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Electronically Filed
Supreme Court
SCWC-13-0000117
25-JUN-2015
09:05 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
MICHAEL DOYLE RUGGLES, REV. NANCY WAITE HARRIS,
KENNETH V. MIYAMOTO-SLAUGHTER, WENDY TATUM, DAVID TATUM, and
ROBERT S. MURRAY, Petitioners/Plaintiffs-Appellants,
and
GEORGE HERMAN KLARE, BARBARA JEAN LANG,
Plaintiffs-Appellees,
vs.
DOMINIC YAGONG, DONALD IKEDA, J. YOSHIMOTO, DENNIS ONISHI,
FRED BLAS, BRITTANY SMART, BRENDA FORD, ANGEL PILAGO, and
PETE HOFFMAN, current Hawaii County Council members;
JAY KIMURA, Hawaii County Prosecutor;
MITCHELL ROTH and CHARLENE IBOSHI, Deputy Prosecuting Attorneys;
BILLY KENOI, Hawaii County Mayor, respondeat superior,
HARRY KUBOJIRI, Hawaii County Chief of Police,
KELLY GREENWELL, GUY ENRIQUES, and EMILY NAEOLE,
previous Hawaii County Council members,
Respondents/Defendants-Appellees.
________________________________________________________________
SCWC-13-0000117
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0000117; CIV. NO. 11-1-117)
JUNE 25, 2015
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.;
WITH POLLACK, J., DISSENTING, WITH WHOM WILSON, J., JOINS.
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OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Petitioners, a group of pro se individuals from Hawaii
County, present the following question: “Did the Intermediate
Court of Appeals err in determining that the Lowest Law
Enforcement Priority of Cannabis, a voter sponsored initiative,
in its entirety is in conflict with State laws, and is thus
preempted by them?” We answer this question in the negative.
Our case law holds that a municipal ordinance may be preempted
by state law “if (1) it covers the same subject matter embraced
within a comprehensive state statutory scheme disclosing an
express or implied intent to be exclusive and uniform throughout
the state or (2) it conflicts with state law.” Richardson v.
City & Cnty. of Honolulu, 76 Hawaiʻi 46, 62, 868 P.2d 1193, 1209
(1994) (citations omitted).
We accepted certiorari to clarify that the ordinance in
this case is preempted solely because it “conflicts with state
law.” It is not necessary to address whether the LLEP “covers
the same subject matter embraced within a comprehensive state
statutory scheme disclosing an express or implied intent to be
exclusive and uniform throughout the state . . . .” Id. The
ICA’s published opinion erroneously conflates the two Richardson
prongs, but the error is harmless, as the ICA clearly held that
the LLEP conflicts with state law, and the Richardson preemption
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test is stated in the disjunctive. Therefore, we affirm the
ICA’s judgment on appeal, which affirmed the Circuit Court of
the Third Circuit’s1 (“circuit court”) Final Judgment.
II. Background
A. Article 16 of Chapter 14 of the Hawaiʻi County Code:
Lowest Law Enforcement Priority of Cannabis Ordinance
At issue in this appeal is whether Article 16 of Chapter 14
of the Hawaii County Code, entitled “Lowest Law Enforcement
Priority of Cannabis” (“LLEP”), is preempted in its entirety by
state law. Passed by voter initiative in 2008, the LLEP
provides the following, in full:
Article 16. Lowest Law Enforcement Priority of Cannabis
Ordinance.
Section 14-96. Purpose.
The purpose of this article is to:
(1) Provide law enforcement more time and resources to
focus on serious crimes;
(2) Allow our court systems to run more efficiently;
(3) Create space in our prisons to hold serious criminals;
(4) Save taxpayers money and provide more funding for
necessities such as education and health care; and
(5) Reduce the fear of prosecution and the stigma of
criminality from non-violent citizens who harmlessly
cultivate and/or use cannabis for personal, medicinal,
religious, and recreational purposes.
Section 14-97. Findings.
(a) The Institute of Medicine has found that cannabis
(marijuana) has medicinal value and is not a gateway drug.
(b) According to the U.S. Centers for Disease Control, the
use of cannabis (marijuana) directly results in zero deaths
per year.
(c) According to the National Institute of Drug Abuse
(NIDA), the marijuana eradication program has not stopped
cannabis cultivation in the county, rather the program has
only decreased the availability of the plant, which
increases its “street” value, resulting in more crime.
1
The Honorable Greg K. Nakamura presided.
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(d) The National Institute of Drug Abuse (NIDA) also
reported that a large increase in the use of
methamphetamine, crack cocaine, and other hard drugs was
related to the marijuana eradication program’s
implementation.
(e) According to public record, the ‘mandatory program
review’ for the marijuana eradication program, required by
section 3-16 of the County Charter to be performed at least
once every four years, has never been performed in the
thirty years that the program has existed.
(f) Law abiding adults are being arrested and imprisoned
for nonviolent cannabis offenses, clogging our court
dockets, overcrowding our prisons, tying up valuable law
enforcement resources and costing taxpayers hundreds of
thousands of dollars in Hawaiʻi County alone each year.
(g) The citizens of the Cities of Hailey, Idaho; Denver,
Colorado; Seattle, Washington; Columbia, Missouri; Eureka
Springs, Arkansas and Santa Barbara, Oakland, Santa Monica
and Santa Cruz, in California, and the citizens of Missoula
County, Montana, all voted for cannabis (marijuana) to be
placed as law enforcement’s lowest priority within the past
five years.
