City and County of Honolulu v. Honolulu Police Commission.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-MAR-2022
08:38 AM
Dkt. 49 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
CITY AND COUNTY OF HONOLULU, by the DEPARTMENT OF THE CORPORATION
COUNSEL, Appellant-Appellant,
v.
HONOLULU POLICE COMMISSION, Appellee-Appellee,
and
LOUIS M. KEALOHA, Appellee
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC191000907)
MARCH 16, 2022
GINOZA, CHIEF JUDGE, HIRAOKA AND MCCULLEN, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
The Honolulu Police Commission determined that the City
and County of Honolulu must pay for an attorney to defend former
Honolulu Police Department (HPD) chief Louis M. Kealoha in a
federal criminal prosecution. A federal jury later found Kealoha
guilty. The City appealed the Police Commission's determination
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
that Kealoha was entitled to a defense. The Circuit Court of the
First Circuit affirmed.1 The City filed this secondary appeal.
For the reasons explained below, we hold that the
Police Commission properly applied its administrative rules —
which are consistent with the language of, and the legislative
intent behind, Hawaii Revised Statutes (HRS) §§ 52D-8 (2012) and
52D-9 (2012) — to the relevant facts in the record. Kealoha's
subsequent conviction did not retroactively vitiate the Police
Commission's determination. We affirm the "Findings of Fact,
Conclusions of Law, and Decision and Order" issued by the Police
Commission on May 10, 2019; and the "Final Judgment" entered by
the circuit court on December 2, 2020.
I. BACKGROUND
Kealoha was the chief of HPD. On October 19, 2017, a
federal grand jury returned a 20-count Indictment against
Kealoha, Kealoha's wife Katherine Kealoha, and four HPD officers:
Derek Wayne Hahn, Minh-Hung Nguyen, Gordon Shiraishi, and Daniel
Sellers. Indictment, United States v. Kealoha, Case 1:17-cr-
00582-JMS-RLP (D. Haw. Oct. 19, 2017) (the Federal Prosecution).
The Indictment alleged, among other things, that the defendants
conspired to frame a person identified as "G.K.P." for stealing
the Kealohas' mailbox.
Kealoha — through his attorney, Kevin P.H. Sumida —
tendered the defense of the Federal Prosecution to the City by
1
The Honorable James H. Ashford presided.
2
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letter to the Police Commission dated March 21, 2018. Enclosed
with the letter was a copy of the Indictment.
The Police Commission asked Kealoha to complete an HPD
form HPD-195 (Request for Legal Counsel) and submit it to HPD's
Professional Standards Office. Kealoha completed the HPD-195,
attaching another copy of the Indictment. The Police Commission
acknowledged receipt by letter stating: "The Commission will
determine whether the acts for which you are being criminally
prosecuted were done in the performance of your duties and will
consult with the Department of the Corporation Counsel in making
its decision."
The Police Commission asked the City's Department of
the Corporation Counsel to review Kealoha's HPD-195 and "provide
. . . a recommendation[.]" Corporation Counsel recommended that
Kealoha's request "be scheduled for [a] contested case hearing."
(Underscoring omitted.) Corporation Counsel indicated that a
written recommendation for disposition of the request "will be
provided to the Commission in advance of the scheduled hearing
date."
The Police Commission informed Kealoha that he could
request a contested case hearing. The Police Commission's letter
to Sumida stated: "The basic issue to be determined would be
whether the act for which [Kealoha] is being prosecuted or sued
was done in the performance of an officer's duty as a police
officer." Kealoha was informed, "If you do not request [a]
hearing . . . the Commission will proceed to grant or deny your
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request for legal counsel based on the information available
(including reports referred to in your request for representation
and the recommendation of the Corporation Counsel), and will
notify you of the final determination."
Sumida responded, "if the Police Commission has decided
to deny the request for a defense, then we would request a
contested case hearing." Sumida also informed the Police
Commission that the Federal Prosecution "now involves more than
one criminal case number[.]" Sumida sent the Police Commission
copies of the First Superseding Indictment and the Second
Superseding Indictment, and the federal district court's Order
Clarifying Case Number Assignments and Status of Indictments.2
The Police Commission informed Sumida: "Because the
First and Second Superseding Indictments differ from the initial
Indictment submitted by Mr. Kealoha . . . it is necessary for him
to submit a [sic] HPD-195 form for each superseding
indictment[.]"
As directed, Kealoha submitted copies of the First
Superseding Indictment and the Second Superseding Indictment,
under separate HPD-195 forms, to HPD. HPD sent the documents to
2
The order explained that the Indictment in the Federal Prosecution
(Cr. No. 17-00582-JMS-RLP) contained 20 counts. The First Superseding
Indictment contained 23 counts. The federal district court severed counts 1-
11 (charging all six defendants) from counts 12-23 (charging the Kealohas
only) for separate trials. The Second Superseding Indictment covered the
crimes charged in counts 12-23, and added two counts against the Kealohas
only. Because of the severed counts, the Second Superseding Indictment was
given a separate case number, Cr. No. 18-00068-JMS-RLP. The court then
dismissed counts 12-23 from the First Superseding Indictment in Cr. No. 17-
00582-JMS-RLP, so that case involved the First Superseding Indictment against
all six defendants, while Cr. No. 18-00068-JMS-RLP involved the Second
Superseding Indictment against the Kealohas only.
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the Police Commission, which sent the documents to Corporation
Counsel. Corporation Counsel again advised the Police Commission
to conduct a contested case hearing on Kealoha's requests, and
that a written recommendation would be provided before the
hearing date.
By memorandum dated January 16, 2019, Corporation
Counsel advised the Police Commission:
Based on available information, Chief Kealoha's
actions and activities alleged in the Indictments were not
done in the performance of his duties as a police officer
nor within the course and scope of his employment.
Accordingly, it is recommended that the [sic] Chief
Kealoha's request for legal representation provided by the
City as described in the [requests for legal services] be
denied.
A contested case hearing was held on March 6, 2019.3
Sumida represented Kealoha, who did not attend or testify at the
hearing.
On May 10, 2019, the Police Commission issued two
written decisions. Kealoha's request for counsel for the First
Superseding Indictment was granted.4 His request for counsel for
the Second Superseding Indictment was denied.5
3
The members of the Police Commission at that time were: Loretta A.
