Hawaii Appellate Opinions

TANAKA v. STATE OF HAWAI'I, DEPARTMENT OF LAND AND NATURAL RESOURCES

December 31, 2007 (No. 27487)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

This appeal stems from two consolidated cases for declaratory and injunctive relief, challenging the following actions by Defendants-Appellees State of Hawai'i (the State) and Department of Land and Natural Resources, State of Hawai'i (DLNR or the department) (collectively, State Defendants) as being in violation of Hawaii Revised Statutes (HRS) chapter 91 (1993 & Supp. 2006), the Hawaii Administrative Procedure Act (HAPA): (1) allowing game-bird hunting in the County of Hawai'i on Wednesdays and Thursdays, (2) requiring hunters to purchase a wildlife-conservation stamp and bird-hunting stamp before they can obtain a license to hunt for birds, and (3) allowing black-powder hunting in areas restrict to archery hunting by DLNR rules.

. . .

We conclude that DLNR exceeded its authority when it allowed game-bird hunting on Wednesdays and Thursdays and exacted fees for the wildlife-conservation and bird-hunting stamps (the stamp fees) without going through the rulemaking procedures set forth in HRS chapter 91.  Accordingly, we reverse the circuit court's judgment as to claims 1 and 2. [footnote omitted]

STATE OF HAWAI'I v. WHITAKER

December 31, 2007 (No. 26777)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, PRESIDING J.

As a result of a claim made by Defendant-Appellant Hiram Whitaker (Whitaker) to AIG Hawai'i Insurance Company, Inc. (AIG), his automobile insurance carrier, in which he sought insurance benefits for vandalism damages to his car, Whitaker was indicted, convicted, and sentenced for Insurance Fraud in violation of Hawaii Revised Statutes (HRS) § 431:10C-307.7(a)(1) and (b)(2) (2005), and Attempted Theft in the Second Degree (Attempted Theft 2) in violation of HRS § 708-831(1)(b) (Supp. 2000) and HRS § 705-500 (1993). 

Whitaker now appeals from the judgment entered by the Circuit Court of the First Circuit (the circuit court) on July 27, 2004, alleging that the circuit court erroneously instructed the jury about the offenses with which he was charged.

We affirm. [footnotes omitted]

RIGHT TO KNOW COMMITTEE v. CITY COUNCIL, CITY AND COUNTY OF HONOLULU

December 28, 2007 (No. 27996)

Opinion [pdf]

OPINION OF THE COURT BY FOLEY, J.

Defendants/Appellants/Cross-Appellees the City Council of the City and County of Honolulu (Council) and Donovan M. Dela Cruz, Todd K. Apo, Barbara Marshall, Charles K. Djou, Ann H. Kobayashi, Rod Tam, Romy M. Cachola, Gary H. Okino, and Nester R. Garcia, in their official capacities as members of the Honolulu City Council, (hereinafter, Council and the individual defendants are collectively referred to as Defendants) appeal from the Final Judgment entered on May 26, 2006 in the Circuit Court of the First Circuit.

Plaintiffs/Appellees/Cross-Appellants Right To Know Committee; League of Women Voters of Hawai'i; Society of Professional Journalists, Hawaii Chapter; University of Hawaii Chapter of the Society of Professional Journalists; Big Island Press Club, Inc.; Hawaii Political Reform Project; Citizen Voice; and Honolulu Community Media Council (hereinafter collectively referred to as Plaintiffs) cross-appeal as to the amount of the attorney's fees awarded.

. . .

The Final Judgment entered by the Circuit Court of the First Circuit on May 26, 2006 is vacated, and this case is remanded with direction to the circuit court to (2) enter judgment that provides that "declaratory  judgment is hereby entered in favor of Plaintiffs and against Defendants City Council, City and County of Honolulu; onovan M. Dela Cruz, Todd K. Apo, Barbara Marshall, Charles K. Djou, Ann H. Kobayashi, Rod Tam, Romy M. Cachola, Gary H. Okino, and Nester R. Garcia, in their official capacities as members of the Honolulu City Council, declaring that HRS § 92-2.5 did not permit members of the Honolulu City Council to engage in serial communications involving a quorum of Council members in deliberating Resolution 05-243" and (2) award Plaintiffs the amount of $41,353.14 in attorneys' fees, along with costs previously awarded. [footnotes omitted]

STATE OF HAWAI'I v. KLIE

December 27, 2007 (No. 27992)

Opinion [pdf]

OPINION OF THE COURT BY MOON, C.J.

