Showing posts with label civil procedure. Show all posts
Showing posts with label civil procedure. Show all posts

Wednesday, November 7, 2012

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.

Sunday, June 17, 2012

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.

Saturday, April 28, 2012

Challenging a Conclusion Without a Finding that was Actually a Conclusion

Marvin v. Pflueger (HSC April 27, 2012)
Background. A group of landowners live on a kuleana next to James Pflueger near Pila'a Bay on Kauai. Heidi Huddy-Yamamoto has an interest in the land too. The landowners sued Pflueger for damages after he graded his property which caused a mudslide that covered their land. They also sought injunctive relief, including an easement by necessity. Huddy-Yamamoto was invited to join the lawsuit, but she refused. Years of litigation followed. The plaintiffs filed a motion for summary judgment to get the easement without trial. More than four years after filing the initial complaint, Pflueger, in a "position statement" raised the argument that the case should be dismissed because Huddy-Yamamoto was a necessary party that must be joined in the lawsuit. Pflueger never raised this issue in a motion to dismiss for failure to join a party. The circuit court found that Huddy-Yamamoto, who testified at the hearing on the motion for summary judgment, was not an indispensable party to the action. Thus, the circuit court granted the motion for the easement as well as a related restraining order prohibiting Pflueger from interfering with the property's water system. The circuit court issued 159 findings of fact and conclusions of law. Pflueger appealed.
In its opening brief, Pflueger's first point of error stated that the circuit court erred in granting the motion and identified FOF/COL 102: "There are no facts in the record to suggest that the Huddy family will be prejudiced by not participating in the instant lawsuit. Indeed, they were asked to participate, and refused." The plaintiffs argued that Pflueger failed to comply with Hawai'i Rules of Appellate Procedure Rule 28 because it cited only the conclusion of law when in argued an erroneous finding of fact.
The ICA appeared to have agreed, but reviewed the issue for plain error and concluded that Huddy-Yamamoto was an indispensable party to the action that should have been joined so the trial court erred in ordering that she not be joined. The plaintiffs sought certiorari.
The Points of Error Section to the Opening Brief. An opening brief must contain a section called the "points of error." HRAP Rule 28(b)(4). The points of error must contain "(i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court or agency." Id. When "the error involves a finding or conclusion of the court or agency, either a quotation of the finding or conclusion urged as error or reference to appended findings and conclusion" must be included in the point of error. Id. Points of error that do not comply with this section "will be disregarded, except that the appellate court, at its option, may notice a plain error not presented. Lengthy parts of the transcripts that are material to the points presented may be included in the appendix instead of being quoted in the point." Id.
Noncompliance with HRAP Rule 28 Could Prove Fatal to the Appeal . . . The HSC noted that Pflueger's argument that the circuit court erred in granting the motion for summary judgment involved findings and conclusions of the court and so HRAP Rule 28(b) required a quote or reference to the contested findings or conclusions. He didn't. "It is well settled that failure to comply with HRAP Rule 28(b)(4) is alone sufficient to affirm the circuit court's judgment." Morgan v. Planning Dept., 104 Hawai'i 173, 180, 86 P.3d 982, 989 (2004).
But noncompliance with the rule is not an automatic dismissal. The appellate courts adhere "to the policy of affording litigants the opportunity to have their cases heard on the merits, where possible[,]" id. at 180-81, 86 P.3d at 989-90, especially when the brief is competent enough for the court to identify the party's argument. See In re Estate of Damon, 119 Hawai'i 500, 503, 199 P.3d 89, 92 (2008); Liki v. First Fire Ins. & Cas. Ins. of Hawai'i, Inc., 118 Hawai'i 123, 126 n. 3, 185 P.3d 871, 874 n. 3 (App. 2008) (ICA noted that noncompliance with procedural rule immaterial to issues raised and noncompliance cured with reply brief).
