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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. SCAP-23-0000297, Thursday, June 20, 2024, 10 a.m.

GORDON M. ROBINSON; GORDON M. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for KELLY K. ROBINSON; GORDON M. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for KEOLA M. ROBINSON; JAMES CHARLES ROBINSON and LORRAINE OMPOY ROBINSON, Trustees of the JAMES CHARLES ROBINSON and LORRAINE OMPOY ROBINSON TRUST Dated December 20, 2007; JAMES C. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for Rachel E. Robinson; JAMES C. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for KEALA C. ROBINSON, also known as Keala Calapini, also known as Keala Robinson; KEALA C. ROBINSON, also known as Keala Calapini, also known as Keala Robinson; JAMES C. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for KAWIKA J. ROBINSON; and JAMES C. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for JEREMY C. ROBINSON, RACHEL E. ROBINSON, KAWIKA J. ROBINSON, JEREMY C. ROBINSON, KELLY K. ROBINSON, and KEOLA M. ROBINSON, Plaintiffs-Appellees, vs. CATHLEN C. ZARKO; CHRISTOPHER P. ZARKO; DONELLE N. ZARKO; LISA K. ZARKO; and PATRICK C. ZARKO, Defendants-Appellants, and  KYLE I. FORSYTHE; SHAWN K. FORSYTHE; SHANIN A. SADO; LAUREN E. FORSYTHE; GILES M. FORSYTHE; TANYA MARIE LOELANI ROBINSON AND WILLIAM ALBERT ROBINSON, Co-trustees Under the TANYA AND WILLIAM ROBINSON TRUST Dated November 27, 2006; AULANI M. DUSENBERRY; MALIA Y. BARROGA; GILES A.I. FORSYTHE AND ARNETTE FORSYTHE, Trustees Under the GILES A.I. FORSYTHE REVOCABLE LIVING TRUST Dated August 3, 2006; GILES A.I. FORSYTHE AND ARNETTE R. FORSYTHE, Trustees of the ARNETTE R. FORSYTHE REVOCABLE TRUST Dated August 3, 2006, Defendants-Appellees.  ARNETTE R. FORSYTHE and GILES A.I. FORSYTHE, as Trustees of the ARNETTE R. FORSYTHE REVOCABLE TRUST Dated August 3, 2006; ARNETTE R. FORSYTHE AND GILES A.I. FORSYTHE, as Trustees of the GILES A.I. FORSYTHE REVOCABLE TRUST Dated August 3, 2006; SHAWN K. FORSYTHE; LAUREN E. FORSYTHE; GILES M. FORSYTHE; KYLE I. FORSYTHE; and SHANIN A. SADO, Counter-Claimants-Appellees, vs. GORDON M. ROBINSON; GORDON M. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for KELLY K. ROBINSON; GORDON M. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for KEOLA M. ROBINSON; JAMES CHARLES ROBINSON AND LORRAINE OMPOY ROBINSON, Trustees of the JAMES CHARLES ROBINSON AND LORRAINE OMPOY ROBINSON TRUST Dated December 20, 2007; JAMES C. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for RACHEL E. ROBINSON; JAMES C. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for KEALA C. ROBINSON, also known as Keala Calapini, also known as Keala Robinson; KEALA C. ROBINSON, also known as Keala Calapini, also known as Keala Robinson; JAMES C. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for KAWIKA J. ROBINSON; and JAMES C. ROBINSON, as Custodian Under the Hawai‘i Uniform Transfer to Minors Act for JEREMY C. ROBINSON, RACHEL E. ROBINSON, KAWIKA J. ROBINSON, KELLY K. ROBINSON, and KEOLA M. ROBINSON, Counter-Defendants-Appellees.  ARNETTE R. FORSYTHE AND GILES A.I. FORSYTHE, as Trustees of the ARNETTE R. FORSYTHE REVOCABLE TRUST Dated August 3, 2006; ARNETTE R. FORSYTHE AND GILES A.I. FORSYTHE, as Trustees of the GILES A.I. FORSYTHE REVOCABLE TRUST Dated August 3, 2006; SHAWN K. FORSYTHE; LAUREN E. FORSYTHE; GILES M. FORSYTHE; KYLE I. FORSYTHE; and SHANIN A. SADO, Cross-Claimants-Appellees, vs. CATHLEEN C. ZARKO; CHRISTOPHER P. ZARKO; DONELLE N. ZARKO; LISA K. ZARKO; and PATRICK C. ZARKO, Cross-Defendants-Appellees, and TANYA MARIE LOELANI ROBINSON AND WILLIAM ALBERT ROBINSON, Co-trustees Under the TANYA AND WILLIAM ROBINSON TRUST Dated November 27, 2006; AULANI M. DUSENBERRY; and MALIA Y. BARROGA, Cross-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 and ʻŌlelo Community Television.

