EFTA01246450

NO. 23838 IN THE INTERMEDIATE COURT OF APPEALS Oi DNB STATE OF HAWAII and , Petitioners-Appellees, v. TON DONNAN, Respondent-Appellant APPEAL FROM T118 DISTRICT COURT OF TIM FIRST CIRCjIT, HONOLULU DIVISION • (CIVIL NO. 1DSS 0C-1035) MEMORANDON OPINION (Sy: Watanabe, Acting C.J., Lim and Foley, JJ.) Respondent-Appellant Tom Donnan (Donnan) appeals fret an Order Granting Petition for injunction Against Harassment (the Injunction)/ granted to Petitioners-•Appellees vTDe Injunition was granted pursuant to %avail Revised Statuses 5 604-10.5 retpp. 20011, which provides, is relevant part: Sand-20.5 Women to enjoin and temporarily restrain harassment. (a) :or :ho purposes of this sortion: •Course of conduce• means a pattern cf conduct composed of a stiles of arta over any period of tine Weltering a continuity of porpnan. "Norevameot" means: . . 121 na Intonticocl Or kAtalag course of canines C' erred at an individual that seriously alerts or raaturba consistently or coot"eua1:1• bat Lwra she inn lv ldww1, end thee serve, no legitimate sarpuoet providod such course et Conduut would carte a reasonable person to puffer enotinnal dt ibl The Oil:aria,- ccut..2 &hal: have power to thanin nr prohibit or tempo-erity rrrrrr in Tarasinatant. (CI Any person who ads beep sibjocita to nazaaanent nay petitien the distsle.i coatl uL Lhe d:strict In ttich the pazirioner resides for a temporary taarralning arder and an injunction from farther harassment. Id) A petition for relief loon h r r rrr meet shall. be It writing and shill allege that a pas: set ox act, of harassment may have *eta:red. or that throats of harassment make it probable that (continued...) d << XVJ Z£M11 91-80-LOOE -000003 3501.125-001 CONFIDENTIAL Page 1 of 14 EFTA_00064879 EFTA01246450 ( ) and ) by the District Court or the First eiecult, Honolulu Division' (tint district court), on . September 2O, 2000. On appeal, Dorman contends that: (1) because the wetter arises from a real estate dispute, the district court lacks jurisdiction; (2) the Injunction unlawrully prohibits constitutionally pro:acted activity; (31 the district court erred when it denied Donnan's Objections to Video Document and Objections Lo Declaration of Petitioners; and (4) the district acts ut haramseens may be iiw.00tt; sag obeli be isoorassan'ed by en afridavat naafi under oath Dr aka-Rtant made andet penally al perjury stating the specific fac:s sod circumstances from w+•.cn seller is sought. (e) Upon petllion to a district court under this section. she court nay temporarily restrain tee person or persons ranee In she petition from harassing the petitioner upon a determination that there 33 probable cause tc believe that a pear act or acts De harassment have occurred or chat a threat or threats or be/ailment ray be imeinent. The court say issue an ox parrs temporary rest-alning order either in writing cr orally; p!ovidod :Lan era: riders shell he reduced to writing by the close ol the near :snort day folloolop oral issuance. (#) A temporary nett:doing order that 's granted uodor this umutton remain In *free: at the discretion of onn antit nor a period cut to exceed ninety days from tho date the eider :a greeted. A bearing up %es petition to ebTOln raresemenc shall be laid within fifteen days after tae tfflop, cary ***t**ititg order lt grunted. Tn eta event that service cL the temporary rentreininq order hos oat beer Wetted befote the dote or henzinu on Ilmt petition It enjoin., the snort may set a rev dote for the bearing: pxovidod that .ho new daze aholl sot exceed •one;y days from rho date the tirepority scOtrainIns Order secs granted. The car:les raned it the potltion may ;lie or give smut tCLIMAugis explaining, excusing, iusemifyitag, er denying the alleged ark. as Act* el harassment. The cosy. 4VVOiVU all evidence that is relevant s; the hearing, and nay make ichlepetdent inodiry. . . . . (I) Nothing in this secrion shall he construed to prohibit cone:itatlonaily protected activity. Vlbe Honorable Barbara Y. tticheadoon presided. 