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669c02a8-7fe9-4ab8-8d87-e52b9f1d4428
In re Browning
null
29057
hawaii
Hawaii Supreme Court
No. 29057 28) IN THE SUPREME COURT OF THE STATE OF HAWAT' IN RE RONALD L. BROWNING, Petitioner. ORIGINAL PROCEEDING on URRENDER LICE} (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) upon consideration of Petitioner Ronald L. Browning’ s Petition to Resign and Surrender License, the attached affidavits, and the lack of ebjections 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 IS FURTHER ORDERED that Petitioner Browning 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 Browning shall comply with the notice, affidavit, and record requirements of subsections (2), (b), (a), and (g) of RSCH 2.16. IT 18 FINALLY ORDERED that the Clerk shall remove the nane of Ronald L. Browning, attorney number 3925, from the roll of attorneys of the State of Hawai'i, effective with the filing of this order. DR: Honolulu, Hawai'i, April 7, 2008. Ca Pessstss O17 castryas en g. Pantgs Ye ox14
dc00d9c10d69f9fb24884954ab2a596b6192b21c0b7523b501529d06dd48bfc6
2008-04-07T00:00:00Z
a5d9226d-f205-4e31-ad70-4535d362a5d3
Grindling v. State
null
28997
hawaii
Hawaii Supreme Court
No. 28997 IN THE SUPREME COURT OF THE STATE OF HAWAI'I CHRIS GRINDLING, Petitioner, STATE OF HAWAI'I, Respondent. ORIGINAL PROCEEDING (CR, NO, 07-1-0833) (By: Hoon, €.J., Levinson, Rakayana, Acoba, and Duffy, 99.) 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 Oili v. Chang, 57 Haw. 511, 512, 557 P.2d 787, 788 (1976). Therefore, 17 IS HEREBY ORDERED that the petition for a writ of habeas corpus is denied without prejudice to seeking habeas corpus relief in the circuit court. DATEL Honolulu, Hawai'i, February 22, 2008. Drm > Reseeue Oo Nenteeryeunt po Camm Avid she aad
5073ecc371deaa99d1d4ac4abf6843b13fad2799d6df69894d96466d848bb066
2008-02-22T00:00:00Z
cefee75e-022a-448a-8c2f-7edc94840f6d
Hawaii Public Housing Authority v. Kim
null
28675
hawaii
Hawaii Supreme Court
NO. 28675 IN THE SUPREME COURT OF THE STATE OF HAWAI'T HAWAT'T PUBLIC HOUSING AUTHORITY, a public body and a body corporate and politic of the State of Hawai'i, Respondent-Plaintiff-Appel lee, i ANTHONY KIM, Pet itioner-Defendant-Appellant . APPEAL FROM THE DISTRICT COURT OF THE FIRS? CIRCUg (CIV. NO, 1RCO7-1-0717) Es ER REJECTING APPLIC FOR F_CERTIORART (By: Moon, C.J. for the court") 2 = m o 62:9 fi LL NVE eave Petitioner-defendant-appellant Anthony Kim’s ‘notice of appeal” and “statement of jurisdiction” to the supreme court filed on November 27, 2007 are deemed an application for writ of certiorari. ‘The application is hereby rejected. DATED: Honolulu, Hawai'i, January 11, 2008. FOR THE COURT: LE Justice * considered by: Moon, C.J., Levinson, Nakayana, Acoba, and ouffy, 33
fc2d7a2c4988c99152bb60533d650451798e06085602509fd5cd0484a88435a0
2008-01-11T00:00:00Z
765cf4b1-3947-44b2-8fd4-55bccced2c48
State v. Bayly
null
null
hawaii
Hawaii Supreme Court
No, 27954 oa IN THE SUPREME COURT OF THE STATE OF HAWAI STATE OF HAWAI'I, Respondent /Plaintitt-Appeifee 22 Zin 2) eagane DAVID H. BAYLY, Petitioner/Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO, 2DTA-05-00234) (By: Duffy, J., for the court?) Petitioner/Defendant-Appellant David H. Bayly’s application for a writ of certiorari, filed on January 9, 2008, The is hereby accepted and will be scheduled for oral argument. parties will be notified by the appellate clerk regarding scheduling. DATE! Hawai'i, February 12, 2008. Honolulu, FOR THE COURT: Yona & Daeg, By + Associate Justice Jon N. Tkenaga, Deputy Public Defender, for petitioner /defendant- appellant on the application considered by: Moon, C.J.) Levinson, Nakayama, Aeoba, and Duffy, 33
78b0b1363c5b1a52a7ac1178a85034083fc76e37f67cdd7a2321214a6695f279
2008-02-12T00:00:00Z
258a8191-f811-42dc-9db1-c186722b0cc8
In re Elion
null
28909
hawaii
Hawaii Supreme Court
No. 28909 IN THE SUPREME COURT OF THE STATE OF HANAT'; ORIGINAL PROCEEDING ORDER GRANTING ON TO RESIGN AND SURRENDER LICENS! (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, Jv.) upon consideration of Petitioner Gary Douglas Elicn’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's (RSCH). Therefore, IT IS HEREBY ORDERED that the petition is granted. IT 18 FURTHER ORDERED that Petitioner Elion 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 Elion shall comply with the nts of subsections (a), notice, affidavit, and record requi (), (4), and (g) of RSCH 2.16, IT IS FINALLY ORDERED that the Clerk shall remove the name of Gary Douglas Elion, attorney nunber 5637, from the roll of attorneys of the State of Hawai'i, effective with the filing of this order. art Dr Honolulu, Hawai'i, January 17, 2008. Litton Brant OS taste es b+ Be ne nay ar oss
62160d8077c9d2425a00e09417737a0f2e2e7e097d6c08f577ceeaf07cc34c2d
2008-01-17T00:00:00Z
e2ad46b2-27ef-4ea9-b219-6570ad5c3e06
Office of Disciplinary Counsel v. Blair
null
null
hawaii
Hawaii Supreme Court
No. 28824 IN THE SUPREME COURT OF THE STATE OF HAWAI'T OFFICE OF DISCIPLINARY COUNSEL, Petitioner, ix SAMUEL R. BLAIR, Respondent. aE ORIGINAL PROCEEDING (00c 07-087-8547) ‘orn |9- ease RECIPROCAL DISBARMENT ORDER (By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) Upon consideration of the Office of Disciplinary Counsei’s petition for issuance of reciprocal discipline notice to Respondent Samuel R. Blair, pursuant to Rule 2.15(b) of the Rules of the Supreme Court of the State of Hawai'i (RSCH), the menorandum, affidavit, and exhibits appended thereto, and the record, it appears that: (1) on October 4, 2007, the Supreme Court of the state of Oregon entered an order accepting Respondent Blair's resignation from the practice of law in Oregon while disciplinary matters were pending: (2) RSCH 2.15(b) requires the sane or substantially equivalent discipline in the State of Hawai'i, unless Respondent Blair shall show cause under RSCH 2.15(c) as to why imposition of the same or substantially equivalent discipline should not be imposed: (3) Respondent Blair has not filed a response to our November 26, 2007 notice and order; and a3 (4) a substantially equivalent discipline (disbarment = s9@ RSCH 2.14(4)) is warranted in this jurisdiction. Therefore, IT IS HEREBY ORDERED that Respondent Samuel R. Blair is disbarred from the practice of law in the State of Hawai'i. Notwithstanding RSCH 2.16(c), Respondent Blair's disbarment is effective upon entry of this order. IT 18 FURTHER ORDERED that Respondent Blair’s reinstatement in the State of Hawai'i is conditioned (1) upon payment of all costs of this proceeding, and (2) compliance with ASCH 2.16. DATED: Honolulu, Hawai'i, February 6, 2008. Grw— carole R. Richelieu, Chief Disciplinary Counsel, . for petitioner Slice DkiLarrnee~ Samuel R. Blair, Esq., seelt. Ruumcorunayare PS Cone €. Duin
db95e517d2d420a5eee262f1f43d4b038f66c03fb24b304390e8d20ffebf913d
2008-02-06T00:00:00Z
f5a9eb10-7216-40d0-aec9-2a410bf50a43
First Hawaiian Bank v. Lau
null
null
hawaii
Hawaii Supreme Court
No. 26704 IN THE SUPREME COURT OF THE STATE OF HAWAT'T FIRST HAWAIIAN BANK, Petitioner-Appellee, MABEL LAU, also known as MABEL M.Y. LAU, Respondent-Appellant, and JOHN DOE 1 as Trustee, Personal Representative or Administrator cf the Trust or Estate of Wai Man Fung? JOHN DOES 2-50; JANE DOES 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; DOE ENTITIES 1-50; and DOE GOVERNMENTAL UNITS 1-50, Defendants. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. No. 03-1-0101) (By: Nakayama, J., for the court’) Petitioner-Appellee’s application for writ of certiorari filed on December 20, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, January 30, 2008. FOR THE COURT: Pn Co name Ore Associate Justice Ken T. Kuniyuki of Kuniyuki § Chang for 3 petitioner-appellee 2 on the application S ae S = a2 a ae = o considered by: Moca, C.J. Levinson, Nakayama, Acoba, and Duffy, J3.
22aa89a9eafc134cd0a18029ac4b8e28e5460a5a88adac9ab5954a623abf71df
2008-01-30T00:00:00Z
c7d52fa8-2620-45bc-b920-a320e2ec5c6a
State v. Tsui
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY no. 27775 IN THE SUPREME COURT OF THE STATE OF HAWAI'T 5 STATE OF HAWAI'T, Respondent /Plaints¢#-AppeLli 3 Bie § vs. ad aa = 7 Sg s 3 OREVIS TSU, Petitioner/Oefendant-AppellapHs = Bie a 3 CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (HPD CR. NO. 05207153) 0 (By: Duffy, J., for the court") Petitioner/Defendant-Appellant Drevis Tsui's application for a writ of certiorari, filed on December 4, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, January 10, 2008. FOR THE COURT: Gomme. ally he Associate Justice Leighton K. Lee (Law Office of Leighton K. Lee) and Gary Y. Okuda (Leu & Okuda) for petitioner /defendant- appellant on the application + Levinson, Nakayama, Acoba, and Duffy, 3 Considered by: Moon, c.J
5976cc4dc45b301f3a322b967bba7c9bc1ec491315a1d3784b5c2c811741f7a2
2008-01-10T00:00:00Z
918aac9a-d8c9-4fcb-9019-1799b26f23f6
State v. Hiramoto
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No, 28046 IN THE SUPREME COURT OF THE STATE OF HANAT'T STATE OF HAWAI'I, Respondent-Appellee, DONNY HIRAMOTO, Petitioner-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR, NO. 05-1-0085) (By: Nakayama, J., for the court") Petitioner-Appellant’s application for writ of certiorari filed on January 8, 2008, is hereby rejected. DATED: Honolulu, Hawai'i, February 6, 2008. FOR THE COURT: Associate Justice Jeffrey A. Hawk of Hawk, Sing & Ignacio for petitioner-appellant fon the application VAL VRUON aa Shszind 9~eadeuue ‘considered by: Moon, C.J wvingon, Nakayama, Acoba, and Duffy, 99.
3eaa08ddc25ec30a385b00c23081bd97dd6d64ce98b592b1eeb2284cef361b76
2008-02-06T00:00:00Z
8fc362b3-2fa5-4aa2-94a8-e07238a853a2
State v. Dias
null
null
hawaii
Hawaii Supreme Court
No. 27721 IN THE SUPREME COURT OF THE STATE OF HAWAT‘T CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 05-1-0083) NG_APPLICAI WRIT OF CERTIO (By: Acoba, J., for the court") The Application for Writ of Certiorari filed on Decenber 11, 2007 by Defendant-Appellant/Petitioner Christian Bradley Dias is hereby rejected. Honolulu, Hawai'i, January 18, 2008. FOR THE COURT DATED: Associate’ Justice Phyllis J. Hironaka, Deputy Public Defendant, on the application for defendant-appellant/ petitioner. Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 39.
3b4d332522362e4862fc044e0672bad54015927c5614b3db0273a9ce5de57020
2008-01-18T00:00:00Z
0ef5821f-fece-42bf-849d-8bb311e08f60
State v. Rumbawa
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 27902 IN THE SUPREME COURT OF THE STATE OP HAWAI'T STATE OF HAWAI'I, Petitioner-Appellant, 3 vs. @ a: § VASON B- RUMBANA, ROSALINO 8. eaves, angEIE amon atom herpedente-hpperiees, gg SP se 2 and jo = 8 MICAH KANAHELE and KEVIN KARRIS, Defendant: Se CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 03-1-2501) (By: Moon, C.J., for the court") Petitioner-appellant State of Hawaii's application for writ of certiorari, filed December 17, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, January 29, 2008. James M. Anderson, FOR THE COURT; Deputy Prosecuting Attorney, for petitioner-appellant, on the application Karen T. Nakasone, Deputy Public Defender, for respondent-appellee Ranos, in opposition Jettrey A. Hawk (of Rawk Sing & Ignacio), for respondent- appellee Brown, joining Ranos in opposition Arthur &. Ross, respondent- appellee Rusbawa, joining Ramos in opposition * considered by: Noon, C.3., Levinson, Nakayama, Acoba, and Dufty, 39
194abbb986bbd1845fa4be347f7895c39099755f0a2b2ff8361ee5e83691964c
2008-01-29T00:00:00Z
d8d2e29e-f9d0-4357-93c8-d632a17f85de
In re Grell
null
28959
hawaii
Hawaii Supreme Court
No. 28959 IN THE SUPREME COURT OF THE STATE OF HAWAI'I IN RE CAROL A. GRELL, nka CAROL A. GRELL MORRIS, Petipjoner. ORIGINAL PROCEEDING od DR GRANTING PETIT (By: Moon, C.J., Levinson, Nakayama, Acoba, and Dafa Upon consideration of Petitioner Carol A, ri 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 HBREBY ORDERED that the petition is granted. IT IS FURTHER ORDERED that Petitioner Grell shall return her original license to practice law to the Clerk of this court forthwith. The Clerk shall retain the original license as part of this record, Petitioner Grell shall comply with the notice, affidavit, and record requirements of subsections (a), (b), (di, and (g) of RScH 2.16. IT IS PINALLY ORDERED that the Clerk shall renove the name of Carol A. Grell, attorney number 5043, from the roll of attorneys of the State of Hawai'i, effective with the filing of this order DATED: Honolulu, Hawai'i, February 6, 2008. Slave ee rnco— sate Tawi no Ainenane \P a34s
0ee9f9830247bffd7700879b9d189a5c63b14a494d1b6e2377068cfde489ba6a
2008-02-06T00:00:00Z
49f0c0fb-fb72-47fa-87e4-fd040cfca51b
State v. Lopez
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 27969 IN THE SUPREME COURT OF THE STATE OF HAWAI'T STATE OF HAWAI'I, Plaintiff-Appellee-Respondent, ask, LOPES, Defendant-Appettant-etieiondiele O34 CERTIORARI TO THE INTERMEDIATE COURT OF APPI (CR. No. 05-1-1244) 40:1 Hd 8) nar amg CATION FOR WRIT OF CER (By: Levinson, J., for the court") Upon consideration of the application for writ of certiorari filed on Decenber 7, 2007 by the defendant-appellant- petitioner Mark K. Lopez, the application is hereby accepted. IP IS ORDERED that orel azgunents shall be conducted in this case. The parties will be notified by the appellate cler! regarding scheduling. DATED: Honolulu, Hawai'i, yanuary 18, 200 FOR THE COURT: —StamcG hace < FE STEVEN H. LEVIN Associate Justi Karen T. Nakagone, for the defendant-appellant-petitioner Mark K. Lopez, on the application Considered by: Moon, C.J., Levinson, Nakayans, Resbe, and Ouffy, 23.
4ca668be41df0eb85d3cd92a3983441ec719e4d30d96c7762fdfa2fc1b4dc288
2008-01-18T00:00:00Z
efc4ffd3-7032-4435-b949-408574ceebbb
Thompson v. State
null
null
hawaii
Hawaii Supreme Court
No. 27649 STATE OF HAWAI'Z, Respondent -Appellee. ssssSSSS— CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S.P.P. NO. 05-1-0041/CR. NO. 97-2402) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Moon, C.J., for the court) Petitioner-appellant Janes Thompson's application for writ of certiorari, filed January 9, 2008, is hereby rejected. DATED: Honolulu, Hawai'i, February 13, 2008. Keith S. Shigetoni, FOR THE COURT: for petitioner-appellant, on the application Utter. en Ceo Considered by: Moon, Cod busty, as.
73634bed9d7944084a122c254ba9ccdb02e3e63217195b28938d1b1f6e2da661
2008-02-13T00:00:00Z
2a51e87b-29d1-404f-9d6e-a97b0f9ee9dc
Office of Disciplinary Counsel v. Brittain
null
null
hawaii
Hawaii Supreme Court
Wo, 28951 IN THE SUPREME COURT OF THE STATE OF HAWAI'T OFFICE OF DISCIPLINARY COUNSEL, Petitioner, STEVEN T. BRITTAIN, Respondent. O89 HY 62834 ORIGINAL PROCEEDING (ove 07-148-8608, 07-062-8522, 07-06-8466) (ay: Noon, CJ) Levinson Nekayana; Aedba, end Dutty, 3.) upon consideration of the Office of Disciplinary Counsel's “petition for order granting request of steven 7. Brittain to resign from the practice of law in Liew of discipline” (petition to resign), the Disciplinary Board's “report and recommendation for the disbarment of Steven 7. Brittain’ (report and recommendation for disbarment), and the nenotandum, affidavit, and exhibits in support thereof, it appears the petition to resign is supported by Respondent Brittein’s affidavit and that the affidavit meets the requirenents of Rule 2.14(a) of the Rules of the Supreme Court of the State of Hawal's (RSCH). Therefore, TT 18 HEREBY ORDERED that the petition is granted and the request of Respondent Steven 7, Brittain to resign in Lieu of discipline is granted, effective thirty (30) days after entry as provided by RSCH 2.16(c). IT 15 FURTHER ORDERED that the Disciplinary Board's report and recommendation for disbarment is dismissed as moot. See RSCH 2.14(d) (“resignation in lieu of discipline is a disbarment for all purposes under these rules, including aa reinstatenent”) « IT IS FURTHER ORDERED that (1) upon the effective date of this order, the Clerk shail renove the name of Steven 7. Brittain from the roll of attorneys licensed to practice law in this jurisdiction, and (2) within ten (10) days after the effective date of this order, Respondent Brittain shall deposit with the Clerk of this court the original certificate evidencing his License to practice law in this state. IT 18 FURTHER ORDERED that Respondent Brittain shall comply with the requirements of RSCH 2.16, and the Disciplinary Board shall provide notice to the public and judges, as required by RSCH 2.16(e) and (f). I? IS FINALLY ORDERED that Respondent Brittain shall as 2 condition for reinstatement: (1) make restitution to Nainoa opunui in the amount of $11,040.94, the State of Hawai'i in the amount of $11,000.00, and Acclamation Insurance Management Services/iawai'i Medical Services Association in the anount of $25,279.96: (2) participate in and be monitored by the Attorneys and Judges Assistance Program (“AAP”) until he completes his AAP contract; and (3) pay to the Disciplinary Board all costs associated with these proceedings. patel Honolulu, Hawai'i, March 4, 2008. Ginn lia Lira
db1f58fd00a7fea531c182eddd13e13e746b0779931cf53ec555288c750cdb94
2008-03-04T00:00:00Z
b3471a38-e02f-48d6-979a-8567e8e550aa
State v. Bayly. J. Nakayama concurring in the results only. ICA s.d.o., filed 09/24/2007 [pdf], 115 Haw. 476. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/12/2008 [pdf].
118 Haw. 1
null
hawaii
Hawaii Supreme Court
s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HANAT'T 000. STATE OF HAWAI'I, Respondent/Plaintif£-Appellee DAVID H, BAYLY, Petitioner/Defendant~Appelant wo. 27984 ze, 3 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS g (CASE NO. 2DTA-05-00234) MAY 29, 2008 MOON, C.J., LEVINSON, ACOBA, AND DUFFY, JJ., WITH NAKAYAMA, J., CONCURRING’ IN THE RESULT ONLY OPINION OF THE COURT BY DUFFY. J. Petitioner/Defendant-Appellant David H. Bayly seeks review of the October 11, 2007 judgment of the Intermediate Court of Appeals (ICA), which affirmed the district court of the second circuit’s March 31, 2006 final judgment adjudging Bayly guilty of inattention to driving in violation of Hawai'i Revised Statutes (HRS) § 291-12 (Supp. 2006).* We accepted Bayly’s application for a writ of certiorari and oral argument was held on April 17, 2008. Bayly asserts that the ICA gravely erred in affirming his conviction because there was insufficient evidence to prove that he operated a vehicle without due care or in a manner as to ' the Honorable Rhonda Loo presided. ons #42 FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER * cause a collision with, or injury or damage to, as the case may be, any person, vehicle or other property. Based on the following, we reverse the ICA’s judgment. T. BACKGROUND On December 6, 2005, Bayly vas charged by complaint with Operating a Vehicle Under the Influence of an Intoxicant (OUI) in violation of HRS § 291£-61,? and inattention to driving, in violation of HRS § 291-12.’ A bench trial was held on March 31, 2006. a ty. a The following facts are dravn from the testimony of officer Mark Hada and defendant Bayly at trial. + urs § 2916-62, Antoxicant,” provide: operating a vehicle under the influence of an in relevant part! (a) A person comits the offense of operating 2 vehicle under the influence of an intoxicant if the person operates or assunes actual physieal control of a vehicle: (2) White under the influence of alcohol in an amount sufficient £0 impair the person's normal mental faculties oF ability to care for the person and guard against casualty: (2) nile under che infisence of any drog that smpairs the person's ability to operate the vehicle in a careful and Prugent manner; (3) With''0e"or more grams of alcohol per two hundred ten Liters of breath} oF (4) With 08 or more grams of alcohol per one hundred millsiseers or cuble centimeters of 100d, > uRS § 291-12 provides: Inattention to driving. whoever operates any vehicle without due care or {n'a manner as to cause a collision with, of Injury of damage to, as the case may be, any person, vehicle or other property shall be fined not hore than §400 sr iaprisoned not more than thirty days, oF both, REPORTS AND PACIFIC REPORTER *** On October 1, 2005, at around 12: Oa.m., the Mavi Police Department dispatch sent Wailuku patrel units to the parking lot of 1325 Lower Main Street, on the island of Maui. Officer Hada, who was assigned to the traffic department at that time, heard the dispatch and arrived at the scene at approximately 12:30 a.m. Officer Hada was told by other officers at the scene that the driver was suspected of being intoxicated. Officer Hada described the parking lot at 1325 Lover Main Street as a flat, paved concrete parking lot. The parking lot was an elevated structure, raised about seven to eight feet above Lower Main Street, which ie north of the lot, and separated by @ concrete wall. Between the edge of the parking lot and the concrete wall is a grassy dirt area approximately two feet wide. ‘The parking lot is raised about one foot to one foot and a half above the grassy dirt area, The parking spaces are angled so that vehicles on the side where Bayly’s truck was parked face northwest. Officer Hada observed that the lighting in the area was “very adequate,” and that weather conditions were clear. Although Bayly was not in the vehicle at the time Officer Hada arrived, Hada testified that the front driver's side of Bayly's truck was hanging off of the concrete parking area and wes onto the grassy area. Hada did not notice any damage to any property or to Bayly's truck. FOR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER. According to Officer Hada, the truck was stuck in this position, and “there was not enough torque in the vehicle to actually reverse it out without having to call for = tow.” After approaching Bayly, Officer Hada observed that Bayly was disheveled, had a circular and side-to-side sway, had a strong odor of liguor, and had red, watery eyes, and slurred and mumbling speech. Hada also testified that Bayly was “very arrogant, very cocky, very uncooperative” in his interactions with the officer. Hada perforned the horizontal and vertical gaze nystagmus field sobriety tests on Bayly, and based on his observations arrested Bayly for OUI. Bayly was given a blood test at 2:15 a.m., and the parties stipulated that the test showed Bayly to have 0.068 grams of alcohol per 100 milliliters of blood. At trial, Officer Hada was shown a video of the parking lot at Lower Main Street. Upon viewing the video, Hada recalled + officer Hada testified that sayly exhibited “six clues” during the horizontel nystagmus test, and exhibited vertical gaze nystagmus ae well’ + the prosecution also called or. Clifford wong, an expert in toxicology, to testify regarding Bayly's likely level of intoxication at the Eine of the incigent. Wong performed # retrograde extrapolation and. test ifiet that Bayly’s blood-alcohol Level would have been “definitely greater” than 0.08 at sfound midaiont. The district court, however, found that because of Gacertasney about the anount of tine elapsed between the incident and eh blood test, the testimony was insufficient to establish the earlier Level Because the prosecution failed to nest its burden of proving the OUT charge, end nas not Brought an appeal on the cistrict court's Fuling, evidence ssterial only to the OUI charge is not at issue in this case. Although the fact that Bayly was under the influence of alcohol 1s “germane” to his inattention to driving chacge, gee intra, the specific ang uncertain evidence Eagarding the precise bloed-aicohel level is not inportant in this case, “ ‘+** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER that there was a yellow “bumpster [sic]” in the parking stalls where Bayly’s truck had been parked, and that the driver's side tire of Bayly’s vehicle was off the ledge. When asked whether the “other side was still on” the parking lot, Hada testified that he thought it was “partially off” and “believ[ed) it was hanging on the edge.” Bayly, testifying on his own behalf, stated that it was the front passenger side of his truck that went off the edge of the parking lot, while the left tire or driver's side was touching the bumper.‘ According to Bayly, he slowly entered the parking lot stall to ensure that his truck would touch the yellow bumper with the driver’s side tire so that he would know when to stop. Bayly explained his car going off the edge as follows: Unfortunately that bumper isn't even attached to the concrete and it was pet in a position to where my right side Went off the embankment at the sane tine that I wae Cechnically trying to be, you know, touch that bumper with ny tire Bayly added that he thought his car going off the edge “ha[d) to do with @ bad parking stall,” not “anything to do with impairment or judgment.” With respect to the bumper, Bayly also stated that they are “completely loose,” and that “there's holes in then where they're supposed to be mounted in the parking lot so that they're stationary, but they’re not. They're loose.” «an ite summary disposition order (S00), the ICA noted disagreenent on this point, stating that “while the parties disagreed av to which tire went over the edge of the parking surface, the parties agree that one Wheel did in fact go over the edge.” Ica’ S00 at 2. s FoR Pui CATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER On cross-examination, Bayly testified that he had been to the parking let once before in the daytime, but that he was not aware of the “parking situation” on the side of the lot in which his car was parked on the night of the incident. Bayly admitted that he had consumed two beers that night. Before ruling, the district court summarized the factual findings relevant to the inattention to driving charge based on the testimony and video evidence. With respect to the location of the vehicle, the court reiterated that Officer Hada testified that the front end of the vehicle’s driver’s side tire was over the parking concrete area, and based on the video stated that there was a foot to a foct-and-a-half drop to the grassy dirt area below. The court reiterated Officer Hada’s testimony that the bottom of Bayly’s vehicle was touching the concrete area and that the vehicle’s tire was hanging over the front. Regarding the yellow bumper, the court found that it was heavy but mobile with some force, and did not cover the whole length of the parking stall, such that one tire of a vehicle could pass to the side of the bumper and end up in the grassy dirt area. B. Procedural History After a bench trial, the district court acquitted Bayly of the OUI charge, but found him guilty of inattention to driving. The court explained the basis for Bayly’s conviction as follows: 2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Count tho deal with the inattention to driving and, again, the date end the defendant driving is not in contest "phe court needs to setersine here whether or not lr ate “sith iniury or dansae 13 = vehicle, of other orooerty. So this particular case, as far as the inattention to griving, the Court does tind that Mr, Bayly wae operating his venicle withost due-cars, 1 lookea at the derunitions Sf Intentionally, knowingly and recklessly which would apply Sn this particular area and the Court finds either by the Getendant's intentional actions, by his knowing actions oF by his reckless actions, that he definitely was acting without oe care in this particular manner: T o understand that driving 1s a muitit activity whereby you need your hands to drive, your feet to Sperate the ges pedal, your eyes to watch the road, and your Brain to compute sll of this Obviously the application of force on a gas pedal combined with slowed reaction time due to the drinking, that Mr. Bayly at the very least aduitted to two beers, net being able to stop in time, and ending up in this grassy ar i kind of 2 cinively thal vehicle without duecare ‘Go the court does find the defendant guilty of coun tuo and Finds tl the officer, Or- Wong” Eestinony to be very credible in this particular area, and Y'll find the defendant guilty of count two. Bayly appealed, contending, as he does in his application, that there was insufficient evidence to support his conviction. The ICA affirmed the judgnent of the district court, entering its judgnent on October 11, 2007. In its SD0, the ICA stated that “HRS § 291-12 specifies that the elements of inattention to driving are that a person: (1) operated a vehicle, (2) without due care or in a manner as to cause, (3) a collision with, or injury or damage to, as the case may be, any person, vehicle, or other property.” ICA's SD0 at 2. After reviewing each element, the court found that sufficient evidence existed ‘#* FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** for each. The first element, operation of a vehicle, was admitted. Id, The ICA found that there was sufficient evidence for the second element, operation without due care, based on the following: Ofticer Hada testified that the area was adequately 1it Further, while the parties disagreed as to wiich tire went over the edge of the parking surface, the parties agree chat one wae? dia in fact go over the edge. Sayly's treck endes Sp hanging off the edge of the parking lot, insobilizes te the point where a tow truck was’ required to ewtricate it Based on the evidence, the district court could have inferred that Bayly wes not operating his vehicle with doe care, Bayly admitted consuming two Deere pricr to parking the vehicle. Officer Hada testified that Bayly displayed signs of intoxication and was arrogant and cocky. Or. Wong testified that Bayly's Likely level of impairment at the tine of the incident waz a blood alcohol content in excess: of .08 grams. Evidence of impairment is “germane to 9 charge of inattention to ariving.”” state v. Mitenell, 98° Havel’! See, 401, 15 .3d 316, 327 (Appr 2000) ‘White tayly is Correct in his asiertion that the mere occurrence of an accisent is insufficient to sustains Conviction for inattention to Oriving, here we have the eeldence of an accident, evidence of bayly's intoxication, fand the testimonies of Bayly, the arresting officer, and the Intoxication expert. viewed in the Light mest faverable te the State, this is enough to sustain the conviction. Michell, 94 Mawai't at 401-02, 18 P.3d at 327-26. "We need hot Getermine that the evidence shows negligence ss 2 matter ef law but merely that the evidence shows s possibility that hegligence could be found es # matter of fact. Ja. ck 402, 15 3d at 328 (quoting State v. Tamanaha, (6 Haw. 245, 256, S07 b.2d' 688, 696 (1962) ICA's SDO at 2-3. With respect to the third element, the ICA held that “the State adduced sufficient evidence of @ collision between the botton of Bayly's truck and the concrete parking lot surface to sustain Bayly’s conviction,” ICA's $b0 at 3, citing this court's decision in State v. Williams for the proposition that “the vehicle must nevertheless ‘collide’ with another object.” 114 Hawai'i 406, 410, 163 P.3d 1143, 1147 (2007). FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER Bayly filed an application for writ of certiorari on Janvary 9, 2008. No response was filed and oral argument was held on April 17, 2008. 11, STANDARDS OF REVIEW sufti f Judi couittal [Elvicence adduced in the trial court must be considered in the strongest Light for the prosecution when the appellate court passes on the legal sufficiency of such evidence to support a Conviction; the same standard applies whether the case wae before 2 Judge or jury. The test on appeal 1s not whether guilt is @stablished beyond a reascnable doubt, but whether there wes Substantial evidence to support the conclusion of the trier of fact. State v. Richie, 68 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998) (quoting State v. Quitoa, 85 Hawai'i 128, 145, 938 P.2d 559, 576 (1997)). “Substantial evidence’ as to every material element of the offense charged is credible evidence which is of sufficient quality and probative value to enable a person of reascnable caution to support a conclusion.” Richie, 88 Hawai'i at 33, 960 P.2d at 1241 (internal quotation marks and citation omitted) . ‘The standard to be applied by the trial court in ruling upon a notion for a Judgeent of acquittal ia whether, upon the evidence ‘sewed in the ligne most favorable to The prosecution and in full Fecognition of the province of the trier of fact, @ reasonable Bind might faicly conclude guilt Deyond a seaeonable doubt. An appellate court employs the sane standard of review. State v. Keawe, 107 Hawai'i 1, 4, 108 P.3d 304, 307 (2005) (brackets omitted) (quoting State v. Pone, 78 Hawai'i 262, 265, 892 P.2d 455, 458 (1995)). + FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. 8. or ation Statutory interpretation is a question of law reviewable de nove.” State v. Levi, 102 Hawas's 262, 265, 75 P.3d 1273, 1176 (2003) (quoting State v. Arceo, 64 Hawai'i 1, 10, 928 F.2d 843, 852 (1996)). This court's statutory construction is guided by established rules: First, the fundamental starting point for statutory interpretation is the language of the statute itself, Second, where the statutory language is plain and unambiguous, cur sole duty ie to give effect te its plain ‘and obvious’ meaning. Third, implicit in the task of Statutory construction is our foremost obligation to ih and give effect to the intention of the ture, which 1s to be obtained primarily from the Contained in the statute seself. Fourth, when Ts Goubt, “doubleness of neaning, oF indistinctivensss of uncertainty of an expression used in a statute, an ambiguity exis Peterson v, Hawaii Elec, Light Cou, Inc., 85 Hawai'i 322, 327-28, 944 P.2¢ 1265, 1270-71 (1997), superseded on other grounds by HRS § 269-15.5 (Supp. 1999) (block quotation format, brackets, citations, and quotation marks omitted) . In the event of ambiguity ina statute, “the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” Id. (quoting HRS § 1-15(1) (1993)). Moreover, the courts may resort to extrinsic aids in determining legislative intent, such as legislative history, or the reason and spirit of the law. See RS § 1-15(2) (1993). 10 “* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** TIT. DISCUSSION A. ‘The Elemente of Inattention to Driving HRS § 291-12, “Inattention to Driving,” provides as follows: Whoever operates any vehicle without due care or in a manner as to cause a collision with, or injury or damage to, as the Case may be, any person, vehicle or other property shall be fined not nore than $500 or imprisoned not more then thirty days, oF beth. ‘The ICA interpreted the offense to be composed of three parts: (2) operation of a vehicle, (2) without due care or in a manner as to cause, (3) a collision with, or injury or damage to, as the c nay be, any person, vehicle or other property. As presented at oral argument, the statute is susceptible to another interpretation, in which the disjunctive ‘orm provides for two alternative means of proving the offense (the “alternative means” theory).’ The ambiguity in the statutory text thus concerns whether the “without due care” requirement is tied to the “collision”/*injury"/"damage” requirement (the * This view was set forth by the ICA in an earlier published opinion that examined the inattention to driving statute to determine whether it punished the “sane conduct” as a forner statute for the offense of “Driving Ender the influence of drugs,” HRS § 291-7(a) (1993) (repealed 2000). state rtenoks, 96 Hewel'l 168, 46 P.54 1 (app. 2002). The ICA stated that “the Sianent of driving ‘without due care’ is an alternative one to the element of Griving ‘ina manner as to cause a collision with, or injury cx damage to, a8 the cae say De, any person, vehicle, or cther property(.)’" 1d, at 198) «6 Pid at @ (alteration in original). ‘Under the “alternative means” theory, the prosecuticn is required to prove two things: (1) operation by defendant of a vehicle, and (za) "without Sie"tare” or (2b) “in a manner ae to cause, a collision with, or injury or Gamage to, az the case may be, any person, vehicle or other property.” n ct FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_ “physical harm” element) or stands alone as a sufficient basis for charging the crime. Wie are convinced, based on our reading of the statute in the context of the Hawai'i Penal Code, canons of statutory interpretation, and prior precedent, that the ICA's interpretation in the current case is a better construction of the statute. 1, Problems With the "Alternative Means" Theory ow care”: absur Unconstitutional vagueness The “alternative means” theory creates problems of interpretation with regard to the firet means by which the offense of inattention to driving could be committed -- namely, to operate a vehicle “without due care.” It is a basic rule of statutory interpretation that “[p}rovisions of a penal statute will be accorded a limited and reasonable intezpretation . .. in order to preserve its overall purpose and to avoid absurd results.” State v. Bates, 84 Hawas'< 211, 220, 933 P.2d 48, 57 (1997), Under the first part of the “alternative means” theory, one may be prosecuted for slips in attention or other instances of “inattentiveness” while driving, such as momentarily taking one’s eyes of the road, even when no harm results. Such * We ditter slightly, however, in how we would parse the three parts of the statute, See intra Section II1.A.3. 2 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. possibilities show the potential for arguably absurd applications resulting from the “alternative means” interpretation. The “alternative means” theory also raises potential constitutional concerns. “[WJhere possible, we will read 2 penal statute in such a manner as to preserve its constitutionality. To accord a constitutional interpretation of a provision of broad or apparent unrestricted scope, courts will strive to focus the scope of the provision to a narrow and more restricted construction.” Id. Interpreting the statute to apply to any Griving that betokens, without more, a lack of “due care” raises potential problems of unconstitutional vagueness, by granting indeterminate discretion to arresting officers to apply the statute. This court has explained that {clue process of law requires that 2 penal statute state with reasonable clarity the act it prescribes and provide xed standards for adjudicating guilt, or the statute ie veld for vagueness. Statutes suse give the person of ordinary intelligesce 2 ressonable opportunity to know what Conduct is prohibited so that he or she may choose between Teweal ang Unlawful conduct: vagueness is measured by the following standard: A) criminal statute is void for vagueness unless it: i) gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited 40 that he or she may act accordingly, snd 2) provides explicit standards for those uno apply’ the statute, in order to avold arbitrary and Gisershinatory enforcenent and the delegation of basic Policy matters to policemen, Judges, ana juries for Fesolution on an ed hoc and subjective basis Id. Because it fails to specify an explicit standard, the mere command that one not drive “without due care” -- regardless of B ++ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** any physical harm caused by such driving -- raises potential problems of arbitrary and discriminatory enforcenent. The potential of the “alternative means” theory to violate important penal and constitutional principles suggests that a nore sensible interpretation would be preferred. b. Hawai'i o: not. m “alternative means” theory. Past decisions also provide implicit disapproval of the “alternative means” theory in the context of inattention to driving. In State v Mitchell, the ICA upheld a conviction for inattention to driving when the defendant’s vehicle “plowed inte the rear” of a car in front of it, which sustained “rear-end damage.” 94 Hawai'i 388, 401, 15 P.3d 314, 327 (App. 2000). In explaining its opinion, the ICA stated that Witohelt contends, and se aatee, that mere occurrence of an accident without tore, is anauféscrent to sustains Conviction for inattention £0 ariving: ‘Adeittedly™ the Fecord does not suffer fron plethors of evicence’ as to the phyoteel circanatances of the accident. However” as Seteiied Shove, there is nove in thas Zecord than the mere occurrence of an accident” Id. (citation omitted). By rejecting the possibility that a mere accident could lead to Liability, the TCA also rejected, impliedly and sub silentic, the non-culpable alternative of the “alternative means” theory of the statute.* But see Momoki, 98 + im tact, a8 alscvssed intra, it would violate the Hawal'i Penal Code ke altow conviction for inattention'to driving based en homesipable sender, Secause every elenent of « penal offense must cory a stare of bing of oe Teast “recklessness” unless legislative purpose to inpose ebsolute Liability (continued.--} 4° FOR PUBLICATION IN WEST'S 1 WAN'T REPORTS AND PACIFIC REPORTER *** Hawai'i 188, 46 P.3d 1 (endorsing the “alternative means” theory, discussed supra note 7). Moreover, in all prior published decisions concerning HRS § 251-12, the physical harm element has been present, usualy in the form of 2 collision. See State v, Reves, 57 Haw. 533, 533, 560 P.2d 114, 115 (1977) (defendant, “intending to make a left turn froma tyo-lene highway into a gravel road, moved the vehicle he vas driving from the right to the left lane, where it was struck from behind by a vehicle which was overtaking a line of three cars”); Mitchell, 94 Hawai'i 388, 18 P.3d 314 (xear-end collision); State vs Lee; 55 Haw. 505, 523 P.2d 315 (1974) (clarifying that the inattention to driving statute applies to activity on private roads and accordingly reversing trial court's dismissal of two cases: in both, the charge was that the defendant's vehicle had collided with another vehicle). 2, A Unitary Approach to HRS § 291-12 A better starting point 1s to analyze the elements of the inattention to driving offense according to the framework of (.. .continued) is strikingly clesr. See State v, Rushing, 62 Haw. 102, 105, 612 F.2d 103, 4106 (1380) (*(3]he mere absence of = specification of the requisite state of ind does not provide a sufficient basis fron which to override the general policy of the Hawaii Penal Code that ansolute or strict Liability in the penal Taw ie indefensible if conviction regults in the possibility of imprisonment, land condesnation. “That the legislative purpose to impose absolute liability Should not be discerned lightly by the courts seens very clear.” (Citations enitted.)]. When an offense fails to specify the nentel state required, the Gefault mental states of vintentionsliy,” “knowingly,” and “recklessly” are Spplied.” fae WRS 702-204; dnfra Section 211-Ac2- 1s on CATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER, the Hawai'i Penal Code. See HRS § 702-205 (“Elements of an offense,” include “conduct,” “attendant circumstances,” and vresults of conduct”).! HRS §§ 701-114(1) and 701-114(2) (1993) require proof beyond 2 reasonable doubt of “[e]ach element of the offense,” as well as “(t]he state of mind required to establish each element of the offense.” See also HRS § 702-204 (“[A] person is not guilty of an offense unless the person acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense.” (Emphasis added.)). ‘The inattention to driving statute, HRS § 291-12, is comprised, inter alia, of @ conduct element and a result of conduct element. First, the statute includes a conduct elenent. ‘The conduct element, itself composed of several parts, includes operation of @ vehicle," and the phrase “without due care or in a manner.” The statute concludes with a result element, “as to \ Although HRS § 291-12 was first enacted in 1971, 1972 Haw. Ses. L Act 150, § 2, at 347, prior to the adoption of the Hawai'i Penal Code, 1972 Naw. Sess. L! Ret 9, $1, at 32-162, the Code nevertheless applies to it. ERS $'761-102(3}" (1993); entivies, “All' offenses defined by status Spplicabitity to offenses committed after the effective date,” provisions of chapters 701 through 706 of the Code are applicabl Sefined by other statutes, unless the Code otherwise provides.” ‘offenses 4H that one is operating a zshicla, rather than something else that can be “operated” (e.g. @ bicycle), could also be analyzed as an attendant Circumstance element cf the crime. However, because there is no dispute that Bayly operated a vehicle, it is uinecessary to engage in this analysis. _*#t FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_ cause a collision with, or injury or damage to, as the case may be, any person, vehicle or other property... .” HRS § 291-12. ‘Two aspects of the phrase “without due care or in a manner,” which modifies the type of driving punishable by the statute, should be noted. First, the phrase refers to the manner in which a vehicle is operated, or the nature of that operation. It thus describes conduct. In State v. Reves, this court, apparently relying only on the “without due care” verbiage of the statute, read the phrase to suggest state of mind requirenent, and concluded that inattention to driving “requires only a showing of negligence in the operation of [the] vehicle... .” 57 Haw. 533, 534-35, 560 P.2d 114, 115-16 (1977). However, the Hawai'i Penal Code sets a higher standard for criminal negligence than the mere lack of “due care.” For example, HRS § 702- 206(4) (a) (1993) specifies that “[a] person acts negligently with respect to his conduct when he should be aware of a substantial and_uniustifiable risk taken that the person's conduct is of the specified nature.” (Emphasis added.) HRS § 702-206(4) (d) makes clear that “[a] risk is substantial and unjustifiable within the meaning of this subsection if the person’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the obs n 14+ FOR PUBLICATION IN WEST'S HAWA' REPORTS AND PACIFIC REPORTER. game situation.” (Emphasis added.).” “Gross deviation” from a law-abiding person's standard of care denotes a higher level of culpability than 2 mere deviation from the “due care” standard. To the extent that the “without due care” designation fails to map the state of mind requirement described as “negligently” in the Hawai'i Penal Code, we believe that no state of mind is clearly specified by the statute. Therefore, the default states of mind of “intentionally,” "knowingly," or “recklessly,” would be required as to each element of the statute. See HRS § 702-204 (then the state of mind required to establish en element of an offense is not specified by the law, that elenent is established if, with respect thereto, a person acts intentionally, knowingly, or recklessly."). Accordingly, we overrule Reyes on this point. ‘The second important aspect of the phrase “without due care or in a manner” follows naturally from the above analysis, 1 RS $ 702-206(4), defining “Negligently,” provides in fui2 {a} A person acts negligently with re snould be aware of 9 substantial the person's conduct is of the specified nature (b) A person acts negligently with respect to attendant circunstances nen he should be aware of a substantial and unjustifiable risk that such clrounstances exist. (c)_ A person acts negligently with respect to a result of his conduct vinen he should be aware of a substantial and unjustifiable risk that his conduct will cause such result. (a) A Fisk Ls substantial and unjustifiable within the meaning of this subsection if the person's failure to perceive it, considering the ature and purpose of his conduct and the cireunstances known to Involves a gross deviation from the standard cf care taat 2 sbiding person would cbserve in the sane situation. 1 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER, namely, that the phrase should be understood as a unitary expression of the type of driving punishable by the statute, rather than a construction establishing alternative means to prove the offense. Under this reading, the phrase “in @ manner as to cause” is best understood as an extension of the “without due care” language, linking the conduct and result elements. In other words, beth phrases describe the manner of operation of the vehicle -- which we have interpreted as requiring a mental state of at least recklessness -- and link that manner to the result element of causing a collision, injury, or property damage. In this case, the term “or” is best read conjunctively. See HRS § 1-18 (1993); In. ze City é County of Honolulu Corp, Counsel, 54 Haw. 356, 374, 507 P.2d 169, 178 (1973) ("We are of the opinion that the disjunctive ‘or’ in the context as used in [the statute] actually imparts the meaning of the conjunctive ‘and’. The sense of a word which harmonizes best with the whole context of the statute and promotes in the fullest manner the apparent policy and objects of the legislature mst be adopted.”). Because under the Hawai'i Penal Code each of the two expressions, “without due care” and “in a manner [as to cause], connote at least a reckless state of mind with respect to the conduct of operating a vehicle, interpreting them together best harmonizes the phrase with the statute as a whole. rr {** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * This interpretation avoids the problems outlined above -- potential absurdity and unconstitutional vagueness -- while fulfilling the dictate that “[p]rovisions of a penal statute will be accorded @ limited and reasonable interpretation... in order to preserve its overall purpose,” Bates, 84 Hawai'i at 220, 933 P.2d at 57. It also represents a sensible approach to a statute that is not 2 model of clarity, and is consistent with the manner in which the statute has been applied in our caselew. Based on the foregoing, we hereby reject the “alternative means” theory of HRS § 291-12 expressed by the ICA in Momoki and require that the conduct and result elements all be proven, along with the requisite state of mind, to convict under the statute. 3. Applying This Construction of HRS § 291-12 to the Instant Case Therefore, in order to convict under HRS § 291-12, the prosecution had the burden of proving beyond a reasonable doubt that Bayly (1) operated a vehicle “without due cere or in a manner," (conduct) (2) “as to cause 2 collision with, or injury or damage to, as the case may be, any person, vehicle or other Property” (result of conduct), HRS § 291-12, and that he did so (3) intentionally, knowingly, or recklessly, HRS § 702-204. 1 We acknowledge that “reckless driving” is also punishable by another statute. See HRS § 281-2 2007} ("Whoever operates any vehicle or rises any. (Continued. 20 FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** Bayly asserts that the ICA gravely erred in affirming his conviction of inattention to driving, because there was insufficient evidence to prove that Bayly operated a vehicle without due care or in a manner as to cause a collision with, or injury or damage to, as the case may be, any person, vehicle, or other property. Because Bayly does not dispute that he operated the truck on the night in question, we restrict our analysis to the evidence of any collision, injury, or damage caused by Bayly’ driving. 5 i Sugties “collision With. ‘The Collision Requirement and Bayly’s Argument, Under the result element of HRS § 291-12, the prosecution must prove that there was @ collision, that a person was injured, or that property was damaged. As no evidence of property danage or personal injury was presented at trial, this case hinges on the evidence of a “collision.” (continued) animal recklessly in disregard of the safety of persons or property is guilty Of reckless Griving of vehicle or reckless riding of an animal, as Sppropriate, snd shall be fined not more than $1,000 or imprisoned not more than thirty days, or both.").. Indeed, this fact'supporte the idea that the legislature criginally intended the “physical harm” component inthe inattention fo driving statute to be a mandatory part of the offense, so as to distinguish ceiving "without due care” from ite close relative, “recklessly in Gieressra of the safety of persons of property.” Compare HRS $ 251-12 mith hes §°251-2. a HAWAII REPORTS AND PACIFIC REPORTER In his application, Bayly argues that the prosecution failed to adduce evidence that Bayly collided with any person, vehicle, or other property. Bayly does not deny that his truck “came into contact with the concrete parking lot surface.” Rather, Bayly argues that “this incidental contact [did not] constitute[) a ‘collision.’” Notably, the district court made no findings with respect to this element of the inattention to driving charge." The ICA, in its S00, treated the issue as follow: ‘As to the third element, the State adduced sufficient evidence of a collision between the bottom of Sayly's truck Sha) the concrete parking lot surface to sustain Bay's Conviction 114 Hawai'i 406, 410,163 bola 11463, 118) TOOT) the wehicle mast neverthelces Scollige’ ‘with ancther object”) Ica’s Spo at 3. In its brief to the ICR, the prosecution argued that Bayly’s “operation of his truck resulted in @ collision between his vehicle and the surface of the parking lot,” based on Officer Hada’s testimony that the bottom frame of Bayly’s truck was M in its oral ruling, the court focused only on the “due care” elenent of the statute, discussing the various pieces of evidence in favor of that Ending, The absence of eny consideration of the “collisien"/"inguey") “ganage” clement is clear from the manner in which the court conciuded its Obviously the application of force on a gas pedal combined with Slowed reaction time due to the drinking, that Hr. Bayly at the very, least adnitted to two beers, not being able to stop in tine, and ending “i up in this grassy ares. xt dose nee! So the court does sind the defendant quiltv of count two... 2 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER touching the concrete parking lot surface. According to the prosecution, it could reasonably be inferred “that the bottom frame of [Bayly’s] truck collided with the parking lot surface when it went over the edge of the parking lot.” The prosecution also noted that “the bottom frane of a truck is not @ portion of the vehicle that normally cones into contact with the ground, as the truck's tires usually keep the body above ground level.” 2. ‘The Meaning of “Collision” Because the evidence adduced regarding the alleged “collision” is not in dispute, the question whether 2 “collision” occurred is a pure question of law. Specifically, at issue in this case is whether contact between the botton of @ truck and the surface on which the vehicle sits -- be it a road or a parking lot -~ constitutes a “collision.” More broadly, the basic issue is whether a “collision” occurs when some part of a vehicle contacts only the road itself. In order to answer this question, this court must heed the “plain and obvious meaning” of the statute in order to give effect to the intention of the legislature. See Beterson, 85 Hawai'i at 327, 944 P.2d at 1270. If the statute is ambiguous, land no such plain or obvious meaning emerges, it is permissible for the court to resozt to context and extrinsic aids. See HRS §§ 1-15(1) and 1-15(2). 2 OR PUBLICATION IN WEST'S HAWAT' REPORTS AND PACIFIC REPORTER *** We focus on the critical phrase: “collision with . any person, vehicle or other property." HRS § 291-12. The term “collision” is not defined in HRS chapter 291. As a general matter, “(t]he words of a law are generally to be understood in their most known and usval signification, without attending so much to the Literal and strictly grammatical construction of the words as to their general or popular use or meaning.” HRS § 1-14 (2993). To determine what meaning to attach to the term “collision,” we first review relevant caselaw on the meaning of “collision” in other criminal statutes as well as in the context of automobile insurance policies that cover “collisions.” a. saselaw definitions of “collision” This court recently exanined, although in a different context, a similar “collision” requirement in HRS § 2916-21 (supp. 2004), which mandates that police officers take a blood sample to determine intoxication in the event of a “collision” where the officer has probable cause to believe a person involved committed an enumerated traffic offense. State v. Williams, 114 Hawai'i 406, 163 P.3d 1143 (2007). In Williams, a police officer arrived at an accident scene to find a motorcycle on the side of the roadway, and a male party about fifteen feet away, close to the shoulder of the roadway. Id, at 407, 163 P.34 at 1244, The male was bleeding from a cut on his lip and the officer detected 2 +4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** an odor of alcohol from him. Id. At trial, the officer testified that he did not find any debris on the ground, skid marks, or “anything like that,” and concluded that the party fell from his motorcycle to the ground, Id, at 408, 163 P.3d at 1145, ‘The officer later ordered that a blood draw be taken of the defendant, without the latter's consent. The defendant in Williams had asserted that the police officer was not authorized to order a blood draw under HRS $ 2916-21, because evidence of a “collision” was lacking. Id. at 410, 163 P.3d at 1147. In order to assess whether the evidence was sufficient to constitute a “collision,” this court consulted the Webster's dictionary definition: “collision” ie defined as “the action or an instance of colliding, violent encounter, of forceful striking together typically by accident and so'as to harm or impede. o : 46 (2385) Williams, 114 Hawai'i at 410, 163 P.3d at 1147. The court further stated that “although single-vehicle accidents may qualify as collisions, in such a case the vehicle must nevertheless ‘collide’ with another object.” Id, (citing State v. Entrekin, 98 Hawai'i 221, 223, 47 P.3d 336, 338 (2002), in which a automobile crossed the center divide of a highway and “collided with a dirt embankment”)! % “collide” is defined 2s “to becone impelled into violent contact”; sto strike or dash together in collision typically by accident with a degree cf ferce and shock angwith solid rather than lancine or sidssviping impact.” (eontinued.--) ey *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * Noting the absence of any evidence of danage to the motorcycle or of the motorcycle’s position with respect to the road, the 1ack of physical evidence indicating a collision, and the officers testimony concluding that the defendant “fell off the bike,” this court concluded that the evidence was insufficient to establish a collision. Id. Williams did not directly address the question whether the motorcycle’s position at the side of the road indicated that it “collided” with the road when the defendant apparently fell off the bike. However, by finding the evidence of collision insufficient, we implicitly rejected the notion that a vehicle striking the roadside qualifies as a “collision.” A more direct consideration of the meaning of “collision” can be found in an older Hawai'i case, Alexander vs Home Insurance Co., 27 Haw. 326 (Terr. 1923). The sole question in Alexander was “the liebility of the insurer under the ‘collision clause’ of its policy for damages occasioned an automobile insured by it which accidently capsized or tipped over on to the road over which it was being operated.” Id, at 326-27. ‘The insured car capsized when the driver applied the brakes suddenly to avoid a collision with a horse that had dashed into the road, coming into “violent contact with the ground at the added). 26 FOR PUBLICATION REPORTS AND PACIFIC REPORTER * side of the road sustaining danage to its body, machinery, and equipment.” Id. at 327. The insured, arguing that the accident was covered under the “accidental collision” policy of its contract, asserted that the violent contact with the road was a “teollision’ between the automobile and the side of the road within the definition of that term as employed in the policy.” Id. ‘The Alexander court ultimately held that the accident did not involve a collision. Id. at 332. To reach this conclusion, the court relied upon the generally accepted meaning of the word, rather than what it termed the “technical lexicographical definition," under which the accident might be classified as the “striking together of two bodies” and thus a scollision.” Id. at 328. The court explained the popular meaning of “collision” in the following passage: one describing the accident in the instant case would not refer to it as a “collision.” the term “capsize” or Neiprover" as esployed in the submission would be more Feasonably descriptive of the accident. Were one to refer Eeuan auterobile a2 Being “in collision” without giving Further details, the mind of the auditor would naturally ‘Sisuelize an autonehsle cosing in contact with same other BPittorecress: thie thought is best iilustrated, perhaps Eycthe not ancsomon accident to 2 pedestrian slipping ena failing to the pavenent.. One would not say that he collided with Ene pavement, "A fall 48 not spoken of a8 2 collision. [ds at 326-29 (emphasis added). The court also quoted the Wisconsin Supreme Court's similar rejection of a hypertechnical meaning of “collision”: 2 FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER *opon, its face this appears to be good logic, but the conclusion is neither convincing nor satisfying, One instinctively withholds assent to the result, "the reason is that it makes & novel and unusual use and application ef the word ‘collision’. We do not speak of falling bodies as Colliding with the earth.” In common parlance the apple Eells to the ground; it does not collide with the with all falling Bodies, We speak of the descent as a fall, hnot @ collisions In popular understanging 2 collision does nnot result, we think, from the force of gravity alone. Soch fn application of the term lacks the support of ‘widespread dnd frequent osage’.” Id, at 331 (quoting Bell v. American Ins. Co., 181 N.W. 733 (Wis. 1921). Courts in other jurisdictions have also examined whether similar accidents were “collisions” in the context of insurance coverage. A notable case representing a view opposite to that of Alexander is Rayne v, Western Casualty & Surety Cou, 379 S.W.2d 209 (Mo. Ct. App. 1964). In Bayne, the insured’s tractor and trailer slipped and went onto the soft shoulder of a highway, causing the tractor and trailer wheels to be submerged in soft soil and materially damaging the trailer and its load. Id. at 210. The court was required to determine whether such contact with the soft shoulder of the highway was a “collision of the automobile with another object” under the insurance policy. i & sayly cites @ Louisiana case, Brow v. Union Indemnity Co., 105 so, 918 (ua, 1925), that ia similar to Alexanger both factually and Interns of the court's reasoning. In Brown, the Suprene Court of Loulsiens determined that a there was no collision when the plaintiff-insured, to avoid hitting an onccosing car, made 2 sharp turn that resulted in the cat tipping over and coming into "violent contact with the surface of the road, dd. 2 FOR PUBLICATION IN WEST’ HAWANI REPORTS AND PACIFIC REPORTER *** With regard to “collision,” the court set out the following reasoning: Generally speaking, the determination of whether there hag been a ‘collision’ within ehe intent and mesning of the policy involves (1) whether there was an object which was Struck, end (2) the manner of the striking. As noted by the authorities, there is an irreconcilable conflict in the efforts of the various courts in construing the meaning and application of the word ‘collision’ as it appears in Insurance policy clauses of the type before us. Some courts constrve the word narrowly by limiting its meaning to a so called spopular conception’, Le, £he one 2 Select, and thers ‘SouLact with the around of the hiaheay or shoulder. The majority of the courts, often noting there 1 no proof that the word ‘collision’ hes some commonly known and generally Fecognized restrictive meaning in insurance contracts take the viewpoine that the word ‘collision’ ‘showls be Sefined broadly and in ite dictionary ‘striking against’, thus including every contact with eny part of the highway Id. at 201. Adopting a broad definition of “collision,” the Missouri appellate court next addressed the holdings of other courts with respect to impacts between motor vehicles and the roads they travel on: Courts which have ascribed to 2 dictionary or bread definition of the word ‘collision’ have held that an impact between a notor vehicle and obstacles on the rosd such ss Focks, barricades, noles, excavations, and washoute are Eollissene with ancther object within the policy provisions nthe cther hand it has been held that contact of an Giruepile sith the road itself as where the road surface icimteaular or hes roush spots. does not consticute a Spon ith an ebtect within the meaning of the policy Sig this Senet ines because of 2 genera) feeling chat the Dolley ai ~pomularly underatood” was not intended to furnish Soverace Zor that tyse of scciaent and sometimes Because it was felt that since the autonobile wheels were already in EGistant contact with the highesy curtace and Tao -senge striking it ae the eheels tumned around the collision clause Spon which the autosobile ie Being driven. However, it is obvious from 2 study of the decisions that where the impact of striking occurs other than on the 29 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER road proper, i.e, not on that part constructed, intended and used for travel thereon, the tendency 12 more Libersl toward Finding coverage upon impact between the vehicle and ancther object, incluging those formed by the terrein. Id. at 212 (emphasis added). In applying these principles to the stipulated incident, the Missouri appellate court ultimately concluded that a “collision” within the meaning of the insurance contract had taken place. In reaching this result, the court did not conclude that 2 mere striking of the road was sufficient; rather, it described the incident as the “sudden contact of a moving body, the vehicle, with an obstruction in ite Line of notion,” which it characterized as 2 “solid bank of earth . . not part of the regular roadway intended and used for travel,” as well as “the somewhat perpendicular dirt.” Id, at 212-13. b. neanii * - Based on Williams and Alexander, as well as the mandate of HRS § 1-14 that “[t]he words of a law . . . be understood in their most known and usual signification,” we believe that the term “collision” in HRS § 291-12 should be understood in a colloguial, rather than a technical sense. Under such @ construction, “collision” generally refers to “an automobile coming in contact with sone other vehicle or some perpendicular object obstructing the course of its progress.” Alexander, 27 Haw. at 328. 30 FOR PUBLICATION IN WES *S HAWAII REPORTS AND PACIFIC REPORTER *** Basic canons of statutory construction provide additional support for the adoption of this narrover interpretation of “collision.” In the Bayne case, although the Missouri appellate court adopted a broader interpretation of “collision,” which covered the vehicle’s running off of the road onto soft soil, the court made clear that its interpretation was Limited to the context of insurance contracts. Indeed, the court explicitly invoked “the fundamental principle of construction of insurance contracts that where reasonable to do so such contracts are to be construed in favor of the insured so as to provide coverage and against the insurers who drafted the instrument. 379 S.W.2d at 211.°" The broader interpretation of “collision” was consistent with this principle. In contrast to Bayne, the instant case arises under the penal law, where the basic canons of statutory construction counsel in favor of a less expansive definition. This court has "this principle has been recognized in Hawai'i, see Dairy Road partners gy -dsland Ins Co., 92 Howoi's 398, 411-12, 952°P.2a 93, 106-07 fib00) (Ile have Long esbscribed to the principle that [insurance contracts] host be construed Liberally in favor of the insured and (any) ambiguities {must be) resolved against the insurer.” (Quoting Estate of = {hss Grove, 86 Hawai! 262, 271, 948 P-2d 1103, 1132 (1997).)), and has bee Gpplied in numerous cases construing collision insurance policies. See Annotation, Recovery under automobile property danace oolicy expressly nelods ‘exclu ae, uhere venicli - 23 A.L-R. 24389, 395 tigtei Minis, in accordance with the fandenentel principle of construction of Insurence contracts that such contracts are to be construed in favor of the insureds dt has been held in s number of cages that the word ‘collision,’ as Sted in’ provisions insuring @ motor vehicle asainst collision, is to be construed more strongly against the insurer."). 2 "OR PUBLICATION IN WEST'S HAWAI' REPORTS AND PACIFIC REPORTER ** stated that, “[wlhere a criminal statute is ambiguous, it is to be interpreted according to the rule of lenity. Under the rule of lenity, the statute must be strictly construed against the government and in favor of the accused.” State v. Shimabukuro, 100 Hawai'i 324, 327, 60 P.34 274, 277 (2002) (citations omitted). This rule makes it more appropriate to adopt @ less expansive meaning of the term “collision.” Therefore, for the reasons stated above, the term “collision” in HRS § 291-12 should carry its common meaning, and not the more expansive technical definitions used in sone contexts. 3. Applying this Interpretation of “Collision” to the Evidence in this ci The prosecution asserts that there was a collision in this case based on the contact of the bottom of Bayly's truck ~~ which normally does not touch the road surface -- with the surface of the parking lot when one side of the truck went over the parking lot edge. The prosecution has neither adduced evidence nor proffered any theory about the severity of impact the truck bottom had with the road surface. No evidence of damage to the truck bottom appears in the record. under these circumstances, we cannot say that Bayly “operate(d] any vehicle . . . in @ manner as to cause a collision with... other property.” HRS § 291-12. ‘The prosecution's 2 FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER *** interpretation strains credulity in the face of the commonly understood concept of “collision.” As the court recognized in the similar circumstances of the Alexander case, “{o]ne instinctively withholds assent to the result.” 27 Haw. at 331. Unlike @ typical “collision,” there was no contact with a “perpendicular object obstructing the course of [the vehicle's] progress.” Id, at 328. As Bayly notes, the bottom of a vehicle comes into contact with the road surface in other circumstances that are not commonly understood as “collisions,” such as when 2 car “bottoms out” in a pothole or over a speed bump. In short, Bayly’s vehicle was not involved in a collision as a matter of law. Without satisfying the result of conduct element, Bayly cannot be convicted of inattention to driving. As such, it is unnecessary to reach Bayly’s argument that the ICA erred in upholding the circuit court's determination the he operated a vehicle without due care. IV. CONCLUSION Accordingly, we reverse the ICA's judgment and the district court’s March 31, 2006 final judgment. Sandra Kim (Jon N. Tkenaga, fon the application and Teresa D. Morrison, on the Powe in brief), Deputy Public Defenders, for petitioner/ defendant“appellant 2 #** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * Renee Ishikawa-Delizo (Gerald K. Enriques, on the brief), Deputy Prosecuting Attorneys, for respondent/ plaintiff-appellee CONCURRENCE BY NAKAYAMA, I concur in the result only. Naa cornea »
650c5be2f9bb0c1142c8c82280bcbdc6ba03ee417d325876819b425fba7cdad5
2008-05-29T00:00:00Z
08c49bcf-f534-411d-af3e-af32c717655e
Borges v. Department of Water Supply of the County of Hawaii
null
null
hawaii
Hawaii Supreme Court
vo. 2enne/ IN THE SUPREME COURT OF THE STATE OF HAWAI'I STELLA I. BORGES and RICKIE BORGES, Petitioners-Appellants, vs. DEPARTMENT OF WATER SUPPLY OF THE COUNTY OF HAWAI'I, WATER BOARD OF THE COUNTY OF HAWAI'I, JOHN DOES 1-25, DOE LIMITED PARTNERSHIPS 1-25, DOE CORPORATIONS 1-25, DOE GOVERNMENTAL AGENCIES 1-25, DOE JOINT VENTURES 1-25, INCLUSIVE, Respondent s-Appellees. CERTIORARI "0 THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 02-1-0112) (By: Nakayama, J., for the court") Petitioners-Appellants’s application for writ of certiorari filed on December 27, 2007, is hereby rejected. DATED: Honolulu, Hawai'i, February 1, 2008 FOR THE COURT: Pettit: “ruudaurives Associate Justice Robin R. Horner for petitioners-appellants on the application asta ‘considered by: Moon, C.9., Levinson, Nakayama, cobs, and Duffy, 99.
85e81b34b80ff8680894b71ba9e8960cff1ff090eccd7c3ae2b6bcf12a693fa4
2008-02-01T00:00:00Z
e7b47048-6537-43a1-baa5-7dc576a8970a
State v. Vesper
null
null
hawaii
Hawaii Supreme Court
no, 27875 a3 IN THE SUPREME COURT OF THE STATE OF HAWAT'T el & Ey 2 =r STATE OF HAWAI'I, Respondent /Plaintiff-Appelledis}= = Bos aS DANIEL VESPER, IIT, Petitioner/Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 04-1-2430) ‘Acoba, J., for the court") The Application for Writ of Certiorari filed on Novenber 21, 2007 by Petitioner/Defendant-Appellant Daniel Vesper, III, is hereby rejected. DATED: Honolulu, Hawai'i, January 3, 2008. FOR THE COURT: ‘Associate Justice Jeffrey A. Hawk, on the application’ for pet itioner/defendant~ appellant. Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Dotty, 32. aad
1a755c6f6718574e45c821916f60a843e775a992dcbe9a4238b63d509aeca580
2008-01-03T00:00:00Z
80edee83-bfda-4280-aad6-5f52b7925624
State v. Mars
null
null
hawaii
Hawaii Supreme Court
LAWLIBRARY No. 27977 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'I, Respondent /Plaintiff-Appellee MICHAEL MARS, Petitioner/Defendant-Appellant, CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 04-21-1617) /RDE WRIT OF CERTIO! (By: Duffy, J., for the court") Petitioner/Defendant~Appellant Michael Mars’ s application for a writ of certiorari, filed on January 3, 2008, is hereby rejected. DATED: Honolulu, Hawai'i, February 6, 200 FOR THE COURT: Yann e. Date he Associate Justice James 8. Tabe, Deputy Public Defender, for petitioner /defendant- appellant on the application LUs2ind 9-634 8000 ans considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 29
0fff01939c174f6d178bbfc19e08d1ac8013b602a89de13f2d5c23d185cd4c2f
2008-02-06T00:00:00Z
bb403a40-7108-48ec-8b00-cb34bdfaee8f
Freeman v. Hara
null
29025
hawaii
Hawaii Supreme Court
No. 29025 IN THE SUPREME COURT OF THE STATE OF HAWAI'T DIANA FREEMAN, WAYNE UTA, and JAMES IRETJO, Petitioners, THE HONORABLE GLENN S. HARA, JUDGE OF THE CIRCUIT COURT OF THE THIRD CIRCUIT, STATE OF HAWAI'I, HAWAII EMPLOYERS’ MUTUAL INSURANCE COMPANY,” ING. SERVCO INSURANCE SERVICES CORP. dba AMERICAN ‘1NsBExNcE, ‘AGENCY, INC., and HMP, INC. dba BUSINESS SER HAWAII,” Respondents. ORIGINAL PROCEEDING (eave No. scisozte) Ee (By: Moon, C.J., Levinson, Nakayama, Acoba, and out}, 39. Upon consideration of the petition for a writ of nandanus or ptohsbition filed by petitioners Diana Freeman, Hayne Uta and Janes Ireijo and the papers in support, it appears that a judgnent against petitioners on the settlement lien in Civil No. 05-1-0240 will be appealable pursuant to HRS § 641-1(a) (Supp. 2007) by petitioners Freeman and Uta, as plaintiffs, and by petitioner Ireijo, as a real party in interest (see e.c. Gap v. Puna Geothermal Venture, 106 Hawai'i 325, 104 P.3d 912 (2004); State v. Adam, 97 Hawai'i 475, 482, 40 P.3d 877, 884 (2002). Petitioners can seek a stay of the judgment pending appeal from the circuit court and from the appellate court pursuant to HRAP 8. Therefore, petitioners are not entitled to extraordinary relief. See Kema v, Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus or prohibition is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative aqaw 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.). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus or prohibition is denied. DATED: Honolulu, Hawai'i, March 7, 2008. Sr Pasi Gr aetey lie Komen Dues
57a4d43d9fe5985abf77b0554b7c9fdc9cbb60607169b4bc6c00a7e1a3066722
2008-03-07T00:00:00Z
9a5e14ea-1836-4b56-93fd-dfefd21a2795
State v. Gomes. Dissenting Opinion by J. Nakayama [pdf]. ICA s.d.o., filed 07/11/2007 [pdf], 114 Haw. 284. S.Ct. Order Accepting Application for Writ of Certiorari, filed 12/12/2007 [pdf].