. . . But not here. Here, Pflueger's brief quoted a single conclusion of law in the points of error section. In the argument, however, he elaborated by quoting FOF 102, which is nearly identical to the conclusion in the points of error part. And although FOF 104 is not directly cited, it is also part of the challenge that Huddy-Yamamoto would not be prejudiced. The HSC held that there was no error by the ICA in reviewing this point of error. Pflueger substantially complied with HRAP Rule 28(b) by identifying the conclusion of law that was nearly identical to the findings of fact that were not part of the point of error. Moreover, the missing findings were challenged in the argument section and additionally, Pflueger raised this issue at trial albeit improperly. According to the HSC, this argument was "conspicuous, and plaintiffs understood the issue on appeal sufficiently to provide the court with a thorough response on the merits." Thus, the substantial compliance with HRAP Rule 28 warranted review and the ICA did not have to review it for plain error.
Justice Acoba's Dissent (or Concurrence?). Justice Acoba took another approach. He agreed that FOF 102 and 104, which were not quoted, were redundant with COL 12, which was part of the points of error section. In either event, all there were actually the same conclusion of law: Huddy-Yamamoto was not prejudiced by the lawsuit and refusing to participate in it. That meant that Pflueger challenged a single conclusion without challenging a finding of fact. Unless challenged, a finding of fact is binding on the appellate court. Kelly v. 1250 Oceanside Partners, 111 Hawai'i 205, 227, 140 P.3d 985, 1007 (2006); Poe v. Hawai'i Labor Rel. Bd., 97 Hawai'i 528, 536, 40 P.3d 930, 938 (2002).  "Findings of fact that are unchallenged on appeal are the operative facts of a case." Wisdom v. Pflueger, 4 Haw. App. 455, 459, 667 P.2d 844, 848 (1983).
Because findings of fact are the underpinnings of legal conclusions, "an attack on a conclusion which is supported by a finding is not an attack on that finding." Id. at 459, 667 P.2d at 848. Attacking only the conclusion, but not the finding is normally a "fatal error." Id. And so, Pflueger's failure to quote challenged findings would normally bind the appellate courts in its review of the conclusion of law. But Justice Acoba wrote that appellate courts have the power to take a proper course of action when a brief does not comply with the HRAP. HRAP Rule 30. The discretion that the ICA can take includes review of the issue in light of the policy of hearing a case on its merits. Thus, there was no real need to determine whether the ICA erred in finding plain error and in determining "substantial compliance" with HRAP Rule 28. For Justice Acoba, there was noncompliance, but that was not the end of the matter. Noncompliance can be disregarded to further the policy of hearing the merits.
The Majority's Last Word. The majority took issue with Justice Acoba's position. It noted that his position would require "that anytime a trial court's FOF/COL contain any repetition, an opening brief must always quote each instance of the repeated finding, otherwise the binding quality of any unquoted finding will negate the review of any properly-raised points of error." The majority noted that this interpretation of HRAP Rule 28 would be too strict of an application and run afoul with the policy of hearing cases on their merits.
Noncompliance v. Substantial Compliance: Distinction Without Difference? The disagreement among the justices appears to be whether Plueger's brief substantially complied with HRAP Rule 28 or whether it did not comply and the ICA properly exercised its discretion in reviewing the issue anyway. Is this a distinction without difference? Maybe. If a brief does not identify all of the findings of fact it is going to challenge, then it probably did not comply with HRAP Rule 28 and it will be up to the ICA to review the issue. If it "substantially complied," then the ICA will have to review it and has no discretion. But who determines "substantial compliance"? Probably the ICA once the other side challenges the adequacy of the point of error. In the end it would come down to whether the ICA should conclude (pun fully intended) "substantial compliance" and review the issue or whether the ICA should conclude noncompliance and then determine whether to review the case anyway.

So What Happened in this Case? Having concluded that the ICA did not err in reviewing the issue on its merits, the HSC held that the ICA erred in its ruling on the merits. According to the HSC, the circuit court did not abuse its discretion in determining that Huddy-Yamamoto was not an indispensable party to the lawsuit. So the ICA got reversed anyway.

