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Showing posts from May, 2008

Can we get that in writing!?

State v. Shannon (HSC May 29, 2008)

Background. Shannon pleaded guilty to criminal trespass in the second degree and moved for a deferred acceptance of a guilty plea on February 11, 2005. The district court granted the motion and deferred for a period of one year. After entering the DAG, Shannon was arrested in an unrelated incident in violation of one of the many conditions imposed during the deferral period. The State orally moved to revoke the acceptance of the DAG plea on January 27, 2006. After continuing the hearing twice, the district court rejected all of Shannon's arguments--including the argument that he successfully completed the deferral period as of February 11, 2006 because the State failed to toll the period by filing a written motion to revoke--and revoked Shannon's motion to defer.

The ICA reversed because the State was required to give Shannon written notice of the terms and conditions of the DAG. Judge Nakamura dissented and would have adopted the federal cour…

"Action"-packed Algae not Covered by old EIS.

Ohana Pale Ke Ao v. Board of Agriculture (ICA May 21, 2008)

Background. Mera Pharmaceuticals has been a tenant on a science and technology park owned by the State just outside of Kailua-Kona on the Big Island since 1995. The park itself was subject to an environmental impact statement (EIS) in 1976 to address the "support facilities" of the park and again in 1985, which recommended aquaculture products, including the housing of algae. In 2004 and 2005, Mera requested from the Board of Agriculture a permit to import genetically-modified strains of an micro-algae primarily to determine if the algae would have therapeutic value (algae often is the basis for antibiotics). Mera was required to get a permit from the Board for this particular kind of algae. HAR § 4-71A-22. The Board approved the permit without preparing an environmental assessment. Environmentalist organizations filed a lawsuit seeking declaratory judgment and injunctive relief on the grounds that the approval by th…

A Stance on Standing

Indymac Bank v. Miguel (ICA May 9, 2008)

Background. The Miguels executed and delivered a note to Alliance Bancorp on December 1, 1994, but it was signed the next day. The note was secured by a mortgage on the Miguels' house on December 1, 1994. The note and mortgage was also assigned to the Bank of New York on December 1, 1994, but it was notarized the next day. The mortgage was recorded in the Land Court. The note and mortgage was assigned to the Bank of New York on December 1, 1994, but it was recorded on October 17, 1996. Because of a TILA action brought in the United State District Court, the Miguels stopped paying the mortgage. On April 4, 2003, Indymac sued the Miguels seeking a foreclosure sale based on default and determine the amount owed to them. It was not until June 6, 2003, however, when Bank of New York's interest was assigned to Indymac; Indymac soon recorded the assignment.

Courts are for the Injured Only. For a party to bring a lawsuit, it must have st…

Personal rights and Parsimonious Probation

State v. Schaefer (ICA April 30, 2008)

Background. Steven and April Schaefer were charged with various misdemeanors on Kauai. They came to substantially the same plea agreement with the State. In exchange for deferred acceptance of no contest pleas, the Schaefers would pay restitution and "a [pre-sentence investigation (PSI)] will be completed prior to sentencing." Probation prepared a "partial PSI report," which included the names of the judge and attorneys in the case, the original and final charges, "identifying data" (e.g. name, SSN, DOB), criminal records, statements of the victims, sentencing alternatives, and letters of character. The partial PSIs were submitted to the judge and parties months in advance of the sentencing hearing. At the hearing, the defendants requested the district court to order a full-blown PSI. The request was refused. Just before imposing the sentences, the district court asked the Schaefers' counsels if their clie…

Refusing Recusal

Jou v. Schmidt (ICA April 29, 2008)

Background. Dr. Jou treated Dereas and billed her insurance company, Island Insurance. Island only paid part of the bill. It also asked Dr. Jou for more information before it made anymore payments. Dr. Jou responded in part at an unknown time. Eventually, Dr. Jou sought an administrative hearing before the DCCA, Insurance Division. Dr. Jou claimed that Island owed him interest on the amount it paid as well as the outstanding payment. Island claimed it paid what it fully owed and its obligation is done. The hearings officer ruled in favor of Island. Dr. Jou appealed to the circuit court.

At the circuit court, Dr. Jou's attorney requested that the Judge Sabrina McKenna be disqualified. The attorney argued that Judge McKenna was up for retention before the Judicial Selection Committee, where an Island vice president and two lawyers who often represent Island preside. The motion for disqualification was denied and the administrative decisio…