Thursday, December 25, 2008

Hawai'i Adopts the Pretext Defense to Condemnation Proceedings

County of Hawai'i v. C&J Coupe Family Ltd. Partnership (HSC December 24, 2008)

Background. A large housing development by Oceanside was planned for Kona District. Between the housing area and the main highway running through Kona sits the Coupe family land. Oceanside and the County entered into a development agreement, which required Oceanside to build a by-pass to the highway. If Oceanside could not purchase the land needed for the bypass, the mayor was authorized to condemn the necessary properties. Discretion in choosing the necessary lands, however, remained with Oceanside and the bypass was under the supervision of Oceanside. After the Coupes refused to sell, Oceanside requested the County to condemn the property for the building of a road. The Council adopted a resolution finding it necessary to exercise eminent domain and the County filed a condemnation proceeding for 2.9 acres of Coupe land. As that prepared for trial, the County brought a second action seeking condemnation of 3.348 acres of Coupe land. The Coupes filed a motion to dismiss or, in the alternative, consolidate. The circuit court consolidated the actions and both went to trial. The circuit court, after a bench trial, concluded that the first condemnation was invalid, but the second one was for a public purpose and allowed it to proceed. The Coupes then filed a motion for fees and costs under the first condemnation proceeding, but it was never ruled upon and, thus, deemed denied.

The "Denied" Motion for Fees. Whenever a property is "not finally taken for public use, a defendant who would have been entitled to compensation or damages had the property been finally taken, shall be entitled, in such proceedings, to recover from the plaintiff" damages, including fees and costs. HRS § 101-27. The HSC agreed with the Coupes that even though the County prevailed on the second condemnation, it did not win the first one. This was a separate action and, thus, the Coupes were entitled to statutory damages because the property was not "finally taken for public use." And so the HSC held that the Coupes are entitled to damages. But because the motion was never ruled upon within 90 days, it was deemed denied. HRAP Rule 4(a)(3). This default denial, therefore, created an insufficient record for the HSC to determine the scope of damages and remanded the case.

The Pretext Defense. The Coupes argued that the resolution by the County was an unconstitutional taking because although it may have stated a public purpose, it was actually a pretext for the transfer of lands to Oceanside. "Private property shall not be taken or damaged for public use without just compensation." Haw. Const. Art. I § 20. The term "public use" means that it must be for "public purposes." Hawai'i Housing Authority v. Lyman, 68 Haw. 55, 68, 704 P.2d 888, 896 (1986). When the government articulates a public purpose for the condemnation, courts afford great weight to the government and will presume it to be correct. Hawai'i Housing Authority v. Ajimine, 39 Haw. 543, 549 (Terr. 1952). But according to the HSC, this deference is not unlimited. The courts will review the decision to see if it is "manifestly wrong." Id.

Based on that, the HSC held that once the government demostrated a legitimate public use for the exercise of emninent domain, a landower can challenge the stated public use on the grounds that it is a mere pretext for something "clearly and palpably of a private character." Id. This burden appears to be a heavy one. The courts still give great weight to the government's public purpose. The HSC also pointed out that the transfer of the condemned property to another private entity "may be a relevant factor in consideration of the pretext defense."

But what about Kelo? The HSC pointed out that affording the pretext defense to the condemnation proceedings is consistent with the Fifth Amendment's takings clause and the recent United States Supreme Court case, Kelo v. City of New London, Conn., 545 U.S. 469 (2005). The HSC explained that the Kelo court did not condone the transfer of property "for the sole reason that [the new landowner] will put the property to a more productive use and thus pay more taxes." Id. at 486-87. The HSC also pointed out that the Kelo court also indicated that the government may not take property "under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit." Id. at 477-78.

The HSC ultimately held that the public purpose here appeared to comport with the public use requirement under the state and federal constitutions. After all, condemnation for a road may be a "classic" case. And the transfer of condemned property to a private entity is not in itself an invalid taking. Thus, there was a prima facie showing of a legitimate public purpose. However, the HSC held that the circuit court did not allow the Coupes to demonstrate that the purpose was "clearly and palpably of a private character" so it remanded the matter back to the Big Island.

Other Issues. The HSC also held that the first condemnation proceeding did not deprive the circuit court of subject matter of the second proceeding mainly because the proceedings were not identical. They involved different parts of the Coupes property. In other words, the doctrine of abatement did not apply here. See Shelton Eng'g Contractors, Ltd. v. Hawaiian Pac. Indus., Inc., 51 Haw. 242, 249, 456 P.2d 222, 226 (1969).

Chief Justice Moon's Dissent and Concurrence. Chief Justice Moon agreed with the majority on all points, but the constitutional question. Justice Levinson joined him. According to Chief Justice Moon, the U.S. Supreme Court, in Kelo, made it clear that "a taking should be upheld as consistent with the Public Use Clause . . . as long as it is rationally related to a conceivable public purpose." Kelo, 545 U.S. at 490 (Kennedy., J., concurring.). Chief Justice Moon believed that the the rational basis test--"which includes deference to the government's statement of public purpose--remains the appropriate test for determining the constitutionality of a 'public use' under the federal constitution." But even for Chief Justice Moon, the deference afforded to the government is not absolute. He explained that "deference to the government's public purpose determination may be overcome only if the party challenging the taking makes a 'clear showing' that the government's stated public purpose is 'irrational.'" Chief Justice Moon also believed that under the Hawai'i Constitution's takings clause, the HSC has consistently applied the rational-basis test in determining the stated public use. See Kau v. City and County of Honolulu, 104 Hawai'i 468, 478, 92 P.3d 477, 487 (2004). Even under the Hawai'i Constitution, the deference is not absolute. Chief Justice Moon explained that the burden is on the party "challenging the legislative judgment to convince the court that the legislative facts on which the legislation is apparently based could not reasonably be conceived to be true[.]" HFDC v. Castle, 79 Hawai'i 64, 86, 898 P.2d 576, 598 (1995).

Under these formulations of the rational basis test, Chief Justice Moon believed the stated purpose--a bypass road to connect up with the highway--was for a legitimate public use. And this was enough for the Chief Justice. He was careful not to foreclose the possibility of a pretext defense in some cases, but the record did not warrant that this was such a case.

So what Happens now? It appears that the HSC has adopted a defense to condemnation proceedings. Under the Fifth Amendment takings clause there were two things checks on the seizure of private property by the government: (1) the taking is for a public purpose; and (2) the landowner is "justly compensated." The U.S. Supreme Court has, for some time now, adopted a deferential stance toward the first limitation. But everyone on the HSC--including the Chief Justice and Justice Levinson--believes that that deference is not unlimited. When the stated public use is a mere pretext for something impermissible--such as the condemnation for sole private benefit--the landowner should be permitted to make his or her case before the court. The dispute in the HSC appeared to be over the case itself. Chief Justice Moon and Justice Levinson found ample evidence in the record that the circuit court considered the pretext argument and defense, but disagreed. The bare majority, however, disagreed and remanded.

Has the HSC moved into uncharted waters with this pretext defense? The U.S. Supreme Court has not exactly adopted this defense just yet. Perhaps this is the case in which it may do so. The case has raised another question: which constitutional affords the pretext defense? Has the HSC looked to the federal cases in support of its interpretation of the Hawai'i Constitution? If so, then as a matter of state constitutional law, there is a pretext defense. But if the HSC distinguished Kelo and allowed the pretext defense to go through because the Fifth Amendment was not offended, then it cuts closer to an interpretation of the federal constitution, which makes it a candidate for resolution in Washington.

Monday, December 22, 2008

HSC Reassesses what Constitutes a tax.

Hawai'i Insurance Council v. Lingle (HSC December 18, 2008)

Background. The Department of Commerce and Consumer Affairs is an executive agency of the State of Hawai'i. It has an insurance division that is run by the Insurance Commissioner. In 1999 the DCCA was no longer funded by the Legislature's General Fund. Instead it was funded by private persons and entities that were regulated by the DCCA or received DCCA services. Those funds for the insurance division went into a special fund--the Insurance Regulation Fund. Funds were based on assessments made by the Insurance Commissioner and paid for the carrying out of operations by the insurance division and some of the overhead of the DCCA. The money never went to the General Fund. In 2002, the Legislature merged the special fund with another fund. The Legislature determined that there was an outstanding $4 million and directed the transfer of that money to the General Fund. The Governor by line-item veto struck it down to $2 million. The same thing happened in 2003. In all, $3.5 million was transferred to the General Fund. The Hawai'i Insurers Council sued to enjoin those transfers on the grounds that it was an unconstitutional tax. The ICA held that they were indeed unconstitutional taxes. The State appealed.

So is the Exaction a tax? The Hawai'i Constitution prohibits the executive branch from imposing taxes. Haw. Const. Art. VIII § 3. "[T]he tax can be imposed only by the legislative power." McCandless v. Campbell, 20 Haw. 411, 420 (Terr. 1920). But not all exactions are taxes. The Legislature can delegate the power to charge fees. State v. Medeiros, 89 Hawai'i 361, 366, 973 P.2d 736, 741 (1999). The distinction, therefore, hinges on whether the exaction by the executive agency was a fee or a tax. The HSC noted that a taxes are "burdens or charges imposed by legislative authority on persons or property to raise money for public purposes, or, more briefly, an imposition for the supply of the public treasury." McCandless, 20 Haw. at 420. A fee, on the other hand, was not as easy to define.

The Tried and True Service/User fee. The HSC identified two kinds of fees: the service or user fee and the regulatory fee. A service/user fee is determined by a three-prong test: (1) it is applied to the direct benefit for a particular service; (2) it was directly allocated to defraying the costs of providing that service; and (3) it was reasonably proportionate to the benefit. Medeiros, 89 Hawai'i at 367, 973 P.2d at 742. The HSC agreed with the State that this was not a service/user fee, but its analysis did not end there.

. . . And Introducing the Regulatory fee. A regulatory fee is not a tax either. A regulatory fee, according to the HSC, is a charge authorized by the police of power of promoting the public safety, health, and welfare. The HSC had never before adopted a test to determine whether the charge is a regulatory fee and here it adopted the analysis from San Juan Cellular Telephone Co. v. Pub. Service Com'n of Puerto Rico, 967 F.2d 683 (1st Cir. 1992). Under San Juan Cellular, a charge is a regulatory fee (and not a tax) when (1) a regulatory agency assesses the charge; (2) the agency places the monies into a special fund; and (3) the money is not for general purposes, but rather to "defray the expenses generated in specialized investigations and studies, for the hiring of professional and expert services and the acquisition of the equipment needed for the operations provided by law for the payor." Id. at 686.