On December 20, 2007, this court accepted a timely application for a writ of certiorari, filed by petitioner/defendant-appellants Thomas E. Klie, on December 4, 2007, requesting that this court review the September 5, 2007 judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its July 19, 2007 summary disposition order.  Therein, the ICA affirmed the District Court of the First Circuit's May 19, 2006 judgment convicting Klie -- via his no contest plea -- of and sentencing him for the offense of street solicitation of prostitution, in violation of Hawai'i Revised Statutes (HRS) § 712-1207 (Supp. 2006), quoted infra, [hereinafter, street solicitation].

In his application, Klie essentially reasserts the sole argument made in his direct appeal, namely, that the district court erred in denying his motion for a deferred acceptance of no contest (DANC) plea, filed pursuant to HRS § 853-1 (1993), quoted infra.  Specifically, Klie contends that a DANC plea is available in street solicitation cases, and the district court, therefore, committed error in finding that it lacked the discretion to grant the motion.  Based on the discussion below, we hold that the ICA erred in concluding that the district court properly denied Klie's motion for a DANC plea.  Consequently, the May 19, 2006 judgment is vacated, and the case is remanded to the district court for reconsideration of Klie's motion consistent with this opinion. [footnote omitted]

COLONY SURF, LTD. v. DIRECTOR OF THE DEPARTMENT OF PLANNING AND PERMITTING

December 26, 2007 (No. 26037)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Defendants/Appellees-Appellants, director of the Department of Planning and Permitting, 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 Plaintiff/Appellant-Appellee, Colony Surf, Ltd. ("CSL").  Appellants assert 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 Honolulu ("ROH") § 21-4.110(c)(1); (2) the circuit court erred by ruling that the daytime operation of Michel's following its temporary cessation constituted "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 §§ 21-4.110(c)(2), (c)(3), and (c)(5) in pari materia and by ruling that the daytime operation of Michel's violated ROH § 21-4.110(c)(5); an (4) the circuit court erred by ruling that the daytime operation of Michel's increased its hours of operation within the meaning of ROH § 21-4.110(c)(1).

Based upon the following analysis, we reverse the circuit court's July 23, 2003 judgment. [footnotes omitted]

IN RE CONTESTED CASE HEARING ON THE WATER USE PERMIT APPLICATION FILED BY KUKUI (MOLOKAI), INC.

December 26, 2007 (No. 24856)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

The present matter involves multiple appeals from the December 19, 2001 final decision and order of the Commission on Water Resource Management ("the Commission") approving Kukui (Moloka'i), Inc.'s ("KMI's") application for water use permits.  On appeal, intervenor-appellants (collectively referred to as "Appellants") Department of Hawaiian Home Lands ("DHHL"), Office of Hawaiian Affairs ("OHA"), and Judge Caparida ("Caparida") and Georgina Kuhuia ("Kuahuia") generally allege multiple violations of the Commission's public trust duties under the Hawai'i Constitution, the State Water Code ("Code"), and the public trust doctrine.  Specifically, the Appellants raise the following points of error.

. . .

For the following reasons, we hold that: (1) DHHL's reservation is a public trust "purpose" and not an "existing legal use"; (2) the Commission failed to adequately scrutinize KMI's request to divert water; (3) the Commission appeals to have placed the burden of proof on DHHL to demonstrate that pumpage at KMI's well would increase the chloride concentration at the DHHL well site; (4) the Commission's decision did not violate the precautionary principle; (5) the Commission erred by considering an untimely application; (6) KMI requested both existing and new uses; (7) pursuant to HRS § 174C-49(c), KMI may transport water from Well #17; (8) the Commission erred when it failed to consider the impact that the closing of the hotel and golf course would have on its allocation of water to KMI; and (9) the Commission impermissibly shifted the burden of proving harm to those claiming a right to exercise a traditional and customary native Hawaiian practice.