Attorneys for Defendants-Appellants CATHLEN C. ZARKO, et al.:

     Robert G. Klein, Kurt W. Klein, David A. Robyak, and James M. Yuda of Klein Law Group LLLC

Attorney for Plaintiffs-Appellees GORDON M. ROBINSON, et al.:  

     Paul L. Horikawa

NOTE:     Order granting Application for Transfer, filed 01/12/24.

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

Brief Description:

This appeal arises from an action for partition of a single parcel of property located on Maui, owned in undivided tenancies in common by related family members. 

In the underlying action, Plaintiffs-Appellees filed a motion asking the court to “partition” the subject parcel pursuant to HRS § 668 by ordering the creation of a four-unit Condominium Property Regime (CPR) under HRS § 514B, which has been referred to as “partition by condominiumization.”  The circuit court granted Plaintiffs-Appellees’ motion and ordered the property be partitioned in kind by CPR.

This appeal was transferred from the ICA to this court.

In their appeal, Defendants-Appellants raise three main issues: (1) whether a Hawaiʻi court exercising equitable powers may lawfully partition a property under HRS § 668 by ordering the creation of a CPR; (2) whether the circuit court erred by imposing a CPR declaration and relationship upon the Defendants-Appellants; and (3) whether the court erred in not ordering the sale of the property and division of proceeds per HRS § 668 because partition in kind was impracticable, and the creation of a CPR greatly prejudiced the owners.

Supreme Court

No. SCWC-18-0000099 (consolidated with SCWC-18-0000712), Thursday, June 20, 2024, 2 p.m.

WILMINGTON SAVINGS FUND SOCIETY, FSB, Doing Business as CHRISTIANA TRUST, Not in its Individual Capacity, But Solely as Trustee for BCAT 2015-14BTT, Respondent/Plaintiff-Appellee, vs. ISABELO PACPACO DOMINGO and MICHELE ELANOR DOMINGO, Petitioners/Defendants-Appellants, and BANK OF AMERICA, N.A. and HALEWILI PLACE COMMUNITY ASSOCIATION, Respondents/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 and ʻŌlelo Community Television.

Attorney for Petitioners/Defendants-Appellants ISABELO PACPACO DOMINGO and MICHELE ELANOR DOMINGO:

Frederick J. Arensmeyer of The Law Office of Frederick J. Arensmeyer, LLLC

Attorneys for Respondent/Plaintiff-Appellees WILMINGTON SAVINGS FUND SOCIETY, FSB, Doing Business as CHRISTIANA TRUST:  

David B. Rosen, Justin S. Moyer, David E. McAllister, and Christina C. MacLeod of Aldridge Pite, LLP  

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 01/29/24.

NOTE:    Order consolidating CAAP-18-0000099 and CAAP-18-0000712 for disposition, filed 02/02/24.

NOTE:    Certificate of Recusal, by Associate Justice Vladimir P. Devens, filed 02/02/24.

NOTE:    Order assigning Circuit Judge Catherine H. Remigio and Circuit Judge Kevin A.K. Souza, in place of Ginoza, J., recused, and Devens, J., recused, filed 02/27/24.

NOTE:    Order accepting Application for Writ of Certiorari, filed 03/19/24.

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

Brief Description:

This appeal arises out of a foreclosure action between Petitioners/Defendants-Appellants Isabelo Pacpaco Domingo and his wife, Michele Elanor Domingo (collectively, “the Domingos”) and Respondent/Plaintiff-Appellee Wilmington Savings Fund Society, FSB (“Wilmington”).  This is the second time this case has come to our court on an application for writ of certiorari.

After the Domingos defaulted on their mortgage refinance loan for their Kailua-Kona property, in 2018, the Circuit Court of the Third Circuit for the State of Hawai‘i (“third circuit”) entered a foreclosure judgment and ordered the property to be sold at public auction.  The Domingos appealed.  The Intermediate Court of Appeals (“ICA”) granted a motion to stay conditioned upon the Domingos posting a supersedeas bond of $300,000.  No supersedeas bond was ever filed.

A foreclosure sale ensued.  At public auction, Wilmington placed the highest bid.  The third circuit confirmed the sale. The Domingos again appealed.  Months later, the Domingos filed a complaint for wrongful foreclosure and quiet title in the Circuit Court of the First Circuit for the State of Hawai‘i and a lis pendens in the Land Court of the State of Hawai‘i. In 2022, Wilmington sold the property to BBNY REO LLC (“BBNY”).

