Kealoha v. Totto
ORDER ADOPTING FINDINGS AND RECOMMENDATION 39 , AND REMANDING ACTION TO THE CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAII. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 5/8/2017. (afc)Order overrules the objections to the Findings and Recommendation filed by Defendant Charles W. Totto (ECF no. 40 ), and by Defendant Letha A.S. DeCaires (ECF no. 41 ). The action is REMANDED forthwith. "All pending motion dates and deadlines are vacated." MOTIONS TERMINATED/HEARING DATES VACATED: Motions - ECF nos. 5 , 7 , 8 , 9 , 10 , 11 , 14 , 17 , 18 , 20 , 33 , 42 . CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LOUIS M. KEALOHA; KATHERINE E.
KEALOHA; KRISTINA KEALOHA, a
minor child, by her next friend
KATHERINE E. KEALOHA,
Civ. No. 16-00682 JMS-KSC
ORDER ADOPTING FINDINGS
AND RECOMMENDATION, AND
REMANDING ACTION TO THE
CIRCUIT COURT OF THE FIRST
CIRCUIT, STATE OF HAWAII
CHARLES W. TOTTO, individually and
as Executive Director and Legal Counsel
of the Honolulu Ethics Commission;
LETHA A.S. DECAIRES, individually
and as investigator for the Honolulu
Ethics Commission; HONOLULU
ETHICS COMMISSION; THE CITY
AND COUNTY OF HONOLULU,
ORDER ADOPTING FINDINGS AND RECOMMENDATION, AND
REMANDING ACTION TO THE CIRCUIT COURT OF THE FIRST
CIRCUIT, STATE OF HAWAII
Defendants Charles Totto (“Totto”), Letha DeCaires (“DeCaires”),
Honolulu Ethics Commission (“HEC”), and the City and County of Honolulu (the
“City”) (collectively, “Defendants”) object under 28 U.S.C. § 636(b)(1) and Local
Rule 72.4 to a March 13, 2017 Findings and Recommendation of Magistrate Judge
Kevin S.C. Chang to Grant in Part and Deny in Part Plaintiffs’ Motion to Remand,
ECF No. 39 (the “March 13, 2017 F&R”). Def. Totto’s Obj., ECF No. 40; Def.
DeCaires’ Obj., ECF No. 41. The March 13, 2017 F&R recommended that the
court remand this action to the Circuit Court of the First Circuit, State of Hawaii
(“State Court”) because the removal was untimely. It determined that Plaintiffs’
presentation of claims for violations of Plaintiffs’ “Garrity rights”1 sufficiently
triggered 28 U.S.C. § 1446(b), which “required Defendants to remove the action
within 30 days after the service of the Complaint,” and Defendants failed to meet
this 30-day window. March 13, 2017 F&R, at 15.
Upon de novo review, the court agrees that the Garrity claims put
Defendants on notice that the case was removable. Accordingly, the court
OVERRULES the objections, ADOPTS the March 13, 2017 F&R, and
REMANDS the action to State Court.
Plaintiffs Louis Kealoha, Katherine Kealoha, and Kristina Kealoha
(collectively, “Plaintiffs”) filed their Complaint in State Court on June 17, 2016,
and served Defendants on June 20, 2016. Compl. at 1, ECF No. 1-2. The
“Garrity rights” refers to rights recognized by Garrity v. New Jersey, 385 U.S. 493, 500
(1967) (“We now hold the protection of the individual under the Fourteenth Amendment against
coerced statements prohibits use in subsequent criminal proceedings of statements obtained
under threat of removal from office, and that it extends to all, whether they are policemen or
other members of our body politic.”).
Complaint is not a model of clarity, spanning forty-three pages without
enumerating specific causes of action. Id. However, it does assert violations of
Plaintiffs’ Garrity rights in three separate places:
80. In her unlawful zeal to create any ethical violation whether
real or manufactured, and as evidence of her conflict of interest
and improper motives, and with the full approval of and
ratification by Totto, DeCaires violated the rights of HPD
officers, witnesses and the plaintiffs, provided false and
defamatory information to witnesses and others, violated
Garrity rights of witnesses and plaintiffs, violated the laws and
procedures of the Ethics Commission, shared confidential as
well as fabricated information with others, and improperly
caused the adult plaintiffs to be involved in other proceedings
and investigations, all while continuing to benefit from the
continued renewal of her 89 day contracts.
