Tuesday, March 31, 2009

Apology Resolution has no Legal Effect on Admission Act.

Hawaii v. OHA (SCOTUS March 31, 2009)

Background.  In 1893, the Hawaiian Kingdom was replaced with the Republic of Hawaii.  Under the Newlands Resolution of 1898, Congress proclaimed that the Republic of Hawaii ceded Government and Crown Lands to the federal government in fee.  In 1900, the Territory of Hawaii was established and Congress passed the Organic Act of 1900, which "made clear that the new Territory consisted of the land that the United States acquired in 'absolute fee.'"  In 1959, Congress admitted Hawaii to the Union through the Admissions Act.  The Admissions Act stated that "the United States grant[ed] to the State of Hawaii . . . the United States' title to all the public lands and other public property within the boundaries of the State of Hawaii[.]"  Admission Act § 5(b).  Public lands were held in trust to promote public purposes like the betterment of Native Hawaiians, developing home ownership, and public education.  Admission Act § 5(f).  Under state law, the State could alienate these lands provided that the proceeds went to those purposes.  In 1993, Congress passed the Apology Resolution.

Former crown lands on Maui were held by the State.  The Housing Finance and Development Corporation (HFDC) was permitted to remove the parcel and sell them to develop affordable housing.  The HFDC was required to compensate the Office of Hawaiian Affairs funds from the sale of those lands.  OHA sued for an injunction on the alienation of the lands on the grounds that there was a cloud on the title for Hawaiian ownership rights.  The trial court ruled against OHA, but the Hawai'i Supreme Court vacated.  According to the HSC, a "plain reading of the Apology Resolution . . . dictat[ed]" the vacation.  The HSC ordered an injunction on all ceded lands until the claims of the Native Hawaiians were resolved.  The State appealed to the Supreme Court of the United States (SCOTUS).

Federal Question Jurisdiction Found.  The SCOTUS first held that it had appellate jurisdiction to review the HSC's opinion.  The SCOTUS can review a state supreme court case when "a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion."  Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).  According to the SCOTUS, the HSC provided no plain statement that its decision rested on state law grounds.  As a matter of fact, the SCOTUS counted 77 references to the federal Apology Act and noted that the HSC's decision was "dictated" by the federal law.  Having relied so heavily on the pronouncements of the Apology Act, it was clear to the SCOTUS that the HSC did not come to its decision on independent state law grounds thereby exposing its decision to appellate review in Washington.

All Apologies.  Justice Alito, writing for an unanimous court, characterized the issue as whether the Apology Resolution deprived Hawai'i of its power to alienate state lands "that the United States held in absolute fee and granted to the State of Hawaii effective upon its admission into the Union."  The SCOTUS ruled that the Apology Resolution had no effect on the State's powers.  Congress, according to the SCOTUS, used verbs that were "conciliatory or precatory."  In the Resolution, Congress acknowledged, apologized, expressed commitment, recognized, and commended things.  "Such terms," according to the SCOTUS, "are not the kind that Congress uses to create substantive rights."

The State owns Ceded Lands in "Absolute fee."  The SCOTUS noted that the Admission Act required the State to hold ceded lands in trust for the public--including the betterment of Native Hawaiians--but held them in fee.  The Apology Resolution did not change that.  The SCOTUS gave three reasons why the Apology Resolution had no bearing on the Admission Act.  First, the HSC relied too much on the "whereas" clauses in the Resolution--clauses that have no operative effect.  See District of Columbia v. Heller, 554 U.S. ___, ___ n. 3 (2008).  Even if the clauses did have a legal effect, it would essentially repeal that portion of the Admission Act that gave the title in fee.  Implicit repeals are "not favored and will not be presumed unless clear and manifest."  Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 664, 662 (2007).  Finally, the SCOTUS reasoned that if the Apology Resolution did indeed affect the title to the ceded lands, it would have been a retroactive cloud on the title.  "Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State."  Idaho v. United States, 533 U.S. 262, 280 n. 9 (2001).  According to the SCOTUS, the same concept applies to "all of the State's public lands--not just its submerged ones[.]"

