Restitution is a Collateral Consequence; Insured Losses play no part in Ordering Restitution.

State v. Tuialii (ICA June 30, 2009)

Background. Tuialii was charged with theft in the first degree (HRS § 708-839.5(1)(a)) based on an alleged transfer of about $76,000 from his employer's account to his personal account. Tuialii pleaded no contest. The no-contest plea form stated that various penalties, including restitution, could be imposed by the court. The circuit court, however, did not mention restitution during his change-of-plea colloquy. At his sentencing, the circuit court, upon the State's recommendation, ordered that Tuialii pay full restitution. The circuit court entered a free-standing order of restitution. Tuialii filed a motion pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 35 on the grounds that he did not change his plea knowingly, voluntarily, and intelligently. The motion was denied and Tuialii appealed.

No Rule 40 Petition, no Remand for Withdrawal. Tuialii argued that because the circuit court failed to mention restitution during his change-of-plea colloquy, he should be permitted to withdraw his no-contest plea. A motion to withdraw a guilty or no-contest plea may be made before the sentence is imposed or no later than 10 days after the sentence is imposed. HRPP Rule 32(d). "At any later time, a defendant seeking to withdraw a plea . . . may do so only by petition pursuant to Rule 40[.]" Id. According to the ICA, Tuialii did not move to withdraw his plea within ten days after sentencing and, thus, was required to bring an HRPP Rule 40 petition. He did not. Instead he brought an HRPP Rule 35 petition. The ICA denied remand for withdrawal of his no-contest plea.

Colloquy need not Include Restitution. The ICA held that the circuit court did not err in omitting from its change-of-plea colloquy the possibility of restitution. The court must advise the defendant of the maximum penalty provided by the law and the maximum extended term of imprisonment. HRPP Rule 11(c). HRPP Rule 11 does not require notice of restitution. The ICA also pointed out that Tuialii's plea form stated that he restitution could be imposed and that Tuialii confirmed that he read the form carefully and discussed it with his attorney.

The ICA also acknowledged that jurisdictions are split on the issue of whether restitution must be part of the change-of-plea colloquy. The ICA sided with those places that consider restitution a collateral consequence (rather than a direct consequence) of a guilty or no-contest plea that need not be part of the change-of-plea colloquy. The ICA explained that, under Hawai'i law, restitution is a "quasi-civil" compensatory sanction that is distinguished from a punitive objective like a fine. State v. Gaylord, 78 Hawai'i 127, 150-54, 890 P.2d 1167, 1190-94 (1995).

So does "quasi-civil" mean Collateral Consequence? Courts do not need to address every consequence of a defendant's changed plea. State v. Nguyen, 81 Hawai'i 279, 288, 916 P.2d 689, 698 (1996). But they must address "direct consequences" that have "a definite, immediate, and largely automatic effect on [the] defendant's punishment." Id. Collateral consequences, on the other hand, do not need to be addressed. These include things like the loss of civil rights, driver's license, or the right to possess a firearm. Id. The Hawai'i Supreme Court explained that these are collateral consequences because "they are peculiar to the individual and generally result from the actions taken by agencies the court does not control." Id. The ICA held that restitution is a "collateral consequence" because restitution is a "quasi-civil" sanction and not a fine that advances punitive objectives. State v. Gaylord, 78 Hawai'i 127, 150-54, 890 P.2d 1167, 1190-94 (1995). Has the ICA characterized sanctions with punitive objectives (e.g. fines and prison) with direct consequences? Does that mean that anything else is collateral? And so does that mean that restitution has no "definite, immediate, and largely automatic effect on [the] defendant's punishment?" Apparently so.

Restitution Statute Covers Amounts that were Indemnified by Insurance Companies. The sentencing court must "order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant's offense when requested by the victim." HRS § 706-646(2). Restitution is a "dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to [f]ull value of stolen or damaged property[.]" HRS § 706-646(3)(a). The ICA rejected Tuialii's claim that restitution was limited to the amount that was not covered by his employer's insurance company. The ICA explained that it is undisputed that Tuialii stole over $76,000 from his employer. This, according to the ICA, constitutes a "loss" under the restitution statute. The ICA noted that deducting the covered amount from the "loss" would be creating an exemption that is not in the restitution statute. Contra HRS § 706-646(4).

Insured Amount is not Reduced from the Restitution Award. Looking to courts of other jurisdiction, the ICA held that indemnification by an insurance company does not affect the amount in restitution a defendant must pay. The ICA explained that repayment of the full amount that the defendant stole or damaged "furthers the rehabilitative purposes of HRS § 706-646 to the greatest extend possible. . . . The interests of justice would not be served by allowing a thief to retain or otherwise benefit from the spoils of his crime because he picked a victim who was prudent enough to have obtained insurance."

