Prosecution Can't Use Evidence from Trial Resulting in Acquittal

State v. Mundon (HSC December 5, 2012)

Background. James Mundon was initially indicted with twenty-eight counts including various degrees of sexual assault, kidnapping, assault, and terroristic threatening. The counts stem from an incident that took place in a single night. At the first trial, Mundon represented himself and had standby counsel. He was found guilty of terroristic threatening in the first degree, attempted assault in the first, assault in the third degree, and attempted sexual assault in the first degree. Mundon appealed and challenged the jury instructions. The HSC agreed, reversed the terroristic threateningcounty, vacated the rest, and remanded the case for retrial.

Trial. Just before opening statements, the prosecution announced that it would be introducing evidence of acts for which Mundon had been acquitted. Mundon objected, but the circuit court overruled the objection.

The complainant testified that she came to Kauai from Canada. On her second day, she met Mundon in the dark near the water in Kapa'a and accepted his invitation to sleep in the cab of his truck. When she awoke she found herself parked far from Kapa'a and discovered Mundon's hand on her outer labia. She told him off and he backed off. She felt that everything had cleared up and she went back to sleep. She awoke again and again found Mundon with his hand up her dress. She repeated herself again that she did not want to do that and Mundon stopped again. She went back to sleep. For the third time she awoke and found Mundon touching her. She grabbed her bag and was going to get out of the truck when Mundon pulled her back and told her that he had a knife and that he would cut her if she wouldn't shut up and lie still. She felt something cold and sharp, but saw no knife.

According to the complainant, Mundon ordered her to undress. She took off some, but not all of her clothes. Then Mundon kissed her and touched her breasts several times. The complainant was able to get away by telling him that she needed to use the bathroom. According to the complainant, Mundon caught up with her and a struggle ensued. She got away again and ran toward a nearby residential or hotel area screaming for help. The police were called and she gave a description of the truck. The police testified at trial that later that morning, they found a truck matching the description and Mundon sleeping inside it. The police arrested Mundon.

Mundon was found guilty of attempted sexual assault in the first degree, kidnapping, and two counts of assault in the third degree. Mundon appealed again and the ICA affirmed. Mundon appealed to the HSC.

Double Jeopardy does not Bar Retrial for Vacated Conviction. No person shall "be subject for the same offense to be twice put in jeopardy." Haw. Const. Art. I, Sec. 10. This is the Double Jeopardy clause in the Hawai'i Constitution and it is very similar to the guarantee in the Fifth Amendment to the United States Constitution. "Double jeopardy protects individuals against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." State v. Ake, 88 Hawai'i 389, 392, 967 P.2d 221, 224 (1998). Double Jeopardy does not, however, bar the prosecution "from retrying a defendant whose judgment of conviction is set aside because of [the trial court's] error." State v. Cabral, 8 Haw. App. 506, 511, 810 P.2d 672, 676 (1991).

. . . But Collateral Estoppel Lies Within Double Jeopardy Clause. At the outset, the HSC made it clear that Mundon was never retried for the offenses of which he was acquitted. Thus, retrial of the vacated conviction is not prohibited by Double Jeopardy.

According to the HSC, however, the doctrine of collateral estoppel is "embodied in the right against double jeopardy, and precludes relitigation issues already decided, even when double jeopardy is not necessarily implicated." The HSC relied on Ashe v. Swenson, 397 U.S. 436, 443 (1970), where the SCOTUS imported the common law doctrine of collateral estoppel to the analysis.

"[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Id. at 443. The Ashe Court cautioned courts against a "hypertechnical and archaic approach" and urged the courts, "with realism and rationality . . . [to] examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration[.]" Id. at 444.

The SCOTUS itself took a more technical approach in Dowling v. United States, 493 U.S. 342 (1990). In short, the SCOTUS majority held that the acquittal of some counts did not show that the jury determined one of the issues in the second trial. Id. at 350. Justice William J. Brennan dissented.

HSC Adopts Ashe Over Dowling. The HSC appeared to have agreed with Justice Brennan and, held that under Art. I, Sec. 10 of the Hawai'i Constitution the Ashe test controls. The HSC applied the test here. Mundon was acquitted of multiple counts accusing him of knowingly putting his hand on the complainant's genitals and breasts and putting his mouth on the complainant's breast all by a strong compulsion. The HSC noted that Mundon was acquitted of these offenses, but convicted of attempted sexual assault in the first degree and kidnapping. According to the HSC, the acquittals must have been based on the failure to prove the conduct elements. Thus, applying Ashe and collateral estoppel, the prosecution should not have been allowed to present evidence that Mundon touched the complainant's genitals and breasts with his hands and mouth. The HSC vacated the second conviction for Attempted Sexual Assault in the First Degree. As for the kidnapping charge, the HSC noted that the prosecution relied upon evidence of acts of which Mundon had been acquitted to make the case that Mundon restrained the complainant with the intention of subjecting her to sexual assault. HRS § 707-720(1)(d). Thus, the kidnapping charge must be vacated too.

But No Reference was Made for the Assault 2d. It is interesting to note that the HSC examined the assault charges and held that the evidence used to support them was not evidence of acquitted acts. There was no reason, therefore, to vacate those counts.

Using the Term "Victim" was Improper. The HSC examined other points raised by Mundon in the rather likely event of a retrial. Mundon objected to references by the prosecution's witnesses of the complainant as a "victim." The HSC more or less agreed. The "term 'victim' is conclusive in nature and connotes a predetermination that the person referred to had in fact been wronged." State v. Nomura, 79 Hawai'i 413, 416, 903 P.2d 718, 721 (App. 1995). The HSC approved of the admonishment from Delaware: it "is incompatible with the presumption of innocence for the prosecution to refer to the complaining witness as the 'victim' just as it is to refer to the defendant as a 'criminal.'" State v. Jackson, 600 A.2d 21, 21 (Del. 1991).

And, to top it off, and Improper Sentence. The HSC also addressed an issue relating to sentencing. The circuit court sentenced Mundon to consecutive terms. At the hearing, the prosecution referenced State v. Vinhaca, 124 Hawai'i 128, 237 P.3d 1194 (2010). The circuit court acknowledged the similarities to that case and noted that it had presided over that case. In fact, during sentencing, the judge placed Mundon in the same category:

This Court presided over [Vinhaca] and did, in fact, sentence the defendant in that case to consecutive sentencing. . . . [G]iven this Court's familiarity with the Vinhaca case and your case, this Court places you in the same category as Mr. Vinhaca in terms of the need for consecutive sentencing.

Mundon noted that he was not familiar with that case. Even though some information was not available to a defendant in preparation for sentencing, the defendant must "have access to all factual information used in sentencing." State v. Durham, 125 Hawai'i 114, 122, 254 P.3d 425, 433 (2011). The HSC held that the circuit court cannot base its sentence of Mundon on its familiarity with another case about which Mundon knew nothing. The HSC vacated the judgment and remanded for re-sentencing the other counts that were affirmed.

