Olepau v. Hawaiian Homes Commission.

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-DEC-2023
07:53 AM
Dkt. 74 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

---o0o---

STACY ROSQUITA, Personal Representative of the Estate of Leland
Keala Olepau, deceased, Appellant-Appellant,
v.
HAWAIIAN HOMES COMMISSION; KALI WATSON, in his capacity as the
Director of the Department of Hawaiian Home Lands and Chair of
the Hawaiian Homes Commission;1 RANDY AWO, PAULINE NAMU#O,
ZACHARY HELM, DENNIS NEVES, MICHAEL KALEIKINI, and MAKAI FREITAS,
in their capacities as members of the Hawaiian Homes Commission;
and the DEPARTMENT OF HAWAIIAN HOME LANDS, Appellees-Appellees

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NOS. 1CCV-XX-XXXXXXX and 1CCV-XX-XXXXXXX)

DECEMBER 20, 2023

GINOZA, CHIEF JUDGE, LEONARD AND HIRAOKA, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

Leland Keala Olepau was a Department of Hawaiian Home

Lands (DHHL) lessee. He defaulted on his lease and didn't cure

1
The Hawaiian Homes Commission's current chair and members have
been automatically substituted as appellees under Hawai#i Rules of Appellate
Procedure (HRAP) Rule 43(c)(1), and are collectively referred to as the
Commission.
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the default. The Hawaiian Homes Commission cancelled the lease.

Olepau asked the Commission to reconsider. The Commission

declined. Olepau filed two appeals with the circuit court. The

circuit court consolidated the appeals, then dismissed them for

lack of jurisdiction.2 Olepau filed this secondary appeal.

We hold that due process requires Rule 303(c)(10)3 of

the Hawaii Rules of Evidence, Chapter 626, Hawaii Revised

Statutes (HRE) be applied to the Commission's mailing under

Hawaii Administrative Rules (HAR) § 10-5-35(d).4 The

Commission's order cancelling Olepau's lease was served by

regular mail. Olepau was presumed to have received the order

under HAR § 10-5-35(d) and HRE Rule 303(c)(10). Olepau presented

2
The Honorable James H. Ashford presided.
3
The rule's text is quoted below.
4
HAR § 10-5-35 provides:

(a) The commission shall cause to be served all
orders, notices, and other papers issued by the commission,
together with any other papers required by law to be served
by the commission. Every other paper shall be served by the
filing party.

(b) All papers served by either the commission or
any party shall be served upon all counsel of record at the
time of such filing and upon all parties not represented by
counsel or upon their designated agents, in fact or by law.
Any counsel entering an appearance subsequent to the
initiation of the proceeding shall so notify all other
counsel then of record and all parties not represented by
counsel.
(c) The final order, and any other paper required to
be served by the commission upon a party, shall be served
upon such party or upon the representative authorized to
receive service of such papers, and a copy shall be
furnished to all agents designated in fact or by law.
(d) Service upon parties shall be regarded as
complete by mail when deposited in the United States mail
properly stamped and addressed.

(Emphasis added.)

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evidence sufficient to rebut the presumption. The circuit court

should have conducted an evidentiary hearing to decide whether

Olepau received the Commission's order in the ordinary course of

mail. We also hold that Olepau's appeal from the Commission's

denial of his request for reconsideration was timely. We vacate

the circuit court's order dismissing Olepau's appeals, and remand

for further proceedings.

I. BACKGROUND

After Olepau defaulted on his lease, the Commission

ordered him to make monthly payments to cure his delinquency. He

didn't make the payments. The Commission held a contested case

hearing on Olepau's default. Olepau didn't attend the hearing.

On July 29, 2019, the Commission filed its Findings of Fact,

Conclusions of Law and Decision and Order. The Decision and

Order cancelled Olepau's lease. The certificate of service

attached to the Decision and Order stated it was mailed to Olepau

at "41-172 Nakini St. Waimānalo, HI 96795[,]" by first-class mail

on July 29, 2019.

Olepau petitioned the Commission for reconsideration on

January 23, 2020. On February 12, 2020 (before the Commission

ruled on the petition for reconsideration), Olepau filed an

appeal from the Decision and Order, creating Judiciary

Information Management System (JIMS) no. 1CCV-XX-XXXXXXX (the

First Appeal).

