Saturday, April 30, 2011

District Court has no Jurisdiction to oust Housing Co-op Members

Hawaiian Properties, Ltd. v. Tauala (ICA April 28, 2011)

Background. HPL brought in the district court a complaint for summary possession against Tauala on the grounds that she had broken a "rental agreement" with HPL due to unpaid rent. Tauala filed a motion to dismiss on the grounds that she was a member of a housing co-op managed by HPL and had an ownership interest in the unit. Thus, she was not in a landlord-tenant relationship. HPL opposed and argued that she pretty much a tenant. The district court denied the motion and issued HPL a writ of possession. Tauala appealed.

District Court has Jurisdiction is Limited to Landlord-Tenant Disputes. District courts "shall not have cognizance of real actions, nor actions in which the title of real estate comes in question[.]" HRS § 604-5(d). HPL initiated a summary possession proceeding pursuant to HRS chapter 666. Summary possession is "an expedient remedy to restore a landlord to the possession of his [or her] premises when it is clear that the tenant holds nothing more than a possessory interest in the property." Queen Emma Found. v. Tingco, 74 Haw. 294, 304, 845 P.2d 1186, 1190-91. (1992). But when the lessee holds more than a mere possessory interest, the landlord-tenant relationship is more complex and "summary possession is ill-suited to protect the rights and determine the obligations of all parties with an interest[.]" Id.

Co-op Memberships: less than Fee Simple, but more than Mere Possessory Interest. The ICA observed that in this case it would at first seem as if Tauala had nothing more than a possessory interest and that she was indeed a tenant. While HPL "owned" the entire housing project, the co-op agreement reflected that Tauala, as a member of the co-op owned "a 1% stock-like interest" in the co-op. According to the ICA, Tauala's agreement showed that she had more than a possessory interest in the property. But it was unclear what that something was. The agreement is complicated and more than a short-term lease. The ICA agreed with that Tauala that the agreement gave her something more than a possessory interest, and held that the district court did not have jurisdiction to order the writ of possession. The circuit court had jurisdiction.

Resolving the Jurisdictional Split: Hawai'i in the Minority. The ICA, at the end of the opinion, noted a split among jurisdictions that have examined the relationship between co-op members and property managers. According to the ICA, only a minority have held that co-op members have something more than a mere possessory interest. Kadera v. Superior Court, 187 Ariz. 557, 931 P.2d 1067 (Ariz. App. 1997); Plaza Rd. Cooperative, Inc. v. Finn, 201 N.J. Super. 174, 492 A.2d 1072 (N. J. Super. App. Div. 1985); Kohler v. Snow Village, Inc., 16 Ohio App. 3d 350, 475 N. E. 2d 1298 (Ohio App. 1984). The majority of jurisdictions consider it a mere landlord-tenant relationship. Village Green Mut. Homes, Inc. v. Randolph, 361 Md. 179, 760 A.2d 716 (Md. 2000); Susskind v. 1136 Tenants Corp., 43 Misc. 2d 588, 251 N.Y.S.2d 321 (N.Y. City Civ. Ct. 1964); Quality Management Servs., Inc. v. Banker, 291 Ill. App. 3d 942, 685 N. E. 2d 367 (Ill. App. 1997); Brandywine Townhouses, Inc. v. Joint City-County Bd. of Tax Assessors, 231 Ga. 585, 203 S. E. 2d 222 (Ga. 1974). The ICA--apparently based on Queen Emma--adopted the minority view because it was "consistent with Hawai'i jurisprudence."

Non-Hawaiians have no Standing to Challenge Tax Exemptions for Hawaiian Homes Lessees

Corboy v. Louie (HSC April 27, 2011)

Background. Real property owners and paid their taxes to the State and all the Counties under protest. The taxpayers brought a complaint in the tax court alleging that the tax exemption for Hawaiian Homeland lessees and the Hawaiian Homes Commission Act (HHCA) of 1921 were unlawful. Essentially, the taxpayers argued that the tax exemption violated the Equal Protection Clause. The governments brought a motion for summary judgment. The motion was granted. The taxpayers appealed and the ICA affirmed.

The Taxpayers' Claim: tax Exemptions for Hawaiian Homes Lessees Violate the Equal Protection Clause. The HSC zeroed in on the actual claims brought by the taxpayers: that the exemptions pursuant to the HHCA and the HHCA itself violate the equal protection clause. The HSC noted that a challenge to the HHCA tax exemption is really a challenge to the requirement that only Native Hawaiians are eligible for the homestead leases and thus the exemption. The taxpayers argued that because only Native Hawaiians are eligible to receive the exemption, the exemption violates the federal constitution. According to the HSC, however, the tax exemption applies only to "original lessees" not Native Hawaiians. The HSC construed the taxpayers' challenge as a challenge to the lease eligibility provisions. The issue then became whether the taxpayers had standing to bring that challenge.

