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No. SCAP-24-0000401, Thursday, May 15, 2025, 10:30 a.m., Nakoa III v. Governor

LEONARD K. NAKOA III, DANIEL PALAKIKO, TOM COFFMAN, LLEWELYN (BILLY) KAOHELAULI‘I, VAL TURALDE, ELIZABETH OKINAKA, TOM KEALI‘I KANAHELE, RUPERT ROWE, ELLEN EBATA, AND JEFFREY LINDER, Plaintiffs-Appellants, vs. GOVERNOR OF THE STATE OF HAWAI‘I, HAWAI‘I HOUSING FINANCE AND DEVELOPMENT CORPORATION, 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, 2^nd 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 ‘Ōlelo TV 49 at olelo.org.

Attorneys for Plaintiffs-Appellants LEONARD K. NAKOA III, DANIEL PALAKIKO, TOM COFFMAN, LLEWELYN (BILLY) KAOHELAULI‘I, VAL TURALDE, ELIZABETH OKINAKA, TOM KEALI‘I KANAHELE, RUPERT ROWE, ELLEN EBATA, AND JEFFREY LINDER :

     Lance D. Collins of Law Office of Lance D. Collins, Bianca Isaki of Law Office of Bianca Isaki, Linda J. Nye of Nye Law, and Ryan D. Hurley of Law Office of Ryan D. Hurley

Attorneys for Defendants-Appellees GOVERNOR OF THE STATE OF HAWAI‘I, HAWAI‘I HOUSING FINANCE AND DEVELOPMENT COROPORATION, State of Hawai‘i:

     Craig Y. Iha, Linda L.W. Chow, Klemen Urbanc, and Chase S.L. Suzumoto, Deputy Attorneys General

NOTE: Order granting Application for transfer, filed 12/09/24.

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

Brief Description:

This case involves a challenge to the governor’s authority under Hawai‘i Revised Statutes (HRS) chapter 127A to issue a series of emergency proclamations relating to affordable housing.

Plaintiffs filed a Petition for Writ of Quo Warranto against State Lead Housing Officer (SLHO) Nani Medeiros and the Build Beyond Barriers Working Group (offices established by the governor’s initial emergency proclamation).  Plaintiffs sought a judgment declaring that (1) defendants’ “lack the authority to hold office” because the offices are void and unlawful, and (2) the subject proclamations and certification rules are void.

After Plaintiffs filed their petition, the SLHO resigned, and the SLHO office was removed in the governor’s second proclamation.  The Build Beyond Barriers Working Group was later abolished, and its functions were transferred to the Hawai‘i Housing Finance and Development Corporation (HHFDC).

The circuit court granted the State’s motion to dismiss the quo warranto petition.  It held that Plaintiffs’ quo warranto “mechanism” was inapplicable, and that their claims were moot.  The court, however, held that it would delay final judgment and allow Plaintiffs to file an amended petition if they so chose.

Plaintiffs filed an amended complaint replacing defendants Nani Medeiros and the Build Beyond Barriers Working Group with Governor Josh Green and HHFDC as defendants.  Plaintiffs sought a declaratory judgment that the proclamations and certification rules were void “for exceeding the authority delegated under Hawaii Revised Statutes Chapter 127A, or for violating the state constitution, and declaring all actions taken under the authority of the Proclamations and its Certification Rules void.” 

After reviewing both parties’ cross-motions, the circuit court granted the State’s motion to dismiss the amended complaint.  On appeal to the Intermediate Court of Appeals, Plaintiffs sought transfer to this court. 

Plaintiffs argue that the circuit court erred in dismissing their quo warranto petition and amended complaint.  They claim that (1) the proclamations are void because the governor lacked a lawful basis to declare affordable housing an emergency under HRS chapter 127A, (2) the governor suspended and modified statutes in contravention of article I § 15 of the Hawai‘i Constitution, and (3) the proclamations’ suspension of laws violates the separation of powers doctrine.  Plaintiffs also argue that their quo warranto and declaratory relief claims meet mootness exceptions, and that they have concrete interests that entitle them to declaratory relief under HRS § 632-1. 

