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Oral Arguments Schedule

Accommodation for a Disability

If you need an accommodation for a disability when participating in a court program, service, or activity, please contact the ADA Coordinator at the Supreme Court at phone number 539-4700 as far in advance as possible to allow time to provide an accommodation. You are also welcome to send an e-mail to adarequest@courts.hawaii.gov or complete the  Disability Accommodation Request Form. The Disability Accommodations Coordinator will try to provide, but cannot guarantee, the requested auxiliary aid, service, or accommodation.  


COVID-19 Protocols for In-Person Oral Arguments before the Hawaiʻi Supreme Court and Hawaiʻi Intermediate Court of Appeals

Effective April 11, 2023 (supersedes the oral argument protocols made effective January 3, 2023)

In-person oral arguments have resumed in the Hawaiʻi Supreme Court and the Intermediate Court of Appeals as of January 1, 2022. To ensure the continued safety of all participants, the following guidelines will be followed:

  1. Everyone entering Aliʻiolani Hale to attend oral argument must adhere to the building entry and screening requirements, which includes symptom-free conditions (e.g., no fever or chills, cough, shortness of breath or difficulty breathing, or other symptoms of respiratory illness) and no positive COVID-19 test result within 5 days of entry into the building. Additionally, everyone entering Aliʻiolani Hale will undergo a contactless temperature check at the time of entry. No one will be allowed into the building with a temperature over 100.4°F.
  2. Members of the public will be allowed to attend oral argument, subject to building entry and screening requirements and capacity restrictions.
  3. Face coverings are no longer required. However, in the event that circumstances warrant, the Chief Justice, Chief Clerk, Presiding Judge in an Oral Argument by the Intermediate Court of Appeals, or the Administrative Director of the Courts may require face coverings.
  4. Polycarbonate sheets have been constructed around the front and sides of the bailiff and law clerk seating area and may be used to cover the top surface of the podium. 
  5. Air cleaners will operate throughout the courtroom.
  6. There will be enhanced cleaning of key surfaces throughout the courtroom.

Oral Arguments 

Case Details

Court

No. SCWC-22-0000267, Thursday, March 21, 2024, 10 a.m.

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee, vs. ZETH BROWDER, Petitioner/Defendant-Appellant.

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

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television.

Attorney for Petitioner/Defendant-Appellant ZETH BROWDER:

     Walter J. Rodby

Attorney for Respondent/Plaintiff-Appellee STATE OF HAWAI‘I:

     Donn Fudo, Deputy Prosecuting Attorney  

NOTEOrder accepting Application for Writ of Certiorari, filed 02/22/24.

COURT:  Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

The State alleges Petitioner/Defendant-Appellant Zeth Browder (Browder) broke into the Complaining Witness’s (CW) camping tent and sexually assaulted her.  The State charged Browder with two counts of Sexual Assault in the First Degree, two counts of Sexual Assault in the Third Degree, one count of Burglary in the First Degree, one count of Kidnapping, and one count of Tampering with Physical Evidence.  After a jury trial in the Circuit Court of the Third Circuit, Browder was found guilty on all counts.

Browder appealed to the Intermediate Court of Appeals (ICA) and raised various issues, including that the Deputy Prosecuting Attorney (DPA) made improper statements during closing argument that constituted prosecutorial misconduct.  In a Memorandum Opinion issued on October 20, 2023, a majority of the ICA panel vacated Browder’s conviction on grounds that certain statements by the DPA were improper, but also concluded it was not prosecutorial misconduct when the DPA stated with regard to CW’s conduct after the incident that: “This is consistent with someone who’s been traumatized.”  In a concurring opinion, Associate Judge Katherine G. Leonard wrote that she agreed with vacating Browder’s conviction but would rely on the additional basis that the DPA committed prosecutorial misconduct by making the “traumatized” remark during closing argument, concluding the DPA’s remark and the circumstances were not distinguishable from State v. Hirata, 152 Hawai‘i 27, 520 P.3d 225 (2022).  The ICA’s judgment on appeal was entered on November 21, 2023.

