State v. Tui. , 138 Haw. 462 ( 2016 )

*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-15-0000387
10-OCT-2016
07:58 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---oOo---
________________________________________________________________
STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,
vs.
JOSEPH TUI, JR., Respondent/Defendant-Appellee,
DIRECTOR OF HEALTH, DEPARTMENT OF HEALTH, STATE OF HAWAII,
Petitioner/Real Party-in–Interest-Respondent/Appellant.
________________________________________________________________
SCWC-15-0000387
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000387; CR. NOS. 13-1-0371 & 13-1-0556)
OCTOBER 10, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
CIRCUIT JUDGE AYABE IN PLACE OF WILSON, J., RECUSED
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case arises from a dispute regarding whether, under
Hawaii Revised Statutes (“HRS”) chapter 704,1 custody of a
1
HRS Chapter 704 is titled “Penal Responsibility and Fitness to
Proceed.”
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
defendant deemed unfit to proceed due to mental disease or
disorder2 can be transferred from the Director of Health
(“Director”) to the Department of Public Safety (“DPS”) before a
judicial determination that the defendant has regained fitness.
The Circuit Court of the First Circuit (“circuit court”)3
answered in the negative, and the Director appealed. The day
after the Director’s appeal, the circuit court determined that
the defendant, Joseph Tui, Jr. (“Tui”), was fit to proceed, and
transferred his custody to the DPS.
The Intermediate Court of Appeals (“ICA”) dismissed the
appeal as moot, holding that it lacked appellate jurisdiction
because custody of Tui had been already been transferred from
the Director to the DPS. According to the ICA, the “capable of
repetition, yet evading review” exception to the mootness
doctrine “d[id] not appear to apply” because the “Director ha[d]
not shown that review of [the] adverse trial court decisions
2
HRS § 704-403 (2014), titled “Physical or mental disease,
disorder, or defect excluding fitness to proceed,” provides:
No person who as a result of a physical or mental disease,
disorder, or defect lacks capacity to understand the
proceedings against the person or to assist in the person’s
own defense shall be tried, convicted, or sentenced for the
commission of an offense so long as such incapacity
endures.
This case concerns issues of whether Tui was unfit to proceed due to mental
disease or disorder. All references in this opinion to “fitness,”
“unfitness,” “fitness to proceed,” and “unfitness to proceed” relate only to
issues of fitness or unfitness due to mental disease or disorder, and not to
any other basis on which a defendant might be found unfit to proceed.
3
The Honorable Richard K. Perkins presided.
2
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
could not be obtained through other means, such as a petition
for writ of mandamus or prohibition.”
Thus, this case presents the procedural question of whether
the ICA erred in not considering the “capable of repetition, yet
evading review” exception to the mootness doctrine on this
basis. We hold that because there is no requirement that “other
means, such as a petition for writ of mandamus or prohibition”
be pursued before an appellate court can consider whether the
“capable of repetition, yet evading review” exception to the
mootness doctrine applies, the ICA erred in not considering the
exception. We then consider whether the exception applies, and
hold that it does. As the ICA therefore erred in dismissing the
appeal, we vacate the ICA’s November 9, 2015 “Order Dismissing
Appeal For Lack Of Appellate Jurisdiction” and remand the case
to the ICA to address the remaining issues on appeal.
II. Background
A. Circuit Court Proceedings
Tui was charged with murdering his cell-mate while
incarcerated at Oahu Correctional Community Center (“OCCC”). He
was later also charged with assaulting a nurse during a prior
hospitalization at the Hawaii State Hospital (“Hospital,” “State
Hospital,” or “HSH”). On January 14, 2015, following a hearing,
3
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
Tui was found unfit to proceed pursuant to HRS § 704-404 (2014).4
The proceedings against him were suspended until further order
of the court, and Tui was committed to the custody of the
Director pursuant to HRS § 704-406 (2014) “to be placed at the
[] Hospital or an appropriate institution for detention, care,
and treatment for so long as such unfitness shall endure.”5
4
As it stated at the relevant time, HRS § 704-404, titled
“Examination of defendant with respect to physical or mental disease,
disorder, or defect,” provides in relevant part as follows:
(1) Whenever the defendant has filed a notice of
intention to rely on the defense . . . or there is reason
to doubt the defendant’s fitness to proceed, . . . the
court may immediately suspend all further proceedings in
the prosecution. . . .
