id
stringlengths
36
36
title
stringlengths
1
1.29k
citation
stringlengths
5
718
docket_number
stringlengths
3
304
state
stringclasses
37 values
issuer
stringclasses
37 values
document
stringlengths
300
1.94M
hash
stringlengths
64
64
timestamp
stringlengths
20
20
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LAW LIBRARY HAWAI REPORTS AND PACIFIC REPORTER NOT FOR PUBLICATION IN WEST’ Wo, 27331 IN THE SUPREME COURT OF THE STATE OF HAMA‘ DONALD S. K. CHING, Plaintiff-Appellant /Cross~Appellee, qa vs. MARK G. VALENCIA, JAMES C.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court erred in granting summary judgment on his malicious prosecution {the Honorable Sabrina S. MeKenna presided NOT FOR PUBLICATION IN WEST'S HAWAN REPORTS AND PACIFIC REPORTER claim inasmuch as (1) judicially enforceable arbitration proceedings satisfy the “prior proceeding” eler nt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 *** FOR PUBLICATION *** 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 *** FOR PUBLICATION *** in West's Hawai‘i Reports and the Pacific Reporter 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, *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter (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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter @. 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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, -10- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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. o12- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 -13- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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. -14- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter (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 *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter (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 wt *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -17- *** FOR PUBLICATION * in West’s Hawai‘i Reports and the Pacific Reporter ‘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: wis *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter ‘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. -19- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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- *** FOR PUBLICATION *** 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, 2 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ‘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 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER 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 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 {++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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. 7 ++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * 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) FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * ‘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 10 {* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 ‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER *** 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 {+2* FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 1+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER, 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 12 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * 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 +0 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REDORTER +++ 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} 4 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. 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. 15 12 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER 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, 16 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER 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 uv ‘+ FOR PUBLICATION IN WEST’ HAWAII REPORTS AND PACIFIC REPORTER. 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). 18 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER 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 19 + FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *** 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 20 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 21 ‘+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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. 22 ‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** ‘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 23 "+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTE! 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: 24 ‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER 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 25. ** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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.)). 26 {s+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 27 *** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. 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. 28 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 29 * FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** 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, 30 +#** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, 111 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ***__ 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 ++ FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER *** 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 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 ‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 +++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * 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 +++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 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 uv ‘++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * “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 20 ‘+ 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 21 ++ 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 22 +++ 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”); 25 + 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 ‘e+70R PUBLICATION IN WES?! HAMAL'T REPORTS AND PACIFIC REPORTER’ (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 ‘s*4P0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER® ‘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.” /++FOR PUBLICATION I wES®’ MAWAL'T REEORES AND PACIFIC REPORTERS+* 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. 10 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER 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. a MAWA2'T REBORTE AND PACIFIC REPORTER! POR PUBLICATION IN WEST’ 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)- 12 s+4FOR PUBLICATION IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTERS+# 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). B FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER*+* 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 1s FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS#® 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. 16 ‘s+470R PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*++ 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. uv FOR PUBLICATION IN WEST'S HANAI'T REPORTS AND PACIFIC REPORTERS#* 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 ae {POR PUBLICATION IN WEST’ § HAAI'T REPORTS AND PACIFIC REPORTER*™: 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 19 ‘#0F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS #* 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. 20 ‘s*470R PUBLICATION IN WEST’ S RAWAI'T REPORTS AND PACIFIC REPORTER*** 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. 2a ‘#0FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER 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 22 ‘s+4P0R PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTERS 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 24 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER!*# 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 25 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER**+ 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 26 ‘e+F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER" 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 2 POR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS#® 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 28 se4fOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER®: 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 30 ‘s++POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS+# 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. a /+POR PUBLICATION IN WEST'S HAWAL'E REPORTS AND PACIFIC REFORTERS+* ©. 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. 32 ‘s+ePOR PUBLICATION IN MEST’ HAWAI'I REPORTS AND PACIFIC REPORTER: ‘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.--) 3 ‘e+70R PUBLICATION IN MEST’S HAMAT'T REPORTS AND PACIFIC REFORTER*#* 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 34 OR PUBLECASION IN WESE’S EAWAI'T REFORES ND PACIFIC REFORTERS++ 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. 35 FOR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER! 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 36 se+FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REZORTER*# 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...) 