State v. Talo, CAAP-20-0000565

CourtCourt of Appeals of Hawai'i
Citation151 Hawai‘i 167,509 P.3d 1130 (Table)
Docket NumberCAAP-20-0000565
Parties STATE of Hawai‘i, Plaintiff-Appellee, v. Logovii TALO, Defendant-Appellee, and Jason M. Kramberg, Real Party in Interest-Appellant
Decision Date24 May 2022

151 Hawai‘i 167
509 P.3d 1130 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,
Logovii TALO, Defendant-Appellee,
Jason M. Kramberg, Real Party in Interest-Appellant

NO. CAAP-20-0000565

Intermediate Court of Appeals of Hawai‘i.

May 24, 2022

On the briefs:

Jon N. Ikenaga, Deputy Public Defender, for Real Party In Interest-Appellant.

Patricia Ohara, Robyn B. Chun, Lori N. Tanigawa, Deputy Attorneys General, for The Honorable Karen T. Nakasone

(By: Leonard, Presiding J., Hiraoka, J.; and Circuit Court Judge Ashford, in place of Ginoza, C.J., and Wadsworth, Nakasone and McCullen, JJ., all recused)


Real Party In Interest-Appellant Deputy Public Defender Jason M. Kramberg (Kramberg ) appeals from the August 14, 2020 Findings of Fact [(FOFs )], Conclusions of Law [(COLs )], and Order of Sanction Against Jason Kramberg, Esq. (Sanction Order ) entered by the Circuit Court of the First Circuit (Circuit Court ).1

Kramberg raises a single point of error on appeal, contending that the Circuit Court abused its discretion in imposing sanctions against Kramberg; Kramberg challenges FOFs 2-10 as clearly erroneous and COLs 2-4 as wrong.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Kramberg's point of error as follows:

Kramberg argues that the Circuit Court abused its discretion in invoking its inherent powers under Hawaii Revised Statutes (HRS ) § 603-21.9 (2016) to impose sanctions against Kramberg where he did not act in "bad faith."

Pursuant to HRS § 603-21.9, the circuit court has the power to, inter alia :

(6) To make and award such judgments, decrees, orders, and mandates, issue such executions and other processes, and do such other acts and take such other steps as may be necessary to carry into full effect the powers which are or shall be given to them by law or for the promotion of justice in matters pending before them.

HRS § 603-21.9 "is a legislative restatement of the inherent powers doctrine." Kaina v. Gellman, 119 Hawai‘i 324, 331, 197 P.3d 776, 783 (App. 2008) (citations omitted). Courts have "inherent power to curb abuses and promote a fair process." Enos v. Pac. Transfer & Warehouse, Inc., 79 Hawai‘i 452, 458, 903 P.2d 1273, 1279 (1995) (citation omitted). However, "a court's inherent power, [ ] should be exercised with restraint and discretion." Id. (citation omitted).

A circuit court invoking its powers to sanction an attorney must: (1) identify the appropriate sanctioning authority; and (2) set forth specific findings of perceived misconduct, i.e., bad faith, with reasonable specificity. Id. 79 Hawai‘i at 459, 903 P.2d at 1280 ("[A]n order imposing sanctions should set forth findings that describe, with reasonable specificity, the perceived misconduct (such as harassment or bad faith conduct), as well as the appropriate sanctioning authority[.]"); see also Bank of Haw. v. Kunimoto, 91 Hawai‘i 397, 389, 984 P.2d 1198, 1215 (1999) ("It is well settled that a court may not invoke its inherent powers to sanction an attorney without a specific finding of bad faith."). The record must support a finding of bad faith by clear and convincing evidence. Erum v. Llego, 147 Hawai‘i 368, 393, 465 P.3d 815, 840 (2020) ; Kunimoto, 91 Hawai‘i at 390, 984 P.2d at 1216 (determining circuit court's bad faith findings were supported by clear and convincing evidence in the record).

The sanctioning order does not need to expressly use the words "bad faith," but "the court must make findings tantamount to a specific finding of bad faith, i.e. , findings that are sufficient to enable the appellate court to infer a specific finding of bad faith by the circuit court." Sandomire v. Brown, 144 Hawai‘i 314, 331, 439 P.3d 266, 283 (App. 2019) (internal quotation marks and brackets omitted).

In analyzing the imposition of sanctions, the supreme court reasoned that:

[s]anctions are not to be assessed without full and fair consideration by the court. They often entail a fine which may have more than a token effect upon an attorney's resources. More importantly, they act as a symbolic statement about the quality and integrity of an attorney's work - a statement which may have tangible effect upon the attorney's career.

Enos, 79 Hawai‘i at 458, 903 P.2d at 1279 (citation omitted). It has been noted, however:

These concerns are balanced with our observation that

lawyers who know how to think but have not learned how to behave are a menace and a liability to the administration of justice. The necessity for civility is relevant to lawyers because they are living exemplars - and thus teachers - every day in every case and in every court; and their worst conduct will be emulated more readily than their best.

Id. (citation, brackets and ellipses omitted).

Kramberg first argues that the Circuit Court erred in relying on the Guidelines of Professional Courtesy and Civility for Hawai‘i Lawyers (Guidelines ) as a basis for imposing sanctions although they are not mandatory rules of professional conduct and are only offered as guidance. However, Kramberg cites no legal authority prohibiting a court from citing the Guidelines to support a particular proposition. We note that the supreme court has previously cited to the Guidelines to support propositions regarding sanctions. Erum, 147 Hawai‘i at 393 n.46, 465 P.3d at 840 n.46. Although the Guidelines provide that they should not be used as an independent basis for disciplinary charges or claims of professional negligence, the Guidelines also expressly provide that a court may reference them. See Guidelines Preamble (2018).

Here, in COL 3, after citing the Hawai‘i Rules of Professional Conduct (HRPC ), the Circuit Court referenced the Guidelines using a "see also" reference, in support of its conclusion that Kramberg's unprofessional conduct failed to comport with ethical standards for arguments to a tribunal, and...

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