Hawai'i Police Department v. Kubota.

• Court: Hawaii Supreme Court
• Decided: October 10, 2024
• Docket: SCPW-24-0000537
• Status: Published

Opinion

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Electronically Filed Supreme Court SCPW-XX-XXXXXXX 10-OCT-2024 09:57 AM Dkt. 49 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

HAWAIʻI POLICE DEPARTMENT, COUNTY OF HAWAIʻI, Petitioner,

vs.

THE HONORABLE PETER K. KUBOTA, Judge of the Circuit Court of the Third Circuit, State of Hawaiʻi, Respondent Judge,

and

ALBERT IAN SCHWEITZER; SHAWN SCHWEITZER; STATE OF HAWAIʻI, Respondents.

SCPW-XX-XXXXXXX

ORIGINAL PROCEEDING (CASE NOS. 3CSP-XX-XXXXXXX and 3CSP-XX-XXXXXXX)

OCTOBER 10, 2024

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.,

OPINION OF THE COURT BY EDDINS, J.

I.

Brothers Albert Ian (Ian) Schweitzer and Shawn Schweitzer

seek compensation for being wrongfully imprisoned. Under *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

Hawaiʻi’s wrongful conviction compensation law, Hawaiʻi Revised

Statutes (HRS) Chapter 661B, the Schweitzers must show that they

are “actually innocent.” To do that, the Schweitzers demand

that the Hawaiʻi County Police Department (HPD) and the County of

Hawaiʻi Office of the Prosecuting Attorney (CHOPA or county

prosecutors) turn over investigative materials relating to the

crimes for which they were imprisoned. The records may contain

evidence that they did not commit those crimes, the brothers

say.

In 2023, Ian Schweitzer filed a Hawaiʻi Rules of Penal

Procedure (HRPP) Rule 40 petition. He requested release from

prison and to have his conviction vacated. The county

prosecutors stipulated to new evidence, including the DNA

evidence. That evidence pointed to someone else. Circuit Court

of the Third Circuit Judge Peter K. Kubota concluded that a jury

considering the new evidence would likely reach a different

outcome. He granted Ian’s petition.

After decades behind bars, Ian walked out of court a free

man.

Then Shawn moved to withdraw his guilty plea and vacate his

convictions. The court vacated his convictions, too.

Their convictions lifted, the Schweitzers sought monetary

compensation under HRS Chapter 661B. However, the Attorney

General informed the Schweitzers that to begin their

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compensation case, the criminal court must have found that they

are “actually innocent.” As a result, the Schweitzers filed a

“Joint Petition for Relief Pursuant to HRS Chapter 661B” in

their criminal, Rule 40 proceedings. They asked the court to

find them “actually innocent,” so they can commence their civil

claim for compensation.

To establish their innocence, the Schweitzers turned to

discovery. They demanded that HPD and CHOPA hand over

investigatory records. HPD and CHOPA refused. They said that

HPD is still investigating the case. Until that investigation

is complete, the law enforcement agencies maintained, no

investigatory materials could be provided.

The circuit court instructed the Schweitzers to file a

motion compelling HPD to produce the materials. Then, it

granted the motion and directed the Schweitzers to prepare a

subpoena duces tecum directed to HPD. Next, HPD filed a motion

to quash the court’s subpoena. And then, after the court denied

that motion, HPD filed a writ of mandamus petition to this

court.

Confronted by a complex and baffling legal landscape, the

parties and the court inadvertently made significant procedural

missteps. We correct those missteps. We reorient the

proceedings and set the Schweitzers on a more straightforward

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path to the discovery they seek. And the compensation they feel

is deserved.

Here, we exercise our authority to issue a writ of

mandamus. The circuit court had no discretion to act on the

civil claims in the post-conviction proceeding, because under

HRPP 40(c)(3) the only correct outcome was to transfer the civil

claims to a new civil case. We order the circuit court to quash

the Schweitzers’ subpoena. We also order it to transfer the

Schweitzers’ joint petition for relief under HRS Chapter 661B to

a new civil proceeding.

The new civil case must follow the procedures prescribed by

Hawaiʻi Rules of Civil Procedure (HRCP) Rule 26 and HRS § 661B-2

(2016). Rule 26 sets forth the appropriate framework for the

court to balance the Schweitzers’ compelling interest in

obtaining information necessary to establish their claims, while

protecting legitimate law enforcement interests in the

confidentiality of investigative materials relating to a pending

matter. With discovery in hand, the Schweitzers can then fully

litigate their entitlement to compensation under Chapter 661B.

II.

A. Legal Background

In 2016, the Hawaiʻi legislature passed a law that allowed

an exoneree to seek $50,000 for each year lost while serving

time for a crime they did not commit. An actionable claim under

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HRS § 661B-1(b)(1) (2016) alleges that “[t]he judgment of

conviction was reversed or vacated because the petitioner was

actually innocent of the crimes for which the petitioner was

convicted, and the court decision so states[.]”

This court recently identified a possible flaw in the law.

No wrongs may ever right. If the words “actual innocence” were

compulsory to HRPP post-conviction relief orders, petitioners

“would rarely, if ever, be eligible for compensation.” Jardine

v. State, ___ P.3d ____, 2024 WL 4314979, at *10 (Haw. 2024).

We reasoned that “actual innocence would be nearly impossible to

satisfy.” Id. at *11.

Why? Actual innocence is just not something a criminal

court thinks about when it reverses or vacates a conviction.

Post-conviction relief – a Rule 40 win – depends on whether “the

evidence is of such a nature as would probably change the result

of a later trial.” State v. McNulty, 60 Haw. 259, 268, 588 P.2d

438, 445 (1978), overruled on other grounds by Raines v. State,

79 Hawaiʻi 219, 900 P.2d 1286 (1995). Thus, Jardine explained,

“it is unlikely that an HRPP Rule 40 court will use the words

‘actually innocent,’ because that is not the legal standard

under which it vacates a conviction or orders a new trial.”

Jardine, 2024 WL 4314979, at *11.

To activate Hawaiʻi’s wrongful conviction compensation law,

and honor the legislative intent to “identify deserving

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individuals who are innocent of crimes from those who are

not[,]” we provided a path to relief. Id. at *12-*13 (quoting

H. Stand. Rep. No. 411-16, in 2016 House Journal, at 903). We

held “that HRS § 661B-1’s requirement that a vacatur or reversal

of a conviction ‘so state’ that a petitioner is ‘actually

innocent’ means that such order must set forth facts supporting

the petitioner’s actual innocence, but need not use the words

‘actually innocent.’” Id. at *8.

We interpreted HRS § 661B-1 based on its plain meaning.

“[A]ctually innocent” simply means that a person “did not commit

the crime.” Id. at *1. Thus, there is no need for a criminal

court to write those two words in an order for an exoneree to

have an actionable 661B claim. Rather an order that finds facts

to support actual innocence, and “make[s] clear that the basis

for the reversal or vacatur is factual innocence, or innocence

of the crime,” provides the necessary pleading requirement a

petitioner must allege to present an actionable claim. Id. at

*10.

