State v. Milne. ICA mem. op., filed 06/26/2020. ( 2021 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
23-JUN-2021
10:56 AM
Dkt. 6 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellant,
vs.
NOGUCHI MILNE,
Petitioner/Defendant-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 1FFC-XX-XXXXXXX)
JUNE 23, 2021
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
In Count 1 of a complaint filed in the Family Court of the
First Circuit (“family court”), the State of Hawaiʻi (“the
State”) charged Noguchi Milne (“Milne”) with abuse of family or
household member, in violation of Hawaiʻi Revised Statutes
(“HRS”) § 709-906(1) and (5) (2014), against Complaining Witness
1
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1 (“CW1”).1 Count 2 charged Milne with third degree assault in
violation of HRS § 707-712(1)(a) (2014) against Complaining
Witness 2 (“CW2”).2
The family court granted Milne’s oral motion to dismiss
Count 2, concluding it lacked subject matter jurisdiction over
that count. On appeal, the Intermediate Court of Appeals
(“ICA”) concluded the family court erred in dismissing Count 2
because the family court had concurrent subject matter
jurisdiction over the charge based on HRS § 571-14(b) (2014).
The ICA ordered that Count 2 be remanded to the family court for
further proceedings consistent with its memorandum opinion.
On certiorari, Milne concedes that the family court had
concurrent jurisdiction over Count 2. Milne argues, however,
that the family court did not dismiss Count 2 based on a lack of
subject matter jurisdiction. He maintains the family court had
1 HRS § 709-906 states in relevant part:
(1) It shall be unlawful for any person, singly or in
concert, to physically abuse a family or household member
or to refuse compliance with the lawful order of a police
officer under subsection (4). The police, in investigating
any complaint of abuse of a family or household member,
upon request, may transport the abused person to a hospital
or safe shelter.
. . . .
(5) Abuse of a family or household member and refusal to
comply with the lawful order of a police officer under
subsection (4) are misdemeanors[.]
2 HRS § 707-712(1)(a) states in relevant part: “(1) A person commits the
offense of assault in the third degree if the person: (a) Intentionally,
knowingly, or recklessly causes bodily injury to another person[.]”
2
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discretion to decline the exercise of its concurrent
jurisdiction over Count 2.
For the reasons explained below, we hold as follows:
(1) the ICA was correct in ruling that the family court
dismissed Count 2 for lack of subject matter jurisdiction and
erred by doing so, as HRS § 571-14(b) provided the family court
with concurrent subject matter jurisdiction over Count 2; and
(2) the family court continues to have subject matter
jurisdiction over Count 2 despite the dismissal of Count 1 with
prejudice, and it is for the family court to address Count 2 on
remand.
II. Background
A. Factual and procedural background
1. Family court proceedings
On June 18, 2019, Milne was charged in the family court via
complaint for events allegedly occurring on June 16, 2019, as
follows: (1) Count 1, with respect to CW1, his girlfriend, abuse
of family or household members in violation of HRS § 709-906(1)
and (5); and (2) Count 2, with respect to CW2, CW1’s father,
third degree assault in violation of HRS § 707-712(1)(a).
At a trial call on July 22, 2019, the State requested a
continuance because the complaining witnesses were not present
3
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despite being subpoenaed. The family court3 orally granted the
continuance over Milne’s objection. Milne then orally moved to
dismiss Count 2 for lack of subject matter jurisdiction,
asserting that the family court lacked subject matter
jurisdiction because although CW1 was Milne’s girlfriend, CW2,
CW1’s father, did not live or reside in the same household as
Milne. The State requested that the defense submit a written
motion so it could appropriately respond, but the family court
asked the State to “take a look at 571-14”:
THE COURT: Can you take a look at 571-14, counsel? . . . .
. . . .
THE COURT: So look at subsection []((b),[4] counsel.
[Deputy prosecuting attorney (“DPA”)]: And, your honor,
under section [](b) the –- the court would have concurrent
jurisdiction over the Assault Third given the –- it’d be
one of the offenses in this case would be under the
jurisdiction of Family Court, which would be the Count 1.