And so the HSC applied the San Juan Cellular test here. The assessments by the Insurance Commissioner met the first two prongs easily. As for the third prong, the HSC pointed out that the monies cannot be used for a general purpose, but that it could be used to pay for the "regulation or benefit of the parties upon whom the assessment is imposed." Bidart Bros. v. California Apple Com'n, 73 F.3d 925, 931 (9th Cir. 1996). The assessments that went to pay for the overhead costs of the DCCA, according to the HSC, fit the test just fine and it was not an unconstitutional tax.

A Taxing Flow-Chart. This case presents the perfect opportunity to make one of those flow-charts from law school. The first question is whether there is any governmental entity other than the legislature exacting money. If so, then arises the question of whether the charge is a tax or a fee. Before this case, the ICA was confronted with the same question and applied the only test it saw as available: the Medeiros test. Now, however, there is an intermediate step: we need to determine what kind of fee the charge could be. If a regulatory fee, then the San Juan Cellular test applies. If a service/user fee, then the Medeiros approach controls. But how do we determine whether the fee is a regulatory one or a service/user fee? The HSC never really addressed that question. It simply declares that this particular assessment collected by the insurance commissioner was a regulatory fee because the payor did not have a direct benefit.

But if that is the distinction between the regulatory fee and the service/user fee, then what is the distinction between the regulatory fee and the tax? Justice Breyer, who wrote San Juan Cellular when he was Chief Judge of the First Circuit noted that the test is not a three-prong test in the truest sense. The First Circuit wrote that the test is to determine whether the charge is "close to the 'fee' end of the spectrum" rather than the "tax" end. San Juan Cellular, 967 F.2d at 686. So perhaps instead of asking what kind of fee, it is better to ask whether the fee passes muster under Medeiros (even if the HSC never applied it here). If so, then it is a service/user fee. If not, then we may be on that regulatory-fee-to-tax spectrum, which calls for the San Juan Cellular analysis. In the law school flow-chart, both tests apply.

Separation of Powers: the Bigger Problem? The HSC applied the San Juan Cellular test and held that the charges were not unconstitutional taxes. The court then examined whether the Legislature's bills directing the transfer of funds out of the DCCA accounts into the General Fund was a violation of separation of powers. The Hawai'i Constitution "is one in which the sovereign power is divided and allocated among three co-equal branches." Biscoe v. Tanaka, 76 Hawai'i 380, 383, 878 P.2d 719, 722 (1994). A department cannot "exercise powers not so constitutionally granted, which from their essential nature, do not fall within its division on governmental functions, unless such powers are properly incidental to the performance by it of its own appropriate functions." Id. Here, according to the HSC, the legislation directing the transfer of the money to the General Fund was an "impermissible blurring of the distinction between the executive power to assess regulatory fees and the legislative power to tax for general purposes." Thus, the $3.5 million was an unconstitutional attempt by the Legislature to convert the fees to taxes by transferring it to the General Fund. The remedy ordered by the HSC was to invalidate the transfer bills and have the money returned to the DCCA's special fund.

Other Issues. The HSC agreed with the ICA that it had subject-matter jurisdiction to hear the issue and that the assessments by the Insurance Commissioner did not violate Equal Protection provisions.

Wednesday, December 17, 2008

HSC Weighs in on when Hawaii ends its Business day.

Tataii v. Cronin (HSC December 16, 2008)

Background. Tataii ran as a Republican against Neil Abercrombie in the 2008 election. Tataii lost and filed a complaint in the HSC challenging the election pursuant to HRS §§ 11-172 and 174.5 on November 24, 2008 at 4:32 p.m.--twenty days after the election. Abercrombie filed a motion to dismiss the complaint on the grounds that it failed to state a claim upon which relief could be granted and that the filing of the complaint was untimely.

A Directory "shall" and a Mandatory "shall." A complaint alleging an election challenge "shall be filed not later than 4:30 p.m. on the twentieth day following the . . . election." HRS § 11-174.5(a). When it comes to a specific time provision in a statute is generally, "mandatory and not merely directory." Coon v. City and County of Honolulu, 98 Hawai'i 233, 255, 47 P.3d 348, 370 (2002). However, while the word "shall" is generally mandatory, it may be given a directory (or not-so-mandatory) meaning. Id. at 256, 47 P.3d at 371. In determining whether a statute is mandatory or directory, "the intent of the legislature must be ascertained." State v. Himuro, 70 Haw. 103, 105, 761 P.2d 1148, 1149 (1988). Legislative intent can be gleaned from "a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other." Id. However, "the primary duty in interpreting statutes is to ascertain and give effect to the intention of the legislature, which, in the absence of a clearly contrary expression is conclusively obtained by the language of the statute itself." Id.

Tataii's complaint was filed on the twentieth day after the general election at 4:32 p.m. Abercrombie argued the complaint was untimely. The HSC, however, disagreed. The deadline in HRS § 11-174.5(a), according to the HSC, is actually divided into two parts: the day and the time. The twenty-day deadline is mandatory because it is clear and unambiguous. However, the 4:30 p.m. deadline is "tantamount to 'the close of business'" and interpreting that portion to extend to the end of the mandatory-twentieth business day would not distort the legislative intent to keep these complaints to the twenty-day deadline. Thus, Tataii's complaint was timely.

So Hawai'i's Business ends at 4:30 p.m.? This statute is not the only one with a clear time provision. The HRS has several deadlines that end at a specific time on a specific day. Does this suggest that they too are directory? Probably not. A deadline at high noon is certainly not "tantamount to the close of business" and, would thus appear to be a mandatory cutoff point. So where does this notion that 4:30 in the afternoon signifies the end of the workday? Although the HSC did not discuss it, this could be one of those only-in-Hawai'i sort of things. Where else but Hawai'i does the business day wind down at 4:30 p.m.? Certainly the Dolly Parton song "Working Nine to Five" doesn't really apply here. Then again, working 7:45 to 4:45 is a lot harder to put into a country music song.

The Other Matter (the Merits). As for the merits of the complaint, the HSC agreed with Abercrombie that the complaint did not state a claim for relief. An election challenge "shall set forth any cause or causes . . . that could cause a difference in the election results." HRS § 11-172. The complaint challenging the results of an election fails to state a claim unless "the plaintiffs demonstrate errors that would change the outcome of the election[.]" Akaka v. Yoshina, 84 Hawai'i 383, 387, 935 P.2d 98, 102 (1997). Tataii's complaint alleged that because Abercrombie refused to debate him he lost the election. The HSC concluded that Tataii did not show that Abercrombie was required to debate. The refusal to debate was, therefore, not an "error, mistake, or irregularity that would change the results of the election" and did fail to state a claim for relief in the HSC.

Thursday, December 11, 2008

Sanctioning Attorney's Fees/Costs Requires Bad Faith

Kaina v. Gellman (ICA December 11, 2008)

Background. Kaina's son was injured in a motorcycle accident in East Maui. He was treated by Dr. Gellman at the Hana Community Health Center, of which Vasconcellos was the executive director. The day after Dr. Gellman's treatment, Kaina's son died. Kaina sued Dr. Gellman, Vasconcellos, and the Health Center for negligence and the negligent hiring of Dr. Gellman. Although they did not raise it in a motion, the defendants brought up the issue of a bifurcated trial in a reply memorandum regarding their motion for summary judgment. Ten days before trial, the circuit court, Judge August, bifurcated Kaina's claims over Kaina's objection. Judge August, upon Kaina's request, recused himself and the case was transferred to Judge Joseph Cardoza. After the recusal, Judge August issued the orders pertaining to the summary judgment and the bifurcation.

Before Judge Cardoza, Kaina filed a motion to consolidate back into a single trial. Judge Cardoza characterized the motion as a request for reconsideration of Judge August's order and denied the motion. Kaina tried to get an interlocutory appeal, but the Hawai'i Supreme Court denied the request. Kaina then brought a "Renewed Motion for Consolidation." The circuit court denied the motion and awarded attorney's fees and costs of $6,805.37 to the defendants, as requested. Kaina appealed.

Abuse of Discretion Doesn't Necessarily mean Deference. The decision to sanction is reviewed for an abuse of discretion. Gap v. Puna Geothermal Venture, 106 Hawai'i 325, 331, 104 P.3d 912, 918 (2004). An abuse of discretion arises when the lower court "bases its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence." Id. It also arises when the lower court "clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." AOAO of Kai Nui Court v. City and County of Honolulu, 118 Hawai'i 119, 121, 185 P.3d 867, 869 (App. 2008). The ICA stated two formulations for an abuse of discretion. Both of these formulations do not require the appellate court to defer to the decision below. How exactly is review for an "erroneous view of the law" or the disregard of "rules or principles of law" different from a decision reviewed de novo? That remains to be seen.

Rule 11 Sanctions: for Lawyers only. The ICA characterized the award of attorney's fees and costs as "sanctions" against Kaina. The ICA first examined whether the sanctions by the circuit court were permitted under Hawai'i Rules of Civil Procedure (HRCP) Rule 11. HRCP Rule 11(b) states that by signing a pleading or other paper filed before the court, the paper is not frivolous, not made for improper purposes, and is supported by some kind of evidence. Violations of Rule 11(b) may result in sanctions from the court, which specifically includes "reasonable attorneys' fees and other expenses." HRCP Rule 11(c). Rule 11 sanctions are initiated either (1) by separate motion filed by a party, or (2) by the court upon an order directing the party to show cause why it had not violated subsection(b). Neither circumstance arose here. Furthermore, Rule 11 sanctions "may be imposed only upon the person who signed the pleading, motion, or other paper." The sanctions here, however, went against the party, and not the party's attorney. Thus, the sanctions imposed against Kaina could not have been pursuant to HRCP Rule 11.

