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State v. Nilsawit

Supreme Court of Hawaii

November 10, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
SIRIPORN NILSAWIT, Respondent/Defendant-Appellee, and HAWAII NEWS NOW, Petitioner/Applicant-Appellant.




          POLLACK, J.

         The issue we resolve in this case is the manner in which a district court's decision regarding a request for extended coverage can be appealed. We hold that where the request for extended coverage originates from a member of the media, review of a district court's decision regarding that request is limited to the procedure set forth in the Rules of the Supreme Court of the State of Hawai'i (RSCH) Rule 5.1(f)(8). Relatedly, there is also no independent statutory authority that would allow the Intermediate Court of Appeals (ICA) to review the district court's decision.


         A. District Court Proceedings

         On April 29, 2014, Hawaii News Now (HNN) submitted an application for extended coverage[1] to the District Court of the First Circuit (district court) for the criminal case, State v. Nilsawit, No. 1DCW-14-0001187 (Application for Extended Coverage). The district court granted HNN's Application for Extended Coverage on the same day.[2]Among the circumstances surrounding the criminal case was the controversy regarding the Honolulu Police Department's then practice of allowing undercover police officers to engage in sexual conduct with persons selling sexual services during sting operations. On May 16, 2014, the State submitted its objection to HNN's Application for Extended Coverage (First Objection), which sought to prohibit HNN from televising or publishing a picture of the face or likeness of Officer Paul Goo, the officer involved in the events that culminated in the arrest of Siriporn Nilsawit. HNN thereafter submitted a Renewed Application for Extended Coverage (Renewed Application) on October 20, 2014. HNN requested that the district court deny any objection from a party in the criminal case and affirm the previously issued order that allowed HNN the right to full and complete coverage of the criminal proceeding, including the filming, televising, and photographing of Officer Goo and Nilsawit.

         Nilsawit filed a Reply to the Renewed Application, which sought to preclude coverage of Nilsawit's face. Nilsawit's Reply did not object to HNN's request to televise and publish Officer Goo's face. The State filed its Objection to the Renewed Application (Second Objection), which expanded upon the First Objection and requested that the faces of Officers Goo, Caesar Lazaro, Ilso Pratt, Herbert Soria, and Zachary Plevel be excluded from HNN's coverage. HNN submitted its Reply in Support of the Renewed Application, contending that neither the State and Nilsawit provided no evidence in support of their objections to HNN's Renewed Application.

         A hearing on HNN's Renewed Application took place on November 14, 2014, and on that day, the district court issued its Findings of Fact and Conclusions of Law for Hawaii News Now's Application for Extended Coverage and Order (FOF/COL). The court cited RSCH Rule 5.1(f)(3) and (5), [3] which enumerates instances in which a presumption of good cause exists for not allowing extended coverage. The district court found that Officers Goo, Lazaro and Plevel were involved in ongoing undercover investigations such that, by a preponderance of the evidence, good cause existed to prohibit the extended coverage requested. Consequently, the court prohibited HNN from televising or publishing the faces or likenesses of Officers Goo, Lazaro, and Plevel, unless the faces of the officers were blurred or otherwise made indistinguishable. Finally, the district court determined that HNN could publish the names of witnesses in the criminal case, including the names of Officers Goo, Lazaro, and Plevel.

         On January 21, 2015, relying on RSCH Rule 5.1(f)(9), [4]HNN filed a motion for leave to appeal the district court's FOF/COL to the ICA. The district court denied HNN's motion (Order Denying Leave to Appeal), reasoning that HNN exceeded the five-day period within which a motion for review of an order regarding coverage must be filed under RSCH Rule 5.1(f)(8).[5] The district court entered its Notice of Entry of Judgment And/Or Order in the criminal case on April 1, 2015.

         B. Appellate Proceedings

         HNN appealed to the ICA from the FOF/COL and the Order Denying Leave to Appeal. In its opening brief, HNN contended that the district court's factual findings provided an insufficient basis for limiting HNN's extended coverage "because they include no basis from which the State could have overcome the presumption in favor of extended coverage contained in RSCH Rule 5.1(f)(3)." HNN also asserted that the Order Denying Leave to Appeal was erroneous because it was based on HNN's decision not to seek administrative review of the FOF/COL, a course of action that HNN argued did not affect its right to appeal pursuant to RSCH Rule 5.1(f)(9).

