*1
Michael Harris, Miyamoto- Kenneth V.
Waite Tatum, Wendy Tatum,
Slaughter, David Murray, Robert S. Petitioners/Plain
tiffs-Appellants,
George Klare, Jean Herman Barbara
Lang, Plaintiffs-Appellees,
v. Ikeda, YAGONG, Yosh
Dominic Donald J. Onishi, Bias,
imoto, Dennis Fred Britta Smart, Ford, Angel Pilago,
ny Brenda Hoffman, Hawai'i Pete current members; Jay Kimura,
County Council County Prosecutor; Mitchell
Hawai'i Iboshi, Deputy Pros
Roth and Charlene Kenoi,
ecuting Attorneys; Billy respondeat
County Mayor, superior,
Harry Kubojiri, Chief of Kelly Greenwell, Guy Enriques,
Police, Nae'Ole, Emily previous Hawai'i Respon members,
County Council
dents/Defendants-Appellees.
No. SCWC-13-0000117.
Supreme Hawai'i. Court of
June Nancy Ruggles, Waite
Michael D. Rev. Harris, Miyamoto-Slaughter, V. Kenneth Tatum, Tatum, and Robert S. Wendy David pro Murray, petitioners se. Udovic, Hilo, respondents. J.
Michael *2 RECKTENWALD, O.J., NAKAYAMA, (“LLEP”), preempted of Cannabis” is in its JJ.; McKENNA, POLLACK, J., entirety by with Passed state law. voter initia- dissenting, WILSON, J., joins. in provides with tive whom the follow- ing, in full: Opinion by McKENNA, of Court J. Article 16. Lowest Law Enforcement I. Introduction Priority of Ordinance. Cannabis Petitioners, pro group se individuals Purpose. Section 14-96. following County, present from Hawai'i purpose The is this article to: question: the Intermediate “Did Court (1) Provide enforcement more time Appeals determining in err the Lowest crimes; to focus resources serious Cannabis, Priority of Law Enforcement (2) systems Allow our court to run more initiative, sponsored in entirety voter is in efficiently; laws, conflict is preempt- with State thus (3) space prisons in Create our to hold in question ed them?” answer this We criminals; serious negative. case that a Our law holds (4) money taxpayers provide Save municipal ordinance funding more for necessities such (1) as edu- subject state law “if covers it the same care; cation and health comprehensive matter within a embraced statutory disclosing (5) express state scheme an Reduce the fear and the implied to be exclusive intent and uniform stigma criminality from non-violent citi- throughout the state conflicts with harmlessly zens who cultivate use and/or City Cnty. state law.” Richardson v. & medicinal, cannabis personal, religious, Honolulu, 46, 62, 76 Hawai'i purposes. and recreational (1994) (citations omitted). Findings. Section 14-97. accepted clarify We certiorari to (a) Medicine has Institute found solely in is preempted ordinance this case (marijuana) that cannabis has medicinal because it “conflicts with is state law.” It gateway drug. value is not not necessary to address whether the LLEP (b) According to the U.S. Centers for Dis- “covers the same matter embraced Control, (marijua- ease the use cannabis within comprehensive na) directly per in zero year. results deaths disclosing scheme in- implied (c) According to the National Institute of throughout tent to and uniform be exclusive (NIDA), Drug marijuana Abuse eradi- published opin- the state....” Id. The ICA’s program stopped cation has cannabis erroneously ion conflates the two Richardson county, pro- cultivation in the rather the prongs, harmless, but is the error as the ICA gram availability has decreased clearly held that conflicts plant, which increases its “street” val- preemption and the Richardson ue, resulting in more crime. Therefore, disjunctive. test in the stated (d) Drug National Institute Abuse judgment appeal, affirm we the ICA’s (NIDA) reported large also that a increase Circuit Court Third affirmed the methamphetamine, the use of crack co- court”) (“circuit Circuit’s1 Final Judgment. caine, drugs and other hard was related to marijuana program’s imple- eradication Background II. mentation. Chapter A. Article 16 of 14 of the Ha- (e) record, According public the ‘manda- County En- waii Code: Lowest Law tory program marijuana review’ for the Priority of forcement Or- Cannabis program, required by eradication section dinance per- 3-16 of the Charter to be appeal At every years, issue in this Article whether formed least once four has Code, performed thirty 16 of 14 the years never been Priority program entitled “Lowest Law Enforcement has existed. Greg presided. K. The Honorable Nakamura twenty (f) or fewer being involving four cannabis abiding adults are arrested Law any stage maturity plants of- or the imprisoned for nonviolent cannabis cannabis, dockets, fenses, equivalent dried where the clogging our court over- tying personal for adult crowding up our cannabis was intended prisons, valuable costing tax- use. law enforcement resources
payers of thousands of dollars hundreds equivalent” twenty four or The “dried *3 year. alone each plants presumed fewer cannabis Hailey, (g) The of the Cities of citizens twenty four ounces of usable or fewer Idaho; Colorado; Seattle, Denver, Wash- cannabis, excluding non stems other Missouri; Columbia, ington; Eureka parts. greater A amount also active Barbara, Springs, Arkansas and Santa the Lowest Law Enforcement fall under Cruz, Oakland, in Monica and Santa Santa Priority provisions if such described herein California, citizens Missoula and the of competent shown amount is evidence Montana, County, all cannabis voted for equivalent more of be no than the dried (marijuana) placed as law enforce- to be twenty plants. four priority past lowest within five ment’s law enforcement Lowest years. relating per- priority policy to the adult Definitions. Section 14-98. use of sonal cannabis. any who is “Adult” means individual (a) cultivation, possession The and use twenty years age of or one older. personal use of cannabis shall be adult of personal use” means the use “Adult Priority Law Enforcement for law Lowest It private property adults. cannabis agencies in county. enforcement does include: commissioner, (b) police The (1) cannabis; of Distribution or sale police of and all the chief associated (2) sale, cultivation, Distribution, or use of staff, deputies, enforcement officers public property; cannabis on attorney prosecuting any on behalf of the (3) influence; Driving or activity county shall law enforcement make cannabis, (4) trafficking of The commercial offenses, relating to cannabis where possession of of amounts cannabis or the personal for adult cannabis was intended being of amounts excess defined use, Prior- their Lowest Law Enforcement appropriate personal use. for adult relating to ity. Law enforcement activities (as include but are not limit- cannabis offenses
“Marijuana”, defined 712-1240) prosecution of cannabis offenses to the ed of Revised Statutes involving personal use of the adult cannabis. means cannabis. parts canna- all “Cannabis” means not; growing plant,
bis whether (e) police, police the chief Neither thereof; from resin extracted seeds commissioner, attorney any prosecut- nor plant; every any part of the cannabis county, nor ing on associ- behalf derivative, manufacture, salt, compound, staff, deputies, nor ated law enforcement plant, preparation mixture or seek, accept renew officers seeds, or its resin. deputization or or informal commis- formal Priority” agen- sioning by a law enforcement Enforcement federal “Lowest Law citing, purpose investigating, cy that all for the priority such law enforce- means adults, searching or arresting nor for to all offenses other ment activities related from for cannabis possession seizing property or cultivation of canna- adults than the En- Lowest Law higher use shall be offenses personal bis for adult Priority of cannabis where such activities forcement priority than all law enforcement poli- in violation of that personal of canna- activities would be use related the adult such authorities exercise such cy, Priori- nor shall Law Enforcement bis. Lowest ancillary deputiza- ty regarding possession powers cultivation commissioning purpose. for another any single apply to case tion or cannabis shall (d) council shall not the ac- authorize described section 14-98 and 14-99 article; ceptance issuing funding or the this investigate, cite, is intended to be used to report Publish semi-annually arrest, prosecute, property search or seize implementation every chapter this in a man- adults for cannabis offenses day every day first June and first county’s with ner inconsistent Lowest December, forward, day from this Priority policy. Law Enforcement report being first issued June County prosecuting Section 14-100. at- reports These shall include but not be torneys. arrests, limited to: the of all cita- number To the full the Consti- extent allowed tions, seizures, property prosecutions Hawaii, tution State all county, cannabis offenses through request government, complaints regarding marijuana number of county prosecuting attor- that neither the over-flights; eradication breakdown *4 ney attorney any prosecuting nor on behalf race, all cannabis citations arrests and prosecute county any of violations the shall specific age, charge, and classification as chapter of of of the sections the infraction, misdemeanor, felony, or the es- regarding pos- Hawaii Revised Statutes money spent by timated time the and or in a session cultivation of man- cannabis county on punish- law enforcement and with Law En- ner inconsistent the Lowest offenses, any for ment adult cannabis and Priority, as section forcement described deputies of assisting instances officers article; of 14-98 and 14-99 this cases in state or enforcement of federal adult possessed grown where the amount is reports cannabis offenses. These twenty plants than four less or the dried cooperation published -with of the the coun- equivalent, possession personal for adult ty attorney, prosecuting police, the of chief presumed. use shall be all and associated staff in law enforcement Expenditure providing Section of 14-101. funds needed data.
