Saturday, July 31, 2010

Awards of fees and Costs in Otherwise moot Cases still Subject to Appellate Review

Queen Emma Foundation v. Tatibouet (ICA July 29, 2010)

Background. The Queen Emma Foundation leased hotel property in Waikiki to Tatibouet. The lease stated that if Tatibouet wanted to covert the property into a condominium, the Foundation would have to be somehow involved in the process. Tatibouet went ahead in the condominium process with Coral Reef Development as the developer. The Foundation learned about the selling of condominium units in the newspaper and soon brought an action for declaratory and injunctive relief based on the Foundation's interpretation of the lease. The circuit court interpreted the lease and ruled for the Foundation. The circuit court also found the Foundation to be a "prevailing party" and awarded $534,708.73 in attorney's fees and costs. Tatibouet appealed. During the appeal, Tatibouet filed for bankruptcy and lost his lease over the property and the Coral Reef Development was terminated. The Foundation filed before the ICA a motion to dismiss the appeal on the grounds that the appeal was moot.

Appeal on the Merits is Moot Because a Party lost all Interests in the Property. Courts do "not have jurisdiction to decide abstract propositions of law or moot cases." Lathrop v. Sakatani, 111 Hawai'i 307, 312, 141 P.3d 480, 485 (206). The "suit must remain alive throughout the course of litigation to the moment of final appellate disposition to escape the mootness bar." Kona Old Hawaiian Trails Group v. Lyman, 69 Haw. 81, 87, 734 P.2d 161, 165 (1987). The ICA held that this case was moot and granted the Foundation's motion. Tatibouet had no leasehold interest in the property and Coral Reef Development has been terminated. They have no "present adverse interest vis-à-vis [t]he Foundation with respect to the interpretation of the" lease. Any review of the circuit court's interpretation would, according to the ICA, be an advisory opinion on abstract propositions of law.

Attorneys' Fees Challenge does not Allow Appellate Review of the Merits. The ICA rejected Tatibouet's argument that his challenge to the fees and costs award allowed full review of the case. According to the ICA, there are no Hawai'i cases addressing the issue of whether a challenge to the award of fees and costs keeps an otherwise moot controversy alive. After reviewing decisions from primarily federal jurisdictions, the ICA held that an appeal from the award of attorney's fees and costs does not save the underlying controversy from becoming moot. Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990); Center for Biological Diversity v. Marina Point Development Co., 566 F.3d 794, 805-806 (9th Cir. 2009); Ott v. Boston Edison Co., 602 N.E.2d 566, 568 (Mass. 1992); Dept. of Education v. Rodarte, 127 F.Supp.2d 1103, 1113-14 (D. Haw. 2000).

ICA had "Equitable Jurisdiction" to Review "Ancillary" Issue of Attorney's fees and Costs. The ICA adopted a federal approach. "Although a claim for attorney's fees does not preserve a case which has otherwise become moot on appeal, . . . the question of attorney's fees is ancillary to the underlying action and survives independently under the Court's equitable jurisdiction." United States v. Ford, 650 F.2d 1141, 1144 (9th Cir. 1981). According to the ICA, because the underlying matter is moot and cannot be disturbed to determine whether fees were warranted, the reviewing court must consider whether the recipient of the fees and costs award can be considered the prevailing party "without regard to whether we think the . . . court's decision on the underlying merits is correct." Bishop v. Committee on Professional Ethics and Conduct of the Iowa State Bar, 686 F.2d 1278, 1290 (8th Cir. 1982).

The ICA examined whether the Foundation was a "prevailing party" without inquiring into the correctness of the circuit court's ruling on the merits. A prevailing party "prevails on the disputed main issue, even though not to the extent of [the party's] original contention[.]" Food Pantry, Ltd. v. Waikiki Business Plaza, Inc., 58 Haw. 606, 620, 575 P.2d 869, 879 (1978); see also HRS §607-14. According to the ICA, the Foundation is the prevailing party. It sought a declaratory judgment to stop the condominiumizing of the Waikiki property. The circuit court adopted the Foundation's interpretation of the lease and got its declaratory and injunctive relief. Without reviewing the merits of the circuit court's ruling, it was obvious to the ICA that the Foundation was the prevailing party and the ICA affirmed the circuit court's award of fees and costs.