2 £ d << XVi f2:11, 91-90-DOZ -000004 3501.125-001 CONFIDENTIAL Page 2 of 14 EFTA_00064880 EFTA01246451 court denicd Deanen due process of law and egnal protectior of the lawtn vloist3On of the CourteentS amer:duett of the :bile° States Conatitntion and article I, section SI of the Hawaii,. Constitution. I. BACKGROUND And Med an Anended Petition for Rx Patte PeePetaty Rec‘rasnLcy °telen' and Lor Injruction Against Hmeanneent (the. Petition) in the diatzicl court on August 24, 2000. On the Yta and wcote the followitg decf.aratlon detailing tue alleged harasament: Sinte tek,Lnq onnetts.4.- ai the hoste borde:ing Hr. Connan's boulv, ee have bad numorcue tron enverai city and county dopar:nonet responding to renpleintn tros P.r. idounan] 6 . Se, [eiet benans Sweigiy, tiniding inepecsore. tire Oa94.7hanhp 04Pt. 0 = band Otiliestkon, Sevet Der., ete., vith note finning any fant er vrong action. Alter toklag of/notable. Ve Sed cc enet Deonen'e teiste'. SCJiret nellieon duo co noe-psynent et :vor. for & non:hs. A!ses vinning eks eocrt gote Ot Ag:. 16t . bonnen c all hit Stiene!» 6 !vonet. on ble yard, stare, skaking 'olster. smeist i thrtitela.,a9 co ments :tsarlo end lobett, 'hick ve zlheerde4 ar video. The)! .tid CheY ve on_y )(tat Nevus, ka:esc:au us. and vt havenet **sn tnytniny yot. Atter sorvOyIng ene propercY line. we bosted 'DO crespessleg' signe on nelrenn'e eie. ot on: P:OP0rLY. Tki0 Upi*' tann very uren eiter trav bed lito LaUtiOn part Ot On, propmsty bwougad to item. /hes! :ore off eke signe £ Ulver Uken la okt yatd. Osvelly the one ho iriv..igatt tuk' ‘tlawa.t2 is øsnpie's innediu&.:ylend nelpemien. Corcy. We feer toe cha vitecy o' 00000, a youno eamuzs obo nonnen & Nis lia0v. U00 10, arr. 2. $ 3 (ler3). proeL6to: DUE PROCESS AND Eigna PROTECTION Section 5. go person ',ben bo deprived sø :!ia, litorcy or preperty vithou: due process ct :ev, nor oe deniad the sovel precectien e4 too kava, not be denied the eapleyion: of tre secssn's civil rights or be dIscriminated senitet in the oxerclsr Ulmet sesam cd race. religion, sex or ancestry. 3 yd << XV3 ££:11 91-80-LOOZ -000005 3501.125-001 CONFIDENTIAL Page 3 of 14 EFTA_00064881 EFTA01246452 friends try c Sutisidare. "hay celled her "Bitch" and aiuo weds numerouw racial slur; :nyinv na oat liken e6, had to ea back acress the corder. in addition to ell thin, ovuzy lixo tie Lowe.: the heave LC 10 to the beam, snide t enaaaael tic) comment, are made by Connun a friends tevard lionsati 4 their dogs. On August 24, 2000, a temporary restraining order was entered by the district court against Donnan and Donnan was notified that a hearing on the petition would be held on September. 6, 2000, at 8:30 a.m. Or. September 1, 2000, Donnan Cited a Motion for Order Declaring Tempo/Ley Restraining Order Null and Void, Dissolving Same and to Dismiss Petition and for Reasonable Attorney's Fees and Costs (Motion Declaring SRO Null and Void).. Donnan's motion slated List the Petition was frivolous, the district court lacked jurisdiction over a real property dispute, and the restraining order denied him his protected constitutional rights. Donnan's motion came for hearing ca September 6, 2000, and was denied.' A hearing on the Petition was he:icl September 20, 2000, at which the following evidence was adduced. testified that he had purchased a duplex next door to Donnan's property. In order to settle s property line dispute witn OC,rinan, paid for an official survey of his property to satisfy Dorman. .DO011o found Ma that he had more liThe Honareble FkOndo A. alsbleaiii resided. 