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Hugging Face for Legal 144

b2cd7a80-1c32-4d92-bfb8-364c78790ff5

Tierney v. District Court of the First Circuit, State of Hawaii.

hawaii

Hawaii Supreme Court

No. 29904 MICHAEL C. TIERNEY, Petitioner, & DISTRICT COURT OF THE FiRsT cracurt, | = = ORIGINAL PROCEEDING (By: Moony Ges) Nakayana, Resea, Bufty, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner Michael C. Tierney and the papers in eupport, it appears that petitioner submitted to the district court of the first circuit, pursuant to HAS § 604-10.5 (Supp. 2008), a Petition for Ex Parte Temporary Restraining Order and for Injunction Against Harassment (petition). The district court upon receipt and review of the petition -- struck the petition without filing and returned it to petitioner. Petitioner seeks a writ of mandamus directing the district court to file the petition. A writ of mandamus will issue where a petitioner demonstrates a cl © and indisputable right to relief and a lack of other means to redress adequately the alleged wrong or obtain ted action. Kema v, Gaddia, 91 Hawai'i 200, 204, 982 lief is available to compel an the requ P.2d 334, 338 (1999), Mandamus 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, aa and no other remedy is available. In Re Disciplinary Bd. of Hawaii Suprene Court, 91 Hawai'i 363, 368, 984 P.24 688, 693 (1999), citing Barnett v, Broderick, 84 Hawai'i 109, 111, 929 P.2d 1359, 1361 (1996). Petitioner has an indisputable right to have his petition for temporary restraining order filed. gee DCRCP S(e) (Any other rule to the contrary notwithstanding, the clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper fozm[. The filing of the petition is a ministerial duty of the district court. The district court struck the petition without filing and returned it to petitioner. Petitioner has no remedy other than mandamus. Therefore, IT 18 HEREBY ORDERED that the clerk of the appellate court shall process the petition for writ of mandamus without Payment of the filing fee. 17 18 FURTHER ORDERED that the petition for writ of mandamus is granted as follows: 1. ‘The clerk of the appellate court shall forthwith transmit to the District Court of the First Circuit, Honolulu Division, the papers enclosed with the petition for writ of mandamus, to wit: (1) Petition for Ex Parte Temporary Restraining Order and for Injunction Against Har: sment; (2) Return of Service; (3) Ex Parte Application for Relief from Costs; and (4) district court Form 10-P-985. Division, forthvith order and 2. The District Court of the First Circuit, Honolulu upon receipt of ¢ 1e aforementioned papers, shall file the Petition for Ex Parte Temporary Restraining for Injunction Against Harassment. Dated: Honolulu, Haw » duly 8, 2008. Grrr Becta OS rtutiay ine aL Gane Dele + Pia 2. Meet benef 

d684b2617fc18239491a2dacab04545857cbe5a9999f4f16e1ecc15b0e6b93a1

2009-07-08T00:00:00Z

f3eddc46-3a28-418a-88ee-b40346f06679

State v. Johnson

hawaii

Hawaii Supreme Court

*** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** The Honorable Paula Devens presided. 1 HRS § 291C-105 mandates, in pertinent part: (a) No person shall drive a motor vehicle at a speed exceeding: (1) The applicable state or county speed limit by thirty miles per hour or more; or (2) Eighty miles per hour or more irrespective of the applicable state or county speed limit. 2 NO. 29100 IN THE SUPREME COURT OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Respondent-Plaintiff-Appellee, vs. KESEAN JOHNSON, Petitioner-Defendant-Appellant. APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (HPD TRAFFIC NO. 1DTC-07-060926) SUMMARY DISPOSITION ORDER (By: Moon, C.J., Nakayama, and Duffy, JJ., Circuit Judge Crandall in place of Recktenwald, J., recused, and Acoba, J., concurring separately) Petitioner-Defendant-Appellant Kesean Johnson (“Johnson”) petitions this court to review the Intermediate Court of Appeals’ (“ICA’s”) April 15, 2009 judgment on appeal. The ICA’s judgment was entered pursuant to the court’s March 31, 2009 summary disposition order affirming the District Court of the First Circuit’s (“trial court’s”)1 March 12, 2008 judgment convicting Johnson of the offense of excessive speeding, in violation of Hawai#i Revised Statutes (HRS) § 291C-105(a)(1) and/or (a)(2) (Supp. 2006).2 In his application for writ of *** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** See State v. Assaye, 112 Hawai#i 204, ___, 216 P.3d 1227, 1233-37 3 (2009); see also State v. Manewa, 115 Hawai#i 343, 353-56, 167 P.3d 336, 346- 49 (2007). 2 certiorari before this court, Johnson asserts that the ICA gravely erred (1) “in concluding that [Respondent-Appellee- Plaintiff, State of Hawai#i (“prosecution”),] laid the requisite foundation for the admissibility of the laser gun reading pursuant to State v. Stoa, 112 Hawai#i 260, 265, 145 P.3d 803, 808 (App. 2006),” and (2) “by failing to recognize that the [prosecution] did not lay the requisite foundation for admissibility of the laser gun reading as required by State v. Wallace, 80 Hawai#i 382, 910 P.2d 695 (1996), and State v. Manewa, 115 Hawai#i 343, 167 P.2d 336 (2007).” Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we hold that: (1) proof that the “LTI 2020 laser gun” (“laser gun”) was tested according to manufacturer recommended procedures is required to establish a sufficient foundation for the speed reading given by the same laser gun, which was not adduced in this case;3 (2) the prosecution did not establish whether Honolulu Police Officer Clarence Clites (“Officer Clites”) was qualified by training and experience to operate the laser gun because it was not shown whether the nature and extent of Officer Clites’ training in the operation of the laser gun met the requirements indicated by the *** NOT FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER *** See Assaye, 112 Hawai#i at ___, 216 P.3d at 1237-39; 4 see also State v. Mitchell, 94 Hawai#i 388, 398, 15 P.3d 314, 324 (App. 2000); State v. Ito, 90 Hawai#i 225, 244, 978 P.2d 191, 210 (App. 1999). See Assaye, 112 Hawai#i at ___, 216 P.3d at 1239; see also HRS § 5 291C-105(a). See Assaye, 112 Hawai#i at ___, 216 P.3d at 1239; see also Manewa, 6 115 Hawai#i at 358, 167 P.3d at 351. 3 manufacturer;4 and (3) inasmuch as the prosecution did not provide a sufficient foundation for the admission of Officer Clites’ testimony regarding the speed reading given by the laser gun, and there being no other evidence to indicate the speed that Johnson was traveling at in the afternoon of June 25, 2007, the record in this case is devoid of any evidence of the required speed reading, which is a material element of the offense charged.5 Consequently, the prosecution has not adduced sufficient evidence to prove every element of the offense charged beyond a reasonable doubt.6 Therefore, IT IS HEREBY ORDERED that the circuit court’s March 12, 2008 judgment is reversed. DATED: Honolulu, Hawai#i, December 11, 2009. James S. Tabe, Deputy Public Defender, for Petitioner-Defendant- Appellant Kesean Johnson on the application Brian R. Vincent, Deputy Prosecuting Attorney, for Respondent-Plaintiff- Appellee State of Hawai#i

4ff719ad62664a86fbd670eb655e742c7b961bda3cf82b29ee77b59bf001e565

2009-07-16T00:00:00Z

8a4b784c-2fea-4535-aa46-302ad6254c5e

Eline v. Department of Public Safety, State of Hawaii

29883

hawaii

Hawaii Supreme Court

ay No, 29883 IN THE SUPREME COURT OF THE STATE OF RAWAT’: & RICHARD ELINE, Petitioner, > a “920K L DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAI'I, Res; neni OOOO ORIGINAL PROCEEDING ORDER Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner Richard Eline, it appears that petitioner fails to demonstrate a clear and indisputable right to relief and 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 a lack of alternative means to redress adequately the alleged wrong or obtain the requested action.). Accordingly, I 18 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 1S FURTHER ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, July 7, 2009. ren Seca 6 etyare (PN Comm €.1Detye fe TNE. Mehiteut/ UBRARY aa 

a93c00050573fff8661bf53651625bbce11719e71f10bf6127926c082597f1ed

2009-07-07T00:00:00Z

87e4f06c-15b0-483d-be23-dbb242267a5f

Estate of Roxas v. Marcos. ICA Opinion, filed 02/12/2009 [pdf], 120 Haw. 123. Concurring Opinion by J. Leonard [pdf]. Dissenting Opinion by J. Nakamura [pdf]. ICA Order Denying Motion for Reconsideration of Opinion, filed 03/02/2009 [pdf]. Application for Writ of Certiorari, filed 03/31/2009. S.Ct. Order Accepting Application for Writ of Certiorari, filed 05/06/2009 [pdf].

121 Haw. 59

hawaii

Hawaii Supreme Court

FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** UPREME COURT OF THE STATE OF HAWAT ESTATE OF ROGER ROKAS; and THE GOLDEN BUDHA CORPORATION, a foreign corporation, Petitioners/Plaintifts-Appellges, a INELDA MARCOS, Respondent/Defendant-Aappeliant; = SE Soe oF ana Be FERDINAND MARCOS, Defendant. 3 wo. 28702 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO, 88-0522-02) AUGUST 10, 2009 C.J., NAKAYAMA, AND DUFFY, JJ. 3, RECUSED, IN PLACE OF ACOBA, Moon, ASSIGNED BY REASON OF VACANCY CIRCUIT JUDGE DEL” ROSARIO, ‘AND CIRCUIT JUDGE POLLACK, oe: RY BY NAL Petitioners/Plaintiffs-Appellees The Estate of Roger Roxas and The Golden Budha Corporation ("GEC") (collectively, “petitioners") petition this court to review the Intermediate ("ICA's") March 5, 2009 judgment on appeal. court of Appeals’ ‘The ICA's judgment was entered pursuant to its February 12, 2009 published opinion,’ Estate of Roxas v, Marcos (“Roxas II”), 120 (App. 2009), which reversed Hawai'i 123, 126, 202 P.3d 584, 587 ‘The opinion was authored by Associate Judge Daniel R, Foley, with ‘Leonard concurring separately. Associate Judge Associate Judge Kathe: Graig #. Nekamora wrote @ dissenting opinica.  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER the firet circuit court's ("circuit court's”)? July 24, 2007 order grant 1g Pet: loners’ two May 8, 2007 motions to extend the second and fourth amended judgments. The ICA held that the circuit court erred in extending the Plaintiffs’ second and fourth amended judgments because, under Hawai'i Revised Statute (“HRS”) § 657-5 (2006),? “the August 28, 1996 [Judgment is the ‘original judgment’ for purposes of this case and the limitation period for an extension commenced on its August 28, 1996 entry date.” Roxas II, 120 Hawai'i at 126, 202 P.3d at 587. We accepted Petitioners’ application for a writ of certiorari, and oral argument was held on June 4, 2009. Petitioners assert that the ICA gravely erred by interpreting “original judgment” of HRS § 657-5 as the “first judgment rendered by a court.” Id, at 126, 202 P.3d at 587. ‘They argue that this construction creates “an unreasonable result in cases in which more than one judgment is entered between different parties or as to different claims.” Petitioners ‘The Honorable Karen 3, 5. Abn presided > RS § 657-5 provides: Uniess an extension is granted, every judgment and decree of any court of the State shall be presumed to be paid and discharged at the expiration of ten years after the judgment or decree wi fendered, No action shall be commenced after the expiration of ten years from the date a judgnent or decree was rendered oF cntended, Noveatension of a judanent cr decree shail be azanted unless the extension is sought within ten vears of the date she Siginal iudanect or decree was rendered. A court shall noe extend any judgnent oF decree Bayona twenty years from the aate of the original Judgnent or decree.” No extension shall be granted hithout notice and che filing of @ nonchearing notion axa hearing motion to extend the life of the judgment or decree. (Emphasis added.) IBLICATION IN WEST'S HA\ maintain that the limitations period on extending a judgment is ten years from the date that the judgment to be extended was firet entered. We hold that the “original judgment” of HRS § 657-5 refers to the judgment that creates the rights and responsibilities seeking to be extended, and, therefore, the circuit court did not err in extending the second and fourth amended judgments. Nevertheless, the circuit court erred when i extended the fourth amended judgment until September 5, 2021, because that date is beyond twenty years of the “original judgment,” entered on June 26, 2000. Accordingly, we (1) vacate the ICA’s March 5, 2009 judgment, (2) vacate the circuit court's July 24, 2007 order, to the extent that it granted Petitioners’ motion to extend the fourth amended judgment until September 5, 2021, and (3) remand this case to the circuit court for further proceedings consistent with this opinion. 1. BACKGROUND A. Factual History On January 24, 1971, Roger Roxas ("Roxas") discovered the legendary “Yamashita Treasure,” which, among other things, consisted of a gold-colored buddha statue and bars of gold. Roxas vi Marcos (“Roxas 1”), 89 Hawai'i 91, 100-1, 969 P.2d 1209, 1218-19 (1998).* Subsequently, on April 5, 1971, under the direction of Ferdinand Marcos, individuals claiming to be from . X provides a more detailed description of the background facts established at trial. See Roxas f, 68 Hawai’ at 100-108, 969 F.2d at 1218-1227  HAWAII REPORTS AND PACTE ‘OR PUBLICATION IN W1 two Philippine national security agencies, knocked on Roxas’ s door, claiming to have a search warrant for his house. Id, at 102, 969 P.2d at 1220, The men broke Roxas’s windows, pointed the barrels of their rifles inside, and threatened to shoot him Af he did not open the door. Id. Roxas opened the door, and the men beat Roxas’s brother and ordered his family and two bodyguards to lie down on the floor. Id, The men stole the buddha, the diamonds, seventeen bars of gold, samurai swords, a piggy bank belonging to Roxas’s children, and his wife's coin collection, Id. Subsequently, on May 18, 1971, Roxas was arrested and tortured for information about his treasure. Id, at 103, 969 P.2d at 1221. He was kept in a room for two weeks, and he was forced to sign an affidavit declaring that the raid in his house had been performed “in a peaceful manner.” Id. Roxas eventually escaped. Id. In late 1974, Ferdinand Marcos and his aides and generals, as well as Inelda Marcos’ personal security, sought the services of Robert Curtis, an American who owned a mining company, Id, at 105-06, 969 P.2d at 1223-24, They asked Curtis to resmelt gold bars that Ferdinand Marcos claimed were from the Yenashite Treasure. Id, Curtis testified that he entered = room “tabout roughly 40 by 40,’ stacked to the ceiling with bars of gold,” and also saw the solid gold buddha statue that Roxas had discovered. Id. On June 3, 1986, Roxas assigned all of his rights to the Yamashita Treasure to GBC, in exchange for a minority holding  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** of non-voting shares. Id. at 107, 969 ®.2d at 1225. B. Judgment And Amended Judgment on February 19, 1988, Roxas and GBC filed a lawsuit against Ferdinand and Imelda Marcos. Id at 109, 969 P.2d at 1227. Roxas asserted claims of false inprisonment and battery against Ferdinand Marcos. Id, GBC asserted clains against Ferdinand and Inelda Marcos for conversion, constructive trust, and fraudulent conveyances. 1 During the litigation, on September 29, 1989, Ferdinand Marcos died, and the parties subsequently stipulated to substitute Inelda Marcos as his estate’s personal representative. Id, In 1993, during the litigation, Roxas also died, and the circuit court granted a motion to substitute Felix Dacanay ("Dacanay"), personal representative of the Roxas Estate, for Roxas as a party plaintiff. Ide Pursuant to a July 13, 1996 jury verdict, the circuit court filed 2 judgment on August 28, 1996 ("first-in-tine judgment”) (1) in favor of Dacanay, as personal representative of the Estate of Roger Roxas and against Ferdinand Marcos on the battery and false imprisonment clains, (2) in favor of GBC and against Ferdinand Marcos on the conversion claim, and (3) in favor of Imelda Marcos, in her individual capacity, and against Petitioners on all claims they asserted against her. Id. at 114, 969 P.2d at 1232. The circuit court filed an amended judgment on October 21, 1996 ("Amended Judgment”), pursuant to Petitioners’ request to correct the first-in-! © judgment by “add{ing] the ‘Estate of  {++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, Ferdinand Marcos’ as a proper party defendant.” Id, at 114-15, 969 P.2d at 1232-33. Pursuant to the circuit court's prior substitution of Imelda Marcos as a representative for the Estate of Ferdinand Marcos, the court filed an Amended Judgment against “Defendant Imelda Marcos, as Personal Representative of the Estate of Ferdinand Marcos,” (1) in favor of Dacanay, as personal representative of the Estate of Roger Roxas, in the anount of $6 million in damages for battery and false imprisonment, and (2) in favor of GBC, in the amount of over $22 billion for conversion. . The 1998 Roxas X Decision Inelda Marcos, “in her alleged capacity as personal representative of the Marcos Estate,” appealed from the Amended Judgment, arguing that the court erred by amending the judgment against her as “personal representative” of the Marcos Estate, where she was substituted as “the representative of Defendant Ferdinand Marcos deceased.” Id, at 99, 117, 969 .2¢ at 1217, 1235. Petitioners cross-appealed. Id. at 99, 969 P.2d at 1217. This court issued Roxas I on November 17, 1998, affirming, reversing, and vacating and remanding parte of the Amended Judgment. Id, at 157, 969 P.2d at 1275. We held, among other things, that generally, “an heir of an undistributed estate, who has not been judicially appointed as the personal representative of a decedent’s estate, is not = ‘proper party’ for substitution pursuant to [Hawai'i Rules of Civil Procedure (HRCP")) Rule 25(a)(1)." Ide at 122, 969 P.2d at 1240. We noted that Petitioners did not establish that Imelda Marcos was appointed as the personal representative of the Marcos Estate,  FOR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER and, therefore, Imelda Marcos did not bind the Marcos Estate to the Judgment. Id, at 122 n,18, 126, 969 P.2d at 1240 n.18, 1248. ie ruled, however, that Imelda Marcos deceived the court into permitting her to represent Ferdinand Narcos, and, that an ord judieie! to achieve justice consistent with the doctrine of hota tent of he: nincaat in the aussts-of the Marsce Estate, for the anount of the Blaintiffs-appeliees” Judgnent against Ferdinand (Marcos), a= that Snount has been modified according to this opinion. Id. at 126, 969 2.20 at 1244 (emphasis added). We vacated the portion of the circuit court's Amended Judgment entered against “efendant Inelda Marcos, as Personal Representative of the Estate of Ferdinand Marcos” with respect to the (Petitioners’) battery, false imprisonment, and conversion claims, and remanded for entry of judgment as to those claims against “Imelda [Marcos], in her personal capacity, to the extent of her interest in the Marcos Estate.” Id, at 126-27, 969 P.2d at 1244-45. Further, Roxas I (1) reversed that part of the Amended Judgment avarding GBC $22 billion for “one storage area” of gold bullion, (2) vacated the portion of the Amended Judgment awarding Gac $1.4 million in damages for conversion of the golden buddha statue and the seventeen gold bars, and entering judgment in favor of Imelda Marcos and against Petitioners on GBC’s claim for constructive trust, and (3) remanded for ({a1) a new trial on the value of the converted golden buddha ue and seventeen gold bars, ((b]} an award of prejudgment .stSn"the dazages awarded a2 2 consequence of the conversion fe golden buddha and seventeen gold bars, commencing trex the Gate corresponding to the value of the gold Sesignea by the sur; and ({2]) furtner proceedings, to the extent necessary, on GBC's equitable claim agsinst Imelda, in her personal capacity, for Id. at 157, 969 P.2d at 1275. #17 FOR PUBLI D. Second, Third, And Fourth Anended Judgments on October 18, 1999, the circuit court filed a second amended judgment ("Second Amended Judgment") pursuant to Roxas I. In pertinent part, the Second Amended Judgnent granted judgment “in favor of (Dacanay,] as personal representative of the estate of Roger Roxas in the amount of $6 million in general damages for false imprisonment and battery against Imelda Marcos in her personal capacity, to the extent of her interest in the Marcos Estate." It also stated that the “judgment is entered nune pro tune as of October 21, 1996," the date of the Amended Judgment. on February 28, 2000, the circuit court held a bench trial on the issue of damages for conversion. ‘The court filed a third amended judgment (“Third Anended Judgment”) on June 26, 2000, amending the Second Amended Judgment’s sixth paragraph stating that the court retained jurisdiction over GEC's conversion claims. The Third Amended Judgment awarded GEC over $13 million in damages and prejudgment interest (calculated from the highest value of gold until the date of the Amended Judgment) against “Imelda Marcos in her personal capacity, to the extent of her interest in the Marcos Estate,” for conversion of the gold buddha and seventeen small bars of gold. The Third Anended Judgment was entered nunc pro tunc as of October 21, 1996, the date of the Anended Judgment. The parties appealed the Third Amended Judgment to this court, but the appeal and cross-appeal were dismissed for lack of jurisdiction. In an order dated March 21, 2001, we ruled that the Third Amended Judgment s** FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *** dia not meet the certification requirements of BRCP (Rule) $4{b) land the judgment is not an appeslable final Judgment on the for conversion. ee NRCP [Rule] 84(B) ("(T)Re court may direct ERE chery of a finest juagment a2 to one or nore but fewer than all. ‘the claime or parties only upon an express determination th: there is no just reason for delay and upen direction for the ef 3. judgment Further, we noted that the Amended Judgnent’s certification was “effective only as to those claims certified as final on October 21, 1996 and not to claims subsequently decided by the (Second and Third Amended Judgments), even though those judgments were entered nunc pro tunc to October 21, 1996.” ‘The circuit court filed a fourth amended judgment ("Fourth Amended Judgment”) on Septenber 6, 2001, which amended the Third Amended Judgnent by stating: “The court expressly determines that there is no just reason for delay and expressly directs for the entry of judgment.” This judgment was also entered nunc pro tune as of October 21, 1996,” the date of the Amended Judgment. All parties appealed from the Fourth Amended Judgment. In a summary disposition order dated November 30, 2005, this court affirmed the Fourth Amended Judgment. E. Motions To Extend Second and Fourth Amended Judgments on May 8, 2007, Petitioners filed motions to extend the Second Amended Judgment (filed on October 18, 1999) and Fourth Amended Judgment (filed on September 6, 2001) for an additional ten-year period. Imelda Marcos objected, arguing that an extension was precluded under HRS § 657-5, which requires that the extension “is sought within ten years of the date the original judgment or decree was rendered.” She asserted that the “original judgment” was rendered in 1996, and that, therefore, {++ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER *** the subject motions, filed more than ten years after that date, on May @, 2007, were untimely. in response, Petitioners argued that the 1996 judgment ceased to exist due to Roxas I vacating the Amended Judgment and remanding the case. Moreover, they pointed out that the Second and Fourth Amended Judgments are against a “new and differest party defendant” from the first-in- tine doment. on July 24, 2007, the circuit court granted Petitioners’ motions to extend the Second and Fourth Amended Judgments. The court ruled that “[a] vacation or reversal extinguishes a judgment,” and noted that Roxas I reversed, affirmed, vacated, and remanded differing portions of the first- in-time judgment. Furthermore, the court stated that HRS § 657- 5's term “original judgment” is “plain and unambiguous” and “reflect [s] the legislature’s intent to distinguish within [HRS] § 657-5 a judgment which has been extended from an initial judgment and thus make clear that a [s]tate [c]ourt judgment may enjoy but one extension.” The court ruled that the “entry of final judgment should mark the beginning of the Limitations period," and, therefore, Petitioners’ ten-year period to extend the judgments had not expized. The court ordered that the Second Amended Judgnent (filed on October 18, 1999) extend until October 17, 2019, and that the Fourth Amended Judgment (filed on Septenber 6, 2001) extend until September 5, 2021. on August 22, 2007, Imelda Marcos filed a timely notice of appeal. 10  F. Roxas If Reversing The Circuit Court! s Order on appeal, Inelda Narcos argued that the “original judgment was rendered in 1996, and that, under HRS § 657-5, Petitioners’ May 8, 2007 motions to extend the Second and Fourth Judgments were untimely. Imelda Marcos contended that “original judgment” does not mean “final judgment after appeal,” or “amended judgment,” inasmuch as “original” refers to the “first stage of existence” or “the first form.” Finally, she contended that the motions were untimely because, even if the Second and Fourth Amended Judgments were the starting point for extending the judgments, they were entered nunc pro tune “as of October 21, 1996," and “relate[d) back to October 21, 1996, ‘as if the judgment {s] had been rendered on that date.’” (Quoting Keahole v. Board of 110 Haw. 419, 431, 134 P.3d 585, 597 (2006). Petitioners, on the other hand, argued that under HRS 657-5, the “ten-year statute of limitations on judgments{] can be extended for an additional ten years 1f application for an extension is made before the original ten years has run.” Because Roxas I vacated the Amended Judgment (filed in 1996), the Amended Judgment “is no longer a valid and existing judgnent.” Accordingly, they argued, their motions to extend the Second and Fourth Amended Judgnents (entered on October 1, 1999 and Septenber 6, 2001), which were filed within ten years of those judgments, were timely. Moreover, they contended that the fact that the amended judgments were entered nunc pro tune “has no effect on when the statute of Limitations period begins to run,” cy  ‘+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER because the judgnes Were not actually awarded until actually filed. In a February 12, 2009 published opinion, the ICA held that the circuit court erred in extending Petitioners’ Second and Fourth Amended Judgments. Roxas II, 120 Hawai'i at 126-27, 202 P.3d at 587-88. Based on the “ordinary use” of the word “original,” the ICA ruled that the “‘toriginal judgment’ logically at 126, refers to the first judgment rendered by a court.'” Ide 202 P.3d at 587. It concluded that “the August 28, 1996 judgment is the ‘original judgment’ for purposes of this case and the Limitation period for an extension commenced on its August 28, 1996 entry date.” Id, at 126, 202 F.3d at 587. Under this interpretation of HRS $ 657-5, Petitioners’ motions to extend the Second and Fourth Judgments were untimely and the ICA reversed the cireuit court’s orders. Id. at 127, 202 P.3d at 588. Associate Judge Katherine G. Leonard wrote @ concurring opinion emphasizing that “parties and the courts are best served by the clear, plain understanding that, under HRS § 657-5, the original judgment in any case is the first judgment entered.” Id, at 128, 202 P.2d at $89 (Leonard, J., concurring). she further asserted that (1) Roxas I did not extinguish the first~ in-time judgment, (2) the nunc pro tune judgments “shall have the same legal force and effect” as if done at the 1996 date, and (3) extending the 1ife of any final judgnent that is amended by, before, or after an appeal would “eliminate the quality or state of originality from the term original judgment.” Id. at 127-28, 202 P.3d at 588-89 (Leonard, J., concurring). 12  {++ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER Associate Judge Craig H. Nakamura dissented, reasoning that, “original judgment” as used in HRS § 657-5 means “the first enforceable judgment that has not been vacated or extinguished.” Id at 129, 202 P.3d at 590 (Nakamura, J., dissenting). In his view, Roxas I “effectively extinguished the prior judgments entered by the circuit court by changing the party against whom the monetary awarde could be enforced." Id. Judge Nakamura noted that the Second Amended Judgment was the first judgment entered against Imelda Marcos in a personal capacity, but posited that, because the Second and Third Amended Judgments did not “contain{] the certification required by HRCP Rule 54(b) to make 4 judgment rendered on fewer than all of the claims or parties a final judgment," they were not “enforceable” and thus, not “rendered” under HRS § 657-5. Id. at 134, 202 P.3d at 595 (Nakamura, J., dissenting). Judge Nakamura’s dissent explained that the original judgment was only rendered when the Fourth Amended Judgnent was issued, inasmuch as it satisfied the HRC Rule S4(b) certification requirements. Id. Moreover, Judge Nakamura argued that the entry of the Second, Third, and Fourth Amended Judgments nunc Eo tune as of October 21, 1996 “was a ‘fiction of law’ and did not change the date they actually becane enforceable,” September 6, 2001. Id. at 135, 202 P.3d at 596 (Nakamura, J., dissenting). ‘he ICA filed a judament on appeal on March 5, 2009. Petitioners filed an application for a writ of certiorari on March 31, 2009. Imelda Marcos filed a response to the application on April 15, 2008. 1B  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 32, STANDARD OF REVIEW othe interpretation of a statute is a question of law reviewable de nove.” Capua v, Weyerhaeuser Co,, 117 Hawai'i 439, 443, 184 P.3d 191, 196 (2008) (citing Flor v, Holguin, 94 Hawai'i 70, 16, 9 P.3d 382, 388 (2000)) (brackets, citations, and ellipses omitted). statutory construction is guided by the following rules: First, the fundamental starting point for statutory Interpretation se the Language of the statute itself. Second, where the statutory Language 1s plain and nanbiguous, oor sole duty is ts give effect to its plain ind obvious meaning. Thifd, implicit in the task of Statutory construction 12 our foremost obligation to Abcertain and give effect to the intention of the Legislature, which 12 to be obtained primarily from the Language contained in the statute itself. Fourth, when there Ss dubt, doubleness of meaning, of indistinct veness Sr uncertainty of an expression used ina statute, an Gnbiguity exists. "And fifth, in construing an ambiguous Statute, the meaning of the ambiguous words may be sought by Granining the context, with which the esbiguous words, Phrases, and sestences nay be compared, in order to Recertain their true meaning Carlisle v. one (1) Boat, 119 Hawai'i 245, 256, 195 P.3d 1177, 1188 (2008) (quoting In _xe Contested Case Hearing op Water Use Permit Application, 116 Hawai'i 481, 489-90, 174 P.3d 320, 328-29 (2007)) (block quotation format altered). IIT, DIScussroN Plain Language of HRS § 657-5 HRS § 657-5 ia a “[etatute of limitations) that applies to actions seeking enforcement of domestic judgments and decrees.” Brooks vs Minn, 73 Haw. 566, 575, 836 2.24 1081, 1086 14  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 992) (referring to HRS § 657-5 (1985)).? The issue in this case, determining whether the ICA gravely erred by reversing the trial court’s order granting Petitioners’ motions to extend the Second and Fourth Amended Judgments, depends on when the Limitations on the extension of these judgnents began to run In intexpreting HRS § 657-5, we first look to the language of the statute. See One (1) Boat, 119 Hawai'i at 256, 195 P.3d at 1188 (citation omitted). HRS § 657-5 provides: Oniess an extension is granted, every Judgment and decree of any Court of the State shal! be presimed to be paid and sischarged at the expiration of ten years after the judgnent oF decree was fendered. "Ro action shall be commenced after the expiration of ten years from the date a judgnent or decree was rendered oF Sxtended, Noveatension of 2 qudament or decree shall be granted unless the extension is sought within ten veare of the date the at iuanent R court ahali noe Satend any judgrent oF decree beyond treaty years fron the aate of the original Judgment or decree. No extension shall be granted without notice and the filing of a non-hearing action or a hearing otion to extend the Life of the judgment or decree. (Emphasis added.) Although the statute precludes a court from extending a judgment where the extension is sought more than ten years after “the original judgment . . . was rendered,” the term “original judgment” is not entirely clear. As we have explained, when a “term is not statutorily defined, this court may resort to legal or other well accepted dictionaries as one way to determine its ordinary meaning.” Gillan _v, Gov't Employees ins, Co., 119 Hawai'i 109, 115, 194 * tn 1985, HRS § 657-5 stated: Every judgrant and decree of any court of record of the state shell be presumed to be paid and discharged at the expiration of ten years after the Judgment of decree was rendered, and no action shall be commenced thereon after the expiration of ten years after The jusoment oF decree was rendered. 15 {16 FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ** P.3d 1071, 1077 (2008) (citations, brackets, and internal quotation marks omitted), Accordingly, the ICA looked to the dictionary definition of “original” and ruled that “ ‘original judgment’ logically refers to the first judgment rendered by a court.” Roxas Il, 120 Hawai'i at 126, 202 P.3d at $87 (citing Webster's Encyclopedic Unabridged Dictionary of the English Language 1015 (1989). Ruling that a motion to extend any judgment must be filed within ten years of the date of the first-in-time judgment would provide substantially more rights to a first-in-tine judgment than a subsequent judgment. Under this rule, a first- in-time judgment is valid for ten years and may be extended for an additional ten year period, thus being able to be enforced for a maximum of twenty years. In contrast, a judgment rendered subsequent to the first-i ‘time judgnent would be afforded less than twenty years to enforce the judgment. In fact, a judgrent that is rendered ten or more years after the first-in-tine judgment could not be extended and would only be enforceable a maximum of ten years. It ie true that there is no court rule or constitutional right to extend every judgment. Nevertheless, if We were to construe the “original judgment,” as the first-in-time judgnent, it would “produce an absurd and unjust result, . . clearly inconsistent with the purposes and policies of the statute.” State v. Lagat, 97 Hawai'i 492, 499, 40 P.3d 894, 902 (2002) (quoting State v. Villeza, 85 Hawai'i 258, 272-73, 942 P.2d 522, 534-35 (1997)) (block formatting altered). It is well- 16  {+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER established that “departure from a literal construction of a statute ‘ie justified when such construction would produce an absurd . . . result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act.'” Richardson v. City and County of Honolulu, 76 Hawai'i 46, 60, 668 P.2d 1193, 1207 (1994) (quoting Exanks v. City and County of Honolulu, 74 Haw. 328, 341, 843 P.2d 668, 674 (1993))+ see also HRS § 1-15 (1993) (“Where the words of a law are ambiguous[,] . . . (elvery construction which leads to fan absurdity shall be rejected.”); Flores v. Rawlings Co., LLC, 117 Hawad't 153, 164, 177 P.34 341, 352 (2008) (**(T]he legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality [.]"" (quoting Beneficial Hawai'i, Inc. v. Kida, 96 Hawai'i 289, 309, 30 P.ad 995, 914-15 (2001)); State v, Gomes, 117 Hawai" 218, 232, 177 P.3d 928, 942 (2008) (Nakayama, J., dissenting) (**[E]ven where there is no ambiguity, a departure from the Literal application of statutory Language will be justified if such literal application will lead to absurd consequences[,]’ for *{s|tatutory language must be read in the context of the entire statute, and the harm or evil it seeks to prevent must point the way to its construction.'” (quoting State v. Ogata, 58 Haw. 514, 518, 572 P.2d 1222, 1225 (1977). Holding that the first-in-time judgment controls the statute of limitations for subsequent judgments would produce an absurd result when the first-in-time judgment does not address or a  FOR PUBLICATIO’ HAWAII REPORTS AND PACIFIC REPORTER wes resolve any of the claims ruled on by the subsequent judgment. As Petitioners point out, a firet-in-time interpretation would mean that the statute of limitations for extending judgments would begin at the date of entry of the first-in-time judgment, even if it is not “in his name,” “on his claim," or “against the party against whom he seeks to enforce his own judgment." This would arbitrarily confer more rights on the party that obtained the first-in-time judgment than a party in a subsequent judgment. In addition, the term “Judgment,” as used throughout HRS § 657-5, must refer to a valid and enforceable judgment. Although the statute states that “every judgment . . . shall be presumed to be paid and discharged at the expiration of ten years after the judgment . . . was rendered” (emphasis added), the presumption that “every judgment” is “paid and discharged” in ten years cannot be made when the judgment is invalid. See 2 Abrahan Clark Freeman, A Treatise on the Law of Judgments Including ALL Final Determinations of the Rights of Parties in Actions or Proceedings at Law or in Equity § 1091, at 2268 (Edward W. Tuttle, ed., rev. Sth ed, 1925) (*[I)£ the original judgment has been reversed or satisfied, there can be no execution issued pursuant to the revival by scire facias.”). Construing “judgnent” as a valid judgment, therefore, requires that an Yoriginal judgment” is a valid judgment. A first-in-time judgment that has been vacated or reversed is no longer valid and therefore cannot be an “original judgment.” Consistent with this construction of “judgment,” 18  ‘14+ FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER, Petitioners contend that an “original judgment” is simply a valid Judgment that has not been extended. According to Petitioners, the statutory use of “original judgment,” as opposed to “judgment” in HRS § 657-5, distinguishes an “original judgment” from an extended judgment in order to clarify that an original judgment, but not an extended judgment, may be extended. Pursuant to this interpretation, they contend that a valid judgment may be extended and enforced during the same ten year period. Thus, under Petitioners’ interpretation, “original judgment” ie not necessarily the first-in-time judgment of a In light of these conflicting interpretations of the term “original judgment,” we do not agree with the ICA or the circuit court that the meaning of the term, as it appears in HRS § 657-5, is “plain” or “unambiguous.” See Roxas II, 120 Hawai'i at 126, 202 P.3d at 587; cf. Gillan v. Gov't Employees Ins. Co., 119 Hawai'i 109, 117, 194 P.3d 1071, 1079 (2008). As we have stated, “{a] statute is ambiguous if it 1s capable of being understood by reasonably well-informed people in two or more different senses.” Gillan, 119 Hawai'i at 117, 194 P.3d at 1079 (citations omitted). Our analysis of the plain language of HRS § 657-5 indicates that reasonable minds could differ as to which judgment an “original judgment” refers to, and, as such, we hold that the term is ambiguous. See id. (concluding that the term “independent medical examiner” in HRS § 431:10C-308.5(b) (Supp. 2002) was ambiguous because it could be interpreted as requiring an actual examination). Inasmuch as “original judgment” is 13  FOR PUBLICATION HAWAI REPORTS AND PACIFIC susceptible to two interpretations,‘ we next look to extrinsic aids to assist our interpretation of HRS § 657-5. B. Extrinsic Aids ‘This court has numerous tools to construe an anbiguous statute: (t]he meaning of the ambiguous words may be sought by examining the context, with whlch the ambiguous words, phrases, and Sentences may be compares, in order to ascertain their true Meanings, Moreover, the courte may Fescrt to extrinsic aids in Getermining legislative intent. "One avenue is the use of Jegislative history az an interpretave tool. This court may also Consider the reason and spirit of the lax, and the cause which Snduced the legislature to enact it to digcover its true meaning. Lave in PAE gasaria, or upon the sane subject matter, shall be construed with seference to cach other. What is clear in one Starute may be called spon in aid to explain what is doubt ful in nether. in re Water Use Permit Applications, 94 Hawai'i 97, 144, 9 P.3d 409, 456 (2000) (internal citations, internal quotation marks, brackets, and ellipses omitted; block quote format changed). See also HRS $ 1-15 ("Where the words of a law are ambiguous[,] [t)he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and «__imelda marcos points to a Anternational savings 4 Loan Agen vs wise, £2 Howat’ 197, 921 ¢-2d 117 (i996), to support her claim that ARS § Gs7-5 ss Gnambiquovs. (Quoting Miia for stating that “the plain Lanauaze of HBs § 6578 clearly mandates... + Recordingly, pursuant to the plain Language Of HAS $E57-5, the judgnont expired on March 8, 1994 =~ ven years after the original judgnent was rendered.” (ellipses added) .) Io Mila, this Court considered ‘whether a garnishment of wages survives the expiration of ten year statutory limitation pursuant to [HRS § 657-5) on the life of the Ungeflying judgment.” 82 #awal't at 198, 921 P.2d at 118. The plaintitr aia hot renew OF extend its judgment against the defendant before the ten year Period had fun, 2nd, thus, pleisly expized ten years after the first ang only Susgnent was rendered, Id. at 199, 921 P24 at 119. tn Wiig, we were Zoncerned with whether the garnishment order “tolled” the Iie of the judgment beyond the ten year period, whereas Petitioners here do not seek to argue that Snorder tolled the life of the judgment. gaealge Boxaz Ii, 120 Hewal't at i2e-27, 202 F.3d at 587-86 (explaining that the circuit court erred by relying on LLG in extending the judgment because that case is inapplicable). Because lig dis net analyse the effect of multiple Judgnente on extending 2 Judgment, St hae limited application to this case. 20  sentences may be compared, in order to ascertain their true meaning.” The 1992 Hawai'i Legislature anended HRS § 657-5 by inserting the extension provisions at issue. 1992 Haw. Sess. Laws Act 74, § 1 at 110, The amendments prohibited an “extension of a judgment or decree” where (1) the extension was not “sought within ten years of the date the original judgment was rendered,” (2) it is “beyond twenty years from the date of the original judgment or decree," and (3) there was no “notice and the filing of @ non-hearing motion or a hearing motion to extend the life of the judgment or decree.” Id, The legislative committee reports on this bill offer limited guidance in interpreting “original judgment .“? The most telling statement about the limitation to extend a judgment is from the House Judiciary Committee’s report. In passing the bill that became Act 74, this committee stated, “the purpose of this bill is to amend [HRS §] 657-5, to prohibit a judgnent or decree of any court of the State from being extended, renewed, or revived beyond ten years after the date the Judament_or decree was rendered.” H. Stand. Comm. Rep. No. 543 in 1992 House Journal, at 1036 (emphasis added). This stated purpose of the amendment indicates that the relevant date for >the Senate Judiciary coomittee’s report on this Bill explained that the committee amended the Gill “so that the statute of linitations for extensions ia the same for all decrees and judgnents.”” Sen. Stand. Comm. Rep. No. 2480 in 1982 Senate Journal, at 1117. The legislative intent that “all decrees and Judgnenta” have the “sine” ton your statute of Limitations for extensions 12 open to two interpretations, The legislature nay have intended that each Sudgrent fay be extensed (1) for the “sane” amount of time (ten years fom the date that the judgment 439 entered), or (2) until the “sane Gate (cen years after the firse-in-tine judgment) « 21  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER extending a judgment is the “date the judgment or decree was rendered.” Id, (Emphasis added.) While the legislative intent of this statutory language is not entirely clear, the statute is clearly designed to prohibit a party from seeking to extend a judgment more than ten years after the “original judgment” is rendered. The statute of Limitations for extending a judgnent begins to run on “the date the original judgment or decree was rendered.” HRS § 657-5. This provision is part of the HRS § 657 “Limitation of Actions” chapter. Under HRS § 1-16 (1993): “Laws dn pari materia, or upon the same subject matter, shall be construed with reference to each other, What is clear in one statute may be called in aid to explain what is doubtful in another.” The sections in this chapter have similar elements and aid in our interpretation of BRS § 657-5. See State v. Cardus, 86 Hawai'i 426, 435, 949 P.2d 1047, 1056 (App. 1997) (referring to other sexual assault statutes in construing the offense of sexual assault in the second degree because the statute was included in the “series of offenses”). Other statutes of limitations in HRS Chapter 657 begin when the “cause of action accrued.” See HRS § 657-1 (1) (1993) (relating to, among other things, actions to recover debt “founded upon any contract, obligation, or liability"); HRS § 657-4 (1993) (relating to libel or slander); HRS § 687-6 (1993) (relating to causes arising in foreign jurisdictions); HRS § 657- 7 (1993) (zelating to recovering for damage to persons or property); see also Kaho'chanchano v. Dep't of Hunan Servs., 117 22  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * Hawal's 262, 315, 178 P.3d $38, $91 (2008) ("In a negligence on, the claim for relief does not accrue until plaintiff knew or should have known of defendant’s negligence.”). Black’s Law Dictionary 22 (8th ed. 2004) defines “accrue” as “[t]o come into “original judgment” of HRS § 657-5, in pari materia within the tence as an enforceable claim or right.” In construing framework of the entire statutory scheme governing limitations of actions, the statute of Limitations for extending a judgment begins to run when the cause of action -- the judgment that creates the enforceable claim or right -- “come[s] into existence as an enforceable claim or right.” All judgments, even those that aze modified or amended, becone “enforceable claim{s] or rights)” only when the judgments creating those rights are entered. It is only at the time that the judgment is rendered when the parties are (1) aware of their rights and responsibilities created by the judgment and (2) able to enforce these rights. Accordingly, the statute of limitations for extending a judgment begins to run at the creation of the Judgment that creates the rights and responsibilities that the party is seeking to extend. ‘The foregoing construction comports with other states’ statutes that permit a party to bring an action to extend a judgment before that judgment to be extended expires.‘ See Llift + other juriedietions permit 2 litigant to revive a judgment even after it has expired. See Magnun Conme’ns Ltd., v. Samoluk, 620 5.6. 439, 4st (ca. ce. App. 2008); Inge Seoadand, 240 B-R. iil, 116-17 (Bankr. W.9, ono 2000); Bevis intern, inc. ex rel. Patel v. Berryman, 730 So. 24 242, 244 (Ala. Civ. App. 1999)7 Gaxdner v Garduee, 916 P.2d 43, 45 (Kan. Ct.” App. 1996); Fitet Nat. Bonk of Maenoo v, Loffelmacher, 603'w.£.24 80, 63-84 (111 ‘cont inved. 23  FOR PUBLICATION IN WEST'S HAWAU REPORTS AND PACIFIC REPORTER *** ve Dustrud, 107 Cal. App. 4th 1201, 1207-08, 132 Cal. Rptr. 2d 848, 852-53 (2003)7 accord Robbins v. A.B, Goldberg, 185 P.3d 794, 796 (Colo. 2008) ("A revived judgment must be entered within twenty years after the entry of the judgment which it revives.” (quoting C.R.C.P. Rule 54)); Shamrock, Dev, Inc., 737 N.W.2d at 376 (observing that a party may move to renew a judgment if it is prior to the judgment’s expiration) (citation omitted); Citizens Sav. and Loan Ass'n v, McDonald, 80 P.3d $32, 535 (Or. Ct. App. 2003) (observing that the state statute permits a court to extend a judgment before it expires): Kroop ¢ Kurland, PA. v. Lambros, 703 A.2d 1287, 1289 (Md. Ct. Spec. App. 1998) ("A notice of renewal may be filed by the judgment holder at any time before the expiration of the judgnent.”); Hanks v. Rees, 943 S.W.2d 1, 3-4 (Mo. Ct. App. 1997) (noting that the motion to revive a judgment must be filed before the judgment expires).* In considering whether the period to renew an amended judgment *(.s.continuea) app. ct. 1992) * _tnelda Marcos pointed to cases that referred to the first~in-tine judgment as the “original judgnent.” (eLeing Pos v Board, 98 Hawaii 4i6, 417, 49 F.30 382, 363 (2002); Chattem Inc. v. Baile, TeeU.s, 1059, 2831 fahite, J., dissenting) ). Gee als Tit? v. dusted, 10: Gal. ip. 0n'1201, 1206, 132 "Cal. sper. 24.848, 652 (2003) . However, other coufts have referred to the judgment that may be extended ag the “original judgment.” See Shamrock Dev, tne. v. Smith, 737 NoW.2a372, 376 Minn. Ct. App. 2007), geversed on other arqunds py 754 N.w.2d 377" (Minn. 2008) "{cuiing that a party aay move to renew a judgsont “within ten years Gfter entry of the original judgment,” “so that the judgments extend beyond the initial ten-year period”); Jannet v. Jacob, S18 N.W.24 263, 186 (ND. $854)" [providing that an “original sudgment™ may be renewed under state law Ange Sitars, 130 B.R, 720, 725 8,20 (Bankr. D. Minn, 1998) (noting that the Sgriginal sudgrent lapses” and is unenforceable if at is not renewed). 8y atating that an "original judgeent” nay be extended, the courts wore Recesssrily referring to a Judgnent with enforceable claims, because only valid judgnent may be extended. Ses SURE. 28 {++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ** begins at the date of the first-in-time or amended judgment, the California Court of Appeals held that, based on state law, “any money judgment . . . regardless of whether it be a modified or amended judgrent, and without regard to finality” may be extended “before the expiration of the 10-year period of enforceability.” LLiEE, 107 Cal. App. 4th at 1207-08, 132 Cal. Rptr. 2d at 852-53 (citing California Code of Civil Procedure $ 683.130"). ‘This construction does not contradict the definition of “original” as provided by the ICA. See Roxas IL, 120 Hawai'i at 126, 202 P.3d at SE7. The ICA posited that, “{i}n its ordinary use, the word ‘original’ denotes the ‘beginning of something, . . sa primary form or type from which varieties are derive.’” See id, (quoting Webster’s Encyclopedic Unabridged Dictionary of the English Language 1015 (1989)). Although it concluded, in reliance of this definition, that “original judgment” “refers to the firet judgment rendered by a court,” a first-in-time judgment will not always conform with the definition of “original” as supplied by the ICA. Id, The first-in-time judgment is not “a primary form or type from which varieties are derived” in certain circumstances. For example, the first-in-time judgment is not a “primary form or type from which varieties are derived” where an issue is not resolved in the first-in-time judgment, but rather, California Code of Civil Procedure $ 663.020 states: “Except a= otherwise provided By statute, upon the expiration of 10 years after the date Of entry of a money juognent cr a judgment for possessica of property: (a) The Judgment may not be enforced, LEC, 107 Cal, App. dth at 1207, 132 Cal, pte, at 853,” California Code of Civil Procedure § 682.130(z) states in jt a lump-sum money judgment may be extended by renewal of py tine before the expiration of the 10-year period of 25.  FOR PUBLICATION IN WEST'S HAWAI REPORTS AND PACIFIC REPORTER in a subsequent judgment. In addition, the first-in-time judgment may not even “begin{]” to resolve a claim or cause of on for a party in a case that involves multiple plaintiffs or defendants. Under such conditions, the first-in-time judgment has absolutely no bearing on subsequent judgments and does not create any “form or type from which varieties are derived.” In contrast, an unextended valid judgment that created the rights that a party is seeking to extend is consistent with the foregoing definition of an “original” judgment. The “beginning” stage of a valid and not previously extended judgment, is the “primary form or type from which varieties(, i.e, extended Judgments, ] are derived.” Webster’'s Encyclopedic Unabridged Dictionary of the English Language 1015. Each unextended judgment that has an enforceable claim -- even those that pertain to only one of multiple parties or issues -- is an “original” judgment under the foregoing definition, because it may be the “primary form or type from which” extended judgments are derived. Based on the plain language of the statute, we cannot conclude that “original judgment” refers to the first-in-tine judgment. We hold, rather, that “original judgment” of HRS § 657-5 pertains to the judgment that creates the rights and responsibilities that the moving party is seeking to enforce and extend. Under this construction of original judgment,” there may be more than one “original judgment." See Konstadtv, Konstadt, 570 Av2d 48s, 486, 488 (N.3, Super. Ct. App. Div. 1990) {referring to two judgments that’ decided different issues on the case as “original judgments” in the context of Geviving the original judgrents under 2 law that permite enforcement "within five years of the Judgeent’s original rendering”) 26  ‘OR PUBLICATION IN WEST'S HAWAM REPORTS AND PACIFIC REPORTER *** Imelda Marcos does not point to a single jurisdi that (1) prohibits an extension on an unextended judgment that is not expired or (2) starts the statute of limitations for extending an amended judgment at the time the first-in-time judgment is rendered. We can think of no reason why the first in-time judgment should control the timing of the extension of all subsequent judgments." Based upon the plain language of the statute, and construed in pari materia within the framework of the entire statutory scheme governing limitations of actions, “original Judgment” of HRS § 657-5 refers to the judgment that creates the rights and responsibilities that the party is seeking to extend. C. An Amended “Original Judgment” We next must address the issue of when the time limit begins for extending a judgment where the judgment that created the enforceable rights was amended. In light of the above interpretation of “original judgment,” the time limit for extending a judgment that created the enforceable rights at issue and is later amended, depends on the type of amendment. Cf. Boe v.Hawai's Labor Relations Bd, 98 Hawai'i 416, 418-19, 49 P.3d 382, 384-85 (2002). In Poe, this court determined whether the appellant timely filed a notice of appeal under Hawai'i Rules of % Ag discussed auata, the ICA's construction of HRS § 657-5 ie fawed particularly where the enforceable claim or right that a party seeks to Gutend Say aot save Deen created at the tine of the farst-in-tine judgment ed on the procedural history of the case, the firat-in-time Judgment 19 an arbitrary starting point to Degin the statute of limitations for a subsequent Judgment that wes amended in a natersal ang substantial way. Further, here. Lego basis for pemstting the firet-in-tine judgment to be enforceable for up to twenty years, while precluding sone judgeents fros any extensicn at all. 27  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER Appellate Procedure Rule 4(a) (1), which requires the notice to be £ d “within [thirty] days after entry of the judgment or appealable order.” 98 Hawai'i at 418, 49 P.3d at 384, The appellant filed a notice of appeal twenty-nine days after a second amended judgment, but more than thirty days after the entry of the first amended judgment. Id, at 417, 49 P.3d at 383. In deciding from what date to measure the time for appeal, this court declared: The general rule is that where @ judgment is amended in a material ang Substantial respect, the time within which an appeal from uch determination nay be taken begins to run from the date of the Gnendnent, aithsdgh where the snendsent relates only te the Correction of a clerical... error, it does not affect the tine Sllowed for appeals Id, at 418, 49 P.3d at 384 (quoting Korsak v, Hawai'| Permanente Medical Group, 94 Hawai'i 297, 304, 12 P.3d 1238, 1245 (2000) (quoting Interstate Printing Co, v, Department of Revenue, 459 N.W.2d 519 (Web, 1990))). Bos observed that an amended judgment that did not materially alter rights “did not create a right of appeal where one did not exist,” and, thus, did not extend the time allowed for appeal. Id. at 419, 49 P.3d at 385. We hold that a rule similar to Poe and Korsak should be adopted here. Where an unextended judgment is “amended in a material and substantial respect,” so that it creates the rights that are being extended, the time within which a motion to extend the judgment may be brought “begins to run from the date of the amendnent,” because that judgment created those rights. See Poe, 98 Hawai'i at 418-19, 49 P.3d at 384-85. Where, on the other hand, the unextended judgment merely makes non-substantive or non-material amendments to a prior judgment, it does not create 28 {+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ** an enforceable right. In that situation, it is not appropriate nd the time allowed to revive the that the amended judgment ¢: enforceable judgnent.” Under the foregoing rule, a judgment that is entered nunc pre tunc as of a prior date may be the “original judgment” for purposes of HRS § 657-5 if it changed a prior order in 2 material and substantial manner. Although we have stated that a “pune pro tung order relates back to the original date of the matter it affects,” Keahole Defense Coalition, Inc. v. Board of and and Natural Resources, 110 Hawai'i 419, 430, 134 P.3d 585, 596 (2006) (quoting Bos, 98 Hawai'i at 423, 49 P.3d at 389 (Acoba, J., dissenting)), the date of the prior entry is not “the effective date of the judgment for all purposes.” Horer va Chapman, 119 U.S. 587, 602 (1887). As the United States Supreme Court explained, a nune pro tune date is “a fiction of law, made and considered to be the true date of the judgment” only to “bind the defendant by the obligation” of the earlier date. Borer, 119 U.s. at 602. Hawai'i appellate courts have determined that, even when a judgment is entered nunc pro tunc to a prior date, the statute of limitations for filing a notice of appeal begins on the date that the judgment was actually entered, rather than from the nunc pre tunc date. See One Boat, 119 Hawai'i at 250-52, 254, 199 P.3d at 1182-84, 1196 (holding that the defendant timely » This construction addresses Judge Leonard’ s concern againat vefsectively extend|ing] the life of any final judgsent that is amended before, by, of after an appeal, no fatter how significant of insignificant en amenanent might be-” KoxaS 1,120 Hawai'i at 128, 202 P.3d at 389. (Leonard, Sey concureing)- 23  + FOR PUBLICATION IN WEST’ HAWAII REPORTS AND PACIFIC REPORTER ed a notice of appeal from a judgment that was entered pune pro tune, effective on a date two years prior, because the defendant could not actually appeal from the order until it was reduced to a judgment); Carlisle v, One Boat, 118 Hawai'i 107, 185 P.3d 855 (App. 2008).* Similarly, even though a judgment is entered pune pre tune as of a prior date, a court can only exten« that judgment after it is actually entered. The fact that the judgment is entered nunc pro tune does not alter the date that the “original judgment” was rendered. Pursuant to the “original judgment” test set forth above, the nunc pro tune date will only serve as the date the “original judgment” was rendered if the subsequent judgment made a non- jubstantive change. However, a judgment that is entered nunc pro tun will begin the limitations period for extending the judgment where it materially or substantially amended the earlier judgment. Thus, where multiple judgments created the same rights that the party is seeking to extend, the “original judgment” is (2) the unamended judgment where the amended judgnent makes non- material amendments to a prior judgment, but (2) the amended judgment whi fe it amended the prior judgment “in a material and substantial respect.” In One Boat, the circuit court entered an order dismissing petition against the defendant on February 1, 2002, and it entered a judgment Over two years later, on Gecenber 6, 2006. 19 Hawai'l at 250-52, 195 F.3d at 1182-84. "Defendant moved to anend the judgrent to correct errors and ester the judgment pune pro tune, effective on the date of the order, February 1, 2002, ds at 251, 195 P.34 at 1163. The circuit court granted this motich, But it “held that’ the puse pko iunc provision could not be used to defeat the State's right to appeal from the Judgnent and the State’s time to appeal ran from the date of entry of the circuit court's order.” Ida 30  D. Moving To Extend The Second and Fourth Amended Judgments Under the foregoing construction of HRS § 657-5, Petitioners timely sought to extend the Second and Fourth Amended Judgments. Petitioners moved to extend these judgments within ten years of the date that the judgments that created the rights to be extended were rendered. ‘The Second Anended Judgment, filed on October 18, 1999, granted judgment “in favor of [Dacanay,] as personal representative of the estate of Roger Roxas in the amount of 6 million in general damages for false imprisonment and battery against Inelda Marcos in her personal capacity, to the extent of her interest in the Marcos Estate.” This right was created by the Second Amended Judgment. The firat-in-time judgment (rendered on August 28, 1996) and the Amended Judgment (rendered on October 21, 1996) do not qualify as an “original judgrent” for purposes of extending the Second Amended Judgment, because they did not present enforceable rights on Petitioners’ claims of battery and false imprisonment against Imelda Marcos in her peraonal capacity. See Roxas I, 89 Hawai'i at 114, 969 P.2d at 1232 (vacating the portion of the Amended Judgment entered against “Defendant Imelda Marcos, as Personal Representative of the Estate of Ferdinand Marcos”). The first-in-time judgment and Amended Judgment were materially and substantially ch: Second Amended Judgment." Accordingly, the Second Amended aged by the ‘The fact that the Second, Third, and Fourth Amended Judgments we “entered nunc Bra func 28 of October 21, 1996," the date of the Anended assent, doe2 nov alter the date that the “original Judgments” were rendered See sunsa- 3 {++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** Judgment ig the “original judgment” on the false imprisonment and by ery claims against “Imelda Marcos in her personal capacity, to the extent of her interest in the Marcos Estate.” Petitioners sought to extend the Second Amended judgment on May 8, 2007, This motion was filed within ten years of the date the original dgment, the Second Anended Judgment (giled on October 18, 1999) was rendered. Accordingly, the circuit court properly ordered that the Second Amended Judgnent be extended. Petitioners also sought to extend the Fourth Amended Judgment, which awarded GBC over $13 million in damages and pre- judgment interest against “Imelda Marcos in her personal capacity, to the extent of her interest in the Marcos Estate” for a conversion claim. The “original judgnent” that created this right is the Third Amended Judgment. ‘The first-in-time, Amended, and Second Arended Judgments** did not render this right to GBC. See Roxas I, 89 Hawai'i at 187, 969 P.2¢ at 1275 (reversing the edzcuit court's Amended Judgment against Defendant Imelda Marcos, as Personal Representative of the Estate of Ferdinand Marcos, with respect to GBC’s conversion claim and remanding the matter for a new trial on the value of this claim). The Third Amended Judgment, which was entered on June 26, 2000, was amended by the Fourth Amended Judgment on September 6, 2001. Yet, the Fourth Amended Judgment’s only change to the Third Amended Judgment was an additional paragraph, stating, “The 1 the Second Amended Judgrent did not present any enforceable right fon GRC’s conversion claim, It stated that the court retained jurisdiction Over Gac's conversion claims. 32  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER court expressly determines that there is no just reason for delay and expressly directs for the entry of judgment.” This was merely a non-substantiv change -- it did not change the Third Amended Judgment in a material manner. Thus, the “original judgment,” for purposes of extending the Fourth Anended Judgme: is the Third Amended Judgnent. Petitioners sought to extend the Fourth Amended Judgment on May 8, 2007, within ten years of June 26, 2000, the date the Third Amended Judgment was rendered. Accordingly, the circuit court was permitted to extend the Fourth Amended Judgnent. 1B. Extending The Fourth Anended Judgment Beyond Twenty Years of the Original Judgnent ‘The circuit court extended the Second Anended Judgment until October 17, 2019, and the Fourth Anended Judgment until Septenber 5, 2021. The extension of the Second Anended Judament to October 17, 2019 was proper, inasmuch as this date is less than twenty years from the date of its “original judgment” (the Second Anended Judgment, entered on October 18, 1999). See HRS $ 657-5 ("A court shall not extend any judgment or decree beyond twenty years from the date of the original judgment or decree.”) However, the circuit court erred by extending the Fourth Anended Judgment (filed on September 6, 2001) to September 5, 2021, inasmuch as the extension is more than twenty years beyond the date of the “original judgment.” As detexmined supra, the “original judgaent” for purposes of extending the Fourth Amended Judgment is the Third Anended Judgment. Because the Third Anended Judgment was 33  FOR PUBLICATION IN. IAWAN REPORTS AND PACIFIC rendered on June 26, 2000, the court was precluded from extending the Fourth Amended Judgment beyond June 25, 2020. See HRS $ 657- 5 ("A court shall not extend any judgment or al. judgment years from the date of the o} court, therefore, erred when it extended the Judgment beyond June 25, 2020. IV. CONCLUSION Based upon the foregoing analysis, ICA's March 5, 2009 judgment, (2) vacate the decree beyond twenty or decree.”). The Fourth Amended we (1) vacate the eireuit court's July 24, 2007 order, to the extent that it granted Petitioners’ motion to extend the fourth amended judgment until September 5, 2021, and (3) remand this case to the circuit court for further proceedings consistent with this opinion. nR. Magana, pro hac vice, (Daniel C. Cathcart, pro hac vice, of Nagana, Catheart & Motarthy and Ward D. Jones Gorm of Bervar 5 Jones, with him fon the application and briefs) for petitioners/plaintiffs- Peceetea Telia are appellees Joseph A. Stewart (Lex R. Smith Venwe Ducts + and Maria Y. Wang of Kobayashi, Sugita & Goda and Janes P. Linn Meld that fotsio and D, Patrick Long (special counsel to the firm) of James P. Linn Law Firm, with him on the buch Weck, response and briefs) for respondent/ defendant-appellant 34 