A new Standard of Review. When a case is moot, the appellate court has no jurisdiction. But even though a case is moot, the court has "equitable jurisdiction" to review a disputed award of fees and costs. That review appears to be limited to the issue of whether the recipient of the award was the prevailing party. In answering this question, it appears that the reviewing court must assume that the decision on the merits is correct. This case was a particularly easy one. But in the future it may not be so simple. There are a number of cases where the prevailing party is unclear.

Is the case Really moot? Is this Semantics? The ICA first held that the case was moot because Tatibouet and Coral Reef Developers have no interests left in the property. If the case is moot, then there is no active controversy and no jurisdiction to hear the case on appeal. Nothing is alive for litigation and one of the parties has absolutely no interest in the case. An award of attorney's fees, however, must be paid. That was Tatibouet's argument. He had a financial interest in the case because he still has half a million dollars in fees and costs to pay. Doesn't that mean that the case is still alive?

Well, sort of. The standard incorporated from the federal courts allows limited review of whether the award based on the appellate court's "equitable jurisdiction." It allows limited review of the only part of the case that is still viable. Perhaps this is a necessary distinction. It suggests that when a case is truly not moot, everything--including the award for fees and costs--is up for review. When the only thing that is still viable is the fees and costs itself, however, the court has no jurisdiction to hear the merits and has only "equitable jurisdiction" to examine the award.

Does "Equitable Jurisdiction" Allow Review of the Amount of the Award? The ICA affirmed the award without examining if the amount was reasonable. Fees must be reasonable. Blair v. Ing, 96 Hawai'i 327, 328, 31 P.3d 184, 185 (2001); HRS § 607-14. Does the court have the equitable jurisdiction to review the reasonableness of the amount? In other words, assuming that the circuit court's ruling on the merits is correct, is the half-million dollar award an unreasonable amount? Is it implicitly reasonable or is it not subject to review? That was never addressed here. Nonetheless, it would seem that if the appellate court can examine whether an award for an otherwise moot case should have been given at all, it can certainly examine whether that awarded amount was reasonable. That issue must be resolved for another day.

Saturday, July 24, 2010

Creating a False Impression of Peacefulness Opens door for Prior bad acts

State v. Brooks (ICA July 22, 2010)

Background. Brooks was charged with kidnapping in the first degree, robbery in the first degree, and unauthorized control of a propelled vehicle. At trial, Tuan Vo testified he picked up Barbara Pichay and William Brooks in his taxi van. After driving around for a bit, they spotted Dennis. William got out the van and talked to Dennis. They called each other brothers and Vo saw them fist bump. Dennis got into the van and sat in the front seat while William and Barbara sat in the backseat. They told Vo to go to Kalihi. When they got there, William put his arm around Vo's neck, pulled Vo against the seat, and held a knife to Vo. The passengers took all of Vo's money and possessions. William pulled Vo into the back seat and Dennis got into the driver's seat. Dennis drove to Kaneohe, then Pearl Harbor, and then to Waianae. On the way to Waianae, Dennis and William switched places. Dennis, according to Vo, stomped on Vo's head and kicked and threatened him. When they got to Waianae, they let Vo out and took off in the van. The police showed up about ten minutes later.

Dennis testified that William is his older brother and has a history of violence, drug abuse, and gang affiliation. Dennis testified that when William grabbed Vo, Dennis feared his brother. He started driving, but he didn't know where to go. He saw that William had the knife to Vo's neck. Dennis testified that because of "my knowledge of my brother's background, I didn't know what was going to happen next." Dennis denied hurting or taking anything from Vo and he testified that when it was all over, he got out of the van and left.

Before cross-examination, the circuit court concluded that Dennis opened the door because Dennis spoke about his brother's background and gave the jury the "wrong impression." The circuit court pointed out that at trial, Dennis had a hair cut, wore glasses, and spoke with a meek voice. On cross-examination the prosecutor questioned Dennis about his prior robbery convictions involving knives and his history of violence. Dennis also admitted that he was not a peaceful person. The circuit court later explained that even though Dennis "did not specifically come out and say, I don't have any prior violent felonies, or the like, by his words, demeanor and conduct he left het Court and the jury with a false impression, i.e., that he was a passive, helpless victim in relation to his brother."

