Oral Arguments Schedule

No. SCOT-19-0000044, Thursday, January 23, 2020, 8:45 a.m.

In the Matter of the Application of

THE GAS COMPANY, LLC, dba HAWAII GAS

For Approval of Rate Increases and Revised Rate Schedules and Rules.

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

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

Attorney for Appellant, Life of the Land and Hui Aloha ina o ka Lei Maile Ali i:

Lance D. Collins

Attorneys for Appellee, The Gas Company, LLC dba Hawaii Gas:

Jeffrey T. Ono, David Y. Nakashima, and John E. Dubiel of
Watanabe Ing

Attorneys for Appellee, Public Utilities Commission:

Bryan C. Yee and Andrew D. Goff, Deputy Attorneys General

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

In this Act 48 agency appeal, Life of the Land (“LOL”) and Hui Aloha ina o ka Lei Maile Ali i (“HAA KLMA”) appeal from the Public Utilities Commission’s (“PUC”) final “Decision and Order No. 35969.”　 　

The Decision and Order adjudicated a rate case initiated by Hawaii Gas Company (“HG”), which sought rate increases due to its importation of liquid natural gas (“LNG”).　LOL and HAA KLMA sought to intervene, but the PUC granted them only participant status, limited to the following issue:

1. Whether [HG’s] proposed rate increase is reasonable, including, but not limited to:

. . . .

h. With respect to [HG’s] purchase and use of imported [liquefied natural gas (“LNG”)] as part of its gas utility operations, HRS § 269-6(b)’s requirement that:

In making determinations of the reasonableness of the costs of utility system capital improvements and operations, the commission shall explicitly consider, quantitatively or qualitatively, the effect of the State’s reliance on fossil fuels . . . and greenhouse gas emissions. The commission may determine that short-term costs or direct costs that are higher than alternatives relying more heavily on fossil fuels are reasonable, considering the impacts resulting from the use of fossil fuels.

In effect, whether the commission should disallow as unreasonable [HG’s] LNG costs due to the effects of [HG’s] use of imported LNG on the State’s reliance on fossil fuels and greenhouse gas emissions.

The PUC also expressly considered the following issue to be “outside the scope of this rate proceeding”: “The participants’ asserted interested in a clean and healthful environment beyond the State’s borders, given the Hawaii Constitution’s limited application and scope to a clean and healthful environment within the State’s borders.”

The PUC ultimately approved the rate increase.　On appeal, LOL and HAA KLMA raise the following points of error:

(1) the PUC failed to explicitly consider, quantitatively or qualitatively, the effect of the State’s reliance on fossil fuels on price volatility, export of funds for fuel imports, fuel supply reliability risk, and GHG emissions, including hidden and long term costs, in determining the reasonableness of the costs of utility system capital improvements and operations under HG’s application in violation of HRS §269-6(b) and Appellants’ due process rights therein.

(i) the PUC determined it need not address GHG emissions released beyond the borders of the State under article XV, §1 of the Hawaii Constitution and Admission Act §2 as a result of its approval of the

HG application, despite HG’s application inclusion of projects requiring importation of LNG from the U.S. mainland.　 Consequently, PUC did not consider the long term and hidden costs of reliance on fossil fuels and consequent GHG emissions in approving HG’s application. 　

(ii) the PUC’s Order did not explicitly consider the hidden and long term costs of fossil fuel use or GHG emissions, and rather recited HG’s assertions concerning the comparative GHG emissions of those portions of operations taking place in
Hawaii. 　

(iii) the PUC’s Order relied on HG’s assertion that Appellants failed to adduce evidence that HG’s LNG projects will increase GHG emissions.　This error was compounded because PUC had permitted HG to redact, render confidential, or refuse to provide responses on items pertinent to GHG emissions released within Hawaii. HG heavily redacted many of its submissions and responses to IRs.　HG refused to answer Appellants’ information requests (IRs).　

(iv) the PUC’s Order summarized Appellants’ testimony, which was contrary to HG’s assertions on GHG emissions, and concluded the former was not credible in support of its ultimate conclusions.　

