So, just in case you were wondering what new and important cases were issued by the Hawaii courts this year, you are in luck if you are a member of the Hawaii State Bar Association's Real Property and Financial Services Section. My partner Greg Kugle and I are presenting our 2nd Annual Real Estate Litigation. If you aren't a member, then I've posted our outline, with hyperlinks to the decisions or blog posts about the decisions, below:
HSBA Real Property and Financial Services Section
Litigation Update – Nov. 21, 2014
12:00 p.m. – 1:00 p.m.
Gregory W. Kugle and Mark M. Murakami
Land Use/Development Litigation – Kellberg v. Yuen (III) ; Kauai Springs, Inc. v. County of Kauai Planning Commission; Friends of Makakilo v. D. R. Horton – Schuler Homes, LLC; Blake v. County of Kaua’i Planning Commission (Amended Opinion) ; Blake v. County of Kaua'i Planning Commision (Memorandum Opinion); Bridge Aina Lea, LLC v. Chock ; Aina Lea Litigation ; Kilakila v. Board of Land and Natural Resources ; Molfino v. Yuen ; Goo v. Arakawa ; Pilaa 400, LLC v. Bd. Of Land & Natural Resources
Condemnation – James v. City & County of Honolulu
Condo Disputes (Attorney’s Fees): AOAO of Discovery Bay v. Mitchell
National Cases with Potential Impacts in Hawaii
Supreme Court decision on…easements? Brandt v. United States
Right to Enter Statutes – taking? Property Reserve, Inc. v. Superior Court
Williamson County and Procedural Due Process Claims: Kurtz v. Verizon New York, Inc.
Ebola Victim in Hawaii? Thankfully, it appears not, but the potential for an infectious or viral outbreak prompted this disaster-law wonk to crack open my copy of the Hawaii Revised Statutes and see what the government can actually do in the event of such an outbreak.Is the answer similar to what J. T. Walsh said in the movie Outbreak?So, what can the State of Hawaii do to respond to a potential public health outbreak? Quite a lot actually.In response to a threat of "dangerous disease", the Director of the Department of Health can maintain a place of quarantine and may quarantine any individual by the least restrictive means necessary to protect public health. Haw. Rev. Stat. 325-8.Some interesting points about a quarantine, under Hawaii law:
- Violation of a quarantine order is a misdemeanor.
- A quarantine order is obtained, absent immediate threat to public health, by way of ex parte order obtained from the Circuit Court. In a situation of immediate threat to public health, the Department of Health may quarantine an individual then apply for the ex parte order.
- There is a right to contest the order at hearing and to contest the continued quarantine every thirty days thereafter.
- The State, upon written request, must appoint counsel for the quarantined individuals.
I will leave you with the final tidbit of information about quarantines? The costs, in terms of food, lodging, medicine for the quarantined individuals, are borne by the individuals themselves.
And, I couldn't find any statutory reference to authorizing a "fuel air" bomb to vigorously enforce the quarantine. Whew.
The Fifth Circuit, sitting en banc, held that punitive damages were NOT available for unseaworthiness claims. The case is Haleigh Janee McBride v. Estis Well Serv. and the original opinion can be found here. In a lengthy opinion, with multiple concurring/dissenting opinions, the panel found that the Supreme Court's decision in Atlantic Sounding Co, Inc. v. Townsend did not overrule the Court's prior precedent in Miles v. Apex Marine Corp.
We took this case en banc to decide whether the seaman plaintiffs in this case, both the injured seamen and the personal representative of the deceased seaman, can recover punitive damages under either the Jones Act or the general maritime law. We affirm the district court and conclude that this case is controlled by the Supreme Court’s decision in Miles v. Apex Marine Corp., which holds that the Jones Act limits a seaman’s recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness. Because punitive damages are non-pecuniary losses, punitive damages may not be recovered in this case.
Stay tuned to this one. The opinion notes no circuit splits, but we suspect that will not last for long.
As we quickly approach Election Day, 2014, we thought it might be helpful to provide some history and analysis of the proposed amendments to the Hawaii Constitution to help voters get through the legal-ese.
