Spirit of Aloha Temple et al v. County of Maui et al

Filing 239

ORDER Granting Defendant State of Hawaii's Motion For Summary Judgment With Respect To Count V and Defendant County of Maui's Joinder Therein, Ruling That Only "As Applied" Challenges Are Asserted With Respect To Remaining Claims, and Denying Counter Motion For Summary Judgment With Respect To Count V re 214 217 227 .For the reasons set forth above, the court grants the State of Hawaii's motion for summary judgment and the County of Maui's joinder therein a nd denies Plaintiffs' counter motion for summary judgment. That is, the court grants summary judgment in favor of Defendants with respect to the prior restraint claim asserted in Count V. With respect to the remaining counts, only factual challenges remain. The State of Hawaii is, of course, free to limit its intervention to defending against facial challenges only. Signed by JUDGE SUSAN OKI MOLLWAY on 4/23/2019. (cib)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SPIRIT OF ALOHA TEMPLE AND
FREDRICK R. HONIG,

)
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF MAUI,
)
)
Defendant,
)
)
and
)
)
STATE OF HAWAII,
)
)
Intervenor-Defendant )
______________________________ )

CIVIL NO. 14-00535 SOM/RLP
ORDER GRANTING DEFENDANT
STATE OF HAWAII'S MOTION FOR
SUMMARY JUDGMENT WITH RESPECT
TO COUNT V AND DEFENDANT
COUNTY OF MAUI’S JOINDER
THEREIN, RULING THAT ONLY “AS
APPLIED” CHALLENGES ARE
ASSERTED WITH RESPECT
TO REMAINING CLAIMS, AND
DENYING COUNTER MOTION FOR
SUMMARY JUDGMENT WITH RESPECT
TO COUNT V

ORDER GRANTING DEFENDANT STATE OF HAWAII'S MOTION FOR
SUMMARY JUDGMENT WITH RESPECT TO COUNT V AND DEFENDANT COUNTY OF
MAUI'S JOINDER THEREIN, RULING THAT ONLY "AS APPLIED"
CHALLENGES ARE ASSERTED WITH RESPECT
TO REMAINING CLAIMS, AND DENYING COUNTER MOTION FOR
SUMMARY JUDGMENT WITH RESPECT TO COUNT V
I.

INTRODUCTION.
Plaintiff Fredrick R. Honig bought land on Maui zoned

for agricultural use and leased that land to Plaintiff Spirit of
Aloha Temple, which, among other things, conducted a commercial
wedding operation on the agricultural land until the County of
Maui told it to stop.

Thereafter, Plaintiffs applied for a

Special Use Permit to build a church and hold religious events,
including weddings, on the agriculture land, uses not allowed
without a Special Use Permit.

After the requested Special Use

Permit was denied, Plaintiffs filed this action, asserting

federal and state claims against the Maui Planning Commission and
the County of Maui.
On January 27, 2016, this court dismissed the Planning
Commission as a party and declined to exercise supplemental
jurisdiction over Count X, which asked this court to resolve an
appeal from the Planning Commission’s denial of the Special Use
Permit.

This court stayed the remaining claims as a matter of

Pullman abstention, allowing Plaintiffs to appeal the denial of
the Special Use Permit through the state courts.
In the state court, Plaintiffs reserved their right to
have their federal claims decided by this court, informing the
state trial court that the only claim before the state court
involved the appeal of the Planning Commission’s decision.

On

November 17, 2016, the state trial court affirmed the Planning
Commission’s decision.

No further appeal was filed.

This court

subsequently dissolved the stay so that the remaining claims
could be addressed.
The State of Hawaii, which intervened in this action,
now moves for summary judgment, arguing that res judicata bars
the prior restraint claim asserted in Count V and that, even if
res judicata does not apply, there was no impermissible prior
restraint as a matter of law.

Plaintiffs filed a counter motion

for summary judgment with respect to the prior restraint claim.
This court rules that res judicata does not bar the prior

2

restraint claim and turns to the merits of that claim, granting
the State of Hawaii’s motion and the County of Maui’s Joinder
therein with respect to the merits of that claim.
The state also seeks partial summary judgment with
respect to Counts I, II, IV, VI, VII, VIII, and IX (no Count III
is asserted in the Complaint), arguing that Plaintiffs are only
asserting as applied challenges in those counts, not facial
challenges.

Plaintiffs do not oppose this part of the motion,

and this court therefore rules that only as applied challenges
are pled in those counts.

The court leaves the merits of those

challenges for later proceedings.
II.

BACKGROUND.
The factual background for this case was set forth in

this court’s Order Denying Motions for Summary Judgment of July
20, 2018.

See 322 F. Supp. 3d 1051.

That background is

incorporated by reference and is summarized and supplemented
below.
In September 1994, Frederick Honig purchased
agricultural property on Haumana Road in Haiku, Hawaii.
In September 2007, Spirit of Aloha Temple, Inc., was
incorporated; Honig was listed as its Senior Minister.
Spirit of Aloha Temple practice “Integral Yoga.”

Honig and

For purposes of

these motions, no party contests the validity of Honig’s religion
or the sincerity of his beliefs.

3

On October 12, 2007, Spirit of Aloha Temple, through
Honig, applied for a Special Use Permit for the property to be
used for a “Church, church operated bed and breakfast
establishment, weddings, special events, day seminars, and
helicopter landing pad.”

ECF No. 183-3, PageID # 2592.

On June

30, 2008, Spirit of Aloha Temple amended the Special Use Permit
application to define Spirit of Aloha Temple’s activities as
including “a weekly service, classes, special events, day
programs and weddings.”

ECF No. 183-3, PageID # 2593.

On March 30, 2010, the Planning Commission for the
County of Maui held a hearing on the Special Use Permit
application.

See Findings of Fact, Conclusions of Law and

Decision and Order of Maui Planning Commission.
3, PageID # 2583.

See ECF No. 183-

The Maui Planning Commission voted 5 to 3 to

deny the application.

Id., PageID #s 2586-87; 2590.

In September 2012, the County of Maui issued Honig
three notices of violation for building a structure without a
proper permit, conducting transient vacation rentals on property
where such rentals were not allowed, and conducting commercial
weddings on property where such weddings were not allowed.

The

County of Maui ordered Honig to cease and desist the conduct.
See ECF No. 183-8, PageID #s 2877-78.
Honig ultimately settled these matters.

The County of Maui and

83.

4

See id., PageID #s 2877-

On November 21, 2012, Spirit of Aloha Temple, through
Honig, submitted a second Special Use Permit application to use
the property for church activities.

ECF No. 183-6, PageID #2803.

Spirit of Aloha Temple sought to use the property for a classroom
on weekdays; a weekly church service; and educational,
inspirational, and spiritual events, including “Hawaiian Cultural
Events, such as Hula performances, Seminars on Hawaiian Plant
Based Nutrition, Cultural Music Performances, and Spiritual
commitment ceremonies including weddings.”

Id., PageID # 2811.

The Maui Planning Commission denied the 2012 Special
Use Permit application, stating:
The Commission finds that there is evidence
of record that the proposed uses expressed in
this Application should they be approved
would increase vehicular traffic on Haumana
Road, which is narrow, winding, one-lane in
areas, and prone to flooding in inclement
weather. The Commission finds that Haumana
Road is regularly used by pedestrians,
including children who use the road to access
the bus stop at the top of the road. The
commission finds that granting the
Application would adversely affect the health
and safety of residents who use the roadway,
including endangering human life. The
Commission finds that the health and safety
of the residents’ and public’s use of Haumana
Road is a compelling government interest and
that there is no less restrictive means of
ensuring the public’s safety while granting
the uses requested in the Application.
ECF No. 185-9, PageID # 3288-89.
The Maui Planning Commission noted that section 205-6
of Hawaii Revised Statutes allows certain “unusual and reasonable
5

uses” within agricultural and rural districts, in addition to
uses for which the property is classified.

Id., PageID # 3289.

The Maui Planning Commission stated that, to determine whether a
proposed use is an “unusual and reasonable use,” section 15-15-95
of Hawaii Administrative Rules sets forth “guidelines” for the
granting of an exception to agricultural restrictions.

It was

the Maui Planning Commission’s understanding that a Special Use
Permit application could be denied if any of those “guidelines”
was not satisfied.

See Depo. of William Spence at 31 (Feb. 5,

2018), ECF No. 215-18, PageID # 4649.
In allowing “[c]ertain ‘unusual and reasonable’ uses
within agricultural . . . districts other than those for which
the district is classified . . . ,”
http://luc.hawaii.gov/wp-content/uploads/2012/09/LUC-Admin-Rules_
Chapter15-15_2013.pdf) (Nov. 2, 2013), section 15-15-95(c)
provides five “guidelines” for determining uses that “may” be
permitted:
(1) The use shall not be contrary to the
objectives sought to be accomplished by
chapters 205 and 205A, HRS, and the rules of
the commission;
(2) The proposed use would not adversely
affect surrounding property;
(3) The proposed use would not unreasonably
burden public agencies to provide roads and
streets, sewers, water drainage and school
improvements, and police and fire protection;

6

(4) Unusual conditions, trends, and needs
have arisen since the district boundaries and
rules were established; and
(5) The land upon which the proposed use is
sought is unsuited for the uses permitted
within the district.
Id.

