No. SCWC-16-0000071, Tuesday, May 5, 2020, 11:15 a.m.
HEALOHA CARMICHAEL, LEZLEY JACINTHO, and N 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.
NOTE: Second amended notice of setting for oral argument due to rescheduling from 03/05/20 at 10:00 a.m. to 03/31/20 at 10:00 a.m., filed 03/03/20.
NOTE: Third amended notice of setting for oral argument due to rescheduling from 3/31/20 at 10:00 a.m. to 05/05/20 at 11:15 a.m., filed 03/19/20.
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”?
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CANCELED
No. SCWC-17-0000176, Tuesday, March 31, 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.
NOTE: Second amended notice of setting for oral argument due to rescheduling from 03/05/20 at 8:45 a.m. to 03/31/20 at 8:45 a.m., filed 03/03/20.
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.
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CANCELED
No. SCAP-18-0000632, Wednesday, April 1, 2020, 10 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
Aliiolani 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.
NOTE: Amended notice of setting for oral argument due to rescheduling from 03/05/20 at 11:15 a.m. to 04/01/20 at 10:00 a.m., filed 03/04/20.
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.
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CANCELED
No. SCWC-16-0000845, Wednesday, April 15, 2020, 8:45 a.m.
DONNA LEE CHING, Petitioner/Plaintiff-Appellant/Cross-Appellee, vs. NANCY LOO DUNG, Individually, and as Trustee under that certain unrecorded Nancy Loo Dung Revocable Living Trust dated September 8, 1993; The Estate of DENNIS QUAN KEONG DUNG, DECEASED AS Trustee under that certain unrecorded Irrevocable Trust for Dixon Quan Hon Dung, dated June 21, 1995, and as Trustee under that certain unrecorded Nancy Loo Dung Revocable Living Trust dated September 8, 1993; PATSY BOW YUK DUNG, Individually, and as Trustee under that certain unrecorded Revocable Trust Agreement dated August 19, 2003; DIXON QUAN HON DUNG; BILLIE DUNG; ANNETTE KWAI FAH DUNG; DENBY DUNG; DARAH DUNG; DEAN DUNG, Respondents/Defendants-Appellees/Cross-Appellants, et al.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Aliiolani Hale
417 South King Street
Honolulu, HI 96813
Attorneys for Petitioner:
Terrance M. Revere of Revere & Associates, LLLC; Jonathan Ortiz, Wade J. Katano, and Christine S. Prepose-Kamihara of Ortiz & Katano
Attorneys for Respondents:
Ronald Shigekane of Chong, Nishimoto, Sia, Nakamura & Goya; David J. Minkin and Jesse J. T. Smith of McCorriston Miller Mukai MacKinnon LLP
NOTE: Certificate of recusal, by Associate Justice Sabrina S. McKenna, filed 10/17/19.
NOTE: Order assigning Circuit Court Judge Edwin C. Nacino, in place of McKenna, J., recused, filed 10/24/19.
NOTE: Certificate of recusal, by Chief Justice Mark E. Recktenwald, filed 10/30/19.
NOTE: Order assigning Circuit Court Judge Jeffrey P. Crabtree, in place of Recktenwald, C.J., recused, filed 11/1/19.
NOTE: Certificate of recusal, by Substitute Justice Nacino, in place of McKenna, J., recused, filed 11/19/19.
NOTE: Order assigning Circuit Court Judge John M. Tonaki, in place of Substitute Justice Nacino, previously assigned in place of McKenna, J., recused, filed 11/21/19.
NOTE: Order accepting Application for Writ of Certiorari, filed 12/04/19.
COURT: Nakayama, Acting C.J., Pollack and Wilson, JJ., Circuit Judge Crabtree, in place of Recktenwald, C.J., recused, and Circuit Judge Tonaki, in place of McKenna, J., recused.