4 5d << XVJ ££%LL 9L-90-2002 1-000006 3501.125-001 CONFIDENTIAL Page 4 of 14 EFFA_00064882 EFTA01246453 yard than he originally thought he owned. During June and Jaly of 2030, Coolio was visited by the police department, a building inspector, the Sunset Beach Fire Department, an inspector from the Department of Land Oti1ization, and the health department. The visits were made in response to telephone calls from Doncan's residence. Ho violations were found by any of these entities. There were approximately 12 people residing on Donnan's property. On Juno 19, 2000, was given access to clean out tne possessions of 'eism Hallison Ulallison), who had been evicted in April from the adjoining halt of duplex. Cceilo had been awarded 8803 from mallison for payment of hark rent after.a summary poasesa;on beeritic on Auguijt. 15, 2000. Mallison was a friend of Donnan. Three hours after the August 16, 2300, hearing, Coen° videotaped Donnan and his guests arguing with across the property line. Men of the speech on L're videotape was transcribed as indiscernible. Donner objected to the admission of the videntape en the basis that the tape was edited and was an invasion of Donnan's privacy. The district court overruled the objection and allowed one minute of the videotape to he played, stating: the inirtions the: are :mine nova to the Covet axe unadirec, o- oflspitced and flax' the trance peracn way one of the petitionera, non the petitioner vas taking the video frog the petitLenerla ova property, end the subject ne the video was n part Hr. Donnan. 5 9d XVJ Wit 9L-80-2002 1-000007 3501.125-001 CONFIDENTIAL Page 5 of 14 EFTA_00064883 EFTA01246454 the cm= finds Cis: tha ovEdimult will klo adaLttsd as bt arg ana the Court overculmu the ofjoctier. After viewing the videotape, Donnan again objected on the ground that there was no harassment shown by Donnan on the videotape. The district court did not find the videotape was that instructive with respect to any acts cf harassment and allowed !tithes testimony, testified that when ho ana weil:ced out to the beech, Dunne° and his guests would yell vulgarities aud racial slurs at and make obscene gestures towards Coeilo and believed the animost-r.y stemmed from an official survey that added to Coello's property end thu eviction of Donnan's friend from property. testified that Donnan had verbally harassed her by yelling racial slurs at her and had threatened future harassment. Donnan called Samson cantos (Santos), an investigator foc Lne Hawaiian Humane Society, as the only defense witness. Santos testified that two complaints had teen made against Coellu for violations of the leash law. Only one of the complaints had been made by Donnan. Santos visited three times and round no violations, so the ease had been closed. SL/L d << XVJ ££:ll 9L-80-LOOZ -000008 3501.125-001 CONFIDENTIAL Page 6 of 14 EFTA_00064884 EFTA01246455 At the close at evidence, Donnan moved to dismiss the complaint on the basis of insufficient evidence and lack Cl jurisdiction over a real property dispute. The district court denied Donnan's motion and granted the Injunction for a period of three years. The district court fleeted; VPR COURT: Alright. the Court does find by dent and convincing evidence that the seepoadent, Mr. COAAAI. has incenstanolly or knovingly conducted Myself :outrun the petitionert in a Manner entre sorleusly alarms or disru-ha them by conaiexect_y o/ continually anaeLing the individuate With loop/tints 'AA building lauptetere, Pre doper: art, .and a:I:in:ion, add sewage dapartavata, eetee4. .befeby attrb is serving nn legit1N4L0 Variative alter than co Outwit tile petitioners, and -het it caused (Le Petitioners re math: J00%141101 dtstreon and reasousb:y 