(2) the PUC denied Appellants a meaningful opportunity to be heard and violated their rights to due process (U.S. Const., amend. V; Haw. Const. art. I, §5 & art. XI, §9)

by: 　

(i) restricting Appellants to “participant” status

and limiting their involvement to subissue 1.h and specifying as “outside the scope of their participation” many matters Appellants’ raised to protect their rights and interests.　

　(ii) permitting HG to omit submission of information relating to GHG emissions in their application, finding Appellants failed to raise contrary information, and then concluding Appellants’ due process rights to raise their rights to a clean and healthy environment were satisfied. 　

(iii) adopting and incorporating findings from separate PUC proceedings to which Appellants were not full parties or intervenors and incorrectly interpreting the doctrine of issue preclusion to support the Order, and thereby violating Appellants’ due process rights.

　　
(3) the PUC’s Order employed rules that were not promulgated as required by HRS §91-3.　The methodology by which PUC analyzes and assesses GHG emissions constitutes a statement of general applicability that affects the private rights of and procedures available to the public and therefore constitutes a “rule.”　HRS § 91-1.　PUC’s use of such a rule is reasonably foreseeable under HRS §269-6(b), yet this rule was not promulgated under HRS §91-3. 　　
　
(4) PUC failed to identify traditional and customary practices that may be affected by its Order, to assess potential impacts of its Order on those practices, or to identify feasible protections for affected practices as required under article XII, §7 of the Hawaii Constitution.

(5) PUC failed to fulfill its obligations as a trustee of public trust resources, which include air and other environmental resources under article XI, § 1 of the Hawaii Constitution.

No. SCAP-18-0000732, Thursday, January 23, 2020, 10 a.m.

In the Matter of UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO, Complainant-Appellee-Appellant, vs. CHRISTINA M. KISHIMOTO, Superintendent, Department of Education, State of Hawaii; and CONNECTIONS, A New Century Public Charter School, Appellants-Appellees, and HAWAII LABOR RELATIONS BOARD; SESNITA A.D. MOEPONO and J.N. MUSTO (2003-027), Agency-Appellees-Appellees.

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

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

Attorneys for Appellant UPW:

Herbert R. Takahashi and Rebecca L. Covert of Takahashi and Covert

Attorneys for Appellees Kishimoto, et al.:

James E. Halvorson and Jeffrey A. Keating, Deputy Attorneys General

NOTE: Order granting Application for Transfer, filed 07/02/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

This case concerns the non-renewal of a custodial position at a public charter school. From 2000 to 2003, an employee worked as the custodian at a public charter school on the island of Hawaii. When his employment status changed from part-time to full-time, the employee became a member of bargaining unit　1 of Petitioner/Complainant-Appellee-Appellant United Public Workers, AFSCME, Local 646, AFL-CIO (collectively “UPW”). Each year, the public charter school renewed the employee’s position until May of 2003, when his position was non-renewed because of budget cuts.

UPW filed a prohibited practices action with Appellee-Appellee Hawaii Labor Relations Board (HLRB) challenging the non-renewal of the employee’s position. The HLRB granted summary judgment in favor of UPW, finding that the employee fell within the class of affected public charter school employees which the DOE had agreed to restore to civil service status in a stipulated settlement with UPW and other affiliated entities. The HLRB ordered the employee’s reinstatement.

The DOE appealed the HLRB’s decision to the Circuit Court of the Third Circuit (circuit court). The circuit court vacated the HLRB’s order because it found disputed issues of material fact as to the employee’s status as a member of UPW’s bargaining unit 1 and whether the employee was intended to be in the class of workers covered by the stipulation between the DOE and UPW.

This appeal arises from two decisions by the HLRB after the case was remanded by the circuit court. First, the HLRB denied UPW’s motion to amend its complaint to add additional claims against the DOE and the charter school. Second, the HLRB dismissed UPW’s complaint entirely because it found that (1) it lacked jurisdiction over the complaint because the employee failed to exhaust his contractual remedies by first filing a grievance; and (2) the employee was not within the class of workers covered by the stipulation between the DOE and UPW.

UPW appealed the HLRB’s decision to the circuit court, which affirmed the HLRB’s decision.

