NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 06-MAR-2024 09:55 AM Dkt. 63 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
WILLIAM FORESMAN, a single man, Plaintiff/Counterclaim Defendant-Appellee, v. JOHN FORESMAN, a single man, Defendant/Counterclaim Plaintiff-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC16-1-000705)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Defendant/Counterclaim Plaintiff-Appellant John
Foresman (Uncle) appeals from the Circuit Court of the First
Circuit's November 28, 2018 Final Judgment awarding
Plaintiff/Counterclaim Defendant-Appellee William Foresman
(Nephew) $50,000.00 in general damages and $200,000.00 in
punitive damages, in accordance with a jury verdict. 1
1 The Honorable Keith K. Hiraoka presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Nephew sued Uncle for civil damages under Hawaiʻi
Revised Statutes (HRS) § 657-1.8 (2016), 2 asserting Uncle
sexually molested him between 1975 and 1976, when Nephew was
approximately 7 and 8 years old, and Uncle was approximately 15
and 16 years old.
The gravamen of Uncle's appeal challenges HRS § 657-
1.8 as unconstitutional for imposing punishment for acts
committed in 1975 and 1976, despite those acts not constituting
criminal offenses at the time. 3 See Peugh v. United States, 569
2 HRS § 657-1.8 allows for "[a] civil cause of action for the sexual abuse of a minor . . . based upon sexual acts that constituted or would have constituted a criminal offense under part V or VI of [HRS] chapter 707."
3 Uncle raises five points of error on appeal:
(1) HRS § 657-1.8 is an unconstitutional ex post facto law under article I, section 10, clause I of the United States Constitution;
(2) HRS § 657-1.8 is an unconstitutional ex post facto law under the Hawaiʻi Constitution;
(3) HRS § 657-1.8 is unconstitutional as it deprives persons of life, liberty, or property without due process of law as required under the Fourteenth Amendment to the United States Constitution;
(4) HRS § 657-1.8 is unconstitutional as it deprives persons of life, liberty, or property without due process of law as required under article I, section 5 of the Hawaiʻi Constitution; and
(5) the circuit court erred in instructing the jury to determine civil sexual abuse claims based on the elements of subsequently enacted crimes.
All these points turn on whether HRS § 657-1.8 violates the United States Constitution's prohibition against ex post facto laws.
Uncle contends HRS § 657-1.8 violates due process under the United States and Hawaiʻi Constitutions solely because it violates the prohibition
(continued . . .)
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
U.S. 530, 532–33 (2013) ("The Constitution forbids the passage
of ex post facto laws, a category [including] '[e]very law that
changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed.'") (quoting Calder
v. Bull, 3 U.S. 386, 390 (1798)). Nephew argues, inter alia,
Uncle failed to raise an ex post facto challenge below and
failed to submit instructions he claims to have been entitled.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced by the parties, we
affirm.
(1) We first address Nephew's waiver arguments.
Nephew argues Uncle waived his constitutional challenge by
failing to expressly argue to the circuit court that HRS § 657-
1.8 violates the ex post facto clause. However, Uncle objected
to the approved jury instructions on the basis that his
liability would turn on elements of crimes which did not exist
(. . . continued)
against ex post facto laws. Moreover, the Hawaiʻi Constitution does not contain its own ex post facto clause; it bars ex post facto measures by virtue of its prohibition against "legislation not inconsistent with . . . the Constitution of the United States." Hawaiʻi Const. art. III, § 1; State v. Guidry, 105 Hawaiʻi 222, 236, 239, 96 P.3d 242, 256, 259 (2004). Lastly, Uncle provided no discernable argument on Point 5; thus, we deem it waived, or at a minimum, subsumed within the ex post facto argument. See Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7); Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawaiʻi 438, 472 n.17, 164 P.3d 696, 730 n.17 (2007).
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
at the time of the incident, violating "fundamental fairness"
under "the Constitution." The United States Supreme Court has
observed the ex post facto clause "safeguards 'a fundamental
fairness interest . . . in having the government abide by the
rules of law it establishes to govern the circumstances under
which it can deprive a person of his or her liberty or life.'"
Peugh, 569 U.S. at 544 (emphasis added) (quoting Carmell v.
Texas, 529 U.S. 513, 533 (2000)). Thus, Uncle's objection
sufficiently preserved the ex post facto issue.
Nephew also argues Uncle invited the error by not
supplying the circuit court with a form of special jury
instructions containing elements of sexual abuse crimes in
effect at the time of the incidents. However, after the circuit
court indicated it would submit Nephew's proposed instructions
to the jury, Uncle objected, stating the crimes referenced in
the jury instructions "should be the ones that are defined as of
the date of the alleged incident." Thus, Uncle did not agree to
the portion of the instructions now being contested, nor did he
leave his objection unspoken. See Moyle v. Y & Y Hyup Shin
Corp., 116 Hawaiʻi 388, 397, 173 P.3d 535, 544 (App. 2007),
vacated on other grounds, 118 Hawaiʻi 385, 191 P.3d 1062 (2008).