The circuit court instructed the jury that it "must not use [evidence of Dennis' prior bad acts] to determine that [Dennis] is a person of bad character . . . Such evidence may be considered by you only on the issue of [Dennis'] motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, absence of mistake or accident or to rebut the suggestion or inference that [Dennis] is a peaceful and nonviolent or a helpless victim and for no other purpose."

The jury found Dennis guilty as charged. He appealed.

Prior Bad Acts Rebut Defendant's Impression of Peacefulness and Non-Violence Pursuant to HRE Rule 404(b). The ICA began its analysis with HRE Rule 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.

This is not an exhaustive list. State v. Arakawa, 101 Hawai'i 26, 34, 1 P.3d 537, 545 (App. 202). "[A]ny purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is not offered solely to prove character." State v. Clark, 83 Hawai'i 289, 300-01, 926 P.2d 194, 205-06 (1996). The ICA then turned to factors to determine if 404(b) evidence should be admitted:

the strength of the evidence [for the prior bad act], the similarities between the bad acts and [the charged offense], the time that has elapsed between the bad acts [and the charged offense], the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence will probably rouse the jury to overmastering hostility.

State v. Stenger, 114 Hawai'i 162, 172, 158 P.3d 280, 290 (App. 2006).

Applying Stenger, There was no Error in Allowing the Prior bad acts. The first factor cut in favor for allowing the evidence in. The evidence of the prior bad act was a conviction and that was strong. The second factor also cuts for admission: the prior bad acts were robberies involving a knife. The charged offenses involved the exact same thing. The third factor--the time between the bad act and the charged offense--cut against admission because the bad acts took place more than ten years before the charged offense.

The fourth factor--the necessity for the evidence--favored admission. The ICA agreed with the circuit court that the evidence was needed to "counterbalance the impression . . . Dennis created [of himself] at trial." According to the ICA, it was clear that Dennis admitted that he was not a peaceful and non-violent person (sorry for the double negative), but he nonetheless "intend[ed] to impress upon the jury that he was peaceful--whereas William was not." The ICA did not examine the fifth factor--the efficacy of alternative proof. However, for the final factor--the probability of rousing the jury's hostility--the ICA recognized that it could prejudicially effect the jury. See State v. Murray, 116 Hawai'i 3, 20, 169 P.3d 955, 972 (2007). The ICA commented that this was "not an easy issue to resolve" but it could not hold that the circuit court abused its discretion in allowing the evidence. Moreover, there was an instruction that limited the evidence to be evidence that would "rebut the suggestion or inference that [Dennis] is a peaceful and nonviolent or a helpless victim and for no other purpose" and juries are presumed to have followed their instructions. State v. Kupihea, 80 Hawai'i 307, 317-18, 909 P.2d 1122, 1132, 33 (1996).

Is Evidence to Rebut Defendant's Impression that he was Peaceful and Non-Violent Proper 404(b) Evidence? What About 404(a)? Under HRE Rule 404(b), evidence of a prior bad act cannot be used to "prove the character of a person to show action in conformity therewith." HRE Rule 404(b). It can be used to prove something else, like motive, state of mind, intent, or whatever. Here, the ICA held that these prior bad acts were used to rebut the impression that Dennis was a peaceful and non-violent person--and that was acceptable under HRE Rule 404(b). But what about 404(a)? That prohibits evidence of a person's character to prove action in conformity therewith unless that evidence is "of an accused offered by an accused, or by the prosecution to rebut the same[.]" HRE Rule 404(a)(1). See State v. Iosefa, 77 Hawai'i 177, 186 , 880 P.2d 1224, 1233 (App. 1994) (defendant's witness should have been permitted to testify about defendant's peacefulness and non-violence pursuant to HRE Rule 404(a)(1)). Isn't evidence of prior bad acts used to rebut the accused's peacefulness or non-violence just that? Would that place us in HRE Rule 404(a)(1) rather than HRE Rule 404(b)?

What is the difference between 404(a) exceptions and 404(b) exceptions anyway? 404(a) exceptions recognize that the evidence is character evidence used show propensity. HRE Rule 404(b) does not. That may not be important though because they both are admissible in this case. But if it's 404(b), then in a criminal case there must be reasonable notice of the prior bad act. 404(a) needs no notice. So if the prosecution did not provide notice in this case it cannot come in as 404(b) evidence. If it was 404(a), then it would not matter.

