are retaliating against a defendant for exercising
his right toa jury trial whenever the prosecution seeks, and the
circuit court imposes, an extended term sentence.
8. “ 1
Bnd Ex Post Facto Issues
1. The prosecution
The prosecution argues that empaneling @ jury in the
present matter would be a proper exercise of the circuit court's
inherent power because the state has an interest in deterring
crime and the legislature, by enacting the original extended term
scheme, evinced its intent to protect the public from
particularly dangerous individuals. (Citing, inter alia,
Conmentary to HRS §§ 706-661 and 706-662; State v. Alvey, 67 Hew.
49, 97, 678 P.2d 5, 10 (1984).) It asserts that concluding that
the trier of fact may, under HRS § 706-662, be a jury rather then
the sentencing judge comports with this court’s precedent in
Tafoya, 91 Hawai'i at 271, 982 P.2d at 900, and that this court
has, in the past, concluded -- despite the plain language of the
statute assigning fact-finding responsibility to the court --
that a circuit court possesses the inherent power to conduct @
bifurcated trial in order to afford a jury the opportunity to
find facts necessary for the imposition of an extended term
sentence, citing State v. Janto, 92 Hawai'i 19, 34-35, 986 P.2¢
49
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306, 321-22 (1999). Indeed, the prosecution urges, this court
went further in Beralto when it concluded that, upon remand, the
trial court could empanel a new jury to make extended sentencing
findings pursuant to new procedural safeguards announced in State
vs Young, 93 Hawai'i 224, 999 P.2d 230 (2000). (Citing Peralte,
95 Hawai'i at 7-8, 18 P.3¢ at 208-10.) Similarly, the
prosecution maintains, the failure at Jess's first trial to
assign to the jury the task of considering the necessity finding
was a procedural error, correctable under Peralto by the trial
court’s empanelment of a new jury upon remand.
2. des
Jess argues that this court should not rewrite the
plain language of HRS $§ 706-661 and 706-662 to construe “the
court” to mean “the trier of fact” absent “compelling and
conclusive justification” which, he contends, is absent in the
present matter. He insists that consecutive term sentencing,
available pursuant to HRS § 706-668.5 (1993), provides an
adequate renedy for particularly dangerous defendants and is free
from constitutional infirmities.
Jess also asserts that precedent weighs against
assigning the prerogative of making the necessity finding to a
jury. He notes that this court has concluded in the past that
“extrinsic” facts -- such as the necessity finding -~ must be
found by the sentencing judge, not the jury, because extrinsic
facts are not, by their nature, part of the elements of the
charged offense and, hence, assigning their determination to the
jury would contaminate a jury’s proper focus. (Citing, inter
50
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alia, White, 110 Hawai'i at 84-85, 129 P.3d at 1112-13;
Maugaotega I, 107 Hawaii at 402, 114 P.3d at 908; Kaua, 102
Hawai'i at 12-13, 72 P.3d at 484-48; Tafoya, 91 Hawai'i at 271,
278 n.19, 962 P.2d at 900, 904 n.19.) He argues that rewriting
the statute to assign the necessity finding to the jury (1) could
“create due process and evidentiary problens for the defendant
that only a considered and integrated legislative statutory
overhaul may anticipate and solve” and (2) would conflict with
the legislative intent expressed through Act 230, see supra notes
3 and 4, and the analysis of the Judicial Council upon which Act
230 was grounded -- analysis that did not touch upon the jury
solution at all. (Citing Report of the Comittee to Conduct a
Comprehensive Review of the Hawai'i Penal Code at 271-27q (2005);
2006 Haw. Sess. L. Act 230, passim at 1012-13.) Rather, he
urges, this court should exercise restraint and await action by
the legisiature.
Finally, Jess asserts that this court cannot announce a
judicial reformation of the extended sentencing laws and then
apply that judicial decision to his case without violating his
rights to due process and protections against ex post facto
measures.* (Citing, inter alia, Haw. Const. art. I, $§ 5 and
3% agticle I, section 10 of the United States Constitution provides in
relevant part that “(no State shall... pags anys. . ax post facta Law
~ - -" (Underscoring added.) “This court hee previously neved that the
Hawai'i’ Constitution does not contain @ similar section, gee State v. Guidry,
208 Hawai'i 222, 235, 96 P.sa 242, 256" (2008) (notang thet HS $173. which
provides thet legisiation is presumed to have a prospective effect cnly,
Gxtends sinilar protection), although article 112, section 1 of the Hawes"t
Constitution woule iso srcusbly bar 2x post facto measures ty virtue of ite
Limitation of "It}he legislative poner of the State ss. te all rightful,
subjects of legislation not inconsistent with... the Constitution of the
United states.”
