NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2020
08:16 AM
Dkt. 45 AMMO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant,
v.
NOGUCHI MILNE, Defendant-Appellee
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(CR. NO. 1FFC-XX-XXXXXXX)
AMENDED MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from an "Order Granting Defendant's Oral Motion to Dismiss Count
II without Prejudice" (Dismissal Order) entered on July 26, 2019,
by the Family Court of the First Circuit (Family Court).1
In this case, the State filed a Complaint against
Defendant-Appellee Noguchi Milne (Milne), charging him with two
counts: Abuse of Family or Household Members with respect to
Complaining Witness #1 (CW1), in violation of Hawaii Revised
Statutes (HRS) § 709-906(1) and (5)2 (Count 1); and Assault in
1
The Honorable Kevin A. Souza presided.
2
HRS § 709-906 (2014) provides, in relevant part:
(1) It shall be unlawful for any person, singly
or in concert, to physically abuse a family or
household member or to refuse compliance with the
(continued...)
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the Third Degree with respect to Complaining Witness #2 (CW2), in
violation of HRS § 707-712(1)(a)3 (Count 2). Both charges are
based on alleged conduct occurring on the same date.
On appeal, the State contends that the Family Court
erred by dismissing Count 2 on the basis that it lacked subject
matter jurisdiction over Count 2.
We hold the Family Court has jurisdiction with regard
to Count 2, and therefore, we vacate the Dismissal Order and
remand for further proceedings.
I. Background
On July 22, 2019, at a trial call for this case, the
State requested a continuance because CW1 and CW2 failed to
appear despite being served with subpoenas. The Family Court
granted a continuance over Milne's objection. Milne then orally
moved to dismiss Count 2 for lack of subject matter jurisdiction.
Milne asserted that CW2 was the father of CW1, CW1 is Milne's
girlfriend, and that CW2 and Milne did not live or reside in the
same household.
When asked by the Family Court its basis for subject
matter jurisdiction over Count 2, the State requested a written
motion so that it could respond in writing and also so that it
could have the input of the Deputy Prosecuting Attorney who
charged the case as to why Count 2 was included. Instead, the
Family Court asked the State to review HRS § 571-14. HRS Chapter
2
(...continued)
lawful order of a police officer under subsection (4).
The police, in investigating any complaint of abuse of
a family or household member, upon request, may
transport the abused person to a hospital or safe
shelter.
. . . .
(5) Abuse of a family or household member and
refusal to comply with the lawful order of a police
officer under subsection (4) are misdemeanors[.]
3
HRS § 707-712(1)(a) (2014) provides, in part: "(1) A person commits
the offense of assault in the third degree if the person: (a) Intentionally,
knowingly, or recklessly causes bodily injury to another person[.]"
2
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571 addresses Family Courts, and HRS § 571-14(b), provides:
HRS § 571-14 Jurisdiction; adults.
. . .
(b) The court shall have concurrent jurisdiction with the
district court over violations of sections 707-712, 707-717,
707-722, 708-822, 708-823, 710-1010.5, 711-1106, and
711-1106.5 when multiple offenses are charged through
complaint or indictment and at least one offense is a
violation of an order issued pursuant to chapter 586 or a
violation of section 709-906.
HRS § 571-14(b) (2014) (emphases added).4
In addressing the Family Court's request to review HRS
§ 571-14, the State asserted:5
And, your honor, under section (9)(b) the -- the court
would have concurrent jurisdiction over the Assault
Third given the -- it'd be one of the offenses in this
case would be under the jurisdiction of Family Court,
which would be the Count 1.
In turn, Milne's counsel responded:
. . . my response to that is that under subsection
(9)(b) is that that's if it was as to pertaining to
the same complaining witness. However, in this matter
the two different counts are represented by offenses,
again [sic] two different complaining witnesses.
Therefore the court does not have jurisdiction over
Count 2 relating to the second complaining witness.
The Family Court asked Milne's counsel "where do you get the
limiting language that it has to relate to the same complaining
witness?" Milne's counsel answered that "there is no limiting
language but that is the defense's argument." The State asserted
that HRS § 571-14(b) contains no language that limits the
statute's provisions to the same CW.
The Family Court then orally ruled as follows:
The court reads 571-14 as permissive and not mandatory
as to subsection (b), and because the complaining
witness in Count 2 is not a family or household member
to Mr. Milne, the court is, based on the
representations of counsel, going to be dismissing
4
As noted above, Milne was charged with violating HRS § 707-712
(Assault in the Third Degree) as to CW2 and charged with violating HRS § 709-
906 (Abuse of Family or Household Members) as to CW1.
5
In the transcript of the proceeding, the Family Court and both
counsel referred to "subsection 9(b)," but it appears that they all were
referencing HRS § 571-14(b).
