In re: Albert Ian Schweitzer

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-JUN-2021
08:03 AM
Dkt. 92 SO
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

IN THE MATTER OF ALBERT IAN SCHWEITZER, Petitioner-Appellee,
JUDGES FOR JUSTICE, Non-Party-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3SP071000007)

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

Non-party-Appellant Judges for Justice appeals from
three orders entered by the Circuit Court of the Third Circuit:1
(1) "Order Denying Judges for Justice Non-hearing Motion to #1
Set a Hearing and #2 to Unseal 'Stipulation re Evidence to be
Submitted to Reliagene Technologies for Testing and Order Sealing
Stipulation' Entered on February 26, 2007 and 'Stipulation and
Order re Post-Conviction DNA Testing of Evidence (Sealed in
Locked Cabinet)' Entered on February 9, 2009," entered on
October 17, 2019 (Order Denying Motion to Set Hearing);
(2) "Order Denying Motion to Reconsider the Court's Final Order
Denying Judges for Justice's Motions to (1) Set a Hearing and (2)
to Unseal the Court File in this Cause," entered on January 31,
2020 (Order Denying Reconsideration); and (3) "Order Granting
Attorney Fees and Costs" entered on March 18, 2020 (Sanctions
Order). For the reasons explained below, we vacate the Order
Denying Motion to Set Hearing and the Order Denying
Reconsideration; remand for the circuit court to conduct a

1
The Honorable Henry T. Nakamoto presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

hearing on Judges for Justice's motion to unseal the 2007 and
2009 stipulations; and reverse the Sanctions Order.
In 2000 Albert Ian Schweitzer was convicted for the
kidnapping, sexual assault, and murder of Dana Ireland. State v.
Schweitzer, Cr. No. 3PC990000147 (the Criminal Case). In 2007
and 2009 Schweitzer and the County of Hawai#i filed stipulations
for post-conviction DNA testing of evidence from the Criminal
Case. In re Schweitzer, Case No. 3SP071000007 (the DNA Testing
Case). The 2007 and 2009 stipulations in the DNA Testing Case
(DNA Testing Stipulations) were filed under seal, by agreement
between Schweitzer and the State. In 2017 Schweitzer filed a
petition for post-conviction relief under Rule 40 of the Hawai#i
Rules of Penal Procedure. Schweitzer v. State, Case
No. 3PR171000002 (the Rule 40 Case).2
On March 19, 2019, Michael Heavey of Judges for Justice
asked the circuit court for a hearing date for a motion to unseal
the DNA Testing Stipulations. On June 28, 2019, the circuit
court declined to provide a hearing date because Heavey was "not
a party or counsel for a party in the" DNA Testing Case.
On August 28, 2019, Judges for Justice formally moved
the circuit court to set a hearing on a motion to unseal the DNA
Testing Stipulations (Motion to Set Hearing). Schweitzer opposed
the motion and requested sanctions. On October 17, 2019, the
circuit court entered the Order Denying Motion to Set Hearing;
Schweitzer's counsel was ordered to submit a declaration of
attorneys fees and costs, to which Judges for Justice could
respond or object.
On October 25, 2019, Judges for Justice moved for
reconsideration of the Order Denying Motion to Set Hearing.
Schweitzer's counsel filed a timely declaration of
attorneys fees and costs on November 1, 2019. Judges for Justice
did not file a response or objection before the deadline set by
the circuit court.

2
On June 23, 2020, the circuit court consolidated the DNA Testing
Case with the Rule 40 Case.

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The Order Denying Reconsideration was entered on
January 31, 2020.
On February 21, 2020, Judges for Justice filed a
"Petition for Writ of Prohibition and Writ of Mandamus" with the
Hawai#i Supreme Court. The petition requested (1) a writ
directing the circuit court to unseal the DNA Testing
Stipulations; and (2) a writ prohibiting the circuit court from
(a) refusing to consider motions to unseal filed by non-parties
to a proceeding, (b) enforcing any order to seal the DNA Testing
Stipulations, and (c) enforcing any order sanctioning Judges for
Justice for filing the Motion to Set Hearing.
The Sanctions Order was entered on March 18, 2020. The
circuit court awarded Schweitzer attorneys' fees and costs
totaling $17,075.11. Judges for Justice filed a notice of appeal
on May 14, 2020.3
The supreme court denied Judges for Justice's petition
for writs on September 9, 2020, holding that extraordinary relief
was not warranted because Judges for Justice was seeking relief
by way of its appeal in this case. Judges for Justice v.
Nakamoto, No. SCPW-XX-XXXXXXX, 2020 WL 5413596 (Haw. Sept. 9,
2020).

