State v. Milne. ICA mem. op., filed 06/26/2020.

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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               23-JUN-2021
                                                               10:56 AM
                                                               Dkt. 6 OP



            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

                           STATE OF HAWAIʻI,
                    Respondent/Plaintiff-Appellant,

                                     vs.

                         NOGUCHI MILNE,
                 Petitioner/Defendant-Appellee.
________________________________________________________________

                             SCWC-XX-XXXXXXX

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-XX-XXXXXXX; CR. NO. 1FFC-XX-XXXXXXX)

                               JUNE 23, 2021

                 OPINION OF THE COURT BY McKENNA, J.

                            I.    Introduction

     In Count 1 of a complaint filed in the Family Court of the

First Circuit (“family court”), the State of Hawaiʻi (“the

State”) charged Noguchi Milne (“Milne”) with abuse of family or

household member, in violation of Hawaiʻi Revised Statutes

(“HRS”) § 709-906(1) and (5) (2014), against Complaining Witness



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1 (“CW1”).1      Count 2 charged Milne with third degree assault in

violation of HRS § 707-712(1)(a) (2014) against Complaining

Witness 2 (“CW2”).2

      The family court granted Milne’s oral motion to dismiss

Count 2, concluding it lacked subject matter jurisdiction over

that count.      On appeal, the Intermediate Court of Appeals

(“ICA”) concluded the family court erred in dismissing Count 2

because the family court had concurrent subject matter

jurisdiction over the charge based on HRS § 571-14(b) (2014).

The ICA ordered that Count 2 be remanded to the family court for

further proceedings consistent with its memorandum opinion.

      On certiorari, Milne concedes that the family court had

concurrent jurisdiction over Count 2.           Milne argues, however,

that the family court did not dismiss Count 2 based on a lack of

subject matter jurisdiction.         He maintains the family court had


1     HRS § 709-906 states in relevant part:

             (1) It shall be unlawful for any person, singly or in
             concert, to physically abuse a family or household member
             or to refuse compliance with the lawful order of a police
             officer under subsection (4). The police, in investigating
             any complaint of abuse of a family or household member,
             upon request, may transport the abused person to a hospital
             or safe shelter.

                   . . . .

             (5) Abuse of a family or household member and refusal to
             comply with the lawful order of a police officer under
             subsection (4) are misdemeanors[.]

2     HRS § 707-712(1)(a) states in relevant part: “(1) A person commits the
offense of assault in the third degree if the person: (a) Intentionally,
knowingly, or recklessly causes bodily injury to another person[.]”

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discretion to decline the exercise of its concurrent

jurisdiction over Count 2.

       For the reasons explained below, we hold as follows:

(1) the ICA was correct in ruling that the family court

dismissed Count 2 for lack of subject matter jurisdiction and

erred by doing so, as HRS § 571-14(b) provided the family court

with concurrent subject matter jurisdiction over Count 2; and

(2) the family court continues to have subject matter

jurisdiction over Count 2 despite the dismissal of Count 1 with

prejudice, and it is for the family court to address Count 2 on

remand.

                                II.   Background

A.     Factual and procedural background

       1.     Family court proceedings

       On June 18, 2019, Milne was charged in the family court via

complaint for events allegedly occurring on June 16, 2019, as

follows: (1) Count 1, with respect to CW1, his girlfriend, abuse

of family or household members in violation of HRS § 709-906(1)

and (5); and (2) Count 2, with respect to CW2, CW1’s father,

third degree assault in violation of HRS § 707-712(1)(a).

       At a trial call on July 22, 2019, the State requested a

continuance because the complaining witnesses were not present




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despite being subpoenaed.         The family court3 orally granted the

continuance over Milne’s objection.           Milne then orally moved to

dismiss Count 2 for lack of subject matter jurisdiction,

asserting that the family court lacked subject matter

jurisdiction because although CW1 was Milne’s girlfriend, CW2,

CW1’s father, did not live or reside in the same household as

Milne.     The State requested that the defense submit a written

motion so it could appropriately respond, but the family court

asked the State to “take a look at 571-14”:

             THE COURT:   Can you take a look at 571-14, counsel? . . . .