UPW appealed the circuit court’s decision to the Intermediate Court of Appeals, and the case was transferred to this court. On secondary appeal, UPW argues that the circuit court erred by: (1) vacating the HLRB’s grant of summary judgment in favor of UPW and then affirming the HLRB’s later conclusion that the employee was not covered by the stipulation between the DOE and UPW; (2) failing to address UPW’s argument that if the employee was not a civil service employee, the charter school was still required to bargain with UPW prior to removing his position from bargaining unit 1; (3) affirming the HLRB’s decision that it lacked jurisdiction over the employee’s claim; and (4) affirming the denial of UPW’s motion to amend its complaint.

No. SCWC-16-0000570, Thursday, January 23, 2020, 11:15 a.m.

SHADLEY HAYNES; KURSTIN HAYNES, Individually and as Parent and Legal Guardian of Minor children JH and NH; THE OTHER SIDE – ROCKSTARZ – LLC, Petitioners/Plaintiffs-Appellants, vs. GREGORY FOWLER HAAS; FPA GOLD COAST ASSOCIATES, LLC; CLARK REALTY CORPORATION; KONA METRO PARKING & WATCHMAN SERVICES, INC.; ALLIED SELF STORAGE CENTER; GUIDO GIACOMETTI; CHUNG PARTNERS, Respondents/Defendants-
Appellees.

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

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

Attorneys for Petitioners:

James J. Bickerton and Bridget G. Morgan-Bickerton of Bickerton Law Group LLLP

Attorneys for Respondents Chung Partners:

Gregory K. Markham, Keith K. Kato, and Kristen K. Souza of Chee Markham & Feldman

NOTE: Order accepting Application for Writ of Certiorari, filed 09/11/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

Plaintiff Shadley Haynes sued Defendants Gregory Haas, Allied Self Storage, and Chung Partners for damages Haynes suffered after Haas allegedly assaulted him on December 24, 2011. The assault took place outside Rockstarz, the bar Haynes’ family owned, which was down the street from Allied. According to Haynes, Chung leased land to Allied, which operated a self-storage business where some individuals, including Haas, lived illegally. Haynes claimed Allied was aware of individuals living in the units; Allied maintained that there was no evidence presented to establish its awareness.

Haynes sought to recover damages based on the theory that Allied created a public nuisance by allowing homeless individuals to reside in the storage units. The ICA held that, as a matter of law, Chung and Allied could not be held liable for monetary damages for Haynes’ injuries under a public nuisance theory.

Haynes’ application for the writ of certiorari presents two questions:

1. Whether the ICA gravely erred by affirming the circuit court’s grant of summary judgment on the basis that Haynes could not recover monetary damages in the absence of a statute defining Allied’s and Chung’s conduct as a nuisance; and

2. Whether the ICA gravely erred by affirming the circuit court’s award of costs to Allied and Chung.

No. SCWC-17-0000176, Thursday, March 5, 2020, 8:45 a.m.

CAMBRIDGE MANAGEMENT INC., Respondent/Plaintiff-Appellee, vs. NICOLE JADAN, Petitioner/Defendant-Appellant.

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

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

Attorneys for Petitioner:

Gary Victor Dubin and Frederick J. Arensmeyer of Dubin Law Offices

Attorney for Respondent:

Michael A. Glenn

NOTE: Order accepting Application for Writ of Certiorari, filed 07/16/19.

NOTE: Amended notice of setting for oral argument due to rescheduling from 02/20/20 to 03/05/20, 8:45 a.m., filed 12/17/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

Respondent/Plaintiff-Appellee Cambridge Management executed a lease agreement on an apartment unit with Petitioner/Defendant-Appellant Nicole Jadan. After Jadan gave written notice that she intended to terminate the lease early, but failed to timely vacate the unit, Cambridge Management brought an action for a writ of possession on the apartment in the District Court of the First Circuit. Jadan brought a counter-claim for property damage. After trials on each claim, Cambridge Management prevailed.

Jadan, who was pro se for most of the proceedings, requested a Polish interpreter several times at the district court and again on appeal to the Intermediate Court of Appeals (ICA). Jadan asserts that Polish is her first language. No language assistance was ultimately provided. She now challenges the District Court’s and ICA’s decisions not to provide her with language assistance throughout the proceedings. She also challenges the district court’s judgments in favor of Cambridge Management on the merits.

