Saturday, February 28, 2009

Party's Over for ex parte Order

Doe v. Doe (ICA February 27, 2009)

Background.  Mother and Father had a child.  Mom had physical custody and Dad had visitation rights.  For about two years a custody battle ensued.  Various guardians ad litem were appointed and temporary restraining orders filed.  Dad filed an ex parte motion for immediate change of custody on the grounds that Mom was constantly filing TROs against Dad and that she taught their child to say that Dad was molesting her.  Attached to the motion was evidence from a guardian ad litem that Mom failed a polygraph test.  The ex parte motion was granted without a hearing and the police took the child.  Mom moved to vacate the ex parte order on the grounds that it unconstitutional.  The family court eventually held a trial on all matters in the case.  The family court concluded that the constitutionality of the ex parte order was moot because custody matters were litigated at trial.  The family court awarded custody to Dad, who later moved to California with the child, Mom with visitation rights.  Mom appealed.

Moot 'em up.  The family court concluded that the ex parte order's constitutionality is a mooted by the ultimate resolution of the custody battle after trial.  The ICA disagreed.  The mootness doctrine applies when "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 compromised."  Hamilton v. Lethem, 119 Hawai'i 1, 5, 193 P.3d 839, 843 (2008).  The ICA held that the ex parte order awarding physical custody to Dad twenty months before trial had such a serious effect on the ultimate custody award that it cannot be considered a moot issue.  The ex parte order colored the proceedings after its issuance.  Much of the family court's findings and conclusions rested on the fact that present custody was with Dad.  Furthermore, according to the ICA, even if it is moot, the issue would fall under the collateral-consequences exception recently unveiled by the HSC in Hamilton.

Mootness may Depend on the view.  The analysis is a bit unclear here.  Two components must be compromised for a case to be moot: adverse interests and effective remedy.  No one can question Mom and Dad's interests are adverse.  As for the other component, the ICA noted Mom argued it was justiciable on appeal because the effective remedy would be a new trial "untainted by the impacts" of the ex parte order.

Rethinking Mootness: Jurisdiction v. Justiciability?  According to the ICA "[m]ootness is an issue of subject matter jurisdiction."  Although the ICA did not cite it, this statement is similar to a recent articulation in Hamilton v. Lentham, 119 Hawai'i 1, 4, 193 P.3d 839, 842 (2008), in which the HSC stated that it was "axiomatic that mootness is an issue of subject matter jurisdiction."  This is news.  Mootness has been described as an aspect of the "prudential rules of justiciability."  Doe v. Doe, 116 Hawai'i 323, 326, 172 P.3d 1067, 1070 (2007).  Other aspects of justiciability include ripeness, political questions, advisory opinions, and standing.  Justiciability is a doctrine courts impose on themselves.  See Life of the Land v. LUC, 63 Haw. 166, 172, 623 P.2d 431, 438 (1981).  And because it is self-imposed, just about every aspect of the doctrine is loaded with exceptions--especially mootness--and courts can afford to be flexible.  See IndyMac v. Miguel, 117 Hawai'i 506, 515, 184 P.3d 821, 830 (App. 2008).  Jurisdiction, on the other hand, is not self-imposed and there is probably no room for flexibility.  When a court does not have it, it cannot proceed.  So it is unclear how mootness is an "issue of subject matter jurisdiction."  (It's even more unclear why the ICA did not cite Hamilton.)  Have the two concepts been mixed together?  Perhaps it means that there is no real difference between the two?

"Fertile Grounds for Misuse of the Judicial Process."  A parent's right to care, custody, and control of his or her child is a fundamental liberty interest protected by the federal constitution.  Troxel v. Granville, 530 U.S. 57, 65 (2000).  Similarly, the right to rear children is protected by the Hawai'i Constitution and "parental rights cannot be denied without an opportunity for them to be heard at a meaningful time and in a meaningful manner."  In re Doe, 99 Hawai'i 522, 533, 57 P.3d 447, 458 (2002).  The ICA agreed with Mom that the State deprived her of her fundamental liberty interest in the custody of her child without due process of law.

"At its core, procedural due process of law requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner before governmental deprivation of a significant liberty interest."  State v. Bani, 97 Hawai'i 285, 293, 36 P.3d 1255, 1263 (2001).  According to the ICA, the notice and the opportunity to be heard must usually happen before the deprivation.

The ICA held that absent exigent circumstances, the Hawai'i Constitution requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody.  The ICA noted that absent a true emergency, "ex parte custody proceedings can provide fertile ground for misuse of the judicial process."  The ICA further held that if there is a true emergency requiring an immediate change of custody, the ex parte order still has to include "(1) a post-deprivation hearing, promptly set; and (2) the grounds for this extraordinary measure.  A parent deprived of custody in this manner must be given a prompt and meaningful opportunity to address the allegations supporting the immediate change of custody."

Other Issues.  The ICA addressed issues concerning protective orders under the rules of the family court, the appointment of guardians ad litem, and interpreting the best interests of the child, and evidentiary rulings.  It should be noted that the results from polygraph tests and a person's willingness to take a test are inadmissible for any purpose.  State v. Chang, 46 Haw. 22, 31-38, 374 P.2d 5, 11-14 (1962).

Sunday, February 15, 2009

ICA goes Seriatim over an "Original Judgment"

Overruled by HSC.

