Monday, June 29, 2009

Excessive Speeding Statute's Sentencing Provision Leaves Nothing to Discretion of Sentencing Courts.

State v. Nakamura (ICA June 29, 2009)

Background. Nakamura pleaded guilty to a single count of excessive speeding (HRS § 291C-105). Nakamura agreed to, pursuant to the district court's "suggestion," a six-month license suspension among other things like a fine and community service. The district court sentenced him pursuant to the suggested agreement. Nakamura later filed a motion to correct his illegal sentence on the grounds that the suspension period was improper. Nakamura maintained that the suspension period should have been 30 days. The motion was granted in part. The district court imposed a 30-day suspension running concurrently with the original six-month suspension. Nakamura appealed.

Discretionary Authority to Suspend License Superseded by Specific Excessive Speeding Statute. Nakamura pleaded guilty to excessive speeding. A person violating the excessive speeding statute for the first time "shall be sentenced as follows . . . [t]hirty-day prompt suspension of license and privilege to operate a vehicle during the suspension period[.]" HRS § 291C-105(c)(1)(B). However, "any court of competent jurisdiction may, in its discretion, revoke or suspend the license of any driver . . . convicted of a violation of this part or of any traffic law or regulation of the State or any political subdivision thereof involving a vehicle in motion." HRS § 286-125. The ICA agreed with Nakamura and held that the district court could not suspend Nakamura's license beyond the period provided by the excessive speeding statute.

The ICA pointed out that a person violating the excessive speeding statute "shall be sentenced" in the manner provided by HRS § 291C-105. HRS § 286-125, on the other hand, affords sentencing courts the discretion to suspend a license for offenses involving motor vehicles. The discretion afforded by HRS § 286-125 cannot, according to the ICA, empower the sentencing court set a suspension period in addition to mandatory sentencing suspension under HRS § 291C-105. Put differently, the excessive speeding statute carried with it mandatory sentencing impositions which deprived the sentencing court of the ability to modify the suspended license provision.

Agreed-upon Sentences Still must be Corrected. Nakamura agreed to the six-month sentence even though he later argued to the district court that his sentence was unlawful. The ICA noted that Nakamura's agreement did not waive his ability to later challenge the legality of his sentence. "[A] sentence which does not conform to statutory sentencing provisions, either in character or the extent of the punishment imposed, is void." State v. Sequeria, 93 Hawai'i 34, 36, 995 P.2d 335, 337 (App. 2007); see also State v. March, 94 Hawai'i 250, 254, 11 P.3d 1094, 1098 (2000) ("Although the sentencing court is given broad discretion in sentencing defendants, the sentence imposed must be authorized by statute.").

Saturday, June 27, 2009

Limitations on Campaign Contributions Depend on who gets it, not who Gives it.

Charmaine Tavares Campaign v. Wong (ICA June 25, 2009)

Background. Charmaine Tavares ran for mayor of Maui County, a non-statewide office with a four-year term. Tavares' campaign committee was called the Charmaine Tavares Campaign (CTC) and was organized to spend money on behalf of and accept contributions for her mayoral campaign. The CTC told the public it could accept contributions up to $4,000. Quong Enterprises, a real-estate development corporation from California, gave $2,000 to the CTC. Talboy Construction also gave $2,000. Cheeseburger in Paradise and its partner, Cheeseburger in Paradise-Waikiki, each gave $1,000. Barbara Wong, the Executive Director of the Campaign Spending Commission, informed the contributors that they violated the campaign spending laws and were subject to penalties and fines. The CTC filed a complaint seeking injunctive and declarative relief against Wong and the Campaign Spending Commission. Quong intervened. The circuit court granted summary judgment for the CTC and Quong. Wong appealed.

Plainly and Unambiguously Speaking . . . "No person or any other entity shall make contributions to . . . [a] candidate seeking nomination or election to a four-year non-statewide office or to the candidate's committee" exceeding $4,000. HRS § 11-204(a)(1)(C). On the other hand, "[n]o person or any other entity shall make contributions to a noncandidate committee" exceeding $1,000. HRS § 11-204(b). A "candidate's committee" is a committee that spends money on behalf of and accepts contributions for a candidate "with the candidate's authorization." A candidate can only have one "candidate's committee." HRS § 11-191. A "noncandidate committee," however, spends money and accepts contributions in order "to influence . . . the election of any candidate to political office, or for or against any issue on the ballot, but does not include a candidate's committee." HRS § 11-191.

