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

Filing 279

DUPLICATE ENTRY of docket entry 277 AMENDED ORDER Granting In Part and Denying in Part Defendant Count of Maui's Motion For Summary Judgment re 277 218 . Signed by JUDGE SUSAN OKI MOLLWAY on 7/22/2019. (cib) Modified on 7/23/2019 (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,
____________________________
__

)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 14-00535 SOM/RLP
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
COUNTY OF MAUI’S MOTION FOR
SUMMARY JUDGMENT

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT COUNTY OF MAUI’S MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiffs Spirit of Aloha Temple and Frederick R.

Honig want to conduct what they say are church activities on
land that is zoned for agricultural use on Maui.

They applied

to the Maui Planning Commission for a Special Use Permit that
would have allowed those activities on their land.

Among

other things, Plaintiffs argued to the Maui Planning
Commission that denying their application would violate a
section of the Religious Land Use and Institutional Persons
Act (“RLUIPA”).

The Planning Commission rejected that RLUIPA

argument, denying the application and stating that the County
of Maui had a compelling governmental interest in protecting
the health, lives, and safety of the public and that, given
the nature of the narrow road leading to Plaintiffs’ property,

denial of the permit application was the least restrictive
means of furthering that interest.
Plaintiffs appealed the application denial to the
state trial court.

However, they deliberately stated in

connection with their appeal to the state court that they were
reserving for federal court the adjudication of any federal
claims.

Plaintiffs did challenge in their appeal the Planning

Commission’s finding that the permit denial was the least
restrictive means of furthering the compelling governmental
interest of road safety.

That finding was made in connection

with the Commission’s rejection of Plaintiffs’ RLUIPA
argument.

The state court affirmed without mentioning RLUIPA.
Plaintiffs now seek to proceed in this court with a

claim under the same RLUIPA section (Count I) that it had told
the Planning Commission would be violated if the permit
application were denied.

Plaintiffs also bring claims under

other RLUIPA sections not cited before the Planning Commission
or the state court, and under other federal and state laws.
The County of Maui moves for summary judgment on all
remaining claims, arguing that the claims are precluded by the
state court ruling that affirmed the Planning Commission’s
decision.

The only count to which res judicata could even

arguably apply is Count I.

This court concludes that res

2

judicata is inapplicable to Count I, but that the collateral
estoppel doctrine bars Count I.

While the different RLUIPA

claim in Count II is not subject to res judicata, it too is
barred by collateral estoppel.

All other claims except the

RLUIPA claim in Count IV are also barred by collateral
estoppel.
II.

BACKGROUND.
The factual background for this case was set forth

in this court’s previous orders.

See 2019 WL 2146237 (D. Haw.

May 16, 2019); 2019 WL 1781061 (D. Haw. Apr. 23, 2019); 322 F.
Supp. 3d 1051 (D. Haw. 2018).

That background is incorporated

by reference and is supplemented below.
On November 21, 2012, Spirit of Aloha Temple,
through Fredrick Honig, submitted a second Special Use Permit
application to use property located on agricultural land for
church activities.

ECF No. 183-6, PageID #2803.

The denial

of the first Special Use Permit application is not at issue on
the motion now before the court.

While the Planning

Commission originally denied the second application, it
rescinded that denial on April 8, 2014.

See ECF No. 219-3,

PageID # 4795.
The Planning Commission then conducted a hearing
with respect to the Special Use Permit application.
3

Although

Plaintiffs now dispute whether the proceeding before the
Planning Commission was a contested case hearing, in their
February 2016 Notice of Appeal of Maui Planning Commissions
Findings of Fact and Conclusions of Law, which is discussed
later in this order, Plaintiffs, represented by counsel,
expressly stated that they were appealing the Planning
Commission’s decision pursuant to section 91-14 of Hawaii
Revised Statutes.

See ECF No. 215-5, PageID #s 4303, 4306.

Section 91-14 governs “Judicial review of contested case
hearings.”
Plaintiffs had argued to the Planning Commission
that a section of RLUIPA required their permit application to
be granted unless the Planning Commission’s denial of the
permit was the least restrictive means of furthering a
compelling government interest.

The transcript of the April

2014 hearing makes it clear that numerous individuals told the
Planning Commission that RLUIPA would be violated if
Plaintiffs were not given the requested Special Use Permit.
Lani Star, an advisory board member for “Honig’s
organization,” told the Commission that RLUIPA required the
County of Maui to have a compelling interest and to apply the
least restrictive means possible to further such an interest.
See ECF No. 233-2, PageID #s 4982-83.
4

Aerie Waters, part of

the Spirit of Aloha Temple, reminded the Commission that
Spirit of Aloha had rights under RLUIPA, “as shown in the
letter give[n] to you on March 25, 2014, by our attorney
Andrea Low of Bervar & Jones.”

Id., PageID # 4983.

While the

letter was dated January 14, 2010, it appears to have been
received by the Department of Planning in December 2012.

The

letter stated that Plaintiffs had RLUIPA rights requiring the
government to show a compelling interest before denying the
requested permit.

See ECF No. 219-3, PageID #s 4734-35.

Sean Clancy, who appears to have been associated
with Plaintiffs, told the Commission, “Unsubstantiated doubts
of safety and concerns who have self interest concerning their
property’s encroachment on Haumana Road easements do not
comprise a valid reason to totally deny the rights of RLUIPA.
We have experienced extreme hardship and restrictions in the
exercise of our religious rights in the past five years in
which time we have been struggling with the Planning
Department to secure the RLUIPA rights and our Special Use
Permit.”

See ECF No. 233-2, PageID # 4985.

Chaz Paul, a

member of Spirit of Aloha Temple, told the Commission that
Spirit of Aloha was not being afforded due process with
respect to the permit hearing that implicated RLUIPA rights.
Id., PageID # 4988.

Richelle Thompson, Deputy Corporation
5

Counsel for the County of Maui, explained to the Commission
that, in addition to determining whether the Special Use
Permit should be granted under Hawaii law, the Commission had
to consider whether any decision with respect to the requested
permit violated RLUIPA.

See id., PageID #s 4974-75.

Additionally, Honig argued to Patricia Kitkowski of
the State Department of Health’s Environmental Health
Sanitation section for Maui County, “We claim RLUIPA rights
and government because of these Federal Church protection laws
is required to offer the LEAST RESTRICTIVE Options to satisfy
the Government’s Compelling Interests.”

