KAILUA-KONA — A case about some cabbage on the highway in Hamakua made it all the way to the Hawaii Supreme Court, which reversed a Waimea judge’s decision on May 9.
The Supreme Court agreed that Hamakua farmer Max Bowman should not have been fined for having cabbage fly out of the back of his truck and it was, indeed, unreasonable to expect Bowman to run out onto the highway to retrieve it.
The case began Aug. 28, 2013, when a police officer drove past Bowman, who was driving a truck loaded with cabbages. The load was uncovered and after the officer passed Bowman, he saw cabbage leaves across the road. The officer turned around, caught up to Bowman and cited him for not having the load in the truck covered.
Although it is an offense to not cover a load while driving on the highway, the law includes a provision for agricultural producers moving goods after a harvest. As long as the owner provides “for the reasonable removal of all such produce spilled or dropped on the highway,” no cover is required, the law reads.
Because the case was simply a ticketed violation, Bowman was not entitled to a public defender. He then defended himself in a bench trial in front of Judge Melvin Fujino, who was then-District Court judge in Waimea and now presides as a Third Circuit Court judge.
After reviewing the law, Bowman felt he had a strong case and a strong understanding of how to apply it. He argued that running out on the roadway in the face of traffic wasn’t reasonable at all.
“And if reasonable removal is any indication, I feel risk of life and limb, running onto the road, grabbing three or four leaves of cabbage as opposed to letting it decompose naturally does not sound reasonable to me,” Bowman testified at the initial case.
Bowman said the amount that would have flown out would have been at most 20 leaves from the trimmings. He checked the area later that day and found nothing, which he attributed to the leaves either blowing away or being so run over that they vanished.
But Fujino didn’t see it that way. The judge, who declined to comment on the decision Monday, said the farmer should have made more of an effort.
“Now, in this case the next step that the court would ask is whether or not you reasonably removed all of these products that were spilled or dropped on the highway, and in this case the court will find that you didn’t,” Fujino said when he rendered his decision. “You just left it on the road. So had you gone and picked it up, you would have been acquitted of this charge. You understand?”
Bowman responded to the judge’s question.
“Sure,” Bowman said at the reading of the verdict. “Again, if in the court’s opinion reasonable removal entails running onto the highway to pick up 20 leaves of cabbage, then absolutely.”
Bowman was fined $250 and had a $7 driver’s education fee assessed against him.
“That’s a decent amount of money for me and my operation,” Bowman said.
He could not have afforded to appeal, he told West Hawaii Today on Monday, even though he felt his position was the right one.
“I did feel I had the correct interpretation of the law,” he said, adding the fact his mother, Jo Kim, is an attorney helped as well.
So Bowman appealed the case to the Intermediate Court of Appeals, which agreed with Fujino’s decision. At that point it was a little out of his hands, he said, and he and his mother knew they had a small chance of getting heard by the Supreme Court. The court had 523 cases filed in the 2014-15 fiscal year, and they issued 47 published opinions, including Bowman’s.
“The difficult issue is whether Bowman provided for the reasonable removal of the cabbages spilled on the highway,” the Supreme Court wrote.
The Supreme Court said there were two visions of “reasonable removal” at play. The lower courts had looked at and defined some reasonable amount of removal as meaning that removal has to be attempted, they wrote, while Bowman argued that removal was necessary only when reasonable.
The justices were “persuaded by Bowman’s argument that it was unreasonable for Bowman to risk ‘life and limb’ on a busy highway in order to pick up cabbage trimmings, especially if the trimmings posed no threat to the safety of other motorists and would naturally decompose on their own.”
They looked back at the legislative history, which showed the section was included to protect the sugar cane companies during harvest. They found that, as Bowman established he believed his actions were reasonable, the prosecution had to prove that his actions were not.
Since the prosecution failed to do so, the Supreme Court overturned the case. It ordered the $257 returned to Bowman, who said the money hadn’t appeared as of Monday. He plans to use it to bolster the farm when it is received.
Currently, Bowman’s farm is growing green onions, cilantro and romaine lettuce. They’ll return to cabbage in the winter, he said.
Looking back, he said the whole thing could have been avoided had he had some legal help at the time of the first hearing to verse him in the legalese of his defense.
“It all could’ve been avoided if I had a public defender,” he said.