Section 14-98. Definitions.
“Adult” means any individual who is twenty one years
of age or older.
“Adult personal use” means the use of cannabis on
private property by adults. It does not include:
(1) Distribution or sale of cannabis;
(2) Distribution, sale, cultivation, or use of cannabis on
public property;
(3) Driving under the influence; or
(4) The commercial trafficking of cannabis, or the
possession of amounts of cannabis in excess of the amounts
defined as being appropriate for adult personal use.
“Marijuana”, (as defined in the Hawaiʻi Revised
Statutes of Chapter 712-1240) means cannabis.
“Cannabis” means all parts of the cannabis plant,
whether growing or not; the seeds thereof; the resin
extracted from any part of the cannabis plant; and every
compound, manufacture, salt, derivative, mixture or
preparation of the plant, its seeds, or its resin.
“Lowest Law Enforcement Priority” means a priority
such that all law enforcement activities related to all
offenses other than the possession or cultivation of
cannabis for adult personal use shall be a higher priority
than all law enforcement activities related to the adult
personal use of cannabis. The Lowest Law Enforcement
Priority regarding possession or cultivation of cannabis
shall apply to any single case involving twenty four or
fewer cannabis plants at any stage of maturity or the
equivalent in dried cannabis, where the cannabis was
intended for adult personal use.
The “dried equivalent” of twenty four or fewer
cannabis plants shall be presumed to be twenty four or
fewer ounces of usable cannabis, excluding stems and other
non active parts. A greater amount may also fall under the
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Lowest Law Enforcement Priority provisions described herein
if such amount is shown by competent evidence to be no more
than the dried equivalent of twenty four plants.
Section 14-99. Lowest law enforcement priority policy
relating to the adult personal use of cannabis.
(a) The cultivation, possession and use for adult personal
use of cannabis shall be the Lowest Law Enforcement
Priority for law enforcement agencies in the county.
(b) The council, the police commissioner, the chief of
police and all associated law enforcement staff, deputies,
officers and any attorney prosecuting on behalf of the
county shall make law enforcement activity relating to
cannabis offenses, where the cannabis was intended for
adult personal use, their Lowest Law Enforcement Priority.
Law enforcement activities relating to cannabis offenses
include but are not limited to the prosecution of cannabis
offenses involving only the adult personal use of cannabis.
(c) Neither the chief of police, the police commissioner,
nor any attorney prosecuting on behalf of the county, nor
any associated law enforcement staff, deputies, nor
officers shall seek, accept or renew any formal or informal
deputization or commissioning by a federal law enforcement
agency for the purpose of investigating, citing, or
arresting adults, nor for searching or seizing property
from adults for cannabis offenses subject to the Lowest Law
Enforcement Priority of cannabis where such activities
would be in violation of that policy, nor shall such
authorities exercise such powers that may be ancillary to
deputization or commissioning for another purpose.
(d) The council shall not authorize the acceptance or the
issuing of any funding that is intended to be used to
investigate, cite, arrest, prosecute, search or seize
property from adults for cannabis offenses in a manner
inconsistent with the county’s Lowest Law Enforcement
Priority policy.
Section 14-100. County prosecuting attorneys.
To the full extent allowed by the Constitution of the
State of Hawaiʻi, the people, through their county
government, request that neither the county prosecuting
attorney nor any attorney prosecuting on behalf of the
county shall prosecute any violations of the sections of
chapter 712-1240 of the Hawaiʻi Revised Statutes regarding
possession or cultivation of cannabis in a manner
inconsistent with the Lowest Law Enforcement Priority, as
described in section 14-98 and 14-99 of this article; in
cases where the amount possessed or grown is less than
twenty four plants or the dried equivalent, possession for
adult personal use shall be presumed.
Section 14-101. Expenditure of funds for cannabis
enforcement.
(a) Neither the council, nor the police commissioner, nor
the chief of police, nor any attorneys prosecuting on
behalf of the county, nor any associated law enforcement
staff, deputies, or officers shall spend or authorize the
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expenditure of any public funds for the investigation,
arrest, or prosecution of any person, nor for the search or
seizure of any property in a manner inconsistent with the
Lowest Law Enforcement Priority as defined in section 14-98
and 14-99 of this article.
(b) The council shall not support the acceptance of any
funds for the marijuana eradication program.
Section 14-102. Community oversight.
The council shall ensure the timely implementation of
this chapter by working with the chief of police and/or the
police commissioner to:
(1) Provide for procedures to receive grievances from
individuals who believe that they were subjected to law
enforcement activity contrary to the Lowest Law Enforcement
Priority of cannabis, which is described in section 14-98
and 14-99 of this article; and
(2) Publish a report semi-annually on the
implementation of this chapter every first day of June and
every first day of December, from this day forward, with
the first report being issued June 1, 2009. These reports
shall include but not be limited to: the number of all
arrests, citations, property seizures, and prosecutions for
all cannabis offenses in the county, the number of
complaints regarding marijuana eradication over-flights;
the breakdown of all cannabis arrests and citations by
race, age, specific charge, and classification as
infraction, misdemeanor, or felony, the estimated time and
money spent by the county on law enforcement and punishment
for adult cannabis offenses, and any instances of officers
or deputies assisting in state or federal enforcement of
adult cannabis offenses. These reports shall be published
with the cooperation of the county prosecuting attorney,
the chief of police, and all associated law enforcement
staff in providing needed data.