See ECF No. 183-13,

PageID #s 2978, 3001.
The Maui Planning Commission denied the 2012 Special
Use Permit application.

Finding of Fact # 68 stated:

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
6

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 (Finding of Fact # 68).
The Maui Planning Commission noted that section 2056 of Hawaii Revised Statutes allows certain “unusual and
reasonable uses” within agricultural and rural districts, in
addition to uses for which the property is classified.
PageID # 3289.

Id.,

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.
The five “guidelines” in section 15-15-95(c) for
determining whether a proposed used “may be permitted” even if
not within what is allowed for the district’s classification
are:
(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;
7

(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.
Id. http://luc.hawaii.gov/wp-content/uploads/2012/09/LUC-Admin
-Rules_Chapter15-15_2013.pdf) (Nov. 2, 2013)
The Commission concluded that subsections 15-1595(c)(2) and (3) were not satisfied by Plaintiffs.1

With

respect to subsection 15-15-95(c)(2), the Commission concluded
that the uses proposed by Plaintiffs “would adversely affect
the surrounding properties” given concerns about the safety of
1

The Commission did not specifically discuss subsection
15-15-95(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.
The Commission 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 15-1595(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.
8

Haumana Road.

Id., PageID # 3290.

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 and 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 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.

With respect to Plaintiffs’ RLUIPA argument, the
Maui Planning Commission said:
9. The Religious Land Use and
Institutional Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc(a)(1), requires that a
state or local government may not impose or
implement a land use regulation in a manner
that imposes a substantial burden on the
religious exercise of a person, including a
religious assembly or institution unless
the government demonstrates that the burden
is in furtherance of a compelling
governmental interest and is the “least
restrictive means” of furthering that
interest. The Commission found that the
county has a compelling interest in
protecting the health, lives, and safety of
the public. The Commission further found
that Haumana Road did not meet the standard
requirements regarding width of
agricultural or rural roads, and
9

additionally that it was one lane in
sections and winding, which impaired sight
distance and accessability. The Commission
further found that there were compelling
public health and safety issues implicated
by the likely significant increase in
traffic attributable to the uses proposed
by the Application, creating conditions
that would be foreseeably dangerous or
potentially deadly to drivers and
pedestrians, including children walking on
the road to and from the bus stop at the
top, using the small rural roadway. The
Commission found that inclement weather
would increase the likelihood of accidents
and human injuries or death. The
Commission found that these compelling
public health and safety issues could not
be adequately addressed by the
implementation of any permit condition or
use restriction.
ECF No. 185-9, PageID # 3291.
As a precaution, the Maui Planning Commission noted
in its decision, “If any Conclusion of Law is later deemed to
be a Finding of Fact, is shall be so deemed.”

Conclusion of

Law #10, ECF No. 185-9, PageID # 3291.
On November 26, 2014, rather than appealing the Maui
Planning Commission’s decision to the state trial court,
Plaintiffs filed a Complaint in this court.

See ECF No. 1.

Count X sought to appeal the Maui Planning Commission’s denial
of the 2012 Special Use Permit application, contending that
this court had supplemental jurisdiction to entertain the
appeal.

See Complaint, ECF No. 1, PageID #s 40-44.
10

In

particular, Count X challenged Findings of Fact # 68 and parts
of Conclusion of Law # 9, quoted earlier in the present order.
Id.

With respect to Conclusion of Law # 9, Plaintiffs alleged

in Count X that the following was not supported by probative,
reliable, and substantial evidence: “The Commission further
found that there were compelling public health and safety
issues implicated by the likely significant increase in
traffic attributable to the uses proposed by the Application,
creating conditions that would be foreseeably dangerous or
potentially deadly to drivers and pedestrians, including
children walking on the road to and from the bus stop at the
top, using the small rural roadway.”

Id., PageID # 43.

Plaintiffs also alleged that the Commission had erred in
concluding that there was a compelling interest at stake and
that less restrictive means were not available.

Id., PageID

# 44.
On January 27, 2016, this court declined to exercise
supplemental jurisdiction over the agency appeal claim
asserted in Count X, which asked this court to review the Maui
Planning Commission’s decision under section 91-14 of Hawaii
Revised Statutes, pertaining to appeals from contested case
hearings.

Count X bore the heading “H.R.S. § 91-14,” a

reference to state law regarding an appeal from an agency’s
11

contested case ruling.

Count X additionally had the heading

“Appeal from Agency Action.”

ECF No. 1, PageID # 40.

Treating Count X as a wholly state-law claim, this court
announced that it was exercising its discretion to refrain
from asserting supplemental jurisdiction over Count X.

The

court dismissed “Count X without prejudice to Plaintiffs’
pursuing of that claim in state court.”
PageID # 1279.

See ECF No. 109,

The court then stayed the remaining claims

under Pullman abstention.

Id. (“The court stays the present

case pending the state circuit court’s determination of the
matters raised in Count X.”).
On February 22, 2016, Plaintiffs filed an agency
appeal of the Maui Planning Commission’s contested case denial
of the permit to the Circuit Court of the Second Circuit,
State of Hawaii.

See Notice of Appeal to the Circuit Court,

Civ. No. 16-1-0103(1), ECF No. 215-5, PageID # 4303 (appealing
the denial pursuant to section 91-14 of Hawaii Revised
Statutes, which pertains to “Judicial review of contested
cases”).

The appeal challenged Finding of Fact # 68,

specifically alleging error in the finding that the denial of
the permit represented the least restrictive means of
furthering the compelling governmental interest of road
safety.

See id., PageID #s 4319-20.
12

The appeal also

challenged Conclusion of Law # 9 to the extent it stated that
“the likely significant increase in traffic attributable to
the uses proposed by the Application [would create] conditions
that would be foreseeably dangerous or potentially deadly to
drivers and pedestrians, including children walking on the
road to and from the bus stop at the top, using the small
rural roadway.”

Id., PageID # 4321.

In their state-court appeal, Plaintiffs did not
challenge the portion of Conclusion of Law # 9 stating that
RLUIPA had not been violated because the government had stated
a compelling interest and because the permit denial was the
least restrictive means of furthering that interest.

