89 Hawai'i 27, State v. Guzman

• Decision Date: 08 October 1998
• Docket Number: No. 20477,20477
• Parties: 89 Hawai'i 27, 160 L.R.R.M. (BNA) 2357, 137 Lab.Cas. P 58,591 STATE of Hawai'i, Plaintiff-Appellee, v. John GUZMAN, Jr.,Brian K. Kawahara, Walter H. Kupau, Andrew Mancao, Samuel I. Nakamura, Michael GEORGE Spain, JR., Wallace MINORU Takushi, and Stephen D. Vasconcellos, Defendants-Appellants.
• Court: Hawaii Court of Appeals

Page 194

968 P.2d 194

89 Hawai'i 27, 160 L.R.R.M. (BNA) 2357,

137 Lab.Cas. P 58,591

STATE of Hawai'i, Plaintiff-Appellee, v. John GUZMAN, Jr.,Brian K. Kawahara, Walter H. Kupau, Andrew Mancao, Samuel I. Nakamura, Michael GEORGE Spain JR., Wallace MINORU Takushi, and Stephen D. Vasconcellos, Defendants-Appellants.

No. 20477.

Intermediate Court of Appeals of Hawai'i.

Oct. 8, 1998.

Certiorari Denied Nov. 19, 1998.

Donn Fudo and James Anderson, Deputy Prosecuting Attorneys, Alexa D.M. Fujise, Deputy Prosecuting Attorney and Ryan Cuskaden, Legal Intern, on the brief, City & County of Honolulu, for plaintiff-appellee.

Matthew S.K. Pyun, Jr. and John M. Van Dyke, Harrison K.Kawate with them on the briefs, for defendants-appellants.

WATANABE, ACOBA, and KIRIMITSU, JJ.

ACOBA, Judge.

We hold, in this interlocutory appeal from the denial of motions to dismiss, that Hawai'i Revised Statutes (HRS) § 852-1 (1993), which prohibits the obstruction of "ingress to or egress from any public or private place," is not constitutionally vague on its face. Further, we cannot conclude, on the record of the case thus far, that as a matter of law HRS § 852-1 was unconstitutionally applied to Defendants-Appellants John Guzman, Jr. (Guzman), Brian K. Kawahara, Walter H. Kupau, Andrew Mancao, Samuel I. Nakamura, Michael George Spain, Jr. (Spain), Wallace Minoru Takushi, and Stephen D. Vasconcellos (Vasconcellos) (collectively referred to herein as Defendants), when they were arrested while picketing on May 31, 1996 and subsequently charged with violating HRS § 852-1.

However, we further hold that on remand of this case for trial, Defendants may, if they so choose, present evidence to demonstrate that the application of HRS § 852-1 under the circumstances of this case constituted "entrapment by estoppel," violative of the due process clause of the Hawai'i Constitution, on the ground that Defendants reasonably relied on an agreement they had made with the Honolulu Police Department (the HPD or the police) regarding their picketing procedures.

We hold, thirdly, that HRS § 852-1 is not preempted by the National Labor Relations Act (the NLRA).

Accordingly, we affirm the January 10, 1997 and January 24, 1997 orders ¹ entered by the first circuit court (the court) denying Defendants' motions to dismiss the HRS § 852-1 charges against them and remand this case to the court for trial.

I.

A.

The record indicates that on April 22, 1996, security guards for St. Francis Hospital in Honolulu, Hawai'i began picketing at the entrance to the hospital after a discontinuation in labor negotiations between the security guards and the hospital. ² A picket line was established at the Liliha Street entrance to the hospital and picketing usually occurred daily between the hours of 6:30 a.m. and 3:00 p.m.

Before the first day of picketing, certain picketers discussed a picketing procedure with certain members of the HPD. Under this procedure, the picketers would make "three revolutions across the driveway to the hospital," then "break" the line to allow vehicles to enter and exit the driveway, and then repeat their revolutions. The picketers generally completed their revolutions in less than two minutes. It was agreed between the picketers and the HPD members that the picketers would immediately break the line "to allow ... emergency vehicle[s] to pass through without interference."

Of the strike post notations which are in evidence, one on April 25, 1996 indicates that "one doctor was upset over the delay to gain entry." The picketers thereafter agreed to immediately break the line for unmarked emergency vehicles upon such vehicles flashing their lights and sounding their horns. On May 1, 1996, it was noted that a "[c]onstruction project by [the] Board of Water [Supply] on Liliha St. just makai of the St. Francis Hospital driveway caused additional traffic congestion due to one lane in each direction being closed." Despite any delay or congestion occurring on these dates, no picketers were arrested for violating HRS § 852-1.