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Count 2 without prejudice and the State would be free
to refile Count 2 in District Court as to that
complaining witness.
Subsequently, on July 26, 2019, the Family Court
entered the written Dismissal Order which contains no findings
and states in relevant part:
After consideration of the arguments of counsels, this
Court granted the Defendant's oral motion to dismiss Count
II for lack of Subject Matter Jurisdiction, and it is
further ordered that Count II be dismissed without
prejudice.
IT IS HEREBY ORDERED that the Defendant's Oral Motion
to dismiss Count II is GRANTED. Furthermore, Count II is
dismissed without prejudice for lack of Subject Matter
Jurisdiction.
(Emphasis added).
II. Interpretation of HRS § 571-14(b)
"Statutory interpretation is a question of law
reviewable de novo." State v. Castillon, 144 Hawai#i 406, 411,
443 P.3d 98, 103 (2019) (citing Panado v. Bd. of Trs., Emps.'
Ret. Sys., 134 Hawai#i 1, 10, 332 P.3d 144, 153 (2014)).6 In
reviewing questions of statutory interpretation, we are guided by
the following principles:
First, the fundamental starting point for
statutory-interpretation is the language of the
statute itself. Second, where the statutory language
is plain and unambiguous, our sole duty is to give
effect to its plain and obvious meaning. Third,
implicit in the task of statutory construction is our
foremost obligation to ascertain and give effect to
the intention of the legislature, which is to be
obtained primarily from the language contained in the
statute itself. Fourth, when there is doubt,
doubleness of meaning, or indistinctiveness or
6
Milne asserts the Family Court’s decision to decline jurisdiction
should be reviewed for an abuse of discretion, relying on NB v. GA, 133
Hawai#i 436, 444, 329 P.3d 341, 349 (App. 2014). However, Milne’s reliance on
NB is misplaced as NB did not address the issue of concurrent jurisdiction.
In NB, this court vacated the Family Court’s decision to decline jurisdiction
based on its lack of findings on statutory factors that made Hawaii an
"inconvenient forum" pursuant to HRS § 583A–207, which provides, in part: "A
court of this State which has jurisdiction under this chapter to make a
child-custody determination may decline to exercise its jurisdiction at any
time if it determines that it is an inconvenient forum under the circumstances
and that a court of another state is a more appropriate forum." HRS § 583A–
207(a) (2006).
Here, the Family Court's written order states that it lacks subject
matter jurisdiction. This is a question of law.
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uncertainty of an expression used in a statute, an
ambiguity exists.
Id. (quoting Panado, 134 Hawai#i at 10-11, 332 P.3d at 153-54).
It appears that Milne now concedes on appeal that the
Family Court had concurrent subject matter jurisdiction over
Count 2 as long as Count 1 was pending.7 We conclude this
concession is proper. Here, under the plain language of HRS
§ 571-14(b), the Family Court has concurrent jurisdiction with
the district court over violations of specified offenses,
including HRS § 707-712 (Assault in the Third Degree), when
multiple offenses are charged in a complaint or an indictment and
at least one offense is, inter alia, a violation of HRS § 709-906
(Abuse of Family or Household Members). The Complaint in this
case meets the requirements for concurrent jurisdiction under HRS
§ 571-14(b).
Even assuming there is an ambiguity as to whether HRS
§ 571-14(b) limits charges of multiple offenses to the same
complaining witness, as Milne argued below, the legislative
history reflects otherwise.
When there is ambiguity in a statute, "the meaning of
the ambiguous words may be sought by examining the
context, with which the ambiguous words, phrases, and
sentences may be compared, in order to ascertain their
true meaning." Moreover, the courts may resort to
extrinsic aids in determining legislative intent, such
as legislative history, or the reason and spirit of
the law.
Castro v. Melchor, 142 Hawai#i 1, 24, 414 P.3d 53, 76 (2018)
(citation omitted).
Subsection (b) to HRS § 571-14 was added in 1998 by way
of Act 64. Relevant legislative history for S.B. No. 2697, which
became Act 64, provides:
The purpose of this bill . . . is to modify the
jurisdiction of the family, district and circuit
courts to rectify jurisdictional conflicts resulting
from criminal and other related activities involving
children, parents, spouses, and other family members.
7
Milne's answering brief incorrectly refers to himself as the
"Appellant." Moreover, the answering brief does not accurately cite or quote
HRS § 571-14 in several instances.
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Your Committee finds that there is a great need
for concurrent jurisdiction to streamline the judicial
process in family related cases which are assigned to
separate courts due to the nature of the offense. For
example, if a person assaults another individual while
violating a family court restraining order, under
current law the the [sic] two violations of law would
be heard in separate courts. Your Committee further
finds that concurrent jurisdiction will make the
judicial process in these instances more efficient and
effective. However, your Committee finds that the
provisions of this bill, as submitted, are too broad
to provide adequate direction as to which court would
have jurisdiction in the types of cases which are
often assigned to both family court and district or
circuit court.