                   . . . .

             THE COURT: So look at subsection []((b),[4] counsel.
             [Deputy prosecuting attorney (“DPA”)]: And, your honor,
             under section [](b) the –- the court would have concurrent
             jurisdiction over the Assault Third given the –- it’d be
             one of the offenses in this case would be under the
             jurisdiction of Family Court, which would be the Count 1.
             THE COURT: [Deputy public defender (“DPD”)], your response
             to that, under subsection [](b)?
             [DPD]: Your honor, and my response to that is that under
             subsection [](b) is that that’s if it was as to pertaining
             to the same complaining witness. However, in this matter
             the two different counts are represented by offenses, again
             two different complaining witnesses. Therefore the court
             does not have jurisdiction over Count 2 relating to the
             second complaining witness.
             THE COURT: And where do you get the limiting language that
             it has to relate to the same complaining witness?
             [DPD]: Your honor, that –- I don’t –- there is no limiting
             language but that is the defense’s argument.

3     Unless otherwise indicated, the Honorable Kevin A. Souza presided.

4     HRS § 571-14(b) provides:

             (b) The court shall have concurrent jurisdiction with the
             district court over violations of sections 707-712, 707-
             717, 707-722, 708-822, 708-823, 710-1010.5, 711-1106, and
             711-1106.5 when multiple offenses are charged through
             complaint or indictment and at least one offense is a
             violation of an order issued pursuant to chapter 586 or a
             violation of section 709-906.

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           THE COURT: [DPA]?
           [DPA]: And, your honor, as the court stated there is no
           limiting language under 571-14[](b) as to limit or to
           distinguish that it had to be the same complaining witness.
           Just that one of the offenses charged through the complaint
           would be pursuant to chapter 586 (indiscernible).
           THE COURT: All right. And the complaining witness in
           Count 2, again, the representation of the defense is that
           the complaining witness is girlfriend’s father?
           [DPA]: That’s correct. That’s accurate.

    The family court then orally granted Milne’s motion,

stating:

           THE COURT: All right. The court reads 571-14 as
           permissive and not mandatory as to section (b), and because
           the complaining witness in Count 2 is not a family or
           household member to Mr. Milne, the court is, based on the
           representations of counsel, going to be dismissing Count 2
           without prejudice and the State would be free to refile
           Count 2 in District Court as to that complaining witness.
           All right?

    The family court filed its written order dismissing Count 2

on July 26, 2019 (“dismissal order”), which stated in relevant

part:

                 After consideration of the arguments of counsels,
           this Court granted the Defendant’s oral motion to dismiss
           Count II for lack of Subject Matter Jurisdiction, and it is
           further ordered that Count II be dismissed without
           prejudice.
                 IT IS HEREBY ORDERED that the Defendant’s Oral Motion
           to dismiss Count II is GRANTED. Furthermore, Count II is
           dismissed without prejudice for lack of Subject Matter
           Jurisdiction.

    The State appealed the Count 2 dismissal order to the ICA

on August 23, 2019.      At a September 16, 2019 trial call, CW1 and

two other civilian witnesses, who were subpoenaed, failed to

appear in court.     The State orally requested another

continuance.    Milne objected and orally moved to dismiss Count 1




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with prejudice.       The family court5 denied the request for a

continuance and granted Milne’s oral motion to dismiss Count 1

with prejudice.

        Then, on November 22, 2019, the family court entered

findings of fact and conclusions of law (“11/22/19 FOFs/COLs”).

In its 11/22/19 FOFs/COLs, the family court maintained that even

if it had jurisdiction over Count 2, the dismissal of Count 1

with prejudice rendered the State’s appeal moot.              It also opined

that even if the State’s appeal was successful, Count 2 should

no longer be prosecuted in the family court, as it was not

coupled with an offense over which the family court had

exclusive, original jurisdiction.           The family court also posited

that the State’s only option going forward was to proceed with

Count 2 in the district court, as it had ordered in the

dismissal order.       It also maintained that any other outcome

“would lead to the tortuous result of the Family Court being

forced to proceed to trial on a single charge (Assault 3) over

which it does not have exclusive, original jurisdiction – and

between two parties who are not family or household members.”