Browder filed an application for writ of certiorari to this court, which we accepted.  The issue before this court is whether the ICA majority erred in concluding that the DPA’s “traumatized” remark did not constitute prosecutorial misconduct.

Supreme Court
No. SCWC-22-0000129, Thursday, March 21, 2024, 2 p.m.

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee, vs. PATRICK H. OKI, Petitioner/Defendant-Appellant.

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

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television.

Attorney for Petitioner/Defendant-Appellant PATRICK H. OKI:

     Taryn R. Tomasa, Deputy Public Defender

Attorney for Respondent/Plaintiff-Appellee STATE OF HAWAI‘I:

     Brian R. Vincent, Deputy Prosecuting Attorney  

NOTE Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 01/23/24.

NOTE Certificate of Recusal, by Associate Justice Vladimir P. Devens, filed 01/24/24.

NOTE:  Order assigning Circuit Judge Jeannette H. Castagnetti, and Circuit Judge Gary W.B. Chang, in place of Ginoza, J., recused, and Devens, J., recused, filed 01/30/24.

NOTE Order accepting Application for Writ of Certiorari, filed 02/08/24.

COURT:  Recktenwald, C.J., McKenna and Eddins, JJ., and Circuit Judge Castagnetti, in place of Ginoza, J., recused, and Circuit Judge Chang, in place of Devens, J., recused.

Brief Description:

This is the second round of appeals from defendant Patrick H. Oki’s (“Oki”) conviction for fraudulently obtaining money from a local accounting firm at which he was a managing partner. Oki was convicted of three counts of first-degree theft, one count of second-degree theft, three counts of money laundering, two counts of use of a computer in the commission of the thefts in the first degree, and four counts of second-degree forgery. Oki was sentenced to twenty years’ incarceration for the use of a computer counts; the next-longest terms were ten years. Oki was also ordered to pay restitution of $440,158.54, pursuant to statute during his incarceration and at a rate of at least $30 per month after his release.

Oki raises three issues on certiorari.  First, Oki challenges his convictions for use of a computer as illegal because after he was charged with the offenses, but before his trial and sentencing, the subsection under which he was convicted of those counts was repealed.  The act repealing the subsection, Act 231, contained a savings clause, which provided in relevant part, “This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date[.]” 2016 Haw. Sess. Laws Act 231, § 70 at 775-76. The Circuit Court of the First Circuit (“circuit court”) denied Oki’s motion to correct illegal sentence, and the ICA affirmed to the extent the circuit court determined Oki’s sentence was not illegal.  The ICA determined this case was similar to State v. Reis, 115 Hawai‘i 79, 165 P.3d 980 (2007), in which the Hawai‘i Supreme Court interpreted similar savings clause language and held that “proceedings” unambiguously meant prosecutions, and that a penalty is “incurred” at the time of the commission of an offense.  Oki argues he should benefit from the subsection’s repeal because his trial and sentencing “proceedings” had not yet begun before the act’s effective date, and he had not yet “incurred” any penalty since he had not been sentenced as of the act’s effective date.  Oki posits his case is similar to State v. Avilla, 69 Haw. 509, 750 P.2d 78 (1988), in which the Hawai‘i Supreme Court interpreted the “proceedings” savings clause language to mean “bail proceedings,” not prosecutions.  Second, Oki challenges the payment schedule in his restitution order.  Third, Oki argues the ICA erroneously held that its remand mandate in Oki’s first appeal “precluded” the circuit court from revisiting the amount of restitution on remand. 

Supreme Court

No. SCAP-22-0000699, Wednesday, April 3, 2024, 5 p.m.

HELG ADMINISTRATIVE SERVICES, LLC, as Conservator for CURTIS POMAIKAI PANOKE, a.k.a. CURTIS P. PANOKE, a.k.a. CURTIS PANOKE, an Incapacitated Person; and KATARINA HOKULANI PANOKE GEC, Plaintiffs-Appellees, vs. DEPARTMENT OF HEALTH, STATE OF HAWAI‘I; MARK A. FRIDOVICH, Ph.D.; WILLIAM P. SHEEHAN, M.D.; CHIYOME L. FUKINO, M.D.; LINDA ROSEN, M.D.; VIRGINIA PRESSLER, M.D., Defendants-Appellees, and GEO CARE, INC., GEO CARE, LLC, CORRECT CARE, LLC, CORRECT CARE SOLUTIONS, LLD dba THE COLUMBIA REGIONAL CARE CENTER, Defendants-Appellants.

