Tominaga v. Administrative Director of the Courts

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-JUN-2023
07:52 AM
Dkt. 39 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JOEN TOMINAGA, Petitioner-Appellant, v.
ADMINISTRATIVE DIRECTOR OF THE COURTS,
STATE OF HAWAI#I, Respondent-Appellee

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DAA-21-00001)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)

Petitioner-Appellant Joen Tominaga (Tominaga) appeals
from the Decision and Order Affirming Administrative Revocation
(Decision and Order), entered on October 20, 2021, in the
District Court of the First Circuit, Honolulu Division (District
Court).1/ For the reasons explained below, we reverse.

I. Background

On March 6, 2021, Tominaga was arrested for Operating a
Vehicle Under the Influence of an Intoxicant, pursuant to Hawaii
Revised Statutes (HRS) § 291E-61(a).2/ The arresting officer,

1/
The Honorable Kristine Y. Yoo presided.
2/
HRS § 291E-61(a) (2020) provides in relevant part:
Operating a vehicle under the influence of an
intoxicant. (a) A person commits the offense of operating a
vehicle under the influence of an intoxicant if the person
operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
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Honolulu Police Department (HPD) Officer Dannan Smith (Officer
Smith), issued a Notice of Administrative Revocation of
Tominaga's driver's license.
On March 11, 2021, the Administrative Driver's License
Revocation Office (ADLRO) issued a Notice of Administrative
Review Decision, which sustained the revocation of Tominaga's
driver's license for a one-year period from April 6, 2021, to
April 5, 2022. Tominaga made a timely request for an
administrative hearing to dispute the revocation. She also
requested a copy of the "[e]ntire case file." See HRS § 291E-
37(f)(5) (2020).3/
On March 15, 2021, in response to the latter request,
the ADLRO emailed 27 pages of materials to Tominaga's counsel.
It appears that the ADLRO later acknowledged – after the record
was closed and the administrative hearing decision was issued –
that the materials provided to Tominaga were missing a page.
See infra note 6 and accompanying text. Specifically, it appears
that the materials did not include page one of the two-page
Incident Report of HPD Sergeant Steven Chun (Sergeant Chun), who
conducted the traffic stop of Tominaga's vehicle prior to her
arrest.
The ADLRO scheduled the administrative hearing for
April 1, 2021, to be held telephonically due to the COVID-19

mental faculties or ability to care for the
person and guard against casualty;
. . . .
(3) With .08 or more grams of alcohol per two
hundred ten liters of breath[.]
3/
HRS § 291E-37(f) (2020) provides, in relevant part:
(f) If the director administratively revokes the
respondent's license and privilege to operate a vehicle,
. . . [t]he written review decision shall:

. . . .
(5) Inform the respondent of the right to review and
copy all documents considered at the review,
including the arrest report and the sworn
statements of law enforcement officers or other
persons, prior to the [administrative] hearing
[to review the director's decision.]"

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pandemic. Tominaga objected to telephonic testimony and
requested a continuance of the hearing. The hearing was
continued to June 25, 2021. Tominaga subpoenaed Sergeant Chun,
Officer Smith, Officer Drae Moon (Officer Moon), Sergeant Michael
Noh (Sergeant Noh), and Sergeant Thomas Cummings (Sergeant
Cummings) to appear at the hearing.
The June 25, 2021 hearing was held via Zoom due to the
pandemic. All of the documents in the case file were admitted
into evidence. All subpoenaed officers appeared except for
Sergeant Cummings. Tominaga examined Sergeant Noh and waived the
testimony of Sergeant Chun, Officer Moon, and Officer Smith. In
closing argument, Tominaga argued, among other things, that the
evidence did not support reasonable suspicion to stop Tominaga's
vehicle on the night of her arrest:

Based on the reports that I have from [Sergeant] Chun
he was the stopping officer. And, as far as I could see
. . . no traffic violations of any sort in the incident
report. I just see that . . . he comes to her vehicle and
he's speaking to her. So, I don't see how there's any
reasonable suspicion to even stop Miss Tominaga based upon
that.

