Oral Arguments Schedule

Argument DetailCourt

CAAP-12-0000583, Thursday, July 24, 2014, 9:00 a.m.

State of Hawaii, Plaintiff-Appellee vs. Tyrone Smith, Jr., 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(s) for Defendant-Appellant:

Lars Robert Isaacson

Attorney(s) for Plaintiff-Appellee:

Donn Fudo, Deputy Prosecuting Attorney

COURT: Leonard, Reifurth, and Ginoza, JJ.

Brief Description:

Defendant-Appellant Tyrone Smith, Jr. (Smith) was convicted of (1) Sexual Assault in the First Degree in violation of Hawaii Revised Statutes (HRS) § 707-730(1)(a) (Supp. 2013); (2) Robbery in the Second Degree in violation of HRS § 708-841(1)(b) (Supp. 2013); and (3) Kidnapping in violation of HRS § 707-720(1)(d) (Supp. 2013). Smith appeals from the Judgment of Conviction and Sentence entered by the Circuit Court for the First Circuit (circuit court).

On appeal, Smith contends that (1) the counts charged are subject to merger, (2) it was plain error for the circuit court to admit evidence of a credit card and evidence from the bedroom where Smith was staying as an overnight guest, (3) it was plain error for the circuit court to admit the complaining witness's identification of the suspect, and (4) he received ineffective assistance of trial counsel.

Intermediate Court of Appeals

No. SCWC-12-0000962, Thursday, August 7, 2014, 8:45 a.m.

(Amended 06/18/14)

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. LETITIA HARTER, 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:

Alen M. Kaneshiro

Attorney for Respondent:

James M. Anderson, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 05/07/14.

NOTE: Order granting motion for postponement of oral argument from 06/25/14 at 10:00 a.m. to 08/07/14 at 08:45 a.m., filed 06/18/14.

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

Brief Description:

Letitia Harter filed an application for writ of certiorari (Application) to review the February 27, 2014 Judgment on Appeal of the Intermediate Court of Appeals (ICA), filed pursuant to its January 28, 2014 Memorandum Opinion.

In brief summary, Harter was convicted of: (1) assault against a law enforcement officer in the second degree, (2) resisting arrest, and (3) disorderly conduct. On appeal, the ICA affirmed Harter’s convictions and held, in relevant part, that: (1) the circuit court did not abuse its discretion in determining there was not good cause to warrant a (further) substitution of counsel in order to protect Harter’s right to effective representation of counsel; (2) based on the record, it could not conclude that the circuit court plainly erred in failing to sua sponte hold a competency hearing; and (3) Harter’s argument that she received ineffective assistance of counsel is denied without prejudice to her raising it in a petition for post-conviction relief filed pursuant to HRPP Rule 40, as the competency issue may also have bearing on Harter’s apparent intoxication.

Harter presents three questions in her Application: (1) whether the ICA gravely erred in holding that the circuit court did not abuse its discretion in denying Harter’s motion for withdrawal and substitution of counsel; (2) whether the ICA gravely erred in holding that the circuit court did not abuse its discretion in failing to sua sponte hold a hearing to determine Harter’s competence to stand trial; and (3) whether the ICA gravely erred in holding that Harter’s trial counsel was not ineffective for failing to object to an officer’s testimony that she was on drugs.

Supreme
Courts

No. SCWC-30286 , Thursday, August 7, 2014, 10:00 a.m.

GARY W. RODRIGUES, Petitioner/Plaintiff-Appellant, vs. UNITED PUBLIC WORKERS, AFSCME LOCAL 646, AFL-CIO, Respondent/Defendant-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

Attorneys for Petitioner:

Eric A. Seitz and Della A. Belatti

Attorneys for Respondent:

James E.T. Koshiba and Charles A. Price

NOTE: Order accepting Application for Writ of Certiorari, filed 06/09/14.

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

Brief Description:

Gary W. Rodrigues (“Rodrigues”) filed an application for writ of certiorari to review the Opinion of the Intermediate Court of Appeals (“ICA”) filed on March 13, 2014. Rodrigues’s application arises out of a judgment entered on March 31, 2008 against Rodrigues in the amount of $850,000.00 by the United States District Court for the District of Hawai`i (“District Court”) for breach of fiduciary duties under the Employment Retirement Income Security Act of 1974 (“ERISA”).

At all times relevant to this case, Rodrigues was the State Director of United Public Workers, AFSCME Local 646, AFL-CIO (“UPW”), a labor organization. In 1984, UPW established a mutual aid trust to provide supplemental hospitalization benefits for its members known as the UPW Local 636 Mutual Aid 501(c)(9) Trust (“Trust”). UPW agreed to provide administrative services to the Trust (“Agreement”). Under the terms of the Agreement, UPW, “through its State Director acting on its behalf,” agreed to administer the money payable to or by the Trust. Rodrigues provided administrative services to the Trust from 1984 until late 2002.

In June 1994, the trustees of the Trust (“Trustees”) authorized the investment of Trust funds to be made through the Hewitt Company (“Hewitt Co.”). As State Director, Rodrigues processed all investments of the Trust funds through Hewitt Co. on behalf of the Trust. Between late 1998 and late 1999, Hewitt Co. made a series of investments in Best Rescue Systems, Inc. (“Best Rescue”) totaling $1.1 million.