Instead,

Plaintiffs told the state court:
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.
Plaintiffs also announced two other times that,
while pursuing the administrative appeal in state court, they
were reserving their right to have their federal claims
13

adjudicated in federal court.

For example, in their Opening

Brief filed in state court on April 25, 2016, Plaintiffs
reiterated that reservation.

ECF No. 215-6, PageID # 4387.

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.

Additionally, 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 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

14

Commission’s decision.

See ECF No. 183-14.

The state court

reviewed the Planning Commission’s decision under section 9114 (governing contested case appeals), ruling that there was
no “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.

The 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 say:
[T]raffic 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 significant evidence of the
15

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

No review was sought in a higher

state court, and the state-court ruling on the appeal from the
Maui Planning Commission’s ruling is now a final decision on
the merits.
This court previously granted summary judgment in
favor of both the State of Hawaii and the County of Maui with
respect to Count V.

Given that ruling, the parties have

stipulated to the dismissal of the State of Hawaii from this
case.

Counts I, II, IV, VI, VII, VIII, and IX remain pending

against the County of Maui.
III.

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.
The County of Maui’s motion seeks a determination

that Plaintiffs’ remaining claims are precluded by the state
circuit court’s order and final judgment affirming the Maui
Planning Commissions’ Findings of Fact and Conclusions of Law
that ultimately denied Plaintiffs’ requested Special Use

16

Permit.

The County of Maui argues that preclusive effect

should be given to the Planning Commission’s determination
because the state circuit court affirmed the Planning
Commission’s factual findings and conclusions of law and
because Plaintiffs failed to challenge the Planning
Commission’s RLUIPA determination, which Plaintiffs had
actively litigated before the Planning Commission.
No. 218-1, PageID #s 4681-88.

See ECF

This court therefore examines

the preclusive effect of both the Planning Commission’s
decision and the state circuit court’s upholding of that
decision.

Because the parties had not adequately briefed the

preclusive effect of the Planning Commission’s decision, the
court asked the parties to come to the hearing on this motion
prepared to discuss that issue and then provided the parties
with an opportunity to file post-hearing briefs on the matter.
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).

Generally speaking, claim preclusion, or res judicata,
prohibits a party from relitigating a previously adjudicated
cause of action, as well as all grounds of a claim that might
have been but were not litigated or decided.
17

Issue preclusion, or collateral estoppel, on the
other hand, applies to a subsequent suit between the parties
or their privies on a different cause of action and prevents
the parties or their privies from relitigating any issue that
was actually litigated and finally decided in the earlier
action.

See E. Sav. Bank, FSB v. Esteban, 129 Haw. 154, 158,

296 P.3d 1062, 1066 (2013) (“Claim preclusion prohibits the
parties or their privies from relitigating a previously
adjudicated cause of action; issue preclusion, by contrast,
prevents the parties or their privies from relitigating any
issue that was actually litigated and finally decided in the
earlier action.”); Dorrance v. Lee, 90 Haw. 143, 148, 976 P.2d
904, 909 (Haw. 1999); Kauhane v. Acutron Co., 71 Haw. 458,
463, 795 P.2d 276, 278 (1990).
Res judicata and collateral estoppel “are doctrines
that limit a litigant to one opportunity to litigate aspects
of the case to prevent inconsistent results and multiplicity
of suits and to promote finality and judicial economy.”
Bremer v. Weeks, 104 Haw. 43, 53, 85 P.3d 150, 160 (2004).
The preclusive effect in this court of a Hawaii
decision is determined by Hawaii law.

Pike v. Hester, 891

F.3d 1131, 1138 (9th Cir. 2018) (“A federal court applying
issue preclusion must give state court judgments the
18

preclusive effect that those judgments would enjoy under the
law of the state in which the judgment was rendered.”
(quotation marks and citation omitted)); ReadyLink Healthcare,
Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 760 (9th Cir.
2014) (“We determine the preclusive effect of a state court
judgment by applying that state’s preclusion principles.”);
Zamarripa v. City of Mesa, 125 F.3d 792, 793 (9th Cir. 1997)
(“Federal courts must apply the collateral estoppel rules of
the state that rendered the underlying judgment.”); Pedrina v.
Chun, 97 F.3d 1296, 1301 (9th Cir. 1996) (“In determining
whether a prior state court action bars a subsequent federal
action, the federal court must look to the res judicata
principles of the state court in which the judgment was
rendered”).
Under Hawaii law, the doctrine of res judicata
applies when: 1) the claim or cause of action asserted in the
present action was or could have been asserted in the prior
action, 2) the parties in the present action are identical to,
or in privity with, the parties in the prior action, and 3) a
final judgment on the merits was rendered in the prior action.
Dannenberg v. State, 139 Haw. 39, 59, 383 P.3d 1177, 1197
(2016); Accord Pedrina, 97 F.3d at 1301.

“Res judicata

prohibits the relitigation of all grounds and defenses which
19

might have been properly litigated in the prior action, even
if the issues were not litigated or decided in the earlier
adjudication of the subject claim or cause of action.”
Dannenberg, 139 Haw. at 59, 383 P.3d at 1197.
Under Hawaii law, the doctrine of collateral
estoppel bars relitigation of an issue when: (1) the issue
decided in the prior adjudication is identical to the one
presented in the action in question; (2) there is a final
judgment on the merits; (3) the fact or issue decided in the
prior adjudication was actually litigated, finally decided,
and essential to the final judgment; and (4) the party against
whom collateral estoppel is asserted was a party or in privity
with a party to the prior adjudication.

Dannenberg, 139 Haw.

39, 60, 383 P.3d 1177, 1198 (2016); Dorrance, 90 Haw. at 149,
976 P.2d at 910.
The Hawaii Supreme Court has held that the
“doctrines of res judicata and collateral estoppel also apply
to matters litigated before an administrative agency.”

Santos

v. State, Dep't of Transp., Kauai Div., 64 Haw. 648, 653, 646
P.2d 962, 966 (1982).

In Wehrli v. Cty. of Orange, 175 F.3d

692, 694 (9th Cir. 1999), the Ninth Circuit noted that,
“[t]here is no doubt that, as a general matter, a state
administrative decision can have preclusive effect.”
20

The

Ninth Circuit recognized that preclusive doctrines apply to an
administrative body’s legal as well as factual rulings.

Id.

