NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000594

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellant,

v.

NOGUCHI MILNE, Defendant-Appellee

APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT

(CR. NO. 1FFC-19-0000573)

AMENDED MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Plaintiff-Appellant State of Hawai#i (State) appeals

from an "Order Granting Defendant's Oral Motion to Dismiss Count

II without Prejudice" (Dismissal Order) entered on July 26, 2019,

by the Family Court of the First Circuit (Family Court).1 

In this case, the State filed a Complaint against

Defendant-Appellee Noguchi Milne (Milne), charging him with two

counts: Abuse of Family or Household Members with respect to

Complaining Witness #1 (CW1), in violation of Hawaii Revised

Statutes (HRS) § 709-906(1) and (5)2 (Count 1); and Assault in

1 The Honorable Kevin A. Souza presided.

2 HRS § 709-906 (2014) provides, in relevant part:

(1) It shall be unlawful for any person, singly

or in concert, to physically abuse a family or

household member or to refuse compliance with the

(continued...)

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000594

30-OCT-2020

08:16 AM

Dkt. 45 AMMO
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the Third Degree with respect to Complaining Witness #2 (CW2), in

violation of HRS § 707-712(1)(a)3 (Count 2). Both charges are

based on alleged conduct occurring on the same date. 

On appeal, the State contends that the Family Court

erred by dismissing Count 2 on the basis that it lacked subject

matter jurisdiction over Count 2. 

We hold the Family Court has jurisdiction with regard

to Count 2, and therefore, we vacate the Dismissal Order and

remand for further proceedings.

I. Background

On July 22, 2019, at a trial call for this case, the

State requested a continuance because CW1 and CW2 failed to

appear despite being served with subpoenas. The Family Court

granted a continuance over Milne's objection. Milne then orally

moved to dismiss Count 2 for lack of subject matter jurisdiction. 

Milne asserted that CW2 was the father of CW1, CW1 is Milne's

girlfriend, and that CW2 and Milne did not live or reside in the

same household. 

When asked by the Family Court its basis for subject

matter jurisdiction over Count 2, the State requested a written

motion so that it could respond in writing and also so that it

could have the input of the Deputy Prosecuting Attorney who

charged the case as to why Count 2 was included. Instead, the

Family Court asked the State to review HRS § 571-14. HRS Chapter

2(...continued)

lawful order of a police officer under subsection (4).

The police, in investigating any complaint of abuse of

a family or household member, upon request, may

transport the abused person to a hospital or safe

shelter.

. . . . 

(5) Abuse of a family or household member and

refusal to comply with the lawful order of a police

officer under subsection (4) are misdemeanors[.]

3 HRS § 707-712(1)(a) (2014) provides, in part: "(1) A person commits

the offense of assault in the third degree if the person: (a) Intentionally,

knowingly, or recklessly causes bodily injury to another person[.]"

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571 addresses Family Courts, and HRS § 571-14(b), provides:

HRS § 571-14 Jurisdiction; adults.

. . .

(b) The court shall have concurrent jurisdiction with the

district court over violations of sections 707-712, 707-717,

707-722, 708-822, 708-823, 710-1010.5, 711-1106, and

711-1106.5 when multiple offenses are charged through

complaint or indictment and at least one offense is a

violation of an order issued pursuant to chapter 586 or a

violation of section 709-906.

HRS § 571-14(b) (2014) (emphases added).4

In addressing the Family Court's request to review HRS

§ 571-14, the State asserted:5

And, your honor, under section (9)(b) the -- the court

would have concurrent jurisdiction over the Assault

Third given the -- it'd be one of the offenses in this

case would be under the jurisdiction of Family Court,

which would be the Count 1.

In turn, Milne's counsel responded:

. . . my response to that is that under subsection

(9)(b) is that that's if it was as to pertaining to

the same complaining witness. However, in this matter

the two different counts are represented by offenses,

again [sic] two different complaining witnesses. 

Therefore the court does not have jurisdiction over

Count 2 relating to the second complaining witness.

The Family Court asked Milne's counsel "where do you get the

limiting language that it has to relate to the same complaining

witness?" Milne's counsel answered that "there is no limiting

language but that is the defense's argument." The State asserted

that HRS § 571-14(b) contains no language that limits the

statute's provisions to the same CW. 

The Family Court then orally ruled as follows:

The court reads 571-14 as permissive and not mandatory

as to subsection (b), and because the complaining

witness in Count 2 is not a family or household member

to Mr. Milne, the court is, based on the

representations of counsel, going to be dismissing

4 As noted above, Milne was charged with violating HRS § 707-712

(Assault in the Third Degree) as to CW2 and charged with violating HRS § 709-

906 (Abuse of Family or Household Members) as to CW1.

5 In the transcript of the proceeding, the Family Court and both

counsel referred to "subsection 9(b)," but it appears that they all were

referencing HRS § 571-14(b). 