Sheehan, Chair; Shannon L. Alivado, Vice-Chair; Karen Chang; Gerard G. Gibson;
Steven H. Levinson; and Carrie K.S. Okinaga.
4
The Police Commission's "Findings of Fact, Conclusion of Law, and
Decision and Order" was signed by Chair Sheehan and members Levinson, Chang,
and Okinaga. Vice-Chair Alivado voted against granting Kealoha's request.
Commissioner Gibson was not present for the vote.
5
The Police Commission's "Findings of Fact, Conclusion of Law and
Decision and Order" was signed by Chair Sheehan, Vice-Chair Alivado, and
members Levinson, Chang, and Okinaga. Commissioner Gibson was not present for
the vote.
5
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On June 10, 2019, the City appealed to the circuit
court from the Police Commission's decision granting Kealoha's
request for counsel for the First Superseding Indictment.6 The
City's appeal was heard on October 16, 2020. On November 19,
2020, the circuit court entered an order affirming the Police
Commission's decision. The Final Judgment was entered on
December 2, 2020.
This appeal followed.7
II. POINTS OF ERROR
The City's opening brief raises two points of error:
1. "The circuit court erred in affirming the
[Police] Commission's Decision to grant L.
Kealoha's request for legal representation
for the criminal charges filed against him by
the United States in Cr. No. 17-00582"; and
2. "The circuit court erred when it applied the
insurance policy/complaint allegation rule
analysis as the analytical framework for
deciding representation requests under HRS
§§[]52D-8 and 52D-9."
6
Kealoha appealed from the Police Commission's decision denying his
request for counsel for the Second Superseding Indictment. As of March 9,
2022, Kealoha's appeal remained pending in circuit court. See Kealoha v. City
& Cnty. of Honolulu, 1CC191000913 (Cir. Ct. Haw. appeal docketed June 12,
2019).
7
HRS § 91-14(j) (Supp. 2019) provides:
The court shall give priority to contested case appeals of
significant statewide importance over all other civil or
administrative appeals or matters and shall decide these
appeals as expeditiously as possible.
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III. STANDARDS OF REVIEW
A. Administrative Agency Appeal
Our review of a circuit court decision on an appeal
from an administrative agency determination is a secondary
appeal; we must determine whether the circuit court was right or
wrong in its decision, applying the standards set forth in HRS
§ 91–14(g) (Supp. 2019) to the agency's decision. Flores v. Bd.
of Land & Nat. Res., 143 Hawai#i 114, 120, 424 P.3d 469, 475
(2018).
HRS § 91–14 (Supp. 2019) is entitled "Judicial review
of contested cases." Subsection (g) provides:
Upon review of the record, the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:
(1) In violation of constitutional or
statutory provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.
Under HRS § 91-14(g):
[C]onclusions of law are reviewed de novo, pursuant to
subsections (1), (2) and (4); questions regarding procedural
defects are reviewable under subsection (3); findings of
fact . . . are reviewable under the clearly erroneous
standard, pursuant to subsection (5), and an agency's
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exercise of discretion is reviewed under the arbitrary and
capricious standard, pursuant to subsection (6).
Cmty. Ass'ns of Hualalai, Inc. v. Leeward Plan. Comm'n, 150
Hawai#i 241, 252, 500 P.3d 426, 437 (2021) (emphasis added)
(citations omitted).
An agency's label of a finding of fact or a conclusion
of law does not determine the standard of review. See Crosby v.
State Dep't of Budget & Fin., 76 Hawai#i 332, 340, 876 P.2d 1300,
1308 (1994).
As a general matter, a finding of fact or a mixed
determination of law and fact is clearly erroneous when
(1) the record lacks substantial evidence to support the
finding or determination, or (2) despite substantial
evidence to support the finding or determination, the
appellate court is left with the definite and firm
conviction that a mistake has been made. Substantial
evidence is credible evidence which is of sufficient quality
and probative value to enable a person of reasonable caution
to support a conclusion.
Del Monte Fresh Produce (Haw.), Inc. v. International Longshore &
Warehouse Union, Local 142, 128 Hawai#i 289, 302, 287 P.3d 190,
203 (2012) (citation omitted). If an agency's finding or
conclusion presents mixed questions of fact and law, is supported
by valid findings of fact, and reflects an application of the
correct rule of law, it will not be overturned. See Est. of
Klink ex rel. Klink v. State, 113 Hawai#i 332, 351, 152 P.3d 504,
523 (2007).
In addition, "[w]here both mixed questions of fact and
law are presented, deference will be given to the agency's
expertise and experience in the particular field and the court
should not substitute its own judgment for that of the agency."
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AlohaCare v. Ito, 126 Hawai#i 326, 341, 271 P.3d 621, 636 (2012)
(quoting Peroutka v. Cronin, 117 Hawai#i 323, 326, 179 P.3d 1050,
1053 (2008)). "To be granted deference, however, the agency's
decision must be consistent with the legislative purpose." Id.(citation omitted).
B. Statutory Interpretation
We review the interpretation of a statute de novo. In
re Hawaiian Elec. Co., 149 Hawai#i 343, 359, 489 P.3d 1255, 1271
(2021). "In construing statutes, where the statutory language is
plain and unambiguous, our sole duty is to give effect to its
plain and obvious meaning." Fragiao v. State, 95 Hawai#i 9, 18,
18 P.3d 871, 880 (2001) (cleaned up). "Even when the meaning of
a law is apparent on its face, legislative history may be used to
confirm the court's interpretation of a statute's plain
language." Priceline.com, Inc. v. Dir. of Tax'n, 144 Hawai#i 72,
88, 436 P.3d 1155, 1171 (2019) (cleaned up).
C. Agency Rule Interpretation
The principles of construction that apply to statutes
also apply to administrative agency rules. In re Hawaiian Elec.
Co., 149 Hawai#i at 359, 489 P.3d at 1271.
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IV. DISCUSSION
A. Statutory and Regulatory Structure
HRS § 52D-8 (2012) provides:
Police officers; counsel for. Whenever a police officer is
prosecuted for a crime or sued in a civil action[8] for acts
done in the performance of the officer's duty as a police
officer, the police officer shall be represented and
defended:
(1) In criminal proceedings by an attorney to be
employed and paid by the county in which the
officer is serving; and
(2) In civil cases by the corporation counsel or
county attorney of the county in which the
police officer is serving.
