Under today's State v. Bryan (PDF), prior OVLPSR-OVUII convictions (Operating a Vehicle after License and Privilege have been Suspend or Revoked for Operating a Vehicle under the Influence of an Intoxicant) are an essential offense element that must be alleged in the charging instrument in order to impose the enhanced penalties for repeat offenders under HRS 291E-62.
Also, a la Wheeler, the "public road" requirement is an essential element of the OVLPSR-OVUII offense and must be charged against a defendant. (However, under the liberal construction rule, where the objection to the sufficiency of the charge was not raised below, a "public road" allegation made in a companion count - an open container charge in this case - is sufficient to sustain the OVLPSR-OVUII charge).
(Nakamura, Leonard, Reifurth, JJ., by Nakamura; Deputy Public Defender Ronette M. Kawakami, Honolulu Deputy Prosecuting Attorney Brian R. Vincent on the briefs).
Tuesday, November 30, 2010
Thursday, November 25, 2010
A divided opinion in State v. Pratt - balancing customary native Hawaiian practices against State regulatory interests
I posted earlier this month about oral arguments in State v. Pratt, involving a native Hawaiian convicted in the District Court of the Fifth Circuit for violating restrictions on camping in closed areas of Kalalau State Park. Pratt had argued that he met the factors that one claiming a constitutionally protected native Hawaiian rights privilege must show under State v. Hanapi, 89 Hawai`i 177, 970 P.2d 485 (1998).
The state did not dispute Pratt's Hanapi claims, but instead argued that in ruling against Pratt the trial court had correctly applied a fourth test balancing the state’s interest in regulating the number of people in the park against Pratt’s constitutional interest in exercising native Hawaiian rights.
Regular Planet Kauai reader and occasional commenter, Manawai, commented that
Then the appellate opinion came out and, as it turns out, opinion author Judge Leonard agreed with Manawai that Pratt had indeed failed to establish that camping, clearing land, and planting crops within the Kalalau Valley constituted a recognized customary and traditional practice.
But then the decision went further and upheld the Fifth Circuit's opinion based on the balancing test. This led Judge Fujise to separately concur with the outcome while making the point that because Pratt lost on the balancing test, there was no need for the court to revisit the Hanapi factors at all.
Judge Nakamura meanwhile disagreed that the state had established a particular harm (agreeing essentially with the analysis I urged in my original post) and therefore would have overturned the Fifth Circuit' conviction of Pratt.
This badly divided outcome led attorney-blogger Ben Lowenthal to wonder in his Hawaii Legal News blog what, precisely, is the precedent here?
The state did not dispute Pratt's Hanapi claims, but instead argued that in ruling against Pratt the trial court had correctly applied a fourth test balancing the state’s interest in regulating the number of people in the park against Pratt’s constitutional interest in exercising native Hawaiian rights.
Regular Planet Kauai reader and occasional commenter, Manawai, commented that
It seems to me the court erred, as far as I can tell, in accepting that "camping" is a cultural or traditional rightHad I had time, I would have replied that the state declined to challenge and therefore waived for purposes of the appeal Pratt's claims regarding the constitutionally protected status of his actions, and instead argued that the court correctly ruled against Pratt based on the balancing test urged by the state.
Then the appellate opinion came out and, as it turns out, opinion author Judge Leonard agreed with Manawai that Pratt had indeed failed to establish that camping, clearing land, and planting crops within the Kalalau Valley constituted a recognized customary and traditional practice.
But then the decision went further and upheld the Fifth Circuit's opinion based on the balancing test. This led Judge Fujise to separately concur with the outcome while making the point that because Pratt lost on the balancing test, there was no need for the court to revisit the Hanapi factors at all.
Judge Nakamura meanwhile disagreed that the state had established a particular harm (agreeing essentially with the analysis I urged in my original post) and therefore would have overturned the Fifth Circuit' conviction of Pratt.
This badly divided outcome led attorney-blogger Ben Lowenthal to wonder in his Hawaii Legal News blog what, precisely, is the precedent here?
