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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
07-MAR-2023
08:28 AM
Dkt. 21 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
CITY AND COUNTY OF HONOLULU, by the DEPARTMENT OF THE
CORPORATION COUNSEL, Petitioner/Appellant-Appellant,
vs.
HONOLULU POLICE COMMISSION, Respondent/Appellee-Appellee,
and
LOUIS M. KEALOHA, Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; Civil No. 1CC191000907)
MARCH 7, 2023
RECKTENWALD, C.J., McKENNA, WILSON, AND EDDINS, JJ., AND
CIRCUIT JUDGE KAWANO, IN PLACE OF NAKAYAMA, J., RECUSED
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This opinion addresses whether Chief Louis Kealoha
(“Kealoha”) was entitled to a city-paid attorney to defend him
against federal criminal charges. Kealoha was Chief of Police
for the Honolulu Police Department (“HPD”). In 2017 and 2018,
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indictments were filed in the United States District Court for
the District of Hawaiʻi against Kealoha, his wife Katherine
Kealoha (together, “the Kealohas”), and additional HPD officers.
Kealoha asked the City and County of Honolulu (“the City”) to
provide him with a defense attorney. The Department of the
Corporation Counsel of the City and County of Honolulu (“Corp
Counsel”) recommended that the Honolulu Police Commission (“the
Commission”) deny the request. After a contested case hearing,
the Commission ruled Kealoha was entitled to representation.
The Commission decided Kealoha met the requirements for
representation under Hawaiʻi Revised Statutes (“HRS”) § 52D-8
(2012) and Rules of the Honolulu Police Commission (“RHPC”) Rule
11-1(e) (2018). The Commission concluded four acts alleged in
the first superseding indictment entitled Kealoha to
representation because they were done in the performance of
Kealoha’s duty as a police officer, even if unlawful and
regardless of motive.
The City appealed. The Commission’s decision was affirmed
by the Circuit Court of the First Circuit (“circuit court”) and
the Intermediate Court of Appeals (“ICA”). The ICA concluded
Kealoha’s actions were done in the performance of his duty as a
police officer because they are the kinds of tasks a police
chief generally performs.
2
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Preliminarily, we agree with the ICA’s conclusions that the
“complaint allegation” rule governing the duty to defend by
insurance companies and the “scope of employment” test are
inapplicable to HRS § 52D-8 determinations. We also agree with
the ICA that Kealoha was not required to testify at the
contested case hearing.
We disagree, however, with the analytical approaches and
conclusions below regarding Kealoha’s entitlement to
representation. We instead hold as follows: (1) pursuant to the
plain language of HRS § 52D-8, a police officer is entitled to
representation only “for acts done in the performance of the
officer’s duty as a police officer”; (2) RHPC Rule 11-1(e)
cannot expand rights of representation conferred by HRS § 52D-8;
(3) the officer has the burden of establishing entitlement to
representation; (4) the Commission should examine the entire
record to determine whether an officer is being prosecuted for
acts done in the performance of the officer’s duty as a police
officer; and (5) based on the record before the Commission,
Kealoha did not meet his burden of establishing entitlement to
representation.
We therefore reverse the Commission’s May 10, 2019,
findings of fact, conclusions of law, and decision and order
(“decision”), the circuit court’s December 2, 2020 final
judgment, and the ICA’s April 21, 2022 judgment on appeal.
3
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II. Background
A. Federal indictments
On October 19, 2017, a federal grand jury returned a 20-
count criminal indictment against the Kealohas, HPD Captain
Derek Wayne Hahn, HPD Officer Minh-Hung Nguyen, HPD Major Gordon
Shiraishi, and HPD Detective Daniel Sellers. On March 22, 2018,
a federal grand jury returned a 23-count first superseding
indictment.
