Petition for Writ of Certiorari — Freitas v. Administrative Director of the Courts

8

Court of Hawaii quite reasonably recognized a correspond-

ing due process right under the Fourteenth Amendment in

contested civil proceedings. Freitas I, 104 Haw. at 489, 92

P.3d at 499 (and implicitly in Freitas IJ, 108 Haw. at 37,

39, 116 P.3d at 679, 681).

B. The Split with Courts of Other Jurisdic-

tions

After recognizing the constitutional due process right

to a public hearing, the Supreme Court of Hawaii nonethe-

less held that the restrictions imposed by the sign-in

procedure are constitutionally permitted. Freitas IJ, 108

Haw. at 40, 116 P.3d at 682. In support, the court cited

three cases from different jurisdictions. 108 Haw. at 37-39,

116 P.3d at 679-81 (citing Williams v. State, 690 N.E.2d

162 (Ind.1997); United States v. DeLuca, 137 F.3d 24 (ist

Cir.1998), and United States v. Brazel, 102 F.3d 1120 (11th

Cir.1997)). The court’s reliance on these three cases is

misplaced. The three cases stand for the proposition that

where standard security screening is in place (e.g., metal

detecting devices) and where something unusual and

perhaps ominous has occurred during a particular trial -

such as spectators staring intently at jurors or witnesses

as if to intimidate them — then extra security precautions

that impede public access to a limited extent may be

warranted, justifying, for example, the addition of a sign-

in and identification procedure.’ In a split with those three

* In Brazel, the trial judge had observed certain individuals

posturing and directing “fixed stares” at the witnesses, who were then

becoming visibly uncomfortable. 102 F.3d at 1155.

In DeLuca, the trial court found that the defendants’ extensive

criminal histories and the violent nature of the criminal acts alleged

(Continued on following page)

9

jurisdictions, the Supreme Court of Hawaii has allowed a

sign-in and identification procedure to become a routine

restriction, imposed in every case, as a substitute for

standard security screening.

The instant case squarely presents the following

issues for decision by this court: (1) In a contested admin-

istrative case, is there a due proce: } right to public access

that corresponds to the First Amendment right of the

media and the public and the Sixth Amendment right of

criminal defendants? (2) Is that due process right impli-

cated by a sign-in procedure imposed in every case, par-

ticularly where the sign-in roster is kept by the agency for

use at its own discretion and is open and available to the

general public? (3) May the government interest in secu-

rity at public hearings be equated, as a matter of law, to a

government desire to prevent anonymity on the part of

members of the public who wish to attend public hearings

when the agency lacks standard security screening? (4) Is

a sign-in and identification procedure as the exclusive

means of providing security at a public hearing the least

restrictive means of serving the government’s interest in

security?

against them raised apprehensions that weapons could get past

security by coercion or bribes. 137 F.3d at 35.

In Williams, the appellate court spelled out the requirement that

the trial court “make a finding that specifically supports any measures

taken beyond what is customarily permitted that are likely to affect

unfettered access by the press and public to the courtroom.” 690 N.& 2d

at 169. As the Supreme Court of Indiana stated, “[T}he free flow of

ideas and information may be facilitated by anonymous monitoring of

public proceedings.” /d.

In contrast, in Hawaii, depriving a person of his or her anonymity

at public hearings is the policy of the ADLRO in all cases, sanctioned by

the Supreme Court of Hawaii.

10

In the post 9/11 world, these issues are important and

need to be resolved by this Court. Does the ADLRO sign-in

procedure really vindicate security? Is anonymity really a

threat to security, as the ADLRO would have it, or does

the ADLRO seek to prevent the “free flow of ideas and

information” that may be facilitated by anonymous atten-

dees?

e

vv

CONCLUSION

The Court should grant the petition for a writ of

certiorari to review the decision of the Supreme Court of

Hawaii.

Respectfully submitted,

EARLE A. PARTINGTON

KAREN A. ESSENE

Counsel of Record for Petitioner

1330 Pacific Tower

1001 Bishop Street

Honolulu, Hawaii 96813

(808) 526-9500

App. 1

* * x FOR PUBLICATION * * *

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

DARCY C. K. FREITAS, Petitioner-Appellant

vs.

ADMINISTRATIVE DIRECTOR OF THE COURTS,

STATE OF HAWAI'I,

Respondent-Appellee

No. 25323

APPEAL FROM THE DISTRICT COURT OF THE

FIRST CIRCUIT (CASE NO. JR02-0012)

JULY 25, 2005

MOON, C.J., LEVINSON,

NAKAYAMA, ACOBA, AND DUFFY, JJ.

OPINION OF THE COURT BY LEVINSON, J. AS

TO PARTS I-III (IDENTIFICATION SIGN-IN

PROCEDURE); OPINION OF THE COURT BY

ACOBA, J. AS TO PARTS IV-XIV (MERITS); AND

ACOBA, J., DISSENTING AS TO PART III.

PARTIAL OPINION OF THE COURT BY LEVINSON, J.

The petitioner-appellant Darcy C.K. Freitas appeals

from the decision of the district court of the first circuit,

the Honorable Fa’auuga To’oto’o presiding, affirming the

administrative revocation of Freitas’s driver’s license by a

hearing officer of the Administrative Driver's License

Revocation Office (ADLRO). In his supplemental brief,

Freitas argues (1) that he was denied his state and federal

constitutional due process rights to an open ADLRO

App. 2

hearing on remand, (2) that the hearing officer “ignored all

evidence contrary to her preconceived determination to

uphold the ADLRO sign[-Jin procedure [,]” and (3) that

“the hearing officer’s findings of fact are clearly erroneous

and her conclusions of law are contrary to established

law(.]”"

In this portion of our opinion, we address Freitas’s

contentions that the ADLRO erred in ruling that the sign-

in and identification procedure employed at ADLRO

hearings did not deprive Freitas of his right to a public

hearing. We hold that the hearing officer’s decision was

correct, inasmuch as the procedure satisfies the three-part

test that this court articulated in Freitas v. Admin. Dir. of

the Courts, State of Hawai'i, 104 Hawai'i 483, 489, 92 P.3d

993, 999 (2004) (hereinafter, “Freitas I”).

" On appeal to this court in the first instance, Freitas argued, inter

alia, that the district court erred in impliedly ruling that he, Freitas,

was not entitled to a hearing on the ADLRO’s restrictions on public

access to hearings and that public access to his hearing was not

hindered, thereby resulting in no violation of his state and federal

constitutional rights to a public hearing.

In Freitas v. Admin. Dir. of the Courts, State of Hawai'i, 104

Hawaii 483, 484, 92 P.3d 993, 994 (2004), this court held, inter alia,

that “because ADLRO hearings are quasi-judicial administrative

hearings, due process requires that the hearings be public, and ...

Freitas was entitled to a hearing on his objections to the ADLRO sign-

in and identification procedure limiting public access to his hearing.”

We therefore temporarily remanded the present matter to the ADLRO

for a hearing on whether the ADLRO’s identification and sign-in

procedures violated Freitas’s right to a public hearing. Jd. at 484, 92

P.3d at 994. On July 14, 2004, the ADLRO conducted a hearing, hearing

officer Jacqueline L.Z. Kaneshiro presiding. On July 16, 2004, the

hearing officer entered her findings of fact (FOFs), conclusions of law

(COLs), anid order determining that the ADLRO’s sign-in and identifica-

tion procedure did not impermissibly interfere with Freitas’s right to a

App. 3

I. BACKGROUND

On July 14, 2004, the ADLRO conducted a hearing on

the question whether the ADLRO’s sign-in identification

procedure impermissibly limited Freitas’s right to a public

hearing. At the hearing, the deputy attorney general, on

behalf of the respondent-appellee Administrative Director

of the Courts (Director), called two witnesses: Lloyd

Shimabuku, security consultant to several Waikiki hotels

and deputy chief in the investigation division of the state

department of the attorney general; and Ronald Sakata,

chief adjudicator for the ADLRO. The Director also sub-

mitted into evidence two articles, one entitled “A Situa-

tionist Perspective on the Psychology of Evil:

Understanding How Good People Are Transformed Into

Perpetrators,” by Phillip G. Zimbardo, Ph.D., in The Social

Psychology of Good and Evil: Understanding Our Capacity

for Kindness and Cruelty (Arthur Miller ed., 2004), and

the second entitled “Identity and Anonymity: Some Con-

ceptual Distinctions and Issues for Research,” by Gary T.

Marx, in Documenting Individual Identity (J. Caplan and

J. Torpey eds., 2001). Freitas’s counsel called four wit-

nesses to testify: Reneau Charlene Ufford Kennedy, Ph.D.,

psychologist; Patrick McPherson, attorney; Lois Perrin,

Director of the American Civil Liberties Union, Hawaii;

and Michael Nakamura, retired chief of the Honolulu

Police Department.

Following the hearing, on July 16, 2004, the ADLRO

hearing officer entered twenty-five written supplemental

FOFs and four written supplemental COLs, which stated

in relevant part:

App. 4

SUPPLEMENTAL FINDINGS OF FACT

3. The ADLRO instituted this ID procedure

as a security measure to prevent unknown mem-

bers of the general public from entering the in-

ner-office area.

5. The ID procedure provides a reasonable

means of identifying and apprehending those

persons who might engage in unlawful or inap-

propriate behavior at an administrative hearing

or within the inner-office area.

6. The ID procedure provides a deterrent

for those persons seeking entry past the front

desk/reception counter, including those persons

who wish to attend hearings, to engage in unlaw-

ful, disruptive, or otherwise inappropriate behav-

ior while within the hearing and inner-office

area.

7. This deterrent effect arises out of the

fact that persons who know that their identity

has been recorded will generally be less likely to

engage in unlawful or inappropriate behavior for

the simple reason that they know they can be

held accountable. '

8. A person who remains anonymous, on

the other hand, is more likely to engage in inap-

propriate behavior if such person knows that he

or she might be able to “get away with it” and not

be held accountable. This deterrent effect makes

the ID procedure an effective security measure.

App. 5

9. Although the ID procedure is not a per-

fect security measure, it is a fundamental first-

step in the ADLRO’s security measures.

10. Mr. Sakata, as Chief Adjudicator of the

ADLRO, instituted this ID procedure based upon

his experience and common sense understanding

of human behavior... .

11. This finding is also supported by the

testimony of Mr. Lloyd Shimabuku, a former po-

lice officer{] and current Deputy Chief, special

agent, at the Hawai'i Attorney Generals office,

who also serves as the liaison for Homeland Se-

curity.... Mr. Shimabuku, who testified as an

expert on security measures (without objection),

and who has had direct experience with sign-in

and identification-showing requirements, testi-

fied that a sign-in and identification requirement

does have a deterrent effect upon a person who

might otherwise be inclined to engage in unlaw-

ful or improper behavior, and that such a re-

quirement serves as a fundamental or basic

security measure.

12. Articles by Stanford University psy-

chology professor Phillip G. Zimbardo, and M.LT.

emeritus sociology professor Gary T. Marx, to

which no objection was made, provide further

support for this finding, because these articles

support the principle that anonymity makes peo-

ple more likely to engage in aggressive, evil, de-

structive, or unlawful behavior. . . .

13. This Hearing Officer finds that these

two articles support the view that the ID proce-

dure, by directly stripping a person of his or her

anonymity, lessens the likelihood that the identi-

fied person will engage in unlawful, harmful, or

App. 6

otherwise inappropriate behavior at the adminis-

trative- hearing and within the inner-office

14. Mr. Partington also elicited testimony

from former police chief Michael Nakamura that

the ID procedure would have little benefit to se-

curity. This Hearing Officer finds that this testi-

mony was not particularly persuasive in light of

the testimony of not only ADLRO Chief Adjudica-

tor Ronald Sakata, but the testimony of security

expert Lloyd Shimabuku, and since Mr. Naka-

mura conceded that the ID procedure could have

some deterrent effect. . . .

15. With respect to attorney R. Patrick

McPherson’s testimony, as elicited by Mr. Part-

ington, in which McPherson acknowledges that

no state court, trial or appellate level, requires

one to show identification and sign [] in in order

to attend a court proceeding, this Hearing Officer

finds this testimony unrelated to the ADLRO’s

unique circumstances in which, unlike t>~ court

buildings, the area to which counsel, respuadent,

and/or other members of the public are request-

ing access, includes undifferentiated access to

the hearing room as well as all other areas of the

ADLRO office, including private offices of

ADLRO employees. .. .

16. ... [The ADLRO does not have sepa-

rate public and non-public access area(s). This

distinguishing factor between courts and the

ADLRO is critical and material in determining

whether the ADLRO’s ID procedure is war-

ranted.

App. 7

17. This Hearing Officer finds that other

security measures, including a metal detector, x-

ray machine and conveyor belt, a hand metal-

detecting wand, and someone to operate these

devices, or posting sheriffs or security guards

(armed or unarmed) in or near the hearing room

— would be expensive and beyond the budget ca-

pabilities of the ADLRO. The uncontradicted tes-

timony of Chief Adjudicator Sakata set: ‘ag forth

the approximate costs of some of these measures,

and how the ADLRO’s budget would not allow

such measures to be taken, supports this finding.

