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IN THE SUPREME COURT OF THE STATE OF HAWAI#I ---o0o--_________________________________________________________________ VINCENT M. SETALA, Plaintiff-Appellant vs. J.C. PENNEY COMPANY, SHARLENE PACHECO, LAMAR KAUFFMAN, RYAN TAKAHASHI, DEANNA STRIKOLIS, JUBAHL HASHIMOTO, and GARY HARMS, Defendants-Appellees _________________________________________________________________ NO. 22943 APPEAL FROM THE FIRST CIRCUIT COURT (CIV. NO. 97-0900) FEBRUARY 8, 2002 LEVINSON, RAMIL, AND ACOBA, JJ.; WITH MOON, C.J., CONCURRING SEPARATELY, AND WITH WHOM NAKAYAMA, J., JOINS OPINION OF THE COURT BY ACOBA, J. We hold that a notice of appeal is deemed "filed" for purposes of Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(a) on the day it is tendered to prison officials by a pro se prisoner. Accordingly, we remand this case to the first circuit

court (the court)1 for an evidentiary hearing, consistent with this opinion, on the issue of whether Plaintiff-Appellant Vincent M. Setala (Plaintiff) tendered his notice of appeal to prison officials on or before the deadline.

I. This case arises out of a shoplifting incident on March 21, 1994, when Plaintiff entered Defendant-Appellee J.C. Penney Company's (J.C. Penney) store at the Ala Moana Shopping Center and was subsequently detained by J.C. Penney employees. After being apprehended by J.C. Penney employees, Plaintiff pled no contest and was sentenced to a term of incarceration. Plaintiff subsequently filed a complaint against J.C. Penney and others [hereinafter collectively, Defendants] for personal injury arising out of the foregoing incident. At the time that he did

so, Plaintiff was, and currently remains, incarcerated at the H~lawa Correctional Facility on O#ahu. Defendants filed a motion

to dismiss on February 12, 1999, arguing that the two-year statute of limitations had run between the time of the incident, March 21, 1994, and the date Plaintiff had filed his complaint, March 7, 1997. On April 16, 1999, the court granted Defendants'

motion, agreeing that the applicable statute of limitations period had run.

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The Honorable Dexter D. DelRosario presided over this matter.

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Plaintiff appealed, signing his notice of appeal on May 14, 1999. The notice was not filed until June 10, 1999.

Plaintiff also filed a motion for reconsideration on June 10, 1999. On September 22, 1999, Plaintiff's motion for Due to the motion for

reconsideration was denied.

reconsideration, the time for appeal was tolled, and this court dismissed Plaintiff's first appeal on November 1, 1999. Plaintiff filed a second notice of appeal, which was filed on November 5, 1999, but which was dated October 17, 1999. Defendants filed a statement of jurisdiction arguing that Plaintiff was fourteen days late in filing his notice, and that Plaintiff's appeal should be dismissed as untimely. In his

statement of jurisdiction, Plaintiff contends that, within the thirty-day period for appeal, he "placed the Notice of Appeal into the Halawa Prison Mail System on October 18, 1999, which date may be ascertained by the Correctional Officer's signature with date/time information that is written upon the back of the envelope at the time it is (by prison policy) sealed,[ ]stamped `confidential', and then placed in the prison mailbox." envelope, however, is attached to the notice of appeal. No

II. Plaintiff contends that his notice of appeal is timely on the basis of the "Houston Rule," set out by the United States

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Supreme Court in Houston v. Lack, 487 U.S. 266 (1988).

In that

case, the Court, recognizing the unique circumstances of pro se prisoners, held that a notice of appeal in a habeas corpus case is deemed filed, under the rules pertaining to civil cases, at the time the prisoner delivers the notice to prison authorities for forwarding to the courts.2 Relying on Federal Rules of

Appellate Procedure (FRAP) Rules 3 and 4, the Court determined that "nothing in Rules 3 and 4 compels the conclusion that, in all cases, receipt by the clerk of the district court is the moment of filing."3 Id. at 274. Pointing out that, unlike other