Only one judge--Judge Leonard--characterized the State's concession that Pratt met his Hanapi burden as a stipulation on a legal point requiring further analysis. See Beclar Corp. v. Young, 7 Haw. App. 183, 750 P.2d 934 (1988); State v. Tangalin, 66 Haw. 100, 101, 657 P.2d 1025, 1026 (1983). Judge Leonard ultimately concluded that Pratt failed to establish that his conduct was constitutionally protected (and even if he did, the balancing test applied.). The other two declined to address that issue. Judge Leonard stands alone in her Hanapi analysis.
And to Further Complicate Things . . . Judge Leonard concluded first that Pratt failed to meet his Hanapi burden and, even if he did, the district court should have and correctly balanced in the interests in favor of the State. But it would seem that if Pratt had not met his burden, then there would be no need to engage in the balancing test. Shouldn't Judge Leonard's opinion have ended without moving on to the balancing test? Does that make her balancing test analysis advisory? What does that do to Judge Fujise's concurrence, where she agrees with Judge Leonard's balancing test analysis?
Friday, November 19, 2010
Director Ian Costa resigning from Planning
From the Kauai Planning Commission Tuesday, November 23 regular meeting agenda:
Joan Conrow broke this yesterday at her blog Kauaieclectic. Joan, who is bitterly hostile toward the idea of TVRs outside the visitor designation areas - and especially on lands designated agricultural - makes the interesting observation that Mayor Carvalho's recommended interim replacement, Deputy County Attorney Mike Dahilig, allegedly (correctly) advised Council member Dicky Chang prior to passage of Ordinance 904 that failure to grandfather pre-existing TVRs would lead to a raft of expensive lawsuits against the county. (It's true. Dozens of appeals of denials of non-conforming use cert applications were filed prior to passage of 904. Had 904 not passed and those appeals been denied, many would have been filed in the courts).
B. COMMUNICATION (For Action)This will be of concern to anyone with business before the Planning Commission - think all those transient vacation rental non-conforming use applications filed just prior to the October 15 deadline and waiting for hearing dates.
1. Letter (11/16/10) from Planning Director Ian K. Costa to Chairman Raco and Members of the Planning Commission offering his resignation as Director of Planning for the Commission’s acceptance.
2. Letter (11/17/10) from Mayor Bernard P. Carvalho, Jr., ex-officio Planning Commission member, to Chairman Raco and Members recommending that the Commission consider the appointment of Michael A. Dahilig as Director of Planning to serve in the interim.
Joan Conrow broke this yesterday at her blog Kauaieclectic. Joan, who is bitterly hostile toward the idea of TVRs outside the visitor designation areas - and especially on lands designated agricultural - makes the interesting observation that Mayor Carvalho's recommended interim replacement, Deputy County Attorney Mike Dahilig, allegedly (correctly) advised Council member Dicky Chang prior to passage of Ordinance 904 that failure to grandfather pre-existing TVRs would lead to a raft of expensive lawsuits against the county. (It's true. Dozens of appeals of denials of non-conforming use cert applications were filed prior to passage of 904. Had 904 not passed and those appeals been denied, many would have been filed in the courts).
Friday, November 05, 2010
Thursday, November 04, 2010
Fighting over the meaning of the native Hawaiian rights defense in the Kalalau Valley
Yesterday Kauai attorney Dan Hempey (for the defendant-appellant) and prosecuting attorney Tracy Murakami (for the state-appellee) argued before the Intermediate Court of Appeals the case of State v. Pratt, involving a native Hawaiian convicted in the District Court of the Fifth Circuit for violating restrictions on camping in closed areas of Kalalau State Park. Pratt had unsuccessfully argued in a motion to dismiss charges in the trial court that his actions had been constitutionally protected traditional native Hawaiian practices.
Pratt’s motion to dismiss asserted that he met the three factors that one claiming a constitutionally protected native Hawaiian rights privilege must show under State v. Hanapi, 89 Hawai`i 177, 970 P.2d 485 (1998) - (1) that he qualifies as a native Hawaiian within the PASH guidelines (descendants of native Hawaiians who inhabited the islands prior to 1778); (2) that his claimed right is constitutionally protected as a customary or traditional native Hawaiian practice, and; (3) that his exercise of the right occurred on undeveloped or less than fully developed property.