Taxpayers have No Standing Because no Injury. Standing focuses on "the party seeking a forum rather than on the issues he [or she] wants adjudicated. And the crucial inquiry in its determination is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his [or her] invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers on his [or her] behalf." County of Kauai ex rel. Nakazawa v. Baptiste, 115 Hawai'i 15, 26, 165 P.3d 916, 927 (2007). A party has a stake in the outcome based on the injury-in-fact test:

(1) has the plaintiff suffered an actual or threatened injury. . .; (2) is the injury fairly traceable to the defendant's actions; and (3) would a favorable decision likely provide relief for plaintiff's injury.

Sierra Club v. Dept. of Transp., 115 Hawai'i 299, 319, 167 P.3d 292, 312 (2007). The injury has to be "distinct and palpable to himself [or herself] as opposed to an alleged injury that is abstract or merely hypothetical." Mottl v. Miyahira, 95 Hawai'i 381, 389, 23 P.3d 716, 724 (2001). The injury also be related to "a recognized interest, as opposed to merely airing a political or intellectual grievance." Id. at 395, 23 P.3d at 730.

The HSC held that the first prong was not met and they lacked standing. None of the taxpayers had a recognizable interest. None of them applied for a homestead lease or showed any interest in applying. Furthermore, there is no indication that their interest would change if the challenged Native Hawaiian qualification was abolished.

Justice Acoba's Concurrence. Justice Acoba believed that the taxpayers had standing to challenge the tax exemptions in the HHCA. Taxpayer standing is different from the injury-in-fact test. It arises when (1) the challenged act is more than "mere irregularity" and "imperil[s] the public interest or work[s] public injury"; (2) the plaintiff must "allege loss in revenues resulting in an increase in plaintiff's tax burdens or to taxpayers in general[,]" and (3) absent a statute governing the suit, "demand upon the proper public officer to take appropriate action" is made "unless facts alleged sufficiently show that demand to bring suit would be useless." Iuli v. Fasi, 62 Haw. 180, 183-84, 613 P.2d 653, 656 (1980). According to Justice Acoba, all three prongs for taxpayer standing were met. First, the tax exemption is "inextricably tied to an ancestral requirement"--Native Hawaiian ancestry--and imperils the public interest or works public injury. Second, the taxpayers clearly showed a pecuniary loss in comparison to the tax burden on the homesteaders. Finally, the taxpayers paid under protest and demand was made to take appropriate action.

But Justice Acoba believed that because the HHCA is "subject to amendment or repeal only with the consent of the United States[,]" the United States must be made a party to the case. See Carroll v. Nakatani, 342 F.3d 934, 944 (9th Cir. 2003). The failure to name the United States warranted dismissal.

Friday, April 29, 2011

Order of Involuntary Dismissal with Prejudice a tall Order

Blaisdell v. State (HSC April 26, 2011)

Background. Richard Blaisdell was a prisoner in Saguaro Correctional Center in Eloy, Arizona. Prison officials took audio cassette tapes from his cell. Blaisdell filed a pleading titled "Motion For Court to Order Saguaro Prison Officials to Give Blaisdell His Legal Material Forthwith" in the circuit court. The pleading requested the return of his tapes. No one was served with the pleading. The circuit court interpreted the pleading as a civil complaint and denied the request without prejudice on the grounds that it failed to comply with HRCP Rule 65(b), which pertains to injunctive relief. Blaisdell then filed an "Emergency Motion for a T.R.O. and/or Preliminary Injunction" again seeking the return of the tapes in order to prevent officials from destroying the tapes. Blaisdell argued the tapes were evidence of prosecutorial misconduct in the case that lead to his incarceration. The motion was denied.

Blaisdell immediately appealed. The ICA dismissed his appeal because no final judgment had been issued. Blaisdell on two occasions moved the circuit court to issue a final judgment, but the circuit court did not respond. After Blaisdell filed a writ of mandamus to the HSC and after the HSC ordered the circuit court to issue a final judgment, the circuit court issued a final judgment in favor of the prison officials and dismissing all with prejudice. The circuit court never explained why it dismissed with prejudice. Blaisdell appealed again and the ICA affirmed.

Incomplete Service and no Summons Indeed Authorizes Dismissal . . . A complaint and summons must be served together. HRCP Rule 4(d). The summons must contain the name of the parties, be directed at the defendant, "state the time within which these rules require the defendant to appear and defend[,]" and notify the defendant that failure to appear will result in a default judgment. HRCP Rule 4(b).

