Tuesday, March 30, 2010

Anti-trust Statutes Plain and Unambiguous, but HSC still Examines Legislative History

Davies v. Four Seasons Hotels (HSCA March 29, 2010)

Background. Plaintiffs were employees at Four Seasons Hotels on Maui and Big Island. They brought a class action in federal court alleging violations of State anti-trust laws. The complaint alleged that the hotel added a service fee for food and drink bills. The hotel does not have all of that fee to the servers as tip income. It either keeps it or distributes it to other employees. The hotel also does not disclose that to customers who, according to Plaintiffs, are misled into thinking that the fee covers the tip. The hotel brought a motion to dismiss on the grounds that the Plaintiffs failed to adequately plead the effect of the alleged claims. The federal district court submitted a certified question to the HSC: whether the Plaintiffs had standing when they did not plead the existence of competition or its effect.

The HRS 481B Claim . . . Plaintiffs allege that the Four Seasons violated HRS § 481B-14, which states:

Any hotel or restaurant that applies a service charge for the sale of food or beverage services shall distribute the service charge directly to its employees as tip income or clearly disclose to the purchaser of services that the service charge is being used to pay for costs or expenses other than wages and tips of employees.

HRS § 481B-14. Any entity in violation of HRS § 481B-14 "shall be deemed to have engaged in an unfair method of competition and unfair or deceptive act or practice[.]" HRS § 480-2(a).

"Any Person" has Standing for Unfair Method of Competition. The HSC rejected Four Seasons' argument that Plaintiffs had no standing. Consumers, the Attorney General, or the director of consumer protection are the only ones that can bring an unfair or deceptive act or practice. HRS § 480-2(d). However, an unfair method of competition claim can be brought by "[a]ny person." HRS § 480-2(e). A "person" includes "individuals, corporations, firms, trusts, partnerships, limited partnerships, limited liability partnerships, limited liability limited partnerships, limited liability companies, and incorporated or unincorporated associations[.]" HRS § 480-1. "Where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning." Cieri v. Leticia Query Realty, Inc., 80 Hawai'i 54, 67, 905 P.2d 29, 42 (1995).

The HSC held that the plain and unambiguous language of the statute includes "individuals," that is, persons like the employees. Standing, therefore, is not limited to consumers, businesses, or competitors. The HSC also reviewed the legislative history of the statute and federal interpretations of its anti-trust statutes and concluded that there is nothing inconsistent with its holding.

Additional Requirements with the HRS 481B Claim. Actions enforcing anti-trust statutes must satisfy HRS § 480-13. Flores v. Rawlings Co., LLC, 117 Hawai'i 153, 162, 177 P.3d 341, 350 (2008). "Any person who is injured in the person's business or property by reason of anything . . . declared unlawful by" HRS chapter 480 can sue for damages and injunctive relief. HRS § 480-13. The three elements that must be established are (1) violation of HRS chapter 480, (2) which causes injury to the person's business or property; and (3) proof of damages. Hawai'i Medical Ass'n v. Hawai'i Medical Services Ass'n, 113 Hawai'i 77, 114, 148 P.3d 1179, 1216 (2006). And while the plaintiff need not be a competitor, "the nature of the competition [must be] sufficiently alleged in the complaint." Id. at 113, 148 P.3d at 1215.

Plaintiffs Pleaded Injury to Business or Property . . . The HSC held that Plaintiffs adequately pleaded an injury to their business or property. It is sufficient to "allege that injury occurred to personal property through a payment of money wrongfully induced" or through the diminishment of finances as a result of the unfair method of competition. Id. at 114, 148 P.3d at 1216. Here, according to the HSC, the "business" was the work of banquet servers and the "property" was the lost tip income. That was enough.

. . . but Failed to Plead the Nature of the Competition. The HSC, however, held that Plaintiffs did not adequately plead the "nature of the competition." According to the HSC, Plaintiffs were required to allege how Four Seasons' conduct negatively affected competition. In doing so, the HSC rejected Plaintiffs' argument that HRS § 481B-14 "deems" a violation of HRS chapter 480. Simply put, the HSC held that "although Employees allege that they have suffered an injury resulting from Four Seasons' violation of § 481B-14, which is deemed to be an unfair method of competition by § 481B-4, Employees are additionally required to allege the 'nature of the competition.'" They did not and so the complaint fails.

Justice Acoba's Dissent. Justice Acoba took issue with the interpretation of the word "deem." Any person who violates HRS chapter 481B "shall be deemed to have engaged in an unfair method of competition and unfair or deceptive" trade practice. HRS § 481B-4. Justice Acoba wrote that because the statute was clear and unambiguous, "courts must give effect to the law according to its plain and obvious meaning." County of Hawai'i v. C & J Coupe Family Ltd. P'ship, 119 Hawai'i 352, 362, 198 P.3d 615, 625 (2008). The word "deem" is not defined. The ordinary meaning of the word means established. That means that a violation of HRS § 481B-4 is in and of itself both an unfair or deceptive trade practice or an unfair method of competition.

According to Justice Acoba, the majority's requirement to plead further allegations or proof of anti-trust violations in addition to the HRS § 481B violation renders the term "deem" superfluous. That construction departs from the canon of construction that "court are bound, if rational and practicable, to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all the words of the statute." Camara v. Agsalud, 67 Haw. 212, 215-16, 685 P.2d 794, 797 (1984). In sum, Justice Acoba believed that Plaintiffs adequately pleaded their claims and that a motion to dismiss should be denied.

Is There a Place for Legislative History Among Plainly Written Statutes? The majority made it clear that the plain and unambiguous language of the statute required additional allegations. However, the majority also looked to legislative history and federal cases for support. Why?

