Friday, February 29, 2008

Reviewing a Motion for Reconsideration: new Application to an old Standard?

Home Owners of Kai Nui Court v. City and County of HNL (ICA February 28, 2008)

Background. The City's garbage truck somehow hit the gate at the Kai Nui Court. Kai Nui sued for damages in the district court and went to trial. After Kai Nui presented its case, the City orally moved for dismissal. The district court granted it and concluded that Kai Nui failed to make a prima facie showing of damages thereby rejecting Kai Nui's argument that paying a bill presumes that incurred expenses were reasonable and necessary. Kai Nui filed a motion for reconsideration in which it cited authorities from this and other jurisdictions for the proposition that a plaintiff's payment of special damages is prima facie evidence of the amount and reasonableness of the claimed damages. The City argued, inter alia, that Kai Nui did not provide new evidence or argument that could not have been presented at trial. After a hearing, the district court granted Kai Nui's motion for recon., reopened the case, and Kai Nui prevailed at trial. The City appealed.

Evidence of Damages might be Presumed from Payments of Repairs by Plaintiff. The issue for reconsideration was whether evidence of payment by Kai Nui created a rebuttable presumption of the amount and reasonableness of damages. The ICA noted that there was no controlling case in Hawai'i and that the persuasive authorities from other jurisdictions were just that--persuasive. The ICA did not exactly adopt Kai Nui's proposition of this presumption. At best, it merely noted that it could be one of the many measures of damages to personal property and that the ultimate goal in assessing the evidence of damages is fully compensating the injured party. Richards v. Kailua Auto Machine Service, 10 Haw. App. 613, 623, 880 P.2d 1233, 1238-39 (1994). Thus, considering the payment as a presumption is not an abuse of discretion here. The main concerns of the ICA here were procedural ones: whether it was error to grant the motion for recon.

How new does it have to be? According to the ICA, the trial judge is free to correct itself when a party, in a motion for reconsideration, asserts error of a previous ruling. "If a court determines that it made a mistake in an oral ruling, upon review of persuasive legal authorities, it is not an abuse of discretion [which is the standard of review on appeal from a motion for recon.]." In a footnote, the ICA stresses that its holding does not "expand or otherwise modify the purpose of . . . a motion for reconsideration." The purpose of a motion for recon. is to present new evidence or advance new arguments, and not relitigate old matters. Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 27 (1992). The ICA, however, stated that these purposes are not designed to "inflexibly bind the hands of a judge who determines that he or she has made an error."

The issue could have been one on appeal, but instead the trial court was given the opportunity to correct itself, and it did. It seems like the district court here used the motion for reconsideration as a way to act as its own appellate court and reexamine the issue, and the ICA deferred to its discretion in doing so. Should the trial court get this 2d chance? There seems to be no harm in it since the same issue was preserved and went up to the appeals court anyways. The lower court, arguably, attempted to save the parties a lot of trouble and time in settling the matter in the district court. Then again, the ICA carefully noted that it did not expand or modify the purposes of a motion for recon.--present new evidence and advance new arguments. Thus, the arguments that the trial court exercised its discretion to hear were new ones, and the question of whether this is a "new argument" has been technically and implicitly been answered in the affirmative. What constitutes a "new argument" isn't fleshed out.

Editor's Note. As Howie Rose, the voice of New York Mets on WFAN, says, "put it in the books." This is the first published opinion authored by Judge Katherine G. Leonard. It's crisp, brief, and sharp.

Sunday, February 24, 2008

Strictly speaking, there's more than one way to bribe a witness.

State v. Gomes (HSC February 20, 2008)

Background. A woman, Zook, saw a fight take place in front of her home one night. Zook told her friend, Schulte, about the fight and how she was going to be called as a witness at a trial. Schulte learned that Nolta, her boyfriend at the time, knew the people in the fight, which included Gomes. One night at a lounge, Gomes told Schulte to tell Zook not to "show up and testify." Nolta later testified that Gomes asked him whether Schulte would urge Zook not to testify and that if Zook would accept money for it. The message eventually got to Zook. In the meantime, Gomes and his co-defendant were charged with assault in the 2d degree. After Gomes' "entreaty," Zook was served with a subpoena to testify at trial. There was no evidence of a prior subpoena. Gomes' motions for acquittal on the grounds that there was insufficient evidence to find him guilty of HRS § 710-1070(1)(b) was denied. Gomes was convicted of bribery of a witness (HRS § 710-1070(1)(b)) in addition to assault.

