Sunday, July 19, 2009

HSC Splinters on when to Guide Lower Courts or Tribunals.

Kapuwai v. City and County of Honolulu (HSC July 16, 2009)

Background. Kapuwai was injured on the job and brought a worker's compensation claim against his employer, the City. The City accepted responsibility. Later a doctor determined that Kapuwai suffered permanent disfigurement. After a hearing, a hearings officer concluded that the City had to pay additional amounts for the permanent disfigurement. The City appealed to the Labor and Industrial Relations Board (LIRAB), which modified the decision. Kapuwai appealed to the ICA. The ICA held that Kapuwai was entitled to relief that was not provided by the LIRAB if he would be able to prevail in proving certain findings before the LIRAB. The ICA, therefore, vacated the LIRAB's decision and remanded.

The ICA also addressed the issue of attorney's fees. Kapuwai argued that the LIRAB erred in concluding that he was not entitled to attorney's fees. The ICA recognized that it could not decide the issue because whether the City lost the case on remand had yet to be determined. Nonetheless, the ICA examined the issue in order to "provide guidance . . . to assist the LIRAB on remand." The ICA concluded that the City would be obligated to pay attorney's fees and costs if it failed to reduce the compensation award on remand.

ICA Should not have Addressed Unripe Issues. Although the Hawai'i Constitution does not prohibit courts from rendering advisory opinions, courts "nonetheless recognize that the prudential rules of judicial self-governance founded in concern about the proper--and properly limited--role of courts in a democratic society are always of relevant concern. For even in the absence of constitutional restrictions, courts must still carefully weigh the wisdom, efficacy, and timeliness of an exercise of their power before acting." State v. Fields, 67 Haw. 268, 274, 686 P.2d 1379, 1385 (1984). According to the majority, it was clear that the case was not final in light of the ICA's vacation and remand. Thus, the "guidance" from the ICA on the issue of attorney's fees and costs was unripe. When a case is not ripe, appellate courts have no jurisdiction to consider the appeal, State v. Moniz, 69 Haw. 370, 373, 742 P.2d 373, 376 (1987), and the appellate courts can only review the case to correct jurisdictional errors. Tamashiro v. Dept. of Human Servs., 112 Hawai'i 388, 398, 146 P.3d 103, 113 (1996). According to the plurality, there was no current controversy over the issue and the ICA's discussion was an advisory opinion that "raise[d] serious concerns regarding separation of powers, judicial interference, and premature adjudication." The plurality vacated the ICA's decision pertaining to attorney's fees.

Justice Nakayama's Dissent. Neither party raised the question of whether the ICA erred in providing guidance to the LIRAB based on ripeness. According to Justice Nakayama, the HSC should have never addressed the issue because it was never raised as a point of error. See Hawai'i Rules of Appellate Procedure (HRAP) Rule 28. Justice Nakayama nonetheless concluded that the ripeness issue addressed by the majority is "likewise unripe because none of the parties have argued it before this court." Justice Nakayama wrote that the HSC often rendered "advisory opinions" in order to guide lower courts and tribunals. According to Justice Nakayama, "[b]y holding that the [ICA] gravely erred because a portion of its opinion was advisory, the majority's holding appears to implicate that the precedential significance of certain past decisions of this court." Justice Nakayama also pointed out cases where the ICA issued similar advisory opinions. "In this regard," she wrote, "the majority does not explain why we may issue advisory opinions and the ICA, pursuant to the majority's holding, cannot."

Justice Acoba's Concurrence. Justice Acoba concurred with the plurality but wrote separately to address Justice Nakayama's dissenting opinion. According to Justice Acoba, the failure to raise ripeness issues under HRAP Rule 28 was irrelevant. "It is well-established . . . that lack of subject matter jurisdiction can never be waived by any party at any time." Chun v. Employees' Ret. Sys. of State of Hawai'i, 73 Haw. 9, 13, 828 P.2d 260, 263 (1992). "When reviewing a case where the circuit court lacked subject matter jurisdiction, the appellate court retains jurisdiction, not on the merits, but for the purpose of correcting the error in jurisdiction." Amantiad v. Odum, 90 Hawai'i 152, 159, 977 P.2d 160, 167 (1999). According to Justice Acoba, courts cannot avoid the issue because a party failed to raise jurisdiction as an issue.