THE COURT: [Deputy public defender (“DPD”)], your response
to that, under subsection [](b)?
[DPD]: Your honor, and my response to that is that under
subsection [](b) is that that’s if it was as to pertaining
to the same complaining witness. However, in this matter
the two different counts are represented by offenses, again
two different complaining witnesses. Therefore the court
does not have jurisdiction over Count 2 relating to the
second complaining witness.
THE COURT: And where do you get the limiting language that
it has to relate to the same complaining witness?
[DPD]: Your honor, that –- I don’t –- there is no limiting
language but that is the defense’s argument.
3 Unless otherwise indicated, the Honorable Kevin A. Souza presided.
4 HRS § 571-14(b) provides:
(b) The court shall have concurrent jurisdiction with the
district court over violations of sections 707-712, 707-
717, 707-722, 708-822, 708-823, 710-1010.5, 711-1106, and
711-1106.5 when multiple offenses are charged through
complaint or indictment and at least one offense is a
violation of an order issued pursuant to chapter 586 or a
violation of section 709-906.
4
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THE COURT: [DPA]?
[DPA]: And, your honor, as the court stated there is no
limiting language under 571-14[](b) as to limit or to
distinguish that it had to be the same complaining witness.
Just that one of the offenses charged through the complaint
would be pursuant to chapter 586 (indiscernible).
THE COURT: All right. And the complaining witness in
Count 2, again, the representation of the defense is that
the complaining witness is girlfriend’s father?
[DPA]: That’s correct. That’s accurate.
The family court then orally granted Milne’s motion,
stating:
THE COURT: All right. The court reads 571-14 as
permissive and not mandatory as to section (b), and because
the complaining witness in Count 2 is not a family or
household member to Mr. Milne, the court is, based on the
representations of counsel, going to be dismissing Count 2
without prejudice and the State would be free to refile
Count 2 in District Court as to that complaining witness.
All right?
The family court filed its written order dismissing Count 2
on July 26, 2019 (“dismissal order”), which stated in relevant
part:
After consideration of the arguments of counsels,
this Court granted the Defendant’s oral motion to dismiss
Count II for lack of Subject Matter Jurisdiction, and it is
further ordered that Count II be dismissed without
prejudice.
IT IS HEREBY ORDERED that the Defendant’s Oral Motion
to dismiss Count II is GRANTED. Furthermore, Count II is
dismissed without prejudice for lack of Subject Matter
Jurisdiction.
The State appealed the Count 2 dismissal order to the ICA
on August 23, 2019. At a September 16, 2019 trial call, CW1 and
two other civilian witnesses, who were subpoenaed, failed to
appear in court. The State orally requested another
continuance. Milne objected and orally moved to dismiss Count 1
5
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with prejudice. The family court5 denied the request for a
continuance and granted Milne’s oral motion to dismiss Count 1
with prejudice.
Then, on November 22, 2019, the family court entered
findings of fact and conclusions of law (“11/22/19 FOFs/COLs”).
In its 11/22/19 FOFs/COLs, the family court maintained that even
if it had jurisdiction over Count 2, the dismissal of Count 1
with prejudice rendered the State’s appeal moot. It also opined
that even if the State’s appeal was successful, Count 2 should
no longer be prosecuted in the family court, as it was not
coupled with an offense over which the family court had
exclusive, original jurisdiction. The family court also posited
that the State’s only option going forward was to proceed with
Count 2 in the district court, as it had ordered in the
dismissal order. It also maintained that any other outcome
“would lead to the tortuous result of the Family Court being
forced to proceed to trial on a single charge (Assault 3) over
which it does not have exclusive, original jurisdiction – and
between two parties who are not family or household members.”
The family court contended that the State’s ongoing practice of
using HRS § 571-14(b) to “bootstrap” additional cases involving
non-family members threatened to transform the family court from
5 The Honorable Brian A. Costa presided over the September 16, 2019 trial
call.
