Tuesday, September 28, 2010

Remanding for Conviction on the Lesser-Included Offense not Always so

State v. Bullard (ICA September 27, 2010)

Background. Bullard was prosecuted for excessive speeding. HRS § 291C-105(a)(1) and (a)(2). At trial, Officer Corinne Rivera testified that she paced Bullard's vehicle in her own "subsidized" police vehicle--a Toyta 4Runner. Officer Rivera testified that her Toyota gets an annual speed check at a place called "Roy's." Over Bullard's objection, the district court admitted Officer Rivera's speed check card from Roy's Kalihi Automotive Center & Towing. Officer Rivera testified that Bullard was going 91 m.p.h. The district court took judicial notice that that stretch of highway had a speed limit of 55 m.p.h. Bullard testified in his own defense. He admitted to speeding, but not excessive speeding. The district court found Bullard guilty of excessive speeding.

The Error Conceded. Bullard and the prosecution agreed that the district court erred in admitting the speed card check because the prosecution failed to lay sufficient foundation to support the admission of the speed card check and, without that, there is insufficient evidence supporting the excessive speeding conviction. The ICA also agreed. See State v. Fitzwater, 122 Hawai'i 354, 227 P.3d 520 (2010).

Retrial v. Lesser-Included Conviction. The sole issue in this case was what to do with Bullard after concluding that there was insufficient evidence to support the excessive speeding conviction. Bullard argued that the case should be remanded for retrial of the lesser-included offense of regular speeding. "[R]emanding a case for retrial on lesser included offenses following an appellate determination that insufficient evidence to support a conviction of a greater offense was presented at trial does not offend the double jeopardy clause" of the state and federal constitutions. State v. Malufau, 80 Hawai'i 126, 136, 906 P.2d 612, 622 (1995). The prosecution, however, argued that because there was sufficient evidence supporting regular speeding, the district court should enter judgment for that offense without trial.

The Appellate Court has the Authority to Direct Entry of a Lesser-Included Conviction. The ICA concluded that appellate courts have the power to direct entry of judgment of conviction for the lesser included offense. "[T]here is no need to retry a defendant for a lesser included offense when the elements of the lesser included offense were necessarily proven to the jury beyond a reasonable doubt in the course of convicting the defendant of a greater offense." State v. Haynie, 867 P.2d 416, 418 (N. M. 1994). According to the ICA, the HSC in Malufau "echoed this rationale[.]"

But when the Error is Based on Improper Evidence Admitted at Trial, Something more is Required before Direct Entry of the Conviction. This, however, depends on the trial court's error. According to the ICA, when the trial court erred in admitting evidence. It is not enough to simply determine whether there was sufficient evidence for the lesser-included offense. "Instead, we analyze whether despite the sufficiency of the properly admitted evidence, there is a reasonable possibility that the trial court's erroneous admission of evidence might have contributed to the defendant's conviction." See State v. Machado, 109 Hawai'i 445, 452-53, 127 P.3d 941, 948-49 (2006). The ICA further explained that "the potential effect of the erroneous admission of evidence on the lesser included offense must be determined before entry of judgment on the lesser included offense is appropriate. Otherwise, the appellate court may be directing entry of judgment on the lesser included offense in a case where the erroneous admission of evidence prejudiced the defendant's rights as to both the greater offense and the lesser included offense."

Here, it was Harmless Beyond a Reasonable Doubt. The ICA held that the erroneous admission of the speed card check was harmless beyond a reasonable doubt for the lesser-included offense of speeding. Officer Rivera's testimony and Bullard's admission showed sufficient evidence that Bullard was speeding. Given that evidence, the ICA held that there is no reasonable possibility that the admission of the speed check card contributed to the district court's finding that Bullard drove over the speed limit.

Regular Speeding is a Lesser-Included "Offense." Regular speeding is not a crime. It is a traffic violation. Here, the ICA operated under the assumption that the traffic infraction was a lesser-included offense. The ICA rejected Bullard's argument that a traffic infraction cannot be a lesser-included offense. The main reason why the ICA rejected the argument was because the HSC had no problem determining that the traffic infraction was a lesser included offense in State v. Fitzwater. Bullard conceded that the HSC rejected this claim and the ICA "is not at liberty to overturn a decision of the Hawai'i Supreme Court." The ICA also noted, however, that "Bullard provide[d] no persuasive explanation for why the analysis to lesser included criminal offenses should not also apply to lesser included traffic infractions."

