Oral Arguments Schedule

Case Details

Court

No. SCAP-23-0000416, Thursday, October 31, 2024, 9:00 a.m.

ANN GIMA, Plaintiff-Appellant, vs. CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Plaintiff-Appellant ANN GIMA:
     Joseph T. Rosenbaum, Elizabeth Jubin Fujiwara and Marcos R. Bendana of Fujiwara & Rosenbaum, LLLC

Attorneys for Defendant-Appellee CITY AND COUNTY OF HONOLULU:  
     Nicolette Winter, William K. Awong and Maria C. Cook, Deputies Corporation Counsel.

NOTE: Order granting Application for Transfer filed 03/07/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:          

This is an employment discrimination case involving a disability discrimination claim under Hawai‘i Revised Statutes (HRS) § 378-2.  Ann Gima (“Gima”) filed an employment discrimination claim against her employer, the City and County of Honolulu (“City”).  Gima was placed on workers’ compensation leave due to a stress injury.  As a reasonable accommodation, Gima requested to change supervisors as her sole permanent work restriction.  The City stated it was unable to accommodate Gima’s request.

Gima filed complaints with the Hawai‘i Civil Rights Commission (HCRC) alleging disability discrimination and retaliation.  These complaints were dismissed, and Gima timely filed a lawsuit in the circuit court.  The circuit court granted the City’s motion for summary judgment and found that as a matter of law, Gima did not have a prima facie case of disability discrimination or retaliation.  This appeal was transferred from the ICA to this court.

Gima asserts that the circuit court erred in granting the City’s motion for summary judgment on her disability discrimination and retaliation claims and raises several issues, including whether Gima has a “disability” within the meaning of HRS § 378-2, and whether a request to work for another supervisor is considered a reasonable accommodation.

No. SCWC-18-0000216, Thursday, October 31, 2024, 10:30 a.m.

STATE OF HAWAI‘I, DEPARTMENT OF PUBLIC SAFETY, Respondent/Employer-Appellant-Appellee, vs. RUTH FORBES (MAB Case No. 354), Petitioner/Appellee-Appellant, and MERIT APPEALS BOARD, SEAN SANADA, VALERIE B. PACHECO, and NORA NOMURA, Respondents/Agency-Appellees-Appellees. 

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner/Appellee-Appellant RUTH FORBES: 
     Ted H.S. Hong

Attorneys for Respondent/Employer-Appellant-Appellee STATE OF HAWAI‘I, DEPARTMENT OF PUBLIC SAFETY:
     Kaliko‘onalani D. Fernandes, Solicitor General, and Sianha M. Gualano, Deputy Solicitor General 

Attorney for Respondent/Agency-Appellees-Appellees MERIT APPEALS BOARD, SEAN SANADA, VALERIE B. PACHECO, and NORA NOMURA:
     Ernest Nomura and Sarah T. Casken, Deputies Corporation Counsel

NOTE: Order accepting Application for Writ of Certiorari, filed 07/10/24. 

NOTE: Order granting motion to continue to later date filed 08/13/24.

NOTE: Amended Notice of Setting for Oral Argument, now rescheduled to 10/31/24 at 10:30 AM, filed 08/22/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, 

Brief Description:

This appeal arises out of the discharge of Petitioner-Appellee-Appellant Ruth Forbes (Forbes) by her employer Respondent-Employer-Appellee State of Hawai‘i, Department of Public Safety (DPS) based on numerous charges of misconduct, including sexually harassing another DPS employee through unwanted physical contact (Charge No. 2).  Forbes is an excluded civil service employee subject to Hawai‘i Revised Statutes (HRS) Chapter 76.

Forbes appealed her discharge to the Merit Appeals Board (MAB), which found that twenty-one charges against Forbes were substantiated, including Charge No. 2.  The MAB concluded, however, that discharging Forbes was not “just”, would not “promote the efficiency of government service” under HRS § 76-46 (2012), and was not justified based on the principle of progressive discipline. The MAB ordered, among other things, that Forbes be reinstated to her position after serving a sixty-day suspension.

DPS appealed the MAB’s decision to the Circuit Court of the First Circuit (Circuit Court).  The Circuit Court held that, because Charge No. 2 was sustained by the MAB, Forbes should have been discharged pursuant to applicable DPS policies that the MAB was required to apply under HRS § 76-47(c) (2012).  That statute provides that MAB rules “shall recognize that the merit appeals board shall sit as an appellate body and that matters of policy, methodology, and administration are left for determination by the director.”  The Circuit Court thus held the MAB had exceeded its authority by not following the applicable policies.

Forbes appealed to the Intermediate Court of Appeals (ICA) arguing the Circuit Court erred by, among other things, determining: (a) that the MAB acted in excess of its statutory authority, and (b) that DPS policies supersede state law regarding discharge.  The ICA affirmed the Circuit Court’s judgment.