Section 14-103. Notification of local, state, and federal
officials.
(a) After the enactment of this article, the county clerk
shall send letters on an annual basis (every June 1st of
each year) to the mayor of the county, the county of Hawaiʻi
voters’ Congressional Delegation, Hawaiʻi’s U.S. senators,
the county of Hawaiʻi voters’ representatives in the Hawaiʻi
State Legislature, the Governor of Hawaiʻi, and the
President of the United States. This letter shall state;
“The citizens of the County of Hawaiʻi have passed an
initiative to make Cannabis offenses the Lowest Law
Enforcement Priority, where the Cannabis is intended for
adult personal use, and request that the federal and state
branches of government remove criminal penalties for the
cultivation, possession and use of Cannabis for adult
personal use; the citizens also request that Cannabis
policies here within the county of Hawaiʻi be dealt with
from our local law enforcement only.” The letters may also
state, be it the will of the county council; that according
to the three year study performed by the National Institute
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on Drug Abuse, more people used methamphetamine as a result
of the marijuana eradication program; they may also express
that methamphetamine is a growing problem in our community
and more help would be appreciated in that area, and that
the first action that would help in that area would be to
end the marijuana eradication program.
(b) This duty shall be carried out until state and federal
laws are changed accordingly.
Section 14-104. Statutory and constitutional
interpretation.
All provisions in this article shall only be implemented to
the full extent that the Constitution of the State of
Hawaiʻi and the Hawaiʻi Revised Statutes allows, and in the
event, and only in the event, that a court of competent
jurisdiction determines that any provision in any section
of this article may not be directed by voter initiative or
by action of the council, then that specific mandatory
provision only shall be deemed advisory and expression of
the will of the people that the provision shall be
implemented into law by whichever government branch or
official who has to the power to implement it, and that the
council shall take all actions within their power to work
with those branches of government to express the will of
the people and encourage, support, and request the
implementation of those provisions.
Section 14-105. Severability.
In the event, and only in the event, that a court of
competent jurisdiction should find one or more of the
sections, or parts of the sections of this article illegal,
or any provision of this article or the application thereof
to any person or circumstance is held invalid, the
remainder of the article and the application of such
provisions to other persons or circumstances shall not be
affected thereby.
B. Plaintiffs’ Complaints
Plaintiffs filed their “Complaint for Breach of Duty to
Enforce Article 16 Section 14-96 through Section 14-105 of the
Hawaii County Code and Request for Immediate Injuctive [sic]
Relief and Damages.” They named as Defendants the members of
the Hawaiʻi County Council (Dominic Yagong, Donald Ikeda, J.
Yoshimoto, Dennis Onishi, Fred Blas, Brittany Smart, Brenda
Ford, Angel Pilago, and Pete Hoffman); Hawaiʻi County Prosecutor
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Jay Kimura and Deputy Prosecutors Mitchell Roth and Charlene
Iboshi; Hawaiʻi County Mayor Billy Kenoi; Hawaiʻi County Chief of
Police Harry Kubojiri; and previous Hawaiʻi County Council
Members Kelly Greenwell, Guy Enriques, and Emily Naeʻole
(collectively, “Defendants”). Plaintiffs alleged that the
Defendants failed to comply with the LLEP.
Specifically, the Plaintiffs alleged that the Hawaiʻi County
Council continued “to appropriate cannabis enforcement funds to
the Police Department, Prosecutor’s Office, and the Department
of Corrections,” in violation of (1) Section 14-99’s prohibition
against “the acceptance or the issuing of any funding that is
intended to be used to investigate, cite, arrest, prosecute,
search or seize property for adults for cannabis offenses,” and
(2) Section 14-101’s prohibition on expending “public funds for
the investigation, arrest, or prosecution of any person, [or]
the search or seizure of any property” in a manner inconsistent
with the LLEP.
The Plaintiffs next asserted that the Hawaiʻi County Council
violated Section 14-102(2) by failing to issue a semi-annual
report in accordance with that section. The Plaintiffs also
alleged that the Hawaiʻi County Police Department did issue a
report, but the report was incomplete, and the Hawaiʻi County
Council did not ensure the report’s publication. The Plaintiffs
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also posited that all of the Defendants violated Section
14-102(1) by failing to provide procedures to receive grievances
from individuals.
The Plaintiffs alleged that the prosecutors and police
violated the LLEP by “continu[ing] to prosecute cannabis cases
where the amount processed or grown is less than 24 plants or
the dried equivalent of 24 ounces. . . .”
Additionally, the Plaintiffs asserted that the prosecutors
and police “failed to abide by section 14-101(a),” which
prohibits them from expending public funds “for the
investigation, arrest, or prosecution of any person, [or] for
the seizure of any property in a manner inconsistent with the
Lowest Law Enforcement Priority. . . .”
The Plaintiffs prayed for six items of injunctive relief.
First, they asked that the police and prosecutors be ordered to
immediately cease and desist investigations, arrests, or
prosecutions of any person, or the search and seizure of any
property, in a manner inconsistent with the LLEP. Second, they
asked that the Hawaiʻi County Council be ordered to establish
procedures for receiving grievances under Section 14-102(1).
