More on SCOTUS cert. petitions

Petitioning and Opposing Certiorari in the U.S. Supreme Court
By Timothy S. Bishop and Jeffrey W. Sarles of Mayer Brown LLP

Criminal conviction as evidence in a civil suit

The Hawaii Supreme Court addressed the issue in Asato v. Furtado, 474 P.2d 288, 52 Haw. 284 (Haw. 1970), in which the trial court had refused to admit as evidence in a personal injury suit arising from an automobile accident the defendant’s conviction for heedless and careless driving in a prior criminal jury trial for the same incident. The Supreme Court reversed, providing the following analysis (citations omitted) -

Where an identical issue of fact was necessarily decided, in a judgment on the merits, in a former trial where the party against whom it is now offered was a party, and where he had a full and fair opportunity to litigate the issue, we think the prior judgment is entitled to some evidentiary weight. This is especially true where the prior judgment was a criminal one, because of the extensive safeguards afforded defendants in criminal trials. In addition to the right to counsel, and in many cases the right to a jury trial, the defendant has the additional advantage provided by the reasonable doubt standard.

[A]lthough not conclusive, the prior judgment should be admissible as evidence where the following factors are present: (1) It must be shown that the issue on which the judgment is offered was necessarily decided in the prior trial. (2) A judgment on the merits must have been rendered. (3) It must appear that the party against whom the judgment is offered had a full and fair opportunity at the prior hearing to litigate the claim, and especially to contest the specific issue on which the judgment is offered. In other words, it must appear that the party against whom the judgment is offered had a full and complete “day in court” on that issue, with the opportunity to call and cross-examine witnesses and to be represented by counsel. Where these requirements are met, there is good authority for the proposition that the prior judgment is entitled to evidentiary weight.
…

Under [this] rule…it will be possible to admit the convictions that seem reliable and trustworthy indicators, be they for major or minor offenses, based upon whether the proceedings leading to each conviction seem to have afforded the defendant a full and complete opportunity to have his day in court, while avoiding use of convictions that seem unreliable because they are based upon proceedings that were largely perfunctory.

Even where a conviction is admissible, it is not conclusive evidence, and the party against whom it is admitted may rebut it by other evidence.

The Supreme Court clarified that, while the conviction was admissible as evidence, it was not admissible for impeachment because “a conviction for heedless and careless driving bears no rational relation to a witness’ credibility.”

Finally, the appellate court reversed the trial court’s refusal to admit the prior transcript for impeachment where the defendant’s testimony had been at variance with his prior testimony in the criminal trial.

Hawaii Supreme Court expands criminal defendants’ right to counsel

The U.S. Constitution’s Sixth Amendment right to assistance of counsel does not give a criminal defendant the right to confer with counsel during breaks in trial when the defendant is testifying. (In other words, when the defendant is on the stand, and the court takes a short break, the court doesn’t have to let the defendant confer with his or her attorney).

However, as of today, Article I, Section 14 of the Hawaii Constitution does guarantee such a right. In State v. Mundon, No. 28448, slip op. (Hawaii November 13, 2009),the Hawaii Supreme Court announced that “a criminal defendant has a constitutional right to confer with counsel at all stages of his case, including recesses taken during his testimony” Id. at 61 (emphasis in original).

[W]e adopt the …proposition that any order barring communication between a defendant and his attorney, at least when that communication would not interfere with the orderly and expeditious progress of the trial, violates a criminal defendant’s state constitutional right to counsel.

(The court emphasized that the trial court retains its discretion over whether, when, and for how long to grant recesses and that this opinion doesn’t mean that a trial court is required to call a recess whenever a defendant wishes to confer with counsel.)

Unfortunately for the defendant Mundon, this newly minted right failed to carry the day since a majority of the court decided to review such errors under the ‘harmless beyond a reasonable doubt’ standard – a sort of ‘no-harm-no-foul’ rule under which, if there was no reasonable possibility that the trial court’s error contributed to the defendant’s conviction, then the error was harmless and not grounds for overturning the conviction.The majority determined that such was the case here.