Justice Acoba was quick to point out that once the language is plan and unambiguous, that is the end of the matter. Legislative history should only be resorted to when the statute is unclear. See T-Mobile USA, Inc. v. County of Hawaii Planning Comm'n, 106 Hawai'i 343, 352, 104 P.3d 930, 939 (2005) ("courts turn to legislative history as an interpretive tool only where a statute is unclear and ambiguous."). Does that render the majority's analysis that the legislative history is in support of the plain reading dicta? What would happen if there was no support from the legislative history? Would it in any detract from the plain language? Probably not. But does this signify a partial departure from the rules of statutory interpretation about plain language? Probably not. The majority acknowledged that it looked to legislative history "even if the language of [the statute] is considered to be unclear and ambiguous[.]" But it's not, right? Didn't the majority just declare that it was not? So why did the majority do it? Has legislative history crept back into the plain-language analysis? It's too early to tell.

Thursday, March 25, 2010

Appellate Court had Jurisdiction to Hear and Hold Circuit Court had Jurisdiction

Mikelson v. United Services Automobile Association (ICA March 24, 2010)

Background. Mikelson was riding his motorcycle when he was hit by an automobile. He suffered injuries and brought a lawsuit against his father's insurance company, United Services Automobile Association (USAA). The case went to arbitration. The arbitrator awarded Mikelson around $110,00. Mikelson filed in the circuit court a motion to confirm the award. USAA opposed on the grounds that the award was satisfied and that the circuit court did not have jurisdiction to hear the motion. The motion was granted and USAA appealed.

ICA has Jurisdiction to Hear the Appeal. The ICA first rejected Mikelson's contention that it did not have appellate jurisdiction. Review "of arbitration awards by the circuit and appellate courts is limited by the provisions of the arbitration statute." United Pub. Workers, AFSCME, Local 646, AFL-CIO v. Dawson Int'l, Inc., 113 Hawai'i 127, 137-38, 149 P.3d 495, 505-06 (2006). Parties can appeal from an "order confirming or denying confirmation of an award." HRS § 658A-28(a)(1). According to the ICA, this is an appeal from the order granting Mikelson's motion to confirm the arbitration award and so there is appellate jurisdiction to hear the case.

Okay, so There's Jurisdiction, so how does the Appellate Court Review it? The appellate courts "review the circuit court's ruling on an arbitration award de novo, but we also are mindful that the circuit court's review of arbital awards must be extremely narrow and exceedingly deferential." Tatibouet v. Ellsworth, 99 Hawai'i 226, 233, 54 P.3d 397, 404 (2002). This is an interesting standard. Typically, when the appellate court reviews a decision de novo, there is almost no deference to the circuit court--as opposed to the abuse-of-discretion standard. Then again, the circuit court has to be deferential to the arbitrator. So in a sense, the ICA still does not have to defer to the circuit court, but it must still defer to the arbitrator--just as the circuit court should.

. . . And the Circuit Court had Jurisdiction too. "[C]ourts will not consume time deciding abstract propositions of law or moot cases, and have no jurisdiction to do so," Lingle v. Hawai'i Gov't Employees Ass'n, AFSCME, Local 152, AFL-CIO, 107 Hawai'i 178, 187, 11 P.3d 587, 596 (2005). Once a party receives notice of an award, "the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to section 658A-20 or 658A-24 or is vacated pursuant to section 658A-23." HRS § 658A-22. Confirmation is an "expeditious procedure for reducing or converting the arbitration award to a judgment which can be enforced by judicial writ." Krystoff v. Kalama Land Co., 88 Hawai'i 209, 214, 965 P.2d 142, 147 (App. 1998). The ICA rejected USAA's contention that the circuit court did not have jurisdiction to confirm the award because they already paid Mikelson and, thus, the issue was moot.

Turning to Federal Interpretations Because Similarity in Statutes. Because HRS § 658A-22, according to the ICA, "is virtually identical to the language of the federal arbitration statute, we may look to federal authority for guidance" in interpreting it. See Bateman Constr., Inc. v. Haitsuka Bros., Ltd., 77 Hawai'i 481, 485, 889 P.2d 58, 62 (1995). The ICA surveyed a hodge-podge of federal cases and found a split in opinions. Some, according to the ICA, have held that the arbitration award must be confirmed despite compliance with the award because the plain language of the statute mandates it and because the confirmation of the award "is concerned with the propriety of the award itself and is unrelated to enforcement[.]" See Zeiler v. Deitsch, 500 F.3d 157 (2d Cir. 2007); Collins v. D. R. Horton, Inc., 361 F. Supp.2d 1085 (D. Ariz. 2005); District Council No. 9 v. APC Painting, Inc., 272 F.Supp. 2d 229 (S.D.N.Y. 2003); Ottley v. Schwartzberg, 819 F.2d 373 (2d Cir. 1987).

Others do not distinguish the confirmation of an award from the enforcement of an award and would not confirm awards that have been satisfied. Derwin v. General Dynamics Corp., 719 F.2d 484, 491-92 (1st Cir. 1983) (confirmation of satisfied award "seems to us cumbersome, unnecessary, and potentially misleading"); Local 2414 of United Mine Workers of America v. Consolidated Coal Co., 682 F.Supp. 399 (S. D. Ill. 1988). According to the ICA, equating confirmation of the award with the enforcement of the award, departs from the plain language of the statute. And the ICA saw no reason to reject the plain language of HRS § 658A-22.

Mootness is not a Ground for Denying Confirmation. Furthermore, the statute plainly requires confirmation upon motion unless it is modified, corrected, or vacated. USAA did not seek to modify, correct, or vacate the award. The sole issue raised before the circuit court was that it was moot because the award had been satisfied. This is not one of the statutory grounds allowing the circuit court to deny a motion for confirmation.