Jardine ensured access to the justice system for those who

seek redress for wrongful conviction and imprisonment. We

described chapter 661B litigation as a “two-stage process.”

“First, under HRS § 661B-1 a petitioner must allege an

actionable claim. Second, under HRS § 661B-3 (2016), a

petitioner must prove that they are ‘actually innocent.’” Id.

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at *13. Thus, if a vacatur order provides a basis for factual

innocence, then a petitioner may prove their “actual innocence”

by a preponderance of the evidence at a trial.

Like any civil case, the Hawaiʻi Rules of Civil Procedure

tee up a wrongful conviction compensation trial. Id. at *18

(“[t]hese trials will proceed under the Hawaiʻi Rules of Civil

Procedure”). Then at trial, the court “will admit relevant

evidence as necessary to make determinations as to a

petitioner’s eligibility for compensation under the statute.”

Id. In the end, the court (unless all parties consent to a jury

trial) will decide whether a petitioner has proved the HRS

§ 661B-3 elements of their claim, and whether the State has

proved any affirmative defenses under that law.

B. Underlying Criminal Cases

On December 25, 1991, Dana Ireland died from injuries that

she sustained the day before.

On October 9, 1997, brothers Ian Schweitzer and Shawn

Schweitzer were indicted for the murder, sexual assault, and

kidnapping of Dana Ireland. But after DNA test results of crime

scene evidence excluded them as the source of the DNA, the

county prosecutors dismissed all charges on October 20, 1998.

Based on testimony from an in-custody informant, county

prosecutors reindicted the Schweitzers in May 1999. Because of

a Bruton issue related to Shawn’s “confession,” the court

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severed the brothers’ cases. After a trial, on February 16,

2000 the jury found Ian guilty of second degree murder,

kidnapping, and sexual assault in the first degree. In April

2000, the court sentenced Ian to life imprisonment with the

possibility of parole.

On May 9, 2000, per a plea agreement, Shawn pled guilty to

manslaughter and kidnapping. That day, the court sentenced him to

one year in jail and probation.

C. The Schweitzers’ Post-Conviction Proceedings

On January 23, 2023, Ian petitioned the circuit court under

HRPP Rule 40 to vacate his conviction, order his release from

custody, and dismiss his indictment with prejudice. Ian and the

county prosecutors stipulated to a set of facts.

Those facts pointed to a different trial outcome. The

parties agreed that post-conviction DNA testing connected

“Unknown Male #1” to the crime, and excluded the Schweitzers.

They also agreed that bitemark evidence used at trial was

unreliable.

There was more. At trial the prosecution theorized that

Ian was driving his 1953 Volkswagen Beetle and hit Ireland while

she rode her bicycle. Turns out, the crime scene’s tire tread

evidence did not match Ian’s bug; rather, a much larger vehicle

had produced the tire tracks at the crime scene. The parties

also mentioned in the stipulated facts that Shawn Schweitzer had

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recanted his prior confession, maintained his innocence, and

passed a polygraph examination.

The parties stipulated that the DNA and bitemark evidence

was newly discovered evidence that could not have been presented

at trial and that the tire tread evidence was newly presented

evidence.

Per HRPP Rule 40(a)(1), newly discovered evidence is one

reason for relief from a criminal judgment. Newly presented

evidence is evidence that could have been presented in the

original trial, but was not. See Griffin v. Johnson, 350 F.3d

956, 961 (9th Cir. 2003). Here, the court concluded that the

newly presented tire tread evidence was “highly probative and

highly reliable” to determining the outcome, so the court

included that evidence in its consideration.

The day after the parties stipulated to facts supporting

HRPP Rule 40 post-conviction relief, the circuit court held an

evidentiary hearing. The court orally granted the petition,

vacated Ian’s convictions, and dismissed the indictment without

prejudice. Ian walked out of court, a free man for the first

time in decades.

About nine months later, on October 20, 2023, Ian’s

attorneys submitted a proposed order granting the HRPP Rule 40

petition. It included extensive findings of fact and

conclusions of law. The FOFs largely reflected the parties’

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stipulated facts. That same day, the court adopted Ian’s FOFs

and COLs. The new evidence, the order announced, “conclusively

proves that in a new trial a jury would likely reach a verdict

of acquittal.” The court vacated Ian’s convictions and

dismissed the indictment without prejudice.

Four days later, Shawn and the county prosecutors submitted

a “Stipulation to Allow Withdrawal of Guilty Plea and to Vacate

Judgment of Conviction.” The court approved the stipulation and

vacated Shawn’s conviction. Then it granted the prosecutor’s

oral motion to dismiss his criminal case without prejudice.

When Shawn left court, he no longer had convictions for

manslaughter and kidnapping.

On March 7, 2024, Ian filed a “Motion for Finding of Actual

Innocence.” Ian asked the court to make a finding that, for

purposes of HRS § 661B-3, he was convicted and imprisoned but

“actually innocent” of the crimes he was incarcerated for “so he

can seek compensation pursuant to HRS § 661B-3(c).”

Ian attached to the motion a February 27, 2024 letter

signed by Attorney General Anne E. Lopez. The letter stated

that Ian did not meet the requirements to seek compensation

under HRS § 661B-1. The Attorney General wrote that because the

court’s findings vacating the conviction did not say Ian was

“actually innocent” and because the court dismissed the charges

without prejudice, Ian did not meet the statutory requirement

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that the post-conviction order “so states” a person is “actually

innocent.”

On March 15, 2024, the county prosecutors opposed Ian’s

motion for a finding of actual innocence. CHOPA took a

different position than the Attorney General. It argued, “the

determination of ‘actual innocence’ as part of the Rule 40

petition is improper and that Petitioner can address this issue

through Section 661B.”

Actual innocence is not the standard a Rule 40 court uses

to make its decision, CHOPA explained. HRPP Rule 40(a)(1)

provides five reasons for a petitioner to obtain relief from a

criminal judgment. Ian used the fourth reason, newly discovered

evidence. This court has adopted a four-part test to decide if

newly discovered evidence warrants a new trial:

(1) the evidence has been discovered after trial; (2) such evidence could not have been discovered before or at trial through the exercise of due diligence; (3) the evidence is material to the issues and not cumulative or offered solely for purposes of impeachment; and (4) the evidence is of such a nature as would probably change the result of a later trial.

McNulty, 60 Haw. at 267–68, 588 P.2d at 445. Thus, CHOPA

argued, the Rule 40 court considers only whether newly

discovered evidence could change the jury’s verdict, not whether

the petitioner is actually innocent.

The Attorney General and the county prosecutors took

incompatible positions. Ian only gets a 661B proceeding, the AG

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said, if his Rule 40 order states that he is actually innocent.

But a Rule 40 judge would never say that, the County counters,

because actual innocence isn’t the standard to decide Rule 40

petitions.

Trapped by this quandary, on June 4, 2024, Ian and Shawn

filed a “Joint Petition for Relief Pursuant to HRS Chapter 661B”

in the two Rule 40 dockets. The brothers sought “a finding from

the Court that they are both actually innocent and [an] order

that they be compensated pursuant to HRS § 661B-3(c).” They

styled the joint petition as a civil complaint in the criminal

dockets, citing civil laws to establish venue and a right of

action.

