State v. Talo

• Decision Date: 24 May 2022
• Docket Number: CAAP-20-0000565
• Citation: 151 Hawai‘i 167,509 P.3d 1130 (Table)
• Parties: STATE of Hawai‘i, Plaintiff-Appellee, v. Logovii TALO, Defendant-Appellee, and Jason M. Kramberg, Real Party in Interest-Appellant
• Court: Hawaii Court of Appeals

151 Hawai‘i 167

509 P.3d 1130 (Table)

STATE of Hawai‘i, Plaintiff-Appellee,

v. Logovii TALO, Defendant-Appellee,andJason 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)

SUMMARY DISPOSITION ORDER

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 behavior toward the court. We conclude that the Circuit Court did not err in referencing the Guidelines in this manner.

Kramberg further argues that the Circuit Court abused its discretion because he did not act in bad faith. More specifically, Kramberg submits that he did not engage in "opportunistic and unprofessional argument" by bringing up Talo's health condition only after the Circuit Court began to sentence Talo to prison.

However, conduct that violates the HRPC may constitute bad faith and warrant the imposition of sanctions. See Kunimoto, 91 Hawai‘i at 392, 984 P.2d at 1218 (determining conduct that failed to comply with HRPC warranted sanctions). The Preamble of the HRPC, which was cited by the Circuit Court, includes, inter alia :

[5] ... A lawyer should demonstrate respect for the legal system and for those who serve it, including judges...

....

[9] In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest[.] ... These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.

HRPC Rule 3.1, which was also cited by the Circuit Court, provides:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

At a June 18, 2020 resentencing hearing, Kramberg interrupted the court in the middle of its ruling. Kramberg interrupted the court after the court explained that probation would not be "an adequate deterrent" and that the nature of the probation violation in combination with the underlying conviction favored a prison term. Kramberg then proceeded to argue that sentencing Talo to prison was tantamount to sentencing him to die; and when the court rejected his argument, Kramberg said that the court's actions were outrageous, reiterated that the court was sentencing the defendant to die, and persisted in arguing with the judge. As reflected in the transcript of the June 18, 2020 hearing, and as set forth in FOF 2:

THE COURT: ... So when I look at the underlying offense of a violent assault in the second degree, combined with the nature of this particular probation violation, the court's finding is that this particular weighing does militate in favor of a prison term.

....

So for all of these reasons, it is the judgment and sentence of this court that [Talo] be committed to the custody --

MR. KRAMBERG: Excuse me, Your Honor .

THE COURT: -- and care --

MR. KRAMBERG: Before you finish that sentence, I'm not sure if I placed on the record about Mr. Talo's medical condition in terms of he does suffer from gout, he is overweight, and he does have a pre -- and diabetes

.

So, essentially, by sentencing him to imprisonment with the corona virus, Mr. Talo is at very high risk of death if it is to enter our prison system. So I would ask the court to also consider that as a factor in whether or not Mr. Talo deserves to die for the alleged violation, which is not supported by any direct testimony.

THE COURT: You gotta stand when you talk, Mr. Kramberg. ²

And, Mr. Kramberg, the court's sentence is based on the court's considered -- you know, I take exception to you saying that I am sentencing him to die, which I am not.

MR. KRAMBERG: I respectfully disagree . The high possibility that people die in prison based on his health condition. So I would before -- I would ask that mittimus be delayed. We do...