Carefully Crafted Statutory Construction Rules. The ICA relied extensively on cases outside this jurisdiction, particularly federal jurisdictions. The ICA was sensitive to looking beyond Hawai'i and noted that its reliance of federal interpretations was based on the fact that the federal arbitration statute is "virtually identical" to the Hawai'i statute. The federal law itself was in disarray. The ICA acknowledged the differences in opinion on the issue and went with the line of federal cases that appeared to be more consistent with Hawai'i's own rules of statutory construction--that the plain language rules. Honda v. Bd. of Trs. of the Employees' Ret. Sys. of the State, 108 Hawai'i 212, 233, 118 P.3d 1155, 1176 (2005) ("following our well-settled approach to statutory interpretation, we look first to the plain language of the statute.").

Monday, March 22, 2010

HSC Rejects SCOTUS Interpretation of Sixth Amendment, Adopts new Standard for Hawai'i

State v. Mattson (HSC March 19, 2010)

Background. Mattson was charged with terroristic threatening in the first degree. HRS § 707-715. During the three-day jury trial, the State called various witnesses. Mattson testified in his defense. At closing the prosecutor said this:

He told you a lie before. He had a chance to sit through the evidence. He had to make his story gibe [sic] with what you've heard. . . . He sat through the evidence. There is a 911 tape. [One witness's] statement. [Another witness's] statement. Based on all that, he is not telling the truth. All of a sudden he remembered that he grabbed that knife.

This case is about credibility.

The jury found Mattson guilty of terroristic threatening. The ICA affirmed.

Sixth Amendment not Offended by Accusations of Tailored Testimony by Defendant. Mattson argued that the prosecutor's comments infringed upon his rights under the Hawai'i Constitution to be present at trial and testify on his own behalf. The case hinged upon the HSC's acceptance of Justice Ginsburg's dissent in Portuondo v. Agard, 529 U.S. 61 (2000). In that case, the prosecutor argued at closing that the defendant had "the benefit" of listening to all the other witnesses before he testified. Id. 529 U.S. at 63-64. The SCOTUS majority held that this comment did not infringe upon his right to be present and testify at trial. Id. at 68, 71. Justice Ginsburg, joined by Justice Souter, dissented. Justice Ginsburg wrote that the comment "transforms a defendant's presence at trial from a Sixth Amendment right into an automatic burden on his credibility." Id. at 76. Justice Ginsburg believed that "every defendant who testifies is equally susceptible to a generic accusation about his opportunity for tailoring [his or her testimony]." Id. at 77-78.

But HSC Departs from Federal Interpretations of the Constitution. The HSC--"as the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawai'i Constitution"--can "give broader protection under the Hawai'i Constitution than that given by the federal constitution." State v. Arceo, 84 Hawai'i 1, 28, 928 P.2d 843, 870 (1996). Even "when the United States Supreme Court's interpretation of a provision present in both the United States and Hawai'i Constitutions does not adequately preserve the rights and interests sought to be protected, we will not hesitate to recognize the appropriate protections as a matter of state constitutional law." State v. Bowe, 77 Hawai'i 51, 57, 881 P.2d 538, 544 (1994). The only issue for the HSC to decide was whether to adopt the majority in Portuondo.

It didn't. The defendant's rights under the confrontation clause is essential to a fair trial. See State v. Peseti, 101 Hawai'i 172, 180, 65 P.3d 119, 127 (2003); State v. Apilando, 79 Hawai'i 128, 131, 900 P.2d 135, 138 (1995). Like the SCOTUS, under prosecutor is not permitted to comment on the defendant's right to remain silent at trial. State v. Wakisaka, 102 Hawai'i 504, 515, 78 P.3d 317, 328 (2003). The HSC characterized Wakisaka broadly and noted that "a prosecutor's comments may not infringe on a defendant's constitutional rights."

The HSC agreed with the dissent and held that under Article I, section 14 of the Hawai'i Constitution, it is improper "for the prosecution to make generic accusations during closing argument that a defendant tailored his [or her] testimony based solely on the defendant's exercise of his [or her] constitutional right to be present during the trial."

Not a "Generic Accusation" Because Prosecutor Referred to Specific Evidence Contradicting the Defendant's Testimony. Turning to the facts, the HSC held that the prosecutor's comments did not arise to a violation of the Hawai'i confrontation clause. Although the prosecutor argued to the jury that Mattson had a chance to sit through the other witnesses' testimony and although she specifically accused Mattson of tailoring his testimony, the prosecutor did refer to specific evidence adduced at trial that directly contradicted Mattson's testimony. This reference, according to the HSC, indicated that it was not a "generic accusation" that the testimony was tailored based solely on the defendant's presence. Thus, there was no violation of the Hawai'i Constitution and no prosecutorial misconduct.

Justice Acoba's Dissent. Justice Acoba did not agree with the SCOTUS majority and it did not think that the HSC went far enough. "[T]his approach, as shown by several state decisions, provides little protection to defendants who not only have the constitutional right to be present at trial, but, as in our jurisdiction, are required by law to do so." Justice Acoba was referring to Hawai'i Rules of Penal Procedure (HRPP) Rule 43, which requires the defendant's presence at all stages of the trial. Justice Acoba believed that the better approach came from New Jersey in State v. Daniels, 861 A.2d 808 (N.J. 2004), which prohibits the prosecution from referring to "the fact that the defendant was in the courtroom or that he heard the testimony from other witnesses, and was thus able to tailor his [or her] testimony." Id. at 819. According to Justice Acoba, the prohibition is not limited to closing argument. "[A]ll accusations of tailoring at any stage at trial, including cross examination and summation, impermissibly burden a defendant's right to be present at trial and confront witnesses[.]" Justice Duffy joined.

An Unworkable Standard? The majority adopted a test, which prohibits the prosecutor from arguing at making a "generic accusation" that the defendant narrowly tailored his or her testimony based solely on the exercise of the right to be present at trial. So when would the majority's standard protect the defendant? It seems that so long as the prosecutor argues that there was direct evidence contradicting the defendant's testimony, the prosecutor is in the clear. But what if there was something less than direct evidence of something contradictory? What if there was simply an inference or a logical fallacy? Would that be closer to a "generic accusation" based solely on the right to be present? And even if it was, in how many cases would those circumstances arise?