The county prosecutors opposed the Schweitzers’ joint

petition.

Meanwhile, a forensic genealogy expert had identified a

suspect believed to be Unknown Male #1. That person was Albert

Lauro, Jr. A DNA sample clandestinely collected from Lauro’s

discarded disposable fork matched the DNA found at the crime

scene.

On July 19, 2024, HPD collected Lauro’s DNA from a cheek

swab without arresting him. On July 24, testing revealed that

the cheek sample matched the fork sample and the DNA from the

crime scene. On July 26, 2024, the Schweitzers’ lawyers

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requested an emergency chambers conference with the court.

Reportedly, Lauro had died by suicide.

The next day, the circuit court held the emergency

conference. It instructed the Schweitzers’ counsel to file a

motion to compel discovery from the Hawaiʻi County prosecutors

and police department requiring them to produce any relevant

information regarding Ireland’s murder and their investigation

into Lauro. The court set a hearing on the motion for July 30,

2024.

On July 28, 2024, the Schweitzers filed the court-suggested

motion to compel discovery. The Schweitzers cited Brady v.

Maryland, 373 U.S. 83 (1963), HRPP Rule 16, and Hawaiʻi Rules of

Professional Conduct Rule 3.8(b) to support their motion.

The next day, CHOPA filed their memorandum in opposition.

It argued that Brady and the HRPP didn’t apply to the

Schweitzers, because they were no longer criminal defendants.

On July 30, 2024, the circuit court held a hearing where it

ruled that the Lauro investigation was highly relevant to

determining the Schweitzers’ actual innocence. The court

granted the Schweitzers’ motion to compel and invited them to

submit a subpoena duces tecum due in two days, August 1, 2024 at

9:30 a.m. It also ordered HPD to produce documents for in

camera review. The court would decide whether those materials

should be disclosed to the Schweitzers.

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On August 1, HPD filed a motion to quash the subpoena.

After the court continued the matter, HPD filed a new motion to

quash on August 2.

Citing to the Uniform Information Practices Act, HRS

§§ 92F-13 (2012) and 92F-22 (2012), HPD argued that the

Schweitzers “are not entitled to the requested records at this

time because release of the records would frustrate a legitimate

government purpose and could upend the integrity of the ongoing

and open criminal investigation” into Ireland’s death. HPD said

that it was still completing its investigation “related to the

new developments involving the identification of Unknown Male #1

as Albert Lauro, Jr. (deceased)” and that “[i]t has been

approximately one week” since HPD learned of Lauro’s death and

“the ongoing investigation is currently incomplete.” An HPD

Captain declared that releasing police records publicly might

interfere with witness testimony or other evidence.

HPD further argued that the Schweitzers reliance on Brady

is misguided. Brady only applies to accused criminal

defendants, HPD explained, but both Schweitzers were no longer

defendants; their convictions had been vacated and their cases

dismissed without prejudice.

If the court insisted on allowing the subpoena, HPD

requested in camera review and a protective order.

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That same day, the circuit court declined to grant the

motion to quash and granted the Schweitzers’ motion to compel.

The next day, HPD filed another motion to quash, making similar

arguments.

On August 5, 2024, the court reconvened for a hearing on

the Schweitzers’ motion for finding of actual innocence, their

petition for Chapter 661B relief, and HPD’s motion to quash

subpoena duces tecum.

The circuit court ruled that even though the Schweitzers

were no longer accused in a criminal prosecution, Brady’s

principles still apply. CHOPA opposed the Schweitzers actual

innocence, the court reasoned, so evidence tending to exonerate

them is relevant to the Schweitzers’ actual innocence claim.

The court ordered HPD to submit its investigative materials for

in camera review. Then the court would decide whether to

release documents to the Schweitzers.

On August 6, 2024, HPD filed an emergency motion to stay

the subpoena pending review by this court.

On August 7, the circuit court held a hearing on releasing

the HPD documents. The court asked the Hawaiʻi County deputy

corporation counsel, representing HPD, why the investigation was

still ongoing, given Lauro’s death. Counsel mused that HPD

might be able to identify someone that was with Lauro and was

complicit in Ireland’s death.

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The court remarked that it didn’t see what further

investigation would be necessary, and that the public’s right to

understand the investigation into Lauro greatly outweighed the

value of a continuing investigation. But, recognizing the

mandamus petition pending before us, the court paused the case.

D. Writ of Mandamus Petition and Arguments

On August 7, 2024, HPD filed a petition for writ of

mandamus. HPD sought an order to vacate the August 5, 2024

denial of its motion to quash, and to order the circuit court to

maintain the confidentiality of the requested law enforcement

records. HPD argued that UIPA supported its demand to keep the

records confidential. And it said Brady doesn’t apply.

On August 8, this court issued an order staying the

subpoena. We ordered briefing.

Ian opposes HPD’s writ. He makes five main arguments.

First, Ian argues that UIPA is “not a shield against

discovery.” Just because a document falls within a UIPA

exception, does not mean it’s undiscoverable. See State of

Hawaiʻi Org. of Police Officers v. City and Cnty. of Honolulu,

149 Hawaiʻi 492, 508-09, 494 P.3d 1225, 1241-42 (2021). Rather,

the Hawaiʻi Rules of Civil Procedure govern discovery, Ian says.

There is no UIPA privilege in HRCP’s discovery rules.

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Second, Ian argues that the Hawaiʻi Rules of Evidence (HRE)

govern privileges, and HRE 501 requires a privilege to be

“expressly provided by law.” UIPA does not create a privilege.

Third, Ian attacks HPD’s assertion of an ongoing

investigation as “conclusory” and “unsupported by any specific

evidence or factual detail.” Ian argues that HPD’s suspicions

fail to justify withholding records, citing Grube v. Trader, 142

Hawaiʻi 412, 426, 420 P.3d 343, 357 (2018) (nonspecific

assertions insufficient to justify keeping records

confidential). Courts need something more concrete, Ian

contends.

Fourth, Ian argues that Brady’s principles obligate the

police to turn over exculpatory material in HRS Chapter 661B

cases.

Fifth, Ian claims that a prosecutor’s professional

responsibility also requires the county to turn over records.

See Hawaiʻi Rules of Professional Conduct Rule 3.8 Cmt. 1

(prosecutor has ethical duty to rectify the conviction of

innocent people).

For his part, Shawn argues that HPD failed to meet the high

threshold for a writ of mandamus: an indisputable right to

relief. See Womble Bond Dickinson (US) LLP v. Kim, 153 Hawaiʻi

307, 319, 537 P.3d 1154, 1166 (2023).

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First, Shawn contends there is no absolute privilege that

shields police records from discovery in civil or criminal

cases. Shawn says that the subpoena, in a Rule 40 case, is a

criminal, not civil, matter.

Second, Shawn argues that HPD’s justifications for

concealing information were unfounded. So, no UIPA exception

applies to HPD’s investigation into Lauro.