In University of Tennessee v. Elliot, the Supreme
Court ruled that, “when a state agency acting in a judicial
capacity resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to
litigate, federal courts must give the agency’s factfinding
the same preclusive effect to which it would be entitled in
the State’s courts.”

478 U.S. 788, 799 (1986) (alterations,

quotation marks, and citation omitted).

This court thus

applies res judicata and collateral estoppel principles to
matters litigated before administrative agencies when (1) the
administrative agency acts in a judicial capacity, (2) the
agency resolves disputed issues of fact properly before it,
and (3) the parties have an adequate opportunity to litigate.
Id.; United States v. Utah Constr. & Mining Co., 384 U.S. 394,
422 (1966) (“When an administrative agency is acting in a
judicial capacity and resolved disputed issues of fact
properly before it which the parties have had an adequate
opportunity to litigate, the courts have not hesitated to
apply res judicata to enforce repose.”).

This is the standard

approved of by the Hawaii Supreme Court in SCI Mgmt. Corp. v.
Sims, 101 Haw. 438, 456 n.3, 71 P.3d 389, 407 n.3 (2003).
21

With these general principles in mind, the court
turns to each remaining claim.
A.

Summary Judgment is Granted on Collateral
Estoppel Grounds in Favor of the County of Maui
With Respect to Count I (RLUIPA, 42 U.S.C.
§ 2000cc(a)(1)).

Plaintiffs assert several RLUIPA claims, each under
a separate subsection of RLUIPA.

Count I of the Complaint

asserts that the County of Maui violated 42 U.S.C. §
2000cc(a)(1) of RLUIPA when the Maui Planning Commission
denied Plaintiffs’ requested Special Use Permit “in a manner
that place[d] a substantial burden on the Plaintiffs’
religious exercise without using the least restrictive means
of achieving a compelling government interest.”
PageID #s 35-36.

ECF No. 1,

The Ninth Circuit has explained that

RLUIPA provides that a government land-use
regulation “that imposes a substantial
burden on the religious exercise of a . . .
religious assembly or institution” is
unlawful “unless the government
demonstrates that imposition of the burden
. . . is in furtherance of a compelling
governmental interest; and is the least
restrictive means of furthering that
compelling governmental interest.” 42
U.S.C. § 2000cc(a)(1). Thus, RLUIPA
analysis proceeds in two sequential steps.
First, the plaintiff must demonstrate that
a government action has imposed a
substantial burden on the plaintiff’s
religious exercise. Second, once the
plaintiff has shown a substantial burden,
the government must show that its action
22

was “the least restrictive means” of
“further[ing] a compelling governmental
interest.” Id.
Int'l Church of Foursquare Gospel v. City of San Leandro, 673
F.3d 1059, 1066 (9th Cir. 2011).
The RLUIPA provision in issue in Count I was
addressed by the Planning Commission.

Having failed to

persuade the Planning Commission that RLUIPA would be violated
by a denial of their permit application, Plaintiffs opted not
to repeat their RLUIPA argument when they appealed the
Planning Commission’s decision to the state court.

Plaintiffs

did not thereby trigger res judicata, but they are
collaterally estopped from proceeding with Count I.

In short,

Plaintiffs cannot prevail on Count I.
1.

The Planning Commission’s RLUIPA
Determination Does Not Have Res Judicata
Effect as to Count 1.

In denying the previous summary judgment motion,
this court noted that, under England v Louisiana State Board
of Medical Examiners, 375 U.S. 411 (1964), “a litigant who has
properly invoked the jurisdiction of a Federal District Court
to consider 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 provides that a litigant
23

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.
at 419.

Id.

In an earlier order, this court said that Plaintiffs

had properly exercised an England reservation with respect to
their federal claims.

It was unnecessary in that order for

the court to go beyond whether Count V could proceed.

In any

event, this court now addresses anew whether Count I may
proceed in this court.
In State v. Higa, 79 Haw. 1, 8, 897 P.2d 928, 935
(1995), the Hawaii Supreme Court discussed the res judicata
effects of an administrative revocation of a driver’s license
for driving under the influence of an intoxicating liquor.
Higa noted that the res judicata doctrine applies to matters
litigated before an administrative agency, and that courts
apply res judicata “when three conditions are present: (1) the
issue in the prior adjudication is identical to the present
one; (2) there was a final judgment on the merits; and (3) the
party against whom the doctrine is asserted was a party, or
was in privity with a party, in the prior adjudication.”

24

Id.

Res judicata is inapplicable to Count I because the
issue before the agency was not identical to the issue before
this court.

Plaintiffs argued to the Maui Planning Commission

that denying the requested permit would violate RLUIPA.

But

the issue before this court is whether the Maui Planning
Commission’s decision substantially burdens Plaintiffs’
religion in violation of RLUIPA.

Because these are not

identical issues, res judicata does not bar Count I.
Moreover, what the Planning Commission had before it
was only Plaintiffs’ argument, advanced in support of its
permit application, that RLUIPA would be violated if their
permit application was denied.

The argument sought to prevent

what Plaintiffs viewed as a RLUIPA violation.

By contrast,

Count I asserts that RLUIPA has indeed been violated by the
Planning Commission’s denial of their permit application.
This is a claim, not simply an argument of law.
In determining whether two proceedings involved the
same matter for res judicata purposes, the distinction between
a claim and an argument may sometimes be faint.

But here, as

Plaintiffs argued at the hearing on the present motion, the
RLUIPA claim contained in Count I could not have been
adjudicated by the Planning Commission because Plaintiffs had
no RLUIPA violation to allege until the Planning Commission

25

had concluded its proceedings and denied their permit
application.
2.

The Collateral Estoppel Doctrine Bars
Count I.

Even though res judicata is inapplicable to Count I,
Plaintiffs cannot prevail on Count I given the collateral
estoppel doctrine.
As this court has previously recognized, even if an
England reservation is required and is properly exercised,
that does not preclude the application of collateral estoppel:

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.” San Remo Hotel, L.P. v. San
Francisco City & Cty., 364 F.3d 1088, 1095
(9th Cir. 2004) (quotation marks and
citation omitted).
2019 WL 1781061, at *7.

This court has before it a state

court’s decision addressing factual issues critical to Count
I.