c85b8dc34287756fda2db3cf3af2c0b307c68ec68735d3f0e20855dee09a2501

2009-08-10T00:00:00Z

f09c524d-dfea-4fc1-ae4c-abc2c05e820d

Pflueger v. Watanabe

hawaii

Hawaii Supreme Court

8- nr eae Wo. 29896 arte IN THE SUPREME COURT OF THE STATE OF HAWAI'I ——————— Individually and as Trustee of the ‘and JANES H. PFLUEGER, Mary N. Lucas’ Trust; PFLUEGER PROPERTIES: PFLUEGER PARTNERS, Petitioners, THE HONORABLE KATHLEEN NA. WATANABE, JUDGE OF THE CIRCUIT COURT OF THE FIFTH CIRCUIT, STATE OF HAWAI'I; BRUCE FEHRING, Individually and as Special Administrator of the Estates of AUROA FEHRING and ALAN DINGWALL FEHRING? CYNTHIA FEHRING; INGRID DINGWALL; PAUL ROTSTEIN; MARGUERITE ROTSTEIN; JULIO ARROYO; VIVIAN ARROYO; ROGER McNEES; MARYANN McNEES; BRUCE FEHRING, as Personal Representative of the Estate of ROWAN GREY MAKANA FEHRING-DINGWALL; GARY ROTSTEIN, as Personal Representative of the Estate of WAYNE CARL ROTSTEIN; JULIO A, ARROYO, as Personal Representative of the Estate of DANIEL JAY ARROYO; ROGER McNBES and MARYANN McNEES, as Co-Personal Representatives of the Estates of CHRISTINA McNEES and BABY DOE McNEES; TIMOTAY W. NOONAN, SR., Individually and as Personal Representative of the Estate ‘of TIMOTHY W. NOONAN, JR. MARJORIE NOONAN; and NATALIE STARR MUDD, Individually and as Next Friend of RHEA STARR NOONAN MUDD, Respondents. oye He ORIGINAL PROCEEDING (CIVIL Nos. 96-1-0082, 08-1-0050, 08-1-0051) ‘ORDER (By: Duffy, J. for the court*) Upon consideration of the petition for a writ of mandamus filed by petitioners Janes H. Pflueger, individually and as Trustee of the Mary N. Lucas Trust, Pflueger Properties, and Pflueger Partners, and the papers in support, and having been * considered by: Moon, C.J., Nakayama, Aecba, and Duffy, JJ. and ‘Court of Appeals Judge Fujise, in place of Recktenwald, J., informed that the civil trial date has been continued to the week of May 3, 2010. Therefore, IT IS HEREBY ORDERED that the petition for a writ of mandamus is dismissed as moot. DATED: Honolulu, Hawai'i, July 9, 2009. FOR THE COURT: Gort, Badly, Associate Justice 

ece99255d6ae52685710c1eb616bcbdfec6262b364b49a290838957a2f2c9478

2009-07-09T00:00:00Z

337be7d8-f910-4f21-9b04-1a3cf0d3c033

State v. Ampong

28862

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 28862 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Respondent /Plaintiff-Appellee a3 FOSTER R. AMPONG, CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO. 2D7C-06-005235) gir oj NG Acoba, J., for the court") (By: ‘The Application for Writ of Certiorari filed on June 22, 2009 by Petitioner/Defendant-Appellant Foster R. Ampong is hereby rejected. Honolulu, Hawaii, FOR THE COURT: DATED: guly 8, 2009. Associate Justice David J. Peterson (Ranken & Drewyer), on the application for petitioner/defendant- appellant. Acoba, and Duffy, Jd., and 1 considered by: Moon, C.J., Nakayama, Circuit Judge Trader, in place of Recktenwald, J., recused 

63eb95fb24f598b0475b9d438cb55b3de01c85759224126dc2c588eca344fc3f

2009-07-08T00:00:00Z

2ba1a21c-780b-452c-91b1-38f533b8f6e7

Walden v. Flanigan

hawaii

Hawaii Supreme Court

uw No. 28807 IN THE SUPREME COURT OF THE STATE OF HANAT'T R. CODY WALDEN and HANATIAN FOREST SECURITIES, INC., Petitioners/Plaintiffs/ Counterclaim Defendant s-Appellants CHRIS FLANIGAN; JACKIE FLANIGAN; KEVIN B, FLANIGAN? ONOMEA PLANTATION, LLC, Respondents/Defendants/ Counterclaimants-Appellees hezine 6~ Noe side CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. No, 04-21-0035) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on May 11, 2009 by Petitioner/Plaintiffs/Counterclaim Defendants-Appellants R. Cody Walden and Hawaiian Forest Securities, Inc. is hereby rejected. DATED: Honolulu, Hawai'i, June 9, 2009. FOR THE COURT: Associate Justice John $. Edmunds, Ronald J. Verga’and Joy 8. Omonaka (Edmunds & Vergata) and Robert G. Klein (McCorriston Miller Mukai MacKinnon), on the application for petitioners/plaintiffs/ 5 considered by: Moon, C.J-, Nakayama, Acoba, Duffy, and Recktenwald, 09 qa counterclaim defendante- appellants. Bert T. Kobayashi, Jr. and Bruce Nakamura (Kobayashi Sugita & Goda) and Robert D. Triantos and Edmund W.K, Haitsuka (Carlsmith Ball, LLP), on the response’ for respondent s/defendants/ counterclaimants-appellees. No. 28807 - Walden v. Flanigan, Order Rejecting Application for Writ’ of Certiorari 

3010375d3bb3db861cab6fb12c5dae327e95dafb65a05d77379b8884bb95d6b3

2009-06-09T00:00:00Z

4a4e951c-3b09-49da-b96d-350fe333cb55

Jelks v. State

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 29449 IN THE SUPREME COURT OF THE STATE OF HAWAI'I KENNETH JELKS, Pet itioner/Petitioner~ STATE OF HAWAI'I, Respondent /Respondent-Appellee, = APPEAL PROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (S.P.B. NO. 05-1-0061; CR. NO. 94-0257) ‘ORDER DISMISSING APPLICATION FOR WRLT_OF CERTIORARI (By: Moon, C.J. for the court’) Petitioner /petitioner-appellant Kenneth Jeiks’ application for a writ of certiorari, filed on June 12, 2009, is deemed filed on dune 5, 2009, the date that petitioner certifies that the application was tendered to corrections officials for mailing to the suprene court. See Setala v. J.C, Penney Co., 97 Hawai'i 484, 40 P.3d 886 (2002). ‘The time for filing an application for a writ of certiorari expired on June 3, 2009, ninety days after the filing of the intermediate court of appeals’ March 5, 2002 dismissal order. See HRS § 602-59(c) (Supp. 2008). Therefore, the application for a writ of * considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, gs certiorari, deemed filed on June 5, 2009, is untimely. Accordingly, I? IS HEREBY ORDERED that petitioner’s application for a writ of certiorari is dismissed, DATED: Honolulu, Hawai'i, duly 6, 2009. FOR THE CouRT: Ge Justice ‘3, & eat 

3e2479a2bcd696337106c158f3ae3a89b28f269ccb58447b83c8cb03df7eabae

2009-07-06T00:00:00Z

9be47f80-7340-4ab3-a037-7a2023a9170c

State v. Mundon

hawaii

Hawaii Supreme Court

no. 26448 . 8 THE SUPREME couRD OF THE stare oF Haars SS =F =P STATE OF HAWAT'I, Respondent/Plaintitt-Appeljiee, c JAMES MUNDON, Petitioner/Defendant-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 05-1-0206) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORAR (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Marks, assigned in place of Recktenwald J., recused) Petitioner/defendant-appellant James Mundon’s application filed May 21, 2009, is accepted and will ‘The parties will be notified by for writ of cert be scheduled for oral argunent. the appellate clerk regarding scheduling. Honolulu, Hawai'i, July 1, 2009 DATED: FOR THE COURT: Stuart N. Fujioka, for petitioner/ defendant appellant, on the application Em, Yee Faath 

faaf8683474b2c5aa1f05e04a22f0ffe10f49f2656394a9e187d5dbafbb0cd66

2009-07-01T00:00:00Z

1952b5bd-476e-4db2-afc8-be6edf9d4529

Villanueva v. Hawaii Paroling Authority

hawaii

Hawaii Supreme Court

No. 29833 IN THE SUPREME COURT OF THE STATE OF HAWAI'I No, 29833 GERALD VILLANUEVA, Petitioner, HAWAII PAROLING AUTHORITY and ALBERT TUFONO, Ré No, 29849 GERALD VILLANUEVA, Petitioner, STATE OF HAWAI'I, Respondent. ORIGINAL PROCEEDING Po (CR. NO, 05-1-0946) - @ ORDER Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petitions for writs of habeas corpus filed by petitioner Gerald Villanueva in No. 29633 and No, 29849, 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. S11, 512, $57 P.2d 787, 788 (1976). Therefore, IT IS HEREBY ORDERED that the clerk of the appellate court shall process the petitions for writs of habeas corpus without payment of the filing fees. IT IS FURTHER ORDERED that the petitions for writs of habeas corpus are denied without prejudice to seeking habeas corpus relief in the circuit court pursuant to HRS § 660-3 (2993). DATE! Honolulu, Hawai'i, June 12, 2009. Som Bsseeee 6. Ted ames > an Veron s Setdye dy TE Petts bom 

8938090c4f81ada952f96d3f7be9aaa4a2df9e9018af99601529c832d6c89e21

2009-06-12T00:00:00Z

399e65a7-f6a4-492e-b873-e2b8ae80e7e2

Kapuwai v. City and County of Honolulu, Department of Parks and Recreation. Concurring Opinion by J. Acoba, with whom J. Duffy joins [pdf]. Dissenting Opinion by J. Nakayama [pdf]. ICA Opinion, filed 11/12/2008 [pdf], 119 Haw. 304. ICA Order of Correction, filed 12/08/2008 [pdf]. Application for Writ of Certiorari, filed 01/23/2009. S.Ct. Order Accepting Application for Writ of Certiorari, filed 03/03/2009 [pdf].

121 Haw. 33

hawaii

Hawaii Supreme Court

LAW LIBRARY * FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter IN THE SUPREME COURT OF THE STATE OF HAWAT'T === 00 --- DARRELL N. KAPUVAT, Respondent /Claimant-Appellant, CITY AND COUNTY OF HONOLULU, DEPARTMENT OF PARKS AND RECREATION, Petitioner/imployer-Appellee, Self-Insured. wo, 27915 “le CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO, AB 2004-328 (2-01-13437)) = JULY 16, 2009 | al 21-OkY 91 Tar cooe MOON, C.d., AND CIRCUIT JUDGE KIM, ASSIGNED BY REASON ‘OF VACANCY; ACOBA, J., CONCURRING SEPARATELY, WITH WHOM DUFFY, J. JOINS; AND NAKAYAMA, J., DISSENTING OPINION BY MOON, C.J., ANNOUNCING THE DECISION OF THE COURT on March 3, 2009, this court accepted a tinely application for a writ of certiorari, filed by petitioner /enployer-appellee City and County of Honolulu, Department of Parks and Recreation (the City) on January 23, 2009, requesting that this court review the Intermediate Court of Appeals’ (ICA) Decenber 8, 2008 judgment on appeal, entered pursuant to its November 12, 2008 published opinion in Kapuwai vw. City & County of Honolulu, 119 Hawai'i 304, 196 P.34 306 (App 2008). Therein, the ICA vacated the February 6, 2006 decision *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter and order of the Labor and Industrial Relations Appeals Board (EIRAB), which, in turn, had modified the decision of the director of the Department of Labor and Industrial Relations (director). Briefly stated, respondent /employee-appellant Darrell N. Kapuwai -- who was employed by the City as a mason -+ sustained a work-related injury to his right great toe. The City eventually accepted liability for Kapuwai’s injury, and the director awarded Kapuwai, inter alia, benefits for 96 percent permanent partial disability (PPD) of his right great toe. The City appealed to the LIRAB, and the LIRAB modified the director’s decision, concluding that Kapuwai was entitled to 4 percent PPD on the whole person. Additionally, the LIRAB denied Kapuwai's request for attorney’s fees and costs, made pursuant to Hawai'i Revised Statues (HRS) § 386-93(b) (1993), quoted infra. Kapuwai appealed the LIRAB’s decision to the ICK, arguing that the LIRAB should have converted the "whole person’ rating to a PPD rating of the great toe, pursuant to HRS § 386-32(a) (Supp. 2001), quoted infra, and should have granted his request for attorney's fees and costs. 0n appeal, the ICA held that Kepuwai was entitled to a PPD award based on the impairment of his great toe as opposed to a whole person rating if the award for the former exceeded the award for the latter; thus, the ICA remanded the case to the LIRAS for such determination. Based upon its remand of the case to the LIRAB, *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter the ICA recognized that it could not decide the attorney's fees issue but, nevertheless, provided ‘guidance" to the LIRAB regarding the application of HRS § 386-93(b) on remand on application, the City essentially contends that the ICA erred: (1) by renanding Kapuwai's case to the LIRAB for a ‘determination of a [PPD] award based on an impairment of (Kapuwai's) great toe"; and (2) in its interpretation of HRS § 386-93(b). We agree with the ICA's rationale and ultimate @isposition remanding the case to the LIRAB for a determination of a PPD award based on the impairment of Kapuwai’s great toe and, therefore, affirm that portion of the ICA’s opinion. However, as discussed more fully infxa, we hold that the ICA erred in delving into the interpretation of HRS § 386-93 (b) because, based on the ICA‘s remand of the case to the LIRAB, the issue of attorney's fees and costs was not ripe for decision. Accordingly, we vacate section II of the ICA's opinion relating to attorney's fees and costs. 1. BACKGROUND A. Factual Backaround and Procedural History As aptly summarized by the ICA: Kapuwai was eqployed by (ene city) as a mason. He developed a bunion and calluses on hia right Great toe which were aggravated by wearing steel-toed Shoes at work. On Noverber 23, 2001, Rapuvai underwent Surgery on Ala right foot that consisted of metatarsal osteotemy and distal phalangeal excstectony. The surgery Was pot successful in alleviating the pain and Sensitivity Kapuvai experienced in his right great toe. Kapuwai walked with a mild limp, had difficulty going up and down stairs, and had probleas with balance. ‘Ne gave Up ariving because he experienced twitching under his toe *** FOR PUBLICATION * ** in West’s Hawai'i Reports and the Pacific Reporter when stepping on the accelerator. The surgery left a Scar anda flexion deformity of hie right great toe. ‘The Cley accepted Iiability for Kapuwai's injury on october 28, 2002, and on December 1, 2002, the [dl irector ‘ordered the City to pay for Kapuwai's necessary, hhodial expenses as well as $5,421.25 in temporary cotal Gisability benetite. Zn Decenber 2003, Kapuvai was evaluated by [Wayne K. Madanoto, M.D. (Dr. Ntadanote) } for permanent [npairment.” Dr. Nadanoto used the Fifth Edition of the Anerican Medical Association Guides to the Evaluation of Permanent Impairment (ANA Guides) in rating Fapuwai's impairment.” Dr. Nadaroto applied the gait-derangement method rather that the range-of-notion method for Sesessing inpatrment under the Fifth Edition of the AMA Guides.{'] Based on the gait-derangenent method, Or Nadanoto rated Rapuwai's inpairsent as a 7 percent PPD of the whole person A hearing was held before the (d)ixector on the isoues of permanent disability and disfigurement. The [alirector credited Dr. Nadanoto's evaluation that Kapuwai suffered a 7 percent whole person disability ‘The [d)irector found that *(eJhis percentage should properly be converted co an award for the great toe only That vas the site of the injury." The (4]ivector used the Third Edition (Revised) of the AMA Guides to conver= Dr. Nadanoto's 7 percent whole person disability rating to\a.96 percent PPD of the right great toe, resulting in Pep award of $19,954.56. The (d)irector also ordered the city to pay Kapuwai $600.00 for disfigurement, to pay adaitional temporary total disability benefits, and to Feimburse Yapuwai for the cost of Dr. Nadanote’s evaluation’ ‘The City appealed the [d]irector’s decision to the LIRAB on July 13, 2004. The LIRAB isaved a pretrial order identifying the issues on appeal 2. what ia the extent of permanent Gisability resulting from [Rapuwai's) work injury. 7 (andl 2. What ig the extent of disfigurement resulting from (Kapuwai's) work injury. At the Clty's request, [8.Y. Tan, M.D. (Dr. Tan) } conducted an independent medical aamination of Kepuwal, Br. Tan prepared a report and testified at the (hearing) + specifically, Dr. radanoto determined that Rapuvai could not *be rated under the range of motion impairment value since (Kapuvai'a injury was] not a degenerative condition and definitely caused a gait abnormality waich (aia) not sericely fall under Table 17-5 of he AKA Ouide to Evaluation of Permanent Inpairent Sth Edition since there [was] no document (ed) moderste- advanced arthritie changes to the hip, knee, or ankle.” a4 *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter held before the LIRA on the City's appeal. Dr. Tan Aleagreed with Dr, Nadaoto’s use of the gait-derangement fethod of assessing Kapuvai's inpairment because Kapiwai'a condition did not fit the criteria for using that method under the Fifth Rdition of che AMA Guides. Dr. Tan concluded that the range-of-notion sethod, which was based on meaduring the range of motion of the great foe, waa the appropriace method to use./'] Applying the Fangesof-notion sethod, Dr. Tan determined chat kapuval had sustained a mild toe ixpairent equivalent toa t percent PPO of the whole person. on February 6, 2006, the LIRAB entered a decision what modified the [director's PPD award and affirmed the [@lirector’s disfigurement award. The LIRAB credited Dr Tan's opinion in finding [(11) that Kapawai should be fated under the vange-of-notion method and [()2) chat [, under the Pifth Baition Co the AYA Guides, Rapuvai’s Tenge of notion measurenents corresponded to a 1 percent [npairment of the whole person. The LIRAB also credited Kapuvai’s testinony on "how his toe condition has interfered with his activities of dally living, such as walking, golng up and down stairs, driving, and standing.” ‘The LIRAB concluded: Based on the foregoing, including Dr. Tan‘s impairment rating and [Kapuwal’s) testimony regarding his pain symptons and bow his toe condition has interfered with his activities of Gally 1iving, we conclude that [Kapuwal) te featitied co benefits for ¢ (percent) permanent partial disability of the whole person * speciticatiy, Dr. Tan stated in his report: With all due respect, 2 believe Dr. Nakamoto [sic] is {ncovrect in his analysis, Piretly, [riange of [mlotion {mpalraent’ (which incorporates pain) should be the logical choice in this case, and this is specifically covered under Section 17.2 on page 533. The section makes no mention whatsoever regarding the requirenent of a ‘degenerative Condition* as stated by Dr. Nakanoto [sic]. secondly, che Use of Table 17-5 to caleuiate impairment in this cage violates the expressed conditions precedent. Section 17.2¢ (Gale Derangement) on page 529 specifically notes that wo." the percentages given in Table 17-5 are for full-time gain derangements of persons who aze dependent on assistive @evices (bold font in text). Furthermore, the relevant paragraph (niid severity under a) is applicable only to Patients with documented moderate to advanced arthritic Changes of hip, knee{,) or ankie. Table 17-5 is Gnapplicable to the claimant’... Rapuval because he neither uses assistance devices, nor does he have arthritic Changes tn the hip, knee, oF elbow. (Gephasie in original.) *** ROR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter ‘The LIRAB’s decision did not separately determine what, Kapuwai's PPD avard would have been if based solely Oa the inpairment to his right great toe. The LIRAS Agreed with the (d)irector’s $600 disfigurement award {On February 16, 2006,] Kapuwai moved for reconsideration of the ground that the LIRAB failed to convert its award of 4 percent PPD of the whole person to ‘an award based on the impairment of his right great toe, a specific body part covered by the schedule of awards, for PFD under HRS § 386-32 (a) (°). ‘The LIRAB denied Kapuwai’s motion fer reconsideration on March 29, 2006 ° HRS § 386-32(a) provides in relevant part that: mere a work injury causes permanent partial Aisability, the emplover shal. ‘sospensaticn {nan anount detersined by pultiniving the Stiective saxinan weekly Denefit race prescribed ia-sertion iii by the number of weeks specified for the disability ae follows of use, Permanent lose of the use of a hand, farm, foot, ieg, thumb, finger, toe, or phalanx shall be ‘equal to and compensated as the loss of a hand, arm, foot, Teg, thumb, finger, toe, or phalanx: Partial lose or loss of use of senber naned in Schedule. Where a work injury causes permanent partial Gisability resulting from partial loss of use of a rember haned in this schedsle, and where the disability is not Stherwise compensated in this schedule, compensation shall be paid for a period that stands in the same proportion to the period specified for the total lose or loss of use of the menber as the partial loss or loss of use of that menber stands to the total loss or loss of use thereof; Other cases, In all other cases of permanent partial disability resulting from the loss or lose of use of @ part of the body or from the inpairnent of any physical function, weekly benefits shail be paid at the rate and subject to the Tinieactons specified In this subsection for a period that bears the sane relation to a period named in the schedule as the disability sustained beare toa comparable disability Samed in the schedule. mm cages in whlch tb Partial disability mst be rated as a percer Eotal loss or inpairment of a physical or mestal function of the whole person, the maximin compensation shall be computed on the basis of the corresponding percentage of the product of three hundred twelve times the effective maximum weekly Benefit rate prescribed in section 386-3 (Emphases added.)  *** FOR PUBLICATION ** in West’s Hawai'i Reports and the Pacific Reporter Kapuwa{ algo subeitted a request to the LIRAB thi the city be Fequired to pay $2,535, (pursuant to HRS § 386-93 (b),*) which represented one-half of the Attorney's fees and cost (s) incurred by Kapuvai in the City's appeal RAB. In support of his request, Kapiwai argued that the City raised two issues in the appeal (the extent of the PFD award and the extent of the Gistigurenent ward); that xapuvai was the prevailing party on the Jeaue of disfigurement; and that the LINAB Gia noe reverse but only modified the (d)irector’s Gecision on the teeve of PFD. The LIRAB effectively denied Rapuvai's request by not assessing the City with 50 percent of Kapuwai's attorney's fees and costs, Sut Snatead making Rapovai's attorney's feea and costs a lien lupon the compensation payable by the City to Kapuwal Kapuwai, 119 Hawai'i at 307-08, 196 P.3d at 309-10. On April 28, 2006, Kapuwai filed a timely notice of appeal from the LIRAB‘s (1) February 6, 2006 decision and order and (2) March 29, 2006 order denying Kapuwai’s motion for reconsideration. B. Appeal Before the ICA on direct appeal, Kapuwai contended that the LIRAB erred ‘as a matter of law" when it “failed to ‘convert’ its award of 4 [percent] PPD of the ‘whole person’ to an award of the right great toe under the ‘schedule’ of injuries pursuant to [HRS] § 386-32(a).* Specifically, Kapuwai argued that: + tn 2001 -- the date that Kapuwai becane permanently disabled -~ HRs 386-93(b) provided in relevant part that: anomplover anpeals a decision of the director or amellate board, the costs of the proceedings of the Sppeliate board of the supreno court of the state, Logether with reasonable attorneys fees shall be asseseed aoainst the cunlover, 4 the employer loses: provided that if an Geployer or an insurance carrier, ocher than the employer Who appealed, is held Liable for compensation, the costs of the proceedings of the appellate board or the suprese court tate together with reasonable attorney's fees shall fed against the party held liable for the compensation. (Emphases added.) *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter lihere an injured worker suffers a work injury which Casee permanent partial disability to Ma/her great toe (HRS § 386-32(a)] mandates that *. . an exployer shall pay the scheduled amount determined by sulesplying the Etfective maximum weekly benefit rate prescribes in | MRS by "38 weeks" as identified in the fo." By the use of the word "shall," it ia clear that the Havai'i Legislature determined that the paysent of [PPD] benefits pursuant co the *acheduied" anoint are mandatory in hature requiring that certain “Compulsory action’ be taken. The ‘compulsory action” required by the LIRAB was to "convert the *4” [percent) PPD of the whole person" toa PPD award of the scheduled injury, that being “great toe." (Bold emphasis in original.) (Internal citations omitted.) Moreover, Kapuwai asserted that the AMA Guides, Third Edition, should be used in converting the PPD award from 4 percent whole person permanent partial impairment to a percentage of an impairment of the right great toe. According to Kapuwai, under the AMA Guides, the 4 percent whole person award would be converted to a °73 [percent] permanent partial impairment through 90 [percent] permanent partial impairment] for a PPD award within the range of $15,173.78 through $18,707.40.° Kapuwai further argued that, *[wlhere two remedies are available (i.¢., lower percentage within the range of 73 [percent] to 90 [percent]), . . . Kapuwai should receive the benefit of the most favorable remedy (ive,, 90 [percent] PPD of the right great toe)." He contended that this "most favorable remedy" approach was “consistent with the benevolent purpose and scope of Hawaii’s workers’ compensation law.* Kapuwai additionally contended that the LIRAB erred in denying his request for attorney's fees and costs *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter specifically, Kapuwai argued that the LIRAB should have ordered the City to pay his costs and 50 percent of his attorney's fees because HRS § 386-93(b) reflects the legislature’s intention to relieve « claimant of the burden of paying attorney*s Tees and coste where an enployer appeals and the non Appealing enployer or insurance carrier i held Liable fer compensation due to the claimant, Moreover, the legislative history clearly indicates that the appealing employer should pay for costs and foes seven where he Goes not loge the appeal." This ‘may happen when an employer appeais on the grounds that the anount of Conpensation i excesnive and succeeds in having the amount reduced." Under this bill, "the appealing Employer would be required to pay such conta and feea,* piovenne (ijegislature|'s) reference to the appealing Gmployer to be (sicl "required to pay such costs and fees" could only refer to the situation now at hand. ‘he City responded that the LIRAB correctly awarded Kapuwai 4 percent PPD of the whole person inasmuch as it ‘was not compelled or obligated to convert its award of 4 (percent) PPD of the whole person to that of the right great toe because use of . . . [the HRS §] 386-32 . . . schedule is not exclusive when an injury is not clean cut and there are complications to other parts of the body,” that is, Kapuawai’s injury caused him to have an unsteady gait and permanent limp and interfered with his daily living activities. As such, the City maintained that the LIRAB correctly awarded Kapuwai PPD based on his whole person, Additionally, the City contended that the LIRAB did not abuse its discretion in failing to order it to pay Kapuwai's attorney's fees and costs because *[the City] prevailed on the crucial issue of PPD on appeal and [was] the prevailing party under (HRS 5] 386-93(b).* *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter on Novenber 12, 2008, the ICA issued ite opinion, concluding that Kapuwai was entitled to a PPD award based on the impairment of his great toe if that award is determined to exceed an award based on the impairment of his whole person. Kanuaai, 119 Hawai'i at 306-07, 196 P.34 at 308-09. In reaching such conclusion, the ICA relied on this court decision in Respicio v, Waialua Sugar Co., 67 Haw. 16, 675 P.2a 770 (1984), wherein we adopted the trend of “departing from the 8 of scheduled allowances" and held that, under HRS exclusive: § 386-32 (a), *[blenefits will be limited to schedule amounts if the loss is ‘clean cut,’ ive., where there are no complications to other parts of the body" but *(1Joss of a smaller member may be treated as a percentage loss of a larger member if the effects of the loss extend to other parts of the body." 67 Haw. at 18, 675 P.24 at 772 (citation omitted). The ICA determined that Respicio applied to the case at bar and concluded that, inasmuch as “[tJhere was evidence in the record that the effects of Kapuwai’s great toe injury extended to and interfered with the efficiency of other parts of the body and his whole person[,] . . . the LIRAB was not limited to basing its PPD award on the impairment of Kapuwai’s great toe, but could determine the extent to which the effects of Kapuwai’s great toe injury resulted in the impairment of his whole person.” Kapuwai, 119 Hawai'l at 211, 196 P.3d at 313. -10- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter However, the ICA ultimately concluded that HRS § 385-32 (a) entitled Kapuwai ‘to a PPD award based on the impairment of his creat toe if that taward] exceeds the LIRAB’s current award based on the impairment of his whole person.” Id. (emphasis added). Inasmuch as *(tJhe LIRAB did not determine what Kapuwai's PPD award would have been if based on the impairment of his great toe under the HRS § 386-32(a) schedule,” the ICA could not itself “tell if an award based on the impairment of Kapuwai’s great toe would exceed the anount ‘awarded by the LIRAB based on the PPD of Kapuwai's whole person." 1d, Accordingly, the ICA vacated the LIRAB‘s decision and remanded the case to the LIRAS for a determination of a PPD award based on the impairment of Kapuwai’s great toe as requested by him.’ 1d, at 306-07, 196 P.3d at 308-09. Based upon its decision to remand the case to the LIRAB for further proceedings, the ICA recognized that it could not “decide" Kapuwai’s remaining contention regarding the LIRAB‘s denial of his requested attorney's fees and costs because *[t]he determination of whether the City is the loser of its appeal to the LIRAB under HRS § 386-93(b) must be based on the final decision of the LIRAB.* Id, at 313, 196 P.3d at 315 (citation omitted). Inasmuch as the ICA vacated the 5 However, che ICA declared that it aia ‘contention thar, {npalreent, the rating physician and the LISAB must select the highest percentage in the range." 3d, at 312, 196 P.3d at 214. a1. *** FOR PUBLICATION *** in West’s Hawaii Reports and the Pacific Reporter LIRAB‘s decision and order, there was no final decision upon which the award of attorney's fees and costs could be based. Despite the ICA’s recognition that it could not “decide” the issue of attorney's fees, it, nevertheless, opined on the application of HRS § 386-93(b) to "provide guidance . . . to assist the LIRAB on remand.” Id, at 306, 196 P.34 at 308. Specifically, the Ick, after conducting a review of the legislative history of HRS § 386-93(b), stated: We conclude that {,] when an employer does not dispute the Conpensability of the exployee's injury and only appeals fon the ground that a PPD award is excessive, it should be Fogarded as the loser under HRS § 386°93(b) if ie falls fo abtain a substantial reduction in the compensation avard. in our view, this test is faithful co both the USnguage of HRS § 386-93 (b). which only permite the sessment of attorney's fees and costs against an jppealing employer “if the employer loses," and the Tegisiative purpose to discourage unnecessary appeals and aveld unfairly burdening an enployee with the costs of Gefending against an appeal. The test was derived by ruing the language of HRs § 366-93 (b) within the Context and spirit of che workers’ compensation law. ‘The crucial isgue in the type of case presented hhere is the amount of compensation the employer is Fequired to pay. The employer does not prevail on this isgue if it Only obtains a sinor or insubstantial reduction in the award. in determining whether the employer has achieved 2 substantial reduction in the award, the LIRAB should consider both the relative and absolute amount of the reduction. For example, if the ‘onployer appeals only a small compensation award, a percentage reduction in the award may not be sufficient fo avoid the assessment of the employee's attorney's fees and costa, Aa noted, we do not agree with Rapuwal'e Contention chat the employer should automatically be Fegarded as the loser cn appeal if ie fails to obtain the full reduction it requested. In construing a different, attorney's fees statute, the Hawai'i Supreme Court has held that “where a party prevails on the disputed main issue, even though not to the extent of hie original contention, he will be deened to be the successful party for the pulpose of taxing costs and attorney's fees.” = Haw. 608, 620,575 P20 869, 679 (1978). However, we believe the LIRAB may consider the position taken’ by the employer on appeal as a factor in its determination of -12- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter whether the exployer 1 the loser and has achieved a Gubstantial reduction in the award Id, at 318-19, 196 P.3d at 320-21 ‘The ICA entered its judgment on appeal on Decesber 8, 2008. On January 23, 2009, Kapuwai timely filed his application for a writ of certiorari. The City filed a response on February 6, 2009. This court accepted Kapuwai's application on March 3, 2009. TI. STANDARDS OF REVIEW A. Agency Decisions Appellate review of the LIRAB's decision governed by HRS § S1-14(g) (1993), which provides: Upon review of the record{,] the court nay affirm the decision of the agency of Femand the case with instructions for further proceedings; or it may reverse or modify 0 Secision and order if the substantial rights of the petitioners may have been prejudiced Because the administrative findings, conclusions, decisions, or orders are (1) tm violation of constitutional or statutory provisions; or (2) Envexcess of the statutory authority or jurisdiction of the agency: oF (3) made upon unlaweul procedures oF (a) Affected by other error of las (5) Clearly erroneous in view of probative, and substantial evidence on the Whole record; oF (6) Arbitrary or capricious, oF Characterized by abuse of discretion or Clearly unwarranted exercise of Siscretion Under HRS § 91-14(g), conclusions of law (Cots) are reviewable under subsections (1), (2), and (4); questions Fegarding procedural defects are’ reviewable under Subsection (3) A.CoL is not binding on an appellate court and is freely Feviewable for correctness. Thus, the court reviews Cols de nove, under the right /wrong standard. a1. *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Tam_v. Kaiser Permanente, 94 Hawai'i 487, 494, 17 P.34 219, 226 (2001) (citations, original brackets, and ellipsis omitted) (format altered) . B. Rineness It is axiomatic that ripeness is an issue of subject matter jurisdiction. ‘whether a court possesses subject matter jurisdiction is a question of law reviewable de novo.” Kaho'chanchano v. Dep't of Human Serve,, 117 Hawai'i 262, 281, 178 P.3d 538, 557 (2008) (citation omitted). III. Iscusston As previously indicated, the City contends on application that the ICA erred in: (1) ruling "that it was necessary to remand this case for the [LIRAB’s] determination of a [PPD] award based on an impairment of [Kapuwai‘s) great toe’ and (2) concluding that “an employer is regarded as the loser on appeal if it fails to obtain a substantial reduction of the compensation award.” At the outset, we hold that the City’s contention regarding remand to the LIRAB is without merit inasmuch as we agree with the ICA’s rationale supporting its ultimate conclusion that (1) Kapuwai’s case should be remanded to the LIRAB for a determination of a PPD award based on the impairment of Kapuwai’s great toe and that, (2) as between the awards for the great toe and the whole person, Kapuwai is entitled to the greater. Kapuwai, 119 Hawai'i at 311, 196 P.3d at 313. However, we are concerned about the -16- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter liberty taken by the ICA to provide guidance with respect to HRS § 386-93(b) (dealing with liability for attorney's fees and costs) in light of its decision to remand the case to the LIRAS for further proceedings. As indicated above, the ICA stated that it would not ‘decide’ the issue whether Kapuwai was entitled to attorney's fees and costs because "(t]he determination of whether the city is the loser of its appeal to the LIRAB under HRS § 386-93(b) must be based on the final decision of the LIRAB,* which decision will presumably be issued after remand. Kapuwai, 119 Hawai'i at 313, 196 P.3d at 315 (citation omitted) Nevertheless, the ICA, in its opinion, set forth *guidance on how to interpret HRS § 386-93(b)," id., which, in our view, renders that portion of the opinion advisory because the issue of attorney’s fees and costs was not ripe for decision. preliminarily, we acknowledge that neither party has challenged the advisory nature of the ICA’s opinion, ive., that the issue of attorney's fees and costs was not ripe for decision. However, we are equally cognizant that this court has previously stated that, (uIbile the courts of the state of Hawai't are not bound by a "case of controversy" requirement, we Ronetheless recognize that the “‘prudential rules’ of judicial self-governance ‘founded in concern about the Proper -- and properly Iinived =~ role of courts ina Senoeratic society" are alvays of relevant concern. ‘Life of the Land v. Land Use Comission, 63 aw. 166, 172, 625 Pid 431, 438 (1981) (citations omitted). For even in She absence of constitutional resscictions, courte must stil) carefully weigh the wisdom, efficacy n1s- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter State v. Fields, 67 Haw, 268, 274, 686 P.24 1379, 1385 (1984) (emphasis added) (footnote and brackets omitted) Additionally, we have previously indicated that, in ‘the absence of ripeness,” appellate courts are ‘without jurisdiction to consider (the) appeal.’ State v, Moniz, 69 Haw. 370, 373, 742 P.24 373, 376 (1987) (holding that ‘appellate courts are under an obligation to insure that they have jurisdiction to hear and determine each case” and, “because of the absence of ripeness and standing, (this court was] without jurisdiction to consider [an] appeal") .* Moreover, it is well-settled in this jurisdiction that, *[ilf the parties do not raise the issue [of a lack of subject matter jurisdiction), a court sua sponte will.* Tamashiro v, Dep’t of Hunan Servs., State of Hawai'i, 112 Hawai'i 388, 398, 146 P.34 103,113 (2006) (emphasis added) (citations omitted). “when reviewing . . . whether the lower court has jurisdiction, four appellate courts] retain jurisdiction, not on the merits, but only for the purpose of correcting the error in jurisdiction.” + tn the federal court systen (which -- unlike the ICA and this court -- is bound by the federal constitution’s article IIT cage and Controversy requiresent), if i# well-established that Ripeness is nore than a nere procedural question: it is determinative of jurisdiction: ff a claim is unripe, federal courta lack subject matter jurisdiction and the complaint must be dismissed. This deficiency nay be raised ‘Ha sponte if not raised by the parties: ‘Souther Pec. Transp. Co. v. City of os Anaeles, 922 F.2d 498, S02 (9th cir. 1990), cart. denied. 5020.5, 943 (1991) (citation omitted) -16- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Ad, (citation, internal quotation marks, and original backets omitted). Thus, we may properly raise the issue of ripeness sua sponte and, additionally, retain jurisdiction for the limited purpose of correcting the ICA‘s error in jurisdiction. In Light of the ICA’s remand, the LIRAB has yet to make a final decision on the underlying worker's compensation claim. As such, any determination whether the employer loses" and, thus, is required to pay attorney’s fees and costs is premature, iie., not ripe. Accordingly, we conclude that, inasmuch as there is no current “controversy” over attorney's fees and costs, the ICA’s issuance of an advisory opinion on an unripe issue implicates concerns “about the proper -- and properly limited -- role of courts in a democratic society" and contravenes the “prudential rules of judicial self-governance." Fields, 67 Haw. at 274, 686 P.2d at 1385. The dissent, however, disagrees with our conclusion inasmuch as it believes that ‘this court has also issued advisory opinions in the past* and that the majority in this case has not *explain[ed] why we may issue advisory opinions and the ICA. . . cannot.* Dissenting op. at 1, 3. In support of its argument, the diss points to a number of cases wherein this court has provided guidance to the trial courts on renand. Although the dissent is correct, it overlooks an important distinction between the cases it cites and the case at bar. Specifically, in the cases cited by the dissent, this -17- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter court provided guidance to another court, ive, an entity within the same branch of government; whereas, in the instant case, the ICA provided guidance to the LIRAB, an administrative agency within the coequal executive branch of governnent, which, as discussed more fully infra, raises serious concerns regarding separation of powers, judicial interference, and prenature adjudication. In the context of the premature review of administrative decisions, we have atated that: and the traditional reluctance of courts to apply injunctive and Geclaratory renedies to administrative determinations ip Eo prevent courts, through avoidance of premature inlatrative boll ‘Protect the agencies from judicial interference until an administrative decision has been formalized and its ‘chal ‘Thus, prudential rutes of judicial self-governance founded in concern about the proper =~ and properly Limited ~~ role of courts in a democratic socket considerations floving from our coequal and coexistent system of government, ictate that we accord these Charged with drafting and adsiniatering our laws a reasonable opportunity to craft and enforce then in a manner that produces @ lawful result Save_Sunset Beach Coal, v, City & County of Honolulu, 102 Hawai'i 465, 483, 78 P.3d 1, 19 (2003) (emphases added) (format altered) (citations, internal quotation marks, and original brackets omitted). In our view, the foregoing rationale clearly recognizes the separation of powers doctrine as it relates to the adjudication of matters reserved for administrative agencies in the other branches of government In other words, the administrative agency of a separate, ne  FOR PUBLICATION * ** in West’s Hawai‘i Reports and the Pacific Reporter coequal branch of government should be accorded the opportunity to first decide and enforce its own decisions without the premature interference by the judiciary. None of the cases cited by the dissent involve this court's issuance of an advisory opinion providing guidance to an administrative agency or entity within the executive or Legislative branches or within county government, In fact, this court, in Save Sunset Beach, declined to issue an opinion regarding challenges to a proposed use of the county zoning istrict because the issue was not ripe. 102 Hawai" at 482- 83, 78 P.3d at 18-19, Likewise, the ICA, in Bremer v, city & County of Honolulu, 96 Hawai'i 134, 28 P.34 350 (App. 2001), refused to decide a constitutional challenge to a county zoning ordinance because the ordinance had not yet been implemented, and the issue was, therefore, again not ripe for adjudication. Id, at 143-44, 28 P.34 359-60. tmplicit in these cases is the demonstration of the appellate courts exercising restraint and jot prematurely delving into areas committed to the other branches of government -- a principle recognized by this court in Fields. In Fields, this court was faced with the issue whether a condition of probation contravened the defendant's constitutional right to be free of unreasonable searches and seizures. 67 Haw. at 271-73, 686 P.2d at 1384-85. Specifically, the probation condition imposed upon the -19- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter defendant made her ‘subject at all times during the period of her probation to a warrantless search of her person, property and place of residence for illicit drugs and substances by any law enforcement officer including her probation officer." Id. at 273, 686 P.2d at 1364, The Fields court recognized that, inasmuch as the government had not yet made an effort to enforce the particular condition of probation, the ripeness doctrine, if strictly applied to the situation at bar, would “preclude an adjudication of the issue raised on appeal.” Id. at 275, 686 P.2d at 1386, Nevertheless, this court determined that *[oJther important considerations” led it ‘to believe [it was] confronted with the exceptional case demanding attention in advance of an actual attempt by the government to enforce the condition." Id, Specifically, this court declined to apply the ripeness doctrine inasmuch ae: (1) “the deprivation of a fundamental right may not be lightly regarded, even when exacted as part of the price of conditional release"; and (2) the probationary condition at issue was a creature of judicial ingenuity and that, therefore, its "inquiry would focus ical acti n rt not_be venturing ‘into areas committed to other branches of government.‘ Id, at 275-76, 686 P.2d at 1386 (citation omitted). Based on the foregoing, the Fields court concluded that it was appropriate “to act before there [was] an attempt -20- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter to enforce the sentencing court’s order, since [its] bounden che prevention of i 2 mi: in situations where resort to appeal may be otherwise foreclosed." Ia. Indeed, the guidance provided by this court in nine of the eleven cases cited by the dissent focused on the propriety of judicial action or the deprivation of constitutional rights, and none ventured into areas committed to other branches of government. see, e.g., State v. Nichols, 111 Hawai'i 327, 340, 141 P.3d 974, 987 (2006) (providing guidance to the circuit court on remand regarding jury Anstructions); Courbat v, Dahana Ranch, Inc., 111 Hawai'i 254, 141 P.34 427 (2006) (providing guidance to the circuit court regarding the correct application of a statute on remand); KG Corp. v. Kim, 107 Hawai": 73, 110 P.3d 397 (2005) (providing guidance to the circuit court on remand that statute did not violate the due process or equal protection clause); Gap v. Puna Geothermal Venture, 106 Hawai'i 325, 104 P.34 912 (2004) (providing guidance to the circuit court on remand with regard to setting of appropriate sanctions pursuant to Hawai'i Rules Procedure Ri 16, which rules are promulgated by the suprese court); Ditto v. McCurdy, 102 Hawai'i 518, 78 P.3d 331 (2003) (providing guidance regarding writs of execution and the applicability of the district court rules, which are also promulgated by the supreme court); state vw. woe *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Wakicaka, 102 Hawai'i 504, 78 P.34 317 (2003) (providing guidance to the circuit court regarding evidentiary matters, iie., the exclusion of an expert witness); state v, Culkin, 97 Hawai'i 206, 35 P.34 233 (2001) (addressing evidentiary matters co provide guidance to the circuit court on renand); state v Mahoe, 89 Hawai'i 284, 972 P.24 287 (1998) (providing guidance to the circuit court on remand regarding a jury instruction! Skate v. Kauhi, 86 Hawai'i 195, 948 p.24 1036 (1997) (addressing unripe evidentiary and constitutional issues). wien rn ject to the two remaining ci 8 cited by the @issent, to wit: Bil Lounge Operation Co., Inc, v. Liguor Commission of City & County of Honolulu, 118 Hawai'i 320, 350, 189 P.34 432, 462 (2008), and In ce Water Use Permit Applications, 105 Hawai'i 1, 12, 93 P.34 643, 654 (2004), we fail to see how those cases constitute advisory opinions on unripe issues. In both cases, this court decided issues squarely presented and necessary for a full and complete @iscussion of its ultimate holding in each case. It did not address any unripe issues or provide guidance to a separate government agency Based on the foregoing, we believe the dissent’s citations to the above cases as support for its position that the ICA's advisory opinion in this case should be allowed to stand because this court has also issued advisory opinions in the past is unavailing. This court's issuance of previous -22-  FOR PUBLICATION * ** in West's Hawai'i Reports and the Pacific Reporter advisory opinions, as cited by the dissent, is consistent with this court’s prior case law and practice of limiting its guidance to entities within the judicial branch while refraining from doing so in cases involving a separate governmental entity. We agree, however, with the dissent that the determination whether it is the LIRAB or the appellate courts that’ awards attorney’s fees and costs depends on when the appeal is *final.* Dissenting op. at 4-5 (citing Lindinha, 104 Hawai'i at 171, 86 P.3d at 980 (stating “we read [HRS § 386-93(b)] as assessing fees and costs against an employer if the employer loses the final appeal- (emphasis added))). In other words, "the statute plainly authorizes assessment of attorney's fees and costs against the employer if it loses, Whether the case ends in the LIRAB or this court." Id. (emphasis added). By providing that “the costs of proceedings of the appellate board or the supreme court of the state, together with reasonable attorney's fees shall be assessed against the employer, if the employer loses," HRS § 396-93 (b) (emphasis added), the legislature clearly contemplated that proceedings could end and be final at the LIRAB-level, thereby empowering the LIRAB to make an award of attorney’s fees and costs "if the employer loses.” We disagree, however, with the dissent’s position that it was permissible for the ICA to provide guidance to the -23- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter LIRAB because “the plain language of HRS § 386-93(b) applies to the judicial branch of the government in the same manner as the executive branch." Dissenting op. at 5. The fact that the statute applies to both the judicial and executive branches does not render it permissible for the judicial branch to interfere with the decision-making process of an executive branch agency simply because the statute bestows the same decision-making authority upon the judicial branch. Because an appeal from a decision of the director can, depending on the circumstances, becone *final* at the LIRAB-level or the appellate-level, the statute mist necessarily contemplate those circumstances. In the present case, the appeal at the LIRAB-level was not final because Kapuwai appealed to the ICA and the city further appealed to this court. Likewise, the appeal at the ICA and this court was also not ‘final* for purposes of attorney’s fees and costs in light of the remand to the LIRAB for further proceedings regarding Kapuwai’s PPD award. once the LIRAB makes such determination and, if no further appeal is taken, then, the "final appeal’ would have occurred at the LIRAB-level, empowering it to make the requisite determination and award of fees and costs. By opining on the application of the subject statute, the ICA invaded the province of the LIRAB to make its own independent assessment as to whether the City, under HRS § 386-93(b), is the “lose[r]” for purposes of an -24- *** ROR PUBLICATION * ** in West’s Hawai'i Reports and the Pacific Reporter award of attorney's fees and costs. As such, the ICA impermissibly ventured into an area legislatively committed to the LIRAB and, thus, implicates separation-of-powers concerns that were not present in the decisions cited by the dissent. Finally, the dissent also maintains that, if ‘the ICA lacked jurisdiction because the attorney's fees and costs issue is unripe, then it logically follows that we too lacked jurisdiction to issue the advisory opinions that we did.* Dissenting op, at 4 (citation omitted). However, as discussed fupra, the guidance provided by this court in the cases cited by the dissent (1) focused on the propriety of judicial action or the deprivation of constitutional rights, (2) aid not venture into areas committed to other branches of government, thereby obviating any separation-of-power concerns, and (3) were consistent with its ‘bounden duty* to prevent judicial mistakes or the reoccurrence of a judicial mistake on remand. Eields, 67 Haw. at 276, 686 P.2d at 1386. In sum, we conclude that the ICA’s opinion regarding the issue of attorney's fees and costs was not ripe for decision and constitutes an advisory opinion aki to the issuance of an opinion where there is no subject matter jurisdiction. voniz, 69 Haw. at 373, 742 P.2d at 376. more importantly, the advisory portion of the ICA’s opinion constitutes inappropriate judicial interference with an administrative decision of an entity within a separate, coequal -25- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter branch of government that has not been formalized and has not yet affected the challenging parties in a concrete way, Save Sunset Beach, 102 Hawai'i at 483, 78 P.3d at 19, thereby implicating separation-of-powers concerns. Consequently, we hold that the ICA's exercise of appellate power in this case constitutes error that must be corrected by this court by vacating the advisory section of the ICA’s opinion, IV. CONCLUSION Based on the foregoing, we vacate the part of the ICA's opinion, specifically section IT, that deals with the issue of attorney's fees and costs. Paul K. Hoshino, Deputy Corporation Counsel, for petitioner/employer-appellee, . self-insured fon v.2—_ Herbert R. Takahashi and Danny J. Vasconcellos (of ‘Takahashi Vasconcellos & Covert), for respondent/ claimant-appellant -26- 