The legislature intended that the statute maintain "the morale of
the [police] force" "in view of the increasing number of charges,
both civil and criminal, brought against police officers[.]"
Alejado v. City & Cnty. of Honolulu, 89 Hawai#i 221, 229-30, 971
P.2d 310, 318-19 (App. 1999) (quoting S. Stand. Comm. Rep.
No. 376, in 1941 Senate Journal, at 860–61).9
8
This appeal involves a police officer prosecuted for a crime; this
opinion does not address the circumstances under which a police officer sued
in a civil action would be entitled to representation under HRS § 52D-8.
9
We also noted that HRS § 52D-8 was "similar to" Cal. Gov't Code
§ 995. Alejado, 89 Hawai#i at 228, 971 P.2d at 317. Of the California
statute, one appellate court explained:
The reason for the rule is: ["]The duties of a [police
officer] are performed for the benefit of the public
. . . .["] With such protection afforded, the public can
expect that its laws will be zealously enforced without any
hesitation occasioned by considerations of possible personal
involvement in defending resulting litigation.
Sinclair v. Arnebergh, 36 Cal. Rptr. 810, 813 (Ct. App. 1964) (quoting City of
Corsicana v. Babb, 290 S.W. 736, 737 (Tex. Comm'n App. 1927)); see also Hall
v. Cal. Dep't of Corr., 835 F.Supp. 522, 527 (N.D. Cal. 1993) (noting that
such laws "protect[] public employees from the financial burdens that result
from third party claims and thus motivate[] state employees to perform their
jobs zealously"); Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 350
n.21 (Cal. 1976) (stating that due to such laws, "[p]ublic employees . . . no
longer have a significant reason to fear liability as they go about their
(continued...)
10
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The police commission of each county has exclusive
original jurisdiction to determine whether a police officer is
entitled to a defense under HRS § 52D-8. HRS § 52D-9 (2012)
provides:
Determination of scope of duty. The determination of
whether an act, for which the police officer is being
prosecuted or sued, was done in the performance of the
police officer's duty, so as to entitle the police officer
to be represented by counsel provided by the county, shall
be made by the police commission of the county. Before
making a determination, the police commission shall consult
the county attorney or the corporation counsel, who may make
a recommendation to the police commission with respect
thereto if the county attorney or corporation counsel so
desires. The determination of the police commission shall
be conclusive for the purpose of this section and section
52D-8.
See Alejado, 89 Hawai#i at 226, 971 P.2d at 315. The statute's
reference to the "conclusiveness" of the police commission's
determination refers to the City's procedures; it does not
preclude judicial review. Id. at 231, 971 P.2d at 320.
The Police Commission is authorized to adopt rules
necessary for the conduct of its business. Revised Charter of
the City and County of Honolulu (RCCCH) § 6-1606 (2017). Rule 11
of the Rules of the Honolulu Police Commission (RHPC) applies to
the Police Commission's determinations under HRS § 52D-9. RHPC
Rule 11-1 provides, in relevant part:
(e) For purposes of this Rule 11, the following shall be
considered by the Commission in determining whether
"an act, for which the police officer is being
prosecuted or sued, was done in the performance of the
officer's duty":
9
(...continued)
official tasks").
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(i) whether the act was incident to required or
authorized work-related activity;
(ii) whether the act was incident to a course of
conduct taking place at a time that the officer
was required to engage in the course of conduct
by the nature of the officer's responsibilities
as a police officer; and
(iii) whether the act was incident to a course of
conduct engaged in at a place that the officer
was authorized to engage in it by the nature of
the officer's responsibilities as a police
officer.
The City does not challenge the validity of RHPC
Rule 11-1; the City challenges only the manner in which the rule
was applied in this case. We note that the language of RHPC
Rule 11-1 is consistent with both the plain language of HRS
§§ 52D-8 and 52D-9, and the legislature's stated intent to
maintain the morale of the police force, see Alejado, 89 Hawai#i
at 229-30, 971 P.2d at 318–19.
Within this framework we first address the City's
structural argument, then its substantive one.
B. The City's Structural Argument
1. The "complaint allegation rule" does not
apply to a county police commission's
determination under HRS § 52D-8.
The circuit court held:
8. The Court finds that the tripartite relationship
among the officer, the county, and the officer's appointed
attorney is analogous to the relationship among an insurer,
defense counsel, and the insured, and, as such, the
obligation to defend is determined by the complaint
allegation rule. The Court finds this rule to be the
appropriate analytical framework.
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(Emphasis added.) The City contends that the circuit court erred
by applying the "complaint allegation rule" to the Police
Commission's review of Kealoha's request for counsel.
Under Hawai#i law, the complaint allegation rule
determines a liability insurer's duty to defend its insured (and,
in some cases, a non-insurer indemnitor's contractual duty to
defend an indemnitee) in a civil action seeking an award of
damages:
If a complaint alleges claims that fall within the coverage
of the indemnity provision, then, according to the complaint
allegation rule, the duty to defend begins. This is
separate and distinct from the duty to indemnify. Once the
trier of fact makes a determination on the claims in the
lawsuit, the duty to indemnify will either arise or lie
dormant. Claims falling within the indemnity provision will
trigger the duty to indemnify, while claims falling outside
the provision will relieve the indemnitor of [their] duty to
indemnify. In our view, this is the only equitable
interpretation that gives life to non-insurance indemnity
clauses and prevents indemnitors from benumbing the duty to
defend until after a case has been litigated.
Arthur v. State, Dep't of Hawaiian Home Lands, 138 Hawai#i 85, 96,
377 P.3d 26, 37 (2016) (quoting Pancakes of Haw., Inc. v. Pomare
Props. Corp., 85 Hawai#i 286, 292, 944 P.2d 83, 89 (App. 1997)).10
The circuit court's analogy to the tripartite
relationship that arises when a liability insurer pays the cost
for an attorney to represent an insured is understandable given
the case law addressing whether counsel retained by a county to
defend a police officer in a criminal case had a conflict of
interest. See Fragiao, 95 Hawai#i at 20, 18 P.3d at 882 ("[T]he
10
In Arthur, the supreme court held that the complaint allegation
rule did not apply to indemnity provisions in construction contracts, citing
HRS § 431:10–222 ("Construction industry; indemnity agreements invalid.").