These “guidelines” are at the heart of the parties’ dispute

in this case.
The Commission concluded that subsections 15-1595(c)(2) and (3) were not satisfied.1

With respect to

subsection 15-15-95(c)(2), the Commission concluded that the
proposed uses “would adversely affect the surrounding properties”
given concerns about the safety of Haumana Road.
# 3290.

Id., PageID

With respect to subsection 15-15-95(c)(3), the

Commission concluded that the proposed uses would increase
traffic and burden public agencies providing roads and streets,
police and fire protection.

The Commission stated that it had

“significant concerns about the narrowness of Haumana Road and
vehicle and pedestrian safety both of potential visitors to the

1

The Commission did not specifically discuss subsection 1515-95(c)(1)--whether the use was contrary to the objectives
sought to be accomplished by chapters 205 and 205A of Hawaii
Revised Statutes and the rules of the Land Use Commission. It
noted that it had received no evidence with respect to
subsection 15-15-95(c)(4)--whether there were unusual conditions,
trends, and needs that had arisen since the State Land Use
district boundaries and rules were established. It also
determined that subsection 15-15-95(c)(5) supported the issuance
of the permit in that “the land which the proposed use is sought
is suitable for the uses allowed in the Agricultural District.”
ECF No. 185-9, PageID # 3291.
7

Property and property owners along Haumana Road and the fact that
the Property is at the terminus of Haumana Road and therefore
traffic to the Property would negatively impact residents’ safety
and use of Haumana Road.”

Id.

On November 26, 2014, Plaintiffs filed the Complaint in
this matter.

See ECF No. 1.

Count X sought to appeal the Maui

Planning Commission’s denial of the 2012 Special Use Permit
application.

The Complaint asserted other federal and state

claims, including a prior restraint claim based on the Maui
Planning Commission’s allegedly unbridled discretion to grant or
deny the Special Use Permit.

See Complaint, Count V, ECF No. 1,

PageID # 37.
On January 27, 2016, this court declined to exercise
supplemental jurisdiction over the agency appeal claim asserted
in Count X.

The court stayed the remaining claims under Pullman

abstention.

See ECF No. 109, PageID # 1279 (“The court stays the

present case pending the state circuit court’s determination of
the matters raised in Count X.”).
In state court, Plaintiffs clearly announced three
times that, while pursuing the administrative appeal in state
court, they were reserving their right to have their federal
claims adjudicated in federal court.

First, on February 25,

2016, in their notice of appeal with respect to the agency
decision, they told the state court in a footnote:

8

Appellants reserve for independent
adjudication in the federal courts all
federal questions, including but not limited
to any federal First or Fourteenth Amendment
claims, and claims arising under the
Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc et seq, for
adjudication before the United States
District Court. See England v La. State Bd.
of Med. Exam’rs, 375 U.S. 411 (1964).
ECF No. 215-5, PageID # 4308 n.1.
Second, in their Opening Brief filed in state court on
April 25, 2016, Plaintiffs reiterated that reservation.
No. 215-6, PageID # 4387.

ECF

This time, Plaintiffs added, “The only

cause of action to be determined in this state court agency
appeal is Maui County’s violation of the Hawaii State
Administrative Procedures Act, Hawaii Revised Statutes, Chapter
91 et seq.”

Id.

Third, in oral argument in state court, Plaintiffs
stated:
We are required under the Federal Court
doctrine to preserve our federal claims as
well as our constitutional claims, US
constitutional claims, so that we do not
waive them if we end up before the Federal
Court again.
So we just want to reiterate for the
record our preservation under the US Supreme
Court case England vs. Louisiana Board of
Medical Examiners . . . that we are
preserving the claims, specifically regarding
the Federal Religious Land Use and
Institutionalized Persons Act, 42 USC, as
well as our claims under the First Amendment
for religious freedom and the Fourteenth
Amendment, and we will not be arguing those
9

claims today but, you know, not waive those
arguments if we need to make them again at
the Federal Court.
ECF No. 215-7, PageID # 4417.
On November 17, 2016, the Circuit Court of the Second
Circuit, State of Hawaii, affirmed the Maui Planning Commission’s
decision, but did not adjudicate any of the claims that this
court had retained but stayed.

See ECF No. 183-14.

The state

court did not “find clear error in the Maui Planning Commission’s
factual findings or error in its legal conclusions.

Moreover,

the Commission’s decision does not appear to be arbitrary,
capricious, or an abuse of discretion.”

Id., PageID # 3005.

state court further noted:
In reviewing the findings of fact, the
Commission’s decision, the record on appeal,
and applying Maui County Code § 19.510.07 and
Hawai`i Administrative Rules § 15-15-95,
there is more than sufficient basis for the
Planning Commission’s denial of the Special
Use Permit.
The Applicants-Appellants argue it was
clear error for the Commission to base its
denial on traffic and road safety concerns.
The Commission had more than enough evidence
to be concerned about traffic and road
safety. Numerous individuals expressed
concern about traffic and road safety.
Id.

The state court went on to determine that
traffic and road safety were not the only
concerns of the Commission. The Commission
found, among other things, the proposed uses
would adversely affect surrounding properties
in conflict with Hawai`i Administrative Rules
§ 15-15-95(c)(2). The record contains
10

The

significant evidence of the negative impact
the proposed uses would inflict upon
surrounding properties.
Id., PageID #s 3005-06.

No appeal was filed and the state-court

agency appeal is now a final decision on the merits.
The stay of the remaining claims before this court has
been dissolved and the State of Hawaii has intervened as a
Defendant.
III.

See ECF Nos. 114 and 207.
SUMMARY JUDGMENT STANDARD.
On July 20, 2018, this court denied motions for summary

judgment.

See ECF 200.

The summary judgment standard was set

forth in that order and is incorporated here by reference.
IV.

ANALYSIS.
Before the court are counter motions for summary

judgment and a joinder with respect to the prior restraint claim
asserted in Count V, and the State of Hawaii’s unopposed partial
summary judgment motion seeking a determination that only factual
(i.e., as applied) challenges are raised in the remaining counts.
As discussed in the following pages, the State of Hawaii’s motion
with respect to Count V and the County of Maui’s joinder therein
are granted, and Plaintiffs’ counter motion is denied.

11

A.

Because Plaintiffs Reserved Their Right to Have
This Court Adjudicate The Prior Restraint Claim
Asserted in Count V, the State of Hawaii’s Res
Judicata Argument is Unpersuasive.

The State of Hawaii seeks summary judgment with respect
to the prior restraint claim asserted in Count V, arguing that
the state court judgment with respect to the agency appeal should
have res judicata effect and thus bars Count V.

This court

disagrees.
At the outset, this court notes that it stayed this
case pending the state court’s determination of Count X, in which
Plaintiffs challenged the Planning Commission’s denial of the
permit application.

This court did not direct Plaintiffs to seek

a state court determination of any other count pled in this case,
and Plaintiffs filed an administrative appeal in state court
limited to the matters raised in Count X.

See ECF No. 215-5.

Nor does the doctrine of res judicata operate to bar
litigation of counts other than Count X.
The res judicata doctrine precludes parties or their
privies from relitigating claims that were or could have been
raised in an earlier action in which there is a final judgment on
the merits.

See Allen v. McCurry, 449 U.S. 90, 94 (1980).

Here,

while the state court has issued a final judgment with respect to
the agency appeal, that final judgment has no res judicata effect
with respect to the federal claims originally asserted in this
court.

The federal claims were stayed pursuant to this court’s
12

exercise of Pullman abstention, and Plaintiffs specifically told
the state court they were reserving those federal claims for this
court to adjudicate.
In England v. Louisiana State Board of Medical
Examiners, the Supreme Court noted that the “right of a party
plaintiff to choose a Federal court where there is a choice
cannot be properly denied.”
marks and citation omitted).

375 U.S. 411, 415 (1964) (quotation
It further noted that abstention is

a judge-made doctrine “according appropriate deference to the
respective competence of the state and federal court systems.”
Id. (quotation marks and citation omitted).

When this court

abstains in favor of allowing a state court to decide state-law
claims (Pullman abstention), this court, far from abdicating its
jurisdiction, only postpones it.

Id.

As the Ninth Circuit

explains:
The England rule is a salutary one. It
preserves the role of state courts as the
final expositors of state law as recognized
by the abstention doctrine, as well as the
interests of putative federal litigants who
have the right to choose a Federal court
where there is a choice.
Los Altos El Granada Inv'rs v. City of Capitola, 583 F.3d 674,
685 (9th Cir. 2009) (quotation marks, alterations, and citations
omitted).
England provides that “a litigant who has properly
invoked the jurisdiction of a Federal District Court to consider
13

federal constitutional claims” should not be “compelled, without
his consent and through no fault of his own, to accept instead a
state court’s determination of those claims.”

375 U.S. at 415.

England notes that a litigant may therefore “reserve” the right
to return to federal court to have federal claims adjudicated.
Id. at 421-22.

However, the litigant may forgo the right to have

federal claims decided by a federal court by “freely and without
reservation” submitting the claims for adjudication by a state
court.

Id. at 419.
In United Parcel Service, Inc. v. California Public

Utilities Commission, 77 F.3d 1178, 1186 (9th Cir. 1996), the
Ninth Circuit held that a footnote reservation made on the first
page of a nine-page motion was a sufficient England reservation.
In the present case, Plaintiffs’ three “reservations” exceeded
that sufficient United Parcel Service reservation.

Plaintiffs’

statements were not equivalent to something buried on the 149th
page of a motion.
Cir. 1980).

