HOUSE OF REPRESENTATIVES

H.B. NO.

2548

THIRTIETH LEGISLATURE, 2020

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO COURTs OF APPEAL.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. A basic philosophy and practice in civil and criminal law is that parties should not be the victim of unfair surprise. Relevant evidence and legal theories must be disclosed throughout the course of litigation. Attorneys are subject to penalties when they thwart proper disclosure.

Appellate courts are not above the law. When an appellate court affirms, modifies, reverses, or vacates a judgment or order on factual or legal grounds that have not been litigated by the parties, the appellate court violates due process. Appellate courts should, at a minimum, afford the parties an opportunity to address new factual or legal contentions that the appellate court wishes to unilaterally insert into the proceeding.

The United States Supreme Court has held that sua sponte decisions reached without full briefing or argument have less precedential value and should be given less deference. For example, the Court has recognized that it has been "less constrained to follow precedent where, as here, the opinion was rendered without full briefing and argument." Hohn v. United States, 524 U.S. 236, 251 (1998).

The Court has also stated that "somewhat less deference [is owed] to a decision that was rendered without benefit of a full airing of all the relevant considerations. That is the premise of the canon of interpretation that language in a decision not necessary to the holding may be accorded less weight in subsequent cases." Monell v. Dep't of Social Servs., 436 U.S. 658, 709 n. 6 (1978) (Powell, J concurring).

Furthermore, "[s]ound judicial decisionmaking requires both a vigorous prosecution and a vigorous defense of the issues in dispute, and a constitutional rule announced sua sponte is entitled to less deference than one addressed on full briefing and argument." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 572 (1993) (Souter, J concurring) (internal citations and quotations omitted). Additionally, the Court has stated that "a rule of law unnecessary to the outcome of the case, especially one not put into play by the parties, approaches without more the sort of dicta ... which may be followed if sufficiently persuasive but are not controlling." Id. at 572-573 (internal citations and quotations omitted).

By making sua sponte decisions, an appellate court in effect substitutes itself as a party to the proceeding by raising new factual or legal theories. It does not allow the parties to litigate their own cases. Due process is especially violated when an appellate court makes a sua sponte decision that alters the remedy sought by the parties.

For example, in Cox v. Cox, 138 Hawaii 476 (2016), a majority of the Hawaii supreme court sua sponte invalidated a family court rule to deny the prevailing party an award of attorneys' fees and costs. No one in the litigation requested that the rule be invalidated. Nor did the supreme court provide the parties with an opportunity to address the issue.

Again, in State v. Chang, SCWC-17-0000674, 2019 WL 2715512 (Haw. June 28, 2019) a majority of the Hawaii supreme court vacated a conviction when the court unilaterally held that a motion to suppress may not be consolidated with a trial even when the parties consent to such an action. In making its decision, the majority overruled forty year old precedent. At no time did the majority afford the parties an opportunity to address the issue.

There are potential remedies that may prevent rash decisions. A party may be permitted to appeal the sua sponte decision to another court or an aggrieved party may be permitted to seek a recovery for any damages it may have incurred as a result of the decision.

The legislature finds that the better course of action is to simply prohibit an appellate court from rendering sua sponte decisions unless the parties have been heard. An appellate court must require supplemental briefing and hold oral argument. This alternative will ensure due process and permit the parties, rather than the appellate court, to litigate their own case.

The purpose of this Act is to prohibit the courts of appeal from affirming, modifying, reversing, or vacating a matter on grounds other than those raised by the parties to the proceeding, unless the parties are provided the opportunity to brief the court and present oral argument on the issue.

SECTION 2. Chapter 602, Hawaii Revised Statutes, is amended by:

1. Adding a new section to part I to be appropriately designated and to read as follows:

"602-   Supreme court; sua sponte decisions. The supreme court, when acting on a matter on appeal, shall not affirm, modify, reverse, or vacate a matter on grounds other than those raised by the parties to the proceeding, unless the parties are provided the opportunity to brief the court and present oral argument on the matter."

2. Adding a new section to part II to be appropriately designated and to read as follows:

"602-   Intermediate appellate court; sua sponte decisions. The intermediate appellate court shall not affirm, modify, reverse, or vacate a matter on grounds other than those raised by the parties to the proceeding, unless the parties are provided the opportunity to brief the court and present oral argument on the matter."

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Courts of Appeal; Sua Sponte Decisions

 

Description:

Prohibits courts of appeal from affirming, modifying, reversing, or vacating a matter on grounds other than those raised by the parties to the proceeding, unless the parties are provided the opportunity to brief the court and present oral argument on the matter.

 

 

 

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