In their first application for certiorari, we remanded the case to the third circuit for an evidentiary hearing to determine whether BBNY was a third-party good faith purchaser. In 2023, the third circuit found BBNY to be a third-party good faith purchaser.  The ICA then deemed the Domingos’ appeals moot because they did not post the previously ordered supersedeas bond.  The ICA also ruled the Domingos’ lis pendens invalid and that no exception to the mootness doctrine applied.

In this second application for writ of certiorari, the Domingos allege the ICA erred in its interpretation of: (1) the supersedeas bond requirement set forth in City Bank v. Saje Ventures II, 7 Haw. App. 130, 748 P.2d 812 App. (1988), and adopted by this court in Bank of New York Mellon v. R. Onaga, Inc., 140 Hawaiʻi 358, 400 P.3d 559 (2017), when it determined the Domingos’ appeals moot based on their failure to post the bond; (2) the lis pendens doctrine codified in Hawai‘i Revised Statutes § 501-151; and (3) the “collateral consequences” exception to the mootness doctrine.

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 and ʻŌlelo Community Television.

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

No. SCWC-17-0000806, Tuesday, June 25, 2024, 2 p.m.

PETER J. WINN and WESTMINSTER REALTY, INC., Respondents/Plaintiffs-Appellants, vs. WADE BRADY and KATHERINE T. BRADY, individually and as trustees of the WADE K. BRADY FAMILY TRUST; CONTEMPORARY KAMAʻAINA, LLC; WESTMINSTER REALTY, INC. as trustee of the 2806 KOLEPA PLACE TRUST DATED DECEMBER 14, 2010; ERIC L. KEILLOR; and ERIC S. HART, Respondents/Defendants-Appellees, and JAMES E. SPENCE and BEVERLY C. SPENCE, Petitioners/Intervenors-Appellees, and STEPHEN R. SPENCE and VALORIE A. SPENCE, Respondents/Intervenors-Appellees.

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

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

Attorneys for Petitioners/Intervenors-Appellees JAMES E. SPENCE and BEVERLY C. SPENCE:

Joseph A. Stewart, Aaron R. Mun, and Reece Y. Tanaka of Kobayashi Sugita & Goda, LLP

Attorney for Respondents/Plaintiffs-Appellants PETER J. WINN and WESTMINSTER REALTY, INC.:

Lance D. Collins of the Law Office of Lance D. Collins

Self-Represented Respondents/Intervenors-Appellees STEPHEN R. SPENCE and VALORIE A. SPENCE

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 03/20/24.

NOTE:     Order assigning Circuit Judge Peter K. Kubota, in place of Ginoza, J., recused, filed 04/16/24.

NOTE:     Order accepting Application for Writ of Certiorari, filed 04/30/24.

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

Brief Description:

This case raises a question as to whether a recorded judgment lien creates a protected property interest pursuant to Hawaiʻi Revised Statutes (HRS) § 636-3, and, if so, what are the due process notice requirements owed to other judgment lienholders prior to an execution sale. 

James Spence and Beverly Spence (the Spences) obtained a judgment against Wade and Katherine Brady (the Bradys), which they recorded with the Bureau of Conveyances.  Approximately two years later, Peter J. Winn and Westminster Realty, Inc. (Winn) also recorded a judgment they obtained against the Bradys with the Bureau of Conveyances. 

To satisfy the outstanding judgment balance, the Spences obtained a Writ of Execution pursuant to HRS Chapter 651 on a piece of property partly owned by Wade Brady.  Prior to the execution sale, the civil process server in charge of the auction posted written notice of the sale in at least three different places pursuant to HRS § 651-43.  Winn, the junior lienholder, did not receive notice of the execution sale prior to the public auction and asserted that notice by publication did not satisfy constitutional due process.

The ICA held that Winn’s recorded judgment lien on the Brady property was a property interest entitling Winn to personal notice of the execution sale.

This appeal raises three questions: (1) did the notice by publication satisfy Winn’s due process rights; (2) if notice by publication did not satisfy due process and personal notice was required, should this holding apply retroactively; and (3) is an execution sale a state action that must satisfy due process standards for junior lienholders?

Supreme Court

No. CAAP-23-0000409, Wednesday, June 26, 2024, 10 a.m.

STATE OF HAWAIʻI, Plaintiff-Appellee, vs. KAMALEI WILBUR-DELIMA, 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 olelo.org/tv-schedule/.