117 Haw. 218
null
hawaii
Hawaii Supreme Court
LAW LIBRARY “+++FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER'*# IN THE SUPREME COURT OF THE STATE OF HAWAI'I 00: aa KEITH DANIEL GOMES, Petitioner/Defendant-Appellant gl zind 02834 wo. 27906 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NOS. 05-1-0661; 05-1-1181) FEBRUARY 20, 2008 MOON, C.J, LEVINSON, ACOBA, AND DUFFY, JJ.7 ‘AND NAKAYAMA, DISSENTING OPINION OF THE COURT BY ACOBA, J. Petitioner/Defendant-Appellant Keith Daniels Gomes (Petitioner) filed an application for writ of certiorari on October 31, 2007, seeking review of the judgment of the Intermediate Court of Appeals (the ICA) filed on August 2, 2007, pursuant to its Summary Disposition Order (SD0) filed on July 11, 2007,! affirming the March 28, 2006 judgment of the first circuit The $00 was issued by Chief Judge Mark £. Recktenweld and Associate Judges Corinne K.A. Watanabe and Daniel R. Foley. ‘+eP0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTERSS# court? (the court) in Cr. No. 0S-1-1181,? convicting Petitioner of bribery of a Witness, Hawai'l Revised Statutes (HRS) § 710- 1070 (1993), and sentencing him to five years’ imprisonment.‘ We hold that the ICA erred in affirming the court’s denial of Petitioner's motions for judgment of acquittal of the charge of bribery under HRS § 710-1070(1) (b) because even in viewing the evidence in the light most favorable to the prosecution, substantial evidence did not exist to support the jury’s finding that Petitioner offered money to a potential witness with the nt to her to av rvice of process. HRS § 710-1070 states in relevant part, as follows: Bribery of or by a witness. (1) A person comits the offense of bribing a witness sf he confers, or offers oF ‘agrees to confer, directly ox indirectly, any benefit upon 2 itness or a person he believes is about to be called as a Witness in any official proceeding with intent ta: a)" “Ineluence the testimony of that persons @) ‘ummoning nin to testitw or (c) Tnuce that person to absent himself from an official proceeding to which he has been legally Stnmoned. (Emphases added.) The indictment in this case charged a violation of HRS § 710-1070(1) (b) and read as follows: + the Honorable Steven S. Alm presided. >the ICA's judgment algo vacated the court's March 31, 2006 anended Judgment in Crs No. 051-0661, that convicted Petitioner of two Counts of Assault in the Second Degree, #RS'§ 7O7-711(1) (a) and (1) (@) (1993), and Tenanded Cr. No, 0S-1-0661 to the court for entry of a new Judgaent’ consistent ith the S00. Petitioner's Application does not contest this part of the Sodgment.. + __Respondent/Plaintiff-Appeliee State of Hawai'i (Respondent) did not file a memorandum in opposition: 2 ‘++ePOR PUBLICATION IN WEST'S HAWAI'E REPORTS AND PACIFIC REPORTER* the Grand Jury charges; con or about the 25th day of March, 2005, to and including the 17th day of April, 2005, in the City and Gounty of Honoluls, State of Havals, [Petitioner], believing Leah Zook [(Zeok)] was to be called as a witness in an Gificial proceeding, did confer, offer, oF agree to confer, directly or indirestiy, @ benefit upon’ said (Zook), with (Emphasis added.) a. the relevant facts are taken from the record.! As best as can be reconstructed, the sequence of events as reiterated in the Application and supplemented by the appellate briefs follow. (took) moved to tanaii, from Mignesots in Secenber 1959 and noteg'buck to Manescta La Sune 2008" "an Febrsnry 2005, She fos living in che Botton story of Gverlooking Mokoles Drive with her young son PEenes Dena Fennes (*Fannes”)~ On February 28, 2008, Zook fai 0 Kathy Schoite (*Senaee"l. about the fant she had sitneased. (emphases added.) According to Respondent, Schulte testified that Zook told her about the incident “within [approximately] two weeks{.]” (Brackets in original.) Schulte also testified that on occasion, Zook “would tell me how she was involved and how she was a witness in a trial” arising from the incident she had witnessed. As Petitioner relates from the record, Schulte confirmed that within s few days up to two weeks after the incident, her good friend Zook told her about the Fight she had witnessed.” Zook also periodically updated Schulte on her status ai a witness in that case. Schulte + Facts in excerpts referred to or quoted from the Application and from the appellate briefs have been verified in the record the proceedings arising out of the fight that Zook and Fannes witnessed are hereinafter referred to es "the essault case.” 3 ‘#eFOR PUBLICATION 18 WEST'S HANAI'T REPORTS AND PACIFIC REPORTERS+® learned trom her then-bovteten: " hat nie coo sriend, (Petitioner, ang (co-derendant Lance Lataen Abguin (anousny) wee defendants in a Februaty 2e pesault case: (emphasis added.) AhQuin was arrested on February 28, 2005. Petitioner testified on cross-examination that he knew AhQuin had been arrested but claimed that he did not know “the degrees (of assault] or what they meant” or that AhQuin “was supposed to go to court soon after he was arrested(.]” The Application recounts from the record that “Zook was subpoenaed to testify at a March 31, 2005 preliminary hearing on the [assault] case.” Tt is not clear from the Application, the briefs, or the Record on Appeal when this subpoena was issued or served. However, Zook did not actually testify on March 31, 2005. Apparently, according to Respondent, Zook was not required to appear on March 31, 2005 because the preliminary hearing was “continued from Mazch 31st to a month down the road.” ‘The record verifies the following, as the Application states: Near the end of March 2005, Schulte was with Nolta [tlhe O'Lounge when they ran into [Petitioner]. Out of Gorseesty, ‘Schulte struck upa conversation with Petitioner| to find cut whether the incident fer which Zook was now_a-criel witness was the came assault with which Petitionsr| eas charced-Schalte tagrified that-ehen she nnd [Petitioner| concluded that it wast ‘Tatitionerl “asked [aehultel to tell Zosk\ not to show up-to court and testify. ‘Gouldplesce tell her not te come te court, that wen Schulte expressed her doubt that Zook could be convinced not'to appear in court, Schulte describes [Fetitioner’s} reaction: "We didn’t wos could tell hee '/POR PUBLICATION IN WEST’ § HAWAI'T REPORTS AND PACIFIC REPORTER*** 1...” On the drive hone, Schulte reviewed with Nolte the Giscussion she had had with [Petitioner] (Emphases added.) Nolta confirmed that he encountered Petitioner “at (T]he © Lounge sonetine in March, mid-March or sometine in April” of 2005 on “either a Friday or a Saturday.” (Enphasis added.) Nolta claimed that before this encounter, Petitioner had not mentioned being involved in a fight in Lenikai. According to Nolta, he introduced Schulte to Petitioner and as “a little icebreaker[,]” Schulte mentioned that her friend had “witns ed something in Lanikai{.)" Nolta related that Schulte and Petitioner “put two and two together” and determined that Zook had seen the fight in which Petitioner was involved. Nolta testified that Schulte did not tell him that Petitioner had asked her to do something for him. However, he did state that as they were leaving The 0 Lounge, he observed Schuite tell Petitioner, “I/11 take care of it,” and pat him on the back. According to the record, as stated by Petitioner, Sehbite thet fis phone showed’ a fev missed calls’ from [Petitioner] z sho ie i Salked to Zook, When tolta said that she bad oats Petitioner) insistent told Nolte to tell Schulte to talk ‘to-dook, tell iook not te-show ub.and that (Petitioner) fould-aive Zook money. About three to four hoore tal [petitioner] again called about the sane subject. (snphasis added.) Nolta testified that he recalled telling the Prosecutor's Office that when he finally spoke to Petitioner on the phone, Petitioner instructed him to ask Zook “if maybe she would take some money” in exchange “[flor her not to show up... .” Nolta testified that he did not accompany Schulte to “++APOR PUBLICATION IN WEST’ § HAMAI'T REPORTS AND PACIFIC REPORTERS** Zook's house that day (ise., the day after encountering Petitioner at The 0 Lounge), but rather “the day after . Regarding the visit, the record indicates, as Petitioner states, that alt about 4:00 or $100 that efternoon,(") Schulte want te BE # $ hulee’s net Bat renaine SGoustaixe in che cxuck, Zook, Fannes, and Zock's son were Rome. Schalte also testified: Thad told [Zook] that T encountered [Petitioner] the night before at The O Lounge and that Ihad asked him whether the involvenent waa the sane Scenario and he aia yes, isase tell sour. and that (Emphases added.) According to Respondent, Petitioner elicited testimony from Schulte that Zook asked “how much” money the offer was for, to which Schulte replied that Petitioner “didn’t mention an amount.” Schulte also answered in the negative when Petitioner’s counsel asked her whether there was any discussion regarding “logistics about testifying or not testifying(.]” The xecord sets forth that thereafter, as Petitioner relates, Zook refused the offer, telling Schulte that she didn’t want an arrest warrant for failing to appear, and that she wouldn't accept noney because it was a bribe. when Schulte Feturned to the truck, she related her discussion with Zook fo Nolta. Noles later told Schulte that he had relaved the essage to [Petitioner] either later that evening or the Noita testified that he told the prosecutor and the prosecutor's snvestigator that and asked [Noles] to-ask (Soneltel task [zookl it x 7 te » mere ia a discrepancy of a day between the Application’s statenent and tlolta’s testimony. seePOR PUBLICATION IN WEST’ § HAMAZ'T REPORTS AND PACIFIC REPORTER*#* —_—————————————— ‘not to show uplii” Nolta also told the prosecutor and the prosecutor's investiga" ‘aubposhaedt. 1, fe hat she ty Sate oe Mavett wien (iineudible()) abe (emphases added.) Petitioner and his co-defendant, AhQuin were indicted for two counts of Assault in the Second Degree on April 5, 2005." According to Petitioner, he was not aware that he might be in any trouble related to the February 28, 2005 incident until early April. On redirect examination, Petitioner answered in the affirmative when asked, “Unlike your brother, who was charged relatively quickly, you weren't actually charged until early April; ia that (correct]?" According to the record, and reiterated in the Application, Zook testified about a conversation she had with + There is no Sndication in the record as to what this subpoena was for. + the indictaent read as follows: ‘the Grand Jury charges ST" On or about the 26[th) day of February 2005, in the City and County ef Honolulu, State of Hawaii, fanguin]. .. and [Petitioner] did intentionally or knowingly Cause substantial bodily injury to Fenokalafi Misi, thereby committing the offense of Assault in the Second Degree, in violation of section 707=711(1} (a) of the Has] ‘count Li: on or about the 28[th) day of February, 2005, In the City and County of Honoluiy, State of Hawaii, {anauin] . sand [Petitioner] did intentionally oF knowingly cause bosily injury to Fonokalafi Misi, with a Gangerous instrument, hereby committing the offense of Assault in the Second Degree, in violation of Section 707- TIL(2) (a) of the [HRS] ‘S+¢FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*## Schulte in mid-April regarding an offer of money in exchange for Zook refraining from testifying. nnid-Aoril, Schulte approached took and asked that she pot relurnto mail to testify in that case, Schulte made chis Bouse on a weekend wien Zook, her child, and Fannes were Rone. Schulte told Zook that her {(Schulte’ s]] ex- boyffiens, [Nolte] knew the defendants. Zook testified shOtLl “Schulte! sold me that these aentlenen told [Noltal Eoutell (scholtel to tell [2eok and Fannesl if we didn't Eeskifyue would Be civen monev.~ Zook also clarified snd ss {in exchange for us not testifving in ‘shia teil (Bmphases and some brackets added.) (Internal citations omitted.) Tt appears from the record that the two accounts concerning Schulte’s conversation with Zook conveying Petitioner's alleged offer pertain to the same occasion although Schulte places it at the end of March and Zook places it at mid-April. In other words, Schulte and Zook only discussed the alleged offer on one occasion, either in late March or in mid-April. Thus, it seems under both accounts that the subpoena summoning Zook to testify at a March 31, 2008 preliminary hearing for the assault case had been served before the entreaty from Petitioner was allegedly conveyed by Schulte. See supra at 4. It is not clear from the record or the briefs whether Zook had been summoned to appear at any other court proceedings such as the trial on the assault case and if she had, on what date the summons was issued or served. 5 At trial, Petitioner testified on his own behalf that when he spoke to Schulte at The 0 Lounge, he had not yet been seeFOR PUBLICATION IN WEST’ § HAWAI'T REPORTS AND FACIFIC REPORTER*#* —— charged in the assault case, “had not reviewed any reports(, 1” and “did not know whether there were any witnesses to the incident.” Additionally, he denied asking Schulte to “tell her Eciend don’t testify.” He also said that on the day after seeing Schulte and Nolta at The 0 Lounge, he left only one message for Wolta, which simply asking Nolta if Zook “could tell them . . what she had seen.” Petitioner denied that in the message he told Nolta to tell Zook not to testify or that he would give Zook money. At some unspecified time, Zook reported the alleged offer to the authorities. Officer Neil Han, who was working the assault case, interviewed Zook on April 24, 2005 or May 2, 2005 regarding the possible bribery. After Officer Han’s interview with Zook, she testified before the Grand Jury regarding the alleged bribery offer from Petitioner. On June 8, 2005, Respondent filed an indictment against Petitioner charging hin with the offense of Bribery of a Witness in violation of HRS § 710-1070 (2) (b) (the bribery case). 1, ‘The assault and bribery cases were consolidated and went to trial on December 13-22, 2005. In its Opening Statement, Respondent described the alleged conversation between Schulte and Petitioner thusly: ‘The bottom line 1s that sometime at the end of March 2005 [Petitioner] fand{ Schulte]... [and Nolta gel to [2}ne 0° {Lounge} fone evening, probably a Friday... + (T)hey got together and [Schulte] basically aeked (Petitioner, “Hey, is this the same thing what I heard [fron] my feiend?(*) And, it turns out that it was s++70R PUBLICATION IN WEST’ S HAWAI'I REPORTS 2ND PACIFIC REFORTERS*# ee confsemed that [Schulte’ ] Information from (Zook) was the Sone incident that (Nolta] got from [Petitioner] . And, {retstioner] tolls (Schulte, “ley, tell your friend (Zook), jou Keon, if she doy’t Jeiel come back ang testitvs it mich! = So, (Schulte) Baysi See, fdow’e think (Zook) would do anything Like chat a het ne bach te Cand Petitioner ssid, “iGo ahead, try. Heap we out{,]” words to that effect (emphases added.) Also, in its Opening Statement, Respondent said the conversation between Schulte and Zook was, “So, at some point . . . [Nolta] drove [Schulte] to (Zook’s] residence . . . and put it to her that . . . [‘Hley, [Zook], there’s some money involved if you don’t come back.[‘] That’s basically what [Petitioner said.]” According to Petitioner, during trial, [Petitioner's] defense counsel thrice aoved for judgment of acquittal of Bribery, arguing that the evidence presented Woo insufeicsent co make outs violation of HES § 710- Tovo(a) (bi, as charged. After thrice denying (Petitioner's) notions, the icourt] subeitted the Bribery case to the Jury, tho [2ic] then convicted [Petitioner] as charged. Petitioner first moved for 2 judgment of acquittal at the end of opening Statements, arguing that “[Respondent] adduced evidence that there was intent to adduce -- process by an assertion by [Respondent] that there was not to show up which is different actually [from the HRS § 710-1070(1) (c)} charge that [Respondent] raised versus [a HRS § 710-1070(1)(b)] charge which is process somebody to receive.” The court ruled, “Okay, I heard \ this portion of Respondent’ s Opening Statement is inaccurate. The evidence shows that Zook did not leave Hawai'i until June 2005. In fact, Reapondent’s Anawering Brief avers that “before (Zook) left Newai's in June of Dod. "she was, ‘approached (in April) by [Schulte] asking (her) not to cone Eitk co teatity in this case.’ (Some brackets in original) (Emphasis sdsed.) 10 seeFOR PUBLICATION IN WEST'S IAWAI'T REPORTS AND PACIFIC REPORTER'## [Respondent] talk about force. So, the motion is denied as far as -- basis the motion is denied on that basis{,] too." When Petitioner made his second motion for judgment of acquittal at the close of Respondent’s case in chief, the court ruled that because of the way the evidence has cone out, we've had Several statements... that were nade both to [Schulte] allegedly by [Petitioner] as well as to (Nolta) by [Petitioner]. And [Respondent] believes that based on all Of those different statements, that based on the standard we have here [Respondent] has proven [the bribery charge]. I sex £ pat toe ser a Je infers ear ng hat in Lesking st he nose # See he on-set ‘SSament of acovites! ts Tustified.” (emphasis added.) Finally, Petitioner moved for a judgment of acquittal at the close of his case, incorporating “by reference the arguments . . . previously made.” The court ruled, “All right. And the [clourt will deny it at this time, as well.” mr. Petitioner presents the following question in his Application. Whether the ICA gravely erred, in violation of (Petitioner's) due process Fights to be convicted goly upon proof of every material element Beyond 2 reasonable doubt, By aftizning the [court's] deniel ef Petitioner’ s] notions for Judgment of acquittal of Bribery despite # complete lack % me transcript of this portion of the proceedings is extrenely gexbied, and the bases for both the motion and the court’ s denial are not Siscernible to any degree of certainty. However, because Petitioner put on Svidence after soving for a Judgment of acquittal at the end of Respondent's Ghse, he waives any error in the denial of his first two motions for Jusgment Geacquittel, See State v, Puciquet, 62 Hawai" 419, 423, 922 P.2d 1032, 1036 (app. 1996) (citations omitted) - u "FOR PUBLICATION IN WEST’ S HAKAI'T REPORTS AND PACIFIC REPORTER: Leridence that Petitionerl had violated HRs §710- ian She - (First emphasis in original and second emphasis added.) This question seens to raise two issues, namely, (1) whether the court erred in denying Petitioner's motions for judgment of acquittal and (2) whether there was sufficient evidence for the jury to find Petitioner guilty under HRS § 710-1070(1) (b). Ww. As set forth above, HRS § 710-1070 recognizes three distinct culpable acts with respect to a witness's testimony. Petitioner argues that Respondent must prove “all of the elenents of the crime charged . . . beyond a reasonable doubt.” (Quoting State v. Cuevas, $3 Haw, 110, 118, 488 P.2d 322, 325 (1971).) HRS § 702-205 (1993) provides that “[t]he elenents of an offense are such (1) conduct, (2) attendant circumstances, and serve that the commentary to HRS § 710-1070 states It 4s apparent that substantial interference with any pert of the process whereby a witness is called to vestify {nan official proceeding 1s to be condemned. And since each part of the process ie of unigue importance in assuring the availability and integrity of the witness, it follows that the sanction ought to be the sane regardless of which Part of chia process is obstructed or perverted. offense to by'neans of conferring ab tecelting a teneiie siee either’ (1) cegeimoays ia Note that the person whom the actor attenpes to induce Gefenses end emphasizing that the ha Sttompe to interfere weh the course of the official proceeding Commentary on HRS § 110-1070 (1993) (emphases added). 2 s+4POR PUBLICATIGN IN WEST’ HAWAI'I REPORTS AND PACIFIC REPORTER**# ee (3) results of conduct as: (a) (a]ze specified by the definition of the offense, and (b) [n]egative a defense . . « ‘The court’s bribery instruction read as follows: ‘There are three material elenents of . . . Bribery of 1a Witness, each of which the prosecution must prove beyond © Eeasonable doubt ‘These three elements are: TIS** Ghat, on or about March 15, 2005, to and Uneliding the i7th day of April, : [Petitioner] conferred, offered, Genter, directly or indirectly, any bene£it upon (Zook) ((conduct) 17 and 2. That (200k) was a person that [Petitioner] ‘Seout! to be called as a witness in (emphases omitted and emphasis added.) (Some brackets in original.) ‘The court also instructed the jury that “legal process means a subpoena.” Petitioner maintains that none of his purported statements “evidenced an intent to induce Zook to avoid legal proceas(] [under HRS § 710-1070(1) (b)] (rather than appearance at court to testify) [under HRS § 710-1070(1) (c)]."” (Emphasis in original.) He asserts that “[t]he testimony by witnesses Zook, Schulte, and Nolta . . . is completely devoid of evidence of the third element: that [Petitioner] acted with the intent to induce Zook to avoid the legal process (L.e., evade service of a subpoena) .” v The ICA held with respect to the question raised in the Application that, “[v]iewing the evidence in the light most 3 ‘s*9FOR PUBLICATION IN MEST’S HAKAI'T REPORTS AND PACIFIC REPORTER**# favorable to [Respondent], there was sufficient evidence that [Petitioner] offered Zook money with the intent to induce her to avoid legal process summoning her to testify.” SDO at *1. As noted previously, Petitioner argues that the ICA's conclusion constituted grave error and states, further, that “[nJo rationale elucidates the terse conclusions” of the ICA that the court did not err in denying Petitioner’s motions for judgment of acquittal and that there was “sufficient evidence” to support Petitioners conviction. vr. As noted by Petitioner, appellate courts view the evidence “in the strongest light for the prosecution” to determine “whether there was substantial evidence to support the conclusion of the trier of fact.” State v, Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998) (internal quotation marks and citations omitted). “Substantial evidence” is “evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion.” Id. (internal quotation marks and citation omitted) .? 2 the appellate courts, in review of # denial of a motion for judgment of acquittal, consider ‘whether, open the evidence viewed in the Light ost foverable to the prosecution and in full recognition of the province of the trier of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.” fudiquet, €2 Hawai'i at 423, $22 P.2d at 1036 (eltations and internal quotation marks omitted). As stated in Pudlguet, HRPP Rule 29(a) provides in relevant part that a court on motisn of defendant or of ite own motion shall order the entry of judgnent of acquittal of one or more Offenses alleged in the charge after the evidence on either sise 1s closed if the evidence is snsuffiesent co sustain = Conviction of such offense cr offenses.” A motion for (continued, 14 seefoR PUBLICATION IN WEST’ HAWAI'T REPORTS AND PACIFIC REPORTER*®* ee vir. Several of the terms used in the statute and corresponding jury instruction" are defined by statute. “Benefit” is defined as “gain or advantage, or anything regarded by the beneficiary as gain or advantage, including benefit to any other person or entity in whose welfare the beneficiary is Anterested{.]” HRS § 710-1000(2) (1993). “Official proceeding” is defined as “a proceeding heard or which may be heard before any legislative, judicial, administrative, or other governmental (continued) “Josoment of acquittel, therefore, “tests the sufficiency of BheTevidence” with regards to cach elenent of the charged offense. (state vl) Alston, 75 flaw. (517,] 527, 865 P.2d [ists] 167 [ta594}T.— then an appellate court reviews the ottigsency of the evidence, it examines whether there was substantial evidence to support the Conclusion of the trier of fact. «. + Substantial Gvidence as to every material elesent of the offense Charged is credible evidence which is of sufficient Guelity and probative value to enable 2 person of {tion to support. conclusion. state vil fone, 18 Hawsi't (262,] 265, 892 F.20 [485,} 458 THO5STT Ieitstions and internal quotations omitted) « ik ‘the Application and the briefs argue in tema of the substantial evidence standard. For the reasons set forth infra, it was error to heve Senied the motion for judgnent of acquittal at the end of all the evidence. Setause there was insufficient evidence to support the verdict, further analysis of the acquittal denial is unnecessary. 4 the Howas's Standard Jury Instructions states that to prove HRS § 7110-10702) (9) beyond a Zeasonable doubt, the prosecution must establish faut (1) the defendant conferred, offered, ‘or agreed to confer, directly or [nlrectiy, # benefit upon another person; and (2) the other person was a ideness of a person that the defendant believed was about to be calle: Wdeness in any official proceeding: and (3) the defendant did so with the Yntent to inguce the person to avoid legal process summoning him to testity. {emay be nated that “while the (Hawai'i Standard Jury Instructions Criminal (HANIIC)] ‘have been approved fer publication, the owas Suprene Court has not approved the substance of any of the pattern [Rstructions{s)” ANIC Introduction, and (the courts) are not bound by then.” States. Calaie, 107 Hawai'i 452, 463, 114 P.3d 958, 969 (App. 2005) (quoting f 90 Hawai'i 175, 101 n+9, 977 P24 163, 189°n.3 (RPP. 3583))- 15 ‘+ *+f0R PUBLICATION IN WEST’ HAWAI'Z REPORTS AND PACIFIC REPORTERY*# agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary or other person taking testimony or deposition in connection with any such proceeding[.]” HRS $ 710-1000(12). Finally, “testimony” is defined as “oral or written statenents, documents, or any other material that may be offered by a witness in an official proceeding.” HRS § 720-1000(17). Several other terms require definition for a proper understanding of the proof required under HRS § 710-1070(1) (b). Witness is defined as (1) “[olne who sees, knows, or vouches for something” or (2) “[o]ne who gives testimony under oath or affirmation [(a)] in person, [(b)] by oral or written deposition, or [(c)] by affidavit.” Black's Law Dictionary 1633 (8th ed. 2004). “Service” is defined as “[t}he formal delivery of a writ, summons, or other legal process” and is “[a]lso termed service of process.” Id, at 1399 (emphasis in original). Relatedly, *process” is defined as “[a] summons or writ, [especially] to appear or respond in court{.]" Id, at 1242, Applying these definitions to the jury instruction, Respondent was required to prove that, first, Petitioner conferred, offered, or agreed to confer, directly or indirectly, something that Zook would consider @ gain or advantage to herself or to sone other person or entity in whose well-being she was interested. Second, that Petitioner believed Zook wi going to be called to give testimony under oath or affirmation in person, 16 s+*P0R PUBLICATION IN WEST’ S HAWAI'I REPORTS AND PACIFIC REPORTER: by oral or written deposition, or by affidavit in a proceeding heard by any governmental branch authorized to receive evidence under oath. Finally, that Petitioner acted with the intent to induce Zook to avoid delivery of a writ or aunmone calling her to appear or respond in court. vitr. Petitioner does not dispute that there is substantial evidence that Respondent proved Petitioner offered to confer a benefit on Zook, a person Petitioner believed was a witness or about to be called as a witness in an official proceeding. As mentioned before, in his Application, Petitioner focuses on the lack of substantial evidence that he acted specifically with the intent to “[ilnduce that person to avoid legal process summoning him to testitv(,)” as required under HRS § 710-1070(1) (b). (mphasis in original.) 1%. In its Answering Brief, Respondent maintains that there was sufficient evidence to support the jury’s conclusion that Petitioner “intended to induce Zook to avoid legal process sunmoning her to testify” because Respondent had shown that: (2) Schulte asked Zook in April “not to come back to testify,” (2) Petitioner was the individual who made the offer, and (3) “[Petitioner] believed that without Zook as a witn [Respondent] would likely be unable to prosecute him.” According to Respondent, Petitioners intent could be “inferred from the evidence of the statements he made to the ” ‘seaFOR PUBLICATION I WEST’ S HAWAI'T REFORTS AND PACIFIC REFORTER'*# —— various witnesses{] in conjunction with the circumstances surrounding his making of the statements.” (Citing State v. Bui, 104 Hawai 462, 467, 92 P.3d 471, 476 (2004). (Citations omitted.)) Respondent maintains that “(t]he use of such evidence and inferences r Jonally drawn therefrom is inevitable because direct evidence of a defendant's state of mind is rarely available.” (Citing Pudiguet, 82 Hawai'i at 425, 922 P.2d at 1038. (Citations omitted.)) x. As a threshold matter, it must be determined whether Respondent could prove Petitioner’s intent by evidence other than Petitioner's statements. Our courts have recognized that, although “a defendant's state of mind can rarely be proved by direct evidence,” Pudiguet, 82 Hawai'i at 425, 922 P.2d at 1038, “proof by circumstantial evidence and reasonable inferences arising from circumstances surrounding the defendant’s conduct is sufficient. . . . Thus, the mind of an alleged offender may be read from his acts, conduct and inferences fairly drawn from all the circumstances.” Bui, 104 Hawai'i at 467, 92 P.3d at 476 (ellipses points in original) (quoting State v. Batson, 73 Haw. 236, 254, 831 P.2¢ 924, 934 (1992) (quoting State v, Sadino, 64 Haw. 427, 430, 642 P.2d 534, 536-37 (1982)) (brackets omitted)); nee alec State v, Yabusaki, 58 Haw. 404, 409, 570 P.2d 844, 847 (1977) (explaining that intent may be proved by circumstantial evidence and it may be shown by ar sonable inference arising from the circumstances surrounding the act). ae s++POR PUBLICATION IN WEST'S EAWAI'T REPORTS AND PACIFIC REPORTER'+# a The decision in Pudiquet is particularly instructive on this issue. In that case, the defendant was charged with Intimidation of a Witness pursuant to HRS § 710-1072 (1) (a) (1993). the elements of Intimidation of a Witness are similar to the elements of Bribery of a Witness. HRS § 710-1072(1) (a) prohibits (1) the use of “force upon or a threat, (2) directed to a witness or a person [the defendant] believes is about to be called as a witness in any official proceeding, (3) with the Intent to influence the testimony of that witness or person.” 82 Hawai‘i at 423, 922 P.2d 1036 (citing HRS § 710-1071(1) (a). on appeal, the defendant contended that the prosecution had not proved any of these elements beyond a reasonable doubt. ‘Id. at 424, 922 P.2d at 1037. With respect to the intent component, the defendant “maintain{ed] that the verbal exchange between him and [the complainant was] not sufficient to show that he intended to influence [the complainant's] testimony.” Id. at 425, 922 P.2d at 1038. During the relevant exchange, the defendant had allegedly yelled at the complainant, *{YJou fucker, I’m going to get you,” after being informed that the complainant had filed a police report alleging that the defendant had stolen merchandise from the conplainant’s store, Id, at 422, 922 P.2d at 1035, The ICA held that the defendant’s statements, the surrounding circumstances, and the inferences that could be drawn therefrom provided “sufficient evidence to support a conclusion by a reasonable person that” the defendant intended to influence 19 ‘+*4F0R PUBLICATION IN MEST’S HAMAI'T REPORTS AND PACIFIC REPORTERS+# the complainant’s testimony in the theft case. Id, at 425, 922 P.2d at 1038. Based on the foregoing, it is clear that Respondent could use evidence other than, or in addition to, Petitioner's statements to prove his intent to induce Zook to avoid service of process. Respondent was not required, as Petitioner would have it, to introduce explicit statements made by the Petitioner vask[ing] Zook to refuse to receive any subpoena or make herself scarce in order to evade service of any subpoena.” Rather, Petitioner’s state of mind could be proved by circumstantial as well as direct evidence. xr. However, viewing the evidence in the Light most favorable to Respondent, there was not substantial evidence to support the jury's finding that Petitioner offered Zook money with the intent to induce her to avoid service of process. HRS § 710-1070(1) (b) requires proof that Petitioner intended to induce Zook to avoid service of process. In contrast, HRS § 710 1070(1) (c) requires proof that Petitioner intended to induce Zook to absent herself from a proceeding to which she had been summoned. The trier of fact could r sonably conclude that Petitioner knew Zook was a witness or could be called as a witness in the assault case because Schulte told him Zook had seen the February 28, 2005 incident and Petitioner knew that 20 seepoR PUBLICATION 11 WEST'S HAWAI'Z REPORTS AND PACIFIC REPORTERS** SSS ‘AnQuin had been arrested for his participation in that incident. ‘The testimony was that Petitioner offered Zook money to “not show up" or “not show up and testify.” The plain meaning of the statements attributed to Petitioner is that Zook should not appear in court to testify about what she witnessed on February 28, 2005. Hence, based on the evidence, the jury could reasonably infer that Petitioner sought to avoid punishment in the assault case by preventing the presentation of eye-witness testimony. However, the leap from asking a potential witness to “not show up” or to “not show up and testify” to the conclusion that a defendant thereby intended to induce that witness to avoid service of process is untenable in light of the structure of HRS § 710-1070. “(T]he starting point for interpreting a statute is the language of the statute itself.” State v, Moniz, 69 Haw. 370, 374, 742 P.24 373, 376 (1987) (citation omitted). Moreover, “where the language of the law in question is plain and unambiguous,” courts are obligated to “give effect to the law according to ite plain and obvious meaning.” Mikelson v. United Ass'n, 108 Hawai" 358, 360, 120 P.3d 257, 259 (2008) {citation omitted). Here, the language of HRS § 710~1070(1) (b) is plain and unambiguous. Neither party argues to the contrary. Under a plain reading of the statute, substantial evidence was necessary to support Petitioner's conviction for inducing a witness or a person Petitioner believed was to be called as a witness “to avoid legal process summoning him to 21 ‘+*FOR PUBLICATION I WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**# ” RS § 710-1070(1) (b). In that regard there was testityl. insufficient evidence to lead a person of reasonable caution to reach the particular conclusion that Petitioner intended to induce Zook to avoid service of process under HRS § 710- 1070 (1) (b) There is a paucity of facts regarding evidence of an intent to “induce . . . avoid{ing) legal process{, ive. a subpoena, ] summoning [the witness) to testify.” Id. There is no evidence of what particular subpoena was the subject of the indictment. There is no evidence of when any relevant particular subpoena was issued or served. No subpoena ordering Zook to appear at any official proceeding is on the court's exhibit list. ‘The evidence fails to indicate what subpoena or subpoenas were the alleged subject of Petitioner’s culpable state of mind. There is no evidence of what “official proceeding” was the subject of the bribery indictment or of Petitioner's state of mind.!* The record on appeal does not contain any subpoena ordering Zook to testify at any official proceeding. Based on the testimony and sequence of events, there is testimony that a subpoena for a preliminary hearing to be \ Respondent's Answering Brief appears to indicate that the bribery case was focused on Zook’s potential appearance at Petitioner's trial. (lPetitioner] knew Zook was a percipient witness to the assault and ber absence from his trial would bean effective means of undermining the prosecution's case against him.”) However, the analysis of the sufficiency of fhe evidence with regard to the charge under HRS § 710-1070(1) {o) remain the ane whether one is focused on Zook’s appearing (1) at the preliminary Rearing, (2) before the Grand Jury on the assault case if in fact Zook Sppeared at thst proceeding, or (3) st trisl,. In sil three scenarios, there IS Insuttictont evidence to prove that Petitioner intended to induce Zook to fold service of process sumoning her to testify. 22 seeFOR PUBLICATION 8 WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER*** Sees conducted on March 31, 2005 had been served, prior to the alleged offer by Petitioner. That hearing was apparently postponed for a month. The subpoena itself is not in evidence. Petitioner's alleged monetary offer was based on Zook not appearing to testify, rather than on her avoiding the service of @ subpoena. ‘The Application does state that “(i]n mid-April, Schulte approached Zook and asked that she not return to Hawai‘ to testify in [the assault] case.” (Emphasis added.) The testimony to which the Application cites, elicited during Respondent’s direct examination of Zook, is as follows: 0. (Respondent). {B)efore you left the islands here in June’ (2008) and sonetine after you made your initial Feports to the police regarding this incident [(the alleged fessule) |, a cone back’ eo eatity in [the assault] case? R.(aook. Yan. Q. Youhave an ides when this may have happened? KR. Tt happened in April. Q: Any part of April that you recall? Rl Couia'have been (the) micdle of April. 9; And wno was this person who approached you? Rl my frtenal,] (Schulte) Q! And, what did she tell you? A. Sno told me that ner ex-toyfriend{, Nolta,] knew ‘the people Iwas planning on testifying against... [Schulte] told me that these gentenen told (Nolta] ‘to tell hher to tell us if we didn’t testify we would be given money (emphases added.) Without more, the exhortation “not to cone back” is Just that -- a request that Zook not appear at trial without regard to whether she had (or had not) been served with a subpoena. Hence, that statement would not be sufficient to sustain a conviction under HRS § 710-1070(2) (b) .* Although not cited by the parties, cases from cther jurisdictions provide sone examples of what conduct would support a finding that a defendant Etta with the intent to induce a witness or porential witness to avoid Seevice of process. For example, the Cauzt of Appeals of Texas affirmed @ (continued. 23 ‘s++f0R PUBLICATION IN WEST'S HAKAI'T REPORTS AND PACIFIC REPORTERS** The record reflects that Petitioner asked Schulte to request Zook not to come to court” and not “to show up.” Nolta testified Zook’s response “vas that she was subpoenaed,” and therefore, had to testify. There is no mention at all by Petitioner of avoiding service of a subpoena. There is also nothing in the evidence circumstantially indicating Petitioner's intent was to have Zook avoid impending service. Under the circumstances, a person exercising reasonable caution could not conclude that there was substantial evidence that Petitioner intended that Zook avoid being served with a subpoena compelling her to testify against him, as opposed to simply not “showing up” to testify against hin. xtr. a In its Answering Brief Respondent argues that the jury could have “rationally concluded” that (1) Petitioner “knew Zook vas a percipient witness to the assault and her absence from his trial would be an effective means of undermining Respondent’ s} case against him"; (2) “people generally know that they are subject to arrest for not appearing at a trial after accepting a subpoena”; (3) Petitioner “believed that without Zook as a continued) Gefendant’'s conviction for tampering with @ witness in violation of Vernon's Texas statutes and Codes Annotated § 36.05(a) (3) (1997), where the defendant (2) informed the witness that she could avoid being subpoenaed if she remained 100 miles outside of Dallas, (2) paid her living and travel expenses to leave Dallas, (3) told the witness not fo reveal where she was staying, and (é) paid for her to return to Dallas at the conclusion of the trial, Amold v, State, 6 S.w36 93, 96 (Fex. Ct. App. 2001) 24 “t++PoR PUBLICATION IN WEST'S HAVAI'T REFORTS AND PACIFIC REFORTER** Oo witness [Respondent] would be unable to prosecute hin": (4) Petitioner ‘would not have expected Zook to risk running too far afoul of the law in order to assist him or jeopardize her ovn freedom by not appearing at his trial after she accepted a subpoenal,]“" so “the jury could have reasonably inferred that ner] made the offe wins 200) kn would not be subject to arrest for not appearing to testify at his trial if she avoided being served with a subpoena” (sone emphasis added); (5) “{bly avoiding service of a subpoena Zook would assist [Petitioner] in accomplishing his goal of derailing [Respondent's] assault case against him without facing the specter of arrest for ignoring a subpoena”; (6) “not returning to Hawai'i would have been an effective means for Zook to avoid being served with a subpoena, and thereby preventing her from being legally obligated to appear at trial to testify against [Respondent]; and (7) the “lack of evidence that [Petitioner] made any statements to the effect that Zook should avoid receiving legal process” does not constitute a failure to prove that intent because (a) Petitioner “cites no authority that holds that such statenents aze the only evidence upon which his intent | ss could be proved” and (b) “any such authority would seem to run counter to the spirit of [HRS] § 710-1070(2) (b), which . . . is directed at preventing ‘the harm that inheres in the attempt to interfere with the course of the official proceedingl,1'” (quoting Connentary to HRS § 710-1070). Respondent's brief fails to set forth how the jury could draw such inferences or 25 s+spoR FUBLICATION JN WEST'S HAWAI'I REPORTS AND FACIFIC REFORTER® ee conclusions from the evidence. Even when viewing the evidence in the light most favorable to Respondent, the conclusions and inferences offered to justify Petitioner’s conviction for bribery are not supported by the record. 8 As to conclusions (1) and (3), although the jury could reasonably infer from the evidence that Petitioner knew Zook might be a witness in the assault case and that Respondent’s case against Petitioner would be weaker if a “percipient witness” was not available to testify, that does not lead reasonably to @ conclusion that Petitioner made the alleged offer with the intent to induce Zook to avoid service of process as opposed to simply not appearing at trial. As to conclusion (2), Petitioner argues Respondent improperly contends that in the “absen{ce of] any evidence, the jury could essentially take judicial notice of [an] unspecified law to conclude that people generally know that they are subject to arrest for not appearing at a trial after accepting 2 subpoena.”"” Petitioner argues this conclusion “constitutes pure speculation” and cannot be deemed sufficient evidence to support Petitioner's conviction, In any event, assuming, arguendo, that people “generally know” a person who does not appear pursuant to 1 Respondent does not cite authority to support the proposition that the jury nay take "Jusieisl notice” of any matter 26 sespoR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REFORTER**# ‘@ subpoena may be arrested, that would not support the conclusion that there was evidence Petitioner intended for Zook to “avoid” being served, as the indictment alleges. As to conclusion (4), Petitioner maintains that absolutely NO evidence was presented upon which the Jury Geuid conclude whet [Petitioner] ‘could or could not have Sxpected Zook to do, Nor was any evidence presented upon tunieh the jury could have inferred chat (Petitioner's) offer ties premised on his purported belief as to what Zook would Knew about ner exposure (Luts, that she could Prosecuted for failing to appear at trial if Rervice of 2 subpoena). + «+ Any inferen Jory Based on this type Of “reasoning” c Bpeculation, ‘rather than a conclusion ba evicence. (capitalization in original.) The record is devoid of any evidence that could support conclusion 4, The evidence showed that Zook and Petitioner did not know each other. There was no evidence of any direct communication between Petitioner and Zook, much less any discussion regarding 2ook’s potential criminal Liability and “how far” she would be willing to go to help Petitioner. Thus, as Petitioner correctly observes, there was no evidence “upon which the jury could conclude what [Petitioner] could or could not have expected Zook to do.” Based on the evidence adduced, and without resorting to pure speculation, the jury could not reach any conclusion about what Petitioner would have expected Zook to do to help him. Also, there was no direct or circumstantial evidence of Petitioner's intent to have Zook avoid receipt of a subpoena. ‘he only evidence adduced at trial by Respondent was that Zook had already been subpoenaed when she received the alleged offer. 20 sespon PUBLICATION IN WEST'S EAWAI'T REPORTS AND PACIFIC REPORTERS+® a Assuming that only Petitioner’ belief as to whether Zook had not yet been subpoenaed was relevant, there is no evidence that Petitioner believed Zook had not yet received a subpoena. As to conclusion (5), assuming, arauende, that Zook could have avoided any legal obligation to testify at petitioner's trial if she avoided being served with @ subpoena, there is no mention of avoiding subpoenas made by Petitioner in the offer that was conveyed. Respondent does not cite to any evidence that Petitioner knew or believed 2 subpoena had yet to be served to compel Zook's appearance at the assault trial and thus intended to induce Zook to avoid a subpoena As to conclusion (6), again the evidence adduced at trial was that Zook had already been subpoenaed (although this evidence is ambiguous as to what subpoena was involved) when she received the offer. There was no evidence that at the time of the offer Petitioner knew Zook was planning on leaving the tn its Anguering Brief Respondent implies that Petitioner sought to have Zook avoid a trial subpoer ton the other hand, the cumblative force of the evidence and the reasonable inferences that could be drawn therefrom when properly viewed in the light most favorable to the Prosecution support the conclusion that. (Petitioner) made Rls offer with the intent to induce Zook to avoid being Served with a subpoena for his upcoaing assault trial. Record, [Bone], 76 sawai't [at] 265, 892 P-2d (at) 458. Even focusing exclusively on took's potential appearance at trial, the evidence viewed in the light most favorable to Respondent does not support this conclusion. The direct evidence of Petitioner's state of mind, Le, Me Statements, merely indicates that he intenced for Zook not to appear at triel. Agzeovers there 1s no cireunstantial or other evidence that would contradict the'plain aeaning cf Petitioner's statesents and lead one to conclude that Whee" Petitioner sctually intended was for Zook to avoid being served with @ ‘pubpoena 28 ‘seePOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTERS** ee jurisdiction or that he had asked her to leave or that he believed a subpoena had yet to be served on her. ‘Thus, the conclusion that Zook could have successfully avoided service of process by leaving Hawai'i cannot, without more, prove that Petitioner intended to induce Zook to avoid service of process. Finally, as to conclusion (7), Petitioner responds that [Respondent] cites to no non-statenent evidence of [Petitioner's] purported intent that Zook should avoid receiving any subpoena.” Moreover, as observed supra, Respondent’ s suggested course, which would essentially allow any evidence of a bribe to satisfy any of the three subsections under HRS § 710- 1070(1), would “run counter” to the legislature’s intention to create three distinct culpable acts. See Commentary to HRS § 710-1070 (stating that “each part of the process [of obtaining witness testimony) is of unique importance in assuring the availability and integrity of the witness”). xrit. To read HRS § 710-1070(1) (b) as encompassing statements merely requesting that a potential witness “not show up” at trial would broaden HRS § 710-1070(1) (b) beyond its express language and blur the distinction between inducing @ witness to avoid receiving a summons to testify and inducing someone who has b summoned to disobey such 2 sunmons. For, if asking a witnes: snot to show up” at a trial could be used to support a conviction for inducing a person to avoid service of process, HRS $ 710- 29 ‘s+eFOR PUBLICATION IN WEST’ § HAWAI'I REPORTS AND PACIFIC REFORTERS*# 1070(1) (b) would swallow up HRS § 710-1070(1) (c), contrary to the plain language of the statute. Thus were this court to interpret HRS § 710-1070(1) (b) as urged by Respondent, such interpretation would render the other subsections of HRS § 710-1070(1) a nullity. See Citv & County of Honolulu v. Hsiung, 109 Hawai’ 159, 173, 124 P.3d 434, 448 (2005) (noting that this court has held that “our rules of statutory construction requires us to reject an interpretation of @ statute or an ordinance that renders any part of the statutory language a nullity” (internal quotation marks and citation omitted)). HRS § 710-1070(1) (c) would then be rendered superfluous, in violation of the “cardinal rule of statutory construction” that, if possible, “no clause, sentence, or word shall be construed as superfluous, void, or insignificant if @ construction can be legitimately found which will give force to and preserve all words of the statute.” In xe Waikoloa Sanitary Sewer Co., Inc., 109 Hawai'i 263, 273, 125 P.3d 484, 494 (2005) (quoting Coon v, City 6 County of Honolulu, 98 Hawai'i 233, 259, 47 P.3d 348, 374 (2002)) (internal quotation marks omitted). To hold otherwise would also result in an absurd interpretation of the express language of HRS § 710-1070(1) (b). See Tauese v, State, Dep't of Labor & Indus, Relations, 113 Hawai'i 1, 31, 147 P.3d 785, 815 (2006) (stating that this court is “bound to construe statutes so as to avoid absurd results” (internal quotation marks and citation omitted)). 30 [FOR PUBLICATION IN WEST'S HAWAI'I REFORTS AND PACIFIC REPORTERS*® xiv. For the foregoing reasons, the ICA gravely erred in upholding Petitioner’s conviction for bribery under HRS § 710- 1070(2) (b), and, therefore, the ICA’s August 2, 2007 and the court’s March 28, 2006 judgments are reversed as to the bribery count. As Petitioner has not contested the ICA's judgment with respect to Cr. No. 05-1-0661, the ICA’s judgment is affirmed in all other respects. Phyllis J. Hironake, Deputy Public Defender, for petitioner /defendant- appellant. Donn Fudo, Deputy Prosecuting Attorney, City and County of Honolulu, for respondent /plaintiff- appellee. 31 Gro— Rh Peerme-e— T= Game Rustin he
ab4adf103fa7743083f6e5ecc970d5cea37f6c52a7df2d0860f24432523aef22
2008-02-20T00:00:00Z
b2e36f25-1e5f-4436-bf0a-ea6b8bb145a7
Flores v. The Rawlins Company, LLC. S.Ct. Order Granting Motion for Reconsideration in Part, filed 03/06/2008 [pdf], 119 Haw. 287. S.Ct. Order Denying Motion for Reconsideration, filed 03/27/2008 [pdf], 117 Haw. 335.
117 Haw. 153
null
hawaii
Hawaii Supreme Court
‘s+ FOR PUBLICATION IN WEST'S HAWAL REPORTS AND PACIFIC REPORTER “ IN THE SUPREME COURT OF THE STATE OF HAWAI'I 00" ALBERT FLORES and DONALD R. RAPOZA, Plaintiffs-Appellees THE RAWLINGS COMPANY, LLC, Defendant-Appellant 02 wo. 28124 8 APPEAL FROM THE FIRST CIRCUIT COURT — (CIV. NO. 04-1-2388) = 2 FEBRUARY 1, 2008 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY DUFFY, Ju Defendant-Appellant The Rawlings Co., LLC [hereinafter, Rawlings), appeals from the August 1, 2006 interlocutory order of the circuit court of the first circuit,’ denying Rawlings’ s motion for sunmary judgment in this action initiated by Plaintiffs-Appellees Albert Flores and Donald Rapoza (hereinafter, collectively, Plaintiffs] against Rawlings. The case was subsequently transferred to this court pursuant to Hawai'i Revised Statutes (HRS) § 602-58(b) (1) (Supp. 2006) . Although the heart of Plaintiffs’ claim is that Rawlings violated the registration requirement for collection ‘The Honorable Karen §.S. An presided over this matter qq TL EOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_ agencies under HRS § 4438-3(2) (1993), this appeal also concerns two threshold issues regarding whether Plaintiffs may bring this claim: (1) whether Plaintiffs have established injury within the meaning of HRS § 480-13 (Supp. 2004), and (2) whether Plaintiffs are “consumers” within the meaning of HRS § 480-13. The circuit court, in denying Rawlings’s motion for summary judgment, found that these prerequisites for bringing suit had been met and that Rawlings was subject to the registration requirement of HRS § 4438-3(2). On appeal, Rawlings argues that: (1) the circuit court erred in ruling that Plaintiffs’ respective payments of what Rawlings terms “valid obligations” constituted “actual injury” sufficient to give them standing to bring suity (2) the circuit court erred in ruling that Plaintiffs were “consumers” under HRS chapter 480, because the transaction involving Rawlings was a recovery of subrogation/reinbursement claims arising from tort rather than a consumer transaction concerning the delivery of medical services; and (3) the circuit court erred in ruling that Rawlings was recovering “debts” within the meaning of HRS chapter 4438, such that it was a “collection agency” subject to that chaptt Based on the following, we vacate the circuit court’s interlocutory order and remand to the circuit court to enter an order granting summary judgment in favor of Rawlings. 2 * FOR PUBLICATION IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER *** 1. BACKGROUND A, Factual Backeround Rawlings is @ Kentucky-based company that contracted with the Hawaii Medical Services Association (HMSA) to provide subrogation and “claims recovery services.” As part of the agreement, Rawlings would retain a portion of the amount recovered. In 2001, Rawlings recovered money from 191 Hawai'i residents. Since 2001, Rawlings has recovered money from Hawai'i residents as follows: 288 in 2002, 309 in 2003, and 347 in 2004. Rawlings has never registered as a collection agency with the Director of Commerce and Consumer Affairs. Plaintiffs were both injured in separate incidents,* and subsequently sought medical treatment for their injuries -~ Flores in April 2001, and Rapoza in May 2002. Prior to receiving treatment, Flores and Rapoza were each required to sign a contract undertaking legal responsibility for payment and assigning any insurance benefits each might receive to the treating hospital. Flores and Rapoza are both menbers of employer-based medical benefits plans administered by HMSA.? Pursuant to their + Rapozs slipped and £611 due to some Liquid on the floor at Foodland in Pearl City, on April 11, 2002. Flores was assaulted on April 3, 2001 2 lores was covers’ exployee of the Theo H. Davis & Company, Ltd.) Rapoza’s coverage was as dependent under his wife's plan, provided by the Unied States Office of Personnel Management ("ORM") 3 ‘+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND. REPORTER. respective medical benefits plans, certain of their medical bills were paid by HSA. Shortly after Plaintiffs received treatment, HUSA demanded that Plaintiffs sign agreements stating that any money HMSA might pay for their treatment was an “interest free loan” from HMSA to them.* After their accidents, Plaintiffs pursued tort clains against the third parties allegedly responsible for their injuries. Subsequently, Rawlings sent “Notice of Lien” letters to Plaintiffs’ attorneys giving notice that EMSA was asserting a claim for the benefits it had paid on behalf of Plaintifts.* The letters essentially stated that HMSA claims @ lien on the anounts it has paid out in medical benefits on behalf of the insured, « sapors and Flores signed identical forms, which included the following section entitled "Lown Agreenent Between You and WMG: Please Read the Following Carefully"! Your plan will not cover your medical expenses if someone else cused or nay have caused your injury or illness because that person may be Fesponsible for paying your expense Since it may take a long time to determine whether any other person is responsible for your injury or illness, you may request MUSA to pay your plan benefits as an interest-free loan until that question is resolved Gnd the other person takes payment, If you accept our lean, you sgree fo notify HMSA when ® financial settlement is reached, and yoo agree ‘that ony reimbursement or recovery you receive from any person(s) responsible for your injary or lliness, must Eitat be veed to repay your have caused your injury or illness, you do not ha Proper docunentation must be sent to HUSA for verification. By signing below, 1 request EMSA to pay my medical expenses as a loan hd agree to the above loan agreement terns 5 Rawlings sent the letter to Flores’s then-counsel on July 5, 2002, ‘and to Repoze's coungel on February 7, 2003. ‘ FOR PU HAWATLREPORTS AND PACIFIC REPO! "ATION IN WEST" which applies to any amounts recovered from notified third parties, and asks for notification of any such recovery. After Plaintiffs settled their claims against the third parties, they each submitted money to Rawlings to settle the HNSA claims on @ compromise basis.’ Plaintiffs assert that both Flores and Rapoza did not admit that either “owed any money or that (Rawlings’s] demand was based on a valid or meritorious claim"? In separate release agreements on Rawlings’s «me text of the letter written to Flores is as follows: four client has paid medical benefits on behalf of its menbers as the Fesult of the accident referenced above. This letter shall serve a5 fotice to you of the lien our client ts claiming for these benefits ‘this Lien applies to any amount now due or which may hereafter become Payable out of recovery or recoveries collected or vo be collected, Shether by Judgment, settlenent or compromise, fon any party hereby Mo settlement of the claim, which includes medical expenses paid by our Client, should be made prior to notifying our office of the potential etlement and reaching an agreenent for reimbursement of these nefits. we are notifying all interested parties of our client's clain/lien and Feqoest that you provide all pertinent information regaraing the adverse and their insurance carrier Jo confirm your representation of our client's meaber and provide the requested information by completing snd returning the encloses form. > aus paid medical benefits on behalf of Flores in the anount of $8,149.68. Flores received $18,006.09 in settlement of his claim against the third-party tortfeasor on March’ 22, 2004, Flores, through his attorney, paid §€,076-95 to Rawlings ‘ga paid medieai benefits on behalf of Rapoza in the amount of $4,399.97, Rapoza received §23,000.00 in settlement of his claim against the third-sarty tortfeasor on Mazch'12, 2003. Rapoza, through his attorney, paid '$2,200-00 to Rawlings. + the record ie devoid of any evidence that Flores or Rapoza made any adaission of owing money oF thet Rawlings's desand wae valid. As support. for (cont insed.--) WAIT REPORTS AND PACIFIC REPORTER FOR PUBLICATION IN. letterhead, both in December 2004, HMSA released Flores and Rapoza “fron any and all claims and liens for subrogation or reimbursement for medical expenses which the undersigned now has or which may hereafter accrue as a result of the accident Procedural History On December 28, 2004, Plaintiffs commenced this action in the first circuit court, alleging claims under HRS chapters 4365,? 4438, and 480. Rawlings admitted that it had not registered as a collection agency under HRS chapter 443B, which it contends does not apply to its business activities. On June 1, 2006, Rawlings moved for summary judgment, arguing that: (1) Plaintiffs could not show any injury from Rawlings’s alleged violation of chapter 4438; (2) Plaintiffs were not “consumers” under chapter 480; and (3) Rawlings was not required to register under HRS § 4438-3 because it did not collect “debts” from #1. -continued) this fact, Plaintiffs point to the Brief settlenent letter and an email Ceamunication from their counsel to Rewlings “urgling] [Rawlings] te Feconsider" the Plaintiff's "reasonable offer to reduce HINSA’s 1ien by SOt to avoid any litigation’... ."" The settlement letters did not Anclude any Suniscions. The letter settling Rapoza’ s claim stated sinply that “(tins letter will confirm our agreenent to settle the above referenced matter,” hich was referred to above by inclusion of the patient nane and date of loss. ‘The letter confirming settionent of Flores’ claim stated! “i have discusses your offer with our client and they will agree to reduce their lien and accept £5,99.91," an anount that was reduced in further negotiation. Likewise, further cenminications between Plaintiffs and Rawlings fail to evidence acnission by Plaintiffs that they owed money of that Rawlings’ s demand ¥ Based on a valid claim. * Xt 4s not clear what claim was brought under HRS chapter 4368. In any event, any such claim ie not part of this sppea! ‘ ++ FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORTER *** Plaintiffs. Plaintiffs countered that: (1) they showed injury because they paid money to Rawlings in direct response to Rawlings’s illegal acts of demanding payment; (2) they were “consumers” because the money Rawlings claimed that they owed was money owed for the purchase of personal healthcare services; and (3) the money paid was a “debt” because it arose from Plaintiffs’ own pre-treatment agreenents with their personal health care providers. Rawlings’s motion was argued on July 18, 2006. The circuit court denied the motion, reasoning, in relevant part: chapter 4438 . . . is broad and it ains to eliminate abusive debe collection practices by collectors « ‘Chapter {438 and the cerm “consumer” in [cjhapter 480, read in the context of thelr purpose and reading the provistons together, cannot be (as) Limited as” (Rawlings) Seeks co argue. Section 4438-3 clearly says that a collection agency cannot collect of try to collect a debt without first registering. Section 4438-20 says that any viclation of (c]hapter 14438 by such on agency 18 actionable under [s]ection 480-2 low, the relevant alleges violation here is the collection of an alleged dest without first having Fegistered in Hawai. The Court agrees that when, pursuant toan agreenent, EMSA paid medical bills for [P]laintifts, then [Rawlings] by contract collected out of [Pllaintifts! Settlenente for those nedics) bills, (P]laintifts were actually injured. ‘no Court fundamentally agrees with [Plaintiffs] that the term "debt" and “consumer” can and should be read to apply to [Pllaintiffe" payment of money arising out of the trantacticn, under our facts, of consensual arrangenent for poynent for delivery of medical services. on August 1, 2006, an order denying Rawlings’s motion for summary judgment was entered. On August 30, 2006, the circuit court signed an order permitting Rawlings to take an interlocutory FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER appeal under HRS § 641-1(b) (1993). Rawlings filed its opening brief on January 10, 2007, raising the same three points of error raised in its motion for summary judgment. The case was subsequently transferred to this court pursuant to § 602- 58(b) (1), by order of the court. Oral argument was held on October 17, 2007. In addition to the arguments made in their appellate briefs, at oral argument Rawlings made several additional arguments about the nature of the amounts owed by Plaintiffs to HMSA, discussed herein. Rawlings also brought to the court’s attention several egal authorities not cited in their appellate briefings, including: a recent decision of the Washington Court of Appeals, Stephens v. Omni Insurance Co,, 159 P.3d 10 (Wash. Ct. App. 2007); 2 1987 informal staff opinion of the Federal Trade Commission; and an unpublished disposition of the United states District Court for the Middle District of Louisiana, Pantin vs ‘The Rawlings Co., Case 3:03-cv-00116-JVP-CN (M.D. La. Apr. 13, 2005). ‘The standard for granting # motion for summary judgment Le settled? (Slumary judgment is appropriate if the plesdings, depositions, answers to interrogatories, and sanlssions on file, together with the affidavits, if any, show thet thefe is no genuine issue as to any Baterial fact and that the moving party is entitled to e Judgnent as a matter of law, A fact ia material sf proof of that fact would have the effect of ishing of refuting one of the essential elements Sf a cause of action or defense asserted by the parties. The evidence mist be viewed in the light Rost favorable to the non-moving party." In other Sods, we must view sll of the evidence and the Inferences dravn therefrom in the Light mest favorable to the party opposing the motion. Ad. (citations and internal quotation marks omitted) Goon v. City and County of Honolulu, 98 Hawai'i 233, 244-45, Fr3a 348, 389-60 (2002) (second alteration in origina) Kauv. City and County of Honolulu, 104 Hawai'i 468, 474, 92 P.3d 477, 483 (2004). B. Statutory Interpretation Statutory interpretation is “a question of law reviewable de novo.” State v. Levi, 102 Hawai'i 262, 285, 75 P.3d 1173, 1176 (2003) (quoting State v. Arceo, 84 Hawai'i 1, 10, 928 P.2d 843, 852 (1996)). This court's statutory construction is guided by established rules: First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language 18 plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, Amplicit in the task of Statutory construction ss our foremost cbligation £ ascertain and give effect to the intention of the Iestsleeare, which 1s to be obtained primarily from the Language contained in the statute itself. fourth, shen there 1s doubt, doubleness of meaning, of indistinctiveness or uncertainty of an expression used in a statute, ambiguity exists Peterson v. Hawaii Elec. Light cov, Inc., 65 Hawai'i 322, 327-28, 944 P.2d 1265, 1270-71 (1997), superseded on other arounds by HRS § 269-15.5 (Supp. 1999) (block quotation format, brackets, citations, and quotation marks omitted). In the event of ambiguity in a statute, “the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” Id. (quoting HRS § 1-15(1) (1993)). Moreover, the courts may resort to extrinsic aids in determining legislative intent, such as legislative history, or the reason and spirit of the law. See HRS § 1-15(2) (1993). TIT. pIscussION AL Raul “collection Agency" th: Alleged to be Due and Oving Within the Meaning of HRS § Ags Rawlings argues that the circuit erred in holding that Rawlings is a debt collector subject to HRS chapter 4438, because it does not recover “debts” as defined by HRS § 4438-1. HRS § 4438-3 provides that No collection agency shall collect or attempt to collect any money or any other foras of indebtedness alleged to be due and owing from any person who resides or does business in this State without first registering under this chapter 10 "++ FOR PUBLICATION wes’ IAWAI'I REPORTS AND PACIFIC REPORTER *** HRS § 443B-3(a).° Tt is not disputed that Rawlings did not register within the meaning of HRS chapter 4438. Therefore, the relevant issues in determining whether Rawlings was required to register under HRS § 4438-3(a) are (1) whether Rawlings is a “collection agency” and (2) whether Rawlings “collect [ed] or attempt [ed] to collect any money or any other forms of indebtedness alleged to be due and owing” from a Hawai'i resident. Rawlings is a “Collection Agency.” Rawlings’s principal argument is that it is not subject to the registration requirement because it does not collect “debts.” To the extent this argument relies on federal law, however, it is misconceived. Because regulation of a “collection agency” under chapter 4438 only requires that a “person” -~ Like Rawlings -- “offer{] to undertake or hold{] oneself out as being able to undertake or does undertake to collect for anothe person, claims or money due on accounts or other forms of indebtedness,” HRS § 443B-1 (1993) (emphasis added), for a fee, \ RS § 443-3(b) explaina that “(rJegistration shall inclu (2) Submission of # complete application for registration: {2} Souaission of & certificate of good standing or 2 certificate of authority from the business registration division: (3) Payment of appropriate fee: (4) Filling ang seintenance of a bond in the anount prescribed in (5) Maintenance of a regular active business office in the State: end (6) Designation of a principal collector, as prescribed in section Besar n 9+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER, it is not required that the collection agency at issue collect ‘debts.” Rawlings has not argued that it does not collect “claims or money due on accounts,” but only that it does not collect “debts.” Furthermore Rawlings did not rebut this argunent in its reply brief, although it was clearly raised by Plaintiffs in their answering brief. Rawlings’s misreading of our statute appears to be based on an erroneous supposition that the federal Fair Debt Collection Practices Act (POCPA) has the same coverage as our law, which is evidenced by Rawlings’s extensive reliance in its briefings on federal caselaw interpreting the FOCPA. Hawaii's law defines “collection agency” more broadly than the federal law, which regulates entities it defines as “debt collectors.” Whereas 2 “collection agency” in our law includes persons who collect claims or money due on accounts, the FOCEA definition of “debt collector” is limited to collection of “debts.” gee 15 U.S.C. § 1692a(6) (2006) ("The term ‘debt collector’ means any person who uses any instrumentality of interstate commerce or the ails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to S Neither is HRS § 4438 jistration requirenent, linited to debt collection, but expressiy prohibits any unregistered collection agency fron “collect(sng] or attempt [ing] to collect any Roney or eny other indebtedness alleged to be due and owing sss 1 HRE § 4438-3. (empha adsed) See intra. 2 FOR PUBLICATION IN WEST'S HAWAET REPORTS AND PACIFIC REPORTER collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” (Emphases added.)). The statutory structure of the Hawai'i Revised Statutes reinforces the view that HRS chapter 4438 is broader in its coverage that the federal statute. Hawai'i law contains a separate chapter entitled “collection practices,” HRS chapter 4800, that is “intended to cover collection activities by debt collectors in collecting consumer debts.” HRS § 4800-1 (1993). Unlike chapter 4438, chapter 480D specifically covers “debt collectors,” which are defined as “any person, who is not a sollection agency, and who in the regular course of business collects or attempts to collect consumer debts owed or due or asserted to be owed or due to the collector.” HRS § 4800-2 (1993) (emphasis added). Both chapters were passed by the legislature in the sane act. 1987 Haw. Sess. 1, Act 191, at 423- 30. The differences between the two chapters provide a clear indication that the legislature intended the regulation of “collection agencies” in HRS chapter 4438 to be distinct from its regulation of “debt collectors.” ‘Therefore, federal law interpreting the latter term cannot be interpreted to cover “collection agencies." Rawlings argues that federal law should set the precedent in teu of Law on point. However, federal law does not set precedent merely based on an absence of Hawai'i case law. Foreign law can be persuasive in Ranai's, but only when there ts a basis for its application. See (continued. ..) a ++ FOR PUBLICATI IN WEST'S HAWATI REPORTS AND PACIFIC REPORTER The critical distinction between our law and the federal law is that our statute is targeted towards those who collect “claims or money due on accounts or other forms of indebtedness” while the federal law is limited to those who collect “debts.” The terms “claims” and “money due on accounts” are not defined in HRS chapter 4438 and, as such, should carry their ordinary meanings. It is apparent that Rawlings was collecting “claims” that HNSA hed against Plaintiffs. Even Rawlings characterized its collection activity in this manner, stating in its opening brief that it had sent the Plaintiffs’ attorney “notice that HNSA was asserting a claim for the benefits HMSA had paid on behalf of each (Plaintiff) for the injuries sustained as a result of the third-parties’ actions.” (Emphasis added.) 2 (. continued) Fresh Prodice await. Inc, v. Way, 112 Hawai'i 489, 507 0.33, 146 P.3d Toe, 1084 N33 (2006) (AIthough thie court has used federei precedent on cccasion in the past to guide its interpretation of state... laws, such Consultation is solely to aid interpretation and only makes sense wnere the statutory language is the sane or similar in ail relevant respects.” (Citation saitted.|) the term “claim” is defined in the following ways relevant to this issue: (1) “The assertion of an existing right; any right to peyment oF to an equitable remedy, even if contingent or provisional"; (2) A demand for money, Property, or s legal renedy to which one asserts a right’. <<" and (3) san interest or renedy recognized av law. sy. a zea (th ed, 2004) (some definitions are not Anciuded herel. This extreerdinee sty broad definition would appear to encompass the amoints that Rawlings sought to Fecover from Plaineiffs on behalf cf HRA. u s+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * Rawlings Collected "Money or Any Other Forms of Indebtedness Alleged to be Due and Owing.” A collection agency that collects or attempts to collect “any money or any other forms of indebtedness alleged to be due and owing” from a Hawai'i resident must register. HRS § 4438-3. ‘The moneys collected from Plaintiffs by Rawlings would appear to fit under this broad category. At oral argument Ravlings asserted, for the first tine, that the amounts it collected were not “due and owing,” and thus not subject to the registration requirement of HRS § 4435-3. Separate and apart from the fact that Rawlings failed to assert this argument in the circuit court, it fails on its merits. Rawlings did not present a clear factual argument for its assertion that the money it had collected from Plaintiffs was not, Lieged to be due and owing.” At different pointe Rawlings recast its argument into separate assertions (1) that the amounts collected were “unliquidated” and (2) that they were not in “default” at the time Rawlings sought to collect upon them. However, contrary to Rawlings’s argunent, neither of these scenarios negates the conclusion that because of the loan obligation, these amounts were “alleged to be due and owing” when Rawlings collected upon then. Although it is true that the amounts collected were “unliguidated,” nothing in HRS chapter 4438 limits its 1s BOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER, application to the collection of “liquidated” claims. The term wunliquidated” means “not previously specified or determined.” Black's Law Dictionary, supra at 1574, Black's defines the more specific term “unliquidated debt” as “a debt that has not been reduced to 2 specific amount, and about which there may be 2 dispute,” id at 433, and the term “unliquidated claim” as “a claim in which the amount owed has not been determined.” Id. at 254. Bven though the amounts collected by Rawlings were not “Liguidated,” Rawlings nevertheless attempted to collect wnoney . . . alleged to be due and owing.” As its “Notice of Lien” letter indicated, the lien claim “applie(d] to any amount now due or which may hereafter becone payable out of recovery or recoveries collected or to be collected, whether by judgment, settlement or compromise, from any party hereby notified.” As such, Rawlings clearly attempted to collect money that it alleged was “due and oving.”* 4M ‘the distinction between “due and owing” and the “unliquidated” status of a debt is clear from the following discussior In a broad sense, ‘debt’ simply means something dus_and oxina. Mowever, Eraditionally’ in the Lav, ie hes been given a nazrovor end nore Hestricted meaning, A debt arises out’ of a coneractual relationship Bot hot ali contracts result in a debt. At common lax, a tdest’ signified @ Certain or definite sum of noney. However, this nas not meant ¢ Bartlewiar fixed sum of money, bot, such a sus ae can be Eixed data by computation, oF which is capable of being v"SGiearly, within the purport of the rule discussed at the beginning of this section, sun which 1s sought to be recovered by way of sttachnent of garaishaont which is entirely hypothetical oe Sonjectursi, and sniiguidated or uncertain ae to the amount owed, i not fan action fora *debt” within the statutes.” (continued...) 16 2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Rawlings’s assertion that the amounts collected were not in “default” at the time collection was sought is also not relevant to our HRS § 4438-3 analysis. Rawlings’s argument appears to be based on the FOCPA, and not Hawai'i law. In an unpublished decision of the United States District Court for the Middle District of Louisiana proffered to the court by Rawlings at oral argument, the District Court dismissed an FDCPA claim against Rawlings because the debt asserted was not in default at the time it was obtained. Dantin v, The Rawlings Co., Case 3:03- cv-00116-JVP-CN (M.D. La. Apr. 13, 2005). The court relied upon a statutory exception to the definition of “debt collector” under the FDCPA, according to which a party is not a debt collector if its collection activities “concern{] a debt which was not in default at the time it was obtained by such person. . . .” 15 U.S.C, § 1692a(6) (F) (441). The District Court in Dantin concluded that this exception applied, because Rawlings had obtained information from the insurance company regarding M(, continued) This view that the concept of ‘debt’ is opposed to an unliquidated sum or claim was clearly expressed in Henriques v. Vinhaca, supra, 20 Haw, 702. While the claim in Zenriques was not only unliquidated in the sense of being uncertain put aise contingent, still the fact remains that while not contingent. the instant claim is still clearly Gnligaidsted in that sts ascertainment requires the exercise of Judgment, discretion and opinion and not mere calculation or Gonputation. As indicated generally, as well as in Henrigues, the tine for ascertainsent of the certainty of the claim, or the capacity of the claim to be reduced to certainty, is the tine when process 1s issued. ¥ 47 Haw. 252, 260-61, 386 P.34 886, 689-90 (1963) (emphasis sage) u * FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER * payments made by the company on behalf of the plaintiff one year prior to the time at which the plaintiff received settlenent funds from the third-party tortfeasor. Id, at 9. Therefore, there was no “default,” i.e., the amount oved to the insurance company based on the subrogation provision in its policy, at the time the debt was obtained by Ravlings for collection; “default” occurred only later, when the plaintiff reached a third-party settlement. Because HRS chapter 4438 lacks the FOCPA exemption for debts not in default at the time obtained, the Dantin case has no relevance to Rawling status as a collection agency subject to the registration requirement of HRS § 4438-3. ‘Therefore, based on the undisputed facts, Rawlings is a “collection agency” within the meaning of HRS chapter 4438, subject to the registration requirement of HRS § 4438-3." % the remaining authorities that Rawlings brought to the court’s attention at oral argument are similarly unhelpful to ita case. In the Stephens case, 2 Washington appellate court determined that a credit collection agency had violated the Washington Consumer Practice en it sent collection notices stating an parties on Dehaif of insurance companies sho were asserting subrogation rights against those parti ‘oma 159 Pes 10 (Wash. Ce. AP 2007), reconsideration denied, Fanaa v. farmers Insurance Co,, No. 56625-3-1, 2007 itash. App. LEXIS 1332 (Wash. Cty App. Hay 25, 2007), geconeideration senies, Oar No. $7068"¢-1, 2007 Wash. APB. LEXIS 1593 wash. Ct. App. Way 25, 20071, Th Stephens, the’ Washington court concluded that even if subrogation ‘claims are not regulated by the FOCPA, collection activities in this area are not exenpt from the Mashington Las, Which applies broadly to “unfair or deceptive act lel or precticels).” 1d. at 32. ‘Rawlings cited Stephens for the proposition that subrogation clains are not voebts, which the court determined in the context of the FOCPA. 1d. at 21-22. However, not only is this analysis inapplicable to Hawati law, put the Sianhens court also repeatedly referred to the clains at ie “subrogation Claims," which are encompassed within the broader’ “collection agency” under HRS § 4438-1. ‘The FIC letter cited by Rawlings 1s algo inapplicable, as it merely (cont insed, . 8 {#** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER B. Plaintiff: to wirements for Bringing Suit Against Rawlings under HRS $ 460-13, In order for Rawlings’s failure to register to be actionable by private litigants, the threshold requirements of HRS § 490-13 must be satisfied. HRS § 480-13 governs lawsuits whose subject is “anything forbidden or declared unlawful by this chapter,” HRS § 480-13(a), and “unfair or deceptive act[s] or practice(s} forbidden or declared unlawful by section 480-2.” HRS § 480- 13(b)."* ‘The Latter provision, which concerns “consumer” lawsuits and applies to this case, provides that Any consumer who is {niured by any unfair or deceptive act, or practice forbidden or declared unlawful by section 450-2: (2) May sue for damages 2 and (2) May bring proceedings to enjoin the unlawful practices continued) interprets the term “debt” under the FOCRA. In any event, the letter ie Feadily distinguishable, as it concerns the collection attempts by an insurer against 0 thira-party tortfeasor who did not receive any personal services f¥om the ingurer, rather than collection attempts against an insured who did Eeceive such services. MRS § 480-2 include: competition and unfair or trade or coamerce are unlawst sleo provides that! a) No pergon other than a consumer, the attorney general or the director Of the office of consuner protection may bring at ction based upon unfair or deceptive acts or practices declared unlawfal by this section, 2 declaration stating that “[ulnfair methods of tive acts or practices in the conduct of any re“yms'§ 480-2(a) (Supp. 2008). HRS $ 480-2 (e) Any person may bring an action based on unfair methods of conpatition declared uniauful by this section” uns § 480-2. a9 WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER (OW PUBLICAT HRS $ 480-13(b) (emphases added). Any violation of chapter HRS 4438, which regulates “collection agencies," constitutes an wunfair or deceptive act{] or practice[] in the conduct of any trade or commerce for the purpose of section 480-2." HRS § 4438- 20 (1993). Therefore, the relevant issues regarding Plaintiffs’ right to bring this lawsuit are (1) whether Plaintiffs were “consumers” within the meaning of HRS § 480-13, and (2) whether Plaintiffs were “injured” within the meaning of HRS § 480-13. Because, based on the undisputed facts, Plaintiffs have failed to show that they were injured, they may not bring suit under HRS § 480-13. 1. Plaintiffs are “Consumer: In order to bring 2 private cause of action based on vunfair or deceptive act(s] or practicels) forbidden or declared unlawful by section 480-2," such as violations of HRS § 4438-3, fone must be a “consumer” within the meaning of HRS chapter 480. Rawlings clains that the circuit court erred in holding that the Plaintiffs were “consumers,” because they neither purchased nor attempted to purchase, nor were they solicited to purchase anything from Rawlings or HMSA, as required by the definition of "consumer." Rather than consumers, Rawlings contends that Plaintiffs were third-party beneficiaries of employer health care contracts with HMSA, and as such may not bring suit as consumers 20 s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** under our caselaw. Plaintiffs maintain, on the other hand, that one nay qualify as @ consumer in the context of a violation of HRS chapter 4438 by showing that the debt collected upon arose in a consuner context. Because consumers do not typically purchase services from collection agencies, Plaintiffs contend that requiring such a purchase would lead to an absurd result. aR a et “consumer” is defined by statute to mean: fa natural person who, primarily for personal, family, ox household purposes, purchases, attempts to purchase, or is Belicived to purchase goods of services or who connits oney, Property, of services in a persenal investment « HRS § 480-1 (1993). Rawlings argues that neither of the Plaintiffs meet this definition because neither Flores nor Rapoza purchased, attempted to purchase, or was solicited to purchase goods or services from Rawlings. Rather, both are participants in employer health benefit plans: Flores directly as an employee of ‘Theo Davies, and Rapoza as a dependent on his wife’s plan through her employer, the federal government. Rawlings points out that the contracts between the employers and HMSA are exclusively between the naned parties. Rawlings further argues that rather than consumers, plaintiffs are third-party beneficiaries of their employer's contracts with NSA, and as such cannot bring suit under HRS 2 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER § 480-13. In support, Rawlings points to this court's decision in Hough v, Pacific Insurance Co,, 83 Hawai'i 457, 927 P.2d 858 (1996), and the Intermediate Court of Appeal’s (ICA) decision in Hunt v, First Insurance Co. of Hawai 2, 82 Hawai'i 363, 922 P.3d 976 (App. 1996). In Hough, this court considered whether an injured employee, who had brought multiple tort claims against the insurer based on its conduct in handling his attempt to obtain workers’ compensation benefits, could also bring a separate claim for damages against the insurer based on HRS chapter 480. 63 Hawai'i at 462, 927 P.2d at 863, This court held that the plaintiff could not bring an unfair or deceptive practice clain, because ough 12 not 2 consumer within the meaning of thie statute. He did not purchase workers" compensation insurance fron Pacific. He is a third party beneficiary of the contracts of inaurance purchased by his employer: Id. at 470, 927 P.2d at 871. The court further held that Hough could also not bring a derivative third-party claim under HRS chapter 480, because the insurer, as a corporation, was not a consumer. id, at 471, 927 P.2d at 872. See alse Hunt, 62 Hawai" 363, 922 P.3d 976 (holding that customer of grocery store, who was injured by slip and fall at store, could not bring HRS chapter 480 claim against store's insurance company which had refused payment of medical claims, because customer, not having 2 +++ FOR PUB! made any purchase from the insurance company, was not a “consumer” who could bring suit)."” b. Plaintiffs’ arcument Plaintiffs do not claim to have made or attempted any purchase from Rawlings, nor do they claim that Rawlings solicited any. Rather, Plaintiffs argue that in the context of debt collection, the proper focus should be on whether the underlying obligation or debt is a consumer debt, as opposed to a commercial or business one, In other words, if the alleged debt arises in a consumer context, then the debt holder is a “consumer” who may bring suit under HRS § 480-13(b). Under Plaintiffs’ theory, they would qualify as “consumers” becau Rawlings was collecting on the “loan agreement” from HMSA puzporting to advance Plaintiffs the expenses for their medical treatment, which is akin to “service” for “personal” purposes. See HRS § 490-1, Plaintiffs contend that the opposite result would lead to an absurd result and controvert the clear intent of HRS chapter 4438 to “protect debtors from abusive collection agencies.” Sen. Comm. Rep. No. 541, in 1987 House Journal, at 1355. » Plaintiffs claim that Houah and flunt are distinguishable because those cases do not concern debt collection and Plaintiffs are not trying to enforce Plaineiete Lbility snsvrance are for the purpos Giaine arieing from the operation of the busine mandated by tne state fomployees.” age is insurance coverage for '1 REPORTS AND PAC! REPORTER In support of their argument, Plaintiffs cite the definition of “debt” in HRS § 4438-1, which they contend shows that “in the context of debt collection, the focus is on the nature of the alleged debt.” HRS § 4438-1 defines “debt” to mean any cbligation or alleged obligation of » consumer to pay honey or other forms of payment arising out of # transacticn Ee WOLGh the’ noney, property, insurance, or services, which ‘are primarily or personal, family, oF household purgoses, whether of not such ebligation has been reduced to judgment. HRS § 4438-1 (emphases added). Based on this definition, Plaintiffs assert that the loan agreement from HNSA to pay for their personal medical treatments amounts to a “transaction” within the meaning of “debt.” In the context of collection agency abuses actionable under HRS § 480-13, it is unlikely that the legislature intende to Limit the ability to sue to those who had made, attempted to make, or were solicited to make a purchase by a collection agency. This would be an inconsistent, if not absurd, result that the legislature would not have intended. See Beneficial Hawai'i, Inc v. Kida, 96 Hawa’ 289, 309, 30 P.3d 895, 914-15 (2003) ("[T)he legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality.” (Citations and internal quotation marks onitted.)). HRS § 4438-20 states that any violation of chapter 4438 “shall constitute . . . unfair or deceptive acts or practices in 2 FOR PUBLICATION IN WEST |AWATT REPORTS AND PACIFIC REPORTER the conduct of any trade of commerce for the purpose of section 480-2." HRS § 4438-20. HRS § 480-2 in turn specifies that consumer “may bring an action based upon unfair or deceptive acts or practices,” HRS § 480-2(d), and the prerequisites for bringing suit are laid out in HRS § 480-13. See HRS § 480-13(b) ("Any consumer who is iniured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2. . (2) May sue for damages . . . . ; and (2) May bring proceedings to enjoin the unlawful practices . . . By deening violations of HRS chapter 4438 an unfair or deceptive act or practice for the purposes of HRS § 480-2, it is evident that the legislature wished to have chapter 4438 be enforceable in the same manner as other unfair trade practices under chapter 480. If enforcement were limited to individuals who had purchased, attempted to purchase, or were solicited for purchase of a service or good from 2 collection agency, enforcement of HRS chapter 4438 would be left entirely in the hands of the state. In view of the expressed purpose of HRS chapter 480 to “encourage those who have been victimized by persons engaging in unfair or deceptive acts or practices to prosecute their claim,” Hse, Stand, Comm. Rep. No. 541, in 1987 House Journal, at 1355, and the intent of HRS chapter 4438 to ‘protect creditors from unscrupulous or dishonest collection agencies, and to protect debtors from abusive collection Ea agencies,” this result would not be in keeping with the statutory structure and would appear to be the type of “inconsistent,” or “absurd,” result that this court must presume the legislature would not have intended." Rather, in the context of consumer debt, the determination of whether the individual seeking suit is 2 “consumer” should rest on whether the underlying transaction which gave rise to the obligation was for a good or service that is “primarily for personal, family, or household purposes,” HRS § 480-1. This reading is supported by the definition of “debt” in HRS § 4438-1, as well as the fact that the statutory structure of HRS chapter 480 does not require that one be 2 “consuner” of the defendant's goods or services, but merely a “consumer.” Cf. Elenniken v. Lonaview Bank and Trust Co., 661 S.W.24 705, 707 (Tex. 1983) (“Privity between the plaintiff and defendant is not 4 consideration in deciding the plaintiff’s status as a consumer under the (Texas Deceptive Trade Practices Act]. A plaintiff establishes his standing as a consumer in terns of his relationship to a transaction, not by a contractual relationship with the defendant. The only requirement is that the goods or ™ plaintit{s also suggest that were a consumer required to have made a purchase in order to bring suit ageinst a collection agency, common Such as denanded payment ona debt the victin never incsrrea beca isentity theft, of demanding that a parent pay sn alleged credit card debt of 4a child away from home, would not be enforceable by individual action under ns'§ 480-13. 26 ‘OR PUBLICATION IN WEST'S HAWAET REPORTS AND PACIFIC REPORTER, services sought or acquired by the consumer form the basis of his complaint.” (Citations omitted.}). c. the underlying purchase In this case, Plaintiffs assert that they are “consumers” because after receiving medical services HMSA demanded payment in the form of an interest-free loan should they recover from a third-party. The services received had 2 “personal” purpose within the meaning of HRS § 480-1. Cf. Adams vs Law Offices of Stuckert & Yates, 926 F. Supp. 521, 526 (E.D. Pa. 1996) (characterizing plaintiff's receipt of medical treatment at a plastic surgery center as “personal medical services,” and finding that the plaintiffs’ obligation to pay for such services was a “debt” under the FOCPA, which requires that % Arthough operating with at tse have concluded that debt collection works, other states ‘Co consuner laws. font statutory fra Ivities are aubje Sea In ce Mestern Aecentonce Corp, 766 .2d 214, 216 (Idaho $Slottineerpreting idaho consumer iaw, the coure’ conclude(a) that the collection of 2 debt arising oot of a sale of goods or services is subject to the provisions of the Act, even when the collection of the debe is by a third party who hss parchasea the debt from the seller {because iJt 1s the fale that brings the debt into existence that is the crucial event”); wi broe"] Recovery Serss., Ines, 261 F. Supp. 24 1249, 1260 (D. Kan. 2003) {the Fansas Suprene Court has held that ‘en independent debt collect ion * Ss subject to the provisions of the KCPA’ if three conditions are {a)"the debt arose from 2 consumer transaction; (2) the underlying Consumer transaction involved @ ‘aupplier’ anda ‘consumer’ as defined inthe KCPA; and (3) [t]he conduct complained of, either deceptive or unconscionable, occurred during the collection of, or an attempt to collect, a Gost sich arose from the consumer transaction and was owed by the consumer’ to the original supplier.’"); Liaging x. May Cou, 44 Ohio Misc. 81, 83 (Ohio. Gon, £2. 1915) ("lt 1g this court's opinion that the intent of A.C. Chapter $31, particolarly relating to the various sections referred to, were > prohibit certain types of consuner practices to apply from the initial contact, Between the supplier and the consuser until the relationship terminates. In other woFds, that relationship continues from the initial inception between SSnsuner and supplier until, se inthis case, the debt is fully paid.") a REPORTS AND PACIFIC REPORTER * the underlying transaction be “primarily for personal, family, or household purposes”). ‘Therefore, based on the obligations arising from the “loan agreements,” which HMSA required Plaintiffs to sign when they received their medical treatment, Plaintiffs appear to be “consumers.” However, at oral argument, Rawlings asserted that the “Loan agreement” could not be the basis of one’s “consumer” status, arguing that the “loan agreement” was an inartfully- titled docunent that did not create any new rights. Rather, Rawlings contended that HMSA had pre-existing subrogation rights, arising as a matter of ley, to some portion of the amounts that Plaintiffs recovered from third-party tortfeasore, such that the Joan agreenent was nothing more than a written formalization giving Plaintiffs notice of these rights. Although the precise This court's basic principles regarding subrogation were recently ned, Mausts es Oba, This court has defined subrogation as “the substitution of anothe: person in the place of = creditor, so that the person in whose favor it Is exercised succeads to the rights of the creditor in relation tothe debt.” Eaters vu, Weatheruax, 69 Haw. 21, 27, 131 P.24 1s), 1e1 (1367) (internal quotation marks omitted) (quoting fapena v. Kaleleonalani, 6 Haw. 573, $83 (1865)).. “When subrogation occurs, the substiture 1@ put in all respects in the place of the party to whose rights he is ‘Subrogated. In effect, he ‘seeps into the shoes’ of the party.” Beters, 69 law. at 27, 731 Pa2e st 161 (citations, internal qlotetion Rarks, "snd brackets omitted); gee alec Beneficial Hawaii, inc, v. Kida, 36 Hamas's 269, s13-14, 30 P.3d 695, 91920 (OL). Subrogation Tis broad enough to include every instance in which one party pays a debt for which another is prisarily answerable, and whieh, in equity end. good conscience, should have been discharged by the latter.” Peters, €9 fam at 27, 731 P.zd at 161 (internal quotation marke, eltaticn and brackets omitted) « 124 Hawai's 438, 483, 166 F.3d 696, 741 (2007) 2 ‘+8 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER. status of the “loan agreement” was neither put at issue below nor discussed extensively in the appellate briefings, if correct, Rawlings’s assertion would mean that there was no underlying transaction and that Plaintiffs were therefore not “consumers” of medical services Rawlings’s theory is not convincing. The “Loan agreement” provided by HMSA and signed by Plaintiffs is also known as a “loan receipt.” “A loan receipt is an agreement which states that the insurance proceeds paid by the insurer to the insured constitute an interest-free loan which must be repaid to the extent that money is recovered in an action brought by the Angurer in the name of the insured.” 4 Rowland H. Long, The Law of Liability Insurance § 23.03(2) (b) {ii} (2007). In other contexts, courts have considered whether such loan receipts are “true loans.‘ ‘The weight of authority holds that loan receipts are valid, although as in any agreement, the intention of the parties should be considered. See Annotation, ity and, of loan receipt or agreement betwe oan receipts are used primarily to avoid what is known as the “real perty in interest” doctrine, under which insurers who have paid to the insured fhe entire amount of loss must sue third party tortfeasors in their own name rother than that of the insured, which is thought to prejudice insurance coapanies in jury trials. See 4 Long, supra, $ 23.03{2)(b]; Hawai'i Rules of Civil Procedure Rule 17(a) ("Every action ehall be prosect the Feal party in interest."). A loan receipt obviates this result by keeping the insured af a real party in interest but Pequiring repayment of any funce, recovered. 4 Long, gupta, § 23.03(2) (b] [ii]. coures have thus considered thether loan recoigts are valid’ in order to determine whether an insurer paying pursuant to such a loan receipt may sue in the insured’ name. id. 2 *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** and insurer for a loan repayable to extent of insured's recovery from another, 13 A.L.R.34 42 (1967).# Without specific arguments to the contrary, the plainest conclusion is that the “loan agreement” in this case constituted a true loan that could have been enforced by HNSA. As such, the loan agreement has created obligations, and could be considered a form of payment for the health care Plaintiffs received. Accordingly, Plaintiffs were “consumers” who, by virtue of the agreement, engaged in a consumer transaction. 2, Plaintiffs Were not “Injured.” Rawlings argues that the circuit court erred in concluding that Plaintiffs were injured within the meaning of HRS § 480-13(b), primarily contending that because Plaintiffs paid amounts that were less than their original obligations to repay WMSA, they arguably received some benefit and could not therefore have suffered any injury. In support of this argument, Rawlings asserts that: (1) there vas no injury that was “fairly traceable” to Rawlings’s alleged violations of HRS § 4438-3; (2) this court’s decisions, as well as cases in the federal district court following then, require that, for an injury to exist, one must incur “private damages”; (3) this court’s decisions & mere is a divergence of opinion, however, as to whether @ loan receipt transaction constitutes a valid losn where the insurer's Liability is absolute, In most of the cases where such a situation existed, the transaction was deened to be a valid loan sss -” 13 B-lsf 3d gt 43. 20 #** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER + demonstrate that payment of a valid obligation does not constitute injury; and (4) this conclusion is “consistent with the regulatory system the Hawaii State Legislature authorized in order to combat abusive collection practices.” In response, Plaintiffs argue that the trial court correctly held they were injured because the fact of payment of money to Rawlings in response to Rawlings’s denand constituted an injury. In support of this contention, Plaintiffs argue that: (2) the plain text of HRS chapter 4438 does not recognize any distinction between valid and invalid obligations that would mean injury could only follow from payment of an invalid obligations (2) the purpose of the law to allow individual enforcement would be defeated if an individual could only sue on the basis of invalid obligations; (3) Rawlings’s denand of payment without registering was illegal, so that Plaintiffs were injured when they paid money in response, a conclusion Plaintiffs contend is in line with our caselaw as well as that of other jurisdictions: and (4) Rawlings’s policy argument in support of limited enforcement of HRS chapter 4438 by the Attorney General is not in keeping with the purposes of the law and would result in needlessly burdening the state. As explained below, Plaintiffs’ payment of the HMSA Lien to Rawlings does not constitute an injury for which they may bring suit under HRS § 480-13(b). 2 +" FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER a rv in the contex chapt 5 As our caselaw commands, in interpreting the standing requirenents of HRS § 480-13(b), we must start with the language of the statute, which allows “(]ny consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2" to sue for damages or injunctive relief. The statute does not define the term “injury.” Accord Zanakis=Pico v. Cutter Dodge, Inc., 98 Hawai'i 309, 316, 47 2.34 1222, 1229 (2002) (“HRS chapter 490 defines neither ‘injury’ nor ‘damages,’ . . . .”), Rawlings and Plaintiffs put forth two different interpretations of what it means for a consumer to be injured in the context of claims based on a violation of the registration requirement of HRS § 4438-3. Plaintiffs point to the statute, which states that “{nJo collection agency shall collect or attempt to collect any money . . . from any person who resides . . . in this State without first registering,” HRS § 4438-3, in support of their argument that the act of paying money to, or being collected upon by, an unregistered collection agency caused injury to Plaintiffs, Rawlings posits a narrover view, that one is not injured when one pays a valid obligation to a collection agency that has conmitted the unfair trade practice of collecting money without registering. 2 214 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ***_ As none of our cases have dealt with injury in this precise context, this court must draw on the concept of injury in analogous cases. As a general matter, “injury” means a “judicially-cognizable injury, that is, a harm to some legally- protected interest.” Sierra Club v, Dep't of Transp., 115 Hawai'i 299, 321, 167 P.3d 292, 314 (2007). Our caselaw on HRS § 480-13 elucidates the nature of the injuries cognizable under that statute. As we stated in Ai v, Frank Huff Agency, Ltd., “{w]hile proof of a violation of chapter 480 is an essential element of an action under Sec. 480-13, the mere existence of a violation is not sufficient ipso facto to support the action; forbidden acts cannot be relevant unless they cause private damage.” 61 Haw. 607, 618, 607 P.2d 1304, 1312 (1980) (emphasis added), overruled inpart on other grounds by Robert's Haw, Sch, Bus. Inc. ve Jaupahoehoe Transp, Co., $1 Hawai'i 224, 982 P.2d 853 (1999); accord Sambor v, Omnia Credit Serva., Inc., 183 F. Supp. 2d. 1234, 1244 (D. Haw. 2002). Although these cases suggest that Plaintiffs’ allegation of injury is insufficient, because of the varying > im Gieri vs Leticia Query Realty, Inc., this court also required that the injerpalieges under iia § M00-14 be fairly traceable to the Sefensant’s actions.” 80 Hawai'i 54, 66, 905 P.2d 23, 41. (2 However, Pesause Plaintiffs were not sinjured” in the first place, causation is not at issue herein, 3 “*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER factual contexts of these cases a further examination of A and Sambor is in order. Pomete Rawlings contends that based on Ai, there is no cognizable injury under HRS § 480-13 when plaintiffs are not required to make “payments beyond the amount of their existing obligation.” (Citing Ai, 61 Haw. at 620, 607 P.2d at 1312). In Ai, the plaintiffs brought suit against a collection agency for preparing a promissory note, which the plaintiffs executed and delivered to the defendant agency, that contained an “attorney's fees” provision that violated the debt collection laws." The note provided that in the case of default, if the note were placed in the hands of an attorney for collection, the plaintiffs would have to pay an attorney’s fee rate of “33 1/38 of the amount due thereon.” Ai, 61 Haw. at 610, 607 P.2d at 1307. After making nineteen payments, the plaintiffs filed a complaint for declaratory judgment, alleging, inter alia, that the defendant “had represented in the August promissory note that the existing obligation of the plaintiffs might be increased by Mint the tine the plaintiffs brought oult in AL, HRS § 480-13 lacked any provision for consumer lawsuits. Rather, the plainciffs’ suit was based fon HRS § 480-13(a), which provided at the time, as it does now, thet “lalny Person who is injured in his business or property by reason of anything forbidden or declared unlawful by this chapter ... . may sve for damages ww Although a different provision, both provisions require an "injury, and applying the concept of in pars paterisy the meaning of anjory as interpreted by the court in Ai Ray De of assistance when Interpreting HRS s a80"13 (8) 3 the addition of attorney's fees when in fact such fees could not legally be added to the existing obligation,” in violation of the former law on “collection agencies," and HAS chapter 480. Id. The circuit court granted the plaintiffs’ motion for summary judgment on this count, declared the promissory note null, void, and unenforceable under HRS § 480-12,% and avarded damages to the plaintiffs in the amount of $1,000 plus costs as provided by HRS § 480-13 (a) (1). Id. The holder of the promissory note appealed. 8 the complaint was based on two laws under HRS chapter 443, the entirety of which was repealed in 1973, which was after the events of the Stwouit in Ale 1979 Haw. Seas. L, Act 76, § 1. Ae quoted by the court, HRS § debe44ie) provides in relevant part that: Mo collection agency shall use . . . any conduet which is described as Eoliows (8) Any representation that an existing obligation of the debtor or alleged debtor nay be incressed by the addition of attorney's fees, investigation fees, service fees, ana any other fees or charges uhen_in tact such fees or charaes may tot eaaily bs added 61 naw, BEET Rs 2, 607 F.2d at 1907 12° (quoting HRS § 443-4481) snasis added). The plaintiffs’ HRS § 443-44(8) claim of misrepresentation Un turn based on HRS § 443-23, which barred certain fee provisions such a5 one drafted by the defendant in Bi. HRS § 443-23, as quoted in Al, stated A lcensee shall not collect, or attenst te collect, any collection fee or attomey's fee of connissien fron any cebtor; provided however, attorney's fee oF commission gay be collected after <iling ofa LE against any debtor and such fee or comiseion shall Au, 61'laws ae G10 2-3, 607 Pr2d-at 1307 n-3 {quoting HAS § ¢i-23) (emphasis Baded) His § 443-23 is siniisr to today's HRS § 4635-9, entitled SGofiection, attorney's, or commission fees; exception.” HRS § 4435-9 (Supp. 2008) BRS § 480-12, ontitled "Contracts void," provided then, as it does row, that [ajay contrast of agreenent in violation of this chapter is void Gna is not enforceable at law cr in equity.” HRS '§ 480-12 (1995) 35 {#42 FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER, On appeal, the court reviewed both whether the plaintiffs had standing to bring the claim and whether they should recover on the merits. With respect to standing, the defendants had claimed that private persons did not have standing under chapter 480 to sue, and that even if they did, “a private plaintiff must allege and prove thet he was injured in his business or property before damages will be assessed.” Id. at 612, 607 P.2d at 1309. Taking a broad view of “injury in... property,” the court held that “it is sufficient that plaintiffs allege that injury occurred to personal property through a payment of money wrongfully induced” . . . and “accordingly [found] plaintiffs’ allegation of injury in their property sufficient for standing purposes under § 480-13.” Id, at 613, 607 P.2d at 1310, Proceeding to the merits, the court concluded that the representation in the promissory note indeed violated HRS § 443 44(8). However, the court stated: i essential proof of a violation of chapter 480 4 fnent of an action under $ 480-13, th Fg violation is not sufficient ipso f ction: forbidden acts cannot be relevent unless Elaintitts eccordinaly allece Id. at 618, 607 P.2d at 1312 (citation omitted) (emphasis added) In considering this allegation of injury, the court then turned to the enforceability of the promissory note under the voidness 2 {++ FOR PUBLICATION IN WEST'S. \WAI'T REPORTS AND PACIFIC REPORTER, provision of HRS § 480-12, holding that while the attorney's fee clause was unenforceable, it could be severed and the remainder of the note enforced. Id. at 620, 607 P.2d at 1312. With respect to this remainder, the court stated: In view of the continuing cbligaticn of the plaintiffs to ‘take payments under the note severed of its offending Clause, and in view of the fact plaintiffs have actually 2 _pavaens i thelr extatin Ep award of $1,000. Id. at 620-21, 607 P.2d at 1912 (emphasis added).”” The court thus affirmed the grant of declaratory judgment regarding the offending clause, but reversed and remanded for further proceedings based on its finding of no damages. Id, at 621, 607 P.ad at 1312. Therefore, Ai tells us two things about the injury requirement under HRS § 480-13. First, a plaintiff sufficiently alleges injury for purposes of standing by alleging that the plaintiff was made to pay money that was “wrongfully induced,” such as because the pronissory note requiring payment included illegal terms. Id. at 614, 607 P.2d at 1310. Second, an individual suffers a cognizable injury allowing the recovery of Tt 1s apparent that the court viewed the “injury” element as gequiring s different showing for purposes of standing than for the question on the merits regarding entitlenent to relief. Although the court held that the plaintifes in Al sufficiently “allege[d] that injury occurred to persons) property through a payment of money wrongfully induced, ig, at 613, 607 P-24 St 1810, it found no cognizable legal injury because they would not’ be Poquired to pay any parce of the agreenent that were vold. x {29+ FOR PUBLICATION IN WEST'S HAWAT REPORTS AND PACIFIC REPORT! damages under HRS § 480-13 when the individual is made to make payments pursuant to a void or illegal provision of some agreement. Neither theory of injury applies to Plaintiffs in this case. Unlike Ai, where the lower court had ruled that the promissory note was void, Plaintiffs do not assert that any agreement between it and Rawlings violated the law. Rather, they focus on the mere fact that Rawlings attempted to collect, and Plaintiffs accordingly paid, some portion of the Plaintiffs’ debts to HMSA. Because nothing in the underlying obligation was void, nor is it alleged that Rawlings’s methods of collection were wrongful, Plaintiffs’ payment of the sums did not cause them any injury. ‘The essential difference between this case and Ai lies in the nature of the unfair trade practice at issue. In Ai, the collection agency had made, in the promissory note it prepared for the plaintiffs in that case to sign, a representation regarding attorney's fees that was not legally allowable under another provision -- HRS § 443-23, see supra note 25 -- governing the collection of attorney's fees by collection agencies. The % Echoing the “wrongfully induced” language of Ai, Plaintiffs assert that “Defendant indices Plaintiffs to pay it money by wrongfully demanding payment without registering in violation of section 4435-3;" However, (erengful inducement, while not 2 term of legal precision, implies sone \erongful method or act of deceit in extracting payment, none of which occurred here: 2 + FOR PUBLICATION IN WEST'S HAWALT REPORTS AND PACIFIC REPORTER. representation therefore violated HRS § 443-44(8), see supra note 25, and the promissory agreement was partially voided under HRS § 480-12. The underlying obligation was thus tainted by an illegal provision which would have extracted an illegal profit for the note holder. Once this provision was removed, the plaintiffs in Ai were required to pay on the remaining obligations of the note. In contrast to the prohibition in Ai under the former “collection agencies” statute, the provision at issue here does not bear on the validity of the underlying obligation and Anvolved no illegal representations by Rawlings such that payment on the obligation would have caused Plaintiffs to incur private damage. Rather, Plaintiffs had a valid loan agreement with HMSA, which was settled through Rawlings. Although Rawlings’ s activities in collecting money were in violation of HRS chapter 4438, the collection cannot be said to have “injured” Plaintiffs under Ai. Cf. Zanakis-Pico, 98 Hawai'i at 318, 47 P.3d at 1231 ("Deception [is] the evil that consumer fraud statutes seek to rectify... 1"). 44, Sambor Although factually different from the instant case, bor confirms this view. In Sambor, the plaintiff asserted various violations of the FDCPA, and also argued that the defendant collection agency, Omnia, violated HRS chapter 4438 by failing to register as a collection agency. 183 F. Supp. 2d at 8 29+ FOR PUBLICA’ IN TN WEST'S HAWAT' PORTS AND PACIFIC REPORTER 2235. Sambor had an account with Capital one Services, which was referred to Omnia for collection. Omnia called Sambor regarding her “delinquent account” and sent a follow-up letter indicating a balance due. Id, at 1236. After Omnia sent a return letter disputing the debt, Omnia stopped all further collection activity on her account. Id. The court found that Omnia’s letter violated the FOCPA and awarded statutory damages. The court also noted that Sanbor had not shown that she suffered any actual damages, discounting the expenses she incurred in determining whether Onnia’s activity was illegal as well as the postage costs incurred in sending omnia a letter. Jd, at 1241. Finding that Omnia had violated the registration requirenent, the District Court stated that “[t]o recover under section 480-13, however, a plaintiff must demonstrate damages caused by the violation.” Id. at 1244 (citing Ai) (emphasis added). Because Sanbor had not established any actual damages as a result of Omnia’s violation, the court denied her HRS § 480-13 claim. Id, at 1245. Plaintiffs point out that Sambor is distinguishable from the present case because Sanbor did not pay any money to the collection agent. While this is true, Plaintiffs nevertheless fail to show any damag as a result of their payment to Rawlings based on their obligations to HMSA. Just as the “attempt to collect” money in Sambor did not, without more, cause any damage 40 21* FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER ** to Sanbor, likewise the actual collection, by Rawlings, of amounts Plaintiffs owed to HMSA did not cause any damage to * Therefore, Plaintiffs have not demonstrated that Plaintiffs. they were injured as result of Rawlings’s violation of HRS $ 4438-3. See also Higinton v. Pacific Credit Corp. 2 Haw. App. 435, 444, 445, 634 P.2d 111, 118, 119 (2981) (stating that injury exists, under prior version of HRS § 480-13, if “expenses were incurred because of the statutory violation and not because of a valid debt” and framing the issue in that case as whether the plaintiff “was wrongfully induced by the statutory violation(s) to pay money on a debt that was not owed or to incur expenses that would not otherwise have been incurred”); cf. Fuller vs Pac. % plaintiffs have also relied on Keli vy. Universal Fidelity Corp., No. civ, 96-00366ACK, 1997 WL 33620142 (0, Naw. Feb, 25, 1997), an onroperted Secision of the United States District Court for the district of Hawai'i that sd Sambar. “The plaintiff in Keli had brought suit under the FOCPA and fserted that the defendant had violated ins § y failing to be ‘Id at +1. The court awarded statutory damages on this latter Count in the amount Of $1,000 to the plaintiff. However, the court did not Consider whether the plaintiff was injured or whether the puaintiff had Suffered actual danages. Io fact, the court in Sambar precisely noted this fact, snd concludea thet “[i]f statutory damages were awarded in Keli in the Absence of actual danages, this court declines to follow Keli on this point.” Sanbor, 183°F. Supp. 24 at 1245 1.12. % tn favor of thelr theory of injury, Plaintiffs also cite to several unpublished federal district court cases interpreting Connecticut’ s Untsir, Practices Act, as well as federal district court cases interpreting the federal Fair Debt Collection Practices Act. However, Plaintiffs fail to provide any basis for isporting foreign lau into the interpretation of Hawad"t Statutes, by, for example, showing that the lows are similar. Moreover, Plaintiffs do not demonstrate that these cases support their claim that ‘money paid to an unregistered collection agent itself constituves injury. Finally, Ehe vast majority of state courts have held “that the claimant mst establish thet it suffered damages, harm, or loss a5 2 result of the deceptive, unfair, or iulegal act or practice under the consumer protection act before the Court." Gee Annotation, ate Act Exotectson Sct“ Preconditsons so Aatien, iI? Arb.# Stn 188 To00d) a = ** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER Mec. Collections, Inc., 78 Hawai'i 213, 221, 691 P.2d 300, 308 (app. 1995) (Acoba, J., dissenting in part) ("Because there can be no injury to Plaintiffs by the collection agency's failure to remit all attorney’s fees collected on the judgment to its own attorney, the requirement that there be such injury under HRS § 480-13(b) is not satisfied.”). b. purposive and policy arguments Notwithstanding our conclusion that Plaintiffs have failed to demonstrate an injury based on our caselaw, the purposive and policy arguments advanced by Plaintiffs do not point to a different conclusion. In addition to the Language of the statute, Plaintiffs assert that failing to find injury in this case would controvert the purpose of HRS chapter 4438. Specifically, Plaintiffs claim that if Rawlings’s view that one is not injured for paying a valid debt were adopted, HRS chapter 4438 would be rendered “virtually unenforceable by the victims of Allegal collection activities.” Plaintiffs also claim that Limiting enforcement of chapter 4438 to the Attorney General would needlessly burden the state. First, requiring some injury beyond payment of a valid underlying obligation that was not wrongfully induced does not bar consumer enforcement of all of chapter 4438. Several provisions of that chapter concern methods of collection that are in themselves injurious. For example, HRS § 4438-9, an analogue 2 ** FOR PUBLICATION IN WEST'S HAWAT'L REPORTS AND PACIFIC REPORTER. of the attorney's fee statute at issue in Ai, see supra note 25, bars the collection of excessive fees by collection agencies. HRS § 4438-15 (1993) prohibits collection by means of “any threat, coercion, or attempt to coerce,” and expressly bars five iterations of such conduct. HRS § 4435-18 prohibits the “use (of] any fraudulent, deceptive, or misleading representation or means to collect, or attempt to collect, claims or to obtain information concerning a debtor or alleged debtor” and includes nine types of representations that are expressly prohibited. HRS § 4438-18 (Supp. 2006). The title of remaining sections of chapter 4438 express similar prohibitions on certain means of collecting: HRS § 4438-16 (1993), “Harassment and abuse”; HRS § 4438-17 (1993), “Unreasonable publication”; and HRS § 4438-19 (1993), “Unfair or unconscionable means.” Second, denying individual enforcement of valid debts collected by an unregistered collection agency, where no % sinilar observations were made by Justice Acobs, who wrote 2 dissenting opinion in Dulles. Then-ICA Judge Acoba argued that the structure Sf chapter 4438 supported & Conclusion that sone provisions were more amenable fo individeal enforcement than others! Chapter 4438 (Supp.1952) is organized as follows: (1) definitions ( HRS $'4838-1), (2) declaration of the powers and duties of the director of Commerce and consumer affaire (HRS S 4436-2), (3) provisions selating to Fequirements for operating a collection agency (HRS §§ 4435-3 to =6), {4} provisions relating t9 sgency clients (creditors) and HRS § 4436-9 (iRS'§5 4430-8 Co 11), (5) provisions relating to criminal prosecution dnd other remedies (HRG $§ 4438-12 to -18),. (6) provisions setting forth prohibited acts against debtors (HRS $5 4435-15 to -15), and (7) the Brovision thst any violation of the chapter is an unfair method of Competition and an unfair or deceptive act (HRS § 4435-20). 78 Hawai'i at 222 n.9, 891 P.2d at 309 2.9 (Rcobs, J., dissenting in part) e WALREPORTS AND PACIFIC REPORTER + FOR PUBLICATION IN WEST" inJurious method of collection was alleged or shown, does not abrogate the purpose of chapter 4438. Justice Acoba, then an ICA judge, discussed the legislative history of this chapter in euller: In 1987, the legislature enacted chapter 4438 to provide “general regulation of collection practices(,)" to sprotect cfeditors fom unscrupulous or dishonest collection agencies, and to protest debtors from abusive collection 3 {.]" ‘ilge. Stand. Coma. Rep, No. S41, in 196? House £1355." provisions like 4438-3 involve the genersi“ regulation of collection agencies and. are Shforeeable by the director 78 Hawai'i at 221-22, 891 P.2d at 308-09 (Acoba, J., dissenting in part). This court has also discussed the purpose of chapter 480, which allows enforcement of chapter 4438: HRS chapter 480"s parazount purpose was to Tencourage those Who have been victimized by persons engaging in unfair or deceptive acts of practices to prosecute their clais," thereby affording "an additional deterrent to those who would practice unfair and deceptive business acts.” "Sen. Stand.” Comm. Rep, No. 600, in 1968 Senate Journal, at titi; Stand. Comm: Rep. No. 661, in 1969 House Journal, at be2-0e3. ‘The foregoing statutory construction ie consistent with HRS chapter 60's function as a nechanigm for absting Practices that potentially iniure consusers in general. Zanakis-Pico, 98 Hawai'i at 317, 47 P.3d at 1230 (emphases added). Although a consumer may sue an unregistered agency who also causes the consumer sone injury -- either by charging a prohibited fee, a,c, HRS § 4438-9, or by attempting to collect in a way that causes non-economic injury -- without an “injury,” enforcement of HRS § 4438-3 is in the hands of the Attorney General and the Director of the Office of Consumer Protection. HRS § 480-2(d) (1993). As stated by then-Judge Acoba in Fuller, “ 2+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** HRS § 4438-3, Like the provision analyzed in Buller, “is one of those sections in chapter 4438 concerned with the general regulation of collection agencies, and not . . . a section such as HRS §§ 4438-15 to -19, which has to do with prohibited acts involving debtors,” and which therefore allows for individual enforcement, 78 Hawai'i at 222, 891 P.2d at 309 (Acoba, J., dissenting in part). As such, Ravlings’s conduct in violation of HRS § 4438-3, while injurious to the state's interest in regulation of collection agencies, did not directly harm Plaintiffs. Therefore, Plaintiffs have not denonstrated any “injury” and may not bring suit for their claim under HRS § 480- 13 0b). Iv. coNcLUsTON Based on the foregoing, we vacate the circuit court’s interlocutory order and remand to the circuit court with instructions to enter an order granting summary judgment in favor of Rawlings. Thomas R. Grande, (Jeffrey P. Crabtree, and Norman K.K. Lau, on the brief; substituted 10/9/07); (Margery 8. Bronster, Robert Hatch, and Jeannette #. Castagnetti of Bronster, Crabtree & Hoshibata, on the brief; withdrew 10/8/07) for Plaintiffs~Appellees Albert Flores and Donald Rapoza 45 2+ FOR PUBLICATI 'ST’S HAWAI'I REPORTS AND PACIFIC REPORTER *** iesa H. Andrews (Devon i. Peterson of Rush Moore LLP with her on the briefs) for Defendant-Appellant The Rawlings Company, LLC “
6ca2bdda171faa1fb1397ccd82ca0e21fb4b0af68896051e5479c7accf7e4a32
2008-02-01T00:00:00Z
e6483f5d-1dda-4b64-9f9b-9c395785729d
Office of Disciplinary Counsel v. Kiefer
null
28957
hawaii
Hawaii Supreme Court
No. 28957 IN THE SUPREME COURT OF THE STATE OF HAWAI'I OFFICE OF DISCIPLINARY COUNSEL, Petitioner, ” 3 = WILLIAM R. KIEFER, Respondent. 3 ORIGINAL PROCEEDING 8 (ooe 07-020-8480) ORDER OF PUBLIC CENSURE Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.) upon consideration of the Office of Disciplinary Counsel's ex parte petition for issuance of reciprocal discipline notice to Respondent William R. Kiefer, pursuant to Rule 2.15(b) of the Rules of the Supreme Court of the State of Hawai's (RSCH), the menorandum, affidavit, and exhibits thereto, Respondent Kiefer's response thereto, and the record, it appears that: (2) on Novenber 30, 2006, the State Bar Court of California publicly reproved Respondent Kiefer for his ethical misconduct in two cases, and ordered Kiefer to pay disciplinary costs and attached conditions; (2) RSCH 2.15(b) requizes the same or substantially equivalent discipline, or restrictions or conditions upon the attorney's license to practice law in the state of Hawai't, unless Respondent Kiefer shall show cause under RSCH 2.15(c) as to why imposition of the same or substantially equivalent discipline should not be imposed; (3) Respondent Kiefer filed a response to our February 7, 2008 notice and order on April 11, 2008 that fails to show cause; (4) a substantially equivalent discipline is warranted in this jurisdictions and (5) 2 substantially equivalent discipline in this jurisdiction is public censure by the supreme court. Therefore, eats IT IS HEREBY ORDERED that Respondent William R. Kiefer is publicly censured in the state of Hawai'i. IP IS FURTHER ORDERED that Respondent Kiefer shall (1) comply with the conditions imposed by the State Bar Court of california, or if he has already complied with said conditions, show proof of such compliance, and (2) pay all costs of this proceeding DATE! Honolulu, Hawai'i, April 29, 2008, Evan R. Shirley, for Gre respondent Michael . Lee, (Btrieve assistant disciplinary counsel, for petitioner % S Pecan ue be Merisey aoe PN Goro. Deby br
4004c9ef9c56d8cef9e4196ccc0bd965a6fe4f613fd387073d273f149401454f
2008-04-29T00:00:00Z
cbfdd9a7-5236-4c6a-a5c9-53666254d02d
State v. Hatori
null
null
hawaii
Hawaii Supreme Court
No, 27239 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T Stare OF HANAT'T, 3 8 miaintifenppelive-tespondent, gle & Bi 2 vs. ae 8 JOSEPHINE K. HATORI, BE Detendant-Appeliant-Petitioner. Sag = 2 “ CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-CR. NO. 04-1-2353) (By: Levinson, J., for the court’) Upon consideration of the application for a writ of certiorari filed, on December 18, 2007, by the defendant- appellant-petitioner Josephine K. Hatori, the application is hereby rejected. DATED: Honolulu, Hawai'i, January 23, 2008. FOR THE COURT: AE py STEVEN H. LEVIRSQHE ay © Associate Jus ig EAL ~ Veog wi Deborah L. Kim, for the petitioner Josephine K. Hatori on the application + considered by: Moon, C.J., Levinson, Nakayama, Accba, and Duffy, 3¥. oad
b21e47951082494bfac40b4eb2f95603f1411f32284aca986b2f3f2e6e9e304d
2008-01-23T00:00:00Z
ed3fc9dc-7fcc-46c8-9647-69789fc594f8
State v. Kolia
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No, 28071 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HANAI'E, Respondent /Plaintif#-Appelien SOLA KOLA, algo tnown as sola Kolio, °F eocitloner/betendant-appelies "aie CERTIORARI TO THE THTERNEDIATE COURT OF APFEREP (Ga. ho. oft 1135) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Acoba, J., for the court") The Application for Writ of Certiorari filed on Sola Koll a3 4856 AY 62 nur auae also ganuary 2, 2008 by Petitioner/Defendant-Appell known as Sola Kolio, is hereby rejected. Honolulu, Hawai'S, January 29, 2008. DATE! FOR THE COURT: ASsociate Justice Karen T. Nakasone, Deputy Public Defender, on the application, for petitioner /defendant- appellee. Hoon, C.J. Levinscn, Nakayama, Acobe, and » considered by: putty, 93.
