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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                05-MAR-2020
                                                                09:15 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---o0o---
________________________________________________________________

         In re Sanctions Against EARLE A. PARTINGTON and
 ROBERT PATRICK MCPHERSON, Petitioners/Real Parties in Interest,
                                 in
         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee,
                                vs.
          MAGGIE KWONG, Petitioner/Defendant-Appellant.
________________________________________________________________

                               SCWC-XX-XXXXXXX

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-XX-XXXXXXX; CASE NO. 1DTA-17-02539)

                                MARCH 5, 2020

         RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, JJ.,
                     WITH WILSON, J., DISSENTING.

                  OPINION OF THE COURT BY, McKENNA, J.

                             I.     Introduction

       This case concerns whether the Intermediate Court of

Appeals (“ICA”) abused its discretion by (1) sanctioning

attorneys Robert Patrick McPherson (“McPherson”) and Earl A.

Partington (“Partington”) (sometimes collectively referred to as

“Counsel”) each in the amount of $50.00 based on Hawaiʻi Rules of
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Appellate Procedure (“HRAP”) Rule 51 (2010) (“sanctions orders”)

and by denying Counsel’s motion to reconsider the sanctions

orders; and (2) whether the Office of Disciplinary Counsel

(“ODC”) was authorized to thereafter send letters to Counsel

indicating it was administratively disposing of the matter and

that the sanctions orders could be used as evidence of

aggravation in any future disciplinary proceedings.

       As explained below, we hold (1) that the ICA did not abuse

its discretion by imposing sanctions on Counsel and denying the

motion for reconsideration; (2) but that the ODC was without

authority to treat the sanctions orders as administrative

dispositions that might be used in the future as evidence of a

pattern of conduct in aggravation.

       We therefore affirm the ICA’s sanctions orders against

Counsel, but also order that the clerk of the court transmit

this opinion to the ODC for appropriate action consistent with

this opinion.

                               II.   Background

A.     District court proceedings and notice of appeal

       On July 17, 2017, the State of Hawaiʻi (“State”) charged

Maggie Kwong (“Kwong”) via a complaint with “operating a vehicle

under the influence of an intoxicant” (“OVUII”) in violation of

Hawaiʻi Revised Statutes (“HRS”) § 291E-61(a)(1) (Supp. 2014).

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After a jury-waived bench trial on March 14, 2018,1 the District

Court of the First Circuit (“district court”) found Kwong guilty

as charged and sentenced Kwong to pay a fine and various fees,

as well as to attend a substance abuse program.              Upon

McPherson’s request, the district court delayed sentencing with

respect to Kwong’s license revocation until April 13, 2018.

       On March 14, 2018 the district court entered a judgment of

guilt and Kwong’s partial sentence.          On its face, the judgment

indicated that further sentencing on “LR,” which appears to be

shorthand for “License Revocation,” would take place on April

13, 2018.2     Before that date, however, on April 3, 2018, a notice

of appeal was filed by McPherson and Pedric Arrisgado

(“Arrisgado”).      At the April 13, 2018 sentencing hearing,

Arrisgado informed the district court of Kwong’s appeal.               The

district court did not proceed to sentencing with respect to the

license revocation and stayed Kwong’s previously imposed partial

sentence pending appeal.

       On May 29, 2018, the ICA filed a notice indicating Kwong’s

jurisdictional statement was due on June 8, 2018 and that her

opening brief was due on July 9, 2018.              On June 8, 2018,


1
       The Honorable William M. Domingo presided.
2
      The district court used the standard “Notice of Entry of Judgment
and/or Order and Plea/Judgment” form, which is also used for final judgments.
This could create confusion as to whether a judgment is partial or final.

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Partington entered an appearance for Kwong and filed a

jurisdictional statement asserting the ICA had appellate

jurisdiction over Kwong’s appeal.             On April 12, 2018, McPherson

had filed a request for transcripts, and various transcripts

were filed on June 12, 2018.

       Counsel did not, however, file an opening brief on July 9,

2018.    Instead, two days later, on July 11, 2018, Counsel

submitted an amended statement of jurisdiction pointing out that

appellate jurisdiction was lacking because sentencing had not

been completed.3       Counsel’s amended statement of jurisdiction

stated in relevant part:

             The Judgment filed below in the District Court of the First
             Circuit on March 14, 2018 . . . is not a final judgment.
             Sentencing was not completed on March 14, 2018, as final
             sentencing on Defendant’s license revocation was not held
             until April 13, 2018, ten days after the notice of appeal
             was filed[.] No final judgment has ever been filed.
             Defendant’s Notice of Appeal was timely filed pursuant to
             Rule 4(b)(1) of the Hawai[‘]i Rules of Appellate Procedure
             on April 3, 2018[.]