The family court contended that the State’s ongoing practice of

using HRS § 571-14(b) to “bootstrap” additional cases involving

non-family members threatened to transform the family court from


5       The Honorable Brian A. Costa presided over the September 16, 2019 trial
call.
                                                               (continued . . .)

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a court of limited jurisdiction into one of general

jurisdiction.6

      2.     ICA proceedings

      On appeal to the ICA, in summary, the State argued that the

family court erred as a matter of law by dismissing Count 2 for

lack of subject matter jurisdiction.           In response, Milne

conceded the family court had concurrent jurisdiction over Count

2, but also asserted it was only as long as Count 1 was pending.

Milne also contended the family court’s decision to decline

jurisdiction should be reviewed under the abuse of discretion

standard, citing to NB v. GA, 133 Hawaiʻi 436, 329 P.3d 341 (App.




6     The ICA did not address the merits of the family court’s 11/22/19
FOFs/COLs on the grounds the family court lacked jurisdiction to enter them.
State v. Milne, CAAP-XX-XXXXXXX, 2020 WL 6375352 (App. Oct. 30, 2020) (mem.),
at 7. The ICA noted that when an adult is charged with a crime, the Hawaiʻi
Rules of Penal Procedure (“HRPP”) govern. Milne, mem. op. at 7 n.9 (citing
State v. Gonsales, 91 Hawaiʻi 446, 449, 984 P.2d 1272, 1275 (1999); Hawaiʻi
Family Court Rules (“HFCR”) Rule 81(c) (2015) (“Cases for adults charged with
the commission of a crime coming within the jurisdiction of the family courts
shall be governed by the [HRPP].”)). The ICA cited to HRPP Rule 23(c), which
provides for a court to make findings “[i]n a case tried without a jury” and
if requested, to make special findings “at any time prior to sentence.” Id.
The ICA ruled HRPP Rule 23(c) did not authorize the 11/22/19 FOFs/COLs
relating to the dismissal order; in short, the ICA concluded the family court
did not have jurisdiction to enter the 11/22/19 FOFs/COLs related to the
dismissal order, citing to HRPP Rule 23(c). Id. HRPP Rule 23(c), however,
is part of the rule entitled “Trial by Jury or by the Court,” and does not
govern. Rather, as our family courts are a division of our circuit courts,
see HRS § 571-3 (2006) (“The family courts shall be divisions of the circuit
courts of the State and shall not be deemed to be other courts as that term
is used in the State Constitution.”), HRPP Rule 44A(a) (2011), pertaining to
“Settlement of Findings of Fact, Conclusions of Law, and Order; Entry of
Order” in the circuit courts, governs here. There has been no separate
appeal of the 11/22/19 FOFs/COLs, and, as the ICA noted, none of the ICA
briefs, all of which were filed after the 11/22/19 FOFs/COLs, mention the
11/22/19 FOFs/COLs. Id. We address the 11/22/19 FOFs/COLs later in this
opinion.
                                                             (continued . . .)

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2014).7     Milne asserted the family court had actually properly

exercised its discretion to dismiss Count 2.

      In its October 30, 2020 amended memorandum opinion, the ICA

vacated the dismissal order, holding the family court erred by

dismissing Count 2 for lack of subject matter jurisdiction.

Milne, mem. op. at 6, 8.         The ICA noted Milne now appropriately

conceded on appeal that the family court “had concurrent subject

matter jurisdiction over Count 2 as long as Count 1 was

pending.”      Milne, mem. op. at 5.        The ICA explained that under

the plain language of HRS § 571-14(b), the family court has

concurrent jurisdiction with the district court over violations

of specific offenses, including HRS § 707-712 (third degree

assault), when multiple offenses are charged in a complaint or

indictment and at least one offense is, inter alia, a violation

of HRS § 709-906 (abuse of family or household members).                 Id.