See Lurie v. Cal., 633 F.2d 786, 787-88 (9th

Instead, Plaintiffs told the state court in the

Notice of Appeal and Opening Brief:
Appellants reserve for independent
adjudication in the federal courts all
federal questions, including but not limited
to any federal First or Fourteenth Amendment
claims, and claims arising under the
Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc et seq, for
adjudication before the United States
District Court. See England v La. State Bd.
of Med. Exam’rs, 375 U.S. 411 (1964).
14

ECF No. 215-5, PageID # 4308 n.1; ECF No. 215-6, PageID # 4387.
The Opening Brief went on to say, “The only cause of action to be
determined in this state court agency appeal is Maui County’s
violation of the Hawaii State Administrative Procedures Act,
Hawaii Revised Statutes, Chapter 91 et seq.”

Id.

The State of Hawaii argues that Plaintiffs essentially
waived their first two reservations with respect to the federal
prior restraint claim when, in oral argument, they supposedly
limited the reservation to claims under “the Federal Religious
Land Use and Institutionalized Persons Act, 42 USC, as well as .
. . claims under the First Amendment for religious freedom and
the Fourteenth Amendment.”

ECF No. 215-7, PageID # 4417.

But

Plaintiffs appear to have simply been incomplete during oral
argument, as they had earlier said, “We are required under the
Federal Court doctrine to preserve our federal claims as well as
our constitutional claims, US constitutional claims, so that we
do not waive them if we end up before the Federal Court again.”
Id.

Having told the state court that it was only being asked to

adjudicate the agency appeal, Plaintiffs cannot be said to have
freely and without reservation agreed to submit more than the
agency appeal to the state court.
Reading the three “reservations” together with
Plaintiffs’ statement to the state court that it was only being
asked to adjudicate the agency appeal and not any federal claim,

15

this court concludes that Plaintiffs reserved their prior
restraint claim.

This court rejects the State of Hawaii’s

assertion that Plaintiffs’ reservation was not good enough
because it did not specifically mention the prior restraint
claim.

Plaintiffs told the state court that this court had

stayed their federal claims pending the outcome of the statecourt agency appeal.

At the same time, Plaintiffs informed the

state court that they were reserving all of their federal claims
for adjudication by this court.

Plaintiffs’ reservations were

sufficient to inform the state court that they were seeking
federal judicial resolution of their prior restraint claim.2
Of course, while ruling that Plaintiffs’ England
reservation makes the res judicata doctrine inapplicable to the
prior restraint claim, this court is not ignoring the collateral
estoppel issue.

To the extent a necessary issue may have been

fully litigated in state court that is identical to an issue
before this court, Plaintiffs are precluded from taking a second
bite of the apple.

An England reservation does not “prevent[]

the operation of the issue preclusion doctrine.”

2

San Remo Hotel,

Plaintiffs also have pled in the present case state
constitutional claims. Count VII alleges a violation of their
free exercise of religion under Hawaii’s constitution, and Count
IX alleges an equal protection violation under Hawaii’s
constitution. No party addresses any res judicata issue with
respect to these counts, which the parties agree assert claims of
invalidity as to the application of state law. This court
therefore does not discuss here any prior restraint issue in
connection with any state constitutional claim.
16

L.P. v. San Francisco City & Cty., 364 F.3d 1088, 1095 (9th Cir.
2004) (quotation marks and citation omitted).

Additionally,

under the circumstances presented here, no party may relitigate
the merits of the agency appeal.
B.

See Allen, 449 U.S. at 94.

Summary Judgment is Granted in Favor of
Intervenor-Defendant State of Hawaii With Respect
to the Prior Restraint Claim Asserted in Count V.

Both the State of Hawaii and Plaintiffs seek summary
judgment with respect to the merits of the prior restraint claim
asserted in Count V.

The court grants summary judgment in favor

of the State of Hawaii with respect to that count.
Count V asserts that the County of Maui’s second denial
of the Special Use Permit to Honig and Spirit of Aloha Temple
amounts to a prior restraint in violation of their First
Amendment free speech and free exercise rights, actionable under
42 U.S.C. § 1983.

See Moonin v. Tice, 868 F.3d 853, 858 (9th

Cir. 2017) (examining First Amendment prior restraint claim
asserted under § 1983); Outdoor Media Grp., Inc. v. City of
Beaumont, 506 F.3d 895, 903 (9th Cir. 2007) (same).
The First Amendment provides that “Congress shall make
no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.”
U.S. Const. amend. I.

Given the First Amendment, the Supreme
17

Court in Shuttlesworth v. City of Birmingham, 394 U.S. 147
(1969), explained that “a law subjecting the exercise of First
Amendment freedoms to the prior restraint of a license, without
narrow, objective, and definite standards to guide the licensing
authority, is unconstitutional.” Id. at 150–51.
The Ninth Circuit has further explained that a
regulation is an unconstitutional prior restraint if it “vests
unbridled discretion in a government official over whether to
permit or deny expressive activity.”

Kreisner v. City of San

Diego, 1 F.3d 775, 805 (9th Cir. 1993) (quotation marks and
citation omitted).

An ordinance or regulation that makes the

peaceful enjoyment of First Amendment rights “contingent upon the
uncontrolled will of an official--as by requiring a permit or
license which may be granted or withheld in the discretion of
such official--is an unconstitutional censorship or prior
restraint.”

Epona v. Cty. of Ventura, 876 F.3d 1214, 1222 (9th

Cir. 2017).

“That is, absent definite and objective guiding

standards, permit requirements present a threat of content-based,
discriminatory enforcement.”
omitted).

Id. (quotation marks and citation

“While permitting guidelines need not eliminate all

official discretion, they must be sufficiently specific and
objective so as to effectively place some limits on the authority
of City officials to deny a permit.”
citation omitted).

18

Id. (quotation marks and

The question before this court with respect to Count V
is whether the Maui Planning Commission had unbridled discretion
to deny Plaintiffs’ second Special Use Permit application.

To

answer this question, the court must analyze the statutes and
regulations governing the Planning Commission.

Section 205-

4.5(a) of Hawaii Revised Statutes sets forth permissible uses of
property located in agricultural districts, such as the Haumana
Road property at issue here.
or wedding operations.

These uses do not include churches

With certain exceptions, section 205-

4.5(b) of Hawaii Revised Statutes prohibits uses that are not
expressly permitted under section 205-4.5(a).

The exception

applicable here is a Special Use Permit granted by a county
planning commission, as set forth in section 205-6 of Hawaii
Revised Statutes.
In considering whether to grant or deny Plaintiffs a
Special Use Permit, the Maui Planning Commission was guided by
Maui County Code, Title 19, Article II, Chapter 19.30A.
https://library.municode.com/hi/county_of_maui/codes/code_of_ordi
nances?nodeId=TIT19ZO_ARTIICOZOPR_CH19.30AAGDI_19.30A.060SPUS.
Under section 19.30A.060.A.9, churches and religious institutions
are permitted in an agricultural district “if a special use
permit, as provided in section 19.510.070[B] of this title, is
obtained.”

Under that section, the Maui Planning Commission may

approve such a permit by “review[ing] whether the use complies

19

with the guidelines established in section 15-15-95 of the rules
of the land use commission of the State.”

Id. (available at

https://library.municode.com/hi/county_of_maui/codes/code_of_ordi
nances?nodeId=TIT19ZO_ARTVADEN_CH19.510APPR_19.510.070SPUSPE).
Section 15-15-95(c) includes five guidelines for determining
whether a proposed use is an “unusual and reasonable use” that
“may” be permitted.

Plaintiffs challenge section 15-15-95(c) as

conferring unbridled discretion.
1.

Plaintiffs Lack Constitutional Standing to
Assert A Facial Challenge to Ordinance
Sections That Were Not Applied.

An ordinance may be facially unconstitutional in one of
two ways: (1) by seeking to prohibit such a broad range of
protected activity that it is unconstitutionally overbroad; or
(2) by being unconstitutional in every conceivable application
and incapable of ever being applied in a valid manner because it
is unconstitutionally vague or impermissibly restricts a
protected activity.

First Resort, Inc. v. Herrera, 860 F.3d

1263, 1271 (9th Cir. 2017); Vlasak v. Superior Court of Cal. ex
rel. Cty. of Los Angeles, 329 F.3d 683, 688 (9th Cir. 2003); Foti
v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998)).
Courts recognize facial overbreadth when “conduct has
required official approval under laws that delegated standardless
discretionary power to local functionaries, resulting in
virtually unreviewable prior restraints on First Amendment
20

rights.”

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

The

overbreadth type of facial challenge is at issue here; Plaintiffs
assert that section 15-15-95(c) amounts to an unconstitutional
prior restraint by giving the Maui Planning Commission
standardless discretionary power to grant or deny Special Use
Permit applications.

G.K. Ltd. Travel v. City of Lake Oswego,

436 F.3d 1064, 1082 (9th Cir. 2006) (“The prior restraint
doctrine requires review of both the law’s procedural guarantees
and the discretion given to law enforcement officials. . . .

To

avoid impermissible discretion, the challenged ordinance should
contain adequate standards to guide the official’s decision and
render it subject to effective judicial review.” (quotation marks
and citation omitted)).
In adjudicating Plaintiffs’ overbreadth challenge based
on alleged unbridled discretion amounting to a prior restraint,
this court is mindful that its power to declare a statute or
regulation unconstitutional derives from its power and duty to
decide cases and controversies.

