ICA Finds Middle Ground Between Mandatory and Directory Deadlines

Styke v. Sotelo (ICA March 31, 2010)

Background. Styke had a fight with her boyfriend, Sotelo. Sotelo was prosecuted. Styke filed an ex parte petition for a temporary restraining order (TRO) against Sotelo. The motion was granted for 90 days on April 2, 2007 with an expiration date on July 3, 2007. The initial show-cause hearing was set for April 12, 2007. The hearing, however, was continued three times. The first continuance went from April 12 to April 19 because Styke was in the hospital. On April 19, the family court judge, Judge Bissen, recused himself because he recognized Styke and "did not have a positive view" of her. Sotelo moved to dismiss the TRO. That was denied and the hearing was continued a 2d time to April 26 before Judge Geronimo Valdriz. On April 26, Judge Valdriz denied Sotelo's renewed motion to dismiss and Judge Valdriz realized he presided over the preliminary hearing in Sotelo's prosecution and recused himself. The hearing was continued a 3d and final time to May 3, before Judge Keith Tanaka. At that hearing, the family court granted Sotelo's motion to dismiss based on "the 15-day rule." Styke appealed.

The Fifteen-day Rule . . . A TRO cannot last longer than 90 days. HRS § 586-5(a). "On the earliest date that the business of the court will permit, but no later than fifteen days from the date the temporary restraining order is granted, the court . . . shall hold a hearing on the application requiring cause to be shown why the order should not continue." HRS § 586-5(b). If service is not effected, the family court may set a new hearing date within the TRO period. Id. "All parties shall be present at the hearing[.]"

"Shall" Doesn't Always mean must. The ICA rejected Sotelo's interpretation that the court "shall hold a hearing" within fifteen days from the granting of the TRO. "It is well-established that, where a statute contains the word 'shall,' the provision generally will be construed as mandatory." Malahoff v. Saito, 111 Hawai'i 168, 191, 140 P.3d 401, 424 (2006). However, that is not always the case. There are some circumstances where "shall" is merely directory (i.e., not mandatory). Shall is non-mandatory "when a statute's purpose confutes the probability of a compulsory statutory design." Narmore v. Kawafuchi, 112 Hawai'i 69, 83, 143 P.3d 1271, 1285 (2006). It is also non-mandatory when "unjust consequences result" or "when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction." Id.

When the statute addresses deadlines, the rule is formulated differently:

[A] statute specifying a time within which public officials are required to perform an act is directory unless the statute denies the exercise of power after such time, or the nature of the act or the statutory language indicates that the time was intended to be a limitation. In evaluating whether a provision is to be accorded directory or mandatory effect, the objective of the court is to ascertain the legislative intent.

Malahoff, 111 Hawai'i at 192, 140 P.3d at 425. The ICA also quoted Perry v. Planning Comm'n of Hawai'i County, 62 Haw. 666, 676, 619 P.2d 95, 103 (1980):

Seemingly absolute time periods for administrative action . . . are often considered mere guides for the conduct of business with dispatch and for orderly procedure. They have generally been characterized as directory, unless time is of the essence of the act required, the statute contains negative language denying the exercise of authority beyond the period prescribed for action, or a disregard of the relevant provision would injuriously affect public interests or private rights.

Id. at 676, 619 P.2d at 103. And in determining whether a "shall" is mandatory or directory, the court must "the intention of the legislature must be ascertained." Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 617, 585 P.2d 1265, 1269 (1978).

The Fifteen-day rule for Show-Cause Hearings is Directory. The ICA concluded that the 15-day rule for show-cause hearings in HRS § 586-5(b) was directory. According to the ICA, about any consequences that may result from noncompliance with the 15-day rule. There is no express language stating that the TRO dissolves if no hearing is brought within fifteen days of its issuance. Moreover, it does not deny the exercise of the family court's power in the event of noncompliance. In fact, the statute expressly allows the family court to schedule a hearing beyond the fifteen days in the event of insufficient service.