             . . . .

             The Judgment below did not dispose of all the claims
             against all the parties as sentencing was not complete.

             . . . .


3
       HRS § 641-12(a) (2016) provides:

             (a) Appeals upon the record shall be allowed from all final
             decisions and final judgments of district courts in all
             criminal matters. Such appeals may be made to the
             intermediate appellate court, subject to chapter 602,
             whenever the party appealing shall file notice of the
             party’s appeal within thirty days, or such other time as
             may be provided by the rules of the court.


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             Further sentencing as to Defendant’s license revocation did
             not take place until April 13, 2018. The sentence has been
             stayed pending appeal . . . . This case must be remanded to
             the district court for entry of a final judgment.

(Emphasis added.)      Thus, Counsel alerted the ICA to the lack of

appellate jurisdiction and stated that the case must be remanded

to the district court for entry of a final judgment.

B.     Order to show cause, Counsel’s response, and order for
       sanctions

       Six days later, on July 17, 2018, the ICA clerk’s office

sent a memorandum to Counsel, which stated:

             We docketed the record on appeal in the above-entitled case
             on 29-May-2018. The time for filing the appellant’s
             opening brief expired on 09-Jul-2018.

             This is to inform you that the matter will be called to the
             attention of the Court on 27-Jul-2018 for such action as
             the court deems proper, and the appeal may be dismissed.
             See Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 30.[4]

             Any request for relief from this default should be made by
             motion. See HRAP Rules 26 and 27.

Counsel did not file anything in direct response to the July 17,

2018 memorandum from the ICA.




4
       HRAP Rule 30 (2015) provides in relevant part:

             When the brief for appellant is not filed within the time
             required, the appellate clerk shall forthwith give notice
             to the parties that the matter will be called to the
             attention of the appellate court on a day certain for such
             action as the appellate court deems proper and that the
             appeal may be dismissed. When the brief of an appellant is
             otherwise not in conformity with these Rules, the appeal
             may be dismissed or the brief stricken and monetary or
             other sanctions may be levied by the appellate court
             . . . .

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       Almost six months later, on January 7, 2019, the ICA filed

an order to show cause directed at Counsel, which stated as

follows:

             (1) On April 3, 2018, [Kwong] filed the notice of appeal,
             through [McPherson];
             (2)   On May 29, 2018, the district court clerk filed the
             record on appeal, and the appellate clerk notified Kwong,
             through McPherson, that, among other things, the opening
             brief was due on or before July 9, 2018;
             (3)   On June 8, 2018, [Partington] entered an appearance
             for Kwong;
             (4) Kwong failed to file the opening brief, or request an
             extension of time;
             (5) On July 17, 2018, the appellate clerk notified Kwong,
             through McPherson and Partington,[5] that the time for filing
             the opening brief had expired, the matter would be called
             to the court’s attention on July 27, 2018, for appropriate
             action, which could include dismissal of the appeal,
             pursuant to Hawaiʻi Rules of Appellate Procedure Rule 30,
             and Kwong may request relief from default by motion; and
             (6) Kwong took no further action in this appeal.

             Therefore, IT IS HEREBY ORDERED that within ten (10) days
             from the date of this order, [McPherson] and [Partington]
             each shall show cause, jointly or separately, in the form
             of a declaration, affidavit, or other sworn statement,
             indicating why they failed to file the opening brief, or
             request an extension of time. Failure to timely respond to
             this order or to show good cause may result in sanctions.

       Counsel timely responded to the order to show cause on

January 17, 2019 as follows:

             In State v. Kilborn, 109 Haw. 435, 442, 127 P.3d 95, 102
             (App.2005), this court held that

                   Judgments of conviction entered in district
                   courts may not be appealed unless they are
                   final. Judgments of conviction are not final
                   unless they include the final adjudication and
                   the final sentence. In the instant case, the
                   sentence imposed was not the final sentence

5
      The notice of default was also addressed to Arrisgado, who had also
appeared as an attorney for Kwong in the notice of appeal. The ICA did not,
however, include Arrisgado in the later order to show cause or impose
sanctions on Arrisgado.