That is, to satisfy Article

III’s case and controversy requirement, Plaintiffs must have the
“irreducible minimum” of “constitutional standing,” meaning they
must have: 1) an injury in fact that is “actual, concrete, and
particularized,” 2) a causal connection between defendant’s
conduct and the plaintiff’s injury, and 3) a likelihood that the
injury can be redressed by the court.

21

Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992); Get Outdoors II, LLC v.
City of San Diego, Cal., 506 F.3d 886, 891 (9th Cir. 2007).
Federal courts supplement this “constitutional standing” with the
doctrine of “prudential standing,” which requires Plaintiffs’
claims to be “sufficiently individualized to ensure effective
judicial review.”

Get Outdoors II, 506 F.3d at 891.

Prudential standing issues are not applicable to cases
involving First Amendment freedom of expression.

See Forsyth

Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 129 (1992) (“It
is well established that in the area of freedom of expression an
overbroad regulation may be subject to facial review and
invalidation, even though its application in the case under
consideration may be constitutionally unobjectionable.”); Get
Outdoors II, 506 F.3d at 891 (“When a plaintiff states an
overbreadth claim under the First Amendment . . . , we suspend
the prudential standing doctrine because of the special nature of
the risk to expressive rights.”).
A First Amendment overbreadth challenge “operates as a
narrow exception permitting the lawsuit to proceed on the basis
of ‘a judicial prediction or assumption that the statute’s very
existence may cause others not before the court to refrain from
constitutionally protected speech or expression.’”
Broadrick, 413 U.S. at 612).

Id. (quoting

Accordingly, one who is subject to

a law or ordinance requiring a license or permit to conduct
22

expressive activity may facially challenge the statute or
ordinance as vesting unbridled discretion in a government
official without having applied for the license or permit.

See

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755-56
(1988) (“our cases have long held that when a licensing statute
allegedly vests unbridled discretion in a government official
over whether to permit or deny expressive activity, one who is
subject to the law may challenge it facially without the
necessity of first applying for, and being denied, a license”);
Thornhill v. State of Alabama, 310 U.S. 88, 97 (1940) (“Proof of
an abuse of power in the particular case has never been deemed a
requisite for attack on the constitutionality of a statute
purporting to license the dissemination of ideas.”); Gaudiya
Vaishnava Soc. v. City & Cty. of San Francisco, 952 F.2d 1059,
1062 (9th Cir. 1990) (“Because this case involves a licensing
ordinance which allegedly vests unbridled discretion in a
government official over whether to deny or permit expressive
activity, the nonprofits may challenge it facially without the
necessity of first applying for, and being denied, a permit.”).
In other words, “facial attacks on the discretion
granted a decisionmaker are not dependent on the facts
surrounding any particular permit decision.”

Long Beach Area

Peace Network v. City of Long Beach, 574 F.3d 1011, 1020 (9th
Cir. 2009) (quotation marks, alterations, and citation omitted).
23

Courts allow challenges to prior restraints of
protected expression because of “the evil inherent in a licensing
system.

The power of the licensor . . . is pernicious not merely

by reason of the censure of particular comments but by reason of
the threat to censure comments on matters of public concern.

It

is not merely the sporadic abuse of power by the censor but the
pervasive threat inherent in its very existence that constitutes
the danger to freedom of discussion.”
(1940).

Thornhill, 310 U.S. at 97

“[T]he mere existence of the licensor’s unfettered

discretion, coupled with the power of prior restraint,
intimidates parties into censoring their own speech, even if the
discretion and power are never actually abused.”

City of

Lakewood, 486 U.S. at 757; Epona v. Cty. of Ventura, 876 F.3d
1214, 1221 (9th Cir. 2017) (“such restraints may have a chilling
effect on protected speech because potential speakers may choose
to self-censor rather than either acquire a license or risk
sanction for speaking without one”).

Additionally,

the absence of express standards makes it
difficult to distinguish, “as applied,”
between a licensor’s legitimate denial of a
permit and its illegitimate abuse of
censorial power. Standards provide the
guideposts that check the licensor and allow
courts quickly and easily to determine
whether the licensor is discriminating
against disfavored speech. Without these
guideposts, post hoc rationalizations by the
licensing official and the use of shifting or
illegitimate criteria are far too easy,
making it difficult for courts to determine
in any particular case whether the licensor
24

is permitting favorable, and suppressing
unfavorable, expression.
City of Lakewood, 486 U.S. at 758; Epona, 876 F.3d at 1221
(“where a regulation lacks clear standards for the issuance of a
permit, an as-applied challenge may fail to provide sufficient
protection against content-based censorship”).
While “prudential standing” requirements are relaxed
for First Amendment overbreadth challenges, the Ninth Circuit
requires this court to nevertheless “ask whether the plaintiff
has suffered an injury in fact and can satisfactorily frame the
issues on behalf of . . . non-parties.”
F.3d at 891.

Get Outdoors II, 506

That is, the Ninth Circuit requires the Lujan

elements for “constitutional standing” to be satisfied even when
a plaintiff is asserting an overbreadth challenge.
Get Outdoors II is instructive.

Id.

Get Outdoors II

submitted billboard permit applications to the City of San Diego.
The city denied the applications based on an ordinance
prohibiting new billboards, the failure of the applicant to
submit key documents, and the size and height of the proposed
billboards.

Id. at 889-90.

Get Outdoors II argued that the

billboard regulations were overbroad and constituted an
impermissible prior restraint because officials had unbridled
discretion to grant or deny the billboard permits.

Id. at 890.

After recognizing that “prudential standing” concerns
are relaxed for overbreadth claims, the Ninth Circuit ruled that
25

Get Outdoors II lacked “constitutional standing” to assert its
claims. Id. at 891, 895.

While a party subject to a licensing

statute that provides unbridled discretion to a government
official may challenge the statute without first applying for the
permit, the Ninth Circuit ruled that, to comport with
“constitutional standing” principles, the plaintiff still had to
be “‘[o]ne who might have had a license for the asking.’” Id.
(quoting Thornhill v. Alabama, 310 U.S. 88, 97 (1940)).

Get

Outdoors II’s billboard applications were denied on grounds that
were constitutionally valid (e.g., the proposed billboards
exceeded the number, height, and size limitations).

Moreover,

Get Outdoors II indicated no intent to submit applications for
billboards that complied with the requirements.

The Ninth

Circuit therefore ruled that Get Outdoors II was not genuinely
threatened by an unconstitutional prior restraint.

Id.

That is,

Get Outdoors II, if it stuck with its original application, was
not a plaintiff who “might have had a license for the asking.”
Id.
The reasoning of Get Outdoors II has been criticized.
See, e.g., Nitanny Outdoor Advertising, LLC v. College Township,
22 F. Supp. 3d 392, 410 (M.D. Pa. 2014) (saying the Ninth
Circuit’s approach seems “misguided”).

But whatever

complications are presented, this court is committed to following

26

the binding precedent in Get Outdoors II and the tenets announced
in Supreme Court and other applicable Ninth Circuit decisions.
For example, the Supreme Court has stated that, in
exercising jurisdiction, courts will not “anticipate a question
of constitutional law in advance of the necessity of deciding it”
and will not “formulate a rule of constitutional law broader than
is required by the precise facts to which it is to be applied.”
United States v. Raines, 362 U.S. 17, 21 (1960).

“Kindred to

these rules is the rule that one to whom application of a statute
is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be
unconstitutional.”

Id.

Thus, a defendant who was not sentenced

to death may not challenge a death penalty statute.
Roe, 177 F.3d 901, 907 (9th Cir. 1999).

Houston v.

Similarly, a defendant

may not challenge a prohibition on selling bald eagle parts as
violative of his First Amendment freedom of religion rights when
selling such eagle parts is not actually part of his religion.
United States v. Top Sky, 547 F.2d 486, 488-89 (9th Cir. 1976).
Given the “constitutional standing” requirements
applicable to First Amendment overbreadth claims, courts have
limited plaintiffs to challenging only the portions of ordinances
that actually cause them injury:
Because those three provisions are the only
sections of the code upon which the City
27

actually relied in denying plaintiffs’ permit
application, plaintiffs must establish
standing--injury, causation and
redressability–with respect to those
provisions. Plaintiffs may not challenge any
other provisions . . . because none of those
provisions, including the restrictions on
political speech, caused them injury. That
plaintiffs may have standing to challenge the
provisions of the sign ordinance that caused
their injury “does not provide [them] with a
passport to explore the constitutionality of
every provision of the [sign ordinance].”
Covenant Media of S. Car., LLC v. City of N.
Charleston, 493 F.3d 421, 429 (4th Cir.2007);
see Get Outdoors II, 506 F.3d at 893 (“Get
Outdoors II cannot leverage its injuries
under certain, specific provisions to state
an injury under the sign ordinance
generally.”).
Herson v. City of San Carlos, 714 F. Supp. 2d 1018, 1024 (N.D.
Cal. 2010); accord Get Outdoors II, LLC v. City of El Cajon, 2007
WL 4170230, at *5 (S.D. Cal. Nov. 20, 2007) (holding that,
because billboard sign applicant never showed that it would have
been genuinely threatened by a prior restraint given its failure
to propose billboard within height and size limitations,
applicant lacked standing to pursue claims), aff'd sub nom. Get
Outdoors II, LLC v. City of El Cajon, Cal., 403 F. App’x 284 (9th
Cir. 2010) (affirming in memorandum decision determining
plaintiff’s lack of standing for failure to “show how this court
could act to overturn denial of the permits, and thereby redress
those injuries”).
Put another way, in analyzing the causation component
of standing, a court should look at whether the plaintiff has
28

shown that its injury is “fairly traceable” to a challenged
statutory provision.