Third, they asked that the Hawaiʻi County Council be ordered to
publish semi-annual reports. Fourth, they asked for general
compliance with the LLEP. Fifth, the Plaintiffs asked the court
to order the Hawaiʻi County Council to cease authorizing or
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accepting funds for the purposes of investigating, citing,
arresting, prosecuting, searching or seizing property, etc.,
related to cannabis-associated offenses as outlined in the LLEP,
and that all funds allotted to police and prosecutors be
withheld until it could be determined how much money had been
spent presumably in violation of the LLEP. Sixth, they asked
that the Hawaiʻi County Council be ordered to hold the Hawaiʻi
County Chief of Police accountable for upholding his oath of
office, or else remove the Chief of Police from office.
The Plaintiffs also prayed for $5,000,000 in punitive
damages for the “willful and malicious violation” of the LLEP by
the Defendants, as well as reasonable compensation to the
Plaintiffs for “their time and expenses comparable to that of
attorneys’ rates in the local community.”
C. Motions for Judgment on the Pleadings
Defendants Yagong, Ikeda, Yoshimoto, Onishi, Blas, Smart,
Ford, Pilago, Hoffmann, Roth, Iboshi, Kenoi, Kubojiri, Naeʻole,
Enriques, Greenwell and Kimura answered the Complaint, denying
each of the allegations, then filed Motions for Judgment on the
Pleadings.2 They argued that the Plaintiffs’ Complaint should be
dismissed “on the grounds that Section 14-96 of the Hawaiʻi
County Code is void because it conflicts with Part IV of Chapter
2
Greenwell and Kimura separately filed Answers, and separately
filed a Motion for Judgment on the Pleadings.
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712 of the Hawaii Revised Statutes,” and because it covers the
same subject matter as Hawaiʻi Revised Statutes (“HRS”)
§§ 712-1240 through -1257 (1993), entitled Offenses Related to
Drugs and Intoxicating Compounds.
In their opposition to Defendants Yagong, Ikeda, Yoshimoto,
Onishi, Blas, Smart, Ford, Pilago, Hoffmann, Roth, Iboshi,
Kenoi, Kubojiri, Naeʻole, and Enriques’ motion for judgment on
the pleadings,3 the Plaintiffs counter-argued that the LLEP “does
not attempt to prohibit or stop defendants from arresting or
prosecuting Chapter 712 violations, nor does it duplicate,
contradict or enter onto a subject that is fully occupied by
general law[;] it merely directs defendants to prioritize and
utilize their time and resources on more important community
issues according to the legislative statutory scheme.”
The circuit court granted the Defendant’s motions for
judgment on the pleadings and dismissed the case. In its
orders, the circuit court made the following factual findings:
1. Under Section 14-99 of the Hawaiʻi County Code,
law enforcement activities including prosecution involving
criminal offenses which fall within the definition of
Lowest Law Enforcement Priority are to have the lowest
priority.
3
Plaintiffs filed a separate opposition to Greenwell and Kimura’s
motion for judgment on the pleadings. The arguments in the opposition to
Greenwell and Kimura’s motion for judgment on the pleadings differ slightly
from the arguments made to the rest of the defendants, in that the Plaintiffs
argued that the LLEP was “passed by the people of Hawaiʻi County through a
legally binding initiative process,” that “[t]he thrust of this initiative is
fiscal responsibility,” not cannabis, and that the LLEP’s severability clause
renders any invalidated provisions advisory rather than mandatory.
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2. Under Article 16 of Chapter 14 of the Hawaiʻi
County Code, County of Hawaiʻi law enforcement personnel
are:
a) Prohibited from deputizing or commissioning
federal enforcement personnel from participating in the
investigation or prosecution of offenses which fall within
the definition of the Lowest Law Enforcement Priority.
Section 14-99(c), Hawaiʻi County Code.
b) Prohibited from obtaining funds for the
investigation or prosecution of offenses which fall within
the definition of the Lowest Law Enforcement Priority.
Section 14-99(d), Hawaiʻi County Code.
c) Prohibited from spending or authorizing the
spending of funds for the investigation of offenses which
fall within the definition of the Lowest Law Enforcement
Priority. Section 14-101(a), Hawaiʻi County Code.
3. Article 16, if enforced, would prevent the
investigation and prosecution of offenses which fall within
the definition of the Lowest Law Enforcement Priority under
Section 14-99 of the Hawaiʻi County Code.
4. Article 16, if enforced, would prevent the
investigation and prosecution in the County of Hawaiʻi of
the following criminal offenses defined under the Hawaiʻi
Penal Code: Section 712-1247(1)(e) Promoting a Detrimental
Drug in the First Degree; Section 712-1248(1)(c) Promoting
a Detrimental Drug in the Second Degree; and Section 712-
1249(1) Promoting a Detrimental Drug in the Third Degree.
The circuit court made the following conclusions of law:
1. A municipal ordinance may be preempted if it
covers the same subject matter embraced within a
comprehensive state statutory scheme disclosing an express
or implied intent to be exclusive and uniform throughout
the state or if the municipal ordinance conflicts with
state law.
2. The Penal Code of the State of Hawaiʻi is a
comprehensive code of penal laws that applies throughout
the State of Hawaiʻi and is uniformly applied throughout the
State. Hawaiʻi Revised Statutes, Section 701-106.
3. The provisions of Article 16 of Chapter 14,
Hawaiʻi County Code, are preempted by the provisions of
Title 37 of the Hawaiʻi Revised Statutes.
