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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-13-0000117
                                                                25-JUN-2015
                                                                09:05 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAII

                            ---oOo---
________________________________________________________________

         MICHAEL DOYLE RUGGLES, REV. NANCY WAITE HARRIS,
  KENNETH V. MIYAMOTO-SLAUGHTER, WENDY TATUM, DAVID TATUM, and
      ROBERT S. MURRAY, Petitioners/Plaintiffs-Appellants,
                               and
             GEORGE HERMAN KLARE, BARBARA JEAN LANG,
                      Plaintiffs-Appellees,

                                      vs.

   DOMINIC YAGONG, DONALD IKEDA, J. YOSHIMOTO, DENNIS ONISHI,
   FRED BLAS, BRITTANY SMART, BRENDA FORD, ANGEL PILAGO, and
      PETE HOFFMAN, current Hawaii County Council members;
              JAY KIMURA, Hawaii County Prosecutor;
MITCHELL ROTH and CHARLENE IBOSHI, Deputy Prosecuting Attorneys;
     BILLY KENOI, Hawaii County Mayor, respondeat superior,
         HARRY KUBOJIRI, Hawaii County Chief of Police,
        KELLY GREENWELL, GUY ENRIQUES, and EMILY NAEOLE,
             previous Hawaii County Council members,
                Respondents/Defendants-Appellees.
________________________________________________________________

                              SCWC-13-0000117

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-13-0000117; CIV. NO. 11-1-117)

                                JUNE 25, 2015

            RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ.;
      WITH POLLACK, J., DISSENTING, WITH WHOM WILSON, J., JOINS.
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                 OPINION OF THE COURT BY McKENNA, J.

I.    Introduction

      Petitioners, a group of pro se individuals from Hawaii

County, present the following question:          “Did the Intermediate

Court of Appeals err in determining that the Lowest Law

Enforcement Priority of Cannabis, a voter sponsored initiative,

in its entirety is in conflict with State laws, and is thus

preempted by them?”      We answer this question in the negative.

Our case law holds that a municipal ordinance may be preempted

by state law “if (1) it covers the same subject matter embraced

within a comprehensive state statutory scheme disclosing an

express or implied intent to be exclusive and uniform throughout

the state or (2) it conflicts with state law.”           Richardson v.

City & Cnty. of Honolulu, 76 Hawaiʻi 46, 62, 868 P.2d 1193, 1209

(1994) (citations omitted).

      We accepted certiorari to clarify that the ordinance in

this case is preempted solely because it “conflicts with state

law.”   It is not necessary to address whether the LLEP “covers

the same subject matter embraced within a comprehensive state

statutory scheme disclosing an express or implied intent to be

exclusive and uniform throughout the state . . . .”            Id.   The

ICA’s published opinion erroneously conflates the two Richardson

prongs, but the error is harmless, as the ICA clearly held that

the LLEP conflicts with state law, and the Richardson preemption

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test is stated in the disjunctive.           Therefore, we affirm the

ICA’s judgment on appeal, which affirmed the Circuit Court of

the Third Circuit’s1 (“circuit court”) Final Judgment.

II.   Background

      A.     Article 16 of Chapter 14 of the Hawaiʻi County Code:
             Lowest Law Enforcement Priority of Cannabis Ordinance

      At issue in this appeal is whether Article 16 of Chapter 14

of the Hawaii County Code, entitled “Lowest Law Enforcement

Priority of Cannabis” (“LLEP”), is preempted in its entirety by

state law.      Passed by voter initiative in 2008, the LLEP

provides the following, in full:

             Article 16.   Lowest Law Enforcement Priority of Cannabis
             Ordinance.

             Section 14-96. Purpose.
             The purpose of this article is to:
             (1) Provide law enforcement more time and resources to
             focus on serious crimes;
             (2) Allow our court systems to run more efficiently;
             (3) Create space in our prisons to hold serious criminals;
             (4) Save taxpayers money and provide more funding for
             necessities such as education and health care; and
             (5) Reduce the fear of prosecution and the stigma of
             criminality from non-violent citizens who harmlessly
             cultivate and/or use cannabis for personal, medicinal,
             religious, and recreational purposes.

             Section 14-97. Findings.
             (a) The Institute of Medicine has found that cannabis
             (marijuana) has medicinal value and is not a gateway drug.
             (b) According to the U.S. Centers for Disease Control, the
             use of cannabis (marijuana) directly results in zero deaths
             per year.
             (c) According to the National Institute of Drug Abuse
             (NIDA), the marijuana eradication program has not stopped
             cannabis cultivation in the county, rather the program has
             only decreased the availability of the plant, which
             increases its “street” value, resulting in more crime.


      1
             The Honorable Greg K. Nakamura presided.


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         (d) The National Institute of Drug Abuse (NIDA) also
         reported that a large increase in the use of
         methamphetamine, crack cocaine, and other hard drugs was
         related to the marijuana eradication program’s
         implementation.
         (e) According to public record, the ‘mandatory program
         review’ for the marijuana eradication program, required by
         section 3-16 of the County Charter to be performed at least
         once every four years, has never been performed in the
         thirty years that the program has existed.
         (f) Law abiding adults are being arrested and imprisoned
         for nonviolent cannabis offenses, clogging our court
         dockets, overcrowding our prisons, tying up valuable law
         enforcement resources and costing taxpayers hundreds of
         thousands of dollars in Hawaiʻi County alone each year.
         (g) The citizens of the Cities of Hailey, Idaho; Denver,
         Colorado; Seattle, Washington; Columbia, Missouri; Eureka
         Springs, Arkansas and Santa Barbara, Oakland, Santa Monica
         and Santa Cruz, in California, and the citizens of Missoula
         County, Montana, all voted for cannabis (marijuana) to be
         placed as law enforcement’s lowest priority within the past
         five years.

