United States District Court, D. Hawaii
LOUIS M. KEALOHA; KATHERINE E. KEALOHA; KRISTINA KEALOHA, a minor child, by her next friend KATHERINE E. KEALOHA, Plaintiffs,
CHARLES W. TOTTO, individually and as Executive Director and Legal Counsel of the Honolulu Ethics Commission; LETHA A.S. DECAIRES, individually and as investigator for the Honolulu Ethics Commission; HONOLULU ETHICS COMMISSION; THE CITY AND COUNTY OF HONOLULU, Defendants.
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART PLAINTIFFS' MOTION TO REMAND
S.C. CHANG UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiffs Louis, Katherine, and Kristina
Kealoha's Motion to Remand, filed January 10, 2017.On
February 17, 2017, Defendant Charles Totto
(“Totto”) filed an Opposition and Defendants
Honolulu Ethics Commission (“HEC”) and City and
County of Honolulu (“the City”) filed a
Substantive Joinder in the Opposition. Defendant Letha
DeCaires (“DeCaires”) filed a Substantive Joinder
on February 21, 2017. Plaintiffs filed a Reply on February
matter came on for hearing on March 10, 2017. Kevin Sumida,
Esq., appeared on behalf of Plaintiffs. Joachim Cox, Esq.,
and Kamala Haake, Esq., appeared on behalf of Totto; Nicholas
Monlux, Esq., appeared on behalf of DeCaires; and Richard
Nakamura, Esq., appeared on behalf of the City and HEC.
careful consideration of the parties' submissions, the
applicable law, and the arguments of counsel, the Court
HEREBY RECOMMENDS that the Motion be GRANTED IN PART AND
DENIED IN PART for the reasons set forth below.
commenced this action on June 17, 2016 in the Circuit Court
of the First Circuit, State of Hawaii.
Complaint did not enumerate specific causes of action, but
alleged, in pertinent part, that:
16. As a result, the processes and procedures of the Ethics
Commission have been so corrupted so that the instigation,
handling, and dispositions of Ethics Commission
investigations and prosecutions have for years been conducted
in violation of the law, and in violation of required due
process and proper procedures.
. . . .
80. In her unlawful zeal to create any ethic violation
whether real or manufactured, and as evidence of her conflict
of interest and improper motives, and with the full approval
of and ratification by Totto, DeCaires violated the rights of
HPD officers, witnesses and the plaintiffs, provided false
and defamatory information to witnesses and others, violated
Garrity rights of witnesses and plaintiffs, violated
the laws and procedures of the Ethics Commission, shared
confidential as well as fabricated information with others,
and improperly caused the adult plaintiffs to be involved in
other proceedings and investigations, all while continuing to
benefit from the continued renewal of her 89 day
. . . .
99. These illegal and improper investigations resulted in no
discovery of any violation of the Standards of Conduct .....
But in the course of these illegal
. . . .
l) Totto and/or DeCaires deliberately, improperly and
illegally shared with other state and law enforcement
agencies information provided by plaintiffs, by witnesses, by
HPD officers, and by other County employees, in violation of
their Garrity and other rights. The violations were so
systematic and egregious that, in an unprecedented move, the
State Of Hawaii Organization of Police Officers
(“SHOPO”) filed a formal union grievance, stating
that HPD officers were being compelled to appear before the
Ethics Commission “to answer questions without being
informed of the allegations made against them or being
afforded the opportunity to view the complaint, ” and
were “not being afforded any Garrity Rights prior to
being compelled to answer questions.” The police union
expressly found that “the Ethics Commission, a
department of the City and County of Honolulu is in violation
of [the Collective Bargaining Agreement], ” . . .;
m) Totto and/or DeCaires deliberately, improperly and
illegally shared with third parties, including the attorney
for Gerard Puana, information provided plaintiffs, by
witnesses, by HPD officers, and by other county employees, in
violation of their Garrity and other rights.
of Removal, Ex. 1.
were served on June 20, 2016. Mot., Exs. A-D.
11, 2016, the City and HEC (joined by DeCaires and Totto on
September 20 and 21, 2016, respectively), filed a motion for
more definite statement and motion to strike. Doc. No. 15-10,
15-22 & 15-24. The state court entered minutes granting
the motion for more definite statement on November 21, 2016,
and directed Plaintiffs to file a more definite statement
separately identifying their claims against Defendants.
Notice of Removal, Ex. 2. The formal orders memorializing the
rulings issued on December 6 and 16, 2016. Doc. No. 15-44,
December 20, 2016, Plaintiff Kristina Kealoha and Plaintiffs
Louis and Katherine Kealoha filed More Definite Statements
(“MDS”) against each Defendant. Opp'n, Exs.
2-3. Plaintiffs Louis and Katherine Kealoha asserted the
following claims against Totto: 1) wrongful
investigation/negligence; 2) interference with contractual
relations/prospective economic advantage; 3) violation of
civil rights (42 U.S.C. § 1983); 4) intentional
infliction of emotional distress; 5) negligent infliction of