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                   because the district court expressly left often
                   the possibility that its sentence of Kilborn
                   might include an order requiring Kilborn to pay
                   restitution. The court did not finally decide
                   whether it would order Kilborn to pay
                   restitution and, if so, in what amount.
                   Consequently, the December 5, 2003 Judgment is
                   not final and, because it is not final, it is
                   not appealable.

             On July 11, 2018, Kwong filed an Amended Statement of
             Jurisdiction noting that no judgment as required by Kilborn
             has ever been filed in this case. Therefore, Kwong’s
             attorneys have been waiting for this court to dismiss this
             appeal and remand this case to the district court for entry
             of a judgment. Her attorneys were not aware that any more
             was needed to be done than that. The filing of any brief
             would have been a meaningless act.

       On February 13, 2019, the ICA entered a sanctions order,

ruling that Counsel’s January 17, 2019 response to the January

7, 2019 order to show cause failed to demonstrate good cause for

their failure to file an opening brief or request an extension

of time.     The ICA noted that the amended statement of

jurisdiction filed after the “default on the opening brief” was

not a motion to dismiss the appeal for lack of appellate

jurisdiction.      The ICA pointed out that it was not until Counsel

were ordered to show cause that Counsel represented Kwong’s

appeal should be dismissed for lack of jurisdiction.              The ICA

then ordered as follows:

             (1) Pursuant to Hawaiʻi Rules of Appellate Procedure Rule
             51,[6] Earle A. Partington and R. Patrick McPherson are
             sanctioned in the amount of $50.00 each.

6
       HRAP Rule 51 provides in relevant part:

            Any attorney of record or party in a case, who fails to
            comply with any of the provisions of the Hawaiʻi Rules
            of Appellate Procedure . . . or any order of the court
(continued. . .)
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             (2) Separate checks in the full amount, payable to the
             State Director of Finance, along with a copy of this order,
             shall be deposited with the Supreme Court Clerk’s Office
             within ten days from the date of this order.
             (3) A declaration of Counsel, jointly or separately,
             attesting to the payment shall be filed within ten days
             from the date of this order.
             (4) The sanction shall be paid by Counsel personally and
             without reimbursement.
             (5) Failure to comply with this order may result in
             additional sanctions.

       Then, on February 22, 2019, the ICA entered an order

dismissing Kwong’s appeal for lack of appellate jurisdiction,

because the judgment “on its face” indicated Kwong’s sentencing

was incomplete.      The ICA noted that because the notice of appeal

was jurisdictionally defective, filing the notice had not

transferred jurisdiction from the trial court to the appellate

court, quoting State v. Ontiveros, 82 Hawaiʻi 446, 449, 923 P.2d

388, 391 (1996).

C.     Motion for reconsideration

       On February 22, 2019, Counsel filed a motion for

reconsideration of the sanctions order.           Counsel asserted the

ICA incorrectly stated that Counsel had not represented to the

ICA that the appeal should be dismissed for lack of jurisdiction

until their January 17, 2019 response to the order to show

cause.    Counsel contended their July 11, 2018 amended statement


(. . . continued)
            shall be subject to monetary or other sanctions by
            the appellate court before which such case is pending, such
            sanctions to be levied by order of the appellate court or
            by order of any judge or justice thereof.

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of jurisdiction had set forth the lack of appellate

jurisdiction, and that they “are aware of no rule requiring them

to timely inform this court of the lack of jurisdiction more

than once.”

       The ICA denied the motion for reconsideration on February

28, 2019.7     The ICA noted that the amended statement of

jurisdiction did not request the appeal be dismissed, but rather

stated the ICA must remand the case for entry of a final

judgment, which was a different remedy than dismissal for lack

of jurisdiction.      The ICA also noted that the amended statement

of jurisdiction had been filed after the default of the opening

brief.

       After the denial of the motion for reconsideration, on

February 28, 2019 and March 1, 2019, McPherson and Partington

each paid their $50.00 sanctions.

D.     Application for writ of certiorari

       On March 6, 2019, Counsel timely filed an application for

writ of certiorari posing one question:

             Whether the ICA gravely erred in sanctioning Counsel and
             refusing reconsideration for Counsel’s failure to request
             dismissal in Kwong’s amended statement of jurisdiction

7
      The ICA construed the motion for reconsideration as a motion by
Partington on his behalf alone, and not also for McPherson, because
Partington electronically signed the motion for reconsideration alone, as
attorney for Kwong. As the motion for reconsideration also listed McPherson,
and, in any event, McPherson was not required to file a motion for
reconsideration in order to be included in the certiorari application, we do
not further address this issue.