This court granted Forbes’s application for writ of certiorari, which raises the following questions: (1) did the ICA commit grave error by allowing the Circuit Courts to freely interfere with the MAB’s exclusive and original jurisdiction; and (2) did the ICA commit grave error by allowing employers to define “just cause”?   

CAAP-21-0000412, Wednesday, Noveber 13, 2024, 9 a.m.

CHAUNTELLE ACOL, individually and as Personal Representative of the ESTATE OF PETER J. KEMA, JR., deceased; ALLAN ACOL, and LINA ACOL, Plaintiffs-Appellees, v. STATE OF HAWAIʻI, DEPARTMENT OF HUMAN SERVICES, Defendant-Appellant, and PETER KEMA, SR.; JAYLIN KEMA, Defendants-Appellees, and JOHN DOES 1-10, Defendants.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliʻiōlani Hale, 2^nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻOlelo at olelo.org/tv-schedule/.

Attorneys for Defendant-Appellant STATE OF HAWAIʻI, DEPARTMENT OF HUMAN SERVICES:
     Caron M. Inagaki and Skyler G. Cruz, Deputy Attorneys General

Attorneys for Plaintiffs-Appellees CHAUNTELLE ACOL, individually and as Personal Representative of the ESTATE OF PETER J. KEMA, JR., deceased; ALLAN ACOL; and LINA ACOL:
     Randall L.K.M. Rosenberg and Ryan M. Kaufman

NOTE: Certificate of Recusal, by Ginoza, C.J., filed 03/28/22.

NOTE: Certificate of Recusal, by Wadsworth, J., filed 04/08/22.

NOTE: Certificate of Recusal, by Hiraoka, J., filed 04/09/24.

NOTE: Certificate of Recusal, by Guidry, J., filed 04/09/24.

NOTE: Certificate of Recusal, by Nakasone, J., filed 04/10/24.

NOTE: Order assigning Circuit Court Judge James H. Ashford in place of Nakasone, J., recused, filed 04/16/24.

COURT: Leonard, Acting C.J., McCullen, J., and Circuit Judge Ashford, in place of Nakasone, J., recused.

Brief Description:

In this interlocutory appeal, Defendant-Appellant State of Hawaiʻi, Department of Human Services (the State), appeals from the April 26, 2021 Order Denying [the State’s] Motion for Summary Judgment (Order Denying the State’s MSJ), and the April 26, 2021 Order Granting Plaintiffs’ Motion for Partial Summary Judgment as to the Affirmative Defense of Statute of Limitations (Order Granting Acols’ MPSJ), both entered by the Circuit Court of the First Circuit (Circuit Court).

  Years ago, many people in Hawaiʻi asked, where’s Peter Boy? Underlying this appeal is the undisputed fact that Peter J. Kema, Jr., widely known as Peter Boy, is dead. This case is a wrongful death action brought by Peter Boy’s estate and surviving siblings (the Acols). The complaint alleges that Peter Boy’s death in 1997 at age six was due to neglect and physical abuse inflicted by his parents and the State’s failure to timely investigate reports of abuse and to provide appropriate services.

In the Circuit Court proceedings, the State filed a motion for summary judgment, which was denied, and the Acols filed a motion for partial summary judgment, which was granted.

On appeal, the State contends that the Circuit Court erred in: (1) the Order Denying the State’s MSJ because the Acols lack standing to bring an action under Hawaii’s wrongful death statute, and even if the Acols have standing, the Acols’ claims are untimely and precluded as a matter of law; and (2) the Order Granting the Acols’ MPSJ because the applicable statute of limitations runs from the decedent’s death and the “discovery rule” does not apply in this case.

CAAP-20-0000239, Wednesday, Noveber 13, 2024, 10:30 a.m.

KELLY WAIAU, Individually and Guardian Prochein Ami of MINOR BOY 1, RAQUEL BALGA, ROMAINE DEBBIE CASTRO, as Personal Representative of the Estate of AMOS KEN AGLIAM, Plaintiffs-Appellants, vs. HAWAIʻI EMPLOYERS’ MUTUAL INSURANCE COMPANY, INC., FIRST INSURANCE COMPANY OF HAWAIʻI, LTD., GENERAL STAR INDEMNITY COMPANY, NORTH AMERICAN CAPACITY INSURANCE COMPANY, Defendants-Appellees, and JOHN DOES 1-10, JANE DOES 1-10, DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10, ROE “NON-PROFIT” CORPORATIONS 1-10, and ROE GOVERNMENTAL ENTITIES 1-10, Defendants.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Aliʻiōlani Hale, 2^nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo at olelo.org/tv-schedule/.

