Meyer v. Basco.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
07-MAR-2023
09:11 AM
Dkt. 18 OPA

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o---
________________________________________________________________

KIEU MEYER, STEPHEN MEYER, KIEU MEYER ON BEHALF OF A MINOR,
Respondents/Petitioners-Appellees,

vs.

JAMES BASCO; MARY BASCO, Petitioners/Respondents-Appellants.
________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; Case No. 2DSS-XX-XXXXXXX)

MARCH 7, 2023

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This opinion addresses whether a district court has subject

matter jurisdiction to rule on a Hawaiʻi Revised Statutes (“HRS”)

§ 604-10.5 petition to enjoin harassment (“injunction petition”)

after ninety days elapses from issuance of an ex parte temporary

restraining order (“TRO”). We hold the Intermediate Court of

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Appeals (“ICA”) correctly held the district court has such

jurisdiction.

Due to public safety implications, however, we also address

an issue the ICA did not: whether an HRS § 604-10.5 TRO expires

after ninety days despite district court orders continuing the

TRO beyond ninety days pending completion of a hearing and

decision on the injunction petition.

For the reasons explained below, we hold that if a district

court has commenced hearing the merits of an HRS § 604-10.5

injunction petition but, despite reasonable efforts, is unable

to conclude the hearing within ninety days of issuance of the ex

parte TRO, it has jurisdiction and discretion to continue the

TRO pending its final decision on the injunction petition as

long as standards for issuance of temporary injunctive relief

are met.1

We therefore affirm the ICA’s November 1, 2022 judgment on

appeal, subject to the clarifications in this opinion.

II. Background

A. District court proceedings

1. The petition

On June 1, 2020, Kieu Meyer, Stephen Meyer, and Kieu Meyer

on behalf of a minor child (collectively “the Meyers”), filed a

1 Under the circumstances of this case, we need not address whether the
Meyers’ TRO was properly continued past ninety days.

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petition against their neighbors James Basco, aka “Tony Basco,”

and Mary Basco (collectively “the Bascos”) in the District Court

of the Second Circuit (“district court”). The petition

requested a ninety-day TRO to be followed by a three-year

injunction against harassment pursuant to HRS § 604-10.5 (2016 &

Supp. 2019).2 The Meyers alleged disturbing incidents by the

2 HRS § 604-10.5 (2016 & Supp. 2019) provided in relevant part:

§604-10.5 Power to enjoin and temporarily restrain
harassment. (a) For the purposes of this section:
"Course of conduct" means a pattern of conduct composed of
a series of acts over any period of time evidencing a
continuity of purpose.
"Harassment" means:
(1) Physical harm, bodily injury, assault, or the threat
of imminent physical harm, bodily injury, or assault; or
(2) An intentional or knowing course of conduct directed
at an individual that seriously alarms or disturbs
consistently or continually bothers the individual and
serves no legitimate purpose; provided that such course of
conduct would cause a reasonable person to suffer emotional
distress.
(b) The district courts shall have the power to enjoin,
prohibit, or temporarily restrain harassment.
(c) Any person who has been subjected to harassment may
petition the district court of the district in which the
petitioner resides for a temporary restraining order and an
injunction from further harassment.
. . . .
(f) Upon petition to a district court under this section,
the court may temporarily restrain the person or persons
named in the petition from harassing the petitioner upon a
determination that there is probable cause to believe that
a past act or acts of harassment have occurred or that a
threat or threats of harassment may be imminent. The court
may issue an ex parte temporary restraining order either in
writing or orally; provided that oral orders shall be
reduced to writing by the close of the next court day
following oral issuance.
(g) A temporary restraining order that is granted under
this section shall remain in effect at the discretion of
the court for a period not to exceed ninety days from the
date the order is granted. A hearing on the petition to
enjoin harassment shall be held within fifteen days after
the temporary restraining order is granted. If service of
the temporary restraining order has not been effected
before the date of the hearing on the petition to enjoin,

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Bascos against them occurring from 2012 to 2020. The

allegations included physical violence, cursing, racially

discriminatory and physically threatening language, and refusal

to leave the Meyers’ premises.

On June 1, 2020, the district court3 granted an ex parte TRO

for fifteen days “unless extended or terminated by the Court.”