         Section 14-98. Definitions.
               “Adult” means any individual who is twenty one years
         of age or older.
               “Adult personal use” means the use of cannabis on
         private property by adults. It does not include:
         (1) Distribution or sale of cannabis;
         (2) Distribution, sale, cultivation, or use of cannabis on
         public property;
         (3) Driving under the influence; or
         (4) The commercial trafficking of cannabis, or the
         possession of amounts of cannabis in excess of the amounts
         defined as being appropriate for adult personal use.
               “Marijuana”, (as defined in the Hawaiʻi Revised
         Statutes of Chapter 712-1240) means cannabis.
               “Cannabis” means all parts of the cannabis plant,
         whether growing or not; the seeds thereof; the resin
         extracted from any part of the cannabis plant; and every
         compound, manufacture, salt, derivative, mixture or
         preparation of the plant, its seeds, or its resin.
               “Lowest Law Enforcement Priority” means a priority
         such that all law enforcement activities related to all
         offenses other than the possession or cultivation of
         cannabis for adult personal use shall be a higher priority
         than all law enforcement activities related to the adult
         personal use of cannabis. The Lowest Law Enforcement
         Priority regarding possession or cultivation of cannabis
         shall apply to any single case involving twenty four or
         fewer cannabis plants at any stage of maturity or the
         equivalent in dried cannabis, where the cannabis was
         intended for adult personal use.
               The “dried equivalent” of twenty four or fewer
         cannabis plants shall be presumed to be twenty four or
         fewer ounces of usable cannabis, excluding stems and other
         non active parts. A greater amount may also fall under the

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         Lowest Law Enforcement Priority provisions described herein
         if such amount is shown by competent evidence to be no more
         than the dried equivalent of twenty four plants.

         Section 14-99. Lowest law enforcement priority policy
         relating to the adult personal use of cannabis.
         (a) The cultivation, possession and use for adult personal
         use of cannabis shall be the Lowest Law Enforcement
         Priority for law enforcement agencies in the county.
         (b) The council, the police commissioner, the chief of
         police and all associated law enforcement staff, deputies,
         officers and any attorney prosecuting on behalf of the
         county shall make law enforcement activity relating to
         cannabis offenses, where the cannabis was intended for
         adult personal use, their Lowest Law Enforcement Priority.
         Law enforcement activities relating to cannabis offenses
         include but are not limited to the prosecution of cannabis
         offenses involving only the adult personal use of cannabis.
         (c) Neither the chief of police, the police commissioner,
         nor any attorney prosecuting on behalf of the county, nor
         any associated law enforcement staff, deputies, nor
         officers shall seek, accept or renew any formal or informal
         deputization or commissioning by a federal law enforcement
         agency for the purpose of investigating, citing, or
         arresting adults, nor for searching or seizing property
         from adults for cannabis offenses subject to the Lowest Law
         Enforcement Priority of cannabis where such activities
         would be in violation of that policy, nor shall such
         authorities exercise such powers that may be ancillary to
         deputization or commissioning for another purpose.
         (d) The council shall not authorize the acceptance or the
         issuing of any funding that is intended to be used to
         investigate, cite, arrest, prosecute, search or seize
         property from adults for cannabis offenses in a manner
         inconsistent with the county’s Lowest Law Enforcement
         Priority policy.

         Section 14-100. County prosecuting attorneys.
               To the full extent allowed by the Constitution of the
         State of Hawaiʻi, the people, through their county
         government, request that neither the county prosecuting
         attorney nor any attorney prosecuting on behalf of the
         county shall prosecute any violations of the sections of
         chapter 712-1240 of the Hawaiʻi Revised Statutes regarding
         possession or cultivation of cannabis in a manner
         inconsistent with the Lowest Law Enforcement Priority, as
         described in section 14-98 and 14-99 of this article; in
         cases where the amount possessed or grown is less than
         twenty four plants or the dried equivalent, possession for
         adult personal use shall be presumed.

         Section 14-101. Expenditure of funds for cannabis
         enforcement.
         (a) Neither the council, nor the police commissioner, nor
         the chief of police, nor any attorneys prosecuting on
         behalf of the county, nor any associated law enforcement
         staff, deputies, or officers shall spend or authorize the

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         expenditure of any public funds for the investigation,
         arrest, or prosecution of any person, nor for the search or
         seizure of any property in a manner inconsistent with the
         Lowest Law Enforcement Priority as defined in section 14-98
         and 14-99 of this article.
         (b) The council shall not support the acceptance of any
         funds for the marijuana eradication program.

         Section 14-102. Community oversight.
               The council shall ensure the timely implementation of
         this chapter by working with the chief of police and/or the
         police commissioner to:
               (1) Provide for procedures to receive grievances from
         individuals who believe that they were subjected to law
         enforcement activity contrary to the Lowest Law Enforcement
         Priority of cannabis, which is described in section 14-98
         and 14-99 of this article; and
               (2) Publish a report semi-annually on the
         implementation of this chapter every first day of June and
         every first day of December, from this day forward, with
         the first report being issued June 1, 2009. These reports
         shall include but not be limited to: the number of all
         arrests, citations, property seizures, and prosecutions for
         all cannabis offenses in the county, the number of
         complaints regarding marijuana eradication over-flights;
         the breakdown of all cannabis arrests and citations by
         race, age, specific charge, and classification as
         infraction, misdemeanor, or felony, the estimated time and
         money spent by the county on law enforcement and punishment
         for adult cannabis offenses, and any instances of officers
         or deputies assisting in state or federal enforcement of
         adult cannabis offenses. These reports shall be published
         with the cooperation of the county prosecuting attorney,
         the chief of police, and all associated law enforcement
         staff in providing needed data.