But what about a Windfall? The ICA stated that it was "confident that legal or equitable principles, properly raised, will preclude any double recovery against Tuialii in a civil action or any unjust enrichment of either [the employer] or its insurer." After all, when the insurer pays a claim for damages caused by the wrongdoer, the insurer "is entitled to be subrogated to the insured's rights against such party." State Farm Fire and Casualty Co. v. Pacific Rent-All, Inc., 90 Hawai'i 315, 328, 978 P.2d 753, 766 (1999). The ICA also noted that a court in a criminal case "need not sort out insurance indemnities, subrogation rights, and/or other potential civil law implications before ordering a thief or other criminal to repay his [or her] victim under the criminal restitution statute."

Excessive Speeding Statute's Sentencing Provision Leaves Nothing to Discretion of Sentencing Courts.

State v. Nakamura (ICA June 29, 2009)

Background. Nakamura pleaded guilty to a single count of excessive speeding (HRS § 291C-105). Nakamura agreed to, pursuant to the district court's "suggestion," a six-month license suspension among other things like a fine and community service. The district court sentenced him pursuant to the suggested agreement. Nakamura later filed a motion to correct his illegal sentence on the grounds that the suspension period was improper. Nakamura maintained that the suspension period should have been 30 days. The motion was granted in part. The district court imposed a 30-day suspension running concurrently with the original six-month suspension. Nakamura appealed.

Discretionary Authority to Suspend License Superseded by Specific Excessive Speeding Statute. Nakamura pleaded guilty to excessive speeding. A person violating the excessive speeding statute for the first time "shall be sentenced as follows . . . [t]hirty-day prompt suspension of license and privilege to operate a vehicle during the suspension period[.]" HRS § 291C-105(c)(1)(B). However, "any court of competent jurisdiction may, in its discretion, revoke or suspend the license of any driver . . . convicted of a violation of this part or of any traffic law or regulation of the State or any political subdivision thereof involving a vehicle in motion." HRS § 286-125. The ICA agreed with Nakamura and held that the district court could not suspend Nakamura's license beyond the period provided by the excessive speeding statute.

The ICA pointed out that a person violating the excessive speeding statute "shall be sentenced" in the manner provided by HRS § 291C-105. HRS § 286-125, on the other hand, affords sentencing courts the discretion to suspend a license for offenses involving motor vehicles. The discretion afforded by HRS § 286-125 cannot, according to the ICA, empower the sentencing court set a suspension period in addition to mandatory sentencing suspension under HRS § 291C-105. Put differently, the excessive speeding statute carried with it mandatory sentencing impositions which deprived the sentencing court of the ability to modify the suspended license provision.

Agreed-upon Sentences Still must be Corrected. Nakamura agreed to the six-month sentence even though he later argued to the district court that his sentence was unlawful. The ICA noted that Nakamura's agreement did not waive his ability to later challenge the legality of his sentence. "[A] sentence which does not conform to statutory sentencing provisions, either in character or the extent of the punishment imposed, is void." State v. Sequeria, 93 Hawai'i 34, 36, 995 P.2d 335, 337 (App. 2007); see also State v. March, 94 Hawai'i 250, 254, 11 P.3d 1094, 1098 (2000) ("Although the sentencing court is given broad discretion in sentencing defendants, the sentence imposed must be authorized by statute.").

Limitations on Campaign Contributions Depend on who gets it, not who Gives it.

Charmaine Tavares Campaign v. Wong (ICA June 25, 2009)

Background. Charmaine Tavares ran for mayor of Maui County, a non-statewide office with a four-year term. Tavares' campaign committee was called the Charmaine Tavares Campaign (CTC) and was organized to spend money on behalf of and accept contributions for her mayoral campaign. The CTC told the public it could accept contributions up to $4,000. Quong Enterprises, a real-estate development corporation from California, gave $2,000 to the CTC. Talboy Construction also gave $2,000. Cheeseburger in Paradise and its partner, Cheeseburger in Paradise-Waikiki, each gave $1,000. Barbara Wong, the Executive Director of the Campaign Spending Commission, informed the contributors that they violated the campaign spending laws and were subject to penalties and fines. The CTC filed a complaint seeking injunctive and declarative relief against Wong and the Campaign Spending Commission. Quong intervened. The circuit court granted summary judgment for the CTC and Quong. Wong appealed.

Plainly and Unambiguously Speaking . . . "No person or any other entity shall make contributions to . . . [a] candidate seeking nomination or election to a four-year non-statewide office or to the candidate's committee" exceeding $4,000. HRS § 11-204(a)(1)(C). On the other hand, "[n]o person or any other entity shall make contributions to a noncandidate committee" exceeding $1,000. HRS § 11-204(b). A "candidate's committee" is a committee that spends money on behalf of and accepts contributions for a candidate "with the candidate's authorization." A candidate can only have one "candidate's committee." HRS § 11-191. A "noncandidate committee," however, spends money and accepts contributions in order "to influence . . . the election of any candidate to political office, or for or against any issue on the ballot, but does not include a candidate's committee." HRS § 11-191.