The ICA reasoned that even if there was an ambiguity as to

whether HRS § 571-14(b) limits charges of multiple offenses to



7     This case stated in relevant part:

             A family court’s decision to decline jurisdiction is
             reviewed for abuse of discretion. See Fisher v. Fisher,
             111 Hawaiʻi 41, 46, 137 P.3d 355, 360 (2006) (“‘[An
             appellate court] will not disturb the family court’s
             decisions on appeal unless the family court disregarded
             rules or principles of law or practice to the substantial
             detriment of a party litigant and its decision clearly
             exceeded the bounds of reason.’” (quoting In re Doe, 95
             Hawaiʻi 183, 189–90, 20 P.3d 616, 622–23 (2001))).

NB, 133 Hawaiʻi at 444, 329 P.3d at 349.

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the same complaining witness, its legislative history reflected

otherwise.      Id.; see Milne, mem. op. at 5-6; S. Stand. Comm.

Rep. No. 2649, in 1998 Senate Journal, at 1071 (“For example, if

a person assaults another individual while violating a family

court restraining order, under current law the [] two violations

of law would be heard in separate courts.            Your Committee

further finds that concurrent jurisdiction will make the

judicial process in these instances more efficient and

effective.”).      The ICA stated Act 64 of 1998, which added

subsection (b) to HRS § 571-14, also showed the legislature

intended to provide for concurrent jurisdiction, even when the

multiple charged offenses involved different complaining

witnesses.      Milne, mem. op. at 5-6.8

      The ICA noted Milne made speculative arguments on appeal as

to why the family court allegedly decided not to exercise its

concurrent jurisdiction, based on his assertion of different



8     The ICA also cited another committee report in support:

                   Your Committee finds that one incident can give rise
             to several different charges. Some of these charges, like
             a violation of a family court restraining order or
             misdemeanor abuse of family and household member, fall
             under the jurisdiction of the family court, while others
             may fall under the jurisdiction of the circuit or district
             courts. Current law prevents the State from bringing all
             the related charges at one time before one court.
                   This bill addresses that problem by giving the
             circuit, district, and family courts concurrent
             jurisdictions over certain offenses[.]

Milne, mem. op. at 6 n.8 (quoting H. Stand. Comm. Rep. No. 1055-98, in 1998
House Journal, at 1482).

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scenarios that could occur and purported inferences that had no

basis on the record.         Id.

       The ICA filed its judgment on appeal on November 12, 2020,

remanding the case to the family court for further proceedings

consistent with its amended memorandum opinion.

       3.     Supreme court certiorari application

       On certiorari, Milne presents the following question:

“Whether the ICA committed grave error in concluding that the

Family Court had jurisdiction over Count 2.”              Milne repeats his

arguments made to the ICA.          The State did not respond.

                           III. Standards of review

A.     Statutory interpretation

                    Statutory interpretation is a question of law
              reviewable de novo. In reviewing questions of statutory
              interpretation, we are guided by the following principles:

                          First, the fundamental starting point for
                    statutory-interpretation is the language of the
                    statute itself. Second, where the statutory language
                    is plain and unambiguous, our sole duty is to give
                    effect to its plain and obvious meaning. Third,
                    implicit in the task of statutory construction is our
                    foremost obligation to ascertain and give effect to
                    the intention of the legislature, which is to be
                    obtained primarily from the language contained in the
                    statute itself. Fourth, when there is doubt,
                    doubleness of meaning, or indistinctiveness or
                    uncertainty of an expression used in a statute, an
                    ambiguity exists.

State v. Castillon, 144 Hawaiʻi 406, 411, 443 P.3d 98, 103 (2019)

(cleaned up).




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B.     Subject matter jurisdiction

       “Whether a court possesses subject matter jurisdiction is a

question of law reviewable de novo.”              Kakinami v. Kakinami, 127

Hawaiʻi 126, 136, 276 P.3d 695, 705 (2012).

                                  IV.   Discussion

A.     The ICA was correct in ruling that the family court
       dismissed Count 2 for lack of subject matter jurisdiction
       and erred by doing so, as HRS § 571-14(b) provided the
       family court with concurrent subject matter jurisdiction
       over Count 2

       At the ICA and again at this court, Milne concedes that the

family court had concurrent jurisdiction over Count 2 based on

HRS § 571-14(b).          The ICA correctly held that the family court

had concurrent jurisdiction over Count 2.              HRS § 571-14(b)

states:

              § 571-14.    Jurisdiction; adults

                    . . . .

