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Oral Arguments Schedule

Argument Detail

Court

(2nd Amended 07/31/17)

No. SCWC-15-0000841 Tuesday, October 17, 2017, 8:45 a.m.

ARTHUR BIRANO, Petitioner/Petitioner-Appellant, vs. STATE OF HAWAI I, Respondent/Respondent-Appellee.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Keith S. Shigetomi

Attorney for Respondent:

Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 06/08/17.

NOTE: Order assigning Circuit Court Judge Bert I. Ayabe, in place of Recktenwald, C.J., recused, filed 06/14/17.

NOTE: Order accepting Application for Writ of Certiorari, filed 06/21/17.

COURT: PAN, Acting C.J., SSM, RWP, and MDW, JJ., and Circuit Court Judge Ayabe, in place of Recktenwald, C.J., recused.
Brief Description:

On May 24, 2001, Petitioner Arthur Birano (Petitioner) and his co-defendants Bryce Takara and Nicolas Nakano were indicted on charges of robbery in the first degree, kidnapping, and burglary in the first degree; in addition, Petitioner was indicted on firearm-related offenses. Prior to trial, Takara and Nakano pleaded no contest to the charges relating to each of them.

During Petitioner’s trial, co-defendant Nakano was called to testify by the State, and he invoked his constitutional right to remain silent. The court took a recess, during which time Nakano’s attorney, the prosecutor, and the judge met in chambers without Petitioner’s counsel. Following the ex parte meeting, Nakano decided to testify. Petitioner’s attorney objected to the ex parte meeting and moved for a mistrial, which the circuit court denied. On the State’s motion, the court also prohibited Petitioner’s counsel from questioning Nakano regarding his invocation of the right to remain silent and his subsequent change of mind regarding testifying. When trial resumed, Nakano testified as a witness for the State. Petitioner was subsequently found guilty of all of the charged offenses. The circuit court sentenced Petitioner, inter alia, to two

concurrent extended terms of life imprisonment with the possibility of parole.

At Nakano’s sentencing, which occurred after the conclusion of Petitioner’s trial, the State withdrew its previous motion for extended term sentencing. Nakano was sentenced as a young adult defendant in accordance with the prosecution’s recommendation, which statutory provision provided for an eight-year term of imprisonment on the robbery and kidnapping convictions and four years on the burglary conviction, with the terms to run concurrently.

Petitioner appealed the judgment of conviction in his case asserting, inter alia, that the ex parte chambers conference during his trial violated his constitutional rights to an impartial judge, to be present at every stage of trial, and to confront an adverse witness with impeachment evidence. On January 11, 2006, this court held that although there was an improper ex parte communication among the court, the prosecutor, and Nakano’s attorney, that communication did not unfairly prejudice Petitioner’s right to a fair trial and did not constitute harmful error.

On September 9, 2009, Petitioner asserted in a Hawai i Rules of Penal Procedure (HRPP) Rule 40 petition (petition) that testimony provided by Nakano was a product of an undisclosed plea agreement that violated Petitioner’s fair trial and due process rights. Petitioner’s assertion was supported by Nakano’s 2009 declaration that his testimony at Petitioner’s trial had been untruthful and had been induced by the State’s promise of leniency at sentencing. On appeal of the circuit court’s denial of the petition, the Intermediate Court of Appeals (ICA) held that Petitioner stated a colorable claim for relief and remanded to the circuit court for a hearing on whether Petitioner’s due process rights were violated by the use of Nakano’s testimony. The circuit court again denied the petition, finding that the State’s witnesses were credible while Nakano was not and further finding that there was no off-the- record plea agreement and therefore nothing for the prosecution to disclose to the defense. On appeal, the ICA agreed with the reasoning of the circuit court and affirmed the court’s denial of the petition.

In his application for writ of certiorari, Petitioner asserts that an off-the-record plea agreement did exist between Nakano and the State, and he further argues that the prosecution’s failure to disclose this agreement violated his constitutional rights concerning the disclosure of exculpatory and impeachment evidence. In response, the State contends that Petitioner’s claims have been litigated thoroughly and found to lack merit, and it further submits that the ICA did not err in affirming the denial of Petitioner’s petition.

 

Supreme
Court 

No. SCWC-13-0004947, Tuesday, October 17, 2017, 10 a.m.

PATRICIA NAKAMOTO, Petitioner/Plaintiff-Appellant, vs. JAMAE KAWAUCHI, in her individual and official capacity as County Clerk, DOMINIC YAGONG, in his individual and official capacity as Chairman, Hawai`i County Council, County of Hawaiʻi, CORPORATE SPECIALIZED INTELLIGENCE AND INVESTIGATIONS, LLC, Respondents-Defendants-Appellees (CIVIL NO. 12-1-0466). SHYLA A. AYAU, Petitioner/Plaintiff-Appellant, vs. JAMAE KAWAUCHI, in her individual and official capacity as County Clerk, DOMINIC YAGONG, in his individual and official capacity as Chairman, Hawai`i County Council, County of Hawaiʻi, CORPORATE SPECIALIZED INTELLIGENCE AND INVESTIGATIONS, LLC, Respondents/Defendants-Appellees (CIVIL NO. 12-1-0467).

