Mortgage ind. trade journal: HUD threatens FHA revocation against Hawaii-based reverse lender

"The Board was particularly concerned about one case in which the Company steered an 88-year-old borrower into purchasing an annuity which would not mature until she reached her 104th birthday."

Ceded Lands case last man standing dismissed

Today the Hawaii Supreme Court filed what should be the final order in the ceded lands case, OHA v. Housing and Community Development Corp of Hawaii. Recall that the state supreme court had held that the federal Apology Resolution gave rise to a fiduciary duty on the part of the state to preserve the ceded lands until "such time as the relinquished claims of native Hawaiians have been resolved." The case then went before the U.S. Supreme Court which held that, on the contrary, the Apology Resolution did not create a cloud over the state's title to the ceded lands.

The parties (that is to say, all but one of the plaintiffs) subsequently reached a settlement in the form of Act 176 requiring a 2/3 majority vote of the legislature and notice to OHA before any state agency may alienate ceded lands.

The state filed a motion to dismiss the lone remaining plaintiff, Professor Jonathan Osorio's appeal. Today the Hawaii Supreme Court held that Professor Osorio's claims are not ripe for adjudication because there has been no final action under Act 176 with regard to any ceded lands. The court remanded the case to the circuit court for entry of a judgment dismissing Professor Osorio's claims against the state without prejudice.

This would appear to leave the door open for Professor Osorio to bring a claim once there is state action under Act 176 to sell or otherwise transfer ceded lands.

Furlough Fridays law suits

An article in yesterday's Star Bulletin describes "two federal lawsuits that seek to block Furlough Fridays in Hawaii's public schools, one representing nine students with autism and the other on behalf of regular and special education students."

Today's Advertiser covers the denial by the court of an 11th hour motion for a temporary restraining order by the plaintiffs to force the state to keep schools open.

On Nov. 5 there will be a hearing on a request for a preliminary injunction.

It's not all work all the time...

With my son and friends at a school dive club event last week

Jones Act challenge updates from around the web

Here's Mark Murakami's (HawaiiOceanLaw.com) description along with a link to the complaint.

The suit notes that because the Jones Act requires cargo to be transported on U.S. flagged ships between U.S. ports, Hawaii residents pay more for their goods. It purports to be class action on behalf of all persons impacted by the Jones Act's application to Hawaii maritime trade.

Mark also points out that "There may be some jurisdictional problems with these claims, so it will be interesting to see if the plaintiffs can survive the government's inevitable motion to dismiss."

Here's Malia Zimmerman's Hawaii Reporter piece yesterday with more from the plaintiffs' perspective.

Honolulu personal injury attorney Wayne Parsons opposes the suit on the InjuryBoard.com blog.

Looming appeal - lower court rules first degree murder not appropriate under law where Family Court defendant murders witness

According to this Advertiser piece, fifteen year old Vernon Bartley had burglary charges pending against him in family court when he allegedly murdered his 51 year old neighbor who would have been a witness against him in the burglary case.

Under Hawaii law, A person commits the offense of murder in the first degree if the person intentionally or knowingly causes the death of a person known by the defendant to be a witness in a criminal prosecution and the killing is related to the person's status as a witness. HRS §707-701(c). So, the state charged Bartley with first degree homicide which, as the article points out, "carries the strongest punishment under Hawai'i criminal law: life in prison without the possibility of parole."

However, under HRS §571-1, family court proceedings are not deemed criminal prosecutions. Therefore, Bartley's attorney argued, the first degree homicide charge is unsupported and must be dismissed. The judge agreed on the grounds that the juvenile proceeding was not a criminal prosecution.

Arguing that this flies in the face of the legislature's intent in drafting the first degree murder statute the state says it "is considering appealing the decision to the Hawaii Supreme Court, as well as seeking a clarification of the law by the Legislature next year."

That'll be one to watch.

Police arrest 10 year old girl for assaulting her brother

This seems like something we could be hearing more about. According to a minimalist Advertiser report, in its entirety -

A 10-year-old girl was arrested yesterday morning after her 8-year-old brother reported being assaulted.

The children live together in Kalihi and got into an argument, police said. The girl then picked up a weapon and hit the boy, causing him pain, police said.

Police were called at about 7 a.m. and arrested the girl on suspicion of second-degree assault. Police did not disclose the nature of the boy's injuries or what weapon was allegedly used by the girl.

"They want to create a whole new animal - the guilty bystander."