         Section 14-103. Notification of local, state, and federal
         officials.
         (a) After the enactment of this article, the county clerk
         shall send letters on an annual basis (every June 1st of
         each year) to the mayor of the county, the county of Hawaiʻi
         voters’ Congressional Delegation, Hawaiʻi’s U.S. senators,
         the county of Hawaiʻi voters’ representatives in the Hawaiʻi
         State Legislature, the Governor of Hawaiʻi, and the
         President of the United States. This letter shall state;
         “The citizens of the County of Hawaiʻi have passed an
         initiative to make Cannabis offenses the Lowest Law
         Enforcement Priority, where the Cannabis is intended for
         adult personal use, and request that the federal and state
         branches of government remove criminal penalties for the
         cultivation, possession and use of Cannabis for adult
         personal use; the citizens also request that Cannabis
         policies here within the county of Hawaiʻi be dealt with
         from our local law enforcement only.” The letters may also
         state, be it the will of the county council; that according
         to the three year study performed by the National Institute

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           on Drug Abuse, more people used methamphetamine as a result
           of the marijuana eradication program; they may also express
           that methamphetamine is a growing problem in our community
           and more help would be appreciated in that area, and that
           the first action that would help in that area would be to
           end the marijuana eradication program.
           (b) This duty shall be carried out until state and federal
           laws are changed accordingly.

           Section 14-104. Statutory and constitutional
           interpretation.
           All provisions in this article shall only be implemented to
           the full extent that the Constitution of the State of
           Hawaiʻi and the Hawaiʻi Revised Statutes allows, and in the
           event, and only in the event, that a court of competent
           jurisdiction determines that any provision in any section
           of this article may not be directed by voter initiative or
           by action of the council, then that specific mandatory
           provision only shall be deemed advisory and expression of
           the will of the people that the provision shall be
           implemented into law by whichever government branch or
           official who has to the power to implement it, and that the
           council shall take all actions within their power to work
           with those branches of government to express the will of
           the people and encourage, support, and request the
           implementation of those provisions.

           Section 14-105. Severability.
           In the event, and only in the event, that a court of
           competent jurisdiction should find one or more of the
           sections, or parts of the sections of this article illegal,
           or any provision of this article or the application thereof
           to any person or circumstance is held invalid, the
           remainder of the article and the application of such
           provisions to other persons or circumstances shall not be
           affected thereby.

      B. Plaintiffs’ Complaints

      Plaintiffs filed their “Complaint for Breach of Duty to

Enforce Article 16 Section 14-96 through Section 14-105 of the

Hawaii County Code and Request for Immediate Injuctive [sic]

Relief and Damages.”     They named as Defendants the members of

the Hawaiʻi County Council (Dominic Yagong, Donald Ikeda, J.

Yoshimoto, Dennis Onishi, Fred Blas, Brittany Smart, Brenda

Ford, Angel Pilago, and Pete Hoffman); Hawaiʻi County Prosecutor


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Jay Kimura and Deputy Prosecutors Mitchell Roth and Charlene

Iboshi; Hawaiʻi County Mayor Billy Kenoi; Hawaiʻi County Chief of

Police Harry Kubojiri; and previous Hawaiʻi County Council

Members Kelly Greenwell, Guy Enriques, and Emily Naeʻole

(collectively, “Defendants”).       Plaintiffs alleged that the

Defendants failed to comply with the LLEP.

      Specifically, the Plaintiffs alleged that the Hawaiʻi County

Council continued “to appropriate cannabis enforcement funds to

the Police Department, Prosecutor’s Office, and the Department

of Corrections,” in violation of (1) Section 14-99’s prohibition

against “the acceptance or the issuing of any funding that is

intended to be used to investigate, cite, arrest, prosecute,

search or seize property for adults for cannabis offenses,” and

(2) Section 14-101’s prohibition on expending “public funds for

the investigation, arrest, or prosecution of any person, [or]

the search or seizure of any property” in a manner inconsistent

with the LLEP.

      The Plaintiffs next asserted that the Hawaiʻi County Council

violated Section 14-102(2) by failing to issue a semi-annual

report in accordance with that section.         The Plaintiffs also

alleged that the Hawaiʻi County Police Department did issue a

report, but the report was incomplete, and the Hawaiʻi County

Council did not ensure the report’s publication.           The Plaintiffs



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also posited that all of the Defendants violated Section

14-102(1) by failing to provide procedures to receive grievances

from individuals.

      The Plaintiffs alleged that the prosecutors and police

violated the LLEP by “continu[ing] to prosecute cannabis cases

where the amount processed or grown is less than 24 plants or

the dried equivalent of 24 ounces. . . .”

      Additionally, the Plaintiffs asserted that the prosecutors

and police “failed to abide by section 14-101(a),” which

prohibits them from expending public funds “for the

investigation, arrest, or prosecution of any person, [or] for

the seizure of any property in a manner inconsistent with the

Lowest Law Enforcement Priority. . . .”

      The Plaintiffs prayed for six items of injunctive relief.