The first police officer to question this procedure, almost three weeks after picketing began, was Officer S. Ono (Officer Ono) who was assigned to the picket line on May 10, 1996. Officer Ono informed the picketers that the procedure was "unacceptable" to him and that he would conduct the picket line however he thought best. However, upon request by the picketers, Officer Ono called Sergeant Jerrold Perreira (Sergeant Perreira) to the picket line. Sergeant Perreira explained the "practice and history" of the three-revolution procedure to Officer Ono, who subsequently followed it.

Thus, the record reveals that the three-revolution procedure was followed from the commencement of the picketing on April 22, 1996 without incident for nearly six weeks until May 31, 1996, when Officer Russell Maeshiro (Officer Maeshiro) was assigned to the picket line. Officer Maeshiro had started work at 10:30 p.m. the night before and his shift ended at 7:15 a.m. on May 31. He arrived at the strike post sometime before 6:30 a.m.

Officer Maeshiro testified that upon receiving his assignment, Sergeant Perreira had instructed him to "[go] by the [HPD's] policy," but Officer Maeshiro denied that he had been informed by Sergeant Perreira about or had prior knowledge of the three-revolution procedure.

Before taking his post at the picket line, Officer Maeshiro spent a "couple of minutes" reviewing the HPD's Operations Manual: Labor-Management Disputes. ³ When Defendants arrived at about 6:28 a.m., Officer Maeshiro asked for the strike captain and Guzman was identified. Officer Maeshiro testified that he explained his procedure to Guzman as follows:

I explained to [Guzman] that I'll be in charge of the strike post today and basically everybody's gonna [sic] be walking the strike line and when I yell break, okay, everybody that's [sic] in the driveway, within the prolongation of the driveway itself, can continue on to either side and the ones that [sic] are--that [sic] didn't cross the prolongation of the driveway would stay on each side and the cars would go in and out. When I say proceed again they can continue walking the strike line.

I said one warning and one warning only, after that I'll take action. To be fair, I explained, if I call break and they don't obey orders, our procedures is [sic] we go back to the strike captain and he's supposed to take care of the strikers.

Officer Maeshiro recounted that after he explained the procedure he intended to use, Guzman replied, "[N]ah, nah, [the picketers] know what they doing [sic]." Vasconcellos, who apparently heard Officer Maeshiro's explanation to Guzman, also reportedly remarked, "[Y]eah, yeah, yeah, every time we get one new officer he makes threats." At some point, according to affidavits submitted by Guzman and Spain, the picketers asked Officer Maeshiro "to speak with a sergeant about the previous picket line procedures [but] Officer Maeshiro refused." ⁴

Officer Maeshiro reported he called for a break during the first set of three revolutions "when cars started to back up ... half dozen or so on each direction[.]" On cross-examination, Officer Maeshiro indicated there may have been four to six cars. When the picketers did not respond to his call, Officer Maeshiro repeated his call for a break "to make sure they heard [him,]" and again the picketers did not break. In his written report, he recounted that at that point, "various picketers stated, 'We know our rights as picketers[;] ... we have two minutes ... [.]' 'We have an agreement with your department.' " Officer Maeshiro testified on cross-examination that these statements "didn't mean anything to [him]." ⁵

According to Officer Maeshiro, he "explained to [Guzman] that [the picketers were] not following directions and stuff and [Guzman] should go talk to them and that this was their first and last warning. After this [Officer Maeshiro said he would] take strict enforcement action." Guzman responded to Officer Maeshiro that "they know what they're doing." The cars that had been "back[ed] up" on Liliha Street apparently passed through the hospital driveway before the second set of revolutions began.

At approximately 6:36 a.m., after the second set of revolutions began, Officer Maeshiro noticed several cars lining up on Liliha Street again, which concerned him because "if the cars back up too far over there people coming around the curve might end up rear ending somebody." He acknowledged that the cars did not "cause a problem ... at that time," but believed they were "creating a hazard[.]" Officer Maeshiro thus called for another break, but "[n]obody responded" except for saying, "We know what we're doing[;] we got [sic] couple minutes."

Officer Maeshiro testified that he "called dispatch on my radio for a report number[,] ... figur[ing] if [the picketers] can hear me loud enough call for a report number maybe they'll comply." After this call, he called for a "blue and white." At 6:45 a.m., approximately fifteen minutes after taking his post, he "approached the picketers to explain to them that they were gonna [sic] be placed under arrest for refusal to provide ingress and he [sic] egress" and then, with assistance from Officer A. Togami, placed Defendants under arrest. At the time of the arrest, Officer Maeshiro knew of no complaints by the hospital about the picketing, or of any emergency vehicles being impeded, and conceded that it was a peaceful "picket."

After Defendants were "bailed out" that day, they returned to the picket line and increased the number of revolutions from three to four. The strike post notations for the period of time after 7:00 a.m. on May 31, 1996 indicated the following: "No incidents on the Day Watch shift. The picketers were given a reasonable time to walk the picket line. Emergency vehicles were not hindered. Traffic was monitored by the officers." The picketers used the four-revolution...