Id. at 97, 377 P.3d at 38.
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tripartite relationship among the County, [the lawyer paid by the
County to defend the police officer], and [the police officer] is
analogous to the relationship among an insurer, defense counsel,
and insured, cited with approval in Comment 10 to [Hawai#i Rules
of Professional Conduct] Rule 1.7 and discussed in Finley.")
(citing Finley v. Home Ins. Co., 90 Hawai#i 25, 975 P.2d 1145(1998)).
The analogy does not, however, extend to the City's
obligation to defend a police officer against criminal charges
under HRS § 52D-8. A liability insurer's duty to defend is
contractual in nature, determined by the language of the
insurance policy. Hawaiian Holiday Macadamia Nut Co. v. Indus.
Indem. Co., 76 Hawai#i 166, 169, 872 P.2d 230, 233 (1994). The
insurer's duty to defend is triggered "whenever there is a
potential for indemnification liability of the insurer to the
insured." Id. Determining the "potential for indemnification
liability" under an insurance policy simply means asking the
question: "If all of the factual allegations of the complaint are
proven to be true, would any portion of the resultant legal
liability be covered under the defendant's insurance policy?" If
the answer is "yes" then there is a duty to defend under the
complaint allegation rule; if the answer is "no" then there is no
duty to defend. See id. ("The duty to defend is limited to
situations where the pleadings have alleged claims for relief
which fall within the terms for coverage of the insurance
contract. Where pleadings fail to allege any basis for recovery
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within the coverage clause, the insurer has no obligation to
defend.") (citations omitted).
By contrast, a county's obligation to defend a police
officer being prosecuted for a crime is statutory, determined by
the language of HRS § 52D-8. That statute obligates a county to
pay for counsel "[w]henever a police officer is prosecuted for a
crime . . . for acts done in the performance of the officer's
duty as a police officer." (Emphasis added.) Significantly, the
county police commission's decision is made before determination
of the police officer's guilt or innocence. Compare HRS § 52D-8,
with Conn. Gen. Stat. Ann. § 53-39a (West).11 The complaint
allegation rule would require that the county police commission
assume the criminal charges against the police officer —
including the officer's alleged motive for the alleged acts — to
be true. That would be contrary to the plain language of, and
the legislative intent behind, HRS § 52D-8. The complaint
allegation rule did not apply to the Police Commission's
determination in this case.
2. The "scope of employment" test does not
apply to a county police commission's
determination under HRS § 52D-8.
11
Connecticut requires that police officers defend themselves
against criminal charges arising out of their conduct as police officers.
"Section 53–39a . . . authorizes indemnification for . . . legal fees[]
incurred by officers of local police departments who are prosecuted for crimes
allegedly committed by them in the course of their duties when the charges
against them are dismissed or they are found not guilty." Cislo v. City of
Shelton, 692 A.2d 1255, 1260 (Conn. 1997) (citation omitted). By contrast,
HRS § 52D-8 requires a defense, not indemnity.
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The City contends the appropriate test to determine
whether a police officer is entitled to a defense under HRS
§ 52D-8 is the "scope of employment" test. That test is used to
determine an employer's vicarious tort liability for acts or
omission by an employee under the common-law doctrine of
respondeat superior.12 Under that test:
(1) Conduct of a servant is within the scope of employment
if, but only if:
(a) it is of the kind [the servant] is employed to
perform;
(b) it occurs substantially within the authorized
time and space limits; [and]
(c) it is actuated, at least in part, by a purpose
to serve the master[.]
. . . .
(2) Conduct of a servant is not within the scope of
employment if it is different in kind from that authorized,
far beyond the authorized time or space limits, or too
little actuated by a purpose to serve the master.
Henderson v. Pro. Coatings Corp., 72 Haw. 387, 392, 819 P.2d 84,
88 (1991) (emphasis added) (quoting Restatement (Second) of
Agency § 228 (1958)); see also Wong-Leong v. Hawaiian Indep.
Refinery, Inc., 76 Hawai#i 433, 441, 879 P.2d 538, 546 (1994) ("In
determining the scope of employment, the applicable test is
whether . . . the enterprise derived any benefit from the
activity.") (citations omitted).
12
Our reference in Alejado to "course and scope of employment" was a
quote from the former "Guidelines of the Honolulu Police Commission Request
for Legal Counsel[.]" 89 Hawai#i at 223 n.2, 971 P.2d at 312 n.2. Alejado
did not address RHPC Rule 11-1, nor did we decide that the "scope of
employment" test applied to the police officer's request for legal
representation at issue in that case. In this case, the City conceded that
RHPC Rule 11-1 does "not use a 'scope of employment' analysis."
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Nothing in HRS §§ 52D-8 or 52D-9, or in RHPC Rule 11-1,
implicates a police officer's "purpose to serve" HPD (or lack
thereof), or whether HPD derived any benefit from the police
officer's alleged acts. As the Police Commission points out,
"HRS § 52D-8 does not require examination of the motive or intent
of a police officer in determining whether legal representation
shall be provided." (Underscoring omitted). The plain language
of HRS § 52D–8 requires that a county pay for a police officer's
defense if the officer is prosecuted for "acts done in the
performance of the officer's duty as a police officer[.]"
(Emphasis added.) Application of the "scope of employment" test
— elements of which are the police officer's intent to serve the
police department and the police department's having derived a
benefit from the officer's alleged acts — would be contrary to
the plain language of HRS § 52D–8 and RHPC Rule 11-1. It is hard
to think of any crime committed by a police officer that could
have been intended by the officer to serve the police department,
or from which the department could derive any benefit.
Application of the common-law "scope of employment" test would
defeat both the plain language of HRS § 52D-8 and the
legislature's intent to maintain the morale of the police force.
See Alejado, 89 Hawai#i at 229-30, 971 P.2d at 318–19. The scope
of employment test did not apply to the Police Commission's
determination in this case.
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3. Kealoha was not required to testify
at his contested case hearing.