The HSC concluded that Blaisdell did not comply with the summons requirements in HRCP Rule 4 and that service was incomplete. This noncompliance authorized the circuit court to deny Blaisdell's pleading. However, the "dismissal may be set aside and the action or claim reinstated by order of the court for good cause shown upon motion duly filed not later than 10 days from the date of the order of dismissal." HRCP Rule 41(b)(2).

. . . But with Prejudice? The HSC pointed out that an involuntary dismissal of a complaint with prejudice are disfavored and the threshold for doing so is set high. Dismissal with prejudice "cannot be affirmed absent deliberate delay, contumacious conduct, or actual prejudice[.]" Shasteen, Inc. v. Hilton Hawaiian Village Joint Venture, 79 Hawai'i 103, 107, 899 P.2d 386, 390 (1995). Without evidence of any one of these three elements, the dismissal is an abuse of discretion. Id. Dismissal with prejudice should be one of last resort and should not be the sanction where lesser sanctions could serve the interest of justice.

No Undue Delay and Actual Prejudice to Defendants. According to the HSC, none of the elements were present here. The HSC held that there was no undue delay or any actual prejudice. In fact, the pleadings suggest that Blaisdell was acting with urgency rather than undue delay. Any delay in this case, according to the HSC, cannot be attributed to Blaisdell. The circuit court did not enter judgment against him until the HSC ordered it do so. Furthermore, even if there was evidence of undue delay, the HSC noted that "a dismissal could not be upheld without a showing of actual prejudice to the defendant." Here there were none. None of the defendants were served let alone named. According to the HSC, no defendants were burdened with prejudice.

No Contumacious Conduct Either. "Contumacious conduct" is "[w]illfully stubborn and disobedient conduct." Shasteen, 79 Hawai'i at 107 n. 7, 899 P.2d at 391 n. 7. Blaisdell did not disobey any orders of the court. He wasn't given any. His conduct, according to the HSC, cannot be considered contumacious.

And Finally, a Policy Statement. The HSC, in summing up the case, noted that the circuit court dismissed Blaisdell's pleading with prejudice but without an explanation. The HSC scolded the circuit court because it "should have considered and explained why a lesser sanction, such as a dismissal without prejudice[] was insufficient to serve the interests of justice." The HSC also turned to its "policy of affording litigants the opportunity to have their cases heard on the merits, where possible[.]" Housing Fin. & Dev. Corp. v. Ferguson, 91 Hawai'i 81, 85-86, 979 P.2d 1107, 1111-12 (1999).

When Disjunctions Become Conjunctions. The standard here quoted in Shasteen identifies three distinct "circumstances" warranting dismissal with prejudice: (1) undue delay, (2) contumacious conduct, and (3) actual prejudice. But here, the HSC glommed undue delay with actual prejudice and dealt with contumacious conduct separately. Now it seems that there are only two "circumstances" (1) undue delay and actual prejudice; and (2) contumacious conduct. Now it seems that undue delay is not enough for dismissal with prejudice. Prejudice must be shown in addition to the delay. This glomming makes sense in light of the policy to keep cases open.

Friday, April 22, 2011

Prosecutor's Improper Hypothetical at Closing Proves Fatal

State v. Tuua (HSC April 20, 2011)

Background. David Brown, a bouncer at a bar on Maui, was hit with a beer bottle in the middle of a fight at the bar. Lopeti Tuua was charged with assault in the second degree (HRS § 707-711(1)(d)). At his trial, fellow bouncer, Jason Inglish, and bartender, Renie Hamayelian, testified that they were working that night. Brown and Inglish testified that Tuua threw the bottle. Hamayelian testified that he and another customer had collected all of the bottles, except for one--the one in Tuua's hand before it broke. He also testified that he saw the broken bottle near Brown after it had been thrown. He never saw Tuua throw it. The parties also stipulated that Officer Polanco would have testified that when he arrived at the scene, he took Brown's statement. In that statement, Brown said that another man, Ikaika Kawai, threw the bottle that hit him. Tuua and his half-brother, Brandon Carter, testified for the defense. Both testified that it was Carter who threw the bottle.

During his closing argument, the prosecutor argued, over the defense's objection, that Carter was not a credible witness:

[I]f you found the defendant not guilty, a person might think, well, you can go after Brandon Carter because he admitted to it.

Think about it. What would the defense attorney of Brandon Carter do? He'd call every one of the State witnesses. He'd call Dave Brown. He'd call Renie [Hamayelian] and he'd call Jason Inglish. Who threw the bottle? Each of them would say it's [Tuua]. Each one of them.