4dc7889f95e85457a8d125788eca7ea2b3f78dc5a370fe8a1c7b892853a1456a
2008-01-29T00:00:00Z
ad6f4333-1584-47e1-a443-da78345ee5da
State v. Fang
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No, 27876 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'L, Respondent/Plaintitt-Appellees| gy vs. Se § GAUTIER TIENNI FANG, Petitioner/Defendant-appeliait & CERTIORARI TO THE INTERMEDIATE COURT OF APPERYS (CR. NO. 01-1-2082) s 93414 FOR WRIT OF CERTIO! (By: Acoba, J., for the court") The Application for Writ of Certiorari filed on January 17, 2008 by Petitioner/Defendant-Appellant Gautier Tienni Fang is hereby rejected. DATED: Honolulu, Hawai"i, January 29, 2008. FOR THE COURT: BE LEER AER simmow . acosy, SR. |" SEAL") Associate Justice \s, 2s) oe. us Stuart N. Fujioka Le o= wey (Nishioka 6 Fujioka), on the application for petitioner/ defendant-appellant. * Considered by Moon, C.J., Levinson, Nakayama, Acobe, and Dufty, JJ.
c824d274c50c99f805d515bb5caeb61a2597d94eb7ff36caab99370c04f78b22
2008-01-29T00:00:00Z
8a9a697c-7019-4f1c-96d8-bf75be43ccc3
Office of Disciplinary Counsel v. Woo
null
null
hawaii
Hawaii Supreme Court
No. 28442 IN THE SUPREME COURT OF THE STATE OF HAWAT' vn au0d qa OFFICE OF DISCIPLINARY COUNSEL, Petitioners. CHRISTOPHER S. B. WOO, Respondent. 1:8 WV 91 ORIGINAL PROCEEDING op 07-025-8485, 07-026-8486, 07-027-8497 VI ORDER OF TRANSFER 70 ACTIVE STATUS AND_RESUMPTION OF DISCIPLINARY PROCEEDINGS (By: Moon, C.J., Levinson, Nakayama, Accba, and Duffy, JJ.) Upon consideration of the Affidavit of Charles H. Hite Regarding Novenber 26, 2007 Order, the “Report Complex Evaluation Re: Christopher 5. B. Woo,” the report submitted by Robert C. Marvit, M.0., the medical expert appointed by the court to exenine Respondent Woo, the Supplemental Declaration of Pamela O'Leary Tower in Support of the Affidavit of Charles H. Hite, the exhibits in support, and the record, it appears: (1) on March 23, 2007, we (1) transferred Respondent Woo to inactive status pursuant to RSCH 2.19(c) until a determination could be made of Respondent Woo's capacity to continue the practice of law, (ii) ordered that disciplinary investigations could continue, and (184) ordered pending disciplinary proceedings against Respondent oo be held in abeyance while Respondent Woo remained on inactive status pursuant to RSCH 2.19(c); (2) on November 26, 2007, we appointed Robert C. Marvit, M.D. to examine Respondent Woo and his medical records to determine whether Respondent Woo was incapacitated fron continuing the practice of la; and (3) on April 21, 2008, we received Dr. Marvit’s February 12, 2008 examination report that found Respondent Woo is not suffering from a substantial impairing mood disorder or cognitive dysfunction thet would preclude his transfer to active status, and that determined Respondent Woo is competent to defend hinself in disciplinary proceedings. Therefore, BT IS HEREBY ORDERED, pursuant to RSCH 2.19(c), that Respondent Woo is returned to active status, with entry of this order. 17 18 FURTHER ORDERED that the Office of Disciplinary Counsel may resune disciplinary proceedings against Respondent Woo, including proceedings identified as 00C Nos. 07-025-8485, 097-026-8486, and 07-027-8487. DATED: Honolvly, Hawai'i, May 16, 2008. Deputy chief DiSciptinary opr Counsel, for petitioner Pamela 0’Leary Tower, (Mir Peat samle octane Prensa Oren on Geek Gano €. Dlg tr
fcf9e598dd2ebf24b63caf6ce980ef359550ff3f7830da51ef6c5fd45a50dd52
2008-05-16T00:00:00Z
72cff75e-1c33-4af3-b216-eb9f6d0037f0
State v. Ignacio
null
null
hawaii
Hawaii Supreme Court
No. 28607 IN THE SUPREME COURT OF THE STATE OF HAWAET woe lt STATE OF HAWAI'I, Plaintiff-Appellee-Respondent, OY 6~ WENDELL M. IGNACTO, Defendant-Appellant~Petitioner. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 06-1-1730) R REJECTING APPL! WI cenrroRaar (By: Levinson, J., for the court') upon consideration of the application for writ of certiorari filed on August 4, 2008 by the defendant-appellant~ petitioner Wendell M. Ignacio, the application is hereby rejected, DATED: Honclulu, Hawai'l, September 9, 2008. FOR THE COURT: [FRR Seen, Sicelate TCHR SSA Jeffrey A. Hawk, Le a for the petitioner, Bog on the application 2 considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, 29. ave
4dcdb6b4848047746eb29f11c7e17b380454ef0b04e1fa743cd92c69a821f162
2008-09-09T00:00:00Z
49184dfc-64b0-43bf-864d-6cdfabc7033f
Fong v. Oh
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 27635 IN THE SUPREME COURT OF THE STATE OF HAWAT'T CONNIE Y. FONG, Respondent /Plaintiff/Counterclaim Defendant-Appellee a a SEMIN OH and MYUNG HUI OH, Petitioners/Defendants/Counterclaimants/ = Cross-Claimants-Appellants S201 Sz myn egg qaqa and a Defendant/Cross-Claim Defendant CELIA OLAES BATLE, and ANNE JU TAMURA; RENATO DAVID JON TAMURA; Defendants CLIFF ENTERPRISES, INC. VITO BATLE; MICHAEL TAMURA; and DOES 1-100, and SEMIN OH and MYUNG HUT OH, Petitioners/Third-Party Plaintiffs-Appellants KEITH M. KIUCHT, Respondent /Third-Party Defendant-Appellee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (cIV. No. 02-1-2007) ORDER (1) GRANTING IN PART NOTION 10 CORRECT JUDGMENT ON APPEAL AND (2) VACATING JUDGMENT ON APPEAL ENTERED ON DECEMBER 27, 2007 (By: Duffy, J. for the court’) upon consideration of Petitioners/Defendants/ Counterclaimants/Cross-Claimants-Appellants Semin Oh and Myung Hui Oh’s motion to correct Judgment on Appeal, filed on Acoba, and buffy, 93. } considered by: Moon, C.J.) Levinson, January records granted entered 7, 2008, the papers in support and in opposition, and the and files herein, IT IS HEREBY ORDERED that the motion to correct is in part. IT IS FURTHER ORDERED that the Judgment on Appeal fon December 27, 2007 is vacated. DATED: Honolulu, Hawai'i, January 25, 2008. FOR THE CoUuRt: Koreas, Aaya r+ Associate Justice
23e269f9a6c37ef2bf4ea93573b3c42dd56098e9af5f687515fe3d6689bf0e65
2008-01-25T00:00:00Z
99017c83-ebf7-4364-8d61-67bacfe06864
Flores v. The Rawlins Company, LLC
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY IN THE SUPREME COURT OF THE STATE OF HAWAI'T -000-=~ ALBERT FLORES and DONALD R. RAPOZA, Plaintiffs~Appellees THE RAWLINGS COMPANY, LLC, Defendant-Appeliant No. 28124 hve MOTION FOR RECONSIDERATION CO-0N0 5 wage oats (CIV. Wo. 04-1-2388) MARCH 6, 2008 =3) LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, 3. MOON, C.J. upon consideration of Plaintiffs-Appellees Albert Flores and Donald Rapoza’s motion for reconsideration filed on February 11, 2008 and the record herein, IT IS HEREBY ORDERED that the motion is granted in part and the published opinion of the court filed on February 1, 2008, is hereby amended as follows (deleted material is bracketed and new material is double underscored) : Line 3 from the bottom of page 2: Fased on the following, we vacate the circuit court’s interlocutory order and remand to the circuit court to enter an order granting partial summary judgment in favor of Rawlings. Line 11 from the top of page 45: Therefore, Plaint have not demonstrated any “injury” and may n for their claim) under HRS § 480-13(b). Iv. cONCLUSION Based on the foregoing, we vacate the circuit court's interlocutory order and remand to the circuit court with instructions to enter an order granting partial summary judgment in favor of Rawlings on all claims dependant upon a showin of The Clerk of the Court is directed to incorporate the foregoing changes in the original opinion and take all necessa: steps to notify the publishing agencies of these changes. IT IS FURTHER ORDERED that the motion is denied in all other respects. Norman K.K. Lau, Jeffrey . Crabtree, ‘and Thomas R. Grande : for plaintiffs-appellees Mare Pb Larntso— on the motion Peete Creator are e—~\ Yen, ntl
818ec1495f832ab710006e44e627e95637ff4f8f3e9bedde696a305015766ce8
2008-03-06T00:00:00Z
e1e50c42-50a0-4fef-bfbd-0c795288d3e1
State v. Akau
null
null
hawaii
Hawaii Supreme Court
LAW LIBF NO. 26989 ‘THE SUPREME COURT OF THE STATS OF HAWAI'I eee STATE OF HAWAI'I, Respondent/Plaintift-appellee, ANTHONY KALANI AKAU, Petitioner/Defendant -Appellant a CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 03-21-2285) ER ACCEPTING APPLICATION FOR WRIT OF CERTIORART (By: Moon, C.J., for the court’) Petitioner/defendant-appellant Anthony Kalani Akau’a application for writ of certiorari, filed on January 7, 2008, is hereby accepted and will be schedule for oral argument. The Parties will be notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawai'i, February 8, 2008. FOR THE COUR’ 85:8 WY g~ usa aun oats Considered by: Moon, C.J., Levinson, Nakayama, Accba, and Dutfy, a
499fca08b14b52e51452ca28e643a48d00751bcefc4816c6a3462474040811c6
2008-02-08T00:00:00Z
0fb21a6d-cba3-4cb9-9c92-b86b20f258dd
Marks v. State
null
null
hawaii
Hawaii Supreme Court
RONALD. YAMOON No. 30101 y IN THE SUPREME COURT OF THE STATE OF HAWAT'ELS «bby t Au oad DONALD B. MARKS, Petitioner, th gs iS vs. qos STATE OF HAWAI'I, Respondent. 4 2 ORIGINAL PROCEEDING 2 ORDER (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of Donald 8. Marks‘ “application for federal writ of habeas corpus under 28 U.S.C. § 2241,” which we treat as a petition for a writ of mandamus, it appears that petitioner fails to demonstrate a clear and indisputable right to relief. See Kema 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.). ‘Therefore, IT IS HEREBY ORDERED that the clerk of the appellate court shall process 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. DATE! : Honolulu, Hawai'i, october 30, 2009. Gor Receeun le Teale ne Yount Roddy de Ms & Me lin oad
91f50aac432540d733d246f274283bde69cd5e3ac76e56da0846f9498c1f3b30
2009-10-30T00:00:00Z
9c82a44e-7b03-49ac-9d0b-ece4f243dd9a
Mussack v. State, Department of Education
117 Haw. 378
null
hawaii
Hawaii Supreme Court
LAW LIBRARY NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPOR’ Wo. 27534 IN THE SUPREME COURT OF THE STATE OF HAWAI'I JOHN E. MUSSACK, Claimant-Appellant, 3 vs = 2 ° g a Gans STATE OF HAWAI'I, DEPARTMENT OF EDUCATION, ‘Employer-Appellee, Self-Insured, and Insurance Adjuster-Appellee. JOHN MULLEN AND COMPANY, APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO, AB 2004-023 (2-00-41331)) (py: Moon, C.J., Levinson, Nakayama, and Duffy, JJ. ‘and Acoba, J., concurring in the result only) Claimant-Appellant John E. Mussack ("Mussack”) appeals from the Labor and Industrial Relations Appeals Board’ s* (*LIRABY) July 28, 2005 decision and order affirming the decision of the Director of Labor and Industrial Relations (“director”) denying his claim for workers compensation against his. employer, ("DOE")? and the the State of Hawai'i, Department of Education Iwase and Board members Carol K, * posed chairman Randall ¥, Yenamoto and Vicente f- Aguino presided "1 Revised Statutes ("HRS") § 386-3 (Supp. 2000) stati son (a) 1f an employee suffers personal injury either by ind in the course of the exployment or by Sisease proxinstely coused by or resulting from the nature of the exploynent, ‘the employee's employer or the special ‘compensation fund shall’ pay conpensstion to the employes or the employee’ s dependents 28 provided in this chapter. ‘Recident arising out of and in the course of the employment includes the wilful act of a third person directed against an exployee because of the employe’ s employment, accident arising out of + NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REFORTER LIRAB's September 1, 2005 order denying Mussack’ s motion for reconsideration. On appeal, Mussack argues that the LIRAB erred inasmuch a5 it (1) departed from lawful procedure by admitting the file of the case (a) without giving him notice, in violation of the pretrial order, (b) without his agreement, and (c) without affording him the opportunity to object, (2) admitted a report by De. Daryl B. Matthews ("Dr. Matthews’ Report”) and 00E files regarding Mussack (“DOE documents”) into evidence although they were not authenticated and hearsay evidence, and (3) concluded that Mussack had not sustained an injury on September 28, 2000 even though “there was a variety of evidence that Mussack sustained an injury.” Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we hold that (2) The LIRAB did not depart from lawful procedure (b) No compensation shall be allowed for an injury incurred by an enployee by the employee's wilful intention to injure oneself cr ancther by actively engaging in any unprovoked non-vork related physical altercation ctner than in self defense, or by the exployee’# intoxication. {e) A Claim for montal stress resulting solely fron ‘iplinary action taken in good faith by the employer shall not flowed; provided that if @ collective bargeining agreement oF other employment agreement specifies a different standard than good faith for disciplinary actions, the standards set in the collective bargaining agreement or other employment agreement shall be applied in 1ieu of the good faith standard. for purposes of this subsection, the standards set in the collective bargaining agreenent or other’ enploynent agreenent shail be applied in any Proceeding before the department, the appellate beesd, and the Sppeliate courts \OT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** where it admitted Dr. Matthews’ report and DOB documents as part of the file of the case. The LIRAB’s pretrial order did not require the DOE to provide Mussack with notice where the DOE did net introduce these documents. Moreover, inasmuch as stipulation is voluntary? and not @ prerequisite to admitted evidence, the LIRAB may admit evidence that was not stipulated. Further, Mussack’s failure to object to the Director’s file does not amount to a LIRAB violation of “lawful procedure” where the record does not indicate that the LIRAB refused to hear objections to this evidences‘ (2) De. Matthews’ Report and DOE documents were admissible because they are relevant® to the issue of Mussack’s » _sgtipuration” se defined as “a voluntary agreenent between Jsing parties concerning sone relevant point; especisily, an agreenent fehating teva proceeding made by attorneys representing adverse parties to the proceeding.” Black's Lau Dictionary 1455 (eth ed. 200¢) ‘see Hawai's Rules of Evidence ("MRE") 103 (“Error may not be predicted upon ruling which sdnite or excludes evidence unless a substantial Pigne of the party ia affected, and... a timely cbjection or motion to Strike appears of record, stating the specific ground ef objection, if the Specific ground was not apparent fron the context”) + the LIRAB Se an agency within the definition of the Hawai'i Adninistrative Procedure Ret, gee Cazinero v. Kohala Susar co. 54 aw. 479, teh, 510. P.2d 85, 91 (1973), and therefore, under Haval't Administrative Rule $'1b-4)-41, “statutory and Connon lew rules relating to the admission or Fejection of evidence” do not apply to the LIRAB. fawas's Aaministrative Rule SioslorF201, “eneitied “Mearings Process,” describes the adaissicn of evidence 38 follows: The admissibility ef evidence at the hearing shell not be governed by the rules of evidence, and all relevant ccal and documentary ividence shal) evant i Bocunentary evidence may De receives 1h the form of copies, provides that, upon request, all other parties to the proceeding Shell be given an opportunity to compare the copy with the Gfigine!. if the original is not available, a copy say still be Gdnssibie, but the unavailability of the original snd the reasons 3 *** NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * injury on September 29, 2000; (3) the LIRAB did not clearly err‘ by concluding that Mussack did not sustain a psychiatric injury on September 29, 2000. We decline to disturb the LIRAB’s determination of the therefor shall be considered by the hearings officer when considering the weight of the documentary evidence... - The Girector shall notify the parties whenever possible before the hearing of the material to be co noticed and the parties shall be afforded an opportunity at the hearing to contest the facts s0 Poticed. (Emphasis added.) See also HRS § 91-10 (1993) (*[AIny oral oF docunentary evidence may be received, but every agency shall as a matter of policy provide for the exclusion of irrelevant, iamaterial, of unduly repetitious eridence."); Cazinere, 54 Haw. st 483, 510 2.26 at 33 ("{h]hen an agency is faced with evidence of doubtful adnissibility, it is preferable that it allow the adnission of such evicence rather than to exclude the same, (because). ‘If the record on review contains not only all evidence which was clearly Admissible, but algo all evidence of doubtful adniseibility, the court which is called upon to review the case can usually sake an end of it, whereas if evidence was excluded which that court regards aa having been admissible, 6 few trial oF fehearing cannot be avoided.) “The rules of evidence governing administrative hearings are much less formal than those governing judicial proceedings. This is due in part (sie) the absence of 2 jury. Thus, the general rule ia that hearsay evidence is ganiesible in agency proceedings.” Price v. Zoning bd. of Appeals, 77 nawai't 26, 176 n. &, 663 P20 €25, 637 n.8 (citing 4 J. Stein, Gy Mitchell & Mezines, Raninistrative Low § 22.01 (1996))+ Thus, Ore Matthews” Report and the DOE’ documents nay be adnissible even ae hearsay documents.” As long as Dr. Matthexs' Report and the DOs documents were relevant =~ "having any tendency to make the existence of any fact that is of consequence to the deverminaticn of the action nore probable or less probable than st would be without the evidence” == the LIRAB properly adaitted it. HRE 401. See Loui Ws Bd. of Med. Exam'rs, 78 Hawai'i 21, 31, 869 P24 705, 718 (1995) «See tosua v, Koa House Rest., 97 Hawai'i 402, 406, 38 P.3¢ 570, 574 (2001) ("A [Conclusion of Law] that presents mixed questions of fact and law 45 reviewed under the clearly erroneous standard because the conclusion is Gependent upon the facts and circumstances of the particular cese,” {internal quotation marks, citations and brackets in original onitted)); in re Mate x 94 Hawai'i $7, 219, 9 P34 408, 431. (2000) “Th finding Of fact] or a nixed determination of law and fact is clearly erroneous wher (2) the recore lacks substantial evidence to support the finding or Getermination, of (2) despite substantial evidence to support the finding oF Gevermination, the appellate court is left with the definite and firm Conviction thet a mistake has been nade.”) /* NOT_FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER weight and credibility of the evidence,’ and the substantial evidence in the record did not support Mussack’s claim (4) The LIRAB did not abuse its discretion by denying Nussack’s motion for reconsideration where Mussack “raise(d] argunents or evidence that could and should have been brought during the earlier proceeding:"* and (5) The LIRAB did not commit reversible error by Finding that Mussack was not injured on September 29, 2000, where his ongoing injuries began on September 25, 2000 because (a) he did not seek to amend the LIRAB’s March 2, 2004 pretrial order which plainly listed this issue and (b) even if the LIRAS erred, it was harmless because Mussack did not present evidence other > See taawa, 97 Hawai'i at 409-10, 38 F.3d at 577-78 ("It is well established that courts decline te consider the weight of the evidence to Socertain whether it weighs in favor of the administrative findings, or to Heview the agency's findings of fact by passing upon the credibility of Witnesses of conflicts in testimony, especially the findings of an expert agency dealing with a specislized field.” (citations and block quotation fermateing omitted) } + the presunption that @ workers’ compensation claim is for a “covered work infury” erelates solely to the ‘work-connectedness’ of ai injury.” "See Tamashize v. Contral Specialist, Inc., 97 Hawai'i 86, 31, 34 brbd"Yé, at 1200) thoiding thet the Ich extended TAS § 386-05 too far when it Biglied’ the presumption to the "able-te-secuneswork™ Sasue) An employer {bbnot be expected £0 Gtaprove the existence of an injury to the pleintitf, father, the Elsinant has the burden to establish that he or she wae. injared Enrough physicians” reports ana diagnoses.” Gfe Bottle. Sivahiza, 95\Baves's Sos JeshZ3 bead t16;/724, (2001) eo estabiiah standing, the Plaines ef omose show a distinct ang polpable injury to himself (or herseif]")." At that point, St°the Linas Concludea, there ia & presunpeion that the injury ss connected tO + see Sousarie vs Miller, 92 Hawes": 505, 513, (2000) (*{t}he purpore of @ motion for reconsideration is to allow tl io present new evidence and/or arguments that could not have been pr Goring the earlier adjedicated motion, Reconsideration is not s device to Felitigate old mattere of to raise arguments or evidence that could and should have been brought during the esrlier proceeding.” (quotation marks and cieations casted) ). sor eg ULC ION WEST'S AWAMRERORS AN PACHICREPORTER Maura M. Okamoto, lice bles Deputy Attorneys General, for enployer-appellee, State of Hawai't, Pate 6 Naweene vem Department of Education ea SONCURRENCE BY ACOBA, J. T concur in the result only. aN Mussack’s three physicians’ reports list only two dates of injury/itinens, Septenber 29, 2000 and Octeber 13, 2000.” Homever, Musi fd’ thst he was injured on Osteber 13,2000. Sea Laaua, 97 Howas's at 409-10, 38 Fad at $77~ 6
08f74bab090b59d1549db84eb1214d8d5cf44e22f3fdffb0e6fe29eeb71fb97b
2008-04-17T00:00:00Z
df568c30-09ba-4a54-b9b1-a71b9b318e42
Vandenberg v. State
null
null
hawaii
Hawaii Supreme Court
AWE No, 28083 IN THE SUPREME COURT OF THE STATE OF HAW a STATE OF HAWAI'I, Respondent-Respondent -Appellee: CERTIORART TO THE INTERMEDIATE COURT OF APPEALS (8.P.P. NO. 05-1-0023) (By: Nakayama, J, for the court’) Petitioner-Petitioner-Appellant’s application for writ of certiorari filed on August 25, 2009, is hereby rejected. DATED: Honolulu, Hawai‘i, October 9, 2009. FOR THE COURT: Eq Dawueorruenyafen Associate Justice |< S DISSENT BY ACOBA, J. I dissent and would accept certiorari. Dwight C.H. Lum for petitioner-petitioner- appellant on the writ ‘considered by: Moon, uJ.) Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Trader, in place of Recktenwald, Ju, recused. aams
43efd531813b44e11a5d67b9b24a3fc1073e9e1e7675259cd440a5ec00add433
2009-10-09T00:00:00Z
2de7e832-48eb-45dc-84ea-a2d8d5be61ed
Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii
117 Haw. 174
null
hawaii
Hawaii Supreme Court
*** FOR PUBLICATION *** IN THE SUPREME COURT OF THE STATE OF HAWAT'T --+ 000 OFFICE OF HAWAIIAN AFFAIRS, ROWENA AKANA, HAUNANT APOLIONA, DANTE CARPENTER, DONALD CATALUNA, LINDA DELA CRUZ, COLETTE MACHADO, ‘BOYD P. MOSSMAN, OSWALD STENDER, and JOHN WATHE'E, IV, in their official capacities as menbers of the Board of Trustees of the Office of Hawaiian Affairs, PIA THOMAS ALULI, JONATHAN KAMAKAWTWO'OLE OSORIO, CHARLES KNATAI, and KEOKI'MAKA KAMAKA KI'ILT, Plaintiffs-Appellants, HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF AWAT'T (HCDCH), ROBERT J. HALL, in his capacity as Acting Executive Director of HCDCH, CHARLES STED, Chair, STEPHANIE AVEIRO, FRANCIS L. JUNG, CHARLES KING, LILLIAN B KOLLER, BETTY LOU LARSON, THEODORE E. LIU, TRAVIS THOMPSON, TAIAOPO, ‘TUINALEIALTIPANO, ‘Members of the Board of Directors of HCDCH,' State of Hawai'i, ‘and LINDA LINGLE, in her capacity as Governor, State cf Hawai'i, Defendants-Appellees. No. 25570 APPEAL PROM THE FIRST CIRCUIT COURT (crv. No. 94-4207), GANUARY 31, 2008 MOON, C.J., LEVINSON, NAKAYAMA, AND ACOBA, 9: AND CIRCUIT JUDGE CHAN, IN PLACE OF DUFFY, J., OPINION OF THE COURT BY MOON, C.J. ppellante -- (1) the Office of Two sets of plaintiff Hawaiian Affairs (OHA) and its Board of Trustees (hereinafter, collectively, the OHA plaintiffs] and (2) Pia Thomas Aluli, Jonathan Kamakawiwo'ole Osorio, Charles Ka'ai‘ai, and Keoki Maka Kamaka Ki'ili (hereinafter, collectively, the individual 9974 *** FOR PUBLICATION *** plaintiffs and, together with the OHA plaintiffs, collectively, the plaintiffs] appeal from the Circuit Court of the First Circuit's January 31, 2003 final judgment,’ entered pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule $4(b) (2007).* Following a jury-waived trial, the trial court found in favor of defendants-appellees State of Hawaii (State), the Housing and Community Development Corporation of Hawai'i, and the executive director and menbers of the board of directors of the HCDCH,’ as well as Linda Lingle, in her capacity as Governor of the state Thereinafter, collectively, the defendants] and against the plaintiffs. Briefly stated, the instant action arises from the defendants’ efforts in the mid-1990s to transfer certain parcels of ceded lands to private entrepreneurs for the purpose of residential development. On August 11, 1995, the plaintiffs filed suit, seeking an injunction against the defendants from selling or otherwise transferring to third parties two specific \ the Honorable Sabrina 8. MeKenna pré iaing. 2 Rc Rule 4(b) provies in rele sat part thats nen wore than one claim for relief is presented in an fetion, whether as a claim, counterclaim, cross-claim, or thire-party claim, or when multiple parties are involves, the court may direct the entry of final judgnent as to one or more but fewer than all of the clains or parties only, Spon an express determination that there le ho Just reason for delay and upon an express direction for the entry of judgrent > donald K.w. tau is the executive dixector of HCDCH, and the board of Girectore includes chairperson, Wesley R. Segawa, and members Hadine K. Nakamora, Kurt H. Mitchell, Dos Fujimeto, Allan Gos Banos, Jr., Susan Chandler, Craig Hirai, Ronald 8. Lim, and Bradiey J. Mossman. *** FOR PUBLICATION *** parcels of ceded lands located on the islands of Maui and Hawai'i,® as well as any ceded lande from the public lands trust Alternatively, the plaintiffs sought a declaration that the State was not authorized to alienate ceded lands from the public lands trust or, if the trial court ruled the State was so authorized, a declaration that (2) such alienation would not limit the claims of native Hawaiians to the ceded lands on Decenber 5, 2002, the trial court ruled in favor of the defendants, concluding that the plaintiffs’ claims were barred by the doctrines o! (2) sovereign immunity; (2) waiver and estoppel; and (3) justiciability -- specifically, political question, ripeness, and the mandate against advisory opinions. Nevertheless, the trial court also concluded that the State had the express authority to alienate ceded lands from the public lande trust. An HRCP Rule 54(b) judgment was, the: fer, entered on January 31, 2003, and the plaintiffs appealed. on appeal, both sets of plaintiffs challenge the aforenentioned determinations made by the trial court. Additionally, the OHA plaintiffs jert that the trial court erred in making several evidentiary rulings, ‘the plaintiffs filed suit before the parcel on the island of Hawai'i (the aig Teland) waa transferred. It appears that, at sone point, che Big [sland parcel {hereinafter, also referred to as the La'sopua parcel] transferred to the Department of Hevailan Nowelands (DHKL}, which transfer ie hot specifically challenged by the plaintiffs. Accordingly, other than a few Feferescer to the ta'i'opua parcel in this opinion, the disposition of the Big Eeland parcel ie not specifically addre *** FOR PUBLICATION *** For the reasons discussed infra, we vacate the January 31, 2003 judgment and remand this case to the circuit court with ingtructions to issue an order granting the plaintiffs’ request for an injunction against the defendants from selling or otherwise transferring to third parties (1) the parcel of ceded land on Maui and (2) any ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands has been resolved. 1. BACKGROUND A. Historical Backsround ‘The issues presented in this case have their genesis in the historical events that led to the overthrow of the Kingdom of Hawai'i, the surrender of 1.8 million acres of crown, government, and public lande to the United states, the admission of Hawai'i ag a state of the Union, and the creation of OHA and the public lands trust. See Office of Hawaiian Affaira v. state, 110 Hawai'l 338, 340-42, 133 P.34 767, 769-71 (2006) (hereinafter, QUA 12]; Office of Hawaiian Affairs v, State, 96 Hawai'i 388, 389-92, 31 P.3d 901, 902-05 (2001) (hereinafter, OHA tl; Pele Defense Fund v. Paty, 73 Haw. $78, 585-87, 637 P.2d 1247, 1254-55 (1992); and Tre, of the office of Hawaiian Affaire v. Yamasaki, 69 Haw. 184, 159-65, 737 P.2d 446, 449-53 (1967), cert, denied, 404 U.S. 898 (1987); see algo Rice v. Cayetano, 528 U.S. 495, 501 (2000). *** FOR PUBLICATION *** the Uniced states Ina public land trust for tive Durboses(-] See Acwission Act of Narch 18, 1959, Pub No. 86-3, § 5, 73 Stat. 4, reprinted in, [avait Revi Statutes’ (Hes), vol. 1 at'§'5 of the Adwiseions Act) QUAI, 96 Hawai'i at 390, 31 P.34 at 903 (emphasis added). The aforementioned five purposes are specifically delineated in section 5(f) of the Admission Act, which provides in relevant part: ‘The lands granted to the State of Havaii by subsection (b) ‘ction and public lands retained by the United der subsections (c) and (a) and later conveyed to the State under subsection (e), together with the proceeds fron the sale or other disposition ef incone therefrom, shall be beld by sai trust St-lands for niblicuse. such tands, proceeds, and income Shall be managed and disposed of for one or more of the foregoing purposes in such manner ae the constitution and laws of sald State may provide, and their use for any other object shall constitute a breach of trust for which uit may be Brought by the United states (Bmphasis added.) The management and administration of the ceded lands subject to the section 5(f) trust, i.e., the public lands < the Havaiian Homes Comission Act vas enacted by the United state Congress (Congress) to set aside over 200,000 acres of ceded lands for lusive honesteading by native Hawaiiang. Kez. Rep. $0. 629, seth Cong., 2 ia. 4 (1920). As a condition of statehood, the Unived state: State fo adopt the act as a provision of the state constitution, Const. art. XI, §.2 (1959) (renumbered art. XII, § 2 (1978)); ase also Anua i Dep't of Hatalian Hone Lande, 64 Haw. 327, 336-38, 640 P.24 1361, 1167-68 (ide2) (detailing the purpose of the Hawaiian Homes Commision Act and the creation of the Commission) - Although the Hawailan Hones Comission Act defines the term “native Hawaiian” as “any descendant of not leas than one-half part of the blood of the races inhabiting the Hawaiian Ialands previous to 1776," HRS, vol, 1 at 4201(7) of the Hawaiian Hones Commission Act, for the purposes of this opinion, we use the tera to mean “any individual who is a descendant of the aboriginal people who, pricr te 1772, occupied and exercised sovereignty in the area that now constitutes the state of Hawai'i.” Pub. L. Wo. 203-150, 107 Stac. 2510 (1993), *** FOR PUBLICATION *** trust, is vested in the Department of Land and Natural Resources (puNR), pursuant to HRS § 171-3 (Supp. 2006). See also Pele Defense Fund, 73 Haw. at 586-87, 837 P.2d at 1254. *** In 1978, the people of Havai'i clarified the state's trust Obtigation to native Havaisane during a Constitutional Convention, ae set forth in various provisions of the Hawaii Conetitution, including article x12, sections 4 through €,- . wherein OWA wae created and charged with fanaging proccede derived from the ceded lands and Geeignated for the benefit of native Hawai lane, Reditionally, article ti, section 7 of the Hawai'd Const itution requires the state £0 enact legislation Fegarding ite trust obligations. Thus, in 1979, legislation wee enacted that set forth the purposes of OHA and described the powere and duties of the trustees... «1979 Bese i. het 196, §-2 at 398-99, § 8 at 406 (codified at HRS chapter 10) {.]- in 1980, the legialacure anended HRS chapter fe by adding Hes § 10°13.5, which proviged that “twenty Ber cent of all {unde derived from the public land trust shall bbe expended by OHA for the purposes of thie chapter-" = = 3580 Haw. Seas. L. Act 273, $1 at 525(.") QHA II, 110 Hawai'i at 340-41, 133 P.3d at 769-70 (citations, original brackets, and ellipsis omitted) (emphasis in original). Although not pertinent to the instant appeal, we concluded, in Yamasaki, that the construction of the ter= “funda,” ao used in HRS § 10-13.5, *provide[d) no judicially discoverable and manageable standards for resolving the Gisputes|, ive.) whether OHA wae entitled to (1) a portion of damages received by the State for illegal mining of sand from public land and (2) a pro rata share of incone and proceeds fron sales, leases, or other Bispositions of certain public lands,) and [that the disputes] cannot be Geclaed withost initial policy determinations of a kind clearly for fonjudicial discretion.” 69 Haw, at 273, 737 P.24 at 457 (citation, internal Quotation marks, and original Brackete omitted). Consequently, the [egisiacure enacted Act #04, amending HRS § 10-i3.5 by essentially gubetituting sincones" for "funds" and defining the term “revenue.” 1950 Haw. Sess. Le Act 304, $83, 7 ac 948, 951; HR SE 20-15.5 (2993), 10-2 (1983), Rowever, in QHA-T, we invalidated and effectively repezied Act 304 as conflicting with federal law, 96 Hawai'i at 399, 31 P.3d at 912. + Me observe that the trial court found that, *[i]n recent years, there have been discussione and sovenent toward the creation of a sovereign Hawaiian Government, and thie rovenent has received both state and federal Fecognitios." Sone echolare dispute that this movenent has been of recent Snception, stating instead that, "{elver since the illegal overthrow and annexation, the native people of Hawali -- identified as ‘Kanaka Mali,’ Shative Havaiiang’ or ‘Hawaiians’ -- have struggled to regain their culture, recover thelr lands and restore their sovereign nation." Jon M. Van Dyke © Melody K. WacKentie, An Intvodction to the Richte of Native Havailan People, io-JUL Maw. B-d. 63, 63 (2006) (foothore omitted). (continued...) *** FOR PUBLICATION *** Moreover, in 1993, the year that marked the one- hundredth anniversary of the overthrow of the Kingdom of Hawai'i, both houses of Congress passed the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii (hereinafter, the Apology Resolution], which was signed into law by then-President Bill Clinton on November 23, 1993 as Public Law No. 103-150, 107 stat. 14. continued) ‘he trial court further found that ‘various Hawaiian groups support () aitterent forms of sovereionty.- However, ae observed by one scholar, “fulieinacely,, (native Hawaiians seek return of [the ceded Lands} from both “How such lands would be cared for and fmanaged, who would have Jurisdiction over then, and what rights [nJative Ravailane could exercise upon them are crucial aspects of [slative Hawaiian felf-governance and sovereignty.” ative Hawaiian Eights Handbook, 40 (Welody Kapiiialoba MacKenzie, ed:, 1981) Additionally, we note that the trial court found that the federal legislation comoniy referred to as the "akska Bill” was passed cut of the Senate Comittee on Indian Affairs on September 21, 2001... .. The Comittee Report on the Akaka Bill expiaine that iee purpose "is to authorize a Process for the reorganization of = [nJative Havaiian Government and to provide for the recognition of the {plative Hawaiian goveranent by the United States for the purpose of carrying on a governnent-to-government Felationship. The Akaka Bil1, if enacted(,] . . . provides that the federal government 16 authorized to Aegotiate with the Seate and the Feorganized [native Havalian goverment for a transfer of land and resources to « (njative Hawalian government. The [n]ative Hawaiian governuest created by {ene Akaka 8i11) would thus have a land base and resource and a status einilar to that over other native peoples in the United States, The Comittee Report to [ehe Akaka B111] ‘That "it de the Committee's intent that the Feferences to ‘land, resources, and assets dedicated to injative Hawaiian use" include, but not be limited to Lande set asise under the Hawaiian Homes Commission Act and ceded Tends" ‘The legislation is still pending before the United Congress, sea (footnotes omitted.) We take judicial notice that the current version of the Akaka Bill was passed by the House of Representatives on October 24, 2007. asi0 *** FOR PUBLICATION *** (1993). The Apology Resolution provides, in its entirety, as followa: Yoint Resolution to acknowledge the 100th anniversary of the Sanuary 17, 1693 overthrow of the Kingdom of Hawail, and to offer an apology to (slative Havaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii Whereas, prior to the arrival of the firat Suropeans in 2076, the {n)ative Hawaiian people lived in a highly organized self-sufficient, subsistent social eyaten based on communal land tenure with'a sophisticated language, culture, and religion; Wiereas{,] @ unified monarchicel government of the Hawai lan Islands uss establishes in 1610 under Kamehameha , the first King of Hawaii; Wnereas, from 1626 until 1893, the United states recognized the independence of the Kingdon of Hawaii, extended full and complete diplonstic recognition to the Hawaiian Governnent. land! entered into treaties and conventions with the Hawaiian Ponarchs to govern comerce and navigetion in 1626, 1962, Tees, 1975, ana 2667; Whereas.) the Congregational Church (now known as the United church of Christ), through ite Anerican Board of Connissioners for Foreigh Missions, sponsored and sent nore than 100 missionaries to the Kingdom of Hawail between 1620 nd 1850; Whereas, on January 14, 1693, John L. Stevens (hereatter Yeferred to in this Resolution ae rhe “United States Minister"), the United states Minister asaignea to the jovereign and independent Kingdom of Hawaii conspired with = ‘nall group of non-Hawaiian resident of the Kingdos of Nawaii; including citizens of the United States, to overthtow the indigenous and lawful Government of Hawaii; Whereas, in pursuance of the conspiracy to overthrow the Goverment of Hawall, the United States Minister and the naval representatives of the United States caused armed aval forces of the United staten co invade the sovereign Mawaiian sation on January 16, 1893, and to position themselves near the Hawaiian Government buildings snd the Tolani Palace to intimidate Queen Liliuokalani and her rand financiers sea the Haxalian monarchy and proclaimed the establishment of a Provisional Government Wnereas(,) the United states Minister thereupon extended Giplonstic recognition to the Provisional Goveranent that Was formed by the conspirators without the consent of the Inlative Hawa‘ian people or the lavful Government of Hawaii *** FOR PUBLICATION *** land in violation of treaties between the two nations and of international Iaw; lihereas, soon thereafter, when informed of the risk of Bloodshed with resistance, Queen Liliuokalant issued the following statenent yielding her authority to the United Statew Government rather than to the Provisional Governnent: I{,] Lilivokalani, by the Grace of God and under the constitution of the Hawaiian Kingdon, Queen, Go hereby solemiy protest against any and ail Seco done against myself and the Constitutional Goverment of the Hawaiian Kingdon by certain persons claiming to have established = Provisional Government of and for ehis Kingdom. mat I yield to the superior force of the United States Of America whose Minister Plenipotentiary, His Sxcellency John L. stevens, has caused United States troops to be landed at Nonolwiu and declared that he would support the Provisional Government he Tae th: Biotest and impelled by sald force vield mr sathoril hn time. of ‘fheUaited States shall, spon facts being sent che Tepresentatives aod reinstate me in the Bithericy whieh I clain as the Constitutional Sovereign of the Hawaiian Telands. Done at Honolulu this 17th day of January, A.D. 3099, whereas, without the active support and intervention by the United States diplosatic and miltary representatives, the [nsurrection ageiner the Government of Queen Liliuokalant would have failed for lack of popular support and Snougficient ares; Whereas (,) on February 1, 1893, the United states Minister Taised the Anerican flag and proclaimed Hawaii to be a protectorate of the United states; Whereas, the report of a Preaidentially established Ynvestigation conducted by former Congresanan Janes Blount into the evente surrounding the insurrection and overthrow of January 17, 1693, concluded chat the United states Giplomatic and military representatives had abused their Guehority and were responsible for the change in government; here a renult of this investigation, the united States inieter to Hawaii wae recalled from Ris diplomatic port and the military commander of the United States arned Rorces stationed in Hawail was disciplined and forced to fesign his comission; *** FOR PUBLICATION *** Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reported fully and accurately on 7 comitted with the participation of 2 Aipionatic representative of the United States and without futhority of Congress”, and acknowledged that by such acts the governsent of @ peaceful and friendly people was overthrown; Whereas.) President Cleveland further concluded that a = ognd called for the restoration of the Hawaiian monarchy? Whereas(,] the Provisional Government protested President Cleveland's call for the restoration of the monarchy and continued to hold state power and pursue annexation to the United states; Whereas{,] the Provisional Government successfully lobbied the Comittee on Foreign Relations of the Senate (hereafter, referred to in this Resolution as the "Conmittee") to conduct a new investigation into the events surrounding the overthrow of the monareny; Whereas(,) the Comittee and’ its chairman, Senator John Morgan, conducted hearings in Washington, D.c., from Decenber 27, 1093, through February 26, 180, in which mnenbers of the Provisional Government justified and condoned The actions of the United States Minister and recommended annexation of Hawaii? Wnereas, although the Provisional Goveranent was able to Obecure the role of the United states in the illegal Overthrow of the Navaiian monarchy, it vas unable to rally the support from two-thirds of ene Senate needed to ratizy a treaty of annexation; Whereas, on July 4, 1894, the Provisional Government Geclared itself to'be the Republic of Havails Whereas, on January 24, 1895, while Imprisoned in Iolani Palace, Queen Lilivokalans was forced by representatives of the Republic of Hawaii to officially abdicate her throne Whereas, in the 1896 United states Presidential election, William McKinley replaced Grover Cleveland; Wnereas, on July 7, 1698, as a consequence of the Spanish-Averican War, President McKinley signed the Newlands Soint Resolution that provided for the annexation of Mawail; Weereae, through the Newlands Resolution, the self-declared Republic of avail ceded sovereignty over the Hawaiian Islands to the United States; -10- *** FOR PUBLICATION *** OO wnereas, ie 1 also 290 ii [nlative Havaiian people of Havail or their soversian government: ("1 hereas{.1 the Congress, through the Newlands Resolution, Taritied the cession, annexed Havaii as part of the Usited States, and vested title to the lande in Hawaii in the United’ states; Whereas.) the Newlande Resolution also specitied that Westies existing between fawaii and foreign nations were to Immediately cease and be replaced by United states treaties with sch ations; Whereas.) the Newlands Resolution effected the transaction Between the Republic of Hawaii and the United states her ft ela te tank oa Whereas, on April 20, 1900, President McKinley signed the Organic Act that provided a governnent for the territory of Revell and defined the political structure and powers of the herly established Territorial Government and its Felationship with the United Staten: whereas, on August 21, 1959, Hawaii became the soth state of the United states; Whereas (,] the health and well-being of the {native Hawaiien people is intrinsically tied to their deep feelings and attachment to the Land; ihereast,) the long-range economic and social changes. in Hawsli over the nineteenth and early twentieth centuries have been devastating to the population and to the health ane well-being of the Hawaiian peopley *** > As this court stated in OWA I: tn addition to ite sovereignty, the Republic "ceded and transferred to the United States the absolute fee and Ownership of all public, Government, or Crom lands belonging to the Goverment of the Hawaiian Islands together wich every right and appurtenance thereunto appertaining.” Yasuaakl, 69 Hav. at 159, 737 Po2d at 449, Following Zanexation and until 1989, Hawaii's seat of power was vested inva Territorial Government. gee Organic Act § 3, Act of April 30, 2990, c. 339, 31 Stat. 141, reprinted in (HRS, Mel vat $8) 43, 44 [Of the Organic’ Act} (establiching’ the Sovernment of the Territory of Hawas'l) 96 Mawas'{ at 269-90, 92 P.3d at 902-03. oa *** FOR PUBLICATION *** Whereas(,) the [nlative Hawaiian people are determined to preserve, develop end transmit to future aenerations their ancestral territory. and their cultural identity in Accordance with their ow spiritual and traditional beliefs, SUAKOME, practices, language, and social institutions: Whereas, in order to promote racial harmony and cultura? Understanding, the Legislature of the State of Hawaii has determined that the year 1993 should serve Hawai as a_year of special reflection on the rights and dignities of the Injative Hawaiians in the Hawaiian and the Auerican sockets Whereas (,] the Eighteenth General Synod of the United Church of Christ in recognition of the denomination's historical Complicity in the illegal overthrow of the Fingdom of Hawaii in 1883 directed the oftice of the President of the Uniced Church of Christ to offer a public apology to the [alative Hawalian people and to initiate the procese of reconciliation between the United Church Of Chriet and the (alative Hawaiians; and Whereas, it is proper_and timely for the Congress on the cccasicn ot the Tependiog one hundredth afniversaty of the event, £0 acknow) orie sian) Eo the inlariy ea che KeconciLiation efforts of the State of Hawaii and the United Ghurch of christ with Inlative Havaliane, “Now. therefore, best Resolved by the Senate and House of Representatives of the United state of American in Congr venbied, SECTION 1, ACKNONLEDaRGHET AND APOLOGY. ‘The Congres (2) _on the occasion of the 100th anniversary of the éllegal overthrow of the Kingdon of Hawai on January 1, 1893, ledges 1 itiean at which ive (2), recognizes and comends the efforts of reconcitiation initiated by the State of Hawaii and the United church of Christ with (nlative Havasianey (2), ,apolosizes te Inlative dawalians on bebalt of the people of the sited States for the overthrow of the Kingdon of Hawaii on January 17, 1893 with the participation of Agente and citizens of the United states, and the Seprivation of che richte of [nlative Havaiiane to seif- (4) expresses ite commitment to acknowledge the ranifications of the overthrow of the Kinggom of Hawaii, in eo provs 8 one -12- *** FOR PUBLICATION *** (5) urges the President of the United states to also Acknowledge the ramifications of the overthrow of the Kingdom of Mawai! and to support reconciliation ef forte Between the United Seates and the (alative Hawaiian people sec{Tiow] 2. Dermurrrons. As used in thie Joint Resolution, the term *(alative Ravallant meane any individval wo is 2 descendent of the aboriginal people who, pricr to 1778, occupied and cnerelsed sovereignty in the avea that now constitutes the state of Hawaii Sec(riow) 3. Drsctamwen. x a ase ‘asttlamant of any claima againat the United States, Approved Novenber 23, 1993 Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (emphases added) (internal quotation marks omitted) . Factual Backsround In 1987, the legislature, in an effort to renedy the problem of the "critical shortage of safe and sanitary housing unite which are affordable to lower incone residents of the State(,]* established the Housing Finance and Development Corporation (HFDC)"® via ite enactment of HRS chapter 2018, 1987 L. Act 337, § 15 at 1045; HRS §§ 2018-2 and -3 (2993). HDC was authorized to, inter alia, develop © tm 1997, the legislature consolidated MPDC with the Hawal't Wousing Authority and the fental housing trust fund into che Housing and Community Development Corporation of Hawaii (HCDCH) 1997 Haw. Sess. Ly Act 350, $2 at Yoio-2h7 HRS chapter 20:6 (2001)- However, the legislature, in 2006, divided HeoeH into two separate agencies ~~ the Hawai'i Housing Finance and Development Corporation ané the Mavai'l Public Housing Authority. See 2006 Haw. Sean. L. Act 280, $2 at 709; 2007 Haw. Sess, L. Act 249, § 2 at 777-806 (codified sn ues chaptere 201K and 3560). Wevertheless, inasmuch ae the {netant action commenced prior to the afSrenentioned legislative changes, we continue to utilize “HFDC,” as do the parties, throughout this opinion. -13- *** FOR PUBLICATION *** fee simple or leasehold property, construct dwelling unite thereon, including condoniniuns, ‘planned units, and cluster developments, and sell, lease, or rent or cause to be leased for rented, at the lowest possible price to qualifies Tesidente, nonprofit organizations, of government agenci with an eligible developer or in its om benalf, either: (a) Fully completed dwelling units with the appropriate interest in the land on which the Gvelting unit is located; or (2) Unite which are substantially complete and habitable with the appropriate interest in the land on which the Gvelling unit ls located; oF (3) The land with siee inprovenente (other than the dwelling unit) “either partially or fully developed. HRS § 201E-201(a) (1993). Consequently, that same year, 1987, the HFDC began to examine areas in the State that had a ‘critical shortage of housing" and selected two potential sites -- (2) Weiali'i in West Maui and (2) La‘i‘opua in North Kona," both of which were comprised of ceded lands -- for the development of housing projects. After conducting feasability studies of the potential sites, the HFDC filed a petition with the Land Use Commission (LUC) in December 1989, seeking to reclassify the Leials‘i parcel from agricultural to urban use, At a public hearing on April 10, 1990, OKA, through its Land and Natural Resources Officer, gave oral testimony reconmending conditional approval of the petition. on May 18, 2990, the LUC granted the petition, recl. fying the property for urban use. Thereafte: HEDC began a residential housing development project for the parcel. As the “Master % As stated gupra note 5, other than a few references to the La'iopua parcel in this opinion, the transfer of said parcel is not specifically Challenged by the plaintiffs. woreover, the parties’ briefs and argunente focus primarily on the Leiali'i parcel and the ceded lands in general The ueiali'i parcel was part of the former crown lands subject to subsection 5(b) of the Admission Act o14- *** FOR PUBLICATION *** Developer" for the Leiali'i project, HFDC was responsible for providing the major infrastructure, i.e., roadways, lighting poles, and sewer hook-ups, needed for the residential development. HFDC contracted with a private developer to build the houses. In 1992, the legislature enacted Act 318 (codified as HRS § 10-13.6 (1993)) that set forth a forma to compensate OHA for the “villages of Leiali'i, Maui and villages of La‘i‘opua, Hawai'i" that were to be conveyed from DNR to HFDC. HRS § 10-12.6(e) (Supp. 2007); see algo 1992 Haw. Sess. L. Act 318, § 10 at 1016-17. According to Act 318’s formula, OHA was to be compensated twenty per cent of the fair market value of the subject lands. HRS § 10-23.6(a). As a result, OHA and DLNR each retained an appraiser to determine the fair market value of the Leiali'i parcel. In November 1993, Congr adopted the Apology Resolution, quoted fully supra and discussed more fully infra, wherein it expressly recognized, inter alia, that: (1) the overthrow of the Kingdom of Hawai'i waa illegal; (2) the taking of crown, government, and public lands of the Kingdom was without consent or compensation; and (3) “the indigenous Hawaiian people never dizectly relinguished their claims . . . over their national lands to the United States.* Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1520. Congress also formally and publicly apologized to native Hawaiians on behalf of the United -15- *** FOR PUBLICATION *** States for the overthrow and the deprivation of native Hawaiians’ rights to self-determination. Jd, Thereafter and as a result of the adoption of the Apology Resolution, OHA denanded, based on the advice of attorney William Meheula, that a disclaimer be included as a part of any acceptance of funds from the sale so as to preserve any native Hawaiian clains to ownership of the ceded lands, of which the Leiali‘i parcel was a part. In October 1994, HFDC declined to honor OHA’s requested disclaimer because "to do so would place a cloud on [the] title, rendering title insurance unavailable to buyers in the Leali‘i Isic] project." Thereafter, on Novenber 4, 1994, *DINR transferred about 500 acres of ceded lands” at Leiali‘i to HDC for the consideration of $1.00, HFDC tranenitted to OHA a check in the amount of §5,573,604.40 as OHA’s entitlement in accordance with Act 318. Based on advice from then-OKA counsel Earl Anzai Chat the Apology Resolution created a cloud on the title of the ceded lands, OHA refused to accept the check. The plaintiffs thereafter filed suit in Novenber 1994. Subsequent to the filing of the plaintiffe’ lawsuit, the HFDC made a policy decision to stop work on the project. By that time, all of the roadways, utilities, lighting poles, and sewer hookups had been completed, including sone landscaping Work. As of December 1994, HFDC estimated it had already invested $32 million into the Leiali‘i project. -16- *** FOR PUBLICATION *** B wi 1. The Complaint and Pretrial Motions on August 11, 1995, the plaintiffe filed an amended complaint (First Anended Complaint), seeking injunctive and, alternatively, declaratory relief." The plaintiffs requested: (2) an injunction against all sales of ceded lands (Count 1); (2) an injunction to specifically bar the sale of the Leiali'i parcel (Count II); and, alternatively, (3) a declaratory judgment that “(a) any conveyance to a third-party violates the Hawai'i State Constitution and the Admission Act, and/or (b) any sale of ceded landa does not directly or indirectly re! ave or Limit claims of [nJative Hawaiians to those lands" (Count 12I)." The plaintiffa alleged that they would suffer irreparable harm if the defendant were allowed to transfer ceded lands to third-parties inasmuch a: salienation of the land to a third-party would erode the ceded lands trust and the entitlenente of the native Hawaiian people.” In other words, the plaintiffs alleged that an injunction was proper because, in light of the Apolosy sesolution, any transfer of ceded lands by the State to third- » initially, the plaintiffs filed separate complaints. On Novenber 1994, the OMA plaiatifes filed a complaint in the Circuit Court of the First Cirelit.. On Novenber 9, 1994, the individual plaintiffs filed 2 complaint in the Circuit Court of the Second Circuit. Upon che filing of the First Anended Complaint in Auguet 1995, the individual plaintiffe and allegations pertaining to their clains were added to those of the OHA plaintiffs in the First Circuit Court action. an their First Anended Complaint, the plaintiffs asserted two other alternative claime that addressed valuation tesues concerning the Lesalii parcel (Counts IV and v). However, these counts were bifurcated from the Case for later determination and are not at issue in this appeal. Counts IV and V are currently stayed pending this appeal. -17- *** FOR PUBLICATION *** parties would anount to a breach of trust inasmuch as such transfers would be ‘without regard for the claims of Hawaiians to those lands* to whom the State, as trustee, owes a fiduciary duty. 2, The Trial and the Trial Court’s written Decision A jury-waived trial commenced on Novenber 19, 2001. At trial, the plaintiffs adduced evidence regarding the events that surrounded the transfer of the Leiali‘i parcel, the importance of the land to the native Hawaiians, analogies to Native American property rights, and the developing body of international law that favors the rights of indigenous people to traditional lands, ‘The defendants primarily adduced evidence that the State was authorized to alienate ceded lands from the public lands trust. Additionally, the defendants argued that the plaintiffs were collaterally estopped “from even arguing that the State does not have the power to sell [the ceded lands)” based on the unpublished decision in Trustees of the Office of Hawaiian Affaire v. Board of Land and Natural Resources, No. 19774 (Haw. Mar. 12, 1998) (mem.) hereinafter, Ewa Marina),"* wherein thie court held that the State, as ceded lands trustee, did not breach its duties by granting a dredge permit for submerged lands to a private party, discussed more fully infra, “As correctly cited by the trial court, Hawai'i Rules of Appellate Procedure (MRAP) Rule 38(c) (2007) prohibite citation to an unpublished esorandum opinion, "except when the opinion or unpublished dispositional Order establishes che law of the pending case, ree judicata or collateral eevoppel [.1* -18- *** FOR PUBLICATION *** on December 5, 2002, the trial court issued a 105-page written decision, entitled "Opinion of the Court” [hereinafter, the written decision]. As discussed more fully infra, the trial court ruled that, although Ewa Marina did not collaterally estop the plaintiffs from bringing their claims, such claims were barred by the doctrines of: (1) sovereign immunity; (2) waiver and estoppel; and (3) justiciability -- specifically, political question, ripeness, and the mandate against advisory opinions. Notwithstanding the above rulings, the trial court also concluded that the state had the express authority to alienate ceded lands from the public lands trust. on December 13, 2002, the plaintiffs filed a motion for RCP Rule 54(b) certification or, in the alternative, for leave to file an interlocutory appeal, which was granted. The trial court, on January 31, 2003, filed ite HRCP Rule 54(b) judgment in favor of the defendants. Both sets of plaintiffs separately filed timely notices of appeal on February 3, 2003. TT. STANDARDS OF REVIEW A. Findings of Fact The (erial court's findings of fact) axe reviewed on appeal under the “clearly erroneous" standard. A (finding of fact] is clearly erroneous when (2) the record lacke Substantial evigence to jpport the finding, or (2) despite Substantial evidence in support of the finding, the Appellate court ia nonetheless left with a definite and firm Conviction that a mistake has been made. Substantial evidence is credible evidence which ia of euffictent quality nd probative value to enable a person of reasonable caution to support a conclusion. <19- *** FOR PUBLICATION *** Estate of Klink ex rel. Klink v, State, 113 Hawai'i 332, 351, 152 P.3d 504, 523 (2007) (citations, internal quotation marks, original brackets, and ellipses omitted) (format altered) . B. Conclusions of Law This court reviews the (trial court's conclusions of ew) de nove. A [conclusion of law) is not binding upon an appellate court and is freely reviewable for ite Correctness. Moreover, a [conclusion of lew) that Se Supported by the [eriai coure’s finding of facte) and that Peflects an application of the correct rule of law will not, be overturned Hui Kako'o Aina Ho'opulapula v. Bd. of Land & Natural Res., 112 Hawai'i 28, 38, 143 P.3d 1230, 1240 (2006) (citations, internal quotation marki and original brackets omitted). 111. PIScUSSION Ae previously stated, the plaintiffs seek to enjoin the defendants from selling or otherwise transferring the Leiali'i parcel to third parties and selling or otherwise transferring to third parties any of the ceded lands in general until a determination of the native Hawaiians’ claims to the ceded lands is made. Alternatively, the plaintiffs seek a declaration that the State is not authorized to alienate ceded lands from the public lands trust or, if the trial court ruled that the State is s0 authorized, a declaration that such alienation would not limit the clains of native Havaiians to the ceded lands. at the heart of the plaintiffs’ claims, before the trial court and on appeal, is the Apology Resolution. The plaintiffs essentially believe that the title to the ceded lands is clouded as a result of the Apology Resolution’s recognition that the native Hawaiian people -20- *** FOR PUBLICATION *** never relinquished their claims over their ancestral territory and that, therefore, the defendants have a “fiduciary obligation to protect the corpus of the (public (Lands {t]rust until an appropriate settlement is reached between native Hawaiians and the state." specifically, the plaintiffs argue that the trial court erred in concluding that (2) the doctzine of sovereign immunity barred consideration of the plaintiffs’ claims; (2) the defenses of waiver and estoppel barzed the plaintiffs’ requests for injunctive and declaratory relief with respect to the sale of the Leiali‘i parcel; (3) the State's transfer of the Leiali"i parcel did not breach and any future transfer of ceded lands would not breach -- the State’s fiduciary duties as trustee of the public lands trust of which the ceded lands are a part; and (4) the doctrine of political question barred the plaintiffs’ requests for injunctive and declaratory relief. Additionally, the OHA plaintiffe assert that the trial court erred in: (2) determining that their claim for injunctive relief with regard to the future sale of ceded lands in general was barred by the ripene: doctrine; and (2) making several evidentiary rulings. Preliminarily, we believe it appropriate to first examine the language of the Apology Resolution inasmuch as the plaintiffs’ current claim for injunctive relief is, as more fully described infra, based largely upon the Apology Resolution, which -21- *** FOR PUBLICATION *** the defendants believe is inapplicable. Me also believe it appropriate to examine related state legislation enacted around the same time that Congress adopted the Apology Resolution. In our view, thie preliminary examination is critical to an understanding of the plaintiffs’ claim for injunctive relief. AL The Resolu Late islati The plaintiffs’ claims for injunctive relief and, alternatively, for declaratory relief, are based on their belief that the *recognition in{, inter alia, the Apology Resolution] of the illegality of the transfer of lands and the ongoing reconciliation and negotiation process dramatically reinforces the State’s fiduciary obligation to protect the corpus of the [p]ublic (lands [t]rust until an appropriate settlement is reached.* Specifically, the OHA plaintiffs argue that the “congressional recognition of illegality, and its accompanying call for a ‘reconciliation’ through a proc now underway, has changed the legal landscape and restructured the rights and obligations of the sta "The OHA plaintiffs further ai that the failure of the Apology Resolution to complete the process of settling [nlative Havaiian elaine does not undercut its significance in recognizing the bagea for ithe plaintifes| caine... . As the lerial cloure explained the Apolosy Resolution ‘contires the factual foundarion for ‘the claims that previously had been asserted.© (Bmphagis added.) Additionally, the OHA plaintiffa maintain that the “Apology Resolution by itself does not require the state to turn over the lands to the [nJative Hawaiian people, but it puts -22- *** FOR PUBLICATION *** the State on notice that it must carefully preserve these lands so that @ subsequent transfer can take place when the political branches reach an appropriate resolution of this dispute. The defendants admit that the Apology Resolution vposits that the overthrow was illegal and that the [cleded (Ilands were transferred without compensation." However, relying on the disclaimer language contained therein, the defendants assert that ‘nothing in the Apology Resolution serves as a settlement of claims." Additionally, the defendants maintain that the Apology Resolution’s “historical statements provide no guideline as to what renedy, if any, is appropriate.” ‘The trial court, in analyzing the effect of the Apolosy Resolution on the plaintiffs’ claims, stated: jolution apologizes for the overthrow of the Kingdom of Hawas't on January 17,2693, with the jarcicipation of agente and citizens of the United states, Bhd for’ the deprivation of the inherent rights of native Hawaiians to self-detersination and sovereignty. It also Supports, recognizes, and commends reconciliation efforte of the'Stace cf Mwai with native Hawaiians. Congress is binding upon this cosrt. that the overthrow of the Kipade nied ernst ‘Tecould not have been accomplished without the assistance SOUS acente. and that the subsequent “cession of these i ed st 96 wae "Vil e Gongiesa also expressed its conmitment to acknowledge the ramifications of the overthrow of the Kingdon of Hawai'i [norder te provide a proper foundation for reconciliation between the United states and the [alative Hawaiian (pleople, and urged the President of the United states to dies acknowledge the ranifications and £0 support Feconeiiiation efforte -23- *** FOR PUBLICATION *** Although, by ite terms, the 1993 Apology Resolution the Onited Staten." or "result in any chanaes in entat ina dau," (8. Rep. No. 105-123 (1953) at 35,] of ieeelt create a Gaim ciont, or cause of action, Tmice’v. cavetans, 961 F Supp. 1523, i546 2.24 1b. Haw. 1996), rev'd-on other ‘grounds, 520 0.8. 495 (2000) ,) 4 confixme the factual elaine chat pt sh asserted (Emphases added.) (Footnotes omitted.) As previously stated, the Apology Resolution was adopted by both the House and the Senate, signed by then- President Clinton on November 23, 1993, and designated as Public Law No. 103-150. Generally, when a joint resolution such as the one at issue in this case has emerged from legislative deliberations and proceedings, it is treated as law. Ann Arbor R. Go, v. United States, 281 U.S. 658, 666 (1930). Consequently, the rules applicable to statutory interpretation are also applicable to the Apology Resolution. Norman J. Singer, Statutes. and Statutory Construction § 29:8 (6th ed. 2002 Statutes § 306 (2007). It is well-settled that, (when construing a statute, our foremost obligation is to certain and give effect £5 the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Ang in the conte ve statute: ‘sonstius it ina nanner consistent with ite purmose. Soon vw. City & County of Honolulu, 98 Hawai'i 233, 245, 47 P.3d 348, 360 (2002) (emphasis added) (citation omitted). Additionally, “the legislature is presumed not to intend an abeurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality." Keliipuleole v. Wileon, 65 Hawai'i 217, 222, 941 7.24 300, 305 -24- *** FOR PUBLICATION *** (997) (internal brackets and citations omitted). In other words, “a rational, sensible and practicable interpretation of a statute is preferred to one which is unreasonable or impracticable{.]* Id. at 221-22, 941 P.2d at 304-05 (internal brackets and citation omitted). Moreover, Lilt is a cardinal rule of statutory construction that Courts are bound, if rational and practicable, to give Effect coall pate of @ statute, and that no clause, Sentence, or word shall be construed as superfluous, void, Se"ineignéticant if a construction can be legitimately found Ghich will give force to and preserve all the words of the Camara v. Agsalud, 67 Haw. 212, 215-16, 685 P.2d 794, 797 (1984) (citations omitted) As previously quoted, the Apology Resolution stat relevant part: Whereas{,] the indigenous Hawaiian people never directly ope of ehele ‘esas to ated, feterendum, hereas(,] the health end well-being of the (nlative 25d tr eats. = Ancestral territery._and their cultural identity in 22iSriance with their ovn spiritual and eraditional beliets: TT -2s- *** FOR PUBLICATION *** ‘Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (emphases added). Based on 2 plain reading of the above passages, we believe Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands, which were taken without consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations. Equally clear is Congress’s “express [ed] + commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the [nlative Hawaiian people.” Id. We agree with the OHA plaintiffs that the "Apology Resolution by itself does not require the state to turn over the [ceded] lands to the [nlative Hawaiian people[.]* In our view, the Apology Resolution acknowledges only that unrelinguished claims exist and plainly contemplates future reconciliation with the United States and the State with regard to those claims. ‘The defendants place great reliance on the Apology Resolution’s disclaimer that *[nJothing in [the resolution] is intended to serve as a settlement of any claime against the United States." Apology Resolution, Pub. L. No. 103-350, 107 Stat. 1510, In 0 doing, they essentially maintain that the plaintiffs are precluded from using the language contained therein to establish or support a claim for the return of the ceded lands. when reading the disclaimer language -- as we -26- *** FOR PUBLICATION *** must -- “in the context of the entire [Apology Resolution] and constru[ing] it in a manner consistent with its purpose,” Coon, 98 Hawai'i at 245, 47 P.3d at 360, the disclaimer provision dictates only that the Apology Resolution itself does not constitute a settlement of any of the unrelinguished clains to the ceded lands; in other words, it does not bestow upon native Hawaiians any ownership interest in the ceded lands. As we have stated, the Apology Resolution recognizes, inter alia, that native Hawaiians (1) never "directly relinquished their claims to . thesr national lande to the United States" and (2) ‘are determined to preserve, develop and transmit to future generations their ancestral territory." If we were to determine, as the defendants appear to urge, that the disclainer bars the plaintiffs from relying upon the Apology Resolution -- a public law -- in pursuing what the resolution clearly recognizes -- their unrelinguished claima to the ceded lands, -- we would be violating one of the cardinal rules of statutory construction, namely, that this court ie bound “to give effect to all parts of a statute* so that “no clause, sentence, or word shall be construed as superfluous, void, or insignificant." Camara, 67 Haw. at 215, 685 P.2d at 797. Subscribing to the defendant: reading of the disclainer would render superfluous the Apology Resolution's acknowledgnent of the plaintiffs’ unrelinguished claims to the ceded lands. In fact, given the Apology Resolution’s clear contemplation of future reconciliation, i.e., -27- *** FOR PUBLICATION *** settlement, it is not surprising that Congrese would include the aforementioned disclaimer after having clearly acknowledged the illegality of the overthrow, the existence of the native Hawaiians’ unrelinguished claims to the ceded lands, their deep feelings and attachment to those lands, and their determination to pursue their claims. Clearly, the Apology Resolution is not per sea settlement of claims, but serves as the foundation (or starting point) for reconciliation, including the future settlement of the plaintiffs’ unrelinguished clains. Such interpretation is supported by the october 23, 2000 report, issued by the United States Departments of interior and Justice (the Departments), entitled “From Mauka to Makai The River of Justice Must Flow Freely." As indicated by the trial court, the principal recommendation of the report states: Te is evident from the documentation, statements, and views received during the reconciliation process undertaken by (the Departeente] pursuant to [the Apology Resolution] that’ (alative Havailan people continue to maintain = Giseinct’ conmunity and Certain governmental atractures and They desire to increase their control over their own affaire fand institutions. As [al matter of justice and equity, this gelf-detersijation over thelr ovn atfaira within the ‘fwanework of [ilederal law, as do Native American tribes For generations, the United Staten has recognized the righte and promoted the welfare of [nJative Hawaliana as an Indigenous people within our nation through legislation, In March 1999, Senator Daniel K. Akaka requested Secretary of the Interior Bruce Babbitt ‘and Attorney General Janet Reno designate officie from their respective Deparenents whose task vould be "to Comence the Eeconciliation process."” John Berry, Assistant Secretary, and Mark Van Norman, Director of the Office of tribal Justice for the Department of Justice Were s0 designated and commenced public consultations in Hawai'i in Decesber i999.” over forty houre of public etatenente were heard, and the public consultation process ended in two Gays of formal hesrings on O'ehu. The Departments’ report “contains recomendations {(ineludiag « “proposed action’}] with respect to the continuation of the reconciliation prec should be read as merely the next step, as the United States and [nlsvive Mevalians sove forward in further dialogve.© -28- #8 FOR PUBLICATION *** Sees administrative action, and policy statenents, To sateauard ws tee avert = mr cule hee te clarify inbative Hawaiians’ political status dha to create @ framework for recognizing a government -to- Government relationship with @ representative [nlative Havaiian governing Body. (Format altered.) (Emphases added.) ‘The above interpretation is also supported by related state legislation enacted at around or subsequent to the adoption of the Apology Resolution specifically, Acts 354, 359, 329, and 340, Act 354, entitled "A Bill for an Act Relating to Hawaiian Sovereignty,” stated in pertinent part that: on January 16, 1893, John L. Stevens, American inister in Hawaii and friend of those supporting the Tnnexation of Mawa‘t to the United states, ordered the Gnited states marines to invade Honolulu under the pretext of protecting Awerican citizens and their property. Stevens Chefeafter recognized a new provisional government even before Queen Lilivokalani surrendered. The actions by the annexationiace were condensed by President cleveland” Special envoy and the President himself. when President Cleveland refused to submit a treaty of annexation to the Sesate, the new provisional government established the Republic of Hawai'i which lasted until annexation in 18 Sixty-one years later, Hawai'i Decane a state. ‘neil the provieional government vas recognized by John L. Stevens, the Kingdom of Hawai'i wae recognized as an Yndependent nation by the United States, France, and Great Britein. Many native Ravalians and other view the Overthrow of 1293 and subsequent actions by the United States, such as gupporting establishment of the provisional Goverment and Later the Republic of Nawai'i, the Gesignation of the crom and government lands as public {Shds, annexation, and the ceding of the public lands to the Federal government without the consent of native Hawaiians. as lilegel. Because the actions taken by the United states here viewed a8 illegal -ané done without the consent of Bative Haeallaie, samy native Wawaiians feel there ina val elsia fo tions ve Haas PERESSa end if not, nonetary reparations wade, and that Ehey should have the right to sovereignty, or the Tight to belé-determination and self-governeent as do other native Reerican peoples. che ea uere and lessee pea ea ation Signity of native Hawaiians. -29- *** FOR PUBLICATION *** 1993 Haw. Sess. L. Act 354, § 1 at 999-1000 (emphases added). In Act 359, also entitled "A Bill for an Act Relating to Hawaiian Sovereignty," the legislature made findings similar to those expressed in the Apology Resolution. 1993 Haw. Sess. L. Act 359, S§ 1-2 at 1009-11. ‘The stated purpose of Act 359 was to “facilitate the efforts of native Hawaiians to be governed by an indigenous sovereign nation of their own choosing.” 1993 Haw. Sess. L. Act 359, § 2 at 1010. The legislature established the Hawaiian Sovereignty Advisory Comission “to advise the legislature in carrying out the purposes of [the] Act." Id, § 4 at 1011. In enacting Acts 354 and 359, the legislature recognized that ‘the indigenous people of Hawai'i were denied . . . their lands,” 1993 Haw. Sess. L. Act 359, § 1(9) at 1010, and contemplated further action by the legislature to “to tak[e] steps to promote the restoration of the rights and dignity of native Hawaiians." 1993 Haw. Sess. L. Act 354, § 1 at 1000. In 1997, the legislature enacted Act 329. 1997 Haw. Sess. L. Act 329, § 1 at 956-58. Act 329, which attempted to clarify "the proper management and disposition of the Lande subject to the public land{s] trust and the proceeds and income therefrom, and to effectuate article XII, section 6 of the Hawai'i Constitution," stated that: ‘The legisiagure finde that the evente of history relating to Hawai'i and [njative Hawaiians, including those set forth in (the Apology Resolution) continie to. contribute today toa deep sense of injustice among many [a]ative Hawaiisne and others. vesoncll iat beat i -30- *** FOR PUBLICATION ** is possible only if it fairly acknowledses the past while ‘The Tegiviature further finds that over the last few decades, the Hawat fduents co hav nth Le perenne EecancLiiation, forenost anong these achieVenents have been the creation of che (0) ffice of Hawaiian (Alffaire and the Sliccation by legislative action co the [0] fice of Hawaiian ialffaire of substantial funda cut of a portion of the public land[s) trust established by section 3(f) of the Raniesion Act. The overriding purpose of this Act is to Continue this nonentum, through furcher executive and Tegielative action in conjunction with the people of Mawal't, re) n resolution. 1997 Haw. Sees. L, Act 329, § 1 at 956 (emphases added) . Adéitionally, we observe that, in 1993, the legislature found that “the island of Kaho'olawe{"] is of significant cultural and historic importance to the native people of Hawai'i,” 1992 Haw. Sess. L. Act 340, § 1 at 803, and dictated that: be return [of Kaho'olave] to the state, the Fesources and waters of Kahoolawe shall be beid in trust as Dare of the public lands trust; provided chat the state Sheil transfer management end control of the island and its waters to the sovereign native Havaiian entity upon its Tecognition By the United states and the state of Hawai'i. Id, at § 2 at 806 (codified as HRS chapter 6K) It is well-settled that native Hawaiian beneficiaries of the ceded lands trust have a “right to bring suit under the Hawai't Constitution to prospectively enjoin the State from ‘The island of Kaho'olave was used by the United states “as a military target range since 1941." 2993 Maw. Seve, L. Act 340, § 1 at 803. in 1990, the bombing and shelling of the isiand vas halted by Congtese ane the president of che United states, A federal commission, known a5 the Kabo'olave teland Conveyance Comission, was created by Congress to determine the terme of conveyance of the island to the state of Hawai oan *** FOR PUBLICATION *** violating the texms of the ceded lands trust." Pele Defense Eund, 73 Haw. at 601, 837 P.2d at 1262. Moreover, we have previously indicated in an analogous case dealing with the Hawaiian Homes Commission Act that the State, as trustee, “must adhere to high fiduciary duties normally owed by a trustee to its beneficiaries." Ahuna, 64 Haw. at 338, 640 P.2d at 1168. In describing the scope of the State's relevant fiduciary duties, this court, in ahuna, analogized such duties to the fiduciary duties of the United states to native Americans by quoting, with approval, the words of the United states Suprene Court and stated: Under a hunane and self imposed policy which has found expression in many acts of Congress and Mnerous decieions Of this Court, [the Government, has chazged iteslf with Tes coaguct, as disclosed in the acts of those who represent it in dealings with the Tndians, should therefore be iudaed by the most exacting fiduciary atandards. 1d. at 339, 640 P.2d at 1169 (quoting Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942)) (brackets and emphases in original) (format altered). In ahuna, we held that “(eJhe use of the term ‘most exacting fiduciary standards’ imports the notion that (this] court will strictly scrutinize the actions of the government." Id, at 339, 640 P.2d at 1269. Moreover, we observed that “the nature of the trust obligations of the [state] toward beneficiaries . . . may be determined by examining well- settled principles enunciated by the federal courts regarding lands set aside by Congress in trust for the benefit of other native Anericans(.]* Id. at 339, 640 P.2d at 1168. In -32- *** FOR PUBLICATION *** a particular, we cited three specific trust duties applicable to the State as trustee: (1) “the obligation . . . to administer the trust solely in the interest of the beneficiary"; (2) the obligation that the trustee “deal impartially when there is more than one beneficiary; and (3) the “obligation to use reasonable skill and care to make trust property productive[.J" Id. at 340, 604 P.2d at 1169-70 (citations omitted) Ae native Hawaiians, the individual plaintiffs are clearly beneficiaries of the ceded lands trust. Additionally, OHA, waich is charged ‘with managing proceeds derived from the ceded lands and designated for the benefit of native Hawaiians,” ONAIL, 120 Hawai'i at 341, 133 P.3d at 770 (citation omitted), can be said to be representing the interests of the native Hawaiian beneficiaries to the ceded lands trust. The State, as trustee, is under an obligation to “administer the trust solely in the interest of the beneficiary" and to “deal impartially when there is nore than one beneficiary." Ahuma, 64 Haw. at 340, 640 P.2d at 1269-70 (citations omitted). As previously discussed, the Apology Resolution and the aforenentioned related state legislation clearly contenplate that native Hawaiians (1) “never directly relinguished their claims to. . . their national lands to the United States," and (2) ‘are determined to preserve, develop and tranamit to future generations their ancestral an eo doing, ve stated that the “reasonable prudent person standard applies to protecting and caring for the (erust] property(.J* Ahuna, 64 Haw. at a4G, 640" F.2d at 2269. <3 *** FOR PUBLICATION *** SSS territory. Apology Resolution, Pub. L. No. 103-150, 107 stat. 1510. Ae such, we believe and, therefore, hold that the Apology Resolution and related state legislation, discussed supra, give rise to the State’s fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinguished claims of the native Hawaiians have been resolved. Such duty is consistent with the State's “obligation to use reasonable skill and care” in managing the public lands trust and the Ahuna court's declaration that the State’s conduct “should . . . be judged by the most exacting fiduciary standards." Ahuna, 64 Haw. at 339, 640 P.2d at 1169 (citations and emphasis omitted) . Keeping the aforementioned discussion and holding in mind, we now turn to examine the issues raised by the parties in this appeal -- the first of which is the defendants’ contention that the plaintiffs’ claim for injunctive relief is barred by the doctrine of collateral estoppel. B. Collateral Estoppel Relying on Ewa Marina, the defendants ext, as they Gid before the trial court, that the plaintiffs are collaterally topped from relitigating whether the state has the power to alienate ceded lands from the public lands trust. The OHA Plaintiffs maintain that the trial court addressed the issue and “correctly rejected the argument presented by the [defendants] .