Knocked Back to Hawai'i on Remand.  The issue is not quite over.  The SCOTUS reversed the judgment of the HSC and remanded for further proceedings.  This means that the HSC will have a chance to write an opinion that comes to the same conclusion--the State cannot alienate ceded lands--but on independent state grounds.  That way it presents no federal question and could be shielded from federal review.  Then again, the SCOTUS could always review it to see if the opinion violates the Admission Act or the United States Constitution.  Perhaps the key to a review-proof opinion lies in the adoption of the homegrown standard for a permanent injunction.

So what just Happened?  It is unclear how far the implications behind this opinion go.  Reading it narrowly, the SCOTUS reviewed a simple federal question: whether the Apology Resolution had any legal effect on the Admission Act.  The answer was, without a doubt, no.  It relied primarily on statutory construction.  But in answering the question, the SCOTUS determined that, under the Admission Act, the State received the ceded lands in "absolute fee" in 1959.  It never, however, explored what "absolute fee" really means.  Not only does the Admission Act convey title in "absolute fee," but title is held in a public trust.  The uses of the land must be for certain public uses ranging from education to Native Hawaiians.  So does this mean that OHA can bring a breach-of-trust action against the State for the alienation of lands?  If so, does that mean that, as part of the remedy in such an action, it can enjoin it all over again?  These questions are also federal ones since they call on a court to interpret the terms of the Admission Act head on.  Perhaps in the next round.

Monday, March 30, 2009

Revocation Proceedings are Exclusive Means for Enforcing Probation Conditions

State v. Asuncion (ICA March 30, 2009)

Background.  Asuncion was convicted of custodial interference in the second degree (HRS § 707-727).  In 2004, the district court sentenced Asuncion to one year probation.  One of the conditions of probation was not to contact the complaintant.  Later that year, Asuncion was arrested on two separate occasions for custodial interference.  When he appeared for trial in 2006, he was charged with two counts of contempt of court.  The contempt of court charge was based on having contact with the complaintant again.  At the close of the State's evidence, Asuncion moved for an acquittal on the grounds that the State merely proved a probation violation.  The motion was denied and Asuncion was found guilty.  Asuncion appealed.

A Primer on Probation.  The ICA began with sentencing under HRS chapter 706.  "No sentence shall be imposed otherwise than in accordance with this chapter."  HRS § 706-600.  The sentencing court is authorized, in most cases, to place a person on probation.  A person on probation is obligated to follow certain mandatory conditions and discretionary ones imposed by the sentencing court.  HRS § 706-624.  When a probationer fails to follow any of the conditions imposed, the court, upon motion, may revoke probation.  HRS § 706-625.  When a court revokes probation, the court may impose any sentence that might have been imposed originally for the crime of which the defendant was convicted.  Id.  However, once the period of probation is finished, "the defendant shall be relieved of any obligations imposed by the order of the court and shall have satisfied the disposition of the court[.]"  HRS § 706-630.  The ICA pointed to the commentary under HRS § 760-630 and observed that "no formal discharge is required upon termination."

New Prosecutions Cannot Enforce Conditions of Probation.  In this case, no one moved for an order revoking Asuncion's probation.  Instead, it brought fresh charges of contempt of court.  The ICA characterized this issue as one of first impression: whether the court could convict a defendant of criminal contempt for violating "a discretionary condition of" probation.  After examining the variety of approaches in different states, the ICA agreed with "the majority of jurisdictions and [held] that criminal contempt is not available as a sanction for a violation of a condition of probation."

A Statutory Analysis.  Although the ICA surveyed approaches in other states, its holding essentially came from a statutory analysis.  According to the ICA, nothing in HRS chapter 706 authorizes a criminal-contempt prosecution to sanction violations of probation.  When a defendant fails to comply with the conditions of probation, the exclusive sanctions are in HRS § 706-625--the court is free to re-sentence a probationer to anything in the underlying offense.

