Lewis v. Hawaiian Homes Commission

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-DEC-2025
08:29 AM
Dkt. 86 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

HEIDI LEWIS, Respondent-Appellant-Appellant,
v.
HAWAIIAN HOMES COMMISSION, Agency-Appellee-Appellee;
DEPARTMENT OF HAWAIIAN HOMELANDS, Petitioner-Appellee-Appellee;
and CAPRICE AYAU, Respondent-Appellee-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Hiraoka and McCullen, JJ.)

Self-represented Respondent-Appellant-Appellant Heidi

Lewis (Lewis) appeals from the Circuit Court of the First

Circuit's 1 September 27, 2023 order affirming Agency-Appellee-

Appellee the Hawaiian Homes Commission's (Commission)

termination of her interest in a homestead lease and denial of

her motion for reconsideration.

On appeal, Lewis argues the circuit court erred

(1) "in its application of legal standards to the facts of the

1 The Honorable James H. Ashford presided.
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case, particularly in interpreting the lease agreement and the

alleged violations thereof"; and (2) "by relying heavily on

highly redacted evidence presented by" Petitioner-Appellee-

Appellee the Department of Hawaiian Home Lands (Department or

DHHL) "without adequately scrutinizing its credibility and

relevance." 2

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

2 Lewis actually raises eight points of error (POE) on appeal:

(1) "Denial of Due Process" by upholding the Commission's
decision;

(2) "Failure to Provide an Impartial Tribunal";

(3) "Misapplication of Legal Standards to the Facts";

(4) "Overdependence on Questionable Evidence" by relying
on heavily redacted evidence;

(5) "Erroneous Conclusion of Law Regarding Lease
Cancellation";

(6) "Failure to Consider Mitigating Circumstances or
Alternative Remedies";

(7) "Inadequate Notice of Lease Violations and
Opportunity to Cure"; and

(8) "Commissioners['] failure to recuse after verbally
stating [their] intention to do so compromised
[their] ability to provide a fair trial . . . [and]
violated [the] 5th and 14th [amendments]."

However, POE 1, 2, 6, 7, and 8 are waived, as Lewis did not raise them before
the circuit court. See Mauna Kea Power Co. v. Bd. of Land & Nat. Res., 76
Hawai‘i 259, 262 n.2, 874 P.2d 1084, 1087 n.2 (1994) (waiving issue presented
during secondary appeal that was not argued before administrative agency or
on appeal to circuit court). We address POE 3 and 5 together, as they are
related, and POE 4.
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the issues raised and the arguments advanced, we resolve this

appeal as discussed below and affirm.

Lewis and her sister, Respondent-Appellee-Appellee

Caprice Ayau (Caprice), assumed as tenants-in-common Hawaiian

Homes Commission Residence Lot Lease No. 3093 (Lease) located at

89-435 Keaulana Avenue, Wai‘anae, Hawai‘i 96792 (Homestead) on

March 23, 2005, effective June 24, 2004. Lewis has resided on

the Homestead since July 2004, but Caprice has resided in

Minnesota for over forty years and did not occupy the Homestead

at any time relevant to this case.

In March 2020, the Department received complaints that

Lewis was operating an illegal game room on the Homestead.

In June 2020, Honolulu Police Department (HPD)

officers apprehended a suspect in an attempted robbery case at

the Homestead. The incident report for the attempted robbery,

HPD Incident Report No. 20-225933 (Attempted Robbery Incident

Report), included a sketch identifying the Homestead as a

"GAMEROOM" and photographs of several gaming machines inside the

house on the Homestead.

In August 2020, the Department sent Lewis a letter

(Violation Notice) notifying her that (1) it "received

indications" she was "using the [Homestead] as an illegal

gambling establishment," among other illegal activities;

(2) such activities violated "Paragraph No. 4 under the terms,

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covenants and conditions of [her] lease agreement," 3 which

required her to "observe, perform and comply with all laws,

ordinances, rules and regulations of the health or other

governmental authorities" (emphasis omitted); and (3) the

violations constituted cause for the Department to pursue action

against her, potentially resulting in the Lease's cancellation.

The Violation Notice then instructed Lewis to "immediately cease

all illegal activity on [her] homestead lot."

In July 2021, the Commission held a public meeting

during which a Keaulana Avenue resident addressed the Commission

regarding "all the illegal activities that have been happening

on Keaulana Ave.," including at Lewis's Homestead. The deputy

attorney general present at the meeting stated that "specific

matters relating to these leases may come before the Commission

in the form of contested case."

In January 2022, the Department asked the Commission

to schedule a contested case hearing on whether to cancel

3 Paragraph 4 of the Lease provides in pertinent part:

The Homesteader will . . . observe, perform and comply with
all laws, ordinances, rules and regulations of the health
or other governmental authorities, including the rules and
regulations of the Commission, applicable to the use and
occupation of said demised premises as may from time to
time be issued, enacted or promulgated; and will allow the
Commission and its agents at all reasonable times free
access to the demised premises for the purpose of examining
the same and determining whether the covenants herein and
elsewhere in this lease contained are being fully observed
and performed.