Dismissal as a Sanction Against Prosecution is not an Acquittal

State v. Clemente (ICA November 30, 2012)

Background. Drew Clemente was prosecuted for one count of excessive speeding and one count of operating a vehicle under the influence. The key witness for the prosecution was the officer who pulled him over: Officer Jeffrey Tallion. At the bench trial, Officer Tallion testified for the prosecution, but did not finish on the first day. The District Court ordered Officer Tallion to come back nine days later at 10:00 a.m. On the second day, the court bailiff confused Officer Tallion with another officer in a different case who had called in sick.

The District Court called the parties ahead of schedule and told them that Officer Tallion was ill. The prosecution orally moved to continue the trial. The District Court denied the motion and sua sponte dismissed the case with prejudice. About an hour later, Officer Tallion showed up, as scheduled, and the case was recalled. The bailiff realized her error and explained it to the court. The prosecution orally moved for reconsideration of the dismissal based on the mistake. Clemente opposed. The District Court denied the motion. Nine days later, the prosecution filed a written motion for reconsideration. Clemente again opposed and the District Court again denied the motion. The District Court explained that reopening the case would violate the Double Jeopardy Clauses of the State and federal constitutions, HRS § 701-110, and that it did not have jurisdiction to reopen the case. The prosecution appealed.

The Double Jeopardy Clause. "[N]or shall any person be subject for the same offense to be twice put in jeopardy." Haw. Const. Art. I, Sec. 10. Similarly, "nor shall any person subject for the same offense to be twice put in jeopardy of life or limb." U. S. Const. Am. V. These clauses, inter alia, "protect[] against a second prosecution for the same offense after acquittal." State v. Dow, 72 Haw. 56, 58, 806 P.2d 402, 404 (1991). A defendant is "acquitted" "only when the ruling o the judge, whatever its lable, actually represents a resolution in the defendant's favor, correct or not, of some or all of the factual elements of the offense charged." State v. Poohina, 97 Hawai'i 505, 509, 40 P.3d 907, 911 (2002). See also State v. Markowski, 88 Hawai'i 477, 484, 967 P.2d 67, 681 (App. 1998) (defendant could be retried because dismissal based on defective charging was not related to his "guilt or innocence.").

Here, the ICA compared this case to Poohina, where the Hawai'i Supreme Court held that a dismissal sua sponte is not a ruling on the merits of the case and did not rule on the defendant's "guilt." So if that was not an acquittal, the ICA reasoned that Clemente was not acquitted either. Instead, the District Court dismissed the case with prejudice as a sanction against the prosecution for wrongly concluding that it had a no-show witness.

HRS § 701-110: A Similar Analysis. The Double Jeopardy analysis has been codified by HRS § 701-110. A second prosecution is barred by a former prosecution when "the former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by a trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction." HRS § 701-110(1). According to the ICA, this statute "mimics" the constitutional analysis, and it did not go through a second analysis. It simply held that HRS § 701-110 was not a statutory bar for re-trial.

District Court Jurisdiction is good for ten days After the Ruling. The ICA rejected the District Court's conclusion that it had no jurisdiction to revisit the issues raised by the prosecution. The District Court may "[e]nter final judgments; and alter or set aside any judgment within ten days following the date of its rendition or as provided by the rules of the court[.]" HRS § 604-7(a)(3). Here, the ICA noted that the prosecution orally moved for reconsideration within one hour of the dismissal with prejudice. That meant, held the ICA, that the District Court had the power to set aside the dismissal order and it abused its discretion in denying the oral motion.

But What about the Written Motion? The ICA made no reference to the written motion filed nine days after the dismissal. Arguably, the District Court still had the power to review it because it was within the ten day period. But what if the written motion was filed after the ten day period? Under the ICA's analysis, it would probably be irrelevant since the oral motion should have been considered in the first instance. 

Incarceration in California is Good Cause for not Appearing in Honolulu

State v. Diaz (HSC October 18, 2012)

Background. Atmarama Diaz was on bail in Hawai'i for felony charges. The circuit court amended the terms of his bail so he could go to California and meet obligations about a pending case over there. At the Honolulu Airport he was arrested for promoting a detrimental drug in the third degree, a misdemeanor. HRS § 712-1249. He posted $1,000 cash bail that day and caught a later flight to California, where he was put in custody pursuant to the terms of that case.

Diaz's arraignment for the airport case was before the district court. He did not show up and the district court issued a bench warrant and forfeited the $1,000 bail. He was also charged with criminal contempt of court. HRS § 710-1077. Bail in that case was set at $150. Diaz's lawyer appeared at a later hearing, waived his physical presence, and pleaded not guilty in both cases. Diaz argued that he could not appear at the initial arraignment because he was in custody in California and could not appear at this hearing because he could not make the necessary travel arrangements to go to Hawai'i. Diaz also--at the suggestion of the district court--filed a motion for reinstatement of bail.

Diaz appeared in person for trial. The prosecution requested a continuance because witnesses were not present. The district court dismissed the case. Later, there was a hearing on the motion to set aside the forfeiture. Diaz argued that the bail should be set aside because he was incarcerated in California and could not appear in Hawai'i. The district court denied the motion. The district court noted that Diaz failed to abide by the terms and conditions of the release stemming from the airport arrest because he left the islands. Diaz appealed. The ICA dismissed the case on the grounds that a bail forfeiture judgment was never entered. Once the district court entered the judgment, Diaz again appealed to the ICA. This time, the ICA affirmed the denial of the motion to reinstated bail. Diaz petitioned for certiorari.

The Bail Forfeiture Should have been set Aside Upon Proof of Incarceration. The primary purpose of bail "is not to punish a defendant or surety, nor to increase the revenue of the State, but rather to honor the presumption of innocence" by permitting "a defendant to prepare his case, and to ensure the defendant's presence in the pending proceeding." State v. Camara, 81 Hawai'i 324, 330, 916 P.2d 1225, 1231 (1996). The forfeiture of a bail bond will be set aside when "uncontrollable circumstances prevented appearance pursuant to the stipulations in the bond, or that the default of the principal was excusable." Id. In other words, a party may set aside the forfeiture if there is a showing that "the party did not break his or her recognizance intentionally, with the design of evading justice, or without a sufficient cause or reasonable excuse, such was unavoidable accident or inevitable necessity preventing his or her appearance." Id.

Here, the HSC held that Diaz's incarceration in California was an uncontrollable circumstance that justified setting aside the forfeiture. The district court's failure to set aside the forfeiture was nothing more than a sanction against Diaz--which is not the purpose of bail in the first place. Camara, supra.

