Ruggles v. Yagong

• Decision Date: 25 June 2015
• Docket Number: No. SCWC–13–0000117.,SCWC–13–0000117.
• Citation: 135 Hawai'i 411,353 P.3d 953
• Parties: Michael Doyle RUGGLES, Rev. Nancy Waite Harris, Kenneth V. Miyamoto–Slaughter, Wendy Tatum, David Tatum, and Robert S. Murray, Petitioners/Plaintiffs–Appellants, and George Herman Klare, Barbara Jean Lang, Plaintiffs–Appellees, v. Dominic YAGONG, Donald Ikeda, J. Yoshimoto, Dennis Onishi, Fred Blas, Brittany Smart, Brenda Ford, Angel Pilago, and Pete Hoffman, current Hawai‘i County Council members; Jay Kimura, Hawai‘i County Prosecutor; Mitchell Roth and Charlene Iboshi, Deputy Prosecuting Attorneys; Billy Kenoi, Hawai‘i County Mayor, respondeat superior, Harry Kubojiri, Hawai‘i County Chief of Police, Kelly Greenwell, Guy Enriques, and Emily Nae‘Ole, previous Hawai‘i County Council members, Respondents/Defendants–Appellees.
• Court: Hawaii Supreme Court

135 Hawai'i 411

353 P.3d 953

Michael Doyle RUGGLES, Rev. Nancy Waite Harris, Kenneth V. Miyamoto–Slaughter, Wendy Tatum, David Tatum, and Robert S. Murray, Petitioners/Plaintiffs–Appellants,andGeorge Herman Klare, Barbara Jean Lang, Plaintiffs–Appellees,

v.Dominic YAGONG, Donald Ikeda, J. Yoshimoto, Dennis Onishi, Fred Blas, Brittany Smart, Brenda Ford, Angel Pilago, and Pete Hoffman, current Hawai‘i County Council members; Jay Kimura, Hawai‘i County Prosecutor; Mitchell Roth and Charlene Iboshi, Deputy Prosecuting Attorneys; Billy Kenoi, Hawai‘i County Mayor, respondeat superior, Harry Kubojiri, Hawai‘i County Chief of Police, Kelly Greenwell, Guy Enriques, and Emily Nae‘Ole, previous Hawai‘i County Council members, Respondents/Defendants–Appellees.

No. SCWC–13–0000117.

Supreme Court of Hawai‘i.

June 25, 2015.

Michael D. Ruggles, Rev. Nancy Waite Harris, Kenneth V. Miyamoto–Slaughter, Wendy Tatum, David Tatum, and Robert S. Murray, petitioners pro se.

Michael J. Udovic, Hilo, for respondents.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ.; with POLLACK, J., dissenting, with whom WILSON, J., joins.

Opinion of the Court by McKENNA, J.

I. Introduction

Petitioners, a group of pro se individuals from Hawai‘i County, present the following question: "Did the Intermediate Court of Appeals err in determining that the Lowest Law Enforcement Priority of Cannabis, a voter sponsored initiative, in its entirety is in conflict with State laws, and is thus preempted by them?" We answer this question in the negative. Our case law holds that a municipal ordinance may be preempted by state law "if (1) it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law." Richardson v. City & Cnty. of Honolulu, 76 Hawai‘i 46, 62, 868 P.2d 1193, 1209 (1994) (citations omitted).

We accepted certiorari to clarify that the ordinance in this case is preempted solely because it "conflicts with state law." It is not necessary to address whether the LLEP "covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state...." Id. The ICA's published opinion erroneously conflates the two Richardson prongs, but the error is harmless, as the ICA clearly held that the LLEP conflicts with state law, and the Richardson preemption test is stated in the disjunctive. Therefore, we affirm the ICA's judgment on appeal, which affirmed the Circuit Court of the Third Circuit's¹ ("circuit court") Final Judgment.

II. Background

A. Article 16 of Chapter 14 of the Hawai‘i County Code: Lowest Law Enforcement Priority of Cannabis Ordinance

At issue in this appeal is whether Article 16 of Chapter 14 of the Hawai‘i County Code, entitled "Lowest Law Enforcement Priority of Cannabis" ("LLEP"), is preempted in its entirety by state law. Passed by voter initiative in 2008, the LLEP provides the following, in full:

Article 16. Lowest Law Enforcement Priority of Cannabis Ordinance.

Section 14–96. Purpose.

The purpose of this article is to:

(1) Provide law enforcement more time and resources to focus on serious crimes;

(2) Allow our court systems to run more efficiently;

(3) Create space in our prisons to hold serious criminals;

(4) Save taxpayers money and provide more funding for necessities such as education and health care; and

(5) Reduce the fear of prosecution and the stigma of criminality from non-violent citizens who harmlessly cultivate and/or use cannabis for personal, medicinal, religious, and recreational purposes.

Section 14–97. Findings.

(a) The Institute of Medicine has found that cannabis (marijuana) has medicinal value and is not a gateway drug.

(b) According to the U.S. Centers for Disease Control, the use of cannabis (marijuana) directly results in zero deaths per year.