Nevertheless, luckily for the defendant he didn’t need the assistance of counsel issue and most of his convictions were vacated and remanded for a new trial on separate grounds; and the defendant hit a home run when the court reversed his remaining conviction (on a terroristic threatening charge) on grounds that the court failed to provide the jury with a ’specific unanimity instruction.’

(This is actually an interesting issue (at least for the defense bar) and deserves its own post. But briefly: the defendant was charged with two separate counts of terroristic threatening. One involved allegedly threatening the complaining witness in a truck with a knife, and the other involved allegedly threatening the complaining witness later outside the truck with the knife.  He was convicted of one count and acquitted of the other. However, it was never made clear to the jury which incident corresponded to which count. So it was impossible to tell whether the jury was unanimous (as required for a conviction) that the defendant had committed the acts of one of the counts, or whether some of the jury thought he was guilty of one of the counts while others on the jury thought he was guilty of the other count. In other words, it is impossible to know, when the jury was voting on whether the defendant was guilty of one of the terroristic threatening charges, whether they were all thinking of the same incident or whether some were thinking of the incident inside the truck while others were thinking of the incident outside the truck. Because he had been acquitted of one of the counts, but nobody could say which one, it would potentially violate the defendant’s Fifth Amendment right against double jeopardy to try him again on either count. Thus his conviction on that count was reversed rather than vacated and remanded.)

Another cert petition article

Obtaining Certiorari In The United States Supreme Court

Unfortunately, the previous article I linked to has disappeared behind a registration wall.

Prosecutorial Misconduct

The term “prosecutorial misconduct” is a legal term of art that refers to any improper action committed by a prosecutor, however harmless or unintentional. State v. Maluia 107 Hawai’i 20, 25, 108 P.3d 974, 979 (Hawai‘i,2005). That the prosecution must be held to a standard higher than “good faith” is a proposition long established and fundamental to the prosecution’s role in the criminal law system. The prosecutor’s obligation is to do justice and not simply to convict. See State v. Wong, 97 Hawai‘i 512, 527, 40 P.3d 914, 929 (2002). State v. Maluia 107 Hawai’i 20, 28, 108 P.3d 974, 982 (Hawai‘i,2005).

Prosecutorial misconduct warrants a new trial or the setting aside of a guilty verdict where the actions of the prosecutor have caused prejudice to the defendant’s right to a fair trial, State v. McGriff, 76 Hawai`i 148, 158, 871 P.2d 782, 792 (1994), and where there is a reasonable possibility that the error complained of might have contributed to the conviction. State v. Rogan, 91 Hawai`i 405, 412, 984 P.2d 1231, 1238 (1999) (internal quotation marks and citations omitted) (quoting State v. Sawyer, 88 Hawai`i 325, 329 n. 6, 966 P.2d 637, 641 n. 6 (1998)).

“In order to determine whether the alleged prosecutorial misconduct reached the level of reversible error, we consider the nature of the alleged misconduct, the promptness or lack of a curative instruction, and the strength or weakness of the evidence against defendant.” State v. Agrabante, 73 Haw. 179, 198, 830 P.2d 492, 502 (1992); see also State v. Bunch, 180 N.J. 534, 853 A.2d 238, 246 (2004).

Hawaii Law on Investigatory Detentions

This analysis is lifted verbatim from State v. Estabillio,  No. 28950, slip op. at 21-23 (Hawaii October 26, 2009), holding that a traffic stop for speeding and vehicle registration infractions was constitutional inasmuch as it was based on “specific and articulable facts,” but that a subsequent dog sniff of outside of vehicle was unsupported by reasonable suspicion and, thus, was unconstitutional under article I, section 7 of the Hawaii Constitution.