First, they asked that the police and prosecutors be ordered to

immediately cease and desist investigations, arrests, or

prosecutions of any person, or the search and seizure of any

property, in a manner inconsistent with the LLEP.           Second, they

asked that the Hawaiʻi County Council be ordered to establish

procedures for receiving grievances under Section            14-102(1).

Third, they asked that the Hawaiʻi County Council be ordered to

publish semi-annual reports.      Fourth, they asked for general

compliance with the LLEP.      Fifth, the Plaintiffs asked the court

to order the Hawaiʻi County Council to cease authorizing or

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accepting funds for the purposes of investigating, citing,

arresting, prosecuting, searching or seizing property, etc.,

related to cannabis-associated offenses as outlined in the LLEP,

and that all funds allotted to police and prosecutors be

withheld until it could be determined how much money had been

spent presumably in violation of the LLEP.          Sixth, they asked

that the Hawaiʻi County Council be ordered to hold the Hawaiʻi

County Chief of Police accountable for upholding his oath of

office, or else remove the Chief of Police from office.

      The Plaintiffs also prayed for $5,000,000 in punitive

damages for the “willful and malicious violation” of the LLEP by

the Defendants, as well as reasonable compensation to the

Plaintiffs for “their time and expenses comparable to that of

attorneys’ rates in the local community.”

      C.   Motions for Judgment on the Pleadings

      Defendants Yagong, Ikeda, Yoshimoto, Onishi, Blas, Smart,

Ford, Pilago, Hoffmann, Roth, Iboshi, Kenoi, Kubojiri, Naeʻole,

Enriques, Greenwell and Kimura answered the Complaint, denying

each of the allegations, then filed Motions for Judgment on the

Pleadings.2    They argued that the Plaintiffs’ Complaint should be

dismissed “on the grounds that Section 14-96 of the Hawaiʻi

County Code is void because it conflicts with Part IV of Chapter

      2
            Greenwell and Kimura separately filed Answers, and separately
filed a Motion for Judgment on the Pleadings.


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712 of the Hawaii Revised Statutes,” and because it covers the

same subject matter as Hawaiʻi Revised Statutes (“HRS”)

§§ 712-1240 through -1257 (1993), entitled Offenses Related to

Drugs and Intoxicating Compounds.

      In their opposition to Defendants Yagong, Ikeda, Yoshimoto,

Onishi, Blas, Smart, Ford, Pilago, Hoffmann, Roth, Iboshi,

Kenoi, Kubojiri, Naeʻole, and Enriques’ motion for judgment on

the pleadings,3 the Plaintiffs counter-argued that the LLEP “does

not attempt to prohibit or stop defendants from arresting or

prosecuting Chapter 712 violations, nor does it duplicate,

contradict or enter onto a subject that is fully occupied by

general law[;] it merely directs defendants to prioritize and

utilize their time and resources on more important community

issues according to the legislative statutory scheme.”

      The circuit court granted the Defendant’s motions for

judgment on the pleadings and dismissed the case.              In its

orders, the circuit court made the following factual findings:

                   1. Under Section 14-99 of the Hawaiʻi County Code,
             law enforcement activities including prosecution involving
             criminal offenses which fall within the definition of
             Lowest Law Enforcement Priority are to have the lowest
             priority.

      3
            Plaintiffs filed a separate opposition to Greenwell and Kimura’s
motion for judgment on the pleadings. The arguments in the opposition to
Greenwell and Kimura’s motion for judgment on the pleadings differ slightly
from the arguments made to the rest of the defendants, in that the Plaintiffs
argued that the LLEP was “passed by the people of Hawaiʻi County through a
legally binding initiative process,” that “[t]he thrust of this initiative is
fiscal responsibility,” not cannabis, and that the LLEP’s severability clause
renders any invalidated provisions advisory rather than mandatory.


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                 2. Under Article 16 of Chapter 14 of the Hawaiʻi
           County Code, County of Hawaiʻi law enforcement personnel
           are:
                 a) Prohibited from deputizing or commissioning
           federal enforcement personnel from participating in the
           investigation or prosecution of offenses which fall within
           the definition of the Lowest Law Enforcement Priority.
           Section 14-99(c), Hawaiʻi County Code.
                 b) Prohibited from obtaining funds for the
           investigation or prosecution of offenses which fall within
           the definition of the Lowest Law Enforcement Priority.
           Section 14-99(d), Hawaiʻi County Code.
                 c) Prohibited from spending or authorizing the
           spending of funds for the investigation of offenses which
           fall within the definition of the Lowest Law Enforcement
           Priority. Section 14-101(a), Hawaiʻi County Code.
                 3. Article 16, if enforced, would prevent the
           investigation and prosecution of offenses which fall within
           the definition of the Lowest Law Enforcement Priority under
           Section 14-99 of the Hawaiʻi County Code.
                 4. Article 16, if enforced, would prevent the
           investigation and prosecution in the County of Hawaiʻi of
           the following criminal offenses defined under the Hawaiʻi
           Penal Code: Section 712-1247(1)(e) Promoting a Detrimental
           Drug in the First Degree; Section 712-1248(1)(c) Promoting
           a Detrimental Drug in the Second Degree; and Section 712-
           1249(1) Promoting a Detrimental Drug in the Third Degree.