              (b) The court shall have concurrent jurisdiction with the
              district court over violations of sections 707-712, 707-
              717, 707-722, 708-822, 708-823, 710-1010.5, 711-1106, and
              711-1106.5 when multiple offenses are charged through
              complaint or indictment and at least one offense is a
              violation of an order issued pursuant to chapter 586 or a
              violation of section 709-906.

       The plain language of HRS § 571-14(b) provides the family

court with “concurrent jurisdiction with the district court over

violations of section[] 707-712[] . . . when multiple offenses

are charged through complaint” and “at least one offense is a

violation . . . of section 709-906.”              Here, Milne was charged

via complaint with a violation of HRS § 709-906 in Count 1.

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Thus, based on the plain language of the statute, the family

court had concurrent jurisdiction with the district court over

Count 2 charging a violation of HRS 707-712.

    Because the plain language of HRS § 571-14(b) is

unambiguous, we need not turn to the next step of statutory

interpretation, which is to ascertain and give effect to the

intent of the legislature.       But as the ICA explained, even if

the statute was ambiguous, the legislative history of

HRS § 571-14(b) confirms legislative intent to provide for

concurrent jurisdiction when charged offenses involved different

individuals.    See Milne, mem. op. at 5-6.

    Milne repeats his argument, however, that based on oral

statements made before its ruling, the family court did not

actually dismiss Count 2 based on a lack of subject matter

jurisdiction.    Milne asserts the family court acknowledged it

had concurrent subject matter jurisdiction but exercised

discretion to decline concurrent subject matter jurisdiction.

    Milne’s assertions are devoid of merit.            The family court

expressly stated it was dismissing Count 2 because the

complaining witness was not the same person as that for the

abuse charge in Count 1.       Also, as the ICA noted, Milne makes

speculative arguments with no basis in the record as to why the

family court allegedly decided not to exercise its concurrent




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jurisdiction.      But Milne’s argument is problematic for

additional reasons.

      First, Milne suggests the family court had discretion to

dismiss the concurrent charge and require that it be refiled in

district court.       Subject matter jurisdiction, however, is a

matter of law, not a matter of discretion.            Pursuant to article

VI, section 1 of the Hawaiʻi Constitution, our state courts “have

original and appellate jurisdiction as provided by law[.]”

Through HRS § 571-14(b), the legislature provided our family

courts with concurrent jurisdiction over certain matters.

HRS § 571-8.5(a)(3) (2018) provides that a family court judge

may “[m]ake and issue all orders and writs necessary or

appropriate in aid of their original jurisdiction.”              (Emphasis

added.)     And, in general, “[i]t is a judge’s duty to decide all

cases within [the judge’s] jurisdiction that are brought before

[the judge.]”      Pierson v. Ray, 386 U.S. 547, 554 (1967)

(emphasis added).9

      Second, contrary to Milne’s assertion that the family court

exercised discretion to dismiss Count 2, the family court

expressly stated in its dismissal order that it dismissed Count

2 for lack of subject matter jurisdiction.            As explained, this

written ruling was actually consistent with the family court’s



9     See infra note 11 for an exception to the general rule.

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oral ruling.       But even if the written order had been

inconsistent with the oral ruling, as the ICA has repeatedly

stated, a trial court’s written order controls over its oral

statements.10       On this point, we agree with authority cited by

the ICA in its rulings that a judge’s written order generally

controls over its oral statements.            See Nat’l Home Centers, Inc.

v. Coleman, 257 S.W.3d 862, 863 (Ark. 2007) (“If a trial court’s

ruling from the bench is not reduced to writing and filed of

record, it is free to alter its decision upon further

consideration of the matter.          Simply put, the written order

controls.” (cleaned up)); Owens v. Magill, 419 S.E.2d 786, 791

(S.C. 1992) (holding that a judge was not bound by prior oral

ruling and could issue written order which conflicted with prior

oral ruling); Ladd by Ladd v. Honda Motor Co., Ltd., 939 S.W.2d

83, 104 (Tenn. Ct. App. 1996) (“A court speaks only through its

written orders.”); Ratcliff v. Cyrus, 544 S.E.2d 93, 96 n.14

(Va. 2001) (“[W]hen presented with conflicting signals from a

circuit court, the law favors written orders over oral

statements.”).