Brandon Carter could get up on the stand and all he'd have to say is, I lied. And then what would happen? [Tuua] would have been found not guilty. Defendant would have been found not guilty. Could have just said, I lied under oath. So what?

The most that you can get him for would be charging him for lying under oath. That would be it and that's the strategy, and that's why you can't really give any credibility to Brandon Carter coming in here today and saying, hey, it was me.

The jury found Tuua guilty as charged. Tuua appealed; the ICA affirmed.

Prosecutorial Misconduct. Prosecutors at closing may "draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence." State v. Clark, 83 Hawai'i 289, 304, 926 P.2d 194, 209 (1996). They "are bound to refrain from expressing their personal views as to a defendant's guilt or the credibility of witnesses." State v. Cordeiro, 99 Hawai'i 390, 424-25, 56 P.3d 692, 726-27 (2002).

Here, the HSC held that the prosecutor did not draw from reasonable inferences from the evidence, but rather went beyond the record and discussed the consequences of the jury's verdict. According to the HSC, the prosecutor's hypothetical future trial of Carter was based on an acquittal in Tuua's case. A prosecutor cannot "improperly direct the jury from its duty to decide the case on the evidence . . . by making predictions of the consequences of the jury's verdict." State v. Sanchez, 82 Hawai'i 517, 533, 923 P.2d 934, 950 (App. 1996). According to the HSC, the prosecutor in Tuua's trial did just that.

Three Factors Determine Whether an Improper Statement is Harmless Beyond a Reasonable Doubt. Once misconduct is found, the court must determine whether the error was harmless beyond a reasonable doubt, "which requires an examination of the record and a determination of whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Rogan, 91 Hawai'i 405, 412, 984 P.2d 1231, 1238 (1999). The harmlessness of the misconduct is based on three factors: "(1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant." Id.

All Factors Point Away from Harmlessness. The HSC held that the first factor weighs against the prosecution. The mere fact that the prosecutor's comment directed jurors away from examining the evidence and thinking about the consequences of their verdict was enough to weigh against the prosecution. As for the second factor, there was no curative instruction given. According to the HSC, the fact that the circuit court twice instructed the jurors prior to the improper comment that the arguments were not evidence did not mean that a curative instruction was given. State v. Rogan, 91 Hawai'i at 415, 984 P.2d at 1241. Finally, the HSC noted that "[i]n close cases involving the credibility of witnesses, particularly where there are no disinterested witnesses or other corroborating evidence, this court has been reluctant to hold improper statements harmless." This case, according to the HSC, turned on the credibility of witnesses and each of them had their own biases and interests. It weighs against harmlessness.

Thursday, April 21, 2011

Unauthorized Possession Requires just, well, Possession

State v. Rodrigues (ICA April 20, 2011)

Background. A man left his "waist pouch" in a company van, but did not realize it until the next day. He notified his bank. Two days later, Rodrigues went into a payday loan office to cash one of the man's checks written to her. The manager became suspicious, called a telephone number on the check, and learned that the check was stolen. The police investigated. The man denied writing a check for Rodrigues and that he did not know her. He also denied that that was his signature on the check. Rodrigues was charged with one count of unauthorized possession of confidential personal information and identity theft in the third degree. Rodrigues filed a motion to dismiss on the grounds that the counts merge. The circuit court disagreed with Rodrigues that the offenses merged, but granted her motion to dismiss on the grounds that there was insufficient evidence to support the charges. The State appealed.

Unauthorized Possession of Confidential Personal Information. Unauthorized possession of personal confidential personal information arises when a person "intentionally or knowingly possesses without authorization, any confidential personal information of another[.]" HRS § 708-839.55. "Confidential personal information" is defined as "information in which an individual has a significant privacy interest, including but not limited to a driver's license number, a social security number, . . . a bank account number, a password or other information that is used for accessing information, or any other name, number, or code that is used . . . to confirm the identity of a person." HRS § 708-800. The circuit court concluded that implicit in this statutory definition lies an additional element of impersonation and that the government must allege and prove that the Rodrigues impersonated the person whose identity is confirmed in the information. The ICA rejected this interpretation.

Statute Merely Requires Possession, not Actual Use. "[W]here the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." HGEA v. Lingle, 124 Hawai'i 197, 202, 239 P.3d 1, 6 (2010). The ICA held that the plain and unambiguous language of the statute merely requires intentional or knowing possession of "confidential personal information." The statute does expressly not require the personal information be actually used to impersonate another.

