Hawai'i Legal News

Murasko v. Loo (HSC March 7, 2011) Background. The Muraskos filed a petition for a temporary restraining order (TRO) and injunction against their neighbors, the Curells. District Court Judge Loo reviewed the petition, granted the TRO, and set a hearing to determine a longer injunction. The Curells, appearing pro se, filed a response denying the allegations. At the hearing, the parties presented evidence, Judge Loo granted the petition, and ordered a three year injunction to take effect August 10. On August 12, the Curells, now with counsel, filed a motion for an extension of time in order to file "post-verdict motions." Counsel for the Curells explained in the motion that he had been retained on August 5, and was unable to file any motions because he would be on vacation from August 11 through August 18. Counsel wanted to extend the time to Sept. 1. The district court granted the motion. On Sept. 1, the Curells filed a motion for a new trial pursuant to D...

State v. Silver (HSC February 2, 2011) Background. Barry Silver was charged with five counts of sexual assault in the third degree. HRS § 707-732(1)(b). At trial, the complaining witness, a boy, testified that he and his father visited Maui on vacation and stayed at the condominium of the Josefsbergs in Ka'anapali. Silver also was staying at the condo. The boy testified that one day he was playing in the swimming pool with Silver and his father. Silver and his father would throw him back and forth between them. Silver would hold the minor's buttocks to hoist him in the air and throw him. He could not recall Silver grabbing him, but he did testify that Silver touched his crotch and his buttocks. The boy's father testified that although there was a lot of physical contact in the pool, he described it as "horseplay" and he would not have known if Silver's hands were underneath the boy's buttocks. A few nights after playing in the pool, ...

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...

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...

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...

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 ...

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...