      The circuit court made the following conclusions of law:

                 1. A municipal ordinance may be preempted if it
           covers the same subject matter embraced within a
           comprehensive state statutory scheme disclosing an express
           or implied intent to be exclusive and uniform throughout
           the state or if the municipal ordinance conflicts with
           state law.
                 2. The Penal Code of the State of Hawaiʻi is a
           comprehensive code of penal laws that applies throughout
           the State of Hawaiʻi and is uniformly applied throughout the
           State. Hawaiʻi Revised Statutes, Section 701-106.
                 3. The provisions of Article 16 of Chapter 14,
           Hawaiʻi County Code, are preempted by the provisions of
           Title 37 of the Hawaiʻi Revised Statutes.
                 4. The provisions of Article 16 of Chapter 14,
           Hawaiʻi County Code, are thus unenforceable.

      The circuit court entered Final Judgment, and the

Plaintiffs timely appealed.




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      D.   ICA Appeal

      On appeal, the Plaintiffs raised the following three points

of error, but only the first two remain pursued on certiorari:

            1. The Trial Court erred when it determined the provisions
            of Art. 16, Chapter 14 of the Hawaiʻi County Code
            (hereinafter referred to as “Lowest Priority Ord.” or
            “Ordinance”) were preempted by the provisions of Title 37,
            Hawaiʻi Revised Statutes (“HRS”). The Ordinance does not
            conflict, duplicate, contradict, or enter into an area
            fully occupied by the provisions of HRS, Title 37; nor does
            the Ordinance prohibit what the statute permits, or permit
            what the statute prohibits. . . .
            2. The Trial Court erred when it did not consider the
            Severability Clause of Article 16. The Trial Court also
            erred when it ruled that the entire Ordinance was
            unenforceable. . . .
            3. The Trial Court erred in the Findings of Fact,
            Conclusions of Law, and Order (FOF) by not providing
            sufficient facts to support the ultimate disposition of the
            case. Material facts are omitted or misquoted. As a
            result, the listed facts do not support the correct
            application of the law. Facts cited by the Trial Court do
            not logically lead to the Conclusions of Law. . . .

      In a published opinion, the ICA affirmed the circuit

court’s Final Judgment.       Ruggles v. Yagong, 132 Hawaii 511, 323

P.3d 155 (2014).     The ICA held the following:

            We conclude that the LLEP conflicts with, and is thus
            preempted by state laws governing the investigation and
            prosecution of alleged violations of the Hawaiʻi Penal Code
            concerning the adult personal use of cannabis. We further
            conclude that the LLEP covers the adult personal use of
            cannabis, which is the same subject matter that the
            legislature intended to govern under HRS Chapter 329
            provisions for the regulation of controlled substances.
            The LLEP is therefore preempted by the Hawaiʻi Penal Code
            and HRS Chapter 329, Hawaiʻi’s Uniform Controlled Substances
            Act.

132 Hawaii at 516, 323 P.3d at 160.         The ICA did not address the

LLEP’s severability clause.       The Plaintiffs now challenge the

ICA’s holding that the entirety of the LLEP is in conflict with

state law.

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III.    Standard of Review

       An appellate court reviews a circuit court’s order granting

a motion for judgment on the pleadings de novo.            See Hawaiʻi Med.

Ass’n v. Hawaiʻi Med. Serv. Ass’n, Inc., 113 Hawaiʻi 77, 91, 148

P.3d 1179, 1193 (2006).

IV.    Discussion

       On certiorari, the Plaintiffs argue

            (1) that there is no conflict between the Ordinance and
            Hawaiʻi Revised Statutes, (2) that if there is a conflict,
            there still may be no preemption of the County Ordinance by
            State general laws, and (3) that even if there is
            preemption it is only of those particular sections or parts
            of sections in which a conflict is found, and (4) that if
            in fact there is some error in the Ordinance, it is due to
            actions of the Defendant-Appellees and it is their
            responsibility to fix it.

We address each of these arguments seriatim.

       A.   Preemption under the Second Richardson Prong

       First, the Plaintiffs argue that “there is no conflict

between the Ordinance and Hawaii Revised Statutes. . . .”                We

disagree and affirm the ICA’s clear holding that “the LLEP

conflicts with, and is thus preempted by state law governing the

investigation and prosecution of alleged violations of the

Hawaii Penal Code concerning the adult personal use of

cannabis,” namely HRS Chapter 329 (the Hawaii Uniform Controlled

Substances Act) and HRS §§ 712-1247(1)(e) (1993) (promoting a

detrimental drug in the first degree); -1248(1)(c) (1993)

(promoting a detrimental drug in the second degree); and


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-1249(1) (1993) (promoting a detrimental drug in the third

degree).   132 Hawaii at 515-16, 323 P.3d at 159-60.

      Expanding on the ICA’s analysis, the LLEP also conflicts

with state law requiring the state attorney general and county

prosecuting attorney to investigate and prosecute violations of

the statewide Penal Code.      HRS § 28-2.5(b) (2009) delineates the

investigative powers of the attorney general and county

prosecuting attorneys when conducting criminal investigations.

Pursuant to HRS § 28-2 (2009), the attorney general “shall be

vigilant and active in detecting offenders against the laws of

the State, and shall prosecute the same with diligence.”            HRS

§ 26-7 (2009) does state that “unless otherwise provided by law,

[the department of the attorney general shall] prosecute cases

involving violations of state laws. . . .”         The phrase as

“otherwise provided by law” does not, however, countenance laws

such as the LLEP.    Rather, it recognizes that, although “the

attorney general, as the chief legal officer for the State,” has

“the ultimate responsibility for enforcing penal laws of

statewide application,” “[t]he public prosecutor . . . has been

delegated the primary authority and responsibility for

initiating and conducting criminal prosecutions within his

county jurisdiction.”     Amemiya v. Sapienza, 63 Haw. 424, 427,

629 P.2d 1126, 1129 (1981).      Thus, although the county

prosecutor has been delegated primary prosecutorial duties,

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under Hawaii County Charter § 9-3(a)(2) (2010), the duties of

the prosecuting attorney for the County of Hawaii include

“[p]rosecut[ing] offenses against the laws of the State under

the authority of the attorney general of the State.”            Therefore,

county laws such as the LLEP cannot usurp the attorney general’s

duty, delegated to the prosecuting attorney, to prosecute

violations of the statewide penal code.

