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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 20-DEC-2021 11:02 AM Dkt. 32 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o--- ________________________________________________________________
STEVEN S. ALM1, in his official capacity as the Prosecuting Attorney of the City and County of Honolulu, on behalf of the State of Hawaiʻi, Respondent/Petitioner-Appellant,
vs.
ELEVEN (11) PRODUCTS DIRECT SWEEPSTAKES MACHINES (TOTAL EXTIMATED VALUE: $38,500.00), FOUR HUNDRED FIFTY SEVEN DOLLARS IN UNITED STATES CURRENCY ($457.00); ONE (1) CAM SECURITY DIGITAL RECORDING SYSTEM (ESTIMATED VALUE: $200.00) (TOTAL AGGREGATE VALUE: $39,157.00), Respondent/Defendant-Appellee,
and
PJY ENTERPRISES, LLC, Petitioner/Claimant-Appellee,
WINNER’Z ZONE; APRIL WHITING-HARAGUCHI, TRACY YOSHIMURA, and WENDY WAGNER,
1 Pursuant to Hawaiʻi Rules of Appellate Procedure Rule 43(c)(1) (2019), Steven S. Alm has been substituted as a party in place of Keith M. Kaneshiro, the former Prosecuting Attorney of the City and County of Honolulu. *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Respondents/Interested Persons-Appellees. (CAAP-XX-XXXXXXX; S.P. NO. 14-1-0567)
SCWC-15-00008482
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX, S.P. NO. 14-1-0567; CAAP-XX-XXXXXXX, S.P. NO. 14-1-0568; CAAP-XX-XXXXXXX, S.P. NO. 14-1-0569; CAAP-XX-XXXXXXX, S.P. NO. 14-1-0570; CAAP-XX-XXXXXXX, S.P. NO. 14-1-0571; CAAP-XX-XXXXXXX, S.P. NO. 14-1-0572)
DECEMBER 20, 2021
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND WILSON, JJ.3
OPINION OF THE COURT BY WILSON, J.
This case addresses whether the Honolulu Police
Department’s (“HPD”) seizure of seventy-seven Product Direct
Sweepstakes (“PDS”) machines and the Office of the Prosecuting
Attorney’s subsequent petition for administrative forfeiture
comported with Hawai‘i=s civil forfeiture statute, Hawaii Revised
Statutes (“HRS”) Chapter 712A. In September 2012, HPD began
seizing PDS machines from six Winner’z Zone locations because it
deemed the machines to be in violation of Hawaiʻi’s gambling
2 CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, and CAAP-XX-XXXXXXX were previously consolidated in the Intermediate Court of Appeals (“ICA”) under CAAP-15- 0000848.
3 Associate Justice Richard W. Pollack who was a member of the court when oral argument was held, retired from the bench on June 30, 2020.
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statutes.4 The machines remained in police custody for nearly
two years. During that time, HPD did not initiate forfeiture
proceedings pursuant to HRS § 712A-7(3) (1991)5, did not give
notice of the seizure of forfeiture to all parties known to have
an interest in the property and did not provide the prosecutors
a written request for forfeiture as required by HRS §712A-7(4)
4 The relevant gambling statutes are HRS §§ 712-1222 and 712-1226 (1991). HRS § 712-1222 provides:
(1) A person commits the offense of promoting gambling in the second degree if the person knowingly advances or profits from gambling activity.
(2) Promoting gambling in the second degree is a misdemeanor.
HRS § 712-1226 provides:
(1) A person commits the offense of possession of a gambling device if the person manufactures, sells, transports, places, possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody, or use of any gambling device, knowing it is to be used in the advancement of gambling activity which is not social gambling.
(2) Possession of a gambling device is a misdemeanor.
5 HRS § 712A-7(3) provides:
As soon as practicable after seizure for forfeiture, the seizing agency shall conduct an inventory and estimate the value of the property seized. Within twenty days after seizure for forfeiture the seizing agency shall make reasonable efforts to give notice of seizure for forfeiture in the manner provided in section 712A-8(a) or 712A-8(b) to all parties known to have an interest in the seized property.
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(1991).6 Instead, in September 2014, HPD “re-seized” the
machines for forfeiture and began forfeiture proceedings.
Forfeiture proceedings were initiated on September 22, 2014, by
the prosecutor’s office.
We hold that a seizing agency’s failure to commence
forfeiture proceedings according to the specific timing
requirements set forth in HRS §§ 712A-7 and 712A-97 (1991)
requires the agency to return the seized property.
