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                                                                   Electronically Filed
                                                                   Supreme Court
                                                                   SCWC-15-0000387
                                                                   10-OCT-2016
                                                                   07:58 AM



                IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

                            ---oOo---
________________________________________________________________

              STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee,

                                         vs.

         JOSEPH TUI, JR., Respondent/Defendant-Appellee,
   DIRECTOR OF HEALTH, DEPARTMENT OF HEALTH, STATE OF HAWAII,
     Petitioner/Real Party-in–Interest-Respondent/Appellant.
________________________________________________________________

                                 SCWC-15-0000387

              CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-15-0000387; CR. NOS. 13-1-0371 & 13-1-0556)

                                 OCTOBER 10, 2016

   RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
       CIRCUIT JUDGE AYABE IN PLACE OF WILSON, J., RECUSED


                     OPINION OF THE COURT BY McKENNA, J.

                                I.    Introduction

        This case arises from a dispute regarding whether, under

Hawaii Revised Statutes (“HRS”) chapter 704,1 custody of a


        1
               HRS Chapter 704 is titled “Penal Responsibility and Fitness to
Proceed.”
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defendant deemed unfit to proceed due to mental disease or

disorder2 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”)3

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.

        The 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

      2
            HRS § 704-403 (2014), titled “Physical or mental disease,
disorder, or defect excluding fitness to proceed,” provides:

               No person who as a result of a physical or mental disease,
               disorder, or defect lacks capacity to understand the
               proceedings against the person or to assist in the person’s
               own defense shall be tried, convicted, or sentenced for the
               commission of an offense so long as such incapacity
               endures.

This case concerns issues of whether Tui was unfit to proceed due to mental
disease or disorder. All references in this opinion to “fitness,”
“unfitness,” “fitness to proceed,” and “unfitness to proceed” relate only to
issues of fitness or unfitness due to mental disease or disorder, and not to
any other basis on which a defendant might be found unfit to proceed.
        3
               The Honorable Richard K. Perkins presided.


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could not be obtained through other means, such as a petition

for writ of mandamus or prohibition.”

       Thus, 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.

                              II.   Background

A.     Circuit Court Proceedings

       Tui was 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,




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Tui was found unfit to proceed pursuant to HRS § 704-404 (2014).4

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.”5


        4
            As it stated at the relevant time, HRS § 704-404, titled
“Examination of defendant with respect to physical or mental disease,
disorder, or defect,” provides in relevant part as follows:

                     (1) Whenever the defendant has filed a notice of
               intention to rely on the defense . . . or there is reason
               to doubt the defendant’s fitness to proceed, . . . the
               court may immediately suspend all further proceedings in
               the prosecution. . . .

                     (2) Upon suspension of further proceedings in the
               prosecution, the court shall appoint three qualified
               examiners in felony cases . . . to examine and report upon
               the physical and mental condition of the defendant. . . .
               The examination may be conducted on an out-patient basis
               or, in the court’s discretion, when necessary the court may
               order the defendant to be committed to a hospital or other
               suitable facility for the purpose of the examination[.]
        5
            HRS § 704-406, titled “Effect of finding of unfitness to
proceed,” provides in part as follows:

                     (1) If the court determines that the defendant lacks
               fitness to proceed, the proceeding against the defendant
               shall be suspended, . . . and the court shall commit the
               defendant to the custody of the director of health to be
               placed in an appropriate institution for detention, care,
               and treatment . . . .

               . . . .

                     (3) When the court, on its own motion or upon the
               application of the director of health, the prosecuting
               attorney, or the defendant, determines, after a hearing if
               a hearing is requested, that the defendant has regained
               fitness to proceed, the penal proceeding shall be
               resumed. . . .

                     (4) . . . Within a reasonable time following []
               commitment under subsection (1), the director of health
               shall report to the court on whether the defendant presents
                                                                (continued . . .)

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According to the Director, the Hospital was the only such

“appropriate institution.”

        Twelve 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.6

        At a hearing on February 5, 2015, the circuit court orally

denied the State’s request for a fitness finding and transfer,


(. . . continued)
            a substantial likelihood of becoming fit to proceed in the
            future. The court, in addition, may appoint a panel of
            three qualified examiners in felony cases . . . .
       6
            The letter from Dr. Garrett also detailed Tui’s cooperative
condition upon admission at HSH, the opinion of the mental health staff at
OCCC that Tui’s schizoaffective disorder was in remission, and that Tui was
capable of planning and arranging for contraband to be brought in to
facilitate an escape. Apparently, the night he was admitted to the Hospital,
despite being disallowed from having visitors, Tui’s sister, at his request,
attempted to bring him a duffle bag of clothes that contained a concealed
knife.



