Sunday, March 30, 2008

No Savior from Waiver

Peroutka v. Cronin (HSC March 27, 2008)

Background. Peroutka with Baldwin and Ralph Nader with Camejo filed petitions with the Hawai'i Office of Elections to place their names on the presidential ballot as candidates for President and V.P. The Office of Elections rejected their petitions for a failure to collect the requisite number of signatures. Many of the signatures were stricken because they were not accompanied by an address, date of the signature, or other information. Both requested administrative hearings. At the Nader/Camejo hearing, it was agreed that a Nader representative would "flag" disputed signatures; that the Chief Election Officer would review the signatures and that his decision was final; and that Nader/Camejo reserved the right to challenge the constitutionality of Hawai'i regulations and statutes. At the Peroutka/Baldwin hearing, Peroutka objected to having the Chief Election Officer preside over the hearing. The agency concluded that both candidates failed to acquire enough valid signatures. Both appealed to the circuit court, where the findings and conclusions were affirmed.

A Direct Constitutional Challenge Waived Because it was not Argued. The HSC refused to determine whether the one-per-cent requirement was unconstitutional because the candidates failed to properly argue the issue on appeal. True, the candidates did challenge the constitutionality of the law as a point of error, but their arguments did not challenge the law itself. According to the HSC, the candidates argued for a liberal construction of the law because the law touched upon a fundamental right to run for office. This, according to the HSC, is not the same thing as a constitutional challenge to the law itself. When an argument is mentioned as a point of error, but is not advanced in the opening brief, the appellate court may deem that argument waived, HRAP Rule 28(b)(7), and here the HSC did just that.

An Ultra-fine Distinction? The candidates' arguments assume that the signature laws are not inherently unconstitutional. Rather, they argue that because they regulate or set up a barrier to the exercise of a constitutional right, they must be liberally construed. The argument leads to an inevitable conclusion that when the law is not liberally construed, the constitutional right is unduly infringed, and thus, the law as applied would be unconstitutional. The remedy is not necessarily the striking down of the law, but a liberal construction of that law. Nevertheless, the HSC takes the position that that is not the same thing as a direct constitutional challenge. It begs the question: how does an appellate lawyer avoid waiver? With a direct constitutional challenge to the laws themselves?

No Constitutional Argument, no error found. The candidates argued that the Office of Elections should have tried harder in deciphering the handwriting on the petitions and it should have attempted to cross-reference the address information with the registration rolls. The law requires at least one percent of the voting populace to sign on in favor of a candidate. HRS § 11-113(c)(2)(B). The regulations require that the chief election officer must ensure that the signatory is a registered voter; if the information provided is illegible, it "may" not be counted. The HSC held that the candidates failed to show why the Office of Elections must make these efforts in light of the fact that illegible and unverified information "may" be discounted. According to the HSC, the candidates pointed to nothing in the record or within the statutory and regulatory framework to support their claims.

But did they point to the state and federal constitutions? If they did, then the constitutional element appears to have been waived. And if it has been waived, are we dealing with a matter of characterization? By arguing that the constitutions require the Office of Elections to exercise its discretion in accepting or rejecting voter signatures in light of the constitutional right to run for office, haven't the candidates adequately preserved, albeit indirectly, a constitutional challenge to the application of the laws and regs? Perhaps if the candidates characterized their argument as a direct constitutional challenge--any framework that allows an agency to exercise unfettered discretion in rejecting the signatures without taking into consideration the right of the candidate to run for office or even a presumption favoring inclusion is an unconstitutional framework--they might have avoided this fate. Of course, this is mere speculation.

Due Process Satisfied with (and in spite of) the chief Officer Presiding. The HSC rejected the candidates' arguments that having the Chief of Election officer preside over the hearings was unfair and partial. The HSC affirmed the circuit court's conclusion that the candidates received a fair and impartial hearing because they failed to show that the Chief Election Officer had a "direct, personal, pecuniary interest" in the hearing's outcome. See Sifagaloa v. Bd. of Trs. of Employee's Ret. Sys., 74 Haw. 181, 191, 840 P.2d 367, 372 (1992).