for cannabis enforcement. local, Section 14-103. Notification of (a) police Neither nor com- the the state, and federal officials. missioner, any nor police, nor chief of (a) article, After the of enactment this attorneys prosecuting on of behalf county clerk shall letters on send an annu- county, any nor enforce- associated law (every year) al basis 1st of each June staff, deputies, spend ment or officers shall mayor county, of of county expenditure any public or authorize the of Congressional Delegation, Hawaii voters’ arrest, investigation, pros- for funds senators, county Hawaii’s Ha- U.S. of person, ecution of search nor representatives waii voters’ in the Hawaii property seizure of in a manner Legislature, Hawaii, State Governor of inconsistent with the Lowest Law Enforce- and the President of the United States. Priority ment defined section 14-98 state; This letter shall “The citizens of the and 14-99 of this article. County passed of Hawaii have an initiative (b) support The council the ac- to make Cannabis offenses the Lowest ceptance marijuana funds for the Priority, Law Enforcement where the Can- program. eradication use, personal nabis for adult intended Community oversight. Section 14-102. request the federal and state timely im- council shall ensure the branches of remove criminal plementation working this chapter by cultivation, penalties possession for police police with the chief use; personal and/or Cannabis for use adult commissioner to: request policies citizens also that Cannabis
(1) procedures within Provide to receive Hawaii here be dealt grievances only.” from our individuals who believe local law enforcement they subjected state, enforce- letters were to law also the will activity contrary county council; ment Law according Lowest Priority cannabis, year study performed by Enforcement which is three the Nation- Abuse, Hawai'i Drug more Defendants members al Institute (Dominic County Yagong, Donald methamphetamine as a Council result used Onishi, Ikeda, Yoshimoto, program; they may Dennis Fred marijuana J. eradication Bias, Brittany Smart, Ford, Angel methamphetamine Brenda also Hoffman); County Pilago, Pete community and Hawai'i problem in our growing Jay Deputy Prosecu- appreciated in that Prosecutor Kimura and help more would Iboshi; Roth Ha- area, tors Mitchell and Charlene that the first action that would Kenoi; County Billy Mayor wai'i Hawai'i in that be to end the help area would County Harry Kubojiri; Chief Police marijuana program. eradication previous Hawai'i Council Members (b) duty until This shall be carried out Greenwell, Guy Enriques, Emily Kelly changed are accord- state and federal laws “Defendants”). Plain- (collectively, Nae'ole ingly. alleged that the Defendants failed tiffs Statutory and constitu- Section comply with LLEP. interpretation. tional only be All in this article shall alleged Specifically, the Plaintiffs implemented to the full extent appro- “to Council continued of the State Constitution priate funds to the Po- cannabis enforcement allows, the Hawai'i Revised Statutes Office, Department, and the lice Prosecutor’s event, event, only in that a Corrections,” in violation Department competent jurisdiction determines court prohibition against 14-99’s “the *5 any provision any of this section that issuing any funding that acceptance or the by initia- not be directed voter cite, article investigate, to to used intended be by that or action of the then tive arrest, property or prosecute, search seize mandatory provision only be specific shall offenses,” for and for adults cannabis expression will advisory and of the deemed on prohibition expending 14-101’s Section people that the of the arrest, investigation, for or “public funds gov- implemented into law whichever prosecution any or person, [or] the search to the branch or official who has ernment in a incon- property” manner seizure it, council implement to and that the power the LLEP. sistent with power to take all actions within their asserted that the Ha- The Plaintiffs next work with those branches County 14- Council violated wai'i Section and en- to the will 102(2) failing a semi-annual re- to issue request imple- courage, support, and port that in accordance with section. provisions. of those mentation alleged also that the Hawai'i Coun- Plaintiffs Severability. Section Department report, issue but ty Police did event, event, only in the that In the and report incomplete, was and the Hawai'i competent jurisdiction should find court of report’s County not ensure the Council did sections, parts or or more of the one posited also that publication. The Plaintiffs illegal, provi- or sections this article 14- violated all of Defendants Section application of this or the there- sion article 102(1) by failing provide procedures to to any person or circumstance is held of to grievances from individuals. receive invalid, article and the remainder prosecutors alleged The Plaintiffs that application of such to other by “con- police and violated the not be af- persons or circumstances shall prosecute tinu[ing] to cannabis cases where thereby. fected processed grown than or is less the amount equivalent of 24 plants or the dried Complaints B. Plaintiffs’ ounces....” “Complaint for Breach Plaintiffs filed their Additionally, Plaintiffs asserted 14-96 Duty to Enforce Article County prosecutors police “failed abide through Section 14-105 Hawaii 14-101(a),” prohibits them Injuctive Request for Immediate section Code and “for investí- expending public funds Damages.” They named as Relief [sic] Roth, gation, arrest, person, Kenoi, Nae‘ole, Iboshi, Kubojiri, or En- of any property riques, [or] for the seizure in a Greenwell Kimura answered the Complaint, with the denying allegations, manner inconsistent Lowest Law each of the Priority....” Enforcement Judgment then filed Motions for on the Pleadings.2 argued They that the Plaintiffs’ prayed The Plaintiffs for six of in- items Complaint be “on should dismissed First, junctive they relief. asked grounds that Section 14-96 of the Hawaii police prosecutors be ordered to immedi- County Code is void because it conflicts with ately investigations, arrests, cease and desist Part IV of Hawaii Re- prosecutions any person, or or the search Statutes,” vised and because it covers the any property, and seizure of in a manner subject same matter Hawaii Revised Stat- Second, they inconsistent the LLEP. (“HRS”) through §§ utes -1257 County asked the Hawaii Council be (1993), to Drugs entitled Offenses Related procedures receiving ordered establish for Intoxicating Compounds. 14-102(1). grievances Third, under Section they opposition In them Yagong, asked the Hawaii Council Defendants Ikeda, Yoshimoto, Onishi, Smart, publish reports. Bias, Ford, ordered semi-annual Fourth, they general compliance Pilago, Hoffmann, Roth, Iboshi, Kenoi, asked Kubo- Fifth, Nae'ole, jiri, Enriques’ with the judg- LLEP. the Plaintiffs asked motion pleadings,3 the court Hawaii Coun- order the ment the Plaintiffs coun- ter-argued accepting cil to authorizing attempt cease funds for “does purposes prohibit investigating, citing, stop arresting arrest- defendants from ing, prosecuting, searching proper- prosecuting Chapter violations, seizing nor etc., ty, duplicate, related to cannabis-associated of- does or enter onto contradict LLEP, fully occupied by general fenses as outlined in the all law[;] it police prosecutors merely priori- funds allotted to directs defendants to until it tize and withheld could be determined how utilize their time resources money important spent presumably community much more according had been issues Sixth, they legislative statutory violation of the LLEP. asked that scheme.” *6 Hawaii Council County be ordered to granted The circuit court the Defendant’s County hold the Hawaii of Police ac- Chief motions judgment pleadings for office, for upholding his oath countable of orders, dismissed the case. the circuit else remove the Chief Police from office. following findings: court made the factual $5,000,000 Plaintiffs prayed The also 1. Under 14-99 of the Section Hawaii punitive damages for the “willful and mali- County Code, law enforcement activities cious violation” Defen- including prosecution involving criminal of- dants, compensation as well as reasonable fenses which fall within the definition of expenses the Plaintiffs for “their time and Priority Lowest Law Enforcement are to comparable attorneys’ to that rates have priority. the lowest community.” local Chapter 2. Under Article 14 of County Code, County Hawaii Ha- Judgment