3 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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. *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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.” *** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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. *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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...) *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -10- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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. -12- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -23- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter [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- *** FOR PUBLICATION * ** in West's Hawai'i Reports and the Pacific Reporter (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 n15- * FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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). -s- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter (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? *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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: +** FOR PUBLICATION ** West's Hawai'i Reports and the Pacific Reporter @: (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. *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -10- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -12- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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+ *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -1s- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -16- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -19- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -20- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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. -21- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 -2a- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -23- *** FOR PUBLICATION *** 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 -24- *** FOR PUBLICATION *** 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 -25- *** FOR PUBLICATION *** 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 -26- *** FOR PUBLICATION *** 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 -27- *** FORPUBLICATION *** 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 -26- *** FOR PUBLICATION *** 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 -30- *** FOR PUBLICATION *** 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 *** FOR PUBLICATION ** 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 -32- *** FOR PUBLICATION *** 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 -33- *** FOR PUBLICATION *** 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.) -16- [FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REFORTER*** 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 -17- ‘**70R PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTERS 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) 18+ se4poR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER! 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 n19- ‘s#9F0R PUBLICATION JN WEST'S HAMAL'T REPORTS AND PACIFIC REPORTERY*# 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...) 20" |FOR PUBLICATION IN WEST’ § HAWAI'I REPORTS 24D PACIFIC REPORTER 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 n21- ‘**FOR PUBLICATION IN WEST'S HAWAI'Z REPORTS AND FACIFIC REPORTERS+# 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, 226 |FOR PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REPORTER*#* 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 -23- ‘s*+F0R PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER*#* 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 -24- “+APOR PUBLICATION I WEST'S HANAI'T REPORTS AND PACIFIC REPORTER**# 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 25+ FOR PUBLICATION IN WEST'S HAKAI'T REEORTS AND PACIFIC REPORTER: 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 -26- s++POR PUBLICATION IN WEST'S HAMAL'T REPORTS AND PACIFIC REFORTER**# 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 -27- ‘+ *9FOR PUBLICATION IN WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTERS+# 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]” 28+ s+e7OR PUBLICATION IN WEST’ § KAWAI'T REPORTS AND PACIFIC REPORTER’ —_—__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 296 ‘**FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERS 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 *** in West’s Hawai'i Reports and the Pacific Reporter 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." *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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. *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 -10- *** FOR PUBLICATION *** ‘West’s Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 o12- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 -13- *** FOR PUBLICATION *** ‘West's Hawai'i Reports and the Pacific Reporter 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. a4 *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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.) n16- *** FOR PUBLICATION *** in West’s Hawaii Reports and the Pacific Reporter 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 -7- ** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 -18- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 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 “19+ *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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.) -20- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 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 FOR PUBLICATION 1M WEST'S HAWAI'T REFORTS 20D PACIFIC REPORTER ++ 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 FOR PUBLICATION IN WEST'S HAWAI'E REFORTS AND PACIFIC REPORTER +++ 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 ‘94 FOR PUBLICATION IN MEST’ HAWAI'I REPORTS AND FACIFIC REPORTER ++* 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 "+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER 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 +44 FOR PUBLICATION IN WEST'S HAWAS'T REPORTS 2D PACIFIC REPORTER +#* 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 +4 FOR PUBLICATION IN WEST’ HANAI'T REPORTS AND PACIFIC REPORTER +++ 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 '+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +++ 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.)). 32 [FOR PUBLICATION 8 WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER *** 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 ‘44 FOR PUBLICATION I WEST” 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 +18 POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REDORTER *++ 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 36 $+ FOR PUBLICATION ZN WEST'S HAWAI'T REFORTS AND PACTFZC REPORTER 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 ‘+4 FOR PUBLICATION IN WEST'S KAWAT'T REPORTS AND PACIFIC REFORTER ++ 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 FOR PUBLICATION IN ws NAWAT'T REPORTS AND PACIFIC REFORTER +++ 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 +++ FOR PUBLICATION IN WEST'S HAWA'T REPORTS AND FACITIC REPORTER *+4 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 + TOR PUOLICATION IN WEST'S HAWAE'T REPORTS AAD PACIFIC REPORTER 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 a POR PUBLICATION IH WEST’ HAWAI'I REPORTS AND PACIFIC REFORTER + 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 ‘+4 FOR PUBLICATION IN WEST! § HAWAI'I REPORTS AND PACIFIC REPORTER *#* 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 ‘#4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER +#+ 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 {199 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS 200 PACIFIC REPORTER 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 “FOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTER #*+ 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 +6 FOR PUBLICATION IN WEST’ HAWAT'T REPORTS AND PACIFIC REPORTER +++ 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.” 51 ‘+*4-FOR-PUBLIEATION IN WEST'S HAWAI'T REPORTS AND FACIFIC REPORTER #+# 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.‘ 82 FOR PUBLICATION IN WEST'S HAMAI'S REPORTS AND PACIFIC REPORTER #+* (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, 53 + FOR PUBLTEATION IN WEST'S WOIAL'T REPORTS AXD PACIFIC REPORTER +++ 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 54 ‘149 FOR PUBLICATION IN WEST'S WANAI'T REFORTS AND PACIFIC REPORTER 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 $44 POR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER ++* 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 56 ‘#4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER 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). 87 FOR PUBLICATION IN WEST'S HAWAI'S REPORTS AND PACIFIC REPORTER *¥¢ 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 “++ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER +++ 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 4104 FOR PUBLICATION IN MEST’ HAWAI'T REPORTS XN0 PACIFIC REPORTER +++ 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 66 ‘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 o (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, 68 ‘4 FOR PUBLICATION IN MEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER *** “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 69 ‘06 FOR PUBLICATION IN WES! WAWAI'S REPORTS AND PACIFIC REPORTER +** 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 70 +4 FOR PUBLICATION IN wes! WATT REPORTS AND PACIFIC REPORTER +++ 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
03c59a4a5cad91a24375887c4df16c58bb143c24031e6f9a451148525b33a5ce
2008-03-31T00:00:00Z