On December 10, 1999, UPW’s parent union, AFSCME, recommended that the Trust demand repayment of all of its investments in Best Rescue; accordingly, Rodrigues demanded payment on behalf of the Trust. Best Rescue did not immediately comply. In January 2000, UPW, through AFSCME, filed lawsuits against Best Rescue and Hewitt Co. on behalf of the Trust and its members to collect the funds invested in Best Rescue. Hewitt Co.’s principal, Albert Hewitt, was later convicted of criminal violations for his role in the Trust’s investments in Best Rescue. Best Rescue filed for bankruptcy.

In November 2002, for reasons unrelated to the Best Rescue investments, AFSCME suspended Rodrigues from his position as State Director and placed UPW under its administration. On October 31, 2003, UPW filed a complaint in the District Court Case, seeking recovery from Rodrigues of all of the Trust’s losses resulting from its investments in Best Rescue. Following a bench trial in March 2008, the U.S. District Court determined that Rodrigues was liable to the Trust in the amount of $850,000.00 plus costs and fees for negligent breach of fiduciary duties.

On December 9, 2008, Rodrigues filed a “Complaint for Indemnity” in the Circuit Court of the First Circuit of the State of Hawai#i (“circuit court”). Rodrigues alleged that his liability to the Trust arose solely from acts and/or omissions that he committed in his capacity as agent of UPW and/or were authorized and/or ratified by the trustees of the Trust and/or UPW. On that basis, Rodrigues claimed that he was entitled to indemnity from UPW for $850,000.00 plus his attorneys’ fees and costs incurred while defending the District Court Case.

The circuit court concluded that ERISA preempted Rodrigues’ indemnity claim because a breaching ERISA fiduciary does not have an equitable right of contribution. On appeal, the ICA concluded that ERISA did not preempt Rodrigues’s state indemnity claim because his state claim against UPW was based solely on theories of respondeat superior and UPW’s negligence against Rodrigues. The ICA held, therefore, that because Rodrigues’s state indemnity claim did not raise questions involving MAF’s administration and benefits, his claim was not preempted by ERISA. Notwithstanding, the ICA concluded that because the District Court case had clearly established that Rodrigues was held liable for his own actions, Rodrigues was not entitled to be indemnified for his negligent acts as a matter of law. Thus, the ICA affirmed the circuit court’s order.

Rodrigues presents the following question on certiorari: “Whether the ICA erred in determining under the circumstances Rodrigues’ negligence defeats his indemnification claim against his employer, Respondent/Appellee-Defendant United Public Workers, AFSCME Local 646, AFL-CIO (“UPW”) as a matter of law.”

Supreme
Court

No. SCWC-11-0000350, Thursday, August 7, 2014, 11:15 a.m.

NORDIC PCL CONSTRUCTION, INC., fka NORDIC CONSTRUCTION, LTD., Respondent/Claimant/Counterclaim Respondent-Appellant, vs. LPIHGC, LLC, Petitioner/Respondent/Counterclaimant-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

Attorneys for Petitioner:

Terence J. O’Toole, Judith Ann Pavey, Zachary N. Gershuni, and John P. Manaut

Attorneys for Respondent:

Kenneth R. Kupchak, Anna H. Oshiro, Robert H. Thomas, Christi-Anne H. Kudo Chock, and Mark M. Murakami

NOTE: Certificate of Recusal, by Associate Justice Michael D. Wilson, filed 05/05/14.

NOTE: Order assigning Circuit Court Judge Karl K. Sakamoto, in place of Wilson, J., recused, filed 05/07/14.

NOTE: Certificate of Recusal, by Chief Justice Mark E. Recktenwald, filed 05/13/14.

NOTE: Order assigning Circuit Court Judge Steven S. Alm, in place of Recktenwald, C.J., filed 05/20/14.

NOTE: Order accepting Application for Writ of Certiorari, filed 06/10/14.

COURT: PAN, Acting C.J.; SSM & RWP, JJ.; Circuit Court Judge Alm, in place of Recktenwald, C.J., recused; and Circuit Court Judge Sakamoto, in place of Wilson, J., recused.

Brief Description:

At issue in this appeal is the alleged evident partiality of a neutral arbitrator based on his nondisclosure of relationships with two firms representing LPIHGC, Carlsmith Ball LLP and Starn O’Toole Marcus & Fisher. Pursuant to a subcontract agreement, LPIHGC and Nordic entered into binding arbitration and selected retired judge Patrick K.S.L. Yim (“Arbitrator Yim”) as neutral. Weeks after Arbitrator Yim issued a partial award in favor of LPIHGC, Nordic demanded Arbitrator Yim’s immediate disqualification on the basis of his nondisclosure of a relationship with Carlsmith Ball LLP. LPIHGC moved to confirm the arbitration award on the grounds that Nordic had not met its burden to prove evident partiality and had waived the right to challenge the award on that basis. Nordic moved to vacate the award based on Arbitrator Yim’s nondisclosure of an alleged long-standing attorney-client relationship with Carlsmith Ball LLP and three matters during the pendency of arbitration where he provided neutral services to both Carlsmith Ball LLP and Starn O’Toole Marcus & Fisher.