The Limiting Instruction was just fine. The ICA rejected Dennis' arguments that the limiting instruction was insufficient. First, it rejected Dennis' contention that giving the instructions constituted a prejudicial delay because Dennis did not object at the time the prior convictions came in during the trial and the fact that no other evidence was presented after Dennis' cross-examination, there was no prejudice. The ICA also did not find the instruction itself prejudicial.

How to Avoid this Problem . . . When evidence comes in for a limited purpose or applying to a certain party, "the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." HRE Rule 105. Dennis did not request the limiting instruction until the end of the evidence. The language is clear. The court must abide by the request and limit the evidence right then and there.

Instructions for Lesser-Included Offenses Should've been Included, but Error was Harmless. The ICA rejected Dennis' argument that instructions for the lesser-included offenses of robbery in the second degree and theft in the fourth degree. Those offenses are indeed less-included offenses to robbery in the first degree. State v. Arlt, 9 Haw. App. 263, 277, 833 P.2d 902, 910 (1992); State v. Mitsuda, 86 Hawai'i 37, 46, 947 P.2d 349, 358 (1997). And while these offenses should have been included, it is "harmless when the jury convicts the defendant of the charged offense or of an included offense greater than the included offense erroneously omitted from the instructions." State v. Haanio, 94 Hawai'i 405, 415-16, 16 P.3d 246, 156-57 (2001).

Sufficient Evidence for the three Charges. Finally, the ICA held that there was sufficient evidence supporting the jury's verdict. Viewed in the light most favorable to the prosecution, there was ample evidence supporting the verdict. See State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998).

Sunday, July 11, 2010

When a Right of Action Derives from the Constitution . . .

County of Hawai'i v. Ala Loop Homeowners et al. (HSC July 9, 2010)

Background. Waiola Waters of Life Charter School, a "new century" charter school pursuant to HRS chapter 302A, acquired a 28-acre farm on Ala Loop Road near Kurtistown on the Big Island. Waiola intended on keeping the farm, but was also going to use it as a campus. Concerned residents formed the Ala Loop Association wrote to the County. The County and the State took the position that HRS § 302A-1184 exempted Waiola from state zoning laws in HRS 205, but did not exempt county zoning laws. Ala Loop argued that a special use permit pursuant to HRS § 205-A, the Land Use Commission rules, and county zoning laws were required. The County filed a complaint for declaratory relief against Ala Loop and Waiola to determine the applicability of state and county zoning laws. Ala Loop filed a counter claim against the County and a cross-claim against Waiola.

Waiola tried to get the Attorney General's Office to represent them, but the AG refused. Waiola, having no funds to defend the lawsuits, requested an extension to file an answer or responsive pleading, which was granted over Ala Loop's objection. The AG still refused to represent Waiola. Waiola then sought a stay of proceedings until the AG represented it. Ala Loop again objected and requested default judgment. The motion for stay was denied and default was entered against Waiola. The AG then agreed to represent Waiola and filed an answer and later a motion to set aside the default judgment. The motion was denied.

The circuit court proceeded with the declaratory judgment action and concluded that Waiola was subject to state land use laws notwithstanding HRS § 302A-1184. The circuit court also enjoined Waiola from several school-related activities absent a special use permit. Waiola, however, could bus students once and week and students could engage in agricultural activities like testing and cultivating crops. Ala Loop sought fees and costs and was awarded $3,878.64 in costs against Waiola. Waiola appealed on the grounds that Ala Loop had no standing to enforce state land use laws. The ICA, relying on Pono v. Molokai Ranch, Ltd., 119 Hawai'i 164, 194 P.3d 1126 (App. 2008). Ala Loop applied for certiorari. Waiola opposed on the grounds that the case was moot.

If it Ain't moot, fix it. "A case is moot if it has lost its character as a present, live controversy of the kind that must exist if courts are to avoid advisory opinions on abstract propositions of law. " Kona Old Hawaiian Trails Group v. Lyman, 69 Haw. 81, 87, 734 P.2d 161, 165 (1987). Put differently, "[a] case is moot if the reviewing court can no longer grant effective relief." Kaho'ohanohano v. State, 114 Hawai'i 302, 332, 162 P.3d 696, 726 (2007). Here, the case was not moot. According to the HSC, even though Waiola is not the current owner, it stores computers on the property and it still intends on starting a school somewhere. It is possible that Waiola could obtain permission from the current owner with a lease or some other form to conduct classes on the property.