40. therefore, the COOtt is goings to grant the ntaer Of tujunutioi v0:01aing Doauen tot a period ol lazes ynt.rn tree :urn= harassment 21 the peti".! .. . . . . And uiZb icePtC: CO yrest motiOn if it in 4 dollen, leelemsa Counsoli, tc cliaxAsS en tSe hasia that ibis in 4 feel property disputa, the Court !Lads that the merlon is going to be denied. this i4 ft matte: of taaaaameat uhtch the district cou:c bee chit power to en,oic and which the Court is going Co eajo'.1 at Chit clot. With respect ta any property disputes, that does belong in circuit court and :he Court is not by this order preventive the respondent from filing a legitimate Aeiien with respvat CO a dispute et a v-cpexty !LAO it r2te cOurte cosy. The Order Granting Petition for injunction Against Harassment mass filed September 20, 2000. Dorman tiled his `trice Of Appeal on October :e, 2000. ' II. STANDARDS OF REVIEW A. Interpretation of a Statute rho JhrerprOtatiOn of a u:slatt in a quos.lan of tun reviexable de novo. When corstruire c statute, cur forenost Obligation is to ascertain and give affect to the • 7 Stied << Mid ££:ll 91.-80-L002 fl i-oommos 3501.125-001 CONFIDENTIAL Page 7 of 14 EFTA_00064885 EFTA01246456 .ntenricon of the :opiolatmtv. white Is LO no obtoloted prinatily item] lto languege containen in tho s...truts Staalt. And we ayst rouw n-atotary 'angeage In sin oontont el lbo entlre otarnto and nonotzow it le * menner tomploidne vit its porpeso. Ka Prn'aka' O Ka'aina vs...LAP:1 OSe Conmin 94 meuari 31, 41, 7 P.3d 1068, 1078 (2000) (internal qUotation marks and ei's:J.Ons oditted) lentoting :Musatkoldsj0un, 90 Hawari 152, 160, 977 9.2a 160, 168 (1999)). B. Adoisaibility of Evidanoo (0)1froxont szandsrds of review »nut be assiica in tritt ~art dar:steen renkning th* admisslh!"ty af orsdenCe. dftsmodia9 on the telMireson:s of tee particulet zul» of culdocc• at *** * . net application *2 e parztentat Iminentiery rolo car y'ald oely ene correct rissole, rh% propos acandard ent appen a te twacts is tbr -int/snep atundord• . Waske the eviten.1441 l,.:1411 J< 'SAUS concern: 043td »pop Tolovance, under 3~1'1 Wirtigntin;itY . Rum*. ot Evideouw Ine.) Unica 4:1 and 4C2, th* prOpat atondird of 4004:late ceelew is the right/tcong et•ndard. . arleentlary deeisions oenen on BES ass 403, winch regelt* a "ludnent cel)" on th* part of the tata' cours. are reyiewed lor ss ~ns o2 <nameten. Tb* trea' cour; abusos its discretlon %Men St cluorly excoods cie hoonde of manen or disresards tules o: nrtncle'sa of lov or pinetite te tbc anbuzoolial dotrIzonc 00 A party lidgeut. 'eani .arlcE :. gosnlSyu, 85 Hawaid 336, 350-51, 944 P.2d 1279, 1293-90 (194/1 (quoting State v. hrneo, 84 Hawaii 1, 928 P.2d 943, 853 (1996)1 '(sitationa and brackeLs omlaad). C. Danial of Equal Protestion and Dué Proceee ";tihero) no oondamental righto or suspect clitealfloations are Luvolven, tha rationet basis standard is 8 St/6d << XV3 h£41 91-20-2O02 -000010 3501.125-001 CONFIDENTIAL Page 8 of 14 EFTA_00064886 EFTA01246457 used. Only if thoro 4a no rat/otal basis to suetsin the challenged sratutes vill trere bo a violation of due process under D.S. Coast. anvend. XIV SIW Rd.W. Coast. art. i, S 5." Vashinaton v. Firerran's Fund Tns. egmpanies, 68 2aw. 192, 202, 708 E.2d 129, 136 (1985) (citation omitted). 