4. The provisions of Article 16 of Chapter 14,
Hawaiʻi County Code, are thus unenforceable.
The circuit court entered Final Judgment, and the
Plaintiffs timely appealed.
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D. ICA Appeal
On appeal, the Plaintiffs raised the following three points
of error, but only the first two remain pursued on certiorari:
1. The Trial Court erred when it determined the provisions
of Art. 16, Chapter 14 of the Hawaiʻi County Code
(hereinafter referred to as “Lowest Priority Ord.” or
“Ordinance”) were preempted by the provisions of Title 37,
Hawaiʻi Revised Statutes (“HRS”). The Ordinance does not
conflict, duplicate, contradict, or enter into an area
fully occupied by the provisions of HRS, Title 37; nor does
the Ordinance prohibit what the statute permits, or permit
what the statute prohibits. . . .
2. The Trial Court erred when it did not consider the
Severability Clause of Article 16. The Trial Court also
erred when it ruled that the entire Ordinance was
unenforceable. . . .
3. The Trial Court erred in the Findings of Fact,
Conclusions of Law, and Order (FOF) by not providing
sufficient facts to support the ultimate disposition of the
case. Material facts are omitted or misquoted. As a
result, the listed facts do not support the correct
application of the law. Facts cited by the Trial Court do
not logically lead to the Conclusions of Law. . . .
In a published opinion, the ICA affirmed the circuit
court’s Final Judgment. Ruggles v. Yagong, 132 Hawaii 511, 323
P.3d 155 (2014). The ICA held the following:
We conclude that the LLEP conflicts with, and is thus
preempted by state laws governing the investigation and
prosecution of alleged violations of the Hawaiʻi Penal Code
concerning the adult personal use of cannabis. We further
conclude that the LLEP covers the adult personal use of
cannabis, which is the same subject matter that the
legislature intended to govern under HRS Chapter 329
provisions for the regulation of controlled substances.
The LLEP is therefore preempted by the Hawaiʻi Penal Code
and HRS Chapter 329, Hawaiʻi’s Uniform Controlled Substances
Act.
132 Hawaii at 516, 323 P.3d at 160. The ICA did not address the
LLEP’s severability clause. The Plaintiffs now challenge the
ICA’s holding that the entirety of the LLEP is in conflict with
state law.
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III. Standard of Review
An appellate court reviews a circuit court’s order granting
a motion for judgment on the pleadings de novo. See Hawaiʻi Med.
Ass’n v. Hawaiʻi Med. Serv. Ass’n, Inc., 113 Hawaiʻi 77, 91, 148
P.3d 1179, 1193 (2006).
IV. Discussion
On certiorari, the Plaintiffs argue
(1) that there is no conflict between the Ordinance and
Hawaiʻi Revised Statutes, (2) that if there is a conflict,
there still may be no preemption of the County Ordinance by
State general laws, and (3) that even if there is
preemption it is only of those particular sections or parts
of sections in which a conflict is found, and (4) that if
in fact there is some error in the Ordinance, it is due to
actions of the Defendant-Appellees and it is their
responsibility to fix it.
We address each of these arguments seriatim.
A. Preemption under the Second Richardson Prong
First, the Plaintiffs argue that “there is no conflict
between the Ordinance and Hawaii Revised Statutes. . . .” We
disagree and affirm the ICA’s clear holding that “the LLEP
conflicts with, and is thus preempted by state law governing the
investigation and prosecution of alleged violations of the
Hawaii Penal Code concerning the adult personal use of
cannabis,” namely HRS Chapter 329 (the Hawaii Uniform Controlled
Substances Act) and HRS §§ 712-1247(1)(e) (1993) (promoting a
detrimental drug in the first degree); -1248(1)(c) (1993)
(promoting a detrimental drug in the second degree); and
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-1249(1) (1993) (promoting a detrimental drug in the third
degree). 132 Hawaii at 515-16, 323 P.3d at 159-60.
Expanding on the ICA’s analysis, the LLEP also conflicts
with state law requiring the state attorney general and county
prosecuting attorney to investigate and prosecute violations of
the statewide Penal Code. HRS § 28-2.5(b) (2009) delineates the
investigative powers of the attorney general and county
prosecuting attorneys when conducting criminal investigations.
Pursuant to HRS § 28-2 (2009), the attorney general “shall be
vigilant and active in detecting offenders against the laws of
the State, and shall prosecute the same with diligence.” HRS
§ 26-7 (2009) does state that “unless otherwise provided by law,
[the department of the attorney general shall] prosecute cases
involving violations of state laws. . . .” The phrase as
“otherwise provided by law” does not, however, countenance laws
such as the LLEP. Rather, it recognizes that, although “the
attorney general, as the chief legal officer for the State,” has
“the ultimate responsibility for enforcing penal laws of
statewide application,” “[t]he public prosecutor . . . has been
delegated the primary authority and responsibility for
initiating and conducting criminal prosecutions within his
county jurisdiction.” Amemiya v. Sapienza, 63 Haw. 424, 427,
629 P.2d 1126, 1129 (1981). Thus, although the county
prosecutor has been delegated primary prosecutorial duties,
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under Hawaii County Charter § 9-3(a)(2) (2010), the duties of
the prosecuting attorney for the County of Hawaii include
“[p]rosecut[ing] offenses against the laws of the State under
the authority of the attorney general of the State.” Therefore,
county laws such as the LLEP cannot usurp the attorney general’s
duty, delegated to the prosecuting attorney, to prosecute
violations of the statewide penal code.
