Petition for Writ of Certiorari — Aloha Bed & Breakfast, Petitioner v. Diane Cervelli, et al.

Supreme Court briefOct 9, 2018

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NO. __________

IN THE

Supreme Court of the United States

ALOHA BED & BREAKFAST,

A HAWAI`I SOLE PROPRIETORSHIP,

Petitioner,

DIANE CERVELLI AND TAEKO BUFFORD,

Respondents,

WILLIAM D. HOSHIJO, AS EXECUTIVE DIRECTOR

OF THE HAWAI`I CIVIL RIGHTS COMMISSION,

Intervenor-Respondent.

On Petition for Writ of Certiorari to the

Intermediate Court of Appeals of Hawai`i

PETITION FOR A WRIT OF CERTIORARI

SHAWN A. LUIZ

1132 Bishop Street,

Suite 1520

Honolulu, HI 96813

(808) 538-0500

L. JAMES HOCHBERG, JR.

Counsel of Record

700 Bishop Street,

Suite 2100

Honolulu, HI 96813

(808) 534-1514

jim@jameshochberglaw.com

Counsel for Petitioner

QUESTIONS PRESENTED

Phyllis Young, a retiree, rents three bedrooms in

her family home using the name Aloha Bed &

Breakfast to make ends meet. She welcomes everyone

as guests provided they abide by her “house rules,”

including that no romantic partners share a bedroom

unless they are a married man and woman. When a

same-sex couple tried to reserve a bedroom in

advance, Mrs. Young explained that accommodating

them would violate her religious beliefs, cited

Hawai`i’s Mrs. Murphy exemption, and referred the

couple to a nearby friend who was happy to host them.

The Hawai`i Intermediate Court of Appeals

judicially rewrote the Mrs. Murphy exemption for the

first time in Mrs. Young’s case, holding that it applied

only to long-term rentals. The Court then declared

Mrs. Young’s family home a place of public

accommodation, and held her in violation of state

public-accommodations law. This renders her liable

for compensatory, treble, and punitive damages,

statutory fines, and ruinous attorney fees and costs in

conflict with this Court’s precedent and decisions by

the Second, Third, Fourth, Fifth, and D.C. Circuits.

The questions presented are:

1. Whether holding Mrs. Young liable without

fair notice that her actions could be unlawful violates

the Fourteenth Amendment’s Due Process Clause.

2. Whether the Commission’s efforts to punish

Mrs. Young for exercising her religious beliefs in her

own home violate the First Amendment’s Free

Exercise Clause.

PARTIES TO THE PROCEEDING

Petitioner Aloha Bed & Breakfast is a Hawai`i sole

proprietorship owned by Phyllis Young, an individual

and citizen of Hawai`i.

Respondents Diane Cervelli and Taeko Bufford

are individuals and citizens of California.

Intervenor-Respondent William D. Hoshijo is the

Executive Director of the Hawai`i Civil Rights

Commission, an agency of the State of Hawai`i.

CORPORATE DISCLOSURE STATEMENT

Petitioner Aloha Bed & Breakfast is a Hawai`i sole

proprietorship wholly owned by Phyllis Young. It does

not have any parent companies and no entity or other

person has any ownership interest in it.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... ii

TABLE OF AUTHORITIES .................................... xii

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS ................................ 1

INTRODUCTION ...................................................... 2

STATEMENT OF THE CASE ................................... 4

A. Factual Background ........................................ 4

1. Mrs. Young and her home ......................... 4

2. Mrs. Young’s Interaction with Ms.

Cervelli and Ms. Bufford ........................... 6

B. Procedural Background ................................... 7

1. The Commission Proceedings .................... 7

2. Trial Court Proceedings ............................. 9

3. Appellate Court Proceedings ................... 10

REASONS FOR GRANTING THE WRIT............... 12

I. The Hawai`i Court of Appeals narrowed the

Mrs. Murphy exemption’s scope and applied

that novel reading to Mrs. Young without fair

warning, violating the Fourteenth

Amendment’s Due Process Clause. .................... 14

A. Due process requires that citizens have fair

warning of the law’s demands. ..................... 16

B. The fair-warning requirement applies to

all laws but it has special force in regards

to the application of a quasi-criminal,

public-accommodations law to a person’s

home that is prohibitory and stigmatizing,

or which inhibits citizens’ exercise of their

constitutional rights. ..................................... 19

C. Hawai`i’s novel application of its publicaccommodation law to Mrs. Young merits a

strict vagueness test. ..................................... 21

1. Hawai`i’s public-accommodation law is

quasi-criminal and its effects on Mrs.

Young are both prohibitory and

stigmatizing.............................................. 21

2. Hawai`i’s application of its publicaccommodation law to Mrs. Young

inhibits the exercise of her rights to

privacy, intimate association, and the

free exercise of religion. ........................... 24

D. The Hawai`i Court of Appeals’ ruling

directly conflicts with this Court’s fairnotice decisions and those of the Second,

Third, Fourth, Fifth, and D.C. Circuits. ....... 26

1. The Hawai`i Court of Appeals’ ruling

conflicts with this Court’s holdings in

Fox Television Stations and Gentile. ....... 27

2. The Hawai`i Court of Appeals’ ruling

conflicts with decisions by the Second,

Third, Fourth, Fifth, and D.C. Circuits. . 28

II. The Commission’s campaign against Mrs.

Young violates the Free Exercise Clause

under Lukumi and Masterpiece Cakeshop. ........ 30

A. Lukumi bars the Commission from

gerrymandering Hawai`i law to punish

Mrs. Young for her religious beliefs. ............ 31

B. Masterpiece Cakeshop demonstrates that

the Commission’s palpable hostility

towards Mrs. Young’s religious beliefs

violates her free-exercise rights. ................... 34

CONCLUSION ......................................................... 37

APPENDIX TABLE OF CONTENTS ...................... ia

Hawai`i Intermediate Court of Appeals Opinion,

electronically filed February 23, 2018 ............... 1a

Hawai`i Supreme Court Order Rejecting

Application for Writ of Certiorari,

electronically filed July 10, 2018...................... 38a

Order Granting Plaintiffs’ and PlaintiffIntervenor’s Motion for Partial Summary

Judgment for Declaratory and Injunctive Relief

and Denying Defendant’s Motion for Summary

Judgment,

filed April 15, 2013 (ROA 1 1502-1504)............. 40a

Order Granting the Parties’ Stipulated

Application for Appeal from Interlocutory

Order,

filed May 9, 2013 (ROA 1517-1520) ................. 45a

Stipulation and Order Re Time to File Motion

for Attorneys’ Fees,

filed April 23, 2013 (ROA 1505-1506) .............. 50a

Order Granting Motion to Intervene,

filed January 31, 2012 (ROA 137-138)............. 53a

Judgment on Appeal,

electronically filed March 20, 2018 .................. 55a

U.S. Const. amend I ............................................... 57a

U.S. Const. amend XIV, § 1 ................................... 57a

HRS § 368-17 Remedies ......................................... 58a

Excerpts from HRS § 489-2 (2007) Definitions ..... 60a

ROA stands for the Record on Appeal, the original imaged

record of the First Circuit State of Hawaii, electronically filed in

the Intermediate Court of Appeals on July 11, 2013. ROA

citations reflect the PDF page numbers in this combined PDF

document.

vii

HRS § 489-3 (2007) Discriminatory practices

prohibition .............................................................. 61a

HRS § 489-8 Civil penalty ..................................... 62a

Excerpts from HRS § 515-2 (2007) Definitions ..... 63a

Excerpt

from

HRS

515-3

(2007)

Discriminatory practices ........................................ 64a

Excerpts from HRS § 515-4(a)(2) (2007) ............... 65a

Excerpts from Complaint for Injunctive Relief,

Declaratory Relief, and Damages,

filed December 19, 2011 (ROA 34) ................... 66a

Excerpts from First Amended Answer and

Affirmative Defenses to Complaint Filed

December 19, 2011,

filed July 25, 2012 (ROA 361-363) ................... 67a

Excerpts from exhibits attached to Declaration

of Shawn A. Luiz in support of Defendant’s

Motion to Compel Plaintiffs Cervelli and

Bufford’s Responses to Defendant’s Discovery

Requests,

filed November 16, 2012 ................................... 70a

Exhibit 6 Plaintiff’s Responses and Specific

Objections to Defendant’s First Set of

Interrogatories to Plaintiff Taeko Bufford

(ROA 543) .......................................................... 70a

Exhibit 14 Defendant’s Responsive Pretrial

Statement (ROA 623-625) ................................ 72a

viii

Excerpts from declarations attached to

Memorandum in Support of Plaintiffs and

Plaintiff-Intervenor’s

Motion

for

Partial

Summary Judgment and exhibits attached

thereto,

filed February 13, 2013 .................................... 75a

Declaration of Takeo Bufford (ROA 715) ......... 75a

Exhibit B to Declaration of Peter C. Renn –

Defendant’s Responses and Objections to

Plaintiffs and Plaintiff-Intervenor’s First Set

of Interrogatories (ROA 837-838, 839, and

841-842) ............................................................. 76a

Exhibit A to Declaration of Robin Wurtzel –

Hawai‘i Civil Rights Commission Interview

of Phyllis Young (ROA 883, 884-885, 886887) .................................................................... 81a

Exhibit B to Declaration of Robin Wurtzel –

Hawai‘i Civil Rights Commission’s Notice of

Finding of Reasonable Cause to Believe That

Unlawful Discriminatory Practices Have

Been Committed [against Complainant

Diane Cervelli] (ROA 893, 894, and 895)......... 86a

Excerpts from Defendant’s Memorandum in

Support of Motion for Summary Judgment;

Motion and declarations and exhibits attached

thereto,

filed February 20, 2013 .................................... 88a

Memorandum in Support of Defendant’s

Summary Judgment Motion (ROA 929-934) ... 88a

Declaration of Phyllis Young (ROA 937 and

938) .................................................................... 95a

Exhibit 5 to Declaration of Shawn A. Luiz –

Deposition of Phyllis A. Young Volume 2

(ROA 1007, 1010-1014, 1015-1017, 10181019, 1023, and 1024) ....................................... 96a

Exhibit 9 Testimony of Coral Wong Pietsch,

on House Bill 1715, H.D. 1 before the Senate

Committee on Judiciary and Hawaiian

Affairs on March 23, 2005 (ROA 1092, 10941097, and 1099) ............................................... 105a

Excerpts from Defendant’s Memorandum in

Opposition to Plaintiffs’ Motion For Summary

Judgment,

filed March 19, 2013 (ROA 1267-1270) .......... 111a

Excerpts from exhibit to Declaration of Jay S.

Handlin in support of Plaintiffs and PlaintiffIntervenor’s Opposition to Defendant’s Motion

for Summary Judgment,

filed March 19, 2013 ....................................... 116a

Exhibit A Deposition of Phyllis A. Young

Volume 1 (ROA 1362, 1388, and 1390) .......... 116a

Excerpts from Defendant Aloha Bed &

Breakfast’s Reply Memorandum to Plaintiffs’

and

Plaintiff-Intervenor’s

Opposition

Defendant’s Motion for Summary Judgment

filed March 19, 2013 (ROA 1482-1483) .......... 119a

Excerpts from Transcript of First Circuit Court

of Hawai‘i’s March 28, 2013 Hearing on

1) Plaintiffs’ and Plaintiff-Intervenor’s Motion

for Partial Summary Judgment and 2)

Defendant’s Motion for Summary Judgment,

filed in the Intermediate Court of Appeals on

May 28, 2013 ................................................... 122a

Excerpts from Opening Brief of DefendantAppellant Aloha Bed & Breakfast,

electronically filed in the Intermediate Court

of Appeals on September 20, 2013 ................. 124a

Excerpts from Reply Brief of DefendantAppellant Aloha Bed & Breakfast,

electronically filed in the Intermediate Court

of Appeals on December 23, 2013................... 133a

Excerpts from Application for Writ of Certiorari

to Review the February 23, 2018 Opinion of the

Intermediate Court of Appeals of the State of

Hawai`i and its March 20, 2018 Judgment on

Appeal,

filed in the Supreme Court of the State of

Hawai`i on May 18, 2018 ................................ 139a

Excerpts from Reply in Support of Application

for Writ of Certiorari to Review the February 23,

2018 Opinion of the Intermediate Court of

Appeals,

electronically filed in the Supreme Court of

the State of Hawai`i on June 22, 2018 ........... 146a

xii

TABLE OF AUTHORITIES

A.B. Small Co. v. Am. Sugar Refining Co.,

267 U.S. 233 (1925) ........................................... 19

Adorers of the Blood of Christ v. F.E.R.C.,

897 F.3d 187 (3d Cir. 2018) ............................... 36

Barclays Bank PLC v. Franchise Tax Bd. of

Cal,

512 U.S. 298 (1994) ........................................... 20

Bd. of Dirs. of Rotary Int’l v. Rotary Club of

Duarte,

481 U.S. 537 (1987) ........................................... 25

Bouie v. City of Columbia,

378 U.S. 347 (1064) ..................................... 17, 28

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct 2751 (2014) .................................. 26, 35

Carey v. Brown,

447 U.S. 455 (1980) ........................................... 24

Carey v. Piphus,

435 U.S. 247 (1978) ........................................... 23

Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah,

508 U.S. 520 (1993) ............................... 14, 31–33

City of Newport v. Fact Concerts, Inc.,

453 U.S. 247 (1981) ........................................... 23

Colautti v. Franklin,

439 U.S. 379 (1979) ........................................... 21

xiii

Connally v. Gen. Constr. Co.,

269 U.S. 385 (1926) ..................................... 16–18

Cooper Indus., Inc. v. Leatherman Tool Gr.,

Inc.,

532 U.S. 424 (2001) ........................................... 22

Cnty. of Suffolk v. First Am. Real Estate Sols.,

261 F.3d 179 (2d Cir. 2001) ............................... 29

F.C.C. v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) .................................. passim

Fair Hous. Council of San Fernando Valley v.

Roommate.com, LLC,

666 F.3d 1216 (9th Cir. 2012) ........................... 25

Ford Motor Co. v. Tex. Dep’t of Transp.,

264 F.3d 493 (5th Cir. 2001) ............................. 29

Frisby v. Schultz,

487 U.S. 474 (1988) ........................................... 25

F.T.C. v. Wyndham Worldwide Corp.,

799 F.3d 236 (3d Cir. 2015) ............................... 29

Gen. Elec. Co. v. U.S. E.P.A.,

53 F.3d 1324 (D.C. Cir. 1995) ..................... 29–30

Gentile v. State Bar of Nevada,

501 U.S. 1030 (1991) ...................... 13, 16, 27–28

Giaccio v. Pennsylvania,

382 U.S. 399 (1966) ..................................... 19–20

Grayned v. City of Rockford,

408 U.S. 104 (1972) ..................................... 16, 21

xiv

Griswold v. Connecticut,

381 U.S. 479 (1965) ........................................... 24

In re Ruffalo,

390 U.S. 544 (1968) ........................................... 19

Kolender v. Lawson,

461 U.S. 352 (1983) ........................................... 16

Kyllo v. United States,

533 U.S. 27 (2001) ............................................. 25

Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n,

138 S. Ct. 1719 (2018) ........................... 14, 34–37

Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299 (1986) ........................................... 23

Nat’l Endowment for the Arts v. Finley,

524 U.S. 569 (1998) ..................................... 20, 22

Obergefell v. Hodges,

135 S. Ct. 2584 (2015) ....................................... 35

Pac. Mut. Life Ins. Co. v. Haslip,

499 U.S. 1 (1991) .............................................. 22

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972) ........................................... 16

Payton v. New York,

445 U.S. 573 (1980) ........................................... 24

Red Lion Broad. Co. v. F.C.C.,

395 U.S. 367 (1969) ........................................... 19

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ........................................... 25

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ................................. 18–19

Stanley v. Georgia,

394 U.S. 557 (1969) ........................................... 24

State v. Kalama,

8 P.3d 1224 (Haw. 2000) ............................. 28–29

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017) ....................................... 26

United States v. Hoechst Celanese Corp.,

128 F.3d 216 (4th Cir. 1997) ....................... 29–30

United States v. Lanier,

520 U.S. 259 (1997) ........................................... 17

United States v. Ragen,

314 U.S. 513 (1942) ........................................... 16

United States v. Space Hunters, Inc.,

429 F.3d 416 (2d Cir. 2005) ................................. 7

United States v. Williams,

553 U.S. 285 (2008) ..................................... 17, 19

United States v. Windsor,

570 U.S. 744 (2013) ..................................... 34–35

Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc.,

455 U.S. 489 (1982) ............................... 20–22, 24

xvi

Whisenhunt v. Spradlin,

464 U.S. 965 (1983) ........................................... 18

Wyman v. James,

400 U.S. 309 (1971) ........................................... 24

Statutes

28 U.S.C. § 1257(a)..................................................... 1

Haw. Rev. Stat. § 368-3 ........................................... 22

Haw. Rev. Stat. § 368-5 ........................................... 22

Haw. Rev. Stat. § 368-17 ......................................... 22

Haw. Rev. Stat. § 489-3 (2007) ............................ 7, 30

Haw. Rev. Stat. § 489-7.5......................................... 22

Haw. Rev. Stat. § 489-8 ........................................... 22

Haw. Rev. Stat. § 515-4 (2007) .................................. 7

Other Authorities

Mijha Butcher, Using Mediation to Remedy Civil

Rights Violations When the Defendant is Not an

Intentional Perpetrator, 24 Hamline J. Pub. L. &

Pol’y 225 (2003) ........................................................ 23

DECISIONS BELOW

The Hawai`i Intermediate Court of Appeals’

decision is reported at 415 P.3d 919, and reprinted at

App.1a–37a. The Hawai`i Supreme Court’s order

denying the Application for Writ of Certiorari of May

18, 2018, is not reported but is available at No.

SCWC-13-0000806, 2018 WL 3358586 (July 10, 2018),

and reprinted at App.38a–40a. The Hawai`i Circuit

Court’s decision is not reported but is available at No.

11-1-3103-12, 2013 WL 1614105 (Apr. 11, 2013), and

reprinted at App.41a–44a.

STATEMENT OF JURISDICTION

On July 10, 2018, the Hawai`i Supreme Court

issued an order denying Petitioners’ Application for

Writ of Certiorari, thus leaving in place the Hawai`i

Intermediate Court of Appeals’ decision rejecting

Petitioner’s constitutional defenses. This Court has

jurisdiction pursuant to 28 U.S.C. § 1257(a).

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The text of the First and Fourteenth Amendments

to the United States Constitution is found at App.57a.

The relevant portions of Hawai`i’s real-propertytransaction and public-accommodation statutes are

set forth at App.58a–65a.

INTRODUCTION

This case reflects a coordinated campaign by the

Hawai`i government to punish Mrs. Young for her

religious beliefs by reinterpreting a publicaccommodation law to prohibit conduct that was

previously authorized.

