Kahaikupuna v. State, 26850.

• Decision Date: 05 January 2006
• Docket Number: No. 26850.,26850.
• Parties: Daniel Lealoha KAHAIKUPUNA and Frederick Ponce, Plaintiffs-Appellants v. STATE of Hawai`i, County of Maui, Defendants-Appellees and John Does 1-10 and Doe Entities 1-10, Defendants.
• Court: Hawaii Supreme Court

124 P.3d 975

Daniel Lealoha KAHAIKUPUNA and Frederick Ponce, Plaintiffs-Appellants v. STATE of Hawai`i, County of Maui, Defendants-Appellees and John Does 1-10 and Doe Entities 1-10, Defendants.

No. 26850.

Supreme Court of Hawai`i.

December 19, 2005.

As Corrected January 5, 2006.

James Richard McCarty, on the briefs, for plaintiffs-appellants.

Dorothy Sellers and Kimberly Tsumoto, Deputy Attorneys General, State of Hawaii, on the briefs, for defendant-appellee State of Hawaii.

Jane E. Lovell, Deputy Corporation Counsel, County of Maui, on the briefs, for defendant-appellee County of Maui.

MOON, C.J., NAKAYAMA, ACOBA, and DUFFY, JJ.; with LEVINSON, J., Concurring Separately and Dissenting.

Opinion of the Court by ACOBA, J.

Plaintiffs-Appellants Daniel Lealoha Kahaikupuna and Frederick Ponce [collectively, Plaintiffs] appeal from the September 22, 2004 judgment of the circuit court of the second circuit¹ (the court) in favor of Defendants-Appellees the State of Hawai`i (the State), and the County of Maui (the County) [collectively, Defendants]. Plaintiffs also challenge the court's August 31, 2004 findings of fact (findings), conclusions of law (conclusions) and order granting Defendants' motion to dismiss the complaint. Because we hold that Plaintiffs' challenges to Hawai`i Revised Statutes (HRS) § 711-1109(1) (Supp.2004) and Chapter 9.08.010 of the Maui County Code (MCC)² are not proper subjects for a declaratory judgment, we vacate the September 22, 2004 judgment and the aforesaid findings, conclusions, and order and remand the case to the court to enter summary judgment in favor of the County on its motion and in favor of the State on its joinder to the County's motion and to enter judgment thereon on the grounds set forth herein.

I.

On May 28, 2004, Plaintiffs filed a complaint under the provisions of HRS § 632-1 (1993),³ asking the court to enter a declaratory judgment to the effect that cockfighting is a native Hawaiian customary right protected pursuant to article XII, section 7 of the State Constitution⁴ and HRS § 7-1 (1993).⁵ Plaintiffs named the State and the County as parties in the suit. Cockfighting is prohibited under State⁶ and County⁷ laws. Plaintiffs have not been charged with a criminal offense.

In the complaint, Plaintiffs represented that they are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778. They further asserted that cockfighting is a "traditional native Hawaiian cultural practice." Plaintiffs requested "entry of a[j]udgment declaring, determining, and resolving Plaintiffs' legal status, rights and privileges" and "entry of judgment declaring that Plaintiffs have the right to practice raising and fighting roosters as part of their culture."

On July 16, 2004, the County filed a motion to dismiss Plaintiffs' complaint for lack of jurisdiction. The County argued that Plaintiffs failed to "allege an `actual controversy'" because Plaintiffs failed to plead that they have either been charged with or convicted of violations pursuant to State or County laws, and, therefore, the court was "depriv[ed]" of subject matter jurisdiction. The County also argued that "[e]ven if the [c]ourt had jurisdiction, Plaintiffs' [c]omplaint fails to state a claim upon which relief may be granted."

On July 22, 2004, the State filed a substantive joinder in the County's Hawai`i Rules of Civil Procedure (HRCP) Rule 12(b)(6) motion to dismiss (joinder). The State asked the court to treat the County's motion to dismiss as one for summary judgment pursuant to HRCP Rules 12(c) and 56 (2004)⁸ because the County's motion to dismiss included matters outside of the pleadings.

