Tremaine v. Hawaiian Homes Comm'n
| Decision Date | 29 May 2015 |
| Docket Number | No. CAAP–12–0000572.,CAAP–12–0000572. |
| Citation | 135 Hawai'i 533,354 P.3d 186 (Table) |
| Parties | Tremaine M.K.K. LUI–DYBALL, Plaintiff–Appellant, v. HAWAIIAN HOMES COMMISSION, Defendant–Appellee. |
| Court | Hawaii Court of Appeals |
Carl Foytik, on the briefs, for Plaintiff–Appellant.
Diane K. Taira, S. Kalani Bush, Matthew S. Dvonch, Deputy Attorneys General, on the briefs, for Defendant–Appellee.
MEMORANDUM OPINION
Plaintiff–Appellant Tremaine M.K.K. Lui–Dyball (Lui–Dyball) appeals from the Circuit Court of the First Circuit's (Circuit Court's) May 8, 2012 Final Judgment (Judgment) and challenges the Circuit Court's April 17, 2012 Order Affirming the Hawaiian Homes Commission's (the Commission's) Rulings on Objections and Order Denying Reconsideration and Affirming February 14, 2011 Findings of Fact, Conclusions of Law and Decision and Order Filed April 25, 2011 (Order).1 This secondary appeal arises from the Commission's decision to cancel Lui–Dyball's lease to a residential homestead lot based on a purported lease violation. For the reasons set forth herein, we reverse the cancellation of Lui–Dyball's lease.
On June 2, 1973, Lui–Dyball succeeded to an interest in Department of Hawaiian Homelands (DHHL) Residential Lot Lease No. 3913 (the Lease) for a homestead property at 41–1010 Kalanianaole Highway, Waimanalo, Hawai‘i 96795 (the Property). The fourth paragraph (Paragraph 4) of the “terms, covenants and conditions” section of the Lease document states, in relevant part:
The Homesteader will, at his own expense, at all times, ... keep the demised premises and all improvements thereon in a strictly clean, sanitary and orderly condition; and will observe, perform and comply with all laws, ordinances, rules and regulations of the health or other governmental authorities, including the rules and regulations of the Commission, applicable to the use and occupation of said demised premises as may from time to time be issued, enacted or promulgated; and will allow the Commission and its agents at all reasonable times free access to the demised premises for the purpose of examining the same and determining whether the covenants herein and elsewhere in this lease contained are being fully observed and performed.
The sixth paragraph of the “terms, covenants and conditions” section of the Lease document states, in relevant part:
This lease is upon the continuing condition that if the Homesteader shall ... fail in any other respect faithfully to observe or perform any condition or covenant in this lease contained and on his part to be observed or performed, or fail to observe or perform the conditions and obligations imposed upon said Homesteader by the terms of the Act to which this lease has been made expressly subject, the Commission may declare the interest of the Homesteader in the lands demised hereunder and all improvements thereon to be forfeited and this lease in respect thereto cancelled, and shall thereupon order said lands to be vacated within a reasonable time.
On July 14, 2006, officers from the Honolulu Police Department (HPD) conducted a “raid” at the Property and arrested Lui–Dyball's son Jerald Lee (Jerald) for “stolen property and drug paraphernalia.” Lui–Dyball was out of town at the time.
On September 27, 2007, Officer John Peiper (Peiper) of DHHL's Enforcement Unit visited the Property in response to two anonymous complaints. While on the Property, Peiper informed Lui–Dyball that there had been complaints of drinking and drug use on the Property; Lui–Dyball denied that any drug use was occurring. Peiper issued to Lui–Dyball a written Notice of Lease Violation, stating:
On December 17, 2008, HPD officers executed a narcotics search warrant for the Property, a trailer on the Property, and the person of Jerald's then—girlfriend Bobbie Jo Friel (Friel). HPD officers arrested Friel and five other individuals on the Property for “Promoting a Dangerous Drug in the Third Degree, Drug Paraphernalia .” The items confiscated during the search included plastic bags, a cut straw, glass pipes, and two gram scales containing residue resembling crystal methamphetamine. Lui–Dyball was not present at the Property during the incident.
At the Commission's June 23, 2009 regular meeting, the Commission received a request for a contested case hearing regarding Lui–Dyball's alleged lease violation.
On August 6, 2009, Lui–Dyball sent a letter to Micah Kane, Chairman of DHHL, which stated, in relevant part:
A September 4, 2009 letter from the Commission responded to Lui–Dyball's August 6, 2009 letter, stating that a DHHL Enforcement Officer was “currently reviewing police reports from the latest raid at [Lui–Dyball's] homestead address in December 2008, and upon completion [would] be notifying [her] in writing of further action, which may include a contested case hearing for lease violations.”
An August 2, 2010 letter from the Commission informed Lui–Dyball that a contested case hearing before a Commission Hearings Officer had been scheduled for August 25, 2010. Attached to the letter were a “Notice of Hearing,” a “Statement of Questions Presented,” and a “Preliminary Statement of Alleged Facts.” The questions presented in the Statement of Questions Presented were:
The Preliminary Statement of Alleged Facts stated the following:
(Italics omitted.)
On August 25, 2010, Lui–Dyball attended a contested case hearing before Hearings Officer Richard L. Hoke (Hoke). Lui–Dyball orally waived her right to an attorney at this hearing. During the hearing, Lui–Dyball testified to the following: (1) Friel did not “live” on the Property in December 2008 and “ha[d] her own address in Kaneohe”; (2) Friel had visited Jerald “[m]any times” at the Property; (3) Lui–Dyball was aware that Friel had a drug problem in December 2008; (4) Lui–Dyball did not know two of the other five people who were arrested during the December 17, 2008 raid, and the three people Lui–Dyball did recognize did not live on the Property at the time; (5) Lui–Dyball was aware that Jerald had been arrested on the Property on July 14, 2006 for possession of stolen property and drug paraphernalia; and (6) Peiper informed Lui–Dyball during his visit on September 27, 2007 that there had been complaints of drug use on the Property, but Lui–Dyball had told Peiper that there was no drug use occurring.
On October 22, 2010, Hoke issued the Hearings Officer's Findings of Fact, Conclusions of Law and Recommended Order. Conclusion of Law (COL) 6 stated:
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