Third, Shawn urges that the appropriate safeguard to

protect confidential information is for the circuit court to

review the documents in chambers.

In their supplemental brief, the brothers further argue

that a Rule 40 court is the appropriate forum to determine

actual innocence. A Rule 40 court must decide actual innocence,

they say, because HRS § 661B-1 refers to a Rule 40 court

decision that “so states” actual innocence.

The brothers argue that HRPP Rule 40(c)(3) does not require

moving the actual innocence question to civil court. That rule

reads:

(3) Separate Cause of Action. If a post-conviction petition alleges neither illegality of judgment nor illegality of post-conviction “custody” or “restraint” but instead alleges a cause of action based on a civil rights statute or other separate cause of action, the court shall treat the pleading as a civil complaint not governed by this rule. However, where a petition seeks relief of the nature provided by this rule and simultaneously pleads a separate claim or claims under a civil rights statute or other separate cause of action, the latter claim or claims shall be ordered transferred by the court for disposition under the civil rules.

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HRPP Rule 40(c)(3) (emphasis added). The brothers say that

their HRS Chapter 661B joint petition does not allege a separate

cause of action. Rather, it just requests a finding in the

criminal case that is a precondition to enter civil court.

Third, the brothers argue that because the joint petition

is criminal, Hawaiʻi’s civil discovery rules don’t apply.

Fourth, the brothers believe there is no absolute privilege

for police records, citing Tighe v. City & Cnty. of Honolulu, 55

Haw. 420, 422, 520 P.2d 1345, 1346 (1974). And, they say, HPD’s

purported UIPA privilege is unsupported.

CHOPA and HPD each filed supplemental briefs. Those briefs

argue that the orders granting Ian’s Rule 40 petition and

Shawn’s plea withdrawal, and vacating the brothers’ convictions,

ended the Rule 40 matter. The Schweitzers’ joint petition

invoked HRS Chapter 661B, so it should be treated as a separate

civil action under HRPP 40(c)(3). And, the county entities

note, the Schweitzers didn’t complete procedural requirements to

kickstart a 661B action, like serving the AGs.

The county prosecutors also argue that HPD’s records are

privileged law enforcement records per Mehau v. Gannett Pac.

Corp., 66 Haw. 133, 156, 658 P.2d 312, 327 (1983). CHOPA

explains that law enforcement needs to keep investigating this

case, and to do that effectively, confidentiality is important.

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It even floats the possibility that the Schweitzers are guilty

after all, insisting there is “no evidence to conclusively show”

that the Schweitzers were not involved in Ireland’s death.

CHOPA also says it needs time to follow up on the new DNA

evidence pointing to Lauro.

Had the Schweitzers properly filed their 661B petition as a

separate civil action, HPD adds, then HRCP discovery rules would

apply. HPD relies on the law enforcement privilege that it

thinks this court created in Mehau. Because that case

purportedly grounded this putative privilege in UIPA, HPD argues

it satisfies HRE 501’s requirement that evidentiary privileges

arise from a statute.

III.

The Hawaiʻi Constitution and HRS § 602-5(a) (2016) empower

the Hawaiʻi Supreme Court to issue writs. Rivera v. Cataldo, 153

Hawaiʻi 320, 324, 537 P.3d 1167, 1171 (2023). HRS § 602-5(a)(3)

gives this court original jurisdiction to consider writs

directed to lower courts. Id. HRS § 602-5(a)(5) authorizes us

to issue writs or orders to aid jurisdiction. Id.

More broadly, HRS § 602-5(a)(6) empowers this court to do

justice. Id. This court may “make and award such judgments,

decrees, orders and mandates, issue such executions and other

processes, and do such other acts and take such other steps as

may be necessary to carry into full effect the powers which are

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or shall be given to it by law for the promotion of justice in

matters pending before it.” HRS § 602-5(a)(6).

This court also has general supervisory powers to prevent

and correct errors in our state’s lower courts. Rivera, 153

Hawaiʻi at 324, 537 P.3d at 1171. “The supreme court shall have

the general superintendence of all courts of inferior

jurisdiction to prevent and correct errors and abuses therein

where no other remedy is expressly provided by law.” HRS § 602-

4 (2016).

civil claims in the post-conviction proceeding, because under

HRPP 40(c)(3) the only correct outcome was to transfer the civil

claims to a new civil case. We order the circuit court to quash

the Schweitzers subpoena. We also order the court to transfer

the Schweitzers’ joint petition for relief under HRS Chapter

661B to a new civil proceeding.

HRCP Rule 26 and HRS § 661B-2. The Schweitzers must serve the

Department of the Attorney General (AG). Their discovery

request must wait until after the AG answers the petition.

Then, the parties should follow HRCP Rule 26’s discovery

procedures: a conference, a discovery plan, and initial

disclosures. The civil court should also take steps to protect

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any constitutionally or statutorily protected information from

disclosure.

The civil court should evaluate the Schweitzers’ discovery

request under HRCP Rule 26. Brady and UIPA are not relevant to

the analysis: Brady applies to criminal defendants, and UIPA

does not apply to civil litigation or create an exception to

discovery.

We also clarify that there is no qualified law enforcement

privilege in Hawaiʻi. This court’s two cases recognizing that

privilege, Mehau and Kaneshiro v. Au, 67 Haw. 442, 690 P.2d 1304

(1984), concerned a matter that predated the Hawaiʻi Rules of

Evidence. HRE 501 has since abrogated the qualified privilege,

leaving only HRE 510, the informant identity privilege, in its

place.

Law enforcement agencies have an alternative remedy,

though. They may seek a protective order per HRCP Rule 26(c) to

ensure the appropriate confidentiality of sensitive information.

Last, we comment on the circuit court’s timeline in this

case. The court’s extremely tight deadlines were not

appropriate under the circumstances.

A. The Circuit Court Should Not Have Compelled Civil Discovery in a Criminal Proceeding

We issue a writ of mandamus because the circuit court had

no discretion to act on the civil claims in the post-conviction

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proceeding. Under HRPP Rule 40, the only correct outcome was to

transfer the civil claims to a new civil case.

This court grants writs only in extraordinary

circumstances. Womble, 153 Hawaiʻi at 319, 537 P.3d at 1166.

Exceeding jurisdiction, flagrantly and manifestly abusing

discretion, and refusing to act when it has a legal duty to act

are court actions and inaction that may constitute extraordinary

circumstances to issue a writ. Id. This court has also granted

a writ of mandamus when lower courts persistently misapplied

discovery rules in excess of their jurisdiction. State ex rel.

Marsland v. Ames, 71 Haw. 304, 306, 788 P.2d 1281, 1283 (1990).

To obtain a writ, a petitioner must “demonstrate a clear

and indisputable right to the relief requested and a lack of

other means to redress adequately the alleged wrong or to obtain

the requested action.” Womble, 153 Hawaiʻi at 319, 537 P.3d at

1166 (cleaned up).

