Showing posts from 2010

HSC Distinguishes Wheeler for the dogs

State v. Mita (HSC December 21, 2010) Background. Wanda Mita was charged with animal nuisance (Revised Ordinances of Honolulu § 7-2.3. She was first issued a citation stating that Mita "did own, harbor or keep" two brown boxers , Roxy and Obie, at her home "and did commit the offense of . . . animal nuisance-Sec.: 7-2.3 Barking Dog[.]" The citation also indicated that this was Mita's third nuisance citation. When Mita appeared in court, the prosecutor gave this oral charge: On or about June 3rd, 2008, in the city and county of Honolulu, state of Hawaii, you as the owner of an animal, farm animal, or poultry engaged in animal nuisance as defined in section 7-2.2, thereby violating section 7-2.3 of the Revised Ordinances of Honolulu. Mita objected on the grounds that the charge was insufficient. The district court overruled the objection, and Mita pleaded not guilty. At trial, Mita renewed her objection in a motion for acquittal. The district

Prior Convictions: Essential Element, not Sentencing Factors

State v. Bryan (ICA November 30, 2010) Background. The State brought two cases against Bryan. In one case, Bryan was charged, among other things, with operating a vehicle while her license was suspended pursuant to a prior OUI offense (HRS § 291E-62) and open container. The license charge went like this: On or about the 3rd day of September, 2004, in the City and County of Honolulu, State of Hawaii, ERIN E. BRYAN, . . . , a person hose license and privilege to operate a vehicle has been revoked, suspended, or otherwise restricted pursuant to [the OUI statutory scheme], did operate or assume actual physical control of any vehicle while her license or privilege to operate a vehicle remained suspended or revoked. In the second case, Bryan was charged with a single count of operating a vehicle after license and privilege have been suspended for operating a vehicle while under the influence of an intoxicant. It essentially tracked the same language. It did not include any language abo

Benefits-for-Life Provisions Deemed Permissible (under old law)

First Insurance Co. v. Dayoan (ICA November 18, 2010) Background. Dayoan was injured in a motor vehicle accident in 1998. He was 60 years old. He had an insurance policy with First Insurance. The accident left Dayoan disabled and unable to work as a kitchen helper and dishwasher at Jimmy's Drive Inn in Hilo as well as growing produce for additional income. Dayoan applied for benefits pursuant to his insurance policy. First insurance paid Dayoan $1,500 a month. The policy stated that wage loss benefits could continue "only if the treating health care provider determines the 'insured' is disabled from employment to which the 'insured' is suited by education, training and experience." The wage loss benefits would expire upon Dayon's death. Dayoan's inability to work is not in dispute. After paying wage loss benefits for about seven years, First Insurance brought a declaratory judgment action. The action sought the circuit cou

Jurisdiction Hinges on the Statute, not the Rules

In re Tax Appeal of Aregger (ICA November 18, 2010) Background. The Board of Taxation Review ruled on October 1, 2008, in favor of the Director of Taxation against the Areggers in an amount of $7,308.37. The Areggers filed a notice of appeal to the tax court on October 29, 2008. The certificate of service showed that a copy of the notice was mailed to the tax assessor. No copy was sent to the Director of Taxation. Notice of entry was filed by the clerk of the tax court on October 30. The notice was mailed to the Director. The Director challenged subject matter jurisdiction in his answer and later filed a motion to dismiss based on a lack of jurisdiction. The tax court granted the motion. The Areggers appealed. Statutes Require Service on Director. Tax appeals are "properly commenced by the filing . . . of a written notice of appeal in the office of the tax appeal court within thirty days after the filing of the decision of the state board of review . . . a

Native Hawaiian Rights--Once Proven--still must be Weighed Against State Interest

State v. Pratt (ICA November 18, 2010) OVERRULED! Background. The State charged Lloyd Pratt with three violations of camping in a closed area within the Kalalau State Park . HAR § 13-146-04(a). Pratt filed a motion to dismiss the prosecution on the grounds that he was a Native Hawaiian engaged in a constitutionally-protected traditional and cultural practice. Pratt argued that he was a kahu or religious practitioner who was a caretaker of the land and, as part of his traditional practices, goes into the Kalalau Valley to tend to the heiau there and perform cultural ceremonies. At the hearing on the motion, Pratt presented evidence that he was 75% Hawaiian through genealogical records. He did not have any genealogical records establishing that his ancestors came from Kalalau Valley. Pratt also presented evidence that he was a kahu, a religious practitioner whose duties include cleaning and repairing ancient heiau. Other duties include planting trees and clearing debris.

Only one Award is Subject to Review--the Final one.

Background. UPW brought two class-action grievances against the employer, the City and County of Honolulu, based on violations of the collective bargaining agreement. The grievances were denied by the City's human resources department. The parties agreed to arbitrate pursuant to the CBA and the circuit court consolidated the grievances and appointed Keith Hunter to arbitrate. The City contested whether these grievances could be arbitrated at all. The arbitrator held a hearing on the issue and concluded that the grievances were subject to arbitration--in other words, that he had jurisdiction. The UPW filed in the circuit court a motion to confirm the decision and "award" by the arbitrator. The motion was granted and the City appealed. The Arbitration Statute Confers Appellate Jurisdiction to "Awards." Appeals in arbitrations may be taken from "[a]n order confirming or denying confirmation of an award[.]" HRS § 658A-28(a)(3). Accor

Pretext Defense may Exist, but Tough to Prove

County of Hawai'i v. C & J Coupe Family Ltd. Partnership (HSC November 10, 2010) Background. A development company wanted to build a large housing subdivision straddling North and South Kona on the Big Island. The company and the County entered into a Development Agreement requiring the company to build a bypass highway between Keauhou and Captain Cook. The County would exercise eminent domain to condemn the land of property owners who refused to sell. The company tried to buy out all of the landowners necessary to construct the highway, but the Coupe family refused to sell. Pursuant to the Development Agreement, the County Council authorized the condemnation of the 2.9 acres of Coupe land, and brought the appropriate lawsuit. The Coupes argued that the condemnation was not for public use. While that was pending, the County condemned another 3.348 acres of Coupe land on the grounds that the bypass would provide "a regional benefit for the public purpose an

Remanding for Conviction on the Lesser-Included Offense not Always so

State v. Bullard (ICA September 27, 2010) Background. Bullard was prosecuted for excessive speeding. HRS § 291C-105(a)(1) and (a)(2). At trial, Officer Corinne Rivera testified that she paced Bullard's vehicle in her own "subsidized" police vehicle--a Toyta 4Runner. Officer Rivera testified that her Toyota gets an annual speed check at a place called "Roy's." Over Bullard's objection, the district court admitted Officer Rivera's speed check card from Roy's Kalihi Automotive Center & Towing. Officer Rivera testified that Bullard was going 91 m.p.h. The district court took judicial notice that that stretch of highway had a speed limit of 55 m.p.h. Bullard testified in his own defense. He admitted to speeding, but not excessive speeding. The district court found Bullard guilty of excessive speeding. The Error Conceded. Bullard and the prosecution agreed that the district court erred in admitting the speed card check be