Sapienza v. Hayashi, 6308

• Decision Date: 29 September 1976
• Docket Number: No. 6308,6308
• Citation: 57 Haw. 289,554 P.2d 1131
• Parties: Maurice SAPIENZA et al., Petitioners, v. Yoshimi HAYASHI, Judge, Circuit Court, First Circuit, State of Hawall, and Ronald Y. Amemiya, Attorney General, State of Hawaii, Respondents.
• Court: Hawaii Supreme Court

Page 1131

554 P.2d 1131

57 Haw. 289

Maurice SAPIENZA et al., Petitioners, v. Yoshimi HAYASHI, Judge, Circuit Court, First Circuit, State of Hawall, and Ronald Y. Amemiya, Attorney General, State of Hawaii, Respondents.

No. 6308.

Supreme Court of Hawai'i.

Sept. 29, 1976.

Syllabus by the Court

1. The attorney general had the requisite standing to move for the city prosecutor's disqualification in impending judicial proceedings, and the circuit court was empowered to hear and rule upon the motion.

2. Attorneys, including prosecutors, are officers of the court and their conduct in judicial proceedings is subject to its supervision.

3. In the exercise of its supervisory powers over grand jury proceedings, the circuit court may order the disqualification of an attorney attending the grand jury where the integrity of the grand jury process and the proper administration of justice require it.

4. Prohibition is a drastic and extraordinary remedy and may not be used as a substitute for appeal, but there are rare and exceptional situations where despite the availability of alternative remedies, the special and exigent circumstances of the particular case may move this court to issue its writ.

5. An order of disqualification which is tantamount to an injunction is overbroad and will be set aside, where it is capable of being construed to proscribe conduct which is otherwise proper.

6. Where the trial court disqualifies all assistant prosecuting attorneys simply because the prosecuting attorney is disqualified, the disqualification is overbroad.

7. Where a circuit court, having jurisdiction over the subject matter, has exceeded its authority, prohibition in a proper case is a available as a remedy.

8. Unless the Code's disciplinary rules require it, the mere appearance of impropriety will not always require the disqualification of an attorney, for counterbalancing it is the Code's own requirement that '(w)hile a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism.'

9. Canon 9 of the Code of Professional Responsibility was not intended to serve as a sweeping basis for the disqualification of attorneys who are otherwise free of potential conflicts of interest. Neither was it designed to provide a convenient refuge for the timid practitioner or to serve as an excuse for the public servant to avoid the performance of an unpleasant duty.

10. The supreme court, in the exercise of its original jurisdiction, will not issue its writ of prohibition against the attorney general except in aid of its appellate jurisdiction.

Randolph Slaton, pro se.

Maurice Sapienza, pro se.

Larry Zenker, Asst. Atty. Gen., Honolulu, for Ronald Y. Amemiya, respondent.

Michael Lilly, Deputy Atty. Gen., Honolulu, for Judge Yoshimi Hayashi, respondent.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

PER CURIAM.

This case is before us on a petition by the City Prosecutor of the City and County of Honolulu and his deputies, for a writ of prohibition directed against the Attorney General and the Honorable Yoshimi Hayashi, Judge of the Circuit Court of the First Circuit, seeking to enjoin them from enforcing the court's order, dated July 29, 1976, wherein the court, based upon an evidentiary hearing on a motion for the petitioners' disqualification, ruled that 'City Prosecutor Maurice Sapienza, or any deputy or any special deputy, or any assistant attorney, or any special attorney, or any other attorney, or special attorney, appointed by or through the City Prosecutor to act in his behalf, is disqualified from presenting the Kukui Plaza matter to the Grand Jury.' As the basis for its issuance, the court noted in its order that '(s) hould the City Prosecutor, or anyone appointed by or through his office, be allowed to take the Kukui Plaza investigation to the grand jury there would be created in the minds of the public an appearance of impropriety.'