Revocation Proceedings are the Exclusive Remedy to a Probation Violation.  The ICA also strictly construed the contempt statute.  "A person commits the offense of criminal contempt of court if . . . [t]he person knowingly disobeys or resists the process, injunction, or other mandate of a court[.]" HRS § 710-1077(g).  The ICA examined the commonly understood definitions of "process," "mandate," and "injunction," HRS § 1-14, and held that the no-contact condition of probation was not a "process, injunction, or other mandate of a court" which would trigger a criminal contempt prosecution.  The ICA explained that the statutory scheme for probation simply had no place for a new prosecution.

Distinguishing Doe.  In arriving to that conclusion, the ICA distinguished In re Doe, 96 Hawai'i 73, 26 P.3d 562 (2001), where the Hawai'i Supreme Court held that a juvenile may be adjudicated for criminal contempt based on violations of a court-ordered protective supervision.  The ICA explained that a family court's order for protective supervision is an independent mandate to comply with terms set forth in the order.  Here, according to the ICA, the district court's order with conditions were not independent.  They were imposed as a condition of his probationary status that could be withdrawn if a condition was not met.

The Coupe de Grace?  The ICA also observed that when Asuncion was charged with contempt, his probationary period had already ended.  Thus, the no-contact order was no longer hanging over his head.  This meant that but for the probation condition, Asuncion's conduct in contacting the complaintant would have been perfectly legal.  No one moved to revoke probation and he was a free man.  The ICA reversed the conviction.

So Prosecutors and P.O.s Speak Now . . .  The ICA has made it clear that the sole means of enforcing probation conditions comes from the revocation process.  A prosecutor or probation officer cannot circumvent the revocation proceedings by bringing a new prosecution.  This also means that a motion for revocation of probation can only be brought while the defendant is on probation.  (Once filed, the period of probation tolls.  HRS § 706-627.)

Saturday, March 21, 2009

HSC Reels in ICA over Inherent Court Powers.

State v. Hinton (HSC March 20, 2009)

Background.  Hinton was first indicted for allegedly touching a girl (sex assault in the 3d. -- HRS § 707-7321(1)(b)).  As the jury deliberated, the jurors informed the trial court that they could not reach a unanimous verdict.  The jury was hopelessly deadlocked and the trial court declared a mistrial.  Hinton moved for a dismissal pursuant to State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982).  The trial court granted the motion and the State appealed.

The ICA reversed the trial court's dismissal.  Relying on cases from different jurisdictions, the ICA concluded that separation of powers concerns require that a Moriwake dismissal be used sparingly.  The ICA  held that the trial court abused its discretion in granting the Moriwake motion.  Judge Foley dissented.  Hinton appealed.

Moriwake and the Inherent Power to Dismiss.  The trial court's inherent power "to protect itself; the power to administer justice whether any previous form of remedy has been granted or not; the power to promulgate rules for its practice; and the power to provide process where none exists" allows the court to dismiss a prosecution.  Moriwake, 65 Haw. at 55, 647 P.2d at 712.

In determining whether to exercise that power, the court must balance "the interest of the state against fundamental fairness to a defendant with the added ingredient of the orderly functioning of the court system."  Id. at 56, 647 P.2d at 712.  In striking this balance, the court examines six factors: (1) the severity of the offense; (2) the number of prior mistrials and the circumstances of the jury deliberations therein; (3) the character of the prior trials in terms of length, complexity, and similarity of evidence presented; (4) the likelihood of any substantial difference in another trial; (5) the trial court's own evaluation of the case; and (6) the professional conduct and diligence of counsel, especially the prosecutor.  Id. at 56, 647 P.2d at 712-13.

The Moriwake Framework Subsumes any Separation of Powers Concerns.  The HSC rejected the ICA's current view that separation of powers concerns require that the power to dismiss an indictment be used in rare and unusual cases.  According to the HSC, the Moriwake balancing test rejects the notion that the trial court's discretionary power to dismiss an indictment was limited to "extraordinary situations."  Any separation of powers concerns are subsumed in the six-factored analysis itself.  At oral argument the State conceded this point.