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             wherein Kwong repeatedly informed the ICA that there was no
             judgment below and asked that the case be remanded to the
             district court for entry of judgment which the [ICA]
             refused to do[.]

(Capitalization altered.)

E.     Letters from the Office of Disciplinary Counsel

       On March 21, 2019, Counsel filed a supplemental memorandum

in support of their application attaching letters dated March

14, 2019 they had received from ODC.          The letters are discussed

in Section IV.B, infra.

                         III.   Standards of Review

A.     Order for sanctions

       Sanctions imposed under statute, court rule, or the trial

court’s inherent powers are reviewed for an abuse of discretion.

Gap v. Puna Geothermal Venture, 106 Hawaii 325, 331, 104 P.3d

912, 918 (2004).      The trial court abuses its discretion if it

bases its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.           Id.

B.     Motion for reconsideration

       A court’s ruling on a motion for reconsideration is also

reviewed for an abuse of discretion.          State v. Oughterson, 99

Hawaiʻi 244, 253, 54 P.3d 415, 424 (2002).




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C.     Questions of law

       Questions of law are reviewable de novo under the

right/wrong standard of review.          State v. Baranco, 77 Hawaiʻi

351, 355, 884 P.2d 729, 733 (1994).

                                  IV.    Discussion

A.     The ICA did not abuse its discretion by imposing sanctions
       pursuant to HRAP Rule 51 and denying the motion for
       reconsideration

       1.    Contrary to Counsel’s assertion, Joshua is
             inapplicable

       On certiorari, Counsel maintain that although they did not

expressly ask for dismissal of the appeal, they “did exactly

what this court said they should do [in State ex rel. Office of

Consumer Protection v. Joshua, 141 Hawaiʻi 91, 405 P.3d 527

(2017)] – move to remand this case to district court for the

entry of a judgment.”       Counsel cite to State v. Nicol, 140

Hawaiʻi 482, 488, 403 P.3d 259, 265 (2017), for the proposition

that “[t]he rule of finality for jurisdiction to appeal is the

same in criminal case[s].”        Counsel contend this court should

therefore reverse the ICA’s order for sanctions and order the

State Director of Finance to refund Counsel’s sanction payments.

       We reject Counsel’s contention that the ICA should have

remanded the case to the district court for an entry of final

judgment based on Joshua.


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       In Joshua, we prospectively held that when a party to a

circuit court civil case timely appeals a purported final

judgment later determined not to meet finality requirements set

out in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawaiʻi 115,

119, 869 P.2d 1334, 1338 (1994) (per curiam), “rather than

dismiss the appeal, the ICA must temporarily remand the case to

the circuit court ‘in aid of its jurisdiction’ pursuant to

HRS § 602-57(3) (2016) for entry of an appealable final judgment

with a direction to the circuit court to supplement the record

on appeal with the final judgment.”          Joshua, 141 Hawaiʻi at 93,

405 P.3d 529.

       By its clear language, Joshua only applies to purported

“final judgments” in circuit court civil cases, which are so

titled and intended by circuit court judges, but fail to meet

Jenkins finality requirements.         Its holding does not apply to

any other kind of judgment, especially not to judgments that

were never intended to be “final judgments.”            Thus, Counsel’s

argument that they “did exactly what this court said they should

do – move to remand this case to district court for the entry of

a judgment,” is devoid of merit.8



8
      In addition, Counsel never “moved” the ICA to remand the case to the
district court for entry of final judgment as represented; if Counsel had
clearly done so, the ICA could have denied the motion at the time.


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       In addition, to the extent Counsel may be suggesting that,

through this case, we expand the Joshua requirement of a remand

for entry of final judgment to district court criminal

judgments, we decline to do so for the following reasons.

       First, a remand for entry of final judgment under the

circumstances of this case would contravene HRAP Rule 4(b)(4)

(2020), which governs “Premature Notice[s] of Appeal” in

criminal cases, and provides:

             (b)   Appeals in criminal cases.
             . . . .
             (4) Premature Notice of Appeal. A notice of appeal filed
             after the announcement of a decision, sentence or order but
             before entry of the judgment or order shall be deemed to
             have been filed on the date such judgment or order is
             entered.