Here, HPD has established a clear and indisputable right to

the relief requested, and the appeal remedy is inadequate in the

extraordinary circumstances raised by this case where HPD was

compelled by the circuit court to disclose information related

to a pending criminal investigation on an expedited basis. See

Brende v. Hara, 113 Hawaiʻi 424, 429, 153 P.3d 1109, 1114 (2007)

(holding that petitioner was entitled to mandamus relief where

the circuit court entered an order that allowed the release of

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confidential information obtained in discovery). Further,

sometimes lower courts require immediate need of direction from

this court on a procedural and substantive matter of public

importance. See Rivera, 153 Hawaiʻi at 325, 537 P.3d at 1172.

The parties and the circuit court confronted a blurry

situation. (This case preceded Jardine.) Others too may have

head-scratched over 661B. Because no order “so states” that the

Schweitzers were “actually innocent,” Attorney General Lopez, in

her February 2024 letter, opined that the Schweitzers did not

meet HRS § 661B-1’s precondition to begin a civil action for

compensation.

The Schweitzers therefore reasonably believed that they

needed to press on in the HRPP Rule 40 proceeding to obtain an

“actual innocence” finding. Only then could they begin their

civil 661B claim.

But, adjudicating an extra finding of actual innocence for

a 661B claim defies HRPP Rule 40(c)(3). HRPP Rule 40 enables a

convicted defendant to obtain relief from a criminal judgment or

criminal custody. HRPP 40(c)(3) says:

(3) Separate Cause of Action. If a post-conviction petition alleges neither illegality of judgment nor illegality of post-conviction “custody” or “restraint” but instead alleges a cause of action based on a civil rights statute or other separate cause of action, the court shall treat the pleading as a civil complaint not governed by this rule. However, where a petition seeks relief of the nature provided by this rule and simultaneously pleads a separate claim or claims under a civil rights statute or other separate cause of action, the latter claim or claims

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shall be ordered transferred by the court for disposition under the civil rules.

Rule 40(c)(3) addresses two situations. The rule’s first

sentence says if a petitioner mistakenly files only a civil

claim without including a claim for relief from a criminal

judgment or custody, the court should consider the matter a

civil case. Id. The second sentence says that if a petitioner

files claims for both post-conviction criminal relief and civil

remedies, then the court shall transfer the civil claims to a

separate proceeding governed by the HRCP. Id.

Here, the Schweitzers’ “Joint Petition for Relief Pursuant

to HRS Chapter 661B” arises “under a civil rights statute or

other separate cause of action,” so it is a civil claim. See

id. The circuit court – invoking criminal jurisdiction in the

post-conviction relief proceeding – was required by HRPP

40(c)(3) to transfer the joint petition to a new civil

proceeding.

We order the court to transfer the Schweitzers’ joint

petition for relief under HRS Chapter 661B to a new civil case.

The transfer matters because Rule 40 proceedings are criminal

and 661B proceedings are civil.

The Hawaiʻi Rules of Penal Procedure control the

Schweitzers’ post-conviction proceedings. Grindling v. State,

144 Hawaiʻi 444, 453, 445 P.3d 25, 34 (2019). In contrast, the

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Schweitzers’ Joint Petition for HRS Chapter 661B Relief is a

civil matter against the State. See HRS § 661B-1 (authorizing a

wrongfully convicted person to seek “an award of damages against

the State”); Jardine, 2024 WL 4314979, at *13 (explaining “in a

HRS chapter 661B civil claim, the petitioner then has the burden

to prove by a preponderance of the evidence that they are

‘actually innocent of the crimes at issue’”). A Rule 40

proceeding, Jardine recognizes, occurs in criminal court, while

a 661B proceeding happens in civil court: “Jardine’s HRPP Rule

40 petition was adjudicated in criminal court using the McNulty

standard . . . . [I]n his HRS chapter 661B proceeding, Jardine

must show by a preponderance of the evidence in civil court that

he was actually innocent.” 2024 WL 4314979, at *19.

Criminal and civil proceedings are governed by different

procedural rules. The HRPP guide criminal proceedings. HRPP

Rule 1(a). The HRCP govern civil proceedings. HRCP Rule 1(a).

Therefore, we clarify that the discovery the Schweitzers seek to

support their joint petition must be handled under the civil

rules, not the penal rules.

HPD has an indisputable right to relief. We grant HPD a

writ of mandamus. We order the circuit court to quash the

Schweitzers’ subpoena in the Rule 40 case and transfer their

petition to a new civil case.

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B. The Court Must Transfer Discovery to the New Civil Court for It to Evaluate

As part of our writ of mandamus, we order the court not to

release the discovery produced to it in the completed post-

conviction proceedings. Any further determination on the

release of those records should come from the presiding judge in

the new civil case. The circuit court should transfer the

discovery it holds to the new civil court judge (which may also

be Judge Kubota, sitting in his civil capacity). The civil

court will decide whether documents should be returned to HPD or

produced and under what conditions or protections.

We provide some guidance about what should happen in the

civil proceeding. As this court did in Kaneshiro, we exercise

our HRS § 602-4 powers because resolving the conflict between a

party’s discovery rights and a law enforcement agency’s desire

for confidentiality is of considerable public importance.

Kaneshiro, 67 Haw. at 446, 690 P.2d at 1308. As in Kaneshiro,

we provide instructions to the circuit court. Id. We address

legal issues raised by the parties and those implicit in the

situation faced by a circuit court judge. Id.

And, because HPD may continue to resist producing

information to the Schweitzers, we lay out a blueprint for how

the new civil court should evaluate the Schweitzers’ discovery

request.

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In the civil court, the Schweitzers’ discovery demand must

proceed under HRCP Rule 26 and HRS § 661B-2. Thus, the new

civil judge may not release the materials until four things have

happened.

First, the Schweitzers must serve the Department of the

Attorney General. Second, their discovery request must wait

until the AGs file an answer per HRS § 661B-2. Third, the

parties must follow the conference, discovery plan, and

disclosure steps required by HRCP Rule 26. Fourth, the court

should take steps to protect any constitutionally or statutorily

protected information from disclosure.

In the new civil case, the Schweitzers must serve the

Department of the Attorney General. Under HRCP 4(a), “[u]pon

the filing of the complaint the clerk shall forthwith issue a

summons” directed to the defendant. In a Chapter 661B case, the

defendant is the State of Hawaiʻi. So, service must follow HRCP

4(d)(4)’s and HRS § 661B-2(a)’s commands. HRCP 4(d)(4) says

that service of process on the State is made by “delivering a

copy of the summons and of the complaint” to the attorney

general, the assistant attorney general, or their designee. HRS

§ 661B-2(a) provides, “[t]he petitioner shall serve the petition

upon the attorney general, and if the prosecuting authority was

other than the attorney general, upon the prosecuting

authority.”

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Here, the Schweitzers’ petition has not commenced

correctly. In the new civil case, the Schweitzers must serve

the Department of the Attorney General and the County of Hawaiʻi

Office of the Prosecuting Attorney.