6 HRS § 712A-7(4) provides:
(4) In the event of a seizure for forfeiture under section 712A-6, the seizing agency shall send to a prosecuting attorney a written request for forfeiture within thirty days, which shall include a statement of facts and circumstances of the seizure, the appraised or estimated value of the property, and a summary of the facts relied on for forfeiture.
7 HRS § 712A-9 provides in relevant part:
(1) The prosecuting attorney shall determine whether it is probable that the property is subject to forfeiture and, if so, shall initiate administrative or judicial proceedings against the property within forty-five days of receipt of a written request for forfeiture from a seizing agency. If, on inquiry and examination, the prosecuting attorney determines, with sole discretion, that the proceedings probably cannot be sustained or that justice does not require the institution of proceedings, the prosecuting attorney shall notify the seizing agency, and as soon as practicable authorize the release of the seizure for forfeiture on the property or on any specified interest in it. A determination by the prosecuting attorney to forego initiation of proceedings shall not be a bar to initiation of proceedings against the same property based on the same circumstances at a later time.
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I. Background
A. Factual Background
On September 26, 2012, HPD obtained a search warrant
to search six Winner’z Zone business locations for property held
in violation of Hawaiʻi’s gambling statutes, HRS §§ 712-1222 and
712-1226. The following day, on September 27, 2012, HPD began
executing the search warrant at each location. HPD seized
seventy-seven PDS machines, in addition to other items it deemed
violated Hawaiʻi’s gambling statutes that was authorized by the
search warrant.
The PDS machines remained in HPD custody for nearly
two years before HPD began forfeiture proceedings. HPD
cancelled the investigation for the initial HPD report number
that documented the seizure for forfeiture “[d]ue to time
constraints.” After the investigation was cancelled, the
machines remained in police custody. On September 12, 2014, a
new HPD report number was issued by HPD stating that the PDS
machines were re-seized for forfeiture.8
8 The Prosecuting Attorney asserted in the Petition for Administrative Forfeiture filed with the Department of Attorney General on September 22, 2014, that HPD cancelled its 2012 investigation (HPD report number 12-351453) due to time constraints and that the property was re-seized under HPD report number 14-332134.
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Seven days later, on September 19, 2014, HPD sent a
request for forfeiture to the Office of the City and County of
Honolulu Prosecuting Attorney (“prosecutor’s office”). On
September 22, 2014, pursuant to HRS § 712A-9, the prosecutor’s
office began administrative forfeiture proceedings by filing a
petition for administrative forfeiture with the Department of
the Attorney General. Petitioner/Appellee-Claimant, PJY
Enterprises, LLC (“PJY”) challenged the seizure on November 3,
2014,9 by filing a claim to the seized property and a request for
judicial review of administrative forfeiture.10
9 PJY previously challenged the seizure on October 12, 2012, by filing a complaint for declaratory judgment, injunctive relief, and monetary damages against HPD in the circuit court. That case was removed to federal court. On April 30, 2014, the federal court granted a motion for summary judgment in favor of the Prosecuting Attorney, finding that the PDS machines constituted gambling devices under the Hawaii gambling statutes.
10 HRS § 712A-10(9)(1991) provides that an individual claiming seized property may request judicial review of a forfeiture:
(9) Any person claiming seized property may seek judicial review of the seizure and proposed forfeiture by timely filing with the attorney general a claim and bond to the State . . . . In lieu of a cost bond, a claimant may file an in pauperis bond sworn on oath before a notary public . . . . Upon receipt of the claim and bond, the attorney general shall notify the prosecuting attorney who may discretionarily continue to seek forfeiture by petitioning the circuit court for forfeiture of the property within forty-five days of receipt of notice that a proper claim and bond has been filed. The prosecuting attorney may also elect to honor the claim in which case the prosecuting attorney shall notify the seizing agency and authorize the release
(continued . . .)
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In response to PJY=s request for judicial review of the
forfeiture, on December 19, 2014, the prosecutor’s office began
judicial forfeiture proceedings by filing a verified petition
for forfeiture in the circuit court pursuant to HRS § 712A-9.
In the petition for forfeiture, the prosecutor’s office asserted
that “the subject property was initially seized for forfeiture
on or about September 27, 2012” and then “re-seized for
forfeiture on or about September 12, 2014”. It was also
asserted that the seized property was subject to forfeiture
because the property was used in the commission of a covered
offense. The prosecutor’s office requested that the property be
distributed to the attorney general in accordance with
HRS § 712A-16(2) (2003).11 PJY filed a motion to dismiss the
verified petition for forfeiture. The prosecutor’s office
opposed the motion.
