Oral Arguments Schedule

Argument DetailCourt

(This oral argument has been continued until further notice)

No. SCAP-11-0000599, Thursday, February 5, 2015, 8:45 a.m.

TIMOTHY VANDEVEER, individually and on behalf of all others similarly situated, Respondent/Plaintiff-Appellee, vs. AMERICAN SAVINGS BANK, AMERICAN SAVINGS HOLDING, INC., Petitioners/Defendants-Appellants.

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

Attorneys for Petitioners/Defendants-Appellants:

Terrence J. O’Toole, Mark J. Bennett, Sharon V. Lovejoy, and Brandi B. Balanda

Attorneys for Respondent/Plaintiff-Appellee:

James J. Bickerton, John F. Perkin, and Brandee J.K. Faria

NOTE: Certificate of recusal, by Associate Justice Simeon R. Acoba, Jr., filed 12/07/12.

NOTE: Order assigning Circuit Court Judge Gary W.B. Chang, in place of Acoba, J., recused, filed 12/17/12.

NOTE: Order granting Application for Transfer, filed 12/18/12.

NOTE: Certificate of recusal, by Substitute Justice Gary W.B. Chang, filed 04/22/14.

NOTE: Order filed 12/03/14, that oral argument on the merits be reheard on 02/05/15 at 8:45 a.m.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioners American Savings Bank and American Savings Holding, Inc. appeal from the Circuit Court of the First Circuit’s (circuit court) July 15, 2011 order denying their Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment. This appeal arises out of a class action lawsuit brought by Respondent Timothy Vandeveer against Petitioners, based primarily on allegations that Petitioners re-sequence customer checking account transactions in order to increase overdraft charges and associated fees.

At issue is whether Respondent’s state law claims of unconscionability, conversion, unjust enrichment, and unfair or deceptive acts are preempted by federal regulations governing deposit-related activities of federal savings and loan associations (S&L). Petitioners maintain that the circuit court erred in finding genuine issues of material fact with respect to the preemption issue, given that federal law preempts the application of state laws to regulate or otherwise affect an S&L’s deposit-related activities. Respondent maintains that the governing federal body lacked authority to preempt state laws by regulation and alternatively, that his state law claims are not preempted because they are based on state laws of general application.

The court previously heard oral argument on the merits on Thursday, October 31, 2013.

 

Supreme
Court

No. SCWC-13-0002469, Thursday, April 9, 2015, 5:30 p.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. SUSAN CHIN, Petitioner/Defendant-Appellant.

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

University of Hawaii at Manoa
William S. Richardson School of Law
2515 Dole Street
Honolulu, HI 96822

Attorney for Petitioner:

William A. Harrison

Attorney for Respondent:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 01/30/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

On December 22, 2014, Petitioner/Defendant-Appellant Susan Chin (Chin) filed an Application for Writ of Certiorari (Application) from the Judgment on Appeal, filed by the Intermediate Court of Appeals (ICA) on December 5, 2014. The ICA affirmed the Circuit Court of the First Circuit’s (circuit court) October 29, 2014 Judgment of Conviction and Sentence.

Chin was found guilty after a jury trial of the offenses of theft in the first degree and money laundering. Chin filed a Motion for New Trial on the basis that a communication that took place during trial between the jury foreperson and a defense witness was prejudicial and denied her a fair trial. During the hearing on the Motion for New Trial, the circuit court denied Chin permission to question the jurors or to have the court do so regarding the communication. The court denied the motion at the conclusion of the hearing.

In her Application, Chin presents the question of whether her right to a fair trial was violated when the circuit court did not grant her a new trial. Chin argues that the communication that took place between the jury foreperson and her witness was presumptively prejudicial warranting the circuit court to at least question the jury foreperson regarding the communication and that she is also entitled to a new trial because of the circuit court’s refusal to conduct questioning. The State maintains that Chin failed to make a prima facie showing of deprivation that could substantially prejudice her right to a fair trial. The State asserts the circuit court was under no duty to recall the jury foreperson for questioning because Chin did not present any evidence to the court showing such a deprivation or that the jury was biased.