C. Motions on the Plead- personnel waii law are: enforcement ings a) deputizing from Prohibited or com- Ikeda, Yagong, Yoshimoto, Defendants missioning personnel federal enforcement Onishi, Bias, Smart, Ford, Hoffmann, Pilago, participating investigation in the defendants, separately 2. Greenwell and Kimura filed An- made to the rest of that the swers, separately Judg- filed a Motion for argued “passed by Plaintiffs the LLEP was Pleadings. ment on through County legally of Hawaii binding process,” "[t]he initiative thrust of separate opposition 3. Plaintiffs filed a Green- responsibility,” this initiative bis, not is fiscal canna- judgment well and Kimura’s motion for on the severability LLEP's clause ren- pleadings. arguments opposition The in the provisions advisory ders invalidated rather judgment Greenwell and Kimura's motion for mandatory. than pleadings arguments slightly differ from the Chap- 16 of provisions fall Article within 4.The of offenses which prosecution Code, County un- are thus ter Hawai'i Lowest Law Enforce- the definition 14-99(e), enforceable. Priority. Hawai'i ment Section County Code. Judgment, The circuit court entered Final
b) timely appealed. obtaining Prohibited from funds for Plaintiffs investigation offenses of the fall Low- within the definition Appeal which D. ICA Priority. Section Law Enforcement est appeal, follow- the Plaintiffs raised the On 14-99(d), County Code. error, ing the first points three but e) spending or authoriz- Prohibited from pursued two on certiorari: remain spending for the ing of funds investi- it deter- 1. The Trial Court erred when fall within gation of offenses which the def- mined Art. Law Enforcement inition Lowest (hereinafter of the Hawai'i Code 14-101(a), Priority. Section Coun- Priority “Lowest Ord.” or to as referred ty Code. “Ordinance”) pro- were visions of Title Hawai'i Revised Stat- enforced, prevent if would Article 3. (“HRS”). not utes The Ordinance does investigation prosecution of of- conflict, contradict, into duplicate, or enter fall the definition of within fenses occupied by fully an area Priority Law Enforcement un- Lowest HRS, 37; nor does the Ordinance Title 14-99 of the Hawai'i der Section permits, per- prohibit what the statute Code. prohibits.... mit what the statute 16, enforced, prevent if would 4. Article it did not 2. Trial Court erred when The investigation prosecution in the Severability of Article Clause consider the following criminal County of Hawai'i of the Trial Court also when The erred the Hawai'i defined under Penal offenses unen- that the entire Ordinance was ruled 712-1247(1)(e) Promoting a Code: Section .... forceable Degree; Drug in the First Detrimental Findings Trial Court erred 712-1248(1)(c) Promoting a Detri Section Law, Fact, and Order Conclusions Degree; Drug in the Second mental (FOF) facts providing not sufficient 712-1249(1) Promoting a Detri support disposition ultimate Degree. Drag in the Third mental mis- facts are omitted or ease. Material following conclu- circuit court made the result, facts do quoted. As a the listed sions of law: support application the correct *7 municipal A ordinance 1. do Facts the Trial Court cited if it the same preempted covers of to the logically lead Conclusions comprehensive matter embraced within Law.... disclosing an ex- scheme affirmed published opinion, the ICA implied to be exclusive and press or intent Ruggles Judgment. Final court’s the circuit throughout or if mu- the uniform the state 511, 155 P.3d Yagong, Hawai'i 323 v. 132 nicipal ordinance conflicts with state (2014). following: ICA held The of of Ha- The Penal the State Code with, LLEP conflicts We conclude penal comprehensive code laws is a wai'i gov- preempted by state laws and thus is Ha- applies throughout State erning investigation throughout uniformly applied is wai'i Penal alleged Hawai'i violations Statutes, Sec- Hawai'i Revised the State. concerning personal use the adult Code tion 701-106. further conclude cannabis. We personal use adult Chap- LLEP covers the 16 of Article subject matter cannabis, Code, is the same 14, preempt- County are Hawai'i ter govern un- legislature intended of Title 37 of the ed Chapter provisions for 329 der HRS Revised Statutes. Hawai'i 418
regulation of drug degree). controlled substances. The the third 132 Hawai'i at P.3d at preempted by 323 is therefore the Ha- waii Penal Code and HRS Expanding analysis, on the ICA’s Uniform Hawaii’s Controlled Substances LLEP also conflicts with law requiring Act. attorney general the state prose- attorney cuting investigate prosecute Hawai'i 323 P.3d 160. The violations of the statewide Penal Code. HRS ICA did not address the LLEP’s severability 28-2.5(b) (2009) § investiga- delineates the challenge clause. The Plaintiffs now powers attorney tive general and coun- holding entirety ICA’s the LLEP ty prosecuting attorneys conducting when is in conflict with state law. investigations. criminal Pursuant to HRS III. Standard Review (2009), § attorney general 28-2 “shall be vigilant detecting and active offenders appellate An court reviews a circuit against State, prose- the laws granting court’s judgment order a motion for diligence.” § cute the same HRS pleadings de novo. See Hawai'i Med. (2009) state that pro- does “unless otherwise Ass’n, Inc., Ass’n v. Hawai'i Med. Serv. by law, department attorney [the vided 77, 91, general prosecute involving shall] viola- cases ” phrase tions of state laws.... as “oth- IV. Discussion not, provided by however, erwise law” does certiorari, argue On the Plaintiffs Rather, countenance laws such as LLEP. (1) that there is no conflict between the that, it recognizes although attorney “the Statutes, Ordinance and Hawaii Revised general, legal as the chief officer for the (2) conflict, is if there still there State,” responsibility has “the ultimate preemption be no enforcing penal applica- laws of statewide (3) laws, general State even if tion,” public prosecutor “[t]he ... has been preemption there is it is of those delegated primary authority respon- particular parts sections or of sections in sibility initiating conducting criminal which conflict found, that if in prosecutions county jurisdiction.” within his fact Ordinance, there some error in the Amemiya Sapienza, v. 63 Haw. it is Defendan1>-Ap- due actions of the (1981). Thus, although pellees and it is responsibility to fix county prosecutor delegated pri- has been it. mary prosecutorial duties, under Hawai‘i 9-3(a)(2) (2010), County Charter the duties arguments We each of address these seria- prosecuting attorney for the tim. “[p]rosecut[ing] include offenses Preemption A. under the Second Rich- against laws of State the au- Prong ardson thority attorney general of the State.” Therefore, county laws such the LLEP First, argue the Plaintiffs that “there general’s usurp attorney cannot duty, is no conflict between the Ordinance and ” delegated prosecuting attorney, disagree Hawai'i Revised Statutes.... We prosecute penal violations of the statewide and affirm holding the ICA’s clear that “the code. with, LLEP conflicts and is thus *8 by governing investigation state Therefore, correctly the ICA ruled that the prosecution with, of alleged preempted violations the Ha conflicts thus and is by, waii concerning per governing investigation Penal Code the adult state law cannabis,” alleged namely sonal violations of Chapter use of the Ha- HRS (the waii Penal Code. 329 Hawai'i Uniform Controlled Sub Act) 712-1247(1)(e) §§ stances and HRS Preemption B. under the First Richard- (1993) (promoting drug a in detrimental Prong son -1248(1)(e) (1993) degree); first (promoting a drug in degree); Second, detrimental the second argue the Plaintiffs “there still -1249(1) (promoting preemption a detrimental no Ordi
419
address,
laws,”
mu
general,
in
a
general
pointing to the
need
whether
nance
State
test,
nicipal drug
field-preempted
is
ordinance
prong
the Richardson
first
Act.
“municipal
ordinance
the state Uniform Controlled Substances
that
states
holding is
subject
if
note that such a
rare across
preempted”
it covers the same
We
forty-eight5
that
comprehensive
the nation. Of the
states
embraced within
matter
disclosing
express
adopted
of the Uniform Con
an
have
some form
scheme
Act, only
has held
exclusive
uniform trolled Substances
one
implied
intent to be
state,
if
“occu
the ordinance
that its state controlled substances act
throughout
Richardson,
involving
pies
Haw
of penalizing
76
the field
crimes
conflicts with state law.
62,
substances,
thus
(emphasis
impliedly
1209
add
ai'i
at
868
at
controlled
which,
ed).
ordinance,
“disagree
preempting” municipal
Penal
The Plaintiffs
case,
comprehen
provided
is
for the forfeiture of vehi
of the State of Hawaii
Code
acquire
attempt
acquire
sive,
uniformly applied throughout
if
cles used
even
contend,
City
They
“Nothing
ex
O’Connell v.
was
controlled substances.
state.”
pressly
Stockton,
1061,
67,
41
Cal.Rptr.3d
statutes
Cal.4th
63
in the
as
mentioned
583,
exclusivity.”
589,
holding,
In
(Emphasis
so
Penal
162 P.3d
590
Hawaii
Code’s
examined,
argument
Supreme
as chal
of California
original).
We read this
Court
detail,
“comprehensive na
lenging the ICA’s
“tedious”
conclusion
act]
...
substances
[its
the same
matter
ture
state controlled
“covers
drug
specifying
govern
defining
penalties
legislature intended to
under HRS
crimes
forfeiture)....”
(including
regulation
Cal.Rptr.3d
for the
63
Chapter 329
at
The O’Connell Court
substances.”
