Thursday, January 24, 2008

HSC rules that its Rule is Plain and Unambiguous.

Kamaka v. Goodsill, Anderson, Quinn & Stifel (HSC Jan. 24, 2008)

Background. Kamaka was an attorney at Goodsill, a law firm in HNL, focusing on employment law. The firm suspected Kamaka's honesty when it discovered that she had not completed the work she claimed to have finished. Soon afterwards, another attorney at the firm believed that she had regularly made entries on billing time sheets for incomplete work, and recommended termination. Kamaka's annual report was not favorable so the firm put her on probation pending further investigation. The firm also informed Kamaka that if investigation showed that "continued deficiencies" between the billing and actual work done, she would be fired. Kamaka was eventually terminated, and the firm referred her to the Office of Disciplinary Counsel. The ODC dismissed the claim based on insufficient evidence.

Kamaka sued Goodsill alleging several counts. Kamaka lost every claim one except for a jury awarding her for breach of contract. The trial court, however, granted Goodsill's renewed motion for judgment as a matter of law. Goodsill then requested $364,154.25 in attorney's fees and $65,081.48 in costs and was awarded in full.

RSCH Rule 2.8 bars all Lawsuits--Including this one. Kamaka argued that she was entitled to pursue a claim of malicious prosecution based on Goodsill's referral to the ODC. Rules Supreme Court of Hawai'i (RSCH) Rule 2.8, however, states that those who "complain" to the ODC or give testimony "with respect thereto . . . shall be absolutely privileged and no lawsuit thereon may be instituted." The HSC rejected Kamaka's argument that this privilege did not extend to claims of malicious prosecution. The plain language of the rule, according to the HSC, bars lawsuits stemming from ODC complaints. This includes malicious prosecution claims.

Rule 2.8 bars Evidence too. RSCH Rule 2.8 bars complaints and testimony. A "complaint" for Rule 2.8 purposes is "any communication to the disciplinary counsel alleging attorney misconduct[]" and "testimony" as statements made under oath. That said, the HSC examined whether the circuit court properly excluded the firm's letters to the the ODC made after the initial complaint. Although the letters constituted neither a "complaint" nor "testimony," the circuit court exercised adequate HRE Rule 403 balancing to exclude w/o abusing discretion.

A "Unique Position." The malicious prosecution argument, noted the HSC, put the court in "the unique position of interpreting its own rule." Can the HSC do that? In addition to being the highest arbiter of state law, the HSC has a limited rulemaking power pursuant to Haw. Const. Art. VI, Section 7. The HSC held that the language was plain and unambiguous. Thus, there was no need to examine the intent of, well, the HSC when it promulgated the rule. In theory, this suggests that if it were ambiguous, the HSC could think aloud and examine its own intent at the time the rule was promulgated. That is unique.

Interpretation is one thing, but constitutionality may be quite another. If the HSC can interpret its own rules, then can it determine whether its own rules are constitutional? Similarly, can it examine whether the rule was made w/in the HSC's constitutional authority? This gets to the very heart of the problem. The HSC's power to interpret with authority runs into its rulemaking power. Should the justices who promulgated the rule recuse themselves? Perhaps not. Everyone agrees that the HSC has the power to overrule its own cases. The HSC's conclusion that a rule it promulgated turned out to be unconstitutional is arguably the same thing as overruling past precedent.

Genuine Issues of MATERIAL fact. Kamaka "argued" on appeal that there were genuine issues of material fact that should've prevented the circuit court from granting summary judgment for the tortuous interference of contractual relations claim. The HSC carefully notes that raising "genuine issues of fact" without explaining how these facts are "material to the elements of the claim" is not argument and was therefore waived pursuant to HRAP Rule 28(b)(7).

Editor's Note: Other Issues Examined. There were plenty of issues in this case. The HSC also examined quite extensively the denial of Kamaka's motions to amend the complaint around the time of trial, the many (but not inconsistent) duties of employer-attorneys, the scope of a renewed judgment as a matter of law, the exacting language needed to alter the common law rule that all employees are at-will, and requests for attorney's fees pursuant to HRS § 607-14. Kamaka prevailed on none of them. This makes a walloping 72-page opinion.

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