According to the ICA, the statute was clear: contributions to a "candidate's committee" are limited to $4,000, HRS § 11-204(a)(1)(C), while contributions to a "noncandidate committee" are limited to $1,000. HRS § 11-204(b). It was undisputed that the CTC was Tavares' committee and not a "noncandidate committee." Thus, Quong and the others could lawfully give the CTC up to $4,000.

"Person or any Other Entity." The ICA rejected Wong's argument that the phrase "any other entity" was ambiguous. "Person" is "an individual, partnership, committee, association, corporation, or labor union and its auxiliary committees." HRS § 11-191. The words "any other entity" was not defined. The ICA concluded that the phrase "any other entity" simply meant "any entity that is not already listed in the broad definition of 'person.'"

A Matter of Receiving, not Giving. But this begs the question: what's out there than can't fall under this "broad definition of 'person'"? More specifically, what was Quong and the others? A "person" or some "other entity"? It would seem that Quong was a "person" as it was a "corporation." The ICA never answered this question. And it didn't have to. According to the ICA, the phrase "any other entity" did not cause confusion in interpreting the plain meaning of HRS § 11-204. The limitations of a contribution--be it a "person" or anyone else--hinge on whether it was given to a candidate's committee or a noncandidate committee.

Et "to," Brute? The ICA also rejected Wong's argument that the word "to" in HRS § 11-204(b) is ambiguous in light of the campaign spending reporting requirements. According to Wong, a contribution could either be given directly to the noncandidate committee or to some intermediate entity that tracks and accounts for the contributions. Wong urged the ICA to interpret HRS § 11-204(b) to require a contribution to be given directly to a noncandidate committee and nothing in between. The ICA held that while there are indeed separate reporting requisites in the campaign spending law (HRS §§ 11-212 and 11-213), it does "not cast doubt on the contribution limit set forth in HRS § 11-204(b)." The ICA noted that HRS § 11-204(b) limits any and all contributions by a person or other entity to $1,000. It does not require "that every contribution . . . be made in the first instance to a noncandidate committee."

But what Would Ambiguity get you Anyways? Wong made two arguments for an ambiguous statute. Why? "In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool." Kapuwai v. City and County of Honolulu, 119 Hawai'i 304, 309, 196 P.3d 306, 311 (App. 2008). It seems that if the statute is ambiguous, the courts are free to examine the legislative history and other extrinsic aids to determine its true meaning. But would Wong's arguments have been able to get to the crux of the case? Probably not. Wong argued that the phrase "any other entity" and the word "to" were ambiguous. Even if the ICA agreed with her, the rule of construction allows courts to examine the context of the "ambiguous words and phrases." Id.

Another reason for urging ambiguity is deference. Courts recognize that "deference to agency expertise is a guiding precept where the interpretation and application of broad or ambiguous statutory language by an administrative tribunal are subject to review." Holi v. AIG Haw. Ins. Co., Inc., 113 Hawai'i 196, 206, 150 P.3d 845, 855 (App. 2007). The ICA found no ambiguity here and thus was not obligated to defer to the Campaign Spending Commission's interpretation of HRS § 11-204.

No Legislative Support Anyways. The question of what ambiguity gets the Commission is purely academic in this case. The ICA disagreed with Wong's assertion that the plain and unambiguous interpretation of HRS § 11-204(a)(1)(C) defeated the purpose of disclosure and reporting requirements. According to the ICA, HRS § 11-204 limits campaign contributions. It does not speak to reporting the contributions. The ICA also noted that the legislative history behind HRS § 11-204(b) "contradicts or is inconsistent with" the plain and unambiguous language of the statute itself. Thus, it did not support Wong's claim that contributions to noncandidate committees "was intended to override the limit in HRS § 11-204(a)(1)(C) for contributions to candidates and candidate committees."

For Another Perspective. Blogger, Ian Lind, has been following this case. Here's his take.

ICA Extends Tachibana to Juvenile Proceedings

In re TKC (ICA June 24, 2009)

Background. The State filed a petition against TC, a juvenile, alleging ten counts of engaging in sexual conduct with a person less than fourteen years old. TC was less than fourteen years old at the time of the incidents. The family court conducted a "stipulated trial." Police reports and the reports of a psychologist were stipulated into evidence for the family court--as the trier of fact--to review. The stipulation did not discuss TC's waiver of his right to testify; it merely said that the stipulation was "through and upon the advice of his attorney." After the evidence was submitted, TC's parents filed a motion to examine the makers of the various reports. The motion was opposed by the State on the grounds that the parents lacked standing. The family court denied the motion and entered findings of fact, conclusions of law, and rendered a decision that TC was a "law violator" for all counts. The family court ordered TC on probation until his 18th birthday. TC appealed.