Supreme
Court

CAAP-12-0000434, Friday, April 17, 2015, 10:00 a.m.

STATE OF HAWAII, Plaintiff-Appellant vs. KUI PALAMA, Defendant-Appellee.

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

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

Attorney(s) for Plaintiff-Appellant:

Tracy Murakami and John H. Murphy, Deputy Prosecuting Attorneys

Attorney(s) for Defendant-Appellee:

Daniel G. Hempey of Hempey & Meyers

Attorney(s) for Amicus Curiae Attorney General of the State of Hawaii:

Robert T. Nakatsuji, Deputy Solicitor General

COURT: Foley, Fujise, and Ginoza, JJ.

Brief Description:

Plaintiff-Appellant State of Hawaii (State) filed a criminal complaint against Defendant-Appellee Kui Palama (Palama) alleging charges of (1) simple trespass in violation of Hawaii Revised Statutes (HRS) § 708-815 (2014) and (2) prohibited hunting on private lands in violation of HRS § 183D-26 (2011). The Circuit Court of the Fifth Circuit (Circuit Court) dismissed the charges against Palama based on its findings and conclusions that Palama had been exercising his constitutionally protected native Hawaiian rights. The State appeals from the Circuit Court's dismissal of the charges.

The charges are based on Palama's conduct of entering onto private property on Kauai for the purpose of pig hunting without first obtaining permission from the landowner. Palama is alleged to have entered the property with a mule and hunting dogs, and to have killed two pigs with a knife. Palama filed a motion to dismiss the charges, which was granted by the Circuit Court. The Circuit Court determined that Palama had established that his pig hunting on the subject private property was a traditional or customary practice that deserved protection under the Hawaii Constitution. The Circuit Court also concluded that the State's attempt to regulate Palama's traditional right amounts to a blanket prohibition or extinguishment of his protected practice of hunting pig on the subject property.

On appeal, the State challenges numerous factual findings and legal conclusions made by the Circuit Court, including the Circuit Court's rulings that: Palama met his burden of proving that he is a native Hawaiian; Palama's activities are established native Hawaiian customs or traditions warranting constitutional protection; the State's regulation of pig hunting on private property is a "blanket prohibition" of Palama's pig hunting activity; and Palama's pig hunting was a protected activity as long as no actual harm was done.

 

Intermediate
Court of Appeals

NO. SCWC-10-0000077, Thursday, April 23, 2015, 10:00 a.m.

In the Matter of the Grievance Arbitration Between STATE OF HAWAII ORGANIZATION OF POLICE OFFICERS (SHOPO), exclusive representative for Bargaining Unit 12, Police, on behalf of SHELLY L. RODRIGUES, JAMES A. RODRIGUEZ, and SHANE Y. SOKEI, Respondents/Grievants-Appellants, and COUNTY OF KAUAI, and KAUAI POLICE DEPARTMENT, Petitioners/Employers-Appellees.

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

Kauai Community College
Performing Arts Center
3-1901 Kaumualii Hwy
Lihue, HI 96766

Attorneys for Petitioner:

Alfred B. Castillo, Jr. and Mauna Kea Trask, Deputy County Attorneys

Attorney for Respondent:

Vladimir Devens

NOTE: Order accepting Application for Writ of Certiorari, filed 01/26/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

This case involves the authority of an arbitrator in resolving grievances under a collective bargaining agreement. The parties negotiated a collective bargaining agreement that included a grievance procedure providing for “final and binding” arbitration. SHOPO filed grievances under the collective bargaining agreement on behalf of three police officers with the Kauai Police Department who were passed over for promotions. The arbitrator sustained the grievances and ordered that the grievants be promoted and awarded back pay and benefits (remedy).