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14; Bouie v. City of Columbia, 378 U.S. 347 (1964); Hicks vi
Oklahoma, 447 U.S. 343, 346 (1980); United States v. Newnan, 203
F.3d 700 (9th Cir. 2000); United States v. Morehead, 959 F.2d
1489, 1511-12 (10th Cir. 1992); Rubino v. Lynauah, 845 F.2d 1266,
1274 (Sth Cir. 1988).)
C, The Circuit Court possesses The Inherent
gudicial Authority To fmpanel A Jury For
Consideration Of The Necessity Finding Pursuant
706=5 706
‘and 106-664 (1993) Without Often
‘Bight To Due Process Or The Separation Of Powers
Doctrine.
1. Reform by the circuit court of HRS § 706-662
Sump. 1996) and inmediate application of the
reformed statute would not offend a defendant's
xight_to due process.
We begin as a threshold matter with Jess's last
argument, to wit, that judicial reformation of HRS § 706-662
(Supp. 1996) to allow jury consideration of the necessity finding
at his resentencing hearing would violate his right to due
process and prohibitions against ex post facto measures. Jess's
argument is meritless.
toa defendant is constraines by the
requirements of due process, grounded in ex
post facto concerns.
The United States Supreme Court has made it clear that
the constitutional prohibition against |x post facto measures
applies only to legislative enactments. Rogers v. Tennessee, 532
U.S. 451, 456 (200) ("As the text of the Clause makes clear, it
‘is a limitation upon the powers of the Legislature, and does not
of its own force apply to the Judicial Branch of government.‘
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(Quoting Marks v. United States, 430 U.S. 188, 191 (1977))). The
Rogers Court, nonetheless, observed “that limitations on ex post
facto judicial decisionmaking are inherent in the notion of due
process," id. at 457, citing Bouie as an instructive example. In
Bowie, the Court held that a judicial interpretation of 2
criminal trespassing statute, when applied retroactively to the
defendants -- African-Americans wishing to patronize a department
store restaurant -- to expand criminal lability violated “*the
basic principle that a criminal statute must give fair warning of
the conduct that it makes a crime,’” id. (quoting Bowie, 378 U.S.
at 350). The Rogers Court made it equally clear, however, that,
“[t]o the extent that [a} petitioner argues that the Due Process
Clause incorporates the specific prohibitions of the Ex Post
Facto Clause as identified in Calderiv, Bull, 3 U.S. 366
(2798)*), [a] petitioner misreads Bovie.” Id. at 450-59
(characterizing any language implying that due process analysis
must wholly incorporate ex post facto precedent as “dicta”).
Rather, the Rogers Court clarified that the appropriate test for
analyzing whether a newly announced judicial doctrine can apply
sn Calder, the Court set forth four types of laws to which the x post
Laste prohibition extends
lst. Every law that makes an action done before the passing of
the lan, and which was innocent when done, criminal; snd punishes
such action, “2d, Every law that aggravates a crine, or makes. it
Greater tha it was, when committed. 3d.” Every law thar changes
the punishment, and inflicts s greater punishment, than the law
annexed to the crime, when committed. (th. Every law that alters
the legal rules of evidence, and receives lees, or cifferent,
testimony, then the law required at the tine of the comission of
the offense, in order to convict the offencer
3 U.S. et 390-91, quoted in Rovers, $32 U.S. at 455,
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to the instant defendant is grounded in “core due process
concepts of notice, foreseeability, and, in particular, the right
to fair warning as those concepts bear on the constitutionality
of attaching crimina) penalties to what previously had been
nnocent conduct." Id. at 459 (citing Bouie, 378 U.S. at 351,
352, 354-55; United States v. Lanier, 520 U.S. 256, 266 (1997);
Marks, 430 U.S. at 191-92 ; Bose v. Locke, 423 U.S. 48, 53
(1975) Douglas vy, Buder, 612 U.S, 430, 432 (2973); Rabe v
Washington, 405 U.S. 313, 316 (1972)) (emphasis added). The
Rogers Court refused to import ex post facts protections
wholesale into judicial decision-making because (1) “[a] court’s
‘opportunity for discrimination . . . is more limited than [a]
legislature's, in that [it] can only act in construing laws in
actual Litigation,’" id. at 460-61 (quoting Janes v. united
States, 366 U.S. 213, 247 n.3 (1961) (Harlan, J., concurring in
part and dissenting in part)) (some brackets added and some in
original), and (2) “incorporation of the Calder categories(, see
supra note 24,] into due process limitations on judicial
decisionmaking would place an unworkable and unacceptable
restraint on normal judicial processes and would be incompatible
with the resolution of uncertainty that marks any evolving legal
systen,” id. Instead, the Rogers Court concluded that judicial
reformation of the law “violates the principle of fair warning,
and hence must not be given retroactive effect, only where it is
‘unexpected and indefensible by reference to the law which had
been expressed prior to the conduct in issue,’" id. at 462
(quoting Bouie, 378 U.S, at 354), circumstances that would
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generate “unfair and arbitrary judicial action against which the
Due Process Clause aims to protect,” id, at 467.