Friday, March 19, 2010

Without Special Relationship, Hotel owes no duty for Those Injured by Suicidal Trespassor

Schwenke v. Outrigger Hotels Hawai'i, LLC (ICA March 18, 2010)

Background. Cameron Tuupoina went to the Maile Sky Court, a hotel in Waikiki, and climbed up to the roof. He was not a registered guest. Tuupoina jumped from the hotel and landed onto Sogi Schwenke's car causing substantial injuries. Schwenke and others sued Outrigger and Wackenhut, its security, for negligence. The circuit court granted the defendants' motions for summary judgment on the grounds that there was no duty owed to Schwenke.

Absent Special Relationship, no duty to Protect Plaintiff from Third Parties. "A prerequisite to any negligence action is the existence of a duty owed by the defendant to the plaintiff." Cuba v. Fernandez, 71 Haw. 627, 631, 801 P.2d 1208, 1211 (1990). Absent a special relationship, "[t]here is no duty . . . to control the conduct of a third person as to prevent him [or her] from causing physical harm to another[.]" Id. at 631-32, 801 P.2d at 1211 (quoting Restatement (Second) of Torts § 315 (1965)). A "special relationship" includes the relationship between common carriers and their passengers, innkeepers and guests, possessors of land who open the land to the public, and "[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his [or her] normal opportunities for protection under a similar duty to another." Id. (quoting Restatement (Second) of Torts § 315A). Here, the ICA agreed that there was no duty owed to Schwenke.

A Special case for Suicide? The ICA held that there was no duty owed to Schwenke. The ICA examined these facts "in the context of a suicide." The ICA relied extensively on Lee v. Corregedore, 83 Hawai'i 154, 925 P.2d 324 (1996). In that case, the issue centered around whether a counselor owed a duty of care to a non-custodial client who committed suicide. Id. at 156-58, 925 P.2d at 326-28. The HSC answered that in the negative and "recognized a reasonable duty of care to prevent suicide only on the part of a defendant who had actual custody of a suicidal person." Id. at 161, 925 P.2d at 331.

The Lee case v. the Restatement? The plaintiffs in this case were injured by a man committing suicide. The plaintiff in Lee sued on behalf of the man who committed suicide claiming that the breach of duty was the failure to prevent the suicide. Here, the plaintiffs claim that the defendants owed them a duty to protect them from the foreseeable suicide. In this scenario--where a third party actor injures the plaintiff--it would seem that the general rule from the restatement would apply rather than the facts from Lee. Does Lee matter in this case? Aren't we dealing with something entirely different?

Interview with HSBA President, Hugh Jones

This blog has never conducted interviews before. Of course, we would like to see more of them (especially from judges). This is the first. Hugh Jones, the President of the Hawai'i State Bar Association agreed to an interview for Hawai'i Legal News.

Hi, Mr. Jones. Tell us about yourself. I've practiced law in Hawai'i since 1988. I joined the Attorney General's office in 1989 with the Office of Information Practices. I wrote opinions and advised government agencies about the public's right to know. I then went over to the AG's Tax division in 1996 and was working in the bankruptcy area for a period of time until I was recruited by Marjorie Bronster to work on the Bishop Estate investigation and subsequent litigation.

The AG's Bishop Estate Civil Team recovered $20 million from the trust for breach of trust claims. After that in 2000, I started building a charities regulations program at the AG's Office and participating in the implementation of reforms at the Bishop Estate. A big part of beefing up our charities regulation included significant statutory changes. I am now supervising the tax division as well as the charities oversight.

You were born, raised, and educated in Wisconsin. How did you end up here? I unexpectedly moved to Honolulu with my then-girlfriend (now wife) who got an interview with an established Honolulu firm. She got the job and I suddenly found myself in Hawai'i. I never knew I'd end up here, but I'm glad I did. Hawai'i is now my home.

You have your own twitter account. How can the HSBA use twitter and other social online media? I am pushing heavily on the bar association to start using twitter as a communications vehicle. The Judiciary has launched its own twitter account. I think it's a good communications tool, but certainly not the only one. For example, twitter messages about legislation or proposed rules that could affect attorneys' legal practice could be an effective use of this tool. I think the Bar Association will start providing small bursts of information via Twitter like that before my term is up.

Do you think Hawai'i law blogs should be part of the HSBA website? I think that's worthy of examination. There are some sticky issues under the US Supreme Court decision, Keller v. State Bar of California, 496 U.S. 1 (1990), which forbids the use of bar dues in connection with lobbying. For example, providing a link to a blog that would advocate certain policies would be problematic. But our job is not to be the gatekeeper and I would definitely consider a blogroll that simply provides links to all blogs without advocating them.

You are the first government lawyer elected to be president of the HSBA, a non-profit organization. How is that significant? I was looking at our mission statement and goals. The HSBA's first goal is to develop and maintain an effective democratic organizational structure that serves the needs of its members. So I think a the election of a practicing government lawyer is the first step toward being a more democratically run organization.

Government lawyers are a very large segment of our bar. Approximately 900 are considered government lawyers and that's almost 20 percent of our Bar. I think it's important that we have had women, solo practioners, neighbor islanders, and others serve in the position of President. I'm proud to be the first government lawyer serve as the bar president. It confirms that we are a meeting that goal of a democratically-run organization.

Do you think government lawyers are well represented in HSBA committees? I am looking toward a government lawyers division in the bar. The only thing that unites government lawyers is our status as government lawyers. I support the formation of a government lawyers division.

The objectives of the government lawyers division would be to provide continuing legal education, put on programs for government lawyers. There is certainly a social element as well. And advocate at the legislature on issues of common interest to our public sector bar.