Constitutional "Criminal" Procedures in the Prosecution of Juveniles. Although juveniles are protected by the state and federal constitutions in family court proceedings, strict adherence to criminal procedures available to adult criminal defendants are not required. In re Doe, 62 Haw. 70, 72, 610 P.2d 509, 511 (1980). The ICA noted that many procedural safeguards from the Bill of Rights apply in juvenile proceedings when the juvenile can be imprisoned for a term of years: the right to be "informed of the nature and cause of the accusation"; the right to counsel; the right to confrontation and cross-examination; and the right against self-incrimination. Id. at 72, 610 P.2d at 511. As a general rule, while juvenile proceedings need not conform to all of the requirements of a criminal trial, the proceedings must nonetheless "scrupulously maintain standards consistent with fundamental fairness." Id. at 73, 610 P.2d at 511-12.

And now this Includes the Right to Testify. TC urged the ICA to recognize plain error in the family court's failure to obtain a knowing, voluntary, and intelligent waiver of TC's constitutional rights. The ICA agreed and held that a juvenile defendant has the "right to testify on his or her own behalf as this is a fundamental constitutional safeguard which is essential to the concept of due process. " The right to testify on one's own defense is guaranteed by the state and federal constitutions. State v. Tachibana, 79 Hawai'i 226, 231-32, 900 P.2d 1293, 1298-99 (1995). This right "may not be waived by counsel as a matter of trial strategy, but may be relinquished only by the defendant." Id. Trial courts, therefore, must engage in an on-the-record colloquy with the criminal defendant to ensure that any waiver of the right to testify is knowing and voluntary. Id. at 233-36, 900 P.2d at 1300-03.

The ICA noted that the colloquy is necessary because "[m]any defendants are unaware that they have a constitutional right to testify which no one, not even their lawyer, may take away from them." Id. at 233-34, 900 P.2d at 1300-01. The ICA extended this rationale to juveniles. According to the ICA, juveniles are "particularly likely to be unaware of the constitutional right to testify on one's own behalf and particularly vulnerable to the admonitions of counsel--as well as those of parents or other authoritative adults." The ICA concluded that it "would be unduly burdensome, and inconsistent with the established rule of law in this state, to place a burden on minors to assert their fundamental constitutional rights when the supreme court has determined that this approach is too burdensome to be applied to adults."

A Kiddie Colloquy. The ICA held that juveniles must be advised of their right to testify and when the juvenile does not testify, the family court must engage in a colloquy to obtain an on-the-record waiver of that right. The ICA also noted that family courts should "take into account those special concerns that are present when young persons, often with limited experience and education and immature judgment, are involved." Here, the ICA concluded that the family court did not determine whether TC knowingly and voluntarily waived his right to testify. The error was not harmless.

Others with "Special Concerns?" The ICA noted that family courts should take into account the "special concerns" of juveniles and their inability to understand their rights. The ICA noted that most juveniles have "limited experience and education and immature judgment." There certainly may be criminal defendants out there who have the same limited experience and education and the same immature judgment. Should grown-up courts take into account the "special concerns" like a family court? It would certainly make sense. The right to testify--at least according to the ICA--is just as important in a criminal defendant's case as in a juvenile's law-violator proceeding. Shouldn't it work the other way too? After all, the basis for the piecemeal incorporation of the Bill of Rights and other constitutional protections is due process. Due process only requires certain fundamental rights, but these rights that are deemed fundamental are no different in juvenile proceedings than from criminal cases. So it would make senses that if there are "special concerns" for juveniles during the Tachibana colloquy, there ought to be "special concerns" for any criminal defendant. It questions whether a formulaic colloquy is effective at all.

Parents have Standing, but Failed to Raise Issues that were Independent from their Child. Standing to appeal typically require (1) that the person was a party to the action; (2) the person seeking a change on appeal had standing to oppose it below; and (3) the person is one affected or prejudiced by the appealable order. Keahole Defense Coalition, Inc. v. Bd. of Land and Natural Res., 110 Hawai'i 419, 428, 134 P.3d 585, 594 (2006). After culling the rules of the family court and HRS chapter 571 and noting that there is a "liberty interest in the care, custody, and control of" children protected by the due process clause in the Hawai'i constitution, In re Doe, 99 Hawai'i 522, 533, 57 P.3d 447, 458 (2002), the ICA concluded that the parents have standing to assert their claims and addressed them. The only issue that was distinct from TC's issues was the denial of their request to examine the "witnesses." Unfortunately, there was no argument supporting their contention that the family court erred in denying their request. Thus, the ICA deemed the issue waived. Hawai'i Rules of Appellate Procedure Rule 28(b)(7).