Inventory Searches do not Automatically Render the Discovery of Evidence Inevitable

State v. Rodridgues a.k.a. Rodrigues II (HSC October 12, 2012)

Background. Marco Rodrigues was sleeping in his car at the Hanamaulu Beach Park near Lihue, Kauai. Officer Scott Williamson saw that the safety sticker on the car had expired so he went up to the car, woke up Rodrigues, and asked for his license and registration. He had no documents, but identified himself. Officer Williamson ran a warrant check, discovered three outstanding bench warrants, and arrested him. He was handcuffed when Officer Williamson searched him "from top to bottom." Officer Williamson pulled his pockets inside out and found a bag containing crystal methamphetamine. He was taken to the Kauai Police Department, where an inventory search had been conducted. He was then taken to the cellblock at the station.

Rodrigues was charged with promoting a dangerous drug in the third degree. HRS § 712-1243. Rodrigues filed a motion to suppress on the grounds that the warrantless search of his pockets violated Art. I, Sec. 7 of the Hawai'i Constitution and the Fourth and Fourteenth Amendments to the federal constitution. The search incident to the arrest for outstanding bench warrants went well beyond the constitutionally permissible scope. At the hearing, KPD Sergeant Eric Kaui testified that pursuant to regular KPD procedures, an inventory search includes a search of the arrestee's clothing. The circuit court granted the motion and suppressed the evidence. The prosecution appealed and the ICA held that the circuit court correctly concluded that the search was an unconstitutional search incident to an arrest. However, the ICA remanded the case for the circuit court to determine whether the prosecution could present clear and convincing evidence that the evidence would have been inevitably discovered by the police. The case was reported here.

On remand, the circuit court concluded that the inevitable discovery exception did not apply and suppressed the evidence again. The circuit court concluded that the prosecution failed to establish that Rodrigues was "incapable of retrieving and discarding the contraband from his person without an officer's notice between the time of his arrest and the inventory search." There was no evidence that Rodrigues was retained in a way that prevented him from discarding the baggie within his pocket. Furthermore, the prosecution failed to show that the police had continually observed Rodrigues during transport and up until the inventory search. The prosecution appealed again. This time the ICA concluded that the circuit court erred in failing to make necessary findings and conclusions; the ICA also held that the prosecution met its burden in proving inevitable discovery. Judge Reifurth dissented. Rodrigues petitioned for certiorari.

The Inevitable Discovery Doctrine and the Exclusionary Rule. When evidence is obtained in violation of Article I, Sec. 7 of the Hawai'i Constitution, it is generally excluded from use by the prosecution at trial. Cite. The Hawai'i exclusionary rule is distinct from the federal exclusionary rule stemming from interpretations of the Fourth Amendment to the U. S. Constitution. State v. Lopez, 78 Hawai'i 433, 896 P.2d 889 (1995).

An exception to the exclusionary rule is inevitable discovery. Evidence will be admitted at trial, despite the constitutional violation, only if the prosecution presents "clear and convincing evidence that any evidence obtained in violation of article I, section 7, would inevitably have been discovered by lawful means." Id. at 451, 896 P.2d at 907.

The Prosecution's Hypothetical. The HSC agreed that the prosecution did nothing more than posit a hypothetical. Although the meth was unlawfully seized, it would have been inevitably discovered at an inventory search at the KPD cellblock. However, the HSC noted that the prosecution simply failed to show that the meth could have been lost, fallen out, or discarded between the time of the arrest in Lihue to the transport and eventual inventory search. There was no evidence backing the hypothetical.

No Independent Investigation, No Certainties, Not Inevitable . . . The HSC added that in Nix v. Williams, 467 U. S. 431 (1984), and Lopez, independent lines of investigation had already been pursued when the constitutional violation occurred. Had the independent investigation proceeded, it was clear that the evidence would have been found. Unlike those cases, there was no evidence showing that any independent investigation was taking place.

The Problem with the ICA's Holding. The HSC noted that it was correcting the ICA's holding because it would have been a situation in which the inevitable exception would have swallowed the exclusionary rule. According to the HSC, nearly every unconstitutional search "would be validated upon the showing by the State that, after the search, the defendant was transported to the cellblock and an inventory search conducted" and would thus defeat the purpose of the exclusionary rule. It would render narrowly-defined exceptions to the warrant requirement meaningless.

So how DO you Prove Inevitability? Proving that evidence would have been there anyways is always difficult to think about. Here, the HSC made it clear that simply proving that an inventory search was done after the arrest and transport was not enough to show that the evidence obtained after the arrest would have been inevitably found. This is because there was nothing showing that Rodrigues could have discarded the meth from his pocket while under arrest. In other words, there is no evidence showing that it was impossible to get rid of the meth during the ride over to cellblock. Moreover, there was no independent investigations taking place that would have lead to the evidence anyways. These seem to be the two guiding factors here. 

Court Stripped of Discretion in Sentencing Meth Traffickers

State v. Casugay-Badiang (ICA August 21, 2012)

OVERRULED

Background. Rubin Ikoa Casugay-Badiang was charged with two counts of trafficking methamphetamine in the second degree (HRS § 712-1240.8). Each count carried a penalty of an indeterminate (or open) term of ten years prison, a mandatory minimum term of one to four years, and a fine u to $10,000. He pleaded guilty to both counts. At sentencing, Casugay-Badiang asked the circuit court to impose the lowest possible mandatory minimum: one year. The prosecution agreed. Casugay-Badiang had no prior convictions or even arrests and had admitted that he was selling meth to feed his own drug habit. The circuit court rejected both requests and sentenced Casugay-Badiang as a young offender to an open five with no mandatory minimum under HRS § 706-667.

The circuit court provided a lucid and honest assessment of the issue:

Okay. Um, sometimes, Counsel, the court asks you to indulge the court whether you want to or not. Just by way of editorializing here, you, I look at this PSI [pre-sentence investigation report], this young man was all of 19 years old when he committed these offenses and he only 20 now. He just turned 20 several months ago.

He has absolutely no record. He has no juvie record. He has no adult record. Now he's young, but he has no record, no arrests, nothing, except for this.

And I understand why the legislature did what they did in 2006. They're a political body, and, you know, there's no question that ice was really and still is a scourge on this community. And there were TV reports and lots of media and, you, so they reacted like politicians do.

And I'm not faulting them. But you know, I look at this PSI and I look at this young man and then I look at the fact that they took away all discretion from the court, you know, and they mandated an open ten and a mandatory minimum and a fine and all of this.

And again I say I understand it, but I don't think it's right. Uh, I think that's what the courts are for. I think that's why we should have some discretion, more discretion than they gave us here.

. . . .

The long and the short of it is I'm going to sentence him as a young adult defendant in this case. And I suppose if the prosecutors feel[] strongly enough about this, they'll writ me and then we'll see. Okay. If [t]he supreme court says I can't do it, fine. Obviously I will bow to my superiors on the supreme court. But until they do, that's, uh, that's my analysis of these sections and their interplay.