6510f185144c71bb2fe002ae866c044295e29697a32adc52f4bf50c7f1719259

2009-07-16T00:00:00Z

cf42f812-b491-49c7-8ab5-a2480608353c

State v. Mark

hawaii

Hawaii Supreme Court

3 3 NO. 26784 = & ae ° IN THE SUPREME COURT OF THE STATE OF HAWA\ = = 2 STATE OF HAWAI'I, Respondent /Plaintiff-Appell. e SHANE MARK, Petitioner/Defendant-Appellant (NO." 26784; CR. NO. 03~1-0495) STATE OF HAWAI'I, Respondent /Plaintift-Appellee SHANE MARK, Pet itioner/Defendant~Appel lant (NO. 26785; CR. NO. 03-1-0496) CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NOS. 03-1-0495 @ 03-1-0496) (By: Acoba, J., for the court’) The Application for Writ of Certiorari filed on August 27, 2009 by Petitioner/Defendant-Appellant Shane Mark 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 2009. FOR THE couRT: LRRD xT is ‘Associate Justice 8 Dwight C.H. Lum, on De oe of the application for SORE” petitioner /defendant- appellant. + Moon, C.J., Nakayama, Acoba, Duffy, JJ.» and Circuit Judge Kim in place of Recktenusld, Je, recused. aa 

867e4bf72fd5cb1122c6d0416b0d36f79bbd833425792cec92d9f5adb4056c26

2009-10-08T00:00:00Z

84dd0923-a6a8-4068-95b0-4d42c10757d9

In re the Arbitration Between United Public Workers, AFSCME, Local 646, AFL-CIO v. State of Hawaii, Department of Public Safety, WCCC

28858

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 28858 IN THE SUPREME COURT OF THE STATE OF HAWAI'I IN THE MATTER OF THE ARBITRATION BETWEEN UNITED PUBLIC WORKERS, AFSCME, Local 646, AFL~Czp, Union-Appellant, 3 C ed fear Bi), and DEPARTMENT OF PUBLIC SAFETY,” of Cherene Makua re: whether Makua rea: 10:8 Ht Ocha gyy oats STATE OF HAWAII, (Griev. for failing to return to work 15 days after T; UMOP); Sec. 1, 11, 14, 38, 58; BA-06-09 (2006; Employer-Appellee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (8.B, NO. 07-1-0286) FOR WRIT OF (By: Recktenwald, J. for the court’) Petitioner/Union-Appellant United Public Workers, AFSCNE, Local 646, AFL-CI0‘s application for writ of certiorart 2009, is hereby rejected. savai'd, gune 30, 2009. (rrr Honolulu, FOR THE COURT: SEAL ‘ Mert © fleditemonkd Ceoeul Associate Justice filed on May 18, DATED: * considered by: Moon, C.J., Nakayana, Acoba, Duffy, and Recktenvald, aa, 

7851ba24e17aa4e6dfcb102b145e336edd050df7bc73309013a7c6619e96c4ad

2009-06-30T00:00:00Z

f4ca59af-11f2-4cb9-b58e-75bc9a7cf3fe

State v. Cho

hawaii

Hawaii Supreme Court

No, 28349 1 STATE OF HAWAT' IN THE SUPREME COURT OF “O34 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD CRIMINAL NO. 06084084) RU (By: Nakayama, J., for the court®) Petitioner/Defendant-Appellant’s application for writ of certiorari filed on June 25, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, July 22, 2009. FOR THE COURT: Basia Coca Asaociate Justice Dwight C.H. Lum and Reginald P. Minn for petitioner /defendant-appellant on the application ‘considered by: Moon, C.J.» Nakayama, Acoba, and Dutty, JJ., and circuit Judge Nishimura, in place of Recktenwaid, J., recused. 

88843dfd1fd9f3da1be8e88ab561a5ed599ef3dd5fea7ee50905b89ec9b85e98

2009-07-22T00:00:00Z

de955602-6841-45b2-9a41-619e2e5fbc40

County of Kauai v. Office of Information Practices, State of Hawaii

29059

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 29059 IN THE SUPREME COURT OF THE STATE OF HAWAI'T COUNTY OF KRUA'Z, KRUA'T COUNTY COUN BILL “KATPO" ASING, JAMES KUNANE TOKIOKA, JAY FURFARO,, SHAYLENE. SERE~CARVALHO, DARYL, Wl TANESHIRO, MEL. RAEOZO, JOANN A. YORTHURA, a PETER A. NAKAMURA in their official. capacities Respondents/Plaintiffs-hppellees, Be aane LO ka eznne oaee OFFICE OF INFORMATION PRACTICES, STATE OF HAWAII, ‘and LESLIE H. KONDO, Director of the Office ol Information Practices, in his official capacity, Petitioners /Defendants-Appellants. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIVIL No. 05-1-0088) WRIT OF CERTIORARI (By: Duffy, J., for the court") Petitioners/Defendants-Appellants’ application for weit of certiorari, filed on May 14, 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, June 23, 2009. Paul 7, Tsukiyana, FOR THE COURT: (Fr a Cathy L. Takase, and Sennifer 2, Brosks, (of Office of information Gone Rely « SEAL Practices), and Aasociate sustice Bo or Gail ¥. Cosgrove and Kunio Kuwabe (of Hisaka Yoshida & Cosgrove) for petitioners /defendants~ appellants on the application © Considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and céreust Judge Hara, in place of Recktenwald,, J-, recused, Alfred B. Castillo (of Office of the County Attorney, County of Kauai) David J. Minkin and Becky T. Chestnut (of McCorriston Miller Mukai MacKinnon LLP) for respondents /plaintiffs- appellees on the response 

03c8d1228806f91fc03c391bc0bfab59adc7b9c31c2f08c0398b9e0df8a39afc

2009-06-23T00:00:00Z

28b178b7-c2e1-40d2-9390-8ee55f4230aa

Sato v. Broderick

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 29925 ‘THE SUPREME COURT OF THE STATE OF HAWAI'I MELANIE SATO, Petitioner, . THE HONORABLE MICHAEL F. BRODERICK, JUDGE OF THE’) COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, MIKE A. TROUT, Respondents ORIGINAL PROCEEDING (FC=DA NO. 09-1-1202) ORDER (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner Melanie Sato and the papers in support, it appears that petitioner can file a protective notice of appeal to preserve her right to appeal and petitioner can obtain relief from the July 2, 2009 temporary protective order at the July 27, 2009 hearing on the motion for protective order. Therefore, petitioner is not entitled to extraordinary 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 a lack of alternative means to redress adequately the alleged wrong or obtain the requested action.). Accordingly, IT 18 HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, July 13, 2009. pin 2 lO raeny arc Poti MAE Me ectinhS 

7bc248483e260f4264e28d1d6774e1d29c5a001f804d68c16139e6fd413428c4

2009-07-13T00:00:00Z

71d722c0-ec5e-4bec-840e-e7cc333824a2

State v. Belen

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 28925 IN THE SUPREME COURT OF THE STATE OF HAWAT'T CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 06-1-0500) (By: Recktenwald, J. for the court") Petitioner/Defendant-Appellant Antonio Keoni Belen's application for writ of certiorari filed on June 10, 2003, is hereby rejected. DATED: Honolulu, Hawai'i, July 10, 2008 FOR THE COURT: Pine E Peeckslnve ane E ae | Associate Justice 4 © L oe ws | Nakayama, Acoba, Ouffy, and Recktenvald, 

97cf574094371387c8b366892f2fe3a402e5d9bd573ccfca04d75671f1d12556

2009-07-10T00:00:00Z

ece6b09e-742e-49c8-ba01-aa801debaa23

Grandinetti v. U.T.M.F. Garcia

hawaii

Hawaii Supreme Court

No. 29308 IN THE SUPREME COURT OF THE STATE OF HAWAT'T FRANCIS A. GRANDINETTI Ir, Petitioner /Plaintiff-Appellant, U.T.M.F. GARCIA, FDC/SCC, et al Respondents /Defendants-Appellees. APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (crv. NO. 08-1-0190) ERT (By: Moon, C.J., for the court") onDER Petitioner/plaintiff-appellant Francis A. Grandinetti's “certiorari Review Briefing," filed May 28, 2009, which we deem as an application for a writ of certiorari, is hereby rejected. DATED: Honolulu, Hawai‘i, June 12, 2009. von me ceo SE « SEAL *] fe dustice 5 %, 5 ee oes” 3 * considered by: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, a. 

750f57ecbd895ca1a0140b7b78296b8248e8d0f77b4e7e89f4d8f69173f2d5c7

2009-06-12T00:00:00Z

3efe1c3c-3742-4c2d-9726-5e244fa2fa74

Blaisdell v. Trader

hawaii

Hawaii Supreme Court

No. 29895 IN THE SUPREME COURT OF THE STATE OF HAWAT RICHARD BLAISDELL, Petitioner, ‘THE HONORABLE ROM A. TRADER, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAT'I, Respondent ORIGINAL PROCEEDING (CIVIL NO. 04-1-1455) (y: Moon, C.J., Nakayama, AGoENS Dufty, and Recktenwald, 3.) Upon consideration of the petition for a writ of nandanus filed by petitioner Richard Blaisdel! and the papers in support, Lt appears that: (2) relief from the Nay 22, 2008 judgment entered sn Civit Ho. 041-1455 is available to petitioner in the cizcult court pursuant to HRCP 60(b) and (2) relief from respondent as presiding Judge in Civil No, 4-1-1455 1s available to petitioner in the circuit court pursuant to HRS § 601-7 (1993 and Supp. 2008). Therefore, petitioner 1s not entitled to extraordinary relief. See Kema v. Gaddis, 91 Hawai‘ 200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus is an extraordinary renedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or cbtain the requested action.) Tt further appears that Lssuance of a declaratory judgment on the constitutionality of Act 75, 26th Leg., Reg. aa Sess. (2009) is not within the original jurisdiction of the suprene 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, July 7, 2009. Gore Reuse ONO a Veron € Suey Oy 4 Pet O See ttn eet 7 

22fdfc7b1a2fa88a5cc7691ed35b46cc31f6f6e106ed0701814535052817bb49

2009-07-07T00:00:00Z

93002f3e-d224-428e-8bad-d0f85ae5c514

Williams v. Aona. ICA mem.op., filed 12/10/2008 [pdf], 119 Haw. 334. Application for Writ of Certiorari, filed 03/27/2009. S.Ct. Order Accepting Application for Writ of Certiorari, filed 05/06/2009 [pdf].

121 Haw. 1

hawaii

Hawaii Supreme Court

+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HAWAT'T ---000--- CEDRIC C. WILLIAMS, Respondent /Petitioner-Appellee ROBERT AONA, Petitioner/Respondent-Appellant No. 28691 2 jf 2 rc CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 2 & (CIVIL CASE NO, 18S07-1-353) 5 = oc a JUNE 19, 2009 MOON, C.J.) NAKAYANA, ACOBA, AND DUFFY, Jd.» AND CIRCUIT JUGGE CHANG, ASSIGNED BY REASON’ OF VACANCY QPINION OF THE COURT BY DUFFY, J. Petitioner/Respondent-Appellant Robert Rona (Aona) (application) filed a timely Application for Writ of Certiorari urging this court to review the December 30, 2008 judgment of the Intermediate Court of Appeals (ICA) based on its Memorandum Opinion in Williams v. Aona, No, 28691, 2008 WL 5182933 (App. Dec. 10, 2008). The ICA’s Memorandum Opinion affirmed the district court of the first circuit's! (district court) July 17, 2007 Order Granting Petition for Injunction Against Harassment (injunction order). * the Honorable Gerald #. Kibe presided.  + FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** In his Application, Aona argues that the ICA gravely erred in affirming the injunction order because: (1) “The ICA incorrectly held that the district court had jurisdiction over Williama’s Petition [for a temporary restraining order and injunction against harasement].” (2) “The ICA incorrectly affirmed the district court's injunction imposing a distance restriction on Aona while in the workplace.” (3) “The ICA incorrectly affirmed the district court's refusal to admit and consider evidence of Willian’ prior criminal conviction.” (4) “the ICA incorrectly affirmed the district court’s refusal to admit and consider evidence of the (Department of Environmental Services} workplace rules.” We accepted the Application for the Limited purpose of correcting an error by the ICA when it affirmed the district court's jurisdiction on the basis of the doctrine of preemption. We agree with the ICA’s Memorandum Opinion in all other respects. ‘BACKGROUND Aona and Cedric Willians (Williams) aze both employees of the City and County of Honolulu (city and County) Department of Environmental Services (DES), Honolulu Yard. Aona works for DES as a “refuse collection supervisor.” Aona’s duties include “conducting periodic” post-checks on refuse vehicles, “like snap ‘+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** inspections.” A post-check is an examination of the refuse truck that occurs at the end of a shift. During a post-check, the driver is responsible for examining certain parts of the truck including the lights, tires, rims, and frame. Conducting periodic post-checks is “not a set duty.” Instead, it is rotated among various supervisors. Williams works for DES as a “crew leader.” A crew leader is responsible for driving the refuse vehicle. After his shift, Williams is responsible for conducting a post-check on his refuse vehicle. A, Retition for Temporary Restraining Order (TRO). on July 3, 2007, Williams filed a petition for Ex Parte ‘Temporary Restraining Order and for Injunction Against Harassment (petition) against Aona. The petition was based on “[rJecent or past act(s) of harassment.” Williams explained that: Saturday June 30, 2007 at approximately 11:55 A.M. Robert Rona pained me on ay left sided chest area causing an imediate sharp pain that required anergency medical treatment at Straub clinic and hospital. 1 was diagnose with a bruised chest. Assault occurred at Honolulu Refuse Collection Yard located at 26 Migdle Street, Honolulu, HT 56815, Police Report was filed and superintendent and refuse collection auninistrater was notified. shen T questioned Robert Aona as to why he did this to me he Fesponded that T am a foolish boy.” I feel that this may be J racial term and he may dislike ne due to ny race of being Ateican Aserican. “I have notified refuse collection Soninistrator that Aobert Aona is causing se psychological Serene due to the fact that he is s larger nan than amy, be may not Like my race snd I fear he may attack me and cause hRe much more severe bodily and psychological harm than Ae Siready has. I feel severely threatened by Robert Aona due to his excessive size. He causes me anxiety when I see him.  +" FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER B. District Court Proceedings on July 17, 2007, a hearing was held in district court, Willians’s testimony Williams testified that on June 30, 2007, after he the brought his refuse truck back to the refuse yard, Aona w supervisor in charge who supervised Williams's post-check of his truck. According to Williams, Aona first helped him check the Lights on the truck and then T parked the truck, got out and then (Aona) stepped back (and) ‘said Start trom wherever you want. So'l started from the front tires, check the lugs; check che rim, going downy Check the frame, going down. I'was dréving the Bulky truck that day. That‘e two back tires, so there's four on one Side, so I"m checking those tires, the rims, check the last ize! ‘As I was going around the truck, he stopped me, (“start fagsin, sow oxplain to me what you doing, {"] and then I said, (wnaer(")” And then 1 (Jyou know what, you Juse gotta write me up because I’m not gonna doa pest-check with yout.) Williams testified that he did not think that it was unusual that Aona was conducting a post-check; rather “{jJust the way he wanted me to do it, to start all over and explain to him what 1’m doing. That’s not right.” After Williams disobeyed Aona’s instructions, he stated that, X went walk to the truck to get my bag, he pushed the door shut. So, T tried to open (it) again, then right there, he palnéd me’on the chest snd aaid [“lyou nothing but a £00113 oy, {*] and I tole(sic) ‘em, ("Jwhat's up with that, you hit mme and you calling me names” (”]  *** FOR PUBLICATION IN WEST'S HAWAL'T REPORTS AND PACIFIC REPORTER * Williams testified that after Ana palned him, he felt “a sharp pain” in his chest and noticed “a mark” on his chest. williams called his union steward and then called the police. Williams completed a police report and informed the police that he wanted to press charges against Aona, The police asked if Willians wanted them to call an anbulance, but Williams told them that he would go to the hospital on his own.’ Williams had his girlfriend drop him off sat the hospital. He was diagnosed with a bruise on his chest and prescribed pain pills. 2. Aona’s testimony On June 30, 2007, Aona testified that he was the supervisor on duty who supervised Williams's post-check of his refuse vehicle. Aona stated that he was dissatisfied with Williams's post-check because Williams had skipped several steps. Rona eventually told Williams “you missed a whole lot. . . [slo let's go back and start where we left off and work our way back hore,” but Willians “totally ignored” Aona. then, Aona said, “I think I'm gonna have to ask you to tell me what you doing because that way, I‘11 know you're doing it.” According to Aona, [Williams] starts saying, (%)1 doing my post-check, I doing my pore-check(*) ‘ahd all he’s doing 48 playing with The lug nuts on the bick th Sot said, (*){Willians), you're forcing me to do this. “I’m giving you's direct order, let's go back to the Front, start over and do the post=check properly like you were taught, ("] and then he stands up and ne goes ("]you Cannot teil me what to do, ("] Teecause) Tam not hie supervisor. “** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** After that, Aona testified that he said (“lyes, (*) T can and will require you to do this. T Malked right hero and (Wilitans) was standing there Looking at me kind of belligerently like, "("]yea cannot. [") “Jwell, 1711 just wait, you know. So, T waited, Tdon't know, lees then a minute, you know, seconds, and Ne hadn't moved, so.1 told him... ["Jlet’s stare here, [*) and he still’ doesn’t move, so I said ["can we do the post Gheck now?(*) At this point, he rushed up to me and he was, he had a glowering look on his face, ne had his dark shades and he’s Puffing Rinself up and trying to be intimidating hen he came. . , too close for my personal space, I put ay hand on his shoulder and went ("Jetop, stop,” =. (we're Sn'that position for five seconds, and I'm thinking £0 myself, okay, great, situation resolved, we're gonna start the post=check: hon he starts, he takes a step back and goes (*}you wen touch me, you wen touch me, ("] and his voice 1s getting Iouder, literally shouting and he starts hopping around in that afea. .- (2)o, 1 backed up to the front of the truck sped out his cell phnd and I thought that was a good ides, 20 1 whipped out hny coll phone and Z called the Base yard office. sss I'm Corned away from hin and I’m shaking my head, ch, this ie a foolish move. He stops his dancing and cones up to me again and goes (vIwhat you wen call ne(") screaming, but he's not really, he stili maintain {sic} safe enough space from se, but he's ‘Screaming at me, ["Iwhat you wen call me, what you wen call Be.("] 1 told "on, (]{Willians}, 1 didn’t cali you Snything.("]. This is when be brings his face so close to my ace Ym taller than him, but he's trying, you koe, do the face, body push and he's’ pushing me, and then I told Yen, {"]back pr {") you know, and he didn’t back up. [njnis is when I put my hand on (his) . . . and I told ‘em, [Tback opr") he didn’t back up. Soy he finally backed up just a Little bit, but it was fgnough for me that 1 disengaged and I walked far’ away, maybe fon fect in front of the vehicle, and at this tine too, "he haa kine’a (sic) backed up to halfway in the body of the truck and ‘ny phone had gotten flipped off at this 6 *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER time, so Z called again (sic] innediately acting supervisor(<] After Aona called the supervisor and asked hin to cone to the yard, Aona claims that he “turn{ed) around and receive [sic] three forearm smashes into [his] sternum. . . from [Williams's] right forearm and it stunned [him], it rocked [his] head back.”? Aona stated that two superintendents were “in sight” and Willians “innediately backed off." However, according to Aona, neither superintendent witnessed Willians’s alleged attack on Aona. Soon after, the police arrived. Aona clains that he voluntarily gave a statement to police detailing Williams's alleged attack on him. Aona also testified that, at the end of the day, he Grove to the Kaiser urgent care clinic where he “was seen and treated for soft tissue damage.” He stated that “I was prescribed ice, ice regime, pain killer, and it was suggested that I have follow-up on gentle massage and was suggested that 1 have follow-up visits and perhaps even counseling for any post- stress that I might have suffered from being attacked.” Aona denied “striking Willians with an open palm or otherwise in his chest area(.]” ® non questioned by the district court, Aona testified that Willians hit him with bis left forearm, because he still had his phone in his right hand! + FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** The District Court's Discussion with Deputy Corporation Counsel About Workplace Management Also present at the hearing was Deputy Corporation Counsel Gary Takeuchi (Takeuchi) representing the employer, the City and County. Takeuchi stated that “we do have an agreement of the parties that in the injunction that might issue in this case, we would not include the place of employment, that the parties are confident that the employer can work out arrangements.” Takeuchi also stated that “the supervisory people that I spoke to strongly believe that they can manage the worksite so there won't be issues . . . whatever geographical standard might be imposed would be difficult to maintain at the work location.” C. The District Court’s Order Granting Williams's Petition for Indunction ‘The district court granted Willians’s petition and filed the Order Granting Petition for Injunction Against Harassment against Aona. The district court found that Williams was more credible than Aona: ME COURT: I have considered the evidence that has been presented during the course of this hearing. have considered all factual issues by the clear and convincing Standard, and I hava made eterninations on igeves of eredibility and, indeed, this case turns on questions of Credibility between Mr. Williams ang Hr. Rona because there are no other percipient witnesses to what happened Between {the tho gentlemen on June 30, 2007, at just before noon at the Honolulu Refuse Division Facility on Middle street iow, I have had during the course of this long hearing fan opportunity to watch both sides while they were making Their statenents. “I've thus been able cbserve their Geneanor, behavior, Listened to what they have said, how  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** they have said it, facial expressions, body language, those Kinds of thinga, and those ail contribute to ny ability te render a determination on the issue of credibility. ow, one thing I do note a2 reflected by my question to Mr. Rota is that during the course of his testizony, he Gis reference touching Mr- WLillans not once, but two times in his initial testinony. How, he endeavored to correct that in response to ay questions by indicating that it was Guring the first tine chat there was any hint of any trouble that Hr, Aona said that Wr. Nilliams approached Mr. Rona that Mr: Aona put out Mis hand to aaintain sone distance \eith Mr, Williams and thus kept his hand, right hand on Mr. Willians’s Lee shoulder for sone time But then, and Le was during this morning's sesaicn, Me. Willians iidicatea that, excuse ne, Mr- Aona said that there was a farther tine when Mr, Miliians cane. forward, got close again to his, We. Aona ssid that he put nig hand on Mg. Williams’ (s} shoulder just Like wae demonstrated earlier, and tome, that's an inconsistency in terme of what Mr. Aana Says happened. It's, it was something that I took Rote of at that point and questioned Me. Aona about it, but Pidon’t feel confortable in the way that Hr. Rona responded. And further, in the way in which Mr. Aona again proceeded with nis testimony in comparison to the very clear Gnd firm testinony, very straightforward testinony of ME Willians, 11 of this leads me to conclude that Mr. Williams! (s] version of events is sore credible than that of Be. Aone. As a result, the court found that Williams had established by clear and convincing evidence that Acna had harassed him according to the definition in Hawai'i Revised Statutes (HRS) § 604-10.5(a) (1) (1993 & Supp. 2008) and that a temporary restraining order was warranted.’ > Rs § 604-10.5 grants the district court the power to enjoin and temporarily restrain harassment. it states, in relevant part “Harasonent” means (2) Physical harm, bodily injury, assault, or the thr: imminent physical harm, bodily injury, oF assault (+) of (b) The district courts shall have power to enjoin oF prohibit or temporarily restrain harassnent. *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER ** The order required Aona to not intentionally be within fifteen feet away of Williams at any time for three years. There was no separate distance requirenent for the work site. D. IcA’s Memorandum Opinion The ICA affirmed the district court’s Order Granting Petition for Injunction Against Harassment. Williams, 2008 WL 5182933, at *10. (c) Any person who has been subjected to harassment may petition the district court of the disteset in which the Petitioner resides for a tenporary restraining order and an Tnjuncelon from further harassment. (a) A petition for relief from harassment shali be in writing and shall allege that a past act or acts of harasssent may have occurred, or that threats of harasenent ake it probable that acts of harassment may be immineney {and shall be accompanied by an sffiaavit mage under oath or ‘Statement made under penalty of perjury stating the specific facts snd circumstances fron whieh gellef 1s seughe. w (The parties naned in the petition may file or give oral responses explaining, excusing, Justifying, or denying the alleged act or acts of harassment. The court shall Fecelve all evidence that io relevant at the hearing, and nay make independent inquiry. LUTE the court finds by clear and convincing evidence that harasenent as defined in paragraph (1) of that definition exists, it nay enjoin for no sore than three yes further harassment of the petitioner, or that janent as defined in paragraph (2) of that definition yxists, it shall enjoin fer no more than three years further harasshent of the petitioner) provided that thi® paragraph Shall not prohibit! the court from issuing other injunctions Against the naned parties even if the tine co which the Injunction applies exceeds total of three yeare, HRS $ 604-10.5(a) (1), (b)=(d), (4). 10 ‘*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** TI, STANDARDS OF REVIEW A. durisdiction Whether the district court had jurisdiction over Williams's petition “presents a question of law, reviewable de novo.” See Hawaii Med, Ass'n v. Hawaii Med, Serv, Ass'n, Inc., Hawai'i 77, 90, 148 P.3d 1179, 1192 (2006). The Issuance of a TRO With respect to the issuance of a TRO, a relief in equity, the relief granted by a court in equity ie discretionary” nd wilt not be overturned on review unless the court abused its Giscretion, . A court abuses its discretion whenever it exceeds the bounds of reason of disregarde roles cx Principles of law or practice to the substantial detriment, bea party. In re Guardianship of Carlsmith, 113 Hawai'i 211, 223, 151 2.34 692, 104 (2006) (internal quotation marks, citations, brackets, and ellipses in original omitted). TI. DISCUSSION The central issue in this Application is whether the district court properly exercised jurisdiction over Williams's petition or whether Williams was first required to exhaust his contractual renedies under the collective bargaining agreement (CBR) between the City and County and United Public Workers AFSCME, Local 646, AFL-CIO. Aona correctly clains that the ICA erred when it affirmed the district court’s jurisdiction on the basis of the doctrine of preemption. However, we hold that the @istrict court properly exercised jurisdiction over Williams's petition for the reasons discussed below, nu  FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** The District Court Properly Exercised Jurisdiction over Williams's Petition for an Ex Parte Temporary Restraining Order and For Injunction Against Harassment, In addition to filing the petition for a TRO, williams filed a grievance against Aona with the City and County in the form of a “workplace violence incident report.” At the hearing, the district court asked Aona if he wanted to make a motion to postpone the hearing until after any “personnel action” was taken. Aona chose to proceed with the hearing. On appeal to the ICA, Aona argued that the district court did not have subject-matter jurisdiction over Williams's petition because the conduct Williams complained of was an employment matter. According to Aona, employment matters were governed by the CBA and Williams had not exhausted his adninistrative remedies under the CBA. Aona claimed that: In his petition for a TRO and injunction, Willsans essentisily makes the complaint nis employer, 08S, violated ction 46.02a of the CBA, which requires DES to provide a violence-free workplace by providing the means snd methods to prevent the risk of violence to employees, such (as) Witllans. Under the CBA, however, Killiams was required to ‘Ive that ‘complaint pursuant to the grievance procedure t forth in section 15 of tne CBA. In other words, Aona argued that Williams should have waited for the results of the workplace investigation into the grievance he filed against Aona before filing his petition with the district court. ‘The ICA concluded that the district court had subject matter jurisdiction over the hearing. The ICA stated that a2 *** FOR PUBLICATION IN WEST'S HAWATLREPORTS AND PACIFIC REPORTER *** “preemption of state court jurisdiction [by a contract grievance provision in a collective bargaining agreement] is not unlimited under the National Labor Relations Act (NLRA) or Hawai'i policy.” Williams, 2008 WL 5182933, at *4. Specifically, the ICA concluded that Williams's interest in protection from “outrageous conduct, threats, intimidation, and words” was “not diminished or preempted because it is related to matters contained in a CBA grievance process.” Id, The ICA further concluded that “Acna failed to demonstrate that a written remedy was available under the CBA grievance procedure that could protect Williams from future harassment, Because Aona did not demonstrate that the CBA provides a reasonable alternative to an injunction order, the presumed goal of such a policy is not applicable.” Id. (footnote omitted). In his Application, Aona argues that the ICA erred when Ae concluded that the district court had jurisdiction over Williams's petition because “the ICA erroneously confused the doctrines of preemption and exhaustion, failed to conduct any analysis of the exhaustion issue, and erroneously concluded that the CBA provides no remedy to Williams.” Although Aona is correct in his assertion that the ICA exred in its reliance on the doctrine of preemption, the district court had jurisdiction over Williams’s petition based upon the following analysis. 3  +8 FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER Subject-Matter Jurisdiction Aona failed to raise the exhaustion of remedies issue in the district court. “As 2 general rule, if a party does not raise an argument at trial, that argument will be deemed to have been waived on appeal; this rule applies in both criminal and civil cases.” State v, Moses, 102 Hawai'i 449, 456, 77 P.3d 940, 947 (2003). However, Aona argues that Williams’s failure to exhaust his administrative remedies deprived the district court of subject-matter jurisdiction. As we have stated, [At is wolt-established . . . that Lack of aubject matter Jurisdiction can never be waived by any party at any tin in re Application of Rice, €@ fw, 324, 913 F.2d 426 (1996). Th setting forth the absolute necessity that a court possess subject matter jurisdiction, this court rule “the lack of jurisdiction over the subject matter cannot be waived by the parties." If the parties do not raise the issue, "a court iy for unless jurisdiction’ of the court over the subject batter exists, any Judgnent rendered 13 invalid,” (Citing Mever'vs Texritary, 36 Naw. 75, 78 (1942)) Idk 68 Haw. at 335, 713 P.2d at 427. Moreover, “[sluch a Guestion is in order at any stage of the case, and though a Yower court 1s found to have lacked Juriadiction, we have Jurisdiction here on appeal, not of the merits, bur for the Purpose of correcting an erfor in Jurtadietion.” Zak, Chun v, Emplovees’ Ret. Sys., 73 Haw. 9, 13, 828 P.2d 260, 263 (2992); see also, e.g., 488 Am Jur 2d Labor and Labor Relations § 2428 (2005) ("A claim that the defendants should have raised plaintiffs’ alleged failure to exhaust contractual remedies in their answer and waived it by failing to do so was rejected, since the failure to exhaust goes to the court's subject-matter 14  ‘*** FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER jurisdiction and can be raised at any time by any party or by the court under Fed. R. Civ. P. 12(h) (3).") (citation omitted). Thus, if the district court did not have jurisdiction over Williams's petition, then its order mst be vacated despite Aona’s previous failure to raise the issue. See Lingle v, Hawaii Gov't Employees Ass’n, AFSCME, Local 152, AFL-CIO, 107 Hawai'i 178, 182, 111 P.3d 587, 591 (2005) ("A judgment rendered by a circuit court without subject matter jurisdiction is void.” (citation omitted) ). a. exhaustion of renedies in general Aona argues that the district court did not have jurisdiction over Willian’s petition because he did not exhaust his remedies under the CBA, Exhaustion of renedies is defined as “(Ihe doctrine that, if an administrative renedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available.” Black's Law Dictionary 613 (8th ed. 2004). In general, the doctrine of exhaustion of remedies is a policy of judicial economy. See generally 2 Am. Jur. 2d Administrative Law § 474 (The exhaustion rule serves a legitimate state interest in requiring parties to exhaust administrative remedies before proceeding to court, thereby preventing an overworked court from considering issues and remedies that were available through 1s *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** administrative channels.”). As such, the doctrine of exhaustion of remedies temporarily divests a court of jurisdiction. >. exhaustion of remedies under a CBA Aona is correct that when parties are bound by the terms of a CBA, we have repeatedly identified a policy interest in requiring employees to exhaust their contractual remedies before bringing judicial claims against an employer: It is well-settled that an employee must exhaust any grievance or arbitration procedures provided under 2 Collective bargaining agreement before bringing a court action puksuanE to the aurecnent. strong policy Considerations support this rule. The exhaustion Fequirenent, first, preserves the integrity and autonomy of the collective bargaining process, allowing the parties to develop their own uniform mechanism of dispute resolution, Te sis pronotes judicial efficiency by encouraging the orderly and less time-consuming settlement of disputes through alternative means. Hokama v, University of Hawai‘, 92 Hawai‘ 268, 272, 990 P.2d 2150, 1154 (2999) (footnote omitted) (internal citations omitted) (emphasis added). Indeed, “where the terms of public employment are covered by 2 collective bargaining agreement pursuant to HRS Chapter 89 and the agreement includes a grievance procedure to dispose of employee grievances against the public employer, an aggrieved employee is bound by the terms of the agreement.” Winslow v. State, 2 Haw. App. 50, 55, 625 P.2d 1046, 1050 (2981). Applying the exhaustion doctrine to the terns of a CBA “is in keeping with prevailing National Labor Relations policy and Hawaii policy favoring arbitration as a dispute settlement mechanism.” Santos v, State, Dept, of Transp., Kauai Div., 64 16  FOR PUBLICATION IN WEST'S HAWALT REPORTS AND PACIFIC REPORTER *** Haw. 648, 655, 646 P.24 962, 967 (1982) (per curium). However, “[glrievance procedure is not to be resorted to with respect to matters not included within its scope in the collective bargaining agreement.” SIA C.J.S. Grievances § 340 (2003) (citations omitted). 2. The ICA Erroneously Analyzed the Issue of the District Court’s Jurisdiction Because the Doctrine of Preemption Is Inapplicable. The ICA concluded that the district court had jurisdiction over Willians’s petition based on the doctrine of Preemption. Williams, 2008 WL 5182933, at ¥3-4. ‘The ICA first discussed our decision in Santos requiring an exhaustion of contractual remedies under a CBA. However, the ICA then stated that of state court jurisdiction is not unlinites ‘nder the National Labor Relations Act (NL#A) or Hawas't policy, In Radclit{e v, Rainbow Constr, Co, 254 Fuad 772 (Sth Cir, 2001), the Unites state(s) Court of Appesi(s) tor the Winth Circuit held that certain actions under the KURA wore not prsemsted fron state court Jurisdiction. these actions included “torts of threatened violence, traditionally held not to be prasmuted, or intentional infliction of enctional distress, and defamation, both of which the Supreme Court has held to be exceptes tron Garnon’s'® precenption rule aven though they involve. conduct arguably protected or prohibited by the NLRA.” Ragcli¢te, 25t F.3d St 785. (cieateons omiteed!)) Id. at +4. “The ICA explained that “Gammon” refers to ae Souncil v. Garmon, 359 0.5. 236, 79°8-Ce. 133 (1989) {Gaenen preemption rule Fefers to Preemption of state law by the MURA). Radcliffe, 25¢ Fed at 780'n. 6." williams, 2008 WL 5162933, at “neds u ‘++ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** ‘The ICA then cited our decision in Briggs v, Hotel Corp. of Pac., 73 Haw. 276, 831 P.2d 1335 (1992) for the proposition that “‘outrageous conduct, threats, intimidation, and words’ which cause the plaintiff to suffer ‘grievous mental and emotional distress as well as great physical damage’ may also fall within an exception to the federal interest in the national labor policy and therefore permit state law recovery.” Hilliams, 2008 WL 5182933, at *4 (quoting Bricas, 73 Haw. at 284, 831 P.2d at 1341). Finally, the ICA stated that “[t]he State has a substantial interest in protecting its citizens from the kind of abuse of which Williams complained. That interest is not diminished or preempted because it is related to matters contained in a CBA grievance process.” Id, (emphasis added). Preemption is commonly defined as “[t]he principle, (derived from the Supremacy Clause [of the United States Constitution}) that a federal law can supersede or supplant any inconsistent state law or regulation.” Black's at 1217; see also id. at 303 (defining the term “conplete-preemption doctrine” as “[t]he rule that a federal statute’s force may be so extraordinary and all encompassing that it converts an ordinary state common-law complaint into one stating a federal claim for Purposes of the well-pleaded complaint rule”). In contrast to the doctrine of exhaustion’s temporary divestment of jurisdiction, when a federal statute preempts a state law claim, a8  ‘+#* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER preemption fully divests the state-law court of all subject- matter jurisdiction over a particular issue, As we have stated in the context of employment law: ven it is clear or may fairly be assumed that the activities which 2 State purports to regulate are protected By $7 of the National Labor Relations Act, or constitute. an unfair labor practice under § 8, due regard for the federal enactnent requires that state jurisdiction must yield, To leave the States free to regulate conduct 20 plainly within the central aim of federal regulation involves too great & Ganger of confilet between power asserted ay Congress and Fequirenents imposed by state law.” Briggs, 73 Haw. at 283, 831 P.2d at 1340 (quoting San Diego Bldg. Trades Council v. Gammon, 359 U.S. 236, 244 (1959)). Thus, the preemption doctrine is triggered when a court is presented with conflicting state and federal statutes. Here, the district court was not presented with conflicting state and federal statutes because the NLRA does not apply to the City and County. The NLRA only applies to “employers,” as defined by the NURA. See generally 29 U.S.C. * conflicting state statutes can also trigger the preanption doctrine, Indeed, HRS chapter 69 preempts conflicting state statutes: ‘This chapter shall take precedence over all conflicting statutes concerning this subject matter and shall preempt all contrary local ordinances, executive orders, Tegisiation, or rules adopted by the State, a county, of any department or agency thereat, inclusing the departments of hnuman resources development Or of personnel services oF the Civil service commisason: RS § 89-19 (2993 ¢ Supp. 2008). However, HRS $ 89-19 does not apply here because Acra challenges the CBA and not the provisions of ARS chapter 83. Sea Mawal's Org. of Police Officers v.-Gos'y of rot, Journalists Univ, of tua Chapter, £3 await 376, 403, 927 P.24 906, 412 (1996) ("By its own langues MRS" § 89-19 accords preenptive effect to the provisions of HRS chapter £9 and not to the agreements entered into between parties pursuant to the authority, Procedures, and rules established in ARS chapter #9.” (emphasis added) )~ 19 ‘*#* FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER *** $ 182(1) (2000). Under the NLRA, the term “employer” “shall not include . . . any State or political subdivision thereof{.)” 29 U.S.C. § 152(2) (2000) (emphasis added). Aona and Williams's employer is the City and County of Honolulu, @ political subdivision of the state of Hawai'i. See Haw. Const. art. VIII, $1, Therefore, the NLRA does not apply and the ICA’s discussion of preemption was irrelevant. In sum, Aona is correct that the doctrine of preemption is inapplicable to the facts of this case. As a result, we hold that the ICA’s application of preemption principles to conclude that Williams was not required to exhaust his contractual remedies was erroneous. 3. Despite the ICA's Error, It Correctly Concluded That the District Court Properly Exercised Jurisdiction Over Williams’s Petition. Although the ICA used an erroneous framework to determine that the district court had jurisdiction over Williams’s petition, the ICA correctly concluded that the district court had jurisdiction becai (1) Williams's petition involves conduct outside the scope of the CBA? (2) even if CBA remedies did apply, tort claims are excepted from the general rule that employees must exhaust their remedies under the CBA before seeking judicial relief; (3) the CBA did not provide Williams with an adequate remedy; and (4) public policy does not 20 *** FOR PUBLICATION IN WEST'S HAWATTREPORTS AND PACIFIC REPORTER *** support limiting injunctions against harassment for employees subject to CBAs. a. exceptions to the exhaustion doctrine The doctrine of exhaustion is not absolute. “[B]xceptions to this doctrine exist, such as when pursuing the contractual renedy would be futile.” Poe v. Hawaii Labor Relations ad., 97 Hawai'i 528, 536, 40 P.34 930, 938 (2002) Likewise, “[a]n aggrieved party rieed not exhaust administrative remedies where no effective renedies exist.” Hokana, 92 Hawai‘t at 273, 990 P.2d at 1185. Furthermore, “[a]s a general proposition . . . the contractual grievance procedure does not apply to tort actions.” Id. (internal citations omitted). Finally, policy interests underlying the exhaustion doctrine may be outweighed by other interests. See Vaughn v, Pac, tw, Bel] Tals Cou, 611 P.2d 281, 290 (Or. 1980) (“We conclude that a worker claiming any type of unlawful employment. discrimination . . is entitled to bring suit for injunctive relief pursuant to that statute, notwithstanding the availability of a remedy under the collective bargaining agreement. We reject defendant’ s argument that workers who have a remedy under a collective bargaining agreement are limited to that exclusive remedy. We hold that the state policy favoring exclusivity of collective bargaining agreement remedies does not foreclose the plaintiff's right to seek injunctive relief in this case.” 21 “*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** as sired Liams sou was oursi of he CBA. In Hokama, we stated that “(flor purposes of the exhaustion requirement, we must determine whether [the employee's] claims arise from the terms of the collective bargaining agreement.” Hokama, 92 Hawai'i at 273, 990 P.2d at 1155. In order to determine whether Williama’s clain arose from the terms of the CBA, we must look to the relevant CBA provisions.* According to section 15.02 of the CBA, “[t]he term ‘The CBA was not submitted into evidence at the district court. Pursuant to HRS § 64 elvery appeal shail be taken on the record, and no new evidence shall be introduced in the supreme court. Ihe Sppeliate court may correct any error appearing oh the Fecord, but need not consider « point that was not presented in the crisi court in an appropriate manner. No jusgnest, order, or decree shall be Feversed, amended, oF modified for any error or defect, unless the court is of the opinion thee it’nas injuriously Sffected the substantial rights of the appellant ARS § 641-2 (1993 6 2008 Supp.). Thus, as a generat rule, we would not consider the ters of the CEA. However, Rona states that “Aona attached as Appendix B to his opening brief a copy of the relevant portions of the written CBA and requested the ICA to take judicial notice of chat document.” It ia not clear if the Ic took judicial notice of the CBA, but for the following reasons, we take Judicial notice of the attached portions of the CBA. Hawai'i Rules of Evidence (HRE) Rule 201 (1993), provides that judicial notice may be taken of facts “capable of accurate ‘and ready determination by resort to sources whose accuracy cannot reasonably be questioned” and that [a] court may take Judicial notice, whether fequested or not," HE Rule 201(c) “at any stage of the proceeding,” HRE Rule 201(f1- Indeed, “(tihe trial court may take judicial notice of « fact if it ss. conmon knowledge or easily verifisble.” State v. lord, 63 Haw. 270, 272, 625 P.2a 1038, 1039 (1981) (citation omitted); Additionally, an appellate court is not precluded from exercising its iseretion to take judicial notice of certain facts where 22 ‘*#* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** grievance shall mean a complaint filed by a bargaining unit Employee, or by the Union, alleging a violation, misinterpretation, or misapplication of a specific section of this Agreement occurring after its effective date.” Section 15.01 of the CBA requires that “{a] grievance that arises out of alleged Employer violation, misinterpretation, or misapplication of this Agreement, its attachment, and appendices shall be resolved as provided in Section 15.” Section 15 of the CBA the trial court elected not to do so, See Application of 53. Haw. 496, 497 P.24 $49 {1970)- As we se of the Judicial notice rule, and it would ‘wholescne one, is to eliminate the necessity time of the court and Jury to make formal proof of @ fact which cannot be dispated. van Selcen Rangey'2, Inc, 199 Kan, 417, 420 Pc2d 298 (1987) State vs Mave, 1 Haw. App. 644, 646, 623 P.2d #98, 299 (1981) (per curiam). Rona argues that it is appropriate for che ICA and this court to take judicial notice of the CBA because the CEA ia a “natter of public record." See HRS § 82-3 (1593). (""Goverasent record’ ‘means information maintained by an agency in written, auaitory, visual, electronic, or other Physical form."); MRS § 9ZF-i1(a) 1993) ("Ail government records are open to public inspection unless access ie restricted or closed by taw."l«, Jo Kaho'chanohane v, State, 214 Hawai'i 302, 328, 162°P.3d 696, 722 (2007), we took Judicial notice of “[Employees’ Retirement System of the State of” Baw (ERS)] reports for the fiscal years 2002, 2003, 2604, and 2005" becaus were “a matter of public record, and appropriate for judicial notice, their significance bears directly on the instant matter.” 528, 162 P.3d at 722. We also noted that “[t]his case ia a proper case’ for judicial notice of subsequent events inasmuch as the iasue of standing 1s coly Falsed on appeal, and the parties were unable to develop the record regarding the ERS” standing.” ig. at 329'n.13, 162 2.34 at 723 m.19 We have the discretion to take judicial netice of the CEA because it 1s a matter of public record and easily verifiable, Also like the Standing issue in Kabo'chanchano, the issue of exhaustion was raised for the first tine on appeal and the Tecord below was sot adequately developed. Therefore, we take judicial notice of the CBA provisions appended to Aona’s| opening brief. 23 ‘*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** outlines the steps that must be taken to file a grievance. Section 46.02a of the CBA provides that: ‘The Employer shall conply with all applicable Federal, State, or Local safety Lave, rules and regulations. (6.C. Chapter 12-208, Havall Administrative Rules, pertaining ¢o protective clothing, shoes and accessories), inclucing the Hawaii Workers Compensation Law. Tha Employer shail provide a workplace free from violence by providing safety and health training that includes cecogsition ef conditions and Denavior that say lead to or increase the risk of violence and the means and the methods to prevent or reduce thar risk fo -Employees and supervisors during work hours Upon review of the facts alleged and issues raised in Williams's petition, it is clear that they do not arise from the terms of the CBA. See Blair v, ing, 96 Hawai'i 327, 332, 31 P.3d 1e4, 189 (2001) (in order to determine if an action vas in tort or in the nature of assumpsit “this court has locked to the essential character of the underlying action in the trial court. + + The character of the action should be determined from the facts and issues raised in the complaint, the nature of the entire grievance, and the relief sought.” (internal citations omitted)). Williams’s petition states that: Robert Acna is causing me psychological stress due to the fact that he is a larger man than i am, he say not like ay ‘ace and I fear he say attack ne and couse ne much nore re bodily and psychological haze than he already has. 1 severely threatened by Robert Aona due to his excessive size. He causes me anxiety when I see him. Williams’s petition does not constitute a CBA grievance because it does not “alleg[e] 2 violation, misinterpretation, or misapplication of a specific section of [the CBA) occurring after 24 ++ FOR PUBLICATION IN WEST'S HAWAIT REPORTS AND PACIFIC REPORTER *** its effective date.” Instead, it is clear that Willians is seeking @ TRO and injunction as an individual against Aona solely sn his individval capacity; the fact that Willians and Aona are also employee and supervisor 1s not relevant to the relief sought, In sum, Williams's petition is beyond the scope of the can. eM e nis Sitdiass Soapiained of naean intentional tore Additionally, even if the CBA applied, because the conduct Millians sought to enjoin was an intentional tort, he was not required to exhaust Ais remedies under the CBA. See Hokama, 92 Hawai'i at 273, 990 P.2d at 1155. In his petition, willians alleged that Aona “palmed [him] on [his] left sided chest area causing an innediate sharp pain that required energency medical teeatnent [.]” There ss no indication that Williams assented to this bodily contact. Therefore, Aona’s conduct clearly fits the common law intentional tort of battery, as “a defendant causes battery when he or she ‘intentionally causes bodily contact to the plaintif£ in a way not justified by the plaintiff's apparent wishes or by a privilege, and the contact sa in fact hamful or against the plaintiff's will.’* Doe Parente No, iv, state, Dept. of Educ, 100 Hawai'i 34, 68, 58 8.34 545, 599 (2002) (acoba, J., dissenting) (quoting Dobbs, The Lay of Tarts, § 28 at 52-53 (2000) (citations omitted) ). 25. *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Additionally, Williams claims that Aona 1s causing hin “psychological stress." The infliction of emotional distress is also a cognizable tort claim recognized by this court. See, e.9, Kaho'chanchano v. State, 117 Hawai'i 262, 306, 178 P.3d 538, 582 (2008) (explaining that “a plaintiff may recover for [the negligent infliction of emotional distress], absent any physical manifestation of his or her psychological injury or actual physical presence within 2 zone of danger, where a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circunstances of the case”) (citation omitted)); Hac v. Univ. of Hawai'i, 102 Hawai'i 92, 106, 73 P.3d 46, 60 (2003) (“Intentional infliction of emotional distress is an injury recognized by the Restatement as independently giving rise to liability.”). Therefore, the conduct complained of in Williams’s petition constitutes an exception to the general rule that Williams was required to exhaust his contractual remedies before seeking judicial relief. The cases Acna relies upon do not change the analysis. Aona incorrectly implies that in Santos we held that the employee-plaintiff was required to exhaust his administrative renedies before seeking a judicial renedy for tort claims related to the intentional infliction of emotional distress, However, we did not hold that the employee was required to exhaust contractual remedies under the CBA before seeking a judicial 26 ‘+#* FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** remedy for tort claims. Instead, we held that a previous circuit court judgment that the employee “could not bring an action against the State (his employer] without first having exhausted his contractual remedies became final when (the employee] did not appeal the same and the time provided for such appeal expired. Thus, [the employee] is barred from relitigating that issue.” Santos, 64 Haw. at 656, 646 P.2d at 967. As such, Santos does not conflict with a holding that the exhaustion of contractual remedies does not apply to tort claims. Aona also clains that the ICA’s decision in Winslow is controlling. In Winslow, an employee was denied paid administrative leave. Subsequently [the employes] filed a grievance . . . in accordance with the grievance procedures set out [4h the CBA) alleging that the failure to grant her request for paid acminiserative eave and transfer violates the terna of the collective bargaining agreement, specifically, Sections 11 (Disciptine) 12) (Layotf), 49 (sanirary Conditions), 50 (Staffing and Workload), nd 46. (Working Condition: Safety)’ in ner grievance, appellant slso sage allegations of sex discrimination and inopecified Occupational Satety and'Health Act (OSHA) ‘lolations Winslow, 2 Haw. App. at 53, 625 P.2d at 1049-50. Before completing the grievance process “appellant filed suit in circuit court against the state and the Union alleging essentially the same claims that were initially raised in the grievance.” Id. at 53-84, 625 P.2d at 1050. The complaint included “allegations of negligence” and “infliction of emotional distress.” Id, at 54 n.3, 625 P.2d at 1050 n.3. The ICA held that “where the terms of 2 “+ FOR PUBLICATION IN WEST'S HAWATT REPORTS AND PACIFIC REPORTER *** public employment are covered by a collective bargaining agreement pursuant to HRS Chapter 89 and the agreement includes a grievance procedure to dispose of employee grievances against the public employer, an aggrieved employee is bound by the terms of the agreement.” Id. at 55, 625 P.2d at 1050. Although Winslow required the employee to exhaust her contractual remedies for claims that included claims in tort, the facts and circumstances in Winslow are distinguishable from those in the instant Application. It is true that the employee in Winslow included the tort claim of intentional infliction of emotional distress in her complaint; however, the tort claim arose out of her primary claim that she was denied paid administrative leave in violation of the terms of the CBA. Here, Williams’s tort claims of battery and “psychological stress” form the bases for his entire petition. Unlike the employee in Winslow, Williams does not allege any violation of the CBA. Nor does he name the City and County as a party to his petition. Additionally, to read the ICA’s decision in Winslow broadly as: requiring the exhaustion of contractual claims for all tort claims would be inconsistent with our later decision in Hokama, where we stated that “(aJs a general proposition, we agree that the contractual grievance procedure does not apply to tort actions.” Hokama, 92 Hawai'i at 273, 999 P.2d at 872 28 *** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** (anteinal citations omitted). As such, the district court's exercise of jurisdiction was not inconsistent with Minslov. 4. Williams was not remixed to exhaust his The TCA concluded that “ona failed to desonstrate that a written remedy was available under the CBA grievance procedure that could protect Willians fron future harassment, Because Aona did not denonstrate that the CBA provides a reasonable alternative to an injunction ofder, the presumed goal of such a policy 4s not applicable.” Williams, 2008 WL 5182933, at +4 (footnote omitted) . Rona argues that the TCA erred because (1) the CBA denonstrates the City and County's concern over workplace violence and contractual abligation “te provide a workplace free from violence by providing . . . the method and means to prevent or reduce the risk £0 Employees and supervisors," and (2) testimony before the district court from Deputy Corporation counsel for the City and County expressed the city and County's position that “DES wished to manage the worksite itself, without court interference, and that DES can manage the situation in various ways, such (#ic] arranging no direct dealings between wsiaiaae and ona, reassignnents, or having a third party present during those tines that Williams and Acna might have to be kogether.” 29  ‘*** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER The ICA correctly concluded that the CBA did not provide an effective remedy for Williems. See Hokama, 92 Hawai'i at 273; Fruit and ve Wazehousens 260 v. Morley, 378 F.2d 738, 745 (9th Cir. 1967) (stating that “the exhaustion of intraunion remedies doctrine cannot apply unless there is available from the union a remedy which is neither uncertain nor futile. Inherent in this proposition is the idea that to invoke the exhaustion principle the union must show that there was a procedure available to the menbers within the union structure reasonably calculated to redress the particular grievance complained of.”). ‘The CBA provision Aona claims is controlling is titled workplace safety. Willians’s petition was not limited to the workplace. Instead, Williams sought a TRO and injunction to enjoin Ana from “contacting, threatening, or physically harassing” Williams or anyone residing at his residence; calling Williams on the phone; and “entering or visiting” Willians’s “residence, including yard and garage” and “place of employnent.” In other words, Williams asked the district court to regulate conduct not only in the workplace but beyond the workplace ~~ places where the CBA hi no effect. Therefor as the relief Williams sought was not limited to the workplace, the CBA could not provide an adequate remedy, 30 +4** FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** Additionally, the CBA did not present specific steps that would be taken in the event of a physical altercation between an employee and a supervisor. The CBA’s broad mandate to provide unspecified “means to prevent or reduce the risk (of violence] to Employees and supervisors” is not specific enough to provide an adequate alternative to the specific tezms of a TRO and injunction against harassment. Furthermore, Aona’s argument that the ICA should have considered the testimony of the Deputy Corporation Counsel regarding the steps that the City and County would take to manage the work site is also unavailing, The CBA is a contract between the City and County and United Public Workers AFSCME, Local 646, AFL-CIO. When interpreting a contract, it is well-settled that courts should not draw inferences from a contract zeqarding the parties’ intent when the contract se definite and Unambiguous. in fact, contractual cerss should be interpreted according to their plain, ordinary meaning and accepted uge in common speech. The court should look no farther than the four corners of the docunent to determine whether an ambiguity exists United Pub, Workers, AFSCME, Local 646, AFL-CIO v. Dawson Int'l, Incs, 113 Hawai'i 127, 140, 149 P.3d 495, 508 (2006) (quoting State Farm Fire 4 Cas. Co. v, Pac, Rent-All, Inc., 90 Hawai'i 315, 324, 978 P.2d 753, 762 (1999) (citations omitted)). As such, the ICA was not required to consider the Deputy Corporation Counsel's testimony regarding interpretation of the CBA contractual terns. 31 “+ FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER *** e. public policy We agree with the ICA’s conclusion that “(t]he state has a substantial interest in protecting its citizens from the kind of abuse of which Williams complained.” Williams, 2008 WL 51862933, at *4. The broad availability of a TRO and injunction serves the public interest by preventing physical and psychological violence. Allowing an injunction against harassment in cases like this does not conflict with the policy favoring the exhaustion of contractual remedies. Williams did not attempt to circunvent the contractual grievance process. Instead, he filed his petition in conjunction with a grievance. According to Williams, he only wanted the injunction to last until the workplace violence investigation was concluded. A TRO and injunction provide timely intervention and hopefully prevent future harassment. As Williams explained in his answering brief -- filed more than nine months after the district court hearing -- “I did file a grievance. To date there has not been a response. This was an assault that needed an immediate response. It takes a long time for [sic] any action is taken on a grievance.” Depriving employees of the opportunity to seek a TRO and injunction against harassment merely because they we: parties to a CBA would leprive employees of an immediate remedy against violence. 32  ++ FOR PUBLICATION IN WEST'S HAWAT'T REPORTS AND PACIFIC REPORTER Iv. concwsron Accordingly, while the ICA erred when it affizmed the district court's jurisdiction on the basis of the doctrine of preemption, we hold that the district court had jurisdiction on the alternative bases discussed in detail in this opinion. Consequently, in accordance with Rule 36(d) (2) of the Hawai'i Rules of Appellate Procedure, we (1) vacate the judgment entered by the ICA on Decenber 30, 2008; (2) vacate the part of the ICA's Memorandum Opinion concerning preemption; and (3) affirm the district court's July 17, 2007 Order Granting Petition for Injunction Against Harassment. Frederick W. Rohlfing and Michael G. Kozak (of Case Lombardi s Pettit) for petitioner/respondent= appellant Cacti LI Cedric C. Williams respondent/petitioner- DP > appellee, pro se Conca €, Duly by + Co tb ny 3 

