Mark E. Recktenwald

The case involved the prosecution of Steve Cabagbag for unauthorized control of a propelled vehicle and second-degree theft, based primarily on a police officer’s eyewitness identification of him as the person who drove a stolen truck containing stolen tools late at night. The Hawaii Supreme Court held that, going forward, trial courts must give a specific jury instruction on evaluating eyewitness identification evidence whenever such evidence is central to the case and the defendant requests the instruction; the court also adopted a model instruction for that purpose. The ruling rests on the established risks of misidentification and the need to guide juries in assessing factors like observation conditions, witness certainty, and potential biases. The ICA’s affirmance of the conviction was reviewed in this context, with the new instruction requirement applied prospectively.

criminal lawprocedure

In Kakinami v. Kakinami, a divorce case, Aaron Kakinami appealed the family court's Supplemental Divorce Decree, which classified gifts and inheritances received by Bonnie Kakinami during their marriage as Marital Separate Property and awarded them entirely to her, while also challenging later orders requiring him to pay her share of the marital residence. The Intermediate Court of Appeals affirmed, and the Hawaii Supreme Court granted certiorari to address whether Marital Separate Property could be divided and whether the family court had jurisdiction over post-decree enforcement orders. The court held that the family court did not abuse its discretion by awarding the property solely to Bonnie, as Marital Separate Property remains non-divisible under the Partnership Model of property division established in Hussey v. Hussey. It further ruled that the family court retained jurisdiction to issue the February 2009 order compelling payment, because that order enforced rather than modified the original decree. The Supreme Court therefore affirmed the ICA's judgment.

family lawpropertyprocedure

The case concerned Lloyd Pratt, who was cited three times for violating park closure rules by residing in a restricted area of Nā Pali Coast State Park on Kauaʻi; he moved to dismiss the charges by asserting a defense under Article XII, § 7 of the Hawaiʻi Constitution that his conduct constituted a protected customary or traditional native Hawaiian practice. Building on the three-prong minimum test from State v. Hanapi, the Hawaiʻi Supreme Court held that a defendant who satisfies those requirements is entitled to a further balancing analysis in which the court weighs the strength of the claimed native Hawaiian right against the state's interest in enforcing the regulation at issue. The court clarified that this mixed question of law and fact is reviewed by applying clear-error review to factual findings and de novo review to legal conclusions, then vacated the convictions and remanded for proper application of the balancing test.

criminal lawcivil rightsenvironmentprocedure

In Berry v. Berry, a divorce case, Wayne Berry sought to set aside a 2008 divorce decree that awarded his copyrights to his ex-wife Julianne after he failed to appear at a settlement conference, resulting in a default judgment. The Hawaii Supreme Court held that the family court properly denied most of the motion to set aside the decree because Berry had received notice that nonappearance could lead to default. However, the court ruled that the decree’s transfer of Berry’s full ownership interest in the copyrights to his ex-wife violated federal copyright law, which reserves control over ownership, transfer, and related rights exclusively to federal authority and permits only division of economic interests. The court therefore vacated that portion of the decree, affirmed the rest, and remanded for a determination of the economic interest to which Julianne Berry was entitled.

family lawpropertyfederal powerprocedure

The case arose from a 2000 fatal car accident on a Hawaii highway, in which the plaintiffs sued the State for negligence and wrongful death after settling with the other driver; they lost at a bench trial when the circuit court found the State not liable. After the circuit court entered judgment for the State in April 2007, the plaintiffs filed a notice of appeal after the standard 30-day deadline but within an extended deadline granted by a trial-court order based on the parties’ stipulation. The Intermediate Court of Appeals dismissed the appeal for lack of jurisdiction because the notice was untimely and the extension order was invalid under the appellate rules. The Hawaii Supreme Court held that, under the unique factual circumstances presented, the ICA erred in dismissing the appeal; it vacated that dismissal and remanded for merits review. The court reasoned that the plaintiffs had reasonably relied on a pre-deadline court order extending the filing date, the State was not prejudiced, and equitable principles permitted excusing the late filing.