According to the ICA, the statute was clear: contributions to a "candidate's committee" are limited to $4,000, HRS § 11-204(a)(1)(C), while contributions to a "noncandidate committee" are limited to $1,000. HRS § 11-204(b). It was undisputed that the CTC was Tavares' committee and not a "noncandidate committee." Thus, Quong and the others could lawfully give the CTC up to $4,000.

"Person or any Other Entity." The ICA rejected Wong's argument that the phrase "any other entity" was ambiguous. "Person" is "an individual, partnership, committee, association, corporation, or labor union and its auxiliary committees." HRS § 11-191. The words "any other entity" was not defined. The ICA concluded that the phrase "any other entity" simply meant "any entity that is not already listed in the broad definition of 'person.'"

A Matter of Receiving, not Giving. But this begs the question: what's out there than can't fall under this "broad definition of 'person'"? More specifically, what was Quong and the others? A "person" or some "other entity"? It would seem that Quong was a "person" as it was a "corporation." The ICA never answered this question. And it didn't have to. According to the ICA, the phrase "any other entity" did not cause confusion in interpreting the plain meaning of HRS § 11-204. The limitations of a contribution--be it a "person" or anyone else--hinge on whether it was given to a candidate's committee or a noncandidate committee.

Et "to," Brute? The ICA also rejected Wong's argument that the word "to" in HRS § 11-204(b) is ambiguous in light of the campaign spending reporting requirements. According to Wong, a contribution could either be given directly to the noncandidate committee or to some intermediate entity that tracks and accounts for the contributions. Wong urged the ICA to interpret HRS § 11-204(b) to require a contribution to be given directly to a noncandidate committee and nothing in between. The ICA held that while there are indeed separate reporting requisites in the campaign spending law (HRS §§ 11-212 and 11-213), it does "not cast doubt on the contribution limit set forth in HRS § 11-204(b)." The ICA noted that HRS § 11-204(b) limits any and all contributions by a person or other entity to $1,000. It does not require "that every contribution . . . be made in the first instance to a noncandidate committee."

But what Would Ambiguity get you Anyways? Wong made two arguments for an ambiguous statute. Why? "In construing an ambiguous statute, the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool." Kapuwai v. City and County of Honolulu, 119 Hawai'i 304, 309, 196 P.3d 306, 311 (App. 2008). It seems that if the statute is ambiguous, the courts are free to examine the legislative history and other extrinsic aids to determine its true meaning. But would Wong's arguments have been able to get to the crux of the case? Probably not. Wong argued that the phrase "any other entity" and the word "to" were ambiguous. Even if the ICA agreed with her, the rule of construction allows courts to examine the context of the "ambiguous words and phrases." Id.

Another reason for urging ambiguity is deference. Courts recognize that "deference to agency expertise is a guiding precept where the interpretation and application of broad or ambiguous statutory language by an administrative tribunal are subject to review." Holi v. AIG Haw. Ins. Co., Inc., 113 Hawai'i 196, 206, 150 P.3d 845, 855 (App. 2007). The ICA found no ambiguity here and thus was not obligated to defer to the Campaign Spending Commission's interpretation of HRS § 11-204.

No Legislative Support Anyways. The question of what ambiguity gets the Commission is purely academic in this case. The ICA disagreed with Wong's assertion that the plain and unambiguous interpretation of HRS § 11-204(a)(1)(C) defeated the purpose of disclosure and reporting requirements. According to the ICA, HRS § 11-204 limits campaign contributions. It does not speak to reporting the contributions. The ICA also noted that the legislative history behind HRS § 11-204(b) "contradicts or is inconsistent with" the plain and unambiguous language of the statute itself. Thus, it did not support Wong's claim that contributions to noncandidate committees "was intended to override the limit in HRS § 11-204(a)(1)(C) for contributions to candidates and candidate committees."

For Another Perspective. Blogger, Ian Lind, has been following this case. Here's his take.

Thursday, June 25, 2009

ICA Extends Tachibana to Juvenile Proceedings

In re TKC (ICA June 24, 2009)

Background. The State filed a petition against TC, a juvenile, alleging ten counts of engaging in sexual conduct with a person less than fourteen years old. TC was less than fourteen years old at the time of the incidents. The family court conducted a "stipulated trial." Police reports and the reports of a psychologist were stipulated into evidence for the family court--as the trier of fact--to review. The stipulation did not discuss TC's waiver of his right to testify; it merely said that the stipulation was "through and upon the advice of his attorney." After the evidence was submitted, TC's parents filed a motion to examine the makers of the various reports. The motion was opposed by the State on the grounds that the parents lacked standing. The family court denied the motion and entered findings of fact, conclusions of law, and rendered a decision that TC was a "law violator" for all counts. The family court ordered TC on probation until his 18th birthday. TC appealed.