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Lewis's Lease; the Commission granted the request the following

day. 4

In June 2022, the Commission conducted the contested

case hearing. It accepted into evidence, among other things,

various HPD incident reports, including the Attempted Robbery

Incident Report, as well as Lewis's testimony.

Importantly, Lewis testified that she maintained

control over access to her Homestead and permitted gaming

operations, for which she was supposed to receive some

compensation, to occur on the Homestead.

4 Under section 210 of the Hawaiian Homes Commission Act (HHCA), the
Department may, after due notice and an opportunity for a hearing, cancel a
lessee's lease upon finding the lessee "has violated any condition in respect
to the leasing of such tract." Hawaiian Homes Commission Act, 1920, § 210,
42 Stat. 108.

HHCA § 210 provides in full as follows:

§ 210. Cancellation of leases. Whenever the
department has reason to believe that any condition
enumerated in section 208, or any provision of section 209,
of this title has been violated, the department shall give
due notice and afford opportunity for a hearing to the
lessee of the tract in respect to which the alleged
violation relates or to the successor of the lessee's
interest therein, as the case demands. If upon such
hearing the department finds that the lessee or the
lessee's successor has violated any condition in respect to
the leasing of such tract, the department may declare the
lessee's interest in the tract and all improvements thereon
to be forfeited and the lease in respect thereto canceled,
and shall thereupon order the tract to be vacated within a
reasonable time. The right to the use and occupancy of the
Hawaiian home lands contained in such tract shall thereupon
revest in the department and the department may take
possession of the tract and the improvements thereon.

(Some formatting altered.)
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Q. Do you have control over access to your
[Homestead]?

A. Yes, I do.

. . . .

Q. Were there gaming operations at your [Homestead]?
Yes or no?

A. Yes.

. . . .

Q. So when -- when the game rooms were there, were
you getting rent for that?

A. No. They did not pay me like they said they were
going to pay me. But they never did pay me.

Lewis further testified she shut down the game room on

August 28, 2020, after receiving the Violation Notice.

A. You know, once I got the [Violation Notice] from
-- from DHHL to call them and they were aware of this --
what was going on, that was like my light of this dark
tunnel that I -- I didn't know who else to turn to. So
when I did get that [Violation Notice], that was my saying
that, you guys gotta go. . . .

On December 2, 2022, the Commission issued its

Findings of Fact, Conclusions of Law and Decision and Order

(Commission's Order). As relevant to the instant appeal, the

Commission found the Department proved by a preponderance of the

evidence that Lewis violated a state law prohibiting the

promotion of gambling and, in turn, the Lease's terms and

conditions. It further found that Caprice had not violated the

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Lease; 5 as a result, the Commission preserved Caprice's interest

in the Lease but canceled Lewis's, effective immediately. 6

Lewis moved for reconsideration, and the Commission

denied her motion in January 2023.

Lewis then appealed to the circuit court. The circuit

court affirmed "[a]ll findings of fact and conclusions of law"

in the Commission's Order, and this secondary appeal followed.

(1) Lewis first contends the circuit court "erred in

its application of legal standards to the facts of the case,"

specifically with regard to "interpreting contractual

obligations and determining violations thereof" and the "legal

basis for lease cancellation." We construe this argument as

challenging the Commission's application — and the circuit

court's affirmation — of the "preponderance standard of proof"

during the contested case hearing "instead of the heightened

'clear and convincing' standard applicable in civil proceedings

involving quasi criminal allegations."

5 During the contested case hearing, Caprice indicated she was "willing
to make or undertake the appropriate steps to occupy" the Homestead; this
would enable Caprice to maintain her interest in the Lease, as it requires
the homesteader to "occupy and commence to use the demised premises as [the
homesteader's] home within one year of the date of this lease, and [to]
thereafter continue to occupy and use said lands on [the homesteader's] own
behalf[.]"

6 The parties stipulated to the Department staying enforcement of the
Commission's Order pending Lewis's appeal.

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Under Hawai‘i Revised Statutes (HRS) § 91-10(5) (2012),

the party initiating the contested case hearing (here, the

Department) must carry the burdens of production and persuasion

by a preponderance of the evidence. 7

"A party proves something under the preponderance of

evidence standard when the existence of the contested fact is

more probable than its nonexistence." Borrson v. Weeks, 155

Hawai‘i 490, 496, 567 P.3d 195, 201 (2025) (citation modified).

Here, to cancel Lewis's Lease pursuant to section 210

of the Hawaiian Homes Commission Act (HHCA), the Department

needed to demonstrate it was more likely than not that Lewis

violated the Lease term requiring her to comply with all laws.

See Hawaiian Homes Commission Act, 1920, § 210, 42 Stat. 108.

(authorizing DHHL to cancel a lessee's interest in a lease if,

after conducting a contested case hearing, it finds the lessee

violated any lease condition); HRS § 91-10(5). Specifically, it

needed to show it was more likely than not that Lewis knowingly

7 HRS § 91-10 provides in relevant part:

§ 91-10 Rules of evidence; official notice. In
contested cases:

. . . .

