Monday, January 31, 2011

Defaulting Parental Rights: a Harsh, Drastic (and Erroneous) Sanction

In re TW (ICA January 31, 2011)

Background. The Department of Human Services filed a petition for temporary foster custody over TW and away from the child's mother on the grounds that the mother admitted to leaving her eight-month-old child with a seventeen year old babysitter from Friday afternoon to Sunday morning so that the mother could finish her community service work. The DHS concluded that the seventeen year old was not an appropriate caregiver. The police took away the child and put the child in the custody of DHS.

The mother appeared with counsel at the hearing on the petition and demanded a trial. The family court set a date for trial. At a later hearing, the mother presented evidence in support of her opposition to the petition. At the end of the trial, the family court sustained the petition and ordered the implementation of a family service plan. The family court ordered the mother to appear for the review hearing roughly six months later. At that review hearing, the mother appeared and DHS noted that she had complied with her end of the terms and conditions of the family service plan. The family court ordered that the plan be continued for another four months to March 19, 2009. The family court continued the review hearing again on June 9, and November 17, 2009. The mother appeared for every hearing. The review was continued to December 22, 2009.

On Dec. 16, DHS filed a motion for permanent custody of the child. The hearing on the motion was set prior to the fourth review hearing. A copy of the motion sent through certified mail to the mother's attorney. The mother did not appear at the December 22, 2009 hearing. DHS requested that the mother be defaulted and that the family court grant the motion for permanent custody. The mother's counsel objected. Counsel told the family court, "I don't know where [she] is. She's usually here early. She's been coming to every hearing. I did not get the [motion], so I did not send it to her." The family court defaulted the mother and granted the motion, and awarded DHS permanent custody. On January 7, 2010, the mother filed a motion to set aside the default. The family court denied the motion. The mother appealed.

Default Judgment: the Ultimate Sanction. The "drastic sanctions of dismissal and default judgment are authorized only in extreme circumstances." W.H. Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut Co., 8 Haw. App. 354, 361, 802 P.2d 1203, 1207 (1990). They are typically not favored "because they do not afford parties an opportunity to litigate claims or defenses on the merits." In re Genesys Data Technologies, Inc., 95 Hawai'i 33, 40, 18 P.3d 895, 902 (2001). The ICA analogized this default sanction with dismissals as a sanction for discovery violations. In that case, dismissal is "appropriate only as a last resort, or when less drastic sanctions would not ensure compliance with a court's orders[,]" Long v. Long, 101 Hawai'i 400, 405-06, 69 P.3d 528, 533-34 (App. 2003), and reserved for "willful or contemptuous or otherwise opprobrious behavior." Weinberg v. Dickson-Weinberg, 123 Hawai'i 68, 77, 229 P.3d 1133, 1142 (2010). It is also based on five factors: "(1) the public's interest in the expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the party moving for sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Id. at 71, 229 P.3d at 1136.

There's more to life than Money . . . The ICA noted that sanctions and default judgment as a sanction for misconduct or noncompliance usually arise out of civil and divorce actions involving money and property. Here, however, the issue relates to a mother's parental rights so, according to the ICA, the "[c]oncerns over the harshness of the severe sanction of default . . . are heightened[.]" Parents have "a substantive liberty interest in care, custody, and control of their children protected by the due process clause" in the Hawai'i Constitution. In re Doe, 99 Hawai'i 522, 533, 57 P.3d 447, 458. These rights "cannot be denied without an opportunity for [the parents] to be heard in a meaningful time and in a meaningful manner." Id. After all, "parental termination decrees are among the most severe forms of state action[.]" M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996).

Default Judgment was an Abuse of Discretion. The ICA held that the family court abused its discretion in granting DHS's motion for default judgment. The mother appeared in every court hearing but one during an 18-month period. She challenged the pleadings against her and presented evidence at trial. According to the ICA, the hearing she did miss was not a hearing to determine whether she was a fit parent. It was a pre-hearing to determine a date for the evidentiary hearing on the motion for custody. The default, according to the ICA, was "a harsh and drastic sanction of default . . . based on [a] single non-appearance." As a result, she lost the care, custody, and control of her child without an opportunity to litigate the issue. The case was remanded without hearing the rest of the mother's points of error.

A Bright Line Rule? The ICA held that the family court abused its discretion in granting a default against a parent and terminating her rights to her child based on a single non-appearance in court. Why? At first, the ICA analogized this default to defaults based on a violation of discovery rules. It even outlined the five factors to be considered in weighing what kind of sanction for discovery violations would be "commensurate with the offense[.]" Weinberg v. Dicksen-Weinberg, 123 Hawai'i at 77, 229 P.3d at 1142.