>. i ion
fora _iudicial decision to implicate due
process concerns, the change wrought upen the
defendant's interests must be substantive, as
opposed to procedural, and detrimental, as
opposed to renedial.
In practice, when considering whether application of 2
judicial decision to @ particular defendant is “unexpected and
indefensible,” Bouie, 378 U.S. at 354, courts have focused on two
intertwined distinctions: (1) whether the change wrought by the
Judicial decision is detrimental or remedial to the defendant's
interests; and (2) whether the change is substantive or
procedural in nature. Without question, substantive changes to
the legal landscape that increase a defendant's criminal
Liability for acts committed prior to the judicial decision
violate the right to due process of law. See Boule, 378 U.S. at
350, 353-55 (“[A]n unforeseeable judicial enlargenent of a
criminal statute, applied retroactively, operates precisely like
an 2x post facto law such as Artlicle] I, s{ection] 10, of the
Constitution forbids,” an action which “vielate[s] the
requirement of the Due Process Clause that @ criminal statute
give fair warning of the conduct which it prohibite”); Rubino,
845 F.2d at 1274 (relying on Miller v. Florida, 482 U.S. 423
(1987), to conclude that due process concerns are implicated in
the context of judicial statutory reformation only when the
judicial modification operates “to the detriment of @ criminal
defendant” and holding, after analyzing the judicial elimination
of a Texas doctrine governing the manner in which erimes composed
58
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of overlapping elenents were charged, that, “[ilf the . .
doctrine would have barred [the defendant]’s second prosecution
and conviction, the State deprived him of due process in
affirming his conviction in reliance on the abandonment of 2
protective rule in force at the time of his offenses”).
on the other hand, procedural changes, those that
alter the process by which guilt is adjudicated or sentence
imposed, without modifying the degree, of criminal liability or
the length of the sentence imposed, do not implicate due process
concerns. See, e.g., Collins v. Youngblood, 497 U.S. 37, 45
(1990) (defining procedural changes as “changes in the procedures
by which a criminal case is adjudicated, as opposed to changes in
the substantive lew of crimes” and further defining matters of
substance as those thet “deprivie] a defendant of ‘substantial
protections with which the existing law surrounds the person
accused of crime’ or arbitrarily infring{e] upon ‘substantial
Personal rights’”) (quoting Malloy v. South Carolina, 237 U.S.
180, 183 (1915); Duncan v. Missouri, 152 U.S. 377, 382-63
(2894).
Hankerson v. State, 723 N.W.2¢ 232 (Minn. 2006), is an
apt illustration of the foregoing principle. In Hankerson, the
Minnesota Supreme Court -- albeit in the context of analyzing
whether ex post facto principles were violated by retroactive
application of a legislative reform of the state’s extended
instigated by Apprendi, $30 U.S. 466, and
Blakely v. Washington, 542 U.S. 296 (2004) ~~ relied on Collins,
497 U.S. at 51 and Dobbert v, Florida, 432 U.S. 262, 287-88,
sentencing statut
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292-94 (1977), to conclude that “a change affecting the identity
of the fact finder is procedural and thus is not burdened by ex
post facto restrictions.” Hankerson, 723 N.W.2d at 242
(underscoring added). The court distinguished substantive from
procedural changes by concisely defining procedural modifications
as those that “d{o] not add aggravating factors, eliminate
elements of aggravating factors, or increase the duration of the
sentence authorized by a finding of aggravating factors.” id.
Equally clear is the proposition that, if a judicial
reformation of @ statute works to the defendant's advantage, due
Process is not offended. See Morehead, 959 F.2d at 1511-12
(noting that United States Supreme Court and Tenth Circuit
Precedent distinguished allowable retroactive application where
Judicially-wrought changes expanded the rights of criminal
defendants (citing Batson v, Kentucky, 476 U.S. 79 (1986)) from
judicial decision-making that constricted the rights of criminal
defendants, which, to be applied retroactively, had to pass
additional due process muster as articulated in Bowie (citing
Marks, 430 U.S. 188; Bowie, 378 U.S. 347)); State v. Sandoval,
161 P.3d 1146, 1167 (Cal. 2007) (noting that federal courts have
unanimously concluded that the “remedial interpretation” of
federal sentencing guidelines in Booker, $43 U.S. at 268,
instigated by the requirements of Aporendi, conports with due
process).
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c. The circuit court would not offend the right
‘to due process by reforming HRS § 706-662
(Supp. 1996) s0 as to allow for jury
a Finding and
applying that reformat ior
hand.
In the present matter, invocation of a court’s inherent
power “to provide process where none exists,” Moriwake, 65 Haw
at 58, 647 P.2d at 711-12, by reforming HRS § 706-662 (Supp.
