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Thursday, February 20, 2014
Supreme Court Nominee Wilson's Written Opinions
By Robert Thomas @ 5:42 PM :: 6233 Views :: Judiciary

HAWSCT Nominee Wilson's Written Opinions


by Robert Thomas, InverseCondemnation, February 20, 2014

On Tuesday, February 18, 2014, Hawaii Governor Neil Abercrombie named Judge Michael D. Wilson as his nomination for associate justice to the Supreme Court of the State of Hawaii to fill the upcoming vacancy when Associate Justice Simeon Acoba retires in March, having reached the mandatory retirement age. See Rebecca Copeland’s post on Record on Appeal for more details here.

Our Damon Key colleague Bethany C.K. Ace, currently the Chair of the Hawaii State Bar Association's Section of Appellate Law, has authored for us the following guest post, with some background on Judge Wilson, and the few written opinions he has produced while on the trial bench (Hawaii state circuit judges may be called upon from time to time to sit on the court of appeals or the supreme court, if a Justice is disqualified or recuses him or her self.)


Hawaii Supreme Court Associate Justice Nominee Michael D. Wilson

by Bethany C.K. Ace

As noted in the official press release by the Governor, Judge Wilson, 60, has served on the First Judicial Circuit since 2000, presiding over the felony trial calendar, drug court and mental health court. He has also served as chairperson for the Hawaii Board of Land and Natural Resources and Commission, commissioner for the Kahoolawe Island Reserve Commission and executive director for the state Division of Consumer Advocacy. Prior to that, Judge Wilson was a private practitioner – a partner with Brook Hart and Peter Wolff (1981 to 1986) and then a partner in the law firm of Pavey Wilson & Glickstein (1986 to 1994) – and was known as a "strong environmentalist."

On several occasions, Judge Wilson has sat by assignment on both the ICA and the Supreme Court for recused or retired judges and justices. During these assignments, Judge Wilson authored two brief concurring opinions, summarized below.

State v. Kikuta, 125 Haw. 78 (Haw. 2011). This was a certiorari review of a criminal case where the defendant allegedly injured his fourteen-year-old stepson. The main issues were the limitations placed by the trial court on the defendant’s chosen defense of parental discipline, including exclusion of jury instructions related to that defense and other excluded jury instructions. The majority decision, authored by Associate Justice Acoba, the Supreme Court held:

(1) an instruction on [HRS] § 703-309 (1993) (parent discipline defense) is not per se precluded by the fact that substantial bodily injury occurred; (2) as with other defenses, an instruction to the jury on the parental discipline defense must be given so long as there is some evidence in the record to support each element of the defense, no matter how weak, inconclusive, or unsatisfactory that evidence may be; and (3) an instruction on HRS § 707-712(2) (1993) (mutual affray) must be given along with an instruction on Assault in the Third Degree, HRS § 707-712(1), if there is any evidence that the injury was inflicted during the course of a fight or scuffle entered into by mutual consent.

(Footnotes omitted). The Court found sufficient evidence in the record to mandate giving the jury the excluded instructions and remanded for retrial consistent with the Court’s decision.

Judge Wilson concurred with the majority opinion, but wrote a separate concurring opinion to "add justification for remand of the case for a new trial." Judge Wilson framed the issue before the Court as "whether twelve citizens representing our community as jurors are barred as a matter of law from deciding a stepfather … was exercising parental discipline when he pushed his [stepson] into a glass door and struck him in the face." He supported judicial restraint in barring a jury from considering a defense: "Trial judges are rightfully adverse to the notion that judges should substitute their values for those of jurors by barring a defense requested by a defendant."

The opinion focused on the right to a jury trial which "is paramount among those rights enjoyed by individual citizens" and which "right of a jury of peers is the greatest protection we have from unlawful government action." The opinion found that the defendant had been deprived of a fair trial by being deprived the right to present the defense of his choice, including by not giving the jury instructions on such defense.

Pila‘a 400, LLC v. Board of Natural Resources, No. 28358 (Haw. App. 2012). [Barista's note: in that case, the Intermediate Court of Appeals, in an unpublished memorandum opinion, upheld the assessment by the Board of Land and Natural Resources (BLNR) of fines for environmental damage caused by a property owner's grading activities on Kauai. The Hawaii Supreme Court recently affirmed that decision, as we noted in our post earlier this week].

The Supreme Court, hearing the case on certiorari, found that the BLNR had jurisdiction to bring its enforcement action (related to the grading and grubbing on Pila‘a 400, LLC’s property causing runoff that catastrophically damaged the adjacent beach and the reef shore) and that the BLNR need not have adopted rules prior to calculating and imposing over $4 million in fines for damages and administrative costs.

Judge Wilson sat on the ICA by designation for that case, and wrote a separate concurring opinion to "further address the imposition of intrinsic damages by the [BLNR]."  The opinion takes issue with Pila‘a 400, LLC’s argument that there can be no intrinsic damages award because it’s a value impossible to monetize. Judge Wilson conlcuded "[t]his argument fails to understand the importance of protecting the environment, and the natural resources upon which it depends, under the Hawai‘i Constitution[,]" including Article XI, Section 1, which is unique to the State. The "intrinsic value in constitutionally mandated to be noticed and valued[.]" Under the Hawaii Constitution, it is the BLNR "that is empowered to steward and protect Hawai‘i’s natural beauty and its resources," and under Haw. Rev. Stat. § 171-6(15)(D), it is the BLNR which is entrusted "to act on behalf of the community to set the intrinsic value of damage to Hawai‘i’s natural resources and sanction those who create such damage[.]" Judge Wilson concurred in upholding the BLNR’s actions, finding that its findings of fact and conclusions of law "evince a clear understanding of its duty and its thorough completion." In its opinion affirming the ICA, the Supreme Court noted and adopted Judge Wilson's statements:

Natural beauty, the value of nature, is necessarily intrinsic. It is not susceptible to valuation based on price in the marketplace. The value of Hawaii’s forests is not the market value of its board feet. The value of Hawaii’s coral reefs is different than the value of its harvest.

See slip op. at 46 & n.28.

Although one hesitates to draw sweeping conclusions from the small sampling, the emphasis on the Constitution is apparent in both opinions, particularly when it comes to the environment. This seems consistent with statements made off the bench. According to a report in the Honolulu Star-Advertiser, Governor Abercrombie, when asked how he saw himself in terms of his role as a justice, Judge Wilson’s "instantaneous reply was, 'The Supreme Court is our public conscience.'"  This is also reflected in Governor Abercrombie’s explanation of his nomination: "Both on and off the bench, Judge Wilson is a well-respected leader. He brings a wealth of experience, having served as an attorney and Circuit Court judge. The Constitution and our kuleana responsibilities to it will be in good hands."

The nomination is subject to state Senate confirmation. The Hawaii State Bar Association has asked lawyers for their comments, so that the HSBA may make its qualified/not qualified recommendation.


Barista's note: according to this blog post by the Outdoor Circle (a long-established Hawaii environmental organization), Judge Wilson recently was "Advocating for an Environmental Court in Hawaii."  According to the post, at an environmental law event at the University of Hawaii law school:

Richardson law students had organized this event after taking a class in crime and the environment. Judge Michael Wilson had just returned from India where he met with all of the regional judges responsible for enacting a country wide Environmental Court there. He cited some of the important Hawai’i land use cases and how they approximated an environmental court process. He asked the students to consider the weight of this idea on future generations. When the professor asked for a paper on the solution to such a backlog of environmental issues, most students suggested a type of environmental court. It seemed that Judge Wilson was in favor of the law school leading this issue.

We've commented on this issue before.



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