titled portions of “proce- position provide with the Dissent’s Hawaii Council to *11 added). “advisory (Emphasis the remain as ordi- it....” It should also states council county’s that “the shall take all power promulgate nances.” A to actions within power to VIII, work with those branches of governed by ordinances is Article Sec- government express to the will of the tion 1 of the Constitution the State encourage, support, request and im- and the Hawaii, states, legislature which “The shall (em- plementation provisions.” of those Id. counties, politi- create and create other added). Therefore, phasis the section is ac- State, provide cal subdivisions within the and tually mandatory, advisory. not political government for the thereof. Each pow- shall have subdivision and such earlier, exercise places responsi- As noted state law general ers as shall bility enforcing be conferred under penal laws of statewide added.) (Emphasis Thus, pursuant application attorney on general. laws.” See 26-7, 28-2, §§ Primary respon- to Constitution, county’s pow- the Hawaii HRS 28-2.5. sibility initiating conducting and criminal by ers are limited to those conferred prosecutions within counties dele- further legislature general legisla- under laws. gated county prosecuting attorneys. to See has powers ture outlined “General Amemiya, 63 Haw. at P.2d at 1129. § limitations of the counties” in 46-1.5 HRS Not does the LLEP conflict state 46-1.5(13) (2012) provides § HRS law, mandatory language of 14- Section county Each to power shall have the enact regarding 104 creates confusion the duties protect necessary ordinances to deemed government officials. health, life, property, preserve to Finally, (2012), legisla- § in HRS 50-15 security county the order clearly provided “[Notwithstanding ture on subject its inhabitants or matter chapter [governing of this with, defeat, or tending inconsistent to Commissions], expressly Charter there is re- the intent of state statute where legislature to power served to enact express statute does not disclose an general all application throughout laws implied intent statute ..., on State matters of concern and interest uniform throughout exclusive or adopted and neither a charter nor ordinances State.... charter shall be conflict there- earlier, As noted we need not address added). (Emphasis “advisory with.” As the Chapter “compre- whether 329 discloses a ordinances” the LLEP conflict contained statutory disclosing hensive scheme an ex- law, they with State cannot stand. press implied intent be exclusive throughout state,” uniform first Rich- Conclusion V. prong, parallels ardson which this subsec- solely The LLEP is it because assuming Chapter tion. Even 329 does not not, “conflicts with state law.” We need scheme, such disclose subsection au- not, do address whether the LLEP “covers county health, protect thorizes ordinances “to subject the same matter embraced within a life, property, preserve and to the order comprehensive scheme dis security county and its inhabit- closing implied intent to be long they ants” as are “not inconsistent throughout exclusive and uniform with, defeat, or [do tend[ ] to intent not] Richardson, state....” 76 Hawai'i at [Chapter earlier, 329].” As we held at 1209. hold that We also the entire “advisory purported ordinances” with, LLEP is it invalidated because conflicts LLEP conflict with do not 329 and preempted by, therefore meet this standard. made, these With clarifications we affirm the Moreover, judgment appeal, ICA’s which affirmed which the dis- Judgment. the circuit court’s Final posits sent can as an remain the books expressing statement the will Dissenting J., Opinion POLLACK in Rather, merely advisory. is not WILSON, J., joins. implement- states “that the into judicial ed law whichever branch This case concerns review power implement or official who has ordinance enacted Hawaii process initiative accordance with Article VIII pursuant the voter voters Constitution, legislature the state en- forth in the Hawaii Charter. set pow- general that if acted expressly provides HRS 46-1.5 allocate The ordinance ers, limitation, the counties. conflict with state of its Honolulu, City Cnty. See Richardson v. & conflicting provisions shall be deemed adviso- 46, 59-60, severed, preserving ry the ordinance as or be *12 people. By (discussing legislative of expression an of the of the evolution will 46-1.5). Among powers granted § provisions HRS the application of these corrective to conflict, legislature pow- any by to the is the potential the ordinance counties resolve necessary “to to an er enact ordinances deemed expression is maintained as the voters’ health, life, protect property, pre- to prosecution and and investigation and view security county serve order and minor cannabis offenses should certain be subject for and its inhabitants on matter priority local law enforcement and lowest defeat, with, or government tending in- not inconsistent to that scarce resources should the intent of state statute where be allocated to “necessities such as stead express statute an or im- health does disclose and care.” education plied intent that statute exclusive Accordingly, provi- corrective because the throughout or uniform the State.”1 HRS preserve the will of the voters sions and 46-1.5(13). § any conflict the ordinance forestall between majority’s I dissent from the and state In each of the four counties within entirety. in its ordinance invalidation Hawai'i, may be State ordinance enact- first, processes: through legislative
ed two Background I. by majority by of a vote members second, county’s County Council and as each County’s to a. The Power “legislative structure includes the and Enact Ordinances power legislation through pop- to enact vote,”2 authority county’s delegation by majority from ular vote of the citizens county. adopt of a Kaiser Hawai'i Kai Dev. Co. v. to “frame the state charter Honolulu, 480, 496, self-government” expressly City Cnty. set & Haw. own 244, Accordingly, pur- VIII of the Hawai'i Constitu- forth Article 46-15(13), limits, county § delineates, grant to council tion suant which HRS through power particular county political from the to its subdivi- the citizens Const, § be- Haw. art. 2. Pursuant to voter initiative enact ordinance sions. health, constitution, necessary protect lieved to to life adopted, provi- charter be once “executive, preserve respect county’s property, and to the order and sions with to the security county, subject only to the legislative and administrative structure and condition is not organization superior ordinance authority forth in provisions, subject the limitations set under 46-1.5(13) § § applied general allocating laws HRS HRS 50-15 as legislature enact through reallocating powers Richardson test.3 functions.” Id. court, Richardson, power two-part limitations on the to enact set forth a 3.In addition to 1. This test, 46-1.5(13), infra, § § whether an HRS HRS 50- to determine ordinances under discussed power on the ordinance meets limitations 15 bars ordinances charter § in HRS enact ordinances enumerated 46- law on statewide conflict with state matters of 1.5(13). effectively concern interest. Such conflict is by subsumed the second addressed test, prong preemption of the Richardson county within the State of Hawai'i has 2. Each provides preempted if that an ordinance organic adopted a charter—“the law the coun- Richardson, 76 with state law. See conflicts power ty”—providing its en- citizens with Thus, 868 P.2d at through See act ordinances voter initiative. 11; § not a basis for Charter, because HRS 50-15 is discrete Counly County Kauai Maui Article LLEP, 23; invaliding Charter, it need not be addressed Charter of Honolu- Article Revised 4; analysis. lu, independently See County from the Richardson and Hawai'i Article Charter, id. Article 6. Priority ing b. type Lowest Law Enforcement of cannabis offenses covered 1496(4). Ordinance Cannabis LLEP Ordinance.8 In November the citizens of Hawañ serving expression addition to as a clear County right, pursuant exercised their the will of the con- Charter, Article ofVI the Hawañ guide tains con- directive county through enact voter initia- ordinances strain enforcement and of of- Among passed by tive.4 initiatives voters falling purview.9 fenses under its LLEP during Hawañ the 2008 election 14-99, -100, §§ -101. example, For entitled, ordinance, was an “the Lowest Law places limitations on enti- Priority Enforcement Cannabis Ordi- funding, investigation, ties prosecu- as to (“LLEP” Ordinance”),5 nance” or “the tion covered offenses the Ordinance. sought primary objectives.6 to achieve two §§ Additionally, -101. First, the voters enacted the Ordinance to provides specific action investigation their view that the *13 officials, publication including the of an annu- prosecution quantities of small of cannabis report al procedures creation of to and the possessed by pri- or adults used within their - 14-102, §§ enforce LLEP the Ordinance. priority vate residences be the lowest should Thus, objec- 103. the Ordinance has dual for County.7 law Hawañ enforcement within tives-first, to the will of the citizens 14-98, §§ LLEP -104. Rather than allocat- County regard Hawañ prioriti- ing expending limited law enforcement prosecutorial zation of law enforcement and prosecutorial on resources the enforce- second, and, resources to di- effectuate the involving possession ment of offenses of can- provisions. rective by private property, nabis adults on the vot- Significantly, approving the voters conveyed strong ers for desire those certain, all, LLEP anticipated that or even resources to be focused more serious crimes, mandatory provisions may the Ordinance’s specifying that for instance “metham- phetamine be found to conflict with growing problem is a state law and there- our com- - munity.” 14—96(1)—(3), fore -97(f), pre- §§ LLEP included corrective to objective accordingly sought primary -103. The serve a voters to the Ordinance. -104, representa- First, §§ inform their county government -105. Or- tives that “funding provides believed specifically voters for dinance that if a court mandatory provision may necessities such as education and health were to that find a greater to priority proseeut- initiative, care” be a than by be voter directed then Among powers 4. applies only possession enumerated in the charter The Ordinance power county is the vested in the citizens of the twenty-four up plants, cultivation of cannabis through to enact voter ordinances initiative and equivalent up twenty-four dried Charter, County referendum. Hawai'i Article VI use, i.e., plants, personal for adult "the use County generally The Hawaii Charter property private by” cannabis on individuals provides powers [the] "no enumeration of twenty-one age years § 14- older. LLEP charter shall be exclusive or deemed restrictive.” II, County Hawaii Charter Article Section 2-1. Although enact ordinances specifically 8. The Ordinance excludes distribu- initiative, through voter Council re- cannabis; use, sale, tion or sale of or distri- power repeal tains the to amend a voter public property; driving bution on influence; under by majority initiative a two-thirds vote. Hawaii trafficking of and "the commercial Charter, XI, l-7(d). Section 1 Article cannabis, possession or the of amounts of canna- Ordinance, subsequently 5. The was No. being bis in excess of amounts defined as 16, codified as 14 of the Article Hawaii appropriate personal for adult use.” LLEP County Code. § 14-98. infra, 6. As discussed the voters enacted the LLEP 9. LLEP that direct or mandate action to, alia, provide inter enforcement more tíme are referred to-herein as "directive” or "manda- crimes, resources to serious focus allow toiy” provisions. systems efficiently, the provide more court to run funding