State v. Olione

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-AUG-2024
08:19 AM
Dkt. 47 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
BRENDA OLIONE, Defendant-Appellee, and
JAMES N. GREENBERG, Real Party-in-Interest-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and McCullen, JJ.)

Real Party in Interest-Appellant, Deputy Public

Defender James N. Greenberg (Greenberg), appeals from the

September 29, 2021 Findings of Fact [[FOFs)], Conclusions of Law

[(COLs)] and Order Issuing Sanctions as to James Greenberg Esq.

(Sanctions Order), entered by the Circuit Court of the Third

Circuit (Circuit Court).1

On September 14, 2021, a bench trial was held in State

v. Olione, with Greenberg appearing on behalf of Defendant Brenda

Olione. During cross-examination of the complaining witness

(CW), the Circuit Court sustained numerous objections to the form

1
The Honorable Robert D.S. Kim presided.
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of Greenberg's questions, and after multiple heated exchanges

over whether the form of questioning was proper, the Circuit

Court informed Greenberg that a sanctions hearing would be held

for his disruptive and disrespectful conduct.

At a hearing held on September 22, 2021, Greenberg was

given notice of what the alleged basis of sanctions would be:

(1) violation of Rule 3.5, Hawai#i Rules of Professional Conduct

(HRPC) (2014);2 (2) failure to follow the court's instructions;

(3) disrespectful behavior; (4) lack of civility; and (5) lack of
respect to the tribunal. The Circuit Court continued the hearing

to give Greenberg time to prepare. After a further hearing on

September 27, 2021, on September 29, 2021, the Circuit Court

issued the Sanctions Order, fining Greenberg $500. Greenberg

timely appealed.

Greenberg raises a single point of error on appeal,

contending that the Circuit Court abused its discretion in

2
HRPC Rule 3.5 states, in pertinent part:

Rule 3.5. IMPARTIALITY AND DECORUM OF THE TRIBUNAL.
. . . .
(c) Disruption of Tribunal. A lawyer shall not engage in
conduct intended or reasonably likely to disrupt a tribunal.
(d) Communication with a Judge or Official. In an
adversary proceeding, a lawyer shall not communicate as to
the merits of the cause with a judge or an official before
whom the proceeding is pending except:

(1) in the course of the official proceeding in the
cause;

(2) in writing if the lawyer promptly delivers a
copy of the writing to the opposing counsel or to the adverse
party if not represented by a lawyer; or

(3) orally upon notice to opposing counsel or to the
adverse party if not represented by a lawyer.

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imposing a $500 fine against him. Greenberg also challenges the

following FOFs and COLs entered by the Circuit Court:
1. The record discloses a violation of Rule 3.5, [HRPC],
to wit: Excessive belligerence to the tribunal.
2. During the trial [Greenberg] repeatedly failed to ask
questions, but instead made statements, during the
cross-examination of [CW] despite repeated warnings by
the Court.

. . . .
4. The Courts have inherent equity, supervisory, and
administrative powers as well as inherent powers to
control the litigation process before them. These
inherent powers are derived from the Hawaii State
Constitution, and are not confined by or dependent on
state statutes. Enos v. Pacific Transfer & Warehouse,
Inc., 79 Haw. 452, 903 P.2d 1273 (1995).

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Greenberg's point of error as follows:

Greenberg's overarching argument is that the Circuit

Court abused its discretion in imposing sanctions against him

because he did not act in "bad faith."

HRPC Rule 3.5(c), Disruption of Tribunal, states that

"[a] lawyer shall not engage in conduct intended or reasonably
likely to disrupt a tribunal." Comment [2] to HRPC Rule 3.5

provides guidance that:
[2] The advocate's function is to present evidence and
argument so that the cause may be decided according to
law. Refraining from abusive or obstreperous conduct is a
corollary of the advocate's right to speak on behalf of
litigants. A lawyer may stand firm against abuse by a
judge but should avoid reciprocation; the judge's default
is no justification for similar dereliction by an advocate.
An advocate can present the cause, protect the record for
subsequent review, and preserve professional integrity by
patient firmness no less effectively than by belligerence or
theatrics.