Brief Description:
This case arises out of Petitioner Donna Lee Ching’s (Ching) use of an easement (Easement) over certain real property owned by Respondents Annette Dung, Dean Dung, Darah Dung, Denby Dung, and Dixon Quan Hon Dung (Dungs). Ching and the Dungs asserted numerous claims against one another in a jury trial in the Circuit Court of the First Circuit. Ching alleged that the Dungs had engaged in a civil conspiracy to interfere with her use and enjoyment of the Easement, had invaded her right to privacy, had defamed her, and had engaged in malicious prosecution. The Dungs asserted similar claims against Ching.
Following trial, final judgment was entered in favor of Ching. The jury found that the scope of the Easement included both pedestrian and vehicular use. The jury also concluded that Ching had proved her claims for nuisance, invasion of privacy, defamation, civil conspiracy, and malicious prosecution. The jury awarded Ching special damages of $16,600, general damages of $500,000, and punitive damages of $100,000. The jury decided against the Dungs on all of their counterclaims.
On appeal, the ICA held that the Circuit Court made numerous errors, including where it found that the Dungs had judicially admitted the existence and scope of the Easement and where it judicially estopped the Dungs from denying that the Easement existed and that the scope included vehicular access. The ICA vacated the jury’s verdicts as to Ching’s claims for nuisance, civil conspiracy, and malicious prosecution.
Because the ICA found that it was impossible to determine whether the jury’s unspecified lump-sum damages award was based on one of the improper grounds that it had vacated, the ICA applied the so called “general verdict rule” to vacate the entire jury award and remand the case for a new trial.
On certiorari, Ching argues that the ICA erred by (1) sua sponte raising and subsequently misapplying the “general verdict rule,” (2) sua sponte raising and then misapplying the law of civil conspiracy, (3) improperly vacating the circuit court’s order on judicial admissions and judicial estoppel, and (4) improperly vacating the jury’s verdict on her nuisance and malicious prosecution claims.
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CANCELED
No. SCWC-16-0000345, Wednesday, April 15, 2020, 10 a.m
STATE OF HAWAI I, 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.
NOTE: Second amended notice of setting for oral argument filed 02/03/20 due to rescheduling from 03/12/20, 8:45 a.m. to 04/15/20, 10:00 a.m.
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.
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CANCELED
No. SCCQ-19-0000156, Wednesday, April 15, 2020, 11:15 a.m.
DW AINA LE A DEVELOPMENT, LLC, Plaintiff-Appellant, vs. STATE OF HAWAII LAND USE COMMISSION; STATE OF HAWAII, Defendants-Appellees.
The above-captioned case has been set for argument on the merits at:
Supreme Court Courtroom
Aliiolani Hale
417 South King Street
Honolulu, HI 96813
Attorneys for Appellant:
Chuck C. Choi and Allison A. Ito of Choi & Ito
Attorney for Appellees:
Ewan C. Rayner, Deputy Solicitor General
COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.
Brief Description:
DW Aina Le a Development (DW) was in the process of developing 1,060 acres of land on Hawaii Island when the Land Use Commission (LUC) reclassified the land from urban to agricultural, thereby prohibiting DW’s development. Although this court vacated the reclassification in 2014, DW subsequently filed a complaint in the Circuit Court of the First Circuit seeking compensation for a regulatory taking between 2011 (when the reclassification was finalized) and 2014 (when the reclassification was vacated).
The LUC removed the case to federal court and argued that the statute of limitations on the takings claim was two years and had therefore expired before DW filed its complaint. DW urged that the catch-all six-year statute of limitations in Hawai i Revised Statutes § 657-1(4) applies to constitutional takings claims. The federal district court agreed with the LUC. DW appealed that decision to the Ninth Circuit.
The Ninth Circuit then certified the question to this court: “What is the applicable statute of limitations for a claim against the State of Hawai i alleging an unlawful taking of ‘[p]rivate property . . . for public use without just compensation,’ Haw. Const. art. I, § 20?”
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