Roxas v. Marcos (ICA February 12, 2009)

Background. The facts underlying this case are nothing short of extraordinary and Justice Levinson's recitation of the facts in the first Roxas v. Marcos, 89 Hawai'i 91, 969 P.2d 1209 (1998), reads like a novel. In 1971, Roxas found the famed "Yamashita Treasure," a treasure buried by Japanese soldiers in the Philippines during World War Two. Ferdinand Marcos' people stole the treasure, arrested Roxas, and tortured him. Roxas transferred his interests in the treasure to the Golden Budha Corporation. In 1988, Roxas and the Golden Budha sued Ferdinand for false imprisonment and battery. GBC sued Ferdinand and his wife, Imelda, for conversion, constructive trust, and fraudulent conveyance of the stolen treasure. After Ferdinand died, the parties stipulated to substitute Imelda as the personal representative of his estate. The jury found against the Marcos estate on all counts, but not against Imelda in her personal capacity.

The circuit court entered judgment on August 28, 1996. The judgment was amended on October 21, 1996 and both parties appealed. In 1998, the HSC reversed and vacated part of the amended judgment, but "[i]n all other respects, the circuit court's amended judgment is affirmed." Roxas v. Marcos, 89 Hawai'i at 157, 969 P.2d at 1275. On remand, the circuit court entered a 2d Amended Judgment and ordered that the judgment be entered nunc pro tunc as of October 21, 1996. For various reasons, the circuit court entered a 3d Amended Judgment in 2000 and again entered it nunc pro tunc as of October 21, 1996. The circuit court again amended the judgment and entered the 4th Amended Judgment on September 6, 2001, which again was nunc pro tunc as of October 21, 1996.

On May 8, 2007, Roxas (at this point Roxas died and his estate was litigating), filed motions to extend the 2d and 4th Amended Judgments for another ten years. This extension was the only point on appeal.

"Original Judgment" Means the First Judgment. Without an extension, every judgment is presumed satisfied ten years after the judgment was rendered. However, "[n] o extension of a judgment or decree shall be granted unless the extension is sought within ten years of the date of the original judgment or decree was rendered." HRS § 657-5. Judge Foley, writing for the majority, noted that the words "original judgment" were undefined and looked to its ordinary meaning. Gillian v. Gov't Employees Ins. Co., 119 Hawai'i 109, 115, 194 P.3d 1071, 1077 (2008). According to Judge Foley, the term "original judgment" means "the first judgment rendered by a court." And so, in this case, the first judgment issued by the circuit court was on August 28, 1996. The plaintiffs here sought an extension in 2007--one year too late.

Appellate Disposition has no Effect--in this case. Judge Foley wrote that the HSC's reversal and vacation of the October 21, 1996 judgment did not change the fact that the "original judgment" was still the first one rendered by the circuit court. As Judge Foley pointed out, the HSC's opinion may have vacated certain parts, but the judgment was affirmed "in all other respects." The first judgment was "not extinguished by Roxas such that the judgment was no longer valid and existing." Thus, it cannot be considered an extinguished judgment.

Judge Leonard's Concurrence. Judge Leonard agreed with Judge Foley that the words "original judgment" means "the first judgment rendered in a case." Judge Leonard explained that any other interpretation would lead "to ambiguity and uncertainty in the application of a statute of limitations intended to set a deadline, a date certain, for the expiration of a judgment, unless an extension is sought before that date." The language of the statute was clear and it did not provide a tolling period for post-judgment relief, including appellate dispositions.

Judge Nakamura's Dissent. Judge Nakamura disagreed and construed the words "original judgment" to mean "the first enforceable judgment that has not been vacated or extinguished." The purpose of HRS § 657-5, according to Judge Nakamura, is to "establish deadlines for the enforcement and extensions of judgments." In light of that purpose, Judge Nakamura believed that it "would make little sense to run the limitations period for a judgment extension under HRS § 657-5 from the date of a judgment that has been vacated on appeal and can no longer be enforced." According to Judge Nakamura, the HSC effectively extinguished the first judgment when it was vacated and remanded.

And because the HSC extinguished the first judgment, Judge Nakamura's analysis required him to identify the first enforceable judgment. According to Judge Nakamura, none of the judgments at issue were enforceable until they were certified under HRCP Rule 54(b), which did not happen until the circuit court entered the 4th Amended Judgment in 2001. Therefore, under Judge Nakamura's analysis, the extension request was timely.

So what if Everyone Agreed that the First Judgment was Extinguished? Would it have made a difference if the judges believed that the HSC clearly extinguished the first judgment? The answer is unclear. Judge Foley noted that the language in HRS § 657-5 is plain and unambiguous. Thus, this is a matter of statutory interpretation, which suggests that it would not matter if an appellate disposition or some other event rendered the first judgment unenforceable. On the other hand, Judge Foley pointed out that in this particular case, the circuit court erred in concluding that the first judgment was extinguished because it misread two cases. It is unclear from Judge Foley's opinion if a true extinguishment of the first judgment would have made a difference.

It may, however, be clearer to Judge Leonard. Judge Leonard wrote that Judge Nakamura's analysis in determining the "original judgment" as the first enforceable judgment would "effectively extend the life of any final judgment that is amended before, by, or after an appeal[.]" In Judge Leonard's view, this would "eliminate the quality or state of originality from the term original judgment" and that would undermine the plain, obvious, and clear language of the statute. Judge Leonard also pointed out that the statute does not leave room for the construction that the ten-year period is tolled by post-judgment relief and that the burden for requesting an extension is "minimal." So even if she did agree with Judge Nakamura that the HSC extinguished the first judgment, it may not have made much difference when it came to the words "original judgment."

This leads us to an interesting point. What is the law? This opinion has been issued seriatim--a rare feat in the Hawai'i Reports. The difference between Judges Foley and Leonard is unresolved and has been left for another day.