That decision did not review all of the Planning

Commission’s findings and conclusions relating to RLUIPA, but
26

this court gives collateral estoppel effect to the Planning
Commission’s determination of those other matters pertinent to
the RLUIPA substantial burden claim asserted in Count I.
“[W]hen a state agency acting in a judicial capacity
resolves disputed issues of fact properly before it which the
parties have had an adequate opportunity to litigate, federal
courts must give the agency’s factfinding the same preclusive
effect to which it would be entitled in the State’s courts.”
Univ. of Tenn., 478 U.S. at 799.

The Hawaii Supreme Court has

adopted the standard set forth in United States Supreme Court
precedent.

To determine the collateral estoppel effect of the

Planning Commission’s decision, as affirmed by the state
court, this court examines whether (1) the administrative
agency acted in a judicial capacity, (2) the agency resolved
disputed issues of fact properly before it, and (3) the
parties had an adequate opportunity to litigate.

Id.; Utah

Constr., 384 U.S. at 422; SCI Mgmt. Corp., 101 Haw. at 456
n.3, 71 P.3d at 407 n.3.
The Planning Commission’s rulings satisfy each
collateral estoppel requirement.

The Planning Commission

ruled that the County of Maui had a compelling governmental
interest in safety and that the permit denial was the least
restrictive means of furthering that interest.
27

The Planning

Commission’s ruling as to the existence of a compelling
governmental interest is fully consistent with law.

See

Bischoff v. Fla., 242 F. Supp. 2d 1226, 1237 (M.D. Fla. 2003)
(“The purpose behind the contested statutes is to ensure
public safety on roads, which is a compelling government
interest.”); Cole v. Roadway Express, Inc., 218 F. Supp. 2d
350, 356 (W.D.N.Y. 2002) (“the public has a compelling
interest in maintaining safe roadways”); see also McCloskey v.
Honolulu Police Dep't, 71 Haw. 568, 576, 799 P.2d 953, 958
(1990) (stating that protecting public safety is a compelling
interest).
This court notes that both legal and factual rulings
by the Planning Commission have preclusive effect.
Wehrli, 175 F.3d at 694.

See

Even if only factual findings had

preclusive effect and this court were required to make its own
legal determination as to whether the County of Maui has a
compelling governmental interest in protecting the public,
this court has no hesitation in recognizing such an interest
as compelling.

See Garner v. Kennedy, 713 F.3d 237, 242 (5th

Cir. 2013) (noting that “courts have generally held that
whether the imposition of a burden is the least restrictive
means of furthering a compelling government interest is a
question of law,” but stating in a RLUIPA substantial burden
28

case that “whether the imposition of a burden is the least
restrictive means of furthering a compelling government
interest is best characterized as a mixed question of fact and
law” because it is “highly dependent of a number of factual
issues”).
The Commission’s factual finding that the denial of
the permit was the least restrictive means of furthering the
governmental interest, as affirmed by the state court, has
collateral estoppel effect here and bars Count I.
a.

The Planning Commission Acted in a
Judicial Capacity.

Plaintiffs assert that the collateral estoppel
doctrine is inapplicable because the Planning Commission did
not act in a judicial capacity in denying their Special Use
Permit application.
applicable case law.

That assertion is inconsistent with the
The Planning Commission conducted a

contested case proceeding, which required the Commission to
act in a judicial capacity.
Hawaii’s Intermediate Court of Appeals has stated
that “a contested case is one in which the agency performs an
adjudicative as compared to an administrative function.”
Hawaii Gov't Employees' Ass'n, AFSCME Local 152 v. Pub. Emps.
Comp. Appeals Bd. of State of Haw., 10 Haw. App. 99, 107, 861

29

P.2d 747, 752 (Ct. App. 1993).

Section 91-1(5) of Hawaii

Revised States defines a “contested case” as “a proceeding in
which the legal rights, duties, or privileges of specific
parties are required by law to be determined after an
opportunity for agency hearing.”
In Bush v. Hawaiian Homes Commission, 76 Haw. 128,
134, 870 P.2d 1272, 1278 (1994), the Hawaii Supreme Court
ruled that a hearing by an agency that is “required by law”
amounts to a “contested case” for which a direct appeal to the
state circuit court is possible under section 91-14 of Hawaii
Revised Statutes.

That statute provides for appellate review

of contested cases before administrative agencies.
Plaintiffs sought a Special Use Permit under section
205-6 of Hawaii Revised Statutes.

Because a hearing was

required by section 205-6(b) with respect to that permit
application, the Planning Commission was required to conduct a
“contested case” hearing.

In so doing, it had to act in a

judicial capacity.
In Bush, the Hawaii Supreme Court said that, “if a
contested case hearing has not been held, judicial review in
the circuit court cannot be obtained because the court does
not have jurisdiction pursuant to HRS § 91–14(a).”
137, 870 P.2d at 1281.

76 Haw. at

While the Hawaii Supreme court noted
30

the possibility of appellate review of administrative
decisions outside of section 91-14, it specifically held that
section 91-14 only provides appellate jurisdiction when
contested cases have been conducted.

Id.

When they appealed the Planning Commission’s
decision to the Circuit Court of the Second Circuit, State of
Hawaii, Plaintiffs asserted that the state court had
jurisdiction under section 91-14 of Hawaii Revised Statutes.
See ECF No. 215-5, PageID #s 4303 and 4306.

In affirming the

Planning Commission, the state court noted that the appeal had
been brought under section 91-14 and applied its standards in
affirming the Planning Commission.

See ECF No. 183-14, PageID

# 3005.
Having relied on the statute applicable to appeals
from contested cases, Plaintiffs can hardly argue that the
Planning Commission failed to conduct a contested case hearing
in which it acted in a judicial capacity.

The parties and the

state court proceeded presuming that the Planning Commission
had acted in a judicial capacity and had ruled in a contested
case.

31

b.

The Planning Commission Resolved
Disputed Issues of Fact Properly
Before It.

The Planning Commission resolved disputed issues of
fact that were properly before it.

Plaintiffs argued to the

Planning Commission that RLUIPA required the granting of their
permit application.

Plaintiffs contended that their Special

Use Permit application could not be denied unless the Planning
Commission determined that there was a compelling governmental
interest and that the denial of the requested permit was the
least restrictive means of furthering that interest.

Disputed

issues in that regard were resolved by the Planning
Commission.

This court gives collateral estoppel effect to

the Commission’s rulings.
The Planning 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 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., PageID # 3290.