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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, 2015.7

        On 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 Hospital.8

        The hearing on the Director’s second motion to transfer Tui

was held on March 30, 2015.           The Director argued that it was not


        7
            Parts of HRS chapter 704 have been amended by Act 198 of 2016
(see Act 198 of 2016, S.B. 2888, C.D. 1, §§ 3-4), effective July 1, 2016
(“Act 198”), and Act 231 of 2016 (see Act 231 of 2016, H.B. 2561, C.D. 1, §§
4-6), effective July 11, 2016 (“Act 231”). In broad summary, Act 198 removes
the provisions in HRS § 704-404 relating to penal responsibility examinations
and inserts them in a new section, see Act 198, § 2, and retains provisions
relating to fitness to proceed examinations, at issue here, in HRS § 704-404.
Act 198 requires that, in felony cases, fitness to proceed examinations and
penal responsibility examinations be conducted separately, unless the court
orders otherwise. Act 231 is the comprehensive Penal Code revision bill.
With respect to HRS §§ 704-404 and -406, in broad summary, Act 231
temporarily eliminates (until July 1, 2018) the requirement that the Director
of Health’s designee to conduct fitness and penal responsibility examinations
be “from within the Department of Health.” Act 198 retains that limitation.
        8
            Regarding Tui’s psychiatric stability, the March 17, 2015 letter
provided updates from Tui’s treatment team at the Hospital purporting to
demonstrate his continued mental stability, including that his bipolar
disorder was in remission and that Tui was on a stabilized medication
regimen, and also included the results of a forensic evaluation.



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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.

       Tui argued that the court should await the outcome of the

three-panel re-examination.

       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 motion.”

       The 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

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at OCCC.     The circuit court scheduled a hearing on Tui’s three-

panel re-examination report for May 7, 2015.

        The order on the March 30, 2015 hearing did not enter until

May 5, 2015.     The next day, which was the day before the hearing

on the re-examination, the Director appealed the circuit court’s

order denying Tui’s transfer.         After the May 7, 2015 hearing to

review the report of the three examiners who had re-examined

Tui’s fitness to proceed, the circuit court found Tui fit to

proceed and committed him to the custody of the DPS.

B.      Appeal to the ICA

        In her Opening Brief to the ICA, the Director repeated the

arguments she had made to the circuit court.            She also argued

that although Tui’s custody had already been transferred to the

DPS, the ICA has jurisdiction over the appeal because the

custody status of a defendant pending re-examination of fitness

falls under the “capable of repetition, yet evading review”

exception to the mootness doctrine.9

        Tui agreed with the Director’s assertion that the ICA has

jurisdiction over the appeal based on the “capable of

repetition, yet evading review exception,” and also reiterated

his argument to the circuit court that a fitness finding was



      9
            The Director’s additional arguments as to why the ICA has
jurisdiction are not included as they are not necessary to our opinion.



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necessary before a defendant’s custody can be transferred to the

DPS.

       On November 9, 2015, the ICA issued its “Order Dismissing

Appeal For Lack Of Appellate Jurisdiction (“Order Dismissing

Appeal).”    The Order Dismissing Appeal provides, in relevant

part, as follows:

                  Where a subsequent hearing and determination of
            fitness resulted in the circuit court ordering transfer of
            Tui to the Director of Public Safety on May 7, 2015–two
            days after the 5/5/15 Order Denying Motion for Transfer in
            Cr. 13–1–0375/13–1–0556 from which Director appeals-the
            remedy of transfer has already been accomplished, and the
            ICA cannot grant said relief. Kaho‘ohanohano v. State, 114
            Hawai‘i 302, 332, 162 P.3d 696, 726 (2007) (“a case is moot
            if the reviewing court can no longer grant effective
            relief”); State v. Fukusaku, 85 Hawai‘i 462, 475, 946 P.2d
            32, 45 (1997) (“[a] case is moot where the question to be
            determined is abstract and does not rest on existing facts
            or rights”).