By Letter dated February 13, 2020, the Commission

informed Olepau it had no jurisdiction over his petition for
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reconsideration because he didn't ask for reconsideration within

ten days of the Commission's Decision and Order. On March 12,

2020, Olepau filed an appeal from the Letter, creating JIMS

no. 1CCV-XX-XXXXXXX (the Second Appeal).

The Commission and DHHL moved to dismiss the First

Appeal and the Second Appeal. The motions were substantially

identical; they argued that the circuit court lacked subject-

matter jurisdiction because Olepau's notices of appeal were

untimely. The court consolidated the appeals. The court entered

the "Order Granting (1) Appellees' Motion to Dismiss Appeal Filed

February 28, 2020 and (2) Appellees' Motion to Dismiss Appeal

Filed April 3, 2020" (Order Dismissing Appeals) on June 3, 2020.

Olepau filed this secondary appeal.5

II. STANDARD OF REVIEW

"The existence of jurisdiction is a question of law

that we review de novo under the right/wrong standard." In re

Kanahele, 152 Hawai#i 501, 509, 526 P.3d 478, 486 (2023).

III. DISCUSSION

Olepau raises four points of error. Three allege the

Commission made substantive and procedural errors; the circuit

court didn't address them because it dismissed Olepau's appeals

for lack of jurisdiction. We address only Olepau's fourth point

— that the circuit court erred by dismissing his appeals.

5
Olepau died on December 12, 2022. Stacy Rosquita, the personal
representative of Olepau's estate, was substituted for Olepau under HRAP
Rule 43(a).

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A. The circuit court erred by summarily
dismissing the First Appeal.

Hawaii Revised Statutes (HRS) Chapter 91 governs the

right to appeal from an administrative agency's decision. Strict

compliance with those provisions is required; "the timely filing

of a notice of appeal is fundamental to the court's jurisdiction

to review an agency's decision." Korean Buddhist Dae Won Sa

Temple of Haw., Inc. v. Zoning Bd. of Appeals, 9 Haw. App. 298,

303, 837 P.2d 311, 313 (1992), overruled in part on other
grounds, Rivera v. Dep't of Lab. & Indus. Rels., 100 Hawai#i 348,

352 n.7, 60 P.3d 298, 302 n.7 (2002).

HRS § 91-14 (Supp. 2019) provides:

(b) Except as otherwise provided herein, proceedings
for review shall be instituted in the circuit court . . .
within thirty days after service of the certified copy of
the final decision and order of the agency pursuant to rule
of court[.]

When the Commission's Decision and Order was filed,

HAR § 10-5-35(d) stated: "Service upon parties shall be regarded

as complete by mail when deposited in the United States mail
properly stamped and addressed." The Commission's Decision and

Order was filed on July 29, 2019. The certificate of service was

signed by the Commission's Secretary. It certified that the

Decision and Order was sent to Olepau on July 29, 2019, by "USPS

First-Class Mail."

The Hawai#i Rules of Civil Procedure (HRCP) apply to

appeals under HRS § 91-14. Rivera, 100 Hawai#i at 349, 60 P.3d

at 299. "When service is by mail . . . HRCP Rule 6(e) operates

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to provide the parties two additional days to file a notice of

appeal[.]" Id. Thus, the deadline for Olepau to appeal from the

Decision and Order was Friday, August 30, 2019. The First Appeal

(from the Decision and Order) wasn't filed until February 12,

2020, after the deadline.

Olepau argues that his appeal was timely because he

didn't receive the Decision and Order until January 13, 2020, and

his appeal was filed within thirty days of that date. He offered

a declaration stating that he was handed an envelope on

January 13, 2020, that contained a copy of an "order cancelling

my lease" that he had never seen before. The declaration stated:

34. In late December 2019, [my calabash6 nephew] and
I went to the DHHL Kapolei office to make payments on my
loan. I was told by staff that they were not going to
accept my payment because there was an issue with my lease.
They referred me to David Hoke for more information.

35. Because I was worried about my lease and could
appreciate how important it is, I immediately made several
attempts to reach Mr. Hoke. He called me back and told me
that the DHHL was not accepting my payment because my lease
was canceled in July 2019.

36. These conversations were the first I heard of my
lease being canceled.

37. With the help of [my calabash nephew], I called
Grace Lee at the [Native Hawaiian Legal Corporation], who
suggested that I get a copy of any notice of the
cancellation of my lease.
38. On January 13, 2020, I saw several individuals,
parked across the street by my neighbor's house at 41-171
Nakini St., Waimānalo, Hawai#i. It looked like they were
looking for someone.

