State v. Tui, SCWC–15–0000387

• Citation: 138 Hawai'i 462,382 P.3d 274
• Decision Date: 10 October 2016
• Docket Number: SCWC–15–0000387
• Parties: State of Hawai‘i, Respondent/Plaintiff–Appellee, v. Joseph Tui, Jr., Respondent/Defendant–Appellee, Director of Health, Department of Health, State of Hawai‘i, Petitioner/Real Party–in–Interest– Respondent/Appellant.
• Court: Supreme Court of Hawai'i

138 Hawai'i 462

382 P.3d 274

State of Hawai‘i, Respondent/Plaintiff–Appellee,

v.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

Supreme Court of Hawai'i.

OCTOBER 10, 2016

Debbie L. Tanakaya for petitioner

Nelson W.S. Goo for respondent Tui, Jr.

Scott M. Spallina for respondent State

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 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 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, 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 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, but ordered that Tui be re-examined. The circuit court ordered that Tui remain at the Hospital pending a hearing on that reexamination. 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 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 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 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:

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

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