                  The ICA has no jurisdiction to decide moot cases
            where its judgment “could not be carried into effect, or
            that relief was impossible to grant.” Lathrop v. Sakatani,
            111 Hawai‘i 307, 312, 141 P.3d 480, 485 (2006), quoting TSA
            Int’l Ltd. v. Shimizu Corp., 92 Hawai‘i 243, 265, 990 P.2d
            713, 735 (1999) and Wong v. Bd. of Regents. Univ. of
            Hawai‘i, 62 Haw. 391, 394–95, 616 P.2d 201, 204 (1980). The
            mootness doctrine reflects that the conditions for
            justiciability—adverse interest and effective remedy—must
            remain alive throughout the litigation. Wong, 62 Haw. at
            394, 616 P.2d at 203–04.

                  The “capable of repetition yet, evading review”
            exception to mootness doctrine cited by the Director does
            not appear to apply. Hamilton Ex Rel Lethem v. Lethem, 119
            Hawai‘i 1, 5–10, 193 P.3d 839, 843–48 (2008). The Director
            has not shown that review of adverse trial court decisions
            could not be obtained through other means, such as a
            petition for writ of mandamus or prohibition.

C.     Application for Writ of Certiorari

       The Director presents the following questions on

certiorari:



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            1. Did the Intermediate Court of Appeals (ICA) gravely err
               when it dismissed the Director of Health’s (Director)
               appeal for failure to address the adverse trial court
               decision “through other means, such as a petition for
               writ of mandamus or prohibition” prior to the Director’s
               filing of an appeal?

            2.   Did the ICA gravely err when it failed to apply the
                 “capable of repetition, yet evading review” exception to
                 the mootness doctrine? Although this Defendant was
                 transferred back to the custody of the Director of
                 Public Safety (PSD), the custody status of a defendant
                 awaiting a panel re-examination, is implicated in every
                 regained fitness to proceed matter.

                          III.   Standard of Review

       Appellate courts review issues of mootness de novo.             Kansas

Judicial Review v. Stout, 519 F.3d 1107, 1114 (10th Cir. 2008);

Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th

Cir. 2004); Ammex, Inc. v. Cox, 351 F.3d 697, 704 (6th Cr.

2003).

                                 IV. Discussion

A.     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 dismissed the appeal as moot, holding that it

lacked appellate jurisdiction because custody of Tui had been

already been transferred.         In doing so, it stated that the

“capable of repetition, yet evading review” exception to the

mootness doctrine did not appear to apply because the Director

had not shown that review could not have been obtained through

“other means, such as a petition for writ of mandamus or




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prohibition.”     The ICA did not cite to any legal authority for

the latter statement, and we could find none.

       With respect to writs of mandamus or prohibition, this

court has stated:

            A writ of mandamus and/or prohibition is an extraordinary
            remedy that will not issue unless the petitioner
            demonstrates a clear and indisputable right to the relief
            requested and a lack of other means to redress adequately
            the alleged wrong or to obtain the requested action. Such
            writs are not meant to supersede the legal discretionary
            authority of the lower court, nor are they meant to serve
            as legal remedies in lieu of normal appellate procedures.
            Where a trial court has discretion to act, mandamus will
            not lie to interfere with or control the exercise of that
            discretion, even when the judge has acted erroneously,
            unless the judge has exceeded his or her jurisdiction, has
            committed a flagrant and manifest abuse of discretion, or
            has refused to act on a subject properly before the court
            under circumstances in which it has a legal duty to act.

Kema v. Gaddis, 91 Hawai‘i 200, 204-05, 982 P.2d 334, 338-39

(1999) (internal citation omitted).         Thus, these extraordinary

writs are not available if an issue can be adequately redressed

through a typical appeal.

       In comparison, there is no requirement that an appellant

pursue relief through other means, such as through a petition

for writ of mandamus or prohibition, in order to have an

appellate court address whether the “capable of repetition yet

evading review” exception to the mootness doctrine applies to an

issue on appeal.     In other words, although an extraordinary writ

cannot be obtained if adequate relief is available through an

ordinary appeal, the converse does not hold true; an appellant

is not required to show the unavailability of the extraordinary


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writ process in order to obtain appellate relief.            Moreover, as

also argued by the Director, extraordinary writs are only

available where there is a “clear and indisputable” legal right

to relief.    The circuit court ruled that she had no right to the

relief she requested.      Therefore, under the circumstances of

this case, she had no “clear and indisputable” legal right to

relief.    Thus, the ICA should have addressed whether the

“capable of repetition, yet evading review” exception to the

mootness doctrine applies in this case.          We therefore address it

now.