On August 19, 2004, Plaintiffs filed a memorandum in opposition to both the County's motion to dismiss and the State's joinder, arguing that (1) by virtue of HRS § 632-1, infra, the court has jurisdiction to grant declaratory relief for (a) "[c]ontroversies involving the interpretation of ... statutes, municipal ordinances, and other governmental regulations ...," (b) when "antagonistic claims are present between the parties which indicate imminent and inevitable litigation," or (c) "where the court is satisfied that a party asserts a legal[] relation, status, right, or privilege ... and that there is a challenge ... by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding[,]" (2) Plaintiffs' action is ripe, (3) Plaintiffs have standing, and (4) the complaint does state a claim. In a declaration, Plaintiff Kahaikupuna stated that although he has never been charged with or convicted of a crime, he faces the "real, immediate and adverse threat of criminal prosecution ... for practicing the traditional Hawaiian custom of cockfighting[,]" and that the threat is a "serious threat which impacts my life as well as the lives of the members of my family."

On August 31, 2004, the court issued its findings, conclusions, and order granting Defendants' motion to dismiss. The court determined that as a matter of law (1) it had jurisdiction over the subject matter of the action and Plaintiffs had standing, (2) the claims were ripe in that competing interests were likely to lead to litigation if Plaintiffs should attempt to exercise their claimed rights, (3) the motion to dismiss should be decided under the provisions of Rule 56 of the HRCP, rather than under Rule 12 because there were matters presented to the court that were outside the pleadings, and (4) summary judgment should be granted against Plaintiffs on the merits.⁹

Plaintiffs filed a notice of appeal on September 27, 2004.

II.

On appeal, Plaintiffs contend that the court erred in ruling that (1) raising and fighting roosters was not a customary traditional practice of Native Hawaiians, despite substantial and uncontested evidence in the record to the contrary, or at least there was a genuine issue of fact as to the existence of such a practice, (2) pursuant to chapter 24 of the Kingdom of Hawai`i Penal Code enacted in 1884, raising and fighting roosters was not a right customarily and traditionally exercised for subsistence or cultural purposes by native Hawaiians, and (3) such a right is not protected by article XII, section 7 of the Hawai`i Constitution. Plaintiffs state that they make "no contention that any of the existing state laws regarding cockfighting were unconstitutional" and they "do not ask for declaration that any state or county laws were unconstitutional."

In response, the State argues that (1) summary judgment was proper because cockfighting is not a constitutionally or statutorily protected Native Hawaiian customary right, (2) summary judgment was correct because Plaintiffs have not set forth specific facts to show that there are any genuine issues of material fact, (3) the court properly ruled that the State exercised its constitutional right to regulate Native Hawaiian customary practices, and (4) declaratory judgment is improper because the issue of whether cockfighting is a Native Hawaiian customary right is not ripe for review.

The County agrees with the State's first and second arguments and also contends that (1) chapter 24 of the Hawaiian Kingdom's penal code outlawed more than merely keeping or managing a place used for cockfighting, (2) neither the County nor the State prohibits the raising of roosters, (3) there are no disputed material facts, and (4) Plaintiffs have failed to overcome the presumption that the County's anti-cockfighting ordinances are valid.

In requesting a declaratory judgment as to whether cockfighting is a protected native Hawaiian right, Plaintiffs urge this court to "determine their rights prior to having to suffer actual criminal prosecution, which is threatened and imminent." Because we believe Plaintiffs' request is not appropriate for a declaratory judgment action, we affirm summary judgment on behalf of the State and County, but on different grounds. See Waianae Model Neighborhood Area Ass'n v. City & County of Honolulu, 55 Haw. 40, 43, 514 P.2d 861, 864 (1973); McCarthy v. Yempuku, 5 Haw.App. 45, 52, 678 P.2d 11, 16 (1984) (holding that an appellate court may affirm a grant of summary judgment on any ground appearing in the record, even if the circuit court did not rely on it).

III.

It is evident, as mentioned above in Plaintiffs' complaint, that they sought a declaratory judgment because of a perceived threat of criminal prosecution. The complaint was filed under the provisions of the Declaratory Judgments Act, HRS § 632-1, which states:

In cases of actual controversy, courts of record, within the scope of their respective jurisdictions, shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceeding shall be open to objection on the ground that a judgment or order merely declaratory of right is prayed for; provided that declaratory relief may not be obtained in any district court, or in any controversy with respect to taxes, or in any case where a divorce or annulment of marriage is sought. Controversies involving the interpretation of deeds, wills, other instruments of writing, statutes, municipal ordinances, and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.

Relief by declaratory judgment may be granted in civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which the party has a concrete interest and that there is a challenge or denial...