In summary, the first superseding indictment alleged (1)
Katherine Kealoha, an attorney, was appointed by a court to
serve as guardian of the property for two minor children, but
misappropriated trust funds to pay the Kealohas’ personal
expenses; (2) Katherine Kealoha purported to invest her uncle
“G.K.P.”’s1 money on his behalf, but actually held the money in a
bank account to pay the Kealohas’ expenses; (3) Katherine
Kealoha misappropriated the funds of her grandmother, “F.P.,”2
after convincing F.P. to take out a “reverse mortgage” on her
house; (4) in order to conceal their actions, the Kealohas
conspired to discredit and intimidate G.K.P. by bringing false
claims of criminal conduct against him; and (5) the Kealohas and
the other police officers conspired to frame G.K.P. for stealing
1 Gerard K. Puana, Katherine Kealoha’s uncle.
2 Florence Puana, Katherine Kealoha’s grandmother.
4
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the mailbox in front of the Kealohas’ house. The first
superseding indictment also alleged the defendants provided
false testimony in G.K.P.’s federal criminal trial and provided
false information to the grand jury and the FBI.
A second superseding indictment returned on May 24, 2018
charged the Kealohas or Katherine Kealoha only with bank fraud,
identity theft, and obstruction of official proceeding.
B. Administrative proceedings
On March 21, 2018, Kealoha requested that the County retain
an attorney to defend him against the first and second
superseding indictments.
On January 16, 2019, Corp Counsel sent a memorandum to the
Commission recommending denial of Kealoha’s request for
representation as to both indictments.3 Corp Counsel opined that
the conduct alleged in the indictments was neither done in the
performance of Kealoha’s duty as a police officer nor in the
course and scope of his employment.
3 HRS § 52D-9 (2012) provides in relevant part:
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. . . .
5
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The Commission scheduled a contested case hearing on
Kealoha’s request for March 6, 2019. Before the hearing,
Kealoha’s attorney, Kevin Sumida (“Sumida”), submitted a written
argument asserting the Commission should use the “complaint
allegation” rule4 applicable to insurance companies in civil
lawsuits to determine whether Kealoha was entitled to
representation.
Kealoha did not appear at the hearing, but was represented
by Sumida. The Commission received in evidence the indictments
and documents from the administrative record.5 Sumida did not
present any additional evidence and indicated Kealoha did not
wish to testify.
Corp Counsel and Sumida then presented arguments against
and for application of the “complaint allegation” rule.
Discussions ensued between various commissioners and Sumida
regarding which factual allegations in the indictments indicated
4 In the insurance context, the “complaint allegation” rule imposes a
duty to defend where pleadings allege claims covered under an insurance
policy. Pancakes of Haw., Inc. v. Pomare Props. Corp., 85 Hawaiʻi 286, 291,
944 P.2d 83, 88 (App. 1997). And “where a suit raises a potential for
indemnification liability of the insurer to the insured, the insurer has a
duty to accept the defense of the entire suit even though other claims of the
complaint fall outside the policy’s coverage.” Hawaiian Holiday Macadamia
Nut Co. v. Indus. Indem. Co., 76 Hawaiʻi 166, 169, 872 P.2d 230, 233 (1994)
(citation omitted).
5 Included was correspondence leading up to the hearing, such as Sumida’s
letter to the Commission requesting representation for Kealoha, the
Commission’s letters to Corp Counsel about the matter, Corp Counsel’s
recommendations to the Commission, and letters scheduling the contested case
hearing. Also included were numerous documents relating to a February 14,
2019 letter from Sumida to the Commission renewing Kealoha’s request for
disqualification of Commissioner Loretta Sheehan (“Sheehan”).
6
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Kealoha was being prosecuted for acts done in the performance of
his duty as a police officer.
On May 10, 2019, the Commission issued its decision.6 It
focused on four overt acts by Kealoha alleged in the first
superseding indictment: (1) causing law enforcement officers to
surveil G.K.P.; (2) creating a false police report identifying
G.K.P. as the suspect of an alleged burglary of the Kealohas’
mailbox; (3) directing HPD officers to arrest G.K.P. for the
fabricated mailbox theft; and (4) calling certain HPD officers
on the phone.