proceduretorts & liability

The case concerned whether beneficiaries of the Hawaiian Homes Commission Act could sue to compel the Hawai‘i legislature to provide additional funding to the Department of Hawaiian Home Lands under Article XII, Section 1 of the state constitution, which requires the legislature to make “sufficient sums” available for four purposes: lot development, loans, rehabilitation projects, and DHHL administration and operations. The Hawai‘i Supreme Court held that the political question doctrine does not bar courts from determining what constitutes “sufficient sums” for administrative and operating expenses, but does bar such determinations for the other three purposes. The court reasoned that the constitutional text and its convention history provide no judicially manageable standards for deciding how much funding is “sufficient” or how quickly homesteads must be developed for those three categories, rendering any declaratory judgment on those issues nonjusticiable. It therefore affirmed the ICA on narrower grounds, limiting justiciability to the administrative-expense claim.

civil rightspropertyprocedure

The case concerned the City and County of Honolulu Department of Environmental Services’ application for a special use permit to expand the Waimanalo Gulch Sanitary Landfill on Oahu, the island’s only landfill permitted to accept municipal solid waste. The Land Use Commission approved the permit but imposed Condition 14, which barred the landfill from accepting municipal solid waste after July 31, 2012. The Hawaii Supreme Court vacated the circuit court’s judgment that had upheld the LUC’s decision and remanded the matter to the LUC. It held that the LUC possesses authority to attach conditions to special-use-permit approvals, yet Condition 14 was not supported by substantial evidence in the record; because the LUC’s approval was expressly made subject to that material condition, the approval could not stand.

environmentbusiness & regulatoryprocedure

The case concerned whether criminal complaints charging Nesmith and Yamamoto with operating a vehicle under the influence of an intoxicant (OVUII) under HRS § 291E-61(a)(1) (impairment) and/or (a)(3) (blood alcohol content of 0.08 or higher) were legally sufficient when they omitted any allegation of mens rea. The Hawaii Supreme Court held that an (a)(1) charge must allege the requisite mental state to fully define the offense in terms readily understandable to a person of common understanding, but that an (a)(3) charge is an absolute-liability offense for which mens rea need not be alleged or proven. The court rejected the ICA’s reliance on general-intent precedents and its extension of HRS § 806-28 to district-court proceedings, yet affirmed the convictions because the (a)(3) allegations were sufficient and the defendants did not contest the evidence supporting those counts.

criminal lawprocedure

The case involved Jason Kiese’s conviction for harassment, a petty misdemeanor, after a bench trial in family court for striking his six-year-old son. The Hawai‘i Supreme Court affirmed the conviction, holding that sufficient evidence supported it and that any issues with the child’s testimony and the prosecutor’s questioning did not require reversal. On the sentencing issue, the court ruled that the Intermediate Court of Appeals erred by deeming the family court’s denial of a stay pending appeal moot; instead, the public-interest exception applied, and Kiese was entitled as a matter of right under HRS §§ 804-4(a) and (b) and prior precedent to continued bail after conviction, which deprived the trial court of jurisdiction to execute the probationary sentence during the appeal. Because Kiese had already completed probation, the court affirmed the judgment despite finding the denial of the stay improper.

criminal lawfamily lawprocedure

In State v. Lealao, the Hawai‘i Supreme Court reviewed a criminal conviction for second-degree assault in which the defendant sought to exclude his out-of-court statement, “I’m so sorry. I made a big mistake,” made during a phone call after the incident. The trial court and Intermediate Court of Appeals had applied Hawai‘i Rules of Evidence Rule 409.5—which bars evidence of sympathy or condolence to prove liability—to exclude the words “I’m so sorry” as an expression of sympathy. The Supreme Court held that Rule 409.5 applies only in civil cases, not criminal proceedings, and that the full statement was relevant and admissible as a party admission under Rule 803(a)(1). Although the lower courts erred in excluding part of the statement, the error was harmless beyond a reasonable doubt because the defendant later testified and explained the remark, so the conviction was affirmed.