39. They then came over to my house to speak to me.
40. On that day, Kip Akana of the DHHL handed me an
envelope containing a copy of the July 29, 2019 order
cancelling my lease and notice that I had ten days to ask

6
"Calabash" is a colloquial term referring to a non-blood-relative
who is treated as a family member.

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for reconsideration of the cancellation.
41. I had never seen any copy of this paperwork
before.
42. On the envelope for that paperwork addressed to
me, I noticed that there was the wrong address, 41-289
Nakini st. [sic], on the envelope. That address was
scratched out, and another wrong address, "171," was
handwritten in.

43. Attached hereto as Exhibit "A" is a copy of the
front of the envelope Mr. Akana handed to me on January 13,
2020.
44. I know that I never received this paperwork
before. This must mean that either it was not sent to me or
someone stole my mail.

The copy of the envelope attached to the declaration

was not postmarked. The return address was for DHHL's

Enforcement Section, not the Commission. The envelope's

purported contents were not attached to the declaration.

1. The "prisoner mailbox rule" does not apply.

Olepau cites Setala v. J.C. Penney Co., 97 Hawai#i 484,

40 P.3d 886 (2002) and argues that the "mailbox rule" applies.

Setala recognized the prisoner mailbox rule. Under the prisoner

mailbox rule, a self-represented prisoner's notice of appeal "is

deemed 'filed' . . . on the day it is tendered to prison

officials[.]" Id. at 485, 40 P.3d at 887; see also Fagaragan v.

State, 132 Hawai#i 224, 237, 320 P.3d 889, 902 (2014) (explaining

rationale for the rule). The prisoner mailbox rule has nothing

to do with a person's receipt of an agency order served by mail,

and does not apply to Olepau's notices of appeal.

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2. HRS Chapter 91 applies to the Commission.

Olepau argues that the service provisions of HAR

§ 10-5-35, HRS § 91-14, and HRCP Rule 5(b)(3)7 don't apply to the

Commission, because they "conflict with [the Commission's] trust

obligations to keep its beneficiaries informed regarding facts

affecting their interests." Olepau's argument contradicts

Hawai#i Supreme Court precedent.

[HRS Chapter 91] was adopted to "provide a uniform
administrative procedure for all state and county boards,
commissions, departments or offices which would encompass
the procedure of rule making and adjudication of contested
cases." Hse.Stand.Comm.Rep. No. 8, in 1961 House Journal,
at 653. Because the Commission's administrative powers are
articulated through the rules and regulations of [Hawai#i
Administrative Rules] "in accordance with HRS chapter 91[,]"
(1 Haw.Rev.Stat. 39, 63 (1992 Supp.) (HHCA, 1920, § 222),
[sic] the Commission is a state agency that must conform to
the requirements of [HRS Chapter 91] when acting in the
adjudication of a contested case.

Bush v. Hawaiian Homes Comm'n, 76 Hawai#i 128, 133, 870 P.2d

1272, 1277 (1994) (some citations omitted).

HAR § 10-5-35 specifically applies to the Commission.

3. The HAR § 10-5-35 provision that service is
complete upon mailing must be rebuttable when
the document mailed affects the recipient's
constitutionally protected property right.

Olepau argues that HAR § 10-5-35's provision that

service is complete upon mailing must be rebuttable to avoid

violating his constitutional right to due process. His argument

has merit. He had a constitutionally protected property right in

his DHHL lease. Cf. Aged Hawaiians v. Hawaiian Homes Comm'n, 78

7
HRCP Rule 5 does not apply to proceedings before administrative
agencies.

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Hawai#i 192, 211, 891 P.2d 279, 298 (1995) (holding that

qualified Hawaiian Homes Commission Act beneficiaries on

homestead waiting lists had valid property interest in homestead

awards). The Fifth Amendment to the United States Constitution

provides:

No person shall be . . . deprived of life, liberty, or
property, without due process of law[.]

The Fourteenth Amendment to the United States

Constitution provides:

No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law[.]

Article I, section 5 of the Hawai#i Constitution

provides:

No person shall be deprived of life, liberty or property
without due process of law[.]