The three ways to bribe a Witness, the State Picked one. HRS § 710-1070(1) recognizes three different ways to bribe a witness: confer a benefit to a putative witness with the intent to (a) influence the person's testimony; (b) "induce that person to avoid legal process summoning him to testify;" or (c) induce the person to absent him or herself from an official proceeding. Gomes was accused of violating (1)(b)--conferring a benefit to Zook with the intention to induce her to avoid legal process summoning him. Legal process means subpoena.

Reading the many definitions that apply to this statute, see HRS §§ 710-1000(2), (12), & (17), the HSC concluded that the State was required to prove beyond a reasonable doubt that Gomes (1) conferred, offered, or agreed to confer a benefit to Zook or someone Zook cared about; (2) that Gomes believed Zook would be called to testify under oath in a legal proceeding; and (3) Gomes acted with the intent to induce Zook to avoid the "delivery of a writ or summons calling her to appear or respond in court." Rather, there was intent to show that he had the intent to induce Zook's absence from trial, which is HRS § 710-1070(1)(c).

Even Without the Smoking gun, infer away. The HSC rejected Gomes' assertion that the State was required to introduce explicit statements by Gomes that he told Zook to avoid the service of the subpoena. After all, it is well-established that direct evidence of a person's intent is rarely available and seldom found. State v. Pudiquet, 82 Hawai‘i 419, 425, 922 P.2d 1032, 1038 (App. 1996). Thus, circumstantial evidence and reasonable inferences arising from a defendant's conduct are sufficient. State v. Bui, 104 Hawai‘i 462, 467, 92 P.3d 471, 476 (2004). Thus, explicit statements are not required. The intent of Gomes' may be readily inferred from his conduct.

When the facts don’t fit, Acquit. The HSC held that evidence of Gomes' urging of Zook "not show up" or "not show up and testify" cannot allow a factfinder to infer that Gomes intended to have her avoid the subpoena. Such inferences are "untenable in light of the structure of HRS § 710-1070." The HSC concluded that the language of subsection (1)(b) is plain and unambiguous and, thus, it is obligated to give effect to its "plain and obvious meaning." Mikelson v. United Servs. Auto. Ass'n, 108 H. 358, 360, 120 P.3d 257, 259 (2005). Here, there was no evidence of a subpoena ordered for Zook admitted into evidence, discussed in testimonies of the witnesses, or the legal proceeding for which Zook was ordered to appear. The bare assertions that Zook was told "not to come back" or "not to show up and testify" do not determine whether Zook was urged to avoid being served the subpoena. This, concluded the HSC, was insufficient evidence to convict under HRS § 710-1070(1)(b).

A Measured Interpretation. The HSC observed that HRS § 710-1070(1)(b) must not be read so broadly that it would encompass other types of bribery, like inducing a person to absent himself or herself from an official proceeding under subsection (1)(c). Reading the statute this way, concluded the HSC, would render subsection (1)(c) a nullity. City and County of HNL v. Hsiung, 109 Hawai‘i 159, 173, 124 P.3d 434, 448 (2005). Does this mean that prosecutors should be hesitant to allege violations of subsection (1)(b) without facts allowing a jury to infer that the defendant had the intent to avoid the service of the subpoena rather than avoid testifying? Because there are these two different ways to bribe a witness, the legislature must have intended that subsection (1)(b) violations pertain to the avoiding of a service of process and not the effect of avoiding that service, which would be testifying at trial and is within the province of subsection (1)(c). Given this construction, shouldn’t it behoove the prosecutor to allege a violation of both subsections in the absence of clear facts? Perhaps amend the complaint when the facts are clearer. This, fortunately for Gomes, did not happen here.