(Emphasis added.)      Applying this rule, the April 9, 2018

premature notice of appeal in this case could not have been

deemed to have been filed on a later date because the sentence

on license revocation had not been “announced” as of the April

9, 2018 filing of the notice of appeal.           Thus, pursuant to HRAP

Rule 4(b)(4), the ICA would not have been able to “‘aid . . .

its jurisdiction’ pursuant to HRS § 602-57(3) (2016)” because it

would not have been able to acquire appellate jurisdiction even

if it had ordered a remand.         Joshua, 141 Hawaiʻi at 93, 405 P.3d




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at 529.    In order for appellate jurisdiction to exist, a new

notice of appeal would have been required.9

       In comparison, Joshua did not implicate concerns under HRAP

Rule 4(a)(2), which governs “Premature filing of appeal[s]” in

civil cases, and provides as follows:

             If a notice of appeal is filed after announcement of a
             decision but before entry of the judgment or order, such
             notice shall be considered as filed immediately after the
             time the judgment or order becomes final for the purpose of
             appeal.

In other words, in the circuit court civil cases for which

Joshua requires remand for entry of Jenkins-compliant final

judgments, not only have “decision[s]” been “announce[d],” the

circuit courts have already entered purported “final judgments”

termed as such.      Thus, not only is Joshua consistent with HRAP

Rule 4(a)(2), it does not impose a significant administrative

burden on the ICA.10


9
      We note that, as stated by the ICA in its sanctions orders, Kwong’s
premature notice of appeal did not deprive the district court of
jurisdiction, Ontiveros, 82 Hawaiʻi at 449, 923 P.2d at 391, and the district
court retained jurisdiction to proceed with Kwong’s sentencing. If, however,
the district court had proceeded on the license revocation matter on April
13, 2018, and had entered an appealable “final judgment,” but another notice
of appeal was not filed within thirty days thereafter, the thirty-day
deadline for filing a notice of appeal under HRAP Rule 4(b)(1) would have
passed by the time this appeal was dismissed by the ICA on February 22, 2019.
10
      The issue of whether Joshua should be extended to premature notices of
appeal from district court criminal cases that may be consistent with HRAP
Rule 4(b)(4) is not before us at this time, and we do not address it. We do
note, however, that only a small percentage of the 3,334 “civil actions”
filed in state circuit courts in fiscal year 2019 will result in “final
judgments” subject to Joshua’s remand requirement, but a significantly higher
percentage of the 27,932 “criminal actions” filed in state district courts
could result in “judgments” being filed that do not meet Kilborn finality
(continued. . .)
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       Second, as we noted in Joshua, Jenkins finality

requirements resulted in numerous dismissals of appeals from

intended and purported “final judgments.”           Joshua, 141 Hawaiʻi at

97 n.9, 405 P.3d at 533 n.9.         Dismissals based on non-compliance

with Jenkins finality requirements were sometimes due to circuit

court civil cases involving numerous parties and claims.11                 As

compared to circuit court civil judgments, however, similar

issues have not arisen based on finality requirements for

district court criminal judgments.12

       Finally, and as noted earlier, Joshua applied to circuit

court civil judgments so titled and intended to be “final


(. . . continued)
requirements for appellate purposes. See, State of Hawaiʻi Judiciary, 2019
Annual Report Statistical Supplement 12, 25 (2019), available at
https://perma.cc/CN89-LYU8. Thus, requiring the ICA to remand for entry of
final judgments in district court criminal cases in which a final decision
has been “announced” but a premature notice is filed before entry of final
judgment could result in a significant administrative burden on the ICA,
because (1) premature notices of appeal could be filed in a significant
number of district criminal cases; and (2) in those cases, the ICA would need
to ascertain whether remand for entry of final judgment would be consistent
with HRAP Rule 4(b)(4).
11
      For example, in circuit court civil cases, there are sometimes many
parties in addition to a plaintiff and a defendant, such as additional
plaintiffs, additional defendants, third-party and additional third-party
defendants, cross-claim and additional cross-claim defendants, and
counterclaim and additional counterclaim defendants. All of those parties
can assert claims against each other; some claims are asserted against some
parties, but not others. The circuit courts must then endeavor to provide
detailed dispositions of each claim in final judgments.
12
      Although district court criminal judgments can involve more than one
defendant with more than one charge, the ICA’s 1995 opinion in Kilborn made
clear that “[j]udgments of conviction are not final [for purposes of
HRS § 641-12(a), see note 3, supra] unless they include the final
adjudication and the final sentence.” Kilborn, 109 Hawaiʻi at 442, 127 P.3d
at 102.