Wednesday, March 26, 2008

DHS owes a duty of care to Children it Investigates.

Kaho'ohanohano v. Dept. of Human Services (HSC March 20, 2008)

Background. A two-and-a-half-year-old child broke her leg while under the custody of her mother and her mother’s boyfriend. While DHS investigated the matter as to whether it was child abuse, it allowed the child to stay with the mother and boyfriend. Before finishing the first investigation, the child suffered life-threatening abdominal injuries. DHS later determined that it was indeed child abuse and custody went over to the father. The father sued DHS alleging negligence in failing to protect the minor, take timely custody, and conduct a reasonable and competent investigation. After a 16-day bench trial, the circuit court found DHS liable for negligence and the negligent infliction of emotional distress. Damages were apportioned jointly and severally among the mother, her boyfriend, and DHS.

So you want to sue the State, huh? Sovereign immunity means that the State cannot be liable unless it has relinquished immunity or consented to being sued. Bush v. Watson, 81 Hawai‘i 474, 481, 918 P.2d 1130, 1137 (1996). Such an exception is the State Tort Liability Act. Under HRS § 662-2, when a State employee commits a tort, the State is also liable “in the same manner and extent as a private individual under like circumstances.” The HSC calls this the private analog exception to sovereign immunity. The HSC read this exception to SI as a narrow one. The State is only liable for torts for which a private entity would be liable; it’s still immune to novel theories of liability.

DHS Liability arose from its Special Relationship to Children. The HSC, after examining cases in federal courts and other jurisdictions, held that the Kaho'ohanohanos demonstrated a private analog. In a negligence action, there must be a breach of a duty of care. Logically, this means that there must be a duty. The HSC agreed with the Kaho'ohanohanos and found that DHS had a duty to control a 3d party from harming the child. Normally, explained the HSC, there is no duty to protect people from the harm of another. Here, however, there was a “special relationship” between the child and DHS. Rest. Torts 2d § 315(b). From this special relationship arose the duty to prevent physical harm to the child.

Finding a duty from Legislation. The HSC then rejected DHS’s position that the Legislature clearly imposed no duty to protect children it investigates from harm. DHS maintained that there was no legislative intent or clear language showing that it must protect children from harm. The HSC, however, noted that the “foremost obligation” in interpreting statutes is to ascertain and give effect to the intention of the Legislature. It also noted that laws in pari materia (upon the same subject) must be construed “with reference to each other. What is clear in one statute may be called to aid to explain what is doubtful in another.” HRS § 1-16. The HSC examined the purposes and procedures of the Child Protective Act, HRS Ch. 587, which is designed to protect children from abuse, and authorizes DHS to investigate possible abuse of children, and provide immediate services to children being investigated, and make a clear and prompt decision as to whether the child is being abused. From these mandates, the HSC held that the Legislature created a “duty flowing to children specifically identified to DHS as being the subject of suspected abuse.”

Logic Prevails over plain Language? There appears to be no statute expressly stating that DHS owed a duty of care to children it investigates. Rather, there are entire chapters in the HRS explaining and mandating DHS to conduct investigations of child abuse, to evaluate whether there is abuse, and to act quickly when it determines that abuse exists. From these mandates, the HSC held that DHS owed a duty of care to children in question. The duty arose from an inference and with the in pari materia doctrine. But did the doctrine apply? After all, HRS § 1-16 allows a court to use the clear meaning of statute A to interpret statute B when statute B’s meaning is “doubtful” so long as both address the same subject. It seems that the meaning of statutes was not at issue, but rather whether the statutes spoke to a duty of care. In such a case, the clear meaning in the statutes were used to determine the meaning of not another statute, but to answer a legal question. This appears to be more of an exercise of logic based on the structure of the legislation than an orthodox application of the in pari materia doctrine (and the HSC does not say that it is an application of in pari materia, it merely quotes the doctrine).

Tort Liability for other Agencies? The HSC surveyed the legislation covering DHS and determined that the structure of the legislation and the mandates in that legislation have a legal effect that is not mentioned expressly in that legislation. It seems that this method of using statutes to answer difficult questions could apply to other agencies with investigative powers, like DLNR or the Dept. of Public Safety for instance.