The Commission ruled the four acts fell within RHPC Rule
11-1(e) “even if unlawful and regardless of motive[.]”7 For
example, with respect to the first overt act, the Commission
stated as follows:
The Commission finds that the factual allegations in
Paragraph 37a of the First Superseding Indictment,
appearing on page 211 of the record, which provide []in
relevant part that [“i]n 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” 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
6 In a separate findings of fact, conclusions of law, and decision and
order dated May 10, 2019, the Commission denied Kealoha’s request as to the
second superseding indictment.
7 The Commission similarly analyzed the second and third acts. For the
fourth act, the Commission retained the phrase “regardless of motive” and
left out “even if unlawful.”
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a police officer;” 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 Rules 11-1(e)(i), 11-l(e)(ii), 11-l(e)(iii).
(Cleaned up.)
C. Circuit court proceedings
After hearing arguments, on November 19, 2020, the circuit
court affirmed the Commission’s decision.8 In relevant part, the
circuit court determined: (1) RHPC Rule 11-1(e) is consistent
with HRS § 52D-8; (2) the City’s proffered “scope of employment”
framework “would render HRS § 52D-8 essentially meaningless,
unenforceable and inapplicable”; (3) “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”; and (4) the Commission did not err regarding the four
overt acts because the four overt acts “allege typical police
activity[.]” The circuit court’s final judgment was entered on
December 2, 2020.
D. ICA proceedings
The ICA issued a published opinion, City & County of
Honolulu v. Honolulu Police Commission, 151 Hawaiʻi 56, 508 P.3d
8 The Honorable James H. Ashford presided.
8
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851 (App. 2022), on March 16, 2022, affirming the Commission’s
decision and the circuit court’s final judgment.
The ICA first determined judicial review was permitted
notwithstanding HRS § 52D-9’s reference to the “conclusiveness”
of a police commission’s determination.9 151 Hawaiʻi at 63–64,
508 P.3d at 858–59.
The ICA then held the “complaint allegation” rule
inapplicable because the obligation to defend under HRS § 52D-8
is statutory, not contractual, and because application of the
rule would require the Commission to assume the truth of
indictment allegations. 151 Hawaiʻi at 64–65, 508 P.3d at 859–
60.
The ICA also deemed the “scope of employment” test
inapplicable, reasoning:
9 HRS § 52D-9 (2012) provides in relevant part:
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 . . . . The determination of the police commission
shall be conclusive for the purpose of this section and
section 52D-8.
(Emphasis added.)
As held in Alejado v. City & County of Honolulu, 89 Hawaiʻi 221, 971
P.2d 310 (App. 1998), “HRS § 52D-9’s reference to the ‘conclusiveness’ of the
Commission’s scope of duty determination refers to its ‘conclusiveness’ for
purposes of the City’s review and does not serve to preclude judicial
review.” 89 Hawaiʻi at 231, 971 P.2d at 320.
9
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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. . . . 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.
151 Hawaiʻi at 65–66, 508 P.3d at 860–61.
The ICA further concluded Kealoha was not required to
testify at the contested case hearing.10 151 Hawaiʻi at 66–67,
508 P.3d at 861–62. The ICA noted Kealoha had a
constitutionally protected property right to representation for
acts done in the performance of his duty as a police officer,
but that he also had a constitutional right against self-
incrimination; it was impermissible to make Kealoha choose
between these rights. Id.
The ICA also held HRS § 52D-8 requires that the Commission
consider the police officer’s alleged act, but not the officer’s
alleged motive. 151 Hawaiʻi at 67–68, 508 P.3d at 862–63. The
ICA analogized concepts from criminal law to this situation,
stating:
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
10 The ICA stated: “The City also argues that Kealoha failed to sustain
his burdens of proof, production, and persuasion by failing to testify during
his contested case hearing that he intended the acts for which he was being
prosecuted to benefit the City.” 151 Hawaiʻi at 66, 508 P.3d at 861 (footnote
omitted). As asserted by the City in its motion for reconsideration, the
City never argued Kealoha needed to testify.