* -34- *** FOR PUBLICATION *** In Ewa Maring, the plaintiffs -- OHA, Save Ewa Beach ohana, and two individual plaintiffs -- challenged the Board of and and Natural Resources’ (BLNR) issuance of a conservation district use area (CDUA) permit to Haseko, Inc. (Haseko). Ewa Marina, slip op. at 2. “Haseko submitted a CDUA permit application to the BLNR[,] seeking a permit to dredge a channel through state-owned submerged lands. The purpose of this permit was to allow Haseko to construct a 1400-slip marina as part of the proposed ‘Ewa Marina development project." Id. BLNR conditionally granted Haseko’s application for the CDUA permit on December 29, 1994. Id, at 8. The plaintiffs timely appealed the decision and order of the BLNR to the circuit court, which affirmed the decision of the BLNR. Id, at 8-9. The plaintiffs then appealed to this court, arguing, inter alia, that “the issuance of the permit violated the fiduciary obligations of the State of Hawai'i under section 5(£) of the . . . Adm ion Act and the public trust doctrine’ and that “issuance of the permit constitute(d] an improper disposition of public lands.” Ids ar 8 ‘This court upheld the decisions of the circuit court and BINR, reasoning that ‘section 5(f) does not limit the use of the ceded lands thengelves to the five purposes[] 80 long as the proceeds fron the disposition of these lands are held in trust.” Id, at 21, Additionally, based on article XIZ, section 6 of the Hawai'i Constitution, this court concluded that the state -35- *** FOR PUBLICATION *** has the power to dispose of ceded lands. The actual use to Which these lands is put by this disposition does not have to comport with one of the five enumerated purposes in the Agnission Act ac long as fair compensation for the @isposition of these lands ie used for trust purposes, The actual seve in this case, therefore, is whether the Ammuance of the COVA permit in a proper disnosision-of ceded tends Id, at 21-22 (emphasis added) (footnote omitted). This court held that the “grant of the permit for the dredging of a marina entrance channel has an undisputably public purpose" and that, therefore, *BLNR‘s conditional grant of the permit to Haseko did not violate the public trust doctrine and was a proper disposition of public lands." Id, at 26-27. “Collateral estoppel is an aspect of ee judicata which precludes the relitigation of a fact or issue which was previously determined in 2 prior suit on a different claim between the same parties or their privies.” Pele Defense Fund, 73 Haw. at 599, 837 P.2d at 1261 (citations omitted) (format altered). Thus, the elements of collateral estoppel are: (2) the issue decided in the prior adjudication {s identical to the one presented in the action in question; (2) there ie a final Judgnent on the merits; (3) the isaue decided in the Prior adjudication vas essential to the final Judgment; and a) the party against whom collateral estoppel is asserted wae a party or in privity with a party to the prior Adjudication. Keahole Def, Coal., Inc. v. Bd, of Land & Natural ges., 110 Hawai'i 429, 429, 134 P.3d 585, 595 (2006) (citations omitted) nee algo Citizens for the Prot. of the W Kohala Coastline v. County of Hawai'i, 91 Hawai'i 94, 102, 979 P.2d 1120, 1128 (1999). These elements “are tempered only by the (format altered prerequisite that a plaintiff have a full and fair opportunity to -36- *** FOR PUBLICATION *** a litigate the relevant issues." Pele Defer 73 Haw. at 600, 837 P.2d at 1261 (citations omitted) . In this case, the trial court ultimately determined that Ewa Marina did not collaterally estop the plaintiffs’ clains in this case because the “issue of whether the State has the power to gell ceded lands . . . was not ‘essential’ to the final judgment in Bva Marina, which merely decided whether the BLNR could issue @ permit to dredge submerged ceded lands." (Emphases in original.) Curiously, the trial court also found that “the issue of whether the State could sell or dispose of ceded lands for public purposes was actually litigated.” However, the trial court, after taking judicial notice of the files in the awa Maxina case, seemingly concluded to the contrary, i.e., that the plaintiffs in the instant case -- against whom collateral coppel is asserted -- did not have a **full and fair opportunity’ in Ewa Marina to litigate” the State’s authority to alienate ceded lands from the public lands trust. Neverthe the trial court app ‘3 to have correctly determined that two of the elements of collateral estoppel were met in this case, to wit: (1) there was a final judgment on the merits in the Ewa Marina c ; and (2) the individual plaintiffs are privies of OHA for the purposes of collateral estoppel. However, it is apparent that the other two elements of collateral estoppel are not met here. First, the issue decided in Ewa Marina -- ‘whether the issuance of the CDUA permit [was] a proper o37- *** FOR PUBLICATION *** disposition of ceded lands,” Bwa Marina, slip op. at 22 (footnote omitted), -- is not identical to the issue raised by the plaintiffs in this case, i.e., whether the State, as trustee, should be enjoined from alienating ceded lands from the public lands trust until such tines as the claims of the native Hawaiian People to the ceded lands are resolved. Second, the issue whether such an injunction should be issued wae not essential to the final judgment in Ewa Marina inasmuch as this court in Ewa Marina needed to determine only whether the state violated its fiduciary duties by issuing the CDUA permit. Accordingly, we hold that the trial court correctly determined that Ewa Marina did not collaterally estop the plaintiffs’ claims in this case. We now turn to the plaintiffs’ contention on appeal as they relate to (1) the Leiali'i parcel and (2) the ceded lands in general. We then examine the political question doctrine and the plaintiffs’ request for injunctive relief, ©. The Leiali‘i Parcel Sovereign Immunity ‘The trial court determined that the plaintiffs’ claims with regard to the Leiali‘{ parcel were barred by sovereign inmunity because title to the Leiali'i parcel had already been transferred to the HFDC. The trial court reasoned that, in order to return the Leiali'i parcel to the public lands trust, it would be required “to ‘turn back the clock and examine actions already taken by the State.’* Thus, the trial court concluded: -38- *** FOR PUBLICATION *** oo ‘The Leali'{ [aie] (parcel is] no longer in the {plublic Tijande [elrust, Although the [pllaintitfe argue that the (perce! was) merely transferred to another State entity and that sovereign immunity therefore does not apply, the facts Show that the state of Havai'i received payment for the Efansfer of this parcel) to the HFDC. (HRS §] 172-2 Specifically exenpte from the definition of public land ihsse lance to which the HDC holds title in its corporate Enpacity. To return the (parcel) at Leals'i (sic) to the iphubliz lands (e]ruse, the DIR would have to expend seneye from che State treamury. Moreover, the HFDC has Tirerdy epent millions of dollars improving those properties Aecordingly, thie court cannot compel HPDC to return ‘the [parcel] at Leaii' [sie] to the (plublic (lands Telruet without directly affecting the state treasury, Pursuant to Pele Defense Fund v.aty, (73 Haw, $78, 637 piod 1247 (1992);1 [ehe pliaineifte’ request for injunctive Pollet «with respect to Leall'i (sic) is, therefore, Barred by sovereign immunity. on appeal, the plaintiffs argue that the trial court erred in concluding that their claim with regard to the Leiali‘t parcel was barred by the doctrine of sovereign immunity. specifically, the plaintiffs take issue with the trial court’s reliance on Pele Defense Fund. The plaintiffs assert that their claim regarding the Leiali‘i parcel was not barred by sovereign immunity because the claim is for prospective injunctive relief. Additionally, the OHA plaintiffs contend that: (1) the requested injunction would not directly affect the State treasury inasmuch e the transfer “from DLNR to HFDC was a paper transaction shifting title from one State agency to another for which DLNR received a mere $1[.00]"; and (2) the “dispute over the Leiali‘i [parcel] involves governmental agencie: rather than private parties." Consequently, the OHA plaintiffs argue that the case at bar is distinguishable from Pele Defense Fund. ‘The defendants, on the other hand, believe -- as did the trial court -- that “the State has already transferred the -39- *** FOR PUBLICATION *** Leiali‘i [parcel] to HFDC" and, therefore, to return the parcel to the public lands trust, "DLNR would have to expend moneys from the State treasury." The defendants, therefore, maintain that the trial court correctly determined that Pele Defense Fund mandates the conclusion that the plaintiffe’ claim is barred by sovereign immunity. Moreover, the defendants argue that the exception to sovereign immunity recognized in Pele Defense Eund -- “for ‘the limited purpose of enjoining state official breach of trust by disposal of trust assets in violation of the Hawai'i constitutional and statutory provisions governing the public land trust'* -- ie inapplicable in this case “because the Admission Act and state constitutional and etatutory provisions explicitly authorize the State to sell ceded lands.” The doctrine of sovereign immunity dictates that the State cannot be sued without its consent or waiver of its inmunity in matters “iovolving the enforcenent of contracte, treasury Liability for tort, and the adjudication of interest in property which tas become unsullied by tort into the boson of government." Hovever, govereign iaminity maynot be invoked ay a defense by state officisla aha ackion Lf attacked aa beina unconstitutionai, wer vill sqvereian inunity par suits to enioin state officials trom siglating state statutes Bele Defense Fund, 73 Haw. at 607, 637 P.2d at 1265 (emphasis added) (internal brackets, ellipsis, and citations omitted) (format altered). Additionally, this court has adopted the rule from EX parte Young, 209 U.S. 123 (1908), which makes an important distinction between prospective and retrospective relief. Id. at 609, 637 P.2d at 1266. -40- *** FOR PUBLICATION *** ed by EXemuxy, However, relief that is tantamount to an avara of Ganages for a past’ violation of law, even though styled as something else, is barred by sovereign immunity. stantial ane!ia Id. at 609-10, 837 P.2d at 1266 (emphasis added) (citations, ellipsis, footnote, and internal quotation marks omitted). The burden is on the State to prove “with specific facts that the effect on the State treasury will be directly, substantially, and quantifiably impacted." QHA II, 110 Hawai'i at 357, 133 P.3d at 786 (footnote omitted) . Pele Defense Pund involved a claim brought by a non- profit corporation comprised of native Hawaiian beneficiaries of the section 5(f) Admission Act trust, challenging the exchange of ceded land in Puna on the island of Hawai'i for privately owned lands. 73 Haw, at 584-05, 837 P.2d at 1253. The plaintiff prayed for, inter alia, injunctive relief to restore the Puna parcel to the public lands trust, arguing that the transfer constituted a breach of the trust created under section S(f) and article XII, section 4 of the Hawai'i Constitution. Id. This court held that, although the plaintiff's claim was couched as a claim for prospective injunctive relief, its “request that the trust status of the exchanged lands be restored by means of a constructive trust [was] essentially equivalent to a nullification of the exchange and the return of the exchanged lands to the trust res." Id, at 611, 837 P.2d at 1267 (internal quotation marks omitted). This court, therefore, concluded that -a1- *** FORPUBLICATION *** the "effect on the state treasury would be direct and unavoidable, rather than ancillary, because imposing a constructive trust on lands [then privately owned] would require . . . the State to compensate [the purchaser] for its property." Id. at 611, 837 P.2d at 1267 (citations omitted) . Consequently, we held that the plaintiff's “requested relief [was], in effect, a request for compensation for the past actions of the [State] and was, accordingly, barred by sovereign immunity. Id. Subsequent cases decided by this court have reaffirmed the continued viability of the analysis articulated in Bele Defense Fund. See, £.g., OHA II, 110 Hawai'i at 356-57, 133 P.3d at 785-86 (holding that, under Pele Defense Fund, plaintiffs’ claims alleging a breach of the State's fiduciary duties were barred by sovereign immunity because the plaintiffs requested relief -- a share of revenues that the State had collected from the ceded lands trust -- was essentially a request for past monetary damages, and, therefore, the relief requested was “retrospective"); Bush v, Watson, 61 Hawai'i 474, 481-82, 918 P.2d 1130, 1137-38 (1996) (holding that claims by native Hawaiian homestead lessees, challenging the validity of third arty agreements (TPAs) between other le! and non-Hawaiian farmers ae violating the Hawaiian Homes Commission Act, were not barred by sovereign immunity because they sought declaratory and injunctive relief that would void exiating TPAs and enjoin the -42- *** FOR PUBLICATION OO Hawaiian Homes Commission from approving future TPAs); Aged Hawaiians v. Hawaiian Homes Comm'n, 78 Hawai'i 192, 208 n.26, 851 P.2d 279, 295 n.26 (1995) (noting that, with respect to clains against state officials, claimants cannot recover money damages or the equivalent for past violations of law; nevertheless, relief that is prospective in nature may be allowed regardless of the state's sovereign immunity) . Most recently, this court affirmed the Pele Defense Fund analysis in Kaholchanchano v. State, 114 Hawai'i 302, 162 P.3d 696 (2007). Kaho'chanohano involved a class action lawsuit brought by members of the Employees’ Retirement System of the State of Hawai'i (ERS), the State of Hawai'i Organization of Police Officers, and the trustees of BRS (hereinafter, the plaintiffs] against the State alleging a breach of trust. Id. at 310, 162 P,3d at 704, The plaintiffs sought declaratory and injunctive relief based on a challenge to a statute that authorized the diversion of $346.9 million from the ERS fund, which the plaintiffs alleged violated the state's constitutional and contractual obligations to ERS menbers. Id, at 315, 162 P.3d at 709, This court determined that, inasmuch as the State had not expressly waived sovereign inmunity and the plaintiffs did not claim money danage: sthe relevant inquiry [was] whether the relief sought for a past violation of law [was] ‘tantamount to an award of damages’ or would merely have an ‘ancillary’ effect on the state treasury." Id, at 337, 162 P.3d at 731 (citation and <43- *** FOR PUBLICATION *** and other internal quotation marks omitted). ultimately, this court concluded that, by granting the plaintiffs’ requested relief, the effect on the state treasury, if any, would be only vancillary" inasmuch as the state would be prohibited from any future “skinming" from the ERS fund. Jd, Accordingly, this court held that the plaintiffs’ clains were not barred by sovereign immunity. Id, at 337-38, 162 P.3d at 731-32. In this case, the plaintiffe seek to enjoin the actions of state executive officials from transferring the Leialii parcel because they believe such transfer would further diminish the corpus of the public lands trust -- in violation of the State’s constitutional and statutory fiduciary duties -- before their unrelinguished claims to the ceded lands could be resolved. ‘As in Kaho'chanchano, the State, here, has not expressly waived sovereign inmunity, and the plaintiffs do not claim money Gamages. Although the plaintiffs characterize their claim with respect to the teaili'i parcel as being one for prospective injunctive relief, ise., enjoining the transfer of the Leiali‘i parcel, the parcel was, in fact, transferred from DLNR to HFDC on the eame day the plaintiffs filed suit. Accordingly, in this case, as in Kaho'ohanchano, “the relevant inguiry is whether We note that this court'# conclusion in xaho! As consiseent with Bush. wherein we “decline (@) ‘to adopt the federal courts’ narrow view Chat a claim for relief based on past iiiegal action ie necesearsiy, Sretrospective[,|'" holding instead that ene crucial inguisy under our sovereign immunity principies is whether the relief sought for s past violation of law ie" ‘tantamount to an avard of damages’ oF would merely have an ‘ancillary’ effect on the state treasury. Bush, 81 Hawail at 462 n.3, 318 Diag ae 1338.5. (eitations omitted) -46- *** FOR PUBLICATION *** a the relief sought for a past violation of law(, i.e., the transfer of property,] is ‘tantamount to an award of damages’ oF would merely have an ‘ancillary’ effect on the state treasury.” Kaho'chanohano, 114 Hawai'i at 337, 162 P.3d at 731 (some internal quotation marks and citation omitted). unlike Pele Defense Fund, in which ceded lands were exchanged for privately owned lands, the Leiali‘i parcel was transferred from one state agency to another, i.e., from DLNR to HPDC. Moreover, the consideration of $1.00 was also paid from one state agency to another. In other words, the return of the property and purchase price between both state agencies effectively changes nothing. Both the parcel and the $1.00 would remain within the control of the State, To the contrary, because the lands at iseue in Bele Defense Fund had been transferred to a private third-party, thie court concluded that the State would have to compensate the private third-party for the return of the property in the public lands trust. 73 Haw. at 611, 837 P.2d at 1267, In that regard, Pele Defense Fund is distinguishable from the instant case because the Leiali‘i parcel would remain within the control of the State. Returning the parcel to the public lands trust would require only that the HFDC transfer title back to DIN and that DLNR pay only $1.00 for such transfer, As such, the effect on the State treasury, if any, would be only ancillary. -45- *** FOR PUBLICATION *** However, in concluding that sovereign inmunity barred the plaintiffs’ claims with regard to the Leiali‘i parcel, the trial court additionally relied upon the fact that, prior to the transfer of the Leiali'i parcel, HFDC had spent $31 million developing infrastructure on the property. In so doing, the trial court did not provide any explanation as to how the expenditure of $31 million prior to the plaintiffe’ filing of the present lawsuit resulted in a “direct” ae opposed to ‘ancillary effect on the state treasury. We further observe that the parties do not any present argument on this issue. Although we recognize that $31 million dollars is a significant sum of money, that fact alone is insufficient to support a conclusion that such past expenditure constitutes a “direct” future effect on the state treasury. Indeed, as previously stated, sovereign immunity does not bar a claim for Prospective injunctive relief “even though accompanied by a substantial ancillary effect on the state treasury." pele Defense Fund, 73 Haw. (internal quotation marks, citation, and footnote omitted). In at 609, 837 P.2d at 1266 (emphasis added) the casé at bar, the plaintiffs are not asking that the $21 million be returned to then or even to the state treasury. Moreover, the benefit of the $31 million expenditure by HPDC on infrastructure remains with the State. Thus the plaintiffs’ requested relief -- i.e., an injunction -- is not “tantamount to an award of damages for a past violation of law.” Id. at 609-10, -46- *** FOR PUBLICATION *** a 837 P.2d at 1266 (internal quotation marks, citation, and ellipsis omitted). As such, the effect of the expenditure of $31 million on the state treasury is “ancillary* -- albeit a substantial one. We, therefore, hold that the plaintiffs’ claim for injunctive relief with regard to the Leiali‘i parcel is not barred by sovereign immunity, Accordingly, we also hold that the trial court erred in determining otherwise: 2. Waiver and Estoppel ‘he plaintiffs argue that the trial court erred in determining that the defenses of waiver and estoppel barred the plaintiffe’ request for injunctive relief with respect to the Leiali‘i parcel. Because waiver and estoppel are distinct doctrines, we analyze them separately below. a. waiver ‘The trial court concluded that the [pllaineitts, by thelr actions and inactions during the Lig years beeween 1987 and 1994. = waived any right they nay have had to contest the sale of [the teialit parcel] to HFDC a5 illegal no [individual (p)aineifes argue that hey and their counsel relied on Congress's 1993 apology Resolution an the Legis) ‘het 329 of 1993 a8 central bases to Seek an injunction in the fall of 1994 on the [Sodas pending resolution of the Hawaiians’ claim to Uatetantp of the ceded lands. Mr. Meheula’ discussions QIEE the” ofa Board aid cause OHA Co insist in the fal] of SG5s that a disclaimer be placed in the HFDC agreenente Reva practical matter, hovever, neither OHA nor the (individual, Ipllaistltts objected to the sale of the {deisis parce:) uatil the £211 of 1994. Te any event, ISH uh piiaineiite aid not consider challenging the Skilers power to sell ceded lands until after the Apology Resolution wae adopted in 1993, OHA's continuing to Resoeiste for sarket value after the Apology Resolution wa Befoea is eiso tconduct from which an intention to waive may Peasonably be inferred.” (The pllaintiffe’ failure to Effect tothe development plan, which included market hore Sekore the Luc and Legislature in testimony relating to Act -41- *** FOR PUBLICATION *** 318 is “wholly inconsistent with any diseatiafaction’ with the development pian, alo suggesting waiver of any right to challenge thes. "(Goo va Hee Fat, 34 Hav. 123, 129° (198), Goo. v. Gao, 36 Haw. 530 sony Moreover, HFDC and the state were prejudiced by their reliance on Ipilaintitta’ acquiescence in the development plan to sell che Leiali'i parcel]. he testified to by the Project managers for both uealii [sie] and La'Vopua, there (tere no objections from OHA ae to the State's power to sell Public trust lands for those projects until Novenber 1994. By that tine, however, $31 million had already Deen invested in beali'i Tele] (Footnotes omitted.) The plaintiffs argue that they did not waive their claim with regard to the Leiali'i parcel. The OHA plaintiffs’ maintain that, [elfter the passage of the Apology Resolution, and as the FULL import Of the congr [glovernment’ and [pubis ‘of Haval'l oF their sovereign government” and that “the indigenous Hawaiian people never Sivectly relinguished their claine to eheir inherent sovereignty as a people or over their national lands to the United Staten{l" becane evident, the OA Trustees took sppropriate action to assure that che claim to the “national As indicated by the trial court, the individual plaintiffs posit that, “la}ithough OHA did not earlier object to the transfer of ceded lands for the ultimate sale to honeowners in the Leiali‘i project, the 1993 legislation [(ise., the Apology Resolution, as well as, Acts 359 and 329, discussed gupra)] and Mr. Meheula’s discussions with the OHA Board in [September 1994] were new events that justified their objection in [September 1994].” Relying on the ruling and rationale of the trial court, the defendants maintain that the plaintiffe waived their clains regarding the Leiali'i parcel because the “[p]laintiffs’ failure -48- *** FOR PUBLICATION *** Oe to object to the development plan at the LUC and before the hegislature in testimony relating to Act 318 [(setting forth a rormila to compensate OHA for the ‘villages of Leiali'i, Maui and villages of La'i'opua, Hawai'i')] is ‘wholly inconsistent with any Gissatisfaction’ with the development plan. . . andl, therefore,] clearly waived any right to challenge the plan." The defendants further maintain that, *[elven if plaintiffs did not think to challenge the State’s power to sell [cleded lands until after the Apology Resolution, OHA’s continuing to negotiate for smarket value’ after the Apology Resolution was passed is clearly ‘conduct from which an intention to waive may reasonably be inferred.’* ‘This court has defined waiver as "an intentional relinguishment of a known right, a voluntary relinquishment of rights, and the relinguishment or refueal to use a right." Coon City & County of Honolulu, 98 Hawai'i 233, 261, 47 P.34 348, 376 (2002) (emphasis added) (citation omitted). ‘To constitute a yaiver, there must have existed a right Tiained co have been waived and the waiving party gust have had kum adoe—apua) ok cone te ey tater namie the Sttrich whether a valid waiver existe is genersily © eseion of fact, “when the facts are undisputed it may become a question of law." Hawaiian Hones Comm'n v. Bush, SSuaw. 201, 266, (3955) (citations omitted); eg alea Steuart v Spalding, 23 Haw. 502, 527 (1916) ("The question SENSHar Ts usually a mixed one of law and fact but where ite undisputed and are susceptible of but one Tnference it becones one of law for the court." (eltations omiteed-)) Id. at 261-62, 47 P.3d at 376-77 (some citations and original ellipsis omitted) (emphasis added). Furthermore, -49- *** FOR PUBLICATION *** must nal. Such intention may be Indicated by language or conduct, nay be either express or implied but does not necessarily’ imply that one hat been misled to his prejudice or into an altered position. waiver Gepends upon the intention of the party who ie charged with the waiver. Te say be proven by an expre: Geclaration Of the party charged with the waiver, Tt may also be proved by the existence of acts or language so inconsistent with the purpose of the person charged ¢o stand upon his rights as to leave no opportunity fora reasonable inference co the contrary. v. Lalakes, 35 Haw. 213, 218-19 (2939) (emphasis added) (internal quotation marks and citations omitted). In this case, the record indicates that the first tine that OHA had knowledge that DLNR intended to alienate the Leiali'i parcel from the public lands trust for the purposes of residential development was in December 1969 when HFDC filed a petition with the LUC to reclassify the Leials‘i parcel from agriculture to urban use. It is undisputed that OHA did not object to the transfer of the Leiali'i parcel and participated in negotiations with HFDC regarding the parcel’s fair market value, pursuant to Act 318, As previously stated, it was not until the adoption of the Apology Resolution that OHA requested the @isclainer that its acceptance of funds would not affect any further claim the native Hawaiian people may have to the Leiai's parcel. hen HFDC declined to honor their request, the plaintiffs filed suit. In support of their position that they did not waive their claim with regard to the Leiali'i parcel, the plaintitts essentially maintain that the Apology Resolution gave rise to their breach of trust claim. Pointing to language in the Apology -50- #** FOR PUBLICATION *** a Resolution that "the indigenous Hawaiian people never directly relinguished their claims to their inherent sovereignty as a people or over their national lands to the United states,” ‘Apology Resolution, Pub. L. No. 103-250, 107 Stat. 1510, the plaintiffs submit that title to the ceded lands is now clouded. Having held that the Apology Resolution and related state legislation give rise to a fiduciary duty by the State, as trustee, to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinguished clains of the native Hawaiians have been resolved, dt necessarily follows that it was not until at least Novenber 23, 1993, when the Apology Resolution was signed into law by President Clinton, that the plaintiffs “had knowledge, actual or constructive, of the existence of . . . a right [clained to have been waived) at the time of the purported waiver." Coon, 98 Hawai'i at 261, 47 P.3d at 376 (citation omitted). Consequently, we cannot say that the plaintiffs’ purported waiver was “intentional,” expressly or impliedly. Hewahewa, 35 Haw. at 218. Accordingly, we hold that the trial court’s conclusion that OHA’ actions between 1987 and 1994 constituted a waiver of the plaintiffs’ claims w clearly erroneous and that, therefore, the trial court erred in determining that the plaintiffs waived their claim for injunctive relief with regard to the Leiali‘i parcel 2 the trial court also based its holding on the fact that the Getendante expended over $21 million dollars on improvenents to the Leieli't parcel prior ro the tranefer from DLNR to HFDC. However, the question on (cont ined. . -51- *** FOR PUBLICATION *** b. estoppel ‘The trial court ruled that, *[fJor the same reasons that (the p]laintiffs waived any challenge to the legality of the sales of Leali‘i [sic] lands, [the p]laintiffe are estopped from making that challenge." Specifically, the trial court found that, applying equitable estoppel and quasi estoppel principles to the cage at hand, during the years of negotiationa. and Planning fer Leal [eiel before [the pllaintitts flea this lawsuit, [che pllaintisfe did not suggest that they would file a'lawouit challenging the right ro sell the Geiais's parcel] to Hoc ana in urn to third parties for thelr hones. During the ‘The state epent substantial ing. [the parcel] before Noveber 1984 when (the pJiaintiffs first filed euit By their action (or inaction with respect £0 the (individual [pl laineifes) and conduct {the plaintiffs caused the HFDC to believe chat no one would Challenge its acquisition of the [Lelali't parcel) as 1osg fas OHA and Dine received fair monetary compensation for che Tends. “Ite pliaineites’ acquiescence in the cevelopment of Yeali'i [sic] ‘and HPOC'® expenditure of funds: for infrastructure, and OlA's active participation in negotiations for an appraised value for the ceded lands Tnduced the State to continue moving forward with the housing developeent. The State obtained neces! changes, eatered into agreements with develope! agreements vies county officials and pent over 431 million for infrastructure at Lealli (sic) alone. the state significantly altered ita position because of the statements And conduct Of OHA, ae vell ag the inaction of the [individual [pliaintitfs. Te p)iaineifts are, therefore, algo estopped from challenging the State's sale of public trust lands at Leali't (ele). *(. seontinued) waiver is “strictly whether che party charged with waiver intended to waive @ Keown claim, lswaewa, 35 Kaw, at 218-19, pat whether the party seeking to prove waiver wag prejudiced, as was determined by the trial coure, Ae such, the trial court's! finding that, because OHA aid not object to the transfer of the Leialit parcel until 1994," #FDC and the State were prejudiced by ehelr Fellance on the plaintiffs acquiescence in the project does not apply te an analysis of waiver -52- *** FOR PUBLICATION *** a Te de true, as argued by the OHA [p]lainestfe, that the doctrine of equitable estoppel cannot be invoked against W"Sovermmental agency euch as OKA in the absence of overt Gelrinenral reliance and "manifest injustice.” The Law ‘eccgnizes that governmental bodies must be able to change ERSTE"EIGG. Un‘ eSee circumstances. Thus, a mere change of SREs' by the government does not iaveke estoppel unless the Seber party fad detrimentally relied upon the agency’ ceeteP petition to such an extent chat it would constitute SEanieeee injustice" to fail to invoke and apply the Jocttiae, tn this case, however, based on the facts above, Ske requisite showings of extensive detrimental reliance by Gnd manifest injustice £0 the (dlefendants have been antiafied to invoke equitable estoppel against the OHA RINRifte:° Thust the doctrine of estoppel prohibits both rete of [piiaintifts from seeking injunctive relief with ect to the sale of (the ueiall'i parcel) (internal footnotes omitted.) (Format altered.) ‘The OWA plaintiffs argue that the trial court erred in concluding that the doctrine of estoppel barred the plaintiffe clains because it is ‘manifestly unjust to [nJative Hawaiians to allow alienation of [cleded [1]ands -- their national lands -- prior to a final resolution of the [nJative Hawaiian land claim.” Additionally, the OHA plaintiffs argue that the application of the doctrine of equitable estoppel against the government is not favored, and, furthermore, “there can be no suggestion here that OHA wilfully misled the HFDC in its earlier position on the Leiali'i [parcel] or acted in bad faith.” The individual plaintiffs appear to contend that estoppel is not applicable in this case because it is an equitable defense, which cannot be raised against the plaintiffs because “the 1993 Legislation obligated the state to seek instructions from the [court before selling ceded lands without prompting by [the p]laintitts.” -53- *** FOR PUBLICATION *** ‘The defendants insist that the trial court correctly determined that the plaintiffs were estopped from challenging the transfer of the Leiali‘i parcel because the “unchallenged findings of facts show that HFDC spent more than $31 million at Leiali'i over a seven-year period in reliance on OHA’s failure to object to the project." Accordingly, the defendants assert that “(e]hese facts squarely raise the defense of equitable estoppel [.]” “The theory of equitable estoppel requires proof that one person wilfully caused another person to erroneously believe a certain state of things, and that person reasonably relied on this erroneous belief to his or her detriment.” potter v. Hawai'i Newspaper Agency, 89 Hawai'i 411, 419, 974 P.2d 51, 59 (2999) (citation omitted). °A species of equitable estoppel, the Principle of quasi estoppel, precludes a party from asserting to another's disadvantage, a right inconsistent with a position Previously taken." Id, at 420, 974 P.2d at 60 (internal brackets and citation omitted) . As the OHA plaintiffs correctly point out, *[t)he application of the doctrine of equitable estoppel againet the government is not favored." Turner v, Chandler, 87 Hawai'i 330, 333, 995 P.2d 1062, 1065 (App. 1998) (citations omitted) . However, this court has also stated that the doctrine “is fully applicable against the governnent if it ie necessary to invoke it to prevent manifest injustice.” state pavashi v. -54- *** FOR PUBLICATION *** a Zimring, 58 Haw. 106, 126, $66 P.2d 725, 737 (2977) (internal quotation marks and citation omitted). As previously discussed, it was not until the Apology Resolution was signed into law on November 23, 1993 that the plaintiffs’ claim regarding the State's explicit fiduciary duty to preserve the corpus of the public lands trust arose. As such, it was not until that time that the plaintiffs’ lawsuit could have been grounded upon such a basis. Consequently, the plaintiffs cannot be deemed to have ‘wilfully caused [the defendants] to erroneously believe a certain state of things, Potter, 69 Hawai'i at 419, 974 P.2d at 59, upon which the defendants relied to their detriment. Accordingly, we conclude that the trial court incorrectly determined that the plaintiffs were estopped fron challenging the transfer of the Leiali‘i parcel based on their pre-1993 actions and hold that the plaintiffs’ claims are not barred by the principles of equitable and quasi estoppel. We now turn to the plaintiffs’ arguments as they relate to the ceded lands in general ‘The Ceded Lands in General 2. Sovereign Immunity With regard to ceded lands in general, the trial court concluded that: -55- *** FOR PUBLICATION *** Case lay has held that sovereign immunity does not bar 4 suit for injunctive relief to prohibit state officials from acting in an illegal manners ((Citing in a footnote to Bele Defense Fund, Gupra.)] The State of Hawai'i has nos consented, ‘however, to be sued in a lawsuit contesting the validity ot its title to the ceded lands. "it is the daw in this jurisdiction that a proceeding againat property in wien the State of Hawai'l hag an interest ie a suit against the State and cannot be maintained without the consent of the state, so that the State ‘and ite interest in land are inmune fron suit." [(Citiag ina footnote to A Ld. Kaneahira, 51 Mav. 87, 80, 451 P.26 809, 811 (G963) J) "If it ie made to appear at any stage of the case that the state clains title, the court’s jurisdiction over the merite of such claim thereby is ousted under the Goctrine of sovereign immunity.” {(Citing ins footnote to 40 Haw. 92, 94, 295 rad 620, €22 (1964) ©)) claim for injunctive aad declaratory reliet would have the effect of depriving the state of control over Public lands under (HRS) ‘chapters 171 and 2018 ie the “tunctionat equivalent of a quiet title action,” and ie barred by sovereign imaunity, [(citing Ina footnore to ashe o $21 U.S. 261 (1989) -)) Looking Beyond the pleadings to examine the effect” of the suit and “its impact on these special sovereignty interes {of the state)," sovereign immunity bare (pi laincifte’ clains to the extent they seck relief based on an allege [sic] cloud on the State's titie to ceded lands. Where the "requested injunctive relief would bar the State's principal, officers from exercising their governmental powers ad authority over the disputed lands and watera,* and “would Giminish, even extinguish, che state's control over 2 vast Feach of land and vaters long deened by the State to be an integral part of its territory,” sovereign immunity applies. (iciting ina footnote to Cousr d'Alene) (Internal footnotes omitted.) ‘The plaintiffs take issue with the trial court’s reliance on Couer d'Alene. Specifically, the plaintiffs challenge the trial court's determination that their claims with regard to the sale of ceded lands in general “were the functional equivalent of a quiet title action’® and, therefore, barred by sovereign immunity inasmuch as “*[iJt ie the law in this jurisdiction that @ proceeding against property in which the An action to quiet titie is defined as an action brought *by any person against another person who claina, oF who may claim adversely to the Plaintétf, an estate or interest in real property, for the purpose of Getermining the adverse claim." Wks} 669 1a) (1995) -56- *** FOR PUBLICATION *** a State of Hawai'i has an interest in is a suit against the state and cannot be maintained without the consent of the state(.]'* on appeal, the OHA plaintiffs contend that they are not seeking ownership of property from this court, but “only an order prohibiting the transfer of [cleded (lands pending the resolution of [nJative Hawaiian claims." (Emphasis in original.) As such, the OHA plaintiffs argue that the trial court’s reliance on Cousr d'Alene, discussed infra, was error. The OHA plaintiffs submit that the trial court should have, instead, been guided by Mille Lace Band of Chippewa Indians v. Minnesota, 124 F.34 904 (eth cir. 1997), aff'd, 526 U.S, 172 (1999), discussed infra. ‘The individual plaintiffs similarly maintain that they "do not seek an ownership determination or even a declaration that they are entitled to the beneficial use and/or occupancy of the ceded lands." The defendants, however, contend that the trial court correctly relied on Couer d'Alene because, as in this case, *'the requested injunctive relief would bar the state's principal officers from exercising their governmental powers and authority over the disputed lands and waters,’ and ‘would diminish, even extinguish the State's control over a vast reach of lands. . . long dened by the State to be an integral part of its territory.’* (Citing Couer d'Alene, 523 U.S, at 262). o57- *** FOR PUBLICATION *** In Couer d’Alene, the sole issue before the Court was whether the federally recognized Couer d'Alene Tribe’s (the Tribe) suit against the State of Idaho, seeking “the beneficial interest, subject to the trusteeship of the United States, in the beds and banks of all navigable watercourses and waters (the ‘subnerged lands’) within the original boundaries of the Coeur @’Alene Reservation,” was barred by sovereign immunity. 521 U.S. at 264-65. The Tribe styled its suit as a claim for declaratory and injunctive relief, “alleging an ongoing violation of its property rights in contravention of federal law and [seeking] Prospective injunctive relief." Id. at 266, 281. The Court recognized that “[aJn allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young (exception) . [*] However, this case is unusual in that the Tribe's suit is the functional equivalent of a quiet title action which implicates special sovereignty interests.” Id, at 261. The Court, in its principal decision, determined that the Tribe’s suit was the as previously indicated, this court, in Pele Defenge Fund, adopted the rule expresses in x Parte Young, which differentiated between prospective and retrospective relief, 73 Haw. at 609, 637 P.24 at 1266.” Accordingly. it Ss the law in this state that, “[ilf the relief aought against « state official is prospective in nature, then the relief may be allowed regardless fof the state's sovereign immunity: This ie true even though acconpasied by a Substantial ancillary effect on the state treasury.” id. (internal quotation marke and citations omitted); gee discussion suDra -58- *** FOR PUBLICATION *** a functional equivalent of a quiet title action “in that substantially all benefits of ownership and control [in the submerged lands] would shift from [Idaho] to the Tribe." Id. at 282. Moreover, the Court reasoned that the submerged lands ‘have historically been considered ‘sovereign lands[,’ and] State ownership of then has been considered an essential attribute of sovereignty.” Id. at 283 (internal quotation marks and citation omitted). The Court concluded: re is apparent, then, that[,) if the Tribe were co prevail) TaiddPerecelgn Interest in Ste lands and waters would be Affeccea ina degree fully as intrusive as almost any Scnceivaple retroactive levy upon funds in ite Treasury. Sader these particular and special circunstances, we find the ound exception inapplicable. The dignity and statue of [e HEME, Sca°eilow idaho to rely on ite Bleventh Asendment [munity aed te insist upon responding to these claims in ite own courts, which are open to hear and determine the Id, at 287-88. In a concurring opinion, Justice 0’Connor seemingly attempted to clarify the Court's decision by distinguishing Coeur @Alene from Ex parte Young. She noted that tthe Tribe does ot merely seek to possess land chat would Stheruise remain subject to state regulation, or to bring S"Tegutatory schese into coupliance with federal Yee. Rather, the Tribe seeks to eliminate altogether the Binte's regulatory power over the submerged lands at Senue _- to establieh not oaly that the state has no right iSTposaces the property, but also that the property i# not Sichin Idaho's sovereign jurisdiction at all Id. at 289 (O'Connor, J., concurring). As previously stated, the OHA plaintiffs suggest that the trial court erred in applying the Couer d/Alene analysis and should look instead to the Eighth Circuit's opinion in Mille Lacs. In Mille Lace, the Mille Lacs Band of Chippewa Indians -59- *** FOR PUBLICATION *** (the Band), amongst others, brought an action for injunctive and declaratory relief, seeking to enforce ite alleged treaty rights to hunt, fish, and gather on state and private lands free of state regulation. 124 F.3d at 914, The Eighth Circuit held that the Band’s claims were not barred by sovereign immunity, reasoning, inter alia, that the Bands’ claims “{sought] prospective injunctive relief against state officials in their official capacities for continuing violations of the Bands’ federal treaty rights. As such, they fall squarely within the Ex parte Young exception to the [sovereign immunity doctrine] .* Id. ‘The court further noted that its holding was supported by the Coeur d'Alene Court's concurring opinion, which observed that “{a] Young suit is available where a plaintiff alleges an ongoing violation of federal law, and where the relief sought is prospective rather than retrospective." Id, (quoting Couer diAlene, 521 U.S. at 294 (0’Connor, J., concurring)) (internal quotation marks omitted) . In the present cai the plaintiffs, unlike the Couer aiAlene plaintiffs, do not seek a determination from this court that would shift “the benefits of ownership and control [of the ceded lands} from the state to [thenselves].”" Cover d’Alene, 521 U.S, at 282. Rather, they seek only to enjoin the defendants from alienating ceded lands. Based on Mille Lacs and Justice 0’Connor’s concurrence in Couer d’Alene, a claim seeking injunctive relief with regard -60- **% FOR PUBLICATION *** a to property rights may be maintained, if it falls within the Young exception, i.e., allowing only prospective injunctive relief. Here, as the plaintiffs have repeatedly made clear, they are not asking this court to return the ceded lands to the possession of the plaintiffs; they seek only an injunction barring the future alienation by way of sale or transfer -- of ceded lands until their unrelinguished claims to those lands are resolved via the reconciliation process contemplated by the Apology Resolution and related state legislation. As such, the plaintiffs’ requested relief is clearly prospective in nature and, therefore, not barred by sovereign immunity under the Young exception. Based on the foregoing discussion, we hold that the plaintiffs’ claims with regard to the sale or transfer of the ceded lands in general are not barred by sovereign inmunity. Accordingly, we also hold that the trial court incorrectly determined that sovereign immunity barred the plaintifte’ claims.» ® zn addition to the arguments stated above, the individual plaintitte, in theit opening brief, argue that the state waived sovereign Enunicy usder the *Netive Hawaiian Trusts Judicial Relief Act" contained in Has chapter 673° (Supp. 2006). However, in a previous motion filed with the Mecuie court, the individual plaineités argued that "{eJhapter 673, Native fawalian Trusts Judicial Relief Act, does not permit [native Hawaiians to sue The gtace for return of ceded lande.* inasmuch ae the individual plaintifte SGuit inva prior pleading thst HRS chapter 673 does not apply in thi Situation and there ie no other mention of thie argunent in the proceedings Before the erial court, the plaintiffs have waived this argunent. ~61- *** FOR PUBLICATION *** SSS 2. Ripenes: The trial court, in ruling that the plaintiffe’ clains with regard to the ceded lands in general were also barred by the ripeness doctrine, stated: With respect to ripeness,” Pele Defense fund makes clear Phat beneficiaries Of the ceded lands trust have standing to bring suit to enjoin disposition of ceded lands that would constitute breaches of trust. io evidence wan presented. however, of any proposed sales of codes lands other than at Lealt't ‘{eicl. In fact the evidence suggests that the state has been ‘following a self {-]inposed moratorium on the sal Of additional ceded lands. ("| Proposed sales could tn explaining the t-imposed moratorium,” the trial court stated ‘The Adsinietrator for the Lande Division of the DLNR ((i.e., Michael Wilson)) wrote [a senorandual to {the} then Chait of DLW, stating that ‘a moratorium’ on the sale of ceded lange was in effect {] and that “the current moratorium ie Saeed of fhe concern that the sale of ceded lands dininiches the corpus of the public lands and thereby diminished the potential return to OHA [[hereinafter, the Hilson Menorandunl." At trial, Gilbert Colona-Agaran, chair of the SLNR, testified regarding the Wilson Memorandum a follows: © By oma Plaineieee: 80, vere you working for Michael Wilson at the time, deputy Girector? A: Tuy’ Coloma-agaran] : In april ‘95, yes. Are you familiar with that menorasdin? Ri Tivelseen ie. @: And are you familiar with a moratorium that (then-|pirector Wilson refers to? A: Yee! (continued...) -62- *** FOR PUBLICATION ** a constitute breaches of trust, but... not abi sales of Seded lande would violate the ceded lands trust (Footnotes omitted.) ‘the OHA plaintiffs argue that the trial court erred in determining that their claims were not ripe because “the court need not resolve the breach of trust issue in order to grant injunctive relief." Additionally, the OHA plaintiffs assert thet the (trial) court's ruling places [the plaintiffs] on the horns ofa dilemma, [The plaintiffs] it seems, filed both fos early and too iate. [They] waited too long on the Eelalii barcet and not long enough on the moratorium. | (the Pleineiéfe) must wait until che state takes preliminary Bigg to enjoin the sale of (cleded (1Jands, but because the Sete took preliminary steps in the Leielivt transfer, SGunctive seliet is Barres because it would ‘turn back the egck and exanine actions already taken by the State.’ ‘The defendants jert that the trial court correctly determined that the plaintiffs’ claine were barred by the doctrine of ripeness because the plaintiffs “preemptive [2y] challenge” the “sale of any and all [cleded [1lands." The defendants reason that “any particular sale of [cleded [1] ands could present @ conflict of interest or a breach of fiduciary auty (for example, if the State proposed to sell for less than fair market value to a state official for hie or her private (continued) eet Rnd could you -- could you tell us what that was ‘bout. ks Teguess shortly after we got there Michael decided Ende given the controversy over the sale of ceded Tends chat we would try not co sell but that if ve Aanted to nove Forward sone transaction, we would. Sor if there were basically sales were (sic) already SSbraves by the oard before we got there we couldn't. TP properties was (eic] necessary because of some s you now, we take it case by case. -63- *** FOR PUBLICATION *** eee benefit) [,]* but that “this (clourt should decline to speculate as to such future events." Additionally, the defendants argue that "the trial court rightly declined to enter relief based on the assumption that the coordinate and co-equal executive and legislative branches will engage in bad faith and wrongful conduct in the future. This [court should also decline to do We have stated that ‘ripeness is peculiarly a question of timing, and a ruling that an issue is not ripe ordinarily indicates the court has concluded a later decision may be more apt or that the matter is not yet appropriate for adjudication. Sounty of Kaua'i ex rel, Nakazawa v. Baptiste, 115 Hawai'i 15, 36, 165 P.3d 916, 937 (2007) (internal quotation marks and citation omitted). Moreover, “prudential rules of judicial self-governance founded in concern about the proper -- and Properly limited -- role of courts in a democratic society, fand] considerations flowing from our coequal and coexistent system of government, dictate that we accord those charged with drafting and administering our laws a reasonable opportunity to craft and enforce them in a manner that produc a lawful resule.* gave Sunget_Beach Coa: City & County of Honolulu, 102 Hawai'i 465, 483, 78 P31, 19 (2003) (internal quotation marks, original brackets, and citation omitted). The federal courts have applied the following test, which we believe is instructive, in determining whether a particular case is ripe: -66- *** FOR PUBLICATION *** a because ripeness is peculfarly a question of timing, the Court must look at the facts as they exist today in’ Gvaluating whether the controversy before us is sufficiently Concrete to warrant our intervention. The ripeness inguiry EGtvtko pronger the fitness of the issues for judicial Secision and the hardship to the parties of withholding SE oasideracion. The fitness element requires that the SSoue be prisarily legal, need no further factual Gevelopment, and involve a final agency action. To meet the Sirasnip requirement, a party must show that withholding judicial review would result in direct and imediate AudéSnip and would entail more than possible financial loss Rice v. Cayetano, 941 F. Supp. 1529, 1538 (D. Haw. 1996) (citations and internal quotation marks omitted), rev'd on other grounds, 528 U.S. 495 (2000). With respect to the first prong of the federal test, the plaintiffs mst show that the issue regarding their entitlement to injunctive relief is fit for judicial decision because the issue is “primarily legal, need{s] no further factual development and involve(s] a final agency action." Id, (internal quotation marks and citation omitted). Here, as the plaintiffs argue, the issue is fit for judicial resolution inasmuch as they are not seeking a determination whether the native Hawaiian people are entitled to ownership of the ceded lands; what they are seeking is a determination whether an injunction is appropriate to allow for a resolution of their claims to the ceded lands without further diminishment of the trust res. There is no doubt that the issuance of an injunction involves a legal question. See, €.g., ERCP Rule 65 (2007) (governing the issuance of injunctive relief); Wahba, LIC v. USRP (Don), LLC, 106 Hawai'i 466, 106 P.34 1209 (2005) (describing injunctions ané temporary restraining orders), Moreover, the record demonstrates that -65- *** FOR PUBLICATION *** eS there is no need for further factual development inasmuch as the facts necessary to decide ripeness are currently before this court. With regard to the Leiali'i parcel, a final agency action (i.e, the transfer of the parcel from DLNR to HFDC) has been taken, and, although “final agency action” with regard to the ceded lands in general has yet to be taken, the very nature of the plaintiffs’ requested relief -- that an injunction issue to protect the corpus of the public land trust until the reconciliation efforts contemplated by the Apology Resolution and related state legislation has been completed -- dictates that a judicial decision regarding the issuance of such an injunction is appropriate. We, therefore, believe that the fitness element hi been met. With respect to the second prong of the federal test, isc., the hardship requirement, the plaintiffe must show *that withholding judicial review would reault in direct and inmediat hardship and would entail more than possible financial 10 Rice, 941 F. Supp. at 1538 (internal quotation marks and citation omitted). Here, inasmuch ae the Leiali‘{ parcel was transferred to the HFDC for purposes of developing a residential housing project, and, although the defendants have voluntarily @iscontinued development, there exists a real threat that, should the HFDC proceed with the housing development project, the parcel could be transferred by the HFDC to third parties. Moreover, as indicated by the trial court, "the State has been following a *** FOR PUBLICATION *** a self {-Jimposed moratorium on the sales of additional cede lands." Thus, by the same token, should the State decide to lift its own moratorium, there is a potential for the sale or transfer of additional ceded lands. Once the ceded lands are alienated from the public lands trust, they will be lost forever and will not be potentially available to satisfy the unrelinguished claims of native Hawaiians to the lands, as recognized and contemplated by the Apology Resolution and the related state legislation, discussed supra. Were this court to withhold consideration of the plaintiffe’ request for injunctive relief, the State would be free to alienate the ceded lands from the public lands trust. And, in so doing, the resulting hardship to the plaintiffs would be obvious the alienated lands would be lost forever -- and, as discul 4 more fully infra, the loss of the land itself entails a mich greater injury "than possible financial loss." Were we to determine that the plaintiffs’ claim for injunctive relief wi not ripe, they may be left without a remedy while the corpus of the public lands trust continues to diminish, a result surely not contemplated by the Apology Resolution and our own state legislative pronouncements in Acts 354 and 359. Moreover, were this court to grant the plaintiffs’ requested injunctive relief, it would not be over: epping sprudential rules of judicial self-governance," Save Sunset Beach coal., 102 Hawai'i at 483, 78 P.3d at 19 (original brackets omitted), because, as previously indicated, such a decision would -67- *** FORPUBLICATION *** OS not involve a determination whether the native Hawaiian people are entitled to ownership of the ceded lands; we need only address whether an injunction is appropriate to allow resolution of these claims without further diminishment of the trust res. As such, any injunctive relief granted by this court would allow Congress and/or the state legislature a “reasonable opportunity to craft and enforce,” id., relevant laws consistent with the congressional and legislative calle for reconciliation and settlement of native Hawaiian clains. Based on the foregoing discussion, we hold that the Plaintiffs’ claims -- to the extent they seek injunctive relief -- are ripe for adjudication and, accordingly, hold that the trial court erred in determining otherwise. Because the Plaintiffs’ remaining claims do not necessitate a distinction between the Leiali'i parcel and the ceded lands in general, the Following discussion encompasses both the Leiali‘i parcel and the ceded lands in general. Rolitical Question “The political question doctrine, often considered the most amorphous aspect of justiciability, holds generally that certain matters are political in nature and thus inappropriate for judicial review." Nishitani v. Baker, 62 Hawai‘ 281, 250, 921 P.24 1162, 1291 (App. 1996) (citation omitted). In deciding whether the political question doctrine should be invoked, this court, in the offs. Hawaiian Affairs ak -68- *** FOR PUBLICATION *** ee 69 Haw. 154, 737 P.2d 446 (1987), adopted the test recited by the United States Supreme Court in Baker v, Carr, 369 U.S. 186 (2962): Prominent on the surface of any case held to involve a political question is found(: (2)] a textually denocstrable Ronatiestionel commitment of the iesue toa coordinate political department; {(2)] a lack of judicially Rfecoverable and manageable standards for resolving ity {(S)) the iepocsibiiity of deciding without an initial policy determination of a kind clearly for nonjudicial Sfecreeions [lal] the impossibility of a court’s undertaking {neependent regolution without expressing lack of respect due foordinate branches of goverment; ((5)] an unusual need for unquestioning adherence co 2 political decision already tude; or [{6)] the potentiality of enbarrasement from Guiciferious pronouncements By various departments on one question Yamasaki, 69 Haw. at 170, 737 P.2d at 455 (quoting Baker, 369 U.S. at 217) (format altered). The presence of any one of these ix factors renders a ca nonjusticiable. Id, Moreover, the political question doctrine is "essentially a function of the separation of powers." Id. (citation omitted). ‘The trial court concluded that all the plaintiffs’ clains were barred by the doctrine of political question. specifically, the trial court ruled that this court has held that “the issue of whether the Territory of Hawai'i received good title to the ceded lands ie a non-justiciable political question,” and, as such, it was precluded from “consider [ing] the nerits of [p]laintiffe’ claim that the sale of ceded lands is prohibited due to a cloud on the States’s title due to the illegality of the overthrow." = xs previously indicated, the trial court, nevertheless, weat on to determine that the State had the legal authority to sell ceded lands. -69- *** FOR PUBLICATION *** In challenging the trial court's ruling, the OHA plaintiffs assert that their claims do not present a non- justiciable political question because, in their view, they are “not seeking a judicial resolution of the underlying claim for a return of lands,” but, instead, are asking only that this court “protect the trust assets while the diepute is being resolved by the political branches." In other words, the plaintiffs specifically assert that they are not “ask{ing] thie [cJourt to resolve any claim [to the ceded lands}, but only to protect the trust assets that are in dispute by issuing an injunction barring the sale or transfer of the [ceded] lands. [The plaintiffe] are seeking only to have this [clourt protect the [eJeded [1]ands from dissipation until the political branches can reach a just solution to this dispute.” In fact, the OHA plaintiffs admit that “the ultimate resolution of the [nlative Hawaiian clains must be through the political processes, and it is actively engaged in these proce: But this struggle for justice will te e. au longer exist when a solution is found." Additionally, the individual plaintiffs point out that their claims are not barred by the political question doctrine because the standards that apply to trusts provide this court with “judicially discoverable and manageable standards for resolving this issue.” -10- *** FOR PUBLICATION *** a ‘The defendants maintain that the trial court correctly determined that the plaintiffs’ clains presented non-justiciable political questions inasmich as, *(flor nearly 100 years{,] the Hawai'i Suprese Court has foreclosed judicial inquiry into the State’s title to the [ceded [1]ands because the issue presents a political question, inappropriate for decision by the judicial branch.’ Moreover, the defendants argue that there are four specific re lone why the plaintiffs’ claims present a non- justiciable political question: (1) “the case involves examination of questions for which there is a ‘textually denonstrable constitutional commitment of the issue to a coordinate political department’*; (2) “there is a ‘lack of judicially discoverable and manageable standards for resolving’ this case"; (3) “the ca ip impossible to decide ‘without an initial policy determination of a kind clearly for nonjudicial discretion’ and (4) “[thie clourt cannot undertake an ‘independent resolution without expressing lack of the respect due coordinate branches of government .‘* The primary question before this court on appeal is whether, in Light of the Apology Resolution, this court should sue an injunction to require the State, as trustee, to preserve the corpus of the ceded lands in the public lands trust unti2 such time as the clains of the native Hawaiian people to the ceded lands are resolved. ‘The important distinction here is that this court is pot being asked to decide whether native Hawaiians one *** FOR PUBLICATION *** SSS are entitled to the ceded lands. As even the plaintiffs recognize, the “ultimate resolution of the [nlative Hawaiian claima must be through the political process." We believe, as discussed supra, that the Apology Resolution -- which is at the heart of the plaintiffs’ claim -- and the related state legislation, give rise to the State’s fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinguished claims of the native Hawaiians have been resolved. Accordingly, we hold that the Apology Resolution and the related state legislation provide the standards needed for determining whether the issuance on an Andunction is proper. In other words court -- whether an injunction should issue the question before this presente a type of Givpute that ie traditionally resolved in the judiciary and, therefore, does not present a non-justiciable political question. Moreover, we believe that the defendants’ argunente with regard to four of the six Baker factors, previously enunerated, are without merit. First, this case does not involve van examination of questions for which there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department’ inasmich as the plaintiffs only Fequest an injunction pending the resolution of the plaintiffs’ underlying claims in the legislative process, and this court need ot encroach on any issues that have been constitutionally committed to a coordinate political department in order to o12- *** FOR PUBLICATION *** a determine if injunctive relief is appropriate. Second, there are, ao discussed infra, judicially manageable standards for issuing an injunction. Third, this court need not make "tan initial policy determination of a kind clearly for nonjudicial discretion’* in order to determine whether the plaintiffs’ requested injunction is appropriate inasmuch as this court need only look to the Apology Resolution and, additionally, the related state legislation, as discussed supra. Lastly, were this court to grant the plaintiffs’ requested injunctive relief, this court would not be “undertak [ing] an ‘independent resolution without expressing lack of the respect due coordinate branches of government’* because, as previously indicated, the question whether an injunction is warranted in this case is the kind of question traditionally reserved for the courts. Therefore, we agree with the plaintiffs that "the [trial clourt’s analysis and citations miss(ed] the mark because [ene plaintiffs are] not seeking a judicial resolution of the underlying claim for a return of lands, but [are] rather asking the judiciary to protect the trust assets while the dispute is being resolved by the political branches. This modest goal is well within the domain of the judiciary(.1* Accordingly, we hold the trial court incorrectly determined that the claims pr ented by the plaintiffs in thie cage -- to the extent they seek injunctive relief -- were barred by the political question doctrine. “73 *** FOR PUBLICATION *** ee Fr Pu fe" Reque: niunction As previously stated, the trial court -- although not required -- concluded that the defendants had the explicit authority under the Admissions Act and the Hawai"i state Constitution to alienate the ceded lands. Having so concluded, the trial court summarily denied the plaintiffa’ claim for Anjunctive relief, reasoning only that, for injunctive relief to issue on (the pllaintifte’ claim seeking @ permanent injunction based on the allegation chat sales of ceded lands constitute a breach of trust, (ene Pllaintitts mst first prevail on the merits of the underlying cause of action. The [trial] court only reaches the issue of “balance of irreparable harm” and "public interest in support” if the plaintiffs prevail on the merits. ‘The plaintiffs assert that the trial court erred in denying their request for injunctive relief because it was not necessary to first ‘resolve whether the State received ‘good title’ to grant injunctive relief in this case." As previously Giscussed, the plaintiffs’ request for injunctive relief is grounded in their view that the “recognition in [the Apology Resolution and Acts 354 and 359] of the illegality of the transfer of [the ceded] lands and the ongoing reconciliation and negotiation process dramatically reinforces the State's fiduciary obligation to protect the corpus of the [plublic (1]and [t}rust until an appropriate settlement is reached.” Additionally, the plaintiffs maintain that injunctive relief is critical to their ability to “protect the status quo before these [cleded lands are lost and the [native Hawaiian people suffer irreparable harm." The OHA plaintiffs cite to a number of international situations 1 *** FOR PUBLICATION *** oe chat they claim *illustrate(] that a moratorium on governmental action is appropriate to protect the rights of the natives while efforts to reach a proper settlement are underway." The individual plaintiffs suggest that this court should look to general trust law for guidance in determining whether to issue an injunction and that trust law mandates that an injunction be issued inasmuch as any sale or transfer of the illegally obtained ceded lands by the State would constitute a breach of its fiduciary duties to preserve the assets of the public lands trust until a settlement is reached The defendants maintain that the trial court correctly denied the plaintiffs’ request for injunctive relief because the plaintiffs have not shown they can prevail on the merits. specifically, the defendants argue that “the State has the undoubted and explicit power to sell [cleded [1]ands pursuant to the terms of the Admission Act and pursuant to [s]tate law. (7) [The pliaintifts have completely failed to show any basis for deviating from the terns of the trust or for finding that applicable [2] tate laws are unconstitutional or void." The = Rithough ve recognize that international law and situations cited by the plaintiffs provide support for their requested injunction, we do not Belitve it is necessary to engage ina discussion of these issues inasmuch at Sur holding is grounded in Hawai and federal law. 2 the defendants assert that there are five “reasons or bases" for the state's ‘unchallenged power to sell” the ceded lands: (1) ‘enabling acts generally and historically have affordea the power to sell to new states"; Sy" the Adaiseion Act specifically grants the power to sell"; (3) ‘the Hawad't Constitution contirns the power to sell"; (4) "state statutes embody the power fovseliv; and (5) “the Hawai’ Supreme Court has previously held that the State has power to sell." -15- *** FOR PUBLICATION *** SS defendants also argue that “the plaintiffs in our case specifically disclaim title to the (ceded [1Jands. There simply are no ‘merits’ on which plaintiffs did or could prevail." The defendants further assert that “the unprecedented nature of the plaintiffs’ request is highlighted by their use of the term ‘moratorium.’ It is not even clear whether this term is supposed to mean something different from ‘injunction,’ and if s0, what.” ‘The test for granting or denying temporary injunctive relief is three-fold: (1) whether the plaintiff is likely to Prevail on the merits; (2) whether the balance of irreparable Gamage favors the issuance of a temporary injunction; and (3) whether the public interest supports granting an injunction. Life of the Land v. Arivoshi, 59 Haw. 156, 158, 577 P.2d 1116, 11 (1978); see also Morgan v, Planning Dept’, County of Kauai, 104 Hawai'i 173, 86 P.3d 982 (2004). However, as observed by the Intermediate Court of Appeals in Penny. Transportation Lease Hawaii, Ltd., 2 Haw. App. 272, 630 P.2d 646 (1981), “[t]he more the balance of irreparable danage favors 41 uance of the injunction, the less the party king the injunction hae to show the likelihood of his success on the merits." id. at 276, 630 P.2d at 650 (citations omitted). As pointed out by the parties and the trial court, *Inlo reported Hawai'i case discusses the requizemente for entry of a permanent injunction.* However, we agree with the trial court that ‘it is generally held that ‘ [t]he standard for a preliminary injunction is essentially the same as -76- ** FOR PUBLICATION *** oo for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.’* Accordingly, we believe that the appropriate test in this jurisdiction for determining whether a permanent injunction is proper is: (1) whether the plaintiff has prevailed on the merits; (2) whether the balance of irreparable danage favors the issuance of a permanent injunction; and (3) whether the public interest supports granting such an injunction. ‘Thus, where a permanent injunction is sought from an appellate court, the first elenent of the test is necessarily concerned with whether the plaintiffs have prevailed on the merits of the appé See indian Motorcycle Ass’n, 66 F.3d at 1249. Having held that the Apology Resolution and related state Legislation give rise to the State’s fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time the unrelinguished clains of the native » see, e.g., Indian Motorevele Ass'n IZ Ltd. p’ship v, Massachusetts Mowning Bins asensy, €6 F.3d 1266, 1249 (let Cir. 1995): Four principal factore govern the appropriateness of Permanene injunctive relief: (1) whether the plaintitt has Brevaiied on the merits; (2) whether the plaintif£ will Bitter irreparable injury absent injunctive relief; (3) whether the harm to the plaintiff outweighs any harm threatened by the injunction; and (4) whether the public [dterest will be adversely affected by the injunction. (internal quotations marke and citation omitted.) -17- *** FOR PUBLICATION *** $$ Hawaiians have been resolved, we believe the plaintiffs, as a matter of law, have succeeded on the merits of their claim inasmich as any future transfer of ceded lands by the state would be a breach of the State’s fiduciary duty to preserve the trust res. Specifically, the language of the Apology Resolution itself supports the issuance of an injunction. As previously discussed, we believe, based on a plain reading of the Apology Resolution, that Congress has clearly recognized that the native Hawaiian people have unrelinguished clains over the ceded lands, which were taken without consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations. Equally cl r is Congres vexpress{ed) . . . commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United states and the [nJative Hawaiian people.” Apology Resolution, Pub. L. No, 103-150, 107 stat. 1520 (emphasis added). Accordingly, the Apology Resolution dictates that the ceded lands should be Preserved pending a reconciliation between the United states and the native Hawaiian people. Without an injunction, the ceded lands are at risk of being alienated and, as previously stated, once the ceded lands are sold or transferred from the public lands trust, they will not be available to satisfy the unrelinguised claims of native Hawaiians and will, as discussed -78 *** FOR PUBLICATION *** a more fully infra, undoubtedly have a negative impact on the contemplated reconciliation efforts. the plaintiffs’ argument that an injunction is lary to preserve the status quo pending the resolution of the native Hawaiians’ clains to the ceded lands is further supported by the Justice and Interior Departments’ report, entitled *Prom Mauka to Makai: The River of Justice Must Flow Freely." As previously stated, the report states: “As [al matter of justice and equity, this report recommends that [nJative Hawaiian people should have self-determination over their own affaire within the franework of [flederal law, as do Native Auerican tribes.’ (Format altered.) (Emphases added.) Moreover, the Departments asserted that, “[t]o safeguard and enhance {nJative Hawaiian self-determination over their lands, cultural resources, and internal affairs, the Departments believe congress should enact further legislation to clarify [nJative Hawaiians’ political status and to create a framework for recognizing a governnent-to-government relationship with a representative [native Hawaiian governing body.” More importantly, the state legislature itself hi announced that future reconciliation between the State and native Hawaiians will occur. The Hawai'i legislature, in Acts 359 and 329, discuesed supra, recognized that “the indigenous people of Hawai'i were denied . . . their lands,” 1993 Haw. Sess. L. Act 359, § 1(9) at 1020 (creating a Hawaiian Sovereignty Advisory -19- *** FOR PUBLICATION *** ee Commission), and contemplated further action by the legislature to reach a “lasting reconciliation so desired by all people of Mawai'i.* 1997 Haw. Sess. L. Act 329, § 1 at 956. Although Act 359, which created the Hawaiian Sovereignty Advisory Commission, not specifically address the issue of native Hawaiians’ title to ceded lands, the stated purpose of the Act was to “facilitate the efforts of native Hawaiians to be governed by an indigenous sovereign nation of their own choosing." 1993 Haw. Seas. L. act 359, § 2 at 1010, As previously stated, Act 354 recognized that “ImJany native Hawaiians believe that the lands taken without their consent should be returned and if not, monetary reparatione made, and that they should have the right to sovereignty, or the Hight to self-determination and self-governnent as do other native American peoples." 1993 Haw. Se: L. Act 354, § 1 at 1000. Moreover, the legislature "acknowledged that the actions by the United States were illegal and immoral, and pledge[d) ite continued support to the native Hawaiian community by taking steps to promote the restoration of the rights and dignity of native Hawaiians." Id. Additionally, in act 329, the moving “toward a comprehensive, iust.and lasting resolution" regarding native Hawaiian claims to the ceded lands. 1997 Haw. Sess. Law. Act 329, § 1 at 956 legislature indicated that it w. (emph is added) . -80- *** FOR PUBLICATION *** ‘The governor, herself, has indicated her commitment - and, by association, that of the executive branch -- to settling the native Hawaiians’ clains to the ceded lands. On January 21, 2003, in her “State of the State Address," Governor Lingle stated, “Here at hone in Hawai‘i[,] I will continue to work with you [ise., the menbers of the legislature] and with the Hawaiian community to resolve the ceded lands issue once and for all Linda Lingle, Governor, State of Hawai'i, State of the State Address: An Outline of the Governor’s Agenda (Jan. 21, 2003). Riso, as previously noted, testimony was adduced at trial that the state has been following a self-inposed moratorium since 1994 on the sales of ceded lands until a resolution of the present lawsuit. Such a 1f-imposed moratorium leads to an inference that questions regarding the title to the ceded lands exist and, additionally, that the State is apparently able to comply with ite duties public lands trustee without having to alienate the ceded Lands In sum, all of the aforementioned pronouncements indicate that the issue of native Hawaiian title to the cede lands will be addressed through the political process. In this case, Congress, the Hawai" state legislature, the parties, and the trial court all recognize (1) the cultural importance of the land to native Hawaiians, (2) that the ceded lands were illegally taken from the native Hawaiian monarchy, (3) that future reconciliation between the etate and the native Hawaiian people e1- *** FOR PUBLICATION *** eee is contemplated, and, (4) once any ceded lands are alienated from the public lands trust, they will be gone forever. For present purposes, this court need not speculate as to what a future settlement might entail -- i.e., whether such settlement would involve monetary payment, transfer of lands, ceded or otherwise, @ combination of money and land, or the creation of a sovereign Hawaiian nation; it is enough that Congress, the legislature, and the governor have all expressed their desire to reach such a settlement. In other words, the aforementioned pronouncements as they relate and impact the plaintiffs’ claim for injunctive relief clearly support the plaintiffs’ position that the state has a fiduciary duty as trustee to protect the ceded lands ending a resolution of native Hawaiian claims. As such, we believe that the plaintiffs have met the first prong of the three-part test for issuance of a permanent injunction, i.e., Prevailing on the merits of their claim. ‘The second prong of the test for an injunction is whether “the balance of irreparable damage favor[s] the issuance of a temporary injunction. Life of the Land, 59 Haw. at 158, 577 P.ad at 1118. Obviously, without an injunction, any ceded lands alienated from the public lands trust will be lost and will not be available for the future reconciliation efforts contemplated by the Apology Resolution, Acts 354, 358, and 329, and Governor Lingle. Although an argument could be made that monetary reparations would be the logical remedy for such loss, -02- #** FOR PUBLICATION *** a we are keenly aware -- as was Congress -- that “the health and well-being of the [nJative Hawaiian people is intrinsically tied to their deep feelings and attachment to the land[.1* Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510 (emphasis added) . Indeed, as more eloquently stated by the trial court: ‘The [native Hawaiian [pleople continue to be 2 unigue and Ziseinee people with their ovn language, social system, Gneestral’ and national lands, customs, practices {hetitutions, ‘The health and well-being of the (native Mjawallan people ie intrinsically tied eo their deep ‘ond attachsent to the land.” ((Citing in = to the Apology Resolution.j) 3 . pudticiene hele at r - wie f sti Hawaiian cosmology, and {a ixreplaceable. The satural Uiitencs < land, air, vater, ocean ~~ are interconnected find interdependent. ssatyy Se ee ee om vaina if part of their epriiud they care for it aa they do for other members of their families 1 Euvizonnent ip alive ea sd, ‘ven moraines. (Footnotes omitted.) (Emphases added.) Moreover, testimony adduced at trial further supports and underscores the importance of the land to native Hawaiians and to their continued “cultural identity . . . spiritual and traditional beliefs, customs, practices, language, and social institutions," Apology Resolution, Pub. L. No. 103-150, 107 stat. 1510, ae well as the historical and cultural reasons therefor. For example, David H. Getches, a professor at the univereity of Colorado School of Law, was called to testify as the plaintiffs’ expert. Getches testified that he was a menber of the editorial board for the 1982 edition of the Felix Coven’s Handbook of Federal Indian Law, considered “one of the leading -03- *** FOR PUBLICATIO! ee treatises on Indian law,* and authored the chapter on native Hawaiians, He was qualified as an expert in the field of “natural resources law," without objection. with regard to the ceded lands, Getches testified: Q. (By plaintiffs’ counsel] You have said that Preventing ceded lands from being transferred would keep the glains situation from becoming more complicated, preserve Flexibility, and be consistent with the incent of cone and the state legislature. Based on your knowledge of the history of native Hawaiian claime[,] weat ss 20 special about these lands? A. (By Getches) 1 think that what ie special about 7 mx. This Te haghly umveual to be able fo trace thie mich land otiil in public Gwership back to tre time of dispossession, the very root of these Claire Secondly, this ie land waich my understanding ie ha been traditionally used in sone places by native people for traditional purpose: ‘thir, fa ” mn s 1 on ie one rr So there is certainly sonething special above tines tesa when if cones to their use and disposition in the future, Purther, T think that it ie notable that the objection Eo the use of these lands is coming now by the only lessliy, constituted voice for the present aay successors to the people who were dispossessed, Thi Je as Hhis cage. "And I think those reasons all support she Conclusion that there ia something special about ‘the snae’ © “can'a political entity have governance without having any territory? * u ave relanty with land. ‘There afe sone exceptional examples. Terseiiees before there was an Terael had a notion of governance, It is very difficult for'a government to operate without territorial boundaries. O Is governance important? re land important to native people for cultural survival as well? ‘a Yea. Ae I indicated, there are traditional uses of land, and in'particular the land you were asking me aboce, that'make it especially important. Land generally for hnative people -- I am now speaking based on my kaowicdge of Indian tribes throughout the United States and the on have worked with =~ dai jeneraLiy ext) i as 2) ieterninati ‘Spteasion, 2 of a: 2 a) people have said Tt 0 me. at weil, Eo ne al roots, going back to the ancestors that cam be felt and who vere known and the ancestors who were unknown and exist only in the epiritual world, raat connects present day communities with one another, within 84. *** FOR PUBLICATION *** oo (Bmphases those cultural roots. So the Jand is sysbolic for that, SRStE SS HEIs tor burial places or Just the feeling that this Je the place of inportance Finally, a ual fulfilinent someening we 68 not ae Oe love cert ene tna-apiritual way. I love certain HMREEARES CT Go and sone that rown. But it is really, pitegiaisferent. having the Land, water, nature connection That native people have. I don’t Like seneralizations about sath veGroupe. "And what {4-conmon among thes. hie is the « ety 2 with tend eh or added.) olive Kanahele was called as a witness by the plaintiffs. She holde a bachelor of arts degree in Hawaiian Studies and is a "kumi hula” or dance teacher. In addition to teaching dance, ise., the hula, Kanahele described learning about ancient Hawaiian chants and testified specifically regarding chants that tell the story of Pele and Hiiaka, deities of the Life cycle. According to Kanahele, pele cones and she erupts and her lava goes all over the Jelge Gna also extende land. And Hilaka comes along and her function as the eg3 chile {eto allow things to grow saree and. and'co he’s the healer of the family and she PEaio ene ands and things begin to grow. And as the things Begin co grow, then it becomes suitable for. . - humans vei? te live'on. linen asked about “the land," Kanahele testified: ‘the land itself... {9 the deity, Pele, The land it TEE fade from fire and it comes fron out of the earth. oa Know, Toean give you a little geneaology (sic) of the yee fominy. “tne pele family comes from -~ the mythological Reneaclogy: (eicl of the Pele fanily is that the nother is EERE TORL. {eStne other Earth, she is the earch and all of tiiue Ghilires are born fron different parts of her. Pele i born from the natural channel of @ fenale, the conse from the wonb. And eo... Ber feeaSssbiticy 12 co go back into the wonb of the nother and Eon bring cut ail of these things that ve call land, that we UU Peagha ane lava and eventuaily will becose Land. ‘One af the -- one of the ost amazing Literary work that ve have ie the kumlipo. .. . The kemulipo spane Seterations of people... And the first era of the *** FOR PUBLICATION *** eee sumulipo, the very first Line of the kumlipe talks about the making of the earth © 1 find why does it have to be earth, you ask me? it has to be earch because as man we need -—- we need land to live on. That le =~ that is our foundation” kat ze a ae their foundation. and ie their identity. (Bmphases added.) Based on the foregoing, we believe the second Prong of the test for an injunction, i.e., irreparable danage, has been met. Life of the Land, 59 Haw. at 158, 577 P.2d at aus. ‘The last prong of the test for an injunction is whether “the public interest supports granting an injunction." Id. Here, we need look no further than the legislative pronouncement contained in Act 329, declaring that a “lasting reconciliation (is] desired by all people of Hawai'i,” 1997 Haw. Sess. L. Act. 329 § 1 at 956, to conclude that the public interest supports granting an injunction. We firmly believe that, given the “crucial inportance lof the ‘aina or land to] the (native Hawaiian people and their culture, their religion, their economic set-sufficiency, and their je of personal and community well-being,* any further diminishnent of the ceded lands (the ‘aina) from the public lands trust will negatively impact the contemplated conciliation/settlenent efforts between native Hawaiians and the state, -86- *** FOR PUBLICATION *** a Ie is well-settled that 2 “[e]ettlement is an agreenent to terminate, by means of mutual concessions, a claim that is disputed in good faith . . . and is designed to prevent or put at end to Litigation.” a ve ker, 102 Hawai'i 237, 251, 65 P.3d 1028, 1043 (2003) (internal quotation marks, original brackets, citation, and footnote omitted). The continued diminishment of the public lands trust means that any land sold or transferred to third parties will be lost and, thus, unavailable for settlement purposes. As such, native Hawaiians would be placed in an unfair and disadvantaged position inasmuch as they may, ultimately, be forced to accept less-than-desirable settlement terms and make concessions that they would not have otherwise made had certain ceded lands, for example, been kept in the public lands trust. Moreover, the State, acting as both the trustee of the land (with the power to alienate it) and a major participant in the negotiation process, would be in a more advantageous position and have greater bargaining power. In our view, enjoining the defendants from selling or otherwii transferring to third parties any ceded lands from the public land trust until the claims of the native Hawaiians to those lands ave resolved and, thus, preserving the status quo and the trust res, would help in leveling the playing field during the pendency of settlement negotiations and reconciliation process -87- *** FOR PUBLICATION *** SS contemplated by the Apology Resolution and related state legislation discussed supra. Cf. Hosp, Klean of Tex., Inc, v. United States, 65 Fed. Cl. 618 (2005) (finding lost opportunity to compete for contract on level playing field sufficient to constitute irreparable harm for purpose of issuing temporary restraining order); Regal-Beloit Corp. v, Drecoll, 955 F. supp. 849, 867 (N.D. I11. 1996) (injunction iesued to level the playing field of the parties). Finally, as indicated by the plaintiffs, their request for an injunction is further supported by the United states Supreme Court’s decision in Lane v, Pueblo of Santa Rosa, 249 U.S. 110 (1919). In Lane, the plaintif£, ‘an Indian town,” brought a claim seeking to enjoin certain governmental officials from “offering, listing, or disposing of certain lands in southern Arizona as public lands of the United stati " 249 uL8. at 111, The plaintiffs alleged two grounds for their suit: (2) “that under the laws of Spain and Mexico it had, when that region w acquired by the United States, and under the Provisions of the treaty it now hae, a complete and perfect title to the lands in question"; and (2) “that in disregard of ite title the defendants are threatening and proceeding to offer, List and dispose of these lands as public lands of the United States.” Id. The court “of first instance" granted the defendants’ motion to dismiss. Id. On appeal, the Court of *** FOR PUBLICATION *** a Appeals of the District of Columbia held that the plaintiff's claims entitled it to relief and granted its requested permanent injunction. Id, The defendants challenged the Court of Appeals decision. Although, ultimately determining that the Court of Appeals should not have granted the permanent injunction because that proceeding did not afford the defendants the opportunity te answer the merits, the Court observed: ‘the defendants assert with mich earnestness that the Indians Techie pucbio are wards of the United States -- recognized So such by the legislative and executive departnent that, in consequence the di spo Adthu"ehels owe contol, bue subject to such regulations “Sggrees my prescribe for their benefit and protection. Seeiming. without eo deciding, that ehis La ali true, we Shinn ie nae ne reel bearing on the point we are Sonsidering, ‘certainly(,] it would not justify che Seleadante in treating the lands of these Indians -- to Gnich, according to the Dill, they have a complete and Dereece title, as public lands of the United States and Bftponing of the ame under the public land laws. That wid not be an exer: zt the indians are not bere sataplieh any over oF SanAGL sn dioonat or Sasiniatrative officers in disregard of their full SDN DOr their capacity to maintain such a suit we Gneereain no doubt. The existing wardship Ss not an Sbetacie, as ie shown by repeated decisions of this court(.) bane, 249 U.S. at 113 (emphasis added) (footnote omitted). The Court held that the decrees of both courts below should be reversed and the Care remanded £0 the court of firet instance, with direction eegyekEule’ ene motion to ditmiss, to afford the defendants So Sppertunity to answer the bill, (and) to arant an order Seacreining then from in any wise offerin i 2 ‘he final ‘Secreel! 7 Id. at 114 (emphasis added) . -89- *** FOR PUBLICATION *** «Sao As the defendants in this case point out, the facts in the instant case differ from those in Lang inasmuch the plaintiffs do not assert that they have “complete and perfect fitter and do not “seek judicial resolution of any controversy,” #8 well as the fact that “Lane considered only the executive branch’s power to deal with Indian land.” Nevertheless, Lane is instructive to the extent that it demonstrates the Court's rationale for ordering that injunctive relief be granted pending final resolution of claims. The fact that Lane involved a Judicial resolution for a controversy versus a legislative resolution as in the instant case is, in our view, a distinction without a difference Based on the foregoing discussion, we conclude that the plaintiffs have established that injunctive relief is proper Pending final resolution of native Hawaiian claime through the political process, Accordingly, we hold that the trial court erred in denying the plaintiffs’ request for injunctive relief, G. The Plaintiffs’ Remaining contentions Tn light of the above discussion, we need not address fhe OHA plaintiffa’ remaining contentions regarding declaratory relief or certain evidentiary rulings made by the trial court. IV. concuuszon Based on the foregoing, we hold that: (1) the Apology Resolution and related state legislation, give rise to the State's fiduciary duty to preserve the corpus of the public lands -90- #** FOR PUBLICATION *** ee trust, specifically, the ceded lands, until such time as the unrelinguished claims of the native Hawaiians have been resolved; (2) the trial court correctly determined that this court's unpublished decision in Trustees of the Office of Hawaiian Affaire v. Board of Land and Natural Resources, No. 19774 (Haw. Mar. 12, 1998) (mem.), did not collaterally estop the plaintiffs’ claims in this case inasmuch as the elements of collateral estoppel, see Keahole Def. Coal., Inc, v. Bd, of Land & Natural Ress, 110 Hawai'i 419, 429, 134 P.3d 585, 595 (2006), are not pre wnt; (3) the plaintiffs’ claim for injunctive relief with regard to the Leiali‘i parcel is not barred by sovereign inmunity based on our conclusion that the $31 million expenditure on infrastructure for the Lesali‘i parcel had only an ancillary effect -- albeit a substantial one -- on the state treasury, gee Kaho'chanchano v. State, 114 Hawai'i 302, 337, 162 P.3d 696, 732 (2007); (4) inasmuch as the Apology Resolution and related state legislation give rise to a fiduciary duty by the State, as trustee, to preserve the corpus of the public lands truat until such time as the unrelinguished claims of the native Hawaiians have been resolved, the trial court's conclusion that OHA's actions between 1987 and 1994 constituted a waiver of the plaintiffs’ claims was clearly erroneous and, therefore, the plaintifts did not waive their claim for injunctive relief with regard to the Leiali'i parcel; (5) the plaintiffs were not estopped from challenging the transfer of the Leiali'i parcel -91- *** FOR PUBLICATION *** oo based on their pre-1993 actions because it was not until the Apology Resolution was signed into law on Novenber 23, 1993 that the plaintiffs’ claim regarding the State’s explicit fiduciary Guty to preserve the corpus of the public lands trust arose; (6) inasmich as the plaintiffs’ requested relief is clearly Prospective in nature, the plaintiffs’ claims with regard to the sale or transfer of the ceded lands in general are not barred by sovereign inmunity; (7) the question whether an injunction is appropriate to allow resolution of the plaintiffs’ unrelinguished claims without further diminishnent of the trust res is ripe for adjudication; (@) the question whether an injunction should issue Presents a type of dispute that ie traditionally resolved by the courts and, therefore, does not present a non-justiciable political question; (9) the appropriate test in this jurisdiction for determining whether a permanent injunction is proper ie: (a) whether the plaintiff has prevailed on the merits, (®) whether the balance of irreparable damage favors the issuance ©f @ permanent injunction; and (c) whether the public interest Supports granting such an injunction; and (10) the plaintiffs have ‘ablished that injunctive relief is proper pending final resolution of native Hawaiian claims through the political proces Accordingly, we vacate the trial court’s January 31, 2003 judgment and remand this case to the circuit court with instructions to issue an order granting the plaintiffs’ request -92- *** FOR PUBLICATION *** for an injunction against the defendants from selling or otherwise transferring to third parties (1) the Leials‘i parcel and (2) any other ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands have been resolved. on the briefs: Gpor— sherry P. Broder, Bi fotoansmr Jon M. Van Dyke, and Melody MacKenzi¢, for plaintiffe-appeliants Office of Hawaiian Affairs Ooo William Meheula (of Winer Meheula & Devens) and etal Rbe Hayden Aluli, for individual plaintiffs-appellants Aluli, et al Petes Gr nueere pose William J. wynhoff and Sonia Faust, Deputy Attorneys General, for defendants-appellees -93-
d69285032e4b204f82858477ff5583d26a71f7fd8f1a3d3e78cdf881da30571c