The prosecution did not object at sentencing. Instead, it filed a motion to correct the sentence the next day on the grounds that sentencing under HRS § 706-667 was impossible pursuant to the restrictive language in the meth trafficking statute, HRS § 712-1240.8(3). The circuit court denied the motion and the prosecution appealed.

Meth Trafficking's Sentence. "Notwithstanding sections 706-620, 706-640, 706-641, 706-660, 706-669 and any other law to the contrary," a person convicted of meth trafficking "shall be sentenced" to the open ten with the mandatory minimum of one to four years, etc. HRS § 712-1240.8(3). The circuit court reasoned that the young offender statute is not among the five enumerated provisions and so it was still applicable. The ICA disagreed.

The 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 of the statute itself." State v. Wells, 78 Hawai'i 373, 376, 894 P.2d 70, 73 (1995). When the statute is plain and unambiguous, the court must "give effect to its plain and obvious meaning." Id. Here, the statute is clear: notwithstanding "any other law to the contrary" the open ten, etc. sentence must be imposed. See, e.g., State v. Dannenberg, 74 Haw. 75, 80-81, 837 P.2d 776, 778-79 (1992) (the notwithstanding-any-law-to-the-contrary language in the prostitution statute limited "the discretion of the trial court in sentencing prostitution offenses").

According to the ICA, the plain language as well as the legislative history made it perfectly clear: the sentence for meth traffickers is limited to the provisions in HRS § 712-1240.8(3). Despite Casugay-Badiang's age, clean record, and admitted drug problem, the circuit court could not look elsewhere.

An Interesting Point . . . The ICA held that the language "notwithstanding any law to the contrary" meant that the sentencing court could not sentence a defendant to anything other than what was in HRS § 712-1240.8(3). So what would it mean if the language was not there? The DUI statute, HRS § 291E-61, has a special sentencing section requiring the defendant to take classes, get a substance abuse assessment, et cetera. But the statute does not contain the words "notwithstanding any law to the contrary." Of course, it does state that the defendant "shall be sentenced." Would that mean that the "notwithstanding" phrase is unnecessary? On the other hand, in light of this case and Dannenberg, is a sentence in a DUI case that does not impose the classes, the license suspension, or the substance abuse assessment unlawful? Does the district court have discretion to buck the requirements of HRS § 291E-61(b) because there is no notwithstanding phrase?

ICA: Equitable Contribution Action not in Nature of Assumpsit (so no Fees)

Kim v. Kam (ICA August 10, 2012)

Background. Robert Kim, Nancy Kam, and others entered into an attorney-client contract with Matthew Pyun to represent them in bringing an action against their older brother and his handling of their deceased mother's property. Under the contract, Pyun was paid $45,000 and 25% contingency of any amount received through settlement, judgment, or award. The case settled. Based on the value of the recovered property, Pyun sent a bill of $917,529.12 to the parties. When they failed to pay, Pyun sued them. The court ultimately entered judgment against the parties and for Pyun. They ended up settling with Pyun for $767,000. They agreed that as long as they complied with the settlement, Pyun would agree not to enforce the judgment. If the parties breached the settlement agreement, however, the judgment would be immediately enforceable. Kam and the others paid Pyun only $736,000.

Years later, Kim tried to refinance the property, but discovered that Pyun put a lien against it. Kim interpreted the lien as a breach of the settlement agreement. Kim sued Pyun. Pyun prevailed. Ultimately, he was awarded $220,268.05. Kim then filed a complaint against Kam et al.--this case--seeking equitable contribution for payment of the judgment. Some defendants filed motions to dismiss or judgment on the pleadings. They were granted. The defendants sought attorneys' fees and costs in the amount of $17,517.58. The circuit court awarded the defendants and entered judgment against Kim. Kim appealed.

Award of Attorneys' Fees "in all Actions in the Nature of Assumpsit." Absent a statute or contract, each party is generally responsible for his or her own fees and costs. Ranger Ins. Co. v. Hinshaw, 103 Hawai'i 26, 31, 79 P.3d 119, 124 (2003). However, one statutory exception comes from HRS § 607-14. "[I]n all actions in the nature of assumpsit . . . there shall be taxed as attorneys' fees, t be paid by the losing party . . ., a fee that the court determines to be reasonable[.]" HRS § 607-14. Assumpsit permits "the recovery of damages for the non-performance of a contract, either express or implied written or verbal, as well as quasi contractual obligations." Leslie v. Estate of Tavares, 93 Hawai'i 1, 5, 994 P.2d 1047, 1051 (2000). "When the recovery of money damages is not the basis of a claim factually implicating a contract, the action is not in the nature of assumpsit." Id. at 7, 994 P.2d at 1053. Furthermore, claims of rescission and restitution are considered actions in the nature of assumpsit. Hong v. Kong, 5 Haw. App. 174, 683 P.2d 833 (1984). Equitable claims of unjust enrichment are also "in the nature of assumpsit." Porter v. Hu, 116 Hawai'i 42, 66, 169 P.3d 994, 1018 (App. 2007).

The Nature of Equitable Contribution is not of Assumpsit. Here, Kim sued Kam for equitable contribution. Resorting to cases outside Hawai'i, the ICA noted that this equitable contribution "is the right to recover from a co-obligor that shares liability with the party seeking contribution[.]" Crowley Maritime Corp. v. Boston Old Colony Ins. Co., 70 Cal. Rptr. 3d 605, 608 (2008); Sound Built Homes, Inc. v. Windermere Real Estate/South, Inc., 118 Wash. App. 617, 633-34, 72 P.3d 788, 797 (2003). This right is not founded on an agreement and is not contractual in nature. 18 Am. Jur. 2d Contribution § 4 (2004).

Here, the ICA held that Kim's complaint sought equitable contribution from Kam and the others in paying for his judgment debt to Pyun. The ICA noted that even though Kam and the others became co-obligors through a contract with Pyun, "Kim was not seeking recovery of damages under the contract--there was not contract between Kim and [the] Defendants." Nor was Kim seeking quasi-contractual obligations for unjust enrichment. In short, the ICA held that the fact that the underlying contract and settlements formed the basis for Kim's claim for equitable contribution did not render the claim in the nature of assumpsit. Thus, the trial court abused its discretion in awarding attorneys' fees to Kam and the others.