c4b446ae3b63844bd4734ab1253a889dcb3be835f9f5f5fbdf52b46a5be82022

2009-06-19T00:00:00Z

b752be51-84a5-4af1-a213-f88a5961ebfd

State v. Schwab

29556

hawaii

Hawaii Supreme Court

LAW LIBRARY NO. 29556 IN THE SUPREME COURT OF THE STATE OF HAWAI'I aug Vivi STATE OF HAWAT'T, Respondent /Plaintiff-Appelless] ors MENDTE M. SCINAB, Petitioner/Defendant-Arpe1 1d a CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 07-1-0582) ORDER REJECTING APPLICATION POR WRIT OF CERTIORARI (By: Moon, C.J. for the court") Petitioner /Defendant~Appellant Wendie M. Schwab's application for writ of certiorari filed on May 5, 2009 is hereby Hawai'i, May 28, 2009. FOR THE COURT: rejected. DATED: Honolulu, Nakayama, Acoba, and Duffy, JJ, and circuit 2 Considered by: Moon. C.J. guage Perkins, assigned by ‘ronson of waconcy. 

64a0396f44a6437faf90b6289e16451372fe6d273e8de9986f17c97cf3127903

2009-05-28T00:00:00Z

c0ff8f1f-ebb5-4ae2-a75e-5e09249ebeff

State v. Peralta

28829

hawaii

Hawaii Supreme Court

No. 28829 IN THE SUPREME COURT OF THE STATE OF HAWAI'I ont STATE OF HAWAI'I, Respondent /Plaintiff-Appellei ROGER PERALTA, Petitioner/Defendant~Appel lant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 02-1-2023) R WRIT OF CERT Duffy, J., for the court!) (By: Petitioner/Defendant-Appellant Roger Peralta‘ s application for writ of certiorari, filed on April 20, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, May 26, 2009. TR FQ, FOR THE COURT: e \ SEAL Ynan 6, Doli & g Loe WY Associate Justice Richard L. Hoke, Jr. for petitioner/defendant- appellant on the application Considered by: Moon, C.J, Nakayama and Duffy, J0., Chroust Judge ito, in place of Accba, J.) recused, and Circuit Judge Sakamoto, assigned by Feasen of vacancy. 

be1940317ae4452266d622a0d08a1619c0db8656194063cbd5f077ffaf3a786f

2009-05-26T00:00:00Z

46950a5f-6565-4695-ba57-7f13df1f6113

Kay v. Kaiser Foundation Health Plan, Inc.

hawaii

Hawaii Supreme Court

Wo. 27581 IN THE SUPREME COURT OF THE STATE OF HAWAT'T WILLIAM KAY, JR., Individually and as Special Administrator of the Estate of JEFFREY KAY, Respondent/Petitioner-Appellant, KAISER FOUNDATION HEALTH PLAN, INC. Petitioner /Respondent~Appellee. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S-P. NO. 02-1-0261) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court") Petitioner/Respondent-Appellee’s application for writ of certiorari filed on May 7, 2009, is hereby rejected. DATE! Honolulu, Hawai", June 16, 2009. FOR THE COURT: Busetce Caen Associate Justice George W. Playdon, Jr., Kelvin H. Kaneshiro, and R. Aaron Creps for Petitioner/ Respondent-Appellee on the application aa fihel Hd QL Hull 6002 ‘considered by: Moon, C.J.» and Nakayama, J., Circuit Judge Town, in place of Acobay J, recused, Circust Judge Wong, in place of Duffy, Fecused, and Cirevit Judge Crandall, in place of Recktenwald, J., recused. 

338162440f971cd834e61c7faa7a4eab07549d032a3160b0518b2c9f1a7d2d6e

2009-06-16T00:00:00Z

35c598bb-28eb-41c1-92bf-5ed50e6f8190

In re Hardy

hawaii

Hawaii Supreme Court

LAW LIBRARY no, 29773 IN THE SUPREME COURT OF THE STATE OF HAWAI'T IN RE JANE E. HARDY 00d, ORIGINAL PROCEEDING RDER GRANTING PETITION 7 (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktér 2) Petition to Resign and Surrender License, the attached affidavits, Hardy's May 22, 2009 letter and attached certification of marriage issued by the State of Florida showing that Petitioner Jane &. Hardy’s name legally changed to Jane Hardy Miller when she married Irving M. Miller on May 2, 1982, the lack of objections by the Office of Disciplinary Counsel, and the record, it appears that Jane Hardy Miller is the Jane Elizabeth Hardy assigned attorney number 1918, and that Petitioner Jane B. Hardy’s petition complies with the requirements of Rule 1.10 of the Rules of the Suprene Court of the State of Hawai'i (RSCH). Therefore, IT IS HEREBY ORDERED that the petition is granted. IT IS FURTHER ORDERED that Petitioner Hardy 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 Hardy shall comply with the notice, affidavit, and record requirements of sections (a), (b), (a), and (g) of RSCH 2.16. qaws IT IS FINALLY ORDERED that the Clerk shall remove the name of Jane Elizabeth Hardy, attorney number 1918, from the roll of attorneys of the State of Hawai'i, effective with the filing of this order. DATE! Honolulu, Hawai'i, June 3, 2009, Ge Bectes Tete Or Ao ae Gone 6 Reblig PNAC, Reet Ch 

04e4cd5c8a4668413d94641403de1c5e6acdbe865c6da5894f344f9e1139223e

2009-06-03T00:00:00Z

94893cbd-7650-4bb7-96d1-eca1347ba59f

State v. Bousman

28747

hawaii

Hawaii Supreme Court

wo, 28747 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T SS STATE OF HAWAI'I, Respondent /Plaintiff-Appellee PHILLIP J. BOUSMAN, Petitioner/Defendant~Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 06-1-0351(4)) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORART (By: Acoba, J., for the court) ‘The Application for Writ of Certiorari filed on April 27, 2009 by Petitioner/Defendant-Appellant Phillip J. Bousman is hereby rejected. , May 19, 2009. DATED: Honolulu, Hawai FOR THE COURT: ‘Associate Justice Jon N. Ikenaga, Deputy Public Defender, on the application’ for petitioner/defendant- appellant. and Duffy, JJ., and {considered by: Moony C.J++ Nakayama, Acob Circuit Judge Crandall, assigned by resson of vacancy. 

d5ec44f9cbd5361880e4e3411c102f9a3af1400d72c656c95b17a27254ec70f4

2009-05-19T00:00:00Z

9bf22146-2d0f-40d4-8dd6-c9132653dd5a

Swift v. Perkins

hawaii

Hawaii Supreme Court

HY 21 No ooue wo. 29844 F L IN THE SUPREME COURT OF THE STATE OF HAWAIIE = = S 8 BENJAMIN CORTEZ SWIFT, Petitioner, ‘THE HONORABLE RICHARD K. PERKINS, JUDGE OF THE CIRCUIT coUaT OF THE FIRST CIRCUIT, STATE OF HAWAI'I and STATE OF HANAT'T, Respondents. ORIGINAL PROCEEDING (SEP No. 7-1-0026) ORDER Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the papers submitted by Benjamin Cortez Swift, which is deemed a petition for a writ of mandamus, At 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 that will not issue unless the petitioner 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 the petition for a writ of mandamus without payment of the filing fee. I IS FURTHER ORDERED that the petition for a writ of extraordinary remedy demonstrates a clear mandamus is denied. DATED: Honolulu, Hawai‘i, June 12, 2009. Teprtim, ON ise NS Ymca er € Ned ont 

9b5a83133fbbfe2189b14ac719200281c3b2a7c316bfb63e8d09a03932766410

2009-06-12T00:00:00Z

1a61cf13-416f-4072-9c2f-b1f6e0977aa3

Office of Discplinary Counsel v. Hartnett

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 29952 IN THE SUPREME COURT OF THE STATE OF HAWAT'T OFFICE OF DISCIPLINARY COUNSEL, Petitioner, =| ANDREW S. HARTNETT, IZ, Respondent. ORIGINAL PROCEEDING (oDC 098-036-8753) ORDER OF DISBARMENT Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) (By: Upon consideration of the Office of Disciplinary Counsel's petition for issuance of reciprocal discipline notice to Respondent Andrew S. Hartnett, pursuant to Rule 2.15(b) of the Rules of the Suprene Court of the State of Hawai'i (RSCH), the memorandum, affidavit, and exhibits thereto, the Affidavit of Thomas F. Robertson Regarding Service of the August 5, 2009 Notice and Order, the exhibits thereto, Respondent Hartnett’s Statement of Non-Objection, and the record, it appears that: (1) on May 12, 2009, the Supreme Court of Kansas accepted Respondent Hartnett’s voluntary surrender of his license to practice law in Kansas and disbarred him; (2) RSCH 2.15(b) requires the same or substantially equivalent discipline, or restrictions or conditions upon the attorney's license to practice law in the State of Hawai'i, unless Respondent Hartnett shows cause under RSCH 2,15(c) as to why imposition of the same or substantially equivalent discipline should not be imposed; (3) Respondent Hartnett responded to our August 5, 2009 order and states that he does not object to or otherwise oppose the petition filed in this case; (4) the same discipline is warranted in this jurisdiction; and (5) the same discipline in this jurisdiction is disbarment. It further appears that Respondent Hartnett does not maintain 2 practice in the State of Hawai'i and that, notwithstanding RSCH 2.16(c), the disbarment should be effective inmediately. ‘Therefore, IT IS HEREBY ORDERED that Respondent Andrew S. Haztnett is disbarred effective upon the filing of this order. IT 18 FURTHER ORDERED that Respondent Hartnett shall pay all costs of this proceeding. IT 18 FINALLY ORDERED that Respondent Hartnett shall comply with the notice, affidavit, and record requirements of sections (a), (b), (a), and (g) of RSCH 2.16. DATED: Honolulu, Hawai'i, September 14, 2009, Porte Seu crore) aie Boel Gua Dosey Pim ©: Mech bowl off 

723f19eac379c502690f0bd6adcb6070df26edf3210fb081e696ba0ddbbfa998

2009-09-14T00:00:00Z

ed80bb5b-1457-48c2-a63b-13a9ead98ba7

Gannett Pacific Corporation v. Fujioka

hawaii

Hawaii Supreme Court

No. 29821 IN THE SUPREME COURT OF THE STATE OF HAWAI'I GANNETT PACIFIC CORPORATION, dba The Honolulu Advertiser, Petitioner, 2 BARON S. FUJIOKA, tor, State Procurenent Offic: Administ ORIGINAL PROCEEDING ‘ORDER (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus filed by petitioner Gannett Pacific Corporation, dba the Honolulu Advertiser and the papers in support, it appears that the issuance of an invitation for bids involves the exercise of discretion and judgment by respondent State Procurement Office Administrator. See Hawai'i Administrative Rules §§ 3-122-10, 3 122-13, 3-122-16.06, 3-122-21. Therefore, petitioner is not entitled to mandamus relief. See Hanabusa v. Lingle, 119 Hawai'i 341, 347, 198 P.3d 604, 610 (2008) (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. A duty is 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, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, gune 2, 2009. Goro Pecsetes Cin aweseynrrie LN Weare Beet’ De © Mt be of 

e00c4a4e75f0c560bd6fa9646962cd1a258f6f324e8915c5677948973d7ee6cf

2009-06-02T00:00:00Z

3f377a47-6e3d-4101-8079-d6784c66cc43

Martin v. Lingle

hawaii

Hawaii Supreme Court

No. 29643 IN THE SUPREME COURT OF THE STATE OF HAWAI'I ANDY MARTIN, Petitioner/Plaintiff-Appellant, LINDA LINGLE, in her official capacity as Governor of the State of Hawai'i; DR. CHIYOME FUKINO, in her official capacityay ‘as Director of the Department of Health, Respondents /Defendants-Appeliees. 62:6 Yc ony CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (crv. No. 08-1-2147) (By: Moon, C.J., for the court®) Petitioner/plaintiff-appellant andy Martin's application for writ of certiorari, filed on July 9, 2009, is hereby rejected DATED: Honolulu, Hawai'i, August 3, 2009. * considered by: Moon, C.J. Nakayana, Acoba, Duffy, and Recktenwald, ams 

3714b97556953c877bbbccb764341c523e8dd902a6ee38f4605e26e1f1e1e85a

2009-08-03T00:00:00Z

b564aebe-9a3e-46dc-92e8-12e60065fee1

Killion v. State

29077

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 29077 IN THE SUPREME COURT OF THE STATE OF HAWAI'I LARRY KILLION, JR., Petitioner/Petitioner-Appellant vs. STATE OF HARAI'I, Respondent /Respondent-Apellee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S.P.P, NO. 0771-0010; CR. NO. 89-0008) ORDER REJI PI (By: Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on May 4, 2009 by Petitioner/Petitioner-Appellant Larry Killion, Jr., is hereby rejected. Honolulu, Hawai'i, June 3, 2009. FOR THE COURT: (e Porm tne NY DATED: Larry Killion, Jr., petitioner pro se, the application. 3 1 + Considered by: Moon, C.J, Nakayama, Acoba, Duffy, and “I Recktenwald, JJ. O32 

24354490e4c0cee7662d1b48a493dbf66fbc047d8de15de3ad8109c54b30ff1e

2009-06-03T00:00:00Z

04c63910-2e64-43ea-b320-66a31cd9fb21

State v. Line

hawaii

Hawaii Supreme Court

LAW LIBRA No, 27850 IN THE SUPREME COURT OF THE STATE OF HANAT' STATE OF HAWAT'T, of Respondent /Plaintiff-Appellee ze z 2 vee e = aft m c MELODIE C. LINE, Petitioner/Defendant-Appellant ; Le. ae CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 05~1-0429(3)) 2 Zid 8 area Acoba, J., for the court!) Upon review of the Order Accepting Application for Writ of Certiorari and Requesting Further Briefing, filed in this case on July 6, 2009, it appears that Petitioner/Defendant-Appellant Melodie C. Line’s name is misspelled in the caption, therefore, IT IS HEREBY ORDERED that Appellant's first name in the caption of the said Order is corrected by striking the “Y” and inserting “IE” in its place. The clerk of the court is directed to incorporate the foregoing change on the original order. + duly 8, 2009. DATED: Honolulu, Hawai and Duffy, 39.) and 5 considered by Moon, C.J. tak Circuit Judge Aim, assigned by reason of vacancy. 

08488534668e8389a8c0431ac4e814e1141bb8a16ffb641e19d6c1494b4767e6

2009-07-06T00:00:00Z

50c58dba-cd29-4491-8fe2-b615b2814fbf

Fresch v. Estate of Tavares

hawaii

Hawaii Supreme Court

No. 28273 IN THE SUPREME COURT OF THE STATE OF HAWAI'T LEIMOMI LESLIE FRESCH, as Next Friend for HOWARD K. LESLIE, JR., Petitioner/Plaintiff-Appel lant, and LEIMOMI LESLIE FRESCH, Individually, and HOWARD K, LESLIE, SR3, Respondents/Plaintiffs-Appellees, 3 ‘THE ESTATE OF JAMIE K. TAVARES, deceased, Respondent /Defendant-Appellee, OZ Ne 4 and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants. (CIV. No. 97-0448) HOWARD K. LESLIE, OR., Petitioner/Plaintitt-appellant, and MEGAN LESLIE, a minor, and MALYSSA LESLIE, a minor, through their Guardian Ad Litem, MARLENE K. ANDUHA, sspondents/Plaintiffs-Appellees, vs JEFFREY K. KANUI, Personal Representative of THE ESTATE OF JAMIE K. TAVARES, Deceased, Respondent /Defendant-Appellee, and JOHN DOES 1-30; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants. and JEFFREY K. KANUL, Personal Representative of THE ESTATE OF JAMIE K. TAVARES, Deceased, Respondent /Third-Party Plaintiff-Appellee, vs. one LEIMOMI L. FRESCH and HOWARD K. LESLIE, SR., Respondents/Third-Party Defendants-Appellees JOSEPH L. WILDMAN and SIBILLA & WILDMAN, Respondents /Intervenors-appellees. (CIV. NO, 98-5468) CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (CIV. NOS. 97-0448 and 98-5468) APPLICATION FOR Moon, C.J., for the court") Petitioner/plaintiff-appeliant Howard K. Leslie, Jr.’s application for writ of certiorari, filed May 1, 2009, is hereby rejected, DATED: Honolulu, Hawai'i, June 4, 2009. FOR THE COURT: kl SAD "SEAL 5 Ve og ws Considered by: Moon, C.z., Wakayama, Acoba, and Duffy, 23., and Cireuit Judge Lee, assigned by reason of vacancy -2- 

e2b2b950e57e975f9198f9c15299ac3168af189b1dd31d9bf376c69ad7531d75

2009-06-04T00:00:00Z

5e7db7fb-a268-4e31-8269-e78a33384d3e

In re D. B.

hawaii

Hawaii Supreme Court

No. 29238 IN THE SUPREME COURT OF THE STATE OF HAWAr'r IN THE MATTER OF D.B., A Minor Person. CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (Fe-MIsc. NO. 08-1-0198) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Moon, C.J., for the court") Petitioner/petitioner-appellant Camira Bailey’s application for writ of filed gune 2009, is hereby rejected. DATE! Honolulu, Hawai'i, July 6, 2009. * considered by: Moon, C.., Nakayana, Cireule Judge Kis, in place of Recktenwald, 2 coba. and Duffy, Jd.: and recused. 

08566ad4edd85fdca7ef017d0e22f2fcca49af34b413b9587808340a4bc2e360

2009-07-06T00:00:00Z

97318bee-7623-4f3a-bb3b-e77c52f3c94d

Schillaci-Lavergne v. Murashige

hawaii

Hawaii Supreme Court

no, 29831 a = z IN THE SUPREME COURT OF THE STATE OF HAWAET JONEA SCHILLACI-LAVERGNE, Petitioner, 3 20:2 Wa |e noe sug sunid THE HONORABLE CALVIN K. MURASHIGE, JUDGE OF THE FAMILY COURT OF THE FIFTH CIRCUIT, STATE OF HAWAI'I, Respondent. ORIGINAL PROCEEDING (UCCJER NO. 07-1-0003) ORDER (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus and prohibition filed by petitioner Jonea Schillaci- Lavergne and the papers in support, it appears that the question of judicial disqualification is reviewable on appeal from a final order ending the custody modification proceeding in UCCJEA No. 7-1-0003. Petitioner can appeal from a final order pursuant to HRS §§ 571-54 (2006) and 641-1(a) (Supp. 2008). Consequently, petitioners case is not one in which the question of disqualification cannot otherwise be reviewed and immediate review by way of mandamus and/or prohibition is not warranted. See Peters v, Jamieson, 48 Haw. 247, 257, 397 P.2d 575, 582 (2964) (*[A] writ of prohibition will lie to compel a trial judge to recuse him[] or [her]self because of bias or prejudice which appears from the record, where . . . the case is one in which the question of disqualification cannot otherwise be reviewed.”). It further appears that the matters concerning expert evaluations, discovery, and proof required for custody modification are reviewable on appeal from a final order ending asus the custody modification proceeding in UCCJEA No. 071-0003. Therefore, petitioner is not entitled to extracrdinary relief. See Kena v, Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (A weit of mandamus and/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 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 renedies in lieu of normal appellate procedures.). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus and prohibition is denied. DATED: Honolulu, Hawas't, June 3, 2009. Revert OT eateneyrrer nn Yom 10665, Plot © (tects Bert 

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2009-06-03T00:00:00Z

368a44d8-ab5f-4337-bd83-9884816a4430

State v. Assaye

hawaii

Hawaii Supreme Court

LAW LIBRARY vo, 28078 sh) THE GOPREME COURT OF THE STATE OF HAWATT STATE OF WANAT'T, Respondent-Plaintite-repei@ vs. = S 2 ABIYE ASSAYE, Petitioner-Defendant-Appel lant} ~ r fh g 3 Ss CERTIORARI TO THE INTERMEDIATE COURT OF APPEGES (HPD TRAFFIC NO. 1DTC-07-046070) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court") Petitioner-Defendant-Appellant’s Application for Writ of Certiorari filed on April 17, 2009, is hereby accepted ‘the parties will be and will be scheduled for oral argument. notified by the appellate clerk regarding scheduling. Honolulu, Hawai'i, May 27, 2009. FOR THE COURT: DATE! Bama 6 Associate Justice James $. Tabe, Deputy Public’ Defender, for petitioner-defendant- appellant on the application and clreust ‘considered by: Hoon, C.J. Nakayama, Acoba, and Duffy, 3d. yadge Marks, in place of Fecktenwald, J., recused. 

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2009-05-27T00:00:00Z

ed8baf1c-acd0-41c5-857f-f19ccc1cbaa6

Okamura v. C.T.C. Construction Company

hawaii

Hawaii Supreme Court

No. 20412 IN THE SUPREME COURT OF THE STATE OF HAWAI'I TERRI T. OKAMURA, Petitioner/Plaintift-Appellant,— rc i C.7.C. CONSTRUCTION COMPANY, a Hawaii corporation, s and HYUNDAE PLUMBING, Respondents/Defendants-Appel lees, and HERMAN Y. HO? DOE INDIVIDUALS 1-20; DOE CORPORATIONS 1-20; and DOB ENTITIES 1-20, Respondents/Defendants. (civ. No. 03-1-2037) TERRI T. OKAMURA, Petitioner/Plaintiff, .T.C. CONSTRUCTION COMPANY, LIMITED, a Hawaii Corporation, and STATE FARM FIRE AND CASUALTY COMPANY, an T1linois corporation; DOE INDIVIDUALS 1-20, DOE CORPORATIONS 1-20; and DOE ENTITIES 1-20, Respondents/Defendants. (CIV. NO. 06-1-0126) CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NOS. 03-1-2037 and 06-1-0126) (By: Duffy, J., for the court’) Petitioner/Plaintiff-Appellant Terri T. Okamura’s application for writ of certiorari, filed on May 4, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, June 4, 2009. Junsuke Otsuka FOR THE couRT: for petitioner/ plaints f£-appeilant Grune. Duddy h + on the application Associate Justice Moon, C.J., Nakayana, Acoba, and Duffy, JJ, and * considered by: jaigned by ‘reason of vacancy. careuse Judge August, Arthur S.K. Fong ‘and Peter C.K. Fong for respondent /defendant~ appellee C.T.C Construction Company, Limited on the response 

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2009-06-04T00:00:00Z

8b5a9f7f-f148-4ddc-ac8a-9095cb707fe4

Razo v. State

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 20848 IN THE SUPREME COURT OF THE STATE OF HAWAI'I VINCE WILLIAM RAZO, Petitioner/Petitioner-Appellant © 7 vs. § STATE OF HAWAI'E, Respondent /Respondent-Appellee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S.P.P. NO. 07-01-0003(2); CR. NO. 03-1-0283(2)) RTTORART (By: Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on April 6, 2009 by Petitioner/Petitioner-Appellant Vince William Razo is hereby rejected. DATE! Honolulu, Hawai'i, May 8, 2009. BE For The cou: eo’ poe os S associate Justice Ceo Vince William Razo, petitioner, pro se, on the application. + considered by: Moon, €.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Chang, assigned by reaaoh of vacancy. 

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2009-05-08T00:00:00Z

fdaf45fc-1a89-4205-b58a-95c2c7bcfd03

State v. Burull

hawaii

Hawaii Supreme Court

LAW LIBRARY no. 28922 IN THE SUPREME COURT OF THE STATE OF RAWAT'T STATE OF HAWAT', 3, 3 nespondenr/Piaintit Appellee = to = 1 a vs. sed = 38 z rm NEIL J. BURULL, a y oS Petitioner/Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO. 3DTA-06-04140) RDER ‘Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on June 25, 2009 by Petitioner/Defendant-Appellant Neil J Burull is hereby rejected. Honolulu, Hawai'i, July 8, 2009. DATED: FOR THE COURT: sie ae y PN Associate Justice \a SEAL Coe ws Gregory T. Grab, on the application for pet itioner/defendant- appellant. land putty, 39. Considered by: Moon, C.J. Nakayama, Acob: céeouit Judge Hizes, in place of’ Reckténwala, J.) secused” 

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2009-07-08T00:00:00Z

f11a0aad-39a3-47ac-b598-d645876e8047

State v. Kahalewai

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 28685 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'T, 5 Respondent /Plaintiff-Appellee $4lx RADFORD KAHALEWAT, Petitioner /Defendant Appellant —————— CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 6-1-1299) REJECTI FOR WI BARI (By: Acoba, J., for the court") The Application for Writ of Certiorari filed on March 27, 2009 by Petitioner/Defendant-Appellant Radford Kahalewai is hereby rejected. DATED: Honolulu, Hawai'i, May 8, 2009, FOR THE COURT: Associate Justice Richard D. Gronna, on the application for petitioner/defendant- appellant. {considered by: Moon, C.J-, Nakayama, Acoba, Duffy, JJ., and Cérouit Judge Alm, assigned by reason Of vacancy. 

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2009-05-08T00:00:00Z

a6c30cc7-9e84-4af5-9c0a-ee7824638d9f

Vimahi v. Blondin

hawaii

Hawaii Supreme Court

IN THE SUPREME COURT OF THE STATE OF EAWAT'TZ NATASHA AVELA VIVANT and LOSEANE ENETI VIMAKT, ealtsonggo, vs. J THE HONORABLE KAREN N. BLONDIN, JUDGE OF THE, CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I and DIRECTOR OF PUBLIC SAFETY, STATE OF HAWAI'I, Respondents. ORIGINAL PROCEEDING (GHVSE NO. Osc1=1788) (ey: Moon, C.J., Nakayama, ACoEA Duffy, and Recktenwald, JJ.) Upon consideration of the petition for a writ of mandamus or prohibition filed by petitioners Natasha Anela Vinahi and Luseane Enits Vinahl and the papers in support, it appears that the circuit court and the intermediate court of appeals denied petitioners a stay of the writ of ejectment pending Ateposition of petitioners’ motion for reconsideration, net pending disposition of petitioners’ appeal. Petitioners’ notion to stay the writ of ejectnent pending appeal ss pending before the circuit court and petitioners have not filed a motion to stay the writ of ejectment pending appeal with the intermediate court of appeals, ‘Therefore, petitioners are not entitled to extraordinary relief. See Kema v, Gaddis, 91 Hawai'i 200, 204, 962 P.24 324, 238 (1999) (A writ of mandamus and/or prohibition ean extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the oats 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, June 2, 2009. 