more for education and health § care. LLEP 14-98. alia, advisory, continued to is to be inter officials provision deemed directive prosecute cannabis cases inconsistent with “expres- provision is to remain as and the prosecu- the LLEP’s mandates and fund the people” it be sion of the will by tion and enforcement offenses implemented into law LLEP, “despite people of Hawai'i Coun- power that has to do so. branch or official ty’s expressed desperately intent that Further, needed See § 14-104. in the event support allotted maintain and funds be mandatory deeming provision educational, health vital and infrastructure conflict, the Ordinance does not resolve programs.” problems plaintiffs specific conflicting LLEP provides that the sought injunctive relief the form of court severed, so as to not affect requiring county to abide order officials See of the Ordinance. remainder directives, punitive Ordinance’s as well as Finally, one of the Ordinance’s damages compensation and reasonable provisions governing of of- expenses their efforts related expressly covered the Ordinance fenses case.10 self-limiting to qualified request and is Ha- apply only to the extent allowed subsequently The defendants moved for LLEP § 14-100. wai'i Constitution. asserting judgment pleadings, on the was void because it conflicted with Accordingly, to achieve the order additionally ar- state law. defendants objectives, the voters intended LLEP’s plaintiffs standing gued that lacked provisions to directive Ordinance’s bring complaint and contended the extent allowable under out to carried *14 right bring not does create the Ordinance In event that a court the deter- law. damages. private a cause action for mandatory provision of the mines that a plaintiffs by response, not initiative the be directed voter In contended that pro- stop by prohibit or not or action the Ordinance does the the mandatory provision is to be or of criminal viola- vides that the enforcement rather, but, non-binding as a state- the defendants to construed tions directs people. will of expressing ment utilize time and resources prioritize and their Thus, important community
on issues. more Legal Challenge plaintiffs c. that the Ordinance maintained In conflict with not does 24, 2011, approximately two On March pro- plaintiffs’ response to the defendants’ by years a half after the was enacted findings of fact and conclusions posed voters, pro (plain- se individuals several argued severability plaintiffs the LLEP’s tiffs) complaint in jointly a the Circuit filed “guarantees spirit of the clause (circuit court) Court of the Third Circuit conflicting provisions and that remains” officials, county including against numerous “rather than broad rul- should be severed Council, County of the Hawai'i members unenforeeability.” ing of Office, County and the Prosecutor’s Hawai'i 15, 2011, court (collectively, the circuit County On November Chief Police Hawai'i Fact, Findings “defendants”), its Conclusions of alleging that the officials had entered Order, granted failing to Decision and which “ignored people” by Law and the will judgment on alleged, motion for plaintiffs LLEP. The the defendant’s by the abide accepting authorizing plaintiffs requested quired or funds the fol- to cease Specifically, (1) investigating, citing, purposes police prose- of searching arrest- lowing injunctive for the relief: seizing property, ing, prosecuting, immediately de- cease and be ordered cutors arrests, etc., to cannabis-associated offenses as investigations, prosecutions related sist LLEP, any proper- in the and that all funds allotted person, outlined or the search seizure LLEP; (2) prosecutors until ty, police and be withheld manner inconsistent with the in a money had much been County to estab- be determined how Council be ordered could Hawai'i LLEP; presumably in receiving grievances spent violation of the procedures lish for 14-102(1); (3) (6) County County be ordered to Hawai'i Council Coun- reports; Police account- publish hold the Hawai'i Chief of cil semi-annual be ordered to office, (4) comply upholding else his oath be ordered to able officials LLEP; (5) Chief of Police from office. be re- remove the the Hawai'i Council pleadings. The court concluded that the en- ed” two “advisory” sections—an section and tire Ordinance was state law severability section—that direct the actions and was thus unenforceable. The circuit should result the event that a court court Judgment entered its Pinal January any provision finds to conflict with state law. 28, (judgment), all dismissed claims plaintiffs’ in the complaint with II. Standards of Review prejudice. a. plaintiffs appealed the circuit court’s appellate An court judgment reviews circuit court’s Ap- the Intermediate Court of (ICA). granting peals judgment order a motion for brief, In opening their pleadings plaintiffs de novo. See argued, alia, Haw. Med. Ass’n inter v. the circuit Ass’n, Inc., Haw. court Med. Serv. 77, erred “indiscriminately striking 113 Hawai'i 91, 148 entirety 1179, 1193(2006). down LLEP, thus, the” “quash[ing] the will of people,” even clearly when the Ordinance establishes that b. provisions are response, severable. In interpretation statute, “The of a ordinance the defendants maintained that question charter is of law reviewable de cannot be severed because the novo.” Korean Buddhist Dae Won Sa Tem entirety of the LLEP is inconsistent with ple Sullivan, v. 87 Hawai'i 953 P.2d state law and thus the Ordinance is unconsti- (quoting Arceo, State v. tutional brief, reply void. 1, 10, (1996))(alter plaintiffs quoted the advisory provi- LLEP’s omitted). ations starting fundamental sion, 14-104,11 argued that the circuit point interpretation is the lan court “did not find” guage itself, of the statute and “where the the LLEP be directed voter statutory language plain unambiguous, initiative or were invalid. The ICA affirmed duty [the give court’s] sole is to effect to its judgment, the circuit court’s concluding that plain and obvious meaning.” Haw. Gov’t with, the Ordinance conflicted and was thus Empls. Lingle, Ass’n v. 124 Hawai'i preempted by, state laws governing the in- *15 1, (2010) 239 6 (quoting Awakuni v.
vestigation
and
of alleged viola-
Awana,
126, 133,
115 Hawai'i
1027,
tions of the Hawai'i Penal Code and the
(2007)).
1034
Uniform Controlled
Ruggles
Substances Act.
Yagong,
511,
v.
132 Hawai'i
The application an filed Legal writ Validity a. Function and they certiorari in presented of Voter Initiatives following question: “Did the in [ICA] err Democracy 1. Direct and determining [LLEP], spon- a voter Voter Initiative initiative, sored in entirety is in conflict laws, with State power and is thus by people vested in bring plaintiffs them?” argue legislation inter alia that about through the initiative and the citizens who process, authored the LLEP “antici- referendum known as “direct de- pated might certain ... mocracy,” “is so fundamental that it is de- adjudicated invalid, consequently and right includ- ‘not granted scribed as a LLEP§ provides as follows: expression shall be deemed of the people All will of the only this article be im- plemented implemented by govern- into to the full whichever extent that the Constitu- tion of the power State of Hawai'i ment branch or and the Hawai'i official who has the allows, it, event, implement Revised Statutes and in the and that the council shall take all event, only in competent power that a court of actions within their to work with those jurisdiction any provision determines branches of the will of section of people this article encourage, support, not be directed re- by voter quest initiative or implementation action of the provisions. of those specific then mandatory provision LLEP 14-104.
427 ” ambiguously neighborhood Native sion of founded power reserved them.’ but as City v. & Envtl. Prot. Ass’n preferenee[;] Am. Sacred Site is ... [i]t an exercise Capistrano, Cal.App.4th 120 San Juan through right of their traditional di voters of 961, (2004) 966, Cal.Rptr.3d (quoting 16 146 legislation to the views their rect override etc., City Inc. v. Home Builders Associated representatives as serves the elected to what Livermore, Cal.Rptr. Cal.3d 135 18 Span public (quoting Alameda interest.” S. (1976) banc)); (en see also P.2d 473 557 City, 424 Speaking Org. ish v. Union F.2d Head v. Coal. Town Hilton Island Cir.1970)). (9th 291, 294 449, 415 Expressway Opponents, S.C. 307 Consequently, when citizens mobilize (noting that when the S.E.2d initia- right legislation signatures place in order to to enact collect voters exercise power initiative through the enact the tive on ballot thereafter charter, legislative they effect act as a vote, by majority no remains initiative doubt county government). branch of the desire; majority of as to what the the citizens unequivocally of the citizens is stat- the voice democracy through of direct
The exercise through ed their exercise direct democra- process is of the most initiative “one process.” precious rights cy. of our democratic Acker, Cal.App.2d
Mervynne v. “facilitat[ing] expressed In addition (1961). Compared rep- Cal.Rptr. with people promoting] [ ] will citizens’ democracy government, direct resentative rights process,”12 anoth and the democratic fully unreservedly implement meant to purpose er [voter] “broad initiative Separation Owen popular Tipps, will. encouragement participatory democra Initiative, 36 and the Powers California cy” provides people practical In- Golden Gate U.L.Rev. participate opportunity to in the democratic deed, although representatives often elected process mat electorate, by acting public policy on the the will reflect directly Allen v. affect them. ters legis- [c]ompared democracy, the to direct (Me.1983). Quinn, 1098, 1102 majority far 459 A.2d seems removed lature preferences. we vote for candidates When Indeed, democracy initiative direct and the exactly difficult to know what we it is often process influence on have had considerable representatives saying. And even if are they public policy, as one of the remain who perfectly mirrored the voted rights proc precious our democratic most them, inequalities representation protect this fundamental ess.13 order prevent practices all sorts of institutional right, required “courts to lib are democratic legislative expressions popular accurate process] and erally [the construe initiative hand, When, are on the other we will. *16 deference,” extraordinarily broad accord single register to our on a asked views Capistrano, 120 Cal. City San Juan issue, result reflects the assertion that the of great 966, (citing majority’s preference 146 Cal.Rptr.3d at 16 App.4th has force. v. Bd. Pala Band Mission Indians of Eule, Direct N. Judicial Review Julian 565, 573-74, Cal.App.4th Supervisors, 54 63 (1990) 1503, 1514 Democracy, 99 Yale L.J. (1997)), “[j]udges Cal.Rptr.2d 148 for while added); Eastlake v. (emphasis City cf. law[,] sponte they not sua apply the do Enters., 668, 678, Inc., City 426 Forest U.S. Equity v. (1976) (“A Coal. Econ. 2358, thwart -wills.” 49 132 96 L.Ed.2d S.Ct. (9th Cir.1997). 692, Wilson, expres 122 ... is far than an F.3d 699 more referendum DuVivier, primaries; through ... creation of direct State Initiatives in elected 12. K.K. Ballot Equation: physi- Preemption workday; legalization Mari- eight-hour A Medical Federal 221, suicide; juana Study, L.Rev. 40 Forest placement Case Wake term limits cian-assisted (2001). officials; 269 adoption and abolishment on elected taxes; poll ... and prohibition; abolishment of policy public issues "Initiatives on various 13. campaign adoption reform." K.K. finance changes brought in the about have fundamental Initiatives, DuVivier, supra, at 294. State Ballot States, including, to: but not limited United vote; gaining right politicians to women 428 Advisory
2.