Justice Nakayama's Dissent. Justice Nakayama did not dispute the plain language interpretation, but she reminded the majority that when a strict reading of a statute results in an “absurd or unjust result and such literal application is clearly inconsistent with the purposes and policies of the statute,” the court must depart from the plain and unambiguous language. State v. Park, 55 Haw. 610, 614, 525 P.2d 586, 589-90 (1974). Justice Nakayama thought this canon of construction applied here. Justice Nakayama turned to the commentary of HRS § 710-1070, which states, among other things, that “substantial interference with any part of the process [of calling a witness] is to be condemned.” Moreover, the standard of review on appeal is viewed in light most favorable to the prosecution. State v. Keawe, 107 Hawai‘i 4, 108 P.3d 304, 307 (2005). Justice Nakayama believed that the evidence would allow the jury to find a violation of subsection (1)(b), and thus, would have affirmed the conviction.

Plain Language/Strict Interpretation Approach reigns Supreme. Both the majority and Justice Nakayama uphold the principle that the first step in interpreting a statute is a strict interpretation of the plain language. They part ways from there. Justice Nakayama believed that the language, though plain, lead to a result inconsistent with the legislative purpose. The majority, however, concluded that the statute was plain and the effect was not absurd. In fact, its interpretation prevented one part of the statute from being a nullity. In any event, the importance of a strict interpretation and the adherence to the plain meaning absent an exception like an ambiguity or an absurd result remain unquestioned. This puts the legislative history and other extrinsic aids in interpreting law in the backseat. See also State v. Klie (HSC Dec. 27, 2007).

Tuesday, February 12, 2008

A Standard for Permanent Injunctions (oh, and the State can't Alienate Ceded Lands yet).

(HSC January 31, 2008)

Editor’s Note.
Everything about this case is big. The litigation took years, the parties include State agencies, public figures, and an entire people. It even gives us a much-needed standard for permanent injunctions. Naturally, the opinion itself is big (97 pages long). I cannot possibly thoroughly examine the issues here without spending too much time and webspace on a single case. I’ve read through it and presented what I think are the most interesting issues and I do not represent this summary as a complete report of the OHA v. HCDCH.

Background. The Housing and Community Development Corporation of Hawai‘i (HDCDH) and the State attempted to transfer various lands on Maui and the Big Island for the purpose of building residential housing. In 1995 a slew of plaintiffs—OHA and a group of individuals—sought to enjoin the State from alienating the lands because the lands were ceded lands part of the public lands trust and could not be disposed of until claims by native Hawaiians had been settled in the political process. In the alternative, the plaintiffs sought declaratory relief that the State could not authorize the alienation of these lands because it would limit the claims of native Hawaiians to the ceded lands. The circuit court ruled for the State.

The Apology Resolution and Similar Pronouncements are “laws.” The HSC focused primarily on a joint resolution by Congress. This Apology Resolution acknowledged that native Hawaiians did not consent to the taking of their lands by the US government the 19th century. Pub. Law No. 103-150. The plaintiffs argued that the Apology Resolution essentially clouded the title of the ceded lands and thus the State cannot easily transfer or transfer the at all to a third party until the claims of native Hawaiians have been settled. The HSC treated the Apology Resolution as a statute subject to the same canons of statutory construction because it has emerged from legislative deliberations and proceedings just like other statutes. Ann Arbor R. Co. v. United States, 281 U.S. 658, 666 (1930). Turning to its plain language, the HSC concluded that the Apology Resolution does not require the turning over of the ceded lands to native Hawaiians, but rather recognizes that the native Hawaiians have unrelinquished claims to the ceded lands. There is no conveyance of the lands taking place in the Apology Resolution. The HSC also noted that this construction is supported by reports by the US Departments of Interior and Justice as well as similar resolutions passed by the Legislature in HNL.

The HSC then pointed out that the State’s constitutionally-imposed fiduciary duty to manage the ceded lands is analogous to the federal government’s fiduciary duty to Indians, Ahuna v. Dept. of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982), and thus, the State is saddled with a strong duty. The HSC held that the Apology Resolution and related state legislation “give rise to the State’s fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians have been resolved. Such duty is consistent with the State’s obligation to use reasonable skill and care in managing public lands trust and the Ahuna court’s declaration that the State’s conduct should be judged by the most exacting fiduciary standards.”