10
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charging document concerning the police officer’s acts —
the conduct element — and disregard allegations about the
officer’s motive for committing the alleged acts.
151 Hawaiʻi at 67, 508 P.3d at 862.
The ICA then reviewed the Commission’s analyses regarding
each of the four overt acts and upheld the Commission’s
decision. 151 Hawaiʻi at 68–71, 508 P.3d at 863–66.
Essentially, the ICA concluded “[i]t was within the scope of
Kealoha’s duty as chief to cause HPD officers to surveil a
suspect” or “to cause HPD officers to prepare reports” or “to
cause HPD officers to arrest persons suspected of committing a
crime.” Id.
The ICA also stated that the City did not contend that
RHPC Rule 11-1(e) is ambiguous or that it is legally
inconsistent with HRS § 52D-8.11 151 Hawaiʻi at 71, 508 P.3d at
866.
Finally, the ICA took judicial notice that a federal jury
eventually found Kealoha guilty on Counts 1, 2, 6, and 8 in the
first superseding indictment. 151 Hawaiʻi at 72, 508 P.3d at
867. The ICA noted, however, that it “would have been contrary
11 As discussed in Section IV.C, this contradicts the record. In
addition, the ICA appears to have adopted the Commission’s position that its
interpretation of RHPC Rule 11 is entitled to deference. It appears,
however, that the Commission’s position is an interpretation of law, not
derived from any specialized expertise. See Camara v. Agsalud, 67 Haw. 212,
216, 685 P.2d 794, 797 (1984) (“[I]n deference to the administrative agency’s
expertise and experience in its particular field, the courts should not
substitute their own judgment for that of the administrative agency . . . .”
(emphasis added)).
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to the plain language of, and legislative intent behind, HRS §
52D-8 to require that the . . . 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.”12 Id.
E. Certiorari proceedings
The City argues the Commission did apply the “complaint
allegation” rule, in practice, if not by name. It also contends
the ICA erred by rejecting the “scope of employment” test and
failing to consider why Kealoha allegedly directed the
surveillance and arrest of G.K.P. (for personal gain, not public
benefit). The City also asserts the ICA should have considered
the constitutional concerns raised by the City, because it did
12 The City filed a motion for reconsideration on March 28, 2022. The
City argued: (1) because the ICA rejected the “complaint allegation” rule,
the ICA should have vacated the decisions of the Commission and the circuit
court, which relied on the “complaint allegation” rule; (2) the relevant
limiting language in HRS § 52D-8 is “performance of duty” not “acts”; (3) the
ICA overlooked the constitutional implications of its decision, as taxpayer
funds may only be used for public purposes; and (4) there are many instances
where HRS § 52D-8 could still apply even if the statute required an officer
to have acted, at least in part, to benefit the City — for instance, HRS §
52D-8 could potentially apply to the officers charged in the death of
Iremamber Sykap.
The ICA denied the motion for reconsideration. The ICA noted the
Commission’s order did not mention the “complaint allegation” rule, and,
although the circuit court improperly adopted the “complaint allegation”
rule, the ICA could still affirm the circuit court’s judgment, but not the
order, as correct. The ICA also declined to address the City’s argument
about constitutional concerns because the City did not raise an
“unconstitutional as applied” argument before the Commission or in its appeal
to the circuit court.
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not waive the issue. Finally, the City maintains it did and
does challenge the validity of RHPC Rule 11.13
III. Standards of Review
A. Statutory interpretation
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists. And fifth, in construing an ambiguous
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.
Ito v. Invs. Equity Life Holding Co., 135 Hawaiʻi 49, 61, 346
P.3d 118, 130 (2015) (citation omitted).
B. Review of agency decisions
HRS § 91-14(g) provides:
(g) 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;
13 The City argues the Commission refused to consider any factors other
than the three factors set out in the rule, as if the rule confined, rather
than aided, its analysis.
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(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.
(Supp. 2016).