Justice Acoba also examined the cases cited by the dissent where the appellate courts offered guidance to the lower court or tribunal. Justice Acoba noted that "guidance" is not inherently bad. "The dissent makes too much of the term 'guidance.' . . . As the court of last resort, one of our roles is to provide 'guidance,' which it does in many forms for the proper administration of justice. The question in each case is not whether an appellate court has offered 'guidance,' which it does in many forms, but whether the appellate court thereby addresses matters that must be decided for the appropriate disposition of the issues remanded." Justice Duffy joined.

The Plurality's Approach to Guidance. The plurality also addressed Justice Nakayama's dissent. The plurality wrote that the dissent overlooked important distinctions between cases where appellate courts have provided guidance. According to the plurality, the guidance provided by appellate courts (1) focused on the propriety of judicial action or the deprivation of constitutional rights, (2) did not cross into areas committed to other branches of government, and (3) were consistent with their duty to prevent judicial mistakes or the reoccurrence of a judicial mistake on remand. In this case, the ICA provided guidance to the LIRAB which undermined the purpose of the ripeness doctrine. According to the plurality, ripeness is intended to prevent courts from avoiding "premature adjudication" and to "protect the agencies from judicial interference until an administrative decision has been formalized." Save Sunset Beach Coal. v. City and County of Honolulu, 102 Hawai'i 465, 483, 78 P.3d 1, 9 (2003). Moreover, the prudential rules of judicial self-governance also arise out of "considerations flowing from our coequal and coexistent system of government." Id. These considerations, according to the plurality, meant that administrative agencies should be given the chance to decide and enforce its own decisions without premature judicial interference. The guidance provided by the ICA was the kind of judicial interference that must be avoided.

A Time for Guidance? At least one thing is clear: the remedy in this case is odd. The ICA's guidance portion of the opinion has been vacated. But the LIRAB still might have to address the attorney's fees issue. Should it follow the guidance that was just vacated by the HSC? What if the LIRAB did not? Wouldn't it certainly mean that an appeal will be filed and the ICA would have to address the issue again? Would the ICA's analysis be different this time around?

And what about the ICA? When can it provide guidance to the lower courts or tribunals? The answer appears to depend on whom at the HSC you ask. If you ask the plurality, the answer comes after a three-part test. If you ask the concurrence, guidance should be provided "for the proper administration of justice." And if you ask Justice Nakayama, it's unclear what the answer will be. She never indicated that the guidance by the ICA here was improper or not. Justice Nakayama dissented because she believed it was inappropriate to address issues that were not raised on appeal--even this one about ripeness--and, thus, the guidance should not have been vacated. To make things even more troubling, the answer may be different the next time around too. Circuit Court Judge Kim joined Chief Justice Moon to form a plurality. We simply cannot know what Justice Recktenwald would have done. The authoritative answer, then, must wait for another day.

Wednesday, July 1, 2009

Restitution is a Collateral Consequence; Insured Losses play no part in Ordering Restitution.

State v. Tuialii (ICA June 30, 2009)

Background. Tuialii was charged with theft in the first degree (HRS § 708-839.5(1)(a)) based on an alleged transfer of about $76,000 from his employer's account to his personal account. Tuialii pleaded no contest. The no-contest plea form stated that various penalties, including restitution, could be imposed by the court. The circuit court, however, did not mention restitution during his change-of-plea colloquy. At his sentencing, the circuit court, upon the State's recommendation, ordered that Tuialii pay full restitution. The circuit court entered a free-standing order of restitution. Tuialii filed a motion pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 35 on the grounds that he did not change his plea knowingly, voluntarily, and intelligently. The motion was denied and Tuialii appealed.

No Rule 40 Petition, no Remand for Withdrawal. Tuialii argued that because the circuit court failed to mention restitution during his change-of-plea colloquy, he should be permitted to withdraw his no-contest plea. A motion to withdraw a guilty or no-contest plea may be made before the sentence is imposed or no later than 10 days after the sentence is imposed. HRPP Rule 32(d). "At any later time, a defendant seeking to withdraw a plea . . . may do so only by petition pursuant to Rule 40[.]" Id. According to the ICA, Tuialii did not move to withdraw his plea within ten days after sentencing and, thus, was required to bring an HRPP Rule 40 petition. He did not. Instead he brought an HRPP Rule 35 petition. The ICA denied remand for withdrawal of his no-contest plea.