A Scolding?  The HSC held that "by injecting an additional 'separation of powers' analysis, taken from two out-of-state cases, into the Moriwake framework, the ICA acted in contravention of this jurisdiction's case law." In a footnote, the HSC pointed out that the ICA's decision to look to foreign jurisdictions "in the face of controlling Hawai'i law was a departure from this court's precedent, which the ICA is bound to follow."  Robinson v. Ariyoshi, 65 Haw. 641, 653, 658 P.2d 287, 297 (1982).  According to the HSC, the ICA "casts the law in disarray, creating uncertainty for trial courts, the prosecution, and the defense" when it does not follow precedent.

The HSC also noted that the ICA itself was inconsistent when it came to Moriwake by citing to an unpublished disposition in January 2008 where the ICA affirmed a dismissal over Chief Judge Recktenwald's dissent based on similar separation-of-powers concerns.  This, according to the HSC, will simply not do.  In light of the new rule regarding unpublished dispositions, "it is especially important for the ICA to consistently follow precedent, which, in the instant case, it failed to do so."

Applying Moriwake.  The HSC also rejected the ICA's application of the Moriwake framework.  The HSC examined each of the six factors and concluded that the trial court did not abuse its discretion in dismissing the case.  And so it is clear that the trial court has the inherent power to dismiss a prosecution on Moriwake grounds without prior mistrials.  All of it, of course, is a delicate balance.

Tuesday, March 17, 2009

Men (and Large-Capacity Ferry Vessels) Governed by (General) Laws.

Sierra Club v. DOT (HSC March 16, 2009)

Background. The Hawai'i Superferry was an interisland boat service that used state harbors throughout the islands. The Sierra Club and two other non-profit organizations sued the Department of Transportation and the Superferry on the grounds that no environmental assessment was prepared prior to launch of the Superferry. After the circuit court dismissed the case, the HSC vacated and remanded it back to Maui in Sierra Club v. Dept. of Transp., 115 Hawai'i 299, 167 P.3d 292 (2007). On remand, the circuit court entered summary judgment against the DOT and Superferry. It also granted a permanent injunction against the Defendants. The circuit court concluded that Sierra Club was the prevailing party and awarded attorney's fees and costs.

In the meantime, the Legislature, at Governor Lingle's urging, convened a special session and promulgated "A Bill for an Act Relating to Transportation," known as Act 2, in order "to facilitate the establishment of an inter-island ferry service and, at the same time, protect Hawai'i's fragile environment[.]" The Act exempted "large capacity ferry vessel companies" from the requirements of HRS chapter 343, the Hawai'i Environmental Protection Act, and was set to expire on July 31, 2009. The circuit court granted the Superferry and DOT's motion to dissolve the permanent injunction pursuant to Act 2. The Sierra Club appealed.

Legislative Powers over State Lands Limited to General Laws. "The legislative power over the lands owned by or under the control of the State . . . shall be exercised only by general laws[.]" Haw. Const. Art. XI § 5. Act 2 § 15 stated that "state lands previously authorized to be used to facilitate or support the operation of a large capacity ferry vessel[] shall be authorized to be used to effectuate the provisions of this Act." Thus, according to the HSC, Act 2 is an exercise of the legislative power over State land. The big question was whether Act 2 was a "general law."

But what About Bulgo? The HSC explained that the term "general law" appeared throughout the Hawai'i Constitution, had already been interpreted in Bulgo v. County of Maui, 50 Haw. 51, 430 P.2d 321 (1967), where the HSC held that a statute regulating the replacement of county officials was a "general law." The Bulgo court defined a "general law" as "laws which apply uniformly throughout all political subdivisions of the State." Id. at 58, 430 P.2d at 326. The HSC distinguished Bulgo on the grounds that the statute at issue in Bulgo had uniform applicability and did not create a class with only one member of a temporary duration.

Finding a "General" law with the Colorado Two-Step. To determine if an act was a "general law" rather than special legislation, the HSC imported a two-step test from Colorado: (1) whether the classification adopted by the legislature is a "real or potential" class rather than one "logically or factually limited to a class of one and thus illusory" and (2), if it is indeed a real or potential class, whether that class was reasonable. People v. Canister, 110 P.3d 380, 383 (Colo. 2005). The HSC, relying on cases from Colorado, Nebraska, and Arizona, summarized that "in determining whether a law creates an illusory class depends not only on whether others may theoretically enter the class, but on the 'actual probability' that others will enter the class in the future." See Id. at 384; Haman v. Marsh, 467 N.W.2d 836, 848 (Neb. 1991); Republic Inv. Fund I v. Town of Surprise, 800 P.2d 1251, 1259 (Ariz. 1990).