On appeal, LPIHGC raises the following two points of error. First, LPIHGC asks whether the ICA erred by creating and retroactively applying a new standard for finding evident partiality under Hawaiʻi Revised Statutes § 658A-23 (Supp. 2001) regarding a relationship between an arbitrator and counsel for a party. Second, LPIHGC asks whether the ICA erred in finding that Nordic had not waived its ability to vacate the award for evident partiality involving counsel where Nordic did not request additional information before the award was issued and failed to demonstrate that it did not know or could not have known about the relationship at the outset of the arbitration.

Supreme
Court

No. SCWC-11-0000594, Thursday, August 21, 2014, 8:45 a.m.

JASON KAWAKAMI, individually and on behalf of all others similarly situated, Petitioner/Plaintiff-Appellant/Cross-Appellee, vs. KAHALA HOTEL INVESTORS, LLC, dba KAHALA HOTEL AND RESORT, Respondent/Defendant-Appellee/Cross-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:

John Francis Perkin, Brandee J.K. Faria, and Michelle L. Premeaux

Attorneys for Respondent:

David J. Minkin, Lisa Cataldo, and Dayna H. Kamimura-Ching

NOTE: Order accepting Application for Writ of Certiorari, filed 06/17/14.

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

Brief Description:

At issue in the Application for Writ of Certiorari submitted by Petitioner/Plaintiff-Appellant/Cross-Appellee Jason Kawakami (“Kawakami”), individually and on behalf of all other similarly situated, is Hawai#i Revised Statutes (“HRS”) § 481B-14, titled “Hotel or restaurant service charge; disposition.”

Kahala Hotel Investors, LLC dba the Kahala Hotel & Resort (“Kahala”) levies a 20% service charge for banquet events at the hotel in connection with the purchase of food or beverages. The service charges are captured into one fund. Pursuant to a Collective Bargaining Agreement (“CBA”) between Kahala Hotel and United Here! Local 5, the union representing Kahala Hotel employees, 85% of the service charges are distributed to the employees as tip income. The remaining 15% is distributed to the banquet employees as wages.

In the lower court proceedings for the instant case, the Circuit Court of the First Circuit (“circuit court”) determined that because Kahala does not distribute 100% of the collected service charges as tips, but uses a percentage of them to pay wages, Kahala is required by HRS § 481B-14 to provide a disclosure to customers. The Intermediate Court of Appeals (“ICA”) disagreed. In its March 25, 2014 Memorandum Opinion, the ICA held that under this court’s interpretation of “tip income” in Villon v. Marriott Hotel Services, Inc., 130 Hawai`i 130, 306 P.3d 175 (2013), Kahala was in compliance with HRS § 481B-14 because it had distributed the entirety of its collected service charges to its employees as “wages and tips.” The ICA thus concluded that no disclosure was required.

Kawakami presents the following question on certiorari:

Whether the ICA gravely erred when it held that a hotel that fails to: (1) distribute 100% of the service charge collected directly to its employees as tip income, and (2) fails to disclose to customers that it is retaining portions of the service charge is nevertheless complying with HRS § 481B-14 if the hotel is “reclassifying” this money and making an accounting adjustment crediting the retained service charge against its preexisting wage and salary obligations.

Supreme
Court

No. SCWC-30109, Thursday, August 21, 2014, 10:00 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. RANGIE B. ALANGCAS, 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:

Paul J. Cunney, Marcus B. Sierra, Dean C.M. Hoe, and Daniel J. Kawamoto

Attorney for Respondent:

Marissa H.I. Luning, Deputy Solicitor General

NOTE: Order assigning Circuit Court Judge Faʻauuga To`oto`o, due to a vacancy, filed 03/19/14.

NOTE: Order accepting Application for Writ of Certiorari, filed 04/30/14.

COURT: MER, C.J.; PAN, SSM, & RWP, JJ.; and Circuit Court Judge Toʻotoʻo, due to a vacancy.

Brief Description:

On March 16, 2014, Rangie B. Alangcas (Petitioner) timely filed an application for writ of certiorari (Application) to review the January 14, 2014 judgment of the Intermediate Court of Appeals (ICA), issued pursuant to its November 29, 2013 published opinion.

Petitioner was charged with electronic enticement of a child in the first degree, in violation of HRS § 707-756. Petitioner filed two motions to dismiss, claiming that HRS § 707-756 violated the dormant commerce clause and was unconstitutionally vague and overbroad. The circuit court denied both motions and granted Petitioner leave to file an interlocutory appeal, which Petitioner did on October 12, 2009.

The ICA found that Petitioner did not have standing to challenge the facial vagueness of HRS § 707-756 because the conduct the Petitioner engaged in was clearly proscribed by the statute. The ICA also held the statute was not overbroad and did not violate the dormant commerce clause. The ICA affirmed the circuit court rulings.