The Inherent Power of the Court to Sanction Requires Finding of bad Faith for Attorneys and Their Clients. HRCP Rule 11 is not the only way to get sanctioned. Hawai'i courts have the "inherent power . . . to control the litigation process before them and curb abuses and promote fair process including, for example, the power to impose sanctions for abusive litigation practices." Bank of Hawai'i v. Kunimoto, 91 Hawai'i 372, 387,984 P.2d 1198, 1213 (1999). This inherent power is codified (but not superseded by) in HRS § 603-21.9(6). Kukui Nuts of Haw., Inc. v. R. Baird & Co., Inc., 6 Haw.App. 431, 436, 726 P.2d 268, 272 (1986). But before imposing sanctions against the attorney pursuant to this inherent power, the court must first find that the attorney acted in bad faith. Bank of Hawai'i, 91 Hawai'i at 389, 984 P.2d at 1215; Enos v. Pac. Transfer & Warehouse, Inc., 79 Hawai'i 452, 458, 903 P.2d 1273, 1279 (1995) ("a particularized showing of bad faith is required to justify the use of the court's inherent power").

The ICA held that the same bad-faith finding is required for sanctions against the represented party. Moreover, the court's order must inform the party of "the authority pursuant to which he or she is to be sanctioned." Here, the ICA held that the circuit court made no finding that Kaina acted in bad faith. Moreover, according to the ICA, the renewed motion for consolidation did not exhibit any evidence of bad faith on the part of Kaina or her attorney. The award of attorneys' fees was not the correction of abusive litigation, but rather the mere shifting of the burden of attorneys' fees and costs to Kaina.

So can a Sanction EVER be an Award of fees/costs? This is not a case of an award of attorneys' fees and costs. This is all about sanctions. The ICA limited this appeal to a single issue: "whether the circuit court erred when [it] sanctioned Appellant Kaina by ordering [her] to pay Appellees' attorneys' fees and costs[.]" Here, the ICA concluded it was error and reversed. But does this mean that a court cannot award fees/costs to one party by sanctioning another? Not necessarily. After all, HRCP Rule 11(c) expressly provides for such a possibility. Furthermore, the court could also impose a sanction equal to the attorneys' fees and costs pursuant to its inherent power as long as it finds some "particularized showing of bad faith" and informs the party of its inherent authority.

Saturday, November 29, 2008

Unambiguous and Undefined terms of Endearment

Royal Kunia Community Association v. Nemoto (ICA November 28, 2008)

Background. The Nemotos lived in a planned residential community where a restrictive covenant ran with the land. The covenant stated that any "improvement" to the property was subject to the approval of a design committee; there was, however, a provision allowing "landscaping" without approval. The Nemotos sought approval to pour a slab of cement around their home. The committee approved only part of their plan and asked for more specific plans. However, the Nemotos laid the cement in front of their house, poured gravel over the cement, and deemed it a "Japanese rock garden." Months later the Community Association requested the Nemotos weigh a truck parked on their property. The covenant prohibited any trucks weighing with more a one-ton capacity near any of the lots. The Nemotos did not respond to the request and the Association investigated the weight of the truck and determined the capacity weight exceeded the one-ton capacity rule. It calculated this by subtracting the minimum "gross vehicle weight ratings" provided by the manufacturer minus the tare weight shown on the safety inspection certificate, which it had on file. Based on these incidents, the Association brought a complaint. The circuit court granted the Association's motion for summary judgment. Specifically, the circuit court concluded that the Nemotos kept a vehicle with more than a one-ton weight capacity and illegally laid a concrete pad.

Weighty (and Genuine) Issues of Material fact. Both the trial court and the appellate court, reviewing de novo, employs a three-step analysis in reviewing a motion for summary judgment: (1) identify the issues framed by the pleadings; (2) determine whether the movant established facts justifying judgment--even if opposition is weak; and (3) when there is a prima facie justification for a judgment, the opposing party demonstrates "the existence of a triable, material factual issue. Counter-affidavits and declarations need not prove the opposition's case so long as they disclose the existence of a triable issue." Wailuku Agribusiness Co. v. Ah Sam, 112 Hawai'i 241, 250, 145 P.3d 784, 793 (App. 2006). The ICA applied the three-step analysis. First, the weight of the truck is certainly at issue and is material to the case. Second, the Association made a prima facie case for judgment. Given its method of measuring the weight capacity, it would be in excess of one-ton. Finally, however, the Nemotos provided an article from the Association's newsletter that provided an alternative method of determining the truck's weight capacity. Under that alternative method, the truck was not in excess of the one ton. The ICA with the Nemotos that this alternative method of weighing the truck makes the issue a disputed and, therefore, triable.

Ambiguous Covenant terms Construed Against the Drafter/Enforcer. The covenant, according to the ICA, required approval by the design committee of "improvements, alterations, landscaping, and other work on property that may be visible from neighboring properties or the street." The Association claimed that pouring cement and spreading gravel to make a "Japanese rock garden" breached the covenant. The Nemotos counter that the covenant was ambiguous because the term "landscaping" was undefined and ambiguous. When construing a restrictive covenant, the intention of the parties are determined by the language of the deed. Hiner v. Hoffman, 90 Hawai'i 188, 190, 977 P.2d 878, 880 (1999). "Moreover, substantial doubt or ambiguity is resolved against the person seeking its enforcement." Id.

An Undefined term is not Necessarily an Unambiguous term. The ICA agreed with the Nemotos that the term "landscaping" was undefined, but it did not find the covenant ambiguous. According to the ICA, "an ambiguous term is not an undefined term, but one that yields more than one meaning." And as long as the terms of the covenant are not ambiguous, i.e. "not capable of being reasonably understood in more ways than one," the terms must be interpreted according to their plain, ordinary, and accepted sense in common speech. Pelosi v. Wailea Ranch Estates, 10 Haw. App. 424, 436, 876 P.2d 1320, 1327 (1994). The ICA looked up the word "landscape" in the dictionary and concluded that the term had many meanings, but could be characterized as activities changing the environment for the sake of aesthetic improvement. According to the ICA, a "Japanese rock garden" is certainly an alteration for the sake of aesthetic improvement and so the covenant was unambiguous and enforceable against the Nemotos.

And a Broad term is not Necessarily Unambiguous Either. So an undefined term does not automatically render it ambiguous. And even when the term itself encompassed a wide variety of activities, the ICA did not find it "capable of being reasonably understood in more ways than one." At first blush it would seem that such a broad term was capable of different meanings thereby making it ambiguous after all. But a broad term that encompasses a lot of different activities does not change the underlying meaning of the term. The varied activities constituted "landscaping" all have something in common: they were aesthetic improvements to the land.

The Other Issues. The ICA resolved the other issues raised by the Nemotos and rejected them all. It first held that the Nemotos waived issues relating to the admission of allegedly hearsay evidence because it was not raised before the circuit court. It also held that the circuit court did not abuse its discretion in denying the Nemotos' motion to continue, in granting the Association a mandatory injunction to remove the slab, and in denying the motion to reconsider.

Tuesday, November 18, 2008

The Limits of Forfeiture

Carlisle v. One Boat (HSC November 17, 2008)

Background. DLNR officers stopped a boat off the coast of Waianae. They saw the boat operators pulling up a net without a diver in the water. Pieces of coral were in the nets. The State petitioned the circuit court to forfeit the boat based on violations of DLNR administrative rules preventing the taking of stony coral. HAR §§ 13-95-70 and 13-95-71. The claimants moved to dismiss the petition on the grounds that the violations were not "covered offenses" and thus the State had no power to forfeit the coral. The circuit court agreed with the claimants and dismissed the petition by an order. However, the judgment was prepared by the State two years later. Once the judgment was entered, the State appealed to the ICA, which found appellate jurisdiction and reversed the circuit court.

An Appealable Order is a Final one. The HSC agreed with the ICA that there was appellate jurisdiction. In a civil appeal, the notice of appeal must be filed within 30 days after entry of the "judgment or appealable order." Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(a)(1). Every judgment must be set forth in a separate document. Hawai'i Rules of Civil Procedure (HRCP) Rule 58. An appealable order is an order that "resolv[es] claims against parties only after the orders have been reduced to a judgment[.]" Jenkins v. Cades Shutte Fleming & Wright, 76 Hawai'i 115, 119, 869 P.2d 1334, 1338 (1994). The HSC noted that while there may be some exceptions to this bright-line rule, see Ditto v. McCurdy, 103 Hawai'i 153, 80 P.3d 974 (2003) and State Child Support Enforcement Agency v. Doe, 98 Hawai'i 58, 41 P.3d 720 (App. 2001), there was no exception here. Thus, there was proper appellate jurisdiction.

Heavy Reading. The HSC rejected the ICA's interpretation that DLNR violations are "covered offenses" under the forfeiture law pursuant to HRS § 199-7(b). Instead, its analysis began with the forfeiture law. Property is subject to forfeiture when it is used in the commission of a "covered offense." HRS § 712A-5(b). A "covered offense" is defined as any crime set forth in 712A-4 or "any other offense for which forfeiture is provided by the law[.]" HRS §712A-1. HRS § 712A-5 provides that offenses "for which property is subject to forfeiture under this chapter" include "[a]ll offenses which specifically authorize forfeiture." HRS § 712A-5(a). Other offenses are very specific (e.g. murder, kidnapping, gambling, etc.). The HSC explained that the definition of a "covered offense" provides two categories--those "crimes set forth in section 712A-4" and "any other offense for which forfeiture is proved by law[.]" The HSC interpreted this second category to mean the catchall in HRS § 712A-5(a). And so, the question is whether the DLNR violations here "specifically authorize[d] forfeiture." The HSC examined the administrative rules and the incorporating statutes and held that nothing in them authorized the State to bring a forfeiture action. Thus, the ICA erred in vacating the circuit court.

DLNR's Power to Forfeit Non-Natural Resources does not Circumvent the Forfeiture law. The HSC's interpretation of a plain statute is completely different from the ICA's interpretation of the same plain and unambiguous language. Unlike the HSC, however, the ICA looked to legislative history to support the plain-language interpretation. This, according to the HSC, was unnecessary. "Even when the court is convinced . . . that the legislature really meant and intended something not expressed by the phraseology of the act, it has no authority to depart from the plain meaning of the language used." State v. Klie, 116 Hawai'i 519, 526, 174 P.3d 358, 365 (2007). Nevertheless because of the differing interpretations and because "the result reached by the ICA may be appealing," the HSC examined the ICA's reliance on the legislative history.

"Any equipment, article, instrument, aircraft, vehicle, vessel, business records, or natural resource seized [by DLNR] is subject to forfeiture pursuant to chapter 712A." HRS § 199-7(b). The HSC observed the long legislative history of this provision and summed up that it did not "operate[] as a blanket authorization for forfeiture[.]" If forfeiture is authorized and the item is a natural resource, then it can forego the court proceedings in HRS chapter 712A. However, when the property is a non-natural resource, it must be a "covered offense."