A new Theory of Standing? Standing is usually determined with a three-part test: (1) whether there was actual or threatened injury; (2) the injury is fairly traceable to the action; and (3) a favorable decision is likely to provide relief for the injury. Mottyl v. Miyahira, 95 Hawai'i 381, 389, 23 P.3d 716, 724 (2001). Standing requisites may also be "tempered, or even prescribed, by legislative and constitutional declarations of policy." Life of the Land v. Land Use Com'n, 63 Haw. 166, 172 n. 5, 623 P.2d 431, 438 n. 5 (1981). The Keahole test quoted by the ICA addresses standing to appeal from a decision and seems to be distinct from the initial inquiry of whether the appealing party had standing before the lower court or agency (As a matter of fact, the second prong of the Keahole test requires that the party have standing below.). So did the parents have standing before the family court in the first place? The ICA held that they did. But it did not apply the injury-in-fact test. It didn't even cite it. Then again, it looks like the ICA took the position that the Hawai'i Constitution, HRS chapter 571, and the rules of the family court have conferred standing to parents in juvenile proceedings.

Minors Engaging in Consensual Sexual Conduct are Committing Statutory Rape. TC and his parents conceded that the plain and unambiguous language of the relevant sex assault statutes (HRS §§ 707-730(1)(b) and 707-732(1)(b)) encompasses fact scenarios in which the actor the complaining witness are both under fourteen years old. TC and his parents argued that a literal application of the statutes produced an absurd and unjust result because it would punish children for engaging in "consensual" sex. The ICA rejected this claim. The ICA stated that despite "any reservations we may have about the result in particular instances," it could not "ignore the plain language of the statutes in question." Furthermore, the ICA noted the "age gap" in HRS § 707-732(1)(c). The legislature decriminalized sexual conduct among older teenagers (i.e. minors ages 14 or 15 may have sexual contact with other minors that are no more than five years older). According to the ICA, the legislature could have, but did not, decriminalized all sexual conduct among minors--as TC and his parents argue. The ICA did not disturb the policy adopted by the legislature and found no absurd result.

State may Prosecute one of the Consenting Minors and not the Other. TC was not the only minor engaging in sexual activity, but he was the only one prosecuted. Discriminatory enforcement of criminal laws exist when the defendant can show an "intentional or purposeful discrimination that is deliberately based upon an unjustifiable standard such as race, religion or other arbitrarily classification." State v. Kailua Auto Wreckers, Inc., 62 Haw. 222, 226-27, 615 P.2d 730, 734-35 (1999). According to the ICA, merely prosecuting one over another is not the kind of selectivity that arises into a violation of constitutional equal protection and due process rights. Moreover, it appeared to the ICA that TC was significantly older than the other minors and had engaged in several acts of sexual contact. According to the ICA, "[p]rosecutors may evaluate respective culpability, strength of witnesses and defenses, and perceived credibility, as well as consider the need to prevent future misconduct and the need for rehabilitative or educational services for accused juveniles."

No Right to Privacy to Engage in Sexual Behavior with Other kids. The ICA rejected the claim that consensual sex among minors is protected by the right to privacy under the state and federal constitutions. Minors, like adults, may have some right to sexual privacy under the federal constitution. City of Akron v. Akron Center for Reprod. Health, Inc., 462 U.S. 416 (1983). But the State may restrict this privacy right for minors when the restriction "serves a significant state interest." Carey v. Population Srvs. Int'l, 431 U.S. 678, 693 (1977). According to the ICA, legislature determined that children under fourteen must be protected from sexual activities. See State v. Buch 83 Hawai'i 308, 320, 926 P.2d 599, 611 (1996) ("children are fragile organisms that are subject to abuse and require vigilant protection"). The ICA refused to disturb the legislature's concern and held that "the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen." The ICA then examined the separate and distinct right to privacy under the Hawai'i Constitution. Haw. Const. Art. I § 6. Only "personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in this guarantee of personal privacy." State v. Mueller, 66 Haw. 616, 627-28, 671 P.2d 1351, 1358-59 (1983). The ICA simply did not find a fundamental privacy right to engage in sexual activity with other young children.

No Substantive Change in Proposed Action, no Supplemental EIS.