Republican Party of Minn. v. Klobucher, 381

F.3d 785, 792 (8th Cir. 2004).
Here, Plaintiffs challenge subsections (1) through (4)
of section 15-15-95.

The court notes that Plaintiffs are not

challenging subsection 15-15-95(c)(5) in this action.

See ECF

No. 225, PageID #s 4876-77 (indicating that Plaintiffs are only
challenging subsections 15-15-95(c)(1) through (4)).

This court

notes that the Planning Commission made no findings with respect
to subsections (1) and (4) and does not appear to have considered
them in denying Plaintiff the requested permit.

Having suffered

no injury tied to subsections (1) and (4), Plaintiffs lack
constitutional standing to challenge those subsections.

More

fundamentally, Plaintiffs appear to have misapplied the very
concept of a facial challenge in the context of a challenge to
all or any part of section 15-15-95(c).

As explained in the

following paragraphs, section 15-15-95(c), by its terms, speaks
to the Planning Commission’s discretion in granting a Special Use
Permit, which is not the act Plaintiffs complain about.
2.

Section 15-15-95(c)’s Statement of When the
Maui Planning Commission “May” Grant a
Special Use Permit Does Not Vest the
Commission With Unbridled Discretion to Deny
a Permit.

Section 15-15-95(c) provides, “Certain ‘unusual and
reasonable’ uses within agricultural and rural districts other
29

than those for which the district is classified may be
permitted.” (emphasis added).

Plaintiffs argue that the word

“may” impermissibly vests the Maui Planning Commission with
unbridled discretion to decline to issue a Special Use Permit.
This purported facial challenge fails.
On its face, section 15-15-95(c) speaks to the Planning
Commission’s ability to deviate from the overarching restriction
on nonagricultural uses in an agricultural district.

Any

discretion articulated by section 15-15-95(c) is thus the
discretion to grant an exception to or variance from the
“default” prohibition on nonagricultural issues.

If this

discretion could be viewed as unbridled, as Plaintiffs allege,
any facial challenge should come in the context of the granting
of a variance.

Thus, for example, a person purporting to be

aggrieved by the granting of a Special Use Permit to a
neighboring business might bring a facial challenge to section
15-15-95(c).
Plaintiffs instead bring a purported facial challenge
to section 15-15-95(c) in the context of the denial of a permit
application.

Because section 15-15-95(c) on its face goes to

discretion to grant a permit, a challenge to section 15-15-95(c)
in the context of a denial must be a challenge to the application
of the provision.

30

Even if Plaintiffs could be said to be raising a facial
challenge to the discretion implicit in the use of the word “may”
in section 15-15-95(c), that challenge would fail.
In Thomas v. Chicago Park District, 534 U.S. 316
(2002), the Supreme Court examined a Chicago ordinance that
provided that “the Park District may deny an application for
permit” on any one of a number of grounds.

Id. at 319, n.1.

The

Supreme Court rejected the argument that the ordinance failed to
contain adequate standards to guide an official’s decision and
render it subject to effective judicial review.

Id. at 324.

The

Court noted that an application could be denied
when the application is incomplete or
contains a material falsehood or
misrepresentation; when the applicant has
damaged Park District property on prior
occasions and has not paid for the damage;
when a permit has been granted to an earlier
applicant for the same time and place; when
the intended use would present an
unreasonable danger to the health or safety
of park users or Park District employees; or
when the applicant has violated the terms of
a prior permit.
Id.

The Supreme Court stated, “These grounds are reasonably

specific and objective, and do not leave the decision to the whim
of the administrator.”

Id. (quotation marks and citation

omitted).
The Court specifically rejected the contention “that
the criteria set forth in the ordinance are insufficiently
precise because they are described as grounds on which the Park
31

District ‘may’ deny a permit, rather than grounds on which it
must do so.”

Id. at 324-25 (stating, “we think the permissive

nature of the ordinance furthers, rather than constricts, free
speech”).

The use of the word “may” in section 15-15-95(c), like

the use of the word “may” in the ordinance in Thomas, does not,
by itself, provide the Maui Planning Commission with improper
unbridled discretion, quite apart from the problem noted earlier
with the focus in section 15-15-95(c) on when a variance may be
granted.
Gaudiya Vaishnava Society v. City & County of San
Francisco, 952 F.2d 1059, 1060 (9th Cir. 1990), relied on by
Plaintiffs, is distinguishable.

Gaudiya examined an ordinance

providing that San Francisco’s “Chief of Police may issue a
permit” to nonprofits wishing to sell merchandise.

Id. at 1065.

Because the ordinance lacked specific grounds for granting or
denying a permit, the Ninth Circuit concluded that it improperly
gave the Chief of Police unfettered discretion.

Id. at 1065-66.

Gaudiya does not stand for the proposition that any permit
ordinance using the word “may” improperly gives officials
unfettered discretion.

32

3.

Section 15-15-95(c)’s Reference to
“Guidelines” Does Not Provide the Maui
Planning Commission With Unbridled
Discretion.

Plaintiffs also argue that the reference in section
15-15-95(c) to “guidelines” simply provides guidance that the
Maui Planning Commission was free to accept or reject, rather
than the “definite and objective guiding standards” required by
the Ninth Circuit’s decision in Epona, 876 F.3d at 1222.

This

court is unpersuaded.
This court has previously noted,
In Save Sunset Beach Coal. v. City & County
of Honolulu, 102 Haw. 465, 78 P.3d 1 (2003),
the Hawaii Supreme Court instructed that
“guidelines” in an ordinance or statute
“denote individual factors that are not
mandatory in themselves, but instead provide
direction or guidance with respect to the
ultimate decision[.]” 78 P.3d at 15.
Spirit of Aloha Temple v. Cty. of Maui, 2016 WL 347298, at *6 (D.
Haw. Jan. 27, 2016).
But Epona recognized that “permitting guidelines need
not eliminate all official discretion.”

Id.

Instead, guidelines

“must be sufficiently specific and objective so as to effectively
place some limits on the authority of City officials to deny a
permit.”

Id. (quotation marks and citation omitted).

As

discussed in more detail later in this order, the language of
section 15-15-95(c) is specific enough that the reference to

33

“guidelines” does not render the provision an impermissible prior
restraint.
4.

Section 15-15-95(c)’s Lack of a Time-Frame Is
Not Properly Before This Court.

Plaintiffs’ counter motion seeks summary judgment with
respect to the prior restraint claim asserted in Count V on the
additional ground that section 15-15-95 lacks the procedural
safeguard of a requirement that a decision be timely.

But no

such alleged defect is pled in the Complaint.
Count V incorporates the previous paragraphs of the
Complaint and then states:
The standards set forth in the County of
Maui’s zoning regulations governing special
permits for places of worship, and the
standards applied by the Commission in
reviewing and denying Spirit of Aloha Temple
and Frederick Honig’s Special Use Permit do
not provide a person of ordinary intelligence
a reasonable opportunity to understand
whether such land uses are permitted or
prohibited and, as such, constitutes an
unconstitutional prior restraint on
Plaintiff’s protected expression and
religious exercise under the First Amendment.
Such standards unconstitutionally afford the
Commission unbridled discretion in its review
of a Special Use Permit application for a
place of worship.
ECF No. 1, PageID # 37.

Count V puts Defendants on notice that

the “standards” allegedly provided the Maui Planning Commission
with unbridled discretion, but does not put them on notice of any
alleged lack of procedural safeguards.

Nothing in Count V puts

Defendants on notice that Plaintiffs believe the ordinance is
34

invalid because it lacks a time-frame in which the commission
must decide whether to grant or deny the permit.

Instead, the

allegation goes to alleged unbridled discretion in the substance
of a decision.

See id.

Plaintiffs argue that, pursuant to Rule 8(a) of the
Federal Rules of Civil Procedure, pleadings need only put
opposing parties on notice of claims.
F.3d 871, 877 (9th Cir. 2001).

See Fontana v. Haskin, 262

They say that “[s]pecific legal

theories need not be pleaded so long as sufficient factual
averments show that the claimant may be entitled to some relief.”
They argue that Paragraphs 85, 91, 112, 120, and 132 put
Defendants on notice of their claim that section 15-15-95 lacks
the procedural safeguard of requiring a timely decision.

The

court disagrees; none of these allegations gives any inkling that
Plaintiffs might be challenging any provision on the basis of its
alleged lack of a timeliness safeguard.
Paragraph 85 alleges the date on which Plaintiffs filed
their Special Use Permit application, as well as some of the
details of that application.

See ECF No. 1, PageID #s 18-19.

Paragraph 91 alleges that the Maui Planning Commission scheduled
a public hearing for March 25, 2014.

Id., PageID # 21.

Paragraph 112 alleges that the hearing was held on March 25,
2014.

Id., PageID # 26.

Paragraph 120 alleges that, on April 8,

2014, the Maui Planning Commission reconsidered the Special Use

35

Permit application.

While these paragraphs discuss the dates of

various actions with respect to the application, nothing in the
Complaint puts Defendants on notice that Plaintiffs are
challenging the absence of any deadline.
Fontana, cited by Plaintiffs, recognizes that pleadings
must put opposing parties on notice of a claim.

262 F.3d at 877.

While Plaintiffs were not required to allege their legal
theories, “doing so makes it more likely that the opposing party
will have notice and [a] better understanding of what is at
issue.”