Accordingly, we vacate the Commission's December 19, 2001 final decision and order, and remand the matter for further proceedings consistent with this opinion.

DEL MONTE FRESH PRODUCE (HAWAII), INC. v. FIREMAN'S FUND INSURANCE COMPANY

December 26, 2007 (No. 24647)

Opinion [pdf]

OPINION OF THE COURT BY NAKAYAMA, J.

Defendant-Appellant Fireman's Fund Insurance Company ("Fireman's Fund"), appeal from the order of the Circuit Court of the First Circuit ("circuit court") filed August 29, 2001, granting partial summary judgment in favor of Plaintiff-Appellee Del Monte Fresh Produce (Hawai'i), Inc. ("Del Monte Fresh"), and denying Fireman's Fund's motion for summary judgment.  On appeal, Fireman's Fund presents the following points of error: (1) the circuit court erred when it chose to apply the law of Hawai'i rather than California; (2) even assuming, arguendo, that Hawai'i law applies, the circuit court misapplied this court's jurisprudence relating to insurance contracts; (3) the circuit court misinterpreted and misapplied the word "suits" in its insurance policies when it determined that Fireman's Fund owed a duty to indemnify on the basis that costs incurred in administrative proceedings are covered under the insurance policy as "damages."

. . .

For the following reasons, we hold that the circuit court erred when it determined that insurance coverage was assigned by operation of law to Del Monte Fresh.  We also hold that the assignment by contract was invalid inasmuch as none of the insurers consented to the assignment.  Accordingly, the circuit court's August 29, 2001 orders are vacated, and the case is remanded with instructions to enter summary judgment in favor of Defedant-Appellant insurers and against Del Monte Fresh consistent with this opinion. [footnote omitted]

Concurring opinion by Acoba, J., with whom Duffy, J., joins [pdf]

E&J LOUNGE OPERATING COMPANY, INC. v. LIQUOR COMMISSION OF THE CITY AND COUNTY OF HONOLULU

December 24, 2007 (No. 27940)

Opinion [pdf]

OPINION OF THE COURT BY WATANABE, J.

This secondary appeal by Appellant-Appellee/Corss-Appellee E & J Lounge Operating Company, Inc. (E&J) from the denial of a liquor dispenser general license (liquor license) raises two issues: (1) whether Appellee-Appellant/Cross-Appellee Liquor Commission of the City and County of Honolulu (the Commission) was required to hold a "contested case' hearing in accordance with Hawaii Revised Statutes (HRS) § chapter 91 before deciding whether to approve or deny E&J's application for a liquor license, and (2) whether the Circuit Court of the First Circuit (the circuit court) had jurisdiction to review the Commission's denial of E&J's application for a liquor license.

The circuit court concluded that it had jurisdiction over E&J's appeal pursant to HRS § 91-14 (1993 & Supp. 2006) because "[t]he public hearings held before the Commission prior to issuance of a Liquor License are adjudicatory in nature and are therefore contested cases" subject to the procedural requirements for contested cases set forth in HRS chapter 91.  The circuit court also held that the Commission violated HRS § 91-11 (1993) in denying E&J's application because although one of the Commissioners who participated in the final decision was not present for the first day of public hearings on the application, the Commission rendered a final decision without first issuing a proposed decision and providing an opportunity for E&J to file exceptions and present arguments on the proposed decision, one of the procedural requirements for a contested cases under HRS chapter 91.  Additionally, the circuit court concluded that the Commission violated HRS § 281-59(b) (Supp. 2006) by failing to "make a ruling on corrections, additions, or subtraction of the persons required to be notified of the public hearing[.]"  The circuit court thereupon vacated the Commission's decision and remanded the case to the Commission with instructions for further proceedings on remand.

