Record on Appeal is liveblogging Hawaii AG confirmation hearing

...here, Tuesday April 5, 2011 at 9:00 am.

Akaka Bill is reintroduced

Here's a Maui Now article, and here's a cached piece apparently by Sen. Akaka with relevant quotes from the Hawaii delegation and the gov.

Hawaii County "lowest law enforcement priority" marijuana law suit

Over on the Big Island, according to the Hawaii Tribune-Herald

Eight Puna residents have filed a lawsuit alleging that police, prosecutors and other county officials have failed to abide by the voter initiative making adult personal use of marijuana the "lowest law enforcement priority."

According to the article, the plaintiffs seek $5 million in punitive damages, and for orders that police and prosecutors "immediately desist investigations, arrests, or prosecutions of any person, or the search and seizure of any property in a manner inconsistent with the Lowest Law Enforcement Priority as defined in ... Hawaii County Code"; that the council issue semi-annual reports on marijuana related county law enforcement; and that the council stop authorizing or accepting funds for marijuana related law enforcement.

The complaint alleges that the county prosecutor stated before the council that state and federal drug laws trump the county ordinance and that adults caught with amounts of marijuana below the limit allowed by the county code ("24 marijuana plants or fewer, or the "dried equivalent" of 24 ounces of marijuana on private property," according to the article) are nevertheless still prosecuted under state law .

Here's a copy of the ordinance (pdf) - "known as the LOWEST LAW ENFORCEMENT PRIORITY OF CANNABIS ORDINANCE." I went looking for it because I was curious what could be meant by "lowest law enforcement priority." Interestingly enough, the statute defines it:

"Lowest Law Enforcement Priority" means a priority such that all law enforcement activities related to all offenses other than the possession or cultivation of Cannabis for adult personal use shall be a higher priority than all law enforcement activities related to the adult personal use of Cannabis. The Lowest Law Enforcement Priority regarding possession or cultivation of Cannabis shall apply to any single case involving 24 (twenty four) or fewer Cannabis plants at any stage of maturity or the equivalent in dried Cannabis, where the Cannabis was intended for adult personal use.

I'm trying to imagine the practical ramifications. If the police have anything else on their plate than crimes concerning the possession or cultivation of cannabis for adult personal use, then they can't pursue adult possessors or cultivators of pot - but if they get all caught up with everything else, they can?

Gov. Abercrombie’s refusal to disclose the names of judicial candidates

...discussed in the Star Advertiser here.

Sunrise Capital - Kauai County settlement agreement

Ken Taylor emailed me what purports to be the agreement between Sunrise Capital, Inc. and Kauai County settling the contested case before the state department of health relating to the county's application for a permit to expand the Kekaha landfill. Sunrise had sought the imposition of permit conditions claiming risks to its shrimp farm posed by the operation and expansion of the landfill. (I've put the document on a free hosting service, so it can be slow to open).

The agreement terminates the contested case and waives Sunrise's right to oppose or contest future expansions of the landfill. Sunrise also agrees to waive and release the county from claims asserting that the Kekaha landfill is the responsible source of the spread of shrimp diseases at Sunrise's shrimp operations - barring negligence or willful misconduct by the county, and providing that county operates the landfill in accordance with "all applicable regulations, protocols, and issued permits." Sunrise also agrees, "to the extent operationally possible," to work with the county in securing a twenty foot buffer area adjacent to the Coast Guard Kokole Lighthouse Road.

For its part, the county agrees to pay $250,000 to Sunrise in the form of reimbersements for completed work by Sunrise related to risk mitigation measures at the shrimp farm and hatchery to protect against diseases. Additionally, the county engineer is to submit to the county council a bill for an ordinance to ban commercial and non-residential raw shrimp from the landfill, and the county is to instruct landfill and transfer station employees to inspect for loads of raw shrimp, to urge disposers to boil raw shrimp before disposing of it, or order disposers to contain raw shrimp in double-bagged sealed containers (similar to the requirements for the disposal of asbestos, dead animals, and offal).

Star Advertiser editorial on travel guide liability bill

The Star Advertiser came out today against the house bill that would assign liability to "[t]he author and publisher of a visitor guide website or visitor guide publication whose visitor guide website or publication encourages, invites, attracts, or causes its readers to commit an offense under section 708-814 on privately owned land, and injury or death occurs as a result of the reader's reliance upon the visitor guide website or guide publication's statements in entering the privately owned land." (§708-814 is the statute that defines criminal trespass in the second degree and makes it a petty misdemeanor). The paper states, in part

First, the bill is an extreme departure from constitutional law and would not stand up in court. Since a landmark First Amendment case in 1964, the U.S. Supreme Court and lower courts have strongly protected publications from lawsuits resulting from injuries blamed on what people have read.

The 9th U.S. Circuit Court of Appeals, which has jurisdiction in Hawaii, rejected in 1991 a lawsuit brought by two mushroom enthusiasts against the publisher of "The Encyclopedia of Mushrooms." They had become critically ill and required liver transplants because mushrooms they had eaten were deemed in the book to be safe to eat. A year later, the Hawaii Supreme Court ruled that Fodor's Travel Publications could not be blamed for the injury of a Texas honeymooner by failing to warn him about dangerous conditions for bodysurfing at Kauai's Kekaha Beach.

If they couldn't apply liability to the Anarchist Cookbook...

(Link is fixed)
Derrick DePledge has a piece in the Star Advertiser today about a bill that

holds that authors and in some cases publishers of visitor guides and websites have a duty to warn readers of dangerous conditions. The bill would require authors and publishers to defend and indemnify private and public landowners from liability for injury or death when people trespass. It would also create a task force to identify problem areas statewide.

