Jurisdiction Hinges on the Statute, not the Rules

By Benjamin Lowenthal -

In re Tax Appeal of Aregger (ICA November 18, 2010)

Background. The Board of Taxation Review ruled on October 1, 2008, in favor of the Director of Taxation against the Areggers in an amount of $7,308.37. The Areggers filed a notice of appeal to the tax court on October 29, 2008. The certificate of service showed that a copy of the notice was mailed to the tax assessor. No copy was sent to the Director of Taxation. Notice of entry was filed by the clerk of the tax court on October 30. The notice was mailed to the Director. The Director challenged subject matter jurisdiction in his answer and later filed a motion to dismiss based on a lack of jurisdiction. The tax court granted the motion. The Areggers appealed.

Statutes Require Service on Director. Tax appeals are "properly commenced by the filing . . . of a written notice of appeal in the office of the tax appeal court within thirty days after the filing of the decision of the state board of review . . . and service of the notice of appeal on the director of taxation." HRS § 232-17. That did not happen here. The Director contends that because that did not happen here, there was no subject matter jurisdiction. The "failure to file a timely notice of appeal is a jurisdictional defect that can neither be waived by the parties nor disregarded by the court in the exercise of judicial discretion." Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986).

That "Shall" is Mandatory. The ICA agreed with the Director that the statute is mandatory rather than directory. HRS § 232-17 used to read that the taxpayer-appellant "shall also file a copy of the notice of appeal in the assessor's office[.]" The HSC held that that "shall" was directory and that noncompliance was not a jurisdictional defect. Namore v. Kawafuchi, 112 Hawai'i 69, 71, 82, 143 P.3d 1271, 1273, 1284 (2006). In response to Namore, the Legislature amended the statute to its current state. In light of this history, the ICA agreed with the Director that this current statute is mandatory. The legislative fix rendered the statute mandatory and so the Areggers were required to serve a copy with the Director rather than the assessor.

The Mandatory-Directory Problem. This is a common problem that arises in statutory construction. Generally, "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." Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 617, 585 P.2d 1265, 1269 (1978). In determining the mandatory or directory nature of the "shall," "the intention of the legislature must be ascertained." Id.

Here, the ICA went straight to the legislative record and found that the new language was a legislative fix for an earlier holding that the "shall" was directory. That was enough evidence for the ICA that the new language was intended to be mandatory. The ICA did not examine whether the newly amended statute "relate[d] to the essence of the thing to be done or . . . substantial rights depend[ed] on compliance." It seemed to be satisfied with the Legislative record. This raises an interesting question: can a statute be directory even if the Legislative history reflected showed an attempt to make it mandatory? Or, in broader terms, does a legislative fix always work in these kinds of cases?

But Rules Require Service on Assessor. Under the rules, an appeal is initiated by filing a notice of appeal with the clerk of the Tax Court. Rules of the Tax Appeal Court Rule 2(a). "The appellant shall file a copy of the notice with the assessor[.]" Id. The Areggers argued that the rules of the tax court--which were not amended to track to the statute--were controlling. The ICA rejected this argument. When there is a conflict between a rule and a statute, the statute prevails. In re Doe Children, 94 Hawai'i 485, 485, 17 P.3d 217, 218 (2008). The ICA further explained that while the Judiciary's rules "for all courts relating to process, practice, procedure and appeals . . . shall have the force and effect of law," Haw. Const. Art. VI, Sec. 7, these "rules shall not abridge, enlarge, or modify the substantive rights of any litigant, nor the jurisdiction of any of the courts, nor affect any statute of limitations." HRS § 602-11.

Comments

Post a Comment

Popular posts from this blog

Judge accidentally strikes the entire expert opinion in a murder trial

By Benjamin Lowenthal -
  State v. Sylva (HSC December 29, 2023) Background. Kumulipo Sylva was indicted for murder in the second degree after he was arrested for killing Eduardo Cerezo in the bathroom of the Queen Kaahumanu Shopping Center. Sylva raised the insanity defense and three examiners were appointed to determine penal responsibility. All three concluded that Sylva suffered from a physical or mental disease, disorder, or defect. Two out of the three believed he lacked capacity under the insanity defense was not criminally responsible.   At trial, the prosecution presented evidence that Cerezo and Kyle Keoho got on the bus in Pukalani when they saw Sylva on the bus. Cerezo called Sylva a “pussy” and threatened to beat him up. When the bus got to the shopping center, the three of them got off and Sylva challenged Cerezo to a fight. Cerezo said he did not want to fight and Sylva walked away from them.   Cerezo and Keoho went to the bathroom together. Sylva also went into the bath...
Read more

If you're going to set bail, it has to be reasonable and can't be excessive so $3.3 million won't work

By Benjamin Lowenthal -
  State v. Carter (ICA March 6, 2024) Background. Samuel Carter was indicted for attempted murder in the second degree and firearms offenses. He was held in jail without bail. About four months later, Carter filed a motion for supervised release or, in the alternative, a motion to set bail. Carter argued that there had been no findings supporting the decision to hold him without bail. The prosecution opposed and attached a letter to the Circuit Court noting that there had been no bail report because of the no-bail determination. According to the pretrial services intake center, it would not assess Carter’s eligibility for supervised release unless and until the court sets bail first.   At the hearing on the motion, Carter asked that bail be set at $100,000. The prosecution objected and argued that there was a rebuttable presumption of detention, Carter posed a danger to the community, and there was a flight risk. The prosecution did maintain that even though he could be...
Read more

HSC doesn’t wait for Rule 40 to find defense counsel ineffective for failing to file a motion to suppress

By Benjamin Lowenthal -
  State v. Yuen (HSC August 20, 2024) Background. Charles Tung Ming Yuen was charged with driving under the influence of an intoxicant. The charge arose from a motor vehicle collision that occurred approximately fifty feet from the O’Malley Gate just outside of the Joint Base Pearl Harbor-Hickam in Honolulu. Two vehicles were approaching the gate when one of the vehicle rear-ended the one in front of it. Military police came onto the scene and identified Yuen as the driver of the vehicle that cause the collision. They seized him and subjected him to standardized field sobriety tests. Then they held him and called the Honolulu Police Department to report a “possible DUI outside the gate.”   The collision, seizure of Yuen, and their investigation occurred outside of the base within the City and County of Honolulu. The police showed up and took over. They conducted their investigation, saw signs of intoxication, and arrested Yuen.   Yuen’s lawyer, Barry Sooalo, di...
Read more