Freitas v. ADMINISTRATIVE DIRECTOR OF COURTS

• Decision Date: 25 July 2005
• Docket Number: No. 25323,25323
• Citation: Freitas v. ADMINISTRATIVE DIRECTOR OF COURTS, 94 P.3d 685, 105 Haw. 130 (Haw. 2005)
• Parties: DARCY C.K. FREITAS, Petitioner-Appellant v. ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI`I, Respondent-Appellee
• Court: Hawaii Supreme Court

94 P.3d 685

105 Haw. 130

DARCY C.K. FREITAS, Petitioner-Appellant v.ADMINISTRATIVE DIRECTOR OF THE COURTS, STATE OF HAWAI`I, Respondent-Appellee

No. 25323

Supreme Court of Hawaii.

July 25, 2005.

On the briefs:

Earle A. Partington for petitioner-appellant.

Girard D. Lau, Deputy Attorney General, State of Hawai`i, for respondent-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, AND DUFFY, JJ.

OPINION OF THE COURT BY LEVINSON, J. AS TO PARTS I-III (IDENTIFICATION SIGN-IN PROCEDURE); OPINION OF THE COURT BY ACOBA, J. AS TO PARTS IV-XIV (MERITS); AND ACOBA, J., DISSENTING AS TO PART III PARTIAL OPINION OF THE COURT BY LEVINSON, J.

The petitioner-appellantDarcy C.K. Freitas appeals from the decision of the district court of the first circuit, the Honorable Fa'auuga To'oto'o presiding, affirming the administrative revocation of Freitas's driver's license by a hearing officer of the Administrative Driver's License Revocation Office(ADLRO).In his supplemental brief, Freitas argues (1) that he was denied his state and federal constitutional due process rights to an open ADLRO hearing on remand, (2) that the hearing officer "ignored all evidence contrary to her preconceived determination to uphold the ADLRO sign[-]in procedure[,]" and (3) that "the hearing officer's findings of fact are clearly erroneous and her conclusions of law are contrary to established law[.]"¹

In this portion of our opinion, we address Freitas's contentions that the ADLRO erred in ruling that the sign-in and identification procedure employed at ADLRO hearings did not deprive Freitas of his right to a public hearing.We hold that the hearing officer's decision was correct, inasmuch as the procedure satisfies the three-part test that this court articulated in Freitas v. Admin. Dir. of the Courts, State of Hawai`i, 104 Hawai`i 483, 489, 92 P.3d 993, 999(2004)[hereinafter, "Freitas I"].

I.BACKGROUND

On July 14, 2004, the ADLRO conducted a hearing on the question whether the ADLRO's sign-in identification procedure impermissibly limited Freitas's right to a public hearing.At the hearing, the deputy attorney general, on behalf of the respondent-appellee Administrative Director of the Courts(Director), called two witnesses: Lloyd Shimabuku, security consultant to several Waikk hotels and deputy chief in the investigation division of the state department of the attorney general; and Ronald Sakata, chief adjudicator for the ADLRO.The Director also submitted into evidence two articles, one entitled "A Situationist Perspective on the Psychology of Evil: Understanding How Good People Are Transformed Into Perpetrators," by Phillip G. Zimbardo, Ph.D., in The Social Psychology of Good and Evil: Understanding Our Capacity for Kindness and Cruelty (Arthur Millered., 2004), and the second entitled "Identity and Anonymity: Some Conceptual Distinctions and Issues for Research," by Gary T. Marx, in Documenting Individual Identity (J. Caplan and J. Torpey eds., 2001).Freitas's counsel called four witnesses to testify: Reneau Charlene Ufford Kennedy, Ph.D., psychologist; Patrick McPherson, attorney; Lois Perrin, Director of the American Civil Liberties Union, Hawai`i; and Michael Nakamura, retired chief of the Honolulu Police Department.

Following the hearing, on July 16, 2004, the ADLRO hearing officer entered twenty-five written supplemental FOFs and four written supplemental COLs, which stated in relevant part:

SUPPLEMENTAL FINDINGS OF FACT

. . . .

3.The ADLRO instituted this ID procedure as a security measure to prevent unknown members of the general public from entering the inner-office area.

. . . .

5.The ID procedure provides a reasonable means of identifying and apprehending those persons who might engage in unlawful or inappropriate behavior at an administrative hearing or within the inner-office area.

6.The ID procedure provides a deterrent for those persons seeking entry past the front desk/reception counter, including those persons who wish to attend hearings, to engage in unlawful, disruptive, or otherwise inappropriate behavior while within the hearing and inner-office area.

7.This deterrent effect arises out of the fact that persons who know that their identity has been recorded will generally be less likely to engage in unlawful or inappropriate behavior for the simple reason that they know they can be held accountable.