1. The circuit court erred by not setting a
hearing on Judges for Justice's Motion
to Set Hearing.

The Order Denying the Motion to Set Hearing did not
contain a specific reason for the court's ruling, but stated:

[A] similar request was previously denied and sanctions are
appropriate in this case.

The circuit court had previously communicated to Heavey, in
response to Judges for Justice's request for a hearing date:

This Court has received Mr. Michael Heavy's [sic]
letter dated March 19, 2019, regarding the above captioned
matter. The court cannot schedule a hearing or entertain a
motion submitted based on the information provided as the

3
The circuit court extended the deadline for Judges for Justice to
file a notice of appeal.

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

person requesting relief is not a party or counsel for a
party in the above-entitled matter.

(Emphasis added.)
The Hawai#i Supreme Court has held that "article 1,
section 4 of the Hawai#i Constitution provides the public with a
qualified right of access to observe court proceedings in
criminal trials." Oahu Publ'ns Inc. v. Ahn, 133 Hawai#i 482,
496, 331 P.3d 460, 474 (2014) (footnote omitted). The qualified
right of access extends to records of criminal proceedings.
Grube v. Trader, 142 Hawai#i 412, 422, 420 P.3d 343, 353 (2018).
Under Hawai#i law, Judges for Justice has a "qualified right of
access" to the DNA Testing Stipulations.
The "procedural prerequisites to entry of an order
closing a criminal proceeding to the public are (1) those
excluded from the proceeding must be afforded a reasonable
opportunity to state their objections; and (2) the reasons
supporting closure must be articulated in findings." Grube, 142
Hawai#i at 423, 420 P.3d at 354 (quoting Ahn, 133 Hawai#i at 497-
98, 331 P.3d at 475-76 (quoting United States v. Brooklier, 685
F.2d 1162, 1167-68 (9th Cir. 1982))).
In this case the circuit court ordered the 2007 and
2009 DNA Testing Stipulations to be filed under seal pursuant to
an agreement between Schweitzer and the State; the circuit court
did not make findings supporting the sealing of the stipulations.
Under those circumstances:

[A] hearing must be held under procedures adequate to afford
the public a meaningful opportunity to object or offer
alternatives to the closure. Even when the public by
necessity lacks full knowledge of the basis of the motion to
seal, its participation in the hearing allows the judge to
consider other relevant interests and possible alternatives
to sealing, thus providing a more informed basis for the
determination.

Grube, 142 Hawai#i at 424, 420 P.3d at 355 (citations omitted).
We conclude that the circuit court erred by not setting a hearing
on Judges for Justice's Motion to Set Hearing. The Order Denying
Motion to Set Hearing is vacated. We express no opinion on the
merits of Judges for Justice's request to unseal the DNA Testing

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Stipulations, but remand for the circuit court to hold a hearing
and enter findings as required by Grube and Ahn.
In light of our conclusion, we also vacate the Order
Denying Reconsideration.

2. The circuit court erred by imposing
sanctions against Judges for Justice.

"Sanctions imposed under statute, court rule, or the
trial court's inherent powers are reviewed for an abuse of
discretion." Erum v. Llego, 147 Hawai#i 368, 378, 465 P.3d 815,
825 (2020) (citation omitted). "The trial court abuses its
discretion if it bases its ruling on an erroneous view of the
law[.]" Id. (citation omitted). The circuit court erred by
imposing sanctions against Judges for Justice based on the
erroneous view that non-parties lack standing to move to unseal
sealed court documents. The Sanctions Order is reversed.

CONCLUSION

Based upon the foregoing: the October 17, 2019 Order
Denying Motion to Set Hearing and the January 31, 2020 Order
Denying Reconsideration are vacated, and the March 18, 2020
Sanctions Order is reversed. This case is remanded to the
circuit court for proceedings consistent with Ahn and Grube.
DATED: Honolulu, Hawai#i, June 15, 2021.

On the briefs:
/s/ Katherine G. Leonard
Robert H. Thomas, Presiding Judge
Mark M. Murakami,
Joanna C. Zeigler, /s/ Keith K. Hiraoka
for Non-party-Appellant Associate Judge
Judges for Justice.
/s/ Clyde J. Wadsworth
Jennifer L. Brown, Associate Judge
Susan Friedman,
Barry Scheck,
for Petitioner-Appellee
Albert Ian Schweitzer.

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