In War Eagle Vill. Apartments v. Plummer, 775 N.W.2d

714 (Iowa 2009), Plummer was a tenant at War Eagle Village. She

became delinquent in rent. War Eagle Village filed a summary

possession action. It served Plummer by certified mail, as

allowed by Iowa statute. Plummer didn't appear at the hearing,

which took place seven days after the mailing. She was defaulted

and ordered to vacate the premises. She received the notice two

days after the hearing, when she retrieved the certified letter

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from the post office. But the statute stated that "notice is

received" by the tenant when it is "mailed by certified mail

. . . whether or not the tenant signs a receipt for the

notice[.]" Id. at 718. Plummer appealed. Of the statute, the

Iowa Supreme Court stated: "Dropping a letter in a mailbox is

not notice, yet is deemed sufficient notice. It is mere lip

service to meaningful notice." Id. at 721. The court held that

the Iowa statute, as applied in Plummer's case, violated the Iowa

Constitution's due process clause.8 Id.

Other courts have also held that irrebuttable or

conclusive presumptions that a mailed document is received by the

addressee violate due process requirements. See, e.g., United
States v. Bowen, 414 F.2d 1268, 1273 (3d Cir. 1969) (holding the

presumption that conscientious objector form mailed to draft

inductee was received violates Fifth Amendment due process clause

"insofar as it purports to establish such an irrebuttable

presumption"); Solberg v. Sec'y of Health & Hum. Servs., 583 F.

Supp. 1095, 1097 (E.D. Wis. 1984) (holding the conclusive

presumption that mailed notice of termination of disability

benefits was received violates due process clause, but rebuttable

presumption that shifts burden of presenting credible evidence of

non-receipt to challenging party is constitutional); State ex

rel. Flores v. State, 516 N.W.2d 362, 370 (Wis. 1994) (holding

the presumption of receipt upon mailing of information packet

8
The Iowa Constitution's due process clause states that "no person
shall be deprived of life, liberty, or property, without due process of law."
Plummer, 775 N.W.2d at 719 (quoting Iowa Const. art. I, § 9).

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about criminal defendant's appeal rights may not be given

conclusive effect without violating Fourteenth Amendment due

process clause).

The Decision and Order in this case did not simply

provide information; it had substantive and procedural effects on

Olepau's property right — it cancelled his lease and it fixed the

time within which he could request reconsideration of, or appeal

from, the cancellation. Under those circumstances, due process

requires that HRE Rule 303(c)(10), HRS § 626-1 (2016) be applied

to the Commission's mailing.

HRE Rule 303 (2016) provides:

(a) General rule. A presumption established to
implement no public policy other than to facilitate the
determination of the particular action in which the
presumption is applied imposes on the party against whom it
is directed the burden of producing evidence.

(b) Effect. The effect of a presumption imposing
the burden of producing evidence is to require the trier of
fact to assume the existence of the presumed fact unless and
until evidence is introduced which would support a finding
of its nonexistence, in which case no instruction on
presumption shall be given and the trier of fact shall
determine the existence or nonexistence of the presumed fact
from the evidence and without regard to the presumption.
Nothing in this rule shall be construed to prevent the
drawing of any inferences.

(c) Presumptions. The following presumptions . . .
are presumptions imposing the burden of producing evidence:
. . . .

(10) Letter properly addressed and mailed. A letter
correctly addressed and properly mailed is
presumed to have been received in the ordinary
course of mail[.]

(Emphasis added.)

The Commission's certificate of service stated that the

Decision and Order was mailed, properly addressed, to Olepau on

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July 29, 2019. Under HAR § 10-5-35(d) and HRE Rule 303(c)(10),

Olepau is presumed to have received the Decision and Order in the

ordinary course of mail.9 Olepau had the burden of rebutting the

presumption. He did more than just submit a declaration denying

receipt.10 His declaration (quoted above) provided a copy of an

envelope with the DHHL Enforcement Section's return address, and

a detailed account of when and how he says he first received "a

copy of the July 29, 2019 order cancelling my lease." We hold,

under these circumstances, that Olepau produced evidence

sufficient to rebut the HAR § 10-5-35(d) and HRE Rule 303(c)(10)

presumption of receipt.

4. The circuit court must decide whether Olepau
received the Commission's Decision and Order
in the ordinary course of mail.

We next consider the effect of Olepau's rebuttal. HRE

Rule 301 (2016) provides these definitions:

(3) "Burden of producing evidence" means the obligation of
a party to introduce evidence of the existence or
nonexistence of a relevant fact sufficient to avoid an
adverse peremptory finding on that fact.