Attorneys for Defendant-Appellant KAMALEI WILBUR-DELMA:

     Benjamin E. Lowenthal and Sara K. Haley, Deputy Public Defenders

Attorney for Plaintiff-Appellee STATE OF HAWAIʻI in 1PC151000955, 1PC151001978 and 1PC161001506:

     Robert T. Nakatsuji, Deputy Prosecuting Attorney

Attorney for Plaintiff-Appellee STATE OF HAWAIʻI in 1PC151001274:

     Michelle M.L. Puu, Deputy Attorney General

NOTE:     Order granting motion to continue oral argument from 05/22/24 to 06/26/24 at 10:00 a.m., filed 04/29/24

COURT:    Leonard, Acting C.J., Hiraoka, and Wadsworth, JJ.

Brief Description:

Defendant-Appellant Kamalei Wilbur-Delima (Wilbur-Delima) appeals from the May 26, 2023 Orders Denying Wilbur-Delima’s Motion to Correct Illegal Sentence (Orders Denying Motion to Correct) entered by the Circuit Court of the First Circuit (Circuit Court).  Wilbur-Delima also challenges the Circuit Court’s December 13, 2022 Orders of Resentencing, Revocation of Probation (Orders of Resentencing), and April 10, 2023 Findings of Fact; Conclusions of Law; Order Denying Wilbur-Delima’s Motions to Correct Illegal Sentence.  The Orders of Resentencing revoked Wilbur-Delima’s probation, and resentenced him to an indeterminate term of ten years imprisonment in 1PC151000955, and indeterminate five-year terms in 1PC151001274, 1PC151001978, and 1PC161001506, all to be served concurrently.

On February 13, 2023, Wilbur-Delima filed Motions to Correct Illegal Sentence (Motions to Correct), arguing that prior to the Circuit Court’s Orders of Resentencing, his probation expired, and he was no longer under the court’s jurisdiction.  The Circuit Court denied the Motions to Correct on the grounds that motions filed by the State tolled his probation, extending the court’s jurisdiction over Wilbur-Delima.

On appeal, Wilbur-Delima contends that the Circuit Court erred in: (1) ignoring and/or overruling prior orders modifying Wilbur-Delima’s probation that did not extend his concurrent four-year terms of probation, and sentencing him to an indeterminate prison term; and (2) denying Wilbur-Delima’s Motions to Correct and finding that Wilbur-Delima was still on probation and under the court’s jurisdiction on November 23, 2021, when the State moved to, inter alia, revoke probation. 

Intermediate Court of Appeals

No. CAAP-24-0000074, Wednesday, June 26, 2024, 3 p.m.

FRIENDS OF HA‘IKŪ STAIRS, a 501(c)(3) nonprofit corporation; DR. KATRENA KENNEDY, an individual; RANDALL KENNEDY, an individual; DONALD KAMALANI MAIWA PUA III, an individual; BILL SAGER, an individual; ERNEST SHIH, an individual; and RICHARD TUGGLE, an individual, Plaintiffs- Appellants, v. CITY AND COUNTY OF HONOLULU, 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 olelo.org/tv-schedule/.

Attorneys for Plaintiffs-Appellants FRIENDS OF HA‘IKŪ STAIRS, KATRENA KENNEDY, RANDALL KENNEDY, DONALD KAMALANI MAIWA PUA III, BILL SAGER, ERNEST SHIH, AND RICAHRD TUGGLE:

     Margaret Willie and Timothy Vandeveer

Attorney for Defendant-Appellee CITY AND COUNTY OF HONOLULU:

     Daniel M. Gluck, Deputy Corporation Counsel

NOTE:     Order setting hearing to be held on Wednesday, June 26, 2024 at 3:00 p.m., filed 6/20/24.

COURT:    Leonard, Acting C.J., Hiraoka, and McCullen, JJ.

Intermediate Court of Appeals

No. SCAP-22-0000482 (consolidated with SCAP-22-0000571 and SCAP-23-0000330), Thursday, June 27, 2024, 10 a.m.

BRYAN GERALD, Appellant-Appellant, vs. EMPLOYMENT SECURITY APPEALS REFEREES’ OFFICE; UNEMPLOYMENT INSURANCE DIVISION; and HEALTH GO MARKET, INC., Appellees-Appellees. (SCAP-22-000482)

ADAM GRAY, Appellant-Appellee, vs. UNEMPLOYMENT INSURANCE DIVISION, Appellee-Appellant.  (SCAP-22-0000571)

ADAM GRAY, Appellant-Appellant, vs. UNEMPLOYMENT INSURANCE DIVISION, Appellee-Appellee.  (SCAP-23-0000330)

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 olelo.org/tv-schedule/.

