Thompson doesn’t apply to complaints without a warrant or summons (and it doesn’t apply to any complaints after March 28, 2022).

 State v. Mortensen-Young (HSC March 15, 2023)

Background. This is a consolidated appeal in which all three defendants have the same operative facts. In 2021, Raven Mortensen-Young, Marlin Tornquist Tucker, Ryan Wood, and Lance Oshima were arrested under suspicion of operating a vehicle while under the influence of an intoxicant. They all posted a bond, released from custody, and given a court date. During that time, the prosecution filed complaints and served them at their return dates. The complaints included a line for prosecutors to declare under penalty of law that the “foregoing is true and correct to the best of my knowledge and belief.” No warrants or summons were issued.

 

The defendants moved to the dismiss the complaints on the grounds that the complaint was not supported by the complainant’s signature and a declaration in lieu of an affidavit thereby violating Hawai'i Revised Statutes (HRS) § 805-1 and the holding in State v. Thompson, 150 Hawai'i 262, 500 P.3d 447 (2021). The motions were granted. The State appealed and transferred the case to the HSC.

 

HRS § 805-1, Thompson, and the bonanza in 2021. Before it was amended, HRS § 805-1—for cases before March 28, 2022—stated the following:

 

When a complaint is made to any prosecuting officer of the commission of any offense, the prosecuting officer shall examine the complaint, shall reduce the substance of the complaint to writing, and shall cause the complaint to be subscribed by the complainant under oath, which the prosecuting officer is hereby authorized to administer, or the complaint shall be made by declaration in accordance with the rules of court. If the original complaint results from the issuance of a traffic summons or a citation in lieu of an arrest pursuant to section 803-6, by a police officer, the oath may be administered by any police officer whose name has been submitted to the prosecuting officer and who has been designed by the chief of police to administer the oath, or the complaint may be submitted by declaration in accordance with the rules of court. Upon presentation of the written complaint to the judge in whose circuit the offense allegedly has been committed, the judge shall issue a warrant, reciting the complaint and requiring the sheriff, or other officer to whom it is directed, except as provided in section 805-3, to arrest the accused and to bring the accused before ethe judge to be dealt with according to law; and in the same warrant the judge may require the officer to summon such witnesses as are named in the warrant to appear and give evidence at trial. The warrant may be in the form established by the usage and practice of the issuing court.

 

Id.

 

In State v. Thompson, the defendant challenged the initiation of the prosecution against him on the grounds that the complaint signed by the deputy prosecuting attorney, did not include an affidavit or declaration required by HRS § 805-1. Id. at 264, 500 P.3d at 449. The prosecution in that case was initiated by the filing of a complaint and the issuance of a penal summons. Id. The HSC agreed with Thompson and held that HRS § 805-1 “provides for only a single type of criminal complaint regardless of whether the complaint is used to initiate proceedings through an arrest warrant or a penal summons.” Id. at 267, 500 P.3d at 452. This statutory obligation applied “regardless of whether the State uses the complaint to seek a penal summons or an arrest warrant.” Id.

 

Distinguishing Thompson. The HSC held that this class of cases were different. In Thompson, the State initiated its prosecution by filing a complaint and getting the clerk to issue a penal summons. In this case, the defendants were arrested, posted bail, and were served with complaints when they came to court. There was no penal summons or arrest warrant issued with the complaint. The HSC noted that Thompson “did not hold that all complaints must satisfy the requirements of HRS § 805-1.” It was limited to complaints seeking a penal summons or an arrest warrant.

 

The HSC rejected the defendants’ arguments about what Thompson meant. In Thompson, the HSC looked to the legislative history in HRS § 805-1. It quoted the Senate Committee of Judiciary and Labor’s explanation that  “allowing the use of declarations in lieu of affidavits for arrest citations and traffic crime complaints is consistent with current rules of court, and would not harm the offender’s right to challenge the veracity of the officer.” Id. at 268, 500 P.3d at 453 (quoting S. Stand. Comm. Rep. No. 1194, in 2007 Senate Journal, at 1557-58.). According to the defendants, the purpose of HRS § 805-1 is to protect this “right to challenge the veracity of the complaint.” The HSC, however, concluded otherwise. It noted that the statute “would not harm” the right, which is different from protecting it.

 

The plain language of HRS § 805-1 does not apply when the State files a complaint without a summons or arrest warrant. “It is well-established that when a statute’s language is plain and unmistakable, the court is bound by the plain and clear unambiguous language of the statute.” Id. at 267, 500 P.3d at 452. The HSC held that the third sentence in HRS § 805-1 makes clear that the statute applies to complaints for an arrest warrant and Thompson makes it clear that it includes a penal summons. According to the HSC, nothing in HRS § 805-1 establishes that it applies to complaints that do not include either method of securing the defendant’s presence.

 

The HSC’s reading of HRS § 805-1 is supported by territorial precedent. There was an old difference between a complaint that allowed “the magistrate to determine whether or not there is probable cause to believe that an offense has been committed by the accused so as to justify his apprehension” and a complaint where the defendant is charged with a criminal offense. Territory v. Sing Kee, 14 Haw. 586, 587-588 (Terr. 1903). The complaint contemplated in the statute predating HRS § 805-1 is not the one “upon which the defendant is tried.” Id. It is simply to determine and support the issuance of a warrant. Id. This distinction prevailed throughout the territorial years. Territory v. Mix, 41 Haw. 163, 164 (1955); Territory v. Williams, 41 Haw. 348, 355 (1956).

The criminal proceedings here were properly initiated. The HSC agreed with the State that it properly initiated the proceedings against the defendants. First, it was undisputed that the police complied with a lawful arrest pursuant to HRS §§ 803-5 and 803-6(a). Second, because there was no arrest warrant or penal summons, the only authority governing the initiation of the prosecution was Hawai'i Rules of Penal Procedure (HRPP) Rule 7:

          (a) Use of Indictment, Information, or Complaint. The charge against a defendant is an indictment, a superseding indictment, an information, or a complaint filed in court. . . .

. . . .

          (d) Nature and Contents. The charge shall be a plain, concise and definite statement of the essential facts constituting the offense charged. . . . A complaint shall be signed by the prosecutor. . . .

 

That was all the State needed to do and the HSC held that it did.

 

Justice Wilson’s Dissent. Justice Wilson took issue with the HSC’s distinction between a statute that “would not harm” as opposed to “protect” the right to ensure the veracity of the complaint. For him, HRS § 805-1 plainly requires all complaints to “be subscribed . . . under oath” or “made by declaration in accordance with the rules of the court.” He wrote that the statute “mitigates the possibility that the facts which underlie a complaint are unfounded, retaliatory, or harassing.” Notwithstanding this plain language, Justice Wilson wrote that the majority excludes a class of defendants who were arrested, bailed out, and served a complaint without a summons or warrant from this right. He added that “in light of the need to protect Hawai'i’s people from abuse of prosecutorial authority, there is no logical reason to remove this statutory protection from people in Hawai'i who have been arrested without a warrant.”

 

He wrote that the importance of HRS § 805-1 cannot be understated. It “protects the integrity of the information that underlies the accusation that the defendant must face. Without it, there is no one to be held accountable for the truth or falsity of the contents of the complaint.” Removing this protection for defendants arrested without a warrant “serves no laudable purpose” and is “illogical.” For Justice Wilson, “[a]ll defendants are entitled to the opportunity to challenge the veracity of their accuser.”