(. . . continued)
of the seizure for forfeiture on the property or on any specified interest in it.
11 Forfeited property is distributed according to HRS § 712A-16(2):
(2) All forfeited property and the sale proceeds thereof, up to a maximum of three million dollars per year, not previously transferred pursuant to [subsection] (1)(a) of this section, shall, after payment of expenses of administration and sale, be distributed as follows:
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The Circuit Court of the First Circuit (“circuit
court”) granted PJY=s motion to dismiss the verified petition for
forfeiture and granted in part PJY’s alternative motion for
summary judgment.12 The circuit court dismissed the verified
petition because the prosecutor’s office failed to comply with
the time limitations under HRS § 712A-1713 and HRS § 701-108(2).14
(a) One quarter shall be distributed to the unit or units of state or local government [whose] officers or employees conducted the investigation and caused the arrest of the person whose property was forfeited or seizure of the property for forfeiture;
(b) One quarter shall be distributed to the prosecuting attorney who instituted the action producing the forfeiture; and
(c) One half shall be deposited into the criminal forfeiture fund established by this chapter.
12 The Honorable Randal K.O. Lee presided.
13 HRS § 712A-17 provides:
“Notwithstanding any other provision of law, forfeiture proceedings under this chapter may be commenced at any time within the period in which a criminal proceeding may be instituted for a covered offense pursuant to section 701-108.”
14 HRS § 701-108(2)(e) provides:
(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:
. . . .
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The circuit court also granted summary judgment in part after
concluding that there was no genuine issue of material fact as
to the prosecutor’s office’s violation of this time limitation
under HRS § 701-108(2) and that PJY was entitled to a judgment
as a matter of law. The State appealed.
B. ICA Decision
The ICA vacated the circuit court’s decision and
remanded for further proceedings. According to the ICA, the
circuit court incorrectly interpreted Chapter 712A to require
that both the administrative petition and the judicial petition
be filed within the two-year statute of limitations delineated
in HRS § 712A-17. The ICA held that although the Prosecutor
failed to file the judicial petition within the two-year statute
of limitations, the petition was nevertheless timely because the
administrative petition was filed within the statute of
limitations. Under this analysis, the ICA held that where a
prosecuting attorney files a qualifying claim for forfeiture
pursuant to HRS § 712A-9 and requests judicial review of an
administrative petition, the prosecuting attorney may
(e) A prosecution for a petty misdemeanor or parking violation must be commenced within two years after it is committed[.]
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“discretionarily continue to seek forfeiture by petitioning the
circuit court for forfeiture of the property[.]” HRS § 712A-
10(10) provides that “no duplicate or repetitive notice shall be
required. The judicial proceeding, if any, shall adjudicate all
timely claims.” Reading these two provisions together, the ICA
held that the judicial proceeding is a continuation of a
preexisting administrative proceeding pursuant to HRS § 712A-
9(1) and “bringing the administrative petition within the
statute of limitations period satisfies that requirement.”
Having determined that the prosecuting attorney did
not violate the statute of limitations, the ICA considered the
timing requirements of HRS §§ 712A-7 and 712A-9. As interpreted
by the ICA, these provisions require HPD to send a request for
forfeiture to the prosecuting attorney within thirty days of
seizure and require the prosecuting attorney to determine
whether the property is likely subject to forfeiture pursuant to
HRS § 712A-5 and, if so, to file the petition for forfeiture
within forty-five days of the request. The ICA asserted that
the first seizure by HPD occurred on September 27, 2012;
accordingly the ICA concluded that HPD failed to meet these
statutory deadlines mandated by HRS §§ 712A-7 and 712A-9 because
HPD failed to make reasonable efforts to give notice of seizure
within twenty days to all parties who were known to have an
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interest in the seized property.15 However, the ICA ruled that
the failure of HPD to file petitions to begin forfeiture
proceedings within forty-five days in accordance with HRS §§
712A-7 and 712A-9 was not sanctionable because those provisions
do not provide penalties for their violation. The ICA held that
“failure to comply with the internal deadlines contained in HRS
§ 712A will not serve as a bar for [a] petition brought within
the limitation provision continued in HRS § 712A-17.”