On the other hand, the ID procedure costs virtu-

ally nothing.) .. .

18. In addition, metal detectors, x-ray ma-

chines and hand metal-detecting wands would do

nothing to stop a person intent on accosting

ADLKO staff or hearing attendees by hand, arm,

leg or foot, nor would such devices prevent some-

one from causing a vocal or verbal disturbance to

the administrative proceeding. The ID procedure,

on the other hand, could potentially deter such

inappropriate behavior. .. .

19. Furthermore, metal detection devices

may be very intrusive into a person’s privacy, by

requiring people to take their things out of their

pockets, have their bags x-rayed, or their per-

sonal bodies searched by hand wand.

20. In addition, this Hearing Officer finds

that even if such additional security measures

were in place — e.g., a metal detector, x-ray con-

veyor belt, and hand wand, or a security guard —

the ID procedure would provide an additional se-

curity benefit in the form of deterrence[.] ...

There is no less intrusive way to achieve this par-

ticular form of deterrence — based upon depriving

App. 8

a person of her anonymity — other than to have

the ADLRO’s ID procedure in effect. Although se-

curity cameras, by recording the visual image of

a person, do remove some level of anonymity,

they still leave a person the chance of remaining

unidentified. Indeed, security cameres, by cap-

turing a continuing and visual image of hearing

attendees, may be equally if not more intrusive

upon a person’s privacy than the ID procedure.

22. This Hearing Officer finds that there is

no less intrusive way to provide the unique de-

terrent effect created by the ADLRO ID proce-

dure other than to maintain the ID procedure.

No other security measure could fully substitute

for the special and unique deterrent effect

brought about by requiring the showing of a pic-

ture ID and sign-in, as it is the most effective

(and simplest) way of eliminating one’s anonym-

ae

23. This Hearing Officer finds that al-

though the ID procedure is not perfect - e.g.,

people can sometimes obtain fake ID’s, and some

people will engage in bad behavior regardless of

being pre-identified — it remains a useful and

reasonable security measure for the ADLRO. And

the ID procedure is a very easy and simple proc-

ess for a prospective attendee to meet. A driver’s

license, a state 1.D. or other acceptable picture

identification is all that is necessary. If one does

not already own a driver's license, a state LD.

can be obtained in most cases by presenting a so-

cial security card, a birth certificate, and paying

a nominal! fee. Indeed, a driver’s license, state

I.D., or other acceptable picture identification, is

something people need for all sorts of everyday

activities, including for example: check cashing,

banking, and air travel.

App. 9

24. This Hearing Officer finds that al-

though the ID procedure may deprive a person of

his or her anonymity — indeed that is precisely

why the ID procedure has an effective deterrent

effect — that is not an especially significant in-

trusion because a person attending the hearing

would have their face seen by hearing partici-

pants in any event. Furthermore, the ADLRO as

a matter of policy does not distribute the sign-in

list to anyone, except in the event someone on

that list engages in unlawful activity or creates a

disturbance.

IV.__SUPPLEMENTAL CONCLUSIONS OF LAW

1. The ID procedure serves an important

governmental interest: namely, enhancing secu-

rity and avoiding disruptions at ADLRO admin-

istrative hearings.

2. This interest in enhancing security and

avoiding disruptions, and the means employed, is

unrelated to the content of the information to be

disclosed in the administrative proceeding.

3. There is no less restrictive way to fully

serve this important governmental interest in

enhancing security and avoiding disruptions at

ADLRO administrative hearings and inner-office

area, other than to continue with the ID proce-

dure. Although other measures can add to secu-

rity as well, there is no other less intrusive

means of achieving the unique deterrent effect

that arises out of depriving a person of his or her

anonymity. The ADLRO ID procedure is the least

intrusive means of achieving this unique deter-

rent effect.

App. 10

4. The ADLRO ID procedure is therefore

fully warranted, and does not impermissibly in-

terfere with a respondent's right to a public hear-

ing.

-_

Il. STANDARDS OF REVIEW

A. Judicial Review of Administrative Decisi

[FOFs] are reviewable under the

clearly .rroneous standard to deter-

mine if the agency decision was clearly

erroneous in view of reliable, probative,

and substantial evidence on the whole

record. Alvarez v. Liberty House, Inc.,

85 Hawai'i 275, 277, 942 P.2d 539, 541

(1997); HRS § 91-14(g)5).

(COLs] are freely reviewable to de-

termine if the agency’s decision was in

violation of constitutional or statutory

provisions, in excess of statutory au-

thority or jurisdiction of agency, or af-

fected by other error of law. Hardin v.

Akiba, 84 Hawai'i 305, 310, 933 P.2d

1339, 1344 (1997) (citations omitted);

HRS §§ 91-14(g)(1), (2), and (4).

“A COL that presents mixed ques-

tions of fact and law is reviewed under

the clearly erroneous standard because

the conclusion is dependent upon the

facts and circumstances of the particu-

lar case.” Price v. Zoning Bd. of Appeals

of City and County of Honolulu, 77 Ha-

waii 168, 172, 883 P2d 629, 633

(1994). ...

App. 11

Poef v. Hawai'i Labor Relations Board], 87

Hawaii [191,) 197, 953 P2d [569,] 573

{[(1998)}.

Curtis v. Board of Appeals, 90 Hawai‘i 384, 392-

93, 978 P.2d 822, 830-31 (1999).

An FOF or a mixed determination of law and

fact is clearly erroneous when (1) the record lacks

substantial evidence to support the finding or de-

termination, or (2) despite substantial evidence

to support the finding or determination, the ap-

pellate court is left with the definite and firm

conviction that a mistake has been made. See

Leslie v. Estate of Tavares, 91 Hawai‘i 394, 399,

984 P.2d 1220, 1225 (1999). “We have defined

‘substantial evidence’ as credible evidence which

is of sufficient quality and probative value to en-

able a person of reasonable caution to support a

conclusion.” Jd. (quoting State v. Kotis, 91 Ha-

wai'i 319, 328, 984 P.2d 78, 87 (1999)).

In re Wai'‘ola O Molokai, Inc., 103 Hawai'i 401, 421, 83

P.3d 664, 684 (2004) (quoting Jn re Water Use Permit

Applications, 94 Hawai'i 97, 118-19, 9 P.3d 409, 430-31

(2000) (some brackets added and some in original)).

B. Questions of Constitutional Law

“We answer questions of constitutional law

‘by exercising our own independent judgment

based on the facts of the case,’” and, thus, ques-

tions of constitutional law are reviewed on ap-

peal “under the ‘right/wrong’ standard.” State v.

Jenkins, 93 Hawai'i 87, 100, 997 P2d 13, 26

(2000) (citations omitted).

State v. Aplaca, 96 Hawai'i 17, 22, 25 P.3d 792, 797 (2001).

App. 12

Ill. DISCUSSION

In his supplemental brief, Freitas argues that the

hearing officer’s supplemental FOFs and COLs upholding

the ADLRO’s sign-in and identification procedure are not

supported by substantial evidence in the record and are

clearly erroneous. We disagree.

In Freitas, we invoked a three-faceted formulation for

determining whether a limitation on access permissibly

furthers the legitimate need to maintain “order and

dignity” in a public adjudicative proceeding: “[whether] the

regulation serve[s}] an important government interest;

[whether] the interest [is] unrelated to the content of the

information to be disclosed in the proceeding; and

(whether] there [is a] no less restrictive way to meet that

goal.” 104 Hawai'i at 489, 92 P.3d at 999 (quoting Brown &

Williamson Tobacco Corp. v. Fed. Trade Comm'n, 710 F.2d

1165, 1179 (6th Cir.1983) (citing United States v. O’Brien,

391 U.S. 367, 377 (1968))) (emphasis deleted). We hold (1)

that the ADLRO’s identification and sign-in procedure

serves an important government interest in ‘securing

ADLRO hearings, (2) that the security procedure is unre-

lated to the content of the information disclosed at ADLRO

hearings, and (3) that there is no less restrictive way to

meet the goal of securing ADLRO hearings. As such, we

hold that the ADLRO’s identification and sign-in proce-

dure does not impermissibly infringe upon Freitas’s

constitutional right to a public hearing.

At the hearing on the propriety of the ADLRO’s

identification and sign-in procedure, the Director adduced

evidence that the “ADLRO instituted [the] ID procedure as

a security measure to prevent unknown members of the

general public from entering the inner-office area.” The

App. 13

Director further demonstrated that the identification

procedure “provides a deterrent” to people engaging in

“unlawful, disruptive, or otherwise inappropriate behavior

while within the hearing and inner-office area.” The

Director elicited testimony from Chief Adjudicator Sakata

‘that the ADLRO identification procedure was established

to “provide a deterrent to inappropriate behavior.” The

hearing officer found that the identification procedure was

a “fundamental first[]step in the ADLRO’s security meas-

ures” and determined that such a finding was supported

by the testimony of the security expert Shimabuku and

the two psychology articles proffered by the Director.

In United States v. DeLuca, 137 F.3d 24 (1st Cir.1998),

the United States Court of Appeals for the First Circuit

held that the trial court’s requirement that trial spectators

present identification before entering the courtroom did

not violate the defendants’ rights to a public trial. In

DeLuca, a United States Marshall sua sponte established a

screening and identification procedure for each spectator

who wished to enter the courtroom in order to help offset

courtroom security risks. 137 F.3d at 32.

[I]n the circumstances presented here[,] we can-

not agree that prudent identification procedures

suitably focused at deterring would-be trial spec-

tators who may pose unacceptable risks — either

to the security of the courtroom or the integrity of

the factfinding process — need be held in abeyance

pending evidence of an actual attempt to influence

or harm a witness or juror in the case on trial.

Therefore, though we cannot endorse the unilateral

action by the United States Marshal, we hold that

it did not strip away the substantial deference due

the district cous subsequent assessment that

the screening procedures were warranted.

App. 14

Id. at 34-35. The First Circuit further stated that, “in our

view|,] an appellate court should be hesitant to displace a

trial court’s judgment call in such circumstances.” Id. at

34.

In the present matter, the Director explained that the

ADLRO’s identification and sign-in procedure is designed

to advance the substantial government interest of height-

ening security for the ADLRO’s hearings and its inner-

office area. We are thus “hesitant to displace [the ADLRO

hearing officer]’s judgment call in [these] circumstances.”

DeLuca, 137 F.3d at 34.

Similarly, in Williams v. State, 690 N.E.2d 162

(Ind.1997}, the Indiana Supreme Court held that court-

room security procedures requiring that each person who

was unknown to the officer at the door show identification

and sign in did not amount to “exclusion” of anyone and,

thus, did not implicate the right to public trial.

The security procedures required that each per-

son who was unknown to the officer show identi-

fication and sign in. Neither requirement

actively excludes anyone. The identification re-

quirement introduced a minor procedural hurdle

to gaining admittance to the trial by demanding

the production of some form of identification,

which is an item readily available to the general

public. ... In_sum, this simply is not a case of

partial or total closure of the proceedings to the

public and so the constitutional right to a public

trial is not implicated by the procedures as they

were used in this case.

Williams, 690 N.E.2d at 168-69. Although the Williams

court held that there was no constitutional violation, the

court went on to require that trial courts make findings in

App. 15

support of security measures imposed beyond those

customarily permitted.

Even where the measure does not amount to a

violation of the constitutional rights of the defen-

dant, when access to public proceedings is im-

peded, even slightly, the right to be free to walk

into court and assess our justice system in opera-

tion comes under threat. Any such restriction

must be imposed only with proper justification.

Accordingly, we require under our supervisory

powers that the court make a finding that spe-

cifically supports any measures taken beyond

what is customarily permitted that are likely to

affect unfettered access by the press and public

to the courtroom. The finding need not be exten-

sive, but must provide the reasons for the action

taken, and show that both the burdens and bene-

fits of the action have been considered. This ex-

ercise of supervisory powers applies to trials

conducted after the publication of this opinion.

The trial court in this case failed to provide

such a record... . The court made no findings as

to why the procedures were warranted.

Because the court did not provide the rea-

sons for its decision to authorize the procedures,

and because the record does not clearly substan-

tiate the need for these additional precautions,

the trial court’s condoning of use of the identifi-

cation procedures does not meet the standard we

announce today. As an abstract proposition, this

kind of procedure seems likely to produce both a

slight burden and a slight benefit. The taking of

names is perhaps intimidating for some, but the

practice also is likely to help control courtroom

behavior. Because it alerts spectators that the

court can identify them, it may discourage some

App. 16

who might otherwise have disrupted the proceed-

ing in the hope of remaining anonymous. Accord-

ingly, when considering this sort of procedure, a

court must weigh the prospective benefits to the

order and security of the courtroom with the

burdens to the defendant, the press, and the pub-

lic.