criminal lawprocedure

The case involved homeowners Charles and Lisa Hart, who held a title insurance policy from TICOR covering their Ewa Beach property. When the State of Hawaii asserted an escheat claim against the land in a quiet-title action, the Harts tendered defense to TICOR, which refused on the ground that the claim fell outside policy coverage. The district court and ICA ruled for TICOR, but the Hawaii Supreme Court reversed, holding that TICOR owed a duty to defend because the policy expressly insured against loss from any defect or claim affecting title, and an insurer’s duty to defend is triggered whenever the underlying complaint alleges facts that potentially fall within coverage. The Court further held that this duty is not eliminated by later abandonment of the claim or by procedural defects in the State’s pleading, and it remanded for entry of judgment and an award of attorneys’ fees and costs to the Harts limited to the period from tender until the escheat claim was resolved by court order.

propertyprocedure

Orlando Pecpec was charged with 25 counts of violating a protective order based on voicemails and text messages allegedly sent to his former spouse. The jury acquitted him on the first six counts, which lacked supporting exhibits, but convicted him on the remaining 19 counts tied to specific audio recordings and photographs. On appeal, Pecpec argued that the lack of a specific unanimity instruction violated his right to a unanimous verdict and that his consecutive sentence on Count 13 was improper. The Hawai‘i Supreme Court held that a unanimity instruction was required but the omission was harmless, as the evidence, instructions, and arguments clearly established a one-to-one link between the 19 exhibits and the 19 counts on which he was convicted. The court vacated the consecutive sentence on Count 13, however, because the record did not show that the jury had connected that count to the particular exhibit used to justify the consecutive term, and remanded for resentencing while affirming the convictions in all other respects.

criminal lawprocedurefamily law

The case arose after Joseph Toro, an employee of Diversified Machinery, was injured in a work-related accident on property owned by A&B Properties. First Insurance, Diversified’s workers’ compensation insurer, timely sued A&B within the two-year statute of limitations under HRS § 657-7 to recover benefits paid to Toro. After the limitations period expired, Toro sought to intervene in that suit, but the circuit court granted A&B summary judgment, ruling that HRS § 386-8 barred an employee from joining an employer’s action once the limitations period had run. The Hawaii Supreme Court reversed, holding that § 386-8 expressly permits an employee to join an employer’s timely filed action “at any time” except as limited by chapter 657, and that the statute of limitations restricts only the commencement of a new suit, not intervention in an existing one. The court therefore vacated the judgment and remanded for further proceedings.

labor & employmentprocedure

AlohaCare, an HMO, unsuccessfully bid for a state Quest Expanded Access contract to provide managed care services to aged, blind, or disabled Medicaid recipients and then petitioned the Insurance Commissioner for a ruling that only entities holding an HMO license under HRS chapter 432D could perform the contracts. The Commissioner, and later the circuit court, rejected that position, concluding that accident and health insurers already licensed under HRS article 431:10A were authorized to furnish the required services. On appeal, the Hawai‘i Supreme Court affirmed, holding that the QExA contracts constitute insurance because the successful bidders assume risk for healthcare costs of enrolled members, that both insurer and HMO licenses permit offering the limited-physician-group model of care demanded by the RFP, and that this reading does not nullify the HMO Act. The court also confirmed AlohaCare’s standing to bring the appeal.

healthcarebusiness & regulatory

The Hawaii Supreme Court addressed a certified question from a federal district court case in which the estate of a long-term care insurance policyholder sued Hartford Life Insurance Company and MedAmerica Insurance Company for bad faith handling of a claim. The court considered whether, in a first-party insurance dispute, an insured must prove they suffered economic or physical loss caused by the insurer’s bad faith in order to recover emotional distress damages. It held that no such proof is required. The court reasoned that Hawaii precedent allows emotional distress damages as a direct consequence of bad faith breach of an insurance contract, and that existing procedural safeguards—including the preponderance-of-evidence standard, jury evaluation of credibility, and the trial court’s power of remittitur—adequately protect against unfounded claims.