Pursuant to HRS § 712A-17, forfeiture proceedings
must be commenced within the statute of limitations to file the
covered offense. In the present case, the covered offenses were
misdemeanors. Therefore, prosecution must have commenced within
two-years pursuant to HRS § 701-108(2)(e). The ICA thus
concluded that the two-year statute of limitations contained in
HRS § 712A-17--rather than the statutory deadlines contained in
HRS §§ 712A-7(3)16 and 712A-9(1)17--establish the time by which
15 If September 27, 2012 is the seizure for forfeiture date, HPD took the actions required pursuant to HRS § 712A-7 and HRS § 712A-9 nearly two years after the seizure by notifying the prosecutor’s office. On September 19, 2014, a request for forfeiture was sent to the prosecuting attorney. The prosecutor’s office filed a petition for administrative forfeiture on September 22, 2014.
16 HRS § 712A-7 provides:
(3) . . . Within twenty days after seizure for forfeiture the seizing agency shall make reasonable
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HPD and the prosecutor’s office must initiate forfeiture
actions. The ICA relied on United States v. James Daniel Good
Real Prop., 510 U.S. 43 (1993). In Good, the United States
Supreme Court found that, because the customs statute containing
forfeiture timing requirements did not provide a remedy for the
government’s noncompliance, and because a statute of limitations
already existed to prevent stale claims from being brought, the
customs statute’s forfeiture timing requirements were simply
internal timing requirements that could not be enforced by the
Court. 510 U.S. at 65. The ICA found HRS Ch. 712A to be
analogous to the customs statute at issue in Good. The ICA
efforts to give notice of seizure for forfeiture in the manner provided in section 712A-8(a) or 712-8(b) to all parties known to have an interest in the seized property.
(4) In the event of a seizure for forfeiture under section 712-6, the seizing agency shall send to a prosecuting attorney a written request for forfeiture within thirty days, which shall include a statement of facts and circumstances of the seizure, the appraised or estimated value of the property, and a summary of the facts relied on for forfeiture.
17 HRS § 712A-9(1) provides:
“The prosecuting attorney shall determine whether it is probable that the property is subject to forfeiture and, if so, shall initiate administrative or judicial proceedings against the property within forty-five days of receipt of a written request for forfeiture from a seizing agency . . .”
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stated that HRS Ch. 712A similarly lacks a remedy for
noncompliance with the forfeiture timing requirements, and also
provides a statute of limitations to prevent stale claims. The
ICA characterized HRS §§ 712A-7 and 712A-9 as providing
unenforceable internal timing requirements analogous to the
customs statute in Good. Accordingly, the ICA concluded that
the circuit court erred in its application of the time
limitations of Section 712A-7 and 712A-9 to the September 27,
2012, seizure by HPD. The ICA vacated the circuit court’s order
granting PJY Enterprises, LLC’s motion to dismiss the verified
petition for forfeiture and/or in the alternative granting PJY’s
Enterprises, LLC’s motion for summary judgment. Further, the
ICA vacated the final judgment of the circuit court dated
October 8, 2015 dismissing the case and remanded for further
proceedings.
II. Standard of Review
The interpretation of a statute is a question of law reviewable de novo.
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
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Ka Paakai O Kaaina v. Land Use Comm’n, 94 Hawaii 31, 41, 7 P.3d
1068, 1078 (2000) (internal quotation marks and citations
omitted) (quoting Amantiad v. Odum, 90 Hawaii 152, 160, 977 P.2d
160, 168 (1999)).
III. Discussion
HPD seized PJY’s seventy-seven machines on September
27, 2012, and took no action to inform Petitioner of the
seizure, or request the prosecutor’s office to seek forfeiture
until it sent a request for forfeiture to the prosecutor’s
office on September 19, 2014--nearly two years after the initial
seizure.18 The ICA relied upon HRS § 712A-17 to conclude that
the sole time limitation on the government’s use of forfeiture
is the statute of limitation applicable to the offense for which
the forfeited evidence is to be used. HRS § 712A-17 states in
pertinent part: “Notwithstanding any other provision of law,
forfeiture proceedings under this chapter may be commenced at
any time within the period in which a criminal proceeding may be
instituted for a covered offense pursuant to section 701-108.”
Under this analysis, the time limitations contained in
HRS §§ 712A-7(4) or 712A-9(1) become merely internal deadlines
18 The prosecuting attorney consequently did not initiate forfeiture proceedings until September 22, 2014.
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with no prescriptive effect. PJY would have no recourse for the
return of its property until the expiration of the two-year
statute of limitations applicable to the underlying offenses of
Gambling in the Second Degree in violation HRS § 712-1222 and
Possession of a Gambling Device in violation of HRS § 712-1226.
Thus, the failure of HPD, as the “seizing agency” to “make
reasonable efforts to give notice of seizure for forfeiture . .