SHOPO filed a motion with the Circuit Court of the Fifth Circuit (circuit court) to confirm the arbitrator’s award, and the County of Kauai and Kauai Police Department (employers) opposed the motion to confirm and filed a counter motion to vacate the award. On August 6, 2009, the circuit court issued orders, vacating the arbitrator’s award and remanding for rehearing on the issue of remedy. On remand, the arbitrator issued a ruling that his remedy would remain unchanged based on the arbitrator’s authority under the collective bargaining agreement. SHOPO again filed a motion in the circuit court to confirm the arbitrator’s award, and the employers opposed the motion and filed a counter-motion to vacate. On September 20, 2010, the circuit court issued orders, finding that the remedy of the arbitrator’s award was in excess of the arbitrator’s authority.

On appeal, the ICA found that the arbitrator’s remedy did not exceed his authority and that the circuit court erred in finding otherwise. Accordingly, the ICA affirmed in part and vacated in part the August 6, 2009 and September 20, 2010 orders and remanded the case to the circuit court for affirmation of the arbitrator’s decision and the remedy awarded. Judge Ginoza concurred and dissented in the decision, arguing that the arbitrator exceeded his authority in granting the remedy.

The employers filed an Application for Writ of Certiorari on December 30, 2014, which was granted on January 26, 2015. The question presented is whether the ICA gravely erred in holding that the arbitrator did not exceed his powers under the collective bargaining agreement in ordering that the grievants be promoted and awarding back pay and benefits. The employers argue that the granting of the remedy was an abuse of the arbitrator’s authority because only the employer has the authority to grant promotions under the collective bargaining agreement. The employers also maintain that the ICA’s holding that the arbitration award did not violate public policy should be set aside. SHOPO argues that the arbitrator’s remedy was in line with his authority under the collective bargaining agreement. SHOPO maintains that the grievance procedures that were negotiated in the contract were intended by the parties to abridge and modify the employers’ management promotional rights.

 

 

(Amended 02/12/15)

No. SCWC-11-0001106, Tuesday, April 28, 2015, 8:45 a.m.

JULIANA J. ZHANG, Petitioner/Claimant-Appellant, vs. STATE OF HAWAI`I, DEPARTMENT OF LAND AND NATURAL RESOURCES, Respondent/Employer-Appellee, Self-Insured.

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:

Lila Barbara Kanae

Attorneys for Respondent:

James E. Halvorson and Steve K. Miyasaka, Deputy Attorneys General

NOTE: Certificate of Recusal, by Associate Justice Michael D. Wilson, filed 01/15/15.

NOTE: Order assigning Circuit Court Judge R. Mark Browning, in place of Wilson, J., recused, filed 01/22/15.

NOTE: Order accepting Application for Writ of Certiorari, filed 02/04/15.

COURT: MER, CJ; PAN, SSM, and RWP, JJ.; and Circuit Court Judge Browning, in place of Wilson, J., recused.

Brief Description:

Petitioner/Claimant-Appellant Juliana J. Zhang (“Zhang”) filed an application for writ of certiorari, seeking review of the Intermediate Court of Appeals’ (ICA) October 24, 2014 Judgment on Appeal, entered pursuant to its September 15, 2014 Summary Disposition Order. The ICA’s judgment affirmed the Labor and Industrial Relations Appeals Board’s (LIRAB) December 6, 2011 Decision and Order, which affirmed in part, reversed in part, and modified in part several decisions by the Director of Labor and Industrial Relations (Director) regarding Zhang’s entitlement to workers’ compensation benefits for temporary total disability (TTD), vocational rehabilitation (VR), permanent partial disability, and medical treatment for a mental stress injury that Zhang suffered while working as an employee for Respondent/Employer-Appellee State of Hawai`i, Department of Land & Natural Resources (DLNR). Approximately one month after filing her claim for workers’ compensation benefits, Zhang was terminated from employment because she allegedly did not have proper authorization to continue working in the United States.

