Trends in Hawaii Jurisprudence

• Publication year: 2014

Trends in Hawaii Jurisprudence

by Carol K. Muranaka

At the HSBA Appellate Section meeting in April 2014, Simeon R. Acoba, Jr., former Associate Justice of the Hawaii Supreme Court, spoke about the jurisprudential trends of the Court.¹ Justice Acoba indicated that his discussion represented his views only.

Data about the Supreme Court

The trend of the Court is to accept more applications for a writ of certiorari. The applications accepted are as follows:²

Fiscal year 2011:

22 certiorari applications accepted

Fiscal year 2012:

45 certiorari applications accepted

Fiscal year 2013:

68 certiorari applications accepted

Fiscal year 2014:

44 certiorari applications accepted thus far

Similarly, there have been more oral arguments and more published opinions.

Fiscal year 2012: 46 published opinions

Fiscal year 2013: 35 published opinions

Fiscal year 2014: 68 (12 in January 2014; 28 in Feb. 2014)

The number of transfer applications that have been accepted are as follows:

Fiscal year 2011: 7 transfers

Fiscal year 2012: 5 transfers

Fiscal year 2013: 9 transfers

Fiscal year 2014: 3 transfers thus far

Although the criteria for a writ is to show "grave errors of law or of fact" or "obvious inconsistencies in the decision of the intermediate appellate court" with its own decision or decisions of relevant courts, the Court is not bound by the statutory criteria for an application. It is within the discretion of the Court to accept a writ of certiorari.³

The Court has dealt with two cases involving certified questions thus far during the fiscal year 2014. In Villon v. Marriott Hotel Servs. Inc., 130 Haw. 130, 306 P.3d 175 (2013), the question was: may food or beverage service employees of a hotel or restaurant bring a claim against their employer based on an alleged violation of Haw. Rev. Stat. § 481B-14 by invoking Haw. Rev. Stat. §§ 388-6, 388-10, and 388-11 and without invoking Haw. Rev. Stat. §§ 480-2 or 480-13? The Court answered this question in the affirmative.⁴ In Nautilus Ins. Co. v. Lexington Ins. Co, 2014 WL 560805 (Haw. Feb. 13, 2014), one of the questions of law certified to the Court from the Ninth Circuit Court of Appeals was whether an insurer may look to another insurer's policy in order to disclaim the duty to defend, where the complaint in the underlying lawsuit alleges facts within coverage. The court stated that unless another insurer's policy is specifically named in the first insurer's policy, an insurer may not look to another insurer's policy to disclaim the duty to defend.

Right of Privacy

Justice Acoba focused on three areas that have grown in overall significance and will engage the court in the future. One of the three areas is the right of privacy as it impacts both criminal and civil cases.

In criminal cases, the test used by the United States Supreme Court in determining one's reasonable expectation of privacy is twofold. State v. Kaaheena, 59 Haw. 23, 27, 575 P.2d 462, 466 (1978) ((citing Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)). First, one must exhibit an actual, subjective expectation of privacy. Id. Second, that expectation of privacy must be one that society would recognize as objectively reasonable. Id. at 27-28.

The expectation of privacy test may be outmoded today because of the necessity to disclose personal information to third parties, said Justice Acoba. For example, in U.S. v. Jones, 132 S.Ct. 945 (2012), Justice Sotomayor, in concurrence, noted that the expectation of privacy test which indicated that disclosure of information to third persons was not protected was unworkable today. 132 S.Ct. at 957 (2012) (Sotomayor, J., concurring). She explained that "[p]eople disclose the phone numbers they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers[.]" Id. Accordingly, she concluded that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Id.

In a 3-2 decision in Part II of the opinion in State v. Walton, 2014 WL 594105 (Haw. Feb. 14, 2014), the Hawaii Supreme Court indicated that in some cases, disclosure to third persons should no longer disqualify a right to privacy, relying on Article I, Section 7 of the Hawaii Constitution.⁵ 2014 WL 594105, at *27. The majority said that "the protection afforded to information disclosed to a third party must be determined by examining whether an individual reasonably expected such information to remain private as to others and whether society would view such expectation as reasonable." Id. The Court explained that "an expectation of privacy, even though extended to matters exposed to third persons, would be viewed as reasonable by society, where such exposure is inevitable and inescapable in the conduct of the necessary affairs of life." Id. at *34.

In Cohen v. Ayabe, 2014 WL 783132, at *1 (Haw. Feb. 27, 2014), the Court held that the privacy provision of the Hawaii Constitution, Article I, Section 6⁶protected Cohan's health information against disclosure outside the underlying litigation. The majority in Cohen stated that "[t]he very purpose of disclosing [the petitioner's] health information in discovery [was] to resolve the underlying dispute. To allow this information to be...