Id.

At the very least, the factual allegations relied

on should be sufficient to provide notice.

The dates of certain

events do not put an opposing party on notice that Plaintiffs are
claiming the process was allowed to be slow.
5.

Subsection 15-15-95(c)(3) Did Not Give the
Maui Planning Commission Unbridled Discretion
to Deny Plaintiffs’ Special Use Permit
Application.

This court turns now to an examination of a specific
guideline relied on by the Maui Planning Commission.

Earlier in

this order, this court discussed the mismatch between Plaintiffs’
facial challenge to section 15-15-95(c) and the actual language
of subsection 15-15-95(c), which speaks to the granting of
Special Use Permits, not to the denial Plaintiffs complain about.
Even assuming that that lack of “fit” were not fatal to
Plaintiffs’ facial challenge, Plaintiffs do not show an

36

actionable constitutional defect in the language of subsection
15-15-95(c)(3).
Subsection 15-15-95(c)(3) provides that an “unusual and
reasonable use” may be permitted if the “proposed use would not
unreasonably burden public agencies to provide roads and streets,
sewers, water drainage and school improvements, and police and
fire protection.”

Plaintiffs argue that this guideline provided

the Maui Planning Commission with unbridled discretion with
respect to denying Plaintiffs’ Special Use Permit application.
As discussed above, “a law subjecting the exercise of
First Amendment freedoms to the prior restraint of a license,
without narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional.”
U.S. at 150–51.

Shuttlesworth, 394

Thus, an ordinance making “the peaceful

enjoyment of freedoms which the Constitution guarantees
contingent upon the uncontrolled will of an official--as by
requiring a permit or license which may be granted or withheld in
the discretion of such official--is an unconstitutional
censorship or prior restraint upon the enjoyment of those
freedoms.”

Id.

Even when permitting schemes are content-neutral

on their face, “the mere existence of the licensor’s unfettered
discretion” may intimidate parties into self-censoring their
speech.

Id.

37

“Licensing regimes whose sole purpose is to regulate
competing uses of public space are evaluated as a content-neutral
time, place, and manner permitting scheme,” rather than “the
extraordinary procedural requirements governing traditional prior
restraints.”

Seattle Affiliate of Oct. 22nd Coal. to Stop Police

Brutality, Repression & Criminalization of a Generation v. City
of Seattle, 550 F.3d 788, 798 (9th Cir. 2008).

To be a valid

time, place, and manner restriction for purposes of the First
Amendment, a permitting ordinance “(1) must not delegate overly
broad discretion to a government official; (2) must not be based
on the content of the message; (3) must be narrowly tailored to
serve a significant governmental interest; and (4) must leave
open ample alternatives for communication.”

Id. at 798.

In analyzing ordinances that do not require officials
to explain the permitting decision and do not provide for review
of the decision, courts “look to the totality of the factors to
assess whether this Ordinance contains adequate safeguards to
protect against official abuse.”

Id. at 799.

In City of Lakewood, the Supreme Court explained:
Standards provide the guideposts that check
the licensor and allow courts quickly and
easily to determine whether the licensor is
discriminating against disfavored speech.
Without these guideposts, post hoc
rationalizations by the licensing official
and the use of shifting or illegitimate
criteria are far too easy, making it
difficult for courts to determine in any
particular case whether the licensor is
38

permitting favorable, and suppressing
unfavorable, expression.
Id. at 758.
Unless an ordinance has “definite and objective guiding
standards, permit requirements present a threat of content-based,
discriminatory enforcement.”

Epona, 876 F.3d at 1222.

Permitting guidelines “must be sufficiently specific and
objective so as to effectively place some “limits on the
authority of City officials to deny a permit.”
marks and citations omitted).

Id.

(quotation

Whether an ordinance is

“sufficiently specific and objective” requires a “context
specific” analysis.

Id.

In Shuttlesworth, the Supreme Court held that a statute
granted excessive discretion in allowing a city to deny a parade
permit if “the public welfare, peace, safety, health, decency,
good order, morals or convenience require that it be refused.”
394 U.S. at 149-50.

The Supreme Court ruled that the parade

statute conferred upon officials “virtually unbridled and
absolute power” to prohibit parades, as the officials were guided
“only by their own ideas of ‘public welfare, peace, safety,
health, decency, good order, morals or convenience.’”
150.

Id. at

The Supreme Court ruled that “a law subjecting the exercise

of First Amendment freedoms to the prior restraint of a license,
without narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional.”
39

Id. at 150-51.

The Ninth Circuit has established that an ordinance is
unconstitutionally vague when it provides an official with
discretion to deny a permit based on ambiguous and subjective
reasons.

For example, in Desert Outdoor Advertising, Inc. v.

City of Moreno Valley, 103 F.3d 814, 817-19 (9th Cir. 1996), the
Ninth Circuit invalidated a sign permit ordinance requiring city
officials to find that a sign “will not have a harmful effect
upon the health or welfare of the general public and will not be
detrimental to the welfare of the general public and will not be
detrimental to the aesthetic quality of the community or the
surrounding land uses.”

The Ninth Circuit ruled that this

language contained
no limits on the authority of City officials
to deny a permit. City officials have
unbridled discretion in determining whether a
particular structure or sign will be harmful
to the community’s health, welfare, or
“aesthetic quality.” Moreover, City
officials can deny a permit without offering
any evidence to support the conclusion that a
particular . . . sign is detrimental to the
community. Thus, we conclude that the permit
requirement is unconstitutional.
Id. at 819.

The Ninth Circuit described the ordinance as

improperly giving city officials “discretion to deny a permit on
the basis of ambiguous and subjective reasons.”

Id. at 818.

Similarly, in Seattle Affiliate of the October 22nd
Coalition, the Ninth Circuit invalidated a parade ordinance
giving the chief of police unbridled discretion to force an

40

organization to march on sidewalks, rather than in the streets.
While the ordinance granted no discretion in issuing a parade
permit, it allowed the chief of police to “modify the place and
hour of formation, the proposed line of movement or march, and
the scheduled starting time in the interest of vehicular or
pedestrian traffic safety.”

550 F.3d at 791, 803.

The Ninth

Circuit explained:
the very absence of clear standards in the
Parade Ordinance, the lack of any decisionmaking trail for us to review and the absence
of any administrative appeals process
underscore the obvious risk that officials
could engage in content-based discrimination
that would be effectively immune from
judicial scrutiny. It is this very risk of
abuse that is intolerable under the First
Amendment.
Id., 550 F.3d at 802–03.

Because the chief of police had

unbridled discretion with respect to the details of the parade,
such as moving a parade off the streets and onto a sidewalk, the
parade ordinance violated the First Amendment.

Id. at 803.

While Shuttlesworth, City of Moreno Valley, and Seattle
Affiliate of the October 22nd Coalition invalidated provisions,
the Ninth Circuit, in G.K. Ltd. Travel v. City of Lake Oswego,
436 F.3d 1064 (9th Cir. 2006), held that there was no First
Amendment violation with respect to a sign ordinance that
regulated the type, size, and design of signs.

“In addition to

regulating the dimensions and characteristics of all signs in the
City, the Code includes a permit and design review process that
41

requires those seeking to erect a sign to allow City officials to
review the sign for readability, clarity and compatibility” and
provides for an appeal process.

Id.

at 1069.

The sign

ordinance did not provide officials with unbridled discretion:
The City may deny permits only when the sign
does not comport with the Code’s reasonably
specific size and type criteria or is not
compatible with the surrounding environment.
Both reference to the surrounding environment
and the “compatibility” determination are
explicitly defined in the Code. Officials
are to look only to the proposed sign’s
relationship with other nearby signs, other
elements of street and site furniture and
with adjacent structures. In determining
whether the sign is compatible, the Code
instructs permitting officials to consider a
limited and objective set of criteria, namely
“form, proportion, scale, color, materials,
surface treatment, overall sign size and the
size and style of lettering.”
Id. at 1083 (quotation marks and citation omitted).
The Ninth Circuit distinguished the “aesthetic quality
of the community” ordinance at issue in City of Moreno, noting
that the sign ordinance in G.K. Ltd. required officials to
examine whether a sign was “compatible with the surrounding
environment,” as defined in the ordinance, required the officials
to explain their decision, and provided for review of the
decision.

Id. at 1083-84.

“Although the design review criteria

are somewhat elastic and require reasonable discretion to be
exercised by the permitting authority, this alone does not make
the Sign Code an unconstitutional prior restraint.”

42

Id. at 1084.

Three other Ninth Circuit cases are particularly
helpful in defining when a provision runs afoul of the
prohibition on unbridled discretion.

First, Desert Outdoor

Advertising, Inc. v. City of Oakland, 506 F.3d 798 (9th Cir.
2007), examined a prior restraint claim arising out of a freeway
sign ordinance with standards falling between the amorphous
health and welfare requirements invalidated in City of Moreno and
the “compatible with the surrounding environment” ordinance
approved in G.K. Ltd.

The Oakland officials were allowed to

grant a sign variance if three conditions were met:
First, strict compliance would have to
“result in practical difficulty or
unnecessary hardship inconsistent with the
purposes of the zoning restrictions, due to
unique physical or topographic circumstances
or conditions of design.” Second, strict
compliance would have to “deprive the
applicant of the privileges enjoyed by owners
of similarly zoned property.” . . . [Third],
a variance could “not constitute a grant of
special privilege.”
506 F.3d at 801.3

The Ninth Circuit noted that these three

variance conditions “are significantly more concrete and allow
far less subjectivity” than the “abstract standards” invalidated
in City of Moreno.