Phyllis Young, a retiree, rents three bedrooms in

her family home in Hawai`i, using the name Aloha

Bed & Breakfast, to make ends meet. She welcomes

everyone into her home as guests provided they abide

by certain “house rules,” including that no romantic

partners share a bedroom unless they are a married

man and woman. Mrs. Young even applies this rule to

family members.

Over 10 years ago, Respondents, Ms. Cervelli and

Ms. Bufford, sought to rent a room at Aloha, and Mrs.

Young explained her house rules to them. When Mrs.

Young discovered that Ms. Cervelli and Ms. Bufford

were in a relationship, she found them a bedroom in

a nearby friend’s home. Mrs. Young believed, in good

faith, that Hawai`i protected her right to practice her

faith at home because Hawai`i’s statutory “Mrs.

Murphy exemption” facially protects from state interference those who rent a few rooms in their dwelling.

The Hawai`i Civil Rights Commission would have

none of that. It devised a novel interpretation of state

law that protects the autonomy of citizens who rent

rooms in their own homes “long term,” but deprives

citizens who rent rooms “short term.” After intervening on the private plaintiffs’ side and aligning with

them so strongly that they filed joint briefs, the Commission convinced state courts to accept that unprecedented reading of Hawai`i law for the first time.

The Hawai`i Court of Appeals subsequently

deemed Mrs. Young’s family home a place of public

accommodation. The court held her liable for sexualorientation discrimination under Hawai`i’s publicaccommodation law, agreeing with the Commission’s

reinterpretation of the Mrs. Murphy law.

Mrs. Young contended that penalizing her for

failing to foresee a change in law 10 years later was

fundamentally unfair. Her pleas fell on deaf ears. To

the contrary, the Commission did everything in its

power to ensure that Mrs. Young was punished for

referring Ms. Cervelli and Ms. Bufford to another

private home, including holding her personally liable

for compensatory, treble, and punitive damages,

statutory fines, and ruinous attorney fees and costs.

The Commission and lower courts erred and

conflicted with this Court’s precedents and that of

several federal circuits in so holding. Procedural due

process requires that citizens have fair warning of the

law’s requirements. Mrs. Young undeniably lacked

fair warning that Hawai`i’s Mrs. Murphy exemption

would not protect her. Nonetheless, the Commission

assured the Hawai`i courts that fair notice was not

required to deprive Mrs. Young of her primary source

of income and likely bankrupt her by imposing

punitive damages, penal fines, and ruinous attorney

fees and costs. The only plausible explanation for this

unjust treatment is the Commission’s hostility

towards Mrs. Young’s religious beliefs.

This Court’s review is needed to ensure that the

government respects the basic tenets of procedural

due process and ceases punishing citizens simply for

living out religious beliefs in their own homes.

STATEMENT OF THE CASE

A. Factual Background

1. Mrs. Young and her home

The material facts of this case are undisputed.

Phyllis Young has lived in the same family home in

the Hawai`i Kai area of Honolulu for 40 years. She

forged her married life in that home, raised her

children there, and now hosts her children and

grandchildren there for family gatherings and other

visits. For many years, Mrs. Young has rented out

three spare bedrooms in her home to paying guests

when her family is not in residence. She does this

using the name Aloha Bed & Breakfast. Aloha is not

a separate corporate entity; it is merely the trade

name Mrs. Young uses for her sole proprietorship.

Aloha has no independent existence, bank account, or

staff. App.78a, 85a, 116a–18a.

The family home is most Americans’ main asset,

which is certainly true for Mrs. Young. She uses that

asset to make ends meet in her retirement. Renting

out three spare bedrooms when her family is not using

them often provides the bulk of Mrs. Young’s income.

Without these rental profits, Mrs. Young could not

afford her monthly mortgage payments and would

likely be forced to leave the home in which she has

lived for four decades. App.95a, 116a.

Mrs. Young’s home sits on a quiet residential

street. Its 1,926 square feet consist of four bedrooms,

two and a half bathrooms, a family room, dining room,

living room, and kitchen. Guests are not confined to a

separate wing of the house but share all of the main

living spaces with Mrs. Young and her family. Given

the home’s layout, there is no other option. The three

guest bedrooms contain Mrs. Young’s personal items

and are also where her children and grandchildren

sleep on visits. App.85a, 95a.

Given the above, it was only natural for Mrs.

Young to treat her guests like family. Guests often

have meals with Mrs. Young and her husband, watch

movies with them, and go to the store with them.

Some guests even choose to participate in the weekly

Bible study that Mrs. Young hosts in her home.

Guests often use the personal computer located in

Mrs. Young’s bedroom to print boarding passes and

other documents. And guests’ children regularly play

with her grandchildren’s books and toys. App.95a.

Mrs. Young applies the same house rules to family

members and guests alike. Smoking is forbidden for

health reasons, and the only romantic partners

allowed to share a bedroom are a married man and

woman. Mrs. Young is a devout Christian who

believes that she is morally responsible for the sexual

activity that takes place under her roof. She will not

host anyone in a manner that violates her Catholic

faith. When her daughter came for overnights, Mrs.

Young required her to sleep in a separate bedroom

from her live-in boyfriend. App.82a–84a, 95a–96a.

Guests willing to abide by these house rules and

who can handle the stairs are welcome to stay with

Mrs. Young if they make a reservation of no less than

three days and send a deposit in advance. Mrs. Young

does not take walk-in guests. She meets scheduled

guests on arrival and provides them a key that grants

access to her entire home. App.78a, 83a, 95a–96a.

Mrs. Young hosts roughly between 100 and 200

guests each year. The vast majority are from out-ofstate. Many guests stay for weeks at a time. Although

nearly all of Mrs. Young’s guests stay less than a

month, a few have stayed five weeks or more.

App.83a–84a, 117a.

2. Mrs. Young’s Interaction with Ms.

Cervelli and Ms. Bufford

In 2007, Diane Cervelli and Taeko Bufford—two

women from California—contacted Mrs. Young about

renting a bedroom in her home for about a week to

visit a friend who lives nearby. Mrs. Young believes

in the Catholic Church’s teaching about sexuality and

marriage. So when Mrs. Young determined that Ms.

Cervelli and Ms. Bufford were romantic partners, she

explained that renting a bedroom to them would

violate her sincerely-held religious beliefs. Mrs.

Young made the couple aware that she applied the

same house rules to her own daughter and had no

animosity against them. She then called a nearby

friend who also rents rooms, found out the friend had

availability and would gladly host Ms. Cervelli and

Ms. Bufford, and referred the couple to her. App.75a,

81a–83a.

Mrs. Young is a licensed real-estate agent. She

was aware of Hawai`i’s “Mrs. Murphy exemption,”

which recognizes that those who rent up to four rooms

in their own home have the discretion to select renters

compatible with the owner’s lifestyle. 1 Haw. Rev.

Stat. § 515-4(a)(2) (2007). The Mrs. Murphy

exemption specifically provides that those who rent

“up to four rooms in a housing accommodation by an

individual if the individual resides therein” are

excluded from the real-property-transaction law,

App.65a, which prohibits certain types of

discrimination in “real estate transaction[s],”

App.64a. Mrs. Young explained to the couple that the

Mrs. Murphy exemption allowed her to rent bedrooms

in her own home in accordance with her religious

beliefs. App.70a–71a, 81a–82a. Nonetheless, Ms.

Cervelli and Ms. Bufford filed complaints with the

Hawai`i Civil Rights Commission that alleged Mrs.

Young violated Hawai`i’s public-accommodation law,

which bars “a place of public accommodation” from

discriminating based on “sexual orientation.” Haw.

Rev. Stat. § 489-3 (2007); App.61a.

B. Procedural Background

1. The Commission Proceedings

The Hawai`i Civil Rights Commission opened an

investigation and interviewed Mrs. Young in 2009.

Mrs. Young described how she referred Ms. Cervelli

and Ms. Bufford to a friend who also rents rooms in

her home nearby. The reason Mrs. Young gave was

purely religious: she testified that if her faith deems

activity sinful and she allows that activity to happen

in her home, she participates in the sin. Mrs. Young

1 For an explanation of the origins of the term “Mrs. Murphy

exemption,” see United States v. Space Hunters, Inc., 429 F.3d

416, 425 (2d Cir. 2005).

clarified that she applied the same moral standard to

her own daughter and that she had nothing against

the couple. She simply could not violate her faith and

explained her rationale, as well as the Mrs. Murphy

exemption’s safe harbor, to Ms. Bufford in detail. Mrs.

Young believed that after a long conversation airing

their views, she and the couple could agree to

disagree. App.81a–83a.

The Commission representative asked Mrs. Young

to describe the religious beliefs that motivated her

decision. Mrs. Young cited scripture in support of her

belief that she is morally responsible for the activity

that takes place in her family home. When the

Commission representative questioned whether she

still holds the religious beliefs that lead her to rent a

bedroom only to romantic partners consisting of a

married man and woman, Mrs. Young replied that

she hoped those beliefs were now stronger. App.84a.

In 2010, the Commission found reasonable cause

to believe that Mrs. Young violated Hawai`i’s publicaccommodation law by discriminating based on

sexual orientation. It predicated this finding on the

fact that Mrs. Young “and her husband are strong

Christians and that it would be against their belief

system to allow Complainant and her partner to stay

at their [home] as a couple.” App.86a. For this “crime,”

the Commission sought (a) actual, compensatory, and

punitive damages, (b) statutory penalties, (c) a cease

and desist order, (d) the development and

implementation of a written non-discrimination

policy posted on the walls of Mrs. Young’s home, and

(e) publishing the results of the Commission’s

investigation in the newspaper. App.86a–87a.

2. Trial Court Proceedings

Before the Commission proceedings went any

further, Ms. Cervelli and Ms. Bufford sought and

received from the Commission a right to sue letter. In

2011, they filed the present state-court action in

Hawai`i Circuit Court alleging that Mrs. Young

violated Hawai`i’s public-accommodation law and

seeking (1) a declaratory judgment, (2) a permanent

injunction, (3) actual compensatory, statutory, treble,

special, and punitive damages, (4) pre-judgment and

post-judgment interest, and (5) attorney fees and

costs. App.66a. The same day the couple filed their

Complaint, and before it was even served on Mrs.

Young, the Commission moved to intervene as a

plaintiff. The Circuit Court granted the Commission’s

motion and allowed it to adopt Ms. Cervelli’s and Ms.

Bufford’s complaint wholesale. App.53a–54a. The

Commission and the private plaintiffs afterward filed

combined briefs at every stage of the state

proceedings.

In 2013, the Circuit Court heard oral arguments

on the parties’ cross motions for summary judgment.

The Circuit Court refused to consider Mrs. Young’s

constitutional defenses, which she raised in her

interrogatory responses, Amended Answer, and

briefing. App.67a–69a, 72a–74a, 79a–80a, 88a–94a,

111a–15a, 119a–21a. Although Mrs. Young argued

that applying Hawai`i’s public-accommodation law to

her in these circumstances would violate her rights to

due process, equal protection, freedom of intimate

association, privacy, and free exercise, the Circuit

Court stated that it would rule on purely statutory

grounds, which it did. App.122a–23a.

Subsequently, the Circuit Court found no genuine

dispute of material fact, ruled that Hawai`i’s publicaccommodation law—not its real-property-transaction law—applied to Mrs. Young, determined that

Mrs. Young’s family home was a place of public

accommodation, and held that Mrs. Young violated

Hawai`i’s public-accommodation law by discriminating based on sexual orientation. The court ordered

Mrs. Young to rent bedrooms in her home to same-sex

couples immediately but put off awarding damages

until a later date. App.41a–44a.

The parties agreed that an interlocutory appeal of

the Circuit Court’s liability ruling was appropriate

and filed a stipulated application for appeal. Because

the Circuit Court agreed “that the question of

whether Chapter 489 or Chapter 515 of Hawaii

Revised Statutes applies is a controlling question of

law,” it granted the application and stayed the case.

App.47a–49a. On the parties’ stipulated motion, the

Circuit Court also stayed the deadline for the

Commission and the private plaintiffs to seek

attorney fees and costs awards against Mrs. Young

until all appeals were exhausted. App.51a–52a.

3. Appellate Court Proceedings

In 2013, Mrs. Young timely appealed the Circuit

Court’s ruling to the Hawai`i Court of Appeals and

argued—among other things—that (a) her family

home was not a place of public accommodation; (b) the

Mrs. Murphy exemption in the real-property

transaction law controlled; (c) applying Hawai`i’s

public-accommodation law would violate her rights to

due process, equal protection, freedom of intimate

association, privacy, and free exercise; and (d) the

Commission and private plaintiffs could not justify

applying the public-accommodation law under strict

scrutiny. App.124a–38a.

Four years after briefing was completed, the

Hawai`i Court of Appeals notified the parties that it

would decide the case without argument, despite the

weighty constitutional issues. Roughly 5 years after

Mrs. Young appealed the Circuit Court’s ruling, and

11 years after Mrs. Young spoke with Ms. Cervelli and

Ms. Bufford, the Hawai`i Court of Appeals issued a

published decision affirming the Circuit Court.

The Hawai`i Court of Appeals first held that Mrs.

Young’s family home of 40 years was a place of public

accommodation. App.15a–17a. Next, the court

reconciled Hawai`i’s public-accommodation law with

the Mrs. Murphy exemption in its real-propertytransaction law by holding—for the first time—that

the latter applied “only to longer-term living

arrangements” even though the term “rental” was

“not specifically defined.” App.21a. The court justified

this holding by reasoning that the sweeping publicaccommodation law was more “specific” than the Mrs.

Murphy exemption, even though that exception

speaks specifically to homeowners who rent a few

rooms in their private homes. App.23a. It did so based

on the fact that the Mrs. Murphy exemption did not

“specify[] the time period involved” for a rental “or

whether the provision of lodging to transient guests is

covered.” Id.

Despite admitting that the scope of Hawai`i’s Mrs.

Murphy exemption was unclear, App. 13a–24a, the

Hawai`i Court of Appeals refused to address Mrs.

Young’s due process or equal protection claims.

Although the court considered her remaining

constitutional arguments, it strangely required Mrs.

Young to prove them “beyond a reasonable doubt.”

App.25a (cleaned up). The court subsequently

rejected Mrs. Young’s privacy and intimateassociation arguments based primarily on its

previous conclusion that her family home of 40 years

was a place of public accommodation. App.25a–31a. It

then rebuffed Mrs. Young’s free-exercise claim via a

strict-scrutiny analysis that would uphold nearly any

application of Hawai`i’s public-accommodation law.

App.31a–36a.

In 2018, Mrs. Young filed an application for writ

of certiorari with the Hawai`i Supreme Court asking

it to enforce the Mrs. Murphy exemption’s plain text

and reject the Hawai`i Court of Appeal’s unprecedented reading of the real-property-transaction

statute, which is based on a new, non-textual, and

untenable distinction between short and long-term

stays. Mrs. Young continued to maintain that leaving

the ruling in place would violate her rights to due

process, equal protection, privacy, intimate association, and free exercise. App.139a–50a. But the

Hawai`i Supreme Court denied review without

comment. App.38a–40a.

REASONS FOR GRANTING THE WRIT

Hawai`i’s Mrs. Murphy exemption has long

protected those, like Mrs. Young, who rent a few

bedrooms in their own homes to make ends meet. Mrs.

Young explicitly relied on that provision in referring

Ms. Cervelli and Ms. Bufford to a friend because

allowing them to share a bedroom in her family home

was not compatible with her faith. Yet, at the

Commission’s urging, the Hawai`i Court of Appeals

reinterpreted the Mrs. Murphy exemption’s scope,

rendered it inapplicable to Mrs. Young and any

“short-term” renter (despite the lack of any basis for

that interpretation in the statutory text), and

subjected her to severe punishment, including

compensatory, treble, and punitive damages,

statutory fines, and ruinous attorney fees and costs.

This Court should grant the petition for two

reasons. First, Hawai`i law in 2007 gave Mrs. Young

no fair warning that her actions fell outside of the

Mrs. Murphy exemption’s scope. The Hawai`i Court of

Appeals did not reach that conclusion until 2018,

some 11 years later, and its holding was not

foreshadowed by prior Hawai`i precedent. An

essential element of procedural due process is fair

notice of the law’s demands.

This mandate is not limited to criminal laws but

applies strongly here because Hawai`i’s application of

its public-accommodation law to Mrs. Young’s home,

where she lives, is quasi-criminal, prohibitory, and

stigmatizing, and inhibits Mrs. Young’s exercise of

her constitutional rights to privacy, intimate

association, and free exercise. Hawai`i’s decision to

subject Mrs. Young to extreme punishment without

fair warning that her actions could violate state law

conflicts directly with this Court’s precedent,

including F.C.C. v. Fox Television Stations, Inc., 567

U.S. 239 (2012), and Gentile v. State Bar of Nevada,

501 U.S. 1030 (1991). It also conflicts with decisions

by the Second, Third, Fourth, Fifth, and D.C. Circuits.

Second, Hawai`i has construed and applied its law

in a manner that is hostile towards Mrs. Young’s

religious beliefs. The Commission led a statesponsored campaign to narrow the Mrs. Murphy

exemption, declare Mrs. Young’s family dwelling a

place of public accommodation, and punish Mrs.

Young for living out her Catholic faith in her own

home. Doing so required the Commission to devise an

interpretation of state law that is neither neutral nor

generally applicable and which leaves no room for the

protection of free-exercise rights. For almost 10 years,

the Commission has worked hand-in-hand with the

private plaintiffs to ensure that its view of Mrs.

Young’s religious beliefs prevailed, and that she

would be excluded from the public sphere. Such statesponsored religious hostility directly conflicts with

this Court’s rulings in Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), and

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Commission, 138 S. Ct. 1719 (2018). Certiorari is

warranted.

The Hawai`i Court of Appeals narrowed the

Mrs. Murphy exemption’s scope and

applied that novel reading to Mrs. Young

without fair warning, violating the Fourteenth Amendment’s Due Process Clause.

As this Court has frequently held, fair warning of

the law’s requirements is the most basic element of

procedural due process. Justice requires that citizens

have notice of what violates the law so that they can

avoid potential landmines that will deprive them of

life, liberty, or property. This notice requirement is so

fundamental to the rule of law that it applies to all

statutes. This principle takes on special force when

the government applies a public-accommodation law

to someone’s home—particularly when that law is

quasi-criminal, prohibitory, stigmatizing, and inhibits citizens’ exercise of their constitutional rights.

When Mrs. Young referred Ms. Cervelli and Ms.

Bufford to a friend over 10 years ago, she did so in

good-faith reliance on the Mrs. Murphy exemption.

Nothing in Hawai`i law at the time gave Mrs. Young

the slightest hint that her actions could be illegal. The

Hawai`i Court of Appeals even admitted that the Mrs.

Murphy exemption’s plain text could apply to Mrs.

Young. App.14a, 21a–24a. But the court then chose to

interpret that exception “narrowly” as covering only

“longer-term living arrangements”—a full decade

after the events underlying this case. App.21a. The

court then enforced this unprecedented reading of

Hawai`i law against Mrs. Young without any (let

alone fair) warning in violation of the Due Process

Clause and this Court’s precedent. App.22a–24a.