1996) to allow for jury fact-finding would not violate Jess's
right to due process of law. Assigning the fact-finding role to
the jury would be a procedural, as opposed to a substantive,
change that would not expand the scope of criminal liability,
increase punishment, or alter any evidentiary burdens to Jess’s
detriment, see Rubino, @45 F.2d at 1274, but, rather, would
“simply chang[e) the course to a result,” id. See Washington v.
Recuenco, __ U.S. _, 126 S. Ct. 2546, 2549, 2553 (2006)
(sherein the United States Supreme Court ruled that Apprendi
errors were procedural and subject to harmless error analysis)
(abrogating State v. Hughes, 110 P.3d 192, 196 (Wash. 2005)
(holding that an error under Blakely, 542 U.S. 296, was
structural and could never be harmless); Collins, 497 U.S. at SI
("The right to jury trial provided by the Sixth Amendment is
obviously a ‘substantial’ one, but it is not @ right that has
anything to do with the definition of crimes, defenses, or
punishments, which is the concern of the Ex Post Facto Clause.”)
jess I1, 2007 WL 1041737, at *4 (applying harmless error analysis
to Jess's habeas petition); Hankerson, 723 N.W.2d at 242
(construing Collins, 497 U.S. at 51, and Dobbert, 432 U.S. at
58
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287-88, 292-94, to “make clear that @ change affecting the
identity of the fact{-)finder is procedural”).
Moreover, the judicial reformation of the statute to
allow for the enpanelment of @ jury, by being more protective of
Jess's constitutional right to a jury, would work to his
advantage and not to his detriment. See Hankerson, 723 N.W.2d at
241-43 (the amendments to Minnesota’s sentencing scheme, by
requiring a higher quantum of proof upon resentencing,
“vindicate, not violate, Hankerson’s constitutional rights”).
2.
court we nd the separat. ers
PF crea re iaberest Tec
necessity finding under HRS $ 706-662 (Supp.
996).
In Maugacteaa II, this court held that HRS § 706-662
(Supp. 1996) was, in light of Cunningham v. California, $49 U.S.
1 127 5. Ct. 856 (2007), unconstitutional on its face, insofar
as every subsection “authorize(d] the sentencing court to extend
a defendant's sentence beyond the ‘standard term’ authorized
solely by the jury's verdict . . . by requiring the sentencing
court, rather than the trier of fact, to make an additional
necessity finding that . . . does not fall under Apprendi’s
prior-or-concurrent-convictions exception... .”
Maugaotegs II, 115 Hawai'l at 446, 168 P.3d at 576 (footnote
omitted) «
We recognized that our courts possess the inherent
authority to reform the law to preserve its constitutionality by
ordering the empanelment of juries to consider the factual
findings requisite to the imposition of an extended term sentence
59
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pursuant to HRS §§ 706-661 and 706-662 as they existed at the
time. Maugactega II, 115 Hawai'i at 448-49, 168 P.3d at 578-79
(citing, inter alia, Feralto, 95 Hawai'i at 6, 18 P.3d at 208;
Aragon v. Wilkinson ex rel, County of Maricopa, 97 P.3d 86, 891
(Ariz. Ct. App. 2004); Galinder v, State, 985 So. 2d $17, 527
(Fla. 2007); State v. Schofield, 895 A.2d 927, 937 (Me. 2008);
see also Maugacteca I, 115 Hawai'i at 458, 168 P.3d at S88
(coba, J., concurring and dissenting, joined by Duffy, J.)
Nevertheless, in light of the legislature's expressed intent in
Act 230 of the 2006 legislative session, sce sunxa notes 3 and 4,
and the legislature's then-current failure to reach agreement on
the creation of @ jury-based system,“ we concluded that it would
hot... Be appropriate for this court to assert sts
Inherent authority to empanel a jury on remand
because, as a rule,
[plrudential rules of judicial
self-governance properly init the role of
the courts in a semocratsc wociety. hy
Srustess of OHA) Yanasski, 69 Haw. 154,
Tit, 137 P.2e 406, 456 (1907); Lite of the
Land v. Land vse Comission, 63 aw. 166,
372, 623 b.2a 431, 456 {198i} (citing
Mapin'y: Selgin, 422°0.8. 490, 498
(S751); - + + {One} such role is that,
‘ven in the absence of constitutional
restrictions, [courts] must still
Earefully weigh the wisdom, efficacy, and
ElneLinezs ofan exercise Of their power
before acting, especially where there may
bs-an- intrusion inte arses commited te
Sther branches of government.
(enphasis added) (citation onittedl
as noted in Mauagoteaa IZ, 115 Hawai'i at 450 1.20, 168 P.3d at S60
1.20, House Bill No. 1i82 was introduced on January Z4, "2007 and sought to
fanend HRS $5 106-662 ang 706-664 to assign to the jury'the fact-finding role
Wien respect to extended term sentences. See H-B. No. 1152, 24th Leg., Reg.