(2) Upon suspension of further proceedings in the
prosecution, the court shall appoint three qualified
examiners in felony cases . . . to examine and report upon
the physical and mental condition of the defendant. . . .
The examination may be conducted on an out-patient basis
or, in the court’s discretion, when necessary the court may
order the defendant to be committed to a hospital or other
suitable facility for the purpose of the examination[.]
5
HRS § 704-406, titled “Effect of finding of unfitness to
proceed,” provides in part as follows:
(1) If the court determines that the defendant lacks
fitness to proceed, the proceeding against the defendant
shall be suspended, . . . and the court shall commit the
defendant to the custody of the director of health to be
placed in an appropriate institution for detention, care,
and treatment . . . .
. . . .
(3) When the court, on its own motion or upon the
application of the director of health, the prosecuting
attorney, or the defendant, determines, after a hearing if
a hearing is requested, that the defendant has regained
fitness to proceed, the penal proceeding shall be
resumed. . . .
(4) . . . Within a reasonable time following []
commitment under subsection (1), the director of health
shall report to the court on whether the defendant presents
(continued . . .)
4
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
According to the Director, the Hospital was the only such
“appropriate institution.”
Twelve days later, on January 26, 2015, the Director filed
a motion for an order finding that Tui had regained fitness.
The Director also moved for a transfer of Tui’s custody from the
State Hospital to the DPS. In the motion, the Director asserted
there was no clinical indication for Tui to remain in an
inpatient hospital unit and that prolonging Tui’s stay was
endangering patients, staff, himself, and the community at
large. In the alternative, the Director requested that another
three-panel examination be ordered. The motion was supported by
a letter to the court, dated January 23, 2015, from Dr. Allison
Garrett (“Dr. Garrett”), Tui’s attending psychiatrist at the
State Hospital. Dr. Garrett’s opinion was that Tui was fit,
posed a danger to others, and had a high flight risk.6
At a hearing on February 5, 2015, the circuit court orally
denied the State’s request for a fitness finding and transfer,
(. . . continued)
a substantial likelihood of becoming fit to proceed in the
future. The court, in addition, may appoint a panel of
three qualified examiners in felony cases . . . .
6
The letter from Dr. Garrett also detailed Tui’s cooperative
condition upon admission at HSH, the opinion of the mental health staff at
OCCC that Tui’s schizoaffective disorder was in remission, and that Tui was
capable of planning and arranging for contraband to be brought in to
facilitate an escape. Apparently, the night he was admitted to the Hospital,
despite being disallowed from having visitors, Tui’s sister, at his request,
attempted to bring him a duffle bag of clothes that contained a concealed
knife.
5
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
but ordered that Tui be re-examined. The circuit court ordered
that Tui remain at the Hospital pending a hearing on that re-
examination. The circuit court’s order appointing three
examiners to review Tui’s fitness to proceed and penal
responsibility was entered on March 5, 2015.7
On March 18, 2015, the Director filed a second motion for
transfer of Tui’s custody to the DPS. The motion was supported
by letter to the court dated March 17, 2015, from William J.
May, the Hospital Administrator, indicating that a special
Administrative Safety Plan had been implemented for Tui due to
his violent behaviors and other events that occurred within
hours of his admission to the State Hospital.8
The hearing on the Director’s second motion to transfer Tui
was held on March 30, 2015. The Director argued that it was not
7
Parts of HRS chapter 704 have been amended by Act 198 of 2016
(see Act 198 of 2016, S.B. 2888, C.D. 1, §§ 3-4), effective July 1, 2016
(“Act 198”), and Act 231 of 2016 (see Act 231 of 2016, H.B. 2561, C.D. 1, §§
4-6), effective July 11, 2016 (“Act 231”). In broad summary, Act 198 removes
the provisions in HRS § 704-404 relating to penal responsibility examinations
and inserts them in a new section, see Act 198, § 2, and retains provisions
relating to fitness to proceed examinations, at issue here, in HRS § 704-404.
Act 198 requires that, in felony cases, fitness to proceed examinations and
penal responsibility examinations be conducted separately, unless the court
orders otherwise. Act 231 is the comprehensive Penal Code revision bill.