The City also argues that Kealoha failed to sustain his
burdens of proof, production, and persuasion13 by failing to
testify during his contested case hearing that he intended the
acts for which he was being prosecuted to benefit the City.
A police officer being prosecuted for a crime has a
constitutionally protected property right to county-provided
legal representation if the officer is prosecuted for acts done
in the performance of the officer's duty as a police officer.
See Alejado, 89 Hawai#i at 229-30, 971 P.2d at 318-19. The
officer may not be deprived of that right without due process.
Id. at 230-31, 971 P.2d at 319-20. "[D]ue process requires that
the [Police] Commission conduct contested case hearings[,]" id.
at 225, 971 P.2d at 314 (citations omitted), "with the full
procedural protection afforded by [the Hawai#i Administrative
13
In support of this argument, the City directs this court to the
burdens established in HRS § 91-10 and RHPC Rule 11-4(c). HRS § 91-10 (2012)
provides, in relevant part:
§ 91-10 Rules of evidence; official notice. In
contested cases:
. . . .
(5) Except as otherwise provided by law, the party
initiating the proceeding shall have the burden
of proof, including the burden of producing
evidence as well as the burden of persuasion.
The degree or quantum of proof shall be a
preponderance of the evidence.
RHPC Rule 11-4(c) provides:
The police officer requesting representation shall have the
burden of proof including the burden of producing evidence
and the burden of persuasion by a preponderance of the
evidence.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Procedure Act,]" id. at 231, 971 P.2d at 320 (underscoring
omitted).
A police officer being prosecuted for a crime also has
a constitutional right against self-incrimination under the Fifth
Amendment to the United States Constitution and article 1,
section 10 of the Hawai#i Constitution. See State v. Bowe, 77
Hawai#i 51, 57, 881 P.2d 538, 544 (1994). Requiring Kealoha to
testify before the Police Commission — in a contested case
hearing open to the public — during the pendency of the Federal
Prosecution would have required that he waive his constitutional
right against self-incrimination in order to obtain the defense
for which HRS § 52D-8 provides, in violation of his right to due
process. See State v. Valera, 74 Haw. 424, 438, 848 P.2d 376,
382 (1993) (holding that use at sentencing of statements obtained
in violation of defendant's privilege against self-incrimination
violates defendant's right to due process); HRS § 91-10(1) (2012)
("The agencies shall give effect to the rules of privilege
recognized by law[.]").
Having to choose between his constitutional right
against self-incrimination and his right to a defense under HRS
§ 52D-8 would also have impermissibly placed Kealoha in the
proverbial Procrustean dilemma14 described by the supreme court in
14
Procrustes is a character from Greek mythology who ran an inn. He
would tell passing travelers that he owned a special bed that exactly matched
whoever lay down on it, no matter how short or tall. What the guests were not
told was that Procrustes would stretch them on a rack if they were too short
for his bed, or chop off their legs if they were too tall. In either case,
the guest would die. The phrase "Procrustean bed" "has become proverbial for
arbitrarily – and perhaps ruthlessly – forcing someone or something to fit
(continued...)
19
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Dairy Rd. Partners v. Island Ins. Co., 92 Hawai#i 398, 417, 992
P.2d 93, 112 (2000) and Nautilus Ins. Co. v. Lexington Ins. Co.,
132 Hawai#i 283, 288, 321 P.3d 634, 639 (2014). Kealoha was not
required to testify during his contested case hearing.
4. HRS § 52D-8 requires that a county
police commission consider the police
officer's alleged act, but not the
officer's alleged motive.
Under the Hawai#i Penal Code every criminal offense must
contain a conduct element. State v. Mita, 124 Hawai#i 385, 391,
245 P.3d 458, 464 (2010). HRS § 702-205 (2014) provides:
The elements of an offense are such (1) conduct,
(2) attendant circumstances, and (3) results of conduct, as:
(a) Are specified by the definition of the offense,
and
(b) Negative a defense (other than a defense based
on the statute of limitations, lack of venue, or
lack of jurisdiction).
(Emphasis added.)15 "Conduct" is defined as "an act or omission,
or, where relevant, a series of acts or a series of omissions, or
a series of acts and omissions." HRS § 701-118 (2012).
The plain language of HRS § 52D–8 and RHPC Rule 11-1
implicates the police officer's conduct (as defined by HRS § 701-
14
(...continued)
into an unnatural scheme or pattern." The Editors of Encyclopedia Britannica,
Procrustes, Britannica, https://www.britannica.com/topic/Procrustes (last
updated Jan. 4, 2011). Procrustes was eventually killed by Theseus, but that
could be a subject for another footnote in another case.
15
Federal law is similar. See United States v. Apfelbaum, 445 U.S.
115, 131 (1980) ("In the criminal law, both a culpable mens rea and a criminal
actus reus are generally required for an offense to occur."). "Mens rea" is
"[t]he state of mind that the prosecution, to secure a conviction, must prove
that a defendant had when committing a crime[.]" Mens Rea, Black's Law
Dictionary (11th ed. 2019). "Actus reus" is "[t]he wrongful deed that
comprises the physical components of a crime and that generally must be
coupled with mens rea to establish criminal liability[.]" Actus Reus, Black's
Law Dictionary (11th ed. 2019).
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
118); it does not implicate the police officer's motive for
committing the alleged act for which the officer is being
prosecuted. HRS § 52D–8 requires that a police commission
determine whether the act allegedly committed by the police
officer was within "the performance of the officer's duty as a
police officer[.]" In making that determination, a police
commission must consider the allegations made in the charging
document concerning the police officer's acts — the conduct
element — and disregard allegations about the officer's motive
for committing the alleged acts. If the acts alleged were within
the performance of the officer's duty as a police officer, the
officer is entitled to a defense under HRS § 52D–8, regardless of
the officer's alleged motive.16
We next address the City's substantive argument.
C. The circuit court did not err in affirming
the Police Commission's determination that
Kealoha was entitled to defense counsel for
the First Superseding Indictment.
On appeal to the circuit court, the City challenged the
Police Commission's findings of fact (FOF) nos. 18, 19, 20, and
21; conclusions of law (COL) nos. 2 and 3;17 and the decision and
order granting Kealoha's request for defense counsel.