Congress has a Plenary Power over Indigenous People. The HSC treated the joint resolution of Congress as a statute and interpreted its plain language as federal recognition of the unrelinquished claims of native Hawaiians. The HSC was also careful to point out that while the Apology Resolution did not call for the conveyance of the ceded lands to native Hawaiians, it did not suggest that Congress lacked the power to do so. A fundamental tenent of federal Indian law is Congress’ plenary power over tribal sovereignty. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This includes the power to recognize a people as an Indian tribe. There is no mention in this opinion about this, but the HSC’s interpretation of the Apology Resolution suggests that federal recognition or, as articulated in a different section of the opinion, creation of native Hawaiian claims to the ceded lands might be pursuant to this plenary power. Unfortunately, that is a matter of federal law and the only court higher is in Washington, D.C.

A Terrible and Nagging Question. Looming behind all of this is Rice v. Cayetano, 528 U.S. 495 (2000), where the US Supreme Court struck down the State’s ability to limit voting for OHA trustees to native Hawaiians. The US Supreme Court noted that if the voting restrictions were upheld, it would be required to accept premises “not yet established in our case law” such as the premise that Congress, in various pronouncements like the Apology Resolution, “determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status.” The court dodged this, “assume[d] the validity of the underlying administrative structure and trusts [of the State], without intimating any opinion on that point[,]” and struck down the voting requirements on 15th Amendment grounds.

Thus, it did not squarely address the nagging question of whether the State of Hawai‘i has a power over its indigenous people or if it was delegated such a power from Congress (even when Congress, as seen from the Akaka Bill, refuses to boldly exercise its plenary power and recognize native Hawaiians in one breath, but recognizes these outstanding claims in another). The US Supreme Court never vigorously examined the Apology Resolution, but the HSC has here. Given the clear language of the Apology Resolution, perhaps the Cayetano dicta is misplaced. Only time will tell.

At Long Last! A Standard for Permanent Injunctions! Stepping aside from these heady matters, the HSC addressed a very practical issue in civil litigation. For some time now, our jurisdiction has only had a clear standard for temporary injunctions. Life of the Land v. Ariyoshi, 59 Haw. 156, 158, 577 P.2d 1116, 1118 (1978). The HSC adopted the reasoning of the circuit court and articulated the following standard for imposing a permanent injunction: (1) whether the plaintiff has prevailed on the merits (rather than a likelihood of success for temporary injunctions); (2) whether the balance of irreparable damage favors the issuance of the injunction; and (3) whether the public interest supports granting an injunction.

Having held that federal resolutions and related state legislation triggered the State’s fiduciary duty to preserve the ceded lands, the HSC held that a permanent injunction against the State was warranted. Again, the HSC turns to the Apology Resolution, which plainly states that the native Hawaiian people have these claims over the ceded lands, which were taken without “consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations.” Without the injunction, concluded the HSC, the lands could be alienated without having satisfied the claims of the native Hawaiian people. Additionally, the state Legislature has recognized that the reconciliation will someday occur. Until then, the State, ironically, must be enjoined from thwarting these efforts.

Wednesday, February 6, 2008

Res Gestae: the die-hard doctrine.

State v. Fetelee (HSC January 31, 2008)

Background. At Fetelee's trial, Angela Lopez was in her friend's apartment one night with her friends when Fetelee barged in after demanding drugs, attacked one of her friends, and chased off another. Around ten minutes later Fetelee, appearing "calm," returned and apologized. Shortly after that, Fetelee asked a woman in a gas station parking lot a cigarette and money. When she pulled out her cigarettes, a $10-bill came out from her purse. Fetelee grabbed the bill, and the woman did not ask for it back. Just then, two Micronesian men, Michael Hartman and Kenter Alik, walked by. According to their testimony, Fetelee provoked them and hit Hartman several times in the face. Alik fought with Fetelee for a while, but Fetelee ran off toward the apartments. Alik started assisting Hartman when Fetelee returned with a knife. Fetelee stabbed Alik in his stomach and his side as he tried to run and after he fell, Fetelee stabbed him behind the ear. Alik was unconscious for about a month. No charges against Fetelee stemmed from the incident with Lopez.

In his motion in limine before trial and at trial, Fetelee objected to any evidence relating to Lopez and the incident in the apartment on the grounds that it was an inadmissible "bad act" under HRE 404(b). The trial court denied the motion and overruled any objections because the incident at the apartment happened quickly before incidents at the gas station and was thus "the res gestae of the alleged offenses." A jury convicted him of attempted murder in the 2d degree (HRS §§ 705-500, 707-701.5, and 706-656); attempted assault in the 2d (HRS §§ 705-500, 705-711(1)(a)); and theft in the 4th (HRS § 708-833). He was sentenced to life.