Initiatives
policy
mandating
desired
without
prohibit
ing
Although
action.
the initiative did not
stated,
As
democracy
direct
serves several
prohibit
mandate or
legislature
from act
important
including
functions
expressing the
ing, it
legislature
nevertheless informed the
people, furthering
will
the democratic
of the citizen’s desire for it “to work towards
process,
providing
citizens
op-
with the
enacting
public’s ‘policy guidance.’
Id.
portunity
directly
legislation
to
enact
on im-
Accordingly, despite
having legal
ef-
portant public issues.
In facilitating these
fect, advisory
significant
initiatives hold
functions,
val-
successful voter initiative
ue;
usurping
“[r]ather than
role
law, modify
create new substantive
existing
legislature,
advisory
in
initiative
fact has
law, may
“advisory
serve as an
initiative.”
potential
to ‘strengthen
legislative
Although
prevalent
not as
as voter initiatives
process’ by providing legislatures
great-
with
that result in
legislation
new substantive
er
public’s
information about
policy pref-
modify
law, advisory
established
initiatives
ensuring
erences and
action in accordance
are enacted to
the will of the
preferences.”
Sawhney,
those
K,
supra, at
affecting
without otherwise
law. See Neil
(quoting
597
DuVivier,
K.K.
The United
Sawhney, Advisory Initiatives As A Cure
States as a Democratic Ideal? Internation-
Democracy?
the Ills
Direct
A Case
al Lessons in
Democracy, 79
Study
166,
Referendum
Montana Initiative
24 Stan.
Temp.
821,
(2006)).
L.Rev.
846
(2013).
Pol’y
589,
L. &
Rev.
590
Conse-
quently,
initiatives,
advisory
in contrast
Challenges
Judicial Review of
typical legislation, acquire
legal
binding
no
Voter Initiatives
merely
effect but
allow
groups
“citizens and
Because of the valued role that voter
place
...
initia-
pressure
legislative
bodies to
tives
system,
hold
our democratic
a court
take a certain
course of action”
demon-
cautiously
should
act
frustrating
before
strating,
through ballot, their wishes.
Jo-
will of
people by
invalidating a law
seph
Zimmerman,
F.
Peo-
Referendum:
passed by
Indeed,
voter initiative.
ini-
voter
ple
Policy
Thus,
Decide Public
13
tiatives
liberally
“must be
construed to facili-
advisory initiatives serve a distinct
role
tate, rather
than to handicap,
people’s
system,
our
particularly
democratic
when
exercise of
sovereign
them
power
legis-
binding legislation may
constitutional,
face
Allen,
late.”
459
A.2d
other, challenges.
Consequently,
protect
preserve
A
example
recent
of a voter initiative illus
will of the
applied
courts have
utility
trates the
initiatives in
principle
established
that a court should “re
binding
situations where a
be found
frain from invalidating more of [a] statute
to be unconstitutional or
otherwise
conflict
necessary,”
Airlines,
than is
Alaska
Inc. v.
with state
Montana voters
Brock,
678, 684,
480 U.S.
107 S.Ct.
94
passed
ballot initiative
the “Prohibition
(discussing
L.Ed.2d
pre
federal
Corporate
Expendi
Contributions and
emption
law),
greater
state
with even
force
Act,”
tures
Montana
thereby
Elections
passed
laws
voter initiative. Rossi v.
establishing a
policy against
corporate
Brown,
688, 38
Cal.4th
Cal.Rptr.2d
campaign
Sawhney, supra,
donations.
(1995);
also,
see
Damon v.
additionally
requested
initiative
(Haw.Terr.1930)
31 Haw.
Tsutsui
congressional
delegation
work
*17
(“A part of a
may
statute
be unconstitutional
overturning
towards
Citizens United v. Fed
and at the same time
the remainder
be
Commission,
eral
310,
Election
558 U.S.
130
constitutional.”);
upheld as
State ex rel. An
876, 175
(2010). Sawhney,
S.Ct.
L.Ed.2d 753
City Cnty. Honolulu,
zai v.
&
99 Hawai'i
of
supra, at 590. The drafters of the Montana
508, 515,
(2002) (“[E]very
429
contains
clearly, positively,
Specifically,
and un
LLEP
an “advi-
uneonstitutionality
Rossi,
Cal.Rptr.2d
sory” provision
implementa-
to
mistakably appeal’s.”
38
forestall
571;
mandatory
363,
provisions
of its
that would
see also Associated
tion
preempted in this case.
Preemptive Challenge to the LLEP
b.
Advisory
starting point
The fundamental
for statuto
incorporated into
The first measure
ry interpretation
language
stat
is the
of the
preclude
conflict
between
itself,
statutory language
ute
and “where the
provisions and state
is an
mandatory
law
unambiguous,
sole
plain
[the court’s]
and
provision.
provision provides
This
advisory
duty
give
plain
is to
effect to its
and obvious
in the event that a court determines that
Ass’n,
meaning.”
Empls.
124
Haw. Gov’t
mandatory provision
within the
(quoting
at 6
Awa
by
byor
may not
initiative
action
be directed
1034).
kuni,
See
and
the State
Constitution
allows,
in
Statutes
the Hawafi Revised
“severability
This is not
situation where
event,
event,
unplanned
by
statu
questions
triggered
are
competent jurisdiction
determines
court
tory
legislature
“the
has
failures” or where
any provision in
section of this
thought
particular
not
situation which
initia-
directed
voter
article
Court,
accordingly
has come before the
then that
action of the
tive
the law
no real
how
had
intention
specific mandatory provision only shall be
it.”
respect
should be construed with
expression
of the will
deemed
Unconstitutionality,
Walsh,
C.
Partial
Kevin
people
provision shall be
(quoting
N.Y.U. L.Rev.
gov-
implemented into law
whichever
Emily
Sherwin,
Re
L.
Rules
Judicial
official
branch or
who has
ernment
(2000),
view,
Legal Theory
it,
implement
that the council
power to
Stern,
Separabil
Separability
Robert L.
power
all
take
actions within
Court,
Supreme
51 Harv.
ity Clauses in the
with those branches
work
(1937)). Rather,
anticipation
L.Rev.
and en-
will
court,
precise
situation before the
request
imple-
courage, support,
expressly
forth
set
the Ordinance
drafters
provisions.
of those
mentation
preclude
conflict
state law
added). By
(emphases
§ preserve major objective of the LLEP
*18
in order to
a
provi-
mandatory
deeming the Ordinance’s
Ordinance.
advisory
14-97(g)
LLEP,
sions to be
when a conflict would
citizens
numerous
exist
otherwise
between state law and the
across
counties
the United States have
Ordinance,
effectively
adopted
becomes
laws similar to
LLEP
within the
nonbinding advisory
Thus,
initiative.
al-
years.
past five
These statements from the
though
solely
was not enacted
as
public
important,
they may
are
serve as
initiative,
advisory
an
capacity
this
precursors
changes
pro
the law14 and
principal objec-
LLEP achieves one of its
opportunity
partici
vide citizens with the
tives,
is,
“express[]
the will of the
pate in
process
the democratic
by enacting
people.”
§
legislation affecting public policy matters
Allen,
directly
affect them.