When you say advocate at the legislature, would it be something similar to the lobbyist wing of the HGEA or UPW? Something like a lawyers' union? That's certainly a possibility. There is a whole range of issues that affect government lawyers ranging from furloughs to employment issues.

Do you have any inspirational appellate justices or trial judges? I always found inspiration from the late Judge John Lim. One of the most inspirational moments in my legal career was arguing in the First Circuit before Judge Lim. I was going up against the State of Hawai'i Organization of Police Officers seeking to quash the disclosure of public records about police discipline to the public. The courtroom was packed with uniformed police officers. I couldn't even get into the courtroom to argue the motion because there were so many police officers. I had to get a deputy sheriff to bring me in.

We argued their motion before Judge Lim for about two hours and then he ruled extemporaneously from the bench for 30 minutes. He was so eloquent. He referred to the Founding Fathers and the importance of the public's right to know. It was kind of a chicken skin moment for me. He denied their motion and the Hawai'i Supreme Court upheld that decision.

What about the lawyers? I'm married to one. I love lawyers.

We are a mandatory bar association. That means that in order to practice law in Hawai'i, you have to be a member of the HSBA. Is that a good thing? I think it's the reality that we live in. It's neither a good thing nor a bad thing. It just is. We are not a truly integrated bar like other states. Other entities like the ODC and the Hawai'i Supreme Court handle attorney admissions and disciplinary matters. So unlike other states, we are not completely integrated. Our bar association has aged and we generally provide a broad spectrum of benefits and services.

What are some of the new services? We are about to unroll a new website that will be more accessible and friendly for users. We offer a free legal research tool (Casemaker). As for our services, we will be doing more video conferencing of our CLE courses. I would like to see podcasting as well. With a podcast, you can be on a treadmill at the gym while getting your CLE credits.

Tell us about the Senior Counsel Division. We have over 7,000 members of the Hawai'i Bar. And we are a maturing bar. The demographics show that the biggest component of the bar are over 50 years old. A senior counsel is defined by his or her age just like young lawyers. Anyone over 50 is a senior counsel so that means as of next Monday (3/22), I'll be one too. The division intended for senior counsel to provide some kind of mentorship over young lawyers while at the same time keeping our senior lawyers sharp on their skills both professionally and socially.

Anything you want to add? As the Board of Directors and the governance of the bar, we are most anxious to hear from the members about what would help them in their law practice. The ways the practice of law can be made easier. If you know a director or even if you don't, please share your ideas. From the grassroots come the best ideas.


Monday, March 15, 2010

HSC Expands Trial Court's Duty to Instruct Juries on Potential Defenses (or has it?)

State v. Stenger (HSC March 4, 2010)

Background. Stenger applied for financial aid, medical coverage, and food stamps with the Dept. of Human Services. Stenger reported her income and financial situation to DHS and was told that she must report changes in her finances and her living situation within ten days of the change. From July 2002 to May 2003, Stenger received public assistance. DHS investigated and determined that Stenger was not reporting all of her income. DHS concluded that she had been overpaid around $23,000 in public assistance. Stenger was indicted with one count of theft by deception in the first degree (HRS §§ 708-830(2) and 708-830.5(1)(a)).

At trial Stenger requested a unanimity instruction and a claim of right instruction because she believed she was entitled to the benefits obtained. The instructions were denied. The circuit court instructed the jury about Theft in the First Degree with Theft in the 2d as an included offense. The jury found Stenger guilty of Theft in the 1st Degree. On appeal, Stenger argued, inter alia, that the circuit court failed to instruct the jury about a mistake of fact defense even though it was never requested.

Mistake-of-Fact Instruction Should've been Given Because Evidence Supported it, "no Matter how weak." It is a defense that the accused "engaged in the prohibited conduct under ignorance or mistake of fact if . . . the ignorance or mistake negatives the state of mind required to establish an element of the offense[.]" HRS § 702-218(1). This is not an affirmative defense so once the defendant shows "credible evidence of facts constituting the defense," the burden shifts to the State to disprove the defense beyond a reasonable doubt. State v. Locquiao, 100 Hawai'i 195, 206, 58 P.3d 1242, 1253 (2002). In Locquiao, the HSC held that when the defendant adduced evidence at trial supporting an instruction, the trial court must separately instruct the jury on the defense "at the defendant's request[.]" Id. at 208, 58 P.3d at 1255.

According to the HSC, defendants are entitled to jury instructions "no matter how weak" the evidence may be:

[A] defendant is entitled to an instruction on every defense or theory of defense having any support in the evidence, provided such evidence would support the consideration of that issue by the jury, no matter how weak, inconclusive, or unsatisfactory the evidence may be. Moreover, it is the trial court's duty to insure that the jury instructions cogently explain the law applicable to the facts of the case.

Id. at 205-06, 58 P.3d at 1252-53.

Unlike Locquiao, Stenger never requested the mistake-of-fact instruction. Nonetheless, the HSC explained that "once instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant's conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt." State v. Nichols, 111 Hawai'i 327, 337, 141 P.3d 974, 984 (2006).

"No Matter how Weak . . . " According to the HSC, it had to determine (1) whether Stenger presented any evidence "no matter how weak" that would have supported a mistake-of-fact defense; and (2), if so, whether the failure to instruct on mistake of fact was harmless beyond a reasonable doubt. The HSC held that Stenger adduced credible evidence demonstrating a mistake-of-fact defense and was thus entitled to a mistake-of-fact instruction. The HSC also held that the failure to instruct was not harmless. Just because "the court provided an instruction as to the requisite state of mind for theft . . . does not render the failure to instruct on mistake of fact harmless."