      Therefore, the ICA correctly ruled that the LLEP conflicts

with, and is thus preempted by, state law governing the

investigation and prosecution of alleged violations of the

Hawaii Penal Code.

      B.   Preemption under the First Richardson Prong

      Second, the Plaintiffs argue “there still may be no

preemption of the County Ordinance by State general laws,”

pointing to the first prong of the Richardson test, which states

that a “municipal ordinance may be preempted” if it covers the

same subject matter embraced within a comprehensive state

statutory scheme disclosing an express or implied intent to be

exclusive and uniform throughout the state, or if the ordinance

conflicts with state law.      Richardson, 76 Hawaii at 62, 868 P.2d

at 1209 (emphasis added).      The Plaintiffs “disagree that the

Penal Code of the State of Hawaiʻi is comprehensive, even if

uniformly applied throughout the state.”         They contend, “Nothing


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was expressly mentioned in the statutes as to the Hawaiʻi Penal

Code’s exclusivity.” (Emphasis in original).          We read this

argument as challenging the ICA’s conclusion that the LLEP

“covers . . . the same subject matter that the legislature

intended to govern under HRS Chapter 329 provisions for the

regulation of controlled substances.”        132 Hawaii at 516, 323

P.3d at 160.

      The ICA did not need to address Richardson’s first prong

because it had already correctly determined that the ordinance

was preempted under the second prong.        Furthermore, the ICA’s

articulation of Richardson’s first prong was incomplete because

the ICA did not analyze whether HRS Chapter 329 is a

“comprehensive statutory scheme disclosing an express or implied

intent to be exclusive and uniform throughout the state. . . .”

Id.   We note that the ICA incorrectly views the Richardson

preemption test as a single test it calls the “‘comprehensive

statutory-scheme’ test.”      Ruggles, 132 Hawaii at 514, 323 P.3d

at 158.   In actuality, as noted, it is a two-prong test.

      With respect to the first prong, we need not address

whether the LLEP ordinance is field-preempted by state law.             We

note that several other jurisdictions have passed LLEP




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ordinances4, but there are no published opinions addressing the

issue.     We also need not address, in general, whether a

municipal drug ordinance is field-preempted by the state Uniform

Controlled Substances Act.         We note that such a holding is rare

across the nation.       Of the forty-eight5 states that have adopted

some form of the Uniform Controlled Substances Act, only one has

held that its state controlled substances act “occupies the

field of penalizing crimes involving controlled substances, thus

impliedly preempting” a municipal ordinance, which, in that

case, provided for the forfeiture of vehicles used to acquire or

attempt to acquire controlled substances.            O’Connell v. City of

Stockton, 162 P.3d 583, 589, 590 (Cal. 2007).             In so holding,

the Supreme Court of California examined, in “tedious” detail,

the “comprehensive nature of [its state controlled substances

act] in defining drug crimes and specifying penalties (including

forfeiture). . . .”        162 P.3d at 588, 589.      The O’Connell Court

considered the California Uniform Controlled Substances Act “so

thorough and detailed as to manifest the Legislature’s intent to


      4
            According to the Marijuana Policy Project, the following cities
and counties passed LLEP ordinances: Seattle and Tacoma, Washington;
Oakland, Santa Barbara, Santa Cruz, San Francisco, Santa Monica, and West
Hollywood, California; Eureka Springs, Arkansas; Missoula County, Montana;
Denver, Colorado; Fayetteville, Arkansas; Hailey, Idaho, and Kalamazoo and
Ypsilanti, Michigan. Marijuana Policy Project, Lowest Law Enforcement
Priority Jurisdictions, available at http://www.mpp.org/reports/lowest-law-
enforcement.html (last visited May 22, 2015).
      5
            See 9 West’s Hawaii Revised Statutes Annotated, 2013 Pocket Part
269-270 (2013).


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preclude local regulation.”        162 P.3d at 589.      There is no

similar analysis into the comprehensive nature of HRS Chapter

329 in the ICA’s opinion.        Compare O’Connell, 162 P.3d at

588-89, with Ruggles, 132 Hawaii at 515-16, 323 P.3d at 159-60.

      The ICA did not need to reach the field preemption issue,

however, as the Richardson test is stated in the disjunctive,

and the ICA had already correctly held that the LLEP conflicted

with, and was therefore preempted by, HRS Chapter 329 and HRS

§§ 712-1247(1)(e), -1248(1)(c), and -1249(1).            Therefore, we

overrule the ICA’s opinion only to the extent it erroneously

included within its conflict analysis an incomplete articulation

of Richardson’s field-preemption prong.           As it is unnecessary to

address the issue, we make no determination as to whether

Chapter 329 field-preempts the LLEP under the first Richardson

prong.

      C.   The Severability Clause

      Third, the Plaintiffs point out that Section 14-105

contains a severability clause, which reads

                  In the event, and only in the event, that a court of
            competent jurisdiction should find one or more of the
            sections, or parts of the sections of this article illegal,
            or any provision of this article or the application thereof
            to any person or circumstance is held invalid, the
            remainder of the article and the application of such
            provisions to other persons or circumstances shall not be
            affected thereby.