And even if it was moot, the Public-Interest Exception Applies. Whether the public-interest exception to the mootness doctrine applies hinges on three factors (1) the public or private nature of the question presented, (2) "the desirability of an authoritative determination for future guidance of public officers, and (3) the likelihood of future recurrence of the question." Doe v. Doe, 116 Hawai'i 323, 327, 172 P.3d 1067, 1071 (2007). According to the HSC, all three prongs are met. First, even though the dispute between Waiola and Ala Loop is between two private parties, it is public in nature because the ICA's ruling that there was no private enforcement of HRS chapter 205 "inject[ed] a degree of public concern[.]" Id. Second, the question is whether private parties can enforce state land use laws that certain public agencies are duty-bound to uphold and enforce; answering this question will provide guidance for those public officials. Third, it is likely that this issue--whether private citizens can enforce HRS chapter 205--will come up in the future.

An Interesting Footnote: Right of Action v. Standing. The question here is whether Ala Loop has a private right of action to enforce state land use laws. The HSC, in a footnote, made it clear that a private right of action is not the same thing as standing. "The private of action inquiry focuses on the question of whether any private party can enforce a statute, while the standing inquiry focuses on whether a particular private party is an appropriate plaintiff."

The Trouble with Pono. In Pono, the ICA applied a test to determine whether there was a private right of action for enforcing HRS chapter 205. The test was comprised of three questions:

First, is the plaintiff one of the class for whose especial benefit the statute was enacted--that is, does the statute create a right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?

Pono, 119 Hawai'i at 185, 194 P.3d at 1147 (emphasis, citations, brackets, ellipsis, and quotation marks omitted.). This test derives from Cort v. Ash, 422 U.S. 66 (1975), Reliable Collection Agency v. Cole, 59 Haw. 503, 584 P.2d 107 (1978), and Rees v. Carlisle, 113 Hawai'i 446, 153 P.3d 1131 (2007), and is known as the Rees/Reliable test.

The HSC held that the Rees/Reliable "is not applicable when the state constitution creates the private right of action." The HSC noted that Reliable examined whether the legislature created a private cause of action when it enacted statutes related to the unauthorized practice of law. Reliable, 59 Haw. at 506, 584 P.2d at 109. In Rees, the issue was whether a county ordinance created a private right of action. Rees, 113 Hawai'i at 456-459, 153 P.3d 1141-1144. This is not the proper test for determining whether a party has a private cause of action pursuant to the state constitution. The HSC also held that the ICA erred in applying the Rees/Reliable test in this case and in Pono. A different analysis applies.

Introducing the test for Determining when the Constitution Confers a Private Right to Enforce Statutes. The Hawai'i Constitution affords people the right to a clean and healthful environment:

Each person has the right to a clean and healthful environment . . . . Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.

Haw. Const. Art. XI, Sec. 9. In order to determine whether this provision confers a private right of action to enforce HRS chapter 205, the HSC posed three questions: (1) Is the law the party seeks to enforce (e.g. HRS chapter 205) a law "relating to environmental quality"? (2) Is the constitutional provision self-executing (i.e. does the legislature need to promulgate enabling statutes before the ability to enforce this right be realized)? (3) If it is self-executing, has the legislature imposed "reasonable limitations and regulation" that would prevent a party from enforcing the right?

Is this a test? Are these three "questions" a true test? How would it look in other cases? First, the HSC appears to determine if the law the party seeks to enforce falls within the scope of the constitutionally-granted right to enforce. Second, is whether the constitutional provision is self-executing. This raises an interesting point. What if it was not self-executing, but the legislature promulgated enabling legislation? Would that put us in the Ala Loop scenario or would we have to work off of the enabling legislation--thereby putting us back in the Rees/Reliable test? Who knows. Third, if it is self-executing, are there "reasonable limitations and regulation"? That seems to come from the language of the constitutional provision itself in this case and--if this is a test at all--it's unclear whether that last question would apply to other constitutional provisions. All of this is new and we will have to wait for future cases to clear this up.

