*1 ALULI, TONG ALULI NEAULANI NOA AIMA ALULI, Trustees of and KEPOIKAI CHOY ALULI, Deceased, the Estate of NOA W. v. RICHARD V.
Plaintiffs-Appellees, TRUSDELL, Defendant-Appellant
No. 5256 April 4, 1973 Levinson, Abe, Richardson, C.J., Wong Place Kobayashi, and Circuit Judge JJ., Marumoto, Disqualified J., *2 ABE, COURT BY
OPINION OF THE J. al., Aluli, The Aima Neaulani et plaintiffs-appellees, hereinafter referred to “Landlord” are the owners Honolulu, Iolani,” Ha- building “The an apartment Trusdell, waii, and V. the Richard defendant-appellant, hereinafter “Tenant” one of occupied referred to as the a month-to-month apartments building the on 4, 1971, tenancy. August On the landlord upon served August the before tenant notice to vacate on or Upon the 1971. the tenant’s refusal to vacate premises, summary commenced possession proceed- landlord ings September in the Honolulu District Court 1971.
The tenant’s second defense stated: block, eviction is to The primary purpose tenant union of which hamper or obstruct organizer defendant and member violation is the free- speech, of the defendant’s of freedom government right petition of association and dom inherent and defendant’s grievances, redress of fully more out- all as is right to petition lined in the counterclaim. granted trial, court district
Upon landlord, defense that the second ruling for the possession defenses to the any valid constitutional not raise did- from appealed The tenant action. summary possession is whether issue in judgment. primary appeal to the any had valid constitutional defenses tenant action. concluding that stating
Before our reasons for defense, allegations tenant’s do not raise a constitutional we wish to out what we consider point inadequacies on argument the tenant’s issue. one-sidedness of First, the landlord beliеve that the we The landlord seeks to vindi- tenant should be balanced. ownership right cate as an incident of hand, the other subject On premises. ato possession pursuant permissive at the end of tenancy month-to-month terminable Thus, these two month at the of either option party. coin. “rights” be the sides of the same opposite that the Second, to have assumed appears *3 rights. If any have First landlord does not the rented of seeking true that he is possession it is disagrees or dislikes that he for the sole reason premises the activities, is associative communicative or tenant’s First Amendment by the not the landlord also protected or dislikes? Is disagreements in these expressing government the relief judicial “petitioning requesting grievances”? for redress of 426, Breeden,
Third, 51 Haw. 462 P.2d in Lemle v. im- of an application we stated that 470 plied “[t]he recognition gives in leases warranty habitability It affirms today. leasing in transactions changes the essence, a transfer is, as well in sale the fact that lease is, a contrac- importantly, and more an estate in land 426, 433, Haw. 51 added.) relationship.” (Emphasis tual 470, 474. 462 P.2d a contractual relationship is
Thus, the landlord-tenant conten- the accept If we jurisdiction. in our one substantially alter- be would that we tion, mean it traditional impairing relationship ing premises the demised possession recover a landlord 420 stated,
under the terms of a lease. Or otherwise the ten obligation tenancy a month-to-month to re ant’s under land turn the the demised to the possession premises tenancy abrogated. upon lord the termination of such Cir. (3d United States v. 351 Blumenthal, 315 F.2d ; Ass’n, 87 1963) Bay Camp Meeting Wormood v. Alton 136, Roberts, (1934); A. De N.H. Wolfе 410, 412, 885, If court (1918). Mass. N.E. tenant, might by ruling were to rule as contended its contravene the provisions of the United States Constitu tion, I, Article “No part: Section which states any Obligation State shall. . . . pass impairing . law of Contracts.”1 that the ruling are the district court’s upholding
We tenant did not rights2 First Amendment claimed summary action possession constitute defense to brought following landlord for the two reasons: Amend- do not believe that the tenant’s First (1) We abrogated infringed upon ment have been the actions of the Even after the landlord re- landlord. gains under possession premises action, retain membership union, the tenant’s for redress petition freely condition of the grievances speak as about the premises. as when he is in premises, possession of Furthermore, we do not see how tenant is punished way Being his activities. a month-to-month tenant, be tenancy he had no demand that “article section 10 interesting to note the dissent asserts 1 It only action is directed obligation of contracts ‘protecting ” Then *4 courts.’ legislation judgments of impairment by not ownership an incident of hand it a landlord contends that аs the other by summary possession premises recover may land “However, by rights accomplished when the those is enforcement of action. action, prohibitions action be state action and such court dissent, one to determine Under how is applicable.” then be action? action and when it is not a state judgment is when a court’s association, right of freedom of and freedom rights 2 The to be defense to grievances, for a claimed redress of to petition as collectively will be by action the tenant referred summary possession rights.” Amendment “First extended once the current term expired. the land- When lord repossesses the at premises the end of the current term, the being is not deprived anything except his nonproprietary expectancy that tenancy his will be extended another term. most,
At only the tenant’s is that complaint allow- ing the regain landlord to possession of the premises will lessen his interest in the subject matter about he wishes to exercise his First rights. Amendment doWe believe the First Amendment claimed the tenant operate to prefer expеctancy continued possession of the over premises of the landlord regain term, possession at the end of the tenant’s so as to encourage the tenant exercising to continue First in the that the hopes conditions of his tenancy would be improved.