This court accepted transfer pursuant to HRS § 602-58(b).

SCWC-21-0000504, which was originally scheduled for Thursday, June 5, 2025, 2 p.m. has been rescheduled for Thursday, June 19, 2025 at 2 p.m.

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FREDERICK A. NITTA, M.D., INC., FREDERICK A. NITTA, individually, HAWAI‘I COUNTY MEDICAL SOCIETY, CHARLENE ORCINO, and ADRIAN “SCOTT” NORTON, Plaintiffs-Appellees, vs. HAWAI‘I MEDICAL SERVICE ASSOCIATION, 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 ‘Ōlelo at olelo.org/tv-schedule/.

Attorneys for Defendant-Appellant HAWAI‘I MEDICAL SERVICE ASSOCIATION:   
     Joachim P. Cox, Randall C. Whattoff and Kamala S. Haake of Cox Fricke LLP 

Attorney for Plaintiffs-Appellees FREDERICK A. NITTA, M.D., INC., FREDERICK A. NITTA, individually, HAWAI‘I COUNTY MEDICAL SOCIETY, CHARLENE ORCINO, and ADRIAN “SCOTT” NORTON:    
     Ted H.S. Hong  

NOTE: Order granting Application for Transfer, filed 10/23/24. 

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

Brief Description:

In this case, Plaintiffs are Dr. Frederick A. Nitta, M.D., Inc.; Dr. Frederick Nitta; his patients Charlene Orcino and Adrian “Scott” Norton; and Hawai‘i County Medical Society. 

Plaintiffs sued Defendant Hawai‘i Medical Service Association (“HMSA”), alleging that its refusal to pay for patient medication and treatments tortiously interfered with the contracts between Dr. Nitta and his patients. 

HMSA moved to compel arbitration.  (HMSA also moved for summary judgment as to Orcino’s claims and to stay litigation pending arbitration.)  The circuit court requested supplemental briefing as to whether the contracts between HMSA and Dr. Nitta and his patients were contracts of adhesion and unenforceable.  The circuit court ultimately ruled that they were, in its “Findings of Fact, Conclusions of Law and Order Denying Defendant Hawai‘i Medical Service Association’s Motion: (1) to Compel Arbitration of Frederick A. Nitta, M.D., Inc.’s, Frederick A. Nitta’s, and Adrian ‘Scott’ Norton’s Claims; (2) for Summary Judgment as to Charlene Orcino’s Claims; and (3) to Stay Litigation Pending Arbitration, Filed on June 13, 2023” (“order”).   

HMSA appealed the order to the ICA as beyond the scope of its motion to compel.  The Plaintiffs, however, sought transfer because they considered this appeal as broadly implicating who gets to control healthcare decisions.  The points of error on appeal are summarized as follows: 

1.  The trial court erred when it based its analysis of unconscionability on the substantive terms of the overarching contract rather than the arbitration provisions.
2.  The trial court erred to the extent that it determined that the arbitration provisions in the HMSA-FNI Provider Agreements were not enforceable where the evidence established, among other things, that (a) the terms of the arbitration provisions were fair to all parties and were clearly disclosed to FNI; (b) FNI had the opportunity to provide input on the operative Commercial Provider Agreement but did not do so; (c) HMA provided significant input on behalf of providers like FNI; and (d) with respect to the provider agreements for government health insurance plans, the terms were largely set by the government.
3.  The trial court erred when it determined that the arbitration provision in Mr. Norton’s plan documents and the dispute resolution provision in Ms. Orcino’s plan documents were not enforceable where the evidence established, among other things, that (a) the terms of the dispute resolution provisions were fair to all parties and were clearly disclosed to Mr. Norton and Ms. Orcino; (b) the agreements were negotiated by parties of equal bargaining power – namely, the EUTF (on behalf of Mr. Norton) and the government (on Behalf of Ms. Orcino); (c) plan members by Mr. Norton and Ms. Orcino were given ample notice of the agreements and could review them at length before signing them; and (d) members were regularly reminded of their agreements and provided access to them.  In addition, the unconscionability framework does not apply to Ms. Orcino because her dispute resolution process is dictated by the Med-QUEST Division of DHS.
4.  The trial court erred when it made factual and legal findings that went to the merits of the parties’ dispute.