In light of Singleton v. Liquor Comm'n, 111 Hawai'i 234, 140 P.3d 1014 (2006), we agree that the circuit court had jurisdiction pursuant to HRS § 91-14 to review the denial of E&J's liquor-license application.  However, we conclude that the Commission was required to comply with the more specific "public hearing" procedures set forth in HRS chapter 281, rather than the "contested case" procedures delineated in HRS chapter 91, in deciding whether to grant or deny E&J's liquor-license application.  Accordingly, we vacate the circuit court's judgment and remand for further proceedings consistent with this opinion. [footnotes omitted]

Dissenting opinion by Nakamura, J. [pdf]

STATE v. SPILLNER

December 24, 2007 (No. 27722)

Opinion [pdf]

OPINION OF THE COURT BY LEVINSON, J.

On July 20, 277, the defendant-appellant-petitioner Michael Spillner filed an application for a writ of certiorari urging this court to review the summary disposition order (SDO) of the Intermediate Court of Appeals (ICA) in State v. Spillner, No 27722 (Haw. App. Apr. 13, 2007) [hereinafter, "the ICA's SDO"], which affirmed the 'Ewa district court's January 4, 2006 judgments, the Honorable Valerie W.H. Chang presiding, convicting him of and sentencing him for one count each of driving while unlicensed, in violation of Hawai'i Revised Statutes (HRS) § 286-102 (1993 & Supp. 2002) (offense one), and driving without motor vehicle insurance, in violation of HRS § 431:10C-104 (Supp. 1997) (offense two).  In his application, Spillner asserts that the district court erred: (1) in denying his motion to suppress the fruits of the March 1, 2005 traffic stop, during which Honolulu Police Department Officer Arthur Takamiya cited Spillner for offenses one and two; and (2) in convicting him on the basis of illegally obtained evidence.  On August 21, 2007, this court granted Spillner's application and, on October 31, 2007, we heard oral argument.

For the reasons discussed herein, we conclude that Spillner's points of error are ultimately meritless and, therefore, affirm the ICA's April 24, 2007 judgment on appeal.

Dissenting opinion by Acoba, J. [pdf]

OLELO: THE CORPORATION FOR COMMUNITY TELEVISION v. OFFICE OF INFORMATION PRACTICES

December 21, 2007 (No. 27421)

Opinion [pdf]

OPINION OF THE COURT BY DUFFY, J.

Defendants-Appellants the Hawai'i Office of Information Practices and Les Kondo, Director of Office of Information Practices, in his official capacity [hereinafter, collectively OIP], appeal from the June 30, 2005 final judgment of the circuit court of the first circuit entered pursuant to its May 23, 2005 order that (1) granted summary judgment to Plaintiff-Appellee, Olelo: the Corporation for Community Television (Olelo), and (2) denied OIP's cross-motion for summary judgment.

On September 6, 2002, OIP issued OIP opinion letter number 02-08 (Olelo letter).  OIP Op. Ltr. No. 02-08 (2002), 2002 WL 31126635.  The Olelo letter concluded that Olelo met the definition of "agency" contained in Hawai'i Revised Statutes (HRS) § 92F-3 (1993) and, therefore, was subject to the provisions of Hawai'i Uniform Information Practices Act (UIPA), HRS chapter 92.  As an agency subject to UIPA, OIP concluded that Olelo was required to disclose "government records."

The current controversy began in 2004 when Olelo received a request from three individuals for a master list with contact information (names, addresses, telephone number, and email addresses) for Olelo's current clients, presented, producers, volunteers, and "all persons eligible to vote in Olelo's election."  When OIP subsequently demanded that Olelo disclose the requested information, Olelo filed a complaint for declaratory relief in circuit court requesting that the court declare that it is not an agency under UIPA.  After a de novo review of the legal arguments and evidence submitted by both parties, the circuit court granted Olelo summary judgment and denied OIP's corresponding motion for summary judgment.

OIP appealed to this court on July 26, 2005.  OIP alleges that the circuit court erred because (1) it did not apply the correct standard of review to and/or grant deference to OIP's conclusion that Olelo was an agency subject to UIPA, and (2) it concluded that Olelo was not an agency as defined in UIPA.

Based on the following analysis, we affirm the circuit court's declaratory judgment that Olelo is not an agency subject to UIPA. [footnote omitted]