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Showing posts from July, 2008

Liquor Commission Subject to Judicial Review

E & J Operating Co. v. Liquor Comm'n of HNL (HSC July 29, 2008)

Background. E & J Lounge applied for a liquor license with the Liquor Commission in HNL. The Commission held a preliminary hearing and determined to schedule a public hearing for the application. Three of the five commissioners appeared at the first public hearing, where it received testimony and evidence from neighbors. All five were at the continued hearing, but a different three presided over the third and final hearing. The Commission denied the application. E & J sought appealed to the circuit court pursuant to the Hawai'i Administrative Procedures Act (HRS chapter 91) on the grounds that the Commission violated various provisions of HAPA, including HRS § 91-11, which requires members who did not preside over all of the contested case to review the record before rendering a decision. The circuit court ruled that the public hearing was a "contested case" and that it had judicial rev…

Consecutive Mandatory Minimums Allow (or Require?) Consecutive Indeterminate Maximums.

State v. Kamana'o (HSC July 23, 2008)

Background. In 1983, a jury convicted Kamana'o of three class A felonies: two counts of sex assault in the first degree (HRS § 707-730) and one count of sodomy in the first degree (HRS § 707-733). Kamana'o was sentenced to the maximum of twenty years per count, but the sentence was vacated. The sentence, however, was vacated on Fifth Amendment grounds. At resentencing, the circuit court granted the State's motion for extended sentencing. The United States District Court, however, vacated that sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny. At the second resentencing, the circuit court sentenced Kamana'o to the maximum twenty-year sentence for all three counts. The circuit court ordered that the two counts for sex assault run concurrently, while the sodomy count run consecutively. The circuit court also determined that Kamana'o was a repeat offender and was subject to a mandatory minimum of five…

ICA puts law on Orders in Order

Peters v. Aipa (ICA July 14, 2008)

Background. Peters was one of the five trustees for the Bishop Estate. Aipa was the estate's general counsel and chief legal advisor for the trust. In 1998, the Attorney General brought various claims and prayed for the removal of all five trustees. The trustees settled and executed a Settlement Agreement that released, waived, and settled the claims. The probate court approved of the Agreement. The Agreement included the AG, the trustees, and "their respective Representatives," which expressly included attorneys. After the settlement, Aipa was called by the AG in a grand jury proceeding. Aipa testified against Peters. The grand jury indicted Peters of theft in the first degree and criminal conspiracy arising from a real estate transaction. Aipa never notified Peters before he testified and Peters did not waive the attorney-client privilege. The circuit court later dismissed the indictment based in part on the AG's conduct…

Rule 40 and Retroactivity Revisited

Loher v. State (ICA July 14, 2008)

Background. Loher was on trial for kidnapping and attempted sex assault in the first degree. He was represented at trial by Kugiya. To Kugiya's surprise, the State rested on the afternoon of the first day of trial. Kugiya asked the court to present Loher's case the next day, when it could get the other two witnesses to testify. The circuit court refused and instructed Loher that he had to choose between testifying that day or else he would waive his testimony. Kugiya objected because Loher may not have to testify depending on the testimonies of the two other witnesses. The circuit court still refused and Loher testified. The trial continued the next day, the two other witnesses testified, and the jury found Loher guilty of attempted sex assault in the first degree. The State moved for various enhanced sentencing. Kugiya withdrew and a new lawyer, Shintani, took over. Shintani did not oppose the sentencing motions. Loher was sentenc…