Id. at 169-70 (footnotes omitted). Consonant with the

Williams rationale, this court temporarily remanded the

present matter to the ADLRO for a hearing on Freitas’s

objections to the ADRLO’s identification and sign-in

procedure, and the hearing officer entered FOF's and COLs

supporting the procedure. Accordingly, the hearing officer

made findings that “specifically support{ ] any measures

taken beyond what is customarily permitted” in order to

“substantiate the need for these additional precautions|.}”

In United States v. Brazel, 102 F.3d 1120 (11th Cir.

1997), cert. denied, 522 U.S. 822 (1997), the United States

Court of Appeals for the Eleventh Circuit held that the

district court’s requirement that all persons entering the

courtroom provide identification did not violate the defen-

dants’ constitutional rights. “The [sjixth [a)mendment

right to a public trial is not absolute and must, on occa-

sion, give way to other rights, and interests.” Brazel, 102

F.3d at 1155 (quoting Waller v. Georgia, 467 U.S. 39, 45

(1984)). “[I]f the identification procedure can be said to

have imposed a closure at all, it was ‘partial,’ as all per-

sons wishing to enter the courtroom were allowed to do so

provided they identified themselves as required, and the

required identification was not especially arduous.”

We find no violation of the Constitution. The

trial judge implemented the identification proce-

dure based on her own observations for more

App. 17

than a week, confirmed by the prosecution, that

individuals had been coming into the courtroom

and fixing stares on the witnesses and possibly

government counsel. The court considered the al-

ternative proposed by defendants, but reasonably

found it infeasible. She did not believe that,

while presiding over the trial, she could assume

the responsibility to pick out individuals who

might be trying to influence the witnesses or

might otherwise pose a threat to trial partici-

pants. Given the specific problem that had arisen

and the limited nature of the remedy adopted, we

see no abuse of discretion in what was done.

Brazel, 102 F.3d at 1156.’ See also Bell v. Evatt, 72 F.3d

421, 433 (4th Cir.1995), cert. denied 518 U.S. 1009 (1996)

* The dissent seeks to distinguish DeLuca, Williams, and Brazel on

the basis that they are “cases addressing the sixth amendment right to

a public trial” and that, “[fijJnasmuch as this case concerns a quasi-

judicial administrative proceeding before the ADLRO, ... the defen-

dant’s Sixth Amendment right to a public trial in a criminal prosecution

is not implicated.” Dissenting opinion at 51-52 (emphases in original).

We are not persuaded. As discussed above, the three-faceted formula-

tion for determining whether a-limitation on access to a hearing

permissibly furthers the legitimate need to maintain “order and

dignity” in a public adjudicative hearing was taken directly from Brown

& Williamson Tobacco Corp., 710 F.2d at 1179. See Freitas I, 104

Hawaii at 489, 92 P.3d at 999. Brown & Williamson Tobacco Corp. was

cited with approval in Detroit Free Press v. Ashcroft, 195 F.Supp.2d 937,

945 n. 8 ‘E.D.Mich.2002), upon which we expressly relied in Freitas I.

See Freitas I, 104 Hawai'i at 488-89, 92 P.3d at 998-99. And Detroit Free

Press, which involved a quasi-judicial administrative deportation

hearing, expressly relied on Free-Enter. Co. v. Superior Court of

California, 478 U.S. 1 (1986), “which held that the right of criminal

defendants to public proceedings resides in the Sixth Amendment... .”

See Freitas I, 104 Hawai‘ at 486, 488, 92 P.3d at 996, 998. It is incon-

ceivable to us that Freitas’s constitutional right to a public hearing in

an administrative driver’s license revocation hearing is broader than a

criminal defendant’s constitutional right to a public trial.

App. 18

(holding that trial court’s prevention of ingress and egress

to courtroom during witness testimony did not violate

public-trial right where “trial judge was merely maintain-

ing order in his courtroom and ensuring a non-disruptive

atmosphere” for pxrticipants, press, and public).

In the present matter, the governmental interest at

stake is the security of ADLRO hearings, which is obvi-

ously unrelated to the hearings’ substantive content. In

any event, Freitas-does not argue that the ADLRO hearing

officer erred in applying that portion of the three-part

formulation outlined in Freitas [. 104 Hawai'i at 489, 92

P.3d at 999.

The ADLRO identification and sign-in procedure also

satisfies the third prong of the Freitas I formulation, to

wit, that there be no less restrictive way to meet the

ALDRO’s goal of securing their hearings. See 104 Hawai‘

at 489, 92 P.3d at 999. The Director adduced substantial

evidence that the costs associated with implementing

other security procedures — i.e., metal detectors, x-ray

machines, additional security guards ~ were not fiscally

feasible. Further to the foregoing, the hearing officer found

that such additional security measures would not obviate

the efficacy of the ADLRO’s current identification and

sign-in procedure in any event. The security expert,

Shimabuku, testified that th» ADLRO’s identification

procedure provided “a separate and beneficial deterrent

effect” to any additional security procedures. Freitas’s

contention that “the ADLRO is part of the Judiciary and[]

if the Judiciary can afford to put metal detectors and

deputy sheriffs in the courts, it can certainly afford to put

a metal] detector and/or a deputy sheriff in the ADLRO[,]”

is both unsupported and unpersuasive. Although Freitas

further postulates that “/aJnything that discourages public

App. 19

participation in the functioning of government is intoler-

able if the interests of the government can be achieved by

alternative means,” (emphasis in original), recommenda-

tions contained within the Security Assessment’ specifi-

cally concluded that “[a)dditional security measures will

be costly, create inconvenience, and increase workload for

the receptionist.” The hearing officer’s conclusion that

there is no less restrictive means of securing ADLRO

hearings is supported by substantial evidence. Conse-

quently, the inquiry into whether the identification proce-

dure as implemented at ADLRO hearings is the least

restrictive means of achieving the goal of providing secu-

rity at hearings has been satisfied.

The ADLRO’s identification and sign-in procedure is

reasonably tailored to meet the security needs of ADLRO

hearings. Furthermore, the Director satisfied the burden

of establishing the reasonableness of the ADLRO sign-in

and identification procedure. The ADLRO’s procedure in

no way, in and of itself, deprives parties of a public hear-

ing. Therefore, we hold that the hearing officer’s decision

upholding the sign-in and identification procedure at

ADLRO hearings is supported by substantial evidence and

that Freitas’s constitutional right to a public hearing was

not impermissibly infringed.

/s/ Ronald T.Y. Moon

/s/ Steven H. Levinson

/s/ Paula A. Nakayama

/s/ James E. Duffy, Jr.

* The Supplemental Record on Appeal! contains a written Security

Assessment prepared by the Department of Public Safety for the

ADLRO at the ADLRO’s request, which was received by the ADLRO on

May 30, 2001.

App. 20

PARTIAL OPINION OF THE COURT BY ACOBA, J.

A majority of this court has decided that the sign-in

and identification procedure of the Administrative Driver’s

License Revocation Office (ADLRO) was valid. Therefore,

we turn to the merits of Freitas’s appeal.

IV.

We hold that (1) the administrative hearing proce-

dures of the ADLRO did not violate Freitas’s due process

rights and (2) the district court did not err in failing to

reverse the hearing officer’s decision which was based on

prior rulings of the district court, which, by their very

nature, are unpublished and have no precedential effect.

Based on the foregoing, we affirm the judgment of the

District Court of the First Circuit, Honolulu Division * (the

court) affirming the decision of the ADLRO, and thereby

sustaining the revocation of Freitas’s driver’s license.

V.

As mentioned in the prior remand, see Freitas I, 104

Hawaii 483, 92 P.3d 993, on January 16, 2002, Freitas

was arrested for driving under the influence of an intoxi-

cating liquor (DUI). On January 17, 2002, he was issued a

notice of license revocation for DUI. On January 23, 2002,

Frietas’s driver’s license revocation was sustained by a

review officer of the ADLRO. On January 30, 2002, Freitas

requested a hearing.

* The Honorable Fa’auuga To’oto’o presided over this matter.

\

App. 21

When the hearing began, the hearing officer admitted

into evidence all of the documents that were contained in

the ADLRO case file. The hearing officer denied counsel’s

request to subpoena ADLRO Chief Adjudicator Ronald

Sakata to testify about the identification procedure which

required anyone attending an ADLRO hearing to sign in

and produce picture identification. The hearing officer did

not permit a hearing on this matter.

After raising the above requests, counsel asked the

hearing officer to follow a hearing procedure as set forth in

a written document presented by him.’ The hearing officer

* The procedure provided as follows:

The arrestee hereby requests that the following procedure be

- followed at this hearing because the administrative revocation

scheme contemplates that this procedure will be followed pursu-

ant to [Hawai'i Revised Statutes} H.R.S. § 291E-38:

1. The hearing officer receives into evidence only the

sworn statements described in H.R.S. § 291E-36(a)(1) and

(2) and competent evidence of any prior alcohol contacts

(H.R.S. § 291E-38(g) and (h));

2. If the hearing officer is satisfied that the three

prong test has not been met, the hearing officer rescinds the

revocation and the hearing is over (H.R.S. § 291E-38(e)); the

three prong test is (1) reasonable suspicion to stop, (2) prob-

able cause to believe arrestee DUI, and (3) proof of DUI -

(Kernan v. Tanaka, 75 Haw. 1, 30, 856 P2d 1207, 1222

(1993));

3. If the hearing officer is satisfied that the three

prong test has been met, the hearing officer so finds and the

arrestee is given an opportunity to offer evidence to refute

any part of the three prong test or any prior alcohol contact

(Kernan v. Tanaka, 75 Haw. 1, 30, 856 P.2d 1207, 1222

(1993)),

4. If there is any other competent evidence which has

become relevant by virtue of the arrestee’s evidence, whether

documents in the file, through witness, or otherwise, the

(Continued on following page) 6

App. 22

declined counsel’s offer; instead the hearing officer indi-

- cated she would 1) allow counsel to raise any issues; 2)

start calling witnesses; then 3) proceed with arguments.

[Counsel]: And if you're not willing to follow

that procedure, I wish to know what procedure is

going to be followed.

[Hearing Officer]: Well, J haven't reviewed

the request, but I will note that the statute does

allow this [hJearing [o]fficer to conduct and con-

vrol the course of this hearing and the procedure

that I would follow and am going to follow, coun-

sel, is I’m going to allow you to raise any issues

that you have, as you are doing now, regarding

this case, however, regarding the facts and cir-

cumstances of this case. Then, I'm going to start

calling the witnesses.

We, usually, start with the arresting officer[ ]

... (t}hen I will proceed to hear your arguments

after that.

hearing officer may receive such evidence (H.R.S. § 291E-

38(d)(3));

5. The hearing officer makes findings and either re-

scinds or upholds the revocation (H.R.S. § 291-E38(d)(6));

6. If the revocation is upheld, the hearing officer

makes findings as to any prior alcohol contacts and the con-

sequences thereof (H.R.S. § 291E-41(b)).

Pursuant to H.R.S. § 291E-38(a), the purpose of this hearing is “to

review the {administrative review] decision,” not conduct a de

novo hearing. Thus, the hearing officer has no power to increase

the revocation period set at the administrative review.

If the hearing officer is unwilling to follow this procedure, the

hearing officer is hereby requested to state exactly what procedure

will be followed, which party has the burden of proof, and whether

and when the burden of producing evidence ever shifts in the

course of the hearing.

App. 23

[Counsel]: [Who has the burden of proof? Does

the burden of producing evidence ever shift in this

case? These are all questions that are very important

to arrestees in determining how to proceed and when

and how to offer evidence.

{Hearing Officer]: You may proceed, counsel,

with you putting on your case, if you want to examine

the officers or not, you are entitled to waive, as well.

[Counsel]: So you will not follow your [sic] pro-

cedure?

[Hearing Officer]: No. I haven't had time to even

read it, so, no.

[Counsel]: Well, I ask that you read it. I think

I’m required to do that.

[Hearing Officer]: I don’t believe so. J believe the

statute does allow me to conduct the course of this

hearing, which I do. So, 'm asking now, would you

- like to examine your witnesses, and put any other is-

sues on the record at this time?

(Emphases added.)

The arresting officer, Officer Lorica, then testified that

at the time of Freitas’s arrest, she read to him from the

driver’s implied consent form entitled, “Administrative

Revocation of Driver’s License and Motor Vehicle Registra-

tion Form.” This form referred to HRS chapter 286, Part

XIV (Supp.2000) (repealed effective January 1, 2002, and

replaced with HRS chapter 291E, Part III).

App. 24

The Intoxilyzer operator failed to appear to testify. As

a result, the hearing officer excluded an Intoxilyzer test ‘

result obtained from Freitas. After the test result was

excluded, counsel objected to the ADLRO asserting juris-

diction, maintaining that a “valid breath or blood test or

refusal is a jurisdictional requirement for administrative

revocation.” Counsel also argued that the implied consent

form the police read to Freitas referred to Chapter 286,

Part XIV, which had been repealed, and that the Notice of

Administrative Revocation failed to explain the distinction

between the administrative revocation and criminal

suspension or revocation as required by HRS § 291£-

34(aX(2) (Supp.2002).