Leave it to the Pros, the Standard of Care that is. Finding a duty is one thing, but whether the DHS breached that duty depends on the standard of care at work. DHS argued that, based on Youngberg v. Romeo, 457 U.S. 307 (1982), it is entitled to proper deference in exercising its professional judgment in dealing with the child. The HSC disagreed. First, Youngberg, where the US Sup. Ct. deferred to the "professional judgment" of an institution holding a profoundly retarded individual, did not apply. Second, because this was a negligence action, the applicable standard of care is measured against what a reasonable and prudent person would have done under the circumstances in determining whether the defendant breached its duty. Doe Parents No. 1, 100 Hawai‘i 34, 82, 58 P.3d 545, 593 (2002). The same degree of use, skill, knowledge, and experience of reasonably prudent professionals would apply here too. Similarly, the standard of care for a DHS social worker can be measured by the standards authorized by statute, regulations, and its guide given by DHS. The HSC also held that there was sufficient evidence showing a breach of the duty of care and legal causation, that is, the failure to intervene sooner was a substantial factor in the causation of the injuries.

Other Matters: NIED and Joint/Several Liability. After establishing a predicate physical injury to property or another person, plaintiffs may recover from negligent infliction of emotional distress when a reasonable person would be unable to adequately cope with the mental stress stemming from the circumstances. Doe Parents No. 1, 100 Hawai‘i at 69, 58 P.3d at 580. The HSC examined the findings of facts and found no error in finding DHS liable for NIED. The HSC also held that considerable amendments to joint and several liability statutes affecting the government-tortfeasor did not apply retroactively to divest the Kaho'ohanohanos of their substantive rights in this claim.

Justice Levinson’s Concurrence. Justice Levinson concurred with the result, but wrote separately to observe that he still disagreed with the decision in Lee v. Corregedore, 83 H. 154, 925 P.2d 324 (1996), which was cited by the majority in this case.

Justice Acoba’s Concurrence. Justice Acoba concurred and wrote separately because he believed that the better approach is to abandon physical injury as a predicate to NIED recovery and adopt generalized standards. Justice Acoba would prefer the HSC to find the standard articulated in Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970), which is essentially the same standard adopted by the majority sans the physical injury.

Tuesday, March 11, 2008

Statutory Interpretation is Plain as day.

State v. Mainaaupo & State v. Lopez (HSC March 5, 2008)

Background. Both Mainaaupo and Lopez were charged with unauthorized control of a propelled vehicle (UCPV) (HRS § 708-836). Both went to a jury trial. Both Lopez and Mainaaupo asserted the mistake-of-fact defense (HRS § 702-218) on the grounds that both believed that the person who authorized their use of the vehicle was the registered owner. The circuit court, in both cases, denied their request to have a mistake-of-fact jury instruction read.

In Mainaaupo's case, the circuit court also instructed the jury that he, the defendant, has a legal duty to obtain consent to operate the vehicle from the registered owner. Meanwhile, at Lopez's trial, the prosecutor made two comments in his closing argument. In the first, the prosecutor appealed to jurors' common sense and asked them to evaluate Lopez's silence after he was pulled over. The prosecutor also argued that Lopez failed to call a witness to corroborate his testimony. One went to Loepz's silence after he had been arrested by the police. The other pertained to the failure produce a critical witness to corroborate Lopez's own testimony.

Palisbo Distinguished. The lower court rejected the mistake-of-fact instruction based on State v. Palisbo, 93 Hawai'i 344, 3 P.3d 510 (App. 2000), and the legislative history of HRS § 708-836. HSC started off by distinguishing Palisbo. In that case, the ICA held that the lower court correctly refused a mistake-of-fact instruction because Palisbo "plainly admitted that he was aware that the person who had authorized his use of the vehicle was not the owner, but, rather, merely the cousin of the alleged owner." Unlike that case, the defendants here asserted a mistake-of-fact. Both believed that the person authorizing them to use the car were the registered owners. And so, when the defendant claims that he or she believed that the registered owner allowed him or her to use the car in question, the mistake-of-fact instruction is required, and Palisbo is not an obstacle.