32

The Maui Planning Commission expressly recognized
the RLUIPA requirements relevant to the very matter that is
the subject of Count I.

See ECF No. 185-9, PageID # 3291.

The Planning Commission made factual findings concerning road
safety, a subject that was hotly disputed and properly before
it.

The state court affirmed those factual findings.
c.

The Parties Had an Adequate
Opportunity to Litigate.

Plaintiffs had an “adequate opportunity to
litigate.”

At the contested case hearing, Plaintiffs had a

statutory right to retain counsel and to present evidence and
argument.

See Haw. Rev. Stat. § 91-9(b)(5) and (c).

Additionally, Plaintiffs had “the right to conduct such crossexamination as may be required for a full and true disclosure
of the facts, and . . . the right to submit rebuttal
evidence.”

Haw. Rev. Stat. § 91-10(3).

While the Planning

Commission limited the time each witness was allowed to
testify because written testimony had already been received,
Plaintiffs do not establish that the Planning Commission
refused to allow them the exercise their rights to have
counsel, to cross-examine witnesses, or to submit rebuttal
evidence.

Plaintiffs’ decision not to exercise such rights

33

does not mean that they were denied an “adequate opportunity
to litigate.”
Dodd v. Hood River County, 136 F.3d 1219, 1226-27
(9th Cir. 1998), is instructive on this subject.

In Dodd, the

Ninth Circuit rejected a contention that a party had not had a
full and fair opportunity to administratively litigate a
matter because procedures used before the agency were not as
formal as those used in court proceedings.

Even though

testimony was not sworn and witnesses were not cross-examined,
the Ninth Circuit ruled that the parties had had a full and
fair opportunity to be heard because the parties had had the
opportunity to request a full evidentiary hearing.

That a

party did not invoke that right was not a denial of an
opportunity to litigate.

The Ninth Circuit ruled:

the Dodds’ own failure to request a full
evidentiary hearing before LUBA should not
enable them to avoid the operation of the
issue preclusion doctrine now. Otherwise,
parties who desire to pursue actions in a
different forum could do so without fearing
the effects of issue preclusion by merely
failing to pursue a claim by all procedures
available to them in the first forum. The
Dodds were given a sufficient opportunity
to be heard on the land value issue.
Id., 136 F.3d at 1227.
Of course, Plaintiffs also had the right to appeal
the Planning Commission’s decision.
34

See Haw. Rev. Stat. § 91-

14(a).

Plaintiffs exercised that right, appealing the

Commission’s Finding of Fact # 68, which stated that the
denial of the permit represented the least restrictive means
of furthering the compelling governmental interest in road
safety.

See ECF No. 215-5, PageID #s 4319-20.

When judicial

review is unavailable, a party lacks “an adequate opportunity
to litigate.”

However, if judicial review of an

administrative adjudication is available but unused, a party
has had “an adequate opportunity to litigate,” and the
administrative decision is given preclusive effect.

Id.

As the Ninth Circuit stated in Plaine v. McCabe, “If
an adequate opportunity for review is available, a losing
party cannot obstruct the preclusive use of the state
administrative decision simply by foregoing her right to
appeal.”

797 F.2d 713, 719 n.12 (9th Cir. 1986).

Under

section 91-14(g), Plaintiffs could have appealed any alleged
lack of due process or any other right, including any alleged
failure to provide required rights with respect to contested
cases such as requiring statements to have been made under
oath, allowing witnesses to testify in person, and being given
an opportunity to cross-examine witnesses.

Plaintiffs’

failure to assert on appeal any lack of fairness before the

35

Planning Commission precludes them from raising such issues
before this court.
The court is unpersuaded by Plaintiffs’ citation of
Hawaii Administrative Rule § 12-201-52 for the proposition
that procedural protections in contested cases only apply when
there is a formal intervenor.

An administrative rule cannot

take away rights specifically provided by state statute.
Moreover, the cited administrative rule does not stand for the
proposition for which Plaintiffs cite it.

It states:

Purpose: If the petition to intervene is
granted by the commission, this subchapter
and subchapters 2, 3, and 5 shall govern
the contested case procedures before the
commission. Subchapters 3, 4 and 5 shall
not be applicable where the commission does
not have final authority over any matter.
These procedures may be modified or waived
by the parties with the consent of a proper
majority of the commission or hearing
officer, as the case may be.
Haw. Admin. R. 12-201-52.

Hawaii Administrative Rule § 12-

201-52 does not state that procedural protections will be
provided only when there is an intervenor in a contested case.
Collateral estoppel bars Count I.
is granted to the County as to Count I.

36

Summary judgment

B.

Summary Judgment is Denied With Respect to
Count IV (RLUIPA, 42 U.S.C. § 2000cc(b)(1)).

In Count IV, Plaintiffs assert that Defendants
violated a different RLUIPA section, 42 U.S.C. § 2000cc(b)(1).
Count IV asserts that the County of Maui deprived Plaintiffs
of their right to freely exercise their religion by imposing
or implementing “a land use regulation in a manner that treats
a religious assembly or institution on less than equal terms
with a nonreligious assembly or institution.”

The Ninth

Circuit has identified the elements of a § 2000cc(b)(1)
violation: (1) there must be an imposition or implementation
of a land-use regulation, (2) by a government, (3) on a
religious assembly or institution; (4) on less than equal
terms with a nonreligious assembly or institution.

See Centro

Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d
1163, 1170-71 (9th Cir. 2011); Calvary Chapel, 2017 WL 6883866,
at *8.

“The statute does not provide for ‘strict scrutiny’ of

a ‘compelling governmental interest’ to see if the government
can excuse the equal terms violation.”

Centro Familiar

Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1171
(9th Cir. 2011).
A defendant “violates the equal terms provision only
when a church is treated on a less than equal basis with a

37

secular comparator, similarly situated with respect to an
accepted zoning criteria”

See id. at 1173.

Plaintiffs have

pointed to evidence of the grant of a Special Use Permit to a
nonreligious landowner.

For example, the Maui Planning

Commission approved a Special Use Permit for Ali`i Kula
Lavender Farm to conduct tourism activities (including
agricultural classes and workshops), to operate a gift shop,
to conduct wedding ceremonies, and to have catered receptions
and other special events.

See ECF No. 185-13, PageID # 3402.