Second, discovery must wait until after the answer. HRS

§ 661B-2(b) requires the Attorney General to file “an answer

that shall either admit that the petitioner is entitled to

compensation or deny the petitioner’s claim.” If the Attorney

General “denies that the petitioner is entitled to compensation,

then the court shall conduct a trial to determine if the

petitioner is entitled to compensation and the amount, if any.”

Id. If the Attorney General enters a complete denial, then

liability and damages are both at issue. If the Attorney

General concedes liability, “the court shall conduct a trial to

determine the amount of compensation.” Id. In this scenario,

the relevant issues narrow to damages.

Discovery is only relevant when it relates to a party’s

claim or defense. HRCP Rule 26(b)(1)(A). The Schweitzers’

requested discovery is only relevant so long as the Attorney

General continues to deny the Schweitzers’ entitlement to

compensation. If the AG concedes that the Schweitzers are due

compensation, there is no need for future discovery to prove

that the Schweitzers are actually innocent - the civil case

advances to the calculation of damages. Until the AG answers,

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though, who knows whether further discovery is relevant.

Relevance depends on the Attorney General’s position.

Third, discovery should proceed under Rule 26’s framework.

A party in a civil case is generally prohibited from seeking

discovery from any source before the parties confer at the

discovery conference required by HRCP 26(f), produce a discovery

plan per HRCP 26(f)(3), and release their initial disclosures

per HRCP 26(a). HRCP Rule 26(d)(1) provides:

(d) Timing and Sequence of Discovery.

(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f) of this Rule, except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) of this Rule, or when authorized by these rules, by stipulation, or by court order.

HRCP Rule 26(f) requires a discovery conference. It

provides that the parties must generally confer “as soon as

practicable.” HRCP Rule 26(f)(1). The parties should arrange

for their disclosures and develop a discovery plan. HRCP Rule

26(f)(2). Rule 26(f)(3) outlines the contents of a discovery

plan. HRCP Rule 26(a) lists the items required in initial

disclosures.

The Schweitzers sought civil discovery in the post-

conviction proceeding. The circuit court erred by allowing the

civil discovery in the criminal case and by allowing civil

discovery outside the order provided by HRCP Rule 26. The new

civil judge and the parties need to go through this process

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before the court decides whether a motion to compel discovery is

needed.

Fourth, the new civil judge must take appropriate steps to

protect privileged and legally protected information.

The Hawaiʻi Constitution’s right to privacy protects a non-

party’s medical information from discovery. Pac. Radiation

Oncology, LLC v. Queen’s Med. Ctr., 138 Hawaiʻi 14, 20, 375 P.3d

1252, 1258 (2016). It also protects a party’s private medical

information from public disclosure. Brende, 113 Hawaiʻi at 426,

153 P.3d at 1111. And, certain public records are protected by

statute from public disclosure. See, e.g., HRS § 338-18 (Supp.

2021) (protecting vital statistics records from disclosure).

On the current record, it is unclear whether any of these

privileges or legal protections are at issue or apply. The

civil court should consider and take necessary steps to restrict

the production or disclosure of protected information. The

civil court may decide to solicit briefing from the parties or

from non-parties possessing protected information on these

issues.

C. The Civil Court Should Consider Whether to Compel the Discovery Per HRCP Rule 26 Balancing

1. Brady and UIPA Are Not Relevant

Brady does not support or justify the circuit court’s

decision to allow discovery to proceed in the post-conviction

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proceeding. Brady requires prosecutors to turn over exculpatory

evidence to criminal defendants. It does not apply to civil

proceedings like the Schweitzers’ 661B compensation claim. The

court’s order denying HPD’s motion to quash, while referencing

due process principles, does not rely on any Hawaiʻi or federal

cases to extend Brady in this context.

As the Ninth Circuit reasoned:

The extent to which Brady-like obligations extend to civil cases is an open question. As the government acknowledges, Brady has been applied in the civil context when a substantial private interest is at stake, . . . or a civil matter is jointly investigated with a criminal prosecution . . . . But courts have only in rare instances found Brady applicable in civil proceedings, . . . such as when a person’s liberty is at stake.

Kashem v. Barr, 941 F.3d 358, 386-87 (9th Cir. 2019) (cleaned

up). Brady has been applied in some quasi-criminal contexts.

For instance, at least one state court has applied Brady-like

obligations to civil forfeiture cases. Foor v. Smith, 416 P.3d

858, 863 (Ariz. Ct. App. 2018). But the Schweitzers’ 661B case

is not quasi-criminal, like these examples. Ian and Shawn want

monetary damages for a wrong they assert was done to them.

Their compensation case is like ordinary civil litigation.

On this point, we agree with HPD. The Schweitzers are no

longer criminal defendants and their 661B petition is a civil

matter. Brady is sidelined. HRCP Rule 26 controls.

Hawaiʻi’s Uniform Information Practices Act, HRS Chapter 92F

is also inapplicable to civil discovery. HRS § 92F-3 (2012)

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exempts “nonadministrative functions of the courts of this

State” from UIPA. UIPA does not create the equivalent of a

discovery privilege to prevent disclosure of government records

in a lawsuit.

In a civil lawsuit the HRCP control discovery of any

matter, including government records. A party may obtain

discovery of any relevant evidence that is not privileged. HRCP

26(b)(1)(A). Hawaiʻi law only recognizes evidentiary privileges

spelled out in the Hawaiʻi Rules of Evidence (HRE) Rule 501,

codified at HRS § 626-1 (2016). That rule reads:

Rule 501. Privileges recognized only as provided

Except as otherwise required by the Constitution of the United States, the Constitution of the State of Hawaiʻi, or provided by Act of Congress or Hawaiʻi statute, and except as provided in these rules or in other rules adopted by the Supreme Court of the State of Hawaiʻi, no person has a privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

HRS § 626-1, Rule 501.

There are only five sources of an evidentiary privilege in

Hawaiʻi. The federal and Hawaiʻi Constitutions, federal and

Hawaiʻi statutes (including the HRE), and Hawaiʻi court rules.

Id. Rule 501’s commentary explains that the rule “closely

resembles” its California counterpart, and quotes the commentary

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to California’s rule: “privileges are not recognized in the

absence of statute.” However, unlike California, HRE 501

recognizes the authority of this court to adopt privileges by

rule.

HRE 501 reflects an understanding that privileges run

counter to the basic goal of discovery – uncovering the truth.

See, e.g., DiCenzo v. Izawa, 68 Haw. 528, 534-35, 723 P.2d 171,

175 (1986).

Nowhere does HRS Chapter 92F provide for any evidentiary

privilege. Accordingly, absent an evidentiary privilege, any

relevant evidence must be produced to the requesting party, and

exceptions in the UIPA are not valid grounds to object to

otherwise relevant discovery sought by a party in a civil case.

Exceptions to disclosure under the UIPA do not double as

exceptions to discovery. This court has held that statutes and

regulations governing public disclosure have no bearing on the

scope of discovery in civil litigation. See Tighe, 55 Haw. at

424, 520 P.2d at 1348. Exceptions under one scheme do not

simply port to the other.