With respect to HRS §§ 704-404 and -406, in broad summary, Act 231
temporarily eliminates (until July 1, 2018) the requirement that the Director
of Health’s designee to conduct fitness and penal responsibility examinations
be “from within the Department of Health.” Act 198 retains that limitation.
8
Regarding Tui’s psychiatric stability, the March 17, 2015 letter
provided updates from Tui’s treatment team at the Hospital purporting to
demonstrate his continued mental stability, including that his bipolar
disorder was in remission and that Tui was on a stabilized medication
regimen, and also included the results of a forensic evaluation.
6
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
necessary for Tui to remain at the Hospital. She asserted that
although the circuit court had earlier found Tui unfit, Tui
could be still be transferred to OCCC because his fitness status
was uncertain in light of the court’s ordering of a three-panel
re-examination. The Director argued that the authority to order
a three-panel re-examination also comes from HRS § 704-404 and
that under that statute, a patient for whom a fitness
examination has been ordered does not need to be at the
Hospital, but can be held at OCCC.
Tui argued that the court should await the outcome of the
three-panel re-examination.
The deputy prosecuting attorney then noted that it was the
attorney general, representing the Director, that was filing the
motion, and that the State of Hawaii as prosecutor had “not seen
this avenue being taken to get somebody that’s still legally
unfit back into the general population.” The prosecutor further
stated that what the Director was requesting was “fraught with
risks,” and noted “that’s why the State or the prosecutor’s
office is not joining in on this motion.”
The circuit court then denied the motion, noting that Tui
had already been found unfit and that the re-examination was
therefore no longer an initial examination of fitness pursuant
to HRS § 704-404. The court ruled that pending a ruling that he
had regained fitness, as an unfit person, Tui could not be held
7
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
at OCCC. The circuit court scheduled a hearing on Tui’s three-
panel re-examination report for May 7, 2015.
The order on the March 30, 2015 hearing did not enter until
May 5, 2015. The next day, which was the day before the hearing
on the re-examination, the Director appealed the circuit court’s
order denying Tui’s transfer. After the May 7, 2015 hearing to
review the report of the three examiners who had re-examined
Tui’s fitness to proceed, the circuit court found Tui fit to
proceed and committed him to the custody of the DPS.
B. Appeal to the ICA
In her Opening Brief to the ICA, the Director repeated the
arguments she had made to the circuit court. She also argued
that although Tui’s custody had already been transferred to the
DPS, the ICA has jurisdiction over the appeal because the
custody status of a defendant pending re-examination of fitness
falls under the “capable of repetition, yet evading review”
exception to the mootness doctrine.9
Tui agreed with the Director’s assertion that the ICA has
jurisdiction over the appeal based on the “capable of
repetition, yet evading review exception,” and also reiterated
his argument to the circuit court that a fitness finding was
9
The Director’s additional arguments as to why the ICA has
jurisdiction are not included as they are not necessary to our opinion.
8
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
necessary before a defendant’s custody can be transferred to the
DPS.
On November 9, 2015, the ICA issued its “Order Dismissing
Appeal For Lack Of Appellate Jurisdiction (“Order Dismissing
Appeal).” The Order Dismissing Appeal provides, in relevant
part, as follows:
Where a subsequent hearing and determination of
fitness resulted in the circuit court ordering transfer of
Tui to the Director of Public Safety on May 7, 2015–two
days after the 5/5/15 Order Denying Motion for Transfer in
Cr. 13–1–0375/13–1–0556 from which Director appeals-the
remedy of transfer has already been accomplished, and the
ICA cannot grant said relief. Kaho‘ohanohano v. State, 114
Hawai‘i 302, 332, 162 P.3d 696, 726 (2007) (“a case is moot
if the reviewing court can no longer grant effective
relief”); State v. Fukusaku, 85 Hawai‘i 462, 475, 946 P.2d
32, 45 (1997) (“[a] case is moot where the question to be
determined is abstract and does not rest on existing facts
or rights”).