Attorneys for Appellant-Appellant BRYAN GERALD (SCAP-22-0000482):

     Douglas C. Smith and Ross Uehara-Tilton of Damon Key Leong Lupchak Hastert, Pro Bono Attorneys

Attorney for Appellant-Appellee (SCAP-22-0000571) and Appellant-Appellee (SCAP-23-0000330) ADAM GRAY:  

     Daniel M. Gluck, Hawaii Appellate Pro Bono Attorney, Volunteer Legal Services Hawaii

Attorneys for Appellee-Appelle (SCAP-22-0000482), Appellee-Appellant (SCAP-22-0000571) and Appellee-Appellee (SCAP-23-0000330) DIRECTOR OF LABOR AND INDUSTRIAL RELATIONS:

     Li-Ann Yamashiro and Jack W. Relf, Deputy Attorneys General

NOTE:     Order granting Applications for Transfer and consolidating SCAP-22-0000482 and SCAP-22-0000571 under SCAP-22-0000482, filed 05/15/23.

NOTE:     Order granting Application for Transfer in SCAP-23-330 and consolidating SCAP-23-0000330, SCAP-22-0000482 and SCAP-22-0000571 under SCAP-22-0000482, filed 07/07/23.

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

Brief Description:

These consolidated appeals address whether the State of Hawaii Department of Labor and Industrial Relations (DLIR), Employment Security Appeals Referees’ Office (ESARO) properly dismissed appeals from initial determinations on unemployment insurance claims as untimely.  Bryan Gerald (Gerald) and Adam Gray (Gray) each made claims for unemployment benefits that were denied by the DLIR’s Unemployment Insurance Division (UID).  Gerald’s case involves one claim and Gray’s case involves two claims for different periods of asserted unemployment.  After their claims were denied, Gerald and Gray submitted appeals to the ESARO past the deadlines set out in Hawaii Revised Statutes (HRS) § 383-38(a) (2015).  HRS § 383-38(a) allows a party to appeal within ten days after notice of a claim determination is mailed, but also provides that for good cause the period of appeal may be extended to thirty days.  Gerald and Gray submitted their respective appeals to the ESARO more than thirty days after notices were mailed to them.  The ESARO dismissed each of the appeals.

Gerald appealed the ESARO’s dismissal to the Circuit Court of the Fifth Circuit (Fifth Circuit Court) asserting that his untimely appeal to the ESARO was due to mental health challenges.  The Fifth Circuit Court held that it lacked jurisdiction because Gerald’s underlying appeal to the ESARO was untimely.

Gray filed two appeals to the Circuit Court of the Second Circuit (Second Circuit Court) corresponding to his different claims, asserting that circumstances related to the COVID pandemic and difficulty contacting the unemployment office affected the timing of his appeal to the ESARO.  Two Second Circuit Court judges decided Gray’s appeals differently.  The Honorable Kelsey Kawano held that the court lacked jurisdiction because Gray’s appeal to the ESARO was untimely.  The Honorable Kirstin Hamman vacated the ESARO’s dismissal on grounds that, due to the circumstances in the case, denial of Gray’s appeal was a denial of access to justice and a violation of his due process rights.

All three circuit court decisions were appealed to the Intermediate Court of Appeals.  This court granted transfer of each appeal and consolidated them.  Both Gerald and Gray raise multiple issues, including whether the appeal deadlines in HRS § 383-38(a) are jurisdictional and whether the deadlines are subject to equitable tolling.

Supreme Court

No. SCWC-16-0000444, Thursday, June 27, 2024, 2 p.m.

MAUI LANI NEIGHBORS, INC., a Hawai‘i Nonprofit Corporation, Petitioner/Plaintiff-Appellant, vs. STATE OF HAWAI‘I; STATE OF HAWAI‘I DEPARTMENT OF LAND AND NATURAL RESOURCES; STATE OF HAWAI‘I BOARD OF LAND AND NATURAL RESOURCES; DAWN N.S. CHANG, in her official capacity as Chair of the State of Hawai‘i Board of Land and Natural Resources; COUNTY OF MAUI; COUNTY OF MAUI PLANNING COMMISSION; COUNTY OF MAUI DEPARTMENT OF PLANNING; KATE L.K. BLYSTONE, in her official capacity as County of Maui Planning Director, Respondents/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 and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Petitioner/Plaintiff-Appellant MAUI LANI NEIGHBORS, INC.:

Peter N. Martin of Peter N. Martin, Attorney at Law, LLLC, and Tom Pierce of Tom Pierce, Attorney at Law, LLLC

Attorneys for Respondents/Defendants-Appellees STATE OF HAWAI‘I, et al.:

     Daniel A. Morris and Miranda C. Steed, Deputy Attorneys General

Attorneys for Respondents/Defendants-Appellees COUNTY OF MAUI, et al.:

     Kristin K. Tarnstrom and Mariana Lowy-Gerstmar, Deputies Corporation Counsel

Attorneys for Respondent/Intervenor-Appellee ALEXANDER & BALDWIN, LLC:

     Calvert G. Chipchase and Christopher T. Goodin fo Cades Schutte

NOTE:     Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 03/27/24.