Question 1: Relating to Disclosure of Judicial Nominees.
Shall the judicial selection commission, when presenting a list of nominees to the governor or the chief justice to fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court, circuit courts or district courts, be required, at the same time, to disclose that list to the public?
Analysis: In the wake of the Star-Advertiser v. Abercrombie litigation, the Judicial Selection Commission passed a rule authorizing itself to publicly disclose the list of its nominees for judicial appointments concurrent with its submission of nominees to the appointing authority: the Governor's office for the Supreme Court, Intermediate Court of Appeals and Circuit Courts and the Chief Justice for the District and Family Courts. This amendment to the Constitution would elevate that practice to a requirement.
Question 2: Relating to Agricultural Enterprises.
Shall the State be authorized to issue special purpose revenue bonds and use the proceeds from the bonds to assist agricultural enterprises on any type of land, rather than only important agricultural lands?
Analysis: A special purpose revenue bond is a public financing tool that leverages the financial stability and rating of the government to obtain advantageous financing terms for private infrastructure. Several categories of Hawaii's economy already have the authority to obtain these bonds, this change would authorize agricultural enterprises on non-"important agricultural lands" to use this tool:
Under the Constitution, special purpose revenue bonds shall only be authorized or issued to finance facilities of or for, or to loan the proceeds of such bonds to assist, manufacturing, processing or industrial enterprises, certain not‑for‑profit private schools, utilities serving the general public, health care facilities provided to the general public by not‑for‑profit corporations, early childhood education and care facilities provided to the general public by not‑for‑profit corporations, agricultural enterprises serving important agricultural lands, or low and moderate income government housing programs.
Question 3: Relating to State Justices and Judges
Shall the mandatory retirement age for all state court justices and judges be increased from seventy to eighty years of age?
Analysis: Hawaii's Constitution requires judges to retire at age 70. This mandatory retirement age has recently operated to cause Chief Justice Moon and Justices Duffy and Acoba to retire from the Hawaii Supreme Court. Some view this requirement as being the only way to generate churn on the judiciary. Others view the mandatory retirement as forcing out jurists earlier than optimal. If this looks familiar, it is: the voters rejected this exact proposal in 2006 by a 58%-35% margin.
Question 4: Relating to Early Childhood Education
Shall the appropriation of public funds be permitted for the support or benefit of private early childhood education programs that shall not discriminate on the basis of race, religion, sex or ancestry, as provided by law?
Analysis: [Full disclosure: I am on the board of Good Beginnings Alliance - Children's Action Network which is funding advocacy and educational efforts in support of this amendment]. Hawaii's Constitution, Art. X, provides, in part: nor shall public funds be appropriated for the support or benefit of any sectarian or nonsectarian private educational institution. The Attorney General interpreted this provision as barring any use of appropriated funds to provide for pre-school. This provision would modify that bar and would permit the Legislature to appropriate funds to provide for early childhood education. More information here.
Question 5: Relating to Dams and Reservoirs
Shall the State be authorized to issue special purpose revenue bonds and use the proceeds from the bonds to offer loans to qualifying dam and reservoir owners to improve their facilities to protect public safety and provide significant benefits to the general public as important water sources?
Analysis: This failed to obtain the necessary number of "yes" votes in 2012 and the Legislature put this issue on the ballot again for 2014. Since the demise of the sugar industry in Hawaii, there are many legacy [read: old] irrigation facilities (reservoirs, dams, ditches) that require maintenance or improvement which appear beyond the current owner's ability to finance. This amendment would allow the State to authorize revenue bonds to help with that financing.
Stay tuned. Election day is about a month away. A popular adage here comes to mind: If you no vote, no grumble.
Of all of the impacts of HurricaneTropical Storm Iselle -- which whacked the Big Island but thankfully not the rest of the state last Friday -- the one that may be the longest lasting may be that the Democratic Party primary election for the U.S. Senate seat vacated by the death of Dan Inouye (filled in the interim by Brian Schatz, appointed by the Governor) will come down to one little district on the Big Island.