On June 29, 2021, Respondent-Appellee Administrative
Director of the Courts (Director), through an ADLRO hearing
officer, issued a Notice of Administrative Hearing Decision,
which affirmed the ADLRO's March 11, 2021 Notice of
Administrative Review Decision and amended the revocation end
date to June 25, 2022.4/ The hearing officer's Findings of Fact,
Conclusions of Law, and Decision (ADLRO Decision) were also
issued on June 29, 2021. The hearing officer determined, among
other things, that there was reasonable suspicion to stop the
vehicle operated by Tominaga, concluding in part: "[T]he record
establishes that [Sergeant] Chun observed [Tominaga] commit the
traffic violation of disregarding lane markings under HRS § 291C-
38, not once, not twice, but three times. [Tominaga] illegally

4/
The revocation end date was so amended to reflect the extension of
Tominaga's temporary driver's permit from April 6, 2021 to June 25, 2021.
Although the revocation end date was June 25, 2022, the "capable of
repetition, yet evading review" exception to the mootness doctrine applies to
this appeal. See Slupecki v. Admin. Dir. of the Courts, 110 Hawai #i 407, 409
n.4, 133 P.3d 1199, 1201 n.4 (2006).

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crossed the white single solid lane marking separating lane 3 and
the right side curb multiple times[.]"5/
On July 21, 2021, Tominaga's counsel submitted a
Supplemental Declaration to the ADLRO stating in part that
because "Sergeant Chun's testimony was waived[,] the only
evidence for consideration from Sergeant Chun would be his police
report submitted to the ADLRO[,]" and "[FOFs] 1-6 [in the ADLRO
Decision] do not comport with the copy of Sergeant Chun's police
report received by Counsel from the ADLRO." Counsel also stated
that he relied on what was provided by the ADLRO as the purported
"[e]ntire case file," and those materials did not include any
sworn statements related to the stop of Tominaga's vehicle.
Page two of the administrative record appears to be a
summary "FOR ADLRO OFFICE USE ONLY" of actions taken and other
comments regarding Tominaga's case (ADLRO Summary). The ADLRO
Summary includes a handwritten note dated "7/22/21," which
appears to state the following:

5/
The hearing officer also made the following relevant findings of
fact (FOFs):

1. On March 5, 2021, at approximately 11:49 p.m.
while driving in lane 3 of 3 on Fort Weaver Road southbound
prior to Kolowaka Drive, [Sergeant] Chun observed the
passenger side tires of a Honda Accord (Vehicle) travel
approximately one foot over the white single solid lane
marking separating lane 3 from the right side curb for 2
seconds, then swerve back into lane 3 in a snake-like
motion.
2. The Vehicle then again traveled approximately one
foot over the white single solid lane marking separating
lane 3 from the right side curb, then swerved back into lane
3.

3. Then for the third time, the Vehicle again swerved
approximately one foot over the white single solid lane
marking separating lane 3 from the right side curb.
4. The vehicle was the only vehicle on the roadway
traveling ahead of [Sergeant] Chun so he had a clear and
unobstructed view of the traffic violations.
5. [Sergeant] Chun conducted a traffic stop of the
Vehicle.
6. [Sergeant] Chun identified himself to the driver
of the Vehicle (subsequently identified as [Tominaga]),
informed her of the reason for the stop and asked for her
license, registration, and insurance.

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Supplemental Declaration reviewed. Nothing requested in
Supp. Decl. Counsel was provided page 2 of 2 of Chun's rpt,
as well as the traffic citation issued by Chun, which both
are sworn stmts. Counsel did not disclose missing page at
hearing and instead waived the testimony of Chun, Moon &
Smith. Counsel only had Noh testify. Counsel should have
been aware of the missing page, but failed to raise the
issue at hearing.