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 06-MAR-2024 09:55 AM Dkt. 63 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
WILLIAM FORESMAN, a single man, Plaintiff/Counterclaim Defendant-Appellee, v. JOHN FORESMAN, a single man, Defendant/Counterclaim Plaintiff-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CC16-1-000705)
SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Defendant/Counterclaim Plaintiff-Appellant John
Foresman (Uncle) appeals from the Circuit Court of the First
Circuit's November 28, 2018 Final Judgment awarding
Plaintiff/Counterclaim Defendant-Appellee William Foresman
(Nephew) $50,000.00 in general damages and $200,000.00 in
punitive damages, in accordance with a jury verdict. 1
1 The Honorable Keith K. Hiraoka presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Nephew sued Uncle for civil damages under Hawaiʻi
Revised Statutes (HRS) § 657-1.8 (2016), 2 asserting Uncle
sexually molested him between 1975 and 1976, when Nephew was
approximately 7 and 8 years old, and Uncle was approximately 15
and 16 years old.
The gravamen of Uncle's appeal challenges HRS § 657-
1.8 as unconstitutional for imposing punishment for acts
committed in 1975 and 1976, despite those acts not constituting
criminal offenses at the time. 3 See Peugh v. United States, 569
2 HRS § 657-1.8 allows for "[a] civil cause of action for the sexual abuse of a minor . . . based upon sexual acts that constituted or would have constituted a criminal offense under part V or VI of [HRS] chapter 707."
3 Uncle raises five points of error on appeal:
(1) HRS § 657-1.8 is an unconstitutional ex post facto law under article I, section 10, clause I of the United States Constitution;
(2) HRS § 657-1.8 is an unconstitutional ex post facto law under the Hawaiʻi Constitution;
(3) HRS § 657-1.8 is unconstitutional as it deprives persons of life, liberty, or property without due process of law as required under the Fourteenth Amendment to the United States Constitution;
(4) HRS § 657-1.8 is unconstitutional as it deprives persons of life, liberty, or property without due process of law as required under article I, section 5 of the Hawaiʻi Constitution; and
(5) the circuit court erred in instructing the jury to determine civil sexual abuse claims based on the elements of subsequently enacted crimes.
All these points turn on whether HRS § 657-1.8 violates the United States Constitution's prohibition against ex post facto laws.
Uncle contends HRS § 657-1.8 violates due process under the United States and Hawaiʻi Constitutions solely because it violates the prohibition
(continued . . .)
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
U.S. 530, 532–33 (2013) ("The Constitution forbids the passage
of ex post facto laws, a category [including] '[e]very law that
changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed.'") (quoting Calder
v. Bull, 3 U.S. 386, 390 (1798)). Nephew argues, inter alia,
Uncle failed to raise an ex post facto challenge below and
failed to submit instructions he claims to have been entitled.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced by the parties, we
affirm.
(1) We first address Nephew's waiver arguments.
Nephew argues Uncle waived his constitutional challenge by
failing to expressly argue to the circuit court that HRS § 657-
1.8 violates the ex post facto clause. However, Uncle objected
to the approved jury instructions on the basis that his
liability would turn on elements of crimes which did not exist
(. . . continued)
against ex post facto laws. Moreover, the Hawaiʻi Constitution does not contain its own ex post facto clause; it bars ex post facto measures by virtue of its prohibition against "legislation not inconsistent with . . . the Constitution of the United States." Hawaiʻi Const. art. III, § 1; State v. Guidry, 105 Hawaiʻi 222, 236, 239, 96 P.3d 242, 256, 259 (2004). Lastly, Uncle provided no discernable argument on Point 5; thus, we deem it waived, or at a minimum, subsumed within the ex post facto argument. See Hawaiʻi Rules of Appellate Procedure Rule 28(b)(7); Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawaiʻi 438, 472 n.17, 164 P.3d 696, 730 n.17 (2007).
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
at the time of the incident, violating "fundamental fairness"
under "the Constitution." The United States Supreme Court has
observed the ex post facto clause "safeguards 'a fundamental
fairness interest . . . in having the government abide by the
rules of law it establishes to govern the circumstances under
which it can deprive a person of his or her liberty or life.'"
Peugh, 569 U.S. at 544 (emphasis added) (quoting Carmell v.
Texas, 529 U.S. 513, 533 (2000)). Thus, Uncle's objection
sufficiently preserved the ex post facto issue.
Nephew also argues Uncle invited the error by not
supplying the circuit court with a form of special jury
instructions containing elements of sexual abuse crimes in
effect at the time of the incidents. However, after the circuit
court indicated it would submit Nephew's proposed instructions
to the jury, Uncle objected, stating the crimes referenced in
the jury instructions "should be the ones that are defined as of
the date of the alleged incident." Thus, Uncle did not agree to
the portion of the instructions now being contested, nor did he
leave his objection unspoken. See Moyle v. Y & Y Hyup Shin
Corp., 116 Hawaiʻi 388, 397, 173 P.3d 535, 544 (App. 2007),
vacated on other grounds, 118 Hawaiʻi 385, 191 P.3d 1062 (2008).