2008-01-31T00:00:00Z
00b1d270-5dfa-4328-ac3d-0b8ea84cf0fa
Berinobis v. Siu
null
28864
hawaii
Hawaii Supreme Court
No. 28864 IN THE SUPREME COURT 0 TE STATE OF HAWAT‘z SHARON A. F. BERINOBIS, Respondent /Plaintiff-Appellee, DARRELL aka Nicky Catering aka Nicky Barbeque, Petitioner/Defendant-Appel lant CERTIORARI TO THE INTERMEDIATE COURT (CIV. NO. 1RCO7-1-3660) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORART (By: Moon, C.J., for the court") Petitioner/defendant-appellant Darrell Siu's application for writ of certiorari, filed August 18, 2009, is hereby rejected, DATED: Honolulu, Hawai'i, September 28, 2009. Richard Hacker, FOR THE COURT: for petitioner/defendant- appellant, on the application 00 S:HY 82 43S e002 aa Considered by: Moon, C.J., Nakayana, Acoba, Duffy, and Recktenald,
e70f7bf5f3c96af2be43ae96a6ccb6ebdb70e328003514748976ccb6f0121f25
2009-09-28T00:00:00Z
d622e38a-ad2b-42ff-84e0-758dfb39be0f
Cawthon v. Ching, Director, State of Hawaii, Department of Labor and Industrial Relations
null
null
hawaii
Hawaii Supreme Court
no. 30086 IN THE SUPREME COURT OF THE STATE OF HAWAI'I ss SS DEBBIE L. CAWTHON and RONALD D. CAWTHON, Petitioners, 3 t 490 6002 DARWIN CHING, DIRECTOR, STATS OF HAWAI'I DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS and GARY HAMADA, ADMINISTRATOR, WORKER'S COMPENSATION DIVISION, STATE OF HAWAI'I, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Respondents. ORIGINAL PROCEEDING (By: Moon, C.J, Nakayama, AGObEY Duffy, and Recktenvald, JJ.) Upon consideration of the petition for a weit of mandamus filed by petitioners Debbie L. Cawthon and Ronald 9. Cawthon and the papers in support, ‘t appears that the furnishing of medical care and the payment of benefits under HRS Chapter 366 are not ministerial duties of the respondents. Therefore, petitioners are not entitled to mandamus relief. See HRS § 602- 5(3) (Supp. 2008) (The supreme court has jurisdiction and power to issue write of mandamus directed to public office! to compel them to fulfill the duties of their offices.); In Re Disciplinary Rd. Of Hawais 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 is ministerial and so plainly prescribed as to be free from doubt, and no other remedy is available.); Salling v. Moon, 76 Hawai'i 273, 274 n, 3, 874 P.2d 1098, 1099 n.3 (1994) (“A duty is ministerial where the law prescribes and defines the duty to be oan performed with such precision and certainty as to leave not to the exercise of discretion and judgment.”). Accordingly, IT IS HEREBY ORDERED that the petition for a writ mandamus is denied. DATED: Honolulu, Haw + October 19, 2009. Gm Beewen Gromer ree (2 Pore, Sasa + Now €, Aelita
e2640a482dbfc37947151e6a09c6cc61ca357b29591c1593ec208ffed21ec330
2009-10-19T00:00:00Z
ea274ac4-0c7c-40fe-95fc-e59bb61ceff7
In re RGB, a Minor
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 20582 IN THE SUPREME COURT OF THE STATE OF HAWAI'I IN THE INTEREST OF 3 g — “8B A wzwon 8 oF oz 8 3 ado 8 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FO-S NO. 01-0063) (By: Acoba, J., for the court") The Application for Writ of Certiorari filed on August 13, 2009 by Petitioner/Mother-Appellant is accepted and will be scheduled for oral argunent. The parties will be notified by the appellate clerk regarding scheduling. Honolulu, Hawai'i, September 23, 2009. DATED: FOR THE COURT: — Associate Justice James Ireijo, on the application for petitioner/mother- appellant. ) considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, Jd
1f51ef26f083710807747a5fcb0ddaf866f6a9dc3b5e10de0d19fff2508fe02a
2009-09-23T00:00:00Z
2958524b-4a2f-45bc-a54f-633c5ef02f1b
Keliihananui v. Evans
null
null
hawaii
Hawaii Supreme Court
Considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and 1 Intermediate Court of Appeals Chief Judge Nakamura, assigned by reason of vacancy. NO. 29737 IN THE SUPREME COURT OF THE STATE OF HAWAI#I JANICE K. M. CHUNG KELI#IHANANUI, Petitioner, vs. DR. EVANS, PSYCHIATRIST, OAHU COMMUNITY CORRECTIONAL CENTER, Respondent. ORIGINAL PROCEEDING ORDER (By: Duffy, J. for the court1) Upon consideration of petitioner Janice K. M. Chung Keli#ihananui’s papers filed on October 13, 2009, which request additional time to file a motion for reconsideration of the April 21, 2009 order denying the petition for a writ of mandamus, IT IS HEREBY ORDERED that the request for additional time to file a motion for reconsideration is denied. IT IS FURTHER ORDERED that the clerk of the appellate court shall not accept any further filings in this case. DATED: Honolulu, Hawai#i, November 2, 2009.
19391bb48519ab4228053fa3df6892eef1948808af9dcdf23c46848a4579de85
2009-09-29T00:00:00Z
2ab16106-896d-4abf-bff7-ca85edc0cfdd
Mathison v. Hawaii Paroling Authority.
null
null
hawaii
Hawaii Supreme Court
No, 30117 IN THE SUPREME COURT OF THE STATE OF HAWAI'I KENNETH WAYNE MATHISON, Petitioner, 3 HAWAII PAROLING AUTHORITY, Respondent. = ORIGINAL PROCEEDING J 3 (By: Moon, C.J. Nakayama, AGoEa Duffy, and Recktenwald, 33.) Upon consideration of the petition for a writ of mandamus filed by petitioner Kenneth Wayne Mathison and the papers in aupport, it appears that providing inmates with discovery of minimum term fixing materials is discretionary under the Hawaii Paroling Authority’s administrative rules and is not mandated by HRPP Rule 16. See HAR § 23-700-22(g) ("An inmate may be afforded the opportunity, subject to security considerations, to consider and review materials the [Hawaii Paroling] Authority has that pertain to the fixing of the inmate’s minimun term.” HRPP Rule 1 ("[The HRPP] rules shall govern the procedure [in all penal proceedings] in the courts of the State(.]"). Therefore, petitioner is not entitled to mandamus relief. See HRS § 602- 5(3) (Supp. 2008) (The suprene court has jurisdiction and power to issue writs of mandamus directed to public officers to compel them to fulfill the duties of their offices.); In Re Disciplinary Bd. Of 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 is oats ministerial and so plainly prescribed as to be free from doubt, and no other renedy is available.); Salling v. Moon, 76 Hawai'i 273, 274 n. 3, 874 P.2d 1098, 1099 n.3 (1994) (“A duty és ministerial where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion and judgment.”). Accordingly, I? 1S HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, October 30, 2009. Spm Beas COT Sepa Dae Gare Rigs oe lo Cllr Cod
69a65d7f172b090c94cb305b88e447383376cd1045e2a4557cb89e2646aa7da3
2009-10-30T00:00:00Z
651eaf93-b5a8-4260-bff6-477ab7b7a918
State v. Driessen
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 28894 IN THE SUPREME COURT OF THE STATE OF HAWAT'. 62.38 sug STATE OF HAWAI'I, Respondent-Plaintiff-Appe ors Petitioner-Defendant-Appe: GREGORY DRIESSEN, ne CERTIORARI TO THE INTERMEDIATE COURT OF APP! (CR. NO. 07-1-0211) NG_APPLICATION (By: Nakayama, J., for the court!) Petitioner-Defendant-Appellant’s application for writ is hereby rejected. oni of certiorari filed on August 19, 2009, e Fy FOR THE COURT: SEAL” Beets Le toy uri os. Associate Justice Boe wt Linda C.R, Jameson for petitioner-defendant- appellant on the application ‘considered by: Moon, C.J.» Nakayame, Acoba, Duffy, and Recktenwald, J
eaf5171b48c6b5dd2447e3c5997fa5f21977aa1838dcd6a9d6e974b7024b477e
2009-09-29T00:00:00Z
a02eac42-2d49-47c2-97aa-00467b3dcf9b
State v. Mattson
null
29170
hawaii
Hawaii Supreme Court
No. 29170 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAT'L, Respondent /Plaintiff-appellee vs gaus JOSEH MATTSON, IIT, Petitioner /Defendant-Appellant al a CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 07-1-1984) By Reoben de for the core et ‘The application for writ of certiorari filed by DATED: Honolulu, Hawai'i, October 14, 2009. oe Qa cw (SIMEON R. ACOBA, JR. Associate Justice > of James S. Tabe, Deputy Public Defender, on the application, for petitioner /defendant- appellant. * Considered by Moon, C.J. Nakayama, Acoba, Duffy, and Recktenwald, as.
9836315e3ee79cf16518355019e06ec0a4584c8950563bac86277b84f73b2abb
2009-10-14T00:00:00Z
06af8647-7bb7-4b14-b4aa-1776eb25dbe1
Carswell v. Department of Land and Natural Resources, State of Hawaii
null
28730
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 28730 IN THE SUPREME COURT OF THE STATE OF HAWAT'T DONN CARSWELL, GALE CARSWELL, FRANK 0. HAY, PAUL T. MATSUNAGA, ARLINE Y. MATSUNAGA, LINDA M. ALIMBAYOGUEN, PETER’ BECKERMAN, PETER K. BALDWIN, SAMUEL BLAIR, PAULETTE BURTNER, JOEL CAVASSO, ERIK P. COOPERSMITH, PRANK W.N. COX, VIRGINTA’N.#. DUNAS, ELIZABETH DUNFORD, GLENN HONTZ, WAYNE JACINTHO, CRYSTAL S. JONES, RICHARD C. JONES, DAVID KOCH, 'LEALANI CORPORATION, JOANN GIVENS, MICHAEL GIVENS, BASIL L. MAYO, SHERILL E. MILLER, BARBARA PUTZIER, KARL RAMIREZ, PATRICIA SHEEHAN, ROBERT T. SWENEY, VICKY TAYLOR, A.J. TOULON, JR., ELIZABETH TOULON, WAIMEA GARAGE, LTD., CECILIA A, WILLTAMS, HARWOOD D. WILLTAMSON, NANCY H. WILLIAMSON, CYNTHIA WILSON, JAMES WILSON, WATYEE CARMEN WONG, AND DOES 1-94, Pet itioners/Plaintiffs-Appellants, and PAUL KYNO AND CRAIG WISEN, Respondents/Plaintifts~ DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE 0} INDIVIDUAL DOES 1-10, DOE PARTNERSHIPS 1-10, CORPORATIONS 1-10, AND DOB ENTITIES 1-10, Respondents/Defendants-Appellees. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. No. 6-1-0049) CATION FOR WR) (By: Duffy, J., for the court") Petitioners/Plaintiffs-Appellants’ application for writ of certiorari, filed on September 9, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, October 12, 2009. Daniel G. Hempey FOR THE COURT: for petitioners/ plaintiffs-appellants Vom e Deine on the application Associate Justice Considered by: Moon, C.J., Nakayama, Acsba, Duffy, and Recktenwald, aa G3,
6eb871db06434755306c3f7d250d864a90e3783fed7ab17dff90bfcae705bdc9
2009-10-12T00:00:00Z
ea9b6036-84aa-4d44-aa38-e41abfe94638
State v. Rapozo
null
null
hawaii
Hawaii Supreme Court
wo. 29215 IN THE SUPREME COURT OF THE STATE OF HAWAZ'T STATE OF HAWAI'T, Respondent /Plaintiff-appellant, | 3 vs. 3 TANYA RAPOZO, aka Tanya Rapoza, =a] Petitioner /Defendant Appellee. ag. = sf = — CERTIORARI 10 THE INTERMEDIATE courr oF ape? |B (CR. NO. 07-01-0760) ORDER _ACCEPTH LORART (By: Recktenwald, J. for the court") Petitioner/Defendant-appellee Tanya Rapozo’s application for writ of certiorari filed on September 1, 2003, is hereby accepted and will be scheduled for oral argument. the parties will be notified by the appellate clerk regarding scheduling, DATED: Honolulu, Hawai"i, October 9, 2009 FOR THE COUR Associate Justice Alvin K. Nishimura, on the application’ for petitioner/defendant- appellee. 2 Considered by: Moon, ¢.J., Nakayama, Acoba, Duffy, and Recktenwalé, JJ oad
cc765c4eb9623da45a95e6425825dbd5852fe245b5339d5205d86da0bd636770
2009-10-09T00:00:00Z
b505fe85-ce41-4efd-911b-683076d018b3
Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC
121 Haw. 257
28840
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 28840 IN THE SUPREME COURT OF THE STATE OF HANAT'T KONA VILLAGE REALTY, INC., et al., Respondents-Appgqlees o3ns SUNSTONE REALTY PARTNERS XIV, LLC, et al. Pet itioners-Appellants. MOF AY Sz a39 cage CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. No. 05-1-88k) ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI WITHOUT PREJUDICE (By: Nakayama, J., for the court*) 1 in the above- Tt appearing that the judgment on app referenced matter has not been entered by the Intermediate Court of Appeals, see Hawai'i Revised Statutes § 602-59(a), as amended by Act 149 of the 2006 Hawai'i Session Laws; sea algo Hawai"! Rules of Appellate Procedure (HRAP) Rule 36(b) (1) (2006), IT IS HEREBY ORDERED that petitioner-appellant’s application for writ of certiorari, filed on September 24, 2009, is dismissed without prejudice to re-filing the application (Mo later than 90 days after the pursuant to HRAP Rule 40.1(a) judgment on appeal filing of the intermediate court of appeals’ or dismissal order, any party may apply in writing to the supreme court for a writ of certiorari.”). DATED: Honolulu, Hawai'i, September 25, 2009. FOR THE COURT: ER Ruut : 2 Associate custice | SEAL | Ve oe wh court: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit udge Crandall, in place of Recktenwald, J-,| recused,
d97bb9a17e865fc5fff0da32f7cedd207213f0a38e3d17a732b9ec2eea88b414
2009-09-25T00:00:00Z
3be56ca7-b23d-43cf-9fe1-bf0c99911872
Birano v. State
null
null
hawaii
Hawaii Supreme Court
wo. 29050 IN THE SUPREME COURT OF THE STATE OF HAWAPE!= oa STATE OF HAWAI'I, Respondent/Respondent-Appellee. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S.2.P. NO. O7-1-0012; CR. NO. 01-1~1154) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORART (By: Nakayama, J., for the court!) Petitioner/Petitioner-Appellant’s application for writ of certiorari filed on July 23, 2009, is denied without prejudice to Petitioner filing another Hawai'i Rules of Penal Procedure (HRPP) Rule 40 Petition. DATED: Honolulu, Hawai'i, September 4, 2009. FOR THE COURT: Peuen Bs Associate Justice cynthia A. Kagiwada for Petitioner/Petitioner- Appellant on the application ‘considered by: Moon, C.J.» Nakayama, Acoba, and O¥ffy, 93. and Circuit Judge Kim, in place of Recktenwald, J., recused.
11750b6d3c700ba55be9a8be93733e26ef247b2edf9eeeb419bcc6b1ca7a0374
2009-09-04T00:00:00Z
00a3a96f-8cf2-485a-8815-49741f7683f4
Unite Here! Local 5 v. City and County of Honolulu
null
28602
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 28602 IN THE SUPREME COURT OF THE STATE OF HAWAT'Z Civil No, 06-1-0265 ERIC W. GILL: UNITE HERE! LOCAL 5; ‘TODD A.K. MARTIN, Plaintiffs, CITY AND COUNTY OF HONOLULU, a municipal corporation; KUILINA RESORT COMPANY, a Hawai'i corporation, Defendants, = Bole ana Ha €1 100 my exis KUILIMA RESORT COMPANY, a Hawai'i general = partnership, Counterclaim Plaintiffs s|e Ie \ in vs. y UNITE HERE! LOCAL 5 HAWAI'I, a Hawai'i labor organizat&@: ERIC W. GILL, an individual, Counterclaim Defendants. 67 KEEP THE NORTH SHORE COUNTRY, a Hawai'i non-profit corporation; and SIERRA CLUS, HAWAI'I CHAPTER, a foreign non-profit corporation,’ Petitioners/Plaintiffs-appellants, vs. CITY AND COUNTY OF HONOLULU; HENRY ENG, Director of Department of Planning and Permitting, in his official capacity; KUILIMA RESORT COMPANY, a Hawai'i general partnership, Respondents /Defendants-Appellees. CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS 6-1-0265 & 06-1-0867) (crv. Nos. ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Moon, C.J., for the court) Petitioners Keep the North Shore Country and sierra Club, Hawai'i Chapter’s application for writ of certiorari, tiled September 8, 2009, is accepted and will be scheduled for oral argument, The parties will be notified by the appellate clerk regarding scheduling DATED: Honolulu, Hawai'i, October 13, 2009. FOR THE COURT Et gusticgf No. 28602 Unite Here! v, City and County of Honolulu -- order ‘Accepting Application for Writ of Certiorari * Considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ; and circuit Judge Chan, in place of Recktenwald, J., recused:
fa7f722c4a7526098eff7e8d1c27e67ac26c6e35c16298335cb7cd07ffcc69c6
2009-10-13T00:00:00Z
f541e822-6d94-4830-8010-e07b97121cde
Hawaii Medical Service Association v. Adams
null
null
hawaii
Hawaii Supreme Court
UBRARY wo, 28899 IN THE SUPREME COURT OF THE STATE OF KAWAI‘! HAWAII MEDICAL SERVICE ASSOCIATION, Respondent Appellant Appellant, PATRICIA £.G. ADAMS, IN HER CAPACITY AS 3)” PERSONAL REPRESENTATIVE OF THE ESTATE OF BRENT ADAMS; Pet itioner-Appellee-Appel lee, Oost Ks £2 100 40le and ‘THE INSURANCE COMMISSIONER and the DIVISION OF INSURANCE OF THE DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS; STATE OF HAWAI'I, ‘Appellees-Appellees. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. No. 071-0918) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court’) Petitioner/Appellee-Appellee’s application for writ of certiorari filed on September 8, 2009, is hereby rejected. DATED: Honolulu, Hawai‘, October 23, 2009. FOR THE COURT: Recs Co rey anor Associate Justice ‘considered by! Moon, C.J., Wakayama, Acoba, and Duffy, Bey and circuit Juage Chang, in place of Recktenwald, J, ‘recused, oat
ac61279357066bd99b4a04ea4d3e5f01cafc17b0394e94bad1ac49bb64a267f0
2009-10-23T00:00:00Z
75155ae8-d8f5-4dab-a209-be6cc4f759e1
State v. Mainaaupo. Concurring and Dissenting Opinion by J. Acoba [pdf]. ICA mem.op., filed 08/31/2007 [pdf]. Dissenting Opinion by J. Nakamura [pdf]. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/18/2008 [pdf]. Consolidated with No. 27969. S.Ct. Order of Amendment, filed 04/04/2008 [pdf].
117 Haw. 235
null
hawaii
Hawaii Supreme Court
414 FOR PUBLICATION IN MEST’S HAWAI'I REPORTER AND PACIFIC REPORTER LAW LIBRARY IN THE SUPREME COURT OF THE STATE OF HAWAI'I 000 — No. 27764 STATE OF HAWAI'I, Plaintiff-Appellee-Respondent WILLTAM MAINAAUPO, JR., Defendant~Appellant-Petitioner. (CR. NO. 05-1-1213) No. 27969 STATE OF HAWAI'I, Plaintiff-Appellee-Respondeffé, x MARK K, LOPEZ, Defendant-Appellant-Petitioné¢! (eR. NO, 05-1-1244) 3 5 Ld § Nos. 27764 & 27969, CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (cre MARCH 5, 2008 NAKAYAMA, AND DUFFY, Nos, 05-1-1213 & 05-1-1244) 33. MOON, C.J., LEVINSON, AND ACOBA, J., CONCURRING AND DISSENTING SEPARATELY OPINION OF THE COURT BY LEVINSON, J. on December 7, 2007, the defendant-appellant-petitioner Mark K. Lopez filed an application for a writ of certiorari, urging us to review the memorandum opinion (mem. op.) of the Intermediate Court of Appeals (ICA) in State v. Lopez, No. 27969 [hereinafter, “ICA's Lopez mem. op, + and, on Decenber 11, 2007, oad ‘10+ FOR PUBLICATION I WEST’ S HAWAI'T REPORTER AND PACIFIC REPORTER *#* the defendant-appellant-petitioner William Mainaaupo, Jr., filed an application for a writ of certiorari, asking us to review the ICA's memorandum opinion in State v. Maingaupo, No. 27764 {hereinaftez, “ICA's Mainaaupo mem. op.”]. Although these cases are factually unrelated, they share a common legal question: Wether the ICA erred in concluding that the circuit court of the first circuit? correctly declined to instruct the jury on the mistake-of-fact defense, as provided by Hawai'i Revised Statutes (HRS) § 702-218 (1993),? in relation to charges of the offense of unauthorized control of @ propelled vehicle, in violation of HRS § 708-836 (Supp. 2001),? where the defendant clains a mistaken belief that the person who authorized his use of the vehicle was the registered owner of the vehicle. Beyond this shared issue, Mainaaupo argues that the ICA gravely erred in concluding that £ the Honorable Karl K. Sakancto presided in Lanz, and the Honorable victoria Les Crandall presides in Mainaaups, % uns § 702-238, entitied “Ignorance or mistake as 4 defense,” provides in relevant part: “In'any prosecution for an offense, it is 2 defense that the Sccused engaged in the pronibsted conduct under ignorance or mistake of fact TES) “the Ignorance Or sistake negatives the state of mind required to Gstablign an element of the offense... .” (Formatting altered.) 3 as § 708-836, entitled “Unauthorized control of propelled vehicle,” provides as follows! (2) A person commits the offense of unauthorized control of a propelled vehicle 1f the person intentionally or knowingly exerts Unauthorszed control over another’ s propelled vehicle by operating the vehicle without the owners consent. - = igi "Ht de an aftismative defense to 2 proses this section that the defencant a) Received authorization to use the vehicle from an agent of the owner where the agent had actual or Spparent authority to authorize such use. (4)" For the purposes of this section, “owner” means the registered owner of the propelled vehicle or the unrecorded owner of the vehicle pending transfer of ownership - 2 {FOR PUBLICATION IN WEST'S HAWAI'T REFORTER AND PACIFIC REPORTER *** the circuit court correctly instructed the jury that, under HRS $ 708-836, the defendant has a legal duty to obtain consent to operate the vehicle directly from the registered owner of the vehicle. And Lopez contends that the ICA gravely erred in concluding that the remarks during closing argument by the plaintiff-appellee-respondent State of Hawai'i (hereinafter, “the prosecution"] regarding Lope2’s post-arrest silence and his failure to produce a critical defense witness to corroborate his testinony were legitimate conment on the evidence and not misconduct. We accepted Lepez’s and Mainaaupo’'s applications on January 18, 2008 and consolidated the cases for disposition the same day. For the reasons discussed herein, we hold (1) that the circuit court erred in declining to give Lopez's and Mainaaupo’ s mistake-of-fact jury instructions, (2) that the circuit court erred in instructing the jury that Mainaaupo had a legal duty to obtain consent to operate the vehicle directly from the registered owner of the vehicle, (3) that the prosecution’ s comments regarding Lopez's post~arrest silence were improper, and (4) that the prosecution's comments regarding Lopez’s failure to produce a critical defense witness were not improper. Accordingly, we vacate the judgments against Lopez and Mainaaupo and remand their cases for new trials. ‘s+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER + T. BACKGROUND A. Backaround In Lopez 1. Factual backaround In May and June 2005, Gregory S. Gittens and Mona S. Gittens were the registered owners of an automobile, a 1995 Honda Accord, and their son, Brian Harris, was the primary driver. Gregory and Harris each had a set of keys to the car, neither of which was ever lost. Aside from some damage to the front of the car, the car was in “pretty good” condition; its door locks and steering column were not damaged, and an after-market sound system, the initial cost of which was between $300.00 and $400.00, was installed in it. At around 5:00 p.m. on May 31, 2005, Harris drove the car to his workplace at Bandito’s Cantina in the Pearlridge Center, located in the City and County of Honolulu, parked the car in the mall's parking lot, locked the doors, and went to work. He left some clothes, his wallet, and over one hundred compact discs in the car. Harris finished work at about 9:00 p.m. only to discover that the car was gone. He contacted security guards and the police, reporting that the car had been stolen. Shortly after midnight, at approximately 12:45 a.m. on June 8, 2008, Honolulu Police Department (HPD) Officer Edward Hawkins was in a police cruiser at Mai'anae Mall, employing a laser device to identity and stop drivers speeding on Farrington Highway. Using the laser device, he observed a car traveling sixty miles an hour in a thirty-five mile-per-hour zone. officer YOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER * Hawkins pursued the car and activated his cruiser’s blue lights and siren, and the car pulled over immediately. Officer Hawkins exited the cruiser and approached the car to find Lopez behind the wheel. Lopez provided his Washington State driver's license but was unable to produce either the vehicle’s registration certificate or any proof of insurance. Lopez stated that the car belonged to a friend and that he did not know where the paperwork was located. officer Hawkins instructed Lopez to turn off the vehicle's ignition and, in response, Lopez retrieved what appeared to be a house key from his pocket, put his hands underneath a towel on the steering column for fifteen to twenty seconds, and turned off the ignition. Deeming the towel suspicious, Officer Hawkins called dispatch, ran a check on the vehicle's license plate number, and was informed by dispatch that the car was stolen. The officer ordered Lopez out of the car, handcuffed him, and placed him under arrest for driving a stolen vehicle. The record does not reflect whether Officer Hawkins, or any other police officer, administered warnings pursuant to Mixanda v. Arizona, 384 U.S. 436 (1966), during or after the arrest. Officer Hawkins processed the car, removing the towel and observing that all of the plastic around the steering column was gone, such that he could see its internal mechanisms. HPD officer Kepi Visoria, who assisted in processing the car, noticed that the ignition was broken and dangling and that the door locks had been “punched,” which means that the locks had been shoved in ‘t+ FOR PUBLICATION 8 MEST’ HAWAI'I REPORTER AND PACIFIC REPORTER ++ with a blunt object, such as a screwdriver, in order to open the doors. ‘The police returned the car to Harris, whereupon he noticed that, in addition to the other damage, the compact discs, the sound system, and Harris's wallet were missing, and a door window was “flexed,” which is a method by which @ person breaks into a car by flexing a window so that he can place his hand through the window and open the door, Harris never gave Lopez, or anyone else, permission to drive the car at any time, and Gregory and Mona, the vehicle’s owners, likewise never authorized Lopez, oF anyone other than Harris, to drive the car. 2. Proceedings in the circuit court 2. Charging On June 17, 2005, Lopez was charged by complaint with intentionally or knowingly exerting unauthorized control over a propelled vehicle, by operating the vehicle without the consent the owners of the vehicle, thereby of Gregory and/or Mona, committing the offense of unauthorized control of a propelle vehicle, in violation of HRS § 708-836, see supra note 3. b. Trial At the February 1, 2006 trial, the prosecution called Harris, Gregory, Mona, and Officers Hawkins and Visoria as witnesses during its case-in-chief. On cross-examination by Lopez, Officer Hawkins affirmed that, when he stopped Lopez for speeding, Lopez was calm and cooperative and that, when he asked for Lopez's license, registration, and insurance, Lopez told him that “the car belongs to a friend and he doesn’t know where the ‘++ ZOR PUBLICATION IN WEST'S EAA REPORTER AND PACIFIC REPORTER +++ paperwork is.” On redizect examination by the prosecution, the officer testified that Lopez did not volunteer his friend’s nane or address or the means by which he acquired control of the car from his friend. The deputy prosecuting attorney (DPA) asked, “pid he say anything at all about this friend except (*]well, 1 got it from a friend, I don’t know where the paperwork is("]?, to which Officer Hawkins responded, “That's all he said.” on recross-examination, the officer admitted that he could not recall whether he had asked Lopez for his friend’s name and other pertinent information. After the prosecution rested, Lopez testified on direct examination that he had grown up in Hawai'i and, in June 2005, he had returned to the islands from Seattle to visit friends and family for a couple of weeks. He acquired the Honda fron a friend, Greg Ramba, an automotive mechanic who he had known for approximately two years. lWhen Lopez arrived at Ramba’s house, he noticed four or five cars parked in the driveway. Ramba offered to let Lopez use one during his two-week stay. Lopez observed that the car’s exterior was damaged in the front, that its interior was very dirty and filled with rubbish, that its steering column was missing and covered by a towel, and that its ignition was broken, but he did not notice that the door locks were punched in. Lopez believed that the car was abandoned but did not find its poor condition suspicious because Ramba was simply a “broke mechanic." Ramba gave Lopez a key to the car. Lopez testified that he did not know that the car was stolen until he was pulled over by Officer Hawkins. ‘46+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +++ On cross-examination, Lopez admitted that he had neither seen nor asked to see any paperwork for the car and that the car key he received from Ranba was not the actual key to the car, because it looked like a house key. When questioned about Ramba, Lopez claimed that Ramba was twenty-six years old, unmarried, law abiding and honest and that he lived with his parents in Makakilo. Lopez could not, however, remember Ranba’s precise address. Lopez maintained that he believed that the car belonged to Ramba or Ramba’s family, because the car was in Ramba’s driveway and because he had observed Ramba’s family members driving the car. Lopez used the car for two days before he was arrested. c. gy euction: Lopez requested that the circuit court instruct the jury on the mistake-of-fact defense, as set forth in HRS § 702-218(1), see supra note 2, as follows: in any prosecution for an of1 ete defense that the Defensant engaged in the prohibited Gonduct under ignorance oF mistake of fact if the Ggnorance or aistate negates the state of mind required to establish an elenent of the offense. ‘Thus, for example, & person is provided s defense toa charge based on an intentional or knowing ‘State of mind, if the person is mistaken (either Feasonably, negligently, or recklessly) as to 2 fact that negates the person's state of mind required ts eotablish an element of the offense. ‘The burden is upon the prosecation to prove beyond a reasonable doubt that the Defendant was not Sonorant cr mistaken as to 2 fact chat negates the afave of mind required to establish an elenent of the offense. “If the prosecution fails to meet its burden, Then you must find the Defendant not guilty. ‘This instruction tracks Hawai'i Jury Instruction Criminal (HAWIIC) No. 7.13, available at ‘+6 FOR PUBLICATION IN WES! AMAT REPORTER AND PACIFIC REPORTER *** http://www.courts, state. hi.us/attachment /S06FD371721EBBCBEC4445E5 3c/erimjuryinstruct.pdf (last visited Dec. 28, 2007). The circuit court declined to give the instruction, citing State v. Palisbo, 93 Hawai'i 344, 3 P.3d 510 (App. 2000), and reasoning that there was “no evidence showing that [an] actual registered owner, either [Gregory or Mona], or an agent thereof, [Harris], gave permission to [Lopez;] in fact, that (possibility) was specifically rejected by the defense [and by Lopez's] testimony, and, therefore, that instruction is not supported by the evidence.” ‘The prosecution asked the circuit court give the following instructions in light of Balisbo: [THE PROSECUTION’ S] INSTRUCTION NO. 3 te is not a defense to the offense of Unauthorized Control of Propelied Venicle that the Defendant nay nave receives permission to operate the Veniele from another person, unless that person was tither the vehicle's regieteres onner cr the agent of the registered owner with either actual oF apparent, authority to authorize such use. (Formatting altered.) The prosecution argued that the circuit court should give its instruction because, under Balisbo, the prosecution is only required to prove knowing operation of the automobile without the consent of the registered owners and that, although the defendant may have been mistaken in his belief that the person who authorized his use of the vehicle was the vehicle’s true owner, he is nevertheless subject to criminal Liability. According to the prosecution, Balisbo “turns [the authorization} element into an element of strict liability.” The circuit court declined to give the prosecution's instruction, because it was confusing and not required under Balisbo. FOR PUBLICATION 1 WEST'S HAMAI'T REPORTER AND PACIFIC REPORTER 4. Closing and rebuttal arqunent During closing argument, the DPA, over the objections of the deputy public defender (hereinafter, “defense counsel” or “DPD”, commented on Lopez’s post-arrest silence: [oeA:] Again, consult your own reason and common sense, you Sone ip with a story, you know, shat you think might work. ("JOn, T-cannot find se{;] e's my friena’s Gar.1") Yeah, be does say that. Okay. Does he say Gnything mere? Bear in sind within alnutes he's out Of that car in caffe being arrested for driving that Stolen car(,] right? Did he say anything more? The Gop tela you he didn't say what his triend”'s nane was, Sisn't say the address or dicn’t say anything about the details, dign't say nothing. ‘Again, you consult your om reason and common sense about how people normaly act. A person is Stopped in a stolen car and ne really is innozent, What's the first thing he's going to do? ("]ey, wait 2 'minute, wait = minute =-[") (oro}: Your Hone, I'm sorry, I'm going to cbject (,) Conmenting on the defendant's right £0 renain ailent. (oe]:, Tete in evidence, Your Honor. (eourt): Overeuled, You may continue. (Deal: (i]Wait a minute, wait a minute, 1 got it from ay friend Greg Ranba, he lives in takakslo, he fixes cars; he told me f could drive it, wait, wait, wait.("] Again, think, you're ali adults here, you now how people react to things. that's what an innocent person would do(s] he didn’t do anything Like that. He got cuffed, he got arrested, he got taken away. Way? Because he got caught red-handed ang ne knew ie. That's why. Defense counsel responded in his closing argument: 00} <_« . [hopes] was telling you the truth, he was felting you the truth. "You know, . .« (Lopez's) actions on . . . the fed Rater, too... sn't know there’ anything wrong with the Sar, you know. Ke does tell the police it's his friend's car. And, you know, the officer hinself saysl, “well, T can't remember if 7 asked hin anything more about the friend. ("] So, you know, (ehe DPA] ts raking a big deal about [Leper] not sayingl, "Mly friend is this, he Lives there, he lives there,(*] We don’t Know if he did or he dian’t(;] the officer himself doesn’t know. (Lopez's) actions on that Gay aatver 10 ‘++ FOR PUBLICATION IN WEST’ HAWA'T REPORTER AND PACIFIC REPORTER on rebuttal, the DPA replies toe} Well, the officer didn't ask hin, that’s why he didn't say anything about the friend’s name, where he could be" soung, the details of the car, et cetera, Again, ‘Sse your common sense. The (prosecution’ s] position {a that the officer wouldn't need to a9k(i] on innocent person would just start talking and try to Eonvince the person arresting him that he didn’t do it Gna nere’s why. I'mean, don’t yeu think [that the Hire thing] 2 reasonable person would have said [is]. [hil got it from my friend, Greg Ramba, brah, go faik'to him, he'll tell youl]? Nothing like that. In addition, during closing argument, the OPA, over defense counsel's objections, commented on Lopez's failure to call Ramba during trial: (DPA:}__What_the defense is going to argue is ne didn’t know, he didn't reslly know because he didn’t know the car Mas stolen and he thought his friend Greg gave hin Dezrission to drive tne car. Okay, So iets 100% ore closely at that because that’s really sort of the Rub of this case. ALL right? First of sil, bear in mind trials are all sbout evigence, yesh, evidence. What's the evidence for Shat? [Lopez's] testimony. That’s it, that's all you 10RD) ‘Objection, Your Honor, burden shifting. {Court}: Overruled, [bpa}:| | All you have on this, his testimony that he borrowed fhe Gar, that he disn't know it wag stolen, et cetera. There's’ not one single bit of correboration for what he told you in this case, not a single bit. 10RD}: ‘Same objection, Your Honors [court]: Overrules! During rebuttal argument, the DPA, again over defense counsel's objections, returned to the same theme: (ora And, by the way, this Greg Ranba ~~ now it's erue, you Tow, the defense doesn’t have s burden, he dian’ have to eeutify, he doesn’t have to cali witnesses. Bat ne nas 2 2ignt to do so and he can put on any evidence he wants. Ar I said, the evidence for his Story ic just that, his story: Zero corroboratien. Wouldn't you have Liked to have heard fron Greg? 1peo}: Gbjectiony Your Honor, again burden shifeing. [Coure): Oversulea! [DPA]! Wouldn't you have Liked to have heard from Greg Ranbe? He says he’s 2 local boy, lives [in] Makakile with his family. Yow know, would Lt have been go hard to get Aim. |. ince court te tell you guysl, “Y]eah I lent a '+ FOR PUBLICATION IN WEST'S HAWAI'T REFORTER AND PACIFIC REPORTER + him the car, 1 told him ét was okay, and I neva know it was stolen either("}? He hinselt said Greg is law abiging, honest, nis friend. "You knox, don't you think his friend would come in? And ai] ne would nave to say is(, "Yeah, I lene him the car-[*]” I would probably vote not guilty maybe at chat point.("] Why didn't ne do that? T suggest to you one of two possibilities: There is no Greg Ranbs ar Grea Ranba would have cone in here if he called him and Sala sonething very different from what he would nave wanted Greg to say (oro) Objection, Your Honor, that calls for speculation. [Court]: Overrulea e. dudament and notice of appeal ‘The jury found Lopez guilty of the charged offense of unauthorized control of a propelled vehicle. The circuit court sentenced Lopez to an indeterminate five-year term of imprisonment, subject to a mandatory minimum term of five years as a repeat offender, entering its judgnent of conviction and sentence on May 9, 2006. Lopez filed a timely notice of appeal on June &, 2006. 3. Appellate proceedinas In his opening brief, Lopez argued that the circuit court erred by refusing to give his proposed instruction on the mistake-of-fact defense and by overruling his objections to the prosecution's remarks regarding his failure to call Ramba at trial and his post-arrest silence. Relying on Palisbo and the legislative history underlying HRS § 708-636, the ICA concluded that the circuit court correctly declined to give the mistake-of- { _ sprosecutors are. bound to refrain from expressing their personal views a5 to the defendant's quiit "State v. Marah, 68 Haw, 659, 660-61, 728 P.2d 1301, 1502 (1886) (holding that the prosecutor improperly expressed nis personal opinion chat the defendant was guilty, asserting, “I’m Sure she coanitted the crine”|; see also state v, Valdivia, 99 Hawai's 465, S54, 24-e.34 661, 680 (2001). Secauge Lopes does not argue that the OF% imptoperly gave his personal opinion by commenting cn how he would have voted Unser the cizcunstanses, the issue need not be addressed here. 12 [FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER *** fact instruction, because “the only factual mistake that would absolve Lopez of liability for the offense charged would be a mistaken belief that the registered owners of the vehicle, the Gittens[es}, had authorized Lopez's use of the Honda” and Lopez made no such claim. ICA's Lopez mem. op. at 7. The ICA also concluded that the prosecution's closing argument legitimately commented on the evidence and drew reasonable inferences therefrom. Id. at 10. ‘The ICA entered its judgment on appeal on September 10, 2007, and Lopez filed his timely application on December 7, 2007. Backaround In Meinaaupo 1. Bactual backaround In June 2005, Nancy Cordova was the registered owner of 2 1991 Nissan Maxima four-door sedan. On the night of June 4, 2005, at approximately 8:00 p.m., Cordova and her boyfriend, Brian Cornel, parked the car at Pupukea Beach Park, located on the Worth Shore of O'ahu, locked the car, and went scuba diving at shark's Cove. When they returned to the parking lot at around 9:00 pam, the car was gone, so they called the police. Two days later, in the Wai'anae area of O'ahu, Cornel observed Mainaaupo driving what appeared to be Cordova’s caz, so he followed Mainaaupo to a nearby store, whereupon Nainaaupo exited the car, locked the door with a shortened, three-quarters- of-an-inch-long key, and entered the store. Cornel called the police and, when HPD Officer George Martin arrived, informed the officer that Mainaaupo was in the store. Officer Martin entered the store and arrested Mainaaupo for unauthorized control of a 3 ‘446 FOR PUBLICATION It WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER *#* propelled vehicle. Officer Martin determined that Mainaaupo’s key, which was not a standard vehicle ignition key, could start the car because, in some vehicles that are over ten years old -- Like Cordova’s 1991 Nissan -- the ignition tends to become worn out, so that any key will start the vehicles. ‘The car was in about the same condition as when Cordova had last seen it on June 4, 2005: no items were missing, and the locks, doors, and ignition remained undamaged. Cordova did, however, discover that 2 few of the couple’s personal items -- an underwater camera case, towels, clothes, footwear, a purse, a wallet, and a backpack -- had been taken from the seating area and placed in the trunk. Cordova did not at any time give Mainaaupo, or anyone other than Cornel, authority to drive the car, and Cornel did not at any time give Mainaaupo, or anyone else, permission to drive the car either. 2. Proceedings in the circuit court a. Charging On June 14, 2005, Mainaaupo was charged by complaint with intentionally or knowingly exerting unauthorized control over a propelled vehicle by operating the vehicle without the consent of Cordova, the owner of the vehicle, thereby committing the offense of unauthorized control of a propelled vehicle, in violation of HRS § 708-836, see supra note 3. b. Trkal In the course of its case-in-chief, the prosecution called Cordova, Cornel, and Officer Martin. After the prosecution rested, Mainaaupo testified that, on June 3, 2005, he 4 ‘104 FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER *** was a passenger on a bus traveling toward his brother's house in Wai'anae, when he noticed his friend “Doug,” a fellow passenger, whom he had known for three to six months. Although he claimed to have previously socialized with Doug at Shark’s Cove, Mainaaupo could not recall Doug’s last name. Because Mainaaupo believed that Doug owned a car, he asked him why he was catching the bus, to which Doug responded by handing Mainaaupo a long, silver key from his pocket. Mainaaupo asked what the key was for, and Doug said, “(Flor my car{z] I don’t need it{.] 1 [am] joining the militaryl[,] and 1/11 be back in three months.” Mainaaupo testified that he believed that the key belonged to Doug and that the key would start Doug's car. Mainaaupo also testified that, on June 4, 2005, he called Doug, who told him that the car was located at Shark’s Cove but did not disclose its make, model, or color. At around 5:00 p.m., Mainaaupo traveled to Shark’s Cove, where he observed a number of cars in the parking lot, such that he could not determine which car belonged to Doug. Consequently, Mainaaupo waited by the bathroom and, at around 7:30 p.m., he returned to the parking lot to see only one car, Cordova’s car, remaining. Mainaaupo successfully unlocked the car’s doors with the key and, accordingly, concluded that the car belonged to Doug and that he had Doug’s permission to use the car. He drove the car to his brother's house Mainaaupo further asserted that, at around noon on June 6, 2005, he was driving to the store where he was later arrested, when he heard a cellular phone ringing in the back seat. He 45 ‘++ FOR PUBLICATION IN WEST'S HARAI'I REPORTER AND PACIFIC REPORTER ++ noticed other itens in the back seat, so he placed all of them in the trunk of the vehicle for safekeeping until Doug returned. c. Jury instructions Nainaaupo requested that the circuit court give the following mistake-of-fact instruction, which tracks the language of HANJIC No. 7.13: Th any prosecution foF an offen: Sefense that Conduct unde! Sgnorance oF required to ‘Thus, for example, & person is provided 3 defence to'a charge besed on a intentional of knowing State of mind, if the person is mistaken either Feasonably, negligently, or recklessly, as too fact that negates the person's state of mind required to establish an clement of the offense? however, 9 Teckless mistaxe would not afford s defense to a charge based on # reckless state of mind. ‘The Burden 19 upon the prosecution to prove beyond a reasonable doubt that the defendant. was not Sgnorant or mistaken es toa fact that negstes the state of mind required to establish an element of the offense. “Tf the prosecution fails to meet its burden, then you must find the defendant not guilty Mainaaupo attempted to distinguish Palisbe, arguing that that decision did not, in fact, hold a defendant strictly liable under the authorization element of HRS § 708-836. The circuit court declined to give the instruction, citing Palisbo. For its part, the prosecution requested that the circuit court give the following instruction, relying on Palisbo: “[PROSECUTION’S} INSTRUCTION NO. 7[:] Under the law relating to the offense of ‘unauthorized control of propelled vehiclel,]/[] @ non-owner driver of a vehicle has a legal duty to obtain consent to operate the vehicle directly from the registered owner of the 16 ‘t++ POR PUBLICATION IN WEST'S HAMAr'T REPORTER AND PACIFIC REPORTER *#+ vehicle.” (Formatting altered.) The circuit court gave this instruction over Nainaaupo’s objection. 4. Judament and notice of appea! ‘The jury found Mainaaupo guilty as charged, and the circuit court sentenced him to a five-year term of probation. ‘The cireuit court entered its judgment on January 18, 2006, and Mainaaupo filed his timely notice of appeal on February 15, 2006. 3. Appellate proceedings In his opening brief, Mainaaupo argued that the circuit court erred in declining to give his mistake-of-fact jury instruction and by giving Prosecution’s Proposed Instruction No. 7. The ICA disagreed, relying, as it did in Lopez, primarily on Palisbo and the legislative history underlying HRS § 708-836. ‘The ICA expressly concluded that the circuit court did not err in declining to give the mistake-of-fact instruction and implicitly concluded that the circuit court was not remiss in giving Prosecution’s Proposed Instruction No. 7. ICA’s Mainaaupo men. op. at 6-8. Accordingly, the ICA affirmed Mainaaupo’s conviction and probationary sentence. Id. at 8. Associate Judge Craig H. Nakamura dissented (hereinafter, “Nakamura dissent”], reasoning that, although the circuit court's instructions were correct under Palisbo, he disagreed with the holding in Palisbo because he believed that the mistake-of-fact defense yas available to defendants to refute the authorization element of HRS § 708-836. Nakamura dissent at 1. Judge Nakamura relied on the plain language of the statute, reasoning that: uv ‘t+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER *4* The statute requires that the defendant “intentionally OF knowingly exert (ed) unauthorized control” over Soneone else's venicie. ia ny view, 2 defendant Cannot intentionally of knowingly exert “unauthorized” control unless the defendant atended or knew that Ale of her use of a Vehicle was without the owner's Sonsent: Thus, I believe that under the most natural and comnon reading of the statutory language, pros! that the defendant knew that his of her use of the vehicle was without the owier's consent is required Ida at 5 (brackets in original). In Judge Nakamura’s view, HRS § 702-207 (1993)* “provides guidance on how to apply the mental state specified in an offense to its elements” and “creates a presumption that the ‘intentionally or knowingly’ mental state specified in HRS § 708-836 applies to both the requirement that the defendant exerted control over ancther’s vehicle and the requirement that the defendant engaged in such act without the consent of the owner.” Nakamura dissent at $-6. Judge Nakamura also noted that the statute’s legislative history is contradictory, particularly in light of committee reports related to the 1999 amendments to the statute, and, therefore, argued that the legislative history did not establish that the legislature intended to foreclose the mistake-of-fact defense with respect to defendants charged with a violation of HRS § 708-836. Id, at 6-12. Judge Nakamura also concluded that the circuit court undermined Mainaaupo’s mistake-of-fact defense by giving Prosecution’s Proposed Instruction No. 7. Id, at 14. ® ups § 702-207, entitied "specified state of mind applies to all elements,” provides’ that “[w]hen the definition of an offense specifies the State of sind sufficient for the comission of that offense, without Sistinguishing anong the elenente thereof, the specifies state of mind shall Spply fo all elements of the offense, unless contrary purpose plainly ‘Sppears.” 18 ‘10+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER +++ The ICA’s judgment, entered on September 13, 2007, vacated the circuit court’s judgment and remanded the case for a new trial. Because this disposition was inconsistent with its memorandum opinion, see ICA's Mainaaupo men. op. at 8, the ICA entered an amended judgment on October 8, 2007, which affirmed the circuit court’s judgment. Mainaaupo filed his application on December 11, 2007.* In Mainaaupo’s application, the Office of the Public Defender re that this court clarify whether the ninety-day time perio, under Hawas Rules of Appellate Procedure (HRAP) Rule 40.1(a), for filing an application for'a writ of cortiorari in this court began to run anew wen the ICA filed its anonded judgnent. Although this point is moot, insofar as Mainaaupo filed his application within 90 days of the ICA's original Jedgment, and the timeliness of nis application is thus not in question, we foreeee that this issue will probably arise in the future and, therefore, address st here Under SRAP Rule 40,1, "whore a judgnest is anended in a material and substantial respect, the tine within which an appeal from such determination nay be taten begins to run from the date of the amenduent, although where the auendaent relates only to correction of a clerical error, it does not affect the tine allowed for appeal.’* Korgak vy dawail Permanente Med. Group, 94 Hawai'i 297, 304, 12 P.sd 1238, izes (2000) (quoting interstate Pristine Co, 459 N.M24 $19, 523 (Med. 1990)) (eltipses omitted) (interpreting the tine period to £116 an application for certiorari under the former version of MRAP Rule 40.1 and holding that the tine period conmences from the ICA's original order denying s motion for reconsideration, because the anended order denying reconsideration only corrected clerical errors). In this casey the ICA’s anendeent did not simply eliminate clerical errors but, rather, changed the fundanental disposition of this matter from a "vacste and Fenand* to an affirmance. The anendnent, although by no means surprising Given the ICh's menorandum opinion affirming the circult court's judgment, was both material and substantive and, accordingly, we believe that Mainaaupo’« Eine period within Which to file his application Began to run anew when the TA filed its amended Judgsent. 19 ‘4+ FOR PUBLICATION IN WEST’ § HAWAI'I REPORTER AND PACIFIC REPORTER #*# II, STANDARDS OF REVIEW AL Certiorart ‘The acceptance or rejection of an application for a writ of certiorari is discretionary, HRS § 602-59(a) (Supp. 2007). In deciding whether to accept 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 this] court, federal decisions, or [the ICA's} own decision(s]” and whether “the magnitude of those errors or inconsistencies dictat(es] the need for further appeal.” Id. $ 602-59(b). 8. dury Instructions “the standard of review for a trial court's issuance of refusal of a jury instruction is whether, lien read and considered as a whole, the instructions Given are prejudicially insufficient, erroneous, Inconsistent, or misleading.” gtaue'v, Balanza, 93 Wawai'i 279, 283, 1 Pi3d 261, 265 (2000) {quotation fad internal quotation marks omitted). *[E]reoneous instructions are presumptively haraful and are a Ground for reverssi unless it affirmatively appears fron the record as a whole thet the error wae not prejudicial.” stave vs Sia, 32 Hawal't 61, 69, 967 24959, 967 (1999) (quoting Stats v. Pinero, 70 Haw 509, $27; 778 P.2a 104, 716 (29891 {quotation onitted)} (brackets in’ original). In other words, lelzror is not to be viewed in isolation and considered purely in the abstract. rt must be Sxamined in the Light of the entire proceedings Gnd given the effect which the whole record Showa It to be entitled. In that context, the Zeal question becones wbether there i= 2 Feasonable possibiiiey that error may have Contributed co conviction. de (quoting State vs Keard, 64 Haw. 193, 194, 638 Beda 307, 308 (1961) (citations omictes) |. 20 ‘tee FOR PUBLICATION IN MEST’ HAMAI'T REPORTER AND PACIFIC REPORTER State vy. Van Dyke, 101 Hawai'i 377, 383, 69 P.3d 88, 94 (2003) (quoting State v. Aganon, 97 Hawai'i 299, 302, 36 P.3d 1269, 1272 (2001). Statut: wo [The interpretation of a statute is a question, of law reviewsble de nove." Be nauai's i, 10, 928 P24 603, 882 (19961 | Tauoein Gravv. Adela. dir of the coure, 8¢ Hawai 13s, 1 531 F.2d 560, S86 (1997) [)] (sone brackets added and sone in original) Furthermore, our statutory Construction 4s guided by established rules: hen construing 2 statute, our foremost obligation 1a to ascertain and give effect to the intestion of the legislature, which is te be Obtained primarily from the language contained in the statute itself. And we mse read statutory Language in the context of the entire with its purpese. Seay, 84 awas"t at 148, 932 P.24 at 590 (quoting Seats ¥. Tevomsra, 60 await 8, 18-19, 904 P.24'893, 503-04 {1995)) =. (footnote omitted). Van Duke, 101 Hawai'i at 383-84, 69 P.3¢ at 94-95 (quoting State va -Rauch, 94 Hawai'i 315, 322-23, 13 P.3d 324, 331-32 (2000)) (some ellipses added and some omitted) (brackets omitted) (formatting altered). [Albsent an absurd or unjust result, gee State, 106 Hawai'i 71, 77, 85 2.30 178, 18 (2004), this court is bound to give eftect to the plain eaning of Gnaniguovs statutory language and may only Fesort to the use of legislative history when interpreting an smbigueas statute... - Valdivia, 95 Mawai't at) 472, 24 P.3d (at) 666 ‘Thompson v, Kvo-Ya Cou, 112 Hawai'i 472, 475, 146 P.3d 1049, 1052 (2006); accord Courbat v, Dahana Ranch, Inc., 111 Hawai'i 254, 261, 141 P.3d 427, 434 (2006); see also State v. Kupihea, 98 Hawai'i 196, 206, 46 P.3d 498, SOB (2002) ("*[W]e do not resort to legislative history to cloud a statutory text that is clear.'” 21 ‘s+ FOR PUBLICATION IN WEST'S HANAI'T REPORTER AND PACIFIC REPORTER ++ (Quoting State v. Kalama, 94 Hawai'i 60, 64, @ P.3d 1224, 1228 (2000) .)). D. Prosecutorial Misconduct “Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction.” State veIuli, 101 Hawai'i 196, 204, 65 P.3d 143, 151 (2003). “Misconduct of a prosecutor may provide grounds for a new trial Af the prosecutors actions denied the defendant a fair trial.” Id III. prscussion A. The ICA Erred In Concluding That The Circuit Court Correctiv Instructed The Jury On The : =of= Defense in Lopez And Mainaaupo. Lopez and Mainaaupo argue that the circuit court erred by declining to give their respective HRS § 702-218 mistake-of- fact instructions because each claimed a mistaken belief that the person who consented to his use of the vehicle was the registered owner of the vehicle. Mainaaupo also argues that the circuit court erred by giving prosecution's Jury Instruction No. 7 to the effect that, pursuant to HRS § 708-836, a defendant is subject to a legal duty te obtain consent to operate a vehicle directly from the registered owner of the vehicle. The prosecution argues, and the ICA agreed, that Palisho and the legislative history underlying HRS § 708-836 dictate that the mistake-of-fact defense 22 ‘s+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER +++ was not available to either Lopez or Mainaaupo.’ See ICA's Loven men. op. at 5-8; ICA’s Mainaaupo mem. op. at 6-8. 1. Balisho is distinguishable In Paligbo, the defendant, Palisbo, testified that his friend, Kanchokula, arrived at Palisbo's home in a van and that Kanohokula indicated that the vehicle belonged to a cousin, 93 Hawas'i at 349, 3 P.3d at S15. At Kanohokula’s request, Palisbo drove the vehicle, whereupon the police stopped the van and arrested both Palisbo and Kanohokula. Id. The vehicle did not belong to Kanohokula’s cousin but was, in fact, stolen. Id. at 351, 3 P.3d at 517. Palisbo was charged with unauthorized control of a propelled vehicle, in violation of HRS $ 708-836, id. at 347, 3 P.3d at 513, and he sought to assert the mistake of-fact defense at trial, dd. at 354, 3 P.3d at 520, The circuit court refused to give Palisbo’s proposed mistake-of-fact instruction, and he challenged the circuit court's ruling on appeal. Id, The Palisbo court held that the circuit court correctly declined to give the mistake-of-fact instruction, reasoning that: Here, the only factual mistake which would have absolved (balisbo) from Lisbility onder the stetute 7 ane prosecution's position is difficult to reconcile with its coments during rebuttal argunent in Lopez. In emphasizing that Lopez had failed co Corroborate his defense that “Re Fecelved permission to use the car from Rasba, the DPA renarked that, if Lopez had called fanba to testify and if Ranba had Sdniteed that ne had ent Lope: the car and that he did not know that the car ae stolen, then the DPA would perhaps have voted not guilty if given the Spportunity.. The purpose of such testimony from Rambs would have bean £9 Support and reinforce Lopes's defense that ne had Been unaware that Raaba was ot the vehicle's owner and that he hag thus been mistaken a5 to the icentity Of the car’a true owner. The OPA's implicit concession that he would Potentially vote nov guilty based on chat defense stance in sharp contrast to The stance ne took during the settionent of jury instructions that the defense was simply onavailable. 23 ‘** FOR PUBLICATION IN WEST'S HANAI'T REPORTER AND PACIFIC REPORTER +++ would be 2 mistaken belief that the ower himself nad authorized [the dlefendant’s use of the vehicle [Palisbo! dia not adduce evidence suggesting he had obtained the consent of ... . the van’s [actual Fegisterea) guuerl] to operate it. If (Palisbol had resented evidence tending to show that he was under the mistaken belief that he camer had aushorizad him to operate the vehicle, then the jury would have had £5 be instructed on the mistake of fact defense, However, (Palisbe’s) defense hag nothing to do with believing thet he himself had the owner’ = Tadeed, on appeal, (Palisbo) maintains that fake of fact instruction should have been given Since *he believed that Kanohotulars use of the venisie was lawful.’ (eephasie added.) Id. at 355, 3 P.3d at 521 (emphases in original). The prosecution relies on the Palisbo court's conclusion that, “Here, the only factual mistake which would have absolved [Palisbo] from liability under the statute would be a mistaken belief that the owner himself had authorized [the dlefendant’s use of the vehicle.” Id, In the prosecution's view, the only mistake that could have absolved Lopez or Mainaaupo of Liability under HRS § 702-218 would be a mistaken belief that the true owners of the vehicles had themselves given ‘Lopez and Mainaaupo permission to drive the cars. We do not, however, read Palisbo so broadly. The sentence cited by the prosecution is prefaced by the word “here” and proceeds to address the specifics of the case, See id. As Lopez and Mainaaupo observe, the defendant in Palisbo plainly admitted that he was aware that the person who had authorized his use of the vehicle was not the vehicle's owner but, rather, merely the cousin of the alleged owner. Id. at 349, 3 P.3d at 515. Thus, Palisbo did not claim a mistaken belief that he had permission to use the vehicle from the person who owned the car. See id. That is, however, precisely the claim advanced in the present matter 24 44+ OR PUBLICATION IN WEST'S HAWAL'T REPORTER AND PACIFIC REPORTER *¥* by both Lopez and Mainaaupo. Therefore, in our view, Balisho simply does not speak to the specific question before us. Putting Balishe aside, we now turn to the plain language of HRS § 702-218. 2. The plain Languase of HAS $ 702-218 dictates that Lopez_and Mainaauno were cach entitled to assert the mistake-of-fact defense with respect to the duthorization clenont of HRS 6 708-076 HRS § 702-218 provides in relevant part that tisa defense that the accused engaged in the prohibited conduct under ignorance or mistake of fact if . . . [t]he ignorance or mistake negatives the state of mind required to establish an element of the offense. . . ." See supra note 2 (formatting altered). “The elements of an offense are such (1) conduct, (2) attendant circumstances, and (3) results of conduct, as. . . [alre specified by the definition of the offense... .” HRS § 702-205 (1993) (formatting altered). In the present matter, Lopez and Mainaaupo were each charged with unauthorized control of a propelled vehicle, in violation of HAS § 708-836, see supra note 3, which provides in relevent part that “[a] person conits the offense of unauthorized control of a propelled vehicle if the person intentionally or knowingly exerts unauthorized control over another's propelled vehicle by operating the vehicle without the owner's consent,” HRS § 708-636(1). “Owner” is defined to include the “registered owner” of the vehicle. id. $ 708-836(4) Accordingly, the elements of the relevant iteration of HRS § 708-836 are (1) the person’s conduct of exerting control over a thing by operating it, (2) the attendant circumstance of the thing being “ancther’s” (ise., the registered owner's) propelled 25 ‘406 FOR PUBLICATION INV WEST’ S HAWAI'T REPORTER AND PACIFIC REPORTER +++ vehicle, and (3) the attendant circumstance of the person's control/operation being without the registered owner's consent (hereinafter, “the authorization element”], see State v. Aiwohi, 109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005) ( ‘(Alay circumstances defined in an offense that are neither conduct nor the results of conduct would, by default, constitute attendant circumstances elements of the offense.’” (quoting State 107 Hawai'i 159, 172, 111 P.3d $4, 67 (App. 2005)))1 cf. dd Moser, at 128, 123 P.3d at 1223 (holding that, under the manslaughter statute, the defendant did not recklessly cause the death of another “person,” because the attendant circumstance of “personhood” did not exist at the time the defendant engaged in the allegedly culpable conduct of prenatally ingesting methamphetamine, insofar as the defendant's inchoate child, who died after being born, was a fetus at the tine of the defendant's proscribed conduct, and “a fetus is not a ‘person’ within the plain meaning of the statute”); State v, Valentine, 93 Haw. 199, 207, 998 P.2d 479, 487 (2000) (holding that the elements of a firearm possession statute include the conduct of @ person possessing 2 thing and the attendant circumstance of the thing exhibiting the attributes of a firearm). With respect to the authorization element, Lopez and Mainaaupo each assert a mistaken belief that the person who authorized his use of the vehicle was the registered owner of the vehicle. Assuming that HRS § 708-836’s intentional or knowing state of mind applies to the authorization element, an attendant circumstance, gee HRS § 702-205, the mistake alleged by both Lopez and Mainaaupo would 26 ‘166 FOR PUBLICATION IN WEST'S HAWA1'T REPORTER AKD PACIFIC REPORTER “negative(] the state of mind required to establish [the authorization] element of the offense.” See supra note 2. Thus, the question becomes whether the state of mind specified by the statute applies to the authorization element. We agree with Judge Nakamura that HRS § 702-207 provides guidance in addressing this question, See Nakamura dissent at 5-6. HRS § 702-207, entitled “specified state of mind applies to all elements,” provides that, “[wJhen the definition of an offense specifies the state of mind sufficient for the commission of that offense, without distinguishing among the elements thereof, the specified state of mind shall apply to all elements of the offense, unless a contrary purpose plainly appears.” The state of mind prescribed by HRS $ 708-836 is intent ox knowledge, and the statute does not distinguish among its elements. See supra note 3. Accordingly, the intentional or knowing state of mind required by HRS § 708-636 applies to the authorization element, unless the statute “plainly appears” to hold that state of mind inapplicable to the authorization element, see supra note 4. In our view, HRS § 708-836 does not, on its face, evidence a clear intent to hold its expressly articulated requisite state of mind inapplicable to the authorization element but, on the contrary, provides that a person commits the offense if he “intentionally or knowingly exerts unauthorized control,” see supra note 3. See Kalama, 94 Hawai‘ at 66, 8 P.3d at 1230 (holding that the intentional state of mind set forth in an indecent exposure statute applied to all elements of the offense, because “on its face” the statute did 20 64 FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +++ not “‘distinguish among [its] elements’ (quoting HRS § 102-207)}; State v. Bone, 78 Hawai’ 262, 265-66, 892 P.2¢ 455, 458-59 (1995) (holding that the intentional mind state set forth in a fourth degree criminal property damage statute applied to each of its elements, because “no contrary purpose ‘plainly appears’ on the face of the statute” (quoting HRS § 702-207))7 In re Doe, 76 Hawai'i 85, 92, 869 P.2d 1304, 1311 (1994) (holding that, inasmuch as the intentional state of mind is prescribed by a harassment statute and “no contrary purpose ‘plainly appears’ on the face of the statute,” the intentional state of mind “is the requisite state of mind for each of the elements set forth in [the statute]” (quoting HRS § 702-207)). As Judge Nakamura observed, “a defendant cannot intentionally or knowingly exert ‘unauthorized’ control unless the defendant intended or knew that his or her use of the vehicle was without the owner's consent,” and, consequently, “under the most natural and common reading of the statutory language, proof that the defendant knew that his or her use of the vehicle was without the owner's use is required.” Nakamura dissent at 5. Nevertheless, the thrust of the prosecution’s argument, in light of its heavy reliance on legislative history, appears to be that a “contrary purpose plainly appears” in the legislative history of HRS § 798-836 sufficient to render the statute's expressly recited state of mind inapplicable to the authorization element. This court may not, however, rely upon a statute's legislative history, unless the statute’s language is ambiguous 28 ‘4+ FOR PUBLICATION IN WEST'S EAKAI'T REPORTER AND FACIFIC REPORTER *+* or produces an absurd or unjust result, see Thompson, 112 Hawai'i at 475, 146 P.3d at 1052, because, as this court has explained: ‘vie cannot change the language of the statute, supply avant, of enlarge upon if in order to make it salt a Gereain state of facts, Wwe do not legislate or make Tees. Even when the court is convinces in ste oun find that the Legislature really meant and intended Sonething not expressed by the phraseology of the Act, it has no authority to depart from the plain meaning of the language used.” State v. Dudoit, 90 Hawai'i 262, 271, 978 P.2d 700, 709 (1999) (quoting, inter alia, State v. Mever, 61 Haw. 74, 77-78, 595 F.2d 288, 291 (1979)) (emphasis omitted); see also State v. smith, 103 Hawai'i 228, 233, 81 P.3d 408, 413 (2003); State v. Mueller, 102 Hawai'i 391, 394, 76 P.3d 943, 946 (2003). The prosecution does not argue, and we do not discern, that the language of HRS § 708-836 is ambiguous with respect to the applicability of the state of mind requirement to the authorization element. See ICA’s Lopez men. op. at 5-8; ICA's Mainaaupo men. op. at 6-8. To the contrary, the prosecution affirmatively characterizes the statute's “language” as “plain,” and, as we mentioned previously, the statute provides that the applicable state of mind for the authorization element is intentional or knowing. CE, State v, Klie, 116 Hawai'i 519, 525, 174 P.3d 358, 364 (2007) (questioning the prosecution’s “resort to an examination of the legislative history” of a street solicitation statute, because “the prosecution did not assert that [the statute] is ambiguous”). Mor has there been any suggestion by the prosecution that a straightforward reading of the statute would yield an absurd or unjust result. 23 In short, because the language of HRS § 708-836 plainly and unambiguously applies its prescribed state of mind to the authorization element and because 2 forthright reading of the statute does not appear to produce an absurd or unjust result, we are not at liberty to rely upon legislative history in interpreting the statute, see Thompson, 112 Hawai" at 475, 146 P.3d at 1052, even if the history may show that the legislature ‘really meant and intended something not expressed by the phraseology of the (statute],’” see Dudoit, 90 Hawai'i at 271, 978 P.2d at 709 (quoting, inter alia, Mever, 61 Haw. at 77, 595 P.2d at 291); see also T-Mobile USA, Inc. v. County of Hawai'i Planning Comm'n, 106 Hawai'i 343, 352-53, 104 P.3d 930, 939-40 (2005) (holding that, inasmuch as this court has previously recognized a statutory term “to be plain and unambiguous, (this court 4s} not at liberty to look beyond the statute’s plain and obvious meaning”); State vs Yamada, 99 Hawai'i 542, 952-53, 57 P.3d 467, 477-78 (2002) (“Inasmuch as the statute’s language is plain, clear, and unambiguous, our inguiry regarding its interpretation should be at an end.”); Kalama, 94 Hawai'i at 64, 8 P.3d at 1228 (declining to rely upon the legislative history of an indecent exposure statute in determining whether the statute encompassed nude sunbathing, because the statute was not ambiguous) « ‘To summarize, because HRS § 708-836 does not “plainly appear” to render its specified state of mind inapplicable to the authorization element, the intentional or knowing states of mind apply to the authorization element. See supra note 3; cf. 30 ‘104 FOR PUBLICATION TN WEST'S WANAI'T REPORTER AND PACIFIC REPORTER +** Nakamura dissent at 5-6. Consequently, we hold that a defendant prosecuted under HRS § 708-836 may assert the mistake-of-fact defense with respect to the authorization element, where he claims that he mistakenly believed that the person who authorized his operation of the vehicle was the vehicle’s registered owner, because such a belief would potentially “negative(] the state of mind required to establish (the authorization] element of the offense.” See aupra note 2. In this case, Lopez and Mainaaupo requested that the circuit court instruct the jury on the mistake-of-fact defense, because each testified to his belief, which each later realized was mistaken, that the person who consented to his use of the vehicle (Greg Ramba and Doug, respectively) was the registered owner of the vehicle. The prosecution argues that, while Mainaaupo may have testified that Doug gave him permission to use a car, Mainaaupo did not testify that Doug gave him permission to use Cordova’s Nissan Maxima in particular and, therefore, whatever permission Mainaaupo may have allegedly received from Doug could not have extended to the operation of Cordova’s Nissan Maxima, Nevertheless, Mainaaupo did testify that Doug told him that the car was located at Shark’s Cove, that he waited on the evening of June 4, 2005 until only one car remained in the parking lot at Shark’s Cove, and that the key he received from Doug unlocked the doors to that car. ‘Thus, although Mainaaupo admitted that Doug did not disclose the make or model of the car, he did articulate the process of elimination by which he attempted to identify the car that he claimed to believe belonged 31 ‘+4 FOR PUBLICATION IN’ WEST’ S HAWAI'I REPORTER AND PACIFIC REPORTER +++ to Doug. However weak Lopez and Mainaaupo’s testimony may have been, we think that they were each entitled to have the circuit court give their mistake-of-fact jury instructions. See State v Hixonaka, 99 Hawai'i 198, 204, 53 P.3d 806, 812 (2002) (**IA] defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the jury, no matter how weak, inconclusive, or unsatisfactory the evidence may be.’” (Quoting State v, Maciega, 60 Hawai'i 172, 178-79, 907 P.2d 758, 764-65 (1995).)). Thus, the circuit court erred in declining to give their requested instructions. ‘The circuit court did, however, over Mainaaupo's objection, give Prosecution’s Proposed Instruction No. 7, which directed that, “(ulnder the law relating to the offense of ‘unauthorized control of propelled vehicle[,]’[] a non-owner of a vehicle has a legal duty to obtain consent to operate the vehicle directly from the registered owner of the vehicle.” We agree with Judge Nakamura that the instruction essentially mandated that, “[b]ecause the defendant ha[d] the duty of obtaining consent directly from the vehicle’s registered owner, the defendant [was] subject to criminal liability if he or she failled] to do so,” and, therefore, implied that “it is no defense that the defendant obtained consent from someone the defendant believed was the vehicle’s owner if the belief turns out to be wrong.” Nakamura dissent at 3, Prosecution’s Proposed Instruction No. 7 was both “prejudicial and misleading because it improperly undermined Mainaaupo's mistake-of-fact defense.” Id. 32 ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER *+* at 147 see also Yan Dyke, 101 Hawai'i at 383, 69 P.3d at 94. Consequently, the circuit court further erred in giving this instruction to the jury. Because there is a reasonable possibility that the circuit court's erroneous jury instructions contributed to both Lopez's and Mainaaupo’s convictions, we vacate the judgments against them and remand their cases for new trials. See van Dyke, 101 Hawai'i at 383, 69 P.3d at 94. B. Lopez's Allegations Of Improper Prosecutorial Comment The ICA erred by failing to conclude that the DPATs improper comments on Lopez's post-arrest i nable doubt, Lopez argues that the prosecution’s comments during closing and rebuttal argument regarding his post-arrest silence went beyond legitimate comment on the evidence, such that he is entitled to a new trial. In evaluating whether improper prosecutorial comment warrants anew trial, we consider the following three factors: “*({1) the nature of the conduct; (2) the promptness of 2 curative instruction; and (3) the strength or weakness of the evidence against the defendant.” State vi. Hauge, 103 Hawai" 38, 47, 79 P.3d 131, 140 (2003) (quoting State vs Pacheco, 96 Hawai'i 83, 93, 26 P.3d 572, 582 (2001)). a. The nature of the DPA‘s conduct Lopez contends that the DPA’s remarks during closing and rebuttal argument improperly commented on his post~arrest silence and, therefore, violated his right to remain silent. “there is nothing more basic and more fundamental than that the accused has a constitutional right to remain silent, and the 3 ‘e+ FOR PUBLICATION I WEST'S HAWATT REPORTER AND PACIFIC REPORTER +++ exercise of this privilege may not be used against him." state ve Bblo, 57 Haw. 428, 424, $58 P.2d 1012, 1016 (1976). Although the record does not reflect whether Lopez received Miranda warnings from Officer Hawkins or any other police officer at the time or after he was arrested, we hold that the right against self-incrimination attached at least ae of the time of the arrest,” “because the right to remain silent derives from the Constitution and not from the Mixanda warnings themselves.” United States v. Velarde-Gomez, 269 F.3d 1023, 1029 (9th cir. 2001) (en banc) (citing United States v. Whitehead, 200 F.3d 634 (9th Cir. 2000)}. “Any other holding would create an incentive for arresting officers to delay interrogation in order to create an intervening ‘silence’ that would then be used against the defendant.” United States v. Moore, 104 F.3d 377, 386 (D.C. Cir. 1997) 1° § the eight to remain silent resides in the fifth anendnent to the united States Constitution, gaa U.S. const, amend. V (No persons c+ shall be Conpelied in any crimiasl cage tose # witness against ninself’. which applies to the states through the fourteenth amendment, 332, Hogan, "S96 0-5-1, 6 (1964) ("We hold today that the Fitth Amendments exception from compulsory self-incrimination is also protected by the Fourteenth Anendnent against abriagnent by the States."), and in article 1, section 10 of the Hawai'i Constitution, gee Haw. Const- art. 1, $10 ("(Nlor shall any person be compelled in any criminal case to be a witness against onesel!. * mie the DEA’s conments could also be interpreted to refer to Lopes's precarrest silence, Lopes does not raise that point on appeal, and, therefore, We do aot address it, As an aside, courts are divided on whether the Government may comestt on 3 defendant"s prevarrest silence. Ses Combe v Seler 208 Fs34°269, 282 (6th Cir. 2000) (eotlesting cases). wo Aub see United States v Frazier, 408 F.3¢ 1102, 1111 (ath cir. 2005) (concluding that the prosecution could comment on the’ defendant’ s post-arrest, pre-Mizanda silence because, “{a]lthough (the defendant] was under arrest, Phere was no governmental action at that point inducing his silence"|) Moore, lof F.3d at 395 (Silberman, J., concurring) (asserting that the rationele of Hlecchar ¥ Wois, 4590-8, 603" (1962) (per curiam) ~~ which held that. t continsed. 