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2009-06-02T00:00:00Z

35f4bee8-282c-4331-a662-f56f2d81d6ea

Tashio Holdings, LLC v. Anekona KBR LLC

29484

hawaii

Hawaii Supreme Court

No. 29484 IN THE SUPREME COURT OF THE STATE OF HAWAT'T TASHIO HOLDINGS, LLC, AXLE LLC, and MAX HOLDINGS, LLC, Respondent s/Plaintiffs-appel lees, ANEKONA KBR LLC, and BRIAN A. ANDERSON, Respondents/befendants-Appellees, and JOHN DOES 1-25, Defendants KB RESORT LLC, a Delaware limited liability company, Petitioner/Interested Party-Appellant. APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIV. NO. 06-1-1709) ORDER GRANTING MOTION TO DISMISS APPEAL (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and Circuit Judge Nishimura, assigned ‘by reason of vacancy) Upon consideration of appellant’s motion to dismiss appeal, the papers in support and the record, IT IS HEREBY ORDERED that the motion to dismiss appeal is granted. This appeal is dismissed. The parties shall bear their own costs and fees. DATED: Honolulu, Hawai'i, May 8, 2009. yr asec, Co Nentiney arte On orem. €: Rute Oh PnbeWsliona any 

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2009-05-08T00:00:00Z

62bf73ac-c871-4a49-8358-84be9b773599

Conner v. Crandall

hawaii

Hawaii Supreme Court

No. 29751 IN THE SUPREME COURT OF THE STATE OF HAWAI'I DE MONT R. D. CONNER, Petitioner, — / . THE HONORABLE VIRGINIA L. CRANDRLL, JUDGE, OF TH. CERCUIRY COURT OF THE FIRS? CIRCUIT, STATE OF HAWAI'E CLAYTON FRANK, DIRECTOR OF THE DEPARTMENT: OF PUBLIC SAFETY, Respondents. » aS ORIGINAL PROCEEDING (SPP NO, 06-1-0021 (Cr. Nos. 59460, 60121, 84-0553, @5-0110)) ‘ORDER (By: Moon, C.J.» Nakayama, Acoba, and Duffy, JJ. and Intermediate Court of Appeals Chief Judge Reckterwald, assigned by reason of vacancy) upon consideration of the petition for a writ of mandanus filed by petitioner De Mont R. D. Conner, the papers in support, and the record of SPP No, 06-1-0021, it appears that SPP No, 06-1-0021 is scheduled for an evidentiary hearing before the respondent judge on June 22, 2009 at 1:30 p.m. The June 22, 2009 hearing date was set by the respondent judge and counsels for the parties at the February 23, 2009 status conference. Petitioner was represented at the status conference by private counsel Jeffrey Arakaki, who was appointed as petitioner's counsel pursuant to HRPP 40(i), which obliged the respondent judge to appoint counsel to represent petitioner at the evidentiary hearing. Petitioner can discuss the evidentiary hearing with counsel Arakaki, who can move the respondent judge for orders regarding scheduling, transportation, and transcripts. Therefore, petitioner is not entitled to mandamus relief. See Kena v, Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (a writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right te relief and a lack of alterna’ @ means to redress adequately the alleged wrong or cbtain the requested action.). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, April 22, 2009. ow Pewee rectory Ouves AP ON Wn, Redeye + Met Li. ect bxmrh 

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2009-04-22T00:00:00Z

19c5027a-e711-492a-845b-f1759cb6d26f

State v. Werle

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 28653 IN THE SUPREME COURT OF THE STATE OF HAWAT STATE OF HAWAI'T, Respondent/Plainti £f-Appel Leal, Ts WILLIAM EDAARD WERLE, Petitioner/Defendant-Appelijgnt. oad eh eld 62 nee CERTIORARI TO THE INTERMEDIATE COURT OF APP! (CASE NO. 2DTA~06-01623) ATIORART (By: Duffy, J., for the court?) Petitioner/Defendant-Appellant William Edvard Werle’s application for writ of certiorari, filed on June 22, 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", guly 29, 2009. FOR THE COURT: Crane, Daly + Associate Justice Phyllis J. Hironaka, Deputy Public Defender, for petitioner /defendant- appellant on the application 2 considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and circuit Judge Chan, in place of Recktenvald, J., recused. 

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2009-07-29T00:00:00Z

1f285dfb-2dbf-4d12-bdfa-516db035eb72

Carter v. Town

hawaii

Hawaii Supreme Court

No. 29782 MICHAEL L, CARTER, Petitioner, THE HONORABLE MICHAEL A. TOWN, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent. ‘ORIGINAL PROCEEDING (SPP NO. 08-1-0037 (CR. NO. 04-1-1977)) ORDER Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Intermediate Court of’ Appeals Judge Nakamura, assigned by reason of vacancy) Upon consideration of the petition for a writ of mandamus filed by petitioner Michael L. Carter, it appears that petitioner fails to demonstrate a clear and indisputable right to relief, See Kena v, Gaddis, 91 Hawai'i 200, 204-05, 982 P.2d 334, 338-39 (1999) (A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action.). Accordingly, 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 £ IT IS FURTHER ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai", May 7, 2009. Yijnon. eC Noe a8 Gene Grane, aces he CGA Fiaharersem 

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2009-05-07T00:00:00Z

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Karagianes v. Department of Public Safety, State of Hawaii

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 29783 IN THE SUPREME COURT OF THE STATE OF HAWAI'I GARY KARAGIANES, Petitioner, DEPARTMENT OF PUBLIC SAFETY, STATE OF HAWAI'I, ass ORIGINAL PROCEEDING (By: Moon, Cud., Nakayama, Reobs, and Duffy, 39. and Circuit Judge Hirai, assigned by reason of vacancy} Upon consideration of the petition for a writ of mandanus filed by petitioner Gary Karagianes and the papers in Support, it appears that petitioner seeks mandamus relief against respondent by asserting that respondent unlawfully denied petitioner access to trust account funds needed for appellate expenses in No. 29572. However, respondent’s March 11, 2009 response to petitioner's request to access funds for No. 29572 advised petitioner that an itemized request was required and requested that petitioner resubmit his request in itemized form. Respondent’ request for resubmission was not a denial of petitioner's request to access funds for No, 29872. Petitioner resubmitted his request in itemized form on March 17, 2009 and petitioner provides no evidence that respondent denied the March 17, 2009 itemized request. Absent such evidence, petitioner fails to demonstrate a clear and indisputable right to relief. Consequently, 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 denonstrates a clear and indisputable right to relief and a lack of other means to redress adequately the alleged wrong or obtain the requested action.). Therefore, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'l, May 14, 2009. 

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2009-05-14T00:00:00Z

7327bf7c-c1ad-426d-aa3a-3bb9d29ece90

Boles v. Engle

29394

hawaii

Hawaii Supreme Court

No, 29394 IN THE SUPREME COURT OF THE STATE OF HAWAT' GLADYS BOLES, HERK BOLTON, HARRIET S. BOLTON, KeVri C. PAUL CHISENA, BERTHA B. CHISENA, LENA B. COOK, JI et al., for themselves and all others similarly 3% Respondents/Plaintiffs-Appellees, i vs. CLYDE ENGLE, Petitioner/Defendant-Appel lant, and NATIONAL DEVELOPMENT COMPANY, INC. and SUNSTATES CORPORATION, Defendants-Appellees. CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (s.P. NO, 06-1-0078) (By: Woon, C.J. for the court") Petitioner/defendant-appellant Clyde Engle’s application for writ of certiorari filed on May 6, 2009 is hereby rejected. DATED: Honolulu, Hawai'i, June’ 10, 2009. FOR THE COURT: fom * considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and circuit guage Mekenna, assigned by reason of vacancy. 

2a5d66139a2eeb7a6ca2c5a85751019133a21efe596b7df4e928d4c873e4dca1

2009-06-10T00:00:00Z

4ea23a9a-9517-4d19-8ddd-f8a1f1856d39

Barbee v. The Queens Medical Center

hawaii

Hawaii Supreme Court

NO. 28084 ae IN THE SUPREME COURT OF THE STATE OF HAWAT'T DAPHNE E. BARBEE, FINN T. BARBEE, and RUSTAM A. BARBEE, Petitioners/Plaintiffs-appellants, ‘THE QUEEN’S MEDICAL CENTER and WILLTAM YARBOROUGH, M.D., Respondents/Defendants-Appellees CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 04-1-0766-04) )RDER_ REJECT cION FOR WRIT ORARI (By: Moon, C.J., for the court”) Petitioners/Plaintiffs-Appellants Daphne £. Barbee, Finn 7, Barbee, and Rustam A. Barbee’s application for writ of certiorari, filed January 29, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, March 11, 2009. FOR THE COUR’ \ considered by: Moon, C.J., Nakayama, and Duffy, J3., and Cirevit Judge Crandall, in place of Acoba, J., recused, and Circuit Judge Wong, assigned by reason of vacancy. 

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2009-03-11T00:00:00Z

8897fe11-53a7-40a1-b5d6-1e5cfb530316

Williams v. Aona

hawaii

Hawaii Supreme Court

UAW LIBRARY No, 28691 I THE SUPREME COURT OF THE STATE OF HAWAT'T CEDRIC C. WILLIAMS, Respondent /Petitioner-Appellee ROBERT AONA, Pet itioner/Respondent-Appeliant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIVIL CASE No. 18507-1-859) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Duffy, J., for the court”) Petitioner/Respondent-Appellant Robert Aona’s application for writ of certiorari, filed on March 27, 2009, is hereby accepted. DATED: Honolulu, Hawai'i, May 6, 2009. FOR THE COURT: Youn £. PB Associate Justice Frederick W. Rohlfing and Michael G. Kozak for petitioner/respondent- appellant on the application 3 Boa FE jf 2 om 3 2 ° * considered by: Moon, C.J., Nakayama, Acoba, Duffy, JJ., and Chrcuse Judge chang, assigned by reason of vacancy. 

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2009-05-06T00:00:00Z

071a3604-ea33-4797-99ee-8ea79fd2f1b1

Estate of Roxas v. Marcos

hawaii

Hawaii Supreme Court

wo. 28702 IN THE SUPREME COURT OF THE STATE OF HAWAI'I ESTATE OF ROGER ROXAS; and THE GOLDEN BUDHA CORPORATION, a foreign corporation, Petiticners-Appeliees;? | IMELDA MARCOS, Respondent-Appellant, = |= cy = land FERDINAND MARCOS, Respondent. 2 2 Ok if & 6 = CERTIORARI TO THE INTERMEOTATE COURT OF APFERHS sa (CIV. No. 98-0522) (By: Nakayama, J., Zor the court’) Petitioners-Appellees’ application for writ of certiorari filed on March 31, 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, May 6, 2009. FOR THE couRT: Or Rane rnucuwyorn (SEAL Associate Justice 3 Ward D, Jones of Soe. Bervar & Jones and Daniel C. Cathcart of Magana, Cathcart § McCarthy for petitioner- appellee on the application ‘considered by: Moon, C.J., Nakayama and Duffy, JJ., Circuit Judge Del Rosario for Acsba, J+, Fecvaed and Circuit Judge Pollack, ‘aseigned by reason of vacancy. 

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2009-05-06T00:00:00Z

a7212daa-100f-491e-85bc-2a97b531dab1

Grindling v. State

29335

hawaii

Hawaii Supreme Court

LAW LIBRARY NO. 29335 IN THE SUPREME COURT OF THE STATE OF HAWAT'T CHRIS GRINDLING, Petitioner-Appellant,, vs. STATE OF HAWAI'I, Respondent-Appellee. r CERTIORARI 70 THE INTERMEDIATE couRT oF APPEALS” ({S.P.P. NO. 08-1-0001(2)/CR. NO. 98-0325(3)) o ORDER DISMISSING APPLICATION POR WRIT OF CERTIORARI ‘WE: 'PRETUDICE (By: Moon, C.J., for the court’) It appearing that the judgment on appeal in the above- referenced matter has not been entered by the Intermediate Court of Appeals, see Hawai'i Revised statutes § 602-59(a), as amended by Act 149 of the 2006 Hawai'i Session Laws; see also Hawai'i Rules of Appellate Procedure (HRAP) Rule 36(b) (1) (2006), XT IS HEREBY ORDERED that petitioner-appellant Chris Grindling’s application for writ of certiorari, filed April 29, 2009, is dismissed without prejudice to re-filing the application pursuant to HRAP Rule 40.1(a) (*No later than 90 days after the filing of the intermediate court of appeals’ judgment on appeal, or dismissal order, any party may apply in writing to the supreme court for a writ of certiorari.-) DATED: Honolulu, Hawai'i, May 8, 2009. FOR THE COURT: Petre fOr SEAL Re oe w + Nakayama, Acoba, and Duffy, 2., and circuit court: Moon, ¢. 

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2009-05-08T00:00:00Z

cb4c96d8-8a71-41b3-bbaa-4950c956acb5

Blaisdell v. Circuit Court of the First Circuit, State of Hawaii

29723

hawaii

Hawaii Supreme Court

No, 29723 IN THE SUPREME COURT OF THE STATE OF HAWAI'I RICHARD BLAISDELL, Petitioner, 3 ws. ay x CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAET and DEPARTMENT OF PUBLIC SAFETY, Responden ORIGINAL PROCEEDING (CIVIL NO. 04-1-1455) ORDER (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and Circuit Judge Raffetto, assigned by reason of vacancy) Upon consideration of the petition for a writ of mandamus filed by petitioner Richard Blaisdell, the papers in support, and the answer by respondent Circuit Court of the First Circuit, it appears that petitioner, having prevailed in his appeal of Civil No. 04-1-1455, has a clear and indisputable right to the declaratory and other relief sought from the circuit court and from defendant Department of Public Safety in Civil No, 0d-1- 1455. See Blaisdell v, Department of Public Safety, 119 Hawai'i 275, 196 P.3d 277 (2008). Civil No. 04-1-1455 was remanded to the circuit court on Decenber 2, 2008 with instructions to enter a declaratory judgment and certain orders, but such judgment and orders have not been entered to date. Petitioner moved the circuit court on February 9, 2009 to expeditiously dispose of Civil No. 04-1-1455, but the circuit court further delayed disposition by reassigning the case on February 11, 2009 and again reassigning the case sometime after March 27, 2009. Any further delay in disposing of Civil No. 04-1-1455 would be contrary to the circuit court’s duty to promptly and efficiently as Gispose of the case. Therefore, petitioner is entitled to mandamus relief. See Kena v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 324, 338 (1999) (A writ of mandamus is an extraordinary renedy that will issue where the petitioner denonstrates 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 granted. The Circuit Court of the First Circuit, shall, by June 1, 2009: (1) enter a judgment in Civil No. 04-1- 1495 declaring plaintiff Richard Blaisdell’s “restricted” account violative of HRS § 353-20 and order such relief to plaintiff as may be appropriate as a result of such declaration, and (2) order interest to the extent due but not yet credited, to be paid on plaintiff's accounts. DATED: Honolulu, Hawai'i, May 12, 2009. Frm Pease Oruadony are ONS Bon 6 Dati Q SAM 

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2009-05-12T00:00:00Z

dc04b533-1c06-4a02-b5f3-ab75858c7098

Himalaya-Fidele v. Blondin

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 29724 IN THE SUPREME COURT OF THE STATE OF HAWAT'T CAROL JEAN HIMALAYA-PIDELE, Petitioner, THE HONORABLE KAREN N. BLONDIN, JUDGE OF THE crgurT 5 COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I-and WELLS FARGO BANK, N.A. AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2007-CP1 ASSET-BACKED. CERTIFICATES, SERIES 2007-CPl, Respondents ORIGINAL PROCEEDING - (CIVIL NO. 08-1-1478) ORDER (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and Intermediate Court of Appeals Judge Watanabe, ‘assigned by reason of vacancy) upon consideration of the petition for a writ of prohibition filed by petitioner Carol Jean Himalaya-Fidele and the papers in support, it appears that the granting and entry of a writ of ejectment is innediately appealable pursuant to HRS § (Supp. 2008). See Penn v. Transportation Lease Hay. 630 P.2d 646, 649 (1981); Ciesla (1995), Petitioner can eat-2(a) Ltd, 2 Haw. App. 272, 274, Reddish, 78 Hawai'i 18, 889 P.2d 702 appeal from a writ of ejectment and can seek @ stay of the writ ‘Thus, petitioner is not See Kema v. Gaddis, 91 Hawai'i (A weit of prohibition is an pending appeal pursuant to HRAP 8. entitled to extraordinary relief. 200, 204, 982 P.2d 334, 338 (1999) extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action, Such writs are not intended to supersede the legal discretionary authority of the lower courts, 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 prohibition is denied. DATED: Honolulu, Hawai'i, april 20, 2009. Sr Ranta 6 nertapane aa Booms, Dvbliss Qunie KQ Klatarabe_ 

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2009-04-20T00:00:00Z

cb1628dc-93b4-43de-8b28-167844a17e9b

Tani v. Healy Tibbitts Builders, Inc.

28648

hawaii

Hawaii Supreme Court

LAW LIBRARY no. 28648 IN THE SUPREME COURT OF THE STATE OF HAWAI'I YVONNE B, TANI, Individually and as Next Friend of JERICA N. TANI-HIGA, BRONSON P, TANI-HIGA, CAMERON K.L. TANI-KTYOKANE, ANDI P. TANI-HIGA, and KALEO E. WONG BEATRICE NAKAUYE, Individually and as bersonal Representative of the Estate of NOBUO TANI; ICHIKO MORATIN; AUDREY TANI; and LAURIE SHICHIDA, Respondents/Plaintiffs-Appellees, HEALY TIBBITTS BUILDERS, INC.; and GEORGE LEOUE, Respondents /Defendants-Appellees, © and PLASTIC PILINGS, INC., Petitioner/Defendant-Apgel lant and “ DOE DEFENDANTS 1-100, Defendants and GEORGE LEOTA, HEALY TIBBITTS BUILDERS, INC. Respondent s/Defendants/Third-Party Plaintiffs-Appellees, PLASTIC PILINGS, INC., Petitioner/Third-Party Defendant-Appellant, and Respondent /Third~Party Defendant-Appellee, SAUSE BROS., INC., and DOE DEFENDANTS 1-100, Third-Party Defendants. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (crv. wo, 04-1-0482) ont “ATION FOR WRIT " Duffy, J., for the court’) Petitioner/Defendant /Third-Party Defendant-Appellant Plastic Pilings, Inc.'s application for writ of certiorari, filed on March 4, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, April 8, 2009, FOR THE COURT: Conic, Dotty, Associate Justice Steven K. Hisaka and Janice T. Futa for petitioner/defendant/ third-party defendant~ appellant on the application Robert G. Frame, Michael J. Nakano, and Mark S. Hamilton (Frame & Nakano) for respondents/ defendants /third-party plaintiffs-appellees on the response ‘considered by: Moon, C.J., Nakayama, Accba, Duffy, JJ., and Circuit Juage Pollack, aesigned by reason of vacancy. 2 

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2009-04-08T00:00:00Z

b3fcc1fb-bb72-48a5-bfa3-c1440e0b2002

State v. Kelly

hawaii

Hawaii Supreme Court

No. 26850 AH sone IN THE SUPREME COURT OF THE STATE oF Hawar‘} & ——— STATE OF HAWAI'Z, Respondent /Plaintiff-Appeliee 00% Wy DWAYNE KELLY, Petitioner/Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 05-1-2639) \G_ABPLICI OF CERTIOI 1 Duffy, J., for the court?) Petitioner/Defendant-Appellant Dwayne Kelly's application for writ of certiorari, filed on April 13, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, May 26, 2009. FOR THE couRT: Yorn, Duden « Aasoclate Justice Karen T. Nakasone, Deputy Public Defender, for petitioner /defendant- appellant on the application Donn Fudo, Deputy Prosecuting Attorney, for respondent /plaintiff- appellee on the response * considered by: Moon, C.J., Nakayama, Acoba, Duffy, JJ., and Circuit Judge Hirai, assigned by reason of vacancy. fate 

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2009-05-26T00:00:00Z

415ec456-2c74-443c-aaa6-1aa1c0ba2ce1

State v. Ganiron

hawaii

Hawaii Supreme Court

saw LIBRARY No. 28974 IN THE SUPREME COURT OF THE STATE OF HAWAI'T Respondent /Plaintiff-Appellee, STATE OF HAWAT’ EMILIO GANIRON, JR., Petitioner/Defendant-appeiiant. .2 on - ST js 2 a 22 = S CERTIORARI T0 THE INTERMEDIATE COURT OF AP! 2 (eR. NO. 07-1-1280) a 8 STION FOR EMILIO™A. GAM (By: Moon, C.J., for the court) It appearing that petitioner /defendant-appellant Emilio A. Ganiron, gy. filed an application for writ of certiorari on March 27, 2009 and a second, seemingly identical application for writ of certiorari on March 30, 2009, IT IS HEREBY ORDERED that the second application (filed March 30, 2009) is stricken as (1) unnecessary and (2) untimely inasmuch as March 30, 2009 is the ninety-first day measured from Revised the December 29, 2008 judgment on appeal, see Hawai Statutes § 602-59(c) Honolulu, Hawai'i, March 30, 2009. (supp. 2007). DATED: FOR THE COURT: , er considered by: Moon, C.J., Nakeyama, Acoba, and Duffy, JJ., and Circste sudge Cardoza, assigned by reason of vacancy 

3e148bce8ee71c97b73635315ea55c58419d3bfe601634bee0e03ec470325158

2009-03-30T00:00:00Z

8926a6ce-cd4c-4490-bbea-851c39018710

Murakami v. Hifo

hawaii

Hawaii Supreme Court

aw USRAF Wo. 29706 az IN THE SUPREME COURT OF THE STATE OF HAWAT" Md L- av obld GLENN NOBUKI MURAKAMI and ANN SUE ISOBE, Petits Les THE HONORABLE EDEN ELIZABETH HIFO, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'T; MICHAEL DAVID SAKATANI; ‘CHRISTINE MARIE SAKATANI; and 808 DEVELOPMENT LLC, Respondents. ORIGINAL PROCEEDING (CIVIL NO. 03-1-1712) ‘ORDER (By: Moon, C.J., Acoba, and Duffy, JJ., and Intermediate Court of Appeals Chief Judge Recktenwald, in place of Nakayama, J., recused, and Intermediate Court of Appeals Judge Watanabe, assigned by reason of vacancy) Upon consideration of the petition for a writ of mandamus and/or prohibition filed by petitioners Glenn Nobuki Murakami and Ann Sue Isobe and the papers in support, it appears that the question of whether the respondent judge was required to immediately determine the legal sufficiency of the March 10, 2009 declaration of judicial disqualification is reviewable on appeal from a final order ending the post~judgment No, 03-1-1712. proceedings in Civil Petitioners can appeal fron a final order pursuant to HRS § 641-1 (a) (Supp. 2008). Consequently, petitioners’ ¢ Ag not one in which the question of disqualification cannot otherwise be reviewed and immediate review by way of mandamus and/or prohibition is not warranted. Seq Koma v. Gaddis, 91 Hawai"i 200, 204, 962 P.2d 334, 338 (1999) (A weit of mandamus and/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 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.); Eeters v, Jamieson, 48 Haw. 247, 257, 397 P.2d 575, 582 (1964) (*(A] writ of prohibition will lie to compel a trial judge to recuse him[{] or [her]self because of bias or prejudice which appears from the record, where . . . the case is one in which the question of disqualification cannot otherwise be reviewed.”}. Therefore, IT IS HEREBY ORDERED that the petition for a writ of mandamus and/or prohibition is denied. DATED: Honolulu, Hawai'i, april 7, 2009. Cron 8. Dusery Oe PMC Meer Ci ch urine K.Q Watenalg_ 

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2009-04-07T00:00:00Z

6a5070f3-bdb4-471e-9804-99552fb481e1

State v. Tanaka

hawaii

Hawaii Supreme Court

LAWUBRARY No. 28681 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWATI, Respondent /Plaintiff-Appellee, JASON TANAKA aka KEVIN NAKAYAMA, Petitioner/Defendant-Appel lant CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (OR. NO. 04-1-0735) ORDER REIECTH WRI OF CER (By: Hoon, C.d., for the court") Petitioner/Defendant-Appellant Jason Tanaka aka Kevin Nakayama's application for writ of certiorari, filed February 18, 2009, is hereby rejected. DATED: Honolulu, Hawai‘i, March 11, 2009. FOR THE COURT: a i. SEAL ° 1 ud 6002 ‘ony aa 62 \ considered by: oon, C.J. Wakeyena, Acoba, and Duffy, uage Crandall, agaigned by reavon of vacancy 

99fe2ca49fc712be493ad743493fe8f08593202acae22b2994c205990b04655c

2009-03-11T00:00:00Z

79052aca-eff1-47bb-bafb-ebd065fcb779

Save Diamond Head Waters, LLC v. Hans Hedemann Surf, Inc.

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 27804 IN THE SUPREME COURT OF THE STATE OF HAWAI'I SAVE DIAMOND HEAD WATERS LLC., a Hawaii limited liability corporation; KAPIOLANI PARK PRESERVATION SOCIETY, LLC, a Hawail limited liability corporations MIKE ‘an individual, ‘an individual; and RICHARD K. QUINN, Petitioners/Appellants-Appellees, BEASON, HANS HEDEMANN SURF, INC., Respondent /Appellee-Appellant, and 2 = 2 @ x CITY AND COUNTY OF HONOLULU, by and through the DEPARTMENT OF PLANNING AND PERMITTING, Respondent /Appellee-Appel lee, and and McINERY FOUNDATION, a Hawaii corporation; HOTEL KAIMANA, INC., a Hawaii corporation, Respondent s/Appellees-Appellees. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CIV. NO, 05-1-1145) ING APPLICATION wi Duffy, J., for the court!) Petitioners/Appellants-Appellees’ application for writ of certiorari, filed on February 5, 2009, is hereby accepted and The parties will be will be scheduled for oral argunent. notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawas'i, March 16, 2009. sie Dane L. Miller and FOR THE COURT: Wilma Sur (of Miller LLP) Came. avetyrns — \g 2 oe Tokuyama & Sur, Associate Justice for petitioners/appellants- appellees on the application Nakayama, Acoba, Duffy, JJ., and son of vacancy. » considered by: Circuit Juage Alm, assigned by 2 William W.L. Yuen and Philip W.T. Chang (of Ching, Yuen & Morikawa) for respondent /appellee- appellant Hans Hedemann Surf, Inc. on the response Don S. Kitaoka, Deputy Corporation Counsel, for respondent /appellee- appellee City and County of Honolulu, by and through the Department of Planning and Permitting on the joinder 

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2009-03-16T00:00:00Z

f5606e3d-13ec-4795-920c-40707253239d

Murauskas v. Gusman

hawaii

Hawaii Supreme Court

NO. 29143 IN THE SUPREME COURT OF THE STATE OF HAWAI#I KEITH MURAUSKAS, Plaintiff-Appellant, vs. ELLEN GUSMAN, Defendant-Appellee. APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT HONOLULU DIVISION (Civ. No. 1RC06-1-5037) ORDER (By: Moon, C.J., Nakayama, Acoba, Duffy, and Recktenwald, JJ.) Upon consideration of the motion for reconsideration of the September 29, 2009 order denying the September 18, 2009 motion for extension of time to file an application for writ of certiorari and for a copy of the record on appeal, it appears that, contrary to the suggestion of petitioner, the September 29, 2009 order did not deny the September 18, 2009 motion on the grounds the motion was not filed within the ninety-day period for filing an application for writ of certiorari. Therefore, IT IS HEREBY ORDERED that the motion for reconsideration is denied. DATED: Honolulu, Hawai#i, December 14, 2009.

2d4f3478c13bffe7140ea2ec4f854bf1e93b7fd17ac30c72098a683e2ed14bac

2009-02-23T00:00:00Z

f6eb3095-9f9e-4402-ba09-4d582a6eb8c9

Coleman v. State

hawaii

Hawaii Supreme Court

wo. 28364 IN THE SUPREME COURT OF THE STATE OF HAWAI“I GARTH COLEMAN, Petitioner-Appellant, 3 : 3 2 = m = o STATE OF HAKAL‘Z, Respondent Appellee. —__ eee CERTIORARI TO THE INTERMEDIATE couRT oF arPExis (gibsB. Nor O4-1-002K; CR. NO. 39-0034) ORDER REJECTING APPLICATION £OR WRIT OF CERTIORARI Tayi Nakayanas Jes for the court’) Petitioner-Appellant’s application for writ of is hereby rejected. certiorari filed on January 9, 2009, Honolulu, Hawai'i, February 13, 2009. DATED: FOR THE COURT: Doon ONT RR iT Associate Justice Michael S. Zola for petitioner-appellant on the application Cosy Nakayama, Recbay and Duffy, Jd.) and mney. jason of vs ‘considered by: Moon, Guage Lee, assigned by 

e2b3a0978999876b762ab62769e0770c15e77f8f06820cf9ad9c79f990a45a10

2009-02-13T00:00:00Z

6984ee08-577b-4b03-b242-1089fda23be9

State v. Hinton

hawaii

Hawaii Supreme Court

No. 2 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'E, Respondent /Plaintitt-Appellant, MARSHALL HINTON, Petitioner /Defendant-Appel lee. CERTIORARI 70 THE INTERMEDIATE COURT OF APPEALS (CR. NO. 04-1-2546) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: for the court") Petitioner /defendant-appellee Marshall Hinton’s application for writ of certiorari, filed December 17, 2008, is accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. PATED: Honolulu, Hawai't, canvary 29, 2009. | FOR ‘THE COURT: 207 So: ehh 2 5 y 3 8 Moon, C.J.» Nakayama, Acoba, and Duffy gudge Blondin, assigned by ‘reason of vacancy, Ju. and cizeutt 

8a7966d0b033e1f559b737179b6b4e0016b4dca91b37535e916da4058f7f8b72

2009-01-29T00:00:00Z

761aecdb-11ce-4dc7-b9dc-37d59b6badc9

State v. Corn

hawaii

Hawaii Supreme Court

No. 28778 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'I, Respondent-Plaintiff-Appellee, JAMES L. CORN, JR., Petitioner-Defendant~Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 5-1-1800) (By: Duffy, J., for the court”) Petitioner-Defendant-Appellant James L. Corn, Jr. filed on January 15, 2009, application for a writ of certiorari, is hereby rejected. DATED: Honolulu, Hawai'i, February 23, 2009. FOR THE COURT: Kone soa, ds Associate Justice Ronette M. Kawakami, Deputy Public Defender, for petitioner-defendant- appellant on the application £2 eassuae ae L0:2 Considered by: Moon, C.J., Nakayana, Acoba, Duffy, JJ., and gned by Feason of vacancy: chreuse Judge chang, 

e761863e18ac6413deded202bf49146fb8f940a8e20d5019cebc3ec8d864ed2d

2009-02-23T00:00:00Z

2a73389c-f6dd-4276-a7b5-5943c74c2a87

In re “T Children: S.T. and M.T., III

hawaii

Hawaii Supreme Court

LAW LIBRARY Wo. 28573 IN THE SUPREME COURT OF THE STATE OF HAWAI'I IN THE INTEREST OF “I” CHILDREN: 8.7, and M.7., IIT (No. 28573; FC~s NO. 04-09462) oats OSs Hd 1 aasune IN THE INTEREST OF c.7. (No. 28587; FC=S NO. 0409460) IN THE INTEREST OF B.T-L (No. 28588; FC=S No. 04-09461) CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (Fe-S NOS. 04-09462; 04-09460; 04-09461) ORDER (By: Acoba, J., for the court”) ‘The Application for Writ of Certiorari filed on January 21, 2009 by Petitioner/Mother-Appellant is hereby rejected. DATED: Honolulu, Hawai'i, February 18, 2009. FOR THE COURT: @asociate Justice \eq Randal I. Shintani, on the application for petitioner /mother= appellant. 2 considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge iifo, assigned by reason’ of vacancy, 

513a114414d21d603b05a0fedb7dad628cd5d48a860afa11f6395d0fb3f956c1

2009-02-18T00:00:00Z

e68f1c2f-8dbb-40d3-9bb0-89e9b61215ea

Smith v. Kim

29628

hawaii

Hawaii Supreme Court

LAW LBRARY no. 29628 2 IN THE SUPREME COURT OF THE STATE OF HAWAT S ole a - m GARDINER BOSEY SMITH III, Petitioner, oje 3 a vs. s & ° THE HONORABLE GLENN J. KIM, JUDGE OF THE CIRCUIT SPURT o9 OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respond s ORIGINAL PROCEEDING (civ, NO. 07-1-0785) OADER (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and Intermediate Court of Appeals Juage Nakamura, ‘assigned by reason of vacancy) Upon consideration of the petition for a writ of mandamus filed by petitioner Gardiner Bosey Sith TIT and the papers in support, it appears that petitioner fails to demonstrate a clear and indisputable right to placenent of Civil No. 07-1-0785 on the ready calendar or to entry of a final default judgment. See Hawai'i Rules of Civil Procedure Rule 4(c) (service of a complaint and summons shall be made by personal service). Therefore, petitioner is not entitled to mandamus relief. See Kena Gaddis, 91 Hawai'i 200, 204-05, 982 P.24 334, 338-39 (1999) (A writ of mandamus is an extraordinary renedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action.). Accordingly, IT IS HEREBY ORDERED that the clerk of the appellate court shall process the petition for a writ mandamus without payment of the filing fee.  IT IS FURTHER ORDERED that the petition for a wri mandamus is denied. Honolulu, Hawai'i, February 23, 2009. Gov hawt er LT outed Bek INS Crea €. Kidlgs te + Cy Hh Dakar DATE! 

61b151645c26cbcef5f599331eaeedbb7f6d69b2be31e7d70123631964f9f80f

2009-02-23T00:00:00Z

b3c12bdc-2aad-44f4-9787-a6450b3b12bf

OGrady v. Nakamura

hawaii

Hawaii Supreme Court

No. 29612 ac 21 aaa suoe IN THE SUPREME COURT OF THE STATE OF HAWAT‘E = MICHAEL PATRICK O'GRADY and LEILANI 0! GRADY; Petitioners, 2021 THE HONORABLE GREG K. NAKAMURA, JUDGE OF THE CIRCUIT COURT OF THE THIRD CIRCUIT, STATE OF HANATI; STATE OF HAWAI'I; STATE OF HAWAI'I, DEPARTMENT OF TRANSPORTATION; COUNTY OF HAWAI'I; HAWAIIAN ELECTRIC COMPANY; HAWAIIAN ELECTRIC LIGHT COMPANY; HAWAIIAN ELECTRIC INDUSTRIES, INC.; and HULU LOLO, Lic, Respondents. ORIGINAL PROCEEDING (civ. No. 07-1-0372) (By: Moon, ¢.J., Nakayama, Acoba, and putty, 39. and Intermediate Court of Appeals Chief Judge Recktenwald, assigned by reason of vacancy) Upon consideration of the petition for a writ of mandamus filed by petitioners Michael Patrick O'Grady and Leilani O'Grady and the papers in support, it appears that there is no federal or state constitutional right to pro hac vice appearance of counsel before any Hawai'i state court, See Bank of Hawaii v. Kunimote, 91 Hawai'i 372, 388, 984 P.2d 1198, 1214 (1999), citing Leisy, Flynt, 439 U.S. 438, 442-43 (per curiam), reh’g denied, 441 U.S, 946 (1979). The pro hac vice appearance of Raymond Johnson as plaintiffs’ counsel in Civil No. 07-1-0372 was within the discretion of the respondent judge. See RSCH 1.9, The denial of pro hac vice appearance was not a flagrant and manifest abuse of discretion, Thus, petitioners are 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. Such writ is not intended to supersede the legal discretionary authority of the lower court. Where a court has discretion to act, mandamus will not lie to interfere with or control the exercise of that discretion, even when the judge has acted erroneously, unless the judge has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which it has a legal duty to act.). Therefore, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, February 12, 2009. G— Diecte Batra J ee Crea. Dey» MoE: (alae! 

7434da649efc706742163d04cbccc1b427933d04c6f3e40f8fd5c753198b1764

2009-02-12T00:00:00Z

2a8afadf-27fb-478c-bf5d-46986a1181dd

State v. Woodfall. ICA s.d.o., filed 10/30/2008 [pdf], 119 Haw. 232. Application for Writ of Certiorari, filed 01/20/2009. S.Ct. Order Accepting Application for Writ of Certiorari, filed 02/18/2009 [pdf]. S.Ct. Order of Correction, filed 05/15/2009 [pdf]. S.Ct. Order, filed 07/01/2009 [pdf].