Attorneys for Plaintiffs-Appellants KELLY WAIAU, Individually and Guardian Prochein Ami of MINOR BOY 1, RAQUEL BALGA, ROMAINE DEBBIE CASTRO, as Personal Representative of the Estate of AMOS KEN AGLIAM:
     Laurent J. Remillard, Jr., Don V. Huynh, Rechelle A.M. Barbour, Robert P. Marx, and Ronald G. Self

Attorneys for Defendant-Appellee FIRST INSURANCE COMPANY OF HAWAIʻI, LTD.: 
     Stephen K. Roy and Lance S. Au

Attorneys for Defendant-Appellee NORTH AMERICAN CAPACITY INSURANCE COMPANY:
     Richard B. Miller, David R. Harada-Stone, and Ashley R. Shibuya

Attorney for Defendant-Appellee GENERAL STAR INDEMNITY COMPANY
     Gary G. Grimmer

COURT: Leonard, Acting C.J., Wadsworth, and Nakasone, JJ.

Brief Description:
Plaintiffs-Appellants Kelly Waiau, individually and as Guardian Prochein Ami of Minor Boy 1, Raquel Balga, and Romaine Debbie Castro, as Personal Representative of the Estate of Amos Ken Agliam (Waiau Parties) challenge two summary judgment orders that were entered against them, and in favor of three insurance companies, and then reduced to an appealable judgment. With these orders and the judgment, all of the Waiau Parties’ claims against these three insurers – Defendant-Appellee General Star Indemnity Company (General Star), Defendant-Appellee First Insurance Company of Hawaii, Ltd. (First Insurance), and Defendant-Appellee North American Capacity Insurance Company (NACIC) – were dismissed with prejudice.

The Waiau Parties’ claims arose, in the first instance, from the work-related death of Amos K. Agliam (Agliam), an employee of C&F Trucking. C&F Trucking is not an entity, but a “dba” and a trade name registered by Frank Lawrence (Lawrence). A claim was made on behalf of Agliam for workers’ compensation benefits and benefits were received by Agliam’s estate. The Waiau Parties sued C&F Trucking, Lawrence, and others, alleging that Agliam’s death was caused by the willful and wanton misconduct of his co-employees, including Lawrence. Lawrence et al. tendered to these three insurers, as well as his worker’s compensation and employer’s liability insurer, and they all denied any duty to defend or provide coverage for liability. That litigation ended with a judgment in favor of the Waiau Parties and an assignment of the defendants’ claims against the four insurance companies. The assignment underlies this action.


On appeal, the Waiau Parties argue that the Circuit Court erred in granting summary judgment based on the employee and fellow employee exclusions contained in First Insurance’s Business Auto policy, which were incorporated into the policies of General Star and NACIC. The Waiau Parties argue that these exclusions are invalid and unenforceable on various grounds, including based on the severability-of-interests clause contained in the First Insurance Business Auto Policy and the requirements of the Hawaii Motor Vehicle Insurance Law. This court requested supplemental briefing on issues related to a CONFLICT OF PROVISIONS term in the First Insurance Business Auto Policy that states the Motor Vehicle Insurance Law “shall take precedence” over policy provisions or endorsements if there is a conflict between them.

No. SCWC-22-0000357, Thursday, November 14, 2024, 10:30 a.m.

KP, Petitioner/Petitioner-Appellant, vs. EM, Respondent/Respondent-Appellee.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Petitioner/Petitioner-Appellant KP:
     Peter Van Name Esser and Mary Malone

Attorneys for Respondent/Respondent-Appellee EM:
     Bernard M. Herren of Cain & Herren, ALC 

NOTE: Order accepting Application for Writ of Certiorari filed 09/04/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

This appeal arises from a custody dispute between Petitioner-Appellant KP (Mother) and Respondent-Appellee EM (Father) over their two minor children.

Mother filed a petition seeking sole legal and physical custody of the children.  In response, Father sought custody of the children and permission to relocate with them to Utah.  At trial, the Family Court sustained multiple objections to portions of expert and lay testimony regarding the credibility of the children’s alleged disclosures of sex abuse, in part on hearsay grounds and in part citing to State v. Batangan, 71 Hawai‘i 552, 779 P.2d 48 (1990). 

On March 28, 2022, the Family Court issued an order dissolving a previous Family Court judge’s protective order against Father; granting Father sole legal and physical custody of the children with relocation to Utah; and awarding Mother visitation.  Mother filed a motion for reconsideration, clarification and further hearing, which the Family Court denied.

Mother appealed to the Intermediate Court of Appeals (ICA), which affirmed the Family Court.

This court granted Mother’s application for writ of certiorari, which raises the following questions:

Whether the ICA committed grave error by affirming the Family Court’s ruling dissolving a prior judge’s protective order based on Father’s threat of sex abuse to his children, granting him sole custody and relocation to Utah, and limiting Mother to supervised visitation.

Whether the ICA committed grave error by affirming the Family Court’s refusal to consider testimony of experts relevant to the credibility of the children’s disclosures of sex abuse and Mother’s good faith, and denying Mother’s motion for further hearing to address whether relocation was in the best interest of the children.