8.A person who remains anonymous, on the other hand, is more likely to engage in inappropriate behavior if such person knows that he or she might be able to "get away with it" and not be held accountable.This deterrent effect makes the ID procedure an effective security measure.

9.Although the ID procedure is not a perfect security measure, it is a fundamental first-step in the ADLRO's security measures.

10.Mr. Sakata, as Chief Adjudicator of the ADLRO, instituted this ID procedure based upon his experience and common sense understanding of human behavior. . . .

11.This finding is also supported by the testimony of Mr. Lloyd Shimabuku, a former police officer[] and current Deputy Chief, special agent, at the Hawaii Attorney General's office, who also serves as the liaison for Homeland Security. . . .Mr. Shimabuku, who testified as an expert on security measures (without objection), and who has had direct experience with sign-in and identification-showing requirements, testified that a sign-in and identification requirement does have a deterrent effect upon a person who might otherwise be inclined to engage in unlawful or improper behavior, and that such a requirement serves as a fundamental or basic security measure.

12.Articles by Stanford University psychology professor Phillip G. Zimbardo, and M.I.T. emeritus sociology professor Gary T. Marx, to which no objection was made, provide further support for this finding, because these articles support the principle that anonymity makes people more likely to engage in aggressive, evil, destructive, or unlawful behavior. . . .

13.This Hearing Officer finds that these two articles support the view that the ID procedure, by directly stripping a person of his or her anonymity, lessens the likelihood that the identified person will engage in unlawful, harmful, or otherwise inappropriate behavior at the administrative hearing and within the inner-office area. . . .

14.Mr. Partington also elicited testimony from former police chief Michael Nakamura that the ID procedure would have little benefit to security.This Hearing Officer finds that this testimony was not particularly persuasive in light of the testimony of not only ADLRO Chief Adjudicator Ronald Sakata, but the testimony of security expert Lloyd Shimabuku, and since Mr. Nakamura conceded that the ID procedure could have some deterrent effect. . . .

15.With respect to attorney R. Patrick McPherson's testimony, as elicited by Mr. Partington, in which McPherson acknowledges that no state court, trial or appellate level, requires one to show identification and sign[]in in order to attend a court proceeding, this Hearing Officer finds this testimony unrelated to the ADLRO's unique circumstances in which, unlike the court buildings, the area to which counsel, respondent, and/or other members of the public are requesting access, includes undifferentiated access to the hearing room as well as all other areas of the ADLRO office, including private offices of ADLRO employees. . . .

16. . . .[T]he ADLRO does not have separate public and non-public access area[s].This distinguishing factor between courts and the ADLRO is critical and material in determining whether the ADLRO's ID procedure is warranted.

17.This Hearing Officer finds that other security measures, including a metal detector, x-ray machine and conveyor belt, a hand metal-detecting wand, and someone to operate these devices, or posting sheriffs or security guards (armed or unarmed) in or near the hearing room — would be expensive and beyond the budget capabilities of the ADLRO.The uncontradicted testimony of Chief Adjudicator Sakata setting forth the approximate costs of some of these measures, and how the ADLRO's budget would not allow such measures to be taken, supports this finding.On the other hand, the ID procedure costs virtually nothing[.]. . .

18.In addition, metal detectors, x-ray machines and hand metal-detecting wands would do nothing to stop a person intent on accosting ADLRO staff or hearing attendees by hand, arm, leg or foot, nor would such devices prevent someone from causing a vocal or verbal disturbance to the administrative proceeding.The ID procedure, on the other hand, could potentially deter such inappropriate behavior. . . .

19.Furthermore, metal detection devices may be very intrusive into a person's privacy, by requiring people to take their things out of their pockets, have their bags x-rayed, or their personal bodies searched by hand wand.

20.In addition, this Hearing Officer finds that even if such additional security measures were in place — e.g., a metal detector, x-ray conveyor belt, and hand wand, or a security guard — the ID procedure would provide an additional security benefit in the form of deterrence[.]. . . There is no less intrusive way to achieve this particular form of deterrence — based upon depriving a person of her anonymity — other than to have the ADLRO's ID procedure in effect.Although security cameras, by recording the visual image of a person, do remove some level of anonymity, they still leave a person the chance of remaining unidentified.Indeed, security cameras, by capturing a continuing and visual image of hearing attendees, may be equally if not more intrusive upon a person's privacy than the ID procedure.

22.This Hearing Officer finds that there is no less intrusive way to provide the unique deterrent effect created by the ADLRO ID procedure other than to maintain the ID procedure.No other security measure could fully substitute for the special and unique deterrent effect brought

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