120 Haw. 387

hawaii

Hawaii Supreme Court

+++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER IN THE SUPREME COURT OF THE STATE OF HAWAT'T 000. z STATE OF HAWAI'I, Respondent~Appellee, 37|~ sOUWY 62 uay| MICHAEL WOODFALL, Petitioner-Appellant.” 3)” Se no, 28838 1 CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 06-1-0430) APRIL 23, 2009 MOON, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ. AND CIRCUIT JUDGE AHN, ASSIGNED ‘BY REASON OF VACANCY OPINION OF THE COURT BY NAKAYAMA, J. Defendant-Appellant-Petitioner Michael Woodfall petitions this court to review the Intermediate (*Woodfall") (SICA’s") November 18, 2008 judgment affirming Court of Appeals’ the October 10, 2007 judgment of the first circuit court! convicting Woodfall of the offenses of (“circuit court”), in violation of Hawai'i identity theft in the second degree, Revised Statutes ("HRS") 5 708-839.7 (Supp. 2006),? forgery in ‘The Honorable Richard X. Perkins presided. + uns § 208-839.7, entitled “Identity theft in the second degree,” states, in its entirety: identity theft in (2) A person commits the offense of causes to be made, the second degree if that person makes oF either directiy or indirectly, 9 by any oral statement, any britten statement, oF any statement conveyed by any Slectronic means, with the intent to commit the offense of theft in the second degree from any person or entity continue, o3aus  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. the second degree, in violation of HRS § 708-852 (Supp. 2006),? and attempted theft in the second degree, in violation of HRS § 705~$00 (1993)* and HRS $ 708-831(1) (b) (Supp. 2006)*. We accepted Woodfall’s application for a writ of certiorari, and (2) Identity theft in the second degree ie a class B felony. (Emphasis added.) > nas § 708-852 provides: (2) A person commits the offense of forgery in the second degree if, with intent to defraud, the person falsely makes, completes, endorses, or alters 2 written instrurent, Of utters s forged instrument, or fraudulently encodes the agnetic ink character recognition sunbers, which 1s or purports to be, of which is calculated to become or to, tf completed, a deed, wiil, codieil, contract, spt, commercial instrument, of other instrument shich does or may evidence, cr oF otherwise affect a legal right, interest, obligation, or i2) rorgery in the second degree is a class C felony + aes $708. 0 provides, An ite entirety: (2) A person is guilty of an attempt to commit a crine if the person: [al IntentSonally engages in conduct which would constitute the crine if the attendant cireunstances Were as the person believes them to ber or () IntentLonally engages in conduct which, under the circumstances as the person Believes them to be, constitutes a Substantial step ina course of conduct intended to culmina the person's commission of the crime. (2) when causing a particular result is an element of the erine, 3 person ie guilty of an attempt to commit the crime if) acting with the state of mind required to establish lisbilicy with Fespect to the attendant circurstances specified in the definition Of the crime, the person intentionally engages in conduct which 1s 2 substantial step ina course of conduct intended of known to Cause such a result, [3) Conduct shati not be considered a substantial step under this section unless lt is strongly corroborative af the defendant’: criminal intent. * onder ts § 708-851(1) (b), “[a} person commits the offense of theft in the Te the pergon commits theft” “[olf property of Services the ‘exceeds $300[.]" 2  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER ** oral argunent was held on March 19, 2008. Woodfall asserts that the ICA gravely erred by affirming the circuit court's judgment of conviction, inasmuch as the HRS $ 708-839.7 phrase “transmission of any personal information of another” prohibits the “transmission of any personal information” of an actual person, and he transmitted information associated with a fictitious person. Because HRS § 708-839.7 is susceptible to two interpretations, we construe the statute under the rule of lenity and in favor of Woodfall. Accordingly, we vacate the lower court's judgment and order and remand the case to the circuit court for resentencing. ‘BACKGROUND Woodfall Charged With Identity Theft In The Second Degree on March 6, 2006, the State of Hawai'l (“the prosecution”) filed a complaint alleging that Woodfall committed the following offenses: (1) identity theft in the second degree, (2) forgery in the second degree, and (3) attempted theft in the second degree. The parties did not dispute the facts that led to this complaint. On February 27, 2006, Woodfall attempted to cash a check from maker Design Build, Incorporated, payable to Christopher 8. Bailey -- a fictitious person -~ at the First Hawaiian Bank located at 438 Hobron Lane, in Honolulu, Hawai'i. Woodfall identified himself to a bank teller as Christopher 8. Bailey, presented an Idaho driver's license in the name of Christopher 8. Bailey, and endorsed the check. when the teller discovered that the account of the maker had insufficient funds to cash the check, she subsequently contacted the maker’s bank 3  ‘OR PUBLICATION IN WEST HAWAII REPORTS AND PACIFIC REPORTER, branch. The teller was instructed to detain Woodfall and notify the police. Upon investigation, the police discovered that the maker did not issue “Christopher B. Bailey” a check and that Christopher 8, Bailey was a fictitious person. B. Woodfall’s Motion To Dismiss Count T Woodfali filed a motion to dismiss count I of the complaint, identity theft in the second degree (“notion to dismiss"), on December 27, 2006. Woodfall argued that, based on Hawai'i case law and the HRS § 701-118(8) (Supp. 2006) definition of “another,” the statutory language of HRS § 708-839.7 prohibiting “a transmission of any personal information of another,” refers to the “transmission of any personal information” of an actual person. Woodfall reasoned that he attempted to assume a fictitious identity but did not attempt to transmit the “personal information of another.” Therefore, he urged the court to dismiss this count. ‘The prosecution filed an objection to this motion on January 17, 2007, highlighting HRS § 708-639.7's phrase “personal information.” The prosecution pointed out that for purposes of Chapter 708, “personal information” is defined as “information associated with an actual or a fictitious person . . . that is used . . . to confirm the identity of an actual or a fictitious person." HRS § 708-800. It concluded that the elements “a transmission of any personal information of another” include “a transmission of personal information of a fictitious person.” (Emphasis added.) At the January 17, 2007 hearing on this motion, Woodfall argued that “the ‘personal information’ [of HRS 5 708- {++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 839.7] is now qualified by the words ‘of another.’ The definition ‘of another’ by statute or by case law is a human being who was born and alive.” Woodfall’s counsel reiterated that under the plain language of the statute, Woodfall cannot “legally be found guilty of identity theft when he did not use the identity of an actual real person.” The prosecution countered that the statute and the statutory definitions of “personal information” and “another” provide adequate notice that the conduct requirement of HRS § 708-639.7 prohibits the transmission of personal information of an actual or fictitious person In an order dated February 23, 2007, the circuit court denied Woodfali's motion, concluding that the phrase in question prohibits the transmission of any personal information of an actual or fictitious person. The court rejected Woodfall’s narrow interpretation of HRS $ 708-839.7, noting that it would be “directly at odds” with the HRS § 708-800 definition of “personal information.” It further held that “it certainly is not clear -- especially in light of [HRS $] 708-800's definition of ‘personal information’ - that the legislature's use of ‘another! was meant to exclude fictitious persons.” In denying Woodfall's motion, the court constructed “another” as follows: 1A construction of the term “another” that would give force to and Preserve both the legislature's intent to exclude tne tranceiseren $be°835"7°and’the cincormation associated with a fictitious person” Language of [HRS §] 108-800" Sefinition of "personal Enformation” is simply ~~ "any real or fictitious person other than the person trangaieeing the information.” on January 17, 2007, Woodfall pled no contest to forgery in the second degree and attempted theft in the second 5  "+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. degree. After the court denied Woodfall’s motion to dismiss, on June 15, 2007, Woodfall pled guilty to the charge of identity theft in the second degree. The court agreed to follow the plea agreenent between the prosecution and Woodfall, which included the following terms: (1) Woodfall must serve an open ten year tezm to run concurrently with counts II (open five year sentence) and III (open five year sentence) and with any other sentence he is serving, and (2) Woodfali’s guilty plea in count I is conditional,‘ and Woodfall preserved the right to appeal the circuit court’s ruling denying his motion to dismiss. The court entered final judgment on October 10, 2007. Woodfall filed @ notice of appeal on November 8, 2007. C. ICA Affirmed The Circuit Court’s Ruling on appeal, Woodfall argued that the plain language of the HRS § 708-839.7 phrase “transmission of any personal information of another” prohibits the transmission of personal information from a real person, but not a fictitious person. Woodfali also maintained that, even assuming that the statute is ambiguous and the court is required to resort to the statute's legislative history, extrinsic documents verify that the statute intended to “provide criminal penalties for those who steal the Adentity of another.” (Quoting Sen. Stand. Conm. Rep. No. 446, in 2002 House Journal, at 1409-10.) (Emphasis in original.) ‘The prosecution argued that the circuit court's * Onder Hawai'i Rules of Penal Procedure Rule 11(a) (2), “a defendant nay enter a conditicnal plea of guilty of nolo contendere, reserving in Writing the right, on appeal from the judgrent, to seek review of the adverse Setermsnation of any specific pretrial motion, A defendant who prevails on appeal shall be allawea to withdrew the plea.” 6 + Yo UMC ATION IN WEST'S HANA REORTS AND PACE RORTER sing a false of Gctitious sities.” (Quoting fee. Cont. Cerm top. Ho. 25, An 2092 sooge Journ, at 2768.) (Bphasie in origina.) Seren ered orice re et es es Lane et cst “Ere ety ae with the intent to commit the ‘of theft in the second aegree™ often: (Enphasis added.) Noting that “Woodfail admitted that he used a fictitious identity with the intent to commit theft in the second degree," the ICA declined to reverse the circuit court's decision to deny Woodfall’s motion to dismiss. The ICA filed a judgnent on appeal on Novenber 18, 2008. on January 20, 2009, Woodfall filed a timely application for writ of certiorari. III, STANDARDS OF REVIEW AL certiorari ‘The appropriate standard of review for determining whether to accept or reject an application for writ of certiorari  ‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER. is set forth in Hawai'i Revised Statutes ("HRS") § 602-59 (Supp. 2008), as follows: (a) After sesuance of the intermediate appellate court's joggment ‘or disnissal order, a party may Seck review of the Intermediate appellate cours’: Secision and judgment oF dismissal order only by application to the suprene court for a writ of certiorari, the acceptance or rejection of which Shall be discretionary upon the supreme court, —{b) The application for writ of certiorari shail tersely stave ite Grounds, which shall include: 1) Grave errors of law oF of facts or (2) Obvious inconsistencies in the decision of the intermediate: appellate court with that of the suprene court, federal Secisions, or its own decision, and the magnitude of those errors of inconsistencies aictating the need for forther sppeal. Statutory Interpretation “the interpretation of a statute is a question of law reviewable de novo.” Capua v, Weyerhaeuser Co., 117 Hawai"i 439, 443, 184 P.3d 191, 196 (2008) (citing Flor v, Holguin, 94 Hawaii 10, 76, 9 P.3d 382, 388 (2000)) (brackets, citations, and ellipses omitted). Statutory construction is guided by the following rules: First, the fundamental starting point for statutory interpretation is the language of the statute itself, Second, where the statutory language 1s plain and unambiguous, our scle duty is to give effect to ite plain and obvious meaning. Third, implicit in the task of Statutory construction 2 our foremost obligation to Sscertain and give effect to the intention of the Legislature, wiich Ls to be obtained primarily from the Isnguage contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used ina statute, an ambiguity exists, “And fifth, in construing an ambiguous Statute, the meaning of the ambiguous words may be sought by Gxanining the context, with which the ambiguous words, Phrases, and sentences nay be compared, in order to Sccertain their true meaning. Carlisle v. One (1) Boat, 119 Hawai'i 245, 256, 195 P.3d 1177, 1188 (2008) (quoting In xe Contested Case Hearing on Water Use Permit Application, 116 Hawai'i 481, 489-90, 174 P.3d 320, 328-29  FOR PUBLICATION IN WEST'S HAWA REPORTS AND PACIFIC REPORTER (2007)) (block quotation format altered) . III. DISCUSSION As previously stated, Woodfall challenges the ICA's interpretation of HRS § 708-839.7, arguing that the term “of another” is a crucial and plain element of the statutory phrase “transmission of any personal information of another.” He further maintains, in the alternative, that this interpretation is supported by the statute's legislative history: the statute's purpose “is to provide criminal penalties for those who steal the identity of another . . .” (Quoting Sen. Stand. Com. Rep. No. 2960, in 2002 Senate Journal at 1421.) Woodfall contends that his use of @ fictitious identity did not satisty the conduct element of identity theft in the second degree, and he urges this court to vacate the circuit court’s order denying his motion to dismiss this charge. A. Plain Language of HRS § 708-839.7 To analyze HRS § 708-839.7, we begin with the language of the statute itself. HAS § 708-839.7 provides, in relevant part: A person commits the offense of identity theft in the second Gegree if chat person makes of causss to be made, either Gizectly or indirectly, ‘a transmission of any personal formation of ansther by any oral statenent, ony written Statement, or any statement conveyed by any electronic, eans, with the intent to sonait the offense of theft in the Second degree from any person or entity. (Emphasis added.) Specifically, we focus on the phrase “a transmission of any personal information of another.” “(Personal information” is defined in HRS $ 708-800, for purposes of Chapter 708, as follows: Antormaticn associated with an actual person of a fictitious 9  FOR PUBLICATION IN WEST'S HAWALI REPORTS AND PACIFIC REPORTER *** Reraon that 1s a name, an address, a telephone nunber, an Glectronie mail address; a driver's License number, a/ social Security nonber, an employer, 0 place of employment, information related to enployment, an employee identification aunber, a mother’s maiden name, an identifying number ofa depository account, a bank account funber, a password used for accessing information, or any Sther fame, number, oF code that is used, alone or in Conjunction wien other infermation, Eo sonfiem the identiey pianactual ora fictitious person (Emphases added.) Similarly, we apply the HRS § 701-118 (Supp. 2006) definition of “another” to HRS § 708-839.7, inasmuch as this definition applies to the entire Hawai'i penal code “unless a different meaning plainly is required.” We decline to accept the prosecution’s argument that the HRS § 701-118 definition of “another” is “special,” and that the identity theft statute applies the “ordinary” dictionary meaning of “another.”” See HRS § 701-118 (defining various terms to apply “[iln this Code, unless a different meaning is plainly required”); see also HRS § 701-102 (3) (1993) (“The provisions of chapters 701 through 706 of the Code are applicable to offenses defined by other statutes, unless the Code otherwise provides.”). Thus, “another,” as stated in HRS § 708-839.7, employs the HRS $ 701-118 definition, “any other person,” and “person” is further defined as “any natural person.”* HRS § 701-118. “[A]nother” in HRS § 708-839.7, ° The prosecution contends that “the legislature desired the term ‘personal information’ ag defined in (HRS § 708-800) to be used in qualifying the phrase “of another.” It argues that the definition of "personal information” "is contained in the sane chapter as [HRS § 708-839.7) and ereated by the same piece of legislation.” However, we aust first construct the statute based on its plain language before considering extrinsic evidence. + person” is defined in HRS § 701-118's as, “any natural perscn, including eny natural person whose sdentity can be established by means of scientific analysis, including but not limited to scientific anslysia of Geoxyribonucleic acid and fingerprints, whether or not the natural perscn’s Eontinue... 10  ++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER + therefore, refers to any “natural person” other than the person who “makes or causes to be made, either directly or indirectly, a transmission of any personal information . . . with the intent to commit the offense of theft in the second degree from any person or entity.” (Emphasis added.) The terms of HRS § 703-839.7, therefore, conflict: “another” is defined as a “natural person,” but “personal information” includes “information associated with... a fictitious person." Based on these differences, Woodfall and the prosecution dispute the plain meaning of HRS $ 708-839.7. According to Woodfall, the words “of another" is a wmoditying term” of “personal information,” and “limit (] the prohibitions of the statute only to information from a natural, actual person.”* Therefore, HRS § 708-839.7 requires the + ccontinve ame is known, and, where relevant, a corporation of an unincorporated associationt]” + Alchough “another” is already defined in HRS § 708-118 for purposes of the entire Hawai's penal code, see supra, Woodfall also points to Hawai'i case law defining "another" for purposes of interpreting HRS’ $ 108 839.7. Woodfall cites to three cases, 1 Haw. Bpp- 13, 25, 613 P.24 1326, 1333 (1980) (determining that tho choice of evils defense vas ot available co the defendant necause a natural person ~~ and not a delphin ~ “ia'*another,” pursuant to HRS § 701-116), Stace's. garding, 101 Hawa’: 3, 9-10, 61 F.3d 514, 519-20 (App. 2002) (holding that the defendant may not use the choice of evils defense for protecting an unborn child where t) Legislature did not Inclue “unborn children” in the definition of “another” or person"), and stats v, Aiwshi, 109 fawai's 11S, 123 P.3d 1230 (2005), arguing that’ they each Interpret “another” ag a “natural person” and not a Fictitious person. Under the sane analysis of Levasseur and Jaxding, = fictitious person ts not included in the definition of ‘ansther” or “person.” See Levasseur, 1 Haw. App. at 25, 613 F.2d at 1333; Jarding, 101 Hawai'i at 9- 10, 61 P.3a at 519-20. woodfall also cites to Aixohi to support his claim that “another” clearly refers to an actual person. In Aiohi, this court reviewed the Eequirenents of HRS § 707-702(1) (aj, which states that *(a) person commits the offense of manslaughter if . . . {nje recklessly causes the death of anather parson.” 109 Hawai at 118-29, 123 P.dd at 1213-24 (emphasis added) «The continue. a  ‘OR PUBLICATION IN WEST'S HAWALI REPORTS AND PACIFIC REPORTER. transmission of any other natural person's personal information. In our view, Woodfall presents a strong argument. The words “of another” appear to qualify the phrase “personal information.” Woodfall’s interpretation of HRS § 808-839.7, therefore, may be valid under the plain language of the statute. ‘The prosecution's interpretation of HRS § 708-839.7 is also persuasive. As the circuit court reasoned, if the phrase “personal information of another” “refers only to personal information of a real person, not a fictitious person,” it would directly contradict the statutory definition of “personal information.” See HRS § 708-800 (defining “personal information” as “information associated with an actual person or a fictitious person”). Presented with these conflicting terms, the circuit continue defendant argued, anong other things, that her manslaughter prosecution Contragicts the plain language of the manslaughter statute, inasmuch joa prenatal conduct was directed at her fetus, which ie not a. Foquires by the statute.” id, at 117, 123 P.34 at 1223. Tais court agreed, Foling that (1) the manclaughter statute is clear and ambiguous and (2) a tus does not fit within the RS § 707-700 definition of “person.” Id. at 126-29, 123'P.34 at 1223-24. Woodfall’s reliance of Aiuahi is sisplaced. Aiwohi!s analysis of HRS $ 707-700's “person” is irrelevant here, where (1) we are examining the word “another,” not “another person," and (2) the identity theft statutes are not in Chapter 707 and are not governed by the chapter’ s Sefinitions The prosecution counters that Aiuohi actually supports its interpretation of “another.” In Biuchi, this court noted that “person” is defined, in two ways ~~ the general awai'l penal code definition ("any natural jo defined in HRS § 701-118(7}) and the definition governing Le hnunan being who has been born and is alive,” ae defined an HRS § and applied the chapter's definition in interpreting the manslaughter statute. 109 Hawai'i at 118, 123 P-3d at 1213. Based on Aiwohi, The prosecution argues that “the definitions to be applied shovid come fron the Sane chapter of the penal code as the charged offense, rather than using general definitions from other chapters,” and that, here, “personal Information” as defines in HRS § 108-800 trumps the definition ef "another" in HRS § 701-118. Although this court applied the spectfic definition of Sperton” to determing if the term inclodes a fetus, a# opposed to the general Hguai's penal code definition of “person,” the two definitions did not conflict. Aiuohi did not suggest ‘that the chapter's definicion trumps the general pensi code definition: 12  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER court determined that the word “ancther” must refer to “any real or fictitious person other than the person transmitting the information.” Constructing “another” this way would correspond with the definition of “personal information,” but doing so would impermissibly require this court to add terms to the definition of “another.” See State v, Aiwohi, 109 Hawai‘i 115, 129, 123 P.3d 1210, 1224 (2005) (“(A] criminal statute ‘must be strictly construed and . . . cannot be extended beyond the plain meaning of the terms found therein.’ (quoting State v. Johnson, 50 Haw. 525, $26, 445 P.2d 36, 37 (1968)))7 State v, Mueller, 102 Hawai'i 391, 394, 76 P.3d 943, 946 (2003) (*[T]his court cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts.”) (internal quotation marks and citation omitted). We cannot accept this construction, inasmuch as it would directly contradict the definition of the word “another.” The prosecution also asserts that the statute cannot prohibit the transmission of “information associated with an actual person” but not information associated with a fictitious person because such a result would be absurd. See State v Rates, @4 Hawai‘i 211, 220, 933 P.2d 48, 57 (1997) ("Provisions of a penal statute will be accorded a limited and reasonable interpretation . . . in order to preserve its overall purpose and to avoid absurd results.”). Tt claims that the identity theft statutes were “designed to protect individuals and businesses from loss due to @ defendant's misrepresentation of his actual identity.” We disagree, As further discussed below, the 3  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER * legislature appeared to be concerned with protecting the person whose identity was stolen. See Hse. Stand. Comm. Rep. No. 446, in 2002 House Journal, at 1409-10 (expressing concern that “misappropriation of other people's identification information is on the rise”); Hse. Conf. Comm. Rep. No. 25, in 2002 House Journal, at 1765 (same); see also infra. Indeed, in recognition of the harms of identity theft, the U.S. Congress provided additional criminal penalties for identity theft “of another person.” 18 U.S.C. § 1028A (2004) (imposing a term of imprisonment of two years to a person committing certain felony violation and “knowingly transfer[ring], possesses(sing], or us{ing], without lawful authority, a means of identification of another person”). In adopting this legislation, the Committee on the Judiciary noted the increasing problem of identity theft, “crimes in which someone wrongfully obtains and uses another person's personal data in some way that involves fraud or deception, typically for economic or other gain. . . .” H.R. Rep, No. 108-528, at 4 (2004), reprinted in 2004 U.S.C.C.A.N, 779, 780 (emphasis added). Tt observed the FTC's random sample survey that suggested that almost ten million Americans were victims of some form of identity theft in 2003. Id. It further noted that identity theft threatens national security and that it cost businesses and financial institutions $47.6 billion and individual consumers 95.0 billion, and that it harmed the credit rating of the person 4  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** those identity was stolen.” Id. Contrary to the prosecution's argument, it would not be absurd if HRS § 708-839.7 provided criminal penalties for transmitting the personal information of another actual person but not the information of a fictitious person, with the intent to commit theft in the second degree from any person or entity. Because both parties’ construction of the identity theft in the second degree statute are plausible based on the statute's plain language, we next consider the legislature's intent in creating the statute. B. Extrinsic Aids As previously quoted, in the event of anbiguity 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 aeaning- Moreover, the coures may Fesort to extringic aids in determining legislative intent, such a5 legislative history, oF the reason and spirit of the law State v. Baviv, 118 Hawai'i 1, 7, 185 P.3d 186, 192 (2008) (citing Peterson v. Hawaii Elec, Light Cou, Inc., 85 Hawaii 322, 327-28, 944 P.2d 1265, 1270-71 (1997), superseded on other grounds by HRS § 269-15.5 (Supp. 1999)) (internal quotation marks omitted). 1. Legislative history of HRS $ 708-839.7 ‘The original bill that enacted HRS § 708-839.7, House Bill 2498, sought to amend chapter 708 by adding new sections " smples of the danage that people wer: capable of when stealing another person’ s identity == they used the identities of other actual people ss part of a pict to blow up Los Angeles International Airport and to obtain Federal incone tax returns, loans and Lines of credit, nd government benefits, H.R. Rep. No. 108-S28, at Su6 (2004), reprinted io 200¢°0.5-C.C.A.N. at 781-82. a5  HAWAII REPORTS AND PACIFIC REPORTER FOR PUBLICATION IN WEST’ regarding (1) “identity theft,” (2) “obtaining a government- issued identification document under false pretenses,” and (3) “deceptive use of a fictitious identity.” H.B, No. 2438, 2ist The Lil sought to add three new sections regarding identity theft, which were entitied “Identity theft in the first degree,” "Identity theft ‘in the Second dearee, ana "Identity thefe in the thiza degree.” ks §.708-839.6 (Supp. 2008), entitled “Identity theft in the first degree,” provides in relevant pare (2) A person conaits the offense of identity theft in the first degree if that person makes or causes to be made, either directly of indirectly, a transniasion of any peracnal information of another by any oral statement, any written statement, oF any. Statement conveyed by any electronic means, with the intent cot a) Facilitate the commission of a murder in any degree, 2 class A felony, Kisnapping, unlawful imprisonment in any degree, extortion in any degree, any offense Under chapter 134, crininal property damage in she firet or second degres, scape. in any Gogree, any offense under part VI of chapter 110, any offense under Section 711-1103, or any offense under chapter 842; or (B) Conmit the offense of theft in the first degree from the person whose personal information is used, or from any other person or entity. RS § 708-839.8 (Supp. 2008), entitled “Identity theft in the thir degree,” states: (2) A person commits the offense of identity theft in the third degree’ if that person Makes or causes to be made, either Girectiy or indirectly, a tranemiesion of any personal information Of another by any oral statement, any written statement, OF any. Statement conveyed by any electronic means, with the sncent £0 Commit the offense of theft in the third of fourth degree from any person oF entity. (2) Tdentity theft in che third degree is a class C felony. % The proposed “Deceptive use of a fictitious identity” anendzent (2) A person commits the offense of deceptive use of & fictitious identity if that person, with the intent to deceive the person or entaty to whom the statement is directed, makes oF Eouses to be made, either directly or indirectly, by any oral Statenent, any written statenent, of any statenent conveyed by ani Slectronie means, a trananisaion of fictitious personal” Infornation of 2 person purported to be real but who ie flotitious. (2) Deceptive use of 2 fictitious identity is a misdensancr, H.B. No. 2438, 2st Leg., Reg. Sess. (2002). 16  * FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER Leg., Reg. Sess. (2002).! The legislature passed this act, but removed the bill's “deceptive use of a fictitious identity” amendment and the “personal information” definition for HRS Chapter 710. H.B, No. 2438, H.D. 1, 2ist Leg., Reg. Sess. (2002); H.B. No. 2438, H.D. 1, S.D. 1, 21st Leg., Reg. Sess. (2002); #.B. No. 2438, H.D. 1, S.D. 1, C.D. 1, 2ist Leg., Reg. Sess. (2002). The Conference Committee report, written by the committee that last amended House Bill 2438, provided that “(tJhe purpose of this bill is to provide criminal penalties for Persons: (1) Committing identity theft of another individual; and (2) Obtaining identity documents under false pretenses or using a false or fictitious identity.” Hse. Conf. Comm. Rep. No. 25, in 2002 House Journal, at 1765. Importantly, the final form of the bill was intended to criminalize “identity theft of another individual,” (emphasis added), indicating that the legislature intended that the identity theft statutes only relate to the transmission of another actual person's personal information. Moreover, the legislative intent to criminalize “using a false or fictitious identity,” appears to relate to the amendnent regarding obtaining a government-issued identification document under false pretenses, inasmuch as it is juxtaposed with the purpose of prohibiting a person from “[olbtaining identity committees on Judiciary and Hawaiian Affaire and ind Commerce announced that the bill served to criminalize acts that appear to correspond with those sections: (1) “[s]tealing the identity of another (first section), (2) “{o]beaining identity documents under £21se pretenses” (secona section), ana (3) "(u)sing false or fictitious identity (thira section) Stand. Comm. Rep. No. 446, in 2002 House Journal, at 1408-10 (emphasis added uv  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER documents under false pretenses or using a false or fictitious identity. Furthermore, in discussing the problem of identity theft," the House Judiciary and Hawaiian Affairs and Consumer Protection and Commerce Committee and the Conference Committee took issue with transmitting any other actual person’s information. The committees expressed concern that the penalty for “using a false or fictitious identity,” refers to tthe criminal statutes fegarding “sbtaining 2 government-issued identification document under false pretenses” (codified as HRS §§ 710-1016.3-.4 (Supp. 2008))-. HRS $§ 710-1016. 3~.4 provide criminal penalties for’a person who “obtaiA(s] identity documents =» - using's false or fictitious identity.” ‘These sections. pronibie: obtain(ing) an identification document tesued by the state oF any political subdivision therect by (a) (mlsking any satemant, oral or written, Eolbetrue, “in an application for any identification Gocument issued by the State or any political subaivision thereof; or (b) (slubmitting or inviting reliance on any uriting that the person knows to be falsely mags, completed, or altered HRS $6 710-1016.3-.4 (emphases added). Under these statutes, 2 person is prohibited from knowingly falsely identifying him or herself’ as a fictitious Person to “obtein() an identification document issued by the State or any political subdivision thereof.” The plain language of the statute inde Sprovide(s) criminal penalties for persons ... . (obtaining identity documents under false pretenses oF Hse. Conf. Comm. Rep. No. 25, in 2002 Rouse Journal, at 1763 {emphasis added) . 1 the Senate committee on Judiciary discussed the broader issues related to identity theft, as follows: [t)0 Light of the terrorist attacks of september 11, 2001, tthe rans fications of identity theft have proven much nore grave than previously thought. Iéentity theft, » nage Problem in financial fraud and theft cases, now has. Inplicacions for national security. This measure. provides a comprehensive framework of statutes to deal with the various aspects of identity theft Sen. Stand. Comm, Rap. No. 2960, in 2002 Senate Journal, at 1421. these consequences of identity theft are generally the sane so those described by ‘the U.S. Congress when adopting 18 0.5.c. § 1028A (2004), waich imposes a term of imprisonsent of two years to a person committing a certain felony viclation and “knowingly transfers, possesses, or uses, without lawful authority, 3 means of identification of another gezson.” "(Emphasis added.) See supra. 18  “+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTE! “misappropriation of other people's identification information is on the rise.” Hse. Stand. Comm. Rep. No. 446, in 2002 House Journal, at 1409-10; Hse. Conf, Comm. Rep. No. 25, in 2002 House Journal, at 1765 (emphasis added). Based on this specified problem and the Conference Committee’s report, it follows that HRS § 708-839.7 relates to @ person from transmitting an actual person's personal information, but not the information associated with a fictitious person. a ing mation” Though the legislature clearly intended that HRS § 708- 839.7 relate to the transmission of another actual person's information, this construction renders a portion of the HRS § 708-800 definition of “personal information” superfluous. See HRS § 708-800 (defining “personal information” as “information associated with an actual person or a fictitious person. . . to confirm the identity of an actual or a fictitious person). ‘This definition is particularly relevant in constructing HRS § 708- 839.7 because it was created in the same legislation as HRS § 708-839.7."* 2002 Haw. Sess. L, Act 224, § 1 at 894-96, In Light of the “personal information” definition and the expressed legislative intent of Act 224, it is not entirely clear whether the identity theft statute is meant to prohibit the transmission of the information of a fictitious person. ¢. The Rule of Lenity When a statute is ambiguous, and the legislative In addition, we note that the “personal information” phrase rs only three times in HRS Chapter 108, specifically in the identity 29  FOR PUBLICATION IN WEST'S HAWAll REPORTS AND PACIFIC REPORTER * history does not provide sufficient guidance, we follow the rule of lenity. Aiwohi, 109 Hawai'i at 126, 123 P.3d at 1213 (“In the absence of clear statutory language, and with no legislative guidance vis- is the rule of lenity.” (citing State v. Shimabukuro, 100 Hawai'i 324, 327, 60 P.3d 274, 277 (2002) (stating that “[w)here vis legislative history, the applicable doctrine a criminal statute is ambiguous, it is to be interpreted according to the rule of lenity”))); State v. Kaakimaka, 84 Hawai'i 280, 292, 933 P.2d 617, 629 (1997) (stating that “{almbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity”) (citations omitted). This “means that the court will not interpret a state criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what the legislature intended.” State v. Sakamoto, 101 Hawai'i 409, 413 n.3, 70 F.3d 635, 639 n.3 (2003) (quoting State v. Soto, e4 Hawai's 229, 248-49, 933 P.2d 66, 85-86 (1997)). Accordingly, “{ulnder the rule of lenity, the statute must be strictly construed against the government and in favor of the accused.” State v. Kalani, 108 Hawai'i 279, 268, 118 P.34 1222, 1231 (2005) (quoting Shimabukure, 100 Hawai'i at 327, 60 P.3d at 277) (internal quotation marks omitted)); see also Bayly, 118 Hawai'i at 15, 185 P.3d at 200 (ruling that, under the rule of lenity, it is "more appropriate to adopt a less expansive meaning of the tem “collision") Because HRS § 708-8397 1s ambiguous and the Legislative history does not provide sufficient guidance, we must apply the rule of lenity and adopt a less expansive meaning of 20  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER the phrase “personal information of another.” We hold that the HRS § 708-839.7 phrase “transmission of any personal information of another” prohibits the transmission of personal information of an actual person, but not the transmission of information associated with a fictitious person, Because Woodfall did not transmit the personal information of an actual person, he did not satisfy the conduct element of HRS § 708-839.7 and cannot be convicted of identity theft in the second degree. Therefore, the circuit court erred when it denied Woodfall’s “Motion to Dismiss {Identity Theft In The Second Degree].” IV. concnusroN Accordingly, we (1) vacate the ICA’s November 18, 2008 judgment, the circuit court’s October 10, 2007 final judgment, and the circuit court’s February 23, 2007 order denying Woodfall's motion to dismiss, and (2) remand this case to the circuit court for further proceedings consistent with this opinion. on the briets Cpe Jon N. Tkenaga, Deputy Public Defender, for petitioner-appellant esi Gaetan Delanie D. Prescott-rate, Deputy Prosecuting Attorney, PONS for respondent-appellee Yoren£, Duty + BE 21 

c104917f10b2ff4e5e840df64e63a48297f73b3958d7ff2d73cdf75038a7aa23

2009-04-29T00:00:00Z

d507f507-a0b4-4090-b65a-70065ced6ef4

Lamoya v. A.L. Kilgo Company, Inc.

hawaii

Hawaii Supreme Court

No, 28042 SS Nye cone IN THE SUPREME COURT OF THE STATE OF HAWAT'T. os RENEE K. LAMOYA, Claimant-Respondent, vs A.L. KILGO COMPANY, INC., and EAGLE INSURANCE COMPANIES, Employer/Insurance Carrier-Petitioners. INC., CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE No. AB 2003-517 (2-59-08679)) ‘ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court) Employer/Insurance Carrier-Petitioners’ application for writ of certiorari filed on December 19, 2008, is hereby rejected. DATED: Honolulu, Hawai'i, January 26, 2009. FOR THE COURT: ae ONT ie aey Associate Justice Sidney J.Y. Wong and Colette #. Gomoto of Wong & Oshima for employer/insurance carrier- petitioners on the application Moon, C.J., Nakayama, Accba, and Duffy, 23., and ‘considered by Circuit Judge Crandall, assigned by resson 2f vacancy, an 

5864bc2e92a234cec2e5f20394848ff74f7e05e9c851821b52b13d867254867c

2009-01-26T00:00:00Z

c0a3d4c3-cb46-46dd-92ac-63e57b342da6

Rapozo v. Frank

hawaii

Hawaii Supreme Court

Law UBRARY wo. 2918 4 as 1 we surnene couse or tue stare or unr] —_ SEE COO OF THE STMT OP NL OS ECHARD R. RAPOLO, Petitioner, SE bE ve “3 2 6 CLAYTON FRANK, DIRECTOR OF THE DEPARTMENT OB| PUBLIC SAFETY, STATE OF HAWAI'I, Respondent ORIGINAL PROCEEDING ORDER (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Intermediate Court of Appeals Judge Lecnard, ‘assigned by reason of vacancy) Upon consideration of the petition for a writ of habeas corpus filed by petitioner Richard 8, Rapozo, 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, 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 without prejudice to seeking habeas corpus relief in the circuit court pursuant to HRS § 660-3 (2993). DATED: Honolulu, Hawai'i, april 9, 2009. cease, Lo Nee ony 6 Rabin tye 

c99ff4bc63f06a5626e15886b0bfc35f6afecce65fa399401bce5779620a2891

2009-04-09T00:00:00Z

3d0f16e6-8949-4a42-bd6f-634e167b2711

State v. Laride

hawaii

Hawaii Supreme Court

NO. 27823 IN THE SUPREME COURT OF THE STATE OF HAWAI'I STATE OF HAWAI'I, Respondent /Plaintiff-Appellee, GWENNETTE NALANI LARIDE, Petitioner/Defendant-Appellant. CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (CR. NO, 04-1-2409) “TING _APPI FOR WRIT {PTORART (By: Moon, C.J., for the court”) Petitioner/defendant-appellant Gwennette Nalani taride’s application for writ of certiorari, filed ganuary 20, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, February 24, 2009. Shawn A. Luiz, for FOR ‘THE COURT: petitioner/defendant- appellant, on the application fot sustic ead Considered by: Moon, C.J. Nakayama, Acoba, and Duf! cireutt Judge Marks, assigned by reason of vacancy, 

2a8f3cdd7a54ef150635b96412dce221bae7e5e8ea239fdce70867fd6253ed12

2009-02-24T00:00:00Z

a4a663c2-a076-4fe1-920d-f98f518f3b64

Beam v. Luke

29805

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 29805 IN THE SUPREME COURT OF THE STATE OF HAWAI'I va. le = SHE HONORABLE LINDA K.C. LUKE, JUDGE OF THE FAMPLYSCOURR | = OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Resp: te m S caietis reocexonic 3 2 CRESIRL ROCESS & ORDER Moon, C.J., Nakayama, Accba, Duffy, and Recktenwald, JJ.) upon consideration of the petition for a writ of mandamus filed by petitioner Catina Stefanik and the papers in support, it appears that the motion to dismiss the custody proceeding is not scheduled for hearing after the custody trial inasmuch as the motion to dismiss is scheduled for hearing on galy 15, 2009, Wednesday, at scheduled for trial during the week of -- not on -- July 13, 2009. There is no evidence that the motion to dismiss will not 0 a.m, and the custody matter is be heard before commencement of the custody trial and the denial of the motion to shorten the time to hear the motion to dismiss is reviewable on appeal from a final order on the custody proceeding. Thus, petitioner is not entitled to mandamus relief. See Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999) (A weit of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lower courts, nor are they intended to serve as legal renedies in lieu of noxmal appellate procedures.). Accordingly, IT TS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai’: + May 15, 2009, Pet &. Me bitin vente 

d03bcb75dcfdd902296db11e08b19983fda09f027cc91339177baedfaf33250f

2009-05-15T00:00:00Z

c540c1c8-f00c-4670-88fe-444c5512965a

Bank of Hawaii v. Shinn

120 Haw. 50

hawaii

Hawaii Supreme Court

no, 27832 TN THE SUPREME COURT OF THE STATE OF HAWAI'I BANK OF HAWAII, Respondent /Plaintiff-Appellee Oats MICHAEL L. SHINN, Pet itioner/Defendant-Appellant 912 Hd Li essay and KANACHTKA & LEZAK, Defendant~Appel BAYS, DEAVER, HIATT, @ Hawai'i partnership, and DONALD T EOVINO; KAHALA VENTURES, general partnership; FIRST HAWAIIAN BANK; DONALD #. WILSON, as Trustee of the Jerry 7. Lynn Charitable Remainder Trust; BéT ENTERPRISES, a California RICHARD WALLACE and PATRICIA DAVISON a Hawad't corporation; WALLACE, as Trustees of the Muldoon & Associates Money Purchase Plan and Trust; UNIVERSAL SECURITIES O., LTD., a Japan corporation; LOREN H. COOK; DARCY H. COOK; J. ROGER ALLEN; CATHREINE G. ALLEN; JOHN DOES 1-50; 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 (civ. NO. 93-1151) ‘Moon, C.J., Acoba, and Duffy, JJ. and Retired Justice Levinson, appointed by reason ef vacancy on January 9, 2003, dissenting, with whon Nakayama, J., joins) Upon consideration of the motion for reconsideration filed on January 8, 2009 by Petitioner/Defendant-Appellant Michael L. Shinn, requesting that this court review its opinion filed on December 29, 2008, the opposition filed by Respondent /Plaintiff-appellee Bank of Hawai'i on January 26, 2009, and the record herein, IT 18 HEREBY ORDERED that the motion for reconsideration denied. DATED: Honolulu, Hawai'i, February 17, 2009. Gary Victor Dubin, Long #. Vu, and Frederick J. Arensmeyer (Dubin Law Offices) , on the motion A eel for petitioner/defendant- appellant. Yous Duchy Mark T. Shklov, Michel A. Okazaki, and Peter Van Name Esser, on the opposition for respondent /plaintift— appellee. Having filed a concurring and dissenting opinion, T respectfully dissent and would grant the motion for reconsideration. Prada Coa ey nee Slat hLacrnae— 

225c8b06aeff8970d0d132f65ced6cf53b8f6c572755088e198571bd4913f49d

2009-02-17T00:00:00Z

fd97b71e-c3ac-4f2d-8935-2b5504b89457

Office of Disciplinary Counsel v. Kloos

29155

hawaii

Hawaii Supreme Court

LAW LIBRARY No, 29155 IN THE SUPREME COURT OF THE STATE OF HAWAT'T OFFICE OF DISCIPLINARY COUNSEL, Petitioner, HY 6- vw saag BILL KLOOS, Respondent. ss > ORIGINAL PROCEEDING Jog (o0e 08-024-8667) ats (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., ‘and Intermediate Court of Appeals Judge Foley, assigned by reason of vacancy) Upon consideration of the Office of Disciplinary Counsel's ex parte petition for issuance of reciprocal discipline notice to Respondent Bill Kloos, pursuant to Rule 2.15(b) of the Rules of the Supreme Court of the State of Hawai'i (RSCH), the memorandum, affidavit, and exhibits thereto, the Declaration of Charles H. Hite Regarding the May 30, 2008 Notice and Order, the exhibits thereto, and the record, it appears that: (1) on January 28, 2008, the Supree Court of Oregon publicly reprimanded Respondent Kloos for his ethical misconduct in case No. 07-99; (2) RSCH 2.15(b) requires the same or substantially equivalent discipline, or restrictions or conditions upon the attorney's license to practice law in the state of Hawai'i, unless Respondent Kloos shall show cause under RSCH 2.15(c) as to why imposition of the sane or substantially equivalent discipline (2) Respondent Kloos has not filed a should not be impose response to our May 30, 2008 notice and order; (4) a substantially equivalent discipline is warranted in this jurisdiction: and (5) a substantially equivalent discipline in this jurisdiction is public censure by the supreme court. Therefore, IT 18 HEREBY ORDERED that Respondent Bill Kloos is publicly censured. IT IS FURTHER ORDERED that Respondent Kloos shall pay all costs of this proceeding. DATED: Honolulu, Hawai'i, March 9, 2009. Gorm Bia OM Met Caen pay Yon € Ducla Sole Le 

777dd41236f8b8c83c14c28f5a47a8da19933c166a0b21eb919e04420186ba66

2009-03-09T00:00:00Z

dde831f8-455c-41db-90ab-4ca647ab5116

In the Matter of Arbitration Between United Public Workers, AFSCME, Local 646, AFL-CIO and City and County of Honolulu

hawaii

Hawaii Supreme Court

Man usHAnY wo. 28120 IN THE SUPREME COURT OF THE STATE OF HAWAI'T on Between In the Matter of the Arbitrat UNITED PUBLIC WORKERS, APSCME, LOCAL 646, AFL-CIO, Petitioner-Appellant, and CITY AND COUNTY OF HONOLULU, ENVIRONMENTAL SERVICES (GRIEV. OF DENNIS MOTONAGA RE: 20 DAY SUSPENSION); SEC 1, 11, 14, 637 UNIT 1; LK-05-09; (2008-140), Respondent-Appellee. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (3. B, NO. 06-1-0016) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court?) Petitioner-Appellant’s application for writ of certiorari filed on February 13, 2003, is hereby rejected. Honolulu, Hawai'i, March 25, 2009, FOR THE COURT: aN Peace OM remerrave|* SEAL i) & Associate Justice oe ws! DATED: Herbert R. Takahashi and Rebecca L. Covert of Takahashi Vasconcelos & Covert for petitioner-appellant on the application Sung ne Wy ‘Wawa L Wii oats SN Hd Sz uv su Moon, C.J.) Nakayama, Acoba, and Duffy, JJ., and ‘considered by Circust Judge Nakanura, assigned by reason of vacancy, 

67d74704d7f07278efee861bc5bf9c2cfefa469ba18ab5aff70e0144ea8c43ba

2009-03-25T00:00:00Z

c3a9d3ab-a70f-44cc-9478-a844ee6d7bc7

State v. McMillen

hawaii

Hawaii Supreme Court

CAWUBRARY No, 28768 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Respondent~Appellee, YVONNE M. McMILLEN, Petitioner-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO, 06-1-1685) ee ee re court and Accba, J., dissenting, with whom Moon, C.J., joins) upon further consideration of the records and files in this case, it appearing that the writ of certiorari herein was improvidently accepted, IT IS HEREBY ORDERED that this certiorari proceeding is dismissed. Honolulu, Hawai, March 12, 2009. FOR THE COUR’ DATE! Denese bs Associate Justice 70,0 am, 3 2 aan az Eo 62: considered by: Moony C.J.» Nakayama, Acoba, and Dufty, circuit Guage Aim, assigned by reason of vacancy 

8ef0f0ca165196d812301586ed0353049f0b72f4372932e040dc09daf76f755b

2009-03-12T00:00:00Z

ce5deff4-b1db-44d6-b372-100b8b185d4b

State v. Pia

hawaii

Hawaii Supreme Court

no. 29666 IN THE SUPREME COURT OF THE STATE OF HAWAT'T STATE OF HAWAI'I, Respondent~Appellee, RYRON L. PIA, Petitioner-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 05-1-0243) cr} 08 (By: Nakayama, J., for the court") Petitioner-Appellant’s application for writ of certiorari filed on March 2, 2003, is hereby rejected. DATED: Honolulu, Hawai‘i, April 3, 2009. FOR THE COURT: (FEQ. ‘ \ nie Oe ane |” SEAL) Associate Justice Mary Ann Barnard for ne petitioner-appellant on the application iconsidered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and carcuit Juuge Lee, assigned by reason of vacancy 

6bbc6d07db47a99494c49bbfbddf12c6b5a65db0039be94901d26185c1980593

2009-04-03T00:00:00Z

294a4b50-99b6-4497-901b-7e73418c7e19

Suzuki v. Thom

hawaii

Hawaii Supreme Court

LAW LISRARY no, 29716 IN THE SUPREME COURT OF THE STATE OF HAWAT'T., LOLA SUZUKI, Petitioner, a 6 ROLAND O.F. THot, CHATRIAN, tASOR AND THOUSTED Sa ee at TUNE TREE Ur, pau TRAVELEAS, Reapondeneas | 2 Hid 6 oats ORIGINAL PROCEEDING (CASE NO. AB 2007-497 (2-06-14727)) (CASE NO. AB 2007-498 (2-07-04617)) ORDER (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Valenciano, assigned by reason of vacancy) Upon consideration of the petition for a writ of mandamus filed by petitioner Lola Suzuki and the papers in support, Lt appears that petitioner fails to demonstrate that the xespondent chairman of the Labor and Industrial Relations Appeals Board (LIRAB) had a duty to rule in favor of petitioner on the matters of treatment, discovery, appeal issues, summary judgment, and sanctions, Respondent’s rulings will be reviewable on appeal to the intermediate court of appeals from the LIRAB’s final decision in AB 2007-497 and AB 2007-498. See HRS § 386-88 (Supp. 2008). 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 office: d+ 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.}; Salling v. Moon, 76 Hawai'i 273, 274 n. 3, 874 P.2a 1098, 1099 n.3 (1994) (“A duty is 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, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied IT IS FURTHER ORDERED that the motion for leave to anend the petition is denied. DATED: Honolulu, Hawai'i, april 9, 2009. Gren Reet Onesie em BN enon €: Katie tr + ParbeQ YSeveiong 

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2009-04-09T00:00:00Z

e68d31bb-5123-4501-a324-d64e06a48ee7

State v. Miller

hawaii

Hawaii Supreme Court

No. 28849 Y Hs 6- a3ysuqg ass IN THE SUPREME COURT OF THE STATE OF HAWAT'E STATE OF HAWAI'I, Respondent /Plaintiff-Appellee DOUGLAS MILLER, Petitioner/Defendant-Appellant CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (EC-CR NO. 07-1-0303) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Acoba, J., for the court; and Nakayama, J., dissenting, with whom Hirai, J., joins*) Petitioner/Defendant-Appellant Douglas Miller's 9g application for writ of certiorari, filed on December 24, 2008, is accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawai‘, February 9, 2009. FOR THE COURT: Simeon R. ACOBA, Associate Justice Hayden Aluli, on the application, for petitioner/ defendant-appellant. Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Considered by: Circuit Judge Hirai, assigned by reason of vacancy. 

718fdfb6b3f9b4260656f985ec0c9e96b3d450bfcc47edfa563636e10069ffa4

2009-02-09T00:00:00Z

cbd109b0-dd59-4d01-8b8b-f49282e862a3

Marn v. Marks

29693

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 29693 IN THE SUPREME COURT OF THE STATE OF HAWAI'I ALEXANDER Y. NARN, Petitioner, 3 “ fe E THE HONORABLE VICTORIA S. MARKS, suDGE OF THE Gu@IT COURT OF THE FIRST CIRCUIT, STATE OF HAWA! ss = oC unvegt. NAR, JR.) JANES Hat. DUM, Succesese TELBtee op Oe the’ annabenie 4. buon Brust, Dated June 16, gel ind Thiouns E. HAYES, Receiver, Respondents Oh ORIGINAL PROCEEDING (CIVIL Nos, 98-4706, 98-5371, 07-1-0565) ORDER (By: Moon, C.J., Nakayama, Acoba, and Duffy, 3J., and Circuit Judge Hara, assigned by reason of vacancy) Upon consideration of the petition for a writ of mandamus and prohibition filed on March 11, 2009 by petitioner Alexander Y. Marn and the papers in support, it appears that petitioner's claim that the respondent judge improperly authorized the interim payments of taxes, attorney's fees, and expenses is not clear and indisputable. The April 3, 2008, June 5, 2008, September 16, 2008, and December 22, 2008 orders are reviewable on appeal from final judgments entered in Civil Nos. 98-4706, 98-5371, and 07-1-0565. Thus, petitioner is not entitled to a writ of mandamus and prohibition. See Kena v. Gaddis, 91 Hawai'i 200, 204-05, 982 P.2d 334, 338-39 (1999) (A writ of mandamus and/or prohibition is an extraordinary renedy that will not issue unless the petitioner demon ates a clear and indisputable nt to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action.) . It further appears that the March 11, 2009 petition cannot be treated as an application for a writ of certiorari to review the intermediate court of appea! dismissal orders filed in Nos, 29421 and 29448 inasmuch as the p the requirements of HRS § (Supp. 2008) and HRAP 40. ‘Therefore, IT IS HEREBY ORDERED that the petition for a writ of mandamus and prohibition is denied. IT IS FURTHER ORDERED that the motion for expedited review is denied. DATED: Honolulu, Hawai'S, March 25, 2009. Tf Seales Crecente NS Bune trae 

c3e0873d868a0c8c78b20f4b97bd38d99b35de6e34b25d3178fbb1c494cd867c

2009-03-25T00:00:00Z

c1b05d6a-0067-4ebb-8fbd-4f403de403d1

Alvarez Family Trust v. Association of Apartment Owners of the Kaanapali Alii

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 27695 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T ALVAREZ FAMILY TRUST; SERGIO S. ALVAREZ AND MARGARET J. ALVAREZ, Petitioners/Plaintiffs-Appellants ASSOCIATION OF APARTMENT OWNERS OF THE KAANAPALI ALIT, Respondent /Defendant Appellee 98:5 WY LI evo qa and JOHN DOES 1-100; JANE DOES 1-100; DOE PARTNERSHIPS 1-100; DOE CORPORATIONS 1-100; AND DOE ENTITIES 1-100, Defendants CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (civ. NO. 05-1-0013) ‘Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on February 27, 2009 by Petitioners/Plaintiffs-Appellants Alvarez Family Trust; Sergio S. Alvarez and Margaret J. Alvarez is C.J. Nakayama, Acobs, and Duffy, Jd., and 5 considered by: Moon, Circuit Judge Nishimura, assigned by reason of vacancy accepted and will be scheduled for oral argument. The parties will be notified by the appellate clerk regarding scheduling. DATED: Honolulu, Hawai'i, March 17, 2009. FOR THE COURT: e ‘Terrance M. Revere and Rebecca A. Szucs (Motooka Yamamoto & Revere), on the application for petitioners/plaintifts- appellants. Matt A, Tsukazaki, (Li & Teukazaki), on the response for respondent /defendant- appellee. 

2c2887ac9a905c4f40cbb277070474ae5beb53103eba852bb32079adc1aa9d61

2009-03-17T00:00:00Z

d3a00d35-d81e-4aa1-821f-d2e5c52eb6bb

Rinking v. County of Hawaii, Hawaii Police Department

hawaii

Hawaii Supreme Court

No. 28752 1 THE SUPREME COURT OF THE STATE OF HAWAr'I ~ ee eee DEAN A. REINKING, Respondent-Clainant-Appeliant, © COUNTY OF HAWAI'I, HAWAI'I COUNTY POLICE DEPARTMENT, Petitioner-Employer-Appellee, Self-Insured, and STATE OF HAWAI'I, DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT, STATE WORKERS’ COMPENSATION DIVISION, Petitioner-Third-Party Administrator-Appellee. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO. AB 2006-174 (H) (1-85-0132) } (By: Duffy, J., for the court") Petitioner-fmployer-Appellee, Self-Insured County of Hawai'i, Hawai'i County Police Department and Petitioner-Third~ Party Administrator-Appellee State of Hawai'i, Department of Human Resources Development, State Workers’ Compensation Division's application for a writ of certiorari, filed on December 23, 2008, is hereby rejected. DATED: Honolulu, Hawai'i, January 30, 2009. Joseph XK. Kanelanela and FoR THE COURT: isense1 3. Gaouie, Deputies Corporation Counsel, for Petitioner Employer-Appellee, Cane folly Self-inoured," Couney ef Hawet't, Associate Justice Hawai'i County Police Department and Petitioner-Third-Party Acministrator-Appellee State of Hawai'l, Department of Human Resources Development, State Workers’ Compensation Division on the application considered by circuit Juage Moon, C.J.» Nakayama, Acobe, Duffy, JJ., and gned by reason of vacancy. 

49985864b648c54fadb131d3b9b850ffb1b2481d9ef0c8753b5699dc61381ff6

2009-01-30T00:00:00Z

2e197d99-a37d-442e-ad72-3f3222e394e7

In re Fisher

hawaii

Hawaii Supreme Court

No. 29520 ORIGINAL PROCEEDING ORDER ACCEPTING AFFIDAVIT IN L1EU OF ORIGINAL CERTIFICATE EVIDENCING LICENSE 20 PRACTICE LAW IN THIS STATE Moon, C.J., Nakayama, Acoba, and Duffy, JJ-y and Intermediate Court of Appeals Associate Judge Fujise, ‘assigned by reason of vacancy) Upon consideration of Petitioner Sheree Michelle Fisher's Affidavit Re Order Granting Petition to Resign and Surrender License, it appears that (1) on December 22, 2008, this court granted Petitioner Fisher's RSCH 1.10 petition to resign and surrender Licenses (2) the December 22, 2008 order provided, in part, that "Petitioner Fisher shall return her original License to practice law to the Clerk of this court forthwith and) [t]he Clerk shall retain the original license as part of this record;" and (3) Petitioner Fisher avers that, after a thorough and diligent search, she cannot find her original license to practice in the State of Hawai'i, and believes it has been destroyed. Therefore, IT IS HEREBY ORDERED that the supreme court's Decenber 22, 2008 order in this case is modified to the extent that Petitioner Fisher’s affidavit shall be deemed to satisfy the requirement that she submit to the Clerk the original certificate ww. If Petitioner Fisher evidencing her license to practice ary  finds the original certificate evidencing her license to prac law in this State, she shall inmediately deposit the same w: the Clerk of this court, and the Clerk shall thereupon retain the license as part of this record. DATED: Honolulu, Hawai'i, January 30, 2009. Dro Bea O Reacteey ane IIo Yore, betyudh, 

66493d9e53277905ecada6282efb7bc31ffe3355650a8d8e3f4a094fc7375faa

2009-01-30T00:00:00Z

ae1e3a46-8850-4cbd-9da6-8a0187415704

State v. Kalua

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 28403 IN THE SUPREME COURT OF THE STATE OF HAWAI'I Bee, 3 gs Respondent /Plaintiff-apy STATE OF HAKAZE, “ of 8 FRANK A. KAUUA, Petitioner/Defendant-Apppiane. 323 = PEALSSS CERTIORARI TO THE INTERMEDIATE COURT OF (CR. NO, 06-1-0101(3)) PL EC for the court) (By: Noon, C.J. Petitioner/Defendant-Appellant Frank A, Kalua’s application for writ of certiorari, filed February 11, 2009, is hereby rejected. DATED: Honélulu, 2009. i, March 24, FOR THE COURT Hawa: Y considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Circuit Judge Abn, assigned by reason of vacancy. 

9ffb859ed85c6f396803c4901703521b504a5323bb59b678ce3f1f5117fd4995

2009-03-24T00:00:00Z

5f9d7e38-26fd-4130-bff8-c97a11769b07

State v. Taylor

hawaii

Hawaii Supreme Court

No. 28168 IN THE SUPREME COURT OF THE STATE OF HAWAI'I No. 20168 STATE OF HAWAI'I, Respondent /Plaintift-1 Appelieds vs. Petit ioner/Defendant-Appel lant JEFFREY TAYLOR, (CR. NO. 06-1-0054(4)) Visld 2— ayy gy no. 28169 STATE OF HAWAI'I, Respondent /Plaintiff-Appellee, JENNIFER TAYLOR, Petitioner/Defendant-Appellant. (CR. NO. 06-1-0085(4)) CERTIORARI TO THE INTESMEDIATE COURT OF APPEALS (CR. NOS. 06-1-0054(4) & 06-21-0055 (4) } CERT (By: Duffy, J., for the court") Petitioners/Defendants-Appellants Jeffrey Taylor and Jennifer Taylor’s application for writ of certiorari, filed on February 12, 2009, is hereby dismissed as untimely. March 2, 2009. DATED: Honolulu, Hawa:'t, < Meyer Ml. veoka FoR THE couRT: ee Sy for pevitioners/ defendants appellants Yoron €. Bogs + » SEAL Associate Justice ecuat” on the application Moon, c.J., Nakayama, Acoba, Duffy, JJ., and 5 considered by: cireuis Juage Kim, agsigned by reason of vacancy. 

a98be098bab98a67165b98a2c730b98dc9c4a0e6396c7716728a088c64481792

2009-03-02T00:00:00Z

bbba5fa6-4195-40ca-9ef5-0ee830328b31

Dural v. State

28533

hawaii

Hawaii Supreme Court

no. 28533 IN THE SUPREME COURT OF THE STATE OF HAWAT‘T ROYNES JOSESH “ERIC” DURAL IT, Petitioner/Pet itioner-Appellant STATE OF HAWAI'I, Respondent /Respondent-Appellee aats CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (SPP NO. 06-1-0037; CR. NO. 02-1-2791) CERTIORART WITHOUT PREJUDICE (By: Acoba, J., for the court') The Application for Writ of certiorari filed on Decenber 12, 2008 by Petitioner/Petitioner-Appellant Roynes Joseph “Eric” Dural 11 is hereby rejected, without prejudice to fling another Rule 40 petition in the circuit court based on alleged website statenents of shyla Combis and the declarations of Chad Kalavaia and Viblana Slutter, referred to in the Application. DATED: Honolulu, Hawat"L, January 27, 2009. FoR THE coURt aa ve S, fesociate Justice Virginia E. Hench (The Hawai'i Innocence Project), on the application for petitioner/petitioner- appellant. Considered by: Moon, C.J-, Nakayama, Acoba, and Duffy, J. and Cizcust Judge Bifoy assigned by reeson of vacancy 

b31a05241181e9c72071d3b00c2e5ad04ee5b36044424a94a22e7a2887678cf2

2009-01-27T00:00:00Z

cfd5c65e-5d6b-4e33-ae4d-d1483334221c

Costa Rica VI v. County of Kauai

29577

hawaii

Hawaii Supreme Court

No, 29577 IN THE SUPREME COURT OF THE STATE OF HAWAT'T JOAQUIN AYRES COSTA RICA VI, Petitioner, COUNTY OF KAUAI, Respondent. 3 ORIGINAL PROCEEDING ‘ORDER (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. ana Intermediate Court of Appeals Judge Foley, ‘assigned by reason of vacancy) upon review of Joaquin Ayres Costa Rica’s papers dated January 9, 2009, which purport to be a petition for writ of mandamus, it appears that the petition seeks supreme court review of Civil No. 03-1-0084. We lack jurisdiction to review Civil No. 03-1-0084. See HRS § 602-5 (Supp. 2007). Therefore, 17 IS HEREBY ORDERED that the clerk of the appellate court shall process the January 9, 2009 papers as a petition for writ of mandamus without payment of the filing fee. IT 1S FURTHER ORDERED that the petition for writ of mandamus is dismissed. DATE: Honolulu, Hawai'i, January 23, 2009. Gorin cue tes Cut beeen) nes poe 7] oy _ F f 

84810ab0f5c52f30e45029d5fb2e3f0e0b4141c2bda2e937c93b652ac8414ac4

2009-01-23T00:00:00Z

a7cc36fe-a74e-4303-b686-e707006e6fc3

Association of Apartment Owners of the Cliffs at Princeville v. Premier Resorts International

hawaii

Hawaii Supreme Court

Uw BRA No, 27558 IN THE SUPREME COURT OF THE STATE OF HAWAr'r ASSOCIATION OF APARTMENT OWNERS OF THE CLIFFS AT PRINCEVILLE, ‘Applicant-Appellee, PREMIER RESORTS INTERNATIONAL, INC., dba VILLAGE RESORTS, Respondent-Appel lant. “ APPEAL FROM THE FIFTH CIRCUIT COURT 4 (S-P, NO, 4-1-0003) lend aaws (By: Nakayama, J., for the Court® ‘and Acoba, J., dissenting) “yaiva'L VHBN 62: Rd ONT Upon consideration of Respondent /Appellant Premier Resorts International, Inc., dba Village Resorts’ motion for reconsideration of the Decenber 30, 2008 order partially granting and partially denying Applicant /Appellee Association of Association of Apartment Owners of the Cliffs at Princeville’s request for fees and costs, and the record herein, IP IS HEREBY ORDERED that the motion is denied. DATED: Honolulu, Hawai'i, January 20, 2009. FOR THE COURT: Paria Oru desyen) i) Associate Justice | , DISSENT BY ACOBA, J. I respectfully disagree and would grant the motion for reconsideration. ooo ‘considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Retired Justice Levinson, appointed by reason of vacancy, on January 15, 2009. 