Constitutional "Criminal" Procedures in the Prosecution of Juveniles. Although juveniles are protected by the state and federal constitutions in family court proceedings, strict adherence to criminal procedures available to adult criminal defendants are not required. In re Doe, 62 Haw. 70, 72, 610 P.2d 509, 511 (1980). The ICA noted that many procedural safeguards from the Bill of Rights apply in juvenile proceedings when the juvenile can be imprisoned for a term of years: the right to be "informed of the nature and cause of the accusation"; the right to counsel; the right to confrontation and cross-examination; and the right against self-incrimination. Id. at 72, 610 P.2d at 511. As a general rule, while juvenile proceedings need not conform to all of the requirements of a criminal trial, the proceedings must nonetheless "scrupulously maintain standards consistent with fundamental fairness." Id. at 73, 610 P.2d at 511-12.

And now this Includes the Right to Testify. TC urged the ICA to recognize plain error in the family court's failure to obtain a knowing, voluntary, and intelligent waiver of TC's constitutional rights. The ICA agreed and held that a juvenile defendant has the "right to testify on his or her own behalf as this is a fundamental constitutional safeguard which is essential to the concept of due process. " The right to testify on one's own defense is guaranteed by the state and federal constitutions. State v. Tachibana, 79 Hawai'i 226, 231-32, 900 P.2d 1293, 1298-99 (1995). This right "may not be waived by counsel as a matter of trial strategy, but may be relinquished only by the defendant." Id. Trial courts, therefore, must engage in an on-the-record colloquy with the criminal defendant to ensure that any waiver of the right to testify is knowing and voluntary. Id. at 233-36, 900 P.2d at 1300-03.

The ICA noted that the colloquy is necessary because "[m]any defendants are unaware that they have a constitutional right to testify which no one, not even their lawyer, may take away from them." Id. at 233-34, 900 P.2d at 1300-01. The ICA extended this rationale to juveniles. According to the ICA, juveniles are "particularly likely to be unaware of the constitutional right to testify on one's own behalf and particularly vulnerable to the admonitions of counsel--as well as those of parents or other authoritative adults." The ICA concluded that it "would be unduly burdensome, and inconsistent with the established rule of law in this state, to place a burden on minors to assert their fundamental constitutional rights when the supreme court has determined that this approach is too burdensome to be applied to adults."

A Kiddie Colloquy. The ICA held that juveniles must be advised of their right to testify and when the juvenile does not testify, the family court must engage in a colloquy to obtain an on-the-record waiver of that right. The ICA also noted that family courts should "take into account those special concerns that are present when young persons, often with limited experience and education and immature judgment, are involved." Here, the ICA concluded that the family court did not determine whether TC knowingly and voluntarily waived his right to testify. The error was not harmless.

Others with "Special Concerns?" The ICA noted that family courts should take into account the "special concerns" of juveniles and their inability to understand their rights. The ICA noted that most juveniles have "limited experience and education and immature judgment." There certainly may be criminal defendants out there who have the same limited experience and education and the same immature judgment. Should grown-up courts take into account the "special concerns" like a family court? It would certainly make sense. The right to testify--at least according to the ICA--is just as important in a criminal defendant's case as in a juvenile's law-violator proceeding. Shouldn't it work the other way too? After all, the basis for the piecemeal incorporation of the Bill of Rights and other constitutional protections is due process. Due process only requires certain fundamental rights, but these rights that are deemed fundamental are no different in juvenile proceedings than from criminal cases. So it would make senses that if there are "special concerns" for juveniles during the Tachibana colloquy, there ought to be "special concerns" for any criminal defendant. It questions whether a formulaic colloquy is effective at all.

Parents have Standing, but Failed to Raise Issues that were Independent from their Child. Standing to appeal typically require (1) that the person was a party to the action; (2) the person seeking a change on appeal had standing to oppose it below; and (3) the person is one affected or prejudiced by the appealable order. Keahole Defense Coalition, Inc. v. Bd. of Land and Natural Res., 110 Hawai'i 419, 428, 134 P.3d 585, 594 (2006). After culling the rules of the family court and HRS chapter 571 and noting that there is a "liberty interest in the care, custody, and control of" children protected by the due process clause in the Hawai'i constitution, In re Doe, 99 Hawai'i 522, 533, 57 P.3d 447, 458 (2002), the ICA concluded that the parents have standing to assert their claims and addressed them. The only issue that was distinct from TC's issues was the denial of their request to examine the "witnesses." Unfortunately, there was no argument supporting their contention that the family court erred in denying their request. Thus, the ICA deemed the issue waived. Hawai'i Rules of Appellate Procedure Rule 28(b)(7).