Legislature Intended Possession as the Criminal Conduct, not the use. Departing "from a literal construction of a statute is justified when such construction would produce an absurd result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act." Estate of Roxas v. Marcos, 121 Hawai'i 59, 67, 214 P.3d 598, 606 (2009). Here, the ICA held that it could not depart from the literal construction of the statute based on a review of conference committee reports from the legislature when it adopted the statute as well as the commentary to HRS § 708-839.55. According to the ICA, the statute was intended to allow the prosecution of unauthorized possession before actual use of the information. The circuit court's construction, thus, is inconsistent with the purpose and policy of the statute.

Identity Theft Merely Requires use, not Impersonation. Identity theft in the 3d degree arises when a person "makes or causes to be made . . . a transmission of any personal information of another . . . with the intent to commit the offense of theft in the third degree[.]" HRS § 708-839.8. It is undisputed that the check constituted "personal information" as defined by HRS § 708-800. The ICA rejected the circuit court's construction that impersonation is necessary. The plain language, according to the ICA, called only for the transmission of the information with the requisite intent. Again, the ICA pointed out that the legislative history does not support a departure from the plain language of the statute.

How to Interpret Statutes . . . The canons of statutory construction are well-established in Hawai'i. When a statute is plain and unambiguous, the court must give effect to the plain and obvious meaning. HGEA v. Lingle, 124 Hawai'i at 202, 239 P.3d at 6. The HSC has strictly adhered to this rule.

On the other hand, if a statute is not plain and unambiguous, "the meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning." HGEA v. Lingle, supra. "If statutory language is ambiguous or doubt exists as to its meaning, courts may take legislative history into consideration in construing a statute." Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 123 Hawai'i 476, 482, 236 P.3d 456, 462 (2010).

Absurdities AND Inconsistencies? An equally well-established canon of construction is the absurd result rule. A "departure from a literal construction is justified when such construction would produce an absurd result and the literal construction . . . is clearly inconsistent with the purposes and policies of the act." Estate of Roxas v. Marcos, supra. The ICA's application of this rule is curious. First, it never examined whether the literal interpretations of the statutes produced absurd results. That's too bad. Although the rule of avoiding absurdities is well-established, there really isn't a lot of law explaining what an absurdity is.

But what's more troubling is that the ICA relies on extrinsic aids even though it acknowledged that the language is plain and unambiguous. This approach suggests that unambiguously written and plainly understood statute must nonetheless be consistent with its legislative purpose. The HSC has required strict adherence to the plain-language rule. "Even when the court is convinced . . . that the legislature really meant and intended something not expressed by the phraseology of the act, it has no authority to depart from the plain meaning of the language used." State v. Klie, 116 Hawai'i 519, 526, 174 P.3d 358, 365 (2007). In Carlisle v. One (1) Boat, 119 Hawai'i 245, 195 P.3d 1177 (2008), the HSC noted that the ICA should not have turned to legislative history in aid of its interpretation when the statute was plain and unambiguous. What if a statute was in fact plain, unambiguous, but inconsistent with the legislative purpose? Isn't that the situation contemplated by the HSC in Klie and Carlisle?

Sunday, April 17, 2011

Hawaii Constitution Applies in State Prosecutions Using Federally-Obtained Evidence

State v. Torres (HSC April 15, 2011)

Background. Gallegos was a cashier at the Pearl Harbor Naval Exchange. Gallegos received a canvas bag with $80,000 and went to the cashier's cage. Torres, a Pearl Harbor police officer, arrived even though he was not scheduled to work that day. Both Gallegos and Torres were seen leaving the base. The authorities were notified that Gallegos had abandoned his post and an all points bulletin to "detain and arrest" Torres and Gallegos was issued. Later that day, Pearl Harbor police saw Torres sitting in a line of cars. Torres was taken out of the line. When Torres rolled down his window to shake the officer's hand, the officer reached into Torres' vehicle and turned off the ignition. After a brief struggle, Torres complied, got out of the vehicle, and got arrested. Another officer moved the car and pursuant to base procedures, checked the car for flammables. When he opened the glove box, he found a revolver.

Two Prosecutions by two Governments. The officers prepared an affidavit in order to search Torres' car. They searched the car and found a cashier's bag with around $78,000, Gallegos' wallet, his driver's license, and other identifying papers. The gun they found had two bullets in it with three spent ones. Gallegos was never seen again. The federal government prosecuted Torres for theft and possession of a loaded firearm. He pleaded out and was sentenced to two years imprisonment.

Thirteen years later, he was charged by the State of Hawai'i for the murder of Gallegos and possession of a loaded firearm during the commission of a felony. Torres filed a motion to suppress the evidence collected from his vehicle based on both the state and federal constitutions. The motion was denied. Torres was found guilty as charged. He appealed.