459 A.2d at
advisory,
When deemed
the LLEP serves
Additionally,
provide
such statements
majority
as a vehicle
enable the
of Hawai'i
public
useful information for
officials as to
convey
County
voters to
to the
Coun-
public
prosecu
sentiment
police,
and allow
public opinion regarding
cil
prioritization
tors,
agencies
policy
other
to set
county.
cannabis enforcement within the
may
public preference.15
coincide with
Specifically,
public
the LLEP serves as a
requesting
county
statement
officials re-
Accordingly, although certain of
prioritize
activities,
police
giving
their
more
mandatory provisions
LLEP’s
would other-
weight
to the enforcement of serious of- wise conflict
with the
and investi-
fenses,
methamphetamine
such as
enforce-
gation
prescribed
of crimes
by Hawai'i state
ment,
prioritizing funding
as well as
of edu-
law, deeming the
conflicting
LLEP’s
provi-
-
cation
§§
and healthcare. LLEP
nonbinding advisory
sions as
pre-
statements
advisory,
-103. Deemed
the LLEP re-
cludes
such
preserving
conflict while
expressed
flects the
will of the citizens of will of the voters.
advisory provisions
Such
County, providing
Coun-
any particular action,
do not mandate
nor
cil
preferences
clear
indication
legislative
bind the executive or
branches to
Sawhney,
of its
supra,
constituents.
at 597.
law;
contrary
thus,
act
to state
when “con-
Through
participation
their
flicting” provisions
in direct de
solely
are deemed to be
mocracy and
advisory
the enactment of
ini
advisory,
preempted
is not
under
tiatives,
message
voters send a clear
to their
prong
the second
of the Richardson test for
representatives
LLEP,
elected
as to what serves the
the reason that the
nonbinding
as a
public
City of Eastlake,
interest.
U.S.
does not conflict with state
678,
431
provisions
application of such
to other
Thus,
applying
“adviso
the Ordinance’s
persons
interpreting mandatory
not be af-
ry”
or circumstances shall
provision
thereby.
provisions
advisory
as
statements
accor
fected
mandate, any
to the LLEP’s clear
dance
added).
(emphasis
14-105
LLEP and
conflict between the
ostensible
aWhen
court determines that a
resolved;
express
pursuant to its
state law is
unconstitutional, prior
a
is
invalidat
law
terms,
mandatory provisions
the Ordinance’s
must
ing
entirety of the
court
advisory provi
nonbinding
are to be deemed
presumption
first start
a
that the en
“with
sions,
express
the voice
retained
is
from
actment
severable
the remainder
Consequently,
County.
citizens of
Gates,
act.”
732
the section or
Hamad v.
invalidated,
not be
Ordinance should
(9th Cir.2013)
990,
cert. de
F.3d
Associated
preempted,
severed.
See
—nied,
2866,
-,
189
134 S.Ct.
U.S.
etc.,
41,
Cal.Rptr.
557
Home Builders
135
rule,
(2014). As
general
L.Ed.2d 810
a
477;
Moore,
1119,
v.
169 F.3d
at
Miller
P.2d
invalidating more
courts are
from
to refrain
(a
Cir.1999)
(8th
of “the
statement
offi
1126
necessary,
“[a]
of a statute than is
because
alone,
“standing
position
cial
of the citizens”
unconstitutionality
ruling of
frustrates
nonbinding
exactly
advisory,
is
the sort of
representatives of
intent
the elected
people and
communication between the
people.” Ayotte v. Planned Parenthood
representatives
permissible,
is
and we
320, 329, 126
N.
546
England,
New
U.S.
S.Ct.
remain in
conclude that
therefore
(2006).
961,
In the erwise, provision can be objectionable competent jurisdiction should court of find sections, parts from the remainder of the statute.” excised or more one Miller, (sever Id.; illegal, any provi- see also F.3d at of this article sections ing part passed constitutional application of a voter this article or the there- sion of po official amendment that established “the any person or circumstance held of to portions of invalid, citizens” from invalid sition the remainder the article Thus, preempts prong. LLEP under the first Richardson under the second Richardson Al- prong. Majority at 970. majority ICA’s conclusion that overruled the though agree misapplied Rich- I the ICA Controlled Substances the Hawai'i Uniformed test, applied the test should have been comprehensive disclos- ardson scheme Act is in the as the corrective ing implied be exclusive first instance intent to throughout eliminate ostensible conflict. state and thus uniform *20 amendment, holding the section “To the that “stand extent allowed” alone, ing exactly advisory, is sort of the preceding While the two sections the nonbinding peo communication the between potential LLEP the for conflict address be- ple representatives permis them that is any provisions tween of the Ordinance’s sible, we conclude that it therefore law, additionally state the Ordinance contains Cenarrusa, v. effect”); Simpson remain in provision 14-100, in section entitled “Coun- 130 Idaho 944 P.2d 1376-77 ty prosecuting attorneys,” prevents such (holding that although part of a voter initia occurring conflict from in first instance. the unconstitutional, tive was the initiative’s non provides following: Section 14-100 the binding, advisory component was severable County prosecuting Section 14-100. at- Kimble, intact); and could remain torneys. cf. (finding U.S. at “no consti S.Ct. To extent the full allowed the Consti- nonbinding, advisory tutional obstacle to a Hawai‘i, people, tution of the State the referendum”). request through county government, county prosecuting the attor- neither preceding section, As in discussed the the ney any attorney prosecuting nor on behalf effectively precludes Ordinance conflict be- prosecute any violations mandatory provisions tween its and state law chapter the sections 712-1240 the by deeming mandatory provision to be regarding pos- Hawai'i Revised Statutes nonbinding advisory. advisory Retained as a session or cultivation of cannabis a man- law, effectively the Ordinance achieves one ner with inconsistent the Lowest Law En- primary objectives express of the law—to Priority, forcement as described section County by the will of the citizens of Hawai'i article; 14-99 of 14-98 and this cases providing with officials an ex- possessed grown where amount is pressed people’s statement desired twenty plants less than four the dried policy public of significant on matter con- equivalent, possession personal for adult Accordingly, eliminating cern. after the con- presumed. use shall be Tsutsui, flict, law “must be sustained.” added). (emphases 14-100 at 31 Haw. The drafters of the LLEP and the voters potential appear Although recognized provision conflict between have directly prosecutor’s effectively the LLEP and state law is circumscribes the elimi- ability prosecute under the deeming mandatory provisions offenses nated its Ordi- purview—i.e., possession nance’s and cultiva- to be statements twenty-four plants tion up cannabis people, will of additionally Ordinance aged twenty-one older—may adults con- provides provision that a that is nevertheless flict with Accordingly, the state constitution. severed, leaving in conflict the rest of provision this expressly was drafted as a the LLEP intact. “request” implemented to be words, In if conflict exists other be- only to the extent allowable the Ha- LLEP and deeming tween the state law after By provision’s waii Constitution. ex- advisory, voters who enact- press terms, people’s request where the is conflicting ed the LLEP intended that constitution, not in with the it accordance provision be severed from the rest of the legal expressly without effect. limiting affecting remaining provi- without application of section 14-100 to the ex- Consequently, although potential sions. con- constitution, tent with consistent the state flict between the Ordinance and state law is effectively pre- this section of Ordinance by deeming mandatory eliminated direc- vents conflict between its tory provisions “advisory,” to be the “sever- Additionally, the constitution. because this ability” provision provides an additional basis provision mandate, prohibit, nor does conflict, thus, preclud- resolve further requests, instead not conflict does ing entirety the conclusion that of the with the constitution and thus is preempted invalid. does not need to rendered Thus, Finally, legislation local an area enters advisory or addition to severed. “fully occupied” by general provisions, sec- “advisory” and “severance” Legislature mani- precludes potential expressly also has tion 14-100 when area, “fully occupy” confiict its intent to fested impliedly it has done so.... when Preemption Improperly Invoked IY. Richardson, to Invalidate v. (quoting Co. Sherwin-Williams *21 893, 4 16 City Angeles, Los Cal.4th Cal. majority the is concludes Ordinance (em (Cal.1993)) 215, 844 534 Rptr.2d P.2d preempted second Richardson under the original). principles phases in These were LLEP, prong even when deemed the because subsequently applied and further clarified governing advisory, with state law conflicts court International Services this Pacific alleged investigation prosecution of the 209, 215, Hurip, P.2d Corp. v. Hawai'i 873 76 Majori- Penal violations Code. 88, 94 426-27, 430, at ty P.3d 972. at 353 advisory, However, when deemed Hurip, applied principles In this court require prohibit action but mere- does not within the elucidated Sherwin-Williams ly expression as an serves preemption test Richardson determine thus, not conflict with state does preempted a was whether ordinance Nevertheless, to the extent that evaluating by state law.18 In whether provision within LLEP is found to con- and was ordinance conflicted with state law law, expressly flict with state the Ordinance preempted Richard thus under the second provides conflicting that the prong, this court noted that a conflict son rest of the LLEP severed and that the be inimical to a exists when an ordinance is shall remain effect. explained law and that an “ordinance is state ‘prohib to’ a ‘inimical state statute when it Richardson, court In this described the or com what statute commands it[s] preemption” of “general principles governing prohibits.’” Id. [the what mand[s] statute] legislation local as follows: 9, (quoting 215 n. at 94 n. 9 at 873 P.2d legislation conflicts If otherwise valid local Sherwin-Williams, 902, 4 at 16 Cal. Cal.4th law, preempted by law state it is such 215, 534); Resort Rptr.2d 844 P.2d Waikiki and is void. Honolulu, Hotel, City Cnty. v. Inc. & (1981) (“A 1353, 1366 Haw. 624 P.2d legislation if the local du A conflict exists an con to determine whether ordinance test plicates, contradicts, fully or enters an area prohibits is it flicts with statute whether occupied by general law, expressly either permits permits the statute what what by legislative implication.[17] Hurip, court con prohibits.”). In statute “duplicative” legislation general Local is that the was “not ‘contra cluded ordinance it is therewith. law when coextensive dictory’ there [state law] or ‘inimical’to preempted on that it not the basis [was] fore Similarly, is legislation local “contradicto- Hurip, Ha inimical in conflict See general when it is is therewith.” law ry” 219, 873 at 98. at P.2d wai'i thereto.... two-prong preemption jurisdiction, "enters under the an ordinance that law Richardson
17.