The Hawai`i

Court of Appeals’ ruling will

(1) cause Mrs. Young to stop renting rooms and likely

force her to leave her home of 40 years, and it will also

(2) subject her to compensatory, statutory, treble,

special, and punitive damages awards, and (3) force

her to pay ruinous attorney fees and costs for roughly

7 years of litigation. App.95a, 116a. It will, quite

likely, ruin Mrs. Young’s life. This Court should grant

review to enforce the Due Process Clause’s fair-notice

guarantee.

A. Due process requires that citizens have

fair warning of the law’s demands.

The Due Process Clause ensures that laws are

reasonably clear to everyday people. Fox Television,

567 U.S. at 253. Its central role is ensuring that

citizens have “fair notice of conduct that is forbidden

or required.” Id. The rule of law depends on the State

informing citizens “what [it] commands or forbids.”

Papachristou v. City of Jacksonville, 405 U.S. 156,

162 (1972) (cleaned up). Accordingly, this Court has

long barred a state from banning acts in vague terms

that force citizens to guess at their meaning. Connally

v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).

Our legal system is based on the premise that

citizens have the ability “to steer between lawful and

unlawful conduct.” Grayned v. City of Rockford, 408

U.S. 104, 108 (1972). But no such capacity exists

when citizens lack a reasonable opportunity to know

what is unlawful in advance. Connally, 269 U.S. at

393. In that circumstance, a vague law is no more

than “a trap for those who act in good faith.” United

States v. Ragen, 314 U.S. 513, 524 (1942). Punishing

a citizen so ensnared is unjust for at least three

reasons. Grayned, 408 U.S. at 108.

First, it is unfair to punish a citizen when she has

no way to know what the law demands. Kolender v.

Lawson, 461 U.S. 352, 361 (1983). Government must

tell regulated parties “what is required of them so

they may act accordingly.” Fox Television, 567 U.S. at

253. Otherwise, citizens are left to guess at the law’s

“contours,” Gentile, 501 U.S. at 1048, because no one

can identify with reasonable certainty “the

incriminating fact,” United States v. Williams, 553

U.S. 285, 306 (2008).

Here, Mrs. Young had no way to know that

declining to allow Ms. Cervelli and Ms. Bufford to

share a bedroom in her home and referring them to a

friend who was willing to do so would be judged—10

years later—to violate state law. Private family

homes are not places of “public accommodation.” And

Hawai`i’s Mrs. Murphy exemption specifically grants

those who rent a few rooms in their own homes legal

protection. Nonetheless, the State seeks to punish

Mrs. Young severely for relying on that exception.

Second, statutes open to widely different interpretations allow citizens to act on one understanding

of the law and courts on another. Connally, 269 U.S.

at 393. Courts may then apply an unprecedented

reading of the statute that citizens cannot reasonably

predict from the law’s text. United States v. Lanier,

520 U.S. 259, 266 (1997). This lulls citizens into a

“false sense of security,” because they have no reason

to expect that conduct seemingly outside of a law’s

scope will be “retroactively brought within it.” Bouie

v. City of Columbia, 378 U.S. 347, 352 (1964).

Mrs. Young based her actions on a plain reading of

the Mrs. Murphy exemption’s text in 2007. She could

not have guessed that the Hawai`i Court of Appeals

would construe that protection as applying only to

those who rent rooms for “longer term stays” and label

her rentals “short term” in 2018. App.21a–22a. Yet

the court applied this new reading to Mrs. Young

despite the fact that it was impossible for her to

predict the invention or result of such a novel (and

vague) test. Id. at 21a–24a.

Third, vague laws encourage arbitrary and

discriminatory enforcement. Fox Television, 567 U.S.

at 253. Because a vague law’s scope turns not on

words of “fixed meaning” but personal “impressions,”

Connally, 269 U.S. at 395, prosecutors and courts

have the opportunity to make things up, Sessions v.

Dimaya, 138 S. Ct. 1204, 1223-24 (2018) (Gorsuch, J.,

concurring in part and concurring in the judgment).

This opens the door to officials interpreting laws to

condemn those they disapprove without the

legislature ever balancing competing social values in

an intentional and highly-public way. Id. at 1227-28;

Whisenhunt v. Spradlin, 464 U.S. 965, 969 (1983)

(Brennan, J., dissenting from the denial of cert.).

The Commission vigorously pursued and the

Hawai`i Court of Appeals adopted an unprecedented

reading of Hawai`i law to deprive Mrs. Young of legal

protection without any clear guidance from the

Legislature as to how to reconcile the competing social

values at stake. And they did so based on the

unpopular nature of Mrs. Young’s religious beliefs.

Otherwise, the Commission and the Hawai`i Court of

Appeals would have recognized the injustice of

punishing Mrs. Young when she had no fair warning

that her actions could be unlawful. Neither did even

though both are state actors charged with fairly and

impartially administering the law.

B. The fair-warning requirement applies to

all laws but it has special force in regards

to the application of a quasi-criminal,

public-accommodations law to a person’s

home

that

prohibitory

and

stigmatizing, or which inhibits citizens’

exercise of their constitutional rights.

Some of this Court’s precedent addresses the Due

Process Clause’s fair-warning requirement exclusively in reference to criminal statutes. E.g.,

Williams, 553 U.S. at 304. But as Justice Gorsuch has

explained, this Court has long recognized “that a

stringent vagueness test should apply to at least some

civil laws,” Dimaya, 138 S. Ct. at 1228 (Gorsuch, J.,

concurring in part and concurring in the judgment)

(cleaned up), and that principle comports with

English and early American courts’ common practice,

id. at 1224-28.

This Court started applying vagueness doctrine to

civil laws at least 90 years ago. A.B. Small Co. v. Am.

Sugar Refining Co., 267 U.S. 233, 239 (1925). It has

not backtracked. E.g., Red Lion Broad. Co. v. F.C.C.,

395 U.S. 367, 395-96 (1969) (vagueness concerns

apply even to civil administrative regulations and

that agencies cannot impose sanctions without fair

warning); In re Ruffalo, 390 U.S. 544, 550-51 (1968)

(lack of fair warning that employing a particular

individual “would be considered a disbarment

offense” violated procedural due process and “would

never pass muster in any normal civil or criminal

litigation”) (cleaned up); Giaccio v. Pennsylvania, 382

U.S. 399, 402 (1966) (civil law that allowed “the

collection of costs” was subject to “challenge that it is

unconstitutionally vague” regardless of whether it

was labeled “‘penal’”).

The reason for requiring all statutes to give

citizens’ fair warning is simple: “Both liberty and

property are specifically protected by the Fourteenth

Amendment against any state deprivation which does

not meet the standards of due process, and this

protection is not to be avoided by the simple label a

State chooses to fasten upon its conduct or its

statute.” Giaccio, 382 U.S. at 402. Exactly how much

warning this Court requires depends not on the law’s

civil or criminal character, but on “the nature of the

enactment.” Barclays Bank PLC v. Franchise Tax Bd.

of Cal., 512 U.S. 298, 316 (1994) (cleaned up).

Perhaps this Court’s most thorough explanation of

the vagueness standard applicable to civil laws arose

in Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982). That case

concerned a village ordinance that, among other

things, made it illegal to sell drug paraphernalia

without a license. Id. at 491-92. In the course of

rejecting a store’s argument that the ordinance was

unconstitutionally vague, this Court recognized at

least two scenarios in which an ordinance that

“nominally imposes only civil penalties” is subject to

a strict vagueness test. Id. at 499.

First, a heightened vagueness standard applies

when civil laws are quasi-criminal, and have a

prohibitory and stigmatizing effect. Id.; accord Nat’l

Endowment for the Arts v. Finley, 524 U.S. 569, 589

(1998) (“prohibitory and stigmatizing effect of a quasicriminal ordinance [is] relevant to the vagueness

analysis”) (cleaned up).

Second, a stringent vagueness test applies when

civil laws impede citizens’ exercise of their

constitutional rights. Vill. of Hoffman Estates, 455

U.S. at 499; accord Colautti v. Franklin, 439 U.S. 379,

391 (1979) (fair warning is especially important

“where the uncertainty induced by the statute

threatens to inhibit the exercise of constitutionally

protected rights”); Grayned, 408 U.S. at 109 (fair

warning is critical when a law effects citizens’

exercise of their “basic First Amendment freedoms”).

C. Hawai`i’s novel application of its publicaccommodation law to Mrs. Young merits

a strict vagueness test.

Hawai`i’s novel application of its publicaccommodation law to Mrs. Young’s home merits a

strict vagueness test for both reasons stated in Village

of Hoffman Estates. The law is quasi-criminal and its

effects on Mrs. Young are prohibitory and

stigmatizing.

Just

important,

Hawai`i’s

unprecedented

application

its

publicaccommodation law to force Mrs. Young to rent

bedrooms in her home against Catholic teachings

inhibits the exercise of her rights to privacy, intimate

association, and free exercise.

1. Hawai`i’s public-accommodation law is

quasi-criminal and its effects on Mrs.

Young are both prohibitory and

stigmatizing.

Because Hawai`i’s application of its publicaccommodation law to Mrs. Young is quasi-criminal

and has prohibitory and stigmatizing effects, it

warrants a strict vagueness test. Village of Hoffman

Estates, 455 U.S. at 500. Yet the Hawai`i Courts

refused to conduct any vagueness inquiry at all.

Hawai`i law empowers the Commission to

regulate businesses and bring enforcement actions on

behalf of private citizens. Haw. Rev. Stat. § 368-3; see

also Finley, 524 U.S. at 588 (recognizing that

vagueness in “regulatory scheme[s]” is especially

concerning). The Commission exercises many

traditional powers of a court and has the authority—

alongside courts—to award “punitive damages.” Haw.

Rev. Stat. § 368-17(a); see Haw. Rev. Stat. § 368-5

(interfering with the Commission or intentionally

violating its orders can result in imprisonment for 90

days). Notably, Respondents seek punitive damages

in this case, App.66a, 87a, in addition to “threefold

damages” that litigants recover via statute, Haw. Rev.

Stat. § 489-7.5. Anyone Hawai`i deems to have run

afoul of its public-accommodations law must further

pay severe fines to the state of “not less than $500 nor

more than $10,000 for each violation.” Haw. Rev. Stat.

§ 489-8(b). Under this provision, “[e]ach day of

violation” constitutes “a separate violation.” Id.

It is difficult to imagine a state enforcement

scheme more quasi-criminal in nature. This Court has

long recognized that punitive damages and other

“‘private fines’ intended to punish the defendant and

to deter future wrongdoing” are quasi-criminal.

Cooper Indus., Inc. v. Leatherman Tool Gr., Inc., 532

U.S. 424, 432 (2001). Hawai`i imposes such punitive

and three-fold damages awards and punitive fines

against people like Mrs. Young specifically for

purposes of “retribution and deterrence.” Pac. Mut.

Life Ins. Co. v. Haslip, 499 U.S. 1, 19 (1991). These

punitive measures signal to society at large that Mrs.

Young is guilty of a particularly “malicious

deprivation[ ]” of Ms. Cervelli’s and Ms. Bufford’s

rights. Carey v. Piphus, 435 U.S. 247, 266 (1978).

Few people will risk renting bedrooms in their

family homes with such a Sword of Damocles. If

Respondents are successful, the judgments against

Mrs. Young will likely force her to sell her home of 40

years, and she will no longer have a dwelling large

enough to accommodate even her own family.

Hawai`i’s application of its public-accommodation law

to Mrs. Young thus has a strong prohibitory effect.

It is heavily stigmatizing too. Punitive damages

generally mean that a defendant engaged in

“intentional or malicious” wrongdoing or some other

form of “extreme conduct.” City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 267 (1981). When the

State forces a person pay punitive damages, the

public assumes they intentionally committed a grave

wrong. Memphis Cmty. Sch. Dist. v. Stachura, 477

U.S. 299, 306 n.9 (1986) (“The purpose of punitive

damages is to punish the defendant for his willful or

malicious conduct and to deter others from similar

behavior.”)

Additionally, when the State declares someone a

“discriminator,” heavy social stigma attaches

regardless of the legal punishment. Most people

assume that “discriminators” harbor animus towards

members of a protected class. Mijha Butcher, Using

Mediation to Remedy Civil Rights Violations When the

Defendant is Not an Intentional Perpetrator, 24

Hamline J. Pub. L. & Pol’y 225, 226 (2003).

2. Hawai`i’s application of its publicaccommodation law to Mrs. Young

inhibits the exercise of her rights to

privacy, intimate association, and the

free exercise of religion.

Hawai`i’s application of its public-accommodation

law also inhibits Mrs. Young’s exercise of her

constitutional rights to privacy, intimate association,

and the free exercise of religion. Vill. of Hoffman

Estates, 455 U.S. at 499 (“[T]he most important factor

affecting the clarity that the Constitution demands of

a law is whether it threatens to inhibit the exercise of

constitutionally protected rights.”).

“[O]ne of the most essential branches of English

liberty is the freedom of one’s house,” or “castle.”

Payton v. New York, 445 U.S. 573, 597 n.45 (1980)

(cleaned up). The Founders specially protected this

freedom from government intrusion in the Third,

Fourth, and Fifth Amendments. Griswold v.

Connecticut, 381 U.S. 479, 484 (1965). As a result, this

Court is highly protective of the “privacy of the

dwelling.” Wyman v. James, 400 U.S. 309, 316 (1971).

It has recognized that the home is a personal retreat

where citizens go for “tranquility,” Carey v. Brown,

447 U.S. 455, 471 (1980), and that citizens have the

right to satisfy their “intellectual and emotional

needs” at home without state interference, Stanley v.

Georgia, 394 U.S. 557, 565 (1969).

Forcing Mrs. Young to rent bedrooms in violation

of her religious beliefs destroys the peace and

tranquility she enjoys at home. It transforms her

family home of 40 years from a personal refuge into a

fixed and unrelenting burden on her conscience.

Frisby v. Schultz, 487 U.S. 474, 484 (1988). That is

precisely what Mrs. Young attempted to express to

Ms. Cervelli. App.5a.

Mrs. Young’s freedom of intimate association is

designed to protect against such an intrusion into her

private life. This Court has described “all details” in

the home as “intimate details.” Kyllo v. United States,

533 U.S. 27, 37 (2001). Mrs. Young’s decisions about

who shares all of the main living spaces of her home

are among the most intimate a citizen can make. Bd.

of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481

U.S. 537, 545 (1987). Hawai`i seeks to strip away Mrs.

Young’s freedom to decide when to form such “highly

personal relationships.” Roberts v. U.S. Jaycees, 468

U.S. 609, 618 (1984).

But as the Ninth Circuit has explained, unique

constitutional concerns arise when “two people [are]

sharing the same living space.” Fair Hous. Council of

San Fernando Valley v. Roommate.com, LLC, 666

F.3d 1216, 1220 (9th Cir. 2012). “Aside from

immediate family or a romantic partner, it’s hard to

imagine a relationship more intimate than that

between roommates, who share living rooms, dining

rooms, kitchens, [and] bathrooms . . . .” Id. at 1221.

Yet Hawai`i seeks to take away Mrs. Young’s right to

set house rules compatible with her faith. The State’s

campaign to force Mrs. Young to rent bedrooms in her

own home in a manner that conflicts with her

religious beliefs is a serious violation of her “privacy,

autonomy,” and peace of mind. Id.

No less than Mrs. Young’s right to live out her

religious beliefs in her own home is at stake. If the

Free Exercise Clause does not safeguard Mrs. Young’s

faith-based decisions about sleeping arrangements in

her family home, one wonders what it does protect.

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct 2751,

2785 (2014) (Kennedy, J., concurring) (free exercise is

essential to the dignity of those who strive “for a selfdefinition shaped by their religious precepts”).

In sum, Hawai`i has given Mrs. Young a stark

choice between (1) remaining true to her faith,

ceasing to rent three bedrooms in her home, and likely

losing her home of 40 years, or (2) renting bedrooms

in her home to make ends meet but in violation of her

religious beliefs. Applying Hawai`i’s publicaccommodation law in this way seriously inhibits

Mrs. Young’s exercise of her free-exercise rights.

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012, 2026 (2017) (Gorsuch, J., concurring)

(the First Amendment “guarantees the free exercise of

religion, not just the right to inward belief (or

status)”).

D. The Hawai`i Court of Appeals’ ruling

directly conflicts with this Court’s fairnotice decisions and those of the Second,

Third, Fourth, Fifth, and D.C. Circuits.

The Hawai`i Court of Appeals’ decision to punish

Mrs. Young under a new and unforeseeable

interpretation of Hawai`i law—a decade after she

spoke with Ms. Cervelli and Ms. Bufford—directly

conflicts with this Court’s fair-notice precedent and

rulings by the federal courts of appeals.

1. The Hawai`i Court of Appeals’ ruling

conflicts with this Court’s holdings in

Fox Television Stations and Gentile.

In Fox Television Stations, this Court addressed

the FCC’s censure of Fox and ABC for broadcasting

fleeting expletives and brief partial nudity. 567 U.S.

at 247-52. When the broadcasts occurred, FCC

guidance indicated that indecent material was

sanctionable only when it was dwelled-on or repeated.

Id. at 254. But, like Hawai`i, the FCC reinterpreted

the law and censured the broadcasters under a neverpreviously-announced rule. Id. at 247-52. This Court

explained that the FCC failed to provide persons of

ordinary intelligence with fair notice of what was

prohibited and held this application of the law invalid.

Id. at 254. Because the FCC failed to give the

networks “fair notice” prior to the broadcasts in

question, the Commission’s standards were vague as

applied, necessitating that this Court set aside the

Commission’s orders. Id. at 258.

Similarly, Gentile involved Nevada’s efforts to

discipline an attorney who gave a press conference

after his client was indicted. 501 U.S. at 1063.

Nevada’s professional-conduct rules forbid certain

pre-trial publicity but contained an exception

allowing attorneys to “state without elaboration the

general nature of the defense.” Id. at 1048 (cleaned

up). In good faith, the attorney believed that his

remarks complied with the exception. Id. at 1049-51.

But the Nevada Supreme Court later held that his

statements exceeded its safe harbor. Id. at 1050-51.

Absent a state court’s prior clarification of the

exemption’s scope, this Court held that the Nevada

rules failed to provide fair notice. Id. at 1048. “The

fact that Gentile was found in violation of the Rules

after studying them and making a conscious effort at

compliance demonstrates that Rule 177 creates a trap

for the wary as well as the unwary.” Id. at 1051.

Mrs. Young is not a media conglomerate or a

sophisticated lawyer. But she is a licensed real-estate

agent familiar with Hawai`i’s Mrs. Murphy

exemption, which facially protects citizens who rent

up to four rooms in their own homes. She referred Ms.