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judgments” by circuit court judges.          In comparison, this appeal

arose because a notice of appeal was filed by McPherson and

Arrisgado before Kwong’s sentencing was completed; on its face,

the March 14, 2018 judgment of guilt, which only included

Kwong’s partial sentence, never purported to be a “final

judgment” meeting Kilborn requirements.

       Therefore, we decline to expand Joshua to district court

criminal cases.

2.     The ICA did not abuse its discretion in imposing the
       sanctions orders, which were grounded on HRAP Rule 51, and
       in denying the motion for reconsideration

       Counsel discuss the procedural history, summarized in

Sections II.A through C above, and contend the ICA “exhalt[ed]

form over substance” when it imposed sanctions and denied the

motion for reconsideration on the grounds the July 11, 2018

amended statement of jurisdiction did not suggest the ICA should

dismiss the appeal for lack of jurisdiction, but rather stated

that the “case must be remanded to the district court for entry

of a final judgment.”

       As noted above, a court’s imposition of sanctions is

reviewed for an abuse of discretion, and when a sanctions order

is based on a violation of a court rule, there is an abuse of

discretion if the court bases its ruling on an erroneous view of

the law or erroneous assessment of the evidence.             Gap, 106

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Hawaiʻi at 331, 104 P.3d at 918.            If a sanction is not imposed

under a statute or court rule, however, a court may not invoke

its inherent powers to sanction an attorney without a specific

finding of bad faith.       Bank of Hawaii v. Kunimoto, 91 Hawaiʻi 372,

389, 984 P.2d 1198, 1215 (1999) (citations omitted).

       The ICA’s February 13, 2019 sanctions orders were

explicitly based on HRAP Rule 51, entitled “Sanctions,” which

provides:

             Any attorney of record or party in a case, who fails to
             comply with any of the provisions of the Hawai‘i Rules of
             Appellate Procedure, the Hawai‘i Electronic Filing and
             Service Rules, or any order of the court shall be subject
             to monetary or other sanctions by the appellate court
             before which such case is pending, such sanctions to be
             levied by order of the appellate court or by order of any
             judge or justice thereof.

It is undisputed that Kwong’s opening brief was not timely

filed.    Upon filing a notice of appeal, pursuant to HRAP Rule

28(b) (2016), an appellant must file an opening brief within

forty days after the filing of the record on appeal.              The record

on appeal in this case was filed on May 29, 2018, making Kwong’s

opening brief due July 9, 2018.         The ICA’s May 29, 2018 notice

expressly notified Counsel that Kwong’s opening brief was due on

that date.

       Although it would not have made sense under the

circumstances for Counsel to file an opening brief by the July

9, 2018 due date, Counsel did not file their amended statement


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of jurisdiction indicating there was no appealable final

judgment until two days after the due date.            In it, Counsel

incorrectly asserted, “This case must be remanded to the

district court for entry of a final judgment.”13

       Counsel did not even file anything in direct response to

the July 17, 2018 memorandum from the ICA.            Counsel’s January

17, 2019 response to the ICA’s January 7, 2019 order to show

cause then quoted Kilborn, and stated that based on their July

11, 2018 amended statement of jurisdiction indicating no final

judgment had been filed, “Kwong’s attorneys have been waiting

for this court to dismiss this appeal and remand this case to

the district court for entry of a judgment.”            Contrary to this

assertion, Counsel had never previously indicated that dismissal

of the appeal was required due to a lack of appellate

jurisdiction.14     In fact, on certiorari, they make clear that the

statement in their amended statement of jurisdiction that

“[t]his case must be remanded to the district court for entry of

13
       See Section IV.A.1, supra.
14
      As discussed, under the circumstances of this case, dismissal of the
appeal, not remand for entry of final judgment, was required. Sentencing
regarding license revocation was never completed so a final judgment was not
entered.

      Even when a court lacks subject matter jurisdiction, however, it
retains jurisdiction to impose sanctions in order to “maint[ain] orderly
procedure.” See Willy v. Coastal Corp., 503 U.S. 131, 137-39 (1992)
(affirming district court’s imposition of Rule 11 sanctions despite lack of
subject matter jurisdiction).