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Count 2 without prejudice and the State would be free

to refile Count 2 in District Court as to that

complaining witness.

Subsequently, on July 26, 2019, the Family Court

entered the written Dismissal Order which contains no findings

and states in relevant part:

After consideration of the arguments of counsels, this

Court granted the Defendant's oral motion to dismiss Count

II for lack of Subject Matter Jurisdiction, and it is

further ordered that Count II be dismissed without

prejudice.

IT IS HEREBY ORDERED that the Defendant's Oral Motion

to dismiss Count II is GRANTED. Furthermore, Count II is

dismissed without prejudice for lack of Subject Matter

Jurisdiction.

(Emphasis added). 

II. Interpretation of HRS § 571-14(b)

"Statutory interpretation is a question of law

reviewable de novo." State v. Castillon, 144 Hawai#i 406, 411,

443 P.3d 98, 103 (2019) (citing Panado v. Bd. of Trs., Emps.'

Ret. Sys., 134 Hawai#i 1, 10, 332 P.3d 144, 153 (2014)).6 In

reviewing questions of statutory interpretation, we are guided by

the following principles:

First, the fundamental starting point for

statutory-interpretation is the language of the

statute itself. Second, where the statutory language

is plain and unambiguous, our sole duty is to give

effect to its plain and obvious meaning. Third,

implicit in the task of statutory construction is our

foremost obligation 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. Fourth, when there is doubt,

doubleness of meaning, or indistinctiveness or

6 Milne asserts the Family Court’s decision to decline jurisdiction

should be reviewed for an abuse of discretion, relying on NB v. GA, 133

Hawai#i 436, 444, 329 P.3d 341, 349 (App. 2014). However, Milne’s reliance on

NB is misplaced as NB did not address the issue of concurrent jurisdiction. 

In NB, this court vacated the Family Court’s decision to decline jurisdiction

based on its lack of findings on statutory factors that made Hawaii an

"inconvenient forum" pursuant to HRS § 583A–207, which provides, in part: "A

court of this State which has jurisdiction under this chapter to make a

child-custody determination may decline to exercise its jurisdiction at any

time if it determines that it is an inconvenient forum under the circumstances

and that a court of another state is a more appropriate forum." HRS § 583A–

207(a) (2006).

Here, the Family Court's written order states that it lacks subject

matter jurisdiction. This is a question of law.

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uncertainty of an expression used in a statute, an

ambiguity exists.

Id. (quoting Panado, 134 Hawai#i at 10-11, 332 P.3d at 153-54). 

It appears that Milne now concedes on appeal that the

Family Court had concurrent subject matter jurisdiction over

Count 2 as long as Count 1 was pending.7 We conclude this

concession is proper. Here, under the plain language of HRS 

§ 571-14(b), the Family Court has concurrent jurisdiction with

the district court over violations of specified offenses,

including HRS § 707-712 (Assault in the Third Degree), when

multiple offenses are charged in a complaint or an indictment and

at least one offense is, inter alia, a violation of HRS § 709-906

(Abuse of Family or Household Members). The Complaint in this

case meets the requirements for concurrent jurisdiction under HRS

§ 571-14(b).

Even assuming there is an ambiguity as to whether HRS 

§ 571-14(b) limits charges of multiple offenses to the same

complaining witness, as Milne argued below, the legislative

history reflects otherwise.

When there is ambiguity in a statute, "the meaning of

the ambiguous words may be sought by examining the

context, with which the ambiguous words, phrases, and

sentences may be compared, in order to ascertain their

true meaning." Moreover, the courts may resort to

extrinsic aids in determining legislative intent, such

as legislative history, or the reason and spirit of

the law.

Castro v. Melchor, 142 Hawai#i 1, 24, 414 P.3d 53, 76 (2018)

(citation omitted).

Subsection (b) to HRS § 571-14 was added in 1998 by way

of Act 64. Relevant legislative history for S.B. No. 2697, which

became Act 64, provides:

The purpose of this bill . . . is to modify the

jurisdiction of the family, district and circuit

courts to rectify jurisdictional conflicts resulting

from criminal and other related activities involving

children, parents, spouses, and other family members.

7 Milne's answering brief incorrectly refers to himself as the

"Appellant." Moreover, the answering brief does not accurately cite or quote

HRS § 571-14 in several instances.

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Your Committee finds that there is a great need

for concurrent jurisdiction to streamline the judicial

process in family related cases which are assigned to

separate courts due to the nature of the offense. For

example, if a person assaults another individual while

violating a family court restraining order, under

current law the the [sic] two violations of law would

be heard in separate courts. Your Committee further

finds that concurrent jurisdiction will make the

judicial process in these instances more efficient and

effective. However, your Committee finds that the

provisions of this bill, as submitted, are too broad

to provide adequate direction as to which court would

have jurisdiction in the types of cases which are

often assigned to both family court and district or

circuit court.