Id. at 807.

3

A fourth condition was dropped during the pendency of the
appeal. That condition stated that “a variance could ‘not
adversely affect the character, livability, or appropriate
development of abutting properties or the surrounding area, and
[could] not be detrimental to the public welfare.’” City of
Oakland, 506 F.3d at 801 (quoting Oakland Planning Code
§ 17.148.050(A)).
43

The Ninth Circuit explained:
Whether denial of a variance “would deprive
the applicant of privileges enjoyed by owners
of similarly zoned property” depends on
objective comparisons to similarly situated
properties. Whether a variance constitutes a
“grant of special privilege” likewise turns
on an objective inquiry: whether the variance
allows the applicant to engage in conduct
otherwise forbidden by the City. Questions
of “practical difficulty” and “unnecessary
hardship” are less concrete, but
§ 17.148.050(A) defines these criteria
specifically in terms of “unique physical or
topographic circumstances or conditions of
design.” This limitation is “reasonably
specific,” G.K. Ltd. Travel, 436 F.3d at
1083, and sufficiently constrains “the
authority of City officials to deny a
permit.” Moreno Valley, 103 F.3d at 818.
Id. at 807.
Second, Outdoor Media Group, Inc. v. City of Beaumont,
506 F.3d 895 (9th Cir. 2007), upheld a billboard ordinance
against a First Amendment unbridled discretion challenge.

The

ordinance instructed the official to “ensure that any sign
proposal is in conformance with this Chapter and is consistent
with its intent and purpose.”

Id. at 904.

“The city’s

delineated intent and purpose includes encouraging ‘a desirable
urban character which has a minimum of overhead clutter,’
enhancing the ‘economic value of the community and each area
thereof through the regulation of the size, number, location,
design and illumination of signs,’ and encouraging ‘signs which
are compatible with on-site and adjacent land uses.’” Id.

44

The

ordinance also required “all signs to be ‘compatible with the
style or character of existing improvements upon lots adjacent to
the site,’ including incorporating specific visual elements such
as type of construction materials, color, or other design
detail.”

Id.

The Ninth Circuit held that “these restrictions

sufficiently cabined the Director of Planning’s discretion by
providing adequate standards to guide the official’s decision.”
Id. (quotation marks and citation omitted).
Third, Epona v. County of Ventura, 876 F.3d 1214 (9th
Cir. 2017), also presented a situation between the “abstract
standards” invalidated in City of Moreno and the sufficient
standards of G.K. Ltd.

In Epona, to obtain a permit, an

applicant had to prove to the satisfaction of the decision-making
authority that seven conditions were satisfied.

The proposed use

had to be:
(a) consistent with the intent and provisions
of the County’s General Plan and of Division
8, Chapters 1 and 2, of the Ventura County
Ordinance Code;
(b) compatible with the character of
surrounding, legally established development;
(c) not obnoxious or harmful, and must not
impair the utility of neighboring property or
uses;
(d) not detrimental to the public interest,
health, safety, convenience, or welfare;
(e) compatible with existing and potential
land uses in the general area where the
development is to be located;
45

(f) on a legal lot; and
(g) approved in accordance with the
California Environmental Quality Act and all
other applicable laws.
Epona, 876 F.3d at 1223-24 (quotation marks, alterations, and
citation omitted).

Because the ordinance required that each of

the seven conditions had to be met, the Ninth Circuit invalidated
the ordinance, ruling that, “if one condition confers an
impermissible degree of discretion, the specificity of a separate
condition will not save the scheme.”

Id. at 1224.4

Epona ruled

that conditions (a) through (e) did not provide sufficient
guidance to permitting officials.

Id.

In particular, the Ninth

Circuit concluded without analysis that conditions (c) and (d)
mirrored those struck down in City of Moreno.

Id.

In the present case, Plaintiffs challenge the
“guidelines” for “unusual and reasonable” uses within an
agricultural district set forth in subsections 15-15-95(c)(1) to
(4).

Subsection (5) is not being challenged in this case.

See

Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d
1022, 1025 n.1 (9th Cir. 2006) (referring to judicial review of
“only those portions [of permit ordinances and regulations] that
4

The statement in Epona recognizing that “if one condition
confers an impermissible degree of discretion, the specificity of
a separate condition will not save the scheme” applied to the
context in which all seven conditions had to be met before a
permit issued. Epona differs from the present case, which
involves a regulation that does not require satisfaction of all
five guidelines.
46

[parties] specifically challenge,” and cautioning against viewing
a court as “having reviewed or approved aspects of the ordinances
or implementing regulations not here challenged”).
The guidelines say that a Special Use Permit may be
granted upon consideration of matters such as the following:
(1) The use shall not be contrary to the
objectives sought to be accomplished by
chapters 205 [Land Use Commission] and 205A
[Coastal Zone Management], HRS, and the rules
of the commission;
(2) The proposed use would not adversely
affect surrounding property;
(3) The proposed use would not unreasonably
burden public agencies to provide roads and
streets, sewers, water drainage and school
improvements, and police and fire protection;
(4) Unusual conditions, trends, and needs
have arisen since the district boundaries and
rules were established; and
(5) The land upon which the proposed use is
sought is unsuited for the uses permitted
within the district.
The Maui Planning Commission believed it could deny Plaintiffs’
Special Use Permit application if any one of the “guidelines” was
not satisfied.

See Depo. of William Spence at 31 (Feb. 5, 2018),

ECF No. 215-18, PageID # 4649.

Plaintiffs have not claimed that

nonsatisfaction of more than one guideline was required to deny a
permit.
The Maui Planning Commission’s belief that section 1515-95(c) was instructive as to the denial of a permit actually

47

involves an extrapolation from the language of section 15-1595(c).

Section 15-15-95(c) speaks to guidelines for the granting

of a Special Use Permit.
extrapolation.

Plaintiffs appear to agree with this

In any event, the court sees no reason to

conclude that the invalidation of one of the “guidelines” would
necessarily invalidate the whole permitting scheme.

As the Ninth

Circuit noted in City of Moreno, “[g]enerally, only that part of
an ordinance that is constitutionally infirm will be invalidated,
leaving the rest intact.”

103 F.3d at 821; see also City of

Oakland, 506 F.3d at 802 (“we are obligated to interpret a
statute, if it is fairly possible, in a manner that renders it
constitutionally valid”).
The guideline in subsection 15-15-95(c)(3) for
determining whether a Special Use Permit should be granted for an
“unusual and reasonable” use points to consideration of the
proposed use as “not unreasonably burden[ing] public agencies to
provide roads and streets, sewers, water drainage and school
improvements, and police and fire protection.”

The required

examination of the burden on agencies with respect to “roads and
streets, sewers, water drainage and school improvements, and
police and fire protection” provides a sufficiently specific,
narrow, objective, and definite standard for the Maui Planning
Commission to consider.

Comparing this standard to those

examined in City of Moreno and G.K. Ltd., this court concludes

48

that subsection 15-15-95(c)(3) is much more like the provision in
G.K. Ltd., which found no First Amendment violation with respect
to a sign ordinance that regulated the type, size, and design of
signs--a limited and objective set of criteria going to “form,
proportion, scale, color, materials, surface treatment, overall
sign size and the size and style of lettering.”

436 F.3d at

1083.
In trying to frame its challenge as a facial one,
Plaintiffs seek to steer this court away from considering the
factual context of this case.

The record indicates that the

road leading to Plaintiffs’ property, Haumana Road, is so narrow
in many spots that two cars cannot pass each other unless one
pulls off the road.

If cars park on the side of the road,

emergency vehicles cannot get through.

The Maui Police

Department recommended that the road be widened if Plaintiffs
were going to be allowed to conduct religious activities,
including wedding ceremonies, at their property, given the
anticipated increase in traffic on the road.

With the road as

is, Plaintiffs appear to be in a position similar to that of Get
Outdoors II, whose proposed billboards exceeded the allowable
number, height, and size.

If Plaintiffs’ proposed use exceeds

the allowable use of the road, that may well place an
unreasonable burden on the County of Maui.

49

Subsection 15-15-95(c)(3)’s requirement that the Maui
Planning Commission examine whether an “unreasonable burden”
would be placed on agencies to provide “roads and streets,
sewers, water drainage and school improvements, and police and
fire protection” is a limit on the Maui Planning Commission’s
discretion.

In Thomas, the Supreme Court noted that the

permissive nature of an ordinance furthered, rather than
constricted, free speech.

Thomas, 534 U.S. at 325.

Subsection

15-15-95(c)(3)’s use of the word “unreasonably” similarly
furthers free speech.

Had subsection 15-15-95(c)(3) only

required the Maui Planning Commission to examine whether any
burden at all was placed on agencies providing “roads and
streets, sewers, water drainage and school improvements, and
police and fire protection,” the Maui Planning Commission could
have ruled on a Special Use Permit application based on even a
miniscule burden on those agencies.

This would have removed the

Maui Planning Commission’s discretion to grant an application.
As written, subsection 15-15-95(c)(3) allows the granting of a
permit when the burden on the items is not “unreasonable.”

This

standard provides the Maui Planning Commission with some, but not
unbridled, discretion to grant a permit, thus furthering free
speech.
Trewhella v. City of Lake Geneva, Wisconsin, 249 F.
Supp. 2d 1057 (E.D. Wis. 2003), is instructive on this point.

