ICA Upholds Native Hawaiian Protestor's Conviction for Stopping Construction at Haleakala (OVERRULED)

 State v. Kaeo (ICA June 29, 2021)

Overruled by HSC Here.

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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