So how Unambiguous is it when Differing Opinions Arise? The HSC concluded that reliance on legislative history was unnecessary, because the statute was plain and unambiguous. But because the ICA went ahead and did it, and because differing interpretations stemmed from the same unambiguous statute, it was compelled to examine legislative history. It appears that neither the HSC nor the ICA dispute that the language to these statutes were plain and unambiguous. But how can a statute be unambiguous when reasonable minds differ on its meaning? Isn't an ambiguous statute one where "there is doubt, doubleness of meaning, or indistinctiveness or uncertainty[?]" In re Water Use Permit Application, 116 Hawai'i 481, 489-90, 174 P.3d 320, 328-29 (2007). Aren't the reasonable, but differing, interpretations evidence of ambiguity? Perhaps so. But even if the HSC did state from the get-go that the statute was ambiguous, the outcome would probably have not changed. The HSC still investigated into the legislative history as if it would for an ambiguous statute. All's well that ends well. Right?

Monday, October 27, 2008

When Holding is not "Maintaining"

Nu'uanu Valley Association v. City and County of HNL (HSC October 24, 2008)

Background. A landowner sought to develop approximately 50 acres of steep mountainside property in upper Nu'uanu Valley. The landowner submitted an application to the City's Dept. of Planning for approval of developing nine residential lots. The Nu'uanu Valley Assocation, a non-profit organization, requested from the City copies and inspection of all comments and engineering reports pertaining to the proposed subdivision. The City explained that its comments on submitted reports are sent back to the applicant. Nothing becomes available until they have been "accepted" by the City. After the City "accepted" a drainage report, it was made available for copying. The NVA sued the City alleging violations of the Uniform Information Practices Act (HRS chapter 92F) and the Hawai'i Environmental Policy Act (HRS ch. 343) because an environmental assessment was not done. The City prevailed with a summary judgment.

Not a Gov't Record Because it was not "Maintained." Generally, "[a]ll government records are open to public inspection[]" and "an agency upon request by any person shall make government records available for inspection and copying[.]" HRS § 92F-11. A "government record" means information "maintained by an agency" in any physical form. HRS § 92F-3. The NVA claimed that the initial engineering report with its comments from the City became a "government record" the moment it was received from the City. Thus, it was open to copying and inspection before it was "accepted." Although the HSC acknowledged that the UIPA was based on a uniform code that defined "maintain" to include just about anything the agency held in its custody, it rejected NVA's contention.

Hawai'i's UIPA does not impose a duty on the agency to "maintain records." SHOPO v. Soc'y of Prof'l Journalists-Univ. of Hawai'i Chapter, 83 Hawai'i 387, 400 n. 8, 927 P.2d 386, 392 n. 8 (1996). Instead, it requires the agency to provide access only to those government records that are actually maintained. Id. at 401, 927 P.2d at 393. Thus, according to the HSC, if HRS § 92F-11 is interpreted so that an agency "maintains" a record the moment it receives it, then the statute would be imposing an affirmative obligation. This interpretation, according to the HSC, cannot stand. The HSC concluded that the question hinged on whether the City chose to retain possession or control of the record. In this case, the HSC pointed out that an unaccepted reports were immediately returned to the landowner. Accepted reports were filed and made available to the public. This, explained the HSC, clearly demonstrated that the accepted reports were chosen by the City to be in its custody and were thus "maintained" records. Thus, the unaccepted reports with comments from the City were not "maintained" and thus not "government records" under the UIPA.

The Subtle Distinction Between Maintaining and the duty to Grant Access: the Agency has a Choice? The HSC rejected an interpretation that any government record kept in the custody of an agency was "maintained." The HSC explained that the UIPA did not impose a duty to hold any records, but rather grant access to those records it happens to have. But is it possible for an agency to have a record without imposing this duty to hold it? Apparently not. And so an agency has a choice to keep a record. When it does, then it is "maintaining" that document.

The City's Gotta Follow its own Rules. The City may have been in compliance with the UIPA, but its own rules proved to be a stumbling block. "Department files are public records and may be examined upon request. Permit files include applications, director's reports, maps and drawings, written testimony, correspondence, tape recordings or written minutes of proceedings, orders, and all other pertinent documents." DPP Rules § 1-2(b)(2). Moreover, the City must "maintain and update a master file of building permit applications, subdivision applications, land use permits, and land use designations on Oahu." DPP Rules § 1-3(b)(2). The HSC held that under these rules, the unaccepted reports would be part of the landowner's "file," which in turn could be examined upon request.

And the Rules Themselves must be Known. Furthermore, agencies must make available for public inspection all rules and policies formulated, adopted, or used by the agency in discharge of its functions. HRS § 91-2(a)(3). No agency rule shall be valid unless it is published, available for public inspection, or until a person has actual knowledge of that rule. HRS § 91-2(b). The HSC held that the procedures of the City's file maintenance were agency "rules" under HRS chapter 91. It also noted that the record does not show any evidence that the NVA was aware of these rules before making the request. Nor did the City argue that the rules were published or made available to the public. Thus, the HSC held that the rules were could not be invoked against the NVA pursuant to HAPA.

No Construction, no use, no HEPA. HEPA applies to certain governmental actions. In this case, the NVA argued that HEPA applied because the approval of the drainage plans and other measures that crossed over State lands. Under HEPA, "an environmental assessment shall be required for actions that . . . [p]ropose the use of state or county lands[.]" HRS § 343-5(a)(1). However, when the proposed action has "minimal or no significant effects" no assessment is necessary. HRS § 343-6(a)(7). The proposed use in this case was the connecting of the landowner's sewer lines to the City's lines. The HSC declined to apply the plain and ordinary meaning of "use" because it was inconsistent with the stated purpose of HEPA. See HRS § 343-1. Instead, the HSC held that the drain was not a "use" because "the evidence indicate[d] that [the landlord's] drainage and sewer lines merely connect to [another system] and existing county lines without requiring construction or tunneling beneath state or county lines." HRS § 343-1; Sierra Club v. Office of Planning, State of Hawai'i, 109 Hawai'i 411, 415-16, 126 P.3d 1098, 1102-03 (2006); Citizens for the Protection of North Kohala Coastline v. County of Hawai'i, 91 Hawai'i 94, 103, 979 P.2d 1120, 1129 (1999); Kahana Sunset Owners Ass'n v. County of Maui, 86 Hawai'i 66, 71, 947 P.2d 378, 383 (1997). Moreover, the easement which was a hiking right of way granted to the then Territory of Hawai'i was not implicated and that too was not going to be used.

And no Preliminary Injunction Either. Finally, the HSC did not find an abuse of discretion when the circuit court declined to order a preliminary injunction which would stop the City from processing the subdivision application and force the City to turn over all engineering reports. The HSC agreed with the circuit court that the NVA failed to show irreparable harm in not getting all of the documents in time. See Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Hawai'i, 117 Hawai'i 174, 211, 177 P.3d 884, 922 (2008) (the three-part balancing test).

Justice Acoba's Concurrence. Justice Acoba wrote separately to explain two points. First, Justice Acoba agreed that the City's own rules must be followed and that under those rules, it plainly and unambiguously mandates that it give the NVA access to the engineering reports. However, Justice Acoba took issue with the majority defining "maintain" with the agency's choice "to retain possession or control of the records." Justice Acoba "would not foreclose from judicial review situations where documents are not retained in order to circumvent the public disclosure requirements of the UIPA." Second, Justice Acoba believed there was no evidence whatsoever showing that the sewer connect would arise to "use" thereby triggering HEPA. Justice Acoba explained that the roadway extension "under which the hookup would apparently be constructed has not yet been dedicated to the state or county as a public street."

Thursday, October 23, 2008

Where There's a Right of Action, There's a way


Pono v. Molokai Ranch
(ICA October 21, 2008)

Background. Molokai Ranch owned agricultural lands on the western end of Molokai. The Ranch asked the then-Mayor Linda Crockett Lingle and other Maui County officials if commercial campgrounds could be developed on these lands and, if so, what permits were needed. The County informed the Ranch that development was possible and that permits were needed for tents, yurts, and other camping facilities. The Ranch got the permits and started developing. An unincorporated association of Molokai residents called Pono sued the Ranch, Maui County, and the mayor and her officials. Pono sought a declaratory order stopping the development because it violated the state land use law (HRS ch. 205) and county zoning laws. The circuit court dismissed those counts because it failed to exhaust administrative remedies--it did not bring their claim before the County's Board of Variances Appeals--and, thus, had no subject matter jurisdiction.

Exhausting Administrative Remedies Impossible Without a Right to Bring a Cause of Action. The ICA majority--Judges Watanabe and Fujise--never examined the circuit court's application of the doctrines of primary jurisdiction and the exhaustion of administrative remedies. Instead, it held that Pono had no standing to enforce HRS chapter 205 against the Ranch. Pono sought a declaratory judgment and, according to the ICA, "in order for a private citizen to seek a declaratory judgment that a statute has been violated, the private citizen must, as a threshold matter, have a private right of action to enforce the statute." To determine whether a private remedy implicitly lies in a statute, the court examines three factors: (1) whether the plaintiff is "one of the class for whose especial benefit the statute was enacted" (i.e. "does the statute create a right in favor of the plaintiff?"); (2) any indication of legislative intent to create or deny such a remedy; and (3) whether the remedy is consistent with the underlying purposes of the legislative scheme. Rees v. Carlisle, 113 Hawai'i 446, 458, 153 P.3d 1131, 1141 (2007) (quoting Reliable Collection Agency v. Cole, 59 Haw. 503, 507, 584 P.2d 107, 109 (1978)).

Under the first factor, the ICA concluded that, unlike HRS § 205A-6, which provides "any person or agency" to bring a cause of action for violations of the Coastal Zone Management Area, nothing in HRS chapter 205 "expressly authorizes a private individual to enforce the chapter." To support its conclusion, the ICA pointed to examples in the HRS where the legislature provided a private cause of action to enforce a statute, and succinctly stated that "when the legislature desires to provide a cause of action to Hawai'i's citizens to remedy a statutory violation, it knows how to do so and has done so[.]" The ICA then examined the legislative history behind HRS chapter 205 and concluded that the legislative record was silent on whether a private right of action was intended.