This separation mirrors the distinct interests that UIPA

and the rules of discovery are designed to serve. Under UIPA,

the public interest in disclosure is weighed against competing

interests in nondisclosure. See, e.g., Peer News LLC v. City &

Cnty. of Honolulu, 138 Hawaiʻi 53, 61, 376 P.3d 1, 9 (2016). But

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under the HRCP, discovery is driven by the case’s needs, taking

into account the benefit and burden to each party. See HRCP

Rule 26(b)(2)(iii). Here, the Schweitzers want to remedy

injuries personal to them – it makes little sense to govern

their discovery request according to UIPA.

We conclude that UIPA neither creates an evidentiary

privilege nor applies to civil litigation. Therefore, it does

not protect information from discovery under HRE 501 and HRCP

Rule 26(b)(1)(A).

2. There Is No Qualified Law Enforcement Investigatory Privilege

“[T]here is no absolute privilege for police records that

would insulate such records from discovery process under the

H.R.C.P.” Tighe, 55 Haw. at 428, 520 P.2d at 1351. Similarly,

“[n]o absolute privilege insulates police records from

discovery” in a criminal case. State v. Estrada, 69 Haw. 204,

216, 738 P.2d 812, 821 (1987). Tighe discussed the policy

considerations at play:

Public interest in preservation of confidentiality and secrecy may be sufficient reason for insulation of police or other governmental records from discovery in special, individual cases, but such claims of privilege for such records on this basis require documentation and argument by the governmental agency asserting the privilege, and subsequent judicial evaluation of the claim of privilege.

Tighe, 55 Haw. at 422, 520 P.2d at 1346-47.

Following Tighe and Mehau, this court recognized a

“qualified privilege” for law enforcement investigatory

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materials. Kaneshiro, 67 Haw. at 446, 690 P.2d at 1308. We

clarify that HRE 501 abrogated this privilege. For cases

beginning after 1980, there is no qualified privilege.

Mehau repeated Tighe’s statements that (a) there is no

absolute law enforcement privilege (b) the public interest may

support secrecy in special cases, and (c) claims for

confidentiality require documentation and judicial evaluation.

Kaneshiro identified a conflict “between the right of parties to

litigation to discover the facts through the production of

documents not privileged from discovery, . . . and the

legitimate concerns, of governmental agencies charged with the

investigation of criminal activities, that the effectiveness of

those investigations not be impeded.” 67 Haw. at 446, 690 P.2d

at 1308. To address these concerns, Kaneshiro recognized a

“qualified privilege” for law enforcement agencies to withhold

their investigatory files. Id. Kaneshiro limited its reach to

“the unique factual situation” it faced. Id.

We clarify that this qualified privilege exists only for

cases that began before 1981. From 1981 forward, HRE 501

abrogated the common law qualified privilege that Mehau and

Kaneshiro recognized. The underlying proceedings in these two

cases, which this court decided in 1983 and 1984 respectively,

began before 1981. Mehau, 66 Haw. at 141, 658 P.2d at 319;

Kaneshiro, 67 Haw. at 445, 690 P.2d at 1307. So, they were in

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the pipeline of existing cases that could still be decided under

the former evidentiary rules. See HRS § 626-2 (2016). But for

cases post-1980, the HRE controls. See HRS § 626-3 (2016). As

of 1981, there is no qualified privilege for law enforcement

investigatory records in Hawaiʻi law.

The HRE took effect on January 1, 1981 and apply to all

actions beginning after that day. HRS § 626-2. The Rules

govern proceedings in our courts, with some exceptions not

relevant here. HRE 101.

By adopting the HRE, the Hawaiʻi legislature “disclaimed all

common law privileges that were not codified by statute.” Peer

News, 143 Hawaiʻi 472, 484 n.20, 431 P.3d 1245, 1257 n.20 (2018).

That includes Kaneshiro’s qualified privilege.

The HRE recognizes only one privilege related to law

enforcement agencies. HRE 510 establishes an identity of

informant privilege. HRE 510(a) provides a privilege for

government agencies “to refuse to disclose the identity of a

person who has furnished information relating to or assisting in

an investigation of a possible violation of law to a law

enforcement officer or member of a legislative committee or its

staff conducting an investigation.” This privilege is narrow.

HRE 510(c) provides three exceptions, including when the

informant may give testimony relevant to a material issue in the

case.

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Rule 510 does not imply a general investigatory privilege.

The rule applies only to “the identity of a person” and not

investigatory materials generally. Id. Its tight scope matches

the common law privilege it codified, which protects a specific

law enforcement interest: the effective use of informers. See

McCray v. Illinois, 386 U.S. 300, 307 (1967). The specificity

of its text and its common law ancestor, counsel against

extending HRE 510’s reach. HRE 510’s slimness suggests the

legislature took a narrower view of law enforcement privilege

than Kaneshiro did. HRE 501 and 510 signal that there is no

qualified law enforcement privilege.

Because there is no privilege, law enforcement

investigatory records are fully discoverable, subject to HRE

510. See HRCP Rule 26(b). But that doesn’t mean they are

unprotected. A party may request, and a judge shall consider,

whether a protective order balances a party’s right to

discoverable information with a law enforcement agency’s

legitimate need for confidentiality in an ongoing investigation.

3. Courts May Use Protective Orders to Guard Confidential Law Enforcement Investigatory Information

HRCP Rule 26 provides the tools for a trial court to

consider a law enforcement agency’s legitimate interests. The

lack of an investigatory privilege does not mean that discovery

will be unconcerned with the interest in effective law

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enforcement. Per Rule 26(c), a trial court may issue a

protective order to fulfill law enforcement needs.

The HRCP “reflect a basic philosophy that a party to a

civil action should be entitled to the disclosure of all

relevant information in the possession of another person prior

to trial, unless the information is privileged.” Mehau, 66 Haw.

at 155, 658 P.2d at 326. Rule 26(b) defines the scope of

discovery. It provides that, “[p]arties may obtain discovery

regarding any matter, not privileged, which is relevant to the

subject matter involved in the pending action.” HRCP Rule

26(b)(1)(A).

This broad discovery right is limited by the needs of the

case. A court may constrict discovery because it is cumulative,

available elsewhere, or the burden of producing it outweighs its

likely benefit, taking into account the needs of the case. HRCP

Rule 26(b)(2). Rule 26 requires “balanc[ing] the requesting

party’s need for information against the injury that might

result if uncontrolled disclosure is compelled.” See Brende,

113 Hawaiʻi at 431, 153 P.3d at 1116 (balancing interests).

Effective law enforcement is one interest the trial court should

consider in its balancing.

By way of a protective order, a trial court has broad

discretionary powers to balance discovery interests and protect

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confidential information. HRCP Rule 26(c), “Protective Orders”

allows the trial court, upon a motion, to:

[M]ake any order justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition, after being sealed, be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

HRCP Rule 26(c) (emphases added). Rule 26 provides judges

flexibility to craft an appropriate solution for each case. In

camera review is another appropriate tool. Estrada, 69 Haw. at

216, 738 P.2d at 821. As is a privilege log-type document. See

Kaneshiro, 67 Haw. at 449, 690 P.2d at 1310 (addressing indices

or synopses).

