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Setala v. J.C. Penney Company2/8/2002
uate, effective, and meaningful access to courts to challenge violations of constitutional rights); Wolff v. McDonnell, 418 U.S. 539, 578 (1974) (instructing that access of prisoners to the courts for the purpose of presenting their complaints should not be denied or obstructed); Johnson v. Avery, 393 U.S. 483, 485 (1969) (prisoners' right of access to courts may not be denied or obstructed).
Accordingly, we temporarily remand this case to the trial court for an evidentiary hearing to supplement the appellate record regarding the timeliness of Plaintiff's tendering of his notice of appeal to Halawa officials. Plaintiff will be allowed to submit evidence such as that allowed in the cases supra, in order to demonstrate that he did tender prison officials his notice of appeal for forwarding to the circuit court within the time specified for appeal under HRAP Rule 4(a). See, e.g., Hostler v. Groves, 912 F.2d 1158, 1162 (9th Cir. 1990), cert. denied, 498 U.S. 1120 (1991); Miller, 872 F.2d at 289. Defendants, of course, shall be allowed the opportunity to refute such evidence as Plaintiff submits.
VI.
Unlike other envelopes from non-incarcerated litigants, of which the court need only retain the postmark to establish a "filing date," envelopes from incarcerated litigants bear other information, such as the initials of prison officials and the date on which the envelopes were tendered to them. Consequently, courts must retain the entire envelope received from an incarcerated litigant and attach it for filing with the document transmitted. Most correspondence from incarcerated litigants is marked as such and should be readily identifiable.
In accordance with the remand in this case, the clerk of this court shall immediately transmit to the court the lower court record docketed under this appeal. Upon completion of the necessary proceedings and the court entering its findings of fact and conclusions of law, the clerk of the first circuit court shall retransmit to this court the lower court record, as supplemented, on or before June 3, 2002. In all other respects, this court retains jurisdiction of this appeal.
CONCURRING OPINION BY MOON, C.J., WITH WHOM NAKAYAMA J., JOINS
I concur with both the interpretation of the Hawaii Rules of Appellate procedure and with the result reached by the majority. However, given that: (1) no constitutional issues were raised by the parties; (2) there is no controlling federal constitutional authority on point; and (3) " t is axiomatic that appellate courts should pass upon constitutional issues only where the case is such that a decision of such issues is unavoidable," State v. Kam, 68 Haw. 631, 635, 726 P.2d 263, 266 (1986), I do not interpret the majority's opinion as deciding any constitutional issues.
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