Res Gestae, meet HRE, the "Singular and Primary source." Before 1981, res gestae was considered evidence that was so causally linked to the "litigated act," that little time elapses. Territory v. Lewis, 39 Haw. 635, 639 (1953). Res gestae was used primarily to admit evidence that would normally be inadmissible hearsay. The Hawai'i Rules of Evidence (HRE) became effective in 1981 without any mention of the words "res gestae." The purpose of the HRE was to (1) codify the law of evidence; (2) promote informed evidentiary rulings; and (3) bring uniform treatment of evidence across the State. HRE Rule 100 cmt. The legislative history of the evidence rules suggest that the HRE was the singular and primary source of all evidentiary rulings. Such intent, according to the HSC, shows that the HRE supersedes the common-law res gestae doctrine. Thus, the res gestae doctrine is "no longer a legitimate independent ground for admissibility of evidence in Hawai'i[.]"

Not quite gone. Then again, as the HSC explained, the HRE has codified certain aspects of the res gestae doctrine--the excited utterance, present-sense impression, and the then-existing mental, emotional, or physical condition exceptions to the hearsay rule--but certainly not every aspect. So the doctrine is not quite extinguished. That said, the HSC urges the "retirement" of the words "res gestae" from the language of the law of evidence. Supporting this holding is the basic notion that a statute is not intended to repeal the common law or a prior statute unless it clearly appears that the legislation covers the entire subject. Kienker v. Bauer, 110 Hawai'i 97, 109, 129 P.3d 1125, 1127 (2006). The legislature intended the HRE to cover the entire subject of evidentiary rulings and, thus, it supersedes any common law doctrines that existed prior to that. But the HRE are not something newly crafted that wreaks havoc on trial lawyers and courts. Much of the HRE, as seen here, codifies the common law, but not all. Thus, the doctrine in our courts is not quite extinct; it lives on as expressly-carved out hearsay exceptions.

As for this case, HRE Rule 404(b) specifically prohibits the admission of other crimes, wrongs, or acts that negatively impact the defendant's character or show a propensity for crime unless a specific exception under HRE Rule 404(b) is met. None of the exceptions to the general rule of HRE Rule 404(b) allow evidence of criminal activity or bad acts that "become part of the history of the event at trial (i.e. res gestae)." Thus, the doctrine has been superseded in these circumstances. The HSC then held that the general prohibition of "bad acts" in HRE Rule 404(b) applied here, and remanded for new trial.

Justice Nakayama's Concurrence. Justice Nakayama agreed that the HRE supersedes the res gestae doctrine, but wrote separately "to emphasize the value and potential viability of res gestae evidence, as numerous federal courts that continue to rely on this doctrine have demonstrated." Justice Nakayama explained that the doctrine was used by Hawai'i courts long before the HRE and that federal courts still use it in spite of FRE Rule 404(b) and other rules of evidence. Moreover, she believes that the doctrine was carefully limited by HRE Rule 403 balancing and a causal nexus. Still, Justice Nakayama agreed that HRE supersedes a doctrine that, according to her, is "not antiquated."

A Superfluous Crawford Analysis. The superseding of the common law is not the same thing as the HRE taking precedence over a constitutional right, such as the rights in the Confrontation Clause. The HSC has recently held that when the statement is non-testimonial, the federal Confrontation Cl. does not apply, and, for purposes of the Confrontation Clause under the state constitution, a "firmly-rooted" hearsay exception would allow it to be admitted without violating constitutional rights. State v. Fields. Now we know that the only kinds of "firmly-rooted" hearsay exceptions are those in the HRE and nowhere else. If the statement is "testimonial," however, the Sixth Amendment to the federal constitution is implicated and that can defeat any exception spelled out in the HRE.

Friday, February 1, 2008

First Challenge to new Extended Term Sentencing leaves Statutes Intact.