Monday, May 23, 2011

Non-party's Privileged Documents not Subject to Subpoena or In Camera Review

Naipo v. Border (HSC May 18, 2011)

Background. Eshell Mitchell sued the Yuen family after Braddah, the Yuen dog, bit her. At the time of the incident, Mitchell was living with Jennifer Naipo. Mitchell claimed that the Naipo was bitten several times by Braddah several months before it bit her. The Yuens denied that their dog had bitten anyone. Naipo was deposed. She didn't have a lawyer. The Yuen's lawyer told her that she could refuse to answer a question that she believed invaded her personal privacy. Naipo answered all the questions. Naipo testified that she was not taken to the hospital for an injury to her forehead but that she went to the Wahiawa Hospital because a different Yuen dog, Misty, had been bitten her several times on the arm. Mitchell deposed Nanea Yuen. Nanea testified that Misty bit Naipo on her forehead, not her arm, and that they had to go to the hospital for that. In light of the conflicting testimony, Mitchell sought a subpoena duces tecum for hospital records from Wahiawa General Hospital.

Naipo, now with a lawyer, moved to quash the subpoena on the grounds that the records were protected from disclosure under Hawai'i Rules of Evidence (HRE) Rule 504, the Hawai'i Constitution, and the federal Health Insurance Portability and Accountability Act (HIPAA). The motion was denied and the court ordered that it would receive the records for an in camera review and that any disclosed records to the parties would be subject to a stipulated qualified protective order. Naipo moved for a stay and petitioned mandamus to the HSC.

Writ of Mandamus Appropriate for Discovery Order Releasing Confidential Files. A writ of mandamus will not issue unless the petitioner shows "a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action." Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999). It is appropriate when a court "issues an order releasing confidential files . . . and the order is not immediately appealable." Brende v. Hara, 113 Hawai'i 424, 429, 153 P.3d 1109, 1114 (2007). A discovery order is not immediately appealable and appropriate for mandamus review . Id.

The Physician-Patient Privilege. "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." Hawai'i Const. Art. I, Sec. 6. This right to privacy includes "the right to keep confidential information which is highly personal and intimate." Brende v. Hara, 113 Hawai'i at 430, 153 P.3d at 1116. "Health information is highly personal and intimate information[.]" Id.

There's also an evidentiary privilege:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, medical, or emotional condition, including alcohol or drug addiction, among oneself, the patient's physician, and persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient's family.

HRE Rule 504(b). A 504(b) "communication" includes those "made by exhibition or by submission to inspection, as well as by oral or written narration or utterance." State v. Moses, 103 Hawai'i 111, 123, 80 P.3d 1, 13 (App. 2002). The HSC, relying on a case from Illinois, held that information about a patient "deserves the protection of confidentiality that the legislature envisioned." Parkson v. Central DuPage Hospital, 435 N.E.2d 140, 143 (Ill. App. Ct. 1982). "[A]llow[ing] the disclosure of communications involving patients who are not parties to the litigation would neither serve a public interest nor the private interests of those non-party patients." Id.

The HSC held that Jennifer Naipo is not a party to the lawsuit between the Yuens and Mitchell. Her health information in the records from the Wahiawa hospital is protected by the constitutional right to privacy and the privilege under HRE Rule 504(b).

Disclosure Waives the Privilege. A person with a privilege waives it, "if, while the holder of the privilege, the person or the person's predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter." HRE Rule 511. Intentional disclosure of privileged material "eliminates the need for the privilege in that instance." Commentary to HRE Rule 511. Waiver arises when the disclosure is voluntary. Save Sunset Beach Coalition v. City and County of Honolulu, 102 Hawai'i 465, 485, 78 P.3d 1, 21 (2003).