The hearing officer sustained the revocation of

Freitas’s driver’s license pursuant to HRS § 291E-38(e) in

a written decision dated March 13, 2002. But, the hearing

officer found that Freitas had not been properly informed

“of the sanctions and consequences of the law as it was in

effect on the day of his arrest(,)” apparently because the

implied consent form referred to a repealed statute. The

hearing officer determined in effect, that the proper

remedy was to strike Freitas’s Intoxilyzer test result.

Based on other evidence, the hearing officer determined

that Freitas operated his vehicle while DUI:

1. There existed reasonable suspicion for

Officer Lorica to stop the vehicle operated by

{Freitas}.

* An intoxilyzer test measures an individual’s blood alcohol

concentration by a breath sample. [ge v. Admin. Dir. of the Courts, 93

Hawaii 133, 134 n. 2, 997 P-2d 59, 60 n. 2 (App.2000)

App. 25

2. There existed probable cause to believe

that [Freitas] operated the vehicle while under

the influence of an intoxicant.

3. That irrespective of [Freitas’s] breath test

result, the remainder of the record nevertheless

reflects by a preponderance of the evidence, that

[Freitas] operated the vehicle while under the in-

fluence of an intoxicant. ...

4. [Freitas’s} five (5) year driving record

preceding the date of arrest (January 17, 2002)

shows no alcohol enforcement contact or drug en-

forcement contact, as defined in HRS § 291E-1.

5. Pursuant to HRS § 291E-41('], the period

of revocation that may be imposed on [Freitas] is

a minimum of three months up to a maximum

period of one year.

Therefore, it is the decision of the director,

by the undersigned Hearing Officer, that

[Freitas’s] driver’s license be revoked for a period

of three months, from February 17, 2002 through

and including May 16, 2002.

(Emphasis added.)

” HRS § 291E-41 states in relevant part,

(b) The periods of administrative revocation with respect to a

license and privilege to operate a vehicle, and motor vehicle registration

if applicable, that shal] be imposed under this part are as follows:

(1) A minimum of three months up to a maximum of one

year revocation of license and privilege to operate a vehi-

cle, if the respondent’s record shows no prior alcohol en-

forcement contact or drug enforcement contact during

the five years preceding the date the notice of adminis-

trative revocation was issued.

App. 26

The findings in the decision cited to unpublished

district court decisions in other ADLRO cases. Freitas

appealed to the court.

On August 13, 2002, the court affirmed the hearing

officer by a written decision." A separate judgment filed on

the same day stated that, “[pjursuant to the Decision and

Order Affirming Administrative Revocation entered herein

on August 13, 2002, Administrative Revocation is af-

firmed.”

The identification sign-in procedure aside, on appeal,

Freitas essentially argues that the court erred (1) in

impliedly ruling (a) that the administrative hearing proce-

dure did not deny Freitas his rights to due process of law

under the Fifth and Fourteenth amendments of the United

States Constitution” and Article I, §5 of the Hawai'i

* The district court's August 13, 2002, written decision states:

The (pletition for [j)udicial [rjeview in this case came on for hear-

ing on May 3, 2002. (Counsel] appeared for the Petitioner, who

was not present. Respondent did not appear. The [cjourt consid-

ered the submissions and arguments of counsel and the records

and files herein.

The {cjourt finds none of the arguments raised by counsel suffi-

cient to warrant reversal, and the |cjourt find no reversible error

in the record.

For these reasons, the Director's decision is (affirmed).

* The Fifth Amendment states in relevant part that “[nlo person

shall ... be deprived of life, liberty, or property, without due process of

law... .* (Emphasis added.)

The Fourteenth Amendment states in relevant part that “[n)c State

shall ... 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.” (Emphasis added.)

App. 27

Constitution” or (b) the mandate of Chapter 291E, Part

IIl, and (2) in failing to reverse the hearing officer for

citing to unpublished district court ADLRO decisions to

justify her decision.

VI.

“Review of a decision made by a court upon its review

of an administrative decision is a secondary appeal. The

standard of review is one in which this court must deter-

mine whether the court under review was right or wrong

in its decision.” Soderlund v. Admin. Dir. of the Courts, 96

Hawai'i 114, 118, 26 P.3d 1214, 1218 (2001) (internal

quotation marks, citations and brackets omitted) (vacating

and remanding the district court’s amended decision

affirming the revocation of motorist’s driver's license for

driving under the influence of alcohol). HRS § 291E-40

(Supp.2002) “goverius judicial review by the district court

of an administrative revocation of a driver's license by the

Director.”

” Article I, § 5 of the Hawai'i Constitution states that “[njo person

shal] be deprived of life, liberty or property without due process of law,

nor be denied the equal protection of the laws, nor be denied the

enjoyment of the person's civil rights or be discriminated against in the

exercise thereof because of race, religion, sex or ancestry.” (Emphasis

added)

" HRS § 291E-40 is the recodified version of HRS § 286-260 (1993).

In provision (a), “arrestee” was substituted with “respondent” and

“offense” was substituted with “incident.” Section (d) was added to the

new version.

" HRS § 291E-40 states in relevant part as follows:

Judicial review; procedure. (a) If the director sustains the

administrative revocation after an administrative hearing, the re-

spondent ... may file a petition for judicial review within thirty days

after the administrative hearing decision is mailed. The petition

(Continued on following page)

App. 28

Vill.

On appeal we review findings of fact under the clearly

erroneous standard. Child Support Enforcement Agency v.

Roe, 96 Hawai'i 1, 11, 25 P.3d 60, 70 (2001). Findings of

fact are “cleariy erroneous when the record lacks substan-

tial evidence to support the finding.” Jd. (quoting In re

Water Use Permit Applications, 94 Hawai'i 97, 119, 9 P.3d

409, 431 (2000)). “‘Substantial evidence’ is credible evi-

dence which is of sufficient quality and probative value to

enable a person of reasonable caution to support a conclu-

sion.” Jd. (brackets, internal quotation marks, and citation

omitted); see Leslie v. Estate of Tavares, 91 Hawai'i 394,

399, 984 P.2d 1220, 1225 (1999). Findings of fact are also

clearly erroneous when “despite substantial evidence to

support the finding . . . , the appellate court is left with the

definite and firm conviction in reviewing the entire evi-

dence that a mistake has been made.” Child Support

Enforcement Agency, 96 Hawai'i at 11, 25 P3d at 70.

shall be filed with the clerk of the district court in the district in

which the incident occurred and shal] be accompanied by the re-

quired filing fee for civil actions... .

(c) The sole issues before the court shall be whether the di-

rector:

(1) Exceeded constitutional or statutory authority;

(2) Erroneously interpreted the law;

(3) Acted in an arbitrary or capricious manner;

(4) Committed an abuse of discretion; or

(5) Made a determination that was unsupported by the

evidence in the record.

(d) The court shall not remand the matter back to the direc-

tor for further proceedings consistent with its order.

App. 29

“Hawai'i appellate courts review conclusions of law de

novo, under the right/wrong standard.” Leslie, 91 Hawai'i

at 399, 984 P.2d at 1225 (citations omitted).

IX.

As mentioned, Freitas asserts that he was deprived of

due process because the clear mandate of HRS chapter

291E was violated. His subsidiary points appear to be (1)

that the revocation law, HRS chapter 291E, Part III, does

not expressly set forth a specific procedure to be followed

at an administrative hearing, (2) that in seeming contra-

diction, “HRS § 291E-38(a) provides [that] . . . the function

of the administrative hearing is to ‘review the [administra-

tive review] decision,’ but the person arrested for DUI may

call witnesses and offer witnesses,” suggesting it is a de

novo hearing, (3) the plain language of HRS § 291E-

37(cX3) and HRS § 291E-38(h) does not authorize receipt

of the entire ADLRO file or police report into evidence, (4)

HRS chapter 291E, Part III, requires that there be a valid

chemical test or refusal for the ADLRO to assert jurisdic-

tion.

As to his subsidiary arguments (1) and (2), Freitas

proposed a procedure, which he argued would not offend

due process ” and would reconcile the “apparent conflict”

he perceived between a de novo hearing “ and the hearing

" See supra note 5. Of course, there is nothing to prevent a hearing

officer from adopting such a procedure or the legislature from enacting

it.

“ A hearing de novo is defined as follows: “Generally, a new

hearing or a hearing for the second time, contemplating an entire tria!

in same manner in which matter was originally heard and a review of

previous hearing. [Generally ojn [a] hearing ‘de novo’ court hears

(Continued on following page)

App. 30

officer’s role of administrative review. In Desmond v.

Admin. Dir. of the Courts, 91 Hawai'i 212, 219, 982 P.2d

346, 353, (App.1998) fhereinafter, Desmond I], rev'd on

other grounds, 90 Hawai'i 301, 978 P.2d 739 (1999) fhere-

inafter, Desmond II\, the motorist proposed a hearing

procedure almost identical to the procedure supported by

Freitas in this case.“ The Intermediate Court of Appeals

(ICA) held, however, that the hearing officer “did not err in

following her procedure rather than the procedure pro-

posed by [the motorist)” and rejected contentions similar

to those raised by Freitas. Jd. It was concluded “that the

applicable law does not require the [hjearing [o)fficer to

follow the procedure proposed by Desmond.” Jd. at 218,

982 P.2d at 352. On certiorari, this court affirmed the ICA,

except on a matter not relevant to this issue. See Desmond

IT, 90 Hawai'i 301, 978 [P.2d 739.

We observe that procedural due process requires that

a person have an “opportunity to be heard at a meaningful

time and in a meaningful manner.” Farmer v. Admin. Dir.

of the Courts, 94 Hawai'i 232, 238, 11 P.3d 457, 463 (2000).

This court has said that providing a presuspension revoca-

tion hearing “sufficiently assure{d) reliable results and

provideld] adequate due process.” Jd. at 239, 11 P.3d at

464. Freitas was afforded such a hearing on March 8,

2002, where witnesses were called and he was represented

by counsel.” The ADLRO program has been examined and

matter as court of origina] and not appellate jurisdiction.” Black's Law

Dictionary 649 (5th ed. 1979).

“ The counsel representing Freitas in the present case also

represented the petitioner in the Desmond case.

” HRS § 291E-38 sets forth the requirements of the hearing and

states in relevant part:

(Continued on following page)

App. 31

found not to violate due process. Kernan, 75 Haw. at 25-32,

856 P.2d at 1219-22; Farmer, 94 Hawai'i at 238, 11 P.3d at

463; Desmond I, 91 Hawai'i at 220, 982 P.2d at 354. In

addition, the hearing officer advised counsel of the proce-

dure that she was going to follow consistent with the

(b) The hearing shall be held by the director, as close to the

location where the notice of administrative revocation was issued

as practical.

(c) The respondent may be represented by counsel and, if

the respondent is under the age of eighteen, must be accompanied

by a parent or guardian.

(d) The director shall conduct the hearing and have author-

ity to:

(1) Administer oaths and affirmations;

(2) Examine witnesses take testimony;

(3) Receive and determine the relevance of evidence;

(4) Issue subpoenas;

(5) Regulate the course and conduct of the hearing; and

(6) Make a final ruling.

(g) The respondent's prior alcohol and drug enforcement

contacts shall be entered into evidence.

(h) The sworn statements provided in section 291E-36 shall

be admitted into evidence. The director shall consider the sworn

statements in the absence of the law enforcement officer or other

person. Upon written notice to the director, no later than five days

prior to the hearing, that the respondent wishes to examine a law

enforcement officer or other person who made a sworn statement,

the director, the director shal] issue a subpoena for the officer or

other person to appear at the hearing. Personal service upon the

law enforcement officer or other person who made a sworn state-

ment shal] be made no later than forty-eight hours prior to the

hearing time. If the officer or other pe-son cannot appear, the offi-

cer or other person at the discretion of the director, may testify by

telephone.

(Emphasis added.)

App. 32

caution that “[iJt is advisable that, at the commencement

of the administrative hearing, the (hlearing [olfficer

inform the parties what procedure he or she will follow.”

Desmond I, 91 Hawai'i at 219, 982 P.2d at 353. In light of

the foregoing, we do not believe reversible error was

committed and, thus, decline Freitas’s invitation to over-

rule Desmond I.

We observe, however, as previously noted in the facts,

that the hearing officer’s procedure consisted of ascertain-

ing issues raised by Freitas and then proceeding to the

calling of witnesses starting with the arresting officer. In

Desmond I, the ICA pointed out that in Kernan, 75 Haw. at

30, 856 P.2d at 1222, this court directed that the grounds

for revocation must first be established before the arrestee

proceeds with his or her evidence.” 91 Hawai'i at 218, 982

P.2d at 352. Accordingly, insofar as the hearing officer may

have conveyed the suggestion that Freitas was to “raise

{his} issues” at the beginning of the hearing, it should be

made clear that an arrestee cannot be called on to respond

" In Desmond I, the ICA, quoting Kernan, said:

The arrestee does not have to present any evidence until the

reviewing officer determines that sufficient grounds for the

revocation exist. Thus, the police have the initial burden to

prove that: (1) reasonable suspicion existed to stop the vehi -

cle; (2) probable cause existed to believe the arrestee was

driving under the influence; and (3) by a preponderance of

the evidence, the arrestee did in fact driye under the influ-

ence. Only after these burdens have been met does the ar-

restee carry any burden of contrary proof.

