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Showing posts from 2008

Hawai'i Adopts the Pretext Defense to Condemnation Proceedings

County of Hawai'i v. C&J Coupe Family Ltd. Partnership (HSC December 24, 2008)

Background. A large housing development by Oceanside was planned for Kona District. Between the housing area and the main highway running through Kona sits the Coupe family land. Oceanside and the County entered into a development agreement, which required Oceanside to build a by-pass to the highway. If Oceanside could not purchase the land needed for the bypass, the mayor was authorized to condemn the necessary properties. Discretion in choosing the necessary lands, however, remained with Oceanside and the bypass was under the supervision of Oceanside. After the Coupes refused to sell, Oceanside requested the County to condemn the property for the building of a road. The Council adopted a resolution finding it necessary to exercise eminent domain and the County filed a condemnation proceeding for 2.9 acres of Coupe land. As that prepared for trial, the County brought a second action seeking …

HSC Reassesses what Constitutes a tax.

Hawai'i Insurance Council v. Lingle (HSC December 18, 2008)

Background. The Department of Commerce and Consumer Affairs is an executive agency of the State of Hawai'i. It has an insurance division that is run by the Insurance Commissioner. In 1999 the DCCA was no longer funded by the Legislature's General Fund. Instead it was funded by private persons and entities that were regulated by the DCCA or received DCCA services. Those funds for the insurance division went into a special fund--the Insurance Regulation Fund. Funds were based on assessments made by the Insurance Commissioner and paid for the carrying out of operations by the insurance division and some of the overhead of the DCCA. The money never went to the General Fund. In 2002, the Legislature merged the special fund with another fund. The Legislature determined that there was an outstanding $4 million and directed the transfer of that money to the General Fund. The Governor by line-item veto struck it down to $2 …

HSC Weighs in on when Hawaii ends its Business day.

Tataii v. Cronin (HSC December 16, 2008)

Background. Tataii ran as a Republican against Neil Abercrombie in the 2008 election. Tataii lost and filed a complaint in the HSC challenging the election pursuant to HRS §§ 11-172 and 174.5 on November 24, 2008 at 4:32 p.m.--twenty days after the election. Abercrombie filed a motion to dismiss the complaint on the grounds that it failed to state a claim upon which relief could be granted and that the filing of the complaint was untimely.

A Directory "shall" and a Mandatory "shall." A complaint alleging an election challenge "shall be filed not later than 4:30 p.m. on the twentieth day following the . . . election." HRS § 11-174.5(a). When it comes to a specific time provision in a statute is generally, "mandatory and not merely directory." Coon v. City and County of Honolulu, 98 Hawai'i 233, 255, 47 P.3d 348, 370 (2002). However, while the word "shall" is generally mandatory, it may …

Sanctioning Attorney's Fees/Costs Requires Bad Faith

Kaina v. Gellman (ICA December 11, 2008)

Background. Kaina's son was injured in a motorcycle accident in East Maui. He was treated by Dr. Gellman at the Hana Community Health Center, of which Vasconcellos was the executive director. The day after Dr. Gellman's treatment, Kaina's son died. Kaina sued Dr. Gellman, Vasconcellos, and the Health Center for negligence and the negligent hiring of Dr. Gellman. Although they did not raise it in a motion, the defendants brought up the issue of a bifurcated trial in a reply memorandum regarding their motion for summary judgment. Ten days before trial, the circuit court, Judge August, bifurcated Kaina's claims over Kaina's objection. Judge August, upon Kaina's request, recused himself and the case was transferred to Judge Joseph Cardoza. After the recusal, Judge August issued the orders pertaining to the summary judgment and the bifurcation.

Before Judge Cardoza, Kaina filed a motion to consolidate back into a single…

Unambiguous and Undefined terms of Endearment

Royal Kunia Community Association v. Nemoto (ICA November 28, 2008)

Background. The Nemotos lived in a planned residential community where a restrictive covenant ran with the land. The covenant stated that any "improvement" to the property was subject to the approval of a design committee; there was, however, a provision allowing "landscaping" without approval. The Nemotos sought approval to pour a slab of cement around their home. The committee approved only part of their plan and asked for more specific plans. However, the Nemotos laid the cement in front of their house, poured gravel over the cement, and deemed it a "Japanese rock garden." Months later the Community Association requested the Nemotos weigh a truck parked on their property. The covenant prohibited any trucks weighing with more a one-ton capacity near any of the lots. The Nemotos did not respond to the request and the Association investigated the weight of the truck and determined …

The Limits of Forfeiture

Carlisle v. One Boat (HSC November 17, 2008)

Background. DLNR officers stopped a boat off the coast of Waianae. They saw the boat operators pulling up a net without a diver in the water. Pieces of coral were in the nets. The State petitioned the circuit court to forfeit the boat based on violations of DLNR administrative rules preventing the taking of stony coral. HAR §§ 13-95-70 and 13-95-71. The claimants moved to dismiss the petition on the grounds that the violations were not "covered offenses" and thus the State had no power to forfeit the coral. The circuit court agreed with the claimants and dismissed the petition by an order. However, the judgment was prepared by the State two years later. Once the judgment was entered, the State appealed to the ICA, which found appellate jurisdiction and reversed the circuit court.