This note appears to acknowledge that the materials provided to
Tominaga by the ADLRO were missing page one of Sergeant Chun's
report.6/
On July 27, 2021, Tominaga filed a Petition for
Judicial Review (Petition) in the District Court, requesting that
the court reverse the driver's license revocation. Tominaga
contended in part that the ADLRO erroneously found that there was
reasonable suspicion to stop her vehicle. Tominaga further
alleged that she relied on what was provided by the ADLRO as the
purported "entire case file[,]" and those materials did not
establish any violation that would justify the stop of her
vehicle.
The District Court heard the Petition on August 31,
2021, and entered the Decision and Order on October 20, 2021.
The court concluded that the ADLRO did not exceed its
constitutional or statutory authority, erroneously interpret the
law, act in an arbitrary or capricious manner, or commit an abuse
of discretion. The District Court also concluded that the
ADLRO's determination was supported by the evidence in the record
and, specifically, that "the record on appeal supports
[Director's] finding that [Sergeant] Chun had specific
articulable facts that support reasonable suspicion to perform a
traffic stop in this case." In this regard, the District Court
also stated:

[Tominaga] argues that the facts in [Tominaga's] copy
of [Sergeant] Chun's report did not establish the reasonable
suspicion to stop [Tominaga's] vehicle and conjectures that
[Director] had access to material which were [sic] not made
available to [Tominaga]. However, [Tominaga] has failed to
show any evidence in support of her argument that her copy

6/
On appeal, the Director does not contest the authenticity of the
note or the fact that the materials provided to Tominaga by the ADLRO were
missing page one of Sergeant Chun's report. Rather, the answering brief
"[a]ssume[s] that omission of the page in the copy provided to [Tominaga] was
unintentional (as there is nothing to suggest intentionality)[.]"

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of [Sergeant] Chun's report lacked the facts to establish
the reasonable suspicion to stop [Tominaga's] vehicle.
Without the specific information that was provided to
[Tominaga] by ADLRO, and having reviewed the record on
appeal, this court concludes [Director's] findings were
supported by evidence.

This secondary appeal followed. Tominaga contends that
the District Court erred: (1) in concluding there was no
evidence in the record to support Tominaga's position that the
version of the case file transmitted to her by the ADLRO did not
contain facts establishing reasonable suspicion to stop her
vehicle; and (2) in affirming the revocation of Tominaga's
license, where the procedures used by the ADLRO in this case
denied her due process.

II. Discussion

Our review of the District Court's Decision and Order
is a secondary appeal; we must determine whether the District
Court was right or wrong in its review of the ADLRO Decision.
Wolcott v. Admin. Dir. of the Courts, 148 Hawai#i 407, 413, 477
P.3d 847, 853 (2020).
As to Tominaga's first point of error, she contends
there was substantial evidence supporting her position that the
version of the case file she received from the ADLRO did not
contain facts establishing reasonable suspicion. Specifically,
she points out that the administrative record included the ADLRO
Summary, which acknowledges in a handwritten note that the
materials provided to Tominaga were missing a page from Sergeant
Chun's report. Tominaga further contends that the materials
provided to her by the ADLRO did not contain facts related to the
stop of her vehicle.
The Director does not dispute that Tominaga requested
"the entire case file" from the ADLRO or that the materials
provided to Tominaga were missing a page, i.e., the first page of
Sergeant Chun's report. There is also no dispute that the
administrative record before the District Court included the
ADLRO Summary, which acknowledges the omission. Further, the
Director does not contest Tominaga's contention that the version
of the case filed provided to her by the ADLRO, i.e., missing the