United Here! Local 5 v. City and County of Honolulu (ICA May 22, 2009)

Background.  In the 1980s Kuilima owned a resort on the north shore of Oahu.  Kuilima proposed a project that would expand the existing hotel, build three new hotels, a golf course, condominiums, clubhouse, tennis courts, and an equestrian center.  The project also included a number of public improvements like a wastewater treatment plant, new wells, and highway improvements.  Kuilima submitted an environmental impact statement for the project in 1985, which included projected studies up to the year 2000.  The EIS mentioned the impact on sea turtles, but did not mention any impact on the Hawaiian monk seal.  Only certain aspects of the project was completed.  In 2005 no major construction for the project had started.  However, Kuilima submitted to the county's Department of Planning and Permitting an application for a subdivision for 744 acres of the 804-acre property.  The DPP received two letters requesting the DPP to order the preparation of a supplemental EIS for the subdivision.  The DPP's position was that because the initial project had no time limitation, a supplemental EIS was unnecessary to address any changed circumstances.  The State of Hawai'i Environmental Council took the position that a supplemental EIS should be prepared.  The DPP, however, accepted the application without the supplemental EIS.  Various plaintiffs filed a lawsuit seeking declaratory and injunctive relief for the failure to order a supplemental EIS.  The circuit court granted Kuilima's motion for summary judgment on the grounds that there was no evidence showing a substantive change in conditions that would trigger a supplemental EIS.  The plaintiffs appealed.

Only a Substantive Change in the Proposed Action Triggers a Supplemental EIS.  An EIS is required before a development project can commence once certain criteria are met.  Sierra Club v. Dep't of Transportation, 115 Hawai'i 299, 306, 167 P.3d 292, 299 (2007).  Once an EIS has been accepted, "no other statement for the proposed action shall be required."  HRS § 343-5(g).  The supplemental EIS is a creature of administrative rules, not the Hawai'i Environmental Protection Act (HEPA).  A "supplemental" EIS is prepared "for an action for which a statement was previously accepted, but which has since changed substantively in size, scope, intensity, use, location, or timing, among other things."  HAR § 11-200-2.

According to the ICA, the supplemental EIS calls for a two-step inquiry: (1) whether the proposed action changed substantively in size, scope, intensity, use, or timing; and (2) if so, whether the change will have a significant effect and result in individual or cumulative impacts that were not originally disclosed in the EIS.  HAR § 11-200-26.  The ICA explained that a "substantive change" arises when the "proposed action . . . has been modified to the extent that new or different environmental impacts are anticipated."  HAR § 11-200-27.  The ICA explained that "[n]o other reading of the rules is possible" because the rules must be consistent with the mandate that once the initial EIS has been accepted "no other statement for proposed action shall be required."  HRS § 343-5(g); Capua v. Weyerhauser Co., 117 Hawai'i 439, 446, 184 P.3d 191, 198 (2008).

Rejecting Foreign Jurisdictions.  The ICA rejected the plaintiffs' argument that a supplemental EIS is required when there are changes in the intensity of environmental impacts or there are new circumstances or evidence.  Plaintiffs relied significantly on federal law--NEPA--and California environmental law statutes.  The ICA pointed out that these statutes were significantly different than HEPA and its regulations and were not persuasive.  Judge Nakamura found support for his position in federal law and in California legislation.

Time was not on Their side.  The ICA wrote that the only "substantive change" alleged by the plaintiffs was a matter of "timing" and that there was an increase in traffic.  The ICA held that there was no evidence supporting a finding of a substantive change in the project itself from the 1980s and affirmed the circuit court.

Judge Nakamura's Dissent.  A supplemental EIS, according to Judge Nakamura, is required when the proposed action becomes "an essentially different action."  HAR § 11-200-26.  Judge Nakamura pointed out that a supplemental EIS "shall be warranted when . . . new circumstances or evidence have brought to light different or likely increased environmental impacts not previously dealt with."  HAR § 11-200-27.  Based on this language, Judge Nakamura believed that there can be instances where the changed circumstances or discovery of new evidence create "an essentially different action" even though the proposed design of the project or action remains unchanged.  He gave an example.  What if, posed Judge Nakamura, a hurricane ravaged the North Shore and changed the conditions surrounding the area and its ability to accommodate more residents and visitors?  The design of the proposed action, however, had not changed.  In that scenario, Judge Nakamura wrote that the agency would be "powerless to order the preparation of an SEIS even if the discovery of new information or evidence brings to light significant environmental impacts that had not been previously disclosed."

The ICA majority commented on HAR § 11-200-27.  It stated that that language--which was relied upon by both Judge Nakamura and the plaintiffs--does not change the fact that the other rules call for a substantive change in the proposed action before considering the changed circumstances and evidence.  Judge Nakamura, however, believed that the rules were at a minimum ambiguous and that reading them so that a supplemental EIS is triggered only when the design of the project is changed would lead to absurd results.

