ICA upholds circuit court's refusal to let defendant present sovereignty defense

The ICA last August affirmed by summary disposition the conviction of a defendant for Unauthorized Entry in a Dwelling and five counts of Violation of an Order for Protection. (State v. Kaluau) Among the issues the defendant raised on appeal was that the circuit court had "preclud[ed] him from presenting his 'Hawaiian Kingdom' evidence".

According to the ICA

The circuit court did not err in precluding Kaluau from introducing "Hawaiian Kingdom" evidence. The sovereignty of the State and its lawful jurisdiction over the inhabitants of the State is a matter of law that is well-established. State v. Fergerstrom, 106 Hawai'i 43, 55, 101 P.3d 652, 664 (App. 2004); see also State v. Lorenzo, 77 Hawai'i 219, 883 P.2d 641 (App. 1994).

Recall that in May the ICA had required a court-appointed attorney to submit supplemental briefing of a sovereignty defense after the attorney had stated in the opening brief

that he is providing ineffective assistance of counsel on appeal as he "is incapable of properly asserting the 'Hawaiian Sovereignty' Defenses of the Defendant, since he does not agree with the Defendant's political position[.]"

The court noted that counsel did not maintain that Defendant's sovereignty claim was frivolous or "so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client" (citing the Hawai'i Rules of Professional Conduct).

No reconsideration or clarification of the Hawaii Supreme Court's order invalidating the 2011 Final Reapportionment Plan for the state legislature

Because...

the lack of complete information about the non-permanent status and location of Hawaii's non-residents is no basis for disregarding the express mandate of the Hawai'i Constitution, article IV, section 4, that only permanent residents be counted in the population base for the purpose of reapportionment of the
state legislature.

For the defense bar - some new SCOTUS Search and Seizure law

The Government’s attachment of [a] GPS device to [a] vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

United States v. Jones (PDF)

Interestingly, the court did not rely at all on the "reasonable expectation of privacy" formulation adopted by the court in 1967 in Katz v. United States. Instead, the court held that the kind of intrusion here - the attachment of a tracking device to a vehicle - constitutes the sort of common law trespass against a person's "effects" that would have been considered a search within the meaning of the Fourth Amendment at the time it was adopted.

(Under the Fourth Amendment, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]"

Kauai Publishing's bankruptcy

On December 12 Lee Enterprises, Inc., and Kauai Publishing Co., publisher of the Garden Island, filed petitions for Chapter 11 reorganization in the U.S. Bankruptcy Court for the District of Delaware (here and here).

A Chapter 11 Plan of Reorganization - "Amended Joint Prepackaged Plan of Reorganization for Lee Enterprises, Incorporated and Its Debtor Subsidiaries"- and exhibits was filed by Lee Enterprises, Incorporated.

And on Friday the IRS filed an objection to the plan.

Civil unions and the clash of equal protection and freedom of religion

Here's a story out of New Jersey that brings to mind the recently dismissed motion for a restraining order sought by a pair of Hawaii churches to prevent the state from enforcing the new civil union law.

A New Jersey judge ruled Thursday that a church group violated the state's discrimination laws when it prevented a lesbian couple from holding a civil union ceremony on its property in 2007.

The dispute began when the Ocean Grove Camp Meeting Association stopped the couple from using its boardwalk pavilion, an area it rented out for weddings.

Administrative Law Judge Solomon Metzger wrote in Thursday's ruling that the pavilion was a public space that advertised itself as a wedding venue without any mention of religious preconditions.
...

The church had argued that its freedom of religious expression would be violated if it was forced to allow same-sex ceremonies to be performed on its property.

The Hawaii act contains language shielding from liability "any person authorized to perform solemnizations of marriages or civil unions...who fails or refuses for any reason to join persons in a civil union." The Hawaii plaintiffs are concerned that this language doesn't protect churches who refuse to allow their facilities to be used for same sex ceremonies.

I imagine we could see some interesting Article 1, Section 5 equal protection cases brought against the immunity language of the civil unions law, and some interesting Article 1, Section 4 arguments brought to bear by churches opposed to same-sex unions.

ICA: a good faith settlement under HRS § 663-15.5 does not preclude a defendant from introducing evidence that it was not the cause of the accident even though doing so will point the finger at the defendant who settled

Under Hawaii law, when a plaintiff and a tortfeasor settle a claim in good faith, the settling tortfeasor is discharged from all liability for any contribution to non-settling tortfeasors. HRS § 663-15.5.

Does that mean a non-settled tortfeasor cannot introduce evidence at trial that would point to the settled defendant as the cause of the accident?

No, says the ICA. A good faith settlement made pursuant to HRS § 663-15.5 does not preclude a defendant from introducing evidence that it was not the cause of the accident even though this evidence will logically point the finger at a defendant who settled in good faith.

In Adams v. Yokooji, filed Friday, a woman got out of a cab at night, began crossing the street to catch a bus, and was struck and killed by a car. Her estate sued the driver of the car that hit her, the cab driver who dropped her off, and the DOT (for negligent design and insufficient street lighting).