The ICA vacated and remanded for new trial on the grounds that there was improper testimony. It affirmed the circuit court's denial of the motion to suppress. Torres petitioned for certiorari. The HSC reviewed only one portion of the ICA's opinion: whether federally-obtained evidence could be used in a state prosecution.

Extending Bridges. In determining whether evidence obtained in one state must be suppressed in a criminal prosecution in Hawai'i, the court must first identify "the principles to be served by the exclusionary rule, and then evaluate[] how the principles would be served by exclusion." State v. Bridges, 83 Hawai'i 187, 195, 925 P.2d 357, 365 (1996). The HSC was careful to note that the issue in Bridges addressed evidence obtained in another state--California--not evidence obtained by the federal government. Nonetheless, the HSC extended Bridges to evidence obtained by the feds.

Many Bridges to Cross. State courts around the country have addressed the issue of whether evidence obtained by federal law enforcement officers may be used in state prosecutions differently. Some states have held that evidence obtained by federal agents lawfully under federal authority is admissible in a state prosecution. Pena v. State, 62 S.W.3d 745, 754 (Tex. App. 2001); State v. Mollica, 554 A.2d 1315, 1325 (N.J. 1989). Other states have adopted the "exclusionary rule" analysis. State v. Davis, 834 P.2d 1008, 1012 (Ore. 1992); State v. Cardenas-Alvarez, 25 P.3d 225, 232 (N.M. 2001). Under that approach, the court must first identify "the principles to be served by the exclusionary rule, and then evaluate[] how the principles would be served by exclusion." State v. Bridges, 83 Hawai'i 187, 195, 925 P.2d 357, 365 (1996). The HSC agreed with the ICA's analysis that the approach outlined in Bridges applied to federally-obtained evidence. However, the HSC disagreed with the application of Bridges and the Bridges court's application of, well, Bridges.

Keeps the Standard, Overrules the Application in Bridges. There are three purposes underlying the exclusionary rule in Hawai'i: (1) judicial integrity, (2) individual privacy, and (3) deterrence. Id. The "judicial integrity" principle, according to the HSC, has been misapplied by the ICA and the Bridges court itself. According to the HSC, the Bridges court considered only the jurisdiction where the evidence was obtained, which is not a true application of the analysis, but rather a conflicts-of-law approach. And so the HSC overruled Bridges in its "purported" application of the exclusionary rule analysis. It did, however, preserve the actual standard.

Judicial Integrity to Hawai'i Courts, not Foreign ones. "The judicial integrity purpose of the exclusionary rule is essentially that the courts should not place their imprimatur on evidence that was illegally obtained by allowing it to be admitted into evidence in a criminal prosecution." Id. at 196, 925 P.2d at 366. The HSC re-examined the Bridges analysis and concluded that when courts of other jurisdictions allow evidence to be admitted that would be suppressed in Hawai'i, "our courts would necessarily be placing their imprimatur of approval on evidence that would otherwise be deemed illegal, thus compromising the integrity of our courts." Thus, the judicial integrity of the Hawai'i courts must be preserved when examining the first principle of the Hawai'i exclusionary rule.

Individual Privacy must be Considered. Unlike the federal exclusionary rule, "Hawai'i's exclusionary rule serves not only to deter illegal police conduct, but to protect the privacy rights of our citizens." State v. Kahoonei, 83 Hawai'i 124, 131, 925 P.2d 294, 301 (1996). Given the Hawai'i constitution's express protection of privacy rights, the HSC noted that it cannot apply the law of jurisdictions that disregard individual privacy rights. See State v. Snyder, 967 P.2d 843 (N.M. Ct. App. 1998).

And Finally, Deterrence to Hawai'i law Enforcement. As for the final purpose--deterrence--the HSC rejected the ICA's analysis. Deterrence means "the expectation that after evidence is suppressed based on particular police conduct[,] . . . in the future, police officers will refrain from that type of conduct." Bridges, 83 Hawai'i at 199, 925 P.2d at 369. The HSC rejected the ICA's conclusion that because no state law enforcement officers were involved in the obtaining of the evidence against Torres, there was no deterrent effect on the federal officers. The HSC, however, concluded that the application of the Hawai'i exclusionary rule would deter state and federal law enforcement from evading state law in future cases.

Other Considerations. The HSC pointed to other considerations. Allowing evidence that would not be admitted at trial simply because it was obtained in a different jurisdiction would create a disparity in prosecutions. Defendants in state courts, according to the HSC, "should be able to avail himself or herself of the protections afforded by the Hawai'i Constitution."