Plain Language Requires the Mistake-of-fact Instruction. Putting Palisbo aside, the HSC examined HRS § 702-218, which states that it is a defense when the "accused engaged in the prohibited conduct under ignorance or mistake of fact if . . . [t]he ignorance or mistake negatives the state of mind required to establish an element[.]" Here are the elements of UCPV are (1) the conduct of exerting control over a thing by operating it; (2) the attendant circumstance of the thing being another's propelled vehicle; and (3) the other attendant circumstance of the person's control or operation being without the registered owner's consent or authorization. See HRS § 702-205. Here, the HSC applied the general rule that the knowing or intentional state of mind applies to all elements (unless it "plainly appears" otherwise in the statute), including the attendant circumstance that the control was without the registered owner's consent. In other words, the State must prove beyond a reasonable doubt that the defendant intentionally or knowingly took control or operation of the car without the registered owner's consent. In sum, the HSC held that the UCPV defendant may assert the mistake-of-fact defense (and ultimately get the instruction) to negate the essential element of authorization. This also means, according to the HSC, that the circuit court erred in instructing the jury that a defendant is required to show that he has a legal duty to determine whether the bailee is the registered owner.

Legislative History is Meaningless when it's Plain and Unambiguous. Interestingly, the State argued that the legislative history behind the UCPV statute that would render the state-of-mind requirement inapplicable to the third element. The HSC rejected this argument because the language of the UCPV statute was plain and unambiguous. The general rule of construction in interpreting statutes is that the plain language must be applied absent an ambiguity. When there is an ambiguity, then extrinsic evidence, such as the legislative history, may be used to discern the legislature's intent. The HSC held that because the language of the statute is plain and unambiguous, "we are not at liberty to rely upon legislative history . . . even if the history may show that the legislature really meant and intended something not expressed by the phraseology of the statute." Thus, legislative history is meaningless when the language is plain and unambiguous.

A Dramatic step. During the Richardson and Lum years, the HSC continuously held that the plain meaning, though very important in interpreting a statute, is not the only aid of construction. In fact, the earlier cases suggest that it is equally important to look to the legislative policy and intent behind the statute. For example, look to Perry v. Planning Commission, 62 Haw. 666, 676-77, 619 P.2d 95, 103 (1980), where the HSC held that a statute with the word "shall" doesn't always mean "shall" depending on the intent of the Legislature and the policy behind the statute. According to this older line of cases, the plain language, while helpful, does not necessarily preclude the aid of extrinsic help. Now, however, it appears that the court is no longer at liberty to rely on this history--even in the face of contrary legislative history and policy.

New Battlegrounds in Statutory Interpretation. The "foremost obligation" of the court is to ascertain and give effect to the intent of the Legislature. State v. Van Dyke, 101 Hawai'i 377, 383-84, 69 P.3d 88, 94-95 (2003). The starting point is the language of the statute itself, and absent an absurd result, the court must give effect to the plain meaning of the unambiguous language. Thompson v. Kyo-Ya Co., 112 Hawai'i 472, 475, 146 P.3d 1049, 1052 (2006). Now, it seems that this “starting point” has become the end point too. Given the "foremost obligation," the ruling today suggests that the legislative history is never an aid that helps courts understand legislative intent when the language is plain. Put differently, the “foremost obligation” is met when the language is plain and can have no other meaning. The issue shifts. The question is no longer what the Legislature intended, but whether the words are ambiguous, and, if they are, what the Legislature really meant. The HSC did not need to delve further into this question here because the State did not argue that the statute was ambiguous. Perhaps next time.

Commenting on the Right to Silence is Prosecutorial Misconduct. Three factors help the court determine prosecutorial misconduct (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength of the evidence against the defendant. State v. Hauge, 103 Hawai'i 38, 47, 79 P.3d 131, 140 (2003). The HSC held that because there is nothing mroe basic and fundamental than the right to remain silent, State v. Ahlo, 57 Haw. 418, 414, 558 P.2d 1012, 1016 (1976), and because the jury would "naturally and necessarily" interpret from the comments that the defendant's silence was wrong. As for the second factor, there was no curative instruction. In the third factor, the HSC held that the evidence against Lopez turned primarily on how he got the car. Thus,the evidence is not "so overwhelming that . . . the [State's] intrusion on Lopez's right to remain silent may not have contributed to his contribution." Thus, there was prosecutorial misconduct and it was not harmless error.