Finding Assumpsit in Porter v. Hu (but not here). The line between actions in the nature of assumpsit and those that are not is getting harder to discern. Equitable claims are "within the realm of assumpsit" when it is for unjust enrichment. Porter v. Hu, 116 Hawai'i at 66, 169 P.3d at 1018. So how come equitable contribution is not in the nature of assumpsit? True, there are treatises and cases that point in that direction, but it is unclear exactly why the equitable obligation to contribute to a debt owed--especially a debt flowing from a judgment or contract--is not "in the nature of assumpsit." The ICA cited American States Ins. Co. v. National Fire Ins. Co. of Hartford, 135 Cal. Rptr. 3d 177, 182 (2011). There, the California court noted that "an action for equitable contribution is rooted in equity, not contract." Id. Again, that may be so, but how does this square with Porter v. Hu? Unjust enrichment is rooted in equity, but somehow that is still in the nature of assumpsit. So how come equitable contribution isn't?

Furthermore, how close to "assumpsit" does an action have to be to fall within the ambit of HRS § 607-14? Should the court put any significance to the fact that the statute reads "in the nature of assumpsit" rather than "assumpsit"? Does the plain language suggest that actions that are kind of contractual--like unjust enrichment or restitution--in the "nature" of assumpsit even though they are not squarely in assumpsit? And if that is the case, wouldn't equitable contribution be among them? Not so, held the ICA.

Trial Court's Discretion in Limiting Cross Examination must Yield to Confrontation Clause

State v. Levell (HSC August 8, 2012)

Background. Donald Levell was charged with a single count of harassment (HRS § 711-1106(1)(a)) for allegedly shoving Malia Avila. Before trial, Levell moved for permission to cross-examine Avila about an incident in which she allegedly stole Levell's credit cards and used them after he had been arrested for harassment. Levell argued that the incident was a motive for Avila to fabricate the harassment accusation and to testify falsely at trial. The prosecution objected on the grounds that the incident was irrelevant. The district court denied the motion and refused to allow Levell cross-examine Avila about the credit card theft on the grounds that it was "not relevant to the elements of harassment[.]" And although it was evidence of a potential motive for Avila to fabricate her story, the evidence was highly prejudicial because the theft case was still being investigated, and thus, the cross-examination may cause Avila to violate her right against self-incrimination.

At trial, evidence showed that Levell met Avila while he was walking on the beach in Waikiki when he met Avila. Avila told Levell that she had no place to go, that her father was ill, and that she had just arrived from Las Vegas. Levell invited her to stay with him. Avila did not have a cell phone. Levell said that he had three phones and allowed her to use one of them.

Avila testified that on the night in question, she came home from work and saw Levell sitting there drinking. Levell approached her with a cell phone. He wanted to remove the SIM card in her phone and put it in the one he had. He transferred the card as Avila went to the bathroom. When she came back she asked for the card back, but Levell refused. She asked again and at that point, Levell stood up, walked up to her, and pushed her on her chest with open palms. Avila fell and hit her back and ribs on a rattan chair. There were no visible injuries. Avila got up and told Levell that she was calling the police. She went downstairs to the lobby and called the police from a security phone. She was not carrying her phone. The police arrived. When Levell went downstairs he was arrested. After he was taken away, Avila went back up to the apartment to gather her things and never returned to the apartment. She had not seen Levell until the day of trial.

On cross-examination, Avila admitted that when Levell took her phone, he gave her the other phone for her to use. Avila admitted that she did not want the other phone and was upset that he took the original phone away. Levell again renewed his motion to cross-examine her about the stolen credit cards, but the prosecution objected again and the district court sustained the objection.

Levell testified that when Avila came home, he had asked for her SIM card. Levell took the card, put it in another phone, called the new phone to make sure it was working, and gave Avila the working phone. Avila was upset. She asked Levell to return the original phone to her. Levell complied and Avila left the apartment with both phones. Levell went downstairs to find her and saw that she was talking to several police officers. He was arrested. Levell testified that he never had offensive physical contact with Avila or any other woman before.

On cross-examination, the prosecution asked why he was going downstairs. Levell explained that he wanted to find her to tell her that she could not stay in the apartment anymore. The prosecution asked if he was going to kick her out just because of the cell phone incident. Levell said no, he had noticed that she had been stealing things. The prosecution objected (presumably to its own question) and the district court sustained the objection.

The district court found Avila more credible than Levell and found Levell guilty as charged. The ICA affirmed.

The Right to Cross-Examine the Accuser Comes Before Trial Court's Discretion in Limiting Relevant Evidence. The trial court has the discretion to limit relevant evidence and the form of cross-examination. HRE Rule 403 and 611. However, that discretion is not unlimited. "In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against the accused[.]" Haw. Const. Art. I, Sec. 14; see also U.S. Const. Am. V. The confrontation clause affords the right "to demonstrate bias or motive of prosecution witnesses." State v. Balisbisana, 83 Hawai'i 109, 115, 924 P.2d 1215, 1221 (1996). "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross examination." Id. According to the HSC, the trial court can limit cross-examination "only after the constitutionally required threshold level of inquiry has been afforded the defendant." Id. at 114, 924 P.2d at 1220.

Evidence of Bias, Interest, of Motive--no Matter how Weak--is Relevant. Moreover, "the credibility of a witness may be attacked by evidence of bias, interest, or motive." HRE Rule 609.1(a). This kind of evidence is always relevant. State v. Estrada, 69 Haw. 204, 220, 738 P.2d 812, 823 (1987). The HSC noted that the inquiry is not the degree to which the evidence may show possible bias, interest, or motive. That goes to the weight. Adopting Professor Bowman's treatise, the HSC explained that "the relevant inquiry is whether such evidence has 'any tendency to support an inference of the witness' disposition or tendency, consciously or unconsciously, to slant testimony, one way of the other, from the straight and true.'" Addison M. Bowman, Hawai'i Rules of Evidence Manual § 609.1-[1][C] (2010-11 ed.). And once this evidence has been established, "it is error not to allow cross-examination to reveal possible bias." State v. Estrada, 69 Haw. at 220, 738 P.2d at 823.

Trial Court Erred in Refusing Levell to Cross-Examine Avila About Stolen Credit Cards. The HSC held that the trial court erred in concluding that the evidence about potentially stolen cards by Avila were irrelevant. It was clear that the evidence was intended to show bias, interest, or motive to fabricate her claims of harassment against Levell. It was also clear that Levell had a constitutional right to cross-examine Avila about possible fabrications.

. . . And the Error was not Harmless Beyond a Reasonable Doubt. Denial of the constitutional right to cross-examine is subject to harmless error review. Balisbisana, 83 Hawai'i at 117, 924 P.2d at 1223. A conviction will not be overturned if the court commits an error that is harmless beyond a reasonable doubt. State v. Veikoso, 125 Hawai'i 126, 135, 270 P.3d 997, 1006 (2011). The error cannot be considered harmless "if there is a reasonable possibility that [the] error might have contributed to the conviction." Id. To determine harmlessness, the court will review the entire record and consider a variety of factors, including "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Balisbisana, 83 Hawai'i at 117, 924 P.2d at 1223.