The district court schedules harassment petition hearings

during a three-hour block every Monday morning. The hearings

for this case spanned six separate dates because of the district

court’s scheduling constraints and the case’s contested nature.4

the court may set a new date for the hearing; provided that
the new date shall not exceed ninety days from the date the
temporary restraining order was granted.
The parties named in the petition may file or give
oral responses explaining, excusing, justifying, or denying
the alleged act or acts of harassment. The court shall
receive all evidence that is relevant at the hearing and
may make independent inquiry.
If the court finds by clear and convincing evidence
that harassment as defined in paragraph (1) of that
definition exists, it may enjoin for no more than three
years further harassment of the petitioner, or that
harassment as defined in paragraph (2) of that definition
exists, it shall enjoin for no more than three years
further harassment of the petitioner; provided that this
paragraph shall not prohibit the court from issuing other
injunctions against the named parties even if the time to
which the injunction applies exceeds a total of three
years.
. . . .
(h) The court may grant the prevailing party in an action
brought under this section costs and fees, including
attorney's fees.

3 The Honorable Blaine J. Kobayashi presided.

4 When Kieu Meyer testified during the first hearing, the Bascos
conducted voir dire of various pictures and exhibits. During the second
hearing, the parties completed the examinations of Kieu Meyer and a second
witness. Throughout the next three hearings, six more witnesses testified.
At the December 7, 2020 hearing, the court proposed having the next hearing

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Hearings were held on June 15, July 6, August 17, September 28,

and December 7, 2020, and on January 11, 2021. Until the last

hearing, the district court ordered that the TRO remain in

effect until the next hearing.

2. Motion to dismiss for lack of jurisdiction

The Bascos did not object to the district court’s orders

continuing the TRO. On December 27, 2020, however, they filed a

motion to dismiss the Meyers’ injunction petition, alleging a

lack of subject matter jurisdiction. The Bascos asserted that

under HRS § 604-10.5(g), a TRO can remain in effect only for “a

period not to exceed ninety days from the date the order is

granted,” and that, therefore, the TRO and the court’s

jurisdiction over the matter expired on August 29, 2020.

The district court scheduled a hearing on the Bascos’

motion for January 11, 2021, the next scheduled hearing on the

Meyers’ injunction petition. Before the hearing, the Meyers

filed a memorandum in opposition. They noted the Bascos had not

objected to any of the orders continuing the TRO. They also

argued HRS § 604-10.5 should be construed to ensure petitioners

have the benefit of an order prohibiting harassment pending

completion of the hearing.5

in two weeks. The Meyers asked to continue it until January to “enjoy our
holidays” and the Bascos agreed.

5 The Meyers also argued that Chief Justice Mark E. Recktenwald
authorized each presiding judge to postpone matters to ensure health and

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3. Orders granting injunction against harassment
and awarding attorney fees and costs

At the January 11, 2021 hearing, the district court denied

the Bascos’ motion to dismiss for lack of jurisdiction. The

district court concluded it was not divested of jurisdiction

just because more than ninety days had elapsed since the initial

granting of the TRO. The court pointed out that, if that was

the case, a respondent could drag out an injunction hearing for

more than ninety days. The court also determined it had

inherent authority to continue the TRO in place and protect

petitioners pending a final decision. It opined that this

comported with the purpose and intent of HRS § 604-10.5 to

restrain acts of harassment until the injunction hearing was

concluded.

The district court then found that the Meyers proved the

allegations of the petition by clear and convincing evidence and

granted a three-year injunction order. On February 8, 2021, the

court approved the Meyers’ HRS § 604-10.5(h) motion for attorney

fees and costs in full, and ordered the Bascos to pay attorney

fees of $21,252.00 and costs of $1,108.44.

safety during the COVID-19 pandemic. This was not a basis for the ICA’s
ruling and is not raised on certiorari. Hence, arguments and rulings
regarding COVID-19 orders will not be further discussed.

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B. ICA proceedings

The Bascos appealed, repeating arguments they made to the

district court. In summary, they argued that because the TRO

was granted on June 1, 2020, it was only valid until August 29,

2020 pursuant to HRS § 604-10.5(g) and that the district court

therefore lacked subject matter jurisdiction to enter the

injunction and attorney fees orders. They also cited to Ling v.

Yokoyama, 91 Hawaiʻi 131, 980 P.2d 1005 (App. 1999), which is

discussed below.