No. SCWC-22-0000464, Thursday, November 14, 2024, 2 p.m.

STATE OF HAWAI‘I, Petitioner/Plaintiff-Appellee, vs. ERIK WILLIS, Respondent/Defendant-Appellant.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner/Plaintiff-Appellee STATE OF HAWAI‘I:
     Brian Vincent, Deputy Prosecuting Attorney

Attorneys for Respondent/Defendant-Appellant ERIK WILLIS:
     Eric A. Seitz, Della A. Belatti, Jonathan M.F. Loo and Kevin Yolken of Eric A. Seitz, Attorney at Law, A Law Corporation

NOTE: Order accepting Application for Writ of Certiorari, filed 09/10/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

Erik Willis was charged with Attempted Murder in the Second Degree in connection with the stabbing of 17-year-old M.K. at Kahala Beach on July 8, 2020.

At trial, the State presented surveillance video footage of a man identified as Willis getting on and off the Bus near Kahala Beach around the time of the stabbing.  A witness for the State testified that he saw a man washing his hands and face in a white sink near the incident scene a short time after the stabbing.  No evidence of blood from the sink was entered into the record.  During closing arguments, the deputy prosecuting attorney referenced the witness testimony, stating that Willis “washed his hands and his face because he had blood on them.”  The jury convicted Willis of Attempted Murder in the Second Degree.  Willis filed a motion for entry of a judgment of acquittal or, in the alternative, for a new trial.  The circuit court denied the motion.

Willis appealed to the Intermediate Court of Appeals (ICA).  He argued that the prosecutor committed misconduct by arguing to the jury in closing, without evidence or basis in the record, that Willis had blood on his hands and t-shirt.  Further, Willis contended, the witness had not identified the man washing his hands as Willis, nor was there any evidence of blood found on the sink.  The State argued that the prosecutor’s comments drew reasonable inferences from the evidence on the record and were not misconduct.

The ICA vacated Willis’ conviction and remanded the case for a new trial.  It concluded that the statements amounted to misconduct and there was a “reasonable possibility that this misconduct might have affected the trial’s outcome.”

The State now asks this court to reverse the ICA’s holding and affirm Willis’ conviction, arguing that the ICA erred in its finding of prosecutorial misconduct.  The issue before this court is whether the prosecutor’s statements at trial amounted to prosecutorial misconduct and, if so, whether there was a reasonable possibility the alleged misconduct affected the outcome of the trial.

NO. SCWC-19-0000261, Thursday, November 21, 2024, 9 a.m., Loyalty Development v. Ching

LOYALTY DEVELOPMENT COMPANY, LTD., Respondent/Plaintiff-Appellee, vs. WALLACE S.J. CHING, INDIVIDUALLY AND IN HIS CAPACITY AS A DIRECTOR OF LOYALTY DEVELOPMENT COMPANY, LTD., Petitioner/Defendant-Appellant.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2^nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Petitioner/Defendant-Appellant WALLACE S.J. CHING, individually and in his capacity as a DIRECTOR OF LOYALTY DEVELOPMENT CO., LTD.:   
     Ward Jones of Bervar & Jones; Edmund K. Saffery and Deirdre Marie-Iha of Goodsill Anderson Quinn & Stifel

Attorneys for Respondent/Plaintiff-Appellee LOYALTY DEVELOPMENT CO., LTD.:
     Bert T. Kobayashi, Jr., Jonathan S. Moore and Caycie K. Gusman Wong of Kobayashi, Sugita & Goda, LLP

NOTE: Order accepting Application for Writ of Certiorari, filed 10/03/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

This case involves a dispute over attorneys’ fees between Loyalty Development Company, Ltd. (Loyalty) and one of its corporate directors, Wallace S.J. Ching.  In 2016, Loyalty filed a claim for declaratory judgment against Ching in his capacity as director.  The circuit court dismissed the claim without prejudice.  Following dismissal, Ching requested that Loyalty indemnify and reimburse him for reasonable expenses incurred in connection with his defense.  Loyalty retained independent counsel to render a decision on Ching’s request and, per the independent counsel’s recommendation, issued Ching a payment of $177,755.43.

Returning to the circuit court, Ching filed a motion for fees incurred in obtaining indemnification (“fees on fees”) under Loyalty’s Articles of Association and the Hawai‘i Business Corporation Act, Hawai‘i Revised Statutes (HRS) chapter 414.  The circuit court denied Ching’s motion, finding that he was not entitled to additional recovery beyond the $177,755.43 he had already accepted from Loyalty.  The Intermediate Court of Appeals (ICA) affirmed that conclusion.  On certiorari, Ching asserts that he is entitled to mandatory indemnification under HRS § 414-243 and that the scope of that entitlement includes the recovery of “fees on fees.”