The ICA has no jurisdiction to decide moot cases
where its judgment “could not be carried into effect, or
that relief was impossible to grant.” Lathrop v. Sakatani,
111 Hawai‘i 307, 312, 141 P.3d 480, 485 (2006), quoting TSA
Int’l Ltd. v. Shimizu Corp., 92 Hawai‘i 243, 265, 990 P.2d
713, 735 (1999) and Wong v. Bd. of Regents. Univ. of
Hawai‘i, 62 Haw. 391, 394–95, 616 P.2d 201, 204 (1980). The
mootness doctrine reflects that the conditions for
justiciability—adverse interest and effective remedy—must
remain alive throughout the litigation. Wong, 62 Haw. at
394, 616 P.2d at 203–04.
The “capable of repetition yet, evading review”
exception to mootness doctrine cited by the Director does
not appear to apply. Hamilton Ex Rel Lethem v. Lethem, 119
Hawai‘i 1, 5–10, 193 P.3d 839, 843–48 (2008). The Director
has not shown that review of adverse trial court decisions
could not be obtained through other means, such as a
petition for writ of mandamus or prohibition.
C. Application for Writ of Certiorari
The Director presents the following questions on
certiorari:
9
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
1. Did the Intermediate Court of Appeals (ICA) gravely err
when it dismissed the Director of Health’s (Director)
appeal for failure to address the adverse trial court
decision “through other means, such as a petition for
writ of mandamus or prohibition” prior to the Director’s
filing of an appeal?
2. Did the ICA gravely err when it failed to apply the
“capable of repetition, yet evading review” exception to
the mootness doctrine? Although this Defendant was
transferred back to the custody of the Director of
Public Safety (PSD), the custody status of a defendant
awaiting a panel re-examination, is implicated in every
regained fitness to proceed matter.
III. Standard of Review
Appellate courts review issues of mootness de novo. Kansas
Judicial Review v. Stout, 519 F.3d 1107, 1114 (10th Cir. 2008);
Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th
Cir. 2004); Ammex, Inc. v. Cox, 351 F.3d 697, 704 (6th Cr.
2003).
IV. Discussion
A. There is no requirement that other means, such as a
petition for writ of mandamus or prohibition, be pursued
before an appellate court can consider whether the “capable
of repetition, yet evading review” exception to the
mootness doctrine applies.
The ICA dismissed the appeal as moot, holding that it
lacked appellate jurisdiction because custody of Tui had been
already been transferred. In doing so, it stated that the
“capable of repetition, yet evading review” exception to the
mootness doctrine did not appear to apply because the Director
had not shown that review could not have been obtained through
“other means, such as a petition for writ of mandamus or
10
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
prohibition.” The ICA did not cite to any legal authority for
the latter statement, and we could find none.
With respect to writs of mandamus or prohibition, this
court has stated:
A writ of mandamus and/or prohibition is an extraordinary
remedy that will not issue unless the petitioner
demonstrates a clear and indisputable right to the relief
requested and a lack of other means to redress adequately
the alleged wrong or to obtain the requested action. Such
writs are not meant 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.
Where a trial court has discretion to act, mandamus will
not lie to interfere with or control the exercise of that
discretion, even when the judge has acted erroneously,
unless the judge has exceeded his or her jurisdiction, has
committed a flagrant and manifest abuse of discretion, or
has refused to act on a subject properly before the court
under circumstances in which it has a legal duty to act.
Kema v. Gaddis, 91 Hawai‘i 200, 204-05, 982 P.2d 334, 338-39
(1999) (internal citation omitted). Thus, these extraordinary
writs are not available if an issue can be adequately redressed
through a typical appeal.
In comparison, there is no requirement that an appellant
pursue relief through other means, such as through a petition
for writ of mandamus or prohibition, in order to have an
appellate court address whether the “capable of repetition yet
evading review” exception to the mootness doctrine applies to an
issue on appeal. In other words, although an extraordinary writ
cannot be obtained if adequate relief is available through an
ordinary appeal, the converse does not hold true; an appellant
is not required to show the unavailability of the extraordinary
11
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
writ process in order to obtain appellate relief. Moreover, as
also argued by the Director, extraordinary writs are only
available where there is a “clear and indisputable” legal right
to relief. The circuit court ruled that she had no right to the
relief she requested. Therefore, under the circumstances of
this case, she had no “clear and indisputable” legal right to
relief. Thus, the ICA should have addressed whether the
“capable of repetition, yet evading review” exception to the
mootness doctrine applies in this case. We therefore address it
now.