Rule 26(c) guides which law enforcement interests get a

spot on the discovery balancing scale. It directs courts to

limit discovery when necessary “to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or

expense” (emphasis added). Its primary concern is for harm to

parties or others whose interests are at stake, not the public

generally.

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Applied to this case, the court should consider the

Schweitzers’ discovery rights against HPD’s interests in

completing this particular investigation. The circuit court

should also consider the privacy interests of non-parties. See,

e.g., Pac. Radiation Oncology, 138 Hawaiʻi at 20, 375 P.3d at

1258. But it may not consider a more generalized or conclusory

law enforcement interest in confidentiality to prevent

For instance, the general interest in maintaining the

confidentiality of a police officer’s internal disciplinary file

is not sufficient to override a party’s discovery rights. See

Estrada, 69 Haw. at 217, 738 P.2d at 822. In Estrada, a

defendant convicted of attempted murder for shooting a police

officer appealed, in part, because the trial judge withheld the

officer’s internal disciplinary file from discovery. Id. at

206, 738 P.2d at 816. This court ruled that the incidents

described in the file were relevant to the defendant’s case.

Id. at 217, 738 P.2d at 822. So, this court summarized the

file’s contents and directed the trial judge to produce the

entire file to both parties. Id.

A party seeking a protective order must advance specific

facts and compelling reasons why protection is needed. Vague,

imprecise, or boilerplate assertions are not enough.

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What HPD has offered here will not do. HPD argued that the

Schweitzers are not entitled to the release of records at this

time because a release would “frustrate HPD’s legitimate

criminal investigative purpose and compromise the integrity of

the open criminal investigation” in which the Schweitzers are

still possible suspects. HPD worries, in a general way, that

disclosure might lead to witness tampering and loss of evidence.

At oral argument, the county prosecutors could not provide an

estimate of when HPD would finish its investigation.

In the civil case, HPD will have the opportunity to request

a protective order and augment its justifications for that

order. If HPD does not provide additional specificity, a

protective order is unwarranted. As this court has said,

“[p]ublic interest in preservation of confidentiality and

secrecy may be sufficient reason for insulation of police or

other governmental records from discovery in special, individual

cases, but such claims of privilege for such records on this

basis require documentation and argument by the governmental

agency asserting the privilege.” Tighe, 55 Haw. at 422, 520

P.2d at 1346-47. If the ongoing investigation bars discovery of

potentially exonerating evidence, the Schweitzers are stymied in

pursuing their case. They may be denied the compensation

Hawaiʻi’s wrongful conviction compensation law promises.

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The balance of a party’s right to discoverable information

and a law enforcement agency’s needs will shift over time.

Mehau, 66 Haw. at 156, 658 P.2d at 327. Mehau explained that

the need to maintain law enforcement confidentiality is “seldom

one of indefinite duration, for the underlying inquiry usually

has a reasonable terminus.” Id. (cleaned up). An investigation

cannot go on forever, and a party cannot indefinitely wait to

get documents related to its case. A law enforcement agency

must articulate a reasonable time constraint on the duration of

its proposed protective order. A judge must evaluate whether

the proposed time frame adequately balances the parties’ needs.

D. The Circuit Court’s Timeline Was Too Short

Last, we comment on the circuit court’s timetable for this

discovery dispute. For sure “trial courts have broad powers to

control the litigation process before them.” Weinberg v.

Dickson-Weinberg, 123 Hawaiʻi 68, 75, 229 P.3d 1133, 1140 (2010).

But here, the circuit court’s timeframe was overly

compressed. The Schweitzers informed the court about Lauro’s

death on Friday, July 26, 2024. The court instructed the

Schweitzers to file a motion to compel discovery and set a

hearing on that motion for Tuesday, July 30. That gave the

Schweitzers’ counsel roughly 48, mostly-weekend hours, until

Sunday, July 28, to file the motion. Then, the County had only

one day to respond.

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At the July 30 hearing, the court invited the Schweitzers

to submit a subpoena duces tecum due in two days, on August 1.

This gave HPD and CHOPA only 48 hours to collect and review the

requested materials. It gave the County’s lawyers only two days

to file a motion to quash. The County filed a motion to quash

on August 1. It filed a second motion to quash the next day, in

anticipation of an August 5 hearing.

We fail to see the reason for the circuit court’s breakneck

pace. Unlike the earlier petition for post-conviction relief –

which released Ian from custody – the Schweitzers’ discovery

request was only pertinent to their civil claim. While we

appreciate the circuit court’s commitment to a prompt

resolution, the rush was unnecessary under the circumstances.

Although circuit courts have broad discretion to control

the litigation process, a court should hesitate before ordering

very short deadlines on matters and motions raising major

issues. A slightly longer timeframe in this case would have

made things more manageable for the attorneys and law

enforcement, and allowed more time for the presentation of

important issues. The timelines the circuit court set in this

case between July 26 and August 1 were unreasonable.

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IV.

Petitioners must pursue their HRS Chapter 661B claims as a

separate civil case, and not within a HRPP Rule 40 post-

conviction proceeding.

We order the circuit court to quash the subpoena in the

Rule 40 case and transfer the Schweitzers’ HRS Chapter 661B

petition to a new civil case. The circuit court is directed to

vacate: (1) As to 3CSP-XX-XXXXXXX, the “Court Order Denying

Hawaiʻi Police Department’s Motion to Quash Subpoena Duces Tecum,

Filed on August 2, 2024,” filed on August 15, 2024; and, the

“Order Granting Motion to Compel Discovery Re: Joint Petition

for Relief Pursuant to HRS Chapter 661B,” filed on August 1,

2024; (2) as to 3CSP-XX-XXXXXXX, the “Court Order Denying Hawaiʻi

Police Department’s Motion to Quash Subpoena Duces Tecum, Filed

on August 2, 2024,” filed on August 15, 2024; and, the “Order

Granting Motion to Compel Discovery Re: Joint Petition for

Relief Pursuant to HRS Chapter 661B” filed on August 1, 2024.

The circuit court is further ordered to transfer the Joint

Petition for Relief Pursuant to HRS Chapter 661B filed in 3CSP-

XX-XXXXXXX and 3CSP-XX-XXXXXXX to a new civil case. The court

may not release the discovery in the completed post-conviction

proceedings, and any further determination on the release of

such records should be made by the presiding judge in the new

civil case. The circuit court shall also transfer all produced

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material held in its possession to this new civil case for

future decision on whether that discovery should be returned to

HPD, produced to the Schweitzers under protective conditions, or

produced to the Schweitzers and made available publicly.

E. Britt Bailey /s/ Mark E. Recktenwald for petitioner /s/ Sabrina S. McKenna Jennifer L. Brown, L. Richard /s/ Todd W. Eddins Fried, Jr., and William Harrison /s/ Lisa M. Ginoza for respondent Albert Ian Schweitzer /s/ Vladimir P. Devens

Keith S. Shigetomi for respondent Shawn Schweitzer

Shannon M. Kagawa for respondent State of Hawaiʻi