Thursday, September 9, 2010

Agency Hears Claims First, Constitutional Claims come Later

HGEA v. Lingle (HSC September 8, 2010)

Background. Governor Lingle issued Executive Order 09-02, which ordered certain State employees to be furloughed for 72 days over a two-year period; their pay would be automatically adjusted. Their union, the Hawai'i Government Employees Association, filed a complaint in the circuit court seeking declaratory relief. HGEA argued that the governor could not unilaterally impose furloughs because it impinges on their right to collective bargaining, which is protected by the Hawai'i Constitution. Haw. Const. Art. XIII, sec. 2 as well as their rights under HRS chapter 89. HGEA also filed a motion for a preliminary injunction. The circuit court granted the motion in part and concluded that the Order did infringe upon the worker's right to collective bargaining. The circuit court also concluded that the Order unilaterally--and therefore, unlawfully--alters the workers' wages. The circuit court rejected Lingle's argument that the Hawai'i Labor Relations Board (HLRB) retains exclusive jurisdiction because the circuit court has jurisdiction to hear constitutional claims. Lingle appealed. The case was transferred to the HSC.

The case may be moot, but the Public Interest Exception Applied. The HSC--in a footnote---agreed with Justice Acoba's dissent that the litigation over the furlough problem has been settled thereby making this case moot. However, both Justice Acoba and the HSC majority agreed that the public-interest exception applied because "the question involved affects the public interest and an authoritative determination is desirable for the guidance of public officials[.]" Doe v. Doe, 116 Hawai'i 323, 327, 172 P.3d 1067, 1071 (2007).

Hawai'i Labor Relations has Exclusive Jurisdiction to hear Labor-Related Claims. The HLRB has "exclusive original jurisdiction" to hear "[a]ny controversy concerning prohibited practices[.]" HRS § 89-14. That does not prohibit, however, proceedings in the circuit court pursuant to HRS § 89-12(e) or judicial review of the HLRB's orders. Id. The HSC held that HRS § 89-14 confers original exclusive jurisdiction over this case with the HRLB. The HSC relied on the legislative history of the statute; particularly when the Legislature amended HRS § 89-14 to its current language in reaction to Winslow v. State, 2 Haw. App. 50, 625 P.2d 1046 (1981), where the ICA held that the HLRB (formerly known as the Hawai'i Public Employee Relations Board) did not have exclusive jurisdiction. Id. at 56, 625 P.2d at 1051. According to the HSC, "the legislature clearly intended for the HLRB to have exclusive original jurisdiction over prohibited practice complaints" and that Winslow is incorrect.

HGEA Alleged a Prohibited-Practice Claim in its Complaint. Prohibited practices for public employers include the refusal "to bargain collectively in good faith with the exclusive representative[.]" HRS § 89-13(a)(5). According to the HSC, HGEA's complaint alleged that Lingle's imposition of furloughs circumvented the collective bargaining process because it automatically adjusts workers' wages and hours--thereby affecting the collective bargaining agreement. "Generally, pleadings should be construed liberally and not technically." Au v. Au, 63 Haw. 210, 221, 626 P.2d 173, 181 (1981). The HSC held that even though the HGEA did not use the words "prohibited practice" in its complaint, it essentially asserted a prohibited-practice claim, which is within the exclusive original jurisdiction of the HRLB.

No Plain-Language Analysis. "[T]he fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect its plain and obvious meaning." Awakuni v. Awana, 115 Hawai'i 126, 133, 165 P.3d 1027, 1034 (2007). Here, the HSC construed HRS § 89-14 in an unusual way. It first recited the statute, then it relied on the legislative history to determine that the legislature intended the statute to confer exclusive original jurisdiction over the HLRB. But HRS § 89-14 specifically states just that. It would seem that the language of the statute was plain and unambiguous. So why did the HSC delve into legislative history for support?

