State v. Nakata8/2/1994
ubstantive right. See State v. Chapman, 15 Kan. App. 2d 643, 814 P.2d 449 (1991); and Bertolino v. Industrial Comm'n of Ohio, 43 Ohio St. 3d 44, 538 N.E.2d 1040, reh'g denied, 44 Ohio St. 3d 706, 541 N.E.2d 626 (1989). However, unlike the cases before us, we note that both cases dealt with statutory (not constitutional) grants of jury trials.
In Chapman, the defendant faced a speeding charge. Although a jury trial for a traffic offense was not guaranteed by the Kansas Constitution, a state statute granted the defendant that right. Chapman, 15 Kan. App. 2d at 644, 814 P.2d at 450. While the action was pending, the legislature amended the statute to eliminate the jury trial right. The Kansas appellate court held:
We believe [defendant] had a substantive right to a jury trial under a previously existing state law. Although this right could be modified, the repeal of the law which conferred the right should not have a retroactive effect so as to deprive [defendant] of the jury trial to which he was entitled.
It is difficult to conceive of a more fundamental right than an accused's right to a jury trial. In the absence of clear statutory language to the contrary, we believe the legislature intended the statutory changes, discussed here, to operate prospectively only, and not retroactively.
Id. at 646-47, 814 P.2d at 451 (emphasis added). In the instant case, however, there is "clear statutory language to the contrary." As noted previously, Act 128 provides that "the amended penalty provisions for first time offenders shall be retroactive for all pending first time offense cases for ." 1993 Haw. Sess. Laws at 180.
Similarly, in Bertolino, a party had a statutory right to have a jury determine damages for an intentional tort. Bertolino, 43 Ohio St. 3d at 44, 538 N.E.2d at 1040. While appellant's case was pending, the legislature amended the statute, eliminating the jury trial right. The Ohio Supreme Court held that because the right to a jury trial is substantive, it could be applied prospectively only (regardless of legislative intent) Bertolino, 43 Ohio St. 3d at 46, 538 N.E.2d at 1042. However, the court in Bertolino relied on a ban against retroactivity grounded in Ohio's Constitution itself. See Ohio Const. art 2, § 28 ("The general assembly shall have no power to pass retroactive laws[.]"). Hawaii's Constitution has no such provision. Rather, as noted previously, Hawaii law provides, by statute, that "no law has any retrospective operation, unless otherwise expressed or obviously intended. " HRS § 1-3 (emphasis added). The intent of the legislature that HRS § 291-4, as amended, have retroactive application is clearly set forth in Act 128.
b. Fundamental Fairness of Retroactive Application
Appellants also argue that retroactive application of court decisions is fundamentally unfair, citing State v. Ikezawa, 75 Haw. 210, 857 P.2d 593 (1993). Ikezawa was originally charged with third degree assault, which was dismissed without prejudice. Fourteen months later, based on the same incident, Ikezawa was charged with second degree assault. Prior to trial, Ikezawa moved to dismiss on the ground that the six-month period within which trial must commence under Hawaii Rule of Penal Procedure (HRPP) 48(b)(1) had lapsed. The court denied the motion, and Ikezawa was subsequently convicted of the lesser included offense of assault in the third degree. Ikezawa appealed the court's denial of his Rule 48 motion.
The issue on appeal involved the retroactive application of our decision in State v. Balauro, 73 Haw. 70,
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