Therefore, the ICA correctly ruled that the LLEP conflicts
with, and is thus preempted by, state law governing the
investigation and prosecution of alleged violations of the
Hawaii Penal Code.
B. Preemption under the First Richardson Prong
Second, the Plaintiffs argue “there still may be no
preemption of the County Ordinance by State general laws,”
pointing to the first prong of the Richardson test, which states
that a “municipal ordinance may be preempted” if it covers the
same subject matter embraced within a comprehensive state
statutory scheme disclosing an express or implied intent to be
exclusive and uniform throughout the state, or if the ordinance
conflicts with state law. Richardson, 76 Hawaii at 62, 868 P.2d
at 1209 (emphasis added). The Plaintiffs “disagree that the
Penal Code of the State of Hawaiʻi is comprehensive, even if
uniformly applied throughout the state.” They contend, “Nothing
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was expressly mentioned in the statutes as to the Hawaiʻi Penal
Code’s exclusivity.” (Emphasis in original). We read this
argument as challenging the ICA’s conclusion that the LLEP
“covers . . . the same subject matter that the legislature
intended to govern under HRS Chapter 329 provisions for the
regulation of controlled substances.” 132 Hawaii at 516, 323
P.3d at 160.
The ICA did not need to address Richardson’s first prong
because it had already correctly determined that the ordinance
was preempted under the second prong. Furthermore, the ICA’s
articulation of Richardson’s first prong was incomplete because
the ICA did not analyze whether HRS Chapter 329 is a
“comprehensive statutory scheme disclosing an express or implied
intent to be exclusive and uniform throughout the state. . . .”
Id. We note that the ICA incorrectly views the Richardson
preemption test as a single test it calls the “‘comprehensive
statutory-scheme’ test.” Ruggles, 132 Hawaii at 514, 323 P.3d
at 158. In actuality, as noted, it is a two-prong test.
With respect to the first prong, we need not address
whether the LLEP ordinance is field-preempted by state law. We
note that several other jurisdictions have passed LLEP
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ordinances4, but there are no published opinions addressing the
issue. We also need not address, in general, whether a
municipal drug ordinance is field-preempted by the state Uniform
Controlled Substances Act. We note that such a holding is rare
across the nation. Of the forty-eight5 states that have adopted
some form of the Uniform Controlled Substances Act, only one has
held that its state controlled substances act “occupies the
field of penalizing crimes involving controlled substances, thus
impliedly preempting” a municipal ordinance, which, in that
case, provided for the forfeiture of vehicles used to acquire or
attempt to acquire controlled substances. O’Connell v. City of
Stockton, 162 P.3d 583, 589, 590 (Cal. 2007). In so holding,
the Supreme Court of California examined, in “tedious” detail,
the “comprehensive nature of [its state controlled substances
act] in defining drug crimes and specifying penalties (including
forfeiture). . . .” 162 P.3d at 588, 589. The O’Connell Court
considered the California Uniform Controlled Substances Act “so
thorough and detailed as to manifest the Legislature’s intent to
4
According to the Marijuana Policy Project, the following cities
and counties passed LLEP ordinances: Seattle and Tacoma, Washington;
Oakland, Santa Barbara, Santa Cruz, San Francisco, Santa Monica, and West
Hollywood, California; Eureka Springs, Arkansas; Missoula County, Montana;
Denver, Colorado; Fayetteville, Arkansas; Hailey, Idaho, and Kalamazoo and
Ypsilanti, Michigan. Marijuana Policy Project, Lowest Law Enforcement
Priority Jurisdictions, available at http://www.mpp.org/reports/lowest-law-
enforcement.html (last visited May 22, 2015).
5
See 9 West’s Hawaii Revised Statutes Annotated, 2013 Pocket Part
269-270 (2013).
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preclude local regulation.” 162 P.3d at 589. There is no
similar analysis into the comprehensive nature of HRS Chapter
329 in the ICA’s opinion. Compare O’Connell, 162 P.3d at
588-89, with Ruggles, 132 Hawaii at 515-16, 323 P.3d at 159-60.
The ICA did not need to reach the field preemption issue,
however, as the Richardson test is stated in the disjunctive,
and the ICA had already correctly held that the LLEP conflicted
with, and was therefore preempted by, HRS Chapter 329 and HRS
§§ 712-1247(1)(e), -1248(1)(c), and -1249(1). Therefore, we
overrule the ICA’s opinion only to the extent it erroneously
included within its conflict analysis an incomplete articulation
of Richardson’s field-preemption prong. As it is unnecessary to
address the issue, we make no determination as to whether
Chapter 329 field-preempts the LLEP under the first Richardson
prong.
C. The Severability Clause
Third, the Plaintiffs point out that Section 14-105
contains a severability clause, which reads
In the event, and only in the event, that a court of
competent jurisdiction should find one or more of the
sections, or parts of the sections of this article illegal,
or any provision of this article or the application thereof
to any person or circumstance is held invalid, the
remainder of the article and the application of such
provisions to other persons or circumstances shall not be
affected thereby.