The estate settled with the cab driver and the driver of the car that struck the woman. The DOT said it would introduce evidence that the lighting was sufficient and that the driver who hit her should have seen the woman. The ICA heard the case on an interlocutory appeal.

Robert Thomas on Agriculture And Property Rights

Agriculture And Property Rights: Why Hawaii Matters

Robert Thomas will be at the American Farm Bureau Federation annual meeting in Honolulu Monday talking water rights, GMO, right-to-farm, eminent domain, and other issues to the lawyers who represent farmers and ranchers. He promises to record it and post it to his blog, inverse condemnation.com.

Should be worth a listen.

Coincidentally, my brother-in-law, Marty Matlock, a professor of ag engineering at the University of Arkansas, will also be speaking.

Kauai County Zoning Ordinance Updates

The Garden Island points out this morning that the county is soliciting comments on phase one of the CZO update.

The phase one draft is available here. Most interestingly, it incorporates the amendments made to the CZO since its adoption in 1972, including the Transient Vacation Rental Ordinances 864, 876, and 904, the Open District Ordinance 896, the Additional Dwelling Unit Ordinances 843 and 886, the Shoreline Setback Ordinances 863 and 887, the Enforcement Ordinance 883, the Farm Worker Housing Ordinance No.903, and the Transient Accommodation Unit Certificate Allocation Program Ordinance 912.

It also contains some stylistic changes, the most evident of which involved removing the 'generally permitted uses' and 'uses requiring special permit' subsections from the various zoning district sections, and putting the information into an ostensibly more user-friendly "Table of Uses."

According to the county's web page on the update, substantive changes recommended by the consulting company hired to produce the drafts won't appear until phase two: "The second phase will show the newly reformatted document with recommended substantive changes to the code in a Ramseyered format which will be forthcoming after the first phase has been completed."

(Ramseyered formatting is a drafting convention required for administrative rule-making under HRS § 91-4.1. It involves underscoring any language being proposed to be added, and bracketing any language being proposed to be deleted from the ordinance).

Cervelli and Bufford v. Aloha Bed & Breakfast

...is a suit that, according to the complaint, "involves the refusal by a for-profit, commercial business establishment to provide accommodations at a bed and breakfast to a lesbian couple because of their sexual orientation, in violation of Hawaii’s law prohibiting discrimination in public accommodations."

The complaint asks for "a declaratory judgment that Defendant’s denial of public accommodations to Plaintiffs based on their sexual orientation and its ongoing refusal to provide accommodations to lesbians and gay men on terms equal to those provided to heterosexuals violates Hawaii’s laws prohibiting discrimination in public accommodations pursuant to HRS § 489-1, et seq."

Churches' suit against Hawaii civil unions law = "premature adjudication"

...according to the U.S. District Court's Order Denying Temporary Restraining Order in Emmanuel Temple, et al. v. Abercrombie et al.

Courthouse News has a piece with links to a plaintiffs' brief and to the order.

Two Christian churches lack legal standing to prevent same-sex couples from benefitting under Hawaii's new civil union law, a federal judge ruled.

...

Emmanuel Temple, the House of Praise; its pastor, Carl E. Harris; Lighthouse Outreach Center Assembly of God; and its pastor, Joel Hunkin, had claimed that they needed a restraining order and injunction "to maintain their 1st, 5th and 14th Amendment rights, without being subjected to injunctions, fines and other penalties for refusing to rent their church grounds for same-sex ceremonies and receptions."

[The Order states that] a "general intent to violate a statute at some unknown date in the future does not rise to the level of an articulated, concrete plan."

"A couple would have to ask, they would have to be denied, and they would then have to file suit"[.]

Here's a link to Act 1, recognizing civil unions in Hawaii.

New laws for the New Year

via Thelma at Hawaii House Blog

The new Palsgraf v. Long Island Railroad

Apologies to those who never sat through first year torts...

Chicago Trib -

Ruling in what it called a "tragically bizarre" case, an appeals court found that the estate of a man killed by a train while crossing the Edgebrook Metra station tracks can be held liable after a part of his body sent airborne by the collision struck and injured a bystander.

Ain't it the truth

NY Times - What They Don’t Teach Law Students: Lawyering

Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.

Here is what students will rarely encounter in Contracts: actual contracts, the sort that lawyers need to draft and file. Likewise, Criminal Procedure class is normally filled with case studies about common law crimes — like murder and theft — but hardly mentions plea bargaining, even though a vast majority of criminal cases are resolved by that method.

For the bloggers

PC World -

If you've ever copied an excerpt from an online publication and pasted it in a public place on the Internet, you're a bit safer today from being sued for copyright infringement thanks to the Democratic Underground

.


- Posted using BlogPress from my iPad

When "shall" can mean "may"

This morning, the Garden Island headline, "Rapozo asks court to define ‘shall’" caught my eye.

The County Charter states the Salary Commission “shall” do one thing, but the county attorney said “shall” could mean “may,” providing ammunition in a battle among Kaua‘i County Council members stuck between upholding the charter and freezing county officials’ salaries another year.