Commenting on the lack of Witnesses, However, is not. The HSC then examined if it was misconduct for the prosecutor to comment on Lopez’s failure to call Ramba, his friend whom he thought owned the car and was authorized to drive. According to the HSC, while it has previously ruled that it is permissible for the defendant to comment on the failure of the State to call a witness and thereby allow the jury to infer that the putative witness’s testimony would have hurt the State’s case, State v. Padilla, 57 Haw. 150, 552 P.2d 357 (1976), it had not determined whether it would be the same for the State to comment on the defendant’s failure to call a witness. The HSC, without applying the three-factors for prosecutorial misconduct and based in part on a federal case, US v. Bautista, 23 F.3d 726, 733 (2d Cir. 1994), found no error and concluded that the State may “invoke the adverse inference against the defendant for his [or her] failure to call a witness” when (1) it would be “natural under the circumstances for the defendant to call a witness” and (2) when the comments do not suggest to the jury that the defendant had the burden to produce the evidence. Here, Lopez conceded that it would have been natural for him to call his friends to corroborate his testimony. The HSC also held that the prosecutor’s comments did not shift the burden over to Lopez to call his friend to testify (though he did comment that had he did testify, he would have voted not guilty).

Justice Acoba's Concurrence and Dissent. Justice Acoba concurred all the way until this last point. Justice Acoba believed that it was prosecutorial misconduct to comment on Lopez’s failure to call Ramba, even under the newly-adopted Bautista test. Justice Acoba explained that Lopez’s theory at trial was that he thought Ramba was authorized to loan him the car. Taken as a whole, the prosecutor’s comments allowed the jury to think that in order to acquit Lopez, the defendant was required to show he did not have the mental state to commit UCPV. Specifically, the prosecutor commented that Lopez’s testimony that he believed Ramba was the registered owner who had given him permission to use the car was insufficient, and that in order for, the prosecutor at least, to vote not guilty, Ramba would have to testify. This comment for Justice Acoba impermissibly shifts the burden over to the defendant and thus arose to error. As Lopez’s conviction is vacated, Justice Acoba urged that a similar argument be abandoned on remand.

Tuesday, March 4, 2008

One Judgment to rule them all.

Carlisle v. One Boat (ICA February 27, 2008)
Background. One night off the Waianae Coast, DLNR agents spotted a fishing boat with gill nets. The agents told the people on the boat to pick up the nets with a diver in the water to ensure that no coral would be harmed. There was no such diver. Even if there had been, the agents saw several pieces of broken coral stuck in the net. The prosecutor’s office, under the aegis of the State, brought forfeiture proceedings to seize the boat that was used in the commencement of the intentional taking of live coral or live rocks in violation of HAR §§ 13-95-70 and 13-95-71. The claimants, fishermen, in a motion to dismiss, argued that these offenses are not covered by the forfeiture law. The circuit court agreed and ordered that the case be dismissed. It took almost three years, however, for the court to enter a final judgment on December 6, 2004. The State filed a notice of appeal shortly after entry of the judgment.

Appealing from Judgment, NOT an Order. According to the claimants, there was no jurisdiction because the State failed to file a notice of appeal within 30 days after the entry of the 2002 order. See Hawai'i Rules of Appellate Procedure (HRAP) Rule 4(a)(1). The ICA firmly rejected this. First, this is a civil forfeiture thus the rules of civil procedure apply; including HRCP Rule 58, which requires every judgment to be a “separate document.” Second, a court order that resolves claims against parties is subject to an appeal only after the order has been reduced to a judgment pursuant to HRCP Rule 58. Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 119, 869 P.2d 1334, 1338 (1994). Here, the order was indeed entered by the court, but it took nearly three years to enter the judgment. The ICA pointed out that under Rules of the Circuit Court of Hawaii (RCCH) Rule 23, the prevailing party within 10 days after a “decision of the court awarding any judgment, decree, or order” must prepare a final judgment. According to the ICA, the claimants had a duty to enter the final judgment within 10 days of the order. They failed to do so, and the State should not be penalized for it. The ICA held that it had appellate jurisdiction.

