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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 30-OCT-2020 08:16 AM Dkt. 45 AMMO NO. CAAP-XX-XXXXXXX 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-XX-XXXXXXX) 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Witness #1 (CW1), in violation of Hawaii Revised Statutes (HRS) § 709-906(1) and (5)2 (Count 1); and Assault in NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 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

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 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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] NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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: /s/ Lisa M. Ginoza Chief Judge Chad M. Kumagai, Deputy Prosecuting Attorney, /s/ Katherine G. Leonard for Plaintiff-Appellant. Associate Judge William H. Jameson, Jr., /s/ Clyde J. Wadsworth Deputy Public Defender, Associate Judge for Defendant-Appellee.

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.