Finally, the ICA concluded that one of the purposes behind HRS chapter 205 was "to preserve, protect, and encourage the development of the lands in the State for those uses to which they are best suited for the public welfare[.]" The ICA also pointed out that enforcement of these statutes went to county officials, and not the Land Use Commission. In Lanai Co. v. Land Use Comm'n, 105 Hawai'i 296, 97 P.3d 372 (2004), the HSC looked to the same legislative record and held that if the legislature intended to grant the LUC enforcement powers along with the county, it would have done so. Id. at 318-19, 97 P.3d at 394-95. In light of that, the ICA concluded that "it would be incongruous to hold that the legislature intended to grant private citizens a right to enforce[.]" In other words, the county is the exclusive enforcing party of HRS chapter 205.

Even when it Abdicates? The third factor in the Rees test is whether the private right of action would be "consistent with the underlying purposes of the legislative scheme." Here, the scheme in HRS chapter 205 was to allow the State to zone land use. It created the Land Use Commission to make such changes. It also delegated the counties as the enforcing party. HRS § 205-12. In Lanai, the HSC more or less held that the county is the sole enforcer of land use laws. Thus, the ICA held that it would be illogical to extend a private cause of action to private parties. Other than the logic of the Lanai decision, nothing foreclosed the possibility that a private cause of action might have been consistent with the purposes behind the land use laws. But then again, the ICA stated that affording a private right of action based on mere legislative silence is a "hazardous enterprise, at best." Touche Ross & Co. v. Redington, 442 U.S. 560, 571 (1979).

So What do you do when the Government Doesn't act? This leads to an interesting point. Arguably, the County did nothing to enforce the land use provisions and, thus, the County--as sole enforcer of these laws--abdicated. Does Pono have standing to bring an action against the County (rather than the Ranch) seeking a declaratory order to enforce the land use laws? In other words, does Pono have a private right of action to compel the County to do its job? And do the Rees factors even apply? Probably not. It is unclear what statute requires the executive branch of any government to, well, enforce the laws. After all, a complaining witness cannot sue a prosecutor for refusing to bring criminal charges against a defendant. In that case, a private citizen may have to look for relief elsewhere--such as political pressure, lobbying, urging others to "vote the bums out." That, obviously, did not happen here.

Judge Foley's Concurrence. Judge Foley wrote separately because he believed that there was no error in dismissing for Pono's failure to exhaust administrative remedies. See Kona Old Hawaiian Trails v. Lyman, 69 Haw. 81, 73 P.2d 161 (1987). Judge Foley believed that Pono failed to exhaust its administrative remedies because it did not appeal the County's decision to allow the development to the BVA. As for the counts against the County, Judge Foley found no error. Judge Foley explained that the County officials had the authority, under HRS chapter 205, to interpret the land use laws and its procedure. Judge Foley did not address the majority's position.

Thursday, October 16, 2008

Prejudice Pushes Aside Mootness Doctrine

Hamilton v. Lethem (HSC October 14, 2008)

Background.
Hamilton, the mother, filed a temporary restraining order on behalf of her daughter against Lethem, the father. At the hearing on the TRO, Lethem raised the parental justification defense, but the family court confirmed the TRO. Lethem appealed to the ICA and while it was pending, the TRO expired. The ICA concluded that the appeal was moot and no exception applied. A majority proceeded onto the merits of the appeal, reversed the family court, and ordered the family court to dismiss the case. Judge Foley dissented because he believed the appeal should have been dismissed for mootness.

The Mootness Doctrine. A case is moot "where events subsequent to the judgment of the trial court have so affected the relations between the parties that the two conditions for justiciability relevant on appeal--adverse interest and effective remedy--have been comprised." Lathrop v. Sakatani, 111 Hawai'i 307, 312-13, 141 P.3d 480, 485-86 (2007). In this case Lethem did not dispute the applicability of the mootness doctrine. When the TRO expired, there was neither an adverse interest nor effective remedy for the ICA to address. Lethem instead argued that at least one of the exceptions to the mootness doctrine applied.

The Capable-of-Repetition-yet-Evading-Review Exception. Under this exception, a court will hear the case despite its mootness when governmental action "evade[s] full review because the passage of time would prevent any single plaintiff from remaining subject to the restriction complained of." In re Thomas, 73 Haw. 223, 226-27, 832 P.2d 253, 255 (1992). A TRO expires after 90 days. HRS § 586-5. Given this short time-span, it is always going to evade review. McCabe Hamilton & Renny Co. v. Chung, 98 Hawai'i 107, 117, 43 P.3d 244, 254 (App. 2002). Thus, according to the HSC, the only question was whether these facts were "capable of repetition." Again the HSC looked to McCabe, and determined that in order to be capable of review, the record must demonstrate some "reasonable expectation that the alleged violation would recur." Id. at 119, 43 P.3d at 256. The HSC noted that the daughter in this case reached the majority age and would no longer be subject to her parents' custody dispute. Furthermore, there is nothing showing that another TRO would emerge.

A Two-Part test? At first glance, it appears that the standard for the entire exception is formulated in Thomas. But if that were so, then the exception would apply every time governmental action--in this case the continuance of the TRO--evades review because time prevented the plaintiff from complaining. This clearly explains the "evades review" part, but it does not account for the "capable of repetition" part. Perhaps that's where the "reasonable expectation" of repetition comes in. So is this a two-part test? Does this mean that to meet this exception, the governmental action must evade review ala Thomas and there must be a reasonable expectation that the challenged violation will continue? If that is the case, then it appears to be a two-part test more so than a single formulation under Thomas.

The Public-Interest Exception. Under this exception, the court must examine (1) the public or private nature of the question presented; (2) the desirability of an authoritative determination for future guidance of public officers; and (3) the likelihood of future recurrence of the question. Doe v. Doe, 116 Hawai'i 323, 327, 172 P.3d 1067, 1071 (2007). Here, the HSC agreed with the ICA that this dispute was private in nature and did not involve questions affecting the public interest. In doing so, it rejected Lethem's contention that his constitutional right to raise (and discipline) his children and the intrusive nature of the TRO process has on families. The HSC explained that this exception typically applies to cases that "focus[] largely on political or legislative issues that affect a significant number of Hawai'i residents." See, e.g., Id. at 327, 172 P.3d at 1071 (in the public interest to review a family court's ruling on a grandparent's constitutional challenge to restrictive visitation rights); Kaho'ohanohano v. State, 114 Hawai'i 302, 333, 162 P.3d 696, 727 (2007) (appeal would affect all state and county employees); Right to Know Committee v. City and County of Honolulu, 117 Hawai'i 1, 9, 175 P.3d 111, 119 (App. 2007) (whether county body had to conduct business in full public view and in compliance with Sunshine Law more public in nature than private). In contrast to those cases, the HSC held that this case was "of a purely personal nature" that did not involve political or legislative matters affecting a significant number of people. Thus, this exception did not apply either.

Justice Acoba's Concurrence. Justice Acoba agreed with the HSC majority in every respect but this one. Justice Acoba believed that when fundamental constitutional rights are at issue, the public-interest exception is applicable even if it did arise in a purely private dispute. Justice Acoba explained that reviewing and interpreting challenges based on a violation of constitutional rights "provided needed guidance on fundamental issues of public importance[.]" Justice Acoba applied the other two prongs to illustrate the importance in allowing the case to proceed. He believed that the family court would benefit from a decision examining whether the parental discipline defense is appropriate in TRO proceedings. He also believed that it "is highly likely, if not certain, that the fundamental question of a parent's right to discipline and participate in the raising of his or her child will arise" again. According to Justice Acoba, this case presented fundamental constitutional rights and that should have been weighty enough to get beyond the first prong.

And Introducing the Collateral-Consequences Exception! The HSC explicitly adopted another exception to the mootness doctrine thereby allowing a case should be heard when the effect of the decision would have "collateral consequences" on the party seeking relief. Specifically, the litigant must show "a reasonable possibility that prejudicial collateral consequences will occur." Putnam v. Kennedy, 900 A.2d 1256, 1261-62 (Conn. 2006). These consequences must be more than conjecture but can be less than preponderant evidence. Id.

What kind of Prejudice are we Talking About? While it is unclear how diverse the prejudice may be, the HSC here specifically addressed the prejudicial consequences to a person's reputation in being found guilty of a TRO based on abuse. In evaluating a harmed reputation, the HSC revisited State v. Bani, 97 Hawai'i 285, 36 P.3d 1255 (2001), where the HSC examined the detrimental effects of the sex-offender registry. In that case, the HSC concluded that the registry (1) implied that the litigant was potentially dangerous and thus undermined his reputation and standing in the community; (2) could result in potentially reluctant employers and landlords; (3) could adversely affect his personal and professional life, employability, and associations. Id. at 294-96, 36 P.3d at 1264-66. It also had the potential to expose the litigant to vigilantism and physical violence. Id. at 291-92, 36 P.3d at 1261-62. The HSC admitted that although TRO based on abuse is less serious than a conviction for a sex offense, it still has the stigma of making Lethem a potentially dangerous person which undermines his standing in the community, it could result in reluctant landlords and employers, and it could affect his personal and professional life. Thus, the HSC applied the new exception here.

The Parameters of this new Exception. This exception has the potential for expansive application. Putnam explains that "[t]he array of collateral consequences that will preclude dismissal on mootness grounds is diverse, and includes harm to a defendant's reputation as a result of the judgment at issue." Putnam v. Kennedy, 900 A.2d at 1261-62. Furthermore, the HSC pointed to two cases that applied the exception in two very different ways. See In re Doe, 81 Hawai'i 91, 912 P.2d 588 (App. 1996) (collateral consequences exception applied where divorce order awarding full custody to mother as it had a direct impact on father's right to visit his children); Carafas v. LaVallee, 391 U.S. 234 (1968) (although moot because defendant served sentence, the detrimental affect conviction bore on his ability to serve as a labor union official was a prejudicial collateral consequence). These two cases may serve as examples of this new-fangled exception in different contexts. It may also mean that the impact of a decision, while moot, need not be confined to harm of a party-litigant's reputation.

The clearest example may be an appeal from a conviction for a sex offense after the defendant served his or her sentence. Having to constantly register on the sex-offender registry is obviously a prejudicial collateral consequence. The same could be argued for a felon's inability to possess a firearm. The impact that has on a person's constitutional right to bear arms (like a parent's constitutional right to visit his or her children) is impacted. Then again, it is too early to say. Read narrowly, the collateral-consequences exception could be limited to just TROs based on abuse and the prejudice may be limited to harm to a person's reputation. We will have to just wait and see.