State v. Cutsinger (ICA January 30, 2008)

Cutsinger was charged with burglary in the 2d (HRS § 708-811) and possession of burglar's tools (HRS § 708-822(1)(a)). He pleaded guilty to both counts. The State filed a motion for extended sentencing on the grounds that he was a "persistent offender". HRS §§ 706-661 and 706-662(1). The motion was granted. Cutsinger then filed a motion to reduce his sentence based on, inter alia, Apprendi v. New Jersey, 530 U.S. 466 (2000) and progeny. That part of the motion was denied, and Cutsinger was sentenced to 10 years of imprisonment on Sept. 9, 2006. Cutsinger filed his notice of appeal on Sept. 27, 2006.

Pending the appellate disposition, Cunningham v. California, 549 U.S. ___ (2007) and State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2004) came down from the US and Hawai'i supreme courts respectively. The cases held that the statutes used to extend Cutsinger's sentence were unconstitutional because they allowed a judge, and not a jury, to determine certain facts that would increase the statutory maximum (not including prior convictions). The Legislature responded by enacting Act 1 in the 2007 Special Session, which gave retroactive effect upon request by a prosecutor.

On Nov. 28, 2007, almost one month after the new extended-term laws took effect, the State filed a "Motion to Vacate Sentence and Remand for Resentencing in Accordance with Act 1 (2002 2d Special Session)" before the ICA.

Get to the Merits, Counsel! Cutsinger first argued that the ICA should decline reaching the questions of retroactivity and notice because it was not yet ripe for review. The ICA disagreed. It is unquestioned that Cutsinger will be resentenced, and the State has made it clear that upon resentencing, the State will seek extended terms based on the newly-enacted legislation. Therefore disposition of the retroactivity dispute is not a mere advisory opinion. Even if it was, noted the ICA, Hawai'i courts are not bound by the "case or controversy" requirement like federal district courts. State v. Fields, 67 Haw. 268, 274 n. 4, 686 P.2d 1379, 1385 n. 4 (1984). Then again, self-imposed prudence "militate against a court's issuing an advisory opinion or deciding matters" not yet ripe. Id.

Let's get Federal. The Hawai'i Constitution has no ex post facto clause. Thus, whether the retroactive application of the extended sentencing terms, is a purely a question of federal constitutional law. Article 1 § 10, cl. 1 of the U.S. constitution prohibits a State from passing any "ex post facto Law." Any law punishing as a crime an act previously committed that (1) was innocent conduct when done; (2) that makes the punishment for that crime more burdensome; or (3) that deprives the defendant of any defenses that were available at the time the alleged crime was committed is generally an ex post facto law. Collins v. Youngblood, 497 U.S. 37 (1990).

Additionally, the U.S. Supreme Court has stated that for a law to violate the ex post facto clause, it must be is retrospective (i.e. applies to events occurring before it was enacted) and is a disadvantage to the offender. Miller v. Florida, 482 U.S. 423 (1987). However, there is the ever-present exception--retrospective changes in procedure rather than the substantive law of the crimes are not ex post facto. Id. The procedural exception arises because it does not disturb the two reasons why the ex post facto clause was included into the federal constitution: to assure that legislatures were prohibited from enacting "arbitrary or vindictive legislation" and to assure that persons can rely on already-enacted legislation that give fair warning of their effect until explicitly changed.

Retro, yes; Ex post facto, no. The ICA held that retroactively applying Act 1 to Cutsinger does not violate the ex post facto clause because it does not increase the punishment beyond what it was prescribed before enactment. When he committed the crimes, Cutsinger still faced a 10-year sentence upon a finding of a "persistent offender." The criteria necessary to find a "persistent offender" is identical to the old statute. The only difference for Cutsinger is that a jury must find the critera beyond a reasonable doubt, not a judge. The new law is not more onerous than the old one. In fact, the ICA observed, the higher standard of proof and a jury finding of fact affords additional benefits.

The ICA also held that Act 1 is a procedural change even if the rationale is based on preventing a violation of Sixth Amendment rights. The allocation of the decision-maker is a procedural rule. Schriro v. Summerlin, 542 U.S. 348, 353 (2004), and Apprendi and its progeny have nothing to do “with the definition of crimes, defenses, or punishments, which is the concern of the ex post facto.” Collins, 497 U.S. at 51.