Sees." (2007), available at netp://capitol .hewali.gov/sessich2007/bil1s/
lisiis2 S02 hem. The Senate and the House of Representatives were unable to
Teach agresment on 2 final draft of the bill, however, and the measure was put
60
POR PUBLICATION IN WES!
WAWAI'T REPORTS AND PACIFIC REPORTER +++
. Although judicial review
serves'as 4 check on the unconstitutional
exercise of power by the executive and
Legislative branches of government, “the
only check upen [the judicial branch's}
exercise of poner is [its] own sense of
Selfsrestraine.” Us. v. Butler, 297 U.S.
ty 76-78 (3936) (stone, Oe
Giesenting)
In ce Attorney's Fees of Mohr, 97 Hawai'i 1, 9-10, 32
B.3a 647, 25-56 (2001) {sone brackets added and some
i originel) (sone ellipses added and some in
original) (emphasis in original). See alse Rose v,
4 76 owas 454, 467, 879 P.2e
3057, 1050 (1884) iKlein, J-, concurring and
dissenting) ("*[T)he (clourt’s function in the
application and interpretation of - laus mst be
Carefully limited to aveid encroaching on the power of
[the legislature] to determine policies and make los
to carry them out.'"}. (quoting Bove Markets, Ine. v.
Retail Clerks Union, Local 210, 398 U.S. 298, 256-57
(1570) (Bleck, J-y dissenting! ); Bremner v, Civ &
Gounty of Henoluis, 96 await 134, 135, 26 P30 350,
385 (App. 2001). (quoting Lite of the Land, 63 Haw. ot
171-92)" 623 P28! at 438)
Maugacteas Ii, 115 Hawai'i at 450, 168 P.36 at 580 (sone ellipses
added and sone-in original).
Although Hauggotecs II focused on the inherent power of
this court to order, on remand, the empanelment of a jury to
consider the requisite findings, such inherent judicial authority
resides equally in a circuit court, be it in an original
proceeding or in a sentencing proceeding on remand. See HRS
§ 603-21.9 (1993); Richardson v. Sports Shinko (Waikiki Corp),
BRS § 603-21.9 provices in re
ant par
The several circuit courts shall have power:
isi” orders, . . . issue such executions
and do. such Sther acts and take. such
Other steps as nay be necessary to carry into full effect
the powers which are or shall be given to then by law or for
the promotion ef justice in matters pending before tren,
a
99 FOR PUBLICATION IN MEST’S HAMAS REPORTS AND PACIFIC REPORTER +++
16 Hawai'i 494, 507, 980 P.2d 169, 182 (1994) ("[CJourts have
inherent equity, supervisory, and administrative powers as vell
as inherent power to control the litigation process before
them[,] . . . powers . . . derived from the state Constitution
and... not confined by or dependent on statute,” and “[a]mong
courts’ inherent powers are the powers to ‘create a remedy for 2
wrong even in the absence of specific statutory renedies'” and
the “inherent power to . . . promote a fair process.” (Quoting
Peat, Marvick, witche Superior Court, 245 Cal Rptr. 873, 883,
(Cal. Ct. App. 1966) (citing, inter alia, Morivake, 65 Haw. at
55, 647 P.2d at 711-12).) (Citing State v. Alvey, 67 Haw. 49,
57, 678 P.2d 5, 10 (1984) (noting that a trial court, in invoking
its inherent powers, must “*balancle] the interests of the
(s]tate against fundamental fairness to a defendant with the
added ingredient of the orderly functioning of the court system’”
(quoting Morivake, 65 Haw. at $6, 647 P.2d at 712).)7 Moriwake,
65 Haw. at $5, 647 P,2d at 711-12 (defining the inherent power of
all courts, including the trial court, as “the power to protect,
itself; the power to administer justice whether any previous form
of remedy has been granted or not; . . . and the power to provide
Process where none exists"), quoted in Farmer v. Admin, Dir, of
the Courts, 94 Hawai'i 232, 241, 11 P.3d 457, 466 (2000).