Wednesday, October 8, 2008

Constitutional Challenges to Evidentiary Rulings and a Contested Election

State v. Kassebeer (HSC September 30, 2008)

Background. Kassebeer and his ex-wife, the complaining witness, were still having sexual relations. One night Kassebeer saw the complaining witness and was convinced that she was seeing someone else. In the early morning hours of 4-10-04, Kassebeer to her apartment in search of evidence that she was sleeping with another man. When she got home, Kassebeer grabbed her, covered her mouth, and confronted her with his suspicions. She was talking with her friend, Hashimoto-Matautia, when she got home on her cell phone. Hashimoto-Matautia called the police, but nothing came of it. That afternoon, Kassebeer went back to the complaining witness's, but she was not at home. The people who took him there had to leave, and he was alone in her apartment. He saw her coming home on her cell phone and waited for her. According to the complaining witness, Kassebeer was forceful and raped her when she got home. During that time, Hashimoto-Matautia came to the apartment and called the police. The complaining witness also testified that Kassebeer called his friend and taunted him about hiding his handgun. Kassebeer said that he took the gun and was going to take the complaining witness hostage. Kassebeer testified that when the complaining witness found him in her apartment, he said that he did not want to cause trouble. According to Kassebeer, they had a discussion about their relationship which led to consensual intercourse. During that time, Hashimoto-Matautia started banging on the door. Hashimoto-Matautia saw him. Kassebeer admitted that he brought the gun, but he kept it hidden under the bed. Kassebeer was indicted for sexual assault in the first degree (HRS § 707-730(1)(a)), sexual assault in the third degree (HRS § 707-732(1)(f)) and kidnapping (HRS § 707-720(1)(e)). The jury found him guilty of sexual assault in the first and kidnapping.

The Handgun Goes in. Kassebeer argued that the circuit court erred in allowing the handgun to go into the jury room. The HSC pointed out that Kassebeer did not object to the admission of the handgun until the end of the prosecution's case-in-chief, and, therefore, he waived the argument on appeal. HRE Rule 103(a)(1). The HSC also held that the gun was nonetheless relevant to show the "state of mind requisite to the charged offense of kidnapping-with-the-intent-to-terrorize." Thus, there was no error. The HSC did not, however, engage in a lengthy HRE Rule 403 analysis.

It is Always Damaging, but is it Prejudicial? The HSC did, however, undergo a thorough HRE Rule 403 analysis for Kassebeer's contention that the jury was not permitted to hear evidence of the incident in the complaining witness's apartment during the early morning hours of 4-10-04. Kassebeer first argued that the incident had little probative value because of the span of time between the incident and the alleged rape and kidnapping. The HSC simply disagreed. See State v. Sweat, 606 S.E.2d 508, 515-16 (S.C. Ct. App. 2004). As for the unfair prejudice, the HSC did not find the prejudice "unfair." The HSC explained that all probative evidence of the State is prejudicial, State v. Klafta, 73 Haw. 109, 115, 831 P.2d 512, 516 (1992), but unfair prejudice brings an "undue tendency to suggest [a] decision on an improper basis." Kamaka v. Goodsill, Anderson, Quinn and Stifel, 117 Hawai'i 92, 116, 176 P.3d 91, 115 (2008). Kassebeer's argument that the evidence is "so probative that he felt compelled to take the stand," according to the HSC, is "not in any way 'unfair.'"

Kidnapping Verdict had to be Unanimous, and it was Unclear. The HSC next examined whether the verdict for kidnapping was unanimous. When "separate and distinct culpable acts are subsumed within a single count . . . and the defendant is ultimately convicted . . ., the defendant's constitutional right to a unanimous verdict is violated" unless (1) at or before the close of the State's case-in-chief, the State elects the specific act; or (2) the trial court instructs the jury that "all twelve . . . must agree that the same underlying criminal act has been proved beyond a reasonable doubt." State v. Arceo, 84 Hawai'i 1, 32-33, 928 P.2d 843, 874-75 (1996); State v. Valentine, 93 Hawai'i 199, 208, 998 P.2d 479, 488 (2000). One way to "elect" can be by silence. When the prosecutor makes "no effort . . . to develop the facts necessary to establish [one of the separate and distinct culpable acts] . . . or to argue that the aforementioned act constituted a violation, . . . the prosecution made an effective election[.]" State v. Maumalanga, 90 Hawai'i 58, 64, 976 P.2d 372, 378 (1998). The State contended that it made a Maumalanga election by referencing the afternoon incident (as opposed to the early morning incident) during the prosecution's closing argument, but the HSC disagreed. The HSC explained that the State developed the facts needed to establish that the kidnapping offense occurred during the early morning hours of 4-10-04 as opposed to the afternoon. Thus, even though the State avoided reference to the morning incident, "the decision to elicit testimony developing the facts [of that incident] trumps the silence[.]" Furthermore, the HSC pointed out that "the prosecution's closing argument, without more, cannot take the place of a specific unanimity instruction." Thus, without the election and in the absence of a unanimity instruction, it was plain error.

Contesting an Election. The Maumalanga test is formulated in the negative (e.g. neither . . . nor). Thus, in order to make a proper election by silence, the prosecutor must not (1) develop the facts necessary to establish one of the separate and distinct acts; and (2) argue that the act constituted a violation. How does a prosecutor make such an election? First of all, there is the problem with timing. Under Arceo, the election must take place "at or before the close of the State's case-in-chief." But it appears that under Maumalanga, the election is not made until the State makes no effort to develop facts establishing the act--presumably during the case-in-chief--and argue that that act constituted a violation--presumably at closing argument. That matter was not cleared up here. The HSC held that the State made no such election because it made distinct efforts to develop facts during its case-in-chief. This leads to the second problem. How much is an "effort to develop facts"? It could be a matter of degree.

A Slip of the Tongue. When the circuit court judge sustained the State's objection at trial, he said "offense" as opposed to the "alleged offense." Kassebeer argued to the however, believed that this "miscue" did not arise to bias or the "appearance of advocacy or partiality." United States v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001). Moreover, the jury was instructed to disregard any remarks the judge made during the trial (other than instructions), especially remarks that would suggest impartiality. Juries are presumed to follow the instructions. State v. Hague, 103 Hawai'i 38, 59, 79 P.3d 131,152 (2003). The HSC held that the judge's remark it did not have a substantial and injurious effect on the jury and that the instruction was a proper cure of any misstatement.

Evidentiary Rulings still have to be Constitutional. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against the accused . . . ." Hawai'i Const. Art I, section 14. This right gives the accused the "opportunity to challenge the credibility and veracity of the prosecution's witnesses and an occasion for the jury to weigh the demeanor of those witnesses." State v. Fields, 115 Hawai'i 503, 512, 168 P.3d 955, 964 (2007). The HSC pointed out that while a defendant has a constitutional right "to present any and all competent evidence in his defense," State v. Horn, 58 Haw. 252, 255, 566 P.2d 1378, 1380 (1977), this right may "bow to accommodate other legitimate interests in the criminal trial process." State v. Pulse, 83 Hawai'i 229, 246, 925 P.2d 797, 814 (1996).

And it was for the Police Officer. The circuit court through evidentiary rulings prevented Kassebeer from cross-examining the investigating officer and the complaining witness. The officer testified that the complaining witness's injuries were consistent with her version of what happened. On cross-examination, Kassebeer attempted to ask the officer with the complaining witness's statement that the injuries came from another incident. The circuit court, however, sustained the State's objection to lack of foundation. The HSC held that the circuit court correctly ruled on the lack of foundation and that there was no constitutional infirmity because Kassebeer had the opportunity to lay the required foundation, but Kassebeer never took it.

But not for the Complaining Witness. It was a different story for the complaining witness. Kassebeer asked if she remembered reporting to the police that she told Hashimoto-Matautia to call the police because she was raped. She said she could not remember so Kassebeer attempted to refresh her memory by having her review her statement. The State objected because that question was asked and answered and the circuit court sustained. The HSC held that the circuit court's ruling was erroneous because the complaining witness did not have an "uninterrupted opportunity" to answer the question. The HSC also found this error reversible. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]" HRE Rule 103(a). Here, the preclusion impaired Kassebeer's ability to impeach the complaining witness's testimony with inconsistent statements. The circuit court interfered with Kassebeer's laying of foundation to introduce a prior inconsistent statement. HRE Rule 613(b).

Hawai'i's Legitimate-Interest Test? The language allowing a constitutional limitation to the defendant's right to present evidence and challenge witnesses for the prosecution was identical to the language adopted by the HSC majority in State v. Pond, announced the day before this case. In that case, the legitimate-interest test was applied to a constitutional challenge of the notice requirements in HRE Rule 404(b). In this case it is cited as the standard in measuring a constitutional challenge to other evidentiary rulings. The cases that quote the language here, however, come from the HSC and apply strictly to the Hawai'i Constitution. In Pond, the language came from the United States Supreme Court and incorporated the Sixth Amendment. To complicate matters, Justice Acoba dissented from the majority in Pond and urged a different test from State v. Peseti, 101 Hawai'i 172, 65 P.3d 119 (2003). Justice Acoba, however, did not dissent here. From these two cases, announced within twenty-four hours of each other, a standard in challenging the constitutionality of the rules of evidence and evidentiary rulings may have emerged. It is a bit early to tell.

No Error in Denying the Motions for Mistrial. The HSC rejected Kassebeer's claim that the motions for mistrial based on violations improper comments of the prosecution's witnesses. In addressing whether a new trial is warranted, courts consider (1) the nature of the misconduct; (2) the promptness of a curative instruction; and (3) the strengths and weaknesses of the evidence against the defendant. State v. Samuel, 74 Haw. 141, 148, 838 P.2d 1374, 1378 (1992). Here, the State's witnesses violated an order by the court not to discuss prior incidents of abuse. "The deliberate and unresponsive injection by the prosecution witnesses of irrelevant references to prior arrests, convictions, or imprisonment may generate insurmountable prejudice." State v. Loa, 83 Hawai'i 335, 353, 926 P.2d 1258, 1276 (1996). The State's witness may not hurl "evidentiary harpoons" at the defendant's case. Id. According to the HSC, these references of prior abuse, never arose to insurmountable prejudice. They were fleeting references and were not deliberate. Moreover, the circuit court gave prompt curative instructions soon after the improper comments. Short of insurmountable prejudice, any harm resulting to the defendant "can be cured by the court's instructions to the jury" based on the presumption that the jury will follow its instructions. Samuel, 74 Haw. at 149 n. 2, 838 P.2d at 1378 n. 2.

