Friday gecko blogging

Where I grew up, instead of geckos, we had these -

They had pleasant dispositions, as do geckos, and I caught many as "pets" as a child; but these guys, while not having detachable tails, had one very cool feature over geckos. They could squirt blood out of their eyes.

Great motions to dismiss

State v. Wheeler is a freshly filed Hawaii Supreme Court opinion that ruled that the operation of a vehicle "on a public way, street, road, or highway" is an essential element of the offense of Operating a Vehicle Under the Influence of an Intoxicant, and that a charge that omits the 'public street' element fatally fails to state an offense. This despite the fact that the statutory definition of "operate" specifies that it involves driving "upon a public way, street, road, or highway."

The decision's importance to the defense bar can be grasped if one imagines all the charges of OVUII currently before trial courts that omitted the newly essential language. But that's a boring point best left for stodgy, boring, self-important blogs like Hawaii Appellate Law Blog. The fun part of Wheeler was the defense attorney's dancing around his oral motion to dismiss on grounds that the charge failed to state on offense, without tipping off the prosecutor as to how to amend the charge.

Defense counsel said a couple of times that the defendant didn't understand the charges and asked that the prosecutor state them in "common vernacular" and avoid using "legally defined terms of art." The prosecutor said, essentially, 'What the hell?' and the court said, literally, "I don't know what you're talking about," and, "Can you be more specific?" Whereupon defense counsel said, "I don't wanna give the prosecution any more hints than I've already given them" because "my job isn't to come in here and teach 'em how to charge a case."

I love that.

Wheeler's counsel's "final hint" to the prosecution and the court was that his objection related to a "verb," but that the court said it was still unable to discern the nature of the objection, and proceeded with a non-jury trial.

Publishing pictures of DUI arrestees

Star Bulletin -

The Honolulu Police Department's plans to post the names and photos of alleged drunken drivers on a new Web page have disturbed some attorneys, who say it's unconstitutional and will infringe on the person's right to a fair trial.

Is it unconstitutional? I'm not so sure. Newspapers publish the names of arrestees in arrest reports. And the GI publishes the pictures of people with outstanding warrants. I imagine the First Amendment gives news outlets the right to publish public records. And a single picture of a suspect does not rise to the level of pretrial publicity that has been found by the courts as sufficient to have violated a defendant's Sixth Amendment right to an impartial jury.

The Supreme Court once reversed a federal appellate court's determination that extensive pretrial publicity of a violent crime violated a defendant's rights, even though it was shown that practically the entire jury pool had heard of the event. The Supreme Court said the publicity did not create a "wave of public passion that would have made a fair trial unlikely." Patton v. Yount, 467 U.S. 1025 (1984). And the Hawaii Rules of Penal Procedure provide for the transfer of proceedings to a different circuit if "there exists in the circuit where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial in the circuit."

The material difference here would be that it is the state, rather than the media, doing the publishing. Does that make a difference? I'm not sure, but the Hawaii Rules of Professional Conduct do allow a prosecutor to publicly reveal information such as the identity, residence, occupation and family status of the accused, and the fact, time and place of arrest, so long as the prosecutor does not make any statements having "a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

HOWEVER, on the flip-side, it could be argued that publication of the accused's photos is penal in nature and therefore violates the accused's right to due process. And that could be an argument the state supreme court might - might - sympathize with.

Kauai County manager would be unconstitutional, according to county attorney

In response to a request for an opinion on the Charter Review Commission's proposal to amend the charter to allow for a county manager form of government, the county attorney's office asserts that such a change would violate both the state constitution and state statutes. (Here's a copy of the opinion helpfully posted online by the Garden Island. Here's the GI's report).

The county attorney points to Article VIII, Sect. 2 of the Hawaii Constitution, which provides that -

Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law.

and

Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions.

And to HRS §46-1.5(1), which provides that -

Each county shall have the power to frame and adopt a charter for its own self-government that shall establish the county executive, administrative, and legislative structure and organization, including but not limited to the method of appointment or election of officials, their duties, responsibilities, and compensation, and the terms of their office

The county attorney reads the specific mention in both texts of the "executive, legislative and administrative structure" as requiring counties to provide for separation of powers between the executive and the legislative branches. (Under the county manager proposal, the manager, although called "mayor," would be appointed by and serve at the pleasure of the county council, and would have no veto power. Separation of powers between executive and and legislative branches would therefore not exist).