This court has concluded that the extended term
sentencing scheme “should be construed in harmony with the
requirements of due process,” State v, Kamae, 56 Haw. 628, 625,
S48 P.2d 632, 637 (1976) (speaking specifically of HRS § 706-664
but addressing as a whole the due process requirements of the
62
‘*** FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER +*#
extended sentencing scheme), which includes the need, in light of
Cunningham, to address shortcomings in the fact-finding structure
of HRS § 706-662. Moreover, the matter of extended term
sentencing is of sufficient public concern to justify invocation
of a circuit court's inherent power to reform the statute so as
to preserve its constitutionality provided that, by invoking that
authority, the circuit court could “conclude with confidence that
(4) it [was] possible to [do so) in a manner that closely
effectuate|d) policy judgments clearly articulated by the
enacting body, and (ii) the enacting body vould have preferred
such 2 reforned version of the statute to invalidation of the
statute.” Sandoval, 161 P.3d at 1159 (some brackets added and
some in original). And, as noted in Maugacteea Ii, jury
consideration of the necessity finding could be structured so as
to avoid “contamination” of the impartiality of the jury by
Postponing introduction of evidence pertaining to extended term
sentencing until after the guilt phase of the trial has
concluded. 115 Hawaiti at 449-50 n.19, 168 P.3d at 579-80 n.19
(citing Jante, 92 Hawai'i at 34-35, 986 P.2d at 321-22), Nor is
@ properly timed determination of the necessity finding any less
suited to a jury than the finding that a murder wes carried out
in a manner “especially heinous, atrocious, or cruel,” as
required by HRS § 706-657 and assigned to the jury in Peralte, 95
Hawai'i at 7, 18 P.3d at 209, and Jante, 92 Hawai'i at 33, 986
P.2d at 320, The United States District Court for the District
of Hawai'i, in fact, implicitly concluded that the ni
ssity
finding was suitable for jury determination. See Jess 11, 2007
6
[FOR PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER #+#
WL 1041737, at *6 (in articulating its harmless error analysis
comparing the likelihood that jury and judge findings would agree
on the necessity finding in any given case).
To be sure, the circuit court, in exercising its
discretion to invoke its inherent authority “to provide process
where none exists,” Morivake, 65 Haw. at 55, 647 P.2d at 712,
must be similarly aware of the necessity of tempering the
exercise of that power in light of the expressed intent of the
legislature on the subject under consideration. See
Maugactega II, 115 Hawai'i at 450, 168 F.3d at $60 (citing, inter
alia, Mohr, 97 Hawai'i at 9-10, 32 P.3d at 655-56, for the
Proposition that “*the only check upon [the judicial branch's)
exercise of power is [its] own sense of self restraint’” (quoting
Butler, 297 U.S. at 76-79)), The Wisconsin Supreme Court, in
Barland v, Eau Claire County, $75 N.W.2d 691 (Wis. 1996), in
describing the separation of powers amongst the three branches of
government, noted that “*[t)he separation of powers doctrine
states the principle of shared, rather than completely separated
Powers,’" which “‘envisions 2 government of separate branches
sharing certain powers./” Id. st 696 (quoting State v, Holmes,
315 N.W.2d 703, 709 (Wis. 1962)). The Barland court concluded
that, “*[1Jn these areas of “shared power,” one branch of
government may exercise power conferred on another only to an
extent that does not unduly burden or substantially interfere
with the other branch's exercise of its power.’" Id. (quoting In
xe Complaint Against Grady, 348 N.W.2d 559, 566 (Wis. 1984)).
Similarly, the highest court in Maryland, in Wynn v, State, 679
64
"+ FOR PUBLICATION IN WEST'S NAWAI'T REPORTS AND PACIFIC REPORTER
A.2d 1087 (Md, 2005), recently comnented that “[clourts across
the country . . . have maintained that inherent authority should
be recognized and yet employed rarely,” id. at 1104, noting that
“the need for a narrow application of inherent authority is
greater when the power claimed as deriving from inherent
authority overlaps and conflicts with a power of the legislative
OF executive branch,” id. at 1105. Therefore, “*[i]n exercising
its power to do what is reasonably necessary for the proper
administration of justice . . . [,] @ court must proceed with a
cautious and cooperative spirit into those areas where its
constitutional powers overlap with those of other branches.‘”
Ad. (quoting In _re Alamance County Court Facilities, 405 $.£.2¢
125, 133 (N.C. 1991)). Concerns such as these led us, in
Maw Ja LL, to decline to exercise this court’s inherent
authority to empanel a jury, in light of, at that time, the most
Fecent and most explicit expressions of legislative intent
Pertaining to the wisdom of 2 jury-based necessity finding, 115
Hawai'i at 449-50, 168 P.3d at 579-80.
There has, however, been recent seachange in the
legislature’s clearly expressed intent regarding the wisdom of
employing juries in the context of extended term sentencing. the
enactment of H.B. No. 2, se¢ supra notes 3-6, during the recent
special session provides this court with a fresh, conclusive
expression of legislative support for the use of juries as the
trier of fact with respect to extended term sentencing fact-
finding and allows us to “conclude with confidence,” Sandoval,
161 P.3d at 1159, that empaneling a jury would “closely
6
FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
effectuate] policy judgments clearly articulated by the
[legislature},” id., and that the legislature “would
prefer{] such a reformed version of the statute to invalidation
of the statute,” id.; see also State v. Cutsinger, No. 28203,
2008 WL 257175, at *1, *14 (Haw. Ct. App. Jan. 30, 2008) ("The
Legislature’s enactment of Act 1. . . eliminates any doubt about
the Legislature's intent with respect to extended term
sentencing. The Legislature has plainly expressed its desire for
@ sentencing scheme in which extended terms of imprisonment may
continue to be imposed.”). In light of the recent legislation,
invocation of the court's inherent authority in the instant
matter would “‘not unduly burden or substantially interfere with
the other branch's exercise of its power.’” Earland, 575 N.W.2d
at 696 (quoting Grady, 348 N.W.2d at 566).