Cervelli and Ms. Bufford to a friend in good-faith

reliance on that exemption. Yet, just like in Fox

Television, the Hawai`i Court of Appeals

reinterpreted the law in Mrs. Young’s case and then

applied it to punish her with no forewarning. 567 U.S.

at 258. It took this course despite the fact that, as in

Gentile, Mrs. Young made a studied effort to comply

with the law. 501 U.S. at 1048-51. What this shows is

that Hawai`i’s public-accommodations law, as applied

to Mrs. Young, is a trap for the wary. Id. at 1051. The

Due Process Clause prevents states from

“unforeseeably and retroactively” narrowing an

exemption “by judicial construction” as the Hawai`i

Court of Appeals did here at the Commission’s

request. Bouie, 378 U.S. at 352.

2. The Hawai`i Court of Appeals’ ruling

conflicts with decisions by the Second,

Third, Fourth, Fifth, and D.C. Circuits.

Hawai`i courts apparently subject only criminal

statutes to fair-notice inquiries, which is presumably

why they refused to even address Mrs. Young’s dueprocess argument below. E.g., State v. Kalama, 8 P.3d

1224, 1228 (Haw. 2000) (due process requires “that a

penal statute state with reasonable clarity the act it

proscribes” and that “penal statutes . . . inform a

person of ordinary intelligence of what conduct is

prohibited”) (emphasis added).

This reasoning conflicts with decisions by the

Second, Third, Fourth, Fifth, and D.C. Circuits, which

recognize that a strict vagueness test applies when

civil laws exact significant penalties. E.g., Cnty. of

Suffolk v. First Am. Real Estate Sols., 261 F.3d 179,

195 (2d Cir. 2001) (“fair warning” is required “before

a criminal sanction or significant civil or

administrative penalty attaches”); F.T.C. v.

Wyndham Worldwide Corp., 799 F.3d 236, 250 (3d

Cir. 2015) (“The fair notice doctrine extends to civil

cases, particularly where a penalty is imposed.”);

United States v. Hoechst Celanese Corp., 128 F.3d

216, 224 (4th Cir. 1997) (“clear notice” is required

when “civil penalties are quasi-criminal” in nature)

(cleaned up); Ford Motor Co. v. Tex. Dep’t of Transp.,

264 F.3d 493, 508 (5th Cir. 2001) (“Civil statutes . . .

that contain quasi-criminal penalties may be subject

to the more stringent review afforded criminal

statutes.”); Gen. Elec. Co. v. U.S. E.P.A., 53 F.3d 1324,

1328-29 (D.C. Cir. 1995) (“[W]here the regulation is

not sufficiently clear to warn a party about what is

expected of it[] an agency may not . . . impos[e] civil or

criminal liability.”).

In a case indistinguishable from this one, the

Fourth Circuit invalidated penalties the EPA

imposed under the Clean Air Act because a company

“had reason to believe that its interpretation of [an]

exemption” would shield it from liability. Hoechst, 128

F.3d at 226. The company thus lacked “fair notice of

EPA’s broader interpretation” of its regulations. Id.

The D.C. Circuit likewise overruled fines the EPA

levied on a company under the Toxic Substances

Control Act because the agency’s interpretation of its

regulations was “so far from a reasonable person’s

understanding . . . that they could not have fairly

informed GE of the agency’s perspective.” Gen. Elec.,

53 F.3d at 1330.

If this case had been brought in federal court, Mrs.

Young would likely not be liable for punitive and

treble damages, statutory fines, and attorney fees and

costs regardless of the fact that Hawai`i’s publicaccommodation law is civil in nature. But Hawai`i

courts ignore such fair-notice violations altogether.

II. The Commission’s campaign against Mrs.

Young violates the Free Exercise Clause

under Lukumi and Masterpiece Cakeshop.

The Commission is charged with rooting out

discrimination based on religion as well as sexual

orientation. Haw. Rev. Stat. § 489-3. But it has long

prioritized the latter and opposed measures to protect

free-exercise rights. App.105a–10a. That led to the

Commission working in concert with private plaintiffs

in this case to ignore or constrict the Mrs. Murphy

exemption, label Mrs. Young’s family home of 40

years a place of public accommodation, and penalize

her severely. Such a state-sponsored campaign to

punish Mrs. Young for her religious beliefs about sex

and marriage conflicts directly with this Court’s

rulings in Lukumi and Masterpiece Cakeshop.

A. Lukumi bars the Commission from

gerrymandering Hawai`i law to punish

Mrs. Young for her religious beliefs.

The Free Exercise Clause’s purpose is to avoid

religious persecution and intolerance like that

Hawai`i has inflicted on Mrs. Young. Lukumi, 508

U.S. at 532. It forbids the State from gerrymandering

its law to “restrict practices because of their religious

motivation.” Id. at 533. But that is exactly what the

Commission has done by (1) working alongside

private plaintiffs to advance an unprecedented

interpretation of the Mrs. Murphy exemption that

leaves

Mrs.

Young

vulnerable

attack,

(2) convincing state courts to adopt it, and

(3) advocating for state courts to punish Mrs. Young

based on her religious beliefs without any prior

warning that her actions could be illegal.

There is nothing “subtle” or “covert” about the

Commission’s 10-year campaign to suppress Mrs.

Young’s religious beliefs about sex and marriage. Id.

at 534. The Commission officially labeled her

religious beliefs unlawful “discrimination” despite the

fact that Mrs. Young declines to rent bedrooms in her

family home to any romantic partners other than a

married man and women—Hawai`i’s only recognized

form of marriage in 2007. For this “crime” of being a

faithful Catholic, the Commission sought punitive

damages and statutory penalties that could cause

Mrs. Young to lose her home. App.86a–87a.

Brushing aside any concern that Mrs. Young

lacked fair notice, the Commission sought to penalize

her to the maximum extent of Hawai`i law. And it did

so despite the fact that a fair reading of the Mrs.

Murphy exemption protected Mrs. Young’s conduct

and she explicitly cited that provision in referring Ms.

Cervelli and Ms. Bufford to a friend who was happy

to host them in her home. App.70a–71a, 75a, 81a–

82a. Such “gratuitous restrictions” on Mrs. Young’s

ability to live out her faith demonstrates that

Hawai`i’s application of its public-accommodation law

is not religiously neutral. Lukumi, 508 U.S. at 538

(cleaned up).

The Commission’s novel interpretation of state

law also fails the generally-applicability test. Unable

to erase the Mrs. Murphy exemption from Hawai`i’s

statute books entirely, the Commission argued—and

the Hawai`i Court of Appeals agreed—that it applies

only to “longer-term” stays. App.21a. What this

means is that those like Mrs. Young who the State

deems to rent rooms in their home “short term” have

no right to select renters compatible with their

lifestyle, but those who rent rooms in their home

“long-term” do. Yet no relevant statute’s text contains

this short-vs.-long-term-stay distinction.

Such parsing is irrational in any case because

same-sex couples have a much stronger (not weaker)

interest in obtaining long-term housing close to work,

a sick relative, or college than they do accessing shortterm vacation rentals near a desirable beach. It also

treats homeowners who rent rooms long-versus-short

term differently for no particular reason.

What is certain is that Hawai`i “fail[s] to prohibit

nonreligious conduct that endangers” its interest in

preventing discrimination against same-sex couples

to a greater degree than Mrs. Young’s polite and

apologetic referral of Ms. Cervelli and Ms. Bufford to

a friend happy to host them. Lukumi, 508 U.S. at 543.

In fact, the only real-world benefit of the

Commission’s strained reading of Hawai`i law is that

it allows the State to selectively punish Mrs. Young

based “on conduct motivated” by her religious beliefs

while still letting others off scot-free. Id.; see also id.

at 542 (“[t]he Free Exercise Clause protects religious

observers against unequal treatment”) (cleaned up).

The State’s strict-scrutiny arguments are wrong

for similar reasons. The Commission and Hawai`i

Court of Appeals both argued that applying the

public-accommodation law to Mrs. Young (and

practically anyone else) satisfied strict scrutiny.

App.33a–36a. But laws that leave “appreciable

damage” to a supposedly vital interest do not serve a

compelling government interest. Lukumi, 508 U.S. at

547 (cleaned up). Hawai`i law does just that by

allowing those who rent rooms in their own homes

“longer term” to do whatever they like.

More narrowly-tailored options for guarding samesex couples also exist. The State could readily protect

the autonomy of all those who rent a few rooms in

their own homes under the Mrs. Murphy exemption,

which leaves hundreds of other rooms in hotels,

motels, and non-owner-occupied dwellings available.

At a bare minimum, the State could protect religious

objectors like Mrs. Young who show they harbor no

animosity towards same-sex couples by volunteering

to find them a room elsewhere.

B. Masterpiece Cakeshop demonstrates that

the Commission’s palpable hostility

towards Mrs. Young’s religious beliefs

violates her free-exercise rights.

The Commission’s nearly 10-year campaign to

punish Mrs. Young for her religious beliefs violates

the Free Exercise Clause. Masterpiece Cakeshop, 138

S. Ct. at 1724 (“religious hostility on the part of the

State itself” cannot factor into the balancing of free

exercise and LGBT rights). During this case

Respondents interrogated Mrs. Young about her

religious beliefs, criticized the Catholic Church’s

teaching about sex and marriage, and cited Mrs.

Young’s religious beliefs as a basis for punishing her

under an unprecedented reading of Hawai’i law. Id.

at 1729 (“inappropriate and dismissive comments”

from the Colorado Civil Rights Commission showed a

First Amendment violation); App.84a–86a, 96a–104a.

The Commission also encouraged state courts to

ignore or narrow the Mrs. Murphy exemption to

deprive Mrs. Young of legal protection. And it

persuaded those courts to disregard this case’s

ramifications for Mr. Young’s primary source of

income (i.e., renting rooms) and ability to keep her

family home of 40 years. App.95a, 116a. If that were

not enough, the Commission assured the Hawai`i

Supreme Court there was no need to ensure Mrs.

Young had fair warning that her actions could violate

state public-accommodations law.

Just as in Masterpiece Cakeshop, Mrs. Young’s

interaction with Ms. Cervelli and Ms. Bufford

occurred years before Hawai’i legalized same-sex

marriage or this Court ruled in either United States

v. Windsor, 570 U.S. 744 (2013), or Obergefell v.

Hodges, 135 S. Ct. 2584 (2015). 138 S. Ct. at 1728. The

Hawai`i Court of Appeals refused to resolve her case

until the cultural and legal winds shifted. After

waiting for roughly 5 years, it followed the

Commission’s lead, construed the Mrs. Murphy

exemption to deprive Mrs. Young of legal protection,

and ruled against her without oral argument. The

court did so even though Mrs. Young had no way of

anticipating such a radical change in law.

If this history shows anything, it is that the

Commission and Hawai’i courts gave insufficient

“consideration for [Mrs. Young’s] free exercise rights

and the dilemma [s]he faced.” Masterpiece Cakeshop,

138 S. Ct. at 1729. Mrs. Young believes that she is

spiritually accountable for what happens under her

roof, including sexual conduct. Hobby Lobby, 134 S.

Ct. at 2778 (recognizing such beliefs entail “a difficult

and important question of religion and moral

philosophy”); App.84a. A grandmother’s moral

concerns about the sexual relations taking place in

her home is a religious exercise “that gay persons

could recognize and accept without serious

diminishment to their own dignity and worth.”

Masterpiece Cakeshop, 138 S. Ct. at 1727. That is

particularly true here because Mrs. Young explained

to Ms. Cervelli and Ms. Bufford that she had nothing

against them personally and applied the same “house

rules” to her own family members. App.82a.

Yet the Commission invented an unprecedented

reading of Hawai’i law that permitted it to ignore the

Mrs. Murphy exemption and sit in judgment of Mrs.

Young’s religious beliefs. Id. at 1730. It then applied

a “negative normative” view of Mrs. Young’s faith-

based referral of Ms. Cervelli and Ms. Bufford to a

friend who rents rooms in the same area. Id. at 1731.

In so doing, the Commission told Mrs. Young that

Catholic teaching about sex and marriage is wrong,

although the State has no business declaring such

articles of faith “illegitimate.” Id. In the following 8

years the Commission has worked tirelessly to ensure

that Mrs. Young’s religious beliefs have no place in

the “public sphere or commercial domain” and that

she is “less than fully welcome” in the Hawai’i

community. Id. at 1729. This is precisely the sort of

religious hostility that Masterpiece Cakeshop forbids.

Nonetheless, the Commission cited this Court’s

Masterpiece Cakeshop decision to the Hawai`i

Supreme Court in support of its 10-year campaign to

punish Mrs. Young. It continues to discount the

harassment and hate mail that she has experienced

as a result of this case, or the real harm that

facilitating sex outside of marriage between a man

and a woman would do to Mrs. Young’s conscious,

personal integrity, and self-worth. App.104a The

Hawai`i Court of Appeals similarly failed to “carefully

consider [Mrs. Young’s] objections and to treat

respectfully the expression of [her] sincerely-held

religious beliefs” as Masterpiece Cakeshop requires.

Adorers of the Blood of Christ v. F.E.R.C., 897 F.3d

187, 197 n.10 (3d Cir. 2018); see App.14a–15a. Such

blatant disregard for Mrs. Young’s free exercise rights

is not fitting for state actors charged with the “solemn

responsibility of fair and neutral enforcement” of

Hawai`i law, including the protection of its religious

citizens. Masterpiece Cakeshop, 138 S. Ct. at 1729.

In sum, Masterpiece Cakeshop bars “subtle

departures from neutrality” and the State raising

“even slight suspicion” of religious hostility. Id. at

1731 (cleaned up). Yet the Commission’s actions show

outright hostility towards Mrs. Young’s religious

beliefs.

These circumstances warrant this Court’s review

or summary reversal. At a minimum, the Court

should grant, vacate, and remand for the Hawai`i

Court of Appeals court to reconsider its free-exercise

holding in light of Masterpiece Cakeshop, which this

Court handed down over three months after the Court

of Appeals ruled.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

L. JAMES HOCHBERG, JR.

Counsel of Record

700 Bishop Street,

Suite 2100

Honolulu, HI 96813

(808) 534-1514

jim@jameshochberglaw.com

SHAWN A. LUIZ

1132 Bishop Street,

Suite 1520

Honolulu, HI 96813

(808) 538-0500

Counsel for Petitioner

October 9, 2018

APPENDIX

APPENDIX TABLE OF CONTENTS

Hawai`i Intermediate Court of Appeals Opinion,

electronically filed February 23, 2018 ............... 1a

Hawai`i Supreme Court Order Rejecting

Application for Writ of Certiorari,

electronically filed July 10, 2018...................... 38a

Order Granting Plaintiffs’ and PlaintiffIntervenor’s Motion for Partial Summary

Judgment for Declaratory and Injunctive Relief

and Denying Defendant’s Motion for Summary

Judgment,

filed April 15, 2013 (ROA 1 1502-1504)............. 40a

Order Granting the Parties’ Stipulated

Application for Appeal from Interlocutory

Order,

filed May 9, 2013 (ROA 1517-1520) ................. 45a

Stipulation and Order Re Time to File Motion

for Attorneys’ Fees,

filed April 23, 2013 (ROA 1505-1506) .............. 50a

Order Granting Motion to Intervene,

filed January 31, 2012 (ROA 137-138)............. 53a

Judgment on Appeal,

electronically filed March 20, 2018 .................. 55a

ROA stands for the Record on Appeal, the original imaged

record of the First Circuit State of Hawai`i electronically filed in

the Intermediate Court of Appeals on July 11, 2013. ROA

citations reflect the PDF page numbers in this combined PDF

document.

iia

U.S. Const. amend I ............................................... 57a

U.S. Const. amend XIV, § 1 ................................... 57a

HRS § 368-17 Remedies ......................................... 58a

Excerpts from HRS § 489-2 (2007) Definitions ..... 60a

HRS § 489-3 (2007) Discriminatory practices

prohibition .............................................................. 61a

HRS § 489-8 Civil penalty ..................................... 62a

Excerpts from HRS § 515-2 (2007) Definitions ..... 63a

Excerpt

from

HRS

515-3

(2007)

Discriminatory practices ........................................ 64a

Excerpts from HRS § 515-4(a)(2) (2007)

Exemptions ............................................................. 65a

Excerpts from Complaint for Injunctive Relief,

Declaratory Relief, and Damages,

filed December 19, 2011 (ROA 33 and 34) ....... 66a

Excerpts from First Amended Answer and

Affirmative Defenses to Complaint Filed

December 19, 2011,

filed July 25, 2012 (ROA 361-363) ................... 67a

Excerpts from exhibits attached to Declaration

of Shawn A. Luiz in support of Defendant’s

Motion to Compel Plaintiffs Cervelli and

Bufford’s Responses to Defendant’s Discovery

Requests,

filed November 16, 2012 ................................... 70a

iiia

Exhibit 6 Plaintiff’s Responses and Specific

Objections to Defendant’s First Set of

Interrogatories to Plaintiff Taeko Bufford

(ROA 543) .......................................................... 70a

Exhibit 14 Defendant’s Responsive Pretrial

Statement (ROA 623-625) ................................ 72a

Excerpts from declarations attached to

Memorandum in Support of Plaintiffs and

Plaintiff-Intervenor’s

Motion

for

Partial

Summary Judgment and exhibits attached

thereto,

filed February 13, 2013 .................................... 75a

Declaration of Takeo Bufford (ROA 715) ......... 75a

Exhibit B to Declaration of Peter C. Renn –

Defendant’s Responses and Objections to

Plaintiffs and Plaintiff-Intervenor’s First Set

of Interrogatories (ROA 837-838, 839, and

841-842) ............................................................. 76a

Exhibit A to Declaration of Robin Wurtzel –

Hawai`i Civil Rights Commission Interview

of Phyllis Young (ROA 883, 884-885, 886887) .................................................................... 81a

Exhibit B to Declaration of Robin Wurtzel –

Hawai‘i Civil Rights Commission’s Notice of

Finding of Reasonable Cause to Believe That

Unlawful Discriminatory Practices Have

Been Committed [against Complainant

Diane Cervelli] (ROA 893, 894, and 895)......... 86a

iva

Excerpts from Defendant’s Memorandum in

Support of Motion for Summary Judgment;

Motion and declarations and exhibits attached

thereto,

filed February 20, 2013 .................................... 88a

Memorandum in Support of Defendant’s

Summary Judgment Motion (ROA 929-934) ... 88a

Declaration of Phyllis Young (ROA 937 and

938) .................................................................... 95a

Exhibit 5 to Declaration of Shawn A. Luiz –

Deposition of Phyllis A. Young Volume 2

(ROA 1007, 1010-1014, 1015-1017, 10181019, 1023, and 1024) ....................................... 96a

Exhibit 9 Testimony of Coral Wong Pietsch,

on House Bill 1715, H.D. 1 before the Senate

Committee on Judiciary and Hawaiian

Affairs before the Senate Committee on

Judiciary Affairs on March 23, 2005 (ROA

1092, 1094-1097, and 1099) ............................ 105a

Excerpts from Defendant’s Memorandum in

Opposition to Plaintiffs’ Motion for Summary

Judgment,

filed March 19, 2013 (ROA 1267-1270) .......... 111a

Excerpts from exhibit to Declaration of Jay S.