10    See, e.g., State v. Zhang, CAAP-XX-XXXXXXX, 2020 WL 733971, at *3 (App.
Feb. 13, 2020) (SDO) (“The written order controls over the oral statements
the District Court made at the March 13, 2019 hearing.” (citing Kono v.
Abercrombie, CAAP-XX-XXXXXXX, 2013 WL 1758960, at *4 (App. Apr. 24, 2013)
(mem.)).
                                                             (continued . . .)

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       The family court’s written order expressly dismissed Count

2 for an alleged lack of subject matter jurisdiction; this order

controls.       For this reason also, we reject Milne’s argument that

the family court declined to exercise concurrent jurisdiction

based on other considerations.11

       Hence, the ICA correctly ruled that the family court

dismissed Count 2 for lack of subject matter jurisdiction and

erred by doing so.

B.     The family court continues to have subject matter
       jurisdiction over Count 2 despite the dismissal of Count 1
       with prejudice, and it is for the family court to address
       Count 2 on remand

       In its amended memorandum opinion, the ICA indicated Milne

had properly conceded on appeal that the family court “had

concurrent subject matter jurisdiction over Count 2 as long as

Count 1 was pending.”         Milne, mem. op. at 5 (emphasis added).

The ICA’s judgment on appeal then remanded Count 2 to the family

court for further proceedings consistent with its memorandum

opinion.

11    Also, as the ICA reasoned, NB, the case Milne cites in support of his
argument that the abuse of discretion standard of review applies, is
distinguishable. In NB, the ICA vacated the family court’s decision to
decline jurisdiction based on its lack of findings on the statutory factors
to determine whether Hawaiʻi was an inconvenient forum pursuant to
HRS § 583A-207 (2016), which reads in relevant part: “A court of this State
which has jurisdiction under this chapter to make a child-custody
determination may decline to exercise its jurisdiction at any time if it
determines that it is an inconvenient forum under the circumstances and that
a court of another state is a more appropriate forum.” 133 Hawaiʻi at 443-44,
329 P.3d at 348-49. Here, not only did the family court’s written dismissal
order state it dismissed Count 2 for lack of subject matter jurisdiction,
HRS § 571-14(b) does not give the family court discretion to decline
jurisdiction, unlike the statute at issue in NB.

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       As noted, however, after the State’s August 23, 2019 notice

of appeal to the ICA of the Count 2 dismissal order, the family

court granted Milne’s motion to dismiss Count 1 with prejudice.

It is unclear whether the ICA agreed with Milne’s concession on

appeal that the family court had concurrent subject matter

jurisdiction over Count 2 as long as Count 1 was pending, and

Count 1 is no longer pending.

       Also after the notice of appeal, the family court entered

its 11/22/19 FOFs/COLs stating its apparent positions with

respect to Count 2.         Based on the importance of the issues

presented in the 11/22/19 FOFs/COLs, pursuant to our supervisory

powers under HRS § 602-4 (2016),12 we provide guidance to the

family court on remand.

       First, in its 11/22/19 FOFs/COLs, the family court

maintained that even assuming it had jurisdiction over Count 2,

the dismissal of Count 1 with prejudice rendered the State’s

appeal moot.       It can be inferred from this that the family court

is under the impression that its subject matter jurisdiction

over Count 2 disappeared with the dismissal of Count 1.                The

family court’s concurrent subject matter jurisdiction over Count

2 did not disappear, however, when Count 1 was dismissed.



12    HRS § 602-4 provides, “Superintendence of inferior courts. The supreme
court shall have the general superintendence of all courts of inferior
jurisdiction to prevent and correct errors and abuses therein where no other
remedy is expressly provided by law.”

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    Under HRS § 571-14(b), the family court’s concurrent

subject matter jurisdiction over Count 2 was invoked when

assault was charged along with the HRS § 709-906 abuse charge in

Count 1.   See HRS § 571-14(b) (“The court shall have concurrent

jurisdiction with the district court over [a] violation[] of

section[] 707-712 . . . when multiple offenses are charged

through complaint [] and at least one offense is . . . a

violation of section 709-906.” (emphasis added)).