Conclusions 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 (FOF) are reviewable under the clearly
erroneous standard, pursuant to subsection (5), and an
agency’s exercise of discretion is reviewed under the
arbitrary and capricious standard, pursuant to subsection
(6). Mixed questions of law and fact are reviewed under
the clearly erroneous standard because the conclusion is
dependent upon the facts and circumstances of the
particular case.
A court reviewing the decision of an agency should ensure
that the agency make its findings reasonably clear. The
parties and the court should not be left to guess the
precise finding of the agency.
In re Haw. Elec. Light Co., 145 Hawaiʻi 1, 10-11, 445 P.3d
673, 682-83 (2019) (cleaned up).
C. Agency rule interpretation
General principles of statutory construction apply in
interpreting administrative rules. As in statutory
construction, courts look first at an administrative rule’s
language. If an administrative rule’s language is
unambiguous, and its literal application is neither
inconsistent with the policies of the statute the rule
implements nor produces an absurd or unjust result, courts
enforce the rule’s plain meaning. While an agency’s
interpretation of its own rules is generally entitled to
deference, this court does not defer to agency
interpretations that are plainly erroneous or inconsistent
with the underlying legislative purpose.
Panado v. Bd. of Trs., Emp.’s Ret. Sys., 134 Hawaiʻi 1, 11, 332
P.3d 144, 154 (2014) (citation omitted).
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IV. Discussion
A. The ICA correctly held the “complaint allegation” rule and
“scope of employment” test inapplicable and that Kealoha
was not required to testify at the contested case hearing
Preliminarily, we agree with the ICA’s conclusions that the
“complaint allegation” rule governing the duty to defend by
insurance companies and the “scope of employment” test are
inapplicable to HRS § 52D-8 determinations, and that Kealoha was
not required to testify at the contested case hearing.
For the reasons discussed below, however, we disagree with
the analytical approaches and conclusions below regarding
Kealoha’s entitlement to representation.
B. Pursuant to the plain language of HRS § 52D-8, a police
officer is entitled to representation only for acts done in
the performance of the officer’s duty as a police officer
HRS § 52D-8 provides:
Whenever a police officer is prosecuted for a crime or sued
in a civil action 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.
(Emphasis added.)
Under the plain language of this statute, police officers
are entitled to representation only “for acts done in the
performance of the officer’s duty as a police officer[.]”
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Id. Contrary to the rulings below, HRS § 52D-8 does not merely
require a determination of whether the acts performed by the
officer seeking representation are acts generally performed by
police officers.
HRS § 52D-8 does not provide for representation for “acts
that police officers generally perform.” If that were the
standard, police officers who effectuate arrests without
probable cause for personal, non-law-enforcement-related
vendettas, or who fabricate and submit false police reports for
personal purposes, would be entitled to representation because
arrests and preparation of police reports are “acts that police
officers generally perform.” Conversely, HRS § 52D-8 also does
not limit representation to “acts that police officers generally
perform.” For example, police officers do not generally perform
maritime rescues. But if an on-duty police officer attempts a
maritime rescue due to unavailability of other rescue personnel,
but causes an injury or death and is sued, the “acts that police
officers generally perform” test could unnecessarily restrict
representation under HRS § 52D-8.
Furthermore, the word “motive” does not appear in the
statute, and it is also not an appropriate inquiry. Rather, the
plain language of the statute requires that the Commission make
an overall determination of whether acts of a police officer
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were done in the performance of the officer’s duty as a police
officer.
C. RHPC Rule 11-1(e) cannot expand rights of representation
provided by the statute
The Commission and the ICA also relied on RHPC Rule 11-1(e)
in ruling that Kealoha was entitled to representation. RHPC
Rule 11-1(e) (2018) provides:
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”:
(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.
(Emphases added.)