As long-time readers may know, from time-to-time we also cover election law topics, so on this beautiful post-storm and sunny Sunday, so we're going to diverge a bit from our usual subject, because along with our colleague Mark M. Murakami, we were curious about the law governing the situation where a natural disaster interferes with an election.
First, the tale of the tape. According to the latest reports, after the smoke cleared last night, "a mere 1,635 votes" separate Schatz from challenger Colleen Hanabusa, and all votes statewide have been counted, except for two in the Big Island's Puna district, in which up to 8,000 votes may be in play:Election officials still need to tabulate votes from two Puna polling sites that were closed as a result of roads damaged by Tropical Storm Iselle, affecting about 8,000 registered voters. Chief Elections Officer Scott Nago said ballots would be mailed to those who did not vote prior to Saturday by mail or walk-in and voters would have several days to return them.
Read the full story here.
Keep in mind two things. First, The Democratic Party primary is, in reality, the only election that matters since Hawaii really is "Blue" Hawaii, and the general election is mostly a formality in most races. It certainly will be so for the Senate seat, where there appears to be no serious GOP candidate. Second, Hawaii has an "open primary" system in which a voter may pull any party's ticket, regardless of registration, so all 8,000 votes may be in play. Unlikely, given Hawaii's dismal voter participation rate, but with everything on the line and with the state's entire political establishment now targeting Puna voters, there might be a higher rate than usual. And for those of you thinking, wait, these guys get to vote after they know how everyone else voted, and knowing they can determine the race?
Yes, yes they can.
Here's the Hawaii election statute that says that election officials have up to 21 days to conduct the election:§ 11-92.3 Consolidated precincts; natural disasters; postponement; absentee voting required; special elections. (a) In the event of a flood, tsunami, earthquake, volcanic eruption, high wind, or other natural disaster, occurring prior to an election, that makes a precinct inaccessible, the chief election officer or county clerk in the case of county elections may consolidate precincts within a representative district. If the extent of damage caused by any natural disaster is such that the ability of voters, in any precinct, district, or county, to exercise their right to vote is substantially impaired, the chief election officer or county clerk in the case of county elections may require the registered voters of the affected precinct to vote by absentee ballot pursuant to section 15-2.5 and may postpone the conducting of an election in the affected precinct for no more than twenty-one days; provided that any such postponement shall not affect the conduct of the election, tabulation, or distribution of results for those precincts, districts, or counties not designated for postponement. The chief election officer or county clerk in the case of county elections shall give notice of the consolidation, postponement, or requirement to vote by absentee ballot, in the affected county or precinct prior to the opening of the precinct polling place by whatever possible news or broadcast media are available. Precinct officials and workers affected by any consolidation shall not forfeit their pay.
We don't know yet how long state election officials will keep the window open, and there don't seem to be any standards in the statute or elsewhere to help them. So until we hear otherwise, we're assuming the campaign is back on for another three weeks. In other words, candidates, fire up the phone lines, but more importantly, get yourselves to the Big Island:
Roland Casamina, a Schatz campaign co-chairman, said personal calls to Puna voters will be critical.
"We really have to go and contact the people we know on that island," he said.
Former Gov. John Waihee said it's going to be an "on the ground" campaign with lots of hand-shaking.
"I think the senator will do very well there," he said.
Life imitates art yet again. Let the games begin.
Our partner, and fellow blogger, Robert Thomas highlights our recent success at the Hawaii Supreme Court in the case of Oahu Publications, Inc. v. Abercrombie. The case is a little more procedurally technical than my title, so if you want the background, check out Robert's post on the case (with links to briefs).
From the decision:
We consider whether the Intermediate Court of Appeals (ICA) erred in denying Oahu Publications’ request for appellate attorneys’ fees and costs. In brief summary, Oahu Publications filed the underlying suit against The Honorable Neil Abercrombie, in his official capacity as Governor of the State of Hawaii, under the Uniform Information Practices Act (UIPA), Hawaii Revised Statutes (HRS) Chapter 92F, seeking to obtain the list of nominees considered for a vacancy on the Hawaii Supreme Court. After the parties filed cross-motions for summary judgment, the circuit court entered summary judgment in favor of Oahu Publications, ordering disclosure of the nominees’ names. The circuit court also awarded Oahu Publications attorneys’ fees and costs pursuant to HRS § 92F-15(d) (1993).