No. SCWC-18-0000677 and No. SCWC-SCWC-18-0000678, Thursday, November 21, 2024, 10:30 a.m.

No. SCWC-18-0000677:  In re FT, by and through ALOHA NURSING REHAB CENTRE, Petitioner/Appellant-Appellant, vs. DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAI‘I, Respondent/Appellee-Appellee.

No. SCWC-SCWC-18-0000678:  In re FWH, by and through ALOHA NURSING REHAB CENTRE, Petitioner/Appellant-Appellant, vs. DEPARTMENT OF HUMAN SERVICES, STATE OF HAWAI‘I, Respondent/Appellee-Appellee.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner/Appellant-Appellant ALOHA NURSING REHAB CENTRE:
     Thomas E. Bush of Thomas Bush Law Office, LLLC

Attorneys for Respondent/Appellee-Appellee STATE OF HAWAI‘I, DEPARTMENT OF HUMAN SERVICES:
     James W. Walther and Lili A. Young, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari in SCWC-18-0000677 and SCWC-18-0000678, filed 09/13/24.

NOTE: Order consolidating SCWC-18-0000677 and SCWC-18-0000678 for oral argument only, filed 09/19/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

     The Court will hear argument in two cases In re FT and In re FWH.  These cases are consolidated only for the purpose of oral argument.  In both cases, Aloha Nursing Rehab Centre (Aloha) admitted a long-term care resident who was receiving Medicaid benefits through the Hawai‘i Department of Human Services (DHS).  In both cases, the resident became legally incapacitated and their authorized representative was also incapacitated.  DHS terminated Medicaid benefits for both residents, arguing that they were ineligible.  Aloha sought an administrative hearing to challenge the terminations on the residents’ behalf.  DHS maintains that Aloha lacked standing to request an administrative hearing for the resident under Hawai‘i Revised Statutes § 346-12.  Aloha contends it had standing to seek an administrative hearing.

NO. SCWC-22-0000516, Thursday, November 21, 2024, 2 p.m.

SIERRA CLUB, Petitioner/Appellant-Appellee-Cross-Appellee, vs. BOARD OF LAND AND NATURAL RESOURCES, Respondent/Appellee-Appellee/Cross-Appellee, and COUNTY OF MAUI, Respondent/Appellee-Appellee/Cross-Appellant, and ALEXANDER AND BALDWIN, INC. and EAST MAUI IRRIGATION COMPANY, LLC, Respondents/Appellees-Appellants/Cross-Appellees.

SIERRA CLUB, Petitioner/Appellant-Appellee, vs. BOARD OF LAND AND NATURAL RESOURCES, Respondent/Appellee-Appellant, and ALEXANDER AND BALDWIN, INC., EAST MAUI IRRIGATION COMPANY, LLC, COUNTY OF MAUI, Respondents/Appellee-Appellees.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2^nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner/Appellant-Appellee-Cross Appellee and Petitioner/Appellant-Appellee SIERRA CLUB: 
     David Kimo Frankel

Attorneys for Respondent/Appellee-Appellee/Cross-Appellee and Respondent/Appellee-Appellant BOARD OF LAND AND NATURAL RESOURCES: 
     Julie H. China and Melissa D. Goldman, Deputy Attorneys General

Attorneys for Respondent/Appellee-Appellee/Cross-Appellant COUNTY OF MAUI:  
     Victoria J. Takayesu, Corporation Counsel; Mariana Lowy-Gerstmar and Kristin K. Tarnstrom, Deputies Corporation Counsel

Attorneys for Respondents/Appellees-Appellants/Cross-Appellees and Respondent/Appellees-Appellees ALEXANDER AND BALDWIN, INC. and EAST MAUI IRRIGATION CO.:  
     Christopher T. Goodin and Trisha H.S.T. Akagi of Cades Schutte LLP

NOTE: Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 05/16/24.

NOTE: Order assigning Circuit Court Judge Clarissa Y. Malinao, in place of Ginoza, J., recused, filed 06/24/24.

NOTE: Order accepting Application for Writ of Certiorari, filed 07/11/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Devens, JJ, and Circuit Judge Malinao, in place of Ginoza, J., recused.

Brief Description:

This case arises as a secondary appeal, filed by the Sierra Club, of the Board of Land and Natural Resources’ (“BLNR” or “board”) November 13, 2020 decision to renew East Maui Irrigation Co. and Alexander & Baldwin’s (collectively, “A&B”) revocable permits (“RP”).  The RPs were for the use of 33,000 acres of state forest land and the diversion of millions of gallons of fresh water from the East Maui watershed region.

At a November 2020 BLNR public meeting, the Sierra Club requested that BLNR hold a contested case hearing on A&B’s application to renew the RPs for 2021.  The board denied Sierra Club’s request and proceeded to renew the RPs.