business & regulatorytorts & liability

In State v. Taylor, Daniel Taylor faced a Hawaii state indictment for first-degree theft after removing Native Hawaiian artifacts from Kanupa Cave, following his earlier federal guilty plea to conspiracy to traffic in items protected under the Native American Graves Protection and Repatriation Act (NAGPRA) for the same conduct. The Hawaii Supreme Court affirmed the lower courts’ denial of Taylor’s motion to dismiss, holding that the grand jury received sufficient evidence to establish probable cause that the artifacts were “property of another” and that the state prosecution was not barred by HRS § 701-112. The court clarified that the State must show more than mere non-ownership by the defendant but found adequate proof here from the artifacts’ repatriation to the cave and associated cultural interests. It further reasoned that the theft charge requires proof of facts and protects interests (general property rights) distinct from those in the federal conspiracy offense (specific cultural-item protections), so successive prosecution was permitted.

criminal lawpropertyprocedurefederal power

In this premises liability case, hotel guest Michele Steigman sued Outrigger Enterprises for negligence after she slipped on a wet lanai at the Ohana Surf Hotel, slid across the balcony, and injured her foot; a jury found the hotel not negligent, and the Intermediate Court of Appeals affirmed. On certiorari, the Hawaii Supreme Court addressed whether the traditional common-law defense—that a landowner owes no duty for known or obvious dangers—remains a complete bar to recovery after the legislature enacted Hawaii’s comparative negligence statute, HRS § 663-31. The court held that the defense is inconsistent with the statute, which allows an injured plaintiff to recover damages even if her own negligence contributed to the injury, provided it is not greater than the defendant’s. It therefore eliminated the defense as a total bar in premises cases, ruling instead that any known or obvious characteristics of a hazard should be weighed by the jury as part of the comparative fault analysis. The court vacated the judgments below and remanded for further proceedings.

torts & liability

This case involved an ejectment action filed by Deutsche Bank in Hawai‘i district court to obtain possession of property it had purchased, after which defendant Wayne Peelua sought dismissal on the ground that title to the land was in question and therefore beyond the district court’s jurisdiction. Under District Court Rules of Civil Procedure Rule 12.1, a defendant raising such a defense must submit an affidavit that sets forth the source, nature, and extent of the claimed title with enough detail to fully apprise the court of the claim. The Hawai‘i Supreme Court held that Peelua’s affidavit failed to meet this standard because it lacked the required specificity and particulars. The court therefore ruled that the district court properly retained jurisdiction, affirmed the judgment for possession in favor of the bank, and vacated the Intermediate Court of Appeals decision that had directed dismissal. The opinion also clarified that the bank’s quitclaim deed, attached to its complaint, was not offered as counter-evidence to rebut the defense.

propertyprocedure

In Re Bettencourt concerned court-appointed defense counsel David Bettencourt’s request for excess fees beyond the $6,000 statutory cap under HRS § 802-5(b) for representing a defendant charged with multiple counts of attempted murder. The trial judge certified the full amount as necessary for fair compensation, but the administrative judge summarily reduced it without explanation. The Hawaii Supreme Court held that both judges must independently determine whether excess fees constitute “fair compensation,” that such fee orders are judicial acts reviewable on appeal for abuse of discretion, and that any reduction requires the judge to state reasons on the record. Because the administrative judge provided no explanation or itemized adjustments, the court could not assess whether discretion had been properly exercised and therefore vacated the reduction order and remanded the matter.

criminal lawprocedure

This case arose from a 2003 Honolulu traffic accident in which a vehicle driven by James Han struck minor Gregory Kanahele in a crosswalk, causing facial lacerations that required surgery; Gregory’s father and sister witnessed the incident and joined the negligence suit seeking damages for the child’s injuries and their own emotional distress. The jury awarded $12,280.41 in special damages but initially returned zero general damages for pain and suffering; after the trial court instructed it that the verdict was inconsistent and directed further deliberations, the jury awarded $1 in general damages. The Hawai‘i Supreme Court held that a $1 general-damages award after resubmission is the symbolic equivalent of no award when evidence of pain and suffering exists, rendering the verdict inconsistent. It therefore vacated the damages portion of the judgment, affirmed the remainder, and remanded for a new trial on both special and general damages. The Court reasoned that, absent circumstances permitting a zero award (such as lack of credible evidence), an award of special damages paired with nominal general damages requires retrial.

proceduretorts & liability