Liberal Construction of Pleadings . . . Against Whom? Pleadings must be construed liberally. They must also be "construed as to do substantial justice." HRCP Rule 8(f). The liberal-construction rule is usually raised in opposition to a defendant's motion to dismiss for failure to state a claim. Plaintiffs typically rely on this rule to move beyond the pretrial motions stage. But this case shows that the rule can also work against the movant. Here, the HSC construed the plaintiff's pleading against the plaintiff.

This isn't the First Time this has Happened . . . This case seems eerily similar to Travelers Ins. Co. v. Hawaii Roofing, Inc., 64 Haw. 380, 641 P.2d 1333 (1982), when an insurance company brought a declaratory judgment in the circuit court rather than appealed an agency decision to the Board of Labor Appeals. Justice Edward Nakamura's pithy statement could easily apply to the HSC's analysis in this case: "The attempt at circumvention of statutory dictates is by no means novel; nor is our response unique." Id. The HSC never mentioned Travelers.

But what about the Constitutional Questions? Show some Restraint. "A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." City and County of Honolulu v. Sherman, 110 Hawai'i 39, 56 n. 7, 129 P.3d 542, 559 n. 7 (2006). The HGEA asserted--and the circuit court agreed--that the furloughs infringed upon their workers' constitutional right to collective bargaining. However, the HLRB never heard the statutory claims--that the furloughs constituted a prohibited labor practice. Thus, the HSC held that there was no need for the circuit court to go ahead and "reach[ the] constitutional questions without first giving the HRLB the opportunity to address" the prohibited-practice claims. Had the HLRB determined that the furloughs were valid under HRS chapter 89, then the circuit court could examine whether it was constitutional. According to the HSC, the circuit court did not have to address the constitutional issue just yet.

Expediency is not Enough to Justify Circuit Court Action. The HSC also rejected the argument that the exigency of the furlough plan was not enough of a reason to circumvent the HLRB and seek relief in the circuit court. "[E]ven in the absence of constitutional restrictions, [courts] must still weigh the wisdom, efficacy, and timeliness of an exercise of their power before acting, especially where there may be an intrusion into areas committed to other branches of government." In re Attorney's Fees of Mohr, 97 Hawai'i 1, 9-10, 32 P.3d 647, 655-66 (2001).

Justice Acoba's Dissent. Justice Acoba agreed that the case was moot, but the public interest exception applied. He disagreed with the majority that there was no jurisdiction to proceed. Justice Acoba wrote the HGEA did not need to wait for the HLRB to render a decision before proceeding to the circuit court on a constitutional issue. The complaint challenges the constitutionality of the governor's furlough plan. Public employees have "the right to organize for the purpose of collective bargaining as provided by law." Haw. Const. Art. XIII, sec. 2. That includes "the ability to engage in negotiations concerning core subjects such as wages, hours, and other conditions of employment." UPW v. Yogi, 101 Hawai'i 46, 53, 62 P.3d 189, 196 (2002); see also Malahoff v. Saito, 111 Hawai'i 168, 140 P.3d 401 (2006). HGEA specifically pled a violation of this constitutional right to organize. And because the circuit court undoubtedly had jurisdiction to hear constitutional issues, the case properly proceeded.

Thursday, September 2, 2010

Attorneys can Collect Attorneys' Fees in Action for Collection of Attorneys' Fees

David Hall, LLC v. Laroya (ICA September 2, 2010)

Background. The David Hall law firm is a law corporation with a single employee: David Hall. Hall agreed to represent James Laroya in exchange for fees. Laroya made no payments. The Hall firm initiated a complaint in the district court seeking $8,601.92 in fees, costs, and taxes for the services rendered to Laroya. The Hall firm then filed a proposed default judgment requesting a total $14,611.55, which included $2,632.50 for attorneys fees in litigating the instant case. The district court denied the motion and noted that the Hall firm could not collect fees "as you are essentially representing yourself." Eventually, however, default judgment was entered, which awarded $12,438.73 ($8,601.92 in fees, $2,821.84 for interest, $120 for costs, and $894.97 in other costs). It did not include the fees for the collection lawsuit. The Hall firm appealed.