No. SCWC-16-0000071, Thursday, March 5, 2020, 10 a.m.

HEALOHA CARMICHAEL, LEZLEY JACINTHO, and NĀ MOKU AUPUNI O KO OLAU HUI, Petitioners/Plaintiffs-Appellees/Cross-Appellees/Cross-Appellants, vs. BOARD OF LAND AND NATURAL RESOURCES, SUZANNE CASE, in her official capacity as Chairperson of the Board of Land and Natural Resources, the DEPARTMENT OF LAND AND NATURAL RESOURCES, Respondents/Defendants-Appellees/Cross-Appellees/Cross-Appellants, and ALEXANDER & BALDWIN, INC., EAST MAUI IRRIGATION CO., LTD., and HAWAIIAN COMMERCIAL AND SUGAR CO., Respondents/Defendants-Appellants/Cross-Appellees, and COUNTY OF MAUI, DEPARTMENT OF WATER SUPPLY, Respondent/Defendant-Appellee/Cross-Appellant/Cross-Appellee.

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

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

Attorneys for Petitioners Healoha Carmichael, et al.:

Summer L.H. Sylva, David Kauila Kopper, Camille K. Kalama, and Alan T. Murakami of Native Hawaiian Legal Corporation

Attorneys for Respondents Alexander & Baldwin, Inc., et al.:

David Schulmeister and Trisha H.S.T. Akagi of Cades Schutte LLP

Attorneys for Respondents Board of Land and Natural Resources, et al.:

William J. Wynhoff and Linda L.W. Chow, Deputy Attorneys General

Attorneys for Respondents County of Maui, et al.:

Moana M. Lutey, Corporation Counsel; Caleb P. Rowe and Kristin K. Tarnstrom, Deputies Corporation Counsel

NOTE: Order accepting Application for Writ of Certiorari, filed 11/25/19.

NOTE: Order granting motion for postponement of oral argument from 01/09/20 to 03/05/20 at 10:00 a.m., filed 12/18/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

In 2000, the Board of Land and Natural Resources (“the BLNR”) issued four annual revocable water permits to Alexander & Baldwin, Inc. (“A&B”) and its subsidiary, East Maui Irrigation Co., Ltd. (“EMI”), giving them the right to develop, divert, and use water from four areas of the Ko olau Forest Reserve in East Maui. In 2001 and 2002, the BLNR voted to “hold over” these permits pending the resolution of a contested case concerning A&B and EMI’s application for a long-term lease of the land. Beginning in 2005, the BLNR annually voted to “continue” A&B and EMI’s permits for one additional year at a time.

After the BLNR voted to continue the permits in 2014, Healoha Carmichael, Lezley Jacintho, and N Moku Aupuni O Ko olau Hui filed a complaint for declaratory and injunctive relief, seeking to have the permits invalidated on the basis that they should not have been continued without preparation of an environmental assessment pursuant to the Hawai i Environmental Policy Act (“HEPA”), Hawai i Revised Statutes (“HRS”) Chapter 343. The plaintiffs moved for partial summary judgment, which the Circuit Court of the First Circuit (“circuit court”) granted, holding that, while continuation of the permits did not trigger the requirements of HEPA, continuous uninterrupted use of the land violated the requirements of the public lands management statute, HRS Chapter 171.

The defendants—the BLNR, the Department of Land and Natural Resources, BLNR chair Suzanne Case, A&B, EMI, Hawaiian Commercial and Sugar Co., and the Maui County Department of Water Supply—appealed the circuit court’s decision to the Intermediate Court of Appeals (“ICA”). The ICA vacated the circuit court’s order, holding that continuation of the permits was authorized under HRS § 171-55, notwithstanding limits imposed by HRS § 171-58 or HEPA, but that there were disputed factual issues that precluded a grant of summary judgment. The plaintiffs filed an application for writ of certiorari with this court, presenting the following questions for our review:

1. Does HRS chapter 343 apply to BLNR’s decision to continuously renew revocable permits authorizing the daily use of public lands to divert millions of gallons of water on a holdover basis for over a decade and counting?

2. Does HRS § 171-55 allow for the renewal of revocable permits for the use of state land and water indefinitely despite the maximum term of one year prescribed by HRS § 171-58 for the disposition of water rights specifically?