Article I, section 7 of the Hawai`i Constitution, states in relevant part that “[t]he right of the people to be secure in their persons . . . against unreasonable searches, seizures and invasions of privacy shall not be violated[.]” We have previously stated that:

A stop of a vehicle for an investigatory purpose constitutes a seizure within the meaning of the constitutional protection against unreasonable searches and seizures. Kernan v. Tanaka, 75 Haw. 1, 37, 856 P.2d 1207, 1225 (1993), cert. denied, 510 U.S. 1119 (1994).

In determining the reasonableness of wholly discretionary automobile stops, this court has repeatedly applied the standard set forth in Terry v. Ohio, 392 U.S. 1 (1968). See State v. Bonds, [59 Haw. 130, 577 P.2d 781 (1978)]; State v. Ogata, 58 Haw. 514, 572 P.2d 1222 (1977); State v. Barnes, 58 Haw. 333, 568 P.2d 1207 (1977); State v. Goudy, 52 Haw. 497, 479 P.2d 800 (1971). Guided by Terry, we stated in State v. Barnes:

To justify an investigative stop, short of arrest based on probable cause, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” [Terry, 392 U.S.] at 21. The ultimate test in these situations must be whether from these facts, measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate.

58 Haw. at 338, 568 P.2d at 1211 (citations omitted).

Bolosan, 78 Hawai`i at 92, 890 P.2d at 679 (emphases added)(citation omited) (some brackets in original).

Additionally, we stated in In re Doe, 104 Hawai`i 403,91 P.3d 485 (2004), overruled on other grounds in, In re Doe, 105 Hawai`i 505, 100 P.3d 75 (2004), — cited with approval in Perez, discussed infra, — that

“[d]etermining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the . . . action was justified at its inception,’ [Terry, 392 U.S. at 20]; second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place[.]’”

104 Hawai`i at 408, 91 P.3d at 490 (citation omitted) (emphases added). Put differently,

it is well settled that a temporary investigative detention must, of necessity, be truly temporary and last no longer than is necessary to effectuate the purpose of the detention — i.e., transpire for no longer than necessary to confirm or dispel the officer’s reasonable suspicion that criminal activity is afoot. In other words, a temporary investigative detention must be reasonably related in scope to the circumstances which justified the detention in the first place, and, thus, must be no greater in intensity than absolutely necessary under the circumstances.

Kaleohano, 99 Hawai`i at 379, 56 P.3d at 147 (emphasis added)(citation omitted) (format altered).

Cert petition tips

“How to Get Your Cert Petition Granted” – Law360

Statutory interpretation: is “shall” mandatory or discretionary?

Of course, everyone’s first guess is, mandatory.  But, in his Legal Writing in Plain English, Bryan Garner devotes a section to the word “shall” in which he recommends that legal drafters not use it – first of all, because it is not plain English, but also because “the vast majority of drafters don’t know how shifty to word is.”

In State v. Shannon, 185 P.3d 200 (Haw. 2008), the Hawaii Supreme Court took up the question when interpreting HRS § 706-624(3) regarding conditions of probation, in which is stated:

The defendant shall be given a written copy of any requirements imposed pursuant to this section, stated with sufficient specificity to enable the defendant to comply with the conditions accordingly.

In declining the state’s invitation to adopt an “actual notice” rule in which “receipt of actual, oral notice” of the conditions at a hearing would be sufficient, the court provided the following analysis:

[I]t is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. See Gray v. Admin. Dir. of the Court, 84 Hawai`i 138, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997) (observing that “[t]he word `shall’ is generally construed as mandatory in legal acceptation”); Voellmy v. Broderick, 91 Hawai`i 125, 129-30, 980 P.2d 999, 1003-04 (App.1999) (declaring that “[t]he word `shall’ `must be given a compulsory meaning . . . and is inconsistent with a concept of discretion’” (quoting Black’s Law Dictionary 1375 (6th ed.1990) (other citation omitted))); but see Narmore v. Kawafuchi, 112 Hawai`i 69, 83, 143 P.3d 1271, 1285 (2006) (noting that “[w]hile the word `shall’ is generally regarded as mandatory, in certain situations it may properly be given a directory meaning” (quoting Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 616-17, 585 P.2d 1265, 1269 (1978) (citation omitted)))…

Additionally, this court has interpreted the word “shall” as “directory” rather than mandatory only where a three part test has been satisfied.