3162069e65225e744c3f6c6e5fb7b97a37e0118b6dba7c4957a6bedafa0087f4

2009-01-20T00:00:00Z

c2bb18e5-6566-4078-b5a9-e73df6b504fa

State v. Hinton. ICA s.d.o., filed 08/26/2008 [pdf], 118 Haw. 419. Dissenting Opinion by J. Foley [pdf]. Application for Writ of Certiorari, filed 12/17/2008. S.Ct. Order Accepting Application for Writ of Certiorari, filed 01/29/2009 [pdf].

120 Haw. 265

hawaii

Hawaii Supreme Court

*** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter IN THE SUPREME COURT OF THE STATE OF HAWAI'T 00 --~ STATE OF HAWAI'T, Respondent /Plaintift-Appellant, MARSHALL HINTON, Petitioner /Defendant-Appellee. No. 27719 CERTIORARI 10 THE INTERMEDIATE COURT OF AP! (CR. NO. 04-1-2546) MARCH 19, 2009 90:1 Hd 61 UN GUIE MOON, C.J., NAKAYAMA, ACOBA, AND DUFFY, JJ., AND CIRCUIT JUDGE BLONDIN, ASSIGNED BY REASON OF VACANCY OPINION OF THE COURT BY MOON, C.J. . On January 29, 2009, this court accepted a timely application for a writ of certiorari, filed on December 17, 2008 by petitioner/defendant-appellee Warshall Hinton, seeking review of the Intermediate Court of Appeals’ (ICA) September 18, 2008 judgment on appeal, entered pursuant to its August 26, 2008 sunmary disposition order (SD0). Therein, the ICA vacated the Circuit Court of the First Circuit’s' December 21, 2005 findings ‘The Honorable Richard K. Perkins presided over the underlying proceedings ast  *** FORPUBLICATION * in West's Hawai'i Reports and the Pacific Reporter of fact (FOFs), conclusions of law (COls), and order granting Hinton’s motion to dismiss the indictment with prejudice. oral argument was held on February 19, 2009, Briefly stated, Hinton was indicted for allegedly touching the then-thirteen-year-old complainant [hereinafter, the complainant) on her genital area outside her clothing and was subsequently tried by a jury for sexual assault in the third degree, in violation of Hawai'i Revised Statutes (HRS) 5 707-732(1) (b) (Supp. 2008).? However, the trial court declared a mistrial after the jury was unable to reach a unanimous verdict and, upon motion by Hinton, dismissed the indictment with prejudice, pursuant to State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982), discussed infra. On appeal by respondent /plaintiff- appellant State of Hawai'i (the prosecution), a majority of the ICA concluded that the trial court abused its discretion in Gismissing the indictment and, accordingly, vacated the trial court's dismii 1. Judge Foley dissented, concluding that the s{erial] court aia not abuse its discretion in dismissing the indictment against Hinton.* Hinton argues on application that ‘the ICA gravely erred in concluding that the trial court abused its discretion in 2 as § 707-732(1) (b) provides: *A person commits the offense of sexual assault in the third degree if... [t]he person knowingly subjects to Sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person[.1” *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter dismissing the case under Moriwake* inasmuch as the ICA ‘improperly incorporated [a] novel ‘separation of powers’ consideration" into its analysis that “conflict[s] with Moriwake and its progeny.” Based on the discussion below, we hold that the ICA erred in (1) injecting an additional “separation of powers’ analysis into the Moriwake framework and (2) holding that the trial court abused its discretion in dismissing the indictment with prejudice. Accordingly, we reverse the Ica’s judgment on appeal and affirm the trial court’s December 21, 2005 FOFs, COLs, and order granting Hinton’s motion to dismiss the indictment with prejudice. 1. BACKGROUND A. Relationship Between Hinton and the Complainant Hinton and the complainant’s grandmother, Karen Dupont, were involved in a ronantic relationship for approximately twenty-seven years and, during that time, had two children together, Hinton and Dupont’s relationship began when the complainant's mother, Jeminis Dupont (Jeminis), was two-years- old, and, although Hinton was not her biological father, Jeminis referred to him as “Dad.* Likewise, the complainant referred to Hinton as *Papa.* At the time of the alleged assault, Hinton and Dupont were no longer in a romantic relationship; however, they apparently remained friends. Hinton often spent time at Dupont‘s residence, visiting his biological children and working on cars *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter that he kept there. Dupont estimated that Hinton spent "a couple hours" two or three days a week at her house. B. Indictment and Trial On December 23, 2004, Hinton was indicted with one count of sexual assault in the third degree, in violation of HRS 5 707 32 (1) (b), for allegedly placing his hand on the complainant's genital area outside her clothes. A two-day jury trial was held on September 12 and 13, 2005. The prosecution’s main witness at trial -- the complainant -- testified that, on December 7, 2004, she cane hone from school to Dupont’s house in Salt Lake, where the complainant was residing with her mother, Jeminis, and other family menbers. Upon arriving at the house, the complainant saw Hinton and Dupont outside the hou on direct examination the complainant testified as follows: A {87 the complainant} {inton) told me to cone behind the truck. And then he showed me the porno magazine, (Q (Sy the prosecution) Now, how did you krow 12 was a ine? were naked people on the cover holding this magazine? A Tsincon Q, Mow iong'do you think that he was holding it in front Of you? 2 About five seconds: Okay. “Mow id looking at this magazine sake you feel? A Awhward > At the tine of the alleged assault, the complainant had only been residing at the Dupont house for about six wonthe =~ since July 2004, For the four years prior eo soving to the Dupont house, ‘the complainant had been Living in New Jersey with a fanily mesber because of her mother’s drug use. *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter @ Mow, what did you do to the magazine when (Hinton! tried fo show it ta you? D” T'Teoked away. O mat dia you do after he showed you the magazine? 5 T'went into the ou The complainant further testified that Hinton then followed her into the house and told her to sit down next to him on the couch in the living room. The complainant indicated that she and Hinton were sitting *close* to one another so that they were touching. when asked, ‘what happened after [she] sat down next to [Hinton], the complainant testified that: A (By the complainant} [Hiinton} grabbed my hand. Q [By the prosecution} And what hand =~ which of your hands did he grab? ‘she Jefe. And which one of his hands did he grab your hand wich? the right. ‘Okay. "And how was he holding your hand? Elke eriss-croas: [PROSECUTING ATTORNEY]: Your honor, may the record reflect the witness is shoving intertwined fingers? [PROSECUTING ATTORNEY]: Thank you. by [the prosecution) : ‘ow, where id [itinton] put your hands at first? Gn hi dap. Okay. Aad where exactly on his lap? Like by his knee Did he move your hands? Yes And where did he move your hands? To my nant area. Do you have any other words for your nani? Private part Okay. Want part of hie body couched your nani? Bis band. Bo you know how long his hand was on your nant? Three seconds Did he move hig hand at all while it was on your nani? What direction did he move his hand? ‘Up and down. Mere you wearing clothes at the tine? Okay. And was this under your clothes or over your 4 over *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 2 hat happened after (Hinton] touched your nani? A T'lee go of Ale hand and went into the kitchen, Q How did you feel at this timer Beira @ Dia'=> aid {Hinton} follow you into the kitchen? A Yes 0 Did'he say anything to you at this tine? A He wanted me to flash my boobs: Q Okay. How do you know that? A fe'dia hand motion. Q Okay. And could you describe what you mean by hand motion? A He wont up Like chat. TPROSBCUTING ATTORNEY) :\ Your Honor, may the racord reflect that the witness hag shown ewo fice from a lover position to a higher position? By [the prosecution] ‘So what did you think he wanted you to do? Plas Okay. And what @o you mean by flash? Lift up sy shire. Okay. "and did’ you do chat? The complainant testified that Dupont then entered the kitchen area, but that she (the complainant) did not immediately say anything or tell anyone (including her mother or grandnother) about what happened. About a week later, the complainant told her mother’s friend, ‘Aunty Kelly," about the alleged Decenber 7, 2004 assault. ‘The complainant also testified that, on December 19, 2004 while riding in Hinton’s vehicle, Hinton made her watch a DvD of “{pleople having sex.* she later reported the incident to wer family menbers, and the police were called that evening. The police searched Hinton’s vehicle and recovered a DVD player, but no pornographic DvD was found. Although the December 19 incident 4id not give rise to criminal charges, the Decenber 7 alleged Ameident, which was also reported to the police at that tine, led to the instant case *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Dupont also testified for the prosecution. In her testimony, she indicated that, on December 7, 2004, she ‘walked in the house and [Hinton and the complainant] were sitting on the couch talking, and [the complainant] was smiling and laughing.* Dupont indicated that she believed the complainant was smiling “‘cause [Hinton] was explaining to her about getting her a cell phone for her for Christmas, and gifts, Christmas gifts.* Dupont also indicated that, after the alleged December 7 incident was reported to the police on December 19, 2004, she and Hinton asked Jeminis and the complainant to move out of the Dupont house. However, on cross-exanination, Dupont stated that, prior to the alleged incident being reported to the police, she and Hinton spoke with Jeminis and the complainant about leaving the hone. Dupont indicated that both geminis and the complainant were very upset that Dupont was kicking them out.‘ Aunty Kelly and Jeminis, among others, also testified for the prosecution, essentially confirming the complainant's testimony that she told Aunty Kelly about the alleged Decesber 7, 2004 as xanination, Jeminis ult, Additionally, on eros: admitted to methamphetamine use at or around the time of the alleged incident. At the close of the prosecution’s case-in- «ze was Hinton’s theory at trial that the complainant sade the allegations ‘of abuse because she was angry about Hinton and Dupont telling her and her mother to move out. *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter chief, Hinton moved for a judgment of acquittal, which was denied by the trial court Hinton -- the only witness called by the defense -- testified on his om behalf and denied that he touched the complainant on her genital area on December 7, 2004 or that he asked her to flash him on that same day, Hinton testified as follows regarding the events that allegedly occurred on December 7: Well, 1 wes working on a car at the time. And [the complainant) cane up and she sald, Mi, papa. And then her geandrother, (Dupont), went down to ack her why was she late Coming hone’ from school: Aa far aa her explanation T don’ Feally know. continved to work on the car. and afi while i wad nor outside, so Twent in the house ou Bathroom, 1 don’t know whether [the complainant] was on the Couch or in the kitchen, Sut my daughter wae in he Feom. "SoZ went to use’ the bethroom. And when'T came back Sat, (the complainant] was asking me about a cell phone that we were supposed co get her for Christmas|] About that time, we was in the middie of a conversation and sy cell phone ring, and was [linten’s Gieliviend], ‘The birds was chirping and 2 could barely heer What ahe wae saying, f ves ike, hello. And so 1 went headed towards the door ‘Aad [the complainant] puiting me back because she ation about the telephone. So Yiwar talking co sy girlfriend, and my phone began co 0 dead. “fo what f did vas 1 told her T would cal! her back, After that I tung up the phone. aad [the complainant] was pulling ne by my hand, so 7 turned, Constantiy talking to Ber about the phon ‘Shortly after that, (Dupont) walks in, and T ask ner to'get her house phone to call up [iinton’ Girlfriend], And then shortly after chat, she went and got the phone ahd brought it back out to me(.j yigez the phone and I step outside to call my otritriend: > finton also denied the allegations that he showed the complainant a pornographic video in hie vehicle on the evening of December 19, 2004. <2. *** FORPUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter ‘The case was submitted to the jury on the afternoon of September 13, 2005. on September 14, 2005, the jury sent a communication (Communication No. 1) to the trial court, asking, *[wlhat is the definition of the genitailia [sic] areas? is the back of the hand on pubic hair considered touching the genitailia {sic} area?]" The trial court -- upon consultation with counsel -- responded: As to your first question, the term ‘genitalia’ is De Understood in Sta conmen or Gaual vse or meaning ‘As to your second quaation, this is for you co determine based on the instructions you already have, A few hours later, the jury sent another communication (Communication No. 2), indicating that the jury was ‘deadlocked, and asking ‘what should [it] do?” In response, the trial court sent a question to the jury, asking: ‘Would further deliberation of any length be reasonably likely to result in a unanimous verdict?" The jury indicated "no" and submitted a note that stated, *[wlith copies of police reports, written statements of wittnesses [sic] and transcripts, we might be able to reach a unanimous verdict. Otherwise no," On September 15, 2005, the jury sent Communication No. 3 to the trial court, requesting to hear the testimony of a number of witnesses, including the complainant and Hinton. The trial court declined the jury's request. Thereafter, the jury sent Communication No. 4, stating that *{t]he jury cannot reach a unanimous verdict." The trial *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter court determined that the jury was hopelessly deadlocked and declared a mistrial.‘ on October 5, 2005, Hinton filed a motion to dismiss the indictment with prejudice, pursuant to Moriwake, discussed Anfza. The prosecution opposed Hinton’s motion to dismiss. A hearing was held on October 12, 2005, and, subsequent to hearing arguments by the parties, the trial court orally granted Hinton’s motion to dismiss the indictment with prejudice. specifically, the trial court reasoned that such (wlnder Moriuake, when faced with a motion to disni as the one that has been filed in this case, (che trial Court] mist look to a mimber of factors. the firs: is che Severity of the offense charged. Now, this is a class C felony.” It ie the least serious felony class ~~ or it is within the Least serious felony class. I’m not minimizing the offense itself, bat it ie the lowest level felony. And fhat, to me, weighs against retrial. we've got A's and B's fo deal with, "And there afe so apecial circumstances here Eh tems of injury.” ‘There's nothing that i saw, ‘no physical hharm to. the complainant, so T think looking at the offens Steel! and the classifications the legislature has given ic, that one weighs against retrial ‘The second Horivake factor concerns the sunber of prior alstrials and the circustances of the jury Seliberation therein so far as is knows. ‘well, we have only one mistrial. Chief Justice Richardson, in a footnote, Seems £0 say usually after a second hung jury mistrial, it's probably 2 good idea to think seriously about dismissing = Case. That sort of suggeste that doing it after one Rlattial or doing it -~ or allowing @ trial after wo hung Juries 1s probably less -- well, sore unusual. But still, Let ne look at the circunatances of the deliberations. 1 don't know sho pur it in the moving papers, but sonebody said twas eight co four for acquittal, It's not so mich in the numbers. And there ig an indication that at Teast. two people were going back and forth so it could have been 50/50'at one point in tise. And in ay Judgment, that's nore significant, the fact that they were evenly split, than here it ended up at eight to four for acquittal, The jury id sean £0 have problems following the evidence, but they’ (tore allowed to take notes, I'm not sure I saw many of them tsking a lot of notes during the course of the trial. But « we note that both trial counsel met with the jurors after they were dismissed and lesrned that the vote was eight for acquittal and four guilty. -10- *** FORPUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter al in all, the questions they asked and their trouble Following the evidence makes ne feel that this factor weichs favor of a retrial. "The next Usrivake factor is the character of prior trlais in terme of length, complexity, and similarity of evidence presented. Well, we've only had one prior trial Te wasn't very long, So { think that kind of weighs in favor of retrial. It was not complex. In my judgment, it was not a complicated trial, The key issue was credibility. Te'was (Hinton) 's credibiiity versus [the complainant] and her mother pretty much. So to me, chat factor weighs against retrial. Now, the Sext factor is che similarity of evidence, and this iooks back at the prior trials, We've only got one trial so we're not talking about similarity so I'm going to Skip that one. i don’t think it applies £0 our case ‘The next factor ie the Likelihood of any substantial Gifterence in a subsequent trial if allowed. And that one, to me, is important, “(The prosecution] argues the phone records, videotape, {") and. = clarifying the term genitalia. “Te phone records -- well, let me say this much. Svhew trial is noe to correct aistaxes that were made in the first trial because that impacts the fairness factor. So T tend to discount that. The video and the [prosecution] being able to call {a witness] next tine around, T think Z have to dSscount as well because 1 don't ehink (Hinton's counsel] would get into that area again, and it is not Independently admissible as far as T can seo. "and, you know, the clarification of the term genitalia is -- T don't know what else to do. Most people know what that is, And if they didn’t, they could have asked us for a Gefinition. But when we responded that that word was to be Eaken in its ordinary comon meaning, we didn't get anymore Guestions in that area. I think they were more concerned ith whether just touching =~ 1 think there was a reference fo pubie hair =~ was enough, To ne, they were looking at. how serious the offense was rather than any confusion with regard to what genitalia sean I think all of these things considered that in the next trial, the evidence would be substantially similar, Tt would not differ all that much. So that one, rhat factor, weighs against retrial. fon the (trial) court’s evaluation of the evidence, 1 think “- and thie ie the [trial] court's pereonal view -~ s¢ Weighs in favor of retrial. But this factor should be, T PHBE, discounted in view of the ‘auprenel court's opinion in Gtdte ve Lincola(, 72 Haw. 480, 825 P.24 64. (1992)). don't think the Trial] court's view of the evidesce should + Me note that the trial courts reference to ‘the videotape’ is not the one related to the Decenber 13, 2004 incident, but a different Spornographic" tape, Specifically, che complainant testified at trial that, prior to the alleged Decesber 7, 2004 incident, Hinton had used her cancorder and made a recording “of him playing with hineelf,~ hich video he left in the complainant's camcorder. However, this videotape was never recovered by the police or the prosecution. Indeed, at oral argunent, the prosecution conceded That the subject videotape was not in their possession and, thus, ie would not be Likely for it to be introduced at a subsequent trial. ane *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter (Smphasis cots, and determine whether there's a retrial or not. 7 can cone {nto balance, but I don't think the court should place too much weight on that ‘And the final factor is the professional conduct and Sgence of the respective counsel, particularly that of the prosecuting attorney. You know I'don'e have —- T chink both of you did a good job in this case, T think, a of you seen to be Saying, that the professional conduc @iilgence of counsel was fine, was adequate, appropriate, et cetera. And I agree. And I think given that, that factor weighs against retrial ‘you know, so 1've looked at all these things. and 1 haven't given “- well, have tp gay 1: Le a close fase But all things considered. 1 think more of the tactore waich aealnst a retrial. And so 1m going to grant the action to ‘Sienies: added.) on Decenber 21, 2005, the trial court entered its Fors, an order, consistent with its oral ruling, granting Hinton’s motion to dismiss the indictment with prejudice. of particular relevance are the trial court's COLs, which stated: 1. The trial court has the inherent discretionary apiiity to dianies an indictment with prejudice after Balancing the vintarest of 1 e against fundanental fairneat to a defendant as well as the orderly functioning of the court aysten: 20" tn balancing these interest(s) the (eriat) court shall consider the following factors: (1) the severity of the offense charged; (2) the nunber of prior mistrials and the ireunstances of the jury deliberations therein, so far ae is know; (3) the character of prior trials in corns of Tengen, conplexity(,] and similarity of evidence presented: (2)"the likelihood of any substantial difference ina fubsequent trial, if allowed; (5) the trial court's orn evaluation of relative case strength; and (6) the professional conduct and diligence of respective counsel, particularly that of the prosecuting attorney. 3. Ag to the severity of the offense charged, character of the trial, likelihood of any substantial Gitference in a subsequent trial, and the professional conduct and diligence of counsel, the (trial) court finds fsiel that these factora weigh against retrial. 4." consequently, the (triai] court finds (sic) that in balancing ali of the afore-sentioned [sic] factors, the interest is] of the state do not outweigh the fundamental fairness £0 0 defendant as well as the orderly functioning of the court systen. on January 20, 2008, the prosecution filed a timely notice of appeal. -12- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter C. Appeal Before the ICA on direct appeal, the prosecution argued that "the trial court clearly abused its discretion in granting (Hinton]‘s motion to dismiss the indictement [sic] with prejudice’ inasmuch as the trial court's COLs were “wrong” and its FOPs ‘in support thereof [were] clearly erroneous." In response, Hinton contended that the trial court did not abuse its discretion in dismissing the indictment with prejudice on August 26, 2008, the ICA issued an SDO, vacating the trial court’s December 21, 2005 FOFs, COLs, and order granting Hinton’s motion to dismiss the indictment with prejudice, and remanded the case for further proceedings. D0 at 8. As discussed more fully infra, the ICA, citing to State v. Lincoln, 72 Haw. 480, 491, 825 P.2a 64, 70 (1992), and two out-of-state cases, expressed concern that the trial court's dismissal of the indictment with prejudice raised ‘separation-of-powers concerns.” Ad, at 3. In that light, the ICA examined the six Morivake factors and determined that -- contrary to the trial court's conclusion -- such factors ‘weigh{ed) strongly in favor of a retrial’ and that, therefore, the trial court abused ite discretion in dismissing the indictment with prejudice. Id. gudge Foley issued a dissent, indicating that, contrary to the majority's view, *[tJhe [trial] court did not exceed the bounds of reason or disregard rules or principles of law or practice, and, therefore, the [trial] court did not abuse its discretion in -13- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter dismissing the indictment against Hinton.” Id. at 3 (Foley, J, dissenting) (footnote omitted). Additionally, Judge Foley noted that he “believe[d] that the majority’s ‘separation of powers concerns’ [were] unwarranted." Id. at 3 n.1. The ICA’s judgment on appeal was issued on Septenber 18, 2008. Thereafter, on January 29, 2009, this court accepted Hinton’s application and heard oral argument on February 19, 2009. IT, STANDARD OF REVIEW *A [trial] court's ruling on a motion to dismiss an indictment is reviewed for an abuse of discretion." State v. kau, 118 Hawai’ 44, 51, 185 P.34 229, 236 (2008) (citation omitted). ‘The trial court abuses its discretion when it clearly exceeds the bounds of reason or disregards rules oF principles of law or practice to the substantial detrinent bea party litigant. “the burden of establishing abuse of Giscretion is on appellant, anda strong showing is required fo eeeabiieh te State v. Wong, 97 Hawai'i $12, 517, 40 P.34 914, 919 (2002) (citation omitted) . IIT. DISCUSSION As previously stated, Hinton’s assignment of error is grounded in his contention that the ICA ‘improperly incorporated [a] novel paration of powers’ consideration” into its analysis which “conflictis] with Moriwake and its progeny’ and, therefore, “failed to properly apply the abuse of discretion standard of review.” More specifically, Hinton argues that the ICA's nia *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter citation to Lincoln ‘as a segway to import a novel ‘separation of powers’ factor from out-of-state cases, into Hawaii's established Morivake analysis[,]" erodes the inherent constitutional power of the trial court and disregards Moriwake. A. The Relevant case Law 1. Moriwake In Moriwake, this court was faced with, inter alia, the issue ‘whether an indictment for manslaughter was properly ismissed with prejudice following two hung jury mistrials on the charge [of manslaughter]. 65 Haw. at 48, 647 P.2d at 708. During the first trial, which lasted three days, the defendant argued that he did not have the requisite state of mind to commit the crime due to extreme intoxication. Id, at 49, 647 P.2d at 708. Following approximately ten hours of deliberations, the jury informed the trial court that it could not reach a verdict, and the trial court, after questioning the jurors, ‘concluded that the jury was at an impasse and declared a mistrial sua sponte." Id, Three months later, a second trial was conducted on the same charge. Id, Again, the jury could not reach a verdict, and the trial court declared a second mistrial. id. ‘Thereafter, the trial court upon motion by the defendant -- Gismissed the indictment, reasoning, inter alia, that, ‘under the circumstances of this case, a third trial would pose an undue emotional, personal[,] and financial hardship on the defendant.” “15+ *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter Id. at 50, 647 P.2d at 708. The prosecution appealed the trial court’s dismissal. Id, at 50, 647 P.2d at 709 on appeal, this court, recognizing the ‘inherent or implied powers of the court," id, at 55, 547 P.2d at 712, stated that ‘the inherent poser of the court is the power to protect itself; the power to administer justice whether any previous form of remedy has been granted or not; the power to promulgate rules for its practice; and the power to provide process where none exists.” Id. (quoting In xe Bruen, 172 P. 1152, 1153 (wash. 1918)) (internal quotation marks and footnote omitted). This court further stated that the "aspect of the judicial power which the declaration of one or more mistrials because of cenuinely deadlocked juries, even though the defendant's constitutional rights are not yet implicated." Id, (emphasis added) (footnote omitted). The Moriwake court also recognized that: Fx an interest ia ns ‘the iudiciel orocess and in etauring fairness 19 os roceedinas Gndanencal Hust pe-mubiect to the power and reaponaibiliny of the Id. at 56, 547 P.2d at 712 (quoting State v. Braunsdorf, 297 N.W.24 808, 817 (Wisc. 1980) (Day, J., dissenting)) (emphasis added) (format altered). “Simply put,’ the Moriwake court stated, ‘it is a matter of balancing the interest of the state -16- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter against fundamental fairness to a defendant with the added ent of the orderly functioning of Ide (emphasis added) (citation, (ternal quotation marks, and original brackets omitted). Based on the foregoing, the Moriuake court laid out the following six factors, ‘which the trial court should consider in undertaking [the aforementioned] balance," id. at 56, 647 P.2d at 711 (2) the severity of the offense charged; (2) the number of prior mistriais and the circumstances of the Jury Geliberations therein, so far as is known; (3) the character Of prior triais in terms of length, complexity(,] and Sinilarity of evidence presented; (4) the likelihood of any Substantial difference in a subsequent trial, if allowed; (SI the trial coure’s own evaluation of relative case strength: and (6) the professional conduct and diligence of Feapective counsel, particularly that of the prosecuting attorney, Ud. at 56, 647 P.2d at 712-13 (citation omitted). Applying the six factors to the case before it, the Moriwake court held that it did “not perceive the trial court to have abused its discretion in dismissing the indictment[.]" Id. at 57, 647 P.24 at 713. 2. Lincoln Lincoln, like Moriwake, involved an appeal from the Gismissal of an indictment; however, the procedural history of Lincoln differs from that of Moriwake. The defendant in Lincoln was initially charged with and tried on two counts of ‘murder for hire* and one count of ‘attempted murder for hire." 72 Haw. at 482, 825 P.2d at 66. The jury convicted the defendant of all three charges, but failed to find that the defendant perpetrated -17- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter the cries “for hire" as was required by the statute. Id, On appeal, the ICA determined that such failure was harmless and affimmed the detendant’s convictions. Id. at 482-83, 625 P.2d at 66. However, the federal courts (the United States District court for the District of Hawai'i and the United states Court of Appeals for the Ninth Circuit) thereafter granted the defendant's petition for habeas corpus and required that he be retried. Id, at 483, 825 P.2d at 66-67. on retrial, the defendant was convicted of only one of the charges. Id. at 483, 825 P.2d at 67. On appeal to this court, the defendant's conviction was overturned inasmuch as the defendant's confrontation right was violated at trial. id, In overturning the defendant's sole conviction, this court explicitly remanded the case for a new trial. Id, Upon remand (during the pretrial phase of the scheduled third trial), the trial court granted the defendant's motion for a judgment of acquittal and/or dismissal of the Indictment as to the single murder count. Id, at 483-84, 625 P.2d at 67. In so doing, the trial court citing this court's decision in Moriwake -- based its ruling on its ‘inherent ability to dismiss an indictment with prejudice in the administration of justice. Id, at 484, 825 P.2d at 67. On appeal, this court reversed the trial court’s dismissal of the indictment. Id. at 492, 825 P.2d at 71. Looking to the six Moriwake factors, the Lincoln court stated: -18- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Except for the “case strength factor, we find little in the [exial) court's decision to suppor: a dismissal of the indictment. Furthermore, in Moiwake aa well aa in State v, Alvey, 67 Haw. 49, 678 P.2d 5 (1984), we cautioned that a Ertat' court's inkevent pover co disniss an thdictment ta not 2 broad power and tha: trial courts must recognise and weigh the [prosecution's] interest in prosecuting crime against fundamental falresa to the defendant. In Moriwske we aid, swe think that the magnitude of the respective interests of society and of criminal defendants which are implicated in this area of the law requires that we more fully delineate the paraneters within which thia discretion Le properly exercised." 65 Haw. at 56, 647 P-2d at 712. Im alvey ve made clear that, even if "there ae serious questions” about Eimaterial elenont of a crine, Lt 1a not within the erial Court's discretion to usurp the function of the trier of fact before trial. 67 Hav. at 58 -n-6, 678 P.2d at 11 4.6. Ta the ingtant cage, the (trial) court was not confronted with the prospect of s third trial based on evidence which had failed to convict a defendant to previous tines. Rather, the trial court faced the prospect bia ehird trial following two prior convictions, albeit With a lesser quantum of evidence than previously available it ig not for the trial court to'welah the evidence in determining whether te proceed to trial. Id. at 491-92, 825 P.2d at 70-71 (emphases added) (footnote omitted). In other words, this court reasoned that “[iJt is the duty of the trial court, on remand, to comply strictly with the nandate of the appellate court” and ‘implicit in [this court’s] remand was a finding that, on balance, the public’s interest and the defendant's interest in fundamental fairness were served by conducting a new trial. Id. at 485-86, 825 P.2d at 68. B. The Ica‘s Analveia Although recognizing the six Moriwake factors, the 7cA joned that separation of powers concerns require that the trial court's power to dismiss an indictment be used “only in rare and unusual cases when compelling circumstances require such a result to assure fundamental fairness in the administration of -19-  justice.* stated: sD0 at 3. *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter $00 at 3 (citations omitted). Specifically, the ICA ‘hile the dismissal of en indictsant after one or more nistrials should be reviewed for abuse of discretion, that Elseretion ia limited in light of the “magnitude of the feapective interests of society and of criminal defendants Shien are implicaved in this area of the law(.]* (Morivake, 65 aw.) at 56, 647 P.24 at 712; gee State z, Lincoln, 72, Maw. 80, 493, 825 P.24 64, 70. (1992) tavating that va trial court's inherent power to digniss an indiccnent is not a broad power and that trial courte must recognize and weigh the state's interest in prosecsting crime against Eindamental fairness to the defendant"). indeed, some Courts have observed that digmiseal of an indictment in these circunstances raises separation-of-powers concerns Walch require that the power to dlanies be used sparingly [wlecause of separatton-of-povers considerations and the public's interest in the prosecution of Those charged with criminal offenses, the trial court's discretion to disniss cases. in the interest of justice is necessarily Limited, Generally, trial courts say dlomise prosecutions Gh furtherance of justice agsinst the wishes of the prosecutor only in rare and unusual c: When compelling circumstances require such 2 Feault to assure fundamental fairness in the Administration of justice take v. Sauve, 666 A.24 1164, 1267 (ve, 1995) (citations Setetea); State y. Gonzales, 69 7.34 581, 686 (NM. Ct. App. 3002) (whe long as the court's discretion in dismissing Eiecessive prosecutions is limited and exercised with great Caution, there i no separation of powers violation, we Linit the discretion of trial courts so that they may disnies criminal prosecutions only in the nost extreme of casea-*) In the light of the aforementioned separation of powers principles, the ICA turned next to analyze each of the six Moriwake factors as follows: a Severity of offense ‘The ICA reagoned that "the (prosecution! charged Contended thas Hinton was sexusl predator, While the defense portrayed him as an {anocent vietim, there ie a strong societal interest in having a jury resolve chat Gisputel.)" ad. at 8. Thus, contrary to the trial court, che ICA held that "this factor weighs ih favor of a retrial." -20- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter 2 Munber of prior mistrials and circumstances of jury Geliberations therein, 60 far ag is known ‘The ICA agreed with the trial court “that the jury had trouble following the evidencet and, acterdingly, reasoned that ‘there [wes] 2 basis for concluding that another Jury Would Be able to reach a verdict,” id. at 5 3 Character of prior trials (length, complexity, & similarity of evidence! The ICA concluded that the fact that there was “only one prior trial weighe Significantly in favor of allowing a Feerial." Ide at 6-7. @, Likelihood of any The IGA did not directly analyze ehls Substantial difference in | factor, but stated vit does not appear Zaubsequent trial, if | Likely’ that the (prosecution] will introduce alowed significantly different evidence in another trial." ide at 7 5. Trial court's own ‘The ICA concluded that the trial court's evaluation of the View that Lincoln prevented it from weighing Felative case strength | the evidence was erroneous. Id at 5-6 Nowever, the ICA did not present ite own view of the relative case strength. %. Professional conduct and |The ICA aid not address this factor. Ailigence of respective counsel, particularly that of the prosecuting In sum, the ICA concluded that: There are substantial factors here weighing in favor of a Fetrial: this isa serious offense, there is reason to Gonciude that ancther jury could reach a verdict, and the Getendant hes been subjected to only one trial. ‘There are fone factors that weigh against a retrial, such as the fact that it does not appear likely that the [prosecution] will introduce significantly different evidence in another #riat Walle tha is a legitimate consideration, ve believe that it mist be tempered by the (erial] court's observation that the Jury appeared confused by the testimony even though the Eriat was not particularly complex. Thus, there is basis for concluding that another jury could reach a verdict even if the evidence is essentially the same. On balance, we believe that che factors idenvified by Morivake weiss strongly in favor of a retrial, and(,) accordingly, we Conciude that the [trial] court abused its discretion in Glenissing the Indictnent. Td. at 7-8. In his dissent, Judge Foley reasoned simply that the trial court “applied the Yoriwake factors . . .{,] did not exceed -21- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter the bounds of reason or disregard rules or principles of law or practice, and, therefore, . . . did not abuse its discretion in dismissing the indictment against Hinton.” D0 (Foley, J., Gissenting) at 2-3. Additionally, Judge Foley noted that, in his view, “the majority's ‘separation of powers concerns’ [were] unwarranted” inasmuch as: ra Moriwake, the Haw Suprene Court stated: (ile are cognizant of the deference to be accorded the scuting attorney with regard to crininal proceedings ich deference Le not without Bounds, Ag seated sleewnere: Society has a strong interest in punishing criminal conduct. aut soclety algo haa an Interest in protecting the integrity of the judicial process and in ensuring fairness to defendancs in judiclal proceedings. Where those Fundamental interesta are threatened, the Sdiseretion’ of the prosecutor mist be subj to the poser and responsibility of che court. (Worivake, 65 Haw.) at 56, 647 P.2d at 712 (quoting State v 297 W¥.24 808, B17 (Wis. 1980) (Day, Joy Sasenting) Id at 3nd. c. ta ene" Preliminarily, we address Hinton’s arguments regarding the ICA’s “separation of powers concerns.* Specifically, Hinton argues that the ICA erred inasmuch as it: (1) ‘use[d] dicta from Lincoln to begin injecting novel separation of powers considerations into the established Moriwake analysis” and, thus, “radical{ly] depart led] from Moriwake and its progeny"; and (2) ‘attempled) to elevate the ‘wishes of the prosecution’ factor within the current Moriwake analysis and concomitantly Giminish(ed) the trial court's discretion.” additionally, Hinton 322+ *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter takes issue with the ICA‘s use of two out-of-state cases, Sauve and Gonzales, which he claims “are clearly distinguishable and inapposite.* As previously indicated, the ICA, in its SD0, reasoned that separation of powers concerns require that the power to Gismiss be used ‘only in rare and unusual cases when compelling circumstances require such a result to assure fundanental fairness in the administration of justice." sD0 at 3 (citations omitted). However, we believe, as did Judge Foley, that the ICA najority’s separation of powers concerns are unwarranted. Indeed, even the prosecution disavowed any reliance on, or applicability of, Sauve or Gonzalez. As indicated in Judge Foley's dissent, this court, in Moxinake, explicitly stated that it was ‘cognizant of the deference to be accorded the prosecuting attorney with regard to criminal proceedings.’ SD0 (Foley, J., dissenting) at 3 n.1 (quoting Moriwake, 65 Haw. at 56, 647 P.24 at 712). However, this court also pointed out that ‘such deference [was] not without bounds," holding that, where society's fundamental interests in protecting the integrity of the judicial process and in ensuring fairness to defendants in judicial proceedings are threatened, *the ‘discretion’ of the prosecutiion| must be subject to the power and responsibility of the court." Morivake, 65 Haw. at 56, 647 P.2d at 712 (emphasis added) (citation omitted). Nowhere in its opinion did the Moriwake court "limit -23- *** FOR PUBLICATION *** in West’s Hawai‘i Reports and the Pacific Reporter the discretion of trial courts so that they may dismiss criminal prosecutions only in the most extreme cases." SDO at 3 (citation and internal quotation marks omitted). Indeed, as observed by then-ICA Judge Acoba: (this court’s} recognition of the trial court's inherent power to dismise an indictment with prejudice {in Hariuake! Bnd ite adoption of @ standard from the dissenting opinion £297 W.w.24 808 (Wis. 1980), oted the fajority's holding in that’ ca £ Involved the prosecution's motion to diemi Eharge of welfare fraud without prejudice since te was not ready to proceed to trial. The trial court granted the motion, but dismissed it with prejudice. Id. at 610. The Bajority() held that() ‘trial courts of this'state do not Possess the power to disniaa a criminal case with presudice Delor to the attachment of Jeopardy except in the case of Wolacion of a constitutional right toa speedy trial.” Id. ae aie. State v. Magee, 78 Hawai'i 33, 37 0.9, 689 P.24 1092, 1096 n.9 (app. 1995). In other words, by holding that the trial court has the inherent power to dismiss an indictment upon “balancing the interest of the state against fundamental fairness to a defendant with the added ingredient of the orderly functioning of the court systen,* 65 Haw. at 56, 647 P.2d at 712, the Moriwake court implicitly rejected the view that the trial court's discretion was limited to "extraordinary situations. Inasmuch as the Moriwake court was clearly cognizant of the deference to be given to the prosecution in pursuing criminal indictments, as well as the other interests at stake when it adopted the six-factor framework laid out in the opinion, any *separation of powers concerns" are subsumed within such framework. Accordingly, the ICa’s injection of an additional *separation of powers" analysis into the six-factor -24- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter Moriwake framework represents a departure from, and thus is in contravention of, Hawaii’s case law. It is unnecessary to look to cases outside this jurisdiction when Hawai" case law on the igeue exists and, especially, when the existing case law is on point.’ Moreover, because any separation of powers concerns are, as indicated above, subsumed within the Moriwake analysis, the ICA‘s analysis on this point was unnecessary. At oral argument, the prosecution, in fact, conceded that any separation of powers concerns were included withing the Moriwake factors. Additionally, the ICA’s citation to Lincoln is unavailing inasmuch as it is factually distinguishable and, therefore, inapposite. This court’s decision in Lincoln was based primarily on the fact that the case bad been remanded to the trial court for a retrial; thus, the trial court was without + the ICA majority's decision to reach out to foreign jurisdictions and adopt, the language expounded in gave and Gonzales in the face of controlling Rawei's lew was a departure trom this court’ precedent, which the ICA ie bound to follow. The ICA majority thereby disregarded the well-settled principle that Under the rule of stare decisis, where a principle has been fussed upon by the court of last resort, it-te the duey of Geoard to their views a4 to ies propriety, until the Gecision bas been reversed or overruled by the court of last esort or altered by legislative enactnent Bobingon v. Arivosh{, 65 Maw. 631, 653, 658 P.24 287, 297 (2982) (emphasis added) (format altercd) (citation omitted). When the ICA fails to follow Brocedent, It casta the law in disarray, creating uncertainty for trial Courts, the prosecution, and the defense. Indeed, the ICA has been Gnconsictent'in its treateent of Nociwake. See State v. fumbawa, No. 27902 (app. Aug. 30, 2007) (SDO), cert. denied, No, 27902 (aw van. 25, 2008) (Gpho.ding the trial cours’ diemissal of indictwente pursuant to\voriwake over dissents separation of povers argunente relying on, inter alia, Sauve and Gonzales). “In light of the fact that Hawai'i Aules of appellate Procedure Rule 35-(2008) now permite sp0s to be cited for persuasive value, it is eapecially inportant for the ICA to consistently follow precedent, which, i the instant case, it failed to do. -25- *** FOR PUBLICATION *** in West’s Hawai‘i Reports and the Pacific Reporter discretion to dismiss the indictment prior to the mandated retrial. Conversely, Moriwake and the instant case deal with the trial court’s discretion to dismiss an indictment after one or more mistrials have been declared. *** Based on the foregoing, we hold that, by injecting an additional “separation of powers” analysis, taken from two out- of-state cases, into the Moriwake framework, the ICA acted in contravention of this jurisdiction’s case law. Accordingly, we turn next to an examination whether the ICA, under Morivake, erred in vacating the trial court’s December 21, 2005 FOFs, Cots, and order. D. Application of the Moriwake Factors: 1. The Severity of the offense charged Here, Hinton was charged with sexual assault in the third degree, which, as indicated by the trial court, is a class C felony. The trial court found that this factor weighed against retrial because (1) a class C felony ‘is the least serious felony class" and (2) there were ‘no special circumstances . . . in terms of injury," when “looking at the offense itself.* Conversely, the ICA determined that this factor weighed in favor of a retrial because, although “the statutory classification of the offense is a legitimate reference point,” the prosecution "contended that Hinton was a sexual predator, while the defense portrayed him as an innoc: victim" and that, therefore, “[tJhere [was] a strong societal interest in having a =26- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter jury resolve that dispute." SD0 at 4. We agree: however, the same can be said for every criminal prosecution. Indeed, as the Morivake court explicitly recognized, ~society has a strong interest in punishing criminal conduct." 65 Haw. at 56, 547 P.24 at 712. Nevertheless, we conclude that the trial court’s determination that the severity of the offense factor weighs against retrial did not “exceed the bounds of reason’ because, when considered in light of, or as compared with, other felony offenses (such as murder, rape, or kidnapping), the charged offense is less serious. We do not suggest, however, that ‘less serious’ equates with "not serious." we emphasize that, by assessing sexual assault in the third degree as “less serious,” it is not our intent to minimize the impact that a perpetrator’s conduct has upon a victim or to suggest that society has less of an interest in punishing such criminal conduct. In this case, we hold -- contrary to the ICA -~ that the trial court did not abuse its discretion in finding that the first Moriwake factor weighed against retrial. 2. The Munber of Prior Mistrials and the Circumstances of the Jury Deliberations Therein, So Far as is Known ‘The trial court found that this factor weighed in favor of a retrial because there had been only one trial and, although the jury indicated that it was eight to four for acquittal at one point, it seemed confused. The ICA agreed with the trial court’s assessment “that the jury had trouble following the evidence" and -27- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter additionally reasoned that, inasmuch as the case against Hinton was ‘not a particularly complex case, . . . there [was] a basis for concluding that another jury would be able to reach a verdict." sb0 at 5, We agree with the ICA that the trial court did not abuse its discretion in finding that the second factor weighed in favor of a retrial. 3. The Character of Prior Trials in Terms of Length, Complexity and Similarity of Evidence Presented The trial court determined that this factor weighed against retrial because (1) the trial was not very complicated and (2) the key issue was credibility -- Hinton’s versus that of the complainant and her mother. The ICA disagreed with the trial court’s assessnent of this factor and reasoned that "the fact that there [had] been only one prior trial weighs significantly in favor of allowing a retrial." $00 at 6. Specifically, the ICA reasoned: 57, 647 Pr2d at 713, Concerns about the unfalraet esting a defendant to the burden of multiple 3¢, 667 P.2d at 712, are lees strong when = defend only been subjected to one prior trial Id, at 6-7, The ICA seemed particularly troubled by the fact that Hinton id ‘not cite[] any appellate decision from Hawai'i or any other jurisdiction in which a dismissal after a single mistrial based on a hung jury was affirmed." Id. at 7. ‘he ICA was correct that the Moriwake court ‘recognized that dismissal could be appropriate after a single mistrial, (but -28- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter that} the opinion implies that such dismissals would be rare.’ 65 Haw. at 57, 647 P.2d at 713 (holding that, in certain cixcunstances, “the preclusion of a second’ trial would be appropriate). However, the fact that Hinton failed to cite toa single appellate decision affirming a dismissal after only a single mistrial is not fatal to his position. Indeed, such dismissals are seemingly rare and should not be encouraged as a conmon practice; nevertheless, the Moriwake court squarely placed the discretion in the hands of the trial court to determine under which "certain circumstances" dismissal after one or more mistrials would be appropriate. Here, the trial court, in weighing thie factor, found in favor of dismissal because (1) the trial was not very complicated and (2) the key ii credibility. The trial court’s determination was not unreasonable, and, thus, we conclude, contrary to the ICA, that the trial court's finding that the third factor weighed against retrial was not an abuse of discretion. 4. The Likelihood of Any Substantial Difference in a Subsequent Trial, if Allowed The trial court believed that this factor was an important factor and determined that the evidence submitted in a subsequent trial, if allowed, ‘would be substantially similar. ze would not differ all that much.* Apparently, the ICA agreed, stating that "it does not appear likely that the (prosecution! will introduce significantly different evidence in another -29- *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter trial.’ SDO at 7. Accordingly, we agree with the ICA that the trial court did not abuse its discretion in concluding that this factor weighed against retrial. 5. The Relative Case strength With regard to the relative case strength factor, the trial court stated: che [trial] court's evaluation of the evidenc think = and this io the (erlal] court’s personal view weighs in favor of retrial. Bot this factor should be, T think, discounted in view of the (supreme) court's opiton fn Stace v. Lincoin(, 72 Faw, 460, 625 P-20 66 (1992)). 7 Teriai) court's view of the evidence should Yel or not. “ie ean cone (emphasis added.) tn our view, the trial court’s belief that this factor should be “discounted” under Lincoln was based on an incorrect reading of that case. In that regard, we believe the trial court erred We recognize, however, that the trial court stated that, were it to evaluate the evidence, it would find that this factor weighed in favor of retrial and, additionally, that it believed that the relative case strength factor could *come into balance,’ when weighing the Moriwake factors (although it would not give this factor too much weight). Nothing in Morivake indicates that all factors must be given equal weight or that certain factors must be given more weight than others. We, therefore, believe that, although the trial court did not issue a specific finding or conclusion on this factor, it did consider it. The record reflects that the trial court -- in its final -30- *** FOR PUBLICATION *** in West's Hawai'i Reports and the Pacific Reporter analysis -- "balanced" the relative case strength factor and determined it weighed in favor of retrial. We, therefore, hold that the trial court's erroneous reading of Lincoln was harmless. ‘Thus, giving due deference to the trial court’s determination, we hold that this factor weighs in favor of retrial ‘The Professional Conduct and Diligence of Respective Counsel, Particularly That of the Prosecuting Attorney Here, the trial court determined that this factor weighed against retrial inasmuch as the attorneys for both parties "did a good job.* SD0 at 13. The ICA aid not contend that this factor weighed in favor of retrial. In sum, the trial court considered all of the factors enunciated in Morivake and, recognizing that the circumstances presented ‘a close case," determined that, ‘in balancing all of the afore-mentioned factors, the interests of the [prosecution] do not outweigh the fundamental fairness to the defendant as well as orderly functioning of the court system.* Based on the. discussion supra, none of the trial court's findings or conclusions ‘exceed the bounds of reason or Gisregard rules or principles of law or practice." Thus, we agree with Judge Foley that the trial court did not abuse its discretion in dismissing the indictment against Hinton. Inasmuch as the ICA majority determined otherwise, we hold that it erred. oe *** FOR PUBLICATION *** in West’s Hawai'i Reports and the Pacific Reporter 2v. concuszos Based on the foregoing, we hold that the ICA erred in (2) snjecting an additional ‘separation of powers" analysis into the Morinake framework and (2) holding that the trial court abused its discretion in disnissing the indictnent with prejudice. Accordingly, we reverse the ICA’s Septesber 18, 2008 judgment on appeal and affirm the trial court's Decenber 21, 2005 rors, cous, and order granting Hinton’s motion to dismiss the indictment with prejudice. Karen T. Nakasone, Dipl Deputy Public Defender, for petitioner /defendant- appellant Prsiles Crete uno venus masse, — 32+ 

4feb70ff411b62c4824aec98cee43337d788c7ee9cceca66854bc5fa9170e925

2009-03-19T00:00:00Z

9a56bab2-b8d3-4351-83e9-f65d7ed63d1a

Torres v. State

hawaii

Hawaii Supreme Court

g No. 28682 ony IN THE SUPREME COURT OF THE STATE OF HAWAI'I ee ROONEY TORRES, Petitioner/Petitioner-Appetiant = 8 STATE OF HAWAI'I, Respondent /Respondent-Appellee CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (S.P.P. NO. 04-1-0007K; CR. NO. 94-076K) (By: Acoba, J., for the court") ‘The Application for Writ of Certiorari filed on January 6, 2009 by Petitioner/Petitioner-Appellant Rodney Torres is hereby rejected. DATED: Honolulu, Hawai'i, February 10, 2009. FOR THE COURT: ‘Associate Justic \ “ John L. Olson, on ‘the application for petitioner/petitioner- appellant. jana, Acoba, Duffy, Jd.1 and Codey Nake + considered by: Hoon, Circuit Judge Ayabe, assigned by reason of vacancy. 