         The State, in its answering brief, contended that the appeal was already moot because Nilsawit pleaded no contest to the charge, and consequently, there was not and there never will be a trial for which HNN could provide extended coverage. The State argued that the issue does not fall under the "capable of repetition, yet evading review" exception to the mootness doctrine because HNN could have filed (as it did in a previous case) a petition for a writ of prohibition and/or mandamus to this court if it wanted to appeal the FOF/COL. On the merits, the State contended that the evidence it adduced showed that a presumption of good cause pursuant to RSCH Rule 5.1(f)(5) existed to prohibit the publication of the pictures of the undercover officers. In its reply brief, HNN contended that its appeal satisfied the requirements of both the "capable of repetition, yet evading review" and public interest exceptions to the mootness doctrine.

         The ICA resolved the appeal on jurisdictional grounds, concluding that RSCH Rule 5.1(f)(8) is the exclusive procedure through which "[t]he media or educational institution" could seek "review of a court's order regarding a request for extended coverage." State v. Nilsawit, 137 Hawai'i 214, 216, 367 P.3d 708, 710 (App. 2016) (quoting RSCH Rule 5.1(f)(8)). The ICA held that the alternative avenue provided by RSCH Rule 5.1(f)(9) was not available to HNN because it is not a "party" pursuant to RSCH Rule 5.1(c)(7), which defines "party" as "a named litigant of record who has appeared in the case." Id. (quoting RSCH Rule 5.1(c)(7)). Hence, the ICA concluded that "HNN was required to comply with the procedures under RSCH Rule 5.1(f)(8) in order to appeal a court's order on extended coverage." Id. Because HNN failed to file its motion for review within the five-day period to the administrative judge of the district court as required under RSCH Rule 5.1(f)(8), the ICA dismissed HNN's appeal for lack of jurisdiction. Id.

         In its application for writ of certiorari to this court, HNN contends that it was not bound by RSCH Rule 5.1(f)(8) because it is a "party" to this case, thereby allowing HNN to proceed under RSCH Rule 5.1(f)(9).[6] In support of its assertion that it is a party, HNN maintains that it litigated its Application for Extended Coverage and the Renewed Application against the State and Nilsawit, it participated in the district court proceedings through its counsel, and it was frequently identified as a party in various documents in the record and in notices filed by the district court. As an additional basis for appellate review, HNN argues that the ICA has jurisdiction over its appeal pursuant to HRS § 641-1 (1993 & Supp. 2004) and that the ICA erred by completely ignoring HRS § 641-1 as a basis for its jurisdiction. On the merits, HNN makes the same arguments it made in the ICA.


         "The existence of jurisdiction is a question of law that we review de novo under the right/wrong standard." Lingle v. Haw. Gov't Emps. Ass'n, 107 Hawai'i 178, 182-83, 111 P.3d 587, 591-92 (2005). Construction of rules promulgated by this court is also reviewed de novo. Barcai v. Betwee, 98 Hawai'i 470, 479, 50 P.3d 946, 955 (2002).


         The central issue on certiorari is whether the ICA has jurisdiction over HNN's appeal. HNN proffers two alternate theories supporting the ICA's jurisdiction: (1) HNN has the right to appeal pursuant to RSCH Rule 5.1(f)(9), and (2) HRS § 641-1 provides an independent source of jurisdiction to the ICA.

         A. Appellate Rights Pursuant to RSCH Rule 5.1

         HNN argues that it was not limited to the procedure provided by RSCH Rule 5.1(f)(8) in seeking appellate review of the FOF/COL and that RSCH Rule 5.1(f)(9) is an available alternative in obtaining appellate review. RSCH Rule 5.1(f)(9) provides as follows:

A party may seek appellate review of an order regarding extended coverage, including any such order issued by the administrative judge, pursuant to the procedures available for review of other interlocutory orders, but immediate appellate review of ...

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