In a September 20, 2022 memorandum opinion, the ICA

affirmed the district court. Meyer v. Basco, CAAP-XX-XXXXXXX

(App. Sept. 20, 2022) (mem. op.). The ICA pointed out that the

purpose of the TRO is to protect against imminent harm by

providing a period of separation while the district court hears

from the parties and decides whether to grant a petition to

enjoin harassment. Id. at 6 (citing Hamilton ex rel. Lethem v.

Lethem, 126 Hawaiʻi 294, 305, 270 P.3d 1024, 1035 (2012)). The

ICA concluded the district court’s jurisdiction over a petition

to enjoin harassment does not hinge on the status of the TRO and

that the district court therefore had jurisdiction over the

injunction petition and motion for attorney fees and costs.

Meyer, mem. op. at 7.

The ICA did not decide whether the TRO had actually

expired on August 29, 2020, as alleged by the Bascos.

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Meyer, mem. op. at 2 n.2. The ICA stated in footnote 2

that because the Bascos had not challenged the TRO

extensions except to the extent it affected the district

court’s jurisdiction, it need not address whether the TRO

expired after ninety days. Id.

On November 1, 2022, the ICA approved in full the

Meyers’ request for appellate attorney fees of $16,187.14.

On November 1, 2022, the ICA filed its judgment on appeal.

C. Certiorari proceedings

In essence, the Bascos’ January 3, 2023 certiorari

application argues the ICA erred by disregarding the plain and

unambiguous language of HRS § 604-10.5(g) that a TRO “shall

remain in effect at the discretion of the court for a period not

to exceed ninety days from the date the order is granted[.]”

III. Standards of Review

A. Subject matter jurisdiction

“The existence of jurisdiction is a question of law that

we review de novo under the right/wrong standard.” Lingle v.

Hawaiʻi Gov't Emps. Ass'n, AFSCME, Local 152, AFL-CIO, 107

Hawaiʻi 178, 182, 111 P.3d 587, 591 (2005).

B. Statutory interpretation

“Questions of statutory interpretation are questions of law

to be reviewed de novo under the right/wrong standard.” Lingle,

107 Hawaiʻi at 183, 111 P.3d at 592.

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IV. Discussion

A. The ICA did not err by ruling the district court was not
divested of jurisdiction to rule on the injunction petition
just because more than ninety days had elapsed from the
original TRO issuance

The Bascos continue to assert the district court was

without subject matter jurisdiction to address the injunction

petition on the ninety-first day after the issuance of the TRO

because of the language of HRS § 604-10.5(g), which says “[a]

temporary restraining order that is granted under this section

shall remain in effect at the discretion of the court for a

period not to exceed ninety days from the date the order is

granted[.]”

The ICA did not err by holding otherwise. The statute

contains no language saying a district court must decide an

injunction petition within ninety days of issuance of an ex

parte TRO against harassment. And as the ICA noted, the statute

also does not say a district court loses jurisdiction over an

injunction petition when ninety-days elapses from ex parte TRO

issuance. Further, HRS § 604-7(e) (2016) provides the district

courts with “power to . . . make . . . orders . . . and do such

other acts and take such other steps as may be necessary to

carry into full effect the powers which are . . . given them by

law or for the promotion of justice in matters pending before

them.” The district courts have been empowered to rule on

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injunction petitions under HRS § 604-10.5, and they must have

reasonable discretion in the scheduling of hearings. It would

be absurd to construe HRS § 604-10.5(g) as meaning a district

court loses jurisdiction if the injunction petition is not

decided within ninety days of the ex parte TRO issuance. As the

district court reasoned, a respondent could then intentionally

drag out an injunction hearing until ninety days had elapsed.

Moreover, as explained in Section IV.B below, district

courts in any event have jurisdiction and discretion to continue

TROs past ninety days.

For all of these reasons, the ICA did not err by holding

that the district court was not divested of jurisdiction to rule

on the injunction petition just because more than ninety days

had elapsed from the original TRO issuance.

B. If a district court has commenced hearing the merits of an
HRS § 604-10.5 injunction petition but, despite reasonable
efforts, is unable to conclude the hearing within ninety
days of issuance of the ex parte TRO, it has jurisdiction
and discretion to continue the TRO pending its final
decision on the injunction petition as long as standards
for issuance of temporary injunctive relief are met

In this case, an ex parte TRO was issued on June 1, 2020.

Ninety days elapsed on August 29, 2020. Because of the hotly

contested nature of the petition and the district court’s

scheduling constraints, hearings on the injunction petition took

place on six separate dates over a seven-month period. Three of

those hearings were after August 29, 2020. Each time the

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hearings were continued, the district court ordered that the TRO

remain in place.