Sierra Club appealed BLNR’s decision to the circuit court.  The court concluded that Sierra Club had a property interest protected by due process rights, and that BLNR should have held a contested case hearing prior to the RP renewals.  The court ordered the RPs vacated, remanded the case to the BLNR for a contested case hearing, and stayed the vacating of the RPs while ordering a temporary modification of the RPs so that A&B could continue delivering water pending the outcome of the contested case hearing.

BLNR and A&B appealed the circuit court’s ruling to the Intermediate Court of Appeals (“ICA”).  The ICA majority disagreed with the circuit court’s determination and, instead, affirmed BLNR’s denial of Sierra Club’s contested case hearing request and vacated the circuit court’s modification of A&B’s RPs for 2021.

On certiorari, Sierra Club asserts the ICA erred on several points, including: (1) whether the ICA erred in holding the BLNR properly denied the Sierra Club a contested case hearing; (2) whether the ICA erred in concluding the Sierra Club’s property interest in this case did not arise from HRS § 205A; and (3) whether the environmental court had jurisdiction over Sierra Club’s appeal and the power to modify the RPs pending the remanded contested case hearing.

No. SCWC-19-0000047, Thursday, December 5, 2024, 9 a.m.

FREDERICK T. CAVEN, JR., on behalf of himself and a class of similarly situated persons, Respondent/Plaintiff-Appellant, vs. CERTIFIED MANAGEMENT, INC., DBA ASSOCIA HAWAI‘I, Petitioner/Defendant-Appellee.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Petitioner/Defendant-Appellee CERTIFIED MANAGEMENT, INC. dba ASSOCIA HAWAI‘I:
     David M. Louie, Nicholas R. Monlux and Ryan D. Louie of Kobayashi Sugita & Goda, LLP

Attorneys for Respondent/Plaintiff-Appellant FREDERICK T. CAVEN, JR.:
     Margery S. Bronster, Robert M. Hatch and Kelly A. Higa of Bronster Fujichaku Robbins

NOTE: Order accepting Application for Writ of Certiorari filed 09/06/24.

NOTE: Order granting motion to reschedule Oral Argument to Thursday, December 5, 2024, at 9:00 AM, filed 09/26/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza and Devens, JJ.

Brief Description:

This appeal addresses fees charged for documents related to the sale of a condominium unit.  Respondent Frederick T. Caven, Jr. (Caven) was co-owner of a condominium unit that was part of Poipu Kai Association (PKA), a planned community association, and Regency at Poipu Kai AOAO (Regency AOAO), a condominium association.  Petitioner Certified Management, Inc., dba Associa Hawaii (Associa) was managing agent for PKA and Regency AOAO.

Related to the sale of his unit, Caven requested documents pertaining to the PKA and Regency AOAO, including (a) Project Information Form RR105c (Form RR105c), a document containing disclosure information for a buyer and (b) a Statement of Account (SOA), which provided an estimate of association charges and information on the unit owner’s account.  Associa prepared the Form RR105c and SOA for the sale of Caven’s unit.  Caven’s realtor ordered and downloaded documents from a website maintained by Associa and was charged for them.

Pertinent to this appeal, Caven’s First Amended Complaint asserts that Associa violated Hawai‘i Revised Statutes (HRS) Chapter 514B (Count I).  In addressing Count I, the Circuit Court granted summary judgment in favor of Associa, holding that Form RR105c and SOA are not subject to the provisions of HRS Chapter 514B, and that Associa did not violate HRS §§ 514B-154(g) and 514B-154.5(e) when it charged fees for documents made available electronically for download. 

Caven appealed to the Intermediate Court of Appeals (ICA), which issued a Summary Disposition Order vacating the Circuit Court’s rulings on Count I.  This court then granted Associa’s Application for Writ of Certiorari, which presents three questions:

1. Whether the ICA gravely erred . . . when it applied the definition of “Association” to “Managing agent” — which are separately defined terms that apply to separate entities in HRS Chapter 514B — to . . . apply “Association” obligations under HRS § 514B-154.5(e) to a “Managing agent.”
2. Whether the ICA gravely erred when it read entirely new requirements into HRS Chapter 514B . . . by concluding that disclosures and documents required to be made available under HRS § 514B-154.5(a) are “not limited to what the condominium association keeps” and are “not limited to pre-existing documents.”
3. Whether the ICA gravely erred when it read entirely new requirements into HRS Chapter 514B . . . by concluding that the “Managing agent” in this case “had a duty” to provide the “Form RR105c” . . . and “Regency AOAO SOA” . . . , which are documents prepared by the “Managing agent” and are not documents, information, or records kept by the “Association” pursuant to HRS §§ 514B-105, -152, -154.5.

No. SCWC-19-0000095, Thursday, December 5, 2024, 2 p.m.