The ICA also looked to the legislative history. According to the ICA, the statutes for TROs and protective orders from domestic abuse were intended to protect abused family or household members and streamline the procedures to obtain a TRO. See Coyle v. Compton, 85 Hawai'i 197, 204-05, 940 P.2d 404, 411-12 (App. 1997). This is why the ICA rejected Sotelo's argument that Styke could just reapply for another TRO. It would undermine the purpose of streamlining the procedures for obtaining and issuing ex parte TROs.

Directory, yes, but not "Permissive." The ICA stated that even though the 15-day rule was directory, "that does not mean that a court is free to disregard the provision. The ICA noted that the rule is directory to the extent that an automatic dismissal is not required. According to the ICA, this 15-day rule "is not permissive, and the family court is not free to follow the provision or not as the court chooses." Instead, the ICA held that the family court "is obligated to hold a show-cause hearing on a TRO within fifteen days from the date the TRO is granted (where service has been effected) unless there is a substantial reason amounting to good cause for a delay." See Shaw v. Packard, 886 A.2d 1287, 1289-90 (Me. 2005).

Two Recusals and Hospitalization were "Substantial Reasons." In applying the new standard, the ICA held that the recusals of the judges and the hospitalization of one of the parties were "substantial reasons" for going beyond the 15-day rule. After all, the parties "shall be present" at the show-cause hearing, HRS § 586-5(b), and "an impartial judge is required to insure a fair trial." State v. Silva, 78 Hawai'i 115, 117, 890 P.2d 702, 704 (App. 1995) overruled on other grounds by Tachibana v. State, 79 Hawai'i 226, 235 n. 5, 900 P.2d 1293, 1320 n. 5 (1993).

What about the "Shall" that all Parties be Present? The ICA held that the "shall" in the 15-day rule was not mandatory, but there must be compliance unless there was a "substantial reason" for the delay. The ICA pointed out that the absence of the one of the parties was among the "substantial reasons" allowing a violation of the 15-day rule. The ICA turned to, of all things, HRS § 586-5(b), which states that the parties "shall be present." What about that "shall"? Is that directory too? Apparently not.

The Standard in Determining a Mandatory "Shall" may Depend on Whether the Statute is a Deadline. The word "shall" in a statute does not always mean that it is mandatory. That much is clear. But it seems that there are different ways to approach the interpretation of the word. At first, the general rule seems to be that "shall" is mandatory. Malahoff v. Saito, 111 Hawai'i 168, 191, 140 P.3d 401, 424 (2006). Then there are three circumstances in which the "shall" is directory as stated in Namore v. Kawafuchi, 112 Hawai'i 69, 83, 143 P.3d 1271, 1285 (2006).

That all seems to change when the "shall" is for a deadline. In those cases, the general rule may be that it is a mere "guide." Perry v. Planning Comm'n of Hawaii County, 62 Haw. 666, 676, 619 P.2d 95, 103 (1980). A more recent articulation is this:

In general, a statute is directory rather than mandatory if the provisions of the statute do not relate to the essence of the thing to be done or where no substantial rights depend on compliance with the particular provisions and no injury can result from ignoring them.

Coon v. City and County of Honolulu, 98 Hawai'i 233, 255, 47 P.3d 348, 370 (2002). The ICA relied on this formulation here. But earlier in Coon, however, the HSC stated that "where the language of a statute is plain and unambiguous that a specific time provision must be met, it is mandatory and not merely directory." Id. at 255, 47 P.3d at 370. And to make matters even more confusing, you have Tataii v. Cronin, 119 Hawai'i 337, 339, 198 P.3d 124, 126 (2008) (deadline was mandatory as to the day a complaint must be filed, but the time to file a complaint on that day--by 4:30 p.m.--was directory).

The case of the two "Shalls." The confusion in the standards and general rules can be illustrated in this statute. There are two shalls in HRS § 586-5(b). The first is the fifteen-day rule. The show-cause hearing "shall" be convened no later than 15 days after the issuance of the properly-served TRO. The ICA held that this "shall" is directory, but not permissive. Because it's a deadline, the ICA appeared to have used the standard from Coon and Perry. But then the statute also states that "[a]ll parties shall" attend the hearing. Which general rule applies then? Sorting this out may take time.


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