In a comment to the previous post, Big Island attorney blogger John Powell reminded me of the Seinfeld finale in which Elaine, George, Jerry, and Kramer are charged with violating a Good Samaritan statute after standing by and ridiculing the victim during a mugging. Their Cochran-esque attorney, Jackie Chiles, says -

Good Samaritan Law? I never heard of it. You don't have to help anybody. That's what this country's all about. That's deplorable, unfathomable, improbable.

And later, at opening arguments -

Have you ever heard of a guilty bystander? No, because you cannot be a bystander and be guilty. Bystanders are by definition, innocent. That is the nature of bystanding. But no, they want to change nature here. They want to create a whole new animal - the guilty bystander. Don't you let them do it. Only you can stop them.

No duty of crime witness to call the police

This case ought to take any lawyer back to first year law school torts class where we learned the common law “no duty to rescue rule” under which, so long as you were not responsible for placing someone in danger or risk, you have no obligation to help them even if you could save their life with little cost or inconvenience to yourself.

According to the Star Bulletin,

The issue surfaced this week with the revelation in court documents that three hotel workers saw a man on top of someone who was kicking on Waikiki Beach about 3 a.m. Oct. 2. There is no mention in the court documents that the employees called police. About three hours later, police were called when the nude body of a woman was found in the ocean nearby.
...
According to the court documents, a cook at the Royal Hawaiian Hotel told officers investigating the death he watched for 10 minutes as a man choked or shoved a woman 30 times, while the woman was kicking.

Shortly afterward, he saw a couple in the ocean, but was unsure if it was the same couple.

Two fellow workers joined the cook, who told them he saw a man choking or shoving a woman, and the two told police they saw a man on top of someone who was kicking. One of those two employees was unsure if the person underneath was a man or a woman, according to the court documents.

The case used to illustrate the doctrine in my torts casebook was Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959) in which Bigan dared Yania to jump into the hole full of water and then stood by watching as Yania drowned.

The article points out -

Ohio is possibly the only state where a person who witnesses a felony being committed or has knowledge of a crime is required to report it to law enforcement.

But in Hawaii, as in most states, people are generally not required by law to report a crime, with some exceptions such as social workers, teachers and medical professionals, who must report suspected child abuse.

Right of citizens to sue to challenge council member's eligability goes to state Supreme Court

According to the Advertiser and the Maui News, the Hawaii Supreme Court will hear an appeal by plaintiff-appellant Lanai residents asking that Council Member Sol Kaho'ohalahala be blocked from serving on the Maui County Council on grounds that he is not a resident of the council's Lanai residency district as required under Mauai Charter Sect. 3-3.

In March, Judge Joseph Cardoza of the Second Circuit dismissed the suit, agreeing with Kaho'ohalahala that citizens seeking removal of an elected county official are limited to impeachment or recall.

I saw the court's order come across the rss feed the other day, but it presently seems to be absent from the judiciary web site for some reason.

National Book Award Finalists

...are here.

Another factual twist to challenge Hawaii's native burial laws

In this case involving native burials, the plaintiffs allege...

...that trenching work [for Kawaiaha'o Church's new $17.5 million multipurpose center] disturbed the graves of [Plaintiff Abigail Kawananakoa's] ancestors — Queen Kapiolani and her family. The suit names the church and various state agencies as defendants. It alleges a violation of public trust, along with manipulation of state law, desecration of graves and gross negligence, among other charges.

In a motion decided today church attorney, Crystal Rose, argued that the disturbed site is a widely known cemetery and, according to the article linked above, "historic burial laws therefore do not apply." The article goes on to report that "George Van Buren, Kawananakoa's attorney, filed a response last week, saying Kawaiaha'o Church's history as an ancient native Hawaiian burial site subjects it to the [historic burial] laws."

Today the First Circuit Court denied the motion without prejudice.

I haven't read any of the filings, but it appears to me the sides argued over whether the applicable statute is HRS §6E-43 governing prehistoric and historic burial sites, or the less restrictive §6E-41 concerning cemeteries, their removal or redesignation.

inversecondemnation.com live blogs HAWSCT oral arguments this morning: Are State Zoning Laws "Environmental" Statutes?

Robert Thomas again brings the court to the people (he previously live blogged the HAWSC Superferry oral arguments with great success).

Today's blog of the Hawaii Supreme Court oral arguments in County of Hawaii v. Ala Loop Homeowners, No. 27707 (cert. granted Sep. 2, 2009) will go live at approximately 9:45 a.m., Hawaii Standard Time.

Go here for the streaming updates.