ECKARD BRANDES, INC., Respondent/Appellant-Appellee, vs. DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Respondent/Appellee-Appellee and SCOTT FOYT, Petitioner/Intervenor-Appellant.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorney for Petitioner/Intervenor-Appellant SCOTT FOYT:
     Shawn A. Luiz

Attorney for Respondent/Appellant-Appellee ECKARD BRANDES, INC.: 
     Richard M. Rand of Marr Jones & Wang

NOTE: Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 07/31/24.

NOTE: Order assigning Circuit Judge Matthew J. Viola in place of Ginoza, J., recused, filed 09/09/24.

NOTE: Order accepting Application for Writ of Certiorari, filed 09/12/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Devens, JJ., and  Circuit Judge Viola, in place of Ginoza, J., recused

Brief Description:

     This case concerns a dispute over wages paid by Eckard Brandes, a contractor for public works projects in Hawai‘i, and Scott Foyt, a former employee of Eckard Brandes.  HRS Chapter 104-2(b) requires that every laborer working on the construction site of a public work project must be paid no less than a prevailing wage by the director of the Department of Labor and Industrial Relations (DLIR).  During the times relevant to this case, Eckard Brandes did public works projects including inspection, cleaning, and repair work on sewer pipes.

In 2005, the DLIR director sent a letter to Eckard Brandes indicating that inspection and cleaning functions would no longer be covered by HRS Chapter 104, so Eckard Brandes would no longer be required to pay employees performing inspection and cleaning work at the higher prevailing wage.  Eckard Brandes thus paid employees different wages, depending on the work being done and tools being used.  Foyt’s main duties included cleaning, and Eckard Brandes paid him at a lower wage.  In 2013, the DLIR director (a different director from 2005) wrote another letter indicating that when cleaning and inspection work are performed as part of a project that also includes repair work, the cleaning and inspection work is covered by HRS Chapter 104 and thus subject to a higher wage.

Foyt then filed a complaint with the DLIR, alleging that Eckard Brandes inappropriately paid him the lower wage when he was doing cleaning work for projects he worked on between 2011 and 2013.  A DLIR hearings officer agreed, and the DLIR director affirmed the inspector’s penalty assessment.  Eckard Brandes appealed the decision to the circuit court, which reversed.  The circuit court concluded that it was “arbitrary and capricious for the department to vary from the clear statements made in the director’s July 26, 2005 Letter upon which [Eckard Brandes] reasonably relied in calculating its expenses to submit its bids on [] these state contracts. . . the State cannot change the rules after a clear statement like this without notice being given to the employer.”

The Intermediate Court of Appeals affirmed the circuit court’s decision, holding that the 2005 letter was within the then-DLIR director’s power to issue, and that Eckard Brandes reasonably relied on that letter in making calculations for its bid.  Foyt filed an application for writ of certiorari with this court, arguing, among other things, that (1) the then-director’s 2005 letter directly conflicted with Hawai‘i Administrative Rules (HAR) Rule 12-22-1 and that the director should not receive deference, (2) because inspection and cleaning is integral to construction work, it should have been compensated at the higher rate, and (3) cleaning work counts as excavation work under HAR § 12-22-1.

No. SCAP-23-0000540, Tuesday, December 10, 2024, 10 a.m.

BLOSSOM BELL, Petitioner/Appellant-Appellee, vs. HAWAI‘I PUBLIC HOUSING AUTHORITY, Respondent/Appellee-Appellant.

The above-captioned case has been set for oral argument on the merits at:

Mililani High School Gymnasium
95-1200 Meheula Parkway
Mililani, HI 96789

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Petitioner/Appellant-Appellee BLOSSOM BELL:
     Nicholas J. Severson and Cynthia R. Moore of Legal Aid Society of Hawai‘i

Attorneys for Respondent/Appellee-Appellant HAWAI‘I PUBLIC HOUSING AUTHORITY:
     Craig Y. Iha and Klemen Urbanc, Deputy Attorneys General

NOTE: Order granting Application for Transfer, filed 05/17/24.

COURT: Recktenwald, C.J., McKenna, Eddins, Ginoza and Devens, JJ.

Brief Description:

This case involves the Hawai‘i Public Housing Authority’s (“HPHA”) eviction of tenant Blossom Bell (“Bell”) from public housing.  Bell had lived in her public housing unit for 40 years.  At some point, her young granddaughter moved in with her.  Bell’s son-in-law was visiting the unit when he attacked and severely injured Bell’s downstairs neighbor.  The attack was unforeseeable.  Bell’s son-in-law immediately left the HPHA property and has not returned since.

HPHA issued Bell a notice of termination based on her guest’s criminal act.  While Bell was provided a grievance hearing, she was not provided with an opportunity to “cure” the violation.  The hearing officer determined Bell violated her rental agreement and referred the matter to the eviction board.  The eviction board agreed.  Specifically, the eviction board determined that Bell’s violation was, under the relevant Hawai‘i Administrative Rules (“HAR”), “non-curable due to the serious nature of the offense.”