The ICA explicitly indicated it was not deciding whether

the TRO had expired after ninety days because it was not

required to do so. In other words, whether or not the TRO had

expired, the district court still had jurisdiction to decide the

injunction petition. The Bascos’ jurisdiction argument is,

however, premised on an assumption that an HRS § 604-10.5(g) TRO

can never continue past ninety days. Therefore, if the

assumption fails, the Bascos’ entire argument fails.

In addition, although the issue of whether this TRO

remained valid beyond ninety-days is moot, the question of

whether an HRS § 604-10.5 TRO can be extended past ninety days

has significant public safety and public interest implications.

If the question remains unanswered, respondents might believe

they can resume contact and engage in actions that could

constitute harassment. Also, uncertainty regarding the issue

affects not only the parties, but also the actions of the

judiciary and law enforcement.6 Therefore, we address the

6 Without a definitive answer, district court judges could rule
differently on the issue. Law enforcement would not know whether contact
after ninety days constitutes a criminal offense.

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question of whether an HRS § 604-10.5 TRO can be extended past

ninety days.7

Our interpretation of HRS § 604-10.5 is shaped by the

following rules:

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.

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.

State v. Wheeler, 121 Hawai‘i 383, 390, 219 P.3d 1170, 1177

(2009) (cleaned up).

Thus, the fundamental starting point is the language of HRS

§ 604-10.5(g) itself, which provides:

(g) A temporary restraining order that is granted under
this section shall remain in effect at the discretion of
the court for a period not to exceed ninety days from the
date the order is granted. . . . A hearing on the petition
to enjoin harassment shall be held within fifteen days
after the temporary restraining order is granted. If
service of the temporary restraining order has not been

7 The public interest exception to the mootness doctrine applies when the
question involved affects the public interest, and it is likely that similar
questions arising in the future would likewise become moot before a needed
authoritative determination by an appellate court can be made. Cmty. Ass’ns
of Hualalai, Inc. v. Leeward Plan. Comm'n, 150 Hawai‘i 241, 253 n.18, 500 P.3d
426, 438 n.18 (2021).

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effected before the date of the hearing on the petition to
enjoin, the court may set a new date for the hearing;
provided that the new date shall not exceed ninety days
from the date the temporary restraining order was granted.
. . . .
If the court finds by clear and convincing evidence
that harassment as defined in paragraph (1) of that
definition exists, it may enjoin for no more than three
years further harassment of the petitioner, or that
harassment as defined in paragraph (2) of that definition
exists, it shall enjoin for no more than three years
further harassment of the petitioner . . .; provided that
this subsection shall not prohibit the court from issuing
other injunctions against the named parties even if the
time to which the injunction applies exceeds a total of
three years.

(Emphases added.)

The Bascos argue that because of the first sentence of HRS

§ 604-10.5(g), underlined above, the TRO could not continue past

ninety days (and that the district court was therefore also

divested of jurisdiction to rule on the injunction petition).

The plain language of HRS § 604-10.5(g) indicates otherwise.

First, the “temporary restraining order that is granted

under this section” refers to the ex parte8 TRO issued pursuant

to HRS § 604-10.5(f).9 A temporary restraining order is designed

to preserve the status quo until there is an opportunity to hold

a hearing on the application for a preliminary injunction.

Wahba, LLC v. USRP (Don), LLC, 106 Hawaiʻi 466, 472, 106 P.3d

1109, 1115 (2005). “Preliminary injunction” refers to an

interlocutory injunction issued after notice and a hearing,

8 Black’s Law Dictionary (11th ed. 2019) defines “ex parte” as “[d]one or
made at the instance and for the benefit of one part only, and without notice
to, or argument by, anyone having an adverse interest.”

9 See supra note 2 for the text of HRS § 604-10.5(f).

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which restrains a party pending trial on the merits. County of

Johnston v. City of Wilson, 136 N.C. App. 775, 780 (2000).

Thus, once a hearing on the merits of an injunction

petition has begun, a continued TRO is no longer one that has

been issued ex parte, and is not equivalent to the “temporary

restraining ordered that [has been] granted” under HRS § 604-

10.5(f). Rather, when a district court begins hearing the

merits of an injunction petition but continues a TRO, it is

actually issuing temporary injunctive relief in the nature of a

preliminary injunction. See Office of Hawaiian Affairs v.