As stated, we already have whether he dispossessed not, he can continue to exercise the constitutional rights he claims that the summary possession action de- prives him of. Nothing being away taken from him the summary possession landlord, action because the under the terms оf the tenancy month-to-month inci- dental to the ownership premises, has the to regain possession of the premises upon termina- tion thereof.
(2) We cannot see how the requisite state action exists
in this case. The tenant’s contention of
re-
state action
quisite for the application
guar-
of First Amendment
antees is unsupported by the authorities he cites. The
tenant relies on New
Sullivan,
York Times Co. v.
U.S.
Shelley
(1964);
Kraemer,
422
Shelley Kraemer,
v.
estab
supra,
In Edwards F.2d after (Edwards) tenant landlord evicted (Habib) the District had violations of reported tenant Ap- Although codes. the Court Columbia’s sanitation Ed- Skelly through Wright, discussed Judge peals, J. on the basis argument that to allow an eviction wards’ building code violations would reported that had she and her First Amendment of free abridge grievances, redress of petitioning statutory on public policy court decided the case however, discussion, is of Id. This construction. at 699. argument appears interest since the case. Habib parallel of the dictum the Shelley remain Wright “the contours stated Judge reasoning far its just it how uncertain undefined Furthermore, hе stated that “[i]t Id. at extends.” 691. however, be, action under the what is state always under state action Amendment is Fourteenth with, the amend- Reconstruction begin To the First. particular purpose in mind: were enacted with ments black slavery and the vestiges eradicate forever *6 addition, Amend In the First language codes. of ment, ,’ is not as law ‘Congress shall make no ... the con the Fourteenth is to amenable as by by struction there or is state action inaction merely gives judicial legal privately action which effect to expounded made decisions. Indeed those who have theory their of state action have been careful to limit (foot case to the area of Id. racial discrimination.” at 693 Black, also, Action,” *7 Thus, Sullivan, under Times v. when state supra, power, is legislative, pro whether it be or exercised judicial laws, mulgate maintain the exercise that power or are subject to constitutional limitations.3 We applicable did not certain that the United Court States con general mean to a state as proposition, tends, any law consti that judicial enforcemеnt require a as to power tutes sufficient exercise of state so constitutional restraints. statute,
The 666-1 of possession HRS § state, not, face, of First on its limit the exercise does Our Amendment of the tenant. construction way a of First abridges this statute in no tenant’s exercise The here is rights. exercise of state power restoring premises per- at to the aimed by the here attempt entitled thereto. There is no son 3“ Alabama civil Although private parties, this is a between lawsuit impose petitioners which claim to applied have statе rule of law courts press. their and speech freedoms of invalid restrictions It and that in a civil action applied not that has been matters See, though Alabama only, e.g, supplemented it is common law statute. Code, power in which state Tit. 909-917. test is the form §§ form, but, whether such has power has been whatever applied fact been .” 376 exercised . . at 265. making power legislative law exercise of judicial of communication limit the content or mode regulate or in. engage a tenant desire to or association which pos- of this state awards hold that when court We motivated the landlord is to a landlord even if session and the actions disagreement his with involved, which no state action evicting, tenant he is his First to exercise infringes denies or rights. Amendment Constitutional Affirmed. Kemper Edmunds, (Mattoch,
Edward C. III Kemper, for defendant-appellant. &Brown of counsel) Greeley, Marumoto & (Padgett, Keith Steiner J. Steiner of for counsel) plaintiffs-appellees. LEVINSON,
DISSENTING OF OPINION J.