50

Trewhella examined a challenge to supposedly “unfettered power to
deny a permit” unless the permit granter found that “The parade
or public assembly is scheduled to move from its point of origin
to its point of termination expeditiously and without
unreasonable delays in route.”

Id. at 1076.

Trewhella argued

that “delays in route” gave the permit granters unbridled
discretion to grant or deny a permit.

Id.

The district court

disagreed, ruling that “delays in route” was modified by the word
“unreasonable,” which limited the permit granter’s discretion.
As in Trewhella, the use of “unreasonable” in subsection
15-15-95(c)(3) places a limit on the Maui Planning Commission’s
exercise of discretion.
Section 15-15-95(c)(3)’s “unreasonable burden” language
is distinguishable from the “without unreasonable delay” language
invalidated in United States v. Frandsen, 212 F.3d 1231, 1240
(11th Cir. 2000).

In Frandsen, a superintendent was required to

issue a permit “without unreasonable delay.”

Id.

The Eleventh

Circuit stated that “without unreasonable delay” did not put a
real time limit on the decision maker, noting:
A park superintendent could receive a permit
request well in advance of a planned
political demonstration and then fail to act
on the permit request until after the date of
the demonstration, deciding on his own that
he was acting “without unreasonable delay.”
A park superintendent who does not agree with
the political message to be espoused could
allow the permit request to sit on his desk
51

for an indefinite period of time--resulting
in speech being silenced by inaction.
Id.

Subsection 15-15-95(c)(3)’s “unreasonable burden” language

does not allow the same potential abuse by the Maui Planning
Commission.

The language is more akin to that in Trewhella in

that it actually places a limit on the Planning Commission’s
exercise of discretion and furthers free speech by allowing the
issuance of a Special Use Permit when it would not “unreasonably”
burden certain objective items.
At the hearing on the motions, Plaintiffs argued that
the Maui Planning Commission did not actually find an
“unreasonable burden” in this case.
number of reasons.

This argument fails for a

To the extent Plaintiffs bring a facial

challenge to the provision, this court does not examine whether
the ordinance, as applied, passes constitutional muster.

More

importantly, to the extent Plaintiffs argue that the Maui
Planning Commission’s ruling did not satisfy the requirements of
the provision, that argument should have been made to the Hawaii
Circuit Court in Plaintiffs’ agency appeal.

In determining that

the Maui Planning Commission properly denied the requested
Special Use Permit, the Hawaii Circuit Court necessarily decided
that the regulatory requirements for denying the permit had been
satisfied.

This court does not sit in review of a state court

determination that there was sufficient evidence in the record
before the Maui Planning Commission supporting its determination
52

with respect to the “unreasonable burden” on agencies providing
“roads and streets, sewers, water drainage and school
improvements, and police and fire protection.”

Plaintiffs may

not relitigate here the matter of whether there were sufficient
facts to support “unreasonable burden” requirement of subsection
15-15-95(c)(3).

See Allen, 449 U.S. at 94 (res judicata doctrine

precludes parties or their privies from relitigating claims that
were or could have been raised in an earlier action in which
there is a final judgment on the merits).
6.

If a Permit Denial Under Subsection 15-1595(c)(3) is Not an Unconstitutional Prior
Restraint, Plaintiffs Were Not
Constitutionally Entitled to a Permit Even if
Subsection 15-15-95(c)(2) is Defective.

Plaintiffs also contend that subsection 15-15-95(c)(2)
is facially invalid.

That provision includes a guideline for

granting a Special Use Permit going to whether the proposed use
would not adversely affect surrounding property.

Assuming that

Plaintiffs may bring a facial challenge to this guideline
notwithstanding its express focus on guidelines for the granting
of a Special Use Permit, this court recognizes that this
subsection presents a closer call than subsection 15-15-95(c)(3)
as to whether the challenged language vests the Maui Planning
Commission with unbridled discretion.

But even if subsection

15-15-95(c)(2) does run afoul of the First Amendment (something
this court is expressly not ruling on), that would not give
53

Plaintiffs an entitlement to receive the requested permit because
subsection 15-15-95(c)(3) would still present an impediment to
such a grant.

Get Outdoors II is instructive here.

Get Outdoors II noted that “an unfavorable decision on
the merits of one claim may well defeat standing on another claim
if it defeats the plaintiff’s ability to seek redress.”
at 893.

506 F.3d

In this case, assuming the Special Use Permit

application could have been denied based on any one of the
guidelines in section 15-15-95(c), a judicial invalidation of
subsection 15-15-95(c)(2) would not address the constitutionality
of any other subsection.

Given that circumstance, this court

sees no need to address the constitutionality of subsection
15-15-95(c)(2).
This court has carefully examined the decision of the
Maui Planning Commission and the appeal of its decision.
Maui Planning Commission’s Conclusions of Law state:
The Commission found that granting the uses
would increase traffic and burden public
agencies providing roads and streets, police,
and fire protection, in conflict with 15-1595(3), HAR, and gave the following reasons
for a denial of the Application on that
basis: significant concerns about the
narrowness of Haumana Road and vehicle and
pedestrian safety both of potential visitors
to the Property and property owners along
Haumana Road and the fact that the Property
is at the terminus of Haumana Road and
therefore traffic to the Property would
negatively impact resident’s safety and use
of Haumana Road.

54

The

ECF No. 185-9, PageID # 3290 (emphasis added).
In concluding that the proposed uses would adversely
affect surrounding properties in conflict with subsection 15-1595(c)(2), the Commission appears to have been focused on how the
proposed uses would increase traffic and pose a safety hazard
without road mitigation.

These concerns caused the Commission to

determine that the proposed uses would burden public agencies
providing roads and streets, police, and fire protection in
conflict with subsection 15-15-95(c)(3).
PageID # 3290.

See ECF No. 185-9,

The Commission concluded that the proposed uses

“did not constitute an ‘unusual and reasonable’ use in the
Agricultural district.”

Id.

It is not at all clear that the

Commission’s reliance on subsection 15-15-95(c)(2) was anything
more than a reiteration of its concerns under subsection 15-1595(c)(3).

That is, this court cannot conclude from the record

that subsection 15-15-95(c)(2) was a necessary component of the
denial such that, without subsection 15-15-95(c)(2), the
Commission would have granted the permit.
In any event, as Get Outdoors II notes, to comport with
the required “constitutional standing” principles, Plaintiffs
must have had a possibility of getting a permit for the asking.
See 506 F.3d at 895.

If Plaintiffs could be denied a permit

under subsection 15-15-95(c)(3), the court questions their
standing to challenge subsection 15-15-95(c)(2), as any ruling

55

favorable to them on subsection 15-15-95(c)(2) would not redress
any injury they suffered.

See Get Outdoors II, 506 F.3d at 895

(discussing the need for a plaintiff to have been eligible to get
a permit “for the asking” to challenge an allegedly
unconstitutional provision).
In Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502
(1985), the Supreme Court noted that “a federal court should not
extend its invalidation of a statute [or ordinance] further than
necessary to dispose of the case before it.”

Brockett, examining

whether partial invalidation of a statute was appropriate, noted
that a “statute may forthwith be declared invalid to the extent
that it reaches too far, but otherwise left intact.”
504.

472 U.S. at

This court is performing the corollary task of determining

whether provisions are valid.

The parties have not explained

why, if even one of the provisions relied on by the Commission is
valid, this court must analyze whether other provisions are
unconstitutional even if invalidation of those other provisions
would not entitle Plaintiffs to the requested permit.

That is,

absent evidence that the Commission deemed subsection 15-1595(c)(2) as necessary to its denial (as opposed to, for example,
just an additional ground for reiterating concerns raised under
subsection 15-15-95(c)(3)), this court does not rule on the
purported facial challenge to subsection 15-15-95(c)(2).

56

C.

Plaintiffs Do Not Oppose the State of Hawaii’s
Motion to the Extent it Argues that the Remaining
Claims are Factual, Rather than Facial,
Challenges.

The State of Hawaii seeks summary judgment with respect
to whether the remaining counts assert factual challenges for
which the State of Hawaii need not participate in this lawsuit.
Plaintiffs do not oppose this part of the motion.

Accordingly,

the court rules that the remaining counts assert only factual
challenges.

Whether the State of Hawaii participates further

involves the scope of its intervention.

The State may refrain

from participating if it so chooses.
V.

CONCLUSION.
For the reasons set forth above, the court grants the

State of Hawaii’s motion for summary judgment and the County of
Maui’s joinder therein and denies Plaintiffs’ counter motion for
summary judgment.

That is, the court grants summary judgment in

favor of Defendants with respect to the prior restraint claim
asserted in Count V.

With respect to the remaining counts, only

factual challenges remain.

The State of Hawaii is, of course,

57

free to limit its intervention to defending against facial
challenges only.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 23, 2019.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Spirit of Aloha Temple, et al. v. County of Maui, Civ. No. 14-00535 SOM/RLP;
ORDER GRANTING DEFENDANT STATE OF HAWAII'S MOTION FOR SUMMARY JUDGMENT WITH
RESPECT TO COUNT V AND DEFENDANT COUNTY OF MAUI'S JOINDER THEREIN, RULING THAT
ONLY "AS APPLIED" CHALLENGES ARE ASSERTED WITH RESPECT TO REMAINING CLAIMS,
AND DENYING COUNTER MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO COUNT V

58