Tuesday, September 30, 2008

Notice Requisites not an Unconstitutional Impediment

State v. Pond (HSC September 29, 2008)

Background.
Pond was charged with abuse of family or household member (HRS § 709-906) and interference with reporting an emergency or crime (HRS § 710-1010.5). Just before trial, Pond asked for a continuance so that he could give reasonable notice to the State pursuant to HRE Rule 404(b). Pond wanted to present evidence that Russell "smacked" Pond about two weeks before the alleged abuse. Pond did not provide notice earlier because he did not have the actual time of the "smack" until the morning of trial. The circuit court denied the continuance and denied the admission of the evidence because the notice was not "reasonable."

At trial, Miae Russell testified that Pond, her boyfriend, came home drunk one night and attacked her. Russell testified that she tried to call the police for help, but Pond grabbed the phone and threw it against the wall. She admitted that she hit him back, but explained that it was in self defense. On cross-examination, Pond's counsel asked Russell if she smoked marijuana that night. The State objected. At a bench conference Pond explained that evidence of her marijuana use could be used to impeach her and undermine her credibility. The court, however, considered it a "prior bad act" for which there was no HRE Rule 404(b) notice. The question was stricken and the jury was instructed to disregard it.

Pond testified that when he came home after eating dinner with another woman he saw that half a bottle of vodka in their home. Pond kissed Russell, but she bit down on his lip. Pond bit on her lip so that she would release him. When she did, she was in a rage because she smelled perfume on him. She started punching him. Pond testified that the punches were fast and hard so he pushed her. She fell onto the bed. Russell grabbed the phone and they started arguing. He admitted to grabbing the phone, but did not know what became of it. Pond testified that he did not know who she was calling. Pond began to testify about being "smacked" about an incident a week before but the State objected and the circuit court sustained, struck the last question, and told the jury to disregard his answer. The jury found him guilty as charged. The ICA affirmed.

"Reasonable" Notice of HRE Rule 404(b) Evidence not Unconstitutional Under the "Legitimate Interest" test. In a criminal case, the proponent offering evidence of crimes, wrongs, or acts must provide "reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown of the date, location, and general nature of any such evidence it intends to introduce at trial." HRE Rule 404(b). This notice requirement, unlike the federal rules of evidence, applies to both the prosecution and the defendant. The HSC rejected Pond's that the notice requirement was an unconstitutional deprivation of his right to confront adverse witnesses under both the Sixth Amendment and Art. I, section 14 of the Hawai'i Constitution.

The HSC explained that the right to present "relevant testimony is not without limitation" and may "bow to accommodate other legitimate interests in the criminal trial process." Rock v. Arkansas, 483 U.S. 44, 55 (1987). Thus, the HSC evaluated "whether the interests served by [this evidentiary rule] justify the limitation imposed on the defendant's constitutional right to testify." Id. at 56. The HSC applied this "legitimate interest" test by examining the policeis underlying the evidentiary rule. See Michigan v. Lucas, 500 U.S. 145 (1991). The HSC examined the policy underlying the notice rule and agreed with the ICA that it is designed to reduce surprise and promote early resolution of cases. These policies, according to the HSC, were not unconstitutional infringements on the right to testify and confront witnesses.

Preclusion of Marijuana Smoking an Abuse of Discretion. Finding no constitutional infirmity, the HSC also held that the circuit court did not abuse its discretion in refusing to admit evidence of the "smack." The circuit court concluded--and both appellate courts agreed--that Pond failed to establish good cause for not giving reasonable notice sooner. The HSC opined that Pond "could have given the prosecution general notice prior to trial to eliminate undue surprise and allow the prosecution the opportunity to prepare for this matter." A "general notice" is perhaps better than no notice. Furthermore, the HSC may have articulated a third purpose for the notice requirement--the "opportunity to prepare."

Cross-Examination about the Sensory Perception Required. The majority and the dissenting Justices agreed that the circuit court erred in refusing to allow Pond to cross-examine Russell about her marijuana use that night. A defendant may cross-examine the witness about his or her "drug use and addiction at or near the time of the incident to the extent that it affected [his or] her perception or recollection of the alleged event." State v. Sabog, 108 Hawai'i 102, 111, 117 P.3d 834, 843 (App. 2005). This is well within the scope of cross-examination as a form of impeachment. See Davis v. Alaska, 415 U.S. 308, 316. Evidence that Russell was smoking marijuana on the night of the alleged abuse was proffered to show that her perception was compromised and she was not credible. Evidence impeaching "a witness' sensory or mental defect does not fall under the purview of HRE Rule 404(b)" and thus did not require Pond to give "reasonable notice."

Nor was this preclusion harmless beyond a reasonable doubt. Had Pond questioned Russell about her marijuana use that night, the jury would have been able to evaluate her perception and judge her credibility. In convicting Pond as charged, the jury found Russell credible over Pond. This all indicated that there was a "reasonable possibility that the errors . . . contributed to Pond's conviction."

The Self-Defense Instruction not Defective. Use of force for self-protection is a defense and "a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used without retreating, surrendering, possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action." HRS § 703-304(3). A jury "must consider the circumstances as the Defendant subjectively believed them to be at the time he tried to defend himself." State v. Pemberton, 71 Haw. 466, 477, 796 P.2d 80, 85 (1990). Pond's jury was instructed that a person "employing protective force may estimate the necessity thereof under the circumstances as he reasonably believes them to be when the force is used without retreating." Pond argued that the instruction failed to inform the jury that the reasonableness of his belief must be viewed from his perspective. The HSC disagreed and held that the instruction "sufficiently track[ed]" the language in HRS § 703-304(3).

A Clarification on Elements. The HSC clarified the elements of interference with an emergency call. There are three kinds of elements to an offense: (1) the conduct; (2) attendant circumstances; and (3) the results of the conduct. HRS §§ 702-204; 702-205. An "attendant circumstance" is defined as those circumstances that are neither the conduct nor the results thereof. State v. Aiwohi, 109 Hawai'i 115, 127, 123 P.3d 1210, 1222 (2005). A person is guilty of interference with an emergency call if he or she intentionally or knowingly "prevents a victim or witness to a criminal act from calling" 911 or an emergency telephone system. HRS § 710-1010.5. The HSC clarified that in that offense, the conduct would be an act and the result of that act would be the prevention of making the call. Thus, there are two attendant circumstance would be that the caller was a victim of or witness to a crime and that the call was to an emergency telephone system.

Justice Acoba's Dissent and Concurrence--HRE Rule 404(b) Notice and the Hawai'i Constitution. Justice Acoba concurred with the majority when it came to vacating and remanding on the circuit court's preclusion of the marijuana smoking. However, Justice Acoba believed that the HRE Rule 404(b) notice requirement cannot be applied with equal force to both the defendant and the State. The federal rules of evidence require only the prosecution to provide reasonable notice to the defendant of FRE 404(b) evidence. This distinction, wrote Justice Acoba, warranted different treatment when the defendant is required to provide notice to the prosecution. Neither the ICA nor the majority adequately balanced the policies underlying the notice rule with the defendant's constitutional right to present evidence at trial.

Justice Acoba turned to State v. Peseti, 101 Hawai'i 172, 65 P.3d 119 (2003), in which the HSC balanced the exclusion of evidence against the defendant's right to present that evidence as provided by the Hawai'i Constitution. According to Justice Acoba, the defendant's right under the Hawai'i Constitution trumps an evidentiary exclusion "when the defendant demonstrates that (1) there is a legitimate need to disclose the protected information; (2) the information is relevant and material to the issue before the court; and (3) the party seeking to pierce the privilege shows by a preponderance of the evidence that no less intrusive source for that information exists." Id. at 182, 65 P.3d at 129 (quoting State v. L.J.P., 270 N.J. Super 429, 637 A.2d 532, 537 1994)). Justice Acoba found this case analogous to Peseti and would have applied the three-part test.

Peseti Distinguished by Majority. The HSC did, however, distinguish Peseti. According to the HSC, Peseti concerned the tension between a defendant's right to confront witnesses and present evidence at trial and a statutory privilege excluding the evidence. The test laid out in Peseti, explained the HSC, is limited only to the statutory privileges. This case, however, addressed the tension between evidentiary notice requirements and the defendant's rights to present evidence at trial. Unlike privileged communications, the notice requirement is not an absolute bar of evidence. It only restricts the use of evidence when it is not in compliance with the notice procedure. Moreover, the HSC stated that "to hold that the Peseti rule applies to the admission of defendants' HRE Rule 404(b) evidence, on the basis of protecting defendants' constitutional rights, would effectively rewrite HRE Rule 404(b) and render the notice requirement per se unconstitutional." Justice Acoba, however, was unconvinced. "The majority's desire to ignore the Peseti precedent cannot be justified because the majority may be unhappy with the result this court's own precedent demands. Whether correct or not, the majority's view that HRE Rule 404(b) evidence 'would always satisfy the Peseti test' is not a basis for rejecting it in any specific case."

Acoba: the Continuance of Trial. Justice Acoba also believed that the circuit court erred in denying the continuance. The circuit court did not consider Pond's constitutional rights to present evidence and effectively cross-examine adverse witnesses. At the very least, the circuit court should have inquired into the feasibility to cure any perceived prejudice suffered by the State. See State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987); State v. Dowsett, 10 Haw. App. 491, 878 P.2d 739 (1994).

Acoba: the Self-Defense Instruction. Justice Acoba also took issue with the self-protection instruction. According to Justice Acoba, an instruction on use of force for self-defense is measured from the viewpoint of a person "in the defendant's position." State v. Pemberton, 71 Haw. at 477, 796 P.2d at 85; State v. Estrada, 69 Haw. at 224-25, 738 P.2d at 826. See also State v. Augustin, 101 Hawai'i 127, 63 P.3d 1097 (2002). This is not the same as viewing the circumstances "as the defendant reasonably believe[d] them to be." The difference is one between the legally correct subjective standard from the erroneous objective one. Thus, that too was error for Justice Acoba.