. within thirty days of seizure,” pursuant to HRS § 712A-7(3)
and to “send to a prosecuting attorney a written request for
forfeiture within thirty days” after the property was seized,
pursuant to HRS § 712A-7(4); and the failure of the prosecuting
attorney to “initiate administrative or judicial proceedings
against the property within forty-five days” of receipt of HPD’s
request for forfeiture, pursuant to HRS § 712A-9(1) are of no
consequence to the continued deprivation of PJY’s property by
HPD.
The legislative history of HRS Chapter 712A
contradicts the ICA’s proposition that legislative intent was to
render unenforceable the forfeiture deadlines set forth in HRS
§§ 712A-7 and 712A-9. In 1991, the legislature reinstated the
timing requirements of HRS § 712A-9 to “require[] the prosecutor
to initiate forfeiture proceedings within forty-five days of
receipt of written request for forfeiture or to return the
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property seized.” S. Stan. Comm. Rep. No. 1049, in 1991 Senate
Journal, at 1117.19 In so doing, the legislature made explicit
its intent that the remedy for noncompliance with HRS § 712A-9’s
deadlines was the return of the property.
That the legislature intended the remedy for
noncompliance with the timing deadlines of forfeiture to be the
return of the property is further supported by the deadlines
applicable to an individual claiming an interest in forfeited
property. Pursuant to HRS § 712A-10(4), a claim of interest
must be made within thirty days of notice of the seizure.20 HRS
19 In 1988 the legislature enacted Act 260 which amended HRS § 712A- 9(1) to state:
The prosecuting attorney shall determine whether it is probable that the property is subject to forfeiture and, if so, may cause the initiation of administrative or judicial proceedings against the property. If, on inquiry and examination, the prosecuting attorney determines that the proceedings probably cannot be sustained or that justice does not require the institution of such proceedings, the prosecuting attorney shall notify the seizing agency, and as soon as practicable authorize the release of the seizure for forfeiture on the property or on any specified interest in it.
1988 Haw. Sess. Laws Act 260, § 9 at 461.
20 HRS § 712A-10(4) provides in relevant part:
Persons claiming an interest in the property may file either a petition for remission or mitigation of forfeiture, or a claim and cost or in pauperis bond, but not both, with the attorney
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§ 712A-10(4) does not explicitly prohibit a claim of interest
after the thirty day deadline; however, it would be contrary to
the intended purpose of the deadline to conclude that the State
would not be subject to a claim of interest on the forfeited
property until after the thirty day limitation stated in HRS §
712A-10(4). Similarly, the logical consequence of the State’s
failure to commence forfeiture proceedings within the deadlines
delineated in HRS §§ 712A-721 and 712A-922 is the return of seized
property.
Finally, the ICA’s reliance by on the United States
Supreme Court’s decision in Good to conclude that the deadlines
enumerated in HRS § 712A-7 and § 712A-9 are internal deadlines
and failure to comply with these deadlines “will not serve as a
bar for a petition [for forfeiture]” is misplaced. In Good,
because the customs statute at issue did not provide a remedy
general, within thirty days of notice by publication or receipt of written notice, whichever is earlier.
21 The seizing agency must also “send to a prosecuting attorney a written request for forfeiture within thirty days” after the property is seized. HRS § 712A-7(4)(emphasis added).
22 Once the prosecuting attorney receives the written request, the prosecuting attorney “shall initiate administrative or judicial proceedings against the property within forty-five days.” HRS § 712A-9(1)(emphasis added).
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for failure to comply with the provision, the Court interpreted
the statute to be an internal guideline rather than one
enforceable by the courts. 510 U.S. at 64-65. The Court
explained that, because the statute lacked a consequence for
noncompliance, Congress impliedly left enforcement to the
administering officials. Here, the legislative history of HRS §
712A-9 explicitly provides that the seizing agency must return
the seized property if the State fails to follow HRS § 712A-9.
IV. Conclusion
In conclusion, the failure of HPD and the Prosecutor
to comply with the twenty day and forty-five day statutory
deadlines contained in HRS §§ 712A-7 and 712A-9 applicable to
seizure of Petitioner’s property require its return.
Accordingly, we vacate the ICA’s July 31, 2017 Judgment on
Appeal, and remand the case to the circuit court for further
proceedings consistent with this opinion.
Keith M. Kiuchi /s/ Mark E. Recktenwald for petitioner/claimant- appellee /s/ Paula A. Nakayama
Kurt Y. Nakamatsu /s/ Sabrina S. McKenna for respondent/plaintiff- appellant /s/ Michael D. Wilson