Plaintiffs argue, “Neither the circuit court nor the
intermediate court of appeals have addressed any section of the
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Ordinance, other than the following subsections: HCC
§ 14-99(c); HCC § 14-99(d); and HCC § 101(a).” Section 14-99(c)
prohibits county prosecuting attorneys and law enforcement from
being deputized or commissioned by a federal law enforcement
agency for investigating cannabis offenses. Sections 14-99(d)
and -101(a) prohibit the Hawaii County Council, county
prosecuting attorneys, or law enforcement from using public
funds for the investigation and prosecution of cannabis
offenses. Presumably, the Plaintiffs intend for only these
provisions to be severed from the LLEP and invalidated.
In this case, however, the LLEP’s overarching mandate is
the decriminalization of the adult personal use of marijuana.
Section 14-96(5) states that the purpose of the LLEP is to
“[r]educe the fear of prosecution and the stigma of criminality
from non-violent citizens who harmlessly cultivate and/or use
cannabis for personal, medicinal, religious, and recreational
purposes.” This purpose is supported by the following finding:
“Law abiding adults are being arrested and imprisoned for
nonviolent cannabis offenses, clogging our court dockets,
overcrowding our prisons, tying up valuable law enforcement
resources and costing taxpayers hundreds of thousands of dollars
in Hawaiʻi County alone each year.” Section 14-97(f).
Section 14-98 defines “Lowest Law Enforcement Priority” in
a way that calls for law enforcement officials to prioritize the
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possession and cultivation of 24 or fewer marijuana plants (or
the possession of 24 or fewer ounces of usable cannabis) by
persons over 21 years of age on private property at the absolute
lowest level. In service of decriminalizing adult personal use
of cannabis, the following emphasized provisions directly
prohibit the police and prosecutors from investigating and
prosecuting adult personal use of cannabis, as defined under
Section 14-98. The following emphasized provisions also
prohibit the county, police, and prosecutors from engaging in
indirect activities (such as using public funds and seeking
federal deputization) related to the investigation and
prosecution of adult personal use of cannabis, as defined under
Section 14-98:
Section 14-99. Lowest law enforcement priority policy
relating to the adult personal use of cannabis.
(a) The cultivation, possession and use for adult personal
use of cannabis shall be the Lowest Law Enforcement
Priority for law enforcement agencies in the county.
(b) The council, the police commissioner, the chief of
police and all associated law enforcement staff, deputies,
officers and any attorney prosecuting on behalf of the
county shall make law enforcement activity relating to
cannabis offenses, where the cannabis was intended for
adult personal use, their Lowest Law Enforcement Priority.
Law enforcement activities relating to cannabis offenses
include but are not limited to the prosecution of cannabis
offenses involving only the adult personal use of cannabis.
(c) Neither the chief of police, the police commissioner,
nor any attorney prosecuting on behalf of the county, nor
any associated law enforcement staff, deputies, nor
officers shall seek, accept or renew any formal or informal
deputization or commission by a federal law enforcement
agency for the purpose of investigating, citing, or
arresting adults, nor for searching or seizing property
from adults for cannabis offenses subject to the Lowest Law
Enforcement Priority of cannabis where such activities
would be in violation of that policy, nor shall such
authorities exercise such powers that may be ancillary to
deputization or commissioning for another purpose.
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(d) The council shall not authorize the acceptance or the
issuing of any funding that is intended to be used to
investigate, cite, arrest, prosecute, search or seize
property from adults for cannabis offenses in a manner
inconsistent with the county’s Lowest Law Enforcement
Priority policy.
Section 14-100. County prosecuting attorneys.
To the full extent allowed by the Constitution of the
State of Hawaiʻi, the people, through their county
government, request that neither the county prosecuting
attorney nor any attorney prosecuting on behalf of the
county shall prosecute any violations of the sections of
chapter 712-1240 of the Hawaiʻi Revised Statutes regarding
possession or cultivation of cannabis in a manner
inconsistent with the Lowest Law Enforcement Priority, as
described in section 14-98 and 14-99 of this article; in
cases where the amount possessed or grown is less than
twenty four plants or the dried equivalent, possession for
adult personal use shall be presumed.
Section 14-101. Expenditure of funds for cannabis
enforcement.
(a) Neither the council, nor the police commissioner, nor
the chief of police, nor any attorneys prosecuting on
behalf of the county, nor any associated law enforcement
staff, deputies, or officers shall spend or authorize the
expenditure of any public funds for the investigation,
arrest, or prosecution of any person, nor for the search or
seizure of any property in a manner inconsistent with the
Lowest Law Enforcement Priority as defined in section 14-98
and 14-99 of this article.
(b) The council shall not support the acceptance of any
funds for the marijuana eradication program.
Also of note, miscellaneous provisions in the LLEP direct
further action premised upon the validity of the Lowest Law
Enforcement Policy. First, Section 14-102, entitled “Community
oversight,” directs the Hawaiʻi County Council to provide
“procedures to receive grievances from individuals who believe
that they were subjected to law enforcement activity contrary to
the Lowest Law Enforcement Priority of cannabis,” and to
“[p]ublish a report semi-annually on the implementation of this
chapter. . . .” Second, Section 14-103, entitled “Notification
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of local, state, and federal officials,” requires the county
clerk to send an annual letter to local, state, and federal
government officials, requesting “that Cannabis policies here
within the county of Hawaiʻi be dealt with from our local law
enforcement only.”