I dissent. the landlord
The tenant case asserts him his tenant union associa- wishes to evict because of members, he, along tions and because other union with the apart- to communicate about attempted complaints ment Office and to the Lieutenant Governor’s complex the State of Consumer Eviction for Office Protection. reason, tenant, argues action such amounts to state abridges his of freedom of speech assembly, petition *8 grievances, are the protected redress of all of which and First Amendment of the United States Constitution1 I, article of the the of section 3 Constitution of State Hawaii.2 pertinent part 1 The First Amendment o£ the Constitution states as follows: Congress speech freedom . . . abridging shall make no . . of assemble, to and right people peaceably petition or of the to grievances. Government for a redress of I, 2 Article Hawaii as pertinent part section 3 of the Constitution states
follows: I think that the such making complaints of and the association of such examples tenants are of conduct which afforded protection the Constitutions of the United Hawaii, States and the fact that the shield of HRS despite 666-43 (1972 retaliatory Supp.), prohibits evic- § tions, is not available the tenant to in this case because his complaints were not directed to оf Department unavailability Health as required statute. The statute, however, way ability in no affects the tenant’s to tory existing invoke constitutional ato retalia- defenses my eviction. There is no doubt in mind that viable do exist. defenses The that majority states it believes the landlord’s right of and ownership possession “permis- the tenant’s right sive” should an possession be balanced. This is misleading inaccurate and delineation of the The issues. process actually which this court undertakes requires balancing the property rights of the landlord tenant, freedom of it expression of the involves greater magnitude constitutional considerations of a than analysis the majority’s indicates. majority characterizes the landlord’s use of retaliatory process purposes speech
eviction
an exercise of his
free
In
grievances.
to
for redress
petition
no case that I have been able to discover
a landlord
has
constitutionally
argued
retaliatory
ever
that
eviction is
and,
say,
conduct
needless to
protected
majority
any.
does not cite
The most
term
oрinion
complimentary
piece
which can be used to describe
particular
novel;
accurate,
that it
be
logic is
it would more
how-
ever,
say
it
complete
compre-
reflects
failure
hend the
meaning
expression.
of the
freedom of
Finally,
suggests of the
acceptance
the majority
I, section
contentions
contravene article
abridging
...
No law shall be enacted . . .
the freedom
govern-
peaceably
petition
to assemble and to
people
grievances.
ment for a redress of
*9
427
which
of the United States Constitution
10
prohibits
of
the
states from
law
obligation
impairing
passing
this,
it would
believes
contracts.
If the
really
majority
that HRS
666-43
to
in an
case
have
hold
(a)
appropriate
§
a
unconstitutional.
Such
holding
(1972 Supp.)
Hahn,
New
Bank v.
be
to East
York
326
contrary
Savings
& O.
v. Baltimore
294
Norman
U.S.
Ry.,
230 (1945);
Loan Ass’n v.
&
Home
U.S. 240
Building
(1935);
Brown
Marcus
Blaisdell,
398
U.S.
Holding
290
(1934);
Moreover,
3
such
170
Feldman,
v.
U.S.
Co.
256
(1921).
of the fact
in view
an
analysis
superficial,
patently
affect
which
legislative enactment
3 Manychanges
in the law means of
Court
Supreme
been held
the
obligations
contractual
have
рre-existing
the
of
prohibition against
impairment
violative of the
the
holding
arisen in the areas of
obligations of contract. The cases so
have
control,
‘‘gold
provisions.
respect
and
clause”
to
mortgages,
rent
first
With
Feldman,
Holding
an
Brown
Co. v.
group,
important
case was Marcus
sought
U.S.
in which a landlord
oust a holdover tenant
(1921),
170
256
upon
and the tenant relied as
defense
a state statute
for the
providing
suspension
summary possession proceedings
emergency
of
under
circumstances.