The ICA did not apply the five Weinberg factors. Weinberg and almost all of the cases addressing dismissal sanctions for discovery violations revolved around "money and property." This, on the other hand, dealt with a very important fundamental interest: a parent's right to conceive, raise, and control his or her child. This right "cannot be denied without an opportunity for them to be heard at a meaningful time and in a meaningful manner." In re Doe, 99 Hawai'i at 533, 57 P.3d at 458. Defaulting the mother and granting DHS's motion for custody without a hearing divested the mother of her "parental rights . . . without affording [her] the opportunity to contest the DHS's" motion. That--and not the five factor analysis--was the ICA's basis for reversing the family court. This implies that fundamental rights should not be defaulted and that the five factors are reserved for the majority of civil cases--litigation over "money and property."

Money and Property: a side note. The conjunction in the ICA's phrase "money and property" is troublesome. As Justice John Paul Stevens wrote, "Money is property; it is not speech." Nixon v. Shrink Missouri Gov't, 528 U.S. 377 (2000) (Stevens, J., concurring.).

Tuesday, January 18, 2011

Political Questions: all six or just two?

OVERRULED (in part)!

Nelson v. Hawaiian Homes Commission (ICA January 12, 2011)

Background. Richard Nelson and six others filed a lawsuit against the State seeking declaratory and injunctive relief. In their complaint, the Plaintiffs alleged that there were thousands of people on the waiting lists for Hawaiian Home Lands lots and that some have waited for decades. Plaintiffs also alleged that the State did not appropriate any funds from the general revenue to the operating budge for the Department of Hawaiian Home Lands (DHHL) until 1987. In 1994, the legislature enacted a law authorizing payment to DHHL of $30 million per year for 20 years. However, between 1989 through 2007, the State funding for the DHHL never exceeded 0.5% of the State budget. The Plaintiffs argued that the Hawai'i Constitution required funding for the DHHL and that as trustees, the Hawaiian Home Commission breached its fiduciary duty in not seeking appropriations from the legislature. The circuit court granted the State's motion for summary judgment and concluded that the political question doctrine prevented the lawsuit from progressing.

The Hawai'i Constitution. Before its amendment in 1978, the Hawai'i Constitution stated that "[t]he proceeds and income from Hawaiian home lands shall be used only in accordance with the terms of [the Hawaiian Homes Commission] Act, and the legislature may, from time to time, make additional sums available[.]" Haw. Const. Art. XII, Sec. 1. In 1978, this section was amended:

The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects . . .; (4) the administration and operating budget of the department of Hawaiian home lands . . . by appropriating the same in the manner provided by law.

The ICA, therefore, had to examine whether funding by the legislature or the State constituted "sufficient sums" could be reviewed by the court or whether it was a political question.

The six Political Questions. Political questions arise in different ways:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 170, 737 P.2d 446, 455 (1987). Any one of these six renders a case a political question. Id.

Answering all six in the Negative. First, the ICA examined if the text of the provision shows a " constitutional commitment of the issue to a coordinate political department[.]" According to the ICA, the provision was clearly directed toward the legislature. However, the amendment clearly departed from the old language of the provision that gave the legislature unfettered discretion by stating it must provide "sufficient sums" for particular purposes. Courts cannot "ascribe to the constitutional framers the intent to enact laws devoid of any real substance and effect." In re Water Use Permit Applications, 94 Hawai'i 97, 142, 9 P.3d 409, 454 (2000). According to the ICA, if there was no way to determine "sufficient sums," then the amendment would be essentially the same as the old language.

Judicially Discoverable and Manageable Standards were Present. The ICA disagreed with the circuit court and held that there were indeed judicially discoverable and manageable standards in resolving Plaintiff's issue. The ICA delved deeply into the proceedings of the 1978 Constitutional Convention and concluded that the amendment was designed to end DHHL's practice of leasing its lands "in order to generate revenues to support its administrative and operating budget." Comm. Rep. No. 56, at 631. In doing so, this would make more lands available for settlement and beneficiaries of the DHHL program. Convention delegates also pointed out that the term "sufficient sums" were defined in the general plan, which was approved by the Hawaiian Homes Commission and signed into law by Governor Ariyoshi in 1976.