B. The “capable of repetition yet evading review” exception to
the mootness doctrine applies.
The Director raises various arguments for applicability of
the “capable of repetition, yet evading review” exception to the
mootness doctrine. She asserts that it is the practice of the
trial courts to order re-examinations to ascertain whether a
defendant has regained fitness to proceed, but there is no
explicit statute regarding the procedural process in determining
regained fitness to proceed. She states that she “will remain
vigorous in requests to transfer defendants she believes are no
longer in need of in-patient care and treatment back to the
custody of the [DPS], while awaiting panel re-examinations”
given her position that trial courts have discretion to order
transfer of a defendant before a court confirms regained
12
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
fitness. She further asserts that the issue of “the pre-trial
custody of an alleged defendant affects the public interest,
will arise in the future, and will almost always become moot
before a needed authoritative determination by an appellate
court can be made.” As to the last point, the Director also
argues that “a real question of law remains unsettled” because
“the interpretation and application of HRS chapter 704 affects
the proceedings of all criminal cases (in which mental
competency is at issue)[.]” The Director therefore requests
that the ICA’s dismissal order be vacated and this case remanded
to the ICA for consideration of the points of error raised.
“The mootness doctrine is said to encompass the
circumstances that destroy the justiciability of a suit
previously suitable for determination.” Wong, 62 Haw. at 394,
616 P.2d at 203. Thus, “[a] case is moot if the reviewing court
can no longer grant effective relief.” Kaho‘ohanohano, 114
Hawai‘i at 332, 162 P.3d at 726 (brackets in original) (citations
omitted). Nevertheless, this court has “repeatedly recognized
an exception to the mootness doctrine in cases involving
questions that affect the public interest and are ‘capable of
repetition yet evading review.’” Okada Trucking Co., Ltd. v.
Bd. of Water Supply, 99 Hawai‘i 191, 196, 53 P.3d 799, 804 (2002)
(citations omitted). Although the Director asserts that “the
pre-trial custody of an alleged defendant affects the public
13
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
interest,” she does so in the context of arguing applicability
of the “capable of repetition, yet evading review” exception.
We note that the public interest exception and the “capable of
repetition, yet evading review” exception are two separate and
distinct exceptions. See, e.g., Kaho‘ohanohano, 114 Hawai‘i at
333 n.23, 162 P.3d at 727 n.23; Lethem, 119 Hawai‘i at 5, 193
P.3d at 843 (“[T]his court has explicitly recognized two
exceptions to the mootness doctrine: (1) the ‘capable of
repetition, yet evading review’ exception; and (2) the public
interest exception.” (bracketed text omitted)). With regard to
the exception for matters capable of repetition, yet evading
review, this court has stated:
The phrase, “capable of repetition, yet evading review,”
means that “a court will not dismiss a case on the grounds
of mootness where a challenged governmental action would
evade full review because the passage of time would prevent
any single plaintiff from remaining subject to the
restriction complained of for the period necessary to
complete the lawsuit.”
Id. (internal citation omitted).
The instant case falls within this exception to the
mootness doctrine. The issue of whether custody of a defendant
previously found unfit can be transferred from the Director to
the DPS is an issue likely to evade review. The facts of this
case amply demonstrate this point. The issue is likely to arise
again given the Director’s assertion that she “will remain
vigorous in requests to transfer defendants she believes are no
14
*** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***
longer in need of in-patient care and treatment back to the
custody of the [DPS], while awaiting panel re-examinations.”
The issue is especially likely to evade appellate review because
if the Director is correct in her belief that a defendant has
regained fitness, by the time an appellate court reviews the re-
examination report, custody of the defendant will already have
been transferred to the DPS, which is what happened in this
case.
Therefore, the ICA erred in dismissing the Director’s
appeal based on the mootness doctrine.
V. Conclusion
Accordingly, we vacate the ICA’s Order Dismissing Appeal
and remand this case to the ICA to address the remaining issues
on appeal.
Debbie L. Tanakaya /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Nelson W.S. Goo
for respondent Tui, Jr. /s/ Sabrina S. McKenna
Scott M. Spallina /s/ Richard W. Pollack
for respondent State
/s/ Bert I. Ayabe
15