(4) "Burden of proof" means the obligation of a party to
establish by evidence a requisite degree of belief
concerning a relevant fact in the mind of the trier of
fact. The burden of proof may require a party to
establish the existence or nonexistence of a fact by a

9
The Commission's form of certificate of service included an option
for service by "Certified Mail, Return Receipt Requested[.]" We express no
opinion about whether, or how, HRE Rule 303 would apply had the Decision and
Order been mailed to Olepau in that manner.
10
We express no opinion about whether submission of a declaration
simply denying receipt would be sufficient to rebut the presumption. See
Solberg, 583 F. Supp. at 1098 (self-serving allegations of plaintiff and her
father were not sufficient to overcome presumption that properly mailed letter
had been duly delivered to plaintiff).

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preponderance of the evidence or by clear and
convincing proof.

The HRE Rule 303(c)(10) presumption imposes a burden of

producing evidence. As described by Professor Bowman:

The effect of each of the burden of production
presumptions of rule 303 is to require a finding of the
presumed fact unless "evidence is introduced which would
support a finding of its nonexistence," in which event the
presumption vanishes and the factfinder decides the matter
as it would any other contested fact issue. As described in
the commentary to rule 302, this is the "bursting bubble."
The contradictory evidence that dispels the presumption can
be direct or circumstantial, but it must be sufficient to
support a determination of the nonexistence of the presumed
fact.

A. Bowman, Hawaii Rules of Evidence Manual, § 303-1[2], at 3-12

(2022-2023 ed.) (LexisNexis).

The official commentary to HRE Rule 302 states:

Disagreement over the nature, scope, and effect of
legal presumptions has gone on for decades. The position
most widely adopted in American jurisdictions is the Thayer
view, sometimes termed the "bursting bubble" theory,
McCormick §[ ]345. The sole effect of a legal presumption,
in this view, is to impose upon the party against whom it is
directed the requirement of producing evidence adequate to
sustain a finding of its nonexistence. If this requirement
is met, the presumption disappears. See W. Thayer,
Preliminary Treatise on Evidence, 313-352 (1898). This
theory is endorsed by Wigmore, see 9 J. Wigmore, A Treatise
on the Anglo-American System of Evidence in Trials at Common
Law §[ ]2491(2) (3d ed. 1940), with slight modifications,
id. at §[ ]2498a, and is reflected in Fed. R. Evid. 301.

(Bracketed material omitted.)

The current reference to the "bursting bubble" from

McCormick on Evidence is:

[U]nder what has become known as the Thayer or "bursting
bubble" theory, the only effect of a presumption is to shift
the burden of producing evidence with regard to the presumed
fact. If that evidence is produced by the adversary, the
presumption is spent and disappears.

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2 Kenneth S. Broun et al., McCormick on Evidence § 344 (8th ed.

2020, July 2022 Update).

Once Olepau submitted evidence sufficient to rebut the

presumption of receipt, the circuit court had to decide by a

preponderance of evidence whether Olepau actually received the

Decision and Order in the ordinary course of mail. We remand to

the circuit court to determine, by evidentiary hearing under HRS

§ 91-14(f) (Supp. 2019), whether Olepau received the Commission's

Decision and Order in the ordinary course of mail, and for entry

of findings of fact and conclusions of law under HRCP Rule 52(a).

If the circuit court finds that Olepau first received the

Decision and Order on January 13, 2020 (as he claimed), the First

Appeal would be timely. See HRS § 91-14(b).

B. The circuit court erred by dismissing the
Second Appeal.

The Second Appeal requires a different analysis.

Olepau appealed from the Commission's February 13, 2020 Letter

denying his petition for reconsideration. His notice of appeal

was filed on March 12, 2020, within 30 days after the

Commission's Letter was mailed. Thus, the Second Appeal was

filed within the time required by HRS § 91-14(b). The circuit

court erred by dismissing the Second Appeal for lack of

jurisdiction.

IV. CONCLUSION

For these reasons, we vacate the circuit court's "Order

Granting (1) Appellees' Motion to Dismiss Appeal Filed
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February 28, 2020 and (2) Appellees' Motion to Dismiss Appeal

Filed April 3, 2020" entered on June 3, 2020, and remand for

further proceedings.

On the briefs:
/s/ Lisa M. Ginoza
David Kauila Kopper, Chief Judge
Hailialoha Hopkins,
for Appellant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Craig Y. Iha,
Ryan K. P. Kanakaole, /s/ Keith K. Hiraoka
Deputy Attorneys General, Associate Judge
State of Hawai#i,
for Appellees-Appellees.

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