Showing posts from January, 2011

Defaulting Parental Rights: a Harsh, Drastic (and Erroneous) Sanction

In re TW (ICA January 31, 2011) Background. The Department of Human Services filed a petition for temporary foster custody over TW and away from the child's mother on the grounds that the mother admitted to leaving her eight-month-old child with a seventeen year old babysitter from Friday afternoon to Sunday morning so that the mother could finish her community service work. The DHS concluded that the seventeen year old was not an appropriate caregiver. The police took away the child and put the child in the custody of DHS. The mother appeared with counsel at the hearing on the petition and demanded a trial. The family court set a date for trial. At a later hearing, the mother presented evidence in support of her opposition to the petition. At the end of the trial, the family court sustained the petition and ordered the implementation of a family service plan. The family court ordered the mother to appear for the review hearing roughly six months later. At that

Political Questions: all six or just two?

OVERRULED (in part)! Nelson v. Hawaiian Homes Commission (ICA January 12, 2011) Background. Richard Nelson and six others filed a lawsuit against the State seeking declaratory and injunctive relief. In their complaint, the Plaintiffs alleged that there were thousands of people on the waiting lists for Hawaiian Home Lands lots and that some have waited for decades. Plaintiffs also alleged that the State did not appropriate any funds from the general revenue to the operating budge for the Department of Hawaiian Home Lands (DHHL) until 1987. In 1994, the legislature enacted a law authorizing payment to DHHL of $30 million per year for 20 years. However, between 1989 through 2007, the State funding for the DHHL never exceeded 0.5% of the State budget. The Plaintiffs argued that the Hawai'i Constitution required funding for the DHHL and that as trustees, the Hawaiian Home Commission breached its fiduciary duty in not seeking appropriations from the legislature. The circ

HSC OK's Paroling Authority's Retroactive Application of its own Decision

Garcia v. State (HSC December 21, 2010) Background. David Garcia pleaded guilty to five counts of robbery in the 2d degree. He was sentenced to ten years with a mandatory minimum of three years, four months for the first count. For the remaining four counts, he was sentenced to ten years running concurrently. However, count I would run consecutively with counts II-IV. The Hawai'i Paroling Authority (HPA) fixed a minimum term for each count at seven years. Garcia received credit for each of the five counts. After that, the HSC held in State v. Tauiliili , 96 Hawai'i 195, 29 P.3d 914 (2001), that pursuant to HRS § 706-671, jail credit for consecutive terms must be given in the aggregate, not for each term. The Department of Public Safety (DPS) issued a written policy effective January 1, 2005, for calculating credit in light of Tauiliili . The HPA recalculated Garcia's credit. Garcia filed a petition pursuant to Hawai'i Rules of Penal Procedure (H