The Cabrinha Rule: Disclosure of Privileged Information is not Voluntary Without Express Advisement of the Existence of the Privilege. The HSC relied upon Territory v. Cabrinha, 24 Haw. 621, (Terr. 1919). In that case, the defendant was subpoenaed to appear before a grand jury, which was investigating whether he committed a crime. When he got there, the attorney general advised him that he could refuse any questions posed to him. Cabrinha answered all of the questions, and based on those answers, the grand jury indicted him. Cabrinha moved to quash the indictment; it was denied, and the Territorial Supreme Court affirmed. According to the HSC, Cabrinha established that "subpoenaed testimony on a privileged matter is voluntary, and the applicable privilege is waived, when the witness is expressly advised of the privilege and testifies without asserting the privilege." Applying the Cabrinha rule, the HSC held that Naipo was not adequately advised of her privilege to refuse to answer questions about the treatment of her physical condition at the hospital. The advise that she didn't have to answer questions that invaded her privacy was simply inadequate. The HSC thus held that her disclosure of the answers did not constitute a waiver pursuant to HRE Rule 511.

Privilege is Absolute: In Camera Review Inappropriate. An evidentiary privilege protects "a personal right of confidentiality that is recognized to be of greater societal importance than the principle of free disclosure of all relevant evidence in a judicial proceeding." HRE Rule 511 Commentary. Having held that the medical records were protected by the physician-patient privilege and having held that Naipo did not waive that privilege, the HSC then held that even though there may be relevant evidence in those records, the right to keep them confidential prevents any disclosure, including an in camera review by the trial court.

The Perplexing Footnote. At first blush, it would seem that that was that. Privileged materials cannot be disclosed, not even to the court for inspection. But, the HSC noted that there was no indication that an in camera record would establish evidence of an exception to the privilege. United States v. Zolin, 491 U.S. 554, 572-75 (1989). Thus, in this particular case, there was no need for any kind of disclosure.

What makes that footnote interesting is that when privilege is raised, there may just be an exception to the privilege in the materials themselves. At the very least, counsel would probably want the court to review the subpoenaed materials for exceptions to the privilege at issue. Better luck next time.

Saturday, April 30, 2011

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.

Wednesday, March 16, 2011

Order Granting New Trial Subject to Mandamus Review

Murasko v. Loo (HSC March 7, 2011)

Background. The Muraskos filed a petition for a temporary restraining order (TRO) and injunction against their neighbors, the Curells. District Court Judge Loo reviewed the petition, granted the TRO, and set a hearing to determine a longer injunction. The Curells, appearing pro se, filed a response denying the allegations. At the hearing, the parties presented evidence, Judge Loo granted the petition, and ordered a three year injunction to take effect August 10. On August 12, the Curells, now with counsel, filed a motion for an extension of time in order to file "post-verdict motions." Counsel for the Curells explained in the motion that he had been retained on August 5, and was unable to file any motions because he would be on vacation from August 11 through August 18. Counsel wanted to extend the time to Sept. 1. The district court granted the motion.

On Sept. 1, the Curells filed a motion for a new trial pursuant to District Court Rules of Civil Procedure (DCRCP) Rule 59. The Muraskos argued that new trial was not permissible because DCRCP Rule 6(b) prohibited Judge Loo from extending the time for moving for a new trial. At a hearing on the motion, Judge Loo rejected the Muraskos' argument, granted the Curells' motion, and ordered a new trial. The new trial was taken off the calendar when the Muraskos petitioned the HSC for mandamus review.

Writs of Mandamus. A writ of mandamus "is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action." Kema v. Gaddis, 91 Hawai'i 200, 204, 982 P.2d 334, 338 (1999). These writs are not supposed to "supersede the legal discretionary authority of the lower court, nor are they meant to serve as legal remedies in lieu of normal appellate procedures." Id.

Review of a Lower Court's Granting of a new Trial Allow a writ of Mandamus. The HSC, in determining whether granting a new trial warranted review of a writ of mandamus, turned to Moore's Federal Practice.