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first page of Sergeant Chun's report, did not contain facts to
establish reasonable suspicion to stop Tominaga's vehicle. Our
review of the record confirms that without the missing page, the
materials provided to Tominaga would not have contained evidence
supporting the District Court's finding of reasonable suspicion.
Accordingly, the District Court erred in concluding there was no
evidence to support Tominaga's contention that the copy of the
case file provided to her by the ADLRO did not contain facts
establishing reasonable suspicion to stop her vehicle.
In her second point of error, Tominaga contends that
the procedures used by the ADLRO in this case denied her due
process. Specifically, she argues that the ADLRO's failure to
provide the portion of the case file that established reasonable
suspicion for the stop of Tominaga's vehicle denied her a
meaningful opportunity to challenge the evidence of reasonable
suspicion.
In Wolcott, the supreme court held that the procedures
used by the ADLRO in that case, namely, sending the driver whose
license had been revoked a "cryptic and unclear computer
printout" indicating prior alcohol enforcement contacts, which an
ADLRO hearing officer considered in determining the length of the
driver's license revocation period, denied him due process. 148
Hawai#i at 409-10, 477 P.3d at 849–50. The court first
recognized that "a driver's license is a constitutionally
protected interest and due process must be provided before one
can be deprived of his or her license." Id. at 414, 477 P.3d at
854 (brackets omitted) (quoting Slupecki, 110 Hawai#i at 413, 133
P.3d at 1205). The court then analyzed the due process issue
under the following familiar framework:

"[D]ue process is flexible and calls for such
procedural protections as the particular situation demands."
Kernan[ v. Tanaka], 75 Haw. [1,] 22, 856 P.2d [1207,] 1218
[(1993)] (quoting Mathews v. Eldridge, 424 U.S. 319, 334, 96
S. Ct. 893, 47 L. Ed. 2d 18 (1976)). The appropriate
process

requires consideration of three distinct factors: [1]
the private interest that will be affected by the
official action; [2] the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and [3] the

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government's interest, including the function involved
and the fiscal or administrative burdens that the
additional procedures would entail.
Id. at 22-23, 856 P.2d at 1218-19 (quoting Mathews, 424 U.S.
319, 334-35, 96 S. Ct. 893). Providing a presuspension
revocation hearing is presumed to "sufficiently assure
reliable results and provide adequate due process." Farmer[
v. Admin. Dir. of the Courts], 94 Hawai#i [232,] 239, 11
P.3d [457,] 464[ (2000)]. However, as the United States
Supreme Court has observed, "manifestly there is no hearing
when the party does not know what evidence is offered or
considered, and is not given an opportunity to test,
explain, or refute." Interstate Commerce Comm'n v.
Louisville & N.R. Co., 227 U.S. 88, 93, 33 S. Ct. 185, 57 L.
Ed. 431 (1913).

Id.
Applying the Mathews factors here, first, it is clear
that revocation of Tominaga's driver's license "raises
significant due process property interests." Id. (citing
Slupecki, 110 Hawai#i at 413, 133 P.3d at 1205).
Second, the procedures used to revoke Tominaga's
driver's license, namely, emailing to her counsel, who had
requested her "entire case file," a version of the file that
omitted (we assume unintentionally) a page of Sergeant Chun's
report, are insufficient in light of the risk of an erroneous
deprivation of Tominaga's driver's license for a one-year period.
Without the missing page, the materials provided to Tominaga did
not contain facts to establish reasonable suspicion to stop
Tominaga's vehicle. Additionally, it appears that the existence
of the missing page only came to light after the administrative
hearing and after the issuance of the ADLRO Decision, which
referenced facts about the traffic stop that were not included in
the materials provided to Tominaga and not reflected in the
testimony at the hearing. The failure of the ADLRO to provide
Sergeant Chun's complete report to Tominaga in these
circumstances denied her a meaningful opportunity to challenge
the evidence of reasonable suspicion. Accordingly, the
procedures that the ADLRO used presented a high risk of an
erroneous deprivation of Tominaga's constitutionally protected
property interest.
Third, while the government has a substantial interest
in ensuring that Hawaii's roads are kept safe from alcohol-
impaired drivers, the administrative burden of providing a copy