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

William S. Richardson School of Law
Classroom 2 (Courtroom) and
         Classroom 3 (Overflow)
2515 Dole Street
Honolulu, HI 96822

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorneys for Defendants-Appellants GEO CARE, INC., GEO CARE, LLC, CORRECT CARE, LLC, CORRECT CARE SOLUTIONS, LLC dba THE COLUMBIA REGIONAL CARE CENTER:

          Jeffrey S. Portnoy, Trisha L. Nishimoto and Troy C. Young of Cades Schutte

Attorneys for Plaintiffs-Appellees HELG ADMINISTRATIVE SERVICES, LLC, as Conservator for CURTIS POMAIKAI PANOKE, aka CURTIS P. PANOKE, aka CURTIS PANOKE, an Incapacitated Person, and KATARINA HOKULANI PANOKE GEC:

          Matson Kelley and Alex Wilkins of the Law Offices of Kelley & Wilkins, LLC  

NOTE:  Order granting Application for Transfer, filed 03/13/23.

COURT:  Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

This appeal presents an important issue:  whether an adult child’s claim of loss of parental consortium is cognizable when the parent has not died but has entered a persistent vegetative state and will not recover.  

The defendants-appellants (Geo Care Inc, et al.) point to Halberg v. Young, 41 Haw. 634, 642 (1957), in which this court noted “no action exists in favor of a child for injuries sustained by the parent not resulting in the parent’s death.”  Halberg held that a minor child’s complaint for damages arising out of their mother’s disability for “loss of acts of kindness, care, attention and other incidents of the parent and child relationship” failed to state a claim upon which relief could be granted.

The plaintiffs-appellees (including the adult child of the individual now in a persistent vegetative state) point to Masaki v. General Motors Co., 71 Haw. 1, 22, 780 P.2d 566, 578 (1989), which held “that a parent may recover damages for the loss of filial consortium of an injured adult child.”  In Masaki, an adult was rendered a quadriplegic, and this court affirmed his parents’ damage award for loss of filial consortium, noting that “severe injury may have just as deleterious an impact on filial consortium as death.”  Masaki, 71 Haw. at 19-20, 566 P.2d at 577.  That case also footnoted the following observation, which appears to have left open the question as to whether Halberg‘s holding should be revisited:

In Halberg v. Young, 41 Haw. 634 (1957), we followed the traditional common-law rule and held that no cause of action exists in favor of a child for injuries sustained by his parents.  Appellants claim that our decision in Halberg is dispositive of the instant case because a parent’s claim for the lost consortium of a child is merely the reciprocal of a child’s claim for the lost consortium of his parents.  While we recognize that the two actions are analogous in many respects, the issue of parental consortium is not before us today.

Masaki, 71 Haw. at 19 n.8, 566 P.2d at 576 n.8.

The plaintiffs-appellees also argue that the United States District Court for the District of Hawaii interpreted Masaki to have implicitly overruled Halberg in order to recognize an adult child’s claim for loss of parental consortium when a parent is injured.  Marquardt v. United Airlines, 781 F. Supp. 1487, 1492 (D. Haw. 1992) (“It is this court’s considered judgment that if presented with the facts present here the Supreme Court of Hawaii would expressly overrule Halberg.  This court thus finds that a cause of action for loss of parental consortium now exists under Hawaii Law and that [the adult child] may maintain an action for the loss of consortium of her [injured] mother.”). See also Mettias v. U.S., 2015 WL 1931082 (D.Haw. Apr. 21, 2015) (following Marquardt).

This appeal provides this court with an opportunity to clarify Hawai‘i law on a cause of action that has been in dispute.

Supreme Court

No. SCAP-23-0000460, Tuesday, April 23, 2024, 10 a.m.