In his Application, Petitioner contends the ICA erred in applying an “as applied” standard to his vagueness and dormant commerce clause challenges and thus erred in holding that he did not have standing to challenge the facial validity of the statute. Petitioner also maintains that HRS § 707-756 is unconstitutionally overbroad.

Supreme
Court

No. SCWC-12-0000984, Thursday, August 21, 2014, 11:15 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. TOI NOFOA, 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:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 06/18/14.

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

Brief Description:

Defendant-Appellant Toi Nofoa (“Nofoa”) filed an application for writ of certiorari to review the Summary Disposition Order of the Intermediate Court of Appeals (“ICA”) filed on January 31, 2014. In its Order, the ICA affirmed Nofoa’s conviction and sentence for Kidnapping in violation of Hawai`i Revised Statutes (“HRS”) ' 707-720, and Terroristic Threatening in the First Degree in violation of HRS ' 707-716. The charges against Nofoa were based on an incident with his ex-girlfriend (complaining witness or “CW”) at a Haleiwa gas station on September 11, 2008.

CW died while Nofoa’s kidnapping and terroristic threatening case was pending trial. Because CW was unavailable to testify at Nofoa’s trial, the State sought and was permitted to present her preliminary hearing testimony and a recording of her 911 call to the police on the night of the incident.

In addition to the circuit court’s admission of the abovementioned evidence in Nofoa’s trial, also at issue in this Application is the circuit court’s decision to (1) permit the jury to have the CD of CW’s preliminary hearing testimony during their deliberations; and (2) permit the Prosecutor to inform the jury that CW was dead during closing arguments.

Nofoa presents the following questions on certiorari:

Whether the ICA gravely erred in rejecting Nofoa’s claims: 1) that the preliminary hearing testimony failed to provide him with a constitutionally adequate opportunity to effectively cross-examine CW; 2) that the trial court abused its discretion in submitting a recording of the preliminary hearing testimony to the jury during deliberations; 3) that the trial court erred in admitting the CW’s 911 call; and 4) of judicial bias where the trial court allowed the State to tell the jury that CW was unavailable at trial because she was dead.

Supreme Court

No. SCWC-12-0000858, Thursday, Sept. 4, 2014, 8:45 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. YONG SHIK WON, 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:

Jonathan Burge

Attorney for Respondent:

Brian R. Vincent, Deputy Prosecuting Attorney

Attorney for Attorney General (Amicus Curiae):

Robert T. Nakatsuji, Deputy Solicitor General

NOTE: Order accepting Application for Writ of Certiorari, filed 06/24/14.

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

Brief Description:

Petitioner/Defendant-Appellee Yong Shik Won (Won) applied for a writ of certiorari from the Intermediate Court of Appeals’s (ICA) May 5, 2014 Judgment on Appeal filed pursuant to its March 28, 2014 Published Opinion.

This case arises from Won’s conviction for operating a vehicle under the influence of an intoxicant (OVUII) pursuant to HRS § 291E-61(a)(3). Won was arrested and transported to the Honolulu Police Station after he failed standard field sobriety testing. At the station, the police asked Won to submit to either a blood or breath alcohol test and informed him that refusal was a crime punishable by up to 30 days in jail. Won took and failed the breath test.

In his application for writ of certiorari, Won raises the following four questions:

1. Did the ICA err when it ruled that the 4th Amendment to the United States Constitution and article I, section 7 of the Hawaiʻi Constitution [were] not violated when the police threatened Petitioner-Appellant with 30 days in jail unless he consented to a 4th Amendment search, a blood or breath test, to determine his blood alcohol [level] in an impaired driving case[?]

2. Did the ICA err when it ruled that there was no violation of Petitioner-Appellant’s Miranda rights under article I, section 10 of the Hawaiʻi Constitution when, while Won was in custody, he was asked by the police, without Miranda warnings, if he wanted to refuse to take a blood alcohol test, which was likely to incriminate him in the petty misdemeanor offense of refusing to take a test under HRS 291E-68[?]

3. Did the ICA err when it ruled that there was no violation of Won’s statutory right to an attorney under HRS 803-9 and/or due process under article 1, section 5 of the Hawaiʻi Constitution when Won was in custody, asked questions regarding blood alcohol tests[,] and explicitly told he did not have a right to an attorney despite HRS 803-9 stating that he did[?]

4. Did the ICA err when it ruled that Won’s due process rights under article I, section 5 of the Hawaiʻi Constitution [were] not violated when the police told him that he “shall” be subject to 30 days in jail if he did not take a blood alcohol test[?]

 

Supreme
Court

No. SCWC-13-0000059, Thursday, Sept. 4, 2014, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. EDDIE A. GARCIA, 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:

Benjamin E. Lowenthal

Attorney for Respondent:

Richard K. Minatoya, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 06/25/14.

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

Brief Description:

This appeal arises out of a dispute over whether the State breached its plea agreement with Eddie A. Garcia (Garcia). In the plea agreement, the State agreed to “remain silent at the minimum term hearing” before the Hawaiʻi Paroling Authority (HPA). Prior to Garcia’s sentencing hearing in the Family Court of the Second Circuit (family court), the Deputy Prosecuting Attorney assigned (Prosecutor) submitted a letter and three exhibits for inclusion in Garcia’s pre-sentence investigation (PSI) report. Garcia then filed a motion to withdraw his no contest plea, arguing that the Prosecutor breached the plea agreement because the Prosecutor knew that the letter and exhibits would be transmitted to the HPA for its consideration at the minimum term hearing.