B.     The “capable of repetition yet evading review” exception to
       the mootness doctrine applies.

       The Director raises various arguments for applicability of

the “capable of repetition, yet evading review” exception to the

mootness doctrine.     She asserts that it is the practice of the

trial courts to order re-examinations to ascertain whether a

defendant has regained fitness to proceed, but there is no

explicit statute regarding the procedural process in determining

regained fitness to proceed.       She states that she “will remain

vigorous in requests to transfer defendants she believes are no

longer in need of in-patient care and treatment back to the

custody of the [DPS], while awaiting panel re-examinations”

given her position that trial courts have discretion to order

transfer of a defendant before a court confirms regained



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fitness.    She further asserts that the issue of “the pre-trial

custody of an alleged defendant affects the public interest,

will arise in the future, and will almost always become moot

before a needed authoritative determination by an appellate

court can be made.”      As to the last point, the Director also

argues that “a real question of law remains unsettled” because

“the interpretation and application of HRS chapter 704 affects

the proceedings of all criminal cases (in which mental

competency is at issue)[.]”       The Director therefore requests

that the ICA’s dismissal order be vacated and this case remanded

to the ICA for consideration of the points of error raised.

       “The mootness doctrine is said to encompass the

circumstances that destroy the justiciability of a suit

previously suitable for determination.”           Wong, 62 Haw. at 394,

616 P.2d at 203.     Thus, “[a] case is moot if the reviewing court

can no longer grant effective relief.”           Kaho‘ohanohano, 114

Hawai‘i at 332, 162 P.3d at 726 (brackets in original) (citations

omitted).    Nevertheless, this court has “repeatedly recognized

an exception to the mootness doctrine in cases involving

questions that affect the public interest and are ‘capable of

repetition yet evading review.’”           Okada Trucking Co., Ltd. v.

Bd. of Water Supply, 99 Hawai‘i 191, 196, 53 P.3d 799, 804 (2002)

(citations omitted).      Although the Director asserts that “the

pre-trial custody of an alleged defendant affects the public

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interest,” she does so in the context of arguing applicability

of the “capable of repetition, yet evading review” exception.

We note that the public interest exception and the “capable of

repetition, yet evading review” exception are two separate and

distinct exceptions.      See, e.g., Kaho‘ohanohano, 114 Hawai‘i at

333 n.23, 162 P.3d at 727 n.23; Lethem, 119 Hawai‘i at 5, 193

P.3d at 843 (“[T]his court has explicitly recognized two

exceptions to the mootness doctrine: (1) the ‘capable of

repetition, yet evading review’ exception; and (2) the public

interest exception.” (bracketed text omitted)).             With regard to

the exception for matters capable of repetition, yet evading

review, this court has stated:

            The phrase, “capable of repetition, yet evading review,”
            means that “a court will not dismiss a case on the grounds
            of mootness where a challenged governmental action would
            evade full review because the passage of time would prevent
            any single plaintiff from remaining subject to the
            restriction complained of for the period necessary to
            complete the lawsuit.”

Id. (internal citation omitted).

       The instant case falls within this exception to the

mootness doctrine.      The issue of whether custody of a defendant

previously found unfit can be transferred from the Director to

the DPS is an issue likely to evade review.           The facts of this

case amply demonstrate this point.         The issue is likely to arise

again given the Director’s assertion that she “will remain

vigorous in requests to transfer defendants she believes are no



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longer in need of in-patient care and treatment back to the

custody of the [DPS], while awaiting panel re-examinations.”

The issue is especially likely to evade appellate review because

if the Director is correct in her belief that a defendant has

regained fitness, by the time an appellate court reviews the re-

examination report, custody of the defendant will already have

been transferred to the DPS, which is what happened in this

case.

       Therefore, the ICA erred in dismissing the Director’s

appeal based on the mootness doctrine.

                               V. Conclusion

       Accordingly, we vacate the ICA’s Order Dismissing Appeal

and remand this case to the ICA to address the remaining issues

on appeal.

Debbie L. Tanakaya                 /s/ Mark E. Recktenwald
for petitioner
                                   /s/ Paula A. Nakayama
Nelson W.S. Goo
for respondent Tui, Jr.            /s/ Sabrina S. McKenna

Scott M. Spallina                  /s/ Richard W. Pollack
for respondent State
                                   /s/ Bert I. Ayabe




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