Plaintiffs argue, “Neither the circuit court nor the

intermediate court of appeals have addressed any section of the

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Ordinance, other than the following subsections:           HCC

§ 14-99(c); HCC § 14-99(d); and HCC § 101(a).”          Section 14-99(c)

prohibits county prosecuting attorneys and law enforcement from

being deputized or commissioned by a federal law enforcement

agency for investigating cannabis offenses.          Sections 14-99(d)

and -101(a) prohibit the Hawaii County Council, county

prosecuting attorneys, or law enforcement from using public

funds for the investigation and prosecution of cannabis

offenses.    Presumably, the Plaintiffs intend for only these

provisions to be severed from the LLEP and invalidated.

      In this case, however, the LLEP’s overarching mandate is

the decriminalization of the adult personal use of marijuana.

Section 14-96(5) states that the purpose of the LLEP is to

“[r]educe the fear of prosecution and the stigma of criminality

from non-violent citizens who harmlessly cultivate and/or use

cannabis for personal, medicinal, religious, and recreational

purposes.”    This purpose is supported by the following finding:

“Law abiding adults are being arrested and imprisoned for

nonviolent cannabis offenses, clogging our court dockets,

overcrowding our prisons, tying up valuable law enforcement

resources and costing taxpayers hundreds of thousands of dollars

in Hawaiʻi County alone each year.”       Section 14-97(f).

      Section 14-98 defines “Lowest Law Enforcement Priority” in

a way that calls for law enforcement officials to prioritize the

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possession and cultivation of 24 or fewer marijuana plants (or

the possession of 24 or fewer ounces of usable cannabis) by

persons over 21 years of age on private property at the absolute

lowest level.    In service of decriminalizing adult personal use

of cannabis, the following emphasized provisions directly

prohibit the police and prosecutors from investigating and

prosecuting adult personal use of cannabis, as defined under

Section 14-98.   The following emphasized provisions also

prohibit the county, police, and prosecutors from engaging in

indirect activities (such as using public funds and seeking

federal deputization) related to the investigation and

prosecution of adult personal use of cannabis, as defined under

Section 14-98:

         Section 14-99. Lowest law enforcement priority policy
         relating to the adult personal use of cannabis.
         (a) The cultivation, possession and use for adult personal
         use of cannabis shall be the Lowest Law Enforcement
         Priority for law enforcement agencies in the county.
         (b) The council, the police commissioner, the chief of
         police and all associated law enforcement staff, deputies,
         officers and any attorney prosecuting on behalf of the
         county shall make law enforcement activity relating to
         cannabis offenses, where the cannabis was intended for
         adult personal use, their Lowest Law Enforcement Priority.
         Law enforcement activities relating to cannabis offenses
         include but are not limited to the prosecution of cannabis
         offenses involving only the adult personal use of cannabis.
         (c) Neither the chief of police, the police commissioner,
         nor any attorney prosecuting on behalf of the county, nor
         any associated law enforcement staff, deputies, nor
         officers shall seek, accept or renew any formal or informal
         deputization or commission by a federal law enforcement
         agency for the purpose of investigating, citing, or
         arresting adults, nor for searching or seizing property
         from adults for cannabis offenses subject to the Lowest Law
         Enforcement Priority of cannabis where such activities
         would be in violation of that policy, nor shall such
         authorities exercise such powers that may be ancillary to
         deputization or commissioning for another purpose.

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          (d) The council shall not authorize the acceptance or the
          issuing of any funding that is intended to be used to
          investigate, cite, arrest, prosecute, search or seize
          property from adults for cannabis offenses in a manner
          inconsistent with the county’s Lowest Law Enforcement
          Priority policy.

          Section 14-100. County prosecuting attorneys.
                To the full extent allowed by the Constitution of the
          State of Hawaiʻi, the people, through their county
          government, request that neither the county prosecuting
          attorney nor any attorney prosecuting on behalf of the
          county shall prosecute any violations of the sections of
          chapter 712-1240 of the Hawaiʻi Revised Statutes regarding
          possession or cultivation of cannabis in a manner
          inconsistent with the Lowest Law Enforcement Priority, as
          described in section 14-98 and 14-99 of this article; in
          cases where the amount possessed or grown is less than
          twenty four plants or the dried equivalent, possession for
          adult personal use shall be presumed.

          Section 14-101. Expenditure of funds for cannabis
          enforcement.
          (a) Neither the council, nor the police commissioner, nor
          the chief of police, nor any attorneys prosecuting on
          behalf of the county, nor any associated law enforcement
          staff, deputies, or officers shall spend or authorize the
          expenditure of any public funds for the investigation,
          arrest, or prosecution of any person, nor for the search or
          seizure of any property in a manner inconsistent with the
          Lowest Law Enforcement Priority as defined in section 14-98
          and 14-99 of this article.
          (b) The council shall not support the acceptance of any
          funds for the marijuana eradication program.

      Also of note, miscellaneous provisions in the LLEP direct

further action premised upon the validity of the Lowest Law

Enforcement Policy.     First, Section 14-102, entitled “Community

oversight,” directs the Hawaiʻi County Council to provide

“procedures to receive grievances from individuals who believe

that they were subjected to law enforcement activity contrary to

the Lowest Law Enforcement Priority of cannabis,” and to

“[p]ublish a report semi-annually on the implementation of this

chapter. . . .”     Second, Section 14-103, entitled “Notification


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of local, state, and federal officials,” requires the county

clerk to send an annual letter to local, state, and federal

government officials, requesting “that Cannabis policies here

within the county of Hawaiʻi be dealt with from our local law

enforcement only.”