Applying the new test (or, if it's not a test, Answering the Questions). First, the HSC held that HRS chapter 205 relates to the conservation, protection, and enhancement of natural resources and is an environmental quality law "within the scope [of] the enforcement right established" by the constitutional provision. The HSC based its conclusion by examining the legislative history of HRS chapter 205, reviewing the stated purposes of the laws, and examining the language of the statutes themselves and HRS § 607-25, which allows private parties to seek attorneys fees and costs for parties who develop without obtaining their required permits or approvals.

Second, Haw. Const. Art. XI, Sec. 9 is self-executing. A provision is self-executing when "it supplies a sufficient rule by means of which the right may be enjoyed and protected, or the duty imposed may be enforced[.]" State v. Rodrigues, 63 Haw. 412, 414, 629 P.2d 1111, 1113 (1981). It is "not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law." Id. The HSC, after reviewing a survey of cases and concluded that when determining whether the provision is self-executing, the court examines the language of the provision to see if enabling legislation is necessary; the phrase "as provided by law" is not dispositive. It cuts either way. See Rodrigues, 63 Haw. at 415, 629 P.2d at 1114; United Public Workers, AFSCME, Local 646, AFL-CIO v. Yogi, 101 Hawai'i 46, 51-53, 62 P.3d 189, 194-96 (2002). The court also reviews the history of the provision to determine if the framer's intent confirms the plain language analysis.

Third, because it was self-executing, the next issue was whether there were any "reasonable limitations and regulation" against potential litigants like Ala Loop. The HSC held there were none. The HSC rejected Waiola's argument that HRS § 205-12 precluded a private right of action by delegating the enforcement of the land use laws to the counties. The HSC explained that the limitation and regulation must be "reasonable" and cannot completely abolish the private right of action. The HSC did not delve further into the matter and had no opinion as to whether Ala Loop exhausted its administrative remedies.

Default Judgment Should have been set Aside. "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside[.]" HRCP Rule 55(c). Defaults "are not favored[.]" Rearden Family Trust v. Wisenbaker, 101 Hawai'i 237, 254, 65 P.3d 1029, 1046 (2003). A motion to set aside a default should be set aside when "the court finds (1) that the nonfaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a wilful act." BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 76, 549 P.2d 1147, 1150 (1976). The HSC also noted that there is a distinction between motions to set aside default entries, which courts have more flexibility in granting, than motions to set aside default judgments, which call for the requirements of HRCP Rule 60. Id.

According to the HSC, this was not a typical case where relief from default is denied. Waiola wanted to defend in the cross-claim, "tendered the defense to the AG within a few days of being served, and continued to aggressively pursue representation by the AG thereafter, culminating in the filing of the petition for writ of mandamus." The record also showed that Waiola was under a lot of pressure to find an attorney and could not afford one. Ultimately, the HSC held that the circuit court abused its discretion in denying Waiola's motion to set aside the entry of default.

Justice Acoba's Concurrence and Dissent. Justice Acoba agreed that Ala Loop had a right to enforce this particular statute, but did not agree with the majority's analysis. He simply would have held that Ala Loop had standing to enforce HRS chapter 205. There was no need, according to Justice Acoba, to examine whether Ala Loop had a private right of action and, even if it did have to, the majority was wrong. Justice Acoba believed that while section 9 of Article XI affords people with the "right to a clean and healthful environment," that right is "defined by laws relating to environmental quality" and are "subject to reasonable limitations and regulation as provided by law." Justice Acoba wrote that the majority's construction of the provision was contrary to the framers' intent and that there was no indication that the provision was self-executing. Justice Acoba also took issue with the majority's reliance on legislative reports written after the 1978 constitutional convention which created Art. XI, Sec. 9. See United States v. Texas, 507 U.S. 529, 535 (1993) ("subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.").

According to Justice Acoba, Ala Loop have a right to enforce HRS § 205-6 as adjoining landowners. Mahuiki v. Planning Comm'n, 65 Haw. 506, 515, 654 P.2d 874, 880 (1982); E. Diamond Head Ass'n v. Zoning Bd. of Appeals of City and County of Honolulu, 52 Haw. 518, 521-22, 479 P.2d 796, 798 (1971); Dalton v. City and County of Honolulu, 51 Haw. 400, 403, 462 P.2d 199, 202 (1969); and Town v. Land Use Comm'n, 55 Haw. 538, 543-44, 524 P.2d 84, 88 (1974). They also had standing to bring a declaratory judgment action.