Handlin in support of Plaintiffs and PlaintiffIntervenor’s Opposition to Defendant’s Motion

for Summary Judgment,

filed March 19, 2013 ....................................... 116a

Exhibit A Deposition of Phyllis A. Young

Volume 1 (ROA 1362, 1388, and 1390) .......... 116a

Excerpts from Defendant Aloha Bed &

Breakfast’s Reply Memorandum to Plaintiffs’

and

Plaintiff-Intervenor’s

Opposition

Defendant’s Motion for Summary Judgment

filed March 19, 2013 (ROA 1482-1483) .......... 119a

Excerpts from Transcript of First Circuit Court

of Hawai`i’s March 28, 2013 Hearing on

1) Plaintiffs’ and Plaintiff-Intervenor’s Motion

for

Partial

Summary

Judgment

and

2) Defendant’s Motion for Summary Judgment,

electronically filed in the Intermediate Court

of Appeals on May 28, 2013 ............................ 122a

Excerpts from Opening Brief of DefendantAppellant Aloha Bed & Breakfast,

electronically filed in the Intermediate Court

of Appeals on September 20, 2013 ................. 124a

Excerpts from Reply Brief of DefendantAppellant Aloha Bed & Breakfast,

electronically filed in the Intermediate Court

of Appeals on December 23, 2013................... 133a

via

Excerpts from Application for Writ of Certiorari

to Review the February 23, 2018 Opinion of the

Intermediate Court of Appeals of the State of

Hawai`i and its March 20, 2018 Judgment on

Appeal,

filed in the Supreme Court of the State of

Hawai`i on May 18, 2018 ................................ 139a

Excerpts from Reply in Support of Application

for Writ of Certiorari to Review the February 23,

2018 Opinion of the Intermediate Court of

Appeals,

electronically filed in the Supreme Court of

the State of Hawai`i on June 22, 2018 ........... 146a

Electronically Filed

Intermediate Court of

Appeals

CAAP-13-0000806

23-FEB-2018

12:21 PM

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

---o0o--DIANE CERVELLI and TAEKO BUFFORD,

Plaintiffs-Appellees,

vs.

ALOHA BED & BREAKFAST,

a Hawai‘i sole proprietorship,

Defendant-Appellant,

and

WILLIAM D. HOSHIJO, as Executive Director

of the Hawai‘i Civil Rights Commission,

Plaintiff-Intervenor-Appellee.

NO. CAAP-13-0000806

APPEAL FROM THE CIRCUIT COURT

OF THE FIRST CIRCUIT

(CIVIL NO. 11-1-3103)

FEBRUARY 23, 2018

NAKAMURA, CHIEF JUDGE, and FUJISE and

REIFURTH, JJ.

OPINION OF THE COURT BY NAKAMURA, C.J.

Defendant-Appellant Aloha Bed & Breakfast

(Aloha B&B) is owned and operated by Phyllis Young

(Young) as a sole proprietorship. Aloha B&B provides

lodging to transient guests, averaging between one

hundred and two hundred customers per year.

Plaintiffs-Appellees Diane Cervelli (Cervelli) and

Taeko Bufford (Bufford) (collectively, Plaintiffs),

lesbian women in a committed relationship, planned

a trip to Hawai‘i and sought lodging with Aloha B&B.

Aloha B&B and Young refused to accommodate

Plaintiffs' request for lodging based solely on their

sexual orientation.

Plaintiffs filed a Complaint in the Circuit Court of

the First Circuit (Circuit Court) 1/ against Aloha B&B,

alleging

discriminatory

denial

public

accommodations in violation of Hawaii Revised

Statutes (HRS) Chapter 489. 2/ The Hawai‘i Civil

Rights Commission (HCRC) intervened in the case as

a plaintiff, after it had determined that there was

reasonable cause to believe that unlawful

discriminatory practices had occurred.

1/ The Honorable Edwin C. Nacino presided.

HRS Chapter 489 is entitled "Discrimination in Public

Accommodations." HRS § 489-3 (2008) provides:

Discriminatory practices prohibition. Unfair

discriminatory practices that deny, or attempt to deny, a

person the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, and accommodations of a

place of public accommodation on the basis of race, sex,

including gender identity or expression, sexual orientation,

color, religion, ancestry, or disability are prohibited.

Plaintiffs and the HCRC filed a partial motion for

summary judgment on the issues of liability and

injunctive relief, and Aloha B&B filed a competing

cross-motion for summary judgment. The Circuit

Court granted Plaintiffs and the HCRC's motion and

denied Aloha B&B's motion. The Circuit Court ruled

that Aloha B&B violated HRS § 489-3 by

discriminating against the Plaintiffs on the basis of

their sexual orientation. The Circuit Court also

enjoined Aloha B&B from "engaging in any practices

that operate to discriminate against same-sex couples

as customers."

On appeal, Aloha B&B argues that the Circuit

Court erred in ruling that it is liable for

discriminatory practices under HRS Chapter 489.

Aloha B&B maintains that because Aloha B&B

operates its business out of Young's residence, the

Circuit Court should have applied an exemption from

prohibited discriminatory practices in real property

transactions set forth in HRS Chapter 515 for the

rental of rooms by a resident. Alternatively, Aloha

B&B argues that the application of HRS Chapter 489

to prohibit discriminatory practices under the

circumstances of this case would violate Young's

constitutional rights. Based on these arguments,

Aloha B&B contends that the Circuit Court erred in

granting Plaintiffs and the HCRC's motion for partial

summary judgment and in denying Aloha B&B's

motion for summary judgment. We affirm.

BACKGROUND

Aloha B&B operates out of a four bedroom home

in the Mariner's Ridge section of Hawai‘i Kai, where

Young and her husband reside. Young operates Aloha

B&B as a sole proprietorship and offers three rooms

in her residence to guests for overnight lodging.

Rooms at Aloha B&B are offered at a nightly rate of

$80 to $100, and there is a three-night minimum

booking requirement. In addition to the nightly rate,

Aloha B&B charges and collects general excise taxes

from its customers as well as transient

accommodation taxes, which only providers of

transient accommodations are required to pay. Aloha

B&B remits these taxes to the State of Hawai‘i.

Aloha B&B does not offer rooms to customers for

use as a permanent residence, and Young never

describes herself as a landlord to her guests. Aloha

B&B averages one hundred to two hundred customers

per year. The median length of stay for Aloha B&B

customers is four to five days. The majority of

customers stay for less than a week, about 95 percent

or more stay for less than two weeks, and more than

99 percent stay for less than a month. In addition to

overnight lodging, customers at Aloha B&B are

provided breakfast, pool access, wireless internet

access, and other amenities. Almost all of Aloha B&B

customers, an estimated 99 percent, are travelers who

do not live in Hawai‘i.

Aloha B&B advertises its services to the general

public through its own website as well as through

multiple third-party websites. Aloha B&B's website,

freely accessible through the internet, provides a

phone number and email address for potential

customers to contact Aloha B&B, and it contains

graphics stating "Best Choice Hawaii Hotel" and

"Best Choice Oahu Hotels." Aloha B&B also

advertises through various bed-and-breakfast-related

websites to generate more business for itself,

including paying an annual fee of between $400 to

$500 to BedandBreakfast.com.

II.

Plaintiffs Cervelli and Bufford, two lesbian women

in a committed relationship, began planning a trip to

Hawai‘i to visit a friend. Plaintiffs, who resided in

California, wanted to stay near their friend, who lived

in Hawai‘i Kai. Cervelli emailed Aloha B&B to inquire

if a room was available for their planned trip. Young

responded by email the same day, stating that a room

was available for six days and providing instructions

on how to complete the reservation.

Two weeks later, Cervelli called Aloha B&B to

book the reservation and spoke with Young, who

indicated that the room was still available. While

Young was writing up the reservation, Cervelli

mentioned that she would be accompanied by another

woman named "Taeko." Young stopped and asked

whether Cervelli and her companion were lesbians.

When Cervelli said "yes," Young responded, "[W]e're

strong Christians. I'm very uncomfortable in

accepting the reservation from you." Young refused to

accept the reservation from Cervelli and terminated

the phone call by hanging up.

Cervelli called Bufford in tears and explained

what had happened. Bufford then called Young and

attempted to reserve a room, but Young again refused

to accept the reservation. Bufford asked Young if her

refusal was because Bufford and Cervelli were

lesbians, to which Young responded "yes." Bufford

had two phone conversations with Young that day.

Young referred to her religious beliefs in discussing

her refusal to provide a room to Plaintiffs. Apart from

Plaintiffs' sexual orientation, there was no other

reason for Young's refusal to accept Plaintiffs' request

for a room.

III.

Cervelli and Bufford each filed a complaint against

Aloha B&B with the HCRC alleging discrimination in

public accommodations on the basis of sexual

orientation. Young was interviewed during the

HCRC's investigation and was asked to describe the

religious beliefs that she claimed precluded her from

accepting Cervelli and Bufford's reservation. Young

stated that she is Catholic; that she believes that

homosexuality is wrong; that she believes that sexual

relations between same-sex couples (regardless of

whether they are legally married) are immoral; and

that she therefore refused to provide Cervelli and

Bufford with a room. The HCRC found that there was

reasonable cause to believe that Aloha B&B had

committed an unlawful discriminatory practice

against Cervelli and Bufford in violation of HRS §

489-3. The HCRC subsequently closed its cases based

on Cervelli's and Bufford's election to pursue a court

action, and it issued "right to sue" notices to Cervelli

and Bufford.

IV.

Plaintiffs subsequently filed in the Circuit Court a

Complaint for injunctive relief, declaratory relief, and

damages against Aloha B&B, alleging discrimination

on the basis of sexual orientation in violation of HRS

Chapter 489. The HCRC filed a motion to intervene

in the case as a plaintiff because it found the case was

one of "general importance" given the HCRC's mission

to eliminate discrimination. The Circuit Court

granted the HCRC's motion to intervene as a plaintiff.

Plaintiffs and the HCRC filed a motion for partial

summary judgment with respect to liability and

injunctive relief. 3/ Aloha B&B filed a cross-motion for

summary judgment.

The Circuit Court held a hearing on the parties

competing motions for summary judgment. At the

hearing, counsel for Aloha B&B acknowledged that

"discrimination is a horrible evil" and that "in places

of public accommodation discrimination is a horrible

evil." Aloha B&B's counsel also acknowledged that

Aloha B&B admits that it "does provide lodging to

transient guests." 4/ However, Aloha B&B's counsel

argued that the law prohibiting discrimination in

public accommodations, HRS Chapter 489, does not

apply to Aloha B&B because it uses Young's residence

to provide lodging to transient guests. Aloha B&B's

counsel argued that Aloha B&B's use of a residence

means that it is not a "place of public accommodation"

subject to the requirements of Chapter 489, but

instead is governed by HRS Chapter 515.

The Circuit Court granted Plaintiffs and the

HCRC's motion for partial summary judgment with

respect to liability and declaratory and injunctive

relief, and it denied Aloha B&B's cross-motion for

3/ The only claim for which Plaintiffs and the HCRC did not

seek summary judgment was the claim for damages in the

Complaint.

4/ As discussed infra, HRS § 489-2 defines "place of public

accommodation" to include "[a]n inn, hotel, motel, or other

establishment that provides lodging to transient guests[.]"

summary judgment as moot. In its Summary

Judgment Order, 5/ the Circuit Court found that:

[Aloha B&B] is governed by Chapter 489,

HRS, not Chapter 5151 HRS, and [Aloha B&B]

constitutes a place of public accommodation

under HRS § 489-2, because its goods, services,

facilities,

privileges,

advantages,

accommodations are extended, offered, sold, or

otherwise made available to the general public

as customers, clients, or visitors. [Aloha B&B]

also constitutes "[a]n inn, hotel, motel, or other

establishment that provides lodging to transient

guests" and "[a] facility providing services

relating to travel or transportation." HRS § 4892. [Aloha B&B] violated HRS § 489-3 by

discriminating against Plaintiffs Diane Cervelli

and Taeko Bufford on the basis of their sexual

orientation as lesbians.

(Certain brackets in original.) The Circuit Court

enjoined and prohibited "Defendant Aloha Bed &

Breakfast, a Hawai‘i sole proprietorship of Phyllis

Young," and its officers, agents, and employees "from

engaging in any practices that operate to discriminate

against same-sex couples as customers of Aloha Bed

& Breakfast[.]"

The Circuit Court entered its Summary Judgment

Order on April 15, 2013. The parties subsequently

submitted a stipulated application to file an

5/ The Circuit Court's Order was entitled "Order Granting

Plaintiffs' and (the HCRC's) Motion for Partial Summary

Judgment for Declaratory and Injunctive Relief and Denying

[Aloha B&B's] Motion for Summary Judgment," which we will

refer to as the "Summary Judgment Order."

interlocutory appeal from the Summary Judgment

Order, which the Circuit Court granted.

DISCUSSION

Aloha B&B argues that the Circuit Court erred in

ruling that it is liable for discriminatory practices

under HRS Chapter 489. Aloha B&B argues that it is

not subject to HRS Chapter 489, but that its activities

are governed by HRS Chapter 515. In particular,

Aloha B&B asserts that an exemption from prohibited

discriminatory practices in real property transactions

set forth in HRS § 515-4(a)(2) protects it from liability

in this case.

Plaintiffs and the HCRC, on the other hand, argue

that Aloha B&B is clearly a place of public

accommodation that is subject to HRS Chapter 489.

Plaintiffs and the HCRC argue that Aloha B&B

cannot "borrow" an exemption applicable to a

different law (HRS Chapter 515) to avoid liability for

violating the public accommodations law (HRS

Chapter 489) on which Plaintiffs seek relief. They also

argue that the HRS Chapter 515 exemption relied

upon by Aloha B&B only applies to long-term living

arrangements in which tenants are seeking

permanent housing, and not to the short-term

transient lodging provided by Aloha B&B to its

customers.

As explained below, we conclude that the Circuit

Court properly granted partial summary judgment in

favor of Plaintiffs and the HCRC.

10a

The statutory provisions relevant to this appeal

are as follows.

Plaintiffs' Complaint against Aloha B&B alleged

discrimination on the basis of sexual orientation in

public accommodations, in violation of HRS Chapter

489. HRS § 489-3 provides:

Unfair discriminatory practices that deny, or

attempt to deny, a person the full and equal

enjoyment of the goods, services, facilities,

privileges, advantages, and accommodations of

a place of public accommodation on the basis of

race, sex, including gender identity or

expression, sexual orientation, color, religion,

ancestry, or disability are prohibited.

HRS § 489-2 (2008) defines the terms "place of

public accommodation" and “sexual orientation" for

purposes of HRS Chapter 489, in relevant part, as

follows:

"Place of public accommodation" means a

business

accommodation,

refreshment,

entertainment, recreation, or transportation

facility of any kind whose goods, services,

facilities,

privileges,

advantages,

accommodations are extended, offered, sold,

or otherwise made available to the general

public as customers, clients, or visitors. By

way of example, but not of limitation, place

of public accommodation includes facilities of

the following types:

(1)

A facility providing services relating

to travel or transportation; [or]

11a

(2)

An inn, hotel, motel, or other

establishment that provides lodging

to transient guests;

....

"Sexual orientation" means having a

preference

for

heterosexuality,

homosexuality, or bisexuality, having a

history of any one or more of these

preferences, or being identified with any one

or more of these preferences.

Aloha B&B argues that its activities are governed

by HRS Chapter 515 and that it falls within the

exemption from prohibited discriminatory practices

set forth in HRS § 515- 4(a)(2). HRS § 515-3 (2006),

provides in relevant part:

It is a discriminatory practice for an

owner or any other person engaging in a real

estate transaction, or for a real estate broker

or salesperson, because of race, sex,

including gender identity or expression,

sexual orientation, color, religion, marital

status, familial status, ancestry disability,

age, or human immunodeficiency virus

infection:

(1)

To refuse to engage in a real estate

transaction with a person;

. . . . 6/

6/ HRS § 515-3 identifies numerous other actions related to

real estate

practice[s]."

transactions

that

6onstitute

"discriminatory

12a

HRS § 515-4(a)(2) (Supp. 2011) provides:

(a)

Section 515-3 does not apply:

...

(2)

To the rental of a room or up to four

rooms in a housing accommodation

by an owner or lessor if the owner or

lessor resides in the housing

accommodation. 7

HRS § 515-2 (2006) defines the terms "housing

accommodation," "real estate transaction" and "real

property" for purposes of HRS Chapter 515, in

relevant part, as follows:

"Housing accommodation" includes any

improved or unimproved real property, or

part thereof, which is used or occupied, or is

intended, arranged, or designed to be used or

occupied, as the home or residence of one or

more individuals.

7 At the time that Plaintiffs attempted to secure lodging with

Aloha B&B, HRS § Section 515-4(a)(2) (2006) provided:

(a) Section 515-3 does not apply:

...

(2) To the rental of a room or up to four rooms in a

housing accommodation by an individual if the

individual resides therein.

Although HRS § 515-4(a)(2) (2006) was subsequently

amended, the differences between the pre-amended and postamended statute are not material to our analysis in this case

because Young was an owner/resident. For simplicity, we refer

to the current version of the statute in our analysis.

....

13a

"Real estate transaction" includes the

sale, exchange rental, or lease of real

property.

"Real property" includes buildings,

structures, real estate, lands, tenements,

leaseholds, interests in real estate

cooperatives,

condominiums,

and

hereditaments, corporeal and incorporeal, or

any interest therein.

The definition of "sexual orientation" in HRS §

515-2 is identical to the definition in HRS § 489-2.

In rendering its decision, the Circuit Court

construed provisions of HRS Chapter 489 and HRS

Chapter 515. Statutory construction is a question of

law, which we review de novo under the right/wrong

standard. Lingle v. Hawai‘i Gov't Empls. Ass'n,

AFSCME, Local 152, AFL-CIO, 107 Hawai‘i 178, 183,

111 P.3d 587, 592 (2005). In interpreting a statute, we

are guided by the following well-established

principles:

When construing a statute, our foremost

obligation is to ascertain and give effect to the

intention of the legislature, which is to be

obtained primarily from the language contained

in the statute itself. And we must read statutory

language in the context of the entire statute and

construe it in a manner consistent with its

purpose.

14a

When there is doubt, doubleness of meaning, or

indistinctiveness or uncertainty of an expression

used in statute, an ambiguity exists.

In construing an ambiguous statute, the

meaning of the ambiguous words may be sought

by examining the context with which the

ambiguous words, phrases, and sentences may

be compared, in order to ascertain their true

meaning. Moreover, the courts may resort to

extrinsic aids in determining legislative intent.

One avenue is the use of legislative history as an

interpretive tool.

This court may also consider the reason and

spirit of the law, and the cause which induced

the legislature to enact it to discover its true

meaning. Laws in pari materia, or upon the

same subject matter, shall be construed with

reference to each other. What is clear in one

statute may be called upon in aid to explain

what is doubtful in another.