The Court
landlord
deprived
held that
the
was nоt
of
under
clause,
Holmes,
Court,
the contract
and
writing for the
198:
said at
Justice
the
emphasis
upon
impairment
case more
is laid
present
In
obligation
new lease
of the contract of the lessees to surrender
and of
gone
year.
October
upon
to have
into effect
was
last
are
State
subject
power
But contracts
made
exercise
of the
of the
we
justified,
when otherwise
have held this to be.
affecting pre-existing
been
Laws
contracts have likewise
found constitutional
Blaisdell,
Building
& Loan Ass’n
wherein
(1934),
Home
U.S. 398
290
appеllant
validity
mortgage
contested
a Minnesota
moratorium
for
providing
postponement
sales and
extension
foreclosure
periods
claiming
in time
redemption
emergency,
it to be
repugnant
sustaining
constitutionality,
contract clause.
In
the statute’s
Chief
Hughes, writing
Court,
for the
stated that the clause “is not
Justice
an absolute one and is not
to be read with
like mathe
literal exactness
Accord,
matical formula.”
U.S. at
Savings
New York
Bank v.
& Loan
290
428.
East
Hahn,
where,
(1945),
in following
Building
Home
Blaisdell, supra,
governing
Ass’n v.
stitutional
Frankfurter described the
con
Justice
“[Wjhen
as follows:
interest
principle
widely
public
diffused
arrangements,
become enmeshed in a network
private
has
of multitudinous
safeguard
authority
of the State ‘to
the vital
people,’
interests of its
gainsaid
U.S. at
be
by abstracting
arrangement
is not to
one such
from
public
treating
though
its
context and
it as
it were an isolated
con
private
constitutionally
tract
immune from impairment.”
Finally,
U.S. at
232.
Ry.,
Norman v. Baltimore & O.
gold
The landlord cannot be denied those a including which accrue as of ownership, incidents However, general right to possession. when rights the enforcement of those is accomplished сourt action, such action be state action and constitutional retaliatory then prohibitions would be applicable. Since rights evictions inhibit of tenants under the First Amend- I, ment of the U.S. Constitution and section article 3 of Constitution, the Hawaii enforcement of such judicial action, constitutes evictions later explained and should opinion, not decreed. be has rights The conflict between and civil property prior In Marsh v. arisen before courts cases. Alabama, U.S. 501 (1946), presented the question can on whether a state impose punishment was criminal a religious who undertakes to distribute literature person contrary a to the premises company-owned town Black, management. writing for the wishes of Justice Court, following made the at 509: definitive statement When we balance the Constitutional owners of of the to property people those here, must enjoy press religion, freedom of as we occupy we remain mindful of the fact that latter before, As we have stated preferred position. safeguarded by the liberties the First exercise govern Amendment “liеs at of free the foundation “weigh ment men” in all cases free and we must the circumstances and . . . . . reasons appraise regulation rights.” ... of the ... support State, Schneider v. 161. In our view circumstance property liberty, here premises where the in deprivation volved, took held others than the place, were public, justify permit sufficient to the State’s ting govern community of citizens corporation *11 so as to restrict their fundamental liberties by enforcement of such application restraint (Footnotes state statute. omitted) The Court concluded that preference the state’s of prop- erty rights, through statute, its over First Amend- trespass ment was unconstitutional. Habib,
In Edwards v.
Cir.
(D.C.
1968),
F.2d
denied,
cert.
whether a court can with the Constitu- tion the interests of an absentee landlord in prefer
evicting a solely has reported because she housing violations o£ the code to a tenant those of her improving housing resort to her petition and to report violations of designed theory, laws for her On protection. if it would be unreasonable to the landlord’s prefer interest, it would also be unconstitutional. Mr. Justice Black, weigh who not interests where prone involved, First Amendment rights are seems to have taken writing for the Court just approach Alabama, in Marsh v. State 66 S.Ct. which, 90 L.Ed. like the instant case, abridge- involved state-aided privately-initiated ment First freedoms. (Footnotes omitted)
But, Congres- because the court was hold that able to sional enacting housing District of policy Columbia regulations for the be con- protection tenants would evictions, retаliatory solely travened decision based on grounds was avoided. retaliatory
The defense of appear eviction does very light range to be radical considered in when rights. of limitations places property one commentator points As out: result, though
Even
tenancies would not
perpetual
it
limits
plain
retaliatory
eviction
prohibiting
property
landlord’s freedom to deal with his
*12
zoning regula-
as he chooses. The same
be said of
tions,
codes,
laws,
building
safety
health and
default,
sixty day wait to evict a tenant
is not in
who
many
оther rules.