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a final judgment” was intended to mean exactly what it said:

Counsel were demanding that the ICA remand the case for entry of

a final judgment, rather than dismiss the appeal.

       The ICA’s sanctions orders also noted that the amended

statement of jurisdiction was not a motion to dismiss, and it

was not until Counsel were ordered to show cause that Counsel

represented that the appeal should be dismissed for lack of

appellate jurisdiction, a position they again now contravene on

certiorari, arguing that the ICA should have remanded the case

for entry of a judgment pursuant to Joshua.

       At bottom, nothing was filed by the due date of the opening

brief and Counsel could have and should have alerted the ICA to

the lack of appellate jurisdiction well before that date, which

would have prevented the appellate clerk’s July 17, 2018

memorandum and the ICA’s January 7, 2019 order to show cause.

       For all of these reasons, the ICA did not abuse its

discretion in entering the sanctions orders against Counsel.

The ICA also did not abuse its discretion by denying the motion

for reconsideration, which did not present a basis in law as to

why sanctions should not be imposed.          See HRAP Rule 40(b) (2000)

(a motion for reconsideration “shall state . . . the points of

law or fact that the moving party contends the court has

overlooked or misapprehended . . . .”).

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B.     The ODC was without authority to treat the sanctions orders
       as administrative dispositions that might be used in the
       future as evidence of a pattern of conduct in aggravation

       We now turn to address the March 14, 2019 ODC letters to

Counsel.     The letters stated as follows:

             This office has been informed by the Intermediate Court of
             Appeals (“ICA”) that you were sanctioned in the above
             related case for violation of an applicable rule of court,
             or appellate procedure.1 The Hawaiʻi Rules of Professional
             Conduct (“HRPC”) provides that “[a] lawyer shall not: . . .
             (e) knowingly disobey an obligation under the rules of a
             tribunal . . .” Thus, the sanctioned conduct is likely
             “misconduct” within the disciplinary rules of the Hawaiʻi
             Supreme Court.

             However, we also note that the ICA order did not contain a
             specific instruction for ODC to review your conduct for
             possible institution of disciplinary charges (which it
             often does). Thus, we chose to deem this referral as an
             informational event, and elect to dispose of the matter
             administratively. Administrative disposition means that
             this event is not docketed as a “disciplinary complaint”
             and thus no formal record of disciplinary history will be
             created.

             However, a record of this administrative disposition will
             be maintained in our internal files. Should the ICA, or
             other complainant, allege similar or more serious
             misconduct in the future, this administrative disposition
             might be used as evidence of a pattern of conduct in
             aggravation.2 Thus it would behoove you to keep this an
             isolated or “one-off” event.
                   1
                     Monetary sanctions are permitted by, inter alia,
                   HRAP Rule 51.
                   2
                     See e.g.,: ABA Standards for Imposing Lawyer
                   Sanctions (rev. 1992), Standard 9.22(c).

Each letter contained an assigned ODC case number in the

headings.

       The record does not contain any referral from the ICA to

the ODC of the sanctions orders.            The ODC listed ICA as the

“complainant” in each of the letters.            A “complainant” is

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defined by the Rules of the Disciplinary Board (“RDB”) Rule 3(d)

(2011) as “a person who has expressed dissatisfaction with an

Attorney to the ODC.”       It is unclear from the record whether the

ICA actually expressed dissatisfaction with Counsel to the ODC

and, if so, how.

       In any event, the ODC indicated it was treating the

sanctions orders as “informational event[s]” and that it was

disposing of the matter administratively, resulting in an

“administrative disposition.”         The Rules of the Supreme Court of

Hawaiʻi (“RSCH”) Rule 2.6(b)(2) (2013) requires, however, that an

attorney be afforded an opportunity to be heard prior to the ODC

recommending or undertaking any disposition:

             Except in matters requiring dismissal because the complaint
             is frivolous on its face or falls outside the Board’s
             jurisdiction, no disposition shall be recommended or
             undertaken by [Disciplinary] Counsel until the accused
             attorney shall have been afforded the opportunity to state
             [their15] position with respect to the allegations against
             [them].

Counsel were not afforded an opportunity to state their

positions to the ODC with respect to the allegations against

them.    Thus, the ODC’s “administrative dispositions” are not

authorized by RSCH Rule 2.6(b).