The Court Need not make Policy Decisions in Resolving this case. The ICA held that in resolving what constituted "sufficient sums," courts are not making policy decisions. The General Plan of 1976 set forth the goals and objectives in the DHHL. The plan itself states that the goals and objectives must be reevaluated every five years. According to the ICA, the DHHL, therefore, has a fiduciary duty to reevaluate its goals and objectives and request that the legislature provide "sufficient sums" to meet these goals and objectives. Ahuna v. DHHL, 64 Haw. 327, 337-40, 640 P.2d 1161, 1168-69 (1982).

No Disrespect, Politics, or Embarrassment Either. The ICA held that the other three political questions were not in this lawsuit either. The court was not "disrespecting" the legislature in interpreting the term "sufficient sums" under the constitution. The "courts, not the legislature, are the ultimate interpreters of the Constitution." State v. Nakata, 76 Hawai'i 360, 370, 878 P.2d 699, 709 (1994). The issue in this case does not require "adherence to a political decision" either. Finally, there is no embarrassment in government due to different pronouncements by various departments on the question. According to the ICA, DHHL has a duty to seek funds from the legislature. The legislature is obligated to provide "sufficient sums" available. If there is a dispute as to whether these sums are sufficient, the courts must decide that.

Chief Judge Nakamura's Concurrence. Chief Judge Nakamura agreed with the majority, but decided to write separately in order to narrow the analysis. Rather than examine each of the six possible political questions, Chief Judge Nakamura limited himself to analyze the two political questions argued by the State: the lack of judicially discoverable and manageable standards for resolving the issue; and the impossibility of deciding the claims without an initial policy determination of a kind clearly for nonjudicial discretion. According to Chief Judge Nakamura, the State argued that there were no judicial standards available to calculate what funding by the legislature constituted "sufficient sums" pursuant to the Hawai'i Constitution. Chief Judge Nakamura rejected this argument. The history of amendments behind this particular provision in the constitution signify some intention to limit the discretion of the legislature. Just because there is no indication exactly how much money is "sufficient" does not render the entire case nonjusticiable. As Chief Judge Nakamura wrote, "[w]hat is necessary for a court to fulfill its role is not precision, but discoverable and manageable standards."

Six to two. There are six different political questions that would render a lawsuit or dispute nonjusticiable. The defendants in this case only raised two. However, the majority went through all six--even though it was not part of the State's argument. Does this matter? Probably not. Does it provide guidance for future litigation? Even less so. Some of the analyses by the majority was only a single paragraph or two.

Sunday, January 2, 2011

HSC OK's Paroling Authority's Retroactive Application of its own Decision

Garcia v. State (HSC December 21, 2010)

Background. David Garcia pleaded guilty to five counts of robbery in the 2d degree. He was sentenced to ten years with a mandatory minimum of three years, four months for the first count. For the remaining four counts, he was sentenced to ten years running concurrently. However, count I would run consecutively with counts II-IV. The Hawai'i Paroling Authority (HPA) fixed a minimum term for each count at seven years. Garcia received credit for each of the five counts. After that, the HSC held in State v. Tauiliili, 96 Hawai'i 195, 29 P.3d 914 (2001), that pursuant to HRS § 706-671, jail credit for consecutive terms must be given in the aggregate, not for each term. The Department of Public Safety (DPS) issued a written policy effective January 1, 2005, for calculating credit in light of Tauiliili. The HPA recalculated Garcia's credit. Garcia filed a petition pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 40. The petition was denied the by the circuit court, and the ICA affirmed.

The Policy (and the Decision Itself) is not an Ex Post Facto law. "No State shall . . . pass any . . . ex post facto Law.[.]" U.S. Const. Art. I § 10. A law is ex post facto when it "aggravates a crime, or makes it greater than it was when committed[.]" Miller v. Florida, 482 U.S. 423, 429 (1987). The provision is intended "to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation." Id. This "constitutional prohibition against ex post facto measures applies only to legislative enactments." State v. Jess, 117 Hawai'i 381, 402, 184 P.3d 133, 159 (2008). The HSC noted that it had never determined whether administrative rules, policies, or regulations constitute "laws" implicating the Ex Post Facto Clause. Here, however, the "law" is not the policy, but HRS § 706-671 as interpreted by Tauiliili. The HSC held the HPA recalculated the jail credit "as it should have been under the sentence. Therefore, any change in DPS's or HPA's internal policies regarding the calculation of presentence credit is irrelevant for purposes of an ex post facto analysis."