Zhang raises two issues. First, Zhang argues that she is entitled to TTD payments that were erroneously denied based on the LIRAB’s finding that she is entitled to further VR services. DLNR argues that the denial was proper because no medical reports dated after the date of the hearing at which TTD was denied certified that Zhang was totally disabled from work as a result of her work injury. DLNR also argues that Zhang is not entitled to TTD because she has not enrolled in a VR plan.

Second, Zhang argues that she was improperly terminated in violation of HRS § 386-142 because her alleged lack of employment authorization was used to cover up the improper termination. DLNR contends that Zhang was terminated due to her failure to provide required employment authorization documents and not due to her work injury.

 

Supreme
Court

No. SCWC-11-0001019, Tuesday, April 28, 2015, 10 a.m.

BENJAMIN N. PULAWA, III, Petitioner/Claimant-Appellant, vs. OAHU CONSTRUCTION CO., LTD., Respondent/Employer-Appellee, and SEABRIGHT INSURANCE COMPANY, Respondent/Insurance Carrier-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:

Dan S. Ikehara

Attorneys for Respondent Seabright Ins. Co.:

Brian G.S. Choy and Keith M. Yonamine

NOTE: Order accepting Application for Writ of Certiorari, filed 01/28/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

The present appeal arises out of a work-related injury Petitioner Benjamin Pulawa III (“Pulawa”) endured while working as a construction supervisor for Respondent Oahu Construction and the subsequent workers’ compensation claims made against Oahu Construction and its insurance company, Seabright Insurance Company.

Pulawa requested that Seabright Insurance provide coverage for a neuromonics device to alleviate tinnitus symptoms related to a work-related injury that occurred in 1996. Seabright Insurance Company denied the claim, stating that the neuromonics device was not reasonably necessary medical care. In addition, Seabright Insurance sought to terminate Pulawa’s temporary total disability payments because Pulawa was considered medically stable and able to resume work. The Director of the Department of Labor and Industrial Relations and subsequently the Labor and Industrial Relations Appeals Board denied the neuromonics device because it was not reasonable and necessary and affirmed the denial of Pulawa’s total temporary disability payments.

Pulawa appealed to the Intermediate Court of Appeals, which affirmed the Labor and Industrial Relations Appeals Board.

Pulawa’s application raises the following questions:

1. Whether or not the ICA erred in finding that the neuromonics device for treatment of Petitioner’s tinnitus is not reasonably necessary?

2. Whether or not the ICA erred in finding that there was sufficient medical evidence that Petitioner is able to resume work?

 

Supreme
Court

No. SCWC-13-0000086, Tuesday, April 28, 2015, 11:15 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. JUNE-JUNE MAS ABDON, Petitioner/Defendant-Appellant.

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

Attorneys for Petitioner:

Phyllis J. Hironaka and Pamela I. Lundquist, Deputy Public Defenders

Attorney for Respondent:

Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 02/04/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioner/Defendant-Appellant June-June Mas Abdon (“Abdon”) filed an application for writ of certiorari to review the October 22, 2014 judgment of the Intermediate Court of Appeals (“ICA”), entered pursuant to its September 26, 2014 Memorandum Opinion. The ICA’s judgment vacated the Circuit Court of the First Circuit’s (“circuit court”) January 16, 2013 judgment of conviction and sentence for sexual assault in the first degree, based on the circuit court’s failure to instruct the jury on the lesser included offense of sexual assault in the third degree.

In his application, Abdon does not challenge the ICA’s latter ruling, but asserts that the ICA gravely erred in rejecting his claim that the circuit court erred in denying his post-trial motion for judgment of acquittal. Abdon’s post-trial motion for judgment of acquittal argued that the State failed to adduce evidence at trial of the date his prosecution commenced, and accordingly, the State did not prove beyond a reasonable doubt “facts establishing that the offense was committed within” the statute of limitations as required by Hawai`i Revised Statutes § 701-108.

 

Supreme
Court

No. SCWC-12-0000115, Thursday, May 14, 2015, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. JOSEPH VAIMILI, Petitioner/Defendant-Appellant.