(continued . . .)
6
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a court of limited jurisdiction into one of general
jurisdiction.6
2. ICA proceedings
On appeal to the ICA, in summary, the State argued that the
family court erred as a matter of law by dismissing Count 2 for
lack of subject matter jurisdiction. In response, Milne
conceded the family court had concurrent jurisdiction over Count
2, but also asserted it was only as long as Count 1 was pending.
Milne also contended the family court’s decision to decline
jurisdiction should be reviewed under the abuse of discretion
standard, citing to NB v. GA, 133 Hawaiʻi 436, 329 P.3d 341 (App.
6 The ICA did not address the merits of the family court’s 11/22/19
FOFs/COLs on the grounds the family court lacked jurisdiction to enter them.
State v. Milne, CAAP-XX-XXXXXXX, 2020 WL 6375352 (App. Oct. 30, 2020) (mem.),
at 7. The ICA noted that when an adult is charged with a crime, the Hawaiʻi
Rules of Penal Procedure (“HRPP”) govern. Milne, mem. op. at 7 n.9 (citing
State v. Gonsales, 91 Hawaiʻi 446, 449, 984 P.2d 1272, 1275 (1999); Hawaiʻi
Family Court Rules (“HFCR”) Rule 81(c) (2015) (“Cases for adults charged with
the commission of a crime coming within the jurisdiction of the family courts
shall be governed by the [HRPP].”)). The ICA cited to HRPP Rule 23(c), which
provides for a court to make findings “[i]n a case tried without a jury” and
if requested, to make special findings “at any time prior to sentence.” Id.The ICA ruled HRPP Rule 23(c) did not authorize the 11/22/19 FOFs/COLs
relating to the dismissal order; in short, the ICA concluded the family court
did not have jurisdiction to enter the 11/22/19 FOFs/COLs related to the
dismissal order, citing to HRPP Rule 23(c). Id. HRPP Rule 23(c), however,
is part of the rule entitled “Trial by Jury or by the Court,” and does not
govern. Rather, as our family courts are a division of our circuit courts,
see HRS § 571-3 (2006) (“The family courts shall be divisions of the circuit
courts of the State and shall not be deemed to be other courts as that term
is used in the State Constitution.”), HRPP Rule 44A(a) (2011), pertaining to
“Settlement of Findings of Fact, Conclusions of Law, and Order; Entry of
Order” in the circuit courts, governs here. There has been no separate
appeal of the 11/22/19 FOFs/COLs, and, as the ICA noted, none of the ICA
briefs, all of which were filed after the 11/22/19 FOFs/COLs, mention the
11/22/19 FOFs/COLs. Id. We address the 11/22/19 FOFs/COLs later in this
opinion.
(continued . . .)
7
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2014).7 Milne asserted the family court had actually properly
exercised its discretion to dismiss Count 2.
In its October 30, 2020 amended memorandum opinion, the ICA
vacated the dismissal order, holding the family court erred by
dismissing Count 2 for lack of subject matter jurisdiction.
Milne, mem. op. at 6, 8. The ICA noted Milne now appropriately
conceded on appeal that the family court “had concurrent subject
matter jurisdiction over Count 2 as long as Count 1 was
pending.” Milne, mem. op. at 5. The ICA explained that under
the plain language of HRS § 571-14(b), the family court has
concurrent jurisdiction with the district court over violations
of specific offenses, including HRS § 707-712 (third degree
assault), when multiple offenses are charged in a complaint or
indictment and at least one offense is, inter alia, a violation
of HRS § 709-906 (abuse of family or household members). Id.
The ICA reasoned that even if there was an ambiguity as to
whether HRS § 571-14(b) limits charges of multiple offenses to
7 This case stated in relevant part:
A family court’s decision to decline jurisdiction is
reviewed for abuse of discretion. See Fisher v. Fisher,
111 Hawaiʻi 41, 46, 137 P.3d 355, 360 (2006) (“‘[An
appellate court] will not disturb the family court’s
decisions on appeal unless the family court disregarded
rules or principles of law or practice to the substantial
detriment of a party litigant and its decision clearly
exceeded the bounds of reason.’” (quoting In re Doe, 95
Hawaiʻi 183, 189–90, 20 P.3d 616, 622–23 (2001))).