Tauiliili's Tautology? The HSC appears to have held that because it, an appellate court, rendered a decision that aggravated or adversely affected Garcia's sentence, it cannot be considered a "law" under the Ex Post Facto Clause. But is that merely a matter of characterization? The statute controls the credit, and a statute is exactly what the ex post facto Clause is intended to target. So what difference does it make if the statute has now been interpreted to the detriment of Garcia? Wouldn't that cut closer to an invocation of the constitutional protection? Does this case stand for the proposition that when an appellate court interprets a statute, that interpretation of the statute does not call for an ex post facto analysis? Perhaps so.

Retroactive Application does not Violate Due Process Clause Either. Having held that the Ex Post Facto Clause was inapplicable, the HSC examined whether the retroactive application of Tauiliili was proper. The "judicial reformation of the law violates the principle of fair warning, and hence must not be given retroactive effect, where such reformation is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue." State v. Jess, 117 Hawai'i at 403, 184 P.3d at 160. (quotation marks omitted.). The HSC held that the decision in Tauiliili was neither a reformation of the law nor was it unexpected. First, this was not a "reformation." Tauiliili was the first time the HSC interpreted HRS § 706-671 and it simply reiterated "what the statute meant before as well as after the decision of the case giving rise to that construction." Rivers v. Roadway Exp., Inc., 511 U.S. 298, 312-13 (1994). Second, even if it was, Tauiliili was not unexpected. According to the HSC, the commentary for HRS § 706-671 and an accompanying regulation, HAR § 12-1204-17, "suggest" that presentence credit should be given only once to the aggregate of the consecutive sentences.

Anticipating the Court? A due process violation arises here when the reformation of the law is "unexpected and indefensible[.]" The HSC held that Tauiliili would not be unexpected and indefensible because the commentary and the language of the statute clearly anticipated its holding. But Tauiliili was the first time the HSC interpreted HRS § 706-671. And on top of that, there was even some evidence--or at least the argument--that the HPA often credited per count and not in the aggregate. Does this mean that statutes which have never been interpreted by courts but are plain in their meaning should be unexpected for purposes of this analysis?

Retroactive Application was Proper too. Although "judicial decisions are assumed to apply retroactively," it is not automatic. State v. Izekawa, 75 Haw. 210, 220, 857 P.2d 593, 597 (1993). When a decision announces a "new rule," "this court may, in its discretion, determine that the interests of fairness preclude retroactive application of the new rule[.]" State v. Ketchum, 97 Hawai'i 107, 123 n. 26, 34 P.3d 1006, 1022 n. 26 (2002). Thus, retroactivity is assumed unless a "new rule" is announced. State v. Jess, 117 Hawai'i at 400, 184 P.3d at 152. A "new rule" arises "only when the law changes in some respect that an assertion of nonretroactivity may be entertained, the paradigm case arising when a court expressly overrules a precedent upon which the contest would otherwise be decided differently and by which the parties may previously have regulated their conduct." Id. at 400, 180 P.3d at 152. Here, the HSC held that Tauiliili did not hold anything new; it merely "confirmed the law as it existed prior to that decision."

Even if it was a new rule, it still Should Apply. Even if it was a new rule, the HSC concluded that it should apply retroactively. Whether a court should apply a new rule retroactively hinges on a number of factors: (1) "the purpose to be served by the newly announced rule"; (2) how much law enforcement relied on the old law; and (3) "the effect on the administration of justice of a retroactive application of the new standards." State v. Santiago, 53 Haw. 254, 268, 492 P.2d 657, 665 (1971). Additional factors include "[p]rior history of the rule in question, its purpose and effect, and whether retroactive operation will further or retard its operation; interests in the administration of justice and the integrity of the judicial process." Russell v. Blackwell, 53 Haw. 274, 277, 492 P.2d 953, 956 (1972). The HSC applied these Santiago factors and concluded that "any alleged inequity resulting from the recalculation of [Garcia's] sentence does not outweigh the other Santiago factors."

Dicta Alert! The HSC's analysis of Garcia's petition was thorough. First, it held that there was no violation of the Ex Post Facto Clause because it did not apply to its judicial decision. Then it held that the retroactive application of the decision did not violate the Due Process Clause because it cannot be considered a "new law." It also "held" that even if it was a new law, it still is fine because this "new law" was not unexpected and indefensible. That part, it would seem, is simply obiter dictum. Then there was the issue of the retroactive application itself. The HSC held that it was not error to apply it retroactively because again it was not really a "new rule." And even if it was, the factor-based analysis cut toward retroactive application. But that too seems to be dictum.