The family court denied Garcia’s motion and held that the Prosecutor did not breach the plea agreement because Garcia filed his motion before sentencing and therefore the PSI report containing the Prosecutor’s submission could be intercepted before it reached the HPA. The family court ordered that the PSI report be struck from the record and kept under seal, ordered that a new PSI report be prepared by a probation officer other than the one who prepared the first report, and prohibited the State from communicating with the probation officer responsible for preparing the new PSI report. Garcia was subsequently sentenced in accordance with the terms of the plea agreement. Garcia timely appealed on the basis of the Prosecutor’s alleged breach, and the Intermediate Court of Appeals (ICA) affirmed.

Garcia raises the following question in his application:

Did the ICA commit grave error by departing from well-established precedent and concluding that the prosecutor’s submission of a detailed letter and three exhibits in a presentence investigation report headed to the Hawai`i Paroling Authority was not a breach of her promise to stand silent at the minimum term hearing?

Supreme
Court

No. SCWC-13-0000137, Thursday, Sept. 4, 2014, 11:15 a.m.

THOMAS NISHIMURA, COLETTE NISHIMURA, individually and on Behalf of a Class of All Persons Similarly Situated, Petitioners/Plaintiffs-Appellees, vs. GENTRY HOMES, LTD., a Hawaiʻi Domestic Profit Corporation, Respondent/Defendant-Appellant and SIMPSON MANUFACTURING CO., INC., a Delaware Corporation; SIMPSON STRONG-TIE COMPANY, INC., a California Corporation; JOHN and JANE DOES 1-100, DOE PARTNERSHIPS 1-100; DOE CORPORATIONS 1-100; DOE GOVERNMENTAL AGENCIES 1-100; and DOE ASSOCIATIONS 1-100, Defendants.

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:

Melvin Y. Agena, Glenn K. Sato, and Graham B. Lippsmith

Attorneys for Respondent:

Ryan H. Engle, Sarah M. Love, and Summer L. Sylva

NOTE: Order accepting Application for Writ of Certiorari, filed 07/07/14.

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

Brief Description:

In this case, Petitioners/Plaintiffs-Appellees Thomas and Colette Nishimura, individually and on behalf of a class of all persons similarly situated (collectively, “the Nishimuras”), filed a Complaint against Respondent/Defendant-Appellant Gentry Homes, Ltd. (“Gentry”), alleging that Gentry constructed the Nishimuras’ home without adequate high wind protection. Gentry moved to compel arbitration pursuant to the arbitration agreement contained in the Home Builder’s Limited Warranty (“HBLW”). The HBLW was administered by Professional Warranty Service Corporation (“PWC”). The arbitration agreement provided the following:

Any disputes between YOU [the homeowner] and US [Gentry], or parties acting on OUR [Gentry's] behalf, including PWC, related to or arising from this LIMITED WARRANTY . . . will be resolved by binding arbitration.

. . . .

The arbitration shall be conducted by Construction Arbitration Services, Inc., or such other reputable arbitration service that PWC shall select, at its sole discretion, at the time the request for arbitration is submitted.

The Nishimuras opposed the motion to compel arbitration, first pointing out that Construction Arbitration Services, Inc., was no longer conducting construction arbitrations. Therefore, under the terms of the arbitration agreement, PWC would then select a reputable arbitration service. The Nishimuras argued that PWC marketed its close relationship with an insurance company that was the parent of the insurer of another developer, Haseko Homes, which was also being sued for the same construction defect. Thus, the Nishimuras argued, PWC had a conflict of interest because it would likely align itself with Haseko Homes, and, therefore, with Gentry on the construction defect issue. The Nishimuras contended that the arbitrator-selection provision allowing PWC to unilaterally select the arbitrator would deprive them of a fair and effective forum in which to vindicate their claims. The circuit court granted Gentry’s motion to compel arbitration in part and denied it in part, striking and severing the arbitrator-selection provision after finding “a potential conflict of interest with [PWC] selecting the arbitration service as set forth under the [HBLW].” As a result, the circuit court ordered the parties to meet and confer to select a local arbitration service. The circuit court then denied Gentry’s motion for reconsideration, and Gentry appealed.

The ICA vacated the circuit court’s orders. The ICA first stated, “We decline to conclude that PWC’s potential conflict of interest constitutes bias rendering the arbitrator selection process under the [HBLW] so ‘fundamentally unfair’ as to be unenforceable.” Slip Opinion at 11. The ICA then stated, “In order to avoid enforcement of an allegedly unconscionable arbitration clause, [the Nishimuras] were required to present evidence of actual partiality or bias of the arbitration service designated by PWC or the neutral arbitrator selected.” Id. The ICA also stated, “Because [the Nishimuras] failed to prove that the arbitration selection process would necessarily result in actual partiality or bias, the circuit court should have confined judicial review to the fairness of the completed arbitration award, at which time 9 U.S.C. § 10 could provide for vacating the award upon a finding that the arbitrators acted with evident partiality.” Id. at 12.