Kernan establishes that the police have the initial burden of prov-

ing certain facts before the arrestee bears burden of “contrary

proof.”

91 Hawai'i at 218, 982 P.2d at 352 (emphases added).

App. 33

or to “raise any issues” before the initial burden of proof

with respect to revocation is satisfied.

X.

As to Freitas’s third argument, HRS § 291E-37(c)

(Supp.2002) sets forth the matters the administrative

officer “shall consider” in conducting the administrative

review. HRS § 291E-37(c) states in pertinent part that

“[ajny sworn or unsworn written statement or other

written evidence provided by the respondent [and] ...

[t]he sworn statement of any law enforcement officer or

other person or other evidence or information required by

section 291E-36”" shall be considered. In Desmond I, the

” HRS § 291E-36 provides in relevant part: "

Documents required to be submitted for administrative re-

view; sworn statements. (a) Whenever a respondent has been ar-

rested for a violation of section 291E-6) and submits to a test that

establishes: the respondent's alcohol concentration was .08 or

more; the presence, in the respondent's blood or urine, of any drug

that is capable of impairing the respondent's ability to operate a

vehicle in a careful and prudent manner; or whenever a respon-

dent has been involved in a collision resulting in injury or death

and a blood or urine test performed pursuant to section 291E-21

establishes that the respondent's alcohol concentration was 08 or

more establishes the presence in the respondent's bleod or urine

of any drug that is capable of impairing the respondent's ability to

operate a vehicle in a careful and prudent manner, the following

shall be forwarded immediately to the director:

(1) A copy of the arrest report or the report of the law en-

forcement officer who issued the notice of administra-

tive revocation to the person involved in a collision

resulting in injury or death and the sworn statement of

the arresting law enforcement officer or the officer who

issued the notice of administrative revocation, stating

facta{.)

(Emphases added.)

App. 34

ICA disagreed with contentions similar to those raised by

Freitas. The ICA stated that “the [hjearing [o]fficer must

exclude from the record only the following: (a) all unsworn

statements (except the arrest report) of law enforcement

officials who do not appear to testify; and (b) all other

evidence that is both irrelevant and prejudicial.” 91

Hawai'i at 220, 982 P.2d at 354. The ICA stated that “[aJn

agency should receive all evidence which is competent,

relevant and material, regardless of its weight, and a

refusal to hear such evidence can constitute a denial of

due process.” Id. 3

Freitas has failed to demonstrate how admitting the

entire ADLRO file and police report contravenes the

administrative revocation statute, and violates due proc-

ess. We cannot agree with his argument regarding an

alleged inconsistency between HRS § 291E-37(c\3) and

HRS § 291E-38(h).” We note that admission of the ADLRO

file and police report may be barred if irrelevant or preju-

dicial. Freitas has not provided any evidence that the

admission of the entire record or the police report was

irrelevant or prejudicial.

” Freitas argues that HRS § 291E-37(cX3), pertaining to docu-

ments that must be forwarded to the administrative director of the

courts upon an arrest for DUI, is inconsistent with HRS § 291E-38(h),

mandating that sworn statements shall be admitted into evidence. We

do not perceive any inconsistency because HRS § 291E-38 does not

prohibit the admission of a police report or the entire ADLRO file.

Moreover, the fact that HRS § 291E-37(h) refers only to sworn state-

ments provided for in HRS § 291E-36 and not police reports, does not

necessarily indicate a legislative intent to prohibit police reports from

admission into evidence at an administrative hearing, assuming their

relevance and non-prejudicial nature. See Desmond II, 90 Hawai'i at

301-02, 978 P.2d at 739-40 (holding that the only evidence a hearing

officer must exclude are (a) unsworn statements and (b) irrelevant and

prejudicial evidence).

App. 35

Furthermore, although the plain language of the

statute states that an “arrest report” shall be considered,

legislative history fails to provide guidance in defining this

term. While the hearing officer was not required by

statute to admit the police report for her review, we cannot

say the hearing officer reversibly erred when she did so.

Freitas does not specify which items received in evidence,

including the police report, were irrelevant or prejudicial.”

XI.

As to his fourth argument, Freitas contends that

because he was not properly informed as to the “distinc-

tion between an administrative license revocation and a

license suspension in a criminal DUI case ... as required

by H.R.S. § 291E-33(a\(2),” he should be entitled to resto-

ration of his driving privileges. In this regard, Freitas

asserts that “the legislature did not intend that the police

may forego entirely the reading of the implied consent law

so long as they can provide a sworn statement showing

that the person was under the influencel,] applying the

subjective test of H.R.S. § 291E-61(a)(1).” In this case, the

hearing officer refused to admit the intoxilyzer results. We

believe this is an adequate safeguard in the situation

* In Miller v. Tanaka, 80 Hawai'i 358, 910 P.2d 129 (App. 1995),

cert. denied, 80 Hawai'i 357, 366-67, 910 P.2d 128, 137-138 (1996), the

petitioner similarly “objected to ‘admitting all the documents in the file’

but failed], on appeal, to identify what items in the ‘file’ were objec-

tionable.” Jd. As in the present case, the hearing officer received into

evidence all of the documents contained in the case file and made them

part of the record. Counsel objected. The ICA affirmed the hearing

officer’s decision. It reasoned that “{[HRS § 291E-38(dX3)} does not

otherwise limit the discretion of the Director in determining what

evidence is relevant.” Id. at 366, 910 P.2d at 137.

App. 36

where the police fail to adequately notify the defendant of

the implied consent law.

Nowhere is it indicated that notice of the implied

consent law was intended to act as a jurisdictional prereq-

uisite to a license revocation hearing. Rather, notice was

required to inform motorists of the consequences of agree-

ing or refusing to consent to a DUI test. See State v.

Garcia, 96 Hawai'i 200, 208, 29 P.3d 919, 927 (2001)

(Nakayama, J. dissenting, joined by Ramil, J.) (reiterating

the exclusionary rule that remedy for violation of implied

consent rule was exclusion of intoxilyzer test); State v.

Wilson, 92 Hawai'i 45, 49, 987 P.2d 268, 272 (1999) (Naka-

yama, J. dissenting, joined by Ramil, J.) (announcing

exclusionary rule and holding that implied consent law

was intending to protect the rights of the driver “to enable

the driver to knowingly and intelligently consent to or

refuse a cheraical alcohol test”).

XII.

Finally, Freitas contends that the district court erred

in failing to reverse the hearing officer’s decision because

the hearing officer cited te unpublished district court

ADLRO decisions. See Kem. v. Gaddis, 91 Hawai'i 200,

204 n.4, 982 P.2d 334, 338 n.4 (1999) (clarifying that

“decision and orders issued in unrelaied ... cases that

were not reviewed on appeal and addressed in published

decisions have no precedential value”). Freitas relies on

Chun v. Bd. of Trustees of the Employees’ Ret. Sys., 92

Hawai'i 432, 446, 992 P2d 127, 141 (2000) (citations

omitted) which stated that, “[a]lthough this jurisdiction

has yet expressly to articulate the rule, other jurisdictions

App. 37

have adopted the position that unpublished decisions of

trial courts have no precedential value.”

In opposition, the State argues that regardless of

whether the court cited to unpublished or published trial

court decisions, “the only time reversal of a lower court

decision is warranted is when the legal result or position

adopted by the lower court is found to be erroneous as a

matter of law.” We agree with this proposition. Cf Poe v.

Hawai'i Labor Relations Bd., 87 Hawai'i 191, 197, 953 P.2d

569, 575 (1998) (holding that if upon review the circuit

court’s decision is correct, the circuit’s court's decision “will

not be disturbed on the ground that it gave the wrong

reason for its ruling”); Delos Reyes v. Kuboyama, 76

Hawai'i 137, 140, 870 P-2d 1281, 1284 (1994) (holding that

appellate court may affirm grant of summary judgment

based on any ground appearing in the record, even if

circuit court did not rely on it).

In reviewing the hearing officer’s decision, it appears

that the hearing officer cited to a number of unpublished

district court decisions. However, inasmuch as the hearing

officer’s decision did not involve any reversible error, the

court did not reversibly err when it did not reverse the

hearing officer’s decision.

XIII.

For the foregoing reasons, the court’s August 13, 2002

judgment affirming the administrative revocation of

Freitas’s driver's license, is affirmed.

On the briefs: /s/ Ronald T.Y. Moon

Earle A. Partington /s/ Steven H. Levinson

for petitioner-appellant. /s/ Paula A. Nakayama

/s/ James E. Duffy, Jr.

App. 38

Girard D. Lau, /s/ James E. Duffy, Jr.

Deputy Attorney General,

State of Hawai'i

for respondent-appellee.

DISSENTING OPINION BY ACOBA, J.

I respectfully dissent as to the partial majority opin-

ion in Part III, upholding the [D procedure of the Adminis-

trative Driver’s License Revocation Office (ADLRO). The

ID procedure constituted an unconstitutional limitation on

Freitas’s right to a public hearing. The partial opinion in

Part Ill, sanctioning as it does a sign-in procedure at

public hearings, will have a deleterious and potentially

inhibiting effect on the right to attend similar hearings

freely and openly and without needless restriction, but

more troubling, it diverts focus in any particular case from

measures actually aimed at preventing disruptions and

ensuring safety. I would hold that Freitas’s hearing should

have been open without the restrictions imposed by the

ADLRO procedure and order that future hearings be so

conducted subject only to security measures previously

identified by the Department of Public Safety (DPS) that

are appropriate.

I.

First, in my view, the essential supplemental findings

of the ADLRO hearing officer, including the reference to

the budget capabilities of the ADLRO, see infra page 45,

are not supported by substantial evidence. In the absence

of substantial evidence, the findings were clearly errone-

ous and the conclusions from which they were derived,

wrong. Second, assuming arguendo there was substantial

evidence, the record gives rise to a definite and firm

App. 39

conviction that a mistake was made. Third, the hearing

officer did not apply the test adopted in Freitas v. Admin.

Dir. of the Courts, State of Hawai'i, 104 Hawai'i 483, 92

P.3d 993 (2004) fhereinafter, Freitas I), correctly and, thus,

committed reversible error in her legal conclusion. On the

grounds set forth herein, a person exercising reasonable

caution would not conclude that the evidence submitted

was of sufficient quality so as to support the conclusion

that the ADLRO ID procedure prevents disruption of

hearings, and is the least restrictive manner of imple-

menting security. Finally, the cases relied upon by the

majority to uphold the ID procedure concern the sixth

amendment right to a public trial, and, hence, are distin-

guishable and inapplicable.

Ii.

This court previously held inter alia, that “because

ADLRO hearings are quasi-judicial administrative hear-

ings, due process requires that the hearings be public, and

... Freitas was entitled to a hearing on his objections to

the ADLRO sign-in and identification procedure limiting

public access to his hearing.” Freitas J, 104 Hawai'i at 483-

84, 92 P.3d at 993-94. Thus, on June 16, 2004, this court

remanded this case temporarily to the ADLRO to afford

Freitas a hearing on his objections to the ID procedure

that limited public access to his hearing. Id. at 484, 92

P.3d at 994. The hearing was held on July 14, 2004 at the

ADLRO offices. Following remand, the ADLRO submitted

supplemental conclusions of law and an order on the

public hearing issue.

App. 40

On behalf of the ADLRO, the deputy attorney general

called two witnesses, Lloyd Shimabuku, security consult-

ant to several Waikiki hotels and special agent with the

state Department of the Attorney General, and Ronald

Sakata, Chief Adjudicator of the ADLRO. Respondent-

Appellee Administrative Director of the Courts, State of

Hawai'i (Director) also submitted two articles: “A Situa-

tionist Perspective on the Psychology of Evil: Understand-

ing How Geod People are Transformed Into Perpetrators,”

by Phillip G. Zimbardo and “Identity and Anonymity:

Some Conceptual! Distinctions and Issues for Research,” by

Gary T. Marx.

Freitas’s counsel] called four witnesses, Dr. Reneau

Charlene Ufford Kennedy, psychologist, Mr. R. Patrick

McPherson, attorney, Ms. Lois Perrin, Director of the

American Civil Liberties Union, Hawai'i, and Mr. Michael

Nakamura, retired Chief of the Honolulu Police Depart-

ment.

The Record on Appeal also contains a written security

assessment prepared by the Department of Public Safety

(DPS) for the ADLRO entitled, “Security Assessment, The

Judiciary, Administrative Driver’s License Revocation

Office, 3875 South King Street” (the Security Assessment).

ITl.

Pertinent here, Freitas contends in his supplemental

brief that (1) “the hearing officer ignored all evidence

contrary to her preconceived determination to uphold the

App. 41

ADLRO sign-in procedure” and (2) the hearing officer’s

findings of fact are clearly erroneous and her conclusions

of law are contrary to established law. To these contentions

Appellee essentially responds that the supplemental

findings and conclusions are not contrary to the evidence

or the law.’

