HAWSCT: Due Process, Parents' Rights, And The Need For Appellate Counsel

by Robert Thomas, InverseCondemnation.com

In a case we've been tracking (because we represent the petitioner), the Hawaii Supreme Court has issued a unanimous opinion in Hamilton v. Lethem, No. SCWC-27580 (Feb. 7, 2012). As we previewed here when the cert application was accepted, the issues in the case revolve around the due process rights of parents in civil TRO proceedings in Family Court.

The court held that "parents have a constitutional right to discipline children inherent in their liberty interest ... under the due process clause ... of the Hawaii Constitution[,] ... trial courts shall consider whether the discipline is reasonably related to the purpose of safeguarding or promoting the welfare of the minor in determining whether the parent's conduct constituted abuse or proper discipline, and ... a non-custodial parent retains the right to discipline a child when the child is under his or her supervision." Slip op. at 1-2. This decision will have a positive impact on the administration of justice across our state, and more importantly, it protects the rights of Hawaii's parents to have their day in court. A great day for due process and the rule of law. My Damon Key co-counsel Rebecca Copeland, who argued the case. has more on her blog Record on Appeal here.

One final point worth mentioning: we were late to this case, having only come in on the appellate level (Mr. Lethem represented himself in some of the earlier stages of the case, and the Intermediate Court of Appeals expressed some understandable frustration with the presentation of the arguments). While he represented himself quite ably given the circumstances (how many pro se petitioners have you seen who prevail on the "collateral consequences" exception to the mootness rules?), the later proceedings were an example of how appellate counsel add special value to a case by narrowing the points of appeal, focusing the issues, and highlighting the critical pieces of the case for the court. See slip op. at 13 ("Petitioner, now represented by counsel, lists the following questions in his Application:").

Hamilton v. Lethem, No. SCWC-27580 (Haw. Feb. 7, 2012)

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Volokh Conspiracy: Constitutional Right to Moderately Corporally Punish One’s Child

Hamilton v. Lethem, No. SCWC-27580 (Feb. 7, 2012), the opinion we posted about here is being hotly debated and discussed at the Volokh Conspiracy blog here.

Barista's note (since we represented the petitioner): many of the comments on Volokh make judgments about whether Father's acts constituted "abuse." However, the point we made in our arguments to the Hawaii Supreme Court was not that the court should determine whether they were or not, but rather whether it was possible for the lower courts to reach that conclusion without standards to guide the analysis. In the absence of standards, any conclusion they made regarding abuse was an ad hoc decision and violated due process. Thus, the Supreme Court did not reeach a conclusion about whether Father's acts were permissible discipline, but remanded the case to the family court to apply the standards the court set forth in the opinion, so it could make that determination.