Housing and Comm. Dev. Corp. of Hawai‘i, 117 Hawaiʻi 174, 211,

177 P.3d 884, 921 (2008) (rev’d & remanded on other grounds by

Hawaiʻi v. Office of Hawaiian Affairs, 556 U.S. 163 (2009))(“OHA

v. HCDCH”).

HRS § 604-10.5(g) then expressly provides that despite its

language limiting a permanent injunction to a maximum of three

years, district courts are not prohibited “from issuing other

injunctions against the named parties even if the time to which

the injunction applies exceeds a total of three years.”10

Hence, the plain language of HRS § 604-10.5 permits

district courts to enter ex parte TROs pursuant to subsection

10 This language has existed in HRS § 604-10.5 since its passage in 1986.
The legislative history does not indicate what the legislature meant by this
language, but its plain language permits a district court to issue injunctive
relief exceeding three years.

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(f), but subsection (g) then provides district courts with

discretion to issue additional injunctions exceeding the three-

year maximum allowed for permanent injunctions.

This plain language interpretation is supported by the 1999

amendment to HRS § 604-10.5 as well as an ICA opinion.

In 1999, HRS § 604-10.5 was amended to allow TROs to extend

to ninety days from the original language limiting duration to

fifteen days. The Senate Judiciary Committee in Standing

Committee Report 1492 on HB 177 then stated in relevant part:

The purpose of this bill, as received by your Committee, is
to:
. . . .
(2) Extend the maximum duration for a temporary restraining
order to ninety-days;
. . . .
Your Committee finds that these proposed changes to section
604-10.5, Hawaiʻi Revised Statutes, are designed to conform
temporary restraining orders in District Court harassment
cases with Family Court harassment injunction procedures
and standards.

Your Committee recognizes that the fifteen day duration of
a temporary restraining order may be inadequate when
serving a respondent who does not wish to be found, and
that the petitioner must return to court to obtain a
continuance every time the temporary restraining order
expires. However, your Committee is concerned that an ex
parte allegation of harassment should not remain
outstanding for a lengthy period without affording the
respondent an opportunity to be heard. Therefore, it is
your Committee’s intent that the District Court schedule
hearing dates that would enable the respondent to be heard
within fifteen days of the date of service of the temporary
restraining order.

(Emphasis added.)

This shows the 1999 amendment was intended to not allow an

ex parte TRO to continue past fifteen days of service without a

hearing. Thus, the legislature recognized the difference

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between ex parte TROs and “injunctions” other than the three-

year injunction.

The plain language interpretation and the intent of the

legislature’s 1999 amendment is supported by the ICA opinion in

Ling, 91 Hawaiʻi 131, 980 P.2d 1005.11 In Ling, the district

court granted respondent’s request to continue the injunction

petition hearing without addressing its merits, but also

continued the TRO until the next hearing date. 91 Hawaiʻi at

132, 980 P.2d at 1006. After hearing the merits, the district

court dismissed the petition finding insufficient basis for

issuance of an injunction. Id.

The ICA held the term “shall” in the second sentence of HRS

§ 604-10.5(g) mandates that a hearing on the injunction petition

be held within fifteen days of the ex parte TRO.12 91 Hawaiʻi at

11 The ICA filed its opinion on June 28, 1999. Under the version of HRS §
604-10.5 it addressed, a TRO was only valid for fifteen days. HRS § 604-
10.5(e) (1993). However, an amendment allowing the initial TRO to extend to
ninety days took effect on July 1, 1999. 1999 Haw. Sess. Laws Act 143, § 1
at 460-61; S. Stand. Comm. Rep. No. 1492, in 1999 Senate Journal, at 1599-
1600; H. Stand. Comm. Rep. No. 733, in 1999 House Journal, at 1306-07; Conf.
Comm. Rep. No. 86, in 1999 House Journal, at 948, Senate Journal, at 878.

12 At the time of the case, HRS § 604-10.5(f) (Supp. 1998) read:

(f) A hearing on the petition to enjoin harassment shall be
held within fifteen days after it is filed. The parties
named in the petition may file responses explaining,
excusing, justifying, or denying the alleged act or acts of
harassment. The court shall receive such evidence as is
relevant at the hearing, and may make independent inquiry.