Judge Nakamura also believed that, based on its erroneous reading of the rules, the DPP did not follow proper procedures and failed to take a "hard look" at the evidence before it.  Thus, the DPP erred and the circuit court erred in affirming.  Price v. Obayashi Hawaii Corp., 81 Hawai'i 171, 182 n. 12, 914 P.2d 1364, 1375 n. 12 (1996); Sierra Club v. Dept. of Transp., 115 Hawai'i at 342, 167 P.3d at 355.  Judge Nakamura concluded that the record does not reveal enough evidence to show whether the changed circumstances or the new evidence that has surfaced since the 1985 EIS were so significant that Kuilima's application for the subdivision required a supplemental EIS.

New Case, Same Standards, Same Holding

Sierra Club v. DOT (HSC May 13, 2009)

Procedural Background.  After the HSC reversed the circuit court and held that the Act 2 of the special session was unconstitutional because it was a "special law" in violation of Hawai'i Constitution Art. XI § 5, the DOT filed a motion for reconsideration.  The Legislature also filed an amicus brief because it was concerned about the standards for determining "general laws" rather than unconstitutional special legislation.

Reconsideration Denied, Act 2 is still Unconstitutional.  The HSC denied the DOT's motion for reconsideration.  It offered no analysis.  Along with denying reconsideration, the HSC made a few modifications and published a new opinion.  The changes appear to be slight.  A more complete analysis can be found here.

Harmonizing Bulgo.  The first change was the two-step analysis in determining a "general law."  The HSC stated that "general laws" must apply "uniformly throughout all political subdivisions of the State." Bulgo v. County of Maui, 50 Haw. 51, 58, 430 P.2d 321, 326 (1967).  The HSC clarified that a uniformly applying law which applies only to a particular class can still be a constitutional "general law" so long as "(1) the class created is genuine and not logically limited to a class of one and thus illusory, and (2) the class created is reasonable." See People v. Canister, 110 P.3d 380, 383 (Colo. 2005).  The HSC explained that a class is not "illusory" if it can include other members in the future.  Id. at 384.  The actual probability of other members joining the class must also be considered in determining if a class is illusory.  Haman v. Marsh, 467 N.W.2d 836, 849 (Neb. 1991), Republic Inv. Fund I v. Town of Surprise, 800 P.2d 1251, 1259 (Ariz. 1990).  The change appeared to harmonize the two-step analysis with Bulgo.  Bulgo still controls and signifies that a law that applies uniformly is a "general law."  But the HSC clarified that a uniformly-applying law can still apply to particular classes without running afoul with the Hawai'i Constitution.  That's where the Colorado two-step comes in.

No more References to Equal Protection.  The HSC also deleted references to an equal protection analysis.  The final paragraphs in which the HSC compared the "general laws" limitation with the equal protection clause was deleted.  The HSC also added that its "holding is based solely on our 'general law' analysis and does not in any way involve an 'equal protection' analysis, which involves a different standard."  So much for the comparison and the corporate personhood implications from Santa Clara County v. Southern Pac. R. R. Co., 118 U.S. 394 (1886)--a point raised by this site.

Botched Evidence and Interpretation of the Self-Defense Statute Leads to Reversal of Murder Conviction

State v. Kekona (ICA May 11, 2009)

Background.  Kekona was indicted for, among other things, attempted murder in the 2d degree against Ah Loo.  Before trial, the State filed a motion in limine that would prohibit any evidence that Ah Loo physically abused Kekona's girlfriend, Tammy Antonio, before the shooting.  The State argued that the evidence was irrelevant and that Kekona failed to provide adequate notice pursuant to HRE Rule 404(b).  The motion was granted to show Ah Loo's motive for ramming Antonio's car.  At the trial, the State presented evidence showing that when the police arrived at the scene--a parking lot in Waimalu--Antonio was frantic and told the police that Ah Loo was ramming her car and that she shot at him.  The police spoke with Ah Loo and saw that Ah Loo's windshield had a hole that looked like a bullet hole.  The police arrested Antonio and started looking for Kekona.  Days later, they found him, but there was no gun.  After the State rested, Kekona made an offer of proof that Ah Loo's daughters would testify that they saw their father strike Antonio on occasions before the shooting incident.  The circuit court denied Kekona's request such proof.  Kekona testified that Ah Loo punched and chocked Antonio prior to the incident.  Kekona also presented evidence that Antonio picked him up with two others named Kaualoku and Denton.  The four of them were eventually chased by Ah Loo and Ah Loo rammed his van into Antonio's car at the parking lot.  After Ah Loo rammed the car, Kekona stepped out of the car with a gun and faced Ah Loo.  According to Kekona, Ah Loo drove the van towards him and the car.  That was when Kekona fired the gun.