Justice Acoba also disagreed that the circuit court abused its discretion in denying Waiola's motion to set aside the default entry.

Saturday, July 3, 2010

Hawai'i Courthouse Photo Contest

Hawai'i Courthouse Photo Contest. Aloha, from Hawai'i Legal News. We are happy to announce our first photograph contest. Please submit your photograph of any Hawai'i courthouse (it does not have to be an active courthouse). Winners will be featured in the 2011 Hawai'i Legal News Calendar. Submit your photograph today!


1. Hawai'i Legal News is looking for compelling, original pictures that feature active and inactive courthouses throughout the State of Hawai'i. This includes any building that held court--be it appellate or trial court--for the State of Hawai'i, the federal government, the Territory of Hawai'i, the Provisional Government, the Republic of Hawai'i, or the Hawaiian Kingdom. Pictures can feature the exterior of the building or the interior courthouse. We will also accept the sites for particularly interesting or famous Congressional or legislative hearings or agency hearings.

2. All entries must be submitted by email. Please send your submission to:

3. Please include your name, contact information, the name of the courthouse, the location, district, and whether the courthouse is still functioning (e.g. Wahiawa District Courthouse, Wahiawa, O'ahu, inactive.). If you have any information about the courthouse, be sure to include that too.

4. Pictures can be color or black and white. Photoshop or other software manipulation is permissible, but that must be disclosed.

5. Entries must be submitted by the original photographer. Do not submit a photo taken by someone other than yourself. You must be the sole owner of the copyright of any image submitted. Your submission of the photo and the entry form is your guarantee that you are the author and copyright holder of the photograph.

6. By entering your photograph, you agree to have your image displayed either on Hawai'i Legal News' website and any publications (e.g. calendars, stationary, etc.) issued by Hawai'i Legal News. Winners will be contacted before publication.

7. Images will not be returned.

8. By participating in this contest, you agree to release and hold harmless Hawai'i Legal News and its editor, Benjamin Lowenthal from any and all damages, injuries, claims, causes of action, or losses of any kind resulting from your participation in the contest, including infringement of copyright and intellectual property rights. Hawai'i Legal News and its editor, Benjamin Lowenthal, assume no responsibility or liability for any damages, injuries, claims, causes of action, or losses of any kind arising in whole or in part from this contest.

Friday, July 2, 2010

Not Every Violation Belongs on a Traffic Abstract

State v. Cooley (ICA June 30, 2010)

Background. The State charged Cooley with possession of an alcoholic beverage at Waialae Beach Park, a public area. Revised Ordinances of Honolulu § 40-1.2. The offense is a petty misdemeanor. ROH § 40-1.3. At his arraignment, the State moved to amend the charge to the consumption of an intoxicating liquor at a scenic look out, which is a violation. HRS § 291-3.3. The district court granted the motion and ordered Cooley to pay $27.00 in fees and fines. The violation appeared on Cooley's traffic record. Cooley filed a motion to correct the abstract of traffic record on the grounds that HRS § 291-3.3 was not a "moving violation." The district court denied the motion and concluded that Cooley "waived any defense that the consumption of the intoxicating liquor at the scenic lookout had to have arisen from the operation of a motor vehicle." Cooley filed a motion for reconsideration and requested a hearing. That too was denied. Cooley appealed.

Reviewing Traffic Abstracts part of the District Court's Inherent Authority. The ICA first concluded that the district court had jurisdiction to review Cooley's motion to correct the traffic record. According to the ICA, the district court's jurisdiction stemmed from HRS § 604-7(e), which gives the district court the power to not only issue judgments but to "do such other acts and take such other steps as may be necessary to carry into full effect the powers which are or shall be given them . . . for the promotion of justice in matters pending before them." Jurisdiction also came from the district court's inherent authority. See TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai'i 243, 265, 990 P.2d 713, 735 (1999) ("the trial court retains jurisdiction to determine matters collateral or incidental to the judgment."). The exercise of inherent powers are reviewed for an abuse of discretion. State v. Moriwake, 65 Haw. 47, 55-57, 647 P.2d 705, 711-713 (1982).