The Assumpsit Statute. "Generally, under the 'American Rule,' each party is responsible for paying for his or her own litigation expenses." TSA Int'l Ltd. v. Shimizu Corp., 92 Hawai'i 243, 263, 990 P.2d 713, 733 (1999). But fees can be awarded "to the prevailing party where such an award is provided for by statute, stipulation, or agreement." Id. HRS § 607-14 is a statutory exception. "In all courts, in all actions in the nature of assumpsit . . . there shall be taxed as attorneys' fees, to be paid by the losing party and to be included in the sum for which execution may issue, a fee that the court determines to be reasonable . . . . The court shall then tax attorneys' fees . . . to be paid by the losing party; provided that this amount shall not exceed twenty-five per cent of the judgment." Id.

"Assumpsit is a common law form of action which allows for the recovery of damages for non-performance of a contract, either express or implied, written or verbal, as well as quasi contractual obligations." Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 121-22, 176 P.3d 91, 120-21 (2008).

This is in the Nature of Assumpsit. According to the ICA, because Laroya promised to pay legal services, the action to collect those fees owed is "in the nature of assumpsit." HRS § 607-14 is quite broad. "In all courts, in all actions in the nature of assumpsit[,]" the court "shall tax attorneys' fees[.]" That, according to the ICA, indicated that attorneys' fees are recoverable in an action for the collection of, well, attorneys' fees. In Middleditch v. Kawanakoa, 16 Haw. 803 (Terr. 1905), the Supreme Court of the Territory of Hawaii held that "[t]he fact that the attorney in this case is the plaintiff does not deprive him of the statutory right to attorneys' fees." The ICA held that there was no meaningful distinction between the individual attorney and his or her law firm. Based on the case law and the language of HRS § 607-14, the ICA held that the attorney's law firm could collect attorneys' fees in litigating an action for unpaid attorneys' fees.

An Interesting Footnote . . . The ICA relied on Middleditch, an old case from volume 16 of the Hawai'i Reports. It quoted the case, but had no specific citation. Middleditch comes from a curious part of that volume titled "Decisions Announced without Opinions During the Period Covered by this Volume." In Lau v. Lopez, 112 Hawai'i 231, 145 P.3d 774 (App. 2006), the ICA relied on Middleditch because the Hawai'i Supreme Court relied upon other opinions from this strange section of volume 16. That was apparently good enough for the Lau court. But compounding the problem is Hawai'i Rules of Appellate Procedure (HRAP) Rule 35, which prohibits the use of any and all "unpublished" appellate dispositions prior to July 1, 2008. The ICA again found no problem relying on Middleditch because it "was a published decision in the Hawai'i Reports[.]" Does this mean that anything that is literally printed in the Hawai'i Reports is fair game? In doing so, the ICA seems to read HRAP Rule 35 quite literally--if it's literally printed in the book, it's fair game--even if it is printed under a curious title like "Decisions Announced without Opinions."

Is a not-Quite-Ambiguous Statute an Ambiguity? "It is a well-established rule of statutory construction that this court's foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself." Carlisle v. One (1) Boat, 119 Hawai'i 245, 256, 195 P.3d 1177, 1188 (2008). That rule is a tough one. "We cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts. We do not make or legislate or make laws." State v. Klie, 116 Hawai'i 519, 525, 174 P.3d 358, 364 (2007).

Here, the ICA never really stated that HRS § 607-14 is ambiguous. It used the phrase "to the extent that the statute is ambiguous." The ICA looked at the language of HRS § 607-14 as well as its long legislative history. On top of that, it turned to decisions by courts of other jurisdictions. But these aids are available in interpreting a statute only when the statute is ambiguous. "When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists." Fought & Co. v. Steel Eng'g and Erection, Inc., 87 Hawai'i 37, 45, 951 P.2d 487, 495 (1998). What is ambiguous about HRS § 607-14? The ICA never tells us. All that can be said is that the statute is broad. Perhaps the statute is so broad that it leads to uncertainty or indistinctiveness. But not here. The language may be broad, but it certainly seems plain: in all actions in the nature of assumpsit, all courts shall tax attorneys' fees. Then again, this is not the first time the plain-language rule has been fudged.