If the court finds by clear and convincing evidence that
harassment as defined in paragraph (1) of that definition
exists, it may enjoin for no more than three years further

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133-34, 980 P.2d at 1007-08. The ICA determined that the term

“held” required the parties “at the least, convene or meet in a

hearing on the merits within the allotted time.” 91 Hawaiʻi at

134, 980 P.2d at 1008. The ICA held the district court erred in

granting the continuance beyond fifteen days only because no

hearing on the merits of the petition was held within fifteen

days; the initial hearing dealt with only continuing the

hearing, not the merits of the parties’ arguments. Id.

The ICA also noted, however, that “[t]here may be

exceptional circumstances under which a court may be compelled

to order a continuance, but as we point out infra, any

conceivable prejudice would ordinarily be cured by extending the

initial temporary restraining order.” 91 Hawaiʻi at 135 n.4, 980

P.2d at 1009 n.4. The ICA ultimately held the district court’s

error had no bearing on the court’s dismissal of the petition:

[W]hatever prejudice might have been incurred by Petitioner
as a result of the continuance was dissipated by the
extension of the TRO to the completion of the hearing[.]
The effect of the extension was to maintain the court’s
initial order against harassment until the case was
decided. Although the continuance was in technical
violation of the mandate in HRS § 604-10.5(f), the
protection intended to be afforded a petition until a
resolution of the petition remained intact.

harassment of the petitioner, or that harassment as defined
in paragraph (2) of that definition exists, it shall enjoin
for no more than three years further harassment of the
petitioner; provided that this paragraph shall not prohibit
the court from issuing other injunctions against the named
parties even if the time to which the injunction applies
exceeds a total of three years.

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91 Hawaiʻi at 135, 980 P.2d at 1009.

Thus, in Ling, the ICA held that a hearing on the merits of

an injunction petition must commence within fifteen days of

service of the ex parte TRO on the respondent,13 but that when

hearings on the merits begin, a TRO can be extended beyond the

statutory maximum for an ex parte TRO. 91 Hawaiʻi at 134-35, 980

P.2d at 1008-09. Once the merit hearing begins, the TRO is

actually no longer ex parte.

Synthesizing the above, we hold that if a district court

has commenced hearing the merits of an HRS § 604-10.5 injunction

petition but, despite reasonable efforts, it is unable to

conclude the hearing within ninety days of issuance of the ex

parte TRO, it has jurisdiction and discretion to continue the

TRO pending its final decision on the injunction petition, if

standards for issuance of temporary injunctive relief are met.

In other words, the continued TRO is no longer ex parte.

With respect to the standards for temporary injunctive

relief, we have held:

The test for granting or denying temporary injunctive
relief is three-fold: (1) whether the plaintiff is likely
to prevail on the merits; (2) whether the balance of
irreparable damage favors the issuance of a temporary
injunction; and (3) whether the public interest supports
granting an injunction. However, . . . the more the

13 HRS § 604-10.5(g) requires that a hearing on the merits of an
injunction petition be “held” within 15 days of the issuance of the ex parte
TRO. In Ling, however, the ICA recognized the validity of the TRO extension
despite the lack of a merits hearing within 15 days. 91 Hawaiʻi at 135, 980
P.2d at 1009. District courts should, however, begin hearing the merits of
an injunction petition within 15 days of service of the ex parte TRO.

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 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER ***

balance of irreparable damage favors issuance of the
injunction, the less the party seeking the injunction has
to show the likelihood of his success on the
merits. . . .[T]he standard for a preliminary injunction is
essentially the same as for a permanent injunction with the
exception that the plaintiff must show a likelihood of
success on the merits rather than actual success.

OHA v. HCDCH, 117 Hawaiʻi at 211-12, 177 P.3d at 921-22 (cleaned

up). Hence, district courts should apply these standards in

deciding whether to continue an HRS § 604-10.5 TRO past ninety

days.

C. Attorney fees and costs

Finally, on certiorari, the Bascos also challenge the

district court and ICA awards of attorney fees and costs, but

solely on jurisdictional grounds. No challenge is made as to

the reasonableness of the awards. As the district court had

jurisdiction and the ICA had appellate jurisdiction, we affirm

those awards.

V. Conclusion

For these reasons, we affirm the ICA’s November 1, 2022

judgment on appeal, subject to the clarifications in this

opinion.

Hayden Aluli /s/ Mark E. Recktenwald
for petitioners
/s/ Paula A. Nakayama

Joy Yanagida /s/ Sabrina S. McKenna
for respondents
/s/ Michael D. Wilson

/s/ Todd W. Eddins

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