It is certainly a colorable argument, and I imagine it will be the one argued before the court if the county manager system is adopted. In my estimation it is impossible to predict a judicial outcome beyond saying that the case will wend from the Fifth Circuit through the ICA and finally to the state supreme court where it will be decided based upon the personal preferences of a majority of the justices there.

Beyond the legal analysis, the county attorney goes on to strenuously argue against the county manager proposal on policy grounds, proposing answers to a number of criticisms of the current mayoral system. I especially like the attorney's response to what really is the most clueless of the criticisms:

The current exectutive branch of government interferes with the council's ability to enact public policy laws and investigate subjects for which it is responsible.

To which the attorney correctly replies -

This criticism misses the whole point of the American form of representative democracy that utilizes a system of checks and balances.

Search legal opinions and journals on Google Scholar beta

...as of tonight!

Here's the official announcement on The Official Google Blog. Search by case name or topic here. It appears to include federal bankruptcy, district and appellate court cases, and state appellate decisions. I see that internal citations are hyperlinked. That's a nice feature. Unfortunately, many of the journal articles I was able to turn up reside behind pay walls. Of course, that's not Google's fault and at least the searcher has notice that the articles are there.

Reviving priveleges or immunities, maybe

Overturning Slaughterhouse would certainly change Con Law II for all time. Con Law II is the second of two constitutional law classes in the oddly universal law school curriculum, and Slaughterhouse was a consolidated case in which the Supreme Court in 1873 first interpreted the Fourteenth Amendment to the U.S. Constitution. Under the Fourteenth Amendment  -

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Of course, everyone recognizes the doctrines of due process and equal protection, both of which support vast jurisprudential edifices protecting the rights of individuals against encroachment by the states. But one can be forgiven if privileges or immunities doesn't ring a bell since the Supreme Court strangled that doctrine in its crib (in Constitutional scholar Reed Amar's memorable phrase) with its decision in the Slaughterhouse cases.

Pronouncing the privileges or immunities protection a nullity was incredibly short-sighted and another doctrine had to be cobbled together to take its place. Thus we have the oxymoronic "substantive due process" which extends due process protections beyond the right to, well, due process (notice, fair hearing, etc) and posits a number of substantive rights or liberties that cannot be infringed, no matter what the process or procedure.

The issue comes up because the petitioners in McDonald v. Chicago, a case currently before the Supreme Court, devoted 56 pages of their opening brief filed yesterday to arguing that the court should overturn Slaughterhouse and revive the privileges or immunities protections of the Fourteenth Amendment. McDonald seeks to overturn as unconstitutional Chicago's handgun ban and various firearm registration ordinances.

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 homerun 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.)

(Cross posted at Hawaii Appellate Law Blog)

Supreme Court declines to hear challenge to Redskins trademark

Actually, the Supreme Court declined to hear "[w]hether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act despite the plain meaning of the statutory language stating that such a petition may be filed “at any time.”"

A group of Native American individuals had sued contending that the Washington Redskin trademarks were registered contrary to the federal trademark act, which prohibits registration if a mark consists of or comprises “matter which may disparage . . . persons, living or dead, . . . or bring them into contempt, or disrepute .. . .” 15 U.S.C. § 1052(a).

The district court held, and the appellate court agreed, that the doctrine of laches precludes consideration of the case. "Laches" means an unreasonable delay or negligence in pursuing a right or claim in a way that prejudices the party against whom relief is sought (which can include economic prejudice arising from investment in and development of a trademark, and the continued commercial use and economic promotion of a mark over a prolonged period).

The AP provides a succinct procedural history of the case:

The high court on Monday turned away an appeal from Suzan Shown Harjo. That ends the latest round in the 17-year court battle between the Redskins and a group of American Indians who want them to change their name.

Harjo and her fellow plaintiffs have been working since 1992 to have the Redskins trademarks declared invalid. They initially won — the U.S. Patent and Trademark Office panel canceled the trademarks in 1999. But U.S. District Judge Colleen Kollar-Kotelly overturned the ruling in 2003 in part because the suit was filed decades after the first Redskins trademark was issued in 1967.