ALVIN F. JARDINE, III, Petitioner-Appellant, vs. STATE OF HAWAI‘I, Respondent-Appellee.

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

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorneys for Petitioner-Appellant ALVIN F. JARDINE, III:

Anthony P. Takitani, Gilbert S.C. Keith-Agaran, David M. Jorgensen, and Joseph L. Wildman of Takitani, Agaran, Jorgensen & Wildman, LLLP; Matson Kelley and Alex Wilkins of Kelley & Wilkins

Attorneys for Respondent-Appellee STATE OF HAWAI‘I:

Kaliko‘onālani D. Fernandes, Solicitor General, and Ewan C. Rayner, Deputy Solicitor General

NOTEOrder granting Application for Transfer, filed 10/26/23.

COURTRecktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

In 1992, Alvin F. Jardine, III, was sentenced to thirty-five years of imprisonment after a jury convicted him of ten felony counts, four of which were for Sexual Assault in the First Degree.  In 2010, Jardine filed a Hawai‘i Rules of Penal Procedure Rule 40 petition for post-conviction relief seeking a new trial based on new DNA evidence.  The circuit court granted his petition, vacated his conviction, and ordered a new trial.  Later that year, the Maui Prosecuting Attorney filed a motion to dismiss the case with prejudice.

In 2021, Jardine filed a petition seeking compensation for his allegedly wrongful conviction under Hawai‘i Revised Statutes (“HRS”) § 661B.  HRS § 661B-1(b) states that to present an actionable claim, a petitioner must allege “[t]he judgment of conviction was reversed or vacated because the petitioner was actually innocent of the crimes for which the petitioner was convicted, and the court decision so states[.]” 

Both Jardine and the State moved for summary judgment.  The circuit court ruled in favor of the State.  It concluded that Jardine’s petition failed to allege an actionable claim because he was not “conclusively excluded” as the perpetrator of the crimes and the 2011 vacatur order did not state Jardine was “actually innocent.”  Jardine appealed to the Intermediate Court of Appeals and applied for transfer to this court, which we accepted.

Jardine argues that he is eligible for compensation under HRS § 661B because the vacatur of his conviction was based on evidence of his actual innocence and he meets the other statutory requirements.  The State argues that Jardine fails to demonstrate he has an actionable HRS § 661B claim because the vacatur of his conviction was not based on a finding equivalent to actual innocence.

Supreme Court

No. SCWC-22-0000468, Wednesday, April 24, 2024, 10 a.m.

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee, vs. JOHN SING, Petitioner/Defendant-Appellant, and ABRAHAM SIONESINI, Defendant-Appellee.

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

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television at olelo.org/tv-schedule/.

Attorney for Petitioner/Defendant-Appellant JOHN SING:

     Daniel Kawamoto of the Law Office of Daniel Kawamoto

Attorney for Respondent/Plaintiff-Appellee STATE OF HAWAI‘I:

     Robert T. Nakatsuji, Deputy Prosecuting Attorney  

NOTE:  Order accepting Application for Writ of Certiorari, filed 01/18/24.

COURT:  Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

John Sing was charged with Robbery in the Second Degree under Hawai‘i Revised Statutes § 708-841(1)(a).  His indictment alleged that in November 2019 “while in the course of committing theft, [Sing] did use force against . . . a person who was present, with the intent to overcome [that person’s] physical resistance or physical power of resistance.”

At trial, the circuit court instructed the jury on Robbery in the Second Degree and Attempted Robbery in the Second Degree.  The jury did not convict Sing of Robbery in the Second Degree but convicted him of Attempted Robbery in the Second Degree. 

Sing appealed to the Intermediate Court of Appeals (ICA).  He argued that the trial court erred by instructing the jury on the Attempted Robbery in the Second Degree and that his conviction for Attempted Robbery in the Second Degree was not supported by sufficient evidence.  The State argued that his conviction should be affirmed because the circuit court properly instructed the jury on Attempted Robbery in the Second Degree.

The ICA affirmed Sing’s conviction, holding that Attempted Robbery is an included offense of Robbery.