40 recogndre that, lutlagd tuaddrtmoltil rågata y- raapect clodaltleulloss sed Int:tcated, va vill apply lh2 ractonal hasta ****A*rd cl xccicc in osamin109 t Ant-al et emtal pc.cLuttiot elala. und,- 71.'34 standard. to proaal:. a party dhallOrsOng tita nonnrItutivnuil.r ot a statutory clears/tldativn oo onual itedidtritr gronton hba tha bingon ot annwingt, wIta ud:tt:lucia.; elarity that the eleanizientInt Ye not rwtionalay tclated to tie stam:hm:y ~åma*, 02 sim tte ekuneoved etaatatIcasion Gess net rest une hutt 920000 år difSertnee brits9 0 Ni, erd aubatanthål tolatioh 00 rhn obfect c! the 1094 als,tön, and la linteCtOrd 00: arbitt.ary and ett-Ideala. ;anar Beach Detense Fluid v. City Counc41 70 Ram. 361, 380, 973 Y.2d 250, 267 (1989) (citation omitted). III. DIFICOSSION A. JUriediction Donnan contends that Hawaii Revised Statutea (HR5) 5 601-5(d) precludos the dIstrict tourt from taking jurisdiction over issues of- real propc'ety owearshåp. Section 604-S(d) (Sup?. 2701) st.ates that "(t)he district coarts shagl not have cognizance of real actions, nor actions in vhich the tillo lo real estate comes in quastionEd^ The statute grans ng jurisdiction Ln the instant case is NBC 604-10.5(b) (Suop. 2001), which vests the district 9 51/0t d << xvi h2:1I 91-80-1002 -000011 3501.125-001 CONFIDENTIAL Page 9 of 14 EFTA_00064887 EFTA01246458 courtA with the "power to enjoin or prohibit or temporarily restrain hararsmeat." Furthermore, at the September E, 2000, hearing en the Motion Declaring TRO Null and void, the district court stated the following: THE CeURE: The Cour: is tot, mks Court is not :oohing at boundary dtspntes. The court Otte sot have jurisdiction. I lth you, lestenue COMSO.i. it terns sT ostimminine quiet title action:, ur IC limit's ownership in dispose, act io 100k:k2 at Cho TKO petition, therleu foil! parriculsr ',cotenants vn'th hays barn mode 4y cwt SOtItinesrs, i.e.. that DODDW. it's alleged Lahr Dconan and all kit f-inglia and rOnnote in t's yard ncasted sokitg vulgar, rental and throatenin; comma-AR twined peatlonors which was Into) recoreen on video. They saga they've only just begun harassing us nits ew haven't *con enythtto yet. This.'0 enougt to have .ratted the Thal.) The district court had jurisdiction over the Petition. B. Constitutionally Protected Activity Donnan's second point states: ERS S ses-it.sli) 'calcites the District coin from stlecting out a vietie of crime and preventing his, wader taco threat of ccotoept, from celting the honclolo Pollee Dtparineut, or the UUMane Society sr *tees anttorities, when he is a victim of criminal voodoo'. Ot. se °nerves violaticna of law. Section 604-10-5(i) provides that "(n:ol.hing in taio section shall be construed to prohibit constitutionally protected activity." The injunction does not prevent Dorman from calling on Public Safety authorities ".cben he is a victim or criminal cornicet or he observes vielstions of law." The Injunction, on its face, prevents Donnan from: 10 SI/Li d << h£:Ll 91,-90-L002 - CONFIDENTIAL 3501.125-001 Page 10 of 14 EFTA_00064888 EFTA01246459 A. Contacting. :fres:nima or shy:Litany harassing Pent...inner(a). wenaL4CLing° is (Wined to In.:laic kn.. 1: not ligetZed co Phe telt:once°. Mail. foceimilor vagec. 10.Oceet. etc. D. Contacting, titrestsalag Cr tarssssns any Dorgan(*) s).i:e residing at getiticncr(sII reeinence. C. reneging eadfor visiting the Sfee.tess of the Potlzionee(a), rsifdrice and/sr the place of the retitionerlels enploydent. Dorman was not enjoined from constitutionally protected activity. C. Admission of the Videotape into Evidence Donnan contends the district court erred when it refused to suppress the videotape. Denten argues,"[t]he video and the petition were acts of hate crimes and acts of revenge sna retaliation against Duman and his tenant and friend because they had mellowed the law and reported criminal violations thereof." Hawaii Revised Statutes S 604-1.1.5(f) states that "[t]he court shall receive all evidence that is relevant at the hearing, and may make independent inquiry." The district court admitted the videotape, stating "[tyre Court finds thit the evidence will be admithee es being relevant, and the Court overrules the objection." The videotape showed interacting with Donnan