The court is considering whether Haw. Rev. Stat. § 205-1 et seq., gives rise to a private right of action. The core issue in the appeal is whether Hawaii's statewide zoning laws are "laws relating to environmental quality" which may be privately enforced, or whether they are classic Euclidean zoning laws which can't. The Hawaii Constitution (art. XI, § 9) provides that "any person may enforce" the "right to a clean and healthful environment, as defined by law relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources."

Advertiser - Hawaii considers 6-member juries

The Advertiser reports that "Hawai'i lawmakers may consider legislation next year" to amend Article I, Section 13 of the state Constitution, relating to jury trials, in order to reduce the size of juries in civil trials and "minor criminal trials" from 12 to six members. According to the paper, at the request of the state supreme court, a "committee of judges, lawyers and community members will study the issue and report its findings to the Hawai'i Supreme Court, Legislature and governor in time for the 2010 Legislature."

The study committee will look at potential cost savings as well as "issues of constitutionality, of the perceived rights and benefits of a traditional 12-person jury, and of functional equivalence," according to an American Judicature Society statement.
...
A 1970 U.S. Supreme Court case held that six-person juries are "functionally equivalent" to 12-person juries and therefore constitutional. However, according to an April 2008 article in the Florida Law Review, only two states — Florida and Connecticut — rely on six-person juries in serious felony prosecutions.

The increasing use by police of the "stop and frisk"

This AP article on the increasing use by police of a practice called the "stop and frisk" caught my eye recently (while I'm not a criminal defense trial attorney, I do write motions to suppress illegally obtained evidence for a handful of lawyers who are criminal defense trial attorneys). The article opens with this scenario -

Ronnie Carr's experience was typical: He was fumbling with his apartment door after school in Brooklyn when plainclothes officers flashed their badges.

"What are you doing here?" one asked, as they rifled through his backpack and then his pockets. The black teenager stood there, quiet and nervous, and waited.

Carr said the officers told him they stopped him because he looked suspicious peeking in the windows. He explained that he had lost his keys. Twenty minutes later, the officers left. Carr was not arrested or cited with any offense.

The article goes on to state -

The practice is perfectly legal. A 1968 Supreme Court decision established the benchmark of "reasonable suspicion" - a standard that is lower than the "probable cause" needed to justify an arrest.

The 1968 Supreme Court decision would have to be Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) which did establish "reasonable suspicion" as the standard for investigatory stops (as opposed to the higher standard of "probable cause" for arrests). However, the scenario of the police search of Ronnie Carr, while it might be typical, is certainly not "perfectly legal."

The actual holding of Terry v. Ohio was this -

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Notice that police rummaged through Mr. Carr's backpack and picked through his pockets. That's a no-no in a stop-and-frisk. The police are free to chat with anyone they please. If police reasonably suspect based on specific and articulable facts and inferences that a person is, has been, or is about to be engaged in criminal activity the police may temporarily "seize" the person for an investigatory stop (also called a "Terry stop").

And if the police have reasonable safety concerns, an officer can pat down the outside of a person's clothes, but only for weapons - and nothing else. So, in other words, if an officer pats down a person's clothes in one of these stop-and-frisks, and if the officer feels something in a pocket that feels for all the world exactly like drugs or drug paraphernalia, but feels nothing at all like a weapon of any kind, then the officer is prohibited from further investigating whatever it is he thinks he might have found - at least unless and until he finds some legal reason to search further. If officers are using the stop-and-frisk to turn up evidence of crimes, then they're breaking the law (and any competent criminal defense attorney ought to be able to have the evidence suppressed at trial).

second attempt [2 scam u]..pls reply

Hey, look. I just got an internet scam email!

Attention: Counsel,

We the management of Weifang Wecan Imp. & Exp.Co.,Ltd., require your legal representation for our north american Customers. We have two companies owing us, one in canada and the other in USA.

Please confirm if you could help us in the debt collections. You can reach me via my direct email at: leechang_wecannie@yahoo.cn / call telephone number: +852 817 21003. Let me know when best to reach you by phone also.

Thanks,

Lee Chang, Director
Weifang Wecan Imp. & Exp.Co.,Ltd
No.338 Dongfeng
Street,Weifang
Shandong 261041.China
Tel: +852-817-21003
Fax: +852-301-48169
Email: leechang_wecannie@yahoo.cn

If you are an attorney, you know this is a scam, right? Here's an explanation from a Law.com article published last year.

An overseas company contacts a U.S. lawyer by e-mail and retains that attorney as a settlement agent to collect a debt from a U.S. company. The U.S. company sends a settlement check to the lawyer, who deposits it into his trust account and then wires the settlement amount, minus his fee, to the "client." But the settlement check is counterfeit, and the lawyer loses the money he wired abroad.