© the dissent argues that, “bly answering the [reserved [q]uestion in
the affirmative, and allowing’ for the application of (Nawail’s extended term
sentencing] statute, ( HRS § 706-662 (Supp. 1996),] the majority violates
Precedent,” namely faugactega 2. Dissenting opinion at 13. The dissent
overlooks’ the cbvioue, namely, that the Legislsture enacted Act 1 giter we
Secided Wauagcteas II. ‘he we have caic, our decision in ae
guided by the iatest expression of legislative intent, specifically Act 230,
which vested the power to nake the necessity finding not with the Jury, but
With the court. fea 115 Hawas's at 449-80, 166 Pod at $7980. Act
Provices the evidence of conclusive legislstive support for the circuit court
fo enpanel a Jury pursuant to its inherent authority thet was previously
locking, Girecting that the Jury, end not the sentencing court, meke the
necessity finding. See gupta notes (-5. Accoraingly, cur conclussen that the
circuit court may empenel a jury to make the necessity finding under ARS
§ 706-662 is conssstent with principles of stare
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‘04 FOR PUBLICATION IN MEST’ WAWAI'T REFORTS AND PACIFIC REPORTER
D. The Circuit Court May, With Respect To A
for retroactive application upon resentencing
In the interests of judicial economy, we construe
Jess's constitutional ergunents broadly to include the question
whether the prohibition against ex post facto measures prevents
the circuit court from applying Act 1 of the 2007 Second special
Session, see supra notes 3-6, to his resentencing. The measure
provides in relevant part that “[t]his Act shall apply to all
sentencing or resentencing proceedings pending on or commenced
after the effective date of this Act, whether the offense was
committed prior to, on, or after the effective date of this Act.”
See supra note 6. It specifically addresses defendants in Jess’s
position by providing that “[a] defendant whose extended term of
imprisonment is set aside or invalidated shall be resentenced
pursuant to this Act upon request of the prosecutor.” Id,
2. “
application of Act 1 to Jess's case would not
violate the conststutional bition soainst ex
post facto measures,
Ex post facto protections are not implicated unless,
without notice, they effect a substantive change to the
defendant's interests that operates to his or her detriment. See
Cutsinger, 2008 WL 257175, at *8 ("Under the Supreme Court’s test
for determining whether @ criminal law falls within the ex post
facto prohibition, two critical elements must be present:
‘first, the law must be retrospective, that is, it must apply to
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(84 FOR PUBLICATION IN MEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER +++
events occurring before its enactment: and second, it must
Sisadvantage the offender affected by it.’” (Quoting Miller, 482
U-S. at 430.))+ Landorat v, USI Film Prods., 511 U.S. 244,
269-10, 275 n.28 (1994) (noting that “[w]hile we have strictly
construed the Ex Post Facto Clause to prohibit application of new
statutes creating or increasing punishments after the fact, we
have upheld intervening procedural changes even if application of
the new rule operated to a defendant's disadvantage in the
Particular case,” and concluding that “[a} statute does not
operate ‘retrospectively merely because it is applied in a case
arising from conduct antedating the statute's enactment or upsets
expectations based on prior law(; rJather the court must ask
whether the new provision attaches new legal consequences to
events completed before its enactment”); Sandoval, 161 P.3d at
1159 ("A retroactive law does not violate the ex post facto
clause if it does not alt
‘substantial personal rights’ but
merely changes ‘modes of procedure which do not affect matters of
substance.’” (Quoting Millex, 482 U.S. at 430.) (Underscoring
added.)); Hankerson, 723 N.W.2d at 241-42 (concluding (1) that,
in order “*(tjo fell within the ex post facto prohibition, a law
must be [a] retrospective -~ that is, “it must apply to events
occurring before its enactment” -~ and [b] it “must disadvantage
the offender effected by it"’" (quoting Lynce vy, Mathis, 519 U.S.