On certiorari, the Nishimuras present the following question: “Did the ICA err by ruling that in a pre-arbitration challenge to a one-sided arbitration-selection clause, the challenging party must prove that the arbitrator-selection process would actually or necessarily result in a biased arbitrator or arbitrator service?”

This appeal presents an issue of first impression in this jurisdiction: Under what standard does a court analyze a pre-arbitration challenge to the arbitrator-selection process?

Supreme
Court

CAAP-13-0000531, Wednesday, September 10, 2014, 9:00 a.m.

CAAP-13-0000531 - (Consolidated with CAAP-13-0000551 as the Personal Representative, and Plaintiffs-Appellees, vs. State of Hawaii, CAAP-13–0000615)

William A. Arthur, Sr., Individually, and The Estate of Mona Arthur thru William A. Arthur Sr., as the Personal Representative, Plaintiffs-Appellees, vs. State of Hawaii, Department of Hawaiian Home Lands, Kamehameha

Investment Corporation, Design Partners Inc., Coastal Construction Co., Inc., Association of Kalawahine Streamside Association, Sato and Associates, Inc., Daniel S. Miyasato, Inc., Defendants-Appellees, and John and Mary Does 1-50, Doe Partnerships 1-50, Doe Corporations 1-50, and other Doe Entities 1-50, Defendants.

Kamehameha Investment Corporation, State of Hawaii, Department of Hawaiian Home Lands, Third-Party Plaintiffs-Appellees, vs. Kiewit Pacific Co., Third-Party Defendant-Appellee. Kiewit Pacific Co., Fourth-Party Plaintiff-Appellee, vs. Pacific Fence, Inc., Fourth-Party Defendant-Appellant, and John Does 1-5, Doe Corporations 1-5, Doe Partnerships 1-5, Roe Non-Profit Organizations 1-5, and Roe Governmental Agencies 1-5, Fourth-Party Defendants.

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(s) for Plaintiffs/Appellees/Appellants/Cross-Appellees WILLIAM A. ARTHUR, SR., Individually, and THE ESTATE OF MONA ARTHUR THRU WILLIAM A. ARTHUR SR. AS THE PERSONAL REPRESENTATIVE:

Lester K. M. Leu, Gary Y. Okuda, and Karyn A. Doi of Leu
Okuda & Doi
Leighton K. Lee

Attorney(s) for Defendant/Appellee/Third-Party Plaintiff/Cross-Appellee STATE OF HAWAII, DEPARTMENT OF HAWAIIAN HOME LANDS:

Randall Y. Yamamoto and Brian Y. Hiyane of Yamamoto Kim, LLP

Attorney(s) for Defendant/Appellee/Third-Party Plaintiff/Cross-Appellee KAMEHAMEHA INVESTMENT CORPORATION:

Brad S. Petrus, Joseph F. Kotowski III, David R. Harada-Stone, and Lyle M. Ishida of Tom Petrus & Miller, LLLC

Attorney(s) for Defendant/Appellee/Cross-Appellee/Appellant DESIGN PARTNERS, INCORPORATED:

Arthur H. Kuwahara of Kim & Kuwahara

Attorney(s) for Defendant/Appellee/Cross-Appellant COASTAL CONSTRUCTION CO., INC.:

Wayne M. Sakai, Michiro Iwanaga, and Max J. Kimura of Sakai Iwanaga Sutton Law Group, AAL, LLLC

Attorney(s) for Defendant/Appellee ASSOCIATION OF KALAWAHINE STREAMSIDE ASSOCIATION:

Jonathan L. Ortiz, Wade J. Katano, and Christine S. Prepose-Kamihara of Ortiz & Katano

Attorney(s) for Defendants/Appellees/Cross-Appellants SATO AND ASSOCIATES, INC. and DANIEL S. MIYASATO:

Frank K. Goto, Jr., Bennett J. Chin, and Jane Kwan of the Law Offices of Frank K. Goto, Jr.

Kevin P.H. Sumida, Anthony L. Wong, and Lance S. Au of Kevin Sumida & Associates, LLLC

Attorney(s) for Third-Party Defendant/Appellee/Fourth-Party Plaintiff/Cross-Appellee KIEWIT PACIFIC CO.

Wesley H.H. Ching, Sheree Kon-Herrea of Fukunaga Matayoshi Hershey & Ching, LLP

Cary T. Tanaka and Dawn M. Nakagawa of the Law Offices of Cary T. Tanaka Greg H. Takase

Attorney(s) for Fourth-Party Defendant/Appellant/Appellee/Cross-Appellee PACIFIC FENCE, INC.:

Robert P. Richards of Hughes Richards & Associates
Michael N. Tanoue and Eric H. Kunisaki of The Pacific Law Group

COURT: Foley, Fujise, and Leonard, JJ.