NB, 133 Hawaiʻi at 444, 329 P.3d at 349.
8
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the same complaining witness, its legislative history reflected
otherwise. Id.; see Milne, mem. op. at 5-6; S. Stand. Comm.
Rep. No. 2649, in 1998 Senate Journal, at 1071 (“For example, if
a person assaults another individual while violating a family
court restraining order, under current law the [] two violations
of law would be heard in separate courts. Your Committee
further finds that concurrent jurisdiction will make the
judicial process in these instances more efficient and
effective.”). The ICA stated Act 64 of 1998, which added
subsection (b) to HRS § 571-14, also showed the legislature
intended to provide for concurrent jurisdiction, even when the
multiple charged offenses involved different complaining
witnesses. Milne, mem. op. at 5-6.8
The ICA noted Milne made speculative arguments on appeal as
to why the family court allegedly decided not to exercise its
concurrent jurisdiction, based on his assertion of different
8 The ICA also cited another committee report in support:
Your Committee finds that one incident can give rise
to several different charges. Some of these charges, like
a violation of a family court restraining order or
misdemeanor abuse of family and household member, fall
under the jurisdiction of the family court, while others
may fall under the jurisdiction of the circuit or district
courts. Current law prevents the State from bringing all
the related charges at one time before one court.
This bill addresses that problem by giving the
circuit, district, and family courts concurrent
jurisdictions over certain offenses[.]
Milne, mem. op. at 6 n.8 (quoting H. Stand. Comm. Rep. No. 1055-98, in 1998
House Journal, at 1482).
9
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scenarios that could occur and purported inferences that had no
basis on the record. Id.
The ICA filed its judgment on appeal on November 12, 2020,
remanding the case to the family court for further proceedings
consistent with its amended memorandum opinion.
3. Supreme court certiorari application
On certiorari, Milne presents the following question:
“Whether the ICA committed grave error in concluding that the
Family Court had jurisdiction over Count 2.” Milne repeats his
arguments made to the ICA. The State did not respond.
III. Standards of review
A. Statutory interpretation
Statutory interpretation is a question of law
reviewable de novo. In reviewing questions of statutory
interpretation, we are guided by the following principles:
First, the fundamental starting point for
statutory-interpretation is the language of the
statute itself. Second, where the statutory language
is plain and unambiguous, our sole duty is to give
effect to its plain and obvious meaning. Third,
implicit in the task of statutory construction is our
foremost obligation to ascertain and give effect to
the intention of the legislature, which is to be
obtained primarily from the language contained in the
statute itself. Fourth, when there is doubt,
doubleness of meaning, or indistinctiveness or
uncertainty of an expression used in a statute, an
ambiguity exists.
State v. Castillon, 144 Hawaiʻi 406, 411, 443 P.3d 98, 103 (2019)
(cleaned up).
10
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B. Subject matter jurisdiction
“Whether a court possesses subject matter jurisdiction is a
question of law reviewable de novo.” Kakinami v. Kakinami, 127
Hawaiʻi 126, 136, 276 P.3d 695, 705 (2012).
IV. Discussion
A. The ICA was correct in ruling that the family court
dismissed Count 2 for lack of subject matter jurisdiction
and erred by doing so, as HRS § 571-14(b) provided the
family court with concurrent subject matter jurisdiction
over Count 2
At the ICA and again at this court, Milne concedes that the
family court had concurrent jurisdiction over Count 2 based on
HRS § 571-14(b). The ICA correctly held that the family court
had concurrent jurisdiction over Count 2. HRS § 571-14(b)
states:
§ 571-14. Jurisdiction; adults
. . . .