Any restriction on the right to a public hearing must

comport with the three-part test adopted in Freitas I:

[Tihat the regulation serve an important gov-

ernmental interest; that this interest be unre-

lated to the content of the information to be

disclosed in the proceeding; and that there be no

less restrictive way to meet that goal.

104 Hawai'i at 489, 92 P3d at 999 (quoting Brown &

Williamson Tobacco Corp. v. Fed. Trade Comm’n, 710 F.2d

1165, 1179 (6th Cir. 1983) (citing United States v. O’Brien,

391 U.S. 367, 377 (1968))) (emphasis omitted). Because

Freitas asserts a constitutional violation, in applying the

’ Freitas maintains that the hearing officer ignored al] contrary

evidence because Sakata, the hearing officer’s supervisor, implemented

the security measure now under scrutiny. Finding no. 10, supra,

confirms that Sakata implemented the ID procedure.

* The Director argues that all of the hearing officer's findings and

conclusions are valid and that this court must not review credibility of

witnesses or weight of evidence, citing State v. Jenkins, 93 Hawai'i 87,

101, 997 P.2d 13, 27 (2000). Assuming its relevance, Jenkins does not

represent a complete abrogation of an appellate court's right to review

findings of fact based on witness testimony.

[Vjerdicts based on conflicting evidence will not b= set aside

where there is substantial evidence to support the trier of fact’s

findings. We have defined “substantial evidence” as “credible evi-

dence which is of sufficient quality and probative value to enable

a [person] of reasonable caution to support a conclusion.”

Id. at 101-02, 997 P.2d at 26-27 (internal citations omitted).

App. 42

three-part test, we are free to exercise our own “independ-

ent constitutional judgment based on the facts of the case.”

Ka Pa‘akai O Ka ‘Aina v. Land Use Comm’n, 94 Hawai‘i

31, 41, 7 P.3d 1068, 1078 (2000) (internal quotation marks,

brackets, and citations omitted).

IV.

The hearing officer made twenty-five supplemental

findings and four supplemental conclusions. On appeal we

review findings of fact under the clearly erroneous stan-

dard. Child Support Enforcement Agency v. Roe, 96 Ha-

wai'ii 1, 11, 25 P.3d 60,70 (2001) (quoting Gump v. Wal-

Mart Stores, Inc., 93 Hawai'i 417, 420, 5 P3d 407, 410

(2000)). Findings of fact are “clearly erroneous when the

record lacks substantial evidence to support the finding.”

Id. (quoting In re Water Use Permit Applications, 94

Hawai'i 97, 119, 9 P.3d 409, 431 (2000)). “‘Substantial

evidence’ is credible evidence which is of sufficient quality

and probative value to enable a person of reasonable

caution to support a conclusion.” Jd. (brackets, internal

quotation marks, and citation omitted); see Leslie v.

Tavares, 91 Hawai'i 394, 399, 984 P.2d 1220, 1225 (1999).

Findings of fact are also clearly erroneous when “despite

substantial evidence to support the finding ... , the

appellate court is left with the definite and firm conviction

in reviewing the entire evidence that a mistake has been

made.” Child Support Enforcement Agency, 96 Hawai‘i at

11, 25 P.3d at 70. See Lanai Co. v. Land Use Comm'n, 105

Hawai'i 296, 314, 97 P3d 372, 390 (2004) (observing a

“definite and firm conviction” that the Land Use Commis-

sion “made a ‘mistake’” in its enforcement of an order).

“Hawai'i appellate courts review conclusions of law de

App. 43

novo, under the right/wrong standard.” Leslie, 91 Hawai'i

at 399, 984 P.2d at 1225 (citations omitted).

V.

Preliminary, it must be noted that in a letter regard-

ing ADLRO security renovations, the ADLRO detailed

prior security incidents over the “history of the program.™

The letter also states that ADLRO is concerned that

“persons whose licenses have been or are in jeopardy of

being revoked, in particular when we do start having drug

related cases, will become unmanageable and/or violent.”

The Security Assessment was specifically prepared by

the DPS for the ADLRO. It precisely addresses the mat-

ters of security at ADLRO meetings. In this document the

DPS conducted an examination of the ADLRO premises at

* The letter lists the following incidents:

- One arrestee lunging at hearing officer during hearing|;)

~- One life time revocation individual writing, calling and visit-

ing ADLRO with a series of threatening letters to ADLRO

staff and family/;]

~ [Tihree bomb threats, two resulting in police investigation,

one made on the record at hearing|;)

— [Bjullet holes shot through street front windows on two occa-

sions (undetermined if a direct result of ADLRO activities)(;)

- [N)umerous instances of persons at front desk or on the phone

with irate and aggressive behavior shown|;)

- ([Sjeveral instances of obviously intoxicated persons at front

desk and/or attending hearings|;]

— One arrestee entering the ADLRO office with a plastic grocery

bag filled with tools (pick axe, hammer and other unidentifi-

able objects) on one of several visits to ADLRO. ADLRO re-

quested that sheriffis) be on site at ADLRO during the

scheduled hearing.

App. 44

the ADLRO’s request.‘ The objective was to determine

measures necessary to protect the health and safety of the

employees and community:

In an effort to meet Public Safety's goals of en-

suring the health and safety of employees and

community, the department conducted a Building

Security Assessment for the Judiciary’s Adminis-

trative Driver’s License Revocation Office at their

request. The recommendations contained in this

report are for their use in determining what level

of security is necessary for their operations.

(Emphases added.) Significantly, the Security Assessment

does not identify the anonymity of members of the pubiic

which the sign-in procedure is designed to counteract as a

threat to security. Indeed, a perusal of the Security As-

sessment reveals that DPS did not recommend the current

sign-in procedure at all. The Security Assessment was

prepared by the DPS after interviewing ADLRO employees

and surveying the ADLRO building, hearing rooms, and

office and, hence, is substantial evidence of ADLRO

security problems and remedies. Yet the hearing officer did

not reference the Security Assessment in her supplemen-

tal findings.

* For example, the Security Assessment identified the hearing

rooms as “critica) areas.”

The critical areas are the Hearing Rooms where Referees meet

with clients and their attorneys. The Referees are unprotected

should clients become angry or violent. The closed doors present a

serious problem with ensuring the Referees and attorneys health

and safety.

App. 45

VI.

The pertinent supplemental findings are as follows:

3. The ADLRO instituted this ID procedure

as a security measure to prevent unknown mem-

bers of the general public from entering the in-

ner-office area.

5. The ID procedure provides a reasonable .

means of identifying and apprehending those

persons who might engage in unlawful or inap-

propriate behavior at an administrative hearing

or within the inner-office area. (Emphasis

added.)

6. The ID procedure provides a deterrent

for those persons seeking entry past the front

desk/reception counter, including those persons

who wish to attend hearings. .. .

7. This deterrent effect arises out of the

fact that persons who know that their identity

has been recorded will generally be less likely to

engage in unlawful or inappropriate behavior for

the simple reason that they know they can be

held accountable.

8. A person who remains anonymous ... is

more likely to engage in inappropriate behav-

Pe

9. Although the ID procedure is not a per-

fect security measure, it is a fundamental first-

step in the ADLRO’s security measures.

10. Mr. Sakata, as Chief Adjudicator of the

ADLRO, instituted this ID procedure based upon

App. 46

his experience and common sense understanding

of human behavior... .

12. Articles ... provide further support for

this finding, because these articles support the

principle that anonymity makes people more

likely to engage in aggressive, evil, destructive,

or unlawful behavior. . . .

13. This Hearing Officer finds that these

two articles support the view that the ID proce-

dure, by directly stripping a person of his or her

anonymity, lessens the likelihood that the identi-

fied person will engage in unlawful, harmful, or

otherwise inappropriate behavior at the adminis-

trative hearing and within the inner office area.

14. Mr. Partington also elicited testimony

from former police chief Michael Nakamura that

the ID procedure would have little benefit to se-

curity. This Hearing Officer finds that this testi-

mony was not particularly persuasive in light of

the testimony of not only the ADLRO Chief Adju-

dicator Ronald Sakata, but the testimony of secu-

rity expert Lloyd Shimabuku, and since Mr.

Nakamura conceded that the ID procedure could

have some deterrent effect. . . .

15. With respect to attorney R. Patrick

McPherson’s testimony ... in which McPherson

acknowledges that no state court, trial or appel-

late level, requires one to show identification and

sign-in in order to attend a court proceeding, this

Hearing Officer finds this testimony unrelated to

the ADLRO’s unique circumstances in which,

unlike the court buildings, the area to which

counsel, respondent, and/or other members of the -

App. 47

public are requesting access, includes undifferen-

tiated access to the hearing room as well as other

areas of the ADLRO office. . . .

16. . [T]he ADLRO does not have sepa-

rate public and non-public access area. This dis-

tinguishing factor is critical and material in

determining whether the ADLRO’s ID procedure

is warranted.

17. This Hearing Officer finds that other

security measures — including a metal detector,

x-ray machine and conveyor belt, a hand metal-

detecting wand, and someone to operate these

devices, or posting sheriffs or security guards

(armed or unarmed) in or near the hearing room

- would be expensive and beyond the budget ca-

pabilities of the ADLRO. . . .

18. In addition, metal detectors, x-ray ma-

chines and hand metal-detecting wands would do

nothing to stop a person intent on accosting

ADLRO staff or hearing attendees by hand, arm,

leg or foot, nor would such devices prevent some-

one from causing a vocal! or verbal disturbance to

the administrative proceeding. The ID procedure,

on the other hand, could possibly deter such in-

appropriate behavior.

20. In addition, this Hearing Officer finds

that even if such additional security measures

were in place — e.g., a metal detector, x-ray con-

veyor belt, and hand wand, or a security guard —

the ID procedure would provide an additional se-

curity benefit in the form of deterrence. .. . There

is no other less intrusive way to achieve this par-

ticular form of deterrence - based upon depriving

a person of his or her anonymity - other than to

App. 48

have the ADLRO’s ID procedure in effect. Al-

though security cameras . . . do remove some level

of anonymity, they still leave a person the chance

of remaining unidentified. . . .

22. This Hearing Officer finds that there is

no less intrusive way to provide the unique de-

terrent effect created by the ADLRO ID proce-

dure than to maintain the ID procedure. No other

security measure could fully substitute for the

special and unique deterrent effect brought about

by requiring the showing of a picture ID and

sign-in, as it is the most effective ... way of

eliminating one’s anonymity. . . .

23. This hearing officer finds that although

the ID procedure is not perfect - e.g., people can

sometimes obtain fake ID’s, and some people will

engage in bad behavior regardless of being pre-

identified — it remains a useful and reasonable

security measure for the ADLRO. And the proce-

dure is a very easy and simple process for a pro-

spective attendee to meet. A driver's license,

state I.D. or other acceptable picture identifica-

tion is all that is necessary. . . . Indeed, a driver’s

license, state 1.D., or other acceptable picture

identification, is something people need for all

sorts of everyday activities, including for exam-

ple: check cashing, banking, and air travel.

24. This hearing officer finds that although

the ID procedure may deprive a person of his or

her anonymity — indeed that is precisely why the

ID procedure has an effective deterrent effect —

that is not an especially significant intrusion be-

cause a person attending the hearing would have

their face seen by hearing participants in any

App. 49

event. Furthermore, the ADLRO as a matter of pol-

icy does not distribute the sign-in list to anyone, ex-

cept in the event someone on that list engages in

unlawful activity or creates a disturbance.

(Emphases added.) On the grounds set forth herein, the

relevant supplemental findings are not supported by

substantial evidence. The said findings are considered in

seriatim.

1. Finding no. 3 states that “[t}he ADLRO instituted

this ID procedure as a security measure... .” The record

shows that the ID procedure was introduced by Sakata,

based on his “common sense, experience” that the ID

procedure would have a deterrent effect." However, as

mentioned, the [D procedure is not identified or recom-

mended by the Security Assessment, supru. Additionally,

at the time the ID procedure was instituted, Sakata did

not even know of the social science articles that were

subsequently introduced at the remand hearing to justify

the procedure, and as he conceded, the articles had noth-

ing to do with his decision to institute the procedure.

* ADLRO Chief Adjudicator Ronald Sakata testified:

[Deputy Attorney General]: So, in your opinion, basically re-

moving a person’s anonymity acts as a natural deterrent to

wrongfu! or inappropriate conduct?

Sakata: I believe so, yes.

[Deputy Attorney Generai]: And what do you base this view

on?

Sakata: Well, common sense, experience.

(Emphasis added.)

* The relevant testimony reads:

(Counsel for Freitas (Counsel)]: Mr. Sakata, when did you

first see these psychology articles?

Sakata: Within the last couple of weeks.

(Continued on following page)

App. 50

Consequently, the articles not only lack a credible basis for

the purpose of the hearing, see discussion infra; they are

completely irrelevant to the ADLRO’s decision to imple-

ment the ID procedure.