SCPW-17-0000927 and 21908, Tuesday, June 10, 2025, 2 p.m., Grube v. Trader

No. 21908:  STATE OF HAWAI‘I, Plaintiff-Appellee, vs. JEROME ROGAN, Defendant-Appellant.

SCPW-17-0000927:  NICK GRUBE, Petitioner, vs. THE HONORABLE ROM A. TRADER, Judge of the Circuit Court of the First Circuit, State of Hawai‘i, Respondent Judge, and STATE OF HAWAI‘I, ALAN AHN, and TIFFANY MASUNAGA, Respondents.

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

Supreme Court Courtroom
Ali‘iōlani Hale, 2^nd 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 ‘Ōlelo at olelo.org/tv-schedule/.

Attorney for Petitioner NICK GRUBE:

     Robert Brian Black of Civil Beat Law Center for the Public Interest

Attorneys for Amicus Curiae THE OFFICE OF THE PUBLIC DEFENDER:

     Benjamin Lowenthal, Sara K. Haley, and Taryn R. Tomasa, Deputy Public Defenders

Attorneys for Amicus Curiae ATTORNEY GENERAL OF THE STATE OF HAWAI‘I:

     Kaliko‘onālani D. Fernandes, Solicitor Gerneral and Thomas J. Hughes, Deputy Solicitor General

NOTE: Certificate of Recusal, by Associate Justice Vladimir P. Devens, filed 02/12/24.

NOTE: Order assigning Circuit Judge Matthew J. Viola, in Place of Devens, J., recused, filed 02/14/24.

NOTE: Order consolidating cases for oral argument and Disposition, filed 11/21/24.

NOTE: Order establishing briefing schedule, filed 11/26/24.

NOTE: Order granting motion to continue oral argument from 05/15/25 to 06/10/25 at 2:00 p.m., filed 04/15/25.

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

Brief Description:

This court has consolidated two original proceedings: a completed criminal direct appeal and an original proceeding seeking mandamus relief in a since completed criminal case.

Defendant-Appellant Jerome Rogan and Respondent Alan Ahn had cases that resulted in published opinions.  State v. Rogan, 91 Hawaiʻi 405, 984 P.2d 1231 (1999) and Grube v. Trader, 142 Hawaiʻi 412, 420 P.3d 343 (2018).  Citing Hawaiʻi Revised Statutes (HRS) § 831-3.2(f), both now request that the Judiciary seal their case files.

The Department of the Attorney General issued expungement orders to Rogan and Ahn.  Per HRS 831-3.2(f), those who receive expungement orders “may request in writing that the court seal or otherwise remove all judiciary files and other information pertaining to the applicable arrest or case from the judiciary’s publicly accessible electronic databases.”  Courts are required to make “good faith diligent efforts to seal or otherwise remove the applicable files and information within a reasonable time.”  HRS § 831-3.2(f).

Rogan requested that the Judiciary seal his court records and remove his case from the Hawaiʻi State Judiciary websites.  He asked the Judiciary to redact his name from all court documents and disassociate him from future judicial research.  Ahn also requested that the court seal his court records.

Grube opposed Ahn’s request.  Grube argues that sealing these court documents would violate the public’s constitutional right of access to court records.  Grube also says that HRS § 831-3.2(f) interferes with this court’s constitutional authority over its own records and procedures.  The Office of the Public Defender submitted an amicus brief.  It argues that sealing the case records does not violate article I, section 4 of the Hawaiʻi Constitution or the First Amendment and that HRS § 831-3.2(f) does not encroach on the Judiciary’s independence or its power to administer its own records.  The Department of the Attorney General also submitted an amicus brief.  It argues that HRS § 831-3.2(f) is not facially unconstitutional.

No. SCWC-21-0000687, Thursday, June 12, 2025, 10:30 a.m.