Sen. Stand. Comm. Rep. No. 2649, in 1998 Senate Journal, at 1071

(emphasis added).8 This legislative history shows that the

Legislature intended to provide for concurrent jurisdiction under

Act 64, even when the multiple charged offenses involve different

complaining witnesses.

Thus, the Family Court erred in its Dismissal Order by 

dismissing Count 2 for lack of subject matter jurisdiction.

III. The Family Court Did Not Exercise Discretion

Milne's main contentions on appeal are based on what

the Family Court stated orally, that the court "reads [HRS §]

571-14 as permissive and not mandatory as to subsection (b)." 

Notwithstanding that the Family Court's written Dismissal Order

states that it dismissed Count 2 for "lack of Subject Matter

Jurisdiction," Milne argues the Family Court "did not abuse its

8 Another committee report for S.B. No. 2697 states, in relevant part:

Your Committee finds that one incident can give rise

to several different charges. Some of these charges, like a

violation of a family court restraining order or misdemeanor

abuse of family and household member, fall under the

jurisdiction of the family court, while others may fall

under the jurisdiction of the circuit or district courts. 

Current law prevents the State from bringing all the related

charges at one time before one court. 

This bill addresses that problem by giving the

circuit, district, and family courts concurrent

jurisdictions over certain offenses[.]

House Stand. Comm. Rep. No. 1055-98, in 1998 House Journal, at 1482. 

Ultimately, Act 64 provided for concurrent jurisdiction over the specified

offenses in the family court and district court (but not the circuit court).

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discretion when it declined to exercise its concurrent

jurisdiction over Count 2 because based on the State's

representations, it was uncertain whether the State would have

been able to proceed in both counts at the next trial call, and

[the] State failed to show that except for different

complainants, the evidence in both counts was the same." Milne

makes speculative arguments as to why the Family Court allegedly

decided not to exercise its concurrent jurisdiction, based on

Milne's assertion of different scenarios that could occur and

purported inferences that have no basis in the record. In short,

notwithstanding the oral statements of the Family Court, the

written Dismissal Order filed thereafter is based on a lack of

subject matter jurisdiction.

Given the record in this case, we need not address

whether the Family Court has discretion to decline its concurrent

jurisdiction. Even if the Family Court had such discretion,

there were no proper findings or explanation by the Family Court

on that issue.9

9 The notice of appeal was filed on August 23, 2019. On November 22,

2019, the Family Court filed "Findings of Fact and Conclusions of Law"

(11/22/19 FOF/COL) related, in part, to the Dismissal Order. Here, where an

adult is charged with a crime, the Hawai#i Rules of Penal Procedure (HRPP)

govern. See State v. Gonsales, 91 Hawai#i 446, 449, 984 P.2d 1272, 1275

(1999); Hawai#i Family Court Rules (HFCR) Rule 81(c) ("Cases for adults

charged with the commission of a crime coming within the jurisdiction of the

family courts shall be governed by the Hawai#i Rules of Penal Procedure."). 

HRPP Rule 23(c) provides for a court to make findings "[i]n a case tried

without a jury" and if requested, to make special findings "at any time prior

to sentence." HRPP Rule 23(c) does not apply here to authorize the 11/22/19

FOF/COL pertaining to the Dismissal Order. In short, the Family Court did not

have jurisdiction to enter the 11/22/19 FOF/COL related to the Dismissal

Order.

None of the appellate briefs in this appeal, all filed after the

11/22/19 FOF/COL was entered below, make any reference to the 11/22/19

FOF/COL. Even if we were to consider the findings therein related to the

Dismissal Order, the Family Court stated in relevant part:

[b]ecause Family Court is a Court of limited jurisdiction,

and because the Defendant and Complaining Witness in Count

II are not family or household members, the Court granted

Defendant's Oral Motion to Sever and Dismiss Count II

without prejudice. The Court informed the State that they

may refile the matter in District Court.

(continued...)

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IV. Conclusion

Based on the foregoing, the "Order Granting Defendant's

Oral Motion to Dismiss Count II without Prejudice" entered on

July 26, 2019, by the Family Court of the First Circuit, is

vacated. This case is remanded to the Family Court for further

proceedings.

DATED: Honolulu, Hawai#i, October 30, 2020. 

On the briefs:

Chad M. Kumagai, 

Deputy Prosecuting Attorney,

for Plaintiff-Appellant.

William H. Jameson, Jr., 

Deputy Public Defender, 

for Defendant-Appellee.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Katherine G. Leonard

Associate Judge

/s/ Clyde J. Wadsworth

Associate Judge

9(...continued)

Thus, similar to the Dismissal Order, this indicates the Family Court

dismissed Count II based on a determination that it lacked subject matter

jurisdiction.

8