NOTE:     Order assigning Circuit Judge Jeannette H. Castagnetti, in place of Ginoza, J., recused, filed 05/02/24.

NOTE:     Order accepting Application for Writ of Certiorari, filed 05/24/24.

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

Brief Description:

In 2014, Maui Lani Neighbors, Inc. (MLN) sued the State of Hawai‘i and several other defendants concerning a county special use permit (CUP) allowing the State to develop the Central Maui Regional Sports Complex (Sports Park) on 65 acres of land acquired from intervenor Alexander & Baldwin, LLC.  MLN sought, under the Hawai‘i Constitution, Hawai‘i Environmental Policy Act (HEPA), and relevant ordinances, the following relief: (1) a declaration, among other things, that the CUP violated the relevant zoning ordinances and (2) an injunction to prevent the State from developing the Sports Park.

The State moved for partial dismissal.  The Circuit Court of the Second Circuit granted the motion over MLN’s opposition, dismissing eight of the nine counts because those counts were barred due to “failure to exhaust administrative remedies.”

On appeal, the Intermediate Court of Appeals (ICA) affirmed in part and vacated in part, concluding that six of the counts were properly dismissed for failure to exhaust administrative remedies.  The ICA remanded the case to the circuit court to address the other two counts “to the extent those claims seek relief other than to invalidate the CUP.”

MLN applied for a writ of certiorari, presenting seven questions regarding whether they may prosecute their claims under article XI, section 9 of the Hawai‘i Constitution, HEPA, and related provisions.  Inter alia, MLN argues that administrative exhaustion was not necessary before bringing their challenges to court.

Supreme Court

No. SCWC-22-0000585, Tuesday, July 2, 2024, 9 a.m.

ALPHA, INC., Petitioner and Respondent/Appellant-Appellant, vs. BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU, Respondent and Petitioner/Appellee-Appellee, and OFFICE OF ADMINSITRATIVE HEARINGS, DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, STATE OF HAWAIʻI, Respondent/Appellee-Appellee, and BEYLIK/ENERGETIC A JV, Respondent/Appellee-Intervenor-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 olelo.org/tv-schedule/.

Attorneys for Petitioner and Respondent/Appellant-Appellant ALPHA, INC.:

     Jeffrey M. Osterkamp and Kirk M. Neste of Cades Schutte

Attorneys for Respondent and Petitioner/Appellee-Appellee BOARD OF WATER SUPPLY, CITY AND COUNTY OF HONOLULU:

Joseph A. Stewart, Aaron R. Mun, and Stephen G.K. Kaneshiro of Kobayashi Sugita & Goda, LLP, and Moana A. Yost and Jeff A. Lau, Deputies Corporation Counsel

Attorneys for Respondent/Appellee-Intervenor-Appellee BEYLIK/ENERGETIC A JV:

     Lyle S. Hosoda, Kourtney H. Wong, and Spencer J. Lau of Hosoda Law Group

NOTE:     Order accepting Applications for Writ of Certiorari, filed 05/30/24.

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

Brief Description:

This case is a procurement dispute between Alpha, Inc. (Alpha), a bidder, and the Board of Water Supply, City and County of Honolulu (BWS), the procuring agency.  BWS solicited bids for a contract to drill three wells.  Alpha was the low bidder, but BWS found its bid nonresponsive.  BWS awarded the contract to a different company. 

Both Alpha and BWS present questions for this court’s review.  Alpha argues that it was qualified to perform the work, so BWS erred by finding its bid nonresponsive.  BWS argues that Alpha could not appeal its disqualification of Alpha’s bid to an administrative hearings officer.  BWS contends that under Hawai‘i Revised Statutes § 103D-709(d), the hearings officer lacked jurisdiction over Alpha’s appeal.

Supreme Court

No. SCWC-23-0000185, Tuesday, July 2, 2024, 10:30 a.m.

STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant, vs. RANDALL HOFFMAN, Petitioner/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 olelo.org/tv-schedule/.

Attorney for Petitioner/Defendant-Appellee RANDALL HOFFMAN:

     Benjamin E. Lowenthal, Deputy Public Defender

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

     Tracy Murakami, Deputy Prosecuting Attorney

NOTE:     Order accepting Application for Writ of Certiorari, filed 05/29/24.

