74 Haw. 645 | Haw. | 1993
Concurrence Opinion
CONCURRING OPINION BY
There are three opinions in this case: (1) LevinsonMoon; (2) Burns; and (3) Heen-Hayashi. Appellee Lewin disagrees with the Levinson — Moon and Burns opinions and seeks reconsideration of both. With respect to the Levinson-Moon opinion, I concur with the decision by
Alternatively, appellee Lewin seeks clarification of this court’s mandate. The only agreement by a majority of this court is that this case involves genuine issues of material fact. In my view, that is this court’s mandate. Thus far, there is no majority agreement as to what these issues are or which side has the burden to prove them. Presented with this chance to write more than I have already written in the Bums opinion about these issues and burdens, I choose to wait for the next appeal. At that time, hopefully, there will be: a complete record of a trial in which the parties have presented their evidence and arguments and the trial court has made its decisions of fact and law; and opening, answering and reply briefs fully discussing the issues and the applicable law.
Lead Opinion
Defendant-Appellee’s motion for reconsideration, or, in the alternative, for clarification, and suggestion of the appropriateness of rebriefing and reargument having been filed in the above-captioned matter on May 17,1993, the motion is hereby granted in part, and the mandate on remand is hereby clarified as follows:
Because, for the reasons stated in the plurality opinion filed in the above-captioned matter on May 5,1993, the circuit court erroneously granted Lewin’s motion for judgment on the pleadings and dismissed the plaintiffs’ complaint, the circuit court’s order and judgment are vacated and the matter is remanded for further proceedings consistent with the plurality opinion. On remand, in accordance with the “strict scrutiny” standard, the burden will rest on Lewin to overcome the presumption that HRS § 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights. See Nagle v. Board of Educ., 63 Haw. 389, 392, 629 P.2d 109, 111 (1981 ); Holdman v. Olim, 59 Haw. 346, 349, 581 P.2d 1164, 1167 (1978).
Defendant-Appellee’s motion is denied in all other respects.
Intermediate Court of Appeals Judge Heen, having filed a dissenting opinion in this matter, does not concur.