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:

Jeffrey A. Hawk

Attorney for Respondent:

James M. Anderson, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 02/20/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

At issue in this case is the constitutional right of a criminal defendant to be present for trial. This case arises from Petitioner/Defendant-Appellant Joseph Vaimili’s (Vaimili) convictions for sex trafficking related crimes. In brief summary, Vaimili was present in court through jury selection; however, he failed to appear for trial two days later despite being instructed to do so. The trial was continued two times over the course of one month to permit Vaimili to appear pursuant to a bench warrant; first for five days, at which time the circuit court found that Vaimili had voluntarily absented himself from the proceedings, and again for twenty-one days, after which the circuit court conducted trial in his absence. Vaimili was found guilty by jury on all counts. He was subsequently apprehended in Texas over a year later, and was returned to Hawai`i for sentencing. The ICA affirmed his convictions.

Vaimili challenges the State’s pleading of the charges against him in the disjunctive and the circuit court’s conducting trial in his absence, presenting four issues on certiorari. First, Vaimili argues that the ICA erred when it held that the charges against him were fatally defective where they were phrased in the disjunctive. He contends that each disjunctive charge supported four distinct and separate acts that could have supported his conviction, and therefore failed to provide due process and notice of the specific acts for which he was being charged in order to allow him to prepare his defense.

 Second, Vaimili argues that the ICA erred when it held that his trial counsel was not ineffective for failing to object to the disjunctive charging language and moving to dismiss the complaint.

Third, Vaimili argues that the ICA erred when it held that “trial commences” for purposes of Hawai`i Rules of Penal Procedure Rule 43 when jury selection begins rather than when jeopardy attaches, i.e., the jury is sworn, which is his position. He argues that at the time the circuit court found that he had voluntarily absented himself, no substantive event had occurred. He therefore contends that the ICA erred when it held that he had voluntarily waived his right to be present because he did not voluntarily absent himself after the jury had been sworn in.

Fourth, Vaimili argues that the ICA erred when it held that the circuit court did not violate his constitutional right to be present where it held the trial in his absence without showing that he had voluntarily absented himself from the proceedings. Vaimili argues that (1) the State failed to sustain its burden to establish that his absence was voluntary and not a result of circumstances beyond his control, (2) the violation of his right to be present was not harmless beyond a reasonable doubt, and (3) the circuit court abused its discretion when it decided to conduct the entire trial in his absence.

Supreme
Court

No. SCWC-12-0001011, Thursday, May 14, 2015, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. GREGORY A. KAZANAS, Petitioner/Defendant-Appellant.

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:

Randal I. Shintani

Attorney for Respondent:

Donn Fudo, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 02/23/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

In this case, Petitioner/Defendant-Appellant Gregory Kazanas was charged and convicted of Unauthorized Entry into Motor Vehicle in the First Degree, in violation of HRS § 708-836.5. The charge stemmed from an incident that occurred on October 31, 2011, in which Kazanas allegedly jumped onto the back of a car, smashed its rear windshield, and grabbed and punched the car’s driver through the open window on the driver’s side.

After his arrest, Kazanas was transported to Queens Medical Center. It is undisputed that Kazanas was not given a Miranda warning. While at the hospital, Kazanas began making loud, rude comments. In an attempt to calm Kazanas down, the Honolulu Police Department police officer accompanying Kazanas asked him if he “enjoyed Halloween [and] what kind of costumes did he see. . . .” According to the officer, after they had been talking for a while, but unrelated to her questions, Kazanas spontaneously uttered, “If people didn’t upset me, I wouldn’t have to punch them.” The circuit court ruled that the statement was voluntary and admitted it at trial. At issue on certiorari is whether the officer’s question constituted “interrogation”; in other words, whether the officer “‘should have known that his [or her] words or actions were reasonably likely to elicit an incriminating response’ from the person in custody.” State v. Ketchum, 97 Hawai?i 107, 119, 34 P.3d 1006, 1018 (2001) (citation omitted). Kazanas argues that he was subjected to custodial interrogation without the benefit of the Miranda warning; therefore, his statement should have been suppressed at trial.