In Perry [v. Planning Comm'n of Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980)], this court articulated a three-prong test for determining when the word “shall” may be interpreted as directory. First, “shall” can be read in a non-mandatory sense when a statute’s purpose “confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word `shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to the individual, by giving it that construction.” Id. at 677, 619 P.2d at 103.

Leslie v. Bd. of Appeals of County of Hawai`i, 109 Hawai`i 384, 394, 126 P.3d 1071, 1081 (2006) (emphases added).

Yet another Hawaii standards of review compendium

This one comes to us from Sierra Club v. Dep’t of Transportation of Hawaii, No. 29035, slip op. at 20-24 (Hawaii May 13, 2009), the amended opinion in the “Superferry case” holding that Act 2 – legislation “to facilitate the establishment of inter-island ferry service” – was “a special law in violation of Article XI, section 5 of the Hawai`i Constitution, [and that the] circuit court thus erred when it concluded that Act 2 was constitutional and dismissed Sierra Club’s claims as moot.”

STANDARDS OF REVIEW

A. Legislative Enactments

This court has long held that:

(1) legislative enactments are presumptively constitutional;

(2) a party challenging a statutory scheme has the burden of showing unconstitutionality beyond a reasonable doubt; and

(3) the constitutional defect must be clear, manifest, and unmistakable.

Pray v. Judicial Selection Comm’n, 75 Haw. 333, 340, 861 P.2d 723, 727 (19 93) (internal quotation marks, citations, and brackets omitted) (quoting Sifaqaloa v. Bd. of Trustees of the Employees’ Ret. sys., 74 Haw. 181, 191, 840 P.2d 367, 371 (1992)). However, this court has recognized that judicial review of legislative enactments is appropriate, stating that the legislature’s findings are entitled to substantial deference; however, “[A]merican legislatures muse adhere to the provisions of a written constitution. . . . Our ultimate authority is the Constitution; and the courts, not the legislature, are the ultimate interpreters of the Constitution. It is the concept of the Constitution as law, and the judiciary as the institution with responsibility to interpret the law, which remains the cornerstone of judicial review today.” Convention Ctr. Authority v. Anzai, 78 Hawai’i 157, 164, 890 P.2d 1197, 1204 (1995) (quoting State v. Nakata, 76 Hawai’i 360, 370, 878 P.2d 699, 709 (1994)).

B. Constitutional Questions

“Issues of constitutional interpretation present questions of law that are reviewed de novo.” Blair v. Harris, 98 Hawai’i 176, 178, 45 P.3d 798, 800 (2002) (citation omitted). In construing the constitution, this court observes the following basic principles:

Because constitutions derive their power and authority from the people who draft and adopt them, we have long recognized that the Hawaii Constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent. This intent is to be found in the instrument itself.

[T]he 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. In this regard, the settled rule is that in the construction of a constitutional provision the words are presumed to be used in their natural sense unless the context furnishes some ground to control, qualify, or enlarge them.

Moreover, a constitutional provision must be construed in connection with other provisions of the instrument, and also in the light of the circumstances under which it was adopted and the history which preceded it.

Hanabusa v. Lingle, 105 Hawai’i 28, 31-32, 93 P.3d 670, 673-74 (2004) (brackets in original) (quoting Blair v. Harris, 98 Hawaii 176, 178-79, 45 P.3d 798, 800-01 (2002)).

C. Mootness

Mootness is a question of law. See Hamilton ex rel. Lethem v. Lethem, 119 Hawai’i 1, 4-5, 193 P.3d 839, 842-43 (2008). A trial court’s conclusion of law is not binding upon an appellate court and is freely reviewable for its correctness. This court ordinarily reviews [conclusions of law] under the right/wrong standard. Thus, a [conclusion of law] that is supported by the trial court’s findings of fact and that reflects an application of the correct rule of law will not be overturned. However, a [conclusion of law] that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the court’s conclusions are dependent upon the facts and circumstances of each individual case.