According to the HSC, Avila's testimony was "central" to the prosecution's case. The allegations of credit card theft were not cumulative to any testimony introduced at trial. Nothing directly corroborates Avila's testimony and, thus, evidence of bias, motive, or interest "would have been particularly helpful in assessing" Avila's credibility. And although cross examination was permitted, questions about the credit card were summarily excluded. The HSC held that the error was not harmless beyond a reasonable doubt. The case was remanded for a new trial.

Knowing About Contraband and Having the Ability to Control or Exercise Dominion over it does not Presume Intent to do that.

State v. Foster (HSC July 31, 2012)

Background. One summer's night near Kaupo--a remote part on the East side of Maui--DLNR officers were patrolling for unlawful night hunting when they noticed a bright light roving back and forth. The officers caught up to the light and found a 4Runner. Foster was in the driver's seat and Malano was riding shotgun. Wendy Gonsalves and Malia Saunders were sitting in the backseat. The officers approached the vehicle and saw an ammunition clip between the driver's seat and the passenger's seat. All four were ordered out of the vehicle.

As the women got out from the backseat, the front passenger's seat slid forward. One of the officers saw a rifle under the seat. During the stop, the officers confirmed that the vehicle was registered to Foster and that Saunders was wanted on a warrant. Foster was arrested and gave a statement.

Foster told the police that he had picked up Malano earlier that night and he had a black ukulele case. The men picked up the women and headed toward Kaupo. Once they got near Kanaio, they pulled over to the side of the road to take a break. Malano took out a MAK-90 out of the ukulele case and fired off a few rounds at an abandoned boat on the side of the road. They got back into the car and started driving out toward town. Gonsalves held the gun for a little while in the backseat.

Foster was indicted with offenses related to the prohibited ownership or possession of a firearm. HRS §§ 134-7(b) and (h). At trial and after the prosecution rested, Foster moved for judgment of acquittal. The motion was denied. During deliberation, the jury asked the judge if "possession [was] determined by just being present with the object[.]" The circuit court responded with the following instruction:

A person is in possession of an object if the person knowingly procured or received the thing possessed, or was aware of his control of it for a sufficient period of time to have terminated his possession.

The law recognizes two kinds of possession, actual possession and constructive possession. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing for a sufficient period of time to terminate his possession of it, either directly or through another person or persons, is then in constructive possession of it.

The fact that a person is near an object or is present or associated with a person who controls an object, without more, is not sufficient to support a finding of possession.

The law requires also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.

The element of possession has been proved if you find beyond a reasonable doubt that the defendant had actual or constructive possession, either solely or jointly with others.

The jury found Foster guilty as charged. Foster renewed his motion for acquittal. The circuit court concluded that there was insufficient evidence to show that Foster had the requisite intent to exercise dominion or control over the firearm and/or ammunition, and granted the motion. The prosecution appealed. The ICA, in a summary disposition order, held that the circuit court erred in granting the motion and reinstated the jury verdict. Foster applied for a writ of cert.

Actual and Constructive Possession in Hawai'i. Possession may either be actual or constructive. "A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion over a thing, either directly or through another person or persons, is then in constructive possession." State v. Jenkins, 93 Hawai'i 87, 110, 997 P.2d 13, 36 (2000).

"To support a finding of constructive possession the evidence must show a sufficient nexus between the accused and the [item] to permit an inference that the accused had both the power and the intent to exercise dominion and control over the [item]. Mere proximity is not enough." State v. Moniz, 92 Hawai'i 472, 476, 992 P.2d 741, 745 (App. 1999). Furthermore, finding constructive possession requires an evaluation of certain factors and circumstances:

Proof of the defendant's knowledge of the presence of [the item] and the defendant's ownership of right to possession of the place where the [items] were found, alone, are insufficient to support a finding of the exercise of dominion and control. Other incriminating circumstances must be present to buttress the inference of knowing possession and provide the necessary link between a defendant and illegal [items].

Id. at 476-77, 992 P.2d at 745-46.

Defendant's Knowledge that a Firearm and Ammo were in his car and the Ability to Control and Exercise Dominion over it is not Enough. The HSC held that there was sufficient evidence that Foster knew a firearm and ammo were in his car. The moment Malano took the gun out of the ukulele case and started firing it into the darkness, Foster knew about the gun, its ammo, and one could infer that he could have exercised dominion and control over them. However, that alone does not presume Foster's criminal intent "to make use of that knowledge and ability." Moniz, 92 Hawai'i at 479, 992 P.2d at 748. The HSC formulated the rule differently: "intent to exercise dominion and control over the items must thus be proven in addition to knowledge of the items and power to exercise dominion and control over them."

There was no Evidence Showing that Foster had the Intention to Exercise Dominion and Control. The HSC moved on and held that the prosecution failed to show any evidence that Foster had the intent to exercise dominion and control over the gun and ammo.

In Moniz, the ICA examined constructive possession of a scale as drug paraphernalia and marijuana found in apartment shared by husband and wife. The ICA held that even though they had lived together and even though the wife--Juliet Moniz--saw and could have used the scale and marijuana, there was no evidence establishing her intent to do just that. Similarly, in State v. Brown, 97 Hawai'i 323, 326, 37 P.3d 572, 585 (App. 2001), the ICA examined whether the defendant had constructive possession of a "burglar's tools." There, a van stolen from a seafood distributor crashed into a wall. When the police showed up, they found the defendant and a backpack on the floor of the van with bolt cutters in it. The ICA held that a jury could infer that the backpack was not part of the seafood distributor and that it must have come from the person who stole the van in the first place.

Here, the HSC held that Foster's case is akin to Moniz and distinguishable from Brown. The gun and ammo were known to Foster and he could have taken hold of it. But he didn't. That knowledge and ability alone was not enough to show constructive possession. And unlike the defendant in Brown, there was no evidence that Foster and Malano planned to go deer hunting or pleasure shooting out in Kaupo. Finally, the HSC turned to two federal cases to support its holding that merely being the driver is not enough to show a joint venture into criminal activity. See United States v. Crain, 33 F.3d 480, 486 (5thCir. 1994) ("when two or more people are occupying a place, a defendant's control over the place is not by itself enough to establish constructive possession of contraband found there."); United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994) ("while dominion over the vehicle certainly will help the government's case, it alone cannot establish constructive possession of a weapon found in the vehicle, particularly in the face of evidence that strongly suggests that somebody else exercised dominion and control over the weapon.").

In the end, the HSC vacated the ICA's judgment and reinstated the order of acquittal.