Also at trial, Kazanas testified that he was physically incapable of committing the acts charged, because he was disabled from a prior nine-story fall from an apartment lanai. The State was then allowed to present evidence that, a few years after his fall, Kazanas had run, jumped, and punched other individuals in prior incidents (that led to convictions for assault and abuse of a family or household member). Kazanas argues on certiorari that the trial court improperly weighed the probative value of this evidence against the danger of prejudice to him.

Supreme
Court

No. SCWC-13-0000428, Thursday, May 14, 2015, 11:15 a.m.

In the Matter of the THOMAS H. GENTRY REVOCABLE TRUST

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

Attorneys for Petitioner:

Margery S. Bronster and Jae B. Park

Attorneys for Respondents:

Carroll S. Taylor and Alan T. Yoshitake

NOTE: Order accepting Application for Writ of Certiorari, filed 02/18/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioner-Appellant Kiana E. Gentry (Gentry) applied for writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its memorandum opinion.

This case arises from a dispute over the distribution of assets from the Thomas H. Gentry Revocable Trust. The beneficiaries and Co-Trustees entered into a settlement agreement, which Gentry alleged the Co-Trustees violated. Gentry filed a petition to enforce the settlement agreement, and the Co-Trustees filed a petition for instructions regarding distribution of the assets. The probate court entered two judgments, one denying Gentry’s petition to enforce (“Enforcement Judgment”) and one granting the Co-Trustees’ petition for instructions (“Distribution Judgment”). Gentry appealed from the Enforcement Judgment, but not the Distribution Judgment.

The ICA held that Gentry’s appeal constituted a collateral attack on the Distribution Judgment. The ICA concluded that reversal of the Enforcement Judgment would be inconsistent with the Distribution Judgment, which the ICA had no jurisdiction to amend because Gentry had not appealed. The ICA held that it could not grant Gentry effective relief, and dismissed the appeal as moot.

In her application, Gentry argues that the ICA erred in applying the collateral attack doctrine, and in relying on the doctrine to find the appeal to be moot. According to Gentry, the settlement agreement can be enforced even if the Distribution Judgment is not amended. Thus, Gentry argues that this court can vacate the Enforcement Judgment and order the probate court to grant her petition to enforce the settlement agreement.

The Co-Trustees argue that the ICA did not err in applying the collateral attack doctrine, and that Gentry’s appeal is moot regardless of whether it is a collateral attack. According to the Co-Trustees, Gentry’s failure to appeal from the Distribution Judgment means the ICA lacked jurisdiction to review the underlying issue, which renders the appeal moot.

Supreme
Court

No. SCAP-13-0000765 Thursday, May 21, 2015, 8:45 a.m.

THE SIERRA CLUB and SENATOR CLAYTON HEE, Petitioners/Appellants-Appellants, vs. CASTLE & COOKE HOMES HAWAII INC.; THE LAND USE COMMISSION OF THE STATE OF HAWAI`I; OFFICE OF PLANNING, STATE OF HAWAI`I; DEPARTMENT OF PLANNING AND PERMITTING, Respondents/Appellees-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

Attorneys for Petitioners:

Eric A. Seitz, Della A. Belati, and Sarah R. Devine

Attorneys for Respondent Castle & Cooke:

Benjamin M. Matsubara, Curtis T. Tabata, and Wyeth M. Matsubara

Attorneys for Respondent Land Use Commission:

Russell A. Suzuki, Patricia Ohara, and Diane Erickson, Deputy Attorneys General

Attorney for Respondent Dept. of Planning and Permitting:

Dawn Takeuchi Apuna, Deputy Corporation Counsel

NOTE: Certificate of Recusal, by Associate Justice Simeon R. Acoba, Jr., filed 01/14/14.

NOTE: Order assigning Circuit Court Judge R. Mark Browning, in place of Acoba, Jr., recused, filed 01/24/14.