The legal difference between making mix tapes in the old-school analog day and in the new (more restrictive) digital age

If you're old like me you might have, back in the day, mixed tapes of various songs from LPs in your collection and passed them around with your friends. And then later, if you're like me, when everything was finally digital, you might have mixed songs from your computer hard-drive and saved the mix to a CD and after listening to it in your car for a few weeks, passed it along to one or another of your friends.

Interestingly, there is apparently a legal difference in the two acts. From the Citizen Media Law Project Blog -

The Copyright Act gives the author of a sound recording (say, a recording artist) exclusive rights to make reproductions, prepare derivative works, distribute copies to the public, and to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. § 114. Making a mix tape may implicate several of these exclusive rights. Putting the mix tape on your website for download would be distribution of the work to the public. A visitor to your blog downloading the file would be another instance of copyright infringement.

But wait, what about all of those mix tapes we exchanged with friends and family back in the day? Was all of that copyright infringement? No: many of those analog mix tapes were covered by the safe harbor established in the Audio Home Recording Act of 1992 ("AHRA"), which barred infringement actions for private, noncommercial musical recordings. When it comes to digital mix tapes however, your computer isn't an audio recording device covered by AHRA. See RIAA v. Diamond, 180 F.3d 1072, 1078 (9th Cir. 1999).

John Carroll challenges Jones Act

Washington Examiner -

(Honolulu) Republican gubernatorial candidate John Carroll is suing the federal government in an effort to overturn an 89-year-old law that restricts interstate shipping to U.S.-built and U.S.-flagged ships.

The law also restricts interstate shipping to vessels owned by U.S. companies and crewed mainly by U.S. citizens.
...

The lawsuit contends the Jones Act violates the Constitution's Commerce Clause by artificially inflating prices of goods shipped between Hawaii and the mainland to such an extent that it becomes an unlawful restraint on trade and interstate commerce.

Ninth Circuit to sit in Honolulu and University of Hawaii next week

The United States Court of Appeals for the Ninth Circuit will visit Honolulu, Hawaii, next week for a semi-annual sitting. A three-judge panel consisting of Senior Circuit Judge Robert R. Beezer of Seattle, and Circuit Judges Susan P. Graber of Portland and Raymond C. Fisher of Pasadena will hear appeals of decisions by the U.S. District Court for the Districts of Hawaii and Guam. Oral arguments will be held October 13 and 15 at the Ninth Circuit Court of Appeals, 1132 Bishop Street, sixth floor, beginning at 9 a.m. The law school sitting will be held October 14, beginning at 9:30 a.m. in the Moot Courtroom, 2515 Dole Street.

The calendar for those dates is here. And here is the press release.

Among the cases on the docket originating from Kauai are -

Lum v. Kauai County Council, in which King Chi Lum appeals the Hawaii district court’s judgment in his action alleging that he was unlawfully terminated from his employment as the police chief of the Kauai County Police Department. Lum alleged that the Kauai County council, Mayor Bryan Baptiste, and others discriminated against him because of his race, national origin, prior discrimination complaint, and prior whistleblowing activities. In addition, Lum alleged that the defendants denied him due process of the law, violated State of Hawaii public policy and breached his employment contract. He alleged that the defendants’ actions constituted a civil conspiracy to deprive him of his civil rights.
Case 08-16093

Horita v. Kauai Island Utility Cooperative, in which Shannon Horita appeals the Hawaii district court’s summary judgment in favor of her former employer, Kauai Island and Utility Cooperative, in her diversity action alleging that she was demoted and terminated based on race, national origin, and sex discrimination. The district court found that her claims were untimely for failure to exhaust within the 300 day period to file an EEO complaint.
Case 08-17166

The court will also hear Doe v. Kamehameha School, 09-15448.

It's the government. They say they're here to help

Bizarre. The Federal Trade Commission has promulgated rules to regulate product endorsements on blogs. According to Wired -

Gadget bloggers and Amazon.com reviewers now must disclose freebies and financial interests or face fines up to $11,000, according to rules announced by federal regulators Monday in an attempt to make word-of-mouth endorsements on the net easier to believe.

The Federal Trade Commission introduced the rules to prevent the net from being flooded with paid-for reviews which appear to be the work of everyday netizens, but are actually paid for with free products. But the new rules (.pdf) are confusing, ambiguous and likely unenforceable in the real world, given the size of the net, the sheer number of blogs and reviewers, and the difficulty of making distinctions between media professionals and amateurs, and between sponsored posts and pure reviews.