Colloquy need not Include Restitution. The ICA held that the circuit court did not err in omitting from its change-of-plea colloquy the possibility of restitution. The court must advise the defendant of the maximum penalty provided by the law and the maximum extended term of imprisonment. HRPP Rule 11(c). HRPP Rule 11 does not require notice of restitution. The ICA also pointed out that Tuialii's plea form stated that he restitution could be imposed and that Tuialii confirmed that he read the form carefully and discussed it with his attorney.

The ICA also acknowledged that jurisdictions are split on the issue of whether restitution must be part of the change-of-plea colloquy. The ICA sided with those places that consider restitution a collateral consequence (rather than a direct consequence) of a guilty or no-contest plea that need not be part of the change-of-plea colloquy. The ICA explained that, under Hawai'i law, restitution is a "quasi-civil" compensatory sanction that is distinguished from a punitive objective like a fine. State v. Gaylord, 78 Hawai'i 127, 150-54, 890 P.2d 1167, 1190-94 (1995).

So does "quasi-civil" mean Collateral Consequence? Courts do not need to address every consequence of a defendant's changed plea. State v. Nguyen, 81 Hawai'i 279, 288, 916 P.2d 689, 698 (1996). But they must address "direct consequences" that have "a definite, immediate, and largely automatic effect on [the] defendant's punishment." Id. Collateral consequences, on the other hand, do not need to be addressed. These include things like the loss of civil rights, driver's license, or the right to possess a firearm. Id. The Hawai'i Supreme Court explained that these are collateral consequences because "they are peculiar to the individual and generally result from the actions taken by agencies the court does not control." Id. The ICA held that restitution is a "collateral consequence" because restitution is a "quasi-civil" sanction and not a fine that advances punitive objectives. State v. Gaylord, 78 Hawai'i 127, 150-54, 890 P.2d 1167, 1190-94 (1995). Has the ICA characterized sanctions with punitive objectives (e.g. fines and prison) with direct consequences? Does that mean that anything else is collateral? And so does that mean that restitution has no "definite, immediate, and largely automatic effect on [the] defendant's punishment?" Apparently so.

Restitution Statute Covers Amounts that were Indemnified by Insurance Companies. The sentencing court must "order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant's offense when requested by the victim." HRS § 706-646(2). Restitution is a "dollar amount that is sufficient to reimburse any victim fully for losses, including but not limited to [f]ull value of stolen or damaged property[.]" HRS § 706-646(3)(a). The ICA rejected Tuialii's claim that restitution was limited to the amount that was not covered by his employer's insurance company. The ICA explained that it is undisputed that Tuialii stole over $76,000 from his employer. This, according to the ICA, constitutes a "loss" under the restitution statute. The ICA noted that deducting the covered amount from the "loss" would be creating an exemption that is not in the restitution statute. Contra HRS § 706-646(4).

Insured Amount is not Reduced from the Restitution Award. Looking to courts of other jurisdiction, the ICA held that indemnification by an insurance company does not affect the amount in restitution a defendant must pay. The ICA explained that repayment of the full amount that the defendant stole or damaged "furthers the rehabilitative purposes of HRS § 706-646 to the greatest extend possible. . . . The interests of justice would not be served by allowing a thief to retain or otherwise benefit from the spoils of his crime because he picked a victim who was prudent enough to have obtained insurance."

But what about a Windfall? The ICA stated that it was "confident that legal or equitable principles, properly raised, will preclude any double recovery against Tuialii in a civil action or any unjust enrichment of either [the employer] or its insurer." After all, when the insurer pays a claim for damages caused by the wrongdoer, the insurer "is entitled to be subrogated to the insured's rights against such party." State Farm Fire and Casualty Co. v. Pacific Rent-All, Inc., 90 Hawai'i 315, 328, 978 P.2d 753, 766 (1999). The ICA also noted that a court in a criminal case "need not sort out insurance indemnities, subrogation rights, and/or other potential civil law implications before ordering a thief or other criminal to repay his [or her] victim under the criminal restitution statute."