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Showing posts from December, 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…