(b) The court shall have concurrent jurisdiction with the
district court over violations of sections 707-712, 707-
717, 707-722, 708-822, 708-823, 710-1010.5, 711-1106, and
711-1106.5 when multiple offenses are charged through
complaint or indictment and at least one offense is a
violation of an order issued pursuant to chapter 586 or a
violation of section 709-906.
The plain language of HRS § 571-14(b) provides the family
court with “concurrent jurisdiction with the district court over
violations of section[] 707-712[] . . . when multiple offenses
are charged through complaint” and “at least one offense is a
violation . . . of section 709-906.” Here, Milne was charged
via complaint with a violation of HRS § 709-906 in Count 1.
11
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Thus, based on the plain language of the statute, the family
court had concurrent jurisdiction with the district court over
Count 2 charging a violation of HRS 707-712.
Because the plain language of HRS § 571-14(b) is
unambiguous, we need not turn to the next step of statutory
interpretation, which is to ascertain and give effect to the
intent of the legislature. But as the ICA explained, even if
the statute was ambiguous, the legislative history of
HRS § 571-14(b) confirms legislative intent to provide for
concurrent jurisdiction when charged offenses involved different
individuals. See Milne, mem. op. at 5-6.
Milne repeats his argument, however, that based on oral
statements made before its ruling, the family court did not
actually dismiss Count 2 based on a lack of subject matter
jurisdiction. Milne asserts the family court acknowledged it
had concurrent subject matter jurisdiction but exercised
discretion to decline concurrent subject matter jurisdiction.
Milne’s assertions are devoid of merit. The family court
expressly stated it was dismissing Count 2 because the
complaining witness was not the same person as that for the
abuse charge in Count 1. Also, as the ICA noted, Milne makes
speculative arguments with no basis in the record as to why the
family court allegedly decided not to exercise its concurrent
12
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jurisdiction. But Milne’s argument is problematic for
additional reasons.
First, Milne suggests the family court had discretion to
dismiss the concurrent charge and require that it be refiled in
district court. Subject matter jurisdiction, however, is a
matter of law, not a matter of discretion. Pursuant to article
VI, section 1 of the Hawaiʻi Constitution, our state courts “have
original and appellate jurisdiction as provided by law[.]”
Through HRS § 571-14(b), the legislature provided our family
courts with concurrent jurisdiction over certain matters.
HRS § 571-8.5(a)(3) (2018) provides that a family court judge
may “[m]ake and issue all orders and writs necessary or
appropriate in aid of their original jurisdiction.” (Emphasis
added.) And, in general, “[i]t is a judge’s duty to decide all
cases within [the judge’s] jurisdiction that are brought before
[the judge.]” Pierson v. Ray, 386 U.S. 547, 554 (1967)
(emphasis added).9
Second, contrary to Milne’s assertion that the family court
exercised discretion to dismiss Count 2, the family court
expressly stated in its dismissal order that it dismissed Count
2 for lack of subject matter jurisdiction. As explained, this
written ruling was actually consistent with the family court’s
9 See infra note 11 for an exception to the general rule.
13
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oral ruling. But even if the written order had been
inconsistent with the oral ruling, as the ICA has repeatedly
stated, a trial court’s written order controls over its oral
statements.10 On this point, we agree with authority cited by
the ICA in its rulings that a judge’s written order generally
controls over its oral statements. See Nat’l Home Centers, Inc.
v. Coleman, 257 S.W.3d 862, 863 (Ark. 2007) (“If a trial court’s
ruling from the bench is not reduced to writing and filed of
record, it is free to alter its decision upon further
consideration of the matter. Simply put, the written order
controls.” (cleaned up)); Owens v. Magill, 419 S.E.2d 786, 791
(S.C. 1992) (holding that a judge was not bound by prior oral
ruling and could issue written order which conflicted with prior
oral ruling); Ladd by Ladd v. Honda Motor Co., Ltd., 939 S.W.2d
83, 104 (Tenn. Ct. App. 1996) (“A court speaks only through its
written orders.”); Ratcliff v. Cyrus, 544 S.E.2d 93, 96 n.14
(Va. 2001) (“[W]hen presented with conflicting signals from a
circuit court, the law favors written orders over oral
statements.”).