16
The Police Commission's second conclusion of law no. 3
appropriately stated: "The Commission renders no conclusion of law regarding
the merits of the First Superseding Indictment." Determining the merits of
the First Superseding Indictment — including Kealoha's alleged subjective
intent behind his alleged conduct — was the role of the federal jury, not the
Police Commission.
17
The Police Commission's conclusions of law contained two
conclusions of law no. 3. The City challenges the first conclusion of law
no. 3.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
1. Finding of Fact No. 18
The Police Commission found, in relevant part:
18. The Commission finds that the factual
allegations in Paragraph 37a of the First Superseding
Indictment . . . which provide "in relevant part that in or
about June 2011, L. KEALOHA caused CIU[18] officers to
conduct physical surveillance of G.K.P., and to continue
such surveillance from time to time through June
2013"[ ]allege acts done in the performance of Kealoha's
duty as a police officer because the alleged acts, even if
unlawful and regardless of motive, were incident to: (a) "a
required or authorized work-related activity"; (b) "a course
of conduct taking place at a time that the officer was
required to engage in the course of conduct by the nature of
the officer's responsibilities as a police officer;" [sic]
and (c) "a course of conduct engaged in at a place that the
officer was authorized to engage in it by the nature of the
officer's responsibilities as a police officer." See [RHPC]
Rules [sic] 11-1(e)(i)-(iii).
(Cleaned up) (emphasis added).
FOF no. 18 is a mixed finding of fact and conclusion of
law. To the extent it is a finding of fact it is not clearly
erroneous because paragraph 37 of the First Superseding
Indictment alleged, in relevant part:
37. In furtherance of the conspiracy, the
conspirators committed the following overt acts, among
others, within the District of Hawaii and elsewhere:
18
According to the First Superseding Indictment:
A separate, federally-authorized and specialized unit of HPD
called the Criminal Intelligence Unit ("CIU") was
responsible for gathering intelligence and data on organized
crime, terrorism, and gang threats facing the City and
County of Honolulu. The members of CIU did not collect
evidence to be used in the investigation and prosecution of
criminal cases, but instead, passed intelligence information
about criminal threats to other units in HPD and federal law
enforcement partners. Because of their specialized duties
and responsibilities, officers in CIU were supervised by a
lieutenant, who reported to a captain, who ultimately
reported to the Chief of Police, which from 2009 to 2017 was
L. KEALOHA. Due to that close relationship, the Chief of
Police played a direct role in selecting and appointing
officers to CIU.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
a. In or about June 2011, L. KEALOHA . . .
caused CIU officers to conduct physical surveillance
of G.K.P., and to continue such surveillance from time
to time through June 2013.
To the extent FOF no. 18 was a conclusion of law, it
was not wrong. HRS § 52D-3 (2012) provides:
The chief of police shall have the powers and duties as
prescribed by law, the respective county charter, and as
provided by this chapter.
RCCCH § 6-1604 describes the powers, duties, and functions of the
chief of HPD:
The chief of police shall:
(a) Be responsible for the preservation of the public
peace; the protection of the rights of persons and
property; the prevention of crime; the detection and
arrest of offenders against the law and the
enforcement and prevention of violations of all laws
of the state and city ordinances and all rules and
regulations made in accordance therewith.
(b) Train, equip, maintain and supervise the force of
police officers.
. . . .
(g) Perform such other duties as may be required by this
charter or by law.
The scope of the chief's duty under RCCCH § 6-1604 is extremely
broad. It applies 24 hours per day, covers all of the City and
County of Honolulu, and includes supervision of all police
officers within HPD.19
19
Any police officer, even while "off duty" — that is, outside of
the officer's scheduled work shift and/or assigned beat or duty station — may
be called upon to perform their duty as a police officer. HRS § 52D-15 (2012)
provides:
Off-duty police officers; benefits for personal injuries.
For the purposes of chapters 88 [Pension and Retirement
Systems] and 386 [Workers' Compensation], a police officer
who is injured, disabled, or killed while actually engaged
in the apprehension or attempted apprehension of law
(continued...)
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
It was within the scope of Kealoha's duty as chief to
cause HPD officers to surveil a suspect. The act of authorizing
surveillance was thus "incident to required or authorized work-
related activity" by Kealoha.
For purposes of HRS § 52D-8, causing "CIU officers to
conduct physical surveillance of G.K.P." was an act "done in the
performance of [Kealoha]'s duty as a police officer." It was
"incident to required or authorized work-related activity" under
RHPC Rule 11-1(e)(i). (Emphasis added.) It was "incident to a
course of conduct taking place at a time that the officer was
required to engage in the course of conduct by the nature of the
officer's responsibilities as a police officer" under RHPC Rule
11-1(e)(ii). (Emphasis added.) And it was "incident to a course
of conduct engaged in at a place that the officer was authorized
to engage in it by the nature of the officer's responsibilities
as a police officer" under RHPC Rule 11-1(e)(iii). (Emphasis
19
(...continued)
violators or suspected law violators, or in the preservation
of peace, or in the protection of the rights or property of
persons shall be deemed to have been injured, disabled, or
killed while in the actual performance of duty, and the
injury, disability, or death shall be deemed to have been
caused by accident arising out of and in the course of the
police officer's employment, notwithstanding that the
accident causing the injury, disability, or death occurred
at a time, place, or time and place, not within the police
officer's regular tour of duty and notwithstanding that the
police officer was not acting under the direction of the
police officer's superiors at the time and place of the
accident; provided that the accident occurs within the
jurisdiction wherein the police officer is commissioned and
while the police officer is acting solely as a police
officer.
(Emphasis added.)
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
added.) The Police Commission's conclusion was supported by its
findings of fact and was a correct application of the law.
2. Finding of Fact No. 19
The Police Commission found, in relevant part:
19. The Commission finds that the factual
allegations in Paragraph 37cc . . . which provide in
relevant part that "on or about June 27, 2013, L. KEALOHA
created a false police report identifying G.K.P. as the
suspect of an alleged burglary at the Kealohas then personal
residence on June 23 or 24, 2013"[ ]allege acts done in the
performance of Kealoha's duty as a police officer because
the alleged act, even if unlawful and regardless of motive,
was incident to: (a) "a required or to [sic] authorized
work-related activity"; (b) "a course of conduct taking
place at a time that the officer was required to engage in
the course of conduct by the nature of the officer's
responsibilities as a police officer;" [sic] and (c) "a
course of conduct engaged in at a place that the officer was
authorized to engage in it by the nature of the officer's
responsibilities as a police officer." See [RHPC] Rules
[sic] 11-l(e)(i)-(iii).