RENELDO RODRIGUEZ, individually and on behalf of all others similarly situated, Petitioner/Plaintiff-Appellee, vs. MAUNA KEA RESORT LLC, HAWAII PRINCE HOTEL WAIKIKI LLC, PRINCE RESORTS HAWAII, INC., Respondents/Defendants-Appellants. 

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 ‘Ōlelo at olelo.org/tv-schedule/.  

Attorneys for Petitioner RENELDO RODRIGUEZ:   
     Brandee J.K. Faria of the Law Offices of Brandee J.K. Faria LLLC and Mateo Caballero of Caballero Law LLLC 

Attorneys for Respondent MAUNA KEA RESORT LLC, HAWAII PRINCE HOTEL WAIKIKI LLC, PRINCE RESORTS HAWAII, INC.:  
     Richard M. Rand and Kristi K. O’Heron of Marr Jones & Wang 

NOTE: Order accepting Application for Writ of Certiorari, filed 05/05/25.  

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

Brief Description:  

This appeal arises out of a class-action suit between Petitioner Plaintiff-Appellee Reneldo Rodriguez (Rodriguez), individually and on behalf of all others similarly situated and Respondents/Defendants-Appellants Mauna Kea Resort LLC, Hawaii Prince Hotel Waikiki LLC, and Prince Resorts Hawaii, Inc.  (Mauna Kea). 

Between 2010 and 2017, Mauna Kea charged its hotel customers a “service charge” or “gratuity” on food and beverage sales, calculated as a percentage of the total cost of food and beverage purchased.  There is no dispute that Mauna Kea did not distribute the entire amount of the service charge collected to its employees as tip income, and that Mauna Kea provided written disclosures to customers that the service charges would not be distributed in full to employees.  Many of these disclosures did not specify the actual percentage or amount of the service charge that would be distributed to employees. 

Rodriguez alleged that Mauna Kea violated Hawaiʻi Revised Statutes (HRS) § 481B-14 which states that “[a]ny[] . . . [h]otel or restaurant that applies a service charge for the sale of food or beverage services[] . . . shall distribute the service charge directly to its employees as tip income or clearly disclose to the purchaser of the services that the service charge is being used to pay for costs or expenses other than wages and tips of employees.”    

The Circuit Court of the First Circuit granted in part Rodriguez’s motion for summary judgment and denied Mauna Kea’s motion for summary judgment.  It found that Mauna Kea had not specified in their HRS § 481B-14 disclosures the percentage of the service charge distributed to the employee and the percentage retained by Mauna Kea.  The Intermediate Court of Appeals reversed, holding that Mauna Kea established that its service charge disclosures were sufficient pursuant to HRS § 481B-14.  Rodriguez’s cert application was accepted. 

Rodriguez argues that Mauna Kea violated HRS § 388-6, unauthorized withholding of wages, and HRS § 480-2, unfair methods of competition, because it failed to “clearly disclose” its retention of a certain portion of the service charge. 

Manua Kea counters that HRS § 481B-14 does not require service charge disclosures to specify with particularity the fraction or percentage that is distributed to employees.  Mauna Kea also argues that its disclosures “clearly disclose” to the customer that the service charge is being used to pay for costs and expenses other than wages and tips of employees, and that these disclosures meet the requirements of HRS § 481B-14.  

No. SCAP-23-000088, Thursday, June 19, 2025, 10:30 a.m., State v. Bernard Brown

STATE OF HAWAI‘I, Plaintiff-Appellee, vs. BERNARD BROWN, Defendant-Appellant.

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

Supreme Court Courtroom
Ali‘iōlani Hale, 2^nd 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 ‘Ōlelo at olelo.org/tv-schedule/.

Attorney for Defendant-Appellant BERNARD BROWN:
     Randall K. Hironaka of Miyoshi & Hironaka

Attorney for Plaintiff-Appellee STATE OF HAWAI‘I:
     Chad Kumagai, Deputy Prosecuting Attorney

Attorney for Amicus Curiae ATTORNEY GENERAL OF THE STATE OF HAWAI‘I:
     David Van Acker, Deputy Attorney General

NOTE: Order accepting Application for Transfer, filed 03/28/24.