Bell appealed the order of eviction to the circuit court, arguing that the relevant HAR conflicted with the HPHA’s “Admission and Continued Occupancy Policy” (“ACOP”), which required HPHA to provide Bell with at least 24 hours to cure the alleged violation forming the basis of the eviction.  In this case, Bell argued she had cured the violation because her son-in-law left the property and had not returned since.  The circuit court agreed with Bell.  The circuit court reversed the order of eviction and remanded the case to the eviction board to hold a new hearing applying the curability provisions of the ACOP.

On remand, the eviction board applied the ACOP but determined that Bell’s son-in-law’s departure did not “cure” her violation of the rental agreement because there was no way for her to undo the assault of her downstairs neighbor.  The eviction board thus re-adopted its order of eviction.     

Bell once again appealed the order of eviction to the circuit court.  The circuit court reversed the eviction board’s decision and reinstated Bell’s rental agreement.  HPHA appealed to the ICA, and the case was transferred to the Hawai‘i Supreme Court. 

No. SCWC-19-0000776, January 14, 2025, 10:30 a.m.

MAUNALUA BAY BEACH OHANA 28, a Hawai‘i Non-Profit Corporation, MAUNALUA BAY BEACH OHANA 29, a Hawai‘i Non-Profit Corporation, MAUNALUA BAY BEACH OHANA 38, a Hawai‘i Non-profit Corporation, individually and on behalf of all others similarly situated, Petitioners/Plaintiffs-Appellants/Cross-Appellees, vs. STATE OF HAWAI‘I, Respondent/Defendant-Appellee/Cross-Appellant.

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2^nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television olelo.org/tv-schedule/.

Attorneys for Petitioners/Plaintiffs-Appellants/Cross-Appellees MAUNALUA BAY BEACH OHANA 28, MAUNALUA BAY BEACH OHANA 29, MAUNALUA BAY BEACH OHANA 38:

     Paul Alston, Claire Wong Black, Maile Osika of Dentons US LLP

Attorneys for Respondent/Defendant-Appellee/Cross-Appellant STATE OF HAWAI‘I:  

     Kaliko‘onālani D. Fernandes, Solicitor General, Lauren K. Chun, Deputy Solicitor General, David Day and William J. Wynhoff, Deputy Attorneys General

NOTE: Certificate of Recusal, by Associate Justice Lisa M. Ginoza, filed 06/18/24.

NOTE: Order assigning Circuit Judge Jordon J. Kimura, in place of Ginoza, J., recused, filed 07/31/24.

NOTE: Order accepting Application for Writ of Certiorari, filed 08/12/24.

NOTE: Order Granting Joint Motion to Reschedule Oral Argument, filed 09/10/24.

COURT: Recktenwald, C.J., McKenna, Eddins, and Devens, JJ, and Circuit Judge Kimura, in place of Ginoza, J., recused.

Brief Description:

          Petitioners Maunalua Bay Beach Ohana 28, Maunalua Bay Beach Ohana 29, and Maunalua Bay Beach Ohana 38 brought an inverse condemnation action against the State of Hawai‘i in 2005.  At that time, they argued that the State effected a taking of accreted lands via Act 73 of 2005.  In 2009, the Intermediate Court of Appeals (ICA) held that Act 73 “effectuated a permanent taking of littoral owners’ ownership rights to existing accretions to the owners’ oceanfront properties that had not been registered or recorded or made the subject of a then-pending quiet-title lawsuit or petition to register the accretions.”  Maunalua Bay Beach Ohana 28 v. State, 122 Hawai‘i 34, 57, 222 P.3d 441, 464 (Ct. App. 2009).

On remand from the ICA, Petitioners sought just compensation for the alleged temporary taking of their accreted lands between 2005 and 2012.  At trial, the circuit court concluded that $0 was just compensation for the alleged temporary taking of the accreted land and no nominal damages should be awarded to the petitioners.  It also determined that the petitioners were not entitled to attorney’s fees.

The ICA affirmed the circuit court’s decision.  With regard to attorney’s fees, the ICA held that the petitioners’ “claim for attorneys fees against the State for obtaining declaratory relief is barred by sovereign immunity.”  The ICA further held that the Ohanas were not entitled to attorney’s fees under the private attorney general doctrine. 

In their application for certiorari, the petitioners argue that the ICA erred in affirming the circuit court’s award of $0 in just compensation with no nominal or severance damages.  Petitioners also contend that the ICA erred by concluding that sovereign immunity bars an award of attorney’s fees, and that they would not be entitled to fees under private attorney general doctrine.  The State contends that the ICA did not err in affirming the circuit court’s award of $0 in just compensation or declining to award nominal damages to petitioners.  It also argues that the ICA correctly held that sovereign immunity bars petitioners’ claim for attorney’s fees, and that even if it did not, petitioners would not be entitled to attorney’s fees under the private attorney general doctrine.