10 See, e.g., State v. Zhang, CAAP-XX-XXXXXXX, 2020 WL 733971, at *3 (App.
Feb. 13, 2020) (SDO) (“The written order controls over the oral statements
the District Court made at the March 13, 2019 hearing.” (citing Kono v.
Abercrombie, CAAP-XX-XXXXXXX, 2013 WL 1758960, at *4 (App. Apr. 24, 2013)
(mem.)).
(continued . . .)
14
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The family court’s written order expressly dismissed Count
2 for an alleged lack of subject matter jurisdiction; this order
controls. For this reason also, we reject Milne’s argument that
the family court declined to exercise concurrent jurisdiction
based on other considerations.11
Hence, the ICA correctly ruled that the family court
dismissed Count 2 for lack of subject matter jurisdiction and
erred by doing so.
B. The family court continues to have subject matter
jurisdiction over Count 2 despite the dismissal of Count 1
with prejudice, and it is for the family court to address
Count 2 on remand
In its amended memorandum opinion, the ICA indicated Milne
had properly conceded on appeal that the family court “had
concurrent subject matter jurisdiction over Count 2 as long as
Count 1 was pending.” Milne, mem. op. at 5 (emphasis added).
The ICA’s judgment on appeal then remanded Count 2 to the family
court for further proceedings consistent with its memorandum
opinion.
11 Also, as the ICA reasoned, NB, the case Milne cites in support of his
argument that the abuse of discretion standard of review applies, is
distinguishable. In NB, the ICA vacated the family court’s decision to
decline jurisdiction based on its lack of findings on the statutory factors
to determine whether Hawaiʻi was an inconvenient forum pursuant to
HRS § 583A-207 (2016), which reads in relevant part: “A court of this State
which has jurisdiction under this chapter to make a child-custody
determination may decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the circumstances and that
a court of another state is a more appropriate forum.” 133 Hawaiʻi at 443-44,
329 P.3d at 348-49. Here, not only did the family court’s written dismissal
order state it dismissed Count 2 for lack of subject matter jurisdiction,
HRS § 571-14(b) does not give the family court discretion to decline
jurisdiction, unlike the statute at issue in NB.
15
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As noted, however, after the State’s August 23, 2019 notice
of appeal to the ICA of the Count 2 dismissal order, the family
court granted Milne’s motion to dismiss Count 1 with prejudice.
It is unclear whether the ICA agreed with Milne’s concession on
appeal that the family court had concurrent subject matter
jurisdiction over Count 2 as long as Count 1 was pending, and
Count 1 is no longer pending.
Also after the notice of appeal, the family court entered
its 11/22/19 FOFs/COLs stating its apparent positions with
respect to Count 2. Based on the importance of the issues
presented in the 11/22/19 FOFs/COLs, pursuant to our supervisory
powers under HRS § 602-4 (2016),12 we provide guidance to the
family court on remand.
First, in its 11/22/19 FOFs/COLs, the family court
maintained that even assuming it had jurisdiction over Count 2,
the dismissal of Count 1 with prejudice rendered the State’s
appeal moot. It can be inferred from this that the family court
is under the impression that its subject matter jurisdiction
over Count 2 disappeared with the dismissal of Count 1. The
family court’s concurrent subject matter jurisdiction over Count
2 did not disappear, however, when Count 1 was dismissed.
12 HRS § 602-4 provides, “Superintendence of inferior courts. The supreme
court shall have the general superintendence of all courts of inferior
jurisdiction to prevent and correct errors and abuses therein where no other
remedy is expressly provided by law.”
16
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Under HRS § 571-14(b), the family court’s concurrent
subject matter jurisdiction over Count 2 was invoked when
assault was charged along with the HRS § 709-906 abuse charge in
Count 1. See HRS § 571-14(b) (“The court shall have concurrent
jurisdiction with the district court over [a] violation[] of
section[] 707-712 . . . when multiple offenses are charged
through complaint [] and at least one offense is . . . a
violation of section 709-906.” (emphasis added)).