2. Finding no. 5 states that “[t]he ID procedure

provides a reasonable means of identifying and apprehend-

ing those persons who might engage in unlawful or inap-

propriate behavior... .” (Emphasis added.) Finding no. 23

repeats that the ID procedure is useful, reasonable, easy

and simple.

However, the reasonableness of the procedure is a

question of law, and insofar as it relates to a fact, is not

supported by substantial evidence. Appellee’s own security

expert, Shimabuku, agreed that without training person-

nel to recognize “fake” photo ID's, the ID procedure is

“relatively useless.” Sakata testified that ADLRO staff is

(Counsell: They had nothing to do with your adoption or

your policy, did they?

Sakata: No.

(Emphases added.)

’ Director’s security expert Shimabuku testified as follows:

{Counsel}: [Dloes it matter if the staff of this office or any-

where the sign in procedure is trained to look for fake ID's? Would

that be an important consideration?

Shimabuku: Yes, I would think so.

{Counsel}: And if somebody comes in with a fake ID, then

the identification and sign in requirement is rather meaningless,

isn’t it?

Shimabuku: / think they would, if they were trained to iden-

tify fake ID's, then something could be done. The person could be

prevented from coming in for the hearing.

(Emphasis added.)

(Continued on following page)

App. 51

not trained to recognize false [D’s, and Chief Nakamura

testified that such ID’s are “relatively easy” to obtain in

Hawai'i.

3. Findings nos. 6, 7, 8, 14, and 18 state that the ID

procedure acts as a deterrent. The assertion is presumably

supported by the two articles and the testimony of Sakata

and Shimabuku. However, this determination is not

supported by the articles submitted by Appellees. In light

of the ADLRO letter, the testimony of Chief Nakamura,

and the Security Assessment, the testimony of Sakata and

Shimabuku as discussed, did not constitute substantial

evidence to support these findings.

a. Although the hearing officer relies heavily upon

the two articles, neither article can be accepted as credible

evidence. In his article, Marx states unequivocally that he

focuses on concepts, not actual behavior.” The author also

Sakata testified that the staff had no training in recognizing fake

ID's:

[Counsel]: Now what training is given to your staff to iden-

tify false or fake identification?

Sakata: No formal training.

[Counsel]: Any informal training?

Sakata: Only the common sense thing about looking at a

photo ID and matching it up with the face. . . .

(Emphases added.)

Freitas’s security expert, retired Chief Nakamura testified as

follows:

{Counsel}: [H)ow hard is it to get a fake identification here

in Hawaii?

Nakamura: It’s relatively easy based on current technology

with computers.

* The relevant statement in Marx’: article states:

(Continued on following page)

App. 52

admits, with respect to Section B,” that he is simply |

reporting justifications for concealment and revelation, not

endorsing these justifications.” As Marx himself will not

endorse the validity of the “claimed empirical conse-

quences,” little credence can be attributed to any findings

of fact resting upon this article.

Zimbardo’s article similarly does not constitute

credible evidence relevant to security measures at ADLRO

hearings. This article does not concern security measures

at public hearings but rather, “generic forms of institu-

tional evil, such as poverty, prejudice or destruction of the

environment by corporate greed.” It therefore is not

meaningfully relevant to the question of public hearing

security measures.” Further, the article is seemingly

In this article I layout some of the conceptual landscape and some

research issues. This emphasis is on the cultural level ... more

than on describing actual behavior.

(Emphasis added.)

* Finding 12, in,ra, quotes exclusively from Section B.

” Section B, “Socially Sanctioned Contexts of Concealment and

Revelation” is composed of Part 1, Rationales in Support of (Full or

Partial) Anonymity and Part 2, Rationales in Support of Identifiability.

Footnote 4, in the Introduction to Section B, states as follows:

I make these observations as a social observer and not as a moral-

ist or empiricist (in the sense of subjecting claims to some kind of

necessarily good, nor that the claimed empirical consequences (and

no unintended or other consequences) necessarily follow. To have a

pony in those races requires analysis beyond the scope of this pa-

per. Here, / simply take claimed justifications at face value and

report them.

(Emphases added.)

" Relevant statements in Zimbardo’s article include:

This behaviorally-focused definition [of evil} makes an agent of

agency responsible... . It excludes ... the broader, generic forms

(Coritinued on following page)

App. 53

driven by an overt political view, and cannot be accorded

the status of unbiased scientific or social-scientific reports

for the purpos? of this case.” Findings 12 and 13, based on

these articles, are similarly unsupported by the record.

b. Appellee’s contention that the anonymity of

members of the public poses a threat to ADLRO hearings

is also unsupported by the ADLRO’s letter, supra. In that

letter listing prior and anticipated incidents, the ADLRO

identified threats to the physical safety of ADILRO employ-

ees. Any threat posed because of the anonymity of mem-

bers of the public is absent.

c. The testimony of Chief Nakamura likewise does

not support a finding of deterrence. While this court

usually disinclines review of a hearing officer’s findings

based on oral testimony, finding no. 14 appears to mis-

characterize the testimony of Chief Nakamura. In that

of institutional evil, such as poverty, prejudice, or destruction of

the environment by agents of corporate greed. But it does include

corporate responsibility for marketing and selling products with

known disease-causing, death-dealing properties, such as ciga-

rette manufacturers, or other drug dealers. /t also extends ... to

encompass those in distal positions of authority whose orders or

plans are carried out by functionaries. This is true of military

commanders and national leaders, such as Hitler, Stalin, Mao, Pol

Pot, Idi Amin. . . .

(Emphasis added.)

” For example, the article states that “(the ‘war on terrorism’ can

never be won solely by current administration plans to find and destroy

terrorists ... ”; “(mJilitary commanders . . . such as Hitler, Stalin, Mao,

Pol Pot, Idi Amin, and ethers who history has identified as tyrants for

their complicity in the deaths of untold millions of innocent people.

History will also have to decide the evil status of President Bush’s role in

declaring a pre-emptive, aggressive war against Iraq in March, 2002,

with dubious justification, that resulted in widespread death, injury

destruction and enduring chacs.” (Emphasis added.)

App. 54

finding, the hearing officer stated that “Mr. Nakamura

conceded that the ID procedure could have some deterrent

effect....” (Emphasis added.) To the contrary, Chief

Nakamura's testimony was that the procedure was “close

to” “useless.” The relevant testimony reads as follows:

[Deputy Attorney General]: Chief Naka-

mura, you were saying that signing require-

ments, sign in and identification showing

requirement would have little impact upon secu-

rity, are you saying that this requirements has

no impact on security and is absolutely useless’

Nakamura: It’s not absolutely useless, close

to it.

{Deputy Attorney General]: But it could

have some impact?

Nakamura: If I had to rate that with every

option available, it would probably be at the bot-

tom of the list.

(Emphases added.) Chief Nakamura’s testimony does not

support a finding that he conceded the [ID procedure has a

deterrent effect. Although tne hearing officer decided, in

finding no. 14, that Chief Nakamura’s “testimony was not

particularly persuasive,” it would appear evident that the

testimony of the former police chief of Honolulu should

have been accorded substantial weight in the areas of

public disruption, violent acts, and security in public

places based on his training, expertise, and experience and

in the absence of any finding that his testimony should be

disregarded in this respect.

App. 55

d. As mentioned previously, the hearing officer did

not reference the Security Assessment in her supplemen-

tal findings. Bui, the assessment is substantial evidence of

ADLRO security problems and remedies. Again, a perusal

of the Security Assessment reveals that DPS made specific

recommendations, none of which included the current

sign-in procedure.

In sum, the documentary evidence and oral testimony

in the record do not support a substantial connection

between disruption and deterrence of threats and the

current ID procedure. Although Appellee argues the ID

procedure may facilitate locating an individual after the

fact, ADLRO staff are not trained to recognize fake ID's,

see supra note 7; hence, there is no evidence that the ID

4. Finding no. 9 states that the ID procedure is “a

fundamental first-step in the ADLRO’s security meas-

ures.” There is no substantial evidence in the record to

support a finding that the ID procedure is either “funda-

mental” or /: “first-step” in appropriate security measures.

On the other hand, the Security Assessment precisely

enumerates the measures necessary to insure security and

thus is substantial evidence of the “fundamental” and

necessary “steps” required.

5. Findings nos. 15 and 16 discuss the unique

circumstances of the ADLRO building. But these findings,

unlike the Security Assessment, are not tailored to the

specific safety requirements of the facility; hence, these

findings are not supported by substantial evidence.

6 Finding no. 17 indicates that other security meas-

ures, “including a metal detector, x-ray machine and

conveyor belt, a hand metal-detecting wand, and someone

App. 56

to operate these devices or posting sheriffs or security

guards (armed or unarmed) in or near the hearing room —

would be expensive and beyond the budget capabilities of

the ADLRO... .” Contrary to the partial msjority opinion

in Part III, majority opinion at 39-40, 116 P.3d at 681-82,

other than Sakata’s bare testimony, nothing was submitted

in the record to support this finding. Moreover, the rele-

vant inquiry on remand was the application of the Freitas

I test, supra.” Additionally, the record indicates that the

ADLRO has, on occasion, requested and been afforded

deputy sheriffs to provide security, as occurred at this

remand hearing.

7. Finding no. 20 states that “[t)here is no other less

intrusive way to achieve this particular form of deterrence

~ based upon depriving a person of his or her anonymity —

other than to have the ADLRO’s procedure in effect.

Although security cameras ... do remove some level of

anonymity, they still leave a person the chance of remain-

ing unidentified... .” (Emphases added.) Finding no. 22

essentially restates finding 20.

Findings 20 and 22 must be rejected for two reasons.

First, they state a conclusion of law that the ID procedure

is the least intrusive means. Even if construed as a fact,

these findings are controverted by the recommendations in

the Security Assessment, which are substantial evidence

of the means for ensuring security at ADLRO hearings.

" The hearing officer dismissed these other measures as “expen-

sive and beyond the budget capabilities of the ADLRO.” Such fiscal

concerns, however, are an irrelevant consideration in the Freitas ! test,

where the issue is whether the government's regulation is the least

restrictive means of achieving its asserted goal.

App. 57

Second, the findings erroneously limit potential

security measures to those that require the public to sign-

in and produce a picture ID. The governmental interest at

stake is the security at agency hearing. Limiting this

interest to security that is based on deprivation of ano-

nymity leads to the syllogistic conclusion that only depri-

vation of anonymity can secure against the threat of

anonymity.

It should also be noted that in footnote 6 to finding 22,

the hearing officer states that “IDs are required for entry

to circuit court chambers.” The relevant inquiry concerns

the right of public access to a public hearing. Court cham-

bers are not the equivalent of public hearing rooms.

Therefore, procedures for court chambers entry do not

constitute relevant or substantial evidence and the refer-

ence thus is clearly erroneous.

8. Finding no, 24 states that the intrusion posed by

the ID procedure is insignificant because “a person attend-

ing the hearing would have [his] face seen by hearing

participants in any event.” Whether an intrusion is insig-

nificant is a question of law and should not be couched as

a finding. In addition, it would appear plain that being

required to sign one’s name on a roster maintained by a

state agency and to produce a picture [D is not equivalent

to merely having one’s face seen by participants at an

ADLRO hearing. Relatedly, the assertion that the sign-in

list is not distributed does not accurately reflect the

record. According to Sakata’s testimony, the sign-in list

remains on the office counter all day and its subsequent

custody is apparently entirely subject to Sakata's discre-

tion.

App. 58

Thus, the record lacks substantial evidence to support

findings that the current ID procedure (1) advances the

governmental interest of safety at the hearings, (2) deters

security threats at ADLRO hearings, and (3) is the least

restrictive means of achieving security at ADLRO hear-

ings.

VIL.

Aside from the erroneous findings, the hearing officer

incorrectly applied the Freitas I test. Thus, her conclusions

were wrong. The four conclusions state:

1. The ID procedure serves an important

governmental interest: namely, enhancing secu-

rity and avoiding disruptions at ADLRO admin-

istrative hearings.

2. This interest ... is unrelated to the con-

tent of the information to be disclosed in the ad-

ministrative proceeding.

3. There is no less restrictive way to fully

serve this important governmental! interest in

enhancing security and avoiding disruptions at

ADLRO administrative hearings and in-office

area, other than to continue with the ID proce-

dure. Ajthowgh other measures can add to secu-

rity as well, there is no other less intrusive means

of achieving the unique deterrent effect that arises

out of depriving a person of his or her anonymity.

The ADLRO ID procedure is the least intrusive

means of achieving this unique deterrent effect.

4. The ADLRO ID procedure is therefore

fully warranted, and does not impermissibly in-

terfere with a respondent's right to a public hear-

ing.

~-

App. 59

(Emphases added.) Inasmuch as the test in Freitas I

answers a constitutional question of law, the hearing

officer’s application of the test must be reviewed de novo,

under the right/wrong standard. See Bank of Hawaii v.

Kuni oto, 91 Hawai'i 372, 387, 984 P2d 1198, 1213

(1999).

VIII.