Justice Duffy's Dissent and Concurrence. Justice Duffy concurred with the majority on everything but one point: the jury instruction on self-defense. Justice Duffy wrote that "the jury instruction given was improper and prejudicial for the reasons stated by Justice Acoba[.]"

Thursday, September 18, 2008

ICA Demands Post-Trial (and Perhaps Post-Conviction) Examination of DNA in "Unusual Circumstances"

State v. Pavich (ICA September 16, 2008)

Background. Dr. Bird was found dead in his Kihei, Maui apartment. Blood was smeared on the walls, soaked on a pillow near his head, and on a bunch of napkins. The cause of death was "manual strangulation." Pavich was Avilla in her Kihei apartment along with Estencion, Granados, and Abraham. Pavich was charged with burglary in the first degree, kidnapping, robbery in the first degree, murder in the second degree, and was separately charged with possession of methamphetamine and possession with the intent to use drug paraphernalia. All seven counts were tried together. The State sent to a private laboratory, Genetic Technologies, the bloody napkins for a DNA analysis. Pavich's hired another laboratory for an independent DNA analysis with Forensic Science. Genetic Technologies reported that the blood on the napkins could belong to Bird, Pavich, or Avilla. During jury selection, the State sent Pavich a supplemental report which concluded that Pavich "could not be excluded as a major contributor to" the blood on the napkins.

According to the testimonies of Avilla, Estencion, and Granados, and Abaraham, Pavich wanted to rob Bird's apartment that night because Bird called the police on their drug use in the past. Avilla drove Pavich to Bird's and waited in the parking lot. When she heard a scuffle, she ran inside and saw Bird and Pavich struggling on the floor. Pavich was hitting Bird several times with a lamp. Avilla gave him a blender cup and he hit him with that too. It appeared to Avilla that Pavich was choking Bird. When they came back to Avilla's apartment, they were hysterical. Pavich told Estencion that Bird bit him and had teeth marks on his hand. Two weeks after the incident, Pavich was spotted by the police carrying a black bag. He dropped the bag and fled. Pavich later turned himself in. The bag had drug paraphernalia in it.

The State also called a lab technician from Genetic Technologies to testify about the results of the supplemental report. The technician testified that Pavich could not be excluded as a "major contributor" to the body fluids found on the napkins and that Pavich's DNA profile occurs in approximately 1 in 66 million Caucasians, 1 in 1 billion African-Americans, and one in 160 million in the Hispanic population. After that, Pavich moved for a mistrial or, in the alternative, to strike the testimony about the findings in the supplemental report. The circuit court struck the State's testimony about the probability, but did not strike the testimony on the matched profile. The circuit court denied the motion, but allowed a one-week continuance so that Pavich's DNA expert at Forensic Science could perform a "peer review" of the supplemental report. When Forensic Science refused, and said it would take two months to complete, the circuit court refused a further continuance. Pavich was found guilty of murder, kidnapping, robbery, burglary, and possession of paraphernalia. He moved for a new trial and sought approval of funds for another DNA expert to perform the peer review. The motion was denied.

No Errors at Trial Mainly Because Pavich Failed to Object. The ICA found no error in admitting the DNA evidence and related testimony at trial. The ICA explained that it did not move to exclude the testimony and findings in a motion in limine and Pavich did not object to the testimony during trial. There being no objection, the ICA refused to find error. As for the refusal to continuance in order to find an expeditious expert, the ICA held that the circuit court did not abuse its discretion. State v. Lee, 9 Haw. App. 600, 603, 856 P.2d 1279, 1281 (1993) ("motion for continuance is addressed to the sound discretion of the trial court."). The ICA explained that there was no assurance a peer review could be completed within a reasonable time and a lengthy continuance might have detrimentally effect the jury. Nor did the ICA find error in the refusal to strike all of the technician's testimony. According to the ICA, Pavich did not object to the testimony before it was admitted. There was no objection at the time and there was no motion in limine. Moreover, Pavich had sufficient notice of the testimony because the supplemental report was disclosed months before trial. Thus, the ICA concluded that "any disadvantage created by the admission of [the testimony] was the product of Pavich's own inaction."

But Unusual Circumstances Arose to Error at Post-Trial. The ICA, however, held that the circuit court should have granted Pavich's request funds for a post-trial peer review. Aside from the DNA evidence, the State had nothing other than the testimonies of Pavich's roommates. The DNA evidence itself failed to "establish that Pavich's DNA was, in fact, found in the napkin stains." These circumstances, "where a combination of factors resulted in the major-contributor and probability testimony being presented to the jury without the defense having conducted a peer review[,]" were "unusual." According to the ICA, the post-trial peer review is necessary to rebut the testimony from Genetic Technologies. Without the peer review, it is impossible to determine whether "the jury's exposure to this testimony deprived [Pavich] of a fair trial."

Try now, ask Later? The ICA did not expressly fashion a bright-line rule for post-trial DNA tests but it did leave clues for guidance. These circumstances were "unusual" because the evidence presented to the jury was not definitive as to whether the DNA matched Pavich. Moreover, this evidence was not subject to a peer review and it was simply impossible to determine if the evidence deprived Pavich of a fair trial. The ICA has created an unusual situation here. The circuit court did not abuse its discretion in refusing a continuance, but it erred in refusing to allow funds for a post-conviction DNA. This suggests that a trial may proceed with DNA evidence that was not subjected to a peer review and, once a guilty verdict comes down, the defendant may be allowed to examine that DNA evidence used against him or her. Is this a case of try now, ask later?

Probably not. Pavich failed to file a motion in limine and he did not object to the evidence at the time of trial. Thus, the testimonial evidence was properly admitted. The ICA remanded Pavich's case to allow a post-trial peer review. And if the review is consistent with Genetic Technology's testimony, then the failure to conduct the peer review did not affect outcome after all, and a new trial would be unwarranted. Whatever the result, if the circuit court denies Pavich's motion for a new trial, he would be able to appeal that. Had Pavich objected to the admissibility of the evidence before or during trial, he would have been in a better position to argue for a new trial on appeal.

So What's the test? The ICA did not expressly fashion a bright-line rule for post-trial DNA tests. But it did leave clues for guidance in turning to case law outside the jurisdiction. Specifically, "a defendant is entitled to post-trial DNA testing" when the State's "proof's are weak, when the record supports at least a reasonable doubt of guilt, and when there exists a way to establish guilt or innocence once and for all." State v. Thomas, 586 A.2d 250, 254, (N.J. Super. Ct. App. Div. 1991); Commonwealth v. Brison, 618 A.2d 420, 425 (Pa. Super. Ct. 1992). The ICA appeared to have applied this standard by explaining that the State's evidence against Pavich "was not especially strong" and that the technician's testimony may have influenced the jury. The last condition from Thomas--a way to establish guilt or innocence once and for all--was not fully explored (it's unclear what that even means). Whether this last factor, or the Thomas standard at all, is crucial for later post-trial DNA questions remains to be seen.

The Footnote: Post-Trial v. Post-Conviction DNA Testing. In footnote 11, the ICA pointed out that HRS §§ 844D-121 to -133 sets out a procedure for post-conviction DNA testing. Those procedures allow a defendant who has been convicted and sentenced to move for DNA analysis of the evidence used against him or her at trial. HRS §§ 844-121 and -123. The statutes here did not apply because the motion for and denial of funds for DNA testing occurred before he was sentenced. Because neither party even mentioned these statutes, the ICA did not address them in deciding the case. And so another question emerges: whether the analysis in this case is limited to cases where a request for DNA funds or DNA testing is brought and decided after trial, but before sentencing.

The Motion to Sever. The ICA rejected Pavich's contention that the circuit court erred in failing to sever the incident with Bird from the drug charges. The ICA first pointed out that because Pavich failed to renew the motion to sever at the close of the State's case or at the close all of the evidence, the claim is waived. State v. Balanza, 93 Hawai'i 279, 288, 1 P.3d 281, 290 (2000). Nevertheless, the ICA considered the merits and still rejected Pavich's claim. Charges are properly joined when they are "based on the same conduct or on a series of acts connected together or constituting parts of a single plan." HRPP Rule 8(a). The circuit court may sever charges if it appears that joinder prejudices the defendant. HRPP Rule 14. In deciding whether severance is appropriate, the court must "weigh the possible prejudice to the defendant against the public interest in judicial economy." State v. Balanza, 93 Hawai'i at 289, 1 P.3d at 289. The ICA first concluded that the drug charges were properly joined because they were based on a series of acts connected together. According to the ICA, Pavich's motive to rob Bird, explained the ICA, was to get money for drugs. The ICA then concluded that Pavich was not prejudiced in trying the charges together. The ICA explained that even if they had been severed, the evidence of the drug possession would have been admissible in the case relating to Bird. There was also ample evidence of drug use among Pavich and his roommates. According to the ICA, there was no prejudice.

Non-Disclosure of Avilla's Plea Bargain. The ICA found no merit in Pavich's claim that the State should have disclosed certain parts of Avilla's plea agreement. The ICA agreed with the circuit court that nothing exculpatory or potentially exculpatory was withheld from Pavich.

No Instruction on EMED Necessary. The ICA also held that there was no error in refusing to instruct the jury on the defense of extreme mental or emotional disturbance. First and second degree murder is reduced to manslaughter when, "at the time [the defendant] caused the death of the other person," (1) the defendant was under the influence of an extreme mental or emotional disturbance (2) for which there is a reasonable explanation. HRS § 707-702(2). Pavich argued that the instruction should have been read because there was sufficient evidence showing that he was panicked and stressed after the death. The ICA rejected this argument. The EMED defense focuses on the defendant's state of mind "at the time" the crime was committed. State v. Moore, 82 Hawai'i 202, 210, 921 P.2d 122, 130 (1996). Evidence that Pavich was in a panic when he returned from Bird's apartment does not support the EMED defense. Nor would evidence that Pavich was highly agitated after Bird bit him. "[I]t is implicit that [EMED] will not reduce murder to manslaughter, if the actor has intentionally, knowingly, recklessly, or negligently brought about his own mental disturbance, such as involving himself in a crime." State v. Dumlao, 6 Haw. App. 173, 182 n. 13, 715 P.2d 822, 829 n. 13 (1986), overruled on other grounds in State v. Seguritan, 70 Haw. 173, 766 P.2d 128 (1998). The ICA also concluded that even if there had been sufficient evidence supporting the EMED defense, the failure to instruct the jury was harmless beyond a reasonable doubt.