The Bottom line: the State Constitution Applies to All Evidence Proffered in State Prosecutions--no Matter where it was Obtained. Given these principles underlying the exclusionary rule, the HSC held that "where evidence sought to be admitted in state court is the product of acts that occurred on federal property or in another state, by Hawai'i law enforcement officers or by officers of another jurisdiction, such evidence can only be admitted in a state prosecution if obtained in a manner consistent with the Hawai'i Constitution and applicable case law."

Under the Hawai'i Constitution, it's STILL Admissible. The HSC examined whether the searches were valid under the state constitution even if they were valid under the federal one. Under the Hawai'i Constitution, consent is an exception to the warrant requirement. State v. Hanson, 97 Hawai'i 71, 76, 34 P.3d 1, 6 (2001). "Consent may . . . be implied from an individual's words, gestures, or conduct" and "implied consent to an airport security search may be imputed from posted notices" and "the nature of airport security measures." Id. at 75, 34 P.3d at 5.

Like the airport in Hanson, the Pearl Harbor navy base had a big sign at the entry stating that entry into the base "Constitutes Consent To Search Personnel and Property[.]" Torres entered the base and did not attempt to leave the base until the officers attempted to search his vehicle. The HSC held that the act of driving onto the base constituted a consent to search.

If Certain acts Constitute an Implied Consent to Search, can Other acts Constitute Rescission or Limitation of the Consent? Here, the HSC adopted federal precedents and held that when there is a posted notice that a certain act constitutes a consent to search, there is implied consent to search. Here, Torres engaged in the act constituting consent, but tried to leave the base when the actual search began. The HSC never addressed the issue of limiting the scope of an implied consent. "When an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass." State v. Thornton, 121 Hawai'i 533, 539, 221 P.3d 511, 517 (App. 2009) (quoting United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990)). So if consent can come from acts and gesticulations, can the limitation of a consent also be based on acts and gesticulations? If so, wouldn't the act of struggling with the officer and trying to get out of the base be a straight-up rescission of the implied consent? Can a person take it back? Perhaps these issues will be resolved at another time.

Justice Nakayama's Dissent and Concurrence. Justice Nakayama wrote that Hawai'i law should not apply to the admissibility of the evidence in this case and would apply Bridges without overruling it. Under the judicial integrity prong, Justice Nakayama agreed with the Bridges court that courts need only examine whether the law of the situs jurisdiction was violated before admitting the evidence in Hawai'i. As for the second prong--examination of privacy rights--Justice Nakayama again would turn to the law of the situs jurisdiction. Here, Justice Nakayama pointed out that the evidence was seized by federal agents on federal property and the Hawai'i Constitution had no place in the analysis. Extending the protections of the Hawai'i Constitution into these federal waters, believed Justice Nakayama, was unreasonable. Finally, Justice Nakayama agreed with Bridges and would have examined only the deterrent effect suppressing this evidence would have on federal law enforcement officers, which it would not.

Thursday, April 7, 2011

ICA Rejects Birther's "Compelling" Need for President's Birth Certificate

Justice v. Fuddy (ICA April 7, 2011)

Background. Dr. Robert Justice requested from the director of the State Department of Health an inspection of the original birth certificate for "Barack Hussein Obama II" based on the Uniform Information Practices Act (UIPA). Dr. Justice explained that the inspection would allow him "to determine whether or not Mr. Obama is eligible to hold the Office of President." The director denied the request. Dr. Justice filed a complaint seeking a judgment ordering the disclosure and inspection of the birth certificate. The DOH filed a motion to dismiss. Dr. Justice opposed on the grounds that HRS § 92F-12(b)(3) required all government agencies to disclose "records pursuant to a showing of compelling circumstances affecting the health or safety of any individual[.]" The circuit court granted the motion on the grounds that, inter alia, Dr. Justice failed to show circumstances affecting his health or safety. Dr. Justice appealed.

Not just Anyone can see a Birth Certificate. The department of health "shall not permit inspection of public health statistics records . . . unless it is satisfied that the applicant had a direct or tangible interest in the record." HRS § 338-18(b). A birth certificate or record is a "public health statistic." HRS § 338-1. There are thirteen various circumstances that are considered persons with a "direct or tangible interest." HRS § 338-18(b). Dr. Justice does not dispute the circuit court's finding that he had no such interest. Rather, he contends that Hawai'i's UIPA compelled disclosure of the certificate.