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

Brief Description:

Hawaiʻi State Department of Land and Natural Resources Division of Conservation and Resources Enforcement (“DLNR DOCARE”) Officer Warren Tavares (“Officer Tavares”) encountered Randall Hoffman (“Hoffman”) in a trailer stopped on a Kauaʻi roadside, with Hoffman in it actively dumping green waste.  Officer Tavares stated that he believed probable cause existed for Hoffman’s arrest at that time.  At no point during the ensuing encounter was Hoffman advised of his state Miranda rights. 

Officer Tavares pointed to a sign prohibiting illegal dumping and informed Hoffman that what he was doing was a crime.  Hoffman cursed back.  Officer Tavares then told Hoffman that dumping green waste there was illegal and could subject him to a citation or to arrest for criminal littering.  He added that the State and multiple agencies had recently worked together and spent over $100,000 to clean up that area, which was a high crime area with many abandoned cars and drug activity.  Hoffman again cursed.  Hoffman then said he had been turned away from the Hanapepe Refuse Station because his trailer was too big.  Officer Tavares told Hoffman he would have to take up that matter with the county and that he was without jurisdiction to address that.  Hoffman again replied with a curse.

Officer Tavares then went into Hoffman’s trailer and handcuffed him behind his back.  He then moved Hoffman off the trailer.  As Officer Tavares was retrieving his citation book from his vehicle, Hoffman moved his handcuffed arms to the front of his body, re-entered his trailer, and resumed throwing green waste onto the ground.  Officer Tavares entered Hoffman’s trailer, and the two ended up scuffling on the ground.  Hoffman wrapped his legs around Officer Tavares and squeezed, causing Officer Tavares pain.  After Officer Tavares punched Hoffman twice in the face, Hoffman stated, “Okay, I’m done.”

Hoffman was charged with assaulting a law enforcement officer, resisting arrest, and criminal littering.  Before trial, the state filed a motion to determine the voluntariness of Hoffman’s statements.  The circuit court denied the motion because although Officer Tavares testified he had probable cause to arrest Hoffman the moment he arrived at the scene, he did not Mirandize Hoffman at any point during the encounter. 

ppeal, both parties agreed Hoffman was in custody; at issue was whether he was interrogated.  The Intermediate Court of Appeals (“ICA”) issued a summary disposition order (“SDO”) affirming in part and vacating in part the circuit court’s order.  The ICA affirmed the inadmissibility of Hoffman’s explanation that he had been turned away at the Hanapepe Refuse Station because his trailer was too big.  The ICA vacated that part of the circuit court’s order ruling Hoffman’s other statements inadmissible.  The ICA ruled that the words or conduct Officer Tavares used in eliciting those statements were “normally attendant to arrest and custody” and not “interrogation.”  The ICA cited to Hawai‘i Revised Statutes § 803-6, titled “Arrest, how made,” which states that an arresting officer, among other things, “should give the party arrested clearly to understand for what cause the person undertakes to make the arrest.”  

Hoffman presents a single question on certiorari:  “Did the [ICA] gravely err when it ruled that an officer’s conduct and statements ‘normally attendant to arrest and custody’ could not arise to an interrogation triggering Miranda warnings?”

Supreme Court

No. SCAP-22-000060, Tuesday, July 16, 2024, 10:30 a.m.

UNITE HERE! LOCAL 5, Plaintiff-Appellant, vs. PACREP LLC and PACREP 2 LLC; CITY AND COUNTY OF HONOLULU, a municipal corporation, 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 and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Plaintiff-Appellant UNITE HERE! LOCAL 5:
     Gregory W. Kugle and Clint K. Hamada of Damon Key Leong Kupchak Hastert

Attorneys for Defendants-Appellees PACREP LLC and PACREP 2 LLC:
     Terence J. OʻToole, Sharon V. Lovejoy, and Maile S. Miller of Starn OʻToole Marcus & Fisher

Attorney for Defendant-Appellee CITY AND COUNTY OF HONOLULU:
     Brad T. Saito, Deputy Corporation Counsel

NOTE: Order granting Application for Transfer, filed 11/08/23.

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

Brief Description:

Unite Here! Local 5 (“Local 5”), an organized labor union, filed a complaint in the First Circuit Court for the State of

Hawaiʻi (“circuit court”) against PACREP LLC and the City and County of Honolulu’s (“C&C”). PACREP is the developer of two condominium hotel projects located at 2121 Kuhio Avenue (“2121 Project”) and 2139 Kuhio Avenue (“2139 Project”) (collectively, “the Projects”) in the Waikiki Special District (“WSD”) on the island of Oʻahu. The C&C’s Department of Planning and Permitting (“DPP”) accepted the Final Environmental Assessments (“FEA”) for the Projects and issued findings of no significant impact (“FONSI”), subject of this litigation.