Sing now asks this court to reverse his conviction, arguing that Attempted Robbery in the Second Degree is not a cognizable crime, or alternatively, there was insufficient evidence at trial to support his conviction of Attempted Robbery in the Second Degree. 

Supreme Court

No. SCWC-21-0000679, Friday, April 26, 2024, 10 a.m.

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee, vs. CHARLES TUNG MING YUEN, Petitioner/Defendant-Appellant.

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

Kailua High School Gymnasium
451 Ulumanu Drive
Kailua, HI 96734

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television at olelo.org/tv-schedule/.

Attorney for Petitioner CHARLES TUNG MING YUEN:

      Alen M. K. Kaneshiro of the Law Offices of Alen M. K. Kaneshiro

Attorney for Respondent STATE OF HAWAI‘I:

      Brian R. Vincent, Deputy Prosecuting Attorney  

NOTE Order accepting Application for Writ of Certiorari, filed 01/30/24.

COURT:  Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

Defendant-Appellant Charles Yuen is alleged to have rear-ended another car 50 feet outside of the O’Malley Gate of the Hickam Air Force Base.  Military officers apparently came to the scene, administered a standard field sobriety test (“SFST”) on Yuen, and called the Honolulu Police Department (“HPD”).  HPD officers then arrived, conducted their own SFST, and then arrested Yuen for operating a vehicle under the influence of an intoxicant (“OVUII”).

None of the military officers testified at trial, and their SFST was not introduced as evidence.  HPD officers testified to observing Yuen experience signs of intoxication upon arriving at the scene.  The District Court of the First Circuit found Yuen guilty of OVUII.  The Intermediate Court of Appeals affirmed. On certiorari, Yuen asserts the ICA erred in holding that: (1) Yuen’s trial counsel was not ineffective for not filing a motion to suppress under article I, section 7 of the Hawai‘i Constitution and the Posse Comitatus Act under 18 U.S.C. § 1385 (1994), which generally prevents military officers from participating in civilian law enforcement; and (2) substantial evidence existed to support Yuen’s conviction for OVUII.

Supreme Court

No. SCWC-22-0000499, Tuesday, April 30, 2024, 2 p.m.

STATE OF HAWAI‘I, Petitioner/Plaintiff-Appellee, vs. ALEXANDER AQUINO, Respondent/Defendant-Appellant.

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

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television at olelo.org/tv-schedule/.

Attorney for Petitioner/Plaintiff-Appellee STATE OF HAWAI‘I:

     Charles E. Murray III, Deputy Prosecuting Attorney

Attorney for Respondent/Defendant-Appellant ALEXANDER AQUINO:

     R. Hermann Heimgartner

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 01/23/24.

NOTE:     Order assigning Circuit Judge Rowena A. Somerville, in place of Ginoza, J., recused, filed 01/26/24.

NOTE:     Order accepting Application for Writ of Certiorari, filed 02/07/24.

COURT:    Recktenwald, C.J., McKenna, Eddins, and Devens, JJ., and Circuit Judge Somerville, in place of Ginoza, J., recused

Brief Description:

On September 14, 2021, the County of Hawaiʻi Office of the Prosecuting Attorney charged Alexander Aquino via information with unlawful imprisonment in the first degree in violation of Hawaiʻi Revised Statutes (HRS) § 707-721(1)(a) (2014).

In a motion to dismiss, Aquino argued the charging document was defective because it omitted the definition of “restrain”:

“Restrain” means to restrict a person’s movement in such a manner as to interfere substantially with the person’s liberty:

(1)     By means of force, threat, or deception; or

(2)     If the person is under the age of eighteen or incompetent, without the consent of the relative, person, or institution having lawful custody of the person.

HRS § 707-700 (2014).

After a bench trial, the Circuit Court of the Third Circuit denied Aquino’s motion and found him guilty of unlawful imprisonment in the first degree.

On appeal, the Intermediate Court of Appeals vacated the circuit court’s judgment of conviction and sentence and remanded for dismissal with prejudice.  The ICA held that the charging document was defective because it omitted the definition of “restrain” relating to parental consent.  The ICA also held the State failed to present sufficient evidence to support Aquino’s unlawful imprisonment conviction.