Claim of Right Requires Belief of Pre-Existing Ownership of Specific Property. "It is a defense to a prosecution for theft that the defendant[] . . . [b]elieved that the defendant was entitled to the property or services under a claim of right[.]" HRS § 708-834(1). The HSC noted that even if the claim-of-right instruction was necessary, "it is already subsumed within in the mistake of fact defense" and that it "should only be given where the circumstances of the case require it 'for purposes of clarity and emphasis.'" Commentary on HRS § 708-834.

The HSC noting that the term "claim of right" was undefined. According to Black's, it means that "a defendant assert[s] that the property was taken under the honest (but mistaken) belief that the defendant had a superior right to the property." Black's Law Dictionary 266 (8th ed. 2004). Furthermore, a "claim of right . . . amounts to a belief that the actor is the true owner." Commentary on HRS § 708-834. This comment, according to the HSC, implies that the defendant asserting a claim of right must have a belief that he or she had an entitlement to the property prior to depriving others of it. Finally, "[i]t is vital to the defense . . . that the interest which the accused asserts under a claim of right must be to specific property. " State v. Brighter, 62 Haw. 25, 30, 608 P.2d 855, 859 (1980) (per curiam). Property is "specific" when the defendant "believes that the particular indentifiable item seized is the same as that which was previously in the defendant's possession." Citing State v. Martin, 516 P.2d 753, 755 (Or. App. 1973).

Thus, the HSC held that a claim of right defense requires the belief that the defendant had a pre-existing ownership right to specific property. This is not the same as the general mistaken belief that defendant is entitled to something or that a debt is owed to the defendant. Here, the HSC held that Stenger did not argue that she had a right to the specific coins or bills she received from DHS and thus, did not claim "specific property." Thus, the ICA erred in concluding that Stenger was entitled to a claim-of-right instruction. The HSC specifically held that a claim of right defense must encompass a form of pre-existing ownership to specific property.

No Unanimity Instruction Needed for Theft in the 1st. A criminal defendant is entitled to a unanimous verdict. State v. Arceo, 84 Hawai'i 1, 30, 928 P.3d 843, 872 (1996). When "separate and distinct culpable acts" could support a single conviction, there must be (1) a unanimity instruction (i.e. "an instruction that advises the jury that all twelve of its members must agree that the same underlying criminal act has been proved beyond a reasonable doubt") or (2) the prosecutor "elects" the specific conduct upon which it is trying to establish the "conduct" element. State v. Arceo, 84 Hawai'i at 32-33, 928 P.3d at 874-75. No instruction is necessary when the offense is a "continuing" one and when the prosecutor argues that "the requisite conduct element is satisfied by the defendant's continuing course of conduct. State v. Hironaka, 99 Hawai'i 198, 207-08, 53 P.3d 806, 815-16 (2002). An offense is "continuing" when it is "a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy[.]" State v. Arceo, 84 Hawai'i at 18, 928 P.2d at 860. The HSC noted in Arceo that theft by deception is one example of a "continuing" offense. Id. at 19, 928 P.2d at 861. It was clear to the HSC that in this case, theft by deception in the 1st degree--that is, theft of the entire amount--is a "continuing offense" that did not require a unanimity instruction.

Unanimity Still Necessary for Lesser-Included Theft in 2d. Stenger argued that the jury could have found that she obtained benefits one month illegally and another month legally. If that is so, then the lesser-included theft in the 2d degree would apply. That lesser-included offense, according to Stenger, required the unanimity instruction because it would be impossible to know which series of acts constituted the offense. The HSC agreed. The unanimity instruction is intended "to eliminate any ambiguity that might infect the jury's deliberations respecting the particular conduct in which the defendant is accused of engaging and that allegedly constitutes the charged offense." State v. Kassebeer, 118 Hawai'i 493, 508, 193 P.3d 409, 424 (2008). According to the HSC, the prosecutor failed to argue that for the lesser-included offense "the requisite conduct element is satisfied by the defendant's continuous course of conduct." State v. Hironaka, 99 Hawai'i at 208, 53 P.3d at 816. Thus, on remand, if the prosecutor again fails to make the argument, there must be a unanimity instruction for theft in the 2d to ensure that the jury was unanimous.

The Other Lessers are Necessary. The HSC also held that the jury must be instructed as to the other lesser-included offenses of theft in the 3d and theft in the 4th. The severity of theft offenses are based on the value of the property that was taken. The trial court "must instruct juries as to any included offenses when there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense[.]" State v. Haanio, 94 Hawai'i 405, 413, 16 P.3d 246, 254 (2001). Juries are "obligated to render true verdicts based on the facts presented; hence, barring their consideration of lesser included offenses supported by the evidence undermines their delegated function." Id. at 415, 16 P.3d at 256. Here, the circuit court did not instruct the jury on the lesser-included offenses of theft in the 3d and 4th degrees. The HSC held that it was possible for the jury to conclude that less than $20,000 was taken as well as less than $300 or even $100 and, thus, it was error to not instruct the jury on these offenses.

Justice Nakayama's Dissent: Trial Court not Obligated to Instructions as to All Defenses. Justice Nakayama believed that the trial court was not obligated to sua sponte instruct the jurors on the mistake-of-fact defense. Justice Nakayama wrote that although the trial court has a duty to properly instruct the jury, the failure to instruct the jury on the defense without it being requested by the defendant cannot be an instructional error. Justice Nakayama believed that because neither Stenger nor the prosecution requested the mistake-of-fact instruction, it cannot be error for the trial court to not give it. Justice Nakayama was concerned that it would be too burdensome for the trial court to examine every possible theory that may fit the evidence, which would radically restructure the adversarial system and even create incentives for the defense to make no request. She also believed that the failure to give the mistake-of-fact instruction was not harmless.

