Hawaii Appellate Opinions

STATE OF HAWAI'I v. SCHAEFER

Nos. 26916, 26917 (Apr. 30, 2008)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

In these consolidated appeals from judgments entered by the District Court of the Fifth Circuit (the district court) on October 1, 2004, Defendants-Appellants April Esther Schaefer (April), also known as April Ester Paiva, and Steven Schaefer (Steven) (collectively, Appellants) challenge, on several grounds, the sentences imposed against them following their convictions for nineteen misdemeanor offenses.

Since the record indicates that the district court failed to personally afford Steven and April an opportunity to make a statement prior to sentencing, we vacate their respective sentences and remand for resentencing before a different judge. We further instruct that on remand, the district court shall determine whether the pre-sentence investigation report (PSI) prepared for Steven and April, respectively, complied with the plea agreement that each entered into with Plaintiff-Appellee State of Hawai‘i (the State). If the district court determines that the plea agreement was materially breached, the district court shall determine the appropriate remedy for the breach. Our disposition of this appeal renders it unnecessary to address the remaining points raised on appeal by Appellants. [footnote omitted]

JOU v. SCHMIDT

No 27369 (April 29, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

In this secondary appeal, Provider-Appellant Emerson M.F. Jou, M.D. (Jou) appeals from the Judgment filed in the Circuit Court of the First Circuit (Circuit Court) on May 23, 2005 (Judgment).  The Circuit Court ruled in favor of Insurance Commissioner J.P. Schmidt (Commissioner Schmidt), Department of Commerce and Consumer Affairs of the State of Hawai'i (DCCA), and Island Insurance Company, Ltd. (Island), affirming Commissioner Schmidt's Final Order Following remand, which was filed on May 26, 2004.  Jou filed a timely notice of appeal on June 21, 2005.

On appeal, Jou argues, inter alia, that the Circuit Court erred in: (1) denying his request that the presiding judge be disqualified based on the composition of the Hawai'i Judicial Selection Commission (JSC), which included an Island employee; (2) finding that the written notice of denial of benefits mandated by Hawaii Revised Statutes (HRS) § 431:10C-304(3)(B) is inapplicable to billing disputes, as opposed to treatment disputes; and (3) finding that the payment of interest mandated by HRS § 431:10C-304(4) is inapplicable when a payment is delayed in conjunction with a billing dispute.  For the reasons discussed herein, we hold: (1) Jou failed to submit a disqualifying affidavit satisfying the statutory requirements of HRS § 601-7 and, inlight of the rules governing the conduct of the JSC, there is no appearance of impropriety requiring the disqualification of the presiding judge in this case; (2) notice of denial was required; and (3) interest was due to Jou in this case. [footnote omitted]

GILLIAN v. GOVERNMENT EMPLOYEES INSURANCE COMPANY

No. 28075 (April 17, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

Defendant-Appellant Government Employees Insurance Company (GEICO) appeals from the Amended Partial Judgment filed on July 17, 2006 in the Circuit Court of the First Circuit (circuit court).  The circuit court entered judgment against GEICO and in favor of Plaintiffs-Appellees Margret Gillian (Gillan) and Howard Keller, M.D. (Dr. Keller) (hereinafter collectively referred to as Plaintiffs) on Plaintiffs' claim that GEICO violated Hawaii Revised Statutes (HRS) §  431:10C-308.5 (2005 Repl.) by basing its denial of Gillian's claim for Personal Injury Protection (PIP) benefits on the opinion of a doctor whom GEICO had chosen, without Gillian's approval, to review Gillian's medical records.

On appeal, GEICO contends the circuit court erred by granting partial judgment against GEICO and in favor of Plaintiffs because the judgment was based on erroneous interpretation of HRS §  431:10C-308.5(b).

. . . .

The Amended Partial Judgment filed on July 17, 2006 in the Circuit Court of the First Circuit is vacated and this case is remanded for further proceedings. [footnotes omitted]

HAWAII INSURERS COUNCIL v. LINGLE

No. 27840 (April 14, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

Defendants-Appellants Linda Lingle, Governor of the State of Hawai'i; Georgina K. Kawamura, Director of Finance, Department of Budget and Finance; Lawrence M. Reifurth, Director of the Department of Commerce and Consumer Affairs (DCCA); and J.P. Schmidt, Insurance Commissioner, Insurance Division of the DCCA (collectively referred to as "the State") appeal from the Final Judgment entered on February 27, 2006 in the Circuit Court of the First Circuit (circuit court).