34 ‘e+ FOR PUBLICATION JN WEST'S HAKAI'T REPORTER AND PACIFIC REPORTER + Lopez takes issue with the DPA’s comments pertaining to what an “innocent person” would have done in Lopez's situation when arrested by Officer Hawkins. The DPA’s remarks related to the testimony of Officer Hawkins, who confirmed on cross~ examination by defense counsel that, when he stopped Lopez for speeding, Lopez told him, “(T]he car belongs to a friend and he doesn’t know where the paperwork is.” On redirect examination by the DPA, the officer testified that Lopez did not disclose his friend’ s name or address or how he might have acquired the car from his friend. The DPA asked, “Did he say anything at all about this friend except [‘]well, I got it from a friend, I don’t know where the paperwork is(']?,” to which Officer Hawkins responded, “That’s all he said.” On recross-examination, the officer admitted that he could not recall whether he asked Lopez for “his friend’ s name and information Like that.” After sunnarizing Officer Hawkins’s testimony during closing argument, the DPA asserted, “A person is stopped in a stolen car and he really is innocent, what’s the first thing he’s going to do?” Lopez objected on the ground that the DPA's comments offended his right to remain silent, but the DPA countered that Officer Hawkins’s testimony was “in evidence,” and the circuit court overruled the objection. Continuing, the DPA 18(. . seonttnued) government may use the defendant's post-arrest, pre-izanda silence for ‘because, st that point, the defendant has not been assured that Ris silence will not be used against nim +~ snculd be extended to the proposition that the government may affirmatively use the defendant’ s post- Errest, pre-Wigange silence as substantive evidence of guilt); United States, yuRiverg, 94¢ F-26 1563, 1567-68 < n.11 (2lth cir. 1991) ("(2)he government may comment on a defendant's silence when it occurs after arrest, put before Migansa warnings are given.” (Citing Pletcher, #58 0.5. 633-1)- 35 FOR PUBLICATION IM WEST’ S HAWAI'T REPORTER AND PACIFIC REPORTER asserted that an “innocent person” in Lopez’s situation would have told Officer Hawkins, “[*JWait a minute, wait a minute, 1 got it from my friend Greg Ramba, he lives in Makakilo, he fixes cars, he told me 1 could drive it, wait, wait, wait.(’]" During his closing argument, defense counsel raised Officer Hawkins’ s inability to remember whether he ked Lopez for information regarding his friend, apparently to imply that Lopez did not disclose that information because Officer Hawkins probably did not ask. On rebuttal, the DPA responded that “the officer wouldn't need to ask{+] an innocent person would just start talking and try to convince the person arresting him that he didn’t do it,” because a “reasonable person” in Lopez's position would have said, “[]I got [the car] from my friend, Greg Ramba, brah, go talk to him, he‘ll tell you.["}" According to the OPA, Lopez said “(njothing like that.” The prosecution asserts that defense counsel’ s questions during his cross-examination of Officer Hawkins regarding what Lopez did say about his friend opened the door to the DPA’s inquiry on his redirect examination of the officer with respect to what Lopez did not say. Lopez responds that he takes issue not with the DPA's redirect of the officer but, rather, with the manner in which the DPA commented on that evidence during closing and rebuttal argunent. The prosecution asserts that the DPA’s comments on Officer Hawkins’s testimony during closing and rebuttal argument were “entirely proper,” because the testimony was “in evidence," and, as such, the DPA could “properly discuss the import of [Lopez's] failure to provide 36 +9 FOR PUBLICATION IN WEST’ S HAWAI'T REPORTER AND PACIFIC REPORTER +++ (officer) Hawkins with his friend’s name, address, and other information.” Although a prosecutor has wide latitude in commenting on the evidence during closing argument, it is not enough that 2 his conments are based on testimony “in evidence”; his comments must also be “legitimate.” See State v, Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209 (1996) (*[A] prosecutor, during closing argunent, is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence. It is also within the bounds of legitimate argument for prosecutors to state, discuss, and comment on the evidence . . . .” (Citations onitted.)). A prosecutor's comments are legitimate when they draw “reasonable” inferences from the evidence. See Juli, 10 Hawai'i at 208, 65 F.3d at 155 ("The prosecution is permitted to draw reasonable inferences from the evidence... .”). In this case, the DPA’s comments were not “legitimate” because, in contravention of Lopez's fundamental right to remain silent, see Alo, 57 Haw. at 424, 558 P.2d at 1016, the DPA argued the unreasonable inference that Lopez was guilty in light of his post-arrest silence, that is, his failure to act like an “innocent person” and disclose to Officer Hawkins Ranba's name, address, and occupation. See Whitehead, 200 F.3d at 638-39 (holding that the district court erred in permitting the prosecutor to comment on the defendant’s post-arrest silence during closing argument by remarking that, after the defendant was arrested, he failed to ask “what is going on here?,” “Why T 3 ‘44 FOR PUBLICATION IN WEST’ § HAKAI'T REPORTER AND PACIFIC REPORTER #*+ am being treated like this?,” and “hy am I being arrested?” and by commenting that “the defendant didn’t say a word because he knew"); United States v. Branson, 756 F.2d 752, 753-54 (9th Cir. 1985) (holding that the prosecutor improperly referred to the defendant's post-arrest silence during closing argument by asserting that an “honest person” in the defendant’s position would have told the law enforcenent officer, “I don’t know this was counterfeit, I just got it somehow,” and that the defendant refused to tell law enforcenent where he received the counterfeit bills); Scarboroush v. Arizona, $31 F.2d 959, 961 (Sth Cir. 1976) (finding “fundamental exzor” where the prosecutor conmented during closing argument that the defendant renained silent after he was arrested and that, “if he were arrested for armed robbery, he would have said something -- if he were not guilty"); ef. State v. McCrory, 104 Hawai'i 203, 208, 87 P.34 275, 280 (2004) (observing that a defendant “has no affirmative duty to proclaim his innocence”). ‘The prosecution cites two cases in support of its azgunent that the DPA's conments were “entirely proper,” to wit, Haue and State v. Brigaman, 316 N.E.2d 121 (I11. App. ce. 1974). In Hauge, this court concluded that, because the defendant undertook to “*explain away’ much of the prosecution's evidence,” he “virtually invited” the prosecutor to cross-examine him and later comment, during rebuttal argument, on his failure to “explain away” the DNA evidence showing that his blood was found at the scene of the crime. 103 Hawai'i at 57, 79 P.3d at 150, In Brigaman, the Illinois Appellate Court held that, because the 38 ‘s+ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER ++ defendant volunteered on cross~examin tion that he had been “smoking reefers” on the night in question, “he assumed the risk that his testimony would be subject to elaboration by cross- examination or conment in closing argunent” and, therefore, the prosecutor's conment during closing argument that “he had smoked some reefers” was proper. 316 N.8.2d at 127. hile these cases permit prosecutorial comment on issues raised by the defendant, We conclude that they are distinguishable. They do not suggest, much less hold, that a prosecutor may argue to the jury that a defendant’s failure to disclose facts to the police during and following his arrest may be equated with guilt, which is precisely what the DPA did in the present matter by suggesting that the “import of [Lopez's] failure to provide (Officer) Hawkins with his friend’s name, address, or other information,” was that Lopez “didn’t do” “what an innocent person would do.” In light of the language employed by the DPA, we think that the jury would “naturally and necessarily” interpret his remarks during closing and rebuttal argument as comments on Lopez's post-arrest silence and that the comments are consequently “improper.” See State v, Wakisaka, 102 Hawai'i 504, 515-16, 78 P.3d 317, 328-29 (2003) (holding that, “given the language used, the jury would naturally and necessarily interpret the prosecution’s rebuttal argument as a comment on [the defendant's] failure to testify,” where the prosecutor commented during closing argument that the defendant would know certain facts and that, “(4)£ he doesn’t tell us, we can only look to (the evidence} and see what [the evidence] tells us”); State vw 39 FOR PUMLICATION TN WEST'S HAWAL'E REPORTER AND PACIFIC REPORTER + Vild, 746 P.2d 1304, 1348 (Ariz. Ce. App. 1987) (holding that the prosecutor improperly conmented on the defendant's post-arrest silence because, “[w]hile the prosecutor did not flatly state that the (defendant) remained silent after his arrest, his description of what an innocent person would have said when first informed of his arrest for cocaine-related offenses implied that this is what the (defendant) would have said at the time of his arrest or shortly thereafter if his testimony had been true” (emphasis onitted)). Accordingly, the ICA erred in concluding that the DPA was legitimately conmenting on the evidence and drawing reasonable inferences therefrom. ICA’s Lopez mem. op at 10. The nature of the DPA's conduct favor of granting Lopez a new trial. See Wakisaki, 102 Hawai'i at $15-16, 78 P.3d at 328-29. >. and ‘the strength or weakness of the evidence against Lopez, Generally, this court considers “a curative instruction the first factor -- weighs in sufficient to cure prosecutorial misconduct because [it) Presune[s] that the jury heeds the court’s instruction to disregard improper prosecution comments.” Id. at 516, 78 P.3d at 329, In this case, however, the circuit court declined to give a curative instruction when Lopez objected to the DPA’s conments and, instead, overruled the objection. Thus, the circuit court's failure to give any form of curative instruction militates in Lopez's favor. See id. (holding that the circuit court’s failure to give a curative instruction in response to the 40 ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER +1 prosecution's comment on the defendant's decision not to testify at trial weighed “heavily” in the defendant's favor); State v, Bogan, 91 Hewai'i 405, 415, 984 P.2d 1231, 1241 (1999) (concluding that the second factor weighed “heavily” in favor of the defendant, because the circuit court did not give a curative instruction in the wake of the defendant’s objection to the prosecutor's “inflanmatory” argument) « Nevertheless, the prosecution argues that the evidence against Lopez was strong because, pursuant to HRS § 708-836, see supra note 3, it “only” had to prove that he intentionally or knowingly operated the car without first obtaining Gregory's or Mona's consent and because Lopez admitted those facts. The prosecution's argunent rests on the false premise that it was not subject to the burden of proving that Lopez was not mistaken as to the identity of the registered owner. As we explained supra in section ITI.A, we believe that the intentional or knowing state of mind prescribed in HRS § 708-836(1) applies to the authorization elenent of the offense, such that the prosecution bore the burden of proving that Lopez did not mistakenly believe that the person who authorized his use of the vehicle was the registered owner of the vehicle. Proof of this element turned principally on whether the jury believed Lopez’s account of how he acquired the car. Accordingly, under the third factor, we think that the evidence in this case is not so overwhelming that we are convinced that the DPA’s intrusion into Lopez‘s right to renain silent may not have contributed to his conviction. See Rogan, 91 Hawai'i at 415, 984 P.2d at 1241 (holding that the al ‘104 FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER * evidence against the defendant, which essentially turned on the credibility of the complainant and the defendant, “was not so overwhelming as to outweigh the inflamatory effect of the deputy prosecutor's (racial] comments"). In summary, we hold that all three factors counsel that the DPA’s improper comments were not harmless beyond a reasonable doubt and, consequently, that Lopez is entitled to @ new trial on remand." See Wakisaka, 102 Hawai'i at 316, 78 P.3d at 329 (holding that, because all three factors denonstrated that the prosecution's improper comment on the defendant's failure to testify was not harmless beyond a reasonable doubt, the defendant was entitled to a new trial). The ICA erred insofar as it reached a contrary conclusion. 2. The ICA correctly concluded that the DPA‘s Lopez argues that the DPA’s comments during closing and rebuttal argument with respect to Lopez's failure to call Greg Ramba were improper, because they unreasonably implied that Lopez bore the burden of proof. “‘when it would be natural under the circunstences for a party to call a particular witness, and he fails to do so, tradition has allowed his adversary to use this failure as the basis for invoking an adverse inference.’" State v, Padilla, $7 Lopez does not argue, and we do not believe, that the DPA's comments on his postrarrest silence were so egregious that double jeopardy shosla attach bo ap to prevent Ais retrial. See Wakisahi, 102 Hawai at 516, 78 P.3a fat 325 (holding that the prodecuter’s improper coment on the defendant's failure to testify was not “so egregious that double jeopardy should attach to prevent retrisl”). “Indeed, Leper only requests a new trial. 42 +++ OR PUBLICATION IH WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +4 Haw. 150, 160, 552 P.2d 357, 364 (1976) (quoting McCormick, Evidence 656-67 (2 ed. 1954)). Tt is “natural” for a party to call a witness when “‘a party has it peculiarly within his power to produce [a] witness(] whose testimony would elucidate the transaction.’" 2 Kenneth S. Broun et al., McCormick on Evidence 221 (6th ed. 2006) (quoting Graves v. United States, 150 U.S. 118, 121 (1893)), Under those circumstances, the permissible inference is that, if the witness had been called by the party, the witness's testimony would have been unfavorable to the party. See id. In Badilla, this court held that, because the defendant invoked an adverse inference with respect to the prosecution's failure to call a witness, the prosecution was entitled to explain why it had not done so. 87 Ha. at 161, 562 P.2d at 364. This court has not, however, addressed the question whether the prosecution may invoke an adverse inference against the defendant by virtue of his failure to cali a witness.!? 12 in State ve Napalu, 85 Hawai'i 49, 936 P.24 1257 (App. 1597), the TCR held thateiahere"s defendant relies on an alibi defense and presenta sone evidence concerning the alibi, ne opens she door to prosecutorial comment on Sthe state of the evidence, [the defendant's] failure to call logical Witnesses, and/or [the defendant's failure to) present material evidence.” Ha. st 49; 59, 936 F.2d ot 1307, This court discussed Napelu in Hauge in Hauge, the prosecution adduced DNA evidence showing that. the defendant's bied wae found at the scene of the crime. 103 Hawai't at 45-66, 459 pead at 138-39, ‘The defendant testified that the blood found at the scene wee fet his but, on cross-oxamination, admitted that his testimony was Tnconsistent with the DNA evidence. id, at 54, 79°P.3d at 147. During Closing ergunent, the prosecution asserted, “we explained away everytning except the ost inportant evidence of all. He could not explain away why the Binks evidence pinpointed him inside that rosm.’” Id, at 138, 79 B30 at 46, On appeal, the defendant argued that the prosecutor's coments were inproper, Gletinguishing Hapelu on the ground that the defendant in chat case agserted an alibi defence, whereas he Gia not assert an alibi defense. Id. at 55, 79 Plag ae 148, Tale court held that, although the defendant aid not raise’ an alibi defense, he did undertake to’ “explain auay” such of the prosecution's evidence and, consequently, opened the door to the prosecution's cross~ Chamination ang Later "‘ounment on the state of the evidence.’” Isat 57, (Font inved...) 43 FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER +++ Lopez cites Ross v, State, 803 P.2d 1104 (Nev. 1990), in which the Nevada Supreme Court held that “[ilt is generally outside the boundaries of proper argument to comment on a defendant's failure to call a witness,” because such comment improperly “‘suggests to the jury that it was the defendant's burden to produce proof by explaining the absence of witnesses or evidence.’” Id, at 1105 (quoting Barron v. State, 783 P.2d 444, 451 (Nev. 1989)). In response, the prosecution quotes several paragraphs from Napolu, which include a citation to United states MaBautista, 23 F.3d 726 (2d Cir. 1994), a decision upon which Lopez also relies, apparently for a fall-back position in the event that this court declines to follow Ross. In Bautista, the United States Court of Appeals for the Second Circuit observed that “the government may comment on a defendant's failure to call witnesses to support his factual theories,” but “may not. . . go further and suggest that the defendant has the burden of producing evidence.” Id, at 733. Unlike the Boss court's relatively hard and fast rule against commenting on the defendant’s failure to call witness, the Bautista court's approach permits such comment to the extent that it does not impermissibly shift the burden of proof to the defendant. See id. We believe that the more flexible rule in 2. continues) 103 Pod at 150 (quoting Napolu, 85 Hawai'i at 59, 936 F.24 at 1307). Jn our view, Hauas only adopted jlanoiu insofar as Nanaly held that, defendant adduces evidence at trisl, the prosecution may comment On the evidence during closing argument, See id, Hauge did not sddress liapaly’s rule that the prosecution say conment on the defendant's fa:lure tevesit witness, because the missing witness issue was not before this court. Thus, Chis court has not addressed whether the prosecution may invoke an sdverse inference by virtue of the defendant's failure to call a logical witness. “4 HAWAI'T REPORTER AND PACIFIC REPORTER +++ see FOR PUBLICATION IN WES Bautista is consistent with the “wide latitude” that this court affords prosecutors when they comment on evidence. See Clark, 83 Hawai'i at 304, 926 P.2d at 209. At the same time, the rule also safeguards the defendant's right to require the prosecution to shoulder the burden of proving guilt beyond a reasonable doubt. See State v. Murray, 116 Hawai'i 3, 10, 169 P.3d 955, 962 (2007) ("The defendant's right to have each element of an offense proven beyond @ reasonable doubt is constitutionally and statutorily protected right.”); Hauge, 103 Hawai'i at 55-56, 79 P.3d at 148-49 (“[E]£forte by the prosecution to shift the burden of proof onto a defendant are improper and implicate the due process clauses of the fourteenth amendnent to the United states Constitution and article I, section 5 of the Hawai['li Because we believe that the Bautista rule strikes a fair balance between the interests of both the Constitution. prosecution and the defense, we adopt it and conclude that the prosecution may invoke the adverse inference against the defendant for his failure to call a witness “[w]hen it would be natural under the circumstances for (the defendant} to call [the] witness,” Badilla, 57 Haw. at 160, $52 2.24 at 364 (quoting McCormick, Evidence 656-67), and when the comments do not “suggest {] to the jury that it was the defendant's burden to produce proof by explaining the absence of witnesses or evidence,” Bautista, 23 F.3d at 733. In the present matter, Lopez does not dispute that it would have been natural for him to call Ramba but, instead, maintains that the DPA’s comments on his testimony impermissibly 45 ‘0+ FOR PUBLICATION It WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER +++ implied that he bore the burden of proof. At trial, Lopez testified that Ranba was a friend, law abiding, and honest. Consequently, during rebuttal argument, the DPA azgued as follows: Kouldn’t you have Liked to have heard from Greg Ranba? [Lopez] says he's a local boy, Lives [in] Makakile With hie family.” You knox, would it have been so hard to get him in here into court to tell you guys(, “Yeah, T lent him the car, T told him it was Skay, and T neva know it was stolen either("]? [Lopez] hinself said Greg is law abiding, honest, his friend. “You snow, don’t you think his Eriend would) fone ia? “And all’ he would have to say isl, "Yiean, I Tent him the car.(*] “I would probably vote not guilty maybe at that point. [°) hy didn't he do that? T suggest to you one of two povsibilieies: There is no Greg Ranbs Or Greg Ranba would have cone in here if he called him and id something very different from what [Lopes] would have wanted Greg to say Lopez argues that the DPA shifted the burden of proof by repeatedly referring to his failure to call Ramba and by asserting that, had he called Ramba, Ramba’s testimony would have been unfavorable. The DPA’s comments on Lopez’s failure to call Ramba and Ramba’s potentially unfavorable testimony did not, however, shift the burden of proof. See United States v, Caccia, 122 F.3d 136, 140 (2d Cir. 1997) (holding that a jury instruction that permits “the jury to draw an adverse inference against [the defendant] for his failure to call an available material witness” does not deprive him of his “right to have the prosecution bear the burden of proof as to all elements of the crime”). Lopez further argues that the DPA suggested to the jury that “Lopez deliberately withheld Ranba from the jury because Ramba would have said ‘said sonething very different from what [Lopez] would 2 see supra note «. 46 ‘+4 FOR PUBLICATION IN WEST'S HAWAI'I REPORTER AND PACIFIC REPORTER *** have wanted Greg [Ramba] to say.’ (Emphasis added.) (Brackets in original.) The record does not, however, reflect that the DPA asserted, or even implied, that Lopez was deliberately withholding Ramba from the jury. To be sure, the OPA’s comments suggest that Lopez made a strategic decision not to call Ramba, but they do not, in our view, insinuate foul-play on Lopez's part. Lopez next asserts that the DPA shifted the burden of proof by arguing that, if Lopez had called Ramba and Ramba had provided favorable testimony, the DPA would perhaps vote not guilty. According to Lopez, the DPA implied that, “because Ramba did not testify, Lopez must be found guilty.” (Emphasis added.) It is true that the prosecution may not expressly or impliedly assert that the defendant's failure to call a witness obligates the jury to find the defendant guilty. Cf. United states v. Mares, 940 F.2d 455, 461 (9th Cir. 1991) (holding that a prosecutor's comments to the jury did not shift the burden of proof, because the prosecutor simply stated that, if the defense failed to mention or adequately explain unfavorable facts, “ask yourselves why” and because “(t]he prosecutor did not argue that a failure to explain [the uncomfortable facts) adequately required a guilty verdict”); Bautista, 23 F.3d at 733 (observing that “prosecutors should avoid statements suggesting that the defense is ‘obligated’ at any time ‘to come forward with evidence’”). Nevertheless, we do not think that the prosecution made that argument here. The DPA’s precise language was that, if Lopez had called Ramba to testify and Ramba provided favorable a ++ FOR PUBLICATION IN WEST'S HAWAI'T REPORTER AND PACIFIC REPORTER testimony, the DPA “would probably vote not guilty maybe at that point." In our view, this statement implies that, because Lopez did not call Ramba, the DPA would likely vote guilty. Although the DPA should have refrained from interjecting his personal opinion on Lopez's guilt by suggesting how he would vote if he were a juror, see supra note 4, an issue that was not raised on appeal or in the proceedings below, we do not believe that he implied, as Lopez suggests, that Lopez's failure to call Ranba required the jury to return a guilty verdict, see Mares, 940 F.2d at 461. Accordingly, we do not perceive that the OPA’s comments regarding how he would vote shifted the burden of proof to Lopez. Finally, Lopez contends that the DPA inappropriately implied that Ranba did not exist by virtue of Lopez's failure to cali him as a witness. The inference that Ramba did not exist sonable inferences that the OPA was falis within the reain of r permitted to draw from the evidence adduced at trial, especially given Lopez's inability to recall Ramba’s hone address, despite the fact that he had allegedly been to Ramba’s house and had known him for two years. See Juli, 101 Hawai"i at 208, 65 P.3¢ at 155; Alston v. United states, 552 A.2d 526, 528 (D.C. 1992) (holding that the prosecutor properly commented during closing argument that the person who allegedly gave the defendant permission to use a stolen automobile did not exist, because that theory “could reasonably be inferred from the evidence adduced at trial," such as defendant's testimony that he did not know the person’s last name). 48 FOR PUBLICATION 11 WEST'S HAWAT'E REPORTER AND PACIFIC REPORTER *** Accordingly, we do not believe that the DPA’s comments regarding Lopez’s failure to call Ramba were improper and, consequently, we do not address whether they were harmless beyond a reasonable doubt. See Valdivia, 95 Hawai'i at 483, 24 P.3d at 679 (*[Wle hold that the [prosecutor's] statement did not constitute prosecutorial misconduct in the first instance and need not reach the question whether it was harmless beyond a reasonable doubt.”). The ICA was correct on this issue. see TCA’s Lopez mem. op. at 10. IV. CONCLUSION For the foregoing reasons, we vacate Lopez and Mainaaupo’'s convictions and remand their cases for new trials. James S. Tabe, Deputy Public Defender (DPD), for the defendant- appellant-petitioner William Mainaaupo, Jr. “Dees TLon Donn Fudo, b Deputy Prosecuting setts Oro Attorney (DPA), for the plaintiff-appellec~ respondent State of Hawai'i Krone, Batty: in No. 27764 or Karen T. Nakasone, DPD (katie L. Lambert, DPD, on the briefs) for the defendant -appel lant-petitioner Mark K. Lopez in No. 27969 Brian R. Vincent, DPA (Daniel H.’ Shimizu, DPA, on the briefs) for the plaintif£-appellee-respondent State of Hawai'i in No. 27969 49
dfcaaf3d362ed9dff8d205598606426a8c121ec8c211cacbffa51221eeefb8fc
2008-03-05T00:00:00Z
d8649f89-6fa1-46db-8afe-eada2e5ba9ab
Dominguez v. Price, Okamoto, Himeno & Lum
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 26140 IN THE SUPREME COURT OF THE STATE OF HAWAI'I ERLINDA OOMINGUEE, dba 12W OFFICES OF ERLENOA DOnMGUES oe CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. NO. 03-1-2372) (By: Duffy, J., for the court’) Petitioner/Plaintiff-Appellant’s application for writ of certiorari, filed on July 22, 2009, is hereby rejected. Hawai'i, September 1, 2009. FOR THE COURT: (Fr Wa e Dade by" SEAL °| Associate Justice \ s Bog ws DATED: Honolulu, Erlinda Dominguez, petitioner/plaintiff- appellant, pro se, on the application William C. McCorriston, Kenneth J. Mansfield, and R. John Seibert (of McCorriston Miller Mukai MacKinnon LLP) for respondent /defendant- appellee in opposition 5 Considered by: Moon, C.J, Nakayama and Duffy, Jd. Chreule dodge Chan, in place of Accba, J.y recuse, and Circuit Judge Crangall, fe of Racktenwald, J., rac Bu
b1458147c3fd85e04d9343169ec2e6d3042555b106bba5ebb46a7be0856bcefa
2009-09-01T00:00:00Z
6d796f31-6120-4932-b3d8-8572b4782b32
Keliihananui v. Trinh
null
null
hawaii
Hawaii Supreme Court
No. 29763 IN THE SUPREME COURT OF THE STATE OF HAWAT'T JANICE K. M. CHUNG KELI'THANANUI, JULIA TRINH, M.D. PSYCHIATRIST, HAWAII STATE Hi ‘and JUDGE 'REYNALDO GRAULITY, ORIGINAL PROCEEDING ORDER (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Intermediate Court of Appeais Judge Foley, assigned by reason of vacancy) Plaintiff Janice K. M. Chung Keli‘ihananui’s letter and “brief” dated August 7, 2009 were received and filed in the supreme court on Septenber 14, 2009 and are deemed a motion for reconsideration of the April 22, 2009 order dismissing plaintiff’s complaint. ‘The deadline for filing a motion for reconsideration of the April 22, 2009 order expired on May 2, 2009. See HRAP 40(a) ("A motion for reconsideration may be filed by a party only within 10 days after the filing of the opinion, dispositional order, or ruling unless by special leave additional time is granted during such period by a judge or justice of the appellate court involved.). Therefore, IT IS HEREBY ORDERED that the motion for reconsideration is dismissed as untimely. DATED: Honolulu, Hawai'i, September 25, 2009. arm Besceten Or et ety ores aaa Crane Duty dhe hee me o3t4
22f547e82cdcfe0aaae0c46e9d7e805b6903939b42208242468086d2887e0cdc
2009-09-25T00:00:00Z
fef7cbaa-23a3-4794-b06f-de6030000f62
Title Guaranty Escrow Services, Inc. v. Szymanski
null
null
hawaii
Hawaii Supreme Court
No, 27254 IN THE SUPREME COURT OF THE STATE OF HAWAI'T TITLE GUARANTY ESCROW SERVICES, INC., Respondent/Plaintiff-Appellee, a Hawaii corporation, (CHAEL J. SZYMANSKI, Petitioner/Defendant/ cross-Claimant/Third-Party Plaintiff/Cross-Claim Defendant /Third-Party Counterclaim Defendant-Appellant, and LTD., a Hawaii WAILEA RESORT COMPANY, corporation, Respondent /Defendant/Cross- Claim Defendant /Crose-Clainant-Appellee, B12 He C1 easeaay O374 and ADOA-SHINWA DEVELOPMENT CORPORATION, @ Hawaii corporation, and SHINWA GOLF HAWAT'T'CO., LTD., a Hawaii corporation, Respondents/Third-Party Defendants/Third-Party Counterclainants-Appellees. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIVIL No. 02-1-0352(2)) sTTORART SLICATION FOR (By: Nakayama, J., for the court!) etitioner Michael Szymanski’s application for writ of certiorari filed on August 13, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, September 17, 2009. FOR THE COURT: Pesset se Cr ettiy Associate Justice ORDER Rt Peter Van Name Esser and Edvard A. Jaffe for petitioner on the application Acoba, and Duffy, JJ., and ‘considered by: Moon, C.J., Nakays circuit Judge Lee, in place of Recktenuald,’ J., recused.
56583b1fbb85e665d0dcec13dc12179f60fae25e9704a548978e4641db051145
2009-09-17T00:00:00Z
3518e855-227a-4bac-aece-09d6e6ba6ecc
State v. Nicholson
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 27555 TN THE SUPREME COURT OF THE STATE OF HAWAT'T CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 03-1-2404) (By: Recktenwald, J. for the court’) Petitioner/Defendant-Appellant Rodney L. Nicholson's application for writ of certiorari filed on August 17, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, September 29, 2009 FOR THE COURT: [Mur ©. Necks Associate Justice shawn A, Luiz, on the application for petitioner /defendant- appellant. 2 considered by: Moon, C.J., Nakayama, Aco ckverwald, Jd. putty, and
1a302d50da31f2fe344bcf3e4f4f9de0a2b743b1064a47ec603412c1bf16cee1
2009-09-29T00:00:00Z
2589de11-b43a-467e-8f68-7512d453bd32
Dupree v. Hiraga.
121 Haw. 297
null
hawaii
Hawaii Supreme Court
'++FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER*! IN THE SUPREME COURT OF THE STATE OF HAWAT'I ---000. MICHAEL P, DUPREE, Petitioner/Appellant-Appellee, vs. ROY T. HIRAGA, Clerk of the County of Maui, and SOLOMON P. KAHO'OHALAHALA, Respondents /Appellees-Appellants. No, 29464 APPEAL FROM THE BOARD OF REGISTRATION, COUNTY OF MAUT (CASE NO. BOR-08-01) 5) octoser 20, 2009 MOON, C.J., NAKAYAMA, ACOBA, DUFFY, AND RECKTENWALD, JJ) OPINION OF THE COURT BY RECKTENWALD, J. 5) Roy T. Hiraga and Solomon P. Kaho'ohalahala appeal from 9656 HY 02 Lo060N the November 1, 2008 decision of the Board of Registration for Maui County (Board) which determined that Kaho‘ohalahala was not a resident of tuna'i *[£]or purposes of [the Novenber 2008) election{.]* ‘he case began in September 2008, when appellee Michael P. Dupree and eleven other registered voters from Léna'i sent letters to Hiraga, the Clerk of the County of Maui, which alleged that Kaho'chalahala was not a Lana'i resident. Hiraga subsequently found, inter alia, that Kaho'chalahala was a Lana‘ resident when he registered to vote there in July 2008. Dupree Gaia ‘++POR PUBLICATION IN WEST'S HANA REPORTS AND PACIFIC REPORTER appealed that determination to the Board, which concluded that Kaho'chalahala was in fact a resident of Lahaina rather than Lana‘ ‘The questions on appeal include whether: (1) the Board lacked jurisdiction because Dupree’s complaint was an untimely challenge to Kaho'ohalahala's eligibility to be a candidate for the Lana'i seat on the Maui County Council, rather than to his voter registration, (2) the Board exceeded its jurisdiction by addressing issues beyond Kaho'chalahala's voter registration, and (3) the Board erred in concluding that Kaho‘ohalahala was not a Lana'i resident For the reasons set forth below, we conclude that the Board had jurisdiction to hear the appeal, the Board did not exceed its jurisdiction by addressing issues beyond Kaho'ohalahala’s voter registration status, and the Board did not err in concluding that Kaho'chalahala did not have the right to remain a registered voter of Lanai. Accordingly, we affirm the Board's Novenber 1, 2008 decision. 1. BACKGROUND A, Dupree and other Lina‘i residents submit complaints to Hiraga concerning Kaho’chalahala’s residency Kaho'chalahala was originally from the island of Lanai He was registered to vote on tana‘i from June of 1982 until July ‘s++PoR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER**# of 2006, when he registered to vote as a resident of Lahaina, Maui. In July of 2008, he registered to vote as a resident of Lana'i City, with an address on Fraser Avenue, and also filed nomination papers to run for the Lana‘ seat on the Maui County Council. Two of the qualifications for election to the Maui county Council are that the candidate must be a voter in Maui County and must be, at the time of filing nomination papers, a resident in the area from which the person seeks to be elected.’ Kaho'chalahala’s nomination papers included a certification by Kaho'ohalahala that he met those qualifications.’ Hiraga did not Maui County Charter, Section 3-1, provides for a County Council coaposed of nine members, one from each of the following areas: Lany‘i, Moloka'l, zage maul, Weat Maui, South Maul, Kahulut, Mokawao-Ho'tko “Pasa, Pukalani-fula~Ulupalakua, and Wai luku-Waihe'e-Waikapd. Maui County Charter § 3-1 (2003), available at hetp://wne.co.maul.hi,us/ index. aepx?nidel62 2 he qualifications for County Council menbers are set forth in Maui County Charter, § 3-3 Section 3-3 qualifications. To be eligible for election er appointment te the council. = person mist be a citizen of the United Staten, a voter in the coutty, a resident of the county for a period of ninety’ (90) days next preceding the filing of Roninacion papers and at the tine of filing of Rosination papers a resident in the area from which Che person seeks to be elected. Tf a council mesber ceases to be a resident of the county, or ceases to be a resident of the council member's reaidency ai Guring the council menber's term of office, or 1 Gounei! mesber is adjudicated guilty of a felony, the ‘council menber shall innediately forfeit office ana the seat shall thereupon become vacant. » ams § 22-3 (Supp. 2005) Nomination paper format) Limitations. (a) No candidate's nane shali be printed upon any official ballot to be used at any prinary. special primary, cf special election uniess a nomination paper was filed in the candidate's behalf and in the nane by which the candidate ts -FOR PUBLICATION IN MEST’S EAWAT'T REPORTS AND PACIFIC REPORTER: receive any challenges to Kaho'ohalahala’s nomination papere prior to the September 20, 2008 primary.‘ Kaho'ohalahala voted in the primary as a tana'l resident, and finished first among the five candidates who ran for the Lana‘ seat. He and the candidate receiving the second highest number of votes, John ornellas, advanced to the November 4, 2008 general election. on September 23, 2008, Hiraga received two letters from Lana'i City residents. ‘The letters were identical in form, and stated as follows: re ie my understanding that you are responsible for investigating complaints made regarding elections. in Maul county, Hawaii "in the 2008 primary election for the Maui County Couscii[,] Sol P. Kaho‘ohalahala Fopresented hineelf as a resident of Lanai. Although hie father resides here and he establiched = fost Office Box in order to receive sail, it is widely believed that he actually resides with his wife on cormonly known. The nomination paper shall be in a form prescribed and provided by the chief election officer containing substantially the following infornstion: ia) “the residence address and county in which the candidate resides: ‘ei “n'sworn certification by self-subscribing oath by the candidate that the candidate qualifies under the law for che office the candidate ie Seeking and that the candLdate has determined that, except for the information brovided by the registered voters signing the nomination papers, all of she Tnormation on the nomination pepers ie true and correct («] ‘uns 5 12-8 (supp. 1999) Momination papers) challenges evidentiary hearings and decisions. (2) All nomination papers filed in conformity sith Section 12-3 shall be deoned valid unless objection is made thereto by & Fegistered voter, an officer of a political party whose name is on file with the chief election officer, the chief election officer, or the county clerk in the cae of a county office. All objections shall be filed in writing not later than 4:30 p.m. on the thirtieth day or the next earliest working Gay prior to the primary or special election ‘*8POR PUBLICATION In WEST'S HAWAI'T REPORTS AND FACIPIC REPORTER*** Would you please investigate hia claim to residency here? “Many residents of this island would like to know what the criteria (arel for establishing Fesidency. I would like to know how to proceed to file a claim that Mir, fahoshalahais falsified Gocunents filed with his signature to run for the office of Maui County Council, tana't Seat. one of the writers added a handwritten note at the bottom which stated, “In the nine yrs. I’ve lived here T have never seen Sol at the gas station, stores, Bank or Post Office! ‘This is a small island; where is he?” on September 24, 2008, Hiraga wrote to Kaho'ohalahala as follows: The Office of the County Clerk, County of Maui, has received two written challenges to your voter registration, pursuant to Section 11-25 (1993), Hawaii Revised Statutes. *] The challenge alleges that you © ng § 11-25 Challenge by voters; grounds; procedure. (a) Challenging prior to election day. Any registered voter my challenge the right of a person to be or to renain registered as a voter in any precinct for any cause not previously decided by the board of registration or the supreme court in respect to the sane person; provided that in an election of meubers Of the board of trustees of the office of Havaitan affairs the voter making the challenge must be registered to vote in that election. The challenge shall be in writing, setting forth the grounds upon which it is based, and be ‘Signed by the persoh making the challenge. ‘The challenge ahali be delivered to the clerk who shall forthwith serve novice thereat on the person challenged. The clerk shall, as soon as possible, investigate and rule on the challenge. (b) Challenging on election day. Any voter rightfully in the polling place may challenge the right to vote of any person who cones to the precinct bfticials for voting purposes. The challenge shall be on the grounds that che Voter is not the person the voter alleges to be, or that the voter 18 not eatitied to vote in that precinct; provides that only in an electicn of menbers of the board of trustees of the office of Hawaiian affairs, a person Fegistered to vote in that election may also challenge on the grounds that the voter is not Hawaiian. Wo other or further challenge shall be allowed. Any person thus challenged shall first be given the opportunity to make the Felevant correction pursuant to section 11-21. The challenge shall be Considered and decided immediately by the precinct officials and the ruling soall be announced (G)" Tf neither the challenger nor the challenged voter shall appeal che ruling of the Clerk or the precinct officials, then the voter shall either be -s- JOR PUBLICATION IN WEST“S HAWAI'I REPORTS AND PACIFIC REPORTER*** do not reside on the Isiand of Lanai ‘you are hereby informed that our office will conduct an investigation as soon as possible and will Subsequently issue a ruling on the challenge. As part Of oar investigation, we Fequest that you respond to the challenge allegation, i-e., that you do not reside at {] Prager Avenue.[*) Please send your response to Our Office no later than October 3, 2008. Kaho'ohalahala responded on October 3, 2008. He submitted an affidavit dated october 2, 2008, in which he stated that “I am a resident of Lanai City,” that *(mly residence is fixed at [] Fraser Avenue, Lana‘i City and whenever I am absent from the island of Lana'i, I intend to return{,]* and that at the time of "fixing my residence in Lana‘i City, it was with the intention of making it my permanent dwelling place." Kaho'chalahala also stated that his family has continuously lived on Lana‘i throughout his life, that he had “filed an affidavit of voter registration with the belief and understanding that [he is] a legal resident of Lana'i because of [his] permanent residence at [) Fraser Avenue[,]* and that he had filed nomination papers and voted in the primary ‘with the belief and understanding” that he was a legal resident of Lana'i allowed to vote or be prevented from voting in accordance with the ruling. If fan appeal is taken to the board of registration, the challenged voter shail be Allowed to vote; provided that ballot is placed in a sealed envelope to be later counted or rejected in accordance with the ruling on appeal. The chief election officer shall adopt rules in accordance with chapter 91 to safeguard the secrecy of the challenged voter's ballot. «We have deleted residential street numbers for purpos opinion. of thie -FOR PUBLICATION IM WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*** Kaho'ohalahala also submitted an affidavit by his brother, Gaylien Kaho'ohalahala, in which Gaylien stated that Gaylien was a resident of Lana'i City and *[iJn the beginning of July, 2008, (Kaho'chalahala] telephoned me and discussed with the family his intention of returning to Lana‘ to live." Gaylien further stated that ‘{wle welcomed (Kaho'ohalahala’s] return home and he presently resides at {] Fraser Avenue and resided there since the beginning of July, 2008." Kaho'ohalahala also submitted a response arguing that the letters were not challenges to his voter registration status under HRS § 11-25, but were challenges to his nomination papers under HRS § 12-8. Kaho'ohalahala noted that HRS § 12-8 required objections to have been made to his nomination papers, which included @ sworn statement declaring his residency, no later than thirty days prior to the September 20, 2008 primary election, that no timely objections were made, and that his nomination papers were therefore presumptively valid. Kaho'ohalahala argued that the complaints were underhanded attempts] to circumvent the legal requirements for proper objections to nomination papers and challenges to election results.” Additionally, Kaho'chalahala argued that the complaints constituted a challenge "FOR PUBLICATION IN WEST'S HAMAI'T REPORTS AND PACIFIC REPORTER’ to an election pursuant to HRS § 11-172 (1993),” and that the office of the County Clerk of Maui did not have jurisdiction te hear such a challenge. He requested that Hiraga dismiss the September 23, 2008 complaint letters as untimely challenges to his nomination papers and for lack of jurisdiction to decide election contest complaints. Meanwhile, between September 24, 2008 and October 3, 2008, Hiraga received ten additional letters from Lana't residents. Six letters were identical to the September 23, 2008 letters. The content of the other letters varied. one resident submitted a letter alleging that Kaho'ohalahala falsified his residence on his filing papers, that Kaho'chalahala’s siblings resided at {] Fraser Avenue in Lana'i, and that Kaho'shalahala actually resided in Lahaina, Maui. This resident requested that Hiraga disqualify *Kaho'ohalahala(’s) results from the (September’20, 2008 primary][,]* “exclude him from the General Election{,]* and "restore Alberta de Jetley's eligibility in the RS § 11-172 Conteate for cause; generally. ith respect to any election, any candidate, or qualified political party directly interested, oF any thirty voters of any election district, may file a complaint in the Soprane cture. ‘The complaint shall set forth any cause or causes, such as but Rot limited to, provable fraud, overages, oF underages, that could cause a Bitterence in the election results. he complaint shail also set forth any Yessons for reversing, correcting, or changing the decisions of the precinct Officials or the officials at a counting center in an election using the Clectronie voting system. A copy of the complaint shal! be delivered to the Chief election officer of the clerk in the case of county elections. ‘tevoR PUBLICATION IN WEST'S EAWAT'T REPORTS AND PACIPIC REPORTER*** General Election.* Alberta de Jetiey, an unsuccessful candidate in the primary election, submitted a complaint letter alleging that Kaho'chalahala’s “statement to the Maui News about maintaining his residency on Lanai while working for the Kahoolawe Commission is false." De Jetiey requested that Hiraga ‘investigate this matter so [that] we, the registered voters of Lanai, can move on and elect soneone who is truly a resident of this island to represent us.* Dupree submitted a complaint letter alleging that although Kaho'ohalahala was from Lana‘i, he did not own a hone, manage a business, work on, or farm on, Lanai, that he had not campaigned or held rallies there, and that he had not been seen by local residents on the island. Dupree stated that Kaho‘chalahala won the primary based on “off island voting patterns[,]* but that residents of Lana‘i preferred several other candidates for the Lana‘i seat, as they ‘are all local residents, and they are in touch with the pulse of tanai[.]* Dupree requested “that off islanders give (Lana'i residents) the right and opportunity to govern [them]selves[.]" Dupree stated that although Kaho‘ohalahala was a "fine candidat * he should “run in the district that he currently resides in and give a current Lanai resident the opportunity to represent their home island[.]* {POR PUBLICATION IN MEST’S HAWAI'T REPORTS AND PACIFIC REPORTER’ Another resident submitted a letter “challenging (Kaho'chalahala‘s] running for County Council on behalf of the island of Lanai, or being voted into that office in the general election on Novenber 4, 2008, based on the question of [his] permanent/legal residency on Lanai.* This resident cited to the Maui County Charter and statements Kaho'ohalahala made to the Maui News. ‘This resident asked if Kaho'ohalahala paid mortgage, rent, utility bills or property taxes in Lana'i, and further inquired as follows: (2) What address did [Kaho‘ohalahala) use on his Voter's Registration form; and, where is his polling address? (2) here did [Kaho‘ohalahala) vote on Septenber 20, 2008 in the primary?” Lahaina or anal? ‘his resident requested that Hiraga “investigate Mr Kaho'ohalahala’s right to file nomination papers to run for County Council to represent the island of Lanai, based on his questionable residency in Lanai,* and further requested that it Kaho'chalakala was found in violation of the residency requirenent of the Maui County Charter, that Hiraga ‘remove Mr. Kaho'chalahala’s name from the November 4, 2008 general election ballot; or, if the ballots have already been printed, then any votes he may receive NOT be allowed to be counted.” Hiraga’s ruling on complaints on October 10, 2008, Hiraga issued a ruling on the n10- 'FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*** twelve complaint letters. Hiraga treated the complaints collectively, stating that *[glenerally, the writers of the Complaint Letters allege that (Kaho'ohalahala} does not reside in the Lanai residency area.“ The ruling stated in relevant part as follows: ‘The Complaint Letters challenge mr Kaho'chalahala’s residency based upon tyo separate seacutary grounds, namely, [MRS § 12-8) and (MRS § 11 25). Go'the extent that the Complaint Letters constitute a challenge to Mr. Kaho'chalahala’s Sandidacy pursuant to the provisions of [HRS § 12-8] the challenge is untimely.” Section 12-8 clearly provides that *All objections shall be filed in Writing not later than 4:30 p.m. on the thirtieth day OF the next earliest working day prior to the primary oF special election."” The earliest date of receip: of @ Challenge Letter by the Clerk's Office was Monday [sic], Septenber 23, 2008, two days after the Primary Election was conducted on Saturday, Seprenber 20, ‘The ruling went on to quote HRS § 11-13 (1993),* and * wns § 12-19 Rules for determining residency. For the purpose of this title, there can be only one residence fer an individual, but in determining residency, a perton my treat oneself separate from the person‘s spouse. Tie following rules shall determine residency for election purposes only: (2) the residence of a person Le that place in which the person's habitation is fixed, and to which, whenever the person is absent, the person has the intention to return; (2) Riperson does not gein residence in any precsnct ints which the person cones without the present intention of establishing the person's permanent dreliing place within Such precinet (3) Tf-a person resides with the person's family in one place, and deer business in another, the former is the person's Place of residence; but any Gerson having a fanily, who Establishes the person's dveiling place other than with the person's fanily, with the intention of renaining there shall Ee considered a resident where the person has established Such dwelling place; (4) The mere intention to acquire a new residence without o1l- +POR PUBLICATION IM WEST'S HANAI'T REPORTS AND PACIFIC REPORTER*** then concluded as follows: Hight of the twelve Complaint Letters state, +... eis widely believed thet’ [Me Kaho'chalahala] actually resides with bis wife on Maui.” Assuming, for the purpose of argurent, that this widely held belief ie true, {HRS § 11-13) conterplates that a person may have a residence separate and apart fron fis or her spouse when it states as follows: "For the purpove of this Eitie, there can be only one residence for an individual, mut in detersining residency. a Dereon may treat Sneself separate from the pereon’s Spouse. ie. Kaho‘ohalahala admits that he resided on Maui when he was director of the Kahoolave island Reserve Consission. However, [aRS § 11-13(5)) states fas follows: *(5) A person dogs not gain or lowe a Sesidency solely by season of the person's presence oF abeence while employed in the service of the United States or of this State, or while a student of an {netitueion of learning, or while kept in an) institution oy asylum, or whtle confined in prison{.)* Therefore, Mr. Fahcohalahaia did not lose his Fesidency die’ to his absence from Lanai vhile be was erployed in service of the state ‘Que Complaint Letter alleges that “The [] Fraser Ave. address is the hone of his father. iis siblings, T believe, are listed on the deed of the hone. His Fesidence for approxinately the last 10 years has been (] Planing Road, Lahaina, HI. ‘The language of [HRS §°11-13(2), (2) & (4)) nakes it abundantly clear that physical presence or absence from a particular place is not the deciding physical presence at such place, does not establish Fesldency, neither does here physical presence without the Concurrent present intention to establish such place as the person's repidence: (5) _Riperson dees not gain or lose a residence solely by reason of the person's presence or absence while employed in the Service of the United States or of this state, or while a Student of an institution of learning, or while kept in an Gnetieution or asylum, or while confined ina prisons (6) No menber of the armed forces of the United States, the Penber's spouse or che mesber‘s dependent is a resident of this stave solely by reason of being stationed in the Seater (7) Aperson loses the person's residence in this state if the Derson votes in an election held in another state by. absentee ballot or in person. In case of question, final determination of residence shall be made by the clerk, subject to appeal co the board of registration under part 117 of this chapter, -12- ‘s*47OR PUBLICATION I WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*" factor in determining the residence of an individual Stnder section 11-15, one's gtate of mind Seternines one's place of residence." Atey. Gen: Op. 86-10. (Baphasis added! ‘The Key to deciphering Mr. Kaho'chalahala’s state of mind is found in his sworn affidavit. In ie, he states ie 3.” My residence is fixed at {] Fraser Avene, Eana'i City, and whenever 1 an absent trom che ieiand of tana, 1 intend to return 3. T'was born and raised on the island of tana'i and retained ny residence on Lana'i except for a brief period in which Iwas In the service of the State of Hawai'l with the Rahoolawe Taland Reserve Commission 4. AE the time of fixing my residence in Tasa'l city, ie vas with the invention of making it my permanent dwelling place tC) (emphasis added.) it is clear from the quoted portions of his eworn affidavit that Mr. Kaho‘ohalehala intends to Teside on the ieland of Lanal ‘The Office of the County Clerk, County of Maui, has conducted an examination of Mr. Keho'ohalahala’ voter registration history and confirms that, with the exception of the period from July 2006 to duly 2008, Mr. Kaho'ohalahala’s residence address of record has always been on Lanai Pursuant co [MRS §§ 11-13 & -25), and based upon the foregoing discussion, to the extent that the Complaint Letters constitute 4 challenge to Me. Kaho'chalahala’s right to renain a registered voter in (Lanai) District/Precinet 13/07, the challenge se not sustained (Emphases in original; footnotes omitted) Hiraga notified all of the complainants of his decision, and of their right to appeal his decision to the Board of Registration pursuant to HRS § 11-26 (1993). C. Dupree appeals to the Board of Registration and the Board overrules Hiraga’s decision -13- FOR PUBLICATION IN WEST’S HANAI'T REFORTS AND PACIFIC REPORTER" Dupree, proceeding pro se, sent an appeal letter dated october 16, 2008 to the Board of Registration. Dupree stated that he was challenging Hiraga’s decision *not to sustain the challenge as to the true residency of (Kaho'ohalahalal{,J* and argued in relevant part as follows: while T would agree that according to Hawaii Revised statutes that the challenges were received on fan untimely basis, it doean’t change the truth and vanidity of this challenge. Te doesn't change the fact that Sol Kaho'ohalhala and hie brother Gaylien, ay both have given false statements in their sworn affidavits. T would argue that in this specific Situation an exception should be granted and further Consideration be given to this challenge. i live’at [) tana street, 2 fev blocks from (J Peaster [sic] Avenue, where Soi claims that he lives: [have passed by that house almost one thousand times Zines duly 2008, ten tines a day for over one hundred ays, ‘when Sel supposedly returned here according to he and his brother's svorn affidavit, T have not seen hin once. Not once in a hundred days oF 2 thousand passes. i'm not surprised that Sol would Gistort the truth but Gaylien too? I haven't seen Sol on Lanas once this year, although 1 an not saying he hasn't visited, T'm saying he doesn’t Live her Ravea'e seen hin onee at the poet office, efther bank, not at any Lanai store, nor the gas station, nor any Festaurant. T haven't seen him walking, driving a far, riding a bike, surfing or paddling a canoe. He Sertainly ie not commuting to Maul. Four times a week Ttake the only road down to Expeditions Ferry Service at Manele Harbor and pass everyone who is going 0 Saul, 1 vee ali the Lanat faces commuting on the Hirst boat to Yaul at 8:00 A¥, and again 1 have not een his face once in the last three months aince he hoved here as he swore before a notary public.” He Goes not commute from Lenai to tahaina and then to Kahului; that would be inpractical- ‘The Harbor Master Of anai, Sheri Menze, alto sent a letter challenging Soi's reaidency because she doesn't see Alm either Ee he invisible, are we Blind, or are he and his Brother not teliing the ruth? i ask that you please uphold the challenge to Sol Kaho'chalahala{'s] true residency and help the Fesidents of Lanai co take a step forward and not Allow this dishonest man to represent our island on n14- POR PUBLICATION IM WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*** the Maul County Counc!, Ke misrepresent (ed) himself on hie voter registration, his aomination papers. and his avorn affidavit. Please renove him from the ballot and replace hin with a true Lanai resident. Kaho'ohalahala then filed a Motion to Dismiss for Lack of Jurisdiction. He argued that because there were no timely objections to his nomination papers, which included a declaration of his legal residency and registered voter status, his nomination papers were presumptively valid. Kaho‘ohalahala argued that this was an election contest within the meaning of HRS § 11-172, which is within the exclusive jurisdiction of the Hawai'i Supreme Court. On October 21, 2008, Kaho'chalahala also filed a Petition for Writ of Mandamus (petition) with this court, which named Hiraga as the respondent. In his petition, Kaho'ohalahala similarly argued that none of the complaints challenged his voter registration, that his nomination papers were presumptively valid as there had been no timely objections, and that the complaint was an election contest within the meaning of HRS § 11-172 Kaho‘ohalahala requested that this court vacate Hiraga’s October 10, 2008 ruling and dismiss the underlying action because it constituted an election contest, which Hiraga did not have the jurisdiction to decide. Kaho'ohalahala also filed with the Board a Motion for Stay of Proceedings pending disposition of his petition, and a n15- ‘*#POR PUBLICATION IM WEST’S HAWAI'T REPORTS AND PACIFIC REPORTER Motion in Limine to Exclude Accepting Testimony trom Witnesses by ‘Telephone or Video. A hearing on Kaho'ohalahala’s motions was held on October 27, 2008. At the hearing, Dupree argued at one point that ‘the fundamental reason that we are here is because one clause in the Maui County charter . . . says that one of the menbers of the Maui County Council must be a resident of Lanai(,]* but later argued that ‘although in my original challenge I didn’t list the word voter registration I didn’t list the word nomination paper either but the thrust of the argument was that (Kaho'chalahala] is not a resident{.J* After the hearing, the Board denied Kaho'ohalahala’s motion to stay, motion to dismiss, and motion in limine to exclude testimony given by telephone or video. ‘The Board issued an order dated October 28, 2008, denying the three motions, concluding in relevant part as follows: EINDNGS oF Fac. 2." " he county Clerk's october 10, 2008 ruling from which wr. Dupree bas appealed to thia poard determined that the County Clerk does not have Jurisdiction to determine Mr. Kaho'chalanala’s Gandidacy pursuant to (Wes) § 12-8 3.) “the County Clerk's Octéber 10, 2008 ruling construed Nr. Dupree's challenge to be a challenge by a registered voter under IRS § 11-25, challenging the fight of Mr. Kaho‘ohalahala to be a registered voter inthe precinet that includes Lanai 42" Mr. Dupree’s appeal of the County Clerk's fuling wae filed on detaber 16, 2008 and challenged the application of the rules for determining residency that Were applied by the County Clerk CONCLUSIONS OF LAW -16- ‘*+POR PUBLICATION IN WEST'S HAWAI'T REFORTS AND PACIFIC REPORTER* 2. The Board of Registration for the County of Maui has jurisdiction over the parties herein hae primary jurisdiction of the subject matter of appeal, which is a challenge by a registered voter Under #RS 5 11-25, challenging che right of Mr: Kaho'ohalahala to be a registered voter in the precinct that. includes Lanai 3. Me. Dupree hau standing to being this appeal of the County Clerk Roy #iraga’s determination Fegarding the voter registration status of Solomon Kano'ohalakala. on October 30, 2008, this court denied Kaho'ohalahala’s petition for writ of mandamus, holding in relevant part as follows: Upon consideration of the petition for a writ of mandamss filed by petitioner Solomon P. Kahoohalahala and the papers in Support, it appears that Fespondent's October 10, 2008 ruling aid not decide whether petitioner was nominated or elected as a Candidate in the September 20, 2008 primary election, but decided only that the challenges to petitioner's nomination papers were untimely and that petitioner ie @ registered voter on Lanai. The October 10, 2008 Fullng was not tantamount to a judgeent in 3 primary Slection contest given pursuant to MRS § 11-173.5(b] (1993), but was a ruling only on a challenge co nomination papers and on a person's voter registration Statue, Jurtediction to render such ruling wae with Fespondent pursuant to MRS §§ 12-8(b) (1993) and in=38 ta) (1393), Kaho'chalahala v. Hiraca, No, 29415, 2008 WL 4769470, at *1 (Haw. oct. 30, 2008) A hearing was held on Dupree’s appeal on October 31, 2008. Board chair John Henry characterized Dupree’s appeal as a “challenge to [] Kaho'chalahala’s right to remain a registered -a7- ‘sseFOR PUBLICATION IN MEST’S HAVA'T REPORTS AND PACIFIC REFORTERY*® voter on Lanai* pursuant to HRS §§ 11-13 and 11-25.” Dupree initially presented his appeal as a “challenge of voter registration(,]* but also argued that Kaho'ohalahala registered to vote on Lana'i so that he could “file his nomination papers for candidacy.* Counsel for Kaho'ohalahala objected that the Board ‘has already determined that it’s not hearing questions related to candidacy[,]* and that any evidence “along those lines ( is irrelevant and immaterial[.]* The Board sustained the objection. Counsel for Hiraga joined in the objection, additionally noting that ‘this Board does not have jurisdiction to consider such matters." The Board agreed, and asked Dupree to “keep it to his voter registration.* Dupree argued that Kaho'chalahala’s residence was fixed in Lahaina, and that Lahaina is where Kaho'ohalahala intends to return to whenever he is away. Dupree argued that although Kaho'chalahala registered to vote in Lana'i in July of 2008, he lacked the present intention and corresponding physical presence necessary to be a Lana'i resident When asked if he had any personal knowledge about where Kaho'ohalahala sleeps at night or resides, Dupree testified that > estten transeripte of the October 27 and 31, 2008 hearings are part of the Fecord on appeal, The record does not Indicate who prepared the Erangeripts. Although Hiraga identifies two passages that he asserss were inaccurately transcribed, all parties cite to the transcripts in their briefs and do not otherwise dispute thelr sccuracy or authenticity. n18- ‘s+4ron PUBLICATION I WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*** he Ykn{elw [that Kaho'chalahala] was on the island [of Léna'i] last weekend because . . . he showed up at the Aloha Festival and stayed overnight a couple of nights{.]* Dupree also testified that he had heard that Kaho'chalahala was at a political rally just before the primary. Dupree then called Ron McComber to testify." McComber testified in part as follows: (Mocomber}: I've Lived on lanai for thirty aine years, I've known (Kaho'ohalahalal for those thirty nine years, sometines he lived om cheve and sometines sh he dogsnt. what I'm saying is now for the, the past probably ten yeara he has not physically lived on Tanai, that's, that’s addressing the, the problen of him tiving on’ tanai, he has fot Lived there (Dupree}: and ah as of July (2008) has he returned to the isiand to Live en the ‘#land. Wecomber]: For [Dupree] + Ac far"as your understanding WeConber]+ Av far ao I know, he's cone back one tine since that time and it was for chat rally, and he has ot Lived on Lana’ [Dupree]: tm, and 20, you're (sic} detection is that he's not an actual resident of the island? DlcConber]: That is my understanding, 7 Live there, and it’s avery small island, not very many things go On Lanai that people don’t know, and the population of the island is very rare (sic] of who cones and who Goes, who lives, ho ian't.. t's kind of a, a melting pot and there 5 no ingication that I cen find anyshere from anybody chat [Kaho'obalabelal has moved Back thee and lived there for the last, at least, cen years. A Board member then asked McComber if, since July of 2008 when Kaho‘ohalahala registered to vote on Lanai, McComber had seen “any signs that [] he had established . . . any material “fon MoConber's name is spelled in several different ways in the transcript and the briefs, For the purposes of this opinion, we adopt the fag used by the Board in its Wovenner 1, 2008 decision. -19- “FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIPIC REPORTER: goods there, a car, or moving van, anything along that line[.]* McComber testified that he had ‘not seen [Kaho'chalahala) cone back over there, and move in, move clothes in, bring a car over there. wis brother picks him up at the dock and, and drives around, he does not have a car that I know of over there.* counsel for Kaho'ohalabala then moved for a directed order or decision that Dupree “has not by preponderance of evidence presented sufficient () evidence to support [the] overturning of mr. Hiraga’s [decision] [,]" and deputy corporation counsel joined in that motion. The Board denied the notion, and corporation counsel called Hiraga to testify. Hixaga testified that subsequent to receiving the complaint letters alleging that Kaho'ohalahala was not a Lana‘i resident, he conducted an investigation which included researching Kaho'ohalahala’s voter registration history. Hiraga testified that Kaho'ohalahala’s voter registration records dated back to 1982, and that Kaho'ohalahala had been continuously registered to vote on Lana‘i with the exception of the period from July 2006 to July 2003. He also testified that it was his understanding that during those two years, Kaho'chalahala was employed by the State of Hawai'i -20- ‘st+70n PUBLICATION It WEST'S HAMNAI'I REPORTS AND PACIFIC REPORTER*” Ellen Pelesaro” then testified for Kaho'ohalahala. she testified that she had known Kaho'chalahala since 1991, and that Kaho'chalahala’s family had been on Lana'l for seven generations. Pelesaro testified that Kaho'chalahala had an ‘immense love affair with (the island of Lana't],* and that *he cane right back from college and went to work there and began to do community service on that island that led ultimately to his running for office." she testified that Kaho'ohalahala had held a nunber of elective offices requiring Lanai residency. He had previously held the Lana‘i seat on the Maui County Council, was on a citizen's advisory committee, was a state representative, and was the Lana'i representative to the Hawaiian Sovereignty Comission. Pelesaro stated that when Kaho'chalahala previously represented Lana'i on the Maui County Council, he commited to and from work on Maui because he received an allowance for that purpose. Pelesaro testified that Kaho'chalahala had recently served as Executive Director of the Kaho'olawe Island Reserve Commission, and that he was currently employed by the state as an instructor at Maui Community College (McC). She testified that he resided’ with his wife at an address on Fleming Road in Lahaina while employed at the Commission and MCC because “they've got no 8 there are different spellings of her nane in the record. For purposes of this opinion, we adopt the spelling used by the Board. w21- ‘s++POR PUBLICATION IN WEST'S HAWAT'T REFORES AND PACIPIC REPORTER*** appointment for him to conmute.* During a break between his employment with the Commission and MCC, Kaho'ohalahala was on Lana'i ‘for awhile* as well, helping to care for family menbers. Pelesaro testified that Kaho'ohalahala’s wife was the Vice Principal at Lahainaluna School, and Pelesaro did not know if she joined him on Lana'i during that period. Pelesaro stated that “(Kaho'chalahala] and his wife had talked as long as [she had] known them, about remaining on Lanai for the rest of their lives, their children are there, their grandchildren are there, it was work related why he had to physically not be there all the time.” she also testified that she knew Kaho'ohalahala to be truthful, and that she did not believe he would lie under oath. The Board asked for the opportunity to ask Kaho'ohalahala sone “questions for clarification,* but his counsel objected and the Board responded that it would ‘not yield to ask him questionst.]" The Board entered the following decision dated November 1, 2008, sustaining Dupree's appeal and overruling Hiraga’s October 10, 2008 decision: the decision 1s dated Novenber 2, 2008, but there is no indication in the record of when it was served. However, Hiraga states in his opening brief, and the other parties do not dispute, that they were served on November 12,2008 -22- "FOR PUBLICATION IM WEST’ S HAMAI'T REPORTS AND PACIFIC REPORTER** ‘CONCLUSIONS OF LAW AND DEcuszox ‘EMNDINGS oF pact ‘Mc, Dupree’s Complaint to the County Clerk 2. tar. Kaho'ohalahala is a candidate for the Maul county Coune!l for the seat designated for the Fesident of the Zeland of tans! for the 2008 general election 3°’ ay leteer received september 29, 2008, Mr. Phoenix Dupree, also known as Michael Phoenix Dupree, Also known as Phoenix, a registered voter of the stave GE Hawai'i, filed a challenge to Mr. Keho'chalahala’s Fight to be or to remain registered as a voter of the Eanal Distriet/Precinet 13/07 4." Mr. Dupree contends that while Mr. Kaho'chalahala is from Lane! and has family on Lane’, he is in face not @ resident of Lana't Sr" Baged primarily on Mr. Kaho'ohalahala’s stated intention of establiahing his residence in Tana't city, with the intention of making 4¢ his permanent veiling place, the County Clerk concluded that “with the exception of the period from July 2006 to July 2008, Mr- xaho'ohalahala’s residence adaress of record has always been on Lanai." accordingly, the County Clerk detersined that Mr. Dupree'® challenge was not sustained. 3. By letter dated October 16,2008, Me. Dupzee appeals the County Clerk's decision that Solomon P. Kaho'ohalahala is a registered voter in (Lana's) District /Precinet 13/07. 7." Up until July 10, 2006, Mr. xabo'ohalahala resided at [] Akolu Place, Lana't City, tana'l, Hawai't 56069. 8. on or about July 10, 2006, mr. Kaho'chalahala changed his residence from Lana'i co () Flesing Road,’ cahaina, Maull1 ‘On er about July 15, 2008, me. Kaho'chalaals changed hie tesidense tot) Fraser avenue, anal city, “here his brother and his Brother's family reaiae. for “Mr. Eaholchalahala ie employed by the Research Corporation of the University If Hawai as dn Instructor/facilitator et Maul Community College, at ite campus in Wai luks, Maui (.] tl, Mr. Kehoohalahala is married to Lynn Kaho'chalabala, who is a vice principal at Lahainalus High School, in Lahaina, Maul.) 12.” ‘while originally from tana‘i, and while hi brother continues co live on Lanal, Mr Kaho'chalahala does not own or work fora business on Usna'i, nor does he own or rent a house or keep a car i 23+ YOR PUBLICATION IN MEST’S HAWAI'I REPORTS AND PACIFIC REPORTER*** 13. Mr, Dupree ha Lived on tana'i since 199 and 1s cirrentiy employed 25 the general manager of the Blue Ginger café. We presented Ron MeComber, a Fesident of Lanai, a@ a witness who testified that he has not seen Mir. Faho'ohalahala on cans’: id. Since July 2008 when Mr Kaho'ohalahala claims that he moved back to tans), ur. Dopree has ot seen Mr. Kaholohalahala at the post office, either bank, the Lana'i store, the gas station, or any 1S. ‘The Couity Clerk received letters from eleven other Fesidente of Lana'i disputing Me Kaho'ohalahala’e Lana't residency. 36." In support of bis claim of residency on the {eland of Lana't, Me. Kabo'chalahala submiteed an affidavit in which he states that he "was born and Faised on the island of Lana'i and retained (nis! Fesidence on Lana'l except for a brief period in which he] was in the service of the State of Hawai'i with the Kaho'olawe Island Reserve Comission.*!(") Ui. ir. Kaho'ohalansla further states that his fantiy hae conésnuously Lived on the Leland of tana’ throughout hie life and that it is ha understanding that he is a legal resident of tana‘ because [] hic persanent residence is, and was at the time he filed Bie nomination papers, {] Fraser Avenue, Lana‘i city. Te. Mr. Kabochalahela's brother, Gaylien, also submitted an affidavit in which he staves shat Me. Kabo'ohaiahaia talked with him ebout returning to Eana'i to live and that tr. Kaho'ohalaala has resided at {] Frazer {sic} Avenue since [the] beginning of Suny, 2008. 19." Other than Mr. Kaho'ohalahala’s self proclaimed intention, which was corroborated by he Brother, and a witness testifying as to his veracity, Ro evidence was presented regarding his abandoneent of Bis residency in Lahaina and his permanent relocation fo tana’! The Board's decision included a footnote at this point, which stated the following: ‘The County Clerk concluded that Mr. Kaho'shalahata said not lose his residency due to bis absence from Lanai while he was employed in the service of the Stacer, however, Mr. Kahsohalabala legally changed his residency ffom Lana't to Lahaina on July 10, 2006. M re must be noted that the Board's findings made only a passing reference to Pelesara, who was Kaho'ohalahala’e only witness at the October 31, 2008 Board hearing. Also, although POF 3 susmarized Hiraga‘s -24- ‘**POR PUBLICATION In WEST'S EAWAZ'T REPORTS AND FACIFIC REPORTER’ CONCLUSIONS OF LAW 3." " Appettant Michael P. Dupree has standing to bring this appeal of County Clerk Roy T. Hiraga’e decision regarding Mr. Dupree’s challenge to Solomon P. Kaho'chalahala's residency for election purposes bins} '§ 11-25 (“Any Togiatered voter may challenge the right of a person to be or to remain registered as 3 voter in any precinct for any cause not previously Gecided by the board of registratien or the supreme court in respect to the sane person{.J") 4” “RGreuant’ to the Maul County Charter Section 3-1, the Council shall be compesed of nine nenbers elected at large, and ay it pertains to this Case, one of whom shal! be a resident of the island of Tana’s Cetober 10, 2008 ruling, the Board did not discuss the details of Hiracs's testinony in ite findings. see Auplication of Hawaii Elec. Licht Co. inc. 60 wa. 625, 641-42, 594 7.24 612, 623 [1979] ("The Toquirenent that the [agency] set out findings of fact’ and conclusions of law is no mere technical oF perfunctory matter. The purpose of the statutory requirement that the agency set forth separately its findings of fact and conclusions of law is to jure Feagoned deciaion making by the agency and enable judicial review of agency decisions.) {citations omitted). In that regard, *"[aln agency's findings mat be sufficient to allow the reviewing court to track the steps by hich the agency reached ite decision.’ ‘Nakamura v. State, 98 Hawal't 263 276, 47 P.3d.730, 743 (2002) (Acoba, J., joines by Ramil, J., concurring in part and dissenting in part) (quoting a Goma, 7 Haw. App. 227, 250, 751 P-24 1031, 1034 (19941) orackate omictea) Ke this court has stated: ‘The circumstance that the evidence is in the transeript and that the court, by weighing it, can, Getermine for itself "the facts" does not suffice. ‘The agency io the fact finder, and the undigested transcript is not a substitute for a set of findings of fact. Nor shoulda court be put inva position wherein it is forced to ferret out the faces(. - + 60 Haw. at 642, 594 P.2d at 623-24 (citation and ellipsis omitted) ‘Thus, although che Soard’s ultimate decision was not clearly ‘erroneous for tho reasons set forth in section 1.8 infra, it ie important for Sauinistrative agencies to be complete in thelr factual findings to encourage Confidence in “reasoned decision Raking by the agency.* Nakamura, 98 Hawai's av 276, 47 P.3d at 743 (Acoba, J, joined by Ramil, J., concurring in part and Gissenting in part) (citation omitted); cf. Zaaua 2. Kea House Restauranc, 97 Mawal't 402, 412, 38 P.34570, 580. (200i) {acoba, J-> concurring in part and Gissenting in part}. (*Pindings and conclueione by an administrative agency in fa contested case must be reasonably clear to enable the parties and the court foagcertain the basis of the agency's decision.") 325- 5. Pursuant to Maui County charter section 3- 3, to be eligible for election or sppoinement to the council, a person mst be a citizen of the united States, ‘a voter in the county, a resident of the county for a period of ninety’ (30) days next preceding the flting of"nonination papers and at the cime of the filing of nomination papers, a resident in the area from which the person’ seaks to be elected. ‘6. Pursuant to [HRS] § 11"13(1),, for election purposes, Mr. Yaho'chalahala’s residence is that place Tn'which his habitation is fixed, and to which, whenever he is absent, he intends to return. T° pursuant to [HRS] 6 11-1312), "Cal person does not gain residency in any precinct into which the Derson comes without the present Intention of establishing the person's permanent dwelling place within such precinee." Pursuant ‘to (HRS) § 11-1313), *(4)E @ person resides with the person's family in one place, find does business in another, the former te the person's place of residence: but any person having a Family, who establishes the person's dwelling place other than with the person's family, with the {ntention of remaining there shail be considered a Fesident where the person haa established such Guelling place.” De purauane eo [HRS] § 12-13(4), *[eIhe mere intention to acquire a new residence without physical Presence at such place, does not establish residency, either does mere physical presence without the Concurrent present. intention to establish such place a5 the persen’s residence.” 30. Pursuant to (HRS] § 11-13(5), *fa]_person does not gain or lose a Fesidence solely by reason of the person's presence or absence while employed in the Service of the United States or of this state, or While a student of an Snatitution of learning, or While kept in an institution or aaylum, of while Gontined ina prison." Sr." § fational, sensible, and practicable interpretation of a statute 18 preferred to one which ig unressonable or impracticable, inasmuch as the legislature is presuned not to intend an absurd result, and legislation will be construed to avoid, if possibie, inconsistency, contradiction, and {Hogicaitty. organ V_ Planning Depavenent, county of Kauai, 104 wawait 175, 66 p.2d 962 (2008) 12, In order to velinguish one’s domicile or residence there mist be an invent to remain persanently at the new place where one is physically resent and to simultaneously abandon the previously Permanent place of abode. Acquisition of the new Gomiciie mist have been completed and the animus to Fenain in the new location fixes, before the former Gomiciie can be considered lost.” See kata v,. -26- "POR PUBLICATION IM WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*** Bommel, 125 F.Supp. 6 1D. Hawai! 1954); Zoweld v. Bowell, 40 Haw. 625" (2954); Anderson v. Anderson, 38 Maw. 261 (1940); Zumwale vi Zumale, 23 Haw. 376 (I3i6). Residence 18 not lost by ® temporary absence nor by maintaining @ temporary home elsewhere. Hurley okpdaen, 30 Haw. 887 (29291 3. The party initiating the proceeding shall have the burden of proof, including the burden of Producing evidence as weil ag the burden of persuasion by a preponderance of the evidence. [HRS] § 91-10(51> Tawai's Administrative Rules (HAR)) § 2-51-43 (3) V4. Mr. Dupree, as the person initiating ‘the proceeding, presented sufficient credible evidence co Drove by a presonderance that Mr. Kaho‘ehalshala dia Rot abandon his residence in tahaina, Maul... and id not relocate his permanent residence to Lana'l to city, Lay becrsrox Based upon the foregoing findings of fact and conclusions of law, the Board sustains Mr, Dupree’s appeal of the County Clerk's October 10, 3008 determination and the County Clerk's deciaion’ te hereby overruled. Por purposes of this 2008 election, Mr. Kaho'ohalahale te @ resident of Lahaina, Maui(.) Tn the event of an appeal of this decision, Me Kaho'chalahale shall be allowed co vote “provided that the bailot Le placed ins sealed envelope to be later counted or rejected in accordance with the ruling on appeal." Sea (HRS) § 12-25(6) ‘Three days after the issuance of the Board’s decision, Kaho'ohalahala won the general election for the Lana'i seat on the Maui County Council Hiraga and Kaho'ohalahala both appealed to the Intermediate Court of Appeals from the Board's November 1, 2008 decision. on June 10, 2009, Dupree applied for mandatory and discretionary transfer of the appeal to this court. on July 1, 2009, this court granted the transfer on both grounds. XI, ISSUES ON APPEAL Kaho'chalahala raises the following issues on appeal -27- }POR PUBLICATION IN WEST’S HAMAI'T REFORTS AUD PACIFIC REPORTER’ 1) “The Board lacked jurisdiction to hear and resolve Dupree’s appeal because Dupree never challenged kaho'ohalahala’s voter-registration status." Specifically, Kaho’chalahala challenges Findings of Fact (Fs0F) No. 3 and 4 and Conclusions of Law (ce0L) No. 2 and 3 of the order denying his motion to dismiss, and FOF No. 3 and CsOL No. 2-5 of the Board’s November 1, 2008 decision. 2) “The Board erred in reversing the clerk’s ruling because Dupree failed to adequately prove that Kaho'ohalahala[’s] residence was uahaina, Maui. Specifically, Kaho'ohalahala challenges FsOF No 5, 7, 8, 13, 14, 16 and 19 and Cs0L No. 4-6, 12, and 14 of the Board's November 1, 2008 decision Hixaga raises the following issues: 1) “The [Board] exceeded its statutory authority and jurisdiction(.]* Hiraga argues that although the Board has jurisdiction to determine voter registration eligibility, "the (Board's) decision improperly expanded the Board's jurisdiction co rule on whether Kaho'ohalahaia’s candidacy for County office met the criteria set out in the County Charter” and it lacked juriediction to determine residency “for election purposes." Specifically, Hiraga challenges Fs0F No. 2 and CsOL Nos. 3, 4, 5, and 6, and the “Decision” section of the Board's November 1, 2008 decision. 2) “the (Board) erred in considering and relying on immaterial and irrelevant criteria for residency, ]* including the letters of citizen complainants who did not appeal Hiraga’s opinion or testify at the hearing on appeal," as well as However, Hixaga failed to provide any argunent in his briet with regard to whether it was appropriate for the Board to rely on the letters from the other complainants, and accordingly this point is waived. Hawaii Rules of Appellate Procedure (HRAP) Rule 28(b) (7) (+Pointe not argued may be deaned waived."). In any event, although the Soard referred to the letters in FOF No. 15, there 4a no indication that the Board relied on the Letters tn Feachifg its decision. Moreover, HAR § 2-51-43(h) provides chat "rules of evidence in HRS § 91-10 shall be applicable to appeals co the Boards of Registration, and HRS § $1-10(1) provides, with some limitations, that ‘any -28- s++foR PUBLICATION IN MEST’S HAWAT'T REPORTS AND PACIFIC REPORTER*** whether Kaho'chalahala worked on Lana’, owned a house or business there, kept a car there, or had been seen by Dupree there. Specifically, Hiraga challenges Fs0F 12, 13, 14, and 15. 3) CSOL No. 3, 4, 5, and 6 are erroneous because "the [Board] lacked statutory authority and jurisdiction to draw these legal conclusions." In addition, COL No. 14 ‘does not accurately state the law and is not supported by the evidence." 4) ~The [Board] erred in concluding that Dupree had met his burden of proof[.]