Logically, the first step in the Freitas J analysis is to

identify the ADLRO’s “important governmental interest.”

104 Hawai'i at 489, 92 P.3d at 999. In its letter, see supra,

the ADLRO noted its concern that “persons whose licenses

have been or are in jeopardy of being revoked ... will

become unmanageable and/or violent.” The hearing officer

accepted this concern in conclusion no. 1 by identifying

“enhancing security and avoiding disruptions at ADLRO

administrative hearings” as the “important governmental

interest” to be served by the ID procedure.

This would appear to satisfy the first element of the

Freitas I scrutiny, see Regal Cinemas, Inc. v. Mayfield

Heights, 738 N.E.2d 42, 48 (Ohio Ct. App. 2000) (determin-

ing that “security at venues that attract a large number of

people in a congested area at the same time” is “an impor-

tant government interest”); Klein v. Leis, 795 N.E.2d 633,

640 (Ohio 2003) (concluding that “[e)nsuring public safety

is an important government interest”); In re Rules Adop-

tion, 576 A.2d 274, 281 (N.J. 1990) (holding that “institu-

tional security” at a prison is an “important government

interest”), and Freitas does not dispute that the ADLRO’s

concern constitutes a valid interest.

App. 60

IX.

Under Freitas I, the next inquiry applicable to this

case“ is determining whether the ID procedure constitutes

the least “restrictive way to” “enhancie] security and

avoid[] interruptions at ADLRO administrative hearings.”

104 Hawai'i at 489, 92 P.3d at 999. As there is no substan-

tial evidence that the ID procedure advances the govern-

mental interest at stake, concluding that this procedure is

the least restrictive means of achieving that interest is

also untenable. For the reasons set forth previously, the

findings do not support a conclusion based upon substan-

tial evidence that the ID procedure in any way enhances

security or prevents disruptions at ADLRO hearings.”

Instead, the record indicates that because ADLRO staff

are not trained to recognize false ID’s, the current ID

procedure provides no deterrent. Even if the staff were

trained, substantial evidence did not exist to support a

finding that the ID procedure would in fact reduce security

threats.

“ Although Freitas argues that “the record utterly fails to support

{the} conclusions {of law,)” he does not argue that the hearing officer

erred in applying the second Freitas factor concerning the content of the

information to be disclosed in the proceeding. Therefore, the hearing

officer's assessment of that factor need uot be addressed.

“ Taken as a whole, the findings do anything but address the

crucial issue. They state that the ID procedure “is a reasonable means”

and “provides a deterrent,” (finding 5) “lessen{s) the likelihood” and

“may discourage,” (finding 13) “could potentially deter,” (finding 18) and

would “provide an additional measure of deterrence,” (finding 21).

(Emphases added.) But they do not establish that the ID procedure is

the least restrictive “reasonable means” or “deterrent,” or that such a

policy is the least restrictive way to “discourage” and “deter” disruptive

behavior at hearings.

App. 61

At this point, the hearing officer’s analysis, as exhib-

ited in conclusion no. 3, blurred the first and third prongs

of the Freitas I test. Essentially, the hearing officer con-

fused the “important governmental interest” with the least

“restrictive way to meet” that interest. To reiterate, in

conclusion no. 3, the hearing officer determined

[t}here is no less restrictive way to fully serve

this important governmental interest in enhanc-

ing security and avoiding disruptions at ADLRO

administrative hearings and in-office area, other

than to continue with the ID procedure. Although

other measures can add to security as well, there

is no other less intrusive means of achieving the

unique deterrent effect that arises out of depriving

a person of his or her anonymity. The ADLRO ID

procedure is the least intrusive means of achiev-

ing this unique deterrent effect.

(Emphases added.) This analysis is flawed for two reasons.

First, the “unique deterrent effect that arises out of

depriving a person of his or her anonymity” is not the

“important governmental interest” that was asserted by

the ADLRO and identified in conclusion no. 1. In asking

whether there is no less restrictive means to meet the

goal, the hearing officer wrongly redefined the governmen-

tal interest as vhether “[t/here is no other less intrusive

means of achieving the unique deterrent effect that arises

out of depriving a person of his or her anonymity.” (Em-

phasis added.) The governmental interest at stake is the

security of the agency hearing, not the most efficacious

way of depriving a person of his or her anonymity.

Second, this “unique deterrent effect” constitutes the

means of achieving the ADLRO’s interest in enhanced

security and in minimizing disruptions at hearings, not the

App. 52

interest itself. The conclusion that “[t}he ADLRO ID

procedure is the least intrusive means of achieving this

unique deterrent effect” of “depriving a person of his or her

anonyt ity” is factually true. Requiring persons to present

proper and valid identification no doubt strips them of

their anonymity. But this is not the issue to be decided.

The proper inquiry is whether the ID procedure, i.¢.,

depriving persons of their anonymity, is the least “restric-

tive way to” “enhancle] security and avoid[ | disruptions at

ADLRO administrative hearings.” The governmental

interest at stake is the security at agency hearings. As

indicated before, equating this interest to the deprivation

of anonymity leads to the syllogistic conclusion that only

deprivation of anonymity can secure against the threat of

anonymity and results in the hearing officer's wrong

conclusion.

Based on the reasons enumerated before, the ID

procedure was not shown to be the least restrictive means

of meeting the governmental interest in “enhancing

security and avoiding disruptions.” On the other hand,

credible evidence in the form of the Security Assessment

set forth security measures previously calculated to the

specific situation of the ADLRO. A, pellees introduced no

credible evidence balancing the alternatives set forth in

the assessment as required under the Freitas I test. The

hearing officer thus erred in her application of the Freitas

I test.

X.

To support its holding that “the ADLRO’s identifica-

tion and sign-in procedure does not impermissibly infringe

upon Freitas’s constitutional right to a public Aearing|,)”

App. 63

majority opinion at 8 (emphasis added), the majority relies

upon cases addressing the sixth amendment right to a

public trial, see majority opinion at 9-12. In our prior

opinion remanding the case to the ADLRO, however, we

distinguished between the sixth amendment right to a

public trial and the right to a public hearing asserted by

Freitas. See Freitas I, 104 Hawai'i at 486 n.7, 92 P.3d at

996 n.7 (distinguishing State v. Ortiz, 91 Hawai'i 181, 981

P.2d 1127 (1999), because it involved “a criminal proceed-

ing subject to the right to a public trial afforded by the

[sixth [a}jmendment and [aJrt. VII § 14 of the Hawaii

State Constitution and this case is an administrative

proceeding”). Inasmuch as this case concerns a quasi-

judicial administrative proceeding before the ADLRO,

Freitas I, 104 Hawai'i at 489, 92 P.3d at 999, and “due

process requires that [such] hearings be public,” id., the

defendant's Sixth Amendment right to a public trial in a

criminal prosecution is not implicated. To intimate other-

wise, as the partial majority opinion in Part III does, see

majority opinion at 11-12, note 2, would obscure the

“automatic reversal” rule under the sixth amendment

applied in criminal cases, and the balancing test we had

adopted in Freitas I to be applied where the due process

clause pertains.”

In the event that the sixth amendment right to a public trial was

denied, then such denial would be “considered a ‘structural defect

affecting the framework within which the trial proceeds, rather than

simply an error in the trial process itself,” State v. Ortiz, 91 Hawai'i at

193, 981 P.2d at 1139 (quoting Arizona v. Fulminante, 499 U.S. 279,

310, 111 S.Ct. 1246 (1991)) and the case would be “subject to ‘autamatic

reversal.” Id. (quoting Neder v. United States, 527 U.S. 1, 7, 119 S. Ct.

1827, 1833 (1999)). Thus, insofar as this matter is nox a criminal

prosecution, the Sixth Amendment and Article I, Section 14 of the

(Continued on following pege)

App. 64

Nonetheless, the majority cites to United States v.

DeLuca, 137 F.3d 24 (ist Cir. 1998), a sixth amendment

right to a public trial case, for the proposition that this

court should be “hesitant to displace the ADLRO hearing

officer’s judgment call in these circumstances.” Majority

opinion at 9 (quoting DeLuca, 137 F.3d at 34) (brackets

omitted). In DeLuca, the First Circuit afforded the trial

court “substantial deference” in its “assessment that the

screening procedures were warranted,” observing that

such “difficult judgments are matters of courtroom gov-

ernance which require a sensitive appraisal of the climate

surrounding a trial and a prediction as to the potential

security or publicity problems that may arise during the

proceedings.” 137 F.3d at 34 (internal quotation marks and

citation omitted).

Assuming, arguendo, the applicability of DeLuca, it

should be emphasized that the screening procedure used

in that case “was reasonably designed to respond,” id. at

35, to the concerns specific to the defendants who “either

were directly associated with prior efforts to obstruct fair

fact[-]finding through untruthful trial testimony, or were

found to possess the present means as well as ample

inducement ... to sponsor similar efforts in the case,” id.

In contrast here, the [D procedure was not shown to be

“reasonably designed to respond” to a specific security

threat at ADLRO hearings. As stated previously, the

Security Assessment prepared by DPS for the ADLRO

hearings did not recommend the sign-in procedure and

there was no evidence to support the conclusion that the

ID procedure would prevent disruptions at the hearings.

Hawai'i Constitution do not apply and Freitas is not guaranteed a Sixth

Amendment public trial in this particular administrative hearing.

App. 65

Thus, the hearing officer is not entitled to the same level

of “judgment call” deference afforded the trial judge in

DeLuca.

The majority cites to a second right to a public trial

case, Williams v. Indiana, 690 N.E.2d 162 (Ind. 1997), and

asserts that our prior remand for a hearing was

“[clonsonant with the Williams rationale[.)” Majority

opinion at 10. Williams requires a court to “provide the

reasons for its decision to authorize the procedures” and to

create a record “clearly substantiat[ing) the need for these

additional precautions.” 690 N.E.2d at 170. As previously

discussed, however, the hearing officer’s findings do not

“substantiate the need for,” id. at 170, the ID procedure.

Moreover, Williams requires a weighing of “the prospective

benefits to the order and security of the courtroom with

the burdens to the defendant, the press, and the public.”

Id. The hearing officer apparently found in finding no. 17

that the “budget capabilities of the ADLRO” outweighed

the burdens of the ADLRO’s sign-in and identification

procedure. I cannot accept, as the majority does, this

“fiscal feasib(ility]” justification, majority opinion at 13, for

the implementation of an ID procedure that, according to

the record, including testimony by Chief Nakamura, is

unlikely to yield worthwhile security benefits at the

ADLRO hearings.

The majority also cites to United States v. Brazel, 102

F.3d 1120 (11th Cir. 1997). But like Deluca, the sign-in

procedure in Brazel was upheld based on the trial judge's

“own observations for more than a week .. . that individu-

als had been coming into the courtroom and fixing stares

on the witnesses and possibly government counsel.” Jd. at

1156. Thus, the court itself had observed a threat that

jurors or witnesses might be improperly influenced. /d. at

App. 66

1155. No such evidence of a similar threat was apparent at

the ADLRO hearings and, therefore, I cannot agree with

the majority's assessment that the sign-in procedure is

“reasonably tailored to meet the security needs of ADLRO

hearings.” Majority opinion at 13.

Moreover, the defendants in Brazel “objected that the

identification procedure could have a chilling effect on the

public, because some people might fear that if they identi-

fied themselves (by name, address, and birth date), a

computer check might be run and they might be suspected

of being a part of the drug conspiracy.” Jd. at 1156. Thus, it

was logical that an identification requirement would

dissuade those with criminal histories, the very ones likely

to be improperly influencing the jurors and witnesses,

from entering the courtroom and interfering with the court

proceeding. The sign-in procedure utilized at the ADLRO

hearings is not supported by similar logic, but stems from

a sweeping conclusion that depriving a person of his or her

anonymity will minimize disruptions at the ADLRO

hearings.

Whereas the sign-in procedure in Braze! was justified

by the overt instances of intimidation observed by the

judge herself and designed to exclude the sources of the

intimidation, the sign-in procedure here is not similarly

justified. Rather, it is based upon an amorphous threat to

security at the ADLRO hearings and may exclude not just

the sources of a supposed disruption, but individuals who,

as stated in our prior opinion in this case, are entitled

access to quasi-judicial proceedings in order to ensure that

“the liberty and property of the citizen shall be protected

by the rudimentary requirements of fair play” and to

maintain “public confidence in the value and soundness of

App. 67

this important governmental process.” Freitas J, 104

Hawai'i at 489, 92 P.3d at 999.

Finally, it should be noted that DeLuca and Brazel

involved case-specific approaches aimed at threats unique

to the immediate proceeding before the trial judges.

Therefore, these cases cannot serve as authority for the

ADLRO’s permanent across-the-board sign-in procedure.

XI.

Under the evidence produced at the remand hearing,

Freitas’s revocation hearing should have been free of the

identification and sign-in procedure. I would order that

future ADLRO hearings be open to the public without the

requirement of ID and sign-in restrictions and that rec-

ommendations of the DPS as are appropriate be imple-

mented.

/s/ Simeon R. Acoba