The Maui Planning Commission also granted a Special Use Permit
to Hale Akua Garden Farm Retreat Center to use agricultural
land for a well-being education operation with overnight
accommodations.

See ECF No. 185-16, PageID #s 3470, 3484,

3494.
Whether those grants are evidence of “less than
equal terms” is not clear and appears to turn on factual
disputes, as this court noted in its order of July 20, 2018.
See 322 F. Supp. 3d 1051, 1066 (D. Haw. 2018).

The grant of a

permit to a different landowner was a fact presented to the
Planning Commission.

See Minutes of Maui Planning Commission

at 50 (March 25, 2014) (“there are churches of course in
numerous locations throughout the Agricultural District which
are operating today”),
38

https://www.mauicounty.gov/ArchiveCenter/ViewFile/Item/19187
(last visited July 19, 2019).

However, the Planning

Commission, not having the particular Count IV RLUIPA claim
before it, made no determination going to the RLUIPA element
of “less than equal terms” such that any preclusion doctrine
clearly applies.

The County of Maui fails to demonstrate

that, for RLUIPA purposes, it was justified in treating
Plaintiffs differently from a secular comparator, assuming
such differential treatment occurred.

Summary judgment is

denied with respect to Count IV.
C.

Summary Judgment is Granted in Favor of the
County of Maui With Respect to Count VI (Free
Exercise of Religion Claim Under § 1983).

In Count VI, Plaintiffs assert that Defendants
violated their right to freely exercise their religion, as
secured by the First Amendment of the Constitution, “by
substantially burdening Plaintiffs’ religious exercise without
using the least restrictive means of achieving a compelling
governmental interest, and by discriminating against the
plaintiffs on the basis of religion.”

ECF No. 1, PageID # 38.

Plaintiffs also assert that the burden on their religion does
not pass the rational basis test.

Id.

In Employment Division v. Smith, 494 U.S. 872, 879
(1990), the Supreme Court analyzed a free exercise of religion
39

claim under a rational basis test.

Under that test, a

rationally based, neutral law of general applicability does
not violate the right to free exercise of religion even though
the law incidentally burdens a particular religious belief or
practice.

Id.

Smith noted that “the right of free exercise

does not relieve an individual of the obligation to comply
with a valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that
his religion prescribes (or proscribes).”

494 U.S. at 879.

The Court explained: “The government’s ability to enforce
generally applicable prohibitions of socially harmful conduct,
like its ability to carry out other aspects of public policy,
cannot depend on measuring the effects of a governmental
action on a religious objector’s spiritual development.”
at 885 (quotation marks and citation omitted).

Id.

To the extent

Plaintiffs assert that the neutral law of general
applicability here imposed a burden on their free exercise of
religion, they make no showing that the rational burden test
is unsatisfied.

The court rules that declining to issue

Plaintiffs a Special Use Permit satisfies the rational basis
test.
The Planning Commission ruled that the safety issue
posed by Plaintiffs’ proposed use of Haumana Road warranted
40

denial of the permit.

But that determination does not end the

analysis of Count IV.

Smith also recognized a “hybrid” claim

in which a Free Exercise Clause claim is asserted in
conjunction with the assertion of other constitutional
protections, such as freedom of speech and of the press.
U.S. at 881.

494

The Ninth Circuit has explained that such a

“hybrid” claim requires the application of strict scrutiny
analysis.

See San Jose Christian Coll. v. City of Morgan

Hill, 360 F.3d 1024, 1031 (9th Cir. 2004).

The Ninth Circuit

has provided the following guidance:
Three principles of First Amendment law may
be distilled from the abovementioned
authorities. If the zoning law is of
general application and is not targeted at
religion, it is subject only to rational
basis scrutiny, even though it may have an
incidental effect of burdening religion.
If such a law burdens the free exercise of
religion and some other
constitutionally-protected activity, there
is a First Amendment violation unless the
strict scrutiny test is satisfied (i.e.,
the law is narrowly tailored to advance a
compelling government interest). This type
of First Amendment claim is sometimes
described as a “hybrid rights” claim.
Similarly, if the zoning law is not neutral
or generally applicable, but is directed
toward and burdens the free exercise of
religion, it must meet the strict scrutiny
test. Finally, if the zoning law only
incidentally burdens the free exercise of
religion, with the law being both neutral
and generally applicable, it passes
constitutional muster unless the law is not
41

rationally related to a legitimate
governmental interest.
Id. at 1031 (citations omitted).
At the hearing, Plaintiffs stated that they are
asserting a hybrid claim in that they are claiming both a
violation of their freedom of religion rights and violations
of their free speech and equal protection right.

As discussed

above, the County had a compelling interest in protecting the
public, and Plaintiffs are collaterally estopped from
relitigating the issue of whether the permit denial is the
least restrictive means of furthering that interest.

Summary

judgment is granted in favor of the County of Maui with
respect to Count VI.

The County demonstrates as a matter of

law that its challenged conduct satisfies strict scrutiny.
D.

Summary Judgment is Granted in Favor of the
County of Maui With Respect to Count VII (Equal
Protection Claim Under § 1983).

In Count VII, Plaintiffs assert that Defendants
deprived them of “equal protection of the laws, as secured by
the Fourteenth Amendment to the United States Constitution, by
discriminating against Plaintiffs in the imposition and
implementation of their land use regulations.”
PageID # 39.

ECF No. 1,

The Equal Protection Clause of the Fourteenth

Amendment provides that no State shall “deny to any person

42

within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1.

Pursuant to the Equal Protection

Clause, the government must treat all similarly situated
persons alike.
Cir. 2003).

Green v. City of Tucson, 340 F.3d 891, 896 (9th

“A showing that a group was singled out for

unequal treatment on the basis of religion may support a valid
equal protection argument.” Alpha Delta Chi–Delta Chapter v.
Reed, 648 F.3d 790, 804 (9th Cir. 2011) (quotation marks and
citation omitted).
To determine whether the County of Maui’s conduct
violates the Equal Protection Clause, the court first selects
the proper level of scrutiny to apply.

See Honolulu Weekly,

Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir. 2002).

When

conduct burdens a fundamental right or makes a distinction
based on a suspect classification, the court employs strict
scrutiny review. Id.

Conduct that is based on religious

rights is a distinction based on a suspect classification.
See Friedman v. Rogers, 440 U.S. 1, 17 (1979).