The Governor appealed to the ICA only with regard to the circuit court’s award of attorneys’ fees and costs. After the parties had briefed the case, the ICA dismissed the appeal for lack of jurisdiction because of an error in the circuit court’s judgment. After the circuit court corrected the judgment, the Governor filed a second appeal. In the second appeal, the parties agreed to re-submit the briefs filed in the first appeal, with updated citations to the record on appeal. In a summary disposition order, a majority of the ICA affirmed the circuit court’s award of $69,027.06 in fees and costs to Oahu Publications, except for $564.60 of photocopying costs.
Oahu Publications then filed a request for appellate fees and costs in the ICA, which included fees accrued during both the first and second appeals. The ICA denied Oahu Publications’ request for fees incurred during the first appeal, concluding that the request was untimely under Hawaii Rules of Appellate Procedure (HRAP) Rule 39(d)(2) (2007). The ICA granted Oahu Publications’ request with respect to the second appeal in its entirety.
In its application, Oahu Publications presents a single question:Are attorneys’ fees incurred in an earlier phase of appellate litigation — which the ICA dismissed for lack of a final circuit court judgment, but which did not resolve the action — recoverable by the prevailing complainant under Haw. Rev. Stat. § 92F-15(d) after the ICA rules in its favor on the merits?
We hold that the ICA erred in not considering Oahu Publications’ request for fees and costs incurred during the first appeal. Oahu Publications was not a prevailing party for purposes of HRS § 92F-15(d) until after the second appeal was decided. Section 92F-15(d) provides that if the complainant prevails, the court shall assess reasonable attorneys’ fees and all other expenses. Although Oahu Publications prevailed in the circuit court and ultimately prevailed in the ICA, it was not a prevailing party for purposes of HRS § 92F-15(d) when the ICA dismissed the first appeal for lack of jurisdiction. Oahu Publications prevailed in the ICA only after the second appeal was decided.
Moreover, even assuming Oahu Publications could have filed a request for fees and costs pursuant to HRS § 92F-15(d) upon dismissal of the first appeal, the ICA erred in denying Oahu Publications’ request following resolution of the second appeal. Although HRAP Rule 39(d)(2) generally provides that “[a] request for fees and costs or necessary expenses must be filed . . . no later than 14 days” after the time for filing a motion for reconsideration has expired or such motion has been decided, it further provides that the appellate court “may” nevertheless consider such a request. Thus, the ICA had the discretion to consider an untimely request for fees and costs. Tortorello v. Tortorello, 113 Hawaii 432, 153 P.3d 1117 (2007). Given the express language of HRS § 92F-15(d), which provides that the court “shall assess against the agency reasonable attorney’s fees and all other expenses reasonably incurred in the litigation,” the ICA should have considered Oahu Publications’ request for fees incurred in the first appeal even if it was untimely. HRS § 92F-15(d) (emphases added).
We therefore vacate in part the ICA’s January 6, 2014, and January 24, 2014 orders, and vacate the ICA’s March 3, 2014 judgment on appeal.
Slip op. at 1-4 (footnote omitted).
Off we go, into the wild blue yonder?
Parasailing: A neat experience for a vacationer or an industry in need of regulation?
[Photo courtesy of wikiepedia commons].
The National Transportation Safety Board issued a report entitled Parasailing Safety today. The NTSB issued this report in response to several accidents on parasailing vessels.
Per the Executive Summary:
This special investigation report examines parasailing accidents in the United States and its territories, and identifies several areas where the risk associated with parasailing may be mitigated. Each year, an estimated 3 to 5 million people in the United States participate in parasailing; however, no federal regulations or guidelines establish specific training or certification for parasailing operators. There is no requirement for inspection of the parasailing equipment, and no requirement to suspend operations during inclement or unsuitable weather conditions. As this report will describe, passengers seeking to enjoy the thrill, adventure, and panoramic views of parasailing risk becoming accident victims. Due to the nature of parasailing, accidents usually result in either serious injury or death.