* III, STANDARDS OF REVIEW A. Adainistrative Agency Conclusions of Law and Findings of Fact while the parties agree that findings of fact should be reviewed for clear error and conclusions of law should be reviewed uider the right/wrong standard, they disagree on the standard applicable to the Board's ultimate determination that Kaho'ohalahala was a resident of Lahaina rather than Lana'i Kaho'chalahala states that findings of fact and conclusions of law that present mixed questions of law and fact are reviewed under the clearly erroneous standard. Hiraga states that the principle issue in this case is whether he correctly interpreted HRS § 11-13 that Kaho'chalahala was a Lana‘i resident, which is a conclusion of law reviewable under the right /wrong standard. Dupree states that the Board’s determination that Kaho‘ohalahala oral or documentary evidence may be received. -29- 'YOR PUBLICATION IN EST’S HAWAI'T REVORTS AND PACIFIC REPORTER*: was not a Lana'l resident is entitled to *a presumption of validity[,"] citing Keliipuleole v, wilson, 85 Haw. 217, 226, 941 P.2d 300, 309 (1997). Tn Del Monte Fresh Produce (Hawaii), Inc. v, Int’) Longshore & Warehouse Union, 112 Hawai'i 489, 146 P.34 1066 (2006), this court identified the applicable standard of review as follows: An agency's conclusions of law are reviewed de novo, while an agency's factual findings are reviewed for clear fact and law is reviewed under the clearly erroneous ‘Miandad -becouse the conclusion ia -deneodent upon the tacts ing As a general matter, a finding of fact or mixed determination of lew and fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding or determination, oF (2] despite substantia! evidence to Support the finding of determination, the appellate court is Jefe with the definite and firm conviction that a mistake inne been made. Substantial evidence is credible evidence which is of sufficient quality and probative value to enable I person of reasonable caution to support @ conclusion Ad. at 499, 146 P.3d at 1076 (emphasis added) (internal quotation marks, citations, and brackets omitted); see Siexra Club v. Dep't of Transp., 115 Hawai'i 299, 167 P.3d 292 (2007) (holding that in general, an agency’s conclusion of law that presents mixed questions of fact and law is reviewed under the clearly erroneous standard, but questions concerning whether an agency has followed Proper procedures or considered the appropriate factors in making its determination are questions of law which are reviewed de novo); Beroutka v. Cronin, 117 Hawai'i 323, 326, 329-30, 179 P.3d =30- ‘*+POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REFORTER*** 50, 1053, 1056-57 (2008) (holding that *(w]here both mixed questions of fact and law are presented, deference will be given to the agency’s expertise and experience in the particular field and the court should not substitute its om judgment for that of the agency(,]* and that the Chief Election Officer did not clearly err in rejecting signatures on a petition for inclusion on the presidential ballot (citation omitted)) B. gurisdiction “the existence of jurisdiction is a question of law that we review de novo under the right/wrong standard.’ Captain Andy's Sailing, I D State of Hawai'i, 113 Hawai'i 194, 192, 150 P.34 833, @d1 (2006) (internal quotation marks, brackets, and citation omitted). ©. Interpretation of a statute Stnterpretation of a statute is a question of law which we review de novo." Kikuchi v, Brown, 110 Hawai'i 204, 207, 130 P.3d 1069, 1072 (App. 2006) (internal quotation marks and citation omitted). XV. DISCUSSION A. The Board had jurisdiction to consider Dupree’s appeal o31- ‘s++POR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTERS** 1, Miraga had the authority to initiate an investigation based on Dupree’s letter to him Kaho'ohalahala argues that the Board did not have jurisdiction to hear Dupree’s appeal because *{Dupree’s] initial complaint to (Hiraga] did not challenge Kaho'ohalahala’s voter registration{,]* but instead sought to “declare Kaho'halahala an ineligible candidate." However, for the following reasons, we conclude that Hiraga acted within the scope of his authority in construing Dupree’s letter ae a challenge to Kaho'chalahala’s right to vote as a Lina'i resident. HRS §§ 11-25 and 12-8 impose two distinct responsibilities on county clerks, First, under HRS § 12-8(a), a voter may challenge a candidate’s nomination papers based on the candidate's assertion of residency. See HRS § 12-8 (a voter may file an objection to a candidate's nomination papers up to 30 days prior to the primary or special election day); MRS § 12-3 (Nomination paper: format; Limitations{}*) (a candidate's nomination.papers must include the "residence address and county in which the candidate resides"). Upon receipt of an objection to nomination papers, the clerk has the authority to issue a preliminary decision, and to file a complaint in the circuit court if the clerk determines that disqualification may be 332 'YOR PUBLICATION IM WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER* warranted.‘ HRS § 12-8(d) & (e). Second, under HRS § 11-25, a registered voter may also challenge ancther person's right to be or renain a registered voter based on that person's assertion of residency. See HRS § 11-25(a) (noting that prior to election day, a voter may challenge another person's right to be or renain a registered voter “for any cause"); HRS § 11-15 (1993 & Supp. 1998) (application to register*) (requiring a person seeking to register to vote to submit an affidavit which includes a declaration of that person's residence). upon receiving a written challenge signed by the registered voter and “setting forth the grounds upon which it is based," the clerk is required Rs § 12-814) & (e) provider (a) except for objections by an officer of a political party filed directly with the eieuit court, the chief election officer or the clerk in the case of County offices shall have the necessary powers and authority to reach a preliminary decision on the nerits of the sbjection; provided that nathing in this Subsection shall be construed to extend toe Candidate right to an adniniserative contested case hearing as defined in section 91-1(3) The chief Glection officer or the clerk in the case of county Offices hall render a preliminary decision not later than five working days after the objection is filed. (e) If the chief election officer or clerk in the case of county offices determines that the objection may warfant the disqualification of the Sandidate, the chief election officer or clerk shall file a complaint in the circuit court for a determination of the objection; provided that such complaint shall be filed with the clerk of the circuit Gourt not later than 4:30 p.m. on the seventh working Gay after the objection was filed -33- se+F0R PUBLICATEON IN WEST'S HAWAE'T REFORTS AND PACIFIC REFORTER*** to notify the person challenged and to “investigate and rule on the challenge’ as soon as possible. HRS § 11-25(a). Dupree’s letter to Hiraga alleged that although Kaho'ohalahala was from Lana'l and had family there, he did not Live there. Dupree alleged that Kaho'ohalahala did not own a hone, own or manage a business, or work on Lana‘i. Dupree stated that Kaho'ohalahala had not campaigned on Lana‘, and that he had not been seen around the island shopping, going to the post office, filling up his tank at the gas station, or driving on his way to catch the commuter boat to Maul. In sum, Dupree’s letter set forth a detailed factual basis in support of his contention that Kaho'ohalahala was not a resident of Lana‘i. As Kaho'ohalahala observes, Dupree’s letter focused on Kaho'chalahala’s residency for the purpose of challenging his eligibility as a candidate from Lanai, rather than his right to vote on Lana'i. However, that does not mean that Hiraga was required to ignore Dupree’s factual allegations insofar as they cast doubt on the legitimacy of Kaho'chalahala’s voter registration on Lana'i. To the contrary, Hiraga acted within the scope of his authority when he construed the letter as a challenge to Kaho‘chalahala’s right to vote as a Lana‘i resident, and initiated an investigation on that basis, See Am, Newspaper Publishers Ass'n v, NLRB, 193 F.2d 782, 900 (7th Cir. 1951) (in ae unfair labor practice proceeding under the Labor Management Relations Act, court observes that when a complaint ‘clearly describes an action which is alleged to constitute an unfair labor practice but fails to allege which subsection of the Act has been violated or alleges the wrong subsection, such failure or mistake, if it does not mislead the parties charged, does not prevent the (National Labor Relations Board] from considering and Peraament United Sales. Inc. ve NERS, 920 F.2d 130, 135-136 (2d Cir. 1990) (NLRB order finding deciding the charge so presented") that employer violated a section of the National Labor Relations Act not charged in the complaint was enforceable, where the employer had notice of the allegedly unlawful acts and the issue had been fully litigated); cf. Maha‘ulepu v. Land Use Com‘n, 71 Haw. 332, 335, 790 P.2d 906, 908 (1990) (*ordinarily, deference will be given to decisions of administrative agencies acting within the’realm of their expertise."); see also Haole v. State, 111 Hawai'i 144, 152, 140 P.34 377, 385 (2006) ("it is well established that an administrative agency's authority includes those implied powers that are reasonably necessary to carry out the powers. expressly aranted. The reason for implied powers is that, as a practical matter, the legislature cannot foresee all the problens incidental to carrying out the duties and responsibilities of the agency.") (2006) (emphasis added). -35- ‘s*+POR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER Hiraga’s decision to investigate in these circumstances did not cause unfair surprise or undue prejudice to Kaho'ohalahala. In Perry v, Planning Commission, 62 Haw. 666, 685-86, 619 P.2d 95, 108 (1980), this court held that pleadings in administrative proceedings are to be construed liberally rather than technically. In Berry, the appellants sought a special permit from the County of Hawaii Planning Commission and the State Land Use Commission to use land within an agricultural district for "quarrying" purposes. Id, at 669, 619 P.2d at 99. After the permit was granted, several owners of property adjoining the proposed quarry site appealed, arguing that the permit exceeded the scope of the application by including permission for a screening and crushing operation. Id. at 673, 619 P.2d at 101. ‘The circuit court agreed, and invalidated the permit. Id at 685, 619 P.2d at 107. This court reversed, holding that although the appellants originally sought permission only for “quarrying operations,“ the full extent of the proposed operations was fully disclosed in additional documents, the notice of the public hearing, and during the public hearing, and that communications between the adjacent land owners and the commissions *reveal(ed] an awareness that the proposed use extended beyond" quarrying. Id, at 685, 619 P.2d at 107. In finding that the "circuit court’s holding is contrary to -36- ‘sesv0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*** Prevailing principles of administrative law that regard such formalism with disfavor(,]* id. at 686, 619 P.2d at 108, this court stated: Modern judicial pleading has been characterized as Sinplified notice pleading. Tes function is to give Sppoeing parties fair notice of what the claim is and the grounds upon Fests.” That the same, if not more lenient st alee governs administrative pleadings is indisputable, Id, at 685, 619 P.2d at 108 (citation, internal quotation marks and ellipsis omitted) ‘This court went on to cite Aloha Airlines, Inc. v Civil Aeronautics Bd., 598 F.2d 250 (D.C. Cir. 1979) as follows: Pleadings in adninistrative proceedings are not judged by the standards applied to an indictment at coanon Yaw. re te ufticient tf the respondent understood the issue and was afforded full opportunity to justify Les conduct during the course of the Litigation ‘Thos, the question on review is not the adequacy of the pleading but is the fairness of the whole procedure: erry, 62 Haw, at 686, 619 P.2d at 108 (quoting Aloha Airlines Inc., 598 F.2d at 262 (internal quotation marks and ellipsis omitted) ) The analysis of Berry is instructive here, since there were multiple forms of relief possible (loss of voter registration in a particular precinct under HRS §§ 11-25 and 11- 26, disqualification as a candidate under HRS § 12-8) based on the same underlying factual allegation concerning Kaho'chalahala's residency. Bven in the context of civil -3- ‘s*0F0R PUBLICATION IN WEST'S HAAr'T REFORTS AND PACIFIC REPORTER*** pleadings, the failure to expressly plead a particular claim for relief is not dispositive, where the complaint alleges the underlying facts relating to that claim and there is no prejudice to the opposing party. Suzuki v, State, 119 Hawai'i 288, 296, 196 P.3d 290, 298 (App. 2008) (plaintiff's complaint construed as including a claim for race discrimination) Moreover, Dupree was proceeding pro se when he submitted his letter to Hiraga. Pleadings prepared by pro se litigants Should be interpreted liberally. see Giuliani v. Chuck, 1 Haw. App. 379, 385-86, 620 P.24 733, 737-38 (1980) ("the rules [of civil procedure] do not require technical exactness or draw refined inferences against the pleader; rather, they require a determined effort to understand what the pleader is attempting to set forth and to construe the pleading in his favor. This is particularly true when a court is dealing with a complaint drawn by a layman unskilled in the law. Kaho'ohalahala does not allege that because Hiraga construed Dupree’s letter as a challenge to his residency for voter registration purposes, Kaho‘ohalahala was denied full opportunity to be heard in opposition. on the contrary, Kaho'ohalahala acknowledges that Hiraga contacted him the day after receiving the first two complaint letters, informed Kaho'ohalahala that he was construing the complaints as -3e- ‘s++FOR PUBLICATION IN WEST'S HAWA'T REPORTS AND PACIFIC REPORTER! challenges to his voter registration status pursuant to HRS § 25, stated that he would conduct an investigation on the ma and asked Kaho'chalahala to respond to the allegation. Kaho'chalahala responded both by alleging that he was a resident of tana'i, and by arguing that the complaint letters were untimely challenges to his nomination papers. Kaho'ohalahala continued to argue this point in his motion to dismiss, his petition for writ of mandamus, and at the October 31, 2008 hearing on the merits. From the start, he was notified of the allegations and took full advantage of the opportunity to respond. Although Kaho'ohalahala disagrees with the outcomes of the various rulings, he was not denied a fair opportunity to respond. In sum, Hiraga acted within the scope of his authority in construing the complaint letters as a challenge to Kaho'ohalahala’s residency under HRS § 11-25, and investigating on that basis. The Board therefore did not err in denying Kaho'ohalahala’s motion to dismiss, and had jurisdiction to hear Dupree’s appeal from that aspect of Hiraga’s decision."” YT ds unclear whether Kaho'shalahala also challenges the sutticiency of Duproe's Octoner 20, 2008 letter of appeal to the Bosra However, since we are cbligeted to ensure the existence of Jurisdiction, gee 073 Haw. 8,14, 828 2.28 260, 263 (19921; Hawadi Nomt Alliance Auaoc, vind. Comm'x, 106 Wawai's 21, 153; 100 p.3a 952, 167 12008), we nave reviewed that letter and conclude ¢ kt gufticiently challenged Kaho'ohalahaia’s voter registration status for th Board to have jurisdiction to hear che appeal -39- ‘s*4POR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER*** ‘Therefore, the Board did not clearly err in entering Fs0P Nos. 3 and 4 in the order to dismiss and Fs0P Nos. 2 and 3 in its November 1, 2008 decision. Nor was the Board wrong in entering cs0L Nos. 2 and 3 in the order denying his motion to dismiss, or Cs0L Nos. 2-6 in the Board’s November 1, 2008 decision 2, the Board dia not exceed its jurisdiction by referring to Kaho‘ohalahala’s candidacy and the residency vequirement of the Maui County Charter Hiraga concedes that the Board had jurisdiction to hear Dupree's appeal insofar as it challenged Kaho'chalahala’s voter registration status. However, Hiraga argues that the Board exceeded its jurisdiction in parts of its Novenber 1 Decision by addressing matters related to Kaho'ohalahala’s candidacy Specifically, Hiraga challenges FOF No. 2, which states that Kaho'ohalahala “is a candidate for the Maui County Council for the seat designated for the resident of the Island of Lana‘i[.]* Hiraga next challenges Cs0L Nos. 4 and 5, which summarize maui County Charter §§ 3-1 and 3-3 and state that the council shall be composed of nine members, including one who is a resident of HRS § 11-26(a) provides that in instances where the clerk rules on fa challenge to voter registration prior to election day, "the person ruled agsinst may appeal from the ruling to the beard of registration(.|*" In his October 20, 2008 letter to the Soard, Dupree alleged chat Kaho'ohalahala ‘misrepresent (ed) hinself on his vorer registration, IMs nomination papers and his sworn affidavit." Dupree’s appeal thus sufficiently notified Kaho'chalahala that Dupree waa chatienging hia residency for voter Fepistration purposes, and Fahoohalshale was given 2 full opportunity to Fespond. faxky, 62 Haw. at 685-86, 619 7.2 108. -40- -FOR PUBLICATION IW WEST'S HAWAI'I REPORTS AKD PACIFIC REPORTER* Lana'i, and that to be eligible to run for the seat, the candidate must be a resident for 90 days next preceding the filing of nomination papers. Kaho'chalahala also argues that the ‘maui County Charter references indicate that the Board's decision went beyond its statutory authorization" in that they ‘suggest that Kaho'ohalahala did not truthfully certify in his nomination papers that he qualified to run for the Maui County Council.* .Hiraga also challenges CsOL Nos. 3 and 6, which discuss the challenge to Kaho‘ohalahala’s residency ‘for election purposes," as well as the portion of the decision holding that Kaho'ohalahala is a resident of Lahaina *[£lor purposes of the 2008 election{.]" Hiraga argues that by including these passages, the Board not only ruled on Kaho‘ohalahala’s voter registration, but also exceeded its jurisdiction and ruled on his qualifications as a candidate as well. For the following reasons, we disagree with this interpretation of the Board’s ruling FOF No. 2, which states that Kaho'ohalahala is a candidate for the Lana‘i seat, is an undisputed fact and the Board did not exceed its jurisdiction by including it because it provided background and context for the appeal. CsOL Nos. 4 and 5 contain extraneous information on the Maui County Charter and the residency requirement for running for a council seat, and it -41- FOR PUBLICATION IW MEST’S HAWAT'T REPORTS AND PACIFIC REPORTER! is not clear from the record why the Board included them in its ruling. However, any error in including them is harmless because they were not material to the Board’s holding and do not purport to address Kaho'ohalahala’s candidacy. Finally, although the Board stated in several instances that it was ruling on residency “for election purposes,“ it is apparent from the Board's decision that it was not purporting to rule on whether Kaho'ohalahala was properly a candidate, but only on whether he was properly registered to vote. First, the phrase “for election purposes” appears in HRS § 11-13, which sets forth the rules for determining residency for voting purposes. HRS § 11-13 ("The following rules shall determine residency for election purposes only{.J"). Thus, the Board’s reference to that phrase does not imply that it was making any determination with regard to his candidacy. Second, the limited scope of the Board's holding is also apparent when the challenged phrase is examined in the context of the relief granted by the Board. Cf. Tavlor-Rice v. State, 91 Hawai'i 60, 75, 979 P.24 1086, 1101 (2999) (clarifying the scope of a challenged conclusion of law by viewing it in context with the trial court's other findings and conclusions). tn the “Decision” section of its November 1, 2008 decision, the Board stated that, pursuant to HRS § 11-25(c), if Kaho‘chalahala chose to appeal, he would be allowed to vote -42- FOR PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER* vprovided that the ballot is placed in a sealed envelope to be later counted or rejected in accordance with the ruling on appeal." ‘The decision did not mention any possible consequences for Kaho'ohalahala‘s candidacy under the provisions applicable to a candidate whose nomination papers have been successfully challenged. See HRS § 12-8. Accordingly, the Board ruled only on Kaho'chalahala’s right to be or remain a registered voter, which was within the scope of its jurisdiction. HRS §§ 11-25(a) and 11-26(b) (1993). Thus, the Board did not exceed its jurisdiction in entering FOF No. 2, Cs0L Nos. 4 and 5, and by stating that it was determining Kaho'ohalahala’s residency for purposes of the 2008 election. B. The Board did not clearly err in finding that Kaho‘chalahala was not a resident of Lina'i for the purpose of voting in the 2008 election The starting point for our analysis is HRS chapter 11, which is entitled “Elections.* HRS § 11-12 (1993) provides that a person may not register to vote in a precinct other than that in which he or she resides. HRS § 11-13 provides in relevant part as follows: dency. For the is title, there can be only one residence widual, but in determining residency, a person may. jolt separate from the person's ‘Spouse. The following rules shall determine residency Hor election purposes only: (2) “The residence of a person is that place in which the person's habitation is fixed, and to “hich, ‘whenever the person 1s absent, the person -423- +*POR PUBLICATION IN WEST'S HANATT REPORTS AND PACIFIC REFORTER!** hae the intention to return; (2) “A person does not gain residence in any precinct into which the person cones without, che Present intention of establishing the person's Permanent dvelling place within euch precinct; (3) Tf a person resides with the person" family in one place, and does business in another, the former {a the person's piace of Fesidence; but any person having a family, who establishes the person's dwelling place other than with the person's family, with the intention of remaining there chal! be considered a resident where the person has established such Gvelling place: (a). the Bere intention to acquire a new residence without physical presence at such Place, does not establish residency, neither Goes more physical presence without the concurrent’ present intention to establish such place as the person's residence: {5}. A person does not gain or lose a residence solely by reason of the person's presence or absence while employed in the service of the United States or of this state, or while a Student of an inetitution of learning, or while Kept in an inetitution er asylum, or while confined in & prison; ia] “a'person 1oses the peron’s residence in thls Scate If the person vates in an election held in another state by absentee ballot or in person. Tn case of question, final determination of Fealdence shall be made by the clerk, subject to appeal to the board of registration under part THT of this chapter, HRS § 11-13 was enacted in 1970 as part of a comprehensive revision of the State’s election law." The House Although Lt has been anended several tines since then, chose amendments are not relevant to the substance of this appeal. For example, in 1975, the introductory paragraph of HRS # 11-13 was amended co eliminate a requirement that if "a husband is a resident of this state, then the Feridency of the husband shall determine the residency of che wife.” Comare 1970 Haw, Sess. Laws Act 26, § 2 at 19-20 wich 1975 Haw. Sess, Laws Act 6, 5 i at 49-50. I 1977, the Legislature, inter alia, eliminated a provision for Computing the length’ of residence, 1977 Haw. Seao. Laws Act 189, 8 1 at 403- Og” No substantive changes have been made co HRS § 11-13 since then. Since ite adoption in 1970, there have been no published Hawai'i cases interpreting HRS § 11-13. 44 “*+POR PUBLICATION In WEST’S HAWAr'T REPORTS AND PACIFIC REPORTER*** Judiciary Committee stated that *(tJ)he purpose of the bill is to consolidate, streamline, and update all the material relating to elections presently scattered throughout the statutes." Stand. Comm. Rep. No. 1178, in 1969 House gournal, at 852. Prior to the 1970 recodification, the Hawai‘ Revised Statutes provided that *(nJo person shall register or vote in any other precinct than that in which he resides,“ but provided no guidance on determining residency other than noting that “[i]f any person resides in more than one precinct he may elect in which precinct he will register, but he shall register in one precinct only." HRS § 11-2 (1968). Similar provisions were * WRS § 11-2 (1968) stated as follows Age, place of registering and voting. Every person ho has reached the age of twenty years, or who Will have reached the age of twenty years on or before the date of the next election, and is cthervise qualified to register may do go in the precinct in nich Re resides.” No person shall register or vote in any other precinct than that in which he resides; provided, that where there is a mistake in placing the ane of the elector on the list of electors of a Drecinct in which he does not actually reside, che elector shall nevertheless be allowed to vote therein, it otherwise qualified: and the chairman of the inspectors of election of the precinct where the elector has voted shall notify the county clerk of the error in order chat the nane of the elector may De Placed on the next succeeding list of electors of the Brecinct where he actually resides 3E any person resides in nore than one precinct hhe may elect in which precinct he will register, but he Shall resister in one precinct only 45- ‘s*+¥0R PUBLICATION IN WEST'S ERWAT'T REPORTS AND PACIFIC REPORTER’ included in Hawai'i’s election laws since at least 1897.” In enacting HRS § 11-13, the Legislature noted that *[rlesidency has been clarified’ to address various issues, including the ‘many instances of voters residing in one area of the State and claiming residency in another." H. Stand. coma, Rep. No, 1178, in 1969 House Journal, at 852; $. Stand. Comm. ® civil Laws of the Mawaiian Island 1897, Appendix at § 28, stated as follows Piace of registering and voting. Every person qualified to register may do so in the Precinct in hich Ne resides; and no person shail register or vote Yn any other [plrecinct chan that in which ne resides Tf any person resides in more than one (wirecinct, ne may elect which [plrecinct he will register in: but he shall register in one [plrecinct oniy Provided, however, that at any epecial election, any person who has previously registered, and since registering has moved his residence to another precinet without having had an opportunity to register therein, may vote in the precinct in which he was last Fesistered. % Specificaliy, the House Judiciary Committee report provided: 21a. Residency has been clarified by jtablishing that a person may only reside in one place and my only register to vote from that place. there are many instances of voters residing in one area of the State and claiming residency in Shother. ‘There are also inseances of out-of-state Fesidents declaring the intent of becoming Hawaii state residents pricr to the tine they are physically {peated in the State. there are also many instances ofa mate resident of this state marrying a fenale Yesident of another state, who under the present law hay not vote in this state until she has physically Tocated here for one year, Under the present law the voting zesidence of the above people ie vague -46- ‘++P0R PUBLICATION IN WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER* Rep. No, 830-70, in 1969 Senate Journal, at 1374-75. Im substance, HRS § 11-13 sets forth general requirenents for establishing residency in subsection (1), and then provides additional rules in subsections (2)-(7) that address specific situations that may arise. the definition in subsection (1) requires the voter to both have a “habitation . fixed* in the place where the voter registers, and to have the intention to return to that place whenever absent. That formulation adopts a commonly stated test for determining domicile, which has been used by many other states to evaluate residency for voter registration purposes, see Note, Collece ‘Student Voting: A New Prescription for an Old Ailment, 56 Syracuse L. Rev. 145, 151 (2005) (noting that “state election laws uniformly equate ‘residence’ to ‘domicile’* + as well as by this court in cases decided prior to the 1970 recodification, see Ince Hurley, 30 Haw. 887, 996-97 (1929). Additionally, this court has used similar formulations of the test to evaluate domicile in other contexts. Yamane v, Piper, 51 Haw. 339, 340, 461 P.2d 131, 132 (1969) (defining -resident~ in terms of ‘domicile’ when determining whether a person is a resident of he relevant portion of the Senate Judiciary Coamittes report was identical to the House Judiciary Committee report. -4a7- "FOR PUBLICATION IN WEST'S NAWAI'T REPORTS AND PACIFIC REPORTER*** Hawai'i for income tax purposes); Blackburn v, Blackburn, 41 Haw. 37, 40-41 (1955) (construing "resided" to mean "domiciled* in the divorce context); Rowell v. Powell, 40 Haw. 625, 628-30 (1954) (applying domicile principles to evaluating whether husband was a resident of the Territory of Hawai'i for the purposes of a separate maintenance suit). HRS § 11-13(4) addresses changes in residency, and provides that “[t]he mere intention to acquire a new residence without physical presence at such place” is not sufficient to establish a new residence. Thus, consistent with HRS § 11-13(1), this section requires both action and intent on the part of the voter before a new residence is established. The requisite intent is to ‘acquire a new residence." HRS § 11-13(4). This necessarily implies a concurrent intent to abandon his or her prior residence, since a person can have only one residence under the statute. HRS § 11-13 ("there can be only one residence for an individual” In the instant case, the Board found chat Kaho‘ohalahala was a Lana'i resident up to the 2006 election. There is substantial evidence to support that finding. The record establishes that he was born and raised on tana‘i, had family there, returned periodically over the years, was registered to vote there from 1982 up until 2006, and although he -48- s*4POR PUBLICATION I WEST’S HAMAI'T REPORTS AND PACIFIC REPORTER lived and was employed elsewhere at various times, his stated intent was always to return, However, in 2006, Kaho'ohalahala changed his voter registration to Lahaina, where he was living and working at the time. The Board found that by so doing, he lost his residency on Lana'i. The Board did not clearly err in reaching that conclusion. By registering to vote in Lahaina, Kaho'ohalahala represented that it was his place of residence. See HRS § 11-13 ("there can be only one residence for an individual"); HRS § 11- 15 (a citizen seeking to register to vote must submit an affidavit including a declaration of his residence). That statement of intent, together with his habitation on Maui, established Maui as his residence. HRS §§ 11-13(1) & (4). Courts from other jurisdictions that apply a domicile test have concluded that the act of registering to vote or voting in a new district results in the loss of residence in a district where the voter previously resided. See Klumker v. van Allred, 811 P.2d 75, 78-79 (N.M. 1991) (finding that three brothers were not residents of the county where their fanily ranch was located because, although they visited the ranch regularly and kept personal items there, they had moved outside the county and voted at those locations); Kauzlarich v. Ad, of Trs., 278 P.2d 888, 891 (Ariz. 1955) (husband and wife were not residents of a county for -49- “FOR PUBLICATION IN WEST'S HAAI'T REPORTS AND PACIFIC REPORTER‘ voting purposes even though they purchased property there, moved fa house and some personal property onto the premises, and went there each weekend to work on the property with the intention of moving there because they were still living outside the count: where they had registered to vote and voted); gee also Del Rio Indep. sch, Dist, v, Aldrete, 398 §.W.2 $97, 603 (Tex. 1966) (noting that the place where a person votes is evidence of whether that person’s actions corroborate his stated intention to change his residence for voting purposes) Kaho'chalahala and Hiraga both argue that because Kaho'ohalahala was working for the State of Hawai'i when he was on Maui, HRS § 11-13(5) provided that he would not lose his Lana'i residency. However, that statute provides that *[a] person does not lose a‘residence solely by reason of the person's presence or absence while employed in the service of . . . this State{.] * (emphasis added). HRS § 11-13(5). In the instant case, Kaho'ohalahala did not lose his Lina'i residence solely by reason of being employed on Maui. Father, he lost it because he registered to vote in Lahaina. While HRS § 11-13(5) protects the preexisting residency of a state employee who retains the intent to return to his original residence in the future and acts consistently with that intent, it does not protect someone who, Like Kaho‘ohalahala, renounces that pr xisting residency by -50- ‘s*+POR PUBLICATION IN WEST’ S EAWAI'T REPORTS AND PACIFIC REPORTER*** registering to vote elsewhere. ‘Thus, when Kaho'ohalahala registered to vote on Lana’ for the 2008 election, he did so not as someone seeking to vote there after a long, unbroken period of residency on the island. Rather, it was as someone who was seeking to change his residency to Lana'i after having become a resident elsewhere, in this case Maui. In addition to satisfying the basic residency test of HRS § 11-13(1), i-e., that he had a “habitation fixed" on Lsna'i and that he intended to return there when absent, he also needed to have a sufficient “physical presence’ on Lana'i under HRS § 11-13(4) to corroborate his intent to abandon his Maui residence. ‘The Board concluded in COL No. 14 that Dupree established that Kaho‘ohalahala did not abandon his residence in Lahaina and relocate his permanent residence to Léna‘i.” The Board did not clearly err in reaching that conclusion. The Board found, and there is substantial evidence in the record to establish, that Kaho‘ohalahala did not om or work for a business on Lana'i, and did not own or rent a house or keep a car on the » tn his points of error on appeal, Hiraga contended that COL No. 14 was an inaccurate statenent of the law. fowaver, Hiraga failed to offer ay SRrounent in support of this contention, and accordingly it ie desnes waived WRAP 26(b) (7) (Points not argued may be deened waived.) in any event, although this conclusion does not directly track the provisions of HRS § 11- 13, we believe that it fairly summarizes the showing Fequired under HRS § 11- 13° (I) g°(4) in the circunstances of this case -s1- ‘**0F0R PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER island, Hiraga and Kaho'ohalahala argue that those findings are immaterial or not dispositive. while they are certainly not dispositive, they are relevant because they support an inference that Kaho'ohalahala had not established the necessary physical presence on Lana'i.™ Cf. Yamane, 51 Haw. at 340-41, 461 P.2d at 132-33 (concluding that “the pulling of stakes was complete’ and appellee was no longer a Hawai'i resident for income tax purposes when he had moved to Wake Island with his wife and children, sold his car, TV, and household furnishings, and did not leave real or personal property or an open bank account in Hawai'i) ‘The Board further found that Dupree had not seen Kaho'ohalahala at “the post office, either bank, the Lana‘i store, the gas station or any restaurant on Lana'i.* There was substantial evidence to support that conclusion as well. Once again, while none of those observations are dispositive, they are relevant. The record establishes that Lina'i is @ small, close knit community where residents would likely see each other at such locations. ‘Thus, the observations support the inference that Kaho'chalahala had not established a sufficient physical presence of tana’ % aho‘ohalahala sotes that the letters submitted by eight of che citizen complaints staved that he had a-P.0. Bor on Lanai» However, the Soard Gid'not enters finding on that Seoue; im any event, even if Keho'ohalaala had a P.O. Box on Uana'l, there ie still ingufficient evidence to establish the necessary physical presence on Lana'i 52+ WFOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER’ Although Kaho'ohalahala and his brother's affidavit established that Kaho'chalahala had been ‘welcomed’ back to his brother's home in July 2008, there was nothing in the record to establish that Kaho'chalahala actually lived there or anywhere else on Lana'i in any conmonly-understood meaning of the term. Kaho‘ohalahala’s affidavit states that his “residence is fixed at () Fraser Avenue in Lana'i City." Similarly, his brother's affidavit states that Kaho‘ohalahala “presently resides at [] Fraser Avenue (and has} resided there since the beginning of July, 2008." However, neither affidavit states that Kaho‘ohalahala actually lives at that address, or that he has stayed there for any particular number of nights, keeps personal items there, shares in paying the utility bills, or provides any other details consistent with actual residence at a particular location. Moreover, there is no evidence in the record establishing that Kaho'ohalahala had abandoned his established residence on Maui.* To the contrary, the record shows that he * _kaho'ohalahata contends in his brief that the Bosrd erroneously put the burden of proof on Kaho'ahalahala with regard to the question of ‘uhether he had abandoned his Lahaina residence after registering to vote there in 2006. However, the Soard explicitly acknowledged in COL No. 13 that Dupre had both the burden of proof and the burden of persuasion in the proceeding. MRS §91-10(5) and WAR § 2-51-a)(hI, and there fa nothing in the record to indicate that the Board misapprehended that burden. -53- ‘sse70R PUBLICATION IN WEST'S HRWAT'T REPORTS AND PACIFIC REFORTERY*® continued to work there, as did his wife,** and they continued to stay at their home in Lahaina.” Cf, Arakaki v. Arakaki, $4 Haw 60, 62, 502 P.2d 380, 382 (1972) (party in a divorce proceeding “had a job, home, family and financial obligations in this state” and accordingly was a Hawai'i resident before becoming an ‘employee of the Federal Government working in Japan‘; this court rejected his claim that he no longer was a Hawai'i resident since “[t}here is insufficient evidence in the record to rebut the presumption that appellant’s domicile in Hawai'i continued while he resided in Japan"). ‘There was evidence that Kaho‘chalahala visited Lanai after registering to vote there in guly 2008. Dupree testified that he had heard that Kaho'ohalahala was on Lanai for a rally just before the primary, and that he had observed Kaho'ohalahala on Lanai at the Aloha Festival in October 2008, when Kaho'ohalahala stayed on the island for several days. McComber also testified that Kaho'chalahala returned to Lana‘i for the % Although under HRS § 11-13 @ person may have a separate residence from that of the person's spouse, the location of one’s spouse and children Gan nevertheless be relevant to determining whether a person actually Felocated his or her residence. Cf. Yamane, 91 Haw. at 340-é1, 461 .2¢ at 152-33 (the fact that appelice had soved to Wake Teland with his wife and Ghilaves, sold thelr personal belongings, and did ot leave real or personal property or an open bank account in Hawai't, was evidence that he was no Tonger a resident of Nawal'd) P __Te dp unclear whether Kaho'ohalahala and hie wife owned or rented their hone in Lahaina o54- FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER*" rally, and that he had geen Kaho'ohalahala’s brother *pick[) him up at the dock and. . . drive(] him around* on an unidentified number of instances ‘hese visits do not constitute a sufficient physical presence on Lana‘ to establish that Kaho‘chalahala had changed his residence from Maui to Lana'i within the meaning of 11-13(4), nor are they sufficient to establish a “habitation . . . fixed* on Lana'i for the purposes of HRS § 11-13(1) in these circumstances, i.e., where a previous resident has lost his or her residence by virtue of registering to vote elsewhere, and now seeks to reestablish it. Although there are no Hawai'i cases directly on point, several cases from other jurisdictions have considered challenges to the registration of voters who sought to return to their original residence after registering to vote elsewhere. Although the voters in those cases had a nore significant physical presence in their original areas of residence than Kaho‘chalahala had on Lanai in July 2008, the courts nevertheless found that they were not properly registered in those areas. % FOP No. 13, which states that McComber testified that he *hald] pot seen Mr. Kaho'chalahala on Lana'i,* is therefore clearly erroneous However, we find the error was harnleas aince Neconber's testimony wae einilar to that of Dupree. The brief vieits by Kahohalahala to bana’ were ineufficient fo establish that Kaho'chalahala's "habitation (wale fsxed" there. HRS § 11-1312) -55- -FOR PUBLICATION IN WEST'S HANA‘ REPORTS AND PACIFIC REPORTER*** In Klunker, the New Mexico Supreme Court considered a challenge to the voter registration of three brothers in Catron County, Arizona. The brothers were born and raised in Catron County, had extended family there, and had a family homestead which they visited several times a month. 811 P.2d at 76. ‘They kept clothing and other personal effects at the homestead, and stated that they intended to return to the homestead whenever they were absent. Id, However, prior to the election in question, the brothers had all moved outside of the county with their immediate family members, had been employed and voted in their new locations, and listed the new location as their residence on their driver’s licenses, vehicle registration, tax returns, and bank accounts. Id, at 76-77. The district court found that because of a scarcity of employment in Catron County, the brothers were required to maintain a second residence in other locations, but that their habitation remained fixed at Catron County. Id. at 77. Applying New Mexico's elections statute,” the New % sew Mexico's elections statute contained the sane basic definition of renidency ao WRS § 11-13(1), Nuts, Stat, Ann. § 1-1-7(A) (est 1978), aa ell’as a lise of additional principles which is sistlar in structure to HRS § 11-13, but with sone variations in individual provisions, gee, e.d., N.¥. Stat. ann. § 1-1°7(c) (*(A] change of residence is made only by the act of Fenoval Joined with the intent to resain in ancther place.*) and (Hl (* (Ml Deron loses His residence in this state if he votes in another state in an Slection requiring residence in that state, and has not upon his return Fogained his residence in thie state under the provisions of the constitution of New Mexico-")- -56- ‘s*4POR PUBLICATION IN WEST’S HAVAZ'T REPORTS AND PACIFIC REPORTER*** Mexico Supreme Court concluded that the district court erred in finding that the Allred brothers’ habitation was fixed in Catron County, since “there was no substantial evidence that they had the requisite physical presence in Catron County." Id. at 78. Although the brothers were present in the county when they registered to vote, returned to their home in the county as often as once a week and maintained personal property there, ~(wJhat is required is not momentary, or occasional or sporadic physical presence; it is significant physical presence consistent with the ordinary conception of living (or abiding, or residing, or welling, or maintaining a habitation) in a place." Id. at 78 (emphasis in original). After noting that the brothers had lost their original residency in Catron County because they had registered to vote and had voted elsewhere, the court went on to hold “none, of the Allred brothers had a sufficient physical presence in Catron County at the time each registered to vote there in 1988 so as to effect a change in his residence for voting purposes." Id, at 79. In Kauzlarich, the Arizona Supreme Court considered an election contest alleging that the Oak Creek School District wrongfully denied a married couple their right to vote in an election. 278 P.24 at 890, The couple purchased property in the ak Creek district, moved a house and some personal property to -57- 'POR PUBLICATION IN WEST'S HAMAT'T REPORTS AND PACIFIC REPORTER: the premises, and worked on the house every weekend with the intention of making it their future home. id, at 891. The couple also stated that their residence had always been with the husband’s parents, who had moved from Beaver Creek to the Oak creek district. 4. However, the husband had been employed in Beaver Creek for the three years preceding the election, and continued to vote in Beaver Creek after his parents had moved to Oak Creek. Id, at 890. The trial court found that the husband and wife were not residents of Oak Creek for the purpose of voting in the election. Id. applying Arizona’s statute for determining residency, the Arizona Supreme Court affirmed the trial court's determination that the husband and wife were not residents of oak creek. 1d. at 892. Although the couple stated that their residence had always been with the hushand’s parents, the court found that.the “fact that (the husband) voted in Beaver Creek precinct . . . long after his parents had moved to [the] Oak Creek district, completely refutes so far as establishing his Arizona's elections statute also contains the sane basic definition of residency as HRS § 11-13(2), A.C-A. § S5-512(1) (2939), ag well a5 a list of additional principles which is similar in structure to iRS § 11- 15, "bur with sone variations in Individual provisions, gee, eae, A.C-A- § 55- 512(7) ("The place where a man's fanily permanently resides 12 his residence Unies he be separated therefron, but if it be a piace of temporary establishment for his family, or for transient chjects, it ia otherwise.) ond (8) (The rere intention to acquire a new residence vichout act of renoval avails nothing; neither does the act of renoval without ehe intention|<1*) -58- ‘**POR PUBLICATION In WEST'S HAWAI'T REPORTS AND PACIFIC REPORTER‘*# right to vote in Oak Creek precinct is concerned, the statement that he was residing with them [at that time].* Id. at 991. the court also found that the couple's claim that they resided with the husband’s parents was not supported by the evidence because they did not purchase groceries for the parents’ home or pay the parents rent or board, and the home was too small to accommodate the couple and their two small children in addition to the husband’s parents and grandparents, who lived there as well. Id. at 892, While there are some differences in the underlying statutory schemes, the rationale of these cases is instructive in applying HRS § 11-13 to the circumstances of this case. Although someone who has established residency in a place can maintain that residency despite being physically absent as long as he or she intends to return and acts consistently with that intent, see, €.0., Holton v, Hollingsworth, 514 $.8.24 6, 9-10 (Ga. 1999) {although voter left his hometowm to serve in the military and then lived in a house in another community, voter was properly registered in hometown when he maintained significant ties there and intended to return), different considerations apply once a person has. established a new residence elsewhere. HRS § 11-13(4) recognizes that principle by explicitly requiring that the person have a "physical presence’ which corroborates the person’s intent -59- /+FOR PUBLICATION IN WEST'S HAKA'I REPORTS AND PACIFIC REFORTER*** to abandon his or her prior place of residence. ‘The requirement of a ‘physical presence* in HRS § 11- 13(4) must be read in pari materia with the other provisions of MRS § 11-13. HRS § 1-16 (1993) (*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 in aid to explain what is doubtful in another.*). HRS § 11-13(1) requires the voter to have a “habitation [that] is fixed" in order to establish residency, while HRS § 11-13(2) provides that *[a] person does not gain residence in any precinct into which the person conés without the present intention of establishing the person's permanent dwelling placel.1° (emphasis added). Both habitation and dwelling place imply that the person is living at the location. Thus, the statute requires that the person seeking to relocate his residence to a new district must establich a @welling or otherwise live in the district, in the connonly understood meaning of those terms. HRS § 1-14 (“The words of a law are generally to be understood in their most known and usual signification, without attending so much to the literal and strictly grammatical construction of the words as to their general or popular use or meaning. In arguing that Kaho‘ohalahala had a sufficient physical presence on Lana‘i, Hiraga and Kaho'chalahala both invoke -60- VOR PUBLICATION IM WEST'S HAWAI'I REFORTS AND PACIFIC REPORTER" the principle that a person need not live in an area for any particular time in order to establish residence there. see o v. Anderson, 38 Haw. 261, 263 (1948) (*(T]he length of actual residence is inmaterial to the acquisition of a domicile. A day or an hour will suffice.") (citations omitted); Bowell, 40 Haw. at 630 (*Length of residence is not a factor where the act and intention to acquire a domicile concur. . . . No definite period of time is necessary to create a domicile and one day is sufficient provided the animus manendi exists (citation omitted). “As a general proposition, that principle is correct. Z£ a person who has been living on the mainland packs up their belongings and ships them to Hawai'i, flies to Honolulu and moves in with family members with the intent of making Hawai'i their permanent home, they could be considered residents from the day they arrived. at the other extreme, consider a person who has a hone in Los Angeles, flies to Honolulu and registers to vote, and then returns to Los Angeles on the same day, all with the stated intent of making Honolulu his or her permanent residence. Recognizing such a person as a Honolulu resident would render the physical presence requirement in HRS § 11-13(4) an absurdity. See State v. Haugen, 104 Hawai'i 71, 76-77, 85 P.3d 178, 183-84 (2004) ("the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, 61. -FOR PUBLICATION IM WEST’S HAWAI'T REPORTS AND PACIFIC REPORTER: inconsistency, contradiction, and illogicality*) (citation omitted). Rather, the voter in such a case would need to have a more significant physical presence in Hawai'i, consistent with the intent to abandon his or her California residence, before he or she could be considered a Hawai'i resident Kaho'ohalahala suggests that his absences from Lana'l were not relevant, since temporary absence from a residence does not result in the loss of that residence absent an intent to leave it. See HRS § 11-13(2). Similarly, Hiraga cites In re Huxley for the proposition that a county council member or supervisor need not reside exclusively in his district, and may maintain temporary homes in other places. 30 Haw. at 896-97. However, those arguments presuppose that Kaho‘chalahala had established residency on Lana‘i when he left after registering to vote there in July 2008. Since we conclude that he had not done so, the provisions of HRS § 11-13(2) do not apply to his subsequent absences, and In xe Hurley is therefore distinguishable. Hiraga contends that *[t]he key to determining In_z2 uurlev concerned @ chsllenge to the residency of a Kauai county supervisor, Eric Knudsen, in 1927. Rnudsen bad homes ané substantial business interests in both Waimes and Koloa, and split his time between the Exo locations. 30 Haw. at 890-31. ‘This court concluded that Knudsen was a Feeident of Waimea. Kiudeen ad a far nore established physical presence in Sines than Xahoohalahal did on Lanwi. Algo, although Fowdsen had been Fegistered to vote in Koloe for several onthe in 1923, he had transferred his registration vo Wainea before the 1923 election and renained registered there for the 1925 and 1927 elections. Ig. at 891-92. 362- s*+POR PUBLICATION IN WEST'S HAWAZ'T REPORTS AND FACIPIC REPORTER" residency is the person's state of mind[,)* and suggests that the Board failed to provide proper weight to evidence regarding Kaho'ohalahala‘s intent.” However, that argument is contrary to the plain language of HRS § 11-13(4), which requires an analysis of both intent and the existence of a physical presence which corroborates that intent. Cf. Blackburn, 41 Haw. at 42, 44 (in rejecting a claim by a party to a divorce proceeding that he had changed his domicile from California to Hawai‘, this court noted that *[i]ntention has always been given large consideration, but claimed intention without acts to support it is not controlling* ‘and “since actions speak louder than words the conduct of @ person is the most important evidence of his intention to acquire a domicil{e} in a place") (citations omitted). Finally, we note that there are provisions in the Hawai‘ Administrative Rules that relate to voter registration, HAR §§ 2-51-20 to -31 (2000), including a provision that % th support of this argunent, Hiraga cites to a 1986 opinion by the state Attorney General, which concluded that a legislator who temporarily, Lived outside of his district while his house inside the district was being renovated did not lose his residency in the district. Op. Attn'y Gen. 66-10 (3986), 1986 WL 80018. In reaching that conclusion, the opinion staced chat Inder section 11-13, one's state of mind determines one’s piace of residence.” Jd, siip op. at *2. However, there was nothing in the opinion te indicate chat’ the legislator had reyistered co vote in the tenporary Gsstrict cr had otherwise acted inconsistent with maintaining his residency in his original district during his tesporary absence from it. Thus, the opinion Adivesses a factual situation diatinct from that here, and the opinion's Comment about che importance of intent mist be considered in Light of ‘that, fsctual context. In any event, “Attorney General's opinions are highly instructive but are not binding upon thie court.” Taniguchi v. Age"n of Apartnent Owners of King Manors Ine, 11 tawari 37, de n-12, 153 P-3d i138, {itrenel2 (2007) (enphasie in origimal; citations omitted). 63 FOR PUBLICATION IM WEST'S EAWAZ'r REPORTS AND PACIFIC REPORTERS** addresses the determination of residency, HAR § 2-51-25.” Hiraga % aR § 2-51-25 provides in relevant part: (a) In addition to the rules for determining residency provided in MRS § 11-13, the following shall also be applicable in Setermining the residence of a person for election purposes a a ‘The residence of a person ie that place in ibich the peracn’s habieation is fixed, sihere the person intends to renain, and ‘then absent intends to return: When @ person has more than one residence (A) “rE a person faincaine a homeowner's property tax exemption on the Gwolling of one of the residences, there shail be a rebuttable presumption that the residence Subject to the homeowner's property fax exemption is that person's Fenisence, () Tf’ pereon clains a renter’s tax credit. for one of the residences, there shall be a rebuttable presumption that the residence Subject to the renter's tax credit fg that person's residence; and [c) Tf a perton has not physically resided at any one residence within the year innediately preceding the election, there shall be a Febuttable presumption that the Fesidence in which the person ha not resided is not the person's Fesidence: jen a person of this State is employed in the service of the United States, 1s'a Student of an institution of leaning, o {a in an institution, asylum, or prison (A) A’person does not gain or lose residence ina precinct or this State solely by reason on being present in or absent from a precinct or this States and 1B) A'person once having established Feeidency ina precinct shall be allowed to register and vore and to Continue to vote from the address at which the person ia reglatered even Though, while residing outside of the precinct of the State, the person no longer has a place of bode in the precinct and the person's intent co return to the precinct may be uncertain ~64- “*POR PUBLICATION IN WEST’ MAWAI'T REPORTS AND PACIFIC REPORTER*** did not refer to any of those provisions in his October 10, 2008 ruling, and the Board's Novenber 1, 2008 decision contain only a brief reference in COL No. 13 to HAR § 2-51-43(h) (*Rules of evidence as specified in HRS § 91-10 shall be applicable . . .* to a hearing before the Board challenging voter registration prior to election day). Neither Hiraga nor Kaho'chalahala contend here that the Board erred by failing to consider HAR § 2- 51-25. while this court has the discretion to notice plain error, HRAP Rule 28(b) (4), we decline to do so here since it does not appear that the outcome would be any different under HAR § 2- 51-25. In sum, the Board did not clearly err in concluding that Kaho'ohalahala was a resident of Lahaina rather than Lana‘i for purpose of voting in the 2008 general election, and that Dupree's appeal should be sustained as a result. In light of this analysis, Kaho'ohalahala’s and Hiraga’s challenges to FsOF Nos. 5, 7-8, 12, 14-16, 19 and CsOL Nos. 3-6, 12-14 in the November 1, 2008 decision are without merit. () Should a person's statue change and the person takes up residency in another precinct or state, there shal! be a Feburegble presumption that the new place of residence is that person's residence. (G)_ For purposes of this section, a rebuttable presueption is a presumption considered true unless prove false by evidence to the contrary. -65- /*P0R PUBLICATION IN WEST'S HAWAI'I REPORTS AKD PACIFIC REPORTER*** v. conciusrow We affirm the November 1, 2008 Findings of Fact, Conclusions of Law, and Decision of the Board of Registration, county of Maui. Kenneth Kupchak, Robert ‘Thomas and Christi-anne Kudo Chock (of Damon Key Leong Kupchak Hastert) for petitioner/appellant-appellee Brian 7, Moto, Corporation Counsel, and Jane Lovell, Deputy Corporation Counsel, County of Maui, for respondent /appell appellant Roy T. Hiraga Benjamin E, Lowenthal for respondent /appellee- appellant solomon Kaho'ohalahala -66-
67875660f1f726a67b3d515763304418d1cbf3f8b7d1e148402b5ea51a4dea51
2009-10-20T00:00:00Z
956063ba-e0cd-46e6-944d-385c248f8331
State v. Grindling
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29307 IN THE SUPREME COURT OF THE STATE OF HAWAI'I SOATE OF HAWALZ, Respondent/Plaincitt-Appelieg, CHRISTOPHER GRINDLING, Petitioner/Defendant-Appeliant CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS <> (cR. NO. 07-1-0533) (By: Moon, C.J., for the court") Petitioner/defendant-appellant Christopher Grindling’s vmotion for certiorari," filed on July 31, 2009, is deemed an application for a writ of certiorari to review the July 22, 2009 order of the intermediate court of appeals. The July 22, 2009 order is not reviewable by the supreme court by application for a writ of certiorari. See HRS § 602-59(a) (Supp. 2008). ‘Therefore, XT IS HEREBY ORDERED that the application for a writ of certiorari is dismissed. IT IS FURTHER ORDERED that the “motion for leave from certiorari to allow lower court to reconsider,” filed on August 2009, is also dismissed. DATED: Honolulu, Hawai'i, August 27, 2009. ron mu coonr: Z £ Justice considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald,
1a46e231621867ac1cc644d0d3a9b63e70fa46f0ef037a6ce3da0835329d4d05
2009-08-27T00:00:00Z
391e3cae-11c0-4612-a087-a69e07b2ddce
In re Cutler
null
29950
hawaii
Hawaii Supreme Court
No, 29950 IN THE SUPREME COURT OF THE STATE OF HAWAT‘) 11 RE ZAURK JRVE COTLER, PeEittoner. a Hy az ORIGINAL PROCEEDING ORDER ING PETITION 70 RESIGN AND SURRENDERIL: (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of Petitioner Laura Jane Cutler'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. IT IS FURTHER ORDERED that Petitioner Cutler shall return her original license to practice law to the Clerk of this court forthwith. The Clerk shall retain the original license as part of this record. Petitioner Cutler shall comply with the notice, affidavit, and record requirements of sections (aj, (bl, (d), and (g) of RSCH 2.16. IT IS FINALLY ORDERED that the Clerk shall remove the name of Laura Jane Cutler, attorney number 8687, from the roll of attorneys of the State of Hawaii‘l, effective with the filing of this order. DATED: Honolulu, Hawai'i, August 5, 2009. Gr Pees CT 0eiy Le
ad738cb46ec49931d22792eec9a3b2d34d24f523d82b049912a481ce23c9cba8
2009-08-05T00:00:00Z
c5da7c31-d4fc-415f-816c-1bca77ab78c8
Smallwood v. Haseko
null
29650
hawaii
Hawaii Supreme Court
No, 29650 1906002 IN THE SUPREME COURT OF THE STATE OF HAWAI'T CRAIG SMALLWOOD, Petitioner /Plaintiff-Appellant, 80:5 wy ¢. HASEKO (EWA), INC., and CITY AND COUNTY OF HONOLULU, Respondent s/Defendants-Appel lees. APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (crv. NO. 4-1-2315) for the court™) (By: Moon, C. Petitioner/plaintiff-appellant Craig Smallwood's application for writ of certiorari, filed on September 16, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, october 9, 2009. __ KES. For Tue coun: ("> «, SEAL “) Or... Soca wa, Acoba, Duffy, and Recktenwald, considered by: Moon, C.J, Nakay 3s. oss
834836740166cc4f9ab0b0816282664586e5e7dac7fced37fd298ab850267d99
2009-10-09T00:00:00Z
12e99f53-58fb-4571-a366-9c4edcfba140
State v. Winfrey
null
null
hawaii
Hawaii Supreme Court
The Honorable Lenore K.J.H. Lee presided. 1 NO. 28737 IN THE SUPREME COURT OF THE STATE OF HAWAI#I _________________________________________________________________ STATE OF HAWAI#I, Respondent/Plaintiff-Appellee, vs. KENNETH MICHAEL WINFREY, Petitioner/Defendant-Appellant. _________________________________________________________________ CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFFIC NO. 1DTC-07-014931) ORDER AFFIRMING JUDGMENT ON APPEAL (By: Moon, C.J., Nakayama, and Recktenwald, JJ.; and Duffy, J., Dissenting, with whom Acoba, J., joins) Petitioner/defendant-appellant Kenneth Michael Winfrey filed a timely application for a writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA) filed May 18, 2009, entered pursuant to the ICA’s April 29, 2009 Summary Disposition Order, which affirmed the August 3, 2007 judgment of the District Court of the First Circuit (district court). This 1 court accepted certiorari on September 16, 2009, and subsequently held oral argument on November 5, 2009. Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, and also having 2 heard and carefully considered the parties’ respective arguments at oral argument, we conclude that Winfrey did not preserve his objections to the testimony concerning the speed check, and that those objections were therefore waived. We further conclude that the admission of that testimony did not constitute plain error. The decision to notice plain error is discretionary and must be “exercised sparingly and with caution because the plain error rule represents a departure from a presupposition of the adversary system - that a party must look to his or her counsel for protection and bear the cost of counsel’s mistakes.” State v. Fields, 115 Hawai#i 503, 529, 168 P.3d 955, 981 (2007) (citation omitted); State v. Fox, 70 Haw. 46, 56, 760 P.2d 670, 676 (1988) (noting that the decision whether to notice plain error “must turn on the facts of the particular case to correct errors that seriously affect the fairness, integrity, or public reputation of judicial proceedings”) (citation and internal quotation marks omitted). This court has previously declined to notice plain error when a defendant fails to preserve his or her objection to inadmissible evidence. In State v. Wallace, 80 Hawai#i 382, 409- 10, 910 P.2d 695, 722-23 (1996), the defendant argued that the State failed to establish a sufficient foundation to admit a police officer’s testimony about the gross weight of cocaine seized from the defendant’s car because the State did not 3 establish that the scale used to measure the cocaine was accurate. We held that the foundational objection was waived, because although the defendant had objected to the testimony at trial, he did so on the basis of relevancy, not on the basis that the prosecution failed to establish the accuracy of the scale. Id. at 410, 910 P.2d at 723. This court did not find plain error in these circumstances. Id. (citing State v. Naeole, 62 Haw. 563, 570-71, 617 P.2d 820, 826 (1980)). Moreover, Winfrey cannot overcome the effect of his waiver by suggesting that the testimony was insufficient to support a conviction because foundation was lacking. To the contrary, this court stated in Wallace that “[t]he rule is well settled that evidence even though incompetent, if admitted without objection or motion to strike, is to be given the same probative force as that to which it would be entitled if it were competent.” 80 Hawai#i at 410, 910 P.2d at 723 (quoting 2 Wharton’s Criminal Evidence § 265 n.3 (14th ed. 1986) (internal quotation marks omitted)). Accordingly, we observed that “[i]t is the general rule that evidence to which no objection has been made may properly be considered by the trier of fact and its admission will not constitute grounds for reversal.” Id. (citing Naeole, 62 Haw. at 570-71, 617 P.2d at 826); State v. Samuel, 74 Haw. 141, 147, 838 P.2d 1374, 1378 (1992)); see People v. Rigsby, 890 N.E.2d 1146, 1148-51 (Ill. App. Ct. 2008) (defendant was 4 convicted of driving under the influence of alcohol and argued that a police officer’s testimony about defendant’s breath test was inadmissible because the accuracy of the machine used to conduct the test had not been properly established; the court held that any error in the admission of the breath test results was not plain error since “foundational issues go to the admissibility of the evidence, not the sufficiency of the evidence”) (citation omitted). Accordingly, IT IS HEREBY ORDERED that the ICA’s May 18, 2009 judgment on appeal is affirmed. DATED: Honolulu, Hawai#i, December 22, 2009. Brian Vincent (Deputy Prosecuting Attorney) for Respondent/Plaintiff- Appellee James S. Tabe (Deputy Public Defender) for Petitioner/Defendant- Appellant
eecd78556b5c2d9568cf241adb326d00b60ddb4e39629548078456df98cb6e3c
2009-09-16T00:00:00Z
7e6d2498-ea1e-4cef-8c6c-4d368eb56905
State v. Alston
null
null
hawaii
Hawaii Supreme Court
RARY wo. 28410 IN THE SUPREME COURT OF THE STATE OF HAWAT'r STATE OF HAWAT'T, Respondent/Plaintif£-Appellee, WILLIAM D, ALSTON, Petitioner/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 05-21-0936) (By: Recktenwald, J, for the court™ Petitioner/Defendant-Appellant William D. Alston's application for writ of certiorari filed on July 23, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, August 27, 2009. FOR THE couRT: PPh & Pec taed Associate Justice $ s I 2 considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenvalé, JU)
761825b3344cecfd87c7a0381f382f2f90f0c3fdd19a72991d8381c1372b9e46
2009-08-27T00:00:00Z
85fdbee8-01b9-4330-bb70-28423cdcdeed
In re Z.M.
null
29299
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29299 IN THE SUPREME COURT OF THE STATE OF HAWAI'T 2 Z.M., a minor. In the Interest of Oats = CERTIORARI TO THE INTERMEDIATE COURT OF APREALS (FC-S NO, 008-11755) 8 -ERTIORAR] for the court") (By: Moon, C.J Petitioner mother-appellant’s application for writ of filed July 23, 2009, is hereby rejected. certiorari, DATED: Honolulu, Hawai'l, September 1, 2009. FOR THE COUR Herbert ¥. Hanada, for mother-appellant, on the application Li Justice; and and Duffy, J recused. Moon, C-J-, Nakayama, Acoba. + Considered by Judge Hirai, in place of Rectenwald, J.
021d20793902bf32d1195b3647a504d39a800fdc50afe4dedf26154b2bff8798
2009-09-01T00:00:00Z
46ac4eda-6686-484d-9455-9d17e099ee50
In re Application of 754 Castle
null
null
hawaii
Hawaii Supreme Court
No. 29516 IN THE SUPREME COURT OF THE STATE OF HAWAI'L In the Matter of the Application of 754 to register and HAROLD KAINALU LONG CASTLE, confirm title to land situate at xailua, District of Koolaupoko, City and County ef Honolulu, State of, Hawai'i, ESTRELLA C.S. IGARTA, Respondent /Petitioner-Appellee, aang AMON PAL LOCRIGCHZO and BARBARA YARIE LOCRIGOHZO, Sotbend and etter tet itiontt Rospatent kppeliante 6056 HY 6- Logg CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (LAND COURT APPLICATION NO. 754) JON FOR WRIT OF CERTTORART C.J., for the court") ORDER REJI (By: Moon, Petitioners/respondents-appellants Anthony Paul Locricchio’s and Barbara Marie Locricchio’s application for writ of certiorari, filed on September 17, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, October 9, 2009, SE For THE courr: /4*" Oy * Considered by: Moon, C.J., Wakayama, Acoba, and Recktenwald, 93. and circuit Judge Wilson, in place of Duffy, J., recused.
30527366ce9587e6f5195ae8db1966d3e5b43ed3c352f40764662a85163662f2
2009-10-09T00:00:00Z
540a742d-0a08-4f2c-990c-c9a474431868
In re Tax Appeal of Spirent Holding Corp. & Subsidiaries v. State of Hawaii, Department of Taxation
null
29199
hawaii
Hawaii Supreme Court
No. 29199 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T In the Matter of the Tax Appeal of SPIRENT HOLDINGS CORP. 6 SUBSIDIARIES, =| Petitioner/Taxpayer Appellant-Appellee, DIRECTOR OF TAXATION, DEPARTMENT OF TAXATION, STATE OF HAWAT'L, Respondent /Appellee-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (TAX APPEAL CASE NO. 06-0100) DER REIE! carr IT OF RARI (By: Duffy, J., for the court!) Petitioner/Taxpayer Appellant-Appellee Spirent Holdings Corp. & Subsidiaries’ application for writ of certiorari, filed on August 27, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, October 5, 2009. FOR THE couRr: Gonen eRe he Associate Justice Ronald I, Heller for petitioner/taxpayer appellant-appeliee on the application Hugh R. Jones and Damien A. Elefante, Deputy Attorneys General, for respondent /appellee- appellant in opposition ‘Thomas Yamachika for amicus curiae considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, aa. oat
41b8446c202df271d3b0c1a344b2359bbabdd0363f4b5265da2a4218b114467a
2009-10-05T00:00:00Z
dc076d7b-aed3-4c32-893a-0ed7b1a92e93
State v. Fitzwater
null
null
hawaii
Hawaii Supreme Court
LAWUBRARY No, 28584 IN THE SUPREME COURT OF THE STATE OF HANAI‘Z. }™ STATE OF HaAZ'z, 7 = Respondent laiatitt-appellee, he al S vs ZACHARIAH IAN FITZWATER, Petitioner /Defendant-Appel lant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFFIC NO. 1D7C-07-020562) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Recktenwald, J. for the court") Petitioner/Defendant-Appellant Zachariah Ian Fitzwater’s application for writ of certiorari filed on August 3, 2009, is hereby accepted and will be scheduled for oral argument. ‘The parties will be notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawai'i, September 15, 2009. FOR THE COURT: Kee, Paw . ‘a Associate Justice Taryn R. Tomasa, Deputy Public Defender, on the application’ for petitioner /defendant- appellant. + considered by! Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwalé, 33.
0c883e7f16f7735215c30b6f627f6db8639264ef698ef03fe0b0e4cb018107c6
2009-09-15T00:00:00Z
070a10c8-362f-4651-90c1-c606ca28fa82
State v. Metro Club, Inc.
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 24392 IN THE SUPREME COURT OF THE STATE OF HAWAT'T ————— STATE OF HAWAI'L, by its Office of Consumer Protection, Respondent /Plaintiff-Appellee, METRO CLUB, INC., a foreign corporation, and DAVID A. KERSH, individually and as an officer of METRO CLUB, INC., Defendant s-Appellants, and Defendant and METRO CLUB, INC., a Michigan corporation, ‘Third-Party Plaintiff-Appellant; and DAVID A. KERSH, Petitioner/Defendant and Third-Party Plaintiff-Appellant, INTERNATIONAL KITCHENS, a Hawai'i corporation, INC., dba FOGCUTTER RESTAURANT, a Hawai'i corporation, dba KING TSIN, a Hawai'd a Texas wor, RATTORIA, C&W CORPORATION, CHURCH'S PRIED CHICKEN, INC corporation, GANNETT PACIFIC CORPORATION, corporation, ba HONOLULU STAR-BULLETIN, a foreign corporation, BETTER BUSINESS BUREAU OF HAWAI'I, INC., a Hawai'i corporation, Respondents/Third-Party Defendants-Appellees. CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (crv. NO. 00-0-63668) LICATION FOR WRIT ‘AND_DENYING MOTION TO CONSOLIDATE: C.J., for the court!) (By: Moon, Petitioner /defendant and third-party plaintiff- appellant David A. Kersh’s application for writ of certiorari, and Duffy, JJ. and Cireue «Nakayama, Acob recused. 3 considered by: Moon, C.J. sudge Trader, in place of Recktenald, J filed on August 5, 2009, seeks review of the June 17, 2009 and June 30, 2009 orders of the intermediate court of appeals. the June 17, 2009 and June 30, 2009 orders are post-judgment on appeal orders that are not reviewable by application for writ of certiorari. See HRS § 602-59(b) (Supp. 2008). Therefore, petitioner’s application for writ of certiorari, filed on August 5, 2009, is dismissed. Petitioner's motion to consolidate No. 24392 with No. 29494, filed on August 5, 2009, is denied. DATED: Honolulu, Hawai‘i, September 3, 2009. FOR THE COURT: LA Justice
e20cf508c8dab83c7126b7da77d7e032455b16603457c59a1cacdc53bbb23dea
2009-09-03T00:00:00Z
7a0285ef-dd94-41c9-991a-0efd32aa0e08
Keliihananui v. Kam
null
30051
hawaii
Hawaii Supreme Court
No, 30051 IN THE SUPREME COURT OF THE STATE OF HAWAT'T JANICE K. M, CHONG KELI‘IHANANUT, Plaintiff, 8) vs. Se DR, BRUCE. HAM, PSYCHOLOGIST AT THE gait COMME cOnnéctionne. CoNER, Defendant. See 74 4 8 ORIGINAL PROCEEDING ORDER Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) upon consideration of the complaint filed in the supreme court by plaintiff Janice K. M. Chung Keli'ihananui, it appears that we lack jurisdiction to hear and adjudicate plaintiff's claims of criminal malpractice, conspiracy, and cruel and unusual punishment. See HRS § 602-5 (Supp. 2008). ‘Therefore, IT 1S HEREBY ORDERED that the complaint is dismissed. September 24, 2009. GOO os ocane Orom—a Une mandy Mie fe (een toxtef Honolulu, Hawai'i, bate: oats
ecb13ca179b73519792613f01252ae768dcbce9ce2be431add91615577d56b25
2009-09-24T00:00:00Z
677c3484-1380-4c9b-8ed6-551e794f31e7
State v. Rivera
null
29113
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29113 IN THE SUPREME COURT OF THE STATE OF HAWAT'T SADE OF BAEAI'T, Respondent/Plaintite-Ampelieg! vs st 8 : ae 8 | BEUAUN RIVERA, oR., Petisioner/Sefendant-Appeyiage. FF ae 2 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 7 (eR. No. OYe1-0119) for the court’) (sy: Recktenwald, J. Petitioner/Defendant-Appellant Benjamin Rivera, Jr.'s 2009, is application for writ of certiorari filed on August 19, hereby rejected, September 29, 2009 DATED: Monotutu, Hawai'i, ror THe courr: — Ps &. Mecbtmw ef . SEAL * SY Associate Justice s oF ww ‘Taryn R. Tomasa, Deputy Public Defender, on the application for petitioner /defendant- appellant. + considered by: Moon, C.J., Makayana, Acoba, Duffy, and Recktenwalé, J0-
9c85bb8e4227c29bd83596dd101426f3d7dde7ed1b30916bde38fe3013347b34
2009-09-29T00:00:00Z
d3b7bdfb-413d-49bd-902b-b3932bd866bd
State v. Greywolf
null
29293
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29293 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'T, Respondent /Plaintiff-Appellee CHRISTOPHER R GREYMOLF, Petitioner/Defendant Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE No. 17108-4366) (By: Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on July 27, 2009 by Petitioner/Defendant-Appellant Christopher R. Greywolf is hereby rejected. DATED: Honolulu, Hawai'i, August 20, 2009. ror THE couRT: - DB QP 7-* EAL {associate Justice Craig W. Jerome, Deputy Public Defender, on the application for tioner/defendant-appellant. + Considered by: Hoon, C.J., Nakayama, Acobs Circuit Judge Crandall, in place of Recktemmala, J-y 7 dusty, J9., and 4
c7679ad8298f37acecc4de649a0fd526ea6b3f00ebed7193f4495ee2d8d69d80
2009-08-20T00:00:00Z
9cd9a163-ca39-494f-90f2-862c50e0ce4c
Pflueger v. Valenciano
null
30045
hawaii
Hawaii Supreme Court
No. 30045 130 6002 IN THE SUPREME COURT OF THE STATE OF HANAI'I arn JAMES H. PFLUEGER, Petitioner, 8056 wy E | THE HONORABLE RANDAL G.B. VALENCIANO, JUDGE OF THE CIRCUIT COURT OF THE FIFTH CIRCUIT, STATE OF HAWAI'I; and DEPARTMENT OF THE ATTORNEY GENERAL, STATE OF HANAT‘L, Respondents. ORIGINAL PROCEEDING (CR. NO. 08-1-0280) ORDER (By: Moon, C.J., Nakayama and Duffy, JJ.; and Acoba, J.” and Circuit Judge Hifo, in place of Recktenwald, J., recused, Dissenting) Upon consideration of the petition for a writ of mandamus filed by petitioner James H. Pflueger and the papers in Support, it appears that the denial of the disqualification of the Attorney General as prosecutor in Cr. No. 08-1-0280 is reviewable on a appeal from a judgment of conviction, should such a judgment be entered in Cr. No, 081-0280, and petitioner fails to demonstrate that immediate review of the disqualification matter is necessary to prevent harm that cannot be remedied on appeal. Therefore, petitioner is not entitled to mandamus relief. See Kema 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.); Wong v. Fong, 60 Haw. 601, 604, 593 P.2d 386, 389 (1979) (a writ of mandamus will issue from the denial of disqualification of counsel where irreparable and imnediate ham would otherwise result); Chuck v. St, Paul Fire and Marine Insurance Co., 61 Haw. $52, 560, 606 P.2d 1320, 1325-26 (1980) (a weit of mandamus will issue from the disqualification of counsel there the petitioner will be irreparably harmed by the delay associated with the ordinary appellate process). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai't, october 30, 2009. Fon Beste be hee 1 Cron. Polis y+
4cb127c7f8cd807a97059255c56d88a87d7387ddf133e86d4dbc613bc0c15279
2009-10-30T00:00:00Z
6616b715-1700-4055-85bc-1098e063c8af
Office of Disciplinary Counsel v. Narimatsu
null
null
hawaii
Hawaii Supreme Court
No, 30038 IN THE SUPREME COURT OF THE STATE OF HAWAI'I OFFICE OF DISCIPLINARY COUNSEL, Petitionest 3 8 CURTIS 7. NARIMATSU, Respondent. = ORIGINAL PROCEEDING (ope 07-157-8617, 07-158-8618, 07-159-8619, 08-061-8704, 08069-8712, 08-072-8715, 09-05-8728, 09-06-8729, 09-007-8730, 09-010-8733, 039-046-8769, 09-051-8774, 09-052-8775, 09-053-8776, 039-054-8777, 09-055-8778, 09-056-8779, 09-057-8780, 09-058-8781, 09-05-8782, 09-060-8783, 09-061-8784, 09-062-8785, 039-070-8793, (093-071-8794, 09-076-8799) ORDER OF INTERIM SUSPENSION (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenvald, JJ.) Upon consideration of the Office of Disciplinary Counsel’s petition for the interim suspension of Respondent Curtis 7. Narimatsu from the practice of law pursuant to Rule 2.23 of the Rules of the Supreme Court of the State of Hawai'l (RSCH), the memoranda, affidavits, and exhibits in support, and the record, it appears the Office of Disciplinary Counsel has presented sufficient evidence that Respondent Narimatsu may have violated the Hawai'i Rules of Professional Conduct and poses a substantial threat of serious harm to the public. Therefore, IT IS HEREBY ORDERED that, pursuant to RSCH 2.23(b), Respondent Curtis T. Narimatsu’s license to practice law in the State of Hawai'i is suspended, effective upon entry of this order. IT IS FURTHER ORDERED, notwithstanding RSCH 2.23(4), that Respondent Narimatsu shall promptly notify, by registered or certified mail, return receipt requested, each of his clients involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter oad or proceeding, of his suspension and c inability to act as an attorney after the effective date of his suspension. The notice shall advise § desirability of the prompt substitution of another attorney or jespondent Narimatsu’s clients of the attorneye in his place. Respondent Narimatsu shall comply with all other requirements of RSCH 2.16. IT IS FINALLY ORDERED that the Clerk shall forthwith dist. bute to all judges copies of this order DATED: Honolulu, Hawai'i, September 22, 2009. ae Rice CON eboey Ore. Lames, Cnet Mw E Neaiermof
649633e5329d9dc4637212ca63950cb78d31577624b12bde32725347c8b82928
2009-09-22T00:00:00Z
e2033478-fc97-40fc-bdcc-26de289ac67f
In re Honolulu Community-Media Council, Society of Professional Journalists, Hawaii Chapter
121 Haw. 179
30046
hawaii
Hawaii Supreme Court
*** FOR PUBLICATION *** in West's Hawaii Reports and the Pacific Reporter IN THE SUPREME COURT OF THE STATE OF HAWAI'I .000- In the Matter of the HONOLULU COMMUNITY-MEDIA COUNCIL, SOCIETY OF PROFESSIONAL JOURNALISTS, HAWAI‘T CHAPTER, Petitioner. no. 30046 qg 8 y 2 ORIGINAL PROCEEDING te - (Motion for Waiver of Copying Fees) - ~ z SEPTEMBER 11, 2009 - MOON, C.J., NAKAYAMA, ACOBA, DUFFY, AND RECKTENWALD, JU: Per Curian. By means of an August 28, 2009 letter to the Chief Justice, the Honolulu Community-Media Council and the Society of Professional Journalists (Hetitioners) seek waiver of fees for copying judicial financial disclosure statements. we accept the letter as a ‘motion for waiver of copying fees’ in an original proceeding and deny the motion. ‘he Petitioners made similar requests in February and March 2003. The requests were denied by order of this court on March 13, 2009. ‘The March 13, 2009 order concluded that Petitioners had failed to state good cause for waiver of the copying fees. In support of the current request for waiver of copying fees, Petitioners assert they have obtained an opinion *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter from the Office of Information Practices (OIP) that concludes judicial financial disclosure documents are subject to the uniform Information Practices Act (UIPA), chapter 92F of the Hawai'i Revised Statutes. Petitioners argue it is in the public interest, as defined by Hawai‘i administrative Rules (HAR) § 2-71-32(b) to waive the copying costs. As cussed below, we conclude that the OrP’s guly 8, 2009 menorandun opinion is wrong. ‘The records of Judicial Financial Disclosure statements are not mere "administrative records concerning the management of personnel subject to disclosure under the UIPA.* The oIP concludes that Judicial Financial Disclosure statements are records related to the supreme court's executive or administrative functions. However, Judicial Financial Disclosure Statenents are judicial records, created and governed by Rule 15 of the Rules of the Supreme Court of the State of Hawai'i (RSCH), promulgated by this court pursuant to its inherent and constitutional judicial authority to regulate judges. The records created by RSCH Rule 15 form an evidentiary basis for motions to disqualify judges and justices and may also provide evidence that can be used to discipline judges and justices. The authority to promulgate rules and keep records with regard to judicial qualification and discipline matters (1) fall within the scope of the court's power to adjudicate, and (2) is inherently intertwined with such adjudicative power. Therefore, the rules and records are not subject to HRS chapter 92F nor OIP review. cf. Ince Kading, 235 N.W.2d 409, 412 (Wis. 1975) (adoption of *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter judicial code and financial disclosure rule were actions performed by the supreme court under its inherent power to function as the supreme and superintending court) We have previously noted that the separation of powers doctrine ‘is intended to preclude a commingling of essentially different powers of government in the same hands and thereby prevent a situation where one department would be controlled by, or subjected, directly or indirectly to the coercive influence of either of the other departments." See, g.g., Pray v. Judicial Selection Comm'n, 75 Haw. 333, 353, 861 P.2d 723, 732 (1993) (internal quotation marks and citations omitted); cf. Bester v. Louisiana Supreme Court Committee on Bar Admissions, 779 So. 24 715, 721 (La. 2001) (*the inherent powers doctrine exists as a protective mechanism to ensure our independence as the head of a separate branch of state government"; declining to apply public records law to bar admission records) . In our tripartite system of government, judicial functions, such as promulgating rules and keeping records with regard to judicial qualification and discipline matters, are not subject to interference by an executive administrative agency. Qudicial Financial Disclosure statements are subject to disclosure under RSCH Rule 15(g), not the UIPA. Thus, HAR § 2-71-32(b) is not applicable. Accordingly, with regard to records created through the exercise of our inherent and constitutional judicial authority to regulate judges, we cannot *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter permit the OIP to “control . . . or subject [thie court], directly or indirectlyl,] to [its] coercive influence." Bray, 75 Haw, at 353, 961 P.2d at 732 (internal quotation marks and citations omitted) ‘The supreme court is currently seeking comments regarding revisions to RSCH Rule 15 and the financial disclosure statement form, anticipated to be adopted effective January 1, 2010, The recent and anticipated amendments to the form are designed to make necessary disclosures while protecting the safety and security of judges and their families. Judges will be required to make their financial disclosures on the revised form, ‘The disclosures are due on or before April 30, 2010, These disclosure statements will be posted on the judiciary’s website thereafter. With regard to Petitioner’s motion, this court may waive copying fees upon a showing of good cause under Rule 45(e) of the Hawai'i Rules of Appellate Procedure. In determining whether good cause exists, this court requires applicants to make a credible showing of indigency. Petitioners have failed to establish indigency, and accordingly, the motion for waiver of the copying fees is denied.