HRS § 571-14(b) does not require the abuse or restraining order

charge continue to be pending for subject matter jurisdiction to

continue over a concurrent charge.         Nothing in the legislative

history of Act 64 of 1998 indicates the legislature so intended,

and such a result would be absurd.         If subject matter

jurisdiction over a concurrent charge disappears upon dismissal

of the abuse or restraining order charge, double jeopardy issues

would arise for the concurrent charge if a judge dismisses the

abuse or restraining order charge after commencement of trial.

In addition, if dismissal of or judgment upon a plea to an abuse

or restraining order charge eliminated family court jurisdiction

over a concurrent charge, statute of limitations issues could

arise for refiling in district court.         In summary, despite the




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family court’s dismissal of Count 1, its subject matter

jurisdiction over Count 2 continues.13

       Second, the family court indicated that if the State’s

appeal was successful, Count 2 should no longer be prosecuted in

the family court, as it would no longer be coupled with an

offense over which the family court had “exclusive,” original

jurisdiction.       Contrary to the family court’s statement, after

Act 64 of 1998, the family court no longer has “exclusive”

original jurisdiction over HRS § 709-906 charges in certain

circumstances, such as those here.            Act 64 of 1998 amended

HRS § 571-14 to add the underlined language:

              (a) Except as provided in sections 603-21.5 and 604-8, the
              court shall have exclusive original jurisdiction:

                   (1) To try any offense committed against a child by the
              child’s parent or guardian or by any other person having the
              child’s legal or physical custody, and any violation of
              section 707-726, 707-727, 709-902, 709-903, 709-903.5,
              709-904, 709-905, 709-906, or 302A-1135, whether or not
              included in other provisions of this paragraph or paragraph
              (2)[.]

1998 Haw. Sess. Laws Act 64, § 1 at 143.             The amendments to HRS

§§ 603-21.5 and 604-8 reciprocally provided the circuit and

district courts with concurrent jurisdiction with the family

courts over crimes over which the family courts previously had




13    Also, even if the dismissal of Count 1 had rendered the appeal of the
Count 2 dismissal moot, exceptions to the mootness doctrine would most likely
have applied. See State v. Tui, 138 Hawaiʻi 462, 467-68, 382 P.3d 274, 279-80
(2016).
                                                             (continued . . .)

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exclusive original jurisdiction, when concurrently charged with

certain crimes in those courts.14

       Third, the family also stated in its 11/22/19 FOFs/COLs

that the State’s only option going forward was to proceed with

Count 2 in the district court, as it had ordered in the

dismissal order.        The legislature, however, promulgated Act 64

of 1998 to further judicial efficiency.             See S. Stand. Comm.

Rep. No. 2649, in 1998 Senate Journal, at 1071 (“Your Committee


14    In relevant part, Act 64 of 1998 amended HRS § 603-21.5 to add the
underlined language:

              (b) The several circuit courts shall have concurrent
              jurisdiction with the family court over:

                    (1) Any felony under section 571-14, violation of an
                    order issued pursuant to chapter 586, or a violation
                    of section 709-906 when multiple offenses are charged
                    through complaint or indictment and at least one
                    other offense is a criminal offense under subsection
                    (a)(1); and
                    (2) Any felony under section 571-14 when multiple
                    offenses are charged through complaint or indictment
                    and at least one other offense is a violation of an
                    order issued pursuant to chapter 586, a violation of
                    section 709-906, or a misdemeanor under the
                    jurisdiction of section 604-8.

1998 Haw. Sess. Laws Act 64, § 1 at 143-44.

      In relevant part, Act 64 of 1998 amended HRS § 604-8 to add the
underlined language:

              (b) The district court shall have concurrent jurisdiction
              with the family court of any violation of an order issued
              pursuant to chapter 586 or any violation of section 709-906
              when multiple offenses are charged through complaint or
              indictment and at least one other offense is a criminal
              offense within the jurisdiction of the district courts.