The 2121 Project and 2139 Project are adjacent lots, treated and recognized as one zoning lot for development purposes. At first, PACREP began looking at developing the 2121 Project. During the environmental review process for the 2121 Project, PACREP looked into acquiring the 2139 lot. After much back and forth between PACREP and the DPP over drafts of the 2121 Project EA, the DPP ultimately accepted the 2121 Project FEA and issued a FONSI. The FEA provided that the 2121 Project would be a “condominium hotel” with 459 units. With this acceptance, PACREP moved forward with acquiring permits and variance approvals within the WSD and began construction.

Shortly after approval of the 2121 Project, PACREP acquired the 2139 Kuhio lot from the Food Pantry and began the environmental review process for the 2139 Project. The 2139 Project was proposed to be a condo-hotel with 280 units, sharing an eight-story podium containing residential services, recreational amenities, vehicular access, and off-street parking with the adjacent 2121 Project. The 2139 Project FEA was ultimately accepted and a FONSI was issued. A final certificate of occupancy was issued for the Projects in 2021. Today, all units in the Projects have been sold and the development is owned and run by the Ritz-Carlton Waikiki.

Local 5 filed suit in the circuit court after each respective FEA acceptance, and the cases were consolidated for administrative purposes only. PACREP filed motions for summary judgment arguing that the FEAs and FONSIs were proper and the Projects were not improperly segmented. Local 5 filed counter motions for summary judgment essentially asking the circuit court to find that the Projects’ FEAs were insufficient because they: (1) failed to account for the possibility of long-term residential use of units; (2) lacked mitigation measures to require the 2121 Project to operate as a hotel and provide jobs in perpetuity; and (3) failed to consider the impact of the 2121 Project’s building height and orientation on public views identified in the WSD design guidelines.

Local 5 also asked the circuit court to find the FEAs insufficient because the Projects were improperly segmented –

the FEAs should have considered the impact of the Projects together. Local 5 argued that declaring the FEAs insufficient would thereby make any approvals and permits subsequent to the FEAs void and the Projects inoperable.

PACREP also filed a supplemental motion for summary judgment arguing that the cases were moot because the Projects had already been completed and the units sold. The C&C joined all of PACREP’s motions. The circuit court ultimately held that the Projects were not improperly segmented, the FEAs and FONSIs were proper and sufficient, and the case was moot.

In 2022, Local 5 filed notices of appeal in both cases. After consolidation at the ICA, the cases were then transferred to this court.

There are four main issues presented: (1) whether the circuit court erred when it found that the Projects were not unlawfully segmented; (2) whether the circuit court erred in finding the Projects’ FEAs sufficient; (3) whether the circuit erred when it determined that the projects did not require an EIS; and (4) whether Local 5’s claims are moot.

Supreme Court

NO. SCWC-19-0000668, Tuesday, July 16, 2024, 2 p.m.

ROWENA AKANA, Petitioner/Appellant-Appellant, vs. HAWAI‘I STATE ETHICS COMMISSION, STATE OF HAWAI‘I, Respondent/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 olelo.org/tv-schedule/.

Attorneys for Petitioner/Appellant-Appellant ROWENA AKANA:

     James J. Bickerton, Bridget G. Morgan-Bickerton, Stephen M. Tannenbaum, Jeremy K. OʻSteen, and Geoffrey A. Tracy of Bickerton Law Group, LLLP

Attorneys for Respondent/Appellee-Appellee HAWAI‘I STATE ETHICS COMMISSION, STATE OF HAWAI‘I:

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

NOTE    Order accepting Application for Writ of Certiorari, filed 06/10/24.

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

Brief Description:

This case concerns allegations of ethical violations against Rowena Akana, a former Office of Hawaiian Affairs (OHA) trustee.  In 2018, the Hawai‘i State Ethics Commission (Commission) filed a charge against Akana, alleging several violations of the State Ethics Code.  After a contested case hearing, the Commission determined that she committed several violations of the Fair Treatment law (HRS § 84-13), Gifts law (HRS § 84-11), and Gifts Reporting law (HRS § 84-11.5).  The Commission fined Akana for those violations.  The Circuit Court of the First Circuit affirmed the Commission’s decision.  Akana appealed to the Intermediate Court of Appeals (ICA), which affirmed. 

Akana raises two issues before this court: (1) whether the Commission had jurisdiction to charge her with violations of the State Ethics Code and (2) whether the ICA erred in its application of the Gifts law and Gifts Reporting law to her acceptance of legal fee payments from a third party for a lawsuit Akana filed against the OHA Board of Trustees. 

Supreme Court

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