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Belligerence is defined as "an aggressive or truculent attitude,

atmosphere, or disposition. Belligerence, The Merriam-Webster

Dictionary (new ed. 2022). The trial transcript reveals numerous

statements that are impertinent, disrespectful, and demonstrate

an aggressive or truculent attitude toward the Circuit Court.

After the Circuit Court had already sustained numerous

objections to the form of Greenberg's questions, the court

finally asked Greenberg if his bar license is important to him,

to which Greenberg answered, "no it isn't." When the judge
responded, "well, it isn't to me," Greenberg retorted "well,

good." When the Circuit Court explained to Greenberg, "there's

nothing wrong with strenuous, you know –- cross-examination,"

Greenberg responded snidely, "oh, that's the first time I've ever

done it." The court then told Greenberg, "you talk to me like

that, when this trial is over we're gonna have a hearing on

sanctions. Okay?" Greenberg responded, "great." The Circuit

Court informed Greenberg, "okay, I've -– I've warned you, and at

the end of the trial there's gonna be a sanction hearing."

Greenberg responded, " Fine . . . I don't mind –- I don't mind

sanctions at this stage –- stage in my life. I don't really

care. You know I don't. You wanna know the –- truth? I don't

care." (Format altered).

We conclude that the Circuit Court's finding that the

record discloses excessive belligerence to the tribunal is not

clearly erroneous.

The record of Greenberg's cross-examination of the CW

also supports the court's finding that, despite repeated

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warnings, Greenberg continually failed to ask questions and

instead made statements and/or testified during cross-

examination. While Greenberg maintains that these remarks were

questions, we conclude that FOF/COL 2 is not clearly erroneous.

Greenberg argues that bad faith cannot be found because

he believed that the Circuit Court was inappropriately dictating

the specific style of his cross-examination, and his responses

were merely "disruptful," but cannot be considered bad faith

because he believed he was in the right. After careful review,
we conclude that Greenberg's contention that the Circuit Court

was mandating a specific style of cross-examination is simply not

supported by the record.

Nevertheless, a court may not invoke its inherent

powers pursuant to Hawaii Revised Statutes § 603-21.9 (2016)

absent a finding of bad faith. In Sandomire v. Brown, this court

stated:
"a court may not invoke its inherent power for this purpose
absent a specific finding of bad faith. "Bad faith" is
defined as "actual or constructive fraud or a neglect or
refusal to fulfill some duty . . . not prompted by an honest
mistake as to one's rights or duties, but by some interested
or sinister motive. Although the words "bad faith" need not
be explicitly stated in the sanctioning order, the court
must make findings "tantamount to a specific finding of bad
faith," i.e., "findings that are sufficient to enable [the
appellate court] to infer a specific finding of bad faith by
the circuit court."

144 Hawai#i 314, 331, 439 P.3d 266, 283 (App. 2019) (citations

omitted). Importantly, when a court uses its inherent powers it

must do so with restraint and discretion. In Wong v. Frank, this

court stated:
The Supreme Court cautions that "[b]ecause inherent
powers are shielded from democratic controls, they must be
exercised with restraint and discretion. "A court must

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. . . exercise caution in invoking its inherent power, and
it must comply with the mandates of due process[.]"

9 Haw. App. 249, 261, 833 P.2d 85, 92 (1992) (citations omitted).

Here, the Circuit Court's findings are tantamount to a

finding of bad faith, and they are supported by the record before

the court. The Circuit Court exercised restraint in counseling

Greenberg, warning Greenberg, giving Greenberg notice of the

violations, and time to prepare a response before levying

sanctions. We conclude that the Circuit Court did not abuse its

discretion in imposing a $500 fine against Greenberg.

Accordingly, the Circuit Court's September 29, 2021

Sanctions Order is affirmed.

DATED: Honolulu, Hawai#i, August 22, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Jon N. Ikenaga,
Deputy Public Defender, /s/ Keith K. Hiraoka
for Defendant-Appellant. Associate Judge

Patricia Ohara, /s/ Sonja M.P. McCullen
Robyn B. Chun, Associate Judge
Deputy Attorneys General,
for the Honorable Robert D.S. Kim.

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