As the City argues, although this rule can aid an HRS §
52D-8 analysis, the statute does not parse out and focus just on
whether acts are generally performed by police officers. In
this regard, the ICA erroneously stated that “[t]he City does
not contend that RHPC Rule 11-1(e) is ambiguous or that it is
legally inconsistent with HRS § 52D-8.” Honolulu Police Comm’n,
151 Hawaiʻi at 71, 508 P.3d at 866. The City’s opening brief
argued that the Commission’s Rule 11-1(e), upon which it also
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relied, is inconsistent with the statutory provisions it
purported to implement. The City also asserted that
The Rule on its face is thus contrary to the statutory
provision it purports to implement, HRS § 52D-8, which does
not permit representation for conduct “incident to” acts
done in the performance of the officer’s duty as a police
officer, but rather, only for the acts themselves. . . .
The Rule is thus invalid.
We need not invalidate the rule, however, as proposed by
the City, because “[i]t is axiomatic that an administrative rule
cannot contradict or conflict with the statute it attempts to
implement.” Liberty Dialysis-Hawaii, LLC v. Rainbow Dialysis,
LLC, 130 Hawaiʻi 95, 107, 306 P.3d 140, 152 (2013) (citations
omitted). Thus, we hold that although the rule can aid an HRS §
52D-8 analysis, it cannot expand rights of representation
provided by the statute.
D. The officer has the burden of establishing entitlement to
representation
HRS § 52D-8 provides for representation “[w]henever a
police officer is prosecuted for a crime or sued in a civil
action for acts done in the performance of the officer’s duty as
a police officer[.]” The statute does not create any
presumptions.14 HRS § 91-10(5) (2012) and RHPC Rule 11-4(c)
(2018) then provide that the police officer requesting
representation has “the burden of proof[,] including the burden
14 See generally Hawaiʻi Rules of Evidence Rules 303 (2016) and 304 (2016)
regarding presumptions. Adoption of the “complaint allegation” rule might
improperly create such a presumption.
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of producing evidence” and “the burden of persuasion” by “a
preponderance of the evidence.”
Thus, the officer seeking representation has the burden of
establishing the threshold question of whether the officer was
acting in the performance of the officer’s duty as a police
officer.
E. The Commission should examine the entire record to
determine whether an officer is being prosecuted for acts
done in the performance of the officer’s duty as a police
officer
Pursuant to RHPC Rule 11-4(b), and as provided in HRS § 91-
10, the rules of evidence apply in contested case hearings
before the Commission regarding representation requests.
Alejado, 89 Hawaiʻi 221, 971 P.2d 310, indicates the Commission
can and should examine the entire record before it to determine
whether an officer is entitled to representation:
In reaching their decision, the Commission reviewed the
police reports regarding [the alleged victim’s] arrest,
various sections of the [HPD] Standards of Conduct, HPD’s
General Order No. 82–1 on arrests, pertinent case law, the
indictment, the civil complaint, and a statement from a
witness who observed [the officer’s] alleged beating of
[the alleged victim] and the alleged attempts of witness
tampering.
89 Hawaiʻi at 223, 971 P.2d at 312.
In contested case hearings regarding representation
requests, documents other than criminal charges or civil
complaints, including police reports and witness statements,
might be available. Sworn testimony from people other than the
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officer seeking representation can be presented. The Commission
can also consider internal investigation reports, if any exist.15
As indicated in Alejado, the Commission can also consider
testimony or documents establishing police officer standards of
conduct and duties.16 And as provided by HRS § 91-10(4), the
Commission is also able to take judicial notice of similar or
other documents that have not been received in evidence.17
F. Based on the record before the Commission, Kealoha did not
meet his burden of establishing entitlement to
representation
The Commission examined the record before it to determine
whether Kealoha was entitled to representation. But that record
consisted only of the indictments and certain correspondence
from the administrative record received in evidence by the
Commission.
15 For example, the Maui Police Commission rules provide: “Upon receipt of
the police officer’s written request, the commission shall request that the
chief or the chief’s authorized designee prepare and submit a written report
to the commission informing the commission of the current status of the
department’s investigation of the matter with regard to which the police
officer is seeking legal representation from the County.” Rules of the
Police Commission for the Maui County Department of Police § 13-101-53(a)
(2000). Honolulu does not appear to have a similar provision.
