The esteemed panel.
Just a reminder to join us at the Bar Convention on September 21 – we have a great program lined up, including our distinguished appellate panel from 11:00 to 11:45 comprised of Chief Justice Recktenwald, Justice Acoba, Chief Judge Nakamura, Judge Leonard, and Solicitor General Girard Lau!
Recognizing that Amar’s textualism makes him a rarity among progressive law profs, Barnett notes that Amar nevertheless holds out that constitutional text may properly give way to contrary precedent when public opinion strongly sides with the precedent, and ultimately concludes that Amar’s argument for an ‘unwritten Constitution’ suffers the same fatal flaw as any other appeal to ‘living constitutionalism’
Despite Mr. Amar’s best attempts to convince us otherwise, the danger of the unwritten Constitution remains. The label elevates non-constitutional authorities to a stature equal to, or even greater than, that of the written Constitution. Where Mr. Amar cannot make the written Constitution say what he wants, he can simply appeal to the unwritten Constitution to say the rest. And, judging from this book, the unwritten Constitution just happens to agree with everything Akhil Reed Amar believes is right and good.
On its face, Amar’s statement that ”An erroneous precedent that improperly deviates from the written Constitution may in some circumstances stand if the precedent is later championed not merely by the court, but also by the people” denies an important role of the Constitution in protecting our rights from the vicissitudes of popular public opinion.
Last week the Hawaii Supreme Court heard arguments in State v. Rodrigues, SCWC-30692 – a case involving the inevitable discovery doctrine. The Circuit Court of the Fifth Circuit had ruled that under Hawaii’s heightened standard (compared to the federal doctrine’s preponderance standard), the state failed to show by clear and convincing evidence that the suspect could not have gotten to and discarded a small baggy of drugs illegally recovered in a search incident to arrest.
As arguments developed, it became clear that the court’s main concern was that the inevitable discovery doctrine tends to defeat any protections against illegal searches incident to arrest where the state can simply show that the evidence would have been discovered anyway at the jailhouse in the thorough custodial searches that are routine when a suspect is brought into the facility.
The court appeared receptive to the argument that the circuit court’s rule requires too much when it demands clear and convincing evidence that, had the contraband not been found, the suspect could not have discarded it unnoticed on the way to the jail. However, Justices Nakayama, McKenna, and Recktenwald expressed doubts for the reason stated above that the inevitable discovery should be assumed as a matter of course.
Justice Nakayama prodded counsel on both sides about a bad faith exclusion that would negate inevitable discovery in the case of police bad faith in the prior illegal search.
Notwithstanding the “notwithstanding any other law to the contrary” language of HRS §712-1240.8, the methamphetamine trafficking in the 2d degree sentencing statute (mandating sentencing for those convicted of that crime), the circuit court of the First Circuit was moved to instead sentence a 20 year old offender under the less harsh terms of HRS § 706-667, the young adult defendant’s sentencing statute.
Vacating and remanding the sentence, the ICA said in State v. Casugay-Badiang, CAAP-11-802
HRS § 712-1240.8 clearly precludes the applicability of sentencing as a young adult defendant under HRS § 706-667 for cases involving methamphetamine trafficking in the second degree because HRS § 706-667 is contrary to HRS § 712-1240.8. The legislature intended to divest the circuit court of its discretion to sentence Casugay-Badiang under any sentencing statute other than HRS § 712-1240.8(3). State v. Dannenberg, 74 Haw. 75, 80-81, 837 P.2d 776, 778-79 (1992) (the language “notwithstanding any law to the contrary” in the prostitution statute “clearly [limited] the discretion of the trial court in sentencing prostitution offenses and to provide a mandatory sentencing structure unlike that for other petty misdemeanors.”).
Reading the recent U.S. Dist. Court decision upholding Hawaii marriage laws in Jackson v. Abercrombie, I noted the following language from Bissen v. Fujii, 51 Haw. 636, 466 P.2d 429 (Haw. 1970):
In discussing the importance of judicial restraint in certain circumstances, the Hawaii Supreme Court has likewise acknowledged the ned to “recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislate accordingly.”
Bissen was an appeal from the circuit court’s denial of plaintiff’s motion to strike the defense of contributory negligence, in an action arising from an automobile accident, on grounds that comparative negligence and not contributory negligence was law of the jurisdiction thanks to recently passed legislation. The court noted that the accident had occurred before the law changed, and that the new statute expressly stated that it would not be retroactive. The appeal to deference to the legislature reads as follows:
Article III, Section 1 of our State Construction vests the legislative power of the State in the legislature. The legislative power has been defined as the power to enact laws and to declare what the law shall be. Gas & Electric Sec. Co. v. Manhattan & Queens Traction Corp., 266 F. 625 (2d Cir. 1920); People v. Puckett, 324 Ill. 293, 155 N.E. 319 (1927); Browne v. City of New York, 213 App.Div. 206, 211 N.Y.S. 306 (1925), aff’d, 241 N.Y. 96, 149 N.E. 211 (1925). Under this power the legislature also has authority to enact statutes to modify or change, for the future, common law as may have been established by decisions of courts. People v. Grand Trunk Western R. Co., 3 Mich.App. 242, 142 N.W.2d 54 (1966); S. H. Kress & Co. v. Superior Ct., 66 Ariz. 67, 182 P.2d 931 (1947). Certainly, a legislative enactment adopting the doctrine of comparative negligence in place of the common law rule of contributory negligence is strictly within the legislative power. The act in no way attempts to interfere with the judicial functions and no one has questioned its legality as an unconstitutional encroachment of the judicial branch of government.
We should recognize that, although courts, at times, in arriving at decisions have taken into consideration social needs and policy, it is the paramount role of the legislature as a coordinate branch of our government to meet the needs and demands of changing times and legislate accordingly.
Although the courts frequently venture into judicial law-making where there are gaps in substantive law, particularly in the field of torts, once the legislature has acted, it is not for us to evaluate the wisdom of legislative action, including the determination regarding retroactive or prospective applicability. Even Professor Fleming James, Jr., coauthor of Harper and James, The Law of Torts (1956), and who is one of those ‘who accept or welcome the present regeneration of judicial law making in the field of torts,’ states: ‘All concede that it is proper legislative function to make and change the law and that the courts should always respect the exercise of this function by a coordinate branch of government.’ [fn 2]
FN2. Fleming, Comment of Maki v Frelk, 21 Vand.L.Rev. 891, 893 (1968).
It should be remembered that though this court makes law on a case-by-case method, it is not a legislature. Further, at this time, we should not engage in ‘wholesale’ legislation such as the adoption of the doctrine of comparative negligence in place of contributory negligence. Such act on our part may frustrate the trial courts in their attempt to solve a countless number of questions and problems with which they will be faced.