In the State's closing argument, the prosecutor told the jury that no evidence supported Kekona's assertion that Ah Loo beat Antonio.  Kekona moved for mistrial, which was denied.  The prosecutor also suggested that Kekona's defense of others could not stand because because Kaualoku and Denton did not exist.  Again Kekona moved for mistrial and again the motion was denied.  As for self-defense, the prosecutor told the jury that self-defense required Kekona to admit that he or she committed the crime and intended to do it, but had an excuse.  The prosecutor urged the jurors that self-defense did not apply because Kekona admitted that he was not trying to kill anyone.  Kekona objected that the prosecutor's statement was a misstatement of the law.  The objection was overruled.  The prosecutor then argued that if this was a case of self-defense, then Kekona would not have needed to run away, hide himself and the gun, and have Antonio lie for him.  Kekona objected that there was no evidence supporting the argument that Antonio lied.  On rebuttal, the prosecutor pointed out that Kekona failed to confront Ah Loo that he purportedly abused Antonio.  Kekona was found guilty as charged.

Evidence of the Victim's Character was Admissible to show that he was the Initial Aggressor.  Relevant evidence is any evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."  HRE Rule 401.  Furthermore, evidence "of a pertinent trait of character of the victim of the crime offered by an accused" is admissible.  HRE Rule 404(a)(2).  According to the ICA, it was unclear whether Kekona knew about Ah Loo's abuse of Antonio when he shot at Ah Loo's van.  There was also conflicting evidence as to whether Ah Loo was the initial aggressor in the parking lot.  The ICA concluded that Ah Loo's prior abuse was circumstantial evidence of the likelihood that Ah Loo was the initial aggressor and was relevant evidence.

404(b) Notice is not a bar.  "In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial . . . of the date, location, and general nature of any such evidence it intends to introduce at trial." HRE Rule 404(b).   The purpose of HRE Rule 404(b) notice "is to reduce surprise and promote early resolution of admissibility questions."  State v. Pond, 117 Hawai'i 336, 350, 181 P.3d 415, 429 (App. 2007), vacated on other grounds by State v. Pond, 118 Hawai'i 452, 193 P.3d 368 (2008).  The sufficiency of "reasonable notice" is evaluated on a case-by-case basis.  Id. at 349-50, 181 P.3d at 428-29.  The ICA did not find HRE Rule 404(b) notice as a bar to the admission of the evidence.  The circuit court did not rely on the failure to comply with the notice requirement as a basis for granting the State's motion.  Furthermore, the State's motion in limine met the purpose of HRE Rule 404(b) notice by seeking to resolve the admissibility of the evidence at issue.  The ICA also noted that the State already had notice that Kekona intended to introduce the evidence by filing the motion.

Self-Defense Claims do not Require the Underlying Criminal Intent.  There was no question that Kekona's use of the gun was deadly force.  HRS § 703-300.  But Kekona raised self defense.  The State argued that because Kekona used deadly force, he must first have the intent to kill before he can rely on the self-defense claim.  According to the ICA, that argument was "a bit circular and confusing, and incorrect."  Self defense is not an affirmative one so the State must "disprove the facts that have been introduced or . . . prove facts" negating the defense beyond a reasonable doubt.  State v. Van Dyke, 101 Hawai'i 377, 386, 69 P.3d 88, 97 (2003).

The ICA held that there were three crucial issues for the jury to determine: (1) whether the victim used "unlawful force";  (2) whether the defendant believed that the use of deadly force was "immediately necessary for the purpose of protecting himself against the use of unlawful force"; and (3) whether the defendant reasonably believed that deadly force was necessary to protect himself or herself against death or serious bodily injury.  See HRS § 703-304.  According to the ICA, the fact that Kekona did not intend to kill had nothing to do with the applicability of the self-defense claim.

Applying the Self-Defense Statute.  According to the ICA, the application of the statute did not depend on the underlying offense.  As the ICA explained, the burden still remains on the State to show beyond a reasonable doubt that the defendant's use of force--in this case deadly force--was not justified.  HRS § 703-304 can apply to a number of different offenses.  The ICA stuck to the language of the statute and did not require an additional element of proof--that the actor must first have the requisite intent for the underlying offense.

But is it Reversible Error?  Yes.  When the prosecutor misstates the law at closing, the appellate court reviews the error under the harmless-beyond-a-reasonable-doubt standard.  State v. Espiritu, 117 Hawai'i 127, 140, 176 P.3d 885, 898 (2008).  Under that standard, the issue is "whether there is a reasonable possibility that the error complained of might have contributed to the conviction."  Id. at 141, 176 P.3d at 899.  According to the ICA, the prosecutor clearly misstated the law of self defense by requiring that the defendant must have the intent to kill in order for self defense to apply.  The misstatement was not corrected by the circuit court.  The ICA held that the misstatement of the law was not harmless error.