      In short, every section of the LLEP (with the exception of

non-substantive Section 14-104, entitled “Statutory and

constitutional interpretation,” and non-substantive Section

14-105, entitled “Severability”) directs the county, county

officials, police, and/or prosecutors to cease investigating and

prosecuting violations of HRS 329, which lists marijuana as a

controlled substance under Schedule I, and HRS

§§ 712-1247(1)(e), -1248(1)(c), and -1249(1), which criminalize

knowing possession of marijuana, in amounts ranging from “any

amount” to “one pound or more.”       Therefore, invalidation of all

of the LLEP was necessary.      Every substantive section of the

LLEP conflicts with, and is therefore preempted by, state law.

      D.   The Effect of Section 14-104 of the LLEP

      Fourth, the Plaintiffs point out that Section 14-104,

entitled “Statutory and constitutional interpretation,” provides

that if any part of the LLEP is invalidated, “then that specific

mandatory provision only shall be deemed advisory and expression

of the will of the people that the provision shall be

implemented into law by whichever government branch or official

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who has the power to implement it,” thus placing the

responsibility upon the Defendants to “fix” the LLEP to make it

enforceable.    As the entire LLEP conflicts with, and is

therefore preempted by, state law, however, no part of it is

amenable to implementation by the Defendants.

      Therefore, we respectfully disagree with the Dissent’s

position that portions of the LLEP should remain as “advisory

ordinances.”    A county’s power to promulgate ordinances is

governed by Article VIII, Section 1 of the Constitution of the

State of Hawaii, which states, “The legislature shall create

counties, and may create other political subdivisions within the

State, and provide for the government thereof.           Each political

subdivision shall have and exercise such powers as shall be

conferred under general laws.”        (Emphasis added.)      Thus,

pursuant to the Hawaii Constitution, a county’s powers are

limited to those conferred by the legislature under general

laws.   The legislature has outlined the “General powers and

limitations of the counties” in HRS § 46-1.5 (2012).             HRS

§ 46-1.5(13) (2012) provides

           Each county shall have the power to enact ordinances deemed
           necessary to protect health, life, and property, and to
           preserve the order and security of the county and its
           inhabitants on any subject or matter not inconsistent with,
           or tending to defeat, the intent of any state statute where
           the statute does not disclose an express or implied intent
           that the statute shall be exclusive or uniform throughout
           the State. . . .




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      As noted earlier, we need not address whether Chapter 329

discloses a “comprehensive statutory scheme disclosing an

express or implied intent to be exclusive or uniform throughout

the state,” the first Richardson prong, which parallels this

subsection.    Even assuming Chapter 329 does not disclose such a

scheme, subsection (13) authorizes county ordinances “to protect

health, life, and property, and to preserve the order and

security of the county and its inhabitants” as long as they are

“not inconsistent with, or [do not] tend[] to defeat, the intent

of [Chapter 329].”    As we held earlier, the purported “advisory

ordinances” in the LLEP conflict with Chapter 329 and do not

meet this standard.

      Moreover, Section 14-104, which the dissent posits can

remain on the books as an advisory statement expressing the will

of the people, is not merely advisory.         Rather, it states “that

the provision shall be implemented into law by whichever

government branch or official who has the power to implement

it. . . .”    (Emphasis added).     It also states that “the council

shall take all actions within their power to work with those

branches of government to express the will of the people and

encourage, support, and request the implementation of those

provisions.”   Id. (emphasis added).       Therefore, the section is

actually mandatory, not advisory.



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      As noted earlier, state law places responsibility for

enforcing penal laws of statewide application on the attorney

general.   See HRS §§ 26-7, 28-2, 28-2.5.         Primary responsibility

for initiating and conducting criminal prosecutions within

counties is further delegated to county prosecuting attorneys.

See Amemiya, 63 Haw. at 427, 629 P.2d at 1129.           Not only does

the LLEP conflict with state law, the mandatory language of

Section 14-104 creates confusion regarding the duties of

government officials.

      Finally, in HRS § 50-15 (2012), the legislature clearly

provided that “[n]otwithstanding the provisions of this chapter

[governing Charter Commissions], there is expressly reserved to

the legislature the power to enact all laws of general

application throughout the State on matters of concern and

interest . . ., and neither a charter nor ordinances adopted

under a charter shall be in conflict therewith.”            (Emphasis

added).    As the “advisory ordinances” contained in the LLEP

conflict with State law, they cannot stand.

V.    Conclusion

      The LLEP is preempted solely because it “conflicts with

state law.”    We need not, and do not, address whether the LLEP

“covers the same subject matter embraced within a comprehensive

state statutory scheme disclosing an express or implied intent

to be exclusive and uniform throughout the state . . . .”

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Richardson, 76 Hawaii at 62, 868 P.2d at 1209.         We also hold

that the entire LLEP is invalidated because it conflicts with,

and is therefore preempted by, state law.        With these

clarifications made, we affirm the ICA’s judgment on appeal,

which affirmed the circuit court’s Final Judgment.

Michael D. Ruggles,                     /s/ Mark E. Recktenwald
Rev. Nancy Waite Harris,
Kenneth V. Miyamoto-Slaughter,          /s/ Paula A. Nakayama
Wendy Tatum, David Tatum,
and Robert S. Murray                    /s/ Sabrina S. McKenna
petitioners pro se

Michael J. Udovic
for respondents




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