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of the entire case file of a respondent who requests it in
similar circumstances is not so high as to outweigh a driver's
constitutionally protected property interest. See Wolcott, 148
Hawai#i at 415, 477 P.3d at 855.
We reject the Director's argument that there is no due
process issue here because "[Tominaga's] counsel chose not to
request the missing page from ADLRO prior to the hearing, [and]
chose not to disclose the missing page at the hearing[.]" The
Director cites no evidence in the record supporting these
assertions, and we have found none. Moreover, in these
circumstances, where Tominaga requested a copy of her "entire
case file" and the ADLRO purported to provide it, the burden was
on the ADLRO to include Sergeant Chun's complete report. See HRS
§ 291E-37(f); cf. McGrail v. Admin. Dir. of the Courts, 130
Hawai#i 74, 82, 305 P.3d 490, 498 (App. 2013) ("[T]he
administrative revocation process places the burden on the
government to establish a prima facie case for revocation,
including that reasonable suspicion existed to stop the
respondent's vehicle, before the respondent has any burden to
present evidence." (citing Kernan, 75 Haw. at 30, 856 P.2d at
1222)).7/
On this record, we conclude that Tominaga was denied
due process when the ADLRO determined there was reasonable
suspicion to stop her vehicle, because the materials provided by
the ADLRO to Tominaga were missing a page from Sergeant Chun's
report and thereby failed to provide Tominaga with sufficient
notice of the evidence related to the reasonable suspicion issue.
See Wolcott, 148 Hawai#i at 415, 477 P.3d at 855. Accordingly,
we hold that the District Court's Decision and Order affirming
the one-year revocation of Tominaga's driver's license was wrong,
because it was based on the ADLRO's improper reliance on evidence
of reasonable suspicion of which Tominaga did not receive
adequate notice. See id.

7/
We also reject the Director's argument that Tominaga introduced
error into the administrative proceedings by waiving the testimony of Sergeant
Chun. It was the ADLRO's burden to establish a prima facie case for
revocation, including that reasonable suspicion existed to stop Tominaga's
vehicle. See McGrail, 130 Hawai#i at 82, 305 P.3d at 498. Tominaga had no
duty to fill in what she perceived to be evidentiary gaps in the ADLRO's case.

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In considering the appropriate remedy in these
circumstances, we note that in Wolcott, the supreme court
observed: "In the context of driver's license revocations, this
court has held that when a hearing officer improperly considers
an alcohol enforcement contact as the basis for extending the
revocation period, the appropriate remedy is to reverse the
additional revocation period." 148 Hawai#i at 415, 477 P.3d at
855 (citing Custer v. Admin. Dir. of the Courts, 108 Hawai#i 350,
120 P.3d 249 (2005)). Here, the entire one-year revocation
period is based on the ADLRO's improper consideration of evidence
related to the reasonable suspicion issue. Cf. Villarreal v.
Admin. Dir. of the Courts, No. CAAP-XX-XXXXXXX, 2021 WL 1986560,
at *3 (Haw. App. May 18, 2021) (reversing district court order
affirming administrative revocation of driver's license where
ADLRO's reasonable suspicion finding was unsupported by the
evidence in the record).
For the reasons discussed above, the Decision and Order
Affirming Administrative Revocation, entered on October 20, 2021,
in the District Court of the First Circuit, Honolulu Division, is
reversed.

DATED: Honolulu, Hawai#i, June 29, 2023.

On the briefs:
/s/ Keith K. Hiraoka
Alen M. Kaneshiro and Presiding Judge
Christopher M. Phillips
for Petitioner-Appellant.
/s/ Clyde J. Wadsworth
Christopher J.I. Leong, Associate Judge
Deputy Attorney General,
for Respondent-Appellee.
/s/ Karen T. Nakasone
Associate Judge

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