Under the new rules, a hiking enthusiast with a personal blog who got a free backpack would have to tell her readers about the gift and also disclose it in any online review. By contrast, established review sites such as Consumer Reports or Wired.com’s Gadget Lab do not need to disclose whether or not they get freebies or what they do with them.

I pronounce it a stupid idea. I'm constantly doing internet searches for reviews of whatever - products, books, movies - and there's nothing more obvious on the internet than self-serving bullshit trying to dress itself up as objective advice. And who doesn't already discount what they read online anyway and look for a variety of opinions rather than rely on a lone review? Maybe the gov should instead take out banner ads that say, "Don't believe everything you read online." This is offensive nanny-ism and a waste of your tax dollars. You should probably write your congressperson or something.

ICA to decide who owns accreted beachfront land

Inversecondemnenation.com posts about a fascination issue coming before the Hawaii appellate court next month. Landowners have challenged a state law (1993's Act 73) that essentially decreed that any shoreline land created by accretion belongs to the state. Landowners successfully challenged the law in the First Circuit Court on behalf of all owners of oceanfront property in the state, arguing that the law constitutes an unconsitutional taking of property without just compensation.

The state has appealed and argues, among other things, that there exists no vested right in either accreted land not yet recorded by a property owner, or in future accretion which has not yet even occurred.

The property owners counter with U.S. Supreme Court precedent supporting the proposition that oceanside property owners have a vested right to land accreted to their property as well as to any accretion that might form in the future.

The state appears to cast the issue as a threat to beach access. However, the property owners call that a red herring and counter that their challenge to the Act leaves intact the current regime under which the beach to the upper wash of the waves remains public land.They argue rather that it is the new land created through accretion mauka to the high wash of the waves that belongs to the adjacent land owner.

Traditionally, water-fronting property owners bear the risk of erosion of their property but enjoy the benefit of any increase through accretion.

Gay divorce, maybe?

Recall Hawaii's gay marriage case, Baehr v. Lewin, 74 Haw. 645, 852 P.2d 44 (1993), which held that the state statute denying marriage rights to same-sex couples was potentially in violation of the equal rights provision in Article I, Section 5 of the Hawaii Constitution, and remanded for trial to determine if the state could demonstrate a compelling interest to justify the statute. In 1998 Hawaii's Constitution was amended with the approval of a large majority of voters to give the legislature the power to reserve marriage to opposite-sex couples, and in December 1999 the plaintiffs in Baehr were accordingly denied relief.

I bring it up because I was reminded of it by this story in which a Texas state district court judge ruled yesterday that two men married in another state can divorce in Texas and that the state's constitutional prohibition against gay marriage violates the U.S. Constitution. Really, I was struck by the differences. First, that the Texas case actually gets to the gay marriage issue through the back door - as it were - by way of determining a right to divorce. Also, Texas already having a state constitutional provision on point (unlike Hawaii at the time that Baehr was brought), the court was left to base its ruling on federal constitutional grounds. The state vows to appeal (apparently the state had either intervened or had moved to intervene and was denied. Either way, it argued that the court can't dissolve a marriage not recognized by the state. The court took the position that it had jurisdiction to hear a divorce filed by persons legally married in another jurisdiction).

Settlement in Hapa Trail wall damage and statutory 'states of mind'

A Garden Island reported this morning about a settlement between a developer and the county for damage to a historic wall. According to the article, an equipment operator conducting grubbing and grading broke through the wall, which is part of the historic Hapa Trail.

Also according to the article, "[t]he operator committed the misdemeanor offense of taking, appropriating, excavating, injuring, destroying or altering any historic property upon land owned or controlled by the state or any of its political subdivisions."

That would appear to refer to HRS §6E-71 which makes it a misdemeanor to knowingly do any of those listed acts, ("except as permitted by the department"). The article doesn't reveal whether anyone claimed that the damage was not done "knowingly" or whether the wall was damaged "innocently" - either accidentally, or without knowledge that it was a historic property, or that it was on land owned or controlled by the state. The developer's attorney stated that the damage was repaired the same day it happened, but that doesn't really clear up the question of the 'state of mind' of whoever caused the damage.

I suppose some would argue that a contractor "ought to know" those facts. But that's negligence. And a negligent state of mind is insufficient to establish penal liability for this offense.

But this is all idle chatter because the case settled apparently to the satisfaction of both sides. (The defendant contractor's attorney claims the contractor was going to donate rock to the preservation effort anyway).