unfettered
Completely
prop-
erty has probably always
myth.
long
been a
So
as the
moderate,
invasion
rights
of the landlord’s property
only
reasonably necessary
carried to
extent
give effect
legitimate
to the competing
interests of
tenants,
there should be no doubt of its constitu-
tionality. In
a
respect,
judge-made prohibition
an invasion
against
eviction is no more
retaliatory
a statute.
the landlord’s interests than is
[McElhaney,
and Law
Landlords, Tenants
Retaliatory Evictions:
Maryland L. Rev.
(1969).]
Reform, 29
Amend-
viability
under
First
Once the
of dеfenses
I,
article
sec-
ment
and under
of the U.S. Constitution
established, the
tion
are
3 of the Hawaii Constitution
re-
is the
chief
that the tenant must overcome
problem-
responsible
be shown
quirement
rights.4
in some
sense
the inhibition of
relevant
for
This
known
“state action.”
popularly
requirement
state court
long
Court has
held that
Supreme
lawsuits,
even in
can constitute
judgments,
private
v.
leading
Shelley
state action. In the
case of
requisite
of a
Kraemer,
Other cases have dealt with rights. pur- of First Amendment For judicial processes case, of the facts before us in this the most relevant poses Sullivan, decision is New York Times Co. 376 U.S. Court held that news- where the abridged by a state rights First Amendment were paper’s Although a libel it. judgment court’s award of one, action the Court found that the the suit was a private among group of First by the are included 4 The asserted Clause by the Due applicable made to the states Process Constitution. of the Fourteenth Amendment of the U.S. I, the Hawaii Constitu- rights protected by The same article section 3 of I, 4, which action similarly applicable tion are made to state article section part: in pertinent reads life, without due deprived liberty prоperty process No shall be person of law .... *13 finding an Alabama court the Times liable damages libeling figure state action with- public was meaning of the Fourteenth Amendment:
Although private this is civil lawsuit between the Alabama a state rule parties, courts have applied claim to invalid petitioners impose law which restrictions on their constitutional freedoms of ap- It matters not that that law has been press. only, in a civil action and that it is common plied See, though e.g., Alabama supplemented statute. Code, Tit. The test not the form 908-917. §§ but, in which state has been whatever power applied form, such in fact been ex- whether has power ercised . . U.S. at .” [376 265.] holding of New York Times to the facts Applying case, in the there can be no doubt that state’s present role in the use of permitting its retaliatory landlords as a tool for the inhibi- process organizing tion of tenant unconstitu- reporting tional state action.
I reverse. notes See “State omitted). Foreword: Protection, Equal Proposition 81 California’s ; Karst, L. Alstyne Harv. Rev. 69 Van & (1967) State Action, 14 Stan. L. Rev. (1961). 3 The Sullivan, tenant cites New York Times Co. v. (1964) 376 U.S. and American Federation Labor of v. Swing, support his contention that state action required before the limitations of the First Amendment are invoked is present case. We agree that these cases stand for the mon law or judge-made law is the functional equivalent that com- proposition law; statutory and that where the legislature is constitutionally proscribed enacting from laws which abridge First Amendment rights, the judicial law- making power should likewise be circumscribed. In American Federation Labor v. at Swing, supra 325, the United States Court Supreme stated: are We asked to sustain a decree a state [of court] which for purposes of this case asserts as com- mon law a state that “peaceful there can be no picketing peaceful persuasion” relation to dispute an employer between trade union un- less the employer’s own employees controversy are in with him. Such a ban of free communication inconsistent the guarantee with of freedom of speech [emphasis . . added]. . case, supra, In what constituted the Times Sullivan en- making and judicial judicial state action was law The forcement the state in itself. case involved Sullivan, public an prosecuted civil libel action elected Alabama, based an editorial official of contents Co. The advertisement the New York Times printed States summarized the Alabama United Court page law and at stated: this rule us is whether before question liability by public to an action applied brought conduct, abridges official critics official of his guar- press freedom and of (em- anteed the First and Fourteenth Amendments phasis added)