Paul v. Department of Transp., State

168 P.3d 546

Annie PAUL, Inspector # 260 and Auto Shine II, Inspector Station # 429, Respondent-Appellant-Appellee, v. DEPARTMENT OF TRANSPORTATION, STATE OF HAWAI`I, Appellee-Appellant.

No. 27238.

Supreme Court of Hawai`i.

September 24, 2007.

Christopher J. Roehrig of Roehrig, Roehrig, & Wilson, on the briefs, Kamuela, for the respondent-appellant-appellee Annie Paul.

Wayne A. Matsuura, Deputy Attorney General, on the briefs, for the appellee-appellant Department of Transportation, State of Hawai`i.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by LEVINSON, J.

The appellee-appellant State of Hawai`i Department of Transportation (DOT) appeals from the March 18, 2005 judgment on appeal of the third circuit court, the Honorable Ronald Ibarra presiding, entered in favor of the respondent-appellant-appellee Annie Paul and against the DOT.

The director of the DOT [hereinafter, "the director"] had earlier: (1) adopted the recommended order of a DOT administrative hearings officer (AHO), following a contested-case hearing in which the AHO found and concluded that Paul had failed to perform vehicle safety inspections in accordance with Hawai`i Administrative Rules (HAR) chs. 19-133.2 (1994) (governing the periodic inspection of vehicles) and 19-133.5 (1994) (governing the suspension or revocation of an official inspection station or inspector's certification) and Hawai`i Revised Statutes (HRS) ch. 286 (1993) (pertaining to highway safety); and (2) affirmed the September 23, 2002 notice of revocation of Paul's right to conduct vehicle inspections.

On July 8, 2004, Paul appealed to the third circuit court, which, on February 7, 2005, concluded that HAR §§ 19-133.2-28 to 19-133.2-38,¹ the relevant HAR provisions at issue [hereinafter, "the inspection procedures"], were not vague when read individually but, when read in conjunction with HAR § 19-133.2-40 (Rule 40),² were, in the aggregate "vague and indefinite . . . [and,] therefore[,] unconstitutional under [HRS] § 91-14(g) [(1993)] ...."³ On March 18, 2005, the circuit court entered judgment in favor of Paul and against the DOT.

On appeal to this court, the DOT asserts: (1) that, under rules of statutory construction, the inspection procedures and Rule 40, read together, are not void for vagueness; (2) that, insofar as Paul does not dispute that forty of the seventy-five documented failures to inspect that she committed did not implicate Rule 40, she did not establish any prejudice to her substantial rights, see HRS § 91-14(g), supra note 3; and (3) that, inasmuch as she conceded under oath that she was unaware of Rule 40 until more than a year after her inspector's license was revoked, she could not have been prejudiced by any purported vagueness imported into the regulations by the wording of Rule 40.

For the reasons discussed infra in section III, we hold that the inspection procedures and Rule 40, taken as a whole, were not unconstitutionally void for vagueness. We therefore vacate the circuit court's March 18, 2005 judgment and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. The Initial Revocation

During July and August 2002, DOT inspector Tyrus Takimoto conducted video surveillance of Paul's inspection station to observe the manner in which she conducted vehicle safety inspections. Paul testified that she was aware of the surveillance. Takimoto observed Paul issuing safety stickers without conducting required system checks, in many instances failing to conduct even visual inspections of relevant vehicle systems such as steering and suspension, brakes, and the intake and fuel systems.⁴

On September 23, 2002, the DOT revoked Paul's motor vehicle safety inspector certificate. The DOT based the revocation upon seventy-five incidents observed by Takimoto in which Paul failed to conduct required inspections of vehicle components during the inspection of eighteen vehicles. On September 30, 2002, Paul filed a petition for a contested-case hearing. Hearings were conducted on January 15 and March 5, 2004.

Testimony at the hearings focused in part on the DOT's harmonization of the inspection procedures with Rule 40:

[Paul]: [Rule 40] tells you that there doesn't have to be a brake test. You can do an inspection visually, correct?

Takimoto: Not necessarily.

[Paul]: What does it say? It says sections 27 through 38. That includes brakes, right?

Takimoto: Correct.

[Paul]: And it says tests can be performed visually. Now visually isn't driving the car around is it?

Takimoto: Right. But it says may be performed, and in the specific section about brakes it does indicate about the brake pedal travel and a test drive, that four to eight miles per hour test drive... .

