TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000387; CR.
NOS. 13-1-0371 & 13-1-0556)
L. Tanakaya for petitioner
W.S. Goo for respondent Tui, Jr.
M. Spallina for respondent State
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
CIRCUIT JUDGE AYABE IN PLACE OF WILSON, J., RECUSED
case arises from a dispute regarding whether, under
Hawai'i Revised Statutes ("HRS") chapter 704,
custody of a defendant deemed unfit to proceed due to mental
disease or disorder can be transferred from the Director of
Health ("Director") to the Department of Public
Safety ("DPS") before a judicial determination that
the defendant has regained fitness. The Circuit Court of the
First Circuit ("circuit court") answered in the
negative, and the Director appealed. The day after the
Director's appeal, the circuit court determined that the
defendant, Joseph Tui, Jr. ("Tui"), was fit to
proceed, and transferred his custody to the DPS.
Intermediate Court of Appeals ("ICA") dismissed the
appeal as moot, holding that it lacked appellate jurisdiction
because custody of Tui had been already been transferred from
the Director to the DPS. According to the ICA, the
"capable of repetition, yet evading review"
exception to the mootness doctrine "d[id] not appear to
apply" because the "Director ha[d] not shown that
review of [the] adverse trial court decisions could not be
obtained through other means, such as a petition for writ of
mandamus or prohibition."
this case presents the procedural question of whether the ICA
erred in not considering the "capable of repetition, yet
evading review" exception to the mootness doctrine on
this basis. We hold that because there is no requirement that
"other means, such as a petition for writ of mandamus or
prohibition" be pursued before an appellate court can
consider whether the "capable of repetition, yet evading
review" exception to the mootness doctrine applies, the
ICA erred in not considering the exception. We then consider
whether the exception applies, and hold that it does. As the
ICA therefore erred in dismissing the appeal, we vacate the
ICA's November 9, 2015 "Order Dismissing Appeal For
Lack Of Appellate Jurisdiction" and remand the case to
the ICA to address the remaining issues on appeal.
Circuit Court Proceedings
charged with murdering his cell-mate while incarcerated at
Oahu Correctional Community Center ("OCCC"). He was
later also charged with assaulting a nurse during a prior
hospitalization at the Hawaii State Hospital ("Hospital,
" "State Hospital, " or "HSH"). On
January 14, 2015, following a hearing, Tui was found unfit to
proceed pursuant to HRS § 704-404 (2014).The proceedings
against him were suspended until further order of the court,
and Tui was committed to the custody of the Director pursuant
to HRS § 704-406 (2014) "to be placed at the 
Hospital or an appropriate institution for detention, care,
and treatment for so long as such unfitness shall
endure." According to the Director, the Hospital
was the only such "appropriate institution."
days later, on January 26, 2015, the Director filed a motion
for an order finding that Tui had regained fitness. The
Director also moved for a transfer of Tui's custody from
the State Hospital to the DPS. In the motion, the Director
asserted there was no clinical indication for Tui to remain
in an inpatient hospital unit and that prolonging Tui's
stay was endangering patients, staff, himself, and the
community at large. In the alternative, the Director
requested that another three-panel examination be ordered.
The motion was supported by a letter to the court, dated
January 23, 2015, from Dr. Allison Garrett ("Dr.
Garrett"), Tui's attending psychiatrist at the State
Hospital. Dr. Garrett's opinion was that Tui was fit,
posed a danger to others, and had a high flight risk.
hearing on February 5, 2015, the circuit court orally denied
the State's request for a fitness finding and transfer,
but ordered that Tui be re-examined. The circuit court
ordered that Tui remain at the Hospital pending a hearing on
that re-examination. The circuit court's order appointing
three examiners to review Tui's fitness to proceed and
penal responsibility was entered on March 5, 2015.
March 18, 2015, the Director filed a second motion for
transfer of Tui's custody to the DPS. The motion was
supported by letter to the court dated March 17, 2015, from
William J. May, the Hospital Administrator, indicating that a
special Administrative Safety Plan had been implemented for
Tui due to his violent behaviors and other events that
occurred within hours of his admission to the State
hearing on the Director's second motion to transfer Tui
was held on March 30, 2015. The Director argued that it was
not necessary for Tui to remain at the Hospital. She asserted
that although the circuit court had earlier found Tui unfit,
Tui could be still be transferred to OCCC because his fitness
status was uncertain in light of the court's ordering of
a three-panel re-examination. The Director argued that the
authority to order a three-panel re-examination also comes
from HRS § 704-404 and that under that statute, a
patient for whom a fitness examination has been ordered does
not need to be at the Hospital, but can be held at OCCC.
argued that the court should await the outcome of the
deputy prosecuting attorney then noted that it was the
attorney general, representing the Director, that was filing
the motion, and that the State of Hawai'i as prosecutor
had "not seen this avenue being taken to get somebody
that's still legally unfit back into the general
population." The prosecutor further stated that what the
Director was requesting was "fraught with risks, "
and noted "that's why the State or the
prosecutor's office is not joining in on this
circuit court then denied the motion, noting that Tui had
already been found unfit and that the re-examination was
therefore no longer an initial examination of fitness
pursuant to HRS § 704-404. The court ruled that pending
a ruling that he had regained fitness, as an unfit person,
Tui could not be held at OCCC. The ...