NOTE: Order granting Application for Transfer, filed 02/04/14.

COURT: MER, CJ; PAN, SSM, and RWP, JJ.; and Circuit Court Judge Browning in place of Acoba, J., recused.

Brief Description:

In this case, Appellants Sierra Club and Senator Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which denied and dismissed their appeal from the Land Use Commission's Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee Castle & Cooke's Petition for District Boundary Amendment. The Land Use Commission reclassified approximately 769 acres of Castle & Cooke’s land from the state agricultural land use district to the state urban land use district. The land is slated for development of Castle & Cooke’s Koa Ridge Makai and Waiawa projects.

Appellants argue that the reclassification violated Article XI, Section 3 of the Hawai?i State Constitution, which provides the following:

The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action.

Appellants also argue that the reclassification violated Act 183, HRS § 205-41 through -52, which are the statutory provisions implementing Article XI, Section 3's mandate, and which govern land use on important agricultural lands. They contend that, until the City and County of Honolulu's Department of Planning and Permitting has submitted its designation of important agricultural lands on Oahu to the Land Use Commission, the Land Use Commission should not reclassify land that could potentially qualify as important agricultural lands.

Lastly, Appellants argue that the reclassification violated Hawai?i Administrative Rules § 15-15-77, focusing specifically upon subsection (6), which requires the Land Use Commission to consider whether taking land in “intensive agricultural use for two years prior to the date of a filing of a petition [for a district boundary amendment] or lands with a high capacity for intensive agricultural use” out of the agricultural district “[w]ill not substantially impair actual or potential agricultural production in the vicinity of the subject property or in the county of State; or . . . [i]s reasonably necessary for urban growth. . . .”

Supreme
Court

No. SCWC-12-0000109, Thursday, May 21, 2015 - 10 a.m.

THE STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. PETER DAVID, Petitioner/Defendant-Appellant.

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:

Craig W. Jerome, Deputy Public Defender

Attorney for Respondent:

James M. Anderson, Deputy Prosecuting Attorney

NOTE: Order granting Application for Writ of Certiorari, filed 03/03/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioner-Appellant Peter David (David) applied for writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its published opinion.

This case arises out of the fatal stabbing of Santhony Albert (Albert) on January 1, 2011. David was charged with second degree murder for Albert’s death (count I), and second degree assault for an assault on Torokas Kikku (count II) that allegedly occurred during the same incident.

At trial, David asserted that he stabbed Albert in self-defense. After David had testified, the State called two rebuttal witnesses, who contradicted parts of David’s testimony. The jury convicted David of the lesser included offenses of manslaughter and third degree assault. The circuit court sentenced David to twenty years imprisonment for count I, and one year imprisonment for count II.

David appealed his conviction and sentence, and the ICA affirmed the conviction but remanded the case for re-sentencing before a different judge.

In his application, David presents the following two questions:

I. Whether the ICA gravely erred in holding that the trial court did not abuse its discretion by allowing the State to present the testimony of two rebuttal witnesses.

II. Given the egregious misconduct of the Deputy Prosecuting Attorney during the sentencing hearing, whether the ICA gravely erred in remanding this case for resentencing rather than a new trial.

David argues that circuit court should not have permitted the State’s two rebuttal witnesses to testify because the State could have called them in its case-in-chief. David also argues that, during closing argument when referring to the rebuttal testimony, the Deputy Prosecuting Attorney (DPA) improperly argued facts that were not in evidence.

David also argues that the DPA made comments during the sentencing hearing that were an improper appeal to racial bias. David argues that the ICA’s remedy — remanding for re-sentencing — was insufficient, and that David should be granted a new trial.

Supreme
Court

(Amended 03/16/15)

No. SCWC-13-0001498, Wednesday, May 27, 2015, 12 p.m.

DORINDA HAMILTON, Petitioner and Respondent/Plaintiff-Appellant/Cross-Appellee, vs. DAVID HAMILTON, Petitioner and Respondent/Defendant-Appellee/Cross-Appellant.