16 Pursuant to RHPC Rule 11-4(b), “[t]he rules of evidence as provided in
HRS § 91-10 shall apply [in contested case hearings regarding representation]
except that cross examination will only be provided to the extent that oral
testimony is heard by the Commission.” Pursuant to the rules of evidence and
as specifically provided by HRS § 91-10(4), the Commission is able to take
judicial notice of such documents.
17 Thus, the Commission should be able to address the threshold question
by evidence other than the officer’s own testimony.
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Article VI, Chapter 16 of the Revised Charter of the City
and County of Honolulu 1973 (Amended 2017 Edition), concerning
the City’s Police Department, outlined Kealoha’s duties as Chief
of Police.18 Section 6-1601 provides that the Chief of Police
serves as the administrative head of the Police Department.
Section 6-1602 is a statement of policy regarding Chapter 16,
which includes a general statement that the City’s system of law
enforcement “shall promote the highest possible degree of mutual
respect between law enforcement officers and the people of the
city and which shall provide for the expeditious apprehension of
those who violate the law.” Section 6-1603, in summary, sets
out minimum qualifications for the position of Chief of Police,
provides for a five-year term, and also provides that the Chief
of Police serves at the pleasure of the Commission.
Section 6-1604 then sets out powers, duties, and functions
of the Chief of Police:
Section 6-1604. Powers, Duties and Functions —
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.
(c) Serve process and notices both in civil and criminal
proceedings.
18 Relevant provisions remain unchanged in the Amended 2021 Edition. An
appellate court can choose to take judicial notice of adjudicative facts.
State v. Kwong, 149 Hawaiʻi 106, 116-17, 482 P.3d 1067, 1077-78 (2021).
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(d) Promulgate rules and regulations necessary for the
organization and internal administration of the department.
(e) Prepare and, when deemed necessary, update a five-year
plan of goals and objectives for the police department.
The chief shall submit the plan and each update to the
commission for review and recommendations.
(f) Appoint the deputy chiefs of police. A deputy chief
shall have the right of reinstatement to a previously
occupied civil service position in the police department
when (1) the deputy chief had held a permanent appointment
to the position immediately before appointment to the
office of deputy chief; and (2) the deputy chief’s tenure
in the office has not been terminated for cause. If
exercising the right, the deputy chief shall be reinstated,
without necessity of examination, to the former civil
service position immediately following termination of
tenure as deputy chief.
(g) Perform such other duties as may be required by this
charter or by law.
Also, under the HPD standards of conduct, officers must enforce
the law and be truthful at all times, and shall not falsify
records or commit any criminal act. See Honolulu Police Dep’t,
City & Cnty. of Honolulu, Pol’y No. 2.21, Standards of Conduct
of the Honolulu Police Department, art. VII, § C(16)–(17), (19)
(2016).
The Commission and the ICA focused on four acts performed
by Kealoha in ruling he was entitled to representation: (1)
causing law enforcement officers to conduct surveillance of
G.K.P.; (2) creating a false police report identifying G.K.P. as
the suspect of an alleged burglary at the Kealohas’ residence;
(3) directing HPD officers to arrest G.K.P. for the fabricated
mailbox theft; and (4) calling certain HPD officers on the
phone.
Kealoha had the burden of establishing entitlement to
representation, but presented no evidence in addition to the
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indictments and administrative record letters received in
evidence by the Commission.19 He relied solely on the “complaint
allegation” rule, which does not apply. Although the
Commission, the circuit court, and the ICA applied different
analytical approaches, they all focused on whether four overt
acts were the kinds of acts that fall within Kealoha’s duties,
without focusing on whether he met his burden of establishing
that he performed them in performance of his duties.
