Showing posts from March, 2008

No Savior from Waiver

Peroutka v. Cronin (HSC March 27, 2008) Background. Peroutka with Baldwin and Ralph Nader with Camejo filed petitions with the Hawai'i Office of Elections to place their names on the presidential ballot as candidates for President and V.P. The Office of Elections rejected their petitions for a failure to collect the requisite number of signatures. Many of the signatures were stricken because they were not accompanied by an address, date of the signature, or other information. Both requested administrative hearings. At the Nader/Camejo hearing, it was agreed that a Nader representative would "flag" disputed signatures; that the Chief Election Officer would review the signatures and that his decision was final; and that Nader/Camejo reserved the right to challenge the constitutionality of Hawai'i regulations and statutes. At the Peroutka/Baldwin hearing, Peroutka objected to having the Chief Election Officer preside over the hearing. The agency concluded that

DHS owes a duty of care to Children it Investigates.

Kaho'ohanohano v. Dept. of Human Services (HSC March 20, 2008) Background. A two-and-a-half-year-old child broke her leg while under the custody of her mother and her mother’s boyfriend. While DHS investigated the matter as to whether it was child abuse, it allowed the child to stay with the mother and boyfriend. Before finishing the first investigation, the child suffered life-threatening abdominal injuries. DHS later determined that it was indeed child abuse and custody went over to the father. The father sued DHS alleging negligence in failing to protect the minor, take timely custody, and conduct a reasonable and competent investigation. After a 16-day bench trial, the circuit court found DHS liable for negligence and the negligent infliction of emotional distress. Damages were apportioned jointly and severally among the mother, her boyfriend, and DHS. So you want to sue the State, huh? Sovereign immunity means that the State cannot be liable unless it has relinquished im

Statutory Interpretation is Plain as day.

State v. Mainaaupo & State v. Lopez (HSC March 5, 2008) Background. Both Mainaaupo and Lopez were charged with unauthorized control of a propelled vehicle (UCPV) (HRS § 708-836). Both went to a jury trial. Both Lopez and Mainaaupo asserted the mistake-of-fact defense (HRS § 702-218) on the grounds that both believed that the person who authorized their use of the vehicle was the registered owner. The circuit court, in both cases, denied their request to have a mistake-of-fact jury instruction read. In Mainaaupo's case, the circuit court also instructed the jury that he, the defendant, has a legal duty to obtain consent to operate the vehicle from the registered owner. Meanwhile, at Lopez's trial, the prosecutor made two comments in his closing argument. In the first, the prosecutor appealed to jurors' common sense and asked them to evaluate Lopez's silence after he was pulled over. The prosecutor also argued that Lopez failed to call a witness to corroborate h

One Judgment to rule them all.

Carlisle v. One Boat (ICA February 27, 2008) Overruled Background. One night off the Waianae Coast, DLNR agents spotted a fishing boat with gill nets. The agents told the people on the boat to pick up the nets with a diver in the water to ensure that no coral would be harmed. There was no such diver. Even if there had been, the agents saw several pieces of broken coral stuck in the net. The prosecutor’s office, under the aegis of the State, brought forfeiture proceedings to seize the boat that was used in the commencement of the intentional taking of live coral or live rocks in violation of HAR §§ 13-95-70 and 13-95-71. The claimants, fishermen, in a motion to dismiss, argued that these offenses are not covered by the forfeiture law. The circuit court agreed and ordered that the case be dismissed. It took almost three years, however, for the court to enter a final judgment on December 6, 2004. The State filed a notice of appeal shortly after entry of the judgment. Appealing from J