On appeal, the State argues that the circuit court erred

(1)  in ruling that, under State v. Medeiros, 89 Hawai'i 361, 973 P.2d 736 (1999), the assessments were taxes rather than regulatory fees;

(2)  in ruling that the assessments violated the Due Process Clauses of the United States and Hawai'i Constitutions;

(3)  in ruling that the assessments violated separation of powers;

(4)  in ruling that the assessments violated the Equal Protection Clauses of the United States and Hawai'i Constitutions;

(5)  in ruling that the assessments violated Hawaii Revised Statutes (HRS) § 431:7-204 (2005 Repl.);

(6)  in granting the request of Plaintiff-Appellant Hawaii Insurers Council (HIC) for injunctive relief;

(7)  in granting HIC an accounting;

(8)  in rejecting the State's defense that HIC failed to exhause its administrative remedies; and

(9)  in rejecting the State's defense that HIC cannot pursue a declaratory action involving a tax matter.

. . . .

Based on the foregoing, we affirm the Final Judgment filed on February 27, 2006 in the Circuit Court of the First Circuit. [footnotes omitted]

Concurring opinion by Watanabe, J. [pdf]

BALDONADO v. THE WAY OF SALVATION CHURCH

No 27169 (April 10, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

In this consolidated appeal from the Circuit Court of the First Circuit, Plaintiffs-Appellants Herminia Baldonado, . . . (collectively Appellants) appeal from

(1)  the Final Judgment as to All Claims Between All Parties filed on February 7, 2005 (No. 27169), in which the circuit court granted the January 26, 2004 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (Motion to Dismiss) filed by Defendant-Appellee The Way of Salvation Church (the Church) as to all of Appellants' claims in the Amended Verified Complaint; and

(2)  the Final Judgment as to All Claims Between All Parties filed on April 20, 2005 (No. 27298), in which the circuit court denied Appellants' motion for reconsideration of the court's grant of the Church's Motion to Dismiss.

On appeal, Appellants argue the following points of error:

(1)  To the extent the circuit court ruled that Appellants lacked standing because Appellants had been expelled from the Church, no matter how unfair the expulsion process was, the court erred as a matter of law.

(2)  To the extent the circuit court ruled, under Hawai'i Rules of Civil Procedure (HRCP) Rule 12(b)(1), that Appellants had been property expelled from the Church, the court erred.

(3)  To the extent the circuit court dismissed the case or granted summary judgment in implied reliance on the "ecclesiastical abstention doctrine," the court erred as a matter of law.

(4)  The circuit court should have granted Appellants' motion to amend their complaint a second time to state new claims based on Appellants' illegal "expulsion" from the Church and to add updated claims as to the Church's financial management.

For the reasons stated below, we vacate the February 7 and April 20, 2005 final judgments entered by the circuit court. [footnote omitted]

STATE OF HAWAI'I v. JESS

No. 28483 (March 31, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On October 6, 2004, the defendant-appellee Brian Jess filed a 28 U.S.C. § 2254 (1996) petition for a writ of habeas corpus in the United States District Court for the District of Hawai'i.  In his petition, Jess alleged that the extended term sentence that the circuit court of the first circuit, the Honorable Victoria S. Marks presiding, imposed upon him on May 7, 2001, pursuant to Hawai'i Revised Statutes (HRS) §§ 706-661  (Supp. 1999), 706-662(1), 706-662(4)(a) (Supp. 1996), and 706-664 (1993) was, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, in violation of his right to a jury trial as provided by the sixth amendment to the United States Constitution.  See Jess v. Peyton, No. Civ. 04-00601 JMS/BMK, 2007 WL 1041737, at *1-*2 (D. Haw. April 18, 2006) (Jess II). On April 18, 2006, the United States District Court granted Jess' petition, concluding that the finding made by the circuit court, i.e., that an extended term was necessary for the protection of the public [hereinafter, "the necessity finding"], violated his sixth amendment right to a trial by jury as articulated in  Apprendi.  Id. at *4.  The district court ordered the circuit court to resentence Jess in a manner consistent with that conclusion.  Id. at *6.  The reserved question before this court stems, ultimately, from that order, and reads as follows:

May the trial court, as part of a sentencing proceeding brought pursuant to Section 706-662(1) & (4), H.R.S., empanel a jury to make a factual finding to determine whether the prosecution has proven beyond a reasonable doubt that the defendant's commitment for an extended term of incarceration is necessary for the protection of the public?