(Cleaned up) (emphasis added).
FOF no. 19 is a mixed finding of fact and conclusion of
law. To the extent it is a finding of fact it is not clearly
erroneous because paragraph 37 of the First Superseding
Indictment alleged, in relevant part:
37. In furtherance of the conspiracy, the
conspirators committed the following overt acts, among
others, within the District of Hawaii and elsewhere:
. . . .
cc. On or about June 27, 2013, L. KEALOHA,
. . . MINH-HUNG NGUYEN, and DEREK WAYNE HAHN created a
false police report identifying G.K.P. as the suspect
of an alleged burglary at the KEALOHAs' then personal
residence on June 23 or 24, 2013.
It was within the scope of Kealoha's duty as chief to
cause HPD officers to prepare reports. Thus, for purposes of HRS
§ 52D-8, Kealoha's alleged participation in the creation of a
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
report about G.K.P. was an act "done in the performance of
[Kealoha]'s duty as a police officer" and "incident to required
or authorized work-related activity" under RHPC Rule 11-1(e)(i).
The Police Commission's conclusion was supported by its findings
of fact and was a correct application of HRS § 52D-8 and RHPC
Rule 11-1(e)(i)-(iii).
3. Finding of Fact No. 20
The Police Commission found, in relevant part:
20. The Commission finds that the factual
allegations in Paragraph 37ee . . . which provide in
relevant part that, "on or about June 29, 2013, L. KEALOHA
caused DANIEL SELLERS to direct HPD officers to arrest
G.K.P. for stealing their mailbox," allege acts done in the
performance of Kealoha's duty as a police officer because
the alleged act, even if unlawful and regardless of motive,
was incident to: (a) "a required or to [sic] authorized
work-related activity"; (b) "a course of conduct taking
place at a time that the officer was required to engage in
the course of conduct by the nature of the officer's
responsibilities as a police officer;" [sic] and (c) "a
course of conduct engaged in at a place that the officer was
authorized to engage in it by the nature of the officer's
responsibilities as a police officer." See [RHPC] Rule
11-l(e)(i)-(iii).
(Cleaned up) (emphasis added).
FOF no. 20 is a mixed finding of fact and conclusion of
law. To the extent it is a finding of fact it is not clearly
erroneous because paragraph 37 of the First Superseding
Indictment alleged, in relevant part:
37. In furtherance of the conspiracy, the
conspirators committed the following overt acts, among
others, within the District of Hawaii and elsewhere:
. . . .
ee. On or about June 29, 2013, L. KEALOHA
. . . caused DANIEL SELLERS to direct HPD officers to
arrest G.K.P. for stealing their mailbox.
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
It was within the scope of Kealoha's duty as chief to
cause HPD officers to arrest persons suspected of committing a
crime. Thus, for purposes of HRS § 52D-8, Kealoha's act of
instructing Sellers to cause other police officers to arrest
G.K.P. would have been "done in the performance of [Kealoha]'s
duty as a police officer" and "incident to required or authorized
work-related activity" under RHPC Rule 11-1(e)(i). The Police
Commission's conclusion was supported by its findings of fact and
was a correct application of HRS § 52D-8 and RHPC Rule 11-
1(e)(i)-(iii).
4. Finding of Fact No. 21
The Police Commission found, in relevant part:
21. The Commission finds that the factual
allegations in Paragraph 37ff . . . which provide that "on
or about June 29, 2013, between 5:09 p.m. and 5:12 p.m.,
L. KEALOHA and DEREK WAYNE HAHN exchanged approximately
three phone calls," allege facts done in the performance of
Kealoha's duty as a police officer because the alleged acts,
regardless of motive, were incident to: (a) "a required or
authorized work-related activity"; (b) "a course of conduct
taking place at a time that the officer was required to
engage in the course of conduct by the nature of the
officer's responsibilities as a police officer;" [sic] and
(c) "a course of conduct engaged in at a place that the
officer was authorized to engage in it by the nature of the
officer's responsibilities as a police officer." See [RHPC]
Rules [sic] 11-l(e)(i)-(iii).
(Cleaned up) (emphasis added).
FOF no. 21 is a mixed finding of fact and conclusion of
law. To the extent it is a finding of fact it is not clearly
erroneous because paragraph 37 of the First Superseding
Indictment alleged, in relevant part:
37. In furtherance of the conspiracy, the
conspirators committed the following overt acts, among
others, within the District of Hawaii and elsewhere:
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
. . . .
ff. On or about June 29, 2013, between
5:09 p.m. and 5:12 p.m., L. KEALOHA and DEREK WAYNE
HAHN exchanged approximately three phone calls.
The First Superseding Indictment also alleged that on
June 29, 2013: Kealoha's wife identified G.K.P. as the person
shown in a security video stealing the Kealohas' mailbox; Kealoha
caused Sellers to have G.K.P. arrested for stealing the mailbox;
and Hahn was the person who supervised HPD CIU officers
(including Sellers). It was within Kealoha's duty as chief to
communicate with subordinate officers to effectuate the arrest of
a person suspected of committing a crime. Thus, for purposes of
HRS § 52D-8, Kealoha's alleged phone calls with Hahn on the day
G.K.P. was arrested would (if they concerned the arrest) have
been "done in the performance of [Kealoha]'s duty as a police
officer" and "incident to required or authorized work-related
activity" under RHPC Rule 11-1(e)(i). The Police Commission's
conclusion was supported by its findings of fact and was a
correct application of HRS § 52D-8 and RHPC Rule 11-1(e)(i)-
(iii).