The U.S. Court of Appeals then sent the case back to Kollar-Kotelly, noting that the youngest of the plaintiffs was only 1 year old in 1967 and therefore could not have taken legal action at the time.

But Kollar-Kotelly rejected that argument, saying the youngest plaintiff turned 18 in 1984 and therefore "waited almost eight years" after coming of age to join the lawsuit. The Court of Appeals upheld that decision in May, and the Supreme Court now has refused to review that decision.

Turtle Talk has links to the cert petition, opposition and amicus briefs, and the decisions below. And here's SCOTUSblog's similar links.

Prof. Jon Osorio and his attorneys, Mililani Trask and Ke'eaumoku Ka'iama

...discussing the ceded lands case here on Big Island Video News.com

9th Circuit clarifies abuse of discretion standard

On appeal, issues decided by trial courts are accorded various levels of discretion. For instance, trial courts have a great deal of discretion when making findings of fact. Appellate courts are supposed to respect that discretion when reviewing the factual findings of trial courts and are to overturn factual findings only if the trial court abused its discretion in making the finding. There has long existed a tension among Supreme Court precedents about when an appellate court may determine that a trial court has abused its discretion.

On the one hand an appellate court may not simply substitute its view for that of the district court, but rather must give the district court’s findings deference, (see i.e. Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976) (per curiam). On the other, an appellate court may reverse a discretionary trial court factual finding if the court is “left with the definite and firm conviction that a mistake has been committed,” (United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

Noting this tension the Ninth Circuit brought to bare still another Supreme Court precedent, Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985), to fine tune what it means to be “left with the definite and firm conviction that a mistake has been committed.” Accordingly, the court's task is -

to determine whether the trial court’s application of the correct legal standard was (1) “illogical,” (2) “implausible,” or (3) without “support in inferences that may be drawn from the facts in the record.” Anderson, 470 U.S. at 577. If any of these three apply, only then are we able to have a “definite and firm conviction” that the district court reached a conclusion that was a “mistake” or was not among its “permissible” options, and thus that it abused its discretion by making a clearly erroneous finding of fact.

United States v. Hinkson, No. 05-30303 (9th Cir. Nov. 5, 2009).

"Whatever Happened to the Contract Clause?"

Via Legal History Blog, an interesting history of what was once "the most litigated provision in the Constitution and...the chief restriction on state authority" but which ultimately fell victim to New Deal constitutionalism.

Article I, section 10, clause 1 -

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Bruce Davidson

Today's New York Times (Which we buy for the book reviews, honest, nothing else) featured a piece on Bruce Davidson, a photographer I've admired for many years. So here's one of his photos I've always liked -

Un-slaughtering the Privileges or Immunities Clause

What a great title for a symposium:

"A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?"

The Privileges or Immunities Clause is part of the Fourteenth Amendment passed, of course, after the Civil War. It says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." While the Amendment's Due Process clause has led over time to the incorporation of certain guarantees in the Bill of Rights against state encroachment, the Privileges or Immunities clause was rendered a dead letter just a few years after its enactment by the Slaughter House Cases.

In dissent, Justice Field wrote:

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.

Back to the present, The Volokh Conspiracy recently pointed out:

...McDonald v. Chicago involves a constitutional challenge to the Chicago handgun ban, which raises the issue of whether the individual right to keep and bear arms, which was recognized by the Supreme Court in DC v. Heller also applies to the states. Somewhat amazingly, the Court announced that this was the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

This indicates that the meaning of the long-ignored Privileges or Immunities Clause is now in play, and that the Court wants to squarely address this constitutional question, as Justice Thomas has long been urging it to do. Rarely do constitutional law cases involve the isolated issue of the original meaning of the text. Heller is one such case; McDonald could be another. Is it really possible that the court will restore not one, but two clauses of the Lost Constitution?

An exciting moment for Constitution geeks.

Ironical post script: Re-reading, it occurs to me I didn't expound sufficiently. The really interesting aspect of this case, in my estimation, is that, ultimately, it potentially broadens the expansion of individual rights in a way that will be appreciated by social libertarians of a leftist bent - that is, it potentially reaches a lot of liberties not currently protected under constitutional law. But the argument is asserted by proponents of the Second Amendment right which is traditionally thought of as a right wing interest. And, the argument  rests on an originalist textual reading of the Constitution, which is also a traditionally conservative point of view, but which nevertheless potentially broadens the landscape of individual rights, which is traditionally a leftist interest.  As I say, an exciting moment fo Constitution geeks.