3. Did the Circuit Court err by refusing to grant summary judgment to Petitioners on the grounds set forth in counts 1 and 2 of their First Amended Complaint?

4. Did the ICA err by concluding HRS § 171-55’s “notwithstanding any other law to the contrary” language nullifies (a) the maximum term of one year prescribed by HRS § 171-58 for “temporary” revocable permits and (b) HRS chapter 343 EA and environmental impact statement (EIS) requirements for “temporary” revocable permits where such interpretations conflict with well-settled case law, are unsupported by the legislative history, and run contrary to the plain meaning of the statutes?

5. Did the ICA err by refusing to rule that BLNR’s decision to renew the Revocable Permits on a holdover basis violated HRS chapter 171-55 as a matter of law due to BLNR’s failure to make findings that the permits are “temporary” and serve the “best interests of the State”?

No. SCAP-18-0000632 – Thursday, March 5, 2020, 11:15 A.M.

STATE OF HAWAII, Plaintiff-Appellee, vs. KOMA KEKOA TEXEIRA, JR., Defendant-Appellant, and CLAYTON KALANI KONA, Defendant-Appellee.

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

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

Attorneys for Appellant:

Craig A. De Costa and Daniel G. Hempey of De Costa Hempey LLC

Attorney for Appellee:

Tracy Murakami, Deputy Prosecuting Attorney

NOTE: Order granting Application for Transfer, filed 10/01/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

Koma Kekoa Texeira, Jr., appeals from his convictions for murder in the second degree, carrying or use of firearm in the commission of a separate felony, and ownership or possession prohibited. Texeira raises three issues on appeal of this case, which was accepted for transfer by the supreme court.

First, Texeira contends that the circuit court erred by excluding evidence of the alleged involvement of a third person in the murder. Texeira sought to introduce evidence that a third party had a motive to commit the offense, had access to the weapon and bullets that killed the victim, and either committed the murder or ordered it. The State responds that the evidence was too tenuous to provide a sufficient nexus to the crime, and that evidence of motive alone is inadequate to permit the introduction of third-party perpetrator evidence.

Second, Texeira argues that the court erred in admitting into evidence a confession letter that he allegedly wrote. The letter was provided to the defense on the eve of trial, and Texeira thus submits that it should have been excluded at trial under the penal rules governing late discovery disclosures. The State answers that it fulfilled its discovery obligations because Texeira was made aware of the letter’s existence months prior to trial, and the State produced the letter as soon as it obtained custody of it.

Third, Texeira contends that the court erred in admitting DNA evidence that placed him at the crime scene. Texeira maintains that the State must show the DNA testing was conducted in accordance with the manufacturer’s specifications before the test results can be introduced into evidence. The State responds that the DNA evidence was properly admitted at trial as the State established that the testing lab was assessed, examined, and audited pursuant to FBI guidelines and properly accredited by the American Society of Crime Lab Directors.

No. SCWC-16-0000345, Thursday, March 12, 2020, 8:45 a.m.

STATE OF HAWAII, Respondent/Plaintiff-Appellee, vs. MAXWELL F. JONES, Petitioner/Defendant-Appellant.

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

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

Attorney for Petitioner:

Michael S. Zola
Attorney for Respondent:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 11/06/19.

NOTE: Order granting motion for postponement of oral argument from 01/09/20 to 03/12/20 at 8:45 a.m., filed 12/17/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

Petitioner/Defendant Maxwell Jones was pulled over after running a red light and arrested on suspicion of Operating a Vehicle Under the Influence of an Intoxicant (OVUII). After a trial, Jones was convicted of OVUII pursuant to Hawai i Revised Statutes 291E-61(a)(1). The testimony of a police officer furnished the basis for his conviction. The officer testified about his observations of Jones before, during, and after the arrest, Jones’s performance on three field sobriety tests, that Jones failed each field sobriety test, and his opinion as to Jones’s intoxication. Jones argues that the officer’s testimony should not have been admitted because the State did not lay sufficient foundation to allow the officer to testify as to whether Jones failed the field sobriety tests and whether Jones was intoxicated. He also claims that insufficient evidence supported his conviction.