The Attorney General had moved in the circuit court for an order disqualifying the petitioners from presenting evidence to the Oahu Grand Jury, in connection with the Kukui Housing project, which has been the subject of an ongoing City Council investigation, alleging conflict of interest. The motion apparently was triggered by the following sequence of events as represented to the circuit court by the Attorney General: 'On June 2, 1976, the Mayor of the City and County of Honolulu publicly announced that he had learned that a witness in the City Council's investigation of the Kukui Plaza project controversy had charged that he wrongfully received $200,000 'skim' money from the project. After categorically denying that he violated any law in connection with this project, he requested that City Prosecutor, Maurice Sapienza, present the entire Kukui Plaza controversy to the grand jury. On June 3, 1976, City Prosecutor Maurice Sapienza publicly stated that he would present the evidence concerning Kukui Plaza to the grand jury and that there is no conflict of interest problem even though he is an appointee of Mayor Fasi.'

In his response to the motion for disqualification, the City Prosecutor asserted that '(h)e has reason to believe that certain criminal activity may have taken place involving the development of the Kukui Plaza housing development;' that '(h)e intends to request that an Oahu Grand Jury conduct an investigation of criminal activity in connection with the housing development;' that '(s)hould the investigating Grand Jury determine that criminal activity occurred in the development of Kukui Plaza, he would seek an indictment or indictments from the Grand Jury for all crimes that the Grand Jury would believe to have been committed;' that '(t)he indictments would be sought against any person and every person involved in any criminal activity, regardless of that person's position in the City government or the community.' The City Prosecutor admitted at the hearing that he had no evidence whatsoever to present to the grand jury at that point:

THE COURT: . . . Mr. Sapienza, I would like to ask you: Wouldn't that be a conflict of interest if you have to investigate Kukui Plaza Project, and Mr. Chung was involved?

MR. SAPIENZA: Well, Your Honor, don't we have to find out first if he is involved? I don't know if he is involved.

THE COURT: Well, isn't that all the matter here we are talking about? You don't have any evidence at that point; isn't that right?

MR. SAPIENZA: I have no evidence at all.

THE COURT: That's right, so you have nothing to present to the Grand Jury at this time; isn't that right?

MR. SAPIENZA: Well, we have to ask the Grand Jury to call in witnesses and determine whether-

The attorney general had the requisite standing to move for the petitioners' disqualification, and the circuit judge was empowered to hear and rule upon the motion. See Pirillo v. Takiff, 341 A.2d 896 (Pa.1975); In re Gopman, 531 F.2d 262 (5th Cir. 1976). Attorneys, including prosecutors, are officers of the court, and their conduct in judicial proceedings are subject to its supervision. Hull v. Celanese Corporation, 513 F.2d 568 (2d Cir. 1975). In the exercise of its supervisory powers over grand jury proceedings, the circuit court may order the disqualification of attorneys attending the grand jury where the interity of the grand jury process and the proper administration of justice require it. Pirillo v. Takiff, supra.

The circuit judge issued its order, and we have been petitioned to enjoin its enforcement. Prohibition is a drastic and extraordinary remedy and may not be used as a substitute for appeal. State ex rel. McClung v. Fukushima, 53 Haw. 295, 492 P.2d 128 (1972). However, there are rare and exceptional situations where despite the availability of alternative remedies, the special and exigent circumstances of the particular case may move this court to issue its writ. Chung v. Ogata, 54 Haw. 146, 504 P.2d 868 (1972). We think this is such a case.

The circuit court's order was overbroad. To extend the order to its furthest limits, no criminal activity by anyone touching upon the 'Kukui Plaza matter' could be called to the attention of the grand jury by the city prosecutor or any of his deputies. No specific charges of criminal violation legitimately lodged by the police against parties, other than the Mayor, Mr. Harry C. C. Chung, or Mr. Hal Hansen, could be presented to the grand jury by any member of the city prosecutor's staff. In short, the order would effectively bar the presentation to the...