Oral Arguments Schedule

Case Details

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 54.

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.

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.

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.

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.

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.

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.

No. SCCQ-23-0000515, Tuesday, June 18, 2024, 10 a.m.

ALOHA PETROLEUM, LTD., Plaintiff-Appellant, vs. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, and AMERICAN HOME ASSURANCE COMPANY, 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 Plaintiff-Appellant ALOHA PETROLEUM, LTD.:

      Michael Heihre and Michi Momose of Cades Schutte

Attorneys for Defendants-Appellees NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, and AMERICAN HOME ASSURANCE COMPANY:  

      Terence J. OʻToole and Kari K. Noborikawa of Starn OʻToole Marcus & Fisher  

NOTE:     Order accepting the certified questions, filed 10/11/23.

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

Brief Description:

The City and County of Honolulu and the County of Maui sued Aloha Petroleum, Ltd. (Aloha) and other defendants for harms related to climate change.  Aloha sought a declaratory judgment from the United States District Court for the District of Hawai‘i that its commercial general liability insurers are obligated to defend it in the underlying climate lawsuits.  Those insurers are National Union Fire Insurance Company of Pittsburgh, PA and American Home Assurance Company, both subsidiaries of American Insurance Group (AIG). 

Aloha and the AIG defendants cross-moved for summary judgment in federal court.  The U.S. District Court Judge determined that Hawai‘i law is dispositive.  She certified two questions to this Court, which we accepted:

(1) For an insurance policy defining a covered “occurrence” in part as an “accident,” can an “accident” include recklessness?

(2) For an “occurrence” insurance policy excluding coverage of “pollution” damages, are greenhouse gases “pollutants,” i.e., “gaseous” “irritants or contaminants, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste”?

We will hear argument on these two questions. 

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.

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  

NOTE:  Order 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.

COURT:  Recktenwald, 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.