Chief Justice Moon's Dissent: not all--Including this one--but some. Chief Justice Moon disagreed with the broad rule implied by the majority as well as Justice Nakayama's narrow view that a trial court never duty bound to instruct the jury sua sponte as to all defense instructions. Chief Justice Moon also disagreed with Judge Kim's position and believed that the majority has implicitly held that the trial courts are duty-bound to give instructions on all possible defenses that fit the evidence, "no matter how weak." There are times, wrote Chief Justice Moon, where a trial court is required to instruct the jury sua sponte. Looking to California courts, Chief Justice Moon believed that the trial court has a duty to sua sponte instruct the jury on potential defenses when (1) it appears that the defendant relied on the defense; and (2) there is "substantial evidence" to support the defense and it is not inconsistent with the defendant's theory of the case. See People v. Barton, 906 P.2d 531, 535 (Cal. 1995). In this case, Chief Justice Moon agreed with Justice Nakayama that the failure to give the mistake-of-fact instruction was harmless.

Judge Kim's Concurrence: not all, but some--Including this one. Judge Kim--who was substituting to fill the vacancy created by Justice Levinson--wrote separately to comment on Justice Nakayama's dissent. Judge Kim wrote that it does not necessary follow "from the majority opinion that, as a matter of law, a trial court is hereafter required to instruct the jury sua sponte as to every conceivable defense suggested by the evidence below." Judge Kim pointed out that in this particular case, the heart of the defense was a mistake of fact even though it requested a claim of right instruction, which--as made clear by the majority--would have been subsumed by the more general mistake of fact. As Judge Kim wrote, "the defense had the theory right, but the specific instruction wrong, and the trial court, while correctly recognizing the latter, mistakenly failed to recognize the former[.]" Judge Kim wrote that Justice Nakayama's concerns about having to comb the evidence for every possible defense were unfounded because "here, the theory at issue formed the very heart of the defense case, rather than some nebulous, barely glimpsed theory on the margins."

Thursday, March 4, 2010

Calibration Foundation Requisites Extend to Speed Check Certificates

State v. Fitzwater (HSC March 3, 2010)

Background. Fitzwater was charged with excessive speeding. HRS § 291C-105(a)(1). During his trial, Officer Ah Yat testified that he saw Fitzwater travelling on his motorcycle at a high rate of speed. Officer Ah Yat, also on a motorcycle, followed him. Officer Ah Yat paced Fitzwater for 0.2 of a mile and his odometer read 70 mph. in a 30 mph. zone.

Officer Ah Yat testified that his motorcycle underwent a "speed check," a test performed by a non-police entity known as Jack's Speedo in which the actual speed of the vehicle is calibrated against the speed read on the odometer. The speed check is accurate for up to one year. Officer Ah Yat testified that the speed check card was created with an understanding that it would be used to prosecute speeding cases. Fitzwater objected to the admission of a card issued by Jack's Speedo that recorded the recent speed check on the grounds that it was inadmissible hearsay and violated the confrontation clauses. The district court overruled. Fitzwater then objected to the card on the grounds that the State failed to lay adequate foundation. That too was overruled. The card was admitted into evidence, Fitzwater was found guilty, and the ICA affirmed.

Sufficient Objection to Foundation Made by Objecting to the Testimony at Trial. Fitzwater argued that the prosecution did not lay proper foundation establishing that the speedometer on Officer Ah Yat's motorcycle had been properly calibrated. The ICA refused to review this issue on the grounds that Fitzwater failed to preserve this on appeal. The HSC disagreed with the ICA's analysis. The HSC noted that it was obvious that Fitzwater was objecting to a lack of foundation regarding the calibration of the speedometer. "His objections were made in response to the State asking Ah Yat to describe the results of the speed check, essentially asking Ah Yat to testify that the results showed that the speedometer was accurate at various speeds." That, according to the HSC, was enough to preserve the issue on appeal. HRE Rule 103(a)(1) (when "the ruling is one admitting evidence," the party must timely object by "stating the specific ground of objection, if the specific ground was not apparent from the context"); State v. Long, 98 Hawai'i 348, 353-55, 48 P.3d 595, 600-602 (2002) .

State Failed to Establish Adequate Foundation for Properly Calibrated Mechanism. Generally before a measurement can be admitted at trial, the proponent must establish that the mechanism recording the measurement was properly calibrated. See State v. Wallace, 80 Hawai'i 382, 910 P.2d 695 (1996); State v. Manewa, 115 Hawai'i 343, 167 P.3d 336 (2007); State v. Assaye, 121 Hawai'i 204, 216 P.3d 1227 (2009). The HSC found "no reason to apply different foundational requirements in the context of speed checks, since the underlying concerns about the reliability of the testing appear to be similar."

The HSC held that in order to for the results of speed checks to be admissible, the State must establish (1) "how and when the speed check was performed, including whether it was performed in the manner specified by the manufacturer of the equipment used to perform the check, and (2) the identity and qualifications of the person performing the check, including whether that person had whatever training the manufacturer recommends in order to competently perform it." See State v. Assaye, 121 Hawai'i at 212-14, 216 P.3d at 1235-36; State v. Manewa, 115 Hawai'i at 355-57, 167 P.3d at 348-50; State v. Wallace, 80 Hawai'i at 412 n. 28, 910 P.2d at 725 n. 28. The HSC held that the speed check card nor the testimony of Officer Ah Yat established these foundational requirements. Thus, the district court erred in allowing Officer Ah Yat to testify about the accuracy of the odometer. Without this accuracy, there was insufficient evidence to find Fitzwater guilty of excessive speeding.

The Business Records Exception to the Hearsay Rule Applies. Hearsay statements are inadmissible. HRE Rule 802. However, a record "made in the course of a regularly conducted activity, at or near the time [of the incident] . . ., as shown by the testimony of the custodian or other qualified witness, or by certification" not excluded by the hearsay rule "unless the sources of information or other circumstances indicate a lack of trustworthiness." HRE Rule 803(b)(6). The HSC rejected Fitzwater's argument that the speed check card was made in anticipation of litigation and thus was not conducted "in the course of a regularly conducted activity."