99. . . . [I]n the course of these illegal investigations:
l) Totto and/or DeCaires deliberately, improperly and
illegally shared with other state and law enforcement
agencies information provided plaintiffs, by witnesses,
by HPD officers, and by other County employees, in
violation of their Garrity and other rights. The violations
were so systematic and egregious that, in an
unprecedented move, the State Of Hawaii Organization
of Police Officers (“SHOPO”) filed a formal union
grievance, stating that HPD officers were being
compelled to appear before the Ethics Commission “to
answer questions without being informed of the
allegations made against them or being afforded the
opportunity to view the complaint,” and were “not being
afforded any Garrity Rights prior to being compelled to
answer questions.” . . .
m) Totto and/or DeCaires deliberately, improperly and
illegally shared with third parties, including the attorney
for Gerard Puana, information provided plaintiffs, by
witnesses, by HPD officers, and by other County
employees, in violation of their Garrity and other rights[.]
Compl. ¶¶ 80, 99(l), 99(m).
On July 11, 2016, Defendants filed a motion for more definite
statement and motion to strike. ECF Nos. 15-10, 15-22, 15-24. On November 21,
2016, the State Court granted the motion for more definite statement (“MDS”),
directing Plaintiffs to file a MDS by December 16, 2016, enumerating specific
claims against specific Defendants. ECF No. 1-3. Plaintiffs filed their MDS on
December 20, 2016, which included a claim for violation of Plaintiffs’ civil rights
under 42 U.S.C. § 1983. ECF No. 1-5, at 3-4.
On December 30, 2016, Totto filed a Notice of Removal (“Notice”)
pursuant to 28 U.S.C. §§ 1441(a) and 1446 because of Plaintiffs’ § 1983 claim.
ECF No. 1.
Plaintiffs filed their Motion to Remand to State Court on January 10,
2017. ECF No. 13. Defendants filed their Opposition on February 17, 2017, and
Plaintiffs filed their Response on February 24, 2017. ECF Nos. 32, 37. The March
13, 2017 F&R recommended granting Plaintiffs’ Motion to Remand. ECF No. 39.
Totto filed his Objection on March 20, 2017, and DeCaires filed her Objection on
March 27, 2017. ECF Nos. 40, 41. Plaintiffs filed their Oppositions to Totto’s and
DeCaires’ Objections on March 31, 2017, and April 13, 2017, respectively. ECF
Nos. 43, 44.
III. STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”).
Under a de novo standard, this court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United
States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not
hold a de novo hearing; however, it is the court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate judge’s findings or
recommendation to which a party objects. United States v. Remsing, 874 F.2d 614,
618 (9th Cir. 1989).
Defendants argue that removal was timely because “the first ‘paper’
from which Defendants could glean that Louis and Katherine Kealoha were
bringing a federal claim against them was in their MDS.” Totto Obj., at 5. The
Section 1441 authorizes removal of “any civil action brought in a
State court of which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). And district courts “have original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United
States.” Id. § 1331.
But the ability to remove under section 1441 is subject to the time
constraints of 28 U.S.C. § 1446. This latter section “provides two thirty-day
windows during which a case may be removed -- during the first thirty days after
the defendant receives the initial pleading or during the first thirty days after the
defendant receives a paper ‘from which it may first be ascertained that the case is
one which is or has become removable’ if ‘the case stated by the initial pleading is
not removable.’” Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 692 (9th Cir.
2005) (quoting § 1446(b)). Thus, “[w]hen the defendant receives enough facts to
remove on any basis under section 1441, the case is removable, and section 1446’s
thirty-day clock starts ticking.” Durham v. Lockheed Martin Corp., 445 F.3d
1247, 1253 (9th Cir. 2006). The second thirty-day window under section
1446(b)(3) “requires a paper that shows a ground for removal that was previously
unknowable or unavailable.” Chan Healthcare Grp., PS v. Liberty Mut. Fire Ins.
Co., 844 F.3d 1133, 1142 (9th Cir. 2017).