The HSC applied the Canister case to Act 2. According to the HSC, Act 2 created a class that was logically and factually a class of one and thus was illusory. Act 2 exempted from environmental assessments a "large capacity ferry vessel company." The 21-month viability of Act 2 limits any realistic application of "large capacity ferry vessel companies" other than the Superferry. The HSC explained that no other ferry company could get the requisite agreements and permits with the Public Utilities Commission, the State, and the federal government in order to benefit from Act 2. The Superferry has the only operating agreement in the State. Thus, Act 2 created a class of one. Act 2 fails to create a genuine class and is not a "general law."

The Spectre of Populism? The Hawai'i constitution limits the exercise of legislative power to exercise only "general laws" rather than special legislation. The majority concluded that this limitation was intended to prevent the inherent dangers in passing special legislation that favors specific individuals or entities. This, according to the HSC, was a corollary of the constitutional prohibition against governmental discrimination against persons or entities. By comparing the equal protection with the "general laws" limitation, the HSC has hit upon an old debate raging over the interpretation of the Fourteenth Amendment. If that is the case, then the Hawai'i Constitution neither permits legislation favoring entities and legislation discriminating against entities.

This latter principle actually began in a piece of dictum from Santa Clara County v. Southern Pac. R. R. Co., 118 U.S. 394 (1886), in which the U.S. Supreme Court announced that the 14th Amendment forbids a State from denying corporations as well as persons equal protection under the laws. This sparked the beginning of personhood for corporations, a concept well established in the law today (and subject to much scholarly debate). Of course, there was no balance in the federal constitution, which does not have a "general laws" limitation. That meant that a large corporation, like Jay Gould's railroad company, could lobby a state legislature for special laws and attack state railroad regulations and taxes on the grounds that they were in violation of the 14th Amendment.

The opponents of special interests and railroads were the Populists, a political party that was prevalent in Western States like Nebraska and Colorado. Perhaps this "general laws" limitation is their lasting legacy? So if the Superferry is a modern day railroad company, then the HSC's analysis, which relied heavily on cases from states with similar limitations would have made the Populists proud.

The Private Attorney General Doctrine. The HSC agreed with the circuit court that the Sierra Club was the prevailing party and was entitled to attorney's fees. See Food Pantry, Ltd. v. Waikiki Business Plaza, Inc., 58 Haw. 606, 620, 575 P.2d 869, 879 (1978). And because the Sierra Club was the prevailing party, the HSC examined whether it could recover under the private attorney general doctrine. An exception to the "American Rule" that each party is responsible for paying its own expenses, is the private attorney general doctrine.

Under that doctrine, courts can award attorney's fees "to plaintiffs who have vindicated important public rights. Courts applying this doctrine consider three basic factors: (1) the strength or societal importance of the public policy vindicated by the litigation, (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff, [and] (3) the number of people standing to benefit from the decision." Maui Tomorrow v. BLNR, 110 Hawai'i 234, 244, 131 P.3d 517, 527 (2006). According to the HSC, the Sierra Club's case met these three factors and was entitled to fees and costs.

Other Issues. The HSC examined other issues relating to the award of attorney's fees. In particular, it held that the State waived sovereign immunity to both liability and an award of attorney's fees under the private attorney general doctrine.

Justice Nakayama's Concurrence and Dissent. Justice Nakayama wrote separately and Chief Justice Moon joined. Justice Nakayama agreed that Act 2 was unconstitutional, that the Sierra Club was the prevailing party, and that the private attorney general doctrine authorized a fee award. However, Justice Nakayama took issue with the relinquishment of sovereign immunity. According to Justice Nakayama, "both the issue of attorney's fees and the private attorney general doctrine are beyond the scope of the state's waiver of sovereign immunity."