City &Cnty. of Honolulu v. Honolulu Police Comm'n, CAAP-20-0000776

• Court: Court of Appeals of Hawai'i
• Writing for the Court: OPINION OF THE COURT BY HIRAOKA, J.
• Citation: 151 Hawai‘i 56,508 P.3d 851
• Parties: CITY AND COUNTY OF HONOLULU, BY the DEPARTMENT OF THE CORPORATION COUNSEL, Appellant-Appellant, v. HONOLULU POLICE COMMISSION, Appellee-Appellee, and Louis M. Kealoha, Appellee
• Docket Number: CAAP-20-0000776
• Decision Date: 16 March 2022

151 Hawai‘i 56
508 P.3d 851

CITY AND COUNTY OF HONOLULU, BY the DEPARTMENT OF THE CORPORATION COUNSEL, Appellant-Appellant,
v.
HONOLULU POLICE COMMISSION, Appellee-Appellee,
and
Louis M. Kealoha, Appellee

NO. CAAP-20-0000776

Intermediate Court of Appeals of Hawai‘i.

MARCH 16, 2022
Reconsideration Denied April 5, 2022

On the briefs:

Linda Lee K. Farm, Donna H. Kalama, Honolulu, for Appellant-Appellant City and County of Honolulu.

Denise W.M. Wong, Duane W. H. Pang, Deputies Corporation Counsel, for Appellee-Appellee Honolulu Police Commission.

GINOZA, CHIEF JUDGE, HIRAOKA AND MCCULLEN, JJ.

OPINION OF THE COURT BY HIRAOKA, J.

508 P.3d 855

The Honolulu Police Commission determined that the City and County of Honolulu must pay for an attorney to defend former Honolulu Police Department (HPD) chief Louis M. Kealoha in a federal criminal prosecution. A federal jury later found Kealoha guilty. The City appealed the Police Commission's determination that Kealoha was entitled to a defense. The Circuit Court of the First Circuit affirmed.¹ The City filed this secondary appeal.

For the reasons explained below, we hold that the Police Commission properly applied its administrative rules — which are consistent with the language of, and the legislative intent behind, Hawaii Revised Statutes (HRS) §§ 52D-8 (2012) and 52D-9 (2012) — to the relevant facts in the record. Kealoha's subsequent conviction did not retroactively vitiate the Police Commission's determination. We affirm the "Findings of Fact, Conclusions of Law, and Decision and Order" issued by the Police Commission on May 10, 2019; and the "Final Judgment" entered by the circuit court on December 2, 2020.

I. BACKGROUND

Kealoha was the chief of HPD. On October 19, 2017, a federal grand jury returned a 20-count Indictment against Kealoha, Kealoha's wife Katherine Kealoha, and four HPD officers: Derek Wayne Hahn, Minh-Hung Nguyen, Gordon Shiraishi, and Daniel Sellers. Indictment, United States v. Kealoha , Case 1:17-cr-00582-JMS-RLP (D. Haw. Oct. 19, 2017) (the Federal Prosecution). The Indictment alleged, among other things, that the defendants conspired to frame a person identified as "G.K.P." for stealing the Kealohas' mailbox.

Kealoha — through his attorney, Kevin P.H. Sumida — tendered the defense of the Federal Prosecution to the City by letter to the Police Commission dated March 21, 2018. Enclosed with the letter was a copy of the Indictment.

The Police Commission asked Kealoha to complete an HPD form HPD-195 (Request for Legal Counsel) and submit it to HPD's Professional Standards Office. Kealoha completed the HPD-195, attaching another copy of the Indictment. The Police Commission acknowledged receipt by letter stating: "The Commission will determine whether the acts for which you are being criminally prosecuted were done in the performance of your duties and will consult with the Department of the Corporation Counsel in making its decision."

The Police Commission asked the City's Department of the Corporation Counsel to review Kealoha's HPD-195 and "provide ... a recommendation[.]" Corporation Counsel recommended that Kealoha's request "be scheduled for [a] contested case hearing." (Underscoring omitted.) Corporation Counsel indicated that a written recommendation for disposition of the request "will be provided to the Commission in advance of the scheduled hearing date."

The Police Commission informed Kealoha that he could request a contested case hearing. The Police Commission's letter to Sumida stated: "The basic issue to be determined would be whether the act for which [Kealoha] is being prosecuted or sued was done in the performance of an officer's duty as a police officer." Kealoha was informed, "If you do not request [a] hearing ... the Commission will proceed to grant or deny your request for legal counsel based on the information available (including reports referred to in your request for representation and the recommendation of the Corporation Counsel), and will notify you of the final determination."

Sumida responded, "if the Police Commission has decided to deny the request for a defense, then we would request a contested case hearing." Sumida also informed the Police Commission that the Federal Prosecution "now involves more than one criminal case number[.]" Sumida sent the Police Commission copies of the First Superseding Indictment and the Second Superseding Indictment, and the federal district court's Order

508 P.3d 856

Clarifying Case Number Assignments and Status of Indictments.²

The Police Commission informed Sumida: "Because the First and Second Superseding Indictments differ from the initial Indictment submitted by Mr. Kealoha ... it is necessary for him to submit a [sic] HPD-195 form for each superseding indictment[.]"

As directed, Kealoha submitted copies of the First Superseding Indictment and the Second Superseding Indictment, under separate HPD-195 forms, to HPD. HPD sent the documents to the Police Commission, which sent the documents to Corporation Counsel. Corporation Counsel again advised the Police Commission to conduct a contested case hearing on Kealoha's requests, and that a written recommendation would be provided before the hearing date.

By memorandum dated January 16, 2019, Corporation Counsel advised the Police Commission:

Based on available information, Chief Kealoha's actions and activities alleged in the Indictments were not done in the performance of his duties as a police officer nor within the course and scope of his employment. Accordingly, it is recommended that the [sic] Chief Kealoha's request for legal representation provided by the City as described in the [requests for legal services] be denied.

A contested case hearing was held on March 6, 2019.³ Sumida represented Kealoha, who did not attend or testify at the hearing.

On May 10, 2019, the Police Commission issued two written decisions. Kealoha's request for counsel for the First Superseding Indictment was granted.⁴ His request for counsel for the Second Superseding Indictment was denied.⁵

On June 10, 2019, the City appealed to the circuit court from the Police Commission's decision granting Kealoha's request for counsel for the First Superseding Indictment.⁶ The City's appeal was heard on October 16, 2020. On November 19, 2020, the circuit court entered an order affirming the Police Commission's decision. The Final Judgment was entered on December 2, 2020.

This appeal followed.⁷

II. POINTS OF ERROR

The City's opening brief raises two points of error:

1. "The circuit court erred in affirming the [Police] Commission's Decision to grant

508 P.3d 857

L. Kealoha's request for legal representation for the criminal charges filed against him by the United States in Cr. No. 17-00582"; and

2. "The circuit court erred when it applied the insurance policy/complaint allegation rule analysis as the analytical framework for deciding representation requests under HRS §§[ ]52D-8 and 52D-9."

III. STANDARDS OF REVIEW

A. Administrative Agency Appeal

1 Our review of a circuit court decision on an appeal from an administrative agency determination is a secondary appeal; we must determine whether the circuit court was right or wrong in its decision, applying the standards set forth in HRS § 91–14(g) (Supp. 2019) to the agency's decision. Flores v. Bd. of Land & Nat. Res. , 143 Hawai‘i 114, 120, 424 P.3d 469, 475 (2018).

HRS § 91–14 (Supp. 2019) is entitled "Judicial review of contested cases." Subsection (g) provides:

Upon review of the record, the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in...