2 The pro se appellant in Houston filed an appeal from a district court's dismissal of his habeas corpus petition. See 487 U.S. at 268. The prisoner deposited it with the prison authorities for mailing to the District Court twenty-seven days after the order. See id. This date of deposit was recorded in the prison log of outgoing mail. See id. The notice of appeal was not filed, however, until thirty-one days after the order, which was outside the thirty-day appeal period. See id. Further, the record did not contain the envelope in which the notice of appeal was mailed, and therefore did not contain the postmark or any other evidence of when the prison authorities actually mailed the letter. See id. The petitioner may have mistakenly used the post office box number of the state supreme court rather than that of the federal district court (both of which were in Jackson, Tennessee, approximately 81 miles from the prison). See id. The Sixth Circuit dismissed the appeal as untimely. See id. at 269. The Supreme Court subsequently granted certiorari. See id. 3 The Houston Court construed FRAP Rule 4(a). See 487 U.S. at 272. FRAP Rule 4(a) states, "When a civil appeal is permitted by law, the notice of appeal shall be filed within 30 days after entry of the judgment or appealable order. The notice of appeal shall be filed with the clerk of the court from which the appeal is taken." According to the Court, "Rules 3(a) and 4(a)(1) thus specify that the notice should be filed `with the clerk of the district court[,]'" and that while "[t]here is . . . no dispute here that the notice must be directed to the clerk of the district court[,] . . . the question is one of timing, not destination: whether the moment of `filing' occurs when the notice is delivered to prison authorities or at some later juncture in its processing." Id. at 272-73. HRAP Rule 4(a) is similar to FRAP Rule 4(a), although arguably somewhat less ambiguous than the federal rule. HRAP Rule 4(a) states that "the notice of appeal required by Rule 3 shall be filed by a party with the clerk of the court or agency appealed from within 30 days after the date of entry of the judgment or order appealed from." HRAP Rule 3 similarly does not require

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civil litigants, pro se prisoner litigants cannot personally travel to the courthouse to ensure that their notice is stamped "filed" by the clerk, id. at 271, the Court departed from the general rule that receipt by the court clerk is required by the declared deadline:
The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30day deadline.

Id. at 270-71.

Because a prisoner has no choice but to turn over

his or her notice of appeal to prison authorities for forwarding to court clerks, the pro se prisoner is not similarly situated with other civil litigants. See id. at 275.

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receipt by the clerk. "An appeal permitted by law from a court or agency to the Hawai #i appellate courts shall be taken by filing of a notice of appeal with the clerk of the court within the time allowed by Rule 4." HRAP Rule 3. Further, Hawai #i Rules of Civil Procedure Rule 5 states that "[t]he filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him or her." Although there is a difference between the federal rule and HRAP Rule 4(a), other jurisdictions with similar appellate court rules to HRAP Rule 4(a) have adopted the Houston rationale. See Arizona Rules of Civil Appellate Procedure Rule 9(a) ("A notice of appeal required by Rule 8 shall be filed with the clerk of the superior court not later than 30 days after the entry of the judgment from which the appeal is taken, unless a different time is provided by law.") and Mayer v. State, 908 P.2d 56 (Ariz. App. 1995); California Rules of Court Rule 31(a) ("In the cases provided by law, an appeal is taken by filing a written notice of appeal with the clerk of the superior court within 60 days after the rendition of the judgment or the making of the order.") and In re Jordan, 840 P.2d 983 (Cal. 1992); Massachusetts Rules of Appellate Procedure Rule 4(b) ("[T]he notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within thirty days after entry of the judgment or order appealed from; or entry of a notice of appeal by the Commonwealth; or the imposition of sentence.") and Commw. v. Hartsgrove, 553 N.E.2d 1299 (Mass. 1990). See also Nigro v. Sullivan, 40 F.3d 990, 994 (9th Cir. 1994) ("`[File],' left undefined, [is] susceptible to the construction given [it] in Houston[.]").

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Although the Houston Court based its holding on an interpretation of the federal rules, other jurisdictions have also based their adoption of the "mailbox rule" on constitutional equal protection and equal court access grounds. See Haag v.

State, 591 So. 2d 614, 617 (Fla. 1992) (discussing the constitutional implications of not allowing a "mailbox rule").
A rule other than the mailbox rule would interject a level of arbitrariness that could undermine equal protection and equal access to the courts. For example, two pro se inmates who delivered a document to prison officials at the same time, seeking the same relief, and facing the same court deadline, could be treated quite differently based entirely on happenstance. One inmate's petition might make it to the courthouse on time, while the other's might be delayed for unknown reasons. The first would obtain a full hearing, while the second would be denied relief. Such arbitrariness cannot fairly be characterized either as equal protection or equal access to the courts, and it therefore cannot be allowed.

Id.

In Haag, the Supreme Court of Florida addressed the state

constitutional implications of denying application of the mailbox rule to incarcerated prisoners, when considering a pro se motion for post-conviction relief. See id. at 615-17. "Under the

Florida Constitution,[4] all persons have a right to equal protection of the laws . . . . Obviously, this includes a right

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Art. I,

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