Consuming Liquor at a Scenic Outlook is not a "Moving Violation." Traffic abstracts record "moving violations and any convictions resulting therefrom, arising from the operation of a motor vehicle and any administrative license revocation[.]" HRS § 287-3(a). The term "moving violation" is not defined by the statute. "[O]rdinary meanings are attached to terms not given a statutory definition" allowing the court to consult with "legal or other well[-]accepted dictionaries . . . to determine the ordinary meanings of certain terms." State v. Chen, 77 Hawai'i 329, 337, 884 P.2d 392, 400 (App. 1994). The ICA turned to Black's Law Dictionary, which defined a moving violation as an "infraction of a traffic law while the vehicle is in motion." Black's Law Dictionary 1111 (9th ed. 2009).

Cooley admitted to violating HRS § 291-3.3(b), which stated that "[n]o persona shall consume any intoxicating liquor at any scenic lookout." This, according to the ICA, is "plain and unambiguous on its face: it prohibits the consumption of liquor at a 'scenic lookout.'" A "scenic lookout" includes "any area within or adjoining a public street, road, or highway which is intended for use by motorists as a stopping or parking area attendant to the enjoyment of the surrounding scenery or a view." HRS § 291-1. The ICA agreed with Cooley that the use of a motor vehicle is completely irrelevant to this kind of violation and is not a "moving violation" or any conviction arising from the "operation of a motor vehicle." The district court, according to the ICA, abused its discretion in denying Cooley's motion.

Cooley Didn't Waive his Right--Expressly or Impliedly--to Correct the Motion . . . The ICA also rejected the district court's conclusion that Cooley waived his argument by admitting to the offense. Waiver is the "intentional relinquishment of a known right, a voluntary relinquishment of rights, and the relinquishment or refusal to use a right." Coon v. City and County of Honolulu, 98 Hawai'i 233, 261, 47 P.3d 348, 376 (2002). Of course, before a valid waiver takes places, "there must have existed a right claimed to have been waived and the waiving party must have had knowledge, actual or constructive, of the existence of such a right at the time of the purported waiver." Id. Waiver can be express by a statement or agreement or reasonably inferred or implied from acts and conduct. Id.; Wilart Assocs. v. Kapiolani Plaza, Ltd., 7 Haw. App. 354, 359-360, 766 P.2d 1207, 1210-11 (1988).

The ICA held that Cooley did not waive his right to correct his traffic abstract. Nothing during the change of plea and sentencing suggested that Cooley intentionally relinquished that right or "that he had actual or constructive knowledge that his admission could lead to the violation appearing on his abstract."

. . . Admitting to the Violation Didn't Waive this Appeal Either. The ICA rejected the State's reliance on State v. Morin, 71 Haw. 159, 164, 785 P.2d 1316, 1319 (1990), which precludes defendants from contesting "any nonjurisdictional issues" once they entered a "no contest plea in exchange for the reduction and dismissal of charges against them[.]" According to the ICA, Morin is inapposite. Cooley admitted to a violation; the appeal was from the order denying his motion to correct the traffic abstract. He was not challenging the admission of the non-criminal violation with a motion to withdraw his admission.

A Direct Consequence Analysis Ahead? The district court did not discuss with Cooley that the violation might appear on his traffic record. That was one of the reasons why the ICA held that Cooley did not waive his right to challenge the traffic abstract after changing his plea. The ICA reasoned that Cooley had no knowledge that this offense would show up on his traffic abstract. The analogous situation is the placement of the Hawai'i Sex Offender Registry. If that was not discussed during the change of plea colloquy, then--like the placement of the violation on the traffic violation--the defendant has no "actual or constructive knowledge that his admission could lead to" appearing on the sex offender registry. It seems like we have a direct consequence of pleading no contest and being sentenced allowing the defendant to withdraw his or her no contest plea. See Foo v. State, 106 Hawai'i 102, 102 P.3d 346 (2004), State v. Nguyen, 81 Hawai'i 279, 916 P.2d 689 (1996), Kentucky v. Padilla, 559 U.S. ___, 130 S.Ct. 1473 (2010).

Editor's Note. This is Judge Ginoza's first published opinion.