Justice Acoba's Concurrence. Justice Acoba agreed with the majority that there was no evidence establishing that Foster intended to exercise dominion and control over the gun and ammo. However, he wrote separately because he did not believe that there was evidence showing that Foster even had the power to exercise dominion and control. Justice Acoba pointed out that there was no evidence that Foster knew what was in the ukulele case when he picked up Malano. Malano at some point got out of the vehicle, fired off the rounds, and got back in. As they drove toward Ulupalakua, Gonsalves was loading the gun. Foster kept driving. For Justice Acoba there was no evidence that Foster touched the gun and ammo or that his access was freely accessible to him.

Proving Intent is Never Easy. Mere presence to an item is not enough to show possession of that item. Moreover, the HSC made it clear that knowing about the item and having the ability to possess it is not enough to show intent to possess. Something more is needed. So what would prove it?

Prosecutors have to wrestle with this question in not only firearms cases, but cases involving drugs, unlawful fishing/hunting, and even stolen property. Each case presents a different set of circumstances and challenges.

ICA has no Problem with Increase 3 Times Higher than Present Rate

In re: Application of Wai'ola O Moloka'i, Inc. (ICA June 14, 2012)

Background. Waiola O Moloka'i, Inc. is a wholly owned subsidiary of Moloka'i Properties Limited and provides water services for residents, businesses, churches, and Maui County parks for most of western and central Moloka'i. The water comes from mountain sources on the island and is purchased from the Moloka'i Public Utilities--another subsidiary of MPL and the Department of Hawaiian Home Lands. In 1993, Waiola got a Certificate of Public Convenience and Necessity to provide water to residential, commercial, and agricultural customers on the island. In 2008, MLP announced that all business operations were coming to an end. The Consumer Advocate requested to the PUC that MPL keep the water on. The PUC granted the request and ordered Waiola to continue providing water to the island until it transferred its certificate or returned it back to the PUC.

In 2009, Waiola applied for a rate increase. The proposed increase was nearly 383% higher than the present rate. A public hearing was held and Maui County intervened. The Consumer Advocate announced a settlement on the rate increase. The Consumer Advocate and Waiola agreed to a rate increase of 328.69%. The County was not part of the agreement, and objected. The PUC approved of the rate increase. The County appealed.

Public Utilities: Age-old Regulation. "All rates, fares, charges, classifications, schedules, rules, and practices made, charged, or observed by any public utility or by two or more public utilities jointly shall be just and reasonable and shall be filed with the public utilities commission." HRS § 269-16(a). The just-and-reasonable standard was borrowed from the standard established long ago by the federal regulations. Maui County argued that when establishing a "just and reasonable" rate, the PUC "clearly has the duty to prevent its regulatees from charging rates based upon illegal, duplicative, or unnecessary labor costs." NAACP v. Fed. Power Com'n, 425 U.S. 662, 668 (1976).

Unlawful Conduct in Itself Bears Nothing on the Issue of a "Just and Reasonable" Rate Increase. Maui County pointed out that Waiola was not authorized to provide water to the Kualapu'u area on the island. This, according to the ICA, was not enough. According to the ICA, "in order for a charge to be considered unjust and unreasonable, the charge must be based on expenses unnecessarily incurred as a result of the illegal activity." The ICA held that Maui County failed to demonstrate a nexus between the unlawful activity and the rate increase. "Simply alleging Wai'ola does not have the proper permit to service the Kualapu'u is not enough to prove the rate was unjust and unreasonable."

Nexus Between Unlawful Conduct and the Rate Increase. It appears that the ICA does not dispute the proposition that unlawful activity cannot be considered in evaluating a rate increase pursuant to courts outside our jurisdiction. It even looks like the ICA does not dispute that providing water to Kualapu'u was unlawful. The ICA departs from Maui County because Maui County failed to link the unlawful activity to the rate increase. This may be true. Merely alleging that a corporation broke the law--viewed in isolation--would not seem to be enough in finding an unjust and unreasonable rate increase. But the ICA did not really flesh out what was or what was not on the record. It's unclear from the opinion if there is no evidentiary link between the unlawful service and the rate increase. It's also unclear what exactly Maui County argued. Perhaps it argued that unlawfully providing water to Kualapu'u could not be made part of its proposed calculation for a rate increase more than 300% the present rate. But that's just speculation. If that was the case, then the problem still remains: is there any evidence that the Kualapu'u service contributed to the rate increase? If so, then perhaps there is a problem. If not, then there's no nexus.

Impact, not Theory. The ICA next addressed Maui County's contention that relying on the settlement between the Consumer Advocate and Waiola was error. PUC decisions "are not presumptively valid . . . [but] an agency's discretionary determinations are entitled to deference, and an appellant has a high burden to surmount that deference." Paul's Electric Service, Inc. v. Befitel, 104 Hawai'i 412, 419, 91 P.3d 494, 501 (2004). Reliance on the settlement, according to the County, was improper because it imposed an unreasonable burden on the people of Molokai.

The ICA disagreed. "The methodology employed by the PUC in its rate-making determination lies within its expertise and discretion." In re Hawaii Elec. Light Co., 67 Haw. 425, 431, 690 P.2d 274, 279 (1984).

It is not theory but the impact of the rate order which counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry is at an end. The fact that the method employed to reach that result may contain infirmities is not then important.

In re Hawaiian Tel. Co., 67 Haw. 370, 381, 689 P.2d 741, 749 (1984) (quoting Fed. Power Comm'n. v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944)).

Impact, not Theory? What exactly did the ICA hold? It seems that the ICA held that reliance on a settlement is perfectly fine so long as the rate is just and reasonable. That's because it's "not theory but impact of the rate order which counts." But then again, was that Maui County's argument? It's unclear. Did Maui County really challenge reliance on the settlement or did it challenge the justness and reasonableness of the agreement (and ultimately the rate change order)?

The Other Issues: the Impact. The ICA addressed the impact. Although the rate increase was quite high, it was ultimately just and reasonable. The other issues raised by the County--the failure to review Waiola's projections supporting the rate increase and the PUC's approval of Waiola's costs for sales and attorney's fees--did not arise to reversible error. The rate increase was affirmed.

No Summary Judgment for Simply Failing to Answer Interrog Before the Discovery Cutoff

Ralston v. Yim (ICA May 31, 2012)

Background. Rick Ralston sued Dr. Errol Yim for dental malpractice. Before the discovery cut-off date, Dr. Yim filed a motion to dismiss and/or for summary judgment. Dr. Yim argued that Ralston could not prove his malpractice claim because he had not disclosed any expert witnesses. Ralston responded by arguing that Dr. Yim had not met its initial burden of showing no genuine issue of fact, particularly the fact that Dr. Yim's orthodontic care comported with accepted standards of care and that Dr. Yim adequately obtained Ralston's informed consent. Ralston also pointed out that the discovery cutoff had not occurred. At the first hearing, the circuit court permitted supplemental briefing on the issue. Ralston attached a report from an expert, Dr. Harry Aronowitz, and Dr. Aronowitz's c.v. The affidavit stated that in his expert opinion, Dr. Yim's orthodontic care fell below the standard of care. Dr. Yim did not supplement its motions, but instead argued that because Dr. Aronowitz's opinion was inadmissible because it was not contained in an affidavit or other affirmed statement. The day before the hearing, Ralston filed another supplemental pleading, this time with Dr. Aronowitz's affidavit. At the hearing, the circuit court struck the 2d supplemental pleading before being filed too late and concluded that the initial report from Dr. Aronowitz was inadmissible. It granted Dr. Yim's motion and awarded him $3,878.63 in costs. Ralston appealed.