State v. Reis, 115 Hawai’i 79, 84, 165 P.3d 980, 985 (2007) (internal quotation marks, citations, and original brackets omitted) (quoting Allstate Ins. Co. v. Ponce, 105 Hawai’i 445, 453, 99 P.3d 96, 104 (2004)).

D. Motion to Dissolve Injunction

Generally, the granting or denying of injunctive relief rests with the sound discretion of the trial court and the trial court’s decision will be sustained absent a showing of a manifest abuse of discretion. Abuse of discretion may be found where the trial court lacked jurisdiction to grant the relief, or where the trial court based its decision on an unsound proposition of law.

Hawai’i Pub. Employment Relations Bd. v. United Pub. Workers, Local 646, AFSCME, AFL-CIO, 66 Haw. 461, 467-68, 667 P.2d 783, 788 (1983) (internal citations omitted). Accordingly, a trial court’s decision to dissolve an injunction is reviewed for an abuse of discretion.

E. Motion to Vacate

A circuit court’s grant or denial of a motion to vacate is reviewed for abuse of discretion. Beneficial Hawai’i, Inc. v. Casey, 98 Hawai’i 159, 164, 45 P.3d 359, 364 (2002).

The trial court abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Stated differently, an abuse of discretion occurs where the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant. Id. (internal quotations omitted) (quoting Molinar v. Schweizer, 95 Hawai’i 331, 335, 22 P.3d 978, 982 (2001)).

F. Determination of Prevailing Party

Our determination of who is the prevailing party involves interpretation of the [Hawai'i Administrative Rules (HAR)] and the (HRCP), both of which are rules promulgated by the court. “When interpreting rules promulgated by the court, principles of statutory construction apply.” Price v. Obayashi Hawaii Corp., 81 Hawai’i 171, 176, 914 P.2d 1364, 1369 (1996) (citing State v. Lau, 78 Hawai’i 54, 58, 890 P.2d 291, 295 (1995)). “Interpretation of a statute is a question of law which we review de novo.” Price, 81 Hawai’i at 176, 914 P.2d at 1369 (citation omitted). Consequently, we interpret the HAR and the HRCP de novo.

Molinar, 95 Hawai’i at 334-35, 22 P.3d at 981-82.

G. Statutory Interpretation

The standard of review for statutory construction is well-established. The interpretation of a statute is a question of law which this court reviews de novo. Where the language of the statute is plain and unambiguous, our only duty is to give effect to its plain and obvious meaning.

Liberty Mut. Fire Ins. Co. v. Dennison, 108 Hawai’i 380, 384, 120 P.3d 1115, 1119 (2005) (internal quotations omitted) (quoting Labrador v. Liberty Mut. Group, 103 Hawai’i 206, 211, 81 P. 3d 386, 391 (2003) ).

H. Evidentiary Rulings

As a general rule, this court reviews evidentiary rulings for abuse of discretion. Kealoha v. County of Hawai’i, 74 Haw. 308, 319, 844 P.2d 670, 676 (1993). However, when there can only be one correct answer to the admissibility question, or when reviewing questions of relevance under [Hawai'i Rules of Evidence (HRE)] Rules 401 and 402, this court applies the right/wrong standard of review.

Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai’i 92, 104, 176 P.3d 91, 103 (2008).

I. Award, of Attorney’s Fees and Costs

“The trial court’s grant or denial of [attorney's] fees and costs is reviewed under the abuse of discretion standard.” Kamaka, 117 Hawai’i at 105, 17 6 P. 3d at 104 (original brackets and internal quotations omitted) (quoting Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai’i 251, 266, 151 P.3d 732, 747 (2007)).

Happy birthday, inversecondemnation.com

Congrats to attorney Robert Thomas’s inversecondemnation.com, a blog long devoted (three years now) to developments and commentary on regulatory takings, eminent domain, inverse condemnation, property rights, and Hawaii land use law.