1998 Haw. Sess. Laws Act 64, § 3 at 144.

      The ICA erred to the extent that it stated the circuit court did not
get concurrent jurisdiction over the specified offenses in the family and
district courts. See Milne, mem. op. at 6 n.8.

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further finds that concurrent jurisdiction will make the

judicial process [] more efficient and effective.”).            Requiring

Count 2 to be refiled in district court is not only inefficient,

but as noted, a court has a duty to decide all cases within its

jurisdiction that are brought before it.

    Fourth, according to the family court, any outcome other

than requiring that Count 2 be dismissed then refiled in the

district court “would lead to the tortuous result of the Family

Court being forced to proceed to trial on a single charge

(Assault 3) over which it does not have exclusive, original

jurisdiction – and between two parties who are not family or

household members.”      The family court objects to the State’s

reliance on HRS § 571-14(b) to allegedly “bootstrap” additional

cases involving non-family members, which it apparently believes

threatens to transform the family court from a court of limited

jurisdiction into a court of general jurisdiction.

    Contrary to the family court’s statements, however, it is

appropriate for our family courts to address various charges

arising out of the same domestic violence event, even if the

complaining witness is not a family or household member or

petitioner.    Family court judges are knowledgeable about and

receive specialized training on various issues and concerns

arising out of domestic violence.         In addition, Act 64 of 1998,

of which the amendment to HRS § 571-14(b) is only a part,

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greatly improved inefficiencies and redundancies that previously

existed for prosecutors, defendants, witnesses, and the courts.

Before Act 64 of 1998, there were many situations in which

charges involving different victims in the same domestic

violence event had to be filed separately in circuit, family, or

district courts due to their respective jurisdictional

limitations.         This meant that different prosecutors and courts

would be required to address the same event, while defendants,

complaining witnesses, and other eyewitnesses,15 including law

enforcement, could be subpoenaed to appear in different courts

on different days for charges arising out of the same event.

Due to the confusing nature of the charges and courts, and due

to impracticalities, some charges were therefore dismissed and

some possible charges were never brought.              And contrary to the

family court’s apparent belief that Act 64 of 1998 only requires

the family court to address additional charges over which it

previously lacked jurisdiction, Act 64 of 1998 also allowed

criminal charges that were previously required to be brought in

family court to be brought in circuit and district courts.16

This means that the circuit and district courts also now preside




15    The “complaining witness” in one court could become an “eyewitness” in
another court.

16         See supra note 14.
                                                                 (continued . . .)

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over charges that previously would have been handled by the

family courts.17

       Therefore, under the circumstances of this case, it is for

the family court to address Count 2 upon remand.18

                                V.    Conclusion

           For the reasons stated above, the ICA’s judgment on appeal

is affirmed, as clarified by this opinion.

William H. Jameson, Jr.,                     /s/ Mark E. Recktenwald
for petitioner
                                             /s/ Paula A. Nakayama
Chad M. Kumagai
(on the briefs),                             /s/ Sabrina S. McKenna
for respondent
                                             /s/ Michael D. Wilson

                                             /s/ Todd W. Eddins




17    For example, the ICA previously ruled in State v. Dela Cruz, CAAP-11-
0000367, 2013 WL 275547, at *1 (App. Jan. 24, 2013) (SDO), that the district
court erred by dismissing a HRS § 709-906 charge over which the district
court had concurrent jurisdiction pursuant to HRS § 604-8(b). This court
accepted certiorari only to address the ICA’s reliance on the plain error
doctrine in making this ruling; we determined that the State had preserved
the error by timely appealing the dismissal. State v. Dela Cruz, SCWC-11-
0000367, 2014 WL 783148, at *2 (Haw. Feb. 27, 2014) (mem.). The ICA’s
substantive ruling regarding the district court’s error in dismissing the
abuse charge for lack of subject matter jurisdiction was affirmed. Id.

18    We cannot envision all possibilities, and we therefore do not intend to
foreclose all possibility of a family court dismissing a concurrent count.
We merely rule that it cannot do so for an alleged lack of subject matter
jurisdiction or for the reasons stated in its 11/22/19 FOFs/COLs.

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