Unconstitutional, yes; void, no. Cutsinger’s also argued that Act 1 violated the ex post facto clause because the old law was voided by Maugaotega. Therefore, according to Cutsinger, there was an onerous burden being retroactively applied (and on remand no extended term statute applied). The constitutional infirmity in the old statutes was not based on any of the criteria used to find a convict a “persistent offender.” Instead, it was based on the burden used to find those facts and the proper factfinder. The infirmity does not speak to any of the substance in the old statutes.

Interestingly, the ICA examined the HSC’s decision in Maugaotega to self-imposed stay of its inherent judicial power to vacate Maugaotega’s judgment and sentence and remand to the circuit court with instructions to resentence with a jury to make findings beyond a reasonable doubt. This stay of judicial power, according to the ICA, reveals that the unconstitutionality of the statute did not extinguish the prior existence of the statute. The ICA also concluded that the HSC’s show of restraint revealed that the legislature was free to enact a law that would cure the unconstitutionality, which is promptly did.

But can it ever be void? The ICA examined the effect of a statute declared unconstitutional because of its procedural requirements. In other words, the ICA looked beyond the mere fact that a statute was found unconstitutional. It examined why it was unconstitutional, and determined that it was not void from the start because of the nature of the unconstitutionality rested with procedure rather than substance and because of an implicit hint to the legislature to make the fix. The ICA’s analysis leaves open the possibility that an unconstitutional law renders the law void. There can be situations where a law’s unconstitutionality affects the substance of the law that cannot be remedied by the legislative fix. Perhaps a law that is found unconstitutionally vague, such as the recent HNL ordinance at issue late last year in Beltran, is void ab initio. In that case the unconstitutionality rested in the conduct that was unlawful. It was not a procedural infirmity. Another example could be State v. Miyasaki, 62 Haw. 269, 614 P.2d 915 (1980), where the HSC held that under the Hawai’i Constitution, the derivative and use immunity is inadequate. No legislature can fix this (only a constitutional amendment or a ConCon can, but, believe me, that’s another story for another time).

The Triumphant Return of Intrinsic/Extrinsic facts!? Act 1 requires notice to the defendant that the State will seek extended terms w/in thirty days of his or her arraignment. When Act 1 applies retroactively, a defendant who had been sentenced under the older extended terms “shall be deemed to have received notice of an intent to seek [the retroactive application.]” Cutsinger argued that he received inadequate notice that the State would again seek to sentence him as a “persistent offender” because there was no allegation in the complaint. At first it appears that the ICA joined the majority of jurisdictions and held that Apprendi and progeny do not require the State to allege the sentence-enhancing facts in either an indictment or a complaint, but then it turned to the HSC’s cases prior to Cunningham and Maugaotega and carved out an exception. The HSC, in a footnote, observed the importance of the extrinsic-intrinsic distinction when it comes to alleging them in the indictment. Maugaotega, 115 Hawai’i at 449 n. 19, 168 P.3d at 579 n. 19.

From this footnote, the ICA held that intrinsic facts, that is, facts contemporaneous with or enmeshed with the charged crime (e.g. the particular status of a victim) must be alleged in the indictment because they are more or less part of the crime. Thus, reasoned the ICA, it made sense to treat the fact as part of the crime itself. On the other hand, those factors that stand outside of the crime being charged, such as being a “persistent offender” based on past acts, need not be charged with the indictment. In fact, it would actually prejudice the defendant if it were part of the indictment. Thus, there must be some kind of notice when the factors are extrinsic.

The new debate. So when the facts are extrinsic, there still must be notice pursuant to Act 1, but now the ICA has held that these facts cannot be asserted in the complaint. It begs the question of when, if not in the complaint, notice must be brought. Here, the ICA concluded that there was adequate notice for Cutsinger partly because of the awkward posture of his case. By the time he will be resentenced on remand, he will have been on notice for about eighteen months, and thus “ample time” to prepare his defense. The issue probably includes proactive applications of Act 1 too, but it’s a bit more limited. Act 1 provides notice to be brought within 30 days of the arraignment. Does this mean that when the fact is intrinsic, can it be left out of the complaint as long as the notice is brought within the proscribed time? Or what about when it’s extrinsic and it must be (1) outside of the complaint but (2) within thirty days? Does having time to provide an “ample defense” so long as its w/in thirty days have any play? We’re in uncharted territory, folks, and it’s very exciting.