A new Theory of Standing? Standing is usually determined with a three-part test: (1) whether there was actual or threatened injury; (2) the injury is fairly traceable to the action; and (3) a favorable decision is likely to provide relief for the injury. Mottyl v. Miyahira, 95 Hawai'i 381, 389, 23 P.3d 716, 724 (2001). Standing requisites may also be "tempered, or even prescribed, by legislative and constitutional declarations of policy." Life of the Land v. Land Use Com'n, 63 Haw. 166, 172 n. 5, 623 P.2d 431, 438 n. 5 (1981). The Keahole test quoted by the ICA addresses standing to appeal from a decision and seems to be distinct from the initial inquiry of whether the appealing party had standing before the lower court or agency (As a matter of fact, the second prong of the Keahole test requires that the party have standing below.). So did the parents have standing before the family court in the first place? The ICA held that they did. But it did not apply the injury-in-fact test. It didn't even cite it. Then again, it looks like the ICA took the position that the Hawai'i Constitution, HRS chapter 571, and the rules of the family court have conferred standing to parents in juvenile proceedings.

Minors Engaging in Consensual Sexual Conduct are Committing Statutory Rape. TC and his parents conceded that the plain and unambiguous language of the relevant sex assault statutes (HRS §§ 707-730(1)(b) and 707-732(1)(b)) encompasses fact scenarios in which the actor the complaining witness are both under fourteen years old. TC and his parents argued that a literal application of the statutes produced an absurd and unjust result because it would punish children for engaging in "consensual" sex. The ICA rejected this claim. The ICA stated that despite "any reservations we may have about the result in particular instances," it could not "ignore the plain language of the statutes in question." Furthermore, the ICA noted the "age gap" in HRS § 707-732(1)(c). The legislature decriminalized sexual conduct among older teenagers (i.e. minors ages 14 or 15 may have sexual contact with other minors that are no more than five years older). According to the ICA, the legislature could have, but did not, decriminalized all sexual conduct among minors--as TC and his parents argue. The ICA did not disturb the policy adopted by the legislature and found no absurd result.

State may Prosecute one of the Consenting Minors and not the Other. TC was not the only minor engaging in sexual activity, but he was the only one prosecuted. Discriminatory enforcement of criminal laws exist when the defendant can show an "intentional or purposeful discrimination that is deliberately based upon an unjustifiable standard such as race, religion or other arbitrarily classification." State v. Kailua Auto Wreckers, Inc., 62 Haw. 222, 226-27, 615 P.2d 730, 734-35 (1999). According to the ICA, merely prosecuting one over another is not the kind of selectivity that arises into a violation of constitutional equal protection and due process rights. Moreover, it appeared to the ICA that TC was significantly older than the other minors and had engaged in several acts of sexual contact. According to the ICA, "[p]rosecutors may evaluate respective culpability, strength of witnesses and defenses, and perceived credibility, as well as consider the need to prevent future misconduct and the need for rehabilitative or educational services for accused juveniles."

No Right to Privacy to Engage in Sexual Behavior with Other kids. The ICA rejected the claim that consensual sex among minors is protected by the right to privacy under the state and federal constitutions. Minors, like adults, may have some right to sexual privacy under the federal constitution. City of Akron v. Akron Center for Reprod. Health, Inc., 462 U.S. 416 (1983). But the State may restrict this privacy right for minors when the restriction "serves a significant state interest." Carey v. Population Srvs. Int'l, 431 U.S. 678, 693 (1977). According to the ICA, legislature determined that children under fourteen must be protected from sexual activities. See State v. Buch 83 Hawai'i 308, 320, 926 P.2d 599, 611 (1996) ("children are fragile organisms that are subject to abuse and require vigilant protection"). The ICA refused to disturb the legislature's concern and held that "the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen." The ICA then examined the separate and distinct right to privacy under the Hawai'i Constitution. Haw. Const. Art. I § 6. Only "personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in this guarantee of personal privacy." State v. Mueller, 66 Haw. 616, 627-28, 671 P.2d 1351, 1358-59 (1983). The ICA simply did not find a fundamental privacy right to engage in sexual activity with other young children.