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)

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.