Haole v. State, 111 Hawai‘i 144, 149-50, 140 P.3d 377,

382-83 (2006) (block quote format altered; citation

and brackets omitted).

Having identified the statutory provisions at issue

and the established principles for statutory

interpretation, we proceed to consider the parties'

statutory interpretation claims. We conclude that the

Circuit Court properly ruled that there are no

material facts in dispute and that Aloha B&B violated

HRS § 489-3 by discriminating against Plaintiffs on

the basis of their sexual orientation.

15a

HRS § 489-3 prohibits "[u]nfair discriminatory

practices that deny, or attempt to deny, a person the

full and equal enjoyment of the goods, services,

facilities,

privileges,

advantages,

and

accommodations of a place of public accommodation

on the basis of . . . sexual orientation . . . ." Aloha B&B

admitted that the sole reason it refused to provide

lodging to Plaintiffs was because of their sexual

orientation. Young testified in her deposition that

there was no other reason for Aloha B&B's refusal.

It is also clear based on the plain statutory

language that Aloha B&B is a "place of public

accommodation." That term is defined by HRS § 4892 to mean "a business, accommodation, . . . recreation,

or transportation facility of any kind whose goods,

services, facilities, . . . or accommodations are

extended, offered, sold, or otherwise made available

to the general public as customers, clients, or

visitors." Aloha B&B admitted in its responsive

pretrial statement that "it offers bed and breakfast

services to the general public." The evidence

presented by Plaintiffs and the HCRC supports this

admission. The evidence showed that Aloha B&B

advertises and offers its services to the general public

through its own website as well as through multiple

third-party websites that are freely accessible over

the internet; it makes its services available to a large

number of customers, an average of between one

hundred and two hundred per year; and aside from

same-sex couples and smokers, it generally accepts

anyone as a customer as long as the person is willing

to pay and a room is available.

More importantly, the statutory definition of

"place of public accommodation" specifically includes,

16a

"[b]y way of example, but not of limitation," "[a]n inn,

hotel, motel, or other establishment that provides

lodging to transient guests [.]" HRS § 489-2 (emphasis

added). Aloha B&B admitted that it "does provide

lodging to transient guests." The undisputed evidence

showed that Aloha B&B customers only stay for short

periods of time -- the majority for less than a week and

about 95 percent for less than two weeks. Aloha B&B

does not offer rooms to customers for permanent

housing or for use as a residence, and Young does not

view herself as the landlord of the guests. In addition,

Aloha B&B collects from its customers, and pays to

the State, a transient accommodation tax, which only

providers of transient accommodations are required

to pay.

Based on Aloha B&B’s own admissions as well as

the undisputed evidence, we conclude that Aloha

B&B falls squarely within the statutory definition of

"place of public accommodation" as an "establishment

that provides lodging to transient guests[.]" Our

conclusion is bolstered by the stated purpose of HRS

Chapter 489 and the Legislature's directive on how it

should be construed. HRS § 489-l(a) (2006) states that

the purpose of HRS Chapter 489 "is to protect the

interests, rights, and privileges of all persons within

the State with regard to access and use of public

accommodations

prohibiting

unfair

discrimination." HRS § 489-1(b) (2006) then directs

that HRS Chapter 489 "shall be liberally construed to

further" these purposes.

When the plain language of the statutory

definition of "place of public accommodation" is

liberally construed to further the anti-discrimination

purposes of HRS Chapter 489, it reinforces our firm

17a

conclusion that Aloha B&B is a place of public

accommodation. We conclude that the Circuit Court

correctly ruled that Aloha B&B constitutes a place of

public accommodation that is subject to HRS Chapter

489. It is undisputed that Aloha B&B refused to

provide Plaintiffs with lodging on the basis of their

sexual orientation. Therefore, we affirm the Circuit

Court's determination that Aloha B&B violated HRS

§ 489-3 by discriminating against Plaintiffs on the

basis of their sexual orientation. 8/

In arguing that its actions were not prohibited by

HRS 489-3, Aloha B&B relies on an exemption

applicable to a different law, HRS Chapter 515, a law

which generally prohibits discrimination in real

property transactions. In particular, Aloha B&B

relies on the exemption set forth in HRS § 515-4(a)(i),

a so-called "Mrs. Murphy" exemption. 9/ HRS § 5154(a)(2) provides that the prohibitions in HRS § 515-3

against discrimination in real estate transactions do

not apply "[t]o the rental of up to four rooms in a

housing accommodation by an owner or lessor if the

Because we conclude that Aloha B&B falls within the

statutory definition of "place of public accommodation" as "an

establishment that provides lodging to transient guests," we

need not address whether the Circuit Court was correct in

determining that Aloha B&B also constitutes a place of public

accommodation as "[a] facility providing services relating to

travel or transportation." See HRS § 489-2.

9/ "Mrs. Murphy" was a hypothetical widow running a

boarding house, whose circumstances were first cited in the

1960s to argue that a person renting a small number of rooms in

the person's residence should be exempted from laws prohibiting

discrimination.

18a

owner or lessor resides in the housing

accommodation." Aloha B&B argues that the HRS §

515-4(a)(2) exemption supersedes the prohibition

against discrimination set forth in HRS § 489-3 and

therefore authorized its discriminatory conduct in

this case. We disagree.

In analyzing Aloha B&B's argument, we begin by

focusing on our "foremost obligation . . . to ascertain

and give effect" to the Legislature's intent in enacting

the statutory provisions. As noted, through HRS §

489-1, the Legislature mandated that HRS Chapter

489 shall be liberally construed to further its purposes

of protecting people's rights to access and to use public

accommodations

prohibiting

unfair

discrimination. HRS Chapter 515 is also directed at

prohibiting discrimination and "shall be construed

according to the fair import of its terms and shall be

liberally construed." HRS § 515-1 (2006).

By providing remedies for discrimination and the

injuries caused by discrimination, HRS Chapter 489

and HRS Chapter 515 are remedial statutes. 10/

Remedial statutes are liberally construed to suppress

the perceived evil and advance the enacted remedy."

Flores v. United Air Lines. Inc., 70 Haw. 1, 12, 757

P.2d 641, 647 (1988) (internal quotation marks,

citation, and brackets omitted). In addition,

"exceptions to a remedial statue should be narrowly

10/ See Flores v. United Air Lines, Inc., 70 Haw. 1, 12 n.8, 757

P.2d 641, 647 n.8 (1988) ("Generally, remedial statutes are those

which provide a remedy, or improve or facilitate remedies

already existing for the enforcement of rights and the redress of

injuries." (internal quotation marks and citation omitted)).

19a

construed[.]" EEOC v. Borden's. Inc., 551 F.Supp.

1095, 1110 (D. Ariz. 1982); see State v. Russell, 62

Haw. 474, 479-80, 617 P.2d 84, 88 (1980) ("The

importation of exceptions into statutes properly

affected with a public interest is not lightly to be

made. . . . It is a well settled rule of statutory

construction that exceptions to legislative enactments

must be strictly construed."); United States v.

Columbus Country Club, 915 F.2d 877, 883 (1990)

(construing exemptions to federal Fair Housing Act

narrowly). Accordingly, we liberally construe the

scope of the protection against discrimination

provided by HRS Chapter 489, and we narrowly or

strictly construe the scope of the exemption from

prohibited discrimination provided by HRS § 5154(a)(2).

The Hawai‘i Legislature's actions in omitting a

"Mrs. Murphy" exemption when it enacted HRS

Chapter 489 indicates its intent that no such

exemption would apply to discrimination in public

accommodations and the type of conduct engaged in

by Aloha B&B in this case. The "Mrs. Murphy"

exemption in HRS Chapter 515 was enacted in 1967.

See 1967 Haw. Sess. Laws Act 193, § 4 at 196. Almost

twenty years later, the Hawai‘i Legislature enacted

HRS Chapter 489, which was patterned after the

public accommodation provisions of the federal 1964

Civil Rights Act. See State v. Hoshijo ex rel. White,

102 Hawai‘i 307, 317-18, 76 P.3d 550, 560 (2003). The

federal public accommodation provisions contain the

"Mrs. Murphy" exemption in the provision defining a

"place of public accommodation" to include an

"establishment which provides lodging to transient

guests[.]" See 42 U.S.C. § 2000a(b)(1). Although the

20a

corresponding Hawai‘i provision adopts portions of

the federal provision word for word, the "Mrs.

Murphy" exemption is conspicuously omitted from the

Hawai‘i provision.

A side by side comparison of the two provisions is

a follows:

Hawai‘i Public

Accommodations Law

Federal Public

Accommodation Law

HRS § 489-2 defines a

“place of public

accommodation” to

include:

42 U.S.C § 2000a(b)(1)

defines a “place of

public accommodation”

to include:

“An inn, hotel, motel, or

other establishment

that provides lodging to

transient guests [.]”

“[A]ny inn, hotel, motel,

or other establishment

which provides lodging

to transient guests,

other than an

establishment located

within a building which

contains not more than

five rooms for rent or

hire and which is

actually occupied by the

proprietor of such

establishment as his

residence [.]”

We conclude that the Hawai‘i Legislature's

omission of the "Mrs. Murphy" exemption in enacting

HRS Chapter 489 provides persuasive evidence that

it did not intend such an exemption to apply to

establishments, like Aloha B&B, that provide lodging

21a

to transient guests. We also conclude that Congress'

inclusion of the "Mrs. Murphy" exemption is

instructive, for it demonstrates that Congress

believed that a person's residence may constitute a

"place of public accommodation" as an "establishment

which provides lodging to transient guests." If a

person's residence could not constitute a place of

public accommodation, then the "Mrs. Murphy"

exemption would not be necessary in the federal

public accommodation provision. Congress' inclusion

of the "Mrs. Murphy" exemption in the federal public

accommodation law supports our conclusion that a

place of public accommodation includes a bed and

breakfast business, like Aloha B&B, that uses the

proprietor's residence to provide lodging to transient

guests.

Contrary to Aloha B&B, we do not view HRS

Chapter 489 and HRS § 515-4(a)(2) to be in

irreconcilable conflict. In this regard, we note that the

term "rental" as used in HRS § 515-4(a)(2) is not

specifically defined. Also, because HRS § 515-4(a)(2)

is an exception to a remedial statute, we construe it

narrowly. We conclude that it is possible to reconcile

HRS Chapter 489 and HRS § 515-4(a)(2) by

construing the phrase "rental of a room" for purposes

of HRS § 515-4(a)(2) to exclude short-term lodging

provided to transient guests covered by HRS Chapter

489 and as applying only to longer-term living

arrangements where more permanent housing is

sought. Such a construction would be consistent with

the manner in which the Legislature h.as

characterized the "Mrs. Murphy" exemption set forth

in HRS § 515-4(a)(2).

22a

In enacting the HRS § 515-4(a)(2) exemption in

1967, the Legislature referred to it as the "tight

living" exemption. See H. Stand. Comm. Rep. No. 874,

in 1967 House Journal, at 819. Furthermore, in

amending HRS Chapter 515 in 2005 to add sexual

orientation to the types of discrimination precluded

by HRS § 515-3, the Legislature described the "Mrs.

Murphy" exemption set forth in HRS 515-4(a)(2) as

follows: "Housing laws presently permit landlords to

follow their individual value systems in selecting

tenants to live in the landlords' own homes[.]" 2005

Haw. Sess. Laws Act 214, § 1 at 688 (emphasis added).

This characterization of the "Mrs. Murphy"

exemption indicates that the Legislature understood

the exemption to apply to longer-term living or

housing arrangements -- where a landlord-tenant

relationship would be established. See State v.

Sullivan, 97 Hawai‘i 259, 266, 36 P.3d 803, 810 (2001)

("ௗ'[S]ubsequent legislative history or amendments'

may be examined in order to confirm our

interpretation of statutory provisions." (citation

omitted)).

Here, Aloha B&B admitted that it provides

lodging to transient guests and that no landlordtenant relationship is established during the guests'

short-term stays. Construing the phrase "rental of a

room" for purposes of HRS § 515-4(a)(2) to exclude

short-term lodging provided to transient guests and

as applying only to longer-term living arrangements

would serve the Legislature's purposes for enacting

both HRS Chapter 489 and HRS § 515-4(a)(2). It

would advance the Legislature's goal of prohibiting

discrimination in public accommodations, while

permitting landlords "to follow their individual value

23a

systems" in selecting a tenant who will reside with

them on a longer-term basis in their own homes. This

construction would also avoid any irreconcilable

conflict between HRS Chapter 489 and HRS § 5154(a)(2). See State v. Vallesteros, 84 Hawai‘i 295, 303,

933 P.2d 632, 640 (1997) ("[W]here the statutes

simply overlap in their application, effect will be given

to both if possible, as repeal by implication is

disfavored." (block quote format and citation

omitted)).

But even if there were an irreconcilable conflict

between HRS Chapter 489 and HRS § 515-4(a)(2), we

conclude that Chapter 489 would control as it is the

more specific statute with respect to Aloha B&B and

Aloha B&B's actions that are at issue in this case. See

id. ("[W]here there is a 'plainly irreconcilable' conflict

between a general and a specific statute concerning

the same subject matter, the specific will be favored."

(block quote format and citation omitted)). The plain

language of HRS Chapter 489 specifically applies to

and governs an "establishment that provides lodging

to transient guests." See HRS § 489-2. This language

perfectly describes Aloha B&B. HRS Chapter 489 also

directly addresses the precise conduct at issue in this

case -- the discriminatory refusal by a public

accommodation establishment to provide lodging to

transient guests based on their sexual orientation.

See HRS § 489-3. HRS § 515-4(a)(2), on the other

hand, applies more generally to the "rental of rooms,"

without specifying the time period involved or

whether the provision of lodging to transient guests is

covered. We conclude that HRS Chapter 489 is the

24a

more specific statute regarding the subject matter of

this case. 11/

II.

We now turn to address Aloha B&B's

constitutional claims. Aloha B&B contends that the

application of HRS Chapter 489 to its conduct in this

case would violate Young's constitutional rights to

privacy, intimate association, and free exercise of

religion. We disagree.

We review "questions of constitutional law de

novo, under the right/wrong standard," and we

Contrary to Aloha B&B's contention, the doctrine of

ejusdem generis does not support its claim that it falls outside

the definition of a "place of public accommodation." See

Richardson v. City and County of Honolulu, 76 Hawai‘i 46, 74,

868 P.2d 1193, 1221 (1994) (Klein, J., dissenting) (describing the

doctrine of ejusdem generis to mean: "[W]here words of general

description follow the enumeration of certain things, those words

are restricted in their meaning to objects of like kind and

character with those specified."). The doctrine is inapplicable

where the statute's plain meaning is apparent or where applying

the ejusdem generis rule would conflict with other, clearer

indications of the Legislature's intent. United States v. West,

671 F.3d 1195, 1199 (10th Cir. 2012); Leslie Salt Co. v. United

States, 896 F.2d 354, 359 (9th Cir. 1990). As we have concluded,

the plain language of HRS Chapter 489 and the Legislature's

directive that it be liberally construed to further its antidiscrimination purposes clearly establishes that Aloha B&B falls

within the definition of a "place of public accommodation." In any

event, Aloha B&B’s claim that the ejusdem generis doctrine

supports its claim because a bed and breakfast operates out of a

residence while an inn, hotel, and motel do not is without merit.

The trait that unifies the items in the list is set forth in the

statutory definition itself -- establishments "that provide[ௗ]

lodging to transient guest." It is undisputed that Aloha B&B

possesses this unifying trait.

11/

25a

"answer questions of constitutional law by exercising

[our] own independent judgment based on the facts of

the case. Malahoff v. Saito, 111 Hawai‘i 168, 181, 140

P.3d 401, 414 (2006) (citation and brackets omitted).

"[E]very enactment of the [Hawai‘i] [L]egislature is

presumptively constitutional, and a party challenging

the statute has the burden of showing [the alleged]

unconstitutionality beyond a reasonable doubt." State

v. Mueller, 66 Haw. 616, 627, 671 P.2d 1351, 1358

(1983). The alleged constitutional violation "should be

plain,

clear,

manifest,

and

unmistakable."

Kaho‘ohanohano v. State, 114 Hawai‘i 302, 339, 162

P.3d 696, 733 (2007).

Aloha B&B argues that applying HRS Chapter

489 to prohibit it from discriminating against

Plaintiffs and others based on their sexual orientation

violates Young's right to privacy. We disagree.

The "evil of unequal treatment, which is the injury

to an individual's sense of self-worth and personal

integrity" is "the chief harm resulting from the

practice of discrimination by establishments serving

the general public." King v. Greyhound Lines Inc., 656

P.2d 349, 352 (Or. Ct. App. 1982), cited in Hoshijo ex

rel. White, 102 Hawai‘i at 317 n.22, 76 P.3d at 560

n.22. Unfair discriminatory practices in general, and

such practices in places of public accommodation in

particular, "deprive[ௗ] persons of their individual

dignity and den[y] society the benefits of wide

participation in political, economic, and cultural life."

Roberts v. United States Jaycees, 468 U.S. 609, 625

(1984).

26a

Hawai‘i has a compelling state interest in

prohibiting discrimination in public accommodations.

"[A]cts of invidious discrimination in the distribution

of publicly available goods, services, and other

advantages cause unique evils that government has a

compelling interest to prevent[.]" Id. at 628. A State's

interest in assuring equal access is not "limited to the

provision of purely tangible goods and services," and

a State has broad authority to create rights of public

access. Id. at 625.

Aloha B&B argues that the right to privacy is "the

right to be left alone." However, to the extent that

Young has chosen to operate her bed and breakfast

business from her home, she has voluntarily given up

the right to be left alone. In choosing to operate Aloha

B&B from her home, Young, for commercial purposes,

has opened up her home to over one hundred

customers per year, charging them money for access

to her home. Indeed, the success of Aloha B&B's

business and its profits depend on members of the

general public entering Young's home as customers.

In other words, the success of Aloha B&B’s business

requires that Young not be left alone.

Aloha B&B also argues that the right to privacy

has special force in a person's own home. However,

given Young's choice to use her home for business

purposes as a place of public accommodation, it is no

longer a purely private home. "The more an owner, for

[her] advantage, opens [her] property for use by the

public in general, the more do [her] rights become

circumscribed by the statutory and constitutional

rights of those who use it." State v. Viglielmo, 105

Hawai‘i 197, 206, 95 P.3d 952, 961 (2004) (internal

quotation marks and citation omitted). In addition,

27a

the State retains the right to regulate activities

occurring in a home where others are harmed or likely

to be harmed. See State v. Kam, 69 Haw. 483, 492,

748 P.2d 372, 378 (1988); Mueller, 66 Haw. at 618-19,

628, 671 P.2d at 1353-54, 1359 (finding no privacy

right to engage in prostitution in one's home). Aloha

B&B's discriminatory conduct caused direct harm to

Plaintiffs and threatens to harm other members of the

general public.