In its application for a writ of certiorari, the State asserts the ICA gravely erred in holding: (1) the charging document was insufficient and (2) Aquino’s conviction was not supported by sufficient evidence.

Supreme Court

No. SCAP-22-0000371, Thursday, May 16, 2024, 2 p.m.

LINDA K. ROSEHILL, Trustee of the Linda K. Rosehill Revocable Trust dated August 29, 1989, as amended; MARK B. CHESEBRO and CAROLINE MITCHEL, Trustees of the First Amendment and Restatement of the 1999 Mark Brendan Chesebro and Caroline Mitchel Revocable Trust U/D/T dated January 6, 1999; SOMTIDA S. SALIM, Trustee of the Somtida Salim Living Trust dated February 15, 2007; TODD M. MOSES; PSALMS 133 LLC; JOHN T. FENTON, Trustee of the John T. Fenton Revocable Trust dated February 27, 2014; FRANCES T. FENTON, Trustee of the Frances T. Fenton Revocable Trust dated February 27, 2014; DIRK AND LAURA BELLAMY HAIN, Trustees of the Bellamy-Hain Family Trust dated September 13, 2017; PETER A. GUNAWAN; JANTI SUTEDJA; NEIL ALMSTEAD; DOYLE LAND PARTNERSHIP; CHARLES E. and NANCY E. ROSEBROOK; MICHAEL CORY and EUGENIA MASTON; PAUL T. and DELAYNE M. JENNINGS, Trustees of the Jennings Family Revocable Trust dated January 5, 2010; MAGGHOLM PROPERTIES LLC; NETTLETON S. and DIANE E. PAYNE, III, Appellants-Appellees, vs. STATE OF HAWAI‘I, LAND USE COMMISSION, Appellee-Appellant, and COUNTY OF HAWAI‘I, Appellee-Appellee.

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

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television at olelo.org/tv-schedule/.

Attorneys for Appellee-Appellant STATE OF HAWAI‘I LAND USE COMMISSION:

Julie H. China, Deputy Attorney General; Douglas S. Chin, Christina N. Ohira, Eric S. Robinson, Cori J. Terayama of Starn O’Toole Marcus & Fisher, Special Deputy Attorneys General

Attorneys for Appellants-Appellees LINDA K. ROSEHILL, et al.:

Roy A. Vitousek, III, Calvert G. Chipchase, Christopher T. Goodin, and Katherine E. Bruce of Cades Schutte

Attorneys for Appellee-Appellee COUNTY OF HAWAI‘I:

Mark D. Disher and Jean Campbell, Deputies Corporation Counsel

NOTE: Order assigning Circuit Judge Gary W.B. Chang and Circuit Judge Jeannette H. Castagnetti due to vacancies, filed 06/05/23.

NOTE: Order granting Application for Transfer, filed 06/08/23.

NOTE: Order granting request to continue oral scheduled for 02/22/24 to a later date, filed 02/07/24.

NOTE: Amended order assigning Associate Justice Lisa M. Ginoza, in place of Judge Chang, filed 02/15/24.

COURT: Recktenwald, C.J., McKenna, Eddins, and Ginoza, JJ., and Circuit Judge Castagnetti, assigned by reason of vacancy

Brief Description:

The County of Hawai‘i’s zoning code regulates the development and use of land within the county. On April 1, 2019, the County amended its zoning code to regulate the use of short-term vacation rentals by requiring owners to register and obtain nonconforming use certificates from the County Planning Department. Any person that operates a short-term vacation rental without a certificate is subject to criminal prosecution and administrative penalties. Hawai‘i County Code (HCC) §§ 25-4-16(b)(7), 25-2-31, 25-2-35. Under HCC § 25-4-16.1(e), a nonconforming use certificate may only be issued for single-family dwellings on lots existing before June 4, 1976.