NOTE: Order granting motion to continue oral argument from 04/29/25 to 06/19/25 at 10:30 a.m., filed 04/17/25.

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

Brief Description:

In 2022, Defendant-Appellant Bernard Brown (Brown) was tried in the Circuit Court of the Second Circuit (circuit court) for the homicide of Moreira Monsalve (Monsalve).  Monsalve had not been seen since January 2014.  Brown was convicted by a Maui jury of murder in the second degree, and he was sentenced to a term of life imprisonment with the possibility of parole.

In 2023, Brown appealed his conviction to the Intermediate Court of Appeals.  The appeal was subsequently transferred to this court. 

In his appeal, Brown asserts several points of error, including but not limited to the following:

• the prosecution’s evidence “was insufficient to support conviction for second-degree murder”;
• “Brown’s first statement to police . . . was inadmissible at trial for want of the warning and waiver of constitutional rights”;
• the information obtained by the prosecution’s subpoena “from Hawaiian Telcom identifying Brown as a subscriber to whom an incriminating IP address was assigned” was inadmissible at trial for violation of Brown’s constitutional rights;
• the circuit court “should have instructed the jury on second-degree murder’s included offenses” because there was a rational basis to instruct on murder’s included offenses;
• the prosecutor’s repeated use of the phrase “we know” during closing and rebuttal arguments was prosecutorial misconduct;
• preindictment delay violated Brown’s rights to a speedy trial and “should have triggered dismissal with prejudice.”

No. SCWC-21-0000504, Thursday, June 19, 2025, 2 p.m., State v. Smith

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellant, vs. BRIAN LEE SMITH, 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 ‘Ōlelo at olelo.org/tv-schedule/.  

Attorneys for Petitioner/Defendant-Appellee BRIAN LEE SMITH: 
     Michael H. Schlueter, Jason R. Kwiat, Andrew M. Kennedy,  Eli N. Bowman and Nicole K. Bowman of Schlueter, Kwiat &  Kennedy LLLP 

Attorney for Respondent/Plaintiff-Appellant STATE OF HAWAI‘I:   
     Charles E. Murray III, Deputy Prosecuting Attorney 

NOTE: Order accepting Application for Writ of Certiorari, filed 04/29/25. 

NOTE: Order granting motion to continue oral argument from 06/05/25 to 06/19/25 at 2:00 p.m., filed 05/08/25.

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

Brief Description: 

This case arises out of petitioner Brian Lee Smith’s (“Smith”) convictions for murder in the second degree for shooting and killing Thomas Ballesteros, Jr., and attempted murder in the second degree for shooting and injuring Nikolaus Slavik.  

The indictment notified Smith that he was subject to a mandatory minimum sentence under Hawai‘i Revised Statutes (“HRS”) § 706-660.1. HRS § 706-660.1 is titled “Sentence of imprisonment for use of a firearm, semiautomatic firearm, or automatic firearm in a felony.”  It states that a person convicted of a felony, “where the person had a firearm in the person’s possession or threatened its use or used the firearm while engaged in the commission of the felony, whether the firearm was loaded or not, and whether operable or not,” in addition to the indeterminate term of imprisonment for the offense, may be sentenced to a mandatory minimum sentence of up to fifteen years for murder in the second degree and attempted murder in the second degree.  

The statute contains no mens rea modifying “possession,” “threatened use,” or “use.”  After his initial conviction was set aside by the Intermediate Court of Appeals on unrelated grounds and the case was remanded for a new trial, Smith filed a motion to strike the HRS § 706-660.1 portions of the indictment.  He argued that a sentencing enhancement is an element of the underlying offense and that to satisfy due process requirements, the State must also allege the applicable mens rea in the charging document.  The Circuit Court of the Third Circuit agreed and granted Smith’s motion to strike the enhancement from his indictment.  

The State appealed and the ICA vacated the circuit court’s order.  In his application for writ of certiorari Smith asserts that the State must allege and prove state of mind for a minimum sentence enhancement for firearm use or possession.