[Paul]: This test says it can be done visually, doesn't it? This section says, the tests for all these sections can be done visually. Visually means you don't drive, doesn't it? Visually means that you just look at something, doesn't it?

Takimoto: For those areas, sections, components . . . that [are] applicable, to be done a visual inspection.

[Paul]: Oh, so that's your interpretation. That when it says visual here, it doesn't mean visual for all these sections, but just certain sections?

Takimoto: Yes.

[Paul]: OK. And then it says vehicles ... can be certified in compliance with this chapter, that means the entire inspection chapter, based on the general appearance of the vehicle. What does that mean? General appearance of the vehicle. Do you know what that means?

Takimoto: As far as its condition.

[Paul]: So you can just look at the general appearance of the vehicle and certify it. Is that what that says?

Takimoto: Again, in compliance with the other specified sections where ... it is applicable....

....

[Paul]: So, your interpretation of that, even though it says you can do a visual check for all these sections, you say that doesn't apply to the sections where you have to drive. Is that correct?

Takimoto: Yes.

(Emphases added.) Paul herself testified that when she tested a vehicle's brakes she would perform more than a visual inspection: Paul's counsel asked her, "So, ... how would you check the brakes, or what ... observations[] could you make regarding them?" to which she responded, "You could just go in the car and press on the brakes and make sure it doesn't go right down to the floor."

John Lovstedt, a motor vehicle safety officer with the DOT's Highways Division who bore primary responsibility for enforcing the periodic motor vehicle inspection program, testified that DOT inspectors had interpreted Rule 40 in conjunction with the inspection procedures in order (1) to harmonize them in practice and (2) to support "the objective [of the motor vehicle safety inspection program, which] is to reduce the number of mechanical or component failures[,] thereby reducing the probability of crashes and improving highway safety":

[Paul]: ... [W]hen [Rule 40] says the certificate of inspection can be issued based upon the general appearance of the vehicle, what does that mean to you?

Lovstedt: That means that there are times when just a visual inspection will be adequate. There are other times when it won't be adequate.

[Paul]: Does it say there that there are times when it's not . . . adequate?

Lovstedt: It doesn't in that phrase right where you are reading.

[Paul]: That's your interpretation.

Lovstedt: But if you were to take that and read it the way you want to understand it, you might as well throw everything out.

[Paul]: I didn't make the rules....

....

Lovstedt: ... I'm showing you how these rules are to be interpreted. And if you look a[t] the part on brakes as an illustration, it says that it shall be based upon a performance test. It doesn't say observation.

[Paul]: Where's it say that? It doesn't ... say that in the rules.

Lovstedt: ["]Service and parking brake systems shall be inspected for performance.["]

[Paul]: Period. OK.

Lovstedt: It doesn't say observation; it says performance.

[Paul]: [Rule 40] says regarding the inspection requirements [set forth in HAR §§ 19-133.2-]27 through [-]38, . . . general appearance of the vehicle can support a certificate of inspection. That is what it says.

Lovstedt: Now, the purpose of that is not to negate everything that was written before it. You're taking the last section there and canceling everything out.

[Paul]: . . . I'm not canceling it out. I'm reading what it says.

Lovstedt: How would you . . . inspect the horn visually? You wouldn't be able to do it.

[Paul]: It says you can do it here. I didn't make the rules. It says regarding all the previous requirements, that it can be done visually. . . .

Lovstedt: . . . It says may. The word may is there so that [ . . . ]

[Paul]: So that leaves an alternative to people doing inspections. They may do it this way if they want to, right?

Lovstedt: If they find a way that they can do the inspection without a measurement, they may.

[Paul]: Where does it say that?

Lovstedt: In the rules. That's the purpose of the word may.

. . . .

[Paul]: Have you told [DOT motor vehicle control inspector Michael] Hanohano and . . . Takimoto or any of your ... people that work for the County that an inspection may be done visually, and they don't necessarily have to drive the vehicle?

. . . .

Lovstedt: I never said that they don't have to drive a vehicle.

[Paul]: Did you tell them that they may do it visually?

Lovstedt: The brake test?

[Paul]: Any of the tests, brake test included.

Lovstedt: No, I didn't say that.

[Paul]: Why not? That's what the rules say.

Lovstedt: That's not the intent . . . .

(Emphases added.) Hanohano and Takimoto both testified that they had consistently informed Paul that it was necessary to enter the vehicle, look under the hood, and, with respect to some components such as brakes, to perform more than purely visual inspections in order to certify a vehicle properly. Takimoto recalled that,...