The County denied the Rosehill petitioners’ requests for non-conforming use certificates for short-term vacation. The Rosehill petitioners then challenged the County’s actions in administrative proceedings before the County Board of Appeals. The parties stipulated to stay the proceedings before the County Board of Appeals and both filed petitions with the Land Use Commission asking whether a short-term vacation rental of less than thirty-one days is a permissible use of a “farm dwelling” in the agriculture district. The Commission consolidated the cases and issued a Declaratory Order denying the Rosehill Petition and granting the County Petition, concluding that the County met its burden of demonstrating that short-term vacation rentals as defined by the County’s ordinances were not consistent with the elements of a “farm dwelling” as defined by HRS § 205-4.5(a)(4). The Rosehill petitioners appealed the Land Use Commission’s Order to the Circuit Court of the Third Circuit, which reversed the decision of the Commission. The Circuit Court concluded that (1) the definition of farm dwelling did not prohibit rentals of less than 31 days and (2) the Commission abused its discretion by denying the Rosehill petition as “speculative or purely hypothetical.”

In June 2022, the Commission appealed the decision to the Intermediate Court of Appeals. In March 2023, this Court issued its decision in Matter of Kanahele, 152 Hawai‘i 501 (2023), holding that declaratory orders entered by the Land Use Commission have the “same status” for judicial review as orders in contested cases under Hawai‘i law. The Rosehill petitioners then applied for transfer to this court, and we granted transfer in June 2023.

The case primarily presents two questions: (1) whether the agency appeal can be transferred from one appellate court to another in light of Kanahele; and (2) whether a short-term vacation rental is a permitted use of a “farm dwelling” in the agricultural district.

Supreme Court

No. SCAP-23-0000310, Tuesday, June 25, 2024, 10 a.m.

HILO BAY MARINA, LLC, and KEAUKAHA MINISTRY LLC, Plaintiffs-Appellants, vs. STATE OF HAWAI‘I; BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I, Defendants-Appellees.

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

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

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.

Attorneys for Plaintiffs-Appellants HILO BAY MARINA, LLC, and KEAUKAHA MINITRY LLC:

          Kenneth R. Kupchak and Clint K. Hamada of Damon Key Leong Kupchak Hastert

Attorneys for Defendants-Appellees STATE OF HAWAI‘I and BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I:

Julie H. China and Miranda C. Steed, Deputy Attorneys General  

NOTEOrder granting Application for Transfer, filed 01/16/24.

NOTE:  Order granting motion to continue oral argument from 04/03/24 to 06/25/24 at 10:00 a.m., filed 02/27/24.

COURTRecktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

In 1922, the Territory of Hawai‘i sold property to Heber J. Grant, trustee for the Church of Jesus Christ of Latter-Day Saints, pursuant to a Land Patent.  The Land Patent contained a restriction requiring the property be used “for Church purposes only” and a reversionary interest to the Territory if the property is “used for other than Church purposes” (Deed Restriction).

Plaintiffs-Appellants Hilo Bay Marina, LLC and Keaukaha Ministry LLC (Petitioners) are the current owners of the property.  Petitioners sued Defendants-Appellees State of Hawai‘i and Board of Land and Natural Resources, State of Hawai‘i (State) in the Circuit Court of the Third Circuit (Circuit Court) asserting the Deed Restriction is void under Hawai‘i Revised Statutes (HRS) § 515-6(b), it violates article I, section 4 and article VII, section 4 of the Hawai‘i Constitution, and it violates the Establishment Clause of the First Amendment to the United States Constitution.

The parties filed cross-motions for summary judgment and the Circuit Court granted summary judgment for the State.  Petitioners appealed and the appeal was transferred to this Court.

Petitioners assert the Circuit Court erred by concluding:

(1) The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning;

(2) HRS § 515-6(b) does not void the deed restriction;

(3) the deed restriction does not violate article I, section 4 of the Hawai‘i Constitution for the same reasons that it does not violate the Establishment Clause of the First Amendment to the United States Constitution, and even if article I, section 4 of the Hawai‘i Constitution is not coextensive with the Establishment Clause in the United States Constitution, the deed restriction passes constitutional muster under Lemon v. Kurtzman, 403 U.S. 602 (1971); and

(4) the deed restriction does not violate the Establishment Clause in the United States Constitution.

Supreme Court

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