Hawaii Appellate Opinions

STATE v. ASSAYE

No. 29078 (September 30, 2009)

Opinion pdf

OPINION OF THE COURT BY NAKAYAMA, J.

Petitioner-Defendant-Appellant, Abiye Assaye ("Assaye"), has applied for a writ of certiorari from the Intermediate Court of Appeals' ("ICA") January 13, 2009 summary disposition order affirming the District Court of the First Circuit's ("trial court's") judgment convicting Assaye of the offense of excessive speeding, in violation of Hawai‘i Revised Statutes (HRS) § 291C-105(a)(1) and/or (a)(2) (Supp. 2006). In his application for writ of certiorari before this court, Assaye asserts that the ICA gravely erred (1) "in concluding that [Respondent-Plaintiff-Appellee, 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)." For the following reasons, we reverse the trial court's February 27, 2008 judgment because the ICA's decision is obviously inconsistent with both this court's decision in Manewa and its own decision in State v. Ito, 90 Hawai‘i 225, 978 P.2d 191 (App. 1999). [footnotes omitted]

Concurring opinion by J. Acoba pdf

LEE v. HAWAII PACIFIC HEALTH

No. 28549 (September 29, 2009)

Opinion pdf

OPINION OF THE COURT BY LEONARD, JJ.

I.    OVERVIEW

Ross Takehiko Unebasami (Ross) was born on June 16, 1982. In 2000, when he was seventeen years old, he was diagnosed with acute lymphoblastic leukemia. Ross was initially treated with chemotherapy, but after a relapse that began in February of 2003, Ross received a bone marrow transplant at Kapiolani Medical Center for Women and Children (Kapi‘olani) on March 27, 2004. Ross died at another hospital on June 25, 2004, nine days after his twenty-second birthday.

This case stems from allegations that, when Ross suffered renal failure after the bone marrow transplant, he was denied admission to Kapi‘olani's intensive care unit (ICU), a pediatric ICU, and transferred to another hospital's ICU over objections from Ross, his mother, and his treating physicians. The Complaint was filed on April 17, 2006 by Ross's mother, Mary Ann Lee (Lee), as personal representative of the Estate of Ross Takehiko Unebasami, deceased, and in her personal capacity, against Kapi‘olani and Hawaii Pacific Health (HPH), Kapi‘olani's parent corporation. The Complaint alleged, inter alia, that both Ross and his mother suffered serious emotional distress as a result of the defendants' allegedly wrongful conduct. The Complaint also alleged that, when Ross was accepted by Kapi‘olani for his bone marrow transplant, defendants negligently misrepresented to Lee that Ross would be admitted, as necessary, to all of Kapi‘olani's specialized facilities and would be cared for by all of its specialized staff, as necessary, and that Lee reasonably relied upon those representations in choosing Kapi‘olani instead of a mainland bone marrow transplant facility.

The Circuit Court of the First Circuit dismissed the Complaint on the grounds that Kapi‘olani and HPH are health care providers and, therefore, Lee's administrative remedies before the Medical Claims Conciliation Panel (MCCP) must be exhausted, as prescribed under Hawaii Revised Statutes (HRS) § 671-12(a), before a complaint can be filed in the Circuit Court. Final judgment was entered on February 23, 2007. Lee's claims on behalf of Ross's Estate were subsequently pursued in a separate action, following an MCCP proceeding. Lee's claims on her own behalf are the subject of her appeal in this case.

On March 22, 2007, HPH filed a notice of appeal and, on March 27, 2007, Lee filed a cross-appeal. Then, on April 10, 2007, HPH and Kapi‘olani also filed a cross-appeal.

On appeal, HPH argues that the Circuit Court erred in: (1) finding that HPH is a health care provider as defined in HRS Chapter 671; and (2) denying HPH an award of attorneys' fees based on Lee's frivolous filing of the Complaint. Lee contends that, because she has not asserted a claim as the victim of a medical tort, the Circuit Court erred in concluding that she was required to exhaust the administrative remedies of the MCCP. Kapi‘olani, like HPH, contends that the Circuit Court erred in failing to find that Lee had filed a frivolous lawsuit, and in denying its request for attorneys' fees. We affirm. [footnote omitted]

IN RE HONOLULU COMMUNITY-MEDIA COUNCIL, SOCIETY OF PROFESSIONAL JOURNALISTS, HAWAII CHAPTER

No 30046 (Sept. 11, 2009)

Opinion pdf

PER CURIAM

By means of an August 28, 2009 letter to the Chief Justice, the Honolulu Community-Media Council and the Society of Professional Journalists (Petitioners) seek waiver of fees for copying judicial financial disclosure statements. We accept the letter as a "motion for waiver of copying fees" in an original proceeding and deny the motion.