5. Conclusion of Law No. 2
The Police Commission concluded, in relevant part:
2. Pursuant to Rule 11-l(e) of the Honolulu Police
Commission Rules 2018, effective October 28, 2018,
the following shall be considered by the
Commission in determining whether 'an act, for
which the police officer is being prosecuted or
sued, was done in the performance of the
officers' [sic] duty':
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(i) whether the act was incident to required
or authorized work-related activity;
(ii) whether the act was incident to a course
of conduct taking place at a time that the
officer was required to engage in the
course of conduct by the nature of the
officer's responsibilities as a police
officer; and
(iii) whether the act was incident to a course
of conduct engaged in at a place that the
officer was authorized to engage in it by
the nature of the officer's
responsibilities as a police officer.
"An agency's interpretation of its own rules is
generally entitled to deference unless 'plainly erroneous or
inconsistent with the underlying legislative purpose.'" Kilakila
#O Haleakala v. Bd. of Land & Nat. Res., 138 Hawai#i 383, 396, 382
P.3d 195, 208 (2016) (quoting Panado v. Bd. of Trs., Emps.' Ret.
Sys., 134 Hawai#i 1, 11, 332 P.3d 144, 154 (2014)). "This
deference arises from the fact that agencies possess and exercise
subject-matter expertise and experience the courts generally
lack." Keep the North Shore Country v. Bd. of Land & Nat. Res.,
___ Hawai#i ___, ___, ___ P.3d ___, ___, SCAP-XX-XXXXXXX, 2022 WL
522648, at *14 (Haw. Feb. 22, 2022) (citation omitted).
Therefore, "deference will be given to the agency's expertise and
experience in the particular field and the court should not
substitute its own judgment for that of the agency." AlohaCare,
126 Hawai#i at 341, 271 P.3d at 636 (quoting Peroutka, 117 Hawai#i
at 326, 179 P.3d at 1053). "This is particularly true where the
law to be applied is not a statute but an administrative rule
promulgated by the same agency interpreting it." Kilakila #O
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Haleakala, 138 Hawai#i at 403, 382 P.3d at 215 (quoting Camara v.
Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984)).
The City does not contend that RHPC Rule 11-1(e) is
ambiguous or that it is legally inconsistent with HRS § 52D-8.
The plain language of RHPC Rule 11-1(e) and its subparts
establish factors for the Police Commission to consider in
determining whether an act for which a police officer is being
prosecuted was "done in the performance of the officer's duty as
a police officer" within the meaning of HRS § 52D-8. Consistent
with the plain language of (and legislative intent behind) HRS
§ 52D-8, the rule does not include the police officer's motive as
a factor.
6. Conclusion of Law No. 3
The Police Commission concluded, in relevant part:
3. Kealoha's alleged acts, referred to supra in
Paragraphs 18, 19, 20, and 21 were done in the performance
of Kealoha's duty as a police officer so as to entitle him
to be represented and defended by an attorney to be employed
and paid by the City and County of Honolulu, pursuant to HRS
§§ 52D-8 and -9.
COL no. 3 was supported by the Police Commission's findings of
fact (about the allegations contained in the First Superseding
Indictment) and was a correct application of HRS § 52D-8 and RHPC
Rule 11-1(e)(i)-(iii).
7. Decision and Order
The Police Commission concluded, in relevant part:
Pursuant to the foregoing Findings of Fact and
Conclusions of Law, the Commission finds that LOUIS M.
KEALOHA has met his burden of proof and persuasion regarding
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
his claim for representation and further pursuant to HRS
§ 52D-9, the Commission hereby GRANTS Kealoha's request for
legal counsel.
Kealoha met his burdens of proof and persuasion by providing the
First Superseding Indictment to the Police Commission. The
Police Commission's decision and order was supported by its
findings of fact and was a correct application of HRS § 52D-8 and
RHPC Rule 11-1(e)(i)-(iii).
We take judicial notice, pursuant to Rule 201 of the
Hawaii Rules of Evidence (HRE),20 that a federal jury eventually
found Kealoha guilty on counts 1, 2, 6, and 8 of the First
Superseding Indictment. Minutes, United States v. Kealoha, Case
1:17-cr-00582-JMS-WRP (D. Haw. June 27, 2019), ECF No. 834. The
verdict was returned on June 27, 2019; on May 10, 2019, when the
Police Commission's Findings of Fact, Conclusions of Law, and
Decision and Order were issued, Kealoha's guilt or innocence had
not been determined. The same federal jury also found Shiraishi
20
HRE Rule 201 provides, in relevant part:
Judicial notice of adjudicative facts. (a) Scope of rule.
This rule governs only judicial notice of adjudicative
facts.
(b) Kinds of facts. A judicially noticed fact must
be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial
jurisdiction of the trial court, or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.
(c) When discretionary. A court may take judicial
notice, whether requested or not.
. . . .
(f) Time of taking notice. Judicial notice may be
taken at any stage of the proceeding.
HRE Rule 201, Chapter 626, Hawaii Revised Statutes (2016).
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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
— one of the alleged co-conspirators — not guilty on all counts;
a Judgment of Acquittal was entered in his favor on December 17,
2020. Judgment of Acquittal, United States v. Shiraishi, Case
1:17-cr-00582-JMS-WRP (D. Haw. Dec. 17, 2020), ECF No. 1042. Had
Shiraishi requested a defense under HRS § 52D-8, the law would
have equally applied to his request. Kealoha's eventual
conviction did not retroactively vitiate the Police Commission's
application of RHPC Rule 11-1(e). It would have been contrary to
the plain language of, and legislative intent behind, HRS § 52D-8
to require that the Police Commission engage in fact-finding and
decide the merits of the criminal charge to determine whether
Kealoha was entitled to a defense under HRS § 52D-8.
V. CONCLUSION
For the foregoing reasons, the "Findings of Fact,
Conclusions of Law, and Decision and Order" issued by the Police
Commission on May 10, 2019, and the "Final Judgment" entered by
the circuit court on December 2, 2020, are affirmed.
On the briefs:
/s/ Lisa M. Ginoza
Linda Lee K. Farm, Chief Judge
Donna H. Kalama,
for Appellant-Appellant /s/ Keith K. Hiraoka
City and County of Honolulu. Associate Judge
Denise W.M. Wong, /s/ Sonja M.P. McCullen
Duane W. H. Pang, Associate Judge
Deputies Corporation Counsel,
for Appellee-Appellee
Honolulu Police Commission.
32