In doing so, the HSC distinguished two U.S. Supreme Court cases. In Palmer v. Hoffman, 318 U.S. 109 (1943), the SCOTUS held that a signed statement made after a railroad accident was not conducted in the regular course and was inadmissible hearsay. Id. at 113-14. The signed statement, according to the HSC, was "inadmissible because they were created in response to a[n] historical occurrence, and in anticipation of litigation on that specific incident. Since they were created with the motivation of prevailing against a particular party, their trustworthiness was inherently questionable." The HSC also distinguished Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S.Ct. 2527 (2009), where the SCOTUS held that sworn statements by lab analysts were not made in the course of a regularly conducted activity. Id. at 2539-40. The SCOTUS explained that these statements were not traditional business records because they were "a record for the sole purpose of providing evidence against a defendant" and were "prepared specifically for use at [Melendez-Diaz's] trial[.]" Id.

According to the HSC, this is not signed statement ala Palmer nor an affidavit like Melendez-Diaz because the speed check card was not created specifically for the prosecution of Fitzwater. The HSC characterized the speed check card as a document created as the result of a regularly conducted test. See State v. Ofa, 9 Haw. App. 130, 135-36, 828 P.2d 813, 816-17 (1992).

What if You're in the Business of Creating Evidence? "Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman made that distinction clear." Melendez-Diaz, 129 S.Ct. at 2539. The HSC does not seem to dispute this rule. Instead, it distinguishes the SCOTUS cases on the grounds that the document here was created for a more general purpose than the evidence for use at Fitzwater's trial--even though it was clear that these kinds of documents were created with an understanding that they would be used in speeding prosecutions. Does this mean that a document can be created in the regular course and be admissible so long as it was not created for the single prosecution?

Laying the Foundation under HRE Rule 803(b)(6). A record can be authenticated by either the testimony of a custodian, "a qualified witness," or by certification pursuant to the rules of evidence or statute. HRE Rule 803(b)(6). The HSC noted that a "qualifying witnesses" need not possess personal knowledge about the record itself. The qualifying witness must be familiar "with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business." Weinstein's Federal Evidence § 803.08[8][a]. Here, Officer Ah Yat was a "qualifying witness" that could establish the necessary foundation.

The proponent of the record must establish (1) that the record evidences "acts, events, conditions, opinions, or diagnoses" (2) that the record was "made in the course of a regularly conducted activity"; and (3) the record was made "at or near the time" of the acts recorded. A. Bowman, HRE Manual § 803-3[5][B]. "The record must also survive the discretionary untrustworthiness exclusion of the rule." Id.

A Record is "Made in the Course of a Regularly Conducted Activity" by Incorporation and Reliability. The issue in this case, according to the HSC, was whether the prosecutor established that the speed check card was "made in the course of a regularly conducted activity." Relying on primarily federal cases, the HSC held that "when an entity incorporates records prepared by another entity into its own records, they are admissible as business records of the incorporating entity provided that it relies on the records, there are other indicia of reliability, and the requirements of HRE Rule 803(b)(6) are otherwise satisfied." See Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1344 (Fed. Cir. 1999). The HSC concluded that the record showed that the prosecution established that the card had been incorporated into HPD's own records, but the prosecution failed to show any other indicia of reliability. The HSC specifically stated that Officer Ah Yat's testimony did not establish "that anyone at Jack's was under a business duty to accurately calibrate the vehicle's speedometer and to record the results, or that there are other reasons to conclude the card was reliable." Thus, the district court erred in admitting the speed check card.

Proving Reliability . . . So how do you prove that there was indicia of reliability? The HSC left a big hint in this case. It seems that the proponent must show that the entity creating the document--Jack's Speedo--had a reason to be accurate. This can be a business duty or subjection to criminal penalties if they submit false claims. Air Land Forwarders, Inc. v. United States, 172 F.3d at 1343-44. But a common indicia of reliability, according to the HSC, arises when the creating entity made the record out of a contractual obligation. White Indus. v. Cessna Aircraft Co., 611 F.Supp. 1049, 1060 (W.D. Mo. 1985); People v. Markowitz, 721 N.Y.S.2d 758, 761 (N.Y. Sup. Ct. 2001). The HSC pointed out that in this case a contractual relationship between HPD and Jack's Speedo for the performance and documentation of the tests would have been "a significant factor."

Confrontation Clause not Violated by the Admission of the Speed Check Card. Although there was no reason to rule on the constitutional issue, the HSC felt a there was a need to provide guidance and prevent "serious judicial mistakes" in the future. Kapuwai v. City and County of HNL, 121 Hawai'i 33, 42, 211 P.3d 750, 759 (2009). The "accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. The confrontation clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

The Confrontation Clause only applies to "testimonial" hearsay. Davis v. Washington, 547 U.S. 813, 821 (2006). Nontestimonial hearsay may be permitted under hearsay exceptions. Id.

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 822. Later, the SCOTUS held that affidavits prepared in anticipation of litigation were barred by the Confrontation Clause because they were in that "core class of testimonial statements." Melendez-Diaz v. Massachusetts, 129 S.Ct. at 2532, 2542.

Here, the HSC held that the speed check card was not prepared in anticipation of litigation of Fitzwater and was nontestimonial in nature. There was no constitutional violation.

Justice Acoba's Concurrence and Dissent. Justice Acoba concurred in the result only. He agreed with the majority that there was "an absolute failure of proof as to what test was employed to assess the accuracy of the speedometer and as to the reliability of that test[.]" This failure of proof is determinative. Justice Acoba believed that the analysis should have ended there because "it is unwise to decide issues beyond that determination[.]" Justice Acoba analyzed the foundation-of-calibration issue and wrote that the remainder of the opinion was dicta and advisory.