This investigation report strives to reduce the number of injuries and fatalities associated with parasailing through recommendations that will improve safety for parasailing passengers and operators. The report also examines operations, equipment, and the various dynamic forces that affect parasailing.
As a result of this investigation, the National Transportation Safety Board makes new safety recommendations to the United States Coast Guard, the Federal Aviation Administration, and the National Association of State Boating Law Administrators.
The NTSB made several recommendations to the regulating agencies. They are:
To the United States Coast Guard:
1. Implement a specialized license endorsement that all holders of a valid Coast Guard merchant mariner credential would be required to obtain before conducting parasailing operations. (M-14-11)
2. Incorporate by reference ASTM International’s parasailing standards to govern all parasailing operations. (M-14-12)
To the Federal Aviation Administration:
3. In accordance with 14 United States Code 141 and 49 United States Code 106(m), request assistance from the Coast Guard to enforce existing Federal Aviation Administration regulations applicable to parasailing operations. (A-14-064)
4. Review all existing regulations and special provisions that are intended to separate parasailing and aircraft operations, and take appropriate action to ensure that these directives are in harmony and consistently applied nationwide to reduce the risk of midair collisions. (A-14-065)
5. Work with the Coast Guard to resolve conflicts between (a) the existing Federal Aviation Administration special provision that gives aircraft right-of-way over parasailing vessels, and (b) the existing international and inland navigation rules that imply that parasailing vessels are restricted in their ability to maneuver and, therefore, should have the right-of-way. (A-14-066)
To the National Association of State Boating Law Administrators:
6. Draft a model act that may be used by your membership as a framework for state legislation to reduce the risk associated with parasailing. (M-14-13).
One interesting finding of the NTSB. Knots, including the ubiquitous bowline, make a line (rope) weaker. Bowline is way easier to tie than the sheepshank, as Richard Dreyfuss well knows:
In a classic admiralty, multi-country, CivPro wonky fashion, the Second Circuit Court of Appeals just issued a decision analyzing the basic jurisdiction of the federal courts to enforce foreign judgments arising from admiralty cases.
The case is D'amico Dry Limited v. Priemera Maritime (Hellas) Ltd., et al. and the opinion can be found here.
By way of jurisdictional background, the federal courts have jurisdiction to hear admiralty cases pursuant to 28 U.S.C. 1333 which provides:
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize.
A vessel operator sought to hedge its risks when its vessels were unutilized by selling its routes as an option or futures contract. It sold such a contract to a shipper and the shipper defaulted on the obligation to pay.
Vessel operator brought a claim in England and its claim was heard in commercial court, not admiralty court. Because these futures contracts do not involve the actual shipment of goods, English courts do not consider the contracts to be maritime in nature. The operator sought to enforce the judgment in the United States and the districtu court dismissed its claim because the claim was not maritime in nature.
The Second Circuit found the claim to be maritime in nature and reversed the trial court's decision.
The Court found that whether a claim was maritime in nature was the appropriate inquiry for jurisdiction and not which court issued the judgment/award. In the modern international shipping world, foreign judgments are becoming commonplace and this is an important decision to help practitioners discern jurisdiction for enforcement of those judgments/awards.
The Washington Post ran an exclusive article this week reporting that President Obama is about to expand the Pacific Remote Islands Marine National Monument purportedly creating the world's largest marine sanctuary.
Per the article:
Under the proposal, according to two independent analyses, the Pacific Remote Islands Marine National Monument would be expanded from almost 87,000 square miles to nearly 782,000 square miles — all of it adjacent to seven islands and atolls controlled by the United States. The designation would include waters up to 200 nautical miles offshore from the territories.
There is an existing Pacific Remote Islands National Monument that was created by President Bush. His proclamation invoked the Antiquities Act to create the monument. I expect the current one invoked the same authority.
More after the proclamation hits the streets.
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