The record before the Commission did not establish that any
of the four acts were acts done in the performance of Kealoha’s
duties as Chief of Police. On its face, the second act of
creating a false police report was not part of Kealoha’s duties
as Chief of Police. With respect to the first, third, and
fourth acts, although ordering surveillance, directing officers
to effectuate an arrest, and exchanging phone calls might be
part of the Chief of Police’s duties, here, the first
superseding indictment alleged these actions were taken “in
furtherance of the conspiracy” to frame G.K.P. The first
superseding indictment charged Kealoha and his co-conspirators
19 The exhibits before the Commission did include a September 7, 2016
letter from Katherine Kealoha to the Commission, in which Katherine Kealoha
defended herself and Kealoha regarding the alleged “mailbox” conspiracy.
However, Sumida submitted this letter as part of his request for
disqualification of Sheehan, not as part of his argument about why Kealoha
was entitled to representation. In any event, the Commission did not cite
the letter, or any other source apart from the indictments, in its decision,
and the letter did not establish that Kealoha met his burden.
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with “improperly us[ing] their authority to prevent the
discovery and disclosure of [the Kealohas’] precarious financial
condition and prior malfeasance”; “misusing the resources of
CIU, by executing unconstitutional searches and seizures, and by
abusing their official positions and law enforcement authority”;
and attempting to “fabricate, alter, and conceal evidence in
order to support false claims of criminal conduct by G.K.P.
. . . .”
Kealoha’s duties did not include overseeing a criminal
conspiracy to hide his and his wife’s misappropriation of funds
belonging to others. His duties did not include conspiring to
frame his wife’s uncle for a crime he did not commit. Kealoha
failed to meet his burden of establishing that he was being
prosecuted for acts done in the performance of his duties as
Chief of Police.20 Hence, the Commission’s decision was clearly
erroneous in view of the reliable, probative, and substantial
evidence on the whole record.
V. Conclusion
This case involves a highly unusual representation request
made by the Chief of Police. The criminal charges against
Kealoha were extraordinary.
20 We also note that with respect to the “mailbox conspiracy,” Kealoha was
reporting a purported but false “crime” as an alleged “victim,” not as a
police officer.
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We note that the stated purpose of HRS § 52D-8 is to
maintain “the morale of the force[.]” See S. Stand. Comm. Rep.
No. 376, in 1941 Senate Journal, at 860–61. Consistent with
this purpose, both HRS § 52D-8 and RHPC Rule 11-1(e) contain
broad language entitling police officers to representation in
most circumstances. Even if acts purportedly exceeding a police
officer’s duty as a police officer are alleged, such as use of
unreasonable force or driving at excessive speeds to effectuate
a legitimate arrest, representation should be available because
the officer was initially acting to perform the officer’s duty
as a police officer.
But nothing in this record indicated that Kealoha was
acting in any way to perform his duties as Chief of Police.
Finally, we also note that HRS § 52D-8 is also for the
benefit of the public:
The duties of a [police officer] are performed for
the benefit of the public. . . . [I]t is for the public
good that these officers, as instruments through which the
city performs its functions, shall be shielded from the
personal hazards which attend the discharge of their
official duties. 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)
(cleaned up). Taxpayer-funded representation for officers whose
acts are in the performance of their duties as police officers
benefit the public. Taxpayer-funded representation for officers
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whose acts are not in the performance of their duties as police
officers do not.21
In conclusion, for the reasons discussed in Section IV, we
reverse the Commission’s May 10, 2019, findings of fact,
conclusions of law, and decision and order, the circuit court’s
December 2, 2020, final judgment, and the ICA’s April 21, 2022
judgment on appeal.22
Donna H. Kalama /s/ Mark E. Recktenwald
for petitioner
/s/ Sabrina S. McKenna
Duane W.H. Pang /s/ Michael D. Wilson
for respondent
/s/ Todd W. Eddins
/s/ Kelsey T. Kawano
21 We do not address the constitutional grounds alleged by the City based
on article VII, section 4 of the Hawai‘i Constitution, which provides, “[n]o
tax shall be levied or appropriation of public money or property made, . . .
directly or indirectly, except for a public purpose.”
22 The record does not reflect whether the City did actually retain an
attorney to defend Kealoha with respect to the first superseding indictment;
we do not address whether there are any possible financial consequences of
this opinion.
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