Here, the Complaint asserted violations of Plaintiffs’ “Garrity rights”
in three separate paragraphs, specifically alleging that Totto and DeCaires
compelled Plaintiffs to answer questions and then illegally shared the answers with
law enforcement. Compl. ¶¶ 80, 99(l), 99(m). And “Garrity rights” themselves
are very specific rights arising under the United States Constitution, referring to
“the protection of the individual under the Fourteenth Amendment against coerced
statements,” which “prohibits use in subsequent criminal proceedings of statements
obtained under threat of removal from office, and that it extends to all, whether
they are policemen or other members of our body politic.” Garrity v. New Jersey,
385 U.S. 493, 500 (1967). Consequently, the allegation that Defendants violated
Plaintiffs’ “Garrity rights” put Defendants on notice that Plaintiffs were asserting
violations of a specific United States constitutional right.2 That is sufficient to start
section 1446’s initial thirty-day clock.
Although the Complaint does not expressly invoke § 1983, that is not necessary to
sufficiently state a removable federal claim. The Supreme Court has held -- albeit in a different
context -- that plaintiffs do not need to specifically identify § 1983 to adequately state a claim
justifying federal jurisdiction. See Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014) (“In
particular, no heightened pleading rule requires plaintiffs seeking damages for violations of
constitutional rights to invoke § 1983 expressly in order to state a claim.”).
Defendants cite an array of cases to argue that the Complaint’s “vague
references” are not enough to adequately identify a federal claim, Totto Obj. at 6-8,
DeCaires Obj. at 4-6, but Defendants’ reliance is misplaced. These cases involve
allegations with passing reference to a violation of “state and federal law,” not a
specific constitutional right similar to Garrity rights. See, e.g., Hemmelgarn v.
City of Seattle, 2014 WL 996483, at *1 (W.D. Wash. Mar. 13, 2014) (“The only
reference to federal law in the Complaint is as follows: ‘[a]s a result of defendant’s
actions, plaintiff has suffered . . . emotional distress, economic loss, and
deprivation of his liberty and property interests as protected by State and federal
law applicable to this matter.’” (quoting the complaint)); Shelley’s Total Body
Works v. City of Auburn, 2007 WL 765205, at *1-2 (W.D. Wash. Mar. 9, 2007)
(involving only references to the text of the Ninth and Fourteenth Amendments
and “a claim under the State and Federal Law”); Cevallos v. Silva, 541 F. App’x
390, 393 (5th Cir. 2013) (noting that allegations of a “violation of his civil and
constitutional rights” was insufficient to trigger section 1446). 3
Cevallos also reasoned that section 1446’s thirty-day clock was not triggered because
the complaint “d[id] not allege any specific claim under § 1983 or a violation of the United
States Constitution.” 541 F. App’x at 393. Alleging a violation of a Garrity right appears
inherently federal, as the right’s namesake relied on the United States Constitution to establish
the protection. Garrity, 385 U.S. at 500. Moreover, it is unclear whether Hawaii recognizes a
private of action for damages for violation of rights guaranteed under the Hawaii State
Constitution. See, e.g., Annan-Yartey v. Muranaka, 2017 WL 1243499, at *3 n.8 (D. Haw. Apr.
3, 2017) (citing cases). It is thus even more apparent that the Complaint included a federal
question given that Plaintiffs most likely cannot bring a similar claim under Hawaii state law,
regardless of whether a similar protection exists in the Hawaii state constitution.
By repeatedly alleging violations of Plaintiffs’ “Garrity rights,” along
with associated factual allegations that Defendants compelled Plaintiffs to provide
answers that were then illegally shared with law enforcement, the Complaint
provided Defendants adequate notice that the action contained a federal question.
Thus, the Complaint triggered section 1446’s thirty-day clock, and by the time
Defendants sought removal months later, their time had already run out.
Based on the foregoing, the court ADOPTS the March 13, 2017 F&R.
The objections of Totto and DeCaires are OVERRULED. The action is
REMANDED forthwith to the State Court, and all pending motion dates and
deadlines are vacated.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 8, 2017.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Kealoha v. Totto, Civ. No. 16-00682 JMS-KSC, Order Adopting Findings and Recommendation,
and Remanding Action to the Circuit Court of the First Circuit, State of Hawaii
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?