In short, every section of the LLEP (with the exception of
non-substantive Section 14-104, entitled “Statutory and
constitutional interpretation,” and non-substantive Section
14-105, entitled “Severability”) directs the county, county
officials, police, and/or prosecutors to cease investigating and
prosecuting violations of HRS 329, which lists marijuana as a
controlled substance under Schedule I, and HRS
§§ 712-1247(1)(e), -1248(1)(c), and -1249(1), which criminalize
knowing possession of marijuana, in amounts ranging from “any
amount” to “one pound or more.” Therefore, invalidation of all
of the LLEP was necessary. Every substantive section of the
LLEP conflicts with, and is therefore preempted by, state law.
D. The Effect of Section 14-104 of the LLEP
Fourth, the Plaintiffs point out that Section 14-104,
entitled “Statutory and constitutional interpretation,” provides
that if any part of the LLEP is invalidated, “then that specific
mandatory provision only shall be deemed advisory and expression
of the will of the people that the provision shall be
implemented into law by whichever government branch or official
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who has the power to implement it,” thus placing the
responsibility upon the Defendants to “fix” the LLEP to make it
enforceable. As the entire LLEP conflicts with, and is
therefore preempted by, state law, however, no part of it is
amenable to implementation by the Defendants.
Therefore, we respectfully disagree with the Dissent’s
position that portions of the LLEP should remain as “advisory
ordinances.” A county’s power to promulgate ordinances is
governed by Article VIII, Section 1 of the Constitution of the
State of Hawaii, which states, “The legislature shall create
counties, and may create other political subdivisions within the
State, and provide for the government thereof. Each political
subdivision shall have and exercise such powers as shall be
conferred under general laws.” (Emphasis added.) Thus,
pursuant to the Hawaii Constitution, a county’s powers are
limited to those conferred by the legislature under general
laws. The legislature has outlined the “General powers and
limitations of the counties” in HRS § 46-1.5 (2012). HRS
§ 46-1.5(13) (2012) provides
Each county shall have the power to enact ordinances deemed
necessary to protect health, life, and property, and to
preserve the order and security of the county and its
inhabitants on any subject or matter not inconsistent with,
or tending to defeat, the intent of any state statute where
the statute does not disclose an express or implied intent
that the statute shall be exclusive or uniform throughout
the State. . . .
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As noted earlier, we need not address whether Chapter 329
discloses a “comprehensive statutory scheme disclosing an
express or implied intent to be exclusive or uniform throughout
the state,” the first Richardson prong, which parallels this
subsection. Even assuming Chapter 329 does not disclose such a
scheme, subsection (13) authorizes county ordinances “to protect
health, life, and property, and to preserve the order and
security of the county and its inhabitants” as long as they are
“not inconsistent with, or [do not] tend[] to defeat, the intent
of [Chapter 329].” As we held earlier, the purported “advisory
ordinances” in the LLEP conflict with Chapter 329 and do not
meet this standard.
Moreover, Section 14-104, which the dissent posits can
remain on the books as an advisory statement expressing the will
of the people, is not merely advisory. Rather, it states “that
the provision shall be implemented into law by whichever
government branch or official who has the power to implement
it. . . .” (Emphasis added). It also states that “the council
shall take all actions within their power to work with those
branches of government to express the will of the people and
encourage, support, and request the implementation of those
provisions.” Id. (emphasis added). Therefore, the section is
actually mandatory, not advisory.
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As noted earlier, state law places responsibility for
enforcing penal laws of statewide application on the attorney
general. See HRS §§ 26-7, 28-2, 28-2.5. Primary responsibility
for initiating and conducting criminal prosecutions within
counties is further delegated to county prosecuting attorneys.
See Amemiya, 63 Haw. at 427, 629 P.2d at 1129. Not only does
the LLEP conflict with state law, the mandatory language of
Section 14-104 creates confusion regarding the duties of
government officials.
Finally, in HRS § 50-15 (2012), the legislature clearly
provided that “[n]otwithstanding the provisions of this chapter
[governing Charter Commissions], there is expressly reserved to
the legislature the power to enact all laws of general
application throughout the State on matters of concern and
interest . . ., and neither a charter nor ordinances adopted
under a charter shall be in conflict therewith.” (Emphasis
added). As the “advisory ordinances” contained in the LLEP
conflict with State law, they cannot stand.
V. Conclusion
The LLEP is preempted solely because it “conflicts with
state law.” We need not, and do not, address whether the LLEP
“covers the same subject matter embraced within a comprehensive
state statutory scheme disclosing an express or implied intent
to be exclusive and uniform throughout the state . . . .”
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Richardson, 76 Hawaii at 62, 868 P.2d at 1209. We also hold
that the entire LLEP is invalidated because it conflicts with,
and is therefore preempted by, state law. With these
clarifications made, we affirm the ICA’s judgment on appeal,
which affirmed the circuit court’s Final Judgment.
Michael D. Ruggles, /s/ Mark E. Recktenwald
Rev. Nancy Waite Harris,
Kenneth V. Miyamoto-Slaughter, /s/ Paula A. Nakayama
Wendy Tatum, David Tatum,
and Robert S. Murray /s/ Sabrina S. McKenna
petitioners pro se
Michael J. Udovic
for respondents
27
Ruggles v. Yagong.
Court: Hawaii Supreme Court
Date filed: 2015-06-25
Citations: 135 Haw. 411, 353 P.3d 953, 2015 Haw. LEXIS 140
Copy CitationsCombined Opinion