A recent Hawaii Supreme Court ruling asserting that criminal complaints may be dismissed if they do not follow a procedural law requiring a signed affidavit or official declaration from the complaining party is resulting in the dismissal of dozens of misdemeanor cases.

The Dec. 10 opinion makes clear that HRS 805-1 requires prosecutors to ensure that a criminal complaint is supported by either the complainant’s signature or a declaration submitted in lieu of an affidavit.

The court was considering a 2017 misdemeanor domestic abuse case against a Kona man that was dismissed for lack of a probable cause affidavit and other evidence, only to have the dismissal set aside by the Intermediate Court of Appeals in June 2020.

The defendant, Corey Thompson, had appealed to a Family Court judge on the basis the state submitted no probable cause affidavit, only a complaint signed by a deputy prosecuting attorney, before he was charged and called to court. After the appeals court’s decision, Thompson’s attorney made a formal request for the Hawaii Supreme Court to review the case.

In reversing the Intermediate Court of Appeals ruling, the high court said: “Critically, the complaint was neither signed by a complainant nor supported by a declaration. The State consequently did not comply with its statutory obligation to perfect the complaint. In turn, the family court erred in issuing a penal summons.”

The opinion was issued by Chief Justice Mark Recktenwald, Associate Justices Paula Nakayama, Sabrina McKenna and Michael Wilson and acting Justice Rowena Somerville.

To date, 33 petty misdemeanor and misdemeanor cases have been dismissed on Oahu because of the Thompson ruling, almost all of them “without prejudice” so prosecutors will be able to refile them, according to the Honolulu Department of the Prosecuting Attorney.

State Public Defender James S. Tabe said the Supreme Court opinion makes it clear the criminal procedure rule is still unchanged but some prosecutors have not been complying. Tabe’s office is filing motions and making oral requests to dismiss defective complaints based on the Thompson ruling.

“We think it applies to felonies too. It doesn’t mean the case is dismissed (for good), it just means they have to start over with the proper paperwork,” Tabe said. “If the case is going to be dismissed, I think it behooves the prosecutor to try and work out a deal. I think that is what they should do.”

Refiling cases is time-consuming for both prosecutors and defendants, and restarts the criminal proceeding, Tabe said. Prosecutors, after refiling the case, must serve defendants with a penal summons and refiled complaint, which can be a difficult process.

Police, deputy sheriffs or prosecutor’s staff will have to find the defendants to personally serve them, and any significant delay in service may result in a dismissal, he said.

Prosecutors in each county are reviewing the ruling and considering how to handle cases that have already been dismissed because of it.

“Several years ago, the department changed its practices regarding filing of misdemeanor cases in the event of an adverse result in the Thompson case,” said Honolulu Prosecuting Attorney Steve Alm in a statement. “The department believes that its current practices are sufficient under the Hawaii Supreme Court’s recent decision. Nevertheless, we will be asking the legislature to pass a bill clarifying the statute in question.”

Maui Prosecuting Attorney Andrew H. Martin said that a number of defense motions to dismiss have been made as a result of the Thompson decision. In the 2nd Circuit, the judges have been requiring the defense to file written motions, he said.

“Unfortunately, with a legislative history that dates back 130 years and the decision written in such a way that ambiguities remain, we will be litigating a number of issues over the next couple of months,” Martin said. “We have adjusted our procedures for the filing of misdemeanor complaints so that they include a declaration in light of the Supreme Court’s ruling. We are also amending complaints as allowed by the rules of penal procedures and we continue to make just and reasonable plea offers, although we are taking into account the Thompson decision when appropriate.”

He said the ruling is clear that a dismissal without prejudice is appropriate and the state retains the ability to refile charges, but the immediate consequence is a “glut” of litigation in trial courts.

Kauai County prosecutors believe their charging practices meet the standard of the ruling.

“It is our office’s position that our charging documents comply with the requirements outlined in Thompson,” said acting Prosecuting Attorney Rebecca V. Like. “We are aware of the issue and will continue to monitor decisions in other circuits to make sure we remain so.”

Hawaii County is taking a wait-and-see approach while evaluating the ruling and how suspects are charged.

“There have been developments across the state and we have been in communication with the other county prosecutors offices,” said Hawaii Prosecuting Attorney Kelden B.A. Waltjen.

State Sen. Karl Rhoads (D, Downtown-Nuuanu-Liliha), chairman of the Committee on Judiciary, said lawmakers will seriously consider any request from prosecutors to clarify existing state law in light of the Supreme Court opinion. At the moment, it looks like a number of cases will have to be refiled, but in the long run the ruling is not likely to make much difference, he said.

“Presumably you’ve got some evidence,” Rhoads said. “If you don’t have any evidence, you shouldn’t bring the case anyway.”