Interestingly, the trial court agreed, finding that Pratt had in fact made the required showings to satisfy each of the Hanapi factors. Nevertheless, the court denied the motion after applying a balancing test of the competing interests – the state’s interest in regulating the number of people in the park balanced against Pratt’s interest in exercising native Hawaiian rights.
On appeal, Pratt argues that there is no such fourth prong in the three-factor Hanapi test and that the court violated the doctrine of stare decisis when it imposed one. The state argues that while Hanapi does not explicitly impose a balancing of the interests requirement, other cases have stated that the right should be balanced against harm. (The state cites specifically to PASH (Public Access Shoreline Hawai`i v. Hawai`i County Planning Comm'n, 79 Hawai`i 425, 903 P.2d 1246 (1995)) and Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 656 P.2d 745 (1982).
It raises for me an interesting question (assuming a balancing test is appropriate) about whether the harm to be balanced is the actual harm caused by the individual applying for the right, or the theoretical harm of a whole lot of people exercising the right. If the court were to apply a theoretical “what-if-everybody-did-it?” analysis, then just about any native Hawaiian right could be extinguished on the grounds that, if all the Hawaiians did it, chaos would ensue.
The court’s decision and the state’s argument that its interest in regulating the park outweighs Pratt’s interest in exercising native Hawaiian rights there would seem to rely on the theoretical view. In this case, though, the appellant asserted a highly particularized and individual history of ongoing practice in the area. It seems unlikely that many native Hawaiians could establish the history of ongoing practice in the area that Pratt claims. If the court views the issue as the actual harm caused by the actual person actually practicing the right (which, truth be told, seems to be the spirit of the balancing test discussed in PASH and Kalipi and cited by the state) things could conceivably break in Pratt’s favor.
Pratt’s motion to dismiss asserted that he met the three factors that one claiming a constitutionally protected native Hawaiian rights privilege must show under State v. Hanapi, 89 Hawai`i 177, 970 P.2d 485 (1998) - (1) that he qualifies as a native Hawaiian within the PASH guidelines (descendants of native Hawaiians who inhabited the islands prior to 1778); (2) that his claimed right is constitutionally protected as a customary or traditional native Hawaiian practice, and; (3) that his exercise of the right occurred on undeveloped or less than fully developed property.
Interestingly, the trial court agreed, finding that Pratt had in fact made the required showings to satisfy each of the Hanapi factors. Nevertheless, the court denied the motion after applying a balancing test of the competing interests – the state’s interest in regulating the number of people in the park balanced against Pratt’s interest in exercising native Hawaiian rights.
On appeal, Pratt argues that there is no such fourth prong in the three-factor Hanapi test and that the court violated the doctrine of stare decisis when it imposed one. The state argues that while Hanapi does not explicitly impose a balancing of the interests requirement, other cases have stated that the right should be balanced against harm. (The state cites specifically to PASH (Public Access Shoreline Hawai`i v. Hawai`i County Planning Comm'n, 79 Hawai`i 425, 903 P.2d 1246 (1995)) and Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 656 P.2d 745 (1982).
It raises for me an interesting question (assuming a balancing test is appropriate) about whether the harm to be balanced is the actual harm caused by the individual applying for the right, or the theoretical harm of a whole lot of people exercising the right. If the court were to apply a theoretical “what-if-everybody-did-it?” analysis, then just about any native Hawaiian right could be extinguished on the grounds that, if all the Hawaiians did it, chaos would ensue.
The court’s decision and the state’s argument that its interest in regulating the park outweighs Pratt’s interest in exercising native Hawaiian rights there would seem to rely on the theoretical view. In this case, though, the appellant asserted a highly particularized and individual history of ongoing practice in the area. It seems unlikely that many native Hawaiians could establish the history of ongoing practice in the area that Pratt claims. If the court views the issue as the actual harm caused by the actual person actually practicing the right (which, truth be told, seems to be the spirit of the balancing test discussed in PASH and Kalipi and cited by the state) things could conceivably break in Pratt’s favor.
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