But what about the Freedom of Information? Generally, "government records are open to public inspection unless access is restricted or closed by law." HRS § 92F-11(a). Upon request, "the government records available for inspection and copying during regular business hours[.]" HRS § 92F-11(b). However, agencies are not required to disclose "[g]overnment records which, pursuant to state or federal law . . ., are protected from disclosure[.]" HRS § 92F-13(4). On the other hand, the "records pursuant to a showing of compelling circumstances affecting the health or safety of any individual" must be disclosed. HRS § 92F-12(b)(4).

ICA Assumes (Without Deciding) that UIPA Overrides Other Non-Disclosure Statutes. The State argued that Barack Obama's birth certificate is a record "protected from disclosure" pursuant to HRS § 338-18(b). Dr. Justice, however, argued that HRS § 92F-12(b)(4) compels disclosure upon a finding of certain circumstances. The ICA noted that Dr. Justice may be right--that upon a finding of circumstances affecting the health or safety of the individual, disclosure is required--but did not decide as a matter of law that HRS § 92F-12(b)(4) overrode HRS § 92F-13(4) because there was insufficient evidence for the compelling circumstances anyways.

Dr. Justice's Argument for the Birth Certificate: Foreign-born Presidents are "our Enemies." Dr. Justice argued that inspection of Barack Obama's birth certificate is necessary to verify his eligibility to serve as President of the United States. The president, according to Dr. Justice, is the commander in chief and is "entrusted with our nuclear and chemical arsenals[.]" Verifying that Obama is qualified to serve as president ensures "that our military and our nuclear and chemical arsenals are still under our control and not in the control of any one of our enemies."

ICA Turns to Federal Statute to Interpret "Compelling" Need. The ICA examined the word "compelling" in HRS § 92F-13(b)(4). Based on dictionary definitions, the ICA noted that "compelling" typically means something "overpowering" or "[u]rgently requiring attention." The ICA also noted that HRS § 92F-13(b)(4) is identical to the federal Privacy Act, 5 U.S.C. § 552a(b)(8), which permits disclosure upon "a showing of compelling circumstances affecting the health or safety of an individual." In construing a state statute with language similar to federal statutes, courts "may look to the interpretations of analogous federal law[.]" French v. Hawaii Pizza Hut, Inc., 105 Hawai'i 462, 467, 99 P.3d 1046, 1051 (2004). At least one federal court concluded that the need is "compelling" only in "life and death situations." DePlanche v. Califano, 549 F.Supp. 685, 704 (W.D. Mich 1982). Moreover, the legislative history of the federal statute shows that the compelling circumstances were intended for "valid emergency situations, such as an airline crash or epidemic, where consent cannot be obtained because of time and distance and instant action is required[.]" H.R. Rep. No. 93-1416, at 13, 93rd Cong., 2d Sess. (1974).

Personal, non-Congressional Determination of Obama's Qualifications are not "Compelling." Here, the ICA held that Dr. Justice's reasons were not "compelling." The ICA pointed out that while Dr. Justice may have a strong personal reason for verifying the President's qualifications, only Congress has the power to remove a sitting President. Dr. Justice has no authority to determine Mr. Obama's qualifications, which diminishes any "overpowering" need for the document.

Natural Born Killers: The Problem with Dr. Justice's Logic. Article II of the United States Constitution states that only those born in the United States may be president. This is the "natural born" requirement. What does proving that Mr. Obama is not qualified show other than he is not qualified? It does not prove that he is an enemy to the United States. Plenty of American citizens--like Arnold Schwartzenegger--were born elsewhere, and are not qualified to run for president, which is why John Dean thinks Art. II, Sec. 1 of the U.S. Constitution is antiquated. American citizens born in other countries are not enemies of the people. Moreover, there are plenty of non-citizens who are not enemies of the United States. The faulty logic works both ways too. Does proving that a person is qualified to serve as president of the United States render that person a friend of the United States? Not at all. Timothy McVeigh was born in the United States and would be qualified to serve as president. He is considered by most an enemy of the people. So were Nazi propagandists, Robert Henry Best and Mildred Gillars (a.k.a. Axis Sally) as well as those who, with John Wilkes Booth, conspired to assassinate President Abraham Lincoln, all of whom were convicted for treason against the United States. So does proving that Mr. Obama is not qualified to serve as President mean that he is an enemy? Does a foreign-born president threaten national security? Hardly.

Judge Leonard's Concurrence. Judge Leonard wrote separately to emphasize that Dr. Justice has no authority to determine Mr. Obama's qualifications for the Office of President. Only Congress has the power to remove a sitting president. Because there was no life-threatening or overwhelming need for the documents, Dr. Justice failed to show "compelling circumstances" for them pursuant to HRS § 92F-12(b)(3).