15
      “They, them, and their” are used as singular pronouns when (1) the
gender identity of the person referred to is unknown or immaterial; or (2)
those are the pronouns of a specific person.



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       In addition, the ODC letters also stated that the

unauthorized “administrative dispositions” could be used as

evidence of aggravation, and cited to ABA Standards for Imposing

Lawyer Sanctions (“ABA Standards”) Standard 9.22(c), which

allows “a pattern of misconduct” to be considered as aggravating

evidence in formal disciplinary proceedings.            See RDB Rule

23(a)(iv).     “Aggravating factors or circumstances may justify an

increase in the degree of discipline to be imposed.”              Office of

Disciplinary Counsel v. Au, 107 Hawai‘i 327, 344, 113 P.3d 203,

220 (2005) (internal bracketing and quotations removed) (quoting

ABA Standards, Standard 9.21, at 15 (1991)).            “Misconduct” is

further defined by RSCH Rule 2.2 (2008) as “[a]cts or omissions

by an attorney which violate the Hawai‘i Rules of Professional

Conduct[.]”

       The ODC indicated the sanctions orders were “likely

misconduct” based on HRPC Rule 3.4(e) (2014), which provides in

part that “[a] lawyer shall not: . . . (e) knowingly disobey an

obligation under the rules of a tribunal . . . .”             (Emphasis

added.)    The RDB require the ODC, however, to investigate “all

matters involving alleged violations of the Hawaiʻi Rules of

Professional Conduct in accordance with RSCH [Rules] 2.6(b)(2)




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and 2.6(b)(3).”16        RDB Rule 12 (2013).      There is no indication

that the ODC conducted an investigation to determine whether

Counsel had “knowingly” violated an obligation under a court

rule.    Further, formal disciplinary proceedings require that

attorney misconduct be established by “clear and convincing

evidence,” a standard not required for sanction orders.                RSCH

Rule 2.7(c) (2019).

       Court sanctions orders can be issued for reasons that would

not constitute a “knowing” violation of an obligation under a

court rule based on “clear and convincing evidence.”               Monetary

sanctions are sometimes imposed on counsel for late appearances

or filings or for exceeding page limits set by court rules,


16
       RSCH Rule 2.6(b)(2) & (3) provide as follows:

             2.6.    Disciplinary counsel.
             . . .   .
             (b)     Powers and duties of Chief Counsel. Chief Counsel
             shall   have the power and duty:
                     . . . .
                     (2) To dispose, subject to review by members of the
                     Board assigned by the Chairperson, of all matters
                     involving alleged misconduct by dismissal, private
                     informal admonition, referral to a minor misconduct
                     or assistance program, or the institution of formal
                     disciplinary proceedings before a hearing committee
                     or officer. Except in matters requiring dismissal
                     because the complaint is frivolous on its face or
                     falls outside the Board’s jurisdiction, no
                     disposition shall be recommended or undertaken by
                     Counsel until the accused attorney shall have been
                     afforded the opportunity to state [their] position
                     with respect to the allegations against [them].
                     (3) To file with the supreme court certificates of
                     conviction of attorneys for crimes.



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without the issuing judge having intended for the sanctions

orders to be considered “misconduct” that could be considered as

“aggravating” factors in later disciplinary proceedings.               Thus,

court sanction orders must not be treated by the ODC as

referrals for investigation of misconduct without an express

referral to the ODC by the court.           If there is such a referral,

ODC must follow the procedure set out by applicable rules,

including providing an attorney with the due process protections

provided by the rules.       Therefore, even after a specific

referral by a judge, the ODC may not consider orders for

sanctions as evidence of aggravation under ABA Standard 9.22(c)

unless a determination has been made through the procedures set

forth in the RSCH and RDB that the sanctioned conduct is a

“clear and convincing” and “knowing” violation constituting

“misconduct” under the HRPC.

       For these reasons, the ODC was without authority to treat

the ICA sanction orders as administrative dispositions that

might be used in the future as evidence of a pattern of conduct

in aggravation.

                               V.    Conclusion

       For the foregoing reasons, we affirm the ICA’s sanctions

orders against Counsel, but also order that the clerk of the




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court transmit this opinion to the ODC for appropriate action

consistent with this opinion.

Earle A. Partington and              /s/ Mark E. Recktenwald
R. Patrick McPherson,
Real Parties In Interest             /s/ Paula A. Nakayama

                                     /s/ Sabrina S. McKenna

                                     /s/ Richard W. Pollack




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