Brief Description:

This case arises out of an alleged wrongful death that occurred on or about November 10, 2003 at the Kalawahine Streamside Housing Development, located on 27 acres of land owned by Defendant/Appellee/Third Party Plaintiff/Cross-Appellee State of Hawaiʻi, Department of Hawaiian Home Lands (DHHL) in Honolulu. Plaintiffs/Appellees/Appellants/Cross-Appellees William A. Arthur, Sr., individually and the Estate of Mona Arthur, through William A. Arthur, as Personal Representative (collectively, Arthur) brought suit against DHHL, the developer Defendant/Appellee/Third Party Plaintiff/ Cross-Appellee Kamehameha Investment Corporation (KIC), the general housing contractor Defendant/Appellee/Cross-Appellant Coastal Construction Co., Inc. (Coastal), the architecture firm Defendant/ Appellee/Cross-Appellee/Appellant Design Partners, Inc. (Design Partners), the civil engineer Defendants/Appellees/Cross-Appellant Sato and Associates, Inc. and Daniel S. Miyasato (Sato) (collectively, Sato), and the Defendant/Appellee Association of Kalawahine Streamside Association (AOAO). KIC filed a third-party Complaint for indemnification and contribution against the general site development contractor, Third-Party Defendant/Appellee/Fourth-Party Plaintiff/ Cross-Appellee Kiewit Pacific Co. (Kiewit). DHHL also filed a third-party Complaint for indemnification and contribution against Kiewit. Kiewit filed a fourth-party Complaint against the subcontractor who furnished and installed a chainlink fence, Fourth-Party Defendant/ Appellant/Appellee/Cross-Appellee Pacific Fence Inc. (Pacific Fence). Defendant parties filed counterclaims for indemnification and contribution against other defendant parties.

On April 30, 2013, Pacific Fence filed an appeal from the Circuit Court of the First Circuit's (circuit court) Amended Final Judgment, entered April 2, 2013 (Amended Final Judgment), and underlying orders. The Amended Final Judgment superseded the Judgment entered January 9, 2012, and was entered in favor of DHHL, KIC, Design Partners, Coastal, AOAO, and Sato against Arthur. Concerning the Third- and Fourth-Party Complaints, the Amended Final Judgment was entered in favor of Kiewit against KIC and in favor of Pacific Fence against Kiewit. The Amended Final Judgment also provided judgment on specific claims of contribution, equitable indemnity, and contractual defense amongst the parties. Several appeals had arisen from the Arthur Complaint and on June 4, 2013, this court entered an order consolidating the appeals in case nos. CAAP-13-0000531, CAAP-13-0000551, and CAAP-13-0000615 under CAAP-13-0000531.

On appeal, Arthur contends the circuit court erred by:

(1) granting AOAO's motion for summary judgment on any and all claims asserted by plaintiffs due to lack of causation;

(2) granting KIC's motion for partial summary judgment as to plaintiff's claim for punitive damages; and

(3) denying Arthur's motion for leave to file a complaint over and against Kiewit.

On appeal, Sato contends the circuit court erred by:

(1) holding Sato had a joint and several duty to defend KIC as of December 15, 2005;

(2) finding Sato was obligated to pay KIC fees or costs;

(3) finding Sato had a contractual duty to indemnify and defend KIC and that Sato had a joint and several duty to defend KIC.

On appeal, Pacific Fence contends the circuit court erred by:

(1) granting Kiewit's motion for partial summary judgment in 2007, which included the circuit court's holding that "[a]ny obligation Kiewit has to defend KIC and [Sato] passes through Kiewit, as a matter of law, to Pacific Fence[;]"

(2) granting KIC's motion for partial summary judgment in 2010, which included the circuit court's holding that "Pacific Fence had a joint and several duty to defend KIC from February 9, 2006[;]"

(3) granting KIC's motion regarding Coastal in 2010;

(4) granting KIC's motion regarding Design Partners;

(5) granting KIC's motion for partial summary judgment regarding Kiewit and Sato in 2010;

(6) granting Kiewit's motion in 2010, which included the circuit court's holding that "Kiewit's obligation to reimburse KIC and/or make future payments for KIC's defense fees and costs . . . [passed] through Kiewit as a matter of law to Pacific Fence[;]" and

(7) holding Pacific Fence was required to pay KIC fees and costs incurred for periods and in percentages set forth in an exhibit to the Amended Final Judgment.

Coastal contends the circuit court erred by holding:

(1) Coastal and Kiewit assumed KIC's contractual duty to defend DHHL in litigation and thus relieved KIC from obligations to defend DHHL;

(2) KIC's contractual duty to defend DHHL included defense of claims regarding the negligence or willful acts, omissions, failure to act, or misconduct of DHHL;

(3) Coastal was bound to defend DHHL against all claims asserted in litigation and not only against claims attributable to work by Coastal or its subcontractors; and

(4) Coastal had a contractual duty to defend DHHL in litigation brought by Arthur under a contract between KIC and Coastal.

Intermediate Court of Appeals

Nos. SCWC-30444, SCWC-30568, and SCWC-10-0000166 Thursday, Sept. 18, 2014, 8:45 a.m.