The issue raised by the reserved question was addressed in part in our recent decision in State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2007), [hereinafter "Maugaotega II"].  Based upon Magaotega II and the analysis infra, we answer the reserved question as follows:

Although the two-count complaint filed by the prosecution on March 2, 2000 against the defendant-appellee Brian Jess did not charge the "aggravated crimes" described in HRS § 706-662, see Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856, 864 (2007), the circuit court nevertheless has authority to impose extended terms of imprisonment upon Jess pursuant to the provisions  of HRS § 706-662, because our decision to require the allegation of aggravating extrinsic facts in a charging instrument applies prospectively only.  Furthermore, insofar as the circuit court possesses the inherent judicial authority "to provide process where none exists," State v. Moriwake, 65 Haw. 47, 55, 647 P.2d 705, 711012 (1982), and the legislature, by amending Hawaii's extended term sentencing laws to include jury fact-finding, has clearly expressed its approval of a jury system for making the required findings in order to bring the extended sentencing procedures into compliance with Cunningham, the circuit court would act within its discretion if, pursuant to HRS §§ 706-662(1) and 706-662(4) (Supp. 1996), it empaneled a jury to make a factual finding as to whether the prosecution has proved beyond a reasonable doubt that a defendant's commitment for an extended term or terms of imprisonment is necessary for the protection of the public.  Finally, in light of the plain language of Act 1, see supra notes 306, and the remedial nature of its amendments, the circuit court can also empanel a jury to make the same factual finding with respect to a defendant pursuant to HRS §§ 706-662, as amended by Act. 1.

[footnotes omitted]

Concurring and dissenting opinion by Nakayama, J. [pdf]; dissenting opinion by Acoba, J. [pdf]

BISCHOFF v. COOK

No. 26660 (March 31, 2008)

Opinion [pdf]

OPINION OF THE COURT BY FUJISE, J.

Plaintiff-Appellant David Bischoff (Bischoff) appeals from the final judgment entered June 1, 2004, in the Circuit Court of the Third Circuit (circuit court).  Final judgment was entered pursuant to the March 29, 2004 Findings of Fact, Conclusions of Law and Order (Order) entered in favor of Defendant-Appellee Kimi Cook, formerly known as Kimi Cook-McKie (Cook), following a bench trial.

. . . .

Bischoff raises six points of error.

. . . .

Based on the above analysis, the Circuit Court of the Third Circuit's June 1, 2004 judgment is vacated and the matter is remanded for proceedings consistent with this opinion.

PEROUTKA v. CRONIN

No. 27233 (March 27, 2008)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Appellants Michael A. Peroutka, Chuck Baldwin ("Peroutka/Baldwin"), David P. Porter ("Porter"), and Ralph Nader, Peter Miguel Camejo ("Nader/Camejo"), and Robert H. Stiver ("Stiver") (collectively, "Appellants"), appeal from the first circuit court's April 5, 2005 final judgments in favor of Appellee, Kevin B. Cronin ("Chief Election Officer").  The instant case is a consolidated secondary appeal from the circuit court's April 5, 2005 judgments affirming the decisions of the Chief Elections Officer.  On appeal, Appellants present the following points of error: (1) the circuit court erred in determining that the procedures used in verifying signatures on Appellants nomination petitions are not unconstitutional; (2) the circuit court erred in determining that the review of Appellants' petitions by the Chief Elections Officer was not arbitrary or capricious; and (3) the circuit court erred in determining that Appellants were provided a fair administrative hearing.  For the reasons that follow, we affirm the circuit court's April 4, 2005 final judgments. [footnote omitted]