The privacy right implicated by this case is not the

right to exclude others from a purely private home,

but rather the right of a business owner using her

home as a place of public accommodation to use

invidious discrimination to choose which customers

the business will serve. "The Constitution does not

guarantee a right to choose employees, customers,

suppliers, or those with whom one engages in simple

commercial transactions, without restraint from the

State." Roberts, 468 U.S. at 634 (O'Connor, J.,

concurring). We conclude that Young's asserted right

to privacy did not entitle her to refuse to provide

Plaintiffs with lodging based on their sexual

orientation and that the application of HRS Chapter

489 to prohibit such discriminatory conduct does not

violate her right to privacy. See Mueller, 66 Haw. at

618-19, 628, 671 P.2d at 1353-54, 1359.

Aloha B&B claims that applying HRS Chapter 489

to prohibit it from denying accommodations to

Plaintiffs and others based on their sexual orientation

violates Young's constitutionally protected right to

intimate association. We disagree.

28a

In recognizing the constitutional right of intimate

association, the Supreme Court "has concluded that

choices to enter into and maintain certain intimate

human relationships must be secured against undue

intrusion by the State because of the role of such

relationships in safeguarding the individual freedom

that is central to our constitutional scheme." Roberts,

468 U.S. at 617-18. "[C]ertain kinds of personal bonds

have played a critical role in the culture and

traditions of the Nation by cultivating and

transmitting shared ideals and beliefs[.]" Id. at 61819. The right of intimate association protects family

relationships

and

similar

highly

personal

relationships, which "by their nature, involve deep

attachments and commitments to the necessarily few

other individuals with whom one shares not only a

special community of thoughts, experiences, and

beliefs but also distinctively personal aspects of one's

life." Id. at 619-20. The protected relationships "are

distinguished by such attributes as relative

smallness, a high degree of selectivity in decisions to

begin and maintain the affiliation, and seclusion from

others in critical aspects of the relationship." Id. at

620. Conversely, an association lacking these

qualities, "such as a large business enterprise," are

not protected. Id.

The Supreme Court specifically referred to family

relationships to exemplify and to suggest limitations

on the kinds of relationships entitled to constitutional

protection. Id. at 619. The factors relevant for a court

to consider in determining whether a particular

relationship is entitled to protection are "the group's

size, its congeniality, its duration, the purposes for

which it was formed, and the selectivity in choosing

29a

participants." IDK, Inc. v. Clark County, 836 F.2d

1185, 1193 (9th Cir. 1988) .

Considering these factors, we conclude that

applying HRS Chapter 489 to Aloha B&B does not

violate Young's right to intimate association. The

relationship between Aloha B&B and the customers

to whom it provides transient lodging is not the type

of intimate relationship that is entitled to

constitutional protection against a law designed to

prohibit discrimination in public accommodations.

With respect to the group's size, Aloha B&B

provides transient lodging to between one hundred

and two hundred customers per year. Aloha B&B has

accommodated customers in up to three rooms at a

time for twenty years. The hundreds of customer

relationships Aloha B&B forms through its business

is far from the "necessarily few" family-type

relationships that are subject to constitutional

protection. See Roberts, 468 U.S. at 620-21 (holding

that relationships formed through membership in

business groups with 400 and 430 members were not

protected); IDK, 836 F.2d at 1193 (concluding that

while an escort and a client "are the smallest possible

association[,]" this relationship was not protected

because, among other reasons, an escort may have

many other clients, and the relationship "lasts for a

short period and only as long as the client is willing to

pay the fee").

With respect to the purpose for which the

relationship is formed, Aloha B&B forms

relationships with its customers for commercial,

business purposes, and it is only the commercial

30a

aspects of the relationship that HRS Chapter 489

regulates.

Young testified that the primary purpose of Aloha

B&B is to "make money." She also admitted that if

she could not make money by running Aloha B&B,

she "wouldn't operate it." Young does not operate

Aloha B&B for the purpose of developing "deep

attachments and commitments" to its customers. See

id. at 620.

With respect to selectivity, duration, and

congeniality, Aloha B&B generally is not selective

about whom it will accept as customers, provides

short-term, transient lodging, and does not form

lasting relationships with customers. With narrow

exceptions such as same-sex couples and smokers,

Aloha B&B basically provides lodging to "any member

of the public who is willing to pay." Aloha B&B does

not inquire into the background of its prospective

customers, such as their political or religious beliefs,

before allowing them to book a reservation. 12/ Aloha

B&B's customers only stay for short periods of time.

The majority stay for less than a week, about 95

percent less than two weeks, and over 99 percent less

12/ While Young stated that she will not accept reservations

from smokers, same-sex couples, unmarried couples, and

disabled people who cannot climb the stairs, Young stated that

the standard questions she asks people in processing a

reservation consists of the dates they want, whether they are

smokers, what room they are asking about, requesting their

names, addresses, and contact information, asking if they have

any dietary needs, and asking about the deposit. Therefore,

based on her standard questions, Young would not be able to

determine the customers' marital status or whether they are

able to climb stairs.

31a

than a month. While Young stated that "people come

as guests and leave as friends," she acknowledged

that she had difficulty putting customers' "faces to the

name" a month after they left.

Aloha B&B and Young's relationship with

customers arising from the commercial operation of

Aloha B&B does not constitute an intimate, familytype relationship that involves "deep attachments

and commitments to the necessarily few other

individuals with whom one shares not only a special

community of thoughts, experiences, and beliefs but

also distinctively personal aspects of one's life."

Roberts, 468 U.S. at 620. Applying HRS Chapter 489

to prohibit the discriminatory conduct engaged in by

Aloha B&B in this case does not violate Young's right

to intimate association.

Aloha B&B contends that application of HRS

Chapter 489 to its conduct in this case violates

Young's constitutional right to free exercise of

religion. We disagree.

The Free Exercise Clause of the First Amendment,

which is applicable to the States through the

Fourteenth Amendment, provides that "Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof . . . ."

U.S. Const., amend. I. (emphasis added). The

protections of the Free Exercise Clause apply to laws

that target religious beliefs or religiously motivated

conduct. Church of the Lukumi Babalu Aye. Inc. v.

City of Hialeah, 508 U.S. 520, 532-34 (1993).

However, the Supreme Court has held that "the right

of free exercise does not relieve an individual of the

32a

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).'ௗ" Employment Div., Dept.

of Human Resources of Ore. v. Smith, 494 U.S. 872,

879 (1990) (citation omitted). In Smith, the Supreme

Court further held that neutral laws of general

applicability need not be justified by a compelling

governmental interest even when they have the

incidental effect of burdening a particular religious

practice. Id. at 882-85. 13/

Under Smith, to withstand a challenge based on

the Free Exercise Clause of the First Amendment, a

neutral state law of general applicability that has the

incidental effect of burdening a particular religious

practice need not be justified by a compelling state

interest, but need only satisfy the rational basis

test. 14/ Aloha B&B does not dispute that HRS Chapter

13/ The Supreme 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." To make an

individual's obligation to obey such a law contingent

upon the law's coincidence with his religious beliefs,

except where the State's interest is "compelling" -permitting him, by virtue of his beliefs, "to become a law

unto himself," -- contradicts both constitutional tradition

and common sense.

Smith, 494 U.S. at 885 (citations and footnote omitted).

In response to the Supreme Court's decision in Smith,

Congress passed the Religious Freedom Restoration Act of 1993

(RFRA), which prohibits government from substantially

burdening the exercise of religion, even through a neutral law of

14/

33a

489 is a neutral law of general applicability. However,

it argues that we should depart from Smith, impose a

compelling state interest requirement, and apply

strict scrutiny in deciding its free exercise claim

under the Hawai‘i Constitution. 15

We need not decide whether a higher level of

scrutiny should be applied to a free exercise claim

under the Hawai‘i Constitution than the United

States Constitution. This is because we conclude that

HRS Chapter 489 satisfies even strict scrutiny as

applied to Aloha B&B's free exercise claim. To satisfy

strict scrutiny, a statute must further a compelling

state interest and be narrowly tailored to achieve that

interest. Nagle v. Board of Education, 63 Haw. 389,

392, 629 P.2d 109, 111 (1981) ("Under the strict

scrutiny standard . . . [a] court will carefully examine

a statute to determine whether it furthers compelling

state interests and is narrowly drawn to avoid

unnecessary abridgment of constitutional rights.");

Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (en

general applicability, unless the government can show that the

law was in furtherance of a compelling government interest and

was the least restrictive means of furthering that interest. See

City of Boerne v. Flores, 521 U.S. 507, 515-16 (1997}. In City of

Boerne, however, the Supreme Court invalidated the RFRA as it

applied to the States. Id. at 511, 536. Thus, with respect to state

laws, the Smith standard generally applies to claims under the

Free Exercise Clause of the First Amendment. See Korean

Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87 Hawai‘i

217, 246 & n.31, 953 P.2d 1315, 1344 & n.31 (1998).

15/ Similar to the United States Constitution, the Hawai‘i

Constitution provides: "No law shall be enacted respecting the

establishment of religion, or prohibiting the free exercise thereof

. . . ." Haw. Const. art I, § 4 (emphasis added).

34a

banc) ("To satisfy strict scrutiny, . . . the challenged

law [must be] 'narrowly tailored to achieve a

compelling

governmental

interest.'ௗ"

(citation

omitted)).

In evaluating Aloha B&B's free exercise claim

under the Hawai‘i Constitution, we balance the

burden HRS Chapter 489 imposes on Young's free

exercise of religion against the State's interest in

prohibiting discrimination in public accommodations.

See Korean Buddhist Dae Won Sa Temple of Hawaii

v. Sullivan, 87 Hawai‘i 217, 246, 953 P.2d 1315, 1344

(1998). To establish a prima facie case for its free

exercise claim, Aloha B&B must show that HRS

Chapter 489 interferes with a religious belief that is

sincerely held by Young and imposes a substantial

burden on Young's religious interests. See id. at 247,

953 P.2d at 1345.

Aloha B&B asserts that based on Young's religion,

she believes that sexual relations between individuals

of the same sex are immoral; that providing a room to

a same-sex couple would serve to facilitate conduct

she believes is immoral; and thus requiring her to

provide lodging to Plaintiffs and other same-sex

couples would impose substantial burdens on her free

exercise of religion. Plaintiffs have not challenged the

sincerity of Young's religious beliefs, but argue that

Aloha B&B cannot show a substantial burden on

Young's religion. Plaintiffs argue that Young's

religious beliefs do not compel her to operate a bed

and breakfast business. They also assert that Young

can still use her home to generate income without any

alleged conflict between her religious beliefs and the

law by relying on the "Mrs. Murphy" exemption in

35a

HRS Chapter 515 and renting out rooms to tenants

seeking long-term housing.

Assuming, without deciding, that Aloha B&B

established a prima facie case of substantial burden

to Young's exercise of religion, we conclude that the

application of HRS Chapter 489 to Aloha B&B's

conduct in this case satisfies the strict scrutiny

standard. As previously discussed, Hawai‘i has a

compelling

state

interest

prohibiting

discrimination in public accommodations. The

Hawai‘i Legislature has specifically found and

declared that "the practice of discrimination because

of sexual orientation . . . in . . . public accommodations

. . . is against public policy.” HRS § 368-1 (2015).

Discrimination in public accommodations results

in a "stigmatizing injury" that "deprives persons of

their individual dignity" and injures their "sense of

self-worth and personal integrity." Roberts, 468 U.S.

at 625; King, 656 P.2d at 352, cited in Hoshijo ex rel.

White, 102 Hawai‘i at 317 n.22, 76 P.3d at 560 n.22.

Aloha B&B itself has acknowledged that "in places of

public accommodation discrimination is a horrible

evil."

HRS Chapter 489 is narrowly tailored to achieve

Hawai‘i's compelling interest in prohibiting

discrimination in public accommodations. See

Roberts, 468 U.S. at 626 (holding that Minnesota, in

applying its public accommodations statute to

prohibit the Jaycees from discriminating against

women, advanced its interest "through the least

restrictive means of achieving its ends''). HRS

Chapter 489 "responds precisely to the substantive

problem [of discrimination in public accommodations]

36a

which legitimately concerns the State." Id. at 629

(internal quotation marks and citation omitted).

Because the application of HRS Chapter 489 to Aloha

B&B's discriminatory conduct in this case satisfies

even strict scrutiny, Aloha B&B is not entitled to

relief on its free exercise claim. 16/

16/ We reject Aloha B&B's claim that Plaintiffs' Complaint

should have been dismissed for failing to name Young, who it

maintains is an indispensable party, as a defendant. Aloha B&B

is operated as a sole proprietorship with Young as its sole

proprietor. "[I]n the case of a sole proprietorship, the firm name

and the sole proprietor's name are but two names for one

person." Credit Assocs. of Maui, Ltd. v. Carlbom, 98 Hawai‘i 462,

466, 50 P.3d 431, 435 (App. 2002) (block quote format and

citation omitted).

37a

CONCLUSION

Based on the foregoing, we affirm the Circuit

Court’s Summary Judgment Order.

On the briefs:

Shawn A. Luiz

James Hochberg

for Defendant-Appellant

Joseph P. Infranco

Joseph E. La Rue

(Alliance Defending

Freedom)

for Defendant Appellant

Jay S. Handlin

Linsay N. McAneeley

(Lambda Legal Defense

and Education Fund,

Inc.)

For Plaintiffs-Appellees

Robin Wurtzel

Shirley Naomi Garcia

April L. Wilson-South

(Hawai‘i Civil Rights

Commission)

for Plaintiff-IntervenorAppellee

38a

Electronically

Filed

Supreme Court

SCWC-13-0000806

10-JUL-2018

08:03 AM

SCWC-13-0000806

IN THE SUPREME COURT OF THE STATE OF

HAWAI‘I

DIANE CERVELLI and TAEKO BUFFORD,

Respondent/Plaintiffs-Appellees,

vs.

ALOHA BED & BREAKFAST,

a Hawai‘i sole proprietorship,

Petitioner/Defendant-Appellant,

and

WILLIAM D. HOSHIJO, as Executive Director

of the Hawai‘i Civil Rights Commission,

Respondent/Plaintiff-Intervenor-Appellee.

CERTIORARI TO THE

INTERMEDIATE COURT OF APPEALS

(CAAP-13-0000806; CIVIL NO. 11-1-3103)

ORDER REJECTING APPLICATION

FOR WRIT OF CERTIORARI

(By: Recktenwald, C.J., Nakayama, McKenna,

Pollack, and Wilson, JJ.)

39a

Petitioner/Defendant-Appellant Aloha Bed &

Breakfast’s application for writ of certiorari filed on

May 18, 2018, is hereby rejected.

DATED: Honolulu, Hawai‘i, July 10, 2018.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

40a

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

PETER C. RENN

(CA 247633)

(Admitted Pro Hac Vice)

3325 Wilshire Blvd.,

Suite 1300

Los Angeles, California

90010

Telephone: (213) 382-7600

Facsimile: (213) 351-6050

Email:

prenn@lambdalegal.org

DEPARTMENT OF

LABOR &

INDUSTRIAL

RELATIONS

HAWAI‘I CIVIL

RIGHTS COMMISSION

SHIRLEY NAOMI

GARCIA #7873

CARLSMITH BALL LLP APRIL L. WILSONSOUTH #6346

JAY S. HANDLIN #8661

ROBIN WURTZEL

LINDSAY N.

#5385

MCANEELEY #8810

830 Punchbowl Street,

ASB Tower, Suite 2200

Room 411

1001 Bishop Street

Honolulu, Hawai‘i

Honolulu, Hawai‘i 96813

96813

Telephone: (808) 523-2500 Telephone:

Facsimile: (808) 523-0842 (808) 586-8636

Email:

Facsimile:

jhandlin@carlsmith.com

(808) 586-8655

lmcaneeley

Email: robin.wurtzel@

@carlsmith.com

hawaii.gov

Attorneys for Plaintiffs

DIANE CERVELLI and

TAEKO BUFFORD

Attorneys for PlaintiffIntervenor

WILLIAM D. HOSHIJO,

Executive Director

41a

IN THE CIRCUIT COURT

OF THE FIRST CIRCUIT

STATE OF HAWAI‘I

DIANE CERVELLI and

TAEKO BUFFORD,

Plaintiffs, and

CIVIL NO. 11-1-3103-12

ECN

(Other Civil Action)

ORDER GRANTING

PLAINTIFFS’ AND

PLAINTIFFINTERVENOR’S

MOTION FOR

PlaintiffPARTIAL SUMMARY

Intervenor,

JUDGMENT FOR

DECLARATORY AND

vs.

INJUNCTIVE RELIEF

ALOHA BED &

AND DENYING

BREAKFAST, a Hawai‘i DEFENDANT’S

sole proprietorship,

MOTION FOR

SUMMARY

Defendant.

JUDGMENT

WILLIAM D. HOSHIJO,

as Executive Director of

the Hawai‘i Civil Rights

Commission,

HEARING MOTION

JUDGE: Edwin C. Nacino

HEARING DATE:

Mar. 28, 2013

HEARING TIME:

9:00 a.m.

TRIAL: Nov. 4, 2013

42a

ORDER GRANTING PLAINTIFFS’ AND

PLAINTIFF-INTERVENOR’S MOTION FOR

PARTIAL SUMMARY JUDGMENT FOR

DECLARATORY AND INJUNCTIVE RELIEF

AND DENYING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

Pending before the Court are two motions. First,

on February 13, 2013, Plaintiffs Diane Cervelli and

Taeko Bufford and Plaintiff-Intervenor William D.

Hoshijo as Executive Director of the Hawai‘i Civil

Rights Commission (collectively, “Plaintiffs”) filed a

Motion for Partial Summary Judgment. Defendant

Aloha Bed & Breakfast (“Defendant”) filed its

opposition on March 19, 2013. Plaintiffs filed a reply

on March 22, 2013. Second, on February 20, 2013,

Defendant filed a Motion for Summary Judgment.

Plaintiffs filed their opposition on March 19, 2013.

Defendant filed a reply on March 22, 2013.

The Court held a hearing on both Plaintiffs’ and

Defendant’s motions on March 28, 2013, at which

Peter Renn, Jay Handlin, and Lindsay McAneeley

appeared for Plaintiffs Diane Cervelli and Taeko

Bufford, Robin Wurtzel appeared for PlaintiffIntervenor, and Joseph LaRue, Shawn Luiz, and

James Hochberg appeared for Defendant.

Having considered the pleadings in this matter, all

papers filed in support of and in opposition to the

motions, and the argument presented by counsel at

the hearing on the motions, the Court finds that there

is no genuine dispute of material fact that Defendant

violated Hawai‘i Revised Statutes (“HRS”) § 489-3.

Pursuant to HRS § 489-7.5 and Hawai‘i Rule of Civil

Procedure 65(d), the Court also finds that injunctive

43a

relief is appropriate. Defendant is governed by

Chapter 489, HRS, not Chapter 515, HRS, and

Defendant

constitutes

place

public

accommodation under HRS § 489-2, because its goods,

services, facilities, privileges, advantages, or

accommodations are extended, offered, sold, or

otherwise made available to the general public as

customers, clients, or visitors. Defendant also

constitutes “[a]n inn, hotel, motel or other

establishment that provides lodging to transient

guests” and “[a] facility providing services relating to

travel or transportation.” HRS § 489-2. Defendant

violated HRS § 489-3 by discriminating against

Plaintiffs Diane Cervelli and Taeko Bufford on the

basis of their sexual orientation as lesbians.