(2) Next, Uncle contends HRS § 657-1.8 violates the ex
post facto clause because it imposes a punishment for acts
committed in 1975 and 1976, even though they did not constitute
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
criminal offenses at that time. He argues: (1) sexual assault
was not a crime in 1975 and 1976, and the similar crimes of
first and second degree rape under HRS §§ 707-730 (1976) and
707-731 (1976) required that a male engage in sexual intercourse
or sexual contact with a female; (2) indecent exposure was a
crime in 1975 and 1976, but the then-existing version under HRS
§ 707-738 (1976) required additional proof of "intent to gratify
sexual desire"; (3) continuous sexual assault of a minor was not
a crime in 1975 and 1976, and the similar crime of first degree
sexual abuse under HRS § 707-736 (1976) required proof of
"intent to gratify sexual desire"; and (4) Nephew is not a
female, and the jury was not instructed on "intent to gratify
sexual desire."
Uncle further contends liability is a form of
punishment under United States v. Reisinger, 128 U.S. 398
(1888), and that "[c]reating liability for a past act that did
not impose liability at the time of it's [sic] alleged
commission inflicts greater punishment then when committed."
Citing DeVeau v. Braisted, 363 U.S. 144 (1960), he argues the
determining factor is whether the "legislative aim was to
punish" an individual for past activity, rather than as a
restriction incident to regulation of a present situation.
The ex post facto clause pertains to statutes with a
punitive intent, whether classified as criminal or civil. See
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Smith v. Doe, 538 U.S. 84, 95 (2003). "If the intention of the
legislature was to impose punishment, that ends the inquiry.
If, however, the intention was to enact a regulatory scheme that
is civil and nonpunitive," then the court determines whether the
statute's punitive effect overcomes any nonpunitive intent.
Smith, 538 U.S. at 92.
HRS § 657-1.8 is not part of Hawaii's penal code, and
the legislature has expressly indicated its purpose is "to
provide victims of sexual abuse a fair chance to bring a civil
action against an individual or entity." S. Stand. Comm. Rep.
No. 2473, in 2012 Senate Journal, at 1033,
https://www.capitol.hawaii.gov/journal/senate/2012/Senate_Journa
l_2012_Committee_Reports.pdf [https://perma.cc/MD49-EDBM].
Thus, legislative intent was not punitive.
As to whether the statute's punitive effect overcomes
any nonpunitive intent, we apply the seven factors set out in
Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963), and conclude:
(1) creating a civil cause of action for victims of
sexual abuse of a minor does not involve an
affirmative disability or restraint;
(2) allowing for or extending the time for a civil
cause of action has not been historically
regarded as a punishment;
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(3) because claims against persons turn on whether
the acts committed would have constituted
criminal offenses, it appears that scienter is a
requirement;
(4) permitting a cause of action for damages for
criminal behavior arguably promotes traditional
aims of punishment-retribution and deterrence;
(5) the behavior to which it applies is already a
crime;
(6) the alternative purpose of providing opportunity
for compensation for a victim is clearly
assignable; and
(7) providing a cause of action—which may not
ultimately result in an award—does not appear
excessive in relation to the purpose of providing
an opportunity for a sex abuse victim to obtain
compensation.
See 372 U.S. at 168-69; State v. Guidry, 105 Hawaiʻi 222, 235-36,
96 P.3d 242, 255-56 (2004).
Factors (3), (4) and (5) weigh in favor of an ex post
facto violation, and the remaining four factors weigh against.
Therefore, "it cannot be said that [Uncle] has provided the
'clearest proof' that the statutory scheme is so punitive it has
negated the State's remedial purpose." Guidry, 105 Hawaiʻi at
7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
236, 96 P.3d at 256. Consequently, Uncle fails to show that the
statute violates the federal ex post facto clause. 4
Accordingly, we affirm the circuit court's
November 28, 2018 Final Judgment.
DATED: Honolulu, Hawai‘i, March 6, 2024.
On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Scot Stuart Brower, for Defendant/Counterclaim /s/ Karen T. Nakasone Plaintiff-Appellant. Associate Judge
Brandee J.K. Faria, /s/ Sonja M.P. McCullen Sidney S. Royer, Associate Judge for Plaintiff/Counterclaim Defendant-Appellee.
4 In accordance with principles of judicial restraint, Rees v. Carlisle, 113 Hawaiʻi 446, 456, 153 P.3d 1131, 1141 (2007), this summary disposition order shall not be construed as affirmatively determining that HRS § 657-1.8 does not violate the ex post facto clause, but only that Uncle has failed to demonstrate otherwise in this appeal.