Sen. Stand. Comm. Rep. No. 2649, in 1998 Senate Journal, at 1071
(emphasis added).8 This legislative history shows that the
Legislature intended to provide for concurrent jurisdiction under
Act 64, even when the multiple charged offenses involve different
complaining witnesses.
Thus, the Family Court erred in its Dismissal Order by
dismissing Count 2 for lack of subject matter jurisdiction.
III. The Family Court Did Not Exercise Discretion
Milne's main contentions on appeal are based on what
the Family Court stated orally, that the court "reads [HRS §]
571-14 as permissive and not mandatory as to subsection (b)."
Notwithstanding that the Family Court's written Dismissal Order
states that it dismissed Count 2 for "lack of Subject Matter
Jurisdiction," Milne argues the Family Court "did not abuse its
8
Another committee report for S.B. No. 2697 states, in relevant part:
Your Committee finds that one incident can give rise
to several different charges. Some of these charges, like a
violation of a family court restraining order or misdemeanor
abuse of family and household member, fall under the
jurisdiction of the family court, while others may fall
under the jurisdiction of the circuit or district courts.
Current law prevents the State from bringing all the related
charges at one time before one court.
This bill addresses that problem by giving the
circuit, district, and family courts concurrent
jurisdictions over certain offenses[.]
House Stand. Comm. Rep. No. 1055-98, in 1998 House Journal, at 1482.
Ultimately, Act 64 provided for concurrent jurisdiction over the specified
offenses in the family court and district court (but not the circuit court).
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discretion when it declined to exercise its concurrent
jurisdiction over Count 2 because based on the State's
representations, it was uncertain whether the State would have
been able to proceed in both counts at the next trial call, and
[the] State failed to show that except for different
complainants, the evidence in both counts was the same." Milne
makes speculative arguments as to why the Family Court allegedly
decided not to exercise its concurrent jurisdiction, based on
Milne's assertion of different scenarios that could occur and
purported inferences that have no basis in the record. In short,
notwithstanding the oral statements of the Family Court, the
written Dismissal Order filed thereafter is based on a lack of
subject matter jurisdiction.
Given the record in this case, we need not address
whether the Family Court has discretion to decline its concurrent
jurisdiction. Even if the Family Court had such discretion,
there were no proper findings or explanation by the Family Court
on that issue.9
9
The notice of appeal was filed on August 23, 2019. On November 22,
2019, the Family Court filed "Findings of Fact and Conclusions of Law"
(11/22/19 FOF/COL) related, in part, to the Dismissal Order. Here, where an
adult is charged with a crime, the Hawai#i Rules of Penal Procedure (HRPP)
govern. See State v. Gonsales, 91 Hawai#i 446, 449, 984 P.2d 1272, 1275
(1999); Hawai#i Family Court Rules (HFCR) Rule 81(c) ("Cases for adults
charged with the commission of a crime coming within the jurisdiction of the
family courts shall be governed by the Hawai #i Rules of Penal Procedure.").
HRPP Rule 23(c) provides for a court to make findings "[i]n a case tried
without a jury" and if requested, to make special findings "at any time prior
to sentence." HRPP Rule 23(c) does not apply here to authorize the 11/22/19
FOF/COL pertaining to the Dismissal Order. In short, the Family Court did not
have jurisdiction to enter the 11/22/19 FOF/COL related to the Dismissal
Order.
None of the appellate briefs in this appeal, all filed after the
11/22/19 FOF/COL was entered below, make any reference to the 11/22/19
FOF/COL. Even if we were to consider the findings therein related to the
Dismissal Order, the Family Court stated in relevant part:
[b]ecause Family Court is a Court of limited jurisdiction,
and because the Defendant and Complaining Witness in Count
II are not family or household members, the Court granted
Defendant's Oral Motion to Sever and Dismiss Count II
without prejudice. The Court informed the State that they
may refile the matter in District Court.
(continued...)
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IV. Conclusion
Based on the foregoing, the "Order Granting Defendant's
Oral Motion to Dismiss Count II without Prejudice" entered on
July 26, 2019, by the Family Court of the First Circuit, is
vacated. This case is remanded to the Family Court for further
proceedings.
DATED: Honolulu, Hawai#i, October 30, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Chad M. Kumagai,
Deputy Prosecuting Attorney, /s/ Katherine G. Leonard
for Plaintiff-Appellant. Associate Judge
William H. Jameson, Jr., /s/ Clyde J. Wadsworth
Deputy Public Defender, Associate Judge
for Defendant-Appellee.
9
(...continued)
Thus, similar to the Dismissal Order, this indicates the Family Court
dismissed Count II based on a determination that it lacked subject matter
jurisdiction.
8