Accordingly, the Court hereby ORDERS as

follows:

1. Plaintiffs’ motion for partial summary

judgment with regard to liability and

declaratory and injunctive relief is hereby

GRANTED in full. Defendant Aloha Bed &

Breakfast, a Hawai‘i sole proprietorship of

Phyllis Young, and its officers, agents,

servants, employees, attorneys, and those in

active concert or participation with them who

receive actual notice of this order by personal

service or otherwise, are hereby prohibited

from engaging in any practices that operate to

discriminate against same-sex couples as

customers of Aloha Bed & Breakfast; and

44a

45a

IN THE CIRCUIT COURT

OF THE FIRST CIRCUIT

STATE OF HAWAI‘I

DIANE CERVELLI and ) CIVIL NO. 11-1-3103-12

TAEKO BUFFORD,

) ECN

) (Other Civil Action)

Plaintiffs,

)

WILLIAM D. HOSHIJO, ) ORDER GRANTING

as Executive Director of ) THE PARTIES’

the Hawai‘i Civil Rights ) STIPULATED

Commission,

) APPLICATION FOR

) APPEAL FROM

Plaintiff) INTERLOCUTORY

Intervenor,

) ORDER

)

) JUDGE: Edwin C. Nacino

ALOHA BED &

BREAKFAST, a Hawai‘i ) Trial Date: November 4,

)

sole proprietorship,

2013

)

Defendant.

)

ORDER GRANTING THE PARTIES’

STIPULATED APPLICATION FOR APPEAL

FROM INTERLOCUTORY ORDER

The parties made application, by way of

stipulation, for appeal from the interlocutory order

“ORDER

GRANTING

PLAINTIFFS’

AND

PLAINTIFF-INTERVENOR’S

MOTION

FOR

PARTIAL

SUMMARY

JUDGMENT

FOR

DECLARATORY AND INJUNCTIVE RELIEF AND

46a

DENYING

DEFENDANT’S

MOTION

FOR

SUMMARY JUDGMENT”, filed April 15, 2013.

Because Defendant contends that it is not subject

to liability under HRS 489, is afforded complete

immunity under HRS Chapter 515, and is entitled to

a constitutional defense to liability, the granting of an

interlocutory appeal may put an end to the action,

rather than merely saving the litigants time and

litigation expenses.

Defendant raises questions of law that could

substantially affect the final result of the case.

Defendant further contends that the appeal may put

an end to the action.

Pursuant to HRS § 641-1(b), “Upon application

made within the time provided by the rules of court,

an appeal in a civil matter may be allowed by a circuit

court in its discretion from an order denying a motion

to dismiss or from any interlocutory judgment, order,

or decree whenever the circuit court may think the

same advisable for the speedy termination of

litigation before it.”

Defendant made an application within the time

provided by the rules of court, and an appeal in a civil

matter may therefore be allowed by a circuit court in

its discretion from an order granting a plaintiff's

motion for partial summary judgment and denying a

defendant's motion for summary judgment or from

any interlocutory judgment, order, or decree

whenever the circuit court may think the same

advisable for the speedy termination of litigation

before it.

47a

Accordingly, the Court, having reviewed and

considered the Stipulated Application, HEREBY

FINDS as follows:

1) that pursuant to Hawaii Revised Statutes

§ 641(b) it is within the Court's discretion whether or

not to allow an immediate interlocutory appeal of its

Order Granting Plaintiffs’ and Plaintiff-Intervenor’s

Motion for Partial Summary Judgment For

Declaratory and Injunctive Relief and Denying

Defendant’s Motion for Summary Judgment

(“Plaintiffs Motion”), entered April 15, 2013 (“Order”);

2) that the Court has considered whether granting

an appeal of its Order would be advisable for the

speedy termination of this litigation;

3) that Plaintiffs’ motion sought partial summary

judgment in its favor because Defendant allegedly

discriminated against Plaintiffs in violation of

Chapter 489, Hawaii Revised Statutes;

4) that Defendant opposed Plaintiffs’ Motion on

the grounds that (1) Defendant is not subject to

liability under Chapter 489, Hawaii Revised Statutes;

(2) Defendant’s conduct is protected under Chapter

515, Hawaii Revised Statutes; and (3) Defendant has

a Constitutional defense to liability under Chapter

489, Hawaii Revised Statutes;

5) that the Court granted Plaintiff's Motion;

6) that the question of whether Chapter 489 or

Chapter 515 of Hawaii Revised Statutes applies is a

controlling question of law;

7) that the question of whether Defendant is

entitled to a constitutional defense to liability under

48a

Chapter 489, Hawaii Revised Statutes is a controlling

question of law;

8) that Defendant contends that there is

substantial ground for difference of opinion on the

issue of whether Chapter 489, Hawaii Revised

Statutes or Chapter 515, Hawaii Revised Statutes

applies to Defendant;

9) that Defendant contends that there is a

substantial ground for difference of opinion on the

issue of whether Defendant is entitled to a

constitutional defense to liability under Chapter 489,

Hawaii Revised Statutes;

10) that if Defendant prevails on appeal, this

litigation will be terminated;

11) that, given the nature of Defendant’s defenses,

granting an appeal of the Order would be advisable

for the speedy termination of this litigation in

accordance with Hawaii Revised Statutes § 641-1(b);

and

12) that the Court adopts and incorporates herein

by reference all additional findings and reasons

stated on the record by the Court at the Hearing.

Based on the above findings, the Court HEREBY

GRANTS the Stipulated Application for Appeal from

Interlocutory Order in its entirety.

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that Defendant may immediately appeal

the Court's Order granting Plaintiffs’ Motion, and IT

IS FURTHER ORDERED, ADJUDGED, AND

DECREED that this action shall be stayed in its

49a

entirety, including enforcement of the injunction,

until conclusion of the appeal.

50a

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

PETER C. RENN

(CA 247633)

(Admitted Pro Hac Vice)

3325 Wilshire Blvd.,

Suite 1300

Los Angeles, California

90010

Telephone: (213) 382-7600

Facsimile: (213) 351-6050

Email:

prenn@lambdalegal.org

DEPARTMENT OF

LABOR &

INDUSTRIAL

RELATIONS

HAWAI‘I CIVIL

RIGHTS COMMISSION

SHIRLEY NAOMI

GARCIA #7873

CARLSMITH BALL LLP APRIL L. WILSONSOUTH #6346

JAY S. HANDLIN #8661

ROBIN WURTZEL

LINDSAY N.

#5385

MCANEELEY #8810

830 Punchbowl Street,

ASB Tower, Suite 2200

Room 411

1001 Bishop Street

Honolulu, Hawai‘i

Honolulu, Hawai‘i 96813

96813

Telephone: (808) 523-2500 Telephone:

Facsimile: (808) 523-0842 (808) 586-8636

Email:

Facsimile:

jhandlin@carlsmith.com

(808) 586-8655

lmcaneeley

Email: robin.wurtzel@

@carlsmith.com

hawaii.gov

Attorneys for Plaintiffs

DIANE CERVELLI and

TAEKO BUFFORD

Attorneys for PlaintiffIntervenor

WILLIAM D. HOSHIJO,

Executive Director

51a

IN THE CIRCUIT COURT

OF THE FIRST CIRCUIT

STATE OF HAWAI‘I

DIANE CERVELLI and

TAEKO BUFFORD,

Plaintiffs, and

WILLIAM D. HOSHIJO,

as Executive Director of

the Hawai‘i Civil Rights

Commission,

PlaintiffIntervenor,

CIVIL NO. 11-1-3103-12

ECN

(Other Civil Action)

STIPULATION AND

ORDER RE TIME TO

FILE MOTION FOR

ATTORNEYS’ FEES;

CERTIFICATE OF

SERVICE

vs.

ALOHA BED &

BREAKFAST, a Hawai‘i

sole proprietorship,

Defendant.

STIPULATION AND ORDER RE TIME TO

FILE MOTION FOR ATTORNEYS’ FEES

On April 15, 2013, the Court issued an order

granting the motion for partial summary judgment

filed by Plaintiffs Diane Cervelli and Taeko Bufford

(“Plaintiffs”) and Plaintiff Intervenor William

Hoshijo, as Executive Director of the Hawai‘i Civil

Rights Commission. Defendant Aloha Bed &

Breakfast (“Defendant”) intends to request leave to

take an interlocutory appeal of that order.

Hawai‘i Rule of Civil Procedure 56(d) provides that

“[u]nless otherwise provided by statute or order of the

52a

court, [a] motion [for attorneys’ fees] must be filed and

served no later than 14 days after entry of an

appealable order or judgment.” To the extent the

Court’s April 15, 2013 order constitutes an

“appealable order” within the meaning of Rule 56(d),

Plaintiffs and Defendant agree, subject to the Court’s

approval, that no party is required to file a motion for

attorneys’ fees or bill of costs any earlier than 14 days

after the conclusion of this case, including the

conclusion of any and all appeals.

53a

DEPARTMENT OF LABOR &

INDUSTRIAL RELATIONS

HAWAI‘I CIVIL RIGHTS

COMMISSION

830 Punchbowl Street, Room 411

Honolulu, Hawai‘i 96813

Telephone: (808) 586-8636

Facsimile: (808) 586-8665

Electronic Mail:

Robin.Wurtzel@hawaii.gov

ROBIN WURTZEL #5385

SHIRLEY NAOMI

GARCIA #7873

APRIL L. WILSON

SOUTH #6346

Attorneys for WILLIAM D. HOSHIJO,

Executive Director

IN THE CIRCUIT COURT

OF THE FIRST CIRCUIT

STATE OF HAWAI‘I

DIANE CERVELLI and ) CIVIL NO. 11-1-3103-12

TAEKO BUFFORD,

) ECN

) (Other Civil Action)

Plaintiffs,

)

And WILLIAM D.

) ORDER GRANTING

HOSHIJO, as Executive ) MOTION TO

Director of the Hawai‘i ) INTERVENE

Civil Rights

)

Commission,

) Non-Hearing Motion

)

Plaintiff)

Intervenor,

54a

) JUDGE: The Honorable

)

Edwin C. Nacino

ALOHA BED &

)

BREAKFAST, a Hawai‘i ) TRIAL: Not Set

sole proprietorship,

)

Defendant.

vs.

ORDER GRANTING MOTION TO INTERVENE

William D. Hoshijo, as Executive Director of the

Hawai‘i Civil Rights Commission, filed a NonHearing Motion to Intervene as a Plaintiff on

December 19, 2011, pursuant to Hawai‘i Revised

Statutes §368-12, and no opposition to said Motion

was filed. The proposed Intervener adopts the

Complaint alleged by Plaintiffs Cervelli and Bufford.

The Motion is hereby GRANTED, and WILLIAM D.

HOSHIJO, as Executive Director of the Hawai‘i Civil

Rights Commission is granted leave to intervene as a

Plaintiff in this matter.

55a

Electronically Filed

Intermediate Court of Appeals

CAAP-13-0000806

20-MAR-2018

11:31 AM

NO. CAAP-13-0000806

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

DIANE CERVELLI and TAEKO BUFFORD,

Plaintiffs-Appellees,

vs.

ALOHA BED & BREAKFAST,

a Hawai‘i sole proprietorship,

Defendant-Appellant,

and

WILLIAM D. HOSHIJO, as Executive Director

of the Hawai‘i Civil Rights Commission,

Plaintiff-Intervenor-Appellee.

APPEAL FROM THE CIRCUIT COURT

OF THE FIRST CIRCUIT

(CIVIL NO. 11-1-3103)

JUDGMENT ON APPEAL

(By: Fujise, Acting Chief Judge, for the court 1/)

1/ Fujise, Acting Chief Judge, and Reifurth, J. Chief Judge

Craig H. Nakamura was a member of the merit panel when the

Opinion was filed, but he retired effective March 1, 2018.

56a

Pursuant to the Opinion of the Intermediate Court

of Appeals of the State of Hawai‘i entered on February

23, 2018, the "Order Granting Plaintiffs' and

Plaintiff-Intervenor's Motion for Partial Summary

Judgment for Declaratory and Injunctive Relief and

Denying Defendant's Motion for Summary Judgment"

that was entered by the Circuit Court of the First

Circuit on April 15, 2013, is affirmed, and the case is

remanded for further proceedings.

DATED: Honolulu, Hawai‘i, March 20, 2018.

57a

U.S. CONST. AMEND I

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 XIV, § 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

58a

HRS § 368-17

Remedies

(a) The remedies ordered by the commission or the

court under this chapter may include compensatory

and punitive damages and legal and equitable relief,

including, but not limited to:

(1) Hiring, reinstatement, or upgrading

employees with or without back pay;

(2) Admission or restoration of individuals to

labor organization membership, admission to or

participation

guidance

program,

apprenticeship training program, on-the-job

training program, or other occupational

training or retraining program, with the

utilization of objective criteria in the admission

of persons to those programs;

(3) Admission

persons

public

accommodation or an educational institution;

(4) Sale, exchange, lease, rental, assignment, or

sublease of real property to a person;

(5) Extension to all persons of the full and equal

enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of

the respondent;

(6) Reporting as to the manner of compliance;

(7) Requiring the posting of notices in a

conspicuous place that the commission may

publish or cause to be published setting forth

requirements for compliance with civil rights

law or other relevant information that the

59a

commission determines necessary to explain

those laws;

(8) Payment to the complainant of damages for an

injury or loss caused by a violation of part I of

chapter 489, chapter 515, part I of chapter 378,

or this chapter, including a reasonable

attorney's fee;

(9) Payment to the complainant of all or a portion

of the costs of maintaining the action before the

commission, including reasonable attorney's

fees and expert witness fees, when the

commission determines that award to be

appropriate; and

(10) Other relief the commission or the court

deems appropriate.

(b) Section 386-5 notwithstanding, a workers'

compensation claim or remedy does not bar relief on

complaints filed with the commission.

60a

Excerpts from

HRS § 489-2 (2007) Definitions

*****

“Place of public accommodation” means a

business,

accommodation,

refreshment,

entertainment, recreation, or transportation facility

of any kind whose goods, services, facilities,

privileges, advantages, or accommodations are

extended, offered, sold, or otherwise made available

to the general public as customers, clients, or visitors.

By way of example, but not of limitation, place of

public accommodation includes facilities of the

following types:

(1) A facility providing services relating to travel

or transportation;

(2) An inn, hotel, motel, or other establishment

that provides lodging to transient guests;

*****

61a

HRS § 489-3 (2007)

Discriminatory practices prohibition

Unfair discriminatory practices that deny, or

attempt to deny, a person the full and equal

enjoyment of the goods, services, facilities, privileges,

advantages, and accommodations of a place of public

accommodation on the basis of race, sex, including

gender identity or expression, sexual orientation,

color, religion, ancestry, or disability are prohibited.

62a

HRS § 489-8

Civil penalty

(a) It shall be unlawful for a person to discriminate

unfairly in public accommodations.

(b) Any person, firm, company, association, or

corporation who violates this part shall be fined a sum

of not less than $500 nor more than $10,000 for each

violation, which sum shall be collected in a civil action

brought by the attorney general or the civil rights

commission on behalf of the State. The penalties

provided in this section shall be cumulative to the

remedies or penalties available under all other laws

of this State. Each day of violation under this part

shall be a separate violation.

of this chapter.

63a

Excerpts from

HRS § 515-2 (2007) Definitions

*****

“Housing accommodation” includes any improved

or unimproved real property, or part thereof, which is

used or occupied, or is intended, arranged, or designed

to be used or occupied, as the home or residence of one

or more individuals.

*****

“Real estate transaction” includes the sale,

exchange, rental, or lease of real property.

“Real property” includes buildings, structures,

real estate, lands, tenements, leaseholds, interests in

real estate cooperatives, condominiums, and

hereditaments, corporeal and incorporeal, or any

interest therein.

*****

64a

Excerpt from

HRS § 515-3 (2007) Discriminatory practices

It is a discriminatory practice for an owner or any

other person engaging in a real estate transaction, or

for a real estate broker or salesperson, because of

race, sex, including gender identity or expression,

sexual orientation, color, religion, marital status,

familial status, ancestry, disability, age, or human

immunodeficiency virus infection:

(1) To refuse to engage in a real estate transaction

with a person;

*****

65a

Excerpts from

HRS § 515-4 (a)(2) (2007) Exemptions

(a) Section 515-3 does not apply:

***

(2) To the rental of a room or up to four rooms in

a housing accommodation by an individual if the

individual resides therein.

*****

66a

EXCERPTS FROM COMPLAINT FOR

INJUNCTIVE RELIEF, DECLARATORY

RELIEF, AND DAMAGES

*****

[ROA 33]

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment as

follows:

*****

[ROA 34]

C. Awarding Plaintiffs damages in an amount to

be proven at trial including actual, compensatory,

statutory, treble, special, and punitive damages

pursuant to HRS §§ 368-17 & 489-7.5;

D. Awarding Plaintiffs pre-judgment and postjudgment interest;

E. Awarding reasonable attorneys’ fees, costs,

and other expenditures incurred as a result of

bringing this action, pursuant to all applicable laws

and doctrines; and

F. Awarding Plaintiffs further relief as this

Court may deem just and equitable.

*****

67a

EXCERPTS FROM FIRST AMENDED ANSWER

AND AFFIRMATIVE DEFENSES TO

COMPLAINT FILED DECEMBER 19, 2011

*****

[ROA 361-363]

FIRST AFFIRMATIVE DEFENSE

Aloha is not a place of “public accommodation” for

purposes of Hawai‘i Revised Statutes chapter 489, but

instead is the rental of an interest in real estate that

is used as a residence in which Ms. Young resides,

where three or fewer rooms are made available to

others for a fee.

SECOND AFFIRMATIVE DEFENSE

Application of Hawai‘i Revised Statutes chapter

489 to Aloha violates its owner’s rights under the Free

Exercise Clause of the First Amendment of the United

States Constitution.

THIRD AFFIRMATIVE DEFENSE

Application of Hawai‘i Revised Statutes chapter

489 to Aloha violates its owner's rights under Article

I, Section 4 of the Hawai‘i Constitution.

FOURTH AFFIRMATIVE DEFENSE

Application of Hawai‘i Revised Statutes chapter

489 to Aloha violates its owner's Free Speech rights

under the First Amendment of the United States

Constitution.

68a

FIFTH AFFIRMATIVE DEFENSE

Application of Hawai‘i Revised Statutes chapter

489 to Aloha violates its owner’s Free Speech rights

under Article I, Section 4 of the Hawai‘i Constitution.

SIXTH AFFIRMATIVE DEFENSE

Application of Hawai‘i Revised Statutes chapter

489 to Aloha violates its owner’s rights of Expressive

Association under the First Amendment of the United

States Constitution.

SEVENTH AF

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