In general, an order granting a new trial is interlocutory and destroys the finality of the judgment; as such an order granting a new trial is not an appealable order . . . . In such a case, neither party ordinarily may appeal until after a final judgment is entered on retrial. However, on occasion courts have treated the grant of a new trial as a final appealable order when the court's authority to issue the new trial order is challenged. Because this line of authority undermines the concept of finality, however, the better view is that appellate review should be available, if at all, through an extraordinary writ, if the losing party does not wish to wait for the subsequent entry of a final judgment. An extraordinary writ enables the appellate court to review orders granting a new trial that are not appealable.

12 Moore's Federal Practice, § 59.50 at 133-34. The HSC adopted Professor Moore's "better view" and held that although the order granting a new trial is not immediately appealable because it is not a final order, it may be reviewed in an original proceeding for a writ of mandamus.

Moore's View: More Review, less Trials. This case has increased the HSC's docket to include immediate review of any and all orders granting a new trial. Moore's approach is a practical and sensible one. Rather than go through the expense, time, and hardship of yet another trial (there's a reason why they are called trials in the first place), wading through the post-trial motions, and appealing from the final judgment, parties can directly petition to the HSC to determine whether a new trial is warranted.

The District Court's Procedural Oddities. First off, the DCRCP do not apply to "actions for relief from harassment pursuant to" HRS § 604-10.5. DCRCP Rule 81(a)(4). But, when "a civil proceeding is not governed by the [DCRCP] . . . [t]he court may designate and order that any one or more of the [rules] shall be applicable in such case." Rules of the District Court (RDC) Rule 31(a)(5). When the district court makes a RDC Rule 31 designation, it "should expressly state so for the record." Chang v. Berc, 101 Hawai'i 167, 170 n. 4, 64 P.3d 948, 951 n. 4 (2003).

Here, the HSC held that the DCRCP was inapplicable to the Muraskos' action. However, the district court implicitly invoked RDC Rule 31 by granting the Curells' motion for an extension of time in order to file post-verdict motions pursuant to DCRCP Rules 59 and 60. According to the HSC, that meant that Judge Loo granted the new trial based on DCRCP Rule 59 and not based on her inherent authority.

DCRCP Rules are Mandatory: No Extensions Allowed. "A motion for new trial shall be served not later than 10 days after the entry of the judgment." DCRCP Rule 59(b). When these rules require that an act be done within a specified time, "the court for cause shown may at any time in its discretion . . . order the period enlarged if request therefore made before the expiration of the period originally prescribed . . .; but it may not extend the time for taking any action under Rule . . . 59(b)[.]" DCRCP Rule 6(b). The HSC held that there being no exceptions for the 10-day rule in DCRCP Rule 59(b), the time to file a motion for a new trial cannot be extended by the district court. Thus, the Curells' motion for a new trial was untimely filed and should not have been granted. The HSC granted the petition for writ of mandamus and reinstated the Aug. 10 injunction.

What if the DCRCP Wasn't Invoked? The HSC held that the district court implicitly invoked RCD Rule 31, in granting the motion to extend time. That meant that the DCRCP applied. In doing so, the HSC declined to address the Curells' argument that the district court had an inherent power to extend the deadline. But what if the rule hadn't been applied? Would the district court have the inherent power to extend the deadline? This raises another question: the deadline for what? A motion for new trial pursuant to the DCRCP? That would be a tautology. So for that argument to work, the district court would have to have the inherent power to not only extend a deadline but to review and grant a new trial without invoking the DCRCP. Perhaps it does. But it seems awfully strange since the DCRCP has a set of rules for this particular motion. Who knows what strange procedures will emerge from the district court?

Thursday, September 9, 2010

Agency Hears Claims First, Constitutional Claims come Later

HGEA v. Lingle (HSC September 8, 2010)

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

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

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

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

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

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

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

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

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

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

Tuesday, March 30, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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