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioners:

Ted H.S. Hong

Attorneys for Respondents Jamae Kawauchi and Dominic Yagong, in their individual capacities:

Thomas L.H. Yeh, Michael W. Moore, and Jill D. Raznov

Attorneys for Respondents County of Hawaiʻi, Jamae Kawauchi and Dominic Yagong, in their official capacities only:

Laureen L. Martin, Assistant Corporation Counsel, and Michael J. Udovic, Deputy Corporation Counsel

Attorneys for Respondents Corporate Specialized Intelligence and Investigations, LLC:

April Luria and Jodie D. Roeca

NOTE: Order accepting Application for Writ of Certiorari, filed 08/09/17.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioners/Plaintiffs-Appellants Patricia Nakamoto and Shyla M. Ayau (Petitioners) applied for writ of certiorari from the Intermediate Court of Appeals’ (ICA) May 9, 2017 Judgment, entered pursuant to its March 14, 2017 Memorandum Opinion, which affirmed the Circuit Court of the Third Circuit’s (circuit court) judgment against Petitioners.

This case arises out of an incident in which Petitioners and other employees of the County of Hawaiʻi were terminated from their employment following an investigation. An article was published in a local newspaper regarding the terminations, which quoted County officials Jamae Kawauchi and Dominic Yagong as stating that the firings were due to violation of County policy.

Petitioners brought suit against the County, Kawauchi and Yagong in both their official and individual capacities, and Corporate Specialized Intelligence and Investigations, LLC (CSII), which the County hired to conduct the investigation. Petitioners alleged that the defendants had caused defamatory statements about them to be published in the local newspaper and elsewhere, and that the investigation had been conducted negligently.

The circuit court dismissed Petitioners’s claims holding that defamation claims are barred by the Workers’ Compensation Law (WCL), HRS Chapter 386, and that CSII as a third-party investigator owed no duty to Petitioners. Petitioners appealed to the ICA, arguing that the WCL does not bar claims based on injuries to a person’s reputation, and that CSII owed them a duty of care. The ICA affirmed the circuit court’s judgment.

Petitioners’ application for writ of certiorari raises three questions:

A. Did the ICA commit grave error by extending workers’ compensation exclusivity to injuries involving a person’s reputation?

B. Did the ICA commit grave error by determining the “truth” of disputed facts which was a question for the jury?

C. Did the ICA commit grave error by holding that no duty exists to conduct an objective investigation in support of employee discipline for public sector employees?

Supreme
Court

No. SCAP-16-0000686, Thursday, December 7, 2017, 8:45 a.m.

HERMINA M. MORITA, Petitioner/Petitioner-Plaintiff-Appellant, vs. THOMAS GORAK, STATE OF HAWAI I, JOHN DOES 1-50, JANE DOES 1-50, DOE CORPORATIONS 1-50, and/or OTHER DOE ENTITIES 1-50, Respondents/Respondents-Defendants-Appellees.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Harold Bronstein

Attorneys for Respondent:

Russell A. Suzuki and Deirdre Marie-Iha, Deputy Attorneys General

NOTE: Order granting Application for Transfer, filed 07/19/17.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.
Brief Description:

This appeal concerns Governor David Ige’s 2016 appointment of Thomas Gorak to the Public Utilities Commission (“PUC”). According to Hawaii Revised Statutes (“HRS”) § 269-2 (governing the PUC), which incorporates HRS § 26-34 (governing the selection and terms of members of boards and commissions), PUC commissioners are appointed after the Governor nominates them and the Senate confirms the nomination.

Prior to Gorak’s appointment, the PUC consisted of Commissioners Randall Iwase, Lorraine Akiba, and Michael Champley. Champley’s term was set to expire on June 30, 2016. During the regular legislative session of 2016, Governor Ige did not nominate Champley’s successor, and no successor was confirmed. After the close of the 2016 legislative session, on June 29, 2016, Governor Ige announced that Gorak would replace Champley on an interim basis, effective July 1, 2016.

As authority for his appointment, the governor cited article V, section 6 of the Hawai i State Constitution. That section is titled “Executive and Administrative Offices and Departments,” and it states, in relevant part, the following:

When the senate is not in session and a vacancy occurs in any office, appointment to which requires the confirmation of the senate, the governor may fill the office by granting a commission which shall expire, unless such appointment is confirmed, at the end of the next session of the senate.

Champley, for his part, informed the governor that he intended to stay on as a hold-over commissioner, citing to HRS § 269-2(a), which provides that each PUC member “shall hold office until the member’s successor is appointed and qualified.”

On July 1, 2016, Gorak was sworn in as a PUC commissioner. Later that month, Hermina M. Morita challenged the appointment via a Complaint and Quo Warranto petition filed against Gorak and the State of Hawai i in the Circuit Court of the First Circuit. Morita argued that Champley remained the lawful office holder, citing HRS § 269-2, as well as HRS § 26-34(b), which provides, in relevant part, “Any member of a board or commission whose term has expired and who is not disqualified for membership under subsection (a) may continue in office as a holdover member until a successor is nominated and appointed. . . .”

The parties filed cross-motions for summary judgment. After a hearing, the circuit court concluded that a vacancy on the PUC occurred when Champley’s term expired, and that Governor Ige validly appointed Gorak as interim commissioner under article V, section 6. The circuit court also concluded that Morita lacked standing to pursue declaratory relief. The circuit court thus granted Gorak and the State’s motion for summary judgment and denied Morita’s cross-motion for partial summary judgment. Morita appeals from the circuit court’s Final Judgment in favor of Gorak and the State and against her.

On appeal, Morita raises as error the circuit court’s conclusions that (1) a vacancy occurred at the expiration of Champley’s term; (2) Governor Ige validly appointed Gorak to the PUC; and (3) she lacked standing to pursue declaratory relief.

Supreme
Court