433, 441 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 29
(1982))), (2) that Apprendi-nandated anendnents introducing jury
fact-finding “are not prohibited as ex post facto laws because
they do not work to [the defendant]’s disadvantage” but, rather,
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“vindicate, not violate, [her] constitutional rights,” and (3)
that “a change affecting the identity of the fact (-]finder is
procedural and thus is not burdened by ex post facto
restrictions”); State v, Upton, 125 P.3d 713, 719-20 (Or. 2005)
(analyzing Oregon's reformed extended term sentencing statute,
instigated in response to Apprendi and Blakely, wherein the fact~
finding function was assigned to the jury and concluding: (1)
that assigning facts to the jury “changes only the method for
determining the available punishment; it does not . . . increase
that punishment”; (2) that, to the extent that the new jury fact
finding responsibilities “change{] the quantum of proof required
under the sentencing guidelines, it inures to the defendant's
advantage to require the state to prove any enhancing factors
beyond @ reasonable doubt,” a procedural change which “does not
prejudice defendant; indeed, it vindicates his constitutional
rights”: and (3) that the prohibition against ex post facto
measures was not, therefore, violated because “[f]or @ statute to
violate state or federal ex post facto clauses, the statute mist
at least effect some kind of disadvantageous change upon the
defendant” (emphasis added) (citing State v. Mcliab, 51 P.3d 1249,
1252 (Or. 2002)); Mashington v. Pillatos, 150 F.3d 1130, 1195,
1137-38 (Wash. 2007) (reasoning that “if the changes to the
statute de not alter the consequences of the crime[,) then there
is likely no relevant lack of notice” and concluding that
retroactive application of amendments to Washington's penal code
driven by Blakely did not violate ex post facto prohibitions
because “the|] defendants had warning of the risk of an
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exceptional sentence” and “at the time . . . thel] defendants
committed the crimes . . . , (the state) had a seemingly valid
exceptional sentencing system which gave fair notice of the risk
of receiving such a sentence”).
As noted supra in section III.C.1.c, the United States
Suprene Court, in Recuenco, ruled that Avprendi errors are
procedural in nature, 126 5. Ct. at 2553; see also Cutsinger,
2008 WL 257175, at *8 ("Phe pivotal change made by Act 1 --
Providing the defendant with the right to have a jury determine
the facts necessary to impose an extended term -- is a procedural
change to Hawai‘i's extended term sentencing statutes. It
therefore falls within the procedural-change exception to the ex
post facto prohibition.”]. Moreover, prescribing @ jury as the
trier of fact during the extended term sentencing phase, pursuant
to Act 1, is remedial in nature and “does not prejudice [the]
defendant; indeed it vindicates his constitutional rights,”
Upton, 125 P.3d at 719; see also Cutsinger, 2008 WL 257175, at +8
("Act 1 provides [the defendant] with additional benefits not
contained in the prior law. Act 1 gives [the defendant] the
right and option to have a jury (instead of only the sentencing
court) determine the facts necessary to impose an extended term
of imprisonment. It also requires that such facts be proven
beyond @ reasonable doubt.” (Citation and footnote omitted.)).
Applying the Calder test, see supra note 24, it is clear that the
new jury provisions do not (1) increase criminal liability for
conduct previously innocent, (2) aggravate the degree of Jess's
crimes, (3) increase the punishment available at the time Jess
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committed his crimes, or (4) alter evidentiary standards to
Jess's detriment. See Calder, 3 U.S. at 390-91, quoted in
Rocers, $32 U.S. at 455; see also Cutsinger, 2008 wi, 257175,
at *8 (concluding that “the retroactive application of Act 1 does
not disadvantage (the defendant] because it does not subject him
to “increase{d] punishment beyond what was prescribed’ when his
burglary offense was committed” (quoting Miller, 482 U.S. at 430)
(brackets in original).
We therefore hold that the constitutional prohibition
against ex post facto measures is not offended by the plain
language of the new law. See Cutsinaer, 2008 WL 257175, at +8
(holding that “Act 1's retroactive application to (the defendant)
does not violate the Bx Post Facto Clause of Article I, § 10”)
Iv. concLusion
For the foregoing reasons, we remand this matter to the
circuit court for further proceedings consistent with this
opinion.
BOP nn
ae
% although the dissent asserts that Act 1 should not be construed or
applied with respect to Jess, see dissenting opinion at 1-3, $23, it aves not
ke issue with the actus) sibetance of cur due process or £x post facte
alyeis
n
19 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ++
Mark J. Bennett
Attorney General
(Dorothy Sellers
Solicitor General,
Girard D. tau,
First Deputy Solicitor
General, and Kimberly
‘Tsunote’ Guidry, Deputy
Solicitor General,
on the briefs),
for amicus curiae State
of Hawai'i
David Glenn Bettencourt,
for the defendant-appellee
Brian Jess
on the briefs:
Daniel H. Shimizu,
Deputy Prosecuting Attorney,
for the plaintiff-appellant
State of Hawai'i
‘Tracy Murakami
Deputy Prosecuting Attorney
for amicus curiae Prosecuting Attorney,
County of Kaua'i
2
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