No furloughs for state judges

It would violate the state constitution. Paul Curtis has a related piece in the Garden Island this morning -

Article XVI; Section [3.5]. There shall be a commission on salaries as provided by law, which shall review and recommend salaries for the justices and judges of all state courts, members of the legislature, department heads or executive officers of the executive departments and the deputies or assistants to department heads of the executive departments as provided by law, excluding the University of Hawaii and the department of education....

Any salary established pursuant to this section shall not be decreased during a term of office, unless by general law applying to all salaried officers of the State.

Would you freak

...if you were an attorney and a deputy walked up and rummaged through your case file behind your back and took a document while you were at the podium addressing the court?



Here's a related article from Heat City ("Hard News in the Public Interest from Metro Phoenix")

A Maricopa County detention officer tried to explain Friday why he and a fellow sheriff's office employee swiped a document from a defense attorney's file in a bizarre scene that was caught on courtroom videotape.

New furlough lawsuit

This one based on a due process argument according to the Star-Bulletin -

The latest complaint contends that shortening the school year by 17 days without giving adequate notice and opportunity for public comment violated students' rights to due process of law.

"We have a constitutionally created educational system and a mandatory school year," said Carl Varady, one of the attorneys for the students, who were not named publicly. "Why is that different from any other state-created benefit like welfare or public health? The Supreme Court has recognized that you cannot take away health care and other social welfare benefits without due process. Why can you take away school?"

Another landmark in long-running Hawaiian Homelands case

The Advertiser -

The class-action lawsuit Kalima v. State of Hawaii was filed on behalf of more than 2,700 DHHL beneficiaries. It alleged that DHHL did not provide homes in a timely and prompt manner as required by the Admission Act.

The Star-Bulletin -

The decision yesterday came in a class action lawsuit filed in 1999 on behalf of about 2,700 native Hawaiians who claimed they were not promptly awarded homesteads between 1959 and 1988.

The beneficiaries filed claims under a 1991 law passed to compensate them for their losses resulting from the delays. But the state shut down the administrative process in 1999, prompting the lawsuit.

The case went up to the state Supreme Court before being sent back down to Circuit Court for trial

The Supreme Court decision, Kalima v. State, 137 P.3d 990 (Haw. 2006)(slip opinion here), contains a thorough history of the Hawaiian Homelands Trust and a lengthy history of the state's efforts to provide redress for breaches of the Home Lands Trust.

Plaintiff's attorney comments on Kaloko Dam settlement

Philip R. Brown -

The Kaloko Dam flood was a terrible tragedy, about which I previously posted in September of 2007. I am happy to report that we have reached a successful settlement, which will allow our clients to restore their idyllic property.

Mortgage ind. trade journal: HUD threatens FHA revocation against Hawaii-based reverse lender

"The Board was particularly concerned about one case in which the Company steered an 88-year-old borrower into purchasing an annuity which would not mature until she reached her 104th birthday."

Ceded Lands case last man standing dismissed

Today the Hawaii Supreme Court filed what should be the final order in the ceded lands case, OHA v. Housing and Community Development Corp of Hawaii. Recall that the state supreme court had held that the federal Apology Resolution gave rise to a fiduciary duty on the part of the state to preserve the ceded lands until "such time as the relinquished claims of native Hawaiians have been resolved." The case then went before the U.S. Supreme Court which held that, on the contrary, the Apology Resolution did not create a cloud over the state's title to the ceded lands.

The parties (that is to say, all but one of the plaintiffs) subsequently reached a settlement in the form of Act 176 requiring a 2/3 majority vote of the legislature and notice to OHA before any state agency may alienate ceded lands.

The state filed a motion to dismiss the lone remaining plaintiff, Professor Jonathan Osorio's appeal. Today the Hawaii Supreme Court held that Professor Osorio's claims are not ripe for adjudication because there has been no final action under Act 176 with regard to any ceded lands. The court remanded the case to the circuit court for entry of a judgment dismissing Professor Osorio's claims against the state without prejudice.

This would appear to leave the door open for Professor Osorio to bring a claim once there is state action under Act 176 to sell or otherwise transfer ceded lands.