KAHO'OHANOHANO v. DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAII

No. 28324 (March 20, 2008)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

Following a sixteen-day bench trial, defendants-appellants Department of Human Services (DHS) and State of Hawai'i (State) [hereinafter, collectively, DHS or the State] appeal from the Circuit Court of the Second Circuit's January 22, 2007 second amended judgment, entered in favor of plaintiff-appellees George Kaho'ohanohano (George), as next friend of his minor granddaughter, Dasia Marie Morales-Kaho'ohanohano (Minor), and Jarrett K. Kaho'ohanohano (Jarrett), individually as Minor's natural father, [hereinafter, collectively, the Kaho'ohanhanos] in this negligence action, awarding them $243,071.39 in special damages, $800,000.00 in general damages, and $77,369.80 in costs, for a total of $1,120,441.10.  Upon application by the Kaho'ohanohanos, the case was transferred to this court, pursuant to Hawai'i Revised Statutes (HRS) § 602-58(b)(1) (Supp. 2007) (governing transfer upon the ground that the case involves "question of first impression or a novel legal question"), on November 15, 2007.  Oral argument was held on February 21, 2008.

Briefly stated, two-and-a-half year old Minor suffered a fracture of the left femur on February 14, 2001 and life-threatening abdominal injuries two months later on April 16, 2001.  Both injuries allegedly occurred while Minor was in the care and physical custody of her natural mother, defendant Denise Morales (Denise), and Denise's then-boyfriend, defendant Daryl Ramos (Daryl).  Denise and Jarrett shared joint physical custody of Minor, who stayed with each parent on a rotating weekly basis.  Although the first injury was reported to DHS as a suspected child abuse case, DHS allowed Denise to continue her joint custody arrangement with Jarrett while DHS investigated the circumstances of Minor's injury.  DHS had yet to complete its investigation when the second injury occurred, which was determined to have resulted from child abuse.  Ultimately, Jarrett obtained sole legal and physical custody of Minor.

. . .

After a lengthy bench trial, the trial court found in favor of the Kaho'ohanohanos . . . The trial court also found DHS liable for damages resulting from the negligent infliction of emotional distress (NIED). 

. . . .

For the reasons more fully discussed infra, we affirm the trial court's January 22, 2007 second amended judgment.  [footnotes omitted]

Concurring opinion by Levinson, J. [pdf]; concurring opinion by Acoba, J. [pdf]

SMALLWOOD v. CITY AND COUNTY OF HONOLULU

No. 27875 (March 14, 2008)

Opinion [pdf]

OPINION OF THE COURT BY LEONARD, J.

Plaintiff-Appellant Craig Smallwood (Smallwood) appeals from a Judgment filed on February 25, 2005 in the Circuit Court of the First Circuit (Circuit Court) in Civil No. 04-1-2315-12.  The Circuit Court entered Judgment in favor of Defendant-Appellee City and County of Honolulu (City) upon the Circuit Court's February 23, 2005 Order Granting City's Motion to Dismiss Smallwood's Complaint (Order Granting Dismissal).  The Circuit Court based its dismissal of the Complaint on two findings: (1) that the claims set forth in the Complaint were previously adjudicated in Smallwood v. City, Civil No. 04-1-0974-05 (Prior Litigation) and, therefore, the Complaint constituted an impermissible "collateral attack" on the prior judgment; and (2) that the Circuit Court lacked subject matter jurisdiction over certain claims set forth in the Complaint because Smallwood failed to exhaust his administrative remedies as to those claims.

On appeal, Smallwood argues that the Circuit Court erred in finding that the Complaint constituted a collateral attack on the judgment in the Prior Litigation.  Smallwood does not challenge on appeal the Circuit Court's second finding that it lacked jurisdiction over certain claim in the Complaint based on Smallwood's failure to exhaust administrative remedies.

The judgment in the Prior Litigation: (1) dismissed without prejudice a prior complaint by Smallwood against City; and (2) dismissed with prejudice certain claims for injunctive relief that were actually adjudicated on the merits in that case.  Smallwood's Complaint herein does not seek to indirectly set aside, invalidate, avoid, or impeach the judgment in the Prior Litigation through an independent action seeking an alternative form of relief or result.  Therefore, we hold that the filing of the Complaint did not constitute an impermissible collateral attack on the prior judgment.  The Circuit Court's ruling that it lacked subject matter jurisdiction over certain of Smallwood's claims was not an adjudication on the merits and, accordingly, the Circuit Court's dismissal with prejudice must have been based on the erroneous application of the collateral attack doctrine.  We vacate the Judgment and Order Granting Dismissal and remand for further proceedings not inconsistent with this opinion. [footnote omitted]