(5) Except as otherwise provided by law, the party
initiating the proceeding shall have the burden of proof,
including the burden of producing evidence as well as the
burden of persuasion. The degree or quantum of proof shall
be a preponderance of the evidence.

(Some formatting altered.)

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advanced or profited from gambling activity, in violation of HRS

§ 712-1222 (2014). 8

"A person advances gambling activity if, having

substantial proprietary control or other authoritative control

over premises being used with [the person's] knowledge for

purposes of gambling activity, [the person] permits that

activity to occur or continue." HRS § 712-1220 (2014).

During the contested case hearing, Lewis testified she

(1) had "control over access to [her Homestead]"; (2) knew

gaming operations, for which she was supposed to receive some

compensation, were occurring on her Homestead; and (3) permitted

the gaming operations to continue until she received the

Department's Violation Notice. Lewis's own statements

demonstrate it was more likely than not that she violated HRS

§ 712-1222, and as a result, the Commission was entitled to

cancel her interest in the Lease pursuant to HHCA § 210.

8 HRS § 712-1222 provides in full:

§ 712-1222 Promoting gambling in the second degree.
(1) A person commits the offense of promoting gambling in
the second degree if the person knowingly advances or
profits from gambling activity.

(2) Promoting gambling in the second degree is a
misdemeanor.

(Some formatting altered.)
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Thus, the circuit court did not err in affirming the

Commission's application of the preponderance of the evidence

standard and its cancellation of Lewis's interest in the Lease

for violating the Lease terms.

(2) Lewis next contends the circuit court "erred by

relying heavily on highly redacted evidence presented by DHHL

without adequately scrutinizing its credibility and relevance." 9

Lewis does not specify the "highly redacted evidence" she

challenges, but we presume she is referring to the HPD incident

reports.

Under HRS § 91-14(f) (Supp. 2019), judicial review of

an agency appeal is typically "confined to the administrative

record." 10 DW Aina Le‘a Dev., LLC v. Bridge Aina Le‘a, LLC., 134

Hawai‘i 187, 216, 339 P.3d 685, 714 (2014). The circuit court

9 Lewis does not cite to any authority in support of this argument, and
it is not this court's duty to "develop [the parties'] arguments for [them],
find the legal authority to support those arguments, or guess at what part of
the record may be relevant." See In re Morrissey, 349 F.3d 1187, 1189 (9th
Cir. 2003) (citation modified); Hussey v. Say, 139 Hawai‘i 181, 191, 384 P.3d
1282, 1292 (2016) ("This court is not obliged to address matters for which
the appellants have failed to present discernible arguments." (citation
modified)). Nonetheless, we address Lewis's argument to facilitate access to
justice.

10 HRS § 91-14(f) provides:

(f) The review shall be conducted by the appropriate
court without a jury and shall be confined to the record,
except that in the cases where a trial de novo, including
trial by jury, is provided by law and also in cases of
alleged irregularities in procedure before the agency not
shown in the record, testimony thereon may be taken in
court. The court, upon request by any party, shall receive
written briefs and, at the court's discretion, may hear
oral arguments.
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was therefore limited to considering the evidence before the

Commission and was required to determine whether the

Commission's findings based on the evidence were clearly

erroneous. See HRS § 91-14(g)(5) (Supp. 2019).

Here, the Commission's finding that "Lewis engaged in

conduct that materially aided the gambling activity on the

[Homestead]" was based, in part, on partially redacted HPD

incident reports it accepted into evidence. Most of the reports

redacted the names and addresses of the parties involved, but

the Attempted Robbery Incident Report contained unredacted

information identifying "89-435 Keaulana" as a "GAMEROOM" and

depicting gaming machines on the Homestead.

Although Lewis objected to the Attempted Robbery

Incident Report being received into evidence, she did not

explain why. And nothing in the record suggests the report was

irrelevant or unreliable.

Moreover, the Commission did not solely consider

partially redacted HPD incident reports in determining Lewis

violated her Lease. It also considered Lewis's testimony. And,

as determined above, Lewis's testimony supported a finding that

she more likely than not knowingly advanced illegal gambling

activity.

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Thus, neither the circuit court nor the Commission

clearly erred in considering the partially redacted HPD incident

reports.

Based on the foregoing, we affirm the circuit court's

(1) September 27, 2023 order affirming the Commission's Order

and denial of Lewis's motion for reconsideration and

(2) September 27, 2023 Final Judgment.

DATED: Honolulu, Hawaiʻi, December 15, 2025.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Heidi Lewis,
Self-represented /s/ Keith K. Hiraoka
Respondent-Appellant- Associate Judge
Appellant.
/s/ Sonja M.P. McCullen
Craig Y. Iha, Associate Judge
Jordan A.K. Ching,
Deputy Attorneys General
for Agency-Appellee-Appellee
and Petitioner-Appellee-
Appellee.

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