Accordingly,

for the County of Maui’s conduct with respect to Plaintiffs’
religious rights to survive an equal protection challenge, it
must pass strict scrutiny, which asks whether the challenged
conduct, law, or ordinance is narrowly tailored to serve a

43

compelling governmental interest.

See Honolulu Weekly, 298

F.3d at 1047.
Even assuming that Plaintiffs have been treated
differently from similarly situated organizations, the County
of Maui’s conduct satisfies strict scrutiny.

As noted in

preceding sections of this order, the County has a compelling
interest in road safety.

Under the collateral estoppel

doctrine, the parties are bound by the Planning Commission’s
factual determination, as affirmed by the state court, that
denial of the permit is the least restrictive means of
furthering that interest.

Accordingly, the court grants

summary judgment in favor of the County of Maui with respect
to Count VII.
E.

Summary Judgment is Granted in Favor of the
County of Maui With Respect to Count II (RLUIPA,
42 U.S.C. § 2000cc(b)(2)).

This court addresses Count II out of numerical order
so that similar counts can be discussed in proximity to each
other.
In Count II, Plaintiffs bring a RLUIPA claim under a
section of RLUIPA different from the sections on which Counts
I and IV are based.

Count II asserts that the County of Maui

violated 42 U.S.C. § 2000cc(b)(2) by imposing or implementing
“a land use regulation that discriminates against any assembly
44

or institution on the basis of religion or religious
denomination.”

Evidence of discriminatory intent has been

said by the Second Circuit to be required to establish a claim
under 42 U.S.C. § 2000cc(b)(2) in the same way required by
equal protection precedent.

See Chabad Lubavitch of

Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm'n, 768
F.3d 183, 198 (2d Cir. 2014); Calvary Chapel Bible Fellowship
v. Cty. of Riverside, 2017 WL 6883866, at *12 (C.D. Cal. Aug.
18, 2017) (“Although the Ninth Circuit has not yet addressed
the analysis under the nondiscrimination provision of RLUIPA,
other courts have looked to equal protection precedent in
weighing such claims”).
Under 42 U.S.C. § 2000cc(b)(2), Plaintiffs have the
initial burden of showing that they were treated differently
from a similarly situated organization.

While there may be a

question of fact as to such discriminatory intent, the court
nevertheless grants summary judgment in favor of Defendants
with respect to Count II for the reasons set forth with
respect to the equal protection claim asserted in Count VII.
If the equal protection claim asserted in Count VII fails
because the County of Maui has demonstrated a compelling
governmental interest that is furthered by a means narrowly
tailored to further that interest, and if this court looks to
45

that equal protection precedent in evaluating Plaintiffs’
§ 2000cc(b)(2) claim, it follows that the § 2000cc(b)(2) claim
asserted in Count II also fails.
As discussed above, Plaintiffs are bound by the
Planning Commission’s factual finding that the permit denial
is the least restrictive means of furthering the County of
Maui’s interest in keeping the public safe.

This was a

finding affirmed on appeal to the state court.

While

Plaintiffs reserved their right to bring Count II in this
court, they remain bound, in litigating Count II here, by
administrative determinations, affirmed by the state court,
that are final.
F.

The Court Grants Summary Judgment in Favor of
the County of Maui With Respect to Counts VIII
and IX (Violations of the Hawaii Constitution).

Count VIII alleges a violation of Plaintiffs’ free
exercise of religion rights under Hawaii’s constitution, and
Count IX alleges an equal protection violation under Hawaii’s
constitution.

Whether Plaintiffs could validly exercise an

England reservation with respect to state-law claims is
unclear.

The parties have never mentioned, much less briefed,

this issue.

Even if such claims could be said to have been

reserved for adjudication by this court, the County is

46

entitled to summary judgment with respect to Counts VIII and
IX.
Article I, section 4 of the Hawaii constitution
guarantees a right to freedom of religion.

In Korean Buddhist

Dae Won Sa Temple of Hawaii v. Sullivan, 87 Haw. 217, 245-46,
953 P.2d 1315, 1343-44 (1998), the Hawaii Supreme court noted
that, in adjudicating a freedom of religion claim under
Article I, section 4 of the Hawaii Constitution, plaintiffs
must show a substantial burden on their religion.

If

plaintiffs make such a showing, the burden shifts to
defendants to demonstrate a compelling state interest that is
narrowly tailored to further that interest.

Id.

This court

has already determined that the County of Maui has stated a
compelling governmental interest in protecting the public.
This court has also recognized the preclusive effect of the
Planning Commission’s factual finding, as affirmed by the
state court, that the permit denial is the least restrictive
means of furthering that interest.

Plaintiffs’ freedom of

religion claim under the Hawaii Constitution therefore cannot
proceed even assuming Plaintiffs have shown a substantial
burden on their religion.
With respect to the equal protection claim asserted
under the Hawaii constitution in Count IX, the court also
47

grants summary judgment in favor of the County.

Article I,

section 5 of the Hawaii constitution provides that “[n]o
person shall be deprived of life, liberty or property without
due process of law, nor be denied the equal protection of the
laws, nor be denied the enjoyment of the person’s civil rights
or be discriminated against in the exercise thereof because of
race, religion, sex or ancestry.”

As with the federal equal

protection analysis, Hawaii courts apply a strict scrutiny
standard “where equal protection challenges involve ‘suspect’
classifications or fundamental rights.”

See Nagle v. Bd. of

Educ., 63 Haw. 389, 392, 629 P.2d 109, 111–12 (1981).

Under

that standard, as explained in connection with Count VII (the
federal equal protection claim), the County must show a
compelling governmental interest and the least restrictive
means of furthering that interest.

The County is entitled to

rely on the Planning Commission’s rulings, affirmed by the
state court, that the County has made the showing required by
strict scrutiny analysis.
V.

CONCLUSION.
The court grants summary judgment in favor of the

County of Maui with respect to all claims except Count IV,
which asserts an equal terms claim under RLUIPA, 42 U.S.C.

48

§ 2000cc(b)(1).

Count IV is the only claim remaining for

further adjudication.
IT IS SO ORDERED.
DATED: Honolulu, July 22, 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/WRP;
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT COUNTY OF MAUI'S MOTION FOR SUMMARY
JUDGMENT

49