The Petitioners made similar requests in February and March 2009. The requests were denied by order of this court on March 13, 2009. The March 13, 2009 order concluded that Petitioners had failed to state good cause for waiver of the copying fees. In support of the current request for waiver of copying fees, Petitioners assert they have obtained an opinion from the Office of Information Practices (OIP) that concludes judicial financial disclosure documents are subject to the Uniform Information Practices Act (UIPA), chapter 92F of the Hawai'i Revised Statutes. Petitioners argue it is in the public interest, as defined by Hawai'i Administrative Rules (HAR) § 2-71-32(b) to waive the copying costs. As discussed below, we conclude that the OIP's July 8, 2009 memorandum opinion is wrong.

The records of Judicial Financial Disclosure Statements are not mere administrative records concerning the management of personnel . . . subject to  disclosure under the UIPA." The OIP concludes that Judicial Financial Disclosure Statements are records related to the supreme court's executive or administrative functions. However, Judicial Financial Disclosure Statements are judicial records, created and governed by Rule 15 of the Rules of the Supreme Court of the State of Hawai'i (RSCH) , promulgated by this court pursuant to its inherent and constitutional judicial authority to regulate judges. The records created by RSCH Rule 15 form an evidentiary basis for motions to disqualify judges and justices and may also provide evidence that can be used to discipline judges and justices. The authority to promulgate rules and keep records with regard to judicial qualification and discipline matters (1) fall within the scope of the court's power to adjudicate, and (2) is inherently intertwined with such adjudicative power. Therefore, the rules and records are not subject to HRS chapter 92F nor OIP review. Cf. In re Kading, 235 N.W.2d 409, 412 (Wis. 1975) (adoption of judicial code and financial disclosure rule were actions performed by the supreme court under its inherent power to function as the supreme and superintending court).

We have previously noted that the separation of powers doctrine is intended to preclude a commingling of ... essentially different powers of government in the same hands and thereby prevent a situation where one department would be controlled by, or subjected, directly or indirectly to the coercive influence of either of the other departments." See, e.g., Prav v. Judicial Selection Comm'n, 75 Haw. 333, 353, 861 P.2d 723, 732 (1993) (internal quotation marks and citations omitted); cf. Bester v. Louisiana Supreme Court Committee on Bar Admissions, 779 So. 2d 715, 721 (La. 2001) ("the inherent powers doctrine exists as a protective mechanism to ensure our independence as the head of a separate branch of state government"; declining to apply public records law to bar admission records).

In our tripartite system of government, judicial functions, such as promulgating rules and keeping records with regard to judicial qualification and discipline matters, are not subject to interference by an executive administrative agency. Judicial Financial Disclosure Statements are subject to disclosure under RSCH Rule 15(g), not the UIPA. Thus, HAR § 2-71-32(b) is not applicable. Accordingly, with regard to records created through the exercise of our inherent and constitutional judicial authority to regulate judges, we cannot permit the OIP to "control ... or subject [this court], directly or indirectly!,] to [its] coercive influence." Pray, 75 Haw. at 353, 861 P.2d at 732 (internal quotation marks and citations omitted).

The supreme court is currently seeking comments regarding revisions to RSCH Rule 15 and the financial disclosure statement form, anticipated to be adopted effective January 1, 2010. The recent and anticipated amendments to the form are designed to make necessary disclosures while protecting the safety and security of judges and their families. Judges will be required to make their financial disclosures on the revised form. The disclosures are due on or before April 30, 2010. These disclosure statements will be posted on the judiciary's website thereafter.

With regard to Petitioner's motion, this court may waive copying fees upon a showing of good cause under Rule 45(e) of the Hawai'i Rules of Appellate Procedure. In determining whether good cause exists, this court requires applicants to make a credible showing of indigency. Petitioners have failed to establish indigency, and accordingly, the motion for waiver of the copying fees is denied.

STATE OF HAWAII v. DOMINGO

No. 29224 (Sept. 11, 2009)

Opinion pdf

OPINION OF THE COURT BY LEONARD, J.

Defendant-Appellant Fredy Domingo (Domingo) appeals from the Judgment of Conviction and Probation Sentence entered on June 2, 2008 (Judgment) in the Circuit Court of the First Circuit (Circuit Court).

Domingo entered a plea of no contest to the offense of Accidents Involving Death or Serious Bodily Injury, in violation of Hawaii Revised Statutes (HRS) § 291C-12 (2007). Domingo was sentenced to five years of probation and ordered to pay, inter alia, restitution of $13,225.94.

On appeal, Domingo contends that the Circuit Court erred by requiring that he pay restitution. Domingo also contends that the amount of restitution was unreasonable.

Domingo claims that his conduct, failing to remain at the scene of an accident, failing to give information, and failing to render reasonable assistance, in violation of HRS § 291C-14 (2007), did not cause the decedent's losses. The State agrees that the decedent in this case is not a victim, as defined in HRS § 706-646(1), and that there is no evidence in the record that the decedent's death was the result of Domingo's criminal acts. Thus, Domingo did not cause losses to the decedent, pursuant to HRS § 706-646(2). Based on the record in this case and applicable authorities, we agree that the Circuit Court erred by requiring Domingo to pay restitution. Therefore, we need not consider whether the amount of restitution was reasonable. [footnotes omitted]