...

Rapozo filed a complaint with the Fifth Circuit Court, seeking a declaratory judgment on the five-letter word. Is “shall” mandatory or directory?

“If you start saying ‘shall’ is not mandatory it really weakens the charter,” said Rapozo, adding that to him the charter is just as important as the state and federal constitutions.

This is something the Hawaii appellate courts have addressed before. Under the case law, "shall" can mean "may" when

(1) it obviously doesn't mean "must" in the context of the statute's purpose;

(2) reading it as "must" would lead to unjust consequences; or

(3) reading it as "may" doesn't harm any public or private advantage, right, or benefit.

In State v. Shannon, 185 P.3d 200 (Haw. 2008), the Hawaii Supreme Court said,

[I]t is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. See Gray v. Admin. Dir. of the Court, 84 Hawai`i 138, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997) (observing that “[t]he word `shall’ is generally construed as mandatory in legal acceptation”); Voellmy v. Broderick, 91 Hawai`i 125, 129-30, 980 P.2d 999, 1003-04 (App.1999) (declaring that “[t]he word `shall’ `must be given a compulsory meaning . . . and is inconsistent with a concept of discretion’” (quoting Black’s Law Dictionary 1375 (6th ed.1990) (other citation omitted))); but see Narmore v. Kawafuchi, 112 Hawai`i 69, 83, 143 P.3d 1271, 1285 (2006) (noting that “[w]hile the word `shall’ is generally regarded as mandatory, in certain situations it may properly be given a directory meaning” (quoting Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 616-17, 585 P.2d 1265, 1269 (1978) (citation omitted)))…

Additionally, this court has interpreted the word “shall” as “directory” rather than mandatory only where a three part test has been satisfied.

In Perry [v. Planning Comm'n of Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980)], this court articulated a three-prong test for determining when the word “shall” may be interpreted as directory. First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.” Id. at 677, 619 P.2d at 103.

Leslie v. Bd. of Appeals of County of Hawai`i, 109 Hawai`i 384, 394, 126 P.3d 1071, 1081 (2006) (emphases added).

Electronic filing coming to the lower courts in Hawaii?

I sure hope so. Via Hawaii State Judiciary on facebook -

Comments wanted on proposed changes to Rules of Penal Procedure to allow for electronic filing

Copyfraud and Beachfraud

An interesting intro to a new book, Copyfraud and Other Abuses of Intellectual Property Law, illustrates the author's thesis by way of an analogy to beachfront property owners claiming more than they lawfully possess -

California has 3,427 miles of shoreline. Under the state's constitution, the shoreline is available, up to the mean high-tide line, for the public to use. Owners of beach-front homes, however, would prefer to keep the whole beach abutting their properties to themselves. In Malibu, homeowners place phony "No Trespassing" signs on the public beach, and they deploy security guards on all-terrain vehicles to chase away beachgoers. In Malibu's Broad Beach neighborhood, residents have bulldozed wet sand from the shoreline up to the high-tide mark to create a giant access barrier. At Carbon Beach, gated homes spanning multiple lots from a wall that blocks access to the shoreline from the Pacific Coast Highway. Whenever public interest groups have sought to open up pathways to the beach so that the state's constitution may be honored, homeowners have vigorously fought back. In 2005, DreamWorks co-founder David Geffen's decision to give up the keys to locked wooden gates next to his Malibu home, allowing the public to enter a stretch of beach, was headline news because it followed years of litigation and daily fines imposed upon Geffen for unlawfully blocking beach access. Battles over beaches occur in other states as well. In most states, the wet sand area of a beach is held by law in public trust, meaning it exists for the use and benefit of the population as a whole, even when the adjacent property is privately owned. Yet property owners routinely attempt to make their rights go farther than they actually do by interfering with people's ability to access beaches. On the New Jersey shore, homeowners have obstructed public entry points near their properties by erecting fences, and private beach clubs have set up entrance gates that admit only paying members onto public lands. On the island of Oahu, in Hawaii, gated subdivisions have turned public beaches into private sands. And in certain New York municipalities, local voters have passed ordinances limiting the use of the beach to town residents, notwithstanding the fact that they have no legal right to do so. Increasingly, the beach - the public's playground - is subject to private claims.

Like the owners of beachfront property, owners of intellectual property regularly claim more than the law gives them.

Fed Dist Court judge allows live-blogging from trial

Malia Zimmerman in Hawaii Reporter -

U.S. District Judge Susan Oki Mollway has authorized Hawaii Reporter, the Star-Advertiser and Honolulu Civil Beat to cover the trial involving human trafficking allegations against Global Horizons via live blogging this February.

Personally, I think its odd that anyone would not be allowed to blog a public proceeding from the courtroom - or that anyone should have to ask.

MarketWatch video report on Kukui'ula

"Hawaiian Paradise Becomes a Ghost Town"

I like it when the reporter pronounces it "Kukuilua"

iPad apps for lawyers

Here.