42ee04b9983233e4ba7985e4a69e12945a9d731f4b04a512f32f2d807d095d00

2009-02-10T00:00:00Z

6217bda9-ed47-45ad-9a93-a055d98897e1

Davies v. Moysa

29533

hawaii

Hawaii Supreme Court

LAW LIBRARY ‘6002 so. 29533 IN THE SUPREME COURT OF THE STATE OF HAWAT’ O34 ERIC 1. DAVIES AND MIRELIA M. ORVIES, etitioapre, 3 a s DAVID 7. MOYSA AND JANE F. MOYSA; THE HONORABLE MARK E. RECKTENWALD, THE HONORABLE CORINNE K.A. WATANABE; AND THE HONORABLE ALEXA D.M. FUJISE, Respondents. ORIGINAL PROCEEDING 1 rt (By: Moon, C.J., Nakayama, Acoba, Duffy, JJ., and Circuit Judge Lee, assigned by reason of vacancy) Upon consideration of the "petition for writ of mandamus to the intermediate court of appeals" submitted by Petitioners Eric L. Davies and Mirella M. Davies, and the declaration and exhibits attached thereto, pursuant to Rule 21(c) of the IP IS HEREBY ORDERED, Hawai'l Rules of Appellate Procedure, that the Petition is denied. DATED: Honolulu, Hawai'i, January 27, 2009. hom seh a C1 rounlbuey re Goon Aatign de » onan NS TR HL ok 

8dd19bbb9dab72db74bcc26416b70e8e06217eeb63eb53cbdb0dd6298373b7d4

2009-01-27T00:00:00Z

a416a669-5aca-4031-ad49-b43c477ea4c2

Doe v. Doe

hawaii

Hawaii Supreme Court

No. 27490 WE 02 IN THE SUPREME COURT OF THE STATE OF HAWAI'T JOHY DOE, Petitioner Plaineitenmpeleae z 6 vs. ie 2 JANE, DOE, Respondent-Defendant-apperiantsl CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (FC-DIVORCE NO. 95-2875) ORDER (By: Nakayama, J.) Upon consideration of the stipulation to Dismi, Respondent-Defendant-Appellant’s Novenber 10, 2008 Request for an Advance of Fees to Respond to Plaintift’s Application for Writ of Certiorari and the record herein, IT IS HEREBY ORDERED that the stipulation {s approved. DATED: Honolulu, Hawai'i, January 6, 2009. Presaear Coed re Associate Justice 

5fc74a8d19f3dde2fb7a67e0196d8f24e23b3748925252dc9bbf9b47e06b170c

2009-01-06T00:00:00Z

428b2bf5-494b-4f55-bf76-dd446f7457eb

In re Pabst

hawaii

Hawaii Supreme Court

No. 29861 IN THE SUPREME COURT OF THE STATE OF HAWAT'T IN RE THOMAS STEPHAN PABST, Petitioner. 2 ORIGINAL PROCEEDING 3 QRDER GRANTING PETITION TO RESIGN AND SURRENDER LICENSE (By: Moon, C.J., Nakayama, Acoba, and Duffy, JJ., and Intermediate Court of Appeals Associate Judge Nakamura, ‘assigned by reason of vacancy) Upon consideration of Petitioner Thomas Stephan Pabst’ 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 substantially 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 Pabst 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 Pabst shall comply with the notice, affidavit, and record requirements of sections (a), (b), (a), and (g) of RSCH 2.16. IT IS PINALLY ORDERED that the Clerk shall remove the name of Thomas Stephan Pabst, attorney number 2298, from the roll of attorneys of the State of Hawai'i, effective with the filing of this order. DATED: Honolulu, Hawai'i, February 3, 2009. Pees C1 Teh Lr. Yuu e Rudtignn - Gn U. Vlohearas— 

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2009-02-03T00:00:00Z

cd736f5d-0e51-4cc8-94c4-f18bef519310

Kapuwai v. City and County of Honolulu, Department of Parks and Recreation

hawaii

Hawaii Supreme Court

LAW LIBRARY No. 27915 IN THE SUPREME COURT OF THE STATE OF HAWAT'T DARRELL N, KAPUWAT, Respondent /Claimant-Appellant, CITY AND COUNTY OF HONOLULU, DEPARTMENT OF PARKS AND RECREATION, Petitioner/Employer-Appellee, Self-Insured, CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CASE NO. AB 2004-328 (2-01-13437)) ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI (By: Duffy, J., for the court’) Petitioner/Employer-Appellee, Self-Insured City and County of Honolulu, Department of Parks and Recreation’s application for a writ of certiorari, filed on January 23, 2009, is hereby accepted. DATED: Honolulu, Hawai'i, March 3, 2009, FOR THE COURT: Com Dats + Associate Justice Paul K, Hoshino, Deputy Corporation Counsel, for petitioner/empioyer- appellee, self-insured 2 on the application 3 Herbert R. Takahashi 3 a and Danny J. Vasconcellos } = for respondent /claimant- = rm appellant in opposition = o * considered by: Moon, C.J., Nakayama, Acoba, Duffy, JJ., and Cérouse Judge Kim, assigned by Feason of vacancy. 

2a2baa3f144af5a4e75be1031876baebd5ca6d1a6a6703cd4d472e1ce8ee2dd7

2009-03-03T00:00:00Z

1419f761-33da-4563-8964-c525c007190e

Lolohea v. State

hawaii

Hawaii Supreme Court

LAW LIBRARY Nos. 28051 and 28052 “3 a IM THE SUPREME COURT OF THE STATE OF HAWAI? oats SIONE LOLOEA, Petitioner-Appellant, =: STATE OF HAWAI'I, Respondent-Appellee. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 28051, $.P.P. NO. 05-1-002K (Cr. No. 98-017K)) 98-215K)) (no. SIPLP. NO. 05-1-003K (Cr. No. (no. 28052, (By: Nakayama, J., for the court") Petitioner-Appellant’s application for writ of certiorari filed on December 9, 2008, is hereby rejected. Honolulu, Hawai'i, January 23, 2009. FOR THE COURT: Bee Co Tou our associate Justice DATED: Karen T. Nakasone for petitioner-appellant fon the application ‘considered by: Moon, C.J.) Nakayama, Acoba, and Duffy, 39., and circuit Judge Hong assigned by reason of vacancy 

468f82dcc93899890c3073188c51cc159a14c2d858eebb9ea2b543b1000a4c3e

2009-01-23T00:00:00Z

367f7de8-7bcb-41ca-8cb5-3981c057d74e

Kostron v. Perkins

hawaii

Hawaii Supreme Court

no. 29599 IN THE SUPREME COURT OF THE STATE OF HAWAT'T EUGENE KOSTRON, Petitioner, THE HONORABLE RICHARD K. PERKINS, JUDGE OF THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI'I, Respondent. ORIGINAL PROCEEDING (CR. NO. 7-1-1510) ‘ORDER (By: Moon, C.J., Nakayama, Acoba, and Duffy, and Intermediate Court of Appeals Judge Fujix assigned by reason of vacancy) * ‘Vu 1 VHUGN U4:2 Hd 4 634 upon consideration of the petition for a writiot mandamus filed by petitioner Eugene Kostron and the papers in support, it appears that the respondent judge’s decision to dismiss Cr. No. 07-1-1510 with prejudice was announced on August 25, 2008 and reduced to a written order filed on October 28, 2008 (dismissal order). The August 25, 2008 decision was subject to a motion for reconsideration filed on October 28, 2008 with a hearing date before the respondent judge on December 10, 2008. The dismissal order was filed after the filing of the motion for reconsideration and during the pendency of such motion. The filing of the dismissal order on October 29, 2008 did not terminate the proceedings in Cr. No. 07-1-1510 inasmuch as the motion for reconsideration remained to be heard on Decenber 10, 2008. The filing of the dismissal order after the filing of the motion for reconsideration and during the pendency of such motion did not divest the respondent judge of jurisdiction te hear the motion for reconsideration. The aad respondent judge had inherent power to reconsider the August 25, 2008 decision. See HAS § 603-21.9(6) (1993); Kawamata Farms v United Agri Products, 86 Hawai'i 214, 242, 948 P.2d 1085, 1083 (2997). The granting of the motion for reconsideration was not a flagrant and manifest abuse of discretion. Thus, petitioner is not entitled te mandamus relief. See Kema v. Gaddis, 91 Hawai'i 200, 204-05, 982 F.2d 334, 338-39 (1999) (A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Where a court has discretion to act, mandamus will not lie to interfere with or control the exercise of that discretion, even when the judge has acted erroneously, unless the judge hi 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, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied. DATED: Honolulu, Hawai'i, February 4, 2009. ve Cacti ore Yorme Badia \ Becen OP Fgh - 

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2009-02-04T00:00:00Z

9c909a43-a436-454e-b823-b15061bd796c

Pacific Mortgage Investors LLC v. Johnson

hawaii

Hawaii Supreme Court

No. 29317 IN THE SUPREME COURT OF THE STATE OF HAWAI'T PACIFIC MORTGAGE INVESTORS LLC, Respondent /Plaintiff-Appellee, THOMAS MOSES JOHNSON, I3I, algo known as Thomas M. Johnson, III, Petitioner /Defendant-Appel lant, 3 and = FIRST HAWAIIAN BANK and BANK OF HAWAII, a Respondents /Defendants-Appellees, = and 2 JOHN DOES 1-5; JANE DOES 1-5; DOE PARTNERSHIPS DOE CORPORATIONS 1-5; DOR ENTITIES 1-5; and DOE GOVERNMENTAL UNITS 1-5, Defendante FIRST HAWAIIAN BANK, Respondent /Counterclaim Plaintiff£-appellee, PACIFIC MORTGAGE INVESTORS, LLC, Respondent /Counterclaim Defendant-Appellee, and THOMAS MOSES JOHNSON, III, also known as Thomas M. Johnson, III, Petitioner/Cross-Claim Defendant-Appeliant, and COLONY SURF, LTD. and COLONY SURF ASSOCIATION OF APARTMENT OWNERS, Respondents/Tdentified Defendant Doe Corporation 1 and Doe Entity 1/appellees and JOHN DOES 1-5; JANE DOES 1-5; DOE CORPORATIONS 2-5; DOE GOVERNMENTAL AGENCIES 1-5; DOE PARTNERSHIPS 1-5; and DOE ENTITIES 2-5, Defendants, gas and JOHN DOES 6-20; JANE DOES 6-20; DOE PARTNERSHIPS 6-20 DOE CORPORATIONS 6-20; DOE *NON-PROPIT* CORPORATIONS 6-20 ‘and DOE GOVERNMENTAL UNITS 6-20, Defendants. APPEAL FROM THE FIRST CIRCUIT COURT (crv. NO. 07-1-1893) ORDER (By: Moon, C.J., for the court!) Upon consideration of the “motion for stay pending review by the United States Supreme Court,* filed on February 13, 2009 by petitioner /defendant /cross-claim defendant /appellant ‘Thomas Johnson, III, the papers in support and in opposition, and the record, I IS HEREBY ORDERED that the motion for stay is denied. DATED: Honolulu, Hawai'i, Warch 5, 2009. FOR THE COURT: He gustice + Considered by: Moon, C.J., Nakayama, Acoba, and Duffy, JJ. and circuit Juage Town, aasigned by reason of vacancy: 2 

fa9c715b910fe7bc9971e0cfb0eac8c8b3c99c9b848db9879c10a22eeec39ba1

2009-03-05T00:00:00Z

5c2ed536-c6e2-4ff1-8c63-4171f130ce30

State v. Mailo

hawaii

Hawaii Supreme Court

No. 28512 IN THE SUPREME COURT OF THE STATE OF HAMA: STATE OF HAWAI'I, Respondent-Appellee, PENIAMINA MAILO, Petitioner-Appellant. CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CR. NO. 06-1-1770) ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI (By: Nakayama, J., for the court®) Petitioner-Appellant’s application for writ of certiorari filed on January 30, 2009, is hereby rejected. DATED: Honolulu, Hawai'i, March 9, 2009. rok tHE cour: ran Bere Crneccaeyane ¢ seat 4) Associate Justice x oy s Boe ws Stuart N. Fujioka, for ~ petitioner-appellant on the application 2 7 2 B 6 F 2 2 fh ? =z 9 ‘considered by! Moon, C-J., Nakayama, Acoba, and Ouffy, J+, and césoust Judge Slondin, aceigned by reason of vacancy 

e5c57bd8d8fec0bebd8c2f4780b1ee1d85c46886461c75fa8476c1f0f656935d

2009-03-09T00:00:00Z

e5b95ffc-73eb-47d8-b791-274f6545a67d

Hanabusa v. Lingle

hawaii

Hawaii Supreme Court

No, 29391 IN THE SUPREME COURT OF THE STATE OF HAWAI'I COLLEEN HANABUSA, Individually and in her capacity as ‘Senate President and NORMAN SAKAMOTO, Individually and in his capacity as Chair of the Senate Committee on Education, Petitioners, vs. : 2 LINDA LINGLE, Governor, State of Hawai'i, Respondent 7 = SF se ~~ ORIGINAL PROCEEDING 3802 & ORDER 5 g (By: Moon, C.J., Nakayama, Acoba, and Duffy,"bs.") & upon consideration of Respondent Governor Linda Lingle’s “motion to amend order filed December 4, 2008 to permit additional time to appoint the second at-large regent of the University of Hawaii" and the papers in support, in opposition, and in reply, IT IS HEREBY ORDERED that the motion to amend the Decenber 4, 2008 order is denied. Respondent shall, within five days of the date of this order, nominate the second at-large regent of the University of Hawaii from the list of qualified candidates duly presented to respondent on February 21, 2008 by the Candidate Advisory Council. DATED: Honolulu, Hawai'i, January 20, 2009. yh ON ates ts Bao Carns, Rabin r- Associate Justice Levinson, who heard oral argument in this case, retired from the bench on Oecesber 30, 2008. gee Hawai Revised staruces § 602-10 (Supp. 2007) ("After oral argunent of a cage, if 2 vacancy w the case say be decided or disposed of upon the concurrence of nonbers of the court without filling the vacancy ox the place of such justice.) 

eccd4a2ec02c12f0619ccee0731a49efd7b4e18ad4b3400d9be35ea2fe4fc656

2009-01-20T00:00:00Z

7c55ec94-851d-4565-ad96-3a61cebe8246

AIG Hawaii Insurance Company, Inc. v. State Farm Insurance Companies

hawaii

Hawaii Supreme Court

No. 27789 IN THE SUPREME COURT OF THE STATE OF HAWAL Petitioner/ AIG HAWAII INSURANCE COMPANY, INC. , Plaintiff-appellant /Cross-appellee, a a oats STATE FARM INSURANCE COMPANIES, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondents/- Defendants-Appel lees /Cross-Appellantsi|> al DOE CORPORATION 1-1 a 2 = G and JOHN DOES 1-10; JANE DOES 1-10; ‘and DOE PARTNERSHIPS 1-10, Defendants. CERTIORARI 10 THE INTERMEDIATE COURT OF APPEALS (CIV. NO. 02-1-0367) (By: Moon, C.J., for the court") Petitioner/plaintiff-appellant/cross-appellee AIG Hawaii Insurance Company, Inc.'s application for writ of certiorari, filed December 31, 2008, is hereby rejected February 5, 2009. FOR THE COURT: DATED: Honolulu, Hawai'i, Considered by: Yoon, C.J., Nakayama, Accba, and Duffy, 33., and judge Border, assigned by reason of vacancy chreute 

a16b5f5b8e3f4ef6b06ffca106f28bd129e30bc72c56e3c2aa1fd5d3a400f3ff

2009-02-05T00:00:00Z

9a742ae3-7183-4794-b207-a7b5cf5d4e1a

In re Investigation of Fong

hawaii

Hawaii Supreme Court

No. 25098 IN THE SUPREME COURT OF THE STATE OF HAWAI‘T In the Matter of the Investigation of 3 DAVID L. FONG, Judge, District Court of the First Circuit, R State of Hawai't ORIGINAL PROCEEDING Moon, CJ., for the court’) We have considered (1) the Commission on Judicial Conduct's Report and Recommendation for the imposition of public censure upon former First Circuit District Judge David L. Fong, (2) the record, including Respondent Fong’s Stipulation of Facts, and (3) Respondent's lack of opposition to the Report and Recommendation, as exhibited by the fact Respondent declined to Eile exceptions or a brief or otherwise oppose the Report and Recommendation, It appears from the record that Respondent Fong did not fully disclose his wife's many and various financial, fiduciary, and ownership interests, or acquisitions and transfers of such interests, on financial disclosure statements filed between 1990 and 2003, It further appears that Rule 15 of the Rules of the Supreme Court of the State of Hawaii (RSCH) required disclosure of the interests. It also appears that Respondent Fong was at least aware of alleged criminal activity Duffy, Ja. Considered by: Moon, CJ; Levinson, Nakayama, Acoba and at a property owned by his wife. Respondent Fong’s conduct, summarized above, cast his judicial office into disrepute and were violations of RSCH 8.5(a) (4) and RSCH 8.5(a) (5) and Canon 2 of the Hawai'i Revised Code of Judicial Conduct. Finally, in mitigation, it appears that Respondent Fong was highly respected and performed his duties ably and conscientiously during the time he served as a per diem and full-time judge of the District Court of the First Circuit. Because the Conmission’s recommendation for public censure is supported by the record, particularly the stipulation of facts entered into by Respondent and special counsel, IT TS HEREBY ORDERED that Respondent David L. Fong is hereby publically censured. DATED: Honolulu, Hawai'i, December 22, 2003. FOR THE COURT: Le Justics 

495dba1bea566afd265480c52a90be54810ab171be2a0f5b47266dcc232bda47

2003-12-22T00:00:00Z

79944f46-5dd2-48f8-91ad-567e17129284

Colony Surf, Ltd. v. Director of the Department of Planning and Permitting.

116 Haw. 510

hawaii

Hawaii Supreme Court

*** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** IN THE SUPREME COURT OF THE STATE OF HAWAT'I ---000--- COLONY SURF, LTD., Plaintif£/Appellant-Appellee, vs. DIRECTOR OF THE DEPARTMENT OF PLANNING AND PERMITTING; MICHEL! S INC. and D.G. ANDERSON, Defendants/Appellees-Appellante, ZONING BOARD OF APPEALS, Defendant/Appellee-Appellee. SSS ive Wo. 26037 92330) APPEAL FROM THE FIRST CIRCUIT COURT (CIV. No, 03-1-0294) DECEMBER 26, 2007 MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ. OPINION OF THE COURT BY NAKAYAMA, J. Defendants/Appellees-Appellants, director of the Department of Planning and Pezmitting, State of Hawai'i, Michel's Inc., and D.G. Anderson (collectively referred to as “Appellants”), appeal from the first circuit court's! July 23, 2003 judgment on appeal in favor of Plaintif# /Appellant-Appellee, Colony Surf, Ltd. ("CSL"), Appellants jet the following points of error on appeal: (1) the circuit court erred by ruling that the daytime operation of Michel’s “constitute(d] an ‘expanded’ nonconforming use” under section 21-4.110 (c} (1) of the Land Use Ordinance, codified as Revised Ordinances of +The Honorable Eden Elizabeth Hifo presided.  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER Honolulu ("ROHY) § 21-4.120(c) (1)s* (2) the circuit court erred by ruling that the daytime operation of Michel's following its tenporary cessation constituted an “action” within the meaning of ROH § 21-4.110(c) (5),? inasmuch as it did not intend to reduce its hours; (3) the circuit court erred by construing ROH $6 21- 4,120(¢) (2),* (c) (3),* and (c) (5) dn-pari materia and by ruling that the daytime operation of Michel’s violated ROH § 21- 4,110(c) (5) and (4) the circuit court erred by ruling that the daytime operation of Michel's increased its hours of operation + RoW § 21-4.110(c) (2) states in pertinent part, "A nonconforning lise shall not extend to any part of the structure or lot which was not arranged or designed for such use at the time of adoption of the provisions of this chapter or subsequent amendment; nor shall the nonconforming use be ‘expanded in any manner, or the hours of operation increases.” % Row § 21-4.110(c) (5) provides, “Any action taken by an owne: lessee, or authorized operator which reduces the negative effects associated with the operation of s nonconforming use =~ such aa, but not limited to, Teducing hours of operation of exterior Lighting intensity <= shell not be reversed.” ‘Row § 21-€.120(¢) (2) states, An pertinent part Any nonconforning use that is discontinued for any reason for" [thelve] ‘consecutive nonths, cr for [eighteen] fonths during any three-year period, shall not be resumed: however, a temporary cessation of the nonconforming use for porposes of ordinary repairs for a period not exceeding 120 Says during say [twelve)-nonth perios shall not be Considered « discontinuation. * Row § 21-4.110(¢) (3) provides, in pertinent part: ork may be done on any structure devoted in whole oF in part to any nonconforming use, provided that work oa the nonconforming use portion shall be limited to ordinary Fepairs, For purposes of this subsection, ordinary repairs Shall only be construed to ineluge the following May include work required to comply with federal Eandates such as, but not limited to, the Anericans with Disabilities Act (ADA) oF the National Environmental Protection Act (NEPA) (©) May include interior and exterior alterations, provided that there is no physical expansion of the Ronconferming use or intensification of the use 2  + FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, within the meaning of ROH § 21-4.110(e) (1). Based upon the following analysis, we reverse the circuit court's July 23, 2003 judgment. T. BACKGROUND CSL is the owner of Colony surf, a residential apartment building located at 2895 Kalakaua Avenue, Honolulu, Hawai'i. Colony Surf was originally constructed in 1959 and included a ground-floor restaurant as an accessory use. In 1961, CSL subleased the restaurant space to Colony Surf Development Corporation for the purpose of operating Michel's Restaurant ("Michel's"). At that time, Michel’s operated 365 days per year, from 6:30 a.m. to 2:00 a.m. In 1982, the area was rezoned A-2, which rendered the accessory restaurant use nonconforming. In October 1995, Michel’s was temporarily closed as a result of a mortgage foreclosure. D.G. Anderson (“Anderson”) emerged as the successful bidder at the ensuing foreclosure sale, held in January 1996. Immediately after purchasing the lease, Anderson sought to renovate Michel’s in two phases. Upon completion of the first phase of interior renovations in August 1996, Michel’s reopened, mainly operating from 4:30 p.m. to about 2:00 a.m. and offering Sunday brunch daytine services “for about a month.” From August 1996 until January 1998, limited daytime operation of Michel’s consisted of: (a) a regular Sunday brunch from Decenber 29, 1996 until June 15, 1997; (b) three lunch functions held on August 22, 1996, Novenber 22, 1996, and December 7, 19977 and (c) one breakfast function held on July 12, 1997. In January 1998, Michel’s began its  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER daytime operations from 7:00 a.m. to 4:30 p.m. to accommodate private functions, including weddings, on a periodic basis. After Colony Surf consented to ADA access compliance Amprovenents on September 23, 1998, Anderson conmenced construction of this second phase of renovations. Once the second phase renovations were completed in October 1998, Michel's entered into a $650,000 contract with Wedding Emporium to host wedding services and receptions inside of its restaurant. Michel's opened its dining room to regularly‘ host wedding ceremonies from 9:00 a.m. to 5:00 p.m. and receptions from 10:00 a.m, to 10:00 p.m. ‘The daytime wedding emporium use of Michel's resulted in “noise, traffic and congestion” in the residential neighborhood “which severely and negatively affect [ed] the neighborhood quality of life."* On December 3, 1998, CSL sent a ‘The frequency of wedding receptions at Michel per day to none during a week ranged from three > the restaurant was not open to the public during daytime hours but wes available to the public for dinner and private dinner parties. * csi complained that the wedding emporium is incompatible with the residential character of the neighborhood colony Surf has zero parking stalls for Michel"s ~ zero, none, not one. There is not even a leading zone for delivery trucks Deeger trucks can’t even turn around on the property. irucks making food deliveries to Michel's aust use the neighbor’ ¢ froperty cr back cut a twovnundred-foot long, twonty-food wide Griveway to Kalakaua Avenue. The trucks backing up fills the Fesidential neighborhood with the incessant beep-beep-beep of their reversing signals, "Now add to that problem @ series of thirty-foot Long limousines arriving at the sane tine (norning hours}, each with a bride and groom, an entourage of wedding attendants, photographers, anda driver. None of these wedding parties arrives ina taxi! There is no place to park the Tisousine so st alts clogging the driveway, The limousines can’t turn around, so they too mst back out {oF use the neighbor's property).  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTEI letter to the director of the Department of Planning and Permitting, State of Hawai'i (“director”) challenging Michel's use of the premises for weddings, receptions, and other private functions. By letter dated February 17, 1999, the director rejected CSL’s challenge, informing it that such uses were subsumed within the scope of restaurant uses. In a January 19, 2001 letter to the director, CSL questioned Michel's hours of operation under ROH $$ 21- 4.120(c) (1) and (5). By letter dated January 2, 2002, the director concluded that “the daytime operation of (Michel's) nonconforming use (an eating establishment with an accessory wedding chapel) is not in conflict with (ROH $$] 21-4.110(c) (1) and/or (5). B. Procedural History 1, Director declared that Michel's did not increase its. operating nours on March 1, 2002, CSL filed a petition for a Declaratory Ruling with the director alleging that Michel's reduced its hours of operation and subsequently “reversed the reduction in hours and began opening at about 9:00 a.m. for wedding functions” in violation of ROH §§ 21-4.110(c) (1) and (5). ‘The director concluded that: there was no action taken by the new owner of Michel"s to reduce the Inpact of the nonconforming eating establishment when daytime Services were not fully restored open assuming ownership. Andy therefore, there was no increase in operating hours ence the owner was finally able to resune full daytime services after renovations wore completed. * FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** 2. Zoning Board of Appeals affirmed the director's ruling On May 28, 2002, CSL appealed the director's ruling to the Zoning Board of Appeals ("ZBA”). CSL argued that Michel's violated ROH §§ 21-4.110(1), (2), and (5), inasmuch as: (1) its wedding operations constituted an expanded type of nonconforming use, (2) it resumed its daytime operation, and (3) it increased its operating hours of the nonconforming use. In its “Findings of Fact, Conclusions of Law, and Decision, and Order on Petitioner Appealing From Director’s Declaratory Ruling No. 2002/DEC~1," filed January 10, 2003, the ZBA affirmed the director's decision. 3, Circuit court reversed the ZBA's decision On February 7, 2003, CSL filed a notice of appeal in the circuit court. On July 23, 2003, the circuit court filed a judgment on appeal reversing the decision of the ZBA. In its findings of fact and conclusions of law, the circuit court found and concluded in pertinent part: 1. FINDms oF race 6. eeu te ‘son aggrieved” by the 20A Decision within tthe meaning of Haweli Revised Statutes ("HRS") 31-149). 7." The Court hereby incorporates by reference che Findings of Fact set forth in the Director's Ruling and the 2B Decsaion (2:00 a.m. (daytime seeearieny oat (tutes an “expanded 2 - SESS ss iste a eisiin the pean ef (eoal {6)_izhe S, ii daxbine operation of Michel's “increased” ite “hours of operation” sithin the neaaTae at Thon Teta eter 3 . amas an ‘Anderson's davtime operation of Michel's was an “action” by Anerson Wich reversed a reduction in “the neative ‘Sicects associaced with the operation of Michels witnia che ea aisle $** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER (Emphases: appeal. TT. CONCLUSIONS OF Law In determining whether the daytime operation of Michel's violates the (FOll), "strict Limits are placed upon Ronconforning uses to discourage the perpetuation of these us an thus facilitate the tinely conversion to conforming uses." (Row) (6) 21-4.110%} 5.) "A honconforming use shall not be expanded in any manner.” (ROR) {8} 21-4.110(c) (1) é, “the hours of operation of a nonconforming use shall not be increased. (ROH) {8} 21-110(c) (2) 4.125 The contrary conclusions set forth in the Director’ e Ruling and the Z8A Decision are in “vielation of constitutional or statutory provisions” within the meaning of ARS 91-1¢(9)(1)- 5.” P'the term “use” in’ [80H] (6] 21-4110(e) (2) (sie] refers to the Aonconforming use in the entirety, as opposed to daytime 20, The daytine use of Michel's does not violate (Rot) ($) 2a-a1i0(e) (2) Tate) - 21, Laws in'pari materia, or upon the same subject matter, shall be ‘construed with reference to each other. What is clear in one stetute may be called in aid to explain what se doubtful in fanether. Kan’. Woh, 770 P-2d 414 (Haw. 1969) 12, ““the subsections of (ROM) Sec. 71-4/110(c) are dn part materia. Kam ¥. "Noh, 170" P.24 414. (Haw. 1983) | 13. o wien S Peicular with the tine Disabilities ac = way of (80H SLC U0, the davtine operation of Michel's violates BOW 1s) 2i-C ties Te. The contrary conclusions set forth in the Director's Ruling and the Z6A decision are in “violation of constitutional oF statutory provisions” within the meaning of HRS (§] 91-14(g) (1) added.) on August 22, 2003, Appellants filed a timely notice of XI. STANDARDS OF REVIEW A. Secondary Appeal Review of a decision made by the cizcuit court upon its review of an agency's decision ta a secondary appeal. The Standard of review i one in which this court most determine whether the circuit court was right or wrong in ite decision, Spplying the standards set forth in HRS § 91-14(g) (1993) te the agency's decision. 1+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** v. Zonin and County of Honolulu, 114 Hawai'i 184, 193, 159 P.3d 143, 153 (2007) (citing Korean Buddhist Dae Won Sa Temple of Hawai'i v Sullivan, 87 Hawai'i 217, 229, 953 P.2d 1315, 1327 (1998). HRS § 91-14, “Judicial review of contested cases,” provides in pertinent par (g) Upon review of the record the court may affirm the decision of the agency or renand the case with instructions for further proceedings; of it may reverse or nodity the decision and order if fhe substantisl rights of the petitioners nay have been prejudiced Decause the administrative findings, conclusions, decisions, oF (2) In violation of constitutional or statutory provisions: of (2) In excess of the statutory authority or jurisdiction of the agency: oF (3) Made pon unlawful procedure; oF (4) Affected by other error of Law or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; oF (6) Arbitrary, or capricious, or characterized by abuse of Giscretion or clearly unwarranted exercise of digcretion. Interpretation of Administrative Rule! When interpreting municipal ordinances, we epply the sane rules of construction that we spply to statutes. ‘while an Adainistraive agency's interpretation of the ordinance that it is Fesponsible for implenenting is normally accorded grest weight, no Geforence is required when the agency's interpretation conflicts with or contragicts che manifest purpose of the ordinance it secks fo implement City and County of Honolulu v. Hsiung, 109 Hawai'i 159, 172, 124 P.3d 434, 447 (2005). III, DISCUSSION A, ‘The Issue That the Daytime Operation of Michel's Constitutes an “Expanded” Nonconforming Use Under ROH § 21-4,110(c) (1) Was Not Properly Before the Circuit Court Appellants’ first point of error asserts that the  +++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, circuit court erred by ruling that the “operation of Michel's prior to 4:30 p.m. and after 2:00 a.m. (‘daytime operation’) constitutes an ‘expanded’ nonconforming use of Michel’s within the meaning of [ROH §] 21-4.110(c) (1).” Although framed as a challenge on the merits, Appellants actually argue that the circuit court “exceeded its jurisdiction in ruling that the daytime operation of Michel’s” “expanded” the nonconforming use, insofar as CSL “challenged the daytime hours of operation under [ROH] $§ 21-4.110(c) (1) and (5), and not the use of Michel's for wedding functions” in its petition to the director. Thus, according to Appellants, the director and the 2BA did not rule on the issue, and it vas therefore not a matter properly before the circuit court. Although CSL petitioned the director regarding the “daytime operation” of Michels violating ROH § 21-4.110(e) (1), it did not contend that Michel’s expanded the type of nonconforming use, but merely argued that the increase in operating hours of Michel's violated ROH § 21-4.110(c) (1).? CSL. presented case law and legal arguments in support of its sole position that “Michel's is a nonconforming use, which reduced its hours of operation and then reversed the reduction and expanded ts hours of operation in violation of [ROH $§ 21-4.110(c) (1) and (5)1." (Emphasis added.) ‘Thus, the director properly limited his review of the petition to whether Michel's was precluded from + cst explained that the petition followed the director’s determination that “the daxtime operation of the... nonconforming use (an esting establishment with an accessory wedding chapel) is not in conflict with [ROK ),21-4.110(e) (1) and/or (8]," But dig net reassert thet the daytine operation conflicts with NOH § 21°4.110(c) (2) in the petition itself, 9  ‘+ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER increasing its hours of operation pursuant to ROH §§ 21- 4.110(c) (1) and (5). Because the director ruled that Michel's did not increase its hours of operation in violation of ROH § 21- 4.110(c) (1), the 2BA’s ruling regarding whether Michel’s complied with ROH § 21-4.110(c) (1) was limited to this matter. See Revised Charter of Honolulu § 6-1516 (2001) (providing that the ZBA shall “hear and determine appeals from the actions of the director”). Inasmuch as the 2BA did not rule on whether the type of daytime operation itself (a wedding business) constituted an “expansion” of the nonconforming use, the matter was not properly before the circuit court, and the circuit court’s finding that the daytime operation violates ROH § 21-4.110(c) (1) should be reversed. See Hoh Corp, v, Motor Vehicle Indus, Licensing Bd. Dep't of Commerce ¢ Consumer Affairs, 69 Haw. 135, 141, 736 P.2d 1271, 1275 (1987) (*[JJudicial review of an agency determination must be ‘confined to issues properly raised in the record of the administrative proceedings below.’”); Aetna Life Ins, Co. vs Bark, 5 Haw. App. 115, 119, 678 P.2d 1101, 1104 (1984) ("It is explicit in the provisions of HRS § 91-14, and in the case law interpreting those provisions, that a review of the Commissioner's decision is confined to the issues properly raised in the record of the proceedings leading up to that decision. 10  "ATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, B. Anderson Did Not Take An “Action” That Reduced the Negative Effects of the Nonconforming Use Pursuant to ROH §§ 21- 4.110(c) (2), (3) and (5), Inasmuch As The Nineteen Month Cessation of Daytime Operation Was Within the Permissible Discontinuation of the Nonconforming Use, and Therefore, He Zs Not Precluded From Resuming the Daytime Operating Hours of Michel’ s Under ROH § 21-4.110(c) (5) In their second point of error, Appellants argue that the circuit court erred by (1) ruling that the resumption of the daytime nonconforming use following its temporary cessation for nineteen months constituted an “action . . . which reduces the negative effects associated with the nonconforming use” within the meaning of ROH § 21-4,110(c) (5); (2) construing ROH § 21~ 4.110(c) (5) in pari materia with ROH §§ 21-4,110(c} (2) and (3); and (3) concluding that ROH § 21~ the daytime operation of Michel’s, inasmuch as the owner of -110(c) (5) precludes renewal of Michel’s did not intend to reduce the hours of Michel's, and therefore, could not have later increased the negative effects of the daytime nonconforming use. 1. Action” under ROH § 21-4.110(c)(5) does not require he_intent_to permanently reduce the negative effects of the nonconforming use ROH § 21-4.110(c) (5) provides, “Any action taken by an owner, lessee, or authorized operator which reduces the negative effects associated with the operation of a nonconforming use -- such as, but not limited to, reducing hours of operation or exterior lighting intensity -- shall not be reversed.” In determining whether “action” under ROH § 21-4.110(c) (5) requires the intent to permanently reduce the negative effects of the nonconforming use, we are guided by established principles of statutory interpretation. un  FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, linen construing a statute, our forenost obligation is to ascertain and give effect to the intention of the legislature, which is te bbe obtained primarily trom the language contained in the statute itself. And we mist read statutory language in the context of the entire statute and construe it ina manner consistent with ie purpose’ hen there is doubt, doubleness of meaning, oF indistinctiveness or uncertainty of an expression used in @ statute, an ambiguity exist In construing an ambiguous statute, “{t}he mesning of the anbiquous words may be souaht by examining the context, mith which tthe ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) (1993) Gray v, Admin, Dir. of the Court, 84 Hawai'i 138, 148, 931 P.2d 580, 590 (1997) (some citations omitted). “Furthermore, the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality.” Id. (relying on HRS § 1-15(3) (1993) ("Every construction which leads to an absurdity shall be rejected.”)). Clearly, the “action . . . which reduces the negative effects associated with the operation of a nonconforming use” must be “voluntary” or “intentional” in order to preclude the owner, lessee, or authorized operator from later increasing the negative effects. ROH § 21-4.110(c) (5). See Black's Lay Dictionary 26, 1605 (8th ed. 2004) (defining “act” “{slomething done or performed, (especially) voluntarily, and “voluntary” as “done by design or intention”). However, the Appellants’ interpretation that the ordinance requires a voluntary “action” as well as an action with the intention of permanently reducing the negative effects is an additional element that is not supported by the ordinance’s plain language. Under a strict interpretation of ROH § 21-4.110(c) (5), once an 2 +++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** waction . . . which reduces the negative effects associated with the operation of a nonconforming use” is taken, the action may not be reversed, See Waikiki Marketplace Inv, Co, v. Chair of Zoning Bd. of Appeals, 86 Hawai'i 343, 354, 949 P.2d 183, 194 (App. 1997) ("[ZJoning laws and ordinances are strictly construed, ‘as they are in derogation of the common law, and their provisions may not be extended by implication." (citing Foster Village Community Ass'n v. Hess, 4 Haw. App. 463, 469, 667 P.2d 850, 854 (1983))). Inder the in pari materia doctrine, ROH $$ 21- eotjoier (2) and) clarify ROWS 21-4, 11076115 However, inasmuch as “we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose,” the construction of ROH § 21- 4.210(c) (5) is not complete. Gray, 84 Hawai'i at 148, 931 P.2d at 590 (citation and emphasis omitted). ROH $§ 21-4.110(c) (2), (3), and (5) relate to the subject matter of nonconforming uses. ROH § 21-4.110(c) (2) permits the cessation of a nonconforming use based on the purpose and period of time of the discontinued use, as follows: Any nonconforming use that is discontinued for any reason for (twelve) consecutive months, or for [eighteen] months during any a temporary ‘of ordinary jeriog not exceeding 120 Gays during any [twelve]- 1 not be considered @ discontinuation. repairs for snonth period ROH § 21-4.110(c) (3) permits “ordinary repairs,” including “interior and exterior alterations,” to be done on any structure with a nonconforming use so long as the nonconforming use is not expanded. As construed above, ROH §21-4.110(c) (5) prohibits an 13  ++ FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, “action . . . which reduces the negative effects associated with the operation of a nonconforming use” from being reversed. AS this court has stated, however, “where the statutes simply overlap in their application, effect will be given to both if possible, as repeal by implication is disfavored.” Enoka v. AIG Hawai'i Ins. Co., Inc., 109 Hawai'i 537, 560, 128 P.3d 850, 873 (2006) (quoting Richardson v. City 6 County of Honolulu, 76 Hawai'i 46, 54-55, 868 P.2d 1193, 1201-02 (1994) (brackets omitted)). Therefore, in order to apply ROH $§ 21-4.110(2) (3), and (5), these subsections must be construed materia, inasmuch as they pertain to the same purpose and subject matter. Appellants argue that the circuit court erred by construing ROH $$ 21-4.110(c) (2), (3), and (5) in pari materia because it invoked this doctrine sua sponte and these subsections pertain to different purposes and were enacted at different times. HRS $ 1-16 (1993) (“Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other.”). However, these subsections have the same purpose: “Strict limits are placed on nonconforming uses to discourage the perpetuation of these uses, and thus facilitate the timely conversion to conforming uses.” ROH § 21-4.110(c). Moreover, Appellants admit that ROH §§ 21-4,110(c) (2) and (5) relate to the same subject matter, which is exactly what requires a court to invoke the in pari materia doctrine. HRS § 1-16. Accordingly, 53 P.3d 214, 235 mnting) (stating that “[s}tatutes are considered to be to the sane person or thing, to the same Wve the sane purpose or object”) class of persons or things, 14  FOR PUBLICATION IN WEST'S HAWAH REPORTS AND PACIFIC REPORTER. ROH §§ 21-4.110(c) (2), (3), and (5) must be construed in reference to each other, and the circuit court did net err by doing so. Under the in pari materia doctrine, ROH §§ 21- 4.110(e) (2) and (3) clarity ROH § 21-4.110(c) (5), which does not specify any period of time or manner in which the reconmencenent of the nonconforming use is permissible. ROH § 21-4.110(c) (2), which protects the temporary cessation of nonconforming use, explains which of ROH § 21-4,110(c) (5) “actions . . . which reduce the negative effects associated with the operation of a nonconforming use” may be taken without jeopardizing the right to resume the operation of the nonconforming use. Further, ROH § 21-4.110(c) (3) provides that work on @ nonconforming use may be performed for purposes of “ordinary repairs,” which includes ‘work required to comply with federal mandates such as, but not Limited to, the (ADA],” and interior and exterior alterations that do not physically expand the “nonconforming use or intensification of use." ROH $§ 21-4110(c) (3) and (5). Hence, a nonconforming use may be temporarily discontinued (and thereby is an “action” which reduces the negative effects) for (1) less than twelve consecutive months for any purpose plus 120 days for ordinary repairs during any twelve month period or (2) for less than eighteen months during any three-year period for any purpose plus 120 days for ordinary repairs during any twelve month period, and then resumed. ROH §§ 21-4.110(c) (2) and (5). This construction provides clarity and exactness to ROH § 21-4.110(c) (5), and moreover, it promotes the purpose of the ordinance, to “discourage the perpetuation” of as *** FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER **+ nonconforming uses. ROH § 21-4.110(c). 3 davrine cnecetior op manet san month a scutes a the: Eton neon! use, Under the foregoing interpretation of ROH § 21- 4,110(c) (5), the January 1998 “daytime operation” of Michel's, which Increased its hours of operation of Michel's since its cessation in October 1995, is not an “action” in violation of ROH § 21-4,110(c) (5), because Appellants discontinued these hours and reduced the negative effects within the permissible Siscontinuation of nonconforming use period. Since its closure in October 1995 until January 1998, the regular daytime operation’! of Michel’s consisted of: (1) a Sunday brunch in August 1996 “for about a month,” (2) a Sunday brunch from December 29, 1996 to June 15, 1997, and (3) 7:00 a.m. to 0 p.m. hours of operation beginning January 1996. Thus, the daytime operation of Michel's was temporarily ceased for ten months from October 1995 until August 1996, three months from Septenber 1996 until December 1996, and 2ix months from June 1997 until January 1998, for a total of nineteen months over a twenty- six month period. However, between March 1996 and August 1996, Michel's [Although Michel's held two special lunch functions in fal) 1996 and a breakfast and Lunch function in 1997, they were #0 infrequent that they fare not relevant in determining the regular daytine operation cf Michel's y 325-A.26 654, 658 (Fa. 1974) ("after a Cessation of activity Dy an owner, nowever, a more casual, occesional and infrequent return to the original activity is not sufficient te continue oF Fenew a prior nonconforming use, nor can & new, separate, and distinct enterprise gain the protection of the nonconforming use." (citing fH, Mifflin wa toning Wearing Bil, 20¢A.24 320 (Pe. 1971))) 16  ‘OR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER, was closed because of “extensive interior renovations,” or Yordinary repairs.” As construed supra, an owner, lessee, or authorized operator has 120 days to make “ordinary repairs,” which aze net counted as part of the permissible temporary cessation of the nonconforming use. ROH § 21-4.110(c) (5). Because the nineteen month discontinuation of the daytime operation of the nonconforming use included 120 days in which the owner of Michel’s nade “ordinary repairs,” the daytime cessation of Michel's was within the permissible temporary discontinuation period of: (1) twelve consecutive months for any purpose and 120 days for ordinary repairs, and (2) eighteen months in a three year period for any purpose and 120 days for ordinary repairs. Therefore, Michel's is not precluded from resuming its daytime operations under ROH § 21-4,110(c) (5). We reverse the circuit court’s rulings that: (1) Anderson's daytime hours of operation of Michel’s was an “‘action’ by Anderson which reversed a reduction in ‘the negative effects associated with the operation’ of Michel’s within the meaning of [ROH § 21-4.110(c) (5),” and (2) “the daytime operation of Michel's violates ROH [$] 21- 4.110(¢) (5). ¢. The Circuit Court Erred By Concluding That The Daytime Operation of Michel's Violates ROH § 21-4.110(c) (1) In their third point of error, Appellants assert that the circuit court erred by ruling that the “daytime operation of Michel's violates ROH § 21-4.110(c)(1)." As stated supra, there was no decrease in operating hours under ROH § 21-4.110(c) (5) and thus, Appellants correctly assert that there was no increase in operating hours in violation of ROH § 21-4.110(c) (1). Therefore, uv  + FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER *** we reverse the circuit court’s conclusion that “[t]he daytime operation of Michel's violates (ROH $] 21-4.110(c) (1).” IV. CONCLUSION Based upon the foregoing analysis, we hold that: (1) the issue as to whether the operation of Michel’s as a different type of use constitutes an “expanded” nonconforming use within the meaning of ROH § 21-4.110(c)(1), was not properly before the circuit court, inasmuch as (a) CSL argued before the director that Michel's violated ROH § 21-4.110(c) (1) by increasing its hours of operation, (b) the director limited his review of the petition to whether Michel’s was precluded from increasing its hours of operation pursuant to ROH § 21-4.110(c) (1), and (ec) the 2BA was limited to rendering a decision regarding the additional hours of operation of Michel's; (2) ROH $$ 21-4.120(c) (2), (3), and (5), which have the same purpose, subject matter, and clarity what constitute permissible “actions” which reduce the negative effects associated with nonconforming uses, must be construed in parimaterias (3) Under ROH § 21-4.110(c) (5), a nonconforming use may be temporarily discontinued (constituting an “action” which reduces the negative effects) for (a) less than twelve consecutive months for any purpose plus 120 days for ordinary repairs during any twelve-nonth period or (b) for less than eighteen months during any three-year period for any purpose plus 120 days for ordinary repairs during any twelve month period, and then resumed; (4) the January 1996 “daytime operation” of Michel's, which increased the hours of operation of Michel's after temporarily discontinuing its daytime operation of the nonconforming use for nineteen months, including 120 days for 18  FOR PUBLICATION IN WES’ HAWAI REPORTS AND PACIFIC REPORTER * “ordinary repairs,” was permissible because the discontinuation was within the permissible temporary cessation period of: (1) twelve consecutive months for any purpose plus 120 days for ordinary repairs, and (2) eighteen months in a three year period for any purpose plus 120 days for ordinary repaire; and (5) the daytime operation of Michel’s does not violate ROH § 21- 4,110(c) (1), inasmuch as it did not “decrease” ite operating hours under ROH § 21-4.110(c} (5) and therefore, did not “increase” its operating hours in violation of ROH § 21- 4.2206) (2). Accordingly, we reverse the circuit court’s July 23, 2003 judgment. On the briefs: of Planning and Permitting A and Donna Y.L. Leong, and ae Kaiulani £.S. Kidani of Cades Vanes Cede 4 06 Schutte LLP, for Defendants/ Appellees-Appellants Michel’ s Inc. and D.G, Anderson Bruce L. Lamon of Goodsill Grnere. Duly Ore Andersch Quinn ¢ Stitfel, for Plaintiff /Appellant~Appellee 19 

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