I don't know which version of the measure this Hawaii ACLU's submitted testimony on HR. 548, HD2, relating to trespass relates but, in any case, it would seem to apply perfectly well to the current version

The American Civil Liberties Union of Hawaii (“ACLU of Hawaii”) writes in opposition to H.B. 548, HD2, Relating to Trespass, which purports to allow for civil liability against publishers of visitor guides if readers who trespass on private property are injured or killed.

H.B. 548, HD2, poses a litany of constitutional issues. The subject material, visitor guides and visitor guide websites, are protected by the First Amendment. Moreover, it is well settled that state tort laws cannot circumvent or override the protections afforded by the First Amendment. See, e.g., New York Times v. Sullivan, 376 U.S. 254,265 (1964). State tort laws, which seek to impose civil liability on publications, have a substantial chilling effect on the publishers and distributors of such material. Accordingly, the ACLU opposes H.B. 548, HD2.

The Originalist Case for the Fourth Amendment Exclusionary Rule

A fascinating article in the Gonzaga Law Review. From the conclusion:

Early American criminal evidentiary remedies went for the most part unrecorded and unreviewed. What we do know of such remedies supports, rather than undermines, the notion that early American judges applied exclusion where evidence was taken illegally by state actors. The very first U.S. Supreme Court decisions to consider the meaning of the Fourth Amendment ordered criminal defendants discharged before trial on Fourth Amendment grounds. The earliest Supreme Court decision to construe the Fourth Amendment’s applicability to physical evidence applied an exclusionary rule. Pre-Founding statements by judges and commentators indicating that illegal seizure of evidence merited exclusion, or the vitiation of subsequent criminal prosecutions, brought no recorded challenge. By contrast, there was no known opposition to this position during the Founding period.

Contractor loses appeal of motion to compel arbitration with Kukui`ula Development Co.

Sometimes summary disposition orders from the Intermediate Court of Appeals are the best/only source of news on Kauai.

I see from one filed by the court today that general contractor Oceanic Companies, Inc. sued Kukui`ula Development Company, LLC, claiming that in August of '08, Kukui'ula had reduced the scope of work by about a million dollars, and then had sent Oceanic a termination letter after the reduced work was completed. Oceanic sued for lost profits under the parties' contract and alleged that by sending the notice of termination Kukui`ula was attempting to evade the lost-profit provision.

Then, Oceanic sought to arbitrate the issue by invoking the contract's arbitration clause which stated in relevant part

Any other dispute, claim or controversy involving Contractor and Owner and arising out of or related to the Work or this Master Contract may be resolved by binding arbitration...

Long story short: the circuit court denied the motion and the ICA, holding that the clause was permissive rather than mandatory, upheld the circuit court.

(There was actually a bit more to the arbitration argument than that, and if you're into that sort of things (by choice or by necessity) the order is worth a read- Oceanic Companies, Inc. v. Kukui`ula Development Co., No. 30126 (March 18, 2011). Or, if you want some black letter regarding construction of arbitration clauses, I pasted that portion up at my favorite searchable dump for black letter language, the Hawaii Appellate Law Blog.)

Island School takes second place at state mock trial tournament

I spent last weekend in Honolulu with the Island School mock trial team whom I've helped coach over the last few weeks. It was the state mock trial tournament (each county had its tournament a few weeks ago and winners advanced to state) and at the end of the day Saturday, Island School had taken second place. The kids were great - great poise, facility with the rules of evidence, quick on their feet - and I'm quite proud of them. Here they are with Associate Judge Daniel R. Foley who judged one of their trials.

Nominees for District Family Court of the Fifth Circuit (Kauai)

...to replace Judge Murashige who retired at the end of the year.


Edmund D. Acoba
Russell K.M.K. Goo
Daniel G. Hempey
Joseph N. Kobayashi
Alvin K. Nishimura
Sara L. Silverman

Maui electronic-enticement-of-a-child suspect "coerced" into confessing by a religious discussion and prayer

It's been almost a month since I last blogged. That's terrible. I thank those of you who have continued to check in periodically and even left comments. I can only plead an excessively busy schedule.

In lieu of all the substantive posts I've wanted to write over the last month but haven't, I'll point to this interesting involuntary confession case reporter Lila Fujimoto has in the Maui News today.

The 5th and 14th Amendment due process clauses in the federal constitution bar the admission in a criminal trial of involuntary confessions. Here, the defendant was arrested at Kalama Park in Kihei where according the the story, "he allegedly had gone to meet someone he met online and thought was a 14-year-old girl."

According to the story, the defendant initially refused to sign a waiver of his Miranda rights and asked to be allowed to pray with a friend who was an attorney. Interrogation ceased and as an officer was taking the defendant from the interrogation room to the cell block, the officer said he, too was a Christian and asked how the defendant, as a Christian could "get involved with something like this."

The defendant later asked for the officer, saying he wanted to speak and pray with him. The paper reports the officer as stating

"He talked a bit about his proclivity for young girls and child pornography," Prather said. "I then told him that I believed his contriteness, and he did not seem like a bad guy, but someone who had a problem to deal with. Goodman asked to pray with me about this, since he was scared. We prayed briefly together and afterwards, I told Goodman that he could give a statement if he wanted, and as a Christian, he needed to tell the truth."

Oops.

Go to the story to read the judge's analysis which, in a nutshell, was that even if unintentional and made in good faith, the officers actions amounted to improper coercion.