30ec72936db0d7432af3eacfedef043e5f2e81433e69f2c1259e59491b95cbe6
2009-09-11T00:00:00Z
629cc21e-33db-4c84-ae4f-d29ce2979ef5
Liberty Mutual Insurance Company v. Sentinel Insurance Company, Ltd.
null
null
hawaii
Hawaii Supreme Court
No. 27429 IN THE SUPREME COURT OF THE STATE OF HAWAI'I LIBERTY MUTUAL INSURANCE COMPANY, Petitioner/Plaintiff-Appellant /Cross-Appellee, SENTINEL INSURANCE COMPANY, LTD. and HARTFORD INSURANCE GROUP, Respondent s/Defendants-Appellees/Cross-Appellees, and ZASHELL LABRADOR and PEMCO MUTUAL INSURANCE COMPANY; = Respondenta/Defendants-Counterclaimants/ Appellees/Cross-Appel lants, and ELISA TOLFREE, et al., Defendants 23 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIVIL No. 01-1-0508) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court’) Petitioner/Plaintift-Appellant /Cross~Appel lee! s 80K hd Sz any, aaa application for writ of certiorari filed on July 14, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, August 25, 2009. FOR THE COURT: ¥ Peete OT weep tre | Associate Justice ‘Thomas Tsuchiyama for Petitioner/Plaintiff-Appellant/ Cross-Appellee on the application v4 byt Moon, CuJ+y Nakayama, Acoba, and Duffy, JJ., and sakanoto, in place of Recktenwald, J., recused. ‘onside: carcust Judge
a48eb4df4664b69eccff533ce0c4c91b6b9e9e0c2c438831910ff5585ff7ba89
2009-08-25T00:00:00Z
49bceee1-4124-4274-a10d-9f36a5037cec
Brown v. Hawaii Medical Service Association
null
null
hawaii
Hawaii Supreme Court
no. 29627 IN THE SUPREME COURT OF THE STATE OP HAWAI'I CAROL A. BROWN, M.D., and CAROL A. BROW, 'M.D., "INC. Petitioners/Plaintifis-Appellants, HAWAII MEDICAL SERVICE ASSOCIATION, ‘a mitual benefit society; and ALAN VAN ETTEN, Arbitrator, Respondent s/Defendants-Appel lees. ele Ww S2 sav 6aug oats CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. NO. 08-1-0288) for the court") (By! Moon, C-J-, Petitioners/plaintiffs-appellants Carol A. Brown, M.D., and Carol A. Brown, M.D., Ine.’s application for writ of certiorari, filed on July 14, 2009, is hereby rejected. Hawai'i, August 25, 2009. DATED: Honolulu, FOR THE COURT: Lo gustice * considered by: Moon, C.J., Nakayane and Duéfy, JJ. and Circuit Judge Alm, in place of Acoba, J-, recused, and Circuit Judge Chang, in place of Reckvenwala, J-, recused
5ca5fbb854b3ff3fc2bd6070c1b8211808cd616e04d4fbce32af63b243242ec9
2009-08-25T00:00:00Z
6159794b-39d6-4192-85e0-6e7a5bf8fe7a
State v. Vinhaca
null
28571
hawaii
Hawaii Supreme Court
No. 28571 IN THE SUPREME COURT OF THE STATE OF HANAI'T 29 STATE OF HAWAT'T, Respondent /Plaintiff-appellee o3ns ARTHUR VINHACA, Petitioner/Defendant-Appel lant 02:2 Ne 06 easeamg CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (EC-CR NO, 06-1-0088) (By: Acoba, J., for the court") ‘The application for writ of certiorari filed on August 19, 2009 by Petitioner/Defendant-Appellant Arthur Vinhaca is accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. Honolulu, Hawai'i, September 30, 2009. FOR THE COURT: DATE! Linda C.R. Jameson, on the application for petitioner /defendant- appellant. 5 Considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, 33
b34527a8bc9d952605206947d5546d3e7193a54000a791bac3e99704bfd4f44a
2009-09-30T00:00:00Z
0560f96a-09bc-4fde-b8ba-381f48c06e74
State v. Gonsalves
null
null
hawaii
Hawaii Supreme Court
OF HAWAI'I, Plaintiff-Appellant, CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 04-1-0455) ORDER REJECTH LICATION FOR WRIT (By: Moon, C.J., for the court") Petitioner/defendant-appellee Ivan Gonsalves's filed July 6, 2009, is hereby application for writ of certiorari, rejected. DATED: Honolulu, Hawai'i, august 10, 2009. FOR THE COURT: Ce cews Considered by: Moon, Cut., Nakayama, Acoba, and Dut fala, J. Cireult Judge Nishimura, in place of Red Gav
4faf637eca2af2682311438f7b1d5536a4561a1f77407ecd53e33802a291ad3a
2009-08-10T00:00:00Z
1b0cf6ae-f52b-4471-a98b-dd5edfa17291
State v. Wheeler
null
null
hawaii
Hawaii Supreme Court
wo, 29149 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAT'T, 2 ¥ Petitioner/Plaintiff-appellee, vs. oats CARSON LALEPA WHEELER, Respondent /Def endant -Appel CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFFIC NO. 1DTA-07-07206) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Recktenwald, J. for the court’) Petitioner/Plaintiff-Appellee State of Hawaii's application for writ of certiorari filed on July 13, 2009, is hereby accepted. DATED: Honolulu, Hawaii, August 13, 2009 vor me coon « Mw ©. fee tounnt ) SEAL Associate Justice SB y oe ws” Donn Fudo, on the application for petitioner /plaintifé- appellee. + considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, J
1ba9f3c84282ad3dbf2ba680ca80a5dd27183fdb6048d1784ea069e1186b92d7
2009-08-13T00:00:00Z
fc00c031-7c78-4d26-9a44-879b720e606d
Rapozo v. State
null
29949
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29949 IN THE SUPREME COURT OF THE STATE OF HAWAI'I RICHARD B. RAPOZO, Petitioner, STATE OF HAWAI'T, Respondent. ‘ORIGINAL PROCEEDING ORDER <i (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of habeas corpus filed by petitioner Richard 8. Rapozo and the papers in support, it appears that the circuit court's treatment of petitioner's June 19, 2009 petition for writ of habeas corpus as a petition for post-conviction relief under HRPP Rule 40 allows petitioner to seek the sane habeas corpus relief afforded under HRS chapter 660. See HRPP Rule 40(a) ("The post-conviction proceeding established by this rule shall encompass all common law and statutory procedures for the same purpose, including habeas corpus(.]"). Therefore, IT IS HEREBY ORDERED that the clerk of the appellate court shall process 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. DATED: Honolulu, Hawai'i, August 7, 2009. Goren Pel reenjane Yrne Botts Mot & Mele todd oats
281c6d94f42d14afd48dfd6be4b77b993d659da58044ae8d65b7e8bc2cd73d3d
2009-08-07T00:00:00Z
f9498df5-2721-47a2-9929-9749407a40b0
Lighter v. Hara
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29943 IN THE SUPREME COURT OF THE STATE OF HAWAI'T ERIC AARON LIGHTER, Petitioner, THE HONORABLE GLENN S. HARA, JUOGE OF THE CIRCUIT COURT OF THE THIRD CIRCUIT, STATE OF HAWAI'I; RONALD ALAN OBER; LESLIE W. BROWN; ‘and JAMES RIETVELD, Respondent Jedd. G1 ORY €1 on ORIGINAL PROCEEDING (CIVIL NO. 03-1-0103) (By: Moon, ¢.J., Nakayanay Atcba, and Duffy, J3f)and ‘Intermediate Court of Appeals Judge Watanabe in place of Aecktenvald, J. recused) Upon consideration of the petition for a weit of mandamus filed by petitioner Eric Aaron Lighter (petitioner) on July 20, 2009 and the papers in support, it appears that petitioner is seeking a ruling from this court that petitioner’ s January 11, 2006 motion te compel discovery be ruled upon and granted, The record indicates that the motion was granted on January 30, 2006 by the Circuit Court of the Third Circuit, the Honorable Gregg Nakamura (Judge Nakamura) presiding, but the granting of the motion was set aside on May 25, 2006. Petitioner grant” the motion on July 22, 2006, asked Judge Nakamura to but the request was by an unfiled letter, not by motion made pursuant to Hawai'l Rules of Civil Procedure Rule 7(b) (1). Judge Nakamura was not obliged to act on the July 22, 2006 letter request that was not filed in Civil No, 03-1-0103. Petitioner did not properly request a ruling on the motion to compel discovery until the filing of petitioner’s June 23, 2009 request directed to the respondent judge, who replaced Judge Nakamura as aa presiding judge in 2009. Defendant Ronald Ober responded to the June 23, 09 request on June 30, 2009 and petitioner replied to the response on July 6, 2009. Two weeks later, on July 20, 00, petitioner filed the instant petition for a writ of mandamus directing the respondent judge to rule on the June 23, 2009 request. The passage of two weeks after the filing of the July 6, 2009 reply is not an unreasonable period of time for ruling on ne June 23, 2009 request and does not demonstrate that the respondent judge is refusing to rule on the June 23, 2009 request. Therefore, petitioner is not entitled to mandamus relief. See Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.24 334, 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.). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, August 13, 2009. Gor~ Pecuae O Noe ed Poe Gm 6 gs Counrie K@ Wetanalee/
0b9c441ead216b8f77451d70a87e7ecc7fcef0186fdd9a8d61d1c3c561532bbb
2009-08-13T00:00:00Z
b8389c07-e608-493b-bb9b-de251f98fab8
State v. Corder
null
null
hawaii
Hawaii Supreme Court
NO. 28877 IN THE SUPREME COURT OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Petitioner/Plaintiff-Appellee, vs. LAWRENCE CORDER, Respondent/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-CR NOS. 07-1-1080, 06-1-2012, 07-1-1048) ORDER DENYING MOTION FOR RECONSIDERATION (By: Nakayama, Duffy, and Recktenwald, JJ.; and Acoba, J., dissenting, with whom Moon, C.J., joins) Upon consideration of the motion for reconsideration filed on December 16, 2009 by Respondent/Defendant-Appellant Lawrence Corder, requesting that this court review its opinion filed on November 19, 2009, IT IS HEREBY ORDERED that the motion for reconsideration is denied. DATED: Honolulu, Hawai#i, December 23, 2009. Walter R. Schoettle for respondent/defendant- appellant on the motion DISSENT BY ACOBA, J., IN WHICH MOON, C.J., JOINS I dissent and would grant the motion for reconsideration.
fcd38c61fb7a340cfedc4d42f312e43ba684e8c8405f3f1752198b80fa6f47d6
2009-09-30T00:00:00Z
6256ef44-ad6f-4f22-93b4-f026ed46d851
State v. Estabillio
null
null
hawaii
Hawaii Supreme Court
STATE OF HAWAI'I, Respondent /Plain JON CURTIS ESTABILLIO, Petitioner/Defendant-Appellant CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (CR. NO. 06-1-0072) ER ACCS CATION, 1E CERI z (By: Woon, C.J., for the court’) Petitioner /defendant-appellant Jon Curtis Estabillio’s application for writ of certiorari, filed June 23, 2009, accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawai'i, guly 31, 2009. FOR THE COUR’ LOE SEAL” Ceo Jui and Chreute aa
a48ed228e2cf41972f25443660fd9d47f76d3976e249badca1b68844c8970372
2009-07-31T00:00:00Z
8eea7085-6c46-4d70-a5e1-44f8746d6515
State v. Ramos
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 28356 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Respondent/Plaintiff-Appellee, REGINALD RANALDO RAMOS, JR., Petitioner/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 05-1-0627) a Ni 01 Er for the court’) (By: Nakayama, Jy ams a S Petitioner /Defendant-Appellant’s amended appl statict for weit of certiorari filed on June 25, 2009, ts herélly rejected. Honolulu, Hawai'i, July 31, 2009. FOR THE COURT: Puamtte G. Meebee qr. Associate Justice DATE! Peter Van Name Esser and Myles 8, Breiner for Petitioner/Defendant -Appeilant on the application + Moon, C.J.» Nakayama, Acoba, and Duffy, 32.) and srkins, in place of Recktenald, J., recused. ‘consid cérouis Jvage
10673d24039e0d47812a66cee3662029c740bc76aa117c463c697df0b0d643dd
2009-07-31T00:00:00Z
f8e259cb-1522-44cc-854f-69f9c646ff29
Rivera v. State
null
null
hawaii
Hawaii Supreme Court
No. 29013 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STYRAN EDDIE RIVERA, Petitioner/Petitioner-Appellant, oan STATE OF HAWAT'T, Respondent /Respondent -Appell len-9 Wy ez uas.qal CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S.P.P. NO. 02-1-0037; CR. NO. 00-1-0029) MING APPLICAT: (By: Recktenwaid, J Petitioner/Petitioner-Appellant Styran Eddie Rivera's RDER y for the court application for writ of certiorari filed on August 13, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, September 23, 2009 aE PER FOR THE CoURT: Pion & Ahesonet ln) * associate Justice \S, oe ws oF ws Mary Ann Barnard, on the application for petitioner/petitioner- appellant. + Considered by: Moon, C.J,, Nakayama, Duffy, and Recktenwald, J9., { Fecusea) and Cireuit Juage Border, in place of’ Acoba, J
a46ebe9355ee26447e2f8e0d557f2df4344e1107ee0e3e477d4ba186d42e9729
2009-09-23T00:00:00Z
9582b7c4-a328-4f48-b883-4934d5cf9ce7
In re Groth
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29975 IN THE SUPREME COURT OF THE STATE OF HAWAT'T) IN RE GAYNELLE GROTH ORIGINAL PROCEEDING LON 70 BR LICE (sy: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of Petitioner Gaynelle Groth’ 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. IT IS FURTHER ORDERED that Petitioner Groth shall return her original license to practice law to the Clerk of this court forthwith. The Clerk shall retain the original license as part of this record, Petitioner Groth shall comply with the notice, affidavit, and record requirements of sections (a), (b), (d), and (g) of RSCH 2.16. IT IS FINALLY ORDERED that the Clerk shall remove the name of Gaynelle Groth, attorney number 3106, from the roll of attorneys of the State of Hawai'i, effective with the filing of this order. DATED: Honolulu, Hawai'i, August 25, 2009. es Oath Pe © Macks bk f
35917b2fcead19441e45347a989d152de6705fb81c4e2638248dbdd416096bac
2009-08-25T00:00:00Z
ec72a515-aef5-4a4d-a69f-5b865b658c04
Karagianes v. State
null
null
hawaii
Hawaii Supreme Court
No. 29572 IN THE SUPREME COURT OF THE STATE OF HAWAT'T GARY KARAGIANES, Petitioner/Petitioner-Appel lant, STATE OF HAWAII, Respondent /Respondent-Appel lee CERTIORARI TO THE INTERMEDIATS COURT OF APPEALS (8.P.P. NO, 08-1-0008; CR. NO. 92-0340) TION FOR, (By: Moon, C.J., for the court) Petitioner /petitioner-appellant Gary Karagianes’ application for a writ of certiorari, filed on July 6, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, August 6, 2009, FOR THE COURT: Ge Justice Considered by: Moon, C.J., Makayana, Acoba, and Duffy, oJ., and Circuit Judge Wong, in place Of Recktenvald, J-, recused,
8789b698ff380e6fbf1a3260dc51b414b274dd7a0b1149396f88f916ffd0fd4e
2009-08-06T00:00:00Z
20126c2d-d7d6-4ffb-8076-b85bc583bf4d
State v. Nakama
null
28372
hawaii
Hawaii Supreme Court
no. 28372 IN THE SUPREME COURT OF THE STATS OF HAMAT'T STATE OF HAWAI'I, Respondent /Plaintiff-Appellee Oss MAURICE NAKAMA, 3 Petitioner/Defendant-Appellant and Mz Hd Te sn DANIEL JACOB MIYAMOTO, Defendant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 051-2325) (By: Acoba, J., for the court) ‘The Application for Writ of Certiorari filed on July 21, 2009 by Petitioner/Defendant-Appellant Maurice Nakana is hereby rejected. + August 31, 2009. DATED: Honolulu, Hawai’ FOR THE COURT: ‘Resociate Justice Karen T. Nakasone, Deputy Public Defender, on the application for petitioner/defendant-appellant. and Duffy, 39., and + considered by: Moon, C.J., Nakayama, Acobs Circuit Judge Ain, in place of Récktenuald, J.y recused.
377fdf0fb9a1135f682e8b1a81e1842d4dfd73299f217a3d687f4728e5635267
2009-08-31T00:00:00Z
c62efc9a-8cd4-4b9f-801b-837f97716b5b
State v. Jacobson
null
28863
hawaii
Hawaii Supreme Court
No, 28863 IN THE SUPREME COURT OF THE STATE OF HANAI‘I STATE OF HAWAI'I, Respondent /Plaintif£-Appellee, BILL A. JACOBSON, Petitioner/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO. 2P107-01803) ORDER PPLICATION OF centr (By: Duffy, J., for the court and Acoba, J., dissenting separately) Petitioner/Defendant-Appellant Bill A. Jacobson’ s application for writ of certiorari, filed on August 7, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, September 18, 2009. FOR THE couRT: Yom «Dubey Ae Associate Justice David J. Peterson for petitioner/ defendant-appellant on the application as hung UAT Yr 0d) He su ‘considered by: Moon, C.J., Wakayama, Acsba, and Duffy, 2J., and Circuit Judge Alm in place of Recktenwald, 2., recused. aams
2509db41eec62907e273c085ddd61e4941fbae1e06c12ae03a62ec8d40466636
2009-09-18T00:00:00Z
a2755296-3059-4797-a16c-ce6a3e5473c0
Blaisdell v. Department of Public Safety
null
null
hawaii
Hawaii Supreme Court
NO. 30170 IN THE SUPREME COURT OF THE STATE OF HAWAI#I RICHARD BLAISDELL, Petitioner, vs. DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAI#I, Respondent. ORIGINAL PROCEEDING (SPP NO. 08-1-0041) ORDER (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner Richard Blaisdell and the papers in support, it appears that petitioner fails to demonstrate a clear and indisputable right to relief. Therefore, petitioner is not entitled to mandamus relief. See HRS § 602-5(3) (Supp. 2008) (The supreme court has jurisdiction and power to issue writs of mandamus directed to public officers to compel them to fulfill the duties of their offices.); In Re Disciplinary Bd. Of 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 is ministerial and so plainly prescribed as to be free from doubt, and no other remedy is available.). It further appears that issuance of a declaratory judgment is not within the original jurisdiction of the supreme 2 court. See HRS §§ 602-5 (Supp. 2008) and 632-1 (1993). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai#i, December 14, 2009.
14be39d1de77c5a5cf3f6ce0c0a3548f61419642624ae3e772ab2aa776ef145f
2009-08-03T00:00:00Z
3bc99577-6b47-4082-9bf5-376e3ec64b4c
Stanley v. State
null
28811
hawaii
Hawaii Supreme Court
No. 28811 {S ANTHONY STANLEY, Petitioner Responde! STATE OF HAWATT CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (cR. NO. 04-1-0049) JECTING APPL ‘ 4 for the court") (By: Moon, C.J. Petitioner-appellant Charles Anthony Stanley's filed June 8, 2009, Honolulu, Hawai‘i, July 20, 2009. DATED: FOR THE COURT: is hereby Considered by: Moon, C.J., Nakayama, Acoba, and Dut in place of Recktenwaid, ., recused. a3
b71e7fca3dfe7e66c568fb9c4078a7fe405420bec507a57d4b18845f9cabf25c
2009-07-20T00:00:00Z
2b405290-ea0b-41ed-8f73-0b4dee8c129f
Koga Engineering & Construction, Inc. v. State of Hawaii
null
28278
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 28278 IN THE SUPREME COURT OF THE STATE OF HANAT KOGA ENGINEERING & CONSTRUCTION, INC., & Respondent & Petitioner/Plaintiff-Appellee > O34 STATE OF HAWAI‘L, Petitioner & Respondent /Defendant-Appel Lant.’/« 96 wi 21 say gaep CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CTV. NO, 01-1-3636-12(VSM) ) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI ‘AND REQUESTING FURTHER BRIEFING (By! Acoba, J., for the court’) The July 8, 2008 applications for writ of certiorari filed by Petitioner & Respondent/Defendant-Appellant State of Hawai'i (the State) and Respondent @ Petitioner/Plaintift- Appellee Koga Engineering & Construction, Inc. (Koga) are accepted and will be scheduled for oral argument. will be notified by the appellate clerk regarding scheduling. IT IS FURTHER ORDERED that Koga shall file a supplemental brief addressing the issue of whether the procedure set forth in Hawai'i Revised Statutes § 1030-703 is mandatory, and thus determinative of jurisdiction in the circuit court of Supplemental briefing on this ‘The parties the first circuit (the court). issue is necessary because it has been raised for the first time The issue by the State in its response to Koga’s Application. was not raised by either party before the court or the 1» Reba, and Duffy, JJ., and 1 Considered by: Moon, C.J. Naka Circuit Judge Kin, in place of Recktenwsld, J-, recused. Intermediate Court of Appeals (ICA), nor was raised by the ICR. The supplemental brief shall not exceed 10 pages in length hall be filed by August 27, 2009, DATED: Honolulu, Hawai"i, August 12, 2009. and FOR THE COURT: oN Associate Justice Dorothy Sellers, Solicitor General, and Rebecca A. Copeland, Deputy Solicitor General (on the Application) and Michael Q.Y. Lau, Deputy Attorney General (on the Response) for Petitioner & Respondent /Defendant-Appellant State of Hawai'i. Bert T. Kobayashi dr. Christopher 7. Kobayashi and Maria Y. Wang for Respondent & Petitioner/ Plaintiff-appellee Koga Engineering & Construction, Inc.
e13a9108ebb663eb25cc853f583254bbc552be9cbe183eae8b8ce60dbf196904
2009-08-12T00:00:00Z
3e396317-7f9f-441a-ba7b-b5321c2f2e7a
Tierney v. District Court of the First Circuit, State of Hawaii, Honolulu Division.
null
29903
hawaii
Hawaii Supreme Court
Ar ia No. 29903 IN THE SUPREME COURT OF THE STATE OF HANAI'T o HAEL C, TIERNEY, Petitioner, DISTRICT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, HONOLULU DIVISION, Respéndent ORIGINAL PROCEEDING (CASE NO.” 12108-06561) ORDER GRANTING PETITION FOR WRIT OF MANDAMUS (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of petitioner Michael C. Tierney’s petition for a writ of mandamus, it appears that the district court of the first circuit received from petitioner, on November 24, 2008, a letter and other papers. The letter, inter alia, instructed the district court to “Please file my Notice of Appeal.” The letter’s other papers were entitled “Notice of Appeal”, “Affidavit in Support of Motion for Leave to Proceed on Appeal in Forma Pauperis”, and “Motion for Appointment of Counsel on Appeal” (collectively “appeal papers”). The appeal papers were all captioned with district court Case No. 1P108-06562 and were all signed by petitioner and dated November 19, 2008. The district court filed petitioner’s letter on November 24, 2008 and entered the letter on the docket of 1P108-06561. The district court placed the appeal papers in the file of 1P108-06561 as part of petitioner's letter filed on November 24, 2008. The district court did not file and process petitioner’s appeal papers. A writ of mandamus will issue where a petitioner demonstrates a clear and indisputable right to relief and lack anys of other means to redress adequately the alleged wrong or obtain the requested action. Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999), Mandamus relief is available to compel official to perform a duty allegedly owed to an individual 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. In Re Disciplinary Bd. of Hawaii Supreme Court, 91 Hawai'i 363, 368, 984 P.2d 688, 693 (1999), citing Barnett v, Broderick, 84 Hawai'i 109, 111, 929 P.2d 1359, 1361 (1996). The filing and processing of petitioner's appeal papers are ministerial duties of the district court. Petitioner has an indisputable right to have his appeal papers filed and processed. ‘The district court ignored petitioner’s request to file his appeal papers. Petitioner has no remedy other than mandamus. 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 £ IT 18 FURTHER ORDERED that the petition for writ of mandamus is granted as follows: 1, The District Court of the First Circuit, Honolulu Division, shall forthwith: (1) file and process, in Case No. 1P108-06561, the papers entitled “Notice of Appeal”, “Affidavit in Support of Motion for Leave to Appeal in Forma Pauperis”, and “Motion for Appointment of Counsel on Appeal” that are part of the letter filed on Novenber 24, 2008 in Case No. 1P108-06561; 2 ii) serve petitioner with file-stamped copies of the papers: and ce of Appeal in accordance with HRAP 11 (b) (414) process the No! 2. The Notice of Appeal filed by the district court pursuant to paragraph 1 shall be deemed to have been filed Novenber 24, 2008 for purposes of HRAP 4(a) (1). 3. The district court shall file a copy of this order in Case No. 1P108-06561 DATED: Honolulu, Hawai'i, July 8, 2009. Ire eset ee CP Uereee | Mee aoe Guene, Duly + SN &. Pectytn ht
af30c30cf5ba2e0d57a4f28b649f6c64f870d9e1465cd36939b53cdda87e28a5
2009-07-08T00:00:00Z
6bf34532-13bc-4694-b845-f370c1cc6505
In re N.C.
null
null
hawaii
Hawaii Supreme Court
Considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, 1 JJ. NO. 28294 IN THE SUPREME COURT OF THE STATE OF HAWAI#I IN THE INTEREST OF N.C., a Minor CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-J NO. 0063855) ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI WITHOUT PREJUDICE (By: Duffy, J., for the court1) On November 5, 2009, Petitioners/Parents-Appellants (Parents) filed an application for writ of certiorari, pursuant to Hawai#i Rules of Appellate Procedure Rule 40.1, seeking further review of the Intermediate Court of Appeals’ June 26, 2009 summary disposition order in In re NC, No. 28294, and October 28, 2009 judgment on appeal. This court has previously stated that “[b]ecause standing is a jurisdictional issue that may be addressed at any stage of a case, an appellate court has jurisdiction to resolve questions regarding standing, even if that determination ultimately precludes jurisdiction over the merits.” Keahole Defense Coal., Inc. v. Bd. of Land & Natural Res., 110 Hawai#i 419, 427-28, 134 P.3d 585, 593-94 (2006). Additionally, “[i]n the absence of well recognized exceptions, this court has clearly held that ‘[c]onstitutional rights may not be vicariously asserted.’” Freitas v. Admin. Dir. of Courts, 104 Hawai#i 483, 486, 92 P.3d 993, 996 (2004) (footnote omitted) (quoting Kaneohe Bay Cruises, Inc. v. Hirata, 75 Haw. 250, 256, 861 P.2d 1, 9 (1993)). “Exceptions to the rule against vicarious assertion of constitutional rights include the right to privacy and First Amendment rights.” Tauese v. State, 2 Dep’t of Labor & Indus. Relations, 113 Hawai#i 1, 28, 147 P.3d 785, 812 (2006) (citing Freitas, 104 Hawai#i at 486 n.6, 92 P.3d at 996 n.6); see also State v. Kam, 69 Haw. 483, 488, 748 P.2d 372, 375 (1988). Parents do not argue that they fall within any exception recognized by this court to the rule against vicarious assertion of constitutional rights. Further, Parents do not indicate why NC cannot assert his own constitutional rights, as he did when he was represented by counsel before the Family Court and the ICA. Indeed, NC has until January 26, 2010 to file an application for writ of certiorari. As Parents have not demonstrated that they have standing to vicariously assert the constitutional rights of NC in the questions presented to this court, IT IS HEREBY ORDERED that Parents’ application is dismissed without prejudice. DATED: Honolulu, Hawai#i, December 9, 2009. FOR THE COURT: Associate Justice Christopher J. Roehrig for petitioners/parents- appellants on the application
f93f8052cb0af55309c1bc6e9f145a8ce58e80e2464b8d849065702d1d0a2420
2009-08-04T00:00:00Z
affb68d7-13a7-48d1-8833-93b36b358752
Suzuki v. Healthways, Inc.
null
29714
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29714 IN THE SUPREME COURT OF THE STATE OF HAWAI'I LOLA SUZUKI, Petitioner /Claimant Apps road lant, BALTHWAYS, INC. Respondent /Employer-Appellee, and SEG HV 12 1 ST. PAUL TRAVELERS, Respondent /Insurance Carrier-Appeliee. CERTIORARI 0 THE INTERMEDIATE COURT OF APPEALS (CASE NOS. AB 2007-497 and 2007-498) a PLICATION FOR WRIT OF CERTIORARI (By: Moon, C.J., for the court") Petitioner/claimant-appellant Lola Suzuki’s application for writ of certiorari, filed on June 30, 2009, is hereby rejected, DATED: Honolulu, Hawai'i, July 27, 2009. FOR THE COURT: r® ope ( "SEAL Aét Justice 2 meee ws ral, considered by: Moon, C.J, Nakayama, Acoba, Duffy, and Rech on
28fdb816b7f1d44258fdd9e064e23215686d7c31abbe9961320fd0d59d147b35
2009-07-27T00:00:00Z
6992f109-729a-4851-8b51-befbc5e9ec54
Yasuhara v. Alm
null
null
hawaii
Hawaii Supreme Court
No. 29889 gate IN THE SUPREME COURT OF THE STATE OF HAWAI'T- MATTHEW YASUHARA, Petitioner, al THE HONORABLE STEVEN S. ALM, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent. ORIGINAL PROCEEDING (CR. NO. 8-1-0391) ORDER (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) upon consideration of the petition for a writ of mandamus filed by petitioner Matthew Yasuhara and the papers in support, it appears that bail after conviction of a felony is not a matter of right after revocation of probation and before resentencing. See HRS $$ 804-4 and 706-626(2) (Supp. 2008). Therefore, petitioner fails to demonstrate a clear and indisputable right to relief and petitioner is not entitled to mandamus relief, See Kena 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 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. DATED: Honolulu, Hawai‘i, July 8, 2009. Yro— Resse GM reaitiory ore Kerme uate Me & Meio
10f73b0f6cefddfd1eb9effeb7d072b5531603c03f16de434837cdad9f9f6762
2009-07-08T00:00:00Z
71c81b27-bfc0-402e-9e04-ed1ad0663f00
Loher v. State
null
null
hawaii
Hawaii Supreme Court
No. 27844 IN THE SUPREME COURT OF THE STATE OF HAWAT'T FRANK 0, LOHER, Petitioner/Petitioner-Appellant, STATS OF HAWAI'I, Respondent /Respondent-Appellee. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (8.P.P. NO. 05-1-0067) ORDER DISMISSING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court") Petitioner/Petitioner-Appellant’s application for writ of certiorari filed on July 7, 2009, is hereby untimely and dismissed for lack of appellate jurisdiction. DATE: Honolulu, Hawai'i, August 5, 2009. FOR THE COURT: Pecute 0. Associate Justice Frank 0. Loher, petitioner pro se, on the application + Moons Cas» Nakayama, Acoba, and Duffy, JJ., and Circuit Juage McKenna, in place of Reckrenwaid, Jv, recused.
54c185e17e90d86f0b945b43e7e1b2a52fcba86df4f0f5586ff55d28ca602198
2009-08-05T00:00:00Z
ef002b14-2117-4e41-a581-90a663b728cd
Crook v. Fujino
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No, 29965 IN THE SUPREME COURT OF THE STATE OF HAWAI'I SHANNA LET CROOK, Petitioner, THE HONORABLE MELVIN H. FUJINO, JUDGE OF FANILY COURT OF THE THIRD CIRCUIT, STATE OF HAWAI'I, and THOMAS NW, PACE, Respondents. ant ORIGINAL PROCEEDING (FC=P No. 08-1-108K) ORDER Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner Shawna Lei Crook and the papers in support, it appears that the “simultaneous proceedings” provision of HRS chapter 583A (Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)) did not apply to FC-P No. 08-1-108K inasmuch as: (1) HRS §§ 583A-206(a) and (b) (2006) apply when a child-custody proceeding has been commenced “in a court of another state having jurisdiction substantially in conformity with the [UCCJEA]” and (2) the child-custedy proceeding conmenced in California in GF0022980 was not commenced in the subject child's home state, such that the California court did not have jurisdiction substantially in conformity with the UCCJEA. see HRS §5 583A-201(a) (1) and 563A-102, It further appears that the Lifting of the stay of FC-P No. 08-1-108K was within the discretion of the respondent judge and the lifting of the stay was not a flagrant and manifest abuse of discretion. Therefore, petitioner is not entitled to mandamus relief. See Kema vy. 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. Where a court has Giscretion 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 2 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, BT 18 HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, August 7, 2009. Gro Pecsetee Cc ready ore Goce Rett Br Pd, lect Cum /
13f14768305ee0c0c3334ea418776932ebfa961ad58b990f51d487954ee3c9ec
2009-08-07T00:00:00Z
cdd2c46e-88d3-4f41-96ea-7ca12fb70c22
Lemus-Perez v. Loo
null
null
hawaii
Hawaii Supreme Court
LAW LIBRAR no. 29916 IN THE SUPREME COURT OF THE STATE OF HAWAI'I RAUL LEMUS-PEREZ, Petitioner, = me THE HONORABLE RHONDA I.L. LOO, JUDGE OF THE orsraRge cour OF THE SECOND CIRCUIT, Stare OF HAWAL'I, Respondent. = o3ns ORIGINAL PROCEEDING (CASE NO. 2DTA-07-01362) ORDER Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner Raul Lemus-Perez and the papers in support, it appears that the June 25, 2009 order resetting the hearing date on the motion to dismiss Case No. 2DTA-07-01362 was Signed by respondent Judge Rhonda Loo for Judge Simone Polak, the presiding judge in Case No. 20TA-07-01362. The hearing date was apparently reset to allow the motion to dismiss to be heard by Judge Polak as presiding judge. Resetting the hearing date on the motion to dismiss was within the discretion of Judge Polak and was not 2 flagrant and manifest abuse of discretion. ‘Therefore, petitioner is not entitled to extraordinary relief. See Kena v. Gaddis, 91 Hawai'i 200, 204, 982 P.24 334, 398 (1999) (A weit of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates @ 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, nor are they intended to serve as legal remedies in lieu of normal appellate procedures. here 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, I? 1S HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai't, July 13, 2009. Gorm Peete Oeuaeeny Ore aN nm Ab, Bye Teer & Ae lebene{ /
629cd986076e264840f72179cad17c47b81fe8adb38bd99c2bad9658ff7d603c
2009-07-13T00:00:00Z
22d5e4b9-88a0-4be7-b531-1477f45572ad
Save Diamond Head Waters, LLC v. Hans Hedemann Surf, Inc. ICA Opinion, filed 12/19/2008 [pdf], 119 Haw. 452. Application for Writ of Certiorari, filed 02/05/2009. S.Ct. Order Accepting Application for Writ of Certiorari, filed 03/16/2009 [pdf].
121 Haw. 16
null
hawaii
Hawaii Supreme Court
LAW LIBRARY ++ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** OF HAWAI'I IN THE SUPREME COURT OF THE ‘000-== RS LLC. a Hawaii limited SAVE DIAMOND HEAD Wi KAPIOLANI PARK PRESERVATION SOCIETY, liability corporation; LUC, a Hawaii limited liability corporations MIKE an indi BEASON, and RICHARD K. QUINN, ‘an individual rs /Rppellants-Appellees, Petiti: HANS HEDEMANN SURF, INC. Respondent /Appellee-Appeliant, = co SOHIKY CF nega and CITY AND COUNTY OF HONOLULU, by and through the DEPARTMENT OF PLANNING’ AND PERMITTING, Respondent /Appellee-Appellee, and McINERY FOUNDATION, a Hawaii corporation; and HOTEL KAIMANA, INC., a Hawaii corporation, Respondent s/Appellees-Appellees. Waters, Beason; No. 27604 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO, 5-1-1145) JULY 13, 2009 MOON, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ., AND CIRCUIT JUDGE ALM, ASSIGNED’ BY REASON OF VACANCY OPINION OF THE COURT BY DUFFY, Petitioners/Plaintifts-Appellees Save Diamond Head , LLC; Kapiolani Park Preservation Society, LLC; Mike ollectively SDHW) filed a timely and Richard K. Quinn Application for Writ of Certiorari (Application) urging this © FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** court to review the January 9, 2009 judgment of the Intermediate Court of Appeals (ICA) based on its Opinion in Save D Waters, LLC, V. Hans Hedemann Surf, Inc. (SDHW), No. 27804, 119 Hawai'i 452, 198 P.3d 715 (App. 2008). The ICA’s Opinion lead reversed the circuit court of the first circuit's! (circuit court) April 19, 2006 Amended Final Judgment on Administrative Appeal, Vacating and Modifying Decision of the Zoning Board of Appeals Matter Number 2004/28A-04. In its Application, SDM presented the following questions: 1. Must a reviewing court use the de nove standard of review to ascertain the scope of authority granted to an administrative agency by a legislative body? 2. Goes an acministrative agency (here the [Department of jernitting and Planning ("DE?)]} have the power to {ft and interpret administrative rules in » fashion contrary to the plain language of the governing ordinances? 3. Must an administrative agency apply exieting statutory standards when exercising its quasi-judicial function or ray st ignore such standarde and craft new Steasonable” standards? 4, Must the reviewing courts coneider and apply the statutorily imposed standards in reviewing the quasi- Judicial determinations of the agency? 5. Does an administrative agency exceed ite power by conditioning a zoning variance on the applicant lundertaking to fulfii1 a public police function, such 5 maintaining order on a seawall hundreds of yards from the applicant’ s premises? We accepted SDHi”s Application on March 16, 2009, and oral argument was held on May 7, 2003. ‘The Honorable Eden Elizabeth Hifo presided. 2 FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** For the following reasons, we (1) vacate the ICA's opinion and (2) affirm the circuit court's amended final judgment fon the grounds that the Director's mixed finding of fact and conclusion of law that the Hans Hedemann Surf, Inc.'s (Surf School} use of the New Otani Kaimana Beach Hotel's (Hotel) premises was a permissible change in nonconforming use was clearly erroneous as it is not supported in the record, BACKGROUND AL Factual Backaround The ICA set forth the following facts in its opinion: Hedonann operates Hans Hedenann Surf School (Surf School], 2 commercial surfing school, at four O'ahu locations. This Sispute relates te the surf School Located on the ‘ground Floor (Shop #7) of the Hotel. The Hotel consists of 124 Unies and ts situated on WalkrkI beach, in che ares makas'"! Of Kapiolani Fark and Kalakaus Avenue ‘and between Kaimana Beach Park on the “Eval” side and various other properts fon the opposite side. The Hotel was constructed in 1950 and expanded in 1962, At the time it was built, the property underlying the Hotei was toned as pare of the fotel and Apartment Oletriet SL." This zoning district dia not allow for comercial uses other than businesses that primarily served the tenants and Occupants of the bulldings in unich they were located, know a5 “accessory uses.” # ~*Makait is a Hawaiian word meaning ‘on the seaside, toward the sea, in the direction of the sea,’” OAM, 119 Hawai'i ar 455 n.3., 198 P.34 at 118 nl3. (quoting Mary Kawona Fukui, Sanuél #, Elbert, Hawaiian letionary, 224 (rey. ed. 1986)! “'Ewa’ is a “{p]iace name wast of Honolulu used as a direction kerm.’” SOM, 128 Hawaili ae 455 nev 198 B.3d at 716 n-4 (quoting Hawaiian Dictionary at 42) At the tine the Hotel was expanded, business uses were prohibited within hotel and apartment districts, Revised Ordinances of Honolulu (ROH) 5 2is3. (1557). However, accessory uses were permitted 28 follows: ‘1° FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER *** On January 2, 1969, the Comprehensive Zoning Code tock effect. This placed the Hote! inte an Aud Apartment District, whien did not allow hotels, “Again, only accessory Gcanercial uses were permitted in buildings contaccing a Biniman of $0 dvelling or lodging unite and no external evidence of the existence of the accessory uae was permissible on Decenber 23, 1982, Ordinance £2-58 (the Land Use Ordinance (400) codi fied ax ROH Chapter 21) changed the zoning of the Hotel to ite current Av? Medium Density Apartrent District designation. Hotel and accessory uses fare not permitted in Ac? districts. However, because hotel Use Was acceptable at the time of the Hotel's construction (Clertain accessory uses incidental to and customarily conducted within hotel and apartment districts shall be permitted and allowed, provided they are in compliance with Sil existing laws, ordinances, and Fegulatione spplicable thereto. The form accessory uses” shal include, without Liniting the generality of ts meaning, restaurants, barber ‘shops, Beauty parlors, massage studioe, haberdasheries, Wearing apparel shops, flower shops, newestande, gift shops and other personal service shops ROH $ 21-3.1(a). Accessory uses were limited to apartrents and hotels with ore than twenty rooms. RON § 21-3.1(a) (1)- Additionally, the “personal shops and businesses shall be operated prinarily as a service to and for the Convenience of the tenants and occupants of the building in which such srvices are located(.)" KOM § 21-3.1(a) (2). Further, no doors, entrances, signs, adverticanents, or displays could be locates on the exterior of she Baildings. ROW § 21-3.1(a) (3)~(4) + follow “Accessory use" is currently defined “Accessory use” means a use which meets the following conditions (1) Tea use which is conducted on the same zoning let as the principal use to which it is related uhether located within fhe same building or an accessory building or structure, oF a5 an accessory use of Lend) (2) 2s clearly incidentat to and customarily found in connection with the principal usey and (3) Te operated and maintained substantially for the benefit or convenience of the cuners, occupant, employees, custoners of visitors of the zoning lot with the principal use. Land Use Ordinance {100} § 21-10.1 (1990), ‘ **¢* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** land the Hotel has continued to b Survives cea nonconforming use. used as @ hotel, hotel use The record is unclear as to when the Hotel's use of Shop #7 ended and its use for commercial purposes began. As early as. 1993, other commercial tenants used shop #) to rent fut kayaks, body boards, ‘surfing and other seach equiprent ‘The record fails to establish wnether the prior rental businesses constitutes an accessory use ora non-accessory se, iver, whether the customers of these Basineases were’ prinarily’notel guests or the general public. Hedesann began renting Shop #7 en January 1, 2002. Hodemann both rents and sells equipment bot primarily wes fhe space aa “an assembly point for its clients.” A Scubstantiai partion” of Hedenann’ s custoners are Brought the location via shuttle from other Waikiki locations. At Shop #7, students are iseved surfboards and they use the Hotei's’ property outside Shop #7 to reach the ocean, where Surfing Lessons are conducted.” Although shop #7 had been previously used to rent ocean equipment, Hedensnn's use Sf Shop #7 genezates “widespread Local opposition.” Tt ia onclear from the record when that opposition began, but a petition signed by approximately 700 people objecting to the Surf Schools activities was submitted during these proceedings. Zn. Particular, area residents conplained of noise, congestion, Parking issues, vandaiion, erespassing and “other ili: Eaused by the Surf school * At the time the LUO changed the zoning of the Hotel, “a nonconforming use” was defined a5 Any use of 2 structure or zoning lot which waa previously Lawful but which does not conform to the applicable use. regulations of the district in whicn it is loceted, either fon the effective date of this Chapter or as a result of any. Subsequent anendnent wo Art, IX, (1983 ed.) The current definition of “a nonconforming use” ss: ‘Nonconforning use" means sny use of a structure or a roning ot which was previously lawful but hich does not conform to the applicable use regulations of the district in which it ig Located, either on October 22, 1986 or az a feault of lany subsequent amendment to this chapter [LUO], or 2 zoning nop amenament wo $ 21-10.1, “*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** ‘SOHW, 119 Hawai'i at 454-56, 198 P.3d at 717-19 (some footnotes omitted). B. The Director's Declaratory Ruling On March 4, 2004, SOHW filed a petition for a declaratory ruling from the Director of the City and County of Honolulu Department of Planning and Permitting (DPP) on whether the Surf School “operates in compliance with the regulations of the zoning ordinance for nonconformities.” In beginning his analysis, the Director set forth the provisions of the Land Use Ordinance (LUO) that relate to nonconforming uses. He quoted LUO § 21-4.110(c) (1), which states that A nonconforming use shall not extend to any part of the Structure or lot which wae not arranged or deeigned for euch Use at the tine of adoption of the provisions of thie Chapter or subsequent anenanent; nor shall she nonconforming lise! be expanded in any manner, of the hours of operation Increased: Notwithstanding the foregoing, a recrestionsl lise that is accessory to the nonconforming use may Be expanded or extended if the following conditions are met: () The recreational accessory use will be expanded ox extended to a structure in wnich a permitted use aso {S'being conducted, whether that structure is on the sane lot or an adjacent lot; and (B) The recreational accessory use is accessory to both the perritted ee and the nonconforming wee. The Director then quoted LUO Sec. 21-4.110 (c) (4), which governs changes in nonconforming uses, states that Any nonconforming use may be changed to another Ronconforming use of the same nature and general impact, ox to a more restricted use, provided chat the change toa nore restricted use gay be sade cnly if the relation of the use’ Xo_she surcounding property ie auch thet adverse effects on ‘Bocubants and -nelanbarina progert ies Mil nat oe srester shat_if the ofiains! nonconforming use contanued. 6 *** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER * (Emphasis in original.) The Director firat found that the Surf School was not an accessory use of the Hotel because “{mjost of the students are not guests of the on-site hotel.” See LUO § 21-10.1 (" ‘Accessory use’ means a use which . . . [i]s operated and maintained substantially for the benefit or convenience of the owners, cccupants, employees, customers or visitors of the zoning let with the principal use."). Rather, the Director concluded that “the use should be considered an ‘office’ since the primary on- site activity is the assembly and registration of students and the distribution of surf boards to then.” ‘The Director further found that the Surf School was not an expansion of a nonconforming use prohibited by LUO § 21-4.110(c) (1). He reasoned that the Surf School did not involve “a new structure or the physical expansion of an existing structure” and the hours of the surf school -- 8:30 a.m. to Pom. == could not be considered an expansion of the Hotel's ‘twenty-four hour operation. Instead, the Director found that “the establishnent of a surf school on the site more properly represents a ‘change in use,’ rather than an ‘expansion’ of the nonconforming us To frame his analysis of whether the Surf School was a permissible change in nonconforming use, the Director stated that “+ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** current soning regulations clearly permit changes in nonconforming use under LUO Section 21-¢.110(e) 14), provided ‘the change in use does not result in greater adverse effects for occupants and neighboring properties. This means that any of the ground-flocr commercial uses on the site Considered principal uses, including the surf school, Permissible so long as their impact on surzcunding Properties is no greater than that of the hote! use, ‘The Director Limited the adverse effects under consideration to the “adverse effects on the various land uses within the neighborhood, including the seawall, rather than on the ocean itself.” The Director noted that “(t]he LUO does not stipulate criteria that must be applied to changes in nonconforming use in order to determine whether a greater adverse effect will occur, 80 changes in nonconforming use must be evaluated on a case-by-case basis.” As a result, he analyzed the nonconforming use issue according to the framework provided by “Interpretation No. 88/INT-6, issued by the DPP on December 19, 1988, [which] addresses how changes in nonconforming use can be evaluated by providing guidelines for decision-making on whether a proposed change in use may involve greater adverse effects.” The interpe fon how to defin ation number £8/INT-6 (Decenber 19, 1986) provid ‘sane nature” and "more restricted use": guidance Each change in use shall be evaluated on a case-by-case basis, ting the following guidelines for decision-making? Hours of operation Are the hours longer or changed in 9 Way which say create conflicts with Surrounding conforming uses? Chientele volume Are nore clients or visitors Gxpectes to be attracted to the site? the parking standard higher, or the parking demand expected to be Parking e 8" FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** following portions of the Director’s analysis are most relevant to the dispositive issue of this appea: School's use of the Hotel's premises was a permissible change whether the surt nonconforming use under the LUO. As analyzed by the Director: eestNt-6 2. GLdentele Volume: Information available to the DFP Concerning tne hanber cf sur! school customers (students) indicates that class size varies greatly. For purposes of this Analysis, ‘Sci school cpersting on the araunds of the note: should be _nodreater than iit operated a2 an ‘Aocessary use of the hotel At issue then Te the Tevet of activity or intensity of ase which results in Greater adverse effects. OPP staff observed no Significant impacts associated with the surf school ietivities on the morning they conducted their site Sisit. At that time, there were only 4 students in the class. “On the other hand, @ large nunber of Complaints from area residents, over a sustained period of tine, clearly indicates that there are Bdverse effects associated with the surf school's activities, particularly when class size is Large. Relevant sulsances include noise (shouting and yelling) and congestion at the seawall. further, it would be difficuit to find that a class savolving 30 £0150 students would be typinal for sn accessory use sia l2éunit note). higher? Traffic Will" the new use attract heavier vehicles or greater frequency of vehicle ceips? Noise Te more noise expected? During aight hours? Compared to the previous non-conforming use, is the proposed Use compatible with existing Surrounsing uses? Wish conforming Adjacent Nonconforming commercial accessory uses in Waikiki would be allowea to continue even if the Duilding is converted ts apartment. us oacenber 19, 1988) 0 FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** ‘The DPP is not aware of any historical adverae effects associated with the operation of the nonconforming hotel on the site similar to those associated with the surf school Felative to noise, seawall congestion, and tncompatibilitii With surrounding and conforming uses on the properties in the surrounding neighborhood. the relationship between the surf schosl and these adverse effects are apparently Associated with large surfing class site, and should be Controlled by limiting class size. If the adverse effects Gan be controlied by limiting clase sie, than she sure achool's activities should aot have an inpact areater than i itns| curt schesl cperated ae accectory ase of the hotel. The clase site should be Limited to no more than Tz students er Session, and no more than 3 sessions per day. The surf School operator should also take appropriate actions te Binimize congestion along the seawell edjacent to the Shoreline in the vicinity of ite activities during the periods of ita surfing insteuction. Finally, it is the operator's responsibility to comply with these Controls. Failure to comply may necessitate reevaluation by the DFP concerning its conclusions about the ability to mitigate the related adverse effects of the surf School on the surrounding neighborhood. If the adverse effects cannot be adequately controlled a discussed herein, then the conclusions reached by this Analysis may need to be revised accordingly, and, a conclusion that this particular Shange in nonconforaing use cannot be permitted under any Eondstscne. (Emphasis added.) Based on the above analysis, the Director made conclusions of law which stated, in relevant part, F, Since it constitutes a principal use, the surf school festablishnent on the site shail be considered a change in fonconferming use for the comsercial space specifically identified ag Shop No. J. The change in use 13 from a principal hotel to office use. There is adequate evidence that the surf school tablishment can involve greater adverse effects (in Particular seawall congestion, noise, and Unconpatibiiiey with surrounding residential end apartment uses) cn surrounding properties within the Beighborhood when the size of a surfing class is £00 large. The change in nonconforming use, which occurred at the Jocation identified as shop No. 7, has the potential For greater adverse effects than if the hotel use of 10 ++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** that location been (sic) continued, ox a Soetated a2 an accessory use of the Reter Recordingiy, the change In use shall not be permitted pursuant co LUO Section 21-4-110(e) (¢) unless the Size of the surfing classes can be limited such that the adverse effects are no longer a problem. This Limit shall be 12 students per class and 3 classes pei Gays equated to a maximum clase size of 18 people (52 Students ang 3 instructors). If the intensity of use should ever exceed this level, then it shall Constitute a soning vielation of 00 Section 21- Elio (c) (41, and the establishment and/or Landowners Gf lessees shall be subject to appropriate enforcement seticn, (Emphasis added.) The Director’s Declaratory Ruling stated: The Hans Bederann Surf Schcol may operate on the site as a permitted change in nonconforming use (fren hotel to bffice), subject to the provisions of 100 section 21- 4.110(c} (4), provided: A, Its related surfing instruction operations shall not at any time exceed a maximum size af 12 students per Glass, and 3 classes per day: ang B. The surf school operator shall take appropriate actions to insure that the seawall adjacent to the Shoreline in the vicinity of its operations is kept free of congestion during its periods of instruction. C. The Zoning Board of Appeals Decision SDHW timely appealed to the Zoning Board of Appeals (2BA) on June 29, 2004. The ZBA subsequently conducted a contested case hearing pursuant to the ZBA’# rules and the Administrative Procedure Act, Hawai'i Revised Statutes (HRS) chapter 91, The 28A affirmed the Director's Ruling: 22, the Director's Ruling was not based on an erroneous finding of material face and was not an aroitrary Sr capricious (sic), nor did the Director abuse nie discretion in concluding that (Hedenana)'s use of the Stop fon the {Hotel} Property is 2 permitted change in nonconforming use. a © FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** 13, the Director*s determin: Hedemann) = luce of the Shop [# 7] on the [aotel] Property as an office for surfing instruction, subject to conditions war not Based on an erroneous finding of material fact, was neither "ous, Ror an abuse of hit dsscretion, Pe ‘ “ or. SDHW appealed to the circuit court. The circuit court vacated the 2BA’s decision “insofar as it allows the operation of a commercial surf school at [the Hotel).” The circuit court focused on “whether the Director has the power to grant a WO § 21-4.110(c) (4) exception by crafting ‘conditions’ in this case by imposing volume restrictions on new use -- to mitigate any greater adverse effects on surrounding Properties."” After considering the issue de nove, the circuit court made the following conclusions of 1: 14, lhether the Director has the authority under the v0 and the City Charter to craft “conditions” to's change ia Aonconforming use in order that the adverse effects on Aeighboring properties will not be greater than the original henconfarming use, and thereby bring a change in onconforning use within the ambit sf the 1JO § 21-6,120(e), Exception, is 9 Legal question subject to ge news review. Yt requires the interpretation of the governing statutes, including the L00'and the Honolulu Revised city Charter. ‘The circuit court did not reach the other issues in SDifi's appeal: 23, the Court, in Light of its decision here, does not re: ised by Petitioners, including the Tgufulnese of (1) the delegation by the Director of nis authority co a private entieyi (2) the Direstor® determination that the change from a Rotel uae to 6 commercial use and then a change from an accessory, Commercial use to a non accessary commercial [sic] do not constitute a forbidden “expansion of use”; and (3) she Director's finding that the nonconforming surf school use was of the “sane nature and general impact” as the hotel 2 “+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** 15. No provision of the City Charter grants the Director the power to craft conditions to anelisrate adverse effects bf atehange in nonconforming use on neighboring properties, 80 that the L00 § 21-¢.110(2) (4) exception can be used 16. No provision in the 100, and particularly LUO $ 284.2010) gives the Director the power to craft Conditions to’aneliorste adverse effects of a change in Renconforming ose on neighboring properties go thar the 10 $ 21-4-110(c] (4) excepeion can Be used. The ordinance implies the opposite: “strict Limits are placed on Ronconforming dacs to discourage the perpetuation of these Uses and thug facilitate the timely conversion to conforming 17. the Director interpreted the LUO § 21-4.110(c) to permit a change {rom one nonconforming use to a new Ronconforming use, notwithstanding adverse effects from the Renconforming uae, subject only to conditions he imposes ts TiSie"Sacn adverse eetects. 18. The Director's interpretation of the 100 grants broad authorsty to himself 20 allow certain variances by eratting his omn conditions. this interpretation contradicts the City Charter, which imposes a detailed Fegulatory achene for allowing variances, 19. The Land Use Ordinance is subordinate to the city Charter. Any interpretation of the 100 which conflicts with the Charter ie contrary to law: ‘The proposition is self-evident that an ordinance must Contorm to, be subordinate ts, not conflict with, and pot exceed’ the charter, and can no more change oF Limit the effect of tho charter than a legssiative act can modify or supersede = provision of the Constitution of the state. Ordinances must not only Conform with the express terms of the charter, but they must not conflict in any degree with its object Sr with the purposes [of the charter). Mazeie vs 09 Soto, 80 Haw. 425, 431, 911 P.2d 60, 66 (1996), citing, Fasi-y. City council, 72 Haw. 513, 518, 623 P.2a 242, 744 (1992). Resord, Nedabborhood Boatd Now 24 Waianae Coaae) v, State Lana Use Conmission, 6¢ Haw, 265, 639 P-2a i037 (1982). 20. ‘They the Director's interpretation of the LUO to ‘Allow a 100 $ 21-4.110(c) (4) exception notwithstanding Soverse effects of the new nonconforming use on the Reighboring parcels and occupants, was in violation of the Orainance itself, in violation of the Revised City Charter, exceeded the Director's authority and the jurisdiction of the agency and the Director's order was made upon unlawful procedure. Accordingly, the detersinations of the Director 13 “+ FOR PUBLICATION IN WEST'S HAWAL'I REPORTS AND PACIFIC REPORTER *** and the ZBA below were contrary to (1) the LUO and (2), the Revises City Charter and (3} in excess of the Director's authority. Pursuant to HRS § 91-18(1), (2) and (3), the determinations of the 28h are overruled. 22.{aic] The Director's failure to follow the LUO and the Honolulu Revised city Charter has allowed the surf school's operation to continue in spite of she adverse Impacts caused by such operation, Given the amount of Raterials supnitees in the record cataloguing adverse Gmpacts associated with the surf school and the Lengthy period the surf school has been operating on the Eraperty, the Court finds that substantial rights of che Fetseioners have been prejudiced, In the circuit court's Amended Final Judgment on Administrative Appeal, Vacating and Modifying Decision of the Zoning Board of Appeals Number 2004/ZBA-04, it stated that: Pursuant to Hawal'l Revised Statutes § 91-14, it Le hereby ordered, adjudged, and decreed that (SOHW)"S appeal is Granted and the court. hereby’ Vacates the June 3, 2005 decision of the (204) c"insofar az it allows the operation sf 2 Commercial surf school operation at or,on {Hotel’s property] in derogation of it's a-2 Medium Density Apartment District Zoning Modifies the June 3, 2005 decision of the 8A in 428A matter ‘munber 2008/28A-08, by inserting the following: The Director of the Department of Planning 3nd Permitting’s declaratory ruling that the Hans Wedesann Surf School may operate on the grounds of the New Otani Kaimana Beach Hotel (sic) a permitted change in Roneonforning use (from hotel to office) , Subject to the provisions on [sic] ROH § 2i-dtio(e), was arbitrary and/or capricious and constituted an abuse of Giberetion, Orders Respondent /Appellee city and County of Monolutu, by and through the Zoning Board of Appeals and the Departeent of Planning and Permitting, to take all necessary actions te effectuate this orser{-) (Some internal capitalization modified.) u4 “*** FOR PUBLICATION IN WEST'S HAWAL'I REPORTS AND PACIFIC REPORTER *** The Surf School appealed to the ICA. The ICA reversed the circuit court's judgement, concluding that the Director had discretion to grant the impact-aneliorating conditions and did not abuse his discretion in finding that the Surf School's use Shop # 7 constituted a valid change in nonconforming use of shop # 7 because the “ruling was reasonably based on the evidence before the Director and constituted a reasonable application of the applicable zoning ordinance and the DPP’s previous interpretation of that ordinance.” SDHM, 119 Hawai'i at 465, 198 P.3d at 728. IT. STANDARDS OF REVIEW A. Appeal from the ZEA The ZBA As the administrative agency designated to hear and Geternine appeals from the director’s actions. in the administration of the City and county of Honolulu zoning cose. ip 77 Howat 168, 175, 683 Pea 623, 656 (1394) - Thue, she 28's order was sn acministrsvive decision subyect to review by the circuit court. Hawai Revised Statutes (BRS) § 91-14 (2). Windward Marine Resort, Inc. v. Sullivan, 86 Hawai'i 171, 177, 948 P.2d 992, $98 (App. 1997). Review of a decision made by theo: review of an agency's decision Whether the circuit court wae right oF wrong in ite Secision, applying the standards set fereh in HRS § 91-1 (1993) £0 tne agency’s decision. Citizens Against Reckless Dev. v. Zoning Bd, of Appeals, 114 Hawai‘l 184, 193, 159 P.3d 143, 153 (2007) (citing Korean 35 “+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** mple of zu Livan, 87 Hawai'i 217, 229, 953 P.2d 1315, 1327 (1998), HRS $ 91-14(g), “Judicial review of contested cases,” provides: (a) Upon review of the record the court may affirm the Gecision of the agency of remand the case with instructions for further proceedings; or it may reverse oF modify the snd order if the substantial rights of the petitioners may have been prejudiced because the Sdsinistrative findings, conclusions, decisions, or orders (2) tn violation of constitutions provisions; or or statutory (2) th excess of the statutory authority oF jurisdiseion of the agency’ oF (3) Made upon ui awful procedure: or (a) Affected by other error of law oF (3) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole Fecord; of (6) Arbitrary, or cepricious, of characterized by abuse of discretion or clearly unarranted exercise of Siseretion. HRS § 91-14(g) (1993). “*Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4)+ questions regarding procedural defects are reviewable under subsection (3); [findings of fact] are reviewable under subsection (5); and an agency’s exercise of discretion is reviewable under subsection (6)."" Paul v. Dept sp., 115 Hawai"i 416, 426, 168 P.30 546, 556 (2007) (internal brackets omitted) (quoting Konno v. County of Hawai'i, 85 Hawai'i 61, 77, 937 P.2d 397, 413 (1997). “A conclusion of law that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the 16 ‘*** FOR PUBLICATION IN WEST'S HAWAF'I REPORTS AND PACIFIC REPORTER *** conclusion is dependent upon the facts and cir metances of the particular case.” esh Produce (Hawaii), tne. Internati al_Longsh wi y ocal 142, AFL-CI0, 112 Hawai'i 489, 499, 146 P,3d 1066, 1076 (2006) (internal brackets and quotation marks om: ed) (quoting Brice v. Zoning Bd. of L gi ty of Honolulu, 77 Hawai'i 168, 172, 883 P.24 629, 633 (1994). B. Interpretation of the Revised Ordinances of Honolulu and the Sharter of the City and County of Honoluly We have stated that: When interpreting municipal ordinances, we apply the sane Fules of construction that we epply to seatates: While an Aaziniscrative agency's interpretation of the ordinance that Ges responsible for iaplenenting is normally accorded great weignt, no deference is required when the agency” Gneerpretation conflicts with or contradicts the manifest purpose of the ordinance it seeks to implement Colony Surf, Ltd. v. Dir. & Permitting, 116 Hawai'i 510, 514, 174 P.3d 349, 353 (2007) (quoting City 6 County of Honolulu v. Hsiung, 109 Hawai'i 159, 172, 124 P.3d 434, 447 (2005). ‘This court reviews the interpretation of a statute de Journalists Univ. of Hawai'i Chapter, 83 Hawai'i 378, 402, 927 P.2d 286, 410 (1996). Statutory construction is guided by established rules: First, the fundamental Second, where the stat\ “+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** le duty i to give effect to ite plain and sbvicus seaning, Third, implicit in the Faek of statutory construction is’ our foremost Obligation to ascertain and give ee! intention of the legislature, which is to inariiy from the language contained sn elf. Fourth, when there is doubt, doubleness of neaning, or indietinetiveness or uncertainty of an expression used ina statute, an ambiguity exis Peterson v. Hawai'i Elec, Light Co., Inc., 85 Hawai‘! 322, 327-28, 944 P.2d 1265, 1270-71 (1997), superseded on other grounds by HRS § 269-15.5 (Supp. 1999) (block quotation format, brackets, Unambiguous, our citations, and quotation marks omitted). Likewise, “(t]he interpretation of [a] charter { Similar to the interpretation of a statute.” Maui County Counc: va Thompson, 84 Hawai"i 105, 106, 929 P.2d 1358, 1356 (1996). Specifically, [ijn interpreting zoning ordinance [under the LUO}, the duty of this court ia to ascertain and give effect to the intent of the Honolulu city council’... - Legislative intent should be determined, if possible, from the Language of the ordinance, and the language sust be read in the Context of the entire ordinance and construed in a manner Consistent with the purposes of the ordinance. State v. Lum, 8 Haw. App. 406, 410, 807 P.2d 40, 43 (1992) (citations omitted) . TIT. DISCUSSION As noted earlier herein, the dispositive issue is whether the Surf School’s use of Shop # 7 of the Hotel's premises was a permissible change in nonconforming use (from hotel to office) under the 1U0. For the following reasons, we hold that the Director's mixed finding of fact and conclusion of law that 18 *** FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER the Surf School’s use of the Hotel’s premises was a permissible change in nonconforming use was clearly erroneous as it is not supported in the record, A, Purpose of the 10 ‘The stated purpose and intent of the LUO is as follow: (a) The purpose of the 100 is to regulate Land use in a Banner that will encourage orderly development in Accordance with adopted and use policies, snslusing the Oany general plan and development plans, and t2 promote and protest the public Health, tasaty ane Nelfare by, hore particularly: (i) Minktszing adverse effecte resulting from the inappropriate location, use oF design of sites and structures: (2) Conserving the city's natural, historic ang Scenic resources and encouraging design which enhances the physical form of the citys and (3) Asaiseing the publie in identifying and understanding Feguiations affecting the developnent and ase of land. WO § 21-1.204a) (1). B. Permissible Nonconforming Uses Under the LUO Notwithstanding the stated purpose of the LUO, HRS § 46-4 requires that the counties permit certain nonconforming uses: “Neither this section nor any ordinance enacted pursuant to this section shall prohibit the continued lawful use of any building or premises for any trade, industrial, residential, agricultural, or other purpose for which the building or premise: is used at the time this section or the ordinance takes effect.” HRS § 46-4 (a) (1993). The burden to prove that a nonconforming use is valid is on the “owner, occupant or user,” who must “prove that a lot, @ structure, a use, a dwelling unit, or parking or 19 **+ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** loading was legally established as it now exist.” U0 § 21- 4.110 (emphasis added). At the county level “[s]trict limits are placed on nonconforming uses to discourage the perpetuation of these uses, and thus facilitate the timely conversion to conforming uses.” LUO § 21-4.110(c). See alse LUO § 21-4.110 ("Constraints are placed on nonconformities to facilitate eventual conformity with the provisions of [the LUO]. Several provisions of the LUO regulate nonconforming uses. According to the Luo, [al nonconforming use shall not extend to any part of the structure or lot which was not arranged or designed for such lise at the tine of adoption of the provisions of this Chapter or subsequent anenauent; ner shall she nonconforming lise be expanded in any manner, or the hours of operation snereased. WO § 21-4.110(c) (1). However, the LUO allows for changes in nonconforming uses that do not conflict with Wo § 21- 4,120(c) (1). See 190 § 21-4.110(c) (4) (providing conditions that must be satisfied to support a permissible change in nonconforming use). Even if a valid nonconforming use existed at the time the zoning changed, that use will be terminated if there is an extended discontinuation of the nonconforming use. LUO § 21- 4,110(c) (2) provides that: Any nonconforming use that ie discontinued for any re for 12 consecutive nonths, of for 12 months during any 20 o** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** three-year period, shat temporary cessation of inary repairs for a ny 12-month perio’ oh Ségcontinust ion. 1 however, a use. for’ purposes ‘not exceeding 120 days during Be considered LUO § 21-4.110(c) (2). It logically follows that once a nonconforming use is terminated there can no longer be a change in nonconforming use based on the terminated use ‘This court construes zoning ordinances under the LUO in parimateria. See Colony Surf, 116 Hawai'i at 516, 174 P.3d at 395; Waikiki Marketplace v. Zoning Bd, of Appeals, 86 Hawai'i 343, 354, 949 P.2d 183, 194 (App. 1997). Based on the provisions of the LUO pertaining to nonconforming uses, the party who is arguing for a change in nonconforming use bears the burden to demonstrate that the prior nonconforming use (1) was an original conforming use of the premises that was established before the change in zoning: or (2) was the result of a valid change in nonconforming use froma prior valid nonconforming uses and (3) neither the original nonconforming use nor the prior nonconforming use has been discontinued. See LUO § 21- 4.110, (c) (2), (4). C. The Record Does Not Support a Finding That The Surf Schoo! ilas_a_Rermissible Change in Nonconforming Use Central to the determination of whether a change in nonconforming use is permissible is an analysis of whether the prior nonconforming use was legally established. 21 *** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** In this case, the Director compared the Surf School's use of Shop # 7 with a prior nonconforming accessory use of the hotel. Specifically, the Director stated: 6 of this Analysis, 1t seers reasonable te ge invuse t2 2 suet Srester than i: it operased as an Socsucory Uae of the botel «Further; it would be difticsit to find that a Sta Involving 50 to’ 50 students would bs typical for an accessory use of a i2d-unit hotel. (flor purpe: (Emphases added.) Additionally, he stated that “if the adverse effects can be controlled by limiting class size, then the surf school's activities should not have an impact greater than if Lthel surf school operated as accessory use of the hotel.” (Emphasis added.) Moreover, the Director’s conclusions of law state that “(t]he change in nonconforming use, which occurred at the location identified as Shop No. 7, haa the potential for greater adverse effects than if the hotel use of that Location been [sic] continued, or if it were operated as an accessory use of the hotel.” (Emphasis added.) ‘The Director erred when he compared the Surf School's impact to that of “an accessory use of the hotel,” because the Director could only weigh the Surf School's impact against a ecally established prior nonconforming use. Here, the Surf School's use of Shop #7 cannot be compared to “an accessory use of the Hotel” because the Surf School did not meet its burden to prove that there was a legally established prior nonconforming 22 *** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** accessory use of Shop #7. In other words, the Surf School did not establish (1) that there was a valid accessory use of Shop # 7 by the Hotel before t e 1969 Comprehensive Zoning Code 1 aged the Hotel's zoning from Hotel and Apartment District “L" to A-4 Apartment Districts or (2) there was a valid accessory use of Shop #7 before the LUO changed the Hotel's zoning from A-é Apartment District to its current A-2 Medium Density Apartment District designation. There is no evidence in the record that there was a legally established accessory use of Shop # 7 prior to the LUO. The only prior commercial use of Shop # 7 in the record was the use of Shop # 7 as a beach equipment rental shop. However, as stated by the IC, ‘The record ia unclear as to when the Hotel's use of Shop #7 fended and ita use for commercial purposes began. Ae early 21993, other commercial tenants used shop #1 to rent out kayaks, ‘body boards, surfing and other beach equipment. The record fa11s to establish whether the prior rental Businesses constituted an accessory use or a non-accessery Use, Leery whether the customers of these businesses wore prinarily’ hotel guests or the general public. SDH, 119 Hawai"i at 456, 198 P.3d at 719, As the record does not support a finding that the beach equipment rental use was an accessory use of the Hotel, it cannot be considered a valid prior nonconforming accessory use of Shop # 7. Even assuming that the beach equipment rental use was a valid accessory use of the Hotel, the Surf School has only shown that the use was uninterrupted since 1993. Therefore, the Surf School has not met 23 *** FOR PUBLICATION IN WEST'S HAWAP' REPORTS AND PACIFIC REPORTER *** its burden to show a “legally established” prior nonconforming accessory use of Shop #7. See LUO $ 21-4.110. As a result, the Director erred in comparing the Surf School's use of Shop # 7 to that of a prior nonconforming accessory use of the hotel.’ Based on the foregoing, the Director's mixed finding of fact and conclusion of law that a change in nonconforming use was permissible under LUO § 21-4.110(c) (4) was not supported in the record. As a result, the ICA erred when it concluded that the Director's ruling “was reasonably based on the evidence before the director and constituted a reasonable application of the applicable zoning ordinance and the DPP’s previous interpretation of that ordinance.” SDH, 119 Hawai'i at 465, 198 P.3d at 728. ‘SDiiii's Other Issues Because the Director’s ruling was clearly erroneous, we need not consider any of SDHW’s additional arguments. IV. CONCLUSION Accordingly, we vacate the ICA’s Opinion and affirm the circuit court’s amended final judgment but on different grounds, namely that the Director's mixed finding of fact and conclusion of law that the Surf School’s use of Shop # 7 was a permissible * thus, the only legally established prior nonconforming use on record was the nonconforming hotel ise, Although the Director stated that “any of the ground-floor comercial uses on the [Hotel] site considered principal uses, including the surf school, are permissible as long os their Inpact’on surrounding properties is no greater than that of the hotel use,” ie clesr from his analysis that he did not follow this standard. 24 ‘+ FOR PUBLICATION IN WEST'S HAWAT'I REPORTS AND PACIFIC REPORTER *** change in nonconforming use was clearly erroneous as it was not supported in the record. Dane L. Miller ‘and Wilma Sur (of Miller Tokuyama © Sur, LLP) for petitioners/appellants- appellees Save Diamond Head Waters, LLC; Kapiolani Park Preservation Society, LLC; Mike Beason; and Richard K. Quinn William W.L. Yuen ‘and Philip W.T. Chang (of Ching, Yuen & Morikawa) for respondent /appellee- appellant Hans Hedemann Surf, Ine. Don S. Kitaoka, Deputy Corporation Counsel, for respondent /appellee~ appellee City and County of Honolulu, by and through the Department of Planning and Permitting 25 Grr— Bite ON aes ert i Vann. Reedy I+ AKIA—
72f529e8830d19559be8894d2147f59c2695f57efd7eeaa44beef4c3001a9342
2009-07-13T00:00:00Z
24a07c48-c440-4dac-876a-f45203caa0f1
Tierney v. Perkins
null
null
hawaii
Hawaii Supreme Court
NO. 30189 IN THE SUPREME COURT OF THE STATE OF HAWAI#I MICHAEL C. TIERNEY, Petitioner, vs. THE HONORABLE RICHARD K. PERKINS, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI#I, Respondent. ORIGINAL PROCEEDING (CR. NO. 08-1-0869) ORDER (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner Michael C. Tierney and the papers in support, it appears that petitioner is represented by appointed counsel in appellate case No. 29993 inasmuch as the circuit court’s May 22, 2009 order appointing counsel in Cr. No. 08-1- 0869 appointed counsel for petitioner for purposes of sentencing and for appeal. Therefore, IT IS HEREBY ORDERED that the clerk of the appellate court shall process the 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. DATED: Honolulu, Hawai#i, December 3, 2009.
2a1775d5f00021451d95b1050b7ceb39e12f8c32ee9783fea01e054d72e9d2ee
2009-07-07T00:00:00Z
51ff758a-985f-46a5-ae4f-1dbdd7505fdc
State v. Denis-Silva
null
null
hawaii
Hawaii Supreme Court
No. 29613 IN THE SUPREME COURT OF THE STATE OF HAWAT STATE OF HAWAI'I, Respondent /Plaintif£-Appellee, b a VICTORIA LEE DENTS-STLVA, Petitioner /Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 08-1-0233K) ORDER DISNISSING APPLICATION FOR WRIT OF CERTIORARI (By: Moon, C.J., for the court") Petitioner/defendant-appellant Victoria Lee Denis- Silva's application for a writ certiorari, filed on August 13, 2009, seeks review of a circuit court order filed on December 31, 2008 in Cr. No. 08-1-133K. The December 31, 2008 order of the circuit court is not reviewable by the supreme court by application for a writ of certiorari, See HRS § 602-59(a) (Supp. 2008). Therefore, IT IS HEREBY ORDERED that the application for a writ of certiorari is dismissed DATED: Honolulu, Hawai'i, August 27, 2009. FOR THE COURT: Me gustice considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenvald, ws,
d11d746f5ab08b0ee80269d5498f64c22717d6cbcebe6dfecb4f7fd1e5344f6d
2009-08-27T00:00:00Z
243fef17-82bb-4ed3-8269-195455e59a73
In re Conservatorship and Guardianship of Naito
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 26118 IN THE SUPREME COURT OF THE STATE OF HAW IN THE MATTER OF THE CONSERVATORSH: “ GUARDIANSHIP OF GENEVIEVE FERNANDEZ NAITO: ams CERTIORARI TO THE INTERMEDIATE COURT OF APPEA (enc. NO. 06-1-0007) 3 (By: Duffy, J., for the court") Petitioner/Appellant Pat L. Mulvey’s application for a weit of certiorari, f1led on June 12, 2009, 1s hereby rejected. Honcluts, Hawai'i, guly 21, 2009. FOR THE COURT: err Con 6 Bide + (,, SEAL * rassciate sunice Oh DATED: Pat L. Mulvey, petitioner/appellant, on the application pro se Moon, C.J. Nakayama, Acoba, and Duffy, JJ., and ‘Sey recused ‘of Reckeonwald, chreuie duuge Alm, in pla:
8c7e8d2912139cc808afea57d0e81b054c1c0d066aa05a03284b94e714cb6dcc
2009-07-21T00:00:00Z
ae29229c-54f0-494a-ac82-25de7f59a95d
Shelton v. Chan
null
null
hawaii
Hawaii Supreme Court
LAW LIBRARY No. 29974 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T WANDA SHELTON, Petitioner, THE HONORABLE DERRICK H.M. CHAN, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I; and KAISER FOUNDATION HEALTH PZAN, INC., Respondents. SE ORIGINAL PROCEEDING (S.P. NO. 09-1-0025) | 60a ORDER al (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and Intermediate Court of Appeals Judge Fujise, in place of Recktenwald, J., recused) MHZ Hd 9259 Upon consideration of the petition for a writ of mandamus filed by petitioner Wanda Shelton and the papers in support, it appears that the notice of removal filed by petitioner in the Hawai't federal district court pursuant to 28 U.S.C. § 1446 (a) was the Notice of Removal filed on July 7, 2003 as Civil No. 09-00309 SOM/LEK. Petitioner did not file a copy of that notice in $.P. No. 09-1-0025 pursuant to 26 U.S.C. $ 1446(d). Tt further appears that petitioner can move, in S.P. No. 09-1-0025, for the disqualification of the respondent judge and for the dismissal of the motion to compel arbitration. Therefore, petitioner is not entitled to mandamus relief. see Kema_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 a lack of alternative means to redress adequately the alleged wrong or ob the quested action.). Accordingly, IT IS HERI SY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai’ August 26, 2009. a——~ Goa «: Dey Beewas OP Fi —
d5beba2b8c3022b06f2fab1f19a23bbf39295a75367043652e2dd3ce87c32419
2009-08-26T00:00:00Z