RCCH Rule 23 is a strange rule. What would have happened if the claimants failed to prepare a judgment and the circuit court never got around to it? Then that means there’d be no appeal and the putative issues on appeal would be held hostage by the prevailing party. In most cases, one must hope that it would never get that egregious. Sooner or later the losing party, esp. if that party anticipates on being the appellant, would pipe up.

Both DLNR Statutes and the Forfeiture Act got it “Covered.” Once it held that it did indeed have jurisdiction, the ICA held that violations of DLNR regulations were “covered” by the plain language of the forfeiture act. HRS § 199-7(b) expressly states that “[a]ny equipment, article, instrument, aircraft, vehicle, vessel, business records, or natural resources seized [by DLNR agents or police pursuant to subsection (a)] is subject to forfeiture pursuant to chapter 712A.” The ICA stated that this language “unambiguously provides that property used in violation of [DLNR] rules . . . is subject to seizure and forfeiture.” Equally clear is HRS § 712A-5(1)(b): “[p]roperty used or intended for use in the commission of, attempt to commit, or conspiracy to commit a covered offense” is subject to forfeiture. A covered offense is an “offense which specifically authorizes forfeiture.” HRS § 712A-5(a).

Even Legislative History Repeats Itself. Not only was the plain language supportive, but the ICA held that the legislative history “confirms” the legislative intent that the DLNR was authorized to bring forfeiture actions. From the enaction of HRS § 199-7 in 1978 and throughout its amendments over the years, the ICA found sufficient legislative history supporting the DLNR’s power to forfeit various kinds of property, including vessels, when it is used in connection with DLNR rules violations.

In 1988, the legislature revised the forfeiture law by repealing the old provision and enacting HRS Chapter 712A. The ICA found no evidence that enacting the new chapter was intended to alter the already-vested authority of DLNR to forfeit property. Then, in 1989, the legislature amended HRS § 199-7 again and provided that seized property would be subject to forfeiture pursuant to chapter 712A (and not the statute the older forfeiture provision). The legislature also added “natural resources” as an object subject to DLNR seizure and forfeiture. The claimants argued that the 1989 amendments limited the DLNR’s power to forfeit only “natural resources” and even if it was, it is irrelevant to interpreting HRS chapter 712A. The ICA rejected this interpretation. When delving into legislative history, newer enactments may be used to interpret the meaning and intent of other statutes. Bowers v. Alamo Rent-A-Car, Inc., 88 Hawai ‘I 274, 282, 965 P.2d 1274, 1282 (1998) (Ramil, J., concurring). This was, according to the ICA, such a case.

Illuminating two murky, but well-tread areas. The ICA shed some light on two murky, but well-tread areas in the law. First, and perhaps more importantly, is the issue of reducing an order to a final judgment so that it may be subject to an appeal. The ICA clearly lays out this often misunderstood area in civil procedure. Why should it be reduced to a judgment, one might ask in frustration (especially when one might have to wait two years and nine months before getting a final judgment). Typically, there are several orders entered by a court before the decision ultimately is reduced to a final judgment. In order to avoid piecemeal appeals, the procedural rules encourage all issues from a case to be brought up at once. Hence a single notice of appeal from judgment allows the appellant to address issues that have bee preserved throughout the entire course of the lawsuit. Of course, there are exceptions like rare interlocutory appeal and the not-so-rare post-judgment order and more than one appeal may be unavoidable.

The other area related to legislative history. The general rule that legislative history is an aid in ascertaining the intent of the legislature is well-established. But the ICA took used legislative history in an uncommon way by using legislative history for statute A as an aid in ascertaining the intent behind statute B. Legislative history can sometimes be unwieldy or, in many cases, unhelpful. Perhaps the method used here can become a useful tool in interpreting statutes of all kinds. Then again, it also raises the question of whether this method is dicta in light of the fact that the plain language disposed of the issue.