In this
fully
by general
may
occupied
law”
court first
an area
at
at 94. The
test. Id.
873 P.2d
prong
preempted under
first
of the Richard-
although the
law at issue
concluded that
state
test,
applies
"covers
if an ordinance
son
"uniform," it
not intend-
was
was intended to be
a com-
matter embraced within
the same
state,
throughout
ed to be "exclusive"
disclosing
prehensive
scheme
"fully occupy”
pertinent area
it did not
thus
implied
to be
intent
exclusive
Consequent-
at
Id. at
95.
of law.
Richardson,
throughout
uniform
the state.”
was
ly,
court
ordinance
concluded
1209.
868 P.2d at
prong
Rich-
preempted
the first
not
test.
at 97.
ardson
Id.
Hurip,
a Hon-
this court evaluated whether
was
Revised ordinance
olulu
Accordingly,
“general principles
implementation by
is
nanee]
under the
amenable
misapprehends
preemption”
operation
forth in
set
Sherwin- Defendants”
at-,
provision. Majority
Williams
discussed
this court
353 P.3d at
Hurip,
Giving
advisory provision
Richardson and
conflict between
effect
(1)
dependent upon
the LLEP and state law
occur if
is not
whether the mandato-
duplicates
ry provisions
imple-
or is
coextensive with state
the Ordinance
mented, rather,
mandatory
law or
the LLEP is
to state
mimical
because the
prohibits
provisions may
implemented
because the
what
stat-
not be
advisory provision
ute commands or commands
LLEP is
what
statute
invoked
prohibits.
operative. Accordingly,
and becomes
be-
LLEP,
advisory,
cause the
when deemed
Here,
advisory,
when deemed
the LLEP’s
inimical
coextensive or
to state
provisions are not
with the Ha-
coextensive
majority’s application of
preemption
doc-
wai'i Penal Code or the Hawai'i Uniformed
trine
the LLEP is
invalidate
incorrect.
Act.
Controlled Substances
Whereas the Pe-
nal Code and Uniformed Controlled Sub-
*22
assuming
provision
Even
that a
offenses,
stances Act establish criminal
the
LLEP is
conflict
found
with state law
LLEP
not
nor does it
does
establish offenses
advisory provision
given effect,
after the
is
negate
prescribed by
In-
those
state law.
expressly provides
the Ordinance
that
the
stead,
LLEP,
advisory, express-
the
deemed
offending provision is to
from
be severed
the
people’s
es the
desire
how their
§
LLEP. LLEP
14-105. The inclusion of a
government prioritizes
the enforcement
severability
presumption
clause establishes a
category
of offenses established
state law.
objectionable provision
that “the
can be ex
reasons,
provisions,
For
the
these
LLEP’s
from
cised
the remainder of the statute.”
advisory,
prohibit
when
do not
what the Ha-
Airlines, Inc.,
Alaska
480
at
U.S.
107
wai'i
Penal Code
Uniformed Controlled
1476;
Matosantos,
see also
135
S.Ct.
Cal.
commands,
Act
Substance
nor commands
607; Miller,
Rptr.3d
Further,
Simpson
“advisory” provision
v.
at
the
does not
P.2d
require
(holding
although part
the
to fix
of voter
defendants
or correct the
initia
Ordinance,
unconstitutional,
application
nor
the
was
does
the
tive
the initiative’s non
“advisory” provision
binding, advisory component
render
Ordinance’s
was severable
intact).
provisions
Instead,
Accordingly,
adviso-
“enforceable.”
as
and could remain
even
statements,
ry
concludes,
provisions
assuming,
majority
are
Ordinance’s
as the
that the
implemented
binding
advisory
acquire
provision
merely
neither
nor
le-
not
advisory”
“is
Thus,
gal
majority’s
mandatory language,
effect.
conclusion
because
contains
ma
430-31,
“advisory” provision may
jority
972-73,
be
at
353 P.3d at
given
part
offending
may
effect because “no
the Ordi-
[of
clauses19
without
severed
majority
430-31,
advisory pro-
provisions.” Majority
19. concludes that the
tion of those
at
merely advisory”
pro-
However,
vision is "not
grammatical
because
ingly,
“mandatory5’
to the extent
that
the
cautiously
A court
act
when review-
should
advisory
in
provision
clauses
the
are “confus
challenge.
ing a facial constitutional
See
ing,” the
role
ambi
court’s
is to resolve the
Wilson,
protect
122
the
F.3d at
To
will
by examining
in
guity
the
the context which
people,
be
the
voter initiatives “must
lib-
ambiguity
meaning.
to
is found
ascertain
facilitate,
erally
than
construed to
rather
to
133, 165
Awakuni, 115
See
Hawai'i at
handicap,
people’s
the
exercise
their sover-
Consequently, any potential
confusion
Allen,
eign power
legislate.”
to
459
A.2d
provision
of the LLEP
should be re
Thus,
court
from
should “refrain
by
interpretation
court’s
solved
this
invalidating
statute than is neces-
[a]
more
ambiguous
Here,
assuming
clauses.
even
Airlines,
Inc.,
sary.”
480 U.S. at
Alaska
advisory provision
in the
are am
the clause's
especially
This
true
flict state law the will of the between do not Rossi, upheld. impose binding obligations upon the Ordinance should be See duties or (the Cal.Rptr.2d but, rather, P.2d at 571 law any parties 889 policy as serve broad upheld “must [its] be unless unconstitutional result, As statements. the LLEP remains unmistakably ap ity clearly, positively, and people’s as an statement of will pears”); see also Home Builders Associated clearly preference reflects their on a (“It etc., Cal.Rptr. has P.2d at issue, single and thus the LLEP retains an judicial apply long policy our a liberal been important purpose. Accordingly, utilitarian power [the initiative] construction wherev although provisions of the LLEP certain os- challenged right er it is order tensibly county law, conflict with state If improperly doubts can rea annulled. proper invalidation is neither nor necessary sonably of this be resolved favor use specifically provides where the Ordinance (quot power, preserve reserve courts will it.” preserve corrective measures that one of the ing Mervynne, Cal.App.2d 11 Cal. primary LLEP’s objectives—expressing the (alteration 340) omitted)). Rptr. people. will of the Specifically, through application of Accordingly, I all mandatory conclude “advisory” provision, Ordinance’s provisions that would conflict otherwise with mandatory provisions longer LLEP’s no con- state law should be construed be adviso- governing investiga- flict state with law ry.20 majority To the extent con- tion forth in of offenses set cludes that non-advisory clause conflicts Penal Code and the Uniform law, majority with state should sever the Indeed, Controlled Substances Act. it would clause, offending rather than invalidate conceive of situation difficult where Thus, entirety of I the LLEP.21 would affirm solely advisory an initiative to be deemed judgment appeal, ICA’s which af- found to conflict with would be judgment, firmed the circuit court’s but for nature, very re- them initiatives the reasons stated herein.22 Sawhney, quire supra, no action. at 592. Moreover, expressly provides the Ordinance any remaining provision that conflicts be severed
Ordinance, leaving the remainder intact. the LLEP’s are
When deemed nonbinding advisory
to be statements ex- 14-104, following provisions 20.The that would If the otherwise two clauses in Section "Statu- conflict state law should be tory deemed adviso- interpretation,” and constitutional contend- ry nonbinding expressing statements the will by majority mandatory ambiguous ed to be 14-99, the voters: Section "Lowest law enforce- advisory provi- are sion, from the severed rest of the priority policy relating person- ment to the adult Section 14-104 would read follows: cannabis"; 14-101, "Expendi- al use of Section only All in this article shall be im- enforcement”; ture of for cannabis funds Section plemented to the full extent Constitu- 14-102, and, oversight”; "Community Section tion of the State of Hawai'i and the Hawai'i 14-103, local, state, "Notification of and federal allows, event, in the Revised Statutes officials." event, competent that a court additionally It should noted that the follow jurisdiction any provision determines that directives, ing mandatory do sections not contain section this article not be directed advisory: and thus do not need to be deemed voter initiative or action 14-96, 14-97, "Purpose”; Section Section specific mandatory provision only then that 14-98, "Definitions”; "Findings”; Section Sec advisory expression 14-100, deemed "County prosecuting attorneys”; tion people. will 14-105, See, and, "Severability.” e.g., Bd., Poe v. Hawai'i Labor Relations 97 Hawai'i mandatory provisions the LLEP (2002)(state- Because severed, advisory plaintiffs’ should be deemed findings ments within a statute's “Statement of injunctive punitive damages policy” impose binding claims for relief for section "do not duties”; they "provide compensation and for reasonable would nevertheless have no useful legal guide determining legislative pur provi- intent basis because the or severed pose”). require sions would no action the defendants.