(SCWC-30444) STATE OF HAWAIʻI, CITY AND COUNTY OF HONOLULU; et al., Respondents/Complainants-Appellees-Appellees, vs. DAYTON NAKANELUA, State Director, et al., Petitioners/Respondents-Appellants-Appellants and HAWAIʻI LABOR RELATIONS BOARD; et al., Respondents/Agency-Appellees-Appellees.

(SCWC-30568) UNITED PUBLIC WORKERS, et al., Petitioner/Union-Appellee, Cross-Appellant, vs. STATE OF HAWAIʻI; THE JUDICIARY; et al., Respondents/Employers-Appellants, Cross-Appellees, and CITY AND COUNTY OF HONOLULU (2009-044), Respondent/Employer-Appellee.

(SCWC-10-0000166) STATE OF HAWAIʻI, CITY AND COUNTY OF HONOLULU; et al., Respondents/Complainants-Appellees-Appellees, vs. DAYTON NAKANELUA, State Director, et al., Petitioners/Respondents-Appellants-Appellants, and HAWAIʻI LABOR RELATIONS BOARD; et al., Respondents/Agency-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:

Herbert R. Takahashi, Rebecca L. Covert, and Davina W. Lam

Attorneys for Respondents State, the Judiciary and HHSC:

James E. Halvorson and Nelson Y. Nabeta, Deputy Attorneys General

Attorney for Respondents HLRB, Nicholson, etc.:

Valri Lei Kunimoto

NOTE: Certificate of recusal, by Associate Justice Sabrina S. McKenna, filed 06/20/14.

NOTE: Order assigning Circuit Court Judge Rom A. Trader, in place of McKenna, J., recused, filed 06/26/14.

NOTE: Order accepting Application for Writ of Certiorari, filed 07/15/14.

COURT: MER, C.J., PAN, RWP, & MDW, JJ., and Circuit Court Judge Trader in place of McKenna, J., recused.

Brief Description:

This is an appeal of three cases arising out of proceedings before the Hawaiʻi Labor Relations Board (HLRB) between several public employers and the United Public Workers (UPW) regarding the selection of a neutral arbitrator and allegations of prohibited practices.

UPW’s application raises the following four questions: (1) whether the ICA erred by misapplying the primary jurisdiction doctrine to conclude the HLRB had exclusive jurisdiction over the issues raised in this appeal; (2) whether the ICA erred by ignoring the clear legislative mandate in HRS § 658A-26, that the circuit court had exclusive jurisdiction over the controversy and parties to enforce an agreement to arbitrate and to enter judgment on the award to enforce the judgment; (3) whether the ICA erred by ignoring the parties’ arbitration agreement that the parties select the neutral arbitrator, and instead affirmed the HLRB’s order that directed the American Arbitration Association to make the selection; and (4) whether the ICA erred in affirming the HLRB’s conclusion of willful conduct by UPW without evidence of any conscious, knowing, and deliberate intent to violate the provisions of HRS chapter 89 while avoiding review as moot.

Supreme Court

No. SCWC-12-0001114, Thursday, Sept. 18, 2014, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. LAST KONY, 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:

Jon N. Ikenaga, Deputy Public Defender

Attorney for Respondent:

Donn Fudo, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 07/15/14.

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

Brief Description:

On June 2, 2014, Last Kony (Petitioner) timely filed an application for writ of certiorari (Application) to review the April 2, 2014 judgment of the Intermediate Court of Appeals (ICA), issued pursuant to its February 28, 2014 Summary Disposition Order, which affirmed the Judgment of Conviction and Sentence entered by the Circuit Court of the First Circuit (circuit court) on November 28, 2012.

Petitioner was charged with three counts of sexual assault in the first degree, in violation of HRS § 707-730(1)(c), and six counts of sexual assault in the third degree, in violation of HRS § 707-732(1)(c). During trial, the State elicited testimony from its expert witness regarding the general nature of child sex abuse, which included testimony regarding statistical percentage and behavioral evidence relating to characteristics of typical sex offenders and child victims. Following trial, Petitioner was convicted on six of the nine counts charged.

Petitioner timely filed a notice of appeal with the ICA, asserting that the circuit court erred in allowing the expert’s testimony regarding statistical and behavioral profile evidence of typical sex offenders and child victims because the testimony was (1) not relevant, (2) did not assist the jury, (3) improperly bolstered the complaining witness’s credibility, and (4) improperly profiled him as a sex offenders or, in the alternative, was misleading and highly prejudicial. The ICA majority rejected all four of Petitioner’s arguments. The ICA minority concurred in the majority’s disposition as to the first two points of error, but would have found that the latter two points of error should be measured by Hawaiʻi Rules of Evidence Rule 403. However, the minority concluded that the latter two points had been waived by Petitioner. The ICA affirmed the circuit court’s judgment.

In his Application, Petitioner contends that the ICA erred in its holding because the expert’s testimony was not relevant, did not assist the jury in understanding the dynamics of child sexual abuse, improperly bolstered the complaining witness’s credibility, and was unfairly prejudicial. In its response to the Application filed September 16, 2014, the State maintains that the expert’s testimony assisted the jury, did not improperly bolster the credibility of the complaining witness, was not unduly prejudicial, and Petitioner failed to object to any of the questions asked of the expert on the grounds that the answer would be prejudicial.

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