(c) According to the National Institute of Drug Abuse (NIDA), the marijuana eradication program has not stopped cannabis cultivation in the county, rather the program has only decreased the availability of the plant, which increases its "street" value, resulting in more crime.

(d) The National Institute of Drug Abuse (NIDA) also reported that a large increase in the use of methamphetamine, crack cocaine, and other hard drugs was related to the marijuana eradication program's implementation.

(e) According to public record, the ‘mandatory program review’ for the marijuana eradication program, required by section 3–16 of the County Charter to be performed at least once every four years, has never been performed in the thirty years that the program has existed.

(f) Law abiding adults are being arrested and imprisoned for nonviolent cannabis offenses, clogging our court dockets, overcrowding our prisons, tying up valuable law enforcement resources and costing taxpayers hundreds of thousands of dollars in Hawai‘i County alone each year.

(g) The citizens of the Cities of Hailey, Idaho; Denver, Colorado; Seattle, Washington; Columbia, Missouri; Eureka Springs, Arkansas and Santa Barbara, Oakland, Santa Monica and Santa Cruz, in California, and the citizens of Missoula County, Montana, all voted for cannabis (marijuana) to be placed as law enforcement's lowest priority within the past five years.

Section 14–98. Definitions.

"Adult" means any individual who is twenty one years of age or older.

"Adult personal use" means the use of cannabis on private property by adults. It does not include:

(1) Distribution or sale of cannabis;

(2) Distribution, sale, cultivation, or use of cannabis on public property;

(3) Driving under the influence; or

(4) The commercial trafficking of cannabis, or the possession of amounts of cannabis in excess of the amounts defined as being appropriate for adult personal use.

"Marijuana", (as defined in the Hawai‘i Revised Statutes of Chapter 712–1240) means cannabis.

"Cannabis" means all parts of the cannabis plant, whether growing or not; the seeds thereof; the resin extracted from any part of the cannabis plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds, or its resin.

"Lowest Law Enforcement Priority" means a priority such that all law enforcement activities related to all offenses other than the possession or cultivation of cannabis for adult personal use shall be a higher priority than all law enforcement activities related to the adult personal use of cannabis. The Lowest Law Enforcement Priority regarding possession or cultivation of cannabis shall apply to any single case involving twenty four or fewer cannabis plants at any stage of maturity or the equivalent in dried cannabis, where the cannabis was intended for adult personal use.

The "dried equivalent" of twenty four or fewer cannabis plants shall be presumed to be twenty four or fewer ounces of usable cannabis, excluding stems and other non active parts. A greater amount may also fall under the Lowest Law Enforcement Priority provisions described herein if such amount is shown by competent evidence to be no more than the dried equivalent of twenty four plants.

Section 14–99. Lowest law enforcement priority policy relating to the adult personal use of cannabis.

(a) The cultivation, possession and use for adult personal use of cannabis shall be the Lowest Law Enforcement Priority for law enforcement agencies in the county.

(b) The council, the police commissioner, the chief of police and all associated law enforcement staff, deputies, officers and any attorney prosecuting on behalf of the county shall make law enforcement activity relating to cannabis offenses, where the cannabis was intended for adult personal use, their Lowest Law Enforcement Priority. Law enforcement activities relating to cannabis offenses include but are not limited to the prosecution of cannabis offenses involving only the adult personal use of cannabis.

(c) Neither the chief of police, the police commissioner, nor any attorney prosecuting on behalf of the county, nor any associated law enforcement staff, deputies, nor officers shall seek, accept or renew any formal or informal deputization or commissioning by a federal law enforcement agency for the purpose of investigating, citing, or arresting adults, nor for searching or seizing property from adults for cannabis offenses subject to the Lowest Law Enforcement Priority of cannabis where such activities would be in violation of that policy, nor shall such authorities exercise such powers that may be ancillary to deputization or commissioning for another purpose.

(d) The council shall not authorize the acceptance or the issuing of any funding that is intended to be used to investigate, cite, arrest, prosecute, search or seize property from adults for cannabis offenses in a manner inconsistent with the county's Lowest Law Enforcement Priority policy.

Section 14–100. County prosecuting attorneys.

To the full extent allowed by the Constitution of the State of Hawai‘i, the people, through their county government, request that neither the county prosecuting attorney nor any attorney prosecuting on behalf of the county shall prosecute any violations of the sections of chapter 712–1240 of the Hawai‘i Revised Statutes regarding possession or cultivation of cannabis in a manner inconsistent with the Lowest Law Enforcement Priority, as described in section 14–98 and 14–99 of this article; in cases where the amount possessed or grown is less than twenty four plants or the dried equivalent, possession for adult personal use shall be presumed.

Section 14–101. Expenditure of funds for cannabis enforcement.

(a) Neither the council, nor the police commissioner, nor the chief of police, nor any attorneys prosecuting on behalf of the county, nor any associated law enforcement staff, deputies, or officers shall spend or authorize the expenditure of any public funds for the investigation, arrest, or prosecution of any person, nor for the

...