HRS § 571-14(b) does not require the abuse or restraining order
charge continue to be pending for subject matter jurisdiction to
continue over a concurrent charge. Nothing in the legislative
history of Act 64 of 1998 indicates the legislature so intended,
and such a result would be absurd. If subject matter
jurisdiction over a concurrent charge disappears upon dismissal
of the abuse or restraining order charge, double jeopardy issues
would arise for the concurrent charge if a judge dismisses the
abuse or restraining order charge after commencement of trial.
In addition, if dismissal of or judgment upon a plea to an abuse
or restraining order charge eliminated family court jurisdiction
over a concurrent charge, statute of limitations issues could
arise for refiling in district court. In summary, despite the
17
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family court’s dismissal of Count 1, its subject matter
jurisdiction over Count 2 continues.13
Second, the family court indicated that if the State’s
appeal was successful, Count 2 should no longer be prosecuted in
the family court, as it would no longer be coupled with an
offense over which the family court had “exclusive,” original
jurisdiction. Contrary to the family court’s statement, after
Act 64 of 1998, the family court no longer has “exclusive”
original jurisdiction over HRS § 709-906 charges in certain
circumstances, such as those here. Act 64 of 1998 amended
HRS § 571-14 to add the underlined language:
(a) Except as provided in sections 603-21.5 and 604-8, the
court shall have exclusive original jurisdiction:
(1) To try any offense committed against a child by the
child’s parent or guardian or by any other person having the
child’s legal or physical custody, and any violation of
section 707-726, 707-727, 709-902, 709-903, 709-903.5,
709-904, 709-905, 709-906, or 302A-1135, whether or not
included in other provisions of this paragraph or paragraph
(2)[.]
1998 Haw. Sess. Laws Act 64, § 1 at 143. The amendments to HRS
§§ 603-21.5 and 604-8 reciprocally provided the circuit and
district courts with concurrent jurisdiction with the family
courts over crimes over which the family courts previously had
13 Also, even if the dismissal of Count 1 had rendered the appeal of the
Count 2 dismissal moot, exceptions to the mootness doctrine would most likely
have applied. See State v. Tui, 138 Hawaiʻi 462, 467-68, 382 P.3d 274, 279-80
(2016).
(continued . . .)
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exclusive original jurisdiction, when concurrently charged with
certain crimes in those courts.14
Third, the family also stated in its 11/22/19 FOFs/COLs
that the State’s only option going forward was to proceed with
Count 2 in the district court, as it had ordered in the
dismissal order. The legislature, however, promulgated Act 64
of 1998 to further judicial efficiency. See S. Stand. Comm.
Rep. No. 2649, in 1998 Senate Journal, at 1071 (“Your Committee
14 In relevant part, Act 64 of 1998 amended HRS § 603-21.5 to add the
underlined language:
(b) The several circuit courts shall have concurrent
jurisdiction with the family court over:
(1) Any felony under section 571-14, violation of an
order issued pursuant to chapter 586, or a violation
of section 709-906 when multiple offenses are charged
through complaint or indictment and at least one
other offense is a criminal offense under subsection
(a)(1); and
(2) Any felony under section 571-14 when multiple
offenses are charged through complaint or indictment
and at least one other offense is a violation of an
order issued pursuant to chapter 586, a violation of
section 709-906, or a misdemeanor under the
jurisdiction of section 604-8.
1998 Haw. Sess. Laws Act 64, § 1 at 143-44.
In relevant part, Act 64 of 1998 amended HRS § 604-8 to add the
underlined language:
(b) The district court shall have concurrent jurisdiction
with the family court of any violation of an order issued
pursuant to chapter 586 or any violation of section 709-906
when multiple offenses are charged through complaint or
indictment and at least one other offense is a criminal
offense within the jurisdiction of the district courts.