The Summary Judgment Standard. The summary judgment standard is well-known:

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of the fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inference drawn therefrom in the light most favorable to the party opposing the motion.

Tri-S World Corp. v. W. World Ins. Co., 110 Hawai'i 473, 487, 135 P.3d 82, 96 (2006); Haw. R. of Civ. Pro. Rule 56.

The Burden Improperly Shifted to the Non-Moving Party. In medical negligence actions, the plaintiff must show at trial that the physician fell below the standard of care "through expert medical testimony." Craft v. Peebles, 78 Hawai'i 287, 298, 893 P.2d 138, 149 (1995). Thus, Ralston must ultimately show negligence through expert testimony at trial. But according to the ICA, that is not the issue here. The question is whether Ralston had to respond to the motion for summary judgment by presenting expert testimony when the moving party failed to show any evidence as to the standard of care.

The ICA agreed with Ralston that the circuit court erred. "Although . . . under certain circumstances a summary judgment movant may carry its burden without presenting evidence negating an element of the other party's claim, merely asserting that the non-moving party has not come forward with evidence to support its claim is not enough. . . . [T]he movant must first demonstrate that the non-moving party cannot carry its burden of proof at trial." French v. Hawai'i Pizza Hut, Inc., 105 Hawai'i 462, 471-72, 99 P.3d 1046, 1055-56 (2004). The ICA pointed out that the circuit court granted summary judgment before the discovery cutoff date. Ralston did not have adequate time to conduct discovery, find his experts, and then respond to Dr. Yim's interrogatories. Simply pointing out that none of the interrogs had been answered did not discharge Dr. Yim of his burden as the movant in proving no genuine issue of material fact existed. The ICA thus held that the award of costs was improper and vacated the summary judgment.

Distinguishing Eddins. In Eddins v. Morrison, 105 Hawai'i 376, 98 P.3d 247 (App. 2004), the ICA upheld a summary judgment when the plaintiff had no admissible evidence of an expert's testimony. However, in that case, the defendant doctor met his initial burden of proof when he submitted affidavits showing that his performance had met the standard of care. Id. at 377, 98 P.3d at 248. The summary judgment was proper because the plaintiff failed to present admissible evidence rebutting the defendant's evidence. Id. Here, however, Dr. Yim did not present any evidence and he had the burden of proof.

One Constitutional Provision: Three Political Questions, One non-Political

Background. A group of people brought a lawsuit against the State's Director of Finance, the State, the Hawaiian Homes Commission, the Department of Hawaiian Home Lands, and other related officials. The lawsuit alleged a constitutional violation of the duty to sufficiently fund the Department of Hawaiian Home Lands. The complaint prayed for injunctive relief by ordering sufficient funds. The State filed a motion for summary judgment on the grounds that the complaint raised a political question and the issue could not be resolved by the courts. The circuit court granted the motion and the ICA affirmed. The HSC granted certiorari.

The Political Question Doctrine. Hawai'i adopted the political question doctrine from Baker v. Carr, 369 U.S. 186 (1962):

Prominent on the surface of any case held to involve a political question is found (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) 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).

The Constitutional Question Raised by the Plaintiffs. The Hawai'i Constitution mandates a duty for the legislature to fund Hawaiian Home Lands:

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 to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3), and (4) herein, by appropriating the same in the manner provided by law.

Art. XII, Sec. 1. The question is whether that duty could be enforced through injunctive relief.

How to Interpret the Constitution. The HSC examined the words "sufficient" and "sum" in Art. XIII, Sec. 1. "The general rule is that, if the words used in a constitutional provision . . . are clear and unambiguous, they are to be construed as they are written[.]" Spears v. Honda, 51 Haw. 1, 6, 449 P.2d 130, 134 (1968). Words in the constitutional are "presumed to be used in their natural sense." Employees' Retirement Sys. v. Ho, 44 Haw. 154, 159, 352 P.2d 861, 864 (1960). The term "sufficient" means "marked by quantity, scope, power, or quantity to meet with the demands, wants, or needs of a situation or of a proposed use or end," and the word "sum" is simply an amount of money. Webster's Third New International Dictionary, 2284, 2289 (1967). This, according to the HSC, did not really resolve the issue so it delved deeply into the history underlying the constitutional provision.

When the plain language does not shed any light on the issue, the court can examine "the history of the times and the state of being when the constitutional provision was adopted." State v. Kahlbaun, 64 Haw. 197, 202, 638 P.2d 309, 315 (1981). When reviewing the historical backdrop, "the object sought to be accomplished and the evils sought to be remedied should be kept in mind by the courts." Hawai'i Gov't Employees' Ass'n v. County of Maui, 59 Haw. 65, 81, 576 P.2d 1029, 1039 (1978).

No Legislative Discretion, but Perhaps some Judicial . . . The HSC examined the debates of the Constitutional Convention of 1978. The committee reports and floor debates showed that the Constitutional Convention did not want legislative discretion in this particular area. The delegates noted that the legislature should not be given the option to leave these areas unfunded. However, the delegates could not agree exactly how much funding the Department of Hawaiian Homelands should get; hence, the term "sufficient sum."

Half a Question . . . In the end, the HSC held that the language and history of Art. XIII, Sec. 1 created measurable and justiciable standards to determine "sufficient sums" only for administrative and operating expenses of the Department of Hawaiian Home Lands. The other three purposes--the first three in the provision--are too vague and unclear for any real judicial involvement. And so, the HSC remanded the case to determine that narrow question and affirmed the dismissal in all other respects.

A Very Heavy Reliance on History. The HSC examined this issue by looking at the language of the constitutional provision, determined that that in itself did not address the issue, and plunged ahead on the constitutional history. This analysis, in itself, is nothing new. Interpreting rules, statutes, and constitutional language is usually done this way. But in the end, the HSC held that there was only enough judicial review to examine whether there was "sufficient sums" for purposes of funding the DHHL and no other purpose. How can it be that only one of the three purposes from the same constitutional provision is not a political question, but the rest of them are nonjusticiable? The HSC relied on reports and a proposed general plan by delegates and legislators from the late '70s. That's what makes this interpretation so odd. The answer is the heavy reliance on legislative history. What was at work here appears to be the legislative reports, the plan, and just about everything other than the language of the constitution itself.