end Donnan's guests and was, thertrore, relevant. However, the district court did not find the videotape was "thaL instructive with regard to any acts or harassmentf. l" the district court found clear and convincing evidence of harassment based on the 11 SL/21 d XYd h£V11 91-90-200? -— -000013 3501.125-001 CONFIDENTIAL Page 11 of 14 EFTA_00064889 EFTA01246460 testimony of the witnesses and other evideree received, and not solely on the videotape. if..he district court was-correct in admitting one minute of videotape as relevant to the allegations of harassment. D. Eqmal Protection and Due Process of Law Carman contenda ho was denied the right to defend himself because he was "prohibited from filing any defensive response, including any counterclaim that would establish his right to a restraining order, damages, proof of ownership by wily of adverac possession, a trig) by jury and the right to have this case determined in a Court of competent jurisdiction, namely, the First Circuit Court." Dorman cites Ramil v. ge:ler, 69 Haw. 608, 126 P.2d 254 (1986), and Hovey v. Elliott, 16/ O.S. 409, 17 S. Ct. 841 (1847), in support of his argument. In RaiMiA, the Supreme Court of Hawail upheld litigation-endinv sanctions after the defendants refused to comply with discovery orders. 68 Haw. au 621, 726 1.7d at 263. In Hovey, the United States Supreme cc:Art found denial of due process of law, statimg "(a) sentence of a cotrt pronounced against a party without hearing him, or giving h!.m an opportunity to he hoard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal." :67 U.S. at 414, 17 S. Ct. at 845 (interval quotation marks omitted). 12 Sll£l d << Xtld h£Vll 9I-90-1.00Z -000014 3501.1254)01 CONFIDENTIAL Page 12 of 14 EFTA_00064890 EFTA01246461 in contrast, Donnnn was given the opportunity to be heard. Donnan was not allowed a counterclaim, but was not denied the opportunity to file en adverse possession claim in circuit court. Donnan contends he was denied the right to a jury trial. The right to a jury trial in civil eases guaranteed by the United States Constitution applies to federal, not state, courts. 0.S. Const. amend VII. Trial, by jury in civil caseo is guaranteed by the state constitution only whore the value in controversy exceihis rive thousand dollars. Haw. Conal. arm. I, $ 13. o and sought no monetary deranges .n this case; therefore, the value in controversy did not exceed five thousand dollars. Furthermore, HRS j$ 04-10.5 does not provide for trial by jury. Donnan contends he vas denied the right to subpoena records by way of deposition and written interrogatories; however, the district court granted a two-weeX continuance to allow Doman to produce the city and county agency records by subpoena duces tecum. Furthermore, as the district court advised Dorman, a hearing on a petLtion to enjoin harassment may not be held later than ninety days after the dace the temporary restraining order is granted. 1183 % 604-10.5(fl. 13 Stitt d << XVI h£:ii 91-9O-LOOZ -000015 3501.125-001 CONFIDENTIAL Page 13 of 14 EFTA_00064891 EFTA01246462 Donnan contends he was denied the right. to testify, yet the record shows Donnen chose not La tare the witness stand based on the advice of his counsel. Donnan's contentions are without merit. rv. CONCLUSION For the foregoing reasons, tae Order Granting Petition for injunction Against Harassment entered on September 20, 200D, by the District Court of, the First Circuit, Honolulu D4v'nicn, is affirmed. DATED: Honolulu, Haveri, April 9, 2002. On the briefs: Joseph A. Ryan for Respondent-Appellant Acting Chiec Judge and , Pro se Petitioners-Appellees Associate Judge Associate Judge . 14 SL/SL d << xvd tf:ll 9L-00-LOOZ -000016 3501.125-001 CONFIDENTIAL Page 14 of 14 EFFA_00064892 EFTA01246463