1998 Haw. Sess. Laws Act 64, § 3 at 144.
The ICA erred to the extent that it stated the circuit court did not
get concurrent jurisdiction over the specified offenses in the family and
district courts. See Milne, mem. op. at 6 n.8.
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further finds that concurrent jurisdiction will make the
judicial process [] more efficient and effective.”). Requiring
Count 2 to be refiled in district court is not only inefficient,
but as noted, a court has a duty to decide all cases within its
jurisdiction that are brought before it.
Fourth, according to the family court, any outcome other
than requiring that Count 2 be dismissed then refiled in the
district court “would lead to the tortuous result of the Family
Court being forced to proceed to trial on a single charge
(Assault 3) over which it does not have exclusive, original
jurisdiction – and between two parties who are not family or
household members.” The family court objects to the State’s
reliance on HRS § 571-14(b) to allegedly “bootstrap” additional
cases involving non-family members, which it apparently believes
threatens to transform the family court from a court of limited
jurisdiction into a court of general jurisdiction.
Contrary to the family court’s statements, however, it is
appropriate for our family courts to address various charges
arising out of the same domestic violence event, even if the
complaining witness is not a family or household member or
petitioner. Family court judges are knowledgeable about and
receive specialized training on various issues and concerns
arising out of domestic violence. In addition, Act 64 of 1998,
of which the amendment to HRS § 571-14(b) is only a part,
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greatly improved inefficiencies and redundancies that previously
existed for prosecutors, defendants, witnesses, and the courts.
Before Act 64 of 1998, there were many situations in which
charges involving different victims in the same domestic
violence event had to be filed separately in circuit, family, or
district courts due to their respective jurisdictional
limitations. This meant that different prosecutors and courts
would be required to address the same event, while defendants,
complaining witnesses, and other eyewitnesses,15 including law
enforcement, could be subpoenaed to appear in different courts
on different days for charges arising out of the same event.
Due to the confusing nature of the charges and courts, and due
to impracticalities, some charges were therefore dismissed and
some possible charges were never brought. And contrary to the
family court’s apparent belief that Act 64 of 1998 only requires
the family court to address additional charges over which it
previously lacked jurisdiction, Act 64 of 1998 also allowed
criminal charges that were previously required to be brought in
family court to be brought in circuit and district courts.16
This means that the circuit and district courts also now preside
15 The “complaining witness” in one court could become an “eyewitness” in
another court.
16 See supra note 14.
(continued . . .)
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over charges that previously would have been handled by the
family courts.17
Therefore, under the circumstances of this case, it is for
the family court to address Count 2 upon remand.18
V. Conclusion
For the reasons stated above, the ICA’s judgment on appeal
is affirmed, as clarified by this opinion.
William H. Jameson, Jr., /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Chad M. Kumagai
(on the briefs), /s/ Sabrina S. McKenna
for respondent
/s/ Michael D. Wilson
/s/ Todd W. Eddins
17 For example, the ICA previously ruled in State v. Dela Cruz, CAAP-11-
0000367, 2013 WL 275547, at *1 (App. Jan. 24, 2013) (SDO), that the district
court erred by dismissing a HRS § 709-906 charge over which the district
court had concurrent jurisdiction pursuant to HRS § 604-8(b). This court
accepted certiorari only to address the ICA’s reliance on the plain error
doctrine in making this ruling; we determined that the State had preserved
the error by timely appealing the dismissal. State v. Dela Cruz, SCWC-11-
0000367, 2014 WL 783148, at *2 (Haw. Feb. 27, 2014) (mem.). The ICA’s
substantive ruling regarding the district court’s error in dismissing the
abuse charge for lack of subject matter jurisdiction was affirmed. Id.18 We cannot envision all possibilities, and we therefore do not intend to
foreclose all possibility of a family court dismissing a concurrent count.
We merely rule that it cannot do so for an alleged lack of subject matter
jurisdiction or for the reasons stated in its 11/22/19 FOFs/COLs.
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