ICA Upholds Native Hawaiian Protestor's Conviction for Stopping Construction at Haleakala (OVERRULED)
State v. Kaeo (ICA June 29, 2021)
Background. Samuel K. Kaeo was
charged with disorderly conduct. HRS § 711-1101(1)(d). The prosecution
presented evidence at the bench trial of a convoy of vehicles scheduled to
transport materials from the Central Maui Baseyard to the Daniel K. Inouye
Solar Telescope at the summit of Haleakala. The convoy was scheduled to leave
at 10:00 p.m. The project manager of the telescope construction site testified
that at around 7 p.m., Kaeo was at the baseyard and approached him. He told the
manager to get ready because they “were in for the night.” By 8:30 p.m., the
Maui Police Department set up lights on the roadway nearby and a group of over
100 protestors were outside holding signs and walking around the crosswalk
outside the gate. At around 9:30 p.m. and later at 10, the convoy tried to get
out of the baseyard, but the protesters blocked the way. The convoy consisted
of approximately twenty people, four vehicles, three trucks, and several
mechanics trucks.
By 10:15 p.m., a group of five or six protesters
joined hands through PVC pipes and used duct tape to secure the pipes to their
arms so they could not be slipped off. The first line lied down twenty feet
from the baseyard gate. Officers arrested Kaeo, who was with the protesters on
the ground. The police could not clear the protesters until 12:45 a.m. The
district court, with the Hon. Judge Blaine J. Kobayashi presiding, found him
guilty and sentenced him to pay a fine of $200 and court fees of $30. Kaeo
appealed.
No Right to Lie Down on the Road. The ICA rejected Kaeo’s
argument that his conduct was protected by the First Amendment to the Federal
Constitution and Art. I, Sec. 4 of the Hawai'i Constitution. The constitutions,
according to the ICA, protect the freedom of speech and the right to peacefully
assemble. But it is not without limitation. “A group of demonstrators could not
insist upon the right to cordon off a street, or entrance to a public or
private building, and allow no one to pass who did not agree to listen to their
exhortations.” Cox v. Lousiana, 379 U.S. 536, 554-555 (1965). Hawai'i
courts are in accord. State v. Jim, 105 hawaii 319, 334, 97 P.3d 395,
410 (App. 2004); State v. Guzman, 89 Hawai'i 27, 36, 968 P.2d 194, 203
(App. 1998). The ICA here held that lying down on the ground connected with PVC
pipes in order to prevent the convoy from leaving the baseyard is outside the
protections of the First Amendment and Haw. Const. Art. I, Sec. 4.
Reviewing Who’s Competent to Testify. Kaeo challenged the
finding of fact that there was only one practical way in and out of the
baseyard to get to the highway and ultimately Haleakala. This evidence came
from the project manager’s testimony. “A witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal knowledge may, but
need not, consist of the witness’ own testimony.” HRE Rule 602. It cannot be
based on speculation and the witness “must testify based on personal knowledge,
which by definition means the witness perceived an event and has a present
recollection of that perception.” State v. Wakamoto, 143 Hawai'i 443,
452, 431 P.3d 816, 825 (2018).
Here the manager testified he had been working on
the project for four and a half years, oversaw day to day operations, and had
been to the baseyard several times. This was sufficient foundation for the ICA
to hold that the finding was not clearly erroneous. See State v. Enos,
147 Hawai'i 150, 158-159, 465 P.3d 597, 605-606 (2020).
The Convoy and Workers Constituted “Members of the
Public.” Disorderly
conduct requires proof beyond a reasonable doubt that the defendant, “with
intent to cause physical inconvenience or alarm by a member or members of the
public . . . creates a hazardous or physically offensive condition by any act
which is not performed under any authorized license or permit.” HRS § 711-1101(1)(d).
The ICA rejected Kaeo’s argument that the convoy
of workers did not constitute “members of the public.” The ICA disagreed. “Public”
means “affecting or likely to affect a substantial number of persons.” HRS § 711-1100.
A “public place” is a place in “which the public or a substantial group of persons
has access and includes highways[.]” Id. The ICA held that the convoy of
four vehicles, three trucks, and several other mechanics trucks with a total of
twenty workers constituted “members of the public.”
No Choice of Evils Defense Either. The ICA upheld the district
court’s rejection of the choice of evils defense in HRS § 703-302. The burden is
on the defendant to show that he believed his conduct was “necessary to avoid
an imminent harm or evil to the actor or to another[.]” HRS § 703-302(1). “The
danger causing the necessity of choosing between evils must be imminent[.]” HRS
§ 703-302 cmt. The ICA rejected the argument that the years of trying to stop
the construction of the telescope did not establish an imminent harm that called
for disorderly conduct. The ICA affirmed the conviction.
Judge Nakasone’s Dissent. Judge Nakasone dissented
on the ICA’s analysis of the words “members of the public.” She rejected the
ICA’s reliance on the statutory definition of “public”—that is “affecting or
likely to affect a substantial number of persons”—made no sense. The same goes
for applying the word “public” as a noun when for her the definition clearly is
describing an adjective. Rather than relying on statutory definitions that made
little sense, Judge Nakasone applied what she called the “ordinary meaning of ‘the
public’ to the disorderly conduct statute[.]” See Wells Fargo Bank, N.A. v. Omiya,
142 Hawai'i 430, 449, 420 P.3d 370, 380 (2018) (words “must be taken in their ordinary
and familiar signification”). She relied on the dictionary definition of the
noun, “public,” which means “the community or people as a whole” or “ordinary
people in general.” The American Heritage Dictionary (2d. college ed. 1982).
For Judge Nakasone, the word “the public” would mean more than the 20 people
involved in the convoy. She would have reversed.
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