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

Ronald T.Y. Moon Judiciary Complex
Kapolei Courthouse, Waianae District Court Courtroom
4675 Kapolei Parkway
Kapolei, HI 96707-3272

Attorney for Petitioner and Respondent David Hamilton:

Rebecca Copeland

Attorneys for Petitioner and Respondent Dorinda Hamilton:

Peter Van Name Esser and Michael S. Zola

NOTE: Order accepting Application for Writ of Certiorari, filed 01/08/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

Brief Description:

Petitioner and Respondent/Plaintiff-Appellant/Cross-Appellee Dorinda Hamilton (Dorinda) and Petitioner and Respondent/Defendant-Appellee/Cross-Appellant David Hamilton (David) individually filed cross-applications for writ of certiorari, seeking review of the ICA’s September 25, 2014 judgment, filed pursuant to its August 29, 2014 Memorandum Opinion. The ICA’s judgment affirmed in part, vacated in part, and remanded the Family Court of the Third Circuit’s (family court) June 7, 2013 Divorce Decree.

This case arises from an appeal and cross-appeal from monetary decisions in the parties’ the Divorce Decree. The parties dispute the impact of a multi-million dollar inheritance received by David near the end of the parties’ marriage on the family court’s determinations of property division, alimony, and attorney’s fees and costs. The family court considered any inheritance funds remaining at trial to be marital separate property, credited David with capital contributions for any withdrawn inheritance funds, and deducted these contributions from the marital estate, thereby creating a marital debt that was split between the parties and resulted in Dorinda owing David an equalization payment. The family court also found valid and relevant considerations to justify an equitable deviation, crediting Dorinda with an amount equal to her equalization payment. In addition, the family court awarded Dorinda spousal support both during the pendency of the divorce proceedings and during a period of five years following the trial, and also awarded her attorney’s fees and costs.

The case presents an issue of first impression in this jurisdiction with regard to whether a premarital economic partnership (“PEP”) can include proceeds derived from an illegal business enterprise. The family court found that a PEP existed and determined that possible marital estate proceeds were derived from an illegal marijuana joint enterprise. On appeal, the ICA concluded that the family court’s finding that the parties formed a PEP was erroneous because it was based in part on this illegal business enterprise, and remanded to the family court to segregate the proceeds of the illegal business and to recalculate its property division and alimony awards.

In David’s application, he asserts the following issues on certiorari:

1) Whether ICA erred in affirming the Family Court’s decision that a premarital partnership existed even though the partnership was premised on an illegal business enterprise.

2) Whether the ICA erred in affirming the Family Court’s deviation from the Partnership Model based on David’s inheritance.

3) Whether ICA erred in affirming the Family Court’s award of temporary alimony to Dorinda during the pendency of the divorce because Dorinda was effectively awarded David’s inheritance.

4) Whether ICA erred in affirming the Family Court’s award of attorneys’ fees in Dorinda’s favor[.]

In Dorinda’s application, she asserts the following issues on certiorari:

1) Did the ICA commit grave error when it remanded this divorce case to the family court on a minor issue, without addressing the husband’s $3.5 million inheritance, which was critical to the rulings on property division and alimony?

2) Did the family court gravely err when it found wife incurred a debt to husband, payable by an equalization payment, when their marital partnership assets were insufficient to repay his capital contributions?

3) Did the family court gravely err when found [sic] equitable deviation could not be applied to marital separate property or the repayment of capital contributions from the marital estate, or permit the court to award any of the couple’s partnership assets to wife?

4) Did the family court gravely err when it declared husband’s inheritance marital separate property, credited him with capital contributions not used for marital purposes, and awarded him virtually all of the estate?

5) Did the family court gravely err when it failed to consider altering the amount or duration of alimony after wife received virtually none of the marital estate because of husband’s 2007 inheritance?

 

Ronald Y.Y. Moon Judiciary Complex
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