An Appealable Order is a Final one. The HSC agreed with the ICA that there was appellate jurisdiction. In a civil appeal, the notice of appeal must be file…

When Holding is not "Maintaining"

Nu'uanu Valley Association v. City and County of HNL (HSC October 24, 2008)

Background. A landowner sought to develop approximately 50 acres of steep mountainside property in upper Nu'uanu Valley. The landowner submitted an application to the City's Dept. of Planning for approval of developing nine residential lots. The Nu'uanu Valley Assocation, a non-profit organization, requested from the City copies and inspection of all comments and engineering reports pertaining to the proposed subdivision. The City explained that its comments on submitted reports are sent back to the applicant. Nothing becomes available until they have been "accepted" by the City. After the City "accepted" a drainage report, it was made available for copying. The NVA sued the City alleging violations of the Uniform Information Practices Act (HRS chapter 92F) and the Hawai'i Environmental Policy Act (HRS ch. 343) because an environmental assessment was not done. The City pr…

Where There's a Right of Action, There's a way

Partially Overruled in County of Hawai'i v. Ala Loop
Pono v. Molokai Ranch (ICA October 21, 2008)

Background. Molokai Ranch owned agricultural lands on the western end of Molokai. The Ranch asked the then-Mayor Linda Crockett Lingle and other Maui County officials if commercial campgrounds could be developed on these lands and, if so, what permits were needed. The County informed the Ranch that development was possible and that permits were needed for tents, yurts, and other camping facilities. The Ranch got the permits and started developing. An unincorporated association of Molokai residents called Pono sued the Ranch, Maui County, and the mayor and her officials. Pono sought a declaratory order stopping the development because it violated the state land use law (HRS ch. 205) and county zoning laws. The circuit court dismissed those counts because it failed to exhaust administrative remedies--it did not bring their claim before the County's Board of Variances Appeals--a…

Prejudice Pushes Aside Mootness Doctrine

Hamilton v. Lethem (HSC October 14, 2008)

Background.
Hamilton, the mother, filed a temporary restraining order on behalf of her daughter against Lethem, the father. At the hearing on the TRO, Lethem raised the parental justification defense, but the family court confirmed the TRO. Lethem appealed to the ICA and while it was pending, the TRO expired. The ICA concluded that the appeal was moot and no exception applied. A majority proceeded onto the merits of the appeal, reversed the family court, and ordered the family court to dismiss the case. Judge Foley dissented because he believed the appeal should have been dismissed for mootness.

The Mootness Doctrine. A case is moot "where events subsequent to the judgment of the trial court have so affected the relations between the parties that the two conditions for justiciability relevant on appeal--adverse interest and effective remedy--have been comprised." Lathrop v. Sakatani, 111 Hawai'i 307, 312-13, 141 P.3d 480, 4…

Constitutional Challenges to Evidentiary Rulings and a Contested Election

State v. Kassebeer (HSC September 30, 2008)

Background. Kassebeer and his ex-wife, the complaining witness, were still having sexual relations. One night Kassebeer saw the complaining witness and was convinced that she was seeing someone else. In the early morning hours of 4-10-04, Kassebeer to her apartment in search of evidence that she was sleeping with another man. When she got home, Kassebeer grabbed her, covered her mouth, and confronted her with his suspicions. She was talking with her friend, Hashimoto-Matautia, when she got home on her cell phone. Hashimoto-Matautia called the police, but nothing came of it. That afternoon, Kassebeer went back to the complaining witness's, but she was not at home. The people who took him there had to leave, and he was alone in her apartment. He saw her coming home on her cell phone and waited for her. According to the complaining witness, Kassebeer was forceful and raped her when she got home. During that time, Hashimoto-Matauti…

Notice Requisites not an Unconstitutional Impediment

State v. Pond (HSC September 29, 2008)

Background.
Pond was charged with abuse of family or household member (HRS § 709-906) and interference with reporting an emergency or crime (HRS § 710-1010.5). Just before trial, Pond asked for a continuance so that he could give reasonable notice to the State pursuant to HRE Rule 404(b). Pond wanted to present evidence that Russell "smacked" Pond about two weeks before the alleged abuse. Pond did not provide notice earlier because he did not have the actual time of the "smack" until the morning of trial. The circuit court denied the continuance and denied the admission of the evidence because the notice was not "reasonable."

At trial, Miae Russell testified that Pond, her boyfriend, came home drunk one night and attacked her. Russell testified that she tried to call the police for help, but Pond grabbed the phone and threw it against the wall. She admitted that she hit him back, but explained that it was in self defen…

ICA Demands Post-Trial (and Perhaps Post-Conviction) Examination of DNA in "Unusual Circumstances"

State v. Pavich (ICA September 16, 2008)

Background. Dr. Bird was found dead in his Kihei, Maui apartment. Blood was smeared on the walls, soaked on a pillow near his head, and on a bunch of napkins. The cause of death was "manual strangulation." Pavich was Avilla in her Kihei apartment along with Estencion, Granados, and Abraham. Pavich was charged with burglary in the first degree, kidnapping, robbery in the first degree, murder in the second degree, and was separately charged with possession of methamphetamine and possession with the intent to use drug paraphernalia. All seven counts were tried together. The State sent to a private laboratory, Genetic Technologies, the bloody napkins for